the company had no right to prevent him from getting down at any intermediate station(f).

680 Duties and responsibilities of common ferrymen.-A common ferryman is a common carrier, and is bound to provide safe and secure ferryboats, and safe slips and landing-stages, and all proper means and appliances for the safe transit of persons who may have occasion to use the ferry for themselves, or for the transit of their horses and carriages, luggage and merchandise(f). Where, therefore, the defendants, as ferrymen, used steam-boats for transit across the river Mersey, from which passengers and animals could not safely land without landingstages and slips, and they provided an insecure hand-rail to a landingstage, which broke and caused the death of the plaintiff's mare, it was held that they were bound to make good the loss (g).

681 Loss of goods by common ferrymen and common hoymen.-Common ferrymen and common hoymen, being common carriers, are responsible for the safe delivery of goods intrusted to them for conveyance, unless they have been prevented by storm, lightning, tempest, or inevitable accident(h). In Mouse's case it was resolved, "that if the

(f) Reg. v. Frere, 4 Ell. & Bl. 598. As to the construction of this by-law, see Jennings v. Gt. Northern Rail. Co., L. R., 1 Q. B. 7; Dearden v. Townsend, ibid., 10.

(f) Jabine v. Midgett, 25 Ark. 475; Shinmer v. Merry, 23 Iowa, 90; Whitmore v. Bowman, 4 Greene (Iowa), 148; Sanders v. Young, 1 Head (Tenn.), 219; May v. Hanson, 5 Cal. 360; Richards v. Fugua, 28 Miss. 792; Osborn v. Union Ferry Co., 53 Barb. (N. Y.) 629. Not only must a ferry company provide safe and secure boats, slips and landing bridges, and all other necessary appliances for the safe transit of the public, but they must use the utmost care, vigilance and skill in the management of the same; and for any neglect or failure to exercise such care which results in injury to a person carried, the company will be liable. Hazman v. Hoboken Land and Improvement Co., 50 N. Y. 53.

A miller who keeps a ferry for his own use and the convenience of his customers, charging no ferriage, is not a common carrier, and is not liable as such. Self v. Dunn, 42 Ga. 528. But a private ferryman may incur all the liabilities of a common carrier by undertaking to transport for hire, all persons indifferently, with their carriages and goods. Hall v. Renfro, 3 Met. (Ky.) 51.

(g) Willoughby v. Horridge, 12 C. B. 751; 22 Law J., C. P. 90. Co., 35 N. Y. 485.

See Clarke v. Union Ferry

(h) Amies v. Stevens, 1 Str. 128; Bac. Abr. CARRIERS, B. Oakley v. Portsmouth, etc., Steam Packet Co., ante, p. 575. "Ferrymen, like all other common carriers, are regarded in law as insurers of the property committed to their care, and are responsible for all losses or damage to it, which do not come within the excepted cases of the acts of God or the public enemy. As a common carrier a public ferryman is compelled to receive all goods and property offered to him for transportation, and when he has received property for that purpose the presumption is that it is in his charge as a common carrier, and the burden is upon him of showing that he has not had such control over it as invests him with the character of a common carrier in respect to it. His responsibility is not modified or diminished by the fact that it was accompanied by the owner, unless it affirmatively appears that the owner did not trust the care of the same to him, but retained the exclusive management and control of it himself. When the care and control of the property has not been intrusted to him, but retained by the owner, he is not, if loss occurs, chargeable as a common carrier or an insurer, but is only answerable for actual negligence; and if, in such case, the owner, by his negli. gence or wilful wrong, contributed to the loss so that but for it the loss would not have happened, he will not be entitled to recover except where the direct cause of the loss is the

ferryman surcharge the barge, it is lawful for any of the passengers in time of accident and necessity to cast the things out of the barge for safety of the lives of the passengers; and the owners shall have their remedy upon the surcharge against the ferryman, for the fault was in him upon the surcharge; but if no surcharge was, but the danger accrued only by the act of God, as by tempest, no fault being in the ferryman, every one ought to bear his loss for the safeguard and life of a man, for 'interest republicæ quod homines conserventur""(i).

SECTION II.

NEGLIGENCE OF COMMON INNKEEPERS AND LODGING-HOUSE KEEPERS.

682 of the duty of common innkeepers to provide food and shelter for travellers and wayfarers.-Every man who opens an inn by the wayside, and professes to exercise the business and employment of a common innkeeper, is, by the custom of the realm, bound to afford such shelter and accommodation as he possesses to all travellers(k) who apply for it and tender, or are able and ready to pay, the customary hire, and are not drunk or disorderly, or laboring under contagious or infectious diseases; and if he neglects or refuses so to do, he is liable to an action for the recovery of any damages that may have been sustained by reason of such refusal; and also to an indictment at common law(). The innkeeper is bound, moreover, to receive and

omission of the ferryman, after becoming aware of the owner's negligence, to use a proper degree of care to avoid the consequences of such negligence." Harvey v. Rose, 26 Ark. 3. Shearman and Redf. on Neg., ss. 25, 26. White v. Winisimmet Co., 7 Cush. (Mass.) 155. Willett's admr. v. Buffalo & Rochester R. R. Co., 14 Barb. (N. Y.) 585. Smith v. Smith, 3 Pick. 621. Wyckoff v. Queens County Ferry Co.. 52 N. Y. 32.

There are a class of cases which hold that the ferryman is chargeable as a common carrier for the absolute safety of the property retained by the passenger in his own custody and under his control while being transported by the former; and that the owner, in taking care of the property during the passage of the boat, may be regarded as a mere agent of the ferry. man. Fisher v. Clisbee, 12 Ill. 344. Powell v. Mills, 37 Miss. 691. Wilson v. Hamilton, 4 Ohio St. 722. And see Albright v. Penn, 14 Texas, 290. This doctrine has been expressly dis approved by the court of last resort in the State of New York. See Wyckoff v. Queens County Ferry Co., 52 N. Y. 32, 34.

(i) Mouse's case, 12 Co. 63.

(k) Taylor v. Humphreys, 30 Law J., M. C. 242. See Copley v. Burton, L. R., 5 C. P. 489. See Pinkerton v. Woodward, 33 Cal. 557.

(2) Hawthorn v. Hammond, 1 C. & K. 404. Howell v. Jackson, 6 C. & P. 725. Rex v. Ivens, 7 C. & P. 219.

provide for the horses of all travellers who alight at his inn, if he has room in his stables; even, it is said, of those who choose only to put up their horses, resorting elsewhere for lodging and entertainment. But he is not bound to receive the goods of a person who professes to merely make use of the inn as a place of deposit, and not to lodge there as a guest(m). Neither is he bound to provide for his guest the precise room that the latter may choose to select, nor provide him with a bedroom, if he declares it to be his intention to sit up all night. All that he is required to do is to find reasonable and proper accommodation for his guests; and if he tenders such accommodation, and the guest refuses it, he may compel the latter to quit the inn, and seek for accommodation and lodging elsewhere(n).

The extent of the public duty and obligation of the innkeeper depends mainly upon the nature of his public profession. If he has only a stable for a horse he is not bound to receive a carriage. If he professes only to receive ordinary luggage accompanying the person of a traveller, he is not bound to take in articles of unusual, extraordinary, and inconvenient bulk, nor goods which do not accompany the person of the guest(o).

The innkeeper cannot discharge himself of the duty and burthen imposed upon him by the common law by express notice to his guests(p), or under pretence of sickness, want of understanding or absence from home(9); but if an infant keeps a common inn, an action upon the custom of inns will not lie against him, for his privilege of infancy shall be preferred, and take place of the custom("). 683 Who may be said to be a common innkeeper.-" Every person who makes it his business to entertain travellers and passengers, and provide lodging and necessaries for them and their horses, and attendants, is a common innkeeper; and it is in no way material whether he have any sign before his door or not "(s). A London "coffeehouse," where beds and provisions are furnished by the day or for the night, or for a longer period, to persons in certain stations of life,

(m) Saunders v. Plummer, Orl. Bridg. 227.

(n) Fell v. Knight, 8 M. & W. 276.

(0) Broadwood v. Granara, 10 Exch. 423; 24 Law J., Exch. 1.

(p) Morgan v. Ravey, 6 H. & N. 265; 30 Law J., Exch. 131. Bodwell v. Bragg, 29 Iowa,

(8) Bac. Abr. INNS, B. Parker v. Flint, 12 Mod. 255. Dickerson v. Rodgers, 4 Humph. 179. Overseers of Crown Point v. Warner, 3 Hill, 150. See Commonwealth v. Weatherbee, 101 Mass. 214; Walling v. Potter, 35 Conn. 183; People v. Jones, 54 Barb. (N. Y.) 311; Cromwell v. Stephens, 2 Daly (N. Y. C. P.), 15; Krohn v. Sweeny. id. 200.

who may think fit to apply for them, is a common inn(t). But if a man merely opens a house for the sale of provisions and refreshments, and does not profess to furnish beds and lodging for the night, he is not a common innkeeper(u). And if he professes to let only private lodgings, and does not offer his house to the public as a place of reception, and entertainment, and lodging, for all comers who are able and willing to pay for the accommodation offered, he cannot be said to keep a common inn(uu).

684 Duty of the innkeeper to protect his guest from robbery and theft.-It has been justly observed by the civilians, that the common wants and necessities of mankind compel men to trust valuable property to the keepers of public inns, who have frequent opportunities of combining and colluding with thieves, to the prejudice of those who trust them; and it was thought right in the Roman law to deprive such persons of the temptation to do wrong, and to compel them to be honest by making them responsible for the safety of the goods intrusted to their keeping. By a public edict of the Roman prætor it was ordained, that if shipmasters and carriers, innkeepers and stablekeepers, did not restore what they had received to keep safe, he would give judgment againt them(r).

The construction put upon this edict was, not that the shipmaster, carrier, or innkeeper was bound to deliver the goods safe at all events; but that he was bound to deliver them, unless prevented by a fatale damnum, or a loss by what was termed the decree of fate, or order of destiny, such as a loss by lightning, or an earthquake, or a sudden inundation that could not have been foreseen, and that no human care or skill could have provided against or avoided; or an irresistible attack by pirates and hostile forces, the enemies of the state. The spirit of this edict has been universally adopted by the jurisprudence of continental Europe, and was introduced at an early period into our common law.

(t) Thompson v. Lacy, 3 B. & Ald. 283.

(u) Doe v. Laming, 4 Campb. 77. Carpenter v. Taylor, 1 Hilt. N. Y. C. P.) 193. People Jones, 54 Barb. (N. Y.) 31.

(uu) One who merely keeps a lodging house for a season, as at a watering place, is not an innkeeper. Southwood v. Myers. 3 Bush (Ky.), 681.

Nor is one who entertains travellers occasionally for pay, an innkeeper, if he does not hold himself out as such. Lyon v. Smith, 1 Morris, 184. But see Howth v. Franklin, 20 Tex. 798.

(x) “Ait Prætor Nautæ, caupones, stabularii, quod cujusque salvum fore receperint nisi restituunt in eos judicium dabo."-Dig. lib. 4, tit. 9. "Maxima est utilitas hujus edicti; quia necesse est plerumque eorum fidem sequi, et res custodiæ eorum committere et

nisi hoc esset statutum materia daretur cum furibus adversus eos, quos recipiunt, coeundi.”Dig. lib. 4, tit. 9, s. 1.

The original writ against an hostler or innkeeper for the loss of the goods of his guest declares that "secundem legem et consuetudinem regni nostri Angliæ hospitatores qui hospitia communia tenent ad hospitandos homines, per partes ubi hujusmodi hospitia existunt transeuntes, et in eisdem hospitantes, eorum bona et catalla infra hospitia illa existentia absque subtractione, seu amissione, custodire die et nocte tenentur, ita quod pro defectu hujusmodi hospitatorum seu servientum suorum hospitibus hujusmodi damnum non eveniat ullo modo "(y).

From the terms of this writ, which is the foundation of the common law concerning hostlers, it was resolved in Calye's case(2):—

"1. That the lodging ought to be a common inn: for if a man be lodged, at his request, with another who is not an innholder, if he be robbed in his house by the servants of him who lodged him, or any other, he shall not answer for it, for the words are, 'hospitatores qui communia hospitia tenent.' And so are the books, etc. And the plaintiff ought to declare that the defendant keeps commune hospitium.'

"2. That it appears from the words of the writ, that common inns are instituted for passengers and wayfaring men, 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, et in eisdem hospitantes,' etc.

"3. That the words eorum bona et catalla infra hospitia illa existentia' show that the innholder, by law, shall answer for nothing that is out of his inn, but only for those things which are 'infra hospitium,' and the books agree that the innholder is bound to answer for himself and for his family of the chambers and stables, for they are infra hospitium;' and that if an innholder lodges a man and his horse, and the owner requires the horse to be put to pasture, and there

(y) Reg. Br. F. N. B. 94, a, b.

(z) 8 Co. 32; 1 Smith's L. C., 6th ed. 105. An innkeeper is liable for all injuries to the goods of his guests happening in his inn, unless caused by the act of God, the public enemy, or the fault, direct or implied, of the guest himself. Sibley v. Aldrich, 33 N. H. 553. Hulett v. Swift. 23 N. Y. 571. Packard v. Northcraft, 2 Met. (Ky.) 439. Shaw v. Berry, 31 Me. 478. Sasseen v. Clark, 37 Ga. 242. Ramaley v. Leland, 43 N. Y. 539. Purvis v. Coleman, 21 N. Y. 111, 112, 117. Wells v. Steam Navigation Co., 2 N. Y. 204, 209. Berkshire Woolen Co. v. Proctor, 7 Cush. 427. Mason v. Thompson, 9 Pick. 280. Towson v. Havre de Grace Bank, 6 Harr. & Johns. 47. Thickston v. Howard, 8 Blackf. 535, 537. Kiston v. Hildebrand, 9 B. Mon. 72. Clute v. Wiggins, 14 Johns. 175. Grinnell v. Cook, 3 Hill, 488.

The innkeeper's common-law liability as an insurer extends to wearing apparel, jewelry, money, and even to the horses, wheat, butter and other articles of bulk belonging to the guest, if received into his care and within his place of entertainment. Wilkins v. Earle, 44 N. Y. 172. AD. VOL. I.-39