1. It is not necessary to decide whether the first count could have stood with the others; for having been negatived by the jury, it is as if it had never been inserted in the indictment. Kightly v. Birch, 2 M. & S. 533.

2. A sale of intoxicating liquors is a delivery, upon compensation made, or stipulated to be made. There must be an agreement to pay, to make it a sale ; otherwise, it is a mere gratuity. Here it was left doubtful upon the evidence, until the witness testified that the defendant declined to take any pay. There was then no evidence which ought to be left to the jury. The exceptions must therefore be sustained as to the third count.

The attorney general then, with the leave of the court, entered a nolle prosequi upon this count, and the court overruled the exceptions as to the other counts.