The motion to quash the proceedings was properly overruled. The place to be searched was the basement numbered 195£ Washington Street, in Boston, and the complaint and warrant describe it with sufficient particularity to identify it. The court correctly ruled that proof that it was under a shop numbered 197 Washington Street did not create a variance.
As to the liquors seized in the room under the sidewalk, it was for the jury to say whether such room was attached to the basement as a part of it. If it was, the liquors found there were rightly seized under the warrant.
*431The statute provides that in proceedings for the forfeiture of intoxicating liquors, the complaint and warrant shall set out fully, plainly and substantially the place to be searched, the liquors to be seized and the person believed to be the owner or keeper of such liquors, intending to sell them contrary to law. St. 1869, c. 415, § 46. It also provides that whether a claimant appears or not, the court “shall proceed to try, hear and determine the allegations of such complaint,” and whether the liquors seized or any part thereof are forfeited. § 51. If a claimant appears, he has the right to have any issue of fact tried by a jury. §§ 55, 56. The allegation of place in the complaint is a material traversable allegation, and the claimant- has the right to require proof of it, and to submit this issue to the jury.
In the case at bar, therefore, the claimant had the right to submit to the jury the question whether the liquors seized, and which were before the court for adjudication, were kept in the premises described in the complaint. Unless they were thus kept by him as alleged in the complaint, they were not liable to forfeiture under these proceedings.
We are of opinion, therefore, that the learned judge who presided at the trial erred in refusing to modify the issue for the jury as requested by the claimant, and in refusing to rule that the jury must be satisfied that the liquors were kept by the claimant in the premises described in the complaint. For this reason the Exceptions are sustained.