case gelley against clerk easter term James roll if a guest leave his good  with a innkeeper say that he will return in three day and before his return  his good be steal he can maintain a action on the custom of the realm for at  the time the good be steal he be not a guest and therefore as the innkeeper  can not gain a profit he shall not be liable to suffer loss without a special  undertake post action upon the case upon the common custom of the realm  against the defendant be a innkeeper of Uxbridge for not keep safe the good of  the plaintiff be his guest upon not guilty plead it be find by special verdict  that the plaintiff be a guest in the say house go from thence to London and  leave his good with the defendant say he will return within two or three day  he return accord within the three day and in the interim croak throw his good  be steal when he be absent the question be whether the defendant as a inn  keeper by the common custom of the realm shall be charge without any special  promise for the safe keep of they a it be now aid by James c croak James er p  foster sergeant for the plaintiff move that he shall for when he be a guest  and leave his good for so short a time and promise to return so soon and  return accord he be all that time account as a guest and shall be say to be a  guest to charge the defendant as a innkeeper accord to the custom of the realm  and it be adjudge in the case of sir Edwyn sand where he come to all inn and  lodge and go out thereof in the morning and leave his cloakbag there intend to  return at night and at night return accord and in the interim his cloakbag be  steal that he may have his remedy by a action ground upon the common custom so  here c William justice if one come to a inn and leave his good and horse and  go into the town and after return and in the interim his good be steal no  doubt but he be a guest and shall have remedy and so be sir Edwyn sand case  for his absence in part of the day be not material but he be always repute as  a guest so where one leaves his horse at a inn to stand there by agreement at  livery although neither himself nor any of his servant lodge there he be  repute a guest for that purpose and the innkeeper have a valuable  consideration and if that horse be steal he be Chargeable with a action upon  the common custom of the realm but as in the case at the bar where he leaves  good to keep whereof the defendant be not to have any benefit and go from  thence for two or three day although he say he will return yet he be at his  liberty and therefore be not a guest during that time nor be the innkeeper  Chargeable as a common ostler for the good steal during that time unless he  make a special promise for the safe keep of they and the action ought to be  ground upon it all the other justice be of that opinion absent Fleming chief  justice but because it be a new case they will advice et adjournatur a