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wines, to be drunk in his house, shall put up any sign indicating that he keeps a tavern."

■ N. Y. Revised Statutes, vol. i. p. 678-682. Ibid. 661. sec. 6. By the statute, every keeper of a public inn or tavern, except in the city of NewYork, is required to keep at least two spare beds for guests, well provided, and good and sufficient stabling, grain, hay or pasturage, for horses and other cattle belonging to travellers. Every innholder or tavernkeeper, who is licensed as such, is also required to put and keep up a proper sign on or adjacent to the front of his house; and every person who erects or keeps up such a sign without a license to sell spirituous liquors by retail, or sells them by retail to be drunk in his house, outhouse, yard or garden, without entering into recognizance as an innkeeper, is subjected to a penalty for every offence. If the innkeeper has not put up a sign, yet, if he keeps a tavern, he is still responsible at common law as an innkeeper. Calye's case, 8 Co. 32. At common law any person might keep a tavern and sell vinous liquors there without control, but under the English statute of 5 and 6 Edw. VI., a license to keep a tavern would not authorize the retail of liquors without another license. Stevens v. Duckworth, Hard. Rep. 336. The better opinion would seem to be, that under the New-York statute there may lawfully be a public inn without an excise license, though without a license no person can put up a sign indicating that he keeps a tavern; and if he has the excise license to retail in small quantities liquors to be drunk in his house, he must be bound also to keep an inn for the accommodation of travellers, in the common law sense of the term. The excise license may perhaps be regarded as a criterion to determine between the common law inn, and the statute inn and tavern combined. In the case of the Overseers of Crown Point v. Warner, 3 Hill, 150, occur. ring in 1842, since the preceding observations were made, it was adjudged that the words inn and tavern, and innholder and tavernkeeper, were used in the N. Y. S. vol. i. p. 676, synonymously, and that the right to keep an inn without an excise license is common to all persons. But if a license to sell spirituous liquors be added, the inn then becomes a statute franchise, and the statute regulations prescribing rules of conduct to inn and tavernkeepers, applies only to such licensed houses. By a statute of New York of 12th April, 1843, ch. 97, licenses to keep taverns may now be granted, without including a license to sell spirituous liquors or wine. So in Alabama no person can keep a public inn without a license, though spirituous liquors be not retailed. The State v. Cloud, 6 Ala. R. N. S. 628. The act of Michigan of 1833, is essentially the same, for no person unless licensed to keep a tavern, can sell spirituous liquors, by retail under a quart. In Pennsylvania a license to keep a tavern or inn would seem ipso facto to imply a license to retail vinous and spirituous liquors, though licenses to sell liquors may be granted to persons combining other business with the Purdon's Dig. 502-507. By the law of Ohio, no person is per

same.

(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 taIn 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 Massachusetts 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,)

vern.

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 refusal, if he has room in his house, and the guest behaves properly. Rex v. Ivers, 7 Carr. & Payne, 213. In the case of the State v. Chamblyss, 1 Cheve's 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 other. It would appear from the learned investigations in that case, that a tavern 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 synonymous 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 lewd and idle people, &c." The statutes of 2 J. I. c. 7.-4 J. I. c. 5.—and 1 C. I. c. 4, show also the primitive use of the inn, now commonly called a tavern. That in the statutes of South Carolina, both under the colony and under the state, inns and taverns have been used promiscuously for places where spirituous liquors 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.a 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.

In Scot

Brind v. Dale, 8 Carr. &
Watts & Serg. 285, the

■ Robinson v. Dunmore, 2 Bos. & Pull. 416. Payne, 207. But in Gordon v. Hutchinson, 1 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 transportation was only an occasional and incidental employment, and this decision seems to be founded in better policy as applicable to business in this country.

b 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.

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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, and 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.

Gisbourn v. Hurst, 1 Salk. Rep. 249. Brind v. Dale, 8 Carr. & 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,

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