In the matter of the Union Ins. Co.

the case as we all understand it, to be without the statute requiring bail as a condition of stay, I feel quite clear that this writ of its own proper force, and without any farther bail, ties up the hands of the relator, so that he can have no execution. It, therefore, becomes unnecessary to say, whether the merits of the case be such that we would direct a stay or a supersedeas. Should execution issue pending the writ of error, that being diligently prosecuted, I am quite sure we should be obliged to set it aside.

Of course, any remarks I have made must be confined to writs of error coram vobis. With regard to writs coram nobis, which are also without the statute, the rule is different, as we have lately held in several cases. Smith v. Kingsley, 19 Wendell, 620, and Ferris v. Douglass, 20 id. 626.

The bond in this case is informal; but good enough in substance; and therefore warranted the allowance. However, no action can be required upon the question whether it be good or bad, unless the relator shall move for execution on the ground that it is defective. It is said the bond was not executed by the commissioners of highways. How that is I do not know. Beside, the statute says, if the party be absent, he need not execute. 2 R. S. 494, 2d ed. $26. The motion is denied, on the ground that any rule is unnecessary; but without costs.

In the matter of THE UNION INSURANCE COMPANY.

Where, by the act incorporating an insurance company, the management of the stock and affairs of the corporation is given to a board of twenty-three directors to be annnally elected, a major part of whom by the act are competent to the transaction of all the business of the corporation, and an election of directors takes place, at which only twenty-two persons receive a plurality of votes, such twenty-two persons are duly elected, and take the place of their predecessors, notwithstanding that it chanced that the full number of twenty-three directors was not filled up.

Where, under such circumstances, the old board conceived that the election had wholly failed, and a second election was held by their order, at which twenty-three directors were chosen, this court, upon the summary application authorized by statute, set aside the second election, declared the twenty-two directors first chosen duly elected, and ordered a new election

In the matter of the Union Ins. Co.

to supply the vacancy of the one director who was not chosen at the first election.

Application was made to the court previous to the second election to declare

the twenty-two persons, directors of the company, and to direct the election of one additional director; but the court refused to act upon it, considering the proceeding premature.

It seems, that the stockholders, without any order of the court, have the power to fill up a vacancy happening under the above circumstances; and further, that on the neglect of the board to make order for an election to supply such vacancy, that a mandamus would lie.

CORPORATION election. The Union Insurance Company was incorporated in 1818; its charter was amended in 1819, and was extended in 1837. Statutes of 1818, p. 63; 1819, p. 130; 1837, p. 110. At the annual election for twenty-three directors of the company, held on the 13th day of January last, some of the stockholders voted for the whole number of persons to be chosen directors; others voted for only twenty-two, and some voted for a less number. On canvassing the votes, it was found that John Ferguson and others, in all twenty-two persons, had a plurality of votes, and that fifteen other persons having the next greatest number of votes, each had an equal number of votes, and consequently there was no election for the twenty-third director. The old board of directors, after taking counsel, were of opinion that the most expedient and safe course was to treat the election as having wholly failed, and to order a new election for the whole number of twenty-three directors. Having no by-law providing for the case, they, in pursuance of R. S. 597, $42, ordered the election to be held on the tenth day of February. Previous to which day, at a special term of this court held in February, Mr. Justice CowEN presiding, J. I. ROOSEVELT, jun. of counsel for John Ferguson, moved for a rule declaring the twentytwo persons who received a plurality of votes at the election held in January, duly elected directors of the company, and directing the election of an additional director, so as to make up the whole number of twenty-three directors. R. EMMETT, of counsel for the old board, insisted that the court, in the present stage of the proceedings, could not take cognizance of the case, and that the remedy of the re

In the matter of the Union Ins. Co.

lator, if any, was by information in the nature of quo warranto. At the March special term, the following opinion was delivered :

By COWEN, J. The first objection raised by the opposing counsel is, that this court has no jurisdiction. That depends on the true construction of the act, 1 R. S. 600, § 57, 8, 2d ed. The article to which the sec tions quoted belong, (article 2d,) contains various regulations concerning the election of directors of moneyed corporations. Then section 57 provides, "that if any person shall conceive himself aggrieved by an election or any proceeding concerning an election of directors or offcers in any such corporation, he may apply to the supreme court for redress, giving a reasonable notice of his intended application, to the party to be affected thereby." Section 58 requires this court to proceed in a summary way, &c. and make such order and grant such relief as the circumstances and justice of the case shall seem to require. If the election be set aside, we are authorized to order a new election, at such time and place as we may appoint. Id.

It is objected that the statute presupposes an election to have taken place; and that the party comes by motion to set it aside, on the ground that some proceeding in respect to it was irregular; but that in this case, he applies, in the first place, for a confirmation of an election already made as to twenty-two of the directors, and as to the twenty-third, for a direction that the officers proceed to an election, none having been made; and it is denied that we have power to interfere upon either branch of the application.

It appears to me that the matters intended to be provided for by the general words of the 57th section were no more than cases of election to which an information in nature of a quo warranto would be applicable. A party must be aggrieved by an irregularity in respect to some corporate election, and no doubt he must be aggrieved in a legal sense. In the case at bar, the relator insists that the twenty-two directors were legally chosen, and that the inspectors reported specially showing that they were so chosen; but he admits VOL. XXII.

75

In the matter of the Union Ins. Co.

that they have not, as yet, been disturbed by the intrusion of others elected to their place. He complains, however, that the former directors, claiming to hold over, threaten and have taken proceedings to elect an entire board, on the assumption that the election of the 13th of January was entirely void. I think we have no power to interfere by staying those proceedings; taking it for the present that the old board are rightfully holding over till the new board shall be completed. I shall not deny that an information might be applicable at some stage. In England it has been doubted whether it will lie at all, at least whether the king's bench will, in general, allow it against one illegally usurping an office in a private corporation. So far as the right to office is in question, it has been held that the remedy will not in general be allowed, except where the public are concerned, which in respect to corporations can be said only of those which are municipal. This subject was very fully examined in the Commonwealth v. Arrison, 15 Serg. & Rawle, 127, where, although the doubt of which I have spoken is conceded as to England, it is, I think, clearly shown, that in this country the information may be freely used for trying the right to offices in private as well as public corporations. Most of the cases to that effect are there cited and considered. They arose in the neighboring states, and the doctrine certainly does not seem so clearly to have been understood in this court. It was, however, explicitly adopted by the 2 R. S. 482, 2d ed. $28, sub. 1. And by section 59 of the statute upon which this application is founded, 1 R. S. 601, 2d ed. we are authorized to withhold summary interference, if we think it best, and turn the relator, in a proper case, over to an information. The section says we may do that, if the case be such in which that remedy would be competent and effectual. This provision that the case must be such, &c. probably alludes to the distinction between a proceeding to oust an usurping officer, and a proceeding to compel a new election where a previous election has been set aside. In the latter case though we may, by a special provision of the 58th section, id. 600, order a new election, yet it is plain that this would be a proceeding rather in the

In the matter of the Union Ins Co.

nature of a mandamus than a quo warranto.

The People

v. Corporation of New-York, 3 Johns. Cas. 79. I venture to say that a judicial proceeding merely to affirm an election quia timet is entirely without precedent, even with regard to municipal offices, where the inquiries have been instituted with the greatest freedom. I cannot believe the statute intended we should interfere in our discretion, as we may do in the course of an ordinary lawsuit. It is true the mere words which give power over any proceeding concerning an election, might by a liberal construction authorize us to do so. But a mere irregularity does not complete the case. There must be a party aggrieved, who is to make the motion. This motion does not concern any suit pending here, but is a summary remedy in nature of a suit, like a petition in partition, or a summons under the landlord and tenant act. In all such cases it is our business to see that there is some injury known to the law, and for which a remedy before existed. The statute is not intended to enlarge the catalogue of rights or wrongs, but merely to remedy those already known in a more summary way. The old method by writ of quo warranto was extremely dilatory, whence an information was introduced in its place; and although this was much more rapid, yet it was found unequal to that dispatch which the exigencies of money corporations sometimes demanded. Hence the statute upon which we are now moved. The whole is obviously but the substitution of remedies for wrongs already known to the law. To constitute a grievance in regard to either real or personal property, there must be some ouster or withholding of possession; and by a plain analogy, no party can be deemed technically aggrieved in respect to a corporate office, till that is withholden from the legal incumbent. It is not of the nature of legal remedies merely to declare that a party in the undisturbed possession of his rights. holds that possession legally, or that the menaces of another to oust him are contrary to law. Courts have enough to do in relieving him after he is disturbed. Short of this they can do nothing practically operative-they can only speculate. There is, technically, no offender against whom they can act ; no sufferer whom they can relieve.