
    Yundt against Roberts.
    
      Tuesday, May 23.
    If a note be for liquors or a tavern reckoning exceeding 20 shillings, no part of such debt is recoverable.
    But if other items of account constitute part of consideration of the note, it is good as to them, though bad as to the debt for liquors or tavern reckoning, when the later exceed 20 shillings,
    In Error.
    ERROR to the Court of Common Pleas of Lancaster county, in which a bill of exceptions to the charge of Court below was returned with the record.
    
      Isaac Roberts, the plaintiff below,
    brought this action against Allen Yundt, in debt upon five promissory notes, not ° ,. . , ,. _ , . , , , , exceeding 300 dollars. On the trial, the Court below were requested by the defendant to charge the jury, that if the note or notes, or any part of them, were given for a tavern reckoning above the sum of 20 shillings, the plaintiff could not recover. The Court charged thus: — “ An old act of ... P. , .... assembly has been relied on, which prohibits tavern-keepers from trusting or giving credit to any person for liquors, or any other inn or tavern reckonings in any sum exceeding 20-shillings. This act of assembly is still in force. It is incumbent on the defendant, before he can derive any advantage from this act of assembly, to shew clearly and satisfactorily, that these notes were given for liquors or some other inn or tavern reckoning, and so far as this tavern debt or reckoning exceeds the sum of 20 shillings, this act of assembly will avail him.” The jury gave a verdict for the plaintiff for 220 dollars 87 cents.
    
      Rogers and Hopkins, for the plaintiff in error,
    contended, that if the tavern bill exceeds 20 shillings no part of it can be recovered ; nor can any part of a note be recovered if it included a tavern reckoning for more than 20 shillings. The 3d section of the act of assembly, (26th August, 1721, 1 Sm. Laws, 126,) provides, “ that no person or persons, keeping a public house or inn, shall trusc or give credit to any person whatsoever, for liquors or any other inn or tavern reckonings, in any sum exceeding 20 shillings, under the penalty of forfeiting and losing any such debt.” By the 5th section, “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, 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 nonsuited, and pay double charges.” If part of an entire contract is void, the whole is void. In support of this principle they cited, Featherston v. Hutchinson,
      
       Com. on Cont. 26. 1 Sid. 38. 4 Leon. 3. Cro. Jac. 103. 1 Esp. N. P. 182. Crawford v. Morrell.
    
    Buchanan, contra.
    In construing the Judge’s charge, the question put is to be considered, and that was, whether a tavern bill exceeding 20 shillings vitiated the live notes. The answer was, that as far as the tavern debt exceeded 20 shillings, the act of assembly would avail the defendants; the meaning of which was, that if the tavern debt did not exceed 20 shillings, it was recoverable. But I contend, that 20 shillings of a tavern debt may be recovered, though the whole debt exceed that sum. The third section merely prohibits trusting beyond that sum, and the forfeiture imposed, is only of the surplus. It is analogous to the case of usury, in which the obligee may recover the principal and legal interest. Wycoff v. Longhead.
      
       The inconvenience would be great if the note should be void, because part of the consideration which might be separated from the rest was illegal. The proper distinction is stated in 1 Saund. 66, note 1. Where the condition of a bond is entire and the whole is against law, it is void; but where the condition consists of several different parts, and some of them are lawful and the others not, it is .good for so much as is lawful and void for the rest. But if a bond is given with condition to do a thing against an act of parliament, and also to pay a just debt, the whole bond is void, and is a strict law. Hob. 14. The case of Crawford v. Morrell, 8 Johns. 253, was an entire contract, which could not be separated.
    
      
      
        Cro. Eliz. 199.
      
    
    
      
       8 Johns. 195.
    
    
      
      
        2 Dall. 92.
      
    
   The opinion of the Court was delivered by

Duncan J.

The notes on which this action was brought are disputed on the ground of the illegality of the consideration. It was alleged, that they were given for tavern bills, and that if there were other considerations, the blending of the illegal with the legal considerations vitiates the whole. By the 3d section of the act of 26th August, 1721, it is provided, that no person keeping a public house shall give credit to any person whatsoever for liquors, or any other inn or tavern reckonings, in any sum exceeding 20 shillings, under the penalty of forfeiting and losing any such debt; and by the 5th section, any person suing for a tavern debt above 20 shillings, shall be nonsuited and pay double costs. The act provides, that it maybe pleaded in bar of the suit. The plea here is non assumpsit and payment. The notes do not extinguish the original contract; they are prima facie evidence of a debt; for in an action for money lent, promissory notes may be given in evidence. In other actions of assumpsit, cases of simple contract, the consideration must be formally and expressly stated; but in promissory notes and bills of exchange; and some other legal liabilities, the. statement of the liability which constitutes the consideration, is sufficient. A note may consist of many items; be composed of many contracts; and though they are blended in the note, they are divisible in their nature ; if part of the contract arises on a good and part on a bad consideration they are divisible; the legal contract remains, and the party has a right to maintain his action for so much of his demand as is legal. Robinson v. Bland, 2 Burr. 1077. If the contract is entire, and founded on two considerations, one of which is unlawful, that vitiates the whole, and this is the principle of the decision in Cro. Eliz. 199, and in 8 Johns. 196, Crawford v. Morrell, this is the reason assigned by the Court. This contract is entire, and if part of one entire contract be void, the whole is void. If a statute declares any security taken for a matter prohibited, shall be void, and an action is brought on a security taken for that which is unlawful, but is blended with that which is lawful, the whole security is void, because the letter of the statute makes it void and is a strict law. 2 Saund. 66. Hob. 14. But where the condition of a bond consists of several different parts, and some of them are lawful and others not, it is good for such as is lawful, and void for the rest. In case of an executory contract, where part of the executory consideration is illegal, there can be no recovery ; but where the contract and the consideration is executed, if there be a sufficient valid consideration, it will support the action, and it is sufficient to state the valid one, though there be others which are frivolous and void. 1 Chitty's Plead. 296.

It would be unreasonable to say, that where a note is given on a final settlement of accounts for a balance, if one item of the account, consisting of a tavern debt, exceeded 20 shillings, that the whole should be void. The tavern bill only is avoided, but the honest debt is not forfeited. And if the opinion excepted to went no further than this, and so laid down the law, there would be no error; but it is impossible to give it this construction. For the Court say, that so far as the tavern debt, or reckoning, exceeds the sum of 20 shillings, the act of assembly will avail the defendant. It would be a forced, construction, that the Court intended only to declare, that if the tavern debt did not exceed 20 shillings, it was recoverable. No, the plain import is, that although the tavern debt did exceed 20 shillings, the inn-keeper might recover 20 shillings, for so much of the debt is legal, and this certainly was not the intention of the legislature j for the inn-keeper who trusts above 20 shillings, forfeits the whole debt; he is to be nonsuited; he is not to receive any thing. And although the plaintiff in error could not be affected by this error beyond 20 shillings, yet the Court cannot measure the extent of the injury the party may have received from this error, and because the error only goes to a small amount of the judgment recovered, overlook it, and affirm a judgment which is in principle erroneous.

Judgment reversed, and a venire facias de novo awarded.  