A., being indebted to B. and C., partners, and being informed of the intended dissolution of partnership, gave a warrant of attorney to B. alone, who managed the concerns. A. afterwards committed an act of bankruptcy; and after that, and after a dissolution of partnership, paid the money to B.; B. died. The assignees of A. sued C. for the money; and it was holden (r), that they were entitled to recover; for the money being paid in respect of a debt due to the partnership, both parties were liable to refund, unless some stipulation could be shown to exonerate C. from his liability. If one of several partners promise individually to pay a debt, without making any mention of his partners, such promise is conclusive evidence that the debt was due from him individually, and not from the partnership, and he will not be permitted to show that it was due jointly from himself and his partners (s).

(r) Biggs v. Fellows, 8 B. & C. 402.

(8) Murray v. Somerville, 2 Campb. 99, n.

CHAPTER XXXII.

QUO WARRANTO.

I. Of the Origin and Nature of Quo Warranto Informations, and Statutes relating thereto, viz. Stat. 4 & 5 Will. & Ma. c. 18, and 1 Ann. c. 20, p. 1155; Proceedings against the City of London in the time of Charles the Second, p.

1160.

II. In what Cases the Court will grant an Information in Nature of Quo Warranto, p. 1161; Of the Corporation Act, Stat. 13 Car. II. Stat. 2, c. 1, p. 1165; Test Act, 25 Car. II. c. 2, p. 1165; Repeal, p. 1166.

III. Of the Limitation of Time for granting an Information, p. 1167; Stat. 6 & 7 Vict. c. 89. s. 5, for expediting certain Proceedings, by way of Mandamus and Quo Warranto, p. 1168.

IV. Of the Construction of Charters, and of the Operation and Effect of a New Charter, p. 1169.

V. By-Laws, p. 1173.

VI. Of the Inspection of the Records of the Corporation, p. 1177. VII. Of the Pleadings, p. 1177.

VIII. Evidence, p. 1179.

IX. Judgment, p. 1181.

I. Of the Origin and Nature of Quo Warranto Informations, and Statutes relating thereto, viz. Stat. 4 & 5 Will. & Ma. c. 18, and 9 Ann. c. 20, p. 1155; Proceedings against the City of London in the Time of Charles the Second, p. 1160.)

THE ancient writ of quo warranto (1), whence the information of the present day derives its origin, was in the nature of a writ of

(1) See the form in Rastal's Entr. 540, b. ed. 1670, where the writ 2 μ

VOL. II.

right for the king, against persons who claimed or usurped any office, franchise, liberty, or privilege belonging to the crown, to inquire by what authority they maintained their claim, in order to have the right determined. The judgment on this writ was, that the franchise capiatur in manum domini regis (2). This writ having fallen into disuse, on account of the delay with which it was attended, a more expeditious mode of proceeding has been adopted, viz. an information filed by the king's attorney-general, in nature of a quo warranto, in which the person usurping is considered as an offender, and consequently punishable by fine. The court, however, will not extend this remedy beyond the limits prescribed to the old writ; and, as that could only be prosecuted for an usurpation on the rights or prerogatives of the crown, so an information in nature of quo warranto can only be granted in such cases (a); and upon this principle the court refused to grant an information to try the validity of an election to the office of churchwarden.

By stat. 4 & 5 Will. & Ma. c. 18, it is enacted, "That the clerk of the Crown-office shall not, without express order of the court, receive or file any information for trespass, or other misdemeanour, or issue any process thereon, before he shall have taken, &c. a recognizance from the prosecutor to the defendant, in the penalty of 201., to prosecute with effect: and in case the defendant shall appear and plead to issue, and the prosecutor shall not, at his own costs, within one year after issue joined, procure the same to be tried (b), or in case the defendant shall have a verdict, or a noli prosequi be entered by the informer, the court may award the defendant costs, &c., unless the judge shall, at the trial, certify that there was a reasonable cause for exhibiting the information; and if the informer does not pay the costs taxed within three months after demand, the defendant shall have the benefit of the recognizance to compel him." Although the words of this statute relate only to informations for trespasses, batteries, and other misdemeanours, yet it has been holden to extend to informations in nature of quo warranto, to try the right of usurping on public franchises; consequently such informations cannot be filed without leave (c), nor can process be issued thereon without a recognizance (d), and the defendant is entitled to costs in the cases pro

(a) R. v. Shepherd, 4 T. R. 381; R. v. Dawbeny, Str. 1196, S. P.

R. v. Howell, Ca. Temp. H. 247.
Per Lord Hardwicke, C. J., R. v.

Howell, C. T. H. 248.

(d) R. v. Mayor of Hertford, Carth. 503; Salk. 376.

appears to have been prosecuted by the King's Attorney-general before the justices in Eyre, who are empowered by stat. 18 Edw. I., stat. 2, s. 2, (A.D. 1290,) to determine pleas of quo warranto.

(2) See Rast. 540, b.

See 2 Inst. 497.

vided for by the statute, as far as the recognizance extends, that is, to 201. but not further (e) (3). The foregoing statute is confined to informations exhibited in the King's Bench (ƒ).

The usurpation of offices and franchises in corporations constitutes the principal ground for applications to the court for this kind of information. By the common law, such usurpations could be punished only by a prosecution at the king's suit, though the dispute were really between party and party (4). To remedy this inconvenience, it was enacted, by stat. 9 Ann. c. 20, s. 4. that in case any person should usurp, intrude into, or unlawfully hold and execute any of the said offices or franchises (5), the proper officer of the court may, with leave of the respective courts, exhibit informations in the nature of quo warranto, at the relation of any person desiring to prosecute the same, (and who shall be mentioned in the information to be the relator,) against the person usurping, and proceed therein as is usual in informations in the nature of a quo warranto; and if it shall appear to the courts, that the several rights of divers persons may properly be determined on one information, the courts may give leave to exhibit one information against several persons; the parties prosecuted are to plead the same term or sessions in which the information is filed, unless further time be allowed by the court, and the prosecutors are to proceed with the most convenient speed. By the 5th section, the courts are authorized to give judgment of ouster against, and to fine the parties, if found guilty of the usurpation, and to award costs to the relator; but if judgment be given for the defendants, then the court may award costs against the relator.

Before the statute of Queen Anne, a private person could not interpose in quo warranto; the crown, by the attorney-general, could file such informations; but although this statute gives liberty to file such informations at the relation of a particular person, who is made liable to costs if there be judgment for the defendant, yet they

(e) R. v. Howell, C. T. H. 249; S. C., ut videtur, under the name of R. v. Morgan, Str. 1042; R. v. Filewood, 2 T. R.

145; R. v. Brooke, 2 T. R. 197.
(f) R. v. Roberts, 2 B. & Ad. 63.

(3) The ground of the decision appears to have been that such usurpations are misdemeanours. See C. T. H. 248.

(4) In informations at common law, there is no relator.

(5) i. e. the offices of mayors, bailiffs, portreves, and other offices within cities, towns corporate, boroughs, and places (that is, places of the same kind with those before enumerated, see 5 T. R. 879,) in England and Wales, and the franchises of being burgesses or freemen. See the preamble. "All corporations consist of officers and freemen. This statute was meant to extend to both." Per Lord Mansfield, C. J., in R. v. Williams, 1 Bl. R. 95.

must be filed with leave of the court (g). "There is no (h) instance of a quo warranto information having been granted by leave of the court against persons for usurping a franchise of a mere private nature, not connected with public government."-" As to the granting of an information in nature of quo warranto, I cannot conceive that it can be done (i) against a mere servant of a corporation, one who exercises no franchise or authority of any kind under the crown." A quo warranto information does not (k) lie for the office of governor and director, elected annually by rated inhabitants, under a local act, for the government of the poor and maintenance of a nightly watch. But an information in nature of quo warranto has been granted against a party claiming to act as guardian of the poor in Exeter (1), under stat. 28 Geo. III. c. 76. An information in nature of a quo warranto against persons for claiming to act as a corporation, must (m) be filed by and in the name of the attorneygeneral. The courts will not stay proceedings until the prosecutor gives 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 (n). It was observed by Wilmot, J., in R. v. Trelaw ney, 3 Burr. 1616, that the two acts of parliament (of 4 & 5 Will. & Ma. c. 18, and 9 Ann. c. 20,) relate to quite different objects, and are the reverse of each other. The former restrains the clerk of the crown in the Court of King's Bench from exhibiting or filing informations without leave of the court, in cases where all the king's subjects might, before the making of that act, have made use of the king's name, without such leave. The latter lets in every person who desires it, to make use of his name in prosecuting usurpers of franchises; whereas, before, no subject could have done so : but it provides, that these informations, (as well as those for misdemeanours) must be under the leave and discretion of the court; and the court ought not to give such leave without sufficient reason. The court will make the rule absolute, although the party after rule obtained resigns the office, and his resignation is accepted (o).

The stat. 9 Ann. c. 20, only regulates the proceedings on informations against individuals (p) usurping corporate offices or franchises

(g) Per Lord Mansfield, C. J., in R. v. Trelawney, H. 5 Geo. III., MS., and per Wilmot, J., in S. C., 3 Burr. 1615. But see the remarks of Mr. Tancred in his valuable treatise on Informations in Nature of Quo Warranto, p. 14.

(h) Per Bayley, J., in R. v. Ogden, 10 B. & C. 233.

(i) Per Lawrence, J., R. v. The Corporation of Bedford Level, 6 East, 367.

(k) R. v. Ramsden, 3 A. & E. 456, per Littledale and Patteson, Js., recognized and adopted by Lord Denman, C. J., in the matter of The Aston Union, 6 A. & E.

785; R. v. Hanley, 3 A. & E. 463, per Tenterden, C. J., Taunton and Patteson, Js., diss. See Reg. v. Stoke Damerel, case of Sexton, 5 A. & E. 581.

(7) H. T. 1816, ex relatione magri. Dealtry, 3 A. & E. 476, in R. v. Beedle, S. P. where local act created a corporation, cited by Coleridge, J., in R. v. M. &c. of Oxford, 1 Nev. & P. 479.

(m) R. v. Ogden, 10 B. & C. 230. (n) R. v. Wynne, 2 M. & S. 346. (0) R. v. Warlow, 2 M. & S. 75. (p) R. v. Corporation of Carmarthen, 2 Burr. 869.