CHAPTER XXXI. QUO WARRANTO. I. Of the Origin and Nature of Quo Warranto Infor- PAGE 1169 1173 1175 1180 1181 II. In what Cases the Court will grant an Information in Nature of Quo Warranto, Repeal of the Corporation and Test Acts III. Of the Limitation of Time for granting an Information, Stat. 6 & 7 Vict. c. 89, s. 5, for expediting certain 1182 1184 1187 IV. Of the Construction of Charters, and of the Operation and Effect of a New Charter, VI. Of the Inspection of the Records of the Corporation, 1191 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. THE ancient writ of quo warranto (a), whence the information of the present day derives its origin, was in the nature of a writ of right for the king, against persons who claimed or usurped any (a) See the form in Rastal's Entr., 540, b. edit. 1670, where the writ appears to have been prosecuted by the king's attorneygeneral before the justices in eyre, who are empowered by stat. 18 Edw. I., stat. 2, 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 (b). 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 (c); and upon this principle the court refused to grant an information to try the validity of an election to the office of churchwarden (d). 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 (e), 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 held 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 (f), nor can process be issued thereon without a recognizance (g), and the defendant is entitled to costs in the cases provided for by the statute, as far as the recognizance extends, that is, to 201. but not further (h). The foregoing statute is confined to informations exhibited in the King's Bench (i). (b) See Rast. 540, b. (c) See post, p. 1173. (d) R. v. Shepherd, 4 T. R. 381; R. v. Dawbeny, Str. 1196, S. P.; but see per Tindal, C. J., 12 Cl. & F. 539; Exp. Mawby, 3 E. & B. 718; and ante, p. 1085. (e) R. v. Howell, Ca. Temp. H. 247. (f) Per Lord Hardwicke, C. J., R. v. Howell, Ca. Temp. H. 248. (g) R. v. Mayor of Hertford, Carth. 503; Salk. 376. (h) R. v. Howell, Ca. Temp. 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; R. v. Savile, 18 Q. B. 703. The ground of the decision appears to have been that such usurpations are misdemeanours. See Ca. Temp. H. 248. (i) R. v. Roberts, 2 B. & Ad. 63. 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 (k). To remedy this inconvenience, it was enacted, by 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 (4), 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 alone 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 must be filed with leave of the court (m). An information in nature of a quo warranto, against persons for claiming to act as a corporation, must be filed by and in the name of the attorney-general (n). 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 (o). And though a person, whose election to the office of town-councillor is void by reason of the mistake of the presiding officer, is willing to disclaim, (k) In informations at common law, there is no relator. (1) 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 VOL. II. meant to extend to both." Per Lord Mansfield, C. J., in R. v. Williams, 1 Bl. R. 95. (m) 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. (n) R. v. Ogden, 10 B. & C. 230. I I and consents to a rule for a quo warranto being made absolute, the court will not order that the relator should bear the expense of the information and disclaimer (p). The provisions respecting error in the Common Law Procedure Act, 1852, do not apply to informations in the nature of quo warranto (q). It was observed by Wilmot, J., in R. v. Trelawney, 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 (r). The stat. 9 Ann. c. 20, only regulates the proceedings on informations against individuals (s) usurping corporate offices or franchises in corporate places; it does not extend to a private company: and consequently, in other cases where the information at common law is exhibited, advantage cannot be taken of the foregoing provisions (t). If any number of individuals claim to be a corporation without any right so to be, that is an usurpation of a franchise; and an information against the whole corporation, as a body, can be brought only by and in the name of the attorney-general (u). In the information at common law there is not any relator; but the addition of a relator to an information at common law may be rejected as surplusage (x). Doubts appear to have been entertained, whether in the common law information a judgment of ouster could be given. In R. v. Mayor of Hertford, Lord Raym. 426, Holt, C. J., speaks of this as the proper form of judgment. In R. v. Bennet (y), Trin. 4 Geo. I., the judges were equally divided on the (p) R. v. Hartley, 3 E. & B. 143; R. v. Sydney, 2 L. M. & P. 149; and see R. v. Morton, 4 Q. B. 146. (q) R. v. Seale, 5 E. & B. 1. (r) R. v. Warlow, 2 M. & S. 75. (s) R. v. Corporation of Carmarthen, 2 Burr. 869. (t) Horn v. Cutlers' Company, B. R. E. 9 Geo. II., MS. But see R. v. Highmore, 5 B. & A. 771, where it was held, that an information may be granted within the 9 Ann. against a party for exercising the office of bailiff in the borough of M., although it was not a corporate office. See, however, this case explained by Bayley, J., delivering judgment of court, in R. v. M Kay, 5 B. & C. 645, where it was held, that the provisions of the statute, as to writs of mandamus and quo warranto informations, apply wholly to corporate offices in corporate places. See also R. v. Attwood, 4 B. & Ad. 481; and R. v. Powell, 3 E. & B. 377. (u) Per Lord Tenterden, C. J., R. v. Ogden, 10 B. & C. 233, recognizing R. v. Corporation of Carmarthen, 2 Burr. 869. (x) Per Denison, J., 1 Burr. 408. (y) Cited in Say. R. 247. question; but in R. v. Ponsonby, M. 29 Geo. II., Say. R. 245, it was solemnly determined, that unless the case of the person found guilty be within the statute, judgment of ouster ought not to be given (z). It has also been expressly decided, that, unless the case be within the statute, judgment for costs ought not to be given (a). The preceding remarks will be found material, inasmuch as there are many cases not mentioned in the statute, in which informations in nature of quo warranto will lie; e. g., it will lie against a private person or against a corporation, for holding a market, a court-leet, or other court, or for exercising any other franchise; that is, the king's attorney-general may exhibit informations for the usurpation of these franchises upon the crown; but whether informations for such usurpations can be granted upon the application of a private person, is a question which has not hitherto received a solemn determination. The point underwent considerable discussion in the case of R. v. Marsden, 3 Burr. 1812; 1 Bl. R. 579. Yates, J., thought that, as every usurpation of a franchise was a misdemeanour, a private person might apply as for the misdemeanour; but he, together with the other judges, declined giving any fixed opinion: in the case then before the court, it was not sufficiently shown, that there had been an usurpation; the court therefore refused to grant the information on that ground. There must be an information against each person to enable each to disclaim, for distinct offices; and the court will not consolidate them (b). Proceedings against the City of London in the Time of Charles the Second. By the suggestion of evil counsellors, and in order to increase the power and influence of the crown, it was deemed expedient, in the latter end of King Charles the Second's reign, to new-model the corporate cities and boroughs. Against many corporations, (which declined surrendering their charters voluntarily,) informations, in nature of quo warranto, were filed, grounded upon the notion that such corporations had forfeited their franchises through neglect or by abuse of them. An information of this kind was filed against the corporation of the City of London. The charge against them was, that they had forfeited the liberty of being a corporation,— first, by making a bye-law for the levying several sums of money of the king's subjects coming to the public markets within the city to sell their provisions. Secondly, by having in common council voted a petition to the king, stating that by the prorogation of the parliament on the 10th of Jan. 32 Car. II., the prosecution of the public justice of the kingdom had received interruption, and by ordering the said petition to be printed, with intent that it should be dispersed among the king's subjects, to induce an opinion that the (z) See, however, 1 Burr. 402. (a) R. v. Williams, 1 Burr. 402; 1 Bl. R. 93, S. C.; R. v. Wallis, 5 T. R. 375; R. v. Hall, 1 B. & C. 237; R. v. M'Kay, 5 B. & C. 640. (b) R. v. Warlow, 2 M. & S. 75. |