The sale of coal, and the weighing of coal for another at a fixed price per load, are both legal transactions at common law. One entitles the seller to recover the value or agreed price of the article sold, while the other entitles him who renders the sent ice to the compensation stipulated for. The St. of 1870, c. 205, makes it unlawful to sell coal except by the cargo, which has not been weighed by a duly appointed and sworn weigher. The sales by the plaintiff to the defendant were therefore unlawful, if the plaintiff’s son who weighed the *99coal was not a sworn weigher; and the service of weighing coal for the defendant was unlawfully rendered, if not rendered by a sworn weigher.
But, as the transactions on which the plaintiff’s action is founded were lawful at common law, he made a prima facie case without proving that the weighing was done in accordance with the requirements of the statute. In order to establish a defence on the ground that the transactions were illegal, it was incumbent on the defendant to prove the illegality. Timson v. Moulton, 3 Cush. 269. Wilson v. Melvin, 13 Gray, 73. Trott v. Irish, 1 Allen, 481. Brigham v. Potter, 14 Gray, 522. Pratt v. Langdon, 97 Mass. 97. Jones v. McLeod, 103 Mass. 58.
The evidence introduced at the trial may not have been sufficient or competent to establish the proposition that the son of the plaintiff was a duly appointed weigher, but it had no tendency to show that he was not such weigher. Every fact testified to was consistent with an appointment by the selectmen.
The result is, that the plaintiff is entitled to recover for the coal sold, and for the services in weighing the defendant’s coal. The verdict must be set aside, and judgment entered for the plaintiff for $31.25, and interest after the date of the writ, as provided in the report.
Judgment for the plaintiff.