AN innkeeper's CUSTODY. 115 



A farmer, sued by an innkeeper for delivery of a horse 

 wintered with hitn, alleged an express contract that it was 

 lent for the whole Avinter, and was not to be redemanded till 

 spring, and also founded on a local custom of horses being 

 kept and used for farm purposes by farmers during winter 

 and spring in exchange for their keep. It was held, on his 

 failure to prove either the agreement or the alleged custom, 

 that the contract was terminable at the will of either party. (a) 



87. Of an Innkeeper's Custody. — The edict, nautce, cau- 

 pones, stahidarii,(lj) has so far been adopted in the law 

 of Scotland as to render public carriers, (c) innkeepers, 

 and stablers answerable for restitution of a horse in the 

 same condition as they receive it ; unless it has perished, or 

 has suffered injury by inevitable accident,(cZ) or by the 

 negligence of the guest himself (e) But it Avould appear 

 from the edict itself (/) that stable-keepers are not within 

 the clause unless they are also innkeepers who receive 

 guests ; and therefore the edict applies only to innkeepers 

 proper, and the responsibility of livery-stable keepers and 

 graziers is limited to that of a bonus iKdevfamilias, as 

 already explained, (5^) while the responsibility of an innkeeper 

 is very much higher than that of a stabler or grazier ; and 

 furthermore, in regard to a horse or carriage, an innkeeper 

 cannot obtain any benefit from the Innkeepers Act, which 

 permits him on certain conditions to limit his responsibility, 

 inasmuch as horses and carriages, and any gear appertaining 

 to them, are expressly excluded from its operation. (/i) "The 



(rt) Brown v. M'ConneU, 1876, 3 R. 788. Proof of what usually occurs is not 

 proof of custom, per Lord Gifford. 



(6) The meaning of this word is not a livery-stable keeper pure and simple, but 

 an innkeeper who has stables, or an hostler. See Denman, J., in Nugent v. Smith, 

 1875, L.R. 1 C.P.D. 19, p. 29, w, and Blackburn, J., in Scurlc, cit., § 80. 



(c) § 93. 



id) § 93, 108. 



(e) Armistcad v. White, 1851, 20 L.J., Q.B. 524 ; per Erie, 0. J., Ex. Ch., 

 CashiU V. Wrirjht, 1856, 2 Jur., N.S., 1072. 



(/) Dig. iv. 9, 5. See Juridical Review, vol. iii., 1891, p. 306. 



(ir)§80. (A) 26 & 27 Vict. c. 41. 



