unconstitutional so far as it gives a lien on property of a person other than the guest. When the piano came into the possession of the defendant through her guest a part of the unpaid account had accrued; a part accrued thereafter while Carlisle remained a transient guest in the defendant's hotel, and the remaining part of the unpaid account accrued while Carlisle was the occupant of the apartments in the defendant's hotel as a guest at an agreed price per year. If the defendant had a lien on the piano for any part of the account claimed by her, she was entitled to retain possession of it, and the plaintiff's demand and claim for the possession of the piano cannot be sustained.

It is only necessary to consider whether an innkeeper has a lien on goods rightfully in the possession of a transient guest when such goods are the prop erty of a third person.

Two questions arise for our consideration:

1. Did the common law of England, on and prior to the 19th day of April, 1775, give to an innkeeper a lien on goods owned by a third person in the rightful possession of a guest for the value of his entertainment?

2. Apart from the question whether such lien was so given by the common law, is the act so far as it gives a lien upon the goods owned by a third person in the rightful possession of a guest a violation of our Constitution?

Americans claim the common law of Englond as their natural heritage and shield (Black's Constitutional Law, 9). The universal principle (and the practice has conformed to it) has been that the com mon law is our birthright and inheritance, and that our ancestors brought hither with them upon their emigration all of it which was applicable to their situation. The whole structure of our present jurisprudence stands upon the original foundation of the common law (1 Story on the Constitution, sec. 157). The Continental Congress in its declaration of rights asserted that "The respective colonies are entitled to the common law of England."

In the first Constitution of this State, adopted in 1777, it is provided as follows: "And this convention doth further, in the name and by the authority of the good people of this State, ordain, determine and declare that such parts of the common law of England, and of the statute low of England and Great Britain, and of the acts of the Legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this State, subject to such alterations and provisions as the Legislature of this State shall, from time to time, make concerning the same. Section 35.) Substantially similar provisions were included in the second and third Constitution of this State, and

in the Constitution of 1894 (article 1, section 16) it is provided as follows: "Such parts of the common law and of the acts of the Legislature of the colony of New York as together did form the law of the said colony on the nineteenth day of April, one thousand seven hundred and seventy-five which have not since expired, or been repealed or altered, . . shall be and continue the law of this State, subject to such alterations as the Legislature shall make concerning the same. But all such parts of the common law, and such of the said acts, or parts thereof, as are repugnant to this Constitution, are hereby abrogated."

The principles and rules of organized society found in the English common law, so far as applicable to our conditions, became and continue in force unless abrogated or modified by express constitutional or statutory enactments.

Constitutions and statutes should be construed with reference to the doctrines of the common law. (Black's Constitutional Law, 69; American and English Encyclopedia of Law, 2d ed., vol. 6, p. 270; 8 Cyc., 377, 383.)

In construing the constitutional and statutory provisions, which provide that a person shall not be deprived of life, liberty or property without due process of law, it should not be held that there was an intention by convention or Legislation to forbid or in any way affect the right to any lien upon property which had been recognized and sustained by the common law and thus by the law of the land. The writers in encyclopedias and text-books with singular unanimity have asserted that an innkeeper has a lien at common law upon all goods in the rightful possession of his guest for the value of the guest's entertainment. From many of them we quote:

It is

The American and English Encyclopedia of Law (2d ed., vol. 16, p. 548) says: Corresponding to the extraordinary liabilities which the law imposes on innkeepers is the extraordinary privilege of a lien on the effects of guests for the amount of the reasonable charges for the guest's entertainment. . essential to the existence of the lien that the goods on which it is claimed should have been brought to the inn by a person coming in the character of a guest, but it is not essential that the guest should in all cases be the owner of the goods."

The Encycloperia of the Laws of England (vol. 6, p. 497) says: "He (an innkeeper) is entitled to a general lien upon all goods brought by the guest to the inn for the board and lodging of the guest and his servants and the keep of his horses."

The Cyclopedia of Law and Procedure (vol. 22, p 1090) says: "Where a guest brings to an inn goodi ostensibly his the lien of the innkeeper attaches t the goods although they were in fact the goods of a third person."

In Beale on Innkeepers and Hotels (sec. 261, p.

In Wait's Law and Practice (5th ed., vol. 1, 655) it is said: "The law gives to any innkeeper a lien whether the goods are the property of the traveler or the property of third parties from whom it has been hired, or even fraudulently taken or stolen, if the innkeeper has no notice of the wrong and acts honestly."

In Parsons on Contracts (7th ed., vol. 2, p. 156) it is said: "An innkeeper has a lien on the property of the guest (not on his person) for the price of his entertainment, even if he be an infant. And he has this lien on goods brought to him by a guest, although they belong to another person."

In Overton on the Law of Liens (sec. 123, p. 150) it is said: "If property, goods, horses or the like are brought by a guest to an inn at which he obtains accommodations and leaves the property in custody of the innkeeper it seems the lien will attach thereto whether it belong to a guest or to a third person for whom the guest is bailee, or, indeed, even if it had been stolen by the guest. For the innkeeper is bound to receive and entertain the guest, and when unaccompanied by any suspicions would not be justified in inquiring into the title to the property delivered by the guest to his possession. Possession is prima facie evidence of ownership." In Edwards on the Law of Bailments (3d ed., sec. 474, p. 363) it is said: "The relation of innkeeper and guest being established, the lien covers the goods, baggage and property of the guest and all such things as the guest brings with him; it extends to whatever the guest brings and the innkeeper receives; it is not limited to property of the guests or to things of material or intrinsic value. . . The innkeeper is bound to receive the guest and cannot stop to investigate his title to the property he brings with him, and it may be added he is also liable for the safekeeping of the goods, though they may be the property of a third person."

In Jones on Liens (2d ed., sec. 499, p. 303, vol. 1) it is said: "Thus it has become the settled law with reference to this lien that there is no distinction be tween the goods of a guest and those of a third person brought by a guest and in good faith received by the innkeeper as the property of the guest. The innkeeper cannot investigate the title of property brought by his guests, and is bound, unless there is something to excite suspicion, to receive not only his guest, but his horse or other property brought by him as belonging to him, because it is in his possession." And in section 501, page 304, it is said: "It is now settled, however, that the lien is not limited to such things as a guest ordinarily takes with him. An innkeeper who receives a piano in his character as innkeeper, believing it to be the property of his guest, is entitled to a lien upon it for his guest's

property of another person who had consigned it to the guest to sell on commission."

In Schouler on Bailments and Carriers (3d ed., sec. 326, p. 327) it is said: "The law grants him (the innkeeper) as security for unpaid charges a lien upon all movable property which the guest may have brought with him to the house and placed in the legal custody of the innkeeper as bailee. Even where the thing belonged to a third person and the guest himself had only a bailee's right therein or was an agent for the owner, the innkeeper's lien will attach provided only he received the property on the faith of the innkeeping relation. And the innkeeper's knowledge that the guest did not own the goods does not affect the case unless he knew that the possession was wrongful. . . . An innkeeper's rightful lien ought fairly to be coextensive with his liability for all such property of other persons."

In Story on Bailments (9th ed., sec. 476, p. 446) it is said: "It has been said that the horse of a guest can be detained only for his own meals, and not for the meals and expenses of the guest. The reason is said to be that chattels are in the custody of the law for the debt which arises from the thing itself and not for any other debt due from the same party, for the law is open to all such debts and doth not admit private persons to make reprisal. This may be correct as to all debts than the debt contracted by the party as a guest, but there seems reason to doubt whether the lien of an innkeeper does not extend to all the goods which a guest has at an inn for all his expenses there. The general rule seems in favor of such a lien whether any expense has been incurred on the particular goods or not. The cases cited to support the opposite doctrine do not seem to justify it."

In Monchieff on Liability of Innkeepers (pages 55 to 56) it is said: "An innkeeper has a lien for the reckoning of his guest upon all those goods for which he as innkeeper becomes liable. His lien is coextensive with his liability, neither wider nor narrower. . . This lien will endure even as against a third party being the real owner, provided that the innkeeper when he undertook the custody of the goods did not know that they did not belong to his guest."

In Cowen's Treatise (6th ed., vol. 1, page 359) it is said: "His (an innkeeper's) lien for the keeping of the horse or other property of his guest is valid as against the true owner, although the guest did not own it, and even when he stole it if it was received and kept without knowledge of the facts."

In Wharton's Law of Innkeepers (page 118) it is said: "The innkeeper has, therefore, a lien upon all goods brought by a guest.

.

He is not bound to inquire whether his guest is the owner of goods he brings with him to the inn, but only whether he

comes as a guest, but he is bound to receive the goods whatever their nature, provided he has sufficient accommodation, and has therefore, a lien upon such goods which cannot be defeated even by the true owner."

In a note to Calyes' Case (1 Smith's Leading Cases, 9th ed., page 259) it is said: "By the common law an innkeeper has a lien upon all the goods of the guest brought to the inn for board and lodging furnished by him to the guest at the request of the latter. And this is so although the goods may not be the property of the guest but belong to some third person, provided the innkeeper is not aware that the goods are not the property of the guest."

The appellant admits that the courts of this State and of England, and the text-book writers, without material exception, hold that an innkeeper has at common law the right to retain all of the goods brought by a guest to the possession of the innkeeper as security for the payment of his charges for the accommodation of the guest, and that it is not necessary for the innkeeper to make inquiry as to the ownership of the goods so brought by a guest into his possession; but he asserts that this is the modern rule, and not the rule of the common law of England prior to 1775. He claims that the modern rule was first asserted in England in 1856 (Snead v. Watkins, 1 C. B., N. S. 267), and in this country in 1864 (Jones v. Morrill, 42 Barb. 623).

A brief general reference to the common law will aid in considering how we are to determine what a particular rule of such common law was at a given time. The common law of England is of great antiquity. It consists of rules established by custom. These rules, affected as they were in their inception by the views, habits and necessities of the different peoples which mingled in the early history of the Britons, were principally retained in memory and handed down from person to person and from generation to generation until by custom they became the unwritten law of the realm. Some of these rules are stated in the earliest codes prepared by the Saxon law givers, and some are stated in subsequent reported decisions in contested cases. The printed reports of cases decided for many years subsequent to the discontinuance of the Year Books were prepared by unofficial reporters and consisted of such cases as were selected by them for that purpose, and the same case was sometimes reported by more than one person, and many of the cases so reported were contradictory and unsatisfactory. It is obvious that where a particular custom was not stated in the report of a decision in a contested case or where the custom in such case was not stated by the writings of men learned in the law it rested wholly in memory or a generally recognized tradition. The digests and even the treatises on legal subjects then, as now, followed principally along the lines of the reported decisions,

case.

and it is not even in recent years an uncommon thing to discover that a custom or principle of law of common knowledge has never been stated in a reported Where recognized printed reports of the English courts prior to 1775 show that the common law on any particular subject was by such case estab lished and determined as therein stated such reports are the best and highest evidence of such common law. Where the rules of the common law relating to a matter under consideration are not expressly stated in the reported cases of the English courts prior to 1775, the statement of the courts of this country and of England subsequent to that time, especially when they do not purport to modify the common law, are not only entitled to careful consideration, but to great weight in determining the common-law rule prior to 1775. An unreserved statement by a court as to the common-law rule will, in the absence of other authority, be assumed to be based upon custom and the unwritten law long ontedating such time.

Our courts have frequently asserted that at common law an innkeeper has a lien upon the goods of his guest although such goods are the property of a third person. (Jones v. Morrill, supra; Betts v. Salisbury, 12 Abb. L. J. 337; Grinnell v. Cook, 3 Hill, 485; Ingallsbee v. Wood, 36 Barb. 452; Briggs v. Todd, 28 Misc. Rep. 208; Wilkins v. Earle, 3 Robt. 368; S. C. 44 N. Y. 172; Smith v. Keyes, 2 T. & C. 650; Hulett v. Swift, 33 N. Y. 571; Peet v. McGraw, 25 Wend. 653.)

The common-law rule in England and its ancient origin is stated by Lord Escher, Master of the Rolls, in Robbins v. Grey, 2 Queen's Bench, 501, as follows: "I have no doubt about this case, I protest against being asked, upon some new discovery as to the law of innkeeper's lien, to disturb a well-known and very large business carried on in this country for centuries. The duties, liabilities and rights of innkeepers with respect to goods brought to inns by guests are founded not upon bailment, or pledge, or contract, but upon the custom of the realm with regard to innkeepers. Theeir rights and liabilities are dependent upon that and that alone; they do not come under any other head of law. What is the liability of an innkeeper in this respect? If a traveler comes to an inn with goods which are his luggage-I do not say his personal luggage, but his luggage-the innkeeper by the law of the land is bound to take him and his luggage in. The innkeeper cannot discriminate and say that he will take in the traveler but not his luggage. If the traveler brought something excep tional which is not luggage-such as a tiger or a package of dynamite-the innkeeper might refuse to take it in; but the custom of the realm is that unless there is some reason to the contrary in the exceptional character of the things brought he must take in the traveler and his goods. He has not to inquire whether the goods are the property of the person who

.

brings them or some other person. If he does so inquire, the traveler may refuse to tell him, and may say, 'What business is that of yours? I bring the goods here as my luggage, and I insist upon your taking them in,' and then the innkeeper is bound by law to take them in, or he may say: 'They are not my property, but I bring them here as my luggage and I insist upon your taking them in.' Then the innkeeper's liability is not that of bailee or pledgee of goods; he is bound to keep them safely. It signifies not, so far as that obligation is concerned, if they are stolen by burglars or by servants of the inn, or by another guest, he is liable for not keeping them safely unless they are lost by the fault of the traveler himself. That is a tremendous liability; it is a liability fixed upon the innkeeper by the fact that he has taken the goods in, and by law he has a lien upon them for the expense of keeping them as well as for the cost of the food and entertainment of the traveler. By law that lien can be enforced not only as against the person who has brought the goods to the inn, but against the real and true owner of them. That has been the law for two or three hundred years, but to-day some expressions used by judges and some questions (immaterial as it seems to me) which have been left to juries are relied on to establish that if the innkeeper knows that the goods are not the goods of the person who brings them to the inn he may refuse to take them in, or if he does take them in he has no lien upon them. . . . Now, is there any decided case in which it has been held that, although they have been brought to an inn as the luggage of the traveler and received as such by the innkeeper, he has no lien upon them if he knows that they are not the goods of the traveler? There is not one such case to be found in the books.

If we were to accede to the argument for the appellants we should be making a new law, and our decision would produce in very many cases great confusion and hardship. I am of opinion that an innkeeper is bound to take in goods with which a person who comes to the inn is travelling as his goods, unless they are of an exceptional character; that the innkeeper's lien attaches, and that the question of whose property they are, or of the innkeeper's knowledge as to whose property they are, is immaterial."

Each of the cases so reported is a claim of lien for the keep of a horse which had been brought to the innkeeper by one not the owner thereof. In the first case it does not clearly appear that the person who brought the horse to the inn was personally a guest of the innkeeper. The chief justice being absent, the other members of the court were evenly divided upon the question as to whether the innkeeper could retain the horse until he be paid and satisfied for his meat. The lien was asserted for the reason, and two of the judges held, "that the innkeeper here is not bound to take knowledge of the true owner of this horse thus left to stand in his inn at hay by another."

In the second case the claim of lien is wholly for the keep of the horse against which the lien is claimed. The horse had been left with the innkeeper for half a year, and it was resolved by the court "that the defendant's plea was good, for the innkeeper was compellable to keep the horse and not bound at his peril to take notice of the owner of the horse. And by the custom of Lond. if a horse be brought to a common inn, where he hath (as it is commonly said) eaten out his head, it is lawful for the innkeeper to sell him, and there is a difference where the law compels a man to do a thing and where not."

In one of the reports it appears that one of the judges, in addition to holding that the innkeeper was entitled to a lien because he was compelled to receive the horse, also said that "the owner would have had to find meat for his horse, and for that reason it is right he should satisfy it now to the innkeeper, for he will not be to a greater charge than he must have been if he himself had fed him."

In the third case a horse, saddle, bridle and saddle cloth were brought to the inn. The innkeeper claimed a lien on the horse for its keep, which claim was sustained. The report further says: "But some question was made whether he might retain the saddle, bridle and cloth as well as the horse."

And in the fourth case the lien was sustained upon the ground that the innkeeper was bound to receive and entertain guests and therefore might detain the goods of guests till payment.

is allowed a lien for his reasonable charges in connection therewith. In the early decisions there is some confusion as to whether an innkeeper had a general lien for his charges on the goods brought by a guest to the inn or whether the lien was solely upon the particular property benefited or preserved. The special or particular lien as distinguished from a general lien is based upon the benefit derived by the owner of the particular property in having it improved or preserved, as in the case of a disabled or derelict ship at sea, in which case salvage is allowed. Where the lien is based upon the fact that the person or property has been benefited or preserved by the innkeeper in furnishing accommodation and food

therefor the ownership of the property is immaterial. The lien extends only to the property benefited or

preserved, even if it is brought to the inn by the

owner.

Little if any claim on which to base a particular lien could be made against inanimate objects. Such a lien would not answer the demands of public policy in the case of an innkeeper and his guest. The liability of an innkeeper at common law as a bailee is not questioned. Public policy required that an innkeeper should receive as guests all travelers applying to him for accommodation, together with the luggage and property in their possession. The innkeeper became responsible for the personal safety of the guest and an insurer of the luggage and personal property in his possession against all loss and damage not occasioned by the act of God, the public enemy or the negligence of the guest himself. From a time prior to 1775 the general lien of an innkeeper upon the goods owned by the guest has been conceded, and it is not now disputed by the appellant. The reason for the generol lien is as applicable against the property of third persons in the possession of the guest as against the property of the guest himself. Because the innkeeper was compelled to receive the traveler and accept the extraordinary liability, which extends not only to the luggage and personal property owned by the traveler but to the luggage and personal property in his possession, although owned by another, it was necessary to give to the innkeeper a compensatory lien for his charges to make the maintenance of inns desirable. The extraordinary liability and the lien are concurrent and go hand in hand, and together make up the rule founded on public policy.

The four old cases especially called to our attention recognize the reason for the rule and to that extent justify the claim that such lien was given even against the property of third persons prior to 1775. In no one of the cases reported since 1775, either in this State or in England, where an alleged lien by an innkeeper against the goods of a third person has been sustained, has it been suggested that the court was thereby extending the common law as it existed in England prior to 1775. In each case the lien is

sustained upon the common law as it existed at the time the decision was made, which rule could not then have existed except by reason of a custom which had continued for such a period of time that the memory of man runneth not to the contrary. The statutory rule adopted by this State in 1897 does not, in our judgment, extend the rule so far as it relates to the property of a third person in the lawful possession of a guest beyond the rule of the common law as it existed prior to 1775.

The reason for the rigorous rule of the common law is well stated in Crapo v. Rockwell, 48 Misc. Rep. 1. Although the conditions which existed when

the rule was established at common law have mate

rially changed, the same considerations of public policy justify the maintenance of the rule at the present time. So our courts have held from time to time. Thus in Hulett v. Swift, 33 N. Y. 571, referring to the responsibility of an innkeeper for the safekeeping of property committed to his custody by a guest, this court says:

"This custom, like that in the kindred case of the common carrier, had its ori

gin in considerations of public policy. . . . The safeguards of which the law gave assurance to the

wayfarer were akin to those which invested each English home with the legal security of a castle.

the rule had its origin forbid any relaxation of its The considerations of public policy in which rigor. creased facilities of communication have so multiplied The growth of commerce and inthe class for whose security it was designed that its abrogation would be the removal of a safeguard immediate interest. against fraud in which almost every citizen has an The traveler is entitled

to claim entire safety for his goods as against the landlord who fixes his own measure of compensation his charges against the owner. and holds the property in pledge for the payment of .. The rule is

a salutary one and should be steadily and firmly upheld, subject to the statutory regulations for the protention of hotel proprietors from fraud and negligence on the part of their guests." (See Wilkins v. Earle, 44 N. Y. 172.)

In Briggs v. Todd, 28 Misc. Rep. 210, it is said: "In the mammoth hotel of to-day, with its numberless rooms, its army of servants, its incessant stream of arriving and departing transients, the property of the guest is at the mercy of many people. His own room is necessarily accessible to a number of the employees of the hotel, where fraud or neglect may subject him to loss. He cannot prevent the injury and after he has suffered it he is powerless to detect or prove guilt. The stranger disappears and the servants protest ignorance and innocence.

Considerations of public policy which, in the interest of commercial prosperity and social welfare, require that intercourse in and between cities and