GUESTS, WAGERS, AND GAMES.
A fashionable young gent--a dweller in the city--(on whose face nature,
as in the case of the Honorable Percy Popjoy, had burst out with a
chin-tuft, but, exhausted with the effort, had left the rest of the
countenance smooth as an infant’s cheek) had been enjoying himself with
some kindred spirits, (and some spirits far stronger, too,) and being
belated, as well as rather bewildered, with the potations of the
evening, went to bed in our hotel. The next morning he found himself the
possessor of a splitting headache, but minus his gold repeater; so he
kindly and condescendingly consulted me upon the subject of the
proprietor’s liability to make good his loss.
I told him that in my opinion he had better save up his money and buy a
new watch, for there were several reasons why the hotel-keeper need not
give him one.
“What are they?” he asked.
“We need not consider,” I replied, “the question of your negligence in
carelessly exhibiting your watch among a lot of people at the bar, nor
in leaving your door unlocked, nor need we say that because your
intoxication contributed to the loss, therefore the landlord is not
liable.[119] The fact that you were not a traveler is sufficient to
prevent your recovering. Long since it was laid down in old Bacon that
inns are for passengers and wayfaring men, so that a friend or a
neighbor can have no action as a guest against the landlord.”[120]
“What in thunder have I to do with what is laid down in old Bacon?”
“What is to be found inside old Bacon, and old calf, and old sheep, has
a good deal to do with every one who makes an old pig of himself,” I
testily replied.
“I trust, sir, that you use that last epithet in its Pickwickian sense,”
said the young exquisite.
“Certainly, certainly,” I hastened to reply, “if you will so accept it.”
“Then I would ask,” continued my interrogator, “must a man be a certain
length of time at an hotel before he is entitled to the privileges of a
guest?”
“Oh, dear, no! Merely purchasing temporary refreshment at an inn makes
the purchaser a guest and renders the innkeeper liable for the safety of
the goods he may have with him,[121] if he is a traveler.”
“But who is a traveler?”
“One who is absent from his home, whether on pleasure or business.[122]
A townsman or neighbor, who is actually traveling, may be a guest.[123]
In a New York case, where a resident of the town left his horses at the
inn stables, it was decided that the proprietor was not liable for
them.[124] So if a ball is given at an hotel the guests present cannot
hold the proprietor liable for any losses occurring while they are
tripping the light fantastic toe, as he did not receive them in his
public capacity.”[125]
“But,” remarked a person standing by, “but how would it be if a traveler
left his baggage at an hotel and stopped elsewhere?”
“If one leaves any dead thing, as baggage, at an inn he will not be
considered a guest;[126] if, on the other hand, he leaves a horse, he
becomes entitled to all the privileges and immunities of a guest, even
though he himself lodges elsewhere.”[127]
“Why the difference?” quoth one.
“I might, perhaps, be more correct if I said that on this point the
authorities are antagonistic.[128] The distinction, however, was made
because, as the horse must be fed, the innkeeper has a profit out of it,
whereas he gets nothing out of a dead thing.[129] One need not, however,
take all his meals or lodge every night at the inn where his baggage is.
It is sufficient if he takes a room and lodges or boards at the house
part of the time.”[130]
“I think I have heard that if one makes an agreement for boarding by the
week, he ceases to have the rights of a guest,” said the previous
speaker.
“The length of time for which a person resides at an hotel does not
affect his rights, so long as he retains his transient character;[131]
nor does he cease to be a guest by proposing after his arrival to remain
a certain time, nor by his ascertaining the charges, nor by paying in
advance, nor from time to time as his wants are supplied,[132] nor even
by arranging to pay so much a week for his board, if he stays so long,
after he has taken up his quarters at the house;[133] but if when he
first arrives he makes a special agreement as to board,[134] or for the
use of a room,[135] he never becomes a guest, and the innkeeper’s
liability is totally different, being only that of an ordinary bailee.
One visiting a boarder at an inn is a guest, and the keeper is liable
for the loss of his goods, though not of the boarder’s.”[136]
“And when does a person cease to have the rights of a guest?” again
queried the questioner.
I replied, “An innkeeper’s liability, as such, ceases when the guest
pays his bill and quits the house with the declared intention of not
returning, and if he then leaves any of his possessions behind him, the
landlord is no longer liable for their safe keeping, unless he has taken
special charge of them, and then only as any other common bailee would
be.[137] And this appears to be so, even when an arrangement has been
made for the keep of the guest’s horse.[138] Unless specially
authorized, a clerk cannot bind his master by an agreement to keep
safely a guest’s baggage after he leaves.”[139]
“But supposing one pays his bills and goes off expecting to have his
traps sent after him immediately to the station?” questioned a new
interrogator.
“Mrs. Clark went to ‘The Exchange Hotel’ in Atlanta, with eight trunks;
on leaving, the porter of the inn took charge of the baggage, promising
to deliver it for her at the cars. He lost two of the pieces, and it was
held that the liability of the hotel-keeper continued until such
delivery was actually made.[140] On the same principle that when an
innkeeper sends his porter to the cars to receive the baggage of
intending guests, he is responsible until it is actually re-delivered
into the custody of the guests. And where a man paid his bill for the
whole day and went off, leaving his trunk, with twenty cents for
porterage, to be sent to the boat, the innkeeper was held liable until
the baggage was actually put on board.[141] The liability for baggage
left with an innkeeper with his consent, continues for a reasonable time
after the settlement of the bill, and even after a reasonable time he is
responsible for gross negligence.[142] Where a visitor had actual notice
that the landlord would not be responsible for valuables unless put
under his care, and on preparing to depart gave a trunk containing
precious goods into the care of the servants and it was lost, yet the
innkeeper was held liable.[143] So, also, where valuables were stolen
from a trunk after the guest had packed it, locked his room, and given
notice of his departure, and delivered the key of his room to the clerk
to have the trunk brought down.[144] What is all that row about?”
Weary of the conversation, and being attracted by some rather loud
conversation in another part of the room, I walked off to see what it
was all about, and soon found that it was anent a young lady’s age.
“I bet you she is--” began one of the disputants.
“Stop!” I cried, “that is not a proper wager.”
“Begad! what do you mean, sir?” was queried in tones not the mildest.
“Simply that where a wager concerns the person of another, no action can
be maintained upon it. As Buller, J., once remarked, a bet on a lady’s
age, or whether she has a mole on her face, is void. No person has a
right to make it a subject of discussion in a court of justice, whether
she passes herself in the world to be more in the bloom of youth than
she really is, or whether what is apparent to every one who sees her, is
a mole or a wart; although a lady cannot bring an action against a man
for saying she is thirty-three when she passes for only twenty-three,
nor for saying she has a wart on her face. Nor will the courts try a
wager as to whether a young lady squints with her right eye or with her
left.[145] And Lord Mansfield came to very much the same conclusion in
discussing the law in a celebrated wager case concerning the gender of a
certain individual,[146] because, as his lordship remarked, actions on
such wagers would disturb the peace of individuals and society.”
“Confound it, the fellow seems to have swallowed a law library,”
muttered one man; while another said,
“But surely many wagers equally as absurd have been sued on in courts of
law with success.”
“There is no doubt of that,” I replied. “It was done upon a bet of ‘six
to four that Bob Booby would win the plate at the New Lichfield
races;’[147] also, upon a wager of a ‘rump and dozen’ whether one of the
betters were older than the other.[148] In the latter case the C. J.
modestly said that he did not judicially know what a ‘rump and dozen’
meant; but another judge more candidly remarked that privately he knew
that it meant a good dinner and wine. And a bet as to whose father would
die first was held good, although one old man was defunct at the time,
the fact not being known to the parties.[149] But Lord Ellenborough
refused to try an action on a wager on a cock-fight.”[150]
“Although at common law many wagers were legal,” remarked the English
gentleman alluded to aforetime, “still, in England, as the law now
stands, all wagers are null and void at law,[151] and if the loser
either cannot or won’t pay, the law will not assist the winner;[152] but
either party may recover the stake deposited by him, before it is paid
over to the winner by the holder. That point was settled in the case of
a genius who bet all the philosophers, divines, and scientific
professors in the United Kingdom, £500, that they could not prove the
rotundity and revolution of the earth from Scripture, from reason, or
from fact, the wager to be won by the taker if he could exhibit to the
satisfaction of an intelligent referee a convex railway, canal, or
lake.”[153]
“Was the referee satisfied?” asked a bystander.
“Yes; it was proved to his satisfaction that on a canal, in a distance
of six miles, there was a curvature to and fro of five feet, more or
less. And then the man asked his stake back, and got it, too.”
“In New York,” I said, “it has been held, under a statute giving the
losing party a right of action against the stake-holder for the stake,
whether the stake has been paid over by the stake-holder or not, and
whether the wager be lost or not, that the holder is liable to the
loser, although he had paid over the stake by his directions.[154] And
in several of the States, if the wager is illegal, the stake-holder is
liable to be made refund the stakes, notwithstanding payment to the
winner.”[155]
“Such decisions are subversive of all honor and honesty,” said a betting
looking character.
“Not so. A bet should be a contract of honor, and no more. One should
not bet unless he can trust his opponent. The time of the courts of law
should not be taken up by such matters.”
“Are the American courts as hard upon wagers as the English?” asked the
Englishman.
“Quite so,” I replied. “In some parts of the country they have been
prohibited by statute, and some courts have denied them any validity
whatever. In Colorado it was held that the courts had enough to do
without devoting their time to the solution of questions arising out of
idle bets made on dog and cock-fights, horse-races, the speed of trains,
the construction of railroads, the number on a dice, or the character of
a card that may be turned up.[156] Even if admitted to be valid in any
case, it is quite clear upon the authorities that they cannot be upheld
where they refer to the person or property of another, so as to make him
infamous or to injure him, or if they are libelous, or indecent, or
tend to break the peace.[157] In some States it has been decided that
wagers upon the result of elections are against public policy, and
therefore void. In California, during the presidential campaign of 1868,
a man called Johnson bet that Horatio Seymour would have a majority of
votes in that State, while one Freeman bet that U. S. Grant would be the
lucky man. Mr. Russell was the stake-holder. After the result of the
election was known, Johnson demanded his money back, but Russell
honorably paid it over to the winner; so J. turned round and sued for
it. The Court held, that if Johnson had repudiated his bet and asked for
his money before the election, or before the result was known, he might
have got it, but that now he was too late.[158] Judge Sanderson remarked
that in times of political excitement persons might be provoked to make
wagers which they might regret in their cooler moments. No obstacles, he
thought, should be thrown in the way of their repentance, and if they
retracted before the bet has been decided, their money ought to be
returned; but those who allow their stakes to remain until after the
wager has been decided and the result known, are entitled to no such
consideration; their tears, if any, are not repentant tears, but such as
crocodiles shed over the victims they are about to devour.”[159]
“Ah, then it has been judicially decided that crocodiles weep,”
sarcastically observed a bystander.
From talking on wagering, we naturally passed to the subject of
gaming--a kindred vice.
“I believe that in England there is a law forbidding an innkeeper to
allow any gaming on his premises,” I remarked.
“Yes,” said the English barrister. “Any licensed innkeeper who suffers
any gaming or betting or unlawful games upon his premises, runs the risk
of being fined.”[160]
“What do they consider gaming?” asked a rakish looking individual, who
seemed as if he understood practically what it was.
“Playing at any game for money,[161] or beer, or money’s worth;[162] or
even exhibiting betting lists.”[163]
“That seems precious hard,” quoth the rake.
“In one case an innkeeper was punished for allowing his own private
friends to play at cards for money in his own private room, on the
licensed premises.”[164]
“Not much liberty in England,” remarked the youth.
“That was almost as bad as the tavernkeeper who was fined by some
energetic Yorkshire magistrate for being drunk in his own bed, in his
own house!”[165] observed another.
“Farewell to the fond notion that an Englishman’s house is his castle!”
melodramatically exclaimed the youth.
“But please allow me to say that Lust, J., held, in a very recent case,
that although an innkeeper, if drunk on his own premises while they are
open, is as much amenable to the penalty as if he was found drunk upon
the highway, yet it could never have been intended that an innkeeper who
is drunk in his own bedroom should be liable any more than a person--not
a publican--found drunk in his own private house,”[166] said the
Englishman.
“And what, pray, may be the unlawful games which are so strictly
forbidden inside the tavern--the poor man’s home?” asked the youth.
“Dice, ace of hearts, faro, basset, hazard, passage, or any game played
with dice, or with any instrument, engine, or device in the nature of
dice, having figures or numbers thereon, and roulette, or rolly-polly;
and bull-baiting, bear-baiting, badger-baiting, dog-fighting,
cock-fighting, and all such games, are unlawful,” replied the
Englishman.
“Surely, you have not got through the black list yet,” ironically
remarked our rake.
“Those mentioned, and the game of puff and dart, if played for money or
money’s worth,[167] and lotteries and sweepstakes, except in cases of
art unions, where works of art are given as prizes, are all the games I
remember, that are prohibited by the Statutes of Henry VIII, George II,
and her present Majesty.”
“May I ask what games you are permitted to indulge in? I do not see that
any are left, except the ‘grinning through a halter,’ spoken of in _The
Spectator_, in which highly intellectual and moral contest the rule is
“‘The dreadfullest grinner
To be the winner.’
“Backgammon and all games played upon backgammon boards,[168] quoits,
tennis, and all games of mere skill, are perfectly lawful, unless played
for money or money’s worth.”[169]
“And what of billiards?”
“Oh, that is not unlawful unless played for money.”[170]
“No wonder,” said Mr. Rake, “that people emigrate from that benighted
land. And yet Henry VII, and James I, and his estimable son, Prince
Henry, were remarkably fond of having a game of cards; although Scotch
Jamie was so lazy a coon that he required a servant to hold his hand for
him. I believe that those good sovereigns who passed these virtuous laws
took care to except from their operation their loyal palaces.”[171]
“I would remind you, my good sir,” I said, “that gaming is forbidden in
almost all the States; that a judge in South Carolina said that if he
could have his own way, he would hold that a billiard room kept for
filthy lucre’s sake was a nuisance at common law;[172] and the same
judge decided that a bowling-alley kept for gain was a nuisance. In
Kentucky, it was held unlawful to throw dice to see who should pay for
the drinks;[173] in Virginia, betting on a game of bagatelle was held
illegal;[174] while in Tennessee, selling prize-candy packages was
decided to be gaming and indictable.”[175]
“Alas, my country!”
“By the way, do you remember, sir, the distinction the Ettrick Shepherd
drew between the card-playing of old people and that of young folk?”
asked an elderly bystander of Scotian descent.
“No, what was it?”
“He says, ‘you’ll generally fin’ that auld folk that play carrds have
been raither freevolous, and no muckle addicteed to thocht, unless
they’re greedy, and play for the pool, which is fearsome in auld age.
But as for young folks, lads and lasses like, when the gude man and his
wife are gaen to bed, what’s the harm in a gaem at cairds? It’s a
cheerfu’ noisy sicht o’ comfort and confusion; sic lookin’ into ane
ainither’s han’s! sic fause shufflin’! sic unfair dealin’! sic winkin’
to tell your pairtner that ye hae the king or the ace! And when that
winna do, sic kicken’ o’ shins an’ treadin’ on taes aneath the
table--often the wrong anes! Then what gigglin’ amang the lasses! what
amiable, nay, love quarrels between pairtners! jokin’ an’ jeestin’, and
tauntin’ an’ toozlin’--the cawnel blawn out, an’ the sound of a thousan’
kisses. That’s caird-playin’ in the kintra, Mr. North, and where’s the
man amang ye that’ll daur to say that it’s no’ a pleasant pastime o’ a
winter nicht, when the snaw is a cumin’ doon the hun, or the speat’s
roarin’ amang the mirk mountains?”
“Give us that in English,” said the forward young man, as he left the
room.
* * * * *
There was a door between our bedroom and that adjoining. Upon taking
possession, we tried it; it appeared fast, but the key was not on our
side and the bolt was _hors du combat_.
My wife had retired for the night, and was rapidly approaching that
moment when the rustling silk, the embroidered skirt, the pannier, the
braids, and elaborately arranged coiffure are exchanged for a _robe de
nuit_ of virgin white and a bob of hair on the head, _simplex
numditiis_. Suddenly the door between the two rooms creaked, squeaked,
and opened, and a creature clad in man’s attire protruded his head.
When, however, he saw that the room was occupied he drew back, laughing
to himself as he locked the door.
On my arrival I found the partner of my joys and sorrows perched upon
the bed like Patience on a monument. Immediately chambermaids,
housemaids, and waiters were summoned, and informed that the key must
be taken out of that dreadful door and placed in the office. After his
voyage of discovery, Paul Pry had gone out, so a waiter entered the
room, took the key, and having hampered the lock of P. P.’s door, he
passed out _via_ our room, my wife gracefully retiring into a closet.
When we were quietly reclining on our downy couch we heard our neighbor
making fruitless efforts to regain his room; in vain he summoned the
chambermaid with her keys; in vain came the waiter with his. P. P. had
to pass the night in another apartment, minus his toilet appointments.
“What would I have done,” asked my wife, “if that horrid wretch had come
into the room?”
“Oh, we could have brought an action of trespass against him;[176] for
the possession we have of this room is quite sufficient to entitle us to
recover against a wrong-doer, although we could not maintain such an
action against the hotel-keeper if he should enter for any proper
purpose.”[177]
“But that would not be a very great satisfaction,” said my wife.
“Well, it is the best we could do, for we could not summon to our aid
the good spirits that interfered on behalf of the Lady Godiva to punish
Peeping Tom.”
“But what if he had assaulted me?” she queried.
“Well, I am afraid I would have had to settle the matter with him, for
an innkeeper is not bound to keep safe the bodies of his guests,[178]
but merely their baggage; that is, such articles of necessary or
personal convenience as are usually carried by travelers for their own
use, the facts and circumstances of each case deciding what these
articles may be.[179] Hush! What is that?”
“A mosquito.”
“Well, I must kill it.”
“Never mind,” urged my wife. “Spare the little creature.”
“I can’t stand their bites any more than my betters, and others who have
gone before. When they pierced the boots of the Father of his Country in
the New Jersey marshes, that exemplary individual indulged in bad
language; they drove back the army of Julian the Apostate, or apostle,
as Lord Kenyon called him; they compelled Sapor, the Persian, to raise
the siege of Nisibes, stinging his elephants and camels into madness;
they render some parts of the banks of the Po uninhabitable, and cause
people in some countries to sleep in pits with nothing but their heads
above ground. How, then, can you expect me to lie quietly here and wait
to have their horrid war-whoop sung in mine ears, as they dance in giddy
mazes from side to side, ere they plunge their sharp stilettos into my
shrinking flesh?”
Forthwith I arose, lit the gas, and wandered round and round the room, a
white-stoled acolyte of science, with a towel in my hand, ready to take
the life of any member of the extensive family of _Culex Pipiens_. Long
was the search after the tireless musician, blowing his own trumpet as
enthusiastically as any other musical genius. My wife mocked me as I
danced about, flipping to the right and to the left; but at last Mrs.
Mosquito, swanlike, sang a song, which (to me, at least) was her
sweetest, as it was her last.