afterward drew up the opinion of the Court. r'ght of the town to one half of the penalty is given only where the same shall be recovered on indictment, or in an action, as provided by St. 1819, c. 133, § 4. If there be no judgment of court, there is no right in the town. In the case before us there was no judgment, but the action was entered neither party without any leave of court therefor. Even if the whole penalty were paid, it would be no bar to another prosecution for the same offence, by any other informer, for the use of the town and himself. Actions of qui tarn cannot be compromised without leave of court, upon suggestion of matter which entitles the defendant to indulgence. If they are other wise compromised, the defendant is left still liable to the penalty ; as appears by the authorities cited.1

A new trial is therefore granted at the bar of this Court.