Commercial Bank of Rodney v. M'Caa

Mr. Justice Clayton

delivered the opinion of the court.

This writ was instituted on 26th September, 1843. On the 19th of the following month a writ of quo warranto was sued out against the bank.

At the May term, 1845, of the circuit court of Claiborne county, upon motion of the defendants, “ the writ and service thereon ” in this cause were quashed, because of the pendency of the quo warranto.

This was erroneous. At the time this suit was commenced, there was nothing to prevent its institution. Whatever other effect may be accorded to the quo warranto, it could give no right to quash proceedings, upon motion, which were regularly pending at the time it was commenced. A motion to quash is only regular, when the defect appears upon the face of the proceedings. What has since been the fate of the quo warranto, the record does not inform us.

The judgment must be reversed, and cause remanded.