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them unless prevented by a fatale damnum, or a loss ty what was termed the decree of fate or order of destiny, such as a loss by lightning or an earthquake, or a sudden inundation that could not have been foreseen, and that no human care or skill could have provided against or avoided; or an irresistible attack by pirates and hostile forces, the enemies of the State. The spirit of this edint has been universally adopted by the jurisprudence of continental Europe, and was introduced at an early day into our common law."

Further on (§ 684) the same author says: "This extended responsibility of the innkeeper, which makes him an insurer of the goods against loss by robbery, does not extend to losses occasioned by an accidental fire, nor to damage or injury to the goods which is the result of accident," citing as authority therefor, Dawson v. Chamney, 5 Q. B. 164, as explained and qualified by Morgan v. Ravey, 30 Law J. Exch. 134.

Story also includes loss by fire as well as by burglary and robbery as fatale damnum. Bailm., § 465. The learned editor of the eighth edition of Story on Bailments - Mr. Edmund H. Bennett - was obviously of the opinion that the views expressed by the author were not supported by the later authorities, for after the paragraph in section 472, reading: 'In a still more recent case it has been laid down in Massachusetts that innkeepers as well as common carriers are regarded as insurers of the property committed to their care, and are bound to make restitution for any injury or loss not caused by the act of God, or the common enemy, or the neglect or fault of the owner of the property - he added this in parentheses, "and this seems to be the doctrine of the modern English, and the better considered of the American cases."

Mr. Chitty in his treatise on Contracts (11th Am. Ed. 675), in giving the circumstances necessary to charge an inukeeper on the custom or common law of the realm, says: "There must be a default on the part of the innkeeper; and such default is to be imputed to him wherever there is loss not arising from the plaintiff's negligence, the act of God or the Queen's enemies."

Mr. Parsons says (2 Cont. 146): "Public policy imposes upon an innkeeper a severe liability. The later and on the whole prevailing authorities make him an insurer of the property committed to his care, against every thing but the act of God, or the public enemy, or the neglect or fraud of the owner of the property. There seems to be some disposition, however, to regard this rule as too severe, and as needing modification. In two recent and well-considered cases a different rule was adopted." These cases were Dawson v. Chamney, 5 Q. B. 164, and Merrett v. Claghorn, 23 Vt. 177.

In 2 Story on Cont., § 909, it is said: "The weight of authority seems to be, notwithstanding some respectable adjudications to the contrary, that an innkeeper is liable at common law for theft or a loss by fire, although the same occur without his negligence, unless the negligence of the guest conduces to the loss; in other words, that his liability is closely analogous to that of a common carrier. And the case of Dawson v. Chamney, so generally relied upon as establishing the doctrine that he is not liable if he can prove that the loss occurred without his negligence, has been repeatedly condemned in the modern English and American cases "-citing Morgan v. Ravey, 6 H. & N. 265; Day v. Bather, 2 H. & C. 14; Mateer v. Brown, 1 Cal. 221; Shaw v. Berry, 31 Me. 478; Hulett v. Swift, 42 Barb. 230; 33 N. Y. 571; Sibley v. Aldrich, 33 N. H. 553; Washburn v. Jones, 14 Barb. 193; Norcross v. Norcross, 53 Me. 163; Gile v. Libbey, 36 Barb. 70; Thickstun v. Howard, 8 Blackf. 535; Houlder v. Soulby, 8 C. B. (N. S.) 254; Houser v. Tully, 62 Penn. St. 93; S. C., 1 Am. Rep. 590. So in Saunders on the Law of Negligence, page 212, it is said:

"By the

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common law of England a common innkeeper is responsible for the loss of the goods or money of a traveler who is his guest whenever the loss is not occasioned by the default of the traveler himself, the act of God or the Queen's enemies."

It appears from the foregoing that most writers on the subject concede the weight of authority to be that an innkeeper is only relieved by the act of God. or of the public enemies, or by the default of the guest. Mr. Hilliard has some expressions to the contrary both in his Law of Torts (Vol. 2, p. 534), and in his treatise on Contracts (Vol. 2, p. 326), but, as in each instance they are preceded by statements that the rule of the common law was as stated by the other writers, they are not entitled to any weight.

Dawson v. Chamney, 5 Q. B. 164, was an action on the case to recover damages for an injury to plaintiff's horse. Defendant was an innkeeper; plaintiff, a guest, delivered his horse to the hostler, who placed him in a stall where there was another horse, and he was injured. The jury was directed to find for the plaintiff if they were of the opinion that the defendant or his servants had been guilty of negligence, but otherwise for the defendant. They found a verdict for the defendant, and the Court of Queen's Bench held the direction proper. In the subsequent case of Morgan v. Ravey, 6 Hur. & N. 265, where property had been stolen from a guest's room, POLLOCK, C. B., said: "It is true that the expression in the forms in tort is, that the right was 'per defectum,' that is, for the default of the innkeeper: but we think the cases show there is default in the innkeeper whenever there is a loss not arising from the plaintiff's negligence, the act of God or the Queen's enemies. The only case which points the other way is that of Dawson v. Chamney, and according to the report of that case in 7 Jurist, 1037, there was no evidence of the manner in which the horse received the injury for which the action was brought; and this may be the explanation of that case, for, though the damage happening to the horse from what occurred in the stable might be evidence of default or neglect, still it was not shown how the damage arose, and it was not even shown that it arose from what occurred in the stable. It might have arisen from something that had occurred long prior to the horse being put into the custody of the innkeeper, that would distinguish this case and reconcile all the cases with the general current of authority."

Merritt v. Claghorn, 23 Vt. 177, was also case to recover the value of two horses which plaintiff, a guest, delivered to defendant, an innkeeper, and which were burned while in defendant's barn without negligence in fact either in defendant or his servants. On these facts the court held that the plaintiff was not entitled to recover. REDFIELD, J., concluded an elaborate examination of the authorities in these words: "It is certain no well-considered case has held the innkeeper liable in circumstances like the present. And no principle of reason or policy, or justice, requires, we think, any such result, and the English law is certainly settled otherwise."

This doctrine of restricted liability has been followed in the same State, in Indiana, Illinois, Kentucky, Louisiana and Texas. McDaniels v. Robinson, 28 Vt. 316; Read v. Amidon, 41 id. 15; Laird v. Eichold, 10 Ind. 212; Dessauer v. Baker, 1 Wils. (Ind.) 429; Metcalf v. Hess, 14 Ill. 129; Johnson v. Richardson, 17 id. 302; Howth v. Franklin, 20 Tex. 798; Kisten v. Hildebrand, 9 B Monr. 72; Woodward v. Morse, 18 La. Ann. 156.

On the other hand the following cases, besides those cited above, are cited as authorities to the doctrine that the innkeeper is only excused by act of God, of the public enemies or of the guest: Sassen v. Clark, 37 Ga. 242: Pinkerton

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v. Woodward, 33 Cal. 557; Cashill v. Wright, 6 El. & Bl. 891; Oppenheim v. White Lion Hotel Co., L. R., 6 C. P. 515; Wilkins v. Earle, 44 N. Y. 172; S. C., 4 Am. Rep. 655; Fuller v. Coats, 18 Ohio St. 343; Jalie v. Cardinal, 35 Wis. 118; McDonald v. Edgerton, 5 Barb. 560; Grinnell v. Cook, 3 Hill, 488; Cheesebrough v. Taylor, 12 Abb. Pr. 227.

It is no doubt true that the expressions on this point in most of these cases are obiter, but they serve to indicate what the courts understand the rule to be. For a learned inquiry into the origin of the terms "inn" and "hotel," and definitions of their meaning, see the opinion of Chief Justice DALY in Cromwell v. Stephens, 2 Daly, 15; also, see Wintermute v. Clark, 5 Sandf. 242; Walling v. Potter, 35 Conn. 183; Pinkerton v. Woodward, 33 Cal. 557.

The payment of a stipulated sum per week does not of itself change the relation of a party from that of a guest to that of lodger. Lima v. Dwinelle (N. Y. Com. Pleas), 7 Alb. L. J. 44; Betts v. Salisbury, 12 id. 337; Jalie v. Cardinal, 85 Wis. 118; Berkshire Woolen Co. v. Proctor, 7 Cush. 417; Hall v. Pike, 100 Mass. 495; Norcross v. Norcross, 53 Me. 163; Pinkerton v. Woodward, 33 Cal. 557.

It is a question of fact to be determined by the jury whether one be a lodger or a guest. Jalie v. Cardinal, 35 Wis. 118.

A person who does not hold himself out as an innkeeper does not become such because he does entertain travelers occasionally. State v. Matthews, 2 Dev. & B. 424; Lyon v. Smith, 1 Morris, 184; Pinkerton v. Woodward, 33 Cal. 557; Southwood v. Myers, 3 Bush, 681. In the latter case the defendant kept a lodging-house for strangers at a watering place which he kept open only during the summer months, not taking all comers, but selecting his guests, and he was held not to be an innkeeper. And "it hath been adjudged that a person living at Epson, and lodging strangers for drinking the waters in the season, and selling them victuals and beer, and to no other persons except such lodgers, is not an innkeeper, so as to have soldiers quartered on him pursuant to the Statute 4 and 5 W. 3, cap. 13, for he is not such an Hospitater against whom an action lies for refusing to entertain a guest." Bac. Ab., tit. Inns. A public house of entertainment for all comers is an inn. Krohn v. Sweeny, 2 Daly, 200; Wintermute v. Clark, 5 Sandf. 242. Regular boarders by the week are not guests. Johnson v. Reynolds, 3 Kan. 257.

Where a horse was left at an inn-stable by one who was not and did not expect to be a guest at the inn, the innkeeper was held not liable except as an ordinary bailee for hire. Ingallsbee v. Wood, 33 N. Y. 577. The case of Mason v. Thompson, 9 Pick. 280, holding a contrary doctrine, was disapproved. In Grinnell v. Cook, 3 Hill, 485, it was held that an innkeeper had no lien on horses left at his stable by one not a guest of the inn, because the correlative obligation of an innkeeper did not attach. But in that case the one leaving the horse was not a traveler, but a resident of the town. The same point was ruled in Thickstun v. Howard, 8 Blackf. 535, and in Hickman v. Thomas, 16 Ala. 666. It is not necessary, however, that one should have food or lodgings in an inn in order to constitute him a guest, " for if he purchase liquor at the inn he thereby becomes a guest, and if his goods are stolen while he is drinking, the innkeeper is liable. This was held in Bennett v. Mellor, 5 T. R. 273, and was followed in McDonald v. Edgerton, 5 Barb. 560, and cited with approbation in Clute v. Wiggins, 14 Johns. 176. It is also adopted in 2 Kent's Com. 593, though pronounced severe.

A restaurant, however, is not an inn. Carpenter v. Taylor, 1 Hilt. 193.

The cases are not entirely agreed as to what negligence on the part of the

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guest will relieve the innkeeper. In Armistead v. Wilde, 17 Q. B. 261, it was said that the negligence must be gross, but the case goes no further than to hold that gross negligence would exonerate the innkeeper without saying that no less degree would. In Cashill v. Wright, 6 El. & B. 891, it was held sufficient if "the negligence of the guest occasions the loss in such a way that the loss would not have happened if the guest had used the ordinary care that a prudent man may be reasonably expected to have taken under the circumstances." If the negligence of the guest contribute to the loss the innkeeper will be excused. Fowler v. Dorlon, 24 Barb. 384; Hawley v. Smith, 25 Wend. 642; Hadley v. Upshaw, 27 Tex. 547; Chamberlain v. Masterton, 26 Ala. 371; Kelsey v. Berry, 42 11. 469.

It was resolved in Calye's Case that it is no excuse for the innkeeper to say that he delivered the guest the key of the chamber in which he is lodged, and that he left the chamber door open, but he ought to keep the goods and chattels of his guest there in safety." But notwithstanding it has been very properly held that where a guest omits to use his key, and a thief entering through the unlocked door steals his goods, such omission may be given in evidence for the jury, of contributory negligence. Oppenheim v. The White Lion Hotel Co., L. R., 6 C. P. 515. The question for the jury is whether the loss would, or would not have happened if the guest had used the ordinary care that a prudent man might reasonably be expected to have taken under the circumstances.

In the case last cited, WILLES, J., said: "When Lord COKE in Calye's Case refers to the authorities in the Year Books to show that the innkeeper is liable, though the guest has a key and does not use it, all he means is that the innkeeper cannot get rid of his common-law liability by giving the guest a key. But he by no means lays it down that the guest may not be guilty of negligence in abstaining from using it."

"I agree" said Lord ELLENBOROUGH in Burgess v. Clement, 4 M. & S. 310, "in what is said in Calye's Case that the mere delivery of the key of a room will not dispense with the care and attention due from the landlord, and that he cannot exonerate himself by merely handing a key over to his guest; but if the guest take the key it is a very proper question for the jury whether he takes it animo custodiendi, and for the purpose of exempting the landlord from his liability, or whether he takes it merely because the landlord forced it upon him, or for the sake of securing greater privacy, in order to prevent persons from intruding themselves into his room."

Whether a guest has been guilty of contributory negligence in not locking his door is a question of fact for the jury. Jalie v. Cardinal, 35 Wis. 118.

It is not necessary that the goods should have been placed in the special keeping of the innkeeper in order to make him liable. If a guest's goods are within the inn, that is enough to charge the innkeeper. Bennett v. Mellor, 5 T. R. 273; 2 Kent's Com. 593; McDonald v. Edgerton, 5 Barb. 560; Packard v. Northcraft, 2 Metc. (Ky.) 439; Norcross v. Norcross, 53 Me. 163; Burrows v. Trieber, 21 Md. 320.

A sleigh loaded with wheat was put by the guest into an out-house appurtenant to the inn, where loads of that description were usually received, and the grain was stolen during the night, the innkeeper was held responsible, the court remarking: "The bags of grain therefore may be deemed to have been infra hospitium, and being so it is not necessary to prove negligence in the inn. keeper to make him liable for the loss." Clute v. Wiggins, 14 Johns. 175.

But an innkeeper is not responsible for the loss or embezzlement of a guest's money or property, deposited with a servant or inmate of the inn for safe-keep

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Ing, provided such deposit was not made on the security of the inn, but as a matter of trust and confidence in the depositee. Sneider v. Geiss, 1 Yeates, 35; Houser v. Tully (62 Penn. St. 92), 1 Am. Rep. 390; and whether the deposit was made on the credit of the inn or otherwise is a question of fact for the jury. Ib

It has been said that "as the innkeeper is chargeable on the ground of the profit he derives from his guest, or his goods, where there is no profit to the innkeeper, there shall be no charge;" and for this reason it was held in York v. Grenaugh, 2 Ld. Raym. 866; Salk. 388, that if one leave his horse at an inn and lodge elsewhere, the innkeeper shall be charged for a loss, for the keep of the horse is a profit to the innkeeper, and this case was followed in Mason v. Thompson, 9 Pick. 280; but it was expressly held otherwise in Ingallsbee v. Wood, 33 N. Y. 577, and the ancient rule was doubted in Grinnell v. Cook, 3 Hill, 485; in Hickman v. Thomas, 16 Aia. 666; and in Thickstun v. Howard, 8 Blackf. 535.

An innkeeper is liable for goods lost during the temporary absence of the guest, and even though it extend over several days. 2 Croke, 189; 1 Comyn's Dig. 421; Grinnell v. Cook, 3 Hill, 490; McDonald v. Edgerton, 5 Barb. 560; Baker v. Day, 2 Hur. & C. 14; 32 L. J. Ex. 171.

An innkeeper is liable for goods left with him by a guest for a reasonable time, even after the guest has paid his bill, if he assents to their being left at the inn. Adams v. Clem (41 Ga. 65), 5 Am. Rep. 524; Giles v. Fauntleroy, 18 Md. 126; or if the guest has not had a reasonable time to remove them. Seymour v. Cook, 53 Barb. 451.

An innkeeper is bound to receive all who come, unless his house is full. Bondloe, 69, Pl. 101; or unless the person is not in a condition fit to be received. Thompson v. Lacey, 3 B. & Ald. 287. Commonwealth v. Mitchell, 1 Phil. (Pa.) 63; Fell v. Knight, 8 M. & W. 269; Howell v. Jackson, 6 C. & P. 725. But the innkeeper may exact his pay in advance. Bro. Action Sur. Case, 76; 9 Co. 87; but the neglect or refusal to tender, or pay in advance must be the ground of the refusal to receive in order to be a defense to an action for refusing to receive. Nor is it a defense that the guest was traveling on Sunday or at night after the innkeeper and his family had gone to bed, nor that the guest refused to tell his name and abode, as the innkeeper has no right to insist upon know. ing these; but if the guest is drunk, or conducts himself improperly, the innkeeper is not bound to receive him. Rex v. Ivens, 7 C. & P. 213; see, also, Howell v. Jackson, supra.

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In Markham v. Brown, 8 N. H. 523, it was said that an innkeeper "is not bound to admit one whose notorious character as a thief furnishes good reason to sup. pose that he will purloin the goods of his guests or his own so he may prohibit the entry of one whose misconduct in other particulars, or whose filthy condition would subject his guests to annoyance."

An nnkeeper is not bound to provide greater accommodations than his premises naturally afford. Broadwood v. Granara, 10 Ex. 423; 24 L. J. Ex. 1; nor is he liable where the inn is full and the guest agrees to shift among the others and is robbed. White's Case, Dyer, 158.

If an individual has entered a public inn and his presence is disagreeable to the proprietor or his guests, the innkeeper may request him to depart, and may use what force is necessary to compel him to do so. Commonwealth v. Mitchell, 2 Par. Sel. Cas. (Pa.) 431.

The liability of the innkeeper for money, etc., is not limited to what is reasonably necessary for traveling. Berkshire Woolen Co. v. Proctor, 7 Cush. 417;