The testimony of witnesses as to what was said and done by the disturbers of the peace in the highway, and at a considerable distance from the house, was erroneously admitted in evidence. Their alleged conduct and behavior did not occur in the presence nor with the knowledge of the defendant or of any of his family, and he therefore cannot be made *301responsible for it. Commonwealth v. Harwood, 4 Gray, 41. To this extent, the exceptions must be sustained. In all other respects, the rulings of the presiding judge, including his refusal to allow the motion in arrest of judgment, appear to have been correct.
A new trial must accordingly be granted on the first count. But judgment is to be entered on the verdict rendered on the second count.