to suppose that such a defect would be produced. Monies v. Lynn, 121 Mass. 442, 444. And in a later stage of the same case it was declared that a liability to become defective is not in itself a defect. 124 Mass.. 171. See, also, Hutchins v. Littleton, 124 Mass. 289. Under that statute, and earlier ones to the same effect, it had often been held that the liability of the town became absolute if the defect had existed for 24 hours, and that the town could not exonerate itself by proof of due diligence on its part. George v. Haverhill, 110 Mass. 506; Bodwell v. North Andover, Id. 511, 512.

The statute of 1877, (chapter 234,) which was an act to amend the above chapter of the General Statutes, made two changes in the section referred to. In the first place, it did away with the absolute liability imposed on towns where the defect had existed for 24 hours, and exonerated them from liability in all cases where there had been no lack of proper diligence on their part, (Rooney v. Randolph, 128 Mass. 580; Hayes v. Cambridge, 136 Mass. 402; S. C. 138 Mass. 461;) and it substituted therefor a liability for an injury or damage received through a defect which might have been remedied, or which injury or damage might have been prevented, by reasonable care and diligence on the part of the town, if such town had reasonable notice of the defect, or might have had notice thereof by the exercise of proper care and diligence on their part, although the defect had not existed for any particular length of time, and although the town had no actual notice thereof. This statute (reenacted in Pub. St. c. 52, § 18) is now in force. It has essentially modified the rule as declared in Monies v. Lynn, above cited, which is the principal reliance of the defendant in the present case. The duty is now cast upon towns of using reasonable care and diligence to remedy defects, and to prevent damage or injury to persons and property by guarding against the effects of causes which are likely to produce such defects. Flanders v. Norwood, 140 Mass.

The evidence in the present case was sufficient to show that the cover of the cess-pool was liable to come off, and to float away, from the accumulation of water in such rainfalls as often occur, and such as the jury would be warranted in finding that reasonable care, diligence, and prudence should guard against. The case is thus brought directly within the existing statute; and, taking the instructions as a whole, the case was fairly left to the jury.

It is, indeed, contended on the part of the plaintiff that the present case is distinguishable from Monies v. Lynn, and that the verdict might well be supported as fully within the decision in Hodgkins v. Rockport, 116 Mass. 573. But, in view of the change in the legislature, it becomes unnecessary to consider this ground of contention.

The evidence that the cover had been off on other occasions, within the year prior to the accident, was competent, as bearing on the question whether the defect might have been remedied or the injury prevented by reasonable care and diligence on the part of the town. Exceptions overruled.

(141 Mass. 270)

COMMONWEALTH v. WADENDORF.

Filed February 26, 1886.

(Suffolk, ss.)
INTOXICATING LIQUORS-UNLAWFUL SALE BY SERVANT.

Upon a complaint charging that the defendant unlawfully sold intoxicating liquors between the hours of 11 at night and 6 in the morning, if it is shown that the defendant gave strict orders to his servants that no sale should be made after 11 o'clock, and gave these instructions in good faith, intending them to be obeyed and enforced, and if a sale were made without his knowledge, he cannot be held guilty of the offense charged.

The facts appear in the opinion.

Aug. Russ, for defendant.

E. J. Sherman, Atty. Gen., for the Commonwealth.

MORTON, C. J. The complaint charges that the defendant, on October 3, 1885, unlawfully sold intoxicating liquors, between the hours of 11 at night and 6 in the morning. St. 1885, c. 90, § 1. At the trial it appeared that the defendant kept a restaurant and saloon, and that he had a license, one of the conditions of which was that no sale of spirituous or intoxicating liquors should be made therein between the hours of 11 at night and 6 in the morning. There was evidence tending to show a sale, by one of the defendant's witnesses, of a bottle of Bass ale after 11 o'clock at night on the day named in the complaint. The defendant introduced evidence to show that he had given strict orders to close the sale of intoxicating liquors at 11 o'clock at night, and wished the court to rule that "if one of his employes, willfully or in violation of his instruction, had sold a bottle of ale on that night, after 11 o'clock, such a sale would not make him liable under this law." The court refused this instruction, and instructed the jury that the license was violated if any sale was made after 11 o'clock, though by a servant in violation of the instructions of the defendant; and that, if the sale proved in this case was made by a servant of the defendant in the course of business which he was doing for the defendant, he was liable, although he had given directions to his servant not to sell after 11 o'clock.

It may be that a license is forfeited by the unauthorized act of another person done without the knowledge and against the express directions of the licensee. The legislature has judged it wise, in view of the wrong devices resorted to in order to waive the law, to make the conditions of license very stringent. It has been held in several cases that a licensee takes his license subject to the conditions, whatever they may be, and is bound at his peril to see that these conditions are complied with, or to lose the protection of his license. Com. v. Uhrig, 138 Mass. 492; Com. v. Barnes, Id. 511, and case cited. But the question in this case is not whether the defendant's license is forfeited. The complaint is not brought under the eighteenth section of chapter 100 of the Public Statutes, assigning that he has violated the provisions of his license. It is brought under the first section, which provides that "no person v.4N.E.no.8-52

shall sell, or expose or keep for sale, spirituous or intoxicating liquor, except as authorized in this chapter."

It was held in Com. v. Nichols, 10 Metc. 259, decided under a law similar in its terms, that the defendant was not liable, necessarily, as a seller, when the sale proved was made by a servant without his knowledge, in opposition to his will, and which was in no way participated in, approved, or countenanced by him. This decision is conclusive in the case before us. It would require a clear expression of the will of the legislature to justify a construction of a penal statute which would expose an innocent man to a disgraceful punishment for an act of which he had no knowledge, which he did not in any way take part in or authorize, but which he had forbidden.

In other parts of the statute, where the legislature intends to impose a more stringent liability, different language is used. Thus, broader language is used in the conditions of the license, such as "that no sale of spirituous or intoxicating liquors shall be made between 11 and 6 o'clock;" "that no liquors, except such as is of good standard quality, and free from adulteration, shall be kept or sold;" that "there shall be no disorder, indecency," etc., on the premises. It may be that the fair inference is that the legislature intended, by the use of this language, to hold the licensee responsible for the unauthorized acts of others, and to require that he should see, at his peril, that the conditions were complied with. Such a construction has been given to the twelfth section, which provides that no licensee shall place or maintain, or permit to be placed or maintained, on the premises any screen, curtain, or other obstruction. It was held that the defendant was liable for a screen or curtain which a servant maintained in the absence of the defendant, and against his orders, upon the ground that, in view of the language used, and the nature of the prohibited act, the inference was that the legislature intended to hold the licensee responsible for the condition of his premises, and liable whether the prohibited act was done by him personally, or by his agent left by him in charge of his business. Com. v. Kelley, 140 Mass.

The first section, upon which this complaint is based, subjects to punishment any person who sells liquor. It is to be presumed that the legislature intended to use the language in its natural sense, and with the meaning given to equivalent language by the court in Com. v. Nichols. It is not a necessary or reasonable construction to hold that it subjects to punishment a person who does not sell, because a servant in his employment, in opposition to his will, and against his orders, makes an unlawful sale. We are therefore of the opinion that the instructions requested by the defendant should have been given.

Of course, it would be for the jury, under the instruction, to determine whether the defendant did in good faith give instructions, intended to be obeyed and enforced, that no sales should be made after 11 o'clock. If he did, and a sale was made in violation of them, and without his knowledge, he cannot be held guilty of the offense charged in the complaint. Exceptions sustained.

(141 Mass. 111)

(Suffolk, ss.)

COMMONWEALTH v. MAGEE.

Filed February 23, 1886.

INTOXICATING LIQUORS-UNLAWFUL SALE OF BEER-CHEMICAL EXAMINATION. Upon a complaint charging the defendant with selling beer, containing more than 3 per cent. of alcohol at 60 deg. Fahrenheit, it is a question for the jury to determine whether or not, upon the evidence, the chemist, in analyz ing the same, complied with the requirements of the statute.

Complaint, alleging the keeping for sale, at Boston, on August 22, 1885, of certain intoxicating liquors. At the trial the government introduced evidence of the state assayer to prove that the liquor sold was beer, containing 3 58-100 per cent. of alcohol; that it was not lager beer; that the beer was cold when delivered to the witness for analysis; that the putting of the beer on ice would check fermentation, and that beer so kept would not increase in alcohol, except slowly; that beer, under favorable circumstances, would or might increase, in three or four days, three-quarters of a per cent. in alcohol. The defendant introduced evidence tending to show that the beer was not intoxicating at the time of delivery to the officer, the government claiming that the beer contained more than three per cent. of alcohol at the time of the keeping for sale. The defendant asked the court to rule that, to convict the defendant of keeping for sale the beer in question, the government must prove beyond a reasonable doubt that at the time of the seizure (keeping for sale) it contained more than 3 per cent. of alcohol at 60 deg. Fahrenheit; that the government had failed to show that the beer analyzed is within the statute,-the defendant claiming that there was no evidence tending to show that the beer, at the time of keeping and at the time of analysis, contained more than 3 per cent. of alcohol, by volume, at 60 deg. Fahrenheit. The court gave the first instruction; but, refusing to give the second, instructed the jury that whether the analysis was made as required by the statute was a question for them to decide; that if, as the case was left upon the evidence, and taking into consideration the position and experience of said assayer, they believed that the analysis was made by him as required, and were satisfied of it, they could convict the defendant. The jury found the defendant guilty, and to the refusal to rule, and to the ruling given as above, the defendant alleged exceptions.

John L. Eldridge, for defendant.

Edgar J. Sherman, Atty. Gen., for the Commonwealth.

BY THE COURT. The court rightly instructed the jury that, to convict the defendant of keeping for sale the beer in question, the prosecution must prove beyond a reasonable doubt that, at the time of the keeping for sale, it contained more than 3 per cent. of alcohol, by volume, at 60 deg. Fahrenheit. Pub. St. c. 100, § 27. There was evidence which justified the jury in finding this fact. The testimony of the chemist and state assayer, who analyzed the beer taken from the defend

ant's stock, justified the finding that at the time it was taken it contained more than 3 per cent. of alcohol, by volume, at 60 deg. Fahrenheit.

It is objected that the testimony of the witness does not state that he analyzed it at 60 degrees. It appeared that the beer was delivered by the defendant to an officer for the purpose of having it analyzed to ascertain if the defendant was violating the statute; that the officer took it to the witness, who was a state assayer, accustomed to analyze liquors, to see if the statute was violated. The jury might reasonably infer that he mistrusted the purpose for which he was to analyze the beer, and that in his testimony he meant to be understood as saying that, under an analysis according to the statute, it contained 3 58-100 per cent. of alcohol. The case was properly submitted to the jury. Exceptions overruled.

(141 Mass. 110)

(Norfolk, ss.)

COMMONWEALTH V. KERRISSEY.

Filed February 23, 1886.

INTOXICATING LIQUORS-USE OF PREMISES FOR UNLAWFUL SALE--PROOF OF USE FOR ONE DAY.

Upon a complaint for the illegal sale of liquor, if the defendant kept and ised the premises for the illegal sale or keeping of intoxicating liquors at any period of time, or on a single occasion, covered by the complaint, he is guilty of the offense charged, and it is not necessary to prove that he used it for the illegal purpose on other days, or at other times.

Complaint for the illegal sale of liquor. The material facts appear in the opinion.

J. L. Eldridge, for defendant.

E. J. Sherman, Atty. Gen., for the Commonwealth.

BY THE COURT. A part of the government evidence was that on March 26, 1885, a day covered by the complaint, the saloon of the defendant was searched under a search-warrant, and a bottle of beer found in a cupboard back of his bar. The defendant asked the court to rule that, if this beer was kept for sale in the saloon by the defendant, it was not sufficient to convict the defendant unless the jury should find that the saloon was used at other times for the illegal keeping and illegal sale of intoxicating liquor by the defendant. The court could not properly give this instruction; for, if the defendant kept and used the premises for the illegal sale or keeping of intoxicating liquors at any period of time, or on a single occasion covered by the complaint, he is guilty of the offense charged, and it is not necessary to prove that he used it for the illegal purpose on other days or at other times. Com. v. Cogan, 107 Mass. 212. The instructions, substantially to this effect, given in answer to the request of the defendant, are not open to exception. Exceptions overruled.