1 Markham v. Brown, 8 N. H. 523.

2 Thompson v. Lacy, 3 B. & Al. 283. See Smith v. Scott, 9 Bing. 14; Taylor v. Monnot, 4 Duer, 116.

3 Wintermute v. Clark, 5 Sandf. 247. An innkeeper is no less such, merely because his guests take their meals at his refectory kept on the same premises, paying for each article called for. Krohn v. Sweeney, 2 Daly, 200 (1867).

4 See Johnson v. Midland Railway Co., 4 Exch. 367, 371, where Mr. Baron Parke, in reply to the argument of counsel that since the defendants had chosen to be common carriers, they could no more select the goods they would carry than an innkeeper could his guests, said: "A man may keep an inn for those persons only who come in their own carriages."

5 Grinnell v. Cook, 3 Hill, 489; Yorke v. Grenaugh, 2 Ld. Raym. 866; s. c, under the name of York v. Grindstone, 1 Salk. 388; Gelley v. Clerk, Cro. Jac. 188; Peet v. McGraw, 25 Wend. 653.

1 Ibid.

2 Mason v. Thompson, 9 Pick. 280. See Berkshire Woollen Co. v. Proctor, 7 Cush. 425. Mason v. Thompson, 9 Pick. 280, on this point, was denied to be law in Grinnell v. Cook, 3 Hill, 485, and in Ingallsbee v. Wood, 33 N. Y. 577 (1865). But see McDaniels v. Robinson, 26 Vt. 316.

3 Grinnell v. Cook, 3 Hill, 489. See also Smith v. Dearlove, 6 C. B. 132; Thickstun v. Howard, 8 Blackf. 535; Wintermute v. Clark, 5 Sandf. 242; McDonald v. Edgerton, 5 Barb. 560. But see the very elaborate and able opinion of Chief Justice Redfield of Vermont, in support of Mason v. Thompson, in the late case of McDaniels v. Robinson, 26 Vt. 316; and Hawley v. Smith, 25 Wend. 642, where an innkeeper was held not to be liable in his character as innkeeper, where sheep put to pasture under the direction of the guest were injured by eating poisonous plants.

4 See the case of Mason v. Thompson, 9 Pick. 280. It this case, a traveller, without ever going to an inn, sent her horse and harness there to be kept, while she was on a visit to a friend. After four days, on sending for them, the harness was missing; and in an action against the innkeeper, he was held to have all the liabilities of an innkeeper. The court say, in their judgment: "It was urged that neither the plaintiffs nor their servant were the defendant's guests, as neither of them had diet or lodging at his inn. But it is clearly settled that to constitute a guest, in legal contemplation, it is not essential that he should be a lodger or have any refreshment at the inn. If he leaves his horse there, the innkeeper is chargeable on account of the benefit he is to receive for the keeping of the horse. Lord Holt held a different opinion, in the case of Yorke v. Grenaugh, 2 Ld. Raym. 866; but the opinion of the majority of the court has ever since been considered as well-settled law." It is very true that the innkeeper is chargeable as bailee for hire, but why chargeable as innkeeper ? If a horse be sent by a traveller to a livery-stable, there to be kept, is it to be understood that if the owner happen also to keep an inn with which the stable is connected, he assumes the extraordinary liabilities of an innkeeper; while, if the stable do not happen as a guest, and take his room and leave his luggage there, and then go to a friend's house to stay, and do not return to the to be connected with an inn and owned by an innkeeper, the stable-keeper is only a bailee for hire, the apparent contract being in both cases alike? By far the better doctrine seems to have been held in Grinnell v. Cook, 3 Hill, 489, where an action on the case was brought by Grinnell, an innkeeper, against the defendant Cook, for taking and selling on execution certain horses belonging to a third party named Tyler, which were kept in G.'s stable, without paying the bill for their keeping. The court say, in delivering their judgment in this case: "The innkeeper is bound to receive and entertain travellers, and is answerable for the goods of the guest, although they may be stolen or otherwise lost without any fault on his part. Like a common carrier, he is an insurer of the property, and nothing but the act of God or public enemies will excuse a loss. On account of this extraordinary liability, the law gives the innkeeper a lien on the goods of the guest for the satisfaction of his reasonable charges. It was once held that he might detain the person of the guest, but that doctrine is now exploded, and the lien is confined to the goods. The inquiry then is, whether the plaintiff received and kept the horses as an innkeeper? In other words, was he bound to receive and take care of them, and would he have been answerable for the loss if the horses had been stolen without any negligence on his part ? The lien and the liability must stand or fall together. Innkeepers cannot claim the one with any just expectation of escaping the other.

"Tyler, who owned the property, was not a traveller, nor was he in any sense a guest in the plaintiff's house; and I think it quite clear that the plaintiff was not bound to receive and take care of the horses. We are referred to the case of Peet v. McGraw, 25 Wend. 653, to prove that it is not necessary to the lien or the liability of the innkeeper, that the owner should be a guest. The case decides no such thing. It turned on the construction of the plea, and we thought the words of the plea equivalent to an averment that the owner was a guest. A single expression of the Chief Justice, which was not necessary to the decision of the cause, is separated from the context, and pressed into the plaintiff's service. But neither the Chief Justice nor any other member of the court intended to say, that either the lien or the liability could exist where the owner of the goods was not either actually or constructively the guest of the innkeeper. There must be such a relation; but it is not necessary to its existence that the owner of the goods should be actually infra hospitium at the time the loss happened, or the lien accrued. For example, if a traveller leave his horse at the inn, and then go out to dine or lodge with a friend, he does not thereby cease to be a guest, and the rights and liabilities of the parties remain the same as though the traveller had not left the inn. And if the owner leave the inn and go to another town, intending to be absent two or three days, it seems that the same rule holds good, so far as relates to property for the care and keeping of which the host is to receive a compensation; but it is otherwise in relation to inanimate property, from which the host derives no advantage, inn, but still continue to pay for his room, he would remain a guest, so that the innkeeper would be liable for the loss of his and if that be stolen during such absence of the guest, the innkeeper will not be answerable. Gelley v. Clerk, Cro. Jac. 188; 8. c. Noy, 126; Yorke v. Grenaugh, 2 Ld. Raym. 866; 8. c. 1 Salk. 388, by the name of York v. Grindstone; Bac. Abr. Inns and Innkeepers, C. 5, 7th Lond. ed. The case of Mason v. Thompson, 9 Pick. 280, goes still further. There the traveller never went to the inn, but stopped as a visitor with a friend, and sent her horse and carriage to the inn. After four days she sent for the property, and found that a part of it had been stolen; but still the innkeeper was held liable. This case rests on the dictum of Powell and Gould, JJ., against the opinion of Lord Holt, in Yorke v. Grenaugh, 2 Ld. Raym. 866, that, 'if a man set his horse at an inn, though he lodge in another place, that makes him a guest, and the innkeeper is obliged to receive him [the horse]; for the innkeeper gains by the horse, and therefore makes the owner a guest though he was absent.' But the decision turned on the construction of the avowry, and the proper mode of pleading. The two judges held, 'that since the matter shown makes it appear that he was a guest, it is enough, though it is not expressly averred that he was a guest.' But Holt said: ' This matter is but evidence of it, that he was a guest, and is not traversable; but guest or not, is the most material part of the avowry, and traversable; and therefore there ought to be a positive averment that he was a guest.' This is not all. The two judges gave as the authority for their dictum the case of Robinson v. Walter, Poph. 127. The point there decided was, that the innkeeper had a lien on the plaintiff's horse, although the animal was brought to the inn by one who took him wrongfully. And that is good law at this day, if the innkeeper have no notice of the wrong, and act honestly. Johnson v. Hill, 3 Stark. 172. He is bound to receive the guest, and cannot stop to inquire whether he is the right owner of the property he brings. But not one word was said in the case of Robinson v. Walter, in support of the position that the owner or person who brings the property need not be a guest. The subject was not even mentioned, so far as appears by the report in Popham. But by the report of the same case in 3 Bulst. 269, it appears affirmatively that the wrong-doer who brought the horse to the inn actually became a guest, and afterwards went away, leaving the horse behind. Now, when a man, after he has actually become a guest and delivered his property to the host, goes away for a brief period, leaving his goods behind him, the law is chargeable with no absurdity in considering him as still continuing a guest, so far as relates to the rights and liabilities of the parties. And if one send his horse or his trunk in advance to the inn, saying he will soon be there himself, it may be that he should be deemed a guest from the time the property is taken in charge by the host. But when, as in Mason v. Thompson, the owner has never been at the inn, and never intends to go there as a guest, it seems to me little short of a downright absurdity to say, that in legal contemplation he is a guest. If our lawgivers had intended that the innkeeper should be answerluggage, or for money left by him in the hands of the innkeeper.1 able as such for every thing he received in charge, guest or no guest, they would have said so. They would not have taken the roundabout mode of saying that he must answer for the goods of the guest, and that every one is a guest who has goods in his hands. Now, in this case, Tyler, who owned the horse, never was the plaintiff's guest. Nor was he a traveller or transient person. He was the plaintiff's neighbor. In this respect the case differs from Mason v. Thompson, though I should feel no disposition to follow that decision, if this difference did not exist. I think the extraordinary liability of the innkeeper does not attach until he actually has a guest, and without such liability the innkeeper, as such, has no lien on the goods." See also Smith v. Dearlove, 6 C. B. 132; Berkshire Woollen Co. v. Proctor, 7 Cush. 426; Thickstun v. Howard, 8 Blackf. 535; Washburn v. Jones, 14 Barb. 193.