of the respondent to the office in question,12 and must conclude with a verification. 18 To an information charg ing individuals with claiming, using, and exercising the franchise of being a body corporate, it is sufficient for the defendant to deny the user of the alleged franchise, without denying the claim.14 If the defendant be charged with usurping an office, he may set up several titles thereto.15 The appearance of the defendant to an information, for any purpose other than to challenge the jurisdiction of the court, operates as a waiver of all defects in the summons.16 If the complaint avers facts sufficient to show a forfeiture of the defendants' corporate franchise, an answer which does not deny them cannot set up an excuse for the forfeiture.17 It is no answer to a quo warranto that there is a remedy by private action, or indictment, 18 or that the charter also gives another remedy; 19 nor is it any defense, that the company, pursuant to the charter, gave a special security for the fulfillment of the charter's conditions.20 In New York, the position of the defendant, the rules of evidence, and the presumptions of law and fact, are the same in an action in the nature of a quo warranto as in the proceeding by writ or information, for which the remedy by action was substituted.21

1 State v. Brown, 34 Miss. 688; People v. Stratton, 28 Cal. 382. 2 Att.-Gen. v. Mich. State Bank, 2 Doug. (Mich.) 359.

3 Winchelsea Causes, 4 Burr. 1963; compare Rex v. Powell, 8 Mod. 165; People v. Vail, z0 Wend. 12; People v. Oakland County Bank, I Doug. (Mich.) 285.

4 Winchelsea Causes, 4 Burr. 1962; and see State v. Lehre, 7 Rich. 234; State v. Brown 5 R. I. 1.

5 See Rex v. Brooks, 8 Barn. & C. 321; Reg. v. Francis, 12 Eng. L. & Eq. 419; State v. Beecher, 16 Ohio, 362; State v. Alexandria Soc. 11 id. 9.

6 State v. Pawtuxet Turnp. Co. 8 R. I. 521.

7 People v. McCullough, 11 Abb. Pr. N. S. 129.

8 People v. Sweeting, 2 Johns. 184; State v. Jacobs, 17 Ohio, 143; Commonw.v. Athearn, 3 Mass. 285; Morris v. Underwood, 19 Ga. 559; Commonw. v. Sparks, 6 Whart. 416; People v. Hartwell, 12 Mich. 508; Lacoste v. Dufy, 49 Tex. 767; 30 Am. R. 122. But compare Rex. Payne, 2 Chit. 367; Reg. v. Hodson, 4 Ad. & E. N. S. 648 n.; People v. Hartwell, 12 Mich. 598; Commonw. v. Smith, 45 Pa. St. 59; Hunter v.

Chandler, 45 Mo. 452; Burton v. Patton, 2 Jones' L. 124; The Queen . Blizard, Law R. 2 Q. B. 55.

9 Rex v. Mayor etc. 3 Barn. & Ald. 590; Rex v. Heaven, 2 Term Rep. 772.

10 People v. Utica Ins. Co. 15 Johns. 358; State v. Ashley, 1 Ark. 553. 11 People r. Percells. 3 Gilm. 59.

12 Art.-Gen. v. Foote, 11 Wis. 14; Clark v. People, 15 IПll. 213; People . Thacher, 55 N. Y. 525; 14 Am. R. 312; Larke v. Crawford, 28 Mich. 88; Flynn v. Abbott, 16 Cal. 358; People v. Pease, 27 N. Y. 63.

13 State v. Tudor, 5 Day, 330; State v. Harris, 3 Ark. 572; State v. Gleasou, 12 Fla. 190; Rex v. Jones, 2 Strange, 1161.

14 People v. Thompson, 16 Wend. 655.

15 State v. McDaniel, 22 Ohio St. 354; People v. Jones, 18 Wend. 601. 16 Kane v. People, 4 Neb. 509.

17 People v. Northern R. R. Co. 53 Barb. 98; 42 N. Y. 217.

18 People v. Bristol etc. Turnp. Co. 23 Wend. 222.

19 People v. Hillsdale etc. Turnp. Co. 23 Wend. 254.

20 Thompson v. People, 23 Wend. 537.

21 People v. Thacher, 55 N. Y. 525; 14 Am. R. 312.

§ 167. Judgment in quo warranto proceedings.— When the proofs in an information in the nature of a quo warranto show that individuals or a corporation are guilty, either of usurping or intruding into any office or franchise, or of unlawfully holding, a judgment of ouster is properly rendered; 1 but when the proceeding is against a corporation, and a cause of forfeiture is duly proved, judgment of ouster and of dissolution shall be rendered,2 which is equivalent to judgment of seizure at common law. And the court has no discretion to refuse judgment of ouster in such case, on the ground that public or private interests will be better subserved by pressing the existence of the corporation. But the judgment must be confined to the seizure of the franchises,5 and if it extend to the seizure of the property of the corporation, that part of the judgment is erroneous. In quo warranto the

court may give or withhold judgment, as justice may require;7 and it will decline to enter judgment, if the facts upon which the relator's right depends are obscurely stated. At common law the judgment, if for the respondent, is, that he be allowed his office or franchise.9 On default of the defendant, though the court may give judg

ment of ouster against him, it cannot determine the right of the relator to the office. 10 Neither party to an information in the nature of a quo warranto could recover costs at common law; 11 but statutes relative to costs have, in many instances, changed this rule. 12

1 People v. Hudson Bank, 6 Cowen, 217; State v. Ashley, 1 Ark. 304; Rex r. Hearle, 1 Strange, 627; Rex v. City of London. cited i 12 Term Rep. 522; Smith v. State, 21 Ark. 294; People v. Saratoga etc. R. R. Co. 15 Wend. 113; State v. Central Ohio etc. Assoc. 29 Ohio Št. 399.

2 People v. Saratoga etc. R. R. Co. 15 Wend. 113. And see People v. Ravenswood etc. Bridge Co. 20 Barb. 518.

3 See Rex v. Hertford, 1 Ld. Raym. 426; State v. Ashley, 1 Ark. 304; and see Rex v. Amery, 2 Term Rep. 567; Commonw. v. Union Ins. Co. 4 State v. Penn'a etc. Canal Co. 23 Ohio St. 121.

5 Nevitt v. Bank of Port Gibson, 6 Smedes & M. 568; State v. Bank, 1 Spear, 449.

6 State Bank v. State, 1 Blackf. 278.

7 People v. Phillips, 1 Denio, 388.

8 People v. Phillips, 1 Denio, 388.

9 3 Bl. Com. 263.

10 People v. Connor, 13 Mich. 238; and see State v. Taylor, 15 Ohio St. 137. But compare Att.-Gen. v. Barstow, 4 Wis. 567.

11 Commonw. v. Woelper, 3 Serg. & R. 52.

12 See Rex v. McKay, 5 Barn. & C. 641; Queen v. Blizard, Law R. 2 Q. B. 55; State v. Caliawba, 30 Ala. 66; People v. Clute, 53 N. Y.576; Peo ple v. Ballou, 12 Wend. 277.

See

CHAPTER XIII.

EXECUTIONS.

§ 168. Execution at common law.

§ 169. Exemption of corporate franchise from execution.

What property and interests liable to execution.
Stock not liable to levy on execution.

§ 170.

§ 171.

§ 168. Execution at common law.-It is an execution that gives effect to the judgment; 1 and at common law, all the property and pecuniary interests of the defendant are subject to levy and sale upon execution, in satisfaction of the judgment.2 The right of the defendant to claim exemption for any portion of his property from execution, is the exception to the general rule, founded on statute. And the property of a corporation may be taken on execution and sold, for the payment of its debts, as in the case of an individual. After judgment duly recovered against a company, the remedy of the creditors to enforce payment is by execution, and not by mandamus; though it is well-settled that, in case of judgment against a tuunicipal corporation, when there is no property subject to execution sufficient to satisfy the judgment, mandamus will lie to compel the levy and collection of the necessary tax for that purpose.

1 See James v. Plank R. Co. 8 Mich. 91; Handy v. Dobbin, 12 Johns. 220; Canal Co. v. Bouham, 9 Watts & S. 27.

2 Handy v. Dobbin, 12 Johns. 220; Penhallow v. Dwight, 7 Mass. 34; Hamill v. Gillespie, 48 N. Y. 556.

3 Twinam v. Swart, 4 Lans. 263.

4 See Pierce v. Partridge, 3 Met. 44; Maryland v. Bank of Mary. land, 6 Gill, & J. 219; Boyd v. Chesapeake, 17 Md. 195; Slee v. Bloom, 19 Johus. 456.

5 Reg. v. Victoria Park Co. 1 Ad. & E. N. S. 288. Compare State v. Clay Co. 46 Mo. 231; People v. Clark Co. 50 Ill. 213; Buck v. Lockport, 6 Lans. 251.

6 See $ 156 ante; State v. Beloit, 20 Wis. 74; Galena r. Amy, 5 Wall. 705; Olney v. Harvey, 50 Ill. 453; Frank v. San Francisco, 21 Cal. 668.

§ 169. Exemption of corporate franchise from execution.-At common law, and in the absence of any special statutory provisions on the subject, the franchise of a corporation is not subject to execution, or to sale and transfer, even in payment of the corporate debts.1 And it is held, that the property of corporations which is essential to their active operations, ought not to be subject to seizure for their debts: 2 but that creditors should proceed against them by sequestering their earnings, permitting them to continue their undertakings for the public convenience. And where a statute provides for the sale of the corporate franchise on execution, its provisions must be strictly pursued, or no title will pass by the sale. If the officer fail to give the notice required by statute, the sale will be void. And a sale which is illegal, because of non-compliance with the provisions of the statute, will not be rendered valid by acquiescence therein on the part of stockholders.6

1 Thomas v. Armstrong, 6 Cal. 280; Wood v. Turnpike Co. 24 id. 474; Randolph v. Larned. 27 N. J. Eq. 557; Stewart v. Jones, 40 Mo. 140; Youngman v. Railroad Co. 65 Pa. St. 278. The franchise being an incorporeal hereditament, cannot, upon the settled principles of the common law, be seized on execution: Gue v. Canal Co. 24 How. 263; and see Arthur v. Commercial etc. Bank, 9 Sinedes & M. 394.

2 See Fosterr. Fowler, 60 Pa. St. 27; Wood v. Turnpike Co. 24 Cal. 478; Macon etc. Railw. Co. v. Parker, 9 Ga. 393.

3 Foster v. Fowler, CO Pa. St. 27.

4 Gue v. Canal Co. 24 How. 257; Standford Bank v. Ferris, 17 Conn. 259. Compare Randolph e. Larned, 27 N. J. Eq. 557.

5 Howe v. Starkweather, 17 Mass. 240; and see Hammatt v. Wy. man, 9 Mass. 138; State Bank v. Tutt, 44 Mo. 367.

6 James v. Plank R. Co. 8 Mich. 91; and compare Oakland Railw. Co. v. Keenan, 56 Pa. St. 198.

§ 170. What property and interests liable to execution. The estate and interest of a corporation in real property, although it may be but an easement,1 is subject to levy and sale on execution, as property lis