though these may upon legal objections be afterwards found defective. Therefore one admitted under color of having been elected, is not even an officer de facto, but a mere usurper, whose acts are an absolute nullity, and whose office is merely void, so that it is unnecessary to oust him in quo warranto. But if one so getting into office have for a long while held undisturbed possession, the length of time will give it sanction so far as to render his acts voidable only, and not absolutely void; and if that possession be continued for six years, he will be within the protection of the statute of 32 Geo. III. 11. HOW INVESTIGATED. Warranto. 728. After one is in the actual possession of an By Quo office under the semblance of a legal election or appointment and admission, his title may be investigated by proceedings in quo warranto, the form of which will be considered in a distinct chapter. whom. 729. The title of the head officer may be put in Against issue, either in proceedings in quo warranto against himself, or on similar proceedings against a person elected or admitted at an assembly where he presided, or against one who was admitted by him. But the titles of other officers and corporators can only be investigated on such proceedings against themselves individually, although after ouster of the electors on whose (729) V. tit. 97. and Quo Warranto, Evidence. R. v. Mein, 3 T. R. 598. R. v. York, 5 T. R. 73. R. v. Smith, 5 M. S. 279. R. v. Hughes, 4 B. C. Who may defend in officer. votes a defendant's election depends, the judgment against them is evidence to impeach his title. 730. This right which the prosecutor has to investistead of the gate the title of the officer under whom the defendant was elected, gives all those whose titles depend upon the legality of his office, an interest in defending it. For this reason, if an information in the nature of quo warranto be prosecuted against A. and he allow judgment by default to be entered against him, the Court will, on motion on behalf of persons so interested, set it aside, and, on their indemnifying the defendant against the costs of the proceeding, allow them to defend the prosecution in his name, although it appear that the default was merely voluntary and not collusive. For otherwise either by the defendant's fear of incurring the expence of the proceedings or by his collusion with the prosecutor, the titles of corporators having the best right to their franchise might be defeated, or put in a critical situation on account of the difficulty they might afterwards have in proving that the judgment was collusive. Protection by the Court. III. THE CONFIRMATION OF TITLE. 731. Although the original title of a corporator may be defective, after he has continued a certain time in the undisturbed enjoyment of his office, he is protected in some measure by the equitable discretion of the Court, and in other instances by several statutes. 732. The Court uses that discretion which the law has reposed in them, as to granting permission to file (730) R. v. Dawes, 4 Bur. 2279. R. v. Hebden, Andr. 392. an information in the nature of quo warranto, by uniformly refusing it when the applicant comes to defeat a title which he has concurred in conferring, as by joining in the election of the person against whom he now applies, or even if he did not originally concur in the election, but has subsequently acquiesced in the corporate acts of such officer de facto; and by as uniformly refusing it to a stranger who intermeddles unnecessarily with the affairs of the body politic. On this subject more will be said in treating of the information in the nature of quo warranto. 13 Car. II. 733. The statute of Charles required among other Protection against things that no person should hold certain offices in a Corporation, unless he should have received the sacrament according to the rites of the Established Church within the year preceding his election; and in default of this qualification, rendered the election void. The inconveniences arising from this induced the legislature to supply a remedy by the statute of George, and has since caused the annual enactment of a statute called the Indemnity Act. officers. 734. "No person or persons who shall be placed, Corporate elected, or chosen in or to any of the offices aforesaid, shall be removed by the Corporation or otherwise prosecuted for or by reason of having omitted to take the sacrament of the Lord's supper as aforesaid (v. tit. 506.) nor shall any incapacity, disability, forfeiture or penalty be incurred by reason of the same, unless such person be so removed, or such prosecution be commenced within six months after such person's being placed or elected into his respective office as aforesaid, (734) 5 Geo. I. c. 6. s. 3. Not protected be sion. and that in case of a prosecution, the same be carried on without wilful delay." 735. This statute does not extend its protection to fore admis- those who are elected, but have not been admitted. Until admission the title is not consummate, and until then no prosecution can be commenced, either for the forfeiture, or on an information in the nature of quo warranto to oust him from the office. On this account if one have been elected, without having qualified under the statute of Charles, he is not entitled to a madamus to be admitted, even after the expiration of six months from the day of his election. Extent of protection for first six months. 736. If an officer so disqualified have been elected and admitted; for the first six months after admission he is liable to the forfeiture incurred by his neglect and to be ousted by judgment on an information in the nature of quo warranto, on proceedings commenced within that time. But as the office is only voidable, and not void as it formerly was, he may during that period obtain a mandamus for the insignia and other things belonging to his office. His acts of a corporate character done during this interval are conditionally legal or voidable; that is, if the six months elapse without any effectual prosecution for the purpose of avoiding the office, they are legalized by the event and of the same validity as though he had been entitled to hold the office from the beginning with an unimpeachable title. But if such a prosecution be commenced within that time, and effectually carried on, and the usurper ousted, all the acts which he has executed, or in which (735) Tufton v. Nevinson, 2 Ld. Ray. 1354. R. v. Monday, Cowp. 539. (736) Crawford v. Powell, 2 Bur. 1016. R. v. Monday, Cowp. 539. he has joined are voidable, for he is now ascertained to have been merely an officer de facto. months. 737. After the expiration of six months from the day After six of election, no prosecution having been effectively commenced, the effect of this statute is not only to legalize the antecedent acts of the officer, but to invest him with an indefeasible title (as far as receiving the sacrament was necessary) during all the rest of the time for which his office was designed to continue. reckoned. 738. The calculation of six months is thus: if the Time, how rule nisi for a quo warranto have been granted before the expiration of that time, in the case of Brown it was considered doubtful whether the prosecution were not sufficiently commenced, although the information was not filed until after the six months had elapsed, the rule nisi having been obtained within that time. This was immaterial to the decision of the case, as the defendants had a subsequent opportunity of relying upon the fact; and from two other cases, the one more ancient, the other subsequent, it may be concluded that the officer is protected by the statute unless the rule have been made absolute within six months; for in the case of Monday it was observed, that this statute affords a protection similar to that which the Court had formerly yielded by limiting the time after which they refused an information, which was calculated from the time of election to that of making the rule absolute; and in the case of Stokes it was said that the limitation of the statute of 32 Geo. III. was in accordance with the rule previously established by the Court. (737) Crawford v. Powell, 2 Bur. 1016. R. v. Monday, Cowp. 539. (738) R. v. Brown in R. v. Smith, 3 T. R. 574. n. R. v. Monday, Cowp. 539. R. v. Stokes, 2 M. S. 72. |