By the eleventh section of the Act approved on August 7, 1846, a creditor of one, who has paid for spirituous liquors, “ sold in violation of law,” may recover the amount received therefor, by the seller, in an action for money had and received. The plaintiff, as such a creditor,has commenced this suit to recover. from the defendants the amount of money received by them for liquors sold to William G. Webber, in violation of law.
*515The testimony proves, that the defendants, when the sales were made, were partners in business, as distillers and venders of spirituous liquors, in Portland; and that one of them, Williams, had been duly licensed in that city, to sell such liquors “ at his distillery by wholesale, or in quantities not less than twenty-eight gallons, and that delivered and carried away all at one ■time,” — “to be used for medicinal and mechanical purposes.” There is no proof that the liquors were not sold to be used for such purposes. They appear to have been sold at different times during the existence of the license, .at the distillery, and at eaeh time in quantities exceeding twenty-eight gallons, delivered and carried away at one time. It does not appear, that the sales were not all made in conformity to the license ; and if they were made' by Williams, there would be no proof of a violation of law. The sales were made as of property of the firm. The charges were made by the firm of liquors sold to the purchaser, and payments were made to the firm. It does not appear by which member of the firm the sales were made. Each might make them, one of them might lawfully do it, the other could not. If the one, who might lawfully do it, did in fact personally make the sales, he might be wholly unable to prove it. A personal confidence was by the license reposed in Williams only, which could not be transferred by him to another, and yet he might employ a clerk, an agent, or his partner, to make such sales for him. Nor was it necessary, that he should be the sole owner of the liquors sold by him, or even that he should own any part of them. He might lawfully sell such liquors, aeting as a merchandise broker for others, who might in their own names recover for their value. The facts, therefore, that the liquors were sold as the property of both defendants, and that payments were made on account thereof to them, have no tendency to prove, that the sales were not lawfully made by Williams personally, or by a clerk, agent, or partner, under his direction.
The burden of proof rests upon the plaintiff, upon the whole testimony introduced, to show that the liquors were sold in violation of law. Without it he does not exhibit a case with*516in the provisions of the statute. While this is left in uncertainty, the plaintiff’s case is not made out. The most favorable aspect for the plaintiff, presented by the testimony, is, that it is as probable that they were sold by one without license as by the other under license, In the absence of all proof, the just and legal inference is, that the sales were made by the one who might rightfully and legally make them, or by his direction, and not by one who must violate the law without any occasion for it. Plaintiff nonsuit.
Tenney, Wells and Howard, J. J., concurred. Rice and Hathaway, J. J. dissented.