
    Commonwealth versus Benjamin Dearborn, Joseph Otis, and Benjamin Whitwell.
    An information in nature of a quo warranta does not lie against the managers of a lottery appointed by a corporation having the grant of such lottery.
    This was an information in nature of quo warranta, filed by the Attorney and Solicitor-General in behalf of the commonwealth, alleging that the defendants, for the space of three months before the filing of the information, had used and exercised, and still did use and exercise, the office, liberty, and franchise, of managers of a lottery, granted by the legislature to the proprietors of Kennebcck Bridge; which office, &c., they are charged with having usurped upon the government of the commonwealth ; and thereupon pro cess is prayed against them, that they may be held to answer to the commonwealth, by what warrant * they claim to hold, use, exercise, and enjoy, the said office, liberty, and franchise.
    The defendants, having appeared upon summon», pleaded in bar to the information ; and in the surrejoinder, by the officers of the government, to the rejoinder of the defendants, an issue in fact was tendered as to one averment therein, and as to the remainder the said officers demurred in law.
    Before joining the demurrer, Prescott and G. Sullivan, of counsel for the defendants, objected to this mode of pleading.  They agreed that the government, by force of its prerogatives, might put several points in issue, and perhaps, also, at the same time demur to the whole of the plea or rejoinder of the defendants. But the manner of pleading attempted in the present case was such that it would be impossible to argue the demurrer; as, without the averment upon which the issue had been tendered, the rejoinder was clearly insufficient.
    They also insisted that an information of this kind did not lie m this case. The defendants were mere servants of the corporation, created by the legislature in the year 1796, by the name of “The Proprietors of Kennebeck Bridge,” and did not claim to hold or ex ercise any public office.
    
      
       6 D & E. 733, note (a).
      
    
   The Court

were of opinion that the prerogative of the government did not authorize the mode of pleading attempted, and the demurrer was withdrawn.

The issue in fact was joined by the defendants, and being tried during the term, the other point was reserved for argument, and the cause stood continued nisi for that purpose.

The counsel on both sides being present at the following Novem ber term in Essex, the question whether the information lay was argued at much length by them ; and it was afterwards determined by the Court, that the defendants, as managers of a lottery granted to a corporation, and appointed to the trust by the corpotation, were not such * officers as were liable to the process which had been instituted in this case. They were the private officers or servants of the corporation, and removable by it at pleasure, or at least for good cause. The only effect of a judgment against the defendants upon this information would be their removal from office. But such a judgment would be nugatory, for the corporation might immediately reinstate them. Those against whom such an information lies must claim to exercise some public office or authority. The defendants were accordingly discharged.  