
    Thomas J. Meservey & als. versus Joseph E. Gray & al.
    
    Generally the legality of contracts is to be determined by the law of the place where they are made.
    But, by virtue of § 27, c. 33, Public Laws of 1858, if a person purchase intoxicating liquors out of the State, with intention to sell any part thereof in violation of said chapter, the seller cannot recover the price of the liquors here, although he had no knowledge of the purchaser’s intention.
    On Report.
    Assumpsit on an account annexed, which was as follows : 1864, Dec. 2, J. E. & E. Gray to T. J. Meservey & Co., Dr.
    To balance of acc’t, $224,00
    Int. on same to date, 6,00
    230,00
    The plaintiffs introduced the following order, signed by the defendants.
    " Skowhegan, July 14, 1864.
    " T. J. Meservey & Co. Please send us a Bbl. of Whiskey and 15 galls. Gin.”
    Also a bill as follows :—
    "Messrs. J. E. & E. Gray bought of T. J. Meservey & Co.
    1 Bbl. old Bourbon Whiskey, 41, $3, $123,00
    25 Galls. Holland Gin, £ Bbl., 4, 100,50
    Cartage, 50
    224,00”
    It appeared that the order was sent by defendants to the plaintiffs in New York; that the liquors were sent as by the bill, the defendants to pay cartage and freight; that the defendants were hotel keepers in Skowhegan, and purchased the liquors to sell to their guests; that they had no license except a IT. S. license; and that the plaintiffs had no knowledge of the plaintiffs’ intention to sell-the liquors in violation of law.
    The case was withdrawn from the jury and reported to the full Court.
    
      
      Coburn & Wyman, for the plaintiffs.
    
      J. D. Brown, for the defendants.
   Walton, J.

It is generally true that the legality of contracts is to be determined by the law of the place where they are made; ánd, if legal there, they are usually'enforced everywhere. It was upon this ground that contracts for the sale of intoxicating liquors made in other States, where such sales were legal, were enforced in the Courts of this State, although such contracts if made here, would have been held illegal. Torrey v. Corliss, 33 Maine, 333.

But this rule is not obligatory. When contracts made in other States are designed or calculated to aid in violating the laws of the State where they are attempted to be enforced, the Courts of the latter State are not obliged to furnish a remedy. • And, when it was seen that the liquor dealers of other States were abusing the principles of comity extended to them, and by sending runners into the State soliciting orders, and by every species of artifice in packing, directing and forwarding their liquors, were aiding and promoting an illegal traffic in this State, it was not only competent, but wise in our Legislature to pass a law declaring that they should receive no aid from our Courts in collecting pay for their liquors.

This was done in 1851, c. 211, § 16. And our present liquor law, (Act of 1858', c. 33, § 27,) declares that no action shall be maintained for intoxicating liquors purchased out of the State with intention to sell the same or any part thereof in violation of said Act.

In the case now before us, the plaintiffs are endeavoring to recover a balance alleged to be due them for intoxicating liquors purchased by the defendants, with the intention of selling the same in this State in violation of the provisions of said Act. Their claim, therefore, would seem to be one ■which the Courts of this State are expressly forbidden to enforce.

But the plaintiffs contend that, inasmuch as the sale was made in New York, and they had no knowledge of the purchasers’ intention to sell the liquors in this State in violation of law, their case does not fall within the provisions of the statute. But we think this proposition cannot be maintained. The cases cited in support of it being based on statutes very unlike the one now in force in this State, do not apply. It will be noticed that our present statute makes the fact that the liquors were purchased with the intention of selling them in violation of law, and not the seller’s knowledge of the fact, the criterion by which to determine whether the contract will support an action in this State or not. The purchaser’s intention, and not the seller’s knowledge, is the point of inquiry. When dealing with citizens of this State, the seller must ascertain at his peril that the purchaser does not intend to sell the liquors here in violation of law. If, therefore, the sale was made in New York, and the plaintiffs had no knowledge of the illegal purpose of the defendants to sell the liquors in this State in violation of law, yet, inasmuch as the evidence satisfies us, as matter of fact, that they were intended for such illegal sale, the plaintiffs cannot recover for them.

-On the bill introduced in evidence by the plaintiffs is a charge of fifty cents for cartage. All the rest of the account is for intoxicating liquors. We do not understand that the plaintiffs claim to recover for this item as for a separate and independent claim. If we understand their argument, it is referred to only to show that the liquors were delivered and the sale completed in New York. Besides, as there is only a single count in the plaintiffs’ writ, and that is for " balance of account,” and no bill of items is annexed, they are in no condition to claim to recover for a single item of their account. But a single promise is averred, and that is to pay the balance due on their account. In such a case, if any portion of the account is illegal, the plaintiff cannot recover. In fact, if a promissory note had been given for the balance, no part of it could be recovered. Deering v. Chapman, 22 Maine, 488. If a party has an account made up of items, some of which are legal, and some of which are illegal, and he would recover for such as are legal, he must not blend the legal with the illegal, and sue for the balance; if he does he cannot recover. In fact, if he sues upon an account annexed, some of the items of which are illegal, he cannot recover unless he amends his writ by striking out the illegal items before he goes to trial. Cochrane v. Clough, 38 Maine, 25. Plaintiffs nonsuit.

Appleton, C. J., Cutting, Dickerson, Danforth and Tapley, JJ., concurred.

J. II. Webster, for the complainants.

D. D. Stewart, for the respondents.'  