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SAch a license is deemed to be indispensable for retailing lignors; and it is a personal trust, and cannot be assigned so as to enable one man to keep a tavern under a license to another. It has, however, been held,' that a person may act as a tavern keeper, and retail liquors without license, when he acts ex necessitate; as when the tavern licenses of the town are expired, and the commissioners of excise are prevented from meeting to renew them.
In the case of letting to hire, the bailee must exercise a care, diligence and skill, adequate to the business he assumes and if he fails in the ordinary care and skill which belong to his undertaking, and the bailor sustains damage he must answer for that damage. If, however, the delivery was of a nature to transfer the property, a different result would follow. In the case of a delivery to a goldsmith of a bar of silver to be made into vases, or an ingot of gold to be made into rings, by the civil law the whole property passed to the smith, and the employer was merely entitled as a creditor to have metal equally valuable returned in a certain shape. If the metal in that case should be lost, even by irresistible force, the smith, as the owner of it, would be held to bear the loss, and the creditor to be entitled to his vase or ring; though it would be otherwise, if the same metal was to be returned in its new form.d
In the case of Seymour v. Brown, a quantity of wheat was sent to a miller to be exchanged for flour, at the rate of a barrel of flour for every five bushels of wheat. The miller mixed the wheat with the mass of wheat of the same quantity belonging to himself and others, and before the flour was delivered, the mill, with all its contents, was de
a Alger v. Weston, 14 Johns. Rep. 231.
b Palmer v. Doney, 2 Johns. Cas. 346. e Dig. 19. 2 31.
d Jones on Bailment, 78, 79.
e 19 Johns. Rep. 44.
stroyed by fire. It was held, upon the question who was to bear the loss, that as there was no fault or negligence imputable to the miller, he was not responsible for the loss, and that the property was not transferred. It was considered, that there was no sale within the intention of the parties. If the same identical wheat was to have been returned in the shape of flour, the decision was correct, according to the general principles of law applicable to the case. But as it did not appear to have been understood, that the wheat delivered was to be kept separate, and returned in flour, but only flour equal to wheat of such quantity and quality, and as the miller himself acted upon that understanding, the decision was not conformable to the true and settled doctrine. There was in that case a transfer of the property in the wheat to the miller, and he was bound, at his own risk, and at all events, to have returned the flour.
3. The locatio operis mercium vehendarum, is a contract relating to the carriage of goods for hire; and this is by far the most important, extensive and useful of all the va rious contracts that belong to the head of bailment. The carrier for hire, in a particular case only, is answerable for ordinary neglect; but if he be a common carrier, he is answerable for all accidents and theits, and even for a loss by robbery. He is answerable for all losses that do not fall within the excepted cases of the act of God, or publie enemies; and this has been the settled law of England for ages; and the rule is founded on the same broad principles of policy and convenience which govern the case of innkeepers."
Common carriers are those persons who undertake to carry goods generally, and for all people indifferently, for
a Co. Litt. 89. a. 1 Rol. Abr. 2. c. pl. 5. Woodleife v. Curtis. Lord Holt in Coggs v. Bernard, 2 Lord Raym. 918. Lee, Ch. J. in Dale v. Hall, 1 Wils. 281. Proprietors of the Trent Navigation v. Wood, 3 Esp Rep. 127.
hire, and with or without a special agreement as to price. In this class of persons are included the owners of stage wagons and coaches, who carry goods, as well as passengers, for hire, wagoners, teamsters, cartmen, the masters and owners of ships, vessels, and all watercraft, belonging to internal, as well as coasting and foreign navigation, lightermen, ferrymen, and wharfingers. They 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.b
In Morse v. Slue,c 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, that the action lay equally against masters and owners of vessels. The doctrine in those cases has been recognised ever since,e e and it applies equally to the carrier of goods in the coasting trade from port to port, and to a bargeman and hoyman upon a navigable river,s and to wharfingers.h
a Gisbourn v. Hurst, 1 Salk. 249. Lawrence, J. in Harris v. Packwood, 3 aunton, 264.
b Jackson v. Rogers, 2 Show. 332. Elsee v. Gatwood, 5 Term Rep. 143. c 1 Vent. 190. 238. 2 Lev. 69.
d Cases temp. Hardw. 183.
Lord Kenyon, and Ashhurst, J. in
e See Goff v. Clinkard, cited in 1 Wils 282.
ƒ Dale v. Hall, 1 Wils. 281. Proprietors of the Trent Navigation v. Wood, 3 Esp. 127.
g Kich v. Kneeland, Cro. Jac. 338. Wardell v. Mourillyan, 2 Esp. N. P. Cas. 693.
They are all liable in their respective characters as com mon carriers, and to the whole extent of inland carriers, except so far as they may be exempted by the exceptions in the contracts of the charter party and bill of lading, or by statute. There is no distinction between a land and a water carrier; and so it was declared by Lord Mansfield, and the other judges of the K. B., in the case of The Proprietors of the Trent Navigation v. Wood; and the carrier is equally liable for the acts of his servants or agents as for his own."
The proprietors of a stage coach do not warrant the safety of passengers in the character of common carriers, and they are not responsible for mere accidents to the persons of the passengers, but only for the want of due care. b It was held, also, by Lord Holt, that they were not answerable as carriers for the baggage of the passengers, unless a distinct price was paid for the baggage, and that it was not usual to charge for baggage unless it exceeded a certain amount in weight or quantity. Whenever the owner of the coach becomes answerable as a carrier for the safety of the baggage, he is not discharged in consequence of any particular care over his baggage which the passenger may have voluntarily assumed.d The responsibility of the proprietors of post coaches is now usually so limited by means of special notice, as probably to render this point quite unimportant.
The books abound with strong cases of recovery against common carriers, without any fault on their part; and we cannot but admire the steady and firm support which the
a Cavenagh v. Such, 1 Price's Exch. Rep. 328. a Aston v. Heaven, 2 Esp. N. P. 535.
Christie v. Griggs, 2 Campb.
c Middleton v. Fowler, 1 Salk. 282. Upshare v. Aidee, Comyn's
d Chambre, J. in Robinson v. Dunmore, 2 Bos. & Pull. 416.
e Clarke v. Grey, 6 East, 564.
English courts of justice have uniformly and inflexibly given to the salutary rules of law on this subject, without, bending to popular sympathies, or yielding to the hardships of a particular case. In Morse v. Slue, armed persons had entered on board the vessel in the night time in the river Thames, under pretence of impressing seamen, and plundered the vessel; and in Forward v. Pittard, the common carrier lost a parcel of hops by a fire, which in the night originated within one hundred yards of the place where he had deposited the hops, and, raging with irresistible violence, it reached and destroyed them. The loss in both those cases was by inevitable misfortune, without the least shadow of neglect or fault imputable to the carrier; and yet Sir Matthew Hale in the one case, and Lord Mansfield in the other, delivered the unanimous opinion of the K. B. in favour of a great principle of public policy, which has proved to be of eminent value to the morals and commerce of the nation in succeeding generations. The rule was to prevent the necessity of going into circumstances impossible to be unravelled; and the law presumed against the public carrier, unless he could show it was done by public eneuries, or such acts as could not happen by the intervention of man, as lightning and tempests. If it were not for such a rule, the carrier might contrive, by means not to be detected, to be robbed of his goods in order to share the spoil. Sheriffs and gaolers, in respect to debtors in custody, have been placed under the same responsibility
a 1 Term Rep. 27.
b Jones on Bailment, 79–85. Lord Holt, in Coggs v. Barnard, 2 Lord Raym. 909. Barclay v. Hygena, cited in 1 Term Rep. 33. Trent Navigation v. Wood, 3 Esp. N. P. Rep. 127. Hyde v. Trent and Mersey Company, 5 Term Rep. 389.
c Elliott v. Duke of Norfolk, 4 Term Rep. 739. Alsept v Eyles, 2 FT. Blacks. 108. The Cade Napoleon, and the Civil Code of Louisiana, have