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Full text of "The law of innkeepers and hotels : including other public houses, theatres, sleeping cars"

William J.Nagel 
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The original of tiiis bool< is in 
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the United States on the use of the text. 



http://www.archive.org/details/cu31924059769798 



THE LAW OF 



INNKEEPERS AND HOTELS 



INCLUDING OTHER PUBLIC HOUSES 



THEATRES, SLEEPING CARS 



BY 



JOSEPH HENRY BEALE, JR., 

BUSSET PBOFBSSOB OF LAW IN HARVARD TTNIVEBSITY. 



OCT 6 2000 



CORNELL UiNivhiOii i 

LIBRARIES 

ITHACA, N. Y. 14853 




WILLIAM J. NAGEL Hotel Administration Library 
BOSTON StatlerHaU 

1906 



Copyright, 1906, 
By JOSEPH HEISTRT BEALE, Jb. 



PREFACE 

The law of innkeepers was the eariiest developed and is the 
simplest and clearest of those topics of law which are con- 
cerned with the various pubHc-service callings. While its ex- 
tent is slight, it is of considerable practical importance; and 
its theoretical interest is great to those who are concerned 
with the development and appUcation of pubUc-service law. 

It is the last aspect of the subject which drew the attention 
of the author to it. The practical importance and the legal 
interest of the public-service law justify a thorough study 
and investigation of it in all its appUcations. The rapid and 
enormous growth of the modern public-service corporations 
has outrun the law. The general principles by which they are 
governed have been apprehended by the courts, and the suc- 
cess of the courts in applying these principles is a new triumph 
in our time for the plasticity of the common law; but these 
principles have not in all cases been formulated, after a care- 
ful study of their origin and limitations, in a way which is 
entirely satisfactory ; and a careful study of them in all their 
applications seemed desirable. 

In a topic of the law which took form within the Middle 
Ages, it is essential to glance at the history of the hfe out of 
which it grew. Some knowledge of life in the inns of medieval 
England is helpful if not necessary for an understanding of the 
law of innkeepers. This book therefore begins with a short 
and necessarily imperfect sketch of the conditions of life which 
caused the pecuharities of the law. In developing the general 
principles of the law conciseness of treatment has usually 
been sought wherever it seemed possible; but in the more dif- 
ficult portions of the subject, those where there is conflict of 

[iii] 



Pbeface 

authority, and those newer developments of the law where 
authority is slight or altogether lacking, the subject has been 
discussed at greater length. Such statutes have been added 
as may be of interest to guests at inns and other houses of 
pubhc entertainment. 

There is included in this book, along with the law of inn- 
keepers proper, such principles of law as have been developed 
with regard to other houses of public entertainment, such as 
boarding and lodging houses, restaurants and theatres. The 
principles regulating the action of sleeping-car companies are 
also considered at some length. These companies, while 
neither innkeepers nor carriers, are, like them, in a public 
employment, and they partake to some extent of the charac- 
terestics of innkeepers. 

It has seemed best to bring down the citation of authorities 
to what are contained in some volume of digest. This book 
contains, or should contain, the cases cited in the American 
Digest through the second volume for 1905; in the EngUsh 
Annual Digest for 1905; and in the Canadian and other Colo- 
nial digests for 1904. It is impossible to say with confidence, 
even in so narrow a subject, that every case which should be 
included has been found and cited. 

Joseph H. Beale, Jr. 
Cambridge, April 30, 1906. 



[iv] 



TABLE OF CONTENTS 



TITLE I. 
THE PUBLIC CALLING OF INNKEEPERS. 



CHAPTER I. 



HISTORICAL INTRODUCTION. 



1. Inns in the ancient and me- 

dieval world. 

2. Study of the history of English 

inns necessary to understand 
the law. 

3. The conditions of travel in 

medieval England. 



§ 4. Houses of accommodation for 
travellers. 

5. Development of inns from pri- 

vate houses. 

6. Development of the law. 



CHAPTER II. 



THE NATURE OF AN INN. 



§ 11. The inn a public house. 

12. The innkeeper professes a pub- 

lic business. 

13. Distinction between innkeeper 

and private host for hire. 

14. The innkeeper serves transient 

guests. 

15. The innkeeper supplies all 

needs of a traveller. 

16. House conducted on the "Eu- 

ropean plan." 



17. The innkeeper need not supply 

aU the desires of a guest. 

18. The innkeeper is the proprietor 

of an inn. 

19. How the innkeeper's profes- 

sion is made. 

20. Failure to procure a license. 

21. Carrying on of other business. 

22. Name given to inn is immate- 

rial. 

[V] 



Contents. 
CHAPTER III. 



OTHER HOUSES OF ENTERTAINMENT. 



31. Other public houses not in pub- 

lic calling. 

32. Boarding houses. 

33. Livery stables. 



§ 34. Lodging and apartment 
houses. 

35. Restaurants. 

36. Theatres. 

37. Sleeping cars and steamboats. 



CHAPTER IV. 

REGULATION AND LICENSE OF PUBLIC HOUSES. 



41. Regulation of public houses 

permitted. 

42. Licenses. 

43. Licenses usually granted by 

local administrative body. 

44. Corruption in granting or re- 

fusing license criminal. 



§ 45. License board compelled to act 
by mandamus. 

46. Discretion of board cannot be 

controlled. 

47. Remedy for wrong exercise of 

discretion. 

48. Punishment for violation of the 

license law. 



TITLE II. 

THE PUBLIC DUTY OF INNKEEPERS. 
CHAPTER V. 



GENERAL PRINCIPLES REGULATING THE DUTY OF PERSONS IN 
THE PUBLIC EMPLOYMENT. 



51. The law of public employment. 

52. The innkeeper is in a public 

employment. 

53. The duty to receive guests. 

54. The duty to provide adequate 

facilities. 

[vi] 



§ 55. The duty to refrain from dis- 
crimination. 

56. What amounts to unreason- 

able discrimination. 

57. The duty to make reasonable 

charges. 

58. The duty to receive strangers. 



Contents. 
CHAPTER VI. 

DUTY TO RECEIVE GUESTS. 



61 



The innkeeper must receive all 
who apply. 

62. Duty owed to travellers only. 

63. Who is a traveller. 

64. Duty to receive persons inca- 

pable of contracting. 
Restriction of accommodation 

to certain classes. 
Reception may be demanded 

at night. 



65. 



66 



§ 67. Innkeeper must be notified of 
traveller's desire to be re- 
ceived. 

68. Innkeeper's duty to receive 

goods with the guest. 

69. Tender of price of accommoda- 

tion. 

70. Remedy for refusal to receive. 

71. End of obligation to receive. 



CHAPTER VII. 

THE DUTY OF AN INNKEEPER TO PERSONS WHO ARE NOT GUESTS. 



81. Innkeeper's responsibility to 

third persons for acts of 
guests. 

82. Duty to admit strangers not 

seeking entertainment. 

83. Stranger coming to inn for con- 

venience of guest. 

84. Stranger coming for a social 

call on guest. 

85. Stranger coming by appoint- 

ment to do business with 
guest. 



§ 86. Stranger coming to solicit pat- 
ronage. 

87. Discrimination between car- 

riers coming to solicit patron- 
age. 

88. Right of stranger forfeited by 

misconduct. 

89. Stra,nger entering to make in- 

quiry. 



CHAPTER VIII. 



EXCUSES FOR REFUSAL TO RECEIVE A GUEST. 



91. Refusal to receive guest be- 

cause of lack of accommoda- 
tion. 

92. Refusal to receive objection- 

able person. 



§ 93. 



Refusal to receive one suffering 
from contagious disease. 
94. Refusal to receive one whose 
companions have acted im- 
properly. 

[vii] 



Contents. 



95. Refusal to receive one who 

comes at improper time. 

96. Refusal to receive one who 

brings an animal. 



97. Refusal to receive a rival. 

98. Refusal to receive because the 

inn is unlicensed. 



CHAPTER IX. 



THE INNKEEPER S RIGHT TO EJECT ONE WHO HAS BEEN 
ADMITTED TO THE INN. 



101. Right to eject in general. 

102. Ejection for misconduct. 

103. Ejection for illness. 



§ 104. Ejection for refusal to pay. 
105. Ejection of one who h 
ceased to be a traveller. 



TITLE III. 



THE UNDERTAKING OF THE INNKEEPER WITH 
HIS GUEST. 

CHAPTER X. 

THE NATURE OF THE INNKEEPER'S OBLIGATION. 



111. The obligation is imposed by 

law. 

112. Capacity to contract not re- 

quired. 



§ 113. Guest need not be the party 
bound to pay. 
114. What law governs the obliga- 
tion. 



[viii] 



Contents. 



SUBTITLE I. 

THE BEGINNING OF RESPONSIBILITY. 

CHAPTER XI. 

THE HECEPTION OF THE GUEST. 



121. Relation of host and guest es- 

tablished by reception. 

122. Reception requires communi- 

cation of intention to the 
innkeeper. 



§ 123. Traveller entering inn with- 
out presenting himself as 
guest. 

124. Refusal of innkeeper to ac- 

cept guest. 

125. Reception in another capac- 

ity than as guest. 



CHAPTER XII. 



WHO IS A GUEST. 



131. A guest need not resort to an 

inn for both food and lodg- 
ing. 

132. Whether a guest must be per- 

sonally entertained. 

133. Entertainment of servant or 

child as making master or 
father a guest. 

134. Resorting to inn to attend 

banquet or ball. 

135. One not entitled to admit- 

tance received as guest. 



§ 136. Guest at inn for illegal pur- 
pose. 

137. Guest at inn as result of ille- 

gal act. 

138. Difference between guest and 

boarder. 

139. Length of stay at inn as a 

test of the difference. 

140. Residence in the town as a 

test of the difference. 



CHAPTER XIII. 

UNDERTAKING OF RESPONSIBILITY FOR THE GUEST'S GOODS. 



§ 141. Ways of creating responsibil- 
ity. 
Topic I. Goods within the pre- 
cincts of the inn. 



Subtopic A. Goods bailed to 
the innkeeper. 
§ 142. Responsibility begins at mo- 
ment of bailment, 
[ix] 



Contents. 



143. Responsibility conditioned on 

owner becoming guest. 

144. Delivery to a servant of the 

innkeeper. 

145. Delivery by custom. 

146. Delivery by a third person for 

a guest. ' 

147. Delivery to the innkeeper or 

servant in another capacity. 
Subtopic B. Goods brought 
with the guest. 

148. Responsibility of innkeeper 

extends to goods in posses- 
sion of guest. 

149. Goods must be within general 

control of innkeeper. 



§ 150. Innkeeper's responsibiUty for 
merchandise. 

151. Special arrangement made by 

the guest. 

152. Goods brought by guest to 

inn after his own arrival. 
Topic II. Goods outside the inn. 

153. Innkeeper not generally re- 

sponsible for goods taken by 
the guest outside the inn. 

154. Goods placed outside the inn 

by the innkeeper. 

155. Goods placed in customary 

place outside the inn by 
guest. 



SUBTITLE II. 



EXTENT OF RESPONSIBILITY. 



CHAPTER XIV. 



PROTECTION AND CARE OP THE GUEST S PERSON. 



§ 161. Classification of duties of inn- 
keeper to guest. 

162. Duty to furnish safe prem- 

ises. 

163. Defective premises. 

164. Open elevator well. 

165. Contributory negligence of 

guest falling down elevator 
well. 

166. Duty to furnish accommoda- 

tions to the guest. 

167. Right to assign room. 

168. Right to control use of room. 

[x] 



§ 169. Duty to supply food. 

170. Duty to protect guest. 

171. Protection against injury by 

third parties. 

172. Protection against injury by 

servants. 

173. Cases limiting the duty. 

174. The true extent of the duty. 

175. Protection against one who 

has a right to remain in the 
inn. 

176. Duty to protect against fire. 



Contents. 



CHAPTER XV. 

RESPONSIBILITY OP THE INNKEEPER FOR GOODS OF THE 

GUEST. 



§ 181. The innkeeper as a protector 
against marauders. 

182. Innkeeper's responsibility not 

a case of bailment. 

183. History of innkeeper's respon- 

sibility in England. 

184. In the United States. 

185. Jurisdictions imposing the in- 

surance liability. 



§ 186, 



Jurisdictions imposing liability 
of innkeeper for negligence 
only. 

187. Jurisdictions imposing liabil- 

ity for negligence or breach 
of undertaking. 

188. Loss by theft. 

189. Loss by accidental fire. 

190. Presumption of negligence. 

191. For what goods the innkeeper 

is responsible. 



CHAPTER XVL 

innkeeper's RESPONSIBILITY AS A MERE BAILEE. 



Topic I. Responsibility for 
goods of boarder. 

201. Boarder not entitled to extra- 

ordinary responsibility of 
innkeeper. 

202. Innkeeper is ordinary bailee 

for hire of boarder's goods. 
Topic II. Responsibility for 
goods of one neither guest 
nor boarder. 

203. Goods placed in the inn by one 

not a guest or boarder. 



§ 204. Responsibility of innkeeper 
when he takes the goods as 
a matter of business. 

205. Responsibility of innkeeper as 

gratuitous bailee. 

206. Responsibility for misdeliv- 

ery. 
Topic III. Responsibility for 
goods of guest outside the 
inn. 

207. Goods in bath house attached 

to inn. 



CHAPTER XVIL 

LIMITATION AND MODIFICATION OP RESPONSIBILITY. 



211. Limitation of liability by con- 

tract. 

212. Reasonable rules for the con- 

duct of the guest. 



§ 213. Rule requiring deposit of the 
goods. 

214. How far deposit can be re- 

quired. 

215. Sufficiency of the notice. 

[xi] 



Contents. 



CHAPTER XVIII. 



LOSS CHARGEABLE TO THE GUEST; CONTRIBUTORY NEGLIGENCE. 



221. Goods taken by servant or 

companion of guest. 

222. Goods injured because of 

owner's act. 

223. Goods lost by reason of con- 

tributory negligence of 
guest. 

224. What, is contributory negli- 

gence: failure to lock door 
or window. 



§ 225. Failure to deliver valuables 
to innkeeper. 

226. Failure to inform innkeeper 

of value of goods deposited. 

227. Publicly exhibiting money or 

valuables. 

228. Other acts of negligence. 



SUBTITLE lY. 

THE END OF RESPONSIBILITY. 

CHAPTEH XIX. 



TERMINATION OF RELATION OF HOST AND GUEST. 



231. Guest leaves the inn finally. 

232. Responsibility during tem- 

porary absence of guest. 

233. What is a merely temporary 

absence. 



§ 234. Responsibility during reason- 
able time for removal. 
235. Goods received after termina- 
tion of relation. 



TITLE IT. 

COMPENSATION AND LIEN OF THE INNKEEPER. 
CHAPTER XX. 

THE CHARGES OF THE INNKEEPER. 



241. The innkeeper's charges must 

be reasonable. 

242. The amount of the charges 

may be fixed by statute. 
[xii] 



§ 243. The innlceeper may fix rates. 
244. Payment may be required in 
advance. 



Contents. 



245. Compensation due as soon as 

relation is established. 

246. Compensation ceases when 

relation ends. 

247. For what services innkeeper 

is entitled to compensation. 



§ 248. Entire obligation must be per- 
formed. 
249. Which of several guests is 
liable to pay charges. 



CHAPTER XXI. 



THE INNKEEPER S LIEN. 



Topic- I. Nature of the right 
to lien; 
\ 251. Nature of innkeeper's lien. 

252. General rule. 

253. Lien does not require a bind- 

ing contract. 

254. Lien does not cover prior 

charges. 
Topic II .-To what property 
the lien extends. 

255. Every kind of property sub- 

ject to lien for entire charge. 

256. Goods received in the inn sub- 

ject to lien, though the host 
might have excluded them. 

257. No lien on the person of the 

guest. 

258. No lien on goods which can- 

not be taken without viola- 
tion of law. 

259. Wearing apparel worn by 

guest. 

260. Property exempt from exe- 

cution. 
Topic III. Against whose 
property the lien exists. 

261. Goods of a third person 

brought by the guest to the 
inn. 

262. Knowledge of the innkeeper 

that the goods do not be- 
long to the guest. 



I 263. The rule in Georgia. 

264. Goods of a guest not respon- 

sible for charges. 

265. Statutory liens hold only 

property of the guest. 
Topic IT. The beginning and 
continuance of the lien. 

266. Lien attaches when charges 

accrue. 

267. Sale of goods by owner does 

not affect lien. 

268. Removal of goods to another 

State does not affect lien. 

269. Care of goods held on lien. 
Topic V. End of the lien. 

270. Delivery of goods to the 

guest. 

271. Delivery induced by fraud. 

272. Delivery for temporary use. 

273. Giving payment. 

274. Attachment of goods by the 

innkeeper. 

275. Conversion of the goods. 
Topic VI. Enforcement of 

lien. 

276. Iimkeeper's lien cannot be 

foreclosed by sale. 

277. Foreclosure in equity. 

278. Lien as a defence. 

279. Statutory methods of enforc- 

ing the lien. 

[xiii] 



Contents. 

TITLE V". 

REMEDIES AGAINST INNKEEPER. 

CHAPTER XXII. 

ACTION AGAINST INNKEEPER. 



281. Nature of action 

282. Form of action. 

283. The declaration. 



§ 284'. Survival of action. 
285. Who may sue. 



TITLE YI. 

OTHER PUBLIC HOUSES. 

CHAPTER XXIII. 

THE BOARDING HOUSE. 



291. Difference between boarding 

house and inn. 

292. Responsibility of keeper for 

goods of boarder. 

293. Responsibility for negligence 

of servant. 

294. Nature of care required. 



§ 295. Care in the admission of per- 
sons as boarders. 

296. Contributory negligence of 

the boarder. 

297. Special undertaking of the 

boarding-house keeper. 

298. Boarding-house keeper's lien. 



CHAPTER XXIV. 



THE RESTAURANT. 



301. Difference between restaurant 

and inn. 

302. Duty of keeper of restaurant 

to customer personally. 

303. Responsibility for the goods 

of customer. 

[xiv] 



304. Responsibility on a bailment. 

305. Responsibility on an implied 

bailment. 

306. Responsibility for defect of 

watchfulness. 



Contexts. 
CHAPTER XXV. 

THE THEATRE. 



Topic I. The nature of a 
theatre. 

311. Definition of a theatre. 

312. An opera house is a theatre. 
Topic II. Admission to the 

theatre. 

313. The manager may fix prices 

as he pleases. 

314. The manager may admit 

whom he pleases. 

315. Ticket for entrance to a the- 

atre is a mere license. 

316. Ticket is also a contract not 

to revoke license. 

317. How far a ticket is transfer- 

able. 

318. Accommodations secured by 

the ticket. 
Topic III. Rights of specta- 
tors. 



§ 319. The right of spectators to crit- 
icise the entertainment. 

320. The right of spectators to ap- 

plaud or hiss. 
Topic IV. Responsibility of 
the manager. 

321. Responsibility of the manager 

for the personal safety of 
the spectator. 

322. Responsibility of the manager 

for the safety of the prem- 
ises. 

323. Contributory negligence of 

the injured party. 

324. Responsibility of the manager 

for the goods of the specta- 
tor. 
Topic V. Licenses. 

325. The requirement of a license. 



CHAPTER XXVI. 



OTHER PUBLIC HOUSES. 



331. Lodging houses. 

332. Extent of Hability. 



I § 333. Bath houses. 



[xvl 



Contents. 
TITLE YII. 
SLEEPING CARS. 
CHAPTER XXVII. 

DUTY TO SERVE PASSENGERS. 



341. Sleeping car not an inn. 

342. Sleeping car company not a 

carrier. 

343. Sleeping car company must 

serve the public. 

344. Right of an applicant to a 

berth. 

346. Right to occupy an entire sec- 
tion. 

346. What berths are vacant; res- 
ervation of berths. 



§ 347. No duty of company to grant 
reservation. 

348. Reservation by ticket. 

349. Reservation of berths for way 

stations. 

350. Failure of reserving passen- 

ger to occupy. 

351. Duty to put on extra car. 

352. Right to compensation. 



CHAPTER XXVIII. 



RESPONSIBILITY FOR THE SAFETY AND COMPORT OF THE 

PASSENGER. 



361. Duty to provide appliances. 

362. Appliances for convenient use 

of upper berth. 

363. Warming and ventilating the 

car. 

364. Providing berth for which 

ticket has been issued. 

365. Providing berth throughout 

the journey. 

366. Excuse for ejecting passenger. 

367. Right of company to change 

berth. 

368. Who may occupy berth. 

[xvi] 



§ 369. Making up berth. 

370. Duty to awaken passengers. 

371. Regulations. 

372. Safety of the car. 

373. Protection of passengers. 

374. Injury by servant of the com- 

pany. 

375. Cumulative liability of the 

carrier. 

376. Duty of the passenger to take 

care of the berth. 

377. Right of the passenger to as- 

sign or exchange berth. 



Contents. 
CHAPTER XXIX. 

RESPONSIBILITY FOR THE PROPERTY OF THE PASSENGER. 



381. Liability for negligence. 

382. Loss by theft of servant of the 

company. 

383. For what goods the company 

is responsible. 

384. Amount of care required. 

385. Negligence in the daytime. 

386. Care necessary at night. 

387. Continuous and effective 

watch. 

388. Theft by another passenger. 



389. Preventing a passenger from 

carrying off another's lug- 
gage. 

390. Limitation of liability. 

391. Contributory negligence. 

392. Evidence of negligence. 

393. Burden of proof. 

394. Care of property left behind 

by a passenger. 

395. Company when liable for 

goods as baUee. 



CHAPTER XXX. 

ACTIONS, DAMAGES AND THE CONFLICT OF LAWS. 



401 . Form of action. 

402. Measure of damages. 



I § 403. Conflict of laws. 



TITLE YIII. 
STATUTES AFFECTING INNKEEPERS. 

CHAPTER XXXI. 

LIMITATIONS OF INNKEEPERS' LIABILITY. 



Topic I. General Principles. 

411. General statutory limitations 

of liability. 

412. Non-compliance by guest not 

causing loss. 

413. Non-compliance by innkeeper. 

414. Negligence of innkeeper. 

415. Effect of statute on responsi- 

bility for merchandise. 



416. Burden of proof. 

Topic II. The Posting of No- 
tice. 

417. Requirements of statute must 

be exactly complied with. 

418. Printing notice on register not 

sufficient. 

419. Notice erroneously printed. 

[ xvii ] 



Contents. 



420. Actual notice of regulation on 

part of guest: New York 
rule. 

421. Actual notice: general rule. 

422. Actual notice: what is suffi- 

cient to constitute. 

Topic III. Deposit of Goods 
with the Innkeeper. 

423. What constitutes a sufficient 

deposit. 

424. Deposit must be for safe keep- 

ing. 

425. Effect of deposit. 

426. Waiver of deposit. 



§ 427. During what time the limita- 
tion is in effect. 
Topic IV. What goods must 
be deposited with the inn- 
keeper. 

428. Whether all goods must be 

deposited. 

429. Statutes expressly excepting 

goods needed in guest's 
room. 

430. Statutes expressly enumerat- 

ing classes of goods to be 
deposited. 

431. Deposit of watch. 

432. Deposit of article needed for 

immediate use. 



CHAPTER XXXII. 



CRIMES AGAINST INNKEEPERS. 



Topic I. Fraud on innkeeper 
in general. 
§ 441. Statutes punishing fraud in 
guests and boarders. 

442. Statute strictly construed. 

443. Form of indictment. 

Topic II. Fraudulent obtain- 
ing of board. 

444. Fraud essential. 

445. False representation required. 

446. Pretence must be made with 

fraudulent motive. 

447. Board or other accommoda- 

tion must be actually ob- 
tained. 



448. Board must be obtained by 

the pretence. 
Topic III. Surreptitious re- 
moval of property. 

449. Surreptitious removal as 

prima facie evidence of 
fraud. 

450. Surreptitious removal as sub- 

stantive offence. 

451. What sort of removal is sur- 

reptitious. 

452. Posting of notice not neces- 

sary. 



Appendix of Statutes. . . 307 I 
Table of Cases Cited. . . .535 



Index 571 



[ xviii ] 



INNKEEPEES 



TITLE I. 

THE PUBLIC CALLING OF INNKEEPERS. 

CHAPTER I. 



HISTORICAL INTRODUCTION. 



5 1. Inns in the ancient and me- 
dieval world. 

2. Study of the history of English 

inns necessary to understand 
the law. 

3. The conditions of travel in 

medieval England. 



§ 4. Houses of accommodation for 
travellers. 

5. Development of inns from pri- 

vate houses. 

6. Development of the law. 



§ 1. Inns in the ancient and medieval world. 

Houses of public entertainment have been maintained in all 
countries from early times. In the ancient world we hear of 
inns in all civilized countries, in Asia, in Palestine, in Greece 
and in Italy.^ Throughout the middle ages the use of such 
houses continued all over the world, from the cabarets and au- 
berges of France to the khans and caravanseries of the 
Orient. 

Travel abroad was much commoner during the middle ages 
than we often realize; and the traveller returning to England 

l"AuSol . . . TrpQiTOL &v$p(iTr<Pv, twv iifiets Idftev, . . , Ki,TnjKoi iyivavro." 
Herodotos i, 94. 

" OiiK ^v airroii riros iv t$ KaTaXiimri." Luke ii, 7. 

"Forum Appi, 
Differtum nautis cauponibus atque malignis." 

Horace Sat. i, 5, 3. 

[1] 



§ 2.] Innkeepers. [Chap. I. 

might have brought home with him information about the 
trade of the innkeeper and suggested its estabUshment in his 
own land. But there is no reason to suppose that the English 
inns were not of indigenous growth; certain it is that they 
were noted as the cleanest, the best supplied and the most at- 
tractive inns in the world. We must turn to the habits and 
needs of travel in medieval England to explain the origin, the 
nature and the legal position of Enghsh inns. 

§ 2. Study of the history of English inns necessary to understand 
the law. 

Such study of origins it behooves us to make. The law reg- 
ulating the rights and duties of an innkeeper are not in all 
respects what one might have looked for as applying to the 
innkeeper of to-day. The innkeeper occupies in our law a pe- 
culiar and apparently anomalous position: while not techni- 
cally a bailee of the goods of his guests he is held up to the 
strictest responsibility which any bailee is under; and while 
apparently a mere individual householder with no corporate 
or other franchise specially granted he is compelled, Uke the 
great raihoad corporations, to receive and entertain strangers 
whether he wUl or no. These and other duties and responsibil- 
ities of the innkeeper will be considered at length in later chap- 
ters, but in order that we may understand the reason for the 
apparently peculiar doctrine of the law regulating the rights 
and habiUties of innkeepers, in order that we may learn the ex- 
tent of their responsibilities and understand their limitations, 
we must examine briefly, as has just been said, the early his- 
tory of innkeeping in England; the character and nature of 
inns, and the functions which they performed in the social Ufe 
of the Enghsh people at the time when the law of innkeepers 
was forming, that is, during the fourteenth and fifteenth cen- 
tviries. The nature of the English inn in the middle ages de- 
termined the Enghsh law of innkeepers; and the principles thus 
established form the basis of the law of innkeepers in every 
place where the common law prevails. 
[2] 



Chap. I.] Historical Introduction. [§4. 

§ 3. The condition of travel in medieval England. 

There was a surprising amount of travelling in England in 
the middle ages. The roads to be sure were very bad and in 
general were impassable for loaded wagons; and the transpor- 
tation of goods from place to place was therefore almost impos- 
sible. While one portion of the country was well supplied with 
food another portion not so far away might be in the throes of 
famine without a chance of relief so far as land transportation 
was concerned. Yet in spite of this the roads were sufficient 
for- foot passengers, or for lightly loaded horses, and they were 
used by multitudes of people on foot and on horseback. Car- 
riers of goods existed, but they transported their goods in packs 
by means of horses. M. Jusserand gives an interesting and 
graphic picture of the condition of travel on the English roads 
during this period.^ 

The roads were not only bad, but they were infested with 
outlaws and robbers of all sorts. Between the villages there 
were long stretches of forest, and these forests were the refuge 
of the outlaws who formed a considerable proportion of the 
population of the country. They might at any time attack 
travellers by day, but that was unusual. As it usually hap- 
pened that travellers proceeded in companies, there was not 
much danger of attack so long as dayUght lasted; but at night 
the danger was considerable. 

§ 4. Houses of accommodation for travellers. 

Such being the conditions of travelUng two results followed: 
a traveller must carry as Ught weight of baggage as possible, 
and he must secure protection at night from thieves and out- 
laws. He could not conveniently carry with him food for his 
journey, and he must therefore find entertainment along the 
road. He could not safely sleep in the open and he must, there- 
fore, find some house which would offer him protection as well 
as entertainment for the night. These needs led naturally to the 
estabfishment of a course of business which should supply the 
2 " English Wayfaring Life," passim. 

[3] 



§ 4.] Innkeepers. [Chap. I. 

demand. At the proper place on every main road of travel 
houses were devoted to the business of furnishing food, drink 
and safe lodging to hungry and weary travellers. Thus out of 
the needs of the wayfarer and as an incident of travel from 
place to place grew the English inn. It was established to sup- 
ply the needs of the traveller along his journey, to wit, to fur- 
nish food and drink for man and beast and rest and safety for 
the night. 

"Inns . . . were intended for the middle class: mer- 
chants, small landowners, packmen, etc. A certain number of 
beds were placed in one room, and each man bought separately 
what he wished to eat, chiefly bread, a Uttle meat, and some 
beer. Complaints as to the excessive prices were not much less 
frequent then than now; the people petitioned Parliament and 
the king interfered accordingly with his accustomed useless 
good will. Edward III promulgated, in the 23d year of his 
reign, a statute to constrain 'hostelers et herbergers' to sell 
food at reasonable prices; and again, four years later, tried to 
put an end to the 'great and outrageous cost of victuals kept 
up in all the realm by innkeepers and other retailers of vict- 
uals, to the great detriment of the people travelling across 
the realm. ' " ^ 

The inn was not the only accommodation which weary trav- 
ellers might find in the course of their journey. The rehgious 
houses practiced hospitality, and freely received certain classes 
of people. The nobles and magnates habitually resorted to 
them for refreshment and were received both in consideration 
of their own bounty and as representatives of the class to which 
the community owed its foundation and its wealth. The very 
poor also were received out of mere charity, for hospitality to 
the poor was one of the first requirements of rehgion as it was 
understood in the middle ages. To the houses of the friars, 
therefore, rich and poor resorted for entertainment; but the 
great middle class, the men who were able to pay their way, 

3 Jusserand, " English Wayfaring I;ife," p. 126. 
[4] 



Chap. I.] Historical Introduction. [§ 5. 

were not welcome there. If they had the means to pay for 
accommodation and were without special claim to favor, they 
must go to those whose business it was to care for them. The 
great houses of nobles and gentry were also open to travellers 
who were in need of entertainment, but there, too, it was as a 
rule only the rich and the poor who were expected to avail 
themselves of the private hospitality. Anyone lost or be- 
nighted would of course be received; but the lord of the manor 
had no desire to compete with the innkeeper who must make 
his Uvelihood from the wayfarer. 

Besides these private houses and the inn for necessary enter- 
tainment, the alehouse or tavern supplied incidental refresh- 
ment to the traveller, though primarily intended to serve an- 
other purpose. This house primarily supplied the wants of the 
inhabitants of the place, for there the native foimd rest, heat, 
companionship and beer. He could stay until the stroke of 
curfew, and then was turned out to find his way home as best 
he might, quarrelling and fighting by the way, using his knife 
freely, or falling from his horse into a convenient stream, the 
easy prey for enemies and for robbers. "The law would not 
have a tavern haunted out of season, " and the nighttime was 
out of season. The difference between the inn and the. tavern 
is therefore obvious. The one was instituted for the weary 
traveller, the other for the native; the one furnished food that 
the traveller might continue his journey, the other furnished 
drink for the mere pleasure of neighbors; the one was open to 
the traveller for protection at night, the other turned its guest 
out at the very moment when he most needed protection, and 
left him to find it, if his remaining senses permitted him to do 
so, in his own home. It is unnecessary, therefore, to point out 
the fact that a tavern is not an inn, and that the innkeeper's 
duties do not extend to the tavernkeeper. 

§ 5. Development of inns from private houses. 

Such being the course of life among wayfarers in medieval 
England, the inn was a natural outgrowth of the conditions. 

[5] 



§ 5.] Innkeepers. [Chap. I. 

The inn, the pubUc house of entertainment, was natiirally 
evolved from the private house. Any householder might re- 
ceive a stranger for the night, as indeed in rural communities 
many householders are apt to do. If in the course of time one 
such householder came, either through the superiority of his 
own accommodation or by reason of the lack of competition, 
to receive all persons who in that village needed accommoda- 
tion he would thereby have become an innkeeper. He would 
have done it perhaps gradually, without any distinct change 
marking the transition from the private householder to the pub- 
lic innkeeper; nor would the accommodation he offered be differ- 
ent in kind from the accommodation that would be offered by 
the private householder furnishing occasional accommodation 
to a transient guest. The inn was an outgrowth of the private 
house, and the kind of house employed and the general conduct 
of hfe in the house would be the same in the early inn and the 
private house of the same period. In order to discover the na- 
ture of the accommodation afforded by the inn it will, there- 
fore, be worth while to examine the plan of life in the ordinary 
dwelHng of the time. 

The English houses of the thirteenth and fourteenth centu- 
ries differed greatly, of course, in size and in elegance, but the 
plan of life in all houses had certain common features. Life 
indoors centred about the great hall, the principal part of the 
house, to which other parts were added as they might be re- 
quired. In the hall the days were spent, so far as they were 
spent indoors, meals were eaten, and night having come the 
tables were removed and the beds were spread. The mistress, 
to be sure, had a small room of her own, the bower, into which 
she could retire at any time, and the master of the house had 
a separate chamber in which he slept. But the retainers, the 
servants and the ordinary guests slept together in the common 
hall. The house of a man who was well to do might have an 
additional chamber for guests, and a stable was usually at- 
tached to the hall at one end. The hall was warmed and 
lighted by a great fire. In each chamber there was a small fire- 
[6] 



Chap. I.] Historical Introduction. [§ 6. 

place for heat, and light was given by a candle. The inn was 
undoubtedly built on this same plan, even when a building was 
built especially for an inn; in most cases doubtless the inn had 
been built for an ordinary dwelling house. The weary trav- 
eller coming to the inn at nightfall would have his supper at 
the great table, and his bed would then be spread in the hall 
itself. Heat and such light as was necessary he would have 
from the hall fire. If he brought a horse and paid for his keep 
we are told he paid no extra charge for his bed, but the foot 
traveller paid a small sum for his lodging. A traveller of better 
estate would pay for and receive accommodation in a small 
chamber. There he would be served with food, and his bed 
would be spread; and he would be charged not merely for the 
food and lodging, but also for his fire and his candle. Even 
there he would not be likely to occupy the chamber alone, or 
even a bed alone; the king himself on his travels was expected 
to have a bedfellow, and a private person would be fortunate 
if he had only one. Still he was travelling in luxury if he 
shared with two or three others a private chamber, a private 
bed and a private fire. As time went on and the business of 
the innkeepers increased, especially in the great towns, build- 
ings were built as inns, the number of chambers being greatly 
increased. In the sixteenth century we hear of inns in London 
which could accommodate one himdred guests. It must be 
clear that with so many guests the common hall would be 
needed for their reception and for the general table; and the 
guests must have all been put into special chambers for sleep- 
ing; but most of these were undoubtedly still common cham- 
bers, in which travellers were put as they happened to come, 
sharing not merely the chamber but the bed with strange bed- 
fellows. 

§ 6. Development of the law. 

Such being the business and such the customs of innkeepers, 
their responsibihty, which seen through modern eyes seems 
anomalous, is easily explained. They undertake as a business 

[7] 



§ 6.] Innkeepers. [Chap. I. 

to furnish food, protection and shelter to the wayfaring guest; 
having undertaken such a public business, and the public need 
being concerned, the innkeeper must supply his service to all; 
and in order to perform his undertaking he must furnish not 
merely sufficient food and a tight roof, but sufficient protection 
against the dangers of country travelling. Either to refuse 
shelter, to fail to provide food, or to permit robbers from out- 
side to en|;er the inn would be a breach of his obligation and 
would render him liable to action. ) ' But this is not the limit 
of his obligation. If he puts a stranger into a common room 
with other strangers and bids him sleep, the innkeeper must 
undertake his care and protection during the night, not merely 
against persons outside but against strange bedfellows within 
the inn. It is interesting to notice how history repeats itself 
in this case. A much later invention, the sleeping car, brought 
back to modern life some of the obsolete features of the life of 
the middle ages. A number of persons, strangers to one an- 
other, were received to sleep jn a common room open to per- 
sons from outside. The existence of the same conditions im- 
posed a similar responsibility, and the proprietor of the sleep- 
ing car, like the innkeeper in the middle ages, was obliged to 
protect his guests as well as he could against danger from 
within and from without. The innkeeper's liability did not ex- 
ist in the case of a private chamber, into which only the guest 
who engaged it or friends brought into it by himself were al- 
lowed to enter. If a man engaged a room and was put in ex- 
clusive control of it, and was given the key, the protection 
which the innkeeper was obliged to furnish him was, therefore, 
merely against outsiders who might be permitted to break into 
the room without right. Against the inmates the guest had no 
right to call upon the innkeeper for protection. This is the 
reason of the stress laid in the old cases upon the fact that the 
innkeeper has given the guest the key of his room; this gift of 
key marked and symbolized the fact that the room was no 
longer in the innkeeper's disposal, that he could quarter no 
stranger in it, and that the guest and his friends alone could 
[8] 



Chap I.] Historical Introduction. [§ 6. 

enter, and, therefore, against those who rightly entered the 
innkeeper undertook no responsibihty. 

The business of innkeeper having been carried on in this way 
the distinctive features of the law are easily accounted for. 
The principles of the innkeeper's liability once being estab- 
lished have continued unchanged until the present day; and 
the hotel keeper in the great cities of the United States derives 
his rights and traces his responsibiUties to the host of the 
humble village inn of medieval England. 



[9] 



CHAPTER II. 

THE NATURE OF AN INN. 



11. The inn a public house. 

12. The innkeeper professes a pub- 

lic business. 

13. Distinction between innkeeper 

and private host for hire. 

14. The innkeeper serves transient 

guests. 

15. The innkeeper supplies aU 

needs of a traveller. 

16. House conducted on the "Eu- 

ropean plan." 



§ 17. The innkeeper need not supply 
all the desires of a guest. 

18. The innkeeper is the proprietor 

of an inn. 

19. How the innkeeper's profes- 

sion is made. 

20. Failure to procure a license. 

21. Carrying on of other business. 

22. Name given to inn is immate- 

rial. 



§ 11. The inn a public house. 

From the earliest times the fundamental characteristic of an 
inn has been its pubUc nature. It is a pubhc house, a house of 
public entertainment, or, as it is legally phrased, a common inn.* 
" An inn is a house, the owner of which holds out that he will 
receive all travellers and sojourners who are willing to pay a 
price adequate to the sort of accommodation provided, and who 
come in a situation in which they" are fit to be received. " ^ "A 
house [kept] publicly, openly and notoriously for the entertain- 
ment and accommodation of travellers and others, for a re- 
ward. " ^ 

The whole system of travel and communication in rural Eng- 
land, at the time the law of inns was in the making, required, 
as has been seen,* that the weary traveller should find at con- 
venient places beside the highway houses of entertainment and 
shelter to which he might resort during his journey for food, 

1 Horslow's Case, Year Book 22 Hen. 6, 21, pi. 38 (1444). 

2 Best, J., in Thompson v. Lacy, 3 B. & Aid. (Eng.) 283 (1820). 

3 State V. Stone, 6 Vt. 295 (1834). 
*Ante, §4. 

[10] 



Chap. II.] The Nature of An Inn. [§ 13. 

rest and protection. The ordinary laws of supply and demand 
would lead to the establishment of such houses by the roadside 
at places which would sufficiently serve the public convenience; 
but those laws could not be trusted to secure to each individual 
the benefit of the food and shelter therein provided. The de- 
sire for gain is not the only passion which moves men, innkeep- 
ers or others. Hatred, prejudice, envy, sloth or undue fastid- 
iousness might influence an innkeeper to refuse entertainment 
to a traveller, even though he could pay his score. The supply 
of food and shelter to a traveller was a matter of public concern, 
and the house which offered such food and shelter was engaged 
in a public service. The law must make injustice to the in- 
dividual traveller impossible ; the caprice of the host could not 
be permitted to leave a subject of the king hungry and shelter- 
less. In a matter of such importance the public had an inter- 
est, and must see that, so far as was consistent with justice to 
the innkeeper, his inn was carried on for the benefit of the whole 
public; and so it became in an exact sense a public house. 

§ 12. The innkeeper professes a public business. 

It follow^ from the nature of the inn that an innkeeper is 
one who professes to serve the public by keeping an inn. The 
most striking characteristic of his eriiplo3n]aent, that which dis- 
tinguishes his employment from that of an ordinary person's," 
is the fact that his calling is a public one. He is a " common 
innkeeper," ^ who, in the quaint language of Lord Holt, ^ "has 
made profession of a trade which is for the public good, and 
has thereby exposed and vested an interest of himself in all the 
king's subjects that will employ him in the way of his trade. " 
Whether a man is an innkeeper depends, therefore, in the first 
place upon whether he makes a profession of serving the pubHc 
needs; whether his regular business is entertaining travellers. 

§ 13. Distinction between innkeeper and private host for hire. 
In many places where there are no inns, private householders 

6 Year Book, 11 Hen. 4, 45, pi. 18 (1410). 
8 Lane v. Cotton, 12 Mod. 472, 484 (1701). 

[11] 



§ 13.] Innkeepees. [Chap. II. 

occasionally, and even frequently, take in and accommodate 
travellers and receive compensation for it; but merely as a 
matter of accommodation, and without making a business of 
the practice. They receive the stranger and traveller out of 
mere hospitality, or from motives among which gain is merely 
incidental, and their livelihood in not derived from their hos- 
pitahty. Such persons, though they receive compensation for 
the accommodation they furnish, are not innkeepers.'' 

Thus in a Texas case * it was shown that a man had a house 
on the high road, much visited by travellers, who were uni- 
formly entertained and charged; these facts were notorious 
and relied on by travellers. On the other hand, he often de- 
clared that he did not keep an inn, he refused to take boarders, 
and often entertained his friends and countrjmien free of charge. 
The court held that the question whether he was or was not 
an innkeeper was for the jury and that the jury might on this 
evidence find him an innkeeper. In the course of his opinion 
Judge Roberts said: 

"There are numerous farmers situated on the public roads 
of the country, who occasionally, and even frequently, take in 
and accommodate travellers, and receive compensation for it, 
who are not innkeepers, and are not liable as such. It is not 
their business or occupation, nor do they prepare and fit up 
their establishments for it. They yield to the laws of hospi- 
tahty, in receiving and entertaining the stranger and the trav- 
eller, yet they cannot afford to do so without some compensa- 
tion. This view of the subject the court also presented to the 
minds of the jury, by telUng them in substance that if the de- 
fendant only occasionally entertained travellers for compensa- 
tion, when it suited his own pleasure, he did not thereby be- 
come an innkeeper. " 

In a similar case in Iowa it was proved that the person al- 

'Lyon V. Smith, 1 Morris (la.), 184 (1843); Kisten v. Hildebrand, 9 B. 
Mon. (Ky.) 74, 48 Am. Dec. 416 (1848); State v. Matthews, 2 Dev. & B. 
(N. C.) 424 (1837); Howth v. Franklin, 20 Tex. 798, 73 Am. Dec. 218 (1858). 

8 Howth V. Franklin, 20 Tex. 798, 73 Am. Dec. 218 (1858). 
[12] 



Chap. II.] The Nature of an Inn. [§ 13. 

leged to be an innkeeper had entertained several individuals 
at his house overnight and been paid a compensation for his 
care and attentions; but there was no proof that he held him- 
self out in any manner as a common innkeeper, or that he was 
so regarded by the pubUc. The court upheld a finding that 
the person was not an innkeeper." In the course of his opinion 
Chief Justice Mason said: "To render a person liable as a com- 
mon innkeeper, it is not sufficient to show that he occasionally 
entertains travellers. Most of the farmers in a new country 
do this, without supposing themselves answerable for the horses 
or other property of their guests which may be stolen, or other- 
wise lost, without any fault of their own. Nor is such the rule 
in older countries, where it would operate with far less injustice, 
and be less opposed to good poUcy than with us. To be sub- 
jected to the same responsibilities attaching to innkeepers, a 
person must make tavernkeeping, to some extent, a regular 
business, a means of Uvefihood. He should hold himself out 
to the world as an innkeeper. It is not necessary that he 
should have a sign or a license, provided that he has in any 
other manner authorized the general understanding that his 
was a public house, where strangers had a right to require ac- 
commodation. The person who occasionally entertains others 
for a reasonable compensation is no more subject to the 
extraordinary responsibility of an innkeeper than he is 
liable as a common carrier, who in certain special cases car- 
ries the property of others from one place to another for 
hire." 
' If, however, the housekeeper does as a matter of fact receive 
every member of the pubhc who appHes for entertainment, as 
a regular course of business, he is an innkeeper, though he may 
claim that his house is still a private one.'" 

The question whether a house where a guest is entertained 
is a pubhc inn or a private house is a question of fact, to be 



9 Lyon V. Smith, Morris (la.), 184 (1843). 

10 Jaquet v. Edwards, 1 Jamaica, 4 (1867). 

[13] 



§ 14.] Innkeepers. [Chap. II. 

determined, like any fact, upon all the evidence; " and an ap- 
pellate court will not disturb the finding of the lower court on 
the question, though it might as an original question have 
come to a different conclusion on the, evidence.'^ 

In determining the question, the facts may lead to a presump- 
tion against a party. Thus if a housekeeper does an act which 
he could not legally do unless he is an innkeeper he will be 
presumed, in the absence of evidence to the contrary, to be 
an innkeeper.i^ 

§ 14. The innkeeper serves transient guests. 

The person whose needs the innkeeper undertakes to serve 
is the weary traveller; a person who stays with him merely 
for a short time in the course of his journey. The inn is there- 
fore primarily provided for transient guests; and one who does 
not profess to serve transient guests is not an innkeeper." 

This characteristic of an innkeeper is the distinguishing fea- 
ture between an inn and a boarding house. A boarding house 
is for the entertainment not of transient guests, who must find 
food and shelter at once, but of more or less permanent occu- 
pants, who may at their leisure make bargains with their host. 
The boarder being in this position, the housekeeper may exer- 
cise the same Uberty. If the boarder may select and bargain 
for his boarding place, so the housekeeper may select and bar- 
gain with his guests.i^ The distinction and the reason for it 

11 Howth V. Franklin, 20 Tex. 798, 73 Am. Dec. 218 (1858); Clary v. WU- 
ley, 49 Vt. 55 (1875). 

12 Rees V. McKeown, 7 Ont. App. 521 (1882). 
JSKorn v. Schedler, 11 Daly (N. Y.), 234 (1882). 

w For this reason it was held necessary in the old cases to allege, in an 
action by a guest against an innkeeper, that the plaintiff was '"transient." 
Grimstone v. An Innkeeper, Hetley (Eng.), 49 (1627); Drope v. Thaire, 
Latch (Eng.), 126 (1626). 

16 Parker v. Flint, 12 Mod. 254, Carthew, 417 (Eng. 1701); Pinkerton v. 
Woodward, 33 Cal. 557, 91 Am. Dec. 657 (1867); BeaU v. Beck, Fed. Cas. 
No. 1161, 3 Cr. C. C. 666 (D. C. 1829); Willard v. Reinhardt, 2 E. D. Smith 
(N. Y.), 148 (1853); Commonwealth v. Cuncannon, 3 Brewst. (Pa.), 344 
(1869). 

[14] 



Chap. II.] The Nature of an Inn. [§ 14. 

were brought out very neatly in an early Georgia case.'" The 
defendant, who was proceeded against on a statute affecting 
innkeepers, was the keeper of a hotel at a country watering 
place, who undertook, either in his hotel or in cottages near 
it which he rented, to entertain for a season visitors at the 
watering place. In holding that he was not an innkeeper 
Judge Nesbet said: "It is because inns and innkeepers have 
to do with the travelling pubUc — strangers — and that for brief 
periods, and under circumstances which render it impossible 
for each customer to contract for the terms of his entertain- 
ment, that the law has taken them so strictly in charge. And 
it is because of the compulsion innkeepers are under, to afford 
entertainment to anybody, that the law has clothed them 
with extraordinary privileges. Now, under this (it is sub- 
mitted), correct legal view of innkeepers, was the plaintiff 
in this case, an innkeeper? Was that his business? His 
business was to rent his houses to families or persons who 
might contract with him for their occupancy. They are not 
his guests, they are beyond dispute, his tenants, and he their 
landlord. His business was, to furnish board, lodging and at- 
tention. But to whom? To the wayfaring world? No. But 
to persons who might resort to his healthful fountains and 
salubrious locahty, for a season, that is, for the fall and sum- 
mer months. They were not his guests for a day, or night, or 
week, but his lodgers or boarders for a season. They were not 
chargeable according to any tariff of rates, fixed by law, but 
according to contract, varied, beyond doubt, according to time, 
amount of accommodation, and other circumstances. These 
are not the characteristics of the business of innkeeping, but 
indicate a boarding house. As well might every private board- 
ing house in the State, be adjudged an inn or a tavern, as this 
party's establishment. The object for which people are stated 
in the declaration, to have visited the springs, necessarily for- 
bids the idea of their being travellers, and of plaintiff's house 
being a tavern. It was health, in the use of the medicinal 

i« Bonner v. Welborn, 7 Ga. 296 (1849). 

[15] 



§ 14.] Innkeepers. [Chap. II. 

waters. That object indicates abiding — permanency of loca- 
tion, for a season, at least. These waters cannot cure by seven 
draughts; or Uke the waters of Jordan, by seven washings. "^^ 

But the fact that a person receives those who are not 
transient guests does not prevent his being an innkeeper. 
Though in its origin the business of an innkeeper was to sup- 
ply the needs of travellers, yet once in the business an innkeeper 
will naturally be quite willing to do a profitable business with 
other persons. An innkeeper will ordinarily receive and care 
for any proper person who applies, even though, not being a 
traveller, he could not demand such reception as a legal right; 
and such reception of guests does not work a change of employ- 
ment. One who keeps a house of entertainment for travellers 
is none the less an innkeeper because he also receives other 
persons." 

Even if the innkeeper caters for permanent guests, and makes 
his inn attractive for them, he is none the less an innkeeper 
if he professes also to supply the needs of travellers, as most 
hotel keepers do. Thus the facts that a house stands upon 
enclosed grounds which are reserved for the exclusive use of 
guests, that the gates are closed at night, and that the house 
is thus rendered attractive as a pleasure resort and guests are 
thereby induced to remain a considerable time, do not prevent 
the house from being an inn if it is held out as a place of en- 
tertainment for travellers.^^ And even in a case where the chief 
attraction of a hotel was a mineral spring connected with it, and 
it did not appear that persons resorted to the hotel except such 
as desired to use it as a watering place, it was assumed without 
argument that the hotel was an inn.^" 

" See to the same effect dicta in Kisten v. Hildebrand, 9 B. Mon. (Ky.) 
72, 48 Am. Dec. 416 (1848); Southwood v. Myers, 3 Bush (Ky.), 681 (1868). 

18 Wintermute v. Clark, 5 Sandf. (N. Y.) 242 (1851). Conversely a keeper 
of a boarding house may entertain transient guests. Kisten v. Hildebrand, 
9 B. Mon. (Ky.) 72, 48 Am. Dec. 416 (1848). 

19 Fay V. Pacific Improvement Co., 93 Cal. 253, 26 Pac. 1099, 28 Pac. 943, 
27 Am. St. Rep. 198, 16 L. R. A. 188 (1891). 

2» Willis V. McMahon, 89 Cal. 156, 26 Pac. 649 (1891). 
[16] 



Chap. II.] The Nature of an Inn. [§ 16. 

§ 15. The innkeeper supplies all needs of a traveller. 

The innkeeper supplies all the entertainment which the weary- 
traveller actually needs on his road; which in lowest terms is 
food, shelter and protection.^! If the keeper of a house of en- 
tertainment does not undertake to furnish either of these ne- 
cessities he is not a common innkeeper; and this requirement 
distinguishes inns from many similar houses of pubhc enter- 
tainment. Thus a house which does not supply lodging is not 
an inn; and this rule excludes from among inns a restaurant 
or eating house.^^ On the same principle a coffee house ^^ or a 
drinking saloon ^* is not an inn. And for the same reason a 
house that furnishes only lodging without food, like a lodging 
house,^^ or an apartment hotel ^* or a sleeping car ^' is not an 
inn. 

§ 16. House conducted on the "European plan." 

If all elements of entertainment required by a traveller are 
furnished him by the host the house may be an inn, notwith- 
standing they are independently furnished and separately 
charged. Thus a hotel is no less an inn though it is conducted 

21 Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657 (1867); Walling 
V. Potter, 35 Conn. 183 (1868); Wintermute v. Clark, 5 Sandf. (N. Y.) 242 
(1851); CromweU v. Stephens, 2 Daly (N. Y.), 15 (1867); Dickerson v. 
Rogers, 4 Humph. (Tenn.) 179, 40 Am. Dec. 642 (1843); Thompson v. Lacy, 
3 B. & Aid. (Eng.) 283 (1820). 

22 Sheffer v. Willoughby, 163 lU. 518, 45 N. E. 253, 34 L. R. A. 464, 
affirming 61 lU. App. 263 (1896); Block v. Sherry, 43 N. Y. Misc. 342, 87 
N. Y. Supp. 160 (1904); Carpenter v. Taylor, 1 Hilt. (N. Y.) 193 (1856); 
Regina v. Rymer, 2 Q. B. D. 136, 46 L. J. M. C. 108 (Eng. 1877); Dunn 
V. Bean, Quebec Rep. 11 Super. Ct. 538 (1897). 

23 Doe V. Laming, 4 Camp. (Eng.) 73, 77 (1814). 

24 People V. Jones, 54 Barb. (N. Y.) 311 (1863); Kelly v. New York Ex- 
cise Comrs., 54 How. Pr. (N. Y.) 327 (1877); Pabe v. Myers, 5 Ohio S. & 
C. P. Deo. 578 (1895); Regina v. Rymer, 2 Q. B. D. 136, 46 L. J. M. C. 108 
(Eiig. 1877). 

25 Kelly V. New York Excise Comrs., 54 How. Pr. (N. Y.) 327 (1877); 
CromweU v. Stephens, 2 Daly (N. Y.), 15 (1867); Parker v. Flint, 12 Mod. 
(Eng.) 254 (1701). 

2« Davis V. Gay, 141 Mass. 531, 6 N. E. 549 (1886). 
27 PuUman Palace Car Co. v. Smith, 73 111. 360, 24 Am. Rep. 258 (1874); 
post § 342. 

[17] 



§ 17.] Innkeepers. [Chap. II. 

on the European plan, so called; the fact that food is sepa- 
rately obtained and paid for, and the guest may procure his 
food elsewhere if he chooses, does not alter the legal character 
of the house.^* 

In the case of such a hotel it usually happens that food is 
supphed in a restaurant, connected with the hotel, but open to 
everyone, not merely to guests of the hotel. It is this connec- 
tion of the restaurant with the hotel as part of the same estab- 
lishment that makes the hotel an inn. The hotel keeper can- 
not avoid the responsibility of an innkeeper by proving that 
the restaurant is in fact conducted by an independent person. 
If the hotel is held out to the public as having a restaurant 
connected with it and forming part of it, it is an inn, and not 
a mere lodging house.^* But, on the other hand, if there is no 
holding them out as parts of the same establishment, the fact 
that an independent restaurant is conducted under the same 
roof and is resorted to by lodgers, does not make a lodging 
house an inn; '" nor does the fact that the keeper of the lodging 
house is in the habit of sending out to procure cooked food for 
his guests at their request.^^ 

§ 17. The innkeeper need not supply all the desires of a guest. 

Though the inn is a house which professes to supply all that a 
traveller actually needs on his journey, it need not be perfectly 
equipped to supply everything that he might desire. Thus, one 
may keep an inn though he does not profess to supply accom- 
modation for horses, ^^ or to sell wine or liquor.'^ 

28 Bullock V. Adair, 63 111. App. 30 (1895); Johnson v. Chadbourn Fur- 
nace Co., 89 Minn. 310, 94 N. W. 874 (1903); Krohn v. Sweeney, 2 Daly 
(N. Y.), 200 (1867); McClure v. Krumbholz, 9 Pa. Dist. R. 544, 31 Pittsb. 
Leg. J. (N. S) 3, 14 York Leg. Rec. 31 (1900). 

29 Johnson v. Chadbourn Furnace Co., 89 Minn. 310, 94 N. W. 874 (1903). 

30 Cromwell v. Stephens, 2 Daly (N. Y.), 15 (1867). 

31 KeUy V. New York Excise Comrs., 54 How. Pr. (N. Y.) 327 (1877). 
32Kisten v. Hildebrand, 9 B. Mon. (Ky.) 72, 48 Am. Dec. 416 (1848); 

Commonwealth v. Wetherbee, 101 Mass. 214 (1869). 

33Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657 (1867); People 

[18] 



Chap. II.] The Nature of an Inn. [§ 19. 

§ 18. The innkeeper is the proprietor of an inn. 

The innkeeper is the person who on his own account is carry- 
ing on the business of an inn. In other words, he is the pro- 
prietor of the establishment. The person actually employed 
as manager, though he has the whole direction of the enterprise, 
is not an innkeeper if he is acting on behalf of someone else. 
Thus the salaried manager of a hotel belonging to a corporation 
is not to be held responsible as an innkeeper; the corporation 
is the innkeeper.''* 

On the other hand, the real owner of the enterprise, the per- 
son in actual charge of it, cannot escape responsibiUty by 
taking out a Hcense to conduct an inn in the name of another, 
or by placing another's name on the sign or the advertisements 
as the ostensible innkeeper. In spite of such devices, the per- 
son who actually conducts the inn will be held as the inn- 
keeper.^* 

§ 19. How the innkeeper's profession is made. 

The profession of readiness to serve the pubUc need not be 
made in any particular way; it is enough that by word or act 
the innkeeper makes pubhc his intention to become such. It 
has been usual, particularly in former times, to advertise his 
house by hanging out a sign; but it is not essential to a man's 
being an innkeeper that he. should do so. If he in fact car- 
ries on the business pubHcly as innkeeper he will be held as 

V. Murphy, 5 Parker Cr. R. (N. Y.) 130 (1861); Curtis v. State, 5 Ohio, 324 
(1832). 

34 Dixon V. Birch, L. R. 8 Ex. 135, 42 L. J. Ex. 135, 28 L. T. 360, 28 W. 
R. 443 (Eng. 1873). 

85 McKay v. Brown, 5 Can. L. J. 91 (1859). It is to be noticed that an 
employee who is not the real innkeeper but who conducts the inn for an- 
other, being paid a salary, may be indicted for keeping an inn without a 
license. Winter v. State, 30 Ala. 22 (1857). The question is a different one 
from that presented in the text; for any person may be indicted who in fact 
carries on the business, though he does it on behalf of another, who alone 
is subject to the liabilities of an innkeeper and liable to a civil action. He 
is taking part in the commission of a misdemeanor, and is therefore crimi- 
nally responsible as principal. 

[19] 



§ 19.] Innkeepers. [Chap. II, 

such, although he never displayed a sign.^^ The profession 
may be made by any method of soliciting the patronage of the 
public; ^^ as by advertising, by keeping a public register, and 
by running a coach to a railroad station.^* 

What acts are sufficient to justify a finding that a man is 
an innkeeper is a question which has often been a subject of 
judicial decision. In a case in California the keeper of the 
"What Cheer House" insisted that his house was a lodging 
house and not an inn; because, as he said, the eating depart- 
ment was distinct from the lodging department. It appeared 
that in the basement of the "What Cheer House," and con- 
nected with it by a stairway, there was a restaurant, which was 
conducted by the defendant and two other persons jointly, and 
that the three shared the profits. The court held that the 
" What Cheer House " was an inn.^^ In the course of his opinion 
Judge Rhodes said: "Where a person, by the means usually 
employed in that business, holds himself out to the world as 
an innkeeper, and, in that capacity, is accustomed to receive 
travellers as his guests, and solicits a continuance of their pat- 
ronage, and a traveller relying on such representations goes to 
the house to receive such entertainment as he has occasion for, 
the relation of innkeeper and guest is created, and the innkeeper 
cannot be heard to say that his professions were false, and that 
he was not in fact an innkeeper. The rules regulating the re- 
spective rights, duties and responsibiUties of innkeeper and 
guest have their origin in consideration of public pohcy, and 
were designed mainly for the protection and seciirity of trav- 
ellers and their property. ' They would afford the traveller but 
poor security if, before venturing to intrust his property to one 
who by his agents, cards, bills, advertisements, sign, and all the 

36 Anonymous, Godbolt, 345, pi. 440 (Eng. 1623); Lyon v. Smith, Morris 
(la.), 184 (1843); Diclierson v. Rogers, 4 Humph. (Tenn.) 179, 40 Am. Dec. 
642 (1843). 

3' Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657 (1867). 

38 Fay V. Pacific Improvement Co., 93 Cal. 253, 26 Pac. 1099, 28 Pac. 
943, 27 Am. St. Rep. 198, 16 L. R. A. 188 (1891). 

39 Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657 (1867). 

[20] 



Chap. II.] The Nature of an Inn. [§ 20. 

means by which publicity and notoriety can be given to his 
business, represents himself as an innkeeper, he is required to 
inquire of the employees as to their interest in the establishment, 
or take notice of the agencies or means by which the several 
departments are conducted. The same considerations of pub- 
lic policy that dictated those rules demand that the innkeeper 
should be held to the responsibilities which, by his representa- 
tions, he induced his guest to believe he would assume. We 
think the jury were fully warranted by the evidence in finding 
that the ' What Cheer House ' was an inn. " 

In a later case in the same State the court dealt with a sim- 
ilar question as follows: ^^ "We think that the evidence in this 
case is full and complete to the point that the 'Hatel Del 
Monte' was a pubhc inn. It not only had a name indicating its 
character as such, but it was also shown that it was open to 
all persons who have a right to demand entertainment at a 
public house; that it solicited pubhc patronage by advertising 
and in the distribution of its business cards, and kept a public 
register in which its guests entered their names upon arrival, 
and before they were assigned rooms; that the hotel, at its own 
expense, ran a coach to the railroad station for the purpose of 
conveying its patrons to and from the hotel; that it had its 
manager, clerks, waiters, and in its interior management all 
the ordinary arrangements and appearances of an hotel, and 
the prices charged were for board and lodging. These facts 
were certainly sufficient to justify the court in finding, as it 
did, that the appellant was an innkeeper. " 

§ 20. Failure to procure a license. 

The failure of an innkeeper to procure a license, as required 
by law, does not prevent him from being an innkeeper; *' 

*" De Haven, J., in Fay v. Pacific Improvement Co., 93 Cal. 253, 26 Pac. 
1099, 28 Pac. 943, 27 Am. St. Rep. 198, 16 L. R. A. 188 (1891). 

" Lanier v. Youngblood, 73 Ala. 587 (1883); Lyon v. Smith, Morris (la), 
184 (1843); Norcross v. Norcross, 53 Me. 163 (1865); Atwater v. Sawyer, 
76 Me. 539, 49 Am. Rep. 634 (1884); State v. Wynne, 1 Hawks (N.C.),451 
(1821) ; Dickerson v. Rogers, 4 Humph. (Tenn.) 179, 40 Am. Dec. 642 (1843). 

[21] 



§ 22.] Innkeepers. [Chap. II. 

nor does his act of taking out a license in the name of an- 
other.^2 



§ 21. Carrying on of other business. 

An innkeeper may at the same time and on the same or 
neighboring premises carry on a different business, which though 
similar to that of the innkeeper is not identical with it. For 
instance, an innkeeper who is bound, as such, to have a stable 
for the accommodation of the horses of his guests, may in the 
same stable carry on the business of livery stable keeper. If, 
under those circumstances, a horse is given to the innkeeper it 
would be a question for the jury whether it was received by 
him as innkeeper or keeper of a hvery stable.*^ In the same 
way, an innkeeper may estabUsh under the same roof as his inn 
a restaurant for the accommodation of persons who are not 
his guests. If the restaurant is entirely distinct from the 
rooms proper to the inn, a person who resorts merely to the 
restaurant is not a guest. So where an innkeeper had the 
refreshment bar at the side of his building with a separate 
entrance it was held that one served there was not a guest.** 
On this principle one who, not being a lodger in a hotel on the 
European plan, resorts to the restaurant connected with the 
hotel for food is not a guest.*^ 

§ 22. Name given to inn is immaterial. 

The innkeeper cannot escape responsibility by giving some 
other name than inn or hotel to his house. So where the owner 
holds himself out as ready to supply all travellers with the food 
and drink they require, he is an innkeeper, though he call his 
house a " boarding house, " *® or a " coffee palace. " " On the 

12 Schermerhorn v. Tripp, 2 Caines (N. Y.), 108 (1804); McKay v. Brown, 
5 Can. L. J. 91 (1859). 

"Mason v. Thompson, 9 Pick. (Mass.) 280 (1830). 
"Regina v. Rymer, 2 Q. B. D. 136, 46 L. J. M. C. 108 (Eng. 1877). 
"Krohn v. Sweeney, 2 Daly (N. Y.), 200 (1867). 
"State V. Stone, 6 Vt. 295 (1834). 

« Miller v. Federal Coffee Palace, 15 Victorian Law R. 30 (1889). 
[22] 



Ghap. II.] The Nature op an Inn. [§ 22. 

other hand, calling a house a "hotel" does not make it an inn. 
The " International Hotel, " so called, being really a boarding 
house and restaurant, will not be held an inn merely because 
of its name.'** 

In this country the words hotel and tavern are usually used 
as synonymous with inn; and a hotel or tavern which is main- 
tained for the accommodation of travellers is an inn.^^ 

« Carpenter v. Taylor, 1 Hilt. (N. Y.) 193 (1856). 

« Commonwealth v. Shortridge, 3 J. J. Marsh. (Ky.) 638 (1830); City of 
St. Louis V. Siegrist, 46 Mo. 593 (1870); Town of Crown Point Poor Over- 
seers V. Warner, 3 Hill (N. Y.), 150 (1842); Cromwell v. Stephens, 2 Daly 
(N. Y.), 15 (1867); Taylor v. Monnot, 4 Duer (N. Y.), 116 (1854); People 
V. Jones, 54 Barb. (N. Y.) 311 (1863); Jones v. Osbom, 2 Chit. (Eng.) 484 
(1785). Where "tavern" is used as a synonym for liquor saloon or drink- 
ing shop, it is of course not the same as ah inn. Regina v. Rymer, 2 Q. B. D. 
136, 46 L. J. M. C. 108 (Eng. 1877). 



[23] 



CHAPTER III, 

OTHER HOUSES OF ENTERTAINMENT. 



31. Other public houses notln pub- 

lic calling. 

32. Boarding houses. 

33. Livery stables. 



§ 34. Lodging and apartment 
houses. 

35. Restaurants. 

36. Theatres. 

37. Sleeping cars and steamboats. 



§31. Other public houses not in public calling. 

Similar in many respects to inns are other houses maintained 
for use of the public; but none of them ministers to any abso- 
lute public necessity, and none of them, therefore, is regarded 
as engaged in a pubhc calhng. No part of the law of public 
calUngs, therefore, applies to these establishments; and the 
questions examined in Title II of this work are inapplicable to 
them. Furthermore, the law regulating the extent of hability 
of innkeepers is, as we shall see, in many respects peculiar, and 
does not apply to keepers "of other public houses. Nor does 
any keeper of such a house have a lien at common law though, 
as will be seen, a hen has been given to some of them by statute. 
But in other respects the same principles of law apply to 
these houses of entertainment as to inns. 

In the following pages cases involving other public houses, 
not inns, will be treated in their place, noting in every case of 
importance the nature of the house involved, and the peculiar 
rules of liability of each house of the sort will be treated in a 
separate chapter.^ In this chapter the principal houses of the 
sort wiU be enumerated and their nature stated. 

§ 32. Soarding houses. 
The distinction between an innkeeper and a boarding-house 

1 Post, chapters 23-26. 
[24] 



Chap. III.] Other Houses of Entertainment. [§ 34. 

keeper is that the latter, not having made a profession of his 
services to the public, is at liberty to choose his guests, and to 
make special arrangements with them.^ Since the boarding 
house is particularly designed for a residence of some perma- 
nence there is time for the parties to come to a mutually sat- 
isfactory agreement by consultation, and there is therefore no 
need for the law to protect the boarder.' But though designed 
for permanent boarders, a boarding house is none the less such 
because transient guests are entertained there.^ 

The trade of boarding-house keeper may be regulated by 
statute, in exercise of the police power of the State.^ The 
keeper is frequently given a lien by statute.® The extent of 
the boarding-house keeper's Uability will be examined in a 
later chapter.'' 

§ 33. Livery stables. 

A livery stable is a place where horses are groomed, fed, and 
hired and vehicles are let.* It is not altogether a place for 
pubUc entertainment, since an important part of its business 
is the letting to the pubHc of its own horses and vehicles. It 
may however be regulated by statute, and it is often given a 
statutory lien. 

§ 34. Lodging and apartment houses. 

Lodging and apartment houses differ from inns in that they 
furnish lodging only, and not food. They differ from each 
other in that the control of the lodging house is kept by the 
proprietor or keeper of it, who (like the innkeeper) licenses the 

2 Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657 (1867); BeaU v. 
Beck, Fed. Cas. No. 1161, 3 Cr. C. C. 666 (Dist. Col. 1829); Willard v. Rein- 
hardt, 2 E. D. Smith (N. Y.), 148 (1853); Commonwealth v. Cuncannon, 
3 Brewst. (Pa.) 344 (1869). 

3 Mamiing v. Wells, 9 Humph. (Tenn.) 746, 51 Am. Dec. 688 (1849). 
* Kisten v. Hildebrand, 9 B. Mon. (Ky.) 72, 48 Am. Dec. 416 (1848). 
6 Post, §41. 

« Post, § 297. 

''Post, chapter 21. 

8 Williams v. Garignes, 30 La. Ann. 1094 (1878). 

[25] 



§ 37.] Innkeepers. [Chap. III. 

lodger to occupy his room; while the apartment is leased to 
the occupant of it, who gets the exclusive possession and be- 
comes a tenant.® The lodging house is a public house, may be 
regulated by statute, and is often given a lien by statute. 

§ 35. Restaurants. 

A restaurant differs from an inn in that it furnishes only food, 
and not lodging or shelter. The keeper of a restaurant is not 
an innkeeper, nor is he engaged in a public employment.^" The 
extent of Uability of the keeper of a restaurant will be exam- 
ined later." 

§36. Theatres. 

A public theatre differs from an inn both in the nature of 
the entertainment furnished, and also in that what is furnished 
is not a necessity of life. For this reason the manager of a 
theatre is not engaged in a public employment. As Sir James 
Mansfield said,*^ " theatres are not absolute necessaries of life, 
and any person may stay away who does not approve of the 
manner in which they are managed. " "Theatres are not nec- 
essaries of Hfe, and the proprietors of them may manage their 
business in their own way."" 

Theatres are usually regulated by statute." The extent of 
Uability of the manager wiU be considered later.^^ 

§ 37. Sleeping cars and steamboats. 

Certain cars on railroad trains have characteristics similar 
to inns; for instance, sleeping cars and dining cars. But 

9 Toms V. Luckett, 5 C. B. (Eng.) 23, 38 (1847); Davis v. Gay, 141 Mass. 
531, 6 N. E. 549 (1886); Shearman v. Iroquois H. & A. Co., 42 N. Y. Misc. 
217, 85 N. Y. Supp. 365 (1903). 

"La Salle R. & O. House v. McMasters, 85 lU. App. 677 (1899); Harris 
V. Childs' U. D. Co., 84 N. Y. Supp. 260 (1903). 

" Post, chapter 24. 

12 Clifford V. Brandon, 2 Camp. (Eng.) 358, 368 (1809). 

13 Pearce v. Spalding, 12 Mo. App. 141 (1882). 
" Post, § 325. 

16 Post, chapter 25. 

[26] 



Chap. III.] Other Houses of Entertainment. [§ 37. 

though analogous to inns, they lack the essential feature of 
being provided for the entertainment of the traveller at stop- 
ping places on his journey. The rights, duties, and obhga- 
tions of sleeping car companies are considered later. ^^ A 
steamboat is not an inn, though it supplies board and lodg- 
ing as well as transportation." It is a common carrier, and 
the law appl3dng to it is to be sought in the law of common 
carriers of passengers. 

i« Post, chap. 27. 

"Clark V. Burns, 118 Mass. 275 (1875). 



[27] 



§ 41.] Innkeepers. [Chap. IV. 



CHAPTER IV. 

REGULATION AND LICENSE OF PUBLIC HOUSES. 



41. Regulation of public houses 

permitted. 

42. Licenses. 

43. Licenses usually granted by 

local administrative body. 

44. Corruption in granting or re- 

fusing license criminal. 



45. License board compelled to act 

by mandamus. 

46. Discretion of board cannot be 

controlled. 

47. Remedy for wrong exercise of 

discretion. 

48. Punishment for violation of the 

license law. 



§41. Regulation of public houses permitted. 

The carrying on of any business may be regulated by the 
State, so far as such regulation is an exercise of the pohce power. 
The keeping of any house of entertainment as a matter of busi- 
ness may therefore be regulated in such a way as to secure the 
health and morals of the commimity.* So a sailors' boarding 
house may be regulated by law. "The State, in its sovereign 
capacity, as 'parens patriae, is charged with the duty of guarding 
the interests of the community by protecting the lives, preserv- 
ing the health and morals, and promoting the happiness of its 
subjects; and, as a corollary thereto, any employment that 
tends to subvert the obhgation thus imposed may be regulated 
or prohibited by the Legislative Assembly. " ^ On the same 
principle are justified the laws regulating places of pubUc amuse- 
ment.^ 

1 Commonwealth v. Muir, 38 Wkly. Notes Cas. (Pa.) 328 (1896). 

2 Moore, C. J., in White v. Holman, 44 Or. 180, 74 Pac. 933 (1904). 
sGreeneberg v. Western Turf Assoc, 140 Cal. 357, 73 Pac. 1050 (1903); 

People v. King, 110 N. Y. 418, 18 N. E. 245, 6 Am. St. Rep. 389, 1 L. R. A. 
293 (1888); Grannan v. Westchester Racing Assoc, 16 N. Y. App. Div. 8, 
44 N. Y. Supp. 790 (1897). 
[28] 



Chap. IV.] License of Public Houses. [§ 43. 

In the case of an inn, an additional power of regulation exists 
in the public nature of the innkeeper's employment. "It is a 
matter of great public concernment that those who keep houses 
of public entertainment should be fit and proper persons, that 
the persons and property of travellers may be safe; that they 
should be required to make suitable provision for their accom- 
modation, and their rates be known and fixed. " * 

Regulations of houses of public entertainment are therefore 
common, and will be found collected and commented upon in 
a later chapter. 

The right to keep an inn was unrestricted at common law. 
The right to maintain an inn has never been regarded as a fran- 
chise, and neither king's patent nor act of Parliament could give 
the subject more right to become an innkeeper than the law 
already gave him.^ 

§42. Licenses. 

The power to regulate inns is frequently exercised by requir- 
ing them to be licensed. This is a proper exercise of the power 
of regtilation, and a license may be required by any body upon 
which the power to make regulations has been conferred." 
§ 43. License usually granted by local administrative body. 

The granting of licenses to imikeepers or other keepers of 

i Ormond, J., in State v. Cloud, 6 Ala. 628, 630 (1844). 

5 Rex V. Collins, Palmer, 367, 373, 2 RoUe, 345 (1623); Stephens v. Wat- 
son, Salk. 45 (1701). An alehouse must be licensed by 5 & 6 Ed. 6, c. 25; 
but "this statute extends not to inns, for they are for lodging of travellers; 
but if an inn degenerate to an alehouse by suffering disorderly tippling, etc., 
it shall be deemed as such. " Stephens v. Watson, supra. Two of the judges 
in Rex v. Collins, supra, thought that "in ancient times a common innkeeper 
should have common license in eyre, " and a license of the time of King John 
was cited; but this was shown to have been a license hospitari terram, that 
is, to farm out the land of a tenant in capita. 

8 As a municipal corporation. RusseUviUe v. White, 41 Ark. 485 (1883). 
In some States all inns must be licensed. Lord v. Jones, 24 Me. 439, 41 
Am. Dec. 391 (1844); State v. Fletcher, 5 N. H. 257 (1830); State v. Stone, 
6 Vt. 295 (1834). In others a license is necessary only if liquor is sold. 
People v. Murphy, 5 Parker Cr. R. 130 (N. Y. 1861); McClure v. Krumb- 
holz, 9 Pa. Dist. R. 544, 31 Pittsb. Leg. J. (N. S.) 3, 14 York Leg. Rec. 31 
(Pa. 1900). 

[29] 



§ 44.] Innkeepers. ^ [Chap. IV. 

houses of public entertainment is usually confided to some local 
administrative body, such as a county court or Hcensing board, 
or the mayor or aldermen of a city. The act of such a board 
is an administrative rather than a legislative act, and the power 
to Ucense conferred upon it is therefore not an unconstitutional 
delegation of power. Where an appeal lies from such a body 
to a court, it is not a judicial but an administrative appeal, and 
the court does no more than reexamine the evidence already 
offered to see that the board used its discretion fairly.'' 

§ 44. Corruption in granting or refusing license criminal. 

Such a body in granting or refusing a license is exercising a 
public duty, and may be indicted if it acts corruptly; but it 
cannot be called to account for an error committed hona fide. 
Thus where a license had been erroneously granted to a person 
to sell liquors at an inn, and the commissioners were indicted 
for granting it, they were held not guilty of a crime, where the 
evidence did not show actual corruption.* Allen, J., said: 

"The duties devolved upon commissioners of excise by the 
act . . . call for the exercise of discretion and judgment, 
and are, to some extent, discretionary and judicial. The com- 
missioners cannot be coerced in the exercise of their discretion, 
by mandamus or otherwise, and for a mere mistake are not 
hable either civilly or criminally. But for an unlawful and 
corrupt exercise of the powers vested in them they are answer- 
able criminally. They cannot willfully and knowingly violate 
the law with impimity ; and while they are only responsible for 
good faith and integrity, they cannot from corrupt motives 
either grant or withhold a license improperly, and shield them- 
selves imder the judicial character of their office. 

"An indictment for willfully and corruptly granting a hcense 
to a person to sell spirituous Uquors as an innkeeper, the com- 
missioners knowing that the applicant was not a man of good 
moral, character, nor a person of sufficient ability to keep a 

'In re Stedman, 14 Phila. 376, 37 Leg. Int. 444 (Pa. 1880). 
8 People V. Jones, 54 Barb. (N. Y.) 312 (1863). 
[30] 



Chap. IV.] License of Public Houses. [§ 45. 

tavern, was sustained, on demurrer, in The People v. Norton,' 
and the reasoning of Judge Willard is entirely conclusive. . . . 
The offence consists in the motive and intent with which the 
act was done. The mere granting of a license which a court or 
jury might say ought not to have been granted, is not an of- 
fence; but the jury must be able to say, from the evidence, 
that the commissioners, or such as are pronoimced guilty, knew, 
at the time, that it was not a proper case for a license under 
the statute, and nevertheless granted it in willful disregard of 
the statute ; that is, that they knowingly and purposely disre- 
garded the statute. If they acted in good faith, although er- 
roneously, they cannot be punished. " 

§ 45. License board compelled to act by mandamus. 

In consequence of its public duty to pass on licenses, a board 
which refuses to act on licenses altogether may be compelled 
to do so by mandamus.^" And it must act bona fide on the 
question whether a certain applicant is entitled to a license or 
not. It cannot prohibit a business under the guise of Ucensing 
it. As Simpson, J., well said in City of Louisville v. Kean : " 

"Taverns are necessary' for the convenience of the travelling 
pubUc. They are authorized, and their privileges and duties 
prescribed by the law. The county court is the tribimal under 
the general law to decide on the propriety of their existence at 
the places proposed, and also of the quaUfications of the apph- 
cants. But this power is not unlimited and uncontrollable. 
It must be exercised according to law; otherwise, it might be 
so exercised as wholly to defeat the legislative intention in re- 
gard to such houses, and to prevent their existence altogether. 

"They have not the right of prohibition, but only the right 
to decide how many taverns, having the privilege of selling 
spirituous liquors, are required within the city for the public 

8 7 Barb. (N. Y.) 477 (1849). The learned judge also cited to the same 
effect, State v. McDonald, 4 Harr. (Del.) 555 (1847), and Russell on Crimes, 
116. 

10 City of Louisville v. Kean, 18 B. Men. (Ky.) 9 (1856). 

11 18 B. Mon. (Ky.) 9 (1856). 

[31] 



§ 46.] Innkeepers. [Chap. IV. 

accommodation and convenience, and whether the apphcants 
have the proper legal qualifications to entitle them to a hcense. 
The existence of such taverns is not only sanctioned but deemed 
necessary by the general law, and the city authorities have no 
power to prohibit their existence within the city. ... It 
would be a willful abuse of discretion to refuse such a hcense 
upon the ground that they intended to prohibit altogether the 
sale of spirituous liquors by retail within the city, knowing at 
the same time that they had not the legal power to do it, so far 
as taverns were concerned. " 

§ 46. Discretion of board cannot be controlled. 

A hcensing board has a discretion, however, in granting 
Ucenses which ordinarily cannot be controlled, by writ of man- 
damus or otherwise. ^^ In one case, however, it was suggested 
that "a denial of an application for a hcense may be such as to 
constitute an abuse of power, and be subject to review and cor- 
rection by mandamus. " " But this suggestion must be con- 
fined to cases where the board either refuses to act altogether 
or so grossly abuses its discretion as to be clearly corrupt; or 
perhaps where it acts imder a clear mistake of law. This is 
doubtless the ground on which to rest a late case in Oregon, in 
which the court allowed the writ though, under the circum- 
stances, this amounted to a control over the court's discretion. 
The petitioners had been refused by the board of commission- 
ers a license to maintain a sailors' boarding house. Only one 
such hcense was granted by the board; and the petitioners' 
apphcation was refused, not because he was found an unsuit- 
able person, but because the board deemed one such house 
enough. The court having decided that the board could not 

i'lnns: City of Louisville v. Kean, 18 B. Men. (Ky.) 9 (1856); State v. 
Stone, 6 Vt. 295 (1834). Theatres: People ex relatione Cumisky v. Wurster, 
14 N. Y. App. Div. 556, 43 N. Y. Supp. 1088 (1897); People ex relatione 
Armstrong v. Murphy, 65 N. Y. App. Div. 123, 72 N. Y. Supp. 473 (1901); 
People ex relatione Park Circle Amusement Co. v. Board of Police, 36 N. Y. 
Misc. 89, 72 N. Y. Supp. 583 (1901). 

13 People V. Wurster, 14 N. Y. App. Div. 556, 43 N. Y. Supp. 1088 (1897). 
[32] 



Chap. IV.] License of Public Houses. [§ 48. 

legally limit the number of such houses to one, granted a per- 
emptory writ to compel the board to grant petitioners' license.*** 
The court said that it was " possible that the petitioners are un- 
worthy and incompetent, and therefore not entitled to a li- 
cense ; " but since the record showed that the refusal was based 
on the illegal desire of the board to monopoUze business, the 
court affirmed the judgment for a peremptory writ to issue. 

The fact that the discretion of different boards in various 
parts of the State may be differently exercised^ and the statute 
thus operate unequally in different parts of the State, is no 
legal objection to the exercise of such discretion.** 

§ 47. Remedy for wrong exercise of discretion. 

A remedy may be provided by statute in case a license is 
wrongly refused ; *® but even if no remedy is provided, a person 
who is refused a license, though the refusal was legally wrong, 
cannot act without the license if a statute requires the license." 

§ 48. Punishment for violation of the license law. 

For iUegaUy keeping an inn or other house of entertainment 
without a license, or otherwise in violation of statutory regu- 
lation, the ordinary method of ptmishment is by indictment." 
The punishment may be inflicted as often as the offence is re- 
peated.*^ It is no defence that the defendant on such an in- 
dictment was ignorant of the fact that he had no license, ^^ or 
that he carried on the business on account of an employer and 
not for himself.^* 

Where a license is required before carrying on the business of 
innkeeper, one carrjong on such business without a license can- 

" White V. Hohnan, 44 Or. 180, 74 Pac. 933 (1904). 

16 Bancroft v. Dumas, 21 Vt. 456 (1849). 

18 Sights V. YarnaUs, 12 Grat. (Va.) 292 (1855). 

" State V. Stone, 6 Vt. 295 (1834). 

18 State V. Cloud, 6 Ala. 628 (1844) ; State v. Fletcher, 5 N. H. 257 (1830). 

le State v. Johnson, 65 Me. 362 (1876). 

20 Commonwealth v. Keatley, 82 S. W. 232 (Ky. 1904). 

21 Winter v. State, 30 Ala. 22 (1857). 

3 [33] 



§ 48.] Innkeepers. [Chap. IV. 

not sue for damage to such business,^^ or recover compensation 
for board furnished,^^ or establish a lien on property of the 
guest.^* 

"When a license is required for the protection of the public, 
and to prevent improper persons from engaging in a particular 
business, and the license is not for revenue merely, a contract 
made by an unUcensed person in violation of the act is void. " ^* 
But failure to obtain a license will not protect the innkeeper 
from the responsibihties of his occupation,^^ as, for instance, 
from indictment for exacting more than the estabUshed rates.^'^ 

22 Bonner v. Wellborn, 7 Ga. 296 (1849); Trimmer v. Hiscock, 27 Hun 
(N. Y.), 31 (1882). The failure of the plaintiff to procure a license must, 
however, be set up by the defendant, or he cannot take advantage of it. Ibid. 

23 Randall v. TueU, 89 Me. 443, 36 Atl. 910 (1897). 

24 Stanwood v. Woodward, 38 Me. 192 (1854). 

25 Foster, J., in Randall v. TueU, supra. 

28 Dickerson v. Rogers, 4 Humph. (Tenn.) 179, 40 Am. Dec. 642 (1843). 
2' State V. Wynne, 1 Hawks (N. C), 451 (1821). 



[34] 



Chap, v.] Pebsons in Public Employment. 



[§51. 



TITLE II. 

THE PUBLIC DUTY OF INNKEEPERS. 

CHAPTER V. 



GENERAL PRINCIPLES REGULATING THE DUTY OF PERSONS IN 
THE PUBLIC EMPLOYMENT. 



51. The law of public employment. 
62. The innkeeper is in a public 

employment. 
53. The duty to receive guests. 
64. The duty to provide adequate 

facilities. 



§ 55. The duty to refrain from dis- 
crimination. 

56. What amounts to unreason- 

able discrimination. 

57. The duty to make reasonable 

charges. 

58. The duty to receive strangers. 



§ 51. The law of public employments. 

From the very beginning of our law it has been recognized 
that some kinds of business were of special importance to the 
public, and that all persons engaged in such business owed the 
public certain duties. No one could be compelled to enter upon 
the employment; but if he chose to do so, he thereby under- 
took the performance of the pubUc duties connected with it. 
The property which he devotes to the public emplojnnent is 
"affected with a public interest" and ceases to be juris privati 
only.^ "Property does become clothed with a public in- 
terest when used in a manner to make it of pubhc consequence, 
and affect the community at large. When, therefore, one de- 
votes his property to a use in which the public has an interest, 
he, in effect, grants to the pubhc an interest in that use, and 
must submit to be controlled by the pubhc for the common 
good, to the extent of the interest he has thus created. He 

1 Lord Hale, De Portibus Maris, I Harg. Law Tracts, 78. 

[35] 



§ 52.] Innkeepers. [Chap V. 

may withdraw his grant by discontinuing the use; but so long 
as he maiatains the use he must submit to the control. " ^ 

The duty placed upon one exercising a public calling is pri- 
marily a duty to serve every man as a member of the pubUc. 
This primary duty involves for its complete performance that 
the service should be adequate, that only a reasonable price 
should be charged for it, and that all members of the public 
shoiild be served equally and without discrimination. 

§ 52. The innkeeper is in a public employment. 

The innkeeper has from the earliest time been recognized as 
engaged in a public employment, and therefore as subject to 
the duty of one engaged in such an employment. "The person 
who erects the sign, " the Court of King's Bench quaintly said 
in the time of James the First, "charges himself to the common- 
wealth." ^ If the innkeeper violates his public obligation he 
must suffer for it; * " because he has made profession of a trade 
which is for the pubUc good, and has thereby exposed and 
vested an interest of himself in all the king's subjects that will 
employ him in the way of his trade." ^ 

The reason for holding that an innkeeper's calling is a public 
one has already been explained ; " and it has been forcibly ex- 
pressed elsewhere as follows: "When the weary traveller 
reaches the wayside inn in the gathering dusk, if the host turn 
him away what shall he do? Go on to the next inn? It is 
miles away, and the roads are infested with robbers. The 
traveller would be at the mercy of the innkeeper, who might 
practise upon him any extortion, for the guest would submit 
to anything almost, rather than be put out into the night. 

2Waite, C. J., in Munn v. Illinois, 94 U. S. 113 (1876). 

3 Rex V. Collins, Palmer (Eng.), 373 (1623). Other reports of the same 
case, Palmer, 367, 2 Rolle, 345, contain substantially the same language. 

i Year Book,39 Hen. 6, 18, pi. 24 (1460), per Moile, J.; Year Book, 22 Ed. 
4, 49, pi. 15 (1483); Year Book, 14 Hen. 7, 22, pi. 4 (1499); Anonymous, 
Keilway, 50, pi. 4 (1503). 

6 Holt, C. J., in Lane v. Cotton, 12 Mod. 472, 484 (1701). 

«Ante, § 11. 

[36] 



Chap, v.] Persons in Public Employment. [§ 55. 

Truly a special law is required to meet this situation, for the 
traveller is so in the hands of the innkeeper that only an affirm- 
ative law can protect him. " ^ 

§ 53. The duty to receive guests. 

The first public duty of the innkeeper, in which his calling 
differs from the analogous calhngs of boarding and lodging- 
house keepers, and the other callings examined in this volume, 
is his duty to receive travellers as his guests. The duty will be 
examined at length in a later chapter.* 

§ 54. The duty to provide adeijuate facilities, 

Not only must the umkeeper be willing to receive travellers 
as his guests, he must be prepared to shelter and entertain 
them. An innkeeper without a roof to cover the heads of his 
guests or without sufficient food to appease their hxmger would 
be as little regardful of the pubhc obUgation under which he 
acts as the innkeeper who refused admittance to his inn to the 
weary traveller. It is apparent, therefore, that from the duty 
to receive necessarily follows the duty to provide adequate 
faciUties. Such facilities include an inn in proper repair, and 
of sufficient size to supply the demand; sufficient stores of 
wholesome food and comfortable furniture; and a sufficient 
number of servants to perform the requirements of service 
and protection to the guest. The innkeeper's duty in these 
particulars will be considered at greater length in a later 
chapterv?) 

§ 55. The duty to refrain from discrimination. 

It is clear that the innkeeper can perform his duty to the 
pubUc only by refraining from discrimination in his treatment 
of guests. If he gives to one man better service in the line of 
his business than to another, or serves him at a lower price, 
he is to that extent fostering the interest of an individual 

' Professor Bruce Wyman in 17 Harvard Law Rev. 159. 
8 Post, chapter 6. 
" Post, chapter 14. 

[37] 



§ 55.] Innkeepers. [Chap. V. 

against that of the whole pubhc. Each traveller who applies 
for admittance to an inn does so as a representative of the pub- 
lic, into whose service the innkeeper has entered; and each per- 
son equally represents that public, and is equally entitled to all 
the service which the innkeeper owes. It is only when he steps 
outside his pubhc calling and performs services not included in 
the business of innkeeping that he is entitled to act from mo- 
tives of private interest or friendship. "The public right is 
a common right, and a common signifies a reasonably equal 
right. . . . Equality, in the sense of freedom from imrea- 
sonable discrimination, being of the very substance of the com- 
mon right, an individual is deprived of his lawful enjoyment 
of the common right when he is subjected to unreasonable and 
injurious discrimination in respect to terms, faciUties, or ac- 
commodations. . . . Whether unreasonableness of terms, 
faciUties, or accommodations operates as a total or a partial 
denial of the right, and whether the unreasonableness is in the 
intrinsic, individual nature of the terms, facilities or accommo- 
datiops, or in their discriminating, collective and comparative 
character, the right denied is one and the same common right, 
which would not be a right if it could be rightfully denied, and 
would not be common, in the legal sense, if it could be legally 
subjected to unreasonable discrimination, and parcelled out 
among men in unreasonably superior and inferior grades at the 
behest of the servant from whom the service is due. The com- 
monness of the right necessarily imphes an equality of right, 
in the sense of freedom from unreasonable discrimination. . . . 
What kind of a common right of carriage would that be which 
the carrier could so administer as to tmreasonably, capriciously, 
and despotically enrich one man and ruin another?" *" "A 
service for the public necessarily impUes equal treatment in its 
performance, when the right to the service is common. Be- 
cause the institution, so to speak, is public, every member of 
the community stands on an equality as to the right to its ben- 
efit, and therefore the carrier cannot discriminate between 
10 Doe, J., in McDuffee v. Portland & R. R. R., 52 N. H. 430 (1873). 
[38] 



Chap, v.] Persons in Public Employment. [§ 56. 

individuals for whom he will render the service. In the very 
nature, then, of his duty and of the pubUc right his conduct 
should be equal and just to all. " ^^ 

These vigorous opinions were delivered in cases where dis- 
crimination by common carriers was in question; but the 
same public duty which was the foundation of the obUgation 
in these cases binds the innkeeper, and the language used is as 
appUcable to the one employment as to the other. Innkeepers 
too are forbidden to discriminate between guests; "as they 
cannot refuse to receive guests, so neither can they impose un- 
reasonable terms upon them. " ^^ ' 

§ 56. What amounts to unreasonable discrimination. 

EquaUty of service does not mean identity of service; and 
if one guest gets service that is reasonably and substantially 
equivalent to that furnished to another guest, he cannot com- 
plain. Some difference is of course necessary. If all the guest 
chambers in an inn are properly equipped, no one can legally 
complain because the room assigned to another has more taste- 
ful furniture, or a more attractive outlook from the window; nor 
can a guest object because he is not assigned to the same table 
in the dining room as another, or because a particular servant 
is assigned to another guest rather than to himself. (An inn 
might doubtless consist of two separate buildings for guests; 
and if each was properly equipped, no guest could complain 
that he was assigned to one rather than to the other. WhUe, 
therefore, an innkeeper could not legally discriminate between 
guests of different classes or different races he might separate 
them, putting each class or race into a separate but equally 
well-equipped building.^^ 

Even if there is discrimination, it may in some circumstances 
be justified. A guest might for his own fault, in order to secure 

n Bedle, J., in Messenger v. Pennsylvania R. R., 8 Vroom (N. J.), 531 
(1874). 

12 Lord Kenyon, C. J., in Kirkman v. Shawoross, 6 T. R. 14, 17 (1794). 

"See Younger v. Judah, 111 Mo. 303, 19 S. W. 1109, 33 Am. St. Rep. 
527 (1892); West Chester & P. R. R. v. Miles, 55 Pa. 209 (1867). 

[39] 



§ 56.] Innkeepers. [Chap. V. 

the comfort or the safety of other guests, be obliged to be con- 
tent with inferior accommodations. IV This principle is, ex- 
pressed by Judge Doe with his usual clearness and vigor :^-? 

"A certain inequahty of terms, facilities, or accommodations 
may be reasonable, and required by the doctrine of reasonable- 
ness, and therefore not an infringement of the common right. 
It may be the duty of a common carrier of passengers to carry 
under discriminating restrictions, or to refuse to carry those 
who, by reason of their physical or mental condition, would in- 
jure, endanger, disturb, or annoy other passengers; and an 
analogous rule may be apphcable to the common carriage of 
goods. Healthy passengers in a palatial car would not be pro- 
vided with reasonable accommodations if they were there un- 
reasonably and negligently exposed by the carrier to the society 
of smallpox patients. Sober, quiet, moral, and sensitive trav- 
ellers may have cause to complain of their accommodations if 
they are imreasonably exposed to the companionship of imre- 
strained, intoxicated, noisy, profane, and abusive passengers, 
who may enjoy the discomfort they cast upon others. In one 
sense, both classes, carried together, might be provided with 
equal accommodations ; in another sense, they would not. The 
feelings not corporal, and the decencies of progressive civiliza- 
tion, as well as physical hfe, health, and comfort, are entitled 
to reasonable accommodations. Mental and moral sensibUi- 
ties, unreasonably wounded, may be an actual cause of suffer- 
ing, as plain as a broken limb; and if the injury is caused by 
unreasonableness of facilities or accommodations (which is syn- 
onymous with unreasonableness of service), it may be as plain 
a legal cause of action as any bodily hurt, commercial incon- 
venience, or pecuniary loss. To allow one passenger to be 
made uncomfortable by another committing an outrage, with- 
out physical violence, against the ordinary proprieties of life 
and the common sentiments of mankind, may be as clear a vio- 
lation of the common right, and as clear an actionable neglect 

" Pendergast v. Compton, 8 C. & P. (Eng.) 454 (1837). 
16 In McDuffee v. Portland & R. R. R., 52 N. H. 430 (1873). 
[40] 



Chap, v.] Persons in Public Employment. [§ 58. 

of a common carrier's duty, as to permit one to occupy two 
seats while another stands in the aisle. " 

§ 57. The duty to make reasonable charges. 

Another rule clearly following from the general principle that 
the innkeeper must receive all travellers as his guests is that he 
is limited to a reasonable compensation for his services; for if 
he could charge what he pleased, he could make anyone's right 
to be received valueless by requiring the payment by way of 
accommodation of a prohibitive amount. The question what 
compensation the innkeeper is entitled to recover will be dis- 
cussed in a subsequent chapter.^O 

§ 58. The duty to receive strangers. 

Under some circumstances the innkeeper in the course of his 
pubUc service may be obUged to admit to the inn persons who 
are not and do not intend to become guests. The nature and 
extent of this duty will be examined later!"' 

16 Post, chapter 20. 

17 Post, chapter 7. 



[41] 



§ 62.] 



Innkeepers. 



[Chap. VI. 



CHAPTER VI. 



DUTY TO RECEIVE GUESTS. 



61. The innkeeper must receive all 

who apply. 

62. Duty owed to travellers only. 

63. Who is a traveller. 

64. Duty to receive persons inca- 

pable of contracting. 

65. Restriction of accommodation 

to certain classes. 

66. Reception may be demanded 

at night. 



§ 67. Innkeeper must be notified of 
traveller's desire to be re- 
ceived. 

68. Innkeeper's duty to receive 

goods with the guest. 

69. Tender of price of accommoda- 

tion. 

70. Remedy for refusal to receive. 

71. End of obligation to receive. 



§ 61. The innkeeper must receive all who apply. 

The fundamental duty of the innkeeper to the pubUc, as a 
person engaged in a public employment/ is to receive for enter- 
tainment in his inn all travellers who properly apply to be ad- 
mitted as guests.^ This duty is not absolute, as will be seen; * 
but, subject to the excuses later examined, it binds every keeper 
of a common inn from the time he opens his doors to the public. 

§ 62. Duty owed to travellers only- 

The inn is established for travellers, and it is such persons 
only who are the necessary objects of the public sohcitude. 
One who is not a traveller does not need the inn to protect him, 

1 Ante, §§ 11, 51. 

2 "Willis V. MoMahon, 89 Cal. 156, 26 Pac. 649 (1891); Kisten v. Hilde- 
brand, 9 B. Mon. (Ky.) 72, 48 Am. Dec. 416 (1848); Markham v. Brown, 
8 N. H. 523, 31 Am. Dec. 209 (1837); Adams v. Freeman, 12 Johns. (N. Y.) 
408, 7 Am. Dec. 827 (1815); Commonwealth v. Mitchell, 2 Parsons (Pa.), 
431, 1 Phila. 63 (1850); Rex v. Ivens, 7 Car. & P. (Eng.) 213 (1835); Haw- 
thorne V. Hammond, 1 Car. & K. (Eng.) 404 (1844); Rex v. Collins, Palmer, 
363, 373, 2 RoUe, 345 (Eng. 1623); Rex v. Smith, 65 J. P. 521 (Eng. 1901). 

3 Post, chapter 8. 

[42] 



Chap. VI.] Duty to Receive Guests. [§ 63. 

for he can provide a home for that purpose. The pubhc duty 
of the innkeeper is therefore owed to travellers only, and no 
one who is not a traveller can demand to be received at an 
inn.^ 

Thus in the leading case on the law of innkeepers ® the court 
said: "Common inns are instituted for passengers and way- 
faring men; for the Latin word for an inn is diversoriwn, be- 
cause he who lodges there is quasi divertens se a via; and so 
diversoriolum. And therefore if a neighbor, who is no traveller, 
as a friend, at the request of the innholder lodges there, and 
his goods be stolen, etc., he shall not have an action; for the 
writ is ad hospitandos homines, etc., transeuntes in eisdem hospi- 
tantes. " And though the philology of the court may be ques- 
tionable, its law is accurate. 



§63- Who is a traveller. 

A friend of the innkeeper who calls upon him socially is not 
a traveller ; ® and it seems that in general one who hves in the 
same town will not be a traveller. In an old case it was said 
that if an innkeeper invites one to supper, and the night being 
far spent he invites him to stay all night, such a guest is no 
traveller.'' 

But it is entirely possible for an inhabitant of the town to 
be a traveller when he comes to the um; and the tendency of 
the modern cases is to be very liberal in regarding one who de- 
sires the services of the innkeeper as a traveller, in spite of his 
residence in the same town. Certainly a man to be a traveller 
does not need to be at the time engaged in a long or merely 
occasional jom-ney.* Where, for instance, a man on his way 
from his city office to his suburban home, stopped at an inn 

4 Rex V. Luellin, 12 Mod. 445 (1700); Curtis v. Murphy, 63 Wis. 4, 22 
N. W. 825 (1885). 

sCalye's Case, 8 Coke, 63 (1584). 

oSouthcote V. Stanley, 1 H. & N. (Eng.) 247 (1856). 

'Carr's Case, 1 Roll. Abr. 3, pi. 4 (1583). 

8 Atkinson v. Sellers, 5 C. B. N. S. (Eng.) 442 (1858). 

[43] 



§ 64.] Innkeepers. [Chap. VI. 

to get dinner he was held to be a traveller.^ In that case Mr. 
Justice Kennedy said: 

"Any person who was neither an inhabitant of the house nor 
a private guest of the innkeeper or his family, but who came 
into the house as a guest to get such accommodation as is af- 
forded and he was willing to pay for, was a traveller. It does 
not seem to me to make any difference whether his journey be 
a long or a short one. " 

And in a leading case in Connecticut the court said : 

"A townsman or neighbor may be a traveller and therefore 
a guest at an inn as well as he who comes from a distance, or 
from a foreign country. If he resides at the inn, his relation to 
the innkeeper is that of a boarder; but if he resides away from 
it, whether far or near, and comes to it for entertainment as a 
traveller and receives it as such, paying the customary rates, 
we know of no reason why he should not be subjected to aU the 
duties of a guest, and entitled to all the rights and privileges 
of one. In short, anyone away from home, receiving accom- 
modations at an inn as a traveller, is a guest." ^° 

A man who takes a walk and just before reaching home goes 
into an inn to get a drink is not a traveller, and cannot demand 
the accommodation he seeks; " but if in the course of a long 
walk for pleasure he stops on his way for refreshment at an inn, 
he is entitled to be entertained; if he' is bona fide in the course 
of travelling from one place to another he is none the less a 
traveller because the purpose of his journey is merely pleasure.^^ 

§ 64. Duty to receive persons incapable of contracting. 

The innkeeper's obligation to receive is not confined to the 
reception of guests with whom he can make a binding contract. 
A. married woman or] an infant requires the services of an inn- 
keeper during a journey as much as another, and the interest 

» Orchard v. Bush [1898], 2 Q. B. (Eng.) 284, 289. 
loWaUing v. Potter, 35 Conn. 183 (1868). 

11 Murphy v. Innes, 11 So. Australia, 56 (1877). 

12 Taylor v. Humphreys, 30 L. J. M. C. 242 (Eng. 1861). 

[44] 



Chap. VI.] Duty to Receive Guests. [§ 65. 

of the public is just as fully involved in Itheic comfort and pro- 
tection. A married woman oHan infauMiay therefore demand 
admittance to an inn.^^ This has been laid down, to be sure, 
with the proviso that the innkeeper does not know that the in- 
fant's guardian objects to the infant becomiag a guest;® but 
this proviso must be confined to a case where the guardian is 
himself present or at least has made other sufficient provision 
for the infant; for it is clear that the umkeeper must not leave 
the infant to starve id the street, even if the guardian objects 
to his being received. 

A charge of Lord Abinger to a jury in the case of Proctor 
V. Nicholson ^^ looks at first sight as if the innkeeper need not 
receive a person incapable of contracting; he said, "the land- 
lord of an inn may supply whatever things the guest orders, 
and the guest is bound to pay for them, provided that the guest 
be possessed of his reason, and is not an infant. In either of 
these latter cases the landlord must look to himself. " But the 
meaning appears to be that the landlord in such a case must 
take care that the articles supplied are necessaries, as otherwise 
he cannot recover. The passage does not really signify that 
the landlord may refuse to receive an infant as guest. 

§65- Restriction of accommodation to certain classes. 

It is imcertain on the authorities how far an innkeeper may 
consent to receive only a certain class of guests. It is no doubt 
competent for an innkeeper to fix the character of his entertain- 
ment so high that his reasonable charges will shut out all but 
wealthy or well-to-do patrons. "He does not absolutely en- 
gage to receive every person who comes to his house, but only 
such as are capable of pajong a compensation suitable to the 
accommodation provided." ^® 

If, however, a person appUes for such accommodation and is 

13 Watson V. Cross, 2 Duv. (Ky.) 147 (1865). 
" Ibid. 

16 7 Car. & P. (Eng.) 67, 69 (1835). 

10 Abbott, C. J., in Thompson v. Lacy, 3 B. & Aid. 283, 285 (1820). 

[45] 



§ 67.] Innkeepers. [Chap. VI. 

prepared to pay the price demanded, the innkeeper could 
hardly refuse to receive the guest on the ground that he was a 
poor man, and ought not to afford such an entertainment. Nor 
it would seem could he justify a refusal to receive a guest on 
the ground that he belongs to an unpopular race or profession. 
It is said, to be sure, in State v. Steele," that a person who 
would be obnoxious to all the other guests might be excluded, 
and this opinion would justify the exclusion of a person because 
he belonged to an tmpopular race or was of a despised color. 
It is not likely, however, that the law would permit an inn- 
keeper to tender his house for the use only of members of a cer- 
tain race, or to persons of a certain color; yet in Johnson v. 
Midland Railway^* Baron Parke said: "A man may keep 
an inn for those persons only who come in their own car- 
riages. " This doctrine is a very doubtful one; but it is doubt- 
less competent for an innkeeper to entertain guests of different 
classes in different rooms or reqioire them to eat at separate 
tables, provided each gets reasonable accommodations.^* 

§ 66. Eeception may be demanded at night. 

While it is clear that an inn may be closed at reasonable hours 
during the night, ^^ it seems also clear that a traveller actually 
reaching the inn while it is closed may wake the innkeeper and 
demand admittance. This was rightly assumed to be the law 
by Baron Parke in an EngUsh case.^^ 

§ 67. Innkeeper must be notified of traveller's desire to be received. 
The burden appears to be on the applicant to give notice to 
the innkeeper that he desires to be received as a guest. Thus 
where a person was travelling at night, and came to an inn after 
it was shut up for the night, and knocked, it was held that the 

" 106 N. C. 766, 11 S. E. 478, 19 Am. St. Rep. 573, 8 L. R. A. 516 (1890). 
18 4 Exch. (Eng.) 367, 371 (1849). 
w Post, § 167. 

20 Commonwealth v. Wetherbee, 101 Mass. 214 (1869). 

21 Hawthorne v. Hammond, 1 C. & K. (Eng.) 404 (1844); Ace. Rex v. 
Ivens, 7 Car. & P. (Eng.) 213 (1835). 

[46] 



Chap. VI.] Duty to Receive Guests. [§ 68. 

innkeeper must, in order to be liable for not admitting the 
guest, have heard the knocking, and in addition must reason- 
ably have concluded that the person was a bona fide guest. 
Parke, B., said, in charging the jury: 

"There is no doubt that the law is, that a person who keeps 
a public inn is boimd to admit all persons who apply peaceably 
to be admitted as guests. You will therefore have to say 
. whether you are satisfied that the noise made by the plaintiff's 
brother was really heard by the defendant; and if so, whether 
you think that she ought to have concluded from it that the 
persons so knocking at the door were persons requiring to be 
admitted as guests, or whether she might have concluded that 
they were drunken persons, who had come there to make a 
disturbance. You wiU take the case into your consideration, 
and find, by your verdict, whether you think that the noise 
made at the door implied that the persons who made it wanted 
to be admitted as guests or not. " ^^ 

§ 68. Innkeeper's duty to receive goods with the gnest. 

An innkeeper must certainly receive with the guest all goods 
which could. properly be called baggage; but it would seem that 
his obligation goes further, and that he must receive all that 
the guest brings with him to the iim, provided it is not dan- 
gerous or a nuisance. In Br oadwood v. G ranara.^^ Baron Parke 
said: "An innkeeper has a lien on such goods only as he is 
compelled to receive with his guest. Could he be indicted for 
not receiving a pianoforte? It might be a nuisance to persons 
in his house. " This expression is probably too large. An inn- 
keeper could not base his refusal on the fact that the goods 
might become a nuisance, if he had power by regulation to pre- 
vent such use as would be harmful ; and it is submitted that in 
the unusual case whqre a person travels with a piano he should 
ybe permitted to bring it with him to the inn (unless it is so heavy 

22 Hawthorne v. Hammoni 1 C. & K. (Eng.) 404 (1844). 
,23 10 Exclf. <Eng.) 417,(420, 24 L. J. Ex. 1, 1 Jur. N. S. 19, 3 W. R. 25, 
sb. L. R. 177 j[l854)_^ ^ 

[47] 



§ 68.] Innkeepers. [Chap. VI. 

or unwieldy that the innkeeper with his reasonable supply of 
servants cannot handle it) ; while of course the innkeeper may, 
by regulation, provide that it shall not be used at unreasonable 
hours. In the later case of Robins v. Gray,^* a guest was 
thought to be entitled to bring with him a sewing machine ; and 
Lord Esher, M. R., said: "If a traveller comes to an inn with 
goods which are his luggage — I do not say his personal luggage, 
but his luggage — the innkeeper, by the law of the land, is bound 
to take him and his luggage in. The innkeeper cannot dis- 
criminate and say that he will take in the traveller but not his 
luggage. If the traveller brought something exceptional which 
is not luggage — such as a tiger or a package of d3Tiamite — the 
innkeeper might refuse to take it in; but the custom of the 
reahn is that, unless there is some reason to the contrary in the 
exceptional character of the things brought, he must take in 
the traveller and his goods." 

Whether an animal which is not dangerous, Uke a dog, could 
be refused on the ground that there are no faciUties at the inn 
to prevent the dog from becoming a nuisance to the guests is 
more doubtful. It could not be restrained from annoyance by 
a regulation, hke a piano ; and on the whole it would seem that 
unless the inn has, or, considering the nature of its business, 
ought to have, pecuUar facilities for caring for animal pets they 
may be excluded from the inn and placed in the stable.^^ 

In order to demand admittance for the goods he brings the 
guest is not boimd to prove them his own. A guest may come 
to an inn with the goods of another, and the ownership of the 
goods is no business of the innkeeper. "He has not to inquire 
whether the goods are the property of the person who brings 
them or of some other person. If he does so inquire, the trav- 
eller may refuse to tell him, and may say, 'What business is 
that of yours? I bring the goods here as my luggage, and I in- 
sist upon your taking them in ; ' or he may say, ' They are not 
my property, but I bring them here as my luggage, and I insist 

2* [1895] 2Q. B. 501. 
25 See post § 96. 
[48] 



Chap. VI.] Duty to Receive Guests. [§ 71. 

upon your taking them m;' and then the innkeeper is bound 
by law to take them in. " ^* The innkeeper may undoubtedly 
refuse to receive goods known to him to be stolen when they 
are broiight to the inn by the thief; but in the ordinary case 
he need not and cannot investigate the question of title. 

§ 69. Tender of price of accommodation. 

The innkeeper is not bound to receive the guest until the 
price of the accommodation is tendered.^^ But the necessity 
of tender may be, and usually is, waived in practice. Thus, if 
the inn is open and the traveller enters it and makes his desire 
to become a guest known to the innkeeper, the latter must 
request a tender if he means to insist upon it as a condition of 
receiving a guest; while if the inn is closed, or access to it is 
refused to the traveller, he is injured by refusal to receive him 
before the time has come for him to make a tender.^* 

§ 70. Bemedy for refusal to receive. 

An innkeeper is indictable for illegal refusal to receive a 
guest; ^^ or the party wrongly refused accommodation may 
bring an action on the case to recover damages for the refusal.'" 

§ 71. End of obligation to receive. 

The innkeeper may put an end to his duty to receive guests 
by going out of the business of innkeeping.'^ He is not obUged 
to continue in the business merely because he has once under- 
taken it.'^ But his giving up the business must be bona fide; 

28 Lord Esher, M. R., in Robins v. Gray [1895], 2 Q. B. 501. 

27 FeU V. Knight, 8 M. & W. 269, 10 L. J. Ex. 277, 5 Jur. 554 (Eng. 1841); 
Pinohon's Case, 9 Colce, 87 (1611). 

28 Fell V. Knight, supra. 

29Kisten v. Hildebrand, 9 B. Mon. (Ky.) 72, 48 Am. Dec. 416 (1848); 
Commonwealth v. Mitchell, 2 Parsons (Pa.), 431, 1 Phila. 63 (1850); Rex v. 
Ivens, 7 Car. & P. (Eng.) 213 (1835). 

30 Anonymous, Godbolt (Eng.), 345, pi. 440 (1623); Rex v. Collins, Pal- 
mer (Eng.), 373 (1623); CorneU v. Huber, 102 N. Y. App. Div. 293, 92 
N. Y. Supp. 434 (1905); Whiting v. Mills, 7 Up. Can. Q. B. 450 (1849). 

3t Anonymous, Godbolt, 345, pi. 440 (1623); Rex v. Collins, Palmer, 373 
(1623). 

32 Conklin v. Prospect Park Hotel Co., 1 N. Y. Supp. 406 (1888). 
4 * [ 49 ] 



§ 71.] Innkeepers. [Chap. VI. 

if he merely pretends to give up the business, whUe really con- 
tinuing to receive guests, he will remaia hable.^^ "If an inn- 
keeper taketh down his sign, and yet keepeth an hosterie, an 
action upon the case will he against him, if he do deny lodging 
unto a traveller for his money. " ^* 

33 Rex V. CoUins, Palmer, 373 (1623). 

3* Anonymous, Godbolt, 345, pi. 440 (1623). 



[50 



Chap. VII.] Duty to Persons not Guests. 



[§82. 



CHAPTER VII. 

THE DUTY OF AN INNKEEPER TO PERSONS WHO ARE NOT GUESTS. 



i 81. Innkeeper's responsibility to 
third persons for acts of 
guests. 

82. Duty to admit strangers not 

seeking entertainment. 

83. Stranger coming to inn for con- 

venience of guest. 

84. Stranger coifiing for a social 

call on guest. 

85. Stranger coming by appoint- 

ment to do business with 
guest. 



§ 86. Stranger coming to solicit pat- 
ronage. 

87. Discrimination between car- 

riers coming to solicit patron- 
age. 

88. Right of stranger forfeited by 

misconduct. 

89. Stranger entering to make in- 

quiry. 



§ 81. Innkeeper's responsibility to third persons for acts of guests. 
The innkeeper is not a guarantor of his guests' solvency or 
honesty in their dealings with third persons. He cannot be 
held responsible, for instance, for a bill incurred by the guest 
for washing his linen. ' Such responsibiUty may, however, be 
imposed upon the innkeeper by statute. Thus under a statute 
by which the occupier of any house where a dog is permitted 
to live is regarded as the owner, the innkeeper is Uable for in- 
juries caused by a guest's dog which the guest had kept at the 
inn.^ 



§ 82. Duty to admit strangers not seeking entertainment. 

One who is not a guest or intending immediately to become 
a guest, has, generally speaking, no right to enter or remain ia 
the inn against the objection of the innkeeper.^ There are, to 
be sure, in every inn, "public rooms, " so called, and persons not 



1 Callard v. White, 1 Stark. 171 (Eng. 1816). 

2 Gardner v. Hart, 44 W. R. 527 (Eng. 1896). 

3 State V. Whitby, 5 Harr. (Del.) 494 (1854). 



[51] 



§ 83.] Innkeepeks. [Chap. VII. 

guests are often in the habit of resorting to such rooms; but 
they are admitted to them only by the consent of the innkeeper. 
If that consent is withdrawn, one who is not a guest has no 
more right to enter a public room in an inn than he has ,to enter 
the private room of a guest. " Barring the Umitation imposed 
by holding out inducements to the public to seek acconmioda- 
tion at his inn, the proprietor occupies it as his dwelling house, 
from which he may expel all who have not acquired rights, 
growing out of the relation of guest. " ^ 

The same idea was vigorously expressed by Judge Parsons, 
in Commonwealth v. Mitchell: ^ "If it should be held, as was 
contended on the argument, that because a man keeps a public 
house all who choose have a right to enter and occupy the hall 
or bar-room, or even the pubHc parlor in the hotel, and that 
the proprietor has not a right to request them to leave, and if 
they do not, and he gently lays his hands on one to lead him 
out, he is guilty of an assault and battery, but few persons 
would be found as lodgers in pubUc houses. For where is the 
distinction to be drawn? If one may enter the inn and tarry 
there, all may. The pickpocket, the burglar, gambler and 
horse thief, can come and take his seat by the side of the most 
virtuous man in the commimity in the gentleman's common 
parlor at the hotel, and the proprietor cannot eject him (no 
matter how annoying it may be to the guest) without being 
indicted for an assault and battery. Nor would the line of 
distinction be drawn here — the filthy and unclean would claim 
the same right. It is only necessary to state such a proposi- 
tion to show its absurdity. " 

§ 83. Stranger coining to inn for convenience of guest. 

While the general principle just stated is imquestioned, there 
are certain cases in which a stranger may desire to enter the 
inn, not merely for his own pleasure or business, but because 

4 Avery, J., in State v. Steele, 106 N. C. 766, 11 S. E. 478, 19 Am. St. Rep. 
573, 8 L. R. A. 516 (1890). 
s 2 Parsons (Pa.), 431, 1 Phila. 63 (1850). 
[52] 



Chap. VII.] Duty to Persons not Guests. [§ 85. 

the convenience of a guest of the inn calls him there. While 
no right to enter the inn can be based on his own claim, he can 
imder certain circumstances claim to be exercising a right of 
the guest. Where such is the case it would seem that his right 
to admittance is as clear as the right of a guest. It must be 
borne in mind, however, that in order to show a right of ad- 
mittance he must base his claim on a right of the guest whom 
he comes to see. 

Even in such a case there is some authority for saying that 
he cannot legally enter the inn against the objection of the inn- 
keeper. Judge Parsons, in Commonwealth v. Mitchell,^was 
of opinion that a person desiring to call upon a guest, even if 
he had been sent for by the guest, could not legally resist ex- 
clusion by the innkeeper, and that the innkeeper might use 
any force that was necessary to exclude him without being 
Uable to an action for assault and battery, though he might be 
liable to an action on the case for refusal. This opinion, how- 
ever, is probably incorrect. If, either in his own right or the 
right of a guest, the party is permitted by the law to enter the 
inn, the innkeeper can probably not justify the use of force to 
exclude him. 

§ 84. Stranger coming for a social call on guest. 

Though there is no direct authority in favor of such a right, 
it seems that a stranger coming to make a social call upon the 
guest at the guest's request would have a right to be admitted 
for that purpose. Any other rule would deprive the guest of 
one privilege necessary for his comfort while at the inn. If, 
however, the guest has not previously requested the stranger 
to call, it seems clear that the stranger cannot object if he is 
denied admittance to the inn and the guest is not informed of 
his presence.'' 

§ 85. Stranger coming by appointment to do business with guest. 
In the ordinary case it is tolerably clear that a stranger who 

« 2 Parsons (Pa.), 431, 1 Phila. 63 (1850). 

'Commonwealth v. Mitchell, 2 Parsons (Pa.) 43, 10 Phila. 63 (1850). 

[53] 



§ 85.] Innkeepers. [Chap. VII. 

comes by appointment to do business with a guest has a right 
to be admitted. " It is conceded, " said Parker, J., in Markham 
V. Brown,* "that he may be bound to permit the entry of per- 
sons who have been sent for by the guest. " And" even those 
courts which are most reluctant to permit the entrance of a 
stranger, do in fact, concede the right to such persons. To be 
sure, if the visitor after his entrance misconducts himself he 
may be excluded. As Judge Avery said in State v. Steele: ^ 

"If it be conceded that the prosecutor went into the hotel at 
the request of a guest, and for the purpose of conferring with 
the latter on business, still, in any view of the case, if, after 
entering, he engaged in ' drumming ' for his employer when he 
had been previously notified to desist in obedience to a regula- 
tion of the house, the defendant had a right to expel him if he 
did not use more force than was necessary. . . . The guest, 
by sending for a hackman, could not delegate to him the right 
to do an act for which even the guest himself might lawfully 
be put out of the hotel." 

And Judge Parsons said forcibly in Commonwealth v. Mitch- 
ell : ^^ " Can it be said that . . . the proprietor is bound to 
let every felon in the city enter his house, find access to his 
chambers, to visit a guest who happens to lodge there, and who 
has thus sought the lodging to enable his associates in crime to 
enter the house for the purpose of robbing the other guests, or 
stealing the valuables from the hotel ? Such a thing could not 
be tolerated." 

As to the general right of the guest to have a proper person 
visit him at the inn on business, the same learned justice in the 
same case appears to recognize it, while qualifying it by his 
doctrine, already stated, that the innkeeper might lawfully use 
force to keep the visitor from making use of this right. ' ' When 
a guest has been admitted to a hotel and has taken a room, if 
any one calls to see him upon business, fair dealing would seem 

8 8 N. H. 623, 31 Am. Dec. 209 (1837). 

9 106 N. C. 766, 11 S. E. 478, 19 Am. St. Rep. 573, 8 L. R. A. 516 (1890). 
10 2 Parsons (Pa.), 431, 1 Phila. 63 (1850). 

[54] 



Chap. VII.] Duty to Persons not Guests. [§ 86. 

to require that the proprietor should communicate the intelli- 
gence to the guest, and if he consented to see the visitor, let 
him enter. But this, I apprehend, would be more by courtesy 
than a sheer claim of right. And if the proprietor of the house 
should refuse to suffer the visitor to come in, or if he had en- 
tered should request him to depart, and on his refusal, gently 
lead him out, I am not prepared to say he would be guilty of 
an assault and battery for so doing. That the proprietor would 
be liable to an action, both to the guest and the visitor for any 
injury either might sustain in consequence thereof, I have no 
doubt. And probably might be Uable to an indictment upon 
the same principle he would be for refusing to entertain a trav- 
eller when he had room. But because one should allege he had 
business with a guest, and the guest desire to see a visitor that 
was obnoxious to the keeper of the house, and therefore any 
one can enter the hotel on such a pretext and stay as long as he 
pleases without the proprietor possessing the power to remove 
him, is a principle which cannot be sanctioned on any clear 
legal ground. The guest is but an occupier of his lodgings at 
the will or sufferance of the proprietor, and necessity requires 
that he who has charge of that house should determine whether 
visitors who may desire to call upon a lodger are proper persons 
to be admitted within his chambers; otherwise, under such a 
pretext, thieves and robbers might gain admittance and rob 
his other guests of much that is valuable. Any different rule 
would expose every hotel keeper to an imminent risk. " 

§ 86- Stranger coming to solicit patronage. 

~7^ Where a stranger seeks admittance to an inn for the purpose 
of soliciting the patronage of guests, he may clearly be excluded 
from the inn. Indeed, as is pointed out in the case of State v. 
Steele,** it may under some circumstances be the innkeeper's 
duty to exclude such persons, for he is bound to protect the 
guest against troublesome tradesmen. The innkeeper is cer- 
tainly under no obhgation to furnish his inn as a free place of 

" 106 N. C. 766, 11 S. E. 478, 19 Am. St. Rep. 573, 8 L. R. A. 516 (1890). 

[55] 



§ 86.] Innkeepers. [Chap. VII. 

business for all tradesmen who wish to use it for that purpose. 
If the privilege of carrying on business in the inn is a valuable 
one, there is no reason why the innkeeper should not secure for 
himself that benefit. Accordingly the innkeeper may either 
conduct himself, or make an exclusive contract with another to 
conduct a barber shop, news stand, or other business in the inn. 
V"An innkeeper has unquestionably the right to establish a 
news stand or a barber shop in his hotel, and to exclude persons 
who come for the purpose of vending newspapers or books, or 
of sohciting employment as barbers; and, in order to render 
his business more lucrative, he may establish a laundry or a 
Hvery stable in connection with his hotel, or contract with the 
proprietor of a livery stable in the vicinity to secure for the 
latter, as far as he legitimately can, the patronage of his guests 
in that line for a per centum of the proceeds or profits derived 
by such owner of vehicles and horses from dealing with the pa- 
trons of the public house. After concluding such a contract, 
the innkeeper may make, and after personal notice to violators, 
enforce, a rule excluding from his hotel the agents and repre- 
sentatives of other livery stables who enter to soHcit the pat- 
ronage of his guests; and where one has persisted in visiting 
the hotel for that purpose, after notice to desist, the proprietor 
may use sufficient force to expel him if he refuse to leave when 
requested, and may eject him, even though on a particular oc- 
casion he may have entered for a lawful purpose, if he does not 
disclose his true intent when requested to leave, or whatever 
may have been his purpose in entering, if he in fact has engaged 
in sohciting the patronage of the guests. . . . The propri- 
etors of the pubhc house might legitimately share in the profits 
of any such incidental business, as furnishing carriages, buggies, 
or horses to the patrons, and for that purpose had as full right 
to close their house against one who attempted to injure the 
business in which they had such interest as the owner of a pri- 
vate house would have had, and this view of the case is consis- 
tent with the doctrine enunciated in Markham v. Brown. " ^^j 
12 Avery, J., in State v. Steele, supra. 

[56] 



Chap. Vn.] Duty to Pebsons not Guests. [§ 87. 

§ 87. Discrimination between carriers coming to solicit patronage. 

There is, however, one case in which the right of the innkeeper 
to exploit the privilege of using the inn for his own benefit may, 
it seems, be limited. In any business not connected with travel 
he may do as he pleases and the guest has no right to complain; 
but as the inn is estabHshed for the comfort and safety of trav- 
ellers, and the innkeeper is under a public duty to secure that 
comfort and safety, he owes a fiduciary protection towards his 
guest in all that concerns travelling, and he is, therefore, not 
permitted to do anything which might bring his own private 
interests into competition with the interest of his guest in any 
matter that is connected with the guest's journey. The de- 
parture from the inn, in continuation of the guest's journey, is, 
therefore, a matter in which the innkeeper must act solely for 
the benefit of the guest, and cannot permit his own Interest in 
any way to come into competition with the guest's interest. 
Any arrangement, therefore, by which he permits one carrier 
to enter the inn and soUcit the patronage of the guest, in con- 
nection with his departure, and refuses to permit other com- 
peting carriers to do the same, is not permitted to him; for 
the guest, finding his patronage solicited by a carrier, will nat- 
urally conclude that he must deal with that carrier if he is to 
get away from the inn, and even if he knows that there is an- 
other competing carrier he will be xmder an inducement to deal 
with the first carrier owing to the greater convenience of so 
doing. This advantage extended by the innkeeper to one car- 
rier over another will enable the favored carrier to obtain a 
larger compensation for his services from the guest than he 
could get if the competition were equal, and this is detrimental 
to the interest of the guest. It is true that the favored carrier 
is obliged to carry the guest at a reasonable rate, but that rea- 
sonable rate is not a rate that is rigidly fixed ; and a rate con- 
siderably higher than a competitive rate may nevertheless be 
reasonable. If, as may usually be the case, the carrier is obUged 
to pay the innkeeper a certain sum for his privilege, he will be 
entitled to have the amount so paid included in the rate he 

[57] 



§ 87.] Innkeepers. [Chap. VII. 

may charge, since it seems a part of his legitimate expenses. 
Since, therefore, the innkeeper in giving the exclusive privilege 
of soliciting patronage to one carrier is acting to the detriment 
of his guest in a matter which concerns the continuation of his 
journey, the innkeeper's action is illegal, and the competing 
carrier has a right to demand admittance for the purpose of 
soliciting the patronage of the guests. This right it will be 
noticed is based upon the right of the guest not to be subjected 
to a monopoly, and the carrier, therefore, will have no right to 
demand admittance if aU carriers are equally excluded from 
the inn. 

The leading case on this point is Markham v. Brown," in 
which it was held that an innkeeper who admitted to his inn 
the representative of one line of stage coaches which passed 
through the town could not lawfully exclude the representa- 
tive of another competing Hne. \ In his opinion Parker, J., 
said : i'^ 

"As he is bound to admit travellers, under certain limitations, 
he may Ukewise be held, under proper limitations, to admit 
those who have business with them as such. This may be con- 
sidered as derived from the right of the traveller. It is con- 
ceded that he may be bound to permit the entry of persons who 
have been sent for by the guest. But we think the rule is not 
to be limited, in all cases, to this. There may be such connec- 
tion between travellers and those engaged in their conveyance^ 
that the latter, although not specially sent for, may have a 
right to enter a common inn; or such that the landlord, if he 
give a general hcense to some of those whose business is con- 
nected with his guests, in their characters as travellers, cannot 
lawfully exclude others, pursuing the same business, and who 
enter for a similar object. 

"There seems to be no good reason why the landlord should 

have the power to discriminate in such cases, and to say that 

one shall be admitted and another excluded, so long as each has 

the same connection with his guests — the same lawful purpose 

13 8 N. H. 523, 31 Am. Dec. 209 (1837). 

[58] 



Chap. VII.] Duty to Persons not Guests. [§ 87. 

— comes in a like suitable condition, and with as proper a de- 
meanor; any more than he has the right to admit one traveller 
and exclude another, merely because it is his pleasure. 

"If one comes to injure his house, or if his business operates 
directly as an injury, that may alter the case — but that has not 
been alleged here. And perhaps' there may be cases in which 
he may have a right to exclude all but travellers and those who 
have been sent for by them. It is not necessary to settle that 
at this time. 

"In the present case it appeared that stage coaches brought 
their passengers to the plaintiff's inn from various quarters, and 
carried them away in different directions. It is understood 
that Hanover was not a place where the lines of stages or con- 
veyances terminated, and where passengers were left to seek 
their own conveyance onward, as is often the case in the larger 
cities; but that the line of stages extended through the place 
in such manner that travellers might reasonably expect con- 
veyances onward would be tendered for their use. 

"The drivers of some of the coaches were accustomed to re- 
sort to the plaintiff's inn, and boarded there. 

"Under these circimistances, we see no objection to the first 
part of the charge to the jury. The defendant had clearly a 
right to estabhsh a line of stage coaches, and to go to the plain- 
tiff's inn with travellers, and he might of course lawfully enter 
it for the purpose of leaving their baggage and receiving his 
fare. 

"And we are of opinion that, so long as others were permitted 
to do the same, the defendant had an equal and lawful right, 
notwithstanding any prohibition by the plaintiff, to enter the 
plaintiff's inn for the piu-pose of tendering his coach for the use 
of travellers, and soliciting them to take passage with him; and 
for that purpose to go into the common pubHc rooms of the 
inn, where guests were usually placed to await the departure 
of the stages, although he was not requested by such guests; 
provided there was a reasonable expectation that passengers 
might be there, and he came at a suitable time, in a proper 

[59] 



§ 88.] Innkeepers. [Chap. VII. 

maimer, demeaned himself peaceably, and remained no longer 
than was necessary, and was doing no injury to the plaintiff. " 

§ 88. Bight of stranger forfeited by misconduct. 

It is clear that this right, Uke the right of the guest himself,^* 
may be forfeited by the misconduct of the visitor, and may even 
be denied because of the bad character or bad intentions of the 
visitor. The language of Judge Parsons to this effect has al- 
ready been quoted ; " and to the same effect is the opinion of 
the New Hampshire Supreme Court in the case of Markham v. 
Brown : ^* 

"The defendant might forfeit his right by his misconduct, 
so that the plaintiff might reqiiire him to depart, and expel him ; 
and if, by reason of several instances of misconduct, it appeared 
to be necessary for the protection of his guests or of himseK, 
the plaintiff might prohibit the defendant from entering again, 
imtil the ground of apprehension was removed. Thus if af- 
frays or quarrels were caused through his fault, or he was noisy, 
disturbing the guests in the house, interfered with its due reg- 
ulation, intruded into the private rooms, remained longer 
than was necessary after being requested to depart, or other- 
wise abused his right, as by improper importunity to guests to 
induce them to take passage with him ; the plaintiff would have 
a right to reform that, and, if necessary, to forbid the defendant 
to enter, and treat him as a trespasser if he disregarded the 
prohibition. 

"So, if, after a lawful entry of the defendant, he committed 
an assault upon the plaintiff, or any trespass upon his property, 
the plaintiff might treat him as having entered for the unlawful 
purpose, and as a trespasser ab initio." 

When a person otherwise having a right to enter is refused 
admittance because it is suspected that he intends to do wrong 
after he enters, or because he is a person of bad character or 

1* Post, chapters 8, 9. 

15 Supra, § 85. 

w 8 N. H. 523, 31 Am. Dec. 209 (1837). 

[60] 



Chap. VII.] Duty to Persons not Guests. [§ 89. 

reputation, the responsibiUty of the innkeeper is . evidently 
large. So far as the authorities go, the innkeeper may un- 
doubtedly justify exclusion on such a ground. Yet it is a 
difficult matter to establish a mere evil intention; and in the 
ordinary case it is the wiser course to admit the applicant, 
subject to the rules of the inn, and eject him when he violates 
a rule or does any act justifying exclusion. ' 

§ 89. Stranger entering to make inquiry. 

In one class of cases, however, one who is neither a guest 
nor a person having business with a guest may enter an inn. 
One may have occasion to make inquiry at the office of an 
inn either into some matter connected with the business of 
the inn or even for a letter or message addressed to himself. 
If aU inns had the same accommodations and charged the same 
prices, persons who desired accommodation would not need 
to make inquiry before deciding which inn to patronize; or 
if in each place there was but a single inn there would be no 
object in such an investigation. But wherever more than one 
inn is found in a town, the traveller needs information before 
he can choose which inn to patronize. It must be his right, 
therefore, before deciding to become a guest, to enter and in- 
quire what room he can get and what price will be charged, 
and to make such other investigation as is possible. While 
no decided case has been found in which this subject is dis- 
cussed, the right is believed to be beyond question; and in 
the analogous case of a common carrier it has been so held. 
A person going to a railroad station in order to get a time- 
table, but not at that time to take a train, has been held to 
have a right on the premises. ^^ 

It is the custom of inns to receive letters and telegrams 
addressed to strangers and to keep them a reasonable time 
to be called for. While of course an innkeeper cannot be 
compelled to accept such commimications, still if he makes 

" Bradford v. Boston & M. R. R., 160 Mass. 392, 35 N. E. Rep. 1131 
(1894). 

[61] 



§ 89.] Innkeepers. [Chap. VII. 

a practice of doing so (as in fact is true of most innkeepers) 
it seems to be clear that he must admit to the office persons 
coming bona fide to make inquiries for such communications. 
This is of course not a duty placed upon the innkeeper by 
reason of any provision of the law of innkeepers; but it re- 
sults necessarily from the practice of innkeepers, as it has 
just been described. An illustration of the importance of 
this right may be found in the EngUsh case of Strauss v. 
County Hotel and Wine Company.^* In that case a person 
came to an inn intending to stay overnight, and found wait- 
ing for him a telegram summoning him to another city. If 
the innkeeper as a matter of good business pohcy consents 
to receive such messages, he leads travellers to depend upon 
being admitted to inquire for them; and he cannot therefore 
refuse to admit them. 

18 la^Q. B. D. 27,f53 L. J. Q. B. 25, 49 L. T. 6011 32 W. Rep. 170, 48 
J. P. 69\(Eng. 1883).'^" - - 

-A 



[62] 



Chap. VIII.] Refusal to Receive a Guest. 



[§91. 



CHAPTER VIII. 



EXCUSES FOR REFUSAL TO RECEIVE A GUEST. 



§ 95 



Refusal to receive one who 
comes at improper time. 

Refusal to receive one who 
brings an animal. 

Refusal to receive a rival. 
98. Refusal to receive because the 
inn is unlicensed. 



96 



97. 



§ 91. Refusal to receive guest be- 
cause of lack of accommoda- 
tion. 

92. Refusal to receive objection- 

able person. 

93. Refusal to receive one suffering 

from contagious disease. 

94. Refusal to receive one whose 

companions have acted im- 
properly. 

§ 91. Refusal to receive guest because of lack of accommodation. 

When the innkeeper's accommodation is exhausted, he may 
refuse to receive an applicant as a guest. If all his sleeping 
rooms are occupied, he need not admit a guest to sleep in a 
sitting room, or (in modern times) to share the bedroom of 
ariother guest. In an EngUsh case an applicant who had been 
refused admission to an inn because the inn was full sued the 
innkeeper and proved that the coffee room was unoccupied, 
and that there was room without overcrowding for the appli- 
cant to sleep in a room with another guest. The court held, 
nevertheless, that he had been rightly refused admission.^ 
Lord Alverston, C. J., was of opinion that even if the applicant 
had asked to occupy the coffee room, he might legally have 
been refused. Darling, J., said: 

"No doubt an innkeeper is bound to provide accommodation 
for travellers, but he is not to do so at all risks and all costs. 
He is only bound to provide accommodation so long as his 

1 Browne v. Brandt [1902], 1 K. B. 696, 71 L. J. K. B. 367, 86 L. T. 625, 
50 W. R. 654. 

[63] 



§ 92.] Innkeepers. [Chap. VIII. 

house is not full ; when it is full he has no duty in that respect. 
The question then arises, when an innkeeper's house may prop- 
erly be said to be full. I do not think that the old cases can 
help one very much, because in olden times people were in the 
habit of sleeping many in one room, and several in one bed. 
People who were absolutely xmknown to each other would sleep 
in the same room, as is done in common lodging houses at the 
present time. Therefore, if we got a definition of ' full ' in one 
of the old cases, I should not be surprised to find that what was 
called 'full' then, we should now call 'indecent overcrowding.' 
It is the habit now of people to occupy separate bedrooms, and, 
having regard to the ordinary way of hving at the present time, 
I think an inn may be said to be full for the purpose of affording 
accommodation for the night if all the bedrooms are occupied. 
There might have been a difhcxilty here if the plaintiff had said, 
'I wiU take your sitting room. I do not want to go to bed. I 
will sit up aU night. ' But that difficulty does not arise on the 
facts of this case. The coimty court judge has found that the 
house was full, having regard to modern ways of hving. He 
referred to Chaucer and the Canterbury pilgrims. One need 
only look at the 'Sentimental Journey' to see how people's 
habits have altered since the time of Laurence Sterne. I 
am of opinion that the coimty court judge's decision was 
right." 

§92. Befusal to receive objectionable person. 

It has sometimes been laid down broadly that persons who 
would be so objectionable to the patrons of the house that it 
would injure the business of the innkeeper to admit them may 
be excluded ; though the reason for exclusion is simply the race 
of the apphcant.^ While this is doubtless too broadly stated 
as a common-law proposition, a person who is in himself rea- 
sonably objectionable may be excluded. Thus an innkeeper 
may excuse the refusal to accept a person as his guest because 

2 State V. Steele, 106 N. C. 766, 11 S. E. 478, 19 Am. St. Rep. 573, 8 
L. R. A. 516 (1890). 
[64] 



Chap. VIII.] Refusal to Receive a Guest. [§ 94. 

he is drunk,* filthy,^ profane,^ indecently or improperly be- 
haved,® a common brawler or thief,'' or a person of bad reputa- 
tion ; * or if he desires to enter for an unlawful purpose, as to 
assault an inmate;* or if he attempts to enter by violence." 
But mere unconventionahty of costume is no ground for re- 
fusal to receive a guest, so long as the costume is decent. Thus 
a woman who wore a "rational dress," so called, was held en- 
titled to service from an innkeeper." 

§ 93. Refusal to receive one suffering from contagious disease. 

It seems obvious that, for the protection of his other guests, 
an innkeeper may refuse to receive a traveller suffering from 
a contagious disease. This seems sufficiently clear, even with- 
out the support of decided cases; so clear, indeed, that one 
would not expect to find the proposition disputed in litigation. 
Yet in an early English case, where one was indicted for refus- 
ing to receive at his inn one suffering from smallpox, the 
only objection apparently taken, at any rate the objection on 
account of which the indictment was quashed, was that the 
appUcant was not alleged to have been a traveller. ^^ 

§94. Refusal to receive one whose companions have acted im- 
properly. 

The innkeeper cannot refuse to receive a guest or other per- 

sMarkham v. Brown, 8 N. H. 523, 31 Am. Dec. 209 (1837); State v. 
Steele, 106 N. C. 766, 11 S. E. 478, 19 Am. St. Rep. 573, 8 L. R. A. 516 
(1890); Rex v. Ivens, 7 Car. & P. 213 (Eng. 1835). 

■iMarkham v. Brown, 8 N. H. 523, 31 Am. Dec. 209 (1837); State v. 
Steele, 106 N. C. 766, 11 S. E. 478, 19 Am. St. Rep. 573, 8 L. R. A. 516 
(1890). 

6 State V. Steele, 106 N. C. 766, 11 S. E. 478, 19 Am. St. Rep. 573, 8 
L. R. A. 516 (1890). 

oRex V. Ivens, 7 Car. & P. 2l3 (Eng. 1835). 

' Markham v. Brown, 8 N. H. 523, 31 Am. Deo. 209 (1837). 

8 Goodenow v. Travis, 3 Johns. 427 (N. Y. 1808). 

» Markham v. Brown, 8 N. H. 523, 31 Am. Dec. 209 (1837). 

i» As by breaking the door. Goodenow v. Travis, 3 Johns. (N. Y.) 427 
(1808). 

11 Regina v. Sprague, 63 J. P. 233 (Eng. 1899). 

12 Rex v. Luellin, 12 Mod. 445 (1700). 

5 [65] 



§ 94.] Innkeepers. [Chap. VIII. 

son otherwise admissible because companions of the apphcant 
have previously misconducted themselves." 

Thus in a leadkig case the innkeeper refused to serve an ap- 
phcant because he belonged to the mihtia and wore the uniform, 
and other members of the mihtia wearing the same uniform 
had previously misconducted themselves. The iankeeper al- 
leged that he was unable to discriminate between them, and 
took them all as parties who came there to create a disturbance 
in the house. This excuse was held insufficient." Emery, J., 
said: 

"The offered testimony would not be admissible unless it 
logically tended to prove a reasonable cause for such behef. 
The bill of exceptions states, that some eighty or a hundred 
men, members of two militia companies, and clad ia the uni- 
form of the Maine mihtia arrived in town on the day named; 
that ' more or less ' of them (how many is not stated) went to 
the defendant's inn, and there behaved in a disorderly and in- 
sulting manner. These plaintiffs, though members of the mi- 
htia companies, were not of this disorderly party, nor with 
them. It is not claimed that the plaintiffs were otherwise than 
sober, orderly and respectable. The only coimection shown 
between them and the disorderly ones was their membership 
of the same mihtia companies. It is not even shown they were 
of the same company. The only similarity in appearance was 
in the uniform. Such membership was honorable, and there 
was not in that any reasonable cause to beheve the plaintiffs 
intended insult. The uniform was honorable and the rightful 
wearing it by the plaintiffs was no reasonable cause for appre- 
hension of insult. We do not know how many of the organi- 
zation had misbehaved. We have no right to assume the num- 
ber was large. We ought rather to assume the number was 
small. It would be illogical and unjust to say, there was reason- 
able cause to beheve that every member of those companies 

13 Atwater v. Sawyer, 76 Me. 539, 49 Am. Rep. 634 (1884); Markham v. 
Brown, 8 N. H. 523, 31 Am. Dec. 209 (1837). 

" Atwater v. Sawyer, 76 Me. 539, 49 Am. Rep. 634 (1884). 
[66] 



Chap. VIII.] Refusal to Receive a Guest. [§ 96. 

meditated misconduct because a small number of them had 
already misconducted. Yet if there was reasonable cause to 
fear insult from the plaintiffs, there was equal cause to fear 
it from every member. 

"The defendant's claim that he could not distinguish be- 
tween the plaintiffs and the others, cannot be admitted against 
the plaintiffs' right to entertaiament. The plaintiffs were not 
with the others. Their rights cannot be abridged by the simi- 
larity in appearance to other persons not present. It was the 
defendant's duty to discriminate." 

§ 95. Refusal to receive one who comes at improper time. 

The innkeeper cannot refuse to receive a traveller because 
he comes late at night. Indeed, the traveller who cannot reach 
an inn until late is all the more in need of the protection and 
entertainment it affords. In a case where an innkeeper set up 
the late arrival of the plaintiff as an excuse for refusal to re- 
ceive him, Mr. Justice Coleridge said to the jury, "it is next 
said that he came to the inn at a late hour of the night, when 
probably the .family were gone to bed. Have we not all 
knocked at inn doors at late hours of the night, and after the 
family have retired to rest, not for the pm-pose of annoyance, 
but to get the people up?" ^^ -This is not a very conclusive 
answer to the defendant's contention, but it seems to need no 
greater consideration. 

In the same case the defendant set up, as another excuse, 
that the plaintiff had been travelling on Sunday ; but this was 
dismissed with the curt answer that travelling on Sunday was 
not illegal.^* But even if it had been illegal, the case would 
have been the same; the fact that a person has been illegally 
travelling on Simday does not affect his rights as guest." 

§ 96. Refusal to receive one who brings an animal. 

An irmkeeper is of course prepared to receive guests who 

IB Rex V. Ivens, 7 Car. & P. (Eng.) 213, 219 (1835). 

I' Rex V. Ivens, supra. 

" Cox V. Cook, 14 AUen (Mass.), 165 (1867). 

[67] 



§ 97.] Innkeepees. [Chap. VIII. 

drive to an inn, and to entertain his horses as well as himself; 
but if he insists upon bringing with him other animals as pets 
it is doubtful how far the innkeeper may be compelled to re- 
ceive him. Certaialy he cannot be obliged to take in an animal 
which will annoy other guests. 

^ In an Enghsh case it appeared that a person who had been 
in the habit of bringing one or more large dogs with him to an 
inn, to the annoyance of guests, had been forbidden by the inn- 
keeper to come to the inn with a dog. Notwithstanding this, 
he demanded admittance, having with him a large dog in leash. 
The innkeeper refused to admit him, and was indicted for the 
refusal. The court held that the refusal was justifiable." In 
the course of his opinion Chief Baron Kelly said : " I do not lay 
down positively that imder no circumstances could a guest have 
a right to bring a dog into an inn. There may possibly be cir- 
cumstances in which, if a person came to an inn with a dog 
and the innkeeper refused to put up the dog in any stable or 
outhouse, and there were nothing that could make the dog a 
cause of alarm or annoyance to others, the guest might be jus- 
tified in bringing the dog into the inn. But it is not necessary 
to decide any such question. In this case, looking at the pre- 
vious facts, the number of dogs previously brought, and their 
kind and behavior, the nature of the right claimed by the 
prosecutor in his letter,*^ and the size and class of the dog, I 
think the defendant would have had ample ground for his re- 
fusal. " Mr. Justice Manisty added that, in his opinion, "a 
guest cannot under any circumstances, insist on bringing a dog 
into any room or place in an inn where other guests are. ", 

§ 97. Refusal to receive a rival. 

It is sometimes said that an innkeeper is not obliged to en- 
tertain a rival who is acting in the interest of his rival inn. 

18 Regina v. Rymer, 2 Q. B. D. 136, 46 L. J. M. C. 108, 35 L. T. 774, 25 
W. R. 415, 13 Cox C. C. 378 (1877). 

19 To "follow his inclinations" in bringing dogs, when they were not wet 
and dirty. 

[68] 



Chap. VIII.] Refusal to Receive a Guest. [§ 98. 

Thus in Jencks v. Coleman/" Story, J., said: "Suppose pas- 
sengers are accustomed to breakfast, or dine, or sup at his 
house, and an agent is employed by a rival house, at the dis- 
tance of a few miles, to decoy the passengers away the moment 
they arrive at the inn ; is the innkeeper bound to entertain and 
lodge such agent, and thereby enable him to accompUsh the 
very objects of his mission, to the iajury or ruin of his own 
interests? I think not." 

It may, however, be doubtful whether an innkeeper can jus- 
tify the refusal to receive a bona fide traveller merely because 
he intends to act in, the interest of a rival inn. If that is his 
sole purpose in coming to the inn he is not a bona fide traveller^ 
and may be refused admittance on that ground ; if he is a gen- 
uine guest, the innkeeper must receive him, but may prevent 
him from soliciting custom while a guest. The innkeeper un- 
questionably has such power,^^ and by the exercise of it he 
may sufficiently protect himself. 

§ 98. Befusal to receive because the inn is unlicensed- 

Though' keeping an inn without a hcense may be illegal, the 
innkeeper cannot take advantage of this illegaUty to excuse 
himself for refusing to receive a guest. The obligation to serve 
the public attaches to one who is actually keeping a common 
inn, even if he is in default for not obtaining a hcense ; and the 
lack of a license is no excuse to an innkeeper for refusal to re- 
ceive a guest. ^^ And therefore in an action against one who 
has acted as an innkeeper it is not necessary to show that he 
had a license to keep an inn.^^ 

20 2 Sumner, 221, Fed. Cas. No. 7,258 (1835). 

21 Post. § 212. 

22 Atwater v. Sawyer, 76 Me. 539, 49 Am. Rep. 634 (1884); State v. Wynn, 
1 Hawks (N. C), 451 (1821); Anonymous, Godbolt (Eng.), 345, pi. 440 
(1623). 

23 Anonymous, Godbolt (Eng.) 345, pi. 440 (1823). 



[69] 



102.] Innkeepers. [Chap. IX. 



CHAPTER IX. 

THE innkeeper's RIGHT TO EJECT ONE WHO HAS BEEN 
ADMITTED TO THE INN. 



101. Right to eject in general. 

102. Ejection for misconduct. 

103. Ejection for illness. 



§ 104. Ejection for refusal to pay. 
105. Ejection of one who h 
ceased to be a traveller. 



§ 101. Right to eject in general. 

Even after one has been admitted to an km as a guest he 
may be ejected for proper cause. By his admission as a guest 
he is perhaps in a better position to demand the services of the 
innkeeper than when he first appUed for admission ; but prob- 
ably this advantage is merely tactical. While the burden is 
on one who apphes for admission to prove himself entitled to 
demand it, as soon as he has been received as a guest the burden 
is placed on the innkeeper to justify the act of ejecting him. 
But so far as substantive right goes, it is doubtful if the 
guest gains any by securing admission to the inn. If after his 
admission circumstances occur which would have justified the 
innkeeper in refusing to admit him if they had existed when 
he apphed for admission, they will equally justify the innkeeper 
in ejecting him. 

§ 102. Ejection for misconduct. 

If the guest after being received misconducts himself so as 
to annoy the other guests, he may for that cause be ejected 
from the inn. Thus a guest may be ejected who persists in 
annoying other guests by soliciting their custom in his busi- 
ness.^ So one may be ejected who becomes obnoxious to other 

1 State V. Steele, 106 N. C. 766, 11 S. E. 478, 19 Am. St. Rep. 573, 8 
L. R. A. 516 (1890). 

[70] 



Chap. IX.] Right to Eject One Admitted. [§ 103. 

guests by reason of intoxication.^ So a guest may be ejected 
who makes a disturbance in the um. "If a man comes into a 
pubhc house and conducts himself in a disorderly manner, and 
the landlord requests him to go out, and he will not, the land- 
lord may turn him out. There is no doubt that a landlord may 
turn out a person who is making a disturbance in a pubUc 
house, though such disturbance does not amount to a breach 
of the peace. " ^ Indeed, such disturbance would make the 
guest guilty of trespass ab initio* 

§ 103. Ejection for illness. 

If the guest while in the inn contracts a contagious disease, 
so as to endanger the other guests, the innkeeper might send 
him away from the inn if it could be properly and safely done. 
If this can be done at all, it must be done reasonably, so as to 
avoid any injury to the guest. If the innkeeper cannot re- 
move the guest safely, he must refrain from doing so.* 

In Levy v. Corey * the plaintiff alleged that while his wife 
was confined to her room in the defendant's hotel, dangerously 
ill with typhoid fever, the defendant at three o'clock in the morn- 
ing made noisy preparations, declaring it his intention to re- 
move her from the hotel to an outhouse where the servants 
slept, unless the plaintiff paid two thousand five hundred dol- 
lars. The plaintiff, having paid thie money, was suing to re- 
cover it on the ground that it was paid under duress. Chief 
Judge McAdam thus charged the jury: 

"Where a guest is taken ill at a hotel, with a contagious dis- 
ease, hkely to be communicated to others, the proprietor, after 
notifsong the sick guest to leave, has the right to remove such 
guest in a careful and becoming maimer, and at an appropriate 

2 McHugh V. Schlosser, 159 Pa. 480, 28 Atl. 291, 39 Am. St. Rep. 699, 34 
Wkly. Notes Cas. 33 (1894). 

3 Parke, B., in HoweU v. Jackson, 6 Car. & P. (Eng.) 723, 725 (1834). 
* The Six Carpenters' Case, 8 Coke (Eng.), 290 (1610). 

5 McHugh V. Schlosser, 159 Pa. 480, 28 Atl. 291, 39 Am. St. Rep. 699, 
34 Wkly. Notes Cas. 33 (1894). 

6 1 City Ct. Rep. Supp. 57 (1884). 

[71] 



§ 104.] Innkeepers. [Chap. IX. 

hour, to some hospital or other place of safety provided the 
life of the guest be not imperilled thereby. This is not only a 
right inherent in the hotel keeper, but a duty owing to the 
other guests, and to the preservation of pubhc health. If the 
hotel keeper exercises these rights at an improper time, or in 
an illegal and unbecoming manner, he is Uable therefor on the 
ground of negligence, or for the abuse of authority. 

"The hotel keeper has the right, imder the circumstances be- 
fore detailed, to make any reasonable arrangement for extra 
compensation, the amoimt of which is left largely to the mutual 
agreement of the parties in interest, and when they mutually 
agree in respect thereto, the law will infer that the price agreed 
upon is fair and just, and the burden of proving the contrary 
is on him who alleges imposition or undue advantage. The 
agreement, to be legal, however, should be voluntary, and the 
result of mutual assent in respect to which the minds of both 
parties should meet. If, however, the hotel keeper, not con- 
tent to join in an agreement foimded on mutual assent, deter- 
mines to take advantage of the misfortime which has occurred 
in his house, makes threats to remove the guest when not in a 
condition to be removed, or threatens to remove such guest at 
a time or in a manner not warranted by the circumstances, and 
by force of such threats exacts from such guest, or her husband, 
a sum of money arbitrarily named by him, and not fixed by 
voluntary assent, nor warranted by the exigencies of the oc- 
casion, he commits a wrong which the law will not tolerate; 
he has exacted the money so obtained by duress, and acquires 
no title to it, and it can be recovered back by the person from 
whom it was wrongfully exacted." 

§ 104. Ejection for refusal to pay. 

As the innkeeper may refuse to admit a traveller at the be- 
ginning unless he will pay in advance, so he may eject him if 
after admission he falls into arrears and fails on demand to 
pay the amoimt due the innkeeper.'' 

' Doyle V. Walker, 26 Up. Can. Q. B. 502 (1867). 
[72] 



Chap. IX.] Right to Eject One Admitted. [§ 105. 

§ 105. Ejection of one who has ceased to be a traveller. 

If in the lapse of time the guest has ceased to be a traveller 
and has become a resident, he has no longer a right to demand 
entertainment, and the innkeeper may exclude him. In an 
English case it appeared that the plaintiff went to an inn in 
Brighton, was given rooms, and stayed there for a period of 
ten months. It was then intimated to her that the manager 
wished her to leave, but this she refused to do. Then notice 
was given to her requiring her to leave, and as she still refused, 
advantage was taken of her being out of the hotel, and her 
things were brought down and put outside, and on her retinrn 
she was refused admittance. She then sued the innkeeper for 
wrongfully excluding her from the inn. The court held that 
she was lawfully excluded.* Lord Esher, M. R., delivering the 
opinion of the court, said: 

"The question is whether it is the law that if a person goes 
to an ion in the character of a traveller that person retains the 
same character for any time however long. If so, the law 
would be contrary to the truth; and I will never submit, un- 
less compelled by an act of Parhament, to say that a thing shall 
be deemed to be that which it is not. Therefore, the question 
whether a person has ceased to be a traveller seems to me again 
to be a question of fact, and mere length of residence is not 
decisive of the matter, because there may be circumstances 
which show that the length of stay does not prevent the guest 
being a traveller, as, for instance, where it arises from illness; 
but it is wrong to say that length of time is not one of the cir- 
cumstances to be taken into account in determining whether 
the guest has retained his character of traveller. " 

But though the innkeeper may lawfully exclude an inmate 
after he has ceased to be technically a guest, his justification 
for such exclusion depends upon his being able to show affirm- 
atively that the former guest has ceased to have that character. 
This was the ground of decision in a Canadian case. A trav- 

8 Lamond v. Richard [1897], 1 Q. B. 541, 66 L. J. Q. B. 315, 76 L. T. 141, 
45 W. R. 289, 61 J. P. 260. 

[73] 



'§ 105.] Innkeepers. [Chap. IX. 

eller came to an inn, was received as a guest, and remained six 
weeks, paying for her board by the week; and at the end of 
that time she was ejected by the innkeeper. She was held to 
be entitled to damages.* In the course of his opinion Robin- 
son, C. J., said : 

"It was proved that the plaintiff came to this inn as a trav- 
eller or guest, and was received as such. If she did pay by the 
week as was alleged, and if she was charged for board by that 
name, that would not certainly show that she was there under 
any special contract inconsistent with the common law relation 
between an innkeeper and his guest. She had been there about 
six weeks. If she had rented a certain apartment as tenant for 
any certain term, she would have been no longer a guest; but 
what is shown is that she came to the inn as a guest ; that she 
was so received, staid there six weeks, and had paid for her 
board by the week two days in advance. Under these facts, 
we think the defendant, for all that appears, had his privilege 
of hen on the plaintiff's' goods, if she had attempted to depart 
without paying; and that she, on the other hand, had her 
rights as a guest, and could not be rudely or abruptly turned 
out without some cause to justify it; and no such cause was 
shown, nor was any pleaded. If the relation of guest had, be- 
fore the occasion complained of been put an end to, we can only 
say that it was not proved to be so upon the trial. " 

8 Whiting V. Mills, 7 Up. Can. Q. B. 450 (1849). 



[74] 



Chap. X.] Undertaking of the Innkeeper. [§ 111. 



TITLE III. 

THE UNDERTAKING OF THE INNKEEPER WITH 
HIS GUEST. 

CHAPTER X. 

the nature of the innkeeper's obligation. 



111. The obligation is imposed by 

law. 

112. Capacity to contract not re- 

quired. 



§ 113. Guest need not be the party 
bound to pay. 
114. What law governs the obliga.- 
tion. 



§ 111. The obligation is imposed by law. 

The obhgation of an mnkeeper to care for his guest is imposed 
by law, and necessarily results from the admittance of the guest 
to the inn. There is no need of a contract between the parties. 
As soon as the relation o. host and guest is estabhshed, the 
rights and duties of both parties to the relation are at once fixed. 
This is to be sure a consensual obhgation, in the sense that the 
consent of the itmkeeper as well as that of the guest is needed 
to create it. If the innkeeper refuses to receive the guest, 
though his refusal is wrongful,^ or if the guest enters the inn 
without the knowledge of the inrikeeper, and without his con- 
sent,^ the obhgation does not arise. But though consent to 
receive the guest is required, and the obhgation is a consensual 
one, it is not in any sense contractual ; and it is unnecessary to 
seek the elements of a contract in the relation between the 
parties. 

1 Bird V. Bird, 1 And. 29, Benl. 60 (Eng. 1658); Bennett v. MeUor, 5 T. 
R. (Eng.) 273 (1793). 

2 Gastenhofer v. Glair, 10 Daly (N. Y.), 265 (1881). 

[75] 



§ 113.] iNNKBfiPERS. [Chap. X. 

§ 112. Capacity to contract not required. 

For this reason it is not necessary to find in a guest the ca- 
pacity to make a contract. The relationship may be as well 
estabhshed with a person imder incapacity, an iaf ant, a married 
woman, or an insane person, as with a person entirely sui juris. 
The innkeeper is obliged to receive and entertain the guest, and 
he is obviously bound by the obligations and entitled to the 
rights flowing from the relation. As he is compelled to receive, 
"it would be a legal absurdity to compel a man to make a con- 
tract, and at the same time permit the other party, who is the 
instrument of compulsion, to avoid such contract. " ^ 

On the other hand, when a man has become and remains an 
innkeeper, a supervening incapacity on his own part will not 
protect him from responsibility. So in an old EngUsh case 
where an innkeeper was sued for failure to keep safely the goods 
of his guest, he pleaded that at the time the guest lodged with 
him he was sick and of non sane memory. On demurrer, this 
was Jield not to be a good plea. "For the defendant, if he will 
keep an inn, ought at his peril to keep safely his guest's goods; 
and although he be sick, his servants then ought carefuUy to 
look to them. And to say he is of non sane memory it heth 
not in him to disable himself. "* 

§ 113. Guest need not be the party bound to pay. 

It is not necessary even that the guest should be personally 
obliged to pay. If, for instance, a man goes with his family to 
an inn, each member of the family is a guest, though the head 
of the family alone is responsible for payment of the innkeeper's 
charges. And in general everyone who is received and enter- 
tained as a guest at an inn is a guest, though his bill is paid by 
another.^ . 

3 Watson V. Cross, 2 Duv. (Ky.) 147 (1865). The court is of course using 
the word contract in a broad and non-technical sense. See further on this 
question post, § 253. 

i Cross V. Andrews, Cro. Eliz. 622 (1598). 

5 Kopper V. Willis, 9 Daly (N. Y.), 460 (1881); Read v. Amidon, 41 Vt. 
15, 98 Am. Deo. 560 (1868). 
[76] 



Chap. X.] Undertaking of the Innkeeper. [§ 114. 

§ 114. What law governs the obligation, 

Since the obhgation of the innkeeper to his guest is created 
by the law, and not by the will of the parties, the nature of the 
obhgation depends upon the law that creates it; and since the 
law may differ in different jurisdictions, it may become impor- 
tant to determine what law it is that creates and governs the re- 
lation. The law of the place in which the guest is received by 
the innkeeper as his guest will determine the nature of the ob- 
ligation created by such reception.* 

8 Holland v. Pack, Peck (Tenn.), 151 (1823). 



[77] 



§ 122.] 



Innkeepers. 



[Chap. XI. 



SUBTITLE I. 

THE BEGINNING OF RESPONSIBILITY. 

CHAPTER XL 



THE RECEPTION OF THE GUEST. 



§ 121. Relation of host and guest es- 
tablished by reception. 
122. Reception requires communi- 
cation of intention to the 
innkeeper. 



§ 123. Traveller entering inn with- 
out presenting himself as 
guest. 

124. Refusal of innkeeper to ac- 

cept guest. 

125. Reception in another capac- 

ity than as guest. 



§ 121. Relation of host and guest established by reception. 

When a traveller comes to an inn and is received by the inn- 
keeper for the purpose of entertaining him during his journey, 
the relation of host and guest is thereby estabhshed.^ No lapse 
of time is required for the establishment of this relation ; if the 
guest presents himself for entertainment and is accepted, the 
relation "is instantly estabhshed between them." ^ 

§122. Reception requires communication of intention to the inn- 
keeper. 

To be received at an inn the guest must usually communicate 

with the innkeeper or with some servant authorized to receive 

guests; and though sometimes (as at a pubUc restaurant, part 

of the inn) one may perhaps become a guest by merely going 

1 Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657 (1867); Norcross 
V. Norcross, 53 Me. 163 (1865); Healey v. Gray, 68 Me. 489, 28 Am. Rep. 
80 (1878); Ross v.'Mellin, 36 Minn. 421, 32 N. W. 172 (1887). 

2 Norcross v. Norcross, 53 Me. 163 (1865). See to the same effect Ross 
V. MeUin, 36 Minn. 421, 32 N. W. 172 (1887). 

[78] 



Chap. XI.] Reception of the Guest. [§ 122. 

into a part of the inn provided for that purpose, that is not the 
case with the dining room of an inn of the ordinary sort. One 
entering the dining room and calling for food without notice to 
the innkeeper or his clerk does not become a guest.^ In such a 
case Judge Van Hoesen said: "There must be at least two par- 
ties to every contract, and when it is attempted to charge an 
innkeeper with Uability for the loss of goods belonging to a per- 
son who asserts that he was a guest, the inquiry is, how was 
the relation of guest and innkeeper created? No person can 
make himself a guest without the iimkeeper's assent. Of 
course, that assent may be given by an agent or a servant, 
entrusted with the duty of receiving and rejecting travellers. 
There need be no formal bargain, for the acceptance of a person 
as a guest will be implied where he calls for refreshment which 
is furnished to him by a servant who has the discretion either 
to give or to withhold it. But a man cannot make himself a 
guest by slipping into the dining room of a hotel and ordering 
a diimer of a waiter who has no discretion whatever, and who 
brings what is ordered, under the belief that the person who 
gives the order is in the dining room by permission of the inn- 
keeper. Permission to enter the dining room cannot be im- 
plied. A man can no more enter the dining room without per- 
mission, than he can enter a sleeping room, and go to bed 
without permission. He must first give the innkeeper an op- 
portunity to receive or to reject him. He could not become 
a guest without making an application to be received as such 
to Clair, or to some person authorized to act for him in such a 
matter." And Judge J. F. Daly added: "It is not the fact 
that a person does or does not take lodgings or partake of re- 
freshments in the inn that makes him a guest. It is the motive 
with which he visits the place: whether to use it even for the 
briefest period or the most trifling purpose as a pubUc house 
or not; and I think it will be long before the courts will be dis- 
posed to hold landlords liable for the property of persons who 
caU to visit their guests, and incidentally enjoy the hospitality 

3 Gastenhofer v. Clair, 10 Daly, 265 (N. Y. 1881). 

[79] 



§ 124.] Innkeepers. [Chap. XI. 

of the house. The taking of the dinner without notice to the 
proprietor or the clerk no more constituted plaintiff a guest 
than his sitting in the parlor, using the reading room or writing 
room, etc., for any period, whUe waiting for his host to appear. " 

§123. Traveller entering inn without presenting himself as guest. 

A traveller may, however, enter a public room at an inn with- 
out at once presenting himself as a guest ; and in such case the 
relation of host and guest is not estabUshed between the inn- 
keeper and himself. So a traveller who enters a pubUc room 
of an inn for a temporary purpose, without intending to lodge 
or be otherwise entertained at the inn is not a guest.'* 

As soon as the relation is estabhshed, the guest must com- 
pensate the innkeeper for his ser-vices ; and it must be clear that 
one who enters an inn does not by that mere fact become Uable 
to pay the irmkeeper's charges. Bearing this in mind, we can 
agree in the correctness of the decision in an English case where 
it appeared that a traveller went to an inn and gave his luggage 
to a porter, intending to stay at the inn, but upon being handed 
a telegram which had been sent there for him, he decided not 
to stop, but to continue his journey at once. It was held he 
had not become a guest.^ 

§ 124. Refusal of innkeeper to accept guest. 

Not only must the guest communicate his Intention to the 
innkeeper; the latter must consent to receive him as a guest. 
If the innkeeper refuses to receive a person as a guest, whether 
the refusal is legal or illegal, the relation is not estabUshed. 
Therefore when an innkeeper refuses to receive a guest (whether 
justifiably because his house is fuU, or imjustifiably), such per- 
son cannot, by placing his property in the inn, make the inn- 
keeper hable for it.* 

■• Bernard v. Lalond, 8 Leg. News (Can.), 215 (1885). 

5 Strauss v. County H. & W. Co., 12 Q. B. D. 27 (1883). 

6 Bird V. Bird, 1 And. 29, Benl. 60 (Eng. 1558); Bennett v. Mellor, 5 T. R 
(Eng.) 273 (1793). 

[80] 



Chap. XI.] Reception of the Guest. [§ 125. 

If the refusal is wrongful, the remedy is by action for the 
refusal; if it is lawful, the apphcant has no right to force the 
obUgation on the innkeeper. Thus, where the iankeeper hav- 
ing said his inn was full, the apphcant nevertheless placed his 
goods in the inn, and induced a guest to share his bed with him, 
without the consent of the innkeeper, it was held that the lat- 
ter was not responsible for the goods as innkeeper.'' 

So where an innkeeper refused to accept a guest because he 
was going to serve on a jury next morning, and the traveller at 
his request received the keys to look out for himself, the rela- 
tion of host and guest was not established.* 

§ 125. Beception in another capacity than as guest. 

A person may be received in an inn by the innkeeper, but 
in another capacity than as guest. He may, for instance, come 
to the inn on the invitation of the innkeeper as his friend, and 
not on the footing of a paying guest. The relation of host and 
guest is not estabhshed in such a case, and the responsibility 
of an innkeeper does not come into existence.^ Many cases 
considered in the following chapter are instances of this prin- 
ciple. 

7 Bird V. Bird, 1 And. 29, Benl. 60 (Eng. 1558); White's Case, 2 Dyer, 
158 6 (Eng. 1558). 

SY. B. 11 Hen. 4, 45, pi. 18 (1410). 

» Anonymous, 1 RoU. Abr. 3, pi. 4; Taylor v. Humphreys, 30 L. J. M. C. 
242 (Eng. 1861). 



[81] 



§ 131.] 



Innkeepers. 



[Chap. XII. 



CHAPTER XII. 



WHO IS A GUEST. 



§ 131. A guest need not resort to an 
inn for both food and lodg- 
ing. 

132. Whether a guest must be per- 

sonally entertained. 

133. Entertainment of servant or 

child as making master or 
father a guest. 

134. Resorting to inn to attend 

banquet or ball. 

135. One not entitled to admit- 

tance received as guest. 



§ 136. Guest at inn for illegal pur- 
pose. 
137. Guest at inn as result of ille- 
gal act. 
Difference between guest and 

boarder. 
Length of stay at inn as a 
test of the difference. 
140. Residence in the town as a 
test of the difference. 



138. 



139. 



§ 131. A guest need not resort to an inn for both food and lodging. 

It is not necessary, in order that one received at an inn 
should become a guest there, that he should resort to the inn 
for both food and lodgirig. The inn must be prepared to sup- 
ply both, at the traveller's need; but the traveller may stop 
on his way at an inn merely for food and drink, or for either 
one of them, and proceed on his journey the same day; or he 
may arrive at the inn late at night, needing lodging only, and 
leave the inn early in the morning without stopping for break- 
fast. In either case he is a guest. 

So it has been held that a traveller resorting to an inn for 
food and drink only is a guest.^ , Upon this principle where a 
person came to an inn in the afternoon, intending to leave by 
a late train that night, and therefore took no room, but re- 
mained in the public room of the inn, waiting for his train, and 

1 McDonald v. Edgerton, 5 Barb. (N. Y.) 560 (1849); Kopper v. Willis, 9 
Daly (N. Y.), 460 (1881); Read v. Amidgn, 41 Vt. 15, 98 Am. Dec. 560 
(1868). 

[82] 



Chap. XII.] Who is a Guest. [§ 132. 

intending to get supper there, it was held that he was a guest.^ 
And so where one called at an inn for the purpose of dining 
only, and was suppUed with dinner in the dining room, he was 
held to be a guest.' Even if he resorts to the inn for drink 
only, he may thereby become a guest.^ "Of course, a man 
could not be said to be a traveller who goes to a place merely 
for the purpose of taking refreshment; but if he goes to an inn 
for refreshment in the course of a journey, whether of business 
or of pleasure, he is entitled to demand refreshment. " ^ So 
in an English case where the servant of the plaintiff, having the 
plaintiff's goods, asked if he could leave the goods until next 
week, and upon the innkeeper's saying he could not yet tell 
whether he would have the room to keep them, the servant set 
down the goods and had some Uquor, and whUe he was drinking 
the goods were stolen, it was held that the relationship of host 
and guest had been established, and the innkeeper had become 
liable for the goods.* 

§ 132. Whether a guest must be personally entertained. 

Whether, in order to be a guest, a traveller must be person- 
ally entertained at the iim is somewhat doubtful on the author- 
ities. In several jurisdictions it has been held that a traveller 
who comes to town and himself lodges in a private house is not 
a guest, though he sends his servant or his horse to the inn. 
If, under such circimistances, the horse dies in the night through 
no negligence of the innkeeper, it is held that the latter is not 
liable.' 

2 Overstreet v. Moser, 88 Mo. App. 72 (1901). 

3 Orchard v. Bush, [1898] 2 Q. B. 284, 67 L. J. Q. B. 650, 78 L. T. Rep. 
557, 46 W. R. 527 (Eng. 1898); Read v. Amidon, 41 Vt. 15, 98 Am. Dec. 560 
(1868). 

* McDonald v. Edgerton, 5 Barb. (N. Y.) 560 (1849). 

6 Cockburn, C. J., in Atkinson v. SeUers, 5 C. B. N. S. (Ei^.) 442, 448 
(1858). 

8 Bennett v. MeUor, 5 T. R. 273 (1793). 

' Healey v. Gray, 68 Me. 489, 28 Am. Rep. 80 (1878); Ingallsbee v. Wood, 
33 N. Y. 577, 88 Am. Dec. 409 (1865); Neale v. Crocker, 8 Up. Can. C. P. 224 
(1858). 

[83] 



§ 132.] Innkeepers. [Chap. XII. 

But by another view it is held in such a case that the inn- 
keeper is hable as such if he receives a horse, though the owner 
do not lodge at the inn ; for he receives the horse and is paid 
for it in the course of his business as innkeeper. The majority 
of the court of Queen's Bench so held, against the opinion of 
Lord Holt ; * and this opinion has been f oUowed in Massachu- 
setts ^ and Delaware." In the opinion of the Delaware court 
Chief Justice Comegys said: "The law makes the owner a guest 
because of the compensation charged by the innkeeper. The 
liability of the traveller for that (which attaches upon the re- 
ception of the beasts) constitutes this relation of host and 
guest. It is his property that is nourished while upoii his jour- 
ney, and that in law is the same as if he had been in his own 
person the actual recipient of entertainment. It would be 
otherwise entirely of dead or inanimate things left at the inn 
by such traveller, as to which nothing would be paid to the 
innkeeper. The existence of an inn involves, in legal contem- 
plation, a stable attached to it also, and travellers with horses 
and carriages are not to be presumed to put them up at the 
iim to be kept there otherwise than as in inn stables strictly; 
whereas those not travellers in the sense I have been employing, 
but merely putting up their teams at the inn stables as a hvery 
(as is the case with persons residing near town who use such 
stables as mere conveniences), are not to be considered in the 
light of guests, and entitled to the same degree of protection 
as travellers are. " 

The Vermont authorities appear to take the same view, 
though the point is not finally determined. In the leading case 
of McDaniels v. Robinson it appeared that the plaintiff left his 
horse at the defendant's inn, and took a room in the inn and 
left goods in the room; he took only part of his meals there, 

8 Yorke v. Grenaugh, 2 Ld. Ray. 866 (1703). "For the innkeeper gains 
by the horse, and therefore makes the owner a guest, though he was absent; 
contra of goods left there by a man, because the innkeeper has no advantage 
by them." 

9 Mason v. Thompson, 9 Pick. (Mass.) 280, 20 Am. Dec. 471 (1830). 
10 Russell V. Fagan, 7 Houst. 389, 8 Atl. 258 (Del. 1886). 
[84] 



Chap. XII.] "Who is a Guest. [§ 133. 

and did not use his room every night. Some of the goods were 
lost. The innkeeper was held Uable as such, on all the facts, 
and the court intimated that putting the horse up was alone 
enough to make the plaintiff a guest." On a new trial, how- 
ever, the plaintiff was not proved to have been a guest person- 
ally; and the leaving of the goods which were lost had nothing 
to do with the stabling of the horse. For this reason (without 
denying that the innkeeper would have been liable as such for 
injury to the horse) the court gave judgment for the defend- 
ant." 

§ 133. Entertainment of servant or child as making master or 
father a guest. 

Where a man's servant (or minor child) with his property is 
received at an inn, it has been said that the master (or father) 
is a guest, and has the rights of such.^^ It is clear, however, 
that the servant or child who is personally present at the inn 
is himself a guest, even if the master or father accompanies him 
and pays the bill,^^ a fortiori if he is not present. It would 
seem that since there is but one person present, obtaining en- 
tertainment, and as but one guest is paid for, there is but one 
guest; and the absent master or father is therefore not prop- 
erly a guest. The point actually decided in the cases is that the 
innkeeper is directly liable to the master or father, as owner, 
for a loss of the goods; and the true reason for the decision is 
doubtless that in the mind of the court in Robinson v. Waller, ^^ 
when it distinguished the case from that where the goods were 
taken to the inn by a bailee on the ground that in the case 
under discussion "the absolute property" is in the owner. In 
other words, the father or master being in legal possession of 

11 McDaniels v. Robinson, 26 Vt. 316, 62 Am. Dec. 574 (1854). 
izMcDaniels v. Robinson, 28 Vt. 387 (1856). 

13 Robinson v. Waller, 1 Roll. Abr. 3, pi. 7 (Eng. 1617); Coykendall v. 
Eaton, 55 Barb. 188, 37 How. Pr. 438 (N. Y. 1869); Epps v. Hinds, 27 Miss. 
657, 61 Am. Dec. 528 ^1854). 

14 Ante, § 113. 

15 Supra. 

[85] 



§ 134.] Innkeepers. [Chap. XII. 

the goods while they are in the hands of the servant or mem- 
ber of his family, he may sue the umkeeper directly, as the 
person whose possession has been infringed. 

§ 134. Resorting to inn to attend banc[uet or ball. 

Where a banquet or a ball is held at an inn, a guest at such 
banquet or ball is not a guest of the innkeeper, and the latter 
is not hable, in the absence of neghgence, for any goods lost 
by the guest.^® In such a case Judge Blodgett said: "As to 
the banquet where the loss occurred, and which they attended 
on the invitation and at the expense of the club, the plaintiffs 
are justly to be regarded as its guests, and not of the defendant, 
as umkeeper or otherwise, who simply provided the banquet as 
caterer under a contract with the club, without any hen or 
claim for compensation against its guests, and with no right or 
power to exclude anybody from participating in its festivities 
whom the club might properly invite. Neither by contract nor 
by operation of law was the defendant acting in the character 
of innkeeper as to the club, and still less as to its guests, who 
would have had no right whatever to attend except upon its 
invitation. Both the club and its guests came, not as ordinary 
travellers to an inn, but as to a banquet, for the purpose of par- 
ticipating in and enjoying its festivities. " " 

The fact that the innkeeper himself supplies the banquet, so 
that the persons present are being furnished entertainment by 
him for hire, does not alter the case. On this point Judge Blod- 
gett well said, in Amey v. Winchester, ^^ "the fact that the de- 
fendant chanced to be keeping an inn, and served the banquet 
there, makes his liability no greater than that of any other per- 
son not an innkeeper, who might have taken and executed the 

16 Carter v. Hobbs, 12 Mich. 52, 83 Am. Dec. 762 (1863); Amey v. Win- 
chester, 68 N. H. 447, 39 Atl. 487, 39 L. R. A. 760 (1896). But in Bourgoin 
V. Hogan, 15 L. Can. R. 424 (1864), the innkeeper was held liable in such a 
case for the loss of a coat of which he took charge, and for which he issued a 
check. 

17 Amy V. Winchester, supra. 

18 Supra. 

[86] 



Chap. XII.] Who is a Guest. [§ 135. 

contract, either at the inn or elsewhere. One may be an inn- 
keeper without being a club caterer, or he may be a club caterer 
without being an innkeeper, or he may be both; but, if he is, 
the two employments are so far separate and distinct in respect 
of duties and liabilities as not to make him responsible in the 
one capacity for habilities incurred in the other. " The case is 
the same even if the guest at the ball or banquet deal in other 
ways directly with the innkeeper, as by buying hquor, or put- 
ting up his horse in the stable of the inn.^^ 

Nor is th6 case altered even if the innkeeper is himself the 
person who gives the entertainment and invites the pubUc to 
be present. 

So, where an innkeeper gave a ball and fm-nished food and 
drink to a person attending the ball, he was held not to be an 
innkeeper in so doing, though one who resorted to him as an 
innkeeper and was provided with the same refreshment would 
become a guest. In this case the innkeeper, the court said, 
was in the position of any owner of a ballroom who should do 
the same. It is not the amoimt of refreshment but the char- 
acter under which the person buys it that makes him a 
guest.^" 

In the case of Amey v. Winchester,^' a person who was ap- 
parently a guest at the inn, attended such a banquet, leaving 
his hat at the door of the supper room, and it was lost during 
the banquet. The court held that the owner was not a guest 
at the time, and the innkeeper was not liable. It may be 
doubted whether in this case the court did not go too far; for 
it is difficult to see how the guest ceased to be such by attending 
the banquet at his inn. 

§ 135. One not entitled to admittance received as guest. 

Even a person not entitled to demand admittance, not being 

19 Carter v. Hobbs, 12 Mich. 52, 83 Am. Dec. 762 (1863); Fitch v. Casler, 
17 Hun (N. Y.), 126 (1879). 

20 Fitch V. Casler, 17 Hun (N. Y.), 126 (1879). 

21 68 N. H. 447, 39 Atl. 487, 39 L. R. A. 760 (1896). 

[87] 



§ 136.] Innkeepers. [Chap. XII. 

a bona fide traveller, will become a guest and entitled to all the 
rights of a guest if he is received voluntarily in the inn upon 
the footing of a guest. The innkeeper has a right to refuse to 
receive him, but that right he may waive ; and he does waive 
it by consenting to receive the guest. Thus it is usually stated 
that one who Uves in the same town with the innkeeper cannot 
be a guest, since he is not a traveller seeking entertainment 
during his journey. While it is true that such a person is often 
received to be entertained out of friendship merely, and there- 
fore is not a guest,^^ yet if he is really received on the footing of 
a guest the relation of host and guest is thereby estabUshed.^^ 

§ 136. Guest at inn for illegal purpose. 

Where a person went to an inn with a prostitute and took a 
room which he occupied with her, it was held that on account 
of his misconduct he did not become a guest, any more than a 
thief would who took a room to steal from the guests.^* It is 
clear in this case, as the court says, that if the innkeeper had 
been aware of the party's purpose in applying for the room, he 
might have refused to receive him; and even after the appli- 
cant had been received, he could have been ejected upon his 
purpose becoming known. It does not follow, however, as the 
court appeared to hold, that therefore he was not a guest. The 
court says that if he had been a guest " he could not have been 
turned into the street, though his profligate conduct was out- 
raging all decency and ruining the reputation of the hotel." 
This dictum can hardly be supported; for, as has been seen,^^ 
the innkeeper would certainly have a right to turn out a guest 
under such circtimstances. And though the innkeeper would 
have been justified in refusing to receive the apphcant as a 
guest, it by no means follows that if he was received the apph- 
cant did not occupy the exact position of a guest. The inn- 

22 Ante, § 125. 

23 WaUing v. Potter, 35 Conn. 183 (1868); Orchard v. Bush, [1898] 2 Q. B. 
284, 67 L. J. Q. B. 650, 78 L. T. Rep. 557, 46 W. R. 527 (Eng. 1898). 

24 Curtis V. Murphy, 63 Wis. 4, 22 N. W. 825, 53 Am. Rep. 242 (1885). 

25 Ante, § 102. 

[88] 



Chap. XII.] Who is a Guest. [§ 137. 

keeper can doubtless waive his right to refuse admittance and 
accept an appUcant as his guest; though it is equally clear that 
he may if he choose, accept him on such terms that he will not 
be a guest.^* In this case the applicant was received as a 
guest. He, however, was guilty of fraud in asking for accom- 
modation for himself and wife ; and the decision may probably 
best be supported on the groimd that the guest was precluded 
from recovery in the case because of his fraud. 

As Mr. Justice Kennedy said in Orchard v. Bush -P " If a man 
is in an inn for the purpose of receiving such accommodation 
as the innkeeper can give him, he is entitled to the protection 
the law gives to a guest at an inn. " 

§ 137. Guest at inn as result of illegal act. 

However it may be with the guest who is acting illegally 
while in the inn, it is clear that he is none the less a guest be- 
cause he may have been guilty of an illegal act in coming to 
the inn, if his illegal conduct has ceased. Thus in a similar case 
to the one just discussed where the man remained after the 
woman had left the inn, and lost his goods, it was held that he 
might recover from the innkeeper. Even assuming that such 
misconduct would have barred him while the misconduct con- 
tinued, the loss here happened after his misconduct ceased, and 
his previous immorahty could not affect his subsequent status 
as a guest.^* 

On the same principle, in a case where it appeared that the 
defendant was received at the inn on Sunday, and that to reach 
the inn on that day he had broken the statute which forbade 
travelling on Sunday, he was held to be a guest nevertheless, 

MAnte, §125, 135. 

27 Supra. 

28 Lucia V. Omel, 46 App. Div. (N. Y.) 200, 61 N. Y. S. 659 (1899), affirmed 
53 App. Div. 641, 66 N. Y. S. 1136 (1900). The facts differed from the Wis- 
consin case (which was distinguished in the opinion) in two important par- 
ticulars: In the Wisconsin case the plaintiff was a resident of the same town, 
which does not seem to have been true in this case; and the innkeeper had 
wrongfully refused to take charge of the property before its loss. 

[89] 



§ 139.] Innkeepers. [Chap. XII. 

since the relationship was estabUshed by acts not necessarily 
connected with travelling on Sunday.^* 

§ 138. Difference between guest and boarder. 

An innkeeper may, and commonly does, entertain not merely 
transient guests, but other persons who stay at the inn for a 
considerable period, making in fact lieir residence there ; such 
persons are boarders, not guests.^" 

If a person is at an inn for entertainment, the question 
whether he is a guest or a boarder is a question of fact.^^ 

The relation of innkeeper and guest once being established 
will be presumed to continue imtil the contrary appears, and 
not to be changed to the relation of host and boarder. The 
relation is not necessarily and conclusively changed by an agree- 
ment as to price, or any definite length of sojourn.^^ 

§ 139. Length of stay at inn as a test of the difference. 

When one is staying at the inn under a contract by which he 
is to remain there a certain considerable time, and in return 
gets a special rate for board, he is presumably a boarder.^^ 

In a California case the facts were that the plaintiff went to 
the inn to ascertain if it was a place where the health of his wife 
would be benefited, with the determination to rema,in there 
indefinitely, perhaps for a very long time, if such should be the 

28 Cox V. Cook, 14 AUen (Mass.), 165 (1867). 

soWaJling v. Potter, 35 Conn. 183 (1868); Hall v. Pike, 100 Mass. 495 
(1868); Horner v. Harvey, 3 N. Mex. 197, 5 Pac. 329 (1885); Jeffords v. 
Crump, 12 Phila. (Pa.) 500 (1878); Lawrence v. Howard, 1 Utah, 142 (1874). 

81 Haff V. Adams (Ari. 1899), 59 Pac. Ill; Magee v. Pacific Improvement 
Co., 98 Cal. 678, 33 Pac. 772 (1893); PoUock v. Landis, 36 la. 651 (1873); 
Hall V. Pike, 100 Mass. 495 (1868); Hancock v. Rand, 94 N. Y. 1, 46 Am. 
Rep. 112 (1883); Light v. Abel, 6 AEen (New Br.), 400 (1867). 

32 Ross V. MeUin, 36 Minn. 421, 32 N. W. 172 (1887). 

S3 Haff V. Adams, 6 Ari. 395, 59 Pao. Ill (1899); Moore v. Long Beach 
Development Co., 87 Cal. 483, 26 Pac. 92, 22 Am. St. Rep. 265 (1891); Shoe- 
craft V. Bailey, 25 la. 553 (1868); Johnson v. Reynolds, 3 Kan. 257 (1865); 
Smith V. Keyes, 2 Th. & C. (N. Y.) 650 (1874); Meacham v. GaUoway, 102 
Tenn. 415, 52 S. W. 859 (1899); ex parte M'Manus, 6 Austral. L. T. (Vict.) 
12 (1884). 

[90] 



Chap. XII.] Who is a Guest. [§ 139. 

case; but with a view, if her health did not improve, to leave 
at any time. Before going there with his family he had made 
an arrangement for terms of entertainment at a great deal less 
than those for a transient traveller, and by the month, and he 
went prepared to stay, if he desired, for a considerable time, 
and to enjoy all the gayeties that might take place. He had 
no other place of residence, and for the time being this inn was 
to be such. It was evidently the hope and the expectation of 
the plaintiff and wife that her health would be benefited at this 
inn, which was a pleasure resort, its principal business season 
being that of the summer. These facts, the court said, were 
"very persuasive that it was the intention of all the parties 
that he should be a boarder, and not a mere transient traveller 
or guest^ and for the time being a resident in the place where 
he was intending to board;" and the court refused to disturb 
the finding of the court below, that the plaintiff was a boarder.^^ 
In the late case of Crapo v. Rockwell,^^ the plaintiff went to 
Albany in September, 1902, having just prior thereto married 
John M. Crapo, a business man of that city. With her husband 
she Uved in various boarding houses mitil September, 1903, 
when they took rooms at the Ten Eyck Annex, the defendant's 
inn, where, with the exception of an absence of about five 
weeks at Bar Harbor, plaintiff continued to reside until Feb- 
ruary, 1905. The loss occurred in January of the latter year. 
Plaintiff's husband died at the Annex in November, 1904. He 
had resided and been in business in Albany since his marriage 
to plaintiff, and prior thereto. After their marriage he trans- 
ferred his business to the plaintiff, and at the time of the trial 
she was still conducting the same in Albany. Neither she nor 
her husband had any other residence than the inn during the 
time they were there. The court held that she was a boarder, 
not a guest; and the controlling reasons appear to have been 
the length of her stay at the inn and the fact that she had no 

a Moore v. Long Beach Development Co., 87 Cal. 483, 26 Pac. 92, 22 Am. 
St. Rep. 265 (1891). 

35 94 N. Y. Supp. 1122 (1905). 

[91J 



§ 140.] Innkeepers. [Chap. XII. 

other residence in the town, though she unquestionably Hved 
there. It was not possible, the court said, to regard her in the 
light of a transient guest. 

But the mere fact that he has stayed for a week or longer, 
and that he is paying the weekly rather than the daily rate, 
does not prove that he is a boarder.^* 

A lumberman, doing business on the river, went to a hotel, 
and, after remaining two or three days, informed the hotel keeper 
that he should be there frequently during the summer, and de- 
sired some deduction in the regular charge of the hotel ; and it 
was agreed to keep him for one dollar per day, the regular price 
being two dollars. Nothing was said as to the length of time 
he expected to remain. He was held to be a guest.'^ In a 
case in the Supreme Court of Jamaica, one who was staying 
at an inn while he was in attendance at a sitting of the court 
was held to be a guest.^* 
§ 140. Besidence in the town as a test of the difference. 

The determination of the question whether one who is stay- 
ing at an inn is a guest or a boarder may depend upon whether 
the person is a resident of the town or a stranger. So a for- 
eigner visiting the country and staying for a considerable time 
at a hotel was held a guest,^^ and a resident of another town, 
visiting the town where the inn was situated for business pur- 
poses merely, was held to be a guest.^" 

38Beale v. Posey, 72 Ala. 323 (1882); Pinkerton v. Woodward, 33 Cal. 
557, 91 Am. Dec. 657 (1867); Fay v. Pacific Improvement Co., 93 Cal. 253, 
26 Pac. 1099, 28 Pac. 943, 27 Am. St. Rep. 943, 16 L. R. A. 188 (1891); 
Magee v. Pacific Improvement Co., 98 Cal. 678, 33 Pac. 772 (1893); Shoe- 
craft V. Bailey, 25 la. 553 (1868); Pollock v. Landis, 36 la. 651 (1873); 
Berkshire Woolen Co. v. Proctor, 7 Cush. (Mass.) 417 (1851); Hall v. Pilce, 
100 Mass. 495 (1868); R. L. PoUi & Co. v. Melenbaoker, 136 Mich. 611, B9 
N. W. 867 (1904); Ross v. MeUin, 36 Minn. 421, 32 N. W. 172 (1887); Metz- 
ger v. Schnabel, 23 N. Y. Misc. 698, 52 N. Y. Supp. 105 (1898); Lima v. 
DwineUe, 7 Alb. L. J. 44 (N. Y. 1873); Jalie v. Cardinal, 35 Wis. 118 (1874); 
Whiting V. MiUs, 7 Up. Can. Q. B. 450 (1849). 

37 Shoecraft v. Bailey, 25 la. 553 (1868). 

38 Jaquet v. Edwards, 1 Jamaica, 4 (1867). 

30 Metzger v. Schnabel, 23 N. Y. Misc. 698, 52 N. Y. Supp. 105 (1898). 
•lo Beale v. Posey, 72 Ala. 323 (1882). 
[92] 



Chap. XII.] Who is a Guest. [§ 140. 

On the other hand, an employee of a railroad, making his 
regular trips, and stopping over at each end of his route at the 
hotel, where he rents a room by the month, is not a guest. He 
is, as the court said, "a citizen of the commimity at both ends 
of the route. " *^ So where a man breaks up his home and goes 
to a hotel in the same town, he is a boarder.^^ 

Where a man sent his family to an inn in a distant city and 
they remained there for several months, while he made them 
an occasional short visit, his family were boarders and he was 
a guest.^^ 

One of the most important cases involving the distinction 
between a guest and a boarder is the New York case of Han- 
cock V. Rand.*^ The husband of the plaintiff. General Hancock, 
was an officer in the United States army, and in November, 
1873, he applied for rooms and board at the defendants' hotel 
for himself and family. After some conversation between the 
innkeeper and Hancock, in regard to himself and family re- 
maining at the hotel, m which certain rooms in a private house 
adjoining said hotel, which the defendants were then using in 
connection with the same, were mentioned, it was said by Gen^ 
eral Hancock that he expected to remain until the following 
summer, provided everything was satisfactory, and provided, 
also, he was not sooner ordered elsewhere on military duty. 
The defendants offered the terms which they would take for 
said rooms, which terms General Hancock accepted on the un- 
derstanding that he should continue to occupy them imtil the 
next following spring or stunmer, provided everything was sat- 
isfactory, and provided, also, he was not sooner ordered away 
on miUtary duty. General Hancock and family, immediately 
prior to their going to the hotel of the defendants, had been 
boarding at another hotel in New York city, and had no per- 
il Horner v. Harvey, 3 N. Mex. 197, 5 Pac. 329 (1885). 

« Haff V. Adams, 6 Ari. 395, 59 Pac. Ill (1899); Meacham v. Galloway, 
102 Tenn. 415, 52 S. W. 859 (1899). 

« Lusk V Belote, 22 Minn. 468 (1876). 

« 94 N. Y. 1, 46 Am. Rep. 112 (1883), affirming S. C, 17 Hun, 279. 

[93] 



§ 140.] Innkeepers. [Chap. XII. 

manent home anjrwhere; and prior to the year 1873 and ever 
since that time the home of General Hancock had been where- 
ever his mihtary headquarters were, and such headquarters 
duririg that time had been at different places. The court held 
that Mrs. Hancock was a guest, not a boarder. An examina- 
tion of the opinion at length will be instructive, and will show 
the spirit ia which a court approaches the question imder dis- 
cussion. 

"As a soldier, General Hancock was unable to acquire a per- 
manent home, and by reason of his profession was obliged to 
live temporarily and for imcertain periods of time at different 
places and with innkeepers and others who make provision for 
the entertainment of guests and travellers. He was necessarily 
a transient person liable to respond to the call of his superiors 
at any moment and to change the locahty of himself and fam- 
ily. The defendants kept a hotel or inn, taking care of tran- 
sient guests, some staying for a longer, some for a shorter, period. 
General Hancock, for himself and family, paid for their meals 
the same as other transient guests, and by express agreement 
they were at hberty to leave at any time they saw fit. Under 
these circumstances no reason exists why they should not be 
protected as well as the other" travellers or guests at the hotel. 
It is very evident, from the testimony, that no absolute and 
express contract was made for the hiring of the rooms and the 
board of General Hancock and his family for any stipulated 
period of time, and the most that can be claimed, on the part 
of the appellants, is that it was a question of fact for the con- 
sideration of the referee and for him to determine whether 
General Hancock and family were travellers and guests or board- 
ers. On the one hand, as already stated, General Hancock was 
a transient person and could not depend upon remaining for 
any particular period of time at any place ; he was without any 
permanent residence or home, and it positively appears that 
he made no arrangement for any permanent occupation of the 
rooms at defendants' hotel. On the other hand, separate apart- 
ments were kept for boarders and for transient persons by the 
[94] 



Chap. XII.] Who is a Guest. [§ 140. 

defendants, and the general and his family were registered 
among the former, but it does not appear that he knew this 
fact, and hence it cannot well be claimed that he had grounds 
for supposing and understood that he and his family were 
boarders and not guests. The authorities hold beyond ques- 
tion that the fixing of the price does not make the party a 
boarder. 

"The fair intendment from the evidence is that General Han- 
cock did not go to defendants' hotel under a contract hiring the 
rooms for a season, but that he was a transient person who had 
the right to leave at any moment, the same as any other guest. 
Regarding the evidence as it stands, and conceding the facts 
in reference to the question whether General Hancock and fam- 
ily were travellers and guests or boarders, there would seem to 
be but little question that the weight of the testimony is in favor 
of the proposition that they were travellers or wayfarers and 
that there was no hiring of the rooms of the defendants for a 
season or a specified time. Even if there might have been a 
doubt as to whether there was a hiring for a term, as the ref- 
eree has found in favor of the plaintiff upon this question, we 
cannot disturb the finding and it should be upheld. 

" In considering the question discussed it should not be over- 
looked that the St. Cloud Hotel was kept as a public inn in 
every sense and was clearly distinguishable from a boarding 
house; its proprietors did not claim that it was a boarding 
house, and there is no evidence to show that it was considered 
in that light, and neither the fixing of the price nor the conver- 
sation had in reference to the probability of General Hancock 
and family remaining for a period of time could alter or change 
its true character. Hotels in modem days are differently con- 
ducted from what they were in times gone by. Furnishing 
rooms at a fixed price and meals at prices depending upon the 
orders given at the usual hotel rates constitutes a material dif- 
ference in the system of keeping hotels from that which for- 
merly existed. The defendants conducted a restaurant in 
connection with their hotel, at which meals were furnished in 

[95] 



§ 140.] Innkeepers. [Chap. XII. 

accordance with fixed prices. General Hancock and family, 
after the first month of their stay at the defendants' hotel, and 
at the time the property in question was stolen, took their meals 
at the restaurant, for which they paid prices for each meal the 
same as other guests or travellers. So far then as this is con- 
cerned they must be considered the same as other guests. 
Certainly they were not boarders in the sense in which that 
term is imderstood. As they were guests at the restaurant at 
the time when the loss occurred and paid as such, it is diffi- 
cult to see upon what principle it can be urged that they 
were boarders because their lodgings were in the hotel or in 
rooms connected therewith. To sustain such a rule would 
make them boarders in part and guests in part. This would 
be unreasonable, the more so in this case, because the proof 
does not estabhsh a contract for any fixed time. " 

The gist of the case was summed up in these words: "As a 
soldier, General Hancock was imable to acquire a permanent 
home, and by reason of his profession was obliged to live tempo- 
rarily and for uncertain periods of time at different places, and ' 
with innkeepers and others who make provision for the entertain- 
ment of guests and travellers. He was necessarily a transient per- 
son, Uable to respond to the call of his superiors at any moment, 
and to change the locahty of himself and family. " 



[96] 



Chap. XIII.] Responsibility for the Guest's Goods. [§ 141. 



CHAPTER XIII. 

undertaking op responsibility for the guest's goods. 



§ 141. Ways of creating responsibil- 
ity. 
Topic I. Goods within the pre- 
cincts of the inn. 
Subtopic A. Goods bailed to 
the innkeeper. 

142. Responsibility begins at mo- 

ment of bailment. 

143. Responsibility conditioned on 

owner becoming guest. 

144. Delivery to a servant of the 

innkeeper. 

145. Delivery by custom. 

146. Delivery by a third person for 

a guest. 

147. Delivery to the innkeeper or 

servant in another capacity. 
Subtopic B. Goods brought 
with the guest. 



§ 148. Responsibility of innkeeper 
extends to goods in posses- 
sion of guest. 

149. Goods must be within general 

control of innkeeper. 

150. Iimkeeper's responsibility for 

merchandise. 

151. Special arrangement made by 

the guest. 

152. Goods brought by guest to 

inn after his own arrival. 
Topic II. Goods outside the inn. 

153. Innkeeper not generally re- 

sponsible for goods taken by 
the guest outside the inn. 

154. Goods placed outside the inn 

by the innkeeper. 

155. Goods placed in customary 

place outside the inn by 
guest. 



§ 141. Ways of creating responsibility- 

The innkeeper may or may not be an actual bailee of the 
goods brought to the inn by the guest ; whether he is or is not 
a bailee, his responsibiUty for goods for which he is answerable 
at all as irmkeeper is the same. When a guest comes to an inn 
he always keeps in his own possession and control certain goods, 
such, for instance, as wearing apparel ; while other goods he is 
Ukely to hand to the innkeeper for safe custody. The innkeep- 
er's responsibiUty extends to both classes of goods ; but the cre- 
ation of responsibiUty is due to diiferent circumstances in the 
two cases. They are, therefore, to be dealt with separately. 
7 [97] 



§ 142.] Innkeepers. [Chap. XIII. 

Furthermore, while the innkeeper is usually responsible for 
goods of a guest within the precincts of the inn, he is not usually 
responsible for goods outside the precincts of the inn. It is 
therefore necessary to examine separately the case of goods 
outside the inn. 

TOPIC I. 

GOODS WITHIN THE PRECINCTS OF THE INN. 

SUBTOPIC A. 

GOODS BAILED TO THE INNKEEPER. 

§ 142. Responsibility begins at moment of bailment. 

Where the goods are actually given into the possession of the 
innkeeper, the Habihty as innkeeper begins at latest at the mo- 
ment of delivery to the innkeeper ; and therefore the innkeeper 
may become responsible for the goods of a guest, even before 
the relationship of host and guest is established. This often 
happens where the innkeeper sends a conveyance to a railroad 
station to bring guests to his inn. When, in such a case, a 
traveller gives his baggage to the porter or other person author- 
ized by the innkeeper to take it, the innkeeper becomes Uable 
for it at once, provided the traveller later becomes a guest.^ 

Even if the baggage itself is not given to the servant of the 
innkeeper, but only the check for it, the case would seem to be 
the same. "If it should appear that the trunk was not deliv- 
ered by the railroad company, the innkeeper would not be ha- 
ble. Being boimd to extraordinary diligence in the preserva- 

iCoskery v. Nagle, 83 Ga. 696, 10 S. E. 491, 20 Am. St. Rep. 333, 6 
L. R. A. 483 (1889); Williams v. Moore, 69 111. App. 618 (1897) (arrangement 
made by innkeeper with a baggage transfer company to receive and bring 
to the inn the guest's baggage.) Dickinson v. Winchester, 4 Cush. (Mass.) 
114 (1849). In this case the court said the innkeeper, who provided the 
conveyance, was liable from the receipt of the baggage either as innkeeper 
or as common carrier. The latter alternative does not seem admissible, and 
the case is always taken as establishing innkeeper's liability. 

[98] 



Chap. XIII.] Responsibility for the Guest's Goods. [§ 143. 

tion of the baggage delivered him by guests, it is incumbent on 
the innkeeper to show that the trunk was not received by him 
or his servants. The guest makes out a case, prima facie, 
when he shows the dehvery of the check to the servant within 
the scope of whose, employment was the getting of baggage 
and delivering it to the guests, and that the innkeeper has re- 
fused to deUver to him the baggage or the check. " ^ 

Strictly speaking, no doubt, the liability of the innkeeper is 
only for the check, and if the innkeeper produced the check and 
showed sufficient reason for not having obtained the baggage 
he would no doubt perform his whole duty ; but responsibility 
for the safety of the check and for the proper use of it is placed 
on the innkeeper as soon as the check is handed to his servant. 

A similar state of affairs exists when the goods of an intend- 
ing guest are sent to the inn and delivered there before the 
guest arrives. The innkeeper is obviously not obliged to accept 
the goods imder these circumstances, but if he does so and the 
guest afterwards arrives and remains, the responsibihty of the 
innkeeper for the goods begins at the moment they are re- 
ceived.* 

§ 143. Besponsibility conditioned on owner becoming guest. 

It must clearly be seen, however, that in all these cases the 
responsibihty of the innkeeper is conditioned on the owner of 
the goods becoming a guest within a reasonable time. Al- 
though at the time the goods are given to the innkeeper the 
owner bona fide intends to become a guest, still if he changes his 
mind and does not do so the iimkeeper will be regarded as not 
responsible as such for the goods. So where the traveller gave 
his luggage to the; porter of the inn at the railroad station, and 
the porter carried it to the inn, but the owner never became a 
guest, it was held that the innkeeper never became responsible 
for it as innkeeper.* And in a similar case where the traveller 

2Carhart v. Wainman, 114 Ga. 632, 40 S. E. 781 (1902) Ace. Williams v. 
Moore, supra. 

3 Eden v. Drey, 17 111. App. 102 (1898). 

^Tulane Hotel Co. v. Holohan, 112 Tenn. 214, 79 S. W. 113 (1904). 

[99] 



§ 143.] Innkeepbes. [Chap. XIII. 

went to the office of the inn, but there found a telegram ad- 
dressed to him, in consequence of which he did not register, but 
went to another place, the innkeeper did not become respon- 
sible.* 

In both these cases it will be noticed that if the traveller had 
become a guest the innkeeper's responsibiUty for the goods 
would have dated from the moment when the porter took 
charge of them at the railroad station ; but as the owner never 
became a guest, the innkeeper was not Uable as such even dur- 
ing the time while the traveller was on his way to the hotel. 
In other words, during that period the responsibiUty is doubt- 
ful; and it is settled only by the event. 

Where the check for the baggage is delivered to the porter 
of the hotel by one who does not intend to become a guest, it 
is obvious that the porter has no authority to accept the goods 
on behalf of the hotel ; and the innkeeper would not be respon- 
sible for the goods even as bailee. Even if he deposited the 
goods in the hotel office, without calling the attention of the 
proper clerk to it, the innkeeper is not responsible as innkeeper 
or even as ordinary bailee; "it is the same as if the porter had 
gratuitously brought up the valise of a friend or a stranger and 
put it down in the hotel office without calling any attention to 
it or giving the hotel employees any notice of it, and no occa- 
sion existing for them to take charge of it. " The porter indi- 
vidually is the bailee.* 

The case would seem, however, to be different if the owner, 
at the time he gives the goods to the porter, bona fide intends to 
become a guest within a reasonable time. The porter's author- 
ity as distinguished from the innkeeper's responsibility, must 
be determined by the facts existing at the time he takes the 
goods; and at that time the facts are the same as in any case 
of the sort where the owner carries out his intention and be- 
comes a guest. If the owner acts bona fide the porter has au- 
thority to receive the goods for the innkeeper and the latter is 

6 Strauss v. County H. & W. Co., 12 Q. B. D. (Eng.) 27 (1883). 
oTulane Hotel v. Holohan, 112 Tenn. 214, 79 S. W. 113 (1904). 
[100] 



Chap. XIII.] Responsibility for the Guest's Goods. [§ 146. 

a gratuitous bailee. In the case just cited, however, the owner 
intended, at the time he gave his valise to the porter, to be- 
come a guest; but the distinction indicated was not made by 
the court, and the innkeeper was held not to be even a bailee. 

§ 144. Delivery to a servant of the innkeeper. 

Where goods are placed directly in the custody of the inn- 
keeper they are usually given, not to the innkeeper himself, but 
to a servant. If it is desired to hold the innkeeper liable for 
a receipt of the goods by his servant, it is, of course, essential 
to prove the service. But it is, clearly, enough to prove appar- 
ent authority on the part of the servant, as for instance, when 
he is in the inn and clothed with the appearance of service 
there.'' Thus, ordinarily, a proper person with whom to deposit 
valuables is the person who stands in the office and assigns 
rooms to guests.* 

§ 145. Delivery by custom. 

DeUvery may be made to the innkeeper by custom without 
an actual manual transfer. This is usually accomplished by 
putting the goods in a certain place in an open manner. Thus, 
where such is the custom the innkeeper may be held as bailee 
without showing actual knowledge on his part of the dehvery 
where a baggage transfer company put the guest's baggage on 
the platform of the hotel and shouted "baggage," ' or on the 
sidewalk in front of the hotel and rang the porter's bell.^° 

§ 146. Delivery by a third person for a guest. 

In order to be responsible for a guest's goods as innkeeper, 
it is not necessary that the innkeeper receive the goods from 
the guest himself. The goods may be delivered to the inn- 

7 Rockwell V. Proctor, 39 Ga. 105 (1869); Labold v. Southern Hotel Co., 
54 Mo. App. 567 (1893); Buckle v. Probasco, 58 Mo. App. 49 (1894); Houser 
V. Tully, 62 Pa. 92, 1 Am. Rep. 390 (1869); Curtis v. Murphy, 63 Wis. 4, 
22 N. W. 825, 53 Am. Rep. 242 (1885). 

8 Buckle V. Probasco, supra; Curtis v. Murphy, supra. 
•Maloney v. Bacon, 33 Mo. App. 501 (1888). 

»» Becker v. Haynes, 29 Fed. 441 (1887). 

[101] 



§ 148.] Innkeepers. [Chap. XIII. 

keeper by a third person to hold for the guest; and in that case 
the responsibility for the goods is that of an innkeeper." 

And accordingly where an innkeeper was accustomed to re- 
ceive and take charge of packages brought to the inn by trades- 
men for guests, he was held to be responsible as innkeeper for 
such packages as soon as he received them; although he might 
perhaps not have been bound to receive the packages. He had 
made it part of his business to receive the packages.^^ 

§ 147. Delivery to the innkeeper or servant in another capacity. 

If goods are delivered to the innkeeper it may be shown that 
he had them, not as innkeeper but in some other capacity.^' 
And if goods are handed to a servant of the innkeeper, it 
is open to the innkeeper to show that they were given to such 
servant not as acting for the innkeeper, but merely to hold as 
a friend of the owner. ^^ Whether they are given to the inn- 
keeper, or the servant, in respect of the innkeeper's pubhc call- 
ing, or as a private matter, is a question of fact in each case.*^ 

SUBTOPIC B. 

GOODS BROUGHT WITH THE GUEST. 

§ 148. Responsibility of innkeeper extends to goods in possession 
of the guest. 

In order for the innkeeper to become responsible for the 
goods of his guest it is not necessary that the possession of 
them should be given up to the innkeeper; so where the inn- 
keeper gives the guest a key to his room and the guest takes 
the goods to his room and keeps them there, the innkeeper is 
hable for the safety of the goods.^" 

"Western U. T. Co. v. Trissal, 98 Ind. 566 (1884). 

12 Needles v. Howard, 1 E. D. Smith (N. Y.), 54 (1850). 

13 Bemon v. Watson, 1 Roll. Abr. 3, pi. 1. 
"Sneider v. Geiss, 1 Yeates (Pa.), 34 (1791). 
isHouser v. TuUy, 62, Pa. 92, 1 Am. Rep. 390 (1869). 

18 Y. B. 42 Ed. 3, 11, pi. 13 (1367); 11 H. 4, 45, pi. 18 (1410); Fay v. Pa- 
cific Imp. Co., 93 Cal. 253, 26 Pac. 1099, 28 Pac. 943, 27 Am. St. Rep. 198, 
[102] 



Chap. XIII.] Responsibility for the Guest's Goods. [§ 150. 

So where a guest places his overcoat or gloves in the place 
provided for them in the inn, although the innkeeper is not 
notified of the fact, the hability of the innkeeper attaches.^' 

And so where the guest's personal baggage is placed in a pub- 
Uc room in the inn, without the knowledge of the innkeeper, 
or even by the special request of the guest, the innkeeper is 
liable." 

§ 149. Goods must be within general control of innkeeper. 

But while it is not necessary, in order to make the innkeeper 
responsible for the goods, that they should be delivered into his 
possession, still they must be within his general care and con- 
trol. If the guest himself undertakes the care of them, or if 
he makes a special arrangement by which the control of them 
is removed from the innkeeper, the latter is not liable.^* Thus 
in an old case the innkeeper gave notice to a guest that he could 
not receive him, because he was obUged to leave at once to 
serve on a jury. The guest then requested that he might him- 
self take the keys and take care of the goods. The innkeeper 
gave him the keys, and went away; and the goods were lost. 
It was held that the innkeeper was not Uable.^" 

§ 150. Innkeeper's responsibility for merchandise. 

The question often arises where a guest brings merchandise 
to an inn and there takes a room for the purpose of exhibition 
and sale of the merchandise. Where the goods are placed, un- 
der these circumstances, in a separate, private room, to which 

16 L. R. A. 188 (1891); Weisenger v. Taylor, 1 Bush (Ky.), 275, 89 Am. Dec. 
626 (1866); Epps v. Hinds, 27 Miss. 657, 61 Am. Dec. 528 (1854); Jalie v. 
Cardinal, 35 Wis. 118 (1874); Shaw v. Ray, 1 Cr. & Dix C. C. (Ire.) 84 (1839). 

17 Norcross v. Norcross, 53 Me. 163 (1865); McDonald v. Edgerton, 5 Barb. 
(N. Y.) 560 (1849); Bradner v. Mullen, 27 N. Y. Misc. 479, 59 N. Y. Supp. 
178 (1899); Read v. Amidon, 41 Vt. 15, 98 Am. Dec. 560 (1868); Shaw v. 
Ray, 1 Cr. & Dix C. C. (Ire.) 84 (1839). 

18 Packard v. Northcraft, 2 Met. (Ky.) 439 (1859); Burrows v. Trieber, 
21 Md. 320, 83 Am. Dec. 590 (1864); Candy v. Spencer, 3 F. & F. (Eng.) 
306 (1862); Richmond v. Smith, 8 B. & C. 9, 2 M. & Ry. (Eng.) 235 (1828). 

10 Vance v. Throckmorton, 5 Bush (Ky.), 41, 96 Am. Dec. 327 (1869). 
20 Year Book, 11 Hen. 4, 45, pi. 18 (1410). 

[103] 



§ 152.] Innkeepers. [Chap. XIII. 

the guest is authorized to invite the customers, and in which 
he is to show his goods, the landlord is not Uable for the mer- 
chandise so contained in the room.^* 

§ 151. Special arrangement made by the guest. 

One element of these decisions is the fact that a special con- 
tract was made between the innkeeper and the plaintiff, who 
was therefore not received on the terms created by the common 
law. This was the significant fact in an important New York 
case. The plaintiff, by a special arrangement with an innkeeper 
and at special rates, brought his stalhon to the inn on certain 
days in each week. The plaintiff cared for the horse, the inn- 
keeper furnishing the feed. The horse was burned in the barn 
without negligence of the innkeeper, who was held not to be 
liable.22 

§ 152. Goods brought by guest to inn after his own arrival 

The fact that property is brought to the inn by the guest, 
after he becomes such, should, it would seem, have no bearing 
on the question whether the innkeeper has become respon- 

21 Fisher v. Kelsey, 121 U. S. 383, 30 L. ed. 930 (1887, semble); Myers v. 
CottriU, 5 Biss. 465, Fed. Cas. No. 9985 (1873); Burgess v. Clements, 4 M. 
& S. (Eng.) 306 (1815); Farnworth v. Packwood, 1 Holt N. P. 209, 1 Stark. 
249 (Eng. 1816). Where personal goods of the guest were placed in the 
same room (which was used as his private bedroom, /he innkeeper was held 
liable as such for them. Myers v. CottriU, supra. 

22 Mowers v. Fethers, 61 N. Y. 34, 19 Am. Rep. 244 (1874). Reynolds, C.,' 
said: "He is doubtless bound to receive and entertain a strolling pedler, and 
securely guard his pack of trinkets if brought infra hospitium, so long as he 
remains a mere guest. So, also, would he be bound to receive and entertain 
a wayfarer, incumbered with a stallion, but under no obligation as an inn- 
keeper to allow his curtilage to be turned into an asylum for the breeding of 
horses. It is very manifest in this case that the sojourn of the plaintiff Egg- 
ner, with the horse, at the defendant's inn, was not that of an ordinary trav- 
eller. The purpose and object was entirely different, and the defendant, as 
an innkeeper, was under no common-law obligation to receive and entertain 
the plaintiff Eggner and his horse for such a purpose. . . . Under this 
condition of 'facts it appears to me obvious that Eggner did not come for 
entertainment at the defendant's inn as an ordinary wayfarer, but under a 
Bpecial arrangement previously made." 

[104] 



Chap. XIII.] Responsibility fob the Guest's Goods. [§ 153. 

sible for it; whether the property was brought by the guest 
when he came to the inn or later is immaterial.^* 



TOPIC II. 

GOODS outside THE INN. 

8 153. Innkeeper not generally responsible for goods taken by the 
guest outside the inn. 

Where the guest's goods are placed outside the inn by the 
guest or in accordance with his directions, the innkeeper is not 
responsible for the goods. So in an old case where a horse was 
brought to an inn, and the owner requested that it be put out 
to pasture, and this was done, it was held that the horse was 
not brought within the inn, and the innkeeper was not liable.^* 
So an innkeeper is not Uable in his character as such if sheep be 
put to pasture under the direction of the guest and they are 
injured by eating poisonous plants.^^ In a modern case an 
innkeeper provided, on the seashore, bath houses for the use of 
his guests, and goods of a guest were lost from a bath house. It 
was held that whatever might be the liabihty of the innkeeper, 
he was at any rate not liable for the goods so stolen on a dec- 
laration charging him as innkeeper.^^ And so where a guest 
put his horse in the pasture belonging to the innkeeper, and 
himself fed and took care of the horse, it was clear that the 
innkeeper was not Hable for the horse.^^ 

The case is still clearer, where the guest leaves his goods out- 
side the inn, against the direction of the innkeeper. Thus, 
where a clothier brought a cart of wool to the inn, and the inn- 
keeper said if the clothier wished him to take charge of his cart 
he must put it into the yard near the inn, and the clothier did 

23Mateer v. Brown, 1 Cal. 221, 52 Am. Dec. 303 (1850). 

24 Windham v. Mead, 4 Leon. 96 (abt. 1600); Dale v. Gibson, 1 Roll. Abr. 
3, pi. 3 (but see Mosley v. Fosset, *.). 

25 Hawley v. Smith, 25 Wend. (N. Y.) 642 (1841). 

28 Minor v. Staples, 71 Me. 316, 36 Am. Rep. 318 (1880). 
2' Neal V. Wilcox, 4 Jones (N. C), Law 146, 67 Am. Dec. 266 (1856). 

[105] 



§ 154.] Innkeepers. [Chap. XIII. 

not do so, the innkeeper was held not liable.^* So where the 
innkeeper expressly declined to be responsible for certain goods, 
not being needed by the guest for his own use, unless the goods 
were given to the innkeeper himself, the court held that if he 
chose to keep them, the innkeeper was not responsible.^* But 
the important fact in these cases is that the goods were left 
outside the Ltin or outside the innkeeper's control. This is 
shown by a rather common case where it appears that the inn- 
keeper offers to take goods to the guest's room, but the guest 
requests that they may remain in a common hallway, saying 
that they will be safer there. In these cases the innkeeper has 
been held responsible, if he allowed the goods to remain. It 
must be clear, therefore, that if the goods are actually within 
the inn the innkeeper must give explicit directions where they 
are to be placed, if he is to escape responsibihty when the goods 
are not disposed of according to his wish.^" 

§ 154. Goods placed outside the inn by the innkeeper. 

If the innkeeper himself, without the direction of the guest, 
puts property of the guest which has been given to him, in a 
place outside the inn, or even entirely separate from it, the 
iimkeeper is hable for it. So in the old case cited, the court 
held that if the innkeeper, without direction from the guest, 
had put the horse to pasture, the innkeeper would be liable.^' 
And the same thing is true where the goods of the guest are 
placed by the innkeeper or under his direction in any place not 
directly connected with the inn. So where the plaintiff, on a 
fair-day, coming to the defendant's inn with a horse and gig 
ordered the horse to be put into the stable, but gave no special 
direction as to the gig, and the horse was put into the stable, 
and the gig placed with other carriages in the public highway, 
near the house, where it was the practice of the defendant to 

28 Anon., cited in Brand v. Glasse, F. Moore, 158 (1563). 

29 Brand v. Glasse, F. Moore, 158 (1584). 

30 Richmond v. Smith, 8 B. & C. 9, 2 M. & Ry. 235 (Eng. 1828). 

31 Windham v. Mead, 4 Leon. 96 (abt. 1600); Dale v. Gibson, 1 Roll. Abr. 
3 F. pi. 3; Calye's Case, 8 Co. 63 (1584). 

[106] 



Chap. XIII.] Responsibility for the Guest's Goods. [§ 155. 

put carriages on fair-days, it was held that the innkeeper was 
responsible for the gig, and was liable for its loss.^^ Lord Den- 
man said that the gig was taken while under the protection of 
the innkeeper; while Littledale, J., said that since the place was 
commonly used for the purpose on fair-days it must be taken, 
as against the defendant^ to be part of the inn, or, as Taunton, J., 
put it, it was part of the inn since the defendant by his conduct 
treated it as such. 

So where a sleigh loaded with wheat, belonging to a guest, 
was put into an outhouse appurtenant to an inn, where loads 
of that description were usually received, and the grain was 
stolen during the night, the innkeeper was held liable for the 
loss.^^ And so where the guest's carriage is deposited in an 
open space near the highway which is the place designated by 
the innkeeper, the latter is responsible for goods contained in 
the carriage.^* 

The same principle was involved in the case of Cohen v. 
Manuel.'^ An innkeeper directed his guest to take his horse 
and cart to a livery stable which belonged to the innkeeper, 
but was not connected with the inn. The guest did so, and 
put the horse and cart into the care of the innkeeper's hostler. 
This was held to constitute a dehvery to the innkeeper, and the 
property was infra hospitium. The stable, as Savage, J., said, 
was his own stable, and the place he selected in which to 
keep the goods safely. Putting up at the iim and dehvering 
the goods to the innkeeper was a single transaction, and he 
imdoubtedly received the goods as innkeeper. 

§ 155. Goods placed in customary place outside inn by guest. 

Where, however, the guest himself places his horse or car- 
riage in a shed outside the iim, without notice to the innkeeper, 
even though it was the customary place where the innkeeper 

32 Jones V. Tyler, 1 A. & E. 522, 3 N. & M. 576, 3 L. J. K. B. 166 (Eng. 
1834). 

33 Clute V. Wiggins, 14 Johns. (N. Y.) 175, 7 Am. Dec. 448 (1817). 

34 Piper V. Manny, 21 Wend. (N. Y.) 282 (1839). 

35 91 Me. 274, 39 Atl. 1030, 40 L. R. A. 491 (1898). 

[107] 



§ 155.] Innkeepers. [Chap. XIII. 

placed horses and carriages of his guests, it was held that the 
innkeeper did not thereby become liable.'* The real reason for 
the distinction would seem to be that in this case the innkeeper 
never consented to assume any liabihty (not knowing that the 
carriage had been placed in the shed), nor had he dispensed 
with the requirement of notice by any custom to become re- 
sponsible without notice. A custom of the innkeeper to place 
goods in such a place is not a custom to accept goods placed 
there by others without notice to himself. "Such a shed is 
obviously not a place of safety, and a person leaving his horses 
therein, without request of any kind of the innkeeper or his 
hostler for their care, cannot hold the innkeeper for loss of the 
property, on an implied contract of bailment, arising out of 
such a state of facts. The law raises no such impKcation. '"'' 
The reason given in Albin v. Presby '* is different ; it appears 
to be, that the owner, knowing the custom to place teams in an 
open yard or shed, assimies the risk of loss arising out of so 
placing them. This reasoning seems opposed to the Maine 
and New York cases cited, and is not to be commended. On 
the facts, however, the case seems to have been rightly decided. 

38 Albin V. Presby, 8 N. H. 408, 29 Am. Dec. 679 (1836); Bradley Livery 
Co. V. Snook, 66 N. J. L. 654, 50 Atl. 358, 55 L. R. A. 208 (1901). 
3' Fort, J., in Bradley Livery Co. v. Snook, supra. 
38 8 N. H. 408, 29 Am. Dec. 679 (1836). 



[108] 



Chap. XIV.] Protection of Guest's Person. 



[ §162. 



SUBTITLE II. 

EXTENT OF RESPONSIBILITY. 

CHAPTER XIV. 

protection and care of the guest's person. 



161. Classification of duties of inn- 

keeper to guest. 

162. Duty to furnish safe prem- 

ises. 

163. Defective premises. 

164. Open elevator well. 

165. Contributory negligence of 

guest falling down elevator, 
well. 

166. Duty to furnish accommoda- 

tions to the guest. 

167. Right to assign room. 

168. Right to control use of room. 



§ 169. Duty to supply food. 

170. Duty to protect guest. 

171. Protection against injury by 

third parties. 

172. Protection against injury by 

servants. 

173. Cases limiting the duty. 

174. The true extent of the duty. 

175. Protection against one who 

has a right to remain in the 
inn. 

176. Duty to protect against fire. 



§ 161. Classification of duties of innkeeper to gnest. 

The duties of the innkeeper to his guests personally may be 
divided into three classes: he must furnish shelter, protection 
and food. He is therefore called upon to provide safe premises, 
to protect the guests against personal harm, and to furnish a 
sufficient quantity of wholesome food. 

8 162. Duty to furnish safe premises. 

The innkeeper is bound to provide reasonably safe premises.* 
This duty the innkeeper cannot escape by delegating it to an- 
other, even though the latter is a proper and generally careful 
person. The innkeeper is responsible if his delegate is negh- 

1 Woodward v. Birch, 4 Bush (Ky.), 510 (1869); Hilton v. Adams, 71 Me. 
19 (1879); Washburn v. Jones, 14 Barb. (N. Y.) 193 (1851); Dickerson v. 
Rogers, 4 Humph. (Tenn.) 179, 40 Am. Dec. 642 (1843). 

[109] 



§ 163.] Innkeepers. [Chap. XIV. 

gent. Thus, where an innkeeper had his elevator inspected in 
the usual way by a proper inspector and the latter negligently 
failed to find a defect, the iankeeper was held liable to a guest 
who was injured by reason of the defect.^ 

§ 163. Defective premises. 

Both in original safety of construction and in maintenance 
the premises must be such as reasonably to secure the safety 
of the guest. So the innkeeper has been held liable for injury 
to the guest by the ceiling falling upon him, owing to its de- 
fective condition ; ^ by the elevator falling with him, after hav- 
ing been neghgently inspected, although the innkeeper himself 
had employed a proper inspector and was not personally neg- 
ligent ; * by the breaking of a defective railing, by reason of 
which the guest fell into an area; ^ and by the guest falling off 
an unguarded stairway.^ 

If, however, the defect is an obvious one, the guest must use 
reasonable care on his own part ; and if he is himself negligent 
he cannot recover compensation for an injury from the inn- 
keeper. So where a guest fell from an unrailed gallery he was 
not allowed to recover compensation where it appeared that 
he was aware of the defect.'' 

Of course, before a guest can recover compensation from the 
innkeeper in such a case it must be shown that the defect com- 
plained of was the cause of the injury. So where a guest was 
burned to death in an inn, and it was shown that there were 
no proper fire escapes on the inn, his representative could not 
recover damages for the death where the death was not shown 
to be in any way due to the lack of fire escapes.* 

2 Stott V. ChurchiU, 15 N. Y. Misc. 80, 36 N. Y. Supp. 476 (1895), affirmed 
without opinion, 157 N. Y. 692, 51 N. E. 1094 (1898). 

3 Sandys v. Florence, 47 L. J. C. P. (Eng.) 598 (1878). 

i Stott V. ChurchUl, 157 N. Y. 692, 51 N. E. 1094 (1898), affirming 15 N. Y. 
Misc. 80, 36 N. Y. Supp. 476 (1895). 

6 Hotel Assoc, v. Walters, 23 Neb. 280, 36 N. W. 561 (1888). 
8 West V. Thomas, 97 Ala. 622, 11 So. 768 (1892). 

7 Ten Broeck v. Wells, Fargo & Co., 47 Fed. 690 (1891); Sneed v. More- 
head, 70 Miss. 690, 13 So. 235 (1893). 

8 Weeks v. McNulty, 101 Tenn. 495, 48 S. W. 809 (1898). 

[110] 



Chap. XIV.] Protection of Guest's Person. [§ 165. 

§ 164. Open elevator well. 

Where an innkeeper leaves the door to an elevator open or 
unlocked so that a guest falls into the well and is injured, the 
innkepeer is in the ordinary case held liable.* 

This duty of the innkeeper does not arise out of his control 
of the elevator, but merely out of his duty to guard the guest 
against harm arising from the construction or operation of the 
premises. The duty would be the same, though the innkeeper 
has no control over the elevator and no right to close the door 
of the elevator well. " Granting that defendant had no control 
of the elevator shaft, or the small hall leading to it, it was his 
duty to have maintained a door or barrier at the entrance from 
the main hall to the small hall which led to the dangerous aper- 
ture. To leave the approach from his hall to another which 
conducted his guest to a pitfall, open and imguarded, was such 
negligence as would make him Uable, in our opinion, and that 
he had no control of the small hall, and the shaft itself, would 
not relieve him. When the conditions are permitted to be 
such, in a hotel, that from slight want of attention, or from the 
confusion or misapprehension that naturally attends a stranger 
in feeUng his way through a dark hall, one may be led up, with- 
out meeting door or barrier, to a well-hole into which a plunge 
is taken, it may be to death, the hotel keeper cannot escape 
the charge of negligence on the plea that he had no right to 
close up the well-hole itself. He might bar or close up the en- 
trance to a small hall, and thus prevent guests of his house, 
who were unacquainted with the location and the hmits of his 
possession and control in the halls, from entering the passage 
to tread which in darkness was dangerous." ^^ 

§ 165. Contributory negligence of guest falling down elevator well. 
But, as in the ordinary case, the guest cannot recover, in 
spite of the innkeeper's neglect of duty, if he was himself neg- 
ligent. Thus, where the guest was familiar with the elevator, 

»Hayward v. MerriU, 94 lU. 349, 34 Am. Rep. 229 (1880); Bremer v. 
PleisB, 121 Wis. 61, 98 N. W. 945 (1904). 

i»Moran, J., in Mauzy v. Kinzel, 19 111. App. 571 (1886). 

[Ill] 



§ 165.] Innkeepers. [Chap. XIV. 

found the door partly open, pushed it further open, and fell 
in, his recovery was barred by contributory neghgence." 

"Where the door is fully open and the shaft is dark, the ques- 
tion whether a passenger is guilty of contributory negUgence 
in stepping in without examLnation is one for the jury. We 
have found no case, however, holding that where the door to 
the shaft is only halfway open, so that the passenger entering is 
obhged to, and does, open it the rest of the way in order to 
enter, the question of contributory negligence is a matter of 
doubt; nor do we see how it could be so held. It seems to us 
entirely clear that the fact that the door is only part way 
open is a definite and imequivocal advertisement that some- 
thing is wrong — certainly not an assurance that the car is there. 
The use of passenger elevators is now so universal that all 
know that when , an elevator car is brought to a standstill, 
ready for passengers to enter or leave, the door is always thrown 
wide open. A door only halfway open is a plain suggestion of 
some unusual condition — a hint to investigate, not an invita- 
tion to enter, or an assurance of safety. " *^ 

The questioii not infrequently arises whether the guest is 
neghgent when he goes at night into a part of the inn which is 
not open to guests and there falls into an open elevator well. 
This was decided in the affirmative by a majority of the Eng- 
Ush House of Lords in the case of Walker v. Midland Railway.*' 
The plaintiff's husband, a guest in a hotel, started at night to 
go to the water-closet; went by mistake into a service room 
which was not open to guests, and there fell down an open ele- 
vator shaft and was killed. There was no light in the service 
room. It was held that the innkeeper was not Uable, and a 
verdict in favor of the plaintiff was set aside. The opinion of 
Lord Selbome is worth quoting at length, as it illustrates the 
way in which such a question may be dealt with by a good 
judge. 

11 Bremer v. Pleiss, 121 Wis. 61, 98 N. "W. 945 (1904). 

12 Winslow, J., in Bremer v. Pleiss, supra. 

13 55 L. T. 489, 51 J. P. 116 (1886). 

[112] 



Chap. XIV.] Protection of Guest's Person. [§ 165. 

" Unless there was evidence fit for the consideration of a jury 
that any guest in the position of the deceased would, in the 
darkness of night, have reasonable ground for believing this 
service room to be a water-closet, and for acting as he did, 
there is nothing else in the case which (as it seems to me) could 
make the respondents' omission to provide against dangers 
within that service room wrongful towards the plaintiff's hus- 
band or generally towards the guests; for there was no other 
ground on which the presence of any guest there could reason- 
ably be explained or excused. Were, then, those circumstances 
connected with this room, which alone can be supposed to have 
suggested to the mind of the deceased that it might be a water- 
closet, enough to furnish reasonable ground for a belief, on 
which a guest in the situation of the deceased might reasonably 
act in the way he did, that this service room was a water- 
closet? This seems to me to be the question, putting it most 
favorably for the appellant. Those circiraistances were the 
glass in the door and the audible drip of water within. I do 
not add the absence of Hght; for to me it would not seem rea- 
sonable to expect that water-closets intended for use at night 
in such an hotel would be left imlighted. But the glass in the 
door no more denoted a water-closet (there being no hght 
within) than it did any other kind of room, passage, or place, 
which might receive borrowed light from the corridor, such, 
for instance, as a service room, a housemaid's closet, or the en- 
trance to a passage or back staircase. And the drip of water 
would be left behind by anyone advancing, as the plaintiff's 
husband did, into the room, and could not be supposed by any 
such person to denote the situation of the object of his search. 
At the most, these circumstances might explain his first act, in 
opening the door to see what (if anything) might be discernible 
within; but when he had done this, and found the room quite 
dark, I cannot regard either of them alone, or both together, 
as furnishing reasonable ground for his going forward in the 
dark to the place where he fell, instead of proceeding a little 
further along the corridor, where proper water-closets, with 
8 [ 113 ] 



§ 165.] Innkeepers. [Chap. XIV. 

proper lights, might have been fotind. Would the respondents 
have been wrongdoers towards him (all other circumstances 
being the same) if he had come to a steep staircase instead of 
the unguarded well of a lift, and had fallen down it? I think 
not; and, if not, I do not think they can be liable because it 
was the well of a hf t with iron doors, which had been, purposely 
or inadvertently, left tinclosed. The magnitude of a particular 
danger, to anyone who may happen to come in the way of it 
unawares, may doubtless enhance the responsibility of the per- 
son to whom it is imputable, for the neglect of any duty which 
he owes to persons whom he leaves exposed to it; but I do not 
see how it can create such a duty, when the person who suffers 
would not, in the proper and ordinary course of things, or with- 
out his own unauthorized and unreasonable act, have been 
within the reach of the danger at all. . . . In considering 
whether there was any evidence of neglect of duty by the re- 
spondents, it would not, in my opinion, be right to leave out of 
sight the fact that they did not so conduct their hotel as to 
drive their guests to grope about in dark places, or to explore 
unknown rooms in order to find water-closets. These conven- 
iences were provided on that corridor, in positions easily access- 
ible, and easily discoverable by any guests in the circumstances 
of the appellant's husband, who might endeavor, with reason- 
able care and patience, to observe or to find them; and they 
were kept properly Ughted at night. " 

It may well be doubted whether the court were not usurping 
the function of a jury in determining on the evidence that the 
plaintiff was negligent. There were circumstances in the case 
which, according to the doctrine of the American courts, would 
surely have justified a submission of the issue to the jury ; and 
in a similar case in Illinois a guest who wandered into a hallway 
apparently not open to guests while searching for a water-closet 
in the night, and was injured by falling down an elevator shaft 
was allowed to recover." 

" Mauzy v. Kinzel, 19 111. App. 571 (1886). 
[114] 



Chap. XIV.] Protection of Guest's Person. [§ 167. 

§ 166. Duty to furnish accommodations to the guest. 

The duty of the innkeeper to furnish accommodation to the 
guest is simply to supply him with such entertainment as he 
needs. The iim, though a public house, does not become in 
any sense the house of the guests; the innkeeper continues to 
be the housekeeper, and the management of the premises re- 
mains absolutely and at all times in his hands, subject only to 
the right of the guests to receive reasonable entertainment. 

§ 167. Right to assign room. 

It follows that the innkeeper, in the course of his manage- 
ment, has the absolute right to assign the guest to any proper 
chamber; *^ and having assigned a guest to one room, he may 
at will change the room, putting him into a different room, pro- 
vided the latter furnishes reasonable accommodation.^^ The 
assignment of a guest to a room is no sense a lease ; it is a mere 
revocable license." 

The innkeeper must, of course, provide a reasonable num- 
ber of common rooms; but he may refuse to furnish hght and 
heat for the guest to occupy his chamber as a reading or writing 
room, or a common room as a sleeping apartment. So where 
a guest refused to sleep in the chamber assigned to him, and 
requested that candles should be furnished him that he might 
sit up all night in a chamber, the innkeeper was justified in re- 
fusing, at least where he offered to allow the guest to sit up and 
have Ught in the regular reading room. Lord Abinger, C. B., 
said: "A landlord is not boimd to provide a traveller with a 
particular room, nor to permit him to occupy a bedchamber as 
a sitting room if he offers him another room fit and proper for 
the purpose. He is to provide him with a room affording rea- 
ls FeU V. Knight, 8 M. & W. 269, 10 L. J. Ex. 277, 5 Jur. 554 (Eng. 1841); 
Scrivenor v. Reed, 6 W. R. (Eng.) 603 (1857); Doyle v. Walker, 26 Up. Can. 
Q. B. 502 (1867). 

18 Doyle V. WaUcer, 26 Up. Can. Q. B. 502 (1867). 

"Rodgers v. People, 86 N. Y. 360 (1881); Lane v. Dixon, 3 C. B. 776, 
784 (Eng. 1847). "We think the contention on the plaintiff's part involves 
a confusion between the character and position of an innkeeper and a lodging- 
house keeper." Draper, C. J., in Doyle v. Walker, supra. 

[115] 



§ 167.] Innkeepers. [Chap. XIV. 

sonable accommodation, but not any room which the caprice 
of his guest may lead him to select, for with that he is not bound 
to comply. " ** 

As the innkeeper may assign the guest to any chamber he 
pleases, so he may serve him with food in any room he pleases, 
provided it is a decent and proper room ; and the guest cannot 
complain if the innkeeper refuses to serve him in the common 
dining room. This question was involved in the interesting 
case of Regina v. Sprague.^^ The suit was an indictment for 
refusing to supply Lady Harberton with food. Lady Harber- 
ton was cycling, clad in the "rational costume," so called, 
and she stopped for luncheon at the defendant's inn. The 
defendant refused to serve her in the coffee room unless she 
put a skirt over the rational costume, but offered to serve her 
in a private room behind the bar. On looking into the room 
Lady Harberton foimd it was occupied by men, some of whom 
were smoking, and refused to enter; and thereupon the prose- 
cution was instituted, at the Surrey Quarter Sessions. The 
defendant urged that no person had a right to choose a par- 
ticular room; to which Mr. Cave, the Chairman, replied, 
"Suppose a landlord said he would only supply victuals in 
the coal cellar?" The defendant said that was an extreme 
case; but would an indictment lie against a landlord because 
a fastidious lady disliked the smell of smoke? The case ought 
not to be left to the jury. 

The Chairman, however, left the question to the jury. The 
question was, he said, "whether there was a refusal to supply 
food in a decent and proper place. The innkeeper could select 
the room provided it was a decent and proper place. Nor, 
in his opinion, was a guest entitled to have a room exactly 
to his or her taste. The jury must judge by the requirement 
of ordinary and reasonable persons." The Chairman then 
asked the jury to consider whether the bar parlor was a decent 
and proper room for a guest to have limch in. The jury 

18 FeU V. Knight, 8 M. & W. 269, 10 L. J. Ex. 277, 5 Jur. 554 (Eng. 1841). 
"Regina v. Sprague, 63 J. P. 233 (Eng. 1899). 
[116] 



Chap. XIV.] Protection of Guest's Person. [§ 169. 

brought in a verdict of not guilty. It may be doubted whether 
an American jury would have been so ungaUant; but the 
action of the Chairman was unquestionably correct. 

§ 168. Bight to control use of room. 

At the same time the innkeeper cannot go further than de- 
termine the kind of accommodation to be furnished to the 
guest; he cannot demand that the guest make any particular 
use of the accommodation. He may place such reasonable 
food as he chooses before the guest, but he cannot complain 
if the guest refuses to eat it; nor can he object if the guest re- 
fuses to occupy his bed, but chooses to sit up all night. So in 
the course of the argument in Fell v. Knight,^" Alderson, B., 
said: "A traveller is not bound to go to bed. He may have 
business to attend to which would render it necessary for him 
to sit up all night. An innkeeper cannot be justified in turning 
his guest out because he refuses to sleep. " 

§ 169. Duty to supply food. 

The innkeeper must provide as much food as he can reason- 
ably foresee to be necessary. He must provide and keep on 
hand food enough for such guests as may be reasonably ex- 
pected.^^ He is not an insurer of the quaUty of his food, but 
he would be hable for knowingly or negligently furnishing bad 
and deleterious food.^^ 

As an innkeeper does not lease his rooms, so he does not sell 
the food he supplies to the guest. It is his duty to supply such 
food as the guest needs, and the corresponding right of the guest 
is to consume the food he needs and to take no more. Having 
finished his meal, he has no right to take food from the table, 
even the uneaten portion of the food supplied to him ; nor can 

ao 8 M. & W. 269, 10 L. J. Ex. 277, 5 Jur. 554 (Eng. 1841). 

21 Atwater v. Sawyer, 76 Me. 539, 49 Am. Rep. 634 (1884), in -which case 
it appeared that this common-law obligation had been enacted in statutes. 

22 Sheffer v. WiUoughby, 163 111. 518, 45 N. E. 253 (1896) (the case of a 
restaurant). In Stringfellow v. Grunewald, 109 La. 187, 33 So. 190 (1902), 
where this was the complaint, the charge was not made out on the facts. 

[117] 



§ 171.] Innkeepers. [Chap. XIV. 

he claim a certain portion of food as his own, to be handed over 
to another in case he chooses not to consume it himself. The 
title to food never passes as a result of an ordinary transaction 
of supplying food to a guest; or, as it was quaintly put in an 
old case, "he does not sell but utters his provision." ^^ For 
this reason an innkeeper is not a trader, and cannot become a 
bankrupt or insolvent under an act which applies to traders 
only.24 

§ 170. Duty to protect guest. 

It is the duty of an innkeeper to take reasonable care of the 
persons of his guests, so that they may not be injured while in 
the inn by want of such care on his part. So in the case of 
Sandys v. Florence, just cited, where a part of the ceiling 
fell on a guest in an inn and injured him, the innkeeper was 
held liable only if he was negligent.^.^ He is not, however, 
an insurer of the guest's safety; his responsibility is limited 
to exercising reasonable care.^* 

§ 171- Protection against injury by third parties. 

The innkeeper, while not an insurer of a guest against per- 
sonal injury, must protect him against injury from third per- 
sons so far as it is within his power to do so. Thus, where, in 
the presence of the innkeeper, and without being prevented by 
him, one guest pinned a piece of paper on the coat of another 
guest and set it on fire, the innkeeper was held responsible to 
the injured guest for the injury thus caused.^^ And so an inn- 
keeper who, without warning, allows a guest to come to an inn 

23 Wright, Serg., in Parker v. Flint, 12 Mod. 254 (1701). 

21 Parker v. Flint, 12 Mod. 254 (1701); Harman v. Clarkson, 22 Up. Can. 
C. P. 291 (1871). 

25 Stott V. Churchill, 15 N. Y. Misc. 80, 36 N. Y. Supp. 476 (1895); Sandys 
V. Florence, 47 L. J. C. P. (Eng.) 598 (1878). 

28 Weeks v. MeNulty, 101 Tenn. 495, 48 S. W. 809 (1898); Clancy v. 
Barker, 131 Fed. 161 (U. S. C. C. A. Neb. 1904). 

27 Rommel v. Schambacher, 120 Pa. 579, 11 Atl. 779, 6 Am. St. Rep. 732 
(1887). And see to the same effect Curran v. Olson, 88 Minn. 307, 92 N. W. 
1124 (1903). 

[118] 



Chap. XIV.] Protection of Gukst's Person. [§ 172. 

in which he knows there is a contagious disease is responsible 
to the guest if he contracts the disease.^* 

§ 172. Protection against injury by servants. 

As the innkeeper must protect a guest against third persons, 
a fortiori he must protect him against injuries from his servants. 
And since the servants are provided, among other things, for 
the purpose of protecting guests, every injury inflicted upon the 
guest by the servant, either intentionally or negUgently, is a 
breach of his duty of protection, and renders the irmkeeper li- 
able to the guest.^* The innkeeper's duty, the breach of which 
by his servant causes the injury, is not the negative duty not 
to assault the guest, but the affirmative duty to protect him 
from assault. The servant, in assaulting the guest, is com- 
mitting the tort for himself; but he is breaking the obligation 
of protection which rests on the innkeeper, and which the serv- 
ant has himself been employed to carry out. This is recognized 
in the well-considered cases as the true ground of UabiHty.'" 

"If, then, the defendants were under a contractual obliga- 
tion that the plaintiff and his family should be treated with due 
consideration for their comfort and safety, the act of the serv- 
ant, resulting in the injuries complained of, obviously amounts 
to a breach of contract. That the wrongful act was committed 
by a servant is wholly immaterial. The rule which requires 
that a guest at a hotel be treated with due consideration for 
his comfort and safety would be of Httle value if Hmited to the 
proprietor himself. As a rule, he does not come in contact with 

28 Gilbert v. Hoffman, 66 la. 205, 55 Am. Rep. 263 n (1885); Levy v. 
Corey, 1 City Ct. Rep. Supp. 57 (1884). 

28 Wade V. Thayer, 40 Cal. 578 (1871); Overstreet v. Moser, 88 Mo. App. 
72 (1901); Clancy v. Barker, (Neb.), 98 N. W. 440 (1904); Curran v. 
Olson, 88 Minn. 307, 92 N. W. 1124 (1903). In Block v. .Sherry, 43 N. Y. 
Misc. 342, 87 N. Y. Supp. 160 (1904), even a restaurant keeper, whose lia- 
bility is less than that of an innkeeper, was held liable for the negligent spill- 
ing of water on a customer by a waiter. 

3» Curran v. Olson, 88 Minn. 307, 92 N. W. 1124 (1903); Clancy v. Barker 
(Neb.), 98 N. W. 440 (1904); Rommel v. Schambacher, 120 Pa. 579, 11 Atl. 
779, 6 Am. St. Rep. 732 (1887). 

[119] 



§ 173.] Innkeepers. [Chap. XIV. 

the guests. His undertaking is not that he personally shall 
treat them with due consideration, but that they shall be so 
treated while inmates of the hotel as guests ; and, if they be not 
thus treated, there is a breach of the implied contract, whether 
the lack of such treatment is the result of some act or omission 
of the proprietor himself, or of his servant or servants. 

"Neither do we deem it material whether the servant at the 
time of the injury was actively engaged in the discharge of his 
duty as servant or not. He was a servant of the proprietor, 
and an inmate of the hotel. His duty as to the treatment to 
be accorded the guests of the hotel was a continuing one, and 
rested upon him wherever, within the hotel, he was brought in 
contact with them. To hold otherwise would be to say that 
a guest would have no redress for any manner of indignity re- 
ceived at a hotel, so long as it was inflicted by a servant not 
actively engaged in the discharge of some duty. " ^* 

§ 173' Cases limiting the duty. 

This principle, however, has not been accepted by all courts. 
In the case of Clancy v. Barker in the Circuit Court of Appeals^^ 
it appeared that the plaintiff, a boy about six years old, who 
was a guest at the defendant's inn, entered a room in which 
he heard someone playing a harmonica, actuated, apparently, 
by no other motive than childish curiosity, and found a boy, 
who was employed about the hotel either as a bell boy or 
porter, engaged in playing the instrument. Another boy who 
ran the hotel elevator was also in the room. Both of these 
employees of the hotel seem to have been off duty at the time, 
and engaged in amusing themselves in a room that was not 
occupied by guests. As the boy Clancy entered the room, 
the boy who was playing the harmonica said to him, evidently 
in jest, "See here, young fellow; if you touch anything, here 
is what you will get," at the same time pointing a pistol at 
him. The pistol was accidentally discharged, the ball strik- 

31 Albert, C, in Clancy v. Barker, supra. 
32 131 Fed. Rep. 161, 66 C. C. A. 469 (1904). 
[120] 



Chap. XIV.] Protection of Guest's Person. [§ 173. 

ing the boy in the head, fracturing "the frontal ethnoid and 
sphenoid bones of the head," and destrojang one of his eyes. 
The ball also passed through the boy's thumb ; but the injury 
did not prove fatal. It was urged that the defendant was 
liable in the case, irrespective of the question whether the 
servant was acting in the course of his service; but a majority 
of the court held otherwise. Circuit Judge Sanborn thus at- 
tempted to distinguish the case of the innkeeper from that 
of the carrier: 

"There is a marked difference in the character of the con- 
tracts of carriage on a railroad or steamboat and of enter- 
tainment at an inn, and a wide difference in the relations of 
the parties to these contracts. In the former, the carrier takes 
and the passenger surrenders to him the control and dominion 
of his person, and the chief, nay, practically the only, occu- 
pation of both parties is the performance of the contract of 
carriage. For the time being all other occupations are sub- 
ordinate to the transportation. The carrier regulates the 
movements of the passenger, assigns him his seat or berth, 
and determines when, how, and where he shall ride, eat, and 
sleep, while the passenger submits to the rules, regulations and 
directions of the carrier, and is transported in the manner the 
latter directs. The contract is that the passenger will surren- 
der the direction and dominion of his person to the servants 
of the carrier, to be transported in the car, seat or berth and 
in the manner in which they direct, and that the latter will 
take charge of and transport the person of the passenger safely. 
The logical and necessary result of this relation of the parties 
is that every servant of the carrier who is employed in assist- 
ing to transport the passenger safely, every conductor, brake- 
man and porter who is employed to assist in the transporta- 
tion, is constantly acting within the scope and course of his 
emplojonent while he is upon the train or boat, because he is 
one of those selected by his master and placed in charge of the 
person of the passenger to safely transport him to his destina- 
tion. Any negligent or willful act of such a servant which 

[121] 



§ 173.] Innkeepers. [Chap. XIV. 

inflicts injury upon the passenger is necessarily a breach of 
the master's contract of safe carriage, and for it the latter must 
respond. But the contract of an innkeeper with his guest, 
and their relations to each other, are not of this character. 
The innkeeper does not take, nor does the guest surrender, 
the control or dominion of the latter's person. The perform- 
ance of the contract of entertainment is not the chief occupa- 
tion of the parties, but it is subordinate to the ordinary busi- 
ness or pleasure of the guest. The innkeeper assigns a room 
to his guest, but neither he nor his servants direct him when 
or how he shall occupy it; but they leave him free to use or 
to fail to use it, and all the other means of entertainment 
proffered, when and as he chooses, and to retain the uncon- 
trolled dominion of his person and of his movements. The 
agreement is not that the guest shall surrender the control 
of his person and action to the servants of the innkeeper, in 
order that he may be protected from injury and entertained. 
It is that the guest may retain the direction of his own action, 
that he may enjoy the entertainment offered, and that the 
innkeeper will exercise ordinary care to provide for his comfort 
and safety. The servants of the innkeeper are not placed in 
charge of the person of the guest, to direct, guide, and control 
his location and action, nor are they employed to perform any 
contract to insure his safety; but they are engaged in the 
execution of the agreement of the master to exercise ordinary 
care for the comfort and safety of the visitor. The natural 
and logical result of this relation of the parties is that when 
the servants are not engaged in the course or scope of their 
employment, although they may be present in the hotel, they 
are not performing their master's contract, and he is not Uable 
for their neghgent or willful acts." 

In a Cahfornia case, also, it was held that while the inn- 
keeper must employ careful servants, and would be Uable for 
negUgence in employing his servants, and would furthermore 
be liable if he personally stood by and saw his servant injure a 
guest, yet he could not be held liable for an assault by his serv- 
[122] 



Chap. XIV.] Protection op Guest's Person. [§ 174. 

ant on a guest in the absence of personal negligence. The inn- 
keeper's responsibility, the court said, is distinguishable from 
that of the carrier.^^ 



§ 174. The true extent of the duty. 

These must be regarded as ill-considered decisions. The 
obligation of the carrier and of the innkeeper in this respect 
must be placed on the same ground. This is not, as seems to 
have been thought in the cases, a supposed duty to insure the 
safety of the guest; such a duty, it is admitted, does not exist. 
It is rather a duty of the carrier to protect his passenger from 
injury and of an innkeeper to protect his guest from injury to 
the best of his abihty, by the use of reasonable means. The 
innkeeper must take reasonable steps to protect his guests. 
His method of so doing is, among other things, to provide 
servants; and every such servant is at all times under a duty 
to protect the guest from threatened harm while he is within 
the inn (though probably not while outside the inn) in. so far 
as he is able. In all cases where the injury is by the servant 
himself and he could by reasonable care have avoided the 
injury the innkeeper should be held responsible for the failure 
of the servant to perform the delegated duty of protecting 
the guest. 

The arguments advanced in favor of the limited responsi- 
bihty are, it seems, fully met by Circuit Judge Thayer in his 
dissenting opinion in Clancy v. Barker.^^ 

"If a servant of a hotel, when off duty, should meet a guest 
outside of the hotel, and not on the premises, and there assault 
him, it is doubtless true — although the case at bar requires no 
decision on that point — that the innkeeper could not be charged 
with responsibility for the servant's conduct; and it is probably 
true that the innkeeper would not be responsible for an assault 

33 Rahmel v. Lehndorff, 142 Cal. 681, 76 Pac. 659, 65 L. R. A. 88 (1904). 
The court was unable to find decisions on the exact point; overlooking, of 
course, the decisions examined in this and the preceding sections. 

34 131 Fed. Rep. 161, 66 C. C. A. 469 (1904). 

[ 123 ] 



§ 175.] Innkeepers, [Chap. XIV. 

committed on one of his guests within the hotel by a stranger, 
provided he has taken all reasonable precautions to prevent 
such occurrences by excluding disorderly persons from his 
premises. But in my opinion the law casts on the innkeeper 
an obligation to see to it that his guest is not injured, while 
within the hotel, by the wrongful, inconsiderate, or negligent 
acts of those who are his servants. . . . 

" Now, it is true that a hotel is an immovable structure and 
does not run on wheels like a train of cars; but in all other 
respects the relation existing between an innkeeper and his 
guest is like that existing between a carrier and passenger, 
and this fact has always been recognized, as shown by the 
cases above cited. An innkeeper, like a carrier, is engaged 
in a quasi-pubUc service. When he embarks in the business 
of keeping a hotel, he is bound to provide entertainment for 
all travellers who seek a place of rest and refreshment, provided 
they come to him in a fit condition to be entertained as guests, 
and are able to pay the customary charges. . . . The inn- 
keeper, like the carrier, has the exclusive right to select all of 
the persons who are to aid him in the discharge of his quasi- 
public functions. I have been imable, therefore, to discover 
any sufficient reason why he should not be held responsible 
to his guests for the consequences of any willful and wrongful 
acts of his servants, committed within the hotel, to the same 
extent that the carrier is responsible to his passengers for like 
wrongful acts of its servants; and within the authorities above 
cited a carrier would be clearly responsible to one of its passen- 
gers for an injury inflicted by one of its employees under such 
circumstances as those disclosed in the present case." 

§ 175- Protection ag^ainst one who has a right to remain in the inn. 

Where, however, the innkeeper is so situated that he is un- 
able to exclude a certain person from the inn or to control that 
person's acts, he is not liable for injury done by such person, 
in the absence of negligence. Thus, where a married woman 
kept an inn, and her husband, who lived in the inn, injured a 
[124] 



Chap. XIV.] Protection of Guest's Person. [§ 176. 

guest, the innkeeper was held not to be liable in the absence 
of negligence.^^ The court pointed out that the wife could 
not control, direct or discharge her husband, who had a right 
of homestead in the premises; and even though he acted as 
her servant about the inn, she could not be made hable for 
his act. 

§ 176. Duty to protect against fire. 

The innkeeper is bound to protect his guest against injury 
by fire through his negligence, but is not an insurer against 
injury by fire ; ^^ and it has been held that he is bound to warn 
his guests when a fire breaks out on the premises," but this 
must surely depend upon the circumstances. It seems clear 
that he should provide proper fire escapes, and indeed the law 
usually requires it; but he is not responsible for injury to the 
guest by fire, even if proper fire escapes were not provided, 
unless the injury was caused by the lack of fire escapes.'* 

36 Curtis V. Dinneen, 4 Dak. 245, 30 N. W. 148 (1886). 

38 Weeks v. McNulty, 101 Tenn. 495, 48 S. W. 809 (1898). 

37 Hare v. Henderson, 43 Up. Can. Q. B. 571 (1878). 

38 Weeks v. McNulty, 101 Tenn. 495, 48 S. W. 809 (1898). 



[125] 



§ 181.] 



Innkebpees. 



[Chap. XV. 



CHAPTEE XV. 

RESPONSIBILITY OF THE INNKEEPER FOR GOODS OF THE 

GUEST. 



181. The innkeeper as a protector 

against marauders. 

182. Innkeeper's responsibility not 

a case of bailment. 

183. History of innkeeper's respon- 

sibility in England 

184. In the United States. 

185. Jurisdictions imposing the in- 

surance liability. 



§ 186. Jurisdiction imposing liability 
ef innkeeper for negligence 
only. 

187. Jurisdictions imposing liabil- 

ity for negligence or breach 
of undertaking. 

188. Loss by theft. 

189. Loss by accidental fire. 

190. Presumption of negligence. 

191. For what goods the innkeeper 

is responsible. 



§ 181. The innkeeper as a protector against marauders. 

The liabUity of the innkeeper for the goods of the guest has 
been enforced from very early times; and its nature can best 
be learned from a consideration of the original function of the 
innkeeper. As has already been seen, the inn was estabUshed 
for the entertainment of travellers on their journey; and par- 
ticularly to protect them against the bands of marauders and 
outlaws that infested the roads at night. The most important 
fimctionof the innkeeper, therefore, after the furnishing of food 
and drink, was the protection which he offered to the weary 
traveller against nocturnal robbers. If a traveller were robbed 
at an inn, it was necessarily from defect of care of the inn- 
keeper, since he undertook to protect against such a misfortune. 

It was therefore decided as early as the year 1368 that the 
innkeeper is responsible for the goods of his guest stolen from 
the inn. In the earhest case ' the loss was alleged to be "for 

1 Y. B. 42 Ed. 3, 11, pi. 13 (1367). 

[126] 



Chap. XV.] Responsibility for Goods of Guest. [§ 182. 

defect of guard of the innkeeper and his servants. " This case 
was followed in the same year by another decision of Justice 
Knivet after consultation with all the Justices and Serjeants 
at Law: "and the reason of the judgment was that he became 
answerable, for himself and his servants, for the chambers and 
stables. " ^ 

As was well and forcibly said by' Judge Cochrane in Crapo v. 
Rockwell : ^ " This rigorous rule had its origin in the feudal con- 
ditions which were the outgrowth of the Middle Ages. In those 
days there was Uttle safety outside of castles and fortified towns 
for the wayfaring traveller, who, exposed on his journey to the 
depredations of bandits and brigands, had Uttle protection 
when he sought at night temporary refuge at the wayside inns, 
estabUshed and conducted for his entertainment and conven- 
ience. Exposed as he was to robbery and violence, he was 
compelled to repose confidence, when stopping on his pilgrim- 
ages over night, in landlords who were not exempt from temp- 
tation; and hence there grew up the salutary principle that a 
host owed to his guest the duty, not only of hospitality, but 
also of protection. With the march of civilization and the 
progress of commercial development, the conditions in which 
the common-law liability of the innkeeper to his guest origi- 
nated have passed away; but other conditions exist, which 
render it wise and expedient that the modem hotel keeper 
should respond for the loss of his guest's property while he is 
extending to the latter for compensation his hospitaUty, and 
there has consequently been no relaxation in the rule of his 
common-law Uability, except as such UabUity has been modified 
by statute." 

§ 182. Innkeeper's responsibility not a case of bailment. 

This principle has often been thought to depend upon the 
law of bailment ; and indeed the responsibility of the innkeeper 
is treated as one kind of bailment-obUgation in the treatises on 

2 Y. B. 42 Lib. Assis. 260, pi. 17 (1367). 
394 N. Y. Supp. 1122 (1905). 

[127] 



§ 182.] Innkeepers. [Chap. XV. 

the law of baihnents ; being treated, along with that of the com- 
mon carrier, as an example of bailments where the responsibil- 
ity is exceptionally severe.^ 

In the earlier cases the innkeeper seems not to have been 
thought of as a bailee. In the leading case of Coggs v. Bernard,^ 
in which the law of bailments was elaborately considered, the 
innkeeper was not mentioned, either in connection with the 
common carrier or otherwise, as an example of a bailee; and 
in the great case of Lane v. Cotton,* while Lord Holt mentioned 
the innkeeper as in a public employment, it was not suggested 
that he is a bailee. Sir William Jones was probably the first 
to speak of an innkeeper as a bailee,^ though he would exempt 
the iankeeper from liabiUty if he used ordinary care. Judge 
Story * follows Jones in placing innkeepers among the bailees. 

If Sir William Jones was really the first authority who dis- 
tinctly included innkeepers among bailees, the fact is signifi- 
cant; for he, as is well known, was a distinguished student of 
Roman law, and introduced the principles of the civil law, so 
far at least as analysis and nomenclature are concerned, into 
the EngHsh law of bailment. In placing innkeepers among 
bailees he was doubtless influenced by a supposed rule of the 
Roman law, expressed in one of the classical texts of the Digest : 
to wit, the section "Nautce caupones stabularii," ^ which was 
believed to be the foundation of the EngUsh law of bailment. 
The literal text itself shows that it cannot be the basis of the 
English law either of carriers or of innkeepers; but the asso- 

* "Exceptional rules and exceptional responsibility confront us, when we 
come to regard innkeepers and common carriers; not that they are more or 
less than bailees, as to the method of performance, but because public policy 
sees fit to clothe those who regularly pursue these vocations with a bailment 
responsibility confided to them, unusually great, and in fact approximating 
insurance." Schouler, Bailments, 14. 

5 2Ld. Raym. 909 (1703). 

« 12 Mod. 472 (1701). 

' Jones, Bailments (1781), 95. 

8 Bailments (1832), §4. 

•Dig. 4, 9, 1. "Nautffl caupones stabularii, quod cuiusque ealvum fore 
reoeperint, nisi restituant, in eos judicium dabo." 
[128] 



Chap. XV.] Responsibility for Goods of Guest. [§ 183. 

elation of persons supposed to correspond to innkeepers with 
persons supposed to represent the whole class of carriers {Nautne) 
led to a belief that the responsibiUty of the innkeeper and that 
of the carrier were similar. 

It is obvious, however, that the responsibility of the inn- 
keeper is not that of a bailee of any sort; for the crucial test 
of bailment, deUvery of possession to the bailee, is lacking. 
The innkeeper's responsibiUty does not depend in any degree 
upon delivery to him of the goods for which he is held Uable.^" 
In the earliest case in which he was held answerable for the 
goods stolen he attempted to avoid liabihty by pleading that 
the guest had not dehvered the goods to him, but had put them 
in the chamber; but judgment was given for the guest upon 
this plea.^^ The responsibiUty must therefore be rested upon 
the pubUc undertaking of the innkeeper, rather than upon his 
position as bailee. 

§ 183. History of innkeeper's responsibility in England. 

The English law until within a century seems not to have 
lost sight of the origin and true ground of UabUity of the hm- 
keeper. In the leading case on the subject, Calye's case,^^ it 
was resolved that "the umholder shaU not be charged, unless 
there be a default in him or his servants, in the weU and safe 
keeping and custody of their guest's goods and chattels within 
his common inn; for the innkeeper is bound in law to keep 
them safe without any stealing or purloining. " No trace can 
be foimd in the reports or abridgements of any different doc- 
trine until the case of Richmond v. Smith.*^ This was a case 
which turned on the innkeeper's responsibiUty for a package 
carried at the request of the guest into the " commercial room, " 
a common room of the inn; and therefore the question now 
under discussion was not involved in that case. In that case, 

10 Ante, § 148. 

n Y. B. 42 Ed. 3, 11, pi. 13 (1367). 

12 8 Coke 63 (1574). 

13 8 B. & C. 9 (1828). 

9 [ 129 ] 



§ 183.] Innkeepers. [Chap. XV. 

however, for the first time, in a judicial decision, the court lik- 
ened the innkeeper to the common carrier; and Mr. Justice 
Bayley used language which seemed to carry his responsibiUty 
for loss as far as that of the common carrier. "It appears to 
me that an innkeeper's Uabihty very closely resembles that of 
a carrier. He is prima facie hable for any loss not occasioned 
by the act of God or the king's enemies; although he may be 
exonerated where the guest chooses to have his goods under 
his own care. " 

In Dawson v. Chamney,^* Lord Chief Justice Denman again 
laid down the old rule as it was stated in Calye's case, to the 
effect that the carrier is not liable except for negligence ; and he 
rightly explained the language of Bayley, J., just quoted, as 
applying to "another branch of the doctrine, namely, the ex- 
ception from the rule which arises where the guest chooses to 
take the chattels entirely imder his own care." 

Later in Morgan v. Ravey,^^ the court again laid down the 
more extreme rule. Chief Baron Pollock said : 

"It remains to consider whether the direction to the jury was 
correct. We think it was. The objection was that it assumed 
the defendants were hable if there was no negligence in the 
plaintiff, and that therefore the defendants would be Hable, 
though not only not neghgent, but even dihgent. But we 
think that is the law. It is true the expression in the forms 
in "tort" is, that the loss was "propter defectum" of the inn- 
keeper; but we think the cases show that there is a defect in 
the innkeeper, wherever there is a loss not arising from the 
plaintiff's neghgence, the act of God, or the Queen's enemies. " 

The court criticized Dawson v. Chamney as the only case 
opposed to this view. And in the later case of Day v. Bather,^" 
the rule of extreme liabihty is asssumed by the court. It is 
probable, therefore, that in England to-day the rule that the 

" 5 Q. B. 164, D. & M. 348 (Eng. 1843). 
15 6 H. &N. 265 (1861). 

18 2 H. &. C. 14 (1863). Ace. Butler v. Quilter (Eng. 1900), 17 T. L. R. 
159. 

[130] 



Chap. XV.] Responsibility for Goods of Guest. [§ 185. 

innkeeper is liable for all loss, except what is caused by act of 
God or the king's enemies or by negligence of the guest him- 
self, is established. And this is also held in the British 
colonies.^^ 

§ 184. In the United States. 

In this country, as might naturally have been expected con- 
sidering the history of the EngUsh doctrine, there has been 
much confusion as to the true rule for innkeeper's UabiUty for 
loss of goods. Judge Story's authority is in favor of the rule 
laid down in the earher cases. " Innkeepers, " he says,^* "are 
not responsible to the same extent as common carriers;" and 
he adds that the innkeeper may repel the presumption of neg- 
ligence "by showing that there has been no negUgence what- 
soever, or that the loss is attributable to the personal negligence 
of the guest himself, or that it has been occasioned by inevitable 
casualty or by superior force. " The decisions, however, have 
not uniformly followed Judge Story's opinion. AVhile they are 
almost always based on the language of the court in Calye's 
case, they are in hopeless disagreement as to whether or not 
the rule in Calye's case calls for personal default on the part of 
the innkeeper or his servant before the innkeeper can be held 
liable for a loss of the goods of the guest. Some minor differ- 
ences may be found in the language of the decisions, but in 
general the rules laid down may be reduced to three. 

§ 185. Jurisdictions imposing tlie insurance liability. 

In perhaps a majority of the jurisdictions the court has 
clearly imposed upon the innkeeper the habiUty analagous to 
that of the common carrier, adopting the language of Chan- 
cellor Kent.^* The rule as commonly stated in these jurisdic- 
tions is that the innkeeper is hable for the goods of the guest 
lost in the inn, unless the loss has been by act of God or of a 

17 Nott V. Maclurgan, 20 W. N. (N. S. W.) 135 (1903); MiUer v. Federal 
Coffee Palace, 15 Victorian Law R. 30 (1889). 

18 Bailments, § 472. 
18 2 Kent Conn. 594. 

[131] 



§ 185.] Innkeepers. [Chap. XV. 

public enemy or by fault of the owner.^" The extent and rea- 
son of this doctrine are well expressed by Mr. Justice Wilde in 
Mason v. Thompson : ^^ "Nothing is better settled than the gen- 
eral principle, that innkeepers are chargeable for the goods of 
their guests lost or stolen from their inns. This liability is im- 
posed upon them for considerations of public policy, for the 
security of travellers, and to protect them not only against the 
negligence, but also against the dishonest practices of the inn- 
keeper or his servants. And from long experience it has been 
found to be a salutary principle of pubUc policy. It may un- 
doubtedly, in some cases, subject the innkeeper to losses, with- 
out any negligence or fault on his part. This may seem hard 
and unjust, but hard cases are not always to be avoided, and 
a wholesome rigor is sometimes necessary, to insure public se- 
curity. It is, however, no more hard for an innkeeper than for 
his guest, to sustain a loss, neither party being in fault ; espe- 
cially when the former undertakes a trade with a full knowledge 
of his liabihties, for he may so regulate his charges as to indem- 
nify himself. Innkeepers, as well as common carriers, are re- 
garded 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." 

Under this rule the innkeeper is excused if the loss happens 
by act of God or the kiag's enemies ; but even if the goods are 

20 Mateer v. Brown, 1 Cal. 221, 52 Am. Dec. 303 (1850); Russell v. Fagan, 
7 Houst. 389, 8 Atl. 258 (Del. 1886); Shaw v. Berry, 31 Me. 478, 52 Am. Dec. 
628 (1850); Norcross v. Norcross, 53 Me. 163 (1865); Mason v. Thompson, 
9 Pick. (Mass.) 280, 20 Am. Deo. 471 (1830); Dunbier v. Day, 12 Neb. 596, 
12 N. W. 109, 41 Am. Rep. 772 (1882); Sibley v. Aldrich, 33 N. H. 553, 66 
Am. Dec. 745 (1856); Hulett v. Swift, 33 N. Y. 571, 88 Am. Dec. 405 (1865), 
affirming S. C, 42 Barb. 230 (1864); Gile v. Libby, 36 Barb. 70 (N. Y. 1861); 
Classon v. Leopold, 2 Sweeny (N. Y.), 705 (1870); Lucia v. Omel, 53 N. Y. 
App. Div. 641, 66 N. Y. Supp. 1136 (1900); WiUard v. Reinhardt, 2 E. D. 
Smith (N. Y.), 148 (1853); Gast v. Gooding, 1 Ohio Dec. 315 (1849); Cun- 
ningham V. Bucky, 42 W. Va. 671, 26 S. E. 442, 35 L. R. A. 850 (1896); 
Jalie V. Cardinal, 35 Wis. 118 (1874). 

219 Pick. 283 (1830). 
[132] 



Chap. XV.] Responsibility foi? Goods of Guest. [§ 186. 

injured by act of God (a sudden and unusual storm) the 
innkeeper is liable if he negligently fail to protect them 
against the storm.^^ 

§ 186. Jurisdiction imposing liability of innkeepers for negli- 
gence only. 

In several jurisdictions a much less stringent rule is laid 
down, the innkeeper being held liable for loss of goods in the 
inn only if he is negligent personally, or by his servants.^^ " It 
is a harsh rule," said Judge Trumbull in Metcalf v. Hess,^ 
"which makes a person in any case responsible for a loss which 
has occurred without any fault of his, and it can only be jus- 
tified upon groimds of pubhc poUcy, and in consideration of 
the numerous opportimities afforded by the nature of his busi- 
ness, for fraudulent combination and clandestine dealing, to 
the injtu"y of the owner of the property. The rule ought not 
to be extended beyond the reason in which it originated." 

The rule which appears to prevail in Kentucky is that as to 
goods of the guest actually deposited with the innkeeper, he 
is imder a bailee's liability substantially Hke that of the com- 
mon carrier, "approximating insurance;" ^^ but as to goods 
kept imder the control of the guest, while he is to take "wa.- 
common care"' to protect them ^^ he is not responsible for their 
loss if it happened by mere accident for which he is in no degree 
responsible.^ 

22 Scheffer v. Corson, 5 S. D. 233, 58 N. W. 555 (1894). 

23 Johnson v. Richardson, 17 111. 302, 63 Am. Dec. 369 (1855); Metcalf v. 
Hess, 14 lU. 129 (1852); Baker v. Dessauer, 49 Ind. 28 (1874); Laird v. 
Eichold, 10 Ind. 212, 71 Am. Dec. 323 (1858) (overruling a dictum to the 
contrary in Thickstun v. Howard, 8 Blackf. [Ind.] 535 [1847] ); Hill v. Owen, 
5 Blackf. (Ind.) 323, 35 Am. Dec. 124 (1840); Woodworth v. Morse, 18 La. 
Ann. 156 (1866) (Civil Law); Towson v. Havre de Grace Bank, 6 Har. & J. 
(Md.) 47, 14 Am. Dec. 254 (1823); Cutler v. Bonney, 30 Mich. 259, 18 Am. 
Rep. 127 (1874); Howth v. Franklin, 20 Tex. 798 (1858); Howe Machine Co. 
v. Pease, 49 Vt. 477 (1877); Merritt v. Claghorn, 23 Vt. 177 (1851). 

2< 14 m. 129 (1852). 

25 Weisenger v. Taylor, 1 Bush (Ky.), 275 (1866). 

28 Packard v. Northcraft, 2 Mete. (Ky.) 439 (1859). 

27 Vance v. Throckmorton, 5 Bush (Ky.), 41, 96 Am. Dec. 327 (1869). 

[133] 



§ 188.] Innkeepers. [Chap. XV. 

§ 187. Jurisdictions imposing liability for negligence or breach of 
undertaking. 

A third form of rule, however, or it may be merely a more 
accurate way of stating the rule just examined, is that the inn- 
keeper is liable either for actual negligence or for breach of his 
imdertaking ; that is, for failure to furnish entertainment, safe 
premises, and protection against theft. For failure in these 
matters which he specially undertakes he' is responsible, with 
or without negligence; but for loss from any other cause he is 
liable only if the loss happened through his own negligence.^* 
In Johnson v. Chadbourn Furnace Co,^^ Judge Collins said: 
"The fact is that in nearly all of the cases supporting the doc- 
trine of absolute UabiUty unexplained thefts or losses of prop- 
erty were involved. No distinction was made between goods 
stolen and goods destroyed by fire for which the landlord was 
in no manner responsible. That there might be a well-defined 
distinction does not seem to have been thought of. . . . 
All losses of property incurred by guests at a public hotel or 
inn by fire are prima facie due to the negligence of the propri- 
etor, but he may discharge or relieve himself from habihty by 
showing that the loss happened by an irresistible force or un- 
avoidable accident, such as a fire originating upon premises 
over which he has no control, without fault or neghgence on 
his part. This doctrine does not infringe upon the common- 
law rule, which makes him responsible for all thefts from within 
his house, or unexplained, whether committed by guests, serv- 
ants or strangers, upon the general principle that an innkeeper- 
guarantees the good behavior of all who may be xmder his roof — 
particularly his servants. " 

§188. Loss by theft. 

Loss of goods by theft on the part of the innkeeper's serv- 
ants would clearly charge the innkeeper under any rule.'° And 

28 Johnson v. Chadbourn Furnace Co., 89 Minn. 310, 94 N. W. 874 (1903); 
■McDaniels v. Robinson, 26 Vt. 316, 62 Am, Deo. 574 (1854). 

29 89 Minn. 310, 94 N. W. 874 (1903). 

30 Walsh V. Porterfield, 87 Pa. 376 (1878); Shultz v. Wall, 134 Pa. 262, 

[134] 



Chap. XV.] Responsibility for Goods of Guest. [§ 190. 

even if the goods are stolen by a stranger without actual neg- 
ligence on the part of the innkeeper (unless they are stolen by 
someone for whom the guest is responsible) there is a breach 
of the innkeeper's obUgation, and he should be held Uable un- 
der any theory of liabiUty.^* 

But in one or two cases, in which the least stringent hability 
is imposed, the innkeeper is exonerated from loss even by 
theft, if neither he nor his servants were negligent.^^ 
§ 189. Loss by accidental fire. 

Loss by accidental fire, where the innkeeper was not negli- 
gent, charges the innkeeper or not according to the rule adopted 
in the jurisdiction concerned. In a State where the stringent 
habiUty is imposed, the innkeeper is liable for a loss by acci- 
dental fire.^^ But in jurisdictions which hold the innkeeper 
hable only for negligence or breach of imdertaking, he is not 
responsible where the goods were lost by accidental fire.'* 

§190. Presumption of negligence. 

Whatever view is adopted, it is agreed that upon loss or in- 
jury to the goods being shown the innkeeper is prima facie 
liable, and the burden is upon him to prove such facts as will 
exonerate him.*^ 

19 Atl. 742, 26 "Wkly. Notes Cas. 51, 19 Am. St. Rep. 686, 8 L. R. A. 97 
(1890). 

31 Lanier v. Ypungblood, 73 Ala. 587 (1883); Sasseen v. Clark, 37 Ga. 242 
(1867); Johnson v. Richardson, 17 III. 302, 63 Am. Dec. 369 (1855); Lusk 
V. Belote, 22 Minn. 468 (1876); Olson v. Grossman, 31 Minn. 222 (1883); 
Dunbier v. Day, 12 Neb. 596, 12 N. W. 109, 41 Am. Rep. 772 (1882); Wies 
V. Hoffman House, 28 N. Y. Misc. 225, 59 N. Y. Supp. 38 (1899); Gast v. 
Gooding, 1 Ohio Dec. 315 (1849); Newson v. Axon, 1 McCord (S. Car.), 509, 
10 Am. Dec. 685 (1821); McDaniels v. Robinson, 26 Vt. 316, 62 Am. Deo. 
574 (1854). 

32 Baker v. Dessauer, 49 Ind. 28 (1874). 

33 Fay V. Pacific Improvement Co., 93 Cal. 253, 26 Pac. 1099, 28 Pac. 943, 
27 Am. St. Rep. 198, 16 L. R. A. 188 (1891); Hulett v. Swift, 33 N. Y. 571, 
88 Am. Dec. 406 (1865); Nott v. Maclurgan, 20 W. N. (N. S. W.) 135 (1903). 

34 Vance v. Throckmorton, 5 Bush (Ky.), 41, 96 Am. Dec. 327 (1869); 
Cutler V. Bonney, 30 Mich. 259, 18 Am. Rep. 127 (1874) ; Merritt v. Claghom, 
23 Vt. 177 (1851). 

35 Sasseen v. Clark, 37 Ga. 242 (1867); Johnson v. Richardson, 17 111. 302, 

[135] 



§ 191.] Innkeepers. [Chap XV. 

§ 191. For what goods the innkeeper is responsible. 

Tlie innkeeper's responsibility is not confined to goods of 
any particular kind, but extends to money '® and to all other 
personal property brought by the guest to the inn.^^ 

In Louisiana, however, being a State governed by the civil 
law, the innkeeper is absolutely responsible only for baggage 
and for money for immediate expenses, unless it is deposited 
with the innkeeper.^* The same doctrine seems to be held also 
in Maryland where the innkeeper is held liable in case of loss 
for baggage only.^* By baggage is meant articles for use on 
the journey or while a guest; it does not include silver knives, 
forks and spoons,*" surgical instruments or pistols.'** 

63 Am. Dec. 369 (1855); Eden v. Drey, 75 III. App. 102 (1898); Hulbert v. 
Hartman, 79 111. App. 289 (1898); Bowell v. De Wald, 2 Ind. App. 303, 28 
N. E. 430 (1891); Burrows v. Trieber, 21 Md. 320, 83 Am. Deo. 590 (1864); 
Baehr v. Downey, 133 Mich. 163, 94 N. W. 750, 10 Detroit Leg. N. 153 (1903); 
Cheesebrough v. Taylor, 12 Abb. Prac. (N. Y.) 227 (1860) ; Murray v. Clarke, 
2 Daly, 102 (N. Y. 1866); Quinton v. Courtney, 1 Hayw. (N. C.) 40 (1794); 
Jordan v. Boone, 5 Rich. Law (S. C.),528 (1875); Howe Machine Co. v. 
Pease, 49 Vt. 477 (1877). 

36 Kent V. Shuckard, 2 B. & Ad. 803, 1 L. J. K. B. 1 (Eng. 1831). 

37 Eden v. Drey, 75 111. App. 102 (1898) ; Berkshire Woolen Co. v. Proctor, 
7 Cush. (Mass.) 417 (1851); Smith v. WUson, 36 Minn. 334, 31 N. W. 176 
(1887); Wilkins v. Earle, 44 N. Y. 172 (1870); Taylor v. Monnot, 1 Abb. 
Prac. (N. Y.) 325 (1854); Van Wyck v. Howard, 12 How. Pr. (N. Y.) 147 
(1856); KeUogg v. Sweeney, 1 Lans. (N. Y.) 397 (1869). This is probably 
also the law in Georgia, Sasseen v. Clark, 37 Ga. 242 (1867), and in Kentucky, 
though there aU goods not personally needed by the guest must be deposited 
with the innkeeper to make him liable at common law. Weisenger v. Tay- 
lor, 1 Bush (Ky.), 275, 89 Am. Dec. 626 (1867). 

38 Simon v. Miller, 7 La. Ann. 360 (1852); Pope v. Hall, 14 La. Ann. 324 
(1869); Profilet v. Hall, 14 La. Ann. 524 (1859). 

39Pettigrew v. Barnum, 11 Md. 434, 69 Am. Dec. 212 (1857); Treiber v. 
Burrows, 27 Md. 130 (1867). 
«Pettigrew v. Barnum, 11 Md. 434, 69 Am. Dec. 212 (1857). 
« GUes V. Pauntleroy, 13 Md. 126 (1859). 



[136] 



Chap. XVI.] Responsibility as a Mere Bailee. [§ 201. 



CHAPTER XVI. 

innkeeper's responsibility as a mere bailee. 



Topic I. Responsibflity for 
goods of boarder, 
i 201. Boarder not entitled to extra- 
ordinary responsibility of 
innkeeper. 

202. Innkeeper is ordinary bailee 

for hire of boarder's goods. 
Topic II. Responsibility for 
goods of one neither guest 
nor boarder. 

203. Goods placed in the inn by one 

not a guest or boarder. 



§ 204. Responsibility of innkeeper 
when he takes the goods as 
a matter of business. 

205. Responsibility of innkeeper as 

gratuitous bailee. 

206. Responsibility for misdeliv- 

ery. 
Topic III. Responsibility for 
goods of guest outside the 
inn. 

207. Goods in bath house attached 

to inn. 



TOPIC I. 



responsibility for goods, of boarder. 

§ 201. Boarder not entitled to extraordinary responsibility of inn- 
keeper. 

A boarder at an inn is not entitled to the exceptional respon- 
sibility of the innkeeper for the goods of his guest. ^ So where 
money is deposited in the office safe and is stolen by a clerk 
who was not negligently employed,^ and where goods are stolen 

1 Jeffords v. Crump, 2 Phila. (Pa.) 500 (1878); Vance v. Throckmorton, 
5 Bush (Ky.),4I, 96 Am. Dec. 327 (1869); Manning v. Wells, 9 Humph. 
(Tenn.) 746, 51 Am. Dec. 688 (1849); Lusk v. Belote, 22 Mion. 468 (1876), 
Kisten v. Hildebrand, 9 B. Mon. (Ky.) 72, 48 Am. Dec. 416 (1848); Barber 
V. Harrison, 6 City HaU Rec. (N. Y.) 89 (1821); Wiser v. Chesley, 53 Mo. 
547 (1873); Neal v. WUcox, 4 Jones (N. C), 146 (1856). 

2 Taylor v. Downey, 104 Mich. 532, 62 N. W. 716, 53 Am. St. Rep. 472. 
29 L. R. A. 92 (1895); Hutchinson v. Donovan, 76 Mo. App. 391 (1898); 
Johnson v. Reynolds, 3 Kan. 257 (1865). 

[137] 



§ 201.] Innkeepers. [Chap. XVI. 

from the chamber of the guest/ the imikeeper is not responsi- 
ble. Thus, in one of the cases just cited, Johnson v. Reynolds, 
the plaintiff, a regular boarder in the defendant's inn, de- 
posited three hundred and thirty-eight dollars in gold, done 
up in a rag marked $338, with the defendant. The defendant 
put it in his safe, from which it was stolen by burglars. The 
defendant was held not to be liable as innkeeper, but only as 
bailee. So in the old case of Barber v. Harrison, cited in the 
last note, it appeared that the defendant kept an irm, in the 
city of New York, and that the plaintiff, an inhabitant of the 
city, was boarding at the inn, paying the regular price for 
boarders, which was less than that for transient guests. The 
plaintiff occupied a double room, into which the defendant was 
accustomed to put lodgers without objection by the defendant. 
"A man of genteel appearance, representing himself as on his 
way from Philadelphia to Albany" was put into the room, 
and during the night carried off the plaintiff's clothes, watch, 
and certain valuable papers. Ordinary care and diligence was 
used by the innkeeper to the plaintiff, and there was no lack 
of care on the part of the servants of the inn. The court held 
that since the plaintiff was merely a boarder the defendant 
was not liable. 

"A passenger or wayfaring man may be an entire stranger. 
He must put up and lodge at the inn to which his day's jomney 
may bring him. It is therefore important that he should be 
protected by the most stringent rules of law, enforcing the lia- 
bility of the innkeeper. In such case, therefore, the law makes 
the innkeeper an insurer of the goods of his guest except as to 
losses occasioned by the act of God or public enemies. But as 
a boarder he does not need such protection, the law does not 
afford it. It is sufficient to give him a remedy when he shall 
prove the innkeeper has been guilty of culpable neghgence. " * 

3 Haff V. Adams (Ari.), 59 Pac. Ill (1899); Chamberlain v. Masterton, 26 
Ala. 371 (1855); Barber v. Harrison, 6 City Hall Rec. (N. Y.) 89 (1821); 
Manning v. Wells, 9 Humph. (Tenn.) 746, 51 Am. Dec. 688 (1849); Meacham 
V. Galloway, 102 Tenn. 415, 52 S. W. 859 (1899). 

4 Manning v. Wells, 9 Humph. (Tenn.) 746, 51 Am. Dec. 688 (1849). 

[138] 



Chap. XVI.] Responsibility as a Mere Bailee. [§ 202. 

Where a portion of a man's family were boarders at a hotel, 
and while he was visiting them as a transient guest some of the 
goods of the guest and of his family were stolen, the innkeeper 
was held liable as such for the guest's goods, but only as 
ordinary bailee for the goods of the other members of the 
family.^ 

§ 202. Innkeeper is ordinary bailee for hire of boarder's goods. 

But the innkeeper in such a case is obviously a bailee for hire ; 
the care of the boarder's goods being as much a part of his im- 
dertaking, for which he is paid, as the care of the goods of a 
guest. He does not receive the boarder as part of his public 
duty and therefore does not tmdertake the extreme responsi- 
bihty undertaken toward the guest's goods; but he receives 
the boarder and his goods to be entertained and cared for in 
the same way that a guest is entertained and cared for, with 
the single exception that he does not offer his house to a boarder 
as a refuge from the perils of the road. For any injury to the 
goods, which an innkeeper carrying on his business in the ordi- 
nary way should have guarded against, the innkeeper ought 
to be hable. This is usually expressed, in the language ordi- 
narily used in connection with bailments, as that duty of "or- 
dinary care " which is due in bailments for the mutual benefit.* 
This is true whether the boarder keeps the goods in his own 
hands or dehvers them to the innkeeper, though those are cir- 
cumstances which without affecting the legal duty of care are 
to be considered in determining whether in fact due care has 
been lacking. 

"The nature of the liabihty is not changed by a deposit in 
the safe, though the degree of care may be increased over that 
required where the boarder retains the custody of valuables; 
but the keeper of the house is still a bailee for mutual benefit, 
and stiU owes the duty of ordinary care, which varies in degree 

sLusk V. Belote, 22 Minn. 468 (1876). 

6 Taylor v. Downey, 104 Mich. 532, 62 N. W. 716, 53 Am. St. Rep. 472, 
29 L. R. A. 92 (1895). 

[139] 



§ 203.] Innkeepers. [Chap. XVI. 

as the responsibility is thrown upon him, or is asstimed by the 
owner. " ^ 



TOPIC II. 

RESPONSIBILITY FOR GOODS OF ONE NEITHER GUEST NOR 

BOARDER. 

§ 203. Goods placed in the inn by one not a guest or boarder. 

Where goods are placed within the inn and in the care of the 
innkeeper by one who is not a guest, the innkeeper is not re- 
sponsible as such, but only as an ordinary bailee.* This is true, 
even though at the time he gave the goods to the innkeeper 
the owner bona fide intended to become a guest. The ques- 
tion was discussed in an EngUsh case.^ The plaintiff arrived 
at the railway station at Carlisle, and was there met by one 
of the porters of the defendant's hotel, which adjoined the 
railway station. He delivered his luggage to the porter, and 
went to the hotel, intending to pass the night there; but after 
reading a telegram which he foimd waiting for him at the office, 
he decided to go on to Manchester the same day. He went to 
the coffee room to dine, but was told that there was no joint 
ready, and proceeded, by the waiter's advice, to the station 
refreshment room, which was under the same management 
as the hotel, and connected with it by a covered passage. On 
his way to the refreshment room he met the porter with his 
luggage, and told him to lock it up tiU he was ready to start 
for Manchester. The luggage was locked up in a room ad- 
joining the refreshment room, but on the plaintiff's arrival 
at the platform, part of it was found to be missing. 

7 Per Curiam, in Taylor v. Downey, 104 Mich. 532, 62 N. W. 716, 53 Am. 
St. Rep. 472, 29 L. R. A. 92 (1895). 

8 Centlivre v. Ryder, 1 Edm. Sel. Cas. (N. Y.) 273 (1846) ; Toub v. Schmidt 
60 Hun (N. Y.), 409, 15 N. Y. Supp. 616 (1891); Tulane Hotel Co. v. Holo- 
han, 112 Tenn. 214, 79 S. W. 113 (1903); Bernard v. Lalond, 8 Leg. News 
(Can.), 215 (1885); Holmes v. Moore, 17 L. C. R. 143 (1867). 

9 Strauss V. County H. &. W. Co., 12 Q. B. D. 27, 53 L. J. Q. B. 25, 49 
L. T. 601, 32 W. R. 170, 48 J. P. 69 (Eng. 1883). 

[140] 



Chap. XVI,] Responsibility as a Mere Bailee. [§ 204. 

The court held that the plaintiff had not become a guest, 
since his only entertainment by the defendant was in the 
refreshment room, a place outside the precincts of the inn; 
and that there was no proof of negligence on the part of the 
defendant. Mr. Justice Mathews said that at the time the 
plaintiff gave his luggage to the porter he had not made up 
his mind to become a guest. This seems not to be consistent 
with the facts as stated; but the case did not turn on the 
point. His bona fide intention to become a guest at the inn 
is clear at the time he gave the luggage to the porter. 

The principle was carried to an extreme in the case where 
a person engaged a room for the storage of his goods, not in- 
tending himself to occupy the room; it was held under these 
circumstances that the owner of the goods was not a guest and 
that the innkeeper's hability was that of an ordinary bailee.^" 

§ 204. Responsibility of innkeeper when he takes the goods as a 
matter of business. 

When the innkeeper takes the goods as a matter of business 
in cormection with his trade of innkeeper, whether he receives 
compensation especially for keeping the goods or keeps them 
without additional compensation, he is Uable not as an insurer 
but as an ordinary bailee. 

So where a commercial traveller brings goods to an inn un- 
der such circumstances that the innkeeper is not responsible 
as such for the goods, he is nevertheless bound to exercise care 
for their protection, and is liable for a loss occasioned by his 
negligence." And so an innkeeper who takes horses to board 
for one not a guest is responsible for them only as a bailee for 
hire.^^ 

On this principle while an innkeeper is liable for the negli- 
gent loss of goods left at the inn by a guest upon his departure," 

loBunn v. Johnson, 77 Mo. App. 596 (1898). 

" Myers v. Cottrill, 5 Biss. 465, Fed. Cas. 9,985 (1873); Scheffer v. Corson, 
5 S. D. 233, 58 N. W. 555 (1894). 

"Ingallsbee v. Wood, 33 N. Y. 577, 88 Am. Dec. 405 (1865), affirming 
S. C, 36 Barb. 452. 

w Murray v. Clarke, 2 Daly (N. Y.), 102 (1866); Coykendall v. Eaton, 55 

[141] 



§ 205.] Innkeepers. [Chap. XVI. 

his responsibility is that of an ordinary bailee for hire, and he 
is therefore hable if the goods are lost or injured through his 
neglect of care. 

In a few cases the liability of the innkeeper in such a case 
is spoken of as that of a gratuitous bailee, who is held only for 
damage caused by his gross negligence.^'* 

§ 205. Responsibility of innkeeper as gratuitous bailee. 

Where goods are left within the inn with consent of the inn- 
keeper by one not a guest, the innkeeper must take due care 
of the goods, and is liable for a loss caused by his negUgence.^^ 

Even as a gratuitous bailee he is liable for loss or injury to 
the goods caused by his gross negligence.^® 

It is usually enough that he takes as much care of the goods 
so deposited as he does of his own ; but, when the keeper of a 
coffee house left money, entrusted to him for the purpose of 
taking up a bill, in his cash box in his taproom, where it was 
lost, together with a much larger sum of his own, there was 
held to be evidence of gross negligence sufficient to go to the 
jury." 

Barb. (N. Y.) 188, 37 How. Pr. 438 (1869); George v. Depierris, 17 N. Y. 
Misc. 400, 39 N. Y. Supp. 1082 (1896). 

"Johnson v. Reynolds, 3 Kan. 257 (1865); Jeffords v. Crump, 12 Phila. 
(Pa.) 500 (1878). In Lawrence v. Howard, 1 Utah, 142 (1874), sometimes 
cited to the same point, the ground of decision was that the goods had been 
left behind by the boarder, without any agreement with the innkeeper, who 
was therefore in fact only a gratuitous bailee. 

15 Wear v. Gleason, 52 Ark. 364, 12 S. W. 756, 20 Am. St. Rep. 186 (1889); 
Stewart v. Head, 70 Ga. 449 (1883); Wiser v. Chesley, 53 Mo. 547 (1873); 
IngaUsbee v. Wood, 33 N. Y. 577, 88 Am. Dec. 405 (1865); Centlivre v. 
Ryder, 1 Edm. Sel. Gas. (N. Y.) 273 (1846); Toub v. Schmidt, 60 Hun 
(N. Y.),409, 15 N. Y. Supp. 616 (1891); Arcade Hotel Co. v. Wiatt, 44 Ohio. 
St. 32, 4 N. E. 398 (1886); Tulane Hotel Co. v. Holohan, 112 Tenn. 214, 79 
S. W. 113 (1903); Bernard v. Lalond, 8 Leg. News, 215 (Can. 1885); Holmes 
V. Moore, 17 L. C. R. 143 (1867). 

18 Doorman v. Jenkins, 2 A. & E. 256, 4 Nev. & M. 170, 4 L. J. K. B. 29 
(Eng. 1834); Coykendall v. Eaton, 55 Barb. (N. Y.) 188, 37 How. Pr. 438 
(1869); George v. Depierris, 17 N. Y. Misc. 400, 39 N. Y. Supp. 1080 (1896). 

17 Doorman v. Jenkins, 2 A. &. E. 256, 4 N. & M. 170, 4 L. J. K. B. 29 
(Eng. 1834). 

[142] 



Chap. XVI.] Responsibility as a Mere Bailee. [§ 206. 

§ 206. Responsibility for misdelivery. 

A misdelivery of goods bailed is ordinarily held to make even 
a gratuitous bailee liable. This is obviously true if the mis- 
delivery was neghgent. So of a delivery to an apparent 
stranger who claims it without an effort to verify his claim.** 
And so where the goods were wrongly delivered to an express- 
man who brought a sUp of paper with the owner's name on it, 
the innkeeper was held liable.*^ The facts of the case were 
as follows. The plaintiff had been a boarder at the defend- 
ant's inn, as a servant to other boarders, but she had de- 
parted from the inn, leaving her trunk behind. On Novem- 
ber 18, 1895, the plaintiff left the order with Jackson's express 
to call for her trunk. Manning, one of the drivers employed 
by that concern, called at the hotel for the trunk the next 
morning and demanded the trunk, but was told that it had 
been delivered to another expressman on the previous day. 
The defendant proved that a man with a wagon called on 
November 18, 1895; that he had a slip of paper with the plain- 
tiff's name thereon, and that upon demanding the trunk he 
was allowed to take it. The defendant took no receipt for 
the trunk. Randolph, the hall man, who delivered it, testified 
that he had worked in hotels for six or seven years, and that 
in general they took receipts, but that "he did not think to 
take a receipt for help's trunks." He did not obtain the name 
of the man to whom he delivered it, or ascertain the license 
number of his wagon, or require him to leave the slip of paper 
containing the plaintiff's name; so that the defendant was 
unable to give any information concerning where the trunk 
had gone or where it could be found, further than it was given 
to an unknown expressman. The plaintiff testified that the 
delivery made was without her authority; and that, although 
she had consulted detectives and made efforts to recover her 
property, she had not been able to obtain it. 

Under these circumstances the court held the defendant 

18 Wear v. Gleason, 52 Ark. 364, 12 S. W. 756, 20 Am. St. Rep. 186 (1889). 
10 George v. Depierris, 17 N. Y. Misc. 400, 39 N. Y. Supp. 1082 (1896). 

[143] 



§ 207.] Innkeepers. [Chap. XVI. 

liable. The delivery of the trunk was not the exercise of that 
care which the law imposed upon the plaintiff; and the facts 
showed an indifference respecting the safety of the plaintiff's 
property and disregard of the usage as to taking receipts which 
excludes the idea that any diligence was used by the defendant 
to insure its delivery to her. - 

The innkeeper is equally liable for a misdelivery the circum- 
stances of which are unexplained. The burden is upon him 
to explain the loss.^° And there is good authority and reason 
for the view that even a gratuitous bailee is Uable in case of 
a misdelivery, however careful he may have been to secure a 
good deUvery; for it is departing from the terms of his bail- 
ment.^^ 

TOPIC III. 

RESPONSIBILITY FOR GOODS OF GUEST OUTSIDE THE INN. 

§ 207. Goods in bath house attached to inn. 

Where the goods of a guest are left in charge of the innkeeper 
outside the precincts of the inn, though the innkeeper is not 
as such Uable for the goods, he is nevertheless responsible for 
the exercise of due care. So where an innkeeper provided bath 
rooms, outside the inn, for his guests, and the guest's goods 
were lost from the bath room, while the iimkeeper is not Uable 
on a declarartion charging him as innkeeper ^^ he is Uable for 
loss by his negUgence or misdeUvery.^^ 

20 Murray v. Clarke, 2 Daly (N. Y.), 102 (1866). 

21 Jenkins v. Bacon, 111 Mass. 373 (1873). 

22 Minor v. Staples, 71 Me. 316, 36 Am. Rep. 318 (1880). 

23 Tombler v. Koelling, 60 Ark. 62, 28 S. W. 795 (1894). The defendant 
was the keeper of the bath house, not an innkeeper, but the same principle 
is involved. 



[144] 



Chap. XVII.] Limitation of Responsibility. 



[§ 212. 



CHAPTER XVII. 



LIMITATION AND MODIFICATION OF HESPONSIBILITY. 



211. Limitation of liability by con- 

tract. 

212. Reasonable rules for the con- 

duct of the guest. 



§ 213. Rule requiring deposit of the 
goods. 

214. How far deposit can be re- 

quired. 

215. Sufficiency of the notice. 



§ 211. Limitation of liability by contract. 

Like other persons engaged in a public employment, for in- 
stance, the common carrier, the innkeeper may not limit his 
liability for loss of the guest's goods, as it is imposed by the 
common law, by a contract with the guest. ^ The same neces- 
sity of the guest who applies to be received which leads to the 
obligation to receive him, puts him at the mercy of the inn- 
keeper who requires a consent to the limitation of liabihty as 
a condition of his being received. The parties are not on an 
equal footing, and public policy requires that the guest be pro- 
tected. The contract therefore for limitation of the innkeep- 
er's liabiUty is void as against pubUc poUcy. 

For the same reason, the innkeeper cannot require the guest 
to take charge of his own goods, for that would in effect be a 
refusal to take them into the inn.^ 



§ 212. Reasonable rules for the conduct of the guest. 

Like the common carriers and others engaged in a public 
occupation, the innkeeper may make reasonable rules for the 

1 Stanton v. Leland, 4 E. D. Smith (N. Y.), 88 (1855); Fuller v. Coats, 18 
Ohio St, 343 (1868). 

2 Calye's Case, 8 Coke, 63 (1584). 

10 [ 145 ] 



§ 213.] Innkeepers. [Chap. XVII. 

conduct of his business. These rules cannot affect the nature 
or extent of his obligation, as for instance, his habihty for loss 
of goods, or they would be open to the same objection as con- 
tracts hmiting Uability. They may, however, so far as is rea- 
sonable, affect the conduct of himself and his guests.' "The 
protection of the innkeeper by reasonable rules respecting the 
custody of the goods of the guest while he remains at the inn, 
is not disfavored in the law, and it is eminently just that he 
upon whom the responsibility for the safety of the goods doth 
rest, shall have power to use such guards for that safe keeping 
as are consistent with the due comfort and convenience of the 
guest. The clothing of the guest, and articles necessary for 
his daily use and comfort while remaining, could not, of course) 
under this view of the subject, be removed from him, so as to 
interfere with or interrupt that use and convenience. But 
goods, merchandise and money, in trunks or packages, are, 
in my opinion, subject to the landlord's reasonable requirement 
in this respect. " * 

§213. Rule requiring deposit of the goods. 

The commonest form of regulation is a rule that valuable 
packages must be left at the office to be placed ia the safe. 
So far as this may be reasonably required of a guest, failure to 
do so will exonerate the innkeeper from loss.® This is no more 
than just to the innkeeper; for since the innkeeper can have 
no effective control over articles taken by the guest into his 
room, he ought where the risk is great to be allowed to exercise 
a more direct and efficient control. As Mr. Chief Justice Day 
said in the case of Fuller v. Coats, cited in the last note, "To 
enable the innkeeper to discharge his duty, and to secure the 
property of the traveller from loss, while in a house ever open 
to the public, it may, in many instances, become absolutely 
necessary for him to provide special means, and to make 

3 Stanton v. Leland, 4 E. D. Smith (N. Y.), 88 (1855). 
■1 Woodruff, J., in Stanton v. Leland, 4 E. D. Smith (N. Y.), 88 (1855). 
6 Stanton v. Leland, 4 E. D. Smith (N. Y.), 88 (1855); FuUer v. Coats, 
18 Ohio St. 343 (1868). 
[146] 



Chap. XVII.] Limitation of Responsibility. [§ 214. 

necessary regulations and requirements to be observed by 
the guest, to secure the safety of his property. When such 
means and requirements are reasonable and proper for that 
purpose, and they are brought to the knowledge of the guest, 
with the information that, if not observed by him, the inn- 
keeper will not be responsible, ordinary prudence, the interest 
of both parties, and public policy, would require of the guest 
a compliance therewith; and if he should fail to do so, and his 
goods are lost, solely for that reason, he would justly and 
properly be chargeable with negUgence. To hold otherwise, 
would subject the party without fault to the payment of dam- 
ages to a party for loss occasioned by his own negligence, and 
would be carrying the liability of innkeepers to an unreason- 
able extent." 

As will be seen in the next chapter, the defence of the inn- 
keeper does not so properly rest upon the neglect of due care 
by the guest as upon neglect of a more specific duty, that is, 
the duty of acting in accordance with the innkeeper's direc- 
tions. The notice of the innkeeper's reasonable rule for the 
conduct of the guest in this respect puts upon the guest the 
duty of abiding by the rule; and if the guest neglects the duty 
of abiding by the innkeeper's reasonable regulation the inn- 
keeper is for that reason exempted from responsibility for the 
resulting loss. 

A similar requirement is often made by statute. Such 
statutes will be collected and discussed in a subsequent chapter. 

An innkeeper is liable for the loss of everything deposited 
under this notice.* 

§ 214. How far deposit can be required. 

The notice is effective only as to property which can con- 
veniently be left in the safe, not as to property which the guest 
needs to keep by him; clothing and articles of daily use are 
not covered by it.^ For it is obvious that the guest must have 

ePinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657 (1867). 
'Johnson v. Richardson, 17 111. 302, 63 Am. Dec. 369 (1855); Milford v. 

[147] 



§ 215.] Innkeepers. [Chap. XVII. 

these things by him in his room. He cannot go to the inn- 
keeper's office every time he needs an article of clothing to 
wear or a little money to spend, nor can he withdraw his watch 
from the safe whenever he desires to know the time. It is, 
therefore, not reasonable to require him to surrender these 
things to the innkeeper. 

It may of course be argued that he might be forced to exer- 
cise the option of surrendering them to the innkeeper or of 
taking himself the risk of losing them, as he would do if he 
carried them with him into the street outside the inn. But 
it is to be observed that if the innkeeper by means of his notice 
can force this alternative upon the guest, since the first course 
is impracticable, he is really forcing the guest to take the risk 
of loss, or in other words is limiting his own liability by notice, 
a thing which he is forbidden by law to do. A different prob- 
lem is presented when a statute requires the guest to sur- 
render goods to the landlord on notice, or else to take the risk 
of loss. The risk of loss may of course be placed upon the 
guest by statute, though it cannot be placed upon him by 
notice or contract of the innkeeper; and it is therefore a mere 
matter of interpreting the statute in order to discover whether 
the language of it covers the case. The question so far as it 
involves the construction of a statute will be discussed in a 
later chapter. 

§ 215. Sufficiency of the notice. 

The notice must be given reasonably. Notice given a year 
previously to the person becoming a guest is not reasonable.* 

Notice posted on the door of the guest's chamber was held 
not to be brought home to the guest unless it was found as 
a matter of fact that he either saw it or was negligent for not 
doing so.* 

Wesley, 1 Wilson (Ind.), 119 (1872); Stanton v. Leland, 4 E. D. Smith 
(N. Y.), 88 (1855). 

8 Lanier v. Youngblood, 73 Ala. 587 (1883). 

» Bodwell V. Bragg, 29 la. 232 (1870). 
[148] 



Chap. XVII.] Limitation of Responsibility. [§ 215. 

The notice must be construed strictly. Thus a notice that 
"valuables" must be put in the safe has been held not to ex- 
tend to mineral specimens ^° or to money; ^^ and a notice that 
the guest had better dispose of goods in a certain way is not 
notice that he must do so in order to hold the landlord re- 
sponsible.^^ 

10 Brown Hotel Co. v. Burckhardt, 13 Col. App. 59, 56 Pao. 188 (1899). 

11 Stanton v. Leland, 4 E. D. Smith (N. Y.), 88 (1855). 
" Packard v. Northcraft, 2-Metc. (Ky.) 439 (1859). 



[149] 



§ 221.] 



Innkeepers. 



[Chap. XVIII. 



CHAPTER XVIII. 



LOSS CHAEGEABLE TO THE GUEST; CONTRIBUTORY NEGLIGENCE. 



221. Goods taken by servant or 

companion of guest. 

222. Goods injured because of 

owner's act. 

223. Goods lost by reason of con- 

tributory negligence of 
guest. 

224. What is contributory negli- 

gence: failure to lock door 
or window. 



§ 225. Faliure to deliver valuables 
to innkeeper. 

226. Failure to inform innkeeper 

of value of goods deposited. 

227. Publicly exhibiting money or 

valuables. 

228. Other acts of negligence. 



§ 221. Goods taken by servant or companion of guest. 

If the loss of the goods is chargeable in any way to the guest 
himself, the innkeeper is absolved. Thus the innkeeper is not 
responsible if the goods are taken by the guest's servant,^ or 
by one who accompanied the guest to the inn and shared his 
room by his will.^ Of course, if the innkeeper himself put the 
thief into the guest's room, the innkeeper is hable, even though 
the guest consent. 

In Horslow's Case,' counsel for the defendant said in argu- 
ment: " Suppose I with my good will suffer a stranger to lodge 
with me in the inn, and in my chamber, which stranger robs 
me, and I do not know him, shall not the innkeeper be charged 
with it?" To which Newton, C. J., answered: "No, sir; when 
he was lodged in your chamber not by the innkeeper, but by 

1 Calye's Case, 8 Coke, 32 (1584). 

2Calye's Case, 8 Coke, 32 (1584); Horslow's Case, Y. B. 22 Hen. 6, 21, 
pi. 38 (1444). 

3 Y. B. 22 Hen. 6, 21, pi. 38 (1444). 
[150] 



Chap. XVIIL] Loss Chargeable to Guest. [§ 222, 

your own sufferance; but if he was lodged with you by the 
innkeeper, then the innkeeper shall be charged. And suppose 
that your own servant who is with you in the inn robs you 
shall the innkeeper be charged? Certainly not." 

On this principle, if a guest allows another to appear to be 
the owner of the goods and to exercise acts of ownership over 
them, and the latter carries the goods away, the innkeeper is 
excused.* 

§ 222. Goods injured because of owner's act. 

^ So,'where the guest gives exphcit directions as to the care of 
the goods, and the loss happens through following such direc- 
tions, the innkeeper is not liable. So in Owens v. Geiger ^ 
the facts, as stated by the court, were that the defendant was 
an innkeeper, and the plaintiff "delivered his horse to him 
to be kept till his return, as he was going to foreign parts; that 
Owens agreed with Geiger as to the feeding and keeping of the 
horse till his return, for which Owens was to pay a reasonable 
reward;" and "that Owens told Geiger that he wished his 
horse to run in his yard in the daytime, his legs being swelled." 
Owens's horse was put into the yard, jumped out and escaped, 
and was lost. The court held an instruction to the jury that 
"if they beUeved that Owens's horse was put into the defend- 
ant's yard by Owens's direction, and that the horse escaped 
therefrom without negligence on the part of Geiger, then they 
must find for the defendant," was correct. And so where the 
guest gives the goods, not to the innkeeper or to his servant 
as such, but to another guest or other inmate in whom he re- 
poses confidence, and the goods are embezzled, the innkeeper 
is not Uable.® 

4 Kelsey v. Berry, 42 111. 469 (1867). But the fact that the owner had 
several times taken the thief into his room, and had authorized him to sell 
goods from the samples there (but not to remove them) did not justify the 
innkeeper in admitting the thief to the room, or excuse him for loss of the 
goods. Jacobi v. Haynes, 14 N. Y. Misc. 15, 35 N. Y. Supp. 120 (1895). 

5 2 Mo. 39, 22 Am. Dec. 435 (1828). 

« Houser v. Tully, 62 Pa. 92, 1 Am. Rep. 390 (1869). 

[151] 



1 223.] Innkeepers. [Chap. XVIII. 

§ 223. Goods lost by reason of contributory negligence of guest. 

The loss of goods is most conimonly chargeable to the guest 
himself by reason of contributory negligence on the part of the 
guest. A guest cannot recover for the loss of his goods from 
an inn if his own negligence contributed to the loss.'' 

In order to protect the innkeeper from liabihty the negli- 
gence of the guest need not be gross.* It is enough if it is the 
want of such ordinary care as a reasonable prudent man would 
exercise imder the existing circumstances.^ And the care re- 
quired of the guest must not be such care as will cause him 
serious personal inconvenience ; the innkeeper cannot call upon 
the guest seriously to inconvenience himself in such a mat- 
ter.^" A fortiori the guest cannot be called upon to run into 
danger.^^ 

Whether the negligence of the guest did contribute to the 
loss is a question of fact ; ^^ and the burden of proof of this fact 
is on the iimkeeper." If the innkeeper might subsequently 

' Burgess v. Clements, 4 M. & S. 306, Holt, 211 n., 1 Stark. 251 n. (Eng. 
1815); Armistead v. Wilde, 17 Q. B. 261, 20 L. J. Q. B. 524, 15 Jur. 1010 
(Eng. 1851); Cashill v. Wright, 6 E. & B. 891, 2 Jur. N. S. 1072, 4 W. R. 
709 (Eng. 1856); Elcox v. HiU, 98 U. S. 218, 25 L. ed. 103 (1878); Cham- 
berlain V. Masterton, 26 Ala. 371 (1855); Sasseen v. Clark, 37 Ga. 242 (1867); 
Watson V. Loughran, 112 Ga. 837, 38 S. E. 82 (1901); Hulbert v. Hartman, 
79 lU. App. 289 (1898); Spring v. Hager, 145 Mass. 186, 13 N. E. 479 (1887); 
Rubenstein v. Cruikshanks, 54 JJich. 199, 19 N. W. 954, 52 Am. Rep. 806 
(1884); Hadley v. Upshaw, 27 Tex. 547, 86 Am. Dec. 654 (1864). 

8 CashiU V. Wright, 6 E. & B. 891, 2 Jur. N. S. 1072, 4 W. R. 709 (Eng. 
1856); Lanier v. Youngblood, 73 Ala. 587 (1883); Fowler v. Dorlon, 24 
Barb. (N. Y.) 384 (1856). 

9 Lanier v. Youngblood, 73 Ala. 587 (1883); Hadley v. Upshaw, 27 Tex. 
547, 86 Am. Dec. 654 (1864). 

10 Maltby v. Chapman, 25 Md. 310 (1866). 

11 Jefferson Hotel Co. v. Warren, 128 Fed. 565 (1904). 

12 Armistead v. Wilde, 17 Q. B. 261, 20 L. J. Q. B. 524, 15 Jur. 1010 (Eng. 
1851); Jefferson Hotel Co. v. Warren, 128 Fed. 565 (1904); Lanier v. Young- 
blood, 73 Ala. 587 (1883); Hadley v. Upshaw, 27 Tex. 547, 86 Am. Dec. 654 
(1864); Read v. Amidon, 41 Vt. 15, 98 Am. Dec. 560 (1868). Of course the 
facts may be so clear'that the court will decide the question without leaving 
it to the jury. Lanier v. Youngblood, 73 Ala. 587 (1883). 

13 Jefferson Hotel Co. v. Warren, 128 Fed. 565 (1904). 

[152] 



Chap. XVIIL] Loss Chargeable to Guest. [§ 223. 

have avoided the effect of the guest's negligence but failed to 
do so, he cannot escape liability." 

In the case of Medawar v. Grand Hotel Company, cited in 
the last note, the plaintiff sued the defendant innkeeper for 
the loss of certain jewelry. The plaintiff came to the inn and 
found it full, with the exception of one room which had been 
engaged in advance by another person. The plaintiff, however, 
was allowed to dress in the room, and keep it untU the arrival 
of the person who had engaged it. He went to the room, 
opened his bag, and took out a stand which contained various 
implements for the toilet, and also in a drawer the trinkets 
for the loss of which he sued. After he finished dressing he 
went out, leaving the stand on the dressing table and the door 
of the room unlocked, and left the irm to attend the races. 
While he was absent the person who had engaged the room 
arrived, and in order to clear the room for his occupancy the 
stand with the plaintiff's other luggage was placed in the 
corridor, where it remained until the plaintiff's return, that 
night. While the luggage was in the corridor the jewelry was 
stolen. The High Court held that the innkeeper was not liable, 
but the Court of Appeal reversed the decision. On the point 
here under discussion Lord Esher, Master of the RoUs, re- 
marked: "There was contributory negligence on the part of 
the plaintiff while the goods were in the room; but when the 
defendant's servants went into the room and became aware 
of the plaintiff's negligence they were bound to take reason- 
able care of the property. When they saw the negligence of 
the plaintiff they ought to have taken care not to be negligent 
themselves. If the jewelry was stolen while it was in the 
corridor, it was stolen not in consequence of the plaintiff's 
negligence, but by reason of the defendant's negligence." 

The negligence must of course have to do with the loss of 

"Watson V. Loughran, 112 Ga. 837, 38 S. E. 82 (discovered that guest 
left door unlocked and yet did not lock it). Medawar v. Grand Hotel Co. 
(1891), 2 Q. B. 11, 60 L. J. Q. B. 209, 64 L. T. 851, 55 J. P. 614 (discovered 
door unlocked, and removed goods to public corridor). 

[153] 



§ 224.] Innkeepees. [Chap. XVIII. 

the goods themselves ; and evidence of careless conduct by the 
guest either before or after the time he was at the inn will not 
be received. ^^ 

It is obvious that the question is the same, whether the 
owner of the goods is guest, boarder or lodger; siace contrib- 
utory negUgence will bar them all. The cases of all will there- 
fore be considered together. 

§ 224. "What 'is contributory negligence : failure to lock door or 
window. 

In accordance with the general doctrine, it is a question of 
fact in each case whether a failure upon the part of the guest 
to lock his door at night constitutes such negUgence as to pre- 
vent him from recovering from the innkeeper the value of the 
goods stolen from his room; and it is a question for the jury 
unless the facts are so plain that the court will not leave it to 
the jury. 

In one case a lodger in a city lodging house left his own door 
unlocked, while he knew that the outer door was left imlocked, 
and anyone might enter the house and the rooms unnoticed. 
He was held to be barred by his own negUgence from recover- 
ing for goods lost from his room.^^ This case is stronger than 
the ordinary case for two reasons. First, it being a case of a 
lodging house, the lodger could recover only on the ground of 
the housekeeper's negUgence, which in this case was alleged 
to be the very act of leaving the outer door imlocked which 
he knew and might have guarded against. Second, in the case 
of an ordinary inn where the outer door is imlocked the inn- 
keeper or his servant is on the watch to keep out thieves. 

In a few cases the coiu-t has held, upon the whole evidence 
(usually after a verdict for the plaintiff) that failure to lock a 
door was not negUgence." And in one case where the inn- 

15 Burrows v. Trieber, 21 Md. 320, 83 Am. Dec. 590 (1864). 

"Swann v. Smith, 14 Daly (N. Y.), 114 (1887). 

"Mitchell V. Woods, 16 L. T. 676 (Eng. 1867); Buddenburg v. Benner, 
1 Hilt. (N.Y.) 84 (1856) (boarding house); Cunningham v. Bucky, 42 W. Va. 
671, 26 S. E. 442, 35 L. R. A. 850 (1896). 
[154] 



Chap. XVIII.] Loss Chargeable to Guest. [§ 224. 

keeper directed the guest not to lock the door, as other persons 
were to go into the same room, the court without leaving the 
question to the jury decided that the guest who left the door 
unlocked was not thereby barred from recovery.^* 

In a case in Illinois (where the innkeeper is not responsible 
without negUgence) it was held that a guest carmot recover 
where the evidence shows that he probably left the door un- 
locked, and that he failed to deposit his valuables in the office 
in accordance with the requirements of a notice which he saw.^^ 

In most cases, however, it has been held that the failure to 
lock the door is sufficient evidence of contributory negligence 
to go to the jury; and that the jury is to determine the fact 
upon that and all the other evidence^JSSJand a dismissal of the 
suit by the judge on the groimd of contributory negligence, 
without leaving the question to the jury, is erroneous.^^ 

All the circumstances are to be considered by the jury in 
determining this fact ; as, for instance, that the inn was a Lon- 
don inn, where bad characters might be expected to seek en- 
try,^^ or that the valuable goods or money had been pubUcly 
displayed.^^ 

"The fact of the guest having the means of secimng himself, 
and choosing not to use them, is one which with the other cir- 

isMnford V. Wesley, 1 Wilson (Ind.), 119 (1872). 

19 Hulbert v. Hartman, 79 111. App. 289 (1898). 

20 Oppenheim v. White Lion Hotel Co., L. R. 6 C. P. 515, 40 L. J. C. P. 
231, 25 L. T. 93 (Eng. 1871); Filipowsld v. Meriyweather, 2 F. & F. 285 
(Eng. 1860); Herbert v. Markwell, W. N. (Eng. 1882) 112, affirming S. C, 
45 L. T. 649, 46 J. P. 358; Spice v. Bacon, 36 L. T. 896 (Eng. 1877); Bohler 
V. Owens, 60 Ga. 185 (1878); Murchison v. Sergent, 69 Ga. 206, 47 Am. Rep. 
754 (1882); Batterson v. Vogel, 10 Mo. App. 235 (1881); Dimbier v. Day, 
12 Neb. 596, 12 N. W. 109, 41 Am. Rep. 772 (1882); Ramaley v. Leland, 6 
Robt. (N. Y.) 358 (1868); Becker v. Warner, 90 Hun (N. Y.), 187, 35 N. Y. 
Supp. 739 (1895); Shultz v. Wall, 134 Pa. 262, 19 Atl. 742 (1890). 

21 Classen v. Leopold, 2 Sweeney (N. Y.), 705 (1870). 

22 Filipowski v. Merryweather, 2 F. & F. 285 (1860), per Erie, C. J. 

23 Oppenheim v. White Lion Hotel Co., L. R. 6 C. P. 515, 40 L. J. C. P. 
231, 25 L. T. 93 (Eng. 1871); Herbert v. Markwell, W. N. (Eng. 1882) 112, 
affirming S. C, 45 L. T. 649, 46 J. P. 358; Dunbier v. Day, 12 Neb. 596, 12 
N. W. 109, 41 Am. Rep. 772 (1882). 

[155] 



§ 224.] Innkeepers, [Chap. XVIII. 

cumstances of the case should be left to the jury. The weight 
of it must, of course, depend upon the state of society at the 
time and place. What would be prudent in a small hotel, in 
a small town, might be the extreme of imprudence at a large 
hotel in a city Uke Bristol, where probably three hundred bed- 
rooms are occupied by people of all sorts. " ^^ 

The fact of the guest having the means of securing himself 
and not choosing to use them, is one which, with the other 
circumstances of the case, should be left to the jury. It should 
not be singled out and put to the jury as a test of negUgence. 
The question is, whether the loss would or would not have 
happened if the plaintiff had used the ordinary care that a 
prudent man might reasonably be expected to have taken un- 
der the circumstances. The jury are not to be told that, if by 
reasonable care the plaintiff might have locked his door and 
did not do so, this is such negUgence as to exonerate the inn- 
keeper, if the loss occurred through leaving the door unlocked.^^ 

Failure of the guest, after locking the door, to bolt it also, 
when he did not see the bolt nor have it called to his attention, 
is so clearly not contributory negUgence that the court will not 
allow the jury to pass on the question, but wiU direct the jury 
that such failure will not defeat the action.^® The court in 
this case said: 

"It must often depend much upon the circumstances of the 
case, the customs of the age and coimtry, and the usages of 
the place, whether the plaintiff has been guilty of such negU- 
gence that the loss can be said to be attributable to it; and we 
cannot say, as matter of law, that on the facts appearing in 
this case, if the plaintiff saw the bolt, and did not use it, this 
was not some evidence of negUgence to be submitted to the 
jury. The deUvery of a key to a guest may be held to be an 
intimation to him that he is to use it in locking his door. The 

^ M. Smith, J., in Oppenheim v. White Lion Hotel Co., L. R. 6 C. P. 515 
40 L. J. C. P. 231, 25 L. T. 93 (Eng. 1871). 
25 Batterson v. Vogel, 10 Mo. App. 235. 
28 Spring V. Hager, 145 Mass. 186, 13 N. E. 479 (1887). 
[156] 



Chap. XVIII.] Loss Chargeable to Guest. [§ 225. 

lock, however, is the only fastening which the guest can use 
when not in the room. A bolt, if seen, may itself suggest that 
it ought to be used. If, however, there are no regulations 
brought to the notice of a guest requesting him to bolt the 
door, and if it is not known to the guest that there is a bolt, 
and his attention is not in any way called to it, we think the 
fact that, after locking his door with the key, he does not 
search for a bolt and find it, is not evidence of negligence on 
his part." A new trial was granted, after a verdict for the 
defendant, by reason of the failure of the judge to direct the 
jury as the plaintiff requested. 

On the other hand, where the guest saw the bolts, failure to 
use them was reUed on as one element of negligence to bar his 
recovery.^'' Failure to notify the innkeeper that the lock is 
out of repair is not neghgence on the part of the guest.^* 

§ 225. Failure to deliver valuables to innkeeper. 

In the absence of special circumstances, it is not negligence 
for the guest to retain valuables in his own possessioii instead 
of depositing them with the innkeeper.^^ So the innkeeper is 
responsible for the loss of money locked in a trunk in the 
guest's room,^" or worn upon his person in a money belt while 
he is asleep.^^ 

So it is not neghgence to leave the goods in a pubUc room 
in the inn, if it is with the assent of the innkeeper or his serv- 
ants, even though the innkeeper informed the guest that the 
goods would be safer elsewhere. Thus where the goods were 
left in the lobby of the inn and were lost, the iimkeeper was 
Uable, though the innkeeper's servant had informed the guest 
that the "commercial room" was the usual and proper place 

2'Hulbert v. Hartman, 79 111. App. 289 (1898). 

28 Lanier v. Youngblood, 73 Ala. 587 (1883). 

zoMurchison v. Sergent, 69 Ga. 206, 47 Am. Rep. 754 (1882); MoClay v. 
Nash, 6 Ky. Law Rep. 298 (1884); Smith v. Wilson, 36 Minn. 334, 31 N. W. 
176 (1887); Jalie v. Cardinal, 35 Wis. 118 (1874). 

30 Berkshire Woolen Co. v. Proctor, 7 Gush. (Mass.) 417 (1851); Van Wyck 
V. Howard, 15 How. Pr. (N. Y.) 147 (1856). 

31 Smith V. Wilson, 36 Minn. 334, 31 N. W. 176 (1887). 

[157] 



§ 225.] Innkeepers. [Chap. XVIII. 

for such goods, and had offered to put them there, but had left 
them in the lobby at the guest's request.^^ 

So, where an innkeeper, as his guest was about to go to bed, 
remarked to him that he had better take his valise to his room, 
to which he repUed it was not necessary, that his valise would 
be safe in the barroom, where it was allowed to remain; and 
on the next morning it was gone and could not be found, it 
was held that the keeper was hable for its loss.^^ 

Where, however, the guest's act is not expressly permitted 
by the innkeeper, though known to him, the question of ha- 
bility is for the jury. Thus where the guest laid down a val- 
uable pair of gloves on a bench in a public room in the presence 
of the innkeeper, and they were lost, the question of contrib- 
utory negUgence must be determined by the jury.*^ 

The fact that a custom exists to deposit valuables with the 
iimkeeper does not render it neghgence in the guest not to do 
so, if the custom was unknown to him; though if he knew of 
it, it might be negligent in him to fail to comply with it.^^ 

Where, however, the guest has express notice that he takes 
the risk of loss if he does not deposit his valuables with the 
innkeeper, he is neghgent if he fails to comply with the notice.^" 
Thus were a guest saw a notice to the effect that "the propri- 
etor wiU be happy to take charge of any valuables," it was 
held negUgent for the guest to leave money in a bag in his 
room, and he was not allowed to recover for the loss of it." 
Pigott, B., said: "The invitation embodied in the notice was 
equivalent to a warning of risk. After that warning it was 
negligent in the plaintiff to leave his property as he did;" and 
Bramwell, B., characterized the plaintiff's conduct as "most 
careless." So where the guest asked if the goods would be 
safe in his room, and he was told he must leave them at the 

32 Candy v. Spencer, 3 F. & P. 306 (1862). 

33 Packard v. Northcraft, 2 Met. (Ky.) 439 (1859). 

34 Read v. Amidon, 41 Vt. 15, 98 Am. Deo. 560 (1868). 

35 Berkshire "Woolen Co. v. Proctor, 7 Cush. (Mass.) 417 (1851). 
30 Jalie V. Cardinal, 35 Wis. 118 (1874) (semhk). 

3? Jones V. Jackson, 29 L. T. 399 (Eng. 1873). 
[158] 



Chap. XVIII.] Loss Chargeable to Guest. [§ 226. 

bar, but notwithstanding this warning he kept them in his 
room and they were lost, he was barred from recovery by his 
negUgence.^* 

The notice, in order to affect the guest with the risk of loss, 
must be clear; and other courts might perhaps have decided 
differently on the facts of the English case just stated. A no- 
tice that packages of value may be deposited in the office safe, 
and cautioning guests against leaving money or valuables in 
a guest's room, was held in a New York case insufficient to 
put the risk of loss of goods left in the room upon a guest. 
"This may very well have been understood, as Forbes appears 
to have understood it, as merely cautioning him against leav- 
ing money or valuables loose or exposed about his room. If 
the landlord, to enable him the more effectu!ally to secure the 
property, requires soniething to be done by the guest, it must 
appear that what was reqtured was in itself reasonable, and 
that the guest was distinctly informed of what was necessary 
to be done on his part. Whether the request was made orally 
or in the form of a printed notice, it should be in terms so 
clear and immistakable as to leave room for no reasonable 
doubt as to what was intended. The traveller should know 
precisely what he is to do before he can be chargeable with 
negligence for not doing it; and as the notice did not apprise 
him that he was not to leave money locked up in his trunk, 
he carmot be regarded as guilty of negligence in so leaving it. " ^^ 

§ 226. Failure to inform innkeeper of value of goods deposited. 

It is not negUgence to fail to inform the innkeeper that a 
package put into his possession or that of his servants con- 
tains valuables.*" 

38 Wilson V. Halpin, 30 How. Pr. (N. Y.) 124, 1 Daly, 496 (1865). 

39 Van Wyck v. Howard, 12 How. Pr. (N. Y-) 147 (1856). 

« Coskeiy v. Nagle, 83 Ga. 696, 10 S. E. 491, 20 Am. St. Rep. 333, 6 
L. R. A. 483 (1889) ; Johnson v. Richardson, 17 111. 302, 63 Am. Dec. 369 (1855) ; 
Bowell V. DeWald, 2 Ind. App. 303, 28 N. E. 430 (1891); Shoecraft v. Bailey, 
25 la. 653 (1868); Rubenstein v. Cruikshanks, 54 Mich. 199, 19 N. W. 954, 
52 Am. Rep. 806 (1884); Fowler v. Dorlon, 24 Barb. (N. Y.) 384 (1856). 

[159] 



§ 227.] Innkeepers. [Chap. XVIII. 

§ 227- Publicly exhibiting money or valuables. 

Opening or coxinting one's money or exhibiting valuable 
goods in a pubUc place is not of itself such negligence as will 
bar recovery by the guest,*^ but it is one of the circumstances 
to be considered by the jury which may find the act negligent.*^ 
In Armistead v. WUde the plaintiff was a guest at an inn, 
and had lost from a box which he brought to the inn a parcel 
containing several hundred pounds in bank notes. Upon the 
facts being examined, the evidence showed that the plaintiff 
had boasted of the sum which he possessed, and had ostenta- 
tiously rolled up the notes and put them in the box in the 
travellers' room in the presence of several persons, and had then 
left the box in the travellers' room, imperfectly secured. One 
of the persons to whom the plaintiff had shown the notes was 
probably the thief. The judge directed the jury to find a ver- 
dict for the defendant if they thought the plaintiff "had been 
guilty of gross negligence in leaving the money in the travellers' 
room;" and the jury accordingly found a verdict of not guilty. 
The plaintiff had the temerity to move for a new trial on the 
groimd of misdirection, but the rule was discharged. Lord 
Chief Justice Campbell said: "Suppose a guest were to count 
out his money and leave it lying loose on the table of the 
public room; surely that might be such gross negligence as 
to be the cause of the loss. The facts here do not go so far 
as that; but there was evidence that the plaintiff's servant 
in a public room took out a large sum of money, counted it 
and showed it, and then left it there in a box capable of being 
opened without using a key. These facts might or might not 
amount to negligence; but they were evidence of it; and it 
was a fair question for the jury." 

The court also noticed that the judge in his charge had 

" Dunbier v. Day, 12 Neb. 696, 12 N. W. 109, 41 Am. Rep. 772 (1882); 
Cuimmgham v. Bucky, 42 W. Va. 671, 26 S. E. 442, 35 L. R. A. 850 
(1896). 

« Armistead v. Wilde, 17 Q. B. 261, 20 L. J. Q. B. 524, 15 Jur. 1010 
(1851); CashiU v. Wright, 6 E. & B. 891, 2 Jur. N. S. 1072, 4 W. R. 709 
(1856). 

[160] 



Chap. XVIII.] Loss Chargeable to Guest. [§ 228. 

spoken of "gross" negligence, and intimated that this was 
more favorable to the plaintiff than he had a right to ask. 

§ 228. Other acts of negligence. 

Intoxication of the guest is not in itself contributory negli- 
gence,'*' but if it contributes in any way to the loss it bars the 
recovery.*^ 

Failure to inquire after the safety of the goods for several 
days after the innkeeper received them is not negUgence;"" 
nor failure to occupy the room at night; ** nor failure to re- 
quest a search of a place in which the goods might be.*'' 

43 Cunningham v. Bucky, 42 W. Va. 671, 26 S. E. 442, 35 L. R. A. 442 
(1896). 
" Walsh V. Porterfield, 87 Pa. 376 (1878). 
« Eden v. Drey, 75 111. App. 102 (1898). 

« Turner v. Whitaker, 9 Pa. Super. Ct. 83, 43 Wkly. Notes Cas. 375 (1898). 
«7 Dunbier v. Day, 12 Neb. 596, 12 N. W. 109, 41 Am. Rep. 772 (1882). 



11 [ 161 ] 



§ 231.] 



Innkeepers. 



[Chap. XIX. 



SUBTITLE lY. 

THE END OF RESPONSIBILITY. 

CHAPTER XIX. 

TEEMINATION OF RELATION OF HOST AND GUEST. 



231. Guest leaves the inn finally. 

232. Responsibility during tem- 

porary absence of guest. 

233. What is a merely temporary 

absence. 



§ 234. Responsibility during reason- 
able time for removal. 
235. Goods received after termina- 
tion of relation. 



§ 231. Gruest leaves the inn finally. 

If the guest pays his bill and leaves the inn without any in- 
tention of returning, but leaves goods, with consent of the inn- 
keeper, to be kept until called for, the relation of host and 
guest is at an end, and the innkeeper is hable as gratuitous 
bailee only.^ In Hays v. Turner, just cited in support of this 
proposition, the facts proved were that the defendant was an 
innkeeper, and the plaintiff stopped at the inn as a guest, 
having a trunk full of baggage with him. After remaining 
at the inn for several days the plaintiff paid his bill, except 
twenty-five cents, and left for a neighboring town, leaving 
his trunk, and stating to the innkeeper that he would return 
to his inn in three or four days. The plaintiff was engaged 
at the time in looking for a location in which to set up his 

1 Glenn v. Jackson, 93 Ala. 342, 9 So. 259, 12 L. R. A. 382 (1890); O'Brien 
V. VaiU, 22 Fla. 627, 1 So. 137, 1 Am. St. Rep. 219 (1886); Hays v. Turner, 
23 la. 214 (1867); Hoffman v. Roessle, 39 N. Y. Misc. 787, 81 N. Y. Supp. 
291 (1902); Wintermute v. Clarke, 5 Sandf. (N. Y.) 242 (1851); Whitemore 
V. Haroldson, 2 Lea (Tenn.), 312 (1879); McDaniels v. Robinson, 28 Vt. 
387, 67 Am. Dec. 720 (1856). 
[162] 



Chap. XIX.] Termination op Relation. [§ 232. 

trade. During his absence the trunk was given up to a stranger. 
After a few days the plaintiff returned to the inn and found 
his trunk gone; and he brought this action, charging the de- 
fendant as innkeeper. The court held that the defendant 
could not be charged as an innkeeper, because the relation of 
innkeeper and guest was terminated when the plaintiff left 
the inn. The court said that the law would not be the same 
if the property left behind had been a horse; citing to that 
effect Bacon's Abridgement, where indeed it was said that the 
innkeeper would continue hable, since he benefited by the 
continuance of the horse with him. Nor, the court continued, 
" would the rule be the same if the guest leaves, intending to, 
and actually should, return the same day; or if it appeared, 
that though absent, he was hable aU the while for his board." 
When the goods are left without the consent of the innkeeper 
he is not under the innkeeper's liability as to the goods; ^ and 
all the more clearly if a guest leaves the inn so as to put an 
end to the relation of host and guest without paying his bill, 
the innkeeper is not liable as such for goods left on the prem- 
ises, but is hable as gratuitous bailee.* 

§ 232. Responsibility during temporary absence of guest. 

One who is a guest at an inn may leave the inn for a time, 
and still leave his property under the safeguard of the land- 
lord's habihty.* So where the guest having registered goes out 

2Wintermute v. Clarke, 5 Sandf. (N. Y.) 242 (1851); Palin v. Reid, 10 
Ont. 63 (1885). 

3 Murray v. Marshall, 9 Col. 482, 13 Pac. 589, 59 Am. Rep. 152 (1886); 
Murray v. Clarke, 2 Daly (N. Y.), 102 (1866); Lawrence v. Howard, 1 Utah, 
142 (1874). 

< Brown Hotel Co. v. Burckhardt, 13 Col. App. 59, 56 Pac. 188 (1899); 
Hayes v. Turner, 23 la. 214 (1867); GrinneU v. Cook, 3 Hill (N. Y.), 490 
(1842); McDonald v. Edgerton, 5 Barb. (N. Y.) 560 (1849); Whitemore v. 
Haroldson, 2 Lea (Tenn.), 312 (1879); McDaniels v. Robinson, 26 Vt. 316, 
62 Am. Dec. 574 (1854); AUen v. Smith, 12 C. B. N. S. 638, 31 L. J. C. P. 
306, 9 Jur. N. S. 230, 6 L. T. 459, 10 W. R. 646, affirmed, 9 Jur. N. S. 1284, 
11 W. R. 440 (Eng. 1862); Day v. Bather, 2 H. & C. (Eng.) 14 (1863); 
McElwaine v. Bahnoral Hotel Co., Montreal L. R. 7 S. C. 139 (1891). 

[163] 



§ 232.] Innkeepers. [Chap. XIX. 

to view the town intending to return before night, the relation 
continues.^ 

While lapse of time is not conclusive on this point, yet if 
the guest's absence is to continue for a considerable time there 
is the less reason for regarding him as a guest in the interim. 
Indeed, in an old case, the court said that "one left goods in 
an inn and went about his business and returned on the same 
day, the innkeeper is answerable for the robbery of goods in 
the meantime; otherwise if he had not returned within three 
or four days. " " But this is not properly a proposition of law; 
the length of the guest's absence is important only as it is 
evidence bearing on the main question, namely, whether the 
relation of host and guest continues in the interim. 

The absence is the more likely to be regarded as temporary 
if the guest leaves behind him a horse or other property for 
the care of which he pays compensation. Thus, in the case 
of Day V. Bather, cited above, the plaintiff, who had become 
a guest at the defendant's inn, left the inn, saying that he 
should not be back until the following Monday, and requested 
that his mare might be properly attended to. He did not in 
fact return for about a fortnight. Meanwhile the hostler 
drove the mare out for exercise, and the mare became fright- 
ened, ran away, and received an injury. The plaintiff sued 
for damages for the injury. It was objected that the plain- 
tiff had ceased to be a guest. In answer to the objection 
Chief Baron Pollock asked, "When did the horse cease to be 
in the defendant's custody as an innkeeper?" and Baron Martin 
said, "We must infer that the relation of innkeeper and guest 
existed between the defendant and the plaintiff until some- 
thing was done to indicate the contrary." Baron Bramwell 
was a Uttle more careful in his form of statement. "It is 
said that, as a matter of law, the relation of innkeeper and 
guest ceased to exist at the time of the accident. I do not 

6 Hayes v. Turner, 23 la. 214 (1867); McDonald v. Edgerton, 5 Barb. 
(N. y.) 560 (1849); Gelley v. Clerk, Cro. Jac. (Eng.) 188 (1607). 
Sands' Case cited in Natbroke v. Griffith, F. Moore, 876 (Eng. 1603). 
[164] 



Chap. XIX.] Termination of Relation. [§ 233. 

assent to that. The judge might not have been wrong if he 
had found, as a matter of fact, that the appellant was not an 
innkeeper with reference to the respondent at that time, 
especially if this was the first time the respondent had been 
at the inn. But suppose that what occurred on this occasion 
had happened before, and that the respondent, after staying 
away for a longer time, had returned and paid for the horse, 
any objection that the relation of innkeeper and guest did not 
exist would be at an end." 

The effect of these opinions is evidently that an absence of 
several weeks does not necessarily interrupt the relation of 
host and guest where the guest has left a horse at the inn on 
which charges are constantly accruing in favor of the land- 
lord; but it is equally clear that if the guest had definitely 
left the inn the court would have considered the relation at 
an end, even if the horse had remained behind. 

§ 233- What is a merely temporary absence. 

In order to have- the relation continue during the absence 
of the guest, certain conditions must be fulfilled : 

1. There must be an animus revertendi.'' This intent must 
be known to the innkeeper. Thus, where a traveller took a 
room merely to dress in, dressed and left the inn, the inn- 
keeper would not be liable as such for goods left in the room, 
in spite of the secret intention of the guest to return and 
remain all night.* 

2. The intent must be to return within a definite and rea- 
sonable time.^ If, however, at the time he leaves the inn the 
guest intends to return within a certain reasonable time the 
relation of host and guest will continue although the return 
is accidentally delayed.^" 

7 AUen V. Smith, 12 C. B. N. S. 638, 31 L. J. C. P. 306, 9 Jur. N. S. 230, 
6 L. T. 459, 10 W. R. 646, affirmed, 9 Jur. N. S. 1284, 11 W. R. 440 (Eng. 
1862); McDaniels v. Robinson, 28 Vt. 387, 67 Am. Dec. 720 (1856). 

8 Lynar v. Mossup, 36 Up. Can. Q. B. 230 (1875). 

oWhitemore v. Haroldson, 2 Lea (Tenn.), 312 (1879); Day v. Bather, 2 
H. & C. (Eng.) 14 (1863). 

10 Day V. Bather, 2 H. & C. (Eng.) 14 (1863). 

[165] 



§ 234.] Innkeepers. [Chap. XIX. 

3. " The liability to compensate the innkeeper must continue 
during the absence." And so where a guest pays his bill and 
has his name checked off the register he ceases to be a guest, 
though he intends soon to return. ^^ Where, however, he pays 
his bill in order to cash a draft, and does not have his name 
checked off the register, but, on the contrary, it is understood 
that he intends to continue a guest during his absence, the re- 
lation continues.^^ 

"The right to charge is the criterion of the innkeeper's Ua- 
bility. When the liability of the guest to be charged as such 
ceases, his claim on the innkeeper as such expires, subject only 
to the right to hold him responsible for the baggage of the 
guest for such time as may be reasonable to effect a removal. " " 

If, therefore, it can be determined that the guest continues 
Uable for the innkeeper's charges during the interim, he is 
thereby shown to continue as a guest, since the relation and 
the hability to pay are concurrent. ^^ 

§ 234. Responsibility during reasonable time for removal. 

After a guest pays his bill and departs, leaving baggage with 
the innkeeper's consent, the innkeeper continues Uable as such 
during a reasonable time for the removal of the baggage.^* 
So, after the bill had been paid and while the guest's horse 
was being harnessed in order that he might drive away, the 
innkeeper continued Uable as such for the safety of the horse.*^ 
So where a traveller was told he could have a room only until 
an expected guest who had engaged it should arrive, and on 

11 Miller v. Peeples, 60 Miss. 819, 45 Am. Rep. 423 (1883). 

12 Hayes v. Turner, 23 la. 214 (1867). 

13 Brown Hotel Co. v. Burekhardt, 13 Col. App. 59, 56 Pac. 188 (1899). 
w Miller v. Peeples, 60 Miss. 819, 45 Am. Rep. 423 (1883). 

15 Hayes v. Turner, 23 la. 214 (1867); Miller v. Peeples, 60 Miss. 819, 45 
Am. Rep. 423 (1883). 

"Murray v. Marshall, 9 Col. 482, 13 Pac. 589, 59 Am. Rep. 152 (1886); 
Clark V. Ball, 62 Pac. 529 (Col. 1905); Adams v. Clem, 41 Ga. 65, 5 Am. 
Rep. 524 (1870); Maxwell v. Gerard, 84 Hun, 537, 32 N. Y. Supp. 849 
(1895); Baehr v. Downey, 133 Mich. 163, 94 N. W. 750 (1903). 

" Seymour v. Cook, 53 Barb. 451, 35 How. Pr. 180 (N. Y. 1868). 
[166] 



Chap. XIX.] Termination of Relation. [§ 235. 

these terms he took the room and put his goods in it, and when 
the expected guest arrived the innkeeper's servants put the 
goods in the corridor, where they were lost, it was held that 
the innkeeper's liability continued after the goods had been 
placed in the corridor.^* 

And where the innkeeper imdertakes to deliver the baggage 
at a steamboat or at a railroad station, the innkeeper's liability 
continues imtil it is so delivered.^' 

§ 235. Goods received after termination of relation. 

Where the goods are received by the innkeeper for the guest 
after the relation has terminated and the guest has left the inn, 
the innkeeper is not liable as such, but only as ordinary bailee ; ^° 
even though the innkeeper may previously have agreed with 
the guest to receive and forward the goods.^^ 

18 Medawar v. Grand Hotel Co. (1891), 2 Q. B. 11, 60 L. J. Q. B. 209, 64 
L.T. 851, 55 J. P. 614. 

"Sasseen v. Clark, 37 Ga. 242 (1867); GUes v. Fauntleroy, 13 Md. 126 
(1859); MaxweU v. Gerard, 84 Hun (N. Y.), 537, 32 N. Y. Supp. 849 (1895). 

20 Wear v. Gleason, 52 Ark. 364, 12 S. W. 756, 20 Am. St. Rep. 186 (1889); 
Baehr v. Downey, 133 Mich. 163, 94 N. W. 750, 10 Detroit Leg. N. 153 (1903). 

21 Baehr v. Downey, 133 Mich. 163, 94 N. W. 750, 10 Detroit Leg. N. 153 
(1903). 



[167] 



§ 241.] 



Innkeepers. 



[Chap. XX. 



TITLE lY. 

COMPENSATION AND LIEN OF THE INNKEEPER. 

CHAPTER XX. 

THE CHARGES OF THE INNKEEPER. 



§ 241. The innkeeper's charges must 
be reasonable. 

242. The amount of the charges 

may be fixed by statute. 

243. The innkeeper may fix rates. 

244. Payment may be required in 

advance. 

245. Compensation due as soon as 

relation is established. 



§ 246. Compensation teases when 
relation ends. 

247. For what services innkeeper 

is entitled to compensation. 

248. Entire obligation must be per- 

formed. , 

249. Which of several guests is 

liable to pay charges. 



§ 241. The innkeeper's charges must be reasonable. 

The innkeeper is not only obliged by law to receive all proper 
travellers for whom he has room, but he is obUged to entertain 
them for a reasonable compensation.^ The requirement that 
the compensation should be reasonable is a necessary corallary 
of the requirement that the guest should be received, for if it 
were open to the innkeeper to charge what he pleased he might 
exclude such appUcants as he did not care to entertain by the 
mere device of demanding from them an unreasonable payment. 
"They do not deal upon contracts as others do, they only 
make bills, in which they can't set unreasonable rates; if they 
do, they are indictable for extortion. " ^ 

The amount of the charge cannot easily be fixed by rule; 

1 Baldwin v. Webb, 121 Ga. 416, 49 S. E. 265 (1904); Roche v. Road 
Driver's Assoc, 96 N. Y. Supp. 205 (N. Y. 1905). 
' Eyre, J., in Newton v. Trigg, 1 Shower, 268 (1691). 

[168] 



Chap. XX.] Charges of the Innkeeper. [§ 242. 

nor is it usual to find the amount charged by an innkeeper 
disputed in court. The charge made by the innkeeper would, 
it seems, be upheld if it were not extravagant; "a person re- 
siding in a hotel cannot Uve as cheaply as at his own house. " ' 
To prove the reasonableness or otherwise of a charge for 
board, the price of board at a similar inn in the neighborhood 
at about the same time may be shown.* 

§ 242. The amount of the charges may be fixed by statute. 

In earlier times it was more common than it is to-day to 
fix by statute the compensation to which an iankeeper should 
be entitled; for instaijce, as early as the year 1349, in one of 
the sections of the Statute of Laborers,^ it was provided that 
the hostelers, that is innkeepers, or other sellers of victuals 
"shall be bound to sell the same victual for a reasonable price, 
having respect to the price that such victual be sold at in the 
places adjoining, so that the same sellers have moderate gains, 
and not excessive, reasonably to be required according to the 
distance of the place from whence the said victuals be carried. " 

And in the year 1623,* it was provided that "the hostelers 
or innholders shall sell their horse-bread, and their hay, oats, 
beans, peas, provender, and also all kind of victual both for 
man and beast, for reasonable gain, having respect to the 
prices for which they shall be sold in the markets adjoining, 
without taking anything for litter." 

In most of the American colonies the regulation of the price 
of entertainment in general appears not to have been fotmd 
necessary in earlier times. In the Massachusetts and Plymouth 
colonies, for instance,'' the price of ale and liquor was regulated, 
but not the price of food or other entertainment. Indeed, the 
Puritan colonists were rather more anxious to prevent than 

3 Lord Abinger, C. B., to the jury in Proctor v. Nicholson, 7 C. & P. 67 
(1835). 

4 Cross V. Wilkins, 43 N. H. 332 (1861). 
6 23 Ed. 3 c. 6. 

8 21 Jac. 1, c. 21. 

' Mass. Colonial Laws, 81; Plym. Col. Rec, Laws, 195. 

[169] 



§ 244.] Innkeepers. [Chap. XX. 

encourage miscellaneous travel, and they were interested to 
secure reasonable entertainment rather for themselves than 
for travellers who might be passing through. In some of the 
colonies, however, the price of entertainment in general was 
more carefully regulated. , 

The amount of an innkeeper's compensation is not now com- 
monly fixed by statute, though in some places power is given 
to a local governmental body, as, for instance, the local jus- 
tices, to fix rates,* and where this has been done, the iankeeper 
can recover no more than the rates so fixed.^ 

It is sometimes required by statute that the rates of board 
should be conspicuously posted in the inn; but where this is 
required, failure to post the rates will not prevent the innkeeper 
from recovering compensation, if in fact the guests remain at 
the inn to be entertained.^" 

§ 243. The innkeeper may fix rates. 

If no regulation of the innkeeper's charges is made by statute 
the innkeeper is entitled, himself, to frame a schedule of rates, 
provided such rates are reasonable ; or without having_framed 
a formal schedule he may in any individual case make a rea- 
sonable charge. This may be a customary rate, or in the ab- 
sence of a schedule of rates or any custom, it might be such 
amount as the innkeeper pleases to charge, subject to the pro- 
vision that it be not more than the entertainment is reason- 
ably worth. When once the rate of compensation has been 
fixed it continues until a new arrangement is made." 

§ 244. Payment may be required in advance. 

The innkeeper has a right if he chooses to demand payment 

8 Commonwealth v. Shortridge, 3 J. J. Marsh. (Ky.), 638 (1830). 

9 Banks v. Oden, 1 A. K. Marsh. (Ky.), 546 (1819). 

10 WliaUey v. Toddington, 36 Leg. Int. 136, 13 Phila. 2 (Pa.), (1879). 

11 This applies, of course, as well to the rates of a boarding-house keeper 
as to the rates of an innkeeper, and so where a boarder was given notice to 
quit, but afterwards was allowed to remain without further agreement, no 
change was effected in the rate of compensation, but it continued as it was 
before the notice of quittance was given. Shoemaker v. Beaver, 42 Leg. 
Int. (Pa.) 511 (1885). 

[170] 



Chap. XX.] Charges of the Innkeeper. [§ 245. 

in advance of his charges before he receives the guest.^^ This 
is of course a more awkward rule to utilize than the payment 
in advance in the case of the carrier, and yet it is quite clear 
that this is within the rights of the innkeeper. Whether the 
traveller apphes for a room or for board he could undoubtedly 
be required, as a condition of his reception, to pay in advance 
for entertainment which he intends to receive for a reasonable 
time; that he must pay for one night's lodging at the time of 
being received is quite clear./ Doubtless he could be compelled 
to pay his board for a day in advance if the inn were conducted 
on the "American plan, " but whether the umkeeper could de- 
mand payment for a longer period in advance than a single 
day is doubtful. A bill for entertainment at an inn accrues 
de die in diem,^^ and the day's charge would seem to be the unit 
of charge and the limit of the innkeeper's demand. 

§ 245. Compensation due as soon as relation is established. 

The right to receive compensation for his services accrues 
to the innkeeper at the moment of the reception of a guest, 
and indeed the creation of the relation of host and guest and 
the right to make a charge for services performed are neces- 
sarily coincident.^"*' From this it would follow that as soon as 
the guest signs the register and is received into the inn 'he is 
bound to pay some compensation, even though he receives no 
further entertainment than the mere right of remaining in a 
common room, the liability to pay compensation continues 
until the guest ceases to bear that character. If he tempo- 
rarily leaves the inn, intending to return and remaining mean- 
while a guest, the umkeeper is entitled to make reasonable 
charge, even though neither food nor lodging is meantime fur- 
nished him." 

12 MuUiner v. Florence, 3 Q. B. D. 484, 47 L. J. Q. B. 700, 38 L. T. 167, 
26 W. R. 385 (Eng. 1876); FeU v. Knight, 8 M. & W. 276 (1841). 

13 Doyle V. Walker, 26 Up. Can. Q. B. 502 (1867). 

I -*Hyiedawar v. Grand Hotel Co., (1891) 2 Q. B. 11, 60 L. J. Q. B. 209, 64 
L. T. 851, 55 J. P. 614. 
■w^Smith V. Keyes, 2 Thomp. & C. (N. Y.) 650 (1874). 

[ 171 ] 



§ 247.] Innkeepers. [Chap. XX. 

In an English case a traveller on applying for a room at an 
inn was told that the inn was full, but that he might occupy 
a room which would not be needed until night. He went to 
the room and dressed there. The court intimated that the 
innkeeper was entitled to compensation, Bowen, L. J., saying: 
"I think that, as soon as he had taken the plaintiff's luggage 
up to the room, and had placed it in the room, the innkeeper 
became entitled to charge the plaintiff for the use of the room, 
a charge which would be expanded or contracted, according 
as the plaintiff's occupation of the room was prolonged or 
not."i«- 

§ 246. Gompensation ceases when relatipii en^^ 

If the guest finally leaves the inn and ceases to be a guest 
the innkeeper's right to charge for his services as such comes 
to an end, although circumstances may exist which would give 
the innkeeper a right to compensation for services rendered. 
Thus, if upon leaving a guest desires that his room be reserved 
for him or for someone else whom he may send to the inn, he 
would be responsible for the rental value of the room.'*'" These 
services, however, are not innkeeper's services, and the amount 
of charge and methods of enforcing the charge would be gov- 
erned by the ordinary law of debtor and creditor, not by the 
law of innkeepers. 

§ 247- For what services innkeeper is entitled to compensation. 

The obligation of an innkeeper to his guest includes the ob- 
ligation to render without extra charge the usual and reason- , 
able personal attention to the health and comfort of the guest.^^' 
For extraordinary services, however, the innkeeper is entitled 
to make a special, additional charge ; for instance, if the guest 

16 Medawar v. Grand Hotel Co., (1891) 2 Q. B. 11, 60 L. J. Q. B. 209, 64 
L. T. 851, 55 J. P. 614. 

1' This was so held in the case of a lodging-house keeper, Sonneborn v. 
Steinan, 85 N. Y. Supp. 334 (1903), but it would doubtless be equally true 
in the case of an innkeeper. 

18 Kennard v. Hobson, 1 Houst. (Del.) 36 (1855). 
[172] 



Chap. XX.] Charges of the Innkeeper. [§ 249. 

is nursed by the innkeeper through a severe and protracted 
illness, compensation for the service as nurse is due the inn- 
keeper.^" 

§ 248- Entire obligation must be performed- 

The innkeeper must perform his entire obUgation before he 
is entitled to any compensation. For instance, if he under- 
takes to furnish room and board he can make no charge for 
the room, although he furnishes it, if in point of fact he does 
not supply the guest with the reasonable board.^" Where, 
however, there is a separate charge for separate articles of en- 
tertainment the innkeeper may be entitled to charge for some 
of the articles furnished, though he is not entitled to charge 
for others; for instance, if an innkeeper being unUcensed to 
sell hquor is unable to recover compensation for Uquor fur- 
nished, he may, nevertheless, recover such amoimt as he is 
legally entitled to charge for board.^^ 

§ 249. Which of several guests is liable to pay charges. 

Where a party of several persons dines together, and there 
is no agreement to give credit to any particular one, they are, 
it would seem, jointly hable for all the charges, not merely lia- 
ble each for his own share.^^ If, however, the host knew that 
one member of the party had invited the others to dine with 
him he could hold only the one who is entertaining his friends.^^ 
And where the party forms a family, the head of the family is 
the person liable for the whole charge and not the separate 
members of the family; thus, where a father went to an inn 
with his daughter, it was held that the daughter was not liable 
for her father's entertainment, nor it would seem for her own.^* 

19 Ibid. 

20 Wilson V. Martin, 1 Denio (N. Y.), 602 (1845). 

21 Chase v. Burkholder, 18 Pa. 48 (1851); Scattergood v. Waterman, 2 
Miles (Pa.), 32.3 (1839). 

22 Forster v. Taylor, 3 Camp. 49 (1811). 

23 So in 1 Rol. Abr., Action sur Case, 24, "As to the host both are liable 
to pay the reckoning, unless the host knew that Bhad been invited." 

21 Clayton v. Butterfield, 10 Rich. Law (S. C), 300 (1857). 

[173] 



§ 249.] Innkeepers. [ Chap. XX. 

And so where a husband and wife go to an inn together, the 
wife is not chargeable with any part of the bill, unless indeed 
it can be shown that the credit was extended to her and not 
to the husband.^* 

28 Bimey v. Wheaton, 2 How. Pr. N. S. (N. Y.) 519 (1885). 



[174] 



Chap. XXI.] The Innkeeper's Lien. 



[§251. 



CHAPTER XXI. 

THE innkeeper's LIEN. 



254. 



255. 



Topic I. Nature of the right 
to lien. 

251. Nature of innkeeper's lien. 

252. General rule. 

253. Lien does not require a bind- 

ing contract. 

Lien does not cover prior 
charges. 

Topic II. To what property 
the lien extends. 

Every kind of property sub- 
ject to lien for entire charge. 

256. Goods received in the inn sub- 

ject to lien, though the host 
might have excluded them. 

257. No lien on the person of the 

guest. 

258. No lien on goods which can- 

not be taken without viola- 
tion of law. 

259. Wearing apparel worn by 

guest. 

260. Property exempt from exe- 

cution. 

Topic III. Against whose 
property the lien exists. 

Goods of a third person 
brought by the guest to the 
inn. 

Knowledge of the innkeeper 
that the goods do not be- 
long to the guest. 



261. 



262. 



263. The rule in Georgia. 

264. Goods of a guest not respon- 

sible for charges. 

265. Statutory liens , hold only 

property of the guest. 
Topic IV, The beginning and 
continuance of the lien. 

266. Lien attaches when charges 

accrue. 

267. Sale of goods by owner does 

not affect lien. 

268. Removal of goods to another 

State does not affect lien. 

269. Care of goods held on hen. 
Topic V. End of the lien. 

270. Delivery of goods to the 

guest. 

271. Delivery induced by fraud. 

272. Delivery for temporary use. 

273. Giving payment. 

274. Attachment of goods by the 

innkeeper. 

275. Conversion of the goods. 
Topic VI. Enforcement of 

lien. 

276. Innkeeper's lien cannot be 

foreclosed by sale. 

277. Foreclosure in equity. 

278. Lien as a defence. 

279. Statutory methods of enforc- 

ing the lien. 



Topic I. Nature of the right to lien. 
§251. Nature of innkeeper's lien. 

The innkeeper, being obliged by law to receive travellers and 
entertain them, is given by law, not merely the right to com- 

[175] 



§ 252.] Innkeepers. [Chap. XXI. 

pensation from the guest, but also a hen on the goods of the 
guest in the inn, to the extent of his charges. This lien differs 
in one respect from other hens created by the common law in 
that technical possession on the part of the innkeeper is not 
necessary for the enforcement of the lien. Although the goods 
remain in the possession of the guest, the innkeeper may pre- 
vent their being carried from the inn, take them into his own 
actual possession, and hold them as security for his charges. 
In other respects this lien is in its nature and incidents like 
other liens given by the common law to persons carrying on 
a public employment, such as carriers and public warehouse- 
men. 

§ 252. General rule. 

By the common law an innkeeper is entitled to a lien for 
the amount of his charges on all the goods of his guest which 
are found in the inij.^ 

The charges which are secured by the lien include not merely 
compensation for entertainment, but also other charges con- 
nected with the guest's stay at the inn, as for money lent to 
the guest by the innkeeper.^ 

The lien is restricted to charges as between the iimkeeper 
and the one who is his guest in the strict sense. Thus, an inn- 
keeper at common law has no lien on the goods of a boarder,^ 

t Y. B. 5 Ed. 4, 2, pi. 20 (1465); Y. B. 21 Hen. 7, 14, pi. 19 (1505); Thomp- 
son V. Lacy, 3 B. & Aid. 283 (Eng. 1820); Proctor v. Nicholson, 7 C. & P. 
67 (Eng. 1835); Pollock v. Landis, 36 la. 651 (1873); Singer Mfg. Co. v. 
Miller, 52 Minn. 516, 55 N. W. 56 ri893); Hursh v. Byers, 29 Mo. 469 (1860); 
Ewart V. Stark, 8 Rich. L. (S. C.) 423 (1832); Dunlap v. Thorne, 1 Rich. L. 
(S. C.) 213 (1845). Carlisle v. Quattlebaum, 2 Bailey (S. C.) 4.52 (1831), 
contra, must be regarded as overruled. 

2 Proctor V. Nicholson, 7 Car. & P. 67 (Eng. 1835); Watson v. Cross, 2 
Duv. (Ky.) 147 (1865). 

3 Lamond v. Richards, (1897) 1 Q. B. 541, 66 L. J. Q. B. 315, 76 L. T. 141, 
45 W. R. 289, 61 J. P. 260; Pollock v. Landis, 36 la. 651 (1873); Reed v. 
Teneyck, 103 Ky. 65, 44 S. W. 356 (1898); Singer Mfg. Co. v. MUler, 52 
Minn. 516, 55 N. W. 56, 38 Am. St. Rep. 568, 21 L. R. A. 229 (1893); Hursh 
V. Byers, 29 Mo. 469 (1860); Ewart v. Stark, 8 Rich. L. (S. C.) 423 (1832); 
Neale v. Crocker, 8 Up. Can. C. P. 224 (1858). 

[176] 



Chap. XXI.] The Innkeepee's Lien. [ § 253. 

except of course by special agreement.* So an innkeeper tak- 
ing horses to board for one who is not a guest, has no lien at 
common law.^ Nor can one who merely keeps a lodging house 
and lets rooms have a hen.* But it has been held that an inn- 
keeper to whom a horse is committed to be doctored and cured 
has a hen for his charges, as a farrier/ and that he has a 
lien for his services on a horse sent to be trained.* 

§ 253. Lien does not require a binding contract- 

This hen is, properly speaking, not created by a contract, 
but by law; the innkeeper being obliged by law to receive, is 
given by law the lien. Consequently, by the better view, an 
innkeeper may maintain his hen even against a guest who is 
incapable of making a binding contract.^ "It was his legal 
duty to receive the appellee as a guest, and that being the case, 
the contract was, on his part, compulsory, and the law will not 
render such a contract on the other side either void or void- 
able, upon the simple ground of disability arising from in- 
fancy. ... It would be a legal absurdity to compel a 
man to make a contract, and at the same time permit the other 
party, who is the instrument of such compulsion, to avoid such 
contract."" 

* Regina v. Askin, 20 Up. Can Q. B. 626 (1861). 

B Smith V. Dearlove, 6 C. B. 132, 17 L. J. C. P. 219, 12 Jur. 377 (1848); 
Binns v. Pigot, 9 Car. & P. 208 (1840); Hickman v. Thomas, 16 Ala. 666 
(1849); Taylor v. Downey, 104 Mich. 532, 62 N. W. 716 (1895); Elliott v. 
Martin, 105 Mich. 506, 63 N. W. 525, 55 Am. St. Rep. 461 (1895); Grinnell 
V. Cook, 3 Hill (N. Y.), 485, 38 Am. Dec. 663 (1842); Dixon v. Dalby, 11 
Up. Can. Q. B. 79 (1852). 

6 Cochrane v. Sohryver, 12 Daly (N. Y.), 174 (1883). 

7 Danforth v. Pratt, 42 Me. 50 (1856). 

8 Bevan v. Waters, 3 Car. & P. 520 (Eng. 1828). 

9 Watson V. Cross, 2 Duv. (Ky.) 147 (1865) (infant). Contra, a dictum 
in Proctor v. Nicholson, 7 Car. & P. 440 (Eng 183S). 

10 Sampson, C. J., in Watson v. Cross, 2 Duv. (Ky.) 147 (1865). On the 
other hand. Lord Abinger, C. B., charging the jury in Proctor v. Nicholson, 
7 Car. & P. 67, 69 (Eng. 1835), said: "The landlord of an inn may supply 
whatever things the guest orders, and the guest is bound to pay for them, 
provided that the guest be possessed of his reason, and is not an infant. In 
either of these latter cases the landlord must look to himself." This was 

[177] 



§ 255.] Innkeepers. [Chap. XXI. 

§ 254. Lien does not cover prior charges- 

The innkeeper's lien is not a general lien, that is, it covers 
only charges accrued during the last period of entertainment. 
If the innkeeper once waives his lien by allowing the guest to 
depart and take away his goods without paying his bill, the 
charges then due can never afterwards be secured by a de- 
tainer of goods brought to the inn by the same guest on a sub- 
sequent occasion. This was estabUshed in the early case 
of Jones V. Thurloe." This was an action of trover against 
an innkeeper for detaining and converting the plaintiff's horse. 
The defendant pleaded that the plaintiff owed him money for 
horse-meat at several times, and that he detained the horse 
according to the custom for what was due. On demurrer the 
plea was held bad. The court said that if the innkeeper "give 
him credit for that time, and let him depart without payment, 
then he has waived the benefit of that custom by his own con- 
sent to the departure, and shall never afterwards . detain the 
horse for that expense. For this custom is founded on the 
hardship of the innkeeper's case to sue for every little debt, 
or on a greater hardship, that he may not know where to find 
him who was his guest after he is gone : therefore, when he has 
waived that privilege which the law gives him, he must rely 
on his other agreement." 

Topic II. To what property the lien extends. 
§ 255. Every kind of property subject to lien for entire charge. 

Generally speaking the hen extends to all property of every 
kind brought to the inn by the guest, or left at the inn for the 
guest, each article of property being security for the whole 
bill. There is one debt and one lien in respect of the whole 
of the innkeeper's charges. This proposition has almost never 
been questioned; it was, however, doubted and htigated in 

said obiter and without consideration, and must be regarded as unsound, 
unless the meaning is merely to restrict the innkeeper's claim in such a case 
to actual necessaries. See ante, §§ 64, 112. 
11 Jones V. Thurloe, 8 Mod. 172 (Eng. 1723). 
[178] 



Chap. XXI.] The Innkeeper's Lien. [ § 256. 

the case of Mulhner v. Florence.^^ In that case it appeared 
that a guest brought with him to the defendant's inn a pair 
of horses, wagonette and harness. The guest left the inn 
owing over one hundred pounds for his own entertainment 
and over twenty pounds for the keep of the horses. The 
horses belonged in fact to the plaintiff, who tendered the 
amount due for their keep and demanded that they be given 
up to him. The court held that he must pay the whole charge. 
The Lord Justice Bramwell said: "Was it a hen on the horses 
for the charges in respect of the horses, and on the carriage in 
respect of the charges of the carriage, and no lien on them for 
the guest's reasonable expenses, or was it a general lien on the 
horses and carriage and guest's goods conjointly for the whole 
amount of the defendant's claim as innkeeper ? I am of opin- 
ion that the latter was the true view as to his lien, and for this 
reason, that the debt in respect of which the lien was claimed 
was one debt, although that was made up of several items. 
An innkeeper may demand the expenses before he receives the 
guest, but if he does not, and takes him in and finds him in all 
things that the guest requires it is one contract, and the lien 
that he has is a hen in respect of the whole contract to pay 
for the things that, are supplied to him while he is a guest. 
If this was not the case a man might go to an hotel with his 
wife, and then it might be said that the innkeeper's Hen was 
on the guest's luggage for what he had consumed, and on the 
wife's luggage for what she had had. The contract was, 
that the guest and his horses and carriage shall be received 
and provided for; there was one contract, one debt, and one 
lien in respect of the whole of the charges." 

§256. Goods received in the inn subject to lien, though the host 
might have excluded them. 

There was a tendency in the Enghsh cases at one time to 

restrict the hen to such goods only as the innkeeper is com- 

12 3 Q. B. D. 484, 47 L. J. Q. B. 700, 38 L. T. 167, 26 W. R. 385 CEng. 
1877). 

[179] 



§ 257.] Innkeepers. [Chap. XXI. 

pelled to receive with his guests. Thus in Broadwood v. Gran- 
ara/^ Baron Parke said in the course of the argument: ^^ "The 
innkeeper has a hen on such goods only as he is compelled to 
receive with his guests. Could he be indicted for not receiv- 
ing a pianoforte? It might be a nuisance to persons in his 
house." And again, later, the same judge said: ^^ "The prin- 
ciple on which the innkeeper's lien depends is that he is bound 
to receive travellers and the goods which they bring with them 
to the inn. " This notion, however, was imsoimd, and has been 
abandoned. The lien secures not merely compensation for care 
extended to the very goods over which it is exercised, but com- 
pensation for charges incurred by the guest for his own enter- 
tainment. The innkeeper is bound to receive and entertain 
the guest; and if he chooses to receive with him goods he is 
not obliged to receive, his right in those goods, after he chooses 
to receive them, is the same as his right in any other goods 
of the guest. "They are. in the same position as goods prop- 
erly offered to the innkeeper according to the custom of the 
realm. " " 

§ 257. No lien on the person of the guest. 

The Uefi is restricted to the goods of the guest; his person 
cannot be detained as security for the charges. In the case 
of Sunbolf V. Alford " the plaintiff sued the defendant, an 
innkeeper, for assault and battery. The defendant pleaded 
that the plaintiff was a guest, and as such became indebted 
to the defendant, and would have left the inn without paying 
the debt, and for this cause the defendant detained him. 
The court held the plea insufficient. Lord Chief Baron Abinger 
said: "If an innkeeper has a right to detain the person of his 
guest for the non-payment of his bill, he has a right to detain 
him until the bill is paid, — which may be for life; so that this 

13 10 Exch. 417 (1854). 

" At page 420. 

16 At page 423. 

16 Lord Esher, M. R., in Robins v. Gray, (1895) 2 Q. B. 501. 

" 3 M. & W. 248, 1 H. & H. 13, 7 L. J. Ex. 60, 2 Jur. 110 (Eng. 1838). 

[180] 



Chap. XXI.] The Innkeeper's Lien. [ § 258. 

defence supposes that by the common law a man who owes a 
small debt, for which he could not be imprisoned by legal 
process, may yet be detained by an innkeeper for life. The 
proposition is monstrous. Again, if he have any right to 
detain the person, surely he is a judge in his own cause: for 
he is then the party to determine whether the amount of his 
bill is reasonable, and he must detain him till the man brings 
an action against him for false imprisonment, and then if it 
were determined that the charge was not reasonable, and it 
appeared that the party had made an offer of a reasonable 
sum, the detainer would be unlawful." He distinguished the 
case of lien on goods as an exception to the general law. The 
lien on goods is doubtless a survival of an ancient power of 
legally permitted self-help; but in modern times it is an ex- 
ceptional process, confined to certain classes of cases. This 
lien has never been extended at conmion law to any other class 
of property than tangible personal property; and there is not 
the slightest authority for extending it to the person of the 
debtor. 

§ 258. Xo lien on goods wMcli cannot be taken without violation of 
law. 
No lien exists if it would be impossible to exercise it without 
violating the law. Thus where horses, whether owned by an 
individual or the government, were employed in transporting 
the mails, the innkeeper could not hold the horses on lien in 
such a way as to interfere with the mail.^* District Judge Win- 
chester said on this point: "The law does not allow any 
justification of a wilful and voluntary act of obstruction to the 
passage of the mail. . . . Many exceptions might be in- 
troduced, and perhaps with propriety. For instance, a stolen 
horse found in the mail-stage. The owner cannot seize him. 
The driver being in debt, or even committing an offence, can 
only be arrested in such way as does not obstruct the passage 

18 United States v. Barney, Fed. Cas. No. 14,525, 3 Hughes, 645, 2 Wheeler 
C. C. 513 (1810) . But see United States v. McCracken, 3 Hughes, 544 (1878). 

[ 181 ] 



§ 261.] Innkeepers. [Chap. XXI. 

of the mail. These examples are as strong as any which are 
likely to occur, but even these are not excepted by the statute." 

§ 259. Wearing apparel worn by guest. 

For this reason no hen can be exercised over clothes actually 
on the person of the guest, since they could not be detained 
without a breach of the peace and the risk, at any rate, of in- 
decency."**-^ 

As Baron Parke said in the case cited: "There is, at all 
events, no power to do what this plea justifies — ^namely, to 
strip the guest of his clothes; for if there be, then, if the inn- 
keeper take the coat off his back, and that prove to be an 
insufficient pledge, he may go on and strip him naked, and 
would apply either to a male or to a female. That is a conse- 
quence so utterly absm-d that it cannot be entertained for a 
moment. "'^'^ 

§ 260. Property exempt from execution. 

This principle, however^ does not extend so far as to cover 
property exempt by law from execution ; and the hen may be 
exercised over such property. The privilege of exemption 
granted to a debtor does not prevent him from voluntarily 
giving another an interest in such property or subjecting it 
voluntarily to a hen, as the guest does by taking it with him 
to an inn.^^ 

§ 261. Goods of a tMrd person brought by tbe guest to the inn. 

Where a guest brings to an inn goods ostensibly his, the lien 
of the innkeeper attaches to the goods though they were in 
fact the goods of a third person.^^ 

., IS Tunbolf V. Alford, 3 M. & W. 248, 1 H. & H. 13, 7 L. J. Ex. 60, 2 Jur. 
110 (Eng. 18381 . 

^ 20 "The consequence of holding otherwise might be to subject parties to 
disgrace and duress, in order to compel them to pay a trifling debt, which 
after all was not due, and which the innkeeper had no pretence for demand- 
ing." BoUand, B., in the same case. 

21 Swan V. Bournes, 47 la. 501, 29 Am. Rep. 492 (1877). 

22 Johnson v. Hill, 3 Stark. 172, 23 Rev. Rep. 764 (1822); Snead v. Wat- 

[182] 



Chap. XXI.] The Innkeeper's Lien. [§ 261. 

This was finally determined after considerable difference of 
opinion by the court of King's Bench in 1616 in the case of 
Robinson v. Walter.^' In that case Dodderidge, J., said: "He 
is to receive all guests and horses that come to his inn. 
He is not bound to examine who is the true owner of the horse 
brought to his inn, he is bound as he is the innkeeper to receive 
them and therefore there is very great reason for him to retain 
him until he be satisfied for his meat that he has eaten, and 
the true owner cannot have him away until he has satisfied the 
innkeeper for his meat." And at the reargument the same 
judge said: "This is a fine trick for the plaintiff to have his 
horse kept and to give the innkeeper nothing for the same." 
Croke, J., said: "Here the innkeeper hath done no wrong at 
all; the owner is to satisfy him for his meat, because he was 
here compellable to receive him. " Some doubt was for a time 
thought to have been cast on this doctrine by the case of 
Broadwood v. Granara,^* but the Court of Appeal finally dis- 
pelled any doubt in the leading case of Robins v. Gray.^^ In 
that case a commercial traveller employed by a firm who dealt 
in sewing machines went to stay at an inn, and whilst there 
machines were sent to him by his employers in the ordinary 
course of business for the purpose of selling them to customers 
in the neighborhood. Before the goods were sent the innkeeper 

kins, 1 C. B. N. S. 267, 26 L. J. C. P. 57 (1857); TurriU v. Crawley, 13 Q. B. 
197, 18 L. J. Q. B. 155, 13 Jur.878, 13 J. P. 747 (1849); ThrefaU v. Borwick, 
L. R. 10 Q. B. 210, 44 L. J. Q. B. 87, 32 L. T. 32, 23 W. R. 312 a875); 
Robins v. Gray, (1895) 2 Q. B. 501; Black v. Brennan, 5 Dana (Ky.), 310 
(1837); R. L. Polk & Co. v. Melenbacker (Mich.), 99 N. W. 867, 11 Detroit 
Leg. N. 130 (1904); Singer Mfg. Co. v. Miller, 52 Minn. 516, 55 N. W. 56, 
38 Am. St. Rep. 568, 21 L. R. A. 229 (1893); Jones v. Morrill, 42 Barb. 623 
(N. Y. 1864); Waters v. Gerard, 94 N. Y. Supp. 702 (1905); Cook v. Kane, 
13 Ore. 482, 57 Am. Rep. 28, 11 Pac. 226 (1886); Singer Mfg. Co. v. Flanni- 
gan, 7 Pa. Co. Ct. Rep. 45 (1888); Alvord v. Davenport, 43 Vt. 30 (1870); 
Manning v. Hollenbeck, 27 Wis. 202 (1870); Goodyear v. Klemm, 5 Austral. 
Jur. 136 (1874); Hook v. Singer Mfg. Co., 11 Natal L. R. 301 (1890). CmUra 
Taylor v. O'Brien, Que. R. 24 Super. Ct. 407 (1903). 

23 3 Bulst. 269, 1 Roll. 449 n; Poph. 127 (Eng. 1616). 

24 10 Exch. 417 (Eng. 1854). 
26 [1895] 2 Q. B. 501. 

[183] 



§ 262.] Innkeepebs. [Chap. XXI. 

had express notice that they were the property of the employ- 
ers, but he received them as the baggage of the traveller, who 
subsequently left the inn without paying his board bill. It was 
held that the innkeeper had a lien on the machines for the 
amount of the bill. Lord Esher, Master of the Rolls, said: 
"I have no doubt about this case. I protest against being 
asked, upon some new discovery as to the law of innkeeper's 
lien, to disturb a well known and very large business carried 
on in this country for centuries. " Speaking of Broadwood v. 
Granara he said: "There the proposition that if a guest brings 
goods into an inn as his luggage they must be treated as if 
they were his goods was fully recognized. The judges held in 
that case that a piano, not brought to the inn by the guest as 
his luggage, but sent in by a tradesman for the guest to play 
upon during his stay at the iim, was not offered to, nor taken 
possession of by, the innkeeper under the custom of the realm 
as the luggage of the guest, and therefore that the piano was 
not subject to the innkeeper's lien. Whether we should have 
agreed with that decision is immaterial. The case was ex- 
pressly decided on the ground that the law of innkeepers did 
not apply. It is, therefore, no authority in the case now before 
us, where, as the learned judge in the court below has found, 
the goods were brought to the inn as the goods of the traveller 
and accepted as his goods by the innkeeper. " 

§ 262. Knowledge of the innkeeper that the goods do not belong to 
the guest. 
There is some authority for the proposition that if the inn- 
keeper knows that the guest has no title to the goods he brings 
to the inn, he can claim no lien on the goods.^^ This doctrine 
goes back to a charge of Lord Chief Justice Abbott to the jury 
at Nisi Prius in Johnson v. Hill.^^ This was an action of 

! 26 Johnson v. Hill, 3 Stark. 172 (Eng. 1822); Broadwood v. Granara, 10 
Exch. 417, 2-1 L. J. Ex. 1, 1 Jur. N. S. 19, 3 W. R. 25, 3 C. L. R. 177 (I riT. 
1854); Covington v. Newberger, 99 N. C. 523, 6 S. E. 205 (1888, er ■ 
Cook V. Kane, 13 Or. 482, 57 Am. Rep. 28, 11 Pac. 226 (1886, stmblc); x... jk 
V. Singer Mfg. Co., 11 Natal L. R. 301 (1890). 
27 3 Stark. 172, 174 (Eng. 1822). 
[184] 



Chap. XXI.] The Innkeeper's Lien. [§ 262. 

trover brought by the true owner of goods against an inn- 
keeper who had refused to deliver the goods on demand, as- 
serting a lien. The goods had been illegally seized, under color 
of legal process, and taken by the wrongdoer to the inn. The 
Lord Chief Justice charged the jury that "the question was, 
whether the defendant knew, at the time when the horse was 
deKvered into his custody, that Pritchard was not the owner 
of the property, but a mere wrongdoer; if he knew that fact, 
he made himself a party to the wrongful act of Pritchard, and 
could not insist on any recompense for keeping the horse. " 

This reason extends, therefore, only to a case where the pos- 
session of the guest is wrongftd, and is known to the innkeeper 
to be so; and to this extent the doctrine is undoubtedly cor- 
rect. The case of Broadwood v. Granara ^* was very different 
in its facts. The guest, a professional pianist, borrowed from 
the plaintiff a piano to practice upon wMle he stayed in the inn. 
The defendant, the innkeeper, knew all the facts at the time 
the piano was brought to the inn. The court denied the ex- 
istence of the hen, but principally on the ground that the piano 
was brought to the inn after the guest arrived, under a definite 
contract of bailment. Baron Alderson said: "The pianoforte 
was not brought to the inn by the guest, but was sent there 
by the plaintiffs, the defendant knowing that it was theirs; 
then how can it be said that the defendant received it as the 
goods of the guest?" Chief Baron Pollock said: "This is the 
case of goods, not brought to the inn by a traveller as his goods, 
either upon his coming to or whilst staying at the inn, but they 
are goods furnished for his temporary use by a third person, 
and known by the innkeeper to belong to that person." 

The real reason for denjdng a lien in this case seems to be 
the definite bailment relation between the owner and the guest, 
known to the innkeeper. If the goods had been rented to the 
guest for six months, the innkeeper could probably have main- 
tained his lien during the six months; here they were dehv- 
ered for a period determinable at the will of the bailor, and 

28 10 Exch. 417, supra. 

[1851 



§ 262.] Innkeepers. [Chap. XXI. 

the guest would be guilty of trover if he detained them after 
demand, and in the language of Johnson v. Hill ^^ the defend- 
ant made himself a party to the conversion by detaining them 
after such demand. This point is brought out by the Lord 
Justice Kay in Robins v. Gray.'" Speaking of Broadwood v. 
Granara, he said: "An analogous case to that was put by the 
Master of the Rolls during the argument of the present case. 
Suppose a jeweller in the town sent, with the knowledge of the 
innkeeper, certain jewels to a guest at the inn on approval, 
and allowed them to remain in the inn for some days — could 
the innkeeper claim and enforce a lien upon those jewels? I 
should think he could not, because they were sent for a special 
temporary purpose, and the innkeeper knew it; they were, 
therefore, not sent as the goods — I do not mean as the prop- 
erty — of the guest; they were not goods which he was likely 
to take about with him as his luggage." 

Suppose, however, the goods are brought to the inn right- 
fully by the guest, under an arrangement by which he is en- 
titled to hold them indefinitely; or suppose the guest brings 
them in pursuance of an agreement by which he is using them 
according to the owner's desire; in such a case the innkeeper 
should have a right to the hen even though he is aware that 
the guest is not the legal owner of the goods. So if the guest 
is to the knowledge of the innkeeper a servant or agent, em- 
ployed by the owner to deal with the goods he brings to the 
inn, the lien may be enforced on the goods against the master.'^ 
Lord Esher, Master of the Rolls, said in Robins v. Gray: '^ 
"I am of opinion that an innkeeper is bound to take in goods 
with which a person who comes to an inn is travelling as his 
goods, unless they are of an exceptional character; that the 

2» 3 Stark. 172(1822). 

30 [1895] 2 Q. B. 501. 

31 Robins v. Gray (1895), 2 Q. B. 601, 65 L. ,T. Q. B. 44, 14 Rep. 671, 73 
L. T. 252, 44 W. R. 1, 59 J. P. 741. And see Snead v. Watkins, 1 C. B. N. 
S. 267, 26 L. J. C. P. 57, 21 J. P. 263 (Eng. 1857); Fogarty v. Dion, 6 Quebec 
L. R. 163 (1880). 

32 Supra. 

[186] 



Chap. XXI.] The Innkeeper's Lien. [ § 265. 

innkeeper's lien attaches, and that the question of whose prop- 
erty the goods are, or of the innkeeper's knowledge as to whose 
property they are, is immaterial. " The best rule, that involved 
in this decision, appears to be that knowledge of the innkeeper 
that the goods are owned by a third party is immaterial in a 
case where the owner bails them to the guest to take in the 
ordinary way to the inn Uke his own goods. 

§ 263. The rule in Georgia. 

In Georgia it is held that no lien can be exercised over goods 
of one not a guest except for charges on the specific article on 
which the lien is claimed.'^ But this doctrine appears to be 
confined to that State. 

§ 264- Goods of guest not responsible for charges- 

Where several people go together to an inn, but one of them 
only is responsible for pa3dng the bill, only property which is 
really or ostensibly the property of the responsible party can 
be held on hen for the charges. Thus where a father and his 
daughter went to an inn, under such circumstances that the 
father alone was responsible for the bill, the host could not 
hold the daughter's goods as security for the payment of the 
bill.** And so where a husband and wife go together to an 
inn, the credit being extended to the husband, there is no hen 
on property evidently belonging to the wife,*^ though if the 
credit were extended to the wife her goods could be held, and 
not the husband's.*^ Where the wife goes alone to the inn, 
but the husband is hable, the wife's goods cannot be held." 

§ 265- Statutory liens hold only property of the guest. 

Where the hen is given by statute it is usually hmited to the 

33 Domestic Sewing Machine Co. v. Waiters, 50 Ga. 573 (1874). 

3* Clayton v. Butterfield, 10 Rich. Law (S. C), 300 (1857). In this case 
the daughter tendered the amount of the charges incurred on her account; 
if she had not tendered this, the lien would not have been valid, as it seems, 
even to that extent, since she owed no debt. 

35 Birney v. Wheaton, 2 How. Pr. N. S. (N. Y.) 519 (1885); Mcllvane v. 
Hilton, 7 Hun (N. Y.), 594 (1876: a case of a boarding-house keeper's lien). 

36 Bimey v. Wheaton, 2 How. Pr. N. S. (N. Y.) 519 (1885). 

37 Baker v. Stratton, 52 N. J. Law, 277, 19 Atl. 661 (1890). 

[187] 



§266.] Innkeepers. [Chap. XXI. 

property of the guest; the hen cannot be exercised upon prop- 
erty of a third person, even if it was brought to the house by 
the guest as his own property. 

This is generally held even in case of a statutory innkeeper's 
lien, though the statute was apparently not intended to change 
the provisions of the common law.^* A fortiori a statute which 
extends to boarding-house keepers or lodging-house keepers a 
hen on the goods of the boarder or lodger does not create a 
hen on the goods of a third person in the hands of the boarder 
or lodger, even if they are ostensibly the property of the boarder 
or lodger.^" And so the statutory lien of the Uvery-stable 
keeper can be exercised only against the person to whom he 
extended credit.^" 

Topic IV. The Beginning and Continuance of Lien. 

§ 266. Lien attaches when charges accrue. 

The lien attaches as soon as the charge is incurred, that is, 
as soon as the guest is received, even if the time for payment 
has not arrived. So in a Massachusetts case it appeared that 
the defendant was a boarder at the plaintiff's house, paying 
his board by the week at the end of the week. A week's board 
would be due on Satvirday night; on Saturday morning the 
defendant undertook, against the will of the plaintiff, and with- 

38Wyckoff V. Southern Hotel Co., 24 Mo. App. 382 (1887); McClain v. 
Williams, 11 S. D. 227, 76 N. W. 930, 74 Am. St. Rep. 791, 49 L. R. A. 
610 (1898); Torrey v. McClellan, 17 Tex. Civ. App. 371, 43 S. W. 64 (1897). 
In Iowa the statute expressly provides for a lien on property "belonging to 
or under control of" the guest; and this obviously covers property of a third 
person brought to the inn by a guest. Brown Shoe Co. v. Hunt, 103 la. 
586, 72N. W..765 (1897). 

39 MiUs V. Shirley, 110 Mass. 158 (1872); Misch v. O'Hara, 9 Daly (N. Y.), 
361 (1880); Barnett v. Walker, 39 N. Y. Misc. 323, 79 N. Y. Supp. 859 
(1902). But see a different holding under the earlier form of the statute. 
Jones v. Morrill, 52 Barb. 623 (1864); Newcombe v. Anderson, 11 Ont. 665 
(1886). 

« Gump V. Showalter, 43 Pa. 507 (1862); McManigle v. Grouse, 1 Walker 
(Pa.), 43 (1887). 
[188] 



Chap. XXI.] The Innkeeper's Lien. [§ 267. 

out paying anything for board during the week, to remove his 
baggage; and upon the plaintiff interfering, he forcibly re- 
moved her from the room. The plaintiff brought an action 
for assault and battery, and the defendant set up in defence 
his right to remove his property. The Supreme Court, how- 
ever, held that the lien existed, and the plaintiff could recover. 
Mr. Justice Morton said: "Otherwise, a guest who had ob- 
tained credit upon the strength of the lien might destroy the 
security ... by a sale or by removing the goods at any 
time before the bill for board became payable by the contract; 
a result which is inconsistent with the nature of the lien." ^^ 

§ 267- Sale of goods by owner does not affect lien. 

A sale of the property by the guest to a third person does 
not terminate the lien; the innkeeper may retain the goods 
against the purchaser for all charges accrued (even after the 
sale) until notice of the sale is received by the mnkeeper. 
So in a Massachusetts case it appeared that a/boarder brought 
property to the plaintiff's boarding house m which he was 
boarding; after a time he sold the property to a third person. 
He paid his board up to the time of the sale, but afterwards 
remained, retaining possession of the goods, and contracted 
a debt for board. The housekeeper had no notice of the sale. 
The defendant, a sheriff, took the goods on a writ against the 
purchaser, and the plaintiff brought suit for conversion. It 
was held that the plaintiff had a lien.'*^ Mr. Justice Hoar said: 
"The plaintiff had no notice of the sale; and we think that, 
within the meaning of the statute, she had a right to continue 
to furnish board, on the security of the lien, until such notice 
was given, if the property remained in the house. Otherwise, 
a boarder, who had obtained credit on the strength of the lien 
which the law gave upon his property, might deprive the 

« Smith V. Colcord, 115 Mass. 70 (1874). This was the case of a statu- 
tory boarding-house keeper's lien; but the reasoning would equally apply to 
the common-law lien of an innkeeper. 

« Bayley v. Merrill, 10 All. (Mass.) 360 (1865). 

[189] 



§ 269.] Innkeepebs. [Chap. XXI. 

boarding-house keeper of the security by an immediate sale. 
The statute creates the pledge of the property, when the owner 
brings it, for whatever may be due while he stays." Though 
this "^as the case of a statutory hen, the principle involved is 
obviously apphcable to the common-law lien of the innkeeper. 
Indeed, it would naturally follow, in the case of the innkeeper, 
from the well-estabhshed doctrine that the hen holds goods 
even of a third party brought to the inn as goods of the guest. 

§ 268. Removal of goods to another State does not affect lien. 

The hen is not lost by taking the goods into another State, 
even if no such hen would be created by the law of the latter 
State; for the hen once having attached to the goods remains, 
wherever they may be taken by the innkeeper. In a New 
Hampshire case the facts were thayone S. in Massachusetts 
held a trunk belonging to plaintiff's son under a hen for board; 
and at plaintiff's request she sent the trunk to him, in New 
Hampshire, by the defendant express company, C. 0. D. 
The plaintiff tendered the charges for carriage only, and de- 
manded the trunk; and upon the defendant refusing to give 
it up he brought this action of replevin. The Supreme Court 
gave judgment for the defendant.*' Mr. Justice Stanley said: 
"In this case, there is an attempt to divest S. of her hen, and 
there is no reason why she may not defend her title as well 
as if she were the absolute owner residing in Massachusetts 
and a suit were brought to take the property from her. The 
hen of S. was as perfect as the hen under a mortgage made and 
executed in Massachusetts in accordance with their laws 
would be. In such cases the title imder the mortgage could 
be shown, and would be a defence." (Tn 

§ 269. Care of goods held on lien. 

An innkeeper holding goods on hen is bound to take due care 
of the goods, which is said to be the care which he takes of his 
own goods of a similar description. So where an innkeeper 

<3 Jaquith v. American Express Co., 60 N. H. 61 (1880). 
[190] 



Chap. XXL] The Innkeeper's Lien. [§ 269. 

who was holding clothing and furs on a lien, put them into a 
closet with similar goods of his own, and they were injured 
by moths and mice, it was held that that amount of negli- 
gence which would make an innkeeper hable had not been 
shown.^^ He may make reasonable use of the goods if such 
use is beneficial to the owner, as, for instance, in the case of Uve 
animals; but in that case he is bound to account for the value 
of the use. This question. was discussed in a Vermont case.** 
An innkeeper while holding a horse on hen learned that the 
horse really belonged not to the guest but to someone from 
whom it had been stolen; and imder these circumstances he 
made use of the horse. The court held this action proper un- 
der the circumstances. The right of the bailee to use the 
property, the court said, depended, in the absence of express 
agreement, upon the circumstances. Thus, if the use would 
be for the benefit of the property the consent of the owner 
might fairly be presumed, but not if it would be injurious or 
perilous; while if the use would be indifferent, other circum- 
stances might determine it. "It is generally not only the 
right, but the duty, of the bailee to use the property so far as 
necessary to its preservation. To this extent the assent of 
thfe owner may be presumed — as in case of the milking of a 
milch cow; and in case of a horse, exercise and moderate use 
to the extent necessary to the health and vigor of the animal. 
Again, it is laid down by the elementary writers that the right 
to use the property may depend on whether it is property of 
a nature that requires expense to keep it; and if so, the bailee 
may use it reasonably to compensate him for the charge of 
keeping." Under the circumstances of this case it was rea- 
sonable to use the horse. The innkeeper did not know the 
owner, nor had he any reason to suppose that the owner would 
appear. Even though his hen was good against the owner, 
still he might hold the horse until it died without being paid, 

« Angus V. McLachlan, 23 Ch. D. 330, 52 L. J. Ch. 587, 48 L. T. 863, 31 
W. R. 641 (Eng. 1889). 

« Alvord V. Davenport, 43 Vt. 30 (1870). 

[191] 



§ 272.] Innkeepers. [Chap. XXI. 

and then his only security for payment would be gone. "Un- 
der such circumstances, the defendant had a right to use the 
property moderately and prudently, to the extent of com- 
pensating him for his charges, in the manner that the case 
shows he did use it. AVhether the actual assent of the plaintiff 
in the meantime is presumed or not, it is fairly to be presumed 
that if the plaintiff had known the facts he would have as- 
sented. The use of the property has manifestly benefited 
the plaintiff, for, but for that, the expense of keeping for the 
four years would probably have exhausted the whole prop- 
erty." 

The value of the use must, however, be credited on the lien. 
"The defendant, having lawfully used the property, must ac- 
count for the use upon his charges for trouble and expense of 
keeping the property; and the court having found that it is 
a full equivalent, the defendant had no hen upon the property." 

Topic V. End of Lien. 

§ 270. Delivery of goods to the guest. 

The hen is at an end when the innkeeper voluntarily delivers 
the goods to the guest.^^ But a mere executory agreement to 
give up the goods, made without consideration, does not put 
an end to the Uen.^'' 

§ 271. Delivery induced by fraud. 

If the innkeeper is induced to give up the goods by fraud, 
the hen continues in spite of the dehvery, or rather the inn- 
keeper has the right to renew it; he may recover the goods by 
legal process, or otherwise, and the lien will again attach to 
them.^8 

§ 272. Delivery for temporary use. 
The innkeeper may allow the guest to take the goods tem- 

" Jones V. Thurloe, 8 Mod. 172 (Eng. 1723); Danforth v. Pratt, 42 Me. 
50 (1856); Grinnell v. Cook, 3 HiU (N. Y.), 486 (1842). 
« Danforth v. Pratt, 42 Me. 50 (1856). 
48 Manning v. Hollenbeck, 27 Wis. 202 (1870). 
[192] 



Chap. XXI.] The Innkeeper's Lien. [§ 274. 

porarily without parting with his lien; as, for instance, where 
a horse is put up at an inn and the guest drives it out from 
time to time, the innkeeper does not lose his lien.^* 

In such a case the better view appears to be that the lien 
continues even during the temporary possession of the guest. 
A creditor attached the horse of a guest at an inn while the 
guest was driving the horse in the neighborhood of the inn; 
the innkeeper's hen was held to have priority over the attach- 
ment.^" But the opposite opinion has also been held.*^ 

§ 273. Giving payment- 

The lien is of course destroyed by payment of the debt. 
And so where the innkeeper owes the guest for labor more than 
the guest owes for food, and the guest has a right to set off 
the amount due him against his debt, there is no lien.^^ But 
a mere agreement to accept security for the bill if it is not 
inconsistent with the lien, does not put an end to it.^' 

§ 274- Attachment of goods by the innkeeper. 

The hen is not destroyed by the innkeeper attaching the 
goods held by him on hen in an action to recover his charges. 
So far from being a waiver of his security, this is an attempt 
to obtain additional secmity. The innkeeper, Uke any other 
creditor, may attach subject to the hen. This question was 
fuUy discussed in a suit in West Virginia '^ upon a statutory 

« AUen V. Smith, 12 C. B. N. S. 638, 31 L. J. C. P. 306, 9 Jur. N. S. 230, 
6 L. T. 459, 10 W. R. 646; affirmed, 9 Jur. N. S. 1284, 11 W. R. 440 (Eng. 
1862); Huffman v. Walterhouse, 19 Ont. 186 (1890). 

60 CaldweU v. Tutt, 10 Lea (Temi.), 258, 43 Am. Rep. 307 (1882). 

61 Crabtree v. Griffith, 22 Up. Can. Q. B. 573 (1863). And see Grinnell v. 
Cook, 3 HiU (N. Y.), 486 (1842). 

62 Hamlin v. Walters, 3 Col. App. 519, 34 Pac. 686 (1893). 

63 Angus V. McLachlan, 23 Ch. D. 330, 52 L. J. Ch. 587, 48 L. T. 863, 31 
W. R. 641 (Eng. 1889). 

54 Lambert v. Niklass, 45 W. Va. 527, 31 S. E. 951, 44 L. R. A. 561 (1898). 
See contra, however, Jacobs v. Latour, 5 Bing. 130 (Eng. 1828), where the 
lien of a horse trainer was held lost when he caused the horse to be taken in 
execution at his own suit; the court saying in explanation that "in order to 
sell, the sheriff must have had possession." 

13 [ 193 ] 



§ 275.] Innkeepers. [Chap. XXI. 

stable-keeper's lien. The argument against the continuance 
of the lien was based on two grounds : First, that the lien was 
destroyed by the judgment; second, that the possession taken 
by the sheriff necessarily put an end to the lien, since that de- 
pended on maintaining possession. To the first point the 
court replied that the debt is one thing and the lien another; 
and though the debt is merged in the judgment the lien con- 
tinues and secures the judgment. On the second point the 
court said that the only method of enforcing the lien provided 
by the common law is by judicial process; and this seems to be 
a reasonable process. "He is not thus waiving, but enforcing 
his hen. Why it should be said that, when the officer levies 
on the property to enforce this hen the innkeeper loses his 
lien because he gives up possession, I cannot see. The officer 
is his agent for this purpose. To say so is technical in the 
highest degree, and defeats justice. The innkeeper is not sur- 
rendering possession to the owner, nor to an officer acting in 
furtherance of his demand. He could bring a suit, as shown 
above, without forfeiting his Hen; and by resorting to an 
attachment he simply availed himself of a fact giving him 
the right to attachment to enforce a debt for which there was 
a lien, using a cumulative remedy." 

§ 275. Conversion of the goods. 

Conversion of the goods or wrongful dealing with them by 
the innkeeper while he holds them on Hen puts an end to the 
Hen. Thus, if the innkeeper refuses to give up the goods 
upon a good tender of the amount due, he is guilty of a con- 
version; but not where the tender is not a good one.^^ In 
England, the effect is not only to destroy the Hen, but also to' 
make the innkeeper Hable for the entire value of the goods, 
without deducting his charges.^" In the United States, how- 
ever, though the Hen is lost the innkeeper may deduct the 

55 Gordon v. Cox, 7 Car. & P. 172 (Eng. 1835). 

56 MuUiner v. Florence, 3 Q. B. D. 484, 47 L. J. Q. B. 700, 38 L. T. 167, 
26 W. R. 385 (1876). 

[194] 



Chap. XXL] The Innkeeper's Lien. [§ 277. 

amount of his charges from the value of the goods." The 
fact that the innkeeper claims a hen for a greater amoimt than 
he has a right to do does not destroy his lien for the rightful 
amount, provided he does not convert the goods by refusing 
a tender of the correct amount.^* 

Topic VI. Enforcement of Lien. 
§ 276. Innkeeper's lien cannot be foreclosed by sale. 

An innkeeper holding goods on hen cannot sell the goods 
without legal process to reimburse himself, even though the 
care and keeping of the goods necessitates expense. ^^ Nor can 
he pledge the goods.®" 

By the custom of London an innkeeper was entitled to sell 
a horse held on hen as soon as the horse had eaten his value; 
but this was a local custom, and never formed part of the law 
of England." 

§ 277- Foreclosure in equity. 
The proper method of enforcing the hen, in the absence of 

57 This appears not to have been the subject of judicial decision in the case 
of an innkeeper's Uen, but it is well settled in the case of similar liens. 
1 Sedg. Dams. § 80. 

58 Allen V. Smith, 12 C. B. N. S. 638, 31 L. J. C. P. 306, 9 Jur. N. S. 230, 
6 L. T. 459, 10 W. R. 646; affirmed, 9 Jur. N. S. 1284, 11 W. R. 440 (Eng. 
1862). 

M Westbrook v. Griffith, F. Moore, 876 (Eng. 1608); MuUiner v. Florence, 
3 Q. B. D. 484, 47 L. J. Q. B. 700, 38 L.T. 167, 26 W. R. 385 (Eng. 1876), 
Case V. Fogg, 46 Mo. 44 (1870); Fox v. McGregor, 11 Barb. (N. Y.) 41 (1851); 
GUdea v. Earle, 2 City Ct. R. (N. Y.) 122 (1885). 

60 People V. Husband, 36 Mich. 306 (1877). 

81 Rosse V. Bramstead, 2 Roll. Rep. 438 (Eng. 1623); Warbrooke v. Grif- 
fin, 2 Brownl. & Gold. 254 (Eng. 1609). "If one brings a horse to an inn, 
leaves him there and goes his way, and the horse eats up more than his price, 
by the custom of London the innkeeper may sell this horse to pay himself, 
but not if the debt was for other horses, as if one do bring many horses into 
an inn, and afterwards takes all of them away but one, the innkeeper cannot 
sell this one horse for payment of that which was due to him for the other 
horses, by the custom of London, notwithstanding the debt doth amount to 
more than the price of this horse; but every horse is to be sold, by the cus- 
tom, to satisfy the debt due for his own meat only." Mosse v. Townsend, 
1 Bulst. 207 (Eng. 1612). 

[195] 



§ 279.] Innkeepers. [Chap. XXI. 

statute, is by a bill in equity to foreclose the lien; and on such 
a bill the court may order the sale of the goods.®^ If, however, 
there is an adequate remedy provided by statute the bill in 
equity will not lie.°* 

§ 278. Lien as a defence. 

The hen may be set up at conmion law in defence; as, for 
instance, where an action is brought by the owner for convert- 
ing the goods by refusing to allow the owner to take them from 
the inn.^* The lien may also be set up in an answer to a suit 
in replevin brought by the owner to obtain possession of 
his goods.^* 

§ 279. Statutory methods of enforcing the lien. 

Statutory methods of enforcing the lien are provided in 
some States.®* 

62 Black V. Brennan, 5 Dana (Ky.), 310 (1837); Fox v. McGregor, 11 Barb. 
(N. Y.) 41 (1851); Gildea v. Earle, 2 City Ct. Rep. (N. Y.) 122 (1885). 

63 Goates v. Acheson, 23 Mo. App. 255 (1886). 

64 Proctor V. Nicholson, 7 Car. & P. 67 (Eng. 1835). 

65 Pollock V. Landis, 36 la. 651 (1873). 

66 Connecticut. The statute permits sale to foreclose the lien in certain 
cases; there being no requirement in the statute for notice to the owner of 
the sale, such notice need not be given. Brooks v. Harrison, 41 Conn. 184 
(1874). Missouri. A judgment for the debt is a prerequisite to enforcing 
the lien. Goates v. Acheson, 23 Mo. App. 255 (1886). And though a ease 
is not made out for enforcing the lien, judgment may be given for the amount 
of debt proved. Hods v. Benecke, 11 Mo. App. 393 (1882). Though the 
statutory method of enforcement, by sale, does not aptly apply to a lien on 
wages, yet the enforcement must be according to the statute; the lien can- 
not be enforced by garnishment. Hods v. Benecke, 11 Mo. App. 393 (1882). 



[196] 



Chap. XXII.] Action AGAINST Innkbepeh. ' [§281. 



TITLE y. 

REMEDIES AGAINST INNKEEPER. 

CHAPTER XXII. 

ACTION AGAINST INNKEEPER. 



281. Nature of action. 

282. Form of action. 

283. The declaration. 



§ 284. Survival of action. 
285. Who may sue. 



§281. Nature of action. 

An action against an innkeeper for injury to a guest or his 
goods is in its essence an action for breach of his undertaking 
at the time he accepted the guest; an undertaking growing out 
of his consent to receive the guest, but not properly a contract, 
since the terms of the imdertaking are fixed by law, and not 
by agreement of the parties. An action against an innkeeper 
for refusal to perform his public duty is still more clearly for 
breach of an undertaking imposed by law, and not growing 
out of an agreement by the parties. 

This kind of action was one well known in earlier times; it 
was an action on the case upon the super se assumpsit. As 
Lord Holt said in Coggs v. Bernard,^ explaining the difference 
between such an action and one for the breach of an executory , 
contract, " assumpsit does not only signify a future agreement, 
but in such a case as this it signifies an actual entry upon the 
thing, and taking the trust upon himself." Actions on the 
case induced by an assumpsit included, therefore, both actions 
for breach of a contract made on good consideration, and ac- 

» 2 Ld. Raym. 909 (1703). 

[197] 



§ 282.] Innkeepers. [Chap. XXII. 

tions for breach of a non- contractual undertaking upon per- 
formance of which the defendant had entered.^ 

When those actions in which the assuihpsit was of a present 
trust were differentiated from those in which it was executory, 
the former would properly have united with the old action of 
detinue, founded on bailment, to make up the grand division 
of undertakings, just as the latter did in fact unite with actions 
of debt and covenant to form the grand division of actions 
sounding in contract. But no separate division of acts based 
on undertaking was ever formed. Bailments were, after a 
struggle, included with contracts; and other undertakings, not 
being of sufficient importance to form a separate division of 
actions, either followed bailments, or with other actions on the 
case sank back into the division of torts. In most cases this 
fact is marked by the singular doctrine that a breach of an 
undertaking like that of a carrier or innkeeper to a particular 
person may be redressed by an action sounding in tort or by 
one sounding in contract, at the plaintiff's option. This op- 
tion, however, does not extend to the case where the person 
who has undertaken a pubHc employment refuses to exercise 
his employment for the benefit of a person having a right to 
demand it. For such a breach of obhgation the remedy is in 
tort only. 

§ 282. Form of action. 

For refusal to receive a traveller as a guest, therefore, re- 
dress against the innkeeper must be had by the injured party 
in an action on the case sounding in tort.^ For injury to the 
person or property, the action may be either assumpsit for 
breach of the "implied contract,"* or, as is more usual, an ac- 

2 Such an action is distinguished from a tort in Y. B. 43 Edw. 3, 33, pi. 38 
(1368); from a contractual action in Y. B. 11 Hen. 4, 33, pi. 60 (1410); Y. B. 
2 Hen. 4, 3, pi. 9 (1400). 

3 Anonymous, Godbolt, 345, pi. 440 (1623); Rex v. Collins, Pahner, 373 
(1623). 

■1 Clancy v. Barker, (Neb.), 98 N. W. 440 (1904); Morgan v. Ravey, 6 
H. & N. (Eng.) 265 (1861). 

[198] 



Chap. XXII.] Action against Innkeeper. [§ 284. 

tion on the case.' Even for entu-e destruction or loss of the 
goods, the innkeeper is not liable in trover, unless an actual 
conversion is shown.® 

§ 283. The declaration. 

The declaration against the innkeeper need not set out the 
customary hability of innkeepers, since that is part of the law 
of the land,'' but it must allege the defendant to be an inn- 
keeper,* and must state the existence of the relation of host 
and guest between the parties at the time of the injury.* 

§ 284. Survival of action. 

An action against the innkeeper for personal injury will not 
survive against the executors of the innkeeper, since the injury 
is a merely personal one; '" while an action for injury to the 
guest's property wiU survive both against the innkeeper and 
in favor of the representative of the guest." In the case of 
Saunders v. Plummer, just cited, Lord Chief Justice Bridgman 
said: "This action here, in the principal case, is not merely in 
nature of an action of trespass, founded upon a tort, though it 
be called trespass upon the case. So neither is it grounded 
merely upon a contract; for it is mixed with negligence and 
special prejudice, by his not keeping the horse of his guest, 
with which he was intrusted; and, therefore, it is more doubt- 
ful whether the executor had any remedy at the common law; 
because, though the action had something of crime or fault, 

« Norcross v. Norcross, 53 Me. 163 (1865); Stanley v. Bircher, 78 Mo. 245 
(1883); People v. Willett, 26 Barb. (N. Y.) 78 (1857). 
« Hallenbake v. Fish, 8 Wend. (N. Y.) 547, 24 Am. Dec. 88 (1832). 

7 Kisten v. HUdebrand, 9 B. Mon. (Ky.) 72 (1848). 

8 Horslow's Case, Y. B. 22 Hen. 6, 21, pi. 38 (1444). "Being entertained 
as a guest at defendant's inn" sufficiently alleges that defendant is an inn- 
keeper. Norcross v. Norcross, 53 Me. 163 (1865). 

9 Towson V. Havre de Grace Bank, 6 Har. &. J. (Md.) 47, 14 Am. Dec. 254 
(1823). "Being a public innkeeper, received the horses as such" sufficiently 
alleges the relation. Peet v. McGraw, 25 Wend. (N. Y.) 653 (1841). 

i» Stanley v. Bircher, 78 Mo. 245 (1883). 

" Morgan v. Ravey, 6 H. & N. (Eng.) 265 (1861); Saunders v. Plummer, 
0. Bridg. 223 (1662). 

[ 199 ] 



§ 285.] Innkeepers. [Chap. XXII. 

the action is per defectum bonoe custodioe. ... In this case, 
there is contractus, or quMsi contractus, between the guest and 
the innkeeper. . . . The law forceth the guest to make 
a recompense. If he pay not, he, may detain his horse, and 
is not bound to his action; or if he will bring his action, he 
may without any special contract have an action for his horse, 
and all the meat, drink, lodging, and other accommodations 
which he had at the inn. So that now the law makes the con- 
tract; and his not safely delivering the horse, though it be 
occasioned by his own negligence, yet is a breach of his con- 
tract in law, which was to keep, preserve, and restore the 
horse. If there had been an assumpsit in fact to deliver goods, 
though they were after stolen, an action would lie by the 
executor for breach of it by the common law; the same reason 
here upon an assumpsit, or contract in law. And this is the 
main reason that moves me in this case." 

§ 285. Who may sue. 

An innkeeper may be sued as such for loss of goods only by 
the guest. If one lends his property to another, and the bailee 
comes with it to an inn and it is there lost, the guest alone 
may enforce the innkeeper's pecuhar UabiUty.^^ If, however, 
the guest is a member of the owner's family the owner may 
sue; so a father may sue the innkeeper for the loss of his goods 
taken to an inn by his minor son,^^ or a master for his goods 
taken to an inn by his servant," or a partner for goods of the 
firm taken to an inn by another partner. ^^ 

12 Robinson v. Waller, 1 Rol. Abr. 3, pi. 6 (1617) ; Coykendall v. Eaton, 
55 Barb. (N. Y.) 188, 37 How. Pr. 438 (1869); Chandler v. Haas, 12 York 
Leg. Rec. (Pa.) 127 (1899). 

"Dickinson v. Winchester, 4 Cush. (Mass.) 114 (1849); Epps v. Hinds; 
27 Miss. 657, 61 Am. Dec. 528 (1854); CoykendaU v. Eaton, 55 Barb. (N. Y.) 
188, 37 How. Pr. 438 (1869); Read v. Amidon, 41 Vt. 15 (1868). 

" Robinson v. Waller, 1 Rol. Abr. 3, pi. 7 (1617); Beedle v. Morris, Cro. 
Jac. 224, Yelv. 162 (1609); Candy v. Spencer, 3 F. & F. 306 (1862); Becker 
V. Haynes, 29 Fed. 441 (1887); Berkshire Woolen Co. v. Proctor, 7 Cush. 
(Mass.) 417 (1851). 

15 Needles v. Howard, 1 E. D. Smith (N. Y.), 54 (1850). 

[200] 



Chap. XXII.] Action against Innkeeper. [§ 285. 

The reason for these decisions is that the legal possession of 
the goods at the time of the injury is in the father or master, 
and he is permitted to sue directly for an injury to his posses- 
sion. The bailee has an independent possession, and the bailor 
should therefore have no action based on the duty of innkeeper. 
If the innkeeper committed an active tort, as, for instance, by 
converting the goods to his own use, the bailor should of course 
have an action, as any owner would have; but this is quite 
independent of the action based on the habihty of the inn- 
keeper. 

This distinction appears to have been lost sight of by the 
courts in a few cases. In Maryland, a bailee of money be- 
came a guest at an inn, and the money was stolen. The owner 
of the money was allowed to sue the innkeeper for the loss.'* 
The innkeeper was chargeable, the court said, not on the ground 
that the owner was a guest, but because the innkeeper received, 
no matter from what hand, a compensation for the risk. 

In an early case in Massachusetts the owner of a horse which 
had been hired and taken to the inn by the guest was allowed 
to sue for the loss of it. The guest was described in the dec- 
laration and the opinion of the court as the plaintiff's servant, 
but she was obviously a bailee." In a later case in Massachu- 
setts (where, in fact, the guest was a servant) a dictum of the 
court in Bedle v. Morris, as reported by Yelverton,'* is cited: 
" Moreover it is not material whether he was his servant or not; 
for if it was his friend by whom the party sent the money, and 
he is robbed in the inn, the true owner shall have the action. " 
This dictum is probably the source of the error; but though 
it seems incorrect it does not justify the inference that an or- 
dinary bailor can sue. 

1" Towson V. Havre de Grace Bank, 6 Har. & J. (Md.) 47, 14 Am. Dec. 254 
(1823). And see to the same effect Walker v. Sharpe, 31 Up. Can. Q. B. 
340 (1871). 

" Mason v. Thompson, 9 Pick. (Mass.) 280, 20 Am. Dec. 471 (1830). 

w Yelv. 162; the dictum does not occur in the report of the same case. 
Cro. Jac. 224 (Eng. 1609). 

[201] 



§ 291.] 



Innkeepers. 



[Chap. XXIII. 



TITLE YI. 

OTHER PUBLIC HOUSES. 

CHAPTER XXIII. 

THE BOARDING HOUSE. 



§ 291. Difference between boarding 
house and inn. 

292. Responsibility of keeper for 

goods of boarder. 

293. Responsibility for negligence 

of servant. 

294. Kature of care required. 



§ 295. Care in the admission of per- 
sons as boarders. 

296. Contributory negligence of 

the boarder. 

297. Special undertaking of the 

Boarding-house keeper. 

298. boarding-house keeper's lien. 



§ 291. Difference between boarding house and inn. 

The boarding house, as has aheady been seen/ is a house 
for the entertainment of persons who make a more or less per- 
manent residence in it. Its patrons are not, like those of an 
inn, engaged on a journey; they have time to find out a sat- 
isfactory house and make a fair bargain with the keeper of it 
before engaging accommodations. The difference between 
them, therefore, is that an inn is a house which midertakes to 
serve the immediate necessities of a traveller while engaged 
on a journey; a boarding house is a house provided for a per- 
manent habitation for more or less settled residents of the 
place.^ And therefore a hotel at a watering place which takes 
only such guests as come to stay for a time for pleasure is a 

1 Ante, f§ 14,32. 

2 Parker v. Flint, 12 Mod. 254 (Eng. 1701); Pinkerton v. Woodward, 33 
Cal. 557, 91 Am. Dec. 657 (1867); Beall v. Beck, Fed. Cas. No. 1161, 3 Cr. 
C. C. 666 (D. C. 1829); Willard v. Reinhardt, 2 E. D. Smith (N. Y.), 148 
(1853); Commonwealth v. Cuncannon, 3 Brewst. (Pa.) 344 (1869). 

[202] 



Chap. XXIII.] The Boarding House. [§ 292. 

boarding house, not an inn.^ There is no need for a special 
and severe requirement of law to protect boarders, since there 
is time for a boarder to protect himself in any arrangement he 
may make for his board? 
A boarding house, as well as an inn, may be called a " hotel. " ^ 
Though not engaged in a pubUc emplo3mient, the keeper of 
a boarding house is carrsdng on a business which may be so 
conducted as to become a nuisance ; and it is therefore an oc- 
cupation which concerns the police power. The business may 
therefore constitutionally be regulated." 

§ 292. Responsibility of keeper for goods of boarder. 

The responsibility of a boarding-house keeper for the goods 
of his boarder is the same as that of the innkeeper for the 
goods of the boarder; that is, being a case of so-called bailment 
for mutual benefit, the relation imposes upon the boarding- 
house keeper a duty to exercise ordinary care to protect the 
goods intrusted to him against loss by theft or otherwise, and 
subjects him to responsibihty for "ordinary negUgence," that 
is, omission to exercise ordinary care.'' 

But while the standard of care is the same, the question of 
fact, namely, what constitutes due care, is to be determined 
with reference to the acts undertaken by a boarding-house 
keeper, which are in some respects different from the acts un- 
dertaken by an innkeeper as to his boarders. Thus, for in- 
stance, it is the innkeeper's duty to keep servants to guard 
the rooms of the guests from theft, the outer door being open 
to the pubUc; and for lack of a reasonable guard the innkeeper 

s Bonner v. Welborn, 7 Ga. 296 (1849); Kisten v. Hildebrand, 9 B. Mon. 
(Ky.) 72, 48 Am. Dec. 416 (1848); Southwood v. Myers, 3 Bush (Ky.), 681 
(1868). 

4 Manning v. Wells, 9 Humph. (Tenn.) 746, 51 Am. Dec. 688 (1859). 

6 Bonner v. Welborn, 7 Ga. 296 (1849); Carpenter v. Taylor, 1 Hilton 
(N. Y.), 193 (1856). 

6 White V. Holman, 44 Or. 180, 74 Pac. 933 (1904); ante, § 41. 

' Siegman v. Keeler,'4 N. Y. Misc. 528, 24 N. Y. Supp. 821 (1893); Smith 
V. Read, 54 How. Pr. (N. Y.) 14, 6 Daly, 33 (1875). 

[203] 



§ 293.] Innkeepers. [Chap. XXIII. 

would doubtless be held negligent, even toward a boarder.* 
But the boarding house is not open to the world; strangers 
are not freely permitted to enter its outside door, and the 
boarding-house keeper is therefore not to be held negUgent if 
the boarder's goods are stolen from his room, even though it 
is done by thieves from outside. If, however, the boarding- 
house keeper or his servant knowingly permits a stranger to 
enter a boarder's room, the act is neghgent and the house- 
keeper is liable if the stranger steals goods from the room.^ 

§ 293. Responsibility for negligence of servant- 

In an English case the responsibility of the boarding-house 
keeper was much discussed. The goods of a boarder^ who was 
about to leave the house, were in the hall when they were 
stolen by a thief who entered through the outside door, negli- 
gently left open by a servant of the housekeeper. The judge 
charged that if the housekeeper was not personally neghgent 
the boarder could not recover. On a rule for a new trial the 
court of Queen's Bench was equally divided.'" There can be 
no doubt that the charge was erroneous. Erie, J., supported 
it on the ground that " there is no delivery of the goods of the 
plaintiff to the defendant; there is no contract by the defend- 
ant to keep them with care and dehver them again; there is 
no reward in respect of goods, the terms being the same for a 
boarder whether with or without goods; there is no duty of 
keeping owing from defendant to plaintiff, and consequently 
no measure by which to try whether any given act, such as 
leaving a door open, is actionable neghgence contrary to that 
duty. The goods of the plaintiff in this case remained in her 
possession and under her control, and were disposed of by her 
as she chose, without notif3dng what she had done to the de- 
fendant. The bailee for reward has possession, and can apply 

8 This seems to have been assumed in Dansey v. Richardson, 3 E. & B. 
143 (Eng. 1854), and in Siegman v. Keeler, 4 N. Y. Misc. 628, 24 N. Y. Supp. 
821 (1893). 

8 Smith V. Read, 54 How. Pr. (N. Y.) 14, 6 Daly, 33 (1875). 

10 Dansey v. Richardson, 3 E..& B. 143 (Eng. 1854). 
[204] 



Chap. XXIII.] The Boarding House. [§ 293. 

care to guard, and undertakes to do so; the defendant had no 
possession and could apply no care to goods which she knew ■ 
not of." "The defendant's duty was performed, if she took 
such care of the house and things in it as a prudent owner 
would take. . . . The door might be left open in the man- 
ner alleged by a servant without any want of any degree of 
care on the mistress's part, seeing that the owner of a house 
cannot always be at the front door; and when he is absent the 
fact may occur notwithstanding every precaution on his part 
to prevent it. " 

These arguments were fully answered by Coleridge, J.: 
"Whether I am staying at an inn or a boarding house, there 
is ordinarily neither more nor less of an express bailment of 
my goods to the master of the house; in both cases the custody 
of the goods, such as it is, is incident to myself being there as 
guest; and this is in consideration of a valuable reward. . . . 
There may be no express or independent bailment . . . 
and yet there may be a liability where they sustain damage 
or are lost by the misconduct or negligence of the boarding- 
house keeper;" and by Lord Campbell, C. J.: "There is a duty 
on his part, analogous to that incumbent on every prudent 
householder to keep the outer door of the house shut at times 
when there is danger that thieves may enter and steal the 
goods of the guests. If he employs servants to perform this 
duty, while they are performing it they are acting within the 
scope of their employment, and he is answerable for their neg- 
ligence. . . . Wherever a loss of the thing bailed arises 
from a want of the degree of care which from the nature of the 
bailment ought to be exercised, I think it immaterial whether 
the negligence be imputable personally to the bailee, or to 
servants employed by him. . . . The only duty in this 
case arose out of the relation of boarding-house keepe^ and 
guest; but I think there might have been a breach of that duty 
under the circumstances alleged and proved, without proof of 
personal misconduct on the part of the defendant." 

The correctness of the last opinion is clear, and the boarding- 

[205] 



§ 295.] Innkeepers. [Chap. XXIII. 

house keeper, like every other master, is responsible for the 
negUgence of his servant in the coiirse of his emplojmient.^^ 

§ 294, Nature of care required. 

The analysis by Coleridge, J., of the obhgation of the keeper 
of a boarding house is valuable. 

" If the defendant here had neglected to give the plaintiff a 
dry bed, or wholesome food, and the plaintiff had become sick 
in consequence, if the defendant had by negligence lost the 
boots or shoes, or any articles of the plaintiff's dress which in 
the course of attendance on her she had taken to clean it can- 
not be doubted that she would have been liable to make rec- 
ompense in damages. . . . 

"When indeed we speak of taking the same care of the 
guest's goods as a prudent owner would take care of his own, 
we do not speak of a habit or character generally, but we apply 
it to the particular instance upon which the question arises in 
judgment. Occasional carelessness of conduct is consistent 
with general carefulness of character, though it is not com- 
monly found with it. A man, therefore, may be a prudent 
owner, and yet not in every instance take good care of his own 
property. " 

§ 295. Care in the admission of persons as boarders. 

In Siegman v. Keeler " a boarder sued the keeper of the 
boarding house to recover the value of goods stolen from his 
room. He alleged negUgence in three particulars: that the 
street door was in an insecure condition; that the housekeeper 
did not keep the boarder's room locked during his absence; and 
that she did not at once eject a boarder who on one or two 
occasions had come home late at night and left the street door 
ajar. As to the first ground, it was found untrue in fact; it 
seemed to be conceded that ' it would have been negligence 
knowingly to leave the street door insecurely fastened. As to 

11 Smith V. Read, 54 How. Pr. (N. Y.) 14, 6 Daly, 33 (1875). 

12 4 N. Y. Misc. 528, 24 N. Y. Supp. 821 (1893). 

[206] 



Chap. XXIII.] The Boakding House. [§ 295. 

the second ground, the court said that "in the absence of proof 
to the contrary, we must assume that defendant exercised at 
least ordinary care in the admission of persons as patrons of 
her house or otherwise, refusing admission to such as were 
known to be of ill repute, vicious inclinations or habits, by 
which the persons or goods of others were endangered. Hav- 
ing done so, she was not to be considered as an insurer against 
acts of imprudence or dishonesty on the part of persons ad- 
mitted, and it most certainly would have been an exhibition 
of extraordinary viligance if, under such circimistances, de- 
fendant had kept every room, nook, and cranny of her house 
securely locked and bolted against possible marauders from 
within. " The correctness of this view must be conceded. The 
boarding-house keeper is under a duty to admit no dangerous 
person knowingly as a guest, and to exercise some reasonable 
scrutiny as to the character of the inmates. That done, he is 
not responsible, without actual negUgence, for a theft by one 
boarder from another. 

As to the third point, the court said : 

"Lastly, we are unable to persuade ourselves that with like 
care in the choice of her patrons it was even sUght negligence 
on the part of defendant that she did not rid her house of 
a patron who had once, or even twice, relaxed the exercise of 
ordinary caution to securely close the front door after his in- 
gress late at night. It would involve the severest strain to 
construe this circumstance into omission by defendant to use 
ordinary care to protect her patrons' effects. Occasional omis- 
sions of precaution of merely prudential suggestion, however 
induced, are not of infrequent occurrence. We do not believe 
ourselves at faidt if we assume that they have happened to 
most, if not to all, persons, and that they will happen again and 
again, and because of that fact the frailty of human foresight 
in that respect may be said to fairly enter into the considera- 
tion of our daily affairs, and so that plaintiff and his brother 
may be deemed to have entered defendant's house subject to 
the risk of such occurrences. If it was negligence for defend- 

[207] 



§ 295.] Innkeepers. [Chap. XXIII. 

ant to continue to harbor an offender upon discovery of his 
transgressions, it would have been equally so for another to 
have afforded him shelter with knowledge of his fault; and the 
logical sequence of respondent's contention would be that the 
occasional lapses of defendant's convivial boarder should have 
been visited with punishment so severe that he would be from 
henceforth and forever compelled to be ' a wanderer on the face 
of the earth. ' Of course, a vastly different aspect of the matter 
would have been presented had it appeared in evidence that 
defendant continued to harbor a patron who was habitually 
remiss in his attention to matters of common prudence, and 
whose conduct thus tended to expose the persons and goods 
of other patrons to needless risk." 

The boarding-house keeper, the court also said, must exer- 
cise a reasonable degree of care for the safety of his guests and 
their goods. " If it be shown that the goods have been lost, 
destroyed or stolen, he is not answerable for their value, unless 
it further appears that with due care on the part of the bailee 
the loss, destruction, or theft would have been averted. ^^ The 
burden of proof in such a case is, as in other instances of im- 
puted negUgence, upon him who asserts the want of due care, 
the presumption always being that a person has performed a 
duty required of him. . . . Ordinary care is that degree 
of care which constitutes the average of common prudence, 
and would have been employed by most persons under the 
same circumstances," and in the case of a boarding-house 
keeper may properly include the exercise of a reasonable degree 
of discrimination in the admission and maintenance of persons 
as patrons of his estabUshment. A boarding-house keeper, 
furthermore, is, in the absence of an agreement to the contrary, 
in contemplation of law, a custodian of his patron's goods.^^ 
The former thus becomes a bailee of the latter's goods. The 

13 Citing Claflin v. Meyer, 75 N. Y. 260; Leoncini v. Post, 13 N. Y. Supp. 
825. 

" Citing Ernst v. R. R., 35 N. Y. 9, 26. 

15 Citing Ingallsbee v. Wood, 36 Barb. 452. 

[208] 



Chap. XXIII.] The Boarding House. [§ 297. 

relation of the parties creates a baihnent for mutual benefit, 
which imposes upon the bailee a duty to exercise ordinary care 
to protect the goods intrusted to him against loss by theft or 
otherwise, and subjects him to responsibiUty for ordinary neg- 
Ugence; that is to say, for the omission to exercise ordinary 
care. " ' 

§ 296. Contributory negligence of the boarder. 

As in the case of an inn, so in the case of a boarding house, 
the contributory negUgence of the boarder may bar his ac- 
tion against the housekeeper for loss of goods. Thus, in a case 
where goods were stolen from the boarder's room he was held 
barred from recovery on account of his contributory negli- 
gence in leaving his door unlocked; ** and though this might 
be questionable in the case of an inn," it seems imdoubtedly 
correct in the case of an ordinary boarding house. In an inn 
there are usually servants employed to guard the corridors 
and keep out suspicious intruders; but in an ordinary boarding 
house no such watchfulness can be expected of the keeper, and 
it is therefore incumbent upon the boarder to exercise care over 
his goods by locking his door. 

§ 297- Special nudertaking of the boarding-house keeper. 

Of course the common-law UabiUty of the boarding-house 
keeper may be modified or the extent of care required of him 
be enlarged by an express agreement or by the special cir- 
cumstances of the case. This was well brought out by the 
case of Scarbrough v. Cosgrove." The plaintiff was a boarder 
in the defendant's house. He informed the defendant that 
he had property which he wished to keep under lock and key, 
and asked for a key of the bedroom door. He was told that 
a second key could not be suppHed, that he must remove the 
key and leave it with the defendant as it was required for the 

10 Buddenburg v. Benner, 1 Hilton (N. Y.), 84 (1856). 

"Ante, §224. 

18 [1905] 2 K. B. 805. 

14 [ 209 ] 



§ 298.] Innkeepers. [Chap. XXIII. 

purpose of giving the servants access to the room, and that 
the room would be quite safe as the people in the house were 
aU known. Valuable goods were stolen from the plaintiff's 
room by another boarder, who had been admitted to the house 
without references or inquiry about him, and who turned out 
to be a professional thief. It was held by the Court of Ap- 
peal that imder the special circumstances there was evidence 
from which a Jury might find such lack of reasonable care as 
would make the defendant liable for the loss. The Lord 
Justice Romer said: "Seeing that the landlord carries on his 
business of a boarding-house keeper for a reward, I think he 
is bound to carry on that business with reasonable care, having 
regard to the nature and normal conduct of the business as 
known to the guest, or as represented to the guest by him; 
and if by reason of a breach of that duty on his part the lug- 
gage is lost I can see no reason why he should not be held 
liable for the loss to the guest." Stress was laid on the fact 
that an improper person had been admitted to the house, 
contrary to the defendant's representations. "One of the 
considerations which has pressed on me is that, on the evidence 
as it stands, tinanswered at present by the defendant, the 
business appears to have been represented by the defendant 
to the plaintiffs as one where the guests staying in the house 
were known to the defendant, and where, consequently, there 
was comparatively Httle risk in the system adopted by the 
defendant in the management of the business as to only one 
key being kept both for the purposes of the guest and the 
purposes of the defendant's servants: whereas it now appears 
from the evidence, as it at present stands, that the defendant 
admitted the guest who stole the plaintiff's chattels without 
any knowledge of him, and without any references or intro- 
duction, or inquiry as to his respectabiUty." 

§ 298. Boarding-liouse keeper's lien. 

A boarding-house keeper is often given by statute a lien on 
his guest's goods for board. This statute does not apply to a 
[210] 



Chap. XXIII.] The Boarding House. [§ 298. 

mere private housekeeper who incidentally receives a person 
to board, but only to one who makes a business of keeping a 
boarding house; " but to such person it gives the same hen 
upon the effects of his boarder for his charges which an inn- 
keeper has at common law upon the goods of his guest for the 
price of his board and lodging.^" The lien covers only charges 
for board and lodging actually furnished to the boarder; it does 
not cover a charge for keeping a horse,^^ nor does it secure 
damages due for breach of a contract to remain as a boarder.^^ 
It exists upon the goods of a transient as well as of a perma- 
nent boarder.^^ 

The statutory lien extends only to goods of the boarder, and 
not to goods of a third person brought to the house by the 
boarder.^^ This is true even if the owner of the goods is re- 
sponsible for the board bill. Thus, where a man drove his wife 
and child from home by his cruelty and neglect, and they went 
to a boarding house imder such circimistances that he was Uable 
for their board, taking with them certain furniture and wearing 
apparel belonging to the man, it was held that the boarding- 
house keeper had no lien on the goods.^' 

On the other hand, there is no lien on the goods of the boarder 
where the credit for the board bill is actually extended to an- 
other. Thus, where a husband engaged board for his wife and 
became responsible for the board bill, no Hen could be enforced 
against the wife's goods.^* 

The lien attaches to the goods when the charge is incurred, 



loCady V. McElweU, 1 Lans. (N. Y.) 484 (1869). 

20 Nichols V. HaUiday, 27 Wis. 406 (1871). 

21 Cross V. Wilkins, 43 N. H. 332 (1861). 

22 Shafer v. Guest, 6 Rob. (N. Y.) 264, 35 How. Pr. 184 (1868). 

23 Stewart v. McCready, 24 How. Pr. (N. Y.) 62 (1861). 

21 Mills V. Shirley, 110 Mass. 158 (1872); Misch v. O'Hara, 9 Daly (N. Y.), 
361 (1880); Barnett v. Walker, 39 N. Y. Misc. 323, 79 N. Y. Supp. 859 
(1902) . (See under earlier statute, however, Jones v. Morrill, 52 Barb. (N. Y. 
1864), 623; Newcombe v. Anderson, 11 Ont. 665 (1886); ante, § 265. 

25 Mills V. Shirley, 110 Mass. 158 (1872). 

28 McUvane v. HUton, 7 Hun (N. Y.), 594 (1876); ante, § 264. 

[211] 



§ 298.] Innkeepers. [Chap. XXIII. 

though the time for pasnuent has not yet arrived," and con- 
tinues to bind the goods wherever they are carried, even though 
they be taken into another State.^* 

2' Smith V. Colcord, 115 Mass. 70 (1874). 

28 Jaquith y. American Express Co., 60 N. H. 61 (1880). 



[212] 



Chap. XXIV.] 



The Restaurant, 



[§ 302. 



CHAPTEE XXIV. 



THE RESTAURANT. 



301. Difference between restaurant 

and inn. 

302. Duty of keeper of restaurant 

to customer personally. 

303. Responsibility for the goods 

of customer. 



§ 304. Responsibility on a bailment. 

305. Responsibility on an implied 

bailment. 

306. Responsibility for defect of 

watchfulness. 



§ 301. Difference between restaurant and inn. 

The restaurant is a house for the entertainment of anyone, 
whether resident or traveller; and the entertainment furnished 
is food and drink, without lodging. It differs in this respect 
from inn and boarding house, which furnish lodging as well as 
food.^ An innkeeper may carry on, under the same roof, a 
restaurant, to which he invites all persons to come for food and 
drink only.^ 



§ 302- Duty of keeper of restaurant to customer personally. 

The restaurant keeper is not an insurer of the quality of the 
food he furnishes, but he is liable for knowingly or negligently 
furnishing bad and deleterious food.' He is also responsible 
for the conduct of his servants towards his customers. He is 
liable if a waiter negligently spills a glass of water on a cus- 
tomer's dress.* 

1 Sheffer v. Willoughby, 163 HI. 518, 45 N. E. 253, 34 L. R. A. 464 (1896); 
Block V. Sherry, 43 N. Y. Misc. 342, 87 N. Y. Supp. 160 (1904); Carpenter 
V. Taylor, 1 Hilton (N. Y.), 193 (1856) ; Dunn v. Bean, Quebec Rep. 11 Super. 
Ct. 538 (1897). 

2 Regina v. Rymer, 2 Q. B. D. 136, 46 L. J. M. C. 108 (1877). 

3 Sheffer v. Willoughby, 163 111. 518, 45 N. E. 253, 34 L. R. A. 464 (1896). 
* Block V. Sherry, 43 N. Y. Misc. 342, 87 N. Y. Supp. 160 (1904). 

[213] 



§ 304.] Innkeepeks. [Chap. XXIV. 

The keeper must also take care to secure the safety of his 
customer against defects of the building itself. Thus, where a 
person taking a meal in the defendant's restaurant, situated 
on the "Iron Pier" at Rockaway Beach, was injured by the 
collapse of the pier, she was held entitled to compensation. 
"The plaintiff was upon this platform for the purpose of eating 
a meal. She was there because the defendant impliedly stated 
to her that the place was safe for that purpose and it was the 
duty of the defendant to have the premises in a reasonably 
safe condition. The platform fell, the plaintiff was injured, 
and, the defendant having failed to show a condition of facts 
estabhshing a reasonable degree of care to make the premises 
what he had held them out to be, he was properly chargeable 
with liability for the injuries sustained."^ 

§ 303' Responsibility for the goods of customer- 

The responsibility of the restaurant keeper for the goods of 
the customer brought by him into the restaurant has been 
much discussed. It is certain that at common law he does 
not have under any circumstances the extraordinary UabiUty 
of an innkeeper; ® though in the Province of Quebec, where 
the innkeeper is responsible only for due care, and is hable only 
for a loss caused by his negligence, the restaurant keeper is 
said to be under the same responsibihty as an innkeeper.^ 

The habiUty of the restaurant keeper may be rested upon 
either one of the three following grounds: 

§ 304. Responsibility on a bailment- 

By the custom of the restaurant, the guest's coat and hat 
may be taken by a servant at the entrance to the restaurant. 
In that case there is an. express bailment to the restaurant 
keeper, and the bailment is for hire, or, as it is sometimes put, 
for the mutual benefit of bailor and bailee. For though there 

6 Schnitzer v. Phillips, 95 N. Y. Supp. 478 (1905), per "Woodward, J. 
6 Simpson v. Rourke, 13 N. Y. Misc. 230, 34 N. Y. Supp. 11 (1895). 
^ Dunn v. Bean, Quebec R. US. C. 538 (1897). 
[214] 



Chap. XXIV.] The Restaurant. [§ 305. 

is nothing specially paid to the restaurant keeper for taking 
charge of the goods, still it is done as a business matter: "for 
such a system might obAdously add to the popularity of the 
establishment, and would probably be adopted with that very 
object in view."* The restaurant keeper in such a case is 
therefore Uable for any loss caused by his neglect of reasonable 
care.* 

The same principle is involved where the waiter takes the 
guest's coat and hat and hangs them on a hook when the guest 
sits at the table; then, too, there is held to be a bailment for 
mutual benefit, so that the restam-ant keeper is Uable for a loss 
which happens by reason of his negligence.^" 

§ 305. Responsibility on an implied bailment. 

In the second place, an "imphed bailment" may be estab- 
lished by less direct proof of delivery to the servant of the res- 
taurant keeper; as, for instance, by evidence that an overcoat 
was necessarily laid aside tinder circumstances showing at least 
notice of the fact and of such necessity to the restaurant keeper 
or his servants." 

If there is a bailment the restaurant keeper is responsible 
for a loss caused by his negligence, even though the words " not 
responsible for hats and coats" were printed on the bill of fare, 
and the waiters were forbidden to take hats and coats. The 
customer could be affected by a rule of this sort only if it was 
properly published so as to be called to his attention.!^ 

8 Charles, J., in Ultzen v. Nicol, (1894) 1 Q. B. 92, 63 L. J. Q. B. 289, 10 
Rep. 13, 70 L. T. 140, 40 W. R. 58, 58 J. P. 103 (Eng.). 

9 La Salle Restaurant & Oyster House v. McMasters, 85 111. App. 677 
(1899); Buttman v. Dennett, 9 N. Y. Misc. 462, 30 N. Y. Supp. 247 
(1894). 

10 Ultzen V. Nicol, (1894) 1 Q. B. 92, 63 L. J. Q. B. 289, 10 Rep. 13, 70 L. 
T. 140, 42 W. R. 58, 58 J. P. 103 (Eng.); Appleton v. Welch, 20 N. Y. Misc. 
343, 45 N. Y. Supp. 751 (1897). 

11 Montgomery v. Ladjing, 30 N. Y. Misc. 92, 61 N. Y. Supp. 840 
(1899). 

12 La Salle Restaurant & Oyster House v. McMasters, 85 HI. App. 677 
(1899). 

[215] 



§ 306.] Innkeepers. [Chap. XXIV. 

§306. Responsibility for defect of watchfulness. 

Finally, the restaurant keeper, though not a bailee in any 
sense, may be held responsible for loss of the goods of his guest 
if the loss happened by reason of the insufficiency of the gen- 
eral supervision exercised by the keeper of the restaurant for 
the protection of his customer's goods; and the burden of prov- 
ing neglect of duty is on the plaintiff." The kind and amount 
of supervision reqtiired of the restaurant keeper, and the ques- 
tion of his neglect of due care, depend of course upon the 
special circimistances of each case. "It is well known that 
there are all kinds of restaurants. In some of them good taste 
and etiquette require that a customer should take his hat and 
overcoat off while taking a meal, while in others, especially the 
so-called 'quick lunch' establishments, customers frequently 
remove neither hat nor overcoat. " " And where sufficient 
general supervision is exercised by the restaurant keeper, he 
is not liable when the guest himself hangs his overcoat on a 
hook, without calling the waiter's attention to it, and it is 
stolen from the hook.^^ 

13 Montgomery v. Ladjing, 30 N. Y. Misc. 92, 61 N. Y. Supp. 840 (1899); 
Harris v. Childs' Unique Dairy Co., 84 N. Y. Supp. 260 (1903); Simpson v. 
Rourke, 13 N. Y. Misc. 230, 34 N. Y. Supp. 11 (1895). 

14 Freedman, P. J., in Montgomery v. Ladjing, supra. 

15 Simpson v. Rourke, 13 N. Y. Misc. 230, 34 N. Y. Supp. 11 (1895); 
Montgomery v. Ladjing, 30 N. Y. Misc. 92, 61 N. Y. Supp. 840 (1899); 
Harris v. Childs' Unique Dairy Co., 84 N. Y. Supp. 260 (1903). In both the 
last two cases the guest had notice that articles might be deposited with 
the cashier; but the cases seem to have turned on the absence of a bailment. 



[216] 



Chap. XXV. 



The Theatre. 



[[§ 312.- 



CHAPTER XXV. 



THE THEATRE. 



Topic I. The nature of a 
theatre. 

Definition of a theatre. 

An opera house is a theatre. 

Topic II. Admission to the 
theatre. 
313. The manager may fix prices 
as he pleases. 

The manager may admit 
whom he pleases. 

Ticket for entrance to a the- 
atre is a mere license. 

Ticket is also a contract not 
to revoke license. 

How far a ticket is transfer- 
able. 
318. Accommodations secured by 
the ticket. 

Topic III. Rights of specta- 
tors. 



§ 311 
312 



314. 



315. 



316. 



317. 



§ 319. The right of spectators to crit- 
icise the entertainment. 

320. The right of spectators to ap- 

plaud or hiss. 
Topic IT. Responsibility of 
the manager. 

321. Responsibility of the manager 

for the personal safety of 
the spectator. 

322. Responsibility of the manager 

for the safety of the prem- 
ises. 

323. Contributory negligence of 

the injured party. 

324. Responsibility of the manager 

for the goods of the specta- 
tor. 
Topic T. Licenses. 

325. The requirement of a license. 



Topic I. The Nature of a Theatre. 

§ 311. Definition of a theatre. 

A theatre is a house in which a story is represented by human 
action upon a stage.^ Though the stage is usually supplied 
with appropriate scenery and with machinery for producing 
certain spectacular effects, this is not essential; for both in 
early times and to-day dramas are performed without scenery. 
It is not necessary that the words spoken on the stage be com- 

1 Jacko V. State, 22 Ala. 73 (1853); Bell v. Mahn, 121 Pa. 225, 15 Atl. 523, 
6 Am. St. Rep. 786, 1 L. R. A. 364 (1888). 

[217] 



§ 312.] Innkeepers. [Chap. XXV. 

mitted to memory, the dialogue may be impromptu.^ Nor is 
it even necessary that there shall be dialogue; a pantomime, or 
a ballet which represents a consecutive story,^ or a comic song 
sung in character, with costumes and action,* constitutes a 
theatrical entertainment, but not mere dancing in costume on 
the stage ^ or a mere exhibition on the stage of natural or arti- 
ficial curiosities.^ 

In an English case it appeared that a room contained a stEtge, 
footUghts, scenery, etc.; that only two living characters ap- 
peared on the stage, one of whom took no important part in the 
performance, and that a drama was carried on, but the action, 
speaking and dancing of all the characters except those men- 
tioned took place in a room below the stage, and were so re- 
flected upon the stage by mirrors, etc., as to seem to the spec- 
tators to be taking place there. On the ground that two actors 
were actually performing their parts on the stage, this was held 
to be a "stage play, " in the language of the act; but the court 
was uncertain whether the performance of the actors in the 
room below could be described by that term.'' This doubt was 
probably caused by the peculiar term used in the act; a house 
for such a performance would be a theatre. 

§312. An opera house is a theatre. 

An early case, not much considered, held that an opera house 
was not a theatre ; the distinction being drawn between a drama, 
which is spoken or recited, and an opera, which is sung.* But 
this case was afterwards overruled, and an opera held to be a 
theatrical exhibition.® In the course of his opinion Judge Clark 

2 Society for the RefonnatioB, etc., v. Diers, 10 Abb. Pr. N. S. (N. Y.) 216 
(1871). 

sWigan v. Strange, L. R. 1 C. P. 175 (1865). 

i Gartenstein's License, 15 Pa. Co. Ct. 612, 4 Pa. Dist. Rep. 37 (1894). 

6 Wigan V. Strange, L. R. 1 C. P. 175 (1865). 

6 New Orleans v. North, 12 La. Ann. 205 (1857). 

1 Day V. Simpson, 18 C. B. N. S. 680 (1865). 

8 Rowland v. Kleber, 1 Pittsb. (Pa.) 68 (1853). 

» Bell V. Mahn, 121 Pa. 225, 15 Atl. 523, 6 Am. St. Rep. 786, 1 L. R. A. 
364 (1888). 

[218] 



Chap. XXV.] The Theatre. [§ 312. 

said: "A drama is a story represented by action. The repre- 
sentation is as if the real persons were introduced and em- 
ployed in the action itself. It is ordinarily designed to be 
spoken, but it may be represented in pantomime, when the 
actors use gesticulation, sometimes in the form of the ballet, 
but do not speak; or in opera, where music takes the place of 
poetry and of ordinary speech, and the dramatic treatment is 
essentially different from either. An 'opera' is defined: 'A 
musical drama, consisting of airs, choruses, recitations, etc., 
enriched with magnificent scenery, machinery, and other dec- 
orations, and representing some passionate action. ' (Webster.) 
The spoken drama, therefore, and the opera, agree in the 
method or manner which is essential to the dramatic art, viz: 
imitation in the way of action. In the former, it is true, the 
actor observes the rules of rhetoric and of oratory, and foUows 
the special laws of dramatic delivery; while in the latter he 
employs the power of music, both vocal and instrumental, as 
a medium of artistic and passionate expression, — music, how- 
ever, which is not arranged with reference mainly to its melodic 
interest, but in such form as to express, not only the words, but 
the thoughts, emotions and passions of the mind, such as 
joy, grief, hope, despair, etc., which the idea or conception of 
the play may involve. The word setting, the orchestrazation, 
the musical intervals, and the composition generally, are all 
arranged to serve the exigency of the passing sentiment, and 
to turn the subject of the story into the action of the play. In 
short, the opera is composed with special reference to the de- 
clamatory power of music. . . . 

"The opera is essentially and in every point of view a dra- 
matic composition, and its representation a dramatic exhibi- 
tion. It is a matter of common knowledge that some of the 
most famous dramatic characters of modern times have devel- 
oped their exquisite powers upon the operatic stage. It may, 
of course, be conceded that music is in some sense an essential 
element in the opera. In this respect it is distinguished from 
the spoken drama, but the fimdamental and really essential 

[219] 



§ 314.] Innkeepers. [Chap. XXV. 

element of both is action. The opera house and the theatre 
alike comprehend the stage, proscenium boxes, orchestra, pit 
or parquet, and the galleries. The scenic representation is of 
the same general character, and the stage machinery and dec- 
orations of the same order. The ordinary theatre is adapted 
to the performance of the opera, and it is well known that this 
form of exhibition, especially of the light opera and the opera 
comique, rendered 'partly in song and partly in dialogue,' 
forms in these days a prominent feature of theatre work." 

Topic II. Admission to the Theatre. 

§ 313- The manager may fix prices as he pleases. 

The manager of a theatre is not engaged in a public employ- 
ment, and he may therefore conduct his business as he pleases; 
and he may therefore fix prices without regard to the question 
whether they are reasonable. In a case where it was attempted 
to justify a tumult in a theatre on the ground that the spec- 
tators were justly incensed by a raising of the prices. Sir James 
Mansfield said: "Theatres are not absolute necessaries of life, 
and any person may stay away who does not approve of the 
manner in which they are managed. If the prices of admission 
are unreasonable, the evil will cure itself. People will not go, 
and the proprietors will be ruined imless they lower their de- 
mands. But the proprietors of a theatre have a right to man- 
age their property in their own way, and to fix what prices of 
admission they think most for their own advantage. " ^° The 
theatre, as was well said in a New York case, "is in no sense a 
public enterprise, and is consequently not governed by the 
same rules which relate to common carriers or other public in- 
stitutions of a like character." ^^ 

§314. The manager may admit whom he pleases. 

The manager of a theatre may admit or exclude from his 
theatre anyone he pleases; no one has a right to demand ad- 

10 Clifford V. Brandon, 2 Camp. (Eng.) 358, 368 (1809). 

11 MoneU, J., in Purcell v. Daly, 19 Abb. N. C. (N. Y.) 301. 303 (1886). 

[220] 



Chap. XXV.] The Theatee. [§ 316. 

mittance. " Should anyone apply at the box office of a theatre 
and desire to purchase tickets of admission and be refused, 
there can be no question that he would have no cause of action 
against the proprietor of the theatre for such refusal. " ^^ Even 
the public advertisement of a sale of tickets for a performance 
is not an offer, which is accepted by the purchaser tendering 
his money at the box office. The offer for a contract is made 
by the person desiring to buy a ticket when he tenders his 
money, and the ticket seller may legally refuse to sell him a 
ticket." 

§ 315- Ticket for entrance to a theatre a mere license. 

A ticket for entrance to a theatre is a mere license, not an 
interest in land;'* and not being coupled with an interest it 
may be revoked at any time, either before or after entrance to 
the theatre.*^ If after such revocation the purchaser persists 
in staying in the theatre, or in attempting to enter it, he may 
be excluded by the use of such force as is necessary for the 
purpose.'" And being a mere license, a ticket does not bind 
an assignee or lessee of the person issuing it." 

§316. Ticket is also a contract not to revoke license. 

But though a ticket is a mere hcense, so far as any right to 
enter the building is concerned, it is also a contract with the 
holder of it to permit him to enter and see the play. A revo- 

"MoneU, J., in PurceU v. Daly, 19 Abb. N. C. 301, 303 (1886). 

13 Pearce v. Spalding, 12 Mo. App. 141 (1882). 

"Taylor v. Waters, 7 Taunt. (Eng.) 374 (1817); Wood v. Leadbitter, 13 
M. & W. (Eng.) 838 (1845); McCrea v. Marsh, 12 Gray (Mass.), 211, 71 Am. 
Dec. 745 (1858); Burton v. Scherpf, 1 Allen (Mass.), 133, 79 Am. Dec. 717 
(1861); Purcell v. Daly, 19 Abb. N. C. (N. Y.) 301 (1886); Collister v. Hay- 
man, 71 App. Div. 316, 75 N. Y. Supp. 1102 (1902). 

15 Wood V. Leadbitter, 13 M. & W. (Eng.) 838 (1845), overruling on this 
point Taylor v. Waters, 7 Taunt. (Eng.) 374 (1817). 

18 McCrea v. Marsh; 12 Gray (Mass.), 211, 71 Am. Dec 745 (1858); Burton 
V. Scherpf, 1 Allen (Mass.), 133, 79 Am. Dec. 717 (1861); Purcell v. Daly, 
19 Abb. N. C. (N. Y.) 301 (1886); (but see Smith v. Leo, 92 Hun [N. Y.], 
242, 36 N. Y. Supp. 949 [1895] ); Collister v. Hayman, 71 N. Y. App. Div. 
316, 75 N. Y. Supp. 1102 (1902, semble). 

17 Coleman v. Foster, 1 H. & N. (Eng.) 37 (1856). 

[221] 



§ 316.] Innkeepees. [Chap. XXV. 

cation of the license, therefore, while not a tort, is a breach of 
the contract contained in the ticket; and though the person 
who presents the ticket has no right to remain on the premises, 
he may sue for breach of the contract, and recover not only 
the price of admission but also any incidental expenses to which 
he may have been put.^* 

The damages for illegal expulsion from a place of amusement 
of one who is rightfully in includes not merely the amount paid 
for admission, but also compensation for the indignity and 
disgrace, and any other damage actually suffered as a result of 
the expulsion," but not exemplary damages, in the ordinary 
case.^" 

There is a tendency in some courts to deny that a ticket is 
a mere revocable license, but in such a case the court usually 
decides only that an action lies; and the real nature of the 
action is for breach of contract by revoking the license con- 
trary to the terms of the agreement. Thus, in Drew v. Peer ^^ 
where a ticket holder was ejected from the lobby of the theatre 
he was held entitled to damages; and Judge Sterrett said: 
"Whether the tickets conferred merely a Hcense or something 
more is immaterial. If they gave only a license to enter the 
theatre and remain there during the performance it is very 
clear that the agent of the defendant had no right to revoke 
it as they did, and summarily eject Peer and his wife from the 
building in such manner as to injure her. We incUne to the 
opinion, however, that as purchasers and holders of tickets for 
particular seats they had more than a mere hcense. Their 
right was more in the nature of a lease, entitUng them to peace- 
able ingress and egress, and exclusive possession of the des- 
ignated seats during the performance on that particular 
evening. " 

w Burton v. Scherpf, 1 Allen (Mass.), 133, 79 Am. Deo. 717 (1861); Pup- 
ceU V. Daly, 19 Abb. N. C. (N. Y.) 301 (1886). 

19 Smith V. Leo, 92 Hun (N. Y.), 242, 36 N. Y. Supp. 949 (1895). 

20 McGowan v. Duff, 14 Daly (N. Y.), 315 (1887). 

21 93 Pa. 234 (1880). 

[222] 



Chap. XXV.] The Theatre. [§ 319. 

§ 317- How far a ticket is transferable. 

A ticket is in its nature transferable, and capable of being 
used by the holder; but the power of transferring it may be 
denied by special terms in the ticket itself, ^^ and the manager 
may by notice, publicly posted and printed on the ticket, refuse 
to accept it if bought from an unauthorized person, for instance, 
a scalper.^' 

§ 318. AccommodationB secured by the ticket. 

The purchaser of a ticket has no right to any other accom- 
modation than that given him by the ticket. Thus, though 
there is no room left in the pit, a purchaser of a ticket for the 
pit cannot enter an empty box.^* 

A regulation adopted in several States, however, gives the 
purchaser of an admission ticket the right to any seat not sold 
when the doors open.^^ Such a regulation was however held 
unreasonable and void in one case.^* 

Topic. III. Rights of Spectators. 

§ 319. The right of spectators to criticise the entertainment. 

An entertainment publicly given invites and justifies public 
criticism of its merits; but the criticism must be fair. In a 
suit for libel against a newspaper for an unfair comment upon 
a play. Lord Kenyon charged the jury that the editor of a pub- 
lic newspaper may fairly and candidly comment on any public 
entertainment, but it must be done fairly and without mahce 
or view to injm-e or prejudice the proprietor in the eyes of the 
public.^^ 

22 PureeU v. Daly, 19 Abb. N. C. (N. Y.) 301 (1886). 

23 Collister v. Hayman, 71 N. Y. App. Div. 316, 75 N. Y. Supp. 1102 (1902) ; 
PurceU V. Daly, 19 Abb. N. C. (N. Y.) 301 (1886). 

21 Lewis V. Arnold, 4 C. & P. (Eng.) 354 (1830). 

25 Cincinnati v. Brill, 7 Ohio N. P. 534, 5 Oh. S. & C. P. Deo. 566 (1900); 
Commonwealth v. Powell, 10 Phila. (Pa.) 180, 30 Leg. Int. 100 (1873). 

2» District of Columbia v. Saville, 1 McArthur (Dist. Col.), 581, 29 Am. 
Rep. 616(1874). 

27 Dibdin v. Swan, 1 Esp. (Eng.) 28 (1793). 

[ 223 ] 



§ 320.] Innkeepers. [Chap. XXV. 

§ 320. Tlie right of spectators to applaud or hiss. 

The right of the spectators to give loud and vigorous expres- 
sion to their approbation or disapprobation was much discussed 
at the beginning of the last century, when such conduct was 
common. In CUfford v. Brandon ^* the plaintiff, who sued for 
false imprisonment, had been arrested for taking part in a riot 
in the Covent Garden Theatre. The spectators, being incensed 
at the act of the manager in raising prices, made such a noise 
in the theatre that the play could not go on. Sir James Mans- 
field first directed the jury that the raising of prices was no 
excuse for the disturbance. He then added: "These premed- 
itated and systematic tumults have been compared to that 
noise which has been at all times witnessed at theatres in the 
immediate expression of the feeUngs of the audience upon a 
new piece, or the merits or defects of a particular performer. 
The cases, however, are widely different. The audience have 
certainly a right to express by applause or hisses the sensations 
which naturally present themselves at the moment ; and nobody 
has ever hindered, or would ever question, the exercise of that 
right. But if any body of men were to go to the theatre with 
the settled intention of hissing an actor, or even of damning a 
piece, there can be no doubt that such a deliberate and precon- 
certed scheme would amount to a conspiracy, and that the 
persons concerned in it might be brought to punishment." 

As time went on, and the ordinary manners of an audience 
became less boisterous, it came to be recognized that signs of 
disapprobation must at any rate be confined to peaceful acts. 
Thus, in a case where the defendants were informed against for 
a conspiracy to create a riot, and it was alleged that they had 
gone to a theatre in order to cry down an actor whom they did 
not hke, Chief Justice Bushe charged the jury as follows: "The 
rights of an audience at a theatre are perfectly well defined. 
They may cry down a play or other performance which they 
disHke, or they may hiss or hoot the actors who depend upon 
their approbation or their caprice. Even that privilege, how- 

28 2 Camp. (Eng.) 358 (1809). 
[224] 



Chap. XXV.] The Theatre. [§ 321. 

ever, is confined within its Hmits. They must not break the 
peace, or act in such a manner as has a tendency to excite 
terror or disturbance. Their censure or approbation, although 
it may be noisy, must not be riotous. That censure or appro- 
bation must be the expression of the feelings of the moment, 
for if it be premeditated by a number of persons confederated 
beforehand to cry down a performance or even an actor, it 
becomes criminal. Such are the Umits of the privileges of an 
audience, even as to actors and authors. " ^^ 

The same principle was expressed more clearly and concisely 
later by Chief Justice Tindal in Gregory v. Duke of Brunswick : ^° 
" The public who go to a theatre have the right to express their 
free and imbiased opinions of the merits of the performers who 
appear upon the stage; but have no right to go to the theatre 
by a preconcerted plan to make such a noise that an actor, 
without any judgment being formed on his performance, should 
be driven from the stage by such a scheme." 

At the present day the rights of those who go to the theatre 
to see the play, rather than to express their opinion of it, would 
no doubt be recognized; and expressions of opinion must be 
limited to such acts as would not interfere with the comfortable 
hearing of the play by others. 

Topic IV. Responsibility of the Manager. 

§321. Responsibility of the manager for tlie personal safety of the 
spectator. 
The manager of the theatre must protect his patrons from 
any personal danger from the performance, so far as such dan- 
ger can be foreseen and guarded against. So where the plain- 
tiff, while watching a shooting entertainment given by the 
defendant, was injured by being hit in the eye by a metallic 
piece which flew from the target when the bullet hit it, the 
jury was allowed to find a verdict for the plaintiff if the de- 

29 Rex V. Forbes, 1 Craw. & Dix (Ire.) 157 (1823). 

30 1 Car. & K. (Eng.) 24, 31 (1843). 

15 [225] 



§ 321.] Innkeepers. [Chap. XXV. 

fendant could have foreseen and by due care guarded against 
the danger.^^ 

The manager is responsible for an assault on a patron by his 
servant, acting in the course of his employment; as by a door- 
keeper in the effort illegally to eject a patron.^^ And the duty 
of the manager to protect the spectator probably goes further. 
He must provide servants to protect him against violence which 
can be prevented; and he is therefore responsible for any vio- 
lence inflicted from whatever cause by such servant.^^ As 
Judge Howard said in Dickson v. Waldron: '^ 

" The treatment due from a carrier to his passenger, from an 
innkeeper to his guest, and from a theatrical manager to his 
patron, while perhaps differing in degree, is similar in kind. 
. . . Common carriers, innkeepers, merchants, managers of 
theatres, and others who invite the pubUc to become their 
patrons and guests, and thus submit personal safety and com- 
fort to their keeping, owe a more special duty to those who 
may accept such invitation. Such patrons and guests have a 
right to ask that they shall be protected from injury while 
present on such invitation, and particularly that they shall not 
suffer wrong from the agents and servants of those who have 
invited them. " 

In accordance with this doctrine, the manager of an enter- 
tainment was held responsible to one of the persons present 
who was injured by a drunken man, when the manager had 
sold liquor to the latter with knowledge of his quarrelsome pro- 
pensity when drunk. ^^ 

31 Thompson v. LoweU, L. & H. St. Ry., 170 Mass. 577, 49 N. E. 913, 64 
Am. St. Rep. 323, 40 L. R. A. 345 (1898). So in a case where a spectator 
was hit by an exploding firecracker. Herrick v. Wixom, 121 Mich. 384, 
80 N. W. 117, 81 N. W. 333 (1899). 

32 Dickson v. Waldron, 135 Ind. 507, 34 N. E. 506, 35 N. E. 1 (1893); 
Fowler v. Hohnes, 3 N. Y. Supp. 816 (1889). 

33 Ante, § 172. 

3i 135 Ind. 507, 34 N. E. 506 (1893). 

36 Mastad v. Swedish Brethren, 83 Minn. 40, 85 N. W. 913, 85 Am. St. Rep. 
446, 53 L. R. A. 803 (1901). 
[226] 



Chap. XXV.] The Theatre. [§ 322. 

§ 322. Responsibility of the manager for the safety of the premises. 

The owner or manager of a theatre or other building in which 
pubUc performances are held is not an insurer of the safety of 
the building.^^ He is, however, obliged to make the place as 
little dangerous as such a place can be, having regard to the 
contrivances necessarily used in carrying on the business; and 
he is liable for any injury to a patron due to a defect which 
could have been avoided.'^ The fact that the manager em- 
ploys a competent workman or contractor to construct the 
building and make it safe will not relieve him from liability if 
it is constructed improperly, even if he is not in any re- 
spect personally negligent; he cannot escape the respon- 
sibility for providing a safe building by delegating the duty 
to another.^* 

Not only must the premises be properly constructed in the 
beginning; all reasonable care must be taken to remedy defects 
which arise during the use of the building. So where the cov- 
ering of a step on a staircase became loose, and tripped up a 
spectator who thereby suffered injury, it was held that the man- 
ager should have used reasonable diligence in finding and re- 
pairing the defect; and that a space of twenty-four hours since 

38 Dunning v. Jacobs, 15 N. Y. Misc. 85, 36 N. Y. Supp. 453 (1895). 

37 Hart V. Washington Park, 157 111. 9, 41 N. E. 620, 48 Am. St. Rep. 298, 
29 L. R. A. 492 (1895); WUliams v. Nat. C. P. Assoc. (la.), 102 N. W. 
783 (1905); Currier v. Boston Music Hall, 135 Mass. 414 (1883); Oxford v. 
Leathe, 165 Mass. 254, 43 N. E. 92 (1896); Schofield v. Wood, 170 Mass. 
415, 49 N. E. 636 (1898); Sebeck v. P. V. Verein, 64 N. J. Law, 624, 46 Atl. 
631, 81 Am. St. Rep. 512, 50 L. R. A. 199 (1900); Camp v. Wood, 76 N. Y- 
92, 32 Am. Rep. 282 (1879); Dunning v. Jacobs, 15 N. Y. Misc. 85, 36 N. Y. 
Supp. 453 (1895); Fox v. Buffalo Park, 21 N. Y. App. Div. 321, 47 N. Y. 
Supp. 788 (1897); Dunn v. Agricultural Society, 46 Ohio St. 93, 18 N. E. 
496, 15 Am. St. Rep. 556, 1 L. R. A. 754 (1888); Richmond & M. Ry. v. 
Moore, 94 Va. 493, 27 S. E. 70, 37 L. R. A. 258 (1897); Francis v. Cockrell, 
L. R. 5 Q. B. 501 (1870). 

3« Currier v. Boston Music Hall, 135 Mass. 414 (1883); Sebeck v. P. V. 
Verein, 64 N. J. Law, 624, 46 Atl. 631, 81 Am. St. Rep. 512, 50 L. R. A. 199 
(1900); Fox V. Buffalo Park, 21 N. Y. App Div. 321, 47 N. Y. Supp. 788 
(1897); Richmond & M. Ry. v. Moore, 94 Va. 493, 27 S. E. 70, 37 L. R. A. 
258 (1897); Francis v. Cockrell, L. R. 5 Q. B. 501 (1870). 

[227] 



§ 324.] Innkeepers. [Chap. XXV. 

the covering became loose was a long enough time for the man- 
ager to have acted.'* 

§ 323- Contributory negligence of the injured party- 

The injured party may, of course, be barred from recovery 
by his own contributory negligence; *" and what constitutes 
contributory negligence is a question of fact, to be decided in 
a doubtful case by the jury.^* But where the entrance to the 
building was by a Ughted hall and stairway known to the plain- 
tiff, and he left the hall and stepped through an unlocked door, 
in the dark, upon an imrailed platform from which he fell, the 
court ordered a verdict for the defendant, and this was sus- 
tained; the Supreme Court saying that the injury was so 
clearly the result of his own negUgence that the direction was 
not error.*^ 

§ 324- Responsibility of the manager for the goods of the spectator. 

The proprietor of a theatre is responsible only for the exer- 
cise of reasonable care for the protection of his patrons and 
their goods. He is not an insurer of the goods of a patron. 
Thus, where a patron hung on a hook in a box occupied by him 
certain articles of apparel which are usually laid aside when 
attending a play, and they were stolen during the perform- 
ance, the keeper of the theatre cannot be held Uable in the 
absence of evidence of negUgence.*' In the course of his 
opinion Judge Bischoff said: 

"The manager of a theatre, in the absence of a special agree- 
ment, is not, unlike an innkeeper and common carrier of goods, 
upon which classes of persons the common law, from motives 
of public policy then prevailing, imposed an extraordinary lia- 

39 Butcher v. Hyde, 10 N. Y. Misc. 275, 30 N. Y. Supp. 1073 (1894). 
i» Johnson v. Willcox, 135 Pa. 217, 19 Atl. 939 (1890). 

41 Sohofield V. Wood, 170 Mass. 415, 49 N. E. 636 (1898); Camp v. Wood, 
76 N. Y. 92, 32 Am. Rep. 282 (1879). 

42 Johnson v. WiUcox, 135 Pa. 217, 19 Atl. 939 (1890). 

"Pattison v. Hammerstein, 17 N. Y. Misc. 375, 39 N. Y. Supp. 1039 
(1896). 

[228] 



Chap. XXV.] The Theatre. [§ 324. 

bility, an insurer of his patrons' property, though the property 
may consist of apparel such as is necessarily or usually worn 
by the patrons and laid aside by them while attending the play. 
His habiUty is, at most, that of every person except innkeepers 
and common carriers of goods, and granting that the manager, 
with regard to the persons of his patrons and the particular 
property alluded to, rests under a duty to observe, by himself 
and his servants, reasonable care to insure safety for the time 
being, it remains that the record before us is woefully deficient 
in showing that the eloignment of the plaintiff's overcoat was 
attributable to neglect on the part of the defendant or any of 
his servants. Nothing appears to have been conamitted by the 
defendant, or any of his servants, that ought to have been left 
undone. Nothing was omitted that ought to have been per- 
formed. 

"The defendant, whether he be regarded as a lessor or as a 
mere Ucensor, could not reasonably be expected, without a re- 
quest to that effect, to prevent access by others than the plain- 
tiff's party to their box while the latter were present therein. 
How was he to know that such others were not friends or ac- 
quaintances, or their presence otherwise agreeable to all or 
some one of the plaintiff's party? Nor could he be reasonably 
expected to eject persons other than members of the plaintiff's 
party while none of the latter protested against the presence 
of such other persons." 

In answer to the contention that the placing of hooks for 
outer garments in the box was in invitation to the occupant 
to give such garments into the manager's care, the learned 
judge said: 

"There was no invitation to the plaintiff, express or implied, 
held out by the defendant, that the former should yield his 
personal vigilance even for a moment. The hooks provided 
by the defendant were a means of enabling the occupants of 
the box to care for their apparel with greater ease and comfort 
to themselves, but an effort to imply from the mere presence 
of such hooks an assumption by the defendant of the custody 

[229] 



§ 325.] Innkeepers. [Chap. XXV. 

of whatever the occupants of the box might place thereon tor- 
tures reason." 

Topic V. Licenses. 

§ 325. The reqiiirement of a license. 

The question whether the licensing power may be controlled, 
or has unlimited discretion, has already been considered. The 
power to grant a hcense involves the power to exact a hcense 
fee.^* It seems that a license need not be contained in a written 
document, in the ordinary form, but may be by parol; ^^ but 
a mere statement by the licensing board that they would not 
grant a hcense, but should not object to the entertainment so 
long as it was proper, is not a hcense.^® 

It does not come within the scope of this chapter to examine 
at length the hcensing acts of the several States, and the in- 
terpretations put upon them by the courts. Some of the de- 
cisions will be found in the notes.^^ 

■1* Boston V. Schaffer, 9 Pick. (Mass.) 415 (1830). 

« Boston V. Schaffer, 9 Pick. (Mass.) 415 (1830); but see Simpson v. Wood 
105 Mass. 263 (1870). 

" Simpson v. Wood, 105 Mass. 263 (1870). 

*' Alabama. Offering a hall for rent to dramatic companies is not carry- 
ing on the business of keeping a theatre, at least where it does not appear to 
have been rented. Gillman v. State, 55 Ala. 248 (1876). An exhibition 
of feats of ledgerdemain is not covered by a license to run a theatre. Jacko 
V. State, 22 Ala. 73 (1853). A public exhibition must be licensed, though it 
is conducted gratuitously. Pike v. State, 35 Ala. 419 (1860; but see Lou- 
isiana) . 

Louisiana. A gratuitous exhibition need not be licensed. State v. Lun- 
die, 47 La. Ann. 1596, 18 So. 636 (1895; but see Alabama). The owner of 
the building, which is leased and managed by another, need not pay a li- 
cense. State V. French Opera Assoc, 107 La. 284, 31 So. 630 (1902). 

Iowa. A skatingrink is not a "place of public amusement" requiring a 
license. Bowlin v. Lyon, 67 la. 536, 56 Am. Rep. 355, 25 N. W. 766 (1885). 

Massachusetts. What is a "place of public amusement." See Common- 
wealth V. Gee, 6 Gush. 174 (1830; dancing school is not); Commonwealth 
V. Bow, 177 Mass. 347, 58 N. E. 1017 (1901; merry-go-round is). Where 
a place of public amusement is conducted gratuitously, it must nevertheless 
be licensed. Commonwealth v. Colton, 8 Gray, 488 (1857). 

Minnesota. A license fee of $125, for six months for theatrical perform- 

[230] 



Chap. XXVI.] Other Public Houses. [§ 331. 



CHAPTEK XXVI. 

OTHER PUBLIC HOUSES. 

§ 331. Lodging houses. | } 383. Bath houses. 

332. Extent of liability. 

§331. Lodging houses. 

The keeper of a lodging house has even less control and re- 
sponsibility than the keeper of a boarding house; and it seems 
clear that he is imder no duty to care in any way for the safety 
of his lodger's goo'ds. His liability was carefully considered 
and so determined in the case of Holder v. Soulby.^ In the 

ances is not unreasonable. City of Duluth v. Marsh, 71 Minn. 248, 73 N. W. 
962 (1898). 

New York. As to what exhibitions must be licensed, see New York v. 
Eden Musee, 102 N. Y. 593, 8 N. E. 40 (1886; concert on stage must be); 
People V. Royal, 23 N. Y. App. Div. 258, 48 N. Y. Supp. 742 (1897; free 
exhibition of tricks to attract purchasers for goods to be sold need not); 
People V. Campbell, 51 N. Y. App. Div. 565, 65 N. Y. Supp. 114 (1900; 
piano played in liquor saloon need not). 

Pennsylvania. Outside Philadelphia and Pittsburg it is the business, not 
the house, that is to be licensed. Commonwealth v. Keeler, 3 Pa. Dist. R. 
158 (1893). If the manager pays the license, this protects all actors playing 
in his troupe, though the personnel be changed. Commonwealth v. Reif- 
snyder, 14 Pa. Co. Ct. 353, 3 Pa. Dist. R. 193 (1894). The owner of the 
building, who is not the manager of the performance, need not take out a 
license, Hayes v. Opera House Co., 139 Pa. 636, 22 Atl. 647 (1891), but be- 
tween themselves the parties may agree that the owner of the building shall 
take out the license, Gandy v. Oellers, 39 Wkly. Notes Cas. 438 (1897), and 
in that case the license protects the manager. Green v. Kousins, 3 Pa. Dist. 
R. 302 (1894). The Ucense must be renewed annually, and one Ucense will 
cover performances at only one place at once. Nurdlinger v. Irvine, 18 

1 8 C. B. N. S. 254 (Eng. 1860). 

[231] 



§331.] Innkeepers, [Chap. XXVI. 

course of his opinion in that case €hief Justice Erie said: 
"The reason why the law makes an innkeeper Uable for the loss 
of his guest's goods in olden times was [is?] that the wayfaring 
guest has no means of knowing the neighborhood or the char- 
acters of those he may meet with at the inn. It was therefore 
thought right to cast that duty on the host. Knowing that 
this is one of the Uabilities he iilcurs, the innkeeper can make 
such charge for the entertainment of his guests as will compen- 
sate him for the risk; and it may be observed that unless the 
law cast upon him this burthen, a dishonest innkeeper might 
be tempted to take advantage of a wealthy traveller. None of 
these reasons can apply to the case of a lodging-house keeper; 
and the law has never been so laid down. Although it has not 
been contended that there is any absolute duty on the part of 
the keeper of a lodging house to take care of a lodger's goods, 
it is said that it is his duty to take such due and proper care of 
them as a prudent owner might reasonably be expected to take 
of his own goods, and that the defendant has failed in the per- 

Wkly. Notes Cas. 65 (1886). A license is not required for an amateur per- 
formance, though an admission fee is charged, because the Ucense is the reg- 
ulation of a trade or business. OeUers v. Horn, 3 Pa. Super. Ct. 537, 39 
Wkly. Notes Cas. 559 (1896; but see England). 

Tennessee. A license issued for a theatre protects travelling companies 
performing in it. Taxing District v. Emerson, 4 Lea (Tenn.), 312 (1880). 

Texas. What constitutes a variety show. See Ex parte Bell, 32 Tex. Cr. 
R. 308, 22 S. W. 1040, 40 Am. St. Rep. 778 (1893). 

Washington. A public dance is a public amusement. Pearson v. Seattle, 
14 Wash. 438, 44 Pac. 884 (1896). 

England. A building used for charitable performances only must be li- 
censed. Shelley v. Bethell, 12 Q. B. D. 11 (1883; but see Pennsylvania). 

What is a place of dancing and music. See Clarke v. Searle, 1 Esp. 25 
(1793); Bellis v. Burghall, 2 Esp. 722 (1799); Bellis v. Beal, 2 Esp. 592 
(1798); Archer v. Willingrice, 4 Esp. 186 (1802); Shutt v. Lewis, 5 Esp. 128 
(1804). See Rex v. Handy, 6 T. R. 286 (1795; tumbling is not "an enter- 
tainment of the stage"); Regina v. Tucker, 2 Q. B. D. 417 (1877; a skating 
rink where persons skate to music is an "entertainment of like kind to music 
and dancing"). A portable booth used as a theatre is not a "tenement" 
used for entertainment, Fredericks v. Howie, 1 H. & C. 381 (1862), or a 
"house" for that purpose, Davys v. Douglas, 4 H. & N. 180 (1859), but it 
is a "place" so used. Fredericks v. Payne, 1 H. & C. 584 (1862). 
[232] 



Chap. XXVI.] Other Public Houses. [§331. 

formance of this duty on the present occasion. I am most 
particularly averse from affirming for the first time the propo- 
sition that a lodging-house keeper has a duty cast upon him 
by law to take care of his lodger's goods. I foresee great diffi- 
culties in so holding; and I think it would be casting upon him 
an undefined responsibility which would be most inconvenient. 
Considering that lodgers consist of persons of all classes, — the 
highest as well as the lowest, — one can hardly exaggerate the 
mischief which would ensue from holding that the lodging- 
house keeper was responsible for the safety of his lodger's 
goods. It would be impossible to lay down any definite test 
of this Hability: each case must be left to the discretion or the 
caprice of the jury. The habits of a lodging-house keeper must 
vary according to the situation of the premises, and a variety 
of other circumstances. At watering places, for instance, it 
would be exceedingly inconvenient if the doors were kept locked 
all day. So, in seaport towns, where lodgers come suddenly 
and depart at short notice, the duty contended for here would 
be most preposterously onerous. If, on the other hand, the 
law is that the lodger must take care of his own goods, it only 
imposes upon him the same care that he is bound to take as 
he walks the streets. He may always secure his valuables by 
carrying them about with him or by placing them specially in 
the custody of the keeper of the house." 

In his opinion in the same case Judge Byles said: "If the 
lodger be robbed by a servant of the lodging-house keeper, the 
latter is not responsible for it. That is consistent with prin- 
ciple as with authority. There is no contract on the part of 
the lodging-house keeper to take care of his lodger's goods; nor 
is there any bailment; and there is no precedent for the impo- 
sition of such a liability upon him. ... I have chambers 
in an inn of court, or rooms in a college; if I am robbed, can 
I charge the benchers or the trustees because they or other 
servants have neglected to keep the outer gate locked, or have 
permitted dishonest persons to enter? Surely not. There is 
no sound distinction between the two cases." 

[233] 



§ 333.] Innkeepers. [Chap. XXVI. 

§ 332. Extent of liability. 

But though not liable as a bailee for the lodger's goods, the 
lodging-house keeper is, it seems, under a duty to keep reason- 
able watch over the house and its contents; and the case of 
Holder v. Soulby must in this respect be limited. It was 
criticised in the recent case of Scarbrough v. Cosgrove.^ In 
the later case Sir Richard Collins, Master of the Rolls, saw no 
difference in principle between the boarding-house keeper and 
the lodging-house keeper; and as to the latter said: "The 
general control of the house must be in the keeper. By the 
nature of the arrangement itself the custody of the lodger's 
effects must be in him when the lodger is not in his room, and 
the consideration paid ought as a matter of business to secure 
some protection for the lodger where the ordinary conditions 
to which he is expected to conform put it out of his own power 
to look after his effects himself. I can see no reason why there 
should be a presumption of immunity in his case from the 
common duty of a person accepting a charge to exercise at 
least ordinary care; a fortiori where he undertakes it for re- 
ward. The guest and baggage are both in a house of which 
he has the control, and his obligations to both of them arise 
in the same way out of the relation itself." 

§333. Bathhouses. 

The keeper of a bath house may take the goods of a bather 
on deposit, in which case he is of course liable as an ordinary 
bailee. If he does not take the goods himself, he must use 
such vigilance as the nature of the case demands for the pro- 
tection of the goods of the bather.^ So it was held that the pro- 
prietor of a five-cent bathing house, having a bathing tank 
used in common by all customers, and under the general super- 
vision of a manager, who patrolled the place, was not liable to 
a regular weekly bather, who placed his clothes, as usual, upon 
a bench in the bathing room, for the loss of jewelry and money 

2 [1905] 2 K. B. 805. See also Swann v. Smith, 14 Daly (N. Y.) 114 (1887). 

3 Tombler v. Koelling, 60 Ark. 62, 28 S. W. 795 (1894). 

[234 J 



Chap. XXVI.] Other Public Houses. [§ 333. 

which he left in his clothes while he was taking a bath; that, 
under the circumstances, the proprietor had fully performed 
such duties towards his customers as he had imdertaken to 
perform; and that, moreover, the failure of the bather to de- 
posit his valuables with the proprietor, as he might have done 
and had done before, constituted contributory negligence on 
his part.* On the other hand, in the case of the proprietor of 
a Russian and Turkish bathing estabhshment it appeared that 
while the plaintiff was absent from the room assigned to him 
for the purpose of disrobing, and in the bath in another part 
of the estabhshment, his apparel left in the room assigned to 
him was in defendant's keeping; that the assignment of the 
room for the purpose of disrobing was, in effect, a representa- 
tion by the defendant that he would assume the custody of 
plaintiff's apparel at that place; that having received the sum 
demanded of plaintiff for the privilege of the bath, and assumed 
the custody of plaintiff's apparel while the latter was enjo3dng 
the privilege, defendant became a voluntary custodian of plain- 
tiff's apparel for profit, and was bound to exercise due care to 
guard it against loss or theft by others having access to de- 
fendant's estabhshment with his permission; and that the loss 
or theft of plaintiff's overcoat could have been prevented if 
defendant had, in view of the indiscriminate admission of per- 
sons to his estabhshment, employed one or more competent 
persons to guard against such occurrences. On these circum- 
stances the proprietor was held hable.^ 

4 Schneps v. Strum, 25 N. Y. Misc. 168, 54 N. Y. Supp. 140 (1898). 
6 Bird V. Everard, 4 N. Y. Misc. 104, 23 N. Y. Supp. 1008 (1893). 



[235] 



§ 341.] 



Innkeepers. 



[Chap. XXVII. 



TITLE YII. 
SLEEPING CARS. 
CHAPTER XXVII. 

DUTY TO SERVE PASSENGERS. 



341. Sleeping car not an inn. 

342. Sleeping car company not a 

carrier. 

343. Sleeping car company must 

serve the public. 

344. Right of an applicant to a 

berth. 

345. Right to occupy an entire sec- 

tion. 

346. What berths are vacant; res- 

ervation of berths. 



§ 347. No duty of company to grant 
reservation. 

348. Reservation by ticket. 

349. Reservation of berths for way 

stations. 

350. Failure of reserving passen- 

ger to occupy. 

351. Duty to put on extra car. 

352. Right to compensation. 



§ 341. Sleeping^ car not an inn, 

A sleeping car is a place for the reception and entertain- 
ment of travellers, but it is not an inn.^ It differs from an 
inn in many important particulars.^ In brief, the inn affords 
necessary protection and accommodation to travellers while 
they rest from their journey; the sleeping car offers a single 
accommodation — a bed — to passengers while they continue 
their journey. The sleeping car does not afford needed per- 
sonal protection — the carrier is obliged to protect the passenger 
even if he rides in the ordinary coach. Nor does the sleeping 
car afford entertainment; the passenger may get his meals 
on the train in a dining car, or even in the sleeping car 

1 Ante, § 37. 

2 Blum V. Southern P. P. C. Co., 1 Flip. 500, Fed. Cas. No. 1,574 (1876). 

[236] 



Chap. XXVIL] Duty to Serve Passengers. ['§ 342. 

itself, from a buffet, but this is not a necessary part of the 
imdertaking of the car company. It is the duty of the carrier, 
not of the car company, to provide facilities for meals. Fur- 
thermore, the sleeping-car company does not undertake to 
serve all travellers, but only those whom the carrier will allow 
to ride in the car. For these reasons the sleeping car is almost 
universally held not to be an inn.^ 

§ 342. Sleeping car company not a carrier. 

The sleeping car company is not a carrier of passengers. 
It provides, to be sure, a vehicle for them to ride in, and ac- 
commodations for their comfort while riding; but the railroad 
company and not the car company undertakes and is responsi- 
ble for the transportation, and has entire charge of the joxirney. 
If the journey is unduly delayed or interrupted or the train 
meets with an accident whereby the passenger is injured, the 
fault is with the railroad company alone. It is accordingly 
almost universally held that a sleeping-car company is not a 
common carrier.^ Therefore, the sleeping-car company is not 

3 Blum V. Southern P. P. C. Co., 1 Flip. 500, Fed. Cas. No. 1,574 (1876); 
Pullman P. C. Co. v. Adams, 120 Ala. 581, 24 So. 921, 74 Am. St. Rep. 53, 
45 L. R. A. 767 (1898); Pullman P. C. Co. v. Freudenstein, 3 Col. App. .540, 
34 Pac. 578 (1893); Pullman's P. C. Co. v. Hall, 106 Ga. 765, 32 S. E. 923, 
71 Am. St. Rep. 293 (1899); Pullman P. C. Co. v. Smith, 73 111. 360, 24 Am. 
Rep. 2.58 (1874); Woodruff S. & P. C. Co. v. Diehl, 84 Ind. 474, 43 Am. 
Rep. 102 (1882); Whicher v. Boston & A. R. R., 176 Mass. 275, 57 N. E. 
601 (1900); Illinois C. R. R. v. Handy, 63 Miss. 609, 56 Am. Rep. 846 (1886); 
Welch V. Pullman P. C. Co., 16 Abb. Pr. N. S. (N. Y.) 352 (1874); Tracy 
V. Pullman P. C. Co., 67 How. Pr. (N. Y.) 154 (1884); Welding v. Wagner, 
1 City Ct. Rep. (N. Y.) 66 (1878); Fall River & M. Co. v. Pullman P. C. 
Co., 6 Ohio Dec. 85 (1896); Pullman P. C. Co. v. Gardner, 3 Penny. (Pa.) 
84, 14 W. N. C. 17 (1883); Pullman P. C. Co. v. Gavin, 93 Tenn. 53, 23 S. W. 
70, 42 Am. St. Rep. 902, 21 L. R. A. 289 (1893); Dargan v. PuUman P. C. 
Co., 2 WUls. (Tex.) § 691 (1885). In one or two cases, however, a sleeping 
car has been held to be an inn. Pullman P. C. Co. v. Lowe, 28 Neb. 239, 
44 N. W. 226 (1889); Sise v. PuDman P. C. Co., 1 Quebec Super. Ct. 9 (1892). 

4 Blum V. Southern P. P. C. Co., 1 Flip. 500, Fed. Cas. No. 1,574 (1876); 
Lemon v. Pullman P. C. Co., 52 Fed. 262 (1892); Pulhnan P. C. Co. v. 
Adams, 120 Ala. 581, 24 So. 921, 74 Am. St. Rep. 53, 45 L. R. A. 767 (1898); 
Pullman P. C. Co. v. Freudenstein, 3 Col. App. 540, 34 Pac. 678 (18931: 

[ 237 ] 



§ 343.] Innkeepers. [Chap. XXVII. 

responsible for the act of a raihoad company over which its 
cars are scheduled to run in failing to run trains ® or in un- 
reasonable delay in running its trains; * nor is it liable for the 
wrongful expulsion of the passenger from the train by the 
servants of the raihoad.'' 

§ 343. Sleeping car company must serve the public. 

Though neither an innkeeper nor a carrier, the sleeping-car 
company is engaged in an analogous public employment, and 
must serve such members of the pubUc as are within the class 
which it undertakes to serve.* As Mr. Justice Mulkey said 
in Nevin v. Pullman Palace Car Company:* "The running of 
these sleepers has become a business and social necessity. 
Such being the case, can it be maintained the law imposes no 
obligations or restrictions on this company in the discharge 
of its duties to the pubHc? Or, more accurately put, is it 
true that this company owes no duties to the public except 
such as are due from one mere private person to another? 

Pullman's P. C. Co. v. Hall, 106 Ga. 765, 32 S. E. 923, 71 Am. St. Rep. 293 
(1899); Pullman P. C. Co. v. Smith, 73 111. 360, 24 Am. Rep. 258 (1874); 
Woodruff S. & P. C. Co. v. Diehl, 84 Ind. 474, 43 Am. Rep. 102 (1882); 
Pullman P. C. Co. v. Gaylord, 9 Ky. L. Rep. 58 (1887); Whitney v. Pull- 
man's P. C. Co., 143 Mass. 243, 9 N. E. 619 (1887); Dawley v. Wagner P. C. 
Co., 169 Mass. 315, 47 N. E. 1024 (1897); Scaling v. Pulhnan P. C. Co., 
24 Mo. App. 29 (1886); Tracy v. Pullman P. C. Co., 67 How. Pr. (N. Y.) 
154 (1884); Welding v. Wagner, 1 City Ct. Rep. (N. Y.) 66 (1878); Pfaelzer 
V. PuUman P. C. Co., 4 W. N. C. (Pa.) 240 (1877); PuUman P. C. Co. v. 
Gardner, 3 Penny. (Pa.) 84, 14 W. N. C. 17 (1883); Pullman P. C. Co. v. 
Gavin, 93 Tenn. 53, 23 S. W. 70, 42 Am. St. Rep. 902, 21 L. R. A. 289 (1893). 
The contrary is stated in Pullman P. C. Co. v. Pollock, 69 Tex. 120, 5 Am. 
St. Rep. 31 (1887). In Mississippi a sleeping-car company is declared a 
common carrier by the constitution. PuUman P. C. Co. v. Lawrence, 74 
Miss. 782, 22 So. 53 (1897). 

sSimms v. PuUman S. C. Co., Fed. Cas. No. 12,869o (1878). 

8 Pfaelzer v. Pullman P. C. Co., 4 W. N. C. (Pa.) 240 (1877). 

'PuUman P. C. Co. v. Lee, 49 lU. App. 75 (1892). 

8 Searles v. Mann B. C. Co., 45 Fed. 330 (1891); Nevin v. Pullman P. C. 
Co., 106 lU. 222, 46 Am. Rep. 688 (1883); PuUman P. C. Co. v. Lawrence, 
74 Miss. 782, 22 So. 53 (1897); Pullman P. C. Co. v. Booth (Tex. Civ. 
App.), 28 S. W. 719 (1894). 

8 Supra, 

[238] 



Chap. XXVIL] Duty to Serve Passengers. [§ 344. 

Can it be possible that the common carrier, the ferryman, the 
innkeeper, and even the blacksmith on the roadside, are all, 
by mere force of law, placed under special obligations and 
duties to the pubHc which they are bound to observe in the 
exercise of their respective calHngs, while, at the same time, 
this company is entirely relieved from the observance of all 
such duties and obligations which are not expressly contracted 
for? We think not. To so hold would be to imjustly dis- 
criminate between parties similarly situated, and make the 
law inconsistent with itself, to the great detriment of the 
public. If, then, this company owes any duties to the com- 
munity by reason of its relation to the public, as we hold it 
does, manifestly one of them is, that it shall treat aU persons 
whose patronage it has sohcited with fairness, and without 
unjust discrimination. When, therefore, a passenger who, 
under the rules of the company, is entitled to a berth upon 
payment of the usual fare, and to whom no personal objection 
attaches, enters the company's sleeping car at a proper time 
for the purpose of procuring accommodations, and in an orderly 
and respectful manner applies for a berth, offering or tender- 
ing the customary price therefor, the company is bound to 
furnish it, provided it has a vacant one at its disposal." 

§ 344. Right of an applicant to a berth. 

Accordingly, it is a legal wrong for the company to refuse 
to furnish a berth to a proper person upon his application, if 
it has an empty berth." The question whether the apphcant 
is a -proper person must be settled by the carrier. "It was the 
privilege of the railroad company, by its agents, to determine 
who should occupy seats on its trains, and that included the 
Pullman car, and to determine whether a party had paid the 
proper amount, and was entitled to travel on the train to which 
it was attached. Thus, the agent was then in a dual capacity, 
as acting for the railroad and for the car company at the same 

w Lemon v. Pullman P. C. Co., 52 Fed. 262 (1892) ; Nevin v. Pullman 
P. C. Co., 106 lU. 222, 46 Am. Rep. 688 (1883). 

[239] 



§ 345.] Innkeepers. [Chap. XXVII. 

time. It was not the privilege of the agent of the car com- 
pany to sell a berth to any party unless he had a first-class 
ticket on the railroad, or a ticket which entitled him to travel 
in the Pullman car or in a first-class car." " Thus, as in the 
case last quoted, the carrier may and cormnonly does require 
that no one but a passenger entitled to first-class accommo- 
dations shall ride in a parlor or sleeping car.'^ So the carrier 
may require that no one shall ride in such a car except a pas- 
senger having a through ticket; and a car company may 
justify itself by such a requirement of the carrier for a refusal 
to receive a passenger riding on a split ticket.^* "The defend- 
ant company could only contract with a passenger when he 
was of such a class that the railroad company permitted the 
contract to be made." ^* 

§ 345. Right to occupy an entire section. 

The question remains whether a car company may sell a 
whole section to a single applicant, and justify the refusal to 
supply the upper berth, unused by the purchaser, to a pas- 
senger applying for it later. There is not much direct au- 
thority upon this question; but there are obviously cases 
where the right to a whole section might properly be given to 
a passenger; as, for instance, to a woman or a sick person. 
The case is of course stronger when the upper berth demanded 
by the applicant is in a separate room, like a drawing-room or 
stateroom; and in that case it has been held that the com- 
pany may sell the whole room to a single applicant." No 
authority has been found where the upper berth demanded 
was in an ordinary open section in the car; but the same 
decision would probably be given in such a case. 

11 Hill, Dist. J., in Lemon v. Pullman P. C. Co., supra. 

12 Lemon v. Pullman P. C. Co., 52 Fed. 262 (1892); Pullman P. C. Co. v. 
Lee, 49 lU. App. 75 (1893). 

13 Lawrence v. Pullman's P. C. Co., 144 Mass. 1, 10 N. E. 723, 59 Am. 
Rep. 58 (1887). 

" Devens, J., in Lawrence v. Pullman's P. C. Co., supra. 
" Searles v. Mann B. C. Co., 45 Fed. 330 (1891). 

[240 ] 



Chap. XXVIL] Duty to Serve Passengers. [§ 348. 

§ 346. What berths are vacant ; reservation of berths. 

It may sometimes be difficult, owing to the practice of re- 
serving berths, to determine whether the company has a va- 
cant berth which it must give to an appUcant. If a berth is 
neither occupied nor under reservation, it must obviously be 
given to the proper applicant. But it is the custom to reserve 
berths in advance for applicants in the order of appUcation. 
Where a berth is so reserved, whether by contract or by the 
issuing of a berth ticket, the person for whom it is reserved 
has a right to occupy it, and another applicant, even if he 
actually enters the car and demands it before the person for 
whom it is reserved appears, has no right to it.^* 

§ 347. No duty of company to grant reservation. 

While the company may reserve a berth and justify a re- 
fusal to give the berth later to another, it is under no obliga- 
tion to grant a reservation to one demanding it. This was 
held in a case where an applicant found aU the berths occupied, 
but one was to be vacated at the next station; he then de- 
manded of the conductor a ticket for this berth from that 
station to his destination. The conductor refused to sell him 
such a ticket, and the refusal was held justified, the court 
saying: "While the conductor might have sold to plaintiff a 
ticket entitling him to the use of this berth from Birmingham 
to Cincinnati before reaching the former place, he was not 
under any obligation to do so." " It would follow that upon 
the berth being vacated the conductor, not having consented 
to reserve it, must sell it to the first applicant, whether the 
former applicant or another. 

§ 348. Reservation by ticket. 

The ordinary method of reserving a berth is by purchasing 
a ticket for the berth. Such a ticket seems to be transferable, 

16 Mann B. C. Co. v. Dnpre, 54 Fed. 646, 21 L. R. A. 289 (1893); Pull- 
man P. C. Co. V. Booth (Tex. Civ. App.), 28 S. W. 719 (1894). 
" Searles v. Mann B. C. Co., 45 Fed. 330 (1891). 

16 [ 241 ] 



§ 350.] Innkeepers. [Chap. XXVII. 

and good in the hands of a transferee who has the proper rail- 
road ticket.^* 

§ 349. Beservation of berths for way stations. 

It is a common practice of sleeping car companies to re- 
serve a certain number of sections for way stations, and even 
if all berths not so reserved are full an applicant at the place 
of departure of the train will not be given one of the reserved 
berths tintil the train arrives at the way station and the pas- 
sengers at that point are suppUed. This seems to be a rea- 
sonable regulation, provided no more than the fair proportion 
of berths are so reserved. If this were not allowed, passengers 
at way stations would be at serious disadvantage by reason 
of the earlier opportunity of passengers at prior stations to 
occupy the berths. 

§ 350. Failure of reserving passenger to occupy. 

While a car company may lawfully reserve berths for in- 
tending passengers, it must be clear that they cannot thereby 
give a greater accommodation to the intending passenger than 
they could give one who appeared in person at the station 
and there paid for his berth. As no passenger could engage 
more than a single section, and could engage that only if he 
actually occupied it, so an intending passenger can reserve no 
more; and if he does not appear to occupy the berth reserved 
for him, another apphcant may have it. 

A somewhat similar problem is presented when a berth has 
been reserved for a passenger who intends to take the train 
at a way station, and a person on the train demands the right 
to occupy the berth until that station is reached. Unless 
there is some special inconvenience in doing so, the car 
company would seem to be obliged to allow the applicant 
to use the berth until it is needed for the person who has 
engaged it. 

18 Pullman P. C. Co. v. Reed, 75 111. 125, 131, 20 Am. Bep. 232 (1874); 
Curlander v. Pullman P. C. Co. (Md.), 28 Chicago Leg. News 68 (1895). 
[242] 



Chap. XXVII.] Duty to Serve Passengers. [§ 352. 

§ 351. Duty to put on extra car. 

Whether a car company may be obliged, in case of an unex- 
pectedly large demand for berths, to put on an extra car, 
provided one is available and the carrier will permit it, is a 
matter of some doubt. The car company cannot attach an- 
other car to the train except by consent of the railway com- 
pany; but assuming. such consent, it may be argued that the 
car company is able to supply the demand for berths, and 
therefore should do so. On the other hand, it may be argued 
that the car company, hke the innkeeper, provides certain 
cars' on certain trains in which to carry on its business, and 
that its imdertaking is to receive passengers in such cars only. 
In the absence of authority on this point the question must 
be left in doubt. 

§ 352. Bight to compensation. 

It must be clear that hke any other person performing a 
public service the car company is entitled to demand reason- 
able compensation as a condition of extending its accommo- 
dation to the apphcant; and that this compensation is in 
addition to the fare paid to the carrier.^* In a New York 
case ^" it was held that a passenger who could find no seat 
in the ordinary passenger coaches might demand a seat in a 
parlor car without extra charge. However that may be when 
the car is owned by the carrier ^^ it is clear to-day that even 
under such circumstances a passenger cannot without paying 
extra compensation demand a seat in a parlor or sleeping car 
belonging to an independent car company. The New York 
decision must be regarded as obsolete upon this point; and 
it is to be noticed that even in that case action was not brought 
against the car company for refusal to furnish a seat, but 
against the carrier for the ejection of its passenger from the 
only part of the train in which he could get a seat. 

w St. Louis, A. & T. Ry. v. Hardy, 55 Ark. 134, 17 S. W. 711 (1891). 

20 Thorpe v. New York C. & H. R. E. R., 76 N. Y. 402, 32 Am. Rep. 
325 (1879). 

21 See on this point some of the language used in St. Louis A. & T. Ry. 
V. Hardy, supra. [ 243 ] 



§ 362.] 



Innkeepers. 



[Chap. XXVIII. 



CHAPTER XXVIII. 

RESPONSIBILITY FOR THE SAFETY AND COMFORT OF THE 

PASSENGER. 



361. Duty to provide appliances. 

362. Appliances for convenient use 

ot upper berth. 

363. Warming and ventilating the 

car. 

364. Providing berth for which 

ticket has been issued. 

365. Providing berth throughout 

the journey. 

366. Excuse for ejecting passenger. 

367. Right of company to change 

berth. 

368. Who may occupy berth. 



369. Making up berth. 

370. Duty to awaken passengers. 

371. Regulations. 

372. Safety of the car. 

373. Protection of passengers. 

374. Injury by servant of the com- 

pany. 

375. Cumulative liability of the 

carrier. 

376. Duty of the passenger to take 

care of the berth. 

377. Right of the passenger to as- 

sign or exchange berth. 



§361. Duty to provide appliances. 

The duty of the car company is obviously to have a safe 
and comfortable car, fitted up with all reasonable appliances 
for the safety and comfort of the passenger, "such supphes 
and conveniences as are usually found in hke sleepers, and 
are necessary to the health and comfort of passengers." ' 

§ 362. Appliances for convenient use of upper berth. 

The upper berth is a difficult, and under some circumstances 
dangerous, place to get in and out; and the car company must 
take care accordingly. For any injury caused by improper 
speed or jerking in running the train the carrier and not the 
car company is of course hable; ^ but anything which the car 

iNevin v. Pullman P. C. Co., 106 111. 222, 46 Am. Rep. 688 (1883). 
2 Pullman's Palace Car Co. v. Fielding, 62 111. App. 577 (1896); Smith 
V. Canada Pac. R. R., 34 N. Sco. 22 (1901). 
[244] 



Chap. XXVIII.] Safety and Comfort of Passenger. [§ 363. 

company can reasonably do to assist passengers in the upper 
berths, such as providing call-bells and steps, it must do. 
" If it furnishes upper berths, which common observation and 
experience teaches are difficult, if not dangerous, to alight from 
when the car is in rapid motion, it is not carrjong its obliga- 
tion any too far to require it to have steps, as it usually does, 
or other mechanical contrivances, to assist in that act. And 
having steps it is necessary, if they are movable, as is the 
custom, that servants be employed to bring them to the aid 
of the passenger, and in the night time such servants should 
be alert and awake, ready to respond to the ring of the bell 
provided to caU them. It is not alone the undertaking of 
such a company to provide the bed to sleep in, but also rea- 
sonably safe means of getting into and out of the bed. . . . 
The company by providing bells for that purpose, held out a 
notice that the bells would be responded to when nmg, whether 
the passenger be sick- or well." ^ In the case in which this 
opinion was dehvered a passenger who was thrown from an 
upper berth and injured, in trying to descend after having 
vainly rung the bell to summon the porter, was allowed to 
recover damages from the car company. 

§ 363. Warmings and ventilating the car. 

The car company must furnish a comfortably warm car. 
This, however, does not mean that the car must bev warmed 
to just the temperature and ventilated to just the degree de- 
sired by any particular passenger. The car company owes 
to any passenger a duty in this respect no less important than 
that owed to each of the others; and "considering the vary- 
ing predisposition towards heat and cold, and the exacting 
demands of passengers generally," it is not usually necessary 
to comply with the particular demands of any one passenger.** 
So long as the warmth and ventilation are reasonably suited 

3 Shepard, J., in Pullman's Palace Car Co. v. Fielding, 62 HI. App. C77, 
579 (1896). 
* Hughes V. Pullman's P. C. Co., 74 Fed. 499 (1896). 

[245] 



§ 364.] Innkeepers. [Chap. XXVIII. 

to the average man, the company is probably complying with 
its duty. 

It is not negligence. to leave a ventilating window open at 
night, even if rain got in and wet the occupant of the upper 
berth, where he might have closed it himself, and where the 
porter would always open or close such window at the request 
of the occupant of an upper berth and he made no such 
request.^ 

§ 364. Providing berth for which ticket has been issued. 

If for any reason a berth or seat which has been sold to a 
passenger is not furnished to him, he is entitled to recover 
all the damages thereby caused, including the discomfort 
suffered from it.** If the passenger loses his berth ticket, but 
brings written evidence from the agent that he is entitled to 
the seat, it would seem to be the company's duty to let the 
purchaser occupy the seat without further payment.'' If, to 
be sure, the ticket is presented by another person, and the 
company has no reason to refuse to honor it, the original 
purchaser must lose his right; but the mere loss of the ticket, 
which is not presented by anyone else, ought to cause for- 
feitm-e of the right only so far as the reasonable methods of 
business of the company require it. The unsupported state- 
ment of the purchaser may not be received, because it cannot 
be used as a voucher by the conductor; but the written state- 
ment of the agent who has sold the ticket and is accoimtable 
for the money paid ought to be received. The case is entirely 
different from that of the loss of a railroad ticket. The rail- 
road ticket ordinarily entitles the holder to no particular ac- 

5 Edmimdson v. Pullman Palace Car Co., 92 Fed. 824 (1899). 

8 Nevin v. Pullman P. C. Co., 106 111. 222, 46 Am. Rep. 688 (1883); Buck 
V. Webb, .58 Hun (N. Y.), 185, 11 N. Y. Supp. 617 (1890); Braun v. Webb, 
32 N. Y. Misc. 243, 65 N. Y. Supp. 668 (1900); Pullman Palace Car Co. v. 
Nelson, 22 Tex. Civ. App. 223, 54 S. W. 624 (1899); Pullman P. C. Co. v. 
Booth (Tex. Civ. App.), 28 S. W. 719 (1894); Nash v. Copeland, 4 New 
So. Wales W. N. 41. 

'Pullman P. C. Co. v. Reed, 75 111. 125, 20 Am. Rep. 232 (1874); Buck 
V. Webb, .58 Hun (N. Y.), 185, 11 N. Y. Supp. 617 (1890). 
[246] 



Chap. XXVIII.] Safety and Comfort of Passenger. [§ 365. 

coiamodation, but on the other hand it may be presented 
whenever the holder chooses. The berth ticket, on the other 
hand, entitles the holder to a particular berth on a particular 
train, and if it is not then presented it is of no value. 

§ 365. Providing berth throughout the journey. 

The passenger who is provided with a berth during a certain 
journey is entitled not only to have the berth prepared for 
him, but also to keep that or another equally good berth 
throughout the journey. This becomes a contractual obliga- 
tion of the car company, to which it may be held although the 
railroad company has entire control over the train and is to 
blame for ejecting the passenger. Thus, where the passenger 
was wrongfully removed from the sleeping car to an ordinary 
coach before the completion of the journey, the car company 
was held responsible; the court sasdng that, "the Pullman- 
Company will not be reUeved of its contract by an arrange- 
ment with the railroad company which prevented it from 
carrjdng it out." * So where a plaintiff, having a raih-oad 
ticket from New Orleans to New York over a certain route, 
apphed to a sleeping-car agent for a berth through, presenting 
his ticket, and was sold a berth in a certain car, this was 
tantamount to an agreement that this car should carry him 
over the route called for by his ticket. The car as a matter 
of fact went over another route, and the passenger upon pre- 
senting his ticket was refused passage by the railroad com- 
pany. The court held that the car company was guilty of a 
breach of obligation.' And where the car in which a berth 
had been assigned to the plaintifif was dropped from the train 
by the railroad company before reaching the destination, the 
car company was held responsible for a breach of its obhga- 
tion.i" And so where the passenger was forced to leave the 

8 Pullman P. C. Co. v. Cain, 15 Tex. Civ. App. 503, 40 S. W. 220 (1897). 

» Pullman's P. C. Co. v. King, 99 Fed. 380 (1900); Pullman P. C. Co. v. 
McDonald, 2 Tex. Civ. App. 322, 21 S. W. 945 (1893). 

lo Pullman P. C. Co. v. Taylor, 65 Ind. 153, 32 Am. Rep. 57 (1879). 
See, however, contra, Duval v. Pullman P. C. Co., 62 Fed. 265 (1894). 

[247] 



§ 367.] Innkeepers. [Chap. XXVIII. 

car because it had caught fire, owing to the negligence of the 
servants of the company, the company was Uable." 

§366. Excuse for ejecting passenger. 

The car company may, however, have a legal excuse for 
ejecting a passenger before he reaches his destination. Thus, 
where a passenger develops a contagious disease, hke small- 
pox, while on the journey, consideration for the other pas- 
sengers requires that he should be removed in a reasonable 
way; and so if a man was quarrelsome or intoxicated and 
boisterous he might be removed, having due regard to his 
safety and comfort.^^ 

§ 367. Right of company to change berth. 

Some doubt exists on the authorities whether the company 
having sold a berth to a passenger may then change the berth, 
and compel the passenger to occupy another. In the case of 
Mann Boudoir Car Company v. Dupre " a berth had been 
assigned to a woman, made up, and she had gone to bed in it; 
the conductor' afterwards discovered that he had made a 
mistake, since the berth had been engaged by another person, 
and compelled her to leave it and take another, equally good 
in itself. The passenger brought action, and the court with- 
out much consideration held that action would not he. It 
might be doubtful in such a case whether any other berth 
would be equal to the one in which a woman had aheady gone 
to bed; and whether it was reasonable in such a case to insist 
upon a change of berth in the middle of the night. The fact 
that the company was under obhgation to furnish this berth 
to a third party would of course have no bearing on its obhga- 
tion to the plaintiff. 

In the case of Pullman Palace Car Company v. Taylor," 
however, the right of the car company to change the berth 

" Pullman P. C. Co. v. Barker, 4 Col. 344, 34 .4m. Rep. 89 (1878). 

12 Paddock v. Atchison, T. & S. F. R. R., 37 Fed. 841, 4 L. R. A. 231 
(1889). 

13 54 Fed. 646, 21 L. R. A. 289 (1893). 
" 65 Ind. 153, 32 Am. Rep. 57 (1879). 

[248] 



Chap. XXVIII.] Safety and Comfort of Passenger. [§ 368. 

assigned was much limited, and it would seem altogether 
denied. The court said that the contract was to furnish the 
berth assigned "or at least to furnish an equally desirable 
berth in the same locality, in another car of equal safety, 
convenience and comfort." In that case the car to which 
the plaintiff had been assigned was dropped by the railroad 
short of his destination; and the car company offered him in 
another car lower berth number 1, or a lower berth in the 
drawing-room, in place of lower berth number 6, to which he 
had been assigned. He was held entitled to recover damages. 
Judge Worden said: "It was for the particular berth in the 
car that the plaintiff paid his money. That berth was the one 
which, by the contract, he was to have. There is, doubtless, 
some choice in berths; and, whether from mere caprice or 
from good reason the plaintiff chose and paid for that berth, 
he was entitled to have it. The defendant could not, without 
breach of contract, deprive him of that berth, although it 
offered to furnish him another, any more than the plaintiff 
could have claimed another, if he had happened to change his 
mind and desire another." 

§ 368. Who may occupy berth. 

The ordinary berth ticket in a sleeping car permits the 
occupancy of the berth by two persons. If, however, a ticket 
or pass is issued giving only one person a right to occupy the 
berth he cannot invite another person to share it with him. 
This difference was illustrated in a case where a person took 
with him his wife and child on an excursion, under an arrange- 
ment by which he was to buy regular tickets going and re- 
ceive a pass retiu"ning. He bought a section in the sleeping 
car going, and the child was allowed as a matter of course to 
share the mother's berth; on the return he received a pass 
for a section for himself and wife, and the child was not allowed 
to share the wife's berth on the pass.^^ And in one case it 

15 PuUman Palace Car Co. v. Marsh, 24 Ind. App. 129, 53 N. E. 782 
(1899). 

[249] 



§ 368.] Innkeepers. [Chap. XXVIII. 

was implied, though probably without sufficient consideration, 
that a person has no right to occupy with another a berth 
engaged by the latter.^^ 

If the husband procures a berth, he and his wife are of 
course allowed to occupy it; " but on the other hand it is the 
duty of the company to prevent a man and woman, not being 
married to one another, to occupy the same berth. As it is 
of course impossible for the company to investigate the actual 
fact in case a marriage is claimed, the company may act on 
reasonable appearances; and if the alleged husband and wife 
deal separately with the company, procuring different berths, 
and especially if the alleged wife went to the husband's berth 
clandestinely, the company would be justified in refusing to 
permit them to occupy one berth together. In a case of this sort 
the court said : " No question can exist with regard to the right 
of a husband and wife to occupy the same berth in a sleeping 
car. At the same time the proprietors of such conveyances 
imperatively owe to the travelling public the duty of seeing 
that men and women who do not occupy to each other that 
relation shall not occupy the same one. Usually there need 
exist no difficulty about preserving and enforcing both the 
right and the duty. When a berth is contracted for by the 
husband, either with an express understanding that it is en- 
gaged for the joint occupancy of himself and wife or under 
circumstances that are not misleading within themselves, the 
refusal to permit such occupancy, without other reason than 
the difference of sex, and when such refusaV would be a breach 
of contract, would give to the injured party a right of action 
for damages, in which might be considered circumstances of 
insult and aggravation attending the breach. ... It may 
be admitted that there was nothing improper in the conduct of 
the plaintiff and his wife when their relationship to each other 
is considered. And yet it cannot be affirmed that their actions 

mPuUman P. C. Co. y. Bales, 80 Tex, 211, 14 S. W. 8.55 (1890). 
17 Pullman P. C. Co. v. Bales, 80 Tex. 211, 14 S. W. 855, 15 S. W. 785 
(1890). 

[250] 



Chap. XXVIII.] Safety and Comfort of Passenger. [§ 370. 

were not under the circumstances calculated to excite the 
suspicion and arouse the Adgilance of defendant's servants, and 
make it their duty to investigate the matter and apply a 
remedy for the wrong, if one was foimd to exist." 

§369. Making up berth. 

While the passenger is doubtless entitled to have his berth 
made up at any reasonable time,^* there is no absolute duty 
to make it up at once upon demand. The utmost duty of the 
company is to make it up within a reasonable time after de- 
mand. Consequently, when a passenger, early in the evening, 
demanded that his berth should be made up at once, and the 
porter declined to do so until he had finished serving an order 
for luncheon, but actually made the berth ready within half 
an hour, the passenger was held to have no cause of action 
against the car company.** 

§ 370. Duty to awaken passengers. 

It is the duty of the car company to awaken a sleeping pas- 
senger long enough before reaching his destination to enable 
him to dress aind leave the train decently, safely, and without 
undue haste or delay.^" In the case of McKeon v. Chicago, 
Milwaukee & St. Paul Railway ^* it appeared that the plaintiff, 
a married woman, had to change from one sleeping car to 
another early in the morning at a junction. The porter failed 
to awake her before reaching the junction, and she was obhged 
to hurry from one car to another without a chance to dress 
herself properly. The company was held liable for the dam- 
ages she suffered. Mr. Chief Justice Cassoday said: "It be- 
came the duty of the defendant, whether stipulated in the 

18 Nevin v. Pullman P. C. Co., 106 III. 222, 46 Am. Rep. 688 (1883). 
w Pullman's Palace Car Co. v. Ehrman, 65 Miss. 383 (1888). 

20 Airey v. Pullman P. C. Co., 50 La. Ann. 648, 23 So. 512 (1898); Pull- 
man P. C. Co. V. Smith, 79 Tex. 468, 14 S. W. 993, 23 Am. St. Rep. 356, 
13 L. R. A. 215 (1891); McKeon v. Chicago M. & S. P. Ry., 94 Wis. 477, 
69 N. W. 175, 59 Am. St. Rep. 909, 35 L. R. A. 252 (1896). 

21 Supra. 

[251] 



§ 372.] Innkeepees. [Chap. XXVIII. 

contract of carriage or not, to either awaken her in time to 
make the necessary preparation for such change in a suitable 
and decent manner, upon reaching the station, or, faiUng to so 
awaken her before reaching the station, to hold the train at 
that point for a sufficient length of time to enable her to make 
such preparation as was necessary to change cars without 
trepidation or the exposure of her person to the gaze of specta- 
tors." 

§371. Regulations. 

Regulations may doubtless be made by the car company 
to govern the conduct of passengers in its cars; but such 
regulations must be reasonable in themselves, and must be 
properly published, so that passengers may know of them. 
Regulations of the company communicated orally from time 
to time to its employees, not printed on any paper or brought 
to knowledge of travellers except when communicated by the 
employees, are not binding. "It would seem to be an un- 
heard-of requirement to demand obedience to the defendant's 
rules, when those rules are not pubhshed and are not known 
to travellers who are to be guided by them." ^^ 

§372. Safety of the car. 

A car coinpany is bound to have a car which is safe both 
in its construction and in its use; and it is therefore responsible 
to a passenger for any injury caused by a negligent manage- 
ment by its servant of the appliances in the car. So where a 
passenger was injured by a headboard, placed between two 
sections by the porter, falhng upon him, from a cause which 
was not apparent, he was entitled to compensation; ^^ and in 
the same way the company would be liable for an upper berth 
improperly secured falhng on a passenger's head.^^ 

22 Woods, C. J., in Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 
796, 22 So. 53 (1897). 

23 Jenkins v. Louisville & N. R. R., 104 Ky. 673, 47 S. W. 761 (1898). 
2< In the actual decisions the carrier has been held liable; post, § 375. 

If the carrier is liable, o fortiori the car company is liable. 
[252] 



Chap. XXVIII.] Safety and Comfort of Passenger. [§ 373. 

It is the duty of the company to keep the car in such a con- 
dition that the passenger who has occasion to pass through it 
at night may do so safely. "It is a matter of common knowl- 
edge that on such cars passengers are expected to use the con- 
veniences of the car during the night, and also are awakened 
in time that they may both dress and make their toilets before 
arriving at their destination;" and the company must therefore 
sufficiently Ught the toilet rooms, and secure doors through 
which a passenger might accidentally go and be injured.^^ 
So it must keep the aisles clear of large articles of luggage or 
other obstacles over which a passenger might stumble and be 
hurt.26 

§ 373. Protection of passengers. 

It is the duty of the sl'eeping-car company to guard its pas- 
sengers from harm, so far as it may reasonably do so. Thus, 
it must guard passengers from the attacks of wrongdoers, if 
such attacks can be foreseen; but where the attack cannot be 
foreseen, as in a case where a passenger is killed by an assassin, 
the company is not liable. "It cannot be deemed to have 
anticipated nor expected to guard and protect him against a 
crime so horrid, and happily so rare, as that of murder. . . . 
While not directly responsible to a passenger for a wrong in- 
flicted by an intruder, or a stranger, or a fellow passenger, they 
are responsible for such injury if it appears that the com- 
panies knew, or ought to have known, that danger existed or 
was reasonably to be apprehended, and that they could, by 
the use of the agencies at their disposal, have prevented the 
mischief." ^'' 

So it is the duty of the car company to protect its passenger, 
so far as it may, against annoyance and insult. Where the 
company allowed drunken persons to enter a sleeping car and 

25 Piper V. New York C. & H. R. R. R., 76 Hun (N. Y.), 44, 27 N. Y. 
Supp. 693 (1894). 

2«Levien v. Webb, 30 K. Y. Misc. 196, 61 N. Y. Supp. 1113 (1899). 

27 Connell v. Chesapeake & O. Ry., 93 Va. 44, 24 S. E. 467, 57 Am. St. 
Rep. 786 (1896). 

[253] 



§ 375.] Innkeepers. [Chap. XXVIII. 

use vulgar, profane and indecent language it was liable in 
damages to a female passenger for the injury thereby sus- 
tained.^* 

§374. Injury by servant of the company. 

Since it is the duty of the company to protect the passenger 
from injury so far as it is reasonably possible to do so, and the 
company's conductor and porter are employed for the pur- 
pose, among others, of performing this duty, it follows that 
for every negligent or intentional injury to the passenger by 
the conductor or the porter the company is liable; since the 
servant who inflicted the injury could and should have pre- 
vented it. Consequently, where the porter shot a passenger 
by reason of negligently handling a pistol the company was 
liable; ^^ and for the same reason the company is liable for 
an assault upon a passenger by the porter.^" 

Where a passenger from an ordinary car enters a Pullman 
and is there assaulted by a servant of the company, the com- 
pany owes such passenger no duty of protection; and imless 
the assault is in the course of the porter's employment, which 
is seldom the case, the company is not responsible as master, 
and the assaulted passenger cannot maintain an action against 
the company .^^ 

§375. Cumulative liability of the carrier. 

The railroad company is also liable for accidents caused by 
improper construction or use of the cars, since as a carrier 
it is responsible for the safety of the vehicles in which its 
passengers are carried.^^ And for the same reason it is liable 

28 Houston E. & W. T. Ry. v. Perkins, 21 Tex. Civ. App. 508, 52 S. W. 
124 (1899). 

20 Heenrich v. Pullman P. C. Co., 20 Fed. 100 (1884). 

3» Campbell v. Pullman P. C. Co., 42 Fed. 484 (1890); Pullman P. C. Co. 
V. Lawrence, 74 Miss. 782, 22 So. 53 (1897). 

31 Williams v. Pullman P. C. Co., 40 I.a. Ann. 87, 3 So. 631 (1888); Cassedy 
V. Pullman P. C. Co. (Miss.), 17 So. 373 (1895). 

32 Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141 (1880); Rail- 
road Co. V. Walrath, 38 Oh. S. 461, 43 Am. Rep. 433 (1882). 

[254] 



Chap. XXVIII.] Safety and Comfort of Passenger. [§ 377. 

for an assault by the porter upon the passenger, since the 
carrier must protect the passenger, and has delegated the duty 
to the car company and its servants.*' 

§376. Duty of the passenger to take care of the berth. 

The passenger is tmder an obligation to deal properly with 
the berth and its furniture while he occupies it. As the Su- 
preme Court of Illinois said : *■* " He impliedly agreed to con- 
duct himself in a quiet and orderly manner, to take due and 
proper care of the berths while in his possession, and surrender 
the same at the end of his journey in as good condition as 
when assigned to him, necessary wear excepted." 

§ 377. Right of the passenger to assign or exchange berth. 

The question whether a passenger who has obtained a right 
to a berth may assign the right to another passenger, or may 
exchange berths with another passenger, seems never to have 
been passed upon by a court of last resort. It was, however, 
elaborately considered and decided in the affirmative by the 
Superior Court of Baltimore. In that case the facts as they 
appeared in evidence were that the plaintiff had been able to 
secure an upper berth only; a friend who had taken a section 
from Washington to Chicago, but left the train about seven 
hours before reaching Chicago, handed the plaintiff his berth 
check, and gave him permission to occupy the berth during 
the rest of the journey. The conductor, however, resold the 
section, and ejected the plaintiff. It was held that the plain- 
tiff had a right to ride in the section, and he was allowed to 
recover.'^ Mr. Justice Ritchie said: "The contract for the 
use of a section is described in the text-books and in the regula- 
tions of the company as a contract of sale — a sale of a given 
' space ' in a designated car. It is a hiring or a quasi lease of 
the section, and gives to the passenger the right to the use of 

33 DwineUe v. New York C. & H. R. R. R., 120 N. Y. 117, 24 N. E. 319, 
17 Am. St. Rep. 611 (1890). 

34 Nevin v. Pullman P. C. Co., 106 111. 222, 234, 46 Am. Rep. 688 (1883). 
as Curlander v. Pullman P. C. Co. (Md.), 28 Chicago Leg. News 68 (1895). 

[255] 



§ 377.] Innkeepers. [Chap. XXVIII. 

the same with its comforts and conveniences between the 
points designated on the ticket. ... It makes no differ- 
ence whether the porter makes up the berth and dusts off the 
seat for one passenger or another. The company sells the use 
of its section, with the right to some trifling services from its 
porter, from one point to another, and is paid in full for the 
same; it can make no possible difference to it whether the 
section is occupied by one first-class passenger or another, and 
whoever may hold it, the company can be called upon to do 
or fm-nish nothing that it has not agreed to and been paid for. 
If the holder leaves the train without transferring his section, 
it might be inferred that he had abandoned it to the company, 
and it might be resold, but when the company undertakes to 
sell again what it has already once sold and been paid for, it 
does so at the risk of trespassing upon the rights of others. 
" It is held in Searles' case •^'^ that the purchaser of a section 
may share its use with .any proper persons whom he invites 
into it; this is because he has purchased the use of the whole 
section, and as he can bestow on others the right to use part 
of it while he is there, I can see no reason why he cannot 
confer upon them the right to continue the use of it when he 
leaves the train before the end of the trip for which it has been 
sold. It is also conceded, as I have said, that the purchaser 
may transfer his section before he enters upon his journey. 
I can see no reason why be cannot transfer it immediately after 
starting if he chooses to ride in a passenger coach; or why two 
passengers might not exchange sections; or why, after having 
gone half of his journey, the holder might not then transfer 
his section for the balance of the trip, and himself withdi'aw 
into a passenger coach. It is conceded that he can make such 
transfers as long as he remains on the train, provided he gives 
notice to the conductor and gets his assent. But the assent 
of the defendant to such transfers is not necessary, because 
there is no condition in the contract which requires it. If the 
holder of the section, after ha\'ing gone part of his journey, 
38 Searles v. Mann B. C. Co., 45 Fed. 330 (1891). 
[256] 



Chap. XXVIII.] Safety and Comfort of Passengeb. [§ 377. 

can transfer it to another for the rest of the trip, he himself 
continuing on the train but riding in a passenger coach, as I 
think he can do, he can make a vaUd transfer on leaving the 
train, because it makes no difference to the Pullman Company, 
which has nothing to do with his contract of transportation, 
whether he withdraws into a passenger coach or leaves the 
train." The case was not carried to a higher court. 

In spite of the strong position and the able argument of the 
court in this case, the correctness of the decision may well be 
doubted. The assumption that the sale of a berth to a pas- 
senger is in any way like a lease seems fundamentally errone- 
ous. The sale of the berth is the mere grant of a Ucense to 
occupy the berth; a license entirely personal to the passenger 
to whom it is sold. If he chooses not to exercise his license, 
no one has a right to complain that another is not allowed to 
do so. It is possible that the company would have no right 
to object to an exchange of berths between two first-class pas- 
sengers, but an assignment of a berth is probably not legally 
effective. 



17 [ 257 ] 



§ 381.] 



Innkeepers. 



[Chap. XXIX. 



CHAPTER XXIX. 



RESPONSIBILITY FOR THE PROPERTY OF THE PASSENGER. 



§ 381. Liability for negligence. 

382. Loss by theft of servant of the 

company. 

383. For what goods the company 

is responsible. 

384. Amount of care required. 

385. Negligence in the daytime. 

386. Care necessary at night. 

387. Continuous and effective 

watch. ' 

388. Theft by another passenger. 



389. Preventing a passenger from 
carrying off another's lug- 



390. Limitation of liability. 

391. Contributory negligence. 

392. Evidence of negligence. 

393. Burden of proof. 

394. Care of property left behind 

by a passenger. 

395. Company when liable for 

goods as bailee. 



§ 381. Liability for negligence. 

As has been seen/ a sleeping-car company is not an insurer 
either as a common carrier or as an innkeeper. If it is to be 
held liable for loss of the passenger's goods it must be on the 
ground that it has been negligent in guarding the goods from 
loss. The company is not liable in the absence of negligence.^ 
When, however, goods of the passenger are lost through the 

lAnte, §§341, 342. 

2 PuUman P. C. Co. v. Freudenstein, 3 Col. App. 540, 34 Pac. 578 (1893); 
Pullman P. C. Co. v. Smith, 73 lU. 360, 24 Am. Rep. 258 (1874); McMurray 
V. Pullman's P. C. Co., 86 111. App. 619 (1899); Voss v. Wagner P. C. Co., 
16 Ind. App. 271, 43 N. E. 20, 44 N. E. 1010 (1896); Whicher v. Boston & 
A. R. R., 176 Mass. 275, 57 N. E. 601, 79 Am. St. Rep. 314 (1900); Root 
V. New York C. S. C. Co., 28 Mo. App. 199 (1887); Tracy v. PuUman P. C. 
Co., 67 How. Pr. 154 (1884); Welch v. Pulhnan P. C. Co., 16 Abb. Pr. 
N. S. 352 (1874); Welding v. Wagner, 1 City Ct. Rep.' 66 (1878); Sessions 
v. New York, L. E. & W. R. R., 78 Hun (N. Y.), 541, 29 N. Y. Supp. 628 
(1894); Pullman P. C. Co. v. Hatch, 30 Tex. Civ. App. 303, 70 S. W. 771 
(1902); Steam v. Pullman Car Co., 8 Ont. 171 (1885). Contra, Pullman 
P. C. Co. V. Lowe, 28 Neb. 239, 44 N. W. 226, 26 Am. St. Rep. 325, 6 L. R. A. 
809 (1889); Sise v. Pullman P. C. Co., 1 Quebec Super. 9 (semble). 
[258] 



Chap. XXIX.] Property of the Passenger. [§ 383. 

lack by the car company of due and reasonable care, the com- 
pany is liable because of the negligence.^ 

The question whether the company was negligent is for 
the jury.^ 

§ 382. Loss by theft of servant of the company. 

The company is absolutely liable for goods of the passenger 
stolen by the porter or the conductor; for he is a servant who 
is employed by the company to protect the passenger against 
such a loss, and his theft is a failure to do his duty and makes 
the company liable.^ 

§ 383. For what goods the company is responsible. 

The responsibUity of the car company does not extend to 
all goods that might be brought into the car by the passenger. 
It is responsible for the clothing of the passenger, and for such 
jewels and ornaments as he may reasonably wear; * for such 
small hand luggage as a passenger usually takes with him 
into the train,^ even though the contents were not to be used 

3 Pullman P. C. Co. v. Martin, 92 Ga. 161, 18 S. E. 364 (1893); Woodruff 
S. & P. C. Co. V. Diehl, 84 Ind. 474, 43 Am. Rep. 102 (1882); Dawley v. 
Wagner P. C. Co., 169 Mass. 315, 47 N. E. 1024 (1897); Williams v. Webb, 
27 N. Y. Misc. 508, 68 N. Y. Supp. 300 (1899); Falls River & M. Co. v. 
Pullman P. C. Co., 6 Ohio Dec. 85 (1896); Pullman Car Co. v. Gardner. 
3 Penny. (Pa.) 78, 14 W. N. C. 17 (1883); Pullman P. C. Co. v. Pollock, 
69 Tex. 120, 5 S. W. 814, 5 Am. St. Rep. 31 (1887); Stevenson v. Pullman 
P. C. Co., 26 S. W. 112 (Tex. Civ. App. 1894). 

* Pullman Car Co. v. Gardner, 3 Penny. (Pa.) 78, 14 W. N. C. 17 (1883); 
Hatch V. Pullman S. C. Co., 84 S. W. 246 (Tex. Civ. App. 1904). 

f Pullman's P. C. Co. v. Martin, 95 Ga. 314, 22 S. E. 700 (1894); Root 
V. New York S. C. Co., 28 Mo. App. 199 (1887); Morrow v. Pulhnan P. C. 
Co., 98 Mo. App. 351, 73 S. W. 281 (1903); PuUman P. C. Co. v. Gavin, 
93 Tenn. 53, 23 S. W. 70, 42 Am. St. Rep. 902, 21 L. R. A. 289 (1893) 
PuUman P. C. Co. v. Matthews, 74 Tex. 654, 12 S. W. 744, 15 Am. St. Rep. 
873 (1889). 

8 Blum V. Southern P. P. C. Co., 1 Flip. 500, Fed. Cas. No. 1,574 (1876); 
PuUman P. C. Co. v. Adams, 120 Ala. 581, 24 So. 921, 74 Am. St. Rep. 
53, 45 L. R. A. 767 (1898); Pullman's P. C. Co. v. Martin, 95 Ga. 314, 22 
S. E. 700 (1894); PuUman's P. C. Co. v. Harvey, 101 Ga. 733, 28 S. E. 
989 (1897); PuUman P. C. Co. v. Gaylord, 9 Ky. L. Rep. 58 (1887). 

' Blum V. Southern P. P. C. Co., 1 Flip. 500, Fed. Cas. No. 1,574 (1876); 

[ 259 ] 



§ 383.] Innkeepers. [Chap. XXIX. 

on the journey, and the passenger also had with him a trunk 
in the baggage car; * and for a reasonable amount of money 
for travelling expenses.* For any money he may be carry- 
ing beyond such amount as may be reasonably necessary for 
travelling expenses the passenger takes the risk; if it is lost 
by negligence of the company, the owner must bear the loss.^" 
"The small fee paid for a berth constitutes compensation 
simply for the accommodation and the attendant watchful- 
ness the company impliedly agrees to furnish; and though its 
responsibility rests solely in negligence, it should not be ex- 
posed to the hazard of false or exaggerated claims which 
designing men may attempt to enforce. This hmitation of 
liability need work no hardship on the traveller as he can 
protect himself against loss by sending per express the money 
in excess of the requirements of his trip, or by availing himself 
of banking facilities, such as purchasing a draft on some bank- 
ing house at the place of his destination." " What is a rea- 
sonable amount for travelling expenses is a question for the 
jury.i^ It has been held in one case that in the absence of 
evidence of what would constitute a reasonable amount, 
nominal damages only could be found; '^ but it would seem 
that a minimum amount might be allowed on the general in- 
formation of the jury. 

Cooney v. PuUman P. C. Co., 121 AJa. 368, 25 So. 712, 50 L. R. A. 690 
(1898); Kates v. Pullman's P. C. Co., 95 Ga. 810, 23 S. E. 186 (1895); Pull- 
man's P. C. Co. V. Harvey, 101 Ga. 733, 28 S. E. 989 (1897). 

8 Hampton v. Pullman P. C. Co., 42 Mo. App. 134 (1890). 

8 Blum V. Southern P. P. C. Co., 1 Flip. 500, Fed. Cas. No. 1,574 (1876); 
Kates V. Pullman's P. C. Co., 95 Ga. 810, 23 S. E. 186 (1895); Pullman 
P. C. Co. V. Gaylord, 9 Ky. L. Rep. 58 (1887); Root v. New York C. S. C. 
Co., 28 Mo. App. 199 (1887). 

lOBarrott v. PuUman s P. C. Co., 51 Fed. 796 (1892); Hillis v. Chicago, 
R. I. & P. Ry., 72 la. 228, 33 N. W. 643 (1887); Illinois C. R. R. v. Handy, 
63 Miss. 609, 56 Am. Rep. 846 (1886); Wilson v. Baltimore & O. R. R., 32 
Mo. App. 682 (1888); Williams v. Webb, 27 N. Y. Misc. 508, 58 N. Y. Supp. 
300 (1899). 

11 Levintritt, J., in Williams v. Webb, supra. 

"Williams v. Webb, 27 N. Y. Misc. 508, 58 N. Y. Supp. 300 (1899). 

13 Wilson V. Baltimore & O. R. R., 32 Mo. App. 682 (1888). 
[260] 



Chap. XXlX.] Property of the Passenger. [§ 3S5. 

In applying this general principle, recovery has been allowed 
for a valuable diamond pin worn in a scarf," and for three 
diamond rings worn on a passenger's finger; ^^ but not for a 
diamond ring, not worn because it was broken, but carried 
in the pocketbook for safe-keeping while being taken to a 
jeweller for repair.^* Recovery may he had for loss of a 
mileage book, but not of a pistol." 

§ 384. Amount of care required. 

The amount of care required of the car company is what 
is reasonable under the circumstances; such care as may be 
reasonably necessary to secure the safety of the passenger 
and his goods." It is obvious that a higher degree of care is 
required at night, when the passenger is asleep, than in the 
daytime, when he is awake and able to care take of him- 
self; " it will therefore be advisable to consider separately 
the question of neghgence by day and that of neghgence at 
night. 
§385. Negligence in the daytime. 

During the daytime the company need take only the ordi- 
nary and customary steps for guarding the passenger's goods; 
the passenger himself must give them such care as is neces- 
sary in addition to what he has a right to expect from the 
company.^" 

" Pullman's P. C. Co. v. Harvey, 101 Ga. 733, 28 S. E. 989 (1897); Bevls 
V. Baltimore & O. R. R., 26 Mo. App. 19 (1887). 

15 Pullman P. C. Co. v. Hunter, 107 Ky. .519, 54 S. W. 845, 47 L. R. A. 
286 (1900). 

"Pullman P. C. Co. v. Adams, 120 Ala. 581, 24 So. 921, 74 Am. St. 
Rep. 53, 45 L. R. A. 767 (1898). 

" Cooney v. Pullman P. C. Co., 121 Ala. 368, 25 So. 712, 50 L. R. A. 
690 (1898). 

18 Pullman's P. C. Co. v. Harvey, 101 Ga. 733, 28 S. E. 989 (1897); Pull- 
man's P. C. Co. V. Hall, 106 Ga. 765, 32 S. E. 923, 71 Am. St. Rep. 293, 
44 L. R. A. 790 (1899); Belden v. Pullman P. C. Co., 43 S. W. 22 (Tex. 
Civ. App. 1897). 

19 Pullman's P. C. Co. v. HaU, 106 Ga. 765, 32 S. E. 923, 71 Am. St. 
Rep. 293, 44 L. R. A. 790 (1899); Whicher v. Boston & A. R. R., 176 Mass. 
275, 57 N. E. 601, 79 Am. St. Rep. 314 (1900). 

so Efron v. Wagner P. C. Co., 59 Mo. App. 641 (1894). 

[261] 



§ 386.] Innkeepers. [Chap. XXIX. 

The commonest allegation of negligence while the passenger 
is awake is connected with the porter leaving the car and 
standing outside at a station. Generally in such a case, 
where one door is locked or a porter stands at each end of the 
car outside, so as to prevent the entry of unauthorized per- 
sons, the precaution is sufhcient; ^' and indeed it is the porter's 
duty to stand outside, to assist passengers who wish to enter 
the car. But the circumstances may make this negligent; 
as, for instance, when the train is standing in a station in the 
evening, and the porter has left the passenger's goods near 
an open window,^^ or in an unlocked drawing-room near an 
unlocked door,^^ or there were other circumstances of neg- 
ligence.^* But where the baggage is placed near an open 
window and is taken from the outside while the train is in 
motion, there is no negligence; such an event could hardly 
be foreseen and guarded against.^^ 

Where the porter helped the only passenger into the station 
with her luggage, and left one article of luggage behind in 
the unguarded car, the act was held negligent, and the com- 
pany was held Hable for the loss of the article.^® 

§ 386. Care necessary at night. 

During the night while the passenger is asleep the car com- 
pany must exercise peculiar vigilance to protect the passenger 
and his goods from injury. This care is inherent in the nature 
of the business. "The invitation to make use of the bed 
carries with it an invitation to sleep, and an implied agree- 
ment to take reasonable care of the guest's effects while he 

21 Efron V. Wagner P. C. Co., supra. 

22Dawley v. Wagner P. C. Co., 169 Mass. 315, 47 N. E. 1024 (1897). 

23 Arthur v. Pullman Co., 44 N. Y. Misc. 229, 88 N. Y. Supp. 552 (1904); 
Sise V. Pullman P. C. Co., 1 Quebec Super. 9 (1892). 

24 Pullman P. C. Co. v. Arents, 28 Tex. Civ. App. 71, 66 S. W. 329 (1902). 

25 Pullman's P. C. Co. v. Hall, 106 Ga. 765, 32 S. E. 923, 71 Am. St. 
Rep. 293, 44 L. R. A. 790 (1899). 

28 Voss V. Wagner P. C. Co., 16 Ind. App. 271, 43 N. E. 20, 44 N. E. 
1010 (1896). 

[262] 



Chap. XXIX.] Propehty of the Passenger. [§ 387. 

is in such a state that care, upon his own part, is impossible." ^ 
As Mr. Chief Justice Morton said in Lewis v. New York Sleep- 
ing Car Company: ^* "A sleeping-car company holds itself out 
to the world as furnishing safe and comfortable cars, and, 
when it sells a ticket, it impliedly stipulates to do so. It 
invites passengers to pay for and make use of its cars for sleep- 
ing, all parties knowing that, during the greater part of the 
night, the passenger will be asleep, powerless to protect him- 
self, or to guard his property. He cannot, Uke the guest of 
an inn, by locking the door, guard against danger. He has 
no right to take any such steps to protect himself in a sleeping 
car, but, by the necessity of the case, is dependent upon the 
owners and officers of the car to guard him and the property 
he has with him from danger from thieves or otherwise. The 
law raises the duty on the part of the car company to afford 
him this protection." 

§ 387. Continuous and effective watch. 

The vigilance required of the company during the night is 
to keep a continuous and effective watch over the interior of 
the car, both to prevent the entrance of criminal intruders and 
to see that the occupants of the car do not steal from their 
fellow occupants.^* It is enough to have one careful watch- 

27 Brown, J., in Blum v. Southern P. P. C. Co., 1 Flip. 500, 505, Fed. 
Cas. No. 1,574 (1876). 

28 143 Mass. 267, 273, 9 N. E. 617, 58 Am. Rep. 135 (1887). 

2» Blum V. Southern P. P. C. Co., 1 Flip. 500, Fed. Cas. No. 1,574 (1876); 
Pullman P. C. Co. v. Adams, 120 Ala. 581, 24 So. 921, 74 Am. St. Rep. 
53, 45 L. R. A. 767 (1898); Kates v. Pullman's P. C. Co., 95 Ga. 810, 23 
S. E. 186 (1895); Woodruff S. & P. C. Co. v. Diehl, 84 Ind. 474, 43 Am. 
Rep. 102 (1882); Pullman P. C. Co. v. Hunter, 107 Ky. 519, 54 S. W. 845 
47 L. R. A. 286 (1900); Root v. New York C. S. C. Co., 28 Mo. App. 199 
(1887); Hampton v. Pullman P. C. Co., 42 Mo. App. 134 (1890); Morrow 
V. Pullman P. C. Co., 98 Mo. App. 351, 73 S. W. 281 (1903); Carpenter v. 
New York, N. H. & H. R. R., 124 N. Y. 53, 26 N. E. 277, 21 Am. St. Rep. 
644 (1891); Sessions v. New York, L. E. & "W. R. R., 78 Hun (N. Y.), 541, 
29 N. Y. Supp. 628 (1894); Williams v. Webb, 27 N. Y. Misc. 508, 58 N. Y. 
Supp. 300 (1899); Pullman Car Co. v. Gardiner, 3 Penny. (Pa.) 78, 18 
W. N. C. 17 (1883); Pullman P. C. Co. v. Gavin, 93 Tenn. 53, 23 S. W. 70, 

[263] 



§ 388.] Innkeepers. [Chap. XXIX, 

man at once; ^° but he must keep the whole aisle of the car 
constantly in sight, and it is neglect of due care for him to 
spend any part of his watch, at a closet or in a room from 
which he cannot see the whole aisle,^^ or to leave the car and 
stand outside it at a station/^ a thing which, as we have seen, 
is perfectly permissible for him to do in the daytime. 

§ 388. Theft by another passenger. 

The carrier should take due care at night to prevent theft 
by a passenger, so far as it can be prevented; ^^ as, for instance, 
where the evidence shows that the thief must have stood for 
some time in the aisle while taking the goods.^^ 

In one case it was urged with great force that the company 
could not be held liable if there was nothing to call the porter's 
attention to the danger of theft. "One who avails himself 
of the comfort afforded on such cars does so with full knowl- 
edge of the fact that others, whose character the company 
cannot possibly know, may become fellow travellers with 
himself, and that the arrangement of the car into berths or 
sleeping chairs is such that he will necessarily, while asleep, 
be subjected to easy approach by any dishonest traveller in 
the same car. The risk of loss from such persons he assumes 

42 Am. St. Rep. 902, 21 L. R. A. 298 (1893); Pullman P. C. Co. v. Hatch, 
30 Tex. Civ. App. 303, 70 S. W. 771 (1902); Dargan v. Pullman P. C. Co., 
2 Wills. (Tex.) App. § 691 (1885). 

30 Pullman P. C. Co. v. Gaylord, 9 Ky. L. Rep. 58 (1887). 

31 Woodruff S. & P. C. Co. v. Diehl, 84 Ind. 474, 43 Am. Rep. 102 (1882); 
Carpenter v. New York, N. H. & H. R. R., 124 N. Y. 53, 26 N. E. 277, 
21 Am. St. Rep. 644 (1891). 

32 Pullman P. C. Co. v. Adams, 120 Ala. 581, 24 So. 921, 74 Am. St. Rep. 
53, 45 L. R. A. 767 (1898); PuUman P. C. Co. v. Hunter, 107 Ky. 519, 54 
S. W. 845, 47 L. R. A. 286 (1900); Carpenter v. New York, N. H. & H. 
R. R., 124 N. Y. 53, 26 N. E. 277, 21 Am. St. Rep. 644 (1891). 

33 Blum V. Southern P. P. C. Co., 1 Flip. 500, Fed. Cas. No. 1,574 (1876); 
Woodruff S. & P. C. Co. v. Diehl, 84 Ind. 474, 43 Am. Rep. 102 (1882); 
Pullman P. C. Co. v. Gavin, 93 Tenn. 53, 23 S. W. 70, 42 Am. St. Rep. 
902, 21 L. R. A. 298 (1893). 

34 Bevis V. Baltimore & O. R. R., 26 Mo. App. 19 (1887); Falls River & 
M. Co. V. Pullman P. C. Co., 6 Ohio Dec. 85 (1896). 

[264] 



Chap. XXIX.] Property op the Passenger. [§ 390. 

as an incident of his circumstances, and the company can only 
be made responsible by evidence of its neglect to keep that 
reasonable guard which its contract implies that it will." ** 
This reasoning, however, must be applied with caution. It 
is no doubt apphcable fully to the case of a day journey; 
but at night reasonable watchfulness on the part of the com- 
pany might be expected to prevent most such thefts. 

§ 389. Preventing a passenger from carrying off another's luggage. 
Where a passenger's luggage was carried away at a station 
during the night by another passenger, the company was held 
liable on the ground that it was neghgent in the porter not to 
prevent it.^® But it seems impossible in the ordinary case 
for the porter to identify every piece of luggage carried away 
by a passenger; and on this ground in another similar case 
the company was held not to be responsible.^^ 

§ 390. Limitation of liability. 

The sleeping-car company often attempts by a notice posted 
in the car or printed on the berth check to limit its liability 
for loss of the passenger's goods through negUgence. Of course 
such a notice will be of no avail unless brought home to the 
passenger.^* But the car company being a public-service 
company, the limitation of liability is against public policy 
and void even if it is contained in a contract between the 
company and a passenger.'^ 

35 Cooper, C. J., in Illinois C. R. R. v. Handy, 63 Miss. 609, 56 Am. R«p. 
846 (1886). 

soCooney v. Pullman P. C. Co., 121 Ala. 368, 25 So. 712, 50 L. R. A. 
690 (1898). 

37 Belden v. PuUman P. C. Co., 43 S. W. 22 (Tex. Civ. App. 1897). 

38 Lewis V. New York S. C. Co., 143 Mass. 267, 9 N. E. 617, .58 Am. Rep. 
135 (1887). 

39 Stevenson v. Pullman P. C. Co., 26 S. W. 112 (Tex. Civ. App. 1894). 
In Louisville N. & G. S. R. R. v. Katzenberger, 16 Lea (Tenn.), 380, 1 
S. W. 44, 57 Am. Rep. 232 (1886), it was held that such an exemption 
could not affect the liability of the railroad company, and no reason ap- 
pears for any distinction between the railroad company and the sleeping- 
car company. 

[265] 



§391.] Innkeepers. [Chap. XXIX. 

§391. Contributory negligence. 

The passenger's recovery may be barred by the fact that 
his own negligence contributed to the loss.^" So if the pas- 
senger on going to sleep left his goods in an unsafe place he 
cannot recover for their loss,*' though he cannot be expected 
to find at his peril the safest place. *^ Contributory negligence 
is no defence against an intentional act of the company or its 
servant, as, for instance, theft by a porter; *^ nor is a passenger 
barred of recovery by the negligence of his travelling com- 
panion.** 

It is contributory negligence for the passenger to leave a 
pocketbook or money in his berth while he goes to the toilet 
room or steps outside the car; *^ but of course it is proper to 
leave a valise, overcoat, or other article which cannot properly 
be taken with him.** Leaving a bag or other article on a 
berth in the daytime while one goes to the smoking room or 
to dinner has been held evidence of contributory negligence,*^ 
and under some circumstances the negligence might be ob- 
vious;** but since it is a regular and well-known custom of 

« Blum V. Southern P. P. C. Co., 1 Flip. 500, Fed. Cas. No. 1,574 (1876); 
Pullman P. C. Co. v. Adams, 120 Ala. 581, 24 So. 921, 74 Am. St. Rep. 
53, 45 L. R. A. 767 (1898); Kates v. Pullman's P. C. Co., 95 Ga. 810, 23 
S. E. 186 (1895). 

" Pullman's P. C. Co. v. Harvey, 101 Ga. 733, 28 S. E. 989 (1897). 

« Pullman P. C. Co. v. Adams, 120 Ala. 581, 24 So. 921, 74 Am. St. Rep. 
.53, 45 L. R. A. 767 (1898). 

«MoiTow V. PuUman P. C. Co., 98 Mo. App. 351, 73 S. W. 281 (1903); 
Pullman P. C. Co. v. Matthews, 74 Tex. 654, 12 S. W. 744, 15 Am. St. Rep. 
873 (1889). 

a Pullman P. C. Co. v. Adams, 120 Ala. 581, 24 So. 921, 74 Am. St. 
Rep. 53, 45 L. R. A. 767 (1898). 

"Root V. New York C. S. C. Co., 28 Mo. App. 199 (1887); Chamberlain 
V. PuUman P. C. Co., 55 Mo. App. 474 (1893); Pullman P. C. Co. v. Mat- 
thew.s 74 Tex. 654, 12 S. W. 744, 15 Am. St. Rep. 873 (1889). 

« Root V, New York C. S. C. Co., 28 Mo. App. 199 (1887). 

«Dawley v. Wagner P. C. Co., 169 Mass. 315, 47 N. E. 1024 (1897); 
Whioher v. Boston & A. R. R., 176 Mass. 275, 57 N. E. 601, 79 Am. St. 
Rep. 314 (1900); Pullman P. C. Co. v. Arents, 28 Tex. Civ. App. 71, 66 
S. W. .329 (1902). 

48 Whitney v. Pullman's P. C. Co., 143 Mass. 243, 9 N. E. 619 (1887). 

[266] 



Chap. XXIX.] Property of the Passenger. [§ 393. 

passengers to leave articles in a berth while in the smoking 
room or the dining car, it seems not quite accurate to speak 
of the act under ordinary circumstances as negligent. It 
would better be treated as an assumption by the passenger 
of the risk of any loss occurring without the negligence of the 
company.^* 

§ 392. Evidence of negligence. 

The mere fact of loss of the property without any explana- 
tion of the cause is not evidence that it was lost by the negli- 
gence of the company .'"' The fact that two passengers in 
the same car lost property on the same night is, however, 
evidence of negligence;'*^ so is the fact that the porter was 
seen asleep.^^ 

§ 393. Burden of proof. 

The burden of proof is upon the plaintiff to prove the negli- 
gence which is the basis of his action.^* It is said, to be sure, 
in Georgia, that after loss has been proved (at least when the 
loss occurred at night) the burden of disproving negligence is 
on the company, since it is peciiliarly within its power to 
produce such evidence; ^* but the court probably had in mind 
merely the burden of introducing evidence. Such a burden 

48 Efron V. Wagner P. C. Co., 59 Mo. App. 641 (1894). 

soWhicher v. Boston & A. R. R., 176 Mass. 27.5, 57 N. E. 601, 79 Am. 
St. Rep. 314 (1900); Carpenter v. New York, N. H. & H. R. R., 124 N. Y. 
53, 26 N. E. 277, 21 Am. St. Rep. 644, 11 L. R. A. 759 (1891); Tracy v. 
Pullman P. C. Co., 67 How. Pr. 154 (1884); PuUman P. C. Co. v. Hatch, 
30 Tex. Civ. App. 303, 70 S. W. 771 (1902); Steam v. Pullman Car Co., 

8 Ont. 171 (1885). 

51 Lewis V. New York S. C. Co., 143 Mass. 267, 9 N. E. 617, 58 Am. Rep 
135 (1887); Pullman Car Co. v. Gardner, 3 Penny. (Pa.) 78, 14 W. N. C. 17 

(1883). 

62 Pullman P. C. Co. v. Adams, 120 Ala. 581, 24 So. 921, 74 Am. St. Rep. 
53, 45 L. R. A. 767 (1898); Lewis v. New York S. C. Co., 143 Mass. 267, 

9 N. E. 617, 58 Am. Rep. 135 (1887). 

53 Sessions v. New York, L. E. & W. R. R., 78 Hun (N. Y.), 541, 29 
N. Y. Supp. 628 (1894). 

"Kates V. Pullman's P. C. Co., 95 Ga. 810, 23 S. E. 186 (1895); Pull- 
man's P. C. Co. V. Harvey, 101 Ga. 733, 28 S. B. 989 (1897). 

[267] 



§ 395.] Innkeepers. [Chap. XXlX. 

might well, under these circumstances, rest upon the com- 
pany, which could meet it by testimony establishing the care- 
fulness of the watch; ^^ but the evidence being in, the plaintiff 
should satisfy the jury of the existence of negligence. And 
in most jurisdictions the doctrine that unexplained loss is not 
evidence of negligence is opposed to the view taken in the 
Georgia cases, even as just explained. 

The burden of introducing evidence of contributory negli- 
gence of the passenger is on the company.^® In Missouri con- 
tributory negligence is regarded as an affirmative defence, and 
the burden is therefore on the company not only to introduce 
evidence, but also to prove it.^^ 

§ 394. Care of property left behind by a passenger. 

When a passenger leaves the train, leaving behind him 
some article of property, the company cannot be held to any 
duty of care in guarding the property until it is fotmd by 
some servant of the company; ^* but when it is so found, the 
company must take reasonable care of it, and do what it rea- 
sonably can towards restoring it to the owner.^* Where, how- 
ever, the passenger is without proper warning hurried out of 
his car into another, without being given time to collect all 
his effects, the company is responsible for any property which 
he leaves behind; *" and this is still more clearly the case 
where his goods are changed by the porter into another car 
in his absence and without his knowledge.®^ 

§ 395. Company liable for goods as bailee. 

While in the ordinary case the passenger remains in control 
and possession of his baggage, the company may through its 

55 PuUman P. C. Co. v. Preudenstein, 3 Col. App. 540, 34 Pac. 578 (1893). 
58 Pullman P. C. Co. v. Adams, 120 Ala. 581, 24 So. 921, 74 Am. St. 
Rep. 53, 45 L. R. A. 767 (1898). 

67 Florida v. PuUman P. C. Co., 37 Mo. App. 598 (1889). 
6s Illinois C. R. R. v. Handy, 63 Miss. 609, 56 Am. Rep. 846 (1886). 
58 Kates V. Pullman's P. C. Co., 95 Ga. 810, 23 S. E. 186 (1895). 
M Kates V. Pullman's P. C. Co., supra. 

«i Kinsley v. Lake Shore R. R., 125 Mass. 54, 28 Am. Rep. 200 (1878). 
[268] 



Chap. XXIX.] Property of the Passenger, [§ 395. 

porter assume the possession; and the company will then be 
liable, like a common carrier, for the safety of the goods. This 
is the case where the porter imdertakes to remove the goods 
from the car, either with the consent of the owner *^ or with- 
out his knowledge.*^ This principle was in one decision im- 
properly extended to a case where the porter placed the valise 
of a passenger under his berth while he was asleep.*'' 

82 Voss V. Wagner P. C. Co., 16 Ind. App. 271, 43 N. E. 20, 44 N. E. 
1010 (1896). 

83 Kinsley v. Lake Shore R. R., 125 Mass. 54, 28 Am. Rep. 200 (1878). 

84 NashviUe C. & S. L. R. R. v. Lillie, 112 Tenn. 331, 78 S. W. 1055 (1904). 



[269] 



§ 402.] Innkeepers. [Chap. XXX. 



CHAPTER XXX. 

ACTIONS, DAMAGES AND THE CONFLICT OF LAWS. 

§ 401. Form of action. j§ 403. Conflict of laws. 

402. Measure of damages. ' 

§ 401. Form of action. 

While the car company comes into contractual relations 
with its passengers, and may be sued for breach of contract,^ 
it owes to every passenger enjoying or demanding its services 
a duty imposed by the law, not by any contract, and for 
breach of this duty may be sued in an action sounding in tort.^ 
In this respect the case of the car company is like that of the 
innkeeper.^ 

Action may be maintained by a passenger for the loss of 
money in his possession, though he was merely a bailee of it.* 

§ 402. Measure of damages. 

For a personal injury to a passenger he is entitled to com- 
pensation for all his bodily injury, both present and future, 
immediate and consequential,^ and for damages for mental 
suffering if it was inflicted,*' but not to exemplary damages, 
or damages exceeding the actual loss, unless there were cir- 

1 Pullman P. C. Co. v. Taylor, 65 Ind. 153, 32 Am. Rep. 57 (3879). 

2Nevin v. Pullman P. C. Co., 106 111. 222, 46 Am. Rep. 688 (1883); Pull- 
man P. C. Co. V. Lawrence, 74 Miss. 782, 22 So. 53 (1897); PuUman P. C. 
Co. V. Booth (Tex. Civ. App.), 28 S. W. 719 (1894). 

sAnte, §281. 

i Pullman P. C. Co. v. Gavin, 93 Tenn. 53, 23 S. W. 70, 42 Am. St. Rep. 
902, 21 I.. A. R. 298 (1893). 

6 Hughes V. Pullman P. C. Co., 74 Fed. 499 (1896). 

'Campbell v. Pullman P. C. Co., 42 Fed. 484 (1890); PuUman P. C. 
Co. v. Booth, 28 S. W. 719 (Tex. Civ. App. 1894). 
[270] 



Chap. XXX.] Actions, damages, conflict of Laws. [§ 403. 

ciimstances of malice or insult.'' When a passenger is wrong- 
fully expelled from a sleeping car, the measure of damages is 
the amount of discomfort suffered from completing his journey 
in an ordinary car.* If the passenger is in a delicate state of 
health, and the expulsion aggravated the trouble and caused 
illness, the company is liable in damages for the illness.* 

§403. Conflict of Laws. 

The action against a sleeping-car company being an action 
ex delicto, the law of the place where the injury was inflicted 
determines the nature and extent of the injury,^" as, for in- 
stance, whether exemplary damages may be recovered." The 
law of the foreign State will be presumed to be the same as 
that of the forum, in the absence of evidence; and this being 
a question of modern commercial law which would probably 
be determined in the same way in all States, it was presumed 
that the law of Mexico was the same as that of Texas, though 
one of the States was governed by the Civil Law and the other 
by the Common Law.^^ 

7 Lemon v. PuDman P. C. Co., 52 Fed. 262 (1887); Pullman P. C. Co. v. 
Reed, 75 111. 125, 20 Am. Rep. 232 (1874) ; Missouri P. Ry. v. Groesbeck, 
24 S. W. 702 (Tex. Civ. App. 1894); Norfolk & W. R. R. v. Lipscomb, 
90 Va. 137, 17 S. E. 809, 20 L. R. A. 817 (1893). 

8 Pullman P. C. Co. v. Reed, 75 111. 125, 20 Am. Rep. 232 (1874); Missouri 
Pac. Ry. V. Groesbeck, 24 S. W. 702 (Tex. Civ. App. ]894). 

» Mann B. C. Co. v. Dupr6, 54 Fed. 646 (1893). Pullman P. C. Co. v. 
Barker, 4 Col. 344, 34 Am. Rep. 89 (1878), contra, is not to be commended. 

w Pullman P. C. Co. v. Lawrence, 74 Miss. 782, 22 So. 53 (1897); Steven- 
son V. Pullman P. C. Co., 26 S. W. 112 (Tex. Civ. App. 1894). 

11 Pullman P. C. Co. v. Lawrence, 74 Miss. 782, 22 So. 53 (1897). 

12 Stevenson v. Pullman P. C. Co., 26 S. W. 112 (Tex. Civ. App. 1894), 
32 S. W. 335 (Tex. Civ. App. 1895). 



[271 



§ 411.] 



Innkeepers. 



[Chap. XXXI. 



TITLE YIII. 

STATUTES AFFECTING INNKEEPERS. 

CHAPTER XXXI. 

LIMITATIONS OF INNKEEPERS' LIABILITY. 



Topic I. General Principles. 

411. General statutory limitations 

of liability. 

412. Non-compliance by guest not 

causing loss. 

413. Non-compliance by innkeeper. 

414. Negligence of innkeeper. 

415. Effect of statute on responsi- 

bility for merchandise. 

416. Burden of proof. 

Topic II. The Posting of No- 
tice. 

Requirements of statute must 
be exactly complied with. 

Printing notice on register not 
sufficient. 

419. Notice erroneously printed. 

420. Actual notice of regulation on 

part of guest: New York 
rule. 

421. Actual notice: general rule. 

422. Actual notice: what is suffi- 

cient to constitute. 



417. 



418. 



Topic III. Deposit of Goods 
with the Innkeeper. 
§ 423. What constitutes a sufficient 
deposit. 

424. Deposit must be for safe keep- 

ing. 

425. Effect of deposit. 

426. Waiver of deposit. 

427. During what time the limita- 

tion is in effect. 
Topic IV. What goods must 
be deposited with the inn- 
keeper. 

428. Whether aU goods must be 

deposited. 

429. Statutes expressly excepting 

goods needed in guest's 
room. 

430. Statutes expressly enumerat- 

ing classes of goods to be 
deposited. 

431. Deposit of watch. 

432. Deposit of article needed for 

immediate use. 



Topic I. General Principles. 

§411. General statutory limitations of liability. 

In the year 1855 both New York and Pennsylvania passed 
acts permitting an innkeeper who had provided a safe for the 
protection of his guest's valuables to protect himself from lia- 
[272] 



Chap. XXXI.] Limitations of Liability. [§ 413. 

bility for valuables not deposited with him by the guest by 
giving proper notice. Other States soon passed similar stat- 
utes, and at the present time such statutes are practically 
universal. 

§ 412. Non-compliance by guest not causing loss. 

Where the guest is required, by a notice posted under au- 
thority of the statute, to lock his door, or to do some similar 
act, the guest who after noncomphance with the terms of the 
notice loses goods from his room is not barred from recovery 
by his failure to follow the regulation unless such failure was 
the cause of the loss. Thus, where a guest was required to 
lock his door at night, and he failed to do so, and his goods 
were stolen at night by another guest placed in the room, 
against the plaintiff's remonstrance, by the innkeeper, it was 
held that the guest might recover compensation for his loss.* 
So where the notice as posted required the guest before going 
out to lock the door and leave the key at the office, and the 
plaintiff, a guest, locked the door and kept the key in his 
pocket, and goods were stolen from the room, he was held 
entitled to recover in spite of his failure to comply with the 
terms of the notice, since the loss was not caused by his failure 
to leave the key at the office.^ This case, however, turned 
on the precise language of the statute, which exonerates the 
innkeeper only if the loss is attributable to the guest's non- 
compliance with the terms of the notice. 

§413. Non-compliance by innkeeper, 

An innkeeper who fails to provide a safe in his office, as 
required by the statute, is responsible as at common law for 
goods of the guest not deposited with him; he can take no 
advantage of the statute.^ The same thing is true of an 
innkeeper who fails to post the notice required by the statute.^ 

iGile V. Libby, 36 Barb. (N. Y.) 70 (1861). 
zBurbank v. Chapin, 140 Mass. 123, 2 N. E. 934 (1885). 
3 Dunbier v. Day, 12 Neb. 596, 12 N. W. 109, 41 Am. Rep. 772 (1882). 
< Spicer v. Bacon, 2 Ex. D. 463, 46 L. J. Ex. 713, 36 L. T. 896, 25 W. R. 
18 [273] 



§ 415.] Innkeepers. [Chap. XXXI. 

§ 414, Negligence of innkeeper. 

A common exception to the limitation of the innkeeper's 
habihty is of cases where the loss happens through the act 
or negligence of the innkeeper or his servant. This has been 
held in England to mean cases where the loss occurs wholly 
because of such act or negligence.^ In New York it has been 
held that the negligence intended by the statute is that which 
precedes, induces, or facUitates the loss, and not negligence 
afterwards.^ 

Where a guest at an inn failed to deposit jewels with the 
innkeeper, and they were stolen from his room, it was held 
that the fact that the defendants' servants did not cause the 
premises to be searched upon the discovery of a poker and a 
knife on the bed in the plaintiff's room from which the jewelry 
was stolen was no evidence of neghgence on the part of the 
defendants' servants.'' 

§ 415. Effect of statute on responsibility for merchandise. 

As has been seen * the innkeeper is not required at common 
law to permit the use of his inn as a shop for the display or 
sale of merchandise, and he is therefore not required to receive 
goods brought to the inn for such a purpose. The statute limit- 
ing the innkeeper's Uability was not intended to increase his 
obligation in this respect. For instance, the requirement that 
he shall keep a safe does not compel him to have a safe large 
enough to receive any merchandise, no matter how bulky or 
valuable it may be, which a guest may choose to bring into the 
inn.' 

840 (1877); Beale v. Posey, 72 Ala. 323 (1882); Lanier v. Youngblood, 73 
Ala. 587 (1888); Murchison v. Sergent, 69 Ga. 206 (1882); Olson v. Cross- 
man, 31 Minn. 222, 17 N. W. 375 (1883); Batterson v. Vogel, 8 Mo. App. 
24 (1879); Lima v. Dwinelle, 7 Alb. L. J. 44 (N. Y. 1873). 

sMedewar v. Grand Hotel Co., [1891] 2 Q. B. 11, 60 L. J. Q. B. 209, 
64L. T. 851,55 J. P. 614. 

« Faucett v. Nichols, 4 Thomp. & C. (N. Y.) 597 (1874). 

7 Marchioness of Huntly v. Bedford Hotel Co., 56 J. P. 53 (1891). 

8 Ania, § 150. 

8 Meyers v. Cottrill, 6 Biss. 465, Fed. Cas. No. 9,985 (1873). 
[274] 



Chap. XXXI.] Limitations of Liability. [§ 416. 

The common law on this point is, however, modified by 
statute in Missouri,^" where it is provided that an innkeeper 
is not hable for loss of merchandise for sale or sample belonging 
to the guest, from the guest's room, unless written notice is 
given to the innkeeper that the guest has such merchandise. 
Under this statute the innkeeper was held not to be liable, 
if the guest has failed to give such notice, even though the 
innkeeper in fact knew the nature of the guest's business, and 
that he had such goods for sale in his room. In this case the 
liability is created, not limited, by the statute, and the pro- 
visions of the act must be expressly followed in order to hold 
the innkeeper to a statutory liability." Mr. Justice Harlan 
said: "Since the innkeeper is not ordinarily bound to the 
same care for the safety of goods, in the possession of a guest 
for the purpose merely of being exhibited or sold, as for articles 
carried by the latter for his comfort or convenience as a traveller, 
the statute changed the rule so as to make his responsibihty 
the same in both cases : provided, in the former case, the per- 
son received as a guest gives written notice that he has mer- 
chandise for sale or sample in his possession in the hotel, 
leaving the innkeeper, upon such notice, to elect whether he 
will permit the guest to remain in the hotel with such mer- 
chandise for sale or sample. Notice in this form, when the 
guest is permitted to remain in the hotel with merchandise 
in his possession 'for sale or sample,' is made by the statute 
evidence that the innkeeper has assumed responsibility for 
the safety of such merchandise, to the full extent that he is 
bound by the settled principles of law for the safety of 
the baggage or other articles brought by guests into the 
hotels." 

§416. Burden of proof. 

Whether the burden of bringing the case within the statute 
lies on the innkeeper or the guest depends entirely upon the 

10 Post, Appendix XXIII, § 4. 

11 Fisher v. Kelsey, 121 U. S. 383, 30 L. Ed. 930, 7 Sup. Ct. 929 (1887). 

[275] 



§ 417.] Innkebpkes. [Chap. XXXI. 

form of the statute and the nature of the case. The burden 
of proving compliance with all the forms required by the stat- 
ute, such as posting notices, is certainly on the innkeeper, 
and he must affirmatively show such compliance.^^ Com- 
pliance with the requirements of the act having been shown 
by the innkeeper, the burden may or may not be upon him to 
show further the circumstances emmaerated in the act. In 
some statutes the innkeeper is liable only for a loss which hap- 
pens through the act or neglect of himself or his servants. In 
such a case the burden is upon the guest to prove that the loss 
happened through such act or neglect." But under a statute 
exempting an innkeeper from liability for the loss by fire of 
property of a guest in a barn or outbuilding, where it shall 
appear that the loss was the work of an incendiary, and oc- 
curred without negligence on his part, the burden is upon the 
innkeeper to show that the fire was an incendiary one, and to 
show absence of negligence on his part.^* And imder a statute 
by which an innkeeper is relieved when the loss is attributable 
to the guest's negligence or non-compliance with reasonable 
regulations of the inn which are brought to his notice, it is for 
the innkeeper to show that the non-compliance with a regula- 
tion was the cause of the loss.^^ 

Topic II. The Posting of Notice. 

§417. Eequirements of statute must be exactly complied with. 

The statute limiting the innkeeper's liability always pro- 
vides for the posting of notice of the limitation. Such pro- 
visions of the statute must be expressly complied with. Thus, 
where the notice is to be printed "in ordinary-sized plain 
English type" printing it in very small type is not enough, 

12 Myers v. Cottrill, Fed. Cas. No. 9,985, 5 Biss. 465 (1873); Chamberlain 
V. West, 37 Minn. 54, 33 N. W. 114 (1887). 

isElcox V. Hill, 98 U. S. 218, 25 L. Ed. 103 (1878); Becker v. Haynes, 
29 Fed. 441 (1887); Bumham v. Young, 72 Me. 273 (1881). 

"Faucett v. Nichols, 64 N. Y. 377 (1876). 

16 Burbank v. Chapin, 140 Mass. 123, 2 N. E. 934 (1885). 
[276] 



Chap. XXXI.] Limitations of Liability. [§ 418. 

even if the guest could just as easily have read it; ^* and where 
notice is to be posted on the doors of the chambers, the notice 
must be posted on the door of every room occupied by guests." 

§418. Frinting notice on register not sufficient. 

Where the statute requires that notice should be posted, 
it is not enough to print the notice at the head of the register 
in which a guest signs his name. Such information as to the 
statute is not a sufficient compliance with the terms of the 
statute, and does not exempt the innkeeper from liability 
under the statute.^* And even if the statute makes no particu- 
lar provision as to the method of posting the notice, as in 
Georgia,^* it is not enough to print the notice at the head of 
each page of the register. In a case arising under the Georgia 
statute, it appeared that the innkeeper provided a safe in his 
office, and printed at the top of the page in the register which 
the guest signeid a notice that "money and other valuables 
must be left at the office and checks received for them." The 
guest lost money from his room, and sued the innkeeper; and 
the trial court allowed the register to be produced in order to 
prove a posting of notice under the statute. The Supreme 
Court held this to be erroneous. Mr. Chief Justice Jackson 
said on this point: "Does one man in a hundred, when he 
registers his name, read the printed heading of the register? 
What sort of publication is it to guests? In no view we can 
take of our statutes, their reason and spirit, is it such a publica- 
tion to the guest as the law requires, and if it were to transient 
people stopping for meals and pulling off overcoats and laying 
down valises, it is not to guests who take rooms at the hotel. 
We think it, however, not sufficient under our statutes to bind 

"Porter v. Gilkey, 57 Mo. 235 (1874); see Batterson v. Vogel, 8 Mo. 
App. 24 (1879). 

wBeale v. Posey, 72 Ala. 323 (1882); Lanier v. Youngblood, 73 Ala. 
587 (1883); Lima v. Dwinelle, 7 Alb. L. J. 44 (N. Y. 1873). 

"Olson V. Grossman, 31 Minn. 222, 17 N. W. 375 (1883); Batterson v. 
Vogel, 8 Mo. App. 24 (1879). 

i» Post, Appendix IX, § 7. 

[277] 



§ 419.] Innkeepers. [Chap. XXXI. 

anybody. For these reasons we think the court erred in re- 
gard to the admissibihty of this register with its heading." ^° 
Nor will the notice thus printed at the head of the page 
absolve the innkeeper, on the ground that it forms the basis 
of a special contract between the innkeeper and the guest, in 
the absence of affirmative evidence that the guest saw and 
assented to it; nor, it may be added, unless a consideration 
can be shown. On this point Mr. Chief Justice Gilfillan said 
in the case of Olson v. Crossman:^* "A notice at the head of 
the register of guests, or a verbal notice to the guest, not being 
such notice as the statute prescribes, is of no avail unless the 
guest consents to it, so as to constitute a contract limiting the 
innkeeper's liability. Of course, it would not amount to such 
a contract unless the guest's attention was called to it, so that 
he might be presumed to have understood and assented to 
it." 22 

§419. Notice erroneously printed. 

A material error in the printed notice wiU prevent the inn- 
keeper from taking advantage of it. Thus, in the English 
case of Spicer v. Bacon ^s the innkeeper had posted a notice 
in intended compliance with the statute. The statute pro- 
vided 24 that no innkeeper should be liable for loss of or injury 
to the goods of his guest to a greater extent than thirty pounds, 
with certain exceptions, " unless such goods or property shall 
have been stolen, lost, or injured, through the willful act, 
default, or neglect of such innkeeper or any servant in his 
employ;" 2^ and it was further pro\'ided that a copy of this 

2»Murchison v. Sergent, 69 Ga. 206 (1882). 

21 31 Minn. 222, 17 N. W. 375 (1883). 

22 And see to the same effect Marchioness of Huntley v. Bedford Hotel 
Co., 56 J. P. 53 (Eng. 1891); Burbank v. Chapin, 140 Mass. 123, 2 N. E. 
934 (1885); Kellogg v. Sweeney, 1 Lans. (N. Y.) 397 (1869); Bernstein v. 
Sweeny, 33 N. Y. Super. Ct. 271 (1871). 

23 2 Ex. D. 463, 46 L. J. Ex. 713, 36 L. T. 896, 25 W. R. 840 (1877). 

24 26 & 27 Vict., ch. 41, §1. 

25 The word "willful" in the statute qualifies the word "act" only, not 
"default or neglect." Squire v. Wheeler, 16 L. T. 93 (1867). 

[278] 



Chap. XXXI.] Limitations of Liability. [§ 419. 

provision printed in plain type should be exhibited in a 
conspicuous part of the hall or entrance to the inn. The 
innkeeper inadvertently omitted the word "act" from the sen- 
tence quoted, so that the clause read in the notice "unless such 
goods . . . shall have been stolen . . . through the 
willful default or neglect of such innkeeper," etc. This notice 
was held not to protect the innkeeper under the act. Lord 
Chancellor Cairns said : " I have not the least doubt that there 
was a bona fide intention on the part of the defendant to give 
a notice which was an exact compliance with the statute, and 
that the omission which was relied upon has occurred entirely 
per incwriam; but it has occurred, and we must deal with the 
notice as it stands. Now at first it rather appeared that it 
might be looked upon as if there had been an omission of a 
word not material to the sense, and I certainly should not be 
prepared to hold that, if a paper had been put up in an inn 
which was intended in good faith to be a copy of the section 
of the statute, and that all that could be said of it in opposition 
to its being a copy was that a word or two words which were 
not material to the sense and to the operation of the statute 
had been omitted, the paper had ceased to be, or failed to be, 
a copy within the meaning of the statute. But . . . the 
omission here entirely alters the operation of the section of the 
statute. The notice is, therefore, not a notice stating the law 
in the way the first section of the statute states it. I feel 
obliged, I repeat reluctantly, to hold that the claim for pro- 
tection imder the statute fails, and that the case must be dealt 
with as if the statute never had passed." And Chief Jus- 
tice Cockburn said : " I quite concur in thinking that if this were 
a mere clerical error we might hold the notice sufficient to 
meet the requirement of the Act, as still being a copy; but 
when we find an omission of that which is material, with a 
view to a clear and distinct statement of the rights and lia- 
bilities of the parties respectively we have an omission which 
is far beyond a mere clerical error. It is an omission of a 
substantial part of the notice. When we have an omission of 

[279] 



§ 420.] Innkeepers. [Chap. XXXI. 

a material and really substantial part of the notice required 
by statute, I cannot think it a copy sufficient to satisfy the 
requirements of the Act." 

§ 420. Actual notice of regulation on part of guest : New York rule. 

In a leading case in New York it appeared that the plain- 
tiff, a guest at the defendant's inn, lost a large sum of money 
from his room. The innkeeper had not posted notices in the 
rooms of the guests, as required by the statute; but a waiter 
informed the guest that there was a safe in the office provided 
for the guests' valuables, and that they should be deposited 
there. In an action by the guest for loss of his money, the 
Superior Court of the City of New York held that the action 
was barred by the statute.^^ Mr. Chief Justice Duer said: 
"The only question that remains upon the special finding of 
the jury, is whether the defendants are to be held liable for 
the loss that is claimed, upon the sole ground that the notice 
required by the statute was not at the time of the loss posted 
up in the bedroom of the plaintiff, although he had actual 
notice of all the facts that a notice so posted up would have 
contained. Unless the affirmative of this proposition is true 
the plaintiff cannot be entitled to recover; that it is true we 
find it impossible to believe. We shall admit that the notice 
given by the waiter to the plaintiff would not have been suffi- 
cient to discharge the defendants at common law, notwith- 
standing the charge of the judge and the finding of the jury, 
upon the question of negligence, but that the notice was 
rendered sufficient by the act of the legislature, not indeed 
by its terms, but by its reasonable, and as it seems to us even 
necessary, construction, we do not at all doubt. The notice 
which the statute requires is merely constructive, since it is 
evident that a notice posted up in the room of a guest may 
wholly escape his attention, yet he is not permitted to aver his 
ignorance, but is bound by that presumption of his knowledge 

28 Purvis V. Coleman, 1 Bosw. (N. Y.) 321 (1857). 

[280] 



Chap. XXXI.] Limitations of Liability. [§ 420. 

which the statute raises. When the facts raising the pre- 
sumption are proved, his recovery is barred. It is true, the 
statute is silent as to the effect of actual notice, but we cannot 
believe that the legislature intended that a greater effect should 
be attributed to the presumed knowledge of a guest than to 
its actual proof — that while the presumption bars his re- 
covery, the proof must be rejected or disregarded. Such a 
construction of the intention of the legislature would be most 
unreasonable, and although that which we believe to have been 
its true intention is not expressed, we cannot but think that 
it is necessarily involved in that which is expressed, and the 
meaning of the statute we hold to be, — that the knowledge of 
a guest who has failed to deposit his money, or jewelry, in a 
safe, that he knew to have been provided, shall defeat his 
claim for a subsequent loss, and that such is its consequence, 
whether the knowledge be established by direct and positive, 
or merely presumptive, evidence. Nor do we suppose that 
such a construction is confined to the statute under considera- 
tion. The rule, we think, may be stated as universal, that 
when a statute declares that certain acts shall create a pre- 
sumption of knowledge, which the party to be affected by the 
knowledge is not permitted to repel, it declares by facts to 
which the presumption relates, is just as admissible in proof, 
and when proved is equally conclusive. Of the application of 
the rule, the actual knowledge of a subsequent purchaser of an 
unrecorded deed or mortgage is an example. If it be said that 
such a purchaser is not a purchaser in good faith, the reply 
is that there is a similar want of good faith in a guest who, with 
a fuU knowledge that a safe had been provided for the purpose 
for which it was provided, seeks to deprive an innkeeper of 
the protection that the legislature meant to afford him upon 
the sole groimd, that the terms of the statute had not been 
literally complied with. The notice given to the plaintiff in 
this case, the jury have in effect found, contained all the in- 
formation that a notice posted up in his room, if read, would 
have conveyed to him,. and we are clearly of opinion, that in 

[281] 



§ 421.] Innkeepers. [Chap. XXXI. 

disregarding such a notice, the plaintiff acted at his peril, and 
took upon himself the risk of any subsequent loss." 

The Court of Appeals affirmed the decision of the Superior 
Court,^^ saying that the actual notice was "far more satis- 
factory and ample than the constructive one required by the 
statute," and that the object and purpose of the statute had 
been "more than comphed with." The Chief Justice and two 
other judges dissented. 

§421. Actual notice : general rule. 

This decision has been much criticised in later cases, and 
several courts have declined to follow it. Thus, in Batterson 
V. Vogel ^* the innkeeper who had not posted a notice ia the 
guest's room, as required by the act, was not absolved though 
it appeared that the guest had read a copy of the act on the 
register; the court saying that the act did not provide that 
actual knowledge of the provisions of the act should take the 
place of posting. And this seems to be the better view. The 
statute prescribes the exact manner in which the innkeeper, 
without any agreement on the part of the guest, may escape 
his common-law liability. It is in derogation of the common 
law, and should be strictly construed against the innkeeper, 
who is attempting in reliance upon it, to protect himself against 
an obligation towards his guest which the common law would 
create. The statute makes no provision for an actual notice, 
and a strict construction of the statute does not permit the 
innkeeper who has failed to comply with the terms of it to 
assert the actual notice of the guest as a sufficient substitute 
for the statutory requirement.^^ Indeed, it is not accurate 
to say that the statute assumes constructive notice on the part 
of the guest as the result of posting the notice. It is more 
exact to say that, without regard to knowledge on the part of 

27 Purvis V. Coleman, 21 N. Y. Ill (1860). 

28 8 Mo. App. 24 (1879). 

29 Lanier v. Youngblood, 73 Ala. 587, 594 (1883); Porter v. Gilkey, 57 
Mo. 235 (1874). 

[ 282 ] 



Chap. XXXI.] Limitations of Liability. [§ 423. 

the guest, the statute extends a privilege to the innkeeper 
upon an express condition; which condition he must perform 
if he would avail himself of the privilege. 

§ 422. Actual notice : what is sufficient to constitute. 

If actual notice can take the place of the posting of printed 
notices called for by the statute, either by securing to the 
innkeeper the protection of the statute, or by forming the 
basis of a contract limiting his liability, or by making it an act 
of negligence in the guest to fail to deposit his valuables with 
the innkeeper, the notice must have been given to the guest 
at the time of his present visit to the inn, or at least within a 
reasonable time previously, to be so found by the jury; *" and 
notice actually given to the guest one year before his present 
visit is not enough to relieve the innkeeper from liability upon 
any ground.^^ 

Topic III. Deposit of Goods with the Innkeeper. 

§ 423. What constitutes a sufficient deposit. 

It may be assumed that when a guest places a package in 
the hands of the servant who is authorized to accept deposits, 
this will constitute a sufficient deposit under the terms of the 
statute. It is not necessary to give detailed notice to the 
innkeeper of the nature of the package, nor to state explicitly 
that the delivery is upon deposit for safe-keeping. In the case 
or Bradner v. MuUen *^ it appeared that defendant was pro- 
prietor of an inn, and the plaintiff was then a guest at the inn; 
that on the evening of that day the plaintiff walked in behind 
the desk in the office and in the presence of an employee bf 
the inn and the person apparently in charge of the office, hung 
up his overcoat on one of the hooks therein used for that pur- 
pose by guests; that the management usually gave checks for 

3» Shultz V. WaU, 134 Pa. 262, 19 Atl. 742, 26 Wkly. Notes Cas. 51, 19 
Am. St. Rep. 686, 8 L. R. A. 97 (1890). 

31 Lanier v. Youngblood, 73 Ala. 587 (1883). 

32 27 N. Y. Misc. 479, 59 N. Y. Supp. 178 (1899). 

[283] 



§ 424.] Innkeepers. [Chap. XXXI. 

umbrellas, but none for overcoats unless asked, and the plain- 
tiff in placing his coat behind the desk in the office placed it 
upon hooks placed there for the purpose of hanging coats and 
according to the custom of the guests. The coat was lost. 
The court held that the innkeeper was liable, on the ground 
that there had been a sufficient deposit of the overcoat under 
the statute^ The guest put it where he had been invited to 
place it by the defendant. It is true the innkeeper generally 
gave checks; but this is not required by the statute, and is 
rather for the convenience of the innkeeper than for the se- 
curity of the guest's property. 

This decision is to be contrasted with the Irish case of 
O'Connor v. Grand International Hotel Company.^* In that 
case it appeared that a guest gave a parcel to the innkeeper 
saying, "Keep that for me." It was lost, and the guest sued 
the innkeeper for the value. The package contained jewels 
worth two hundred pounds. The court held that under the 
statute the innkeeper's liabiUty was limited to thirty pounds, 
since when making the deposit the guest did not inform the 
innkeeper, in a reasonable and intelligible manner, that the 
deposit was for the safe custody of the article. This decision 
is not to be commended. 

§424. Deposit must be for safe keeping. 

But while it seems not necessary expressly to state to the 
innkeeper that the goods are valuable, or are deposited under 
the provisions of the statute, in order to make the innkeeper 
responsible, it is nevertheless necessary that they should be 
placed with him under such circumstances as to indicate that 
they were deposited for safe-keeping. Where the deposit is 
merely for the temporary convenience of the guest, who means 
to keep the goods under his own care, the provisions of the act 
are not comphed with. Thus, in Horton v. Terminal Hotel and 
Arcade Company ^* a guest, before going to the adjacent res- 

33 [1898] 2Ir. 92. 

31 114 Mo. App. 357, 89 S. W. 363 (1905). 
[284] 



Chap. XXXI.] Limitations of Liabilitt. [§ 424. 

taurant to get his supper, handed a box containing a locket to 
the clerk and requested him to keep it for him, but gave the clerk 
no information concerning the contents of the box. The plain- 
tiff intended to get the locket after supper aud keep it in his 
room during the night, but forgot to call for it and never 
thought of it again until midnight, after he had retired. When 
he remembered leaving it with the clerk, he rang for a bell boy 
and sent him to get the locket, at the same time showing the 
boy another locket like it. This was the first time any em- 
ployee about the hotel knew what was in the box the plaintiff 
had left with the clerk. When the bell boy asked for the 
locket, the clerk with whom it had been left had gone off 
watch, and the night clerk who had come on could not find it. 
About 3 o'clock at night this clerk did find it, and, after open- 
ing the box and seeing the locket inside, intrusted it to the 
bell boy to take to plaintiff's room. The boy laid the box on 
a balustrade in the hotel until he filled an order for liquor 
which some guests had given, and when he returned it was 
gone. 

The court held that under these circumstances the innkeeper 
was not liable. Judge Goode said: "It is plain that when 
plaintiff handed the box containing the locket to the hotel 
clerk to keep imtil supper was over, not apprising him of its 
contents, the hotel company became, at most, a gratuitous 
bailee or depositary, and was liable only for gross negligence 
in the care of the property. It assumed no liability as an 
innkeeper, for the reason that the article was one which, imder 
the statute we have cited, it was plaintiff's duty to intrust to 
the defendant to be deposited in the hotel safe. The defend- 
ant was responsible only as bailee." 

The stress apparently laid by the court on the failure to 
state the contents of the package was hardly meant to indi- 
cate the fact as a reason for holding that there was no deposit 
under the act, but rather as a reason for holding that the inn- 
keeper was not liable as a bailee; the nature and value of the 
package having a bearing on the amount of care necessary. 

[ 285 ] 



§ 425.] Innkeepers. [Chap. XXXI. 

The only reason for holding that the statute was not complied 
with appears to have been that the deposit was neither ex- 
pressly nor by implication a deposit for safe-keeping mider 
the act. 

§425. Effect of deposit. 

If the guest in compliance with the terms of the statute 
deposits valuables with the innkeeper, the latter is hable for 
them as at common law. So in the leading case of WUkins 
V. Earle ^^ it appeared that the plaintiff, a guest in the defend- 
ant's inn, deposited in the hands of the proper servant of the 
defendant a package containing twenty thousand dollars, and 
this package was stolen from the safe. The innkeeper was held 
liable. Mr. Commissioner Hunt said: "The liability of an 
innkeeper for the goods of his guest has been settled for cen- 
turies. The act of 1855 does not purport to create it nor even 
to declare it. It assumes the liability. It enacts that when- 
ever the proprietors of an hotel shall provide a safe in their 
office for the keeping of money, jewels, or ornaments belonging 
to their guests, and shall notify their guests thereof, and a 
guest shall neglect to deposit his money, jewels or ornaments 
therein, the proprietor shall not be liable for any loss of the 
same by his guest. This act assumes that, before its passage, 
the innkeeper was liable for the loss of the money, jewels or 
ornaments of his guest. It assumes that he still remains Hable, 
if a deposit is made by the guest of his money nor jewels, ac- 
cording to the terms of the act. It neither enlarges or restricts 
the liability. It leaves it as the common law fixes it, with the 
condition as to money and jewels, that, if a particular notice is 
given by the innkeeper, the liability shall not attach unless 
such money and jewels are deposited in the office safe. In the 
present case this notice was given and the condition was com- 
plied with. The liability stands therefore as the common law 
fixed it." 

The same thing is true if compliance with the statute is 

35 44 N. Y. 172, 4 Am. Rep. 655 (1870). 
[286] 



Chap. XXXI.] Limitations op Liability. [§ 426. 

waived by the innkeeper. Thus, in the case of Friedman v. 
Breshn '* it appeared that a guest at the defendant's inn had 
some jewelry with her, which at various time she deposited 
in the office safe, until upon a certain occasion, when she was 
about to leave the hotel for a few hours, at the suggestion of 
the clerk, the jewelry was left in her trunk in her room, the' 
keys of the room and of the trunk being left in the custody of 
the clerk, who agreed to look after them, and who assured her 
that the jewels would be safe. During her absence the jewels 
were stolen. The innkeeper was held liable, in spite of the 
provisions of the statute. In the Appellate Division of the 
Supreme Court Judge Woodward said: "That statute was 
enacted for the protection of proprietors of hotels; but if the 
rooming clerk was the manager of the hotel, and authorized 
the plaintiff's assignor to leave her jewelry in her room, he 
must be deemed to have waived any rights which the de- 
fendant might have had under the law. It is well established 
in this State that a party may waive a statutory, and even 
a constitutional, provision made for his benefit, and that, 
having once done so, he cannot afterwards ask for its 
protection." 

§ 426. Waiver of deposit. 

In order, however, to constitute a waiver of the provisions 
of the statute the act of the innkeeper or his servant authoriz- 
ing the guest to keep property in his room must be done with 
full knowledge that the property is of the sort covered by the 
statute. This unquestionable principle was made the basis 
of decision in a case in which, to say the least, its application 
was doubtful. The plaintiff, while a guest at the defendant's 
hotel, offered a package of jewelry to the bookkeeper, request- 
ing him to put it in the safe, but not disclosing the nature of 
the contents; and the bookkeeper, without making inquiry in 
regard to the same, told the plaintiff there was no necessity 

38 169 N. Y. 574, 61 N. E. 1129 (1901), affirming S. C, 51 App. Div. 
268, 65 N. Y. Supp. 5 (1900). 

[287] 



§ 426.] Innkeepers. [Chap. XXXI. 

for that; to take the package to his room; that it would be 
just as safe there, — whereupon the plaintiff took the package 
to his room, and placed it in his trunk, from whence it was 
stolen. Nothing in the appearance of the package indicated 
the nature of its contents. It was held that the defendant 
was not liable.^'' In the Supreme Court Judge George G. 
Barnard said: "This interview can be available to the plain- 
tiff, only on the ground that by it he was deprived of the 
security of the safe, and that, therefore, the case is to be con- 
sidered as if no safe had been provided. 

"To have this effect, knowledge of the contents of the 
package should be brought home to the clerk. The plaintiff 
urges that he had reasonable notice of the contents, by its 
being offered for deposit. Whether that was reasonable notice 
or not, depends on all the surrounding circumstances. Under 
the facts of this case, I think it was not. Here the plaintiff 
offers a large package, done up in a rough style, not indicating 
in any manner that it contained jewelry, but, on the contrary, 
leading to the supposition that it was an ordinary package, 
which the plaintiff, to prevent the necessity of going upstairs, 
desired to have temporarily placed in the safe. It was calcu- 
lated to mislead, and that it did mislead, and that the plaintiff 
knew it misled the clerk, I think is apparent from the whole 
evidence. As the clerk had previously deposited an opera 
glass in the safe, at the plaintiff's request, his statement, that 
this package would be just as secure in the room as in the safe, 
was enough to show the plaintiff that the clerk was unaware 
of the valuable contents of said package, and supposed it not 
to be of a character which should require the protection of a 
safe. The plaintiff knew the value of the package, and also 
knew that the clerk did not, and the evidence warrants the 
conclusion that the plaintiff knew that if he had disclosed 
the value to the clerk, such clerk would have deposited it in the 
safe, and that for some purpose of his own, he concealed the 

37 Bendetson v. French, 46 N. Y. 266 (1871), affirming S. C, 44 Barb. 
31 (1865). 

[288] 



Chap. XXXI.] Limitations of Liability. [§ 428. 

value purposely and knowingly, leaving the clerk under a 
false impression." 

§ 427. During what time the limitation is in effect. 

The deposit cannot always be made with the innkeeper, 
as required by the act, at the very moment of the guest's 
becoming such; and the limitation of liabiUty does not take 
effect, it has been held, until the guest has failed to avail him- 
self of the privilege of deposit. A reasonable time must there- 
fore elapse, after the guest's arrival at the inn, for the guest 
to deposit his valuables; and during that time the innkeeper 
remains liable as at common law, in spite of the statute.'* 
In the same way the guest must get his property together, 
previous to his departure from the inn; and after the goods 
have come to the hands of the guest for that purpose the stat- 
ute cannot apply. This would seem to be equally true even 
if the goods were never in fact deposited. It may be said 
generally that notwithstanding the provisions of the statute 
the innkeeper is responsible for the guest's goods, as at com- 
mon law, for such reasonable period before his departure 
as is necessary for him to collect, pack and remove his 
goods.'* 

Topic IV. What Goods must be deposited with the Innkeeper. 

§ 428. Whether all goods must be deposited. 

A question much discussed in the cases is whether under the 
statutes limiting habihty it is necessary to deposit all goods 
with the innkeeper in order to enforce his responsibiUty for 
the goods, or only certain classes of goods which can be spared. 
On the one hand it is urged that the guest must for convenience 
and even from necessity have with him in his room at all times 
certain articles of personal use, clothing and sufficient money 

38 Becker v. Haynes, 29 Fed. 441 (1887) ; Rosenplaenter v. Roessle, 54 
N. Y. 262 (1873). 

38 Bendetson v. French, 46 N. Y. 266 (1871). 

19 [ 289 ] 



§ 429.] Innkeepers. [Chap. XXXI. 

for current expenses. On the other hand, it is pointed out that 
this is a question of following the statute, and the statute is 
expUcit in the matter. If the question were one of determin- 
ing whether a rule of the innkeeper is reasonable, the conclusion 
would be different. Where an innkeeper by regulation brought 
to the notice of his guest requires the deposit of valuables with 
the innkeeper, the regulation, as has been seen,*" is reasonable 
only if articles which the guest needs to have with him are 
excepted from its operation. But in dealing with a statute, 
such considerations are not controlling though to be sure they 
may have a certain weight in determining the proper inter- 
pretation of the statute. It is necessary, therefore, to examine 
with some care the separate statutes on this subject. 

§ 429. Statutes expressly excepting goods needed in guest's room. 
It is to be noticed first of all that the matter is settled in 
several States by the express language of the statute. Thus, 
in the early Pennsylvania act ** it was provided that the exemp- 
tion should not apply to " such an amount of money and such 
articles of goods, jewelry, and valuables as is usual, common 
and prudent for the guest or boarder to retain in his room or 
about his person," and the same provision has been made in 
Delaware,*^ Iowa,*' Maine,** Massachusetts,*^ Montana,** Ne- 
braska,*^ New Hampshire,** North Dakota,*' Oklahoma,^" 
South Dakota ^^ and Wyoming.^^ As to the articles so ex- 

i«Ante, §213. 

« P. L. 1855, p. 479; post, Appendix XXXVI, § 5. 

« Appendix VII, §1. 

" Appendix XIII, §1. 

« Appendix XVII, § 3. 

■IS Appendix XIX, § 5. 

« Appendix XXIV, § 3. 

" Appendix XXV, § 2. 

<8 Appendix XXVII, § 1. 

« Appendix XXXII, § 2. 

6» Appendix XXXIV, § 1. 

61 Appendix XL, § 2. 

62 Appendix XLIX, § 1. 

[ 290 ] 



Chap. XXXI.] Limitations of Liability. [§ 430. 

cepted, the common-law liability remains, in spite of the no- 
tice.^' 

Under the exception to the act are embraced a gold watch, 
a pair of gold bracelets, a gold thimble, three gold rings and 
a gold neck-pin for the owner's personal use and forty dollars 
for travelling expenses; and the innkeeper is liable for their 
loss though they were retained by the guest, and kept in his 
trunk in the chamber.'^ These articles were taken with the 
guest for personal use, not merely for transportation, and were 
such as she might properly use daily while travelling or resting. 

§ 430. Statutes expressly enumerating classes of goods to be de- 
posited. 

In several States the articles which the innkeeper can re- 
quire to be deposited in his safe are confined in a certain class 
of things. Thus, in California the liability of the innkeeper 
can be limited only in the case of money, jewelry, documents, 
or other articles of unusual value and small compass; ^^ and 
a similar provision may be found in Florida,^" lUinois,^^ Ken- 
tucky,^* Louisiana,®^ Maryland,®" Michigan,** Minnesota,*^ 
Missouri,®' New Jersey,®* New York,®^ North Carolina,®® 
Ohio,®^ Rhode Island,®* Tennessee,®^ Vermont,'''' Washing- 

53 Turner v. Whitaker, 9 Pa. Super. Ct. 83, 43 W. N. C. 375 (1898). 

54 Noble V. Milliken, 74 Me. 225, 23 Am. Rep. 581 (1882). 

55 Post, Appendix IV, § 9. 

56 Appendix VIII, § 4. 
67 Appendix XI, § 2. 

58 Appendix XV, § 1 . 
69 Appendix XVI, § 5. 

80 Appendix XVIII, § 4. 

81 Appendix XX, § 2. 

82 Appendix XXI, § 2. 

63 Appendix XXIII, § 3. 

64 Appendix XXVIII, § 3. 

65 Appendix XXX, § 3. 

66 Appendix XXXI, § 6. 

67 Appendix XXXIII, § 3. 

68 Appendix XXXVIII, § 1. 

69 Appendix XLI, § 5. 

70 Appendix XLIV, § 2. 

[291] 



§ 431.] Innkeepers. [Chap. XXXI. 

ton/* West Virigina ^^ and Wisconsin.''^ The statute is evi- 
dently so framed as to exclude clothing and other mere per- 
sonal baggage of small value; and for this the innkeeper is 
liable in spite of the act.''^ And under an act which applies 
to "jewels and ornaments" silver table forks and a silver 
ladle are not included.''^ Mineral specimens are not included 
under "valuables." '^^ 

§431. Deposit of watch. 

The cases differ on the question whether a watch and chain 
come within the description "jewels and ornaments" or simi- 
lar language of the statute. In Maryland and New York it 
is held that they do not, but that the innkeeper is responsible 
for them in spite of statute and notice." In Briggs v. Todd ^* 
the plaintiff, a guest, lost from his room in the inn a watch on 
the cover of which a state coat of arms had been engraved. 
The picture of the owner's mother was inside the case. The 
watch had been laid for a short time inside the owner's trunk. 
In spite of these facts the court held that the watch was not 
an ornament. 

The reason for this interpretation of the words is forcibly 
put by Mr. Justice Allen in Rameley v. Leland : ^^ " Certain 
property particularly valuable in itself, taking but small space 
compared with its value for its safe-keeping, easy of conceal- 
ment and removal, holding out great temptation to the dis- 
honest, and not necessary to the comfort or convenience of 

" Appendix XLVI, § 3. 

72 Appendix XL VII, § 3. 

73 Appendix XL VIII, §1. 

'1 Treiber v. Burrows, 27 Md. 130 (1867). 

75 BriggG V. Todd, 28 N. Y. Misc. 208, 59 N. Y. Supp. 23 (1899). 

76 Brown Hotel Co. v. Burckhardt, 13 Col. App. 59, 56 Pac. 188 (1899). 
77Maltby v. Chapman, 25 Md. 310 (1866); Bernstein v. Sweeny, 33 

N. Y. Super. Ct. 271 (1871); Ramaley v. Leland, 43 N. Y. 539, 3 Am. Rep. 
728 (1871); Becker v. Warner, 90 Hun (N. Y.), 187, 35 N. Y. Supp. 739 
(1895). 

78 28 N. Y. Misc. 208, 59 N. Y. Supp. 23 (1899). 

70 43 N. Y. 539, 3 Am. Rep. 728 (1871). 
[292] 



Chap. XXXI.] Limitations of Liability. [§ 431. 

the guest while in his room, is made the subject of the statutory 
exemption. Property of a different description, including all 
that which is useful or necessary to the comfort and conven- 
ience of the guest, that which is usually carried and worn as a 
part of the ordinary apparel and outfit, or is ordinarily used, 
and is convenient for use, by travellers as well in as out of their 
rooms, is left, as before the statute, at the risk of the innkeeper. 
The words of the statute must be taken in their ordinary sense, 
in the absence of any indication that they were used, either in 
a technical sense or a sense other than that in which they are 
popularly used. A watch is neither a jewel or ornament, as 
these words are used and understood, either in common par- 
lance or by lexicographers. It is not used or carried as a jewel 
or ornament, but as a timepiece or chronometer, an article of 
ordinary wear by most travellers of every class, and of daily 
and hourly use by all. It is as useful and necessary to the 
guest in his room as out of it, in the night as the daytime. It 
is carried for use and convenience and not for ornament. But 
it is enough that it is neither a jewel or ornament in any sense 
in which these words have ever been used. The question of 
negligence, and whether the plaintiff could and did bolt his 
door, were properly submitted to and passed upon by the 
jury." 

In other States, however, a watch is held to come within the 
words of the statute, and the innkeeper is not responsible for 
it if it is not deposited with him, provided he has com- 
plied with the requirements of the Act.*" In Stewart v. Par- 
sons*^ the court said: "There is no satisfactory reason for 
saying that the property lost does not come fully within the 
language and intent of this enactment. The statute, in sub- 
so Long V. Arcade Hotel Co., 9 Ohio Deo. 372, 12 Wkly. Law Bull. 250 
(1883); Prescott v. Bruce, 2 Cinn. Rep. 58 (Oh. 1871); Meacham v. Gallo- 
way, 102 Term. 419, 52 S. W. 859, 73 Am. St. Rep. 886, 46 L. R. A. 319 
(1899); Rains v. Maxwell House Co., 112 Tenn. 219, 79 S. W. 114 (1904); 
Stewart v. Parsons, 24 Wis. 241 (1869). 
81 24 Wis. 242 (1869). 

[293] 



§ 432.] Innkeepers. [Chap. XXXI. 

stance, provides that no innkeeper in this State who shall con- 
stantly have in his inn an iron safe in good order, and suitable 
for the safe custody of money, jewelry, and articles of gold and 
silver manufacture and the hke, shall be liable. The object 
of this law is very manifest. It is intended to limit and re- 
strict the liability of an innkeeper at common law or by cus- 
tom for the loss of the goods of his guests committed to his care." 

§ 432. Deposit of article needed for immediate use. 

The question whether an article expressly mentioned in the 
act but necessary to be kept by the guest in his room shall 
be excepted from its provisions is also one of some doubt on 
the authorities. In a case in New York decided soon after 
the passage of the act it was held that the act would not apply 
to a sum of money reasonably necessary for current expenses; 
on the ground that the act could not be intended to require 
so inconvenient a thing.*^ But this was afterwards overruled 
in New York, and the doctrine established that the innkeeper 
who has complied with the act is not responsible for any sum 
of money, however small, not deposited with him.*' In Mary- 
land it is still held that the guest is not required under the act 
to deposit money necessary for his travelhng expenses; ^* but 
in other jurisdictions the rule finally established in New York 
prevails.*^ 

This seems at first thought a hardship ; but as has been said, 
the statute was adopted for the benefit of the hotel keepers, 
not for the guests. It is to be considered that the innkeeper 
is relieved only from an extraordinary liability, for which in 
modern times the reason has largely ceased; and that the 
result of the act is to put no greater burden of risk upon the 

82 Gile V. Libby, 36 Barb. (N. Y.) 70 (1861); followed in Krohn v. Sweeny, 
2 Daly (N. Y.), 200 (1867). 

83 Hyatt V. Taylor, 42 N. Y. 258 (1869); Ramaley v. Leland, 43 N. Y. 
539, 3 Am. Rep. 728 (1871); Rosenplaenter v. Roessle, 54 N. Y. 262 (1873). 

s^Maltby v. Chapman, 25 Md. 310 (1866). 

85 Lang V. Arcade Hotel Co., 9 Ohio Dec. 372, 12 Wkly. Law Bull. 250 
(1883); Rains v. MaxweU House Co., 112 Tenn. 219, 79 S. W. 114 (1904). 
[ 294 ] 



Chap. XXXI.] Limitations of Liability. [§ 432. 

guest than he has at all times except when he happens to resort 
to an inn. On this point the Supreme Court of Tennessee 
said: ** "If a guest sees proper to keep his watch and his fob 
and money upon his person or in his room, he does so at his 
own risk, just as he keeps it about his own person and in his 
possession when not in the hotel or inn. If he desires for his 
own safety or convenience to place the responsibility for its 
safe-keeping upon the hotel company during his stay in the 
hotel as a guest, then he must place it in the safe which the 
statute requires to be provided by the innkeeper for that pur- 
pose. We can put no other construction upon the statute, 
without nullifying wholly or to some extent its provisions. 

"It may be inconvenient to deposit small sums of money and 
pieces of jewelry of httle value in the safe of a hotel, and it 
may be inconvenient to do without their use during the stay 
of the guest; but this is a condition, imder the statute, upon 
which the hotel keeper can alone be made liable for their safety 
as an insurer. 

"If the guest desires to avoid these inconveniences, he may 
retain possession of his money and his jewelry, just as if he 
were not a guest of the hotel." 

Even in States where no limit is set in the statute to the 
goods which the innkeeper may require to be deposited in 
his safe, the court may place a limit based on the reasonable- 
ness of the case. Thus, in Georgia, where an innkeeper re- 
quired the deposit of all valuables in his safe, under the pro- 
visions of the act,*' the court held that the guest need not 
deposit his watch or a reasonable amount of money for his 
expenses in order to hold the innkeeper responsible. Mr. 
Chief Justice Jackson said: "It cannot be that such a notice 
is applicable to guests in a room in the hotel. Is the guest to 
deposit his valise there, and go or send after it to get out a 
clean shirt to put on? Is he to leave his coat there, go to his 
room in his shirt sleeves, or send it down and get a check for 

88 Rains v. MaxweU House Co., 112 Tenn. 219, 79 S. W. 114 (1904). 
87 Post, Appendix IX, § 7. 

[295] 



§ 432.] Innkeepers. [Chap. XXXI. 

it after he goes to bed? Is he to deposit there his watch and 
pocket change and get a check for them? The whole regula- 
tion, if meant for guests in their rooms, is on its face not only 
unreasonable but absurd. 

"Was it admissible to show negligence in this guest in not 
reading it when he registered his name imder it? He was 
bound to know the law at his peril, and surely he may use it 
for his protection. When he knew it, he knew that such notice 
was not applicable, and could not be applicable, to him in his 
room; because it was unreasonable to apply it to the wearing 
apparel and valises and trunks and other luggage of the so- 
journer at the hotel with his wife in his room." ** The court 
cited in support of this view cases in which the innkeeper's 
regulation had been adopted without the authorization of a 
statute. 

ssMurchison v. Sergent, 69 Ga. 206 (1882). 



[296] 



Chap. XXXII.] Crimes against Innkeepers. 



[§441. 



CHAPTER XXXII. 



CRIMES AGAINST INNKEEPERS. 



Topic I. Fraud on innkeeper 
in general. 
§ 441. Statutes punishing fraud in 
guests and boarders. 

442. Statute strictly construed. 

443. Form of indictment. 

Topic II. Fraudulent obtain- 
ing of board. 

444. Fraud essential. 

445. False representation required. 

446. Pretence must be made with 

fraudulent motive. 

447. Board or other accommoda- 

tion must be actually ob- 
tained. 



§ 448. Board must be obtained by 
the pretence. 
Topic III. Surreptitious re- 
moval of property. 

449. Surreptitious removal as 

■prima fade evidence of 
fraud. 

450. Surreptitious removal as sub- 

stantive offence. 

451. What sort of removal is sur- 

reptitious. 

452. Posting of notice not neces- 

sary. 



Topic I. Fraud on Innkeeper in General. 

§ 441. Statutes punishing fraud in guests and boarders. 

By statute in several States the fraudulent obtaining of 
board or other accommodation, and the fraudulent removal of 
property in order to evade a board biU, are made criminal. 
The statutes cover the cases of both inns and boarding houses^^:" 

The statute is not unconstitutional, either as involving im- 
prisonment for debt ^ or for any other reason.' 

Even if the statute punishes the mere removal of baggage 

1 Commonwealth v. Gough, 3 Kulp (Pa.) 148 (1884). 

^Ex parte King, 102 Ala. 182, 15 So. 524 (1894); Hutchinson v. Davis, 
68 lU. App. 358 (1895); State v. Benson, 28 Minn. 424, 10 N. W. 471 (1881); 
State V. Yardley, 95 Tenn. 546, 32 S W. 481 (1895). 

3 State V. Kingsley, 108 Mo. 135, 18 S. W. 994 (1891); State v. Yardley, 
95 Tenn. 546, 32 S. W. 481 (1895). 

[297] 



§ 443.] Innkeepers. [Chap. XXXII. 

by one who has not paid his bill, without requiring a fraudu- 
lent intent, it is constitutional. "The guest may then be im- 
prisoned, not for failiire to pay the debt, but for impairing the 
efficacy of the lien."* 

§ 442. Statute strictly construed. 

T~ It has been held that the statute, being a penal one, must 
oe strictly construed.' This consideration did not, however, 
appeal with great force to Judge Handley, who in the Quarter 
Sessions of Luzerne County, Pennsylvania, in the case of 
Commonwealth v. Morton ^ used this poetic and almost scrip- 
tural language: "This law was passed to protect the rights of 
a meritorious class of citizens, and ought to be so construed as 
to fully carry into effect the protection intended for such 
persons from the wily ways of the hungry and dishonest, who, 
roaming at large without any respect for the rights of others, 
violate all laws with impunity. There is no crime but what 
man will commit when hunger stares him in the face; and 
when that hunger is appeased, there is no more ungrateful 
creature at large. Parties who will eat of the bread obtained 
by the sweat of another man's brow must pay for it, or obtain 
it in an honest way, or for charity sake; otherwise, if he is 
discovered removing surreptitiously his property out of any 
such place named in the statute, after obtaining credit for 
food or accommodations, although such property be but a 
breast pin, he may be convicted and imprisoned under the 
act." 

§ 443. Form of indictment. 

The indictment need not allege that the board obtained 
was of any value; nor need an indictment for surreptitious 
removal of baggage, allege that the baggage was of any value.'' 

■1 State V. Engle, 156 Ind. 339, 58 N. E. 698 (1900). 
5 Hutchinson v. Davis, 58 111. App. 358 (1895). 
6 Luzerne Leg. Reg. 207, 9 Lane. Bar. 79 (Pa. 1877). 
' State V. Benson, 28 Minn. 424, 10 N. W. 471 (1881). 
[298] 



Chap. XXXIL] Crimes against Innkeepers. [§ 445. 

But an indictment for obtaining board by false pretences must 
allege the nature and character of the pretences, that the de- 
fendant may know the specific nature of the charge he is com- 
pelled to meet.* 

Topic II. Fraudulent obtaining of Board. 

§ 444. Fraud essential. 

There must be some element of fraud about obtaining the 
board in order to bring it within the statute. So where the 
only evidence was that the defendant, after being entertained 
for a week, was unable to pay; that the innkeeper forbade him 
to go until he paid; that he asserted that money was due him 
in a neighboring city, and the innkeeper allowed him to go to 
get it; and that he did not return with the money, it was 
held that a conviction could not be supported.* Judge Ross 
said: "If an impecunious guest who has been guilty of no 
fraud except inability to pay, is unable to pay the amount of 
a board bill already incurred, it would seem from the conten- 
tion of the complainant that he must either remain and in- 
crease his liability and the landlord's loss, or if he goes away 
openly, and for the ostensible purpose of obtaining the money 
to pay the amount of the bill, that he is liable to arrest and 
conviction. This would amount practically to liability to 
conviction in every case of inability to pay a board bill. I do 
not think that the statute contemplates such a result. A 
hotel keeper can require payment in advance from his guests, 
he has a common-law and statutory lien upon the baggage 
of his guests, and he is protected from actual fraud, and this 
is all. The mere fact of inabihty to pay a hotel bill is not 
made a crime." 

§ 445. False representation required. 

The statute is akin to the statutes punishing one who ob- 
tains property by false pretences, and is to be interpreted in 

8 Commonwealth v. Demiis, 1 Pa. Co. Ct. 278 (1884). 
» People V. Nicholson, 25 N. Y. Misc. 266, 55 N. Y. Supp. 447 (1898). 

[299] 



§ 446.] Innkeepers. [Chap. XXXII. 

the same way. The false pretence by means of which the 
board is obtained must therefore be made with reference to 
a past or existing fact; a promise to do something in the 
future is not such a false pretence as to justify a conviction 
under the statute, even if the promise was not kept. Thus, 
where a boarder promised to pay his board as soon as he drew 
his pay as clerk of the general assembly, but when he drew 
his pay he left the inn and the city without paying his board, 
the statute was not violated.^" Judge EUison said: "The 
statute upon which this indictment is founded cannot be dis- 
tinguished in this respect from the sections relating to false 
pretences, cheats, devices, etc. It simply places obtaining 
board in the same category with other things obtained by 
false pretences. The matter charged here was a false rep- 
resentation, or statement, or pretence made by defendant, that 
in the future, viz., when he drew his pay as clerk in the general 
assembly, he would pay his board. The indictment does not 
aver, nor is it pretended, that defendant made any representa- 
tion as to any existing matter which was false. He was, at 
the time, a clerk in the general assembly, and his promise, 
representation, -statement or pretence, that he would pay his 
board when he should, in the future, draw his money as clerk, 
was no more than if he had promised 'to pay as soon as he 
should get the money.' Everyone who boards at a hotel or 
boarding house directly or indirectly promises to pay his 
board, and yet it would scarcely be thought such promise, 
though false, would subject the promisor to a criminal prosecu- 
tion." 

§ 446. Pretence must be made with fraudulent motive. 

The pretence must be made for the purpose of obtaining 
the board. In a Missouri case " the defendant registered at 
the Southern Hotel on July 29, and was assigned to a room. 

i« State V. Tull, 42 Mo. App. 324 (1890). See to the same effect State v. 
Kingsley, 108 Mo. 135, 18 S. W. 994 (1891). 

" State V. Kingsley, 108 Mo. 135, 18 S. W. 994 (1891). 

[300] 



Chap. XXXII.] Ceimes against Innkeepers. [§ 447. 

On July 31 she sent for the manager, rented a room as a studio, 
stating that she was an artist, and inquired when the bills 
were payable. Being told that they were payable weekly, 
she said that it would be inconvenient to pay at the end of 
the week, because she expected a remittance in two weeks; 
and asked that her bill might be payable then. The manager, 
without asking from whom she expected the remittance, 
assented. No remittance coming at the end of two weeks she 
was, after a few days, excluded from the hotel and indicted 
under the statute. The Supreme Court held that upon this 
evidence she should be discharged. Mr. Justice Thomas said: 
"We do not think it can be fairly inferred from the evidence 
that defendant in this case stated to the manager of the South- 
ern Hotel that she expected a remittance, for the purpose of 
obtaining board. She registered at the hotel on June [July] 29, 
and without being questioned or making any statement she 
was assigned a room. In this manner she obtained board 
in the first instance. On June [July] 31 she sent for the man- 
ager, and upon inquiry she was informed that bills for board 
were payable weekly. She replied that she could not pay till 
the end of two weeks, at which time she expected a remittance. 
It appears, therefore, that she got board for two days, and 
she could have continued there for one week, at least, without 
saying a word about payment of the bills. Persons intending 
to perpetrate tricks or obtain money, property or other valu- 
able things by means of a false pretence, do not ordinarily 
proceed in this way. They usually defer their false state- 
ments till they are forced to the wall. Here defendant made 
the statements voluntarily." 

§ 447. Board or other accommodation must be actually obtained. 

The board must be actually obtained in order to have an 
offence under the act; it is not enough that a contract for 
board has been made. Thus, where one has contracted to 
stay at an inn for a certain time and leaves before the time, 
paying for all the board he has had, the act cannot apply. In 

[301] 



§ 447.] Innkeepers. [Chap. XXXII. 

Lundmacher v. Block ^^ it appeared that the guest registered 
at night, and on being asked how long he was to stay said 
he should stay at least until after breakfast. He had notice 
of a rule that a guest staying until after the beginning of a 
meal must pay for that meal. The next morning, a few minutes 
after breakfast was served, he tendered to the clerk the amount 
due for his supper and room; but the clerk, though he knew 
the guest had not eaten breakfast, demanded payment for 
breakfast under the rule, and upon the guest refusing to pay 
caused his arrest and prosecution under the statute. The 
guest having been acquitted brought this action for malicious 
prosecution, and the court held that he might recover; there 
being no reasonable cause to suppose him guilty. Judge Pleas- 
ants said: "He did not obtain the breakfast. Nor can it be 
held that there was a contract, as to either, that he would 
positively remain for any definite time. They were transients, 
whose present purposes in that regard, though stated as 
represented, would not be contracts for the time mentioned, 
but lawfully changeable at their option for any reason there- 
after arising. Nor, if they were contracts would it affect the 
question under consideration. This statute is not to be ex- 
tended by any liberality of construction in favor of innkeepers; 
and we hold that in no proceeding under it is the civil liabihty 
of the guest for any accommodation not actually ' obtained ' 
at all pertinent. If he definitely contracted to remain for a 
week, and left without fault of the innkeeper, at the close of 
the first day, paying or tendering payment for all that he had 
actually obtained, evidence of his refusal to pay for the further 
time contracted for would not be admissible as tending to 
prove an offence, or probable cause for a prosecution, under 
this act. Nor should the jury be permitted, upon either of 
those issues, to consider whether or not the accommodation 
actually obtained was better, in view of what was fm-ther con- 
tracted for, than it otherwise would have been, if payment for 

12 39 lU. App. 553 (1891). 
[302] 



Chap. XXXIL] Crimes against Innkeepers. [§ 448. 

it was made or tendered according to its actual value or regu- 
lar price. The innkeeper will not be allowed to claim that 
if he had understood the guest was to remain only a day 
instead of a week, he would or might have been furnished a 
meaner room, any more than that there would or might have 
been less of benignity in the smiles of the clerk or of alacrity 
in the responses of bell boys or the movements of table waiters. 
Having peculiar rights they are subject to peculiar obliga- 
tions." 

§ 448. Board must be obtained by the pretence. 

The board must be obtained by means of the false pretence. 
If after the board has been obtained the guest employs a false 
pretence to delay the time of payment or to put off the im- 
portunity of his creditors, it does not come within the statute. 
So where a guest had been staying at an inn without settling 
his board bill since January, and in May, just before leaving 
the inn, he made a false pret^ce, he could not be convicted 
under the statute.^* Judge EUison said: "In order to a 
proper conviction under the statute, the defendant must have 
obtained the board by means of the false pretence, and the 
party defrauded must have permitted him to obtain it on the 
faith of, and in reliance upon the truth of, the false representa- 
tion, statement or pretence. The true interpretation of the 
testimony is that at about the time defendant was to leave 
the hotel he made the false promise, substantially all the board 
having been obtained." 

So if the pretence was not believed by the innkeeper the 
offence is not committed. " The proprietor must be shown 
to have been deceived to his injury. If he knew the repre- 
sentations were false, or if he believed they were false, or if 
he did not beheve the statement or representation to be true, 
or if he believed the representation, but, if they had no in- 
fluence upon his conduct, no deception "was practiced. These 
essentials are requisite to the maintenance of a civil action or 

w state V. TuU, 42 Mo. App. 324 (1890). 

[303] 



§ 451.] Innkeepers. [Chap. XXXII. 

defence predicated upon false representations, and surely 
nothing less should suffice to support a criminal prosecu- 
tion." " 

Topic III. Surreptitious removal of Property. 
§ 449- Surreptitious removal as prima facie evidence of fraud. 

Failure to pay the bill or absconding without paying the 
bill and surreptitiously removing or attempting to remove 
baggage, is often made prima facie evidence of fraudulently 
obtaining the board. This clause must be so interpreted as 
not to constitute practically an imprisonment for debt, since 
such imprisonment would be unconstitutional. It cannot 
therefore be so interpreted as to make the mere refusal to pay 
a bill sufficient reasonable cause for prosecution and imprison- 
ment. The removal of the baggage surreptitiously must ac- 
company the refusal to pay, in order to have such effect. ^^ 

§ 450. Surreptitious removal as substantive oflfence. 
' Where the surreptitious removal of baggage after obtaining 
credit is itself the offence, the crime is committed when the 
baggage is removed, not at the time the accommodation is 
obtained. In Commonwealth v. Morton " it appeared that 
accommodations were obtained • and credit extended before 
the passage of the act, but the defendant absconded and 
surreptitiously removed his baggage after the act had come 
into force. It was held that he might be convicted. "The 
offence" the court said "is not complete when credit is ob- 
tained, but, in the language of the law, is complete after the 
defendant obtains credit and then absconds and surreptitiously 
removes his baggage or property." \ 

§451. What sort of removal is surreptitious. 

A surreptitious removal of baggage involves some conceal- 
ment; if it was done openly, though at a time when no one 

"Chauncey v. State, 130 Ala. 71, 30 So. 403 (1901). See also State v. 
Kingsley, 108 Mo. 135, 18 S. W. 994 (1891). 

"Hutchinson v. Davis, 58 111. App. 358 (1895). 
i" 6 Luz. Leg. Reg. (Pa.) 207, 9 Lane. Bar, 79 (1877). 
[304] 



Ghap. XXXII.] Crimes against Innkeepers. [§ 451. 

was watching, the removal would not be surreptitious. "The 
fact that neither appellant nor any of his agents knew that 
he was going away, or taking his baggage away, does not, of 
itself, establish that the removal was surreptitious. He may 
have gone and taken his baggage in the most open and pubUc 
manner, and yet neither appellant nor any of his agents seen 
the removal." " The approved definition of the word is 
"done by stealth, or without legitimate authority, made or 
produced fraudulently; characterized by concealment or un- 
derhand dealing; clandestine;" " and though one of the 
definitions mentions fraud, the fraud meant is obviously a 
fraud used to escape the notice of the person interested; as 
in the example given, the surreptitious edition of a book. 
The word by derivation means, taken away secretly. It is 
therefore obvious that a surreptitious removal is one which 
is done clandestinely so as to escape the notice of the um- 
keeper by reason of the method of doing it. / In Common- 
wealth V. Morton,^^. however, the word "surreptitious" seems 
to have received a different and hardly permissible interpreta- 
tion. The defendant's gun being held by the innkeeper, he 
induced the innkeeper to give it up to him by falsely pretend- 
ing that he wished to lend it to a friend for a short time to 
shoot with, and he would then return it. He failed to return 
it. The court held that the jury upon this evidence might 
find the removal surreptitious. Judge Handley said: "The 
evidence shows that the defendant obtained possession of the 
gun under representations which misled the prosecutor. 
Upon the trial of the case, notwithstanding the defendant was 
called on to testify, he failed to show why the gun was not 
returned, and he also failed to establish the truth of his rep- 
resentations when he secured possession of this property. It 
was left with the jury to say, from all the evidence in the case, 
whether his obtaining the possession was surreptitious within 

"Waterman, P. J., in Hutchinson v. Davis, 58 111. App. 358, 363 (1895). 
\i8 Century Dictionary, s. v. 
il»6 Luz. Leg. Reg. (Pa.) 207, 9 Lane. Bar, 79 (1877). 

20 [305] 



§ 452.] Innkeepers. [Chap. XXXII. 

the meaning of the law. As this was a question of fact, under 
the instructions given by the court, and the jury found the 
defendant guilty, we have no reason to disturb their finding." \ 

§452. Posting of notice not necessary, 

Upon an indictment for absconding and surreptitiously 
removing his baggage from a hotel after obtaining credit for 
food and accommodations, it is improper to admit evidence 
that the proprietor did or did not put up the notices required 
by another section of the act, as it is only when such pro- 
prietor is upon trial for any of the offences enumerated in the 
other section that such evidence is pertinent^?" 

20 Commonwealth v. Morton, 6 Luz. Leg. Reg. (Pa.) 207, 9 Lane. Bar, 
79 (1877). 



[306] 



APPENDIX. 



STATUTES OF THE VARIOUS STATES REGULATING INNS AND 
OTHER PUBLIC HOUSES AND THE RIGHTS OP INNKEEPERS 
AND GUEST. 



ers. 



ALABAMA. 

Civil Code of 1896. 
§ 1. 

In the absence of a special contract, as is 
authorized in the succeeding section, the rights Liability of inn 
of guests, and the liability of the keeper remain "J^}"^^^ ^°^^' 
as at common law (Civ. Code, § 2539). 

§2. 

The keeper of a public inn or hotel may re- 
quire any guest, or person proposing to become 
a guest, to enter into a special contract as to 
the kind and place of board, entertainment, or 
lodging to be furnished such guest, and the price 
therefor to be paid; and if such guest refuses to 
enter into such contract and to accept such 
board, entertainment, or lodging at the price 
proposed, as the keeper may offer, the keeper 
may refuse to receive or to entertain such guest, 
and because of such refusal shall not incur any 
liability whatever. Such special contract must 
be in writing, signed by both parties; and 
thereby the inn or hotel keeper may limit his 

[307] 



Special con- 
tract between 
inn or hotel 
keeper and 
guest author- 
ized. 



Appendix. 



for de- 
posit of val- 
uables. 



Not liable for 
articles not de- 
posited. 



liability for the safety of the goods of such guest, 
as it is defined or declared by the common law 
(Ibid., §2540). 

§3. 

Every keeper of a public inn or hotel in a city 
must provide himself with an iron chest, or other 
safe depository for valuable articles belonging to 
his guests and customers, and must keep posted 
upon his doors and other public places in his 
house of entertainment, written or printed 
notices to his guests and customers, that they 
must leave their valuables with the landlord, 
his agent, or clerk, for safe-keeping, that he may 
make safe deposit of the same in the place pro- 
vided for that purpose (Ibid., § 2541). ^ 

§4. 

Such hotel or innkeeper as shall comply with 
the requirements of the preceding section, shall 
not be Hable for any money, jewelry, watches, 
plate, or other things made of gold or silver, or 
of rare and precious stones, or for other valuable 
articles of such description as may be contained 
in small compass, which may be abstracted or 
lost from any such pubHc inn or hotel, if the 
same shall not be left with the hotel or inn- 
keeper, his clerk, or agent for deposit, imless 
such loss shall occur through the fraud of the 
hotel or innkeeper, or some clerk or servant 



1 Posting this notice on a single door is not sufficient. 
Beale v. Posey, 72 Ala. 323 (1882). It must be posted 
on the doors of all rooms occupied by guests. Lanier v. 
Youngblood, 73 Ala. 587 (1883). The fact that notices 
were posted a year before, at a previous visit of the guest, 
is immaterial. Ibid. 



[308] 



Appendix. 



employed by him in such imi or hotel (Ibid., 
§ 2542). 2 

§5. 

The owner or manager of any theatre holding 
any such license must issue tickets of admis- 
sion to all persons whom they admit to their 
exhibition, and must thereon assign a particular 
seat to each such person, in such part of the 
theatre as the convenience of such owner or 
manager may require (Ibid., § 4122, 1[ 15, re- 
pealed by Acts of 1900-1901, p. 2633). 



Theatre tick- 
ets: provision 
repealed. 



" §6. 

Any person who by fraud or misrepresenta- 
tion obtains board or lodging from the landlord, 
proprietor or keeper of any hotel or boarding 
house, and fails or refuses to pay for the same, 
must, on conviction, be fined not more than 
five hundred dollars, and may also be sentenced 
to hard labor for the county for not longer than 
six months (Penal Code, § 4755).^ 

2 This provision must be construed strictly against the 
innkeeper. Lanier v. Youngblood, 73 Ala. 587 (1883). 
And if the innkeeper fails to post the notice as provided 
in the preceding section, he continues liable as at common 
law. Tbid. 

3 This statute is not unconstitutional. Ex parte King, 
102 Ala. 182, 15 So. 524 (1894). One of the necessary- 
elements of this crime is that the misrepresentations or 
fraud charged should have been relied on by the hotel 
keeper, and induced him to furnish the board and lodging, 
in consequence of which he was deceived to his injury ; 
and hence where such hotel keeper, at the trial of a prose- 
cution under the section, testified that he did not believe 
the statements made by the defendant which were al- 
leged to have constituted the fraud, no conviction could be 
had.— Chauncey v. State, 130 Ala. 71 , 30 So. 403 (1901). 



Obtaining 
board by 
fraud. 



[309] 



Appendix. 



II. 



ARIZONA. 



Revised Statutes of 1901. 



Liens 
baggage. 



on 



§1. 

All hotel, inn, boarding-house or lodging- 
house keepers shall have a lien upon the baggage 
and other property of value of their guests or 
boarders or lodgers, brought into such hotel, 
inn, or boarding house or lodging house by such 
guests or boarders or lodgers for the proper 
charges due from such guests or boarders or 
lodgers for their accommodation, board or lodg- 
ing and room rent, and such extras as are fur- 
nished at their request, with the right to the 
possession of such baggage or other property of 
value, until all such charges are paid (Rev. 
Stat., §2916). 



Hotel keepers 
may sell bag- 
gage after six 
months. 

[310] 



§2. 

Whenever any trunk, carpetbag, valise, box, 
bundle, furniture, merchandise or baggage has 
heretofore, or shall hereafter come into the pos- 
session of the keeper of any hotel, inn, boarding 
or lodging house as such, and has remained or 
shall remain unclaimed for the period of six 
months, such keeper may proceed to sell the same 
at pubUc auction, and out of the proceeds of 



Appendix. 



such sale may retain the charges for storage if 
any, and the expenses of advertising and sale 
thereof; but no such sale shall be made until the 
expiration of four weeks from the first publica- 
tion of notice of such sale in a newspaper pub- 
Ushed in or nearest the city, town, village or 
place in which said hotel, inn, boarding or 
lodging house or warehouse is situated. Said 
notice shall be published once a week for four 
successive weeks, in some newspaper, daily or 
weekly, of general circulation, and shall contain 
a description of each trunk, carpetbag, valise, 
bundle, box, furniture, merchandise or baggage, 
as near as may be, the name of the owner, if 
known, the- name of such keeper, and the time 
and place of such place (sale) ; and the expenses 
incurred for advertising shall be a lien upon 
such trunk, carpetbag, vaUse, box, bundle, 
furniture, merchandise or baggage at a ratable 
proportion, according to the value of such prop- 
erty or thing or article sold; and in case any 
balance arising from such sale shall not be 
claimed by the rightful owner within one week 
from the day of said sale, the same shall be paid 
into the treasury of the county in which such 
sale took place; and if the same be not claimed 
by the owner thereof or his legal representative 
within one year thereafter, the same shall be 
paid into the general fimd of said county (Ibid., 
§ 2917). 

§3. 

Every keeper of a hotel, inn, boarding or 
lodging house shall post in a conspicuous place 
in the office or public room, and in every bed- 
room of said hotel or boarding house, a printed 



Hotel keepers 
must post this 
section. 

[311] 



Appendix. 

copy of this section, with a printed statement of 
charge or rate of charges by the day, week or 
month, as the case may be, for simple meals, 
lodging, or for items furnished. No charge shall 
be made or sum collected or received by any 
such person for any service so enumerated, not 
actually rendered, or for any item not actually 
dehvered, or for any greater or other sum than 
he is entitled to by the general rules and regula- 
tions of said hotel, iim, boarding or lodging 
house. For any violation of this section, or any 
provision here contained, the offender shall for- 
feit to the injured party three times the amount 
of the sum charged in excess of what he is en- 
titled to {Ibid., § 2918). 



Innkeeper lia- 
ble to guests 
for damages 
to property. 



§4. 

An innkeeper is liable for all losses of, or in- 
juries to personal property placed or left by his 
guests under his care; imless occasioned by an 
irresistible, superhuman cause, by a public 
enemy, by the neghgence of the owner, or by the 
act of someone whom be brought into the inn 
{Ibid., §2919). 



Fire-proof 
safe. Notice 
of, must be 
given. 



[312] 



§6. 

If an innkeeper keeps a fire-proof safe, and 
gives notice to a guest, either personally or by 
putting up a printed notice in a prominent place 
in the room occupied by the guest, that he keeps 
such a safe and will not be hable for money, 
jewelry, documents or other articles of unusual 
value and of small compass, unless placed 
therein, he is not liable, except so far as his 
own acts contribute thereto, for any loss of or 



Appendix. 



any injury to such articles if not deposited with 
him and not required by the guest for present 
use (Ibid., § 2920). 

§6. 

It shall be the duty of all hotel, inn, boarding 
and lodging-house keepers to issue receipts or 
checks to guests for all baggage, clothing or 
things of value left with them for safe-keeping, 
but such receipts or checks shall not specify any 
amoimt or value attached to such articles, unless 
by mutual agreement between the party de- 
positing the same and the party receiving it 
{Ibid., §2921). 



Checks for 
baggage, etc. 



§7. 

Any person who shall put up at any hotel, 
inn, or lodging house, and shaH procure any 
food, entertainment or accommodation without 
paying therefor, except where credit is expressly 
given, with intent to cheat or defraud the owner 
or keeper thereof out of the pay for the same; 
or who with intent to cheat or defraud such 
owner, or keeper, out of the pay therefor, shall 
obtain credit by means of any false show of 
baggage or effects brought thereto, or who shall 
with such intent remove or cause to be removed 
any baggage or effects from any hotel, inn or 
lodging house while there is a lien thereon for the 
proper charges due from him, for such accom- 
modation, shall be punished by imprisonment in 
the county jail, not exceeding three months or 
by a fine not exceeding one hundred dollars 
($100) (Laws 1905, ch. 10, §1). 



Punishment 
for fraud on 
innkeepers. 



[313] 



Appendix. 



III. 



ARKANSAS. 



Acts of Arkansas, 1899, Act CLXV. 

An Act to prevent fraud upon hotels, inn or 
boarding-house keepers, and for other purposes. 



Gives keepers 
of hotels lien 
for board and 
lodging. 



Persons de- 
frauding hotel 
keepers by 
fraud, misrep- 
resentation or 
in any other 
way shall be 
subject to fine. 



[314] 



§1. 

Every person operating any hotel, inn or 
boarding house in this State, shall have a lien 
upon the baggage and personal effects of all 
persons receiving food, entertainment or ac- 
commodation thereat or therefrom (Acts of 
1899, p. 300). 

§2. 

Any person who shall put up at any hotel, 
inn or boarding house and shall procure any 
food, entertainment or accommodation without 
paying therefor, except where credit is given by 
express agreement, with intent to cheat or de- 
fraud the owner or keeper thereof, out of the pay 
for the same; or, who with intent to cheat or 
defraud such owner or keeper out of the pay 
therefor, shall obtain credit at any hotel, inn or 
boarding house for such food, entertainment or 
accommodation by means of any false show of 
baggage or effects brought thereto, or who shall 



Appendix. 

with such intent remove or cause to be removed, 
any baggage or effects from any hotel, inn or 
boarding house, without paying the proper 
charges due from him or her for such food, en- 
tertainment or accommodation, shall be guilty 
of a misdemeanor, and upon conviction thereof, 
shall be fined in any sum not less than ten 
dollars ($10) nor more than fifty dollars ($50) 
(Ibid.). 



[315] 



Appendix. 



IV. 



CALIFORNIA. 



Penal Code of 1903. 



§1. 

Every person, and every agent or officer of any 

Innkeepers corporation, carrying on business as an inn- 
and carriers i • >■ 

keeper, or as a common carrier oi passengers, 

who refuses, without just cause or excuse, to 

receive and entertain any guest or to receive and 

carry any passenger, is guilty of a misdemeanor 

(Pen. Code, § 365). 



refusing to re- 
ceive guests. 



§2. 

Any person who obtains any food or accom- 
modation at an hotel, inn, restaurant, board- 
Defrauding ing house or lodging house without paying 
house " t^^r^foi") '^th intent to defraud the proprietor 
or manager thereof, or who obtains credit at an 
hotel, inn, restaurant, boarding house, or lodging 
house by the use of any false pretence, or who, 
after obtaining credit or accommodation at an 
hotel, inn, restaurant, boarding house, or lodging 
house absconds or surreptitiously removes his 
baggage therefrom without paying for his food 
or accommodations is guilty of a misdemeanor 
{Ibid., §537). 
[316] 



Appendix. 



§3. 

Every hotel keeper, lodging-house keeper, and 
innkeeper, or keeper of any place where rooms 
are let to lodgers in which, or any of which such 
places illuminating gas is used, who shall turn 
off, or cause to be turned off at the meter the 
flow of such illuminating gas, during the time 
of the use of any such room or rooms, shall be 
guilty of a misdemeanor; provided, however, 
that this act shall not apply to any of the per- 
sons herein enumerated, when such person or 
persons shall have connected every exit orifice 
upon the gas fixtures used in such place or places 
with a practical and safe automatic gas igniter 
(Stat. 1903, p. 610, § 1). 



Regulating 
use of illumi- 
nating gas. 



§4. 

Every person who owns, leases, lets, or hires, 
to any person or persons, any room or apart- 
ment in any building, house or other structure, 
within the limits of any incorporated city, or 
city and coimty, within the state of California, 
for the purpose of a lodging or sleeping apart- 
ment, which room or apartment contains less 
than five hundred cubic feet of space, in the 
clear, for each person so occup}ang such room 
or apartment, shall be deemed guilty of a mis- 
demeanor, and shall, upon conviction thereof, be 
pimished by a fine of not less than fifty (50) 
dollars or more than five himdred (500) dollars, 
or by imprisonment in the county jail, or by 
both such fine and imprisonment (Stat. 1875, 
1876, p. 632, § 1). 



Cubic air in 
slee p ing 
apartments. 



[317] 



Appendix. 



Punishment 
of person 
sleeping in 
small rooms. 



§6. 

Any person or persons found sleeping or 
lodging, or who hires or uses for the purpose of - 
sleeping in, or lodging in, any room or apart- 
ment, which contains less than five hundred 
(500) cubic feet of space in the clear, for each 
person so occupying such room or apartment, 
shall be deemed guilty of a misdemeanor, and 
shall, upon conviction, be punished by a fine of 
not less than ten (10) or more than fifty (50) 
doUars, or by both such fine and imprison- 
ment (Ibid., § 2). 



Police to in- 
vestigate. 



8 6. 

It shall be the duty of the chief of poHce (or 
such other person to whom the pohce powers 
of a city are delegated) to detail a competent 
and qualified officer or officers of the regular 
force to examine into any violations of any of the 
provisions of this act, and to arrest any person 
guilty of any such violation {Ibid., § 3). 



Political Code of 1903. 



Innkeepers, 
etc., may re- 
tain goods un- 
til charges 
paid. 



[318] 



§7. 

When any goods, merchandise, or other prop- 
erty has been received by any railroad or 
express company, or other common carrier, com- 
mission merchants, innkeepers, or warehouse- 
men, for transportation, or safe-keeping, and are 
not delivered to the owner, consignee, or other 
authorized person, the carrier, commission 
merchant, innkeeper, or warehouseman, may 
hold or store the same with some responsible 



Appendix. 

perison until the freight and all just and reason- 
able charges are paid (Polit. Code, § 3152). 

Civil Code of 1903. 



§8. 

The liability of an innkeeper, hotel keeper, 
boarding - and lodging-house keeper, for losses of 
or injuries to personal property, other than 
money placed by his guests, boarders, or lodgers 
under his care, is that of a depositary for hire; 
provided, however, that in no case shall such 
liability exceed the sum of one himdred dollars 
for each trunk and its contents, fifty dollars for 
each valise or traveUng bag and contents, and 
ten dollars for each box, bundle, or package and 
contents, so placed under his care, unless he 
shall have consented in writing with the owner 
thereof to assume a greater liability (Civ. Code, 
§ 1859).» 



Innkeeper's 
liability. 



§9- 

If an innkeeper, hotel keeper, boarding-house 
or lodging-house keeper, keeps a fireproof safe, 
and gives notice to a guest, boarder, or lodger, 
either personally or by putting up a printed 
notice in a prominent place in the office or the 
room occupied by the guest, boarder, or lodger, 

1 The effect of this clause is to make an innkeeper 
liable for the loss of personal property placed by his 
guests under his care, unless occasioned by an irresistible 
superhuman cause. For this purpose a loss occurring by 
a fire which originated in the battery room of a hotel 
cannot be considered occasioned by an "irresistible super- 
human cause." Fay v. Pacific Imp. Co., 93 Cal. 253, 
26 Pac. 1099, 28 Pac. 943, 27 Am. St. Rep. 198, 16 L. R. A. 
188 (1892). 



How exempt- 
ed from liabil- 
ity. 



[319] 



Appendix. 

that he keeps such a safe and will not be liable 
for money, jewelry, documents, or other articles 
of unusual value and small compass, unless 
placed therein, he is not liable, except so far as 
his own acts shall contribute thereto, for any 
loss of or injury to such articles, if not deposited 
with him to be placed therein, nor in any case 
more than the sum of two hundred and fifty 
dollars for any or all such property of any in- 
dividual guest, boarder, or lodger, unless he shall 
have given a receipt in writing therefor to such 
guest, boarder, or lodger (Ibid., § 1860). 



Lien of board- 
ing - and lodg- 
ing-house 
keepers. 



§10. 

Hotel men, boarding-house and lodging-house 
keepers, shaU have a hen upon the baggage and 
other property of value of their guests, or 
boarders, or lodgers, brought into such hotel, 
inn, or boarding or lodging house by such guests, 
or boarders, or lodgers, for their accommoda- 
tion, board and lodging, and room rent, (and) 
such extras as are furnished at their request, 
with the right to the possession of such baggage, 
or other property of value, until all such charges 
are paid {Ibid., § 1861). 



Unclaimed 
baggage may 
b e sold a t 
auction. 



[320] 



§11. 

Whenever any trunk, carpetbag, valise, box, 
bundle, or other baggage has heretofore come, 
or shall hereafter come, into the possession of 
the keeper of any hotel, inn, boarding or lodging 
house, as such, and has remained, or shall re- 
main, unclaimed for the period of six months, 
such keeper may proceed to sell the same at 
public auction, and out of the proceeds of such 



Appendix. 

sale may retain the charges for storage, if any, 
and the expenses of advertising and sale thereof; 
but no such sale shall be made until the expira- 
tion of four weeks from the first publication of 
notice of such sale in a newspaper published in 
or nearest the city, town, village, or place in 
which said hotel, inn, boarding or lodging house 
is situated. Said notice shall be published once 
a week, for four successive weeks, in some news- 
paper, daily or weekly, of general circulation, and 
shall contain a description of each trunk, carpet- 
bag, vahse, box, bundle, or other baggage, as 
near as may be; the name of the owner, if 
known ; the name of such keeper, and the time 
and place of sale ; and the expenses incurred for 
advertising shall be a lien upon such trunk, 
carpetbag, valise, box, bundle, or other bag- 
gage, in a ratable proportion, according to the 
value of such piece of property, or thing, or 
article sold; and in case any balance arising 
from such sale shall not be claimed by the 
rightful owner within one week from the ,day 
of said sale, the same shall be paid into the 
treasury of the county in which such sale took 
place; and if the same be not claimed by the 
owner thereof, or his legal representatives, 
within one year thereafter, the same shall be 
paid into the general fund of said county (Ibid., 
§ 1862). 

§12. 

Every keeper of a hotel, inn, boarding or Keeper to 
, , ,, . / \ • post rates of 

lodging house, shall post, m (a) conspicuous gi,j^jggg 

place, in the office, or pubUc room, and in every 

bedroom of said hotel, boarding house, inn, or 

lodging house, a printed copy of this section, 

21 [321] 



Appendix. 



Hiring of 
lodgings for 
indefinite 
term. 



and a statement of charge, or rate of charges, 
by the day, and for meals or items fm-nished, 
and for lodging. No charge or sum shall be 
collected or received by any such person for any 
service not actually rendered, or for any item 
not actually delivered, or for any greater or other 
sum than he is entitled to by the general rules 
and regulations of said hotel, inn, boarding or 
lodging house. For any violation of this sec- 
tion or any provision herein contained, the 
offender shall forfeit to the injured party three 
times the amount of the sum charged in excess 
of what he is entitled to (Ibid., § 1863). 

§13. 

A hiring of lodgings or a dwelling house for an 
unspecified term is presumed to have been made 
for such length of time as the parties adopt for 
the estimation of the rent. Thus, a hiring at a 
monthly rate of rent is presumed to be for one 
nionth. In the absence of any agreement re- 
specting the length of time or the rent, the hiring 
is presumed to be monthly {Ibid., § 1944). 



Refusal of ad- 
mission to inns 
etc. , places 
of amuse- 
ment, etc., on 
account of 
race or color, 
imposes civil 
liability. 



[322] 



General Laws of 1903. 

§14. 

That all citizens within the jurisdiction of this 
State shall be entitled to the full and equal ac- 
commodations, advantages, facilities, and privi- 
leges of inns, restaurants, hotels, eating houses, 
barber shops, bath houses, theatres, skating- 
rinks, and all other places of public accommoda- 
tion or amusement, subject only to the conditions 
and Umitations established by law and appUcable 
alike to all citizens (Title 86, Act 604). 



Appendix. 

§16. 

Whoever shall violate any of the provisions 
of the foregoing section, by den5dng to any citi- 
zen, except for reasons applicable alike to every Penalty, 
race or color, and regardless of race or color, the 
full accommodations, advantages, facilities, and 
privileges in said section enumerated, or by aid- 
ing or inciting such denial, or whoever shall make 
any discrimination, distinction, or restriction on 
account of color or race, or except for good cause, 
applicable alike to all citizens of every color or 
race whatever, in respect to the admission of any 
citizen to, or his treatment in, any inn, restau- 
rant, hotel, eating house, barber shop, bath- 
house, theatre, skating-rink, or other public 
place of amusement or accommodation, whether 
such place be licensed or not, or whoever aids or 
incites such discrimination, distinction, or re- 
striction, shall, for each and every such offence, 
be liable in damages in an amount not less 
than fifty dollars, which may be recovered in an 
action at law brought for that purpose {Ibid., 
Act 605). 



§16. 

It shall be unlawful for any corporation, per- 
son, or association, or the proprietor, lessee, or 
the agents of either, of any opera house, theatre, 
melodeon, musuem, circus, caravan, race-course, 
fair, or other place of public amusement or en- 
tertainment, to refuse admittance to any person 
over the age of twenty-one years who presents 
a ticket of admission acquired by purchase, and 
who demands admission to such place; provided, 
that any person under the influence of liquor, 



Unlawful to 
refuse admis- 
sion to places 
of amuse- 
ment. 
Theatres. 



[323] 



Sale of thea- 
tre tickets at 
premium, un- 
lawful. 



Appendix. 

or who is guilty of boisterous conduct, or any 
person of lewd or immoral character, may be 
excluded from any such place of amusement 
(Title 497, Act 4099, § 1). 

§17. 

Any person who is refused admission to any 
place of amusement contrary to the provisions 
of this act is entitled to recover from the pro- 
prietor, lessee, or their agents, or from any per- 
son, association, corporation, or the directors 
thereof, his actual damages and one hundred 
dollars in addition thereto (Ibid., § 2). 

Statutes and Amendments to the Codes, 1905. 

§18. 

Every person who sells or offers for sale any 
ticket or tickets to any theatre or other public 
place of amusement at a price in excess of that 
charged originally by the management of such 
theatre or public place of amusement is guilty of 
a misdemeanor (Acts of 1905, chapter CXL; 
inserted in Penal Code as § 526). 



;324] 



Appendix. 



COLORADO. 

Mills' Annotated Statutes (Supplement), 
1891-1896. 



§1. 

That all persons within the jurisdiction of said 
State shall be entitled to the full and equal en- 
joyment of the accommodations, advantages, 
facilities and privileges of inns, restaurants, eat- 
ing houses, barber shops, pubUc conveyances on 
land or water, theatres, and all other places of 
public accommodation and amusement, subject 
only to the conditions and limitations estab- 
lished by law and applicable alike to all citizens 
(Annot. Stat. Supp., § 423). 



All persons 
entitled to 
equal enjoy- 
ments. 



§2. 

That any person who shall violate any of the 
provisions of the foregoing section by denying 
to any citizen, except for reasons applicable Penalty. 
aUke to all citizens of every race and color, and 
regardless of color or race, the full enjoyment 
of any of the accommodations, advantages, 
facilities or privileges in said section enumerated, 
or by aiding or inciting such denial, shall for 
every such offence forfeit and pay a sum of not 
less than fifty dollars ($50) nor more than five 

[325] 



Appendix. 

hundred dollars ($500) to the person aggrieved 
thereby, to be recovered in any court of compe- 
tent jurisdiction in the county where said 
offence was committed; and shall also for every 
such offence be deemed guilty of a misdemeanor; 
and, upon conviction thereof, shall be fined in 
any sum not less than ten dollars ($10), or more 
than three hundred dollars ($300), or shall be 
imprisoned not more than one year, or both; 
And, provided further, That a judgment in favor 
of the party aggrieved, or punishment upon an 
indictment ' or information shall be a bar to 
either prosecution, respectively (Ibid., §424). 



Obtaining 
food or lodg- 
ing — : misde- 
meanor — pen- 
alty. 



§3. 

Any person who shall obtain food, lodging, or 
other accommodation at any hotel, lodging 
house, furnished room, boarding house, or other 
eating house, with intent to defraud the owner 
or keeper thereof, shall be deemed guilty of a 
misdemeanor and upon conviction thereof shall 
be fined not exceeding one hundred dollars 
($100), or imprisoned in the county jail not less 
than five days, nor more than thirty days, or 
both in the discretion of the court {Ibid., § 1404). 



Proof. 



[326] 



§4. 

Proof that lodging, food or other accommoda- 
tion was obtained by any false pretence, or by 
any false or fictitious show or pretence of any 
baggage, or other property, or that any person 
absconded without paying or offering to pay for 
such food, lodging or other accommodation, or 
that any such person surreptitiously removed 
or attempted to remove his or her baggage shall 



Appendix. 

be prima facie proof of the fraudulent intent 
mentioned in section one of this act {Ihid., 
§ 1405). 



§5. 

No conviction shall be had under this act, 
unless notice of it shall have been posted on the Post copy of 
inside door of the sleeping room of the person P'^*'®***"^ ^^•'" 
sought to be convicted; or in case there are no 
such rooms in connection with the eating house, 
imless such notice shall have been posted in some 
place at or near where guests usually paid their 
bills {Ibid., §1406). 



tions. 



Mills' Annotated Statutes of 1891. 



The keeper of any hotel, tavern, or boarding 
house, or any person who rents furnished or 
unfurnished rooms, shall have a lien upon the 
baggage and furniture of his or her patrons, 
boarders, guests or tenants, for such boarding, 
lodging or rent, and for all costs incurred in 
enforcing such lien (Annot. Stats., § 2854). 



Lien of hotel 
or boarding- 
house keeper. 



§7. 

When any hotel, inn, boarding-house keeper, 
or the keeper of furnished rooms, may hereafter 
retain any baggage of any guest by virtue of any 
lien thereon under the now existing laws of this 
State, such lien may be enforced as follows, viz. : 
The party or parties claiming such lien shall 
address a letter to the best known post office, 
or the post office entered upon the register of 
names in such hotel, inn or boarding house of the 



Baggfage may 
be retained 
and sold. 



[327] 



Appendix. 

party owning the baggage, notifying such party 
of the amount of the lien claimed, and that the 
person claiming the same would on a day and 
hour stated, which shall not be less than thirty 
days from the time of mailing of such notice, 
proceed to sell the baggage of said owner at 
public or private sale, for the payment of the 
charges thereon now allowed by law. All sales 
shown to have been conducted under the notice 
herein required shall be deemed valid and suffi- 
cient {Ihid., § 1407). 



[328] 



Appendix. 



taurant. 



VI. 

CONNECTICUT. 
General Statutes of 1902. 

§1. 

Every person who shall, at any hotel, restau- Defrauding 
rant, or boarding house, receive or cause to be J^eeper of 
furnished any food or accommodation, with in- '*^" 

tent to defraud the keeper of such hotel, res- 
taurant, or boarding house, out of the value or 
price of such food or accommodation, and every 
person who shall obtain credit at any hotel, 
restaurant, or boarding house, by the use of any 
false pretence or device, shall be fined not more 
than fifty dollars, or imprisoned not more than 
thirty days, or both. The departure without 
intent to return, of any guest from any hotel, 
restaurant, or boarding house, without the pay- 
ment of the amoimt due to the keeper thereof, 
and without actual notice to said keeper of the 
intention to depart, shall be •prima facie evidence 
of intent to defraud. Every keeper of a hotel, 
restaurant, or boarding house, shall post in a 
conspicuous place and manner, in the office or 
public room of such hotel, restaurant, or board- 
ing house, a printed copy of this section (Gen. 
Stat., §1427). 



[329] 



Appendix. 



Liens of 
boarding- 
house 
keepers. 



§2. 

When a special agreement shall have been 
made between the keeper of any boarding or 
lodging house and any person boarding or 
lodging at such house, regarding the price of 
such board or lodging, all the baggage and 
effects kept by such person at such house shall 
be subject to a lien in favor of the keeper of 
such house for all such sums as shall be at any 
time due him from such person for board or 
lodging; and such boarding-house or lodging- 
house keeper may detain such baggage and 
effects imtil such debt shall be paid; and, if it 
be not paid within sixty days after it is due, he 
may sell said property, or such part thereof as 
shall be necessary, and apply the proceeds to the 
payment of such debt {Ibid., § 4165). 



Iiiens of hotel 
keepers. 



[330] 



§3. 

Whenever the keeper of any hotel or inn shall 
receive into his hotel or inn any person as a 
boarder, he shall have a Hen and right to detain 
the baggage and effects of such boarder; and 
such lien may be enforced in the manner herein- 
after provided. At any time after thirty days 
after the person incurring any debt or obliga- 
tion has left the hotel or inn wherein such debt 
or obligation was incurred, the debt or obliga- 
tion being still due and unpaid, the proprietor of 
said hotel or inn may sell at public auction for 
cash at the office of said hotel or inn any or all 
baggage or property left at said hotel or inn, and 
apply the avails of said sale toward the pay- 
ment of said debt or obhgation; provided, that 
such sale shall be advertised in a newspaper 



Appendix. 

published, or having a circulation in the town 
where said hotel or inn is situated, three times, 
commencing at least five days before said sale; 
and that, in case the last usual place of abode 
of said debtor is known to or can reasonably be 
ascertained by said hotel keeper, notice of the 
time and place of sale shall be given him by 
mailing such notice to him in a registered letter, 
postage paid, at such last usual place of abode 
at least five days before the time of sale. The 
proceeds of such sale, after deducting the amount 
due to the proprietor of such hotel or inn, and 
all expenses connected with such sale, shaU be 
paid to the owner of the property, or his legal 
representatives, if called for or claimed by him 
or them at any time within one year from the 
date of said sale, and if such balance is not 
claimed or called for as aforesaid within said 
period, then it shall escheat to the State {Ibid., 
§ 4166).! 

1 Except so far as is required by the statute, notice 
need not be given to the owner. Brooks v. Harrison, 
41 Conn. 184 (1874). 



[331] 



Appendix. 



VII. 



DELAWARE. 



Revised Code of 1852, as Amended, 1893. 



Proprietor of 
hotel not lia- 
ble for loss of 
valuables un- 
less deposited 
in safe. 



Proviso. 



§1. 

Whenever the proprietor or proprietors of any 
hotel, inn or boarding house, shall provide a 
good, sufficient and secure safe, in the office of 
such hotel, or other convenient place, for the 
safe keeping of any money, goods, jewelry and 
valuables belonging to the guests and boarders 
of such hotel, inn or boarding house, and shall 
notify the guests and boarders thereof by plac- 
ing in every lodging room, parlor and public 
hall, and other conspicuous places, printed cards 
or notices stating the fact that such safe is pro- 
vided in which such goods, jewelry and valuables 
may be deposited, and that the proprietor or 
proprietors thereof will not be responsible for 
said money, goods, jewelry and valuables unless 
deposited in said safe, and if any such guest or 
boarder shall neglect to deposit such money, 
goods, jewelry or valuables in such safe the 
proprietor or proprietors aforesaid shall not be 
liable to any loss of such money, goods, jewehy 
or valuables sustained by such guest by theft 
or otherwise: Provided, that nothing herein- 
contained shall apply to such an amount of 



[332] 



Appendix. 

money, and such articles of goods, jewelry and 
valuables as is usual, common and prudent for 
any guest or boarder to retain in his room or 
about his person (Laws of Del., vol. 14, ch. 417, 
p. 409, § 1). 



Whenever the proprietor or proprietors of any 
hotel, inn, or boarding house shall post in a 
conspicuous manner as aforesaid notices requir- 
ing said guest or boarder to bolt the door of the 
room or rooms occupied by said guest or boarder, 
or in leaving said room or rooms to lock the 
door and to deposit the key or keys with the 
proprietor or the clerk at the office, and if such 
guest or boarder shall neglect so to do, the 
proprietor or proprietors as aforesaid shall not 
be liable for any baggage of such guest or boarder 
which may be stolen from said room or rooms; 
Provided, that said proprietor or proprietors 
shall clearly establish the fact of said room or 
rooms having been left unbolted or unlocked 
by said guest or boarder, at the time of the loss 
of said baggage as aforesaid (Ibid., § 2). 



Proprietor of 
hotel not lia- 
ble for loss of 
baggage ; 
when. 



Proviso. 



§3. 

If any person, with intent to cheat or defraud 
shall, by any false or fraudulent representations, 
or by any false show of baggage, goods or 
chattels, which are calculated to deceive any 
hotel, inn or boarding-house keeper, obtain lodg- 
ing and credit in any hotel, inn or boarding 
house, and shall subsequently refuse to pay for 
his board and lodging, the person so offending 
shall be guilty of a misdemeanor, and on con- 



Misdemeanor 
to defraud 
hotel keeper. 



[333] 



Appendix. 

viction be sentenced to pay a fine not exceeding 
one hundred dollars, or undergo an imprison- 
ment not exceeding three months, or both or 
either at the discretion of the court {Ibid., § 3). 



Keepers of 
inns, etc., not 
obliged to en- 
tertain cer- 
tain persons. 



Meaning of 
term " cus- 
tomers." 



Proprietors of 
theatres, etc., 
not obliged to 
admit cer- 
tain persons. 



§4. 

That no keeper of an inn, tavern, hotel, or 
restaurant, or other place of public entertain- 
ment or refreshment of travellers, guests, or 
customers, shall be obhged, by law, to furnish 
entertainment or refreshment to persons whose 
reception or entertainment by him, would be 
offensive to the major part of his customers, and 
would injure his business. The term customers, 
shall be taken to include aU who have occasion 
for entertainment or refreshment (Laws of Del., 
vol. 15, ch. 194, §1). 

§5. 

That the proprietor of a theatre, or other 
pubhc place of amusement, shall not be obliged 
to receive into his show, or admit into the place 
where is he pursuing his occupation, any person 
whose presence there would be offensive to the 
major part of his spectators or patrons, and 
thereby injure his business {Ibid., § 2). 



[334] 



Appendix. 



fined. 



VIII. 
FLORIDA. 

Revised Statutes of 1892. 

§1. 
Every house kept in this State for the ac- Hotels de- 
commodation of twenty-five or more lodgers 
or boarders is hereby declared to be a hotel 
(Rev. Stat., § 870). 

§2. 

Every proprietor or manager of a hotel is Rules and 
authorized and empowered to prescribe and '®^'"* '"'^* 
establish reasonable rules and regulations for 
the government and management of the hotel 
and its occupants and employees, and every 
lodger, boarder, guest or person staying, so- 
journing or employed in said hotel shall con- 
form to and abide by said rules and regulations 
so long as he shall remain in or at said hotel, 
and said rules and regulations shall be held and 
deemed to be a special contract and agreement 
between the proprietor and manager of said hotel 
and each and every lodger, boarder, guest, em- 
ployee and person stajdng or sojourning at or in 
said hotel, and shall regulate, fix and control the 
habUities, responsibilities and obligations of 
each, both and all parties; which said rules and 

[335] 



Appendix. 

regulations shall be printed in the English 
language and posted, together with a copy of 
this act, in each bedroom and in some public 
place, such as the office or hall in the hotel 
(Ibid., §871). 



§3. 

Safetobe An iron safe shall be kept in every hotel in 
®P this State for the safe-keeping of the valuables 

of its occupants (Ibid., § 872). 



No liability 
for valuables 
unless de- 
posited. 



§4. 

The proprietor or manager of a hotel in this 
State shall, in no event, be Uable or responsible 
for any loss of any money, jewelry or precious 
stones of any kind whatever belonging to any 
lodger, boarder, guest or occupant of or in said 
hotel, unless the owner thereof shall make a 
special deposit of said property and take a re- 
ceipt in writing therefor from the proprietor or 
manager or a clerk in the office of said hotel, 
which receipt shall set forth the value of said 
property (Ibid., § 873). 



Fastenings of 
bedrooms. 



§5. 

Each bedroom shall be furnished or secured 
with a good, substantial lock and key and a bolt 
on the inside to fasten the same (Ibid., § 874). 



§6. 

Lien for In favor of keepers of hotels and boarding 
oar g an houses for the board and lodging of, and for 
moneys advanced to guests; upon the goods 
[ 336] 



Appendix. 

and chattels belonging to such guests in such 
hotel or boarding house. 

Upon the non-payment of such sums in ac- May eject for 
cordance with the rules of such hotel or boarding non-payment, 
house, the keeper thereof may instantly eject 
such guest therefrom (Ibid., § 1740). 



22 [3371 



Appendix. 



IX. 



GEORGIA. 



Code of 1895; Supplement or 1901. 

§1- 



Definition 
inn. 



of 



Liability of 
innkeeper. 



Guests. 



Liability of 
innkeeper for 
stolen goods. 



[338] 



Under the term "inn" the law includes all 
taverns, hotels and houses of public general 
entertainment for guests (Code, § 2932). 

§2. 

An innkeeper is a depositary for hire, but from 
the peculiar nature of his business, his liabihty 
is governed by more stringent rules {Ibid., 
§ 2933). 

§3. 

All persons entertained for hire at an inn, or 
tavern, or hotel, are guests (Ibid., § 2934). 

§4. 

An innkeeper is bound to extraordinary dili- 
gence in preserving the property of his guests, 
intrusted to his care, and is liable for the same, 
if stolen, where the guest has compUed with all 
reasonable rules of the inn {Ibid., § 2935). 

§5. 

It is not necessary to show actual delivery to 
the innkeeper. Depositing goods in a public 



Appendix. 

room set apart for such articles, or leaving them Proof, 
in the room of the guest, or placing a horse in the 
stable, is a delivery to the innkeeper; if, how- 
ever, the guest delivers his goods to a servant 
under special charge to him to keep the same, 
the innkeeper is not liable therefor {Ihid., § 2936). 

§6. 

The innkeeper may provide an iron safe, or Deposit of 
other place of deposit for valuable articles, and valuables, 
by posting a notice thereof, may require his 
guests to place such valuable articles therein, 
or he will be relieved from responsibility for 
them {Ihid., §2937).i 

§7. 

In case of loss, the presumption is want of Presumption, 
proper dihgence in the landlord. Negligence 
or default by the guest himself, of which the loss 
is a consequence, is a sufficient defence. The 
innkeeper cannot hmit his liability by a public 
notice; he may adopt reasonable regulations 
for his own protection, and the publication of 
such to his guests, binds them to comply there- 
with {Ihid., § 2938). 

§8. 

The innkeeper who advertises himself as such Duty to re- 
is bound to receive, as far as he can accommo- •'®'^® guests, 
date, all persons offering themselves as guests, 
of good character, and who are willing to com- 
ply with his rules. Persons entertaining only 



1 If the notice is not duly posted, the innkeeper con- 
tinues liable as at common law. Murchison v. Sergent, 
69 Ga. 206 (1882). 



[339] 



Appendix. 



a few individuals, or simply for the accommoda- 
tion of travellers, are not innkeepers, but simply 
depositaries for hire, bound to ordinary dih- 
gence (Ibid., §2939). 

§9. 

Lien. The innkeeper has a lien on the goods of all 

his guests for aU his reasonable charges, and 
may retain possession until they are paid; his 
lien attaches though the guest has no title, or 
even stole the property, and the true owner must 
pay the charges upon that specific article before 
receiving the same (Ibid., § 2940). 

§10. 

Checks for It shaU be the duty of the keepers of inns, 
hotels and other houses of pubUc entertainment 
for travellers in this State, to give receipts or 
checks for aU baggage of their guests, delivered 
in such inn, hotel or house of entertainment, 
when requested so to do by such guest; and such 
keeper shall not make any additional charge for 
receipting for, checking or keeping such baggage, 
so long as the owner remains a guest of the house ; 
and if the keeper of any inn, hotel or any other 
public house of entertainment as aforesaid, shall 
violate any provision of this section, he shall be 
guilty of a misdemeanor (Ibid., § 2941). 



Hotel keepers 
on beaches to 
keep life- 
boats. 



[340] 



§11. 

The proprietor or keeper of every hotel, board- 
ing house or other public house or bath house on 
the seacoast of Georgia, where the public may 
resort for purposes of surf bathing, shall at all 
times during the surf-bathing season, keep and 



Appendix. 

maintain at their respective establishments, in 
full view and accessible to bathers and guests of 
such house, a suitable, seaworthy life-boat or 
life raft, fully equipped with oars, oar-locks, 
life-preservers and life-ropes, and mounted upon 
a proper wheeled carriage; which boat or raft 
and apphances shall be kept at all times ready 
for instant use, in case of emergencies to bathers 
requiring the use of such apphances; and in 
default of complying with the provisions of this 
section, no proprietor or keeper of such hotel, 
boarding house, public house or bath house shall 
have the right to collect any debt from any 
guest of such house, the consideration of which 
is board, lodging or other service rendered such 
guest during the surf-bathing season by the 
proprietor or keeper of such house {Ibid., § 2942). 

§12. 

In default of complying with the provisions Penalty, 
of this section, such proprietor or keeper shall be 
guilty of a misdemeanor, and in addition to the 
penalty for such offence, he shall not have the 
right to collect any charge or debt from any 
guest of such house, the consideration of which 
is board, lodging or other service rendered such 
guest during the surf-bathing season by the 
proprietor or keeper (Grim. Code, § 509). 



§13. 

Keepers of inns, hotels, and other houses of 
pubUc entertainment for travellers, shall give 
receipts or checks for all baggage of their guests, 
delivered in such inn, hotel, or house of enter- 
tainment, when requested so to do by such 



Innkeepers to 
give checks 
or receipts for 



[341] 



Appendix, 



Misdemeanor. 



guest; and such keeper shall not make any 
additional charge for receipting for, checking or 
keeping such baggage, so long as the owner 
remains a guest of the house. A violation of 
the provisions of this section shall be a mis- 
demeanor (Ibid., § 603). 



§14. 

Liens. Innkeepers, boarding-house keepers, carriers, 

and livery stable keepers, shall have a hen for 
their dues on the baggage of their guests, on the 
goods and articles transported, and on the stock 
placed in their care for keeping, which shall be 
superior to other liens, except liens for taxes, 
special liens of landlords for rent, liens of 
laborers, and all general liens of which they had 
actual notice before the property claimed to be 
subject to lien came into their control, to which 
excepted liens they shall be inferior (Civil Code, 
§2810). 



Enforce m e n t 
of liens on 
personalty. 



[342] 



§15. 

Liens on personal property, . not mortgages, 
when not otherwise provided, shall be fore- 
closed in accordance with the following pro- 
visions : 

1. There must be a demand on the owner, 
agent or lessee of the property for payment, and 
a refusal to pay, and such demand and refusal 
must be averred. If, however, no such demand 
can be made, by reason of the absence, from the 
county of his residence, of the party creating 
the lien on personal property, by reason of re- 
moval from the same, absconding from the same, 
or other reasons showing an intention to be 



Appendix. 

absent to defeat such demand, then the party 
holding such hen shall not be obliged to make 
a demand, or affidavit thereof, but may fore- 
close without such demand, by stating, on oath, 
why no such demand was made. 

2. It must be prosecuted within one year after 
the debt becomes due. 

3. The person prosecuting such lien, either 
for himself or as guardian, administrator, execu- 
tor or trustee, must, by himself, agent or at- 
torney, make affidavit, showing all the facts 
necessary to constitute a lien under this Code, 
and the amount claimed to be due. If the 
amount claimed is under one hundred dollars, 
the application may be made to a justice of the 
peace, who may take all the other steps herein- 
after prescribed, as in other cases in this court. 

4. Upon such affidavit being filed with the 
clerk, it shall be the duty of the clerk of the 
Superior Court or the justice of the peace, if 
in his court, to issue an execution instanter 
against the person owing the debt, and also 
against the property on which the lien is claimed, 
or which is subject to said lien, for the amount 
sworn to, and the cost, which execution, when 
issued, shall be levied by any sheriff of this 
State, or bailiff, if the amount be less than one 
himdred dollars, on such property subject to 
said hen, under the same rules and regulations 
as other levies and sales under execution. 

5. Affidavits may be made before any officer 
authorized to administer an oath. 

6. If the person defendant in such execution, 
or any creditor of such defendant, contests the 
amount or justice of the claim, or the existence 



[343] 



Appendix. 

of such lien, he may file his affidavit of the fact, 
setting forth the ground of such denial, which 
affidavit shall form an issue to be returned to 
the court and tried as other causes. 

7. If only a part of the amount claimed is 
denied, the amount admitted to be due must be 
paid before the affidavit shall be received by 
the officer. 

8. The defendant may replevy the property 
by giving bond and security in double the 
amount claimed, for the payment of the even- 
tual condemnation money (Ibid., §2816). 



Liens of 
pawnees, inn- 
keepers, etc., 
how satisfied. 



§16. 

Liens of pawnees, innkeepers, boarding-house 
keepers, livery-stablemen and attorneys at law, 
in possession of personal property under a lien 
for fees, shall be satisfied according to the pro- 
visions of section 2958 of this Code, in cases 
where there is no notice of conflicting liens; 
but if there is a conflicting lien, the mode of 
foreclosure pointed out in section 2816 shall 
be pursued {Ibid., §2818). 



§17. 

Sale the by The pawnee may sell the property received 
pawnee. jjj pledge after the debt becomes due and re- 

mains unpaid; but he must always give notice 
for thirty days to the pawner of his inten- 
tion to sell, and the sale must be in public, 
fairly conducted, and to the highest bidder, 
imless otherwise provided by contract (Ibid., 
§ 2958). 



[344] 



Appendix. 



X. 



IDAHO. 



Political Code of 1901. 



When any goods, merchandise or other prop- 
erty has been received by any railroad or ex- 
press company, or other common carrier, com- 
mission merchant, innkeeper or warehouseman 
for transportation or safe-keeping, and are not 
deUvered to the owner, consignee or other au- 
thorized person, the carrier, commission mer- 
chant, innkeeper or warehouseman may hold or 
store the same with some responsible person, 
until the freight and all just and reasonable 
charges are paid (Poht. Code, § 597). 



Common car- 
r i e r , i n n- 
keeper, etc., 
may retain 
goods for 
charges. 



§2. 

If no person calls for the property within four 
months from the receipt thereof and pays freight 
and charges thereon, the carrier, commission 
merchant, innkeeper or warehouseman may sell 
such property, or so much thereof, at public 
auction to the highest bidder, as will pay freight 
and charges, first having given twenty days' 
notice of the time and place of sale to the owner, 
consignee, or consignor, when known, and by 
advertisement in a daily paper, ten days (or 



Sale of un- 
claimed prop- 
erty. 



[345] 



Appendix. 

if in a weekly paper, four weeks), published 
where such sale is to take place; and if any 
surplus is left after paying freight, storage, cost 
of advertising and other reasonable charges, the 
same must be paid over to the owner of such 
property at any time thereafter, upon demand 
being made therefor within sixty days after the 
sale (Ibid., §598). 



Unclaime d 
proce eds, 
where to go. 



Fraudulently 
obtaining 
board. 



[346] 



If the owner or his agent fails to demand such 
surplus within sixty days of the time of such 
sale, then it must be paid into the county 
treasury, subject to the order of the owner 
(Ibid., §599). 

Session Laws of 1903. 
§4. 

Any person who shall obtain food, lodging or 
other accommodations at any hotel, lodging 
house, furnished room, boarding house, or other 
eating house with intent to defraud the owner 
or keeper thereof by not paying for the same 
shall be deemed guilty of a misdemeanor and 
upon conviction thereof shall be fined in any 
sum not less than twenty-five (25) dollars and 
not exceeding one hundred (100) dollars or 
imprisonment in the county jail not less than 
five (5) days nor more than thirty (30) days or 
both in the discretion of the court (Laws of 
1903, p. 410, § 1). 

§5. 

Proof that lodging, food, or other accommoda- 
tion was obtained by any false pretence, or by 



Appendix. 



any false or fictitious show of pretence of any 
baggage or other property or that any person 
absconded without paying or offering to pay for 
such food, lodging or other accommodation or 
that any such person surreptitiously removed or 
attempted to remove his or her baggage shall 
be prima facie proof of the fraudulent intent 
mentioned in section one (1) of this act {Ibid., 
§2). 



Evidence of 
intent. 



It shall be the. duty of every hotel, lodging 
house, furnished room, boarding house or other 
eating-house keeper within this State, to keep 
a copy of the two preceding sections of this act 
printed in plain English type posted upon the 
inside entrance door of each public sleeping 
room in such house and no conviction shall be 
had under the provisions of this act unless it 
shall be made to appear to the court that such 
notice was posted upon the inside entrance of 
the door of the sleeping room occupied by the 
person or persons by whom it is alleged the 
crime had been conunitted: Provided, however, 
That when such act is committed against any 
persons who do not keep public sleeping rooms 
in connection with their eating house it shall be 
sufficient to show in such case that said notice 
was so posted in some public place at or near 
where guests usually paid their bills {Ibid., § 3). 



Copy of act 
to be posted. 



[347] 



Appendix. 



XI. 



ILLINOIS. 



Annotated Statutes — Second Edition, 1896. 



Safe — Notice 
to deposit 
valuables. 



§1. 

That hereafter every landlord or keeper of a 
public inn or hotel in this State, who shall con- 
stantly have in his inn or hotel an iron safe, in 
good order, and suitable for the safe custody of 
money, jewelry, and other valuable articles, 
belonging to his guests or customers, shall keep 
posted up conspicuously, on the ofRce, also at 
the inside of every entrance door of every pub- 
lic, sleeping, bar, reading, sitting and parlor 
room of his inn or hotel, notices to his guests and 
customers that they must leave their money, 
jewelry or other valuables with the landlord, 
his agent or clerk, for safe-keeping, that he may 
make safe deposit of the same in the place pro- 
vided for that purpose (Annot. Stat., vol. II, 
p. 2163, chap. 71, par. 1). 



Innkeeper's 
liability lim- 
ited. 



[348] 



§2. 

That such landlord, hotel or innkeeper as 
shall comply with the requirements of the first 
section of this act, shall not be Hable for any 
money, jewelry or other valuables, of gold, 
silver or rare and precious stones, that may be 



Appendix. 

lost, if the same is not delivered to said land- 
lord, hotel or innkeeper, his agent or clerk, for 
deposit, unless such loss shall occur by the hand 
or through the negligence of the landlord, or by 
a clerk or servant employed by him in such 
hotel or inn : Provided, that nothing herein con- 
tained shall apply to such amount of money and 
valuables as is usual, common and prudent for 
any such guest to retain in his room or about 
his person {Ihid., par. 2).^ 

§3. 

Hotel, inn, and boarding-house keepers shall Lien, 
have a lien upon the baggage and other valuables 
of their guests or boarders brought into such 
hotel, inn or boarding house by such guests or 
boarders, for the proper charges due from such 
guests or boarders for their accommodations, 
board and lodgings, and such extras as are fur- 
nished at their request {Ihid., p. 2581, chap. 82, 
par. 42). 

§4. 

That whenever any trunk, carpetbag, valise, Sale of un- 
bimdle, package, or article of property, trans- claimed prop- 
ported, or coming into the possession of any 
railroad or express company, or any other com- 
mon carrier, or innkeeper or warehouseman, or 
private warehouse keeper, shall remain un- 
claimed, and the legal charges thereon unpaid 
during the space of six months after its arrival 
at the point to which it shall have been directed, 



erty. 



1 The burden is on a guest losing jewelry under such 
circumstances to prove such theft or negligence. Elcox 
V. Hill, 98 U. S. 218, 25 L. Ed. 103 (1878). 



[349] 



Appendix. 

and the owner or person to whom the same is 
consigned cannot be found upon diligent in- 
quiry, or, being found and notified of the arrival 
of such article, shall refuse or neglect to receive 
the same and pay the legal charges thereon for 
the space of three months, it shall be lawful for 
such common carrier, innkeeper, warehouseman 
or private warehouse keeper to sell such article 
~ at public auction, after giving the owner or con- 
signee fifteen days' notice of the time and place 
of sale, through the post office, and by adver- 
tising in a newspaper pubHshed in the coimty 
where such sale is made, and out of the proceeds 
of such sale to pay all legal charges on such 
articles, and the overplus, if any, shall be paid 
to the owner or the consignee upon demand 
{Ibid., p. 3959, chap. 141, par. 1). 

§5. 

Defrauding Any person who shall obtain food, lodging or 
innkeeper. other accommodation at any hotel, inn, board- 

ing or eating house with intent to defraud the 
owner or keeper thereof, shall be deemed guilty 
of a misdemeanor, and upon conviction shall be 
punished by a fine not exceeding one himdred 
dollars or imprisonment in the county jail not 
exceeding thirty days (Annot. Stat., p. 1292, 
chap. 38, §243). 2 

2 This statute being a penal one must be strictly con- 
strued. Hutchinson v. Davis, 58 111. App. 358 (1895). 
Refusal to pay damages for a breach of a contract to 
board does not come within the statute; only refusal to 
pay for board actually furnished. Therefore no prosecu- 
tion can be maintained for a refusal to pay for a meal 
not obtained, though a guest, under his contract, it being 
after mealtime, was liable to pay for it. Sundmacher 
V. Block, 39 111. App. 553 (1891). 
[350] 



fraud. 



Appendix. 

§6. 

Proof that lodging, food or other accommo- Prima facie 
dation was obtained by false pretence, or by proof of 
false or fictitious show or pretence of baggage, 
or that the party refused or neglected to pay for 
such food, lodging, or other accommodation on 
demand, or that he or she absconded or left the 
premises without paying or offering to pay for 
such food, lodging or other accommodation, or 
that he or she surreptitiously removed or at- 
tempted to remove his or her baggage, shall be 
prima facie proof of the fraudulent intent men- 
tioned in section one of this act, but this act 
shall not apply to regular boarders, nor when 
there has been an agreement for delay in pay- 
ment (Ibid., §244) .3 

3 In order to avoid declaring the statute unconstitutional 
as creating imprisonment for debt, the court has inter- 
preted the statute as requiring both refusal to pay (or 
absconding) and surreptitious removal of baggage in 
order to constitute the prima facie proof spoken of in the 
act. Hutchinson v. Davis, 58 111. App. 358 (1895). 
Surreptitious removal involves fraud and concealment; 
and it is not committed when the baggage is removed 
openly, even though the removal was not in fact seen 
by the innkeeper. Ibid. 



[351] 



Appendix. 



XII. 
INDIANA. 

Burns' Annotated Statutes of 1901. 



Defrauding 
hotels and 
boarding 
houses. 



Baggage re- 
tained for 
payment. 



[352] 



§1. 

Any person or persons who shall obtain food, 
lodging, entertainment or other accommodations 
at any hotel, inn, restam'ant, rooming, boarding 
or eating house with intent to defraud the owner 
or keeper thereof, shall be fined not exceeding 
twenty-five dollars ($25), or imprisoned in the 
county jail or city workhouse not exceeding 
sixty days, or both (Annot. Stat., § 7254a). 

§2. 

Any person or persons boarding or lodging, 
who have boarded or lodged, at any hotel, inn, 
boarding, eating, lodging house or restaurant, 
as provided in this act, shall not be permitted to 
remove any trunk, valise or other baggage there- 
from, which he or they may have therein, until 
all claims for bills, lodging, entertainment or 
accommodation have been fully paid and satis- 
fied in accordance with the regular advertised or 
special contract rates of said hotel, inn, board- 
ing, eating, lodging house or restaurant, and any 
person or persons who shall remove or attempt 
to remove any such trunk, valise or baggage, or 



Appendix. 

other article of value, without satisfying said 
claims or bills, shall be guilty of the same of- 
fences named in section one (1) of this act, and 
shall be pimished accordingly (Ibid., § 72546).* 



§3. 

The owner or keeper of any hotel, inn, res- Lien on bag- 
taurant, boarding or eating house, as provided sage, sale, 
in this act, shall, after demand for payment be 
made of the person or persons owing any such 
claims or bills, as set out in the preceding section 
of this act, have a lien against the personal 
property and the wages due of any person or Lien even 
persons who may owe said owner or keeper for *f ^f * wages 
food, lodging, entertainment or other accommo- 
dation, to the extent only of his said claim, and 
the property may be sold to satisfy such claim, 
by said owner or keeper after obtaining judg- 
ment for the same in any court of competent 
jiu-isdiction and posting a written notice on the 
outer door of his hotel, inn, restaurant, board- 
ing or eating house, at least ten days before the 
day of sale at public outcry to the highest bidder, 
and any sum of money remaining from said sale, 
after satisfying the claim, costs and expenses of 
sale, shall be turned over to the person or per- 
sons whose property was sold. When proper 
divisions of such property can be made, such 
part only as shall be necessary to satisfy the 
claim, cost and expenses shall be sold (Ibid., 
§ 7254c). 

1 In State v. Engle, 156 Ind. 339, 58 N. E. 698 (1900) 
it was held that the words, " as provided in this act," 
did not refer to the " intent to defraud," but referred to 
the class of proprietors to be protected, and intent to de- 
fraud is not essential, and need not be alleged in an af- 
fidavit of information. 

23 [353] 



Appendix. 



XIII. 

IOWA. 

Annotated Code of 1897. 

§1. 

Hotel and inn- Keepers of hotels, inns and eating houses, who 
keepers — lia- ghg,!! provide and keep therein a good and suffi- 
cient vault or safe for the deposit of money, 
jewels and other valuables, and shall provide a 
safe and commodious place for the baggage, 
clothing and other property belonging to their 
guests and patrons, and keep posted up in a 
conspicuous place in the office or other public 
room, and in the guests' private apartments 
therein, printed notices, stating that such places 
for safe deposit are provided for the use and 
accommodation of the inmates thereof, shall not 
be liable for the loss of any money, jewels, valu- 
ables, baggage or other property not deposited 
with them, \mless such loss shall occur through 
the fault or negligence of such landlord or 
keeper, or his agent, servant or employee, but 
nothing herein contained shall apply to such 
reasonable amount of money, nor to such jewels, 
baggage, valuables or other property as is usual, 
fit and proper for any such guests to have and 
retain in their apartments or about their per- 
sons. Hotel, inn or eating-house keepers shall 
[354] 



Appendix. 

have a lien upon, and may take and retain pos- 
session of, all baggage and other property be'- 
longing to or under the control of their guests, 
which may be in such hotel, inn or eating house, 
for the value of their accommodations and keep, 
and for all money paid for or advanced to, and 
for such extras and other things as shall be 
furnished, such guest, and such property so re- 
tained shall not be exempt from attachment or 
execution to the amount of the reasonable 
charges of such hotel, inn or eating-house keeper, 
against such guest, and the costs of enforcing 
the lien thereon (Annot. Code, §3138).* 



§2. 

Any person who shall obtain food, lodging or 
other accommodation at any hotel, inn or board- 
ing or eating house, with intent to defraud the 
owner or keeper thereof, shall be fined not ex- 
ceeding one hundred dollars, or imprisoned not 
exceeding thirty days {Ibid., §5076). 



Frauds upon 
hotel keepers. 



§3. 

Proof that lodging, food or other accommo- 
dation was obtained by false pretence, or by 
false or fictitious show or pretence of baggage, 
or that the party refused or neglected to pay for 
such food, lodging or other accommodation on 
demand, or that he absconded or left the prem- 
ises, without paying or offering to pay for such 
food, lodging or other accommodation, or that 
he surreptitiously removed or attempted to re- 

iThe lien covers property of a third person brought 
to the inn by the guest. Brown Shoe Co. v. Hunt, 103 
la. 586, 72 N. W. 765 (1897). 



Kvidence. 



[355] 



Appendix. 

move his baggage, shall be presumptive evidence 
of the fraudulent intent mentioned in the pre- 
ceding section, but this section shall not apply 
to regular boarders, nor when there has been 
an agreement for delay in payment (Ibid., 
§ 5077). 

§4. 

Infringement All persons within this State shall be entitled 
of civil rights, jq the full and equal enjoyment of the accom- 
modations, advantages, facilities and privileges 
of inns, restaurants, chop houses, eating houses, 
lunch counters and all other places where re- 
freshments are served, public conveyances, bar- 
ber shops, bath houses, theatres and all other 
places of amusement. Any person who shall 
violate the provisions of this section by deny- 
ing to any person, except for reasons by law 
apphcable to all persons, the full enjo3Tiient of 
any of the accommodations, advantages, facili- 
ties or privileges enumerated herein, or by aid- 
ing or inciting such denial, shall be guilty of a 
misdemeanor (Ibid., §5008). 



[356] 



Appendix, 



XIV. 

KANSAS. 



General Statutes of 1897. 



§1. 



Any . . . hotel keeper . . . having a lien 
upon goods which may have remained in store 
or in the possession of such bailee for six 
months or more, may proceed to sell such goods, 
or so much thereof as may be necessary to pay 
the amount of the lien and expenses, according 
to the provisions of this act (General Stats., 
chap. 120, § 19). 

§2. 

Before any such property shall be sold, if the 
name and residence of the owner thereof be 
known, at least twenty days' notitfe of such sale 
shall be given him in writing, either personally 
or by mail, or by leaving a notice in writing at 
his residence or place of doing business; but if 
the name and residence be not known, the per- 
son having the possession of such property shall 
cause a notice of the time and place of sale, and 
containing a description of the property, to be 
published at least once a week for the space of 
three weeks successively, in a newspaper if there 
be one published in the county where such sale 
is advertised to take place. If there be no news- 



Lien. 



Owner must 
be notified 
before sale. 



[357] 



Appendix. 

paper published in such county, then said notice 
shall be published in some newspaper of general 
circulation in such county. If the value of the 
property does not exceed twenty dollars, such 
notice may be given by written or printed hand- 
bills posted up in at least five public places in the 
township or city where the bailee resides or the 
sale is to take place, one of which shall be in a 
conspicuous part of the bailee's place of busi- 
ness (Ibid., §22). 

§3. 

Sales for cash. AU sales under this act shall be at public 
auction, for cash {Ibid., § 23). 

§4. 

Proceeds of The proceeds of such sale, after payment of 
sale. (the lien) charges, and the expenses of publica- 

tion and sale, shall, if the owner be absent, be 
deposited with the treasurer of the county where 
the sale takes place by the person making such 
sale, he taking the treasurer's receipt therefor, 
and shall be subject to the order of the person 
legally entitled thereto {Ibid., § 24). 



[358] 



Appendix, 



XV. 

KENTUCKY. 
Compiled Statutes op 1894. 

§1. 

That no innkeeper in this Commonwealth who Liability. 
shall constantly have in his inn an iron safe, or 
suitable vault, in good order, and fit for the safe 
custody of money, bank notes, jewelry, articles 
of gold and silver manufacture, precious stones 
and bullion, and who shall keep a copy of this 
law, printed by itself, in large, plain, English type 
and framed, constantly and conspicuously sus- 
pended in the office, barroom, saloon, reading, 
sitting and parlor room of his inn; and also a 
copy, printed by itself, in ordinary-size plain 
English type, posted upon the inside of the en- 
trance door of every public sleeping room of his 
inn, shall be liable for the loss of any such article 
aforesaid suffered by any guest, unless such guest 
shall have first offered to deliver such property 
lost by him to such innkeeper for custody in such 
iron safe, and such innkeeper shall have refused 
or omitted to take it, and deposit it in such safe 
for its custody, and to give such guest a receipt 
therefor; but every innkeeper shall be liable 
for any loss of the above-enumerated articles by 
a guest in his inn, caused by the theft or negli- 

[359] 



Appendix. 



Houses of 
private en- 
tertainment. 



gence of the innkeeper, or of any of his servants, 
anything to the contrary in this law notwith- 
standing (Comp. Stats., § 2176). 

§2. 

Any person other than the keeper of a tavern 
or house of private entertainment, who shall 
entertain in his house another, or furnish him 
with diet or storage for his goods, not making an 
agreement for compensation therefor, shall not 
recover anything against the person so enter- 
tained or furnished with diet or storage, or against 
his estate, but the person so fm-nishing another 
shall be considered as doing the same of com-tesy 
(Ibid., §2178). 



§3. 

Keeper of. Any person not a tavern keeper, who shall 

furnish for compensation lodging or diet to 
travellers, or to one boarding in his house, or 
provender in his stable or on his land for horses 
or mules, shall be deemed the keeper of a house 
of private entertainment. No license shall be 
required to keep a house of private entertain- 
ment {Ibid., § 2179). 



Tavern li- 
cense. 



[360] 



§4. 

License to keep a tavern outside of an in- 
corporated city or town shall be granted only to 
persons who are prepared with houses, bedding, 
stabling and provender sufficient to accommo- 
date the public, and shall not be granted to any- 
one unless the keeping of a tavern at the place 
proposed is necessary for the accommodation 
of the public, nor until the appUcant shall take 



Appendix. 

an oath, in open court, that he, in good faith, 
intends to keep a tavern for the accommodation 
of the public (Ibid., §4206).i 

§5. 

That all hotel keepers, innkeepers, boarding- 
house keepers and keepers of houses of private 
entertainment shall have a lien on all baggage I-iea on bag- 
and all personal property owned by, and brought ^*^*" 
to, such house of entertainment by the person 
receiving the board, nursing, care or attention 
from such landlord, for the contract price of 
such board, care and attention as is received, 
and in case of no contract price for such board, 
nursing, care or attention, then for a reason- 
able price for same (Acts of 1896, chap. 12, § 1). 

The first section of this act is not intended to 
repeal section two thousand one hundred and 
seventy-eight of the Kentucky statutes {Ibid., 
§2). 

§6. 

When any such lien exists under section one 
of this act in favor of any person, he may, be- 
fore a justice of the peace or a judge of the Affidavit to 
quarterly court of the coimty where the debt is * ™* ®" 
created, by himself or agent or attorney, make 
affidavit to the amount due him and in arrear 
for board, nursing, keeping, care and attention 
to the person so receiving same, and describing, 
as near as may be, the baggage or other personal 
property owned by, and brought to such house 

1 See Commonwealth v. Shortridge, 3 J. J. Marsh. 638 
(1830); Jackson v. Commonwealth, 7 Bush, 99 (1870); 
Commonwealth v. Camp, 4 B. Mon. 385 (1854). 

[361] 



Appendix. 

of entertainment; and, thereupon such officer 
shall issue a warrant, directed to the sheriff or 
any constable or town marshal of said county, 
authorizing him to levy upon and seize the said 
goods for the amoxmt due, with interest and 
costs; but if the said goods have been removed 
from said place with the consent of such land- 
lord, the lien herein provided for shall not con- 
tinue longer than ten days from and after such 
removal {Ibid., §3). 

§7. 

Proceedings. The proceedings under a warrant shall in all 
respects be the same as in cases of distress 
warrant, and none of the said goods shall be 
exempt from seiziu-e or sale {Ibid., § 4). 



Fine imposed 
for defraud- 
ing. 



§8. 

Any person who shall obtain food, lodging or 
other accommodation at any hotel, inn, board- 
ing house, or house of private entertainment 
with intent to defraud the keeper thereof, shall 
be fined in any sum not exceeding one hundred 
dollars, or imprisoned in the county jail not 
exceeding thirty days, either or both, in the 
discretion of the court or jury trying the case 
{Ibid., §5). 



[362] 



Appendix. 



XVI. 

LOUISIANA. 
VooRHiEs' Revised Civil Code of 1889. 



Responsibility 
of innkeeper. 



§1. 

An innkeeper is responsible as depositary for 
the effects brought by travellers who lodge at 
his house; the deposit of such effects is con- 
sidered as a necessary (Rev. Civ. Code, Art. 
2965). 

§2. 

An innkeeper is responsible for the effects 
brought by travellers, even though they were not 
delivered into his personal care, provided, how- 
ever, they were delivered to a servant or person 
in his (employment (Ibid., Art. 2966). 



§3. 

He is responsible if any of the effects be stolen Loss or injury, 
or damaged, either by his servants or agents, or 
by strangers going and coming in the inn {Ibid., 
Art. 2967). 



Delivery of 
goods. 



§4. 

Every landlord or keeper of a public inn or 
hotel, shall be required to provide with an iron 
chest or other safe deposit for valuable articles 



Safe. 



[363] 



Appendix. 

belonging to his guests or customers, and each 
landlord or hotel keeper shall keep posted upon 
his doors and other pubhc places in his house of 
entertainment, written or printed notices to his 
guests and customers that they must leave their 
valuables with the landlord, his agent or clerk, 
for safe-keeping, that he may make safe de- 
posit of the same in the place provided for that 
purpose (Ibid., Art. 2968). 



Limitation 
liability. 



§5. 

Every landlord, hotel or innkeeper who shall 
comply with the requirements of the preceding 
o* articles, shall not be hable for any money, 
jewelry, watches, plate, or other things made of 
gold or silver, or of rare and precious stones or 
for other valuable articles of such description as 
may be contained in small compass, which may 
be abstracted or lost from any such pubhc inn or 
hotel, if the same shall not be left with the land- 
lord, his clerk or agent, for deposit, imless such 
loss shall occur through the fraud or neghgence 
of the landlord, or some clerk or servant em- 
ployed by him in such inn or hotel; provided, 
however, that the provisions of this article shall 
not apply to a wearing watch, or such other 
articles of jewelry as are ordinarily worn about 
the person (Ibid., Art. 2969). 



Forcible theft. 



[364] 



§6. 

He is not responsible for what is stolen by 
force and arms, or with exterior breaking open 
of doors, or by any other extraordinary vio- 
lence {Ibid., Art. 2970). 



Appendix. 



§7. 

The deposition on oath or afiirmation of a Evidence, 
single competent and credible witness as to the 
deposit at inns, may be admitted as a good 
proof, even when the value of the thing so de- 
posited exceeds five hundred dollars; but the 
judge must admit this kind of proof, in that 
case, with circumspection, according to the cir- 
cumstances of the fact and the condition of the 
parties (Ibid., Art. 2971). 

§8. 

Privilege is a right, which the nature of a debt p r i v i 1 e g e or 
gives to a creditor, and which entitles him to be •ie"- 
preferred before other creditors, even those who 
have mortgages (Ibid., Art. 3186). 

§9- 



Innkeepers 
entitled to. 



The debts which are privileged on all the 
movables in general, are those hereafter enu- 
merated, and are paid in the following order: 

1. Funeral charges. 

2. Law charges. 

3. Charges . . . occasioned by the last 
sickness, . . . 

4. Wages of servants. . . . 

5. Supphes of provisions made to the debtor 
or his family . . . during the last year, by 
keepers of boarding houses and taverns. 

6. Salaries in general. 

7. Total rights due to wives by their hus- 
bands (Ibid., § 3191). 

§10. 

The privilege of keepers of boarding houses. Extent of. 
taverns, and other persons comprised in this 

[365] 



Appendix. 

class, extends to the last year due, and so much 
as has expired of the current year {Ibid., § 3213). 



Privilege 
given inn- 
keepers on 
property of 
persons who 
take their 
board or lodg- 
ing with them. 



ill- 
Innkeepers and all others who let lodgings or 
receive or take boarders have a privilege, or 
more properly, a right of pledge on the property 
of all persons who take their board or lodging 
with them, by virtue of which they may retain 
property, and have it sold, to obtain pa3Tiient 
of what such persons may owe them on either 
accounts above mentioned, and this privilege 
shall extend to extras not to exceed ten ($10) 
dollars supplied by the proprietors of hotels, inns 
and boarding-house keepers {Ibid., § 3233, as 
amended, Acts of 1896, p. 35, and Acts of 1898, 
p. 157). 



of third per 
son. 



§12. 

Innkeepers, hotel, boarding-house and lodging- 
O" JP^'>P«Jty house keepers enjoy this privilege on all the 
property which the sojourner has brought to 
their place, whether it belongs to him or not, 
because the property so brought into their place 
has become pledged to them by the mere fact 
of its introduction into their place {Ibid., § 3234, 
as amended 1896). 



Who are trav- 
ellers. 



[366] 



§13. 

The term travellers applies to strangers and 
such as being transiently in a place where they 
have no domicile, take their board and lodging 
at an inn {Ibid., § 3235). 



Appendix. 

§14. 

Whenever any trunk, carpetbag, valise, box, 
bundle or other baggage which shall hereafter 
come into the possession of the keeper of any 
hotel, inn, boarding or lodging house, as such, 
and shall remain unclaimed or imredeemed for 
the period of six months, such keeper may pro- 
ceed to sell the same at public auction, and Sale of unre- 
without judicial proceedings, and out of the !L*™* v^op- 
proceeds of such sale may retain the amount due 
him for board, lodging and extras, and the 
charges for storage, if any, and the expense of 
advertising and sale thereof, but no such sale 
shall be made until the expiration of four weeks 
from the first pubhcation of notice of such sale 
in a newspaper published in or nearest the city, 
town, village or place in which said hotel, inn, 
boarding or lodging house is situated. Said 
notice shall be pubUshed once a week for four 
successive weeks, in some newspaper, daily or 
weekly, of general circulation, and shall contain 
a description of each trunk, carpetbag, vaUse, 
box, bundle or other baggage as near as may 
be; the name of the owner, if known; the name 
of said keeper, and the time and place of sale; 
and the expense incurred for advertising shall 
be a lien upon such trunk, carpetbag, valise, 
box, bundle Or other baggage in a ratable pro- 
portion according to the value of such property, 
or thing or article sold; and in case any balance 
arising upon such sale shall not be claimed by 
the rightful owner within one week from the day 
of said sale the same shall be paid to the Charity 
Hospital of New Orleans {Ibid., § 3236, amended 
Acts of 1896, p. 35). 

[367] 



Appendix. 

§15. 

Prescription. Prescription is a manner of acquiring the 
ownership of property, or discharging debts, by 
the effect of time, and under the conditions 
regulated by law. The prescription by which 
debts are released, is a peremptory and perpetual 
bar to every species of action, real or personal, 
when the creditor has been silent for a certain 
time without urging his claim. The following 
actions are prescribed by one year: 

That of innkeepers and such others, on ac- 
count of lodging and board which they furnish 
(Ibid., Arts. 3457, 3459, 3534).. 



[368] 



Appendix. 



XVII. 



MAINE. 



Revised Statutes op 1903. 



§1. 

Every innholder shall, at all times, be fur- 
nished with suitable provisions and lodging for 
strangers and travellers, and with stable room, 
hay and provender for their horses and cattle; 
and with pasturing, if it is required by the terms 
of his license; and he shall grant such reason- 
able accommodations as occasion requires, to 
strangers, travellers and others (Rev. Stat., 
chap. 29, §5). 

§2- 

In case of loss by fire, innholders are answer- 
able to their guests only for ordinary and rea- 
sonable care in the custody of their baggage or 
other property (Ibid., §6).^ 



Duty of inn- 
holder to pro- 
vide enter- 
tainment. 



Liability in 
case of fire. 



Liability of 
innholder for 
guests' losses. 



§3. 

Innholders are not liable for losses sustained 
by their guests, except for wearing apparel, 
articles worn or carried upon the person to a 
reasonable amount, personal baggage and money 
necessary for travelling expenses and personal 

See Bumham v. Young, 72 Me. 273 (1881). 
24 [ 369 ] 



Appendix. 

use, unless upon delivery or offer of delivery, by 
such guests, of their money, jewelry or other 
property, to the innholder, his agent or servants, 
for safe custody {Ibid., § 7).^ 

§4. 

An innholder against whom a claim is made 
Losses by for loss sustained by a guest, may in all cases 
neg gence of gjj^^ ^j^g^^ gy^j^ j^gg jg attributable to the negli- 
guests. . 

gence of the guest, or to his non-compliance with 

the regulations of the inn; provided, that such 
regulations are reasonable and proper, and are 
shown to have been brought to the notice of the 
guest {Ibid., § 8). 

§5. 
Duties of Every victualler has all the rights and privi- 
victuallers. leges and is subject to all the duties and obliga- 
tions of an innholder, except furnishing lodging 
for travellers, and stable room, hay or provender 
for cattle {Ibid., §9). 

§6. 

Licensing The licensing board shall prosecute for any 
board to pros- YJolations of the foregoing sections that come to 
citizen mav ^^^^^ knowledge, by complaint, indictment or 
prosecute. action of debt; and all penalties recovered shall 

inure to the town where the offence is com- 
mitted. Any citizen of the State may prosecute 
for any violation of the preceding sections in the 

2 Forty dollars for travelling expenses, and a gold 
watch, pair of gold bracelets, a gold thimble, three gold 
rings, and a gold neck-pin taken for the owner's personal 
use are within the exception. Noble v. Milliken, 74 Me. 
225, 43 Am. Rep. 581 (1885). 
[370] 



Appendix. 

same manner as the licensing board may prose- 
cute {Ibid., § 13). 



§7. 

Innholders or keepers of boarding houses have 
a lien on the goods and personal baggage of their 
guests and boarders, to secure the payment of 
any money due from them for board or lodging, 
and may enforce the same by a sale of such 
goods or baggage, in the manner following. 
After such goods or personal baggage have re- 
mained in the possession of such innholder or 
boarding-house keeper for six months, unre- 
deemed, they may be sold at auction to pay 
the sum due for board or lodging, and the ex- 
pense of advertising and selling the same. Such 
innholder or boarding-house keeper shall give 
thirty days' notice of the time and place of such 
sale, in a newspaper published in the town where 
such articles are held, if any, otherwise notice 
thereof shall be posted in three conspicuous 
places therein; said notice shall give a descrip- 
tion of such articles, and the name of the owner; 
and the proceeds of sale, after deducting all 
charges and expense of advertising and notice, 
shall be applied in satisfaction of the claim upon 
which such articles are sold, and the balance, if 
any, shall be held for the benefit of the person 
entitled thereto. All such sales shall be re- 
corded in the office of the town clerk where the 
sale takes place, in a suitable book open to 
public inspection, in which the articles sold shall 
be correctly described, with the charges and 
expenses of advertising and selHng, and the prices 
at which they were sold {Ibid., chap. 93, §65). 



Lien on goods 
and personal 
baggage. 



Goods and 
baggage, un- 
redeemed, 
may be sold. 

Notice of sale. 



Proceeds of 
sale, how ap- 
propriated. 



Record of 
sales shall be 
kept. 



[371] 



Appendix. 



Penalty for 
defrauding 
innkeepers 
and boarding- 
house keepers. 



§8. 

Whoever puts up at an inn, hotel or boarding 
house, and without having an express agreement 
for credit, procures food, entertainment or ac- 
commodation without paying therefor, and with 
intent to defraud the owner or keeper of the inn, 
hotel or boarding house out of the pay for the 
same; or, with intent to cheat or defraud such 
owner or keeper out of the pay therefor, obtains 
credit at an inn, hotel or boarding house for such 
food, entertainment or acconmiodation by means 
of any false show of baggage or effects brought 
thereto; or with such intent, removes or causes 
to be removed any baggage or effects from an 
inn, hotel or boarding house, while there is a 
hen existing thereon for the proper charges due 
from him for fare and board furnished therein, 
shall be punished by imprisonment not exceed- 
ing six months, or by fine not exceeding one 
hundred dollars (Ibid., chap. 127, § 5). 



Copies of law 
to be posted. 



§9- 

Innholders and keepers of hotels and board- 
ing houses shall post up a printed copy of sec- 
tions five and six, in a conspicuous place in each 
room in their inns, hotels and boarding houses. 
Judges of municipal and police courts and trial 
justices shall have jurisdiction of all offences 
arising under section five, where the amount of 
which any such innkeeper or boarding-house 
keeper or the owners thereof have been thus de- 
frauded, does not exceed the sum of twenty 
dollars (Ibid., §6). 



[372] 



Appendix. 



§10. 

If an innholder, confectioner, or keeper of a 
shop, boarding house, or Uvery stable, gives 
credit for food, drink or horse or carriage hire, 
to any pupil of a college or literary institution 
in violation of its rules, he forfeits a sum equal 
to the amount so credited, whether it has been 
paid or not, to be recovered in an action of debt 
by the treasurer of such institution; half to its 
use, and half to the town where it is located; 
and no person shall be licensed by the municipal 
officers for any of said employments, if it ap- 
pears that within the preceding year he had 
given credit contrary to the provisions hereof 
{Ibid., chap. 15, § 21). 



Innholders, 
stable keep- 
ers, and cer- 
tain others, 
not to give 
credit to stu- 
dents. 



Penalty. 



§11. 

If an innholder or victualler, on the Lord's 
Day, suffers any persons, except travellers, 
strangers or lodgers, to abide in his house, yard 
or field, drinking or spending their time idly, at 
play or doing any secular business, except works 
of charity or necessity, he shall be punished by 
fine not exceeding four dollars for each person 
thus suffered to abide; and if after conviction 
he is again guilty, by fine not exceeding ten 
dollars for each offence; and upon a third con- 
viction, he shall also be incapable of holding any 
hcense; and every person so abiding shall be 
fined not exceeding four dollars for each of- 
fence {Ibid., § 26). 



Innholders 
and victual- 
lers shaU not 
allow gam- 
bling, diver- 
sion, or busi- 
ness, on the 
Lord's Day. 



§12. 

No person wearing boots or shoes with spikes 
or calks in the sole or heel thereof shall enter 



[373] 



Appendix. 

Wearing of any public building, hotel, railroad station, rail- 
spiked boots j.Qa^(j gar or steamboat, without special permis- 
and shoes in . . ,. , . . 

pubUc places ^^^^ ^^^^ *"^ owner, lessee, person in charge 
forbidden. thereof, or some officer, agent or servant of 

either of them, or having entered, shall remain 
therein after having been requested to leave 
such pubhc building, hotel, railroad station, 
railroad car or steamboat, by the owner, lessee, 
person in charge thereof or some officer, agent 
or servant of either of them (Ibid., chap. 128, 
§28). 



Penalty for 
violation. 



§13. 

Whoever violates either of the provisions of 
section twenty-eight shall, on complaint and 
conviction, be fined not less than one, nor more 
than ten dollars, but a person having entered 
as aforesaid without permission and remaining 
after having been requested to leave as above 
provided, shall only be convicted of violating 
one of the provisions of section twenty-eight 
{Ibid., §29). 



Printed copies 
of sees. 28 to 
31 must b e 
posted in 
public places. 



[374] 



§14. 

No person shall be convicted of any offence 
under section twenty-eight imless a printed copy 
of sections twenty-eight to thirty-one inclusive 
shall have been posted in a conspicuous place 
in the public building, hotel, railroad station, 
railroad car or steamboat where said offence is 
committed, for at least thirty days prior to the 
commission of said offence, and is also posted 
at the time of said offence (Ibid., § 30). 



Appendix. 

§15. 

Whoever wilfully destroys, defaces or tears Penalty for 
down any such printed copy posted under the destroying 
preceding section, shall forfeit not less than one, 
nor more than ten dollars to be recovered on 
complaint {Ibid., §31). 



[375] 



Appendix. 



XVIII. 



MARYLAND. 



Public General Laws of 1904. 



Fraudulently 
ob taining 
board, etc. 



Every person who shall by any false or fraudu- 
lent representations, or by any false show of 
baggage, goods or chattels, which are calculated 
to deceive any hotel proprietor, keeper or man- 
ager, obtain lodging or credit, or the use of any 
horse or vehicle, or food or stabling for a horse 
or horses in any hotel in this State, or from the 
keeper of any livery stable, and shall subse- 
quently refuse, decline or fail to pay for his 
credit, board or lodging, or use of horse or food 
or stabling for horse furnished him, shall be 
guilty of a misdemeanor, and on conviction 
thereof shall be punished by a fine of not more 
than one hundred dollars or' by imprisonment 
in jail for a term of not less than one month nor 
more than six months, or by both such fine and 
imprisonment in the discretion of the court 
(Pub. Gen. Laws, Art. 27, § 120). 



[376] 



§2. 

Every person who shall at any hotel, inn, 
boarding house or livery stable receive or cause 
to be furnished any food or accommodation for 



Appendix. 



man or beast, and shall fraudulently fail to pay 
for the same, and every person who shall obtain 
credit at any hotel, inn or boarding house by the 
use of any false pretence or device, or by fraudu- 
lently depositing at such hotel, inn or boarding 
house any baggage or property of value less than 
the amount of such credit or of the bill by such 
person incurred; and every person who, after 
obtaining credit or accommodation at any hotel, 
inn or boarding house, shall abscond or fraudu- 
lently depart or remove his baggage therefrom 
without discharging the debt as aforesaid in- 
curred shall be guilty of a misedmeanor, and 
upon conviction thereof shall be punished by a 
fine of not less than one hundred dollars or by 
imprisonment in jail for a term of not less than 
one month nor more than six months, or by 
both such fine and imprisonment in the discre- 
tion of the court {Ibid., § 121), 



The same sub- 
ject. 



§3. 

Any ordinary or innkeeper in any city or 
town, having a population of more than five 
hundred inhabitants, who shall provide an iron 
safe or other secure depository for the keeping 
of the money, jewelry and plate belonging to his 
guests, and who shall take charge for safe keep- 
ing of such money, jewelry and plate shall be 
Uable for the full value of the same if lost or 
stolen while thus in his charge; to be recovered 
before a justice of the peace if such value does 
not exceed the sum of one hundred dollars, and 
if over that sum by action of assumpsit in any 
court having jurisdiction, unless the loss oc- 
curred through fire proved to have happened 



Depository 
for valuables. 



[377] 



Exemption 
from liability 
for valuables 
not so d e- 
posited. 



Hotel and 
innkeeper s 
shall have a 
lien upon bag- 
gage, etc., for 
non - payment 
of board and 
lodging. 



[378] 



Appendix. 

without any negligence upon the part of him- 
self or his agent {Ibid., Art. 71, §5).^ 

§4. 

If any ordinary or innkeeper referred to in the 
preceding section shall cause written or printed 
notices to be put in his chambers and other 
conspicuous places about his house notifying his 
guests of the purport of the preceding section 
and requesting them to deposit their money and 
plate with him or his agent to be designated by 
such notice, then he shall not be responsible for 
the loss by robbery or otherwise; provided, such 
ordinary or innkeeper can prove that he has 
complied with the provisions of this and the 
preceding section, unless such loss occurred from 
collusion or positive negligence on the part of 
such ordinary or innkeeper or his agent (Ibid., 
,§6).2 

§5. 

For the price or value of any food or accom- 
modation furnished to any person at any hotel, 
boarding house, inn or ordinary in this State, 
the proprietor or keeper of such hotel, inn or 
ordinary shall have a hen upon all baggage and 
other property belonging to or under the control 
of such person and in such hotel, boarding house, 
inn or ordinary and may keep possession of the 
same until the price or value of such goods or 

1 This section does not cover clothing and other articles 
of small value. Treiber v. Burrows, 27 Md. 130 (1867). 

2 Under these sections a guest is not required to de- 
posit in the sate of an office in a hotel a sum of money 
reasonably necessary for travelling expenses; what sum is 
necessary is a question for the jury. A watch is not to 
be deposited under these provisions. Maltby v. Chap- 
man, 25 Md. 310 (1866). 



Appendix. 



accommodation shall have been fully paid, 
whether then due or to become due; and for the 
purpose of collecting the said debt after the same 
shaU have been due for a period of fifteen days 
may sell such baggage or other property for cash 
at public sale, upon giving notice of the time, 
place and terms of sale by advertisement pub- 
lished at least twice in one or more newspapers 
pubhshed in the city or county wherein the said 
hotel, inn or ordinary is situated, the first pub- 
lication to be not less than ten days before such 
sale, and the proceeds of sale to be apphed, after 
pa5m[ient of expenses, to the discharge of such 
indebtedness, and the balance, if any, to be paid 
over to the person or persons entitled thereto 
{Ibid., §7). 

§6. 

Any person taking boarders or lodgers into 
his house and renting to them a room or furnish- 
ing them with board or both shall have a lien 
upon any personal effects, goods or furniture 
brought upon the premises in pursuance of such 
contracting for room or board, and it shall be 
lawful to take and retain possession of the same 
until such board or lodging shall have been 
fully paid for whether due or not; and such 
personal effects, goods and furniture may be 
sold, upon reasonable notice of not less than ten 
days after the debt for such board or lodging 
shall have become due and payable, at either 
public or private sale to satisfy such debt, the 
proceeds after paying expenses of such sale to 
be applied in Uquidation of such indebtedness, 
and the balance, if any, paid over to such 
debtor {Ibid., §8). 



Boarding- 
house keepers 
to have lien 
upon personal 
efEe c t s of 
boarders or 
lodgers for 
bo ard and 
lodging; sale 
of such e£Eects 
for satisfac- 
tion of lien. 



[379] 



/ J 



Appendix. 



M arried 
woman to 
have same 
rights and 
powers un- 
der section 
8 as feme 
sole. 



§7. 

A married woman may as landlady and 
proprietress contract with anyone entering her 
house for board or lodging or both, and have 
and pursue the legal remedies given in section 8 
the same as if she were a /erne sole, and shall 
further have and enjoy all the powers, rights 
and remedies with respect to the renting, keep- 
ing and conducting of such boarding or lodging 
house as if she were a /erne sole, and it shall not 
be necessary for her husband to join in any 
contract with reference thereto {Ibid., § 9). 



[380] 



Appendix. 



XIX. 

MASSACHUSETTS. 
Revised Laws of 1902. 

§1- 

Whoever makes any distinction, discrimina- Color or race 
tion or restriction on account of color or race discrimina- 
or, except for good cause, applicable alike to all *°°" 
persons of every color and race, relative to the 
admission of any person to, or his treatment in, 
a theatre, skating rink or other public place of 
amusementj licensed or unlicensed, or in a pub- 
lic conveyance or public meeting, or in an inn, 
barber shop or other public place kept for hire, 
gain or reward, Ucensed or unlicensed, or who- 
ever aids or incites such distinction, discrimina- 
tion or restriction, shall, for each offence, be 
punished by a fine of not more than three hun- 
dred dollars or by imprisonment for not more 
than one year, or by both such fine and im- 
prisonment, and shall forfeit to any person ag- 
grieved thereby not less than twenty-five nor 
more than three himdred dollars; but such per- 
son so aggrieved shall not recover against more 
than one person by reason of any one act of 
distinction, discrimination or restriction (Rev. 
Laws, chap. 212, §89). 

[381] 



Appendix. 



Innholders, 
etc., to have 
suitable food, 
rooms, etc., 
for travellers. 



§2. 

Every innholder and every common victualler 
shall at all times be provided with suitable food 
for strangers and travellers. Every innholder 
shall also have upon his premises suitable rooms, 
with beds and bedding, for the lodging of his 
guests, and, if the Ucensing board so requires 
be provided with stable room, hay and provender 
for their horses and cattle {Ibid., chap. 102, § 5). 



Innholder's 
license to be 
refused, when. 



Penalty on 
innholder for 
refusal to re- 
ceive trav e 1- 
lers. 



§3. 

An innholder's or common victualler's license 
shall not be granted or issued unless at the time 
of making application therefor the applicant has 
upon his premises the necessary implements and 
facilities for cooking, preparing and serving food 
for strangers and travellers; and, if an apphcant 
for an innkeeper's license, unless he also has the 
rooms, beds and bedding and stable room and 
provender for horses and cattle required by law 
{Ibid., §6). 

§4. 

An innholder, who, upon request, refuses to 
receive and make suitable provision for a 
stranger or traveller, and also for his horses and 
cattle, when he may under the provisions of this 
chapter be legally required so to do, shall be 
punished by a fine of not more than fifty dollars; 
and shall also forfeit his license {Ibid., § 7). 



On common 
victualler for 
refusal to sup- 
ply food. 

[382] 



§5. 

A common victualler who, upon request, upon 
any other than the ^jord's Day, refuses to supply 
food to a stranger or traveller, shall be punished 



Appendix. 

by a fine of not more than fifty dollars; and 
shall also forfeit his license {Ibid., § 8). 

§6. 

An innholder shall not be liable for losses sus- Liability of 
tained by a guest, except of wearing apparel, "™^older for 
articles worn or carried on the person, personal erty. 
baggage and money necessary for travelhng ex- 
penses and personal use; nor shall such guest 
recover of an innholder more than one thousand 
dollars as damages for any such loss; but an 
innholder shall be liable in damages to an amount 
not exceeding three thousand dollars for the loss 
of money, jewels and ornaments of a guest 
specially deposited for safe keeping, or offered 
to be so deposited, with such innholder, person 
in charge at the office of the inn or other agent 
of such innholder authorized to receive such 
deposit. The provisions of this section shall 
not affect the innholder's liabiUty under the 
provisions of any special contract for other 
property deposited with him for safe keeping 
after being fully informed of its nature and 
value, nor increase his liability in case of loss by 
fire or overwhelming force beyond that specified 
in the following section {Ibid., § 10). 

§7. 

In case of loss by fire or overwhehning force. For loss by 
innholders shall be answerable to their guests ^^- 
only for ordinary and reasonable care in the 
custody of their baggage or other property 
{Ibid., §11). 

[383] 



Appendix. 

§8. 

Penalty for Whoever puts up at an inn or boarding house 
fraudulently q^^^^ without having an express agreement for 
tertainment ''^^dit, procures food, entertainment or accom- 
at an inn. modation without paying therefor, and with 

intent to cheat or defraud the owner or keeper 
thereof; or, with such intent, obtains credit at 
an inn or boarding house for such food, enter- 
tainment or accormnodation, by means of any 
false show of baggage or effects brought thereto; 
or, with such intent, removes or causes to be 
removed any baggage or effects from an inn or 
boarding house, while a Hen exists thereon for 
the proper charges due from him for fare and 
board furnished therein, shall be punished by a 
fine of not more than fifty doUars or by im- 
prisonment for not more than three months. 
Boarding-house keepers shall post a copy of this 
section in a conspicuous place in each room of 
their boarding houses (Ibid., § 12). 

§9- 

Notice to be Innholders shall post a printed copy of this 
posted. and the three preceding sections in a conspicu- 

ous place in each room of their inns {Ibid., § 13). 



Disposition of 
baggage in 
possession of 
innholders, 
etc. 



[384] 



§10. 

An innholder, after retaining for six months 
from the time of departure of a guest from his 
inn any trunks, bags, valises, parcels, clothing, 
goods or other personal property of a guest 
which has been abandoned by such guest, or 
which such innholder retains by virtue of his 
hen thereon for the unpaid board, lodging and 
other charges of such guest, may sell the same 



Appendix. 

by public auction upon the premises of the inn, 
notice of the time and place of sale first being 
posted in a conspicuous place in the office of the 
inn for four weeks prior to the date of such sale, 
and published once in each of three successive 
weeks in a newspaper, if any, published in the 
city or town in which the inn is situated; other- 
wise in a newspaper published in the county 
in which the inn is situated, the first publica- 
tion of such notice to be not less than twenty- 
one days before the day of sale. A copy of such 
notice shall be sent by mail prepaid and duly 
registered and addressed to said guest at the 
residence registered by him in the register of 
such inn. Such notice shall contain a descrip- 
tive list of all such property and of all such 
specific marks as may serve to identify such 
property, and the name of the guest so far as 
known to such innholder {Ibid., § 14). 

§11. 

The proceeds of such sale, after deducting all 
reasonable charges and expenses incurred in the 
storage and sale of such property, shall be ap- Disposition of 
plied to the discharge of the Hen of such inn- P^'"'®® * <* 
holder thereon for the board, lodging and other 
charges of such guest, and any proceeds re- 
maining thereafter shall be paid to the treasurer 
and receiver general for the use of the common- 
wealth (Ibid., § 15). 

§12. 

If, within three years after such sale, the owner Balance of 

of any such property claims it and proves his proceeds to 

•' r- J- ./ 1 /■ 1 "^ paid to 

ownership thereof, the said proceeds, after de- <„yner. 
ducting all reasonable charges and expenses, 

25 [385] 



Appendix. 

shall be paid over to him by the treasurer and 
receiver general {Ibid., § 16). 



Negligence of 
guests a de- 
fence. 



§13. 

An innholder against whom a claim is made 
for loss sustained by a guest may show that such 
loss is attributable to the negUgence of the guest 
or to his failure to comply with the regulations 
of the inn, if they are reasonable- and proper and 
are shown to have been duly brought to the 
notice of the guest by the innholder (Ibid.,' § 17).^ 



§14. 

Every innholder and common victualler shall 
Innholders' at all times have a board or sign afhxed to his 
signs. house, shop, cellar or store, or in a conspicuous 

place near the same, with his name legibly 
inscribed thereon in large letters and the em- 
ployment for which he is Ucensed inscribed 
thereon, and upon neglect thereof shall forfeit 
twenty dollars {Ibid., § 18). 



Seamen ex- 
empt from 
lien. 



§15. 

A seaman or mariner who has shipped or 
entered into a contract for a voyage from a 
port in this commonwealth shall not be Uable 
to arrest on mesne process on account of a debt 
to a landlord or boarding-house keeper; nor 
shaU a landlord or boarding-house keeper de- 
tain or have a lien upon his wearing apparel 

1 The innkeeper cannot escape liability by the pro- 
visions of this section unless the loss was actually caused 
by the guest's negligence. Burbank v. Chapin, 140 Mass. 
123, 2 N. E. 934 (1885). 



[386] 



Appendix. 

or other property, or hinder, obstruct or delay 
him in the performance of such contract, under 
a penalty of not more than two hundred dol- 
lars {Ibid., chap. 66, § 4). 



§16. 

Whoever, keeping a house, shop, cellar or 
place of pubUc entertainment or refreshment, 
entertains therein on the Lord's Day any per- 
sons other than travellers, strangers, or lodgers, 
or suffers such persons on said day to abide or 
remain therein, or in the yards, orchards, or 
fields appertaining to the same, drinking or 
spending their time idly or at play, or in doing 
any secular business, shall be pimished by a fine 
of not more than fifty dollars for each person so 
entertained or suffered so to abide or remain; 
and upon subsequent conviction, by a fine of 
not more than one hundred dollars; and if con- 
victed three times, he shall thereafter be dis- 
qualified to hold a license {Ibid., chap. 98, § 6). 



Persons keep- 
ing places of 
entertain- 
ment, etc., to 
entertain only 
travellers, 
etc. 



§17. 

An innholder or other person who, being 
licensed to keep a place of pubUc entertainment, 
entertains or suffers to remain or be in his house, 
yard or other places appurtenant, any persons 
other than travellers, strangers or lodgers in 
such house, drinking and spending their time 
there, on the Lord's Day, or on the evening pre- 
ceding the same, shall be punished by a fine of 
not more than five dollars for each offence 
{Ibid., §7). 



Innholder s 
not to enter- 
tain persons 
on Sunday, 
or Saturday 
evening, ex- 
cept. 



[387] 



Appendix. 



Lien of board- 
ing- and lodg- 
ing-house 



§18. 

Boarding- or lodging-house keepers shall have 
a hen on the baggage and effects brought to 
their houses and belonging to their guests, 
boarders or lodgers, except mariners, for all 
proper charges due for fare and board or lodg- 
ing, which may be enforced as provided in the 
five preceding sections (Ibid., chap. 198, § 28).^ 



Admission of 
children to 
theatres, reg- 
ulated. 



§19. 

Whoever, himself or by his servant or agent, 
admits a child under the age of thirteen years 
to any licensed public show or place of amuse- 
ment, unless said child is accompanied by a 
person over the age of twenty-one years, shall, 
on complaint of a parent or guardian of said 
child or of the chief of pohce or a truant officer 
of the city or town in which said child is so ad- 
mitted, be punished by a fine of not more than 
one himdred dollars; but the provisions of this 
section shall not apply to shows and amuse- 
ments which take place before sunset (Ibid., 
chap. 102, §184). 



[388] 



§20. 

Any ofl&cer or person having any duty in any 
way connected with the inspections of theatres, 
etc., provided for by this act, who requests for 
himself or another, or accepts or uses any ticket 
or pass or privilege of admission, or admission, 

2 This lien does not cover goods of a third person brought 
to the inn by the guest. Mills v. Shirley, 110 Mass. 158 
(1872). The lien attaches when the board is furnished, 
though the account is not yet payable. Smith v. Colcord, 
115 Mass. 70 (1874). 



Appendix. 



to any theatre or public hall, for which he is to 
pay or has paid either nothing or a price less 
than that demanded of the pubhc generally, 
and any owner, proprietor, manager, lessee, 
agent or employee of any theatre or pubUc hall, 
or any other person who issues, dehvers, offers 
or allows any such ticket, pass, privilege or ad- 
mission to any such officer or person or to any 
other person at the request, solicitation, procm-e- 
ment, or with the connivance of any such officer 
or person, shall be punished by a fine or not less 
than one hundred nor more than one thousand 
dollars (Acts of 1904, chap. 450, § 14). 



Penalty on 
officers, etc., 
tor accepting, 
and on pro- 
prietoTS, etc., 
for issuing 
free passes, 
etc. 



[389] 



Appendix. 



XX. 

MICHIGAN. 
Compiled Laws of 1897. 



Liability of 
hotel and inn- 
keepers. 



Proviso as to 
amount. 



Further pro 


viso. 


Proviso, 


agreement 


to be in 


writing. 



[390] 



The liability of the keeper of any inn, whether 
individual, partnership or corporation, for loss of 
or injiiry to personal property of his guest, shall 
be that of a depository for hire: Provided, how- 
ever, That in no case shall such liability exceed 
the sum of two hundred fifty dollars; and in 
case of the loss of a trunk or chest, and its con- 
tents, it shall not exceed the sum of one hundred 
fifty dollars; in case of the loss of a valise, 
portmanteau, grip, telescope or dress-suit case, 
and contents, it shall not exceed the sum of 
fifty dollars; and in case of the loss of a box, 
bundle or package, and contents, it shall not 
exceed the sum of ten dollars: And provided 
further. That nothing in this act shall prohibit 
an innkeeper from assuming a greater liability 
than the sum of two hundred fifty dollars for 
the personal effects of his guest: Provided, said 
undertaking and agreement shall be in writing, 
stating the kind of personal property received 
and the value thereof, the kind and extent of 
the liability of said innkeeper, which said agree- 
ment shall be signed by said guests and said 



Appendix. 



innkeeper or his clerk: And provided further, 
That nothing contained in this section shall pre- 
clude any remedy now existing for the enforce- 
ment of the hotel keeper's or innkeeper's lien 
(Public Acts of 1905, No. 42, § 1). 

§2. 

No innkeeper, whether individual, partner- 
ship or corporation, who constantly has in his 
inn a metal safe or suitable vault in good order, 
and fit for the custody of money, bank notes, 
jewelry, articles of gold and silver manufacture, 
precious stones, personal ornaments, railroad 
mileage books or tickets, negotiable or valuable 
papers and bulhon, and who keeps on the doors 
of the sleeping rooms used by his guests suit- 
able locks and bolts, and on the transoms and 
windows of said rooms suitable fastenings, and 
who keeps a copy of this section printed in dis- 
tinct tj^e constantly and conspicuously sus- 
pended in the office and in the ladies' parlor 
or sitting room, barroom, wash room and in 
five other conspicuous places in said inn, or in 
not less than ten conspicuous places in all in 
said inn, shall be hable for the loss of or injury 
to any such property belonging to any guest, 
imless such guest has offered to deliver the 
same to such innkeeper for custody in such 
metal safe or vault, and such innkeeper has re- 
fused or omitted to take it and deposit it in 
such safe or vault for custody, and to give such 
guest a receipt therefor: Provided, however. That 
the keeper of any inn shall not be obliged to 
receive from any one guest for deposit in such 
safe or vault any property hereinbefore de- 
scribed exceeding a total value of two hundred 



Further pro- 
viso. 



When inn- 
keeper not 
liable for loss 
of property. 



Proviso, as to 
acceptance of 
property b e- 
yond certain 
value. 



[391] 



Appendix. 

fifty dollars, except under special agreement as 
hereinbefore provided, and shall not be liable 
for any excess of such property whether received 
or not, but every innkeeper shall be liable for 
any loss of the above enumerated articles of a 
guest in his inn, caused by the theft or negli- 
gence of the innkeeper or any of his servants 

iibid.,^2y 



Hotel k e e p- 
ers, etc., may 
detain bag- 
gage for pay- 
ment of board. 



§3 

The People of the State of Michigan enact, 
That whenever the keeper of any hotel or inn 
or boarding or lodging house shall receive into 
his hotel or inn or boarding or lodging house 
any person as a guest or boarder or lodger, he 
shall have a lien upon and right to detain the 
baggage and effects of such guest or boarder or 
lodger to secure and compel payment of his 
customary charges for the food and lodging fur- 
nished such guest or boarder or lodger, and such 
lien may be enforced in the manner hereinafter 
prescribed (Comp. Laws, §5317). 



When prop- 
erty may be 
sold. 



[392] 



§4. 

Any hotel keeper or innkeeper or boarding- or 
lodging-house keeper who shall have a lien for 
fare, accommodations or board upon any goods, 
baggage or other property, and in his possession 
for three months at least after the departure 
of the boarder or lodger or guest leaving the 

1 The innkeeper cannot be expected to have a safe 
large enough to keep merchandise. In order to avail 
himself of this statute as a defense to an action tor the 
loss of a guest's goods, he must show that he has literally 
complied with it. Myers v. CottrUl, Fed. Cas. No. 9,985, 
5 Biss. 465 (1873). 



Appendix. 



same, or who for a period of six months shall 
have in his custody any unclaimed trunk, box, 
vahse, package, parcel or other chattel prop- 
erty whatever, may proceed to sell the same at 
public auction after first having given notice Notice of in 
to the county treasurer of such intended sale, 
and out of the proceeds of such sale may, in case 
of Hen, retain the amount thereof and the ex- 
pense of advertisement and sale, and in case of 
unclaimed property the expense of storage, ad- 
vertisement, and sale thereof: Provided, In all 
instances, the notice specified in the next sec- 
tion be first given as therein directed {Ibid., 
§ 5318). 



tended sale to 
be given 
county treas- 
urer. 



Proviso as to 
notice. 



§5. 

Fifteen days, at least, prior to the time of the 
sale, a notice of the time and place of holding 
the sale and containing a brief description of 
the baggage and articles to be sold shall be pub- 
lished in a newspaper of general circulation, 
published in the city or town in which such 
hotel, inn or boarding or lodging house is sit- 
uated; but if there be none, then in such news- 
paper published nearest said city or town; and 
shall also be served upon said guest, boarder, 
lodger or owner of such chattel articles or prop- 
erty, if he resides or can be found within the 
county where said hotel, inn, boarding house or 
lodging house is situated, by delivering the same 
to him personally or leaving it at his place of 
residence with a person of suitable age in charge 
thereof. But if such guest, boarder, lodger or 
owner does not reside or cannot be found in 
said coimty, the said notice shall be deposited 



To be pub- 
lished in 
newspaper. 



To be served 
on owner. 



[393] 



Appendix. 



Or mailed. 



Sale, how con- 
ducted. 



in the post office of said city or town with the 
postage prepaid thereon, fifteen days prior to 
said sale, and addressed to said guest, boarder, 
lodger, or owner at his place of residence, if his 
address be known to said hotel, inn, boarding- 
or lodging-house keeper. The sale shall tak^ 
place between the hours of ten o'clock in the 
forenoon and four o'clock in the afternoon, and 
all articles sold shall be to the highest bidder 
for cash {Ibid., §5319). 



Balance 
proceeds. 



§6. 

Such hotel keeper, innkeeper, boarding- or 
lodging-house keeper shall make an entry of 
0* the articles sold and the balance of the proceeds 
of the sale, if any, and within ten days from 
such sale, shall, upon demand, refund such bal- 
ance and surplus to such guest, boarder or per- 
son leaving the articles sold {Ibid., § 5320). 



When to be 
paid to county 
treasurer. 



Affidavit to be 
filed. 



[394] 



§7. 

In case such balance shall not be demanded 
and paid as specified in the last section within 
said ten days, then within five days thereafter 
said hotel keeper, boarding or lodging-house 
keeper, shall pay said balance to the treasurer 
of the county in which such hotel, inn, board- 
ing or lodging house shall be situated, and shall 
at the same time file with said treasurer an af- 
fidavit made by him, in which shall be stated 
the name and place of residence, so far as they 
are known to him, of the guest, boarder or per- 
son, whose goods, baggage or chattel articles 
were sold, the name and residence of the auc- 
tioneer making the sale, and a copy of the no- 



Appendix. 



tice published and how served, whether by per- 
sonal service or by mailing, and if not so served 
and the reason thereof {Ibid., § 5321.) 

§8. 

Said treasurer shall keep surplus and moneys 
for, and credit the same to the person named 
in said affidavit as said guest, boarder, or per- 
son leaving the articles sold, and shall pay the 
same to said person, his or her agent or attor- 
ney, executors or administrators, upon demand 
and evidence satisfactory to said treasurer fur- 
nished of their identity: Provided, That if 
said amount be not claimed within two years 
from the date of sale, it shall be placed in and 
become a part of the contingent fund of the 
county (Ibid., § 5322). 



Treasurer to 
pay to person 
named, any 
surplus. 



Proviso as to 
uncalled for 
claim. 



§9 

Nothing herein contained shall preclude any 
other remedy now existing for the enforcement 
of hotel keeper's, innkeeper's or boarding or 
lodging-house keeper's lien, nor bar their right 
to recover for so much of the debt as shall not 
be paid through said sale {Ibid., § 5323). 

§10. 

The People of the State of Michigan enact, 
That any person who shall put up at any hotel 
or inn as a guest and shall procure any food, 
entertainment or accommodation without pay- 
ing therefor, except when credit is given there- 
for by express agreement, with intent to defraud 
such keeper thereof out of the pay for the same, 
or who, with intent to defraud such keeper out 



Not bar other 
rights. 



Persons at- 
tempting to 
defraud hotel 
keepers, etc., 
guilty of mis- 
demeanor. 



[395] 



Appendix. 

Penalty, of the pay therefor, shall obtain credit at any 
hotel or inn for such food, entertainment or 
accommodation, by means of any false show of 
baggage or effects brought thereto, shall, upon 
conviction thereof, upon the complaint of such 
hotel keeper before a justice of the peace, be 
adjudged guilty of a misdemeanor and shall be 
punished by imprisonment in the county jail 
not exceeding thirty days, or by fine not ex- 
ceeding one hundred dollars, or by both fine 
and imprisonment in the discretion of the jus- 

Proviso. tice: Provided, That the (provision) provisions 
of this act shall not apply to boarders at any 
hotel or inn by the week or month {Ibid., 
§ 11615). 

§11. 

Prima facie Proof that lodging, food or other acconmio- 
proof of fraud, dation was obtained by false pretence, or by 
false or fictitious show or pretence of baggage, 
or that the person refused or neglected to pay 
for such food, lodging or other accommodation 
on demand, or that he absconded or left the 
premises without paying or offering to pay for 
such food, lodging or other accommodation, or 
that he surreptitiously removed or attempted 
to remove his baggage shall be prima facie 
proof of the fraudulent intent mentioned in 
section one of this act (Ibid., § 11616). 



Theatres, con- 
cert ha'lls, 
etc., marking 
of seats in, 
regulated. 

[396] 



§12. 

The People of the State of Michigan enact. 
That it shall not be lawful for the proprietor, 
lessee or manager of any theatre, concert or 
lecture hall, or other place of public entertain- 
ment, to mark, or cause to be marked, any seat, 



Appendix. 



or seats in any theatre, concert, or lecture hall, 
or other place of public entertainment, as sold, 
reserved or taken, unless the seat or seats so 
marked or designated shall have been actually- 
sold as reserved, at least one hour prior to the 
time of beginning each performance, or enter- 
tainment, in said theatre, concert, or lecture 
haU, or place of public entertainment, and the 
pm'chase of reserved seats for the puipose of 
selling them is hereby prohibited (Ibid., § 5466). 

§13. 

Any proprietor, lessee, or manager, or other 
person, who shall violate the provisions of the 
preceding section, shall on conviction thereof. Penalty, 
be fined not less than one doUar, and not more 
than five dollars, for every seat so marked, des- 
ignated or purchased (Ibid., §5467). 

§14. 

That all persons within the jurisdiction of 
said State shall be entitled to the full and equal 
accommodations, advantages, facilities, and 
privileges of inns, restaurants, eating houses, 
barber shops, public conveyances on land and 
water, theatres, and all other places of public 
accommodation and amusement, subject only 
to the conditions and limitations established by 
law and applicable alike to all citizens (Ibid., 
§ 11759). 



Equal accom- 
modations for 
all persona. 



§15. 

That any person who shall violate any of the 
provisions of the foregoing section, by denying 
to any citizen, except for reasons applicable 
alike to all citizens of every race and color, and 



Penalty for 
violation of 
this act. 



[397] 



Appendix. 

regardless of color or race, the fuU accommoda- 
tions, advantages, facilities, or privileges in said 
section enumerated or by aiding or inciting such 
denial, shall for every such offence be deemed 
guilty of a misdemeanor, and upon conviction 
thereof, shall be fined not to exceed one hun- 
dred dollars, or shall be imprisoned not more 
than thirty days, or both (Ibid., § 11760). 



[398] 



Appendix. 



XXI. 

MINNESOTA. 
Statutes of 1894. 

§1- 

Hereafter every landlord or keeper of a public Safes; n o - 
inn or hotel, or boarding-house keeper, in this tices; locks. 
State, who shall constantly have in his inn or 
.hotel an iron safe in good and suitable order 
for the safe custody of money, jewelry or other 
valuable articles belonging to his guests or cus- 
tomers, shall keep posted conspicuously at the 
office, also on the inside of every entrance door 
of every public sleeping, reading, bar, sitting 
and parlor room of such hotel, etc., notice to 
the guests and customers that they must leave 
their money, jewelry, and other valuables with 
the landlord, his agent or clerk, for safe keeping, 
and he or they may make safe deposits of the 
same in the place provided for that purpose. 
Every landlord or keeper of a public inn or hotel 
shall provide locks and bolts for all room doors 
(Stat., § 7997; See Rev. Laws of 1905, § 2810). 

§2. 

Such landlord, hotel, or innkeeper as shall 
comply with the requirements of the first sec- 
tion of this act, shall not be liable for any 

[399] 



Appendix. 

Exemption money, jewelry, or other valuables of gold, 
from liabil- gjiver, or rare and precious stones, that may be 
* ^' lost, if the same is not deUvered to said land- 

lord, hotel, or innkeeper, his agent or clerk, for 
deposit, unless such loss shall occur by the 
hand, or through the negligence, of the land- 
lord, or by a clerk or a servant employed by him 
in such hotel, inn, etc. {Ibid. § 7998; Rev. 
Laws, § 2810).! 

§3. 

A person who obtains any food or accommo- 
dation at any inn, hotel, lodging house or board- 
Defraudinff ^^^ house, without paying therefor, with intent 
innkeepers. to defraud the proprietor or manager thereof, 
or who obtains credit at any irm, hotel, lodging 
house or boarding house, by or through any 
false pretence, or who after obtaining credit and 
accommodation at an inn, hotel, lodging house 
or boarding house, absconds and surreptitiously 
removes his baggage therefrom without paying 
for his food and accommodation is guilty of a 
misdemeanor, and the proprietor or manager of 
any such inn, hotel, boarding or lodging house, 
shall have a hen on any baggage or effects of 

1 To enable an innkeeper to limit his liability as to 
property of a guest by keeping an iron safe and posting 
notices, a notice at the head of the register in which the 
guest signed his name is not available if the guest's at- 
tention was not called to it, so that he might be presumed 
to have understood and assented to it. Olson v. Cross- 
man, 31 Minn. 222, 17 N. W. 375 (1883). 

Where there is no clear proof that defendant innkeeper 
posted the notice required by statute, that valuables must 
be left with him for safe-keeping, and there is no proof 
of actual notice, the entire question is properly left to the 
jury. Chamberlain v. West, 37 Minn. 54, 33 N. W. 114 
(1887). 
[400] 



Appendix, 

any such person in his possession for the amount 
due and unpaid for food or lodging so fraud- 
ulently obtained {Ibid., §7999, amended by 
Laws of 1905, chap. 325; Rev. Laws, § 5164) .^ 



§4. 

All goods or property taken by any hotel, 
inn or boarding-house keeper, and by him held 
for non-payment of any bill for board, lodging 
or accommodation, may be sold after the ex- 
piration of ninety days and default being made 
in the payment of such bill, upon a notice of 
ten days, at public auction, upon notice as in 
cases of constable's sales {Ibid., § 8001 ; Rev. 
Laws, § 2811). 



Goods taken 
for board may 
be sold. 



Exclusio n 
from public 
places on ac- 
count of race, 
color, etc. 



§5. 

That a person who excludes any other person 
within the jurisdiction of the State of Minnesota, 
on account of race, color or previous condition 
of servitude, from the full and equal enjoyment 
of any accommodation, advantage, facility or 
privilege, furnished by innkeepers, hotel keepers, 
managers or lessees, common carriers, or by 
owners, managers or lessees of theatres or other 
places of amusement, or public conveyance on 
land or water, restaurants, barber shops, eating 
houses, or other places of public resort, refresh- 
ment, accommodation or entertainment, or de- 
nies, or aids or incites another to deny to any 
other person because of race, creed or color, or 



2 Under this section the complaint need not allege either 
the board obtained or the baggage removed to be of any 
value. State v. Benson, 28 Minn. 424, 10 N. W. 471 
(1881). 

26 [ 401 ] 



Appendix. 

previous condition of servitude, the full' and 
equal enjoyment of any of the accommodations, 
advantages, faciUties and privileges of any ho- 
tel, inn, tavern, restaurant, eating house, soda 
foxmtain, ice cream parlor, pubhc conveyance 
on land or water, theatre, barber shop or other 
place of pubhc refreshment, amusement, instruc- 
tion, accommodation or entertainment, is guilty 
of a misdemeanor, ptinishable by a fine of not 
less than twenty-five (25) dollars, nor more than 
one hundred (100) dollars, or imprisonment in 
the coimty jail for not less than thirty (30) nor 
more than ninety (90) days. And in addition 
to the punishment prescribed herein he is liable 
in damages, in a sum not less than twenty-five 
(25) nor more than five hundred (500) dollars 
to the party aggrieved, to be recovered in a 
civil action {Ibid., §§ 8002, 8003, as amended by 
Laws of 1897, chap. 349; Rev. Laws, § 2812). 



Consignee to 
keep record of 
personal prop- 
erty. 



[402] 



Whenever any personal property is consigned 
to, or deposited with, any forwarding merchant, 
wharf-keeper, warehouse-keeper, tavern-keeper, 
express company, or the keeper of any depot 
for the reception and storage of tnmks, baggage, 
merchandise, or other personal property, such 
consignee or bailee shall immediately cause to 
be entered, in a book kept by him, a descrip- 
tion of such property, with the date of the 
reception thereof {Ibid., § 2090; Rev. Laws, 
§2797). 

§7. 

If such, property is not left with such con- 
signee or bailee for the purpose of being for- 



Appendix. 



warded or disposed of according to directions 
received by such consignee or bailee, at or be- 
fore the time of the reception thereof, and if 
the name and residence of the owner of such 
property are known to the consignee or bailee, 
he shall immediately notify the owner, by letter 
directed to him and deposited in the post office, 
of the reception of such property {Ibid., § 2091; 
Rev. Laws, §2797). 



To notify own- 
er, when. 



§8. 

If any such property is not claimed and taken 
away within one year after the time it is so 
received, the consignee or bailee may at any 
time thereafter proceed to seU the same in the 
manner provided in this chapter {Ibid., § 2092; 
Rev. Laws, § 2798). 



Property may 
be sold, when. 



§9- 

Before any such property is sold, if the name 
and residence of the owner thereof are known, 
at least sixty days' notice of such sale shall be 
given him, either personally or by mail, or by 
leaving a notice at his residence or place of doing 
business; but if the name and residence of the 
owner are imknown, the person having the pos- 
session of such property shall cause a notice to 
be published, containing a description of the 
property, for the space of six weeks successively, 
in a newspaper, if there is one, printed and pub- 
lished in the same county ; if there is no such 
newspaper, then said notice shall be published 
in a newspaper printed and pubUshed at the 
capital of the State; the last pubUcation of such 
notice shall be at least eighteen days previous 



Notice of sale, 
how given. 



[403] 



Appendix. 

to the time of sale (Ibid., § 2093 ; Rev. Laws, 
§ 2798). 



Affidavit to be 
made and de- 
livered to jus- 
tice. 



§10. 

If the owner or person entitled to such prop- 
erty does not take the same away, and pay the 
charges thereon, after sixty days' notice have 
been given, the consignee or bailee, his agent or 
attorney, shall make and deUver to a justice of 
the peace of the same county an affidavit setting 
forth a description of the property remaining 
linclaimed, the time of its reception, the pub- 
lication of the notice, and whether the owner 
of such property is Imown or unknown (Ibid., 
§ 2099; Rev. Laws, § 2799). 



Justice to 
make inven- 
tory. 



Constable to 
give notice of 
sale. 



[404] 



§11- 

Upon the delivery to him of such affidavit, 
the justice shall cause such property to be 
opened and examined in his presence, and a 
true inventory thereof to be made, and shall 
annex to such inventory an order under his 
hand, that the property therein described shall 
be sold by any constable of the county, at pub- 
lic auction {Ibid., §2095; Rev. Laws, §2800). 

§12. 

The constable receiving such inventory and 
order shall give ten days' notice of the sale, by 
posting up written notices thereof in three or 
more places in such county, and shall sell such 
property at pubHc auction to the highest bidder, 
in the same manner as provided by law for sale 
under executions from justices' com-ts (Ibid., 
§2096; Rev. Laws, §2801). 



Appendix. 



§13. 

Upon completing the sale, the constable shall 
endorse upon the order aforesaid a return of his 
proceedings thereon, and return the same to the 
justice, together with the inventory, and the 
proceeds of the sale after deducting his fees 
{Ibid., §2097; Rev. Laws, § 2801). 

§14. 

From the proceeds of such sale, the justice 
shall pay all legal charges incurred in relation 
to such property, or a ratable proportion of each 
charge, if the proceeds of said sale are not suf- 
ficient to pay all the charges, and the balance, 
if any, he shall immediately pay over to the 
treasinrer of the county in which the same is 
sold, and deUver a statement therewith, con- 
taining a description of the property sold, the 
gross amount of such sale, and the amount of 
costs, charges and expenses paid to each person 
{Ibid., § 2098; Rev. Laws, § 2802). 

§15. 

The coimty treasurer shall make an entry of 
the amount received by him and the time when 
received, and shall file in his office such state- 
ment so delivered to him by the justice {Ibid., 
§2099; Rev. Laws, § 2802). 

§16. 

If the owner of the property sold, or his legal 
representatives, shall, at any time within five 
years after such money is deposited in the 
county treasury, furnish satisfactory evidence 
to the treasurer of the ownership of such prop- 
erty, he shall receive from such treasurer the 



To make re- 
turn to jus- 
tice. 



Proceeds of 
sale, how dis- 
posed of. 



Duty of coun- 
ty treasurer. 



Money depos- 
ited to be de- 
livered to 
owner. 



[405] 



Appendix. 



Unclaime d 
money to be- 
long to coun- 
ty. 



Perishable 
property, how 
sold. 



Pees of jus- 
tice and con- 
stable. 



[406] 



amount so deposited with hm (Ibid., § 2100 ; 
Rev. Laws, § 2803). 

§17. 

If the amount so deposited with any county 
treasurer' is not claimed by the owner thereof 
or his legal representatives within the said five 
years, the same shall belong to the coimty, and 
may be disposed of as the board of county com- 
missioners direct (Ibid., § 2101 ; Rev. Laws, 
§ 2803). 

§18. 

Property of a perishable kind and subject to 
decay by keeping, consigned or left in the man- 
ner before mentioned, if not taken away within 
thirty days after it is left, may be sold by giv- 
ing ten days' notice thereof; the sale to be con- 
ducted, and the proceeds of the same to be ap- 
plied, in the manner before provided in this 
chapter: provided, that any property in a state 
of decay, or that is manifestly liable immedi- 
ately to become decayed, may be sinnmarily 
sold by order of a justice of the peace, after 
inspection therieof as provided in section twenty 
of this chapter (Ibid., § 2102; Rev. Laws, 
§2798). 

§19. 

The fees allowed to any justice of the peace 
under the provisions of this chapter shall be 
one dollar for each day's service, and to any 
constable the same fees as are allowed by law 
for sale upon an execution, and ten cents per 
folio for making an inventory of property (Ibid., 
§2103; Rev. Laws, §2804). 



Appendix. 



XXII. 

MISSISSIPPI. 
Annotated Code of 1902. 

§1. 

Keepers of hotels, boarding houses and res- 
taurants shall have a hen on the goods and per- Lien, 
sonal baggage of their guests and boarders to 
seciu-e the pa3Tnent of any money due from 
them for board and lodgiag; and may enforce 
the same by a seizure and sale of such goods 
and baggage in the manner provided by law for 
enforcing hens for purchase money of goods 
(Code, §2697). 



Any seller of personal property or his assigns, Enforcement 
who shall be about to begin suit for the "* '^^°- 
purchase money thereof, may file with his dec- 
laration or evidence of debt an affidavit desig- 
nating the property sought to be subjected and 
averring therein the habiUty of the property, 
in whole or part, for the debt sued on; where- 
upon the clerk of the court, or justice of the 
peace in cases before him, shall issue a writ of 
summons and seizure, conmianding the officer 
to seize the property and deal with it as in the 
case of an attachment for debt, and to summon 

[407] 



Appendix. 

the defendant as in other cases. The defend- 
ant may replevy the property as in case of at- 
tachment against debtors (Ibid., §2720). 



If, upon the trial, it be found that the plain- 
Trial and tiff is entitled to recover and to subject the 
]u gmen . property to the payment of his debt, judgment 

shall be rendered against the defendant for the 
debt and costs and also for the condemnation 
and sale of the property for the payment of the 
same, or such part thereof as it may be found 
liable for; and if the defendant have given bond 
for the property, and the judgment and costs 
be less than the assessed value thereof, judg- 
ment shall be rendered against the defendant 
and the sureties on his bond for the debt and 
costs; but if the judgment be greater than the 
value of the property, the judgment shall be for 
the redelivery to the officer of the property, or, 
in default thereof, for its assessed value and 
costs. If the plaintiff prove his debt, but fail to 
establish the lien on the property, he shall have 
judgment only for the debt, and shall pay all 
costs incident to the seizinre of the property 
(Ibid., §2721). 



[408] 



Appendix. 



XXIII. 

MISSOURI. 
Revised Statutes of 1899. 



Hotel, inn and boarding-house keepers shall Lien. 
have a lien upon the baggage and other valu- 
ables of their guests or boarders brought into 
such hotel, inn or boarding house by such guests 
or boarders, and upon the wages of such guests 
or boarders, for their proper charges due from 
such guests or boarders for their accommoda- 
tion, boarding and lodging, and such extras as 
are furnished at their request (Rev. Stat., 
§ 4237).! 

§2- 

Hotel, inn and boarding-house keepers may 
sell for cash the baggage and other valuables 
of their guests or boarders, upon which they Unclaimed 
may have a lien for charges as provided in the u^^^^ff ^^^ 
preceding section, or which may be left with tice, etc! 
them unclaimed, after having retained posses- 

1 Goods of a third party brought to the inn by a guest 
are exempt from lien under this section. Wyckoff v. 
Southern Hotel Co., 24 Mo. App. 382 (1887). This lien 
may now be enforced by garnishment of guest's wages. 
Clark V. Haydock, 44 Mo. App. 367 (1891). Wages for 
the last thirty days' services are exempt. Hodo v. 
Benecke, 11 Mo. App. 393 (1882). 

[409] 



[410] 



Appendix. 

sion of the same for the period of not less than 
six months, first giving five days' notice of such 
sale, stating the time, place and terms of sale, 
by advertisement in a newspaper published in 
the city or county where said sale is to take 
place, and if no daily paper is published therein, 
then by one week's notice in a weekly paper 
published therein, or by printed or written hand- 
bills put up at five places in such city or county 
aforesaid; and any sums of money received 
from the proceeds of such sale, after pa3dng all 
charges, and the expense of sale and of storing 
the articles (which said expense of storage shall 
be fifty cents for each parcel), shall be paid into 
the cotmty treasury, and in the city of St. Louis 
into the city treasury, for the benefit of the 
owner, if he shall thereafter appear; but if such 
money be not claimed within one year, it shall 
go into the school fund of the county or city: 
Provided, that when such lien is claimed upon 
the wages of any such guest or boarder, the 
justice shall notify the party designated by the 
plaintiff as owing such guest or boarder, that suit 
has been instituted to enforce such lien, and 
such notice shall be served in the same manner 
and have the same force and effect as garnish- 
ments in attachments, and the party so served 
shall be required to answer, and shall receive 
the same fees as provided in section 3456, Re- 
vised Statutes, "of garnishments." (Ibid., § 
4238). 2 

2 A judgment for the debt is a prerequisite to enforcing 
the lien by this process. Goates v. Acheson, 23 Mo. App. 
255 (1886). And though in the suit a case is not made 
out for enforcing the lien, a judgment may be given for 
the amount of debt proved. Hodo v. Benecke, 11 Mo. 
App. 393 (1882). 



Appendix. 



§3. 

No innkeeper in this State, who shall con- 
stantly have in his inn an iron safe, in good 
order, and suitable for the safe custody of money, 
jewelry and articles of gold and silver manu- 
facture, and of the Uke, and who shall keep a 
copy of sections 7578 and 7579 printed by itself 
in large, plain, English type, and framed, con- 
stantly and conspicuously suspended in the of- 
fice, barroom, saloon, reading, sitting and parlor 
room of his inn, and also a copy printed by 
itself, in ordinary sized plain English type, 
posted upon the inside of the entrance door of 
every pubhc sleeping room of his inn, shall be 
hable for the loss of any such articles aforesaid, 
suffered by any guest, vmless such guest shall 
have first offered to deliver such property lost 
by him to such innkeeper, for custody in such 
iron safe, and such innkeeper shall have refused 
or omitted to take it and deposit it in such safe 
for its custody and to give such guest a receipt 
therefor {Ibid., § 7578) .^ 



Innkeepers, 
when not li- 
able for losses 
of money, etc. 



§4. 

No innkeeper in this State shall be liable for 
the loss of any baggage or other property of a 
guest, caused by fire not intentionally produced 

3 This provision was not complied with where the copy 
of the statute posted was printed in very small type. 
Porter v. Gilkey, 57 Mo. 235 (1874). 

Where a copy of the statute has not been posted in the 
bedroom it is no defence to the innkeeper in a suit by a 
guest for the loss of the property that the guest had read 
a copy of the statute on the register. The statute is to 
be construed strictly, and there is no provision by virtue 
of which actual notice may take the place of posting. 
Batterson v. Vogel, 8 Mo. App. 24 (1879). 



Liability for 
baggage. 



[411] 



Appendix. 



For merchan- 
dise. 



Obtaining 
board, etc., 
by false pre- 
tences. 



[412] 



by the innkeeper or his servants, nor shall he 
be liable for the loss of any merchandise for sale 
or sample belonging to a guest, unless the guest 
shall have given written notice of having such 
merchandise for sale or sample in his possession 
after entering the inn, nor shall the innkeeper 
be compelled to receive such guest with mer- 
chandise for sale or sample; but innkeepers shall 
be liable for the losses of their guests, caused by 
the theft of such innkeeper or his servants, any- 
thing herein to the contrary notwithstanding.* 

§5. 

Every person who shall obtain board or lodg- 
ing in any hotel or boarding house by means of 
any trick or deception or false or fraudulent rep- 
resentation, or statement or pretence, and shall 
fail or refuse to pay therefor, shall be held to 
have obtained the same with the intent to cheat 
and defraud such hotel or boarding-house keeper, 
and shall be deemed guilty of a misdemeanor, 
and upon conviction thereof shall be punished 
by a fine not exceeding five hundred dollars, or 
by imprisonment in the county jail or city work- 
house not exceeding six months, or by both fine 
and imprisonment (Ibid., § 7580).^ 

* Under this section an irmlceeper is not responsible for 
the goods of a travelling salesman stolen from the inn, un- 
less it be shown that the loss was occasioned by the theft 
or negligence of the innkeeper or his servants, if no written 
notice of the character of such goods was given him as 
required, although he knew that the guest had such goods 
for sale in his room. Fisher v. Kelsey, 121 U. S. 383, 
30 L. Ed. 930, 7 Sup. Ct. 929 (1887). 

5 This statute is constitutional. State v. Kingsley, 
108 Mo. 135, 18 S. W. 994 (1891). 

For a proper conviction under the statute relating to 
false pretences, the defendant must have obtained board 



Appendix. 

§6. 

It shall be the duty of every hotel and board- 
ing-house keeper in this State to post a printed 
copy of sections 7580 and 7581 in a conspicuous Oopy of sec- 
place in each room of his or her boarding house, ***"" . *° 
and no conviction shall be had under the fore- 
going section until it shall be made to appear 
to the satisfaction of the court that the provi- 
sions of this section have been substantially 
complied with by the hotel or boarding-house 
keeper making the complaint (Ibid., § 7581). 

by means of false pretences, and the party defrauded 
must have permitted him to obtain it on the faith of, and 
in reliance upon, the truth of the false statement; and 
where the evidence shows that about the time defendant 
was to leave he made the false promise, substantially all 
the board having already been obtained, it fails to make 
out a case. State v. Tull, 42 Mo. App. 324 (1890). 



[413] 



Appendix. 



XXIV. 

MONTANA. 
Annotated Codes of 1895. 

§1- 

Every person, and every agent or officer of 
any corporation, carr3dng on business as an inn- 
Duty to re- keeper, or as a common carrier of passengers, 
ceive gues s. ^j^^ refuses, without just cause or excuse, to 
receive and entertain any guest, or to receive 
and entertain any passenger, is guilty of a mis- 
demeanor (Penal Code, § 655). 

§2. 

An innkeeper is liable for all losses of or in- 
juries to personal property placed by his guests 
Innkeeper's under his care, unless occasioned by an irre- 
* ' ^" sistible superhuman cause, by a public enemy, 

by the negligence of the owner, or by the act 
of someone whom he brought into the inn (Civil 
Code, §2500). 

§3. 

If an innkeeper keeps a fireproof safe, and 

gives notice to a guest, either personally or by 

How exempt- putting up a printed notice in a prominent place 

h"ut ™™ *' ™ ^^^ room occupied by the guest, that he keeps 

such a safe, and will not be liable for money, 

[414] 



Appendix. 

jewelry, documents, or other articles of unusual 
value and small compass, unless placed therein, 
he is not liable, except so far as his own acts 
contribute thereto, for any loss of, or injury to, 
such articles, if not deposited with him, and not 
required by the guest for present use (Ibid., 
§ 2501). 



§4. 

Hotel men, boarding-house and lodging-house 
keepers, shall have a hen upon the baggage and 
other property of value of their guests, or 
boarders, or lodgers, brought into such hotel, 
inn, or boarding or lodging house by such 
guests, or boarders, or lodgers, for the proper 
charges due from such guests, or boarders, or 
lodgers, for their accommodation, board and 
lodging, and room rent, and such extras as are 
furnished at their request, with the right to the 
possession of such baggage, or other property 
of value, until all such charges are paid (Ibid., 
§2502). 



Lien of board- 
ing and lodg- 
ing-house 
keepers. 



§5. 

Whenever any trunk, carpetbag, valise, box, 
bundle or other baggage, has heretofore come, 
or shall hereafter come into the possession of 
the keeper of any hotel, inn, boarding or lodg- 
ing house, as such, and has remained, or shall 
remain, imclaimed for the period of six months, 
such keeper may proceed to sell the same at 
public auction, and out of the proceeds of such 
sale, may retain the charges for storage, if any, 
and the expense of advertising and sale thereof; 
but no such sale shall be made until the expi- 



Sale of bag- 
g a g e by 
boarding and 
lodging-house 
keepers. 



[415] 



Appendix. 

ration of four weeks from the first publication 
of notice of sucli sale in a newspaper published 
in or nearest the city, town, or place in which 
said hotel, inn, boarding or lodging house is 
situated. Said notice shall be published once 
a week, for four successive weeks, in some news- 
paper, daily or weekly, of general circulation, 
and shall contain a description of each trunk, 
carpetbag,, valise, box, bundle, or other bag- 
gage, as near as may be; the name of the owner, 
if known; the name of said keeper and time and 
place of sale; and the expenses incurred for ad- 
vertising shall be a lien upon such trimk, carpet- 
bag, vahse, box, bundle, or other baggage, in 
a ratable proportion, according to the value of 
such piece of property, or thing, or article sold; 
and in case any balance arising from such sale 
shall not be claimed by the rightful owner within 
one week from the day of said sale, the same 
shall be paid into the treasury of the county in 
which such sale took place; and if the same be 
not claimed by the owner thereof, or his legal 
representatives, within one year thereafter, the 
same shall be paid into the general fimd of said 
county {Ibid., §2503). 



§6. 

Whenever the proprietor or proprietors of any 
hotel or inn shall provide a safe or other secure 
How exempt- place of deposit therein for the safe-keeping of 
b'lit ™™ *' ^"^^ money, jewels, ornaments or other articles 
of value, belonging to any guest or guests of 
such hotel or inn, and shall cause to be posted 
and maintained printed notices thereof in the 
office or pubhc room, and within every guest's 



[416] 



Appendix. 



room of such inn or hotel, the proprietor or pro- 
prietors thereof shall not be Uable to any such 
guest or guests who shall neglect to deliver 
their money, jewels, ornaments, or other articles 
of value to the proprietor or other person in 
charge of such safe or place of deposit for de- 
posit and safe-keeping therein for any loss of 
such money or other articles which may be sus- 
tained by such guest by theft or otherwise {Ibid., 
§2504). 

§7. 

No iimkeeper shall be liable for the loss or 
destruction by fire of the property received by 
him from a guest, stored or being, with the 
knowledge of such, in a barn or other out- 
building, where it shall appear that such loss 
or destruction is the work of an incendiary, and 
occurred without the fault or negUgence of such 
innkeeper or his servants {Ibid., §2508). 

§8. 

All inn or hotel keepers contemplated in this 
act, shall be liable for the loss of, or damage to, 
any baggage or other property of the guests of 
any hotel or inn by fire, in every case where such 
is the result of the negligence of the keeper, or 
his servants {Ibid., § 2509). 

§9 

No hotel or innkeeper shall be hable to any 
guest for the loss of wearing apparel, goods or 
personal effects where it shall appear that such 
loss occurred without the fault or negligence of 
such hotel keeper or his employees {Ibid., 
§2510). 
27 



Limitation of 
innkeeper's 
liability. 



Liable for 
negligence. 



Not liable 
•without neg- 
ligence. 



[417] 



Appendix. 

§10. 

Every hotel or innkeeper in this State shall 
have a lien upon the baggage and other valu- 
Lien of inn- ables and personal property of their guests, 
eeper. brought into such hotel or inn, for the proper 

charges due from such guests to such hotel or 
innkeeper, for board, lodging, and such extras 
as may be furnished to them at their request, 
and such hotel or innkeeper shall be entitled to 
hold and maintain possession of such baggage 
and personal property until such sums so due 
from such guests shall have been fully paid, and 
the right to such possession shall be maintained 
against such guest, his heir, his executors, ad- 
ministrators, creditors or assigns {Ibid., §2511). 

§11. 

Any hotel or innkeeper who shall have a hen 
upon any of the goods, baggage or other chattel 
Enforcement property of his guests may, at the expiration of 
of lien. gj^ months from the date of the departure of 

such guest from such hotel or inn, sell and dis- 
pose of the same at pubUc auction and to the 
highest bidder for cash, or so much thereof as 
may be necessary to pay the smn due such hotel 
or innkeeper, together with the cost of storage, 
advertisement and sale (Ibid., § 2512). 

§12. 

Before proceeding to the sale of the property 
of any guest, as provided in § 2512 of this act. 
Notice of sale, such hotel or innkeeper shall cause a notice of 
such sale, containing a description of the prop- 
erty to be sold, and the time and place where 
•such property will be sold, to be pubUshed once 
[418] 



Appendix. 

each week for two successive weeks in a news- 
paper published in the city or town in which 
such hotel or inn is situated; but if there be 
none, then in some newspaper pubhshed nearest 
such town or city, and in case any balance aris- 
ing from such sale shall not be claimed by the 
rightful owner within thirty days from the day 
of such sale, the same shall be paid into the 
treasury of the county in which such sale took 
place; and if such balance be not claimed by 
the owner thereof, or his legal representatives, 
within one yeair thereafter, the same shall be 
paid into the school fimd of such county {Ibid., 
§ 2513). 



§13. 

Any person who shall put up at any inn or 
hotel, and who shall (except where credit is 
given by express agreement) procure any food, Defrauding 
entertainment, or accommodation without pay- i"*" ^^per, 
ing therefor, and with intent to cheat and de- 
fraud the owner or keeper thereof out of his pay 
for the same, or who, with intent to cheat and 
defraud such owner or keeper out of the pay 
thereof, shall obtain credit at any hotel or inn 
for such food, entertainment, or accommodation 
by means of any false show of baggage or effects 
brought thereto, or shall with such intent re- 
move, or cause to be removed, any baggage or 
effects from any hotel or inn, where there is a 
hen existing thereon for the proper charges due 
from such guest for fare and board furnished 
therein, shall be deemed guilty of a misde- 
meanor, and upon conviction thereof shall be 
punished by imprisonment not exceeding three 

[419] 



Appendix. 

months, or by a fine not exceeding one hundred 
dollars, and costs, or both such fine and im- 
prisoiunent (Ibid., §2514). 



Unlawful to 
compel em- 
ployee to 
board at com- 
pany board- 
ing house. 



§14. 

It shall be unlawful for any person, firm, com- 
pany or corporation now operating, or who shall 
hereafter operate a boarding house in connection 
with their general business, either directly or 
through others, to compel an employee to board 
in such boarding house against his will (Laws 
of 1903, chap. 102, § 1). 



§15. 

Any person, firm, company or corporation 

Penalty. violating any of the provisions of this act, shall 

be deemed guilty of a misdemeanor, and upon 

conviction thereof shall be fined not less than 

one hundred dollars (Ibid., § 2). 



[420] 



Appendix. 



XXV. 



NEBRASKA. 



Compiled Statutes of 1899. 



§1- 

That hereafter every landlord or keeper of a 
public inn or hotel in this State, who shall con- 
stantly have in his inn or hotel an iron safe in 
good order, and suitable for the safe custody 
of money, jewehy, or other valuable articles 
belonging to his guests or customers, shall keep 
posted conspicuously at the ofSce and in other 
pubUc rooms or halls of his inn or hotel, notices 
to his guests or customers, that they must leave 
their money, jewelry, and other valuables with 
the landlord, his agents or clerk, for the safe- 
keeping, that he may make safe deposits of the 
same in the place provided for that purpose 
(Laws of 1905, chap. 81, § 1). 



D e p si t 
valuables. 



of 



§2. 

That such landlord, hotel or innkeeper as 
shall comply with the requirements of the first 
section of this act, shall not be Uable for any Liability, 
money, jewelry or other valuables of gold or 
silver or rare or precious stones that may be 
lost, if the same is not deUvered to said land- 
lord, hotel or innkeeper, his agent or clerk, for 

[421] 



innkeeper. 



Appendix. 

deposit unless such loss shall occur by the hand, 
or through the negUgence of the landlord or by 
a clerk or servant employed by him in such 
hotel or inn: Provided, that nothing herein con- 
tained shall apply to such amount of money and 
valuables as is usual, common and prudent for 
any such guest to retain in his room or about 
his person {Ibid., §2).^ 

§3. 

Any person who shall put up at any hotel or 
inn, restaurant, boarding or lodging house, and 
Defrauding shall procure any food, entertainment or 
accommodation, without paying therefor, ex- 
cept where credit is given by express agreement, 
with intent to cheat or defraud the owner, or 
keeper thereof, out of the pay for the same; or 
who with intent to cheat or defraud such owner, 
or keeper out of the pay therefor, shall obtain 
credit at any hotel, inn, restaurant, boarding 
or lodging house, for such food, entertainment 
or accommodation, by means of any false show 
of baggage or effects brought thereto; or who 
shall with such intent remove, or cause to be 
removed, any baggage or effects from any hotel, 
inn, restaurant, boarding or lodging house, while 
there is a hen existing thereon for the proper 
charges due from him for fare and board fur- 
nished therein, shall be punished by imprison- 
ment not exceeding three months, or by a fine 
not exceeding one hundred dollars {Ibid., §3). 

1 An innkeeper who does not provide a sufficient safe 
continues liable as at common law. Dunbier v. Day, 
12 Neb. 596, 12 N. W. 109, 41 Am. Rep. 772 (1882). 

[422] 



Appbndix. 

§4. 
Whenever any personal property shall be con- 
signed to, or deposited with, any forwarding 
merchant, wharf keeper, warehouse keeper. Description 
tavern keeper, or the keeper of any depot for ** property. 
the reception and storage of trunks, baggage, 
and other personal property, such consignee or 
bailee shall immediately cause to be entered in 
a book to be provided and kept by him for that 
purpose, a description of such property, with 
the date of the reception thereof (Comp. Stat., 
§ 5344). 



§5. 

If such property shall not have been left with 
such consignee or bailee for the purpose of being 
forwarded or otherwise disposed of, according 
to directions received by such consignee or 
bailee, at or before the time of the reception 
thereof, and the name and residence of the 
owner of such property be known or ascer- 
tained, the person having such property in his 
custody shall immediately notify such owner, 
by letter to be directed to him and deposited 
in a post office to be transmitted by mail, of 
the reception of such property {Ibid., § 5345). 



Owner. 



§6. 

In case any such property shall remain un- Unclaimed 
claimed for three months after its reception as Property sale, 
aforesaid, the person having possession thereof 
shall cause a notice to be published once in each 
week for four successive weeks, ia a newspaper 
published in the same county, if there be one, 
and if not, then in some paper published at the 

[423] 



before jus- 
tice 



Appendix. 

seat of government, describing such property, 
and specifying the time when it was received, 
and stating that unless such property shall be 
claimed within three months from the first pub- 
lication of such notice, and the lawful charges 
thereon paid, the same will be sold according 
to the statute in such case made and provided 
{Ibid., §5346). 



§7. 

In case the owner or person entitled to such 
property shall not, within three months after 
Proceedings the pubhcation of such notice, claim such prop- 
erty and pay the lawful charges thereon, includ- 
ing the expenses of such publication, the person 
having possession of the property, his agent, or 
attorney, may make and dehver to any justice 
of the peace, of the same county, an affidavit, 
setting forth a description of the property re- 
maining unclaimed, the time of its reception, 
the pubhcation of the notice, and whether the 
owner of such property is known or unknown 
{Ibid., §5347). 



§8. 

Upon the delivery to him of such affidavit, 
the justice shaU cause such property to be 
Inventory. opened and examined in his presence, and a 
true inventory thereof to be made, and shall 
make and annex to such inventory an order 
under his hand that the property therein de- 
scribed be sold by the sheriff of the county 
where the same shall be, at pubhc auction, upon 
due notice {Ibid., §5348). 
[424] 



Appendix. 



§9. 

It shall be the duty of the sheriff receiving 
such inventory and order, to give ten days' 
notice of the sale by posting up written notices 
thereof in three public places in the county or 
city, and to sell such property at public auction 
for the highest price he can obtain therefor 
{IbU., §5349). 

§10. 

Upon completing the sale, the sheriff making 
the same shall endorse upon the order aforesaid 
a return of his proceedings upon such order, 
and the proceeds of the sale after deducting his 
fees, which shall be the same as upon an exe- 
cution {Ibid., § 5350). 



Notice. 



SherifE's 
turn. 



re- 



§11- 

From the proceeds of such sale the justice 
shall pay the charges and expenses legally in- 
curred in respect to such property, or a ratable 
proportion to each claimant if there be not suf- 
ficient to pay the whole; and such justice shall 
ascertain and determine the amount of such 
charges in a summary manner, and shall be 
entitled to three dollars for each day's services 
rendered by him in such proceeding {Ibid., 
§ 5351). 

§12. 

Such justice shall deliver to the treasurer of 
the county in which the property was sold, the 
affidavit, inventory, and order of sale and re- 
turn hereinbefore mentioned, together with a 
statement of the charges and expenses incurred 



Expenses. 



Avails — dis- 
position. 



[425] 



Appendix. 

in respect to such property as ascertained and 
paid by him, with a statement of his own fees, 
and shall at the same time pay over to such 
treasurer any balance of the proceeds of the 
sale remaining after payment of such charges, 
expenses, and fees {Ihid., § 5352). 



Duties of 
treasurer. 



§13. 

The treasurer shall file in his office, and safely 
keep all the papers so dehvered to him, and 
make a proper entry of the pajonent to him of 
any moneys arising from such sale, in the books 
of his office {Md., § 5353). 



Money paid 
to owner. 



§14. 

If the owner of the property sold, or his legal 
representatives, shall, at any time within five 
years after such moneys shall have been depos- 
ited in the county treasury, furnish satisfactory 
evidence of the ownership of such property, he 
or they shall be entitled to receive from such 
treasurer the amount deposited with him {Ihid., 
§ 5354). 



Money paid to 
school fund. 



§15. 

If the amount so deposited with any county 
treasurer shall not be paid to such owner, or 
his legal representatives, within the said five 
years, such county treasurer shall pay such 
amount into the school fund of the proper 
county, to be appropriated for the support of 
schools {IhU., § 5355). 



[426] 



Appendix. 



XXVI. 
NEVADA. 

General Statutes of 1885. 

§1- 

Whenever any person shall leave a hotel or Proprietor 
lodging house, indebted to the proprietor or ™*y ^^^ ^^- 
proprietors thereof, and shall remain absent for ^*^®" 
the period of six months, it shall be lawful for 
such proprietor or proprietors to sell, or cause 
to be sold, at public auction, any baggage or 
property of such person so indebted, or so much 
thereof as may be necessary to pay such in- 
debtedness, expenses and charges of sale, which 
may have been left at such hotel or lodging 
house by such person (Gen. Stat., § 4960). 

§2. 

All baggage or property, of whatever descrip- 
tion, left ^at a hotel or lodging house for the 
period of twelve months, may be sold at public Proceeds, how 
auction by the proprietor or proprietors thereof, 
and the proceeds arising from such sale, after 
deducting the expenses and charges of sale and 
storage, shall be paid over to the cotmty treas- 
urer of the county in which such baggage or 
property is left, to be held by him for the period 
of six months for the benefit of the owner 

[427] 



disposed of. 



Appendix. 

thereof, at which time, if the same is not paid 
to the owner, or some person legally entitled 
to the same, it shall be transferred to the school 
fund of the county (Ibid., §4961). 



Sale s, how 
made. 



§3. 

All sales made xmder the preceding sections 
of this act shall be made by a Hcensed auction- 
eer, or by some constable of the township in 
which such baggage or property may be left; 
Provided, that no sale shall be vahd unless a 
notice of such sale shall be posted up in three 
public places in such township for the period of 
twenty days immediately preceding the day of 
sale, giving a particular description of the prop- 
erty to be sold, the time and place of such sale, 
the name of the hotel or lodging house at which 
such baggage or property may be left, the names 
of the owner or owners of such baggage or prop- 
erty, when known, and signed by such auc- 
tioneer or constable {Ibid., § 4962). 



Baggage here- 
tofore left 
may be sold. 



§4. 

It shall be lawful for the proprietor or pro- 
prietors of any hotel or lodging house, at which 
any baggage or property may have heretofore 
been left, to cause the same to be sold under 
the provisions of this act; provided, that for 
the purposes of such sale, such baggage or prop- 
erty shall be considered as left at such hotel or 
lodging house at the date of the passage of this 
act (Ibid., §4963). 



[428] 



Appendix. 



XXVII. 



NEW HAMPSHIRE. 



Public Statutes of 1901. 



§1- 

No hotel keeper shall be liable for losses sus- 
tained by his guest, except for wearing apparel, 
articles worn or carried upon the person to a 
reasonable amount, personal baggage, and 
money necessary for travelling expenses and 
personal use, unless upon delivery or offer of 
deUvery by such guest of his money, jewelry, 
or other property to such hotel keeper, his 
agent or servants, for safe custody: Provided, 
that a copy of this chapter is posted in the 
office of the hotel, and in the room of the guest 
(Pub. Stat., chap. 129, § 1). 



Liability of 
hotel keeper, 
how limited. 



§2. 

Any person keeping a boarder, not a mariner 
or seaman, shall have a lien upon the baggage 
and effects of such boarder brought to his 
boarding house until all proper charges for the 
fare and board of such boarder are paid or 
tendered {Ibid., chap. 141, § 1).* 

1 This lien does not cover a charge for keeping a horse. 
Cross V. Wilkins, 43 N. H. 332 (1861). 



Liens of per- 
sons keeping 
boarders. 



[429] 



Appendix. 



Lien holder 
may sell prop- 
erty. 



§3. 

Any person having a lien on personal prop- 
erty, by pledge or otherwise, where no time 
is limited for the payment of the debt or re- 
demption of the property, may sell the same 
or so much thereof as is needful, at auction, 
notice of the sale being given as herein re- 
quired, and from the proceeds he may reim- 
burse himself for his debt and the expenses 
incident to the sale (Ibid., § 3). 



Notice of sale, 
how pub- 
lished. 



§4. 

Notice of such sale shall be given by posting 
notices thereof in two or more public places in 
the town where the property is situate, fourteen 
days at least before the sale, and if the value 
of the property exceeds one hundred dollars, by 
publishing the notice {Ibid., § 5). 



Notice to gen- 
eral owner. 



§5. 

A notice of the sale shall be served upon the 
pledgor or general owner, if resident in the 
county, the same number of days before the 
sale, stating in writing the time and place of 
sale, the property to be sold, and the amount 
of the lien thereon {Ibid., §6). 



Balance to be 
paid. 



[430] 



§6. 

The balance of the proceeds of sale, if any, 
after payment of the amoimt of the lien or 
pledge, and the reasonable expenses incident to 
the sale, shall be paid to the pledgor, general 
owner, or person entitled thereto, on demand 
{Ibid., §7). 



Appendix. 



§7. 

The holder of the hen shall cause a copy of 
such notices and an affidavit of service, with 
an account of the sale and of the fees and 
charges thereon, to be recorded in the books 
of the town where the sale takes place. A 
certified copy of the record may be used in 
evidence {Ibid., §8). 



Notices and 
account of 
sale recorded. 



§8. 

If any person with intent to cheat or de- 
fraud the owner or keeper of a hotel, inn, or 
boarding house, shall procure therein any food, 
entertainment, or accommodation without pay- 
ing for it, or shall obtain credit therefor by a 
false show of baggage or effects brought thereto, 
or shall remove or cause to be removed from 
such hotel, inn, or boarding house any baggage 
or effects while there is a lien upon it for the 
proper charges due from him for fare and 
board furnished to him therein at his request, 
he shall be fined not exceeding twenty dollars, 
or be imprisoned not exceeding three months 
{Ibid., chap. 273, § 7). 



Penalty for 
defrauding 
keepers of 
hotels, inns, 
and boarding 
houses. 



[431] 



Appendix. 



XXVIII. 



NEW JERSEY. 



General Statutes op 1895. 



H o t el, inn 
and boarding- 
house keepers 
to have a lien 
on all baggage 
and property 
of boarders. 



[432] 



All hotel, inn, and boarding-house keepers 
shall have a lien on all baggage and property- 
belonging to boarders and lodgers at said hotel, 
inn, or boarding house, for the amount of their 
bill or bills due to the proprietor thereof for 
the hire of rooms or board in said hotel, inn, or 
boarding house, and shall have the right, with- 
out the process of law, to retain the same untU 
the said amount of indebtedness is discharged, 
and all parties engaging rooms or board in said 
hotel, inn, or boarding house may be summa- 
rarily ejected by the proprietor thereof from said 
premises, upon the aforesaid proprietor giving 
to said parties so indebted a written notice of 
three days of the amount of said indebtedness, 
and their demand for the same, unless said 
parties shall have entered into any agreement 
with said hotel, inn, or boarding-house keepers 
for the mode and manner of payment for 
room or board other than those announced by 
notice in said hotel, inn, or boarding house 
(Gen. Stats., p. 1967, § 48). ^ 

1 A boarding-house keeper has not a lien under this sec- 
tion on the separate property of a married woman board- 



Appendix. 



§2. 

All baggage and property so held by said 
hotel, inn and boarding-house keeper shall, af- 
ter the expiration of six months from the date 
of such detention, be sold at public auction, 
upon a notice published for three days in a 
public newspaper pubUshed in the city or town 
where said hotel, inn, or boarding house shall 
be kept, and the proceeds thereof shall be ap- 
plied to the payment of such lien and the ex- 
penses of such sale, and the balance, if any 
remaining, shall be paid over to the owner of 
such property or his representatives; and if said 
balance is not claimed by such owners within 
thirty days, then the said balance to be paid 
over to the overseer of the poorhouse of said 
city or town for the support of the poor {Ibid., 
§49). 



§8. 



Whenever the proprietor or proprietors of any 
hotel, inn, or boarding house shall provide a 
safe in the office of such hotel, inn, or boarding 
house, or other convenient place, for the safe- 
keeping of any money, jewels, or ornaments 
belonging to the guests or boarders thereof, 
by posting a notice stating the fact that such 
safe is provided, in which such money, jewels, 
or ornaments may be deposited, in the room 
or rooms occupied by such guest or boarder, 
in a conspicuous manner, and if such guest or 
boarder shall neglect to deposit such money, 

ing at the house and living apart from her husband, if the 
husband has engaged, and by express agreement promised 
to pay, her board. Baker v. Stratton, 52 N. J. Law, 277, 
19 AtJ. 661 (1890). 
28 



Baggage and 
property may 
be sold for 
payment of 
bUls. 



Proprietors of 
hotels, etc., 
not responsi- 
ble if money 
and jewels 
not deposited 
in safe. 



[433] 



Appendix. 

jewels, or ornaments in such safe, the proprietor 
or proprietors of such hotel, inn, or boarding 
house shall not be liable for any loss of such 
money, jewels, or ornaments, sustained by such 
guest or boarder, by theft or otherwise (Ibid., 
§50). 



Notice of sale 
may be pub- 
lished in 
newspaper in 
county. 



§4. 

That in cases where no newspapers shall be 
published in any city, town^ or township where 
any hotel, irm, or boarding house shall be kept, 
the sale provided for in the second section of 
the act to which this is a supplement may be 
made upon a notice pubhshed for three days in 
a public newspaper published in the county where 
such hotel, inn, or boarding house shall be kept, 
and circulating in the neighborhood thereof 
(Ibid., §51). 



Defrauding 
landlord a 
misdemeanor. 



§5. 

Any person who obtains any lodging, food, 
or accommodation at any restaurant, inn, hotel, 
boarding house or lodging house without paying 
therefor, with intent to defraud the proprietor 
or the manager thereof, or who obtains credit 
at such restaurant, inn, hotel, boarding house 
or lodging house by the use of any false pre- 
tence, or who, after obtaining credit or accom- 
modations at such restaurant, inn, hotel, board- 
ing or lodging house, absconds or surreptitiously 
removes his or her baggage therefrom without 
first paying for his, her or their food, accommo- 
dations or lodging, is guilty of a misdemeanor 
(Laws of 1905, chap. 127, p. 241). 



[434] 



Appendix. 



XXIX. 

NEW MEXICO. 
Compiled Laws of 1897. 

§1. 

Any person who shall put up at any hotel, Fraud; on 
and who shall procure any food, entertainment innkeepers; 
or accommodation without paying therefor and ^^^ ^' 
with the intent to cheat or defraud the owner 
or keeper thereof out of pay for the same, or 
who with intent to cheat or defraud such owner 
or keeper out of pay therefor, or shall obtain 
credit at any hotel or inn for such food, enter- 
taimnent Or accommodation, by means of any 
false show of baggage or effects brought thereto, 
or who shall with such intent, remove or cause 
to be removed any baggage or effects from any 
hotel, inn, or boarding house, while there is a 
lien existing thereon for the proper charges due 
from him or her for fare and board furnished 
therein, shall be pimished by imprisonment not 
exceeding three months in the county jail, or 
by fine not exceeding one hundred dollars, or 
both at the discretion of the court (Comp. Laws, 
§ 1375). 

§2. 
It shall be the duty of all innholders to post Oopj to be 
up a printed copy of this act in a conspicuous ^"^ * ' 

[435] 



Appendix. 

place in each room of their hotel or inn (Ibid., 
§ 1376). 



Liens; inn- 
keepers and 
livery k e e p- 
ers. 



§3. 

Innkeepers and livery-stable keepers, and 
those who board others for pay, or furnish feed 
or shelter for the property and stock of others, 
shall have a lien on the property and stock of 
such guest or guests, or of those to whom feed 
or shelter has been furnished while the same is 
in their possession, and until the same is paid 
(Ibid., §2239). 



Lien; proce- 
dure to en- 
force. 



§4. 

In order to enforce said lien, those who are 
entitled to the same, as provided by this act, 
may, after the debt for which the lien is claimed 
becomes due and payable, serve the party or 
parties against whom the lien is sought to be 
enforced, with a written notice, setting forth 
the amount of the indebtedness, upon what ac- 
count or cause the same accrued, and that if 
the same is not paid within ten days after the 
service of said notice, the property will be ad- 
vertised and sold to satisfy said indebtedness 
(Ibid., §2240). 



Property; ad- 
vertising and 
sale. 



[436] 



§5. 

If default be made in the payment of the 
debt, after notice, as provided in section two 
thousand two hundred and forty, then it shall 
be lawful for the lien claimant or creditor, as 
herein provided, to advertise and sell such prop- 
erty at public auction to the highest bidder for 
cash after giving twenty days' notice of such 



Appendix. 

sale by at least six handbills posted up in pub- 
lic places in the county in which such sale is 
to be made; such notices of sale shall set forth 
the time and place of sale and a description of 
the property to be sold (Ibid., §2241). 



§6. 

After sale made as provided in section two 
thousand two hundred and forty-one, the pro- 
ceeds of such sale shall be applied to the pay- 
ment of the costs of advertising and making 
the sale and the satisfaction of the demand of 
the lien claimant, and the residue, if any, shall 
be refunded to the lien debtor: Provided, That 
the lien claimant shall not be precluded from 
bidding on or purchasing the property of such 
sale. 



Proceeds, how 
applied; lien 
claimant may 
purchase. 



§7. 

Landlords and common carriers may proceed 
in the enforcement of liens now allowed them 
by law in the manner prescribed in the three 
sections preceding (Ibid., § 2243). 



[437? 



Appendix, 



XXX. 



NEW YORK. 



Birdsbye's Revised Statutes, Codes, and General 
Laws, 1901. 



Liability for 
loss by fire. 



Value of an- 
imal de- 
stroyed. 



[438] 



§1- 

No innkeeper shall be liable for the loss or 
destruction by fire of property received by him 
from a guest, stored or being with the knowl- 
edge of such a guest in a barn or other out- 
building, where it shall appear that such loss or 
destruction was the work of an incendiary and 
occurred without the fault or negligence of such 
innkeeper (Rev. Stat., etc., p. 1744, § 1).* 

§2- 

No animal belonging to a guest and destroyed 
by fire while on the premises of any innkeeper, 
shall be deemed of greater value than three 
hundred dollars, unless an agreement shall be 
proved between such guest and innkeeper that 
a higher estimate shall be made of the same 
{Ibid., §2). 

iThe negligence intended in the words, "without the 
fault or negligence of such innkeeper," is that which pre- 
cedes, induces, or facilitates the fire, and not negligence 
afterwards. Faucett v. Nichols, 4 Thomp. & C. 597 (1874). 

The burden is on the innkeeper to show that the loss 
happened without the fault or negligence of the innkeeper. 
Faucett v. Nichols, 64 N. Y. 377 (1876). 



Appe^tdix. 

§3. 

Whenever the proprietor or manager of any 
hotel, inn or steamboat shall provide a safe in 
the office of such hotel or steamboat, or other Liability for 
convenient place for the safe-keeping of any ^°" "*. ^^^' 
money, jewels or ornaments belonging to the posit; safe. 
guests of or travellers in such hotel, inn or 
steamboat, and shall notify the guests or trav- 
ellers thereof by posting a notice stating the 
fact that such safe is provided, in which such 
money, jewels, or ornaments may be deposited, 
in a pubhc and conspicuous place and manner 
in the office and public rooms, and in the public 
parlors of such hotel or inn, or saloon of such 
steamboat; and if such guest or traveller shall 
neglect to deliver such money, jewels or orna- 
ments, to the person in charge of such office 
for deposit in such safe, the proprietor or man- 
ager of such hotel or steamboat shall not be 
liable for any loss of such money, jewels or or- 
naments, sustained by such guest or traveller 
by theft or otherwise; but no hotel or steam- 
boat proprietor, manager or lessee shall be 
obhged to receive property on deposit for safe- 
keeping exceeding five hundred dollars in value; 
and if such guest or traveller shall deliver such 
money, jewels or ornaments to the person in 
charge of such office, for deposit in such safe, 
said proprietor, manager or lessee shall not be 
liable for any loss thereof, sustained by such 
guest or traveller by theft or otherwise in any 
sum exceeding the sum of two hundred and 
fifty dollars unless by special agreement in writ- 
ing with such proprietor, manager or lessee 
(Ibid., §3).^ 
2 This statute, being in derogation of the common law, 

[439] 



etc. 



Appendix. 

§4. 

No hotel keeper shall be liable to any guest 
Loss of wear- for the loss of wearing apparel, goods or mer- 
ing apparel, chandise for any sum exceeding the sum of five 
himdred dollars, where it shall appear that such 
loss occurred without the fault or negUgence of 

must be strictly construed. Briggs v. Todd, 28 N. Y. 
Misc. 208, 59 N. Y. Supp. 23 (1899). 

The statutory exemption does not begin until a rea- 
sonable time after the guest's arrival. Rosenplaenter 
V. Roessle, 54 N. Y. 262 (1873). And in spite of the 
provisions of the statute the innkeeper remains liable for 
valuables stolen from the trunk of a guest after the guest 
has packed his trunk, locked his room, given notice of 
his departure, and delivered the key of his room to the 
clerk to have his trunk brought down. Bendetson v. 
French, 46 N. Y. 266 (1871). 

Money. — All money comes within the provision of this 
section, even a reasonable amount for travelling expenses; 
and the guest keeps such money in his own possession at 
his own risk. Hyatt v. Taylor, 42 N. Y. 258 (1869), 
overruling Gile v. Libby, 36 Barb. 70 (1861), and Krohn 
v. Sweeney, 2 Daly, 200 (1867). 

Jewels and ornaments. — Silver table forks and a silver 
soup ladle are not jewels and ornaments. Briggs v. Todd, 
28 N. Y. Misc. 208, 59 N. Y. Supp. 23 (1899). 

Watch. — A watch is not a jewel or ornament, and there- 
fore need not be deposited with the innlceeper under this 
section in order to hold the innkeeper responsible for it. 
Ramaley v. Leland, 43 N. Y. 539, 3 Am. Rep. 728 (1871); 
Gile V. Libby, 36 Barb. 70 (1861); Krohn v. Sweeney, 
2 Daly, 200 (1867); Bernstein v. Sweeny, 33 N. Y. Super. 
Ct. 271 (1871); Becker v. Warner, 90 Hun, 187, 35 N. Y. 
Supp. 739 (1895). This is true even though the watch 
is laid itoside the owner's trunk for a short time; it does 
not therefore become a jewel or ornament. Nor does the 
fact that a state coat of arms is engraved on the watch, 
and a picture of the guest's mother is on the inside of the 
case, convert it into a jewel or an ornament. Briggs v. 
Todd, 28 N. Y. Misc. 208, 59 N. Y. Supp. 23 (1899). 

Property not included under the description "money, 

jewels and ornaments," including all that which is useful 

or necessary to the comfort and convenience of the guest, 

that which is usually carried and worn as a part of the 

[440] 



Appendix. 

such hotel keeper; nor shall be be liable in any 
sum for the loss of any article or articles of 
wearing apparel, cane, umbrella, satchel, valise, 
box, bag, bundle or other chattel belonging to 
such guest, and not ^-ithin a room assigned to 
him, unless the same shall be specially intrusted 
to the care and custody of such hotel keeper 
or his servants {Ibid., § 4).^ 

ordinary apparel and outfit, or is ordinarily used and is 
convenient for use by travellers as well in as out of their 
rooms, is left, as before the statute, at the risk of the 
innlceeper. Thus a watch is not included. The words 
of the statute must be taken in their ordinary sense, in 
the absence of any indication that they were used either 
in a technical sense or a sense other than that in which 
they are popularly used. Ramaley v. Leiand, 43 N. Y. 
539, 3 Am. Rep. 728 (1871). 

Posting notice. The notice must be posted as called 
for in the act. If it is not so posted the innkeeper con- 
tinues liable as at common law. Lima v. Dwinelle, 7 
Alb. L. J. 44 (1873). Printing it at the head of each 
page of the register is not enough. Ramaley v. Leiand, 
6 Rob. 358 (1868) ; Kellogg v. Sweeney, 1 Lans. 397 (1869) ; 
Bernstein v. Sweeny, 33 N. Y. Super. Ct. 271 (1871). If, 
however, the guest has actual knowledge of the facts 
contained in the notice, whether by actual information 
from the innkeeper or by a notice not posted as required 
by the act, the innkeeper is exempted from liability. 
Purvis v. Coleman, 21 N. Y. Ill (1860). This actual 
notice must be unmistakably brought home to the guest. 
Kellogg V. Sweeney, 1 Lans. 397 (1869); Van Wyck v. 
Howard, 12 How. Pr. 147 (1856). 

Deposit with the innkeeper. — If the guest fails to make 
the deposit as required by this section the innkeeper is ex- 
empt from liability, even if the guest was not negligent. 
Rosenplaenter v. Roessle, 54N.Y. 262(1873). If, how- 
ever deposit is waived by the innkeeper he continues 
liable. Friedman v. Breslin, 169 N. Y. 574, 61 N. E. 1129, 
affirming S. C, 51 App. Div. 268, 65 N. Y. Supp. 5 (1901.) 

Liability for goods deposited. For goods deposited as 
provided in this section the innkeeper is liable as at com- 
mon law. Wilkins v. Earle, 44 N. Y. 172, 4 Am. Rep. 
655 (1870). 

3 Where an innkeeper provides a row of hooks behind 



[441] 



Appendix. 



Registers to 
be kept by 
certain hotels, 
etc. : inspec- 
tion thereof. 



§5. 

The proprietor or manager of any hotel, tav- 
ern, inn, boarding or lodging house shall keep 
a register which shall show the name, residence, 
date of arrival and departure of their guests, 
providing such proprietor or manager shall be 
under a contract with a corporation, associa- 
tion, partnership or individual by the terms of 
which such corporation, association, partner- 
nership or individual is entitled to receive a 
percentage of the receipts from such business, 
which register shall be subject to the inspection 
of any corporation, association, partnership or 
individual who shall be under a contract with 
such proprietor or manager by the terms of 
which such corporation, association, partnership 
or individual is entitled to receive a percentage 
of the receipts from such business {Ibid., § 5). 



Innkeepers 
refusing to re- 
ceive guest. 



§6. 

A person, who, either on his own account or 
as agent or officer of a corporation, carries on 
business as innkeeper, or as common carrier of 
passengers, and refuses, without just cause or 
excuse, to receive and entertain any guest, or 
to receive and carry any passenger, is guilty 
of a misdemeanor {Ibid., § 6). 

the office desk upon which guests may hang their coats 
without checks being given therefor, he thereby assumes 
a duty to care for the same, and is liable for the loss of 
a coat hung in such place by a guest, in the presence of an 
employee of the hotel, notwithstanding the provisions of 
this section. Bradner v. Mullen, 59 N. Y. Supp. 178, 
27 N. Y. Misc. 479 (1899). 



r442] 



Appendix, 



§7. 

A person who obtains any lodging, food or 
accommodation at an inn, boarding house . or 
lodging house, except an emigrant lodging house, 
without paying therefor, with intent to defraud 
the proprietor or manager thereof, or who ob- 
tains credit at such an inn, boarding house or 
lodging house, by the use of any false pretence, 
or who, after obtaining credit or accommoda- 
tion at such an inn, boarding house or lodging 
house, absconds and surreptitiously removes his 
baggage therefrom without paying for his food, 
accommodation or lodging, is guilty of mis- 
demeanor {Ibid., § 7).* 



Frauds on ho- 
tel keepers. 



§8. 

Every hotel, inn or tavern keeper within this 
State who shall have any unclaimed article, 
goods, or thing in his possession for a period 
of one year, at least, whether a receipt or check 
for the same may, or may not, have been given 
to the person or persons who left the same, may 
proceed to sell the same at public auction and 
out of the proceeds may retain the expenses of 
advertising and sale thereof; but no such sale 
shall be made unless, in case the name and res- 
idence of the owner shall be known or ascer- 
tained, notice of such sale be sent to the owner 
by mail; nor shall any such sale be made imtil 
the expiration of four weeks from the publica- 
tion of a notice of such sale in a newspaper 
published at or nearest the place at which such 

* The crime is not committed unless the fraudulent in- 
tent exists at the time the board is obtained, and it is 
obtained by means of the false pretence. People v. 
Nicholson, 25 N. Y. Misc. 266, 55 N. Y. Supp. 447 (1898). 



Sale of 

claimed 

cles. 



un- 
arti- 



[443] 



Appendix. 

article, goods or thing was left and where such 
sale is to take place; and said notice shall con- 
tain a description of such article, goods or thing 
and the time and place of sale; and the ex- 
penses incurred for advertising shall be a hen 
upon such article, goods or thing in a ratable 
proportion, according to the value of each ar- 
ticle, package or parcel, if more than one (Ibid., 
§8). 

§9- 

Such hotel, inn or tavern keeper shall make 
Disposition an entry of the balance of the proceeds of the 
of proceeds. gale, if any, of each article, goods or thing left 
by the same person, as near as the same can be 
ascertained, and at any time within five years 
thereafter shall refund any surplus so retained 
to the owner of such article, goods or thing, 
his heirs or assigns, on satisfactory proof of 
such ownership {Ibid., §9). 



Unclaime d 
proceeds. 



§10. 

In case such balance shall not be claimed by 
the rightful owner within five years after the 
sale as above specified then it shall be paid to 
the county treasurer for the use of the county 
poor of said county {Ibid., § 10). 



[444] 



§11. 

A keeper of a hotel, apartment hotel,* inn, 
boarding house ® or lodging house, except an 

5 Apartment hotels were not included in the former 
act. Shearman v. Iroquois Hotel & A. Co., 42 N. Y. 
Misc. 217, 85 N. Y. Supp. 365 (1903). 

8 This applies only to houses in which persons are taken 
to board as a regular business, and not to houses where 



Appendix. 

emigrant lodging house, has a lien upon, while Lien, 
in possession, and may detain the baggage and 
other property brought upon their premises by 
a guest, boarder or lodger, for the proper 
charges due from him, on account of his ac- 
commodation, board and lodging, and such 
extras as are furnished at his request. If the 
keeper of such hotel, apartment hotel, inn, 
boarding or lodging house knew that the prop- 
erty brought upon his premises was not, when 
brought, legally in possession of such guest, 
boarder or lodger, or had notice that such 
property was not then the property of such 
guest, boarder or lodger, a hen thereon does 
not exist. An apartment hotel within the 
meaning of this section includes a hotel wherein 
apartments are rented for fixed periods of time, 
either furnished or unfurnished, to the occu- 
pants of which the keeper of such hotel sup- 
plies food, if required. A guest of an apartment 
hotel, within the meaning of this section, in- 
cludes each and every person who is a member 
of the family of the tenant of an apartment 
therein, and for whose support such tenant is 
legally Uable (Laws, 1905, chap. 206).^ 

one or more boarders are kept occasionally only, and on 
special occasions. Cady v. McDowell, 1 Lans. 484 (1869). 

7 See Barnett v. Walker, 39 N. Y. Misc. 323, 79 N. Y. 
Supp. 859 (1902). This lien cannot be extended to any 
charge except for board; for instance, to damages for 
breach of contract to remain as a boarder. Shafer v. 
Guest, 6 Rob. 264, 35 How. Pr. 184 (1868). There is no 
difference in this respect between transient and permanent 
boarders. Stewart v. McCreedy, 24 How. Pr. 62 (1861). 

The hen does not extend to the goods of a third party, 
brought to the house by the boarder. Misch v. O'Hara, 
9 Daly, 361 (1880); Barnett v. Walker, 39 N. Y. Misc. 
323, 79 N. Y. Supp. 859 (1902). See a different inter- 

[445] 



Preservation 
of life at bath- 
ing places. 



[446] 



Appendix. 

§12. 

A lodging house shall be taken to mean and 
include any house or building, or the portion 
thereof, in which persons are harbored, or re- 
ceived or lodged for hire for a single night, or 
less than a week at one time, or any part of 
which is let to any person to sleep in for any 
term less than a week (Rev. Stat., p. 446).* 

§13. 

Every keeper or proprietor of a hotel or 
boarding house, and every other person having 
for use a bathing house upon any beach or 
shore of the ocean, for the accommodation of 
his guests, or of other persons for pay, shall 
provide for the safety of such bathers two hues 
of sound, serviceable and strong manilla or 
hemp rope, not less than one inch in diameter, 
anchored at some point above high water, at 
the same distance apart as the'Une of bathing 
houses, or space fronting on such beach occu- 
pied by him is in width; and from the two 
points at which such life lines are so anchored, 
such line shall be made to extend as far into the 
surf as bathing is ordinarily safe and free from 
danger of drowning to persons not expert in 

pretation given to an earlier statute. Jones v. Morrill, 
52 Barb. 623 (1864). 

So the wife's goods are not held on lien for her own board 
where the husband is the party responsible for it. Birney 
V. Wheaton, 5 How. Pr. N. S. 519 (1885); Mcllvane v. 
Hilton, 7 Hun, 594 (1876). 

8 For special statutes on boarding houses for seamen 
and emigrants, as to printed schedvile of prices, maximum 
of lien, requirement of special license, wearing of badges 
by runners, etc., see Rev. Stat., pp. 1246-1248 (vol. I) 
and pp. 3210, 3211 (vol.11). 



Appendix. 

swimming, and at such points of safety such 
lines shall be anchored and buoyed. From 
the two points of such Unes so extended, an- 
chored and buoyed, a third line shall be ex- 
tended, connecting the two extremities, and 
buoyed at such points as to be principally 
above the surface of the water, thereby enclos- 
ing a space within such lines and the beach 
within which bathing is believed to be safe. 
Every such keeper or proprietor or other such 
person shall cause to be painted and put up 
in some prominent place upon the beach, 
near such bathing houses, the following words: 
"Bathing beyond the Unes dangerous." Such 
lines so placed, anchored and buoyed, and such 
notice so put up, shall continue and be so 
maintained by every such keeper, proprietor 
or other person during the entire season of 
surf bathing. The owner of a bathing house 
shall not be subject to the provisions of this 
section where it is used, occupied or maintained 
by a lessee for hire, but such lessee shall be 
deemed the keeper or proprietor thereof. Every 
person violating any provision of this section 
shall forfeit to the county where the violation 
occurs the sum of twenty-five dollars for every 
such violation, and for each day that any such 
violation is repeated or continued (R. S., 
p. 2865, § 212). 

§14. 

That all persons within the jurisdiction of 
this State shall be entitled to the full and equal Equal accom- 
accommodations, advantages, facilities and priv- modations. 
ileges of inns, restaurants, hotels, eating houses, 
bath houses, barber shops, theatres, music halls, 

[447] 



Penalties. 



Appendix. 

public conveyances on land and water, and all 
other places of public accommodation or amuse- 
ment, subject only to the conditions and lim- 
itations established by law and applicable alike 
to all citizens (R. S., p. 3181, §23). 

§15. 

A person who: 

1. Excludes a citizen of this State, by reason 
of race, color or previous condition of servitude, 
from the equal enjoyment of any accommoda- 
tion, facility or privilege furnished by innkeepers 
or common carriers, or by owners, managers or 
lessees of theatres or other places of amusement, 
or by teachers and officers of the common 
schools and public institutions of learning, or 
by cemetery associations; or 

2. Denies or aids or incites another to deny 
to any other person because of race, creed or 
color, full enjoyment of any of the accommo- 
dations, advantages, facilities and privileges of 
any hotel, inn, tavern, restaurant, public con- 
veyance on land or water, theatre or other 
place of public resort or amusement, is guilty 
of a misdemeanor, punishable by fine of not 
less than fifty dollars or more than five hundred 
dollars (Penal Code, § 383). 



[448] 



Appendix. 



XXXI. 



NORTH CAROLINA. 



§1. 

Every boarding-house keeper who furnishes 
board or bed or room to any person shall have 
the right to retain possession of and a hen upon 
all baggage or other property of such person 
that may have been brought to such boarding 
house until all reasonable charges for such room, 
bed and board are paid (Laws of 1899, chap. 
645, § 1). 

§2. 

That if such charges are not paid within ten 
days after they become due then said boarding- 
house keeper is authorized to sell said baggage 
or other property at the courthouse door, after 
first advertising such sale for ten days at said 
courthouse door, and three (3) other public 
places in the county, and out of the proceeds 
of sale to pay the costs and expenses of sale 
and all costs and charges due for said board, 
bed or room, and the surplus, if any, pay to 
the owner of said baggage or other property 
{Ibid., §2). 

§3. 

That written notice of such sale shaU be 
served on the owner of such baggage or other 
29 



B arding- 
house keepers 
shall have 
lien on bag- 
gage. 



When charges 
not paid prop- 
erty may be 
sold. 



[449] 



Appendix. 



Written no- 
tice of sale 
shall be 
served on 
owner of prop- 
erty. 



property ten days before such sale, if such 
owner be a resident of the State, but if such 
owner be a non-resident of the State, or if his 
residence be unknown, the publication of such 
notice ten days at the courthouse door and 
three (3) other pubhc places in the county 
shall be sufficient service of the same {Ibid., § 3). 



Innkeeper re- 
quired to pro- 
vide suitable 
accommoda- 
tions for 
guests. 



§4. 

Every innkeeper shall at all times provide 
suitable food, rooms, beds and bedding for 
strangers and travellers whom he may accept 
as guests in his inn or hotel (Laws of 1903, 
chap. 563, § 1). 



When inn- 
keeper liable 
for loss. 



Where value 
of property 
over $100. 



[450] 



§5. 

Innkeepers shall not be liable for loss, dam- 
age or destruction of the baggage or property 
of their guests except in case such loss, dam- 
age or destruction results from the failure of 
the innkeeper to exercise ordinary, proper and 
reasonable care in the custody of such baggage 
and property, and in case of such loss, damage 
or destruction resulting from the neghgence and 
want of care of the said innkeeper he shall be 
liable to the owner of the said baggage and 
property to an amount not exceeding one hun- 
dred dollars: Provided, however, any guest may 
at any time before a loss, damage or destruc- 
tion of his property notify the innkeeper in 
writing that his property exceeds in value the 
said sum of one hundred dollars, and shall upon 
demand of the innkeeper furnish him a list or 
schedule of the same, with the value thereof, 
in which case the innkeeper shall be Uable for 



Appendix. 



the loss, damage or destruction of said prop- 
erty because of any negligence on his part for 
the full value of the same: Provided further, 
that proof of the loss of any such baggage, 
except in case of damage or destruction by fire, 
shall be prima facie evidence of the neghgence 
of said hotel or innkeeper {Ibid., §2). 



Proof of loss 
prima facie 
evidence of 
innkeeper's 
negligence in 
case of fire. 



§6. 

It shall be the duty of innkeepers, upon the 
request of any guest, to receive from said guest 
and safely keep money, jewelry and valuables 
to an amount not exceeding five hundred dol- 
lars; and no innkeeper shall be required to re- 
ceive and take care of any money, jewelry or 
other valuables to a greater amount than five 
hundred dollars: Provided, the receipt given 
by said iimkeeper to said guest shall have plainly 
printed upon it this section of this act. No 
innkeeper shall be Hable for the loss, damage 
or destruction of any money or jewels not so 
deposited (Ibid., § 3). 



Safe-keeping 
of money or 
valuables on 
request. 

M a X imum 
amount. 

Form of re- 
ceipt. 



Innkeeper 
not liable for 
loss, etc., 
when not de- 
posited. 



§7. 

No innkeeper shall be liable for loss, damage 
or destruction of any baggage or property 
caused by fire not resulting from the negligence 
of the innkeeper or by any other force over 
which the innkeeper had no control: Provided, 
that nothing herein contained shall enlarge the 
limit of the amount to which the innkeeper 
shall be hable as provided in the preceding 
sections of his act (Ibid., § 4). 



Loss by fire, 
not result of 
negligence, 
innkeeper not 
liable. 

Proviso as to 
amount of lia- 
bility. 



[451] 



Appendix. 



Printed copy 
of act and 
other regfula- 
tions to be 
posted in each 
room. 

Failure, not 
entitled to 
provisions of 
act. 



Not appli- 
cable when 
innkeepe r 
fails to com- 
ply with sec- 
tion 5. 



Right of inn- 
keeper to 
show that 
loss occurred 
from negli- 
gence of 
guest, etc. 



§8. 

Every innkeeper shall keep posted in every 
room of his house occupied by guests, and in 
the office, a printed copy of this act and of all 
regulations relating to the conduct of guests; 
and in case of failure to do so he shall not be 
entitled to take advantage of any of the pro- 
visions of this act {Ibid., § 5). 

§9. 

This act shall not apply to innkeepers or 
their guests when the innkeeper shall not comply 
with the provisions of section five of this act 
{Ibid., § 6). 

§10. 

Any innkeeper against whom claim is made 
for loss sustained by guests may show that such 
loss resulted from the negligence of such guests 
or from his failure to comply with the reasonable 
and proper regulations of the inn {Ibid., § 7). 



[452] 



Appendix. 



XXXII. 



NORTH DAKOTA. 



Revised Codes of 1895. 



§1. 

An innkeeper or keeper of a boarding house 
is liable for all losses or injuries to personal 
property placed by his guests or boarders under 
his care, unless occasioned by an irresistible 
superhuman cause, by a public enemy, by the 
negUgence of the owner or by the act of someone 
whom he brought into the inn or boarding 
house (Rev. Code, § 4029). 



Innkeeper's 
liability. 



§2. 

If an innkeeper or boarding-house keeper 
keeps a fireproof safe and gives notice to a 
guest or boarder, either personally or by put- 
ting up a printed notice in a prominent place 
in the room occupied by the guests or boarders 
that he keeps such a safe and will not be Uable 
for money, jewelry, documents or other arti- 
cles of unusual value and small compass unless 
placed therein, he is not liable, except so far 
as his own acts contribute thereto for any loss 
of or injury to such article, if not deposited 
with him and not required by the guest or 
boarder for present use (Ibid., § 4030). 



How ex- 
empted from 
liability. 



[453] 



Appendix. 

§3. 

Lien of ho- Hotel, inn, boarding house and lodging-house 
tel keepers, keepers shall have a hen upon the baggage and 
other property of their guests, boarders or 
lodgers, brought into such hotel, inn, boarding 
or lodging house by such guests, boarders or 
lodgers for the proper charges due from such 
guests, boarders or lodgers for their accommo- 
dation, board and lodging and room rent and 
such extras as are furnished at their request 
and the right to the possession of such baggage 
or other property until all such charges are 
paid {Ibid., § 4841). 

§4. 

Whenever any trunk, carpetbag, valise, bun- 
dle, package or article of property transported 
When un- or coming into the possession of any railroad, 
c aune prop- ^^ express company or any other common car- 
erty may be . . ^ . i ■ •. i, • 

gold. rier m the course oi nis or its busmess as com- 

mon carrier shall remain unclaimed and the 
legal charges thereon unpaid during the space 
of six months after its arrival at the point to 
which it shall have been directed and the owner 
or person to whom the same is consigned can- 
not be found upon diligent inquiry or, being 
found and notified of the arrival of such article, 
shall refuse or neglect to receive the same and 
pay the legal charges thereon for the space of 
three months, it shall be lawful for such com- 
mon carrier to sell such article at pubHc auction 
after giving the owner or consignee fifteen days' 
notice of the time and place of sale through 
the post office and by advertising in a news- 
paper published in the county where such sale 
[454] 



Appendix. 

is made and out of the proceeds of such sale to 
pay all legal charges on such article and the 
amount over, if any, shall be paid to the owner 
or consignee upon demand {Ibid., § 4195). 



§5. 

Perishable property which has been trans- 
ported to its destination and the owner or con- 
signee notified of its arrival, or being notified, 
refuses or neglects to receive the same and pay 
the legal charges thereon, or if upon diligent 
inquiry the consignee cannot be found, such 
carrier may in the exercise of a reasonable dis- 
cretion sell the same at public or private sale 
without advertising and the proceeds after de- 
ducting the freight and charges and expenses 
of sale shall be paid to the owner or consignee 
upon demand {Ibid., § 4196). 



When perish- 
able property 
may be sold. 



§6. 

The provisions of the last two sections shall Applies to ho- 
apply to hotel keepers and warehousemen {Ibid., ® eepers. 
§ 4197). 



§7. 

A person who obtains any food or accommo- 
dation at any inn, hotel or boarding house with- 
out paying therefor, with intent to defraud the 
proprietor or manager thereof, or who obtains 
credit at any inn, hotel or boarding house by 
use of any false pretence, or who, after ob- 
taining food or accommodations at an inn, ho- 
tel or boarding house, absconds and surrepti- 
tiously removes his baggage therefrom without 
paying for his food and accommodation, is 



Fraudulently 
obtaining 
food or ac- 
commodation 
at inns. 



:455] 



Appendix- 

guilty of a misdemeanor, ana on conviction 
thereof shall be fined not more than one hun- 
dred dollars, nor less than five dollars, or im- 
prisoned in the county jail for not more than 
thirty nor less than ten days, or both such fine 
and imprisonment at the discretion of the 
judge or justice of the peace before whom the 
trial is held {Ibid., § 7674). 



[456] 



Appendix. 



XXXIII. 
OHIO. 

Bates' Annotated Ohio Statutes, 1906. 



That all persons within the jurisdiction of Civil rights, 
said State shall be entitled to the full and equal 
enjoyment of the accommodations, advantages, 
facilities and privileges of inns, restaurants, 
eating houses, barber shops, pubhc conveyances 
on land or water, theatres and all other places 
of pubUc accommodation and amusement, sub- 
ject only to the conditions and limitations es- 
tabUshed by law, and appUcable alike to all 
citizens (Bates' Stat., § 442fr-l). 

§2. 

That any person who shall violate any of the 
provisions of the foregoing section by denjdng 
to any citizen, except for reasons appUcable Penalty, 
alike to aU citizens of every race and color, 
and regardless of color or race, the fuU enjoy- 
ment of any of the acconamodations, advan- 
tages, facilities or privileges in said section 
enumerated, or by aiding or inciting such denial 
shall, for every such offence, forfeit and pay a 
sum not less than fifty ($50) dollars nor more 
than five hundred ($500) dollars to the person 

[457] 



Appendix. 

aggrieved thereby, to be recovered in any court 
of competent jurisdiction in the county where 
said offence was committed; and shall also, for 
every such offence, be deemed guilty of a mis- 
demeanor, and upon conviction thereof shall be 
fined not less than fifty (|50) dollars nor more 
than five hundred (1500) dollars, or shall be 
imprisoned not less than thirty (30) days nor 
more than ninety (90) days, or both; and pro- 
vided further, that a judgment in favor of the 
party aggrieved, or punishment upon an indict- 
ment, shall be a bar to either prosecution re- 
spectively {Ibid., §4426-2). 

§3. 

No innkeeper, whether individual, partner- 
ship or corporation, who constantly has in his 
Liability for inn a metal safe or suitable vault in good order, 
and fit for the custody of money, bank notes, 
jewelry, articles of gold and silver manufacture, 
precious stones, personal ornaments, railroad 
mileage books or tickets, negotiable or valuable 
papers, and bulUon, and who keeps on the doors 
of the sleeping rooms used by his guests suit- 
able locks or bolts, and on the transoms and 
windows of said rooms suitable fastenings, and 
who keeps a copy of this section printed in dis- 
tinct type constantly and conspicuously sus- 
pended in the office and in the ladies' parlor 
or sitting room, barroom, washroom and in five 
other conspicuous places in said inn, or in not less 
than ten conspicuous places in all in said inn, 
shall be liable for the loss or injury suffered by 
any guest, unless such guest has offered to dehver 
the same to such innkeeper for custody, in such 
[458] 



loss of prop' 
erty, 



Appendix. 



metal safe or vault, and such innkeeper has 
omitted or refused to take it and deposit it in 
such safe or vault for custody and to give such 
guest a receipt therefor. Provided, however, 
that the keeper of any inn shall not be obHged 
to receive from any one guest for deposit in 
such safe or vault any property hereinbefore 
described exceeding a total value of five him- 
dred dollars, and shall not be hable for any 
excess of such property whether received or 
not; but such innkeeper may by special ar- 
rangement with a guest receive for deposit in 
such safe or vault any property upon such 
terms as they may agree to in writing, but 
every innkeeper shall be liable for any loss of 
the above-enumerated articles of a guest in his 
inn, caused by the theft or negligence of the 
innkeeper, or any of his servants {Ibid., § 4427).* 



Special ar- 
Tangements. 



§4. 

The UabiUty of the keeper of any inn whether 
individual, partnership, or corporation, for loss 
of or injury to personal property placed by his 
guests under his care, other than that described 
in the preceding section, shall be that of a de- 
positary for hire; provided, however, that in 
no case, shall such Uability exceed the sum of 
one hundred and fifty dollars for each trunk 
and its contents, fifty dollars for each valise 

1 Under this section an innkeeper who has complied 
with the provisions of the statute is not liable to a guest 
for the loss by theft of jewelry and money which the guest 
retained in his possession, in the absence of any proof of 
negligence on the part of the innkeeper or his servants. 
A watch and money for travelling expenses come within 
the provisions of the statute. Lang v. Arcade Hotel Co., 
9 Ohio Dec. 372, 12 WMy. Law Bull. 250 (1883). 



Iiimitation 
liability. 



of 



[459] 



Appendix. 

and its contents, and ten dollars for each box, 
bundle or package, and contents, so placed un- 
der his care, unless he shaU have consented in 
writing with such guest to assume a greater 
liabihty (Ibid., § 4427a). 

§6. 

The keeper of any inn, whether individual, 
Lien. partnership or corporation, shall have a lien on 

the baggage and other property in and about 
such inn belonging to or under the control of 
his guests or boarders for the proper charges 
due him from such guests or boarders for the 
accommodation, board and lodging, and for aU 
money paid for or advanced to them, and for 
such other extras as are furnished at their re- 
quest, and said innkeeper shall have the right 
to detain such baggage and other property un- 
til the amount of such charges is paid, and such 
baggage and other property shall not be exempt 
from attachment or execution until such inn- 
keeper's lien and the cost of satisfying it are 
Sale of prop- satisfied. The innkeeper shall retain such bag- 
gage and other property upon which he has a 
hen for a period of sixty days, at the expiration 
of which time, if such lien is not satisfied, he 
may sell such baggage and other property at 
public auction, after giving ten days' notice of 
the time and place of sale in a newspaper of 
general circulation in the county where the inn 
is situated, and also by mailing a copy of such 
notice addressed to said guest or boarder at 
the place of residence registered by him in the 
register of such inn; and after satisfying the 
lien and any costs that may accrue, any residue 
[460] 



erty. 



Appendix. 



remaining shall, on demand within six months, 
be paid to such guest or boarder, and if not 
so demanded within six months from date of 
such sale, said residue shall be deposited by 
such innkeeper with the treasurer of the county 
in which the inn is situated, together with a 
statement of the innkeeper's claim, the cost of 
enforcing same, a copy of the pubhshed notice, 
and of the amounts received for the goods sold 
at said sale; said residue shall by said county 
treasurer be credited to the general revenue 
fund of said county, subject to a right of said 
guest or boarder, or his representatives, to re- 
claim the same at any time within three years 
of the date of deposit with said treasurer {Ibid., 
§ 4427b). 



Disposal of 
proceeds. 



§6. 

Any person who shall obtain food, lodging or 
other accommodation at any hotel, inn, board- 
ing or eating house with intent to defraud the 
owner or keeper thereof, shall be fined not ex- 
ceeding two hundred dollars, or imprisoned in 
the county jail or city workhouse not exceeding 
three months, or both (Ibid., § 7076a). 



Defrauding: 
innkeepers. 



§7. 

Proof that lodging, food or other accommo- 
dation was obtained by false pretence, or by 
false or fictitious show or pretence of any bag- 
gage or other property, or that the person re- 
fused or neglected to pay for such food, lodging 
or other accommodation on demand, or that he 
gave in payment for such food, lodging or other 
accommodation, negotiable paper on which pay- 



Proof of 
fraudulent in- 
tent; agree- 
ment for de- 
lay. 



[4611 



Appendix. 

ment was refused, or that he absconded without 
paying or offering to pay for such food, lodging 
or other accommodation, or that he surrepti- 
tiously removed or attempted to remove his 
baggage, shall be prima facie proof of the fraud- 
ulent intent mentioned in section seven thousand 
and seventy-six (a) ; but this act shall not apply 
where there has been an agreement for delay 
in pajnnent for a period to exceed ten days 
{Ibid., § 7076b). 



Notice of pro- 
visions of this 
act. 



§8. 

It shall be the duty of every hotel, inn, or 
boarding-house keeper within this State to keep 
a copy of section seven himdred (thousand) 
and seventy-six (b) printed in distinct type 
posted conspicuously in the office, the ladies' 
parlor or sitting room, barroom, washroom and 
in five other conspicuous places in said inn, or 
in not less than ten conspicuous places in aU 
in said inn {Ibid., § 7076c). 



Theatrical ex- 
hibitions and 
tickets. 



[462; 



§9. 

All municipal corporations shall have the 
following general powers and council may pro- 
vide by ordinance or resolution for the exercise 
and enforcement of the same : 

7. To regulate, by license or otherwise, re- 
strain or prohibit theatrical exhibitions and 
public shows of whatever name or nature, for 
which money or other reward is demanded or 
received; to regulate, by license or otherwise, 
the business of trafficking in theatrical tickets 
or other tickets of licensed amusements, by 
parties not acting as agents of those issuing 



Appendix. 

the same, but public school entertainments, 
lecture courses and lectures on historic, Uterary 
or scientific subjects shall not come within the 
provisions of this section {Ibid., § 1536-100). 



[463] 



Appendix. 



XXXIV. 



OKLAHOMA. 



Statutes of 1893. 



Liability of 
keeper of an 
inn or board- 
ing house. 



§1. 

An innkeeper or keeper of a boarding house 
is liable for all losses of, or injuries to, personal 
property placed by his guests or boarders un- 
der his care, unless occasioned by an irresist- 
ible superhuman cause, by a public enemy, by 
the negligence of the owner, or by the act of 
someone whom he brought into the inn or board- 
ing house, and upon such property the innkeeper 
or keeper of a boarding house has a lien and a 
right of detention for the payment of such 
amount as may be due him for lodging, fare, 
boarding, or other necessaries by such guest or 
boarder; and the said lien may be enforced by 
a sale of the property in the manner prescribed 
for the sale of pledged property (Stat., § 2735). 



How ex- 
empted from 
liability. 



[464] 



§2. 

If any innkeeper or boarding-house keeper 
keeps a fireproof safe, and gives notice to a 
guest or boarder either personally or by put- 
ting up a printed notice in a prominent place 
in the room occupied by the guest or boarder, 
that he keeps such a safe, and will not be liable 



Appendix. 

for money, jewelry, documents or other articles 
of vmusual value and small compass, unless 
placed therein, he is not hable except so far 
as his own acts contribute thereto, for any loss 
of, or injury to, such article, if not deposited 
with him, and not required by the guest or 
boarder for present use {Ibid., § 2736). 



§3. 

Every person who, while lawfully in posses- 
sion of an article of personal property, renders 
any service to the owner thereof by labor or 
skill employed for the protection, safe-keeping 
or carriage thereof, has a special lien thereon, 
dependent on possession, for the compensation, 
if any, which is due to him from the owner 
for such service {Ibid., § 3210) . 



Lien for serv- 
ices rendered. 



§4. 

Whenever any trunk, carpetbag, valise, bun- 
dle, package or article of property transported 
or coming into the possession of any railroad, 
or express company, or any other common car- 
rier in the course of his or its business as com- 
mon carrier, shall remain unclaimed and the 
legal charges thereon unpaid during the space 
of six months after its arrival at the point to 
which it shall have been directed, and the 
owner or person to whom the same is consigned 
cannot be found upon diligent inquiry, or being 
found and notified of the arrival of such article, 
shall refuse or neglect to receive the same and 
pay the legal charges thereon for the space of 
three months, it shall be lawful for such com- 
mon carrier to sell such article at public auction, 
30 



Sale of un- 
claimed prop- 
erty may be 
made, when. 



[465] 



Appendix. 

after giving the owner or consignee fifteen days' 
notice of time and place of sale, through the 
post office and by advertising in a newspaper 
published in the county where such sale is made, 
and out of the proceeds of such sale to pay all 
legal charges on such articles, and the amount 
over, if any, shall be paid to the owner or con- 
signee upon demand {Ibid., § 458). 

§5. 

Act applies to The provisions of this act shall apply to ho- 
hotel keepers, tel keepers and warehousemen {Ibid., § 460). 



[466] 



Appendix, 



XXXV. 

OREGON. 
Hill's Annotated Laws, 1892. 

§1. 

Hotel keepers, innkeepers, lodging-house keep- Lien on bag- 
ers-, and boarding-house keepers shall have a lien &*se. 
upon the baggage, clothing, jewelry, and other 
valuables of their guests, lodgers, or boarders 
brought into such hotel, inn, lodging house, or 
boarding house by such guest, lodger, or boarder 
for the reasonable charges due from such guests, 
lodgers, or boarders for their accommodation, 
board, or lodging, and such extras as are fur- 
nished at the request of such guest, lodger, or 
boarder; and such hotel keeper, innkeeper, lodg- 
ing-house keeper, or boarding-house keeper may 
retain and hold possession of such baggage, 
clothing, jewelry, and other valuables until such 
charges be paid (Hill's Annot. Laws, p. 1908, 
§ 1, revised by Laws of 1903). 

§2. 

If such reasonable charges be not paid within 
sixty days from the time of furnishing such 
accommodations, board, lodgings, or extras, the Sale. 
person having such lien may proceed to sell 
such baggage or other valuables at public auc- 

[467] 



Appendix. 



Notice. 



Costa. 



tion, or a part thereof sufficient to pay such 
proper charges. Before seUing he shall give 
notice of such sale by advertisement for three 
weeks in a newspaper pubhshed in the county, 
or by posting up notice of such sale in three of 
the most public places in the city or precinct 
for three weeks before the time of such sale, and 
the proceeds of such sale shall be applied, first, 
to the discharge of such hen and the cost of 
selling such property, and the remainder, if 
any, shall be paid over to the owner thereof on 
demand {Ibid., §2). 



ment. 



§3. 

The provisions of the preceding (preceding) 
Special agree- sections shall not interfere with any special 
agreement of the parties {Ibid., § 3) . 

§4. 

Whenever any personal property shall be 
consigned to or deposited with any forwarding 
merchant, wharf, warehouse, or tavern keeper, 
or the keeper of any depot for the reception 
and storage of trunks, baggage, merchandise, 
or other personal property, such consignee or 
bailee shall immediately cause to be entered in 
a book kept by him a description of such prop- 
erty, with the date of reception thereof {Ibid., 
§3712). 



Consignee or 
depositary to 
enter receipt 
of property in 
book. 



[468] 



§5. 

If such property shall not have been left with 
such consignee or bailee for the purpose of 
being forwarded or disposed of- according to 
directions received by such consignee or bailee 



Appendix. 

at or before the time of the reception thereof, When bailee 
and if the name and residence of the owner **> notify 
of such property be known to the person having °'T°®' ** '*' 
such property in his possession, he shall imme- erty. 
diately notify the owner, by letter directed to 
him and deposited in the post office, of the 
reception of such property (Ibid., § 3713). 



§6. 

If any such property shall not be claimed 
and taken away within one year after the time 
it shall have been so received, the person hav- 
ing possession thereof may at any time there- 
after proceed to sell the same in the manner 
provided in this title {Ibid., § 3714). 



When bailee 
may sell prop- 
erty. 



§7. 

Before any such property shall be sold, if 
the name and residence of the owner thereof 
be known, at least sixty days' notice of such 
sale shall be given him, either personally or by 
mail, or by leaving a notice at his residence 
or place of doing business; but if the name and 
residence of the owner be not known, the per- 
son having the possession of such property 
shall cause a notice to be published containing 
a description of the property for the space of 
six weeks successively in a newspaper if there 
be one published in the same county; if there 
be no newspaper pubHshed in the same county, 
then said notice shall be pubHshed in a news- 
paper nearest thereto in the State; the last 
publication of such notice shall be at least 
eighteen days previous to the time of sale 
(Ibid., §3715). 



Notice of sale, 
when to be 
given person- 
ally to owner. 



Notice, when 
given by pub- 
lication. 



[469] 



Appendix. 



Proceeding 
when prop- 
erty not 
claimed. 



AfSdavit by 
bailee. 



§8. 

If the owner or person entitled to such prop- 
erty shall not take the same away and pay the 
charges thereon after sixty days' notice shall 
have been given, it shall be the duty of the 
person having possession thereof, his agent or 
attorney, to make knd deliver to a justice of 
the peace of the same county an affidavit set- 
ting forth a description of the property remain- 
ing unclaimed, the time of its reception, the 
publication of the notice, and whether the 
owner of such property be known or unknown 
{Ibid., §3716). 



Inventory 
and order of 
sale. 



§9. 

Upon the delivery to him of such affidavit, 
the justice shall cause such property to be 
opened and examined in his presence, and a 
true inventory thereof to be made, and shall 
annex to such inventory an order under his 
hand that the property therein described be 
sold by any constable of the precinct where the 
same shall be at public auction (Ibid., § 3717). 



Sale by con- 
stable, notice 
of. 



§10. 

It shall be the duty of such constable receiv- 
ing such inventory and order to give ten days' 
notice of the sale, by posting up written notices 
thereof in three or more places in such pre- 
cinct, and to sell such property at public auction 
to the highest bidder, in the same manner as 
provided by law for sales under execution from 
justices' courts {Ibid., § 3718). 



[470] 



Appendix. 



§11. 

Upon completing the sale, the constable mak- 
ing the same shall indorse upon the order afore- 
said a return of his proceedings thereon, and 
return the same to the justice, together with 
the inventory and the proceeds of sale, after 
deducting his fees (Ibid., § 3719). 



Return of con- 
stable and 
fees. 



§12. 

From the proceeds of such sale, the justice 
shall pay all legal charges that have been in- 
curred in relation to such property, or a ratable 
proportion of each charge if the proceeds of 
said sale shall not be sufficient to pay aU the 
charges; and the balance, if any there be, he 
shall immediately pay over to the treasurer of 
the county in which the same shall be sold, 
and deliver a statement therewith, containing 
a description of the property sold, the gross 
amoimt of such sale, and the amount of costs, 
charges, and expenses paid to each person 
{Ibid., §3720). 



Justice to pay 
charges, etc. 



§13. 

The county treasurer shall make an entry of 
the amount received by him, and the time when 
received, and shall file in his office such state- 
ment so delivered to him by the justice {Ibid., 
§3721). 

§14. 

If the owner of the property sold, or his legal 
representatives, shall, at any time within five 
years after such money shall have been depos- 
ited in the county treasury, furnish satisfactory 



Treasurer to 
make entry. 



When owner 
may claim 
deposit. 



[471] 



Appendix. 

evidence to the treasurer of the ownership of 
such property, he or they shall be entitled to 
receive from such treasurer the amount so de- 
posited with him {Ibid., § 3722). 

§15. 

If proceeds K the amount so deposited with any county 
not claimed. treasurer shall not be claimed by the owner 
thereof or his legal representatives within the 
said five years, the same shall belong to the 
county, and may be disposed of as the county 
court may direct (Ibid., § 3723). 



Pees of jus- 
tice and con- 
stable. 



§16. 

The fees allowed to any justice of the peace 
under the provisions of this title shall be three 
dollars for each day's service; and to any con- 
stable, the same fees as are allowed by law for 
sales upon an execution, and ten cents a folio 
for making an inventory of property (Ibid., 
§ 3724). 



§17. 

That any person who shall, with intent to 

defraud, obtain food, lodging or other accom- 

Defrauding modations at any hotel, inn, or boarding house, 

K->„,.ij^„ or who, after having obtained such food, lodg- 
Doaraing-_ ' ° )& 

house keep- ing, or other acconmiodations at any such ho- 
ers. tel, inn, or boarding house, shall surreptitiously 

remove his baggage from such hotel, inn, or 
boarding house, without first paying or tender- 
ing payment for such food, lodging, or other 
accommodations, shall be guilty of a misde- 
Penalty. meaner and upon conviction thereof shall be 

fined not less than twenty ($20) dollars, and 
[472] 



Appendix. 

not more than one hundred ($100) dollars, or 
imprisoned not less than ten days nor more 
than fifty days, or both (Laws of 1905, chap. 84, 
§1). 

§18. 

That it shall be presumptive evidence of such Presumptive 
intent to defraud if the person so obtaining evidence, 
such food, lodging, or other accommodations 
at such hotel, inn, or boarding house shall fail 
or refuse, on demand by the proprietor or man- 
ager of such hotel, inn, or boarding house, to 
pay and satisfy tfie reasonable charges for the 
same, unless such person shall, before obtaining 
such food, lodging, or other accommodations, 
have disclosed to such proprietor or manager 
his inability to pay and satisfy the same on 
demand (Ibid., § 2). 

§19. 

That the justice of the peace in each coimty 
shall have jurisdiction to enforce the provisions 
of this act {Ibid., § 3). 



[473] 



Appendix. 



Refusal to ac- 
commodate, 
on account of 
race or color. 



XXXVI. 

PENNSYLVANIA. 

Beightly's Purdon's Digest of the Statute Laws, 
1894, WITH Supplement, 1895. 

§1. 

Any person, company, corporation, being 
owner, lessee or manager of any restaurant, 
hotel, railroad, street railway, omnibus line, 
theatre, concert hall, or place of entertainment 
or amusement, who shall refuse to accommodate, 
convey or admit any person or persons on ac- 
count of race or color over their hnes, or into 
their hotel, or restaurant, theatre, concert hall, 
or place of amusement, shall, upon conviction 
thereof, be guilty of a, misdemeanor, and be 
punished by fine not less than fifty dollars nor 
more than one hundred dollars (Bright. Purd. 
Dig., p. 533, § 355). 

§2. 

Every innkeeper shall keep good entertain- 
ment for man and horse, under penalty of five 
dollars for every case of neglect {Ibid., p. 1021, 
§1). 

§3. 

All livery-stable keepers and innkeepers 
within this commonwealth shall have a lien 
[474] 



Penalty. 



Appendix. 

upon any and every horse delivered to them Lien of inn- 
to be kept in their stables, for the expense of ^teepers, etc., 
the keeping; and in case the owner of the said *°' liorsekeep. 
horse or horses, or the person who delivered 
them for keeping to the keeper of the livery 
stable, or innkeeper, shall not pay and dis- 
charge the said expense, provided it amount 
to thirty dollars, within fifteen days after de- 
mand made of him personally, or in case of 
his removal from the place where such livery 
stable or inn is kept, within ten days after 
notice of the amount due, and demand of pay- 
ment in writing left at his last place of abode, 
the livery-stable keeper, or innkeeper, may 
cause the horse or horses aforesaid to be sold 
at public sale, according to law: and after de- 
ducting from the amount of sales, the costs of 
sale and the expense of keeping, shall deUver 
the residue, upon demand, to the person or the 
agent of the person who delivered the horse or 
horses to him for keeping: Provided always, 
That nothing in this act contained shall be con- 
strued to impair any right of action, which the 
said Uvery-stable keepers or innkeepers may 
have against any person or persons, for the 
keeping his or their horse or horses {Ibid., 
p. 1023, § 16) .1 

§4. 

AH proprietor or proprietors of hotels, inns 
and boarding houses within this commonwealth, Lien on bag- 
shall have a lien upon the goods and baggage ^*^®' 

1 See Singer Mfg. Co. y. Flannigan, 7 Pa. Co. Ct. 45 
(1888); Gump v. Showalter, 43 Pa. 507 (1862). A Uvery- 
stable keeper's lien can be exercised against a horse only 
for the expense of keeping that particular horse. Mc- 
Manigle v. Crouse, 1 Walker (Pa.), 43 (1887). 

[475] 



Appendix. 

belonging to any sojourner, boarder or boarders, 
for any amount of indebtedness contracted for 
boarding and lodging, for any period of time 
not exceeding two weeks,^ and shall have the 
right to detain said goods and baggage until 
the amount of said indebtedness is paid; and 
at the expiration of three nionths, the said 
proprietor or proprietors may make application 
to any alderman or justice of the peace of the 
proper city, borough or county, who is hereby 
authorized to issue his warrant to any constable 
within said city, borough or county, and cause 
him to expose the said goods and baggage to 
public sale, after giving at least ten days' no- 
tice, by public written or printed notices, put 
up in three or more pubUc places in the ward 
of said city or borough, or in the township, 
where said inn, hotel or boarding house is lo- 
cated; and after he shall have sold the same, 
he shall make return thereof to the said jus- 
tice or alderman, who shall, after payment of 
all costs and the said amount of indebtedness, 
pay over the balance, if any there be, to the 
owner or owners of said goods or baggage: 
Right to re- Provided, That the owner or owners of said 
goods and baggage shall have the right to re- 
deem said goods and baggage, at any time 
within the said three months, upon paying the 
amount of said indebtedness, and at any time 
previous to the sale as aforesaid, upon paying 
also the additional cost established by law for 
like services {Ibid., § 17). 

2 The words "not exceeding two weeks" are repealed 
as to Erie County. P. L. 1869, p. 971. 



[476] 



deem. 



Appendix. 



§5. 

Whenever the proprietor or proprietors of 
any hotel, inn or boarding house, shall provide 
a good, sufficient and secure safe in the office 
of such hotel or other convenient place, for the 
safe-keeping of any money, goods, jewelry and 
valuables belonging to the guests and boarders 
of such hotel, inn or boarding house, and shall 
notify the guests and boarders thereof, by plac- 
ing in every lodging room, parlor and public 
hall, and other conspicuous places, printed cards 
or notices, stating the fact that such safe is 
provided, in which such goods, jewehy and 
valuables may be deposited, and that the pro- 
prietor or proprietors thereof will not be re- 
sponsible for said money, goods, jewelry and 
valuables, unless deposited in said safe; and if 
any such guest or boarder shall neglect to de- 
posit such money, goods, jewelry or valuables 
in such safe, the proprietor or proprietors afore- 
said shall not be liable for any loss of such 
money, goods, jewelry or valuables, sustained 
by such guest, by theft or otherwise : Provided, 
That nothing herein contained shall apply to 
such an amoimt of money, and such articles of 
goods, jewelry and valuables, as is usual, com- 
mon and prudent for such guest or boarder to 
retain in his room, or about his person. {Ibid., 
§ 18)." 

3 Though notice of the requirement of deposit with the 
innkeeper was not posted on the doors as required by 
the statute, it might nevertheless be negligence, if the 
guest had actual notice of the regulation, to cany a large 
sum of money into his room. Shultz v. Wall, 134 Pa. 
262, 19 Atl. 742, 26 Wkly. Notes Cas. 57, 19 Am. St. 
Rep. 686, 8 L. R. A. 97 (1890). 

The proviso as to money, etc., such as it is "usual, 



Innkeepers, 
etc., may pro- 
vide place of 
safe keeping 
for valuable 
property. 



How notice 
thereof to be 
given. 



Not to be lia- 
ble therefor, 
unless depos- 
ited therein. 



Exceptions. 



[477] 



Appendix. 



May give cer- 
tain notices, 
and if not 
complied 
with, not to 
be account- 
able for goods 
stolen from 
rooms. 



Proofs. 



§6. 

Whenever the proprietor or proprietors of 
any hotel, inn or boarding house, shall post in 
a conspicuous manner as aforesaid, notices re- 
quiring said guest or boarder to bolt the door 
of the room or rooms occupied by said guest 
or boarder, or in leaving the said room or 
rooms to lock the door and to deposit the keys 
with the proprietor or the clerk at the ofRce; 
and if such guest or boaider shall neglect so 
to do, the proprietor or proprietors as afore- 
said shall not be liable for any baggage of such 
guest or boarder, which may be stolen from 
said room or rooms: Provided, That said pro- 
prietor or proprietors shall clearly establish the 
fact of said room or rooms having been left 
unbolted or unlocked by said guest or boarder, 
at the time of the loss of said baggage as afore- 
said (Ibid., § 19). 



Penalty for 
fraudulently 
obtaining 
board, etc. 



[478] 



§7. 

Every person who shall, at any hotel or inn, 
or boarding house, receive or cause to be fur- 
nished any food or accommodations, with in- 
tent to defraud the owner or proprietor of such 
hotel, inn or boarding house out of the value 
or price of such food or accommodation, and 
every person who shall obtain credit at any 
hotel, inn or boarding house, by the use of any 
false pretences or device, or by depositing at 
such hotel, inn or boarding house any baggage 

common and prudent for the guest and boarder to retain 
in his room or about his person," retains the innlceeper's 
common-law liability as to such articles. Turner v. 
Whitaker, 9 Pa. Super. Ct. 83, 43 W. N. C. 375 (1898). 



Appendix. 



or property of value less than the amount of 
such credit, or of the bill by such person in- 
curred, with such fraudulent intent, and any 
person who, after obtaining credit or accommo- 
dation at any hotel, inn or boarding house, 
shall abscond from such hotel, inn or boarding 
house, and shall surreptitiously remove his bag- 
gage or property therefrom, shall (upon con- 
viction) be adjudged guilty of a misdemeanor, 
and upon conviction, shall be punished by im- 
prisonment in the county jail for a term of not 
more than six months {Ibid., § 20).* 

* The statute makes no distinction between a guest and a 
permanent boarder, and includes every person who, with 
intent to defraud, obtains food or accommodations. 
Commonwealth v. Gough, 3 Kulp, 148 (1884). 

A defendant may be convicted by establishing beyond 
■ a reasonable doubt any one of the following five therein 
enumerated particulars: (1) Where the defendant re- 
ceives or causes to be furnished any food or accommoda- 
tions with intent to defraud the proprietor of any hotel, 
inn, or boarding house out of the price of such food or 
accommodations; (2) where such defendant obtains credit 
by the use of false pretence or device; (3) where such 
defendant deposits any baggage or property .of value, less 
than the amount of such credit, with such fraudulent in- 
tent; (4) where such defendant refuses to pay any bill 
incurred with such fraudulent intent (this includes all bills 
for acconmiodation at such hotel, other than food); and 
(5) where any person, after obtaining such credit or ac- 
commodation, shall abscond and surreptitiously remove 
his baggage or property. Commonwealth v. Morton, 9 
Lane. Bar, 79, 6 Luz. Leg. Reg. 207 (1877). The statute 
punishing surreptitious removal applies to the removal 
of baggage or of any other property, as in this case a gun; 
and it applies to such goods obtained by fraud after the 
act went into effect, though the charges on which they 
are held were incurred before the passage of the act. 
Where the guest obtained the property from the inn- 
keeper by false pretences, it was held to constitute a sur- 
reptitious removal. Ibid. 

The very language of the act used in an indictment for 



For abscond- 
ing with bag- 
gage. 



1 479 J 



Appendix. 



Copy 


of 


the 


act 


to 


be 


post 


ed 


in 


rooms 


, 





Penalty for 
overcharges. 



§8. 

Every keeper of a hotel, restaurant, inn or 
boarding house shall post in a public and con- 
spicuous place in the office or pubUc room, 
and in every bedroom occupied by guests in 
said house, a printed copy of this act, and a 
statement of the charges or rates of charges by 
the day, and for meals and items furnished, 
and for lodging. No charge or sum shall be 
collected or received by any such person for 
any services not actually rendered, or for any 
items not actually delivered, or for a longer 
term than the person so charged actually re- 
mained at such place. For any violation of 
this section, or any provisions in this section, 
the offender shall forfeit his bill so charged, 
and upon conviction thereof, be adjudged guilty 
of a misdemeanor, and shall be punished by 
imprisonment in the county jail for a term of 
not more than six months {Ibid., §21).^ 



Sale of for- 
feited bag- 
gage. 



[480] 



§9. 

In case of default on the part of the guests 
in any hotel, inn or boarding house, to redeem, 
within sixty days, all baggage, et cetera, depos- 
ited as security for charges incurred, said bag- 
gage, et cetera, shall be sold at public auction, 

obtaining credit at a hotel by false pretences, is not a 
sufficient charge of the offence, but the nature and char- 
acter of the pretences must be alleged, that defendant may 
know the specific nature of the charge he is compelled 
to meet. Commonwealth v. Dennis, 1 Pa. Co. Ct. 278 
(1884). 

6 The posting of the notice required by this section is 
not necessary for conviction under the preceding section. 
Commonwealth v. Morton, 6 Luz. Leg. Reg. 207, 9 Lane. 
Bar, 79 (1877). 



Appendix. 

after due notice by publication for five days 
previous to sale; all excess of proceeds exceed- 
ing charges shall be held for the owner {Ibid., 
§22). 



Attachment 
of wages. 



§10. 

All keepers of hotels, inns, boarding houses 
and lodging houses, in this commonwealth, 
in addition to the remedies now provided 
by law, shall have the right, in suits and 
actions brought before justices of the peace to 
recover pay for boarding or lodging, or board- 
ing and lodging, furnished, to commence such 
suits and actions by attachment, and thereon 
to attach only wages due or owing to such 
persons as may be indebted to them, or any of 
them, for boarding or lodging, or boarding and 
lodging, not exceeding in amount the simi due 
for four weeks; and any sum so due and so 
attached shall not be paid to the defendant 
until the judgment, which may be rendered Judgment. 
against the defendant in pursuance of a sum- 
mons to him or her directed, which shall issue 
with such attachment for such amount as may 
be so legally attached, shall be satisfied; and 
justices of the peace shall have jurisdiction of 
attachment proceedings in such case (Ibid., § 23, 
as amended, P. L. 1905, Act 99, p. 134) .« 

8 Under an act of 1876 wages were allowed to be at- 
tached for board without giving the debtor the benefit 
of the ordinary $300 exemption. Hughes v. Jones, 8 
Kulp, 242 (1896); Thomas v. Glascoe, 2 Pa. Dist. R. 
711, 13 Pa. Co. Ct. 167 (1892); Smith v. McGinty, 101 
Pa. 402 (1882); Garden v. Scott, 1 Kulp, 196 (1882); 
BIythan v. Rescoria, 1 Kulp, 351 (1882); MoGentey v. 
Keefe, 8 Luz. Leg. Reg. 179 (1879). Under the statute 
of 1889, however, the ordinary exemption was allowed 

31 [481] 



Justices' ju- 
risdiction. 



Appendix. 



guests. 



XXXVII. 
PORTO RICO. 
Revised Statutes and Codes, 1902. 

§1. 

Every person, and every agent or officer of 
any corporation, carrying on business as an 
Receiving innkeeper or as a common carrier of passengers, 
who refuses, without just cause or excuse, to 
receive and entertain any guest, or to receive 
and carry any passenger, is guilty of a misde- 
meanor (Penal Codie, § 324). 

by the courts in some counties. Carnes v. McGuire, 18 
Pa. Co. Ct. 306 (1896); Thomas v. Glasooe, 2 Pa. Dist. R. 
711, 13 Pa. Co. Ct. 167 (1892). It was not aUowed m other 
counties. McCarty v. Dougherty, 16 Pa. Co. Ct. 86 (1895); 
DiUon V. Treverton, 16 Pa. Co. Ct. 89 (1895). The lien 
is for four weeks' board only; and eight weeks' board 
cannot thus be collected by splitting up the judgment 
and issuing two separate executions, each for two weeks' 
board. Hawk v. Rock, 14 Pa. Co. Ct. 490 (1894). The 
procedure requires first a judgment for the amount of the 
wages, and then an attachment of the wages on the judg- 
ment. Dillon V. Treverton, 16 Pa. Co. Ct. 89 (1895); 
McCarty v. Dougherty, 16 Pa. Co. Ct. 86 (1895) ; Thatcher 
V. Beam, 14 Pa. Co. Ct. 107 (1893); McGinley v. Mc- 
Donough, 3 Lane. Law Rev. 202, 27 Wkly. Notes Cas. 
340 (1885); Garden v. Scott, 1 Kulp, 196 (1882). Contra 
in a few counties. Thomas v. Glascoe, 2 Pa. Dist. R. 
711, 13 Pa. Co. Ct. 167 (1892); Smith v. Dingus, 2 Pa. 
Dist. R. 710, 12 Pa. Co. Ct. 299 (1892). A recognizance 
must be given by the plaintiff; a bond will not take its 
place. Thomas v. Glascoe, 2 Pa. Dist. R. 711, 13 Pa. 
[482] 



Appendix. 



§2. 

Any person who obtains any food or accom- 
modation at an inn or boarding house without 
paying therefor, with intent to defraud the pro- 
prietor or manager thereof, or who obtains 
credit at an inn or boarding house by the use 
of any false pretence, or who, after obtaining 
credit or accommodation at any iim or board- 
ing house, absconds and surreptitiously removes 
his baggage therefrom without pajring for his 
food or accommodations, is guilty of a misde- 
meanor {Ibid., §475). 



Fraud on inn- 
keeper. 



§3. 

The bailee may retain the thing bailed until 
the full payment of what is due him by reason 
of the depositum (Civ. Code, § 1682). 



Lien. 



§4. 

The depositum of gdods made by travellers 
in inns or hostelries shall also be considered a 
necessary one. The keepers of inns and hos- Liability, 
telries are liable for them as such bailees pro- 
vided that notice thereof may have been given 
to them or to their employees, and that the 
travellers on their part take the precautions 
which said iimkeepers or their substitutes may 
have advised them concerning the care and 
vigilance of said goods {Hid., § 1685). 

Co. Ct. 167 (1892). The record must show that the 
plamtiff was the proprietor of an inn or boarding house. 
Walker v. Kennedy, 7 Pa. Dist. R. 516, 20 Pa. Co. Ct. 
433 (1898); McCourt v. Brennan, 11 Pa. Co. Ct. 645 
(1891). It must also show that the debt was for wages. 
Leiss V. Engard, 8 Pa. Dist. R. 608, 15 Mont. Co. Law 
Rep. 173, 13 York Leg. Rec. 109 (1899). 

[483] 



Appendix. 

§5. 

The liability referred to in the preceding sec- 
tion shall include damages to the goods of the 
Same. travellers caused by servants or employees of 

the keepers of inns or hostelries as well as by 
strangers, but not those arising from robbery 
or which may be caused by any other case of 
force majeure {Ibid., § 1686). 



[484] 



Appendix. 



XXXVIII. 



RHODE ISLAND. 



General Laws, 1896. 



Any innkeeper who shall provide a suitable 
safe in his house, for the safe-keeping of any 
money, jewels, or ornaments, belonging to his 
guests, and shall notify them thereof by post- 
ing a printed notice conspicuously in the rooms 
that such safe has been provided for said pur- 
pose, shall not be Uable for the loss of any 
money, jewels, or ornaments, by theft or other- 
wise, which any guest who has neglected to 
deposit the same in such safe may sustain (Gen. 
L., chap. 233, § 19). 



Innkeeper not 
liable for the 
loss of money, 
jewels, or or- 
naments, by 
a guest, if he 
provide a suit- 
able safe and 
give notice 
thereof. 



§2. 

Every person who shall enter a hotel, eating 
house, restaurant or victualing house, and hav- 
ing ordered and partaken of food or other re- 
freshment therein, lodging or accommodation, 
shall fraudulently evade or attempt to evade 
payment therefor, shall be fined not exceeding 
twenty dollars or be imprisoned not exceed- 
ing thirty days {Ibid., chap. 279, § 51). 



Penalty for 
evading pay- 
ment for ac- 
commodation 
at hotel, etc. 



[485] 



Appendix. 



Persons hav- 
ing liens on 
personal prop- 
erty, may ap- 
ply to appel- 
late division 
of the su- 
preme court 
for an order 
for the sale 
thereof. 



§3. 

Whoever has a hen at common law for money 
due him on account of work and labor, care 
and diligence, or money expended on or about 
personal property or for storage of personal 
property or has a lien therefor on such account 
by reason of any contract expressed or implied, 
if such money is not paid within thirty days 
after a demand in writing delivered to the 
owner or some one of the owners, or left at his 
usual place of abode, if within this State, or 
made by letter mailed to him at his usual post 
office address without the State, may apply by 
petition in equity to the appellate divisidn of the 
supreme court in the county where the peti- 
tioner or some one of the petitioners resides, 
for an order for the sale of the property in sat- 
isfaction of the debt: Pnovided, that if the pe- 
titioner or some one of the petitioners resides 
in the county of Kent or Bristol, such petition 
shall be brought in said division in, Providence 
{Ibid., chap. 206, §28). 



Citation to is- 
sue, when. 



§4. 

Upon filing the petition, the clerk of said 
division shall issue a citation to the owner of 
the property to appear before said court at a 
time and place designated, to show cause why 
such lien should not be allowed and enforced by 
said court for the amount claimed {Ibid., § 29). 



§5. 

What to con- Such citation shall contain the substance of 
tain, and how ^^g petition and shall be served on the owner 
by a sheriff or deputy sheriff, at least ten days 
[486] 



Appendix. 

before the retum-day of the citation, by leav- 
ing an attested copy at the last and usual place 
of abode of the owner, or by reading the same 
in his presence and hearing, if he reside in this 
State. If such owner reside without the State, 
such citation may be served upon him in the 
manner prescribed by law for service of sub- 
poenas on non-resident defendants in suits in 
equity (Ibid., §30). 



§6. 

If the owner of the property is unknown, such 
petition may be filed thirty days after the 
money becomes due, and a citation may issue 
"to the unknown owner," describing the prop- 
erty. In such case, or if the residence of the 
owner is unknown, such citation may be served 
by pubUcation in such manner as the court may 
direct (Ibid., §31). 



In case the 
owner of prop- 
erty is un- 
known, cita- 
tion may be 
served by 
publication. 



§7. 

If the owner makes default at the time ap- 
pointed, or if upon a hearing of the parties it 
appears that a lien exists upon the property, 
and that the property ought to be sold for the 
satisfaction of the debt, the court may make 
an order for that purpose, and the property 
may be sold in conformity therewith. The 
court shall ascertain the amount due up to the 
time of the entering of the order and any sur- 
plus of the proceeds of the sale, after satisfjnng 
the debt and aU costs and charges, shall be paid 
into the registry of the court for the benefit of 
the lawful owner thereof {Ibid., § 32). 



Property may 
be sold, when. 



[487] 



Appendix. 

§8. 

The five sections next preceding shall not 
limit or restrict the right of any party having 
a lien upon property to hold or dispose of the 
same in any other manner authorized by law, 
or by contract of parties {Ibid., § 33). 



[488] 



Appendix. 



XXXIX. 

SOUTH CAEOLINA. 
Code of Laws, 1902. 

§1. 

Whenever and so long as the proprietor or Liability of 
proprietors of any hotel, inn, or hoarding house innkeeper 
shall post and keep posted in a conspicuous 
manner in the room occupied by any guest, a 
notice requiring such guest to bolt the door of 
such room, or on leaving his room to lock the 
door and leave the keys at the office, and also 
to deposit such money and jewels as are not 
ordinarily carried upon the person, in the of-^ 
fice safe, and such guest shall neglect to comply 
with the requirements of such notice, the pro- 
prietor or proprietors of such hotel, inn, or 
boarding house shall not be liable for the loss 
of the baggage of such guests which may be 
lost or stolen from said room, or for the loss of 
such money and jewels not deposited in such 
safe : Provided, That this section shall not apply 
to cases in which the proprietor or proprietors 
of such hotel, inn, or boarding house have by 
their own negligence contributed to such loss 
(CivU Code, § 1741). 

[489] 



Appendix. 



Procuring 
board by 
falsely mak- 
ing written 
representation 
that there is 
money due a 
misdemeanor. 



§2. 

Any person who procures board and lodging 
or board from any boarding house or innkeeper 
in this State upon the representation in writing 
that there is money due or to become due to 
him, to be paid on a future day, out of which 
he promises to pay for such board and lodging 
or board, and fails or refuses to so apply such 
money when collected by him, shall be guilty 
of a misdemeanor, and on conviction shall pay 
a fine not exceeding fifty dollars or be impris- 
soned not more than thirty days : Provided, That 
if such person shall pay the amount due by him 
for such board and lodging or board and the 
costs of the prosecution, the case may be dis- 
continued, in the discretion of the magistrate 
issuing the warrant (Crim. Code, §221). 



[490] 



Appendix. 



XL. 



SOUTH DAKOTA. 



Annotated Statutes, 1901. 



Shall 
lien. 



§1. 

An innkeeper or keeper of a boarding house Liability, 
is liable for all losses of or injuries to personal 
property placed by his guests or boarders un- 
der his care, unless occasioned by an irresist- 
ible, superhuman cause, by pubUc enemy, by 
the negligence of the owner, or by act of some- 
one whom he brought into, the inn or boarding 
house, and upon such property the innkeeper 
or keeper of a boarding house shall have a lien 
and right of detention for the pas^nent of such 
amount as may be due him for lodging, fare, 
boarding or other necessities by such guest or 
boarder; ^ and the said hen may be enforced 
by a sale of the property in the manner pre- 
scribed in this code for the sale of pledged prop- 
erty, or as hereinafter provided: 

1. Any person who shall obtain board, lodg- 
ing or money advances from any hotel or inn- 
keeper by false or fraudulent representations, 
and shall fail or refuse to pay for the same 

1 This hen cannot be enforced against the goods of a 
third party brought to the inn by the guest. McClain 
V. Williams, 11 S. D. 227, 76 N. W. 930, 74 Am. St. Rep. 
791, 49 L. R. A. 610 (1898). 

[491] 



have 



How enforced. 



Defrauding 
hotel or inn- 
keeper. 



Appendix. 



Fraud in use 
of other than 
real name. 



Lien, and how 
enforced, 
where bag- 
gage left af- 
ter fraud. 



when demanded, or within ten (10) days after 
such demand, shall be held to have obtained 
the same with the intent to cheat and defraud 
such hotel and innkeeper, and shall be deemed 
guilty of a misdemeanor and upon conviction 
thereof shall be punished by a fine not exceed- 
ing one hundred ($100) dollars, or by impris- 
onment in the county jail or city workhouse not 
exceeding thirty (30) days. 

2. Any person who shall obtain board or lodg- 
ing or any other accommodation at any hotel 
or inn by any other than his or her real and 
proper name, and fail or refuse to pay for the 
same when demanded, or within ten (10) days 
after such demand, shall be held to have ob- 
tained the same with the intent to cheat or 
defraud such hotel or innkeeper, and shall be 
deemed guilty of a misdemeanor and upon con- 
viction thereof shall be punished as' provided 
in this section. 

3. Baggage and other property and effects 
belonging to any person who, after obtaining 
board, lodging or other accommodations at any 
hotel or inn, shall abscond or absent himself 
or herself from such hotel or inn without having 
paid for such board, lodging or other accom- 
modations may, at the expiration of thirty (30) 
days, be disposed of by the keeper of such hotel 
or inn at private or public sale, and the net 
amount realized from such sale shall be cred- 
ited to the unpaid account of the absconder 
(Annot. Stat., § 4875). 



[492] 



§2. 

If any innkeeper or boarding-house keeper 
keeps a fireproof safe, and gives notice to a 



ex- 



empted from 
liability. 



Appendix. 

guest or boarder either personally or by put- How 
ting up a printed notice in a prominent place 
in the room occupied by the guest or boarder, 
that he keeps such a safe, and will not be liable 
for money, jewelry, documents or other articles 
of unusual value and small compass, unless 
placed therein, he is not Uable except so far 
as his own acts contribute thereto, for any loss 
of, or injury to, such article, if not deposited 
with him, and not required by the guest or 
boarder for present use {Ibid., § 4876). 

§3. 

The sale by a pledgee, of property pledged. Sale by auc- 
must be made by public auction, in the manner **'"'■ 
and upon the notice to the public usual at the 
place of sale, in respect to auction sales of sim- 
ilar property, and must be for the highest ob- 
tainable price {Ibid., § 5614). 

§4. 

After a pledgee has lawfully sold property 
pledged, or otherwise collected its proceeds, he Proceeds of 
may deduct therefrom the amount due under ^* ®' °T^ ^" 
the principal obhgation, and the necessary ex- 
penses of sale and collection; and must pay 
the surplus to the pledgor, on demand {Ibid., 
§5617). 

§5. 

Whenever any trunk, carpetbag, vaUse, bundle, Sale of un- 

packaee or article of property transported or claimed prop- 

. . , . . -11 erty, when, 

coming mto the possession of any railroad, or 

express company, or any other common carrier 

in the course of his or its business as common 

[493] 



Appendix. 

carrier, shall remain unclaimed and the legal 
charges thereon unpaid during the space of six 
months after its arrival at the point to which 
it shall have been directed, and the owner or 
person to whom the same is consigned cannot 
be found upon diligent inquiry, or being found 
and notified of the arrival of such article, shall 
refuse or neglect to receive the same and pay 
the legal charges thereon for the space of three 
months, it shall be lawful for such common 
carrier to sell such article at public auction, 
after giving the owner or consignee fifteen days' 
notice of time and place of sale, through the 
post office and by advertising in a newspaper 
published in the county where such sale is made, 
and out of the proceeds of such sale to pay all 
legal charges on such articles, and the amount 
over, if any, shall be paid to the owner or con- 
signee on demand {Ibid., §5041). 

§6. 

Act applies to The provisions of this act shall apply to hotel 
hotel keepers, j^ggpgj-g g^^d warehousemen (Ibid., § 5043). 



[494] 



Appendix. 



XLI. 

TENNESSEE. 
Shannon's Annotated Code, 1896. 

§1. 

The rule of the common law giving a right of Receivingf 
action to any person excluded from any hotel, g'^^sts. 
or public means of transportation, or place of 
amusement, is hereby abrogated; and hereafter 
no keeper of any hotel, or public house, or car- 
rier of passengers for hire, or conductors, drivers, 
or employees of such carrier or keeper, shall be 
bound, or under any obligation to entertain, 
carry, or admit any person whom he shall, for 
any reason whatever, choose not to entertain, 
carry, or admit to his house, hotel, carriage, or 
means of transportation, or place of amuse- 
ment; nor shall any right exist in favor of any 
such person so refused admission, but the right 
of such keepers of hotels and public houses,' 
carriers of passengers, and keepers of places of 
amusement and their employees to control the 
access and admission or exclusion of persons to 
or from their pubUc houses, means of trans- 
portation, and places of amusement, shall be 
as perfect and complete as that of any private 
person over his private house, carriage, or pri- 
vate theatre, or places of amusement for his 
iamily (Shannon's Code, § 3046). 

[495] 



Appkndix. 



Lien. 



When 
taches. 



§2. 

Keepers of hotels, boarding houses, and lodg- 
ing houses, whether licensed or not, shall haVe 
a lien on all furniture, baggage, wearing ap- 
parel, or other goods and chattels brought into 
any such hotel, boarding house, or lodging 
house, by any guest or patron of the same, to 
secure the payment by such guest of all sums 
due for board or lodging (Ibid., §3590). 

§3. 

it at- The lien shall attach in all cases where a lia- 
bility has been created, without regard to the 
time of such board or lodging (Ibid., § 3591). 

§4. 

How enforced. Said Hen shall be enforced as other liens are 
enforced by law (Ibid., § 3592). 

§5. 

Whenever the proprietor of any hotel or inn 
shall provide a safe in the ofEce in such hotel 
or inn, or other convenient place, for the safe- 
keeping of any money, jewels, or ornaments be- 
longing to the guests of such hotel or inn, or for 
any samples of merchandise of any kind carried 
by drummers or commercial travellers, and shall 
notify the guests thereof by posting a notice 
(stating the fact that such safe or other con- 
venient place in which money, jewels, orna- 
ments, or "samples" may be deposited) in the 
room or rooms occupied by such guests, in a 
conspicuous manner, if such guests shall neg- 
lect to deposit such money, jewels, ornaments, 
or samples of merchandise in such safe or other 
convenient place, the proprietor shall not be 
[496] 



Innkeep er 
may provide 
safe for de- 
posit of val- 
uables, and 
avoid liabil- 
ity. 



Appendix, 

liable for any loss of such money, jewels, orna- 
ments, or samples of merchandise sustained by 
such guest, by theft or otherwise {Ibid., § 3593).^ 



§6. 

Persons who shall, at any hotel, inn, or board- 
ing house, order and receive, or cause to be 
furnished, any food or accommodation, with 
intent to defraud the owner or proprietor of 
such hotel, inn, or boarding house out of the 
value or price of such food or accommodation; 
and any person who shall obtain credit at any 
hotel, inn, or boarding house by the use of any 
false pretence or device, or by fraudulently de- 
positing at such hotel, inn, or boarding house 
any baggage or property of value less than the 
amount of such credit, or of the bill by such 
person incurred, unless credit be given by ex- 
press agreement; and any person who, after 
obtaining credit or accommodation at any ho- 
tel, inn, or boarding house, shall surreptitiously 
remove his or her baggage or property there- 
from, shall, upon conviction, be adjudged 
guilty of a misdemeanor, and be punished ac- 
cordingly (Ibid., §3594) .2 



Intent to de- 
fraud; pen- 
alty. 



§7. 

Proof that lodging, food, or other accommo- Proof of 

dation, was obtained by false pretence, or by fraudulent in- 

c -I tent. 

false or fictitious show or pretence oi baggage, 

or that the party refused to pay for such food, 

1 A watch and fob is witMn the phrase "jewels and 
ornaments" in this section. Rains v. Maxwell, 112 Tenn. 
219; 79 S. W. 114 (1904). 

2 This statute is constitutional. State v. Yardley, 95 
Tenn. 546, 32 S. W 481 (1895). 

32 [497] 



Appendix. 



Baggage may 
be sold. 



lodging, or accommodation, on demand, or that 
he absconded without paying or offering to pay 
for such food, lodging or other accommodations, 
or that he surreptitiously removed, or attempted 
to remove, his or her baggage, shall be 'prima 
facie proof of the fraudulent intent mentioned 
in section 3594 {Ihid., § 3595). 

§8. 

At any time after thirty days after the person 
incurring the debt or obligation has left the 
hotel, inn, or boarding house, and the debt or 
obligation being still due and unpaid, the owner 
or proprietor of said hotel, inn, or boarding 
house may sell, at public auction, for cash, at 
hotel or boarding house office, any or all bag- 
gage or property left at said hotel, inn, or board- 
ing house, to satisfy said debt or obligation, 
without any process at law or equity, provided 
that said sale shall be advertised by written or 
printed posters for at least ten days before said 
sale {Ihid., § 3596). 



Speculation in 
theatre tick- 
ets. 



Penalty. 



[498] 



It shall be unlawful for any person, firm or 
corporation, to sell or offer for sale any theatre 
ticket or tickets for a greater price than the 
price for which same are sold at the box office 
of the theatre to which said tickets entitle the 
holders thereof to admission. Any person, firm 
or corporation violating the provisions of this 
act shall upon conviction be fined not less than 
$50.00 and not more than flOO.OO, and be im- 
prisoned in the county jail or workhouse for a 
period not to exceed thirty days at the discre- 
tion of the court (Acts of 1903, chap. 545). 



Appendix. 



XLII. 



TEXAS. 



Revised Civil Statutes, 1895. 



§1. 

Proprietors of hotels and boarding houses 
shall have a special lien upon all property or 
baggage deposited with them for the amount 
of the charges against them or their owners if 
guests at such hotel or boarding house (R. S., 
§ 3318). 



Lien in favor 
of hotels and 
boarding 
houses. 



§2. 

When possession of any of the property em- 
braced in the four preceding articles has con- 
tinued for sixty days after the charges accrue, 
and the charges so due have not been paid, it 
shall be the duty of the persons so holding said 
property to notify the owner, if in the State 
and his residence be- known, to come forward 
and pay the charges due, and on his failure 
within ten days after such notice has been given 
him to pay said charges the persons so holding 
said property, after twenty days' notice, are 
authorized to sell said property at public sale 
and apply the proceeds to the payment of said 
charges, and shall pay over the balance to the 
person entitled to the same (Ibid., § 3222). 



When prop- 
erty may be 
sold for 
charges. 



[499] 



Appendix. 



When owner 
lives out of 
the state or 
residence is 
unknown. 



§3. 

If the owner's residence is beyond the State 
or is unknown, the person holding said prop- 
erty shall not be required to give the ten 
days' notice mentioned in the preceding article 
before proceeding to sell (Ibid., § 3223). 



Balance, how 
disposed of. 



§4. 

If the person who is legally entitled to re- 
ceive the balance mentioned in this chapter is 
not known, or has removed from the State or 
from the county in which such repairing was 
done or such property was so held, it shall be 
the duty of the person so holding said prop- 
erty to pay the balance to the county treasurer 
of the county in which said property is held, 
and take his receipt therefor (Ibid., § 3224). 



What is to be 
done finally 
with the bal- 
ance. 



Defrauding 
hotels and 
boarding- 
house keep- 
ers. 

[500] 



§5. 

Whenever any balance mentioned in this 
chapter shall remain in the possession of the 
county treasurer for the period of two .years 
unclaimed by the party legally entitled to the 
same, such balance shall become a part of the 
county fund of the county in which the prop- 
erty was so sold, and shall be applied as any 
other county fund or money of such county is 
appUed or used {Ibid., § 3225). 

§6. 

Every person who shall obtain board or lodg- 
ing in any hotel or boarding house by means 
of any trick or deception or false or fraudulent 
representations, or statement or pretence, and 
shall fail or refuse to pay therefor, shall be held 



Appendix, 

to have obtained the same with the intent tp 
cheat and defraud such hotel or boarding-house 
keeper, and shall be deemed guilty of a misde-^ 
meanor, and upon conviction thereof shall be 
punished by a fine not exceeding one hundred 
dollars or by imprisonment in the coimty jail 
not exceeding one month, or by both such fine 
and imprisonment (Laws of 1899, chap. 101, 
§1). 

§7. 

It shall be the duty of every hotel and board- 
ing-house keeper in the State to post a printed Posting no- 
copy of this act in a conspicuous place in each *'•'*• 
room of his or her hotel or boarding house, and 
no conviction shall be had under the foregoing 
section until it shall be made to appear to the 
satisfaction of the court that the provisions of 
this section have been substantially complied 
with by the hotel or boarding-house keeper 
making the complaint {Ibid., § 2). 



[501] 



Appendix. 



XLIII. 



UTAH. 



Revised Statutes, 1898. 



Ranchmen, 
herders, tav- 
ern keepers, 
etc., lien of. 



Any ranchman, farmer, agister, or herder of 
cattle, tavern keeper, or hvery-stable keeper, 
to whom any horses, mules, cattle, sheep, or 
asses, shall be intrusted for the purpose of feed- 
ing, herding, pasturing, or ranching, shall have 
a lien upon such animals for the amount that 
may be due him for such feeding, herding, pas- 
turing, or ranching, and shall be authorized to 
retain possession of such animals until the said 
amount is paid (R. S., § 1401). 



Innkeepers, 
boarding 
house, etc., 
lien of. 



§2. 

Every hotel, tavern, boarding-house keeper, 
or person who lets furnished rooms, shall have 
a lien upon the baggage of his patrons, boarders, 
guests, and tenants for the amount that may 
be due from any such persons for such boarding, 
lodging, or rent, and he is hereby authorized 
to hold and retain possession of such baggage 
until the amount so due for boarding, lodging, 
or rent, or either, is paid {Ibid., § 1402). 



[502] 



Appendix. 

§3. 

At any time after thirty days after default 
made in the pajmaent of a debt secured by a 
hen upon personal property, such lien may be Foreclosure 
foreclosed by advertisement, upon the notice ^ 

and in the manner provided for the foreclosure 
of mortgages on personal property: provided, 
that a copy of the notice shall, at the time of 
posting or pubhcation, be deUvered to the owner 
of the property, or if he does not reside in the 
county, shall be transmitted to him by mail at 
his usual place of abode, if known. After pay- 
ing the reasonable expenses of the sale, together 
with the amount due and the cost of keeping 
the property up to the time of the sale, the 
residue, if any, shall be rendered to the owner 
of the property. If the property be sold by 
advertisement, a statement shall be rendered 
to the owner of the property as the law pre- 
scribes shall be made to a mortgagor, and on fail- 
ure to render such statement, the henholder 
shall forfeit to the owner the sum of twenty- 
five dollars damages. The fees for the publi- 
cation of notice shall in no case exceed the sum 
of three dollars, and the fees of the person cry- 
ing the sale shall be two dollars per day {Ibid., 
§ 1405). 

§4. 

Nothing in this chapter shall take away the 
right of action of the party to whom such hen Right of ac- 
is given, for his charges, or for any residue "*°' 
thereof, after sale of such property (Ibid., 
§ 1406). 

[503] 



Appendix. 



Obtaining 
food, etc., un- 
der false pre- 
tences. 



§5. 

Any person who shall put up at any hotel, 
inn, or boarding house, and shall procure any 
food, entertainment, or accommodation, with- 
out paying therefor, except where credit is 
given by express agreement, with intent to 
cheat or defraud such owner or keeper thereof 
out of the pay for the same; or who, with in- 
tent to cheat or defraud such owner or keeper 
out of the pay therefor, shall obtain credit at 
any hotel, inn, or boarding house for such food, 
entertainment, or accommodation by means of 
any false show of baggage or effects brought 
thereto; or who shall with such intent remove 
or cause to be removed, any baggage, or effects 
from any hotel, inn, or boarding house, while 
there is a lien existing thereon for the proper 
charges due from him for fare and board fur- 
nished therein, shall be punished by a fine not 
exceeding one hundred dollars, or by impris- 
onment in the county jail not exceeding three 
months (Ibid., § 4470). 



Innkeeper re- 
fusing guest. 



§6. 

Every person and every agent or officer of 
any corporation carrying on business as an inn- 
keeper, or as a common carrier of passengers, 
who refuses, without just cause or excuse, to 
receive and entertain any guest, or to receive 
and carry any passenger, is guilty of a misde- 
meanor {Ibid., § 4471). 



[504] 



§7. 

Any person attending a theatre, opera house, 
or an indoor place of amusement as a spectator 



Appendix. 



shall remove headwear tending to obstruct the 
view of any other person. Any person violat- 
ing any of the provisions of the section shall be 
subject to a fine of not less than one dollar nor 
more than ten dollars for each offence, upon 
conviction thereof {Ibid., §4487). 



High hats to 
be removed at 
theatre, etc. ; 
penalty. 



§8. 
Every person, body-corporate, agent, man- 
ager, or employer, doing business in the State 
of Utah, who by coercion, intimidation, threats 
or undue influence, compels his employees to 
board at a particular boarding house, or to 
trade with or at a particular store, shall be 
deemed guilty of a misdemeanor (Laws of 1901, 
chap. 44). 



No person 
must compel 
employee to 
board at par- 
ticular house 
or trade at 
particular 
store. 



[505] 



Appendix. 



XLIV. 



VERMONT. 



Statutes, 1894. 



Innkeeper's 
duty; license 
vacated for 
neglect. 



A person licensed as an innkeeper shall have 
suitable provisions, lodgings and accommoda- 
tions for strangers and travellers, and suitable 
room, hay and provender for their horses and 
cattle, and a suitable shed or covering for horses 
near his house, with conveniences in the same 
for feeding horses; and if said innkeeper neg- 
lects to be so furnished, the authority granting 
such license shall vacate the same ^ (Stat., 
§4723). 



Liability of 
innke eper, 
limited. 



[506; 



§2. 

Whenever an innkeeper shall provide a safe 
in such inn for the safe-keeping of any money, 
jewels, or ornaments belonging to the guests of 
such inn and shall give notice thereof by post- 
ing in a public and conspicuous place and man- 
ner in the office and public room, and in the 
public parlors of such inn the fact that such 
safe is provided in which such money, jewels, 
or ornaments may be deposited, if a guest shall 
neglect to deliver such money, jewels, or orna- 
ments to the person apparently in charge of the 



Appendix. 

office of such inn for deposit in such safe, such 
innkeeper shall not be liable for any loss of 
money, jewels, or ornaments sustained by such 
guest, unless such loss shall occur through some 
want of ordinary care and diligence of such 
innkeeper. No innkeeper shall be Uable to any 
guest for the loss of wearing apparel, or per- 
sonal baggage for any sum exceeding three 
hundred dollars, unless it shall appear that 
such loss occurred through want of ordinary 
care and diligence of such innkeeper {Ibid., 
§ 4728). 

§3. 

No innkeeper shall be hable for loss or dam- 
age to articles known or used as "samples" 
belonging to commercial men or other persons 
occurring other than through want of ordinary 
care and diligence of such irmkeeper {Ibid., 
§ 4729). 



Maximum lia- 
biUty. 



Commercial 
samples. 



§4. 

No innkeeper shall be liable for loss in case of 
fire or overwhelming force where such innkeeper 
has exercised ordinary and reasonable care in 
the custody of the baggage or other property 
of a guest {Ibid., § 4730). 



Fire or force. 



§5. 

A person who obtains food or lodging for 
himself, or others, at a hotel, with intent to 
defraud the owner or keeper thereof, shall be 
imprisoned not more than three months, or 
fined not more than fifty dollars {Ibid., § 4961). 



Fraud on ho- 
tel keeper. 



[5Q7] 



Appendix. 



XLV. 



VIRGINIA. 



Code of 1887, Supplement of 1899. 



Lien of inn- 
keepers, etc. 



Every innkeeper, keeper of an ordinary, board- 
ing house, and house of private entertainment, 
shall have a lien upon and may retain posses- 
sion of the baggage and effects of any guest or 
boarder, for the amount which may be due 
him from such guest or boarder for board and 
lodging, until such amount is paid (Code, 
§2489). 



Enforcement 
of liens ac- 
quired under 
the three pre- 
ceding sec- 
tions, and of 
the lien of 
bailees. 



§2. 

Any person having a lien under either of the 
preceding sections, and any bailee, except such 
as mentioned in sections twelve hundred and 
twenty-one and twelve hundred and twenty- 
two, having a lien as such at common law 
on personal property in his possession which 
he has no power to sell for the satisfaction of 
the lien, if the debt for which the lien exists 
be not paid within ten days after it is due and 
the value of the property affected by the lien 
does not exceed twenty dollars, may sell such 
property or so much thereof as may be neces- 
sary, by public auction, for cash, and apply the 



[508] 



Appendix. 

proceeds to the satisfaction of the debt and 
expenses of sale, and the surplus, if any, he 
shall pay to the owner of the property. Be- 
fore making such sale, he shall advertise the 
time, place, and terms thereof, in such manner 
as to give pubUcity thereto, and also give to 
the owner, if he be in the county or corpora- 
tion, ten days' written notice of the same and 
of the amount claimed to be due. If the owner 
cannot be found in such county or corporation, 
posting the notice at three public places therein 
shall be sufficient service thereof. If the value 
of the property be more than twenty dollars 
but does not exceed one hundred dollars, the 
party having such hen, after giving notice as 
hereinbefore provided, may apply by petition 
to any justice of the county or corporation 
wherein the property is, or, if the value of the 
property exceed one hundred dollars, to the 
county or corporation court of such county or 
corporation, for the sale of the property; and 
if, on the hearing of the case on the petition, 
the defence, if any made thereto, and such evi- 
dence as may be adduced by the parties re- 
spectively, the court or justice shall be satisfied 
that the debt and hen are established and the 
property should be sold to pay the debt, such 
court or justice shall order the sale to be made 
by the sheriff or sergeant of the said county or 
corporation or any constable thereof, who shall 
make the same and apply and dispose of the 
proceeds in the same manner as if the sale were 
made under a writ of fieri facias. If the owner 
of the property be a resident of this State, the 
notice required by this section may be served 
in the mode prescribed by .section thirty- two 



[509] 



Appendix. 

hundred and seven. If he be a non-resident, 
it may be served by posting a copy thereof in 
three public places in the county or corporation 
wherein the property is {Ibid., §2491). 



How and 
when validity 
of the lien, or 
claim of other 
person to the 
property, is 
tried. 



§3. 

Any person may file his petition, at any time 
before the property is sold or the proceeds of 
sale are paid to the plaintiff under the judg- 
ment of the justice or court, disputing the va- 
lidity of the plaintiff's lien thereon, or stating a 
claim thereto, or an interest in or lien on the 
same, and its nature; and the justice of the 
court, as the case may be, shall inquire into 
such claim, and if it be found that the peti- 
tioner has title to, or a lien on, or any interest 
in, such property or proceeds of sale, the jus- 
tice or court shall make such order as is neces- 
sary to protect his rights (Ibid., § 2492). 



Appeals, how 
taken and 
tried. 



§4. 

Any party may appeal from the judgment of 
the justice, as in case of warrants for small 
claims imder chapter one himdred and forty, 
and such appeal shall be heard and determined 
in hke manner, as appeals under said chapter 
(Ibid., §2493). 



Defrauding 
innkeeper. 



[510] 



§5. 

Whoever puts up at a hotel or boarding house 
and without having an express agreement for 
credit procures food, entertainment, or accom- 
modation without paying therefor and with in- 
tent to cheat or defraud the owner or keeper 
of such hotel or boarding house out of the pay 



Appendix. 

for the same; or with intent to cheat or defraud 
such owner or keeper out of the pay therefor 
obtains credit at a hotel or boarding house for 
such food, entertainment, or accommodation by 
means of any false show of baggage or effects 
brought thereto; or with such intent obtains 
credit at a hotel or boarding house for such 
food, entertainment, or accommodation through 
any misrepresentation or false statement; or 
with such intent removes or causes to be re- 
moved any baggage or effects from a hotel or 
boarding house while there is a hen existing 
thereon for the proper charges due from him 
for fare and board furnished therein shall be 
punished by imprisonment not exceeding three 
months or by fine not exceeding fifty dollars 
{Ibid., § 3722b). 



[511] 



Appendix. 



XLVI. 
WASHINGTON. 

General Statutes and Codes, 1891. 

§1. 

Lien. Hereafter all hotel keepers, innkeepers, lodg- 

ing-house keepers, and boarding-house keepers 
in this State shall have a lien upon the baggage, 
property, or other valuables of their guests, 
lodgers, or boarders brought into such hotel, 
inn, lodging house, or boarding house by such 
guests, lodgers, or boarders, for the proper 
charges due from such guests, lodgers, or 
boarders for their accommodation, board or 
lodging, and such other extras as are furnished 
at their request, and shall have the right to re- 
tain in their possession such baggage, property, 
or other valuables until such charges are fully 
paid, and to sell such baggage, property, or 
other valuables for the payment of such charges 
in the manner provided in the next succeed- 
ing section of this title (Gen. Stat., § 2710). 

§2. 

Sale of bag- Whenever any baggage, property, or other 

gage, etc., to valuables which have been retained by any ho- 

satisfy lien; ^^ keeper, innkeeper, lodging-house keeper, or 

boarding-house keeper in his possession by vir- 

[512] 



Appendix. 

tue of the provision of the next preceding sec- 
tion of this title shall remain unredeemed for 
the period of three months after the same shall 
have been so retained, then it shall be lawful 
for such hotel keeper, innkeeper, lodging-house 
keeper, or boarding-house keeper to sell such 
baggage, property, or other valuables at public 
auction, after giving the owner thereof ten days' 
notice of the time and place of such sale, through 
the post office, or by advertising in some news- 
paper published in the county where such sale 
is made, or by posting notices in three con- 
spicuous places in such county, and out of the 
proceeds of such sale to pay all legal charges 
due from the owner of such baggage, property, 
or other valuables, including proper charges for 
storage of the same, and the overplus, if any, 
shall be paid to the owner upon demand (Ibid., 
§2711). 



§3. 

No innkeeper who constantly has in his inn 
an iron safe or suitable vault in good order, 
and fit for the safe custody of money, bank 
notes, jewelry, articles of gold and silver manu- 
facture, precious stones and bullion, and who 
keeps a copy of this section, printed by itself 
in large, plain Roman type, and framed, con- 
stantly and conspicuously suspended in the of- 
fice, barroom, saloon, reading, sitting, and par- 
lor room of his inn, and also a copy printed by 
itself in ordinary sized plain Roman type, posted 
upon the inside of the entrance door of every 
public sleeping room of his inn, shall be hable 
for the loss of any such article suffered by any 
33 



Responsibil- 
ity of inn- 
keepers limit- 
ed. 



[513] 



Appendix. 

guest, unless such guest has first offered to de- 
hver such property lost by him to such inn- 
keeper for custody in such iron safe or vault, 
and such innkeeper has refused or neglected to 
receive and deposit such property in his safe 
or vault, and to give such guest a receipt there- 
for; provided, that all doors to rooms furnished 
to guests shall be provided with shde bolts in- 
side of such rooms on all doors; otherwise he 
shall be liable; but every innkeeper shall be 
liable for any loss of any of the above-enumer- 
ated articles by a guest in his inn, when caused 
by the theft or negligence of the innkeeper or 
any of his servants {Ibid., § 2712). 



Fraud on ho- 
tel keepers, 
etc.; penalty. 



§4. 

A person who obtains any food, lodging or 
accommodation at a hotel, boarding house, res- 
taurant, or lodging house, without paying there- 
for, with intent to defraud the proprietor or 
manager thereof, or who obtains credit at a 
hotel, boarding house, or lodging house by the 
use of false pretence, or who after obtaining 
board, lodging or accommodations at a hotel, 
boarding house, restaurant, or lodging house, 
absconds or surreptitiously removes his bag- 
gage therefrom without paying for his food, 
lodging or accommodation, is guilty of a mis- 
demeanor, and on conviction thereof shall be 
fined in any sum not less than ten dollars nor 
more than fifty dollars, or imprisonment in the 
county jail not less than ten nor more than 
thirty days (Laws of 1903, chap. 131, § 1). 



[514] 



Appendix. 

§5. 

Proof that lodging, food or other accommo- Proof of 
dation was obtained by false pretence or by fraudulent in- 
false or fictitious sham or pretence of any bag- 
gage or other property, or that the person re- 
fused or neglected to pay for such food, lodging 
or other accommodation on demand, or that he 
gave in payment for such food, lodging or other 
accommodation bank draft on which payment 
was refused, or that he absconded without pay- 
ing or offering to pay for such food, lodging or 
other accommodation, or that he surreptitiously 
removed or attempted to remove his baggage 
shall be prima facie proof of the fraudulent 
intent mentioned in section 1 {Ibid., §2). 



[515] 



Appendix. 



XLVII. 

WEST VIRGINIA. 
Code of 1899. 



Tavern li- 
censes. 



Fraud on ho- 
tel keepers, 
etc. 



Every house where food and lodging is usu- 
ally furnished to travellers and payment required 
therefor, shall be deemed a hotel or tavern. 
Every person licensed to keep a hotel or tavern 
shall constantly provide the same with lodging 
and diet for travellers and their servants, and 
with stableage and provender, or pasturage and 
provender, as the season may require, for their 
horses; but if such hotel be in a city, village or 
town, the council may, if the applicant desire 
it, dispense with the necessity of providing for 
horses (Code, chap. 32, § 8). 

§2- 

Every person who shall at any hotel, inn, 
eating, lodging or boarding house, or restau- 
rant, receive or cause to be furnished any food 
or accommodation with intent to defraud the 
owner or keeper of such hotel, inn, eating, lodg- 
ing or boarding house, or restaurant, and any 
person who shall obtain credit at any hotel, 
inn, eating, lodging or boarding house, or res- 
taurant, by the use of any false pretence or 



[516] 



Appendix. 

device, or by depositing at such hotel, hin, eat- 
ing, lodging or boarding house, or restaurant, 
any baggage or property of value less than the 
amount of such credit, or of the biU by such 
person incurred, with such fraudulent intent, 
and any person, who after obtaining credit or 
accommodation at any hotel, inn, eating, lodg- 
ing or boarding house, or restaurant, shall ab- 
scond from such hotel, inn, eating, lodging or 
boarding house, or restaurant, or shall remove 
or attempt to remove therefrom any baggage 
or personal property of any kind subject to the 
lien hereafter mentioned, with intent to defraud 
the owner or keeper of such hotel, inn, eating, 
lodging or boarding house, or restaurant, with- 
out having first paid, satisfied or arranged all 
claims or bills for lodging, entertainment or 
accommodation, shall be guilty of a misde- 
meanor, and, upon conviction thereof, be fined 
not less than twenty-five dollars nor more than Penalty, 
two hundred dollars, and may, at the discretion 
of the court or justice trying the case, be con- 
fined in the county jail for a term not less than 
ten nor more than thirty days. Any justice of 
the peace for the county wherein the offence 
was committed, shall have concurrent jurisdic- 
tion of such offence with the circuit or other 
courts of said county. The owner or keeper Lien of hotel 
of any hotel, inn, eating, boarding or lodging »®P^'s, e . 
house, or restaurant, shall have a hen upon, 
and may keep possession of, the baggage or 
other personal property of any kind, of any 
person or persons which he or they may have 
therein, for all such claims or bills for lodging, 
entertainment or accommodation, to the ex- 
tent only of his said claim or bill; and after 

[517] 



Appendix. 

the expiration of three months from the date 
of the departure of such person or persons, and 
all or part of such claims remaining unpaid 
and not arranged, said property or such part 
thereof as may be necessary shall be sold to the 
highest bidder for cash, in the same way, upon 
the same advertisement, and by the same of- 
ficers, that personal property is now sold on 
execution; and any money remaining from said 
sale after satisfying the claim, costs and ex- 
penses of sale, shall be paid to the person or 
persons, whose property was sold (Ibid., chap. 
145, § 32). 

§3. 

It shall be the duty of the keepers of hotels, 
inns, lodging or boarding houses to exercise due 
Limitation of care and diligence in providing honest servants, 
* ' ^' and employees, and to take every reasonable 

precaution to protect the persons and property 
of his or their guests and boarders, but no such 
keeper of any hotel, inn, lodging or boarding 
house, shall be held hable in a greater sum than 
two hundred and fifty dollars for the loss of 
any wearing apparel, baggage or other prop- 
erty, not hereinafter mentioned, belonging to 
either a guest or boarder, when such loss takes 
place from the room or rooms occupied by said 
guest or boarder, and no keeper of a hotel, inn, 
lodging or boarding house, shall be held hable 
for any loss on the part of any guest or boarder 
of jewelry, money or other valuables of like 
nature : Provided, Such keeper shall have posted 
in the room or rooms occupied by guests or 
boarders in a conspicuous place, and in the 
hotel office and public reception room of such 
[518] 



Appendix. 

hotel, inn, lodging or boarding house, a notice 
stating the fact that "jewelry, money and other 
valuables of like nature must be deposited in 
the office of such hotel, inn, lodging or board- 
ing house," unless such loss shall take place 
from such office after such deposit (Ibid., § 33). 



[519] 



Appendix. 



iimkeepers. 



XVIII. 

WISCONSIN. 

Annotated Statutes of 1899. 



No innkeeper who shall constantly have in 
his inn an iron safe, in good order and suitable 
Liability of for the safe custody of money, jewelry and ar- 
ticles of gold or silver manufacture and the like, 
and who shall keep a copy of this and the next 
succeeding section printed together in large, 
plain English type, and framed, constantly and 
conspicuously suspended in the ofSce, barroom, 
saloon, reading, sitting and parlor rooms of his 
inn, shall be liable for the loss of any such ar- 
ticles aforesaid, suffered by any guest, unless 
such guest shall have first offered to deliver 
such property lost by him to such innkeeper 
for custody in such iron safe, and such innkeeper 
shall have 'refused or omitted to take it and 
deposit it in such safe for its custody, and 
give such guest a receipt therefor (Ann. Stat., 
§ 1725).! 



[520] 



1 A watch is within the provisions of this section. 
Stewart v. Parsons, 24 Wis. 241 (1869). 



Appendix. 



§2. 

No innkeeper shall be liable for the loss of 
any baggage or other property of his guest, 
caused by fire, not intentional, produced by 
the innkeeper or any of his servants; but every 
innkeeper shall be liable for any loss of any 
guest in his inn, caused by theft or gross neg- 
ligence of such innkeeper or any of his servants 
(Ibid., §1726). 



Liability 
loss of 
gage. 



for 



§3. 

Every innkeeper, and every keeper of a 
boarding house shall have a hen upon and re- 
tain the possession of the baggage and effects 
of any guest or boarder for the amount which 
may be due him for board from such guest or 
boarder, until such amount is paid {Ibid., 
§ 3344) .2 



Liens of inn- 
keepers and 
boar ding- 
house keep- 
ers. 



§4. 

Every person having a lien given by either 
of the four last sections, or existing in favor of 
any bailee for hire, carrier, warehouseman or 
pawnee, or otherwise, by the common law, may, 
in case such debt remain unpaid for three 
months, and the value of the property affected 
thereby does not exceed one himdred dollars, 
sell such property at pubHc auction, and apply 
the proceeds of such sale to the payment of 
the amount due him, and the expenses of such 
sale. Notice, in writing, of the time and place 
of such sale, and of the amount claimed to be 
due, shall be given to the owner of such prop- 



How lien en- 
forced. 



a See Nichols v. HaUiday, 27 Wis. 406 (1871). 



[521] 



Appendix. 

erty personally, or by leaving the same at his 
place of abode, if a resident of this State, and 
if not, by publication thereof, once in each week, 
for three weeks successively, next before the 
time of sale, in some newspaper published in 
the county in which such lien accrues, if there 
be one, and if not, by posting such notice in 
three pubhc places in such county. If such 
property exceed in value one hundred dollars, 
then such lien may be enforced against the 
same by action in any court having jurisdic- 
tion {Ibid., § 3347). 

§5. 

Whenever any personal property shall be con- 
signed to or deposited with any common car- 
Unclaimed rier, forwarding merchant, wharfinger, ware- 
proper y. houseman, innkeeper, or the keeper of any depot 
for the storage of baggage, merchandise or other 
personal property, such consignee, or bailee, 
shall immediately cause to be entered in a 
proper book kept by him, a description of such 
property, with the date of the reception thereof; 
and if the same shall not have been so con- 
signed or deposited for the purpose of being 
forwarded or disposed of according to directions 
received by such consignee or bailee, at or be- 
fore his reception thereof, he shall immediately 
notify the owner by mail thereof, if his name 
and residence be known, or can, with reason- 
able diligence, be ascertained {Ibid., § 1637). 

§6. 
Sale. If any such property shall not be claimed 

and taken away within one year after it shall 
have been so received, the same may be sold 
[522] 



Appendix. 



as hereinafter directed; but when such prop- 
erty shall be perishable, or subject to decay 
by keeping, it may be sold if not claimed and 
taken within thirty days {Ibid., § 1638). 

§7. 

Before any such property except as afore- 
said, shall be sold, ten days' notice of such sale, 
if the property be perishable, or subject to de- 
cay in keeping, and sixty days' notice in other 
cases, shall be given the owner thereof by the 
person in possession of such property, either 
personally or by mail, or by leaving a written 
notice at his residence or place of business; but 
if the name and residence of such owner be not 
known, and cannot with reasonable diligence 
be ascertained, such notice shall be given by 
publication thereof for the periods aforesaid 
respectively, dating from the first publication, 
at least once in each week, in a newspaper 
pubhshed in the county, if there be one; and 
if there be none, then in a newspaper pubhshed 
in an adjoining county {Ibid., § 1639). 

§8. 

If the owner or person entitled to such prop- 
erty shall not take the same away and pay the 
charges thereon, after notice as aforesaid shall 
have been given, the person having possession 
thereof, his agent or attorney, shall make and 
deliver to a justice of the peace of the same 
town an affidavit, setting forth a description of 
the property remaining unclaimed, the time of 
its reception, the publication of the notice, and 
whether the owner of such property be known 
or unknown {Ibid., § 1640). 



Notice of sale. 



Proceedings 
if property 
not claimed. 



[523] 



Appendix. 

§9. 

Upon the delivery to him of such affidavit, 
the justice shall cause such property to be 
Inventory. opened and examined in his presence, and a 
true inventory thereof to be made, and shall 
annex to such inventory an order imder his 
hand, that the property therein described be 
sold by any constable of the city or town where 
the same shall be, at public auction (Ibid., 
§ 1641). 



Notice of auc- 
tion sale. 



Ret urn 
sale. 



of 



Proceeds, 
how disposed 
of. 

[524] 



§10. 

The constable receiving such inventory and 
order shall give ten days' notice of the sale, 
by posting up written notices thereof in three 
or more public places in such city or town, and 
sell such property at public auction to the high- 
est bidder, in the same manner as provided by 
law for sales under execution from justices' 
courts (Ibid., § 1642). 

§11. 

Upon completing the sale, the constable mak- 
ing the same shall indorse upon the order afore- 
said a return of his proceedings thereon, and 
return the same to the justice, together with 
the inventory and the proceeds of the sale, after 
deducting his fees {Ibid., § 1643). 

§12. 

From the proceeds of such sale the justice 
shall pay all legal charges that have been in- 
curred in relation to such property, or a ratable 
proportion of each charge, if the proceeds of 
such sale shall not be sufficient to pay all the 



Appendix. 

charges; and the balance, if any there be, he 
shall immediately pay over to the treasurer of 
his county, and deliver a statement therewith, 
containing a description of the property sold, 
the gross amount of such sale, and the amount 
of costs, charges and expenses paid to each 
person. The county treasurer shall file such 
statement, give a receipt for the money, and 
properly enter in his books the amount thereof 
and the date {Ibid., § 1644). 



§13. 

If the owner of the property sold, or his legal 
representatives, shall at any time within five 
years after such money shall have been depos- 
ited in the county treasury, furnish satisfactory 
evidence to the treasurer, of the ownership of 
such property, he or they shall be entitled to 
receive from such treasurer the amount so de- 
posited with him. If not claimed within said 
time by the owner or his legal representatives, 
the same shall belong to the county {Ibid., 
§ 1645). 



Owner, when 
to have pro- 
ceeds; when 
to be paid 
county. 



§14. 

The fees allowed to any justice of the peace 
imder this chapter, shall be one dollar for each 
day's service, and to any constable the same 
fees as are allowed by law for sales upon exe- 
cution, and ten cents per folio for making an 
inventory of property {Ibid., § 1646). 



Officers' fees. 



§15. 

Any person who shall obtain credit at any 
hotel or boarding house for food, entertairmient 



[525] 



Appendix. 



Defrauding 
innkeeper 



or accommodation, by means of any false show 
of baggage or effects brought thereto, or who 
shall, with intent to cheat or defraud the owner 
or keeper of any such hotel, inn or boarding 
house, out of the pay for any such food, enter- 
tainment or accommodation, remove or cause 
to be removed any baggage or effects from any 
hotel, inn or boarding house, while there is a 
lien existing thereon for the proper charges due 
from him for board and entertainment furnished 
as aforesaid, shall be punished by a fine not ex- 
ceeding one hundred dollars, or imprisonment 
in the county jail not exceeding three months 
(Laws of 1895, chap. 106). 



Fraudulently 
obtaining 
food, etc. 



Complainant 
shall give se- 
curity for 
costs. 

[526] 



§16. 

Any person who obtains any food or accom- 
modation at any hotel or inn without pajdng 
therefor, except when credit is given by express 
agreement, with intent to defraud the propri- 
etor or manager thereof, or who obtains credit 
at any hotel or inn by use of any false show or 
pretence, or who after obtaining credit or ac- 
commodation at any hotel or inn, absconds or 
surreptitiously removes his baggage therefrom, 
without paying for his food and accommoda- 
tion, shall be punished by fine not exceeding 
one hundred dollars, or imprisonment in thei 
county jail not exceeding three months (Laws 
of 1897, chap. 197, § 1). 

§17. 
The complainant shall be required to give se- 
curity for costs, and if he neglects or refuses so 
to do, no warrant shall be issued under the 
foregoing section of this act {Ibid., §2). 



Appendix. 

§18. 

Actions commenced under this act shall not 
be settled or compromised in any manner un- 
less the costs incurred up to the time of such Actions not to 
settlement or compromise are fully paid and 
discharged, and if any such settlement or com- are paid, 
promise be made without such costs being paid 
as aforesaid, the court before whom such action 
is brought or is pending shall enter judgment 
against the complainant for the fuU amount of 
such costs so remaining unpaid {Ibid., § 3). 



be settled un- 
less all costs 



[527] 



Appendix. 



XLIX. 



WYOMING. 



Revised Statutes of 1899. 



Safe; liability 
limited. 



§1. 

Every landlord or keeper of a public inn or 
hotel in this State, who shall keep in his place 
of business an iron safe, in good order and suit- 
able for the purpose hereinafter named, and 
who shall post or cause to be posted in some 
conspicuous place in his office, and on the in- 
side of every entrance door to every bed- 
chamber, the notice hereinafter mentioned, 
shall not be liable for the loss of any money, 
jewelry or other valuables belonging to his 
guests or customers, unless such loss shall occur 
by the hand or through the negligence of such 
landlord, or by a clerk or servant employed by 
him in such hotel or inn; Provided, That noth- 
ing herein contained shall apply to such amount 
of money or other valuables as is usually com- 
mon and prudent for any such guest to retain 
in his room or about his person (R. S., § 2514). 



Notice. 



[528] 



§2. 

The notice required by the preceding section 

shall be substantially as follows: "Notice is 

hereby given that the proprietor of this house 

keeps an iron safe suitable for the safe deposit 



Appendix. 

of money, jewelry, or other valuable articles 
belonging to his guests and customers, and un- 
less they leave their money, jewelry, precious 
stones or other valuables with the landlord, his 
agent or clerk, in order that he may deposit 
the same for safe-keeping in such iron safe, he 
will not be liable for the loss thereof." (Ibid., 
§ 2515). 

§3. 

Any keeper of a hotel or boarding house or 
lodging house or restaurant shall have a hen 
upon the baggage or other personal property of Lion. 
any person who shall have obtained board or 
lodging or both, from such keeper, for the 
amount due for such board or lodging, and such 
keeper is hereby authorized to retain the pos- 
sesssion of such baggage, or personal property 
until said amount is paid. If the amount due 
for such board or lodging is not paid within 
sixty days from the time the same shall have 
become due and payable, any such keeper may 
proceed to have such baggage or other personal 
property sold for the satisfaction of his hen in 
the following manner: He shall give ten days' 
prior notice of the sale of said articles by him Sale, 
held under his lien, a copy of which he shall 
immediately transmit, by registered letter, to 
the owner of the articles at his usual place of 
abode if known, and he shall post said notices 
of sale in three conspicuous and public places 
in the city, town, village or place where said 
keeper resides, giving a description of the ar- 
ticles to be sold and the time and place of sale, 
one of which notices shall be posted in the of- 

34 [529] 



Appendix. 

fice of the hotel, lodging house, boarding house 
or restaurant, if still maintained. At the time 
mentioned in said notices, the said keeper may- 
proceed to sell to the highest and best bidder 
for cash, all of such personal property held im- 
der the lien, or so much thereof as shall be 
necessary to pay his claim, and the residue of 
the unsold property, together with the surplus 
proceeds of such property sold, if any, he shall 
surrender to the owner, his heirs or legal rep- 
resentatives on application therefor {Ibid., 
§ 2860). 



Obtaining 
board or lodg- 
ing by false 
representa- 
tions. 



Hats off in 

theatre. 



§4. 

It is hereby declared to be a misdemeanor 
to procure board or lodging, or both, under and 
by false or fraudulent representations. Every 
person convicted of such misdemeanor shall be 
punished by a fine of not more than twenty-five 
dollars nor less than five dollars, or by impris- 
onment in the coimty jail not more than thirty 
days, nor less than five days, or by both; Pro- 
vided, That the action may be dismissed upon 
the payment by the defendant, of the amount 
due for such board or lodging, and the costs of 
the action {Ibid., § 5145). 

§5. 

Any person attending a theatre, opera house, 
or an indoor place of amusement as a spectator, 
shall remove headwear tending to obstruct the 
view of any other person. Any person violat- 
ing any of the provisions of this section shall 
be subject to a fine of not less than one nor 
more than ten dollars for each offence, upon 
conviction thereof {Ibid., § 2629). 



[530] 



Appendix. 



L. 

DISTRICT OF COLUMBIA. 
Code of 1902. 

§1. 

Every innkeeper, keeper of a boarding house, Lien, 
or house of private entertainment shall have a 
lien upon and may retain possession of the bag- 
gage and effects of any guest or boarder for the 
amount which may be due him from such guest 
for board and lodging imtil such amount is paid 
(Code, § 1261). 



§2. 

If the amount due and for which a hen is 
given by any of the last three sections is not 
paid after the end of a month after the same 
is due, and the property bound by said Hen 
does not exceed the sum of fifty dollars, then 
the party entitled to such lien, after demand 
of payment upon the debtor, if he be within 
the District, may proceed to sell the property 
so subject to lien at public auction, after giving 
notice once a week for three successive weeks 
in some daily newspaper published in the Dis- 
trict, and the proceeds of such sale shall be 
apphed, first, to the expenses of such sales and 
the discharge of such lien, and the remainder, 



Enforcement 
by sale. 



[531] 



Appendix. 

if any, shall be paid over to the owner of the 
property {Ibid., § 1263). 



Enforcement 
by bill in 
equity. 



§3. 

If the value of the property so subject to 
hen shall exceed the sum of fifty doUars, the 
proceeding to enforce such hen shall be by 
bill or petition in equity, and the decree, which 
shall be rendered according to the due course 
of proceedings in equity, besides subjecting the 
thing upon which the lien was attached to sale 
for the satisfaction of the plaintiff's demand, 
shall adjudge that the plaintiff recover his de- 
mand against the defendant from whom such 
claim is due, and may have execution therefor 
as at law {Ibid., § 1264). 



Defrauding 
hotel keeper. 



[532] 



§4. 

Any person who obtains any lodging, food, 
or accommodation at an inn, boarding house, 
or lodging house, without paying therefor, 
with intent to defraud the proprietor or man- 
ager thereof, or who obtains credit at such 
an inn, boarding house, or lodging house by 
the use of any false pretence, or who, after ob- 
taining credit or accommodation at such an 
inn, boarding house, or lodging house, absconds 
or surreptitiously removes his baggage there- 
from without paying for his food, accommoda- 
tion, or lodging, shall be deemed guilty of a 
misdemeanor, and upon conviction thereof in 
the police court of the District of Columbia be 
fined not more than one hundred dollars or im- 
prisoned not more than six months, or both, 
in the discretion of the court {Ibid., § 842). 



Appendix. 



LI. 



UNITED STATES. 



Compiled Statutes, 1901. 



§1. 

All persons within the jurisdiction of the 
United States shall be entitled to the full and 
equal enjoyment of the accommodations, ad- 
vantages, facilities, and privileges of inns, pub- 
lic conveyances on land or water, theatres, and 
other places of public amusement; subject only 
to the conditions and Umitations established by 
law, and applicable alike to citizens of every 
race and color, regardless of any previous con- 
dition of servitude (Comp. Stat., § 1977, par. 1). 



Civil 
Act. 



Rights 



§2. 

That any person who shall violate the fore- 
going section by denying to any citizen, except 
for reasons by law applicable to citizens of Penalty. 
every race and color, and regardless of any pre- 
vious condition of servitude, the full enjoyment 
of any of the accommodations, advantages, {gr- 
cilities, or privileges in said section enumerated, 
or by aiding or inciting such denial, shall, for 
every such offence, forfeit and pay the simi of 
five hundred dollars to the person aggrieved 
thereby, to be recovered in an action of debt, 

[533] 



Appendix. 

with full costs; and shall also, for every such 
offence, be deemed guilty of a misdemeanor, 
and, upon conviction thereof, shall be fined not 
less than five hundred nor more than one thou- 
sand dollars, or shaU be imprisoned not less 
than thirty days nor more than one year: Pro- 
vided, That all persons may elect to sue for the 
penalty aforesaid or to proceed under their 
rights at common law and by state statutes; 
and having so elected to proceed in the one 
mode or the other, their right to proceed in the 
other jurisdiction shall be barred. But this 
proviso shall not apply to criminal proceedings, 
either under this act or the criminal law of any 
State: And provided further. That a judgment 
for the penalty in favor of the party aggrieved, 
or a judgment upon an indictment, shall be a 
bar to either prosecution respectively {Ibid., 
par. 2).i 

1 Sections 1 and 2 of this act have been held uncon- 
stitutional, at least so far as their operation in the several 
States is concerned, but without deciding whether the 
law as it stands is operative in the Territories and District 
of Columbia. Civil Rights Cases, 109 U. S. 3, 27 L. 
Ed. 835 (1883). 



[534] 



TABLE OF CASES CITED 



[references are to sections.] 

A. 

Abel, Light v., 6 All. N. B. 400 138 

Acheson, Coates v., 23 Mo. App. 255 App. XXIII, S 2 

Adair, Bullock v., 63 111. App. 30 16 

Adams v. Clem, 41 Ga. 65 234 

V. Freeman, 12 Johns. 408 61 

Haff v., 59 Pac. Ill 138, 139, 140, 201 

Hilton v., 71 Me. 19 162 

Pullman P. C. Co. v., 120 Ala. 581 . . 341, 342, 383, 387, 391, 392 

Agricultural Society, Dunn v., 46 Oh. S. 93 322 

Airey v. Pulhnan P. C. Co., 50 La. Ann. 648 370 

Albin V. Presby, 8 N. H. 408 155 

Aldrich, Sibley v., 33 N. H. 553 185 

Alford, Sunbolf v., 3 M. & W. 248 257, 259 

Allen V. Smith, 12 C. B. N. S. 638 232, 233, 272, 275 

Alvord V. Davenport, 43 Vt. 30 261, 269 

American Exp. Co., Jaquith v., 60 N. H. 61 268, 298 

Amey v. Winchester, 68 N. H. 447 134 

Amidon, Read v., 41 Vt. 15 113, 131, 148, 223, 225, 285 

Anderson, Newcombe v., 11 Ont. 665 265, 298 

Andrews, Cross v., Cro. Eliz. 622 112 

Angus V. McLachlan, 23 Ch. D. 330 269, 273 

Anonymous, Godb. 345 19, 70, 71, 98, 282 

Keilw. 50, pi. 4 52 

Moore, 158 153 

1 Roll. Abr. 3, pi. 4 125 

Y. B. 42 Ed. 3, 11, pi. 13 148, 181, 182 

Y. B. 43 Ed. 3, 33, pi. 38 281 

42 Lib. Assis. 260, pi. 17 181 

2 Hen. 4, 3, pi. 9 .' 281 

11 Hen. 4, 33, pi. 60 281 

11 Hen. 4, 45, pi. 18 12, 124, 148, 149 

39 Hen. 6, 18, pi. 24 52 

5 Ed. 4, 2, pi. 20 252 

22 Ed. 4, 49, pi. 15 52 

14 Hen. 7, 22, pi. 4 52 

21 Hen. 7, 14, pi. 19 252 

[535] 



Table of Cases Cited. 

[hbferencbs ahe to sections.] 

Appleton V. Welch, 20 N. Y. Misc. 343 304 

Arcade Hotel Co. v. Wiatt, 44 Oh. S. 32 205 

Long v., 9 Ohio Dec. 372 431, 432, App. XXXIII, § 3 

Archer v. Willingrice, 4 Esp. 186 325 

Arents, Pullman P. C. Co. v., 28 Tex. Civ. App. 71 . . . 385, 391 

Armistead v. Wilde, 17 Q. B. 261 223, 227 

Arnold, Lewis v., 4 C. & P. 354 318 

Arthur v. Pullman Co., 44 N. Y. Misc. 229 385 

Askin, Reg. v., 20 U. C. Q. B. 626 252 

Atchison, T. & S. F. R. R., Paddock v., 37 Fed. 841 366 

Atkinson v. Sellers, 5 C. B. N. S. 442 63, 131 

Atwater v. Sawyer, 76 Me. 539 20, 94, 98, 169 

Axon, Newson v., 1 McCord, 509 188 



B. 

Bacon, Jenkins v., Ill Mass. 373 206 

Maloney v., 33 Mo. App. 501 145 

Spice v., 36 L. T. 896 224 

Spicer v., 2 Ex. D. 463 413, 419 

Baehr v. Downey, 133 Mich. 163 190, 234, 235 

Bailey, Shoecraft v., 25 la. 553 . . 139, 226 

Baker v. Dessauer, 49 Ind. 28 186, 188 

V. Stratton, 52 N. J. L. 277 264, App. XXVIII, § 1 

Baldwin v. Webb, 121 Ga. 416 241 

Bales, Pulbnan P. C. Co. v., 80 Tex. 211 368 

Balmoral Hotel Co., McElwaine v., Mont. L. R. 7 S. C. 139 . 232 

Baltimore & O. R. R., Bevis v., 26 Mo. App. 19 383, 388 

Wilson v., 32 Mo. App. 682 . 383 

Bancroft v. Dumas, 21 Vt. 456 . . 46 

Banks v. Oden, 1 A. K. Marsh. 546 242 

Barber v. Harrison, 6 City Hall Rec. 89 201 

Barker, Clancy v., 131 Fed. 161 170, 173, 174 

Clancy v., 98 N. W. 440 172, 282 

Pullman P. C. Co. v., 4 Col. 344 .. . . 365, 402 

Bamett v. Walker, 39 N. Y. Misc. 323 . 265, 298, App. XXX, § 11 

Barney, U. S. v., 3 Hughes, 545 . 258 

Bamum, Pettigrew v., 11 Md. 434 191 

Barrott v. Pullman's P. C. Co., 51 Fed. 796 .. . ... 383 

Bather, Day v., 2 H. & C. 14 183, 232, 233 

Batterson v. Vogel, 8 Mo. App. 24 . . 413, 417, 418, 421, App. XXIII, § 3 

10 Mo. App. 235 224 

Bayley v. Merrill, 10 All. 360 267 

Beal, Bellis v., 2 Esp. 592 325 

Beale v. Posey, 72 Ala. 323 139, 140, 413, 417, App. I, § 3 

[536] 



Table of Cases Cited. 

[references are to sections.] 

Beall V. Beck, Fed. Cas. No. 1161 14, 32, 291 

Beam, Thatcher v., 14 Pa. Co. Ct. 107 App. XXXVI, § 10 

Bean, Dunn v., Que. R. 11 Sup. Ct. 538 15, 301, 303 

Beaver, Shoemaker v., 42 Leg. Int. 511 243 

Beck, Beall v., Fed. Cas. No. 1161 14, 32, 291 

Becker v. Haynes, 29 Fed. 441 145, 285, 416, 427 

Beckerv. Wamer, 90Hun, 187 224, 431, App. XXX, §3 

Bedford Hotel Co., Marchioness of Huntly v., 56 J. P. S3 . . . 414, 418 

Beedle v. Morris, Cro. Jac. 224 285 

Belden v. Pulhnan P. C. Co., 43 S. W. 22 384, 389 

Bell, Ex parte, 32 Tex. Cr. 308 325 

V. Mahn, 121 Pa. 225 311, 312 

Clark v., 62 Pa. 529 234 

Bellis V. Beal, 2 Esp. 592 325 

V. Burghall, 2 Esp. 722 325 

Belote, Lusk v., 22 Minn. 468 140, 188, 201 

Bemon v. Watson, 1 RoU Abr. 3 pi. 1 147 

Bendetson v. French, 46 N. Y. 266 426, 427, App. XXX, § 3 

Benecke, Hods v., 11 Mo. App. 393 ... . 279, App. XXIII, §§ 1, 2 

Benner, Buddenburg v., 1 Hilt. 84 224, 296 

Bennett v. Mellor, 5 T. R. 273 Ill, 124, 131 

Benson, State v., 28 Minn. 424 441, 443, App. XXI, § 3 

Berkshire Woolen Co. V. Proctor, 7 Cush. 417 .... 139,191,225,285 
Bernard v. Lalond, 8 Leg. News, 215 123, 203, 205 

Coggs v., 2 Ld. Raym. 909 182, 281 

Bernstein v. Sweeny, 33 N. Y. Super. 271 . . . 418, 431, App. XXX, § 3 
Berry, Kelsey v., 42 111. 469 221 

Shaw v., 31 Me. 478 185 

Bethell, Shelley v., 12 Q. B. D. 11 325 

Bevan v. Waters, 3 C. & P. 520 252 

Bevis V. Baltimore & O. R. R., 26 Mo. App. 19 383, 388 

Binns v. Pigot, 9 C. & P. 208 252 

Birch, Dixon v., L. R. 8 Ex. 135 18 

Woodward v., 4 Bush, 510 162 

Bircher, Stanley v., 78 Mo. 245 282, 284 

Bird V. Bird, 1 And. 29 , . Ill, 124 

V. Everard, 4 N. Y. Misc. 104 333 

Bimey v. Wheaton, 2 How. Pr. N. S. 619 . . 249, 264, App. XXX, § 11 

Black V. Brennan, 5 Dana, 310 261, 277 

Block V. Sherry, 43 N. Y. Misc. 342 16, 172, 301, 302 

Sundmacher v., 39 111. App. 553 447, App. XI, § 5 

Blum V. Southern P. P. Co., 1 FUp. 500 . . 341, 342, 383, 386, 387, 388, 391 

Blythan v. Rescorla, 1 Kulp, 351 App. XXXVI, § 10 

Board of Police, Peo. v., 36 N. Y. Misc. 89 46 

Bodwell V. Bragg, 29 la. 232 215 

Bohler v. Owens, 60 Ga. 185 224 

[ 537 ] 



Table of Cases Cited, 

[EEPERENCES ABE TO SECTIONS.] 

Bonner v. Welbom, 7 Ga. 296 14, 48, 291 

Bonney, Cutler v., 30 Mich. 259 186, 189 

Boone, Jordan v., 5 Rich. L. 528 190 

Booth, PuUman P. C. Co. v., 28 S. W. 719 .. . 343, 346 ,364, 401, 402 

Berwick, ThrefaU v., L. R. 10 Q. B. 210 261 

Boston V. Schaffer, 9 Pick. 415 326 

Boston & A. R. R., Whicher v., 176 Mass. 275. . 341, 381, 384, 391, 392 

Boston & M. R. R., Bradford v., 160 Mass. 392 89 

Boston Music Hall, Currier v. 135 Mass. 414 322 

Bourgoin v. Hogan, 15 L. Can. R. 424 134 

Bournes, Swan v., 47 la. 501 260 

Bow, Com. v., 177 Mass. 347 325 

Bowell V. DeWald, 2 Ind. App. 303 190, 226 

Bowlin V. Lyon, 67 la. 536 325 

Bradford v. Boston & M. R. R., 160 Mass. 392 89 

Bradley Livery Co. v. Snook, 66 N. J. L. 654 155 

Bradner v. Mullen, 27 N. Y. Misc. 479 ... 148, 423, App. XXX, § 4 

Bragg, Bodwell v., 29 la. 232 215 

Bramstead, Rosse v., 2 Roll. 438 276 

Brand v. Glasse, F. Moore, 158 153 

Brandon, Clifford v. 2 Camp. 358 36,313, 320 

Brandt, Browne v., 1902, 1 K. B. 696 91 

Braun v. Webb, 32 N. Y. Misc. 243 364 

Bremer v. Pleiss, 121 Wis. 61 164, 165 

Brennan, Black v., 5 Dana, 310 261, 277 

McCourt v., 11 Pa. Co. Ct. 645 . ■ App. XXXVI, § 10 

Breslin, Friedman v., 169 N. Y. 574 425, App. XXX, § 3 

Briggs V. Todd, 28 N. Y. Misc. 208 430, 431, App. XXX, § 3 

Brill, Cincinnati v., 7 Oh. N. P. 534 318 

Broadwood v. Granara, 10 Ex. 417 68, 256, 261, 262 

Brooks V. Harrison, 41 Conn. 184 279, App. VI, § 3 

Brown, McKay v., 5 Can. L. J. 91 18, 20 

Markham v., 8 N. H. 523 61, 85, 87, 88, 92, 94 

Mateer v., 1 Cal. 221 152, 185 

Browne v. Brandt, 1902, 1 K. B. 696 . . . . 91 

Brown Hotel Co. v. Burckhardt, 13 Col. App. 59 . . 215, 232, 233, 430 

Brown Shoe Co. v. Hunt, 103 la. 586 265, App. XIII, § 1 

Bruce, Prescott v., 2 Cinn. 58 431 

Brunswick, Duke of, Gregory v., 1 C. & K. 24 320 

Buck V. Webb, 58 Hun, 185 364 

Buckle V. Probasco, 58 Mo. App. 49 144 

Bucky, Cunningham v., 42 W. Va. 671 185, 224, 227, 228 

Buddenburg v. Benner, 1 Hilt. 84 224, 296 

Buffalo Park, Fox v., 21 App. Div. 321 322 

Bullock V. Adair, 63 111. App. 30 16 

Bunn V. Johnson, 77 Mo. App. 596 203 

[538] 



Table of Cases Cited. 

[eefbbbnces are to sections.] 

Burbank v. Chapin, 140 Mass. 123 ... . 412, 416, 418, App. XIX, § 13 
Burckhardt, Brown Hotel Co. v., 13 Col. App. 59 . . 215, 232, 233, 430 

Burgess v. Clements, 4 M. & S. 306 150, 223 

Burghall, Bellis v., 2 Esp. 722 325 

Burkholder, Chase v., 18 Pa. 48 248 

Burnham v. Young, 72 Me. 273 416, App. XVII, § 2 

Burns, Clark v., 118 Mass. 275 37 

Burrows, Treiber v., 27 Md. 130 148, 190, 191, 223, 430, App. XVIII, § 3 

Burton v. Scherpf, 1 All. 133 315, 316 

Bush, Orchard v., 1898, 2 Q. B. 284 63, 131, 135, 136 

Butcher v. Hyde, 10 N. Y. Misc. 275 322 

Butler V. Quilter, 17 T. L. R. 159 183 

Butterfield, Clayton v., 10 Rich. L. 300 ....... . 249, 264 

Buttman v. Dennett, 9 N. Y. Misc. 462 304 

Byers, Hursh v., 29 Mo. 469 252 



c. 

Cady V. McDowell, 1 Lans. 484 298, App. XXX, § 11 

Cain, Pullman P. C. Co. v., 15 Tex. Kv. App. 503 365 

Caldwell v. Tutt, 10 Lea, 258 272 

Callard v. White, 1 Stark. 171 81 

Calye's Case, 8 Coke, 63 62, 154, 183, 211, 221 

Camp V. Wood, 76 N. Y. 92 322, 323 

Com. v., 4 B. Mon. 385 App. XV, § 4 

Campbell v. Pulhnan P. C. Co., 42 Fed. 484 374, 402 

Peo. v., 51 App. Div. 665 325 

Canadian Pao. R. R., Smith v., 34 N. S. 22 362 

Candy v. Spencer, 3 F. & F. 306 148, 225, 285 

Cardinal, Jalie v., 35 Wis. 118 139, 148, 185, 225 

Carhartv. Wainman, 114Ga. 632 142 

Carlisle v. Quattlebaum, 2 Bail. 452 252 

Cames v. McGuire, 18 Pa. Co. Ct. 306 ... . App. XXXVI, § 10 
Carpenter v. New York, N. H. & H. R. R., 124 N. Y. 63 . . . 387, 392 

V. Taylor, 1 Hilt. 193 15, 22, 291, 301 

Carr's Case, 1 Roll. Abr. 3 pi. 4 63 

Carter v. Hobbs, 12 Mich. 62 134 

Case V. Fogg, 46 Mo. 44 276 

Cashill V. Wright, 6 E. & B. 891 223, 227 

easier. Fitch v., 17 Hun, 126 134 

Cassedy v. Pulhnan P. C. Co., 17 So. 373 374 

Centlivre v. Ryder, 1 Edm. Sel. Cas. 273 203, 205 

Chadboum Furnace Co., Johnson v., 89 Mum. 310 16, 187 

Chamberlain v. Masterton, 26 Ala. 371 201, 223 

V. Pulhnan P. C. Co., 55 Mo. App. 474 391 

[539] 



Table of Cases Cited. 

[references are to sections.] 

Chamberlain v. West, 37 Minn. 54 416, App. XXI, § 2 

Chamney, Dawson v., 5 Q. B. 164 183 

Chandler v. Haas, 12 York Leg. Reo. 127 285 

Chapin, Burbank v., 140 Mass. 123 . . 412, 416, 418, App. XIX, | 13 
Chapman, Maltby v., 26 Md. 810 . . . 223, 431, 432, App. XVIII, § 4 

Chase v. Burkholder, 18 Pa. 48 248 

Chauncey v. State, 130 Ala. 71 448, App. I, § 6 

Cheesebrough V. Taylor, 12 Abb. Pr. 227 190 

Chesapeake & O. Ry., Connell v., 93 Va. 44 373 

Chesley, Wiser v., 53 Mo. 547 201, 205 

Chicago, M. & S. P. Ry., McKeon v., 94 Wis. 477 370 

Chicago, R. I. & P. Ry., Hillis v., 72 la. 228 383 

Childs' Unique Dairy Co., Harris v., 84 N. Y. S. 260 ... . 35, 306 

Churchill, Stott v., 15 N. Y. Misc. 80 162, 163, 170 

Cincimiati v. Brill, 7 Ohio N. P. 534 318 

Civil Rights Cases, 109 U. S. 3 App. LI, § 2 

Claflin V. Meyer, 75 N. Y. 260 295 

Claghom, Merritt v., 23 Vt. 177 186, 189 

Clair, Gastenhofer v., 10 Daly, 265' Ill, 122 

Clancy v. Barker, 131 Fed. 161 170, 173, 174 

V. Barker, 98 N. W. 440 172, 282 

Clark V. Ball, 62 Pac. 529 .234 

V. Burns, 118 Mass. 275 • 37 

Sasseen v., 37 Ga. 242 188, 190, 191, 223, 224 

Wintermute v., 5 Sandf. 242 14, 15, 231 

Clarke v. Searle, 1 Esp. 25 325 

Murray v., 2 Daly, 102 190,204,206, 231 

Clarkson, Harman v., 22 1). C. C. P. 291 169 

Clary v. Willey, 49 Vt. 55 13 

Classen v. Leopold, 2 Sweeny, 705 185, 224 

Clayton v. Butterfield, 10 Rich. L. 300 249, 264 

Clem, Adams v., 41 Ga. 65 234 

Clements, Burgess v., 4 M. & S. 306 150, 223 

Clerk, Gelley v., Cro. Jac. 188 232 

CMord V. Brandon, 2 Camp. 358 36, 313, 320 

Cloud, State v., 6 Ala. 628 41, 48 

Clute V. Wiggins, 14 Johns. 175 154 

Coates V. Aoheson, 23 Mo. App. 255 . . 277, 279, App. XXIII, §2 

Coats, Fuller v., 18 Ohio St. 343 211,213 

Cochrane v. Schryver, 12 Daly, 174 2.52 

Cockrell, Francisv.,L. R. 5Q. B. 501 322 

Coggs V. Bernard, 2 Ld. Raym. 909 182, 281 

Cohen v. Manuel, 91 Me. 274 154 

Colcord, Smith v., 115 Mass. 70 266, 298, App. XIX, § 18 

Coleman v. Foster, 1 H. & N. 37 315 

Jencks v., 2 Sumn. 221 97 

[540] 



Table of Cases Cited. 

[BEFERBNCBS ABE TO SECTIONS.] 

Coleman, Purvis v., 21 N. Y. Ill 420, App. XXX, § 3 

Collins, Rex v.. Palmer, 367,- 373 41, 52, 61, 70, 71, 282 

Collister v. Hayman, 71 App. Div. 316 315, 317 

Colton, Com. v., 8 Gray, 488 325 

Com. V. Bow, 177 Mass. 347 325 

V. Camp, 4 B. Mon. 386 App. XV, § 4 

V. Colton, 8 Gray, 488 325 

V. Cuncannon, 3 Brewst. 344 14, 32, 291 

V. Dennis, 1 Pa. Co. Ct. 278 443, App. XXXVI, § 7 

V. Gee, 6 Cush. 174 325 

V. Gough, 3 Kulp, 148 441, App. XXXVI, § 7 

V. Keathley, 82 S. W. 232 48 

V. Keeler, 3 Pa. Dist. 158 325 

V. Mitchell, 2 Pars. 431 61, 70, 82, 83, 84, 85 

V. Morton, 6 Luz. Leg. Reg. 207 442, 450, 451, 452, App. XXXVI, §§ 7, 8 

V. Muir, 38 W. N. C. 328 41 

V. Powell, 10 Phila. 180 318 

V. Reifsnyder, 14 Pa. Co. Ct. 353 325 

V. Shortridge, 3 J. J. Marsh. 638 22, 242, App. XV, § 4 

V. Wetherbee, 101 Mass. 214 17, 66 

Jackson v., 7 Bush, 99 App. XV, § 4 

Compton, Pendergast v., 8 C. & P. 464 56 

Conklin v. Prospect Park Hotel Co., 1 N. Y. S. 406 71 

Connelly. Chesapeake &0. Ry., 93 Va. 44 373 

Cook V. Kane, 13 Or. 482 261, 262 

Cox v., 14 All. 165 95, 137 

Grinnell v., 3 Hill, 485 232, 252, 270, 272 

Seymour v. 53 Barb. 451 234 

Cooney v. Pullman P. C. Co., 121 Ala. 368 383, 389 

Copeland, Nash v., 4 N. S. W. W. N. 41 364 

Corey, Levy v , 1 City Ct. R. Supp. 57 : 103, 171 

Cornell v. Huber, 102 N. Y. App. Div. 293 70 

Corson, Scheffer v., 5 S. D. 233 185, 204 

Cosgrove, Scarbrough v., 1905, 2 K. B. 805 297, 332 

Coskery v. Nagle, 83 Ga. 696 142, 226 

Cotton, Lane v., 12 Mod. 472 12, 52, 182 

Cottrell, Myers v., 5 Biss. 465 . . . 150, 204, 415, 416, App. XX, § 2 
County H. & W. Co., Strauss v., 12 Q. B. D. 27 . . 89, 123, 143, 203 

Courtney, Quinton v., 1 Hayw. 40 190 

Covington v. Newberger, 99 N. C. 523 262 

Cox V. Cook, 14 All. 165 95, 137 

Gordon v., 7 C. & P. 172' 275 

Coykendall v. Eaton, 55 Barb. 1«8 133, 204, 205, 285 

Crabtree v. Griffith, 22 Up. Can. Q. B. 573 272 

Crapo V. Rockwell, 94 N. Y. S. 1122 139, 181 

Crawley, Turrill v., 13 Q. B. 197 261 

[541] 



Table of Cases Cited. 

[references are to sections.] 

Crocker, Neale v., 8 U. C. C. P. 224 132, 252 

Cromwell v. Stephens, 2 Daly, 16 16, 16, 22 

Cross V. Andrews, Cro. Eliz. 622 112 

V. Wilkins, 43 N. H. 332 241, 298, App. XXVII, § 2 

Watson v., 2 Duv. 147 64, 112, 262, 253 

Crossman, Olsen v., 31 Minn. 222 . . . . 188, 413, 418, App. XXI, § 2 

Crouse, McManigle v., 1 Walker, 43 266, App. XXXVI, § 3 

Crown Point, Town of, v. Warner, 3 Hill, 160 22 

Cruikshanks, Rubenstein v., 54 Mich. 199 223, 226 

Crump, Jeffords v., 2 Phila. 500 138, 201, 204 

Cuncannon, Com. v., 3 Brewst. 344 14, 32, 291 

Cunningham v. Bucky, 42 W. Va. 671 185, 224, 227, 228 

Curlander v. Pulhnan P. C. Co., 28 Chic. Leg. N. 68 . . . . 348, 377 

Curran v. Olson, 88 Minn. 307 171, 172 

Currier v. Boston Music Hall, 136 Mass. 414 322 

Ciu-tis V. Dinneen, 4 Dak. 245 175 

V. Murphy, 63 Wis. 4 62, 136, 144 

V. State, 5 Ohio, 324 17 

Cutler V. Bonney, 30 Mich. 269 186, 189 



D. 

Dalby, Dixon v., 11 U. C. Q. B. 79 252 

Dale V. Gibson, 1 Roll. Abr. 3, pi. 3 153, 154 

Daly, Purcell v., 19 Abb. N. C. 301 313, 314, 315, 316, 317 

Danforth v. Pratt, 42 Me. 60 252, 270 

Dansey v. Richardson, 3 E. & B. 143 292, 293, 294 

Dargan v. Pullman P. C. Co., 2 Wills. § 691 341, 387 

Davenport, Alvord v., 43 Vt. 30 261, 269 

Davis V. Gay, 141 Mass. 531 16, 34 

Hutchinson v., 58 111. App. 358 441, 442, 449, 451, App. XI, §§ 6, 6 

Davys v. Douglas, 4 H. & N. 180 325 

Dawley v. Wagner P. C. Co., 169 Mass. 315 . . . 342, 381, 385, 391 

Dawson v. Chamney, 5 Q. B. 164 183 

Day v. Bather, 2 H. & C. 14 183, 232, 233 

V. Simpson, 18 C. B. N. S. 680 311 

Dunbier v., 12 Neb. 596 185, 188, 224, 227, 228, 413, App. XXV, § 2 

Dearlove, Smith v., 6 C. B. 132 252 

Dennett, Buttman v., 9 N. Y. Misc. 462 304 

Dennis, Com. v., 1 Pa. Co. Ct. 278 443, App. XXXVl, § 7 

Depierris, George v., 17 N. Y. Misc. 400 204, 205, 206 

Dessauer, Baker v., 49 Ind. 28 186, 188 

De Wald, Bowell v., 2 Ind. App. 303 190, 226 

Dibdin v. Swan, 1 Esp. 28 319 

Dickerson v. Rogers, 4 Humph. 179 ....... 15, 19, 20, 48, 163 

[542] 



Table of Cases Cited. 

[EEPERBNCES ABE TO SECTIONS.] 

Dickinson v. Winchester, 4 Cush. 114 142, 285 

Dickson v. Waldron, 135 Ind. 507 321 

Diehl, Woodruff S. & P. C. Co. v., 84 Ind. 474 . . 341, 342, 381, 387, 388 

Diers, Society for Reformation v., 10 Abb. Pr. N. S. 216 311 

DiUon V. Treverton, 16 Pa. Co. Ct. 89 App. XXXVI, § 10 

Dingus, Smith v., 12 Pa. Co. Ct. 299 App. XXXVI, § iQ 

Dinneen, Curtis v., 4 Dak. 245 175 

Dion, Fogarty v., 6 Quebec L. R. 163 262 

District of Columbia v. Saville, 1 McAr. 581 318 

Dixon V. Birch, L. R. 8 Ex. 135 18 

V. Dalby, 11 Up. Can. Q. B. 79 252 

Lane v., 3 C. B. 776 167 

Doe V. Laming, 4 Camp. 73 15 

Domestic S. M. Co. v. Watters, 50 Ga. 573 263 

Donovan, Hutchinson v., 76 Mo. App. 391 201 

Doorman v. Jenkins, 2 A. & E. 256 205 

Dorian, Fowler v., 24 Barb. 384 223, 226 

Dougherty, McCarty v., 16 Pa. Co. Ct. 86 . . . . App. XXXVI, § 10 

Douglas, Davys v., 4 H. & N. 180 325 

Downey, Baehr v., 133 Mich. 163 190, 234, 235 

Taylor v., 104 Mich. 532 201, 202, 252 

Doyle V. Walker, 26 Up. Can. Q. B. 502 104, 167, 244 

Drew V. Peer, 93 Pa. 234 . . 316 

Drey, Eden v., 17 111. App. 102 142, 190, 191, 228 

Drope V. Thaire, Latch, 126 14 

Duff, McGowan v., 14 Daly, 315 316 

Duluth, City of v. Marsh, 71 Minn. 248 325 

Dumas, Bancroft v., 21 Vt. 456 46 

Dunbier v. Day, 12 Neb. 596 185, 188, 224, 227, 228, 413, App. XXV, § 2 

Dunlap v. Thome, 1 Rich. L. 213 252 

Dunn V. Agricultural Society, 46 Oh. S. 93 322 

v. Bean, Que. R. 11 Sup. Ct. 538 15, 301, 303 

Dunning v. Jacobs, 15 N. Y. Misc. 85 322 

Dupr6, Mami B. C. Co. v., 54 Fed. 646 346, 367, 402 

Duval V. Pullman P. C. Co^, 62 Fed. 265 365 

DwineUe v. New York C. & H. R. R. R., 120 N. Y. 17 375 

Lima v., 7 Alb. L. J. 44 139, 413, 417, App. XXX, § 3 



E. 

Earle, Gildea v., 2 City Ct. R. 122 276, 277 

Wilkins v., 44 N. Y. 172 191, 425, App. XXX, § 3 

Eaton, Coykendall, v. 55 Barb. 188 133, 204, 205, 285 

Eden v. Drey, 17 111. App. 102 142, 190, 191, 228 

Fden Musee, New York v., 102 N. Y. 593 325 

[543] 



Table of Cases Cited, 
[references are to sections.] 

Edgerton, McDonald v., 5 Barb. 560 131, 148, 232 

Edmundson v. Pullman P. C. Co., 92 Fed. 824 363 

Edwards, Jaquet v., 1 Jam. 4 . . 13, 139 

Efron V. Wagner P. C. Co., 59 Mo. App. 641 385, 391 

Ehrman, Pullman's P. C. Co! v., 65 Miss. 383 369 

Eichold, Laird v., 10 Ind. 212 186 

Elcox V. Hill, 98 U. S. 218 223, 416, App. XI, | 2 

ElUott V. Martin, 105 Mich. 506 252 

Emerson, Taxing District v., 4 Lea, 312 325 

Engard, Leiss v., 8 Pa. Dist. 608 App. XXXVI, § 10 

Engle, State v., 156 Ind. 339 441, App.XII, § 2 

Epps V. Hinds, 27 Miss. 657 133, 148, 285 

Ernst V. R. R., 35 N. Y. 9 295 

Everard, Bird v., 4 N. Y. Misc. 104 333 

Ewart V. Stark, 8 Rich. L. 423 252 



Fagan, Russell v., 7 Houst. 389 132, 185 

Falls R. & M. Co. v. Pullman P. C. Co., 6 Ohio Dec. 85. . 341, 381, 388 

Famworth v. Packard, 1 Holt N. P. 209 150 

Faucett v. Nichols, 4 Thomp. & C. 597 414, App. XXX, § 1 

V. Nichols, 64 N. Y. 377 416, App. XXX, § 1 

Fauntleroy, GUes v., 13 Md. 126 191, 234 

Fay V. Pacific Improvement Co., 93 Cal. 253 14, 19, 139, 148, 189, App. IV, §8 

Federal Coffee Palace, Miller v., 15 Vict. L. R. 30 22, 183 

Fell V. Knight, 8 M. <fc W. 269 69, 167, 168, 244 

Fethers, Mowers v., 61 N. Y. 34 151 

Fielding, Pullman's P. C. Co. v., 62 111. App. 577 362 

Filipowski v. Merryweather, 2 F. & F. 285 224 

Fish, Hallenbake v., 8 Wend. 547 282 

Fisher v. Kelsey, 121 U. S. 383 150, 415, App. XXIII, § 4 

Fitch V. easier, 17 Hun, 126 134 

Flannigan, Singer Mfg. Co. v., 7 Pa. Co. Ct. 45 . . 261, App. XXXVI, § 3 

Fletcher, State v., 5 N. H. 257 42, 48 

Fhnt, Parker v., 12 Mod. 254 14, 15, 169, 291 

Florence, Mulliner v., 3 Q. E. D. 484 244, 255, 275, 276 

Sandys v., 47 L. J. C. P. 598 163, 170 

Florida v. Pullman P. C. Co., 37 Mo. App. 598 393 

Fogarty v. Dion, 6 Quebec L. R. 163 262 

Fogg, Case v., 46 Mo. 44 276 

Forbes, Rex v., 1 Cr. & D. 157 320 

Forster v. Taylor, 3 Camp. 49 249 

Fosset, Mosley v., 1 Roll. Abr. 3 153 

Foster, Coleman v., 1 H. & N. 37 315 

[544] 



Table of Cases Cited. 

[KErERENCES ARE TO SECTIONS.] 

Fowler v. Dorlon, 24 Barb. 384 223, 226 

V. Holmes, 3 N. Y. Supp. 816 321 

Fox V. Buffalo Park, 21 N. Y. App. Div. 321 322 

V. McGregor, 11 Barb. 41 276, 277 

Francis v. Cockrell, L. R. 5 Q. B. 501 322 

Franklin, Howth v., 20 Tex. 798 13, 186 

Fredericks v. Howie, 1 H. & C. 381 325 

V. Payne, 1 H. & C. 584 325 

Freeman, Adams v., 12 Johns. 408 ... 61 

French, Bendetson v., 46 N. Y. 266 . . . . 426, 427, App. XXX, § 3 

French Opera Assoc, State v., 107 La. 284 . 325 

Freudenstein, Pullman P. C. Co. v., 3 Col. App. 540 . . 341, 342, 381, 393 

Friedman v. Breslin, 169 N. Y. 574 425, App. XXX, § 3 

Fuller V. Coats, 18 Ohio St. 343 211, 213 



Galloway, Meacham v., 102 Tenn. 415 139, 140, 201, 431 

Gandy v. Oellers, 39 W. N. C. 438 325 

Garden v. Scott, 1 Kulp, 196 App. XXXVI, § 10 

Gardner v. Hart, 44 W. R. 527 81 

Pullman P. C. Co. v., 3 Penny. 84 ... . 341, 342, 381, 387, 392 

Garignes, WiUiams v., 30 La. Ann. 1094 . . ... ... 33 

Gartenstein's License, 15 Pa. Co. Ct. 612 . . . . . . . 311 

Gast V. Gooding, 1 Ohio Dec. 315 . . .... 185. 188 

Gastenhofer v. Clair, 10 Daly, 265 . . Ill, 122 

Gavin, Pullman P. C. Co. v., 93 Tenn. 53 341, 342, 382, 387, 388, 401 

Gay, Davis v., 141 Mass. 531 15, 34 

Gaylord, Pullman P. C. Co. v., 9 Ky L. Rep. 58 . . . 342, 383, 387 

Gee, Com. v., 6 Cush. 174 325 

Geiger, Owens v., 2 Mo. 39 222 

Geiss, Sneider v., 1 Yeates, 34 . . . 157 

GeUey v. Clerk, Cro. Jac. 188 232 

George v. Depierris, 17 N. Y. Misc. 400 204, 205, 206 

Gerard, Maxwell v., 84 Hun, 537 . . 534 

Waters v., 94 N. Y. S. 702 234 

Gibson, Dale v., 1 Roll. Abr. 3 153, 154 

Gilbert v. Hoffman 66 la. 205 171 

Gildea v. Earle, 2n,City Ct. R. 122 276, 277 

Gile V. Libby, 36 Barb. 70 185, 412, 432, App. XXX, § 3 

Giles V. Fauntleroy, 13 Md. 126 191, 234 

Gilkey, Porter v., 57 Mo. 235 417, 421, App. XXIII, § 3 

Gillman v. State, 55 Ala. 248 325 

Glascoe, Thomas v., 13 Pa. Co. Ct. 167 App. XXXVI, § 10 

Glasse, Brand v., Moore, 158 153 

35 [ 545 ] 



TABL33 OF Cases Cited, 
[beferbnces are to sections.] 

Gleason, Wear v., 52 Ark. 364 205, 206,- 235 

Glenn v. Jackson, 93 Ala. 342 231 

Goodenow v. Travis, 3 Johns. 427 92 

Gooding, Gast v., 1 Ohio Dec. 315 185, 188 

Goodyear v. Klemm, 5 Austral. Jur. 136 261 

Gordon v. Cox, 7 C. & P. 172 275 

Gough, Com. v., 3 Kulp, 148 441, App. XXXVI, § 7 

Granara, Broadwood v., 10 Ex. 417 68, 256, 261, 262 

Grand Hotel Co., Medawar v., 1891, 2 Q. B. 11 . . 223, 234, 245, 414 

Grand Int. Hotel Co., O'Connor v., 1898, 2 Ir. 92 423 

Grannan v. Westchester Racing Assoc, 16 N. Y. App. Div. 8 . . 41 
Gray, Healey v. 68 Me. 489 121, 132 

Robins v., [1895], 2 Q. B. 501 68, 256, 261, 262 

Gregory v. Duke of Brunswick, 1 C. & K. 24 320 

Green v. Kousins, 3 Pa. Dist. 302 325 

Greeneburg v. Western Turf Assoc, 140 Cal. 357 41 

Grenaugh, Yorke v., 2 Ld. Raym. 866 132 

Griffin, Westbrooke v., 2 Br. & G. 254 276 

Griffith, Crabtree v., 22 U. C. Q. B. 573 272 

Natbroke v., Moore, 876 232, 276 

Grimstone v. Innkeeper, Hetley, 49 ... 14 

Grinnell v. Cook, 3 Hill, 485 232, 252, 270, 272 

Groesbeck, Missouri Pae. Ry. v., 24 S. W. 702 402 

Grunewald, Stringfellow v., 109 La. 187 169 

Guest, Shafer v., 6 Robt. 264 298, App. XXX, § 11 

Gump V. Showalter, 43 Pa. 507 265, App. XXXVI, § 3 



H, 

Haas, Chandler v., 12 York Leg. Rec 127 285 

Hadley v. Upshaw, 27 Tex. 547 223 

Haff V. Adams, 59 Pac 111 138, 139, 140, 201 

Hager, Spring v., 145 Mass. 186 223, 224 

Hall V. Pike, 100 Mass. 495 138, 139 

Pope v., 14 La. Aim. 324 . 191 

Profflet v., 14 La. Ann. 524 191 

Pullman's P. C. Co. v., 106 Ga. 765 341, 342, 384, 385 

Hallenbake v. Fish, 8 Wend. 547 282 

HaUiday, Nichols v., 27 Wis. 406 298, App. XLVIII, § 3 

Halpin, Wilson v., 30 How. Pr. 124 225 

Hamlin v. Walters, 3 Col. App. 519 273 

Hammerstein, Pattison v., 17 N. Y. Misc. 375 324 

Hammond, Hawthorne v., 1 C. & K. 404 61, 66, 67 

Hampton v. Pullman P. C. Co., 42 Mo. App. 134 383, 387 

Hancock v. Rand, 94 N. Y. 1 138, 140 

[546] 



Table of Cases Cited. 

[references are to sections.] 

Handy, Illinois C. R. R. v., 63 Miss. 609 341, 383, 388, 394 

Rex v., 6 T. R. 286 325 

Hardy, St. Louis, A. & T. Ry. v., 55 Ark. 134 352 

Hare v. Henderson, 43 Up. Can. Q. B. 571 176 

Harman v. Clarkson, 22 Up. Can. C. P. 291 169 

Haroldson, Whitemore v., 2 Lea, 312 231, 232, 233 

Harris v. Childs' U. D. Co., 84 N. Y. S. 260 35, 306 

Harrison, Barber v., 6 City Hall Rec. 89 201 

Brooks v., 41 Conn. 184 279, App. VI, § 3 

Hart V. Washington Park, 157 111. 9 322 

Gardner v., 44 W. R. 527 81 

Hartman, Hulbert v., 79 111. App. 289 190, 223, 224 

Harvey, Horner v., 3 N. Mex. 197 138, 140 

Pullman's P. C. Co. v., 101 Ga. 733 .... 383, 384, 391, 393 
Hatch, Pullman P. C. Co. v., 30 Tex. Ov. App. 303 . 381, 387, 392 
Havre de Grace Bank, Towson v., 6 H. & J. 47 . . . 186, 283, 285 
Hawk V. Rock, 14 Pa. Co. Ct. 490 . App. XXXVI, § 10 

Hawley v. Smith, 25 Wend. 642 .. . 153 

Hawthorne v. Hammond, 1 C. & K. 404 . . . . 61, 66, 67 

Hayes v. Opera House Co., 139 Pa. 636. . . . . . 325 

Hayman, CoUister v., 71 App. Div. 316 315, 317 

Haynes, Becker v., 29 Fed. 441 145, 285, 416, 417 

Jacobi v., 14 N. Y. Misc. 15 221 

Hays v. Turner, 23 la. 214 231, 232, 233 

Hayward v. Merrill, 9^ 111. 349 164 

Head, Stewart v., 70 Ga. 449 205 

Healey v. Gray, 68 Me. 489 121, 132 

Heenrich v. Pullman P. C. Co., 20 Fed. 100 374 

Henderson, Hare v., 43 U. C. Q. B. 571 176 

Herbert v. Markwell, W. N. 1882, 112 224 

Herrick v. Wixom, 121 Mich. 384 . 321 

Hess, Metcalf v., 14 lU. 129 186 

Hickman v. Thomas, 16 Ala. 666 252 

Hildebrand, Kisten v., 9 B. Mon. 74 13, 14, 17, 32, 61, 70, 201, 283, 291 
Hill V. Owen, 5 Blackf. 323 ... . 186 

Elcox v., 98 U. S. 218 223, 416, App. XI, § 2 

Johnson v., 3 Stark, 172 261, 262 

Hillis V. Chicago, R. I. & P. Ry., 72 la. 228 383 

Hilton V. Adams, 71 Me. 19 162 

Mcllvane v., 7 Hun, 594 264, 298, App. XXX, § 11 

Hinds, Epps v., 27 Miss. 657 133, 148, 285 

Hiscock, Trimmer v., 27 Hun, 31 48 

Hobbs, Carter v., 12 Mich. 52 . . 134 

Hobson, Kennard v., 1 Houst. 36 247 

Hodo V. Benecke, 11 Mo. App. 393 ... . 279, App. XXIII, §§ 1, 2 

Hoffman v. Roessle, 39 N. Y. Misc. 787 231 

[ 547 ] 



' Table of Cases Cited. 

[references are to sections.] 

Hoffman Gilbert v., 66 la. 205 171 

Hoffman House, Wies v., 28 N. Y. Misc. 225 188 

Hogan, Bourgoin v., 15 L. Can. R. 424 134 

Holder v. Soulby, 8 C. B. N. S. 254 331 

Holland v. Pack, Peck, 151 114 

HoUenbeck, Manning v., 27 Wis. 202 261, 271 

Holman, White v., 44 Or. 180 41, 46, 291 

Holmes v. Moore, 17 L. C. R. 143 203, 205 

Fowler v., 3 N. Y. Supp. 816 321 

Holohan, Tulane Hotel Co. v., 112 Tenn. 214 . . . . 143, 203, 205 

Hook V. Singer Mfg. Co., 11 Natal L. R. 301 261, 262 

Horn, OeUers v., 3 Pa. Super. 537 325 

Homer v. Harvey, 3 N. Mex. 197 138, 140 

Horslow's Case, Y. B. 22 Hen. 6, 21, pi. 38 11, 221, 283 

Horton v. Terininal H. & A. Co., 89 S. W. 363 424 

Hotel Assoc, v. Walters, 23 Neb. 280 163 

Houser v. Tully, 62 Pa. 92 144, 147, 222 

Houston, E. & W. T. Ry. v. Perkins, 21 Tex. Civ. App. 508 . 373 

Howard, Lawrence v., 1 Utah, 142 138, 204, 231 

Needles v., 1 E. D. Smith, 54 146, 285 

Thickstun v., 8 Blaekf. 535 . . 186 

Van Wyck v., 12 How. Pr. 147 ... . 191, 225, App. XXX, § 3 

Howe Machine Co. v. Pease, 49 Vt. 477 186, 190 

Howell v. Jackson, 6 C. & P. 723 102 

Howie, Fredericks v., 1 H. & C. 381 325 

Howth V. Franklin, 20 Tex. 798 ... 13, 186 

Huber, Cornell v., 102 N. Y. App. Div. 293 . 70 

Huffman v. Walterhouse, 19 Ont. 186 272 

Hughes V. Jones, 8 Kulp, 242 App. XXXVI, § 10 

V. Pulhnan's P. C. Co., 74 Fed. 499 363, 402 

Hulbert v. Hartman, 79 111. App. 289 190, 223, 224 

Hulett V. Swift, 33 N. Y. 571 185, 189 

Humphreys, Taylor v., 30 L. J. M. C. 242 63, 125 

Hunt, Brown Shoe Co. v., 103 la. 586 265, App. XIII, § 1 

Huntly, Marchioness of, v. Bedford Hotel Co., 56 J. P. 53 . . 414, 418 

Hunter, Pullman P. C. Co. v., 107 Ky. 519 383, 387 

Hursh v. Byers, 29 Mo. 469 252 

Husband, Peo. v., 36 Mich. 306 276 

Hutchinson v. Davis, 58 111. App. 368 441, 442, 449, 451 

V. Donovan, 76 Mo. App. 391 201 

Hyatt v. Taylor, 42 N. Y. 258 432, App. XXX, § 3 

Hyde, Butcher v., 10 N. Y. Misc. 275 322 



[548] 



Table of Cases Cited, 
[references are to sections.] 

I. 

Illinois, Munn v., 94 U. S. 113 51 

Illinois C. R. R. v. Handy, 63 Miss. 609 341, 383, 388, 394 

Ingallsbee v. Wood, 33 N. Y. 577 132, 204, 205, 295 

Innes, Murphy v., 11 So. Anstr. 56 63 

Innkeeper, Grimstone v., Hetley, 49 14 

Iroquois H. & A. Co., Shearman v., 42 N. Y. Misc. 217 34, App. XXX, § 11 

Irvine, Nurdlinger v., 18 W. N. C. 65 325 

Ivens, Rex v., 7 C. & P. 213 61, 66, 70, 92, 95 

Jacko V. State, 22 Ala. 73 311, 325 

Jackson v. Com., 7 Cush. 99 App. XV, §4 

Glenn v., 93 Ala. 342 231 

Howell v., 6 C. & P. 723 102 

Jones v., 29 L. T. 399 225 

Jacobi V. Haynes, 14 N. Y. Misc. 15 221 

Jacobs V. Latour, 5 Bing. 130 274 

Dunning v., 15 N. Y. Misc. 85 322 



J. 

Jalie V. Cardinal, 35 Wis. 118 139, 148, 185, 225 

Jaquet v. Edwards, 1 Jam. 4 . . 13, 139 

Jaquith v. American Exp. Co., 60 N. H. 61 268, 298 

Jefferson Hotel Co. v. Warren, 128 Fed. 565 223 

Jeffords v. Crump, 2 Phila. 500 138, 201, 204 

Jencks v. Coleman, 2 Smnn. 221 97 

Jenkins v. Bacon, 111 Mass. 373 206 

V. Louisville & N. R. R., 104 Ky. 673 372 

Doorman v., 2 A. & E. 256 205 

Johnson v. Chadboum Furnace Co., 89 Minn. 310 16, 187 

V. HiU, 3 Stark. 172 261, 262 

V. Midland Ry., 4 Ex. 367 65 

V. Reynolds, 3 Kan. 257 139, 201, 204 

V. Richardson, 17 111. 302 186, 188, 190, 214, 226 

V. Willcox, 135 Pa. 217 323 

Bunn v., 77 Mo. App. 596 203 

State v., 65 Me. 362 48 

Jones v. Jackson, 29 L. T. 399 225 

V. MorriU, 52 Barb. 623 ... . 261, 265, 298, App. XXX, § 11 

v. Osbom, 2 Chit. 484 22 

v. Thurloe, 8 Mod. 172 254, 270 

V. Tyler, 1 A. & E. 522 154 

Hughes v., 8 Kulp, 242 App. XXXVI, § 10 

Lord v., 24 Me. 439 42 

Peo. v., 54 Barb. 311 15, 22, 44 

[549] 



Table of Cases Cited. 

[eefekences abb to sections.] 

Jones, Washburn v., 14 Barb. 193 .' 162 

Jordan v. Boone, 5 Rich. L. 528 190 

Judah, Younger v.. Ill Mo. 303 56 

K. 

Kane, Cook v., 13 Or. 482 261, 262 

Kates V. Pullman's P. C. Co., 95 Ga. 810 .. . 383, 387, 391, 393, 394 

Katzenberger, Louisville, N. & G. S. R. R. v., 16 Lea, 380 390 

Kean, Louisville v., 18 B. Mon. 9 45, 46 

Keathley, Com. v., 82 S. W. 232 48 

Keefe, McGentry v., 8 Luz. Leg. Reg. 179 ... . App. XXXVl, § 10 
Keeler, Com. v., 3 Pa. Dist. 158 325 

Siegman v., 4 N. Y. Misc. 528 292, 295 

Kellogg V. Sweeney, 1 Lans. 397 191, 418, App. XXX, § 3 

Kelly V. New York Excise Comrs., 54 How. Pr. 327 15, 16 

Kelsey v. Berry, 42 111. 469 '. 221 

Fisher v., 121 U. S. 383 150, 415, App. XXIII, § 4 

Kennard v. Hobson, 1 Iloust. 36 ... 247 

Kennedy, Walker v., 20 Pa. Co. Ct. 433 App. XXXVI, § 10 

Kent V. Shuokard, 2 B. & Ad. 803 191 

Keyes, Smith v., 2 Th. & C. 650 139, 245 

King, Pec. v., 110 N. Y. 418 41 

Pullman's P. C. Co. v., 99 Fed. 380 365 

Ex parte, 102 Ala. 182 441, App. I, § 6 

Kingsley, State v., IO8M0. 135 . . . 441, 445, 446, 448, App. XXIII, § 5 

Kinsley v. Lake Shore R. R., 125 Mass. 54 394, 395 

Kinzel, Manzy v., 19 111. App. 571 164, 165 

Kirkman v. Shawcross, 6 T. R. 14 55 

Kisten v. Hildebrand, 9 B. Mon. 74 . . 13, 14, 17, 32, 61, 70, 201, 283, 291 

Kleber, Rowland v., 1 Pittsb. 68 312 

Klemm, Goodyear v., 5 Austral. Jur. 136 . . 261 

Knight, Fell v., 8 M. & W. 269 69, 167, 168, 244 

Kcelling, Tombler v., 60 Ark. 62 207, 333 

Kopper v. WilUs, 9 Daly, 460 113, 131 

Komv. Schedler, llDaly, 234 13 

Kousins, Green v., 3 Pa. Dist. 302 325 

Krohn v. Sweeney, 2 Daly, 200 16, 21, 432, App. XXX, § 3 

Krumbholz, McClure v., 9 Pa. Dist. 544 16, 42 



Labold v. Southern Hotel Co., 54 Mo. App. 49 ... . ... 144 

Lacy, Thompson v., 3 B. & Aid. 283 11, 15, 65, 252 

Ladjing, Montgomeiy v., 30 N. Y. Misc. 92 305, 306 

Laird v. Eiohold, 10 Ind. 212 186 

[550] 



Table op Cases Cited. 

[rkfebences are to sections.] 

Lake Shore & M. S. R. R., Kinsley v., 125 Mass. 54 ... . 394, 395 

Lalond, Bernard v., 8 Leg. News, 215 123, 203, 205 

Lambert v. Niklaas, 45 W. Va. 527 274 

Laming, Doe v., 4 Camp. 73 15 

Lamond v. Richard, 1897, 1 Q. B. 541 105, 252 

Landis, Pollock v., 36 la. 651 138, 139, 252, 278 

Lane v. Cotton, 12 Mod. 472 12, 52, 182 

V. Dixon, 3 C. B. 776 167 

Lanier v. Youngblood, 73 Ala. 587 20, 188, 215, 223, 224, 413, 417, 421, 

422, App. I, §§ 3, 4 
La SaUe R. & O. House v. McMaeters, 85 111. App. 677 . . 35, 304, 305 

Latour, Jacobs v., 5 Bing. 130 274 

Lawrence v. Howard, 1 Utah, 142 138, 204, 231 

V. Pulhnan's P. C. Co., 144 Mass. 1 344 

PuUraan P. C. Co. v., 74 Miss. 782 ... . 342, 343, 371, 374, 401 

Leadbitter, Wood v., 13 M. & W. 838 315 

Leathe, Oxford v., 165 Mass. 254 322 

Lee, Pullman P. C. Co. v., 49 III. App. 75 342, 344 

Lehndorif, Rahmel v., 142 Cal. 681 173 

Leiss V. Engard, 8 Pa. Dist. 608 App. XXXVI, § 10 

Leland, Ramaley v., 43 N. Y. 539 431, 432, App. XXX, § 3 

6 Rob. 358 224, App. XXX, § 3 

Stanton v., 4 E. D. Smith, 88 211, 212, 213, 214, 215 

Lemon v. Pulhnan P. C. Co., 52 Fed. 262 342, 344, 402 

Leo, Smith v., 92 Hun, 242 315, 316 

Leoncini v. Post, 13 N. Y. Supp. 825 295 

Leopold, Classen v., 2 Sweeney, 705 185, 224 

Levien v. Webb, 30 N. Y. Misc. 196 372 

Levy V. Corey, 1 City Ct. R. Supp. 57 103, 171 

Lewis V. Arnold, 4 C. & P. 354 318 

V. New York S. C. Co., 143 Mass. 267 386, 390, 392 

Shutt v., 5 Esp. 128 325 

Libby, Gile v., 36 Barb. 70 185, 412, 432, App. XXX, § 3 

Light V. Abel, 6 Allen (N. B.), 400 - .... 138 

LiUie, Nashville C. & S. L. R. R. v., 112 Tenn. 331 395 

Lima v. Dwinelle, 7 Alb. L. J. 44 . . . . 139, 413, 417, App. XXX, § 3 

Lipscomb, Norfolk & W. R. R. v., 90 Va. 137 402 

Long V. Arcade Hotel Co., 9 Ohio Dec. 372 . . 431, 432, App. XXXIII, § 3 

Long Beach Devel. Co., Moore v., 87 Cal. 483 . . . 139 

Lord V. Jones, 24 Me. 439 42 

Loughran, Watson v., 112 Ga. 837 223 

Louisville, City of, v. Kean, 18 B. Mon. 9 45, 46 

Louisville & N. R. R., Jenkins v., 104 Ky. 673 372 

Louisville, N. & G. S. R. R. v. Katzenberger, 16 Lea, 380 ... . 390 

Lowe, Pullman P. C. Co. v., 28 Neb. 239 341, 381 

Lowell L. & H. S. Ry., Thompson v., 170 Mass. 577 321 

[551] 



Table of Cases Cited. 

[references are to sections.] 

Lucia V. Omel, 46 App. Div. 200 137 

63 App. Div. 641 185 

Luckett, Toms v., 5 C. B. 23 . . . . .- 34 

Luellin, Rex. v., 12 Mod. 445 62, 93 

Lundie, State v., 47 La. Ann. 1596 325 

Lusk V. Belote, 22 Minn. 468 140, 188,. 201 

Lynar v. Mossup, 36 Up. Can. Q. B. 230 233 

Lyon V. Smith, 1 Morris (la.), 184 13, 19, 20 

Bowlin v., 67 la. 536 325 



M. 

McCarty v. Dougherty, 16 Pa. Co. Ct. 86 . . . App. XXXVI, § 10 

MeClain v. Williams, 11 S. D. 227 265, App. XL, § 1 

McClay v. Nash, 6 Ky. L. Rep. 298 225 

McClellan, Torrey v., 17 Tex. Civ. App. 371 265 

McClure v. Krumbholz, 9 Pa. Dist. 544 16, 42 

McCourt V. Brennan, 11 Pa. Co. Ct. 645 .. . . App. XXXVI, § 10 

McCracken, U. S. v., 3 Hughes, 544 . 258 

McCrea v. Marsh, 12 Gray, 211 315 

McCready, Smith v., 24 How. Pr. 62 298 

Stewart v., 24 How. Pr. 62 App. XXX, § 11 

McDaniels v. Robinson, 26 Vt. 316 132, 187, 188, 232 

28 Vt. 387 .... ^ 132,231,233 

McDonald v. Edgerton, 5 Barb. 560 131, 148, 232 

Pullman P. C. Co. v., 2 Tex. Civ. App. 322 365 

State v., 4 Harr. 555 44 

McDonough, MoGinley v., 27 W. N. C. 340 .. . App. XXXVI, § 10 
McDowell, Cady v., 1 Lans. 484 . . . 298, App. XXX, § 11 

McDuffie v. Portland & R. R. R., 54 N. H. 30 55, 56 

McElwaine v. Balmoral Hotel Co., Mont. L. R. 7 S. 0. 139 . . . 232 

McElwell, Cady v., 1 Lans. 484 .. . 298 

McGentey v. Keefe, 8 Luz. Leg. Reg. 179 .. . App. XXXVI, § 1 
McGinley v. McDonough, 27 W. N. C. 340 . . . . App. XXXVI, § 10 

McGinty, Smith v., 101 Pa. 402 App. XXXVI, § 10 

McGowan v. Duff, 14 Daly, 315 316 

McGraw, Peet v., 25 Wend. 653 283 

McGregor, Fox v., 11 Barb. 41 276, 277 

McGuire, Carnes v., 18 Pa. Co. Ct. 306 App. XXXVI, § 10 

McHugh V. Schlosser, 159 Pa. 480 102, 103 

Mcllvane v. Hilton, 7 Hun, 594 264, 298, App. XXX, § 11 

McKay v. Brown, 5 Can. L. J. 91 18, 20 

McKeon v. Chicago, M. & S. P. Ry., 94 Wis. 477 370 

McKeown, Rees v., 7 Ont. App. 521 13 

McLaohlan, Angus v., 23 Ch. D. 330 269, 273 

[552] 



Table of Cases Cited. 

[eepekences are to sections.] 

Maclurgan, Nott v., 20 W. N. N. S. W. 135 183, 189 

McMahon, WUlis v., 89 Cal. 156 14, 61 

McManigle v. Grouse, 1 Walker, 43 265, App. XXXVI, § 3 

M'Manus, Ex parte, 6 Austral. L. T. 12 139 

McMasters, La Salle R. & O. House v., 85 lU. App. 677 .. . 35, 304, 305 

McMurray v. Pullman's P. C. Co., 86 111. App. 619 381 

McNulty, Weeks v., 101 Term. 495 163, 170, 176 

Magee v. Pacific Imp. Co., 98 Cal. 678 138, 139 

Mahii, Bell v., 121 Pa. 225 311, 312 

Maloney v. Bacon, 33 Mo. App. 501 145 

Maltby v. Chapman, 25 Md. 310 . . . . 223, 431, 432, App. XVIII, § 4 
Mann B. C. Co. v. Dupr6, 54 Fed. 646 346, 367, 402 

Searles v., 45 Fed. 330 343, 345, 347, 377 

Manning v. HoUenbeck, 27 Wis. 202 261, 271 

V. Wells, 9 Humph. 746 32, 201, 291 

Manny, Piper v., 21 Wend. 282 .. 154 

Manuel, Cohen v., 91 Me. 274 154 

Manzy v. Kinzel, 19 111. App. 571 164, 165 

Markham v. Brown, 8 N. H. 523 61, 85, 87, 88, 92, 94 

Markwell, Herbert v., W. N. 1882, 112 224 

Marsh, Duluth v., 71 Minn. 248 325 

McCrea v., 12 Gray, 211 315 

Pullman P. C. Co. v., 24 Ind. App. 129 368 

Marshall, Murray v., 9 Col. 482 231, 234 

Martin, EUiott v., 105 Mich. 506 252 

Pulhnan's P. C. Co. v., 92 Ga. 161 381 

95 Ga. 314 382, 383 

Wilson v., 1 Den. 602 248 

Mason v. Thompson, 9 Pick. 280 21, 132, 185, 285 

Mastad v. Swedish Brethren, 83 Minn. 40 321 

Masterton, Chamberlain v., 26 Ala. 371 201, 223 

Mateer v. Brown, 1 Cal. 221 152, 185 

Matthews, Pullman's P. C. Co.v., 74 Tex. 654 382, 391 

State v., 2 D. & B. 424 13 

Maxwell v. Gerard, 84 Hun, 537 234 

Maxwell House Co., Rains v., 79 S. W. 114 . 431, 432, App. XLI, § 5 

Meacham v. GaUoway, 102 Tenn. 415 139, 140, 201, 431 

Mead, Windham v., 4 Leon. 96 153, 154 

Medawar v. Grand Hotel Co., 1891, 2 Q: B. 11 . . 223, 234, 245, 414 

Melenbacker, R. L. Polk & Co. v., 99 N. W. 867 139, 261 

Mellin, Ross v., 36 Minn. 421 121,138,139 

Mellor, Bennett v., 5 T. R. 273 Ill, 124, 131 

Merrill, Bayley v., 10 All. 360 267 

Hayward v., 94 111. 349 164 

Merritt v. Claghom, 23 Vt. 177 186, 189 

Merryweather, Filipowski v., 2 F. & F. 285 224 

[553] 



Table of Cases Cited. 

[HEPEREtfCES ARE TO SECTIONS.] 

Messenger v. Pennsylvania R. R., 8 Vr. 531 55 

Metcalf V. Hess, 14 111. 129 186 

Metzger v. Schnabel, 23 N. Y. Misc. 698 139, 140 

Meyer, Claflin v., 75 N. Y. 260 295 

Midland Ry., Johnson v., 4 Ex. 367 i 65 

Walker v., 55 L. T. 489 165 

Miles, West Chester & P. R. R. v., 55 Pa. 209 56 

Milford V. Wesley, 1 Wils. (Ind.) 119 214, 224 

Miller v. Federal Coffee Palace, 15 Vict. L. R. 30 22, 183 

V. Peeples, 60 Miss. 819 233 

Simon v., 7 La. Ann. 360 191 

Singer Mfg. Co. v., 52 Minn. 516 252, 261 

Milliken, Noble v., 74 Me. 225 429, App. XVII, § 3 

Mills V. Shirley, 110 Mass. 158 265, 298, App. XIX, § 18 

Whiting v., 7 U. C. Q. B. 450 70, 105, 139 

Minor v. Staples, 71 Me. 316 153, 207 

Misch V. O'Hara, 9 Daly, 361 265, 298, App. XXX, § 11 

Missouri Pac. Ry. v. Groesbeck, 24 S. W. 702 402 

Mitchell V. Woods, 16 L. T. 676 224 

Com. v., 2 Pars. 431 61, 70, 82, 83, 84, 85 

Monnot, Taylor v., 4 Duer, 116 22 

1 Abb. Pr. 325 191 

Montgomery v. Ladjing, 30 N. Y. Misc. 92 305, 306 

Moore v. Long B. D. Co., 87 Cal. 483 139 

Holmes v., 17 L. C. R. 143 203, 205 

Richmond & M. Ry. v., 94 Va. 493 322 

Williams v., 69 111. App. 618 142 

Morehead, Sneed v., 70 Miss. 690 163 

Morgan v. Ravey, 6 H. & N. 265 183, 282, 284 

Morrill, Jones v., 52 Barb. 623 261, 265, 298, App. XXX, §11 

Morris, Beedle v., Cro. Jac. 224 285 

Morrow v. Pullman P. C. Co., 98 Mo. App. 351 382, 387, 391 

Morse, Woodworth v., 18 La. Ann. 156 186 

Morton, Com. v., 6 Luz. Leg. Reg. 207 442, 450, 451, 452, App. XXXVI, 

§§7,8 

Moser, Overstreet v., 88 Mo. App. 72 131, 172 

Mosley v. Fosset, 1 Roll. Abr. 3, pi. 3 153 

Mosse V. Townsend, 1 Bulst, 207 276 

Mossup, Lynar, v. 36 Up. Can. Q. B. 230 233 

Mowers v. Fethers, 61 N. Y. 34 151 

Muir, Com. v., 38 W. N. C. 328 41 

Mullen, Bradner v., 27 N. Y. Misc. 479 . . . 148, 423, App. XXX, § 4 

MuUiner v. Florence, 3 Q. B. D. 484 244, 255, 275, 276 

Munn V. Illinois, 94 U. S. 113 51 

Murchison v.Sergent, 69 Ga. 206 224, 225, 413, 418, 432, App. IX, §7 

Murphy v. Innes, 11 So. Aust. 56 63 

[554] 



Table) of Cases Cited. 

[bBFBHENCES are to 9BCTI0Na.] 

Murphy, Curtis v., 63 Wis. 4 62, 136, 144 

Peo. v., 65 App. Div. 123 46 

5 Pai-k, 130 17, 42 

Murray v. Clarke, 2 Daly, 102 190, 204, 206, 231 

V. Marshall, 9 Col. 482 231, 234 

Myers v. Cottrill, 5 Bisa. 465 150, 204, 415, 416, App. XX, § 2 

Pabe v., 5 Oh. S. & C. P. Deo. 578 15 

Southwood v., 3 Bush, 681 14, 291 



N. 

Nagle, Coskery v., 83 Ga. 696 142, 226 

Nash V. Copeland, 4 N. S. W. W. N. 41 364 

McClay v., 6 Ky. L. Rep. 298 225 

Nashville C. & S. L. R. R. v. LilUe, 112 Tenn. 331 395 

Natbroke v. Griffith, F. Moore, 876 232 

National C. P. Assoc, Williams v., 102 N. W. 783 322 

Neal V. Wilcox, 4 Jones L. 146 153, 201 

Neale v. Crocker, 8 Up. Can. C. P. 224 132, 252 

Needles v. Howard, 1 E. D. Smith, 54 146, 285 

Nelson, Pullman P. C. Co. v., 22 Tex. Gv. App. 223 364 

Nevin v. Pullman P. C. Co., 106 III. 222 343, 344, 361, 364, 369, 376, 401 

Newberger, Covington v., 99 N. C. 523 262 

Newcomb v. Anderson, 11 Ont. 665 265, 298 

New Orleans v. North, 12 La. Ann. 205 311 

Newson v. Axon, 1 McCord, 509 188 

Newton v. Trigg, 1 Shower, 268 241 

New York v. Eden Musee, 102 N. Y. 593 325 

New York C. & H. R. R. R., Dwinelle v., 120 N. Y. 17 375 

Piper v., 76 Hun, 44 372 

Thorpe v., 76 N. Y. 402 352 

New York C. S. C. Co., 28 Mo. App. 199 . .381, 382, 383, 387, 391 

New York Excise Comrs., Kelly v., 54 How. Pr. 327 15, 16 

New York, L. E. & W. R. R., Sessions v., 78 Hun, 541 . . 381, 387, 393 

New York, N. H. & H. R. R., Carpenter v., 124 N. Y. 53 . . 387, 392 

New York S. C. Co., Lewis v., 143 Mass. 267 386, 390, 392 

Nichols v. HalUday, 27 Wis. 406 ... . 298, App. XL VIII, §3 

Faucett v., 4 Th. & C. 597 414, App. XXX, § 1 

64 N. Y. 377 416, App. XXX, § 1 

Nicholson, Peo. v., 25 N. Y. Misc. 266 444, App. XXX § 7 

Proctor v., 7 C. & P. 67 64, 241, 252, 253, 278 

Nicol, Ultzen v., 1894, 1 Q. B. 92 304 

Niklass, Lambert v., 45 W. Va. 527 274 

Noble v. Milliken, 74 Me. 225 429, App. XVH, §3 

Norcross v. Norcross, 63 Me. 163 ... . 20, 121, 148, 185, 282, 283 

[555] 



Table of Cases Citeb. 

[kBFERENCES ABE TO SECTIONS.] 

Norfolk & W. R. R. V. Lipscomb, 90 Va. 137 402 

North, New Orleans v., 12 La. Ann. 205 311 

Northcraft, Packard v., 2 Met. Ky. 439 148, 186, 215, 225 

Norton, Peo. v., 7 Barb. 477 44 

Nott V. Maclurgan, 20 W. N. (N. S. W.) 135 183, 189 

Nurdlinger v. Irvine, 18 W. N. 0. 65 . 325 



0. 

O'Brien v. Vaill, 22 Fla. 627 231 

Taylor v., Que. R. 24 S. C. 407 . . . - ' 261 

O'Connor v. Grand Int. H. Co., 1898, 2 Ir. 92 423 

Oden, Banks v., 1 A. K. Marsh, 546 242 

Oellers v. Horn, 3 Pa. Super. 537 325 

Gandy v., 39 W. N. C. 438 325 

O'Hara, Misch v., 9 Daly, 361 . . . . 265, 298, App. XXX, § 11 

Olson V. Grossman, 31 Minn. 222 ... . 188, 413, 418, App. XXI, § 2 

Curran v., 88 Minn. 307 171, 172 

Omel, Lucia v., 46 App. Div. 200 137 

53 App. Div. 641 185 

Opera House Co., Hayes v., 139 Pa. 636 325 

Oppenheim v. White Lion Hotel Co., L. R. 6 C. P. 515 224 

Orchard v. Bush, 1898, 2 Q. B. 284 63, 131, 135, 136 

Osborn, Jones v., 2 Chit. 484 22 

Overstreet v. Moser, 88 Mo. App. 72 131, 172 

Owen, Hill v., 5 Blackf. 323 186 

Owens V. Geiger, 2 Mo. 39 222 

Bohler v., 60 Ga. 185 224 

Oxford v. Leathe, 165 Mass. 254 322 



P. 

P. V. Verein, Sebeck v., 64 N. J. L. 624 322 

Pabe V. Myers, 5 Ohio S. & C. P. Dec. 578 15 

Pacific Improvement Co., Fay v., 93 Cal. 253 14, 19, 139, 148, 189, 

App. IV, § 8 

Magee v., 98 Cal. 678 138, 139 

Pack, Holland v., Peck, 151 114 

Packard v. Northcraft, 2 Met. (Ky.) 439 148, 186, 215, 225 

Packwood, Famworth v., 1 Holt N. P. 209 150 

Paddock v. Atchison, T. & S. F. R. R., 37 Fed. 841 366 

Palin v. Reid, 10 Ont. 63 231 

Parker v. Flint, 12 Mod. 254, Garth. 417 14, 15, 169, 291 

Parsons, Stewart v., 24 Wis. 241 431, App. XL VIII, § 1 

[556] 



Table of Cases Cited. 

[bbfbeences are to sections.] 

Pattison v. Hammerstein, 17 N. Y. Misc. 375 324 

Payne, Fredericks v., 1 H. & C. 684 325 

Pearce v. Spalding, 12 Mo. App. 141 36, 314 

Pearson v. Seattle, 14 Wash. 438 325 

Pease, Howe Mach. Co. v., 49 Vt. 477 186, 190 

Peeples, Miller v., 60 Miss. 819 233 

Peer, Drew v., 93 Pa. 234 316 

Peet V. MoGraw, 25 Wend. 653 283 

Pendergast v. Compton, 8 C. & P. 454 56 

Pennsylvania Co. v. Roy, 102 U. S. 451 375 

Pennsylvania R. R., Messenger v., 8 Va. 531 55 

Peo. V. Board of Police, 36 N. Y. Misc. 89 46 

V. Campbell, 51 N. Y. App. Div. 565 325 

V. Husband, 36 Mich. 306 276 

V. Jones, 54 Barb. 311 15, 22, 44 

V. King, 110 N. Y. 418 41 

V. Murphy, 65 N. Y. App. Div. 123 46 

5 Park Cr. 130 17, 42 

V. Nicholson, 25 N. Y. Misc. 266 444, App. XXX, § 7 

V. Norton, 7 Barb. 477 44 

V. Royal, 23 N. Y. App. Div. 258 325 

V. Willett, 26 Barb. 78 282 

V. Wurster, 14 N. Y. App. Div. 556 .. . 46 

Rodgers v., 86 N. Y. 360 167 

Perkins, Houston E. & W. T. Ry. v., 21 Tex. ttv. App. 508 ... . 373 

Pettigrew v. Bamum, 11 Md. 434 191 

Pfaelzer v. Pullman P. C. Co., 4 W. N. C. 240 342 

PhilUps, Schnitzer v., 95 N. Y. Supp. 478 302 

Pigot, Binns v., 9 C. & P. 208 252 

Pike V. State, 35 Ala. 419 325 

Hall v., 100 Mass. 495 138, 139 

Pinchon's Case, 9 Coke, 87 69 

Knkerton v. Woodward, 33 Cal. 557 14, 15, 17, 19, 32, 121, 139, 213, 291 

Piper V. Manny, 21 Wend. 282 154 

v. New York C. & H. R. R. R., 76 Hun, 44 372 

Pleiss, Bremer v., 121 Wis. 61 164, 165 

Plummer, Saimders v., O. Bridg. 223 284 

PoUock V. Landis, 36 la. 651 138, 139, 252, 278 

PuUman P. C. Co. v., 69 Tex. 120 342, 381 

Pope V. Hall, 14 La. Ann. 324 191 

Porter v. Gilkey, 67 Mo. 235 . . . . . . . 417, 421, App. XXIII, § 3 

Porterfield, Walsh v., 87 Pa. 376 . . '. 188, 228 

Portland & R. R. R., McDuffie v., 54 N. H. 30 65, 56 

Posey, Beale v., 72 Ala. 323 139, 140, 413, 417, App. I, § 3 

Post, Leoncini v., 13 N. Y. Supp. 826 296 

Potter, Walling v., 35 Conn. 183 15, 63, 135, 138 

[557] 



Table of Cases Cited. 

[references are to sections.] 

Powell, Com. v., 10 Phila. 180 318 

Pratt, Danfoi-th v., 42 Me. 50 252, 270 

Presby, Albin v., 8 N. H. 408 155 

Prescott V. Bruce, 2 Cinn. 58 431 

Probasco, Buckle v., 58 Mo. App. 49 144 

Proctor V. Nicholson, 7 C. & P. 67 64, 241, 252, 263, 278 

Berkshire Woolen Co. v., 7 Cush. 417 139, 191, 225, 285 

Rockwell v., 39 Ga. 105 144 

Profllet V. Hall, 14 La. Ann. 524 191 

Prospect Park Hotel Co., Conklin v., 1 N. Y. S. 406 71 

Pullman P. C. Co. v. Adams, 120 Ala. 581 341, 342, 383, 387, 391, 392 

V. Arents, 28 Tex. Civ. App. 71 385, 391 

V. Bales, 80 Tex. 211 368 

V. Barker, 4 Col. 344 365, 402 

V. Booth, 28 S. W. 719 343, 346, 364, 401, 402 

V. Cain, 15 Tex. Civ. App. 503 365 

V. Freudenstein, 3 Col. App. 540 . . . 341, 342, 381, 393 

V. Gardner, 3 Penny. 84 341, 342, 381, 387, 392 

V. Gavin, 93 Tenn. 53 341, 342, 382, 387, 388, 401 

V. Gaylord, 9 Ky. L. Rep. 58 342, 383, 387 

V. Hatch, 30 Tex. Civ. App. 303 381, 387, 392 

V. Hunter, 107 Ky. 519 383, 387 

V. Lawrence, 74 Miss. 782 342, 343, 371, 374, 401 

V. Lee, 49 111. App. 75 342, 344 

V. Lowe, 28 Neb. 239 341, 381 

V. McDonald, 2 Tex. Civ. App. 322 365 

V. Marsh, 24 Ind. App. 129 368 

v. Martin, 92 Ga. 161 381 

v. Matthews, 74 Tex. 654 382, 391 

V. Nelson, 22 Tex. Civ. App. 223 364 

V. Pollock, 69 Tex. 120 342, 381 

v. Reed, 75 111. 125 348, 364, 402 

V. Smith, 73 111. 360 15, 341, 342, 381 

V. Smith, 79 Tex. 468 370 

V. Taylor, 65 Ind. 153 365, 367, 401 

Airey v., 50 La. Ann. 648 . . ._ . 370 

Arthur v., 44 N. Y. Misc. 229 385 

Belden v., 43 S. W. 22 384, 389 

Campbell v., 42 Fed. 484 374, 402 

Cassedy v., 17 So. 373 374 

Chamberlain v., 65 Mo. App. 474 391 

Cooney v., 121 Ala. 368 383, 389 

Dargan v., 2 Wills. § 691 341, 387 

Duval v., 62 Fed. 265 365 

Edmundson v., 92 Fed. 824 363 

Falls R. & M. Co. v., 6 Oh. Dec. 85 341, 381, 388 

[558] 



Table of Cases Cited. 

[references ABE TO SECTIONS.] 

Pullman P. C. Co. Florida v., 37 Mo. App. 598 393 

Hampton v., 42 Mo. App. 134 383, 387 

Heenrich v., 20 Fed. 100 374 

Lemon v., 52 Fed. 262 342, 344, 402 

Morrow v., 98 Mo. App. 351 382, 387, 391 

Nevin v., 106 111. 222 343, 344, 361, 364, 369, 376, 401 

Pfaelzer v., 4 W. N. C. 240 342 

Scaling v., 24 Mo. App. 29 342 

Simms v., Fed. Cas. No. 12,869a 342 

Sise v., 1 Que. Sup. 9 341, 381, 385 

Steam v., 8 Ont. 171 381, 392 

Stevenson v., 26 S. W. 112 381,390,403 

Tracy v., 67 How. Pr. 154 341, 342, 381, 392 

Welch v., 16 Abb. Pr. N. S. 352 341, 381 

Williams v., 40 La. Ann. 87 374 

Pullman's P. C. Co.v. Ehrman, 65 Miss. 383 369 

V. Fielding, 62 111. App. 577 362 

V. Hall, 106 Ga. 765 341, 342, 384, 385 

V. Harvey, 101 Ga. 733 383, 384, 391, 393 

V. King, 99 Fed. 380 , ~ 365 

V. Martin, 95 Ga. 314 382, 383 

Ban-ott v., 51 Fed. 796 383 

Curlander v., 28 Chic. Leg. N. 68 348,377 

Hughes v., 74 Fed. 499 363, 402 

Kates v., 95 Ga. 810 383, 387, 391, 393, 394 

Lawrence v., 144 Mass. 1 344 

McMurray v., 86 111. App. 619 381 

Whitney v., 143 Mass. 243 342, 391 

Purcell V. Daly, 19 Abb. N. C. 301 313, 314, 315, 316, 317 

Purvis V. Coleman, 1 Bosw. 321 420 

21 N. Y. Ill 420, App. XXX, § 3 



0. 

Quattlebaum, Carlisle v., 2 Bail. 452 252 

Quilter, Butler v., 17 T. L. R. 159 183 

Quinton v. Courtney, 1 Hayw. R. 40 190 



R. L. Polk & Co. v. Melenbacker, 99 N. W. 867 139, 261 

Rahmel v. Lehndorff, 142 Cal. 681 173 

Railroad Co. v. Walrath, 38 Oh. S. 461 375 

Ernst v., 35 N. Y. 9 295 

Rains v. Maxwell House Co., 112 Tenn. 219 . . . 431, 432, App. XLI, § 5 

[559] 



Table of Cases Cited. 

[references ABE TO SECTIONS.] 

Ramaley v. Leland, 6 Robt. 358 224, App. XXX, § 3 

43 N. Y. 539 431, 432, App. XXX, § 3 

Rand, Hancock v., 94 N. Y. 1 138, 140 

Randall v. Tuell, 89 Me. 443 48 

Ravey, Morgan v., 6 H. & N. 265 183, 282, 284 

Ray, Shaw v., 1 Cr. & D. 84 148 

Read v. Amidon, 41 Vt. 15 113, 131, 148, 223, 225, 285 

Smith v., 54 How. Pr. 14 292, 293 

Reed v. Teneyck, 103 Ky. 65 252 

Pullman P. C. Co. v., 75 111. 125 348, 364, 402 

Scrivenor v., 6 W. R. 603 167 

Rees V. McKeown, 7 Out. App. 621 13 

Reg. V. Askin, 20 Up. Can. Q. B. 626 252 

V. Rymer, 2 Q. B. D. 136 15, 21, 22, 96, 301 

V. Sprague, 63 J. P. 233 92, 167 

V. Tucker, 2 Q. B. D. 417 325 

Reid, Palin v., 10 Ont. 63 231 

Reifsnyder, Com. v., 14 Pa. Co. Ct. 353 325 

Reinhardt, Willard v., 2 E. D. Smith, 148 14, 32, 185, 291 

Rescorla, Blythan v., 1 Kulp, 351 App. XXXVI, § 10 

Rex V. Collins, Pahner, 367, 373 41, 52, 61, 70, 71, 282 

V. Forbes, 1 Cr. & D. 157 320 

V. Handy, 6 T. R. 286 325 

V. Ivons, 7 C. & P. 213 61, 66, 70, 92, 95 

V. Luellin, 12 Mod. 445 62, 93 

V. Smith, 65 J. P. 521 61 

Reynolds, Johnson v., 3 Kan. 257 139, 201, 204 

Richard, Lamond v., 1897, 1 Q. B. 541 105, 252 

Richardson, Danseyv.,3E.&B. 143 292,293,294 

Johnson v., 17 111. 302 186, 188, 190, 214, 226 

Richmond v. Smith, 8 B. & C. 9 148, 158, 183 

Richmond & M. Ry. v. Moore, 94 Va. 493 322 

Road Drivers' Assoc., Roche v., 96 N. Y. S. 205 241 

Robins v. Gray, 1895, 2 Q. B. 501 68, 256, 261, 262 

Robinson v. Waller, 1 Roll. Abr. 3, pi. 7 133, 285 

V. Walter, 3 Bulst. 269 261 

McDaniels v., 26 Vt. 316 132, 187, 188, 232 

28Vt.387 132,231,233 

Roche V. Road Drivers' Assoc, 96 N. Y. Supp. 205 241 

Rock, Hawk v., 14 Pa. Co. Ct. 490 App. XXXVI, § 10 

Rockwell V. Proctor, 39 G a. 105 144 

Crapo v., 92 N. Y. S. 1122 139, 181 

Rodgers v. Peo., 86 N. Y. 360 167 

Roessle, Hoffman v., 39 N. Y. Misc. 787 231 

Rosenplaenter v., 54 N. Y. 262 .... 427, 432, App. XXX, § 3 

Rogers, Dickerson v., 4 Humph. 179 15, 19, 20, 48, 162 

[560] 



Table of Cases Cited. 

[references are to sections.] 

Rommel v. Schambacher, 120 Pa. 579 171, 172 

Root V. New York C. S. C. Co., 28 Mo. App. 199 381, 382, 383, 387, 391 
Rosenplaenter v. Roessle, 54 N. Y. 262 ... 427, 432, App. XXX, § 3 

Ross V. Mellin, 36 Minn. 421 121, 138, 139 

Rosse V. Bramstead, 2 Roll. R. 438 276 

Rourke, Simpson v., 13 N. Y. Misc. 230 303, 306 

Rowland v. Kleber, 1 Pittsb. 68 312 

Roy, Pennsylvania Co. v., 102 U. S. 451 375 

Royal, Peo. v., 23 App. Div. 258 325 

Rubenstein v. Cruikshanks, 54 Mich. 199 223, 226 

Russell V. Fagan, 7 Iloust. 389 132, 185 

Russellville v. White, 41 Ark. 485 42 

Ryder, Centlivre v., 1 Edm. Sel. Cas. 273 203, 205 

Rymer, Reg. v., 2 Q. B. D. 136 15, 21, 22, 96, 301 



S. 

St. Louis, City of, v. Siegrist, 46 Mo. 593 22 

St. Louis A. & T. Ry. v. Hardy, 55 Ark. 134 352 

Sands' Case, F. Moore, 876 232 

Sandys v. Florence, 47 L. J. C. P. 598 163, 170 

Sasseen v. Clark, 37 Ga. 242 188, 190, 191, 223, 234 

Saunders v. Plummer, O. Bridg. 223 284 

Saville, District of Columbia v., 1 McAr. 581 318 

Sawyer, Atwater v., 76 Me. 539 20, 94, 98, 169 

ScaUng V. Pullman P. C. Co., 24 Mo. App. 29 342 

Scarbrough v. Cosgrove, 1905, 2 K. B. 805 297, 332 

Scattergood v. Waterman, 2 Miles, 323 248 

Schaffer, Boston v., 9 Pick. 415 325 

Schambacher, Rommel v., 120 Pa. 579 171, 172 

Schedler, Kom v., 11 Daly, 234 13 

Scheffer v. Corson, 5 S. D. 233 185, 204 

Schermerhom v. Tripp, 2 Caines, 108 20 

Scherpf, Burton v., 1 AU. 133 315, 316 

Schlosser, McHugh v., 159 Pa. 480 102, 103 

Schmidt, Toub v., 60 Hun, 409 203, 205 

Schnabel, Metzger v., 23 N. Y. Misc. 698 139, 134 

Schneps v. Strum, 25 N. Y. Misc. 168 330 

Schnitzer v. Phillips, 95 N. Y. Supp. 478 302 

Schofield V. Wood, 170 Mass. 415 322, 323 

Schryver, Cochrane v., 12 Daly, 174 252 

Scott, Garden v., 1 Kulp, 196 App. XXXVI, § 10 

Scrivenor v. Reed, 6 W. R. 603 167 

Searle, Clarke v., 1 Esp. 25 325 

Searles v. Mann B. C. Co., 45 Fed. 330 343, 345, 347, 377 

36 [ 561 ] 



Table of Cases Cited, 
[references are to sections.] 

Seattle, Pearson v., 14 Wash. 438 325 

Sebeok v. P. V. Verein, 64 N. J. L. 624 . .322 

Sellers, Atkinson v., 5 C. B. N. S. 442 63, 131 

Sergent, Murchison v., 69 Ga. 206 . . 224, 225, 413, 418, 432, App. IX, § 7 
Sessions v. New York, L. E. & W. R. R., 78 Hun, 541 .. . 381, 387, 393 

Seymour V. Cook, 53 Barb. 451 234 

Shafer v. Guest, 6 Robt. 264 298, App. XXX, § 11 

Sharpe, Walker v., 31 U. C. Q. B. 340 285 

Shaw V. Berry, 31 Me. 478 185 

V. Ray, 1 Cr. & Dix. 84 148 

Shawcross, Kirkman v., 6 T. R. 14 .... 55 

Shearman v. Iroquois H. & A. Co., 42 N. Y. Misc. 217 34, App. XXX, § 11 
Sheffer v. Willoughby, 163 111. 518 . . . . 15, 169, 301, 302 

Shelley v. Bethell, 12 Q. B. D. 11 . ... 325 

Sherry, Block v., 43 N. Y. Misc. 342 15, 172, 301, 302 

Shirley, Mills v., 110 Mass. 158 . . . . 265, 298, App. XIX, § 18 

Shoecraft v. Bailey, 25 la. 553 139, 226 

Shoemaker v. Beaver, 42 Leg. Int. 511 243 

Shortridge, Com. v., 3 J. J. Marsh. 638 .... 22, 242, App. XV, § 4 
Showalter, Gump v., 43 Pa. 507 .... 265, App. XXXVI, §3 

Shuckard, Kent v., 2 B. & Ad. 803 191 

Shultz V. Wall, 134 Pa. 262 188, 224 

Shutt V. Lewis, 5 Esp. 128 325 

Sibley v. Aldrich, 33 N. H. 553 185 

Siegman v. Keeler, 4 N. Y. Misc. 528 292, 295 

Siegrist, St. Louis v., 46 Mo. 593 22 

Sights V. Yamalls, 12 Grat. 292 47 

Simms v. Pullman S. C. Co., Fed. Cas. No. 12,869a 342 

Simon v. Miller, 7 La. Ann. 360 191 

Simpson v. Rourke, 13 N. Y. Misc. 230 303, 306 

V. Wood, 105 Mass. 263 325 

Day v., 18 C. B. N. S. 680 311 

Singer Mfg. Co. v. Flannigan, 7 Pa. Co. Ct. 45 . . 261, App. XXXVI, § 3 

V. Miller, 52 Minn. 516 252, 261 

Hook v., 11 Natal L. R. 301 . . . . . . 261, 262 

Sise V. Pullman P. C. Co., 1 Quebec Super. 9 . . 341, 381, 385 

Six Carpenters' Case, 8 Coke, 290 102 

Smith V. Canada P. R. R., 34 N. S. 22 362 

V. Colcord, 115 Mass. 70 266, 298, App. XIX, § 18 

V. Dearlove, 6 C. B. 132 252 

V. Dingus, 12 Pa. Co. Ct. 299 App. XXXVI, § 10 

V. Keyes, 2 Th. & C. 650 139, 245 

V. Leo, 92 Hun, 242 315, 316 

V. McGinty, 101 Pa. 402 App. XXXVI, ' § 10 

V. Read, 54 How. Pr. 14 292, 293 

V. Wilson, 36 Minn. 334 191 225 

[ 562 ] 



Table of Cases Cited. 

[references are to sections.] 

Smith, Allen v., 12 C. B. N. S. 638 232, 233, 272, 275 

Hawley v., 25 Wend. 642 153 

Lyon v., 1 Morris, 184 13, 19, 20 

Pullman P. C. Co., 73 111. 360 15, 341, 342, 381 

79 Tex. 468 370 

Rex v., 65 J. P. 521 61 

Richmond v., 8 B. & C. 9 148, 153, 183 

Swann v., 14 Daly, 114 224, 332 

Snead v. Watkins, 1 C. B. N. S. 267 261, 262 

Sneed v. Morehead, 70 Miss. 690 163 

Sneider v. Geiss, 1 Yeates, 34 147 

Snook, Bradley Livery Co. v., 66 N. J. L. 654 155 

Society for Reformation v. Diers, 10 Abb. Pr. N. S. 216 311 

Sonnebom v. Steinan, 85 N. Y. S. 334 246 

Soulby, Holder v., 8 C. B. N. S. 254 331 

Southcote V. Stanley, 1 H. & N. 247 63 

Southern Hotel Co., Labold v., 54 Mo. App. 49 144 

Wyckoff v., 24 Mo. App. 382 265, App. XXIII, § 1 

Southern P. P. C. Co., Blum v., 1 Flip. 500 341, 342, 383, 386, 387, 388, 391 

Southw6od V. Myers, 3 Bush, 681 14, 291 

Spalding, Pearce v., 12 Mo. App. 141 36, 314 

Spencer, Candy v., 3 F. & F. 306 148, 225, 285 

Spice V. Bacon, 36 L. T. 896 224 

Spioer v. Bacon, 2 Ex; D. 463 413, 419 

Sprague, Reg. v., 63 J. P. 233 92, 167 

Spring V. Hager, 145 Mass. 186 223, 224 

Squire v. Wheeler, 16 L. T. 93 419 

Stanley v. Bircher, 78 Mo. 245 282, 284 

Southcote v., 1 H. & N. 247 63 

Stanton v. Leland, 4 E. D. Smith, 88 .... 211, 212, 213, 214, 215 

Stanwood v. Woodward, 38 Me. 192 48 

Staples, Minor v., 71 Me. 316 153, 207 

Stark, Ewart v., 8 Rich. L. 423 252 

State V. Benson, 28 Minn. 424 441, 443, App. XXI, § 3 

V. Cloud, 6 Ala. 628 41, 48 

V. Engle, 156 Ind. 339 441, App. XII, § 2 

V. Fletcher, 5 N. H. 257 42, 48 

V. French Opera Assoc, 107 La. 284 325 

V. Johnson, 65 Me. 362 . 48 

V. KiQgsley, 108 Mo. 135 ... . 441, 445, 446, 448, App. XXUI, § 5 

V. Lundie, 47 La. Ann. 1596 325 

V. McDonald, 4 Harr. (Del.) 555 44 

V. Matthews, 2 Dev. & B. 424 13 

V. Steele, 106 N. C. 766 65, 82, 85, 86, 92, 120 

V. Stone, 6 Vt. 295 11, 22, 42, 46, 47 

v.Tull,42Mo.App.324 445, 448, App. XXIII, § 5 

[563] 



Table of Cases Cited. 

[references are to sections.] 

state V. Whitby, 5 Harr. 474 82 

V. Wynne, 1 Hawks, 451 20, 48, 98 

V. Yardley, 95 Tenn. 546 441, App. XLI, § 6 

Chauncey v., 130 Ala. 71 448, App. I, § 6 

Curtis v., 5 Ohio, 324 17 

Gilhnan v., 55 Ala. 248 325 

Jacko v., 22 Ala. 73 311, 323 

Pike v., 35 Ala. 419 325 

Winter v., 30 Ala. 22 18, 48 

Steam v. Pullman Car Co., 8 Ont. 171 381, 392 

Stedman, In re., 14 Phila. 376 43 

Steele, State v., 106 N. C. 766 65, 82, 85, 86, 92, 102 

Steinan, Sonnebom v., 85 N. Y. S. 334 246 

Stephens v. Watson, Salk. 45 41 

Cromwellv., 2Daly, 15 15,16,22 

Stevenson v. Pullman P. C. Co., 26 S. W. 112 381, 390, 403 

Stewart v. Head, 70 Ga. 449 205 

V. McCready, 24 How. Pr. 62 298, App. XXX, § 11 

V. Parsons, 24 Wis. 241 '431, App. XL VIII, § 1 

Stone, State v., 6 Vt. 295 11, 22, 42, 46, 47 

Stott V. Churchill, 15 N. Y. Misc. 80 162, 163, 170 

Strange, Wigan v., L. R. 1 C. P. 175 311 

Stratton, Baker v., 52 N. J. L. 277 264, App. XXVIII, § 1 

Strauss v. County H. & W. Co., 12 Q. B. D. 27 . . . 89, 123, 143, 203 

Stringfellow v. Grunewald, 109 La. 187 169 

Strum, Schneps v., 25 N. Y. Misc. 168 333 

Sunbolf V. Alford, 3 M. & W. 248 257, 259 

Sundmacher v. Block, 39 111. App. 553 447, App. XI, § 5 

Swan V. Bournes, 47 la. 501 260 

Dibdin v., 1 Esp. 28 319 

Swann v. Smith, 14 Daly, 114 224, 332 

Swedish Brethren, Mastad v., 83 Minn. 40 321 

Sweeney, Kellogg v., 1 Lans. 397 191, 418, App. XXX, § 3 

Sweeny, Bernstein v., 33 N. Y. Super. 271 . . 418, 431. App. XXX, § 3 

Krohn v., 2 Daly, 200 16, 21, 432, App. XXX, § 3 

Swift, Hulett v., 33 N. Y. 571 185, 189 



T. 

Taylor v. Downey, 104 Mich. 532 201, 202, 252 

V. Humphreys, 30 L. J. M. C. 242 63, 125 

V. Monnot, 1 Abb. Pr. 325 191 

4 Duer, 116 22 

V. O'Brien, Que. R. 24 S. C. 407 261 

V. Waters, 7 Taunt. 374 315 

[564] 



Table of Cases Cited. 

[references are to sections.] 

Taylor, Carpenter v., 1 Hilb. 193 15, 22, 291, 301 

Cheesebrough v., 12 Abb. Pr. 227 190 

Forster v., 3 Camp. 49 249 

Hyatt v., 42 N. Y. 258 432, App.'XXX, § 3 

Pullman P. C. Co. v., 65 Ind. 153 365, 367, 401 

Weisenger v., 1 Bush, 275 . 148,186,191 

Taxing District v. Emerson, 4 Lea, 312 325 

Ten Broeck v. Wells Fargo & Co., 47 Fed. 690 163 

Teneyck, Reed v., 103 Ky. 65 252 

Terminal H. & A. Co., Horton v., 89 S. W. 363 424 

Thaire, Drope v., Latch, 126 14 

Thatcher v. Beam, 14 Pa. Co. Ct. 107 App. XXXVI, § 10 

Thayer, Wade v., 40 Cal. 578 172 

Thickstun v. Howard, 8 Blackf. 535 186 

Thomas v. Glascoe, 13 Pa. Co. Ct. 167 App. XXXVI, § 10 

Hickman v., 16 Ala. 666 252 

West v., 97 Ala. 622 163 

Thompson v. Lacy, 3 B. & Aid. 283 11, 15, 65, 252 

V. Lowell L. & H. S. Ry., 170 Mass. 577 321 

Mason v., 9 Pick. 280 21, 132, 186, 285 

. Thome, Dunlap v., 1 Rich. L. 213 252 

Thorpe v. New York C. & H. R. R. R., 76 N. Y. 402 352 

Threfall v. Borwick, L. R. 10 Q. B. 210 261 

Throckmorton, Vance v., 6 Bush. 41 149, 186, 189, 201 

Thurloe, Jones v., 8 Mod. 172 254, 270 

Todd,Briggsv., 28N.Y.Misc.208 430, 431, App. XXX, § 3 

Toddington, Whalley v., 13 Phila. 2 242 

Tombler v. Koelling, 60 Ark. 62 207, 333 

Toms V. Luckett, 5 C. B. 23 34 

Torrey v. McCleUan, 17 Tex. Civ. App. 371 265 

Toub V. Schmidt, 60 Hun, 409 203, 205 

Townsend, Mosse v., 1 Bulst. 207 276 

Towson V. Havre de Grace Bank, 6 H. & J. 47 186, 283, 285 

Tracy v. PuUman P. C. Co., 67 How. Pr. 154 ... . 341, 342, 381, 392 

Travis, Goodenow v., 3 Johns. 427 92 

Treiber v. Burrows, 27 Md. 130 ... . 191, 430, App. XVIII, §3 
Treverton, Dillon v., 16 Pa. Co. Ct. 89 .... App. XXXVI, § 10 

Trieber v. Burrows, 21 Md. 320 148, 190, 223 

Trigg V. Newton, 1 Show. 268 241 

Trimmer v. Hiscock, 27 Hun, 31 48 

Tripp, Schermerhom v., 2 Gaines, 108 20 

Trissal, Western U. T. Co. v., 98 Ind. 566 146 

Tucker, Reg. v., 2 Q. B. D. 417 325 

Tuell, Randall v., 89 Me. 443 48 

Tulane Hotel Co. v. Holohan, 112 Tenn. 214 . . . ^ . . 143, 203, 205 

TuU, State v., 42 Mo. App. 324 445, 448, App. XXIII, § 5 

[565] 



Table of Cases Cited. 

[eEPEBENCES ABE TO SECTIONS,] 

Tully, Houserv., 62Par92 144,147,222 

Turner v. Whitaker, 9 Pa. Super. 83 . . . 228, 429, App. XXXVI, § 5 

Hays v., 23 la. 214 231, 232, 233 

Turrill v. Crawley, 13 Q. B. 197 261 

Tutt, Caldwell v., 10 Lea, 258 272 

Tyler, Jones v., 1 A. & E. 522 154 



u. 

Ultzen V. Nicol, 1894, 1 Q. B. 92 304 

U. S. V. Barney, 3 Hughes, 545 258 

V. McCracken, 3 Hughes, 544 268 

Upshaw, Hadley v., 27 Tex. 547 223 



V. 

Vaill, O'Brien v., 22 Fla. 627 231 

Vance v. Throckmorton, 5 Bush, 41 149,