dict on an issue directed out of a court of equity, to try whether the defendants were partners, and for what time, on a bill filed by one of them against the other, is admissible evidence to establish a partnership, the verdict having found them to be so.

A person who suffers his name to be used in a firm', although he thereby makes himself a partner to the world, yet if in fact he is not so, nor has any share in the profits, may be a witness in an action brought by the other parties in the firm, for goods sold and delivered.

A father who holds out to the world that his son is his partner, and who sends bills, and signs receipts in their joint names, in an action brought in his own name, is not precluded from shewing that his son is not a partner".

When a partnership is dissolved", it is not dissolved with regard to things past, but only with regard to things future. Hence an admission made by one of two partners after the dissolution of the partnership concerning joint contracts, that took place during the partnership, is competent evidence to charge the other partner.

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 shew that it was due jointly from himselfand his partners'.

CHAP. XXXII.

QUO WARRANTO.

I. Of the Origin and Nature of Quo Warranto Informations, and Statutes relating thereto, viz. Stat. 4 and 5 W. & M. c. 18. and 9 Ann. c. 20.-Proceedings against the City of London in the Time of Charles the 2nd. II. In what Cases the Court will grant an Information in nature of Quo Warranto.—Of the Corporation Act, Stat. 13 Car. 2. Stat. 2. c. 1.—-5 Geo. 1. c. 6. Test Act, 25 Car. 2. c. 2. III. Of the Limitation of Time for granting an Information.

IV. Of the Construction of Charters, and of the
Operation and Effect of a new Charter.

V. Bye-laws.

VI. Of the Inspection of the Records of the Corporation.

VII. Of the Pleadings.

VIII. Evidence.

IX. Judgment.

I. Of the Origin and Nature of Quo Warranto Informations, and Statutes relating thereto, viz. Stat. 4 and 5 W. & M. c. 18. and 9 Ann. c. 20.—Proceedings against the City of London in the Time of Charles the 2nd.

THE ancient writ of quo warranto (1), whence the infor

(1) See the form in Rastal's Entr. 540. b. ed. 1670, where the writ appears to have been prosecuted by the king's attorney-gene

mation 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 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; and upon this principle the court refused to grant an information to try the validity of an election to the office of church-warden.

By stat. 4 and 5 W. & M. 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 misdemeanor, or issue any process thereon, before he shall have taken &c. a recognizance from the prosecutor to the defendant, in the penalty of 20l. 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, 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 misdemeanors, yet it has been holden to extend to

a R. v. Shepherd, 4 T. R. 381. R. v. b R. v. Howell, Ca. Temp. H. 247. Dawbeny, Str. 1196. S. P.

ral before the justices in Eyre, who were empowered by stat. 18. Ed. 1. stat. 2. s. 2. (A. D. 1290.) to determine pleas of quo ward ranto. See 2 Inst. 497.

(2) See Rast. 540. b.

informations in nature of quo warranto, to try the right of usurping on public franchises; consequently such informations cannot be filed without leaves, nor can process be issued thereon without a recognizance, 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 farther (3).

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 shall usurp, intrude into, or unlawfully hold, and execute any of the said offices or franchises (5), the proper officer of the court (6) 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 farther time be al

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

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

(5) i. e. the offices of mayors, bailiffs, portreeves, 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. 379.) 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.

(6) Court of King's Bench, courts of sessions of counties pala tine, or courts of grand sessions in Wales.

lowed by the court, and the prosecutors are to proceed with the most convenient speed.

By the 5th section, the courts are authorized to give judg ment 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 Ann. a private person could not interpose in quo warranto; the crown only, 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 must be filed with leave of the court. The courts will not stay proceedings until the prosecutor give 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.

It was observed by Wilmot, J., in R. v. Trelawney, 3 Burr. 1616. that the two acts of parliament (of 4 and 5 W. and M. 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 pro vides, that these informations (as well as those for misdemeanors) 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".

The stat. 9 Ann. c. 20. only regulates the proceedings of informations against individuals usurping offices or franchises in corporations; 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

f Per Lord Mansfield, C. J., in R. v. Trelawney, H. 5 Geo. 3. MS.

R. v. Wynne, 2 Maule & Selwyn, 346.

b R. v. Warlow, 2 Maule & Selwyn, 75.

iRv. Corporation of Carmarthen, 2 Burr. 869.

k

Horn v. Cutlers' comp., B. R. E. 9 G. 2. MS.