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CHAPTER LI.

QUO WARRANTO.

Sec. 1538. AGAINST WHOM ISSUED. —A quo warranto may be issued from the supreme court of the District in the name of the United States

First. Against a person who usurps, intrudes into, or unlawfully holds or exercises within the District a franchise or public office, civil or military, or an office in any domestic corporation.

Second. Against any one or more persons who act as a corporation within the District without being duly authorized, or exercise within the District any corporate rights, privileges, or franchises not granted them by the laws in force in said District.

And said proceedings shall be deemed a civil action.

Sec. 1539. WHO MAY INSTITUTE. — The Attorney-General or the district attorney may institute such proceeding on his own motion, or on the relation of a third person. But such writ shall not be issued on the relation of a third person except by leave of the court, to be applied for by the relator, by a petition duly verified, setting forth the grounds of the application, or until the relator shall file a bond with sufficient surety, to be approved by the clerk of the court, in such penalty as the court may prescribe, conditioned for the payment by him of all costs incurred in the prosecution of the writ in case the same shall not be recorered from and paid by the defendant.

Sec. 1540. IF ATTORNEY-GENERAL AND DISTRICT ATTORNEY REFUSE. If the Attorney-General and district attorney shall refuse to institute such proceeding on the request of a person interested, such person may apply to the court by verified petition for leave to have said writ issued; and if in the opinion of the court the reasons set forth in said petition are sufficient in law, the said writ shall be allowed to be issued by any attorney, in the name of the United States, on the relation of said interested person, on his compliance with the condition prescribed in the last section as to security for costs.

Sec. 1541. RELATOR CLAIMING OFFICE.—When such proceeding is against a person for usurping an office, on the relation of a person claiming the same office, the relator shall set forth in his petition the facts upon which he claims to be entitled to the office.

Sec. 1542. NOTICE TO DEFENDANT.—On the issuing of the writ the [clerk] court may fix a time within which the defendant may appear and answer the same. If the defendant can not be found in the Distriet, the court may direct notice to be given to him by publication as in other cases of proceedings against nonresident defendants, and upon proof of publication, if the defendant shall not appear, judgment may be rendered as if he had been personally served.

Sec. 1543. If the defendant shall not appear as required by the writ, after being personally served, the court may proceed to hear proof in support of the writ, and render judgment accordingly.

Sec. 1544. PLEADING. — The defendant may demur or plead specially or plead “ Not guilty” as the general issue, and the United States may reply as in other actions of a civil character; and any issue of fact shall be tried by a jury if either party shall require it, otherwise it shall be determined by the court.

Sec. 1545. VERDICT. —Where the defendant is found by the jury to have usurped or intruded into or unlawfully held or exercised an office or franchise, the verdict shall be that he is guilty of the act or acts in question, and judgment shall be rendered that he be ousted and excluded therefrom and that the relator recover his costs.

Sec. 1546. USURPING CORPORATE FRANCHISE. – Where the proceeding is against persons acting as a corporation without being legally incorporated, the judgment against the defendants shall be that they be perpetually restrained and enjoined from the commission or continuance of the acts complained of.

Sec. 1547. ELECTIONS OF DIRECTORS, AND SO FORTH.– Where the proceeding is against a director or trustee of a corporation and the court finds that at his election either illegal votes were received or legal votes rejected, or both, sufficient to change the result if such error be corrected, judgment may be rendered that the defendant be ousted, and that the relator, if entitled to be declared elected, be admitted to the office, and a mandamus may be issued to the proper parties, being officers or members of said corporation, to admit him to said office. The said judgment may require the defendant to deliver to the relator all books, papers, and other things in his custody or control pertaining to the said office, and obedience to said judgment may be enforced by attachment.

Sec. 1548. ACTION AGAINST INTRUDER FOR DAMAGES. —At any time within a year after such judgment the said relator may bring an action against the party ousted and recover the damages sustained by him by reason of such usurpation of the office to which he was entitled.

CHAPTER LII.

REPLEVIN.

Sec. 1549. WILL LIE FOR WHAT.-In any action of replevin brought to recover any personal property to which the plaintiff is entitled, which may have been wrongfully taken by or may be in the possession of and wrongfully detained by the defendant, it shall not be necessary to demand possession of said property before bringing the action therefor; but in such cases the costs of the action shall be awarded as the court may order.

Sec. 1550. DECLARATION.—The declaration in replevin shall be in the following or equivalent form:

The plaintiff sues the defendant for (wrongly taking and detaining) (unjustly detaining) his, said plaintiff's, goods and chattels, to wit: (describe them) of the value of -dollars. And the plaintiff claims that the same be taken from the defendant and delivered to him; or, if they are eloigned, that he may have judgment of their said value and all mesne profits and damages, which he estimates at dollars, besides costs.

Sec. 1551. AFFIDAVIT. -At the time of filing the declaration in replevin, the plaintiff, his agent, or attorney shall file an affidavit stating

First. That, according to affiant's information and belief, the plaintiff is entitled to recover possession of chattels proposed to be replevied, being the same described in the declaration.

Second. That the defendant has seized and detained or detains the

same.

Third. That said chattels were not subject to such seizure or detention and were not taken upon any writ of replevin between the parties.

Sec. 1552. UNDERTAKING.---The plaintiff shall at the same time enter ‘into an undertaking by himself or his agent with surety, appro!'ed by the clerk, to abide by and perform the judgment of the court in the premises. — Act of June 30, 1902.

[Sec. 1552. UNDERTAKING.-- The plaintiff shall at the same time enter into an undertaking with surety, approved by the clerk, to abide by and perform the judgment of the court in the premises. ]

Sec. 1553. IF GOODS NOT SEIZED. If the officer's return of the writ of replevin be that he has served the defendant with copies of the declaration, notice to plead, and summons, but that he could not get possession of the goods and chattels sued for, the plaintiff may prosecute the action for the value of the same and damages for detention, or he may renew the writ in order to get possession of the goods and chattels themselves.

Sec. 1554. PUBLICATION AGAINST DEFENDANT.-If the officer's return be that he has taken possession of the goods and chattels sued for, but that the defendant is not to be found, the court, subject to the provisions of section one hundred and eight hereof as to mailing notice, may order that the defendant appear to the action by some tixed day; and of this order the plaintiff shall cause notice to be given by publication in some newspaper of the District at least three times, the first of which shall be at least twenty days before the day fixed for the defendant's appearance.

Sec. 1555. DEFAULT.-If the defendant fails to appear, the court may proceed as in case of default after personal service.

Sec. 1556. PLEADING.-If the defendant appear he may plead not guilty, in which case all special matters of defense may be given in evidence, or he may plead specially.

Sec. 1557. MOTION FOR RETURN.-On the taking possession of the goods and chattels by the marshal or coroner, by virtue of the writ of replevin, the defendant may, on one day's notice to the plaintiff or his attorney, move for a return of the property to his possession; and the court may thereupon inquire into the circumstances and manner of the defendant's obtaining possession of such property, and if it shall seem just may order the property to be returned to the possession of the defendant, to abide the final judgment in the action, and may, in its discretion, require the defendant to enter into an undertaking, with surety or sureties, similar to that required of the plaintiff upon the commencement of the action, and in such case a judgment for the plaintiff shall be rendered against the surety or sureties, as well as against the defendant. If it shall appear that the possession of the property was forcibly or fraudulently obtained by the defendant, or that the possession, being first in the plaintiff, was procured or retained by the defendant without authority from the plaintiff, the court may refuse to order the return. The defendant may also, on similar notice, object to the sufficiency of the security in the undertaking, and the court may require additional security, in default of which the property shall be returned to the defendant, but the action may proceed as if the property had not been taken.

Sec. 1558. OFFICER'S DUTY.-If the defendant shall notify the officer taking possession of the property, in writing, of his intention to make either of the motions aforesaid, it shall be the duty of the officer to retain possession of the property until said motion shall be disposed of, provided that the same shall be filed and notice given, as aforesaid, tó the plaintiff, or his attorney, within two days thereafter.

Sec. 1559. DAMAGES.-Whether the defendant plead and the issue thereon joined is found against him, or his plea is held bad on demurrer, or he makes default after personal service or after publication, the plaintiff's damages shall be ascertained by the jury trying the issue, where one is joined, or by a jury of inquest, where there is no issue of fact, and the damages shall be the full value of the goods, if eloigned by the defendant, including, in every case, the loss sustained by the plaintiff by reason of the detention, and judgment shall pass for the plaintiff accordingly.

Sec. 1560. JUDGMENT FOR DEFENDANT.-If the issue be found for the defendant, or the plaintiff dismiss or fail to prosecute his suit, the judgment shall be that the goods, if delivered to the plaintiff, be

1360-02-20

returned to the defendant with damages, or, on failure, that the defendant recover against the plaintiff and his surety the damages by him sustained, to be assessed by the jury trying the issue; or, where the plaintiff dismisses or fails to prosecute his suit, by the jury of inquest.

Sec. 1561. If the defendant has eloigned the things sued for the court may instruct the jury, if they find for the plaintiff, to assess such damages as may compe! the defendant to return the things.

Sec. 1562. JUDGMENT FOR PLAINTIFF.—The judgment in such cases shall be that the plaintiff recover against the defendant the value of the goods as found and the damages so assessed, to be discharged by the return of the things, within ten days after the judgment, with damages for detention, which the jury shall also assess.

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