
    Haskins, qui tam. &c. against Newcomb.
    N. brought an actionqui tarn, against H. to recover the penalties under the tavern fore pleaded, greed*1 with" the defendant the'suitf'and arulewaseh-tered for that purpose, and paMfivtTdol-lars for costs, brought an action qui lam. against N. on the “act to re-dersV common informers,” S¡c. for sirT'^and”" i pouncüng0™1 popular ao-ti0DV a,n,d(iit, was held, that the discontinuing of a popular action is no offence within the act; the compounding a popular action, means a composition for the offence, and the discontinuance and payment of costs is neither a composition nor receiving* money under the colour of the
    Tins was an action of debt, for the •penalty of 100 dol- , , . , ,. , , lars, under the act to redress disorders by common informers. The declaration stated, that the defendant on the 11th October, 1804, at Troy, commenced an action popular, or suit, in the court of common pleas, for the county of Rensselaer, against the plaintiff, to recover ^ie Pena^>es imposed upon those who sell by retail, spirituous liquors, contrary to the act, &c. That the act of 60b February, 1788, to redress disorders by common informers, declares, that “no informer or plaintiffs . . in any popular action shall compound OR agree with a»y person who shall offend, or be surmised to have of-, fended against any penal statute, for suen offence, committed, or pretended tobe committed, but aft r iraur made in.court to the suit, and by the order or consent of the . > j j court, and that “ if any person shall offend, in making of composition, &c. contrary to this statute, or should by colour or pretence of process, make any COMPOSITION, or take any money, Reward, OR promise of reward, for himself or to the use of any other, without the order ■or consent of some court of record, that then he shall, for every such offence, forfeit and loose 100 dollars, the half to the people, and the other to the party aggrieved thereby.” The plaintiff averred that the defendant afterwards on the 22d day of May 1805, at Troy, &c. without the order or consent of th said court.of common pipas, the aforesaid popular action commenced as aforesaid, by the defendant, against the plaintiff, in consideration of 5 dollars, paid by the defendant in that action, to and for the plaintiff in that action, did compromise, compound, and discontinue, and thereby forfeited the said 100 dollars, whereby an action had accrued, &c.
    The defendant pleaded the general issue; and upon the trial, the plaintiff proved that a suit was commenced by the defendant in the said court of common pleas, against the plaintiff to recover the penalties created by the statute, entitled “an act to lay a duty on strong and spirituous liquors;” and that while the suit was pending, and before plea pleaded, the defendant signed a paper, dated May 21st, 1805, in which he agreed, that if the now plaintiff would pay the costs accrued, that he would not further prosecute the suit, but the same should be discontinued; that on the 22d May, the attorney of the present defendant, signed a receipt that he had received of the present plaintiff, his costs in that-suit. The pla intiff further proved, that the sum paid by him, as a con sideration for discontinuing the suit, was five dollars, which was applied to the payment of the costs; and that no further proceeding was thereafter had in the suit.
    The defendant, to show that the cause was regularly discontinued, offered in evidence the common rule book of the court of common pleas, by which it appeared, that on the 22d day of May, 1805, a rule was entered in the cause that the then plaintiff having settled with the then 1 f defendant, on motion of the plaintiff’s attorney, it was or-¿jere(} that the cause be discontinued without costs. This testimony the judge excluded, on the ground that the defendant ought to show, that an application had actually been made to the court, for leave to discontinue. The defendant then offered to prove, that at the time the rule was entered, it was agreed between the attorneys of both parties, that the rule should be entered ; that it was done bona fide, and by the advice of the counsel for both parties, and that the present defendant instructed his attorney to make a regular settlement of the cause, in such way as to conform to the act. This testimony was also excluded, anda verdict taken for the plaintiff, subject to the opinion of the court.
    
      Foot, for the plaintiff.
    The fact charged in the plaintiff’s declaration is within the • spirit and intent, if not within the words of the act. It is immaterial what sum. was paid, or in what manner it was applied, if it was to the use of the plaintiff in the popular action. The plaintiff had no right to discontinue without the order or consent of the court.
    
      Van Vechten, contra.
    This is a penal action, and the plaintiff ought to make out a clear case. The offence charged in the declaration, is the compounding an action, and is founded on the first clause of the 8th section. The other part of the section allows of a discontinuance, but subjects the plaintiff to the payment of costs, which is the only penalty. The 9th section of the act, which declares the penalty of 100 dollars, relates only to a composition, and has no reference whatever to a discontinuance. The provisions of the act are distinct, and the penalty for discontinuing is wholly different from that for compounding a popular action. The evidence of a discontinuance could not support a charge for compounding an action.
    
      Foot, in reply.
    If the payment of costs were the only penalty for a discontinuance, why were not plaintiffs ex- , i J ^ cepted, as well as the clerks of the court, from the penalty in the 9th section? Here was an agreement or composition between the parties, and the defendant was to pay five dollars. The entering the discontinuance was a subsequent act, distinct from the composition or agreement.
    
      
       1 Z.JV.r. Kfo.
    
   Kent, Ch. J.

This suit is brought by the party aggrieved, for an offence alleged to have been committed against the act to redress disorders by common informers, That statute gives a penalty of 100 dollars, to the party aggrieved, against the plaintiff in a popular action, who shall, without the order or consent of the court, compound or agree with the offender for the offence alleged to be committed.

The offence, then, consists in compounding with the offender for the offence charged; and when the subsequent section of the act declares it to be penal for the prosecutor to make any composition, or take any money, reward, or promise thereof, for himself or to the use of any other, it must still all refer to the composition prohibited by the statute, and defined in the preceding section, and which is a composition for the offence. The money or reward must be taken upon colour or pretence of the offence. The meaning of the word composition in the statute, must be the adjustment of the demand, by a payment of part in satisfaction of the whole. To compound a debt is to abate a part, on receiving the residue. To abandon the whole, cannot, in any grammatical or common use of the word, be said, or considered to be a composition with the debtor It is in this sense that Mr. JBlachstone understood the word, (4 Com. 136.) when he spoke of the offence of compounding of informations upon penal statutes, as being of an equivalent nature with champerty, which is a corrupt agreement to divide the profits of a law suit. The voluntary discontinuance of a popular action is no offence. it on]y subjects the party to the payment of costs. It is 110 bar to another action of the same offence, and, consc-quently, it has no reference whatever to the offence of compounding with the offender for the offence charged. The proof in the present cáse, in support of the action, was, that the defendant discontinued the popular action, on payment of costs, without leave of the court, and the , , r. . , question is, whether the payment or the costs be a compo-silion for the offence, or money or reward under colour of the offence1? In my apprehension, it has no connexion with the offence. The offence was left totally uncompounded, and exposed to a fresh prosecution. The present transaction showed nothing corrupt on the part ofthe present defendant; and, in fact, it was an arraignment between the attorneys on each side, without any intent in the defendant to do any thing against the statute. To exact the penalty on such a transaction would be highly unjust and oppressive. Whether the agreement to pay the costs was or was not valid, since the statute says that the plaintiff'in a popular action shall not discontinue without paying costs, is another question, not arising in the present case. It is sufficient to say, that the agreement to pay the costs upon a discontinuance, was not a composition for the offence, and so notan act for which the present penalty can be demanded. I am, therefore, of opinion, that a judgment of nonsuit must be entered.

Spencer J. and Van Ness, J. concurred.

Thompson J. not having heard the argument, gave no opinion.

Judgment of nonsuit». 
      
      
         5SZJLnonsuU in a popular action is no bar toancui suitby the °
      
     
      
       It is in the discretion of the court under the statute to allow an informer or plaintiff in a popular action or a penal statute to compound upon such terms as they think fit; and it is a general rule, in the exercise of this discretion to require as one ofthe terms of granting leave to compound, the moiety of the penalty given to the people to be paid, unless under special circumstances, when leave to discontinue on payment of the costs only will be granted. Bradway, q. t. Le Worthy, 9 John. Rep. 251
     