¶1By the St. of 1875, e. 99, § 1, it is enacted that “ no person shall sell, or expose or keep for sale, spirituous or intoxicating liquors, except as authorized in this act.” By § 4 provision is made for the granting of licenses, which by § 6 must be expressed to- be subject to certain conditions, one of which is that no sale of such liquors shall- be made on the Lord’s day, “ except that if the licensee is also licensed as an innholder, he may supply such liquor to guests who have resorted to his house for food or lodging.”
¶2It would seem to be unnecessary, in a complaint on § 1, to negative this exception contained in § 6. Commonwealth v. Tuttle, 12 Cush. 502. Commonwealth v. Jennings, ante, 47. If any negative averment is required, the complaint before us, alleging that the defendant sold intoxicating liquor, “ not having then and there any license, authority or appointment according to law, to make such sale,” is sufficient, and warranted the introduction of evidence of any sale which was unlawful under the statute. Commonwealth v. Lafontaine, 3 Gray, 479. Commonwealth v. Fredericks, 119 Mass. 199.
¶3The evidence admitted was • therefore competent. No question of its sufficiency, or of the burden of proof, is reserved by the bill of exceptions. If the defendant was surprised by the ground ultimately relied on by the district attorney, his remedy was by motion for a postponement or continuance.
¶4 Exceptions overruled,