discussed was whether the action would survive against his administrator, and it was held that it would. Upon the evidence in the present case, we think that no action, certainly no action of contract for the cause of action declared on, could have been maintained against the intestate. Even if the intestate had been liable in tort, we are not prepared to assent to the proposition that an action of contract will lie against an administrator for a tort of his intestate for which no action of contract could have been sustained against him.

In the opinion of a majority of the court, the entry must be, Exceptions overruled.

COMMONWEALTH vs. JAMES E. WELCH.

Berkshire. September 11, 1888. - September 24, 1888.

Present: MORTON, C. J., DEVENS, W. ALLEN, C. ALLEN, & KNOWLTON, JJ. Intoxicating Liquors - Common Nuisance License.

At the trial of a complaint for keeping and maintaining a common nuisance, to wit, a tenement used for the illegal sale and keeping of intoxicating liquors, it appeared that the defendant had a license of the first class, under the Pub. Sts. c. 100, § 10, to sell such liquors in a front room; that he had no license as an innholder; and that during the time alleged he stored in an unconnected rear room large quantities of liquors, which were kept for sale under the license in the front room, and not otherwise. Held, that the keeping of the liquors in the rear room was illegal, and that the defendant was liable for keeping and maintaining such a nuisance.

COMPLAINT to the District Court of Northern Berkshire against the defendant, for keeping and maintaining a common nuisance, to wit, a certain tenement in North Adams used for the illegal sale and keeping for sale of intoxicating liquors, from May 1, 1887, to December 16, 1887.

At the trial in the Superior Court, before Hammond, J., the jury returned a verdict of guilty, and the judge reported the case for the consideration of this court. The facts appear in the opinion.

C. J. Parkhurst, (A. W. Preston with him,) for the defendant. A. J. Waterman, Attorney General, for the Commonwealth.

MORTON, C. J. It appeared at the trial, that the defendant had a license of the first class, under the Pub. Sts. c. 100, § 10, to sell intoxicating liquors in a certain room in a building called the Mansion House in North Adams, which room was particularly designated and described in the license; that he had no license as an innholder; that during a part of the time covered by the complaint he kept and stored large quantities of intoxicating liquors in a rear room adjoining the room specified in the license, but having no connection or communication with it, which liquors were kept for the purpose of being sold under the license in the room specified therein, and not otherwise. We assume, in favor of the defendant, though it is not directly stated, that he had a license as a common victualler.

We are of opinion that the Superior Court rightly ruled that such keeping in the rear room was illegal. The statute provides that a license of the first class shall be issued only to persons who hold a license as an innholder or a common victualler, and that it "shall specify the room or rooms in which such liquors shall be sold or kept by a common victualler." It further provides that "no person licensed as aforesaid, and not licensed as an innholder, shall keep, sell, or deliver any such liquors in any room or part of a building not specified in his license as aforesaid." Pub. Sts. c. 100, § 9, cl. 5. This last provision is not merely a condition of the license, but is a substantive provision relating to premises not covered by the license, and a violation of it is punishable under the Pub. Sts. c. 100, § 18.

It is a part of the scheme of the statute, that the public officers may at any time enter upon the licensed premises to ascertain the manner in which the business is conducted, and to examine the quality and purity of the liquors kept for sale. Pub. Sts. c. 100, § 15. This furnishes a reason why all liquors kept for sale should be kept in the licensed premises, which are open to the inspection and examination of the public officers. But whatever may be the reason, the statute is explicit, and clearly prohibits a licensee of the first class from keeping liquors intended for sale in any other place except the room or rooms specified in the license. It follows that, upon the facts of this case, the defendant was guilty of the illegal keeping of intoxicating liquors in the rear room, and that he is liable to a com

plaint or indictment under the Pub. Sts. c. 101, §§ 6, 7, which provides that whoever keeps or maintains a tenement used for the illegal keeping or sale of intoxicating liquors shall be liable to the penalty therein specified.

Judgment on the verdict.

COMMONWEALTH v8. MARY WHALEN.

Berkshire. September 11, 1888. September 27, 1888.

Present: MORTON, C. J., DEVENS, W. ALLEN, C. ALLEN, & KNOWLTON, JJ.

Intoxicating Liquors — Common Nuisance — Error in District Court·

Jurisdiction of Superior Court on Appeal - Evidence.

Error in the proceedings upon a complaint in a District Court is no ground for dismissing the complaint on appeal.

At the trial, on appeal, of a complaint for keeping and maintaining a common nuisance, to wit, a certain tenement used for the illegal sale and keeping for sale of intoxicating liquors, an officer testified that during the time alleged he seized on the defendant's premises upon a search-warrant a cask of liquor, and on cross-examination stated, without objection, that it was returned by order of the court, the record of which was not introduced. The presiding judge recalled the jury, after they had left their seats at the close of the charge, and directed them to disregard the fact of such return, because the record was not in evidence, but did not allude to the seizure. Held, that the direction was

erroneous.

COMPLAINT to the District Court of Northern Berkshire against the defendant and Thomas Whalen, for keeping and maintaining a common nuisance, to wit, a certain tenement in North Adams used for the illegal sale and keeping for sale of intoxicating liquors from October 13, 1887, to March 6, 1888.

In the Superior Court, on appeal, the defendant seasonably filed a plea in abatement, and a motion to dismiss the complaint, both reciting, in substance, that the Superior Court had no jurisdiction, because the defendant was improperly tried in the District Court, and that its judgment and the sentence rendered thereon were illegal and void. At the hearing on the plea in abatement, it appeared in evidence, or was admitted, that on March 19, 1888, the case came on for trial against the defendant and Thomas Whalen, who was her husband, in the absence

of the defendant, who claimed to be sick; that she never re-, quested that she might be tried in her absence; and that her counsel, who was also counsel for Thomas Whalen, never consented or agreed that her trial should proceed in her absence; that her absence from the court-room was not discovered until the case had been fully tried; that Thomas Whalen was discharged, and the case as against the defendant was continued until the next day; that on March 20, 1888, the defendant was arrested and brought before the District Court upon a warrant issued upon a complaint for the unlawful keeping of intoxicating liquors; that thereupon a nolle prosequi was entered as to that complaint; and that immediately thereafter she was adjudged guilty, and sentenced to fine and imprisonment. Hammond, J., overruled both the motion to dismiss and the plea in abatement.

At the trial, the government was permitted to introduce, against the objection of the defendant, certain evidence which is not now material.

The complainant testified that, as an officer within the period named in the complaint, he went to the house where the defendant and her husband lived, with a search-warrant, for the purpose of searching the premises and seizing any intoxicating liquors unlawfully kept there; that he found in a coal shed in the rear of the house, the key of which was found in the defendant's possession, a box containing a cask or keg of liquor, which was full and had never been opened; and that he seized this keg by virtue of the warrant and took it away. Upon cross-examination he testified that it was returned by order of court, no record of which was introduced; and that he did not return it, but caused it to be sent back. At the close of the charge to the jury, and after the jury had left their seats and had started to go to their room, the judge called them back, and instructed them that they should disregard the fact that the keg or cask of liquor seized was returned; that, if it was returned by order of court, the record of the court was the proper evidence of the same; and that, there being no record of the court in evidence, and the reasons for the order not appearing in evidence, the jury should disregard the fact that the liquor seized was returned. The jury returned a verdict of guilty; and the defendant alleged exceptions.

E. M. Wood & M. E. Couch, for the defendant.

A. J. Waterman, Attorney General, for the Commonwealth. DEVENS, J. Assuming in favor of the defendant's contention, that Mary Whalen could not properly have been found guilty of the offence charged against her, and sentenced therefor, without other and further hearing than that which she received from the District Court, this irregularity could not operate to deprive the appellate court of its jurisdiction, or afford ground for sustaining the defendant's plea in abatement, or motion to dismiss. The District Court had jurisdiction of the subject matter of the complaint, and of the person of the defendant, even if the defendant was also brought before it upon a warrant issued upon another complaint, which was not further prosecuted. It had a right to inquire into the facts, to apply the law, and to impose the proper sentence. If its judgment was erroneous, an appeal could be taken for the purpose of avoiding the effect of it. Such appeal in the case at bar vacated the judgment of the District Court, rendered immaterial all errors and irregularities in the proceedings there, and gave the defendant her full rights in the court above, as the whole case was thus opened there as to the law, the facts, and the judgment. Commonwealth v. O'Neil, 6 Gray, 343. Commonwealth v. Tinkham, 14 Gray, 12. Commonwealth v. Mc Cormack, 7 Allen, 532. Commonwealth v. Calhane, 108 Mass. 431. Commonwealth v. Sheehan, 108 Mass. 432, note. Commonwealth v. Harvey, 111 Mass. 420. Commonwealth v. Holmes, 119 Mass. 195. Commonwealth v. Fredericks, 119 Mass. 199.

In Commonwealth v. Tinkham, ubi supra, it was held that, assuming that the plea of the defendant did not authorize the sentence passed by the magistrate, no reason was shown for discharging the defendant, or dismissing the case brought by him to the Court of Common Pleas by appeal, but that it was the duty of that court to try the case upon the appeal under a proper plea. The Superior Court had therefore jurisdiction to try the case at bar on the appeal.

We do not discuss the several exceptions to the admission of evidence taken by the defendant, as upon a single ground we are of opinion that there should be a new trial; and the evidence then presented may render such discussion superfluous.

The complainant testified that he was an officer within the