It seems to us that the indictment is sufficient. The allegation that the defendant presumed to be a common seller, by retail, is enough, without alleging that the quantity was less than twenty-eight gallons. That may be deemed the legislative definition of the term retail; and it is matter of evidence for the defendant, to show that the quantities which he sold were not less. It is like the case of the Commonwealth v. Messenger, 4 Mass. R. 462, a prosecution for a violation of the statute for the due observation of the Lord’s day ; in which the allegation, that the defendant worked on the Lord’s day, was held sufficient, although the statute defines precisely the hours which are to be considered the Lord’s day, and there was no allegation that it was within these hours that the offence was committed.

According to the agreement of the parties, the defendant m jst plead guilty to the indictment.