special verdict is found as to some of the facts in issue, but the verdict is silent as to other and important questions presented, the court may treat the proceeding as having resulted in a mis-trial, and direct the cause to be tried de novo.1

§742. The statute of Anne authorized the recovery of costs by the successful party, and in cases of municipal offices and franchises, which were the only cases covered by this statute, provided that the court might give judgment for the costs of the prosecution, if the relator were successful, or for the costs expended by the respondent, if he prevailed in the action.2 This statute seems to have been generally followed in this respect in most of the states, either by direct legislation, or by recognition of the courts. Where, however, the information is filed to test the right to exercise the franchise of a municipal corporation, and the officers of the corporation file a disclaimer of any purpose or intention to exercise the functions of the offices to which they were elected, no costs will be allowed against them.3

$743. In New York, the code of procedure has abolished both the common law writ of quo warranto and the information in the nature thereof, and has substituted a civil action in their stead. The courts of that state, however, are still gov erned largely by the common law rules as to the granting of costs in proceedings under this statutory remedy. And where judgment of ouster is rendered against the respondent, costs will be allowed against him, even though the relator may have failed to establish his own title to the office. 4

744. Where the application for leave to file an information has once been made and refused, it will not again be granted against the same officer for the same alleged defect in his title, upon affidavits impeaching those filed in opposition to the former application, since the courts will not encourage parties in coming before them with an imperfect case in the first instance and supplying its defects upon the second application by alleged inconsistencies in the opposing affidavits,

CHAPTER XX.

OF THE JUDGMENT IN QUO WARRANTO.

§ 745. Nature of the judgment at common law.

746. Conclusive effect of judgment upon the original writ. 747. Capiatur pro fine; judgment upon one of several issues. 748. Judgment of ouster conclusive as to prior election.

749. Judgment good in part and bad in part.

750. Judgment of ouster neither creates nor destroys rights. 751. Costs under statute of Anne.

752. Judgment of ouster against corporation.

753. Distinction between seizure of franchises and dissolution of corpo

ration.

754. Ouster not dependent upon claim of right; may be allowed where usurpation has ceased.

755. Goods and effects of corporation not forfeited to state.

756. Effect of judgment of ouster upon the officer; bars mandamus to restore him.

757. Judgment does not declare vacancy; relator's right need not be determined.

758. Discretion as to fine; omission not assignable for error. 759. Want of leave to file information; judgment on demurrer. 760. Return of canvassers not conclusive; commission not conclusive. 761. Refusal to allow information a final judgment in Alabama.

$ 745. At common law, the judgment upon the ancient writ of quo warranto, if for the respondent, was that he be allowed his office or franchise. And in case of judgment for the king for a usurpation of the franchise, or for its mis-user or non-user, a judgment of seizure into the king's hands was rendered, if the franchise was of such a nature as to subsist in the hands of the crown; if not of such a nature, there was merely judgment of ouster for the purpose of dispossessing the party. In case of judgment for a seizure of the franchises into the king's hands, all franchises incident and subordinate. thereto, and held by the same grant, were also forfeited. If

the respondent disclaimed, judgment was rendered immediately for the crown. And upon the other hand, if the attorney general confessed the respondent's plea, judgment was rendered for the allowance of the franchises. Such confession, however, did not conclude either the king or the court as to matters of law, but was only conclusive as to questions of fact, and even as to such questions it would seem to have been conclusive upon the crown only in matters of private concern, wherein the public had no interest.1

8746. The original writ of quo warranto being in the nature of a writ of right, judgment thereon was regarded as final and conclusive upon all parties, including even the crown.2 And it was doubtless due to this fact, as well as the dilatory nature of the process, that its place was gradually usurped by the information in the nature of a quo warranto, the judgment in which is less decisive, being ordinarily a mere judgment of ouster with a nominal fine. This distinction between the nature of the judgment applicable to the two remedies was early recognized by the court of kings bench, which held that the appropriate judgment upon an information brought to test the right to exercise a corporate franchise, was, if the respondents were found guilty, that they be fined and ousted from the particular franchise, thus distinguishing the remedy from the ancient writ, on which the judgment was that the franchise be seized into the king's hands. In the celebrated case of the city of London, however, which was that of an information for the mis-user and usurpation of corporate franchises, judgment was rendered that the liberties, privileges and franchises of the corporation be seized into the hands of the king.4

$ 747. At common law, upon judgment by nil dicit, on a quo warranto information, a capiatur pro fine was issued as an interlocutory process for the purpose of bringing the respondent before the court, preparatory to rendering final

'Com. Dig. Quo Warranto, C. 5. And see 3 Black. Com. 263.

Rex v. Trinity House, Sid. 86. 3 Rex v. Mayor of Hertford, 1 Ld.

Raym. 426. And see 3 Black. Com. 263.

4

King v. City of London, 3 Harg. State Trials, 545.

judgment in the cause. Formal judgment of ouster was then rendered by the court, ousting the respondent from his office, although the fine might, under acts of parliament, be pardoned to the offender. And where it was found that the respondent had been guilty of usurpation, judgment of ouster was rendered against him, even though other important issues were found in his favor. Thus, upon an information to show by what authority the respondent exercised the office of mayor, where two issues were presented and tried, the first as to the election, which was found in his favor, and the second as to the swearing in, which was found against him, judgment of ouster was rendered, since the acting as mayor without being sworn was regarded as a usurpation for which the respondent should be punished, even though he might have been entitled to a mandamus to swear him into the office.2 And since the crown was not obliged to show any title, the respondent being required to show a complete title in himself as against the crown, if he failed in any one material issue, judgment was given against him. But where the respondent confessed the

1 Queen . Tyrrill, 11 Mod. Rep. 235.

2

2 In re Mayor of Penryn, Stra. 582. And the same principle is recognized in King v. Reeks, Ld. Raym. 1445, where it is said that the judgment of the court in the case of the Mayor of Penryn was affirmed on error to the house of lords.

3 Rex v. Leigh, Burr. 2143. The respondent in this case had claimed the office of Mayor under two titles, one by prescription, the other under a charter, but by his plea, he had based his defense upon his claim under the prescriptive right, which was tried and found against him. The reporter says: "Lord MANSFIELD asked if they could cite any case where judgment had been refused to the crown upon an information in the nature of a quo war

ranto, where the defendant failed in the title he had set up. Aud it seemed acknowledged that there was none. At least none were mentioned. Whereupon his lordship proceeded to observe that in civil cases, if the plaintiff has no cause of action he can not have judg ment. But this manner of proceed ing is quite different. For, if the defendant has usurped the franchise without a title, the king must have judgment. The defendant, therefore, is obliged to show a title, and the king has no need to traverse anything but the title set up. If any one material issue is found for the crown the crown must have judgment." Mr. Justice YATES adds: "If the plea contains no title against the crown, there must be judgment for the crown. In civil actions the plaintiff must recover

usurpation for a part only of the time alleged, insisting upon an election as to the residue, judgment of ouster was refused, such a case being distinguishable upon principle from that of usurpation for the entire time charged in the information.1

$748. The effect of an absolute judgment of ouster is conclusive upon the person against whom the judgment is rendered, and is a complete bar to his again asserting title to the office or franchise by virtue of an election before the original proceedings. Where, therefore, upon an information in the nature of a quo warranto for exercising the office of alderman, the respondent disclaims all title to the office, thereby admitting his usurpation, and judgment of ouster is rendered against him upon a second information for exercising the functions of the same office, he is concluded from asserting a title under an election held prior to the filing of the former information under which he claims to have been sworn into the office. Nor will the respondent, in such case, be permitted to rely upon a peremptory mandamus, by virtue of which he was sworn into the office under such former election, since a mandamus to swear in an officer can not, of itself, confer title.3

$749. It would seem that the judgment may be good in part and bad in part, and in such case it will be affirmed as to the part held good, and reversed as to the residue. Thus, where judgment of ouster was rendered, together with judg ment for costs under the statute of Anne, and the court was of opinion that the case did not fall within the statute as to costs, that part of the judgment was reversed, and the judg

fails in it, or in any chain of it, judgment must be given against him. Here the defendant has set up a particular title; this title upon which he grounds his claim to the franchise is found against him. He can not now depart from it. Therefore the crown is here entitled to judgment."

Rex v. Biddle, Stra. 952; S. C. sub. nom. King v. Taylor, 7 Mod. 169. King v. Clarke, 2 East. 75. & Id.

2