This complaint is insufficient as charging an offence under the Rev. Sts. c. 47, <§> 1, by which the offence of being a common seller of wine, ifcc., is created and made punishable. There is nothing in the complaint to authorize the inference of such charge. Comm'th v. Stowell, 9 Met. 569, is decisive on this point. The question then is, whether the complaint is sufficient as a charge of an offence under the third section of the same chapter. Rejecting, as we may, the former part of the complaint, as surplusage, the residue contains a direct charge of a sale of spiritous liquors to the complainant, in a less quantity than twenty-eight gallons. This is a sufficient charge of a sale under the third section ; and, if nothing more were requisite, the complaint might be supported under that section, and judgment be rendered against the defendant, as was done in the case of Comm'th v. Leonard, 8 Met. 530.

But it is urged, that there is no sufficient allegation in the complaint, that the defendant was not duly licensed to make *507such sale. The allegation is, that she. was not duly licensed as “ a retailer of wine and spirits according to law.” If the complaint, upon the face of it, clearly indicated that it charged a sale of spiritous liquors, in a quantity less than twenty-eight gallons, to be carried away from the place of sale, for future use, so that the charge contained in it was exclusively under the third section, then the introduction of the precise negative words of that section, relative to a license, would be sufficient. But the allegation of a sale is entirely general, and there is nothing in the complaint to indicate whether the sale was of liquor to be drank at the time, or to be carried away. If the sale were of liquor to be drank on the premises, then it might have been made by the defendant under a license as an innholder, or common victualler ; and there is no allegation in the complaint that the defendant was not licensed as such innholder or common victualler. This allegation is necessary, unless the more general words are introduced, “ that the defendant was not duly licensed therefor,” which would negative any license. Comm'th v. Leonard, 8 Met. 530. For want of this averment, the complaint is defective, and the judgment must be arrested.