ble for a theft of bags of grain in a loaded sleigh of a guest, which had been placed for the night in a wagon or outhouse appurtenant to the inn, with fastened doors. The sleigh was deemed infra hospitium, and the inkeeper liable, without any negligence being proved against him.

Under so extended a responsibility, it becomes very 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 no one else, has been held not to be a public inn. (a) 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. (b) In Thompson v. Lacy, (c) 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 *596 the judges in that case, is a house, the owner of which holds out that he will receive all travellers and sojourners who

(a) 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.

(c) 3 B. & Ald. 283.

are willing to pay a price adequate to the sort of entertainment provided, and who come in a situation in which they are fit to be received. (a) 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) 2 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 stølen from that room. (c) 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. (d) 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 per

(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.

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

469.

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

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

1 To charge one as an innkeeper, it is "sufficient to prove that all who came were received as guests, without any previous agreement as to the length of their stay or the terms of their entertainment. A public house of entertainment for all who choose to visit it, is the true definition of an inn." Oakley, C. J., in Wintermute v. Clark, 5 Sandf.

S. C. 242.

2 For the distinction of the liability of an innkeeper to a boarder from the liability which he is under to a guest, see Manning v. Wells, 9 Humph. R. 746. Chamberlain v. Masterson, 26 Ala. 371. A traveller stopping at an inn does not cease to be a guest and become a boarder by an agreement to pay by the week. Berkshire Woollen Co. v. Proctor, 7 Cush. 417. As to the liability of boarding-house keepers, see Dansey v. Richardson, 25 Eng. L. & Eq. 76.

sons 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 597 no person who has not at the time a license to sell strong or spirituous liquors or wines, to be drunk in his house, shall put up any sign indicating that he keeps a tavern. (a)

*

(a) N. Y. Revised Statutes, vol. i. pp. 678-682. Ibid. 661, sec. 6. By the statute, every keeper of a public inn or tavern, except in the city of New York, is required to keep at least two spare beds for guests, well provided, and good and sufficient stabling, grain, hay, or pasturage, for horses and other cattle belonging to travellers. Every innholder or tavern-keeper, who is licensed as such, is also required to put and keep up a proper sign on or adjacent to the front of his house; and every person who erects or keeps up such a sign without a license to sell spirituous liquors by retail, or sells them by retail to be drunk in his house, outhouse, yard, or garden, without entering into recognizance as an innkeeper, is subjected to a penalty for every offence. If the innkeeper has not put up a sign, yet if he keeps a tavern, he is still responsible at common law as an innkeeper. Calye's case, 8 Co. 32. At common law any person might keep a tavern and sell vinous liquors there without control; but under the English statute of 5 & 6 Edw. IV., a license to keep a tavern would not authorize the retail of liquors without another license. Stevens v. Duckworth, Hard. Rep. 338. The better opinion would seem to be, that under the New York statute there may lawfully be a public inn without an excise license, though without a license no person can put up a sign indicating that he keeps a tavern; and if he has the excise license to retail in small quantities liquors to be drunk in his house, he must be bound also to keep an inn for the accommodation of travellers, in the common-law sense of the term. The excise license may perhaps be regarded as a criterion to determine between the common-law inn, and the statute inn and tavern combined. In the case of the Overseers of Crown Point v. Warner, 3 Hill, 150, occurring in 1842, since the preceding observations were made, it was adjudged that the words inn and tavern, and innholder and tavern-keeper, were used in the N. Y. R. S. vol. i. p. 676, synonymously, and that the right to keep an inn without an excise license is common to all persons. But if a license to sell spirituous liquors be added, the inn then becomes a statute franchise, and the statute regulations prescribing rules of conduct to inn and tavernkeepers, apply only to such licensed houses. By a statute of New York of 12th April, 1843, ch. 97, licenses to keep taverns may now be granted, without including a license to sell spirituous liquors or wine. So in Alabama, no person can keep a public inn without a license, though spirituous liquors be not retailed. The State v. Cloud, 6 Ala. R. N. S. 628. The act of Michigan of 1833, is essentially the same, for no person, unless licensed to keep a tavern, can sell spirituous liquors by retail under a quart. In Pennsylvania, a license to keep a tavern or inn, would seem, ipso facto, to imply a license to retail vinous and spirituous liquors, though licenses to sell liquors may be granted to persons combining other business with the same. Purdon's Dig. 502–507. By the law of Ohio, no person is permitted to keep a tavern without a license from the court of common pleas of the county. Statutes of Ohio, 1831. By the act of Kentucky of 1834, no tavern within any town or city, or within one half mile thereof, can be kept without license, even though spirituous liquors be not retailed. So, in Ver mont, no person can keep an inn without a license from the county court; and a

(4.) The locatio operis mercium vehendarum, is a contract relating to the carriage of goods for hire; and this is by far the

license to keep a victualling-house will not authorize a person to keep a house for public entertainment; and a person may keep an inn without selling spirits or wine. State v. Stone, 6 Vermont Rep. 295. In Connecticut, a distinction is made by statute between taverns and victualling-houses. Both kinds require a license, but tavernkeepers only have a right to retail spirituous liquors. The victualling-houses are called, also, houses of refreshment. Statutes of Connecticut, 1838, pp. 592-595. In Massachusetts, there seems to be three descriptions of persons in purview of the Revised Statutes, c. 47; (1.) A common innholder, who sells liquors and provides accomdation for man and beast; (2.) A common victualler, who sells liquors and food only. Both of these must be licensed; (3.) A common grog-shop, or drinking-house keeper, who is not entitled to a license. Commonwealth v. Pearson, 3 Metc. 449. In North and South Carolina, a person is indictable for retailing spirituous liquors without license; and in the former state, public inns are called, in the statute, ordinaries. 1 N. C. R. S. p. 445. State v. Morrison, 3 Dev. N. C. Rep. 299. The State v. Mooty, 3 Hill's S. C. Rep. 187. Tavern-keepers and innholders are generally used synonymously; and as the local laws in all the states prohibit persons from retailing spirituous liquors, and in Alabama, by act of 1807, even beer or cider, without a license, that license ordinarily becomes essential to the character, and, in some instances, to the lawfulness of a public inn or tavern. In Tennessee, the prohibition to retail spirituous liquors is held not to include wine which is procured by fermentation, and only those liquors which are procured by distillation. Caswell v. The State, 2 Humphrey, 402. Since the growth and diffusion of temperance societies, the restrictions by law on the retail of spirituous liquors have greatly increased. In Massachusetts, by statute, in 1838, the retail of spirituous liquors under fifteen gallons was wholly prohibited. By the Revised Statutes of Massachusetts of 1836, ch. 47, no person can be an innholder or seller of spirituous liquor, to be used about his house or other building, without license. Licenses to innkeepers and retailers may be granted for each town and city, and licenses may be confined to the sale of fermented liquors, such as wine, beer, ale, and cider, and excluding the sale of brandy, rum, or other spirituous liquors. The interdiction in Mississippi was limited to one gallon, and in most of the states the regulations on the subject have become very strict. The laws of the Old Plymouth Colony (edit. 1836, by W. Brigham, p. 287) declared, that no person licensed to keep a public house of entertainment should be without good beer.

Innkeepers are liable to an action if they refuse to receive a guest without just cause. See infra, p. 634. The innkeeper is even indictable for the refusal, if he has room in his house, and the guest behaves properly. Rex v. Ivens, 7 Carr. & Payne, 213. In the case of The State v. Chamblyss, 1 Cheve's S. C. Law Rep. 220, the subject of inns and taverns was elaborately discussed. It was held by a majority of the court, that a license to keep a tavern included, also, the privilege of retailing spirituous liquors, in small quantities, to travellers and guests. The minority of the court held, that the tavern license and the license to retail were two distinct things, and that the former license did not necessarily include the other. It would appear, from the learned investigations in that case, that a tavern was originally a place where the keeper sold wine alone, but, in process of time, the seller of wine (including other strong drinks) began to supply food and lodging for wayfaring men, and the term

most important, extensive, and useful of all the various contracts that belong to the head of bailment. The carrier for hire in a particular case, and not exercising the business of a common carrier, is only answerable for ordinary neglect, unless he, by express contract, assumes the risk of a common carrier. (a) But if he be a COMMON CARRIER, he is in the nature of an insurer, and is answerable for accidents and thefts, and even for a loss by robbery. He is answerable for all losses which do not fall within the excepted cases of the act of God (meaning inevitable accident, without the intervention of man) and public enemies. This has been the settled law of England for ages;

tavern became to be synonymous with that of inn, as far back as the reign of Elizabeth. The preamble to the statute of 1 James I. c. 9, declared, that "the ancient, true, and principal use of inns, alehouses, and victualling-houses, was for the receipt, relief, and lodging of wayfaring people, travelling from place to place, and not meant for entertainment and harboring of lewd and idle people," &c. The statutes of 2 James I. c. 7, 4 James I. c. 5, and 1 Chas. I. c. 4, show, also, the primitive use of the inn, now commonly called a tavern. In the statutes of South Carolina, both under the colony and under the state, inns and taverns have been used promiscuously for places where spirituous liquors were sold under a license. But there were licensed retailers of spirituous liquors who do not keep a tavern, and there were licensed retailers who keep a tavern and retail spirituous liquors as part of the entertainment, together with food, lodgings, &c., for travellers and wayfaring people. The mere business of entertaining travellers and others with food, lodging, &c., does not require an excise license. They are not tavern-keepers within the purview of the excise laws, but innkeepers, in the primitive sense, and they are entitled to some of the privileges, and subject to some of the liabilities of keepers of taverns. I presume they are responsible for the goods of their guests to the extent of innkeepers and tavernkeepers at common law. The regulations of some late English statutes (11 Geo. IV. and 1 Wm. IV. c. 64, and 4 & 5 Wm. IV. c. 85) are very strict, even as to beerhouses. No person licensed to sell beer by retail shall have or keep his house open for the sale thereof, nor retail the same, or suffer it to be drank in or at his house before 4 A. M. and after 10 P. M.; nor at any time between 10 A. M. and 1 P. M.; nor between the hours of 3 and 5 o'clock P. M., on Sundays.

(a) Robinson v. Dunmore, 2 Bos. & Pull. 416. Brind v. Dale, 8 Carr. & Payne,

1 The act of God must be both the proximate and the sole cause of the loss to protect the carrier. New Brunswick S. & C. T. Co. v. Tiers, 4 Zabr. 697. See however Morrison v. Davis, 20 Penn. 171. As to the meaning of inevitable accident, under different circumstances, see Fish v. Chapman, 2 Kelly's (Geo.) R. 349, 356. Europa, (U. S. Law Mag. Dec. 1850, p. 497,) before Dr. Lushington. King v. Shepherd, 3 Story's R. 349. Friend v. Woods, 6 Gratt. 189.

A loss occurring from collision, by the negligence of either party, renders the carrier liable. Mershon v. Hobensack, 3 Zabr. 580.

When the carrier stipulates to deliver within a limited period, the obligation is said to VOL. II.

68