By the Court,
Bennett, J.
It was decided, at the last term, in the case of Minggold v. Haven & Livingston, that the power of compulsory nonsuit exists. "We.-think the rule convenient, reasonable, and well supported by authority, and we shall adhere to it. On the trial of this cause, after the plaintiff had closed his evidence, the defendant moved for a nonsuit, “ on the [222] “ ground that the plaintiff had not proved by competent testi- “ mony the loss of any property of definite value.” This being the only position taken in support of the motion, unless that be tenable, the nonsuit was properly refused, notwithstanding there may have been other good and sufficient reasons, for which, if urged at the proper time, it might have been demanded. A party making his motion oil one ground, thereby impliedly waives all others. He cannot avail himself of a different position, on appeal, from that which he assumed in the court below. This doctrine is well established, and is necessary to be sustained, in order that the plaintiff may not be misled in the course of the trial, and in the settlement of his bill of exceptions in case the nonsuit should be ordered.
The general rule by which courts should be guided in determining whether a nonsuit, when applied for, should be ordered, is, that if the evidence given by the plaintiff would not authorize a jury to find a verdict for him, or, if the court would set it aside, if so found, as contrary to evidence, in such case it is the duty of the court to nonsuit the plaintiff. (1 Wend. 376; 6 id. 436; Ringgold v. Haven & Livingston, above cited, ante, p. 108.)
Let us apply these rules to the ease before us. We must, however, first remark, that the question of the admissibility of the evidence objected to, is one, with which, in determining the point now under consideration, we have nothing to do. Assuming, then, that the evidence was admissible for the purpose of affecting the defendant, was it of such weight that a jury might legally and properly infer from it that the plaintiff had “ lost any property of a definite value ?”
Dexter, one of the witnesses for the plaintiff, testified that Higgins, the barkeeper of the defendant, stated in a conversation between them, “ that the plaintiff had made Ms pile,” and that, on opening a closet and raising a bundle, he said “ it was the plaintiff’s, and that it was about six thousand dollars.” If this be legal evidence for any purpose, then, certainly, a jury might infer from it the value of the contents of the bundle. The evidence to prove the loss is not quite so strong; but it [223] seems, from the course of the trial, that this was an uncontested and admitted point, and that the jury would have been warranted in finding the affirmative from the circumstances proved. The nonsuit was therefore properly refused.
We cannot review the propriety of the refusal to nonsuit on the ground that the plaintiff did not show himself to have been a guest in the house, because the motion for nonsuit was put upon a different ground.
The next question is as to the admissibility of the evidence objected to. Higgins was the barkeeper of the defendant when the gold dust, as is claimed, was received into the inn, and during the. subsequent time down to the loss. It was argued by the plaintiff’s counsel, that, as Higgins was the agent of the defendant, the latter was bound by his declarations touching the subject matter in controversy. The following questions were put to the witness Dexter : “ State what you heard Hig- “ gins the barkeeper say with regard to any money or gold dust “ received from Mateer and “ State what Higgins said at the “ time about the robbery.” These questions or directions, the court, after objection by the defendant, permitted to be answered. It is asserted that the testimony given in reply to these directions, was admissible as a part of the res gestes. At the same time it is conceded that the declarations of Higgins, thus proved, •were not- made at the time of the delivery of the gold dust by the plaintiff and the receipt of it by the defendant. Thus the question is presented, whether the declarations of an agent or servant made to a third person concerning a deposite of which he has charge for his principal, at any time during the continuance of such charge, are competent evidence against the principal.
Greenleaf, (1 Law of Ev. 126,) says that “ where the acts of “ the agent will bind the principal, there his representations, “ declarations, and admissions, respecting the subject-matter, “ will, also, bind him, if made at the same time, and constitut- “ ing a part of the res gestes. They are of the nature of original “ evidence, and not of hearsay; the representation or statement “ of the agent, in such cases being the ultimate fact to be proved, [224] “ and not an admission of some other fact. Bat it mast be “ remembered, that the admission of the agent cannot always “ be assimilated to the admission of the principal. The party’s “ own admission, whenever made, may be given in evidence “ against him; but the admission or declaration of his agent “ binds him only when it is made during the continuance of the “ agency, in regard to a transaction then depending, et durrt “ferret opus. It is because it is a verbal act and part of the “ res gestee, that it is admissible at all; and therefore it is not “ necessary to call the agent himself to prove it; but wherever “ what he did, is admissible in evidence, there it is competent “ to prove what he said about the act while he was doing it.” As to any other facts, in the knowledge of the agent, he must be called to testify, like any other witness. (Id. 134.)
Were the declarations of Higgins a part of the res gestee, according to the above rules? We think not. There was no act done by him, in his character of agent, at the time of making them, which would have been admissible evidence against the defendant, and which such declarations were calculated to qualify or explain. They were not made at the time he received the deposite ; had they been then made, they would, perhaps, have been competent. They were made when Higgins took the bundle out of the closet to exhibit it to a stranger. This was not done by him in the discharge of his duties as agent, and the declarations accompanying that act were but hearsay. It is impossible to tell what weight tins improper evidence had on the mind of the court, in forming its judgment. We cannot clearly see that it had no effect, and, consequently, a new trial must be granted.
As the cause is to be re-tried, it is proper that we should express our views in relation to the other points in the case. The defendant insists that he is not liable in consequent of certain rules, adopted by him for the government of his house, and a copy of which he kept posted up in his bar-room. The 11th of these rules was as follows :—“The proprietor will not be ac- “ countable for any boxes, bundles, bags, trunks, chests, *■ clothing, specie, gold dust, bullion, or any other articles or [225] “ material whatever, unless delivered to his especial care, and “ a receipt given for the same.”
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By the Court,
Bennett, J.
It was decided, at the last term, in the case of Minggold v. Haven & Livingston, that the power of compulsory nonsuit exists. "We.-think the rule convenient, reasonable, and well supported by authority, and we shall adhere to it. On the trial of this cause, after the plaintiff had closed his evidence, the defendant moved for a nonsuit, “ on the [222] “ ground that the plaintiff had not proved by competent testi- “ mony the loss of any property of definite value.” This being the only position taken in support of the motion, unless that be tenable, the nonsuit was properly refused, notwithstanding there may have been other good and sufficient reasons, for which, if urged at the proper time, it might have been demanded. A party making his motion oil one ground, thereby impliedly waives all others. He cannot avail himself of a different position, on appeal, from that which he assumed in the court below. This doctrine is well established, and is necessary to be sustained, in order that the plaintiff may not be misled in the course of the trial, and in the settlement of his bill of exceptions in case the nonsuit should be ordered.
The general rule by which courts should be guided in determining whether a nonsuit, when applied for, should be ordered, is, that if the evidence given by the plaintiff would not authorize a jury to find a verdict for him, or, if the court would set it aside, if so found, as contrary to evidence, in such case it is the duty of the court to nonsuit the plaintiff. (1 Wend. 376; 6 id. 436; Ringgold v. Haven & Livingston, above cited, ante, p. 108.)
Let us apply these rules to the ease before us. We must, however, first remark, that the question of the admissibility of the evidence objected to, is one, with which, in determining the point now under consideration, we have nothing to do. Assuming, then, that the evidence was admissible for the purpose of affecting the defendant, was it of such weight that a jury might legally and properly infer from it that the plaintiff had “ lost any property of a definite value ?”
Dexter, one of the witnesses for the plaintiff, testified that Higgins, the barkeeper of the defendant, stated in a conversation between them, “ that the plaintiff had made Ms pile,” and that, on opening a closet and raising a bundle, he said “ it was the plaintiff’s, and that it was about six thousand dollars.” If this be legal evidence for any purpose, then, certainly, a jury might infer from it the value of the contents of the bundle. The evidence to prove the loss is not quite so strong; but it [223] seems, from the course of the trial, that this was an uncontested and admitted point, and that the jury would have been warranted in finding the affirmative from the circumstances proved. The nonsuit was therefore properly refused.
We cannot review the propriety of the refusal to nonsuit on the ground that the plaintiff did not show himself to have been a guest in the house, because the motion for nonsuit was put upon a different ground.
The next question is as to the admissibility of the evidence objected to. Higgins was the barkeeper of the defendant when the gold dust, as is claimed, was received into the inn, and during the. subsequent time down to the loss. It was argued by the plaintiff’s counsel, that, as Higgins was the agent of the defendant, the latter was bound by his declarations touching the subject matter in controversy. The following questions were put to the witness Dexter : “ State what you heard Hig- “ gins the barkeeper say with regard to any money or gold dust “ received from Mateer and “ State what Higgins said at the “ time about the robbery.” These questions or directions, the court, after objection by the defendant, permitted to be answered. It is asserted that the testimony given in reply to these directions, was admissible as a part of the res gestes. At the same time it is conceded that the declarations of Higgins, thus proved, •were not- made at the time of the delivery of the gold dust by the plaintiff and the receipt of it by the defendant. Thus the question is presented, whether the declarations of an agent or servant made to a third person concerning a deposite of which he has charge for his principal, at any time during the continuance of such charge, are competent evidence against the principal.
Greenleaf, (1 Law of Ev. 126,) says that “ where the acts of “ the agent will bind the principal, there his representations, “ declarations, and admissions, respecting the subject-matter, “ will, also, bind him, if made at the same time, and constitut- “ ing a part of the res gestes. They are of the nature of original “ evidence, and not of hearsay; the representation or statement “ of the agent, in such cases being the ultimate fact to be proved, [224] “ and not an admission of some other fact. Bat it mast be “ remembered, that the admission of the agent cannot always “ be assimilated to the admission of the principal. The party’s “ own admission, whenever made, may be given in evidence “ against him; but the admission or declaration of his agent “ binds him only when it is made during the continuance of the “ agency, in regard to a transaction then depending, et durrt “ferret opus. It is because it is a verbal act and part of the “ res gestee, that it is admissible at all; and therefore it is not “ necessary to call the agent himself to prove it; but wherever “ what he did, is admissible in evidence, there it is competent “ to prove what he said about the act while he was doing it.” As to any other facts, in the knowledge of the agent, he must be called to testify, like any other witness. (Id. 134.)
Were the declarations of Higgins a part of the res gestee, according to the above rules? We think not. There was no act done by him, in his character of agent, at the time of making them, which would have been admissible evidence against the defendant, and which such declarations were calculated to qualify or explain. They were not made at the time he received the deposite ; had they been then made, they would, perhaps, have been competent. They were made when Higgins took the bundle out of the closet to exhibit it to a stranger. This was not done by him in the discharge of his duties as agent, and the declarations accompanying that act were but hearsay. It is impossible to tell what weight tins improper evidence had on the mind of the court, in forming its judgment. We cannot clearly see that it had no effect, and, consequently, a new trial must be granted.
As the cause is to be re-tried, it is proper that we should express our views in relation to the other points in the case. The defendant insists that he is not liable in consequent of certain rules, adopted by him for the government of his house, and a copy of which he kept posted up in his bar-room. The 11th of these rules was as follows :—“The proprietor will not be ac- “ countable for any boxes, bundles, bags, trunks, chests, *■ clothing, specie, gold dust, bullion, or any other articles or [225] “ material whatever, unless delivered to his especial care, and “ a receipt given for the same.”
It is unnecessary to determine whether an inkeeper, any more than a common carrier, can limit his legal responsibility by notice, or, if he can, whether it is not essential that actual knowledge of the notice should be brought home to his guest; inasmuch as we think that the requirement of the notice in this ease was, so far as the plaintiff had any thing to do, complied with. The delivery of the bundle to the barkeeper and agent of the proprietor, was a delivery to the “ especial care” of the proprietor, within the meaning of his regulation; and the plaintiff ought not to suffer from the neglect of the barkeeper to give a receipt.
The remaining questions relate to the general principles on which the liability of innkeepers is based. ' It is claimed by the defendant that his house was burglariously entered, the barkeeper overcome by force, and the property carried off by robbers ; and that these circumstances exonerate him from liability. The question, then, is, whether robbery from without, or burglary, will excuse an innkeeper for the loss of the goods of his guest; and the answer to it does not appear to be settled by the authorities.
Chancellor Kent, (2 Comm. 591,) says that innkeepers are responsible to as strict and severe an extent as common carriers, while, in another place, (id. 593.) be limits their responsibility to losses occasioned otherwise than by inevitable casualty, or by superior force, as robbery. Judge Story, in his work on bailments, (sec. 472,) says, that innkeepers are not responsible to the same extent as ¡common carriers; that the loss of the goods of a guest, while at an inn, will be presumptive evidence of negligence on the part of the innkeeper or of his domestics; but that he may, if he can, repel this presumption, by showing, that there has been no negligence whatever, or that the loss is attributable to the personal negligence of the guest himself; or that it has been occasioned by inevitable casualty or by superior force. Thus, he continues, although a common carrier is liable for all losses occasioned by an armed mob, (not being public [226] enemies,) an innkeeperis not, (as it should seem,) liable for such a loss. Neither is he liable, (it should seem,) for a loss by robbery and burglary by persons from without the inn. It will be observed that the commentator advances this latter doctrine with some degree of hesitation and doubt, and in language which implies that he did not himself consider it as settled. Sir William Jones,!in his essay on bailments, (p. 94,) says, it has long been holden that an innkeeper is bound to restitution, if the trunks or parcels of his guests, committed to him either personally or through Ms agents, be damaged in his inn, or stolen out of it by any person whatever; and yet, he says, (p. 96,) that it is competent for the innholder to repel the presumption of his knavery or default, by proving that he took ordinary care, or that the force which occasioned the loss or damage was truly irresistible, I
It thus appears, that, while Judge Story leaves the point under consideration at loose ends, the two other distinguished commentators above cited are still more uncertain, as neither of them apparently agrees with himself; and from their opposing rules, it is difficult to determine to which side of the question they intended to adhere. The contradiction found in the writings of commentators, as well as the diversity which exists in the decisions on which their various statements are rested, seem to have sprung out of a departure from the principles on which the extraordinary liability of innkeepers and common carriers is based, and from what appears to be an erroneous construction put upon the doctrine laid down by Lord Coke in Calye's case, (8 Rep. 32.) Thus Judge Story and Chancellor Kent, in support of the position that an innkeeper is not liable for a loss of the goods of his guest occasioned by robbery and burglary, rely in part, at least, on the authority of Calye’s case, while Sir William Jones cites no authority whatever in support of the strange proposition that the innholder may escape from responsibility by proving that he took ordinary care of the goods of bis guest. Following in the track of the same departure from principle, in which commentators have wandered, are several decisions of recent date. Such are Burgess v. Cle[227] ments, (4 M. & Selw. 306;) and Dawson v. Chamney, (5 Adolph. & Ell. N. R. 164.) The tenor of Calye’s case, however, sanctions no such doctrine, although the particular passage in it, by which the lax rule of the responsibility of innkeepers is sought to be sustained, appears, at first sight, to be somewhat uncertain. It is there laid down, that the innholder shall not be charged, unless there be a default in him or his servants, in the well and safe keeping and custody of the guest’s goods and chattels within his coinmon'iim ; for the innkeeper is bound in law to keep them safe, without any stealing or purloining ; and it is no excuse for the innkeeper to say, that he delivered the guest the key of the chamber in which he is lodged, and that he left the chamber door open ; but he ought to keep the goods and chattels of his guest there in safety. But if the guest’s servant, or he who comes with him, or he whom he desires to be lodged with him, steals or carries away bis goods, the innkeeper shall not be charged ; for there the fault is in the guest to have such companion or servant. So, also, if the innkeeper require his guest to put his goods in such a chamber under lock and key, and then he will warrant them, otherwise not, and the guest lets them lie in an outer court, where they are taken away, the innkeeper shall not be charged, for the fault is in the guest. Lord Coke is here commenting on the writ in the Register Brevium, which recites that, by the custom of the realm, innkeepers are obliged to keep the goods and chattels of their guests, which are within their inns, without subtraction or loss, day and night, so that no damage, in any manner, shall thereby come to their guests, from the default (pro defect'd) of the innkeeper or his servants.
The reasoning of Coke is simply this. The innkeeper is bound by law to keep the goods of his guest safely ; if he does not perform this obligation, the law, which imposes on him the responsibility, declares him to be in default; but if the loss of the goods be ascribable to the fault of the guest, then the innkeeper is excused, for the words of the writ arvf-rom the default of the innkeeper or his servants. He makes no distinction between losses occasioned by superior force, by robbery by persons [228] within the house and persons from without, by secret theft, or by an armed mob. On the other hand, he apparently discountenances the distinction; for he says, “ these words absque subtractions sen omissions, extend to all moveable goods, although of them felony cannot he committed; for the words are not absque felónica captione, &e., but absque subtractions^ Ac. It strikes us forcibly that the uncertainty and confusion which have been thrown over this branch of the law have arisen from confounding the word defectu in the writ, and the -word default used by Lord Coke as its translation, with the term negligence ; an error into which Judge Story himself seems to have fallen. (Story on Bailments, sec. 470.) The question of negligence does not, aeccording to the language of the writ in the Register Bremum or the Commentary of Coke, constitute a subject for discussion in ascertaining the responsibility of innkeepers, any more than it does in ascertaining that of common carriers. The law requires of the former to keep the goods safely, as it does of the latter to carry Them safely, and in case either fails, from any cause, to comply with this legal obligation, the law pronounces him in default, unless the loss be occasioned through the fault of the owner of the goods, or by the act of God, or by the public enemies. It seems, therefore, that the dictum of Mr. Justice Bayley in Richmond v. Smith, (8 Barn, and Cress. 9,) is a concise and accurate summary of the doctrine of Calye’s case. “ It appears to me,” he says, “that the innkeeper’s iiabil- “ ity very closely resembles that of a carrier. He is prima “facie liable for any loss not occasioned by the act of God or “ the king’s enemies; although he may be exonerated where “ the guest chooses to have his goods under his own care.” And although that dictum has been overturned in England by the subsequent decision in Dawson v. Chamney, (5 Adolph. & Ell. N. R. 164,) we think the dictum right, and the decision wrong. Stephen, in his Commentaries, (2 Comm. 133,) says that an innkeeper is responsible for the goods and chattels brought by any traveller to his inn, in the capacity of guest there, in every case where they are lost, damaged, stolen, or taken by irobbery, except where they are stolen by the traveller’s own [229] servant or companion, or from his own person, or from a room which he occupied as a mere guest,""or entirely through his own gross negligence; and Mr. Chitty, in a note to Blackstone’s Commentaries, (1 Comm. 430, note 22.) declares it to be long established law, that the innkeeper is bound to restitution, if the guest is robbed in his house by any person whatever l unless it should appear that he was robbed under circumstances like those which, as above seen, constitute admitted exceptions. In the recent case of Mason v. Thompson, (9 Pick. 280, 284,) it has been laid down in Massachusetts, that innkeepers, as well as common carriers, are regarded as\i?isurers of the property committed to their care, and are bound to make restitution for any injury or loss, not caused by the act of God, or the common enemy, or the neglect or fault of the owner of the property. And in Grinnell v. Cook, (3 Hill, 488,) Mr. Justice Bronson states the rule in the following words; “The innkeeper is bound “ to receive and entertain travellers, and is answerable for the “ goods of the guest, although they may be stolen or otherwise; “ lost without any fcmlt on his part. Like a common carrier,; “ he is an insurer of the property, and nothing but the act of “ God or public enemies will excuse a loss.” It thus appears that some courts as well as commentators are, at length, re-’ turning to the sound and healthy principle of the common law, which places the liability of innkeepers and carriers on the same ground. And why should there be any distinction ? “ Big- “ orous as the law in relation to innkeepers may seem,” says Sir William Jones, (Bailments, 95, 96,) “and bardas it may ac- “ tually be in one or two particular instances, it is founded on “ the great principle of public utility, to which all private eon- “ siderations ought to yield; for, travellers, who must be nu- “ merous in a rich and commercial country, are obliged to rely “ almost implicitly on the good faith of innholders, whose edu- “ cation and morals are usually none of the best, and who might “ have frequent opportunities of associating with ruffians or “ pilferers, while the injured guest could seldom or never ob- “ tain legal proof of such combinations, or even of their negligence, if no.-actual- fraud had been committed by them.” [230] Now, these are the very reasons assigned by the law for tl|e extraordinary responsibility imposed on common carriers; and, the reasons for the rule being the same in both cases, there is, in principle, no propriety in making a distinction. We think that an innkeeper is bound to keep the property of his guest safe from burglars and robbers without, as well as from thieves within, his house. '■
One point further remains to be considered. It appears from the testimony, that the bundle, which is claimed to have contained the gold dust, was not taken to the defendant’s inn until several days after the plaintiff became his guest. As, in order to entitle the plaintiff to recover, it is necessary for him to establish his character of guest in the inn of the defendant, so also it is equally necessary that it should appear that his goods were taken there in the capacity of guest. (2 Stephen's Comm. 133.) The liability of the innkeeper results from the relation of guest in which the traveller stands to him, and extends only to those things which properly pertain to him in that relation. (Calye’s case above cited.) It does not necessarily follow that the strict responsibility can be imposed on an innkeeper for all property, which his guest may choose to bring into the inn, after he has been received infra hosjjitium ; or that the latter may make the former a compulsory depositary of any amount of goods or treasure, which, during his sojourn in the inn, he may desire to keep secure. The innkeeper is bound by law to receive the traveller and bis goods, and, for a refusal, in case be bas sufficient accommodations for him, he is liable not only to an action on the case for the private damage, but to indictment for the public wrong. (3 Blackstone’s Comm. 164; 4 Stephen’s Comm. 296, note n.) Inns are instituted for passengers and wayfaring men; and the keepers thereof can be held to the strict legal liability only for such goods as are brought into their inns by travellers in tbe character of guests. It would be too great a responsibility if that liability could be extended so as to cover any conceivable amount of money or gold dust, which the trav-eller, after he has become a guest, might be disposed to thrust into the custody of his host, and thus compel him to become the [231] insurer of its safety. We think, in this case, it is a question which the jury should decide, whether the bundle 'was taken to the inn of the defendant by the plaintiff in his character of guest, in which event the defendant’s liability would cover all losses, or whether, after the plaintiff became a guest with the defendant, it was deposited there in the nature of an ordinary bailment, in which case the defendant would be bound to exercise no more, at the farthest, than ordinary diligence, and would be answerable, certainly, for nothing more than ordinary neglect.
New trial granted, costs to abide the event.