¶1The court are of opinion that the indictment is good, being within the authority of Commonwealth v. Thurlow, 24 Pick. 374. - In that case, the same exception was taken to a count in all material respects exactly like the present, and the exception was overruled and the count held good.
¶2An averment that the defendant did sell and retail two quarts of spiritous liquors is an averment that he sold the liquor in a less quantity than twenty-eight gallons. Commonwealth v. Eaton, 9 Pick. 165. Commonwealth v. Pearson, 23 Pick. 280, note.
¶3In the case of Commonwealth v. Odlin, 23 Pick. 275, which was under the St. of 1838, c. 157, (called the fifteen gallon law,) the averment was simply, that he “ did sell one pint of spiritous liquor,” without using the word “ retail,” or any other words indicating that it was one pint only, or that it was not part of a larger quantity.
¶4Judgment affirmed.