The plaintiff seeks to recover of the defendant the value of an overcoat, committed to the care of *168tbe latter, as innkeeper. Several preliminary objections are raised by the defendant against the plaintiff’s right to maintain the action in its present form. It is said that the action is assumpsit, and that case is the proper form of action. It is true that case is the usual form of action where negligence is charged, though we are by no means certain that assumpsit could not be maintained on breach of an innkeeper’s contract, safely to keep and deliver the goods of his guests, when the facts are sufficiently set forth in the declaration. The first and third counts in the writ, however, are drawn with the necessary formality of declarations in' case, but the second count is in assumpsit. No demurrer has been filed to the misjoinder of the two forms of action, and the plaintiff has moved for leave to discontinue as to the money count. Under these circumstances, we think the objection'cannot avail the'defendant, it being entirely competent for the Court to allow the discontinuance of the second count, or to render judgment on the first and third counts.
The language of the writ, " being entertained as a guest therein, in the inn of the said Henry Norcross,” though somewhat inartificial, is a sufficient allegation that the defendant was an innkeeper; and the admission that " the defendant was an innkeeper, as alleged in the writ, and kept the Franklin House,” is sufficient proof, in connection with the plaintiff’s testimony, that he kept the inn at which the plaintiff stopped.
That the defendant was not licensed as an innkeeper, is no objection to the maintenance of this action. A license does not change'the character of the business of those who entertain travellers. The possession of it does not make, nor the want of it prevent a person from being an innholder at common law; it is his business alone that fixes the status of a party in this respect. A license saves an innholder from the penalty of being an innholder without license, but the want of it does not save him from his liability to his guests; it would be a perversion of justice, and a fraud *169«pon the law, if he could avail himself of his own criminality to defeat their lawful claims against him. Besides, it is not their duty to inquire whether one who entertains travellers is duly licensed, if, indeed, they could ascertain this upon inquiry.
Innkeepers are under the same liability as common carriers. They are insurers of the property of their guests committed to their care, and are liable for its loss, or any injury done thereto, not caused by act of Glod, the public enemy, or the neglect or fault of the owner, or his servants. This strictness of liability is necessary in order to protect travellers against any collusion between the innkeeper and his servants, and to compel him to take care that no improper persons be admitted into his house. His charge for the entertainment of his guests is supposed to cover this risk; and he, also, has a lien upon their property, entrusted to his care, to indemnify him against loss. Upon proof of loss, the burden of bringing the case within the exceptions to his liability is upon the innkeeper; and proof of the strictest care on his part avails him nothing, if it falls short of this. Shaw v. Berry, 31 Maine, 479; Mason v. Thompson, 9 Pick., 280.
Who are guests, in legal contemplation, and when the property of guests may be regarded as committed to the care of the innkeeper, are sometimes questions of no little intricacy.. If a person goes to an inn as a wayfarer, and a traveller, and the innkeeper receives him into his inn as such, he becomes the innkeeper’s guest, and the relation of landlord and guest, with all its rights and liabilities, is instantly established between them. Neither the length of time that a man remains at an inn, nor any agreement he •may make as to the price of board per day, or per week, deprives him of his character as a traveller and a guest, provided that he retains his status as a traveller in other respects. If an inhabitant of a place makes a special contract with an innkeeper, there, for board at his inn, he is a boarder, and not a guest. The test questions are, was he a travel-*170ler, and a wayfarer, and was he received and entertained, as such, by the innkeeper in his inn ? If he was, he at once becomes the innkeeper’s guest, and the relation subsists so long as he sojourns there, as a traveller. Berkshire Woollen Co. v. Proctor, 7 Cush., 417.
The liability of innkeeepers does not attach unless the goods are brought within the inn, or otherwise placed within their custody in some customary and reasonable way. It is not necessary that the goods should be placed in their special keeping, but it is sufficient if they are deposited in the house of the innkeeper, or entrusted to the care of his' family or servants. 2 Kent’s Com., 593; Story on Bail., § 479.
In Clute v. Wiggins, 14 Johns., 175, the guest put his sleigh, loaded with wheat, into an outhouse appurtenant to the inn, where loads of the kind were usually received, but without specially’committing it to the innkeeper. The grain was stolen in the night, and the innkeeper was held liable fpr the loss. It would be otherwise if a traveller, on arriving at an inn, should place his loaded wagon under an open shed, not appurtenant to the inn, and near the highway, and make no request to the innkeeper to take it into his custody. Albin v. Presley, 8 N. H., 409.
It is evident from these principles that the plaintiff was a traveller, and a wayfarer, and was received and entei’tained by the defendant at his inn as his guest. The plaintiff hung up his coat in the place in the inn allotted for that purpose. It was not his fault that neither the innkeeper nor his servants were in the room at this time, nor was it his duty to guard his garment until they should come into the room, or to inform them where he had put it. His duty was discharged when he left his coat in the place established by the defendant for depositing such articles.
The defendant must be defaulted on the first and third counts in the writ, for fifteen dollars and costs.
Appleton, C. J., Cutting, Walton, Barrows and Danforth, JJ., concurred.