Peters v. Goulden

27 Mich. 171, 1873 Mich. LEXIS 86

• Court: Michigan Supreme Court
• Decided: April 24, 1873
• Status: Published

Opinion

Cooley, J.

This was a suit brought to recover back moneys paid as the purchase price of liquors sold in violation of the prohibitory liquor law. The circuit judge instructed the jury that the plaintiff could not recover..

The argument in this court in support of the judge’s instruction is, that the section of the statute which gives this right of action was re-enacted with alterations in 1871, after the sales in question were made, and this re-enactment, it is insisted, is to be regarded as a new law which repealed the old, and consequently no recovery could be had except under the new law, and that could apply only to sales since made.

We have no occasion to examine this argument. The prohibitory liquor law, as it was when the sales were made, declared all moneys paid for liquors sold in violation of its provisions, to be paid without consideration, and recoverable by the party paying on that ground. This being so, the plaintiff had a vested right 'of action for the money, which would not be affected by subsequent changes in the statute.

The circuit judge also expressed an opinion to the jury that if plaintiff could recover at all, he could recover only the sum paid at some one time. This opinion was also ■erroneous. Under the common counts in his declaration he could recover any number of payments, as he might in ■other cases to which those counts were applicable.

Judgment reversed, with costs, and a new trial ordered.

The other Justices concurred.