
    
      David Thompson adm United States
    
   David Thompson adsm.\ United States j

Supreme Court Decr Term 1832. Quo Warranto

Motion by defendant to set aside proceedings for irregularity.

There is no Legislative enactment on the subject of Quo Warranto in this Territory; but simply the Power given to this Court to grant it we must therefore have recourse to the Common Law for the writ, its incidents and the practice governing it Laws 118. 119.

1 In form this is a Criminal proceeding; and at common law leave is not given as a matter of course to file an information, but rests on the sound discretion of the Court; and must be upon a rule had on the party complained of to shew cause against its being plead 2. T R. 484 4 Cowen R 102. Bac Ab. Infor3 D. 2 B&A. 339—1 T. R. 2. 4 Burr 1964. 2022. 2 Johns R 184- 8 Mod 132. 5 Jacobs Dy 379. Chitty C Law 699—

2. It is competant to the defendant to urge many reasons on the service of the rule to shew cause against the granting of rule and if the defendant should fail to defend or plead, third parties whose rights will be affected by the proceedings will be allowed to come in and do so and in pleading every indulgence is shewn to the defendant. 4 Cowen 103. 4. 5. 6. 1 T.R. 3 & note 1 Chitty R 700 1 Binney R. 77. Buller N.P. 210 4 Cowen 112 Bac. Ab Informas. D. 3 T.R. 310 4 Cowen 112. 119.

3. It is irregular to proceed against the defendant by rule before he is brought into Court either by Venire facias and distringas or subpeona and attachment for as yet this defendant had no day in Court and never was served with any legal process. 4 Cowen 100-109. no. 111-112. Kyd on Corpns 438 5 Binney 353. Com Dig Quo Warranto C. (2). 10 Mass R 290. 291 1 Ld Rayd 426  