Blackstone, as follows: "A writ of quo warranto is in the nature of a writ of right, for the king, against him who claims or usurps any office, franchise or liberty, to inquire by what authority he supports his claim, in order to determine the right. It lies, also, in case of non-user or long neglect of a franchise, of misuser or abuse of it, being a writ commanding the defendant to show by what warrant he exercises such a franchise, having never had any ered by judgment; and the extending of the writ to land must have increased the confusion, this being so easily divisible from the incidental prescriptive franchise. Judgments must, therefore, often have been given in the same cause, for the king in respect to the latter, leaving the former still in the hands of the subject. The instance put in argument, that, for the abuse of a tenant by the commission of waste, the landlord shall recover only the place wasted, finds an answer in the divisible nature of the subject. The difficulty was probably increased by the crown many times suing merely to cut off an extravagant claim made in respect to a single franchise, being willing to leave the acknowledged franchise untouched, even in cases where total forfeiture might have been claimed. The question will be found to have been a great deal examined in the case of the city of London by Finch, solicitor-general, 3 Harg. St. Tr. 549, 550, for the crown; by Sir George Treby, recorder of the city. contra, Id. 565, to 567, and by Sir Robert Sawyer, Id. 579. The latter said that, to forfeit the toll illegally taken is idle; it is no punishment, for they never had any right to it. They can only be punished by taking away their acknowledged rights. Vide, also, Comyn's Dig. Franch. (G. 3.) Some of the distinctions depending on the divisible character of the subject are noticed in Viner's Abr. Franch. (E.) Other pertinent rules are then laid down: 'A man has franchises and uses more than he ought, this is a forfeiture; but if 'he uses less, this is finable.' Pl. 1. He who has fair to hold two days, and holds it three days, forfeits the whole fair. So where a man has market to hold the Saturday, and he holds it another day.' Pl. 3, marg. and Pl. 3. If a lord refuses to do a thing according to his franchise, or does contrary to his franchise, or misuses it. by himself, his bailiff or deputy, or non-uses the franchise, the franchise shall be reseized. Pl. 7. He puts several abuses in respect to prisoners in jails held within a franchise or liberty, viz.: groundless detention, or repeated escapes, as a reason of forfeiting the whole liberty. Pl. 4, 10. So oppression arising from gross ignorance of the judge as to the nature of the crime, or his usurpation by repeatedly issuing a capias where he has jurisdiction of summons only, or for inflicting illegal punishment. Pl. 13, 15, 16. So of non-feasance,as if the lord having liberty of jurisdiction, refuses to attend the justices of assize in person or by deputy; and so the not having able grant of it, or having forfeited it by neglect or abuse. This was originally returnable before the king's justices at Westminster, but afterwards only before the justices in Eyre, by virtue of the statutes of quo warranto; but since those justices have given place to the king's temporary commissioners of Assize, the judges in the several circuits, this branch of the statutes hath lost its effect; and writs of quo warranto must now be prosecuted and determined before the king's justices at Westminister. And in case of judgment for the defendant, he shall 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 officers, judicial and ministerial, with proper instruments of punishment, or omitting legal punishments after conviction. Pl. 8, 13. He winds up with the general remark of Lord Holt, which I before cited from 12 Mod. 271. Under the same title (A) pl. 3, he lays down what must be a very general if not an universal rule, that franchises cannot be divided if they are entire. To all the cases put he cites the authorities. In Earl of Shrewbury's Case, 9 Rep. 50, much of the doctrine as noticed in Viner, is summed up and what acts of non-feasance shall operate as a forfeiture is examined with reference to the nature of the franchise. In Baggs' Case, 11 Rep. 98, it is said of misfeasance and non-feasance, that in order to found a proceeding for forfeiture, there must be an act or such neglect as is tantamount; and an instance of the last is a game keeper, and game being killed in consequence of his negligence. There he shall lose his office. The ancient authorities when looked into on the point of divisibility, and applied to a corporation, must now all be received subject to the city of London. There the taking of an illegal toll was held sufficient to work a total forfeiture of the city charter, with its thousand franchises. Vide, a summary of that case, 2 Show. 263 to 279, marg. page and note (t), Loud. ed. 1794. The entire roll is given in 6 Harg. St. Tr. App. 15 to 39. including at the last page judgment of general and absolute seizure. The corporate abuse which is to work a forfeiture, therefore, need not be of any particular measure or extent. The writ and information were known remedies; and in the historical sketch already given, will be seen to have been sometimes pushed beyond their proper bearing against the subject. So far they should be taken with grains of allowance. Sometimes, however, they were unreasonably narrowed in the hands of weak princes, but they have been steadily recognized as in general of most salutary effect in favor of the commonwealth, and in a view to this have been sustained by the courts as important remedies, in nature of right." Cowen, J., in People v. Bristol & Rensselaerville Turnpike Co., 23 Wend. 222, 240. 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 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. The judgment on a writ of quo warranto is final and conclusive, even against the crown, which, together with the length of its process, probably occasioned that disuse into which it is now fallen, and introduced a more modern method of prosecution, by information, filed in the court of the king's bench by the attorney-general, in the nature of a writ of quo warranto; wherein the process is speedier, and the judgment not quite so decisive. This is properly a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise as to oust him, or to seize it for the crown; but hath long been applied to the mere purposes of trying the civil right, seizing the franchise or ousting the wrongful possessor; the fine being nominal only." § 218. The Subject Continued.-The following statement of the office of an information in the nature of a quo warranto and of the conditions which justify a judgment of forfeiture in quo warranto proceedings, by Mr. Justice Michell, in The State v. The Minnesota Thresher Manufacturing Company, is very clear and comprehensive: "It is proper in this connection to consider briefly the second principal question referred to at the outset, viz.: the office of an information in the nature of quo warranto, and what will amount to such a misuser of corporate franchises as to justify a judgment of forfeiture in such proceedings. And right here it is important to keep in mind certain distinctions which it seems to us counsel for relator has over 13 Blackstone's Commentaries, 262. See also State v. Real Estate Bank, 5 Ark. 595; s. C., 41 Am. Dec. 109; People v. Manhattan Co., 9 Wend. 351; Reg. v. Archdall. 3 N. & P. 696; s. c.. 8 A. & E. 281; State v. Ashley, 1 Ark. 279; Com. v. Small, 26 Pa. St. 31; Rex v. Trinity House, Sid. 86; Lindsey v. Attorney General, 33 Miss. 509; State v. Paul, 5 Stew. & P. (Ala.) 40; Com. v. Murray, 11 S. & R. 73; s. C.. 14 Am. Dec. 614; State v. Portland, etc. R. Co., 58 N. H. 113; Rex v. Williams, 1 Burr. 402. See also 9 Anne, chap. 20. looked. And, first, these special proceedings upon information must not be confounded with a civil action, under Gen. Stat. 1878, chap. 79. Although, in a general sense, the two may be termed 'concurrent remedies,' yet it is undoubtedly true that the office or function of the latter has been enlarged somewhat beyond that of a common law quo warranto information. In some jurisdictions, as formerly with us, the civil action is the only remedy. But while quo warranto having been revived in this State, we have now the two remedies, yet the office of the writ of quo warranto ought not to be extended beyond what it was at common law. The remedy by civil action is more in accordance with the ordinary mode of judicial procedure in determining property rights; and ought to be pursued except in those special or exceptional cases where the public interests seem to demand a more speedy or summary mode of procedure than by action in the district court. The common law quo warranto information, as we have it to-day, is substantially as left by the changes and modifications made by the statute of 9 Anne, chap. 20. The scope of the remedy furnished by it is to forfeit the franchises of a corporation for misuser or non-user. It is, therefore, necessary, in order to secure a judicial forfeiture of the respondent's charter to show a misuser of its franchise justifying such a forfeiture; and, as already remarked, the object being to protect the public, and not to redress private grievances, the misuser must be such as to work or threaten a substantial injury to the public, or such as to amount to a violation of the fundamental condition of the contract by which the franchise was granted, and thus defeat the purpose of the grant; and ordinarily the wrong or evil must be one remediable in no other form of judicial proceeding. Courts always proceed with great caution in declaring a forfeiture of franchise, and require the prosecutor seeking the forfeiture to bring the case clearly within the rules of law entitling him to exact so severe a penalty. It is also necessary to notice the distinction frequently overlooked between franchises and powers. The definition of a franchise,' given by Finch, adopted by Blackstone, and accepted by every authority since, is a royal privilege or branch of the king's prerogative, subsisting in the hands of a subject.' To a franchise the right possessed must be such as cannot be excused without the express permission of the sovereign power, a privilege or immunity of a public nature which cannot be legally exercised without legislative grant. It follows that the right, whether existing in a natural or artificial person, to carry on any particular business, is not necessarily or usually a franchise. The kinds of business which corporations, organized either under title 2, chap. 34, or under the Act of 1873 are authorized to carry on are powers, but not franchises, because it is a right possessed by all citizens who choose to engage in it without any legislative grant. The only franchise which such corporation possess is the general franchise to be or exist as a corporate entity. Hence, if they engage in any business not authorized by the statute, it is ultra vires, or in excess of their powers, but not a usurpation of franchise not granted nor necessarily a misuser of those granted. Acts in excess of power may undoubtedly be carried so far as to amount to a misuser of the franchise to be a corporation and a ground for its forfeiture. How far it must go to amount to this the courts have wisely never attempted to define, except in very general terms, preferring the safer course of adopting a gradual process of judicial inclusion and exclusion as the cases arise. But we think it may be safely stated as the general consensus of the authorities that, to constitute a misuser of the corporate franchise, such as to warrant its forfeiture, the ultra vires acts must be so substantial and continued as to amount to a clear violation of the condition upon which the franchise was granted, and so derange or destroy the business of the corporation that it no longer fulfills the end for which it was created. But, in case of excess of powers, it is only where some public mischief is done or threatened that the State, by the attorney-general, should interfere. If, as between the company and its stockholders, there is a wrongful applica |