The jurisdiction of the Superior Court in this case, being appellate only, is limited to the same accusation which appears, by the papers transmitted to it by the court to which the complaint was originally presented, to have been tried and decided in that court. Gen. Sts. c. 173, § 3. Commonwealth v. Doty, 2 Met. 18. Commonwealth v. Burns, 8 Gray, 482. Commonwealth v. Phelps, 11 Gray, 72.
The question, whether the line drawn across that part of the record of the Municipal Court, which set forth its judgment, constituted an erasure, was a question of fact, to be determined upon inspection of the paper, the decision of the Superior Court upon which cannot be revised by this court. Commonwealth v. Davis, 11 Gray, 4.
But the record of the Municipal Court, according to the copy filed in the Superior Court, does not sufficiently identify the complaint on which the defendant was tried in the Municipal Court; for it describes the complaint as alleging that the defendant kept and maintained a nuisance on the first day of March, 1873 ; whereas the complaint further charges him with keeping and maintaining the same nuisance on divers other days between that day and the twenty-first day of June, 1873. The offence being of a continuing character and consisting of a series of acts, the evidence must be confined to the time alleged. Commonwealth v. Briggs, 11 Met. 573. Commonwealth v. Traverse, 11 Allen, 260. Commonwealth v. Foley, 99 Mass. 499. The complaint upon which the defendant was tried in the Superior Court might be supported by evidence which would not have been admissible under the complaint upon which he appeared by the record to have been tried in the Municipal Court.
As the defect was not in the complaint itself, but appeared for the first time upon the face of the papers transmitted to the Superior Court, and affected its jurisdiction, it was open to the defendant after verdict in that court. St. 1864, c. 250, §§ 2, 3.
The defendant’s exceptions to the overruling of the motion h¡ arrest of judgment must therefore be sustained. But if the Mu*207nicipal Court should amend its record, and certify a copy thereof as amended to the Superior Court, the defendant might be tried there anew. Commonwealth v. Doty, 2 Met. 18. Commonwealth v. Dressel, 110 Mass. 102. Commonwealth v. Taylor, ante, 1. The proper order therefore will be not that judgment be arrested, and the defendant discharged, but only that the
Exceptions be sustained, and the verdict set aside.