
    Almond M. Nichols, qui tam, versus Jesse Squire. Same versus Same.
    Where a statute imposes a new penalty for an offence, it repeals by implication so much of a former statute as established a different penalty.
    The St. 1785, c. 24, respecting lotteries, was repealed by St. 1817, c. 191, and this last was likewise repealed by St. 1822, c. 90.
    A declaration upon a penal statute, alleging that by force of the statute an action had accrued, but not alleging that the offence has been committed contra formam statuti, is insufficient.
    The qui tam action was on the 1st and 3d sections of St. 1785, c. 24, for the suppression of lotteries. The first count was for disposing, by way of lottery, of a wagon belonging to one Bunker.
    The other action was debt upon St. 1817, c. 191, § 1, 5. The plaintiff alleged in the first count, that the defendant unlawfully sold to one Millard “ a ticket, or paper purporting to be the number of a ticket, in a lottery then and there unlawfully set up by the said Jesse, the same lottery not having been granted or permitted by this commonwealth, whereby and by force of the statute in such case made and provided, the said Jesse has forfeited for his said offence a sum not less than fifty dollars and not exceeding five thousand dollars, and thereby, and by force of the statute in such case made and provided, an action hath accrued to the said Almond, who sues as aforesaid, to demand, sue for and recover from the said Jesse the money so forfeited as aforesaid.” The declaration contained two other counts, in which the statute was referred to in the same manner as in the count recited.
    These cases were tried before Wilde J., who reported the evidence. If the plaintiff could maintain either or both actions, judgment was to be rendered in his favor for such sum as by law he was entitled to recover ; but otherwise he was to become nonsuit.
    
      Dwight and Byington, for the defendant,
    contended that the statute of 1785 was repealed by the statute of 1817, and this also was repealed by St. 1822, c. 90. Ellis v. Paige, 1 Pick. 45 ; Rex v. Cator, 4 Burr. 2026 ; Rex v. Davis, 1 Leach, 306:—and that the counts in the action on the statute of 1817 were insufficient, for want of the technical allegation that the offence was committed contra formam statuti. 2 Hawk. P. C c. 25, § 116 ; Peabody v. Hayt, 10 Mass. R. 36 ; Commonwealth v. Springfield, 7 Mass. R. 9 ; Commonwealth v. Stockbridge, 11 Mass. R. 279 ; Lee v. Clarke, 2 East, 333.
    
      Whiting and C. A. Dewey, contra,
    
    said that the statute of 1785, so far as it prohibits the disposal of any estate by way of lottery, was not in pari materie with the subsequent statutes, and it remained unrepealed. 6 Bac. Abr. 373, Statute, D; Rex v. Jackson, Cowp. 297 ; 2 Atk. 675 ; Warder v. Arell, 2 Wash. 296 ; Pearce v. Atwood, 13 Mass. R. 324 ; Commonwealth v. Macomber, 3 Mass. R. 257. In regard to the other objection they cited Barkhamstead v. Parsons, 3 Connect. R. 1.
   Per Curiam.

We think that the statute of 1785, c. 24, upon which the qui tarn action is founded, is repealed, i“ not by St. 1800, c. 57, (which seems to have a different object in view,) yet certainly by St. 1817, c. 191, which appears to cover the whole subject matter of the statute of 1785. By the statute of 1817 the selling of tickets in any vltery not granted or permitted by this commonwealth, js prohibited under a new penalty ; and where the legislature impose a second penalty for an offence, whether smaller or larger than the former one, a party cannot be allowed to sue on one or the other at his option. This point of a repeal by implication is supported by authority. In the case of Bartlett v. King, 12 Mass. R. 537, an exceedingly useful statute, passed in 1754, concerning donations and bequests to pious and charitable uses, was held not to be in force, the legislature having in 1785 legislated upon the same subject and omitted to reenact the provisions of that statute. This view of the case settles the first action against the plaintiff.

The second action is upon the statute of 1817. It is objected that the several counts do not conclude contra formam statuti. It may be thought hard that a technical objection of this sort should be fatal, where the declaration refers so pointedly to the statute as the foundation of the action ; and if the question were new, perhaps courts would give less weight to the objection. We find a case however in our early reports precisely like this, where the objection was sustained. S o in 2 East, 3o3. And as all penal actions partake of the nature of a criminal prosecution for an offence, it may be good policy to require strictness in the proceedings. But it is not necessary to rely on this point, for we are of opinion that the statute of 1817 is repealed by St. 1822, c. 90, by which no action is given. The legislature, in order to put a stop to the selling of lottery tickets, have gone on increasing the penalties, without effecting their object, until lately, by St. 1825, c. 184, they have reduced them, and altered the mode of prosecution, and the prohibition is attended with better success. The process now is by indictment or information ; and we presume that is generally understood to be the proper remedy, for among the many attempts in the county of Suffolk to prevent the selling of

.ottery tickets, there has been no instance of an action being brought.

Plaintiff nonsuit in both actions. 
      
       Dwarris on Stat. 673.
     
      
       See 1 Chitty on Crim. Law, (3d Amer. ed.) 290, n. (74). It is now enacted by the Revised Statutes, that the omission of the conclusion, contra formam statuti, shall not vitiate an indictment. C, 137, § 14.
     
      
       See Revised Stat. c. 132
     