116 AN innkeeper's custody. 



law is express that if the goods " (and horses and carriages 

 must be inchidod under goods) " perish even without his 

 fault, he is Hable, unless the loss has happened damno fatali ; 

 — i.e.,hy an accident which could be neither foreseen nor with- 

 stood."(a) Where a guest leaves his horse at an innkeeper's 

 and goes away himself, the innkeeper is still liable for any 

 injury to the horse occurring in the absence of the owner, 

 as he is a gainer by the transaction. (6) 



By both Scotch and English law an act of God or the King's 

 enemies is sufficient to relieve the innkeeper of his responsi- 

 bility, (c) Lightning, storm, and tempest are damna fatalia. 



Loss by robbery, it is thought, is an accident for which 

 the innkeeper would be responsible ;(cZ) but the responsi- 

 bility undoubtedly extends to theft, (e) Accidental fire, how- 

 ever, is regarded as a damnur)i fatale, and an innkeeper, if 

 a lire break out in his stables, is not liable for the loss of 

 his guests' horses, unless, of course, the fire was caused 

 by his own or his servants' negligence. Thus, an inn- 

 keeper was held not liable for the value of three horses 

 belonging to a guest, destroyed through the stable (which was 

 lighted by a lantern of the ordinary construction) taking fire, 

 although the last person in the stable was the guests' groom, 

 who was intoxicated and smoked a pipe.(/) The Mercantile 

 Law Amendment Act, which expressly made carriers liable 

 for loss by fire of goods under their cave,(g) makes no 

 mention of innkeepers' liability, which affords additional 

 weight to the decision referred to. 



Though an innkeeper has the custody of a horse, he is not 



(a) Ersk. iii. 1, 28. [Erskine there says, " If, e.(j., they have been lost by storm 

 or carried ofif forcibly by pirates or housebreakers, " but he gives no case in support 

 of this statement.] 



(b) York V. Grindstone, 1 Salk. 388. 



(c) As to what constitutes a damnum fatale, see Smith's L.C. i. 241. See also 

 §§68,74,75,93,108,116. 



(d) Ersk. iii. 1, 28. But see B.C. i. 499, where this is doubted. 



(e) Williamson v. White, 1810, 15 F.C. 712 ; M'Pherson v. Christie, 1841, 3 D. 

 930 ; Yorke v. Oreenhaugh, 2 Lord Raymond, 866. 



(/) McDonnell v. Ettlcs, 1809, 15 F.C. 460. 

 (Sr) 19 & 20 Vict. c. 60, § 17. 



