this be legal evidence for any purpose, then, certainly, a jury might infer from it the value of the contents of the bundle. The evidence to prove the loss is not quite so strong; but it seems, from the course of the trial, that this was an uncontested and admitted point, and that the jury would have been warranted in finding the affirmative from the circumstances proved The nonsuit was therefore properly refused.

We can not review the propriety of the refusal to nonsuit on the ground that the plaintiff did not show himself to have been a guest in the house, because the motion for nonsuit was put upon a different ground.

The next question is as to the admissibility of the evidence objected to. Higgins was the barkeeper of the defendant when the gold-dust, as is claimed, was received into the inn, and during the subsequent time down to the loss. It was argued by the plaintiff's counsel, that, as Higgins was the agent of the defendant, the latter was bound by his declarations touching the subject-matter in controversy. The following questions were put to the witness Dexter: "State what you heard Higgins, the barkeeper, say with regard to any money or golddust received from Mateer;" and "State what Higgins said at the time about the robbery." These questions or directions, the court, after objection by the defendant, permitted to be answered. It is asserted that the testimony given in reply to these directions, was admissible as a part of the res gesta. At the same time it is conceded that the declarations of Higgins, thus proved, were not made at the time of the delivery of the golddust by plaintiff and the receipt of it by the defendant. Thus the question is presented, whether the declarations of an agent or servant made to a third person concerning a deposit of which he has charge for his principal, at any time during the continuance of such charge, are competent evidence against the principal.

Greenleaf, 1 Law of Evidence, 126, says that "where the acts of the agent will bind the principal, there his representations, declarations, and admissions, respecting the subject-matter, will also bind him, if made at the same time, and constituting a part of the res gesta. They are of the nature of original evidence, and not of hearsay; the representation or statement of the agent, in such cases, being the ultimate fact to be proved, and not an admission of some other fact. But it must be remembered, that the admission of the agent can not always be assimilated to the admission of the principal. The party's own admission, whenever made, may be given in evidence against him; but the

AM. DEC. VOL. LII-20

admission or declaration of his agent binds him only when it is made during the continuance of the agency, in regard to a transaction then depending, et dum fervet opus. It is because it is a verbal act, and part of the res gestæ, that it is admissible at all; and therefore it is not necessary to call the agent himself to prove it; but wherever what he did is admissible in evidence, there it is competent to prove what he said about the act while he was doing it." As to any other facts, in the knowledge of the agent, he must be called to testify, like any other witness: Id. 134.

Were the declarations of Higgins a part of the res gestæ, according to the above rules? We think not. There was no act done by him, in his character of agent, at the time of making them, which would have been admissible evidence against the defendant, and which such declarations were calculated to qualify or explain. They were not made at the time he received the deposit; had they been then made, they would, perhaps, have been competent. They were made when Higgins took the bundle out of the closet to exhibit it to a stranger. This was not done by him in the discharge of his duties as agent, and the declarations accompanying that act were but hearsay. It is impossible to tell what weight this improper evidence had on the mind of the court, in forming its judgment. We can not clearly see that it had no effect, and, consequently, a new trial must be granted.

As the cause is to be retried, it is proper that we should express our views in relation to the other points in the case. The defendant insists that he is not liable in consequence of certain rules, adopted by him for the government of his house, and a copy of which he kept posted up in his bar-room. The eleventh of these rules was as follows: "The proprietor will not be accountable for any boxes, bundles, bags, trunks, chests, clothing, specie, gold-dust, bullion, or any other articles or material whatever, unless delivered to his special care, and a receipt given for the same."

It is unnecessary to determine whether an innkeeper, any more than a common carrier, can limit his legal responsibility by notice, or, if he can, whether it is not essential that actual knowledge of the notice should be brought home to his guest; inasmuch as we think that the requirement of the notice in this case was, so far as the plaintiff had anything to do, complied with. The delivery of the bundle to the barkeeper and agent of the proprietor, was a delivery to the "special care" of the proprietor,

within the meaning of his regulation; and the plaintiff ought not to suffer from the neglect of the barkeeper to give a receipt.

The remaining questions relate to the general principle on which the liablity of innkeepers is based. It is claimed by the defendant that his house was burglariously entered, the barkeeper overcome by force, and the property carried off by robbers; and that these circumstances exonerate him from liability. The question, then, is, whether robbery from without, or burglary, will excuse an innkeeper for the loss of the goods of his guest; and the answer to it does not appear to be settled by the authorities.

Chancellor Kent, 2 Com. 591, says that innkeepers are responsible to as strict and severe an extent as common carriers; while in another place, Id. 593, he limits their responsibility to losses occasioned otherwise than by inevitable casualty, or by superior force, as robbery. Judge Story, in his work on Bailments, section 472, says that innkeepers are not responsible to the same extent as common carriers; that the loss of the goods of a guest, while at an inn, will be presumptive evidence of negligence on the part of the innkeeper or of his domestics; but that he may, if he can, repel this presumption, by showing that there has been no negligence whatever, or that the loss is attributable to the personal negligence of the guest himself; or that it has been occasioned by inevitable casualty, or by superior force. Thus, he continues, although a common carrier is liable for all losses occasioned by an armed mob (not being public enemies), an innkeeper is not (as it should seem) liable for such a loss. Neither is he liable (it should seem) for a loss by robbery and burglary by persons from without the inn. It will be observed that the commentator advances this latter doctrine with some degree of hesitation and doubt, and in language which implies that he did not himself consider it as settled. Sir William Jones, in his essay on Bailments, page 94, says it has long been holden that an innkeeper is bound to restitution, if the trunks or parcels of his guests, committed to him either personally or through his agents, be damaged in his inn, or stolen out of it by any person whatever; and yet, he says, page 96, that it is competent for the innholder to repel the presumption of his knavery or default, by proving that he took ordinary care, or that the force which occasioned the loss or damage was truly irresistible.

It thus appears, that, while Judge Story leaves the point under consideration at loose ends, the two other distinguished com

mentators above cited are still more uncertain, as neither of them apparently agrees with himself; and from their opposing rules, it is difficult to determine to which side of the question they intended to adhere. The contradiction found in the writings of commentators, as well as the diversity which exists in the decisions on which their various statements are rested, seem to have sprung out of a departure from the principles on which the extraordinary liability of innkeepers and common carriers is based, and from what appears to be an erroneous construction put upon the doctrine laid down by Lord Coke, in Calye's Case, 8 Co. 32.

Thus Judge Story and Chancellor Kent, in support of the position that an innkeeper is not liable for the loss of the goods of his guest occasioned by robbery and burglary, rely in part, at least, on the authority of Calye's Case, while Sir William Jones cites no authority whatever in support of the strange proposition that the innholder may escape from responsibility by proving that he took ordinary care of the goods of his guest. Following in the track of the same departure from principle, in which commentators have wandered, are several decisions of recent date. Such are Burgess v. Clements, 4 Mau. & Sel. 306; and Dawson v. Chamney, 5 Ad. & El. N. R. 164. The tenor of Calye's Case, however, sanctions no such doctrine, although the particular passage in it, by which the lax rule of the responsi bility of innkeepers is sought to be sustained, appears, at first sight, to be somewhat uncertain. It is there laid down, that the innholder shall not be charged, unless there be a default in him or his servants, in the well and safe keeping and custody of the guest's goods and chattels within his common inn; for the innkeeper is bound in law to keep them safe, without any stealing or purloining; and it is no excuse for the innkeeper to say that he delivered the guest the key of the chamber in which he is lodged, and that he left the chamber door open; but he ought to keep the goods and chattels of his guests there in safety. But if the guest's servant, or he who comes with him, or he whom he desires to be lodged with him, steals or carries away his goods, the innkeeper shall not be charged; for there the fault is in the guest to have such companion or servant. So, also, if the innkeeper require his guest to put his goods in such a chamber under lock and key, and then he will warrant them, otherwise not, and the guest lets them lie in an outer court, where they are taken away, the innkeeper shall not be charged, for the fault is in the guest. Lord Coke is here commenting on the

writ in the Register Brevium, which recites that, by the custom of the realm, innkeepers are obliged to keep the goods and chattels of their guests, which are within their inns, without subtraction or loss, day and night, so that no damage, in any manner, shall thereby come to their guests, from the default (pro defectu) of the innkeeper or his servants.

The reasoning of Coke is simply this: The innkeeper is bound by law to keep the goods of his guest safely; if he does not perform this obligation, the law, which imposes on him the responsibility, declares him to be in default; but if the loss of the goods be ascribable to the fault of the guest, then the innkeeper is excused, for the words of the writ are "from the default of the innkeeper or his servants." He makes no distinction between losses occasioned by superior force, by robbery by persons within the house and persons from without, by secret theft, or by an armed mob. On the other hand, he apparently discountenances the distinction; for he says, "These words, absque subtractione seu omissione, extend to all movable goods, although of them felony can not be committed; for the words are not absque felonica captione, etc., but absque subtractione, etc." It strikes us forcibly that the uncertainty and confusion, which have been thrown over this branch of the law, have arisen from confounding the word defectu in the writ, and the word "default" used by Lord Coke as its translation, with the term " negligence;" an error into which Judge Story himself seems to have fallen: Story on Bail., sec. 470. The question of negligence does not, according to the language of the writ in the Register Brevium or the commentary of Coke, constitute a subject for discussion in ascertaining the responsibility of innkeepers, any more than it does in ascertaining that of common carriers. The law requires of the former to keep the goods safely, as it does of the latter to carry them safely, and in case either fails, from any cause, to comply with this legal obligation, the law pronounces him in default, unless the loss be occasioned through the fault of the owner of the goods, or by the act of God, or by the public enemies. It seems, therefore, that the dictum of Mr. Justice Bayley, in Richmond v. Smith, 8 Barn. & Cress. 9, is a concise and accurate summary of the doctrine of Calye's Case. "It appears to me," he says, "that the innkeeper's liability very closely resembles that of a carrier. He is prima facie liable for any loss not occasioned by the act of God or the king's enemies; although he may be exonerated where the guest chooses to have his goods under his own care." And although that dictum has been over