junction in such cases; Salmons v. Laing, 12 Beav., 339; Mayor, etc., v. Groshan, 30 Ind., 436; Smith v. Bangs, 15 Ills., 399; Sears v. Hotchkiss, 25 Conn., 171; Illinois, etc., v. Cook, 29 Ills., 237; Brown v. Pacific Mail Steamship Co., 5 Blatch., 525.

And this remedy may be had, under certain circumstances, even where a remedy at law exists, for the fraudulent mismanagement of the directors. Sears v. Hotchkiss, 25 Conn., 171.

CHAPTER VII.

PROCEEDINGS FOR A FORFEITURE.

FIFTEENTH SELECTED CASE.

THE COMMONWEALTH V. THE COMMERCIAL BANK.*

An information upon which a writ of quo warranto is founded is amendable either on or at any time before the trial. Therefore, objections to mere matter of form in the information, which may be removed by amendments, do not furnish a ground for quashing the writ.

The law of Pennsylvania in regard to the form of pleading in quo warranto remains as it was before the act of 1836. The Attorney-General may disclose in his information the specific ground of forfeiture, or he may merely set forth the franchises alleged to have been illegally exercised and call upon the defendant to show by what authority they are held.

The constant and willful violation by the bank of the fundamental conditions upon which the charter was granted entitles the Commonwealth to demand the forfeiture of its franchises. Abuses of this kind are of such magnitude and affect the public so injuriously, that, when willfully persisted in it becomes a duty of high obligation on the part of those in authority rigidly to enforce the forfeiture.

Where a bank is prohibited by its charter from making loans at a greater rate of discount than one-half of one per centum for thirty days, and from dealing in promissory notes, if it willfully violates these restrictions by discounting at higher rates than those allowed, or by dealing in promissory notes, otherwise than by discounting them at the rate prescribed, such acts constitute a good ground of forfeiture.

THIS was a motion to quash a writ of quo warranto issued out of this court at the relation of the Attorney-General against the Commercial Bank of Pennsylvania.

*Reported in 28 Pa. St., 383 (1857).

The information upon which the writ had issued charged that the bank had been incorporated by an act of Assembly passed 21st of March, 1814; that in and by said act it was expressly enacted and declared to be a fundamental article of said corporation that the rate of discount at which loans might be made by said corporation should not exceed one-half of one per centum for thirty days; that in and by said act it was also expressly enacted and declared to be a fundamental article of said corporation that the rate of discount at which loans might be made by said corporation should not exceed one-half of one per cent for thirty days; that in and by said act it was also expressly enacted and declared to be a fundamental article of said corporation that the said corporation should not deal or trade in anything but bills of exchange, gold or silver bullion, stocks of banks incorporated by the State of Pennsylvania, and United States treasury notes, or goods pledged to the said corporation for money lent and not redeemed in due time, or goods which might be the produce of their lands; that by an act passed 25th March, 1824, the charter of said bank was continued to the first Wednesday of May, 1835; and that by several subsequent acts; viz., 2d March, 1831, 26th April, 1849, and 2d April, 1849, the said charter had been further continued from time to time by the legislature, subject to all the provisions, restrictions and limitations contained in the original act of incorporation; that the said bank had repeatedly violated and broken the fundamental articles of their act of incorporation, and greatly perverted and abused their corporate powers in this: that for many months past the said bank had been in the constant practice of discounting promissory notes at exorbitant and usurious rates of interest far exceeding the rate of one-half of one per centum for thirty days; that the said bank received in the month of May, 1854, $2,115.50 for such usurious, unlawful and prohibited discount; in the month of June, $1,845.50; in July, $2,213; in August, $1,727.50; in September, $1,160; in October, $2,040; that between May and October the said bank received between seven and twelve thousand dollars, profits made exclusively from usurious discounts of promissory notes. That the said bank had also for a long time past; to-wit., from the 1st of May, 1854, been engaged in

dealing in promissory notes contrary to the express prohibition contained in the fundamental articles of incorporation. That the said bank, in committing the several unlawful acts aforesaid, have willfully abused its corporate powers, perverted the objects for which it was incorporated, usurped powers and functions which were expressly prohibited to them in their fundamental law, and by reason of said abuses, usurpations and unlawful acts, have forfeited the corporate rights and franchises conferred upon it by the several acts of Assembly aforesaid.

The defendants filed the following reasons in support of the motion to quash the writ of quo warranto:

1. Because the suggestion does not set forth with legal precision the facts upon which is founded the charge of the said supposed usury.

2. Because the suggestion is defective in this, that it sets forth legal conclusions instead of facts; that it sets forth instead of specific offenses against the charters vague and undefined generalities not capable of being met and answered.

3. Because the case set up is not a case of forfeiture under the law.

4. Because, if it were a case of forfeiture, the discretion of the court would induce them to forbear the imposition of so great a penalty upon the offense laid.

5. Because there is not to be found in the case anything to lead the court in the discretionary exercise of their authority over the writ to grant a rule. Upon the calling of the motion the counsel for the Commonwealth moved for leave to amend their information by adding twelve additional counts, which set forth the offenses charged in the original information in a variety of ways.

The opinion of the court was delivered by LEWIS, CH. J.

A writ of quo warranto having issued against the Commercial Bank, upon a suggestion filed by the Attorney-General, alleging that the bank had forfeited its charter by certain acts of misuser, the present motion was made to quash the writ. A number of reasons have been assigned in support of the motion, but they may be resolved into two. One goes to the

formal defects in the manner of setting forth the complaint; the other to the merits, and raises the question whether the acts complained of are sufficient to entitle the Commonwealth to demand a forfeiture of the charter. It is clear that if the Commonwealth has a right to amend the information, either on or at any time before trial, she cannot be put out of court and thus deprived of that right, by a summary motion to quash for mere defects of form in the suggestion. In England an information, even where the object is the punishment of a criminal offense, is not like an indictment, which is the finding of the grand jury and therefore cannot be altered in substance by amendments; but informations may be amended at any time before trial. 1 Str., 185; 2 Str., 871; 1 Salk., 371; 4 T. R., 610; 4 Burrow, 2147. For this reason they will not be quashed on motion of the defendant, except it appear that the court had no jurisdiction to try them. 1 Chit. Crim. Law, 689. If this be the rule in England, even in informations for criminal offenses, we see no reason why the right to amend should not be allowed with great liberality in this country, in cases designed solely for the determination of civil rights. Such is the character of the proceeding now before us. 1 S. & R., 382. We are of the opinion that the Commonwealth has the right to amend this case either on or at any time before the trial. It follows that objections to matters of form which may be removed by amendment, do not furnish a ground for quashing the writ. In connection with this branch of the case, it seems proper to bear in mind that the act of the 14th of June, 1836, does not require the suggestion to set forth the facts more fully than had theretofore been required in informations. In this respect it differs from the North Carolina statute of 1831, which requires the information to set forth the ground of forfeiture, and was designed to have the whole matter of accusation specified at once in the information. 6 Iredell, 461. The law of this State in regard to the form of pleading in cases of this kind, remains as it was before the act of 1836. The Attorney-General may disclose in his information the specific ground of forfeiture, or he may merely set forth the franchises alleged to have been illegally exercised and call upon the defendant to show by what