A part of the consideration of the note given by the plaintiff to Fowler, Seavey & Co. was unlawful; being liquors unlawfully sold by them. The note, therefore, in their hands, is wholly void, and the plaintiff may successfully resist payment of it to them. Featherston v. Hutchinson, Cro. Eliz. 199. Waite v. Jones, 1 Scott, 735, and 1 Bing. N. C. 662. Scott v. Gillmore, 3 Taunt. 226. Gaitskill v. Greathead, 1 Dowl. & Ryl. 359. Deering v. Chapman, 22 Maine, 488. Carlton v. Bailey, 7 Foster, 230. 1 Leigh’s Nisi Prius, 41. The mere giving of such a note by the plaintiff, in discharge of a claim on the defendant, is not a payment of the claim, that will enable the plaintiff to recover of the defendant the amount of the note, in an action for money paid. If the plaintiff could recover in this action, and should refuse to pay the note, he would obtain of the defendant, for nothing, the price of all the goods, lawfully and unlawfully sold, and leave him still liable to the sellers, as far as he ever was liable, in an action for goods sold and delivered. For when a security, taken in payment of a demand, is void and is avoided, the creditor may bring an action, and recover, on the original cause of action. Johnson v. Johnson, 11 Mass. 359. Leonard v. Trustees of Society in Taunton, 2 Cush. 464.
If the note shall be collected of the plaintiff by a bona fide indorsee, or if he shall pay it, or any part of it, to the promisees, his claim on the defendant may be presented on different grounds. Exceptions overruled.