pledgee's wrongful refusal to surrender the pledged goods on demand, after tender of performance, makes him liable for conversion. It has already been pointed out that a tender of payment, though it extinguishes the lien of the pledge, is not a discharge of the debt.40 89 Same-Sale by the Pledgee 42 A valid sale of the pledged goods, in any of the ways pointed out, terminates the pledge." This necessarily follows, since such sale confers title on the purchaser, and the rights of pledgor and pledgee attach to the purchase price of the goods." But, as has been pointed out, if the pledgee himself (in the absence of a stipulation to that effect in the pledge contract) attempts to become the purchaser at the sale of the goods, the pledgor may treat the sale as of no effect and the pledge as still continuing. 44 Same-Consent of the Pledgee The pledgee's special property in the goods, of course, prevents the pledgor from terminating the pledge at his option alone.“ But since the pledge is created for the benefit of the pledgee alone (the debt or engagement secured forming the benefit or advantage to the pledgor), the pledge may at any time be terminated by the consent of the pledgee. This may be done by an express release of his rights by the pledgee, or by a waiver, either express or implied from any conduct inconsistent with the continuance of the lien of the pledge. A release of the debt secured terminates a 46 47 89 Loughborough v. McNevin, 74 Cal. 250, 14 Pac. 369, 15 Pac. 773, 5 Am. St. Rep. 435; Ball v. Stanley, 5 Yerg. (Tenn.) 199, 26 Am. Dec. 263; Hyams V. Bamberger, 10 Utah, 3, 36 Pac. 202. 40 Ante, p. 228; Ball v. Stanley, 5 Yerg. (Tenn.) 199, 26 Am. Dec. 263; Mitchell v. Roberts (C. C.) 17 Fed. 776. 41 Kemp v. Westbrook, 1 Ves. (Eng.) 278; Sharpe v. National Bank of Birmingham, 87 Ala. 644, 7 South. 106; Boynton v. Payrow, 67 Me. 587. 42 Carson v. Iowa City Gaslight Co., 80 Iowa, 638, 45 N. W. 1068; Wheelwright v. St. Louis, N. O. & O. Canal & Transp. Co. (C. C.) 56 Fed. 164; Potter v. Thompson, 10 R. I. 1. 43 Louisville Banking Co. v. W. H. Thomas & Sons Co., 68 S. W. 2, 24 Ky. Law Rep. 115; McDougall v. Hazelton Tripod-Boiler Co., 88 Fed. 217, 31 C. C. A. 487. 44 Ante, p. 233. 45 Ante, § 79; De Wolf v. Pratt, 42 Ill. 198. 46 Hermann v. Central Car Trust Co., 101 Fed. 41, 41 C. C. A. 176; Union & Planters' Bank v. Smith, 107 Tenn. 476, 64 S. W. 756; In re Dyott's Estate, 2 Watts & S. (Pa.) 463. 47 Hickok v. Cowperthwait, 137 App. Div. 94, 122 N. Y. Supp. 78; Valley Nat. Bank v. Jackaway, 80 Iowa, 512, 45 N. W. 881; Whitaker v. Sumner 20 Pick. (Mass.) 399. pledge just as performance or payment would, unless the pledgee expressly reserves his rights to the pledged goods.18 Same-Redelivery of Pledged Chattel to Pledgor Just as delivery (in the sense of a transfer of possession) is necessary to bring a pledge into being, so the continued life of the pledge is absolutely dependent upon continued possession by the pledgee. Redelivery of the pledged goods to the pledgor will therefore terminate the pledge." But when such a redelivery is for a mere temporary purpose, as for shoeing a horse which has been pledged and is owned by the blacksmith, or for repairing a carriage which has been pledged and is owned by the carriage maker, this does not amount to an interruption of the pledgee's possession. The owner is in these cases but a mere special bailee for the creditor, and the pledge is not thereby ended. 50 So, when the debtor is employed in the creditor's service, his temporary use of the pledged article in the creditor's business does not effect a restoration of the possession to the debtor, as the article is then regarded as being still in the creditor's possession. Same-Conversion or Like Wrong of Pledgee As in the case of other bailments, it is usually held that the conversion of the pledged goods or like wrong by the pledgee gives the pledgor the option to terminate the pledge and recover either the pledged goods 51 or damages for the conversion."2 48 Beacon Trust Co. v. Robbins, 173 Mass. 261, 53 N. E. 868. 49 Harper v. Goodsell, L. R. 5 Q. B. (Eng.) 422; Wilkie v. Day, 141 Mass. 68, 6 N. E. 542; McFall v. Buckeye Grangers' Warehouse Ass'n, 122 Cal. 468, 55 Pac. 253, 68 Am. St. Rep. 47; Shaw v. Wilshire, 65 Me. 485; Britton v. Harvey, 47 La. Ann. 259, 16 South. 747; First Nat. Bank of Superior v. Bradshaw, 91 Neb. 210, 135 N. W. 830, 39 L. R. A. (N. S.) 886. 50 In Reeves v. Capper, 5 Bing. N. C. (Eng.) 136, a sea captain pledged his chronometer for a debt. He was afterwards employed by the pledgee as master of one of his ships, and the chronometer was placed in his charge, to be used on the voyage. It was held that the possession of the pledge was not lost. See, also, Matthewson v. Caldwell, 59 Kan. 126, 52 Pac. 104; Cooley v. Minnesota Transfer Ry. Co., 53 Minn. 327, 55 N. W. 141, 39 Am. St. Rep. 609; Casey v. Cavaroc, 96 U. S. 467, 24 L. Ed. 779; Hays v. Riddle, 1 Sandf. (N. Y.) 248; Way v. Davidson, 12 Gray (Mass.) 465, 74 Am. Dec. 604; Macomber v. Parker, 14 Pick. (Mass.) 497; Thayer v. Dwight, 104 Mass. 254; Walker v. Staples, 5 Allen (Mass.) 34, 35; Hutton v. Arnett, 51 Ill. 198; Cooper v. Ray, 47 Ill. 53; Martin v. Reid, 11 C. B. N. S. (Eng.) 730. But see Bodenhammer v. Newsom, 50 N. C. 107, 69 Am. Dec. 775. 51 Johnson v. Succession of Robbins, 20 La. Ann. 569; Merchants' Bank of Canada v. Livingston, 17 Hun (N. Y.) 321, affirmed 79 N. Y. 618. 52 Glidden v. Mechanics' Nat. Bank, 53 Ohio St. 588, 42 N. E. 995, 43 L. R. A. 737; Baltimore Marine Ins. Co. v. Dalrymple, 25 Md. 269. Operation of Law-Destruction of Pledged Chattel This, by operation of law, necessarily terminates the pledge, as there is then nothing to which the relation can attach, even though it be theoretically considered as still existing. The liability of the pledgee for damages in such case would turn on the question of negligence, already discussed." Same-Death or Change of Legal Status 56 The pledge creates in the pledgee not only a special property in the pledged goods, but a right to sell and reimburse himself to the extent of the debt, which is known in agency as a "power coupled with an interest." This is not affected by death of the parties. On the pledgor's death," the power can be exercised by the pledgee against his personal representative; on the pledgee's death, the power is exercisable by his personal representative. In like manner, neither marriage, insanity, nor bankruptcy of the parties will terminate the pledge." The lien and right of sale continue either for or against the representative of the pledgor or pledgee whose legal status is changed, such as his committee in insanity or his trustee in bankruptcy. Same-Redelivery on Termination of the Pledge As in the case of other bailments, the pledgee must, on the termination of the pledge, redeliver to the pledgor the identical goods pledged, together with the profits and the increase thereof. What has been said as to redelivery on redemption, is also applicable here, when the pledge is terminated by any of the methods just discussed. 53 Ante, § 83. 54 Ante, p. 214. 58 55 Drostes' Estate, 9 Wkly. Notes Cas. (Pa.) 224; BELL v. MILLS, 123 Fed. 24, 59 C. C. A. 104, Dobie Cas. Bailments and Carriers, 142; Warrior Coal & Coke Co. v. National Bank of Augusta, Ga. (Ala.) 53 South. 997. 56 Chapman v. Gale, 32 N. H. 141; Henry v. Eddy, 34 Ill. 508. 57 Renshaw v. Creditors, 40 La. Ann. 37, 3 South. 403; Jerome v. McCarter, 94 U. S. 734, 24 L. Ed. 136; Yeatman v. New Orleans Sav. Inst., 95 U. S. 764, 24 L. Ed. 589; Dayton Nat. Bank v. Merchants' Nat. Bank, 37 Ohio St. 208; Dowler v. Cushwa, 27 Md. 354. Where a deposit with a correspondent has, long prior to the commission of an act of insolvency by a national bank, been pledged to secure loans made to the insolvent by its correspondent, neither the subsequent insolvency of the bank nor the appointment of a receiver destroys the lien of the correspondent on the deposit. Bell v. Hanover Nat. Bank (C. C.) 57 Fed. 821. 58 Ante, § 84. CHAPTER VIII INNKEEPERS Rights and Duties of Innkeeper-In General. The Duty to Care for the Comfort and Safety of the Guest. 93. 94. 95. 96. 97. 98. 99. 100. 101. 102. 103. To What Goods the Innkeeper's Liability Extends. The Right of Compensation and Lien-The Compensation of the Inn- The Innkeeper's Lien-Its Nature and Extent. The Waiver of the Lier. The Enforcement of the Lien. The Liability of the Innkeeper as an Ordinary Bailee. 104. The Termination of the Relation. DEFINITION AND DISTINCTIONS 90. The innkeeper is one who holds himself out to the public to furnish either lodging alone, or lodging and some other form of entertainment, to transients for hire. This definition excludes: (a) Persons furnishing only occasional entertainment. Historical 1 The innkeeper is, of course, the keeper of an inn, and the inn, or house for the entertainment of travelers, dates back in all civilized countries to the remotest antiquity. The inn of medieval England is the fountainhead of most of our law on the subject, and these inns sprang up in great numbers, on all the much traveled roads, to furnish shelter and entertainment to the wayfarer, who either 1 The history of inns, the derivation of the word "hotel," and the various terms applied in different times and countries to public houses of entertainment, with references to original sources, are discussed in an interesting manner by Daly, J., in Cromwell v. Stephens, 2 Daly (N. Y.) 15, 17. For a brief, but admirable, historical introduction to the subject of innkeepers, see Beale, Innkeepers, §§ 1-6. DOB.BAILM.-16 could not or did not resort to the monasteries or the hospitality of private individuals. The increase of travel naturally increased the number and importance of the inns; while the establishment of inns, in which the traveler could be protected from the perils of thieves and highwaymen, also reacted upon and stimulated travel. Thus, out of the social and economic relation of the inn to the life of the English, there soon developed a body of legal principles controlling the ever increasingly important relation of the innkeeper to those whom he served or purported to serve. The term "tavern," or alehouse, as it was sometimes called, originally meant a house at which no lodging was furnished, but only food and drink, chiefly the latter. The tavern, therefore, catered primarily to the inhabitants of the neighborhood in which it was situated. The word "hotel," of French origin, has in popular use almost supplanted "inn," and is used and understood all over the world. "Inn" and "innkeeper" still remain the accepted legal terminology generally used by judges and writers. With us, the words "tavern," "inn," and "hotel" are used without any distinction in legal meaning.2 It is clear that the innkeeper was a bailee only as to goods brought within the inn (infra hospitium), and often not then; but convenience and custom justify here a treatment of the general rights and duties of the innkeeper, even when they are in no way connected with the subject of bailments. Definition The definitions of an innkeeper, given by courts and text writers, have been many and varied, some of which are given and criticised in the notes. At the outset, however, it should be noted that the 2 See, on the use of these terms, Black, Law Dictionary, “Inn” and “Hotel.” See, also, Foster v. State, 84 Ala. 451, 4 South. 833; Bonner v. Welborn, 7 Ga. 296; People v. Jones, 54 Barb. (N. Y.) 311; City of St. Louis v. Siegrist, 46 Mo. 593; Lewis v. Hitchcock (D. C.) 10 Fed. 4; Kopper v. Willis, 9 Daly (N. Y.) 460, 462; Wardell, Inns, 15; Civ. Code Ga. 1882, § 2114; Cromwell v. Stephens, 2 Daly (N. Y.) 15, 17; Halsbury, Laws of England, § 633, pp. 302-306. 3 The definition given by Best, J., in the old English case of Thompson v. Lacy, 3 Barn. & Ald. (Eng.) 283, 287, is as follows: "An inn is a house, the owner of which holds out that he will receive all travelers and sojourners who are willing to pay a price adequate to the sort of accommodation provided, and who come in a situation in which they are fit to be received." It is not necessary, of course, that the innkeeper own the inn. He may lease it. The definition of an inn given by Justice Bayley in Jones v. Osborn, 2 Chit. (Eng.) 484, 486, "a house where a traveler is furnished with everything which he has occasion for while on his way," is comprehensive enough to |