Rex v. Williams. Mic. 31 G. 2. Rexv. Ponfonby, 25 G. 2. Queen v. Blagdea, 11. 12 An. C1. K. B. 225. 4 Co. 78. Rex an. Philly 5, epurt exhibit informations in the nature of quo warranto, at the relation of any perfon defiring to profecute the fame, and who fhall be mentioned in the information to be the relator; and ifit fhall appear to the court, that the feveral rights of divers perfons to the faid offices or franchises may properly be determined in one information, the court may give leave to exhibit one information against feveral perfons. And the act gives cofts both to the relator and defendant. There are many cafes not mentioned in the act, in which informations in nature of quo warranto will lie, for the court's power of granting fuch informations is not founded upon that act, but that act was made for regulating the proceedings in them in certain cafes relating to corporations. If it be an information at common law there is no relator, nor ought there to be judgment for cofts, but only a capiatur pro fine. There must be an ufer as well as a claim, in order to fubject the party to an information, for the judgment is, that he fhall be fined pro uju et ufurpatione. But though an inmation will not lie for a non-ufer, yet it will be a good caufe of amotion. Not guilty and non ufurpavit are not good pleas, as appears evidently from the nature of the charge, which is to fhew by what warrant or authority, to which thofe pleas are no anfwer. The defendant must either juftify or difclaim, Where the election of mayor, aldermen, &c. is by charter given to the commonalty or nur geffes at large, the corporation may, to avoid popular contufion, m. kes by saw to refrain the power of election to a felect number (ex. gr. to the mayor and aldermen, mayor and common council, and the like) and though there be no fuch by-law to be found, yet conftant ufage will be a proof that there was fuch a one, and the court will intend it; therefore it is in daily practice to plead fuch a fuppofed by-law to an information es made at a particular time, and then upon fue joined thereupon fupport it, by proving that the elections have been from about that time agreeable to fuch fuppofed by-law. But if the charter dire& the mayor, aldermen, &c. to be chofen out of the burgefles at large, a by-law cannot refrain the election, and order that the mayor, aldermen, &c. fhall fhall be chofen out of the common council or other fele&t number, for fuch by-law would not be advantageous but prejudicial to the corporation, as it would confine them in their choice. Hitherto I have taken notice only of fuch informations as are brought against particular perfons for ufurping offices, but this fort of information will lie likewife against perfons or corporations for ufurping franchises. Therefore where the mayor and common council of Hart- Ca. K. B. 2254 ford took upon them to make ftrangers free of the corporation without being qualified according to the charter, the court granted an information in nature of a quo warranto against them, because the injured freeinen of the town had no other way of remedying themselves or of trying the right. So it will lie against a private perfon, or against a corporation, for nolding a market, or holding a court leet or other court, or for exercifing any other franchife. And as the de fendant muft in his plea fet out a title, it is neceffary to obferve in this place what franchifes may be claimed by prefeription, and in what cafes it is neceflary to fhew a grant, or an allowance in eyre, which is tantamount to a grant. It is laid down in Foxley's cafe, that whatever may be gained by ufage without matter of record, may be claimed by prefcription, fuch as waifs, eftrays, treasure trove, &c. But fuch things as are not forfeited but by matter of record, as felons goods, cannot be prefcribed for. 5 Co. 109. 9 Co. 24. So a man may prescribe tenere placita, but not to have conu- Salk, 183, 4zance of pleas; therefore if the charter granting it be before time of memory, viz. before the 1 R. 1. it cannot be pleaded; but by the ftatute de quo warranto you may lay an usage time out of mind, which is an argument of an ancient grant, and thew the allowance in eyre. There is a point of law which fometimes comes in queftion in trials of this fort of informations, which therefore ought to be taken notice of in this place, and that is the operation and effect of a new charter. If a corporation refufe a new charter, it is void; but if they Comb. 316. accept and put it in execution, it is good. Whether a corporation have accepted a new charter or not, is commonly matter of evidence, not of law; and proof of acting under it is proof of an acceptance. A new Ca. K. B. 247. 253. 4 Co 87. Ventr. 355 Rex. Larwood A new charter was granted in confideration of the furrender of the old one; the old one was in fact furrendered, but the furrender was not inrolled, wherefore the new one was void: but the members under both charters being the fame, what they did being warranted by the old charter was holden good. By accepting a new charter, granting new rights, or giving a new name of incorporation, without a furrender of their old charter, the corporation will not lofe any of their former franchifes. By charter of H. 4. Norwich was made a county, and to have two sheriffs to be chofen by the commonalty. Car. 2. by charter confirmed their former charter, but granted further that one fheriff fhould be chofen by the mayor, sheriffs and aldermen only; per Heit Ch. Juft. The king cannot refume an interest he has already granted, unless the grantees concur; the corporation might have used this as a new grant or conArmation, but having made their elections according to it, it is evidence of their confent to accept it as a grant. PART PART V. Containing ONE BOOK. Of Traverfes and Prohibitions. INTRODUCTION. HERE ftill remain two other fpecies of fuits which may be tried at Nifi Prius, and which therefore fall within the compass of this treatife; and they are traverses of inquififitions of office, and prohibitions. CHAP I Raym. 370. 1 Raym. 746. Co. L. 47. Cr. J. 320. Ryley v. Pickes, M. 2 G 2. per Kaym. Per Holt, at Stra. 705. 1 Vent. 286. plaintiff is bound to repair, for he might have had covenant against him; but he may give in evidence, entry and eviction by the plaintiff. But if the leffor enter by virtue of a power reserved, or as a mere trefpaffer, yet if the leffee be not evicted, it will be no fufpenfion of the rent. On nil debet the plaintiff proved a note by which the defendant agreed to hold for a year at 157. the plaintiff was grantee of a reverfion, and the life at that time dead, but he had never been in poffeffion: the defendant was permitted to give in evidence a prior grant of the reverfion notwithstanding the note: but Holt Ch. Juft. faid, if the plaintiff had ever been. in poffeffion, though but as tenant at will, the defendant could not give in evidence nil habuit, in tenementis, without having been evicted. So he may plead non demifit, and give the special matter in evidence, but if the leafe were by indenture he could not plead this plea, for an indenture concludes both parties. In debt for rent the defendant pleaded infancy at the time of the leafe made, and upon demurrer the court held the lease voidable only at the election of the infant, by waiving the land before the rent day comes, but the defendant not having fo done, and being of age before the rent day came, the plaintiff had judgment. A leafe by parol for a year and an half, to commence after the expiration of a leafe which wants a year of expiring, is a good leafe within the ftatute of frauds, for it does not exceed three years from the making. If the defendant infift that the leafe declared on is not the plaintiff's, the plaintiff may fhew it was made by A. who had authority from him to execute it in his name, and the authority need not be produced. But the leafe must be made and executed in the name of the principal. By the 32 H. 8. c. 37. The executors and adminiftrators of tenants in fee, fee tail or for life of rent services, rent charges, rents feck and fee farms, may bring debt for the arrearages against the tenant who ought to have paid the fame. For the conftruation of this ftatute, vide ante paf 1 lib. 2. cap. 4.-The action is local, and must be brought where the land lies. Note; detinet for rent against an executor must be brought where the leafe was made, because it is for arrears in the teftator's time: but when it is in the debet and detinet for rent ac crued |