This indictment was found before the act of 1855 was repealed, and is therefore properly described as being a violation of that statute. Section 3 of that act provides that if any person shall be a common seller of spirituous liquors, &c., without being duly appointed as provided in this act, he shall forfeit and pay, &c. Section 8 of the same act provides that if any such agent shall knowingly sell any spirituous liquors, &c., for any other purpose than those for which he is authorized to sell the same, by the provisions of this act, or shall knowingly and intentionally violate any of the rules, &c., he shall be punished, &c.
Under this law a man may be indicted for being a common seller, without being duly appointed as agent; or, being appointed as agent and being thus authorized to be a common seller within certain limits, he may be indicted as such agent, for improper sales, suchas are not authorized by his appointment. But an agent cannot be indicted for being a common seller.
The same distinction is preserved and made more prominent in the General Statutes. To charge a man with being a common seller, under section 3, the indictment must allege that the respondent was not an agent, and without this latter allegation no offence is charged. This is an exception or qualification, contained in the same clause of the act which enacts the offence, and by.a well settled rule the indictment must allege that the respondent does not come within the exception or qualification. State v. Fuller, 33 N. H. 259; State v. McGlynn, 34 N. H. 422.
Indictment quashed.