
    The Commonwealth versus Samuel Cheney.
    A justice of the peace cannot hold one to bail for an offence which may, by law, be prosecuted by information qui tam, as well as by indictment
    This was a scire facias, sued upon a recognizance entered into by the defendant, before a justice of the peace for the county of Suffolk, conditioned for his appearance before the next Municipal Court to be holden in Boston, to answer to the commonwealth, for selling mixed liquors, part thereof being spirituous, without being duly licensed. The defendant demurred generally to the declaration, and the demurrer was joined on behalf of the commonwealth.
    Several exceptions were taken by the counsel for the defendant; and particularly that the justice had no authority to compel him to recognize for his appearance to answer for the offence described.
    
      [ * 348 ] * It was said by the counsel for the commonwealth, that the offence described is created by the statute of 1786, c. 68, in which it is enacted that, if any person shall sell any mixed liquors, part of which is spirituous, without license, he shall forfeit for each offence a sum not exceeding six, nor less than two pounds, one half to the informer, the other half to the county, unless the offence is prosecuted by the grand jury, when the whole forfeiture shall be for the use of the county.
    By the statute of 1783, c. 51, justices of the peace are directed to hold to bail all persons guilty, or suspected to be guilty, of offences of which they have not cognizance, capital offences and manslaughter excepted, and to take cognizance of, or examine into all other crimes, matters, and offences, which by particular laws are put within their jurisdiction. And- from these several provisions it was argued that the selling mixed liquors, part of which is spirituous, without a license, being an offence, and as the forfeiture may exceed the sum to which the jurisdiction of a justice is limited, v it is not an offence cognizable by him; it was therefore within his authority and duty to hold the defendant to bail, if guilty, or suspected to be guilty, of such offence.
   Parsons, C. J.

The reasoning of the counsel for the commonwealth would be conclusive, if the statute creating the offence liad not so appropriated the forfeiture, and prescribed the mode of recovering it, as by necessary implication to exclude this offence.

The offender may be prosecuted either by indictment or by an information qui tam; and whichever prosecution is first commenced, to that shall the offender answer, and he is not liable to answer afterwards to the other. The prosecution by information is commenced by the filing of the information, and the prosecution by indictment is commenced by the finding of the indictment. But no man is liable to imprisonment, or to find bail to answer to the commonwealth, unless, when he shall appear to answer, the commonwealth shall have an indefeasible right to prosecute [*349] *him. If the law were not so, a man accused might suffer imprisonment for months, and yet eventually could not be holden to answer.

This principle applies to the case before us. If this offence should be supposed to be within the statute of 1783, as one of the lower offences there contemplated, then, when the defendant had recognized, or been imprisoned for want of sureties, a common informer might afterwards have filed his information, and defeated the commonwealth of its right to compel the defendant to answer to an indictment found after the filing of the information.

An information might also have been filed before the complaint was made to the justice; and as process might not have been served, neither the justice nor the defendant could regularly have any knowledge of it; and the justice might have proceeded to imprison the defendant for want of sureties, when no prosecution could have been had by the commonwealth.

Bidwell, attorney-general, and J. T. Austin, for the commonwealth.

Richardson and Whiting for the defendant.

We are, therefore, satisfied that the statute of 1783 cannot comprehend offences which may be prosecuted as well by action or information qui tarn as by indictment, and when the regular cornmencement of the qui tarn prosecution will defeat a prosecution by indictment subsequently commenced. For this reason, the demurrer must prevail, and judgment be entered that the common wealth take nothing by this writ.  