Chase's Executors v. Burkholder.

• Decision Date: 22 September 1851
• Citation: 18 Pa. 48
• Parties: Chase's Executors <I>versus</I> Burkholder.
• Court: Pennsylvania Supreme Court

18 Pa. 48

Chase's Executors versus Burkholder.

Supreme Court of Pennsylvania.

September 22, 1851.

ERROR to the District Court of Allegheny county.

Wills, for plaintiff in error.

Knox, for defendant in error.

The opinion of the Court was delivered Sept. 22, 1851, by BELL, J.

A candid construction of the agreement of these parties submitting the point of their controversy for adjudication, leads, almost irresistibly, to the conclusion attained by the Court below, that the object was to ascertain the defendant's right to recover his claim, under the facts stated, without regard to the form of the action. After stating the proposed ground of defence, the agreement proceeds, "if the Court believe this is a defence sufficient in law to prevent a recovery of the bill for boarding, under the Acts of Assembly relative to selling liquor, then the above judgment to be set aside," &c. Here is nothing said of any merely technical defence, nor is it hinted that the question of lien upon the goods replevied, was one in debate between the parties. We can, therefore, well believe the uncontradicted assertion of the defendant's counsel, that the form of action and the question of lien raised in this Court, was not made or in any way discussed below, corroborated as he is by the remarks made by the President of the District Court, that "the question whether the keeper of a boarding-house has a lien upon the property of his boarders in his possession, for their boarding account, has not been submitted by the case stated; it might, indeed, be raised by the record, but as the parties have agreed to submit their case on the single question above stated, it would be improper to give an opinion on any other." That question is whether, as the claim, originally made by the defendant upon the plaintiff's intestate, included a demand for spirituous liquors sold by the former to the latter, the price of boarding his family during the interval when the liquor was furnished, is recoverable? The denial of the plaintiff's right is not based upon the Act of 1721, which prohibits keepers of public-houses or inns to give credit for liquor or tavern reckonings, in any sum exceeding twenty shillings, under penalty of forfeiting the same. It is true, the determination in Duchman v. Hagerty, 6 Watts 66, extends this provision to cover charges for food and lodging furnished to a transient guest, at the several times when the liquor was also credited. But the present defendant is not within the purview of the Acts, for he is not an innkeeper, and is, therefore, not of that class the statute was made to restrain. Besides, since the Act of 11th March, 1834, regulating inns and taverns, there can be little doubt a tavernkeeper may sustain action for the price of boarding and lodging enjoyed by a permanent resident, though the latter be also a debtor for liquor furnished. It was so decided by the District Court of Philadelphia, in Scattergood v. Waterman, 2 Miles 323, under the provisions of the later Act; and, as it seems to me, with entire propriety. This act, however, prohibits, under certain penalties, any person from keeping an inn or tavern without license previously obtained in the manner pointed out; and subjects to punishment by indictment all unlicensed persons who shall sell spirituous or vinous liquors by less measure than a quart at one time. It is insisted that as during the period when the debt for boarding was contracted by the defendant's intestate, the defendant was acting in direct violation of these prohibitions, by professing to keep an inn or tavern in the house where the boarding and lodging was furnished, the contract sued on springs from an illegal and prohibited condition of things, and is consequently...