1. We are inclined to believe that it is not, necessary to allege the quantity sold to be less than twenty-eight gallons. Commonwealth v. Brown, 12 Met. 522.
2. The magistrate’s jurisdiction, extending to twenty dollars, his judgment could be well maintained on the first count, even if the second count was bad; but intoxicating liquors includes spirituous liquors and something more. Spirituous liquor is intoxicating, and the complaint is the same as if it alleged a sale of “ rum,” “ brandy,” &c.
3. But this appeal was not rightly taken, and allowed. It should have come up upon exceptions. St. 1839, c. 161. The appeal must, therefore, be dismissed, without absolutely deciding the points of law presented, and the case remitted to the court of common pleas for their consideration.
Case remitted.