1. The evidence of a former conviction was insufficient. In the first place, the conviction ought to have been drawn up and produced in the form prescribed by the 25 dollar act, of 1808. (31 sess. c. 204.) The act prescribes a specific form of conviction, to be drawn up by the magistrate, in this particular case of offences against the tavern act; and then it adds, that *103"every such conviction may be pleaded in bar, to any other prosecution, iór the same offence." When the law prescribes a particular form in such cases, it must ~be pursued, otherwise it does not afford the requisite legal evidence of a conviction.
2. But if the conviction had been certified in due form, it would not have availed, because it was founded on a suit commenced subsequent to that of the plaintiff. The person who first commences a qui tam, or popular action, attaches a right in himself which no other common informer, by a subsequent suit, can devest; and he may demur to a plea of a recovery in such subsequent suit. (2 Lev. 141. Hutchinson v. Thomas. Stra. 1169. Jackson v. Gisling. 3 Burr. 1423. Combe v. Pitt. 1 Black. Rep. S. C. 2 Black. Com. 437. 3 Black. Com. 160.) Though the statute* (Laws, vol. 1. 490.) says, that a° recovery for a penalty incurred by selling spirituous liquors without license, shall be a bar to all prosecutions for offences committed before such recovery; yet this must be understood of a recovery in a suit which had been first commenced. The statute is not to be construed, so as to work a destruction of a right previously attached.
The judgment must be reversed.
Judgment reversed.
24 5653. C. 164. 3. 18.