A  common  informer  cannot  sue  for  a  penalty,  unless  such  power
is  given  by  statute.  Sev>ard  v.  Beach,  29  Barb.  239.  A  party  who
first  commences  an  action  to  recover  a  penalty  acquires  an  interest
in  the  penalty,  which  cannot  be  divested  by  any  subsequent  suit
brought  by  any  other  common  informer,  though  the  latter  be  first
prosecuted  to  judgment.  Beadleston  v.  Sprague,  6  Johns.  101.  A
corporation  cannot  sue  for  penalties  under  a  statute  wliich  provides
for  suits  by  any  person  in  his  own  name.  Ancient  City  Sportsmen
Club  v.  Miller,  7  Laas.  412.     See  32  How.  89.
§  1895.  The  summons  in  an  action,  brought  as  prescribed  in  the  last  section,
can  be  served  only  by  an  officer,  authorized  by  law  to  collect  an  execution,  issued
out  of  the  same  court.  The  summons,  when  issued,  cannot  be  countermanded
by  the  plaintiff,  before  the  service  thereof;  and,  immediately  after  it  has  been
served,  the  officer,  who  served  it,  must  file  it,  with  his  certificate  of  service,  in
the  office  of  the  clerk,  or  deliver  it,  with  a  like  certificate,  to  the  magistrate  by
whom  it  was  issued;  as  the  case  requires.
A  discontinuance  is  not  a  compounding  of  a  penalty  within  the
statute.  Haskins  v.  Newcomh,  2  Johns.  405.  It  is  in  the  discre-
tion of  the  court  to  grant  leave  to  compound  the  action  upon  terms.
Caswell  V.  Allen,  10  Johns.  118.  The  plaintiff  may  discharge  the
judgment  by  receiving  the  amount  of  the  penalty,  but  not  as  to  the
people's  moiety  without  actual  payment.  Caswell  v.  Allen,  10
Johns.  118;  Minton  v.   Woodwoiih,  11  id.  474.
