from his legal responsibility by a refusal to take care of his goods on the ground that there are suspected persons in the house for whose conduct he is not willing to be answerable.1 If, having room for him, he refuses to receive a guest, without a reasonable ground for his refusal, or on a false pretence that his house is full, he will be liable to an action, both civilly and criminally. An indictment lies against an innkeeper, who, having room in his house at the time, refuses to receive a traveler; and it is not necessary for the traveller to tender the price of his entertainment if his rejection is not placed on that ground. And it is no defence for the innkeeper that the guest was travelling on a Sunday, or at an hour of the night after the landlord had gone to bed; nor is it any defence that the guest refused to tell his name and abode, since the innkeeper has no right to insist upon knowing these particulars; but if the guest come in drunk, or behaves in an indecent or improper manner, the innkeeper in not bound to receive him.3

The innkeeper does not undertake absolutely to receive as guests all persons who come to his house, but only those who are capable of paying a compensation suitable to the accommodations provided. He has a right to demand prepayment; but if he hangs out a sign and opens his house for travellers, it is an implied engagement to entertain, on the same terms, all persons who travel that way; and upon this universal, assumpsit an action on the case will lie against him for damages, if he without good reason refuses to admit a traveler. The putting up of a sign is only a matter of evidence, and by no means necessary to prove that a house or hotel is really a common inn.7

§ 472. In a private action against an innkeeper for refusing a traveller lodgings for the night, it is proper to allego a tender of compensation, so as to take from the landlord every excuse for not receiving him. It should also be made to appear, that the plaintiff's application was not broader than his legal right; e. g., that he applied for reasonable accommodations; since he has no right to select and demand a particular apartment."

1 Jones on Bailm., 94.

2 Dyer, 158 b 1; Rex v. Ivens, 7 Carr. and Payne R., 213.

37 Carr. and Payne R., 213; Commonwealth v. Naylor, 34 Penn. St., 86; S. C., 2 Pars. Pa. Sel. Cas., 431.

• Thompson v. Lacy, 3 Barn, and Ald. R., 285.

9 Rep., 87.

63 Black. Com., 166.

75 Sand. R., 242; 3 Hill, R., 150; Howt v. Franklin, 20 Texas, 798.

8

* Fell.v. Knight, 8 Mees. and Welsb. R., 269. The right to lodge and be fed,

does not give a party the right to insist upon carrying on a business in a private or public house. Ambler v. Skinner, 7 Robt., 561; 61 N. Y., 34.

To sustain an indictment for not receiving a guest, there must also be a tender of compensation, unless the refusal is placed upon some other ground. In one of the old books the rule is laid down in these words: "If one who keeps a common inn refuse either to receive a traveller as a guest into his house or to find him victuals or lodging, upon his tendering him a reasonable price for the same, he is not only liable to render damages to the party aggrieved in an action on the case, but may also be indicted and fined at the suit of the king; and it is no way material whether he have a sign before his door or not, if he make it his business to entertain passengers." 2 The innkeeper is also liable to an indictment at common law as being guilty of a public nuisance, where he usually harbors thieves or persons of a scandalous reputation, or suffers frequent disorders in his house, or takes exorbitant prices.3

The innkeeper, as a general rule, has no right to exclude persons from entering the inn, and going into the common public rooms, on a lawful business. His house is a public resort. And yet it is his right, as it is his duty, to preserve quiet and order in the house; in the approaches to it, in its passages and apartments. He has the right also to defend his business against the agents of a rival inn, that seek to decoy away his

customers.

When a person applies for entertainment at an inn, and the innkeeper refuses to receive him because his house is already full, and the traveller nevertheless insists upon entering, saying that he will shift among the rest of the guests, and accordingly places his baggage in the chamber without the keeper's consent, where he is robbed, he does not in fact become a guest; and he does not become entitled to protection as a guest, where the host requires as a condition of his liability that the goods be placed in a particular room, under lock and key, and he refuses and retains them in his own custody. He cannot coerce the innkeeper beyond the limits of reason and fair dealing.

§ 473. Innkeeper's Lien. The law gives to the innkeeper a lien on the goods entrusted to him by his guest, for his reasonable charges. Holding him bound to receive and entertain travellers, and liable for

1 Rex v. Ivens, 7 Carr. and Payne, 213.

22 Hawkins' Pleas of the Crown, 267.

3 Idem; Baldwin v. State, 6 Ohio, 15; State v. Matthews, 2 Dev. and B. (N. C.) L., 424; South v. Grant, 7 N. J. L. (2 Hals.), 26.

608.

Markham v. Brown, 8 N. H., 523; Linkous v. Commonwealth, 9 Leigh R

Wendell v. Baxter, 12 Gray, 496; Joncks v. Coleman, 2 Sumner, 221. 6 Dyer, 158.

7 Bacon's Abr., Inns and Innkeepers, c. 4.

their goods under a strict rule of responsibility, the law gives him the means of securing a fair compensation for the entertainment which he supplies. He has a lien where he is liable as an innkeeper; and he is so liable only for goods entrusted to him by a guest. Accordingly he has no lien for the keeping of horses received by him from one of his neighbors, or from a person who does not become his guest.2 The relation of innkeeper and guest, is the foundation of the lien.3 The relation must exist; but it is not necessary that the owner of the goods should continue actually infra hospitium. The lien once created, will subsist as long as the relation continues, actually or constructively. It rests upon the goods of the guest; it does not justify a detention of the guest himself for any reckoning due, or the taking of any clothes or wearing apparel from off his person, as security for the same."

5

§ 474. The relation of innkeeper and guest being established, the lien covers the goods, baggage, and property of the guest, and all such things as the guest brings with him; it extends to whatever the guest brings and the innkeeper receives; it is not limited to property of the guest, or to things of material or intrinsic value. It covers such goods as a traveller ordinarily or naturally carries with him, and even peculiar things, where the innkeeper receives them without notice that they are the property of a third person; it does not cover a chattel subsequently hired by the guest and brought into the inn; and it is not defeated by showing that the guest wrongfully took the property from a third person. 10 The reason given is this: the innkeeper is bound to receive the guest, and cannot stop to investigate his title to the property he brings with him; 10 and, it may be added, he is also liable for the safe keeping of the goods, though they be the property of a third person.11

'Grinnell v. Cook, 3 Hill R., 488; Peet v. McGraw, 25 Wend., 653; Fox v. McGregor, 11 Barb., 41.

2 Grinnell v. Cook, supra; Ingallsbee v. Wood, 36 Barb., 452; S. C., 36 N. Y., 577.

3 Binns v. Pigot, 9 C. and P., 203; Smith v. Dearlove, 6 Com. B., 132. McDonald v. Edgerton, 5 Barb., 560.

Allen v. Smith, 12 Com. Bench N. S., 638; 9 Jur. N. S., 230, 1284; 11 W. R.,440. 6 Sunbolf v. Alford, 3 M. and W., 248; as to who are to be considered guests, see ante § 455-458.

7 Threlfall v. Borwick, 2 English (Moak) R., 689; Jones v. Morrill, 42 Barb., 623; 31 How. Pr., 639; Manning v. Hallenbake, 27 Wis., 202 ; Suead v. Watkins, 1 Com. B. N. S., 267; 37 Eng. Law and Eq., 384.

* Snead v. Watkins, supra, relating to a Letter Book belonging to the plaintiff. 9 Bacon's Abr., Inns and Innkeepers, tit. D; Broadwood v. Granara, 10 Exch., 417; 1 Jur. N. S., 19; 11 Barb., 41, 43; see Threlfall v. Borwick, supra.

10 Johnson v. Hill, 3 Stark., 172; 42 Barb., 623.

11 Needles v. Howard, 1 E. D. Smith, 54; 1 Lans., 397; 3 Hill, 485, 490.

The contract is one and indivisible. The compensation paid by the guest for his accommodations, covers the custody of his goods. And hence the innkeeper has a lien on the goods of his guest, for board, lodg ing, and wine supplied on his order. The guest not being an infant, the lien covers the fair value of the articles supplied to him, and is not limited to a charge for a reasonable room with board and lodgings, or a reasonable quantity of wine.2 The guest being an infant, the licn covers the innkeeper's reasonable charges, and nothing more.3

§ 475. The rule giving the innkeeper a lien on the goods brought to his inn, and not owned by the guest, was adopted with some hesitation; and some of the decisions would seem to countenance the theory that the innkeeper's lien on living chattels thus brought to his house, is to be regarded as specific-namely, as a lien for their keep. But the current of authority allows him to detain any parcel of the goods belonging to the guest, or brought with him, as security for his entire bill.5

The innkeeper waives or loses his lien, by suffering his guest to take away his goods, when he finally leaves the house, and the lien will not revive on his return with the goods to the inn. A tender of the amount due, extinguishes the lien."

§ 476. The innkeeper's lien upon the goods of his guest does not under the common law, clothe him with the right to sell them for the satisfaction of his charges; his remedy to enforce the lien is by an action in the nature of a bill in equity. Within the city of London he has such a right to sell by special custom, and beyond the city he has no such right by the general custom, which is the common law of the realm. Under the statute law of this State, innkeepers and carriers may have unclaimed baggage sold on due notice, and the proceeds applied first, to the payment of their charges and expenses, and the balance paid over to the overseers of the poor, subject to be reclaimed by the owner within seven years. And while there does not appear to be any reason to pre

1 Lane v. Sir Robert Cotton, 12 Mod. R., 480.

2 Proctor v. Nicholson, 7 C. and P., 67 ; 36 Barb., 452; 33 N. Y., 577.

3 Watson v. Cross, 2 Duvall (Ky.), 147.

4 Jolinson v. Hill, 3 Stark., 172; Turrill v. Crawley, 13 Q. B. (13 Adol. and Ellis, N. S.), 197; see Gump v. Showalter, 43 Penn. St., 507.

5 Young v. Kimball, 23 Penn. St., 193; Jones v. Morrill, 42 Barb., 623. Where several travel and put up together at an ina, the goods of one cannot be detained for the board of all. Clayton v. Butterfield, 10 Rich. (S. C.), 300; Hursh v. Byers, 29 Mo., 469.

(

6 Jones v. Thurloe, 8 Mod. R., 172; Bevan v. Waters, 3 Carr. and Payne, 520. 7 Gordon v. Cox, 7 C. and P., 172.

Fox v. McGregor, 11 Barb., 41; 1 Str., 556; Pothonier v. Dawson, 1 Holt N. P., 333; 2 Kent's Comm., 642; see Trust v. Pirsson, 1 Hilton, 232.

92 R. S. of N. Y., 934, 935, 6th ed. Ante § § 317, 279, 287.

vent the adoption of a rule permitting the innkeeper to sell the goods in his hands on which he has a lien, without suit, in like manner as a pledgee may sell, on reasonable notice; we do not find any sanction for that practice. On the contrary, our law requires a foreclosure by action; and it now permits a foreclosure in any court having jurisdiction of the amount.1

§ 477. By the statute law of this State, boarding-house keepers have the same lien as innkeepers have, upon the baggage and effects of a boarder for the board due. They stand in much the same relation, and the intent of the statute is to protect them as a class; 3 by giving to them the same right to detain the goods of a boarder, as the law gives to the innkeeper to detain the goods of a guest. The statute gives the lien for the amount due for board. And it is well understood that a remedy thus given is to be carried into effect according to the intention of the Legislature.

The statute has not changed the rule of liability. The keeper of a boarding-house is not held liable for the goods of a boarder under the same strict rule as the innkeeper is held for the goods of his guest. He is not an insurer; he fulfills his duty when he takes such care of the goods of a guest as a prudent householder would take; in guarding and protecting the house against thieves, and in the employment of trustworthy

1 Chapter 738, Laws of N. Y. of 1869. The judgment fixes the amount of the lien and orders a sale by a specified officer.

2 Chapter 446, Laws of 1860; 3 R. S., 817, 6th ed.

3 Cady v. McDowell, 1 Lausing, 484.

* Stewart v. McCready, 24 How. Pr., 62; Jones v. Morrill, 42 Barb., 623; S. C., 31 How. Pr., 639; the statute is modified in this particular.

Shafer v. Guest, 6 Robt., 264.

6 A literal interpretation of the New York statute would defeat the intention of the Legislature. Jones v. Morrill, supra; Stewart v. McCready, 24 How. Pr., 62. See Cross v. Wilkins, 43 N. H., 332; Bayley v. Merrill, 10 Allen (Mass.), 3C0; and Gump v. Showalter, 43 Penn. St., 507, interpreting like statutes of those States. Of course the keeper of a boarding-house has no lien at common law on the goods of a boarder. Southworth v. Myers, 3 Bush (Ky.), 681; and the livery keeper has none. Parsons v. Gingell, 4 Com. Bench, 545. Chapter 319, of the N. Y. Laws of 1876, qualifies the lien given to the keeper of a boarding"house in one respect; it provides that he shall not have a lien upon or right to detain any property the title to which shall not be in the boarder. The material section of the act now reads as follows:

1. The keeper of a boarding-honse shall have the same lien upon and right to detain the baggage and effects of any boarder to the same extent and in the same manner as innkeepers have such lien and right of detention; but nothing herein shall be deemed to give to any boarding-house keeper any lien upon or right to detain any property the title to which shall not be in such boarder.