This is an indictment under R. S., c. 27, § 20, which provides that “no person shall travel from town to town or from place to place in any city, town or plantation in this state, on foot or by any kind of land or water, public or private conveyance whatever, carrying for sale or offering for sale, or offering to obtain or obtaining orders for the sale or delivery of any spirituous, intoxicating or fermented liquors, in any quantity, under a penalty of not less than twenty nor more than a hundred dollars, for each offer to take an order, and for each order taken, and for each sale so made, to be collected on complaint or by indictment before any court competent to try the same ; one-half of said fine to go to the complainant, and the other half to the county in which the offence is committed.”
The indictment does not contain the name of any complainant, and for this cause the defendant after verdict has filed a motion in arrest of judgment.
The penalty provided by this section is-to be recovered either by complaint or indictment. If by complaint, half goes to the complainant. If there be no complainant, the party violating the law is none the less guilty; none the less liable to its punishment. The defendant by the verdict has violated the law and is liable to its penalty. It is no concern of his how the penalty is appropriated. He is in no way responsible hereafter for the disposition to be made of it when collected. Indeed it is not necessary to set forth the penalty, or how it should be appropriated. State v. Cottle, 15 Maine, 473. Where the statute inflicts a penalty partly to the use of the state and partly to that of an informer, the government may sue for the whole. Com. v. Howard, 13 Mass., 221.
If there had been a complaint made upon which judgment had *426been rendered against the defendant that would have been a good bar to these proceedings. Where a statute creates a penalty and says that one moiety shall be to the use of the king, he may sue for the whole, unless a common informer has commenced a qui tam suit for the penalty. King v. Hymen, 7 D. & E., 536. He who first commences a qui tam suit acquires a right in the penalty which cannot be divested by a subsequent suit, though judgment be first recovered in the second suit. Pike v. Madbury, 12 N. H., 263. But in this case it is neither alleged nor proved that there has been any previous complaint, or that there is any danger that the defendant will be compelled to pay a double penalty.
The case of State v. Grand Trunk Railway, 60 Maine, 145, is inapplicable. There the forfeiture was wholly to the use of the widow or children, or heirs, and no part of it accrued to the state. There could be no forfeiture, if there were no one for whose benefit' it was intended. In the case, before us there is a penalty, which may be recovered, whether there is a complainant seeking for his moiety or not. If no complainant, the whole goes.to the county; but whatever becomes of it, the defendant has nothing to do with its disposition. Exceptions overruled.
Walton, Diokerson, Barrows and Llbbey, JJ., concurred.