Commonwealth v. Newell , 71 Mass. 76 ( 1855 )

Metcalf, J.

1. We are of opinion that the complaint on which, by St. 1852, c. 322, § 8, the forfeiture for unlawful single sales of liquor may be recovered is a complaint in a criminal process, and should, of course, be in the usual form of complaints in such process. This has been the uniform practice under that statute, and we have rendered many judgments on such complaints.

2. We are also of opinion that such complaints need not purport to be, nor in fact be, made in behalf of any town. The statute gives the forfeiture to the town where the convicted •party resides, whenever it is sought by action of debt or by complaint; though the forfeiture would go to the Commonwealth if it were recovered by indictment. Taunton v. Sproat, 2 Gray, 429. The case is not like those in which a statute authorizes a qui tarn information or action, or a popular action, and gives part of the penalty or damages to him who may prosecute therefor, and the remainder to the Commonwealth, or to some corporation or individual. In such cases, the process should doubtless show, on its face, who is entitled to the fruits of the process. See Commonwealth v. Baker, 2 Gray, 79. It is entirely different in a case like this, where the penalty, when recovered, can go only to a certain town, whoever may complain, or m whose behalf soever the complaint may be made.

Exceptions overruled.