Markham vs. Brown, 8 N.H. 523

Parker, J. An innkeeper holds out his house as a public place to which travellers may resort, and of course surrenders some of the rights which he would otherwise have over it. Holding it out as a place of accommodation for travellers, he cannot prohibit persons who come under that character, in a proper manner, and at suitable times, from entering, so long as he has the means of accommodation for them. But he is not obliged to make his house a common receptacle for all comers, whatever may be their character or condition.

He is not obliged to receive one who is not able to pay for his entertainment, (3 Barn. & Ald. 283, Thompson vs. Lacy;) and there are considerations of greater importance than this. He is indictable if he usually harbor thieves, (1 Hawk. Ch. 78, sect. 1; Bac. Ab., Inns, & c.) and he is answerable for the safe keeping of the goods of his guests, (Story on Bailment 307,) and is not bound to admit one whose notorious character as a thief furnishes good reason to suppose that he will purloin the goods of his guests, or his own.

So he is liable if his house is disorderly, (1 Hawk. 451) and cannot be held to wait until an affray is begun before he interpose, but may exclude common brawlers, and any one who comes with intent to commit an assault or make an affray. So he may prohibit the entry of one whose misconduct in other particulars, or whose filthy condition, would subject his guests to annoyance. He has a right to prohibit common drunkards and idle persons from entering, and to require them, and others before mentioned, to depart, if they have already entered.

And any person entering not for a lawful purpose, but to do an unlawful act — as to commit an assault upon one lawfully there — must be deemed a trespasser in entering for such unlawful purpose. As he is bound to admit travellers, under certain limitations, he may likewise be held, under proper limitations, to admit those who have business with them as such. This-may be considered as derived from the right of the traveller. It is conceded that he may be bound to permit the entry of persons who have been sent for by the guest. But we think the rule is not to be limited, in all cases, to this.

There may be such connection between travellers and those engaged in their conveyance, that the latter, although not specially sent for, may have a right to enter a common inn; or such that the landlord, if he give a general license to some of those whose business is connected with his guests, in their characters as travellers, cannot lawfully exclude others, pursuing the same business, and who enter for a similar object.

There seems to be no good reason why the landlord should have the power to discriminate in such cases, and to say that one shall be admitted and another excluded, so long as each has the same connection with his guests — the same lawful purpose — comes in a like suitable condition, and with as proper a demeanor ; any more than he has the right to admit one traveller and exclude another, merely because it is his pleasure. If one comes to injure his house, or if his business operates directly as an injury, that may alter the case — but that has not been alleged here.

And perhaps there may be cases in which he may have a right to exclude all but tra-vellers and those who have been sent for by them. It is not necessary to settle that at this time. In the present case it appeared that stage coaches brought their passengers to the plaintiff’s inn from various quarters, and carried them away in different directions.

It is understood that Hanover was not a place where the lines of stages or conveyances terminated, and where passengers were left to seek their own conveyance onward, as is often the case in the larger cities; but that the line of stages extended through the place in such manner that travellers might reasonably expect conveyances onward would be tendered for their use. The drivers of some of the coaches were accustomed to resort to the plaintiff ’s inn, and boarded there. Under these circumstances, we see no objection to the first part of the charge to the jury.

The defendant had clearly a right to establish a line of stage coaches, and to go to the plaintiff’s inn with travellers, and lie might of course lawfully enter it for the purpose of leaving their baggage and receiving his fare.

And we are of opinion that, so long as others were permitted to do the same, the defendant had an equal and lawful right, notwithstanding any prohibition by the plaintiff, to enter the plaintiff’s inn for the purpose of tendering his coach for the use of travellers, and soliciting them to take passage with him; and for that purpose to go into the common public rooms of the inn, where guests were usually placed to await the departure of the stages, although he was not requested by such guests; provided there was a reasonable expectation that passengers might be there, and he came at a suitable time, in a proper manner, demeaned himself peaceably, and remained no longer than was necessary, and was doing no injury to the plaintiff.

But the jury should have been instructed that the defendant might forfeit this right by his misconduct, so that the plaintiff might require him to depart, and expel him ; and if, by reason of several instances of misconduct, it appeared to be necessary for the protection of his guests or of himself, the plaintiff might prohibit the defendant from entering again, until the ground of apprehension was removed.

Thus if affrays or quarrels were caused through his fault, or he was noisy, disturbing the guests in the house — interfered with its due regulation — intruded into the private rooms — ■ remained longer than was necessary, after being requested to depart — or otherwise abused his right, as by improper importunity to guests to induce them to take passage with him ; the plaintiff would have a right to reform that, and, if necessary, to forbid the defendant to enter, and treat him as a trespasser if he disregarded the prohibition.

So, if, after a lawful entry of the defendant, he committed an assault upon the plaintiff, or any trespass upon his property ; the plaintiff might treat him as having entered for the unlawful purpose, and as a trespasser ab initio. 8 Co. (Dub. ed.) 291; 10 Johns. 373; 12 Johns. 408; 11 East. 402; 5 Taunt. 198. Perhaps a trespass upon the person or property of a guest might come within the same rale — but this is not clear, and need not now be settled.

If others were guilty of an assault upon the defendant, or of misconduct towards him, that would not justify him in making an assault, except in self-defence, nor furnish an excuse for improper conduct on his part; but if he behaved himself with propriety, the misconduct of the drivers of other lines towards him would furnish no ground for his exclusion, unless it was at the time of a disturbance, and for the purpose of restoring quiet to the house. As the jury were not correctly instructed upon these points there must be a New trial.