
    Commonwealth vs. Ethan A. Crawford.
    Since St. 1839, c. 161, no appeal lies to this court from the judgment of the court of common pleas upon a motion in arrest of judgment in a criminal case; but the remedy is by a bill of exceptions.
    The defendant, being convicted by a justice of the peace, upon a complaint, containing two counts, for illegal sales of liquors, on the 4th of December, 1851, to be used in his house, contrary to Rev. Sts. c. 47, § 2, and sentenced to pay a fine of twenty dollars and costs, appealed to the court of common pleas. After judgment by default in that court, he filed a motion in arrest of judgment, because the complaint did not allege in the first count that the quantity sold was less than twenty-eight gallons, and in the second count, did not aver a sale of spirituous liquor, but only of “ intoxicating ” liquor. After the motion was filed, the district attorney entered a nol. pros. as to the second count, and the motion in arrest was overruled. The defendant appealed to this court.
    
      A. V. Lynde, for the defendant.
    1. The judgment by default was upon both counts, and was erroneous, and after judgment, one count could not be nol. pros, or the judgment changed. Commonwealth v. Tuck, 20 Pick. 356; Commonwealth v. Stedmcm, 12 Met. 444.
    2. There is no offence in a sale of spirituous liquors, as there is no statute against such sale, but only against a sale of intoxicating liquors. Rev. Sts. c. 47, §§ 1,2,3, as amended by St. 1850, c. 232, striking out the word spirituous, and inserting the word intoxicating. 2 Hale P. C. 170; Commonwealth v. Tuck, 20 Pick. 362.
    
      
      J. H. Clifford, (attorney-general,) for the commonwealth.
   By the Court.

1. We are inclined to believe that it is not, necessary to allege the quantity sold to be less than twenty-eight gallons. Commonwealth v. Brown, 12 Met. 522.

2. The magistrate’s jurisdiction, extending to twenty dollars, his judgment could be well maintained on the first count, even if the second count was bad; but intoxicating liquors includes spirituous liquors and something more. Spirituous liquor is intoxicating, and the complaint is the same as if it alleged a sale of “ rum,” “ brandy,” &c.

3. But this appeal was not rightly taken, and allowed. It should have come up upon exceptions. St. 1839, c. 161. The appeal must, therefore, be dismissed, without absolutely deciding the points of law presented, and the case remitted to the court of common pleas for their consideration.

Case remitted.  