The State versus Stephen Adams, 6 N.H. 532

Richardson, C. J. delivered the opinion of the court. Whoever attentively examines the statute on which this indictment is founded, will, at once, perceive that all which is here alleged may be true, and yet the respondent may have committed no offence. For, although he may have had no license from the selectmen of Ha-verhill, he may have sold legally, under a license from the court of Common Pleas. The first

section of the statute regulating licensed houses, enacts, that, “if any person shall, at anytime, without license in writing, from the selectmen of the town or place where such person resides, sell any wine, rum, gin, brand}', or other spirits, in any quantity less than one gallon — such person, so offending, shall forfeit and pay a sum not exceeding $50, nor less than $20, for the use of the county.” This indictment alleges enough to bring the case with-⅛ this

section of the statute. But the third

section provides, that, if the selectmen shall unreasonably neglect or refuse to license any suitable person, or in case there be no selectmen in the town or place, the court of Common Pleas may license such person to exercise the business of a taverner. Now the question, in this case, is, whether a license from the Common Pleas ought to be negatived in the indictment, or whether, if the respondent had such license, it was not matter of defence, to be introduced by him ? The rule is, where the exception is in the enacting clause of the statute, it must be negatived in the indictment.

But where it is in a subsequent clause of the statute, it is mere matter of delence. 1 D. & E. 145; 2 Gallison, 497; Hawkins P. C. book 2, Ch. 25, Sec. 113; 1 East, 643; 1 Burrows, 153; 4 Johns. 304; 6 B. & C. 430; Vavasour v. Ormrod; 7 D. & E. 27, Gill v. Scrivens; 2 Pick. 139, Commonwealth v. Maxwell; 1 B. & A. 94, Steet v. Smith; and Ibid, 362, The King v. Matters; 1 Chitty, C. L. 283. It is, then, very obvious that the objection in this case, that the indictment does not allege that the respondent had no license from the court of Common Pleas, must be overruled.

The exception is in a clause of the statute distinct from the enacting clause. And it is very apparent that, if the respondent sold rum, as alleged in the indictment, without a license from the court of Common Pleas, he is guilty of the offence laid in the indictment, whether there were, or were not, any selectmen in Haverhill. An allegation that there were selectmen would have been therefore wholly superfluous. Judgment for the stale.