Haines v. Hanrahan , 105 Mass. 480 ( 1870 )

Gray, J.

The plaintiffs have not shown any ground for sustaining either of their exceptions to the rulings and instructions at the trial.

1. The testimony introduced by the defendant to show that the ale was intoxicating does not appear to have been incompetent. The court cannot know, as matter of law, that the witness who testified that it was intoxicating was not able to satisfy himself of that fact by his senses of sight and smell.

2. If the law of New Hampshire, on which the plaintiffs relied, was contained in a written statute, the question of its construction was doubtless for the court. But no statute of another state can be considered by this court, which is not made part of the bill of exceptions. Knapp v. Abell, 10 Allen, 485. Upham v. Damon, 12 Allen, 98. Kline v. Baker, 99 Mass. 253. And the only statute referred to at the argument prohibits all sales of spirituous liquors by persons other than town agents ; and does not make a sale, completed by contract and delivery in New Hampshire, (as this sale is found to have been,) valid if the liquor was to be carried away and consumed out of that state. Gen. Sts. of N. H. o. 99, § 13.

3. The instruction given sufficiently covered the second instruction requested. The evident meaning of the instruction given is, that the jury, in determining the question whether the ale was intoxicating, were to consider whether it was an intoxicating liquor in the common sense of the word “ intoxicating ”—not (as the plaintiffs contend) in the common sense of the word “ ale.”

Exceptions overruled.