tled, the plea must be set aside.' The general statutes of double pleas in England,' and New York,' do not extend to informations in the nature of a quo warranto; and there is no instance in which the court has given leave to plead two pleas.* But in England, under the statute 32 Geo. 3, c. 58, the defendant may plead several pleas. This statute also gives the defendant leave to plead, that he has held the office for six years previous to the filing of the information, either singly, or with other pleas. To make out his title to an office, &c. the defendant, and indeed each party, must set forth in his pleadings so much of the charter or act of incorporation as he relies upon, without indeed it be set forth in the interior pleadings," or, as in case of some of our State banks, is of a public nature. It would seem that the pleas need not set forth that the charter had been accepted by the stockholders, since the information admits the existence of the corporation, or that it once had a legal existence."

8

Where a company was incorporated on the condition, that it should, "within ten years from the passing of the act, fur

Rex v. Jones, 2 Stra. 1161.

9 Anne, ch. 16, § 4.

31 R. L. (N. Y.) 519, § 9.

Rex v. Newland, Sayer, 96; Rex v. Leigh, 4 Burr. 2146, Sir Fletcher Norton and Lord Mansfield; 4 Cowen (N. Y.) R. 113, n.; People v. Jones, 18 Wend. (N. Y.) R. 601; Rex v. Powell, 8 Mod. 180.

32 Geo. 3, c. 58, cited Rex v. Autridge, 8 T. R. 468; Rex v. Stokes, 2 M. & S. 71.

32 Geo. c. 3, 58, § 1; Rex v. Richardson, 9 East, 470; Rex v. Stokes, 2 M. & S. 71; Rex v. Lawrence, 2 Chit. R. 371. But query, whether this statute enabling defendants in quo warranto to plead double, is confined to corporate offices. Rex v. Highmore, 5 B. & A. 771; 1 D. & R. 438. Chest. Cas. 549, 551; Rex v. Smith, 2 M. & S. 597.

• State v.

9

Ashley, 1 Pike (Arkan.) R. 514.

People v. Niagara Bank, 6 Cowen (N. Y.) R. 196; Bank of Auburn v. Aiken, 18 Johns. (N. Y.) R. 137; Wood v. Jefferson County Bank, 9 Cow. (N. Y.) R. 194; Utica Ins. Co. v. Tillman, 1 Wend. (N. Y.) R. 555; People v. Saratoga and Rensselaer Railroad Co. 15 Wend. (N. Y.) R. 125; see, however, State v. Ashley, 1 Pike (Arkan.) R. 514; State v. Harris, 3 Pike (Arkan.) R. 573.

nish and continue a supply of pure and wholesome water, sufficient for the use of all such citizens dwelling in said city as shall agree to take it on the terms to be demanded by the company, in default whereof the corporation shall be dissolved," and an information in the nature of a quo warranto was filed against them, it was held, that the company being declared a body politic, and corporate in presenti, and having ten years to perform the acts required of them, the proviso was a defeasance, and not a condition precedent, and that therefore they were not bound in their plea to set forth the condition and allege performance, even for the purpose of showing a present right, although at the time of plea, the period limited by the proviso had long since expired; as in judgment of law, a corporation once shown to exist is presumed to continue, until the contrary be shown. In alleging a breach of this condition, the court held that the attorney-general was bound to name such citizens as were willing to agree, &c., and that the naming of one individual would have been sufficient, and that he was also bound to aver a request on the part of those citizens who wished a supply of water, or an offer to pay for it, or that the defendants had notice of such willingness or desire. A general allegation of the breach, "that the defendants have not furnished or continued a supply of water sufficient (or a supply or any other quantity of pure and wholesome water) for the use of such citizens dwelling in the city of New York, as were willing to agree for and take the same as aforesaid," was held not to be an allegation of a material fact on which issue could be taken, as it tended to an issue upon an emotion or affection of the mind, which is not traversable or susceptible of trial.3

If the right of election or admission is in a select body of the corporation, the defendant must show how they became possessed of that right, by setting forth specially in his plea the custom or clause in the charter conferring it upon them. He

The Manhattan Company, 9 Wend. (N. Y.) R. 351.

* Rex v. Lyme Regis, Doug. 153.

must with certainty set forth the custom or clause in the charter prescribing the mode of election;' must show a vacancy of the office to which he was elected,' and his own legal election and admission. If the defendant's plea admits his user of the office, and is insufficient, or if he demurs and fails on demurrer, judgment must pass against him, and a repleader will not be awarded, though the plea raised an immaterial issue. It is no answer to an allegation against a turnpike company, alleging as ground of forfeiture, that they have not kept their road in repair, that the individuals aggrieved have their remedy by private action; or that the gates of the turnpike company may be thrown open by public officers, when the road is so much out of repair as to amount to a nuisance; or that a penalty is imposed for a particular nonfeasance, unless the remedy by information is in such case taken away by express terms, or necessary implication. Nor does a bond given by a grantee of the franchise of keeping a toll bridge, in pursuance of a statute requirement, that he would erect and complete the bridge, take away the proceeding by information, the bond being considered but a cumulative remedy."

7

It seems that the prosecutor may demur to the whole plea, and reply to particular parts of it; or he may reply specially, and put as many new matters in issue as he pleases, provided the new matter be consistent with that contained in the plea.*

Rex v. Birch, 4 T. R. 610; Rex v. Haythorne, 5 B. & C. 427; Rex v. Hill, 4 B. & C. 443; Rex v. Rowland, 3 B. & A. 134; Rex v. Holland, 2 East, 74.

Rex v. Smith, 2 M. & S. 597.

.2

Rex v. Holland, 2 East, 74; Rex v. Lisle, Andr. 174; Rex v. Smith, 2

M. & S. 599, 600.

4 Rex v.

Phillips, 1 Stra. 397; Rex v. Boyles, 2 Ld. Raymd. 1560; Rex v. Patteson, 4 B. & Adolph. 9; 1 Nev. & M. 612.

5

People v. Bristol & Rensselaerville Turnp. Road, 23 Wend. (N. Y.)

R. 222; People v. Hillsdale and Chatham Turnp. Road, Ibid. 254.

Rex v. Latham, 3 Burr. 1487; S. C. Rex v. Lathrop, 1 W. B. 471;

Rex v. Knight, 4 T. R. 424.

If several things are necessary to constitute a complete title in the defendant, issue may be taken on each, and if any one of the issues, on a fact material to the title, be found against the defendant there shall be judgment of ouster, and the defendant shall pay the costs on all the issues.' The replication may impeach a necessary qualification of the defendant to an office, set forth in the plea as possessed by him; or allege that the corporation was not "in due manner" assembled for the election of officers at the time of the defendant's election, though the words "in due manner" are implied in the averment, that the corporation was not assembled for the purpose of electing." It may impeach the title of the presiding officer of the assembly at which the defendant was elected, thus showing the illegal nature of the assembly, and that too, it seems, even though the presiding officer be dead. It may impeach the title of the defendant, by impeaching the legality of the titles of those who voted for him, at least, if their titles cannot be impeached by an information directly filed against them; but, it seems, that where informations could have been obtained against the electors, as in all cases where they elect in right of a corporate franchise, it is sufficient for the defendant that they were de facto in the enjoyment of their franchise. Where the plea is, that the election was according to the charter, the replication should be, not duly elected; for this puts everything in issue.“

1 Bac. Abr. Informations, D.; Rex v. Hearle, 1 Stra. 627; 2 Ld. Raymd. 1447; Rex v. Downes, 1 T. R. 453.

2 Rex v. Brown, 4 T. R. 277; Piper v. Dennis, 12 Mod. 253.
Rex v. Hill, 4 B. & C. 443.

Rex v. Hebden, 2 Stra. 1109; S. C. And. 392; Rex v. Spearing in Rex v. Stacey, 1 T. R. 4, n.; Rex v. Smith, 5 M. & S. 279. This right to impeach the title of the presiding officer is restricted in England by 32 Geo. 3, c. 58, § 3.

5 Rex v. Penryn, 8 Mod. 216; Rex v. Pyke, 8 Mod. 287; Rex v. Hebden, 2 Stra. 1109; S. C. Andr. 381; Symmers v. Regem, Cowp. 503; Rex. v. Grimes, 5 Burr. 2601; Rex v. Mein, 3 T. R. 598; Rex v. York, 5 T. R. 72; Rex v. Hughes, 4 B. & C. 377, 378; 6 D. & R. 443; Rex v. Smith, 5 M. & S. 279.

Rex v. Hughes, 4 B. & C. 376.

If the defendant and prosecutor in the pleadings both treat the former's admission as if it was an election, they cannot treat it otherwise on the trial, so as to affect the pleadings.' The replication must not be argumentative; and where it sets forth a condition on which a duty of the corporation arises, the facts which go to make up the condition, should be averred with all the exactness of pleading required in an action for a penalty.'

Where an information charges a corporation generally with usurpation, and the defendants set forth their charter and justify under it, it is no departure for the prosecutor to reply the causes of forfeiture. But if the defendant relies upon a charter qualification in his plea, and sets out a by-law introducing a different qualification in his rejoinder, and relies on it, it is a departure."

The admission of a party to the proceedings may be read against him; but an agreement of counsel for a rule to show cause is, like a demurrer, an admission only for the purpose

1 Symmers v. Regem, Cowp. 501.

Rex v. Hughes, 4 B. & C. 377.

People v. Kingston and Middletown Turnp. Co. 23 Wend. (N. Y.) R. 215, Cowen, J.; People v. Manhattan Co. 9 Wend. (N. Y.) R. 373, 375, Sutherland, J.

The People v. the Bank of Niagara, 6 Cow. (N. Y.) R. 196; Same v. Wash. & Warr. Bank, Ibid. 211; Same v. Bank of Hudson, Ibid. 217; Rex v. Amery, 2 T. R. 515; Case of City of London, 3 Hargrave, St. Trials, 545; 1 Blk. Comm. 485; 2 Kyd on Corp. 486, 487.

5 Rex v. Weymouth, 7 Mod. 374; S. C. 4 Bro. P. C. 464; but see Rex v. Hughes, 4 B. & C. 368. For forms of pleas, see 4 Cowen, (N. Y.) R. 113, 117, n. a. For forms of replications, see 6 Wentw. Plead. 28 to 242; The State v. Foster, 2 Halst. (N. J.) R. 101; 4 Cow. (N. Y.) R. 148, n. a.; The People v. the Bank of Niagara, 6 Cow. (N. Y.) R. 196. For forms of demurrers and joinder, see 6 Wentw. Plead. 113, 106, 62, 52, 152; The People v. Utica Ins. Co. 15 Johns. (N. Y.) R. 265; 4 Cow. (N. Y.) R. 148, 149. For forms of rejoinders, see 6 Wentw. Plead. 58, &c.; State v. Foster, 2 Halst. (N. J.) R. 103; 4 Cow. (N. Y.) R. 119, n. a. ; The People v. The Bank of Niagara, 6 Cowen, (N. Y.) R. 200, 201. For forms of joinders in demurrer, see the People v. Utica Ins. Co. 14 Johns. (N. Y.) R. 365; 6 Wentw. Plead. 114, 62, 52, 152, &c. For form of surrejoinder, see 6 Wentw. Plead. 58; 4 Cow. (N. Y.) R. 119, n. a.