
    *Hawley vs. Smith.
    An innkeeper is not liable, in his character as such, if sheep he put to pasture under the direction of the guest, and they are injured by eating poisonous plants; if, however, the innkeeper is chargeable with negligence, or want of due care, in the premises, he is responsible in damages.
    This was an action on the case, tried at the Chemung circuit in October, 1839, before the Hon. Robert Monell, one of the circuit judges.
    The defendant was an innkeeper, and the plaintiff stopped at his house with a drove of 700 sheep, which, with his knowledge, was turned out to pasture. In the pasture, or in a gulf adjoining it, grew laurel, a poisonous weed ; and on the next day several of the sheep of the plaintiff died, and others sickened, so that he was obliged to lay by for several days with his drove and servants; and from the evidence produced on the trial, it was manifest that the sheep had eaten laurel, and that the flock was greatly injured. The judge charged the jury, in substance, that an innkeeper was liable if the horse or other animal of a guest turned out to pasture was injured by eating poisonous plants grov/ing in the grounds, and that without reference to his knowledge of the existence of such plants; and that if they were satisfied from the evidence adduced on the trial, the that sheep were poisoned by eating laurel in the defendant’s pasture, the plaintiff was entitled to their verdict. The jury found a verdict for the plaintiff, with $95.50 damages. The defendant moved for a new trial.
    
      J. A. Spencer, for the defendant,
    insisted that the sheep having been put to pasture at the request of the plaintiff, the defendant, in his character of innkeeper, was not liable for the injury sustained. That he was only liable for the want of due care ; which question should have been submitted to the jury, instead of being instructed as they were by the charge of the judge. He cited 2 Kent’s Com. 592, 8 Co. 32.
    
      L. R. Marsh, contra.
   "By the Gourt,

Nelson, C. J.

I am of opinion this case falls [ *643 ] within an exception laid down in Cayle’s case, 8 Co. 32, to the general rule in respect to the liability of an innkeeper, which has been followed ever since. It was there resolved, that if the guest deliver his horse to the hostler, and request that he be put to pasture, which is accordingly done, and the horse is stolen, the innholder is not responsible, not being in the common law sense of the term, infra hospitium. He is not to be regarded as an insurer for goods without the inn, that is for goods not within the curtilage. 8 Co. 32 ; 2 Kent’s Comm. 592; Story on Bailment, 312 ; 21 Wend. 284.

The sheep were put to pasture under the direction of the guest, which fact should have been regarded by the learned judge as bringing the case within the above exception. It would then have turned upon the question of negligence, which should have been put to the jury upon the facts disclosed.

New trial granted.  