sons because it is in disaffirmance of the corporation, and then judgment of ouster shall be given, but if it be brought for liberties claimed by a corporation it must be brought against the corporation itself."1

The rule governing the entire question of parties defendant may be comprehensibly stated as follows: When the purpose is to suppress a usurpation of corporate franchises by individuals, the information should name and proceed against the defendants as individuals, except perhaps in the case of a pretended municipal corporation; but when the purpose is to enforce a forfeiture of corporate franchises usurped by a corporation, the proceeding should be against the incorporated body by its corporate name.2

It is plainly seen upon authority and principle that a corporation cannot usurp to be a corporation. If the information allow individuals to be a corporation they do not usurp the franchise of being one, though a corporation itself as such may usurp powers and privileges. But if the corporate existence itself be denied, then the information must be against A. B. and C. for falsely

1 Rex v. Amery, 2 Tenn. Rep. 515. In People v. Flint, 64 Cal. 49, the complaint contained averments amounting to an admission that a corporation whose franchise the defendants usurped had at least a de facto existence, going so far as to set out its articles of incorporation, and yet the corporation was not made a party defendant. The court very properly said: "But the alleged corporation is not a party and has not been heard; therefore its right to transact business cannot be adjudged or determined in this proceeding."

2 State v. Cin. Gas-L. Co., 18 Ohio St. 262; State v. Taylor, 25 Ohio St. 280; State v. Coffee, 59 Mo. 59; State v. Barron, 57 N. H. 498; State v. Somerby (Minn.), 43 N. W. Rep. 689; State v. Atchison & R. Co., 24 Neb. 143; 38 N.W. Rep. 43. Held properly brought against individuals in Renwick v. Hall, 84 Ill. 162; Rex v. Carmorthen, 1 W. Bl. 187; Rex v. White, 1 N. & P. 84. The mere fact that a certificate of incorporation was obtained by fraud is not sufficient basis for a proceeding quo warranto against individual corporators where the forms of law in the organization of the corporation under a general law have been complied with and the proper certificate issued by the proper authority. Rice v. Commonwealth Bank, 126 Mass. 300. As to what constitutes "acting as a corporation so as to warrant the proceeding against individuals, see Green v. People (Ill.), 21 N. E. Rep. 605.

taking upon themselves to be a corporation. And, when the action is brought against the corporation itself for franchises usurped, no judgment can be rendered against the corporate capacity but only to seize the franchises unlawfully usurped misused or abandoned.

§ 980. A case of misjoinder.—Where the information contained two counts: one charging certain individual defendants with usurping corporate capacity and another charging the corporation, which was joined with it as a party defendant, with exercising without legal authority the franchises appertaining to a street railway company, the court very properly decided that there was a misjoinder, although no question of misjoinder was made by counsel. By suing the corporation its corporate existence was admitted, and no quality or quantity of allegation could do away with such admission.1

Where the action is had against a party for intruding into an office in a corporation, the corporation is not a proper party defendant, though its existence must be alleged in order to make it appear that there exists an office into which the party could intrude.2

981. The pleadings-Complaint.-Such actions should in most of the states be commenced and prosecuted

1 People v. Stanford, 77 Cal. 300. While the corporation in whose name the individual defendants were alleged to have done the acts complained of was retained upon the record as a party defendant, no judgment could be rendered against them, for the wrongs complained of were not done in an individual but in a corporate capacity; or, as WORKS, J., said, in delivering the opinion: "If we are right in the position taken that by suing the corporation as such its existence is admitted, this is an end of the matter, so far as this count of the complaint is concerned, for the reason that the whole force of its allegations as against the individual defendants rests upon the sole ground that no such corporation exists." See also, People v. Ravenswood, etc., T. Co., 20 Barb. 518.

2 People v. De Mill, 15 Mich. 164.

like other civil actions and are governed in respect to the pleadings by the same rules.1

While the action was considered in the nature of a penal action all the exactness characterizing complaints for penalties was required.2

A complaint for the usurpation of an office in a private corporation not created by special charter but incorporated under general law must go further than alleging in general terms the existence of the corporation. That would be only a conclusion of law, and the court should have the privilege of determining from the facts whether or not there is a corporation.3

The corporate existence in such case is a jurisdictional question, and as it results from acts in pais the mere allegation without reciting the acts cannot apprise the court of the ultimate fact unless the acts are set forth. And it is clear that unless there is a corporation shown there cannot be a usurpation of any office.1

The case is different where an usurpation of a public office, or of an office in a private corporation created by public act of the legislature, is charged; for the court takes notice of the political divisions of the state and the provisions contained in public laws.5

1 People v. Albany, etc., R. Co., 1 Lans. (N. Y.) 308; People v. Clark, 4 Colo. (N. Y.) 95; Com. v. Commercial Bank, 28 Pa. St. 391; State v. Hardie, 1 Ind. (N. C.) L. 42; State v. Kupferle, 44 Mo. 154; City of E. Dallas v. State (Tex.), 11 S. W. Rep. 1030. Where the complaint being against the corporation alleged that it had omitted to perform certain acts essential to its existence as a corporation and had, since it had acted as a corporation, violated its charter, and the defendant demurred to the complaint as containing inconsistent allegations, the complaint was held good and to contain but one subject matter, to wit: the right of a corporation to continue to exercise certain franchises. People v. Turnp. & Bridge Co., 20 Barb. N. Y. 518.

2 People v. Kingston Turnp. Co., 23 Wend. (N. Y.) 193; People v. Bristol Turnp. Co., Id. 223.

8 Danville, etc., Co. v. State, 16 Ind. 456; People v. De Mill, 15 Mich. 164. 4 A complaint which fails to show that the offices usurped are corporate offices, may be amended in that respect. Gunton v. Ingle, 4 Cranch, C. Ct. 438. People v. De Mill, 15 Mich. 164.

When a person or a number of persons are charged with usurping the franchise of being a corporation it is sufficient to allege such usurpation in general terms.1 But when the information attempts to set out their title, which, when taken in connection with the public law, discloses such additional facts as makes their title good, the information will be obnoxious to a demurrer. It is never necessary to plead a public law; and there is no difference in this respect between a public law, strictly so called, and one merely declared to be so by the legislature.2

It is then incumbent upon the defence to show by answer the authority by which the right is claimed to exercise such franchise. Upon the filing of the answer the people may demur, join issue upon the facts therein stated, or reply with a confession and avoidance.3

But when the very nature of the proceeding is such as to assume the actual existence of a corporation which is charged with the usurpation of franchises, it does not or cannot legally possess, or with misfeasance or nonfeasance with respect to franchises which have been conferred upon it; and also where individuals are charged with the usurpation of franchises other than that of corporate capacity, the information must state with certainty to a common intent the facts and circumstances which constitute the offence, whatever its nature, so that it may be seen from the allegations. themselves and not by inference that there is a specific ground on which a forfeiture ought to be adjudged.4

1 Com. v. Commercial Bank, 28 Pa. St. 283; People v. Utica Ins. Co., 15 Johns. (N. Y.) 358; People v. River Raisin, etc., R. Co., 12 Mich. 389. The defendant must be charged with having usurped a franchise within the state. State v. Kingan, 51 Ind. 142.

2 People v. Ottawa Hyde Co., 115 Ill. 281; 3 N. E. 413.

8 "Nul tiel record" is well replied to a plea that the company defendant became a corporation by contract of consolidation. Com. v. Atlantic, etc., R. Co., 53 Pa. St. 9.

For a case where information asking a forfeiture for nonfeasance was held

But a distinction should be taken with respect to the degree of particularity required between an information alleging non-performance of a condition and one charging the exercise of a franchise not lawfully possessed by the defendant where such exercise consists in a multiplicity of acts the statement of which would result in prolixity. It is plain that to allege the breach of a condition in general terms is to assert a conclusion of law and the plainest principles of good pleading require that the act or acts, or the instances of failure to act should be specified in order that the court may see whether or not, when taken in connection with the charter, they amount to a breach and cause of forfeiture. The reasonableness of this rule is apparent when it is considered that when one is injured by a breach of duty he must know better than any one else in what the act or neglect consists.1

But, on the other hand, one may hold himself out to the public as authorized to do a certain class of acts or kind of business so that the exercise of the right is matter of notoriety and yet a knowledge of the par

to be defective or uncertain, see People v. Bristol, etc., Turnp. Co., 23 Wend. 222; Atty.-Gen. v. Petersburg, etc., R. R. Co., 6 Ired. 456; Dullam v. Wilson, 53 Mich. 392; State v. Southern, etc., R. Co., 24 Tex. 80. People v. Los Angeles Electric Ry. Co. (Cal.), 27 P. 673. An information in quo warranto was brought to forfeit the charter of the Manhattan Company in the City of New York for non-performance of a condition therein that it should "furnish and continue a supply of pure and wholesome water sufficient for the use of all such citizens dwelling in said city as shall agree to take it on the terms to be demanded by the said company, alleged in general terms that the defendants have not furnished or continued a supply of water sufficient (or a supply or any other quantity of pure and wholesome water) for the use of all citizens dwelling in said City of New York as were willing and desirous to agree for and take the same as aforesaid." It was held that the attorney-general in alleging a breach of the conditions was bound to name such citizens as were willing to agree, etc., and that the naming of one individual would have been sufficient; also that he should have averred a request on the part of those citizens who wished a supply of water, or an offer to pay for it, or that the defendants had notice of such willingness or desire. People v. Prest., etc., of Manhattan Co., 9 Wend. 352.

1 Jansen v. Stuart, 1 T. R. 753; Van Ness v. Hamilton, 19 Johns. 349.