
    Towle versus Blake.
    It is provided by \ 10, c. 205, of the Acts of 1846, that no action can be maintained upon any claim, whether it be by note or account, in whole or in part for spirituous or mixed liquors, sold in violation of that Act.
    In a suit upon an account, some of the items of which are for spirituous liquors sold in violation of that Act, the plaintiff may, at the trial of the action, amend his bill of particulars, by striking out the items for liquor, and recover on the account as thus amended.
    On Report from Nisi Prius, Hathaway, J., presiding.
    Assumpsit, to recover a general balance of account.
    A bill of particulars was filed, commencing December, 1848, and ending in September, 1849. Among the items were several charges for spirituous liquor.
    
      All account in set-off was duly filed.
    The accounts on both sides were admitted to be correct, and that a part of the spirituous liquor was of home manufacture, and that plaintiffs were not licensed to sell such articles.
    When the cause came on for trial, plaintiff asked leave to amend his bill of particulars by striking out the items for liquors, which was objected to by defendant.
    The plaintiff offered to release all claim he might have for the liquors.
    The cause was then taken from the jury by consent and submitted to the full Court, to render judgment by nonsuit or default according to law.
    
      Rowe & Bartlett, for defendant,
    objected to the amendment, as the request was too late, and cited in defence c. 205, § 10, of Acts of 1846.
    
      Hilliard & Flagg, for plaintiff,
    that the amendment should be allowed, cited Wyman v. Dorr, 3 Maine, 103; Clapp v. Balch, 3 Maine, 219; Mandeville v. Wilson, 5 Cranch, 15; Beard v. Young, 2 Overton, 54; Plummer v. Walker, 24 Maine, 14; Pullen v. Hutchinson, 25 Maine, 249; Ball v. Clapham, 5 Pick. 303, and same, 446.
    As to the construction of the statute, relied upon in defence, they cited 4 Mass. 471; 15 Mass. 205; 9 Pick. 412; 3 Met. 273; 1 Met. 547.
   Shepley, C. J.

— This suit was commencéd to recover fox* the value of certain goods sold, among which were spirituous liquors. A bill of particulars, including such liquors, had been filed, and the plaintiff rs counsel at the trial asked leave to amend by striking out all the items of charge for such liquors.

The question presented is, whether he may do so and then have judgment for the remaining portion of the account admitted to have been correct.

A bill of particulars is amendable.

The provision contained in the Act of August 7,1846, e. 205, § 10, that no action shall be maintained upon any claim: or demand, including an account, in whole or in part for spirituous liquors, was intended to prevent a recovery for the value of any such liquors; and when so combined with any other matters, that no separation could be legally made, that the action should not be-maintained for a recovery of any part of the claim. If the amendment be allowed, the action will not be maintained upon an account part of which is for spirituous liquors, and there will be no violation of any provision of the statute. Its design will be fully accomplished by preventing,a recovery for any such liquors.

The plaintiff may amend his bill of particulars by striking out all the items of charge for spirituous liquors, and deducting the amount of the account filed in set-off, take judgment for the balance due with interest thereon from the commencement of his suit. Defendant defaulted.

Tenney, Howard and Hathaway, J. J., concurred.  