
    Commonwealth, at the Suit of Joseph Howard and Another, Plaintiffs in Error.
    A statute had created an offence, to be prosecuted by bill, indictment, or information, the penalty to accrue, two thirds to the Commonwealth, and one third to the informer; and an information was filed by the Attorney-General ex officio, demanding the whole penalty for the Commonwealth; upon which judgment was rendered for two thirds of the penalty to the use of the Commonwealth, and one third to A. B., as informer.
    Dn error by the original defendants, the Court reversed the part of the judgment which gave a portion of the penalty to the informer, and ordered judgment in favor of the Commonwealth for the whole.
    This was a writ of error, brought to procure the reversal of a judgment heretofore rendered in this Court, in favor of the Commonwealth against these plaintiffs in error, upon an information filed by the Attorney-General, October term, 1814, against them and another person, for intruding upon lands of the Commonwealth in Brownfield, in the County of Oxford, and cutting down and carrying away sundry trees thereon growing. The information was made by the Attorney-General ex officio, pursuant to the statute of 1783, c. 22, and prayed the penalty to be adjudged to the Commonwealth, no common informer being named therein. One of the defendants was acquitted by the jury ; and the other two, who now bring this writ of error, being found guilty, judgment was rendered for the penalty provided by the statute, two thirds thereof for the use of the Commonweahh, and the other third for the use of Stephen Chase, as informer.
    
      Mellen, for the plaintiffs in error,
    contended, that the judgment was erroneous, inasmuch as it did not pursue the information. If an informer is to receive a part of the penalty, his name should be joined in the prosecution, *and the information should have proceeded accordingly. Mon constat that Chase was not the only witness at the trial whose evidence produced the conviction. Another reason why the informer should appear of record is, that, if he has released his share of the penalty, the defendants may plead this as a discharge pro tanto. 
      
    
    
      Davis (Solicitor-General), for the Commonwealth,
    argued, that, if the judgment was incorrect in the particular stated, it would be the duty of the Court to amend it. The information was filed, in the name of the Commonwealth, by the Attorney-General ex officio ; the conviction was pursuant to it; and thereupon the Commonwealth was entitled to the whole penalty. Where a statute gives part of a penalty to an informer, the government may still prosecute for the whole. 
    
    But, whether this judgment be wrong or not, it is nothing to these plaintiffs in error. They suffer no injury from it. They have forfeited the whole penalty ; and it is no concern of theirs, if the Commonwealth has chosen to give a part of it to Chase or any one else.
    
      
      
        Commomoea vs Frost, 5 Mass. Rep. 53. — Com Dig. Information, A 3. — Vin Abr. Actions, A. 4.
    
    
      
      
        Rex vs. Hymen, 7 D. & E. 536. — 2 Hawk. P. C. c. 25, § 20.
    
   Per Curiam.

We think the judgment erroneous ; but the infor mation is correct, and the conviction follows it. There is no question, that, where a statute inflicts a penalty, partly to the use of the Commonwealth, and partly to the use of an informer, the government may sue for the whole. So was the case here. The statute inflicts certain penalties for cutting trees of certain descriptions, “to be recovered by bill, indictment, or information, in any court of record in this Commonwealth proper to try the same ; two thirds thereof to the use of the Commonwealth, and one third thereof to the informer.” Had Chase, or any one else, commenced a prosecution qui tarn, before the Attorney-General had filed his information, the latter must have failed. But that was not the case here; and the Commonwealth was entitled to judgment for the whole penalty. The objection, then, does not apply to the merits. It amounts to no more than this, that the Court * has misappropriated a portion of the penally which these plaintiffs in error had legally incurred.

The judgment is erroneous in awarding any part of the penalty to Chase. For this cause it is reversed ; and a judgment is to be entered, instead of it, that the Commonwealth recover the whole penalty to its own use.  