-The proposition involved in the first special plea, to which a demurrer was sustained, and in the charge requested and refused, to the refusal of which an exception was reserved, is, that as the defendant was not a licensed keeper of an inn or hotel, though he may have kept a house of public entertainment, he was absolved' from the common-law liability for the goods of his guests' lost vnfra hospiUum. This, it is insisted, is the result of the statutory regulations of inns, hotels, and boarding houses, embodied in the Code. — Code of 1876, §§ 522-25.
These sections form part of the general revenue laws of the State; the first requiring every keeper of an inn or hotel to take out a license annually, to be issued by the judge of probate, the sum to be paid for such license being graduated according to the population of the town in which the inn or hotel may be situate. It is declared, '“the liabilities of the keepers of such inns, or hotels, and of persons who are guests therein, shall be such as are fixed by the laws of the land, in the absence of a special contract regulating the same, made between the parties thereto.” The next, section authorizes the surrender of licenses taken for the keeping of an inn or hotel, and declares that only such persons as are required to take out license, “ shall be considered as inn-keepers or hotel-keepers.” The next section authorizes the keeping in any town, city, or village, of a house or place for the entertainment of travellers, lodgers, transient persons, or guests, imposing a tax on the net income derived therefrom. The last section provides, that no person shall have the right to demand board, lodging, or entertainment, from the keeper of any unlicensed house of entertainment, otherwise than by special contract; and the parties to such contract shall be bound by the stipulations thereof lawfully made, and not otherwise. In the absence of such special contract, evidenced by a memorandum in print or in writing, to be fur*330nished to such guest, boarder, or lodger, by the keeper or manager of such house, compensation is not allowed him.
The obvious purpose of these statutory regulations, so far as not devoted to the derivation of revenue, is to authorize the keeper of a house of entertainment, not licensed, to contract specially with the guests or boarders he may receive and entertain, and when such special contract is made and evidenced in conformity to the statute, that it shall become the measure of the right, liability and duty of" each party. By the common law, an imperative duty of an inn-keeper was, to receive and entertain, for a reasonable compensation, all persons applying, not of disorderly conduct, and having the means of payment. There was as little discretion left him in the choice of his guests, as there was to the common carrier in the selection of the persons for whom he would perform his duties. Each is engaged in public employment, bound, in the absence of reasonable grounds for refusal, to serve all having a necessity for their services. The purpose of the statute is, to confer on the keeper of the unlicensed house of public entertainment the liberty of receiving only such guests or boarders as may enter into a special contract with him. But, if the keeper of such house does not enter into a special contract with the guest, furnishing him a memorandum thereof in print or in writing, limiting his liability, the common law intervenes, and from that the measure of his liability must be ascertained.
All statutes are construed in reference to the principles of the common law; and it is not to be presumed that there is an intention to modify, or to abrogate it, further than may be expressed, or than the case may absolutely require. — 1 Kent, 464. The keeper of a house of entertainment, holding himself out to the world as the keeper of a public inn, in that capacity inviting public patronage, trust and confidence, not exacting, as he may, a special contract from his guests or boarders, can not be heard to say that his professions were false — that he was unlicensed, and not in fact an inn-keeper, bound to his duties, and answerable to his liabilities. The principles regulating the rights, duties and liabilities of an inn-keeper and guest have their origin and foundation in considerations of public policy, and are designed entirely for the protection and security of travellers and the transient public, who are compelled to intrust their property to the keeper of inns and hotels. The purposes of the statute are satisfied, when the keeper of an unlicensed house of entertainment is allowed large liberty in the making of a special contract with the guest or boarder. If he does not choose to exercise the liberty — if without a special contract he receives and entertains the guest — lie can not devolve upon the latter the duty of inquiry whether he is licensed or unlicensed, and claim *331the absolution from liability the statute intends to secure only when it is stipulated for in a special contract. There was no error in sustaining the demurrer to the first special plea, and in the refusal of the charge requested.
The keeper of a public inn or hotel in a city, complying with the requirements of the statute (Code of 1876, §§’1549-51), may relieve himself from liability for the loss of money, -jewelry, watches, &c., within the inn or hotel, not occurring through his fraud, or the fraud of some clerk or servant employed by him. The statute is for the benefit of the inn-keeper, intended to afford him the opportunity of protecting himself from losses to which his fraud, or that of his servants, does not contribute. To the benefit lie is not entitled, unless he gives notice to the guest that a safe depository for his money or other valuables is provided. The mere posting of notice on a single door of the hotel, however public it may be, is not a compliance with the statute, and will not justify the inference of notice to the guest. The application of the statute, under any state of facts, to this case, is not apparent. By its terms, the statute is limited to the keepers of inns or hotels in a city, and can not be extended to towns or villages, or to inns or hotels situate in the country. It is not shown that Evergreen is a city, and in the absence of evidence of that fact, the charge of the court upon this point is abstract.
The true relation of the plaintiff was that of a guest, and not that of a boarder. He was the resident of another town, visiting Evergreen for the mere temporary purposes of his business. There may be, sometimes, much of difficulty in determining whether the relationship of guest exists. But, when the character of traveller, of mere transient or temporary visitor, exists, and is retained, the relation of guest and inn-keeper exists. 4 Wait’s Actions and Defenses, 2; Story on Bailments, § 477; Berkshire Woolen Co. v. Proctor, 7 Cush. 417. The simple fact that the plaintiff contracted for board and lodging at a less price than the defendant usually charged, does not change the fact that he was a mere traveller, or temporary, transient visitor. The inn-keeper, like a common carrier, may contract to serve one person for a less sum than he usually serves others, but the relation or liability he bears is not thereby changed. In Berkshire Woolen Co. v. Proctor, supra, the court said: “ The simple fact that Kussell made an agreement as to the price to be paid by him by the week, would not, upon any principle of law or reason, take away his character as a traveller and guest. A guest for a single night might make a special contract as to the price to be paid for his lodging and whether it were more or less than the usual price, it would not affect his character as *332guest. The character of guest does not depend upon the payment of any particular price, but upon other facts.”
In the admission of evidence of the conduct, demeanor, or appearance of the servant, George Richardson, subsequent to tHe loss of the money, while on trial charged with its larceny, the Circuit Court erred. If then his conduct, demeanor or appearance, was indicative of guilt, the fact would have been competent evidence against him, as would have been his confession then'made. But by his acts, or declarations, subsequent to the loss of the money, his employer could not be affected.—Elcox v. Hill, 98 U. S. 218.
There was no error in admitting the evidence of the plaintiff, that he knew and recognized the walk of the servant, Richardson, in the hall, at or about the time of the discovery of the loss of the money. The point of objection is, that it was mere matter of opinion. So far as that may be true, it is of opinion formed from observation, dependent for his value upon the opportunities of observation, and, like the recognition of the human voice, incapable of higher evidence.
We have passed upon all the assignments of error which have been argued by counsel; and for the error pointed out, the judgment must be revei’sed, and the cause remanded.