The opinion of the Court Was delivered by
Paddock, J.This indictment appears to have been framed upon the 4th section ol an act passed in 1804, in addition to an act directing the mode of obtaining licenses, and regulating inns and houses of public entertainment,passed in 1798. The first, second, and third sections of the act named, direct and point out the mode in which a person may obtain license for keeping an inn, or house of public entertainment, to wit, from the county court. The 8th section of the same act “ authorizes the civil authority and select men of any town to license any person or persons to mix and sell any of the liquors aforesaid, in any quantities, on days of general muster, and other public and proper occasions, for the space of three days,” without naming or confining the sale to any house or place. — -The second section of the act of 1804, “ authorizes any judge of the county court to license any person within the county to keep a house of public entertainment, until the next session of the county court.” The indictment, after charging defendant¡with selling spiritous liquors in less quantity than one quart, alleges that, “ the said William Sommers, 2d, at the time of selling said rum, brandy, gin and wine, as aforesaid, not having a license from the county court within and for said county of Caledonia, nor from any judge of the same, nor from *158the select men and civil authority of said Barnet, to keep an inn or house of public entertainment in said Barnet, against the statute in such case made and provided,’* &c.
Ch. Davis, for the state. P. Burbank, for defendant.It is evident that the negation, in this case, is too narrow to cover the 8th section in the first act, when restricted or limited by the words “ to keep an inn or house of public entertainment.” Had those words been omitted in the indictment, the sale of the spiritous liquors complained of would have been without license from any legitimate source ; but taken as a part of the negation, it follows,that the defendant might have had a license and lawful authority to sell spirits at the time and place he did, but not, to keep an inn or house of public entertainment. For these reasons, the judgement must be arrested.
Judgement arrested.