Browne v. Hilton

40 Mass. 319

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1839
• Status: Published

Opinion

Shaw C. J.

afterward drew, up the opinion of the Court. Supposing the sale to be illegal and void, under the statute then in force, Revised Stat. c. 47, § 3, in the same manner as if the statute had declared sales prohibited by it, to be invalid and void, still the question in this case is, whether it was a sale prohibited by the statute or not; and the Court are of opinion that it was not. The statute was not designed to prohibit the wholesale trade in wine and spirits ; the purpose was, to provide that it should not be retailed for use, except by those who should be approved as fit persons to be intrusted with that power. The sales of the articles of brandy, gin, rum and wine are equally prohibited, and no distinction is made. There shall be no one sale of them of less than twenty-eight gallons, to be completed by one delivery, and carried away at one time, to prevent collusion. But if it is purchased at one time, by one contract, it is as much one sale, when composed of several different kinds of spirits, as if an equal quantity of one species of liquor had been taken. It is equally in its character a wholesale dealing with a customer, who buys to sell again. The statute itself decides what a retail dealing is, by fixing it at less than twenty-eight gallons. Commonwealth v. Eaton, 9 Pick. 165. If the quantity of spirits and wine, all purchased by one order or contract and carried away at one time exceed twenty-eight gallons, it is not prohibited by the statute. Owens v. Porter, 4 Carr. & Payne, 367. And upon a similar principle it is held, under the statute of frauds, that a sale of several articles, at one time, each of a price less then £ 10, but in the aggregate exceeding that sum, is a sale for over £ 10, and so void, if not proved by a note in writing.

Defendant defaulted.