But it is a good defence that the loss was caused by the servant of the owner, (n) or by one who came with him as his companion, (o) or by the negligence of the owner; (p)1 or that

(ln) Adams v. Clem, 41 6a. 65.

(m) Cross v. Andrews, Cro. E. 622; Borradaile v. Hunter, 5 Man. & G. 639.

(n) Calye's case, 8 Rep. 32.

(o) Id.

(p) Burgess v. Clements, 4 M. & SeL 806; Armistead v. Wilde, 6 E. L. & E. 340; s. c. 17 Q. B. 261. This last was an action on the case for the loss of money, which the plaintiff brought with him to the defendant's inn. On the trial, it appeared that the plaintiff was a commercial traveller, who had frequented the defendant's inn for twenty years. On the evening of the night in which the money was stolen from the plaintiff's driving box, he had opened the box and counted over the bank-notes in the presence of many persons in the commercial room, as he had also done on several days before, and after replacing them in the box he left it in that room all night, as he had been accustomed to do; it was the custom of travellers to leave their driving boxes in the commercial room during the night. The box was so insecurely fastened that it might be opened without a key, by pushing back the lock. The learned judge, in summing up to the jury, said, that by the custom of England an innkeeper was bound to keep the goods of his guests safely; but that a guest might, by gross negligence, relieve the innkeeper from his liability; and that if they thought that a prudent man would have taken the box with him to his bedroom, or given it into the express custody of the defendant, they might find a verdict for the defendant; and left it as a question for them whether the plaintiff was guilty of gross negligence in the traveller's room, or whether they were satisfied on the evidence that the plaintiff had acted with ordinary caution. The jury found a verdict for the defendant. And a rule having been obtained for a new trial, on the ground of misdirection, Lord Campbell, C. J., said: "I am of opinion that the rule should be discharged. If the judge had intimated that it was the duty of the plaintiff to withdraw the box from the commercial room, and carry it with him into his bed-chamber, and that, not having done so, he had lost his claim upon the defendant, that would have been a misdirection. But there is no misdirection in what he has reported to us. It must be taken that he left the question to the jury under all the circumstances of the case; and it is not possible to say, as a matter of law, that a traveller might not be guilty of negligence, under some circumstances, in leaving a box containing money in the commercial room; and in this case I think that there was strong evidence from which the jury were justified in finding that the plaintiff was guilty of gross negligence. Indeed, it is questionable whether the direction was not too favorable for the plaintiff, because it is doubtful whether, in order to relieve the innkeeper from his liability, there must be crassa negligentia in the guest." for a guest's horses, wagons, etc., destroyed by a fire not caused by the innkeeper's negligence, which consumed the hotel barn and contents.

1 A hotel-keeper is not liable for a loss occasioned by the personal negligence of the guest himself. Elcox v. Hill, 98 U. S. 218.

•the owner retained personally and exclusively the cus tody of his goods. (q) It is not enough for this, however, that he exercised some choice as to the room where they should be * placed, (r) or that the key of the room was de livered to him. (s) It was long ago held, that the owner may still recover, even if he does not use the key, but leaves the door unlocked. (t)1 But an innkeeper may require of his guest to place his goods in a particular place, and under lock and key, or he will not be answerable. And if these precautions are reasonable, and the guest neglects them, and exposes the goods to a greater hazard, the innkeeper is exonerated. (u)

(q) This was decided in the case of Farnworth v. Packwood, 1 Stark. 240. It appeared in this case that Kirton came to the house of the defendant, an innkeeper, and in the course of three or four days afterwards applied to the defendant for a private room, for the purpose of depositing goods there, and exposing them for sale; and the defendant having shown him a small room, which he approved of, Kirton the next day took possession of it, and the key was delivered to him, and was kept by him exclusively for several days; but, upon the defendant's wife requesting to place some parcels in the same room, Kirton permitted her to use the key, and he had not the exclusive use of it, and other parcels were deposited in the same room. Kirton boarded and lodged in the house for almost a fortnight, and from time to time introduced his customers into the room. A short time before he left the house he discovered that a package was missing, which made the subject of the present demand. Le Blanc, J., in summing up to the jury, said: "If a guest take upon himself the exclusive charge of the goods which he brings into the house of an innkeeper, he cannot afterwards charge the innkeeper with the loss. The only question in this case is, whether Kirton did not take upon himself the exclusive charge of his goods, to the exclusion of every other person? A landlord is not bound to furnish a shop to every guest who comes into his house; and if a guest takes exclusive possession of a room, which he uses as a warehouse or shop, he discharges the landlord from his common-law liability. The question, therefore, for your consideration is, whether, when the goods were lost, they were exclusively in Kirton's possession? It is admitted that during part of the time Kirton kept the key; if afterwards the defendant took the key from him, the goods then ceased to be under his exclusive control, and the defendant became liable for their safe custody. The only question is whether, at the time of the loss, the goods were in the exclusive possession of Kirton? "The jury found a verdict for the defendant. See also Burgess p. Clements, 4 M. & Sel. 906. The same rule holds, where the guest, instead of reposing himself upon the protection of the innkeeper, intrusts his property to some one else in the house. Sneider v. Geiss, 1 Yeates, 84.