dissenting. The plaintiff in this action brought a civil action in the nature of quo warranto against this defendant to recover the possession of the office of Solicitor in the Criminal Court of Buncombe- County, and at August Term, 1899, of the Superior Court of that county recovere'd a judgment upon the complaint and answer. The defendant appealed to this Court and the judgment was affirmed. At the term of the Superior Court, when the certificate of the opinion and judgment of this Court was received, the plaintiff made two motions, the first for a reference to have ascertained the amount of fees and emoluments the defendant had received while he was wrongfully in possession of the office; and, second, for an amendment to his complaint to embrace a claim for such fees and emoluments. The motions were overruled, and upon appeal by the plaintiff to this Court it was decided that there was no error in the ruling. In the meantime, on November 25, 1899, the plaintiff had commenced the present action in the Superior Court of Buncombe County against the same defendant *369(AVebb) and the other defendants, J. E. Rankin and A. A. Eeatherstone, for the recovery of $657.51, which it is admitted was the amount of fees which the defendant had collected while in possession of the office of Solicitor of the Criminal Court of Buncombe County.
The defendants in their answer set up as a defense to the action of the plaintiff the plea of res judicata. They contend that by law the matters of complaint in the present action should have been heard and decided in the original quo warranto proceeding, and the plaintiff not having claimed the fees and emoluments of the office in that complaint in that suit, nor made a motion to have the fees and emoluments ascertained in that action, is precluded from making such demand against the defendants in a separate action. This question then is presented: Is the plaintiff in a quo warranto action for the recovery of an office compelled to have the damages, in the way of fees received by the intruder, assessed and ascertained in the same action? Or may he recover the office in the quo warranto proceeding and bring an action for the fees and emoluments in a separate action, if he sees fit to take that course? The answer to the question depends upon the construction of certain recent statutory law.
By the terms of section 616 of The Code, actions to try the right or title to any public office are required to be tried at the return term of the summons if the complaint shall have been filed and copy served with the summons ten days before the return day thereof, and the Judges are to expedite the trial of such actions and give them precedence over all other actions, criminal or civil. The Act of 1895, chapter 105, amended section 616 of The Code by adding these words: “The defendant, before he is permitted to answer or demur to the complaint, shall execute and file in the Superior Court Clerk’s office of the county wherein the suit is *370pending, an undertaking with, good and sufficient surety in the sum of $200, which may be increased from time to time in the discretion of the Judge, to be void upon condition that the defendant shall pay to the plaintiff all such costs and damages, including damages for the loss of such fees and emoluments as may or ought to have come into the hands of the defendant, as the plaintiff may recover in the action.” (Italics ours). The General Assembly at its session of 1899 amended the above-mentioned act by adding to section 1 the following: “At any time after a duly certified complaint is filed alleging facts sufficient to entitle the plaintiff to the office, whether such complaint is filed at the beginning of the action or later, the plaintiff may, upon ten days'" notice to the defendant or his attorney of record, move before the resident Judge or the Judge riding the district, at chambers, to require the defendant to give said undertaking; and it shall be the duty of the Judge to require the defendant to give such undertaking within ten days, and if the undertaking shall not be so given, the Judge shall render judgment in favor of the plaintiff and against the defendant for the recovery of the office and the costs, and judgment by default and inquiry, to be executed at term for damages, including loss of fees and salary. Upon the filing of said judgment for the recovery of such office with the Clerk, it shall be the duty of the Clerk to issue and the Sheriff to serve the necessary process to put the plaintiff into possession of the office. In case the defendant shall give the undertaking, the Court, if judgment is rendered for the plaintiff, shall render judgment against the defendant and his sureties for costs and damages, including loss of fees and salary.”
The plaintiff in this action, after he had duly verified his complaint, twice moved before the Judge of the district to have bonds according to the statutes executed by the defendant to secure the fees and emoluments of the office. The *371bonds were ordered, and one of them was executed by J. E. Eankin and A. A. Featberstone, defendants in this action, as sureties in the penalty of $200, and the other by Eankin as surety for $300. The condition in each of these bonds is that the bond shall be void if the makers shall pay to the plaintiff all such costs and damages, etc., as the plaintiff may recover of the defendant in this action. (Italics ours). These bonds were drawn in exact conformity to the statutes to which we have referred, and according to the language, its clear intent and meaning, and the meaning of the statutes themselves, no damages can be recovered on the bonds in the present action. The undertaking was that the makers should be liable on the bond only for such damages as might be recovered by the plaintiff in the action in which the bonds were given. The plaintiff did not see fit in that action to claim his damages and have them assessed, but of his own motion recovered a judgment upon the pleadings for the office simply. lie must have known that, so far as the bonds were concerned, if he wanted damages he was required to recover them in that action.
I, however, think that the judgment below against the defendant Webb ought to be affirmed. I am satisfied that the extraordinary benefits and remedies furnished by the statutes referred to, to the plaintiff to secure to him the benefits of a recovery, were intended also to afford the sureties on the bond the advantage of having that part of the action which referred to the damages which the plaintiff was entitled to recover, settled speedily and in the same action. It was for the benefit'of the sureties, and not for that of the intruder, that the statute required that damages should be assessed in the quo warranto proceeding.
In quo warranto proceedings, so far as the question of damages is concerned, against the intruding defendant, section 613 of The Code still applies. Its language is as fol*372lows: “If judgment be'rendered upon tbe right of tbe person so alleged to be entitled, in favor of sucb person, be may recover by action tbe damages wbicb be shall sustain by reason of tbe usurpation by the defendant of tbe office from which sucb defendant has been excluded.” That section of Tbe Code does not require that k plaintiff in quo war-ranto, in bis claim for damages, shall be compelled to recover them in that action. Tate v. Howerton, 70 N. C., 161. In that case it was decided also that an intruder who may perform tbe duties of tbe office and receive tbe fees arising therefrom cannot retain any part of tbe fees as a compensation for bis labor. This case of course overrules that of McCall v. Zachary (a unanimous opinion of tbe Court), 131 N. C., 466, so far as they are in conflict. Tbe statutes I have referred to in this case were not so critically examined by me in that case as they have been examined in this; and tbe argument for tbe defendant, too, before this Court in the present case was more elaborate and thorough than it was in that case.
Modified and Affirmed.
Douglas, J., concurs in dissenting opinion.