#### Quinton *v.*Courtney.

A common inn-keeper is liable for any loss which his guest may sustain in his property, except'it be by the agency of a servant or companion of the guest himself, or when the guest is admitted upon terms when the inn is full. The possession of money gives the property of it as to any disposition which the possessor may make of it.

Case. Courtney was a tavern-keeper, and Quinton a traveller, who had saddle-bags in which were two bundled and eighteen dollars *;*upon alighting at the inn, lie gave the bags to a servant of the tavern-keeper, but did not inform either the servant or the tavern-keeper that, money was in the bags : these bags were placed in the bar-room, and were afterwards found on the lot, cut open, and the money gone; The declaration was in these words, to-wit:

NORTH-CAROLINA, 1 HiMiSBubough District. 5 *April Term,*1/93.

David Quinton complains of William Courtney, jr. in custody, &c. for that whereas according to the laws in this Stat- , ordinary keepers who keep ordinaries to lodge travellers therein who abide in the same, are bound to keep their goods and chattels being within these ordinaries, day and night, without diminution or loss, so that no loss or damage might happen to any such traveller or travellers, by reason of the defect of due and proper care by such ordinary keepers or their sn-vants in these ordinaries ; and the said David, on the thirtieth day qjf January, in tile year of our í.orcl 1/93, in the County of Orange, in'the district of Hillsborough, being lodged in the ordinary of the siid William, had a pair of leather saddle-bags, in which were contained the sum of two hundred and i ightcen ;opanish milled dollars, of the value of one hundred and nine pounds of the current money of ihis Slate, in that ordinary, and deliren d the same saddle-bags and money to the said William, then and there to be safely kept; nevertheless the said William, knowing the said bags and money to be within his said ordinary, he the said William, on the samé day and year first aforesaid, in the county and district aforesaid, did so negligently keep the said bags and monev, that the said bags and money for want of safe-keeping thereof, by the said William and his servants, were lost, stolen and carried away from and out of the said ordinary ; whereby the said David hath totally lost and become deprii ed from thence hitherto of the said bags and money, and of- the whole use, profit, benefit and value thereof; and the said William hath not delivered to the said David the said bags and money, although the said William, on the fourteenth day of January, in the year of our Lord 1/93, in the county aforesaid, was thereto requested, but hitherto hath and still doth refuse so to do, or to make him any satisfaction for the same ¡ v hereby the said David saith he is injured and endamaged to the value of pounds, and therefore he brings Ibis suit, &c.

And whereas also the'said David Afterwards, to-wit. on the same day and year aforesaid, in the c.ounty and district aforesaid, being lodged in the dwelling house of the said 'William for a certain time, •therefore to be paid to the said William, had one other pair of leather saddle bags in which were contained other two hundred and eighteen *52Spam-h milled dollars, of the value of one hundred and nine p;,»ruls of tile current money of this Slate, v.-itkin the same (hv -Ifinn-house then aucl there being;, and delivered the same to the said William, then and there to he safely kept for ■ certain time, received, 10-wit. the. sum of to be paid ...y the said David when the said W'l iam for the sale keeping; thereof; nevertheless the said William, well knowing the premises, on the same day and year last aforesda, in the county and district aforesaid, so negligently kept the said bags and money that the said bags and money, for want of such due care as aforesaid, were lost from and out of the said dwelling-house and possession of him the said William ; whereby the said David hath totally lost and been defrauded of the said bags and money, and of the whole use, nrofit, value and benefit thereof; and the said William hath not delivered to the said David the said hags and money, although the said William on the fourteenth of January, in the vest' of our Lord 1793, in the county aforesaid, was thereto required, but hitherto hath refused, and still doth refuse so to do or to make any satisfaction for the same ; whereby the said David saith he is injured and endamaged to the value of pound-', and therefore he brings this suit. &c.

And whereas also the said William afterwards, to-wit, on the aforesaid thirteenth day of Januaij, in the year of our hol'd 1793, in the county and district aforesaid, had undertaken safely and securely to keep in his custody, one other pair of leather saddlo-bags, continuing within the same the sum of two hundred and eighteen pieces of silver, coined money, commonly caked Spanish milled dollars, of the value of one hundred and nine pounds of the current money of this State, being the bag-, and money of the s -id David, and to restore and re-delivo.r the same to the said David, whenever thereafter the said David should request him so to do, and for that purpose had received the said bags and money into his custody ; the same William, his servants and agents afterwards, to wit, on the same day and year last aforesaid, in the comity and district aforesaid, the aforesaid bags and money so negligentlj and carelessly kept for want of due caro of the aforesaid William, his servants and agents, the aforesaid bags and ■money then and there were stolen and carried away by some person unknown, from and out of the custody and keeping of the aforesaid Wilhaw ; and by reason thereof the aforesaid David lie said bags -old money, and the whole value, pr 'fit and benefit thereof, hath tot dly lost and been deprived of from thence hitherto; and the said William hath not restored or re-delivered tile said bags and m -ney fo the said David, although the said Wi’liam afterwards, to-wit, on the fourteenth day of January, in the year aforesaid, in the county and district aforesaid, by the said David was thereto required, but hitherto hath refused and still doth refuse soto do, or to make any satisfaction for the same, whereby the said David saith he is injured and enumn-aged to the value of pounds, and therefore he hath brought this suit, &c.

And the general issue was pleaded.

*Haywood,*for the Plaintiff,

insisted that ordinary-keepers were liable for the loss of goods of their’guests committed to their care, unless the loss happens by the default of the guest himself. Inns were instituted for the benefit of travellers, that they might know where to go when travelling amongst strangers, without the dan-*53gei’ of being robbed or defrauded of their effects ; and to say that the inn-keeper should not be liabie'for the loss of his guest’s goods, would in effect destroy one of the principal ends of the institution of inns : and if it should be required to prove fraud or neglect upon the inn-keeper, before a guest could recover for the loss of ,his effects, this would destroy the utility of the institution in a great measure ; for frequently a stranger would not have it in bis power to prove the circumstance — there is no inconvenience on the other hand comparable to this. The inn-keeper has nothing to do but to be careful — if he takes sufficient care, in general the goods will not be lost. The same answer maybe given to the objection that the guest did not inform him of the contents of the bags — if lie takes sufficient care, a thing of great value will no sooner be lost than a thing of small value; and he ought to use this care in respect to all bis guests, and ■all the effects they have, with them, he the value great or small; and therefore there is no necessity that he should be informed of the contents or value of the things confided to his care, and he cited 8 *Rep. 33.*— Bac. *M. 182*— Buller 73, *of edit. 1778.*— Cro. *Jac.*224.

*Mr. Moore,*for the Defendant,

insisted in genera! that he could not be made liable but by means of (tis neglect. H< cited *Coggs*v. Bernard, and many other authorities; and he argued that the laws of England arc not in force here,-any further than the circumstances of the country ptake them necessary ; that these kinds of frauds which the laws of England were so careful to guard against, are not frequently practised here, and that therefore there is no necessity for the adoption of this hard law.

But *per*Williams

(the only Judge on this circuit,) the law is as laid down in 8 *R.*33 — Coley's case, and the inn-keeper is liable for the goods lost, unless when the guest is robbed by a companion of his own : and in some few other cases mentioned in *Coley’s*case, and in 3 *Bac. Ab.*183, as where (lie guest is informed that the house is full, but the traveller insists upon staying, and says be will shift. And in order to support the action, it is sufficient for the Plaintiff to prove that the Defendant kept a common ordinary, that lie was a guest, that the goods were brought to the inn, and were in the care of the Defendant, and were lost.

Tin Plaintiff under this charge had a verdict for one hundred and nine pounds, and judgment.

*54Note. — In lliis ease, it appeared the Plaintiff had received this money of a Mr. O’Brien, of Tarbrough, for the purpose of purchasing certificates, which he covenanted in writing to deliver to O’Brien, or to return him the money ; and it was insisted upon by *Mr. Moore,*that the money in this case was the property of O’Brien, and that Quinton only fiad it as his agent or servant; and that therefore the injury, if any, had been done to O’Brien and not to Quinton ; and that O’Brien ought to have brought the action. But e *contra,*it vis insisted, that strictly speaking, there is no such tilingas property in mo-i y, or that if there was, the possession always gave the properly to the possessor, and that an action which affirms property in the Plaintiff, could not be brought for it. *L. Ev.*262 - *Co. Litt.*286, *b.-Salk.*284.

*Et per*Williams, whoever has the poss. ssion of money, has the property of it : he may use it, and dispose of it as he pleases, without, and even against the consent and directions of him who entrusted him with it; and whoever receives the money from the trustee, though he knows it was entrusted to him for a different purpose, cannot be compelled to restore it. and the agent who abuses his trust in this respect, is only liable to damage by means of his contract.

Note. — Upon the possession of money giving the property, see *Clary*v. *Allison, post*111.