Ale, being produced by fermentation and not by distillation, is not “ spirituous liquor ” within the meaning of *512chapter 846 of the Pamphlet Laws of this State. People v. Crilley, 20 Barb. 248; State v. Moore, 5 Blackf. 118; Nevin v. Ladue, 3 Denio 437; Commonwealth v. Markoe, 17 Pick. 465; Commonwealth v. Jordan, 18 Pick. 228; Commonwealth v. Thayer, 5 Met. 246. But what is sold as ale may be so mixed with spirituous liquor as to fall within the meaning of that statue which prohibited the sale of “ any wine or spirituous liquor, mixed or unmixed,” &c.; and where that is the fact it may be shown by evidence. Commonwealth v. Bathnick, 6 Cush. 247; Commonwealth v. White, 10 Met. 14; State v. Wall, 34 Me. 165.

The case is to he discharged.