Scottish Court of Session Decisions

Henry Rothfield, financial agent, 201 Buchanan Street, Glasgow, pursuer, brought an action against the North British Railway Company, 23 Waterloo Place, Edinburgh, defenders, in which in the first place he sought to have it found and declared “that when the pursuer in the course of travelling finds it necessary to stay in Edinburgh he is entitled as a bona fide traveller to be received, entertained, and lodged by the defenders and their servants as a guest in their Station Hotel in Edinburgh, and that at bed and board, on the same terms and conditions as other travellers are received, entertained, and lodged by the defenders and their servants at said hotel, provided the defenders have sufficient room and accommodation in said hotel for bona fide travellers so to receive, entertain, and lodge the pursuer at such times as he as a bona fide traveller applies to the defenders and their servants and requires to be received, entertained, and lodged as aforesaid,” and in the second place, whether or not declarator should be granted in terms of the preceding conclusion, he sued for £105 damages.

The pursuer pleaded, inter alia—“1. The pursuer, having right as a traveller to be received and lodged in defenders' said hotel provided accommodation therein be available, and the defenders having repudiated his right, is entitled to decree in terms of the declaratory conclusions of the summons. 2. The pursuer having suffered loss and damage through the illegal and unwarrantable actions of the defenders, or of those for whom they are responsible, is entitled to reparation therefor as concluded for.”

The defenders pleaded, inter alia—“2. The pursuer not having the rights claimed and the defenders' actions having been legal, the defenders are entitled to absolvitor. 3. The pursuer being, in the opinion of the defenders, unsuitable as a guest in their hotel, they are entitled to exclude him, and

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to absolvitor. 4. The pursuer being unsuitable and objectionable as a guest in the defenders' hotel, they are entitled to exclude him, and to absolvitor. 5. The defenders' hotel not being an ordinary inn, and the pursuer not being an ordinary traveller, the pursuer has no such rights as are claimed, and the defenders are entitled to absolvitor.”

The facts and import of evidence will be found infra in the opinions of the Lord Ordinary ( Anderson).

On 8th November 1918 the Lord Ordinary found and declared in terms of the declaratory conclusion of the summons, and found the pursuer entitled to damages, which he assessed at the sum of one guinea.

Opinion.—“This is an important and interesting case. The pursuer is a moneylender whose residence is at 57 Fern Avenue, Newcastle-upon-Tyne. He carries on his money-lending business in London, Newcastle, Edinburgh, and Glasgow, his registered address being at 201 Buchanan Street, Glasgow. For the purpose of conducting this business the pursuer has frequently to travel. In doing so he uses the defenders' railway system, and holds a first class contract railway ticket which entitles him to travel on the defenders' trains between London, Edinburgh, and Glasgow.

The defenders are the proprietors of the North British Station Hotel, Princes Street, Edinburgh, and the business of the hotel is conducted under their management and control. For the past four or five years the pursuer has been in the habit of residing in the defenders' hotel for two or three or more nights weekly. Prior to January last the pursuer usually kept on his bedroom in the hotel until his return on his next visit, and he paid his accounts monthly. On 17th January last the hotel manager, being aware that pursuer was leaving the hotel next day, informed him by a letter of that date that he must give up his room, and requested him to discontinue coming to the hotel. This sudden and complete change of relations between the parties compels me to surmise that there is more in this case than meets the eye in the pleadings. The changed attitude on the part of the hotel officials can only be accounted for, it seems to me, by their having suspicions of objectionable conduct on the part of the pursuer in his use of the hotel. Nothing, however, to this effect has been averred by the defenders, perchance because they are satisfied that such averments could not be proved, and I must decide the case on the pleadings which have been formulated.

After the pursuer had received the hotel manager's letter of 17th January he placed the matter in the hands of his solicitors, and the course of subsequent negotiations may be traced in the letters which were referred to at the debate. The letter of pursuer's solicitors of 2nd April makes it plain that the pursuer was not maintaining a right to have a bedroom permanently reserved for his use as in the past, but merely that he should receive accommodation in the hotel when he required it on arriving in Edinburgh as a traveller. The attitude of the hotel management as to this claim made on behalf of the pursuer was brought to a test on 8th April, when the pursuer purposing to be in Edinburgh as a traveller telegraphed to the hotel manager, ‘Arriving Wednesday. Will you provide accommodation?’ I construe this as a request for the accommodation needed by a traveller. This is all that had been demanded by the letter of the pursuer's solicitors of 2nd April, and I have no doubt that the hotel manager understood that the telegram made no wider request. The reply, telegraphed on the same day, was, ‘Your telegram. Must decline.’ The defenders frankly state in their pleadings that their attitude to the pursuer is this—that they ‘desire that he shall not come to the hotel, and to refuse him as a guest if he should come.’

In these circumstances the pursuer has raised the present action with the object of vindicating what he maintains are his legal rights to the use of the defenders' hotel. His summons has two conclusions—(1) a declaratory conclusion to the effect that when he is in Edinburgh as a traveller he is entitled to use the hotel as a guest if there is accommodation available, and on condition of paying the usual tariff charges; and (2) a petitory conclusion craving payment of damages from the defenders in respect of their refusal to receive him in said hotel as a guest on 8th April 1918.

The legal contention of the pursuer, in support of the declaratory conclusion of the summons as formulated in his first plea-in-law, is that a traveller is as matter of right entitled to demand and receive entertainment as a guest in an hotel if there is accommodation available. It is implied in this plea, although the averment is not specifically made, that the North British Station Hotel is a common inn.

The defences to the action, apart from criticisms of the language of the declaratory conclusion and of the relevancy of the pursuer's pleadings, are these—(1) That the defenders are entitled to exclude the pursuer from the hotel without cause existing or assigned (plea 3); (2) that cause does exist which justifies this exclusion of the pursuer (plea 4); and (3) that the said hotel is not a common inn (plea 5).

I propose in the first place to consider what is the legal status or character of an hotel, and what are the obligations owed to the public by its proprietors.

It is plain that the Licensing Act of 1903 referred to on record has no bearing on this question. The object of the Licensing Act was to regulate the sale of intoxicating liquor in certain authorised premises to members of the public resorting there for the purpose of consuming or procuring liquor. Under the provisions of the Act of 1903 the North British Railway Hotel is just a public-house in so far as intoxicating drink is sold within its precincts. As in the case of other public houses the hotel officials are entitled, without cause existing or assigned, to refuse to supply drink within the hotel to a member of the public, not enjoying the privileges of a traveller, who demands to be supplied. But the law appealed to by the pursuer as the basis of

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his legal demand was settled long before the first licensing statute was enacted. That law is not dependent upon or affected by the fact that the hotel is licensed to sell drink. It applies to all establishments of the nature of an hostelry, whether licensed or not, such as temperance hotels, coffeehouses, and hydropathics.

There is more authority on the subject in the law of England than in Scotland, but in my opinion the law is to the same effect in both countries. In England it is authoritatively settled that the keeper of a common inn or hotel who holds himself out for the lodging and entertainment of travellers for reasonable remuneration is bound to entertain travellers and wayfarers if he has accommodation— Lane v. Cotton, 1691, 12 Mod. Rep. 484; Calye's Case, 8 Co. Rep. 32; Thompson v. Lacy, 3 B. & A. 283; Howell, 6 C. & P. 725; Rex v. Ivens, 7 C. & P. 213; Hawthorn, 1 C. & K. 404; Reg v. Sprague, 63 J.P. 233; Reg v Smith, 65 J.P. 521; Montgomery's Licensing Practice, 497, 502, 508. In the case of Lane Mr Justice Holt finds the legal principle upon which this general obligation of an inn-keeper is based in thecommon law doctrine of ‘public trust.’ He considers that an inn-keeper is fixed with the discharge of a public duty in the conduct of his inn to members of the travelling public. He assimilates the legal position of an inn-keeper to that of a common carrier who is bound to carry the goods, provided they are of the description he professes to carry, of any person offering to pay his hire.

In the case of Thompson v. Lacy Mr Justice Best at p. 287 said—‘An inn is a house the owner of which holds out that he will receive all travellers 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.’ In the case of Ivens Mr Justice Coleridge referred to inn-keepers as ‘public servants’ and laid it down that an inn-keeper is not entitled to select his guests. In more recent English cases the law is declared to the same effect. Thus in Medawar, 1891, 2 Q.B. 11, I find that Lord Esher, M.R., said this—‘An hotel-keeper, by opening his house as an hotel, offers it to the use of the public as such, and thereupon the common law of England imposes on him certain duties and gives him certain rights. He has no right to refuse to take into his house any one of the public who offers himself as a guest if he has room for him in his house; and in return for this obligation which it imposes on him the common law gives him a lien for his charges upon the goods of the guest which are in the house.’ In the same case Bowen, L.J., at p. 25, said—‘We start with this, that a man who comes to an hotel, if there is an unoccupied room, has a right to use that room.’ Again, in the case of Browne 1902, 1 K.B. 696, Lord Alverstone, C.J., said at p. 698—‘The true view is, in my opinion, that an inn-keeper may not pick and choose his guests; he must give the accommodation he has to persons who come to the inn as travellers for rest and refreshment.’

The law of England regarded this obligation upon inn-keepers to provide accommodation for travellers as so well settled and imperative in character that breach of it could competently be dealt with by way of indictment against the offending innkeeper— Rex v. Luellin, 12 Mod. Rep. 445; Bullen and Leake's Precedents and Pleadings, 339.

In Scotland there is not, as there is in England, express decision that an innkeeper is bound to entertain every traveller who demands rest and refreshment, but there is the highest authority in the shape of obiter dicta of Lord President Inglis to the effect that this is the law of Scotland. The case of Ewing 5 R. 230, decided that under a prohibition in a feu-charter against building on the lands feued anything except dwelling-houses, and also against the vassal allowing to be kept upon the feu ‘any public-house or tavern,’ the vassal was not entitled to erect an inn or hotel containing sleeping apartments for the accommodation of travellers; or a hydropathic establishment, even though the latter was not licensed for the sale of exciseable liquors. In that case the Lord President said, at p. 233—‘But it is said, further, that the hydropathic establishment proposed to be erected is not to have a licence. A hotel, however, does not cease to be a hotel because it has no licence. A temperance hotel-keeper is under the same law as any other hotel-keeper. The edict Nautce caupones applies to both equally. A temperance hotel-keeper is just as much bound to receive every traveller who presents himself, provided he have a room in his hotel and there is no good personal objection to the particular traveller. He is the servant of the public and bound to receive every decently behaved member of the public unless his house is full, and if he does not he is liable to an action of damages. This applies just as much to the keeper of a hydropathic establishment.’ The origin in Scotland of the general obligation of an innkeeper to travellers is doubtless to be found, as in England, in the common law principle of ‘public trust’ or ‘public duty.’ It is also, I think, traceable to certain enactments of the old Parliaments of Scotland. These statutes were passed primarily with the object of protecting private individuals from the exactions of bands of ‘ridaris and gangaris throu the cuntre.’ Thus the Act 1424, cap. 25, ‘ordainyt that in all burowis townys of the realme and thruthfaris quhar common passagis are, that thar be ordanyt hostilaris and resetteris, haifande stabillis and chawmeris to ridaris and gangaris, and at men fynde with thame brede and aile, and all uthir fuyde, alsueille to horse as men, for resonable price eftir as the chapis of the cuntre standis.’ This was followed by the Act 1425, cap. 11, which provided that no traveller on horse or on foot should lodge in any other place than hostelries, excepting those who travelled with a large retinue, who were allowed to lodge with their friends if they sent their horses and followers to the hostelry. Burgesses were forbidden under penalty of a fine

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to receive such travellers. By the Act 1427, cap. 3, the King ordained all his burgesses in the realm ‘quod faciant fieri hostellaria seu hospicia publica in burgis honesta et competencia more aliorum regnorum ad recipiendos omnes et singulos hospites tam pedestres quam equestres per regnum laborantes sub pena.’ By the Act 1535, cap. 23, the former Acts were approved, and further provision was made for securing that proper accommodation should be made for travellers, to be sold ‘apoun ane competent price and as siclike stuff is saulde commonlie in the cuntre abouut quhare sik ostillaris duellis.’

It is plain that although these statutes do not expressly confer on travellers a right to demand the accommodation which innkeepers are taken bound to supply, the existence of this right is necessarily implied in the statutory enactments.

If, then, this general obligation upon inn-keepers to accommodate all travellers is a well-settled doctrine of the law of Scotland, an examination of certain other authorities which establish that the obligation is not universal and absolute will enable me to formulate in the shape of a series of propositions, and to do so with some approach to exactitude, the law which regulates the duties of inn-keepers to the travelling public. The classical statement, in the law of Scotland on this point is the opinion of Lord President Inglis in the case of The Strathearn Hydropathic Company, Limited 8 R. 798, at p. 800. ‘It is said that the officials—by which, of course, are meant the persons who under the company are carrying on this business—have power to refuse admission and to send away such as they judge unsuitable—and that those “suffering from infectious diseases or intoxication cannot be received or allowed to remain in the establishment.” It does not appear to me that that, properly construed, would enable the keepers of this establishment to refuse guests capriciously or maliciously; and every hotel-keeper must have a certain power of selecting his guests, or perhaps, to speak more precisely, of rejecting certain guests. He is bound to attend to the decency and order of his establishment. That is one of his obligations, and that would be inconsistent with admitting certain classes of guests. He is bound also to attend to the health of his guests and salubrity of his house, and that would lead to his rejecting certain guests. He is bound also, I think, to exercise a discretion as to the class of people whom he will admit to his hotel. A man who is carrying on business as a hotel-keeper in a first-class establishment is not bound to admit to his hotel persons in every rank and condition of life. Sometimes persons in the condition of working men become for the time very rich and extravagant. We have heard tales of navvies drinking up all the champagne and eating all the spring chickens of a whole neighbourhood; and if any of that class of people presented them-to a hotel-keeper of the character we are supposing, I cannot doubt that he would have a discretion to reject them because their manners and habits are not suitable to the class of people whom he receives.’

The law then on this matter, as it has been authoritatively settled, may in my opinion be stated in these propositions—(1) There is a general obligation on all innkeepers to receive as guests all members of the travelling public. (2) It matters not how the traveller arrives at the hotel, whether by road or rail, and in cases like the present, whether he has travelled to Edinburgh by the defenders' system or that of the Caledonian Railway Company. (3) The inn-keeper is bound to take in not only the traveller but his luggage; and luggage is not confined to personal luggage, but extends to whatever the traveller may bring with him provided it is not exceptional or dangerous, such as a tiger or a package of dynamite, illustrations suggested by the Master of the Rolls in Robins & Company, [1895] 2 QB 501, or a piano ( Broadwood, 10 Ex. 417). (4) The obligation of the inn-keeper extends to the provision of sleeping accommodation and food and drink, a traveller being entitled to demand and receive alcoholic liquor as part of his refreshment during his stay in the hotel ( Oliver 23 R. (J.C.) 34).

On the other hand an inn-keeper is not bound to receive a traveller—( a) If on request he gives no security to pay his bill ( Fell, 8 M. & W. 276). ( b) If the traveller is accompanied by an animal, such as a dog, tending to cause alarm to other guests ( Rymer, (1877) 2 Q.B.D. 236). ( c) If the person claiming accommodation is not a traveller in itinere ( Lamond, [1897] 1 QB 541; Rymer, supra). The right of a traveller to receive accommodation in an inn is determined when he ceases to be in itinere. No one can successfully claim to make his home in an inn, and an inn-keeper is not bound to provide residence to anyone. ( d) An inn-keeper is not bound to receive a traveller into his inn if there is no available accommodation ( Browne, supra). ( e) An inn-keeper may refuse accommodation to a traveller who refuses to pay the ordinary tariff charges of the inn (per Mr Justice Best in Thompson, supra). ( f) An innkeeper is not bound to receive in his inn an undesirable character. This means anyone whose presence in the inn would, for physical reasons, be disagreeable ( Pidgeon, 21 J.P. 743) or dangerous, as in the case of a leper, to the other guests, or whose moral character would be objectionable to the other residents and prejudicial to the innkeeper's business.

If the views I have expressed up to this point are sound they enable me to reject the defenders' contention that they have a discretion, without cause existing or assigned, to exclude the pursuer from their hotel. But the defenders maintained that this law of inn-keepers and common inns which I have been endeavouring to expound does not apply to the North British Railway Hotel, in respect that it is not a common inn.

If the defenders' hotel had been situated within the boundaries of the Waverley Station this might have been a material

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circumstance in a question with the general public, although it would not have affected the pursuer, who travelled by the defenders' trains and arrived at the station which the hotel adjoins. But the hotel is outwith the station boundaries, and it does not, in my opinion, differentiate it from other hotels that it has been erected by means of funds belonging to railway shareholders and that it is conducted by railway directors. The hotel is an ordinary trade venture, aiming at the acquisition of gain, and appealing to and desiring the patronage of the general public. The doors of the hotel open on Princes Street and the North Bridge, and the general public are thereby invited to patronise the hotel.

It was contended that the rules of law which impose obligations with reference to travellers upon common inn-keepers do not apply to modern times and present day hotels. I am unable to assent to this argument. Nowadays journeys are not made on horseback or in stage coaches but by train or car. But people still travel, and travellers still require shelter and rest and refreshment. In the case of Rymer, supra, Mr Justice Denman said that the ‘principles laid down in Burgess v. Clements ( 4 M. & S. 306) show that the object of the law upon the subject of an inn-keeper's liability is merely to secure that travellers shall not while upon their journeys be deprived of necessary food and lodging.’ This object under modern conditions of life and travel still requires to be fulfilled, and in my opinion the defenders are bound when called upon to provide the means of fulfilment.

The only countenance which this contention of the defenders receives, that modern hotels are not common inns, consists in a statement made by Lord Esher in the case of Lamond, supra where he said—‘I think it is open to argument that the large London hotels do not hold themselves out as receiving customers according to the custom in England—at any rate such a matter would be a question of fact.’ If this means that hotels such as the Ritz, Savoy, or Gordon Hotels in Northumberland Avenueare not bound to entertain travellers when requested to do so, I find myself unable to subscribe to the opinion of Lord Esher, and whatever be the case as to hotels in London such as those I have mentioned, I have no difficulty in holding that the defenders impliedly invite travellers, and in particular those arriving at the Waverley Station, to demand accommodation at their hotel.

This argument of the defenders, moreover, is negatived by the later decisions I have referred to, both English and Scottish, which are applicable to modern times, and in which there is to be found no hint that certain classes of hotels are not subject to the general obligation affecting common inns.

I have no doubt that an hotel-keeper might limit his obligations under the rule of law to which I have referred. An hotel, for example, might offer to cater solely for ladies, or for officers in the services. In such cases the hotel-keeper would be entitled to exclude, in the one case males, and in the other civilians and members of the services who did not hold the King's commission. But in the case of the defenders' hotel it is not suggested that there has been any express limitation of invitation, and I hold that no such limitation can be implied. All travellers against whom proper objection cannot be taken and who are willing to pay the defenders' tariff charges are as matter of legal right entitled to demand and receive accommodation in the hotel so long as they are in itinere.

It was suggested that as the pursuer might have obtained accommodation at another hotel in Edinburgh he was not entitled to insist on obtaining it at the defenders' hotel. I do not agree. A traveller is, in my opinion, entitled to choose the hotel at which he desires to be a guest, and the defenders are not entitled to put a traveller desiring to use their hotel to the trouble and expense of finding another hotel.

I therefore reach the conclusion that the defenders' hotel is a common inn, and as such is affected by the rules of law I have alluded to, which impose on the keepers of common inns the duty of providing accommodation for travellers.

If the defenders have no discretion to exclude the pursuer from their hotel his exclusion by them can only be justified if they had sufficient cause for doing so. Have the defenders averred a justifying cause of exclusion? They allege that the pursuer is a German Jew and a money-lender. The pursuer admits that he is a Jew and a money-lender, but denies that he is of German origin. He was born in Great Britain in 1884, and has resided and carried on business in this country ever since. He conducts a business which is a lawful occupation. Nothing else is alleged against the pursuer on record, and it is manifest that what is averred against him did not justify the defenders in excluding him from their hotel. It is doubtful if a single one of the thousands of guests who come and go to and from the defenders' hotel had any knowledge of the ancestry or religion or business pursuits of the pursuer. The defenders were specifically called upon to furnish the names of any guests who objected to the pursuer on any of these grounds, or on any ground, and they have not adduced a single name. The pursuer is a man of presentable appearance, and I must assume in the absence of allegation to the contrary that he behaved as a gentleman when he resided in the defenders' hotel. I must also assume that if he had been allowed to go back to the hotel his behaviour there would have continued to be irreproachable. I therefore am of opinion that the defenders have failed to aver a justifiable cause for the exclusion of the pursuer from their hotel.

I now proceed to consider certain criticisms which were made by the defenders' counsel as to (1) the terms of the declarator sought; and (2) the relevancy of the pursuer's averments on which his declaratory conclusion is based. These criticisms were

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urged with great earnestness and insistence by both of the defenders' counsel, and therefore, as I have reached the conclusion with-out much difficulty that there is no substance in any of them, I have an uneasy impression that I may have failed to appreciate the defenders' contentions on this part of the case. I shall, however, deal seriatim with the points taken as I understood them, and state why I hold them to be untenable.

I As to the form of the declaratory conclusion:—(1) It was maintained that this conclusion was fundamentally bad as it referred solely to the future. Its basis, however, is the defenders' refusal of 8th April to receive the pursuer into the hotel. The Lord Advocate conceded that (on the assumption that the hotel was a common inn) the pursuer might, on proper averments, have brought a declarator to the effect that he had been wronged by this refusal. It follows that a similar declarator would be open to him on every other occasion on which admittance to the hotel was refused. Now it seems to me that the present declarator will have the effect, by its general declaration as to the future, of being equivalent to and of superseding an indefinite succession of declarators ex post facto. A declarator in general is regulative of the future, and I see no reason for holding that on this ground the declarator sought is incompetent. (2) It was urged that the declarator sought was bad because it refers to an hypothetical series of events in the future. The Court, it was said, cannot ab ante make a declarator as to a set of circumstances without knowing exactly what those circumstances are. I am unable to accept this view. What the declarator in effect sets forth is that in a given set of circumstances certain consequences in law will follow. The given circumstances are ( a) that the pursuer claims entertainment as a traveller; ( b) that he claims to be entertained only so long as he is a traveller; ( c) that he pays the recognised tariff charges; and ( d) that the hotel retains in the future its present character of a common inn. The declarator will only apply if the supposed circumstances occur, and if they should happen I see nothing incompetent in declaring ab ante what the legal rights and obligations of the parties will be in'the events contemplated. (3) It was argued that the declarator sought could not be granted because it laid on the defenders the burden, said to be intolerable, of determining ( a) whether on any given occasion the pursuer was a traveller; and ( b) when he ceased to have that character and might therefore be asked to leave the hotel. But that is just the burden which the defenders have to endure under present circumstances, and the declarator sought will lay no additional responsibility upon them. (4) It was contended that what the pursuer was really asking by his declarator, and what he would get if it were granted, was a right to reside in the hotel. I do not so interpret the terms of the summons and 1 do not think that they necessarily or naturally have that signification. The only support this contention receives from the terms of the summons is the use of the word ‘stay,’ but this term is explained by the context, which clearly shows that the pursuer only claims right to ‘stay’ in the hotel while he possesses the qualifications of a traveller. (5) Finally it was urged that the declarator was bad because it assumes that the pursuer will always be a traveller and the hotel a common inn. But it is just in those two assumptions that the pursuer finds the legal justification for the decree which he craves. If he demands admission to the hotel when he is not a traveller, or if the hotel has ceased to be a common inn when the pursuer's demand is made, the declaratory decree will be inapplicable.

I therefore am of opinion that none of the criticisms pointed at the form of the declarator is well founded.

II. As to the arguments directed to the relevancy of the pursuer's pleadings, these were two in number:—(1) It was complained that the pursuer had not defined ‘traveller.’ In my opinion it was unnecessary to do so. That word, in this department of the law, is a term of art. I must take it that the term is used by the pursuer in the signification which attaches to it in the decided cases. It was suggested that the proper term to employ was ‘wayfarer.’ But ‘traveller’ is used in the cases as often as ‘wayfarer,’ and has exactly the same meaning. This objection is therefore bad. (2) It was objected that the pursuer had not averred that the defenders' hotel is a common inn. In my opinion it was unnecessary to do so, as that is implied in the averment that the defenders' establishment is an hotel. As I understand the law, every hotel whose business is not expressly or by clear implication limited in extent is a common inn, because by keeping open door it impliedly invites the public generally to use it as an inn. This objection to the relevancy is accordingly also untenable.

As to the procedure which has been followed, I propose to dispose of the action without taking a proof. I was asked to do this by the pursuer's counsel, who maintained that the defences were irrelevant. The defenders' counsel moved for a proof, but in my judgment the averments of the defenders are not relevant to be remitted to probation. The essential facts on which a judgment falls to be based are admitted. The only disputed matter of fact which has an appearance of being material is the allegation of the defenders, denied by the pursuer, that he has a residence in this city. But, assuming that the defenders are right on this point, it would not affect the pursuer's right to get the declarator which he seeks. The defenders do not justify their refusal of admission of 8th April on the ground that the pursuer had a residence in Edinburgh to which he could have resorted. If he has such a residence he may at any time give it up, or on any particular occasion it may be locked up. He would then be entitled to demand and receive from the defenders accommodation as a traveller. I therefore consider it unnecessary to have this disputed question as to 18 Polwarth ‘Gardens determined by inquiry.

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On the whole matter, so far as the declaratory conclusion is concerned, I propose to repel the defences and grant decree in the terms concluded for.

As to the conclusion of the summons directed to damages, I find myself in a position to dispose of it also at this stage. The pursuer has made no averment of special damage which requires to be remitted to probation. His claim is based on solatium for inconvenience and annoyance. The pursuer's counsel assumed that the principle of solatium, familiar in cases of slander, abuse of civil or criminal process, of damages in respect of personal injury or the death of a near relative, for assault, seduction, or breach of promise of marriage, is equally applicable to a case of this sort. I am of opinion that in the present case no claim of damages based solely on solatium is open to the pursuer. But the pursuer has been subjected to a legal wrong, and a legal wrong always carries with it a right to some damages— “The Mediana” [1900] AC 113. In the absence of averments supporting a claim to real or special damages, the damages awarded in such a case will be merely nominal damages. In the case I have just referred to the Lord Chancellor (Halsbury), at p. 116, observed as to ‘nominal damages’ that this ‘is a technical phrase which means that you have negatived anything like real damage, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed. But the term “nominal damages” does not mean small damages.’ The Lord Chancellor plainly means that that phrase does not necessarily import small damages. Here it does, because no real damage has been sustained. I assume, because nothing to the contrary has been averred, that the pursuer when he got the telegram of 8th April either did not come to Edinburgh, or if he did he went to another hotel without going near that of the defenders. He cannot therefore recover anything from the defenders in name of damages beyond a sum which is de facto as well as verbally ‘nominal.’ I assess the damages due at the sum of £1, 1s.”

The defenders reclaimed, and on 25th February 1919 the First Division ( Lord President (Strathclyde), Lords Mackenzie, Cullen, and Blackburn), without delivering opinions, recalled the Lord Ordinary's interlocutor, before answer allowed the parties a proof of their respective averments and to the pursuer a conjunct probation, and remitted to the Lord Ordinary to proceed.

On 27th June 1919 the Lord Ordinary, after proof, of new found and declared in terms of the declaratory conclusion of the summons, and found the pursuer entitled to damages, which he assessed at the sum of one guinea.

Opinion“refer to my former opinion for a statement of the law which, in my opinion, falls to be applied to the facts of this case. I see no reason, in the light of the evidence which has been led, for altering or modifying any of the legal propositions or conclusions which I formerly enunciated.

The proof and the arguments which were advanced at the hearing on evidence were directed to three points—(1) Whether it had been made out that the defenders' hotel is a common inn. (2) Whether the pursuer had requested accommodation when a traveller in itinere, and whether this had been refused by the defenders; and (3) Whether the defenders were justified in refusing the pursuer accommodation as a traveller in their hotel. 1. Is the defenders' hotel a common inn? As was pointed out in the case of Lamond [1897] 1 QB 541, the question whether or not an hotel is a common inn is one of fact—the test being, as laid down by Esher, M.R., at p. 545—whether ‘the proprietors of the hotel held it out to the public as an inn that would take in any traveller who came, provided there was room to do so.’ Now, as regards the defenders' hotel, what has been proved is that by signboards, by advertisement and guide books, by the presence of a porter at railway trains, and by the implied invitation of the open door, members of the public, without exception, and especially travellers arriving at the Waverley Station are invited to the hotel. No limitation or restriction has been proved by the defenders as to those whom they invite. Their invitation is to the public generally, and this necessarily includes the travelling public. The evidence, moreover, as to what takes place at the Waverley Station on the arrival of trains shows that travellers by the North British route are specially invited to the hotel. The view I take of the matter is this, that where, in the case of any hotel, a general invitation to the public is proved or falls to be presumed, the onus probandi in a question of this sort is transferred to the hotelkeeper to establish that he is not affected by the common law obligation to provide refreshment and accommodation for travellers in itinere.

If the question is considered historically it will appear that the primary function of an inn is to provide accommodation for travellers in itinere. Those functions which at the present time seem to predominate, to wit, to accommodate boarders or lodgers, and to provide refreshment and entertainment for those who are merely or mainly in pursuit of pleasure, are of comparatively recent development. Any historical treatment in the course of a judicial opinion must be of the most cursory character, but what follows seems to me to establish that inns were originally established for the entertainment of travellers and that this object has all along constituted and still constitutes their primary function.

The inn is one of the most ancient institutions known to history. In Biblical and pre-Biblical times khans and caravanserais were erected on frequented routes for the accommodation of travellers. There were inns and innkeepers among the Greeks, but both were held in low repute by that fastidious race. In the Roman Empire something akin to the modern inn was established.

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The brethren from Rome met Paul at ‘The Three Taverns’ (Acts 28, v. 15). In Horace's interesting account of his journey from Rome to Brundisium he refers to the inns he slept at in the course of that journey—Sat. i, 5.

In the Middle Ages the traveller could look for necessary accommodation in three directions—(1) to the hospitality of those whose dwellings he passed in the course of his journey. It will be remembered that in ‘Ivanhoe’ the Templar, the Prior, the Jew, and the Palmer all obtained accommodation for the night from Cedric the Saxon. (2) To the monasteries. Quentin Durward and his charges and treacherous guide were entertained in a Franciscan monastery in the course of the journey from Plessis-les-Tours to Liege. (3) To the common inns of the country. These were busily employed in times when the custom prevailed of making pilgrimages to holy places. The most celebrated of all pilgrimages was that described by Chaucer, where the pilgrims started from the Tabard Inn at Southwark, personally conducted by Harry Baily, the host, and put up at the ‘Checquers of the Hope’ in Mercery Lane, Canterbury.

In the 15th and 16th centuries a secondary function becomes noticeable in connection with inns. They begin to be frequented for the purposes of toping and conviviality.’ Falstafi, the Prince, Poins, Doll Tearsheet, and the rest met for these purposes at ‘he Boar's Head,’ Eastcheap. In Elizabeth's reign ‘The Mermaid’ in Bread Street, London, was a favourite haunt of Shakespeare, Johnson, Beaumont, and other poets.

But all along, both in this country and on the Continent, the leading function of the inn was to provide rest and refreshment for travellers on their journeys.

The writings of Le Sage and Cervantes as to Spanish inns, of Boccaccio as to Italian, and of Dumas as to French inns make this quite clear.

With the establishment of stage coaches in later times, and increase in the numbers of the travelling public, the discharge of his primary function in accommodating travellers became more manifestly the main business of the inn-keeper. The writings of Fielding and Smollett show how this was done both in England and Scotland. Dickens, too, again and again refers to the wayside inn and makes it clear what was its chief function. It will be remembered that Mr Pickwick and his friends were travellers in itinere from Birmingham to London when they put up for the night at ‘The Saracen's Head,’ Towcester, and witnessed the historic combat between the rival journalists of Eatanswill. Long before this a subsidiary function had been established in connection with those inns which were situated in populous places. They were used as meeting places by local residenters who were socially inclined. In ‘Barnaby Rudge’ the parish clerk and his cronies met in the evenings at ‘The Maypole’ to drink their ale and smoke churchwarden pipes. It was this feature of inn life which attracted Dr: Johnson to ‘The Mitre’ and Robert Burns to ‘Poosie Nancie's’ and other taverns.

In my former opinion I pointed out that the Scots Act, 1425, cap. 11, authorised travellers with a large retinue to lodge with their friends if they sent their horses and followers to the adjacent hostelry, I have no doubt that Sir Walter Scott had this statute in mind when in ‘Waverley he made the guests of Brad wardine leave their horses at Luckie Macleary's change house in the village. Again, in ‘Rob Roy,’ when the convivial party of Highlanders attempted to exclude Bailie Nicol Jarvie and his friends from the inn at the Clachan of Aberfoyle, Frank Osbaldistone's position was absolutely sound in law when he said, ‘I am yet to learn how three persons should be entitled to exclude all other travellers from the only place of shelter and refreshment for miles around.’

The advent of railways and motor cars did not affect the primary function of an inn. Indeed, inasmuch as these means of locomotion greatly increased the numbers of travellers, the performance of this primary function was thereby rendered more essential. I endeavoured to show in my former opinion that at an early date the law laid it upon the innkeeper to perform this primary function as a matter of obligation. In some of the cases the underlying principle of the decisions which established this rule of law is said to be ‘public trust’ or ‘public duty.’ I have no doubt, however, that the considerations on which the decisions are based are just these—travellers ought not to be compelled to sleep on the highways or in the fields. Private hospitality might fail them. There might be no private house available or the occupier might be churlish. The monastery might be fully occupied. There remained the inn—the public house—which had originated in a purpose of entertaining travellers. This was obviously the institution in which a traveller should have the right of demanding necessary accommodation.

I am not called upon in this action to determine the precise extent of this obligation which affects innkeepers, or of the counterpart which falls to be performed by the traveller. Generally speaking, however, the innkeeper is under obligation to furnish a traveller in itinere ( a) with necessary refreshment and ( b) with necessary sleeping accommodation. The traveller who calls in the daytime is entitled to obtain at a common inn what he requires in the shape of food and drink. If he desires to stay overnight he must also be provided with a bed. The defender's manager, Mr Ryan, suggested that the legal obligation of a common innkeeper in the matter of accommodation of a traveller is fully discharged if he provides him with a bed for one night. There does not seem to be any authority for this suggestion. On the contrary, it is in conflict with what was laid down in Lamond, where Chitty, L.J., at p. 548, says—‘It may be a difficult question to determine in any case when the character of traveller ceases and that of lodger or boarder begins.’

In return for the provision of refreshment

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and accommodation the traveller is bound to pay a reasonable price. It is not necessary for the decision of this case to determine what is a reasonable price, and I do not propose to attempt to do so. It is certainly not that price which the traveller considers reasonable, nor that which may be demanded by the innkeeper. In cases of dispute it would be for a court of law to decide whether the charges made were or were not reasonable. It seems, however, to be settled by such cases as Thompson v. Lacy that a traveller is liable to pay the ordinary tariff charges of the inn. If the charge is adequate to the sort of accommodation provided, and if it is similar to that exacted by other inns of the same class, then probably it could not successfully be resisted as being unreasonable.

It is suggested by the defenders' counsel that a traveller in itinere, claiming and receiving refreshment and accommodation as such, is not entitled to ‘the run of the hotel’ which the ordinary guest enjoys. If, however, the ordinary charges are exacted, it is difficult to assent to this suggestion. When the defenders charge a guest 6s. or 7s. for a table d'hôte dinner the guest is paying for something beyond the value of the actual food consumed. He is paying for the privilege of eating food which is well cooked and well served in a sumptuously furnished room. He is paying for the privilege of enjoying the postprandial cigar and coffee in a comfortable lounge or smoke-room. If then the traveller in itinere is asked to pay the ordinary charges, it would seem to be difficult to resist a claim to enjoy the ordinary privileges of the inn. The case would be different if the traveller were offered special fare at a special rate.

The defenders resisted the contention that their hotel is a common inn on the following grounds—(1) They maintained that they did not invite travellers in itinere to enter the hotel. I have already dealt with this point by holding that, where the public are invited indiscriminately, the class of travellers in itinere is impliedly included. I do not suppose that the Hotel Metropole in Brighton issued a special invitation to travellers, and yet it was held to be a common inn. (2) The defenders maintained that their invitation to the public is to come to the hotel and make terms—to come in and buy at the defenders' price; that in every case there was a special contract entered into, and that this mode of doing business excluded the inference that they were subject to the obligation laid on keepers of a common inn. This does not appear to me to be an accurate statement of the manner in which the defenders conduct their business. I am of opinion that the defenders' business is conducted in exactly the same way as in other first-class hotels. Certain classes, e.g., commercial travellers, Cook's tourists, families, conferences, members of the Motor Union and Automobile Association are given special terms. Again, a guest may request and obtain inclusive or en pension terms, and any visitor may make with the manager a special contract regulating the terms on which the use of the hotel is to be obtained. In the ordinary case, however, a guest entering the hotel does so on the footing that the usual tariff charges will be made. These charges are revised from time to time, in accordance with the rise and fall of prices, but at any given time they are fixed. The visitor desiring to sleep in the hotel obtains at the booking-office of the hotel a card with the number of a bedroom thereon, and a nightly price fixed therefor, depending as to amount on the situation of the room. If table d'hôte meals are taken the guest knows that he will be charged so much for breakfast, so much for lunch, and so much for dinner. The defenders' contention that their business is by way of special contract and not by way of legal duty or obligation comes to no more than this, that the question of their duty to a traveller in itinere has never been raised before now. The defenders have never previously had occasion to consider their relationship to travellers in itinere. Thus while on the one hand this class has never been specially invited to enter the hotel, it has on the other hand never been specially excluded therefrom. Mr Ryan, the defenders' manager, really conceded this first point in the case by certain admissions which he made in cross-examination at the proof. If the concession made by Mr Ryan at the proof had been made and acted upon in the Spring of 1918, the pursuer, it seems to me, would have had no basis for the action which he is now prosecuting.

I therefore hold, on this first point in the case, that it has been proved that the defenders' hotel is a common inn, and as such bound to supply travellers in itinere with necessary refreshment and accommodation at reasonable prices.

2. The next point debated was whether it had been made out ( a) that the pursuer was a traveller in itinere when he asked and was refused accommodation in the defenders' hotel; ( b) that the defenders had refused him what he was entitled to as a traveller in itinere; and ( c) that by his declaratory conclusion the pursuer only demands what as a traveller in itinere he is entitled to.

Whether or not an individual is at any given time a traveller in itinere is a question of fact ( Lamond, supra). Prior to January 1918 the pursuer had been a lodger or boarder in the hotel. The defenders were entitled at any time and without any excuse to terminate this relationship. They did so by their manager's letter of 17th January 1918. But this letter does something more. The concluding paragraph is an intimation to the pursuer to choose another hotel when in Edinburgh. The pursuer thereafter consulted his solicitor, and evidence was given by the pursuer and his law agent to the effect that in or about the end of January or beginning of February 1918 the pursuer when he was de facto a traveller in itinere asked for and was refused accommodation in the defenders' hotel. I have no reason to doubt that this request was made. It was not necessary

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for the success of his case that the pursuer should invent this incident, and I do not think it was invented. Thereafter the pursuer's agents wrote the letter of 2nd April, claiming for their client as matter of right the accommodation and entertainment due to ‘a member of the travelling public.’ Before this letter was considered by the defenders and answered, the pursuer on 8th April sent the telegram of that date and received the reply. The defenders point out that the pursuer's telegram was a request to reserve a room two days after receipt of the telegram, and that they were within their rights in refusing to reserve accommodation. I agree. But the reply is an absolute declinature to provide accommodation. There is no invitation to the pursuer to appear personally on the Wednesday and take his chance of obtaining a vacant room. The defenders replied to the letter of 2nd April on the 13th of that month, and in that letter the manager wrote—‘I cannot, therefore, come to any arrangement such as you indicate.’ This was a specific declinature to recognise any rights the pursuer may have as ‘a member of the travelling public.’

Finally, there is no offer on record to recognise any rights which the pursuer may have as a traveller. On the contrary, the averments of the defenders on record, and the evidence of the two directors who appeared in the witness-box, satisfied me that the defenders had resolved that they would not allow the pursuer to enter the hotel unless they were compelled to do so.

I therefore hold it proved that the pursuer when a traveller in itinere asked and was refused the accommodation due to a traveller by a common inn, and that his action is accordingly justified.

It was said, however, for the defenders that the declarator which he craves cannot be granted in the terms libelled. The part of the declarator objected to is the crave that the pursuer should be entertained ‘on the same terms and conditions as other travellers.’ It is to be noted that the phrase used is ‘other travellers,’ not ‘other guests.’ Had the latter term been employed the criticism of the defenders' counsel, to the effect that the pursuer was demanding the same terms as the most favoured visitor, would have been justified. But I read this clause of the declarator as a demand for similar treatment as is accorded to other travellers in itinere—that is to say, it is nothing more than a periphrastic mode of craving accommodation at ‘reasonable prices.’ Construed in this sense, which I think is the reasonable construction, the clause seems to me to be unobjectionable.

(3) The only remaining matter to be considered is the question of justification. If the defenders' hotel is a common inn as to which the pursuer has certain legal rights when in itinere, it is plain that he cannot be deprived of these rights at the pleasure of the defenders. He can only be excluded from the hotel when possessed of the privileges of a traveller on grounds sufficient in law to justify exclusion. The defenders' third plea-in-law must therefore be repelled.

Have the defenders proved that the pursuer is so unsuitable and objectionable a guest as to entitle them to refuse him for all time the privileges of a traveller in itinere?” This part of the case has two branches—( a) the grounds of justification averred on record, and ( b) the grounds as to which no notice has been given in the pleadings, but with reference to which evidence has been led and recorded under reservation of its competency.

I have already to some extent expressed my opinion as to the averments on record. It is obvious that the defenders are not entitled to exclude the pursuer from their hotel because he is a Jew; and it would have made no difference in my opinion had it been proved that he is a Jew of German origin An individual is not responsible, and ought not to be made responsible, for his ancestry. But the proof shows that the progenitors of the pursuer were Poles and not Germans, and he himself was born and has all along lived in Great Britain. Nor is it a sufficient ground of exclusion that the pursuer is a money-lender. That is a lawful occupation, and therefore money-lenders are entitled to all privileges enjoyed by other members of the State, including the right of being entertained in the common inns of the country. The pursuer necessarily associates with other money-lenders and borrowers or applicants for loans and advertises in newspapers in order to conduct his business, and his doing so does not make him an unsuitable guest in an hotel.

With reference to the general averment of adverse press comment on the pursuer's mode of doing business, the defenders produced a copy of Truth of date 29th July 1914, which contains on pp. 268 and 269 a paragraph which refers to the pursuer, and alleges that he had violated section 2 of the Money-lenders Act by sending out a circular that ‘a private gentleman’ was prepared to advance money at a certain address. There is no evidence that the pursuer, if the paragraph applies to him, had not registered at the address mentioned in the circular, and if he had so registered it is a moot point whether he was in breach of the terms of the Act by refraining from giving in the circular the name under which he had registered. But this occurrence in 1914 is obviously stale, and in view of the long residence of the pursuer thereafter in the defenders' hotel it had plainly no effect in 1918 in determining the defenders to exclude him from their house.

The two other copies of Truth produced by the defenders are dated respectively 28th November 1917 and 24th April 1918, and refer, inter alia, to the pursuer's association with Hyman Cohen, to which I shall subsequently allude. There is also a reference to a money-lending transaction in which the borrower had been charged what the writer describes as ‘exorbitant interest.’ Now for many years the editor of Truth has waged a crusade against money-lenders, and I for one recognise that in doing so—in warning foolish people who are in financial difficulties to avoid money-lenders— Truth has been performing a valuable public service.

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But money-lenders take great risks' and for their own protection they impose onerous terms on borrowers, and as regards the pursuer nothing more is said by Truth regarding him than that like most of his fraternity his conditions of lending are somewhat unconscionable. If this were to be held as justification of the defenders, then very few money-lenders would be entitled to enter a common inn. I am unable to hold that the defenders on this ground have established their defence of justification. This disposes of the grounds of exclusion averred on record.

But the defenders led evidence to establish justification in respect of certain circumstances which are not referred to on record. The Dean of Faculty, for the pursuer contended that the evidence was incompetent on the ground of want of notice and argued that it should be ignored. It seems to me that that contention is well founded. On this part of the case the defenders are really pursuers. They have the burden of proving that they were justified in refusing the pursuer what I have held to be his legal rights. They were therefore bound to disclose by way of averment the facts which they relied on and which they proposed to prove, and their duty was to disclose the whole of those facts. As, however, the evidence has been recorded, 1 shall state the conclusions I have reached upon it, on the assumption that it is competent.

Evidence was led as to a somewhat discreditable occurrence which took place in April 1916. The pursuer had been entertaining guests at dinner; the guests got the worse of drink and made a disturbance in the hotel. No complaint is made as to the pursuer's conduct on that occasion, but it is plain that a person who brings objectionable friends to an hotel may himself be justifiably excluded as undesirable. The incident however was isolated. The guests who had then offended were entertained by the pursuer on subsequent occasions and apparently never again misconducted themselves. The matter was amicably arranged and ended, and I am satisfied that the occurrence had no effect two years later on the defenders' attitude towards the pursuer. If it had, I should have expected that it would have been founded on in the pleadings.

In the Autumn of 1917 Hyman Cohen was convicted and sentenced for fraud in connection with recruiting for the army. He had been apprehended on this charge in July 1917. The pursuer was then a partner of Cohen in a money-lending business. There is no suggestion that the pursuer was privy to the crime of which Cohen was convicted. If he had been he would also have been prosecuted. On Cohen's conviction the pursuer severed his connection with him, and a litigation between the quondam partners is at present pending in this Court. It would manifestly be unjust to ostracise the pursuer or deprive him of his legal rights because a former partner fell into crime, and I am not prepared to hold that this occurrence afforded any justification for the defenders' actings.

There was some evidence as to an incident in connection with obtaining a ‘room in the hotel for a friend of the pursuer named Hurwitz, a money-lender, but I did not understand the Lord Advocate to lay any stress on this occurrence, and in my opinion it does not afford any aid to the defenders on this part of the case.

Evidence was led as to the pursuer's demeanour in the hotel. It was thought that he attempted to attract attention to himself—to make himself conspicuous. I am not prepared to hold that an hotel guest who, through vanity or eccentricity, attracts public attention to himself is an unsuitable or objectable guest.

There remains for consideration the evidence given by the directors, Mr Gray and Mr Younger. I need hardly say that I was impressed by the testimony of these gentlemen, and have given their evidence most careful consideration. Assuming the competency of their testimony, I may say that it is the only part of the proof which has had a tendency to make me reach a different judgment than that which I have already pronounced.

Their evidence consists of two branches—( a) what was reported to them by way of complaint by visitors to the hotel; and ( b) what they themselves saw.

As to complaints by visitors, no guest had been adduced to depone to the matter of complaint. The directors themselves put it no higher than this, that the complaining guests objected to the pursuer being received in the hotel solely because he was a money-lender. No one complained that he had been carrying on or attempting to carry on his business in the hotel. It is plain from what I have already said that the pursuer's occupation is not a reason sufficient in law for debarring him from his privileges as a traveller. In the case of Lamond what seems to me to be a stronger case for exclusion was negatived by the County Court Judge. It was maintained in defence in that action that the plaintiff was under the delusion that enemies were seeking to injure her, and that complaints had been made by other visitors to the hotel; but it was expressly found by the County Court Judge that the condition and conduct of the plaintiff were not such as to justify the defendant in refusing her accommodation. The pursuer, as evidence of his suitability as a guest in an hotel of the standing of the defenders', produced a letter from the manager of the Caledonian Station Hotel showing that he had a room there at the time of the proof. After the proof had been closed and I had taken the case to avizandum, the defenders asked me to authorise them to lodge in process a letter which it was stated would show that influence had been brought to bear on the manager of the Caledonian Station Hotel to induce him to accept the pursuer as a guest. I considered that at the stage when this motion was made I was precluded from granting it.

What the directors themselves saw was that the pursuer occasionally entertained

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young officers to dinner, and at times conversed with naval and military men in the lounge. From this the directors suspected that the pursuer was doing or attempting to do money-lending business with these officers.

I have no difficulty in disposing, adversely to the pursuer, of a contention which was advanced by the Dean of Faculty as to this part of the case. The Dean contended that even if it had been established that the pursuer had conducted money-lending business in the hotel, or had attempted to do so, the defenders would not have been justified on that ground in excluding him from the hotel. He assimilated such action on the pursuer's part to that of a tradesman—the Dean instanced the case of a brewer—taking a room in the hotel with the object and in the hope of doing business with the hotel manager. This analogy seems to be false in two respects—( a) the suggestion is that the pursuer did business, or attempted to do so, not with the hotel manager, but with guests; and ( b) in the case suggested the conduct of the supposititious tradesman would be legitimate, while what is alleged against the pursuer would not. It would in his case be a breach of the second section of the Money-lenders Act of 1900, which authorises money-lending transactions to be entered into only at the money-lender's registered address. In short, it would amount to a crime or an attempt to commit a crime, and if this had been proved against the pursuer I should have had no difficulty in holding that the defenders were justified in excluding him from their hotel, so long at all events as he continued to be a moneylender.

The Lord Advocate contended that on the evidence of the two directors the defenders had probable cause for excluding the pursuer, and that this sufficed as complete justification. I do not agree. The defence of probable cause in a case of this kind would perchance protect the defenders as to the past, and is an additional ground for supporting the nominal award of damages which I formerly made. But when the question raised is as to the relations of parties in the future, then the probable cause alleged must be probed in order to ascertain whether it is a real cause and sufficient in law to justify exclusion.

The question, then, comes to be whether the defenders have proved that the pursuer either conducted money-lending business in the hotel or attempted to do so. Were the suspicions of Mr Gray and Mr Younger well founded? I am unable to hold that they were. It was certainly not a necessary inference from what they saw to conclude that the pursuer was trying to prosecute his business. I do not think the inference was even justifiable or reasonable. The pursuer had relatives in the army, one of whom gave evidence on his behalf, and his motives in entertaining and conversing with British officers were probably entirely different from those suggested. No officer has been brought to prove that the directors' suspicions were well founded. I quite appreciate the defenders' difficulty in obtaining such evidence; but it is for them to prove this part of the case, and the conclusion I reach is that they have failed to do so. The pursuer must therefore get the declarator which he seeks,

No complaint was made by either side as to the award of damages formerly made.

The result of the whole matter is that I shall of new pronounce decree in terms similar to that of 8th November 1918.”

The defenders reclaimed, and argued—This was a declarator de futuro, of an abstract proposition of law, did not arise out of any practical concrete question, and was therefore incompetent. The pursuer asked a general declarator of the law as to innkeepers, followed by a crave of damages for breach of duty. The declarator, however, was treated as an isolated thing and not as the preface to the claim of damages. A mere dispute as to the law between two individuals would not entitle one of them to come to the Court to have the law declared. There must be some immediate practical interest concerned— North British Railway Company v. Birrell's Trustees, 1918 S.C. (H.L.) 33, per Lord Dunedin at p. 47, 55 S.L.R. 102; Callender's Cable and Construction Company, Limited v. Corporation of Glasgow, 1900, 2 F. 397, per Lord President Kinross at p. 399, 37 S.L.R. 301. That applied here because the dispute concerned the complete rights of the pursuer as a member of the travelling public. The single incident founded on was not proved. The telegram would not serve as the foundation of such a declarator because there was no obligation on an innkeeper to reserve accommodation ab ante. A concrete case further could not be created by correspondence. The pursuer really asked the Court to codify the law as to innkeepers, but the proposition of law formulated by the declarator was not well founded. The declarator did not state the law accurately and fully. Even assuming that the declaratory conclusion was well founded, it would not avail the pursuer, because he had neither averred nor proved that the North British Station Hotel was a common inn, i.e., one of those places to which the legal incidents of an inn attached. The defenders were not bound to define these incidents. If the defenders had elected to attach to their hotel a certain character, viz., that of an inn, their exclusive rights would suffer certain abatements, but not more than were necessary to subserve the public purpose. The public purpose was, however, something different from what it was in the old days. It was bed and board or the equivalent of protection from the weather for those who were travelling, but this did not mean that in a hotel in a large town the traveller was entitled to all the privileges of the hotel— Lamond v. Richard and the Gordon Hotels, Limited, [1897] 1 QB 541. The pursuer assumed that every traveller was entitled to equal treatment, but there was no such duty on innkeepers; the standard was reasonable not equal treatment. On the duties of innkeepers reference was made to Great Western Railway Company v. Sutton,

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L.R., 4 E. & I. App. 226, per Blackburn, J., at p. 237; Reg. v. Sprague, 1899, 63 Justice of the Peace, p. 233; Pidgeon v. Legge, 1857, 21 J.P. 743; Thompson v. Lacy, 1820, 3 B. & Ald. 283, per Bayley, J., at p. 286, and Best, J., at p. 287; Rex v. Ivens, 1835, 7 C. & P. 213; Lane v. Cotton, 12 Mod. Reports, 473 at 484; Bankton, book i, tit. xvi (vol. i, pp. 378 and 382); Hutchison's Justice of the Peace Law, 3rd ed., vol. ii, pp. 165, 508–511. As regarded equal treatment the position of an innkeeper was equivalent to that of a carrier, and the statement of the law given by Holt, C. J., in Lane v. Cotton, supra, had been accepted as authoritative in subsequent cases—Smith's Leading Cases (vol. i, p. 136), referring to Burgess v. Clements, 1815, 4 M. & S. 306, per Lord Ellen borough at p. 310. Of the old Scots Acts relating to innkeepers the only one still in force was that of 1424, cap. 27, and this did not support the pursuer's contention. While the purpose of the obligation on the innkeeper was to give lodging and board to a benighted traveller, traveller must be construed in the strictest sense. A person to be a traveller must be on his way—Stroud's Judicial Dictionary, 2nd ed., p. 2093, voce “Traveller,” head 4; Cairns v. Todd, 1910 S.C. (J.) 17, 47 S.L.R. 165. Further, a traveller's rights as against an innkeeper were always subject to a right of exclusion on reasonable cause shown— Strathearn Hydropathic Company, Limited v. Inland Revenue, 1881, 8 R. 798, 18 S.L.R. 564; Queen v. Rymer, 1877, 2 QBD 136, per Kelly, C.B., at p. 140. In the present case there were reasonable grounds for refusal in respect that the pursuer was a notorious money-lender who had been pilloried and held up to contempt in the public press and who had made no attempt to vindicate his character, who had been associated in business with a person convicted of fraud, who had on one occasion entertained guests at the hotel who had got drunk and been expelled, and who there was grave ground to suspect was utilising the opportunities which the hotel afforded to further his money-lending business more especially with regard to young officers. It was further a relevant consideration that complaints had been received by the management from guests in the hotel as to his presence therein.

Argued for the respondents—The declarator was competent and was competently expressed. The pursuer asked the Court to declare a particular right which had been invaded, and his right was not confined to an emergency—Ersk. iv, 1, 46; Stair, iv, 3, 47; Hogg v. Parochial Board of Auchtermuchty, 1880, 7 R. 986, 17 S.L.R. 687; Fleming v. M'Lagan, 1879, 6 R. 588, per Lord Young at p. 598, 16 S.L.R. 316. In any event the Court was entitled to modify the terms of the declarator— Assets Company v. Ogilvie, 1897, 24 R. 400, 34 S.L.R. 195. The defenders as owners of the North British Station Hotel were innkeepers. It was a railway hotel extensively advertised, without limitation, with invitation to all and sundry, with an open door on the street. In Scots law as distinguished from English law there was no mention of the expression “common inn;” the only term considered was “innkeepers.” Both in Strathearn Hydropathic Company, Limited v. Inland Revenue, cit. sup., and in Ewing v. Campbell, 1877, 5 R. 230, 15 S.L.R. 145, the question was considered as affecting innkeepers, hotelkeepers, and hydrokeepers indifferently. No difference was created by the fact that the defenders made terms with their guests, because all innkeepers did that. If reference was made to the law of England it would be seen that the same law was applied there to hotels of the same character— Gordon v. Silber, 1890, 25 Q.B.D. 491. In these circumstances the pursuer as a member of the travelling public was entitled to reasonable accommodation for a reasonable length of time, not limited to one night, the time being dependent on the circumstances of the case— Oliver v. Loudon, 1896, 23 R. (J.) 34, per Lord M'Laren at p. 38, 33 S.L.R. 274; Halsbury's Laws of England, vol. xvii, p. 309, voce Inns and Innkeepers; Story on Bailments, 4 ed., pp. 473, 486, and 487; Purves' Scottish Licensing Laws, p. 157. In the present case there was an absolute declinature on the part of the defenders to give any accommodation, and this not merely in answer to a written request but also to a personal call by the pursuer which was established by the evidence. There was nowhere an offer of even limited accommodation. This formed a sufficient foundation for the action of declarator. The hotelkeeper was bound to receive travellers even though they might be convicted criminals, though he might be entitled to segregate them for good reasons. In the present case mere comment in the public press would not justify segregation and certainly not exclusion. There was no authority in the law of Scotland for the segregation of merely unwelcome, apart from objectionable, guests—Macdonald's Criminal Law, p. 162 (hamesucken gua inns); Bell's Dictionary (Watson ed.), p. 534. An innkeeper was bound to receive every decently behaved member of the public— Strathearn Hydropathic Company, Limited v. Inland Revenue, cit. sup. There was no justification either in the averments made on record or in the facts proved for the attitude adopted by the defenders to the pursuer. No outside witness was adduced to speak to damage to the hotel. On the question of damages if a legal right was invaded the pursuer was entitled to damages even though they were merely nominal— Webster & Company v. Cramond Iron Company, 1875, 2 R. 752, 12 S.L.R. 496; Mayne on Damages, chap. ii, pp. 4 and 5; Owners of Steamship “Mediana” v. Owners, Master, and Crew of Lightship “Comet,” [1900] AC 113.

At advising—