The question is, whether this appeal is sustainable; whether the action under the statute against secret assaults, is not within the final and conclusive jurisdiction of the county court ?
This question depends on the nature and character of the action. The process qui tam, as it has been often used, is a nondescript in legal science. But certain principles have been settled, which perhaps are decisive of this point.
The case of Northrop v. Bush and another, Kirby 108. was an action in the name of Northrop alone, without any notice of the state. In that case, no exception was taken to the form of action.
The point, whether under this statute, it were necessary for the party to join with the state, was never, to my knowledge and recollection, distinctly made, until the case of Usher v. Carrier, tried before the superior court in Middlesex county, summer circuit (I believe) of 1808.
The court decided, that in a process under that statute, it was indispensible to join the state ; that the process, from its nature, must be a forthwith process ; that it could not, and ought not, to be in the power of one individual, by the strength of his own arm, to call another immediately to appear and answer, without calling in aid the power and dignity of the state.
This decision, I believe, has ever since been uniformly acquiesced in. This settles the point, that the state must be joined, as it is in the present case. But the question is not fully disposed of. Was the action appealable ?
Without relying on the case of Coit v. Geer, Kirby 269. which *308I hold to be law, I should say, it was not. When the state is fairly and legally a component part, in a process before a court of competent jurisdiction, the decision of that court ought to be conclusive, at least against the state, and the party who has joined himself with it; and if conclusive against this combined and complex party, it is difficult for me to see why it should not be against the other. I speak not of actions qui tam for penalties, merely for the recovery of a certain sum of money. But be this as it may, in other cases of qui tam process, it appears to me, that in this instance, the statute determines what court shall have final jurisdiction, in case of prosecution under it. For it says "the justice, on finding certain facts, shall bind the party complained of, in a sufficient bond, with sureties, to the adverse party, to appear at the next county court in the county, and answer to the complaint, and pay all such damages as shall be awarded against him, by the final judgment of said court ;" And further, "that he shall pay to the treasurer of the county such line as said court shall impose."
Should this appeal be sustained, the judgment for the fines, as well as for the damages, would be annulled ; and I do not see, that it would be in the power of the superior court to impose others in their stead.
I am of opinion, that the appeal is not sustainable; and would, therefore, advise, that the judgment of the superior court be, that the plaintiff’s plea in abatement is sufficient.
The other Judges were of the same opinion.Appeal abated.