SILAS GORSUTH & JOHN J WILSON, Plaintiffs in Error, vs. ELIJAH BUTTERFIELD, Defendant in Error, 2 Wis. 237

By the Court, Smith, J. The statute of 1850, is absolutely fatal to the right of recoyery by the plaintiff below, and it is unnecessary to enter upon the discussion of the other points made in the case. Chap. 136, sec. 5, Session Laws, 1850, p. 110. In the case of Johnson et al. vs. Meeker et al., Wis.

Rep. 436, we had occasion to give a construction to sec. 5, of chap. 29 of the Revised Statutes, which provides as follows: “ No suit for liquor bills shall be entertained by any courts of this State; and whenever it shall be made to appear to any court, before which a suit may be .pending on a promissory note, . that such note was given in whole or in part for liquor bills, such court shall immediately dismiss such suit, at the cost of the plaintiff.” On consideration of this statute, we held that the sale of spirituous or intoxicating liquors was not thereby rendered unlawful, but e®'ec^s was) 1° dose the courts of the State against the prosecution of suits founded, upon the sale suc-^ liquor j that the statute affected the remedy merely, and a repeal of the statute restored the remedy.

Johnson et al. vs. Meeker et al., 1 Wis. R. 536. But the Statute of 1850, which repeals chap. 29 of the Revised Statutes, goes much further than the one which it repealed.

Sec. 5, chap. 139, of Session Laws of 1850, provides that'“No suit for retail liquor bills shall be entertained by any courts of this State, and whenever it shall be made to appear to any court before whom a suit may be pending on a promissory note, account, or evidences of debt, that such note, account, or evidences of debt, was given for retail liquor bills, or any part thereof, such court shall immediately dismiss such suit at the cost of the plaintiff, and all suck notes, accounts, or evidences of debt, shall be absolutely void.” This statute declares the notes, accounts, &c., for retail liquor bills, absolutely void, while the Statute of 1849 only prohibited the courts from entertaining suits brought upon them.

The repeal of the statute would restore the remedy, and the notes, not having been void, could then be sued. But this note was given while the laws of 1850 was in full force, and was therefore absolutely void. It affected, not the remedy merely, but the cause of action itself The repeal of the Statute of 1850, by the act of March 8, 1851, (Session Laws of 1851, chap. 162,) while it restored the remedy upon promissory notes given for liquor bills prior to 1850, could not give vitality to an instrument absolutely void at the time of its execution.

The evidence here, clearly shows that that the consideration of the note on which this-suit was brought, was for retail liquor hills. It is difficult to conceive of a wholesale of spirituous liquors, - in six or ten Ion Regs, consisting of "brandy, gin, wine, &c., and all amounting only to the sum of sixty-two dollars. The definition given in the latter part of the

section of the act of 1850, of the words “ vending and retailing,” as used in that statute, cannot he considered as a rule hy which we are to determine whether a sale is hy wholesale or hy retail, hut has reference solely to the acts mentioned in that statute,.and described hy those terms, aud we are left without any guide furnished hy the statute, hy which to determine whether a transaction he wholesale or retail. ' If the purchase which made up the amount for which the note was given, was all one transaction, then it is' not sufficient to come up to the proper idea of wholesale.

This term implies the- selling in unbroken pieces or parcels, as hy the barrel, pipe, cask, &c., or in a number of such pieces or parcels ; while the word retail, implies the cutting or dividing up such pieces, parcels, or casks, into small quantities, and selling to ■customers in such manner. The purchase of liquors from time to time, in six or ten gallon kegs, of various kinds, cannot, in a proper use of' language, he called a wholesale purchase ; nor can he he said to vend at wholesale, who divides his casks, barrels, or pipes, into ten gallon parcels, and sells them out in that manner.

The note in this case, must therefore he considered as given for retail liquor hills, and having been executed while the act of' 1850 .was in force, was absolutely void. Being void in its inception and execution, and so declared by positive statute, a repeal of that act of the Legislature could not give it Vitality. The judgment of the court below must be, and the same is hereby reversed with costs, and the cause is remanded for further proceedings, according to law.