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sideration of the Court here in the premises, and that due process of law (that is a writ to the sheriff upon which defendant may appear and defend (a)) may be awarded against the defendant in his behalf, to make him answer to our said Lord the King, touching the premises aforesaid.”

The King may lay his venue in what county he pleases; and may try a question as to lands lying in any county, in the Court of Exchequer (b).

At common law, the Crown has the prerogative right on an information of intrusion, of putting the defendant on shewing his title specially, and the defendant could not rely merely on his possession (c), which in ordinary cases is sufficient title for a defendant (f). If not guilty (e), or non intrusit (d) generally, be pleaded, (and the defendant cannot plead double(g), ) nothing but the mere fact of an intrusion having been committed is put in issue, and the defendant in possession would be immediately evicted from it; for a title for the King appears upon the information, if no title appear upon record for the defendant (h). This has, however, been remedied by the statute 21 Jac. 1. c. 14. in certain cases. By that statute, whensoever the King, and such from or under whom the King claimeth, and all others claiming under the same title under which the King claimeth, shall have been out of possession by the space of twenty years, or shall not have taken the profits of any lands, tenements, or hereditaments, within the space of twenty years, before any information of intrusion brought, or to be brought, to recover the same, that in every such case the defendant may plead the general issue, if he so think fit, and shall not be pressed to plead specially; and that in such cases the defendant shall retain the possession he had at the time of such information, exhibited, until the title be tried, found, or adjudged for the King.

(a) In 6 Com. Dig. 65, tit. Prerog. D. 73, it is laid down that the process upon an information shall be a venire distringas, afterwards a writ out of Chancery directed to the treasurer and barons. 4 Inst. 110.

(b) 1 Ventr. 17. Sav. 10. Com. Dig. Prerog. D. 85. 2 Price, 113.

(c) Dyer, 238, b. 4 Inst. 166. How this is on a traverse of office, post, ch. 13. s. 3. div. 3.

(d) See 1 East, 244.
(e) Sav. 66.
(f) Sav. 4.

(g) Parker, R. 1, 16,
(h) 4 Inst. 116.

" And

"And be it further enacted, That where an information of intrusion may fitly and aptly be brought on the King's behalf, that no scire facias shall be brought, whereunto the subject shall be forced to a special pleading, and be deprived of the grace intended by this Act."

It is, in general, sufficient for the defendant to shew a mere legal title to possession only; and it will suffice if he shew a right to possession concurrently with the King, as where the defendant pleaded that she had a jointure of a third, without answering to the residue (a). The defendant must, of course, plead a sufficient legal title (b); otherwise, the Attorney-General may demur: though it is said, that if instead of so doing, he take issue on a fact stated in the plea, which is found against the King, the defect cannot afterwards be taken advantage of (c).

The King may traverse all the different facts stated in the defendant's plea (d); and if the plea allege a title, which avoids the possession in the King supposed by the information, the King need not, at least where he is entitled by matter of record, maintain the information, but may traverse the title alleged by the plea (e).

The Crown has the privilege of waiving his count, and declaring de novo, even after plea or demurrer; but only, it seems, during the Term in which the original declaration was made (ƒ), though the King may amend at any time, paying costs (g).

The judgment for the King in an information for intrusion is, that the defendant be amoved from the possession; and for damages, in case damages be found, for any particular trespasses committed by the defendant, as cutting trees, &c. (h).

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After judgment in an information for intrusion, execution shall be sometimes by injunction, or it may be by amoveas manum; and, thereupon every party to the information, or claiming under him, shall be removed from the possession. But a stranger to the information shall not be debarred of his entry, for no judgment of seisin is given, nor does an habere facias seisinam go (a).

2. The Information of debt is in effect and substance the King's action of debt, and is usually brought in the case of forfeitures to the Crown, upon the breach of a penal statute, enacted for the support of the revenue (b). For monies due to the Crown on contract, process of extent is the usual remedy.

Where the King is entitled to any part of a penalty, for which a qui tam action is brought, the defendant cannot obtain leave to compound till the consent of the law officers of the Crown be given, in whatever stage of the cause the application to compound is made (c). It appears, that by a standing privy seal, the Commissioners of the Treasury, High Treasurer, Chancellor, Under-Treasurer, Chief Baron, Barons of the Coif, and Attorney-General, were respectively empowered to give licence to compound (d). And the Court, in the exercise of their discretion to grant leave to compound, will refuse the indulgences in cases of collusive attempts to defraud the Crown (e). Where leave is given to compound a penal action, the moiety of the Crown is to be paid into the hands of the Master (f), and this is usually done before the rule is drawn up (g).

3. The Information in rem is, where any goods are supposed to become the property of the Crown, as derelict, and no man appears to claim them, or to dispute the title of the King; or where goods are forfeited for non-payment of customs, &c. (h).

possession; for the King is supposed in possession." And see 6 Com. Dig. 67. tit. Prerogative, D. (D.) 77.

(a) Sav. 35. Hardr. 450, 462. (b) 3 Bla. Com. 261.

(c) 1 Taunt. 103. 2 Ibid. 213. 5 Ibid. 268.

(d) Gilb. Excheq. 137. See further

on this subject, Ibid.

(e) 2 Bla. R. 1157.
(f) 4 Burr. 1929.

(g) 1 Manning, P. E. 229. When Crown shall have half the costs the plaintiff agreed to take. 2 Taunt. 215. (h) 3 Bla. Com. 262. Gilb. Excheq. 180.

The

The 13th chapter of Chief Baron Gilbert's "Treatise on the Court of Exchequer," contains so able and so ample an explanation of this subject, that no apology need be offered for referring the reader to it for information (a).

SECT. V.

Quo Warranto.

THE writ of quo warranto is an antient and high prerogative remedy, in the nature of a writ of right for the King, against him who usurps or claims (b) any franchises or liberties (c), to say by what authority he claims them (d). It is also sustainable where any new jurisdiction or a public (e) trust is executed without authority; though it is no usurpation on a franchise of the Crown (ƒ). Nor is it material that the franchise is of such a nature that it cannot be seized into the King's hands or held by him, though judgment be given for his Majesty, because the defendant may

(a) And see Parker's Rep. 57, 69, 196, 7. The Court of Admiralty, like the Exchequer, proceeds in rem: and the Crown may be bound by a judicial sale therein. See 3 Price, 37.

(b) There must be an user as well as a claim of a franchise. 5 T. R. 85. 4 East, 537.

(c) As waifs and estrays. Co. Entr. 528, 541, 544. Goods and chattels of felons, and deodands, Ibid. 529, 549. Fines, amerciaments, and issues, Ibid. 551, b. 561, a. A park, warren, &c. Ibid. 561. Wreck, 2 Rol. Ab. 20.5, 1. 35. For taking lastage or ballotage of ships, 1 Sid. 86. So it lies for franIchises, which cannot be seized into the King's hands; for the party may be ousted of them; as for a Court Baron, Quo Warranto. 14 Treby's argument. Yel. 190. A Court Leet, or Borough Court. Co. Entr. 527, b. 544. A fair, market, toll, &c. Co. Entr. 527, b. 544, 561, a. Information in the nature

6

of quo warranto lies against any one claiming an exclusive ferry over a public river, but not for taking money of passengers. Stra. 1161. So it lies for claiming to be a corporation. Co. Entr. 537,b. To choose bailiffs or other officers, Ibid. 527, b. 537, b. Coroner, constable, clerk of a market, justice, &c. Ibid. 528, a. 537, b. 551, b. For exercising the office of steward of a Court Leet, but not of a Court Baron. Stra. 621. It lies for the office of constable, Ibid. 1213. So it lies upon a claim of exemptions; as to be exempt from the government of the mayor, justices, &c. Co. Entr. 528, a. Proceedings against the City of London, in the time of Charles 2. See 2 Burnett's Hist. 925. ed. 1725. 2 Selw. N. P. tit. Quo War. 2 W. and M. sess. 1. c. 8.

(d) 2 Inst. 282. 9 Co. 28, a. Yelv. 191. Com. Dig. tit. 2uo War. A. (e) See 6 Com. Dig. tit. Quo War. B. (ƒ) Stra. 299, 836. Ld. Raym. 1559. still

still be ousted (a). It also lies in the case of a forfeiture of an office by abuser, &c. (b).

In case of judgment for the defendant, he shall (c) have an allowance of his franchise; but in case of judgment for the King, for that the party is entitled to no such franchise, or hath disused or abused it, the franchise is either seized into the King's hands, to be granted out again to whomsoever he shall please; or if it be not such a franchise as may subsist in the hands of the Crown, there is merely judgment of ouster, to turn out the party who usurped it (d). There is also judgment of capiatur pro fine, though the fine is nominal.

This writ which must be brought before the King's Justices at Westminster (e), has now fallen into disuse, principally on account of the length and complicated nature of the process (f), and the circumstance of the judgment on the writ being final and conclusive, even against the Crown (g). In its place has been substituted the information in the nature of a writ of quo warranto, which is filed in the King's Bench by the attorneygeneral (h); and lies also in the Exchequer (i); and wherein the proceedings are more speedy and less conclusive (). The Court, however, will not extend this remedy beyond the limits prescribed to the old writ; and as that could only be prosecuted for an usurpation on the rights or prerogatives of the Crown, so an information in the nature of quo warranto, can only be granted in such cases (l); and upon this principle, the Court refused to grant an information to try the validity of an election to the office of church-warden. The

(a) Ante, 335, note (i).

(b) 2 Inst. 486. 3 Bla. Com. 262. Ibid. 263.

(c) 3 Bla. Com. 263.

(d) Cro. Jac. 259. 1 Show. 280. Co, Entr. 530, 539, a. Rast. Entr. 540, b. 3 Bla. Com. 263.

(e) 3 Bla. Com. 263. Com. Dig. Quo Warranto, A.

(f) See Com. Dig. tit. Quo Warranto, C. 2. The proper course in the Exchequer seems to be, to issue a writ to the sheriff, directing him generally to inquire into usurpations of franchises; upon which the sheriff takes an inqui

quo warranto

sition, finding the particular usurpation
intended to be drawn in question. The
defendant traverses or demurs to the in-
quisition, and proceeds as in other
cases. 2 Manning, Fr. 510. Defen-
dant cannot plead not guilty, or non
usurpavit, but must justify or disclaim,
12 Mod. R. 225. 10 Ibid. 296.
(g) 1 Sid. 86. 2 Show. 47. 12 Mod.
225.
1 Bla. Rep.

(h) See 3 Burr. 1812.

579.

(i) 2 Manning's P. Exch. 509, 10. (k) 3 Bla, Com. 263.

(2) 4 T. R. 381. Stra. 1196. information

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