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cuted, and the persons perjured, convicted.' If these affidavits, and the cause shown, do not place the matter beyond dispute, the rule will be made absolute; but the Court of King's Bench, in conformity to the rule concerning criminal informations, will not grant the rule for an information on the last day of the term. By the English rules of practice, on applying for informations in the nature of a quo warranto, objections, intended to be made to the title of the defendant, must be specified in the rule to show cause; and no objection, not so specified, can be raised by the prosecutor in the pleadings, without the special leave of the court, or of some judge thereof.*

This,

By the statutes of Anne, and of New York, one information may be exhibited to try the right of several persons. And after rules for several informations have been made absolute, where the situation of the defendants is precisely similar, the court will direct several informations to be consolidated. however, the court will not do, unless the offence is joint; for the consolidation would deprive the defendants of the opportunity of severally disclaiming or maintaining their offices." Sometimes, however, where there are several informations for the trial of titles precisely similar, one of them is tried, and the rest suspended upon an undertaking of the other parties to disclaim according to the event of the trial; but in Rex v. Cozens, the court refused to compel the relators and defendants in several informations to submit to be bound by the result of one, although the objections, in all, were the same.'

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§ 7. An information cannot be quashed on motion, though

1 Rex v. Woodman, 1 Barnard, 101; Rex v. Trew, 2 Barnard, 371. Bul. N. P. 210.

Rex v. Davies, Sayer, 241.

Reg. Gen. H. T. 7 and 8 Geo. 4; 9 D. & R. 247; and see Rex v.. Thomas, 3 Nev. & P. (Q. B.) 288.

59 Anne, ch. 20, § 4.

61 R. L. (N. Y.) 108, § 4.

7 Rex v. Foster, 1 Burr. 573; Symmers v. Regem, Cowp. 500, 501.

8 Rex v. Warlow, 2 M. & S. 76.

Ibid. per Dampier, J.

10 6 Dowl. (P. C.) 3; and 2 Nev. & P. (K. B.) 164.

both parties consent that it shall be done; but the court will, upon consent, direct the recognizances on both sides to be discharged. The appearance of the defendants to a rule to show cause why an information should not be filed against them, does not constitute an appearance to the information; and therefore on filing the information, the relators are not entitled to a rule to plead. The rule to show cause is intended to obtain leave to institute the proceeding; but it is commenced by the information.2

The next step is to compel the appearance of the defendant. On the ancient writ of quo warranto, the process to effect this was a summons; and 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. On an information in the nature of a quo warranto, the first process is a venire facias in the nature of a summons, and if there be no appearance upon it, then a distringas, between the teste and return of which, in England, there must be fifteen days if the corporation be in a foreign county. But on information against a corporation, there can be no seizure of the franchise, for a default, before a distringas has issued. In Massachusetts, the first process against the defendant appears to be a summons; but in a case in Pennsylvania, it was a venire facias, returnable at the next term. If, where the proceeding is against a corporation, there be a default, there may be a judgment of seizure of the franchise usurped, into the king's hand, or in the king's right quousque, that is, until the court shall further order; and Chief Baron Eyre said, he conceived the

'Rex v. Edgar, and Rex v. Brickell, 4 Burr. 2297.

The Commonwealth v. Springer et al. 5 Binn. (Penn.) R. 353, 354. Rex v. Trinity House, 1 Siderf. 86; Brigg's Ca. 2 Roll. 46; Rex v. Wygorne, 2 Roll. 92; Rex v. Hertford, 1 Ld. Raymd. 426; S. C. 1 Salk. 374; S. C. Carth. 503; Rex v. Yarmouth, 3 Salk. 104.

• Commonwealth v. Fowler, 10 Mass. R. 291; Commonwealth v. Dearborn et al. 15 Mass. R. 126.

› Commonwealth v. Springer et al. 5 Binn. (Penn.) R. 353, 354.

effect of the judgment and seizure by the sheriff to be, that it laid the king's hands on the franchise of being a corporation, and upon other franchises mentioned as usurped in the information, so that the 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 of the franchises might be appointed; and that the corporation might be restored, on paying a fine to the king, or that the king might pardon the default by proclamation or charter. Some of the old cases on the writ of quo warranto look as if, when the franchise was seized for a default, it was forfeited forever, unless replevied at a short day, in the same eyre or term. The practice on the information, in the time of Charles the Second, is said to have been similar; and if the party did not appear, there was a judgment of seizure quousque, and if they did not replevy and appear in the next term, there was final judgment, unless they should plead within a certain time. The law seems, however, to be, that if the defendant being summoned makes default, and makes another default at the return of the venire facias, judgment shall be, that the franchise be seized into the king's hands, and not that it shall be forfeited; for it does not yet appear whether there be any cause of forfeiture, and no man shall finally lose his land or his franchise, on any default, if he has never appeared. The process must therefore be continued until the king may have final judgment. In Rex v. The Mayor of Hedon, Lord Chief Justice Lee said, "that there never was any process to outlawry on an information in the nature of a quo warranto, this not being like a quo warranto by original writ, which was in use before this manner of pro

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Strata Marcella, 9 Co. 29; 2 Chester Cas. 510, per Eyre, C. B. 567, 568; The King v. Amery, 4 T. R. 122; 2 Kyd on Corp. 496 to 511; Co. Ent. 539, b.; Willcock on Mun. Corp. 483, 484.

* Maidstone Cas. Poph. 180; Judgment in quo warranto, Comb. 19; Rex v. Chester, 2 Show. 366; Glos'ter stat. 2 Ins. 282.

3 Jenkins. Cent. Ca. 91; 2 Kyd on Corp. 502; Strata Marcella, 9 Co. 29; 2 Chest. Ca. 566; Willcock on Mun. Corp. 484.

1 Wils. R. 245.

ceeding." Mr. Kyd seems, however, to think, that if there be any distinction between the writ and information in this particular, the process of outlawry lies in the latter, and does not lie in the former proceeding.1

If the defendant suffer the rule to show cause to be made absolute, or suffer judgment by default, others, whose derivative titles may be affected by the judgment, may, it seems, open the rule again, and be permitted to show cause against the information, upon undertaking to indemnify the defendant against all expenses, costs, &c.*

At common law, the court may either grant or deny a second imparlance, as they see cause. By the statute of Anne, and also by the statute of New York, such convenient time may be allowed to the prosecutor, as well as to the defendant, to plead, reply, rejoin, or demur, as the court may think reasonable.

The defendant may disclaim the franchise mentioned in the information altogether, or he may disclaim it as to a part of the time during which he is alleged to have usurped it, and justify as to the other part. And under particular circumstances, as where the defendant was a very young man, and had never acted in the office, the court will, upon making the rule absolute, direct the defendant to enter a disclaimer with

1 2 Kyd on Corp. 438, 439.

Bac. Abr. Informations, D.; Rex v. Newling, 3 T. R. 310, 311.

For entry of an imparlance, see The People v. Utica Ins. Co. 15 Johns. (N. Y.) R. 363. As to second imparlance, Herring v. Brown, Comb. 11, 12.

9 Stat. Anne, c. 20, § 6; 2 Lill. Prac. Reg. 510, B.; Willcock on Mun. Corp. 485. For rules to plead, reply, &c., in England, see Rex v. Ginever, 6 T. R. 695, and n.

5 1 R. L. 109, § 6. In New York the rules to plead, reply, &c. are the same as in ordinary cases. See The People v. Clark, 4 Cowen (N. Y.) R. 95; Ibid. 119, n. a.

• Co. Ent. 527, b.; Tidd's Prac. 984; Rex v. Biddle, 2 Stra. 952. As to form of disclaimer, see Co. Ent. 527 to 529; 2 Kyd on Corp. 405; 4 Cowen (N. Y.) R. 113, n. 114, n.

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out paying costs. In general, however, costs, upon disclaimer, must be paid by the defendant."

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8. To a writ of quo warranto, or an information in the nature of one, the defendant must either disclaim or justify, and the State is bound to show nothing. He cannot plead non usurpavit; for the object of the proceeding is to ascertain, by enforcing the defendant to set forth, "by what warrant or authority" he exercises the office, or holds the franchise." For the same reason it is not sufficient to show a title in another; but any defect in the plea may be helped, by treating facts, stated in the information by way of inducement, as though they formed a part of the plea. 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." or "by his authority, &c." The defendant may also plead in abatement; but he must, as in other cases of dilatory pleas, verify the plea by affidavit; and if the affidavit be not enti

Rex v. Holt, 2 Chit. R. 366.

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Reg. v Morton, 4 Adolph. & Ellis (N. S.) 146; and see in this case a comment on Rex v. Holt. See also Rex v. Warlow, 2 M. & S. 75; Rex v. Marshall, 2 Chit. R. 370.

State v. Ashley, 1 Pike (Arkan.) R. 553; State v. Harris, 3 Pike (Arkan.) R. 572; The People v. Utica Ins. Co. 15 Johns. (N. Y.) R. 358.

Anon. 12 Mod. 225, per Holt, C. J.; Rex v. Blagden, 10 Mod. 299; Rex v. Trinity House, 1 Sid. 86; Strata Marcella, 9 Co. 28, a.; Glos'ter stat. 2 Inst. 281; State v. Ashley, 1 Pike (Arkan.) R. 504; People v. Bartlett et al. 6 Wend. (N. Y.) R. 422.

Chest. Ca. 548; 2 Leon. Ca. 31; Partridge's Ca. Cro. E. 125; Musgrave v. Nevinson, 1 Stra. 585; Rex v. Leigh, 4 Burr. 2145; Rex v. Hebden, Andr. 392.

Rex v. Blagden, Gilb. R. 145; Strata Marcella, 9 Co. 27, a. For forms of pleas, see Co. Ent. Quo Warranto; 2 Kyd on Corp. 406; 6 Went. Plead. 28 to 242; State v. Foster, 2 Halst. (N. J.) R. 101; The State v. Tudor, 5 Day's (Conn.) Cas. in Err. 330; The People v. Utica Ins. Co. 15 Johns. (N. Y.) R. 363 to 365; The People v. Kip et al. 1 U. S. Law Journal, 284; 4 Cowen (N. Y.) R. 114 to 117; State v. Harris, 3 Pike (Arkan.) R. 572, 573.

72 Kyd on Corp. 439; 1 R. L. (N. Y.) 519, § 19; Rex v. Jones, 2 Stra. 1161; Rex v. Mayor of Hedon, 1 Wils. 244; 6 Went. Plead. 51.