The defendant is indicted for selling spirits by the retail without having a license therefor. Cunningham purchased of him a quart of spirituous liquors, for which he paid him the price, and it was agreed that the spirituous liquors should be put into a decanter for the purchaser, who should be at liberty to drink it by the glass as he might call for it, and under this arrangement Cunningham drank up the quart. His Honor was of opinion that the defendant violated the Act under which he was prosecuted. In this opinion we do not concur.
The Act creating the offense provides against retailing “ spirituous liquors by the small measure, that is to say in quantities less than a quart without a license.” In the case, State v. Kirkham, 1 Ire. Rep. 384, the Court said, if the contract between the parties had been that the seller should deliver a quart of spirits, which yoarticula/r quart should thereupon become the property of the purchaser, although the seller, by agreement, was to retain it for the qqwchaser, so as to be used by the latter, from time to time, as he might require, we suppose that such a contract (unless perhaps it were found by the jury that there was an intent thereby to evade the statute) must have been held to be a contract for the sale of a quart. In the case now under consideration, the particular quart became the property of the purchaser upon the price being paid : it was placed in a decanter separated from the rest of the spirits, to be used by the purchaser at his pleasure, and he might at any time have taken away the whole without the consent of the seller, and either carried it home or deposited it elsewhere. His Honor below did not avail himself of the doubt expressed by the Court in Kirkham’s case : he did not leave it to the jury to say whether the contract between the parties *339■was made with a yiew to evade the statute: that question is not before us, and we express no opinion upon it: but his Honor held that the facts proved in the case brought it within the operation of the statute. In this there is error, and a venire de novo is awarded.
Pee CukiaM. Judgment reversed.