¶1As there was no negligence on the part of the intestate, he was not liable for the loss, unless he was an insurer of the property. There was no express contract of insurance, and none can be implied, unless it sprung from the relation of innkeeper and guest. No such relation existed between the parties. The horse was left at the stable by one who was not, and did not expect to be, a guest at the inn. There was no contract, either express or implied, except for the keeping of the animal for the night; and this created no other or greater liability than if the intestate, instead of being an innkeeper, had been the proprietor of a livery stable. The liveryman, like the agistor, has no lien on the property committed to his charge. (Grinnell v. Cook,3 Hill, 486, 492; Fox v. McGregor,11 Barb., 41; Wallace v.Woodgate, 1 Car. Payne, 575; Jackson v. Cummins, 5 Mees. Wels., 342.)
¶2The liability of the innkeeper as an insurer presupposes the relation of host and guest. It had its origin in an ancient custom of the realm, which fixed the correlative rights and obligations of the parties, by securing to the traveler a special remedy for his goods, and to the host a specific lien for his charges. These were peculiar and mutual rights accessory to the particular relation. But an innkeeper is not restricted to the special business of his calling, and he is free to contract with those, who do not care to become his guests. When he receives property from one, who is neither a guest nor a traveler, the custom of the realm has no application. The property is subject to no lien and protected by no insurance. His obligation is simply that of an ordinary bailee for hire. (Binns v. Pigott, 9 Car. Payne, 208; Grinnell v. Cook,3 Hill, 485; Hickman v. Thomas,16 Ala., 666; Thickston*579 v. Howard,8 Blackf., 535; Towson v. Havre de Grace Bank, 6 Har. Johns., 47.)
¶3The theory of the appellant, that one who contracts for the stabling of his horse by an innkeeper, is constructively an inmate of his house, is supported by a case reported in Massachusetts, but we think that decision was made under a misapprehension of the law. (Mason v. Thompson,9 Pick., 280.) Its correctness has since been questioned by the court in which it was pronounced. (Berkshire Woolen Co. v. Proctor,7 Cush., 425-6.) The authorities, on which it rests for support, were fully considered in the able opinions delivered by Judge BRONSON, in the case of Grinnell v. Cook, and by Judges POTTER and BOCKES in the present case in the court below, and we think their reasoning conclusive against the doctrine, that an innkeeper can be held as an insurer of property, received from one who is neither traveler nor guest.
¶4The judgment should be affirmed, with costs.