#### The State *v.*William Hix.

•A retailer of spirituous liquors is not an ordinary keeper within the act of 1801 *(Rev, c.*581) to prevent excessive gaming, and is not indictable under that act for permitting unlawful games to be played at his house.

The defendant was indicted under the act of 1801, *(Rev. c.*581) to prevent excessive gaming, in the following words : *u*The jurors, &c. that *William Hix,*on *u*&c. being a keeper of a house-of entertainment, unlawfully did permit and suffer certain persons to play in said house an unlawful game, &c. against the form “ of the statute, &c.” On the fall circuit of 1830, at Montgomery, before MaetiN, Judge, the jury returned the following special verdict: “ that certain persons did play at cards for money at the store-house of *William, Hix;*and they further find, that the said *Hix*was a retailer of spirituous liquors, under a licence granted by the County Court; and they further find, that the said *Mix*furnished spirits to the said persons, while playing at cards j and they further find, that the said *Hix*did not furnish any other accommodation to travellers or others, except spirits.” At the following term, judgment was rendered by DaNíee, Judge, for the State, and the defendant appealed.

No counsel appeared for the defendant.

The *Attorney-General,*-for the State.

'Hah, Judge.

The acts of Assembly make a differ•.ence between ordinary or1 tavern keepers, and retailers of spirituous liquors. The first are obliged by the act •of 1798 *(Rev. c.*501,) to enter into bond with surety -to.provide in his ordinary good and wholesome diet, and lodging for travellers, and fodder, and corn for horses. The 7th section of the same act (not published in the last revisal) declares -that every person, who intends to *-retail spirituous liquors,*without *applying*to the court for *>a licence to keep an ordinary house of*entertainment, agreeably to the directions of this act, shall at the time of giving in Ms list of taxable property, signify the same *117to the justice of the peace, whose duty it shall be to report the same to the clerk. *(Iredell’s or Martin’s Re-*visal-) It is obvious from this provision of the act, that the legislature considered that there was a difference between ordinary or tavern keepers, and retailers of spirituous liquors. By the act of 1816 *{Rev. c.*906) the “County Court, when seven justices shall be on the bench, are authorized to licence persons of good conduct and moral character to retail spirituous liquors by the small measure. No bond is required of them, as is required from ordinary or tavern keepers. By the act of 1801 *(Rev. c.*581) it is declared, that if any tavern keeper or keeper of a house of entertainment, shall suffer any games to be played in his or her dwelling house, wherein he or she lives, or shall furnish such persons with drink he shall be fined, &c. This act, in terms, extends to favern keepers, or keepers of houses of entertainment, but does not extend to retailers of spirituous liquors. The law has made a difference between them ; and as the latter act is a penal one, and only extends to one of them, altho’ the other comes within the meaning and mischief of it, we cannot by construction extend it, so as to remedy the mischief, and include the other.

Per Curiam. — Judumewt reversed.