in his affidavit in mitigation, to allege the truth of the libel; he can do no more than allege that he did not originate it, but received his information from some other quarter, and show how he received his information, and that he acted on a belief of the truth of it. (Rex v. Burdett, 4 B. & Ald. 319.)

If the course taken on the information being filed, be to plead not guilty, the agent will do so; he will then receive notice of trial, of which he will inform the country attorney for the defendant, who must then prepare for trial in the usual way. If the defendant on the trial be convicted, it then becomes necessary to prepare the affidavits in mitigation, and instruct counsel to appear on the defendant being called before the Court for judgment in a subsequent term, unless indeed the defendant would rather choose that the judge at nisi prius should pass sentence at once; but it is in the discretion of the judge whether he will take that course or not.

It has already been mentioned, that if the prosecutor countermand the notice of trial after the proper time, the defendant will be entitled to move for costs of the day; and that if the prosecutor do not try within a year after issue joined, the Court may, on the defendant's acquittal, award him costs. But it should be stated here, that the Judge who tries the case has power to deprive the defendant of these latter costs, by certifying in open Court on the trial, that there was a reasonable ground for instituting the prosecution. If he do not in Court give this certificate, the defendant is entitled to have the costs awarded to him as a matter of right; but as the only means he has to recover them is by resorting to the prosecutor's recognizance, and as that is only in 207., he can never recover beyond that sum, whatever be the real amount of his costs; and he cannot resort to the recognizance until three months after his costs have been taxed.

It only remains to be stated, that where a defend

ant in a criminal information has been found guilty by the jury, the Court will, if there be sufficient grounds, grant a new trial, which should be moved for within the first four days of the term next after the trial; but if the defendant be found not guilty, a new trial will not be granted.

Of the Writ of Quo Warranto-Its disuse-Information in the Nature of Quo Warranto-For what Offices-Application for Leave to file-Of the Relator-Affidavits to ground Motion -Proceedings to make Rule Nisi absolute-InformationRecognizance-How to enforce Defendant's AppearanceOf the Pleadings-The Trial-Judgment-Costs-Effect of vacating the Office pending the Proceedings.

THE writ of quo warranto was formerly used where any person or corporation had usurped any franchise or liberty against the king without good title, and was brought against the usurpers to make them show by what right or title they held or claimed such franchise or liberty; but on account of some inconveniences attending the proceeding by this writ, the use of it has been long discontinued, and the present proceeding by information, in the nature of a writ of quo warranto, has supplied its place. This information is, in principle, 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 seize it for the crown; but it has been long applied to the mere purpose of trying the civil right, seizing the franchise, or ousting the wrongful possessor.

There are various offices not corporate, for instance, Steward of a Court Leet, Constable, &c. the right to which may be tried by information in the nature of a writ of quo warranto; all of which,

however, imply the exercise of some authority derived, or supposed to be derived, mediately or immediately, from the crown; but the chief use made of this kind of information at the present day, is to try the right of persons holding corporate offices so to hold them, and to oust them from those offices where they hold them without legal title; and to these the following observations will be applied.

Informations in the nature of quo warranto may be filed ex officio by the Attorney-general, but this course is seldom or never adopted in practice, they are always promoted by some private prosecutor, who is called the relator, and before the information can be filed, an application must be made to the Court of Queen's Bench for leave to do so; this application is made upon affidavits showing the exercise of the office by the person against whom the information is intended to be filed, and also stating the necessary facts to show that he has not a good title to the office; the affidavits may be made by the relator or any other persons who are cognizant of the facts, but, at all events, the relator must always himself make an affidavit showing that he has an interest in the matter, for it is not competent to a mere stranger to apply for leave to exhibit an information of this nature; in ordinary cases the relator is usually a burgess of the borough within which the defendant's office is exercised, but it seems that any inhabitant of the borough over whom the corporation, or the defendant, by virtue of his office, would exercise any authority, such as making rates, or the like, would be a good relator; it is also important to be borne in mind, that no person who has in any way recognized or concurred in the election of the defendant (if the objection be to his election) can be a good relator, for if it appear that he did, the Court will not grant leave to file the information; as, for instance, if the objection be that the election took place on a wrong day, or at an illegal time, no person who has voted at the election will be allowed to become

relator to impeach the title of the party elected. Another observation to be made is, that a party cannot be a relator whose own title to an office which he claims or exercises is open to the same objection which he is making to the defendant's; for instance, a burgess of a borough who had on any occasion exercised his franchise as such burgess would not be a good relator in an information against a corporator (a councillor, for example), if the objection were that there was no good burgess roll, and consequently that those who elected the councillor were not legally burgesses, for if so he, the relator, is not a burgess, as he has assumed to be, but if, though he be on the burgess roll, he have never recognised the legality of it by acting in any way as a burgess, he would probably be a good relator in his character of a rated inhabitant. The affidavit of the relator, if he be a burgess, should state the fact of his being a burgess and on the burgess roll; it should also state that he is a rated inhabitant of the borough; and it may further (though not absolutely necessary) state such facts as may show that he has done no act to disqualify himself from being relator; for instance, that he did not vote at the election, if it be a question as to the validity of the election; it is impossible, however, to anticipate the various cases that may arise, and it will be sufficient to say generally, that the relator's affidavit should show that he has an interest in the matter, or is affected by the exercise of the office (a). The affidavits must be entitled simply "In the Queen's Bench," and are subject to the same rules as to addition of deponent, erasures, jurat, and other practical matters, as other affidavits in that Court. When the affidavits have been sworn, they must be sent to the agent in London in Term time, and he will instruct counsel to make the motion

(a) See a form of a relator's affidavit in Appendix, section 37. This form is taken from an affidavit actually used, and is merely given by way of example.