
    * Commonwealth versus Jonathan Smith, Jun.
    This Court will not give an opinion to the law officers of the government, whether an order of the House of Representatives is a sufficient authority for them to pray process against one who exercises the office of sheriff; because the officer de facto has a right to be heard before any such opinion be given.
    On the 4th of February, 1810, the House of Representatives of this commonwealth passed an order requesting the attorney or solicitor-general to file informations in the nature of a quo warranta, to know by what authority sundry persons, therein named, exercised certain offices in the county of Hampden, and, among others, by what authority Jonathan Smith, Jun., Esq., exercised the office of sheriff of said county.
    Whereupon, at this term, the attorney-general and solicitor-general filed an information, in which they recited at large the aforesaid order, and in pursuance of and compliance with the same, and of the request therein contained, give the Court to understand that said Smith, for six months last past, has used and exercised, and still doth use and exercise, the office of sheriff of the said county, without any warrant or lawful authority therefor ; which said office and the powers, &c., thereto belonging, he hath usurped, and still doth usurp, upon the government of the commonwealth, to the great damage and prejudice of the lawful authority thereof: —Whereupon the said attorney and solicitor-general pray the advisement of the Court in the premises; and if the Court are of opinion that the aforesaid order of the House of Representatives contains sufficient power and authority for them to prosecute this information to final judgment then they, the said attorney, &c., move the Court for due process of law against the said J. S., Jun., in this behalf to be made, to answer to the said commonwealth, by what warrant he claims to have, use, exercise, and enjoy, the said office of sheriff of said county of H.”
    
    
      Morton, (Attorney-General,) and Davis, (Solicitor-General,)
    
    after reading the information, declined filing it ex officio, because they had not been thereto authorized, either by the executive or by both branches of the legislature.
   The Court

declined, on their part, to interfere with any advice on the subject, and ordered the following entry to * be made of record, viz.: “ And now the Court decline to give any opinion, whether the said order of the House of Representatives contains sufficient power and authority for the said attorney-general and solicitor-general to prosecute this information, previous to the issuing of process thereon ; because the said Jonathan Smith hath a right to be heard before any such opinion be given.” 
      
      
         [What necessity was there for any authority from the legislature P In the Commonwealth vs. Fowler, (10 Mass. Rep. 290,) it was held that an information in such case might be filed by the attorney-general ex officio, and that the order of the House of Representatives had no operation to extend, or limit his official duties. And see The People vs. The Utica Ins. Co., 15 Johns. Rep. 358. — Ed.]
     