
    Elizabeth Burley versus Gordon Burley.
    
      \ii action, qiri ta?n, where parí of the penalty gocá ío Üie county, cannot be released lijf* the phiMiff without leave of the court and the ss-ent uf the county attorney.
    This was an action of debt, brought by the plaintiff, who sued, as well for the county of Grafton as for herself, to recover a penalty, alleged to have been incurred by the defendant, in taking illegal interest apon a loan of money.
    The defendant, at November term., 1831, pleaded in bar a release of the action, made by the plaintiff since the commencement of the suit, to wit, on the 20th October, 1831.
    To this plea there was a general demurrer, and join-der in demurrer.
    
      Kimball and Bartlett., for the plaintiff.
    
      Bell and Quincy, for the defendant.
   By the court.

The demurrer, in this case, is well taken. An action, qui iam, like this, where part of the penalty goes to the county, cannot be released by the plaintiff, nor in any way compounded without the leave of the court and the assent of the county attorney, who, notwithstanding any adjustment made by the parties, has a right to proceed with the cause until the penalty is paid. Buller’s N. P. 196; 9 Johns. 251, Bradway v. Le Worthey; 11 ditto, 474, Menton v. Woodworth; 1 Wilson, 79, Howell v. Morris; 2 Johns. 405, Haskins v. Newcomb; 1 Taunton, 103, Howard v. Sowerby; 2 ditto, 213, Lee v. Cass; 9 Pick. 44, Raynham v. Rounseville; 10 Johns. 118, Casswell v. Allen; 1 B. & P. 18, Crowder v. Wagstaff.

Plea adjudged bad. 
      
      Parker, J. having been of counsel, did not sit.
      
     