well and safe keeping and custody of his guests' goods and chattels, within his common inn, but he is bound to keep them safe, without any stealing or purloining. This doctrine, however, is to be understood with this qualification, that the loss will be deemed prima facie evidence of negligence, and that the innkeeper can not exonerate himself, but by positive proof that the loss was not by means of any person for whom he is responsible."

If Calye's Case is further examined it is believed that this interpretation is not authorized in all respects. After the language quoted by Judge Story in Calye's Case, the report goes on and says: "And it is no excuse for the innkeeper to say that he delivered to the guest the key of the chamber where he lodged, and that he left the chamber door open; but he ought to keep the goods and chattels of his guest there in safety; and therewith agrees 22 Hen. VI. 21 b; 11 Hen. IV. 45 a, b; 42 Edw. III. 11 a. And although the guest does not deliver the goods to the innholder to keep, nor acquaints him with them, yet if they be carried away or stolen the innkeeper shall be charged; and therewith agrees 42 Edw. III. 11 a. And although they who stole or carried away the goods be unknown, yet the innkeeper shall be charged: 22 Hen. VI. 38; 8 Rep., 2 Hostler, 7; vide 22 Hen. VI. 21. But if the guest's servants, or he who comes with him, steals or carries away his goods, the innkeeper shall not be charged; for the fault is in the guest, to have such a companion or servant." From the whole commentary upon this point in the case it fully appears that an innkeeper is responsible for the goods of his guest which may be stolen from his inn; and the construction to be adopted, when the whole report is examined, is, that the liability does extend beyond the fidelity of the innkeeper and his servants, in the common acceptation of the term. He is responsible for the well and safe keeping, etc. He is bound to keep the goods and chattels so that they shall be actually safe; inevitable accidents, the acts of public enemies, the owners of the goods and their servants, excepted. Proof that there was no negligence in the innkeeper or his servants is not sufficient for his immunity. And herein no question arises in regard to the burden of proof. It is not necessary for the guest to prove negligence to support his action; nor will proof by the innkeeper that he was guilty of no negligence be an excuse, unless he brings himself within those cases which are excepted. And it is believed that such is the current of authorities. In 1 Comyn's Digest, 298, in reference to

Calye's Case, it is said "an innkeeper is not liable, and an action will not lie, if the goods are lost without any fault of the innkeeper;" but the import of this language is qualified by that which immediately follows: "As if the guest order his horse to be put up into the pasture, and he is lost there, without any neglect of the innkeeper."

It was held in Bennett v. Mellor, 5 T. R. 273, that if an innkeeper refuse to take the charge of goods till a future day, because his house is full of parcels, he is liable to make good the loss, if the servant of the plaintiff in charge of the goods stop as a guest, and the goods be stolen during his stay. Ashurst, J., remarked: "If it had appeared, as the defendant's counsel have suggested, that these goods were lost through the negligence of the plaintiff's servant, the case would have deserved further consideration, but nothing of that kind appeared in the judge's report." And in the same case, Buller, J., says, in reference to the passage from 1 Comyn's Digest, 298, which had been cited for the innkeeper, that the action does not lie if the goods are lost without any fault of the innkeeper, "can not be supported if taken in a general sense, for all the authorities agree that it is not necessary to prove negligence in the innkeeper."

In the case of Burgess v. Clements, 4 Mau. & Sel. 306, Lord Ellenborough uses the following language: "The law obliges the innkeeper to keep the goods of persons coming to his inn, causa hospitandi safely, so that in the language of the writ pro defectu hospitatoris damnum non eveniat ullo modo." And afterwards, "the cases show that the rule is not so inveterate against the innkeeper, but that the guest may exonerate him by his fault, as if the goods are carried away by the guest's servant, or the companion, whom he brings with him, for so it is laid down in Calye's Case." The principle seems to be recognized, that such keeping the goods of the guest as would be a protection for an ordinary bailee for hire will not relieve the innkeeper from responsibility; but that he is not chargeable when the loss happens through the negligence of the guest, or those for whom he is responsible.

Kent v. Shuckard, 2 Barn. & Adol. 803, was a case where an action was brought against an innkeeper, to recover the value of a bag containing bank notes, lost by the plaintiff during the time he resided as a guest at the defendant's inn; on plea of not guilty, it appeared that the plaintiff, his wife, and another lady, Miss Stratford, took a sitting-room and two bedrooms at the inn, so situated that the door of the sitting-room

being open, a person there could see the entrance into both the bedrooms. The plaintiff's wife laid a reticule containing the money on her bed, and afterwards returned into the sittingroom, leaving the door between that and the bedroom open. After remaining in the sitting-room about five minutes, she sent Miss Stratford for the reticule, and it was not to be found. It was not contended for the defendant, that upon these facts he would not be liable for goods and chattels, but he denied that money was either. Lord Tenterden, C. J., said: "There are many cases, where money has been recovered in an action against carriers, who like innkeepers are liable by the custom of the realm; and I can not see any distinction in this respect between an innkeeper and a common carrier. The principle on whieh an innkeeper is liable for the loss of the goods of his guest, is both by the civil and common law to compel the innkeeper to take care that no improper persons be admitted into the house, and to prevent collusion between him and such persons. In the Digest, lib. 4, tit. 9, sec. 1, after stating the law, that an innkeeper is liable for the goods of his guest, it is said, Nisi hoc esset statutum, materia daretur cum furibus adversus eos quos recipiunt conniti. If we should grant the present rule, we should break in upon that principle. If a lady were to leave a valuable shawl in her room, the innkeeper (though unacquainted with its value) would clearly be responsible for it if lost."

Richmond v. Smith, 8 Barn. & Cress. 9, was where a traveler, on going into an inn, requested that his baggage should be taken into the commercial room, to which he resorted, from whence it was stolen. It was decided that the innkeeper was responsible, although he proved that, according to the usual practice of his house, the baggage would have been deposited in the guest's room, and not in the common, if no order had been given respecting it. The lord chief baron told the jury that the defendant was in the situation of a carrier, and could not get rid of his common-law liability, unless by giving express notice. And on a motion for a new trial, Lord Tenterden, C. J., said: "It is clear that at common law, when a traveler brings goods to an inn, the landlord is responsible for them. The situation of the landlord was precisely analogous to that of a carrier, and that the direction given to the jury was right." In the same case, Bayley, J., said: "It appears to me that an 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 when the guest chooses to have the goods under his own care."

The case of Clute v. Wiggins, 14 Johns. 175 [7 Am. Dec. 448], recognizes the doctrine that innkeepers are chargeable for the goods of their guests, lost or stolen out of their inns; and to render them liable, it is not necessary that the goods should be delivered into their special keeping, nor to prove negligence.

In Massachusetts, it has been decided that innkeepers, as well as common carriers, are regarded as insurers of the property committed to their care, and are bound to make restitution for any injury or loss not caused by the act of God or the common enemy, or the neglect or fault of the owner of the property: Mason v. Thompson, 9 Pick. 280 [20 Am. Dec. 471].

Chancellor Kent, in reference to the liability of innkeepers, says: "In general, he is responsible for the acts of his domestics and for thefts, and is bound to take all possible care of the goods and baggage of his guests deposited in his house or intrusted to the care of his family or servants." He remarks that it is laid down in Calye's Case that the innkeeper was bound absolutely to keep safe the goods of his guest deposited within the inn, and whether the guest acquainted the innkeeper that the goods were there or did not; and that he would, in every event, be bound to pay for the goods, if stolen, unless they were stolen by a servant or companion of the guest.

The cases decided make no distinction between the subtraction or loss of the goods on the one hand, and injury to them on the other, so that the innkeeper would be relieved from responsibility in the latter cases, when he would be liable in the former.

The jury were instructed, that the rule of law applicable to common carriers was not applicable to innholders, and that if the defendant had proved that he was not in fault, then he would be exonerated and the action could not be maintained. The jury must have understood, that if the defendant and his servants had conducted with such care and prudence as is required of bailees for hire generally, and that negligence was not imputable to them, he could not be holden for the loss. All these facts may have been proved and he might still be liable for the injury sustained by the plaintiff. The evidence adduced may have satisfied the jury that the injury to the horse was the result of inevitable accident. But under the instructions, it was not necessary that such should be the finding to authorize a verdict for the defendant.

It is not perceived that the rulings in the admission of evidence, which was objected to, were erroneous.

Exceptions sustained.

INNKEEPERS ARE LIABLE for the loss or injury of the property of their guests committed to their care when not caused by the act of God, the public enemy, or the neglect or fault of the owner or his servants: Norcross v. Norcross, 53 Me. 163, citing the principal case.

An innkeeper is liable for horses of guests injured or killed by negligence in securing them, or by imperfect and badly constructed stable: Dickerson v. Rogers, 40 Am. Dec. 642, and note 645. But he is said not to be liable for a loss occasioned by external force or robbery, or through the negligence of the guest: Kisten v. Hilderbrand, 48 Id. 416, and note 420.

FOOTMAN v. STETSON.

[32 MAINE, 17.]

JUDGMENT FOR FACE OF NOTE AND ILLEGAL INTEREST is conclusive upon the parties, and an action to recover back the illegal interest paid under such judgment will not lie.

ASSUMPSIT for money paid for illegal interest. Plaintiff gave defendant certain notes which Orrin Footman signed as surety. Judgment, including illegal interest, was obtained on the note, and was satisfied. Plaintiff brought this action, and defendant pleaded the statute of limitations, and that plaintiff was estopped by the former judgment.

Hutchinson, for the plaintiff.

D. D. Stewart, for the defendant.

By Court, TENNEY, J. The case shows, that the payment of what is alleged as being usurious interest, was made in the spring of the year 1846. This action to recover the same was commenced on February 1, 1847. The statute of limitations which the defendant relied upon, R. S., c. 69, sec. 8, is inapplicable.

It was objected, that Orrin Footman, who was allowed to testify for the plaintiff in the case, was incompetent, on the ground that he was upon the note in which illegal interest was reserved. It appears by the case, that he signed the note as surety for the plaintiff, and had no other interest therein. The judgment recovered upon the note was satisfied fully by the plaintiff. By the authority of the case of Webb v. Wilshire, 19 Me. 406, this did not render him incompetent.

A more material question involved in the case is whether an action can be maintained to recover back illegal excess paid by