The payments, having been made generally on the account, must be first applied to the items of legal sales. This application of the payments satisfied all the charges in the account claimed to be legal except the item of $52. Caldwell v. Wentworth, 14 N.H. 436; Kidder v. Norris,18 N.H. 532; Hall v. Clement, 41 N.H. 166; Richards v. Columbia, 55 N.H. 96.
The item of $52 was a charge for ten gallons of Irish whiskey. By the laws of Massachusetts, in force at the time the sale was made, the sale of spirituous liquor was prohibited, except that liquors of foreign production, imported under the laws of the United States, might be sold by the importer in the original package in which they were imported. Mass. Laws of 1869, c. 415, ss. 27, 30. The exception from total prohibition gave no right to sell imported spirituous liquors except in the original package, nor did it authorize any owner to sell them after they left the hands of the importer. It did not extend beyond the limits placed by the federal constitution on the power of a state to restrict foreign and inter-state commerce by legislation. Brown v. Maryland, 12 Wh. 419; License Cases, 5 How. 504; State v. Robinson, 49 Me. 285.
There was no evidence that the ten gallons were sold in the original package in which they were imported, nor that they were sold to the defendant by the importer. It was an unlawful sale, and the payments made by the defendant having satisfied the legal charges of the account, the plaintiff can recover nothing.
Judgment on the verdict.
BINGHAM, J., did not sit: the others concurred.