SUPREME COURT.—In Banco.

Taranaki Herald, Volume XXII, Issue 2196, 25 April 1874, Page 3

SUPREME COURT.— In Banco.

Tubsdat, April 21, 1874.— Bofore hiß Honor 7>lr. Joßtice Richmond. LIABILITY Of INNKEEPEBS. This was an appeal from a decision of the Resident Magistrate at Patea. Theodore Eapagne, of Hairora, hotelkeoper, appellant ; and Daniel E. Toohill, of Fatea, cattle dealer, respondent. Mr. Hughes for the appellant, and Mr. Hammerton for the respondent. Mr. Hnghes read the case, stated under the provisions of the 100 th seotion of the " Resident Magistrate's Aofc, 1867," which was as follows :— In the Supremo Court of New Zealand, and in (he matter of an appeal from the determination of <ue, the nndersigned, James Townsend Edwards, Esq., of VVanganui, in the Province of Wellington, Resident Magistrate in and for the Upper Wanganoi District, in. a proceeding before me, at Carlyle, in tho Provinca of Taranaki, between Daniel E. Toohill, of Patea, cattle dealer, plaintiff, and Theodore Eapagne, of Htiwera, hotelkeeper, defendant. The plaintiff, ia his particulars, claimed for value of three head of cattle lost from defendant's paddock when in defendant's charge on or about the 12th July, 1873, at £6, £18 ; two days' loss of time of plaintiff in looking for the said cattle at £1, £2 ; two days' loss of timo of man in looking for the said oattle at 155., £1 10s. The defendant pleaded non csiumpsit, and for a further plea that he was not guilty of snob, neglect as to make' him liable for the escape of the said oattle, and after hearing the parties, and the evidence adduced by them, I, the said James Townsend Edwards, dtf on the 16th day of October, 1873, decide that the defendant was responsible, as an innkeeper and agistor, for the said loss, and adjudged him to pay to the plaintiff the sum of £19, and £4 Bs. for costs. The defendant alleging that he was aggrierod by the said determination as being erroneous in point of law, did within three days (by depositing ia Courc tho sum of £20, and by giving a bond for the further sum of £20), thereafter give notice of appeal, and did gire security to the satisfaction of Honry Ferdinand Turner, Esq., a Justico of the Peace and Resident Magistrate at Carlyle, for the execution of the final order, and, in pursuance of the Act in snob case, made and provided, I, thp Baid James Townsend Edwards, at the request of the plaintiff, state the following oaao :—lt: — It was proved npon the hearing that on the 9lh day of Jnly last, the plaintiff called oa the defendant, an hotel-keeper at Hawera, and asked to be allowed to pnt some cattle in tho defendant's paddook. The defendant replied that he had a secure, nowly-fenced fiftyacre paddook abont one mile and a-half distant, in which plaintiff might put oattle. The plaintiff Baid that that was too far off. The defendant then said, " I have one abont balf-a-milo away which keeps ray horses and oattle safe, yoa can pat yoar cattle in there, bat I do not make myself responsible for any caitlo or horses that are pnt in my paddocks." Tho plainiiff then placed his cattle in the last named paddock, aud on the following day he took out hiß oattle, and proceeded with them towards Oeo. On the evening of the 12th Jnly last, abont dark, the plaintiff came to defendant's hotel, and said to defendant, " I have pat some cattle id your paddock." " All right," replied the defendant. On the following morning, about 10 o'olook, the plaintiff left the hotel, previously paying hiß account, whioh included a charge of twopence a- head (an amount fixed by bimsolf), for the keep of the cattle. On going to the paddock the plaintiff found that four of his cattle had broken ont of Ihe paddook. He recovered one of them, but the other three were never afterwards seen or heard of, although the plaintiff spent at least two daya in searching for them. These missing oattle were brought from Oeo by plaintiff, and had been left there some time before by him. On a journey vp 1 the coast, the plaintiff had lost them there. The plaintiff bad bonght them from Mr. Hnnger. Tho paddock in question was well fenced for ordinary purposes with a ditch and bank, and had always safely kept the defendant's horses and cattle, and the horses and oattle of other porsonß, whioh the defendant was acouastomod to take in to keep ; and on the day in question the fenoe was sound, except a gap where there was a rail put np. Neither at the time in question (the 12th day of July), nor before □or after had any horses or cattle placed in this paddock, except the three head of oattle claimed by the plaintiff, and the one afterwards found by him, escaped therefrom. On th» morning of the 13th, a newly-made gap, through whioh the oattle had escaped, was found in the bank and ditch that formed the fenoe of the paddook, which gap waa afterwards securely closed by a single rail. The bank and ditch had been erected about twelve monf bs. I determine that the matter hereinbefore stated, afforded no gronud of answer or defence to the Raid aotion. The question for the opinion of the Court is whether the said decision was erroneous in point of law. — J. T. Edwards, R.M. His Honok said that he would excuse Mr. Hnghes from any arguments he might adduce in opening the case. There did not appear, on the face of the case stated, to bo any facts raising a liability. The magistrate had apparently gathered a legal inference from facts whioh oonld not be borne out. It would be better (o call upon Mr. Hum merlon first to add nee what he could iv support of the other side of the question. Mr. Hammeuton, in an argument at some length, oontonded that if tho appellant were not liable as an inkeoper, he clearly was aa a bailee for hire, and that the cattle having escaped from the appellant's paddock, the burthen was cast opon him of proving that there was no want of ordinary oare on his part. His Honok, without calling on Mr. Hughes, said that the law respecting the liability |of innkeepers had been settled five hundred yearn since. Calye's case was the one usually cited in reference to au innkeeper's liability at common law. If the attention of the Resident Magistrate had been oalled to thia case, trne rale in the matter could not have esoaped him. In Calye's case, it was resolved by the whole Court that, " if a man comes to a oommon inn, and delivers his horse to the hostler, and roqaireß him to put him to pasturo, whioh is done aooordingly, and tho horse is stolen, the innhoider shall not answer for it." The words of the writ which lieth against tha hostler are — " Ennim lona et vitalla infra hospitia ilia ej)istentia," t Ac. ; so that the innholder, by law, shall answer for nothing that is out of his inn, but only for those things which are infra liospitium (i.e., within the inn." There still, however, remains the question of the appellant's liability as an agistor. (His Honor referred to Story on Bailments, Beotion 443). The bailment in this case was reciprocally beneficial. The Appellant was called npon to exorcise ordinary diligence, and was responsible only for ordinary neglect. The case bliows no negligence on his part whatever ; and, farther, the respondent was mado aware that the paddook noar at band wa3 not bo seenre as the one more distant. The Resident Magistrate appeared to have inferred neglect ; bat he should have insisted upon some positive evidence in relation to that question. Upon the faots as stilted, there was do case for tho roBpondent. The appeal must be allowed, with

OJSta. Whew is a baby not a baby ? — When it's a tea.thing. A Witty scientist once silenced a London flsh-woman, who was pouring out at him a tlood of rile talk, by hurling at her, in emphatic tones, the langnage of palaeontology, thus : " You ichthyosaurus, yon pterodactyl, I'll send you to the palezoic regions; I'll feed yoa on cophalopoJs, and saarians shall consume your parietals." In blank silence the woman stared at her enomy, and did not utter a word in reply.