that the goods have been lost by theft, the evidence must show that the loss arose from the negligence of the warehouseman." The general rules as to the effect of the receipt in respect to the quantity and condition of the goods, and the like, and the admissibility of parol evidence are the same as in case of carriers, and are elsewhere considered.193 Evidence of the degree of care which other persons engaged in a similar business in the vicinity were in the habit of bestowing on property similarly situated, is competent ;194 but it should ordinarily relate to the calling generally, rather than to a particular person in it.195 To charge warehousemen with a loss by negligence of their servants, it is necessary, it is said, that negligence within the scope of the employment must be shown; and the test is said to be: Would the servant be liable to the employer for neglect of duty ?198 Evidence of the general care with which the warehouse and its contents were guarded has been held not to be sufficient to raise a legal presumption of due diligence in the particular instance, although the defendant need not, ordinarily, show the precise manner in which loss occurred, any further than to show that it was consistent with non-liability.197 Although a warehouseman is not, ordinarily, liable for a loss caused by an accidental fire, without fault on his part, even though he did not store them in a fireproof building, yet if he agrees to so store them in such a building, and the loss is caused by his failure to do so, he is liable.198 The plaintiff may show that by his advertisements, receipts and declarations, the goods were to be stored in a fireproof building. 199 It has also been held that, where goods mildewed, the bailee may show that the bailor approved of the place of storage, and that the goods were damp when delivered by him; but the bailor may show that they were in the ordinary trade condition, and that the bailee knew this and also that they should have been aired and dried.200 § 1797. Evidence in particular classes-Innkeepers.-An innkeeper is one who keeps an inn or house for the lodging and enter 193 03 Vol. 1, §§ 610, 617. 194 Cass v. Boston &c. R. Co., 14 Allen (Mass.) 448; Kelton v. Taylor, 11 Lea (Tenn.) 264, 47 Am. R. 284. 195 First Nat. Bank v. Graham, 79 Pa. St. 106, 21 Am. R. 49. 196 Aldrich v. Boston &c. R. Co., 100 Mass. 31, 1 Am. R. 76. 197 Lichtenhein v. Boston &c. R. Co., 11 Cush. (Mass.) 70. 198 Vincent v. Rather, 31 Tex. 77; see also, Jones v. Hatchett, 14 Ala. 743; Hatchett v. Gibson, 13 Ala. 587. 199 See Abbott Tr. Ev., 693. 200 Brown v. Hitchcock, 28 Vt. 452. tainment of all travelers, that is, the keeper of a common inn for the lodging and entertainment of travelers and passengers, their horses and attendants, for a reasonable compensation.201 It has been held that a sign on a building, indicating that it is a common inn, is evidence of that fact, but a sign is not essential to prove that fact.202 It may be proved by the acts or declarations of the party or by other proper evidence.203 But, admissions made by the servants of innkeepers are not admissible unless made within the scope of their employment.20* The fact that defendant was an innkeeper may be proved by parol, although the law requires him to have a license.205 The plaintiff may prove, in a proper case, the instructions he gave affecting the duty of the defendant or his servant.208 The declarations of the person discovering the loss, made at the time, have been held competent as part of the res gestae,207 but they do not prove any past fact narrated. Loss is generally presumptive,208 but not conclusive evidence of liability.209 At common law this presumption can only be repelled by proof that the loss is attributable to negligence or fraud of the guest, or to the act of God or the public enemy. A general denial of negligence will admit evidence of plaintiff's negligence.210 Reasonable regulations or usages of the particular inn, of which plaintiff had notice, may be proved, but not the usage of another inn,211 and a guest is not bound by a usage of which he was rightfully ignorant.212 "The opinion of witnesses, unacquainted with the facts of the particular case, upon the propriety or safety of carrying or keeping, are inadmissible.”213 20 Black Law Dict.; see for a learned discussion of the derivation, meaning and history of "inns" and "hotels," Cromwell v. Stephens, 2 Daly (N. Y.) 15. He is liable' of such if he holds himself out as such; Pinkerton v. Woodward, 33 Cal. 557; Hale Bailments, 264. See also for comprehensive and modern definition 5 Thompson Neg., title Innkeepers. Howth v. Franklin, 20 Tex. 798, 73 Am. Dec. 218; Dickerson v. Rogers, 4 Humph. (Tenn.) 179, 40 Am. Dec. 642. Howth v. Franklin, 20 Tex. 798, 73 Am. Dec. 218. VOL. 3 ELLIOTT Ev.-15 204 Mateer v. Brown, 1 Cal. 221, 52 Am. Dec. 303. 205 Norcross v. Norcross, 53 Me. 163. 208 Jones v. Hill, 26 Ga. 194. 210 Abbott Tr. Ev. (2d ed.) 691; see also, Albin v. Presby, 8 N. H. 408. 211 Berkshire Woolen Co. v. Proctor, 7 Cush. (Mass.) 417. 212 Berkshire Woolen Co. v. Proctor, 7 Cush. (Mass.) 417. 213 Taylor v. Monnot, 4 Duer (N. Y.) 116; Abbott Tr. Ev. (2d ed.) § 1798. Pledges.-A pledge or pawn is a bailment of personal property to secure the payment of a debt, or the performance of an engagement, with a power (usually implied) of sale upon default.214 The intention of the parties, as shown in the transaction, is usually of great importance, and where it imports nothing more than the giving of a security, without a sale or change of title, it will generally be considered as a pledge rather than a sale or a mortgage.215 So, an apparently absolute bill of sale, may be shown by parol to be a pledge where it was so intended by the parties.216 It has also been held that the presumption where a debtor assigns securities to his creditor is, that the transfer was as security rather than in payment of the debt.217 In an action for conversion, the lien of the pledgee must usually first be paid or tendered,218 and a demand and refusal to return the property must be shown.219 It is a sufficient defense that the pledgor had no title, and that the pledgee had returned the property to its true owner, who was entitled to its possession.220 The measure of damages is usually the value of the property at the time of the loss or conversion,221 but this may depend somewhat on circumstances, and 214 Hale Bailments, 102; Jones Pledges, 1; Bank v. Marshall, 11 Fed. (U. S.) 19. 215 Lucketts v. Townsend, 3 Tex. 119; Wilson v. Brannan, 27 Cal. 258, 271. V. 216 Walker V. Staples, 5 Allen (Mass.) 34; Hazard v. Loring, 10 Cush. (Mass.) 267; Blodgett Blodgett, 48 Vt. 32; Shaw v. Wilshire, 65 Me. 485; Jones v. Rahilly, 16 Minn. 320; Bright v. Wagle, 3 Dana (Ky.) 252; Vol. 1, § 611. 217 Jones v. Johnson, 3 W. & S. (Pa.) 276; Leas v. James, 10 S. & R. (Pa.) 307. 218 Talty v. Freedmen's Sav. &c. Co., 93 U. S. 321; Causey v. Yates, 8 Humph. (Tenn.) 605; Doak v. State Bank, 6 Ired. L. (N. Car.) 309; Jarvis v. Rogers, 15 Mass. 389; Henry v. Eddy, 34 Ill. 508; see also, Cass v. Higenbotam, 100 N. Y. 248; Thompson v. St. Nicholas &c. Bank, 113 N. Y. 325, 21 N. E. 57; but not always, Hallack Lumber &c. Co. v. Gray, 19 Colo. 149, 34 Pac. 1000; 219 Yeatman v. New Orleans Sav. Inst., 95 U. S. 764; Luckey v. Gannon, 37 How. Pr. (N. Y.) 134; Hopper v. Smith, 63 How. Pr. (N. Y.) 34; see also, 1 Elliott Gen. Pr., § 313. 220 Idaho, The, 93 U. S. 575; Hayden v. Davis, 9 Cal. 573; Bates v. Stanton, 1 Duer (N. Y.) 79; Ogle v. Atkinson, 5 Taunt. 759; Sheridan v. New Quay Co., 4 C. B. N. S. 618. 221 Third Nat. Bank v. Boyd, 44 Md. 47; Robinson v. Hurley, 11 Iowa 410; Loomis v. Stave, 72 Ill. 623; Rosenzweig v. Frazer, 82 Ind. 342; Blood v. Erie &c. Co., 164 Pa. St. 95, 30 Atl. 362; Hudson v. Wilkinson, 61 Tex. 606; see also, Fowle v. Ward, 113 Mass. 548; Pinkerton v. Manchester &c. R. Co., 42 N. H. 424; Reynolds v. Witte, 13 S. Car. 5; Falk v. Fletcher, 18 C. B. N. S. 403. there are cases in which the plaintiff has been held entitled to recover its highest value up to the time of redemption and demand or a reasonable time after he became aware of the conversion.222 Proper matters, however, may be pleaded and proved as a set-off, or shown in mitigation.2 223 As a pledge is a bailment of mutual benefit, the pledgee is bound to exercise ordinary care, but not extraordinary care, and is liable to the pledgor for loss or injury proximately caused by the failure to exercise such ordinary care.224 But here, as elsewhere, the parties, so long as their agreement is not contrary to public policy or otherwise illegal, may stipulate for a different degree of care or liability.225 The general rules as to the presumption and burden of proof in actions against a pledgor for loss or injury by negligence, 226 are much the same as in other similar cases. Wilson v. Little, 2 N. Y. 443; Smith v. Savin, 141 N. Y. 315, 36 N. E. 338; Galigher v. Jones, 129 U. S. 200, 9 Sup. Ct. 335; Bank v. Montgomery, 26 Pa. St. 143; Page v. Fowler, 39 Cal. 412. Stearns v. Marsh, 4 Denio (N. Y.) 227; Baker v. Drake, 53 N. Y. 211, 66 N. Y. 518; Belden v. Perkins, 78 Ill. 449; Shaw v. Ferguson, 78 Ind. 547. Hathaway v. Fall River Nat. Bank, 131 Mass. 14; Jarvis v. Rogers, 15 Mass. 389; Story Bailments, §332; Jones Bailments, §§ 23, 75. Drake v. White, 117 Mass. 10; Bank of British Columbia v. Marshall, 11 Fed. (U. S.) 19. Scott v. Crews, 2 S. Car. 522; Winthrop Sav. Bank v. Jackson, 67 Me. 570; Mills v. Gilbreth, 47 Me. 326; Murphy v. Bartsch, 2 Idaho 603, 23 Pac. 82; Stuart v. Bigler, 98 Pa. St. 80; Arent v. Squire, 1 Daly (N. Y.) 347; as to negligence of the pledge in enforcing the security, burden of proof and measure of damages in such cases, see, Aldrich v. Goodell, 75 Ill. 452; Steger v. Bush, S. & M. Ch. (Miss.) 172; Marschuetz v. Wright, 50 Wis. 175; Westphal v. Ludlow, 6 Fed. (U. S.) 348; Vose v. Yulee, 4 Hun (N. Y.) 628; Gilbert v. Marsh, 12 Hun (N. Y.) 519; Hanna v. Holton, 78 Pa. St. 334; Dugan v. Sprague, 2 Ind. 600; Kennedy v. Rosier, 71 Iowa 671, 33 N. W. 226; but see, Phoenix Ins. Co. v. Allen, 11 Mich. 501; Peacock v. Pursell, 14 C. B. N. S. 728. § 1799. Generally.-The evidence that may be introduced in bankruptcy proceedings depends much upon the act itself. Certain rules of evidence have been laid down by the different bankruptcy acts and in many instances they are clear and well defined. For an interpretation of a particular act we must look mainly to the decisions bearing directly upon the act. We have had four United States bankruptcy acts, one in 1800, another in 1843, a third in 1867, and the law now in force in the United States, which went into effect in 1898, and which has since been amended in some important particulars. The decisions cited in this chapter consist almost entirely of those cases decided since this law went into effect; but as former decisions carry weight, in the absence of later decisions, upon points which apparently have not been materially changed they are cited upon such points. Many state statutes in the nature of insolvency or bankruptcy acts have been passed, but they are practically suspended, in most respects at least, during the life of the national bankruptcy act. The state laws are generally called insolvency laws, while the federal |