the attorney general satisfactory security to indemnify the state against all costs and expenses, which may accrue in consequence of the bringing of such action.

Action, how brought.-Any person, having a right to an office, can, in his own name, bring an action for the purpose of testing his right as against one claiming adversely. Brown v. Turner, 70-93.

Contra.-Such action must be brought in the name of the people of the state by the attorney general on the relation of the party aggrieved. Saunders v. Gatling, 81-298, and several cases there cited.

NOTE. The word "may" has been changed into "shall," and the attorney general cannot now refuse leave, if the requisites of this section are complied with.

Against whom quo warranto can be maintained. Entering into a bond, or taking an oath of office, are acts which constitute such a user or intrusion, as will support an action in the nature of quo warranto. Brown v. Turner, 70-93.

Sec. 609. Complaint and arrest of defendant, in action for usurping an office. C. C. P., s. 369. 1883, c. 102.

Whenever such action shall be brought against a person for usurping an office, the attorney general, in addition to the statement of the cause of action, may also set forth in the complaint the name of the person rightfully entitled to the office, with a statement of his right thereto; and in such case, upon proof by affidavit that the defendant has received fees or emoluments belonging to the office, and by means of his usurpation thereof, an order shall be granted by a judge of the superior court for the arrest of such defendant, and holding him to bail; and thereupon he shall be arrested and held to bail in the same manner, and with the same effect, and subject to the same rights and liabilities, as in other civil actions where the defendant is subject to arrest.

Complaint. Where the complaint sets forth the whole number of votes cast, and alleged that the relator received a certain number (which was a majority) and was duly elected, is a sufficient allegation that the relator received a majority of the votes cast. Hancock v. Hubbs, 98-589. Where the complaint alleges that the relator was duly elected by a majority over the defendant, it is not necessary to allege that he received a majority of the legal votes cast. Hahn v. Stinson, 98-591.

The complaint need not allege in what respect the county canvassers erred in rejecting the returns from particular voting places. Kilburn v. Patterson, 98-593.

Right to fees. When the subject of a controversy is the right to a public office, the action should be brought by the attorney general in the name of the people of the state; and if it be against a person for usurping a public office, the attorney general, in addition to the statement of the cause of action, "may also set forth in the complaint the name of the person rightfully entitled to the office, with a statement of his right thereto; and in such case, upon proof by affidavit that the defendant has received fees or emoluments belonging to the office, and by means of his usurpation thereof, an order may be granted by a judge of the supreme court for the arrest of such defendant, and holding him to bail," as in other civil actions where the defendant is subject to arrest. Patterson v. Hubbs, 65-119.

A person who is rightfully entitled to an office, although not in the actual possession thereof, has a property therein, and may maintain an action for money had and received, against a mere intruder, who may perform the duties of such office for a time and receive the fees arising therefrom; and such intruder cannot retain any part of the fees as a compensation for his labor. Howerton v. Tate, 70-161.

Action abates. Such an action abates on the death of the plaintiff relator. See obiter dictum. Tate v. Morehead, 65-681.

Fees cannot be subjected to payment of debts.-The emoluments of a public office are not subject to any judicial process at the instance of creditors. Swepson v. Turner, 76–115.

NOTE-The words "supreme court," formerly in this section, have been amended into "superior court."

Sec. 610. Judgment in such actions, Mandamus to issue; supersedeas bond. C. C. P., s. 370. 1885, c. 406.

In every such case judgment shall be rendered upon the right of the defendant, and also upon the right of the party so alleged to be entitled, or only upon the right of the defendant, as justice shall require. Whenever in any civil action brought under sections six hundred and seven and six hundred and eight of The Code, to try the title or right to hold any office, the judgment of the court shall be in favor of the relator in such action, it shall be the duty of the court to issue a writ of mandamus or other process in such action which may be necessary and proper to carry such judgment into effect, and to induct the party so entitled into such office. No appeal by the defendant from the judgment of the superior court in such action to the supreme court shall stay the execution of the judgment, unless a justified undertaking be executed on the part of the appellant by one or more sureties, in a sum to be fixed

by the court, conditioned that the appellant will pay to the party entitled to the same the salary, fees, emoluments and all money whatsoever received by such appellant by virtue or under color of his said office: Provided, that in no event shall said judgment be executed pending said appeal, unless a justified undertaking be executed on the part of the appellee by one or more persons in a sum to be fixed by the court, conditioned that the appellee will pay to the party entitled to the same the salary, fees, emoluments and all moneys whatsoever received by the appellee by virtue or under color of his said office during his occupancy thereof. NOTE. All of the above section after the word "require" in line four was added by ch., 406, acts 1885.

When action not brought on complaint of a contestant.-Where the action is brought by the attorney general on his own information and not on the complaint of a contestant, the judgment is rendered only in respect to the right of the defendant. People v. Hilliard, 72-169.

Sec. 611. Assumption of office, etc., by relator, when judgment in his favor. C. C. P., s. 371.

If the judgment be rendered upon the right of the person so alleged to be entitled, and the same be in favor of such person, he shall be entitled, after taking the oath of office, and executing such official bond as may be required by law, to take upon himself the execution of the office; and it shall be his duty, immediately thereafter, to demand of the defendant in the action all the books and papers in his custody, or within his power, belonging to the office from which he shall have been excluded.

Sec. 612. Proceeding against defendant on refusal to deliver books or papers. C. C. P., s. 372.

If the defendant shall refuse or neglect to deliver over such books or papers, pursuant to the demand, he shall be guilty of a misdemeanor, and the same proceedings shall be had, and with the same effect, to compel delivery of such books and papers as are prescribed by law.

Sec. 613. Damages, how recovered. C. C. P., s. 373.

If judgment be rendered, upon the right of the person so alleged to be entitled, in favor of such person, he may recover by action the damages which he shall have sustained by reason of the usurpation by the defendant of the office from which such defendant has been excluded.

Damages may be recovered.-Compensation in damages may be recovered, in an action subsequent to the judgment in the quo warranto, for the time the office has been wrongfully withheld. Swain v. McRae, 80-111; Jones v. Jones, 80-127.

A judgment in a quo warranto rendered after the term of office has expired cannot put the relator in the office, but it will lay the foundation for another action for the damages. Jones v. Jones, 80-127.

A person who is rightfully entitled to an office, although not in actual possession thereof, has a property therein, and may maintain an action for money had and received, against a mere intruder, who may perform the duties of the office for a time and receive the fees arising therefrom; and such intruder cannot retain any part of the fees as a compensation for his labor. Howerton v. Tate, 70-161.

Sec. 614. One action against several persons claiming office or franchise. C. C. P., s. 374.

Where several persons claim to be entitled to the same office or franchise, one action may be brought against all such persons, in order to try their respective rights to such office or franchise.

Sec. 615. Penalty for usurping office or franchise, how awarded. R. C., c. 95, s. 1. C. C. P., 8. 375.

When the defendant, whether a natural person or a corporation, against whom such action shall have been brought, shall be adjudged guilty of usurping or intruding into, or unlawfully holding or exercising any office, franchise or privilege, judgment shall be rendered that such defendant be excluded from such office, franchise or privilege, and also that the plaintiff recover costs against such defendant. The court may also, in its discretion, fine such defendant a sum not exceeding two thousand dollars, which fine, when collected, shall be paid into the treasury of the state.

This section author

Where the claim is bona fide, no fine will be imposed. izes the court,, in its discretion, to fine the defendant two thousand dollars, but where the party goes in under a bona fide claim of right and without criminal intent the court is averse to imposing any fine. Nichols v. McKee, 68-427.

Sec. 616.

Trial in such cases to be expedited; depositions. 1874-5, c. 173. 1889, c. 428.

All actions to try the title, or right to any office, state, county or municipal, shall stand for trial at the return term of the summons, if a copy of the complaint shall have been served with the summons, at least ten days before the return day thereof; and it shall be the duty of the judges to expedite the trial of such actions, and to give them precedence over all other actions, civil or criminal. But it shall be unlawful to appropriate any public funds to the payment of counsel fees in any such action. In all cases now pending or hereafter to be brought in any county of this state for the purpose of trying the title to the office of clerk of the superior court, register of deeds, county treasurer or sheriff of any county, it shall be competent and lawful to take the deposition of witnesses before a commissioner or commissioners to be appointed by the judge of the district wherein the case is to be tried, or the judge holding the court of said district, or the clerk of the court wherein the case is pending, under the same rules as to time of notice and as to the manner of taking and filing the same, as is now provided by law for the taking of depositions in other cases; and such depositions, when so taken, shall be competent to be read on the trial of such action, without regard to the place of residence of such witness, or distance of residence from said place of trial: Provided, that the provisions of this act shall not be construed to prevent the oral examination of such witnesses by either party on the trial as they may summon in their behalf.

NOTE. All of this section after the word "action," in line nine, was added by ch. 428, acts 1889.

Sec. 617. Judgment of forfeiture against a corporation. C. C. P., s. 376.

If it shall be adjudged that a corporation against which an action shall have been brought, has forfeited by neglect,