
    Francis W. Adams vs. Daniel Goodnow & another.
    The repeal of the Gen. Sts. c. 86, § 61, by the St. of 1868, c, 141, § 26, does not prevent the purchaser of liquors, sold in violation of the former, from recovering the price in an action for money had and received, if the sale was made and the price paid before the repeal.
    Contract for money had and received, to recover from Goodnow and John S. Moulton, the price paid by the plaintiff for intoxicating liquors sold by them to him in this Commonwealth, at different times during the year 1864, in violation of law. Writ dated November 12,1866.
    Section 61 of the Gen. Sts. c. 86, provided that “ all payments or compensations for spirituous or intoxicating liquors sold in violation of law, whether in money, labor or personal property, shall be held to have been received without consideration, and against law, equity and good conscience; ” and was repealed in May 1868 by the St. of 1868, c. 141, § 26.
    On the trial, at June term 1868 of the superior court, after the plaintiff had opened his case, Wilkinson, J;, at the defendants’ request, ruled that the action could not be maintained, and ordered a verdict for the defendants. The plaintiff alleged exceptions.
    
      I D. Van Duzee, for the plaintiff.
    
      T. H. Sweetser 8f I S. Morse, for the defendants.
   Gray, J.

The purchaser of intoxicating liquors sold in violation of the eighty-sixth chapter of the General Statutes was not in paH delicto with the seller. The seller was punishable, but the purchaser was not. As to him, the transaction was not criminal, but merely void. The money or other price paid by the purchaser to.the seller was declared by the statute to “be held to have been received without consideration, and against law, equity and good conscience.” Gen. Sts. c. 86, § 61. Money so paid therefore remained the property of the purchaser, and might be recovered back as such. Jaques v. Golightly, 2 W. Bl. 1073. Browning v. Morris, Cowp. 790. Walan v. Kerby, 99 Mass. 1. The repeal of that statute by the St. of 1868, c. 141, § 26, did not make the previous sale good, or transfer the property in the plaintiff’s money to the defendant, or defeat the plaintiff’s right of action to recover back what had never ceased to be bis money. Jaques v. Withy, 1 H. Bl. 65. Holden v. Cosgrove, 12 Gray, 216. Exceptions sustained.  