People v. Richardson

4 Cow. 97

• Court: New York Supreme Court
• Decided: February 15, 1825
• Status: Published

Opinion

[Sutherland, J.

I think we had that very case before us, when we granted your rule at the last term.]

The 4th section of the statute, the title of which is, “ An act for rendering the proceedings upon informations in nature of a quo warranto more speedy and effectual,” provides that the defendant shall appear and plead as of the same term in which the information shall be filed, unless the Court shall give farther time. One object of the statute was to avoid delay ; and its beneficial ends would be entirely defeated in many cases arising under our constitution and laws, the provisions of which make many offices of very short duration, if the prosecutor shall be put back to the dilatory process of the common law.

Spencer, in reply. The Attorney General agrees with me that the settled practice of the King’s Bench, which is also the law of this Court, requires that process should issue.- The statute gave a new remedy, unknown to the common law; and if this remedy is to be more speedy, it is an additional reason why the party should have due notice upon process, at the hands of the proper officer of the Court. It is said, the defendant must answer as of the same term at which the information is filed. The provisions of the act may be inconsistent with themselves, but this will not warrant judicial legislation. The act however, by a more speedy remedy, may mean merely that the 15 days between the test and return of process, required. by some of the cases which I cited, be dispensed with.

The case of a scire facias, mentioned by the Attorney General, is not an original proceeding. It is always founded upon a record, showing 'that the party had before been in Court, and confessed the debt, or that it had been adjudged against him in a course of litigation ; or it is intended, like a rule, to hasten proceedings in a cause wherein he has previously appeared.

Nor does it follow, because Mr. Kip and his associates, or other defendants, may have appeared gratuitously upon a rule, or slept upon their rights, that the whole practice is to be overturned.

Cur. adv. vult.

Curia.

We have looked into the statute relative to in-formations in nature of a quo warrdnto, with the authorities which relate to it. The 4th section, (1 R. L. 108,) declares, that the Attorney General may proceed, after filing the information, in such manner as is Usual in cases of in-formations in the nature of a quo Warrdato. We think this clause refers to the process by which the defendant is to he brought into Cotirt and, at any rate, we see nothing in the statute which dispenses With the ancient practice in this respect. In England, the course is perfectly Well ¡settled. The Attorney General must proceed either by venire facias and distringas, or subpoena and-attachment. This subject, it is true, has been several times before the Court; but it was upon motions entirely ex parlé, the matter passed without discussion, and the Court did not go into- the law of the question which is ntiw presented. Nothing was decided which has the forcé of binding "authority. The subject is fairly open, and we see ito necessity for departing from the English practice. The judgment by" defati.it must be set aside.

Rtile accordingly.

) This proceeding by information in nature of a quo ibartanto, is becoming a cofnmoü one, upon which maiiy of the profession may bo called to advise. Yet it is a subject of which our books of practice and of reference have taken but little notice; and it, is, most likely, owing to this, that the jiiost eminent practitioners must be many times at a loss what course to pursue, without groat trouble in examining many books, through which the Cases and entries are scattered. These considerations led me to suppose that not only would the report of new cases of practice on this head be acceptable to the profession, but that a summary classification and note of the older Authorities might not be deemed useless.

Cases in which this information lies.] These will be seen, generally, by the statute, (1 R. L. 108, s. 4,) made to regulate the proceedings; though the power of the Court to grant the information was not derived from this act. It was intended merely to regulate the proceedings, in the cases mentioned by it. (Bull. N. P.211.) For the common law power, as well as that conferred by the English statute, see Bull. N. P. 210, 211, 212 ; Com. Dig. Quo Warranto, (A,) (B;) 2 Morg. Att’ys Vad. Mec. 103-4-5, and the cases there cited. Also, 3 T. R. 596, 599, n a.; 2 East, 308 ; 6 T. R. 560 ; 6 East, 359 ; 5 T. R. 85 ; 4 East, 337; 3 T. R. 596 ; 4 id. 240, n.; 3 East, 119 ; 4 East, 327 ; 6 East, 356. In The King v. Highmore, (5 B. & A. 771,) an information was granted tb try the right to the office of bailiff; though not a corporate office. The words of our statute are broader than the English, as to the kind of office or franchise, for the usurpation of, or intrusion into which the remedy is given. The English statute is recited in Bac. Abr. Informations, (D ;) 2 Hawk; P. C. ch. 26, s. 14, 15, 16. 9 he statutes of this State to regulate the proceedings, and to extend the statute of amendments and jeofails to these proceedings, are in 1 R. L. 108-9, s. 4, 5, 6, and 121, s. 10.

In Massachusetts, this information lies to inquire into the election of an officer or member of a corporation, on the relation of any one interested in, or injured by the election or admission. . (Commonwealth v. Union Fire Ins. Co. in Newburyport, 5 Mass. Rep. 230.) So against officers appointed by the executive, as well as those holding corporate offices Or franchises. (The same v. Fowler, 10 id. 290. 11 id. 339, S. C.) The jurisdiction belongs to the Supreme Judicial Court. (Id.) Where one is appointed by the governor to an office which does not exist, this information lies. (Id.) The writ of assize of novel disseisin does not lie to recover the office of Chief Justice of a district. (Whittington v. Polk, 1 Harris & Johnson’s Rep. 236.)

In this state it has been decided, that where a person is in office by color of right; the remedy is not by mandamus to admit another having lawful claim ; but by information in the nature of a quo warranto. (The People v. The Corporation of New York, 3 Johns. Cas. 79. The People v. Hillsdale and Chatham Turnpike Co. 2 Johns; Rep. 190, also cited post.) An information lies against an incorporated company, for carrying on banking operations, without authority from the legislature. (The People v. The Utica Ins. Co. 15 Johns. Rep. 358.) For privileges and immunities of a public nature which cannot be legally exercised without a legislative grant are franchises, although they never existed in the people, or could be exorcist d by them in their political capacity. (Id.) An information was filed to try the election of a county clerk in New Jersey, and the right of a deliberative assembly to reconsider their proceedings discussed and passed upon by the court. (The State v. Foster, 2 Halst. Rep. 101.) This information will lie against a corporation or an individual. (Cas. K. B. 225. Bull. N. P. 212.)

In what Courts.] In England this information is filed in the King’s Bench, (2 Sull. Lect. 168-9.) In Massachusetts, in the Supreme Judicial Court. (Commonwealth v. Fowler, 10 Mass. Rep. 290.) In this state, in the Supreme Court.

Nature of the proceeding.] Though a criminal proceeding ip form, yet in substance it is but a civil one. (Rex v. Francis, 2 T. R. 484. 2 Kyd on Corp. 439. The Commonwealth v. Browne, 1 Sergt. & Rawle’s Rep. 385, per Tilghman, C. J.)

When leave to file this information will he granted.] It is not granted of course, but depends on the sound discretion of the Court upon the circumstances of the case. (Bac. Abr. Informations, (D.) The King v. Trevenen, 2 B. & A. 339.) The People v. Sweeting, 2 Johns. Rep. 184.) The statute, (1 R. L. 108, s. 4,) mentions leave of the Court—so of the English statute—as to leave under those statutes, the following cases have been decided:—It will usually be granted, whore the right, or the fact on which the right depends, is disputed and doubtful. (Rex v. Latham, 3 Burr. 1485. 1 Bl. Rep. 468.) Or whore the right turns - upon a point of new or doubtful law. (Rex v. Carter, Cowp. 58. Rex v. Godwin, Doug. 397.) Or where there is no other remedy. (Cas. K. B. 225. Bull. N. P. 212.) It does not seem to be a reason for refusing an information, that the.objection to the defendant’s title arises from a defect in the title of some other person, through whom' he claims, provided the application be made within proper time, (8 Mod. 216;) for it is admitted, thaj where judgment of ouster has been given against a person through whom a title is claimed, that may bo a reason for granting an information to impeach the derivative title, (2 Sir,. 1109; Andr. 389 ; 5 Burr. 2601; Cowp. 500, arguendo;)' and that the title of the defendant may bo impeached by an issue introduced on the record, respecting the title of the person under whom he claims, though the latter lias' not been ousted on an information filed against hm. (Id.) It may, or may not be possible to impeach the original right on which the derivative title depends, by an information filed against the person who claimed to exercise that right. Whatever may bo the case, where that may be done, but in fact has not been done, it has been decided, that where it cannot be done, the original right may be impeached in an information against the person whose derivative title depends upon it. (Rex v. Mein, 3 T. R. 596 ; 2 Kyd on Corp. 435-6. It is no objection to an information against an alderman, that the relators who opposed the election, afterwards made no opposition to his election to the principal office of magistracy, which required that the defendant should be an alderman as a qualification for the higher office; or that they attended at, and concurred in corporate meetings, whereat he presided or attended in his official character. (The King v. Clarke, 1 East, 38.). Nor is it an objection, that the relators in an information which would operate, in its effect, to dissolve the corporation, attended corporate meetings at which the mayor was elected, whose election they impeach on the ground that the corporation was dissolved by the loss of an integral part; and that they voted for another candidate, and afterwards attended other corporate meetings at which such mayor presided. (The King v. Morris. The same v. Stewart, 3 East, 213.) So a previous knowledge of the fact, in the person on whose affidavit the motion is made, will not be a ground for refusing the information, if he was under no obligation of remonstrating against the proceedings, if he be .in fact merely a witness, not relator; as in the case of an application on the affidavit of the town clerk. (Rex v. Binsted, Cowp. 75.) Nor will the relator’s concurrence in the election of the defendant, bo any ground for refusal, if the objection was matter of substance, not of form in the election. (Rex v. Smith, 3 T. R. 573.) And where the application is made on the affidavit of several persons, all of whom, but one, concurred in the election of the defendant, if that one will avow himself the relator, and render himself responsible for the costs, his being joined with others who concurred in the election will be no reason for refusing the information. (Rex v. Simmons, 4 T. R. 223.) Where the application is made for the purpose of enforcing a general act of parliament, which interests all the corporations in the kingdom, it is no objection that the party applying is not a member of the corporation. (Rex v. Brown, 3 T. R. 574, n.) The abandonment of a former information, for the same cause, is, of itself, no reason for refusing an information, as that may have been by collusion. (Rex v. Bond, 2 T. R. 771.) The Court will make the rule, for an information in nature of a quo warranto absolute, though the party has, since the rule obtained, resigned his office, and his resignation has been accepted. (Rex v. Warlow, 2 M. & S. 75.) Rules to show cause or informations were granted, in various cases, in 8 Mod. Rep. which it may bo useful to consult, by way of illustration, at pages 132,135, 165-6, 35, 36,215-6, 234.

When it will not he granted.] If the defendant can show that his right has already been determined by mandamus, (2 Hawk. P. C. ch. 26, s. 9;) or that it depends on the right of those who voted for him, which has not yet been tried, (id ;) or that the person upon whose right the defendant’s title depends has enjoyed his franchise so long, that the Court would not permit it to be impeached in this mode of proceeding, the information will be denied. (Rex v. Stevens, 1 Burr. 433. Rex v. Peacock, 4 T. R. 684.) So if the defendant’s right havo been acquiesced in for a length of time, (Bac, Abr. Informations, (D.) The time within which a corporate office might be impeached by a quo warranto, was, by the common law, indefinite ; it varied with the circumstances of each particular case. (Rex v. Powell, 8 Mod. 165. Rex v. Pike, id. 286, cited 1 T. R. 4, n. and 3 T. R. 311. Rex v. Williams, 1 Str. 677 ; and vid. 1 T. R. 1. Id. 3, and note there. 3 id. 310, 311. 2 T. R. 767.) And it was, for some time, thought better that it should be unsettled, (Rex v. Latham, 3 Burr. 1485-6, per Ld. Mansfield.) At length, however, the Court set a limit to their discretionary power, and confined it, in analogy, to other cases of limitations, within twenty years, (Winchelsea causes, 4 Burr. 1962, 2022, 2121. Rex v. Rogers, id. 2523 ;) and, at length, tó six year. (Rex v. Dickens, 4 T. R. 282. Rex v. Peacock, 4 T. R. 684. R. G. Hil. T 1791. 4 T. R. 284.) And the last period was confirmed by Parliament; (Stat. 32, Geo. 3, 58, and vid. Rex v. Autridge, 8 T. R. 467.) If the person from whom the title was derived be dead, it seems the information should hot be granted," (Rex v. Spearing, 1 T. R. 4, n.) or the parties have bed quiesced. (The King v. Stacey, 1 T. R. 4, per Buller, J.) So where so great a number "of derivative titles would be affected by a. judgment against the defendant, that it would tend tó dissolve the corporation. (Rex v. Carter, Cowp. 59, per Ld. Mansfield.) So where the .franchise no way concóma the public, (ds all those which relate to the government of a corporation, of the election of members of parliament; case of the Borough of Horsham Hil. 30 Geo. 3. 3 T. R. 599, n. Rex v. Mein, id. 598-9. The King v. Bingham, 2 East, 308; and fairs and markets; &c. are said to do, 2 Hawk. c. 26, s. 9 ;) but is wholly of a private nature, as a coney-warren, (Rex v. Sir William Lowther, 2 Ld. Raym. 1409) 1 Str. 637, S. C. Motion's case, Cas. Temp. Hardw. 248. Rex v. Caan, Andr. 15. 1 Both ph 326. Rex v. Shepherd, 4 T. R. 381.) So where two sets of churchwardcné aré sworn in. (Rex v. Dawheny, 2 Str. 1196.) And qucere as to fairs and markets, (Rex v. Marsden, 3 Burr. 1812. 1 Bl. 579. Motson’s cáse, Cas; Temp. Hardw. 248. Hardr. 162/ arguendo.) So; if the election by which the defendant claims is agreeable to the charter; or he has never acted under the election, or there has been but a mere claim, and no uset of the franchise. (Rex v. Ponsonby, Say. Rep. 245. Rex v. Whitwell, 5 T. R. 85.) But swearing in is a user, though it be defective; The King v. Tate, 4 East, 337.) So, if it appear that the timé foi which the ofiicer was elected" Will expiró before the inquiry can have any effect. (The People V. Sweeting, 2 John. Rep. 184. Commonwealth v. Alhearn, 3 Mass. Rep. 285.) So where the persons on whose affidavits the motion is gróúndéd, havó lain by without recently prosecuting, though with full knowledge of the fact, (Rex v. Wardroper, 4 Burr. 2024, per Aston, J.); br have concurred with the rest of the corporation in a fésoliitiéh hot to talie advantage of a flaw in the defendant's title, (Rex v. Mortlock, 3 T. R. 300;) or where the prosecutor, stands in the samé circumstances with the defendant; (per Ld. Kenyon, Ch. J. in Rex v. Bond, 2 T. R. 771 ; Rex v. Cudlipp, 6 T. R. 503;) or whére the persons in whose haine the application is madb, are wholly connected with the Corporation. (Rex v. Stacey, 1 T. R; 3 and note there.) So whefe the application is manifestly frivolous and vexatious; and the Court will, in such case, discharge the rule with costs. (2 Str. 1039. 2 Burr. 780. 3 T. R. 301;) The Court will not grant" an information to try the validity of an election to the cilice of churcliwaf/ deh, because it is no Usurpation on the crown. (Rex v. Shepherd, 4 T. R. 381.) So where the relator had agreed not to enforce a by-law upoh which he now grounded his attempt to impeach the defendant’s title. (Rex v. Mortlock, 3 T. R. 300.) It is á valid objection, that the relator was present, and cbiicurted, at the timé of the objectionable election, though he Was then ignorant of the objection. (The King v. Trevenen, 2 B. & A. 339.) So" where the relator is indigent, and there áró strong reasons to suspect that ue is applying not on his own account, or at his own expense, but in colínsion with a stranger. (Id.) So where the circumstances throw suspicion on the motives of the relator, and the consequence will be to dissolve a corporation. (Id.) The Court will not grant this information to enforce a claim for damages against a turnpike company, done to the relator’s pro-petty in laying out a road, though the act require the company to pay the damages. (The People v. The Hillsdale and Chatham Turnpike Co. 2 John. Rep. 190.) A secondary and incidental ground for the information, resorted to by way of forlorn hope, after the original and main ground has failed, will bo listened to with distrust; and the Court, in their discretion, may disregard it, though it might bo a good ground if brought before the Court in the first instance. (Rex v. Osbourne, 4 East, 327, 336.) Quo warranto will not lie against a county treasurer, to show by what authority ho holds the office, if ho has been, de facto, elected by the Justices in Quarter Sessions. (Rex v. The Treasurer of Herefordshire, 1 Chit. Rep. 700.) Rule to show cause why information in nature of a quo warranto should not be filed against an ordinary, discharged. (Hays, relator, v. Harley, incumbent, 1 Rep. Con. Court, South Carolina, 267.) It will not be granted against a person exercising a corporate franchise, to which ho has been legally elected, though he has committed an offence which might amount to a forfeiture, until ho has been removed by the corporation. (Rex v. Heaven, 2 T. R. 772.) It was denied on the oath of a town clerk, who swore that ho had not sworn the defendants; because he had entered that he had sworn them on the record. (Rex v. Williams, 1 Str. 677.)

The affidavits on which the motion is founded.] These should not be entitled in any cause. (The King v. Pierson et al. Andr. 313, per Pago and Probyn, Js. King q. t. v. Cole, 6 T. R. 642, per Lord Kenyon, Ch. J. Haight v. Turner, 2 John. Rep. 371-2.) On an affidavit, that the relator did not believe that the defendant had been duly sworn in, though the affidavit to show cause did not expressly allege that he had been sworn, but stated that he appeared, by the corporation books, to have been sworn in, the Court denied an information. (The King v. Newling, 3 T. R. 310.) If sufficient appear to draw the merits of an election to a corporate office in question, the Court will grant the information, though the deponents swear only to their information and belief that the defendant was admitted a freeman, &c. this not being denied by the defendant, on showing cause. (The King v. Harwood, 2 East, 177.) The form of the affidavits for the rule to show cause are given at length in The Commonwealth v. Douglass, (1 Bin. Rep. 77.) If the affidavit in support of the rule omit a material fact, which is stated in the affidavit filed on the other side, the latter may bo read by the prosecutor in support of his rule. (Rex v. Mein, 3 T. R. 596.) On application upon the ground that the defendants were elected contrary to the provisions of a particular charter, the affidavit must state that the charter was accepted, or that the usage has been in conformity to it; and the affidavit being ill foi omitting this, the Court refused leave to amend it, but put the party to a new application. (The King v. Barzey et al. 4 M. &, S. 253.)

The rule thereupon.] It is usual to proceed by rule to show cause, on ex parte affidavits; but the Court have a discretion as to this ; and where the whole case had been disclosed by the defendants’ answers in Chancery, and the answers of others favorable to them, touching the subject of tho application, the Supreme Court looked into the answers, and granted a rule for an information in the first instance. (The People, ex rel. Barker, v. Kip ct al. 1 U. S. Law Journal, 286.)

Rule to inspect books.] Upon a rule to show cause, the Court will grant a rule for the inspection of books belonging to the corporation. (Bull. N. P. 210.

Affidavits on showing cause.] These may be entitled. (The King v. Pierson et al. Andr. 313, per Page and Probyn, Js. R. King q. t. v. Cole, 6 T.R. 640, 642, per Ld. Kenyon, Ch. J.) Or they may not be entitled, at tho defendant’s choice. (R. King q. t. v. Cole, 6 T. R. 642, per Ld. Kenyon, Ch. J.) If these affidavits, and the cause shown, do not put the matter beyond dispute, the rule will be made absolute. (Bull. N. P. 210.) The Court will judge, from all the circumstances of the case, who is the real relator. Per Ld. Kenyon, Ch. J. in Rex v. Cudlipp, 6 T. R. 509.)

Showing cause.] Unless the cause shown be such as puts tho matter beyond dispute, the Court will make the rule absolute for the information, in order that the question concerning the right may be properly determined. (Bull. N. P. 210.) But, it seems, the Court will not grant tho rule for an information on tho last day of the term (Rex v. Davies, Say. Rep. 241.)

The Information.] A sufficient variety of English precedents will bo found in 6 Wentworth’s Pleadings, 28 to 234. These are, for usurping or intruding into the offices or stations of aldermen, p. 28 ; of mayor, 40, 50, 107, 161, 119, 214; of bailiff of a borough, 60; master of the company of coopers, 63; burgess, 71, 146, 154, 184, 188, 194, 200, 209,225,234; commonalty steward, 81; freeman of a borough, 84, 137 ; of a city, 132; commoner, 175; freemen of Coventry, 180. The 2 Kyd on Corp. 403, gives this as the outline of the English form:

“ Such an one, Attorney General of the Lord the King, who sues for tho Lord the King, in this behalf, comes here into the Court of our said Lord the King, before the King himself, at Westminster, on, &c. in this same term, and, for the said Lord the King, gives the Court here to understand and bo informed, that -, for the space of- now last past, and moro, have used, and still do use, without any warrant or royal grant, the following liberties and franchises, to wit: -. Of all which liberties, privileges and franchises aforesaid, the said-, during all the time aforesaid, have usurped, and still do usurp upon the said Lord the King, to the great damage and prejudice of his royal prerogative, whereupon the said Attorney General of the said Lord the King, prays the advice of the Court in the premises, and due process of law against the said —--- in this behalf to be made, to answer to the said Lord the King, by what warrant he claims to have, uso and enjoy the liberties, privileges and franchises aforesaid.”

This is the form, whether the information be brought for an usurpation without any original title, or for a subsequent forfeiture, where the original title is not disputed. (Id. and vid. Co. Ent. 527, 564, per tot. quo. war. v. Mayor, &c. of London.)

The form of the information in The People v. Kip et al. (see 1 U. S. Law Journal, 288 to 290,) was thus:

“ Samuel A. Talcott, Attorney General of the People of the state of New York, who sues for the said people in this behalf, comes here into the Supreme Court of Judicature of the said people, before the Justices thereof, at the Capitol in the city of Albany, on Thursday, the 8th day of August, in the year of our Lord one thousand eight hundred and twenty-two, in this same term of August; and for the said people of the state of New York, at the relation of Jacob Barker, Thomas Hazard, jr. and Thomas M. Huntington, all of the city of New York, in the county of New York, according to the form of the statute in such case made and provided, gives the Court here to understand and be informed, that in and by a certain act of the legislature of the state of New York, passed on the twenty-third day of March, in the year of our Lord one thousand eight hundred and twenty-one, all such persons as then were, or thereafter should become, stockholders, of a certain company, associated under the style of the “ North River Bank of the city of New York,” were ordained, constituted, and declared to be, from time to time, and until the first day of July, in the year of our Lord one thousand eight hundred and forty-two, a body corporate and politic, in fact and in name, by the name of “ The President, Directors and Company of the North River Bank of the city of New Yorkand that, in and by the said act, it was also, amongst other things, enacted, that the stock, property, affairs, and concerns, of the said corporation, should be managed and conducted by thirteen directors, being stockholders and citizens of the said state, and to be elected from time tp time, as in and by the said act was enacted and provided; and that the President, Directors and Company of the North River Bank of the city of New York, by force of the said act, now are, and for one year last past, and moro, have been a body corporate and politic, in fact and in name, by the name of “ The President, Directors and Company of the North River Bank of the city of New Yorkthat is to say, at the city of New York, and in the county of New York aforesaid; and that L. K. merchant, and D. R. merchant, J. C. M. druggist, &c. all late of the city of New York, in the county of New York aforesaid for the space of thirty days now last past, and more, without any legal warrant, grant, or right, whatsoever, have used and exercised, and still do use and exercise, the office of directors of the said corporation, to wit, at the city of New York, and in the county of New York aforesaid; and that each of them hath used and exercised, and still doth use and exercise, the office of director of the said corporation, to wit, at the place and in the county aforesaid; and that the said L. K., D. R., &c. for and durng all the time last above mentioned, without any legal warrant, grant or right, whatsoever, at the city of New York, and in the county of New York, have claimed, and still do claim, to be directors of the said corporation; and each of them hath claimed, and still doth claim, to be a director of the said corporation, and to have, use and enjoy, all the liberties, privilege» and franchises, to the office of directors of the said corporation belonging and appertaining; which said offices, liberties, privileges and, franchises, they, the said L. K., D. R., &c., for and during the whole time last above mentioned, upon the said people have usurped, and still do usurp, and each hath usurped, and still doth usurp, that is to say, at the* city of New York, and in the county of New York aforesaid, in contempt of the people of the state of New York, and to their great damage and prejudice, and also against their dignity.

(Filed August 10th, 1822.)

Samuel A. Talcott, Attorney General.”

The 15 John. Rep. 362, also gives the form of the information, Sec., at length) in The People v. The Utica Insurance Co. See, also, the substance of an information in Connecticut, (The State v. Tudor, 5 Day’s Cas. Err. 329.) It need not show a title. in the people to have the particular franchise exercised; but calls on the intruder to show by what authority he claims it; and if the title set up bo incomplete, the people are entitled to judgment. (15 John. 388, per Spencer, J., who cites 2 Kyd on Corp. 399, and 4 Burr. 2146-7.) The act to incorporate the Utica Insurance Company, passed March 29, 1816, (sess. 39, c. 52,) does not authorize the company to institute a bank, issue bills, discount notes, and receive deposits, such powers not being expressly granted by the legislature, and not being within their intention, as collected from the act of incorporation; and the company having assumed and exercised those powers, they were held to have usurped a fi anchise; and on an information in nature of a quo warranto being filed by the Attorney General, judgment of ouster was rendered against thorn. (Id. 358.) In Massachusetts, the Solicitor General, in an information against one for usurping a public office, recited an order of the House of Representatives, requesting him to file such information, and stated that he' filed it by virtue of, and in compliance with this authority; and, on the ground that the legislature had no right to give this construction, it «as moved to quash the information; but the Court held, that the act of Sing the information should be deemed to emanate from the official auhority of the Solicitor General, who might, ex officio, file the information. Commonwealth v. Fowler, 10 Mass. Rep. 290.) The form of the information is given in that case, with the plea in bar. (Id. p. 295.) Every citizen who pays taxes, has such an interest as will authorize an information in the nature of. a quo warranto, to be filed at his suggestion, to inquire by what authority the collector holds his office.' (Commonwealth v. Browne, 1 Sergt. & Rawle’s Rep. 382.) It may be filed to inquire into the election or admission of an officer or member of a corporation, when moved for by any person interested in, or injured by such election or admission, if it were unduly made. (Commonwealth v. The F. & M. I. Co. in Newlury fort, 5 Mass. Rep. 230.) It may also be moved for by the Attorney General, ex officio, or on the authority of the legislature, but it is confined to one of these three ways. (Id.) One appointed by the executive to an offieo which docs not exist, may bo removed by information in nature of a quo warranto. (The Same v. Fowler, 10 Mass. Rep. 290.)

The general proceeding is by information for the King, by his Attorney General, against any usurper of franchises, &c. to show quo warranto he uses them. (Co. Ent. 527, b.) So against him who exorcises a power unawfully; as, if a Mayor, &c. admits to freedom persons who have no right; for there is no other remedy. (1 Salk. 374.) If the information be for using a franchise by a corporation, it should bo against the corporation. (The King v. Cusacke, 2 Roll. Rep. 113, 115.) If for usurping to be a corporation, it should bo against the particular persons. (Id.) But it will not lie at all, merely for encouraging such an usurpation. (Rex v. Marsden ct al., 3 Burr. 1812.) It will not lie on the relation of an individual against a corporation as a body. This should always bo by, and in the name of the Attorney General. (Rex v. The Corporation of Carmarthen, 2 Burr. 869.) If, on the relation of a private person, it should bo against the several individuals, to show by what authority they claim their respective franchises (Id.) If the information be at common law, there is no relator, nor ought there to be judgment for costs, but only a capiatur pro fine. (Bull. N. P. 211.) It is not necessary to state in the information that leave of the Court was granted to file it. (Cowp. 501.) By the statute, one information may be filed to try the rights of different persons. (1 R. L..108, s. 4.) A quo warranto was brought for vexation, upon forty-eight points, and the Court being moved in it, ordered that the prosecutor should waive that quo warranto, and should bring a new one, and therein insist on only three points, but that he might proceed to trial upon his now quo warranto, in such time as ho might have done upon the old, (Hill, 22 Car. B. R.) to the end that ho might not bo delayed in his proceedings by being put to bring the new quo warranto. (2 Lill. Pr. Reg. 509, B.) On moving to file an information, the Court will judge from all the circumstances of the case who is the real relator. (Per Ld. Kenyon, C. J. in Rex v. Cudlipp, 6 T. R. 509.) It seems that though an information may bo granted on the application of a stranger, yet ho ought to make out a strong case. (Rex v. Kemp, 1 East, 46, n.) An information does net lie against a more servant of a corporation, whoso office does not affect any franchise, or other authority holden under the crown. (Rex v. Bedford Corporation, 6 East, 356.) .

Consolidation.] After rules have been made absolute for several informations, the Court will give leave to consolidate them at the instance of the defendants. (Rex v. Foster, 1 Burr. 573.) But, without the defendant’s consent, the Court will not consolidate several distinct informations for several distinct offices; for there must be an information against each, to enable each to disclaim. (Rex v. Warlow, 2 M. & S. 75.)

Of quashing the information.] This cannot bo done on motion, even with the consent of parties. (Rex v. Edgar, and The Same v. Brickell, 4 Burr. 2297.)

The process.] The principal case decides that this should bo a venire facias and distringas, or subpoena and attachment; and some books speak indifferently of these two kinds of process. (Vid. 2 Kyd on Corp. 438.) In the Commonwealth of Pennsylvania v. Sprenger, (5 Bin. 353,) the Court awarded a venire. In that state the 9 Ann. c. 20, had not been enacted as 1817 88 ate as Serg. & Rawle’s Rep. 52.) In a note by Siderfin, (Be Boy v. Trinity House, 1 Sid. 86,) which is much referred to by the books, he says, it appears, on comparing the precedents in Coke’s Entries, 527, 528, &c. that there is this difference between a quo warranto and an information in nature of a quo warranto, in respect to the process. Upon an information, it seems, the process shall be venire facias and distringas; but upon a writ of quo warranto it is summons ; and for default of appearance, that the liberties shall be seized. The 2 Kyd on Corp. 438, says, the process usually issued to bring the defendant into Court, is a writ of subpoena, and if that be disobeyed, an attachment; but if the defendant cannot be served with a subpoena, it is said, the process is venire facias and distringas ; which looks as if a venire and distringas were to follow a subpoena’; and for this he quotes Sid. 86, which he altogether misapprehends in this place; and at a previous page, 404, he refers to Coke’s Entries, the same authority on which Siderfin relies in his note, and says that, according to these entries, the process usually awarded against individuals is a venire facias which is followed by a distringas ; and in this he is right and according to the entry itself, which at 527, is an award of a venire against certain individuals named, who claim to be a body politic; though from the hasty search which Jt have made, I do not find any entry of a distringas. These entries touching quo warranto are voluminous, and follow from p. 527 to 564, in very large- double folio pages. At p. 536, I find the entry of a distringas as the first process against a corporation, viz. The Mayor, Commonalty, and Citizens of London. This is also mentioned in 2 Kyd, 404. The entry of the, venire' is thus immediately at the close of the information: “ Whereupon the sheriff is commanded, that he cause to come,” or, “ that he omit not, &c. but that he cause to come, &c. to answer, &c.” The entry of the distringas is thus: “ whereupon it is agreed, ([concordat’ est,) that the aforesaid mayor and commonalty and citizens of-be distrained by all their lands, &c. so that, &c. to answer to our Lord the King in the premises, and tho sheriff is commanded, that he distrain them in form aforesaid, so that, &c.” at such a day, &c. (and see 2 Kyd on Corp. 404.) In Rex v. The Mayor and Alderman of Hertford, (1 Salk. 374,) it is said the process is subpoena and distringas. This case was up several times. It is reported in Carthew, 503, as The King v. The Town of Hertford, where it is stated that the first process out of the crown office was a venire facias in the nature of a summons, (though Salkeld says it should be a subpoena.) This venire was followed by a distringas, and an alias and pluries distringas; which was conceded on all sides to he the right course, for though a motion was made to set the writs of distringas aside, this did not relate to thd nature of the process. These writs of distringas and the motion to sot them aside are also mentioned in Holt’s Rep. 320, S. C. entitled as in Salkeld. Com. Dig. Quo Warranto, (C, 2,) says the process is venire and distringas, and cites Co. Entr., 1 Sid. and 1 Salk., supra; and so says 2 Morg. Atty’s Vad. Mec. 106, 107, on the same authorities as Comyn. , But Morgan says, (id. 107,) that the first process against a corporation shall be a summons and afterwards a distringas in infinitum. He says this on the authority of Carthew, supra, where the first process is stated to be a venire in nature of a summons. Thus the venire and distress infinite appears to be the predominant process in all cases ; though in the report of The King v. The Mayor, &c. of Hertford, (1 Ld. Ray. 426,) subpoena and distringas are mentioned as the proper process. In The Commonwealth v. Fowler, (10 Mass. Rep. 290,291,) the process was summons.

How the def endant should be named.] If an usurpation be by a corporation, the process shall be against thorn by their corporate name. (2 Morg. Atty’s Vad. Mec. 107, citing the case of the quo warranto against the city of London, 16, Treby’s Argument.) If it be for usurping to bo a corporation, it shall be against the natural persons who usurp, or by a name which comsrehends them. (Id. citing id. 69, and Pollexfen’s Argument. And see 2 Rolle. Rep. 115.)

Teste and return of process.] In The King v. The Town of Hertford, (Carth. 503,) the venire was returnable in Easter term, 11 Will. 3, upon which a distringas issued, returnable crast. Trinity; and upon that return a second distringas was made returnable in fifteen days, in the same Trinity term; and upon this being returned, a third distringas was made, tested in that term, and returnable in Mich, term, Anno 11 Will. 3; and it was moved that the two last might be set aside for irregularity; for that the process in these cases should be made returnable de termino in terminum, and not quicker; but that in Trinity term there issued two writs of distringas, which should not be ; and above forty precedents to this effect, -in the crown office, were insisted on. But Holt, Ch. J. answered, that crown office work was, like church work, very slow in its progress, it being usual far clerks to make all such process out together, and of the same teste and return from term to term ; but no law required that it should be so ; and the motion was denied. (2 Salk. 699, S. C. and S. P. 1 Ld. Raym. 426, S. C, and S. P.;

Of the issues upon the distringas.] It was moved in the last case that the Court would make a special rule to entreat the issues upon the several writs of distringas, but no such rule was made ; but the issues were left to be estreated in due time, according to the course of the Court. And in the report of the same case in Holt, 320, this estreating in due time is said to be to send them up into the Exchequer the last days of the two issuable terms though the Court agreed, that in an extraordinary case' they might make a rule for this purpose.

Of the seizure nomine districtionis for non-appearance.] As the process in the proceeding by quo warranto was dilatory, while this was conducted before the old Justices in Eyre, if the party did not appear at a certain stage, the franchise or subject of the writ might be seized, on process to the Sheriff, as a distress, and the defendant was put to come in and replevy it, as he would any other distress. When the Justices in Eyre ceased, and the jurisdiction of this writ passed to the King’s Bench, the same practice prevailed there, and some of the ancient cases look as if the franchise, &c. should be forfeited forever, unless it was replevied at a short day ; though by a modern case, which underwent much discussion, and was finally determmcd by the Lords, on writ of error,’ it was held that this hud never been the law. But it was agreed by the same case, that the subject of the suit might be seized. The argument for tho conclusive effect of ihe seizure, was founded principally on the Year Book, 15 Ed. 4, which is there reported at length ; but the summary given by Jenkins, in his Centuries, 141, and vid. 2 Kyd on Corp. 502, S. C. is thus: “ A quo warranto is brought in the- King’s Bench ; the defendant being summoned makes default; and another default at the return of the venire facias; judgment shall bo that the franchise shall be seized into tho King’s hands; arid not that it shall bo forfeited; for it does not yet appear whether there bo cause of forfeiture. No man shall finally lose his land, or his franchise, on any default, if he has never appeared.” And with this summary the parliament agreed. In that case a judgment was given, that the market aforesaid he taken and. seized into the King's hands, quousque, &c. (2 Kyd on Corp. 497.) And the Sheriff was commanded to seize tho market, according to tho form of tho judgment aforesaid, &c. and to show, at the next term, how he executed the writ; when he-returned that he had seized the market into tho King’s hands, according to the-form of the writ. (Id. 498.) This' same practice was introduced upon the information in- nature of a quo warranto; and a similar judgment was given and executed, upon such an information, against the city of Chester, in Hil. Term, 35 and 36 Charles the 2d, the form of wliich see in 2 T. R. 518. (2 Kyd on Corp. 494,- S. C.) Tho. judgment there was of seizure,. quoMsgue, &c.-i. e. until the said Court shall further order. The great and labored cause of The King v. Emery, (2 T. R. 515, 569,) turned mainly upon the effect of this judgment. The King’s Bench hold it final; but afterwards, in,parliament, tho judgment was reversed, a note of which reversal is in 4 T. R. 122,-but no part of the case .there given. Tho report of the case in the House of Lords, on error, occupied two vols. quarto; but a sufficient abstract, as to this point, is in 2 Kyd-on Corp. 496 to 511. At page 510, the Chief Baron Eyro, who delivered tho opinion of tho House of Lords, said he conceived the effect of the judgment and seizure by the Sheriff, laid the King's hands on tho franchise of being a. corporation, and upon other franchises in the information,-so that tho corporation could not use its liberties ; the action of its vital powers was suspended ; and in this situation he had -no doubt that a custos might bo appointed ; that -the corporation in that case might have been restored, on paying a fine to the King,'and were restored by pardon, &c. (See an examination of this question, at large, with all the cases, in The King v. Emery, above cited from 2 T. R. 515, and 2 Kyd on Corp. 496, &c.)

Whether the defendant can he pursued to outlawry.] Vid. 2 Kyd on Corp. 438, 439, who concludes that he may.

Who may defend.] If tho defendant suffer the rulo to show cause to-be made absolute, or suffer judgment by default, others whose titles may be affected by the judgment may-be let in to defend his title, on undertaking to-do this at their own expense, and indemnifying him against all costs, &c (Bac. Abr. Informations, (D,) 3 T. R. 310.)

• Time to plead.] The Court -may allow- to -each, as well, prosecutor as defendant, such convenient time to plead, reply, rejoin- or demur, as they shall think reasonable. (9 Ann. ch. 20. 2 Lilt. Practical Register, 510, (B,) and see tho next head.) To this effect is the stat. 1 R. L. 109, s. 6.

Imparlance.] There is an entry of this, 15 John. 363. The People v. The Utica Ins. Co. In Herring v. Brown, Comb. 11, 12, Williams moved, for a second imparlance in a quo warranto, and.said it was granted in tho case of the city of London; but the Court denied it; for Astry said by,tho. course of the Court, they were to have but the common imparlance; and per Cur. being ex gratia, we may grant or deny it as we see cause. See the next previous head of time to plead.

Of the plea.] The defendant may plead in abatement; but he must verify it by affidavit as in other cases, of dilatory pleas, (1 R. L. 524, s. 23. 2 Kyd on Corp. 439. Rex v. Jones, 2 Str. 1161;) and this must he entitled. (2 Str. 1161.) Whether he may plead a misnomer in his addition? Quaere. (Vid. 2 Kyd on Corp. 438, 439, and Rex v. Mayor of Hedon, 1 Wils. 244, as to the right of outlawry, upon which such a. plea seems to depend.) There is such a plea in 6 Went. Plead. 51.

The statute, (4 Ann. ch. 16, s. 4; 1 R. L. 519, s. 9,) allowing the defendant to plead more than one plea, with leave of. the Court, does not.extend to informations in nature of a quo warranto. There is no instance in which the Court have given such leave, (Rex v. Newland, Sayre’s Rep. 96,) and see what is said by Sir Fletcher Norton, and Lord Mansfield,.in Rex v. Leigh, (4 Burr. 2146,) and a note to that case which mentions Rex v. Brisco, as going to the same point with Sayre. But under, the statute 32 G. 3, c. 58, s. 2, tho defendant may plead several pleas. (Rex v. Autridge, 8 T. R. 467.) This statute is there recited in.a note, There is no such.statute in this state. As to the construction of that statute, see Rex v. Stokes, (2 M. & S. 71.)

The plea in bar should set out the defendant’s title at length, and conclude with a general traverse, “ without this, that he usurped, &c.” (Rex v. Blagden, Gilb. Rep. 145,). And where the title set forth is bad, but the, user confessed, this amounts to a confession of the usurpation, (Rex v. Philips, l.Str. 394, 397, cited 1 Burr. 302, 305.) The defendant may either disclaim as to all the franchises mentioned in.the information, or plead as to all; or.plead as to part and disclaim as to part. (2 Kyd on Corp. 405.) The English entry of a disclaimer as to all is thus:

“ The said--, protesting that, the information aforesaid is not sufficient in law, and that he 13 n°t under, any necessity hy the law of the- land to answer thereto, for plea nevertheless, saith, that he never used the.aforesaid, liberties, privileges and franchises, or any of them, nor in the same or any of them, ever usurped .upon the said Lord ; the King, in manner, and form as by. the said information is supposed, but ip the same, .and in every of them, disclaims and disavows, whereupon he prays judgment, and that he may be dis-, missed by the Court” (Co. Ent. 527. 2 Kyd op Corp, 405.)

If he plead as .to part and disclaim as to part, the entry of the disclaimer, after the plea, is thus :.

“ Apd as to the residue of. the liberties, privileges and franchises, in the said information-above specified, upon the said .Lord, the King supposed to be usurped by the said-, the said says, that he never used, nor does he now use the residue, &c.” (Co. Ent. 529. 2 Kyd on Corp. 405:)

Where the defendant pleads, the entry is thus:

“ And the said-, as to the aforesaid liberty, &c. of-, [there he sets out his title to the particular franchise ; and so of every other claimed hy a distinct title, and concludes his plea, as to each, in this manner;] “ and by this warrant the said :-has used during all the time aforesaid, in the said information mentioned, and still uses the liberties, privileges and franchises of-•, as he well might and still may; without this, that the said-.— has usurped, or now does usurp the said liberties, &c. on the said Lord the King, in manner and form as by. the information aforesaid, for the said Lord the King, is above supposed': all which the said- is ready to verify, as the Court, &c. whereupon he prays judgment, and that all and singular the liberties, &c. above by him as aforesaid claimed, may be allowed and adjudged to him, and that he may thereupon be dismissed from this Court.” (Co. Ent. quo. war. per tot. 2 Kyd on Corp. 406.)

A variety of English forms for these pleas are in 6 Wentw. Pleadings, 28 to 242, among which are a plea in abatement for a wrong addition, p. 51; of disclaimer, 83 ; that the defendant was elected by a casting vote according to custom, 29, 36 ; a custom on vacancy to elect a commonalty steward, and that the defendant was duly elected, 82; plea"setting out a charter and the defendant’s regular election, 150 ; the like, setting out a by-law, 157 ; with other pleas reciting customs, usages, by-laws, &c. from 28 to 242. For form of plea hi New Jersey, see The State'v. Foster, (2 Halst. 101.) The substance of a plea in Connecticut, see The State v. Tudor, (5 Day’s Cas. Err. 330.) For the form of a plea in this state, see The People v. The Utica Ins. Co. (15 John. Rep. 363 to 365,) setting forth the title to a franchise under an act. The plea was adjudged insufficient in substance. The form was not questioned.

The plea in The People v. Kip et al. was thus:

“ And now in this same term, the said L. K., D. R., &c. come by Charles 6. Haines, their attorney; and having heard the said information read, they say, that under color of the premises contained in the said information, they are greatly troubled; and this, by no- means justly; because protesting that the said information, and the matter therein contained, are not sufficient in law, and that they are not obliged by the law of the land to answer thereto, for plea they say, That they do not think that the said people ought to impeach or trouble them by reason of the premises in the said information mentioned and specified: because, they say, that true it .is, that in and by a certain act of the Legislature of the state of New York, passed on the twenty-third day of March, in the year of our Lord one thousand eight hundred and twenty-one, all such persons as then were, or thereafter should become, stockholders of a certain company, associated under the style of “ The North River' Bank of the City of New York,” were ordained, constituted, and declared, to be from time to timo, and until the first day of July, in the year of our Lord one thousand eight hundred and forty-two, a body corporate and politic, in fact and in name, by the name of “ The President; Directors and Company of the North River Bank of the City of New York and in and by the said act it was amongst other things enacted, that the stock, property, affairs, and concerns of the said corporation, - should bo managed and conducted by thirteen directors, being stockholders and citizens of the said state, which directors should hold their offices from the first day of July in every year, and should be elected on the first Monday of June in every year, at such time of the day and in such place, within the city of New York, as a majority of the said directors for the time being should appoint; and that public notice should be given by the said directors, not less than fourteen days previous to the time of holding the said election, by an advertisement to be inserted in at least two of the public newspapers printed in the city of New York ; and that the said election should be made by such of the stockholders of the said corporation, as should attend for that purpose, either in person or by proxy; and that all elections for the directors should be by ballot, and that the thirteen persons who should have the greatest number of votes, should bo directors; and that L. It., D. R., T. B., &c. should bo their present directors, and should hold their offices respectively until the first Monday of July, in the year of our Lord one thousand eight hundred and twenty-two. And further, that the directors for the time being or a majority of them, should have power to make and prescribe such by-laws, rales and regulations, as to them should appear needful and proper, touching the government of the said corporation, the management and disposition of the stock, business, property, estate and effects of the said corporation; the time, manner and terms, at and upon which discounts and deposits shall be made and received in and by the same; the duties and conduct of the officers, clerics and servants employed ; the election of directors, and all such other matters as might appertain to the concerns of the institution; and should also have power to appoint so many officers, clerks and servants, for carrying on the said business, and with such salaries and allowances, as to them should seem meet; provided, that such by-laws, rules and regulations, were not repugnant to the constitution and laws of the United States and of this state ; and provided also, that the said directors should keep open the said bank for discount as well as deposit, every day, (except Sunday,) during the usual business hours. And these defendants further say, that The President, Directors and Company of the North River Bank of the City of Now York, now are, and for one year last past, and more, have been a body politic and corporate, in fact and in name, by the name of The President, Directors and Company of the North River Bank of the City of New York; that is to say, at the city of New York and in the county of New York aforesaid. And these defendants further say, that heretofore, to wit, on the twenty-sixth day of March, in the year of our Lord one thousand eight hundred and twenty-two, the directors of the said corporation, did make a certain by-law, in the words following, to wit:

“ ‘ Be it ordained by the President, Directors and Company of the North River Bank of the City of New York, and it is hereby ordained by the authority of the same, that an election shall be held for thirteen directors of this corporation, being stockholders thereof, and citizens of this state, on the first Monday in June next, and on the first Monday in June in every year there* aftér, between the hours of eleven o’clock in the forenoon, and two o’clock in the afternoon, at the banking-house of this corporation, in the. city of New. York; and that public notice of the time and place of every such election shall be given not less than- fourteen- days previous to the time of holding' the. same, by an advertisement to bo inserted in at least two of- the public news-: papers, printed in the city of New York; and every such election shall bo by ballot, and shall be made- by-'such of' the stockholders of this, corporation, as: shall attend for-that purpose, either in person or by proxy: and the thirteen' persons who shall have the greatest number of- votes» shall' bo directors; and three persons» being stockholders of this corporation, and citizens of this state,. to be previously appointed by the directors, for the' time being, shall be inspectors of every-such • election, and - shall preside at, and hold1 the - same, and shall certify to the directors at the next meeting, the names of the person»elected at such election.

“ ‘ And be it further ordained, that if" it shall at any time happen that an election of directors shall not be made on. the first Monday in Juno, in any-year, that then an election shall be held as soon as conveniently may be thereafter, on such -day as the' president shall -appoint, which election shall - be held at the said banking-house, and between the same hours of' the day as are above mentioned; and three inspectors of such election, being stockholders and citizens as aforesaid, shall bo appointed by the president, who shall perform the duties assigned to the inspectors above mentioned. And fourteen days: notice- of-, such election shall - be given in.-the manner, above directed, in relation to-the elections - to- bo held 'on the first Monday in June. And in case-the office of: president shall be vacant; then .the day, of election, " and the inspectors thereof, shall be appointed in like manner by- the cashier for the time being/’

« And these- defendants further say, that afterwards, to wit, on, the. thirty-first day-of- May, in the year-last" aforesaid» the said-directors did.appoint D. B.» W» R and D. D. S. to-be inspectors of-the then next election -for- directors-of" the said- corporation. And these defendants further say,. that each of thesaid inspectors, JD.- B., W: Ri &c: then-was» and ever since, hath been, and yet-is, a. stockholder of the said bank, and a citizen of. the said state" of New York, to wit, attihe city and county of New York. And these defendants further say, that the said: directors.- did cause public notice to be given of the-said election, .and. of the timo- and place, of holding the same fourteen days previous-to. the first-Monday of-June, in the year last aforesaid, being the time of. holding the said: election, .by an advertisement inserted in two of the public - newspapers - printed in the city-of- New York, to wit, in. public newspaper printed in the said city, .entitled - the . New- York Evening Post; and in a certain other public newspaper- in the - said city, called the National "Advocate.. '

“ And the said defendants further say, that an election for- thirteen directors of the said corporation .was held, before the said inspectors, on the first Mbnday of. June;. in the year: last- aforesaid,. between - the. hours- of eleven o’clock in the forenoon, and two o’clock in the. afternoon of that day, at the- banking-house of the-said, corporation,-in the city-of New York, and that an election- of. thirteen: directors was.: then, and there made, pursuant to the said act, by such of tho stockholders of the said corporation, as did then and there attend for that purpose, in person or by proxy; and that the said election was by ballot; and that at such election tho said L. K., D. R., J. C. M., &c. had the greatest number of votes; and that at the next meeting of tho directors, to wit, on the third day of Juno, in tho year last aforesaid, at the city of New York aforesaid, the said David Board, William Roe, and Daniel D. Smith, did deliver to the said directors a certificate in the words following, to wit:—“ We the subscribers, inspectors of election for thirteen directors, to conduct tho stock, property, and affairs of The President, Directors and Company of the North River Bank of the City of New York, for the ensuing year, do certify, that the said election was this day held under our inspection ; and that on canvassing the votes taken by us, it appears that L. K,, D. R., J. C. M., &c. were the thirteen persons who had tho greatest number of votes, and are electedwhich foregoing certificate was dated the third day of June, in tho year of our Lord one thousand eight hundred and twenty-two. And the said defendants further say, that afterwards, to wit, on tho first Monday of July, in tho year last aforesaid, they did, in pursuance of tho said act, take upon themselves respectively, tho office of directors of the said corporation, to wit, at the city and county of Now York aforesaid; and by virtue of tho premises, they then and there became, and on tho first Monday of July, in the year aforesaid, at tho city and county aforesaid, and from thence continually until the time of exhibiting the said information, were, and still are, directors of the said corporation, to wit, at the said city and county of New York; and by that warrant, tho said defendants, for and during all the time in the said information in that behalf specified, at the said city and county, have respectively used and exercised, and still do use and exercise, the office of directors of the said corporation; and for and during all that time, have there claimed to be such directors, and to have, use, and enjoy all the liberties, privileges and franchises, to the said office belonging, as it was and is lawful for them to do:—Without this, that the said defendants, the said office, liberties, privileges, and franchises, in the said information above mentioned, or any of them, have usurped, and did usurp, upon the people of the state of New York, in manner and form as by the said information is above alleged against them ; all and singular which matters and things the said defendants are ready to verify and" prove, as the Court shall award: Wherefore they pray judgment, and that the said office, liberties, privileges, and franchises, by them claimed in manner aforesaid, may be allowed and adjudged to them ; and that they may bo dismissed and discharged by the Court hereof, and from the premises above charged against them.

C. G. H. Attorney for defendants.

This suit was settled immediately after plea. (Vid. 1 U. S. Law Journal, 284.)

It is not sufficient for the defendant, in a qua warranto, to plead that such a subject hath a lawful interest to hold a loet, without making any title to himself ; for tho writ is quo warranto he claims, &c. (2 Leon, case, 31 Nor is it enough to plead non usurpavit libértales prendidas, but the pies should also say nec earum aliquam. (3 Leon, case, 135. The defendant must either justify or disclaim; and not guilty and non usurpavit are not good pleas; for they do not answer to the nature of the charge which is to show by what warrant or authority. (Bull. N. P. 211. Ca. K. B. 225.) The defendant should show a full title to himself. (Com. Dig. Quo Warranto, (C,) 4, cites 9 Co. 24, b. 2 Leon. 28. Hardr. 456.) As if the King grant bona felonum, or other franchises, which lie in charter, to an Abbot, &c. whose possessions come back to the crown, and the King re-grants buna felonum, &c. adeo plane prout abbas habuit; in a quo warranto against the grantee, he should plead the first grant to the Abbot, the re-union in the crown, and afterwards the re-grant, &c. (Id. cites R. 9 Co. 26, a., per Popham. 2 J. Cont. Mo. 297.) In pleading the King’s charter, he ought not to say he granted and confirmed, for this is double. (Id. cites Sid. 86.) In pleading the grant of an office, he should show it an ancient office, (id. cites 1 Sid. 86, and qualifies it with semble;) and allege the thing done to bo appurtenant to his office, (id. cites 1 Sid. 86;) and in pleading a grant to an Abbot he should show for what estate. (Id. cites R. Mo. 297.) In pleading a privilege to himself as copy-holder, he should plead it in him who has the freehold at least. (Id. cites R. Yel. 191.) But it s sufficient that the plea be as general as the information; as if a quo warranto be for using a market, toll, &c. it is sufficient to make title to the market, toll, &c. without saying how much the toll was. (Id. cites Palm. 81.) If he claim a franchise as appendant to a manor which came to the King by the attainder of B. and afterwards was granted to him, it is sufficient to say that B. fait debito modo attindus. (Id. cites 3 Leon. 72, semb.) So if he claims franchises by prescription, and others by charter, he may conclude eo warranto utitur generally ; for it shall be taken distributively. (Id. cites R. Mo. 398.) That a man may prescribe tañere plácito, but not to have cognizance of pleas, &c. and as to the distinction between what may be prescribed for, and what must be pleaded by way of grant, see 1 Salk. 183-4; Bull. N. P. 212 ; 5 Co. 109 ; 9 Co. 24. Several general rules relative to pleading are laid down in Sir Edmund Bacon’s case, (Latch. 45,) which was quo warranto; but as they are equally applicable to other cases, they are found in the books upon pleadings in general. And see also the various cases collected in Keilw. from 137 to 158. Cro. Car. 311, pi. 2. Rex v. Knight, 4 T. R. 419, 425. Rex v. Birch, 4 T. R. 608. Rex v. Clarke, 2 East, 75. Rex v. Mein, 4 T. R. 480, for cases of and pleadings in quo warranto, relative to various corporate titles.

Replication and demurrer.] After plea, the Attorney General demurs or replies, and the subsequent proceedings are in the same manner as in civil actions. (2 Kyd on Corp. 406.) Where several things are necessary to constitute a complete title in the defendant, the crown may take issue on each, and if any one of the issues, on a fact material to the title, be foimd against the defendant, there shall be judgment of ouster, and the defendant shall pay the costs on all the issues. (Bac. Abr. Informations, (D) cites Rex v. Hearle, 1 Str. 627. 2 Ld. Raym 1447. Rex v. Downes, 1 T. R. 453.) The replication should not take issue on the general traverse, “ without this, that he usurped, &c.” but should bo to tho special matter, that tho defendant may know how to apply his defence. (Id. cites Rex v. Blagden, Gilb. Rep. 145.) The Court will not interfere summarily to set aside a replication because it goes to a point not insisted on in the information. (Rex v. Brown, 4 T. R. 276.)

For English forms of replications denying customs, usages, &e. see 6 Wentw. Plead. 28 to 242, at different intervals. For domurrers, id. 113, 106, 62, 52, 152, &c. Also, The People v. The Utica Ins. Co. (15 John. Rep. 265.) Whether the prosecutor can demur to part of the plea and reply to the rest ? quiere ? (Rex v. Ginever, 6 T. R. 733, note.) Semb. he may demur to the whole and plead to particular parts. (Id.) Form of replication in New Joreoy, (The State v. Foster, 2 Halst. 101.)

Rejoinder and joinder in demurrer.] For forms of rejoinder see 6 Went-worth’s Plead. 58, &c.; of joinder in demurrer, (The People v. The Utica Ins. Co. 15 John. Rep. 365. 6 Wentw. Plead. 114, 62, 52, 152, &c.) Rejoinder in New Jersey, (The State v. Foster, 2 Halst. 103.)

Surrejoinder.] For the form of this, see 6 Wentw. Plead. 58. Rules to plead, reply, &c.] These are of course, and tho same, as in ordinary proceedings. {The Peoples Clark, ante, 95.) In England they have rules to plead peculiar to this and tho like informations, grounded on tho practice of the crown office. But they are rules of course. The practico there is fully exhibited in Rex v. Ginever, (6 T. R. 594,) and the notes there.

Suggestion that Sheriff is interested and prayer that distringas may he directed to a coroner,] 6 Wentw. Plead. 106-7.

* Of amending the pleadings, and other proceedings^] These are the same as in ordinary actions; rules of course may be entered for this purpose; in tho same maimer. {The People v. Clark, ante, 95.) And amendments on special motion appear to have always stood on the same footing as in other actions. (Com. Dig. Quo Warranto, (C, 4.) Sid. 54. Rex v. Blatchford, 4 Burr. 2147.) Indeed, there is greater reason for allowing the defendant to amend his plea, or withdraw and substitute another, as he cannot plead double; and this matter was so considered in Rex v. Blatchford, (4 Burr. 2147,) where the defendant was allowed to withdraw his plea and plead da novo just before the trial, upon payment of costs, pleading within a week, and taking short notice of trial, with liberty for the prosecutor to reply de novo, and this was done without affidavit of any particular circumstances, or any particular reasons given for the amendment. (See the opinion of Lord Mansfield on that motion, id. 2148.) The Attorney General was allowed to amend the information by adding a new count, on motion. {The People v.

Clark, ante, 95.) The statute of amendments and jeofails, are extended to all the proceedings on informations in nature of a quo warranto. (1 R. L. 117, 121, s. 10.)

Trial and evidence.] The practice and rules relative to these aro generally the same as in ordinary cases. What is peculiar as to evidence arises mostlv out of the law touching the old British corporations, and has little application here. Buller, in his Treatise of Nisi Prius, 211, 12, 13, has col-meted a few cases of this kind, only three of which, from 4 Co. 78, Comb 316, and 1 Salk. 168, properly come under the head of evidence The others more properly belong to a treatise on corporations- Other cases of evidence, peculiar, to this proceeding, are Rex v. Hebden, 2 Str. 1109, and see Andr 389. Rex v. Grimes, 5 Burr. 2598, 2601. Rex v. Spearing, 1 T. R. 4, n Cowp. 503, 507. Rex v. Mein, 3 T. R. 596. 4 T. R. 480 Rex v. Robins, 2 Str, 1069. Cowp, 502. Doug. 374.

There is now no doubt that a new trial may bo granted, be the verdict for the people or defendant. (2 Kyd on Corp. 445.) And vid. Rex v. Ben net, 1 Str. 101. Rex v. Corporation of Brecknock, 8 Mod. 201. Rex v Francis, 2 T. R, 484. 3 Wood. Lect. 355.) But a new trial will not be granted for misdirection, where it appears that the term of office, in the defendant, respecting which the information was filed, has expired, and a new annual election of officers made. (The State v. Tudor, 5 Day’s Cas. in Error, 329.) Where the issue is. on the legality of the election, evidence may be given of conversations and transactions previous to the election, if they were connected with, and might have an influence on it, though no previous notice thereof has boon given. (The Commonwealth v. Wclper, 3 Sergt. & Rawle’s Rep. 29.) The place where the process should be returned and trial held ; see Commonwealth v. Smead, (11 Mass. Rep. 74.) Motion for a new trial for variance between pleading and proof, &c. Rex v. Rowland, (3 B. & A. 130.) The Court will order a change of venue on the ground of local prejudice. (Rex v. Emery, 1 T. R. 363, &c. 3 Wood. Lect 341.) And the Court may, in its discretion, order a trial at bar. (The King v. Emery, 1 T. R. 363.)

Bill of exceptions.], For this a form. is given in 6 Wentw, Plead. 130) 133.

Posteal} For a form,of this, see. 6 Wentw. Plead. 240.

Repleader.} Where the- defendant pleads a bad title, which results hi an immaterial issue, and a verdict for him, the rule, .as to awarding a repleader, is. the same as. in ordinary actions. (1 Str. 394, 397, cited' 1 Burr. 302, 305.).

The judgment,} This seems to be the same, and subject to. the same-varieties, at common law, as on the writ of quo warranto. (2 Kyd on Corp. 406.) If given, for the defendant, the entry is thus:

“ It is considered that the liberties,.&c. be allowed to the said-or thus: “ the said.--— may use, have and-enjoy all the.said, &c.and the sajd—,-, as to the said premises, may be dismissed from this Court, bavins always the right of the said Lord, the. King, if hereafter, &c.” (Id. cites Co. Ent, 535, b., 537, a. Rast, 540, b.)

“ This salvo jure for the King, says Lord "Coke, serveth for any other title than that whi.ch was adjudged ; and therefore William de Penrugge, the King’s Attorney, for prosecuting a quo warranto against the Abbot of" Fiscliamp, for franchises within the manor of Steyning, sine pr acepto, was committed to jail” (2 Inst- 282.J

If- the defendant’s plea be confessed, the. judgment is to allow the franchises, (Com Dig, Quo.Warranto, (C, 5,) cites Co. Ent. 535, b., 537, a,, 549, 564,). But. a, confession by the Attorney Genera, does not bind the King,where the matter is not private, but concerns the public (Id. cites 1 Rol 112.) So a confession by the Attorney General, if it be not after plea upon record, does not bind the King. (Id. cites Sav. 19, semb.) So a confession by the Attorney General does not conclude the King or the' Court, in a point of law, but only as to the fact, (id. cites 2 Bulstr. 296 ;) as to which a judgment is conclusive against the King, (Hardr. 129,) and generally on a judgment against the King in this proceeding, he is forever bound. (1 Rol. Rep. 112.)

On disclaimer, by the defendant, the Attorney General prays, “ that whereas the said-, by his plea, has disavowed and disclaimed all and singular the liberties, &c. above specified, judgment may bo given for the King, and that the said-, with the said liberties and franchises, or any of them, may no way intermeddle, but may hereafter be altogether excluded from the same,” and, judgment is accordingly given in that form. (2 Kyd on on Corp. 407. Co. Ent. 27, b.)

With respect to the form of the judgment for the King, at common law, there are several nice distinctions, and considerable dispute in the books ; as whether it should be of seizure, ouster, or mixed of both ; and whether it should bo of capias pro fine, or quod sit in misericordia, &c. but, to all practical purposes, these distinctions are, I conceive, abolished by the statute of this state, (1 R. L. 108, s. 5,) which declares the form of the judgment for the people. As the curious reader may, however, desire to look into the common law cases on this head, he will find them fully collected and briefly stated in 2 Kyd on Corp. 407 to 409. There cannot be judgment against a corporation, but in their politic capacity. (4 Mod. 58.)

Judgment is for costs against the relator or defendant, according to the event of the suit. (1 R. L. 108-9, s. 5.)

Where several things are necessary to constitute a' complete title in the defendant, the Attorney General may take issue on each; and if any one of the issues on a fact material to the title be found against the defendant, judgment of ouster shall be given against him. As where being elected and sworn are both necessary to the. title, and the jury find against the being sworn, and for the election.. (Rex v. Hearle, 1 Str. 582, 625, 627. 2 Lord Raym. 1447.) This is affirmed on error, and is recognized in Rex v. Reeks, 2 Lord Raym. 1447 ; and see also Rex v. Latham, 3 Burr. 1485,1487, per Lord Mansfield, at the last page. It is said in the 2 Lill. Pract. Reg. 509, C, that if several privileges are granted in a charter, and filero is a forfeiture of the charter, for an abuser of one of the privileges, and a quo warranto is brought, and judgment upon it, this is a forfeiture of the whole charter.

Upon information in nature of a quo warranto against one for claiming the office of alderman, if he disclaim, and judgment of ouster bo given against him, he ■ is concluded from showing to a second information for exercising the same office, that he was duly elected before such first informatipn and. judgment of ouster, and that he was afterwards sworn in by virtue of a peremptory mandamus. But, semble, if the election to the of¡ fice' were good, and only the first swearing in irregular, the first judgment should not have been an absolute judgment of ouster; but either a judgment of capiatur pro fine only, for the temporary usurpation, or a judgment quousque, &c. (The King v. Clarke, 2 East, 75, and see 2 Str. 952.) If judgment be against the principal franchise ail incidental and subordinate franc11"ses are also gone. (Palm. 82.) The judgment in a quo warranto is final; for it is in nature of a writ of right. (1 Sid. 86.) A judgment quod capiantur amounts to the same thing as a judgment quod capiuntur in the indicative mood, like the judgment in debt quod recuperet, which is the same with quod recuperat, (said arguendo, in Sir James Smith’s case, Garth. 218, as appears by the following entries and cases: Rast. Ent. 54. Co. Ent. 538, 559. 9 Rep. 98. 15 Ed. 4, 7. Ryley, 277. Maynard’s ed. 2, 16, 24.) What judgment may bo given in Massachusetts, see Commonwealth v. The U. F. M. I. Co. of Newburyport, (5 Mass. Rep. 230,) and The same v. Fowler, (11 id. 339.)

For forms of judgment see 6 Wentw. Plead. 13, 89, 161, and 242. The form of the judgment in Massachusetts is given at length in The Commonwealth v. Fowler, (11 Mass. Rep. 339,) as drawn up under the direction of the Court.

Judgment rolls complete. 6 Wentw. Plead. 234 to 242, contains the roll from the placita to the judgment. So id. 153 to 161.

Costs.] In England costs are not given against the defendant, except where the information relates to a corporate office; but this is upon the particular wording of the statute, 9 Ann. ch. 20, which is clearly not sc broad as the New York statute. (Rex v. Wallis and Barrs, 5 T. R. 375., The Court will not stay proceedings until the prosecutor give security for costs on the ground that the relator is in insolvent circumstances, where it appears that he is a corporator, and no fraud, is suggested. (Rex v. Wynne, 2 M. & S. 346.) The statute 9 Ann. c. 20, had not (in 1817,) been re-enacted in Pennsylvania, and it was therefore held in The Commonwealth v. Woelper et al. (3 Sergt. & Rawle’s Rep. 52,) that neither party could recover costs, the information being at common law.

Execution.] If judgment be for the people, the regular course is, to issue a writ of seizure to the sheriff, which, after reciting the proceedings, commands him to seize the liberties into the people’s hands, (vid. 2 Kyd on Corp. 410, cites Co. Ent. 539, b.;) and thereon the sheriff shall return a seizure. Co. Ent. 540, b.) But this writ, in point of fact, has not always issued. (2 Kyd on Corp. 410.) The usual process by fi. fa. or ca. sa. goes for the costs, either against the relator or defendant, according to the event. (1 R. L. 108, 109, s. 6.)

Writ of error.] For the form of this writ, see 6 Wentw. Plead. 153. This is a writ from the K. B. to Parliament.

Return thereto.] Same book, 153.

By an act passed April 21st, 1825, (since writing the above,) one of the Justices of the Supreme Court may, in vacation, grant leave to file an information in nature of a quo warranto against any corporation, on notice or otherwise, in his discretion; on filing which, the Attorney General may issue process. On this process being returned duly served, the Clerk may enter the defendant’s appearance ; whereupon, the proceedings against them shall be the same as in the case of private persons. When an issue of fact is joined, the cause shall be entitled to a preference at the Circuit and, on its coming before the Supreme Court, on demurrer, special verdict, bill of exceptions, demurrer to evidence, or case, it shall bo preferred, so that it may be argued and determined at the term for which it shall bo noticed.

The Supreme Court, on the application of any person or persons, natural

or corporate, who may be aggrieved by, or complain of any election, or any proceedings, act or matter, in or touching the same, on notico, shall proceed in a summary way to hear the affidavits, proofs and allegations of the parties, or otherwise inquire into the matter or cause of complaint; and thereupon establish the election so complained of, or order a new election, or make such order and give such relief, in the premises, as right and justice may appear to require; and may order an issue or issues to try the rights of the parties to the office, offices or franchise in question, or may give leave to the Attorney General to exhibit an information or informations in nature of a quo warranto, pursuant to the act for rendering the proceedings upon writs of mandamus, and informations in the nature of a quo warranto, more speedy and effectual, passed 6th February, 1788.

In case any such issue shall be ordered, or any such information bo permitted to be filed, it shall be lawful for the Court to make such further order, for prescribing and limiting the times for the respective parties to plead and proceed therein, and for giving preference to any issue, to be made up or joined therein, and for expediting the ulterior proceedings, if any, so as to cause tho same to be proceeded upon, and the final, determination thereon to bo had, with the best and most convenient speed that may be ; and the Court shall cause the same to be expedited by all such ways and means, as a due regard to the ends of justice will admit, and the case may require.

On information by the Attorney General against a corporation, or any person or persons claiming to be a corporation, or to be officers of a corporation, if judgment shall finally pass against the defendants, full Supreme Court costs shall be awarded, to be collected by execution or attachment.

As this act relates merely to the mode of proceeding against corporations or corporate offices, the ancient practice, it will be perceived, must still be resorted to in all other cases.