#### Peet *vs.*McGraw.

Where an *innkeeper*sets up a lien for the feed and keeping of horses left with him by a] third person, an averment in a plea that he was then the keeper of a public inn, and as such innkeeper received the horses, is'equivalent to the averment that the person leaving the horses was a *traveller*or *guest.*

Besides, it seems where horses are left at an *inn*to be kept, it is not necessary to the creation of the lien that the person leaving them should be a guest.

Error from the Cortland C. P. Peet sued McGraw in an action of *replevin*for *detaining*a pair of sorrel mares received by him from one *Julian*Collins, to b.e delivered to the plaintiff. The defendant pleaded that at the time he received the mares from Collins he was the keeper of a public inn at Cortlandville, and *as such innkeeper*received the mares and [ *654 ] expended a large sum of money, to wit, &c. in their *necessary feed and keeping, previous to the mares being demanded by the plaintiff; and because the plaintiff omitted to tender to him or offer to pay him for the keeping of the mares, he refused to deliver them to the plaintiff, as he lawfully might, &c. The plaintiff demurred to the plea, and assigned as cause of demurrer, that it was not alleged that Collins was a *traveller.*The C. P. adjudged the plea to be good and rendered judgment for the defendant. The plaintiff sued out a writ of error.

*M. T. Reynolds*for plaintiff in error

insisted that the defendant was bound to aver and prove that the individual who left the mares with him was a *traveller*or *guest,*the terms being used synonymously in the books, and cited *Cro. Jac.*224; 1 *Viner’s Abr.*225 ; 1 *Saund. on Pl.*& *Ev.*89 ; *Bradby on Distresses,*208 ; 8 *Barn, & Cres.*9. Unless he was obligee to do so, a tort feazor, not a *traveller*or *guest,*might leave property at an *inn,*and subject the owner to expenses, the payment of which he would not be able to avoid.

*W. H. Shankland,*for the defendant.

An *innkeeper*has a lien without making a demand for payment, 2 *Lord Raym,*866. It was not necessary to allege that Collins was a *traveller,*for if a man deliver a horse to an *inn**499*keeper*to keep, and he, as *swell innkeeper,*receives the hors and expends money for the feed and care of the horse, the owner becomes a guest so as to give the landlord a lien, whether the owner stop at the house or not, 1 *Salk.*388 ; 2 *Ld. Raym.*866 ; 9 *Pick.*280. It is a necessary implication from the allegation that the defendant received the mares as an *innkeeper,*that Collins was a traveller ; it is not necessary in pleading to state circumstances that are implied. *Stephen on Pl.*357 ; 8 *Rep.*81, *b*; 2 *Brod. & Bing.*261; 16 *Johns. R.*205 ; 1 *Cow.*335.

*By the Court,*

Nelson, C. J.

I am of opinion that the plea is sufficiently certain to raise the lien for keeping the horses. It is said that the defendant should have averred *that *Collins*was a trav- [ *655 ] eller or guest, 'and as such delivered the horses to be kept, for the purpose of showing distinctly the character in which they were received by him, without which no lien arises upon the custom of the realm. But the averment made by the defendant that he was the keeper of a public inn at Cortl.mdville and as such innkeeper received the said horses, seems to me to be equivalent to the averment that *Collins*was a traveller or guest. It is a full allegation of the character of the defendant in which they were received and kept, and is admitted by the demurrer.

Besides, it is not- necessary in point of fact that the owner or person putting the horses to be kept at a public inn, should be a guest at the time, in order to charge the innkeeper for any loss that may happen, or to entitle him to the right of lien. This has been repeatedly held. It would seem therefore that in such cases the averment may be safely omitted. If the horses be left with the innkeeper, though the owner may put up at a different place, the former is answerable for the safe keeping, and should of course be entitled to the summary remedy for his reasonable charges. 1 *Salk.*338 ; *Cro. Jac.*189; *Story on Bailment,*311; 9 *Pick.*280.

Judgment affirmed.