The opinion of the court was delivered by

This is an action on a note, the consideration for which was spirituous liquors, sold and delivered by the plaintiff to the defendant, the plaintiff at the time having no license for their sale.

It is too late in the day to claim as a general proposition, that a recovery can be had, in our courts, for the price of liquors sold *706under such circumstances. This was not claimed by the counsel for the plaintiff; and the court below proceeded upon the same ground; but they told the jury in substance, if the note was given for spirituous liquors sold and delivered without license, but given at a time subsequent to the sale, and not in pursuance of any arrangement made at the time of the sale, that a note was to be given, that.under such circumstances, the note would be valid, and the jury found for the plaintiff. The enquiry is, can there be any good ground for the distinction, which is attempted to be made in this case. The general proposition that no remedy can be had for spirituous liquors, sold without a license is founded upon the ground, that they are sold in contravention of the law, and that the court will not in such a case lend its aid to the party, to recover their price.

The objection goes to the consideration of the contract, and it is difficult to see how it can make any difference, as to the consideration, whether the note was given at the time of the sale, or at a subsequent period. The consideration is still the same.

Suppose money is loaned at 12 per cent, interest, and a note given in the usual form for the money loaned, payable at a future day with interest, the party at the time, resting upon a parol agreement to pay the extra six per cent; and at a subsequent time, a note is given for the usury, could the note be any more binding, than the parol agreement ? We apprehend not. The illegality of the consideration is the same. In the case of Steers v. Lashby, 6 Term 61, the bill grew out of a stockjobbing transaction, and was given for the differences reported, by third persons; the parties being in a dispute, as to the amount of the difference; yet the court said, there could be no recovery upon the bill, even in the hands of a third person, who took it with notice of what the bill grew out of. The stock jobbing transactions, out of which the bill grew, were prohibited by statute.

In the case before us, the note was given payable on demand, and there is no attempt to sustain it, upon any new consideration. The counsel for the plaintiff, and perhaps the court below, relied upon the decisions, which have been made in this State, relative to contracts made upon the Sabbath; but we apprehend they can not apply to the case. The objection, that a recovery cannot be had upon a contract made in violation of the Lord’s day, goes simply to *707the time of making it, and does not grow out of any prohibition of the transaction in itself considered.

Consequently our courts have considered, whether sound or not, that if there was afterwards what amounted to a new promise, the objection growing out of the time in which the contract was first made, was cured.

We will not pass upon the motion in arrest, as no doubt our decision must end the case.

Judgment reversed.