This suit appears to have been commenced to recover the value of boards sold and delivered by the intestate to the defendant.
The defence appears to be, that the intestate was guilty of a violation of the provisions of statute chap. 66, in making that sale and delivery. If such were the fact, the law would not lend itself to carry into effect a sale made in violation of its provisions.
The testimony of Alfred Lee was clearly admissible to prove, that the defendant made out the account against himself and admitted it to be due to the estate of the intestate.
The burden of proof was upon the defendant to show, that the sale was made in violation of the statute provisions, if he would for that reason avoid payment. Whitman v. Freeze, 23 Maine, 185.
The testimony of Samuel Ames was legally admissible to prove the acts of the defendant, and that a survey was made by his direction.
It does not appear from his testimony or from any testimony presented in the report, that the intestate sold the boards under an agreement, that they should be surveyed by him, or that he had any connexion with that survey.
The purchaser of lumber may be dissatisfied with a survey made by order of the seller, and may cause it to be again surveyed by another person.
There is no proof, that the lumber sold to defendant was not also surveyed by a surveyor elected by the town of *508Phipsburg. If that could be presumed, and that the intestate consented that the defendant should select the surveyor, the legal inference would be, that one was to be selected who could make a legal survey.
The real character of the transaction may perhaps be inferred from the testimony to have been, that the intestate agreed to sell the boards to the defendant and to permit him to cause them to be surveyed. The inference would then be that the intestate intended that he should have them legally surveyed. The defendant causes a survey to be made, which he alleges to have been illegal, and presents his own misconduct and violation of the provisions of the statute to prevent a recovery of the agreed price.
The testimony fails to prove, that the intestate was a party to any contract or proceeding in violation of the provisions of the statute, or that he intended to violate any of its provisions ; the law therefore interposes no legal objection to a recovery by the plaintiff.
It is not necessary to determine, whether a surveyor elected by one town can make a legal survey in another town.
Defendant defaulted.