Cady v. McDowell. took to warrant and defend. It is claimed, on the part of the appellant, that the covenant should not be construed so as to embrace this right which Reeves had before the plaintiff's grant, for the reason that it is evident that this was the right which the defendant intended to except and reserve from the grant. But the parties must be held to have intended just that, which is the legal effect of the instrument. This is clearly a reservation, and not an exception. There are cases, where, though the word "reservation" only is used, the courts will hold it to be an exception; as where the reservation is of a distinct and severable part of the thing granted, as in the case of Borst v. Empie (1 Seld. 33). But here the reservation is not of the thing granted, but only of something pertaining to the thing granted, or issuing out of it. This is the distinction between an exception and a reservation. And a reservation, as matter of law, being only to the grantor himself, it follows that the covenant here, covered all other outstanding rights. The defendant had notice to defend the action brought by Reeves, and failed to do so. He is, therefore, bound by that judgment, and this action was well brought. The judgment must, therefore, be affirmed. Judgment affirmed. JOHN P. CADY, Appellant, v. JOHN MCDOWELL, Respondent. (GENERAL TERM, SEVENTH DISTRICT, SEPTEMBER, 1869.) Plaintiff, who was a housekeeper, but not accustomed to take persons to board, upon the defendant's application, received the latter and his family, into his house, for an indefinite time, with a general understanding that he (plaintiff) was to be compensated for board and accommodations. Held, plaintiff was not a boarding-housekeeper within the meaning of the Laws of 1860 (chap. 446, p. 771), allowing a detention of the baggage and effects of boarders, for board due. The legal meaning of the term boarding-housekeeper explained. Cady. McDowell. APPEAL from a judgment upon the verdict of a jury. The plaintiff proved upon the trial the facts, as stated in the opinion, and the court directed a verdict for the plaintiff, to which the defendant duly excepted, &c., &c. W. E. Hughitt, for the appellant. Davie & Payne, for the respondent. Present-E. D. SMITH, DWIGHT and JOHNSON, JJ. By the Court-JOHNSON, J. The only question in this case, is, whether the defendant at the time the alleged cause of action arose, was the keeper of a boarding-house, within the meaning and intention of the act of the legislature of April 16, 1860. (4 Stat. at large, 680.) If he was such, he was authorized by that act to detain the property and effects in question, for the amount due him for the plaintiff's board. There is no dispute about the facts. The defendant was at the time the keeper of a grocery, and was also a housekeeper. The plaintiff was the brother of the defendant's wife, and had four children. He requested the defendant, to let him come to his house with his children, and live for a time, until he could arrange his affairs, which request was granted; and he went there and lived there with his children about five or six months. No arrangement was made in regard to the time the plaintiff was to remain or as to the price for the board, though it appears, that it was understood between the parties that compensation was to be made. The defendant at the time the plaintiff came there, had kept house only a few months, and had never at any time before or since taken or had any other boarder. Upon this state of facts, the question is fairly presented whether the defendant is within the purview of the statute. The act is entitled " an act for the protection of boarding-housekeepers." Who is a boarding-housekeeper, within the meaning and intention of this act? Is it every housekeeper who in a single instance takes an individual to board for a limited time, by way of accommodation, though for compensa Cady v. McDowell. tion, or who occasionally takes one or more persons in that way and in no other, but who does not make it his regular business or calling; or is it a person who belongs to a well understood class of persons, which makes the keeping of boarders a busi ness or calling, in whole or in part? I am clearly of the opinion, that it is the latter class only, that the statute was designed to protect, or that comes within its terins and mean ing. A boarding-house is not in common parlance, or in legal meaning, every private house where one or more boarders are kept occasionally only, and upon special considerations. But it is a quasi public house, where boarders are generally and habitually kept, and which is held out and known, as a place of entertainment of that kind. I do not find that this precise question has ever before arisen, so as to require judicial determination. But upon a question quite analogous, it has been held, that a person who does not hold himself out as an innkeeper, but who entertains travelers occasionally for pay, is not an innkeeper, nor liable as such. (Lyon v. Smith 1 Morris, 184.) It is, I apprehend, within the observation, if not the experience of almost every one, that persons frequently board with friends, and relatives, and even strangers, who are not supposed or understood to keep boarding-houses. It is only the keepers of boarding-houses as such, that come within this statute. The distinction between an inn and a boarding-house has been held to be, that in a boarding-house, the guest is under an express contract, at a certain rate, for a certain period of time, while at an inn the guest being on his way, is entertained from day to day, according to his business, upon an implied contract. The innkeeper is bound to receive every one who applies, if in a fit condition to be received, while the boarding-housekeeper is not bound to receive any one, except upon special contract. (Willard v. Reinhardt, 2 E. D. Smith, 148; 2 Kent's Com., 595; Thompson v. Lacy, 3 Barn. & Ald., 283; Holder v. Soulby, 8 J. Scott, N. S., 254; Dansey v. Richardson, 3 Ell. & Bla., 144.) A boarding-house is as well known, and as distinguishable Cady v. McDowell. from other houses, in every city and village in the country, as an inn or a tavern. It is a house where the business of keeping boarders generally is carried on, and which is held out, by the owner or keeper, as a place where boarders are kept. That this is the legislative idea, appears plainly by the act of the legislature, passed April 23, 1867. (Chap. 677, Sess. Laws of 1867.) This act is entitled: "An act to prevent fraud and fraudulent practices upon, or by hotel-keepers and inn-keepers." By § 2 of this act, "every keeper of a hotel, restaurant, boarding-house, or inn," is required to post "in a public and conspicuous place, in the office or public room, and in every bed-room, in said house, a printed copy of this act, and a statement of the charge or rate of charges, by the day, and for meals or items furnished, and for lodging." This section also provides that for any violation of the section, or of any provision thereof, the offender shall forfeit to the injured party three times the amount charged, and shall not be entitled to receive any compensation for the entertainment furnished. This shows plainly, as I think, the kind of house the legislature had in view. It was a sort of public house, partaking in some degree of the character of an inn, or restaurant, but differing from either, where the business of entertaining persons for certain periods, and at fixed or agreed prices, was carried on. Certainly, the legislature could not have intended that every private housekeeper, who might occasionally keep one or more boarders, but who did not make it a business, should post up copies of this act, in the different rooms of his house, and be subjected to the penalties prescribed, in case of his neglect to do so. What was decided in Jones v. Morill (42 Barb., 623,) cited by the defendant's counsel, was, that the act of 1860 gave to boarding-housekeepers, the same rights which the keepers of inns and taverns had, in respect to their guests, at common law. This was clearly right. The defendant here was a grocer, and, in no legal sense, a boarding-housekeeper. He was a mere private housekeeper, entertaining a boarder, who was a relative, for hire, in a single instance, and does not fall within the letter or spirit of the Mynderse v. Snook. act. Consequently he had no right to detain the goods, and the action was well brought, and should have been sustained. A new trial must, therefore, be granted, with costs to abide the event. New trial granted. EDWARD MYNDERSE v. JAMES SNOOK and JOB S. STEVENS. (GENERAL TERM, SEVENTH DISTRICT, SEPTEMBER, 1869.) To a complaint by the payee, on a negotiable promissory note, the defendants answered a non-joinder of parties plaintiff, and in order to establish the defence, proved that the note was made and delivered to the plaintiff, a member of a partnership firm, with the firm's consent, for moneys loaned from firm funds, and in furtherance of its contract.-Held, plaintiff was entitled to maintain the action, and the defence was not sustained. Held, also, that defendant could not set up a counter-claim for damages, existing in his favor, against the firm, and arising out of the contract, with reference to which, the loan for which the note was given, was made. The suggestion to the contrary in Schubart v. Harteau (34 Barb., 447), held to be obiter, and Briggs v. Briggs (20 Barb., 477), upon which the same is based, commented upon, and the latter case, and Parsons v. Nash (8 How. Pr. R., 454), explained. MOTION by defendant for a new trial on a case with exceptions. The complaint was upon a promissory note for $1,000, made by the defendant and payable to the plaintiff or order. The answer averred, that the plaintiff, and one Vanclief, were partners in the distillery business, under the firm name of Mynderse & Co.; that the note belonged to the firm, and that Vanclief should have been joined as party plaintiff in the action. That the firm, had entered into a contract in writing with defendants, by which it agreed to feed a certain number of hogs, at a price, and for a time named; and also, to loan the defendants the sum of $1,000, for the purchase of the hogs, upon their note, payable at the expiration of the time during |