#### NEAL AND RICHARDSON vs. THOMAS WILCOX.

An inn-keepor, by the custom of the land, is liable as an insurer for the goods and animals which his guest has with him for the purposes of the journey.

But if his customer is only a boarder, or the goods and animals are entrusted to the landlord upon a special contract, or if they are not placed in the van or its appurtenances to be kept, he is only liable for negligence, as any other bailee.

Hence, an inn-keeper is not liable, without proof of negligence, for the loss of a mule, put, by a “ drov.er,” into a lot belonging to the landlord, separate from the inn, to be kept under a special agreement.

ActioN on the case for the loss of a mule, tried before *147SauNEERS, J., at the Spring Term, 1856, of Jones Superior Court.

The plaintiffs declared on the custom, against the defendant as an inn-keeper. The plaintiffs were engaged in the business of buying and selling horses and mules. The defendant was the keeper of a tavern at Trenton, in the County of Jones. The plaintiff Neal had stopped at the tavern with his wife, and they were boarding there.' There was evidence tending to show that a drove of mules belonging to the plaintiffs were put into a lot adjoining the defendant’s stable-lot, and were fed by the plaintiffs themselves, with provender bought by themselves, and they were assisted in taking care of the animals by the landlord’s servants. "While Neal was temporarily absent, the mule in question got away from a boy belonging to the defendant, as he was taking it to water, and was lost. There was no allegation, or proof, that proper diligence had not been used to recover the animal.

His Honor charged the jury that, if the defendant held himself out as a public inn-keeper, and one of the plaintiffs was his guest, and the mule, at the time, was in his keeping, and had escaped, defendant would be liable for the loss ; but if the plaintiff was a boarder, and had the privilege of the defendant’s lot, and was himself the keeper of the mule, then he would not be answerable.

Yerdict and j udgment for defendant. Appeal.

Donnell, for plaintiffs.

No counsel for defendant in this Court.

Pearson, J.

This is an action on the case, on the “ custom of the land,” against the defendant, as an inn-keeper, for the loss of a mule. In this action, on the ground of public policy, common carriers and inn-keepers are treated as insurers, and are liable, except “ for the acts of God, and the enemies of the State,” without proof of negligence. In which respect it differs from an ordinary action on the case against a bailee. In our case, there being no proof of negligence, the plaintiff *148properly declared “ on the custom.” If he could have made this proof, it would have been, most proper to declare on the special case; for a recovery in that action may be made against an inn-keeper, who is guilty of negligence, in many instances, where he would not be liable in “case” on the custom: for instance — one takes boarding at an inn, on a special contract; his goods are lost, the inn-keeper is not liable “ on the custom,” but is liable in a special action on the case, if negligepce be proved. So, if one leave a trunk or carriage to be kept by an inn-keeper, or if one deliver a flock of sheep, or a drove of mules, or horses, to an inn-keeper to be pastured, ■he is only liable as bailee, on proof of negligence.

The ground of public policy, on which an action on the case “ on the custom” is given against inn-keepers, is that persons who are travelling through the country are under a necessity of putting up at inns for entertainment — t/ranse%m-tes causa hosjpitandi, (from wliich last word they are called “ guests,”) without knowing anything about the character of the house; for which reason the law gives an assurance of the safety of their property — that is, the goods and animals (bona et caballa) which they have with them for the purposes of their journey.

The reason restricts this action to guests as distinguished from boarders, who sojourn at an inn on a special contract. 3 Bac. Abr. 666, “Inns.” It is sometimes difficult to draw the line between guests and boarders. They frequently run into each other, like light and shade. So, the line between a common carrier and a bailee to carry, is sometimes scarcely perceptible; but the law makes the distinction, and it is the province of the Judge to draw the line. A transient customer at an inn, although he be not a traveller or stranger, is considered as a guest; a lodger, who sojourns at an inn, and takes a room for a specified time, and pays for his lodging, on a special agreement — as, by the month or week, is a boarder. Bennett v. Wilson, 5 T. R. 273.

So, the reason restricts the action to one who comes tfor entertainment — causa hosjpitandi. If one peddling merchandise *149puts up at an inn, and, besides his sleeping apartment, takes a separate room in which to show and sell articles — clocks and watches, for instance — these articles are not' within the protection of the rule. Burgess v. Clements, 4 M. and S. 306. So, if one having a drove of horses or hogs to sell, puts up at an inn, and, besides entertainment for himself, procures from the landlord a lot in which to keep his animals, for the purpose of showing and selling them, they are not specially protected; and it makes no difference whether, by the agreement, the landlord has them fed, or whether the- drover buys provender of the landlord or a third person, and feeds them himself ; for, as Lord ElleNboeougu says, in the above case, “ An inn-keeper is not bound by law to find show-rooms for his guests, but only convenient lodgi'ng-rooms and lodging.” The rule is restricted to such goods and animals as the guest carries with him for the purposes of his journey; “a flock of sheep is not comprehended among the bona et eatalla transe-úntes, which an inn-keeper is bound to receive and protect. Hanby v. Smith, 25 Wendell 642. If such articles are received, the inn-keeper is only liable for neglect as a bailee. The policy fixing this special liability of inn-keepers is to encourage travelling and intercourse among the citizens, and does not reach so far as to take in considerations of trade and commerce.

So the reason restricts the action to the things that are in the house and stables — infra hospitium, and does not extend to a horse that is put to grass according to an understanding between the inn-keeper and the guest. Calye’s case, 8 Rep. 32. This applies to horses and mules put into a lot by agreement of the parties.

From these principles, it is clear that the plaintiffs have no right to complain of his Honor’s charge. The defendant had a right to expect him to be more specific in respect to the distinction between a guest and a boarder — what things are within the protection of the rule,.and vdiat are left to the liability of an ordinary bailee, and what place is within the inn — infra hospitiwn.

*150Upon all these points, according to the facts found by the jury, the defendant was entitled to a verdict. Any one of them was sufficient for his purpose. There is no error.

Pee, CubxaM. Judgment affirmed.