Thayer v. Partridge

The opinion of the court was delivered by Powers, J. The questions in this case arise upon the report of the commissioner. I. Section 52, ch. 34, of the Gen. Sts., provides that every trustee shall be allowed to retain or deduct out of the goods, effects, and credits in his hands, all his demands founded on contract, express or implied, against the principal defendant, and shall be liable for the balance only, after all such demands between him and the principal defendant are adjusted. Section 32, ch. 94, of the Gen. Sts., reads as follows: “ All payments or compensations for liquor sold in violation of law, whether in money, [428] labor, or personal property, shall be held and considered to have been received in violation of law, without consideration, and against law, equity, and good conscience, and may, in an appropriate action, be recovered back, it being alleged in the declaration that the money, labor, or personal property so hold, was received and is held to the use of the plaintiff,” &c. The trustee Graham had paid the principal defendant money for liquors sold him in violation of law before service of the trustee process upon him, and claims the right to “ deduct ” such money from his indebtedness to the principal defendant, by virtue of the provisions of the sections above quoted. The right of action given by § 32, ch. 94, is one that did not exist at common law. The sale of liquors at common law was legal, and the money paid, for them was received upon good consideration. Where a statute confers a remedy unknown to common law, and prescribes the mode of enforcing it, that mode alone can be resorted to. 1 Salk. 45; 2 Burr. 803; Smith v. Woodman, 8 Foster (N. H.), 520. This statute provides that the money may be recovered in an appropriate action, and sets forth the substance of the declaration to be used. The right of action is given by way of penalty for the illegal sale, and is analagous to the right of a borrower to sue for usury paid, and the right to sue for money lost at play. It is a part of the machinery for enforcing the liquor law, and is essentially penal in its aim and in its nature. It is in no sense “ founded in contract,” but arises solely from the violation of law. We think the statute gives the action to the purchaser alone, to be enforced at his option, and that it can be enforced by him only in the specific mode pointed out in the statute itself. Barber v. Estey, 19 Vt. 131; Nichols v. Bellows, 22 Vt. 581. II. The trustees Wilder and Kidder held thirty dollars in money received by them for Partridge from the sale of liquor by them as the agent of Partridge, and forty-one dollars, being the proceeds of liquors belonging to Partridge and by them converted to their own use after the service of the trustee process. It is said that the liquors sold by the trustees were sold contrary to law. The purchasers might raise this question, but Wilder and Kidder cannot. As is said in Baldwin Bros. v. Potter, 46 Vt. [429] 402, the agent cannot say, because his principal did not receive the money on a legal contract, that he is at liberty to steal it and set his principal at defiance. As Partridge has a valid claim for this money, we see no reason why his creditors may not reach it. See Tracy v. Aiken, 46 Vt. 55. The plaintiff acquired the right to hold the trustees for the liquor on hand as the specified property of Partridge — they saw fit to convert it to their own use — we see no reason why they should not account for the proceeds. Smith, admr. v. Wiley & Tr. 41 Vt. 19. Judgment affirmed.