The defence here taken is upon an alleged variance between an allegation in the indictment and the proof offered to sustain it. The indictment alleges a sale of' spiritous liquors to Charles H. Haddock; but the defendant contends that the facts given in evidence show that the sale was not made to Haddock, but to one Pilsbury. The test proposed by the counsel for the defendant is that of the legal right of property in the liquors, acquired by the sale thereof by the defendant; and it is contended that the effect of the sale was to vest in Pilsbury the property in the liquors. But if this position, as to the legal right of property in Pilsbury, be sound, we do not think that the result contended for would necessarily follow ; as we are not satisfied that the present case is to be decided by that test.

The allegation of a sale by the defendant to Haddock, for all the purposes of this indictment, or essential to its maintenance, may well be sustained by proof of a contract of sale by the defendant on the one part, and Haddock on the other; they-being the only parties known to each other as participators in *310the sale. As it regards the defendant, Haddock was so far the vendee, that had the liquors been purchased on a credit, Haddock would have been responsible for payment. He disclosed no agency, and did not profess to act in behalf of another. The defendant standing in this relation to Haddock, treating with him as a purchaser on his own account, cannot now deny that relation, for the purpose of avoiding the penalty attached to that sale, as a violation of the license law. As between the immediate parties to the transaction, the case disclosed was that of a sale by the defendant to Haddock ; and this being the case, it is not competent for the defendant to avoid a conviction on this indictment, because it may now be made to appear that Had- ' dock, although apparently acting for himself and contracting as the vendee, was in truth making the purchase at the request and with the money of Pilsbury. For the purposes of this indictment, the court are of opinion that the sale might, upon the evidence, be considered as a sale to Haddock, and that this allegation is therefore well sustained.

Exceptions overruled.