*344The opinion of the court was delivered by
Dunton, J.The statute under which this suit was brought, s. 32, c. 94, of the Gen. Sts., provides that all payments for liquor sold contrary to law, shall be held and considered to have been received in violation of law, and may, in an appropriate action, be recovered back. Although the liquors in question were illegally sold, there is nothing in the case to show how much, if anything, was paid, for them. It would hardly do to assume that the plaintiff paid, or agreed to pay, their value. The section of the act under which this suit was brought, is in the nature of a penal statute; and it is questionable, to say the least, whether it should receive such a liberal construction as would have to be given to it, to entitle the plaintiff to recover the value of the liquors as found by the jury, even had the entire indebtedness of the plaintiff to the defendant for the stock of goods been paid prior to the defendant’s taking possession of the same to enforce his lien. The amount recoverable in cases of this kind is the sum paid for the liquor, irrespective of its value.
Assuming that the notes were given as required by the contract, whatever payments were made by the plaintiff were payments upon the notes, the same having been given for all the goods, including the liquors in question, and no specific price having been fixed upon the different articles or classes of articles included in the sale. As a part of the consideration of these notes was illegal, the notes themselves were illegal and void. Woodruff v. Hinman, 11 Vt. 592; Hinesburgh v. Sumner, 9 Vt. 23; Dixon v. Olmstead, 9 Vt. 310; Bowen v. Buck, 28 Vt. 308. Whatever payments were made by the plaintiff upon the notes, cannot be said to be payments for the liquors any more than towards the rest of the goods. Had the entire consideration of the notes been intoxicating liquors, then the case would stand differently. If the consideration for which these notes were given could be separated, the legal from the illegal, and payment for the goods other than the liquors enforced, then, as there was no direction by the plaintiff, nor agreement between him and the defendant, as to the application of the payments, it is a well-settled rule of law that they should be applied to that part of the demand which consti*345tutes a legal debt. Buckman v. Wright, 27 Vt. 187; Bancroft v. Dumas, 21 Vt. 456; Wood v. Barney, 2 Vt. 369. This would leave the liquors not paid for up to the time of the sale to Randall.
At the time of such sale, the defendant had taken possession of the goods by virtue of the lien reserved in the contract of sale, the plaintiff having failed to make the payments as required by such contract. The goods were the defendant’s, and subject to his disposal. By his consent they were sold to Randall, which was really a sale from the defendant to Randall, the defendant receiving enough from the proceeds of such sale to pay him the balance due him upon said notes, and allowing the plaintiff to take the remainder. This, at law, he was not obliged to do. On failure to pay the notes, by the terms of the contract the plaintiff’s interest in the goods ceased. Buckmaster v. Smith, 22 Vt. 203; Burnell v. Marvin, 44 Vt. 277. The defendant, therefore, simply retained out of the proceeds of the sale of his own goods, enough to pay the balance due him from the plaintiff upon said notes.
Judgment affirmed.