Duchman v. Hagerty , 6 Watts 65 ( 1837 )

The opinion of the Court was delivered by

Huston, J.

This was a suit to recover what were strictly tavern reckonings, charged from 1817 to 1830, though in some years there was no charge, and in others only one during the year. The principal amount was charged before 1820, and after 1828. There were, in the account, charges for sums of money, and assumptions for third persons, of which the book of Jacob Duchman was no evidence. The items were partly for liquors, partly for meals of victuals, and lodging. I mean that each separate charge in the books was partly for liquor, and partly for food, lodging, or keeping the defendant’s horse.

So long ago as the 26th of August 1721, an act of assembly of this (then) province was passed; the 3d section of which enacts as follows: “No person or persons keeping a public house or inn, shall trust or give credit to any person whomsoever for liquors, or any other inn or tavern reckonings, in any sum exceeding 20 shillings, under the penalty of forfeiting and losing such debt.”

And the 5th section provides, that “ if any person or persons keeping a public house or inn, or retailing liquors as aforesaid in this province, shall trust or credit any person, for liquors retailed, or other expenses above 20 shillings as aforesaid, or shall presume to sue any such person, or shall arrest, &c., &c., all such actions and suits shall abate, and the person sued, shall, and may plead this act in bar, and the plaintiff in such suit shall become nonsuit and pay double charges.”

It is true we have not many cases on this act; such have frequently occurred in the common pleas, but the act has been considered too plain and positive to admit of a doubt. In one case, Yundt v. Roberts, 5 Serg. & Rawle 141, the tavern keeper had got a note from his customer, in which his tavern bills were blended with some other matters: this court held the note good in part, but that the debtor’s having given a note for his tavern bills, did not take the case out of this act.

In the case in 1 Brown’s Rep. Judge Rush is made to take a distinction between a poor man tippling about a tavern, and a man of property and character, who runs up a bill for tavern expenses. The act makes no such distinction. Some have supposed, that charges for food and lodging are not within the act. The words include them, and a tavern-keeper who'will give food and lodging to a neighbour, to keep him from going home, is no better than one who continues furnishing liquor. I believe it has never been supposed, that a tavern-keeper gives trust or credit for what is used at one time; for paying before you eat or drink is not known. So a lawyer, juror, or witness bound to attend court for a week, is not considered as obtaining trust or credit rurtil his week is expired, and he goes without paying.

The present case, however, is within the letter and spirit of the act. Neither the judge of the district court, or this court could give judgment for the plaintiff, without totally disregarding the act of assembly.

Judgment affirmed.