Hawley v. Smith

25 Wend. 642

Opinion

"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.