travellers and others were provided with lodging and entertainment, (though there were no stables attached to it,) was considered an inn, and the keeper considered liable to his lodgers (though they were not travellers) in the same way as innkeepers are.-3 B. & A. 285. A room hired by a guest, for a purpose of business distinct from his sonal accommodation, will not impose the liability as to goods upon the landlord.-4 M. & S. 306. The civil law is equally strict on innkeepers.-D. 4, 9, 1,

per

& 3. (6). A carrier for hire is not responsible, except for ordinary neglect, unless he be a common carrier.-2 Ld. Raym. 918. Common carriers are-all persons who carry goods generally for hire,-proprietors of stage waggons,-stagecoaches, that carry goods for hire,-masters and owners of ships, vessels, boats, steamboats, ferrymen and wharfingers. They are responsible in case of accident or theft, and even must make good losses by robbery.-See Nichols' notes on Jones, 103, Kent. Com. 465. There is no distinction between a land and water carrier, and they are all responsible for the acts of their servants and agents. The act of God or of the king's enemies, will excuse a common carrier for the damage or loss of the goods. It is not usual to charge for the baggage under a certain weight, and it would seem by old cases, that the carrier is not responsible beyond ordinary neglect, for baggage so excused from payment; but this is doubted.--See Nichols' notes on Jones 103, a. and it has been held, that a passenger's voluntary care of his baggage, will not excuse the carriers if it be lost--ibid. Although the contents of a box or a parcel are unknown to the carrier, he is responsible for their safety, however valuable.-1 Str. 145, 4 B. & A. 21, 31. The responsibility of common carriers may be limited 1. By special acceptance, that is by receiving the goods to carry on certain stipulated conditions--1 Ventr. 238, 3 Taunt. 271. 2. By publishing general notices, limiting the responsibility they are willing to incur in their calling.

-5 East. 507. It will be a matter of fact for a jury to decide, whether the owner of the goods had notice of the terms published by the carrier.-2 Campb. 415. 1 Stark. N. P. C. 186. 2 ibid. 256, 279, 3 Campb. 28. 2 ibid 108. Nichols' notes. Jones 3d ed. 104. j. k. Where the usage of business is for the carrier to deliver goods as directed, he is bound to do so, but when there is no usage in his own, or the general trade of the place, it is doubtful how far he is bound to do it.-5 T. R. 396. 3 Bro. & Bing. 182. 2. B. & A. 358. 5 B. & A. 58. The leaning of these cases seems to make it a part of his contract, to deliver goods as they are directed as well as to carry them, but, in foreign commerce, the terms of the bill of lading most frequently regulate this point. In New-York it has been decided, that landing goods on a wharf" is not a delivery "to the consignee so as to discharge the carrier, although "there was a usage to deliver goods in that manner. The "carrier must not leave the goods on the wharf, even

66

though there be an inability or refusal of the consignee "to receive them."-2 Kent. Com. 469. The English statutes 7 G. 2, c. 15. 26 G. 3 c. 86, & 53 G. 3 c. 159. (See Jones 107, r. in notis,) exempt owners of ships and vessels from responsibility as common carriers in case of losses by fire, and limit their responsibility for the loss of gold, silver, diamonds, jewels, watches, and precious stones, to cases where the shipper inserts the nature, quality and value of the articles in the bill of lading. The liability of the owners to make good embezzlements, is limited to the value of the ship and freight (except they are personally culpable) and that of part owners to their share of ship and freight. Those statutes will of course extend their protection to all ship owners in the British empire. The United States have not any similar enactment.-2 Kent, Com. 470, and their courts have fully adopted the rules of the English law as to common carriers (ibid. 471) by land, but as to ships, the liability is restricted to ordinary neglect

only. ibid. 472. yet the learned Chancellor himself considers this rule erroneous, and thinks they should be held liable as common carriers are. ibid. 473 n. 6. Postmast

ers are not liable as common carriers, but a deputy postmaster will be personally responsible in damages, to any party injured by his misconduct or neglect of duty. Cowp. 754. 15 East. 384. 2 Kent Com. 474.

66

Additional rules and definitions respecting bailments.

1. The bailor and the bailee have a concurrent right of action for any injury the goods may sustain. Which ever sues first, the other is then precluded from suing, and a judgment obtained by one may be pleaded as a bar to the action of the other.-1 Bulst. 69. 1 B. & A. 59. 1 Wms. Saund. 47, e. n. 1, 2, B. C. 396. There is the same concurrent right of action, to recover the goods or their value if taken away. 2. "Ordinary neglect is the omission of "that care which every man of common prudence, and capable of governing a family, takes of his own concerns." 3. "Gross neglect is the want of that care which every "man of common sense, how inattentive soever, takes of his "own property." 4. "Slight neglect isthe omission of that diligence which very circumspect and thoughtful per"sons use in securing their own goods and chattles."Jones on B. 118. 5. "Negligence is a relative term, depending upon the known value of the article to be "taken care of, and the means of securing it in the power "of the bailee, and these circumstances may vary,-there"fore the degree of care required must depend on the "value of the articles, their liability to be lost or injured, "the notice given to the bailee respecting them, and his "situation."-See 4 B. & A. 21. 5 B. & A. 348. 4 Price 31.

66

CHAPTER III.

WILLS OF PERSONAL PROPERTY.

The rules respecting wills of personal property, are less strict than the regulations as to devises of freehold interests. Thus, while a will of any person under 21 years of age is not valid to pass real estate; a will of personal property is legal, if made by any person above 14 (if a male)—and above 12 years old, if a female, a rule taken from the civil law.-2 B. C. 497. Mental incapacity is equally an objection to a will of personal as of real estate. Conviction for high treason must invalidate a will of any kind, and a person convicted of any other offence amounting to felony cannot, by his will dispose of either land or goods. A married woman may make a will of personal property, by permission of the husband, or by agreement before marriage.-1 Roberts on Wills, 25, Toller on Executors 9. An alien belonging to a friendly state can make a valid will of personal effects.-1 Roberts 42. Toller 12. A will of personal property may be either nuncupative, that is made by word of mouth only, or written.. The provincial statute of wills and distributions, in confor⚫ mity with 19, 20, 21, 23, and 24 sections of the English

statute 29 Car. 2 c. 3.-restricts nuncupative wills as Act 1758, 32 G. 2 c. 11, 1 P. L. 10

follows, viz.

Enacts sec. 3. That no nuncupative will shall be good, where the estate bequeathed exceeds £30. " that is not "proved by the oath of three witnesses (at the least) that "were present at the making thereof, nor unless it be proved that the testator, at the time of pronouncing the same, did bid the persons present, or some of them bear "witness, that such was his will, or to that effect; nor "unless such nuncupative will was made in the time of "the last sickness of the deceased, and in the house of "his or their habitation or dwelling, or where he or she "hath been resident, for the term of ten days or more, "next before the making of such will, except where such person was surprised or taken sick, being from his own "house, and died before he returned to the place of his or "her dwelling." Sec. 4. enacts, that unless the substance of the nuncupative will is put in writing within 6 days after it is made, proof of it shall not be received after 6 months. Sec. 5, Forbids probate to be granted on a nuncupative will, until 14 days at least after the testator's death, and requires before testimony to establish it be received, that "process have first issued to call in the widow, or next of "kindred of the deceased, to the end they may contest "the same" and (following the English act of 4 and 5 Ann. c. 16, sec. 14.) directs that witnesses, who would be received on trials at law, shall be deemed good witnesses to prove nuncupative wills and matters relating thereto. Sec. 6. Enacts that no written will, concerning personal estate, shall be wholly or in part revoked or altered by word of mouth, unless the revocation or alteration be reduced into writing in the life of the testator, read to and approved by him; and requires three witnesses at least, to prove such revocation or alteration. The same section exempts" any soldier, being in actual military service, or any mariner or seamen, being at sea" from these restric