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B. Lien given by wrongdoer, when good against true owner.
ROBINSON v. WALTER.
(Reported 3 Bulst. 269.) In an action upon the case for a trover and conversion brought by the plaintiff against the defendant, being an innkeeper, for a horse.
The case, upon the defendant's plea in bar, was this : The defendant keeping a common inn, a stranger brings the plaintiff's horse into this common inn of the defendants, there sets him for some time, and afterwards goes his way, leaving the plaintiff's horse there as a pledge for his meat.
The defendant, being the innkeeper, being not paid for the meat of the horse, retains the borse for his meat ; the plaintiff afterwards, being the true owner of the horse, and hearing that his horse was there, demanded his horse of the defendant, who refused to deliver him. Upon this he brings his action. The defendant by way of plea in bar, sets forth all this matter of his keeping a common inn, how that the horse was brought thither, and there left at meat, which was unpaid, and that he retained the horse for his meat, till he was satisfied for the same, and that if the plaintiff would pay him for his meat, he would then deliver the horse to him, but not otherwise ; upon this plea the plaintiff demurred in law.
Upon the first opening of this case, the court inclined to be of opinion against the plaintiff'; that the defendant's plea was good, and that he might well retain the horse, and that against the plaintiff, being the true owner of him, until he was satisfied by him for his meat, and notwithstanding his horse was left there by a stranger, unknown to the owner; and for this was remembered the books of 39 H. 6 fol. 18 b., and 5 H. 7 fol. 15 b., the case of the leather converted.
DODDERIDGE, Justice. This is a common inn, and the defendant a common innkeeper, and this his retainer here is grounded upon the general custom of the land: he is to receive all guests and horses that come to his inn; he is not bound to examine who is the true owner of the horse brought to his inn ; he is bound, as he is an innkeeper, to receive them, and therefore there is very great reason for him to retain him, until he be satisfied for his meat which he hath eaten ; and that the true owner of the horse cannot have him away, until he have satisfied the innkeeper for his meat.
The court agreed with him herein, but the court said, that this being a new and a good case, they held it fit to be argued by counsel on both sides, and so for this purpose, this case was adjourned to a further time.
Afterwards, (S.) Termin. Trin. 15 Jac. B. R., this case was moved again, and argued on both sides.
Divers authorities were cited, and reasons urged, and enforced for the defendant, that the plea was good. That the defendant being a common innkeeper, may retain a horse, brought into his inn, and there left, until he be paid for his meat, and for this purpose, Coke 8. pars. fol. 146, 147 a, the Six Carpenters' Case, was cited, and 5 E. 4 fol. 2 b. placito 16. That an hostler may well detain a horse, if the master will not pay for his meat, and so of a tailor a garment by him made, till he be paid for it; and so is 22 E. 4. fol. 49 b. Several reasons urged for this, as (S).
1. In respectu loci, this being a common inn, where he is compellable to receive horses coming thither, and is not to examine whose they are, and this place hath a privilege, as to a distress, not to be there distrained by another, as a millstone not to be distrained, by 14 H. 8. fol. 25 h ; nor a horse at the smith's shop, by 22 E. 4, fol. 49 b., 7 H. 7 fol. 2 a. A horse not to be there distrained for the prejudice of the commonweal, nor yet in a market or fair; so that an inn is there compared to a market. A second reason of this (S),
2. Why he may detain a horse for his meat, nothing more reasonable, as it was urged. An infant shall be bound by his bond for his meat.
If one drives the cattle of another into the ground of I. S. he may, as it was urged, detain them, till he be satisfied for the hurt done by them.
3. Because here was no default in the innkeeper, who did entertain him ; neither is he to deinand whose horse this was, for that every man hath a license in law, to come with his horses into an inn, and the innkeeper cannot put him back; and so is the Six Carpenters' Case before remembered ; but he may detain them for their meat. Mich. 6. Jac. B. R. between Harlow v. Wood, the same case was (as is here now in question) and resolved that an innkeeper may retain and keep a horse left in his inn for his meat, though it be the horse of a stranger.
MOUNTAGUE, Chief Justice. Where one is hired to serve, there he shall not wage his law, because compellable. Communia hospitia are compellable to receive guests and their horses; and so he is to answer for them, which are brought thither; the custom of London is good and reasonable, how long to stay, not till he eats out more than his head; the innholder may sell him presently, and this is justifiable. Here in this case, the innkeeper said to the plaintiff, Prove the horse to be yours, pay for his meat, and you shall have him. This is no denial, nor yet any conversion, he claims no property at all; he only detains the horse, till he be satisfied for his meat, and so he may well do by the law; he may keep him, till he be paid for his meat, because he is DODDERIDGE, Justice. One who hath no keeping for his horse, doth devise this way to send his man with him to an inn, and to let him stand there, and afterwards to come thither himself, and of the innkeeper to demand his horse, and upon his refusal, to bring his action upon the case ; this is a fine trick for the plaintiff to have his horse kept, and to give the innkeeper nothing for the same; but instead of paying of him for his meat, to pay him with an action, which he hath no cause so to do, as this case here is, the innkeeper may well justity the keeping of his horse, till he do pay him for his meat, which is all he desires to have.
HAUGHTON, Justice, differed in opinion. The party being the true owner of the horse, bąth no other way to provide for himself, but this. The innkeeper hath his proper remedy against him, who brought and left the horse there for his meat, and for him thus to prejudice the owner of the horse, by the wrong of another, this will be very inconvenient.
CROKE, Justice. If a stranger takes my cattle, and puts them into the ground of another, he may well keep them till I pay him for their meat, and hurt there done. If a man's horse be stolen, and brought unto an inn, or if a man lends his horse to one for a day, and he keeps him three or four days, the innkeeper here was in no fault at all. If the horse was stolen and brought thither, he cannot charge the innkeeper with this, but he which brought him thither, and there left him. Here the innkeeper hath done no wrong at all, the owner is to satisfy him for his meat, because he was here compellable to receive him.
MOUNTAGUE. If a stranger takes the horse of another, and sets him up in an inn, if the horse was there stolen away, the party may have his remedy against the innkeeper.
If a man's servant carries his master's horse to an inn, and there leaves him, and he is stolen away ; an action lieth here for the master, as well as for the servant, against the innkeeper.
DODDERIDGE agreed this to be so, if he knew him to be his servant; the owner is to pay for his meat, and it would be a very mischievous thing if it should be otherwise ; for when a man hath lost his horse, he is to look for him, and when he hath found him in the inn, if he should not be enforced to pay for his meat, this would be a trick, to have his horse kept for nothing, and to have him brought by his servant to the inn. The owner hath a benefit, (S.) meat for his horse, and for the which he ought to pay.
Curia. The pleading here is not good, therefore they did advise the party to plead to issue, and so to go to trial, and so judgment may then be given upon the event, but as the case here is ; CROKE, DODDERIDGE, and MOUNTAGUE, clear of opinion for the defendant against the plaintiff.
Haughton differed from them in opinion for the plaintiff.
defendant's plea, the opinion of the court was against the plaintiff, that