
    The Commercial Bank of Rodney, use of Thomas Freeland and John Murdock vs. David M’Caa and William Coleman.
    Where a suit was instituted by a bank, and subsequently a writ of quo war-ranto was sued out against the bank, it was held, to be error to quash the writ which issued in the suit instituted by the bank, because of the pendency of the quo warranto.
    
    A motion to quash is only regular when the defect appears on the face of the proceedings.
    Whatever other effect may be accorded to the quo warranto, it could give no right to quash proceedings, upon motion, which were regularly pending at the time it was commenced.
    On appeal from the circuit court of Claiborne county; Hon. G eorge Coalter, judge.
    On the 26th day of September, 1843, the Commercial Bank of Rodney, for the use of Thomas Freeland and John Murdock, instituted suit in the circuit court of Claiborne county against David M’Caa and William Coleman. The declaration was in assumpsit and founded on a promissory note for $666. At the May term, 1845, the defendants moved to quash the writ and the service thereon, and on the hearing of the motion, they read a transcript of a record from the circuit court of Jefferson county, showing that on the 19th day of October, 1843, a writ of quo warranto was sued out against the Commercial Bank of Rodney, which was executed on the 3d day of November, 1843. No other evidence being offered, the court sustained the motion, and ordered the writ and service thereon to be quashed. Whereupon the plaintiff filed a bill of exceptions, and prayed an appeal to this court.
    
      James H. Maury, for appellants.
   Mr. Justice Clayton

delivered the opinion of the court.

This writ was instituted on 26th September, 1843. On the 19th of the following month a writ of quo warranto was sued out against the bank.

At the May term, 1845, of the circuit court of Claiborne county, upon motion of the defendants, “ the writ and service thereon ” in this cause were quashed, because of the pendency of the quo warranto.

This was erroneous. At the time this suit was commenced, there was nothing to prevent its institution. Whatever other effect may be accorded to the quo warranto, it could give no right to quash proceedings, upon motion, which were regularly pending at the time it was commenced. A motion to quash is only regular, when the defect appears upon the face of the proceedings. What has since been the fate of the quo warranto, the record does not inform us.

The judgment must be reversed, and cause remanded.  