mit another having lawful claim; but by information in the nature of a quo warranto.1

4

5

$ 4. 1. Where the attorney-general files an information er officio, we have seen that it is not necessary for him to obtain the leave of the court. But informations at the suit of private persons, whether under the statute of Anne,' or the statute of New York, or exhibited as at the common law, can be filed only by leave of court. The information is not granted of course, but depends upon the sound discretion of the court, upon the circumstances of the case, and will not be granted, where, as in case of a turnpike company opening a road through the land of a person without making him a compensation pursuant to the direction of the act, there is an adequate remedy by action. It would seem, that previous to the 4 and 5 William and Mary, c. 18, all the king's subjects might make use of the name of the clerk or master of the crown office, in filing informations as at common law, without the leave of the court;' but that statute restrains the clerk of the crown office from exhibiting or filing informations, without the express order of the court. In analogy to this statute, and the statute of Anne,

The People v. The Corporation of New York, 3 Johns. (N. Y.) Cas. R. 79; The People v. Hillsdale and Chatham Turnp. Co. 2 Johns. (N. Y.) R. 190. For cases in which the information will lie, see 4 Cow. (N. Y.) R. 101, n. a.

2 Ante, § 2.

Ante, § 3, n. 1.

4 1 R. L. (N. Y.) 108, § 4.

5 Bac. Abr. Informations, D.; The King v. Trevenen, 2 B. & A. 339; The People v. Sweeting, 2 Johns. (N. Y.) R. 184.

The People v. Hillsdale and Chatham Turnpike Co. 2 Johns. (N. Y.)

R. 190.

7 Rex v. Sir Wm. Trelawney, 3 Burr. 1616, per Wilmot, J.; See, howWillcock on Corp. 465.

ever,

Ibid.; Bul. N. P. 210; Sel. N. P. (Wheat.'s ed.) 873, where see stat. For forms of informations to try the title to offices, &c. see 6 Wentw. Plead. 28 to 234; 2 Kyd on Corp. 403; Commonwealth v. Fowler, 10 Mass. R. 291; The State v. Tudor, 5 Day's (Conn.) Cas. in Error, 329; 4 Cow. (N. Y.) R. 106, &c.

even in those States of our own country, where these or similar acts are not in force, it is assumed in all the cases, that an information in the nature of a quo warranto, to try the right to an office, &c. at the prosecution of one of the parties interested, is grantable only at discretion.

2. Courts will, however, usually grant this information, where the right, or the fact on which the right depends, is disputed and doubtful;' where the right turns upon a point of new or doubtful law, or where there is no other remedy. It has been held, that an information may be granted to impeach the title to an office, though the objection to the title arises from a defect in the title of the officer's electors, provided the application be made within a proper time. This is done, it is said, by introducing on the record an issue respecting the title of the electors, so that their right is tried, as incidental to the principal question, though they have not been ousted on an information filed against them. The usual and most proper mode is, however, to attack by information the title of the electors first; though there may be cases, where the title of the electors cannot be impeached at all, unless in a proceeding against the person whom they have elected.' And in the case of The King v. Hughes, it was laid down by Bailey, J. as settled law, since the case of Symmers v. Regem,' that where the electors are members of a corporation, whose titles might be impeached by quo warranto informations, those titles could not

8

1 Rex v.

Latham, 3 Burr. 1485; S. C. Rex v. Lathrop et al. 1 Bl. R. 468. 2 Rex v. Carter, Cowp. 58; Rex v. Goodwin, Doug. 397; Rex v. Scott,

1 Barnard, 24.

Cas. K. B. 225; Bul. N. P. 212.

The King v. The Corporation of Penryn, 8 Mod. 216.

5 Symmers v. Regem, Cowp. 507; Rex v. Mein, 3 T. R. 598, per Kenyon, C. J.

Rex v. Hebden, 2 Stra. 1109; S. C. Andr. 388; Symmers v. Regem, Cowp. 500, arguendo.

7 Symmers v. Regem, Cowp. 500, arguendo; Rex v. Mein, 3 T. R. 598," per Kenyon, C. J.

4 B. &. C. 368, 377, 378.

9 Supra.

BOD

be investigated collaterally in order to affect the title of the elected. And where judgment of ouster has been given against electors, through whom an office is claimed, this may be a reason for granting an information to impeach the title to the office; and the judgment of ouster against his electors will be admissible evidence against the officer; though not conclusive, since it might have been obtained by collusion.' It was no objection to granting the writ at the instance of a private relator, that the objection by him made lies against every member of the corporation, and tends to dissolve it altogether."

If a prima facie case of usurpation is made out, and there appears a fair doubt on the title of the defendant, the court will not discuss the question in the summary way of motion, but send the facts to a jury. In the following cases the court has thought proper to send the question to a jury, or leave the parties to bring it more solemnly before them, on demurrer; and therefore allowed the information. Where the eligibility of the defendant to the office of burgess was doubtful, on account of his nonage; ⚫ or his eligibility to the office of capital burgess was doubtful, on account of his non-residence; or residence being a qualification, where the question, upon the facts, was, whether he was a resident. Where the questions were, whether being a capital burgess was required by the charter as a previous qualification for being elected mayor; and whether the defendant had been duly elected into the office of capital burgess, it being admitted he was a burgess, which he contended to be the only qualification required by

1 Rex v.

Hebden, 2 Stra. 1109; S. C. Andr. 388; Symmers v. Regem, Cowp. 500, arguendo; Rex v. Grimes, 5 Burr. 2601.

2 Rex v.

White, 1 Nev. & P. (K. B.) 84; Rex v. Parry, 6 Adolph. & Ellis, (K. B.) 810; Reg. v. Parry, 2 Nev. & P. (Q. B.) 414.

3 Willcock on Mun. Corp. 469.

Rex v. White, C. T. H. 8; Rex v. Carter, Cowp. 59, 226; Rex v. Courtenay, 9 East, 261; Claridge v. Evelyn, 5 B. & A. 86.

Rex v. Pool, 2 Barnard, 93.

6 Rex v. Lathrop, 1 W. B. 471; S. C. Rex v. Latham, 3 Burr. 1487; Rex v. Richmond, 6 T. R. 561.

the charter.' Where A. being one of two nominees, notice had been given that he was ineligible, and a majority voted for A., but B. the defendant was admitted; the question was upon the ineligibility of A. under the statute of Anne; for if it was found that he was qualified, B. must be ousted, and A. admitted. Where the direction was doubtful, the question being upon the qualification of the electors, or upon an omission, in the notice, of the purpose of the corporate meeting, or where the doubt upon the affidavits, was, whether the bailiff was an integral part of the corporate assembly, he not having been present at election. Where the question was, whether the officer, who had a right by custom to hold over, could be put out by a new appointment, after a defective appointment made at the proper time. Where there was a doubt on the words of the charter, who were the persons who ought to admit, and of course, whether the defendant was legally admitted. Where the doubt was, whether the office, to oust the defendant from which the information was prayed, was compatible with another which he had subsequently accepted.

3. Although it is evident that the defendant has no right, yet, if the public has sustained no injury, the court will exercise a discretion as to granting the information on the relation of the particular applicant. It has been granted, however, to one having no interest in the affairs of the corporation, where there was a strong case against the defendant; to the inhabitant of a borough, though not a freeman, the municipal gov

1 Rex v. Tucker, 1 Barnard, 27.

Anne, c. 20, § 8; Rex v. Goodwin, Doug. 385.

3 Rex v. Whitchurch, 8 Mod. 210.

♦ Rex v. Tucker, 1 Barnard, 27; Rex v. Sandys, 2 Barnard, 301, 302. Rex v. Lathrop, 1 W. B. 470; S. C. Rex v. Latham, 3 Burr. 1485. Rex v. Butler, 8 Mod. 350.

7 Rex v. Trew, 2 Barnard, 371.

Rex v. Pateman, 2 T. R. 779; and see Rex v. Thomas Bond, 6 D. & R. 333.

Rex v. Brown, 3 T. R. 574, n. The application was made, however, in this case for the purpose of enforcing a general act of parliament, which interested all the corporations in the kingdom.

2

1

ernment being vested in the corporation; to one who was elected into the corporation previous to, but admitted during the mayoralty of the defendant, to oust whom the information was sought; to a corporator so poor as not to be responsible for costs; to a corporator who voted for the defendant at his election to the office, from which he seeks to oust him, he being ignorant, at the time of his election, of his disqualification; to a corporator who was present and voted at the defendant's election (against him), and who has since attended corporate meetings, at which the defendant presided, even though a judgment against the defendant would suspend the corporation; to a corporator who applied to oust the defendant from the office of alderman, having objected to his qualification at the time of his election, though he afterwards made no objection to his election to the principal office of magistracy, which required the defendant to be an alderman as a qualification; and who attended at, and concurred in corporate meetings, where the defendant presided or attended in his official capacity; to a town clerk who had been long acquainted with a defect in the defendant's title, it not appearing that he had lain by intentionally, or been guilty of any improper conduct in the affair; to an applicant friendly to the defendant, who instituted the proceeding for the purpose of enabling the latter to enter a disclaimer, where it was doubtful whether he held incompatible offices, and there was no way of resigning one of them. In such case, however, the court will impose any restrictions on the parties, which the interests of third persons may require. And where the application is made on the affidavit of several persons, all of whom, but one, concur

6

8

'Rex v. Hodge, 2 B. & A. 344, n.

* Rex v. Trevenen, 2 B. & A. 342.

Ibid.

• Rex v. Smith, 3 T. R. 574.

Rex v. Morris, and Rex v. Stewart, 3 East, 216.

Rex v. Clarke, 1 East, 46.

"Rex v. Binsted, Cowp. 77.

• Rex v. Marshall, 2 Chit. R. 370.