#### STATE vs. WILLIAM KIRKHAM.

On an indictment for retailing spirits by the small measure without a licence, where the contract appeared to be to deliver to the purchaser from time to time spirits, in parts of a quart as he should call for them, with an engagement on his part to take, in the whole, a quart in quantity, and an engagement on the part of the seller not to exact payment until that quantity should be received, it was held by the Court, that this was a violation of the act of Assembly, prohibiting the sale of spirits by the small measure without a licence.

Where in such a case the special verdict does not find that the selling was without licence, judgment must be rendered for the defendant; for such an averment is necessary in an indictment under the Statute, and in a special verdict must be found by the Jury.

This was an indictment against the defendant for retailing spirituousÑqütírs “Lgr the small measure, to-wit, by a measure less than a quart, without first obtaining a licence therefor according to law, against the form of the statute, &c.” The case came on for trial upon the plea of not guilty, at Randolph Superior Court .of Law, before his Honor Judge Pearson, when the Jury found the following special verdict : “ We find, that about eighteen months ago, at a muster at one McMaster’s, the defendant had spirituous liquors in a small waggon for sale, and that one Emsley Fields applied to him for the purpose of purchasing some ; that defendant told him he could not sell less than a quart; that Emsley Fields agreed to purchase a quart, provided the defendant would permit him to take it in small quantities, as he might want it, until the quart was taken, to which defendant agreed; and that during the day Emsley Fields took three cups full, the cup holding half a pint. We further find, that in July last, at a muster at one Cox’s, the defendant again had spirituous liquors in his waggon, when Fields got of him the remaining half pint, and paid him for the quart twenty cents, which was the price originally agreed upon. We further find, that twenty cents was the price at which *385the defendant usually'sold[spirituous liquors^by the but that Fields would not have purchased but for the ment on the part of defendant that he might take it in small quantities, as he might want it. Whether upon these facts the defendant be guilty in manner and form as charged, the jury are ignorant, and pray the opinion of the Court. If the Court be of opinion that upon these facts the defendant is guilty, then the jury find him guilty, &c., but if the Court should be of opinion that upon these facts he is not guilty, then the jury find that he is not guilty.” The Court was of opinion that the facts did not]make a case of selling and retailing by the small measure, under the statute, and judgment was entered for the defendant, from which judgment the Solicitor for the State prayed an appeal to the Supreme Court, which was granted.

Attorney General for the State.

No Counsel for the defendant.

Gaston, J.

we upon The offence des, spirituous lips less Jiie question founded to which this indictment is founder quors by the small measure, tha than a quart without a licence,” a: be presented for our consideration up8!P^^lpecial verdict is, whether the facts found by the jury shew that the defendant did so retail. To retail, in its ordinary sense, means to sell by small quantities or in severed parts, and the doubt is, whether the sale in this case was in law a sale of spirits by the quart, or by the parcels of a quart, as they were delivered and agreed to be delivered. If the contract of the parties had been that the seller should deliver a quart of spirits,’Which particular quart should thereupon become the property of the purchaser, although theseller were by agreement to retain it for the purchaser, so as to be used from time to time as the latter might require, we suppose that such a contract (unless perhaps it were found by the jury that there was an intent thereby to evade the Statute,) must have been held to be a contract for a sale by the quart. But in this *386the contract was to deliver to the purchaser, from time -to time> spirits in parts of a quart, as he should call for them, with an engagement on his part to take in the whole a quart jn quantity, and an engagement on the part of the seller not to exact payment until that quantity should be received.' — ■ Under this contract the purchaser became the owner of each cup-full or half pint of spirits as it was delivered, and the residue still remained the property of the seller. If the purchaser, after receiving one or more of his half pints, called for the remainder, the seller’s engagement would have been satisfied by delivering what was wanted to make up the quart of other spirits of the same kind and quality. To sucha transaction, whereby the thing is transferred from one to the other by small quantities or in several parts for a price, the term retailing is properly applied, notwithstanding the stipulation on one side that the amount to be purchased shall be to the value of a larger quantity or of an unsevered whole, and'of the stipulation on the other to allow a credit until such an amount in value should be received. And if this be the legal character of the transaction, we are the more disposed so to regard it, as any other construction of the contract would defeat, in a great number of cases, the primary object which the Legislature intended to accomplish by the Statute.

But, notwithstanding our opinion upon this question, we cannot pronounce the judgment below erroneous. That judgment was rendered upon a special verdict; and a fact, which is indispensable to the constitution of the offence, wherewith the prisoner was charged, is not found. The indictment would have been fatally defective, had it omitted to aver that the defendant retailed loithout a licence; and the verdict is insufficient to warrant a conviction, in omitting to find this averment. All the circumstances constituting an offence must be found, in order to enable a Court to give judgment, and it is not in the power of the Court to supply a defect in the finding of the jury by intendment or implication.

*387This opinion must be certified to the Superior Court Randolph, with instructions to render judgment for the deiendant.

Per Curiam, Ordered accordingly.