bility of an innkeeper for the loss of the goods of his guest is founded is both by the civil and common law, to compel the innkeeper to take care that no improper person be admitted into his house, and to prevent collusion between him and other persons." Armistead v. White, 6 Eng. L. &. Eq. 349, was an action against an innkeeper, and the judge charged the jury that if the owner of the goods was guilty of gross negligence, the innkeeper was discharged. The court held the instructions were sufficiently favorable to the plaintiff, and queried whether it was necessary that the negligence of the plaintiff should be gross, to discharge the defendant. It is not easy to understand why the cause should have been left to the jury in this way, if the doctrine of the prior case of Dawson v. Channey, 5 Ad. & El., N. S., 165, had been recognized for law, and it is worthy of remark that no allusion is made to Dawson v. Chamney, supra, in the report of Armistead v. White, supra. In Mason v. Thompson, 9 Pick. 280, 20 Am. D. 471, it was decided that an innkeeper is liable for the loss of his guest's goods committed to his care, unless the loss is caused by the act of God or the common enemy, or by the fault of the guest. And Wilde, J., delivering the opinion of the court, says that this rule may undoubtedly in some cases subject the innkeeper to loss without any negligence or default on his part; that innkeepers as well as common carriers are regarded as insurers of property committed to their care, and are bound to make restitution for any loss or injury not caused by the act of God or the common enemy, or the neglect or fault of the owner. And it was decided in Washburn v. Jones, 14 Barb. 193, that an innkeeper is liable for all losses and damages happening, even without his default, excepting such as are caused by inevitable accident or the public enemy. The question was very fully and ably discussed in the recent case of Shaw v. Berry, 31 Me. 478 (52 Am. Dec. 628), and the court there came to the conclusion that to discharge an innkeeper from liability for the loss of goods in his charge it is not sufficient for him to show that the loss did not happen by his neglect or default, but that he must go further and show that it happened by the fault, direct or indirect, of the owner. The leading case on this subject is Calye's Case, 8 Co. 32, a, in which the point resolved was, that if a horse is put out to pasture at the request of the owner by an innkeeper, and is stolen, the innkeeper is not liable, because the horse, not being infra hospitium, is not in the charge and custody of the innkeeper as such, and his liability as an innkeeper does not attach. The report cites the words of the old writ, and states that by it all the cases concerning hostlers may be decided. The part of the writ which bore on the point resolved was that which limits the liability of the innkeeper, by the custom of the realm, to goods of the guest infra hospitium; and in commenting on the language of the writ, the reporter says that "the innkeeper shall not be charged unless there be a default in him or his servants in the well and safe-keeping and custody of the guest's goods within his common inn; for the innkeeper is bound in law to keep them safe there, without any stealing or purloining, but ought to keep his goods and chattels there in safety." Considering the connection of these remarks with the point resolved in the case, we think they could not have been intended to lay down any rule defining the extent of the innkeeper's liability for goods in his custody as such, but merely to state that his liability was confined to goods deposited in the inn. The case then proceeds to state an exception to the rule that the goods within the common inn the innkeeper ought to keep in safety, to wit, that if the goods are stolen by one whom the guest brings with him, the innkeeper is not liable, for then the fault is the guest's. There is no statement in the report that actual negligence is necessary to charge the innkeeper, or that he can discharge himself by showing that the goods were not lost by his actual negligence. The language of the old writ has sometimes been made the ground of an inference that there must be actual negligence to charge an innkeeper. The writ recites, "that by the custom of the realm, innkeepers are bound to keep the goods of their guests within their common inn, without subtraction or loss, night and day, ita quod pro defectu hujus modi hospitatorum sed servientium suorum"-no damage shall in any manner befall such guest. The innkeeper is bound to keep the goods of his servants. The argument is, that the term pro defectu implies actual fault and negligence. But the innkeeper is sued for neglecting to perform his legal duty, and the question occurs. What is the duty which the law and the custom of the realm imposes on him? If the law holds him to keep the goods of his guest at all events, except in case where the loss happens by the act of God or the public enemy, or by the fault of the guest, then if the goods are lost by mere accident, or by robbery, without any want of actual care on his part, the innkeeper has still failed to perform his legal obligation, and the goods are lost by his neglect and failure to perform the duty which the law imposes. The law, in such case, charges the innkeeper with the duty of keeping the goods safely, and imputes to him the fault, if they are lost or damaged. In this view of their meaning these words of the writ are by no means idle and unmeaning because the innkeeper is not in all cases liable for the loss of goods intrusted to his care. The loss may happen by the act of God, by the public enemy, or by the fault of the owner, and in that case the damage does not happen by the default of the innkeeper. If the declaration should merely allege that the goods were lost or damaged, without averring that the loss or damage happened by default of the innkeeper or his servants, it is apprehended that it would be substantially defective, and bad on demurrer, on the strictest rule which has been applied to the innkeeper's liability. This argument, from the form of pleading, might be urged with equal force to show that a common carrier is only liable for loss that happens by his actual negligence. In the settled form of declaring in a case against a carrier, it is alleged that the defendant, "neglecting his duty in that behalf, did not safely and securely carry," etc., "but so negligently and improperly conducted himself that by and through the negligence, carelessness, and default of the defendant," the goods were lost or damaged: Angell on Carriers, 429, note; Raphael v. Pickford, 5 Man. & G. 551, 2 Ch. Pl. 271, 272. Three different rules appear to be laid on this subject in different authorities. 1. That the innkeeper is prima facie liable for the loss of goods in his charge; but may discharge himself by showing that the goods were not lost by his negligence or default, and this is the ground taken by the defendant in the present case. This view of the law is sustained by Dawson v. Chamney, 5 Ad. & El., N. S. 165, and by Metcalf v. Hess, 14 Ill. 129. 2. That the innkeeper is discharged by showing how the accident happened and that it happened by inevitable accident or irresistible force, though the accident might not amount to what the law denominated the act of God, and the force might not be the power of a public enemy. This rule is countenanced by Merrit v. Claghorn, 23 Vt. 177, and Kisten v. Hildebrand, 9 B. Mon. 72, 48 Am. D. 416. 3. That the innkeeper is liable, unless the loss was caused by the act of God or the public enemy, or by the fault, direct or implied, of the guest. This rule is maintained in Burgess v. Clements, 4 Mau. & Sel. 306; Richmond v. Smith, 8 Barn. & Cress. 9; Farnworth v. Packwood, 1 Stark. 249; Kent v. Shuckard, 2 Barn. & Ad. 803; Armistead v. White, .6 Eng. L. & Eq. 349; Mason v. Thompson, 9 Pick. 280, 20 Am. D. 471; Shaw v. Berry, 31 Me. 478, 52 Am. Dec.. 628. Of text-writers, Story, though with hesitation, goes for the first rule. Kent states the third rule strongly, and Metcalf adopts the same and the civil law places the liability of the innkeeper and the common carrier on the same footing. It is somewhat singular that on a practical question, which must be as old as the rudiments of the law, there should be found at this day such di versity of opinion and decision. It is probably owing to the obscure way in which the subject is treated in the report of Calye's Case, 8 Co. 32, and the different interpretations which have been put on that case. On the whole, we think that the better rule is the strict one as laid down in the elaborate and very satisfactory case of Shaw v. Berry, supra. The weight of authority is heavily that way, and the policy and analogies of the law lead to the same conclusion. Judgment on the verdict. SLEEPING CAR COMPANY IS NOT LIABLE AS AN INNKEEPER PULLMAN PALACE CAR Co. v. SMITH Smith bought of defendant car company a sleeping car ticket from Chicago to St. Louis. During the trip $1,180 was stolen from his pocket. The court below instructed the jury that, if they found that plaintiff while sleeping in defendant's car on the trip was robbed as charged, they should find a verdict for him in such sum as they considered an ordinary and reasonable sum for a traveler to carry, for traveling purposes only, upon such a journey, with interest at six per cent for fourteen months. Verdict of $277 for plaintiff. SHELDON, J. The instruction which the court gave to the jury made the company responsible as insurer for the safety of the money, imposing upon it the severe liability of an innkeeper or common carrier, and it is the position which appellee's counsel take, that the relation between the parties in this case was that of innkeeper and guest, and that the liability of the company is that of an innkeeper. In order to ascertain whether the extraordinary responsibility claimed here exists, it becomes important to inquire into the nature of inns and guests, where this liability was imposed by the common law, and see whether the description of the same property applies here. Kent, in defining an inn, says: "It must be a house kept open publicly for the lodging and entertainment of travelers in general, for reasonable consideration. If a person lets lodgings only, and upon a previous contract with every person who comes, and does not afford entertainment for the public at large, indiscriminately, it is not a common inn." 2 Kent's Com. 595. This is substantially the same definition as is given in all the books upon the subject. But the keeper of a mere coffee-house, or private boarding or lodginghouse, is not an innkeeper, in the sense of the law. Id. 596: Dansey v. Richardson, 3 Ellis & B. 144; E. C. L., vol. 77; Holder v. Souldby, 98 E. C. L. 254; Kisten v. Hildebrand, 9 B. Monr. 72, 48 Am. D. 416. It must be a common inn, that is, an inn kept for travelers generally, and not merely for a short season of the year, and for select persons who are lodgers. Story on Bailm. #475, and cases cited in note. The duty of innkeepers extends chiefly to the entertaining and harboring of travelers, finding them victuals and lodgings, and securing the goods and effects of their guests; and, therefore, if one who keeps a common inn refuses either to receive a traveler as a guest into his house, or to find him victuals and lodging, upon his tendering him a reasonable price for the same, he is not only liable to render damages for the injury in an action on the case, at the suit of the party grieved, but also may be indicted and fined at the suit of the king. 3 Bac. Abr., Inns and Innkeepers, C. The custody of the goods of his guest is part and parcel of the innkeeper's contract to feed, lodge and accommodate the guest for a suitable reward. 2 Kent's Com. 592. From the authorities already cited, it is manifest that this Pullman palace car falls quite short of filling the character of a common inn, and the Pullman Palace Car Company, that of an innkeeper. It does not, like the innkeeper, undertake to accommodate the traveling public, indiscriminately, with lodging and entertainment. It only undertakes to accommodate a certain class, those who have already paid their fare and are provided with a first-class ticket, entitling them to ride to a particular place. It does not undertake to furnish victuals and lodging, but lodging alone, as we understand. There is a dining car attached to the train, as shown, but not owned by the Pullman Company, nor run by them. It belongs to another company, the Chicago and Alton Dining Car Association. Appellant, as we understand, furnishes no accommodation whatever, save the use of the berth and bed, and a place and conveniences for toilet purposes. We would not have it implied, however, that even were these eating accommodations furnished by appellant, it would vary our decision; but the not furnishing entertainment is a lack of one of the features of an inn. The innkeeper is obliged to receive and care for all the goods and property of the traveler which he may choose to take with him upon the journey. Appellant does not receive pay for, nor undertake to care for, any property or goods whatever, and notoriously refuses to do so. The custody of the goods of the traveler is not, as in the case of the innkeeper, accessory to the principal contract to feed, lodge and accommodate the guest for a suitable reward, because no such contract is made. The same necessity does not exist here, as in the case of a common inn. At the time when this custom of an innkeeper's liability had |