QUO WARRANT° (Lat. by what au thority). In Practice. The name of a writ (and also of the whole pleading) by which the government commences an action to re cover an office or franchise from the person or corporation in possession of it.
The writ commands the sheriff to summon the defendant to appear before the court to whioh it is returnable, to show (quo warranto) by what au thority he claims the office or franchiso. It was a writ of right, a civil remedy to try the mere right to the franchise or office, where the person in pos session never had a right to it or has forfeited it by neglect or abuse. 3 Sbarswood, Blackst. Comm. 262, 263.
The action of quo warrant° was prescribed by the Statute of Gloster, 6 Edw. 1.. and is a limitation npon the royal prerogative. Before this statute, the king. by virtue of his prerogative, sent com missions over the kingdom to inquire into the right to all franchises, quo jure et quore nontine illi red nent, etc. ; and, as they were grants from the crown, if those in possession of them could not show a barter, the fraimbises were seized into the king's hands without any judicial proceeding. Like all other original civil writs, the writ of quo warrant° issued out of chancery, and was returnable alterna tively before the king's bench or justices in eyre. Coke, 2d Inst. 277-283, 494-499 ; 2 Term, 549. See 4 Term, 381 ; 2 Strange, 819, 1196.
The writ of quo warrant° has given plaee to an information in the nature of quo warrant°. This, though in form, a criminal, is in eubetance a civil, proceeding, to try the mere right to the franchise or office. 3 Sharawood, Blackst. Comm. 263; 1 Serg. & R. Penn. 382; Angell & A. Corp. 469; 2 Rent, Comm. 312; 3 Term, 199 ; 23 Wend. N. Y. 537, 591-594.
2. Pleadings in quo warrant° are anomalous. In ordinary legal proceedings, the plaintiff', whether be be the state or a person, is hound to show a case against the defendant. But it; an information of quo warrant°, as well as in the writ for which it is substituted, the order is reversed. The state is not bound to
show any thing, but the defendant is bound to show that he has a right to the franchise or office in question ; and if he fail to show authority, judgment must be given against him. 4 Burr. 2146, 2147 ; Angell & A. Corp. 636. To the writ of quo warrant° the de fendant simply pleaded his charter, which was a full answer to the writ ; just as before the statute of Edward I. the production of the charter to the king's commissioners was full authority for the possession of the fran chise or office. But to an information of quo warrant° the plea of the defendant consists of his charter, with an absque hoc denying that he usurped the franchise, and concludes with a verification. The plea is in form a special traverse, but in substance it is not such. The information was originally a criminal proceeding, to punish the usurpa tion of the franchise by a fine, as well as to seize the franchise • therefore the informa. tion charged usurpation, and the defendant was compelled to deny the usurpation, as Null as to show his charter, which he did in the form of an absque hoc to his plea. But when the proceeding ceased to be criminal, and, like the writ of quo warrant°, was applied to the mere purpose of trying the civil right to the franchise, the absgue hoc denying the usurpation became irnmaterial, though it is still retained in the forms. 5 Jacob, Law Diet. 374 ; 4 Cow. N. Y. 106, note. In Coke's Entries, 351, there is a plea to an informa tion of quo warrant° without the absque hoc. The absque hoe, being immaterial, should not be answered by the replication, as it must always be in a special traverse ; but the charter, the first part of the plea, though occupying the place of an inducement, rnust be denied by the replication, its existence and character being the sole question in con troversy upon which the legality of the acts of the corporation turns. Gilbert, Ev. 6-8, 145-160 ; 10 Mod. 111, 112, 296-300.