2

gal.' It allows no action on the contract; or by the payce on a note given for the purchase money. It prohibits sales to minors and apprentices; and quite recently in several of our States the statute renders the seller, as well as the owner of the premises occupied by him, liable in damages resulting to the employer or to any member of the family of the person who becomes intoxicated by the licensed sale of liquors to him; liable to the extent of the damages suffered by the sale of the liquors causing the intoxication, and the consequent damages. The intent of the statute apparently is, to make it the interest of the seller to prevent his customers from drinking to intoxication; or to stimulate him in his duty to sell with discretion. And it is adjudged that the license to sell at retail does not so far render the sale legal as to prevent the seller's being held liable for an abuse of his privilege; and for damages quite remote from the negligent sale."

§ 452. A license to sell liquors at retail will protect an agent or clerk actually making the sale; but no one can excuse himself from liability by showing that he acted as a clerk of an unlicensed person, in a sale." The license to sell is a personal trust, and cannot be assigned to another; hence one who purchases a tavern and receives from the grantor permission to sell under his license, cannot continue the business of selling and defend himself against an action to recover the penalty for selling liquors without a license, by proving such permission.

Under the statutes of this State, when a justice of the peace becomes an innholder or a tavern-keeper, he is thereby disqualified from commencing any new civil business as a justice; and being a tavern-keeper and licensed to sell, he is held eligible to the office; as the court said in one case, the statute "left it open to the people of the town, if such be their will, to have rum and justice dispensed at the same place and

1 Griffith v. Wells, 3 Denio, 226; Board of Excise of Ont. Co. v. Garling. house, 45 N. Y., 249.

2 Best v. Bauder, 29 How. Pr., 489.

3 Coburn v. Odell, 10 Foster N. H., 540; Perkins v. Cummings, 2 Gray, 258; Hubbell v. Flint, 13 Gray, 277.

4 Perry v. Edwards, 44 N. Y., 223.

The Civil Damage Act was adopted in this State in 1873. It is entitled, "An Act to Suppress Intemperance, Pauperism and Crime." Ch. 646.

6 Baker v. Pope, 5 N. Y. Sup. Ct., 102; Jackson v. Brookins, 12 N. Y. Sup. Ct., 530, 332; Hayes v. Phelan, 11 N. Y. Sup. Ct., 733; Schneider v. Hosier, 21 Ohio St., 98; 33 Wis., 107, 154, 570; Chicago Legal News, Aug. 1, 1874.

'Board of Excise v. Dougherty, 55 Barb., 332; a husband is liable for a penalty incurred by the wife's sale; Coms. of Excise v. Keller, 20 How. Pr.,

Alger v. Weston, 14 John. R., 231.

by the same hand." By a subsequent amendment, this freedom is taken from the people. A tavern-keeper cannot now exercise the civil jurisdiction of a justice of the peace.2

There is also another provision of our statutes, which deserves to be noticed, prohibiting an innholder or tavern-keeper from trusting any persons, except lodgers in his house, for wines or any sort of strong or spirituous liquors. Such debts cannot be recovered; and all securities given for them are declared void.3

§ 453. The words hotel and inn have very nearly the same history, and still retain in literature some touch of sentiment derived from their original sense; they have a suggestive sense which does not belong to the word tavern; and yet these several words are now often used interchangeably, as synonymous terms. The keeper of a tavern has the same rights and is under the same liabilities as an innkeeper, where he furnishes beds, provisions and entertainment for all persons paying for the same, without furnishing accommodations for carriages and horses. So is the keeper of a hotel, who furnishes the same accommodations with the same exception; and the rule is the same where he

1 Parmalec v. Thompson, 7 Hill, 77.

2 Rice v. Milks, 7 Barb., 337; 13 John. R., 218.

32 R. S., 941, fifth ed.; Evernghim v. Ensworth, 7 Wend., 326; Ehel v. Smith, 3 Caines R., 187.

Overseers &c. of Crown Point v. Warner, 3 Hill, 150; Wortham v. Comm'th, 5 Rand., 669; Linkous v. Comm'th, 9 Leigh's R., C08; Cromwell v. Stephens, 2 Daly, 15. Hotels and inns have a parallel history; in France the hotel was at an carly day the palace or dwelling-house of a prince or lord, in which he was accustomed to entertain travelers and strangers; and the inn in England seems to have been originally the town-house of a nobleman, bishop or other distinguished personage, in which ho resided and entertained his followers, when he attended court; thus Warwick, the king-maker, whilst he resided in London, a city which he loved and courted, kept open house for the humbler sort of people, and free board for all comers, roasted six oxen for every meal, so that each guest might carry off as much meat with him as he could stick upon a large dagger; and such was his hospitality, that it was a saying current in his time, that thirty thousand men were fed by him on his various domains and in his numerous castles. As the commons grew in importance, common inns took the place of ducal and baronial halls, till by degrees tho hospitable monastery and the castle of the nobleman were no longer frequented by the traveller, as a place of entertainment and rest on his journey; so that finally the old hospitality was superseded by the age of commerce and civil freedom. Gray's Inn and Lincoln's Inn, designating, it is said, the residence of the families whose names they bear, are still left as a kind of fossil history of the old time, and origin of our public houses. (2 Michelet's History of France, 319; Webster's Dictionary.)

Thompson v. Lacy, 3 Barn. and Ald., 283. 6 Jones v. Osborn, 2 Chitty R., 484.

keeps a hotel on the European plan, providing his guests with lodgings for uncertain periods and keeping a refectory on the premises where they may at their option take their meals, and pay for them, then and there.' It is the business which fixes the character of the house: a man is liable as an innkeeper, where he keeps a house for the reception and entertainment of all comers, but more especially for the accommodation of a class known as emigrants, guests entertained from day to day. He does not become thus liable where he merely keeps a restaurant; or where he keeps both a public house and a restaurant, and merely receives a person at a table for a meal.3 And he does become liable as an innkeeper, where he receives lodgers and furnishes them with meals, without any previous agreement as to the duration of their stay or the terms of their entertainment.*

§ 454. The keeper of a coffee-house, a boarding-house or lodginghouse is not an innkeeper, because he does not keep a public house of general entertainment, for all who choose to visit it; and does not enter upon the business of keeping a common inn. Where he really keeps an inn, though under the name of a coffee-house, and conducts his business as an innkeeper, he is liable in that capacity; and he is not so liable where he simply receives lodgers and boards them under special contracts for a limited time, or where he simply lets rooms by the day or the weck, and does not otherwise provide for their entertainment.?

6

§ 455. Who are Guests? The answer to this question generally deter mines in whose favor an action may be maintained against an innkeeper. A stranger, a traveller, and all persons entertained at a common inn, tavern or hotel, are deemed guests; and on that account entitled to hold the innkeeper to his strict common law liability.

It appears from the original writ used against an innkeeper, which was the foundation of the common law on this subject, that the common inn was instituted for passengers and wayfaring men, being termed diversorium, because he who lodges there is quasi divertens se a via; and hence a neighbor who lodges with the innkeeper as a friend, is not deemed

1 Krolin v. Sweeney, 2 Daly, 200.

2 Willard v. Rheinhardt, 2 E. D. Smith, 148.

3 Carpenter v. Taylor, 1 Hilton, 193.

4 Wintermute v. Clarke, 5 Sandf., 242; Taylor v. Monnot, 4 Duer, 116. Doc v. Lansing, 4 Campb. R., 77; Calye's Case, 8 Co. R., 32; Dausey v. Richardson, 2 Ellis & Black., 144.

Thompson v. Lacy, 3 Barn. and Ald., 283; 2 Daly, 15; Smith v. Scott, 9 Bing., 14; 2 Moo. & S., 35.

7 Cromwell v. Stephens, 2 Daly, 15; Parkhurst v. Foster, 1 Salk., 387; 5

Sandf.,

242.

Bac. Abr., tit. Inns and Innkeepers, c. 5, 6.

a guest.

3

The writ was founded on the custom of the realm, according to the tenor of which the keeper of an inn for the entertainment of travellers, was bound to take care of the goods and chattels of his guest, within his inn, without loss or damage, so that no injury should ariso by any means through his default, or that of his servants.2 The action against the innkeeper was not, however, confined to the guest himself; for it was early held that a master may maintain an action against an innkeeper, on the general custom, for money lost while his servant was the innkeeper's guest; and for goods lost under the same circumstances. In more recent cases, it is adjudged that the owner may reeover for goods entrusted by his servant, as a guest, to an innkeeper; 5 and also, where the servant was robbed of his master's money, though the master was a corporation that could not in fact be the guest of an innkeeper. An agent or friend, being a bailee of the money or goods, may also maintain an action for them. And a bailee of the goods for hire, is the only person entitled to hold the innkeeper under the strict rule of the common law. He is the party in possession.

§ 456. It is a question of fact whether or not a man is to be deemed a guest, in the legal sense of that term, where he sojourns for some time in a house which is kept both as a boarding-house, and as a common inn for transient guests. He is to be deemed a guest, though he eats at the table set for the weekly boarders, where he is not notified of the usage of the house." Received as a boarder, he cannot be treated as a guest; he is not subject to the liabilities, nor is he entitled to the pro

Calye's Case, 8 Rep., 32.

2 Bedle v. Morris, Cro. Jac., 224; Cross v. Andrews, Cro. Eliz., 622.

3 Bedle v. Morris, Cro Jac., 224.

4 Bennett v. Mellor, 5 Term R., 273; Piper v. Manney, 21 Wend., 282; Needles v. Howard, 1 E. D. Smith, 54.

5 Mason v. Thompson, 8 Pick. R., 280.

6 Towson v. The Havre de Grace Bank, 6 Harr. and John., 47; Berkshire Woollen Co. v. Proctor, 7 Cush. 417, 424. Where an agent or servant of a corporation, in its employment, becomes the guest of an innkeeper and is robbed of his principal's money, the principal is entitled to recover on the samo ground and under the same rulo of law, as though he or it were the guest. In Bedlo v. Morris, Yelv., 162, the court say: "And 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 owner shall have the action." S. C. Cro. Jac., 224. The innkeeper's liability for money lost in his house is not limited to sums necessary and designed for ordinary travelling expenses.

* Coykendall v. Eaton, 55 Barb., 188; 37 How. Pr., 438; 40 How. Pr.,

9 Hall v. Pike, 100 Mass., 495.

tection of a traveller. Being received as a guest, and being in reality a traveller, he does not lose his relation or rights, by making a contract for his board by the week. And yet it is quite evident that he must cease to be a guest where he sojourns for a definite period or for a season in a public house, under a special agreement defining his accommodations and fixing the price of his board, as with ordinary boarders. Merc lapse of time will not have the same effect, nor will the fact that the traveller has reached the end of his journey and is no longer a wayfaring man. The circumstances, the duration of the sojourn, and the nature of the contract, are to be considered."

§ 457. The attendants at an evening ball given at an inn, are not travellers, and they are not guests, where the innkeeper by an agreement with a company furnishes rooms and supper for a certain price, and tickets are issued and sold at so much each, to the members and friends of the company. The special contract creates a new and different relation from that which ordinarily arises between the innkeeper and his guest."

When a special agreement is made with an innkeeper, specifying the accommodations to be furnished, and the terms for certain days in the week, in the prosecution of a special business, the relation is not that of innkeeper and guest. The relation is also modified when the agree ment transfers the innkeeper's duty to the guest; as where the latter hires a room for the purpose of exhibiting and selling goods, and takes the key and with it the personal care of his property."

§ 458. A person becomes a guest by entering an inn and obtaining refreshments of any kind; as where he purchases liquors, and lays down

1 Chamberlain v. Masterson, 26 Ala., 371; Ewart v. Stark, 8 Rich., 423.

2 Berkshire Woollen Co. v. Proctor, 7 Cush., 417, 423; Pinkerton v. Woodward, 33 Cala., 557; Norcross v. Norcross, 53 Maine, 163.

Bacon's Abr., tit. Inns and Innkeepers, c. 5 and 6; Roll. Abr., 3; Mowers

v. Fethers, G1 N. Y., 34.

4 Carter v. Hobbs, 12 Mich., 52; relates to a fireman's ball.

Washburn v. Jones, 14 Barb., 193; distinguished in Mowers v. Fethers, 61 N. Y., 34; 6 Lansing, 112, reversed.

6 Burgess v. Clements, 4 Maule & Selw., 306. In this case the guest obtained a private room in an inn, selected by himself for the purpose of exhibiting to his customers his goods, jewelry, and was permitted to take the key that he might lock the door when he went out. Omitting to do this the goods were stolen; and it was left to the jury to determine whether under the circumstances of the case the plaintiff had not discharged the defendant, or assumed the care of his own property, and held well submitted. In Mowers v. Fethers, supra, the owner of a stallion hired a stall for him on certain days of the week and board for his keeper, and the latter took care of the horse and kept the key of the stable; and it was held that the relation of innkeeper and guest did not