There was a mistrial in both these cases, and the exceptions in both are to be sustained. The defendant filed, in both, a plea of former conviction, in the short form authorized by St. 1864, c. 250, § 4, and also a plea of not guilty. This last plea was an unnecessary and unusual addition to the first; Commonwealth v. Goddard, 13 Mass. 455; and he ought not to have been tried on it before the first had been regularly put in issue and decided against him. And such is also the law when former acquittal is pleaded. The two issues of former conviction or former acquittal and not guilty are distinct, and both cannot rightly be submitted to a jury at the same time. Charging them with- both issues at once,” said the English *547judges, “ would lead to this absurdity, that they would be obliged to find upon both; and yet if the first finding was for the prisoner, they could not go to the second, because that finding would be a bar.” The King v. Roche, 1 Leach, (4th ed.) 135. Former acquittal or conviction must be specially pleaded, and is not admissible under the general issue of not guilty. Archb. Crim. Pl. (13th ed.) 117, & seq. State v. Barnes, 32 Maine, 534. And issue should be taken on such plea, either in law or to the country, and be regularly tried by the court or by the jury, and the decision thereon be made a matter of record. And such has been the practice in this commonwealth. See 13 Mass. 245, 455 ; 11 Pick. 134; 12 Pick. 496 ; 17 Pick. 395 ; 12 Met. 387; 8 Gray, 470. It is said, however, that evidence of such conviction has, of late years, been received on the trial of the general issue, upon the defendant’s motion, and by consent of the Commonwealth’s counsel; and we find that this seems to have been so in Commonwealth v. Loud, 3 Met. 328, and Commonwealth v. Bubser, 14 Gray, 83. We presume that this practice was resorted to for the purpose of saving the labor of counsel in preparing the proper pleadings. And if this course was permitted by the court, the parties who agreed to it were bound by the result. As the St. of 1864, c. 250, authorizes a plea that requires no labor, we trust that this practice will be discontinued.
This defendant was called to trial before the jury on the in - dictments and his two pleas thereto, and was required, against his objection, to give evidence in support of his special plea, though there was no issue thereon; and the judge, on hearing that evidence, ruled that it did not support the plea, and thereupon ordered that the trial proceed on the plea of not guilty. The judge treated the special plea as if it were before him on demurrer and joinder.
The argument for the Commonwealth is, that the defendant has not been injured, inasmuch as neither of the records, which he produced and offered in proof of his special pleas, showed a former conviction of the same offence for which he was then on trial; it having been decided that the charge of being a *548common seller of intoxicating liquors, during a specified time, and the charge of keeping and maintaining a tenement for the illegal sale or illegal keeping of such liquors, during the same time, are not the same, and that a party is punishable for each. Commonwealth v. Bubser, 14 Gray, 83. Commonwealth v. Cutler, decided in 1864, and not yet reported. But the defendant had a right to a trial of his special pleas according to legal rules, and, as he did not waive that right, a majority of the court are of opinion that he has suffered a legal injury by being deprived of such trial. The objection is not that the judge made a wrong decision as to the sufficiency of the plea in bar, but that he had no authority to make any.
In England a prisoner may be allowed to plead former ac quittai or conviction ore terns. But his plea is recorded by the clerk of arraigns, who replies thereto in behalf of the crown. It is therefore tried on an issue. The King v. Coogan, 1 Leach, (4th ed.) 448. Champneys’ Case, 2 Lewin C. C. 53, 54. Rex v. Bowman C. & P. 339.
Exceptions sustained, and new trials granted.