
    Towson vs. The Havre-de-Grace Bank.
    Api'eai. from Baltimore county court. The plaintiffs [how appellees,) brought an action on the. ca.se against the defendant, (ihe appellant,) being an innkeeper, for the loss of goods, &c. The declaration states, “That whereas, according to the law and customs of this state, innkeepers, who keep common inns to entertain persons travelling by, or sojourning at the places where such inns are kept, by day and night, are to keep and preserve such guests and their money, goods and chattels, and also tiic money,- goods and chattels, of any other citizens or bodies politic of this state, being in the lawful custody of such innkeepers in such inns. And whereas the defendant, on the Sftli of September, 1816, and long before and afterwards, was an innkeeper, and held a common iiin in Ihe city of Baltimore, to wii, at the county aforesaid, to entertain persons travelling there, and sojourning in the said íün, and one John Logg, who was in this transaction the servant of the plaintiffs, then possessed of a large sum of money, to wit, the sum of 01000 iri bank notes, the property of and belonging to the plaintiffs, and travelling in the said county, and so sojourning 'in the said inn of the defendant, the same day and year aforesaid, then and there delivered into the lawful custody of the defendant the said sum of money in bank notes, to wit, S1000, belonging to the plaintiffs as aforesaid, and which said sum of money the defendant then and there liad in his lawful custody in the said inn. Yet some malefactor, resorting to or harboured in the said inn, afterwards, to wit, on the 28th of September, in ihe year aforesaid, by default and negligence of the defendant, and by the default, negligence, or fraud of his servants, or some one or more of them, took and carried aWay the .said sum of 010(10 iri bank notes, then and there being in the said inn, and in the lawful custody of the defendant, to wit, at the county aforesaid, and other Wrongs to the plaintiffs then and there did, against the laws and customs: aforesaid, to the damage of the plaintiffs 01500) and therefore they bring suit, &c,” J . ; Í , ’ I 1 , ' :
    If a bank de> tivei ? to J H note* of the bank, witl¿ a request to -pass . them away for the benefit of the bank, or if that could not be ef- ; footed, to return Í them, which he agreed to do, he was, quit ad hoc, the servant of the
    , Common innkeepers, without any particular contract or agreement for that purpose, areenswera- ’ b!e for all losses I in their inns, hap-1 pening either by , the acts or negfi»' ' gonce of themselves or their se.r- : vants, to travelÍeís and gii*»sts re* eeivod by them; and if a servant is* robbed of liis master’s mon'-y . ov goods, *he master may' maintain au action against the innkeeper in • .whose house the loss was snsHunetf*
    Innkeepers are answerable, by rqasm» of the profit au-iug either from the keeping the hoses, &c, or their guests, or from entertaining’ of the guest» themselves, m the case of money or other property, iioin, the keeping of which alone no profit can arise» It is the profit which alone Meatos his liability s and it matteis not out of whose fund* the expenses of die guest ai‘e do-
    J Kn objection that the ailég tiom in the declarer on rf of the loss of money in banknotes, and that bank nofes are not, money, cannot bes sustained
    A.n ipnk*ener *s only answerable fin* money,, or other dead proper iy lost in hi* inn, where the party losing it w:m a guest at theinn at the time of the loss,
    „ *** Tti actum against an innkeeper fir* the loss of (lead pvojmidv in his inn, it is necessary'- to set, out. Ji) the declaration that the plaintiff was a guest, at che inn at the time of the loss.
    Where a charter iueorimratm? a hank rejeras íbr fie eve and besmiit of th*» stite certain shares of \ the capital stock, to be subscribed for in s.mh ¡n-uirvw is tV hy-ifinteire uay direct, and also provide.': \ that niv director, fee. holding any shares therein, who shall o n,nit my fraud, &.e. shall be liable tt» t ppMw.iMMbvindiijfcn-njmtheameof tiestas: it is a fui'jlir and mast be judicially takes, a»»ce lit as ail other publie laws, J
    
    
      The defendant pleaded the general issue; and on the facts given in evidence at the trial, which are fully slated in the opinion delivered by this court, the defendant prayed the opinion of the county court, and their direction to the jury, .that the plaintiffs were not entitled to recover. Which opinion arid direction the court, [Dorsey, Ch. J. and Ward, A. J.] refused to give. The defendant ex-bepted, and the verdict and juílgméiit being against him, he appealed to this court.
    The cause was árgued before Buchanan, Martin and Stephen, J. '
    
      Winder and D. Johnson, for the appellant,
    contended, that the judgment ought to be reversed — 1. Because there ■was no averment in the declaration that at the time, the bank notes, for whose value this action was brought, were taken out of the appellant’s inn; Hogg, who the appellees state to have been their servant, was abiding in the inn as a guest. - 2. That Hogg was not such a servant of the appellees as entitled tliem to maintain this suit. 3. Because the appellees were not bound to the appellant for Hogg's expenses at the inn, not answerable to Hogg for the same. 4; That where goods in the possession of a traveller for his own use and benefit, either on loan or hire, are deposited by him with an innkeeper where he may sojourn, and the goods are stolen, will riot entitle the lender or hirer to an action against the innkeeper on the custom. 5. Thai an innkeeper in Baltimore was not bound to be the depositary of money, with which a traveller might be in possession, on account of another; and that the loss of money, so deposited, would not give an action on the custom to the owner of the money. 6. Because the property alleged to1 have been in the possession of Hogg, and lost in the appellant’s inn, was not legally and sufficiently described ir£ the declaration, it being called a sum of money of SlOOCf in bank notes, and throughout the declaration treated ás money; and the declaration did not state of what bank the' Motes were made by, nor the number of them, rior the amount for which the several notes were made. 7. That there was no evidence that the plaintiffs had a right to sue. On the first point they contended, that the plaintiff must state in his declaration every material thing necessary to his action. They referred to 5 Bac. Ab. tit. Pleas 
      
      pleadings, (B) 329, 332, 333, 346. Pinkney vs The Inhabitants, &c. 3 Saund, 379, (note 13.) Fontleroy vs. Aylmer, 1 Ld. Raym. 239. An action against an innkeeper is founded úpón the relationship between guest and host. They referred tó Calye’s Case, 8 Coke, 32. 2 Esp. Dig. 254, (626,) 256, (628.) 3 Bac. Ab. tit. Inns & Innkeepers, 666. There is rio averment in the declaration that Hogg continued at the inn, and was there abiding when the goods were lost.. They referred to the forms of declarations in 1 Harr. Ent. 460. Coke’s Ent. 347. Yelv. 162. Cro. Jac. 224. 2 Chitty’s Plead. 273. Rast. Ent. 404, 405. 3 Bac. Ab. tit. Inns & Innkeepers, (C,) 666. On the second point they referred to Calye’s Case, 8 Coke, 32. On ihahixih point they contended,' that thé averment in the declaration, being that the servant was ill possession of a sum of money, when the fact was that it was hot money but bank notes, and there being no averment of the value of the notes, the declaration is fatal: They referred to 3 Saund. 380, (note 13.) 9 Chitty’s Plead. 271, 274, 324. On the seventh point, they cóhteüdéd, that it should have been avérred in the declaration that the plaintiffs were an in • corporated body, and competent to sue; &c. and that the act incorporating them, being a private act; should havé been produced at the trial.
    
      lliUiams, for the appellees.
    
      1. Thé declaration edittains sufficient cértainty of Hogg’s being in the inn at the timé of the loss of the money. The sojourning commenced on the 27th arid continued to the 28th. But it is not necessary to aver the sojourning at the tiirie of the loss, and none of the forms state the guest was ¿biding in the inn at íhe time of the loss. The relationship between the guest and host must continúe, but it is not necessary to aver it in the declaration. He referred to 1 Com. Dig. 297, 298. Calye’s Case, 8 Coke, 32. Owings vs. Wyatt, 3 Harr. & M'Hen. 393. 1 Harr. Ent. 460.
    2. 3. It is averred in the declaration that Hogg was the servant of the plaintiffs. It is not necessarily to be inferred that the servant’s expenses are to be paid by the roaster. The reason of the law is, that the innkeeper shall have a profit; and therefore it was of no consequence who paid the expenses.
    
      '4. Whether the money was the property of Hogg, or óf the plaintiffs; was a fact for the jury.
    5. There was express proof that the defendant was ttf b¿ answerable if the goods were lodged in the bar of the inn; so that if he was not liáble within the custom, his liability came within his own rules'. ■ - '
    
    6. The notes aré sufficiently described even ás chattels; bo matter if they are worth nothing. It was for the jury to find the value. No other description of the notes could be given than hás been done. He referred to Calye’s Case, 8 Coke, 32. Esp. Dig. 256, (627.) Bank notes áre as Well known as money, and they are to be regarded as money; A tender in bank fiotes is good if it is not specially excepted to; ^
    
      7. The act incorporating the plaintiffs is a public law; the State having reserved therein a right to become a stockholder: This objection, if a good one, comes too late after verdict'. It should have been tríade in the court below by plea in abatement '■
   The opinion of the court was delivered by

Buchanan, j.-

The testimony, (substantially,) oñ which the appellees rested their case, as stated in the bill of exceptions, was that John Hogg', intending to go to Baltimore for the purpose of purchasing goods, and having two hundred and fifty dollars in notes of the Havre-de-Oracé B'dhk, applied to the cashier of that institution for Baltimore paper in exchange, who gavé him an equal amount irt Baltimoré paper; but left the notes of the Havre-de-Grace Bank in the hands of Hoggi and directed him to pass them away in Bahimorii for the benefit of the bank,- or if that could not be effected; to? rétürn them, which he agreed to do; that there was no loan of the notes to Hogg, arid that the arrangement was made entirely for the accommodation of the bank. That Hogg proceeded to Baltimore, taking with him the two hundred and fifty dollars in notes of the Havre-de-Grace Bank, and put up as a guest at the house of the appellant, who was'a common innkeeper in the city of Baltimorer That on the evening of the 27th of September, 1816; Hogg (being then a guest at the house of the appellant,) intending to go out, gave his pocket book, con'-tabling the said two hundred and fifty dollars, to-Baron Wright, the bar-keeper of the inn, for safe keeping;that m the following morning he asked Wright for his pocket book, who told him that it was locked up in the appellant’s room, who had gone to market with the keys, and that tinder pretence of going to the market, in search of the ap ■ pellant, in order to procure the key, Wright absconded, and never afterwards returned; that on the return of the appellant from market, Hogg asked him for the pocket book, and told him what ff right had said, who said that it Was not in his room, and that what Wright had stated was false, and expressed his fears in relation to the pocket book. Thai Hogg had no intimacy with ff right, and did not intrust the pocket book with him on account of any personal confidence reposed in him., but exclusively,on ac.= ■count of his situation in the inn; and that neither, the pocket book, nor any of its. contents, have ever been, received or recovered back by Hogg, or the appellees. To which there was no opposing evidence. But it was proved, on the. part of the appellant, that Hogg was in the city of Baltimore on his own business, and was alone answerable, and bound to the appellant for bis expenses at the inn, and that he never considered the appellees as, answerable for them. Whereupon the. opinion of the court, and (heir direction. to. the jury, that the appellees were not entitled to recover, were, prayed, by the counsel for the appellant, and the court did right in refusing, upon that testimony, to give the opinion and direct ion prayed;, for from the facts set out as furnishing the, cause of action, if true, it is clear that the bank notes, which form the subject of the suit, belonged to. the President and,Directors of the Havrede-Grace Bank, and that John. Hogg was intrusted and' empowered to dispose of. them, for the benefit of the bank, and was, quo ad hoc, the servant of that institution. Common innkeepers, without any particular contract or agreement for that purpose, are answerable for all.losses in their inns, happening either by the acts or negligence, of themselves, or their servants, to travellers ami guests received by them; and if a servant is robbed of his, master’s .money or goods, the master may maintain the action, against, the innkeeper, in whose house the loss was sustained. Here it appears that the appellant was a common innkeeper; that the pocket book, containing the bank notes belonging to the Haure-de-Grace Bank, was given for the safe keeping by Hogg, to the bar-keeper of the inn; that the pocket book and notes were lost, and. never regained; and tliai; Hogg, at the time they were so lost, was a guest at the inn, received there by the appellant. But it is said, that it does not appear, that the appellees are a corporate body, and had a right pr. power in law to sue. To which it is answered,, that the Havre-de- Grace. Bank is chartered by an act of the legislature^ of- the state, and that the charter or act of incorporation reserves, for the use and benefit of the, state, five hundred shares of the capital stock, to be subscribed for in such manner as the legislature may direct, thus connecting the institution with the fiscal concerns of-the state; and in the 22d section provides, that any director, officer, or other person, holding any share, &c’. of the • said bank stopk, who shall commit, any fraud or enibezzle- . ment, touching the money or property of the bank, shall be liable to prosecution, by indictment, in'the name of the state, It is therefore deemed a public law, which requires, not to be proved, as a private act, but must be judicially, taken notice of as all other public laws. There is nothing in the argument attempted to be drawn from tl\e evidence," offered on the part of. the appellants, that Hogg wasj at’ the time of the robbing or loss, in the city of Baltimore on his own business, and was alone bound'for his expenses at the inn.' Innkeeper's are answerable, 'by reason of the profit arising either from the Keeping of the horses, &c. of their guests,' or from the entertaining of the guests themselves, in tlie case of money or other property, from' the keeping of which alone no profit can arise. So, that" if a, guest goes to an inn, and leaves his horse there' with the host, and goes'/¡way himself for a time, and in his absence, the horse, is stolen, tlie host is chargeable, oh account of the profit'arising from the keépingof the-horse; but'if be' /goes away for several days,'leaving moneyl or other dead property there, which is stolen or lost during his "absence," the host is not answerable for the loss, as at that time he /was deriving no profi't or' gain, either from the keeping of. the money or goods, or from tlie entertaining- of the- guest himself- It is the profit then to the innkeeper which alone (..creates his liability, and it matters not out of whose funds, •/. the expenses of the guest are defrayed, it is enough that he’ /receives the consideration from whence his responsibility jaris.es, the premium for his risk.......... '

Thus it is said In a case in Yeherton, that “if A sends, his money by his friend, who is robbed in the inn at which he is a guest, A shall have the action.” — And there is no reason why it should not he so, the innkeeper being chargeable, not on the ground that he entertains the owner of the money, or ether goods, but because he receives, no matici: by whom paid, a compensation for the risk. The judgment in tills case, therefore, ought to be affirmed, if there was no, oilier objection than what grows out of the bill of exceptions. Bat after verdict, there was a motion in arrest* of judgment, and the reasons assigned ate, that the allegation in the declaration is of the loss of money in banknotes, and that bank notes r,re not money, and that the declaration is uncertain and insufficient in point of law; which are also insisted on here, as objections to the declaration. The former of these objections, that bank notes are not money, cannot be sustained; they answer all the purposes of money, in the ordinary concerns of the community; by common assent they are treated as money ill the payment off debts, the purchase of goods and land’s, and in the every day transactions between man and mail, and at this hour can only be considered as such. They are a legal tender, unless specially objected to at the time, and will pass by will, under the general description of money — -as “all my money in such a draw.”

But the other objection is fatal. It is, a general rule in pleading, that the' declaration must show a title in the plaintiff--a legal cause of action. A tide defectively set out, may be cured by verdict, but the gist, and every thing that' is of the essence of the action, must be set forth,• and that is of the essence of the action, without which, the court could have no sufficient ground to give judgment, ?;>-•»•-.a .1*3 fact alleged be found for the plaintiff, and may ” - '- j.-ed in arrest of judgment.

i «uukecper ip only answerable for money, or other «***«'■ property, lost in his inn, where the parry losing it r, ar-- a guest at the inn at the time of the loss, the profit arising from the entertaining- of the guest, as before remarked, being the foundation of his liability,

In an action therefore against an innkeeper, for the loss of such property in his inn, it is necessary to be set out in the declaration, that the plaintiff, was a guest at the inn at the time of the loss, that being the essence of th^ action, without which the court could have no sufficient ground to give judgment.

In this case it is alleged in the declaration, that Hogg was a guest at the inn of the appellant on the 27th of September 181(3, and that afterwards, on the 28th of-September, the money was stolen, without stating that he was a guest there at the. time, or on the day that it was taken away, and thus showing no cause of action. For though a guest on the 27th, non constat that he was there on the 28th. For any thing appearing in 'the declaration he might have gone away. It is not the case of a title defectively stated, which might be good-after verdict, but one, in which no title or cause of action is set out, op foundation laid for a judgment.

The declaration is therefore radically defective, and npt cured by the verdict; and the motion in arrest ofjudgmeat ought to have prevailed.

JUDGMENT KEVEU-Sj^Dy.  