(4.) The locatio operis mercium vehendarum, is a contract relating to the carriage of goods for hire; and this

mitted to keep a tavern without a license from the court of common pleas of the county. Statutes of Ohio, 1831. By the act of Kentucky of 1834, no tavern within any town or city, or within one half mile thereof, can be kept without license, even though spirituous liquors be not retailed. So, in Vermont, no person can keep an inn without a license from the county court; and a license to keep a victualling house will not authorize a person to keep a house for public entertainment; and a person may keep an inn without selling spirits or wine. State v. Stone, 6 Vermont Rep. 295. In Connecticut a distinction is made by statute between taverns and victualling houses. Both kinds require a license, but tavernkeepers only have a license to retail spirituous liquors. The victualling houses are called also houses of refreshments. Statutes of Connecticut, 1838, p. 592—595. In Massachusetts there seems to be three descriptions of persons in purview of the Revised Statutes, c. 47; (1.) A common innholder, who sells liquors and provides accommodation for man and beast ; (2.) A common victualler who sells liquors and food only. Both of these must be licensed; (3.) A common grog-shop or drinking housekeeper who is not entitled to a license. Commonwealth v. Pearson, 3 Metc. 449. In North and South Carolina, a person is indictable for retailing spirituous liquors without license, and in the former state public inns are called in the statute ordinaries. 1 N. C. R. S. p. 445. State v. Morrison, 3 Dev. N. C. Rep. 299. The State v. Mooty, 3 Hill's N. C. Rep. 187. Tavernkeepers and innholders are generally used synonymously; and as the local laws in all the states prohibit persons from retailing spirituous liquors, and in Alabama, by act of 1807, even beer or cider, without a license, that license ordinarily becomes essential to the character, and, in some instances, to the lawfulness of a public inn or tavern. In Tennessee the prohibition to retail spirituous liquors is held not to include wine which is procured by fermentation, and only those liquors which are procured by distillation. Caswell v. The State, 2 Humphrey, 402. Since the growth and diffusion of temperance societies, the restric. tions by law on the retail of spirituous liquors have greatly increased. In Massachusetts, by statute in 1838, the retail of spirituous liquors under fifteen gallons was wholly prohibited. By the revised statutes of Massachu setts of 1836, ch. 47, no person can be an innholder or seller of spirituous liquor to be used about his house or other building without license. Licenses to innkeepers and retailers may be granted for each town and city, and licenses may be confined to the sale of fermented liquors, such as wine, beer, ale and cider, and excluding the sale of brandy, rum or other spirituous liquors. The interdiction in Mississippi, was limited to one gallon, and in most of the states the regulations on the subject have become very strict. The laws of the Old Plymouth Colony, (edit. 1836, by W. Brigham, p. 287,)

is by far the most important, extensive, and useful, of all the various contracts that belong to the head of bailment.

declared, that no person licensed to keep a public house of entertainment, should be without good beer.

Innkeepers are liable to an action if they refuse to receive a guest without just cause. See infra, p. 634. The innkeeper is even indictable for the resusal, if he has room in his house, and the guest behaves properly. Rex v. Ivers, 7 Carr. f Payne, 213. In the case of the State v. Chamblyss, 1 Cheve': S. C. Law Rep. 220, the subject of inns and taverns was elaborately discussed. It was held by a majority of the court that a license to keep a tavern included also the privilege of retailing spirituous liquors, in small quantities, to travellers and guests. The minority of the court held that the tavern license and the license to retail were two distinct things, and that the former license did not necessarily include the otber. It would appear from the learned investigations in that case, that a tavera was originally a place where the keeper sold wine alone, but in process of time the seller of wine (including other strong drinks) began to supply food and lodging for wayfaring men, and the term tavern became to be synony. mous with that of inn, as far back as the reign of Elizabeth. The preamble to the statute of 1 J. I. c. 9, declared that “the ancient true and principal use of inns, ale-houses and victualling houses, was for the receipt, relief and lodging of wayfaring people, travelling from place to place, and not meant for entertainment and harbouring of lowd and idle people, &c." The statutes of 2 J. I. c. 7.–4 J. I. c. 5.—and I C. I. c. 4, show also the primitive use of the inn, now commonly called a tavern. That in the sta. tutes of South Carolina, both under the colony and under the state, inns and taverns have been used promiscuously for places where spirituous li. quors were sold under a license. But there were licensed retailers of spirituous liquors who do not keep a tavern, and there were licenced retail. ers who keep a tavern and retail spirituous liquors as part of the entertainment, together with food, lodging, &c., for travellers and wayfaring people. The mere business of entertaining travellers and others with food, lodg. ing, &c., does not require an excise license. They are not tavern keepers within the purview of the excise laws, but innkeepers in the primitive sense, and they are entitled to some of the privileges, and subject to some of the liabilities of keepers of taverns. I presume they are responsible for the goods of their guests to the extent of innkeepers and tavernkeepers at common law. The regulations of some late English statutes (11 Geo. IV. and 1 Wm. IV. c. 64, and 4 and 5 Wm. IV. c. 85,) are very strict even as to beer houses. No person licensed to sell beer by retail shall have or keep his house open for the sale thereof, nor retail the same, or suffer it to be drank in or at his house before 4 A. M. and after 10 P. M.; nor at any time between 10 A. M. and 1 P. M.; nor between the hours of 3 and 5 o'clock P. M. on Sundays.

The carrier for hire in a particular case, and not exercising the business of a common carrier, is only answerable for ordinary neglect, unless he by express contract assumes the risk of a common carrier.& But if he be a COMMON CARRIER, he is in the nature of an insurer, and is answerable for accidents and thefts, and even for a loss by robbery. He is answerable for all losses which do not fall within the excepted cases of the act of God, (meaning inevitable accident, without the intervention of man) and public enemies. This has been the settled law of England for ages; and the rule is intended as a guard against fraud and collusion, and it is founded on the same broad principles of public policy and convenience *which govern the case of innkeepers.b *598 This principle of extraordinary responsibility was taken from the edict of the prætor in the Roman law, and it has insinuated itself into the jurisprudence of all the civilized nations of Europe. But the rule in the civil law was not carried to the severe extent of the English common law. So in France, common carriers are not liable for losses resulting from superior force, as robbery, for that comes within the damnum fatale of the civil law which exempted the carrier;d and the same rule has been adopted in the Civil Code of Louisiana.e In Scot

· Robinson v. Dunmore, 2 Bos. of Pull. 416. Brind v. Dale, 8 Carr. f Payne, 207. But in Gordon v. Hutchinson, 1 Watts & Serg. 285, the rule was carried out more extensively, and it was held that a wagoner who carried goods for hire, was responsible as a common carrier, though trang portation was only an occasional and incidental employment, and this decision seems to be founded in better policy as applicable to business in this country.

o Co. Litt. 89. a. Woodleife v. Curtis, 1 Rol. Abr. 2 E. pl. 5. Lord Holt, in Coggs v. Bernard, 2 Lord Raym. 918. Lee, Ch. J., in Dale v. Hall, 1 Wils. Rep. 281. Forward v. Pittard, 1 Term Rep. 27. Proprietors of the Trent Navigation v. Wood, 3 Esp. Rep. 127. Riley v. Horne, 5 Bing. Rep. 217.

Dig. 4. 9. 1. Ib. 4. 9. 3. 1.
d Code Civil, art. 1782. 1784. 1929. 1954.
• Art. 2722. 2725. 2939.
Vol. II.


land, loss by fire is also considered as one happening by inevitable accident, and for which the carrier is not responsible ; but Mr. Bell insists that loss by robbery ought not to be deemed an exception to the responsibility of the carrier, and that the many practical illustrations in the English law ought to be received “as of more authority than hundreds of dicta rescued from the cobwebs of the civilians."a

Common carriers undertake generally, and not as a casual occupation, and for all people indifferently, to convey goods, and deliver them at a place appointed, for hire as a business, band with or without a special agreement as to price. They consist of two distinct classes of men, viz. : inland carriers by land or water, and carriers by sea; and in the aggregate body are included the owners of stage wagons and coaches, and rail-road cars, who carry goods as well as passengers for hire, wagoners,

teamsters, cartmen, porters, the masters and owners *599 of ships, vessels, and all watercraft, *including steam

vessels and steam tow boats, belonging to internal. as well as coasting and foreign navigation, lightermen, barge-owners, canal-boatmen, and ferrymen. As they hold themselves to the world as common carriers for a reasonable compensation, they assume to do and are bound to do what is required of them in the course of their employment, if they have the requisite convenience to carry, and are offered a reasonable or customary price; and if they refuse without some just ground, they are liable to an action.d

: 1 Bell's Com. 470. The English and American decisions held the common carriers responsible for loss by fire. See infra, vol. iii. 304. Hale v. N. Jersey Steam Navigation Company, 15 Conn. R. 539, S. P.

o Gisbourn v. Hurst, 1 Salk. Rep. 249. Brind v. Dale, 8 Carr. f P. 207. In this last case Lord Abinger suggested, that a town carman, whose carts ply for hire near the wharves, was not a common carrier. See Story on Bailments, 323, n. 3, 2d edit., who strongly, and I think properly, questions the solidity of this distinction.

• Lawrence, J., in Harris v. Packwood, 3 Taunt. Rep. 264. Story on Bailment, 495, 3d edit.

Jackson v. Rogers, 2 Show. Rep. 332. Lord Kenyon, and Ashhurst,

In Morse v. Slue, a it was decided, in the reign of Charles II., by the court of K. B., upon great consideration, that the master of a vessel employed to carry goods beyond sea, in consideration of the freight, was answerable as a common carrier. It was admitted in that case, and afterwards declared by Lord Hardwicke, in Boucher v. Lawson,b that the action lay equally against masters and owners of vessels. The doctrine in those cases has been recognized ever since ;c and it applies equally to the carrier of goods in the coasting trade from port to port,d and to a bargeman and hoyman upon a navigable river.e The cases are contradictory as to its application to wharfingers ; and the latter cases do not *make *600 the application to them. They are all liable in

J., in Elsee v. Gatward, 5 Term Rep. 143. Holroyd, J., in Batson v. Do. novan, 4 Barn. f Ald.32. Pickford v. Grand J. Railway Co., 8 Mees. of Welsby, 372. 1 Bell's Com. 467. Dwight v. Brewster, 1 Pick. Rep. 50. Jenks v. Coleman, 2 Sumner, 221. Story's Com. on Bailments, p. 322, 323, 2d edit. Bonney v. The Huntress, District Court of Maine, 1840, Pomeroy v. Donaldson, 5 Missouri Rep. 36. Patton v. Magrath, Dud. ley's S. C. Law of Eq. Rep. 159. Hale v. New-Jersey Steam Co., 15 Conn. Rep. 539. See also infra, p. 608, 609. An action against a common carrier upon the custom is founded upon a tort, and arises ex delicto; and it is unnecessary to join as defendants all the owners of the vehicle employed in the conveyance. Orange Bank v. Brown, 3 Wendell's Rep. 158.

• 1 Vent. Rep. 190.238, 2 Lev. Rep. 69. Barclay v. Gana, 3 Doug. 389, S. P.

b Cases temp. Hardw. 183.
c See Goff v. Clinkard, cited in 1 Wils. Rep. 282.

d Dale v. Hall, 1 Wils. Rep. 281. Proprietors of the Trent Navigation v. Wood, 3 Esp. Rep. 127.

e Rich v. Kneeland, Cro. Jac. 330. Wardell v. Mourillyan, 2 Esp. N. P. Cas. 693. Elliott v. Rossell, 10 Johns. Rep. 1.

i Ross v. Johnson, 5 Burr. Rep. 2825. Maving v. Todd, 1 Starkie's Rep. 72, are cases which countenance the idea that wharfingers are liable as common carriers, but later authorities justly question this doctrine, and in Roberts v. Turner, 12 Johns. Rep. 232, Platt v. Hibbard, 7 Cowen's R. 497, Blin v. Mayo, 10 Vermont Rep. 60, and Dacker v. Barnett, 5 Missouri Rep. 97, it was considered that wharfingers were not liable as common carriers, unless they superadd the character of carrier to that of

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