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law of the innkeepers' lien which has given rise to much speculation in the past,-- whether an innkeeper is entitled to a lien for his charges on merchandise and samples which a traveling salesman, in the course of his business, carries with him to a hotel? There is a surprising lack of authority on this subject when we consider our great commercial activity, the general employment of traveling salesmen, and the constant use of hotels by the large cosmopolitan business concerns to reach their distant customers. A diligent search yielded but a single authority, and that a case of first impression. We may

almost

say to last August, when the English Court of Appeal after argument affirmed the decision of Justice Willes,” this question had never been in Court.

In Robins v. Gray,3 a commercial traveler neglected to pay his bill, and the landlord set up a claim of lien upon certain sewing machines belonging to the firm he represented. He had brought some of them with him when he first came; others his employers sent him while there in the regular course of business. Before any of the machines were received at the hotel the landlord had express notice that they were the property of the employers. The court, consisting of Lord Esher, Master of the Rolls, Lord Justice Kay, and Lord Justice Smith, held that the innkeeper had a lien upon all the machines for the amount of his bill. The decision seems to rest on the ground that the innkeeper's lien is founded on custom, and "the custom of the realm is that, unless there is some reason to the contrary in the exceptional character of the things brought (e. g., a tiger or a package of dynamite), he, the innkeeper, must take in the traveler and his goods ;' and since he was bound to receive the articles regardless of the ownership, he is entitled to his lien, even though he knows they are the goods of another. 4 The court then make the astonishing statement that there are no cases to the contrary, and attempt to distinguish, and in so doing cast suspicion upon Broadwood v. Granara,5 which had been good law these forty years.

We are not inclined to agree with this view.

An inn is established for the benefit of the public, and exercises a public franchise, and is liable to legislative control, and is bound to the performance of duties as prescribed by custom. Thus, at common

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Manning v. Hollenbeck, 27 Wis. 202. But see Covington v. Newberger, 99 N. C. 523, where, although it was a case of samples, the decision assumed that the landlord believed they were

part of the property of his guest, and
this question was not discussed.

2 (1895) 2 Q. B. 78.
3 (1895) 2 Q. B. 501.
4 Robinson v. Walter, 3 Bulstr, 269.
5 10 Ex. 417.

law an innkeeper was compelled to furnish lodging and entertainment for travelers and passengers and to protect the property which they brought with them. The ordinary defense of due care in the protection of the guest and his property was not open to the innkeeper; he was almost an insurer of the safety of his guest and his baggage; the act of God, or of the public enemies, or negligence of the owner of the property were his only defenses. As a compensation for his obligations, the innkeeper is invested with the right to recompense for the entertainment he provides and the right to demand his pay or security therefor in advance, or if he waives this, then a lien on the goods of his guest. That is, an innkeeper has these special privileges and liabilities only when the relation of landlord and guest is established.

An inn is established " ad hospitandos homines per partes ubi hujusmodi hospita existunt transeuntes,” i that is, only for the entertainment of men. A traveler would have no right to compel an innkeeper to assign him a room in which to give theatricals or to carry on a trade or a business, and if the landlord did actually let to a traveler a room for such purposes he could not be held to the strict common-law liability of an innkeeper. The relation of an innkeeper and guest has ceased, and instead we have that of lessor and lessee. There are numerous cases, both in England and this country, that show that the particular responsibility imposed upon the innkeeper does not extend to goods lost or stolen from a room in a public inn furnished to a person for purposes distinct from his accommodation as a guest. Thus, Justice Harlan in Fisher v. Kelsey, 3 says: “Although Fisher was received by the defendants into their hotel, as a guest, with knowledge that his trunks contained articles having no connection with his comfort or convenience as a mere traveler or wayfarer, but which, at his request, were to be placed on exhibition for sale, in a room assigned to him for that purpose, they would not, under the doctrines of the common law, be held to the same degree of care and responsibility in respect to the safety of such articles, as is required in reference to baggage or other personal property carried by travelers. He is entitled, as a traveler, to a room for lodging, but he could not of right demand to be supplied with apartments in which to conduct his business as a salesman or merchant. The defendants, being owners or managers of the hotel,

2

i Caylis Case, 1 Smith L. C. 137.

Burgess v. Clements, 4 Maule & S. 306; Carter 0. Hobbs, 12 Mich. 52; Mowers 0. Fethers, 61 N. Y. 34; Domestic Sewing Machine Co. v. Watters, 50 Ga. 573; Scheffer v. Corson, 58 N.

W. (8. D.) 555; Myers o. Cottrill, 5 Biss. (U. S.) 465–470; Fisher v. Kelsey, 121 U. S. 383; Story on Bailments,

p. 476.

8 121 U. S. at 385.

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were at liberty to permit the use by Fisher of one of their rooms for such business purposes; but they would not, for that reason and without other circumstances, be held to have had his goods in their custody, or to have undertaken to well and safely keep them, as constituting part of the property which he had with him in his capacity as guest.

From this it would seem to follow, as a logical conclusion, founded on the raison d'étre of the lien, that the landlord, being bound to afford only ordinary shelter and entertainment for a guest and liable to receive only his ordinary luggage, would only have a lien, for his ordinary shelter and entertainment, on his ordinary luggage.

Against this conclusion, it may be argued that all that the decided cases say is that the innkeeper shall not be subjected to his extraordinary liability for such goods, and not that he has no lien on merchandise. This is simply saying that there is an absence of authority to support the view. It is in effect conceding all the links in the chain of our reasoning, and only contending against the inevitable conclusion.

The English court then meets us with a class of cases which show that the innkeeper's lien extends to goods of third persons, which the traveler brings with him to an inn and which are received as his. This does not apply to merchandise, as pointed out in the opinion of Justice Harlan, as they are articles “ having no connection with his comfort or convenience as a mere traveler or wayfarer; and moreover, these cases refer only to the personal baggage which a traveler would ordinarily carry with him. The foundation on which such a lien rests is that the innkeeper is bound to receive the goods if they belong to the guest. As it is neither convenient nor proper to compel a guest to prove his title to his baggage each time he asks for food or shelter at a hotel, the landlord must be protected, if his guest turns out to be a rascal, and if the legal title which he supposed to belong to his guest, and upon which he looked as security, turns out to be in a stranger. Hence we have these decisions. But, as we have shown, an innkeeper is not bound to receive merchandise. The cases are radically different, and all arguments for extending to him a lien under these different circumstances fail. If this is not conclusive, examine once the ordinary cases which are cited to prove that there is a lien on goods of third persons which are brought to the inn as the guest's, and what do we find ? In Jones on Liens, for example, there are sixteen such cases cited, three of which are not in point, one was mere dicta, eight (one-half of them) were cases of borses, one was a carriage, one a piano, one the Wiscon

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2 Jones on Liens, p. 499.

Waugh v. Denham, 16 Irish C. L. 410.
VOL. XXX.

10

sin sample case, and one the well-known case of the attorney's bag. That is, they almost all referred to such impedimenta as were connected with the guest's " comfort and convenience as a mere traveler or way. farer.”

We do not believe that the English court can be sound when they extend the lien to the case where the landlord knows he is receiving property which does not belong to the guest. We are certain they are incorrect when they claim that there are no cases which deny him a lien under the circumstances. We understood that was the effect of Broadwood v. Granara,1 Trefall v. Borwick, and Johnson v. Hill.3 In the first of these cases, Broadwood v. Granara, an innkeeper claimed a lien upon a piano which had been sent by the plaintiffs to a guest while stopping at defendant's hotel. Defendant knew that the piano was the plaintiff's property, and that it had been merely lent for the time being to their guest. Chief Baron Pollock said: “I shall not inquire whether, if the pianoforte had belonged to the guest, the defendant would have had a lien upon it. It is not necessary to decide that point, for the case finds that it was known to the defendant that the pianoforte was not the property of the guest, and that it was sent to him for a special purpose. Under these circumstances, I am clearly of opinion that the defendant has no lien." Baron Parke added: “It is not necessary to advert to the decisions on the subject of an innkeeper's lien, because this is not the case of goods brought by a guest to an inn, in the sense in which the innkeeper has a lien upon them; but it is the case of goods sent to the guest for a particular purpose, and known by the innkeeper to be the property of another person. It therefore seems to me that there is no pretense for saying that the defendant has any lien.” But be the meaning of these cases what you will, we certainly have decisions in this country holding that an innkeeper has no lien where he knows the baggage he receives does not belong to the guest.4

There is, of course, something to be said in favor of the lien, looking at the capacity of our common law for expansion and its ability to adapt itself to the changes in times and customs. But it is to be remembered that the common law is to be extended only along lines indicated in previous decisions, and judges are not legislators to make new laws.

Moreover, refusing to give the innkeeper a lien does not deprive bim of an adequate and reasonable protection; for not only has he a right against the commercial traveler personally, but he may hold the firm,

1 10 Ex. 417.

2 L. R. 7 Q. B. 711; 8. C. L. R. 10 Q. B. 210.

3 3 Stark. 172.

4 Cook v. Kane, 13 Ore. 482; Singer Man, Co. v. Miller, 55 N. W. (Minn) 56; Covington v. Newberger, 99 N. C. 523.

bag. cted

who are usually substantial men, for the debts contracted by their representative in the course of business.

LEE M. FRIEDMAN, Boston, Dec. 10, 1895.

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CORPORATE ELECTIONS: RIGHT OF STOCKHOLDER TO CHANGE HIS VOTE BEFORE RESULT ANNOUNCED. In the case of State ex rel. &c. v. McCann,' the St. Louis Court of Appeals have rendered a decision upon a question which seems to be one of first impression. Briefly stated, the court hold that a stockholder at a corporate election has a right to change his vote at any time within the hours appointed by law for the election, and before the election is formally closed, the votes counted, and the result announced. It seems that there can be no doubt of the propriety of this holding. It assimilates a corporate election, which is open and not secret, to an election in a parliamentary body, where, as is well known, the right of the voters to change their votes is always conceded until the result is formally announced. It also conforms to the policy of the law in giving effect to the real will of the stockholders, and they clearly have a right to have their will expressed upon the question to what agents they will commit the care of their property, and the management of their business. The opinion of the court is written by Presiding Judge Rombauer, and he makes the propriety of the conclusion of the court clear, in the following language:

"The second proposition in the case raises a question of first impression and must be solved on principle, by determining the object of cumulative voting, and what view will best accomplish such object. The corporation for purely pecuniary profit was unknown to the common law, and is a growth of modern legislation. The Merchants Adventurers, Russia Company, Turkey Company, Bank of England, and East India Company, were but so many partnerships with special privileges, and unless otherwise specified in the grant, or rules of the company, each participant therein had his equal vote, regardless of the extent of his interest. In the modern corporation for pecuniary profit, which is eminently the growth of comparatively recent legislation, the right of the control of corporate affairs is apportioned almost uniformly according to interest making the share and not the shareholder the unit of vote. This radical change was found to work inequitably, as thereby a slight majority in interest could exclude the minority from all control in the management of corporate affairs. To remedy this evil the cumulative system was devised and adopted in several States, this State

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1 Not yet officially reported.

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