This case was properly before the court of common pleas. It came there by appeal taken by the defendant. It might have been properly taken from an erroneous judgment, and to avoid the effect of that judgment. Commonwealth v. O’Neil, 6 Gray, 345. Hence, assuming that the defendant’s plea of nolo contendere before the justice ought not to have been received without the assent of the district attorney, as is prescribed in the St. of 1855, c. 215, § 35, and did not authorize the sentence passed thereon, yet that furnished no reason for discharging the defendant, and dismissing the case brought by him to the court of common pleas by appeal. Upon such appeal the case would proceed to trial under a proper plea by the defendant. In the present case that plea was “ not guilty,” and under that plea all the legal rights of the defendant were *14secured. The proceedings were correct, and the motion in arrest of judgment must be overruled.
As to the defendant’s exceptions to the ruling of the court: For the reasons already stated, the court properly ordered the defendant to plead anew. The testimony of Hudson was properly rejected. The fact that the defendant’s employer had given him orders to sell no liquors was entirely immaterial upon the trial of an indictment against the clerk, where there was direct evidence of such sales. It might have been proper, had the master been indicted, to introduce evidence that such sales were against his orders and without his consent, or under circumstances by reason of which he was not responsible for the sale. But here the party making the sale was indicted; and the single question was, whether in fact he had made such sales. The sale to Crawford, charged in the first count, might well be proved by other testimony than Crawford himself, and it was so proved, as well as the sale to William E. Smith in the second count. Exceptions overruled.