#### The Inhabitants of Raynham *versus*Gamaliel Rounseville.

A statute gave a penalty to be recovered by a *qui tam*action, one half to the use of the prosecutor, and the other half to the use of the town. A person having brought such an action, afterwards compromised it by receiving a sum of money of the defendant and having the action entered *neitker party*on the docket. *Held,*that the town could not maintain assumpsit against the plaintiff in the *qui tam*suit to recover a part of the money received by him.

The settlement of the *qui tam*action being made without the leave of the court, is no bar to another action for the same penalty.

Assumpsit for $25 money had and received.

At the trial of the case, before *Cummins*J., in the Court of Common Pleas, the plaintiffs proved that an action was brought in the defendant’s name against Benjamin Dean, James Dean, and Jacob A. Thomas, to recover a penalty of *$*50, for a violation of the 4th section of the *St.*1819, c. 133, regulating fishing in Taunton Great River ; which action was sued as well for the inhabitants of Raynham as for the present defendant. That action was disposed of by an entry of “ *neither party*” on the docket.

The plaintiffs also offered in evidence a receipt signed by the defendant, to show that while the action was pending in Court, it was settled by the parties, and that the defendant received the penalty.

The defendant objected that the plaintiffs were not entitled - to recover on this evidence, as no judgment was recovered in the *qui tam*action; but the judge overruled the objection, and instructed the jury that the plaintiffs were entitled to recover.

The defendant offered to prove that the *qui tam*action, which was brought in his name, was brought for the sole benefit of Seth Eaton and Silvanus Hinckley, and that it was prosecuted and settled by them, and that they received the money from J. Dean and others, and that the settlement which was made, also compromised another action to which Eaton dnd Hinckley were parties ; and that the receipt given by the present defendant was merely to satisfy the receiptor of property attached in the *qui tam*action that it had been settled. But this evidence was rejected by the judge.

*46The jury having found a verdict for the plaintiffs, the defendant filed a bill of exceptions.

The fourth section of the statute in question provides, that ihe penalty is “to be recovered by indictment or information,” “ or by action of debt, one half thereof,” after deducting expenses, to the use of the prosecutor, “ and the other half to the use of the town.”

*H. Cushman*and *Stevens,*for the defendant,

contended that the plaintiffs could not maintain this action, as no judgment was recovered in the *qui tarn*action, *Haskins*v. *Newcomb, 2*Johns. R. 405; *Weston*v. *Withers, 2*T. R. 511, note; 1 Bac. Abr. *Action Qui Tam, G;*Davis’s Justice, 334 *Brinley*v. *Whiting,*5 Pick. 348.

*W.*Baylies, for the plaintiffs,

cited *Caswell*v. *Allen,*10 Johns. R. 118.

Parker C. J.

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.

1

 See *Burley*v. Burley, 6 N. Hamp. R. 200, and cases cited; *Minton*v Woodworth, 11 Johns. R. 474 ; *Haskins*v. Newcomb, 2 Johns. R. 405