¶1The quantity of spirituous liquors sold is immaterial; the statute offence consisting in the act of selling. In setting out a contract in pleading, it is necessary to set it forth correctly, and to prove it as laid ; but not so in alleging and proving an offence which is equally committed, whether one quantity or another is proved. Rex v. Burdett, 1 Ld. Raym. 148; Rex v. Gillham, 6 T. R. 265.
¶2That there are cases where the want of a videlicit will render an averment material, which would not otherwise be so, is undoubtedly true; 2 Saund. 291, n. (1;) but they are, generally, cases of contract, where, by the rules of' *83pleading, the averment of time, price, quantity, &c., may be either general or specific, at the election of the pleader; and where, if he adopts the specific form instead of the general, he is bound to prove it precisely as stated; as, where the averment of time may be made by the general allegation of “ afterwards,” or “ prior thereto,” or by specifying a subsequent or prior day; or in averring a sum or price, it may be generally, by setting forth, “ for a certain sum or price agreed to be paid,” or by stating the sum or price specifically. Where either of these modes of averment may be adopted at the pleasure of the pleader, if the day, sum or quantity is specifically stated, instead of the general averment followed by the specific statement under a videlicit, the averment must he proved precisely as stated. Here, the general averment that the respondent sold “ a certain quantity of spirituous liquors,” without specifying how much, would be bad. Some quantity must be stated, though immaterial to be proved precisely as stated, and whether stated under a videlicit or without it, the allegation is sustained by proof of any quantity. 1 Chit. Cr. Law 227.
¶3In the ease of State v. Flanders, reported in this volume, the court had occasion to consider the other question presented by this case, and it was there held that the object of section 2, of the act of June 25, 1858, was to extend the provisions of the act of June 27, 1857, which permit the parties to testify in civil cases, to causes then pending, but not to criminal proceedings. The grounds of the decision are stated in that case, and need not be here repeated. The exceptions being overruled, the motion for a new trial must be denied.