
    Caswell, qui tam., &c. against Allen.
    ALBANY,
    Jan. 1813.
    Where a statute penalty, the whereof,ety ered” to^be treasury0 of16 the state, and moiety to go of the person prosecuting the same teffect; it was held that a payment of the person° prosecuting, would discharge the dethedanpiaintiff to discharge the judgment, or compound with the deim^ieave^of the court. Where a statute inflicted
    THIS was an action brought by the plaintiff, who sued as well for himself as the people, &c. against the defendant, as supervisor of the town of Scipio, to recover the penalty of 250 dollars, under the act passed 20th March, 1807. (Sess. 30. c. 43.) The pla¡ní'ff having recovered judgment for the penalty, the defend-ant paid to him, on the 11th February, 1812, the amount of the judgment and costs, and took a release and discharge in full, under seal, for the same. On the 21st December last, a ca. sa. was issued on the judgment, by virtue of which the defendant was rested by the sheriff,
    
      Sedgwick, for the defendant,
    now moved to set aside the ca. sa. 0n an affidavit of the above facts, which were not denied.
    
      Spencer, contra,
    objected that the plaintiff had no right to re-*ease ^ie defendant and discharge the suit, without the leave of the court,
   Per Curiam.

The plaintiff had no right to discharge the judgment or compound with the defendant, without leave of the court. (Sess. 11. c. 9. s. 7. 1 Bos. & Pull. 18. Stra. 167.) But the plaintiff had a right to receive payment of the judgment, and discharge it; the statute providing (sess. 30. c. 43.) that any person might prosecute the action for the penalty, and that one moiety should belong to him, and the other moiety, when recovered, should be paid into the treasury of the state. The plaintiff was trustee for a moiety of the judgment, and a payment to him would discharge the defendant.

Motion denied.  