#### Drope vs. Thaire.

Pasch. 2. Car.

A MASTER brought his action and declared quod consuetudo regnis suit that hosts should keep the goods of their guests ubi hujusmodi hospitii tenentur transeuntes and shewed that one Rowly, his servant, lodged in the inn of the defendant, who was a common hostler, and had with him certain goods of the plaintiff, his master, which through negligence were stolen: *Verdict for the plaintiff. Boulstred moved in arrest of judgment.

1. It is not alledged that the servant was transient, viz. travelling, according to Reg. 154. Kelly and Clark’s case. P. 4. Jac. rot. 244. One came to an inn and left his goods there, and said he would return in two or three days and went away; the goods were stolen: no action lies. It would have been otherwise if he had said that he would return at night; and before night the goods had been stolen, as in Sir William Sand’s case. T. 7 Jac. rot. 1535. Bendle and Morris. The master brought his action for his goods stolen from his servant lodging in an inn; but there the custom was alledged that an hostler ought to keep not only, as here, the goods of his guests, but also other goods left in his possession. So is the precedent in Coke’s entries, fol. 347. Ita quod damnum non adveniat hospitibus nec aliquibus aliis, &c.

Crew, C. J. Doderidge, J. and Jones, J. thought the action lies for the master.

Jones, J.

In 29 El. and many other cases, it has been adjudged that if the servant be robbed of the goods of his master, he shall have his action against the hundred, upon the statute of Winchester. And this is a stronger case.

Doderidge, J.

Both the master and servant have an action. 18 E. 2. F. Coron. If a servant be robbed, the master or the servant shall have an appeal, and he who will first bring it, shall recover and preclude the other.

Jones, J. The servant may also have his action.

Doderidge, J. Two merchants are joint tenants of goods; one is robbed of them: both may have an action or appeal. The coming to the inn does not shew that he meant to take it for his inn. If one comes to an inn and leaves his horse there, and goes about his business, and in the mean while the horse is stolen, he shall have an action, although he came not to lodge there. And as to the objection that it is not alledged that he was transiens; it does not signify any thing; perhaps he was at the end of his *128journey. If clothiers come to London to sell cloth, and stay a week or two; they shall have their action against the host, if he be a common innkeeper.

Jones, J.

concurred: otherwise if they were to stay half a year and board there. But if they were to stay half a year without making any agreement for board; they would be within the custom.

Doderidge, J. The misrecital of the custom is nothing, for this is the common law.

Judgment for the plaintiff. Antea, p. 88. 2 Cr. 188. Mo. 877. Noy 126. Yelv. 162. 2 Cr. 164, 224. Co. Ent. 347. Poph. 179. Noy 79. Bendl. 163.