I. It is objected to the first count in the indictment, that it is bad for duplicity. The argument of the counsel for the defendant assumes that it charges two distinct offences, arising under different sections, viz., §§ 1 and 2 of c. 47 of the Rev. Sts. The answer to this objection is, that no offence is charged upon the first section. That offence is that of being a common seller of brandy, rum, &c.; and a proper indictment upon this section, for the offence of selling spiritous liquors, should contain the allegation that the party was such common seller. It is not indeed absolutely necessary to use the word “ common,” as prefixed, to seller, if other equivalent words are introduced, as was held in Commonwealth v. Leonard, 8 Met. 529, where the allegation in the indictment, that the defendant, from a certain day stated *571on divers days and times, to the time of finding the indictment was a seller of spiritous liquors, &c., was held sufficiently to set forth the offence under the first section. But it seems to us that a mere allegation, that the defendant, on a certain day named, was a seller, &c., is not sufficient to charge the offence of being a common seller. There is, therefore, no offence charged in this indictment, upon the first section of the statute.
The next inquiry is, whether there are introduced into this count all the allegations necessary to charge a single offence under the second section ; and this seems clearly sufficiently charged, and with all the particular allegations essential to such a charge. All the residue of the indictment, appertaining to an offence under the first section, but not technically charging such offence, may be stricken out as surplusage, leaving the single offence, charged upon the second section, as the whole charge in this count.
2. It is then contended, that this indictment is defective in not charging the sale of the liquor to have been made in the dwelling-house of the defendant. The answer to this objection is, that it is not required to be so charged; as the statute offence is that of selling to be used in the house of the defendant, which may take place without the sale being made within the house.
3. It is next insisted, that the indictment is bad, because it does not allege that the liquor was used in the house of the defendant; but, on the contrary, that it alleges the use of the same to have been in the house of Thomas L. Clark, the purchaser. By a strict grammatical construction, the allegation “ did then and there sell, to one Thomas L. Clark, one half gill of spiritous liquor, to be used in and about his house then and there situate, without being first duly licensed,” &c., would authorize the words “ his house ” to be taken to refer to the house of Clark, the vendee. But we do not feel bound to this very strict grammatical reading of this clause in the indictment. We may resort to the entire language of the whole paragraph ; and if the charge be plainly *572indicated, and so set forth as to leave no real uncertainty as to the nature of it, it may he held good. See 21 Pick. 521. Looking at the whole count, we think it sufficiently alleges the use of the liquor in the house of the defendant.
4. The remaining inquiry is, whether there be any proper allegation that the defendant was not duly licensed as an innholder or common victualler. So far as there is any question of uncertainty as to the person alleged not to be licensed, the views already presented on the preceding point apply, and fully meet tbi» objection. The other specification of objections under this head, viz. that the form of the allegation should have been, that the defendant was licensed as an innholder, but with the right of vending only ale, beer, &c., as was suggested in Commonwealth v. Thayer, 5 Met. 247, is answered by the decision in Commonwealth v. Thayer, 8 Met. 523, where other equivalent words were held to be sufficient, and an allegation very similar to the present was decided to be good.
All the objections, upon which the motion in arrest of judgment has been argued, are overruled.