Complaint for keeping and maintaining a common nuisance, to wit, a certain tenement in New Bedford used for the illegal sale and illegal keeping of intoxicating liquors, on April 1, 1886; and on divers other days and times between that day and May 22, 1886. Trial in the Superior Court, before Staples, J., who allowed a bill of exceptions, in substance as follows:

It appeared that, during the time covered by the complaint, the defendant was a duly licensed innholder at 683 Purchase Street in New Bedford, and held a license of the first class, under the Pub. Sts. c. 100, for the sale of intoxicating liquors on said premises from May 1, 1885, to May 1, 1886, and also a similar license for the same premises from May 17, 1886, to May 1, 1887; and that the licenses granted included the whole of said premises, and there were no orders of the boards granting said licenses for the removal of partitions, curtains, or screens.

The government offered evidence tending to show that, on Sunday, April 25, 1886, sales of whiskey were made to four or five persons in the defendant’s middle room or bar-room, furnished and sold by the defendant and got from the bar; that on Saturday night, April 17, 1886, after eleven o’clock, there were forty people in the bai-room, of whom eight or ten called for and drank whiskey and beer from glasses at the bar; that on Sunday evening, April 18, several persons were seen going into and coming out of the premises; that from April 1 to May 17, there was a curtain at each window of the front room on the street, and, by reason of it, nothing could be seen of the interior of the place.

There was other evidence tending to show other sales in said bar-room on Sundays, and after eleven o’clock at night, to persons not guests, the curtains being in the condition aforesaid.

All of the above evidence was controverted by the defendant’s witnesses. *

The government also introduced evidence tending to show that, from April 1 to May 17, the defendant kept and maintained a partition, extending the entire width of the building on Purchase Street, between the front and middle rooms thereof on the first floor, which obstructed the view of the interior of the middle room, which was theD bar-room testified to as the place where said illegal sales were made, and of the business conducted therein. It appeared that said partition was permanent, and a part of the building as originally constructed ; and that the middle room was used and occupied as a lunch and bar room.

There was also evidence tending to show that, during said time, the lower half of the window on either side of the entrance to the building on Purchase Street was covered by a curtain or screen, which obstructed a view of the interior of the front room, and of the business conducted therein.

No evidence was offered tending to show that said curtains or screens were affixed to the windows after the issuing of said license.

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