
    Attorney General vs. Leaf.
    Neither the proceeding by writ of quo warranto nor by information in the nature thereof, is in force in the State of Tennessee.
    A petition was filed in the Commercial and Criminal Court of Memphis, in the name of Caruthers, attorney general of the 11th solicitorial district, on the information of Hughes against Leaf.
    This petition stated that Hughes was elected by the County Court of Shelby, standard keeper and inspector for the county, in 1846, and that he was qualified and entered on the office; that in 1848 the Legislature passed a law which declared that the standard keeper and inspector for the county, should be standard keeper and inspector for the city of Memphis, under the corporate laws thereof; that at the date of said act relator Hughes was duly in office, that in 1848, the County Court of Shelby elected H. L. Leaf, to fill the office lawfully occupied by relator.
    The petition prays that a writ of quo warranto may be ordered to issue commanding Leaf. to appear and show by what right he claims to exercise said office, to the end that he may be ousted of the same, and also that he be restrained by writ of supersedeas from exercisi-ing said office.
    This petition was verified by the affidavit of Hughes.
    The presiding judge, King, ordered the clerk to issue the wi’its as prayed for, on bond and security being given for costs and damages.
    The defendant was summoned to appear, and on the trial of the case, the court declared the election of Leaf void, and that he be ousted and removed from said office, and that Hughes be restored to the same-.
    The defendant, Leaf, appealed.
    
      E. M. Yerger and S. Jarnigan, for the plaintiff in error.
    Neither the writ of quo warranto or the information in the nature of such writ is in force in this State. Turk vs. State, Martin and Yerger, 279; and the proceeding is in other respects irregular. Buller. N. S. p. 210; 4 Cowen 106; Bacon Ab. Information, 2 B. and A. 339.
    F. D. Barry, for the defendant in error.
    1. Informations in the nature of a quo warranto, upon the relation of a private person, must be drawn and prosecuted by bim, though the name of the public prosecutor must be used pro forma. 7 C. Dig. 196; 2 Dallas’ R. 112, Respublica vs. Griffiths, Cole on Quo War. 113; 4 Bl. Com. 308; 2 Term. R. 484, Rex vs. Francis; Cole on 'Quo War. 172.
    2. Where an office is full de facto, and another disputes the validity of the election, his remedy is by quo warranto, and not mandamus. Cole 147; 2 Term. R. 259, Rex vs. Mayor of Colchester; 6 Ad. and Ellis 349, Rex vs. Mayor of Oxford-, 1 Nev. and P. 474, same case.
    3. Judgment for costs may be given to the relator; Cole 236, 336, and may be entered for ouster by default, Cole 304; 5 Bae. Abr. 186.
   McKinney, J.

delivered the opinion of the court.

The judgment of the court below, in this case, cannot be maintained, and must be reversed and arrested.

In the case of the State at the relation of Lowry vs. Turk (Martin and Yerger’s Rep. 287,) it was solemnly adjudged, upon much consideration, that neither the ancient writ of quo warranto, nor the information in nature thereof, had ever been in force or use in this State.

In delivering the unanimous judgment of the court in that case, Crabb, judge, says: “ we are also of opinion, after a careful consideration of the arguments, and numerous authorities produced at the bar, that the mode of - proceeding sought to be used in this case, is not sanctioned by the laws of this State. The old writ of quo warranto had fallen into disuse in England prior to the passage of the North Carolina act of 1715, ch. 31, sec. 6, adopting the English common law. Neither that nor an information in the nature of it, is known by us to have ever been used in the colony of North Carolina, and was not, therefore, incorporated into our code by the act 1778, ch. 5, sec. 2, which did not adopt such parts of the ' common law as' had not been in force and in use in the colony; or were inconsistent with the new form of government; or which had been abrogated, expired, or become obsolete. This decision has exacted the acquiescence of the courts and the profession, and has been reguarded as the settled law of this State, for a period of now more than, twenty years; and a rule so long established, and, as we think, correctly, ought not unless upon the ground of very urgent necessity, to be departed from or brought into question; no such necessity, in our judgment, exists, and therefore, we reaffirm the doctrine of that case-

in this view of the case, it were needless to show, that, were the law held otherwise, the mode of proceeding adopted in this case, and the judgment of the court, are wholly unauthorised, irregular and void, as will be seen by reference to the well established practice of the court of King’s Bench, and also of such of the American courts as have adopted this form of remedy in such cases : See note to the case of the People vs. Richardson, (4 Cowen’s Rep. 97,) where the authorities, English and American, are collected, and the regular mode of proceeding pointed out.

The judgment will be reversed and arrested, and the proceedings quashed.  