¶1In general, the burden of proof is on the Commonwealth to prove every substantive fact of a criminal charge, even where it requires proof of a negative. And this rule was affirmed by this court, and applied to the case of selling liquors without license, in Commonwealth v. Thurlow, 24 Pick. 380. The legislature interposed and passed an act placing upon the defendant the burden of proving a license, “ in all prosecutions for selling spirituous or fermented liquors without license.” St. 1844, c. 102. But that statute is expressly limited to prosecutions for selling liquors, and the court see no reason for departing from the general rule, and applying this statute exception to a' distinct class of offences. Upon the trial of the indictment for a nuisance, therefore, the instruction was wrong, and there must be a New trial in the court of common pleas.
¶2In the second case, the plea in abatement was rightly overruled. The pendency of another indictment, even if for the same offence, is not ground of abatement.
¶3The judge rightly ruled that the burden of proving authority was upon the defendant. The rule established by the legislature by the St. of 1844, has been uniformly applied by the court to all prosecutions for selling .spirituous or intoxicating liquors without license or authority of law; as, for instance, to prosecutions under the Sts. of 1850, c. 238, and 1852, c. 322. Commonwealth v. Kelly, 10 Cush. 69. Commonwealth v. Tuttle, 12 Cush. 503.
¶4*461The conviction in the first case was nothing but a verdict, and was therefore rightly held no bar to the second indictment. And that verdict having now been set aside, there is no reason why this indictment should not be maintained.
¶5We are not called upon to decide whether the conviction of being a common seller in this case will be a bar to an indictment upon the same evidence, for a common nuisance.
¶6Exceptions overruled.