delivered the opinion of the Court.
Upon an indictment, containing eight distinct charges for retailing spirituous liquor by the small, a judgment was rendered against Stovall for one hundred and sixty dollars. The retailing was at an election precinct but not , in any booth, arbor, stall, public square, market house or upon any race field, places designated in the act of 1820, (Stat. Law, 1502,) and did not therefore, as we think, constitute an offence under that act.
The penalty under the act of 1793, (Stat. Law, 1499,) for retailing by the small in any house, arbor, &c. or in any other place whatever, is ten dollars, and we think the case made out by the proof against the appellant was punishable under that act instead of the act of 1820. The construction which we have thus given to the latter act we do not regard as conflicting with the opinion of this Court in Robinson vs Commonwealth, (6 Dana, 287.) In the disposition of that case it was not necessary to decide, nor do we consider the Court as deciding, that the facts proved in this case constitute an offence punishable *360under the act of 1820. The opinion says that the act of 1820 increased to twenty dollars the penalty for retailing spirits out of doors, and so it does in a variety of specified cases, but not embracing the case under consideration.
Allen for plaintiff; Cates, Atto. Gen. for Com’th.The judgment is, therefore, reversed and the cause remanded that a new trial may be granted, and further proceedings had, consistent with this opinion.