#### THE STATE UPON THE RELATION OF HENRY GILES vs. JOHN H. HARDIE.

An adjudication of the County Court, that a particular person has been duly elected Sheriff of the County, and that he has the necessary qualification of a freehold of one hundred acres of land in 1'ee simple, is not a judgment in rem, binding upon all the world, but can at most only conclude the parties contesting the election, and cannot, therefore, operate as an estoppel to an information in the nature of a quo loarranto filed by the proper officer of the State against the Sheriff, alleging the want of such freehold qualification.

An information in the nature of a quo warranto brought to try the right to an office or franchise, though in form a criminal proceeding, is in the nature of a civil remedy, and is not therefore within the meaning of the 8th seetit n of the Bill of Rights, which declares that “ no freeman shall he put to answer any criminal charge but by indictment, presentment or impeachment.”

The act of 1838 “ concerning writs of quo warranto and mandamus,” (1 Rev. Stat. ch. 97) is not confined to contests between different claimants to offices and franchises; hut is intended to regulate the mode bv which all usurpations of offices and franchises may be examined and determined in the courts of justice. Hence, an information in the nature of a quo warranto may, with, leave of the court, be filed by the Attorney General or Solicitors for the State, in their respective circuits, against a sheriff, to enquire by what right he holds his office; and whether any person should be named as relator or not in such information, seems to be immaterial, as the information is that of the Attorney General or Solicitor of the State, and not of the relator.

Whether its appearing affirmatively that an information was filed with leave of the court be necessary or not, it will be sufficient if the proceedings of record show that it has the sanction of the court.

It is no objection to an information that the full title of the “ Solicitor for the State” is not given, and that the term “ Solicitor” only is used. But if it were an objection, it would be formal only, and could not avail the defendant on a demurrer to his plea.

At the March Term, 1839, of Rowan Superior Court, an information in the nature of a quo warranto was filed by James R. Dodge, Esq., the Solicitor for the State, in that circuit, giving the court to understand and be informed that John H. Hardie had used and exercised, and was then using and exercising the office of sheriff of said county without any warrant, and had usurped, and.„was then usurping the said office; and alleging especially that at the time of the election *43of the said John as sheriff of said county, he was not possessed of a freehold of one hundred acres of land in fee pie, and praying the advice of the court, and due process of law against the said John, to answer by what right he claimed to hold said office. Thereupon, by order of Court, process issued as prayed, returnable-to the September Term following, when the said John appeared and pleaded to the said information, first, that he was. duly elected sheriff of said county, on the 9th day of August, 1838, by a majority of the legal voters of said county;, and that he was seized of a freehold of one hundred acres of land in.fee,.as required by law; and, secondly, that at the August Term, 1838, of the County Court of Rowan, being the term immediately following the election of the respondent as sheriff of said county, the qualifications of the respondent to hold said office were contested; and thereupon it was by the said court, a majority of the justices of the county being present, adjudged that the respondent was seized of the freehold, and had all the other qualifications required by law of a sheriff; and" thereupon he was permitted by the said court to take the oaths and execute the' bonds required by law of a sheriff, and did take the oaths and execute the bonds accordingly. To this second plea the Solicitor, in behalf of the State, demurred generally, and the respondent having joined in demurrer, the same was argued at the March Term, 1840, of said court, before his honor Judge Settle, when the demurrer was sustained, and the respondent, by leave of the court, appealed from that judgment to. the Supreme Court.

Badger, for the defendant,

contended" that the whole proceeding ought to have been dismissed, because the defendant could not be called to answer the information:

1st. The act concerning writs of Quo Warranto and Man,damns, 1 Rev. Stat. eh. 97, though general in its terms, is not applicable to the office of sheriff.

2nd. If the office of sheriff be embraced in the act, or must be construed to be within its provisions, then the proceeding, being a criminal one, is prohibited by the 8th section of the Bill of Rights, and the Legislature had no right to pass the *44act. That the "proceeding is of a criminal nature, see 2 Hawk. PL Cro. ch. 26, sec. 16 — 1 Tremain’s Pleas, 253 — 6 Wentworth, 28 et seg. — Attorney General v. Utica InsuranCG (jonVpany} 3 John. Ch. Rep. 371.

3rd. The information is fatally defective, because it does not shew upon its face that it was filed by leave of the court. An information in Englandjdoesjnot shew this; but there is a reason for a difference there and here. There, the power to file an information is not given by statute, but is only regulated by it; but, in this State, the power is given by the statute, and none exists in the Solicitor without it.

4th. The information is fptally defective in form and substance. See 6 Wentworth’s Pleas, 28, for a proper form.

5th. The Judge erred in saying that the pleas could not be sustained, although the County Court had decided the question. See the act concerning sheriffs, 1 Rev. Stat. ch. 109, sec. 5, 6, 7, 8. And if the questionccould be reviewed in any other Court, the plea must be answered by shewing some special matter, and not by a general demurrer.

The Attorney General and Barringer, for the State,

contended that the act applied to every office. Writs of Quo Warranto and Mandamus were writs known to the common law; and the statute of 9th Ann, and 4 and 5 Will: and Mary, only regulated them. Our act embraces the office of sheriff in its terms.' See Bae. Abr. Tit. Information letter D. —Bul. N. P. 210, 211, 212 — People v. Van Slike, 4 Cow-en’s Rep. 297.

2nd. The argument that the act is unconstitutional is based upon the supposition that the proceeding is a criminal one; but it has always been regarded as a civil proceeding, though in some measure in the nature of a criminal one — 4 Cowen’s Rep. 100 — note A in People v. Richardson — People v. Clerk, 4 Cow. Rep. 95 — 15 John. Rep. 387.

3rd. To the objection that the information does not shew that it was filed by leave of the court, the reply is, that it was unnecessary; and if it were, the court’s entertaining and acting upon it, shows that it had its sanction.

*454th. As to the informality of the proceeding, the defendant is too late to avail himself of it after plea. — 4 Term Rep. 276 —Com. Dig. Tit. Quo Warranto — 3 Term Rep. 596, 599. note A. If an information be informal, the proper motion is to quash it; but after plea, it cannot be quashed,.- — 4 Bur. Rep. 2297. The defendant had no right to plead double. 7 Eng. Com. Law Rep. 254.

5th. The fifth objection is, that the County Court has conclusively decided the question. To this it is answered, that the act concerning sheriffs applies only to cases of contested elections. The Superior Courts have a general right to review the decision of the County Courts. The act does not give the County Courts an exclusive jurisdiction, but only declares them to be competent tribunals to decide questions of contested elections.

Gaston, Judge,

after stating the case as above, proceeded: The act in relation to appeals, enacts that when an appeal shall be allowed from an interlocutory judgment, the Judge allowing the appeal shall and may direct so much only of the records and proceedings in the cause to be certified to the Supreme Court as he shall think necessary to present the question or matter, arising upon such appeal fully to be considered by the said Court. No such direction has been given in this case, and we have no means of ascertaining the question or matter referred to us, further than that it arises on an appeal from the judgment over-ruling the respondent’s second plea, and sustaining the demurrer thereto. The direct question, therefore, presented for our consideration is, the sufficiency of that plea. However informal this may be, it is in substance a plea by way of estoppel, that the State is concluded to allege that the respondent was not seized of a freehold of 100 acres in fee, at the time of his election, because that matter hath been determined by the adjudication of the County Court of Rowan.

Waiving all formal objections to this plea, it' is bad in substance. Judgments operate by way of estoppel against all the world, when they are judgments in rem — that is to say, pronounced by a court exercising that peculiar jurisdic*46diction which authorises it to decide on a subject matter independently of parties. And they operate as estoppels between parties, to prevent further litigation in relation to & su{jject matter which has been directly and solemnly decided in a suit properly constituted between them. Now, in regard to the alleged adjudication of the County Court of Rowan, upon what ground can it be alleged to be a judgment in rem, binding all the world? There ought to be a very unequivocal grant of this high power to that Court, before it can be assumed. Where is the evidence of this grant found? In the statute regulating the election of sheriffs, after prescribing by whom they shall be chosen, when and where the votes shall be received, how and where the returns of the votes received shall be made to the County Courts, it is declared, “ and the County Courts, a majority of the Justices being present, shall be a competent tribunal to decide all contested elections under this act.” Here is the whole of their authority to decide “contested elections.”— Between whom is such decision to be made? Manifestly between the parlies contesting. It is an adjudication as far as it goes inter partes, and is therefore binding on none except the parties, or those who come in by privity under them. But it has been argued that the right of the matter in contest, may involve the necessity of determining on the qualifications of the person apparently -elected, because, if he have not the necessary qualifications, the votes cast on him are thrown away. Without stopping to enquire whether this doctrine, the same which was so much agitated in Wilkes's case, be in any respect true with us, and, if so, to what extent, it is a sufficient answer to the argument inferred from it, that whatever the adjudication be — or on whatever founded — it decides nothing, except between the parties to the suit or contest. Public policy may require of parties who have once had a full and fair opportunity of asserting their respective claims before a competent tribunal, and who have obtained a solemn decision thereon, and of the repretatives of those parties, not to agitate the repose of society by further litigation upon the same subject matter; but it would violate the first principles of justice, if any one not a party *47to that contest, and who could not interfere therein, should be precluded from shewing forth his rights because of matter therein determined.

It is insisted, nevertheless, on the part of the appellant, that it the plea in question be bad in substance, nevertheless the judgment on the demurrer is erroneous, because the information is altogether illegal, or if legal, is wholly insufficient. It may be doubted whether these grave enquiries are fit to be considered now, when the question before us is on the interlocutory judgment overruling the plea. But as they have been argued on both sides, and been fully considered, and as our minds are quite made up upon them, we have no hesitation in declaring our opinion.

■ It is objected, in the first place, that an information of the kind before us, is utterly prohibited by the 8th section of our Bill of Rights, which declares that “ no freeman shall be put to answer any criminal charge but by indictment, presentment or impeachment.” The enquiry is, whether the information in question be, within the meaning of the Bill of Rights, a “ criminal charge”? In every well regulated government there must be some mode by which to put down the usurpation by unauthorised individuals of public power. In the country of our ancestors, and in ancient times, when any of the offices or franchises appertaining to sovereignty, and therefore called royal, were supposed to be held or exercised without lawful authority, the remedy was by suing out the writ of Quo Warranto, to enquire by what warrant the supposed usurper supported his claim, in order to determine the right thereto. This was said to be in the nature of a writ of right for the King, and from what we have seen of the pleadings in it, bore little or no resemblance to a criminal prosecution. See Rustell’s entries Quo Warranto. Indeed Mr. Justice Wilmot, in Rex v. Marsden, 3 Bur. 1817, declares positively that it is not a criminal prosecution, but a civil writ at the suit of the crown, though Chancellor Kent, in the People v. Utica Insurance Co., 2 Johns, cases in Ch’y. 117, speaks of it as a criminal proceeding. Be this as it may, the remedy certainly much resembled, if in truth it were not a real action; and, like other actions of that family, *48Was subjected in its prosecution to inconvenient delays. On this account, like most real actions, in process of time it became much disused, and its place was supplied by the in-format¡on in the nature of a Quo Warranto. Originally this was a criminal proceeding. In it the usurpation was charged as an offence, and the offender, upon conviction, was liable to be punished by fine and imprisonment. Such, however, were the conveniences attending the information, as a mode of trying the mere question of right to the office or franchise, that although it never entirely lost its form as a criminal proceeding, it was so modelled as to become substantially a civil action. . A fine, indeed, was imposed upon conviction; but it was nominal only. — no real punishment was inflicted — and it became, before our revolution, the general civil remedy for asserting and trying the right, in order to seize the office or franchise, or to oust the wrongful possessor. See 3 Blk. Com. 262-3—Rex v. Francis, 2 Term, 484—Commonwealth v. Brown, 1 Serg. & Raw. 385—People v. Utica Insurance Co., 15 Johns. 386.

Besides this peculiar information, well known as “the information in nature of a Quo Warranto,” there was a mode of prosecution for the punishment of crimes by “ information.” This was, by a suggestion or charge, drawn up in form, and filed on record by the King’s Attorney General, or by his Coroner or Master of the Crown Office, in the Court of King’s Bench; and was deemed sufficient in every case not capital, to call every man to answer for the offence therein charged. There could be no doubt but this mode of criminal prosecution was as ancient as the common law itself, but the tyrannous use made of it in high prerogative times, especially after jurisdiction of criminal prosecutions by information was extended to other tribunals than the Court of King’s Bench, justly subjected it to the reprobation of the friends to freedom. The framers of our Bill of Rights were not school men dealing in metaphysical abstractions, and busied about technical forms, but practical statesmen guarding against real abuses of power, and securing the substantial rights of freemen. They intended to prohibit this mode of prosecution for crimes, and to throw around the ob*49ject of penal visitation the protection either of a grand jury, or of an enquiry by the impeaching body — before he could be required to plead to a criminal accusation. Such is the purpose of the 8th section of the Bill of Rights; and accordingly, we find it connected with a number of provisions from the 7th to the 10th inclusively, in which are embodied the securities for a fair hearing, full defence, impartial trial, and the administration of justice in mercy to all sought to be convicted and punished because of public offences. The proceeding before us is carried on diverso intuitu, and to hold it prohibited by the Bill of Rights, would be to sacrifice substance to mere form. If, indeed, it should ever be attempted in informations of this character to impose a real fine, or to inflict any other punishment, so as to make them in effect criminal prosecutions, such attempts would fall before the explicit prohibitions of the section of the Bill of Rights now needlessly invoked.

In the next place, it is objected that the present information purports to be framed in conformity to the provisions of our act of 1836, “ concerning writs of Quo Warranto and Mandamus,” (1 Rev. Stat. ch. 97;) but on a fair examination of that act, it will be found not to warrant this proceeding. It is admitted that the words of the act are sufficiently broad to take in the case, for they declare it lawful for the Attorney General or Solicitors of the State, where any person shall hold or execute any office or franchise unlawfully, to exhibit, with the leave of the court, an information in the nature of a Quo Warranto, at the relation of any person desiring to prosecute the same. But it is argued, these words must be taken with some qualification. The act has been modelled after the English Statute of 9lh Anne, which, in terms, is confined to informations respecting the disputed offices and franchises of boroughs and corporations; and although this act cannot be so restricted, yet (it is said) many of its provisions shew that the Legislature had in view contests between different claimants to offices and franchises, and its enactments ought to be understood with reference to contests of this description only.. Here, it is not shewn what interest or claim the relator, Henry Giles, had in or to the *50subject matter of this controversy, and it cannot be intended ^lai; Legislature meant that he, or any other officious stranger, might, under the cover of this act, and in the guise a ,reiatorj cap on any officer of the State, Governor, Judge or Sheriff, to shew the warrant for his public acts, in order to spy out, if possible, some defect of title.

We have before had occasion to say (see State v. King, decided at this term) that there are some provisions in this act as to proceedings by mandamus, which must be regarded as applicable only to contests between individuals. But we cannot yield to the argument that the enactments of the statute were not meant to apply to any other. The purpose of the Legislature, we have no doubt, was as broad and comprehensive as the terms of the act indicate: that is to say, to regulate the mode by which all usurpations of offices and franchises might be examined and determined in the Courts of Justice, “asis usual in cases of information in the nature of a Quo Warranto” Such informations lay, at common law, independently of any statute, for intrusion into any office affecting the public, or for the exercise of a franchise of what was termed a regal character. Buller’s Nisi Prius. 211. The King v. Highmore, 5 Barn. & Ald. 771. Corn’s Quo Warranto, A B. The object of the statute of Anne was to regulate the proceedings thereon in certain cases relating to corporations, and our Legislature followed that statute as a fit model for regulating the proceedings on informations generally. There can be no serious danger, that, under our act, the public repose will be capriciously disturbed, since no information under it will lie, but with leave of the court, and then must be prosecuted by the proper law officer of the State upon his official responsibility. Whether in this case, it was necessary that any relator should be named, we stop not to enquire. For whether he be named or not, the information is that of the solicitor of the State; and we hold it to be clear, that under our act “concerning the Attorney Gen_ eral and Solicitors for the State,” each Solicitor, within his respective circuit, holds in all pleas of the State the same authority which the Attorney General may exercise therein, within Ms circuit. There is nothing in the nature of the *51office here claimed, which should exempt usurpations of it from the mode of legal examination and trial provided by this act. See People v. Van Slick, 4 Cow. 323. Commonwealth v. Fowler, 10 Mass 295.

Other objections have been made to the mode of proceeding, but they do not appear to us well founded. It has been objected that it does not appear that this information was filed by leave of the court. Without admitting that it is necessary that this fact should appear affirmatively, we hold, that in this case, the explicit sanction by the court of the information of the Solicitor, as declared of record, shews that it was filed with the leave of the court.

It has also been objected that the full title of the i£ Solicit- or jfor the State is not set forth in the information, but he is termed “ Solicitor” only. The court knows, judicicially, who is the Solicitor for the State in that circuit; and we presume. it had no difficulty, and we can have none,? in understanding that it was in this official character the information was filed. If there be any thing in the objection, it is formal only, and cannot avail the respondent, on a demurrer to his plea.

We see no sufficient cause to disapprove the judgment from which the respondent has appealed to this court. This opinion must be certified to the Superior Court of Rowan, that the said court may proceed in the matter before it accordingly.

Per Curiam. Judgment affirmed,.