Towle v. Blake , 38 Me. 528 ( 1854 )

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.