JNO. JOHNSON & JNO. E. DIXON, Plaintiffs in Error, vs. JAS. C. MEEKER & JNO. HUBERT, Defendants in Error, 1 Wis. 436

By the Cowi% Whitotst, C. J. "We' do not think that either of the special pleas, constitutes a good defence to this action. The firsb one is clearly bad, as it only avers that the notes in suit, were given by the defendants to Stevens & Older, for spirituous liquors, without alleging that they are interested in the notes, or any fact to show that the sale of the liquor was unlawful. The second one we think equally bad, for omitting to allege any fact to show that the sale of the liquor was unlawful, although it contains the averment that Stevens & Older are beneficially interested in the notes.

Admitting that the plaintiffs are not entitled to the protection which the law gives to the Iona fide holders of commercial paper to whom it is endorsed before due, in the usual course of business, there is nothing contained in this plea to constitute a defence to an action brought on the notes by Stevens & Older, the payees. ■ For aught that is alleged in the plea, they had a perfect right to sell the liquor for which the notes were given.

The statute in force at the time when the notes were made, allowed any person to sell spir-itous liquor who had obtained a license to sell it, and had given the bond prescribed by the statute. The third special plea, alleges that the notes were given to Stevens & Older for the price of spirituous liquor ; that they had no license to sell the liquor, that they had not given the bond prescribed by the statute, and that the liquor was sold contrary to the statutes of the State.

This plea would have been good, if it had contained the averment made in the second special plea, that S. and O. were beneficially interested in the notes ; but as it contains no such averment, we do not see how it can be sustained. It alleges facts which show that the sale of the liquor was unlawful, and if the contest was between S. and O. and the defendants, or if the plaintiffs could not be considered as endor-sees, receiving the notes before due in the usual course of business, there would not be any doubt that the plea was a good defence to the action. But this is nck the case.

The plaintiffs are to he viewed in the light of innocent holders of the notes for a valuable consideration, to whom they were endorsed before due in the usual course of business, and when this is the case, mere illegality in the consideration of a note will not defeat an action upon it. (Story on Promissory Notes, See. 192, and the authorities there cited?) But it is contended by the plaintiff in error, that by the statute in force at the time the notes were given, the defendants became entitled to have the suits dismissed. (Rev. Stat. (Tharp. 29, Sec. 5.) By that

section it is provided that “ 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.” This provision was not in force when the suit was brought, having been repealed by the legislature. (Sess. Laws 1850, 111.) We do not think that the

section of the Revised Statutes above recited, can have the effect contended for by the plaintiff in error. It will be seen that it did not make the notes void, nor the sale of the liquor for which they were given unlawful, but merely provided that suits brought upon them, should be dismissed. It affected the remedy upon the contract only by refusing the aid of the courts in the recovery of the sums due upon the notes.

And we believe the rule of universal application is, that when the remedy upon a contract has been suspended by a statute, the repeal of the statute, restores the remedy in all cases, except where rights have become vested by virtue of the statute while it was in force. And this cannot be said to be the case in the instance before us.

It is true, that in this case, the repealing act, saves “any prosecution already commenced, or right accrued” under the law repealed, but we do not think, that the right of the defendants to have the suit dismissed, while the statute was in force, is such a right as the repealing act saves. Upon the whole we can see no error in the ruling of the court below, and consequently the judgment must be affirmed.