that if a guest came to an inn, and directed that his horse be put to pasture, and the horse was stolen, the innkeeper was not responsible in his character of innkeeper, for the loss of the horse. However, it was agreed in that case, that if the owner had not directed that the horse be put to pasture, and the innkeeper had done it of his own accord, he would be responsible.

Perhaps this rule might admit of some limitations; for if the putting the traveller's horse to pasture in the summer season, or leaving the carriage in an open shed in the street, be the usual custom, as it is in many parts of *this country, the consent or direction of 593* the owner to that effect might be fairly presumed.a

It was laid down in the same case in Coke, that the innkeeper was bound absolutely to keep safe the goods of his guests deposited within the inn, and whether the guest acquainted the innkeeper that the goods were there or did not; and that he would in every event be bound to pay for the goods if stolen, unless they were stolen by a servant or companion of the guest. The responsibility of the innkeeper extends to all his servants and domestics, and to all the moveable goods and chattels and moneys of his guest which are placed within the inn, (infra hospitium ;) but it does not extend to trespasses committed upon the person of the guest, nor does it extend to loss occasioned by inevitable casualty, or by superior force, as robbery.b It is no excuse for the innkee

Story's Com. 312. If the traveller directs his horse to be put into the stable, and says nothing about his gig, and it be left in the highway with other carriages, and is stolen, the innkeeper has been held liable, under the implied promise to take the gig infra hospitium. Jones v. Tyler, 3 Nev, ille & Manning's Rep. 576. 1 Adolph. & Ellis, 522, S. C. This was carrying the protection of the inn sufficiently far.

b Calye's case, ub. sup. Morse v. Slue, 1 Vent. Rep. 190. 238. Kent v. Shukard, 2 B. & Adol. 803. Story's Com. 308, 309. But from the case of Mason v. Thompson, and from the dictum of Bailey, J., in Richmond v. Smith, 8 B. & Cress. 9, it would seem that innkeepers were responsible like common carriers for robbery and burglary. Story on Bail

per, that he was, at the time the goods of his guest were lost, sick or insane, for he is bound to provide careful servants. In Bennet v. Mellor,b the responsibility of innkeepers was laid down with great strictness, and even with severity. The plaintiff's servant came to an inn to deposit some goods for a week. The proposal was rejected, and the servant sat down in the inn as a guest, with the goods placed behind him, and very shortly thereafter they were stolen. It was held, that the innkeeper was liable for the goods; for the servant was entitled to protection for his goods during the time he continued in the inn as a guest. It was not necessary that the goods should have been in the special keeping of the innkeeper, in order to make him liable; if they be *594 in the inn, that is sufficient to charge him. It is not necessary to prove negligence in the innkeeper; for it is his duty to provide honest servants, according to the confidence reposed in him by the public; and he ought to answer civilly for their acts, even if they should rob the guests who sleep under his roof. An innkeeper, like a common carrier, is an insurer of the goods of his guest, and he can only limit his liability by express agreement or notice.d Rigourous as this law may seem and hard as it may actually be in some instances, it is,

ments, 309, 2d edit. If a horse, chaise and harness be delivered to an innkeeper, the payment for the horse includes a compensation for keeping the chaise and harness, and he is liable as an innkeeper for the loss of them. Mason v. Thompson, 9 Pick. Rep. 280. This last case was questioned and overruled in Grinnell v. Cook, 3 Hill's Rep. 485, so far as it went to hold the innkeeper in that character responsible for the goods of a person who was not at the inn, and did not intend to go there as a guest, and therefore was no guest.

■ Calye's case, ub. sup. Cross v. Andrews, Cro. Eliz. 622.

5 Term Rep. 273.

If the goods of a guest be deposited in a public inn and be lost, or injured, the prima facie presumption is, that the loss was occasioned by the loss or negligence of the innkeeper or his servants, but the presumption may be rebutted. Dawson v. Chauncey, 5 Adol. & Ellis, N. S. 164. Richmond v. Smith, 8 Barnw. & Cress. 9.

as Sir William Jones observes, founded on the principle of public utility, to which all private considerations ought to yield. Travellers, who must be numerous in a rich and commercial country, are obliged to rely almost implicitly on the good faith of innkeepers; and it would be almost impossible for them, in any given case, to make out proof of fraud or negligence in the landlord. The Roman prætor held innkeepers responsible for the goods of their guests, on the same principle of public utility. It was necessary, says Ulpian, in commenting on the edict of the prætor, to confide largely in the honesty of such men; and if they were not held very strictly to their duty, they might yield to the temptation to commit a breach of trust. They were bound to answer for all losses and damages happening even without their default unless they were fatal losses, occurring from vis major or irresistible force.a

The responsibility of innkeepers, to the full extent of the English law, has been recognized in the courts of justice in this country. Thus, in Quinton v. Courtney, the innkeeper was held liable for money stolen out of the saddle bags of the guest, which he had delivered to the servant without informing him, or his master, that there was money in them. And in Clute v. Wiggins,d the innkeeper was held responsible for a theft of 595* bags of grain in a loaded sleigh of a guest, which had been placed for the night in a wagon or out-house appurtenant to the inn, with fastened doors. The sleigh was deemed infra hospitium, and the innkeeper liable without any negligence being proved against him.

Under so extended a responsibility, it becomes very

d 14 Johns. Rep. 175. Newson v. Axon, 1 M‹Cord's Rep. 509, and Piper v. Manny, 21 Wendell, 282, contain a recognition of the same principle.

important that the nature of inns and guests and the persons to whom the description applies, should be precisely understood.

Common inns were declared in Calye's case, to be instituted for passengers, and wayfaring men, and that a neighbor who was no traveller, and lodged at the inn as a friend, at the request of the innkeeper, was not a guest whose goods would be under special protection. A house merely for lodging strangers for a season, who came to a watering place, and furnishing hay, and stable room for their horses, and selling beer to them and to none else has been held not to be a public inn. It must be a house kept open publicly for the lodging and entertainment of travellers in general, for a reasonable compensation. If a person lets lodgings only, and upon a previous contract with every person who comes, and does not afford entertainment, for the public at large indiscriminately, it is not a common inn. In Thompson v. Lacy, this subject was fully discussed; and it was decided, that a house of public entertainment in London, where provisions and beds were furnished for travellers, and all others capable of paying a suitable compensation for the same, was a public inn. The owner was subject to all the liabilities of an innkeeper, even though he kept no stables and was not frequented by stage coaches and wagons from the country; and even though the guest did not appear to have been a traveller, but to have previously resided in furnished lodgings in the city. A lodging house keeper was one that made a contract with every *person that came; but an inn, said one of the judges in that case, is a house, the owner of which holds out that he will receive all travellers and sojourners who are willing to pay a price ade

*596

■ Parkhurst v. Foster, 1 Salk. Rep. 387. Carth. 417, S. C.

b Entertaining strangers occasionally for compensation, does not make a person an innkeeper. The State v. Mathews, 2 Dev. & Battle, 424. 3 B. & Ald. 283.

quate to the sort of entertainment provided, and who come in a situation in which they are fit to be received. But the keeper of a mere coffee-house, or private boarding or lodging house, is not an innkeeper in the sense of the law.b If a guest applies for a room in an inn, for a purpose of business distinct from his accommodation as a guest, the particular responsibility does not extend to goods lost or stolen from that room. Though a landlord cannot exonerate himself by merely handing over a key to his guest, yet, if the guest takes the key, it will be a question of fact whether he took it animo custodiendi, so as to exempt the landlord.

In New-York and throughout the Union, inns and taverns are under statute regulations, and their definition and character are contained in the statute. Taverns in New-York are to be licensed by the commissioners of excise; and the license is necessary except in cases of necessity and it is deemed a personal trust and cannot be assigned. There are licenses merely to sell strong and spirituous liquors under five gallons granted to merchants and grocers, but they cannot be sold to be drunk in the house or store of the seller; and there are other licenses to retail strong and spirituous liquors granted to persons who keep an inn or tavern. Those persons so licensed are the ordinary innkeepers, within the contemplation of the statute law of New-York; for the statute declares *that no person who has not at the *597 time a license to sell strong or spirituous liqnors, or

a Parker v. Flint, 12 Mod. 254, S. P. A guest is not entitled to select a particular room or a bedroom for the purpose of sitting up all night, so long as the innkeeper offers to furnish him with a proper room for that purpose. Fell v. Knight, 8 Meeson & Wels. 269.

Doe v. Laming, 4 Campb. N. P. Rep. 77. Wathey v. M'Dougal, 1 Bell's Com. 469.

⚫ Burgess v. Clements, 4 Maule & Selw. 306. Farnworth v. Packwood, 1 Holt's N. P. 209.

a Alger v. Weston, 14 Johns. Rep. 231. Palmer v. Doney, 2 Johns. Cas. 346. Commonwealth v. Bryan, 9 Dana's Rep. 310.