
    THE LIEN OF AN INNKEEPER.
    Circuit Court of Hamilton County.
    Joseph S. Thoma v. Remington Typewriter Company.
    Decided, June 6, 1908.
    
      Gonsituiional Law — Statute Granting Liens to Innkeepers Valid — Lien Attaches to Property Left by 'a Guest Regardless of his Want of Title.
    
    1. Section 44276, relating to the lien of an innkeeper, is merely declaratory of the common law, and does not violate any constitutional provision.
    2. The lien of an innkeeper attaches to a typewriter, left at the inn by a guest who departed without paying his bill, notwithstanding the guest had no title to the machine, and had obtained possession of it by false pretenses.
    
      James R. Jordan and Geoffrey Goldsmith, for plaintiff in error.
    
      Burch & Johnson, contra.
    Smith, J.; Swing, P. J., and Giffen, J., concur.
   The undisputed facts in the evidence disclose that on or about the 21st day of April, 1905, the defendant company delivered to one B. L. Wendelborn a certain typewriter, belonging to defendant in error, upon said Wendelborn’s statement that he was acting as agent for an amusement company; that said company desired to rent a typewriter from the'Remington Typewriter Company, and that said amusement company had authorized him to rent the typewriter for it. Thereupon said typewriter was delivered to said Wendelborn on the agreement that for each and every month said typewriter was so rented said amusement company was to pay therefor a rental of five dollars per month, but no rent was ever paid for the use of the same.

Upon the delivery of the typewriter to said Wendelborn, the latter took it to the Newmarket Hotel, at which hotel he was and had been a guest since the 1st of February, 1905, stating to the proprietor of the hotel that the typewriter belonged to him. A few days later said Wendelborn left said hotel without paying his account of forty dollars for board and lodging, leaving said typewriter in the possession of the proprietor of the hotel, who claims a lien upon the machine for the unpaid bill incurred by said Wendelborn.

Thereupon an action in replevin was brought by the defendant in error to recover possession of the typewriter. The undisputed facts further disclose that the statement made by Wendelborn to the Remington Typewriter Company that he was authorized by the amusement company to rent said typewriter for it, and also his statement to the proprietor of the hotel that he was owner of said typewriter, were false. The value of the typewriter was placed at seventy-five dollars.

Upon a hearing of the case in the-court of common pleas, at .close of all the testimony, the court instructed the jury to return a verdict for the defendant in error, and entered judgment thereon, and this case is now brought to reverse the action of said court.

Under these facts the relation between the plaintiff in error and Wendelborn at the time of the above transaction was that of innkeeper and guest. This being the relation, the plaintiff in error was entitled at common law to a lien upon the baggage and other property of the guest brought by him into the hotel, and said plaintiff in error was entitled to detain any property brought into the hotel by the guest as security for the payment of an amount due by the guest for lodging, board and accommodations furnished.

This lien became a part of the law of this state, as our courts administer the common law of England, in so far as its principles are not inconsistent with our own institutions, or opposed to the habits, customs and policies of the people of our state. Railroad Co. v. Keary, 3 O. S., 202.

This being so the plaintiff in error could retain the typewriter in question for the unpaid amount of his guest’s bill, unless Section 44276 would deprive said innkeeper of his lien. The section in question provides, that the keeper of any inn shall have a lien on the baggage and other property in and about said inn belonging to or under the control of his guest for the proper charges due him from said guest, for the accommodation, board and lodging furnished said guest, and said innkeeper shall have the right to retain said baggage and other property until the amount of such charges is paid.

It is urged in argument, that while the possession of the typewriter passed to Wendelborn, the -title to the same did not pass, and therefore said typewriter did not belong to 'and was not under the control of said AYendelborn, and consequently the innkeeper’s lien would not attach thereon.

We believe that this section is declaratory of the common law and does no-t enlarge or extend an innkeeper’s lien, so far as it relates to the property of a third person in the possession of the guest, and that said section is not in violation of any constitutional right. Under the facts in this case, Wendelborn was possessed of the typewriter in question, and it was under his control.' The words “under the control of the guest” we think, should be construed in the light of the common law decisions, and while the title to the typewriter in question may not have passed to Wendelborn, yet the innkeeper had a lien on the typewriter superior to the right of the defendant in error to retake possession of the same.

A very full and able discussion of this matter is set out in the case of Watters v. Gerard, 189 N. Y., 302 (82 Northeastern Reporter, 143).

The judgment of.the court below will be reversed, and upon the undisputed facts in the case, judgment for plaintiff will be entered in this court.  