majority">Dewey, J.

The offence is well charged in this indictment, according to the decision in the case of the Commonwealth v. Thurlow, 24 Pick. 374, unless the objection taken to the averment as to the license is valid. This objection, which is also relied upon, is, that there is no proper averment, that the defendant Tilton, against whom the verdict was rendered, was not duly licensed as a retailer of wine and spirits according to law. It is said, on the part of the defendant, that the indictment only negatives a joint license, and is perfectly consistent with a separate license to Tilton. But this, we think, is not a correct view of the matter. The allegation may be properly taken to be broad enough to embrace a license in its most extended sense; a license to both defendants, either jointly or severally. Had Tilton alone been licensed to sell spirits, upon the proof of that fact, he must have been acquitted; for the allegation in the indictment, “ without being first duly licensed as a retailer,” would have been disproved. The case of the Commonwealth v. Tower, 8 Met. 528, is quite analogous upon this point. In that case, it was held, that an allegation negativing a license to both might be taken to apply to the defendants individually as well as jointly. The same case is a direct authority upon the point, that two or more persons may be jointly charged in the same indictment for a sale of spiritous liquors without license.

Exceptions overruled, and judgment on the verdict.

On the trial of a second indictment against the same defendants, for selling spiritous liquors without license, it being in evidence, that the defendants uniformly refused to sell, except upon a physician’s order or prescription; that in the case of each of the sales alleged in the indictment, the buyer brought such order or prescription; and that at the time of these sales, there was no druggist or other person licensed to sell spiritous liquors within the county of Hamp. *54shire; the defendants requested the court to instruct the jury that, if they were satisfied of the truth of these facts, the defendants were justified in making the alleged sales, on the ground, that the liquors sold were for a medicine, and the preservation of health.

The court refused to give the instructions requested, but directed the jury, that the defendants could not lawfully retail spiritous liquors, as alleged in the indictment, however strong a necessity there might be for the buyer’s using it as a medicine, or for the preservation of health, without a license first obtained according to law.

The defendants, being convicted, alleged exceptions, which were overruled in this court; and judgment was thereupon entered on the verdict.

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