This action is quite distinguishable from a qui tarn. That is a well established remedy, known to and regu lated by the common law, as a mode of securing the execution of penal laws, where it is expressly given by statute, and has its own rules. But it can be used only in cases where it is expressly given. Colburn v. Swett, 1 Met. 232.

Even in a strictly technical qui tain action, we suppose the suit, that particular suit, is under the direction and control of the plaintiff who brings it, and he may abandon or discontinue it; but it is with this qualification, that if discontinued or non-suited without the authority and permission of the court, the case will stand as if no action had been brought, and will not bar another suit for the same penalty, brought by any other party entitled to sue for such penalty.

But the statute, giving the penalty sued for in this case, is precise and explicit, in directing that the amount forfeited is “ to be recovered by the treasurer of the city or town in which such shareholder may reside; one half to the use of the town, and the other half for the use of the person furnishing the necessary evidence in the case.” It is perfectly clear therefore, and this rule is not ’ denied by the petitioner, that no other person but the treasurer of the city of Worcester could sue for this penalty. As this power is vested in a high officer of the municipality, for whose special benefit the law was made, and as he is to recover no part of the penalty to his own use, it may be a question whether, in prosecuting for such penalty, he would be bound by the lawful orders and directions of the municipal government, whose officer he is; but that is not a question arising here. We are all of opinion that, except so far as he may be bound to act under such orders and directions of the city government, or is disposed to exercise his discretionary power, in subordination to such directions, not only the right to institute such suit is vested in such treasurer, but the right to prosecute and discontinue it.

The petitioner having, as he says, an interest in the penalty, for which alone the treasurer of Worcester can sue, contends that his case is analogous to that of the assignee of a chose in *543action, who, without other authority, may sue in the name of the legal creditor, and whose right will be recognized by the court before which the action is brought, and be protected against the interference of the assignor. But the analogy does not hold; such an assignment is a power to collect and sue for the debt, and, when recovered, to hold it to his own use, and such a power, being coupled with an interest, is irrevocable.

Besides, if the analogy would hold, the petitioner, if no action were voluntarily brought by the treasurer, might bring an action in the name of the treasurer, on the ground of having furnished the necessary evidence. If he might, any other person might, with an averment that he had furnished such necessary evidence. And we do not perceive why the right and power of the treasurer to prosecute his own suit, in such time and manner as his own judgment may dictate, would be suspended or taken away. Such, in our judgment, is not an admissible construction of the statute. Nor are we aware of any mode by which the treasurer would have been judicially required, against his own determination, to commence a suit for such penalty, for the benefit or at the instance of this petitioner. The right of the petitioner does not arise until some penalty has been recovered. It appears to us clear, that if the petitioner could not legally have required the city treasurer to commence a suit for his benefit, he cannot now ask the aid of the court, to permit him to take the prosecution of the suit out of the hands of the officer in whom the law has placed it, and conduct it himself, though he might, in fact, have a right to claim part of the penalty, when recovered. On these considerations, we concur with the superior court, that this petition cannot be granted.

Exceptions overruled, and petition dismissed.