
    Commonwealth vs. Charles T. Sumner.
    Norfolk.
    March 28.—30, 1878.
    Ames & Morton, JJ., absent.
    No exception lies to the exclusion of evidence, which is not shown by the bill of exceptions to be material to the issue.
    Complaint on the Gen. Sts. c. 87, §§ 6, 7, for keeping and maintaining a common nuisance, to wit, a certain tenement in Holbrook, used for the illegal sale and illegal keeping of intoxicating liquors.
    At the trial in the Superior Court, on appeal, before Pit-man, J., the material question was whether the defendant sold ale, lager beer, and strong beer, or, as he claimed, a certain mild, unintoxicating beer not prohibited by law. The evidence as to this was conflicting. A witness for the government testified, upon cross-examination, that there was but one express in the town; that he was the driver of an express wagon and took orders weekly from the defendant for goods; that he made the delivery of such goods as came by railroad to the defendant. He was then asked by the defendant to describe the packages so delivered during the time covered by the complaint. The attorney for the government objecting, the defendant stated that he proposed to show by the witness, that all the goods so brought and delivered by him were in barrels, and were marked “ Non-intoxicating Brunswick Hop Beer,” and that lager beer is universally put up in bottles, and in cases or in kegs, and never in barrels, and so sold and delivered. The judge excluded the question.
    The jury returned a verdict of guilty; and the defendant alleged exceptions.
    
      J. L. Eldridge, for the defendant.
    <7, R. Train, Attorney General, W. 0. Loring, Assistant Attorney General, for the Commonwealth.
   By the Court.

It does not appear that the articles in the express wagon were the articles the sale of which was relied on to support the complaint. Exceptions overruled\  