In cases of quo warranto, the respondent is required to disclaim or justify, and the plea is the first pleading that indicates the facts concerning which the controversy as to the right of office will arise. The information charges the respondent with intrusion into an office, and calls upon him to show by what right he has assumed to hold it. The respondent may deny that he holds, or claims to hold it. Such a plea is a disclaimer, and no controversy of fact can arise upon it beyond the simple question of his exercise of the office. If he does not disclaim he must justify, and by a plea of justification he is bound to show all the facts necessary to establish his lawful right to hold the office. This is an affirmative showing, which he has the burden-of maintaining, and it must conclude with a verification. No issue of fact can be joined in such cases, except upon a replication, or some pleading subsequent thereto, either by denial or by confession and avoidance.
As soon as the parties have come to an issue on the facts, it is to be tried before a jury like any other common-law issue. It is not necessary to set forth in the information the facts which would negative the respondent’s title, and the latter cannot, therefore, demur to it for that deficiency, if otherwise sufficient, but must in all cases where he relies upon his own title, make a showing of it by his own pleadings.
The pleadings should be re-framed according to these rules, and leave is granted to substitute new pleadings.
