The opinion of the Court was drawn up by
Appleton, C. J.This is an action of assumpsit to recover the price of a quantity of intoxicating liquors sold the selectmen of the defendant town, who purchased them in their official capacity. The kind of liquors sold is not stated. It was conceded the liquors were not all imported, nor sold in the original importation packages.
The sale was made in Boston. By R. S. of Massachusetts, of 1860, c. 86, § 28, all sales of intoxicating liquors *255are prohibited except by persons duly authorized under the provisions of that chapter. It is said by the Supreme Court of that State, in Wilson v. Melvin, 13 Gray, 73, that "there is no legal presumption that the sale is unlawful, and there should hardly be, in favor of a defendant who has joined in the contract. As against the Commonwealth, the Legislature have required that the defendant, in a criminal prosecution, shall prove the authority under which he acts, when charged with a violation of the statutes prohibiting the unlicensed sale of intoxicating liquors ; stat. 1844, c. 102; but they have imposed no su h obligation upon parties, who seek the enforcement of contracts.” If this rule is deemed applicable to the statute of 1860, it cannot avail the plaintiffs, as the case finds that they had no license to sell. Nor can the purpose, however legitimate, for which they were purchased, confer upon them that authority to sell, which they so much need to entitle them to recover.
By the Act of 1858, c. 33, § 5, the selectmen of any town " may purchase such quantity of intoxicating liquors as may be necessary to be sold under the provisions of this Act, and shall appoint some suitable person to sell the same at some convenient place within said town or city, to be used for medicinal, mechanical and manufacturing purposes, and no other.” As the purchase was made by the selectmen in their official capacity, we must presume it strictly within the authority conferred upon them. Hence, although, by § 27 of the statute of Massachusetts, "any person may manufacture or sell cider for other purposes than that of a beverage, and unadulterated wine for sacramental purposes,” we cannot assume, in the absence of all proof, that the selectmen purchased for such limited purposes — and when such purchase would not be in accordance with the statute under which they acted. Plaintiffs nonsuit.
Rice, Cutting, Kent and Walton, JJ., concurred.