will assume that necessary facts to sustain it were proved. (24) On the same principle the regularity of the proceedings of a military court, (25) and the correctness of acts of legislative bodies(26) are presumed. ILLUSTRATIONS. (A.) 1. The record of a probate court shows the regular appointment of an administrator, and that on a subsequent day it was ordered that "the resignation be" received and recorded, and that letters de bonis non were on the same day granted to another. In a collateral proceeding involving the validity of the latter's appointment, it will be presumed that the resignation recorded was of the office of administrator, and that it was in writing as required by statute.(27) 2. The record of au action upon a penal bond states that the "jury were sworn as required by law." The presumption is, that they were sworn "to inquire into the truth of the breaches and assess the damages" as to a party in default, and to "try the issues and assess the damages" as to those who have appeared, as the statute requires.(28) 3. Lands of an infant are sold in pursuance of a decree of a Circuit Court. On a bill filed to set aside the sale, the record shows that process was ordered against the infants, and at the following term a guardian ad litem appointed. The presumption is that they were regularly brought into court.(29) 4. A statute requires that on a sale for taxes the purchaser shall give a bond to be approved by the court; otherwise the acknowledgment of the deed will be invalid. In a proceeding to set aside a tax sale it will be presumed that the bond on file was approved by the court.(30) 5. A. in an action of book account, presented to the court certain matters for adjustment and allowance, which were passed upon by a referee and his report was accepted by the court. B. sued A. on two promissory notes to which A. pleaded payment. His evidence showed that they were the same matters as had been presented before the court. Held, that the presumption was that the referee's decision was made on the merits and was a final settlement.(31) 6. In the Supreme Court in a criminal case, the record does not show whether the charge of the judge was in writing, as required by law, or oral. The presumption is that it was the former. (32) 7. B. being convicted of rape, on appeal to the Supreme Court the record shows that the jury were "duly sworn." The law requires that they shall be sworn to "well and duly try and true deliverance (24) Dobson v. Campbell, 1 Sumn. 319 (1833); Minor v. Mechanics' Bank, 1 Pet. 46 (1828); Bastard v. Trutch, 3 Ad. & Ell. 451(1835); R. v. Whiston, 4 id. 607 (1836); R. v. Whitney, 5 id. 191 (1836); R. v. Long Buckley, 7 East, 45 (1806); Lee v. Johnstone, L. R., 1 H. L. Sc 426 (1869); Reed v. Jackson, 1 East, 355 (1801); Ramsbottom v. Buckhurst, 2 M. & S. 567 (1813); R. v. Carlisle, 2 B. & Ad. 367 (1831); Jackson v. Pesked, 1 M. & S. 237; Spiers v. Parker, 1 T. R. 141 (1786); Davis v. Black, 1Q. B. 911 (1841); Harris v. Goodwyn, 2 M. & Gr. 405; Gladthorpe v. Hardman, 13 M. & W. 377 (1844); Smith v, Keating, 6 C. B. 136 (1848): Kidgill v. Moor, 9 id. 364 (1850); Delamere v. Queen, L. R., 2 H. L. 419 (1867); R. v. Waters, 1 Den. C. C. 356: R. v. Bowen, 13 Q. B. 790 (1849); Gibbs v. Pike, 9 M. & W 351 (1842). (25) Slade v. Minor, 2 Cranch, C. C. 139 (1817). (26) Gosset v. Howard, 10 Q. B. 441 (1845); Garrett v. Dillsberry R. Co., 78 Penn. St. 467 (1875); Cochran v. Arnold, 58 id. 399 (1868); Wickham v. Page, 49 Mo 527 (1872). (27) Gray v. Cruise, 36 Ala. 559 (1860). (28) State v. Gibson, 21 Ark. 140 (1860). (29) Brackenridge v. Dawson, 7 Ind. 383 (1856). (30) Cromelien v. Brink, 29 Penn. St. 522 (1853). (31) Stearns v. Stearns, 32 Vt. 678 (1860). (32) People v. Garcia, 25 Cal. 531 (1864). make," etc. The presumption is that the proper oath was administered.(33) 8. In an appellate court, the record stated a verdict for the plaintiff on twelve counts and that the jury were discharged on eight others. It was objected that there was nothing to show that the jury had been discharged with the consent of the parties. Held, that this would be presumed to have been the case.(34) In case 4 it was said: "If any presumption of law be reasonable, it is that which favors the regularity of judicial proceedings until something else appears; and the greater the tendency to irregularity, the greater the necessity for violence of presumption against it. This is all that saves our records. The bond required in this case was given. The court ought to have ap proved it. Without such action the acknowledgment of the deed was improper; and before convicting the judges of impropriety, some evidence is needed. The absence of any note of approval is insufficient. The letter of the law did not require it, and the omission was an informality which cannot upturn the whole proceeding." In case 5, it was said: "To support the plea of payment the plaintiff gave evidence of certain matters which he claimed to have applied as payment, which he had previously presented before the auditor for allowance in his action on book against the defendant, and which were passed upon by the auditor. It appears from the bill of exceptions that the report of the auditor was accepted by the court. The claim of the plaintiff here is, that there was no testimony tending to show that the matters he claimed before the auditor were either allowed or rejected upon their merits; and as they might have been disallowed on some mere technical point, the plaintiff should be allowed to have them apply as payment, unless the defendant shows affirmatively that the decision of the auditor was upon their merits. But we think that the prima facie presumption of law is to the contrary, viz., that where a question is brought before a judicial tribunal, having jurisdiction of the matter, and is there decided, the decision is presumed to be upon the merits of the controversy and to be a final settlement of it. The contrary, if claimed, must be made to appear by due proof. Public policy requires this presumption, that there may be an end to litigation; and experience shows that in the ordinary administration of justice, the fact corresponds with the legal presump. tion." In case 7, it was said: "Because the law enjoined an oath in the form I have stated, and because the record says the jury were sworn, we are bound to presume that they were sworn in that form. *** We are brought by an inspection of the record and the application of the appropriate legal maxims to the conclusion that the oath actually administered was the very oath the law furnished for the occasion. We are not to expect too much from records of judicial proceedings. They are memorials of the judgments and decrees of the judges, and contain a general but not a particular detail of all that occurs before them. If we should insist upon finding every fact fully recorded which must occur before a citizen, must be punished for an offense against the laws, we should destroy public justice and give unbridled license to crime. Much must be left to intendment and presumption. for it is often less difficult to do things correctly than to describe them correctly. This record is unusually full; its fullness indeed is the source of the defections urged against it; and yet it does not tell us how the defendant was tried, whether in the course of common-law trials by jury or in some of the various other modes that have been known in the world. Is the (33) Beale v. Com., 25 Penn, St. 11 (1855). (34) Powell v. Sonnett, 3 Bing. 381 (1826). judgment to be reversed for that reason? By no means. We intend that the trial was by jury and by witnesses confronting the deceased, because the record certifies us of a trial, and we know that a jury and witnesses are indispensable to a constitutional and legal trial. In the same manner we infer the presence of the jury throughout the trial, though the record takes no notice of them from the 24th to the 27th of October; and that the testimony was delivered ore tenus, though the names of the witnesses in the margin is all that is said about witnesses. (B.) 1. A judgment is produced which was confessed before a justice of the peace. The law required that the confession should be entered on the minutes of a docket and the judgment made thereon. The docket is lost. The presumption is that the entry was prop erly made.(35) 2. It appearing that a probate court had jurisdiction to render a certain judgment, the question arises whether all the proceedings were regular. The presumption is that they were.(36) 3. On an application to a surrogate for an order to sell the real estate of a decedent, the court appointed a guardian for the infant heirs. The question subsequently arose whether this had been done within the time required by statute. The presumption was that it had.(37) 4. The terms of a police court were by law daily for the transaction of criminal business and on certain specified days for civil business. The record of a criminal case in such court showed only that the trial took place on a day named. The presumption was that the court was then engaged in the transaction of criminal business. (38) In case 2, it was said: "From all this it appears, first, that the Probate Court had jurisdiction to render the judgment sued on. The costs accrued in proceedings in a civil case. And this appearing upon an inquiry which we are bound to institute, it matters not that the probate court ranks as an inferior tribunal, and not as one of those superior courts who exercise a common-law jurisdiction, and whose acts and judgments are conclusive in themselves; for the strictness with which the proceedings of inferior tribunais are scrutinized only applies to the question of jurisdiction, and when the existence of that is proved and conceded, the maxim omnia rite acta applies to them as well as to courts of general jurisdiction." "Upon the whole, said Welles, J., in case 3, I am prepared to hold at this point in the case, that the ordinary presumption that a public officer has done his duty should apply. I do not think that such presumption alone should ever be allowed to sustain a vital jurisdictional fact, such as I regard this to be; but inasmuch as the fact that a guardian was appointed is made out independently, and without the aid of such presumption, as the question is only as to the time when it was done, and as the proof shows that it might have been done in proper time, the law will presume that the appointment was made the requisite time before the parties in interest were by the order to show cause. In case 4, it was said: "A court was required by law to be held on that day for criminal business. It is to be presumed that such a court was held in obedience to the requirement; and as this case was within the jurisdiction of such a court, and as the record recites that it was heard and adjudged in the police court of Haverhill on that day, it is to be presumed that it was then engaged in the transaction of criminal business. (35) Slicer v. Bank of Pittsburgh, 16 How. 571 (1853). (38) Com. v. Brown, 123 Mass. 410 (1877). It was tried at a time when the court should have been, and we presume was, in session for that purpose. RULE IV. Jurisdiction of the person beyond the territorial limits of a court of general powers cannot be presumed. * * * * "The presumption indulged in support of the judg ments of superior courts of general jurisdiction are also limited to jurisdiction over persons within their territorial limits, persons who can be reached by their process. *The tribunals of one State have no jurisdiction over the persons of persons of other States, unless found within their territorial limits; the cannot extend their process into other States, and any attempt of the kind would be treated in every other forum as an act of usurpation without any binding efficacy.(39) * Whenever therefore it appears from the inspection of the record of a court of general jurisdiction that the defendant against whom a personal decree or judgment is rendered, was at the time of the alleged service without the territorial limits of the court, and thus beyond the reach of its process, and that he never appeared in the action, the presumption of jurisdiction over his person ceases, and the burden of establishing the jurisdiction is cast upon the party who invokes the benefit or protection of the judgment or decree."(40) RULE V. And a presumption cannot contradict facts averred or proved. "They have no place for consideration when the evidence is declared or the averment is made. When therefore the record states the evidence or makes an averment with reference to a jurisdictional fact, it will be understood to speak the truth on that point, and it will not be presumed that there was other or different evidence respecting the facts or that the fact was otherwise than as averred. If for example, it appears from the return of the officer or the proof of service contained in the record that the summons was served at a particular place, and there is no averment of any other service, it will not be presumed that service was also made at another and different place; or if it appears in like manner that the service was made upon a person other than the defendant, it will not be presumed, in the silence of the record, that it was made upon the defendant also. Were not this so, it would never be possible to attack collaterally the judgment of a superior court, although a want of jurisdiction might be apparent upon its face; the answer to the attack would always be, that notwithstanding the evidence or the averment, the necessary facts to support the judgment are presumed."(41) ST. LOUIS, Mo. JOHN D. LAWSON. (39) In Picquet v. Swan, 5 Mason, 40, Mr. Justice Story said: "The courts of a State, however general may be their jurisdiction, are necessarily confined to the territorial limits of the State. Their process cannot be executed beyond those limits; and any attempt to act upon persons or things beyond them would be deemed a usurpation of foreign sovereignty not justified or acknowledged by the law of nations. Even the Court of King's Bench in England, though a court of general jurisdiction, never imagined that it could serve process in Scotland, Ireland, or the colonies, to compel an appearance or justify a judgment against persons residing therein at the commencement of the suit. This results from the general principle that a court created within and for a particular territory is bounded in the exercise of its powers by the limits of such territory. It matters not whether it be a kingdom, a State, a county, or a city or other local district. If it be the former it is necessarily bounded and limited by the sovereignty of the government itself, which cannot be extraterritorial; if the latter, then the judicial interpretation is that the sovereign has chosen to assign this special limit, short of his general authority." (40) Galpin v. Page, 18 Wall. 364 (1873). John S. H. Frink and Joseph F. Wiggin, for plaintiff. Batchelder & Faulkner, for defendants. LOWELL, J. The plaintiff, who sues in behalf of a mortgagee, was owner of certain property described in the four policies as "his three-story frame building and additions, occupied for stores and shoe factory, situate on the north side of Third street, in Dover, N. H." Possession was taken by the mortgagee, the Cocheco Savings Bank, November 3, 1881, of which notice was given, and the companies agreed to pay to the bank in case of loss. The four policies were for $2,000 each, and there was a loss by fire, December 28, 1881, of which due notice and proof were furnished. The cases were, by agreement of the parties, sent to a referee to find the amount of injury and the character of the property injured in detail. His report is very full, and states the damage in eighteen items. The dispute arises upon the construction of the policies. In each of the first three policies there is a printed clause, substantially like that which I copy: 'Fences and other yard fixtures, sidewalks, store furniture and fixtures are not covered by insurance on the building, but must be separately and specifically insured." The policy of the Howard Company, which I call the fourth, contains this printed sentence: The insurance under this policy does not apply to or cover jewels, plate, watches, musical or scientific instruments (piano-fortes in dwellings excepted), ornaments, meadls, patterns, printed music, engravings, paintings, picture frames, sculpture, casts, models or curiosities, or friezes or gilding on walls and ceilings, fences, privies, or other yard fixtures, store or other furniture or fixtures, or plate-glass in doors or windows (when plates are of nine feet square or more), unless each are separately and specifically mentioned, and then not exceeding the actual cost of the same. The plaintiff bought the land in 1858, and made additions to the buildings, which is the meaning of the word "additions" in the policy. He fitted the buildings for stores and for a shoe factory, and occupied them himself for some years. I infer from the statement of the referee that some or all of the premises were occupied by tenants at the time of the fire. But this is immaterial. The question is, what are the "store fixtures" excluded from the contract under three policies, and the "store or other fixtures" excluded from the policy by the Howard Company? There is no doubt that an exception of fixtures out of a policy upon buildings refers to things which are, under some circumstances, removable, and not necessarily and always a part of the buildings. If we could suppose a printed exception in a policy to be intended to adapt itself to the various relations of landlord and tenant, mortgagor and mortgagee, heir and executor, so that fixtures refer to what may be removed in the particular case, all the disputed items in this case would be within the policies, because they are undoubtedly irremovable, as between the plaintiff and the mortgagee. But if these same things had been affixed by a tenant, there is no doubt that he might remove them during his term. Such a shifting construction would be unreasonable. We must look for a meaning of "store fixtures" which has a more general application. And I find it in the context and the popular meaning of the words. I hold it to mean, in this connection, store fittings or fixed furniture, which are peculiarly adapted to make a room a store, rather than something else. It is plain that "store fixtures" does not refer to the fixtures of the shoe factory, for the written part of the policies distinguishes the stores from the factory, and so does the common use of the words. Store is the American word for shop or warehouse, and is never applied to a factory. The words "store fixtures are construed in Whitmarsh v. Conway Fire Ins. Co., 16 Gray, 359, though that case is not of special importance in deciding this case. For the convenience of counsel I number the items in a copy of the referee's report which I place on file. And first I will say what items I find to be covered by all the policies. These are items 1 and 2, which were admitted by the defendants' counsel to be within the contract; they are the walls, roofs, floors, partitions, doors, and windows, including the show windows which last had not plate-glass of the prohibited size. 11. Boiler fixtures in boiler-room. The boiler cannot be removed without taking down part of the boilerhouse, and is used, among other things, to heat the building. 13. Elevator machinery, which in recent usage is as much a part of the house as are the stairs. 14. Steam piping, radiators, and iron tanks, which both from their mode of annexation and their use, which is equally applicable to a dwelling-house, a factory, or a shop, are part of the building. 16. Gas piping, for similar reasons. 10. Speaking tube, for similar reasons. I exclude from all the policies, items 6, wooden tank; 17, gas-fixtures, which are chattelsthe former by its construction, the latter by usage. Also as store fixtures," 3, 4, and 5-shelving and counters in the stores, and shelving and basin in the barber's shop. For all items not above excluded the three companies are liable. The fourth, or Howard Company, by my construction, escapes by virtue of "or other" from the fixtures of the shoe factory, which are items 7, 8, 9, 12, 15, and 18. I believe I have mentioned every item, and that the parties can assess the damages against each company without difficulty, in accordance with this opinion. VOTING BY PROXY AT CORPORATE ELECTION. PENNSYLVANIA SUPREME COURT, APRIL 16, 1883. COMMONWEALTH OF PENNSYLVANIA V. BRINGHURST. In the absence of authority in the charter or in a by-law, corporate stockholders cannot vote by proxy. PROCEEDINGS by quo warranto by the Common wealth upon the relation of John P. Verree and others against John H. Bringhurst and others, to determine whether relators or defendants were the duly elected officers of the Philadelphia Iron and Steel Company. At the election of directors held October 12, 1882, a number of votes by proxy were cast for relators. If such votes should be received relators would be elected, if rejected, defendants would be elected, there being a majority of votes cast in person in their favor. The inspectors refused to count the proxy votes, and reported that a majority of votes were cast for defendants. The defendants demurred to the suggestion of the relators on the ground that the corporate charter did not confer the right to vote by proxy. The court sustained the demurrer, and relators took a writ of error. MERCUR, C. J. The relators are stockholders of the Philadelphia Iron and Steel Company. It was incorporated by special act of 12th of April, 1867. The contention is whether the stockholders may vote by proxy in the annual election of officers of the corporation. Section 2 of the act declares: "The affairs of said company shall be managed by a board of five directors, one of whom shall be the president who shall be chosen by the stockholders; all elections shall be by ballot, and every share of stock upon which the required installments have been paid shall entitle the holder thereof to one vote." Section 3, inter alia, authorizes the corporation to "make all needful rules, regulations, and by-laws for the well ordering and proper conduct of the business and affairs of the corporation, provided the same in no wise conflict with the Constitution and laws of this State or of the United States." The charter in no wise refers to voting by proxy. No by-law has been adopted authorizing the stockholders so to vote. In the absence of any express authority in the charter, and without any by-law authorizing it, the question is, whether the stockholders may vote by proxy. In other words, is it a power necessarily incident to the corporate rights of the stockholders? A corporation is the mere creature of the law. It cannot exercise any power or authority other than those expressly given by its charter, or those necessarily incident to the power and authority thus granted, and therefore in estimation of law part of the same. Wolf v. Goddard, 9 Watts, 550; Diligent Fire Co. v. Commonwealth, 25 P. F. Smith, 291. The right of voting at an election of an incorporated company by proxy is not a general right. The party who claims it must show a special authority for that purpose. Angell & Ames Corp., § 128; Phillips v. Wickham, 1 Paige, 590. In this case Chancellor Walworth says, the only case in which it is allowable at the common law is by the peers of England, and that is said to be in virtue of a special permission of the king. He adds: "It is possible that it might be delegated in some cases by by-laws cf a corporation where express authority was given to make such by-laws regulating the manner of voting." In People v. Twad dell, 18 Hun, 427, it was held a stockholder cannot so vote unless expressly authorized by the charter or bylaws. Taylor v. Griswold, 2 Greene (N. J.), 222, holds that a right of voting by proxy is not essential to the attainment and design of a charter, and even a general clause therein authorizing the company to make bylaws for its government was insufficient of itself to give that right. In State v. Tudor, 5 Day (Conn.), 329, there was no clause in the charter authorizing the stockholders to vote by proxy; yet the company made a by-law authorizing them so to vote. The validity of this by-law was sustained by a majority of the court. So in People v. Crossley, 69 Ill. 195, effect was given to a by-law of the corporation authorizing voting by proxy, the by-law not being in conflict with the Constitution and laws of the State. That a right to vote by proxy is not a common-law right, and therefore not necessarily incident to the shareholders in a corporation, appears to have been recognized in Brown v. Commonwealth, 3 Grant, 209, and in Craig v. First Presbyterian Church, 7 Norris, 42. The selection of officers to manage the affairs of this corporation requires the exercise of judgment and discretion. They must be selected by ballot. The fact that it is a business corporation in no wise dispenses with the obligation of all the members to assemble together, unless otherwise provided, for the exercise of a right to participate in the election of their officers. Although it be designated as a private corporation, yet it acquired its rights from legislative power, and it must transact its business in subordination to that power. As then the relators cannot point to any language in the charter expressly giving a right to vote by proxy, and it is not authorized by any by-law, they have no foundation on which to rest their claim. Judgment was correctly entered for the defendants on the de murrer. Judgment affirmed. INNKEEPER'S LIABILITY FOR VALUABLES OF GUEST-CONTRACT AS BOARDERS--ARMY OFFICER. NEW YORK COURT OF APPEALS, NOV. 1883. HANCOCK V. RAND. In November, 1883, the plaintiff's husband, a general in the United States Army, having no permanent residence, and being subject to transfer by order of the government, en gaged specific rooms for himself and his family in the defendant's hotel, conducted on the European plan, at a fixed monthly price, less than transient rates with meals at the defendant's restaurant connected with the hotel, to be paid for as ordered, with the understanding that if he satisfied and were not sooner ordered away by the government, he would remain until the next spring or summer. The family occupied the rooms and took meals as thus agreed, until in March, 1874, valuables belonging to the plaintiff were stolen from the rooms. The defendant had failed to comply with the statute of 1857 as to notifying the plaintiff to deposit the valuables in his safe. In an action to recover their value, held, that the relation of inn keeper and guest existed, and the defendant was liable. head note and opinion show the facts. The plaintiff had judgment below. Chas. P. Crosby, for appellant. MILLER, J. The plaintiff claims to recover in this action the value of property stolen while a guest at the hotel of the defendants in the city of New York. The findings of the referee show that the plaintiff was an inmate of the defendant's hotel from November, 1873, until June, 1874, and that the articles lost were taken from the rooms occupied by the plaintiff in the month of March, 1874; that the husband of the plaintiff, General Hancock, was an officer in the United States army, and that in November, 1873, he applied for rooms and board at the defendants' hotel for himself and family; that after some conversation between the defendants and said Hancock, in regard to himself and family remaining at defendants' hotel, in which certain rooms in a private house adjoining said hotel, which the defendants were then using in connection with the same, were mentioned, it was said by General Hancock that he expected to remain until the following summer, provided every thing was satisfactory, and provided also he was not sooner ordered elsewhere on military duty; that the defendants offered the terms which they would take for said rooms, which terms General Hancock accepted on the understanding that he should continue to occupy them until the the next following spring or summer, provided every thing was satisfactory, and provided also he was not sooner ordered away on military duty. The referee also found that General Hancock and family, immediately prior to going to the hotel of the defendants, had been boarding at another hotel in New York City, and had no permanent home anywhere; that prior to the year 1873, and ever since that time, the home of General Hancock had been wherever his military head-quarters were, and that such head-quarters, during that time, have been at different places. The referee refused to find, as requested by the defendants, that any substantial agreement had been made by General Hancock as to the length of time he and his family should occupy said rooms. We think that the finding of the referee as to the understanding under which General Hancock and family came to the defendants' hotel is sufficiently supported by the evidence, and that his refusal to find that there was any substantial contract between the parties was fully justified. It appears very distinctly by the proof that no specified time was absolutely fixed or agreed upon for the stay of General Hancock and family at the defendants' hotel, and no express contract was made in regard to the same. According to the evidence, the general and family had a perfect right to leave at any time after the contract was made, and were not bound to remain for even an entire day; the moment General Hancock was dissatisfied he and his family had a right to leave the hotel; so also if ordered elsewhere he had a right to leave. It rested with him in these contingencies to do and act exactly as he pleased. It was a fluctuating agreement, depending upon his own will and caprice, and it cannot be said that the minds of the parties met as to any specific time whatever. The defendants could not have recovered damages by reason of his leaving at any moment. As an officer in the army, his duty might at any time have called him away to some distaut and remote place; and individually he had the right to say when he would go, without consulting the defendants. Really and actually he was but a transient guest, who had the right to come and go whenever he pleased. Officers of the army and navy and soldiers and sailors, who have no permanent residence which they can call home, may well be regarded as travellers or wayfarers when stopping at public inus or hotels, and to make them chargeable as mere boarders it should be shown satisfactorily that an explicit contract had been made which deprived them of the privileges and rights which their vocation conferred upon them as passengers or travellers. General Hancock and the defendants evidently had this in view in the conversation which took place between them in regard to the former's stay at the latter's hotel. The fact that General Hancock was subject to marching orders at any moment, and that this contingency was expressly provided for, makes a wide distinction between the case at bar and one which possesses no such features. This difference and the circumstances connected with it should be sufficient to take the case out of the ordinary rule which applies between an innkeeper and a permanent boarder, and may well maintain the rule we have laid down without disturbing the relationship or obliterating the distinction which exists between a guest and a boarder. In view of the evidence presented and the findings of the referee, we think the defendants are bound within the reason of the rule under which an innkeeper is held liable for the goods and property of his guest. As a soldier, General Hancock was unable to acquire a permanent home, and by reason of his profession, was obliged to live temporarily and for uncertain periods of time at different places and with innkeepers and others who make provision for the entertainment of guests and travellers. He was necessarily a transient person, liable to respond to the call of his superiors at any moment and to change the locality of himself and family. The defendants kept a hotel or inn, taking care of transient guests, some staying for a longer, some for a shorter period. General Hancock for himself and family, paid for their meals the same as other transient guests, and by express agreement they were at liberty to leave at any time they saw fit. Under these circumstances no reason exists why they should not be protected as well as the other travellers or guests at the hotel. It is very evident from the testimony that no absolute and express contract was made for the hiring of the rooms and the board of General Hancock and his family for any stipulated period of time, and the most that can be claimed on the part of the appellants is, that it was a question of fact for the consideration of the referee, and for him to determine, whether General Hancock and family were travellers and guests or boarders. On the one hand, as already stated, General Hancock was a transient person and could not depend upon remaining for any particular period of time at any place. He was without any permanent residence or home, and it positively appears that he made no arrangement for any permanent occupation of the rooms at defendants' hotel. On the other hand separate apartments were kept for boarders and for transient persons by the defendants, and the general and his family were registered among the former, but it does not appear that he knew this fact, and hence it cannot well be claimed that he had grounds for supposing, and understood that he and his family were boarders and not guests. The authorities hold beyond question that the fixing of the price does not make the party a boarder. Pinkerton v. Woodward, 33 Cal. 237; Berk shire Woolen Co. v. Proctor, 7 Cush. 417; Norcross v. Norcross, 53 Me. 169; Walling v. Potter, 35 Conn. 183. The fair intendment from the evidence is that General Hancock did not go to defendants' hotel under a contract hiring the rooms for a season, but that he was a transient person who had the right to leave at any moment, the same as any other guest. Regarding the evidence as it stands, and conceding the facts in reference to the question whether General Hancock and family were travellers and guests or boarders, there would seem to be but little question that the weight of the testimony is in favor of the proposition that they were travellers or wayfarers, and that there was no hiring of the rooms of the defendants for a season or a specified time. Even if there might have been a doubt as to whether there was a hiring for a term, as the referee has found in favor of the plaintiff upon this question, we cannot disturb the finding, and it should be upheld. In considering the question discussed, it should not be overlooked that the St. Cloud Hotel was kept as a public inn in every sense, and was clearly distinguishable from a boarding house; its proprietors did not claim that it was a boarding house and there is no evidence to show that it was considered in that light, and neither the fixing of the price nor the conversation had in reference to the probability of General Hancock and family remaining for a period of time could alter or change its true character. Hotels in modern days are differently conducted from what they were in times gone by. Furnishing rooms at a fixed price, and meals at prices depending upon the orders given, at the usual hotel rates, constitute a material difference in the system of keeping hotels from that which formerly existed. The defendants conducted a restaurant in connection with their hotel, at which meals were furnished in accordance with fixed prices. General Hancock and family, after the first month of their stay at defendants' hotel, and at the time the property in question was stolen, |