(s) Thus in Albin v. Presby, 8 N. H. 408, where a traveller, after arriving at an inn, placed his loaded wagon under an open shed, near the highway, and made no request to the innkeeper to take the custody of it, and goods were stolen from it in the night; it was held, that the innkeeper was not liable for the loss, notwithstanding it was usual to place loaded teams in that place. And Parker, J., said: " The present case finds, to be sure, that the wagon was put in the place where loaded wagons of guests were usually placed, when they were put under shelter; but they were doubtless usually so placed, with the knowledge and assent of the guests. It is well known that loaded wagons are often left within the limits of the highway, near the inn, and are usually not placed in any building or inclosed yard, unless there is a special request for it. Few inns in the country have suitable accommodations for securing property of this character in such a manner. In the present case, there is not only knowledge and assent, but the plaintiff himself places the wagon in that situ* An innkeeper has a lien on the property of the guest (not on his person), (t)1 for the price of his entertainment; (u) even if he be an infant.(uu) And he has this lien on goods brought to him by a guest, although they belong to another person. (v) He has this lien on a horse, even if it be stolen and the thief brings it to him; (w) but it is said that he cannot sell a horse on which he has a lien, for his keeping, but must proceed in equity. (x) 2 And it is not quite certain, on the authorities, how far this lien of the innkeeper extends.(y) Upon the whole, it seems that he has it on all the goods of the guest which he has received, except only those actually worn by him on his person, and that this lien covers the whole amount due for the entertainment of the guest, his servants, and his horses. (z) 3 ation. He of course could not have expected that it would be removed to another place - he made no request to that effect - and he must have known that the goods could not be secured from thieves in that place, except by a watch. Assuredly he could not have expected they would be guarded by the defendant in that manner; and under such circumstances, ought not to have expected that the defendant was to be responsible for a loss. And as the inns in this country are not generally furnished with accommodations for the protection of the carriages of all guests who may lodge at the Inn, and the custom of permitting them to remain in open yards, where they cannot be protected but by a guard, is so universal and well known, we think it a sound position that the assent of the traveller is to be presumed in such case, unless he make a special request that his carriage should be put in a safe place; and that such open yard is not to be deemed a part of the inn, so as to charge the innkeeper for the loss, unless he neglects, upon request, to put the goods in a place of safety, which he is bound to do, on such request, if he have any accommodations which enable him to comply with it" See Clute v. Wiggins, 14 Johns. 176, cited ante, p. * 154, note (p).

(t) Sunboll v. Alford, 3 M. & W. 248.

(u) Robinson v. Walter, Poph. 127; s. c. 3 Bulst. 200; Johnson v. Hill, 8 Stark. 172; Grinnell v.Cook, 3 Hill (N. Y.), 486.

(uu) Watson v. Cross, 2 Duvall, 147.

(v) Snead v. Watkins, 1 C. B. (n. s.) 267.

(w) Jones v. Thurloe, 8 Mod. 172. And where the guest brings to the inn a carriage not his own, for the standing room of which the innkeeper acquires a claim, for this he has a lien, and may defend against an action of trover brought by the owner of the carriage. Turrill v. Crawley, 18 Q. B. 197.

(x) Fox v. McGregor, 11 Barb. 41.

(y) In Bac. Abr. tit. Inns and lnnkeepers (D), it is said: "If a horse be committed to an innkeeper, it may be detained for the meat of the horse, but not for the meat of the guest; for the chattels are only in the custody of the law for the debt that arises from the thing itself, and not for any other debt due from the same party; for the law is open to all such debts, and doth not admit private persons to make reprisals." See also Rosse v. Bramsteed, 2 Rolle, 488.

(x) See Thompson v. Lacy, 8 B. & Ald. 288; Proctor v. Nicholson, 7 C. ft P. 67. But where an innkeeper receives horses and a carriage to stand at livery, the circumstances of the owner at a subsequent period, taking occasional refreshment at the inn, or sending a friend to

1 As a piano, Threfall v. Borwick, L. R. 7 Q. B. 711; affirmed in L. R. 10 Q. B. 210.

2 An innkeeper waives his lien by selling a chattel in order to reimburse himself; although its retention would be attended with expense. Mulliner v. Florence, 3 Q.B. D. 484.

3 Shelton v. Tutt, 10 Les., 258, held that an innkeeper did not lose his lien for a horse's board by allowing the owner occasionally to ride it, and that such lien was superior to an execution lien placed on the horse while in the owner's possession.

Locatio operis mercium vehendarum. The owner of goods may cause them to be carried by a private carrier gratuitously, or by a private carrier for hire, or by a common carrier. Any one who carries goods for another is a private carrier, unless he comes within the definition of the common carrier, •157 which we • shall give presently. If the private carrier carries them gratuitously, he is a mandatary, and is bound only to slight diligence, and liable only for gross negligence; because this bailment is wholly for the benefit of the bailor.

Such a carrier, like any mandatary, has a special property so far as to maintain an action for a tort to the thing while in his possession; but not, it seems, if it went out of his possession by his own wrongful disregard of the directions of the bailor. (a) And if he incur expenses in relation to it, he would have a lien on the article for them.

The private carrier for hire is bound to ordinary diligence, and liable for ordinary negligence, because this bailment is for the benefit of both bailor and bailee. He is of course not liable for a loss caused by robbery or theft, which could not be avoided by ordinary care, or for one from overpowering force. But he is liable for the negligence of his servants or agents. (b) It is not necessary that the owner should promise to pay the carrier a certain price in order to hold him to his liability; for it is enough if the carrier is entitled to a reasonable compensation. By the civil law, robbery by force was a sufficient defence for the bailee, but if the goods were lost by secret purloining, he was bound to show affirmatively the absence of negligence on his part. It can hardly be said that this distinction is adopted by the common law; although it has been said that the occurrence of such loss was prima facie evidence of negligence; but it may well be doubted whether the common law raises such a presumption. (c) Certainly in most cases, if not in all, the question of ordinary negligence is one of fact, to be determined by the jury on the whole evidence, and not one of law. (d) And if the loss may as well be attributed to the negligence of the owner as of the carrier, the carrier is not liable. We take the distinction between be lodged there at his charge, will not entitle the innkeeper to a lien in respect to any part of his demand. For the right of lien of an innkeeper, say the court, depends upon the fact that the goods came into his possession in his character of innkeeper, as belonging to a guest Smith v. Dearlove, 6 C. B. 132.