case Haswell who tam against SHALLEE and other if a importer of wine in cask  or a wholesale dealer sell three dozen of quart bottle of wine unmeasured to  three different person for their private use this be a retail of wine within  the statute car c and car c and quaere if it be not a offence within Edward c  S SC stram SC and the plaintiff who tam c bring a action on the statute car c  against the defendant for retail wine without a licence and upon the general  issue nil debet be plead the jury as to part find a general verdict for the  plaintiff and as to the residue they find special that the defendant be  wholesale importer of wine and pay the duty for the same that they take the  oath which be that they be importer by wholesale and that the wine mention in  their entry do not belong to a vintner or retailer the verdict further find  that the defendant be not free of the vintner company that they sell red port  in three dozen of bottle common call quart bottle to three different person  but that it be not measure or by the gallon and that it be drink in the  private family of the buyer but whether upon the whole matter in form  aforesaid find c win sergeant for the defendant admit the general question  upon this verdict to be whether the defendant have be such retailer as ought  to have take out a licence but argue that such question man be divide into two  question first whether a merchant importer be oblige by the Act to take out a  licence to retail second whether sell wine in the manner hereby find be retail  it within the penalty of the Act to bring a case within the Act it be  necessary that the wine sell be spend in the seller house or in a house in his  tenure or occupation for the word of the Act to be spend in the house run  through the whole sentence in hard Lord hale say that the mischief intend to  be prevent by the Act be not only to hinder disorder in tavern but also to  prevent the number of tavern and the single point which the court adjudge in  that modern case be that a man be not licence to keep a tavern by have a  licence to retail wine it be also Mr baron turner opinion in that case that  merchant importer vintner and retailer be synonymous term the case of astell v  Andrews stram SC ld ray a differ from the present the oath be not there find  in that case it be find that the wine be sell to be spend in a inn it be a  sale by a single gallon which be prohibit in express term here the defendant  sell the wine in bottle unmeasured by any measure and instead of be sell to a  public inn the wine be drink in private family the second point be whether  sell wine in this manner be retail it within the penalty of the Act it be not  find that the defendant ever sell a pint or a quart or a single gallon which  be the case of astell v Andrews the jury find that the defendant sell wine in  bottle common call quart bottle be insufficient for nothing be to be take by  inference or collection in a special verdict cro car show b and in the case in  hard though a licence to retail wine be in effect to keep a tavern yet the  court will not intend it to be so in a special verdict this find be also  uncertain for there be several kind of bottle common call quart bottle there  be a soldier bottle a parson bottle a proctor bottle and a fellow bottle and  yet these bottle which be common call quart bottle do in reality bold two  quart the jury have find that this wine be sell by no measure and it can be  intend that it be by measure only because they find the bottle common call  quart bottle which be a uncertain find a bottle be no determinate quantity in  law or know measure which be the manner in which the act of parliament  describe a trader and the statute Geo call the bottle Act be the only law that  mention bottle and yet it do not ascertain what be the measure of a bottle c  modern er p Mr solicitor general for the plaintiff wholesale importer be clear  within the general word of the Act and it will descend to retailer the word of  the Act include any great or lesser measure the sergeant say that a bottle be  no measure but the general word of the Act be design to take in any kind of  measure though the wine be draw direct into one without any intervene measure  the case in Hardr the court be divide can be of no earthly authority in the  world the general question upon this verdict will be whether the defendant be  such retailer as ought to have take out a licence for if they be they will be  liable to the penalty otherwise they will not it must be admit that at  commonlaw wine may be sell by any person in any proportion or measure without  incur a molestation unless the seller keep a disorderly house this be find to  be inconvenient a remedy be attempt so long ago as in the reign of Edward  modern the six for by the statute Edward c S retailer of wine be to be licence  and the wine not to be spend in the retailer house the car c make some further  alteration and allow retail wine within door the person have a licence the car  c recite the former and show that the intention of the legislature be that the  place where the wine be to be spend shall be indefinite and that it shall be  licence whether spend in or out of the house where it be sell the difference  between a wholesale and retail trader be that a wholesale trader import his  wine in pipe or hogshead and sell it in the same manner what be contend for on  the plaintiff part be chalk out a way to evade a Act of parliament and will  open a door to the practice of sell wine in small quantity which be retail if  a wholesale draper cut a piece of cloth it be retail it so if a wholesale  grocer sell a pound of plumb c be retail they in these kind of action in the  city the general question be whether the party cut the piece c or not for if  be do it be retail and I remember a case at nisi prius wherein it be so  determine the same objection which have be make here be make at the trial of  this cause videlicet that it do not appear that the word bottle be in the  statute or into what measure the wine be draw if therefore what the defendant  have do be sell by retail it be within the Act though not in the particular  measure specify therein for the Act likewise mention general any great or  lesser measure the special verdict state the wholesale importer oath who swear  that the wine enter do not belong to a vintner or retailer how far the  defendant conduct be consistent with their oath must be leave to their own  conscience for the reason of the oath be that wholesale importer pay less duty  and it be to be fear that they have take the wholesale oath in order to save  that and yet have make a great profit in sell by retail it have be endeavour  to distinguish the case of astell v Andrews from the present because there the  oath be not find though the sergeant himself be please to say afterward that  the find of the oath in this case be unnecessary and immaterial but as that be  a case in point for the plaintiff it be to be hope it will obtain a judgement  in point the case of astell v Andrews be a action upon this statute wherein  the jury find the defendant to be a merchant importer at Bristol that he sell  one gallon of wine to a person who carry it to the George inn in Bristol and  that it be drink there and though it be argue by Mr fazakerly that the  defendant have do but one act and that the wine be spend at another house and  that it be of ill consequence to extend penal law beyond the express word of  they the court hold that this be a retail within the Act and judgement be give  for the plaintiff the whole court incline that this be a retail in the  defendant within the statute and that the Act ought not to modern be evade by  the party make use of the measure of a bottle or such other measure as he  think proper probin justice observe that there be another distinction of a  bottle beside those take notice of at the bar which have not be mention and  that be a honest bottle which be a quart whether the measure of it be make of  glass or pewter c the court likewise incline that the case of astell v Andrews  be not exact in point to this case and order this to stand over for another  argument afterward in Hilary term in the thirteenth year of George the second  the court resolve that the sell as aforesaid be retail modern er p a appeal be  afterward bring in the house of lord where the judgement be reverse the reason  of this reversal be because the quart bottle be not find by the special  verdict to be a retail measure SC stram but see upon this point a note in Mr  Nolans edition of strange report of the same case a and a venire de to make  new award that a court of appeal may award a venire de to make new see  Kynaston v mayor of Shrewsbury stram Parker v well cook b l term Rep  Lickbarrow v mason term Rep Harwood v Goodright Cowp grant v astle dougl bend  v baker term Rep b