bidding $250,000, which was the highest and best bid made on that day for the premises. By direction of the complainant's solicitor, after Blossom's bid and without his consent, the Marshal again adjourned the sale to June, 21, 1862, and gave notice that the sale would be opened with the bid of $250,000 so as aforesaid offered for the property. At the adjourned day, June 21, 1862, the Marshal opened the sale and Blossom advanced his bid to the full amount of the complainant's debt and costs and expenses of sale, $262,480.12. The sale was then again adjourned to October 1, 1862, by direction of complainant's solicitor; and October 1, the Marshal opened the sale and, by like direction, again adjourned it to January 15, 1863; and after this last adjournment was directed by the complainant's solicitor to discontinue the sale. These facts were all reported to the court by the Marshal. Blossom applied to the court by petition, July 9. 1862, to have the sale of the mortgaged premises confirmed to him on his bid of $262,480.12, made June 21, 1862. This was resisted by the complainants on the ground set forth in the affidavit of Mr. Carey. The court sustained the objection and denied the petition. Blossom appealed to this court. Mr. M. H. Carpenter, for appellant: A decree for a sale "To effect a partition, or to pay debts, virtually takes possession of the estate and vests in the court for the purpose of distribution." Williams' case, 3 Bland, 215; see, also, Schewen v. Vanderhorst, 2 Russ. & M., 75. The rights of all parties in the property are merged in the decree, and possession is vested by the decree of sale in the court, for the purpose of enabling it to sell the property and give possession. The parties have no longer any control over the property. In Andrews v. Scotton, 2 Bland, 636-657, the nature of judicial sales is elaborately discussed and many authorities cited. It is there held that in the contract of sale the court is the party vendor, and has the vendor's lien, etc., etc.; and the Chancellor distinguishes sales of specific property under a decree in chancery from sales on execution, where the court below has not determined what property shall be sold, in which case the officer and not the court is the vendor. 2 Bland, 636 to 657; see, also, Anderson v. Foulke, 2 Har. & G., 346. In Snyder v. Stafford, 11 Paige, 76, the Chancellor says: "Both parties appear to have fallen into the very common error of supposing that the owner of the decree had the right to control the action of the master, and to direct which parcel should be first sold." Kelly v. Israel, 11 Paige, 147; Collier v. Whipple, 13 Wend., 229; Breese v. Busby, 13 How. Pr., 488; Neilson v. McDonald, 6 Johns. Ch., 201; Baring v. Moore, 5 Paige, 52; Harrison v. Harrison, 1 Md. Ch., 331; Dixon v. Pyner, 7 Hare, 332; Blount v. Blount, 3 Atk., 637; Ex parte Manning, 2 P. Wms., 410. These authorities abundantly show that, after a court of equity has taken property into its own possession for the purpose of sale, it is the court, and not the parties, that makes the sale; it is the court that enters into contract relations with strangers to the suit, whom it invites by its advertisement to become purchasers of the property. In Harrison v. Harrison, 1 Md. Ch., 334, it was held that the neglect of the master to report the sale to the court did not defeat the sale. And in Brown v. Frost, 10 Paige, 243, and Mott v. Walkley, 3 Edw. Ch., 590, when the master had false reports, the court set them aside and confirmed the sale to the real purchasers. Hoffman, Master in Chancery, 217; Brown v. Frost, 10 Paige, 243. The remedy of the purchaser is by petition to the court, as made in this cause, for leave to perform his bid, and for confirmation of the sale to him. Baring v. Moore, 5 Paige, 48; Mott v. Walkley, 3 Edw. Ch., 590. The petition must be determined upon the facts as they existed when the petition was filed. Coster v. Turnor, 1 Russ. & M., 311. All contracts should be mutual; and courts should set the example by performing their own engagements. Blossom by his bid subjected himself to the jurisdiction of the court in all things pertaining to his bid and to the property; the court could have compelled him, by attachment, to perform his part of the contract or, in case he refused or was unable to do so, might have ordered the property resold at his risk, holding him liable for any deficiency. Mulliken v. Mulliken, 1 Bland, 541; Harding v. Harding, 4 Myl. & C., 514; Gray v. Gray, 1 Beav., 199; Collier v. Whipple, 13 Wend., 231. It is, of course, conceded that the purchaser buys, subject to the power of the court to open the biddings, according to the course of practice in courts of equity. This is a condition, and is the only one implied in the contract of sale. What are the causes that induce a court of equity to open the biddings? Collier v. Whipple, 13 Wend., 226; 2 Paige, 99; Newl. Cont., 168; Tripp v. Cook, 26 Wend., 157; Morice v. Bishop of Durham, 9 Ves., 349; White v. Wilson, 14 Ves., 151; Williamson v. Dale, 3 Johns. Ch., 290. To the same general effect, and clearly establishing the doctrine that no sale should be disturbed for mere inadequacy of price, but only upon the ground of fraud or surprise, or other. special circumstance, the following cases are cited: Collier v. Whipple, 13 Wend., 226; Duncan v. Dodd, 2 Paige, 99; Andrews v. Scotton, 2 Bland., 629; Young v. Teague, 1 Bai. Eq., 14: Seaman v. Riggins, 1 Green, Ch., 214; Williamson v. Dale, 3 Johns. Ch., 290; Gordon v. Sims, 2 McCord, Ch., 158; Am. Ins. Co. v. Oakley, 9 Paige, 259. The decision of the court below is reviewable on appeal. Tripp v. Cook, 96 Wend., 150; Collier v. Whipple, 13 Wend., 224; Delaplaine v. Lawrence, 10 Paige, 602; May v. May, 11 Paige, 201; Ryder v. Earl Gower, 6 Bro. Par. Cas., 606; Bailey v. Maule, 7 Cl. & Fin., 121, note; Ellicott v. Ellicot, 6 Gill. & J., 35. Messrs. Thomas C. T. Buckley, James S. Brown and John W. Cary, for respondents; The practice of courts of the United States | it is not binding upon the bidder until accepted, in cases of the foreclosure of a mortgage. and at any time after making it, before acceptwhere there is no rule of this court, is not gov- ance, the bidder is at liberty to withdraw his erned by the practice of the state courts, but of bid. In all public sales or sales at auction, the that of the High Court of Chancery in England. sale is consummated by the fall of the hammer Rule 90 in Equity of Sup. Ct. U. S.; Noonan by striking off, or by the words "going, gov. Lee, 2 Black, 499. [67 U. S., XVII., 278]. ing, going, gone," or "sold," or equivalent exThere was no legal sale. pressions, showing that the auctioneer accepts some bid that has been made. From that time the bidder is holden, and is not at liberty to be off. But until that time his bid is but a proposition, which he is at perfect liberty to withdraw. The bid of Blossom was a mere offer, which he might withdraw at any time before the property was actually knocked off to him and an entry to the effect made by the Marshal. Crock, Sher. Par., 473; 1 H. Bl., 81; 1 Pars. Cont., 479, 496, 497; Payne v. Cave, 3 T. R., 148; Fisher v. Seltzer, 23 Pa., 308; Rutledge v. Grant, 4 Bing., 623. The same principles which apply to other sales at auction, apply to judicial sales. The auctioneer or officer is agent for both parties, and it is his memorandum subscribed by him for both parties, which makes a contract. Chit. Cont., 261; Simonds v. Catlin, 2 Cai.,61; Jackson v. Catlin, 2 Johns., 248; Ennis v. Waller, 3 Blackf., 472; Robinson v. Garth, 6 Ala., 204; Barney v. Patterson, 6 Har. & J., 182; Christie v. Simpson, 1 Rich., 407; Elfe v. Gads den, 2 Rich., 373; Evans v. Ashley, 8 Mo., 177; Alexander v. Merry, 9 Mo., 514. The decree itself gives the defendant the right to pay off the mortgage at any time before the sale not before the day of sale or the hour of sale, or before the first bid, but before the sale itself. Mr. Justice Clifford delivered the opinion of the court: Respondents mortgaged their railroad to certain trustees as a security for moneys loaned and advances of various kinds, and to defray current expenses of operating the railroad and of keeping the same in repair. Suit was brought by the trustees and certain creditors, named in the bill of complaint, to foreclose the mortgage for a breach of the conditions, and the cause proceeded to a decree of foreclosure and of sale. Substance of the decree was that the mortgaged premises should be sold at public auction, under the direction of the Marshal of the district, unless the mortgagors should pay to the complainants, previous to the sale, the sum of $254,175, with interest from the date of the decree. Pursuant to that decree, the Marshal, on the 6th day of June, 1862, offered the mortgaged prem And the officer is bound to protect the prop-ises for sale, but as no bids were received he erty against sacrifice even at law, and may postpone the sale in his discretion after bids. Tinkom v. Purdy, 5 Johns., 345; Keightley v. Birch, 3 Camp., 321; Leader v. Danvers, 1 Bos. & P., 359. If the practice of English Courts of Chancery is to govern, then no bid was ever made. In England the officer has a book in which each person writes out his proposition and signs it. No other form of bids is considered; here there was no written offer, and no memorandum made by the Marshal, or signed by them. 3 Daniell, Ch. Pr., 906; 1 Sugd. Vend., 56. Even after the biddings are closed and the purchase money paid, the bidder in England acquires no interest in the land until after confirmation. 3 Daniell, Ch. Pr., 909; And if the premises are destroyed by fire, the bidder is not bound by his bid. 3 Daniell, Ch. Pr., 910; 1 Sugd. Vend. & P., 60; Ex parte Minor, 11 Ves., 559; 13 Ves., 518. The court will not allow the property of the defendants to be sacrificed, but will, upon a mere advance of price, set aside biddings. In one case Lord Lyndhurst set aside a bid of £12,010 on an offer of £500 more. 3 Daniell, Ch. Pr., 923; Lefroy v. Lefroy, 2 Russ., 606: Brooks v. Snaith, 3 Ves. & B., 144; Tait v. Lord Northwick, 5 Ves., 655. The purchaser should have paid or tendered money or he has no rights. This case, 1 Wall., 655 [68 U.S., XVII., 673]. The order of the court should be affirmed. There was no sale by the Marshal. The premises were offered for sale, and some bids made, but no bid was accepted. No bargain was closed or consummated. A bid, until accepted, is a mere proposition to purchase, and adjourned the sale, under the instructions of the solicitors of the complainants, to the 19th day of the same month, at the same hour and place. Report of the Marshal also shows that he again offered the premises for sale at the time and place of adjournment, and that the appellant bid for the same the sum of $250,000, which was the highest and best bid received at that time. Fearing that the stock would be sacrificed if the sale should be completed, the agent of the stockholders made application to the solicitors of the complainants, requesting that the sale might be postponed for a short time, to enable the respondents to make some arrangements to pay the mortgage debt without a sale of the property. Yielding to that suggestion the solicitors gave such directions, and the Marshal accordingly adjourned the sale for the period of two days, giving notice at the time that the sale at the expiration of that period would be again opened at the same hour and place, and that the bid of the appellant would be regarded as pending. Such an arrangement having been negotiated during those two days, a further adjournment became necessary to enable the parties to carry it into effect; but when the sale was opened for that purpose the appellant was present and increased his bid to the full amount of the mortgage debt, including interest, costs and expenses of sale. No other bids having been made the sale was adjourned, as directed, to the first day of October, and afterwards to the 15th day of January following, but before the day to which the last adjournment was made the respondents paid the amount of the decree to the complainants, and the sale was discontinued. Record also shows that the appellant applied to the court by petition on the 9th day of October. 1862, to have the sale confirmed to him on his bid as increased to the full amount of the decree of the foreclosure and sale, but the court denied the prayer of the petition, and from that order the petitioner appealed to this court. 1. Appellant contends that, inasmuch as he bid the full amount of the decree, interest and costs, at a time when the mortgaged premises were duly offered for sale, and inasmuch as his bid was the highest and best bid offered for the premises, it became and was the duty of the Marshal to have struck off the property to him as the legal purchaser of the same, and that the district court erred in denying his petition for the confirmation of the sale. On the other hand, the respondents deny that any sale was ever made, and insist that the bid of the appellant was a mere offer of purchase, which he might withdraw at any time before the bid was accepted or the property was struck off to him, and an entry to that effect was made by the Marshal. received the assent of the auctioneer as the agent of the owner. Supreme Court of Pennsylvania held, in the case of Fisher v. Seltzer, 23 Pa., 308, that a bidder at a sheriff's sale has a right to retract his bid before the property is struck down to him, and that the sheriff has no right to prescribe conditions which will deprive him of such a right. Express ruling was that a bid at an auction before the hammer falls is like an offer before acceptance, and that when the bid is withdrawn before it is accepted there is no contract, and that such a bidder cannot be regarded in any sense as a purchaser. Rule, as laid down in the last edition of "Story on Sales," is substantially the same as that adopted in the preceding case. Speaking of ordinary sales at an auction, the author says that the seller may withdraw the goods or the bidder may retract his bid at any time before they are struck off, and the reason assigned for the rule is, that so long as the final consent of both parties is not signified by the blow of the hammer, there is no mutual agreement to a definite proposition. Sug. 2. Sales of mortgaged premises under a de- Vend. & P., 25. But as soon as the hammer is cree of foreclosure and sale are usually made struck down, says the same author, the bargain in the Federal Courts by the Marshal of the dis- is considered as concluded, and the seller has trict where the decree was entered, or by the no right afterwards to accept a higher bid, nor master appointed by the court, as directed in the the buyer to withdraw from the contract. Rutdecree. Such sales must be made by the person ledge v. Grant, 4 Bing., 653; Cooke v. Oxley, 3 designated in the decree, or under his imme- T. R., 654; Adams v. Lindsell, 1 Barn. & Ald., diate direction and supervision, but he may em- 681; Story, Sales, sec. 461. Same rules prevail ploy an auctioneer to conduct the sale if it be upon a sale under common law process as in made in his presence. Express directions of the other cases of sales at public auction, so far as decree in this case were that the mortgaged prem-respects the question now before the court. ises should be sold at public auction, unless the respondents, as mortgagors, should, previously to such sale, pay to the complainants the amount of the mortgage debt, as specified in the decree. 3. Contracts for the purchase and sale of goods or lands at public auction are contracts founded upon mutual promises and a mutuality of obligation, and consequently they cannot be regarded as having been perfected and made binding unless they have received the consent of the parties. Consent of parties being essential to the contract set up in this case, it becomes important to ascertain in what way and to what extent such assent must be manifested, and to distinguish accurately between mere offers or proposals by the one party not accepted or approved by the other, and mutual and positive engagements which neither party can retract or withdraw. Ad. Cont. (ed. 1857), pp. 23–154. Unaccepted offers to enter into a contract bind neither party, and can give rise to no cause of action; as, for example, if one merchant offer to sell goods to another, such an offer is not binding until it has been in some form accepted by the party to whom it was made. Liability cannot arise in such a case, because the party making the offer cannot be held answerable to the other for not selling the goods, unless that other, by accepting the offer, has bound himself to purchase. 4. Biddings at an auction, says Mr. Addison, are mere offers, which may be retracted at any time before the hammer is down and the offer has been accepted. Ad. Cont. (ed. 1857), 26. Leading case upon that subject is that of Payne v. Cave, 3 T. R., 148, where it was expressly held that every bidding at an auction is nothing more than an offer on one side until it has Until the property is actually struck off to the bidder he may withdraw his bid as a mere offer or proposition. Crocker, Sher.. 201. 5. Judicial sales made under the decretal orders of courts of chancery, are also, in this country, governed substantially by the same rules, except that such sales are usually made by the Marshal, or a master in chancery acting as an officer of the court, and are always regarded as under the control of the court, and subject to the power of the court to set the sale aside for good cause shown, or open it any time before it has been confirmed, if the cir cumstances of the case require the exercise of that power. Doubtless such sales are usually conducted under the advice of the solicitor of the complainant, and it is sometimes said that the solicitor, in all questions arising between the vendor and purchaser, must be considered as the agent of all the parties to the suit; but it is believed that the remark must be received with some qualification. Dalby v. Pullen, 1 Russ. & M., 296. Suppose it to be so, however, in a qualified sense, still it is true that the Marshal or master, as the case may be, is the officer of the court, and that as such his acts and proceedings are subject to the revision and control of the court. Collier v. Whipple, 13 Wend., 229. In sales directed by a court of chancery, says Judge Story, the whole business is transacted by a public officer, under the guidance and superintendence of the court itself. Even after the sale is made, it is not final until a report is made to the court and it is approved and confirmed. Either party may object to the report, and the purchaser himself, who becomes a party to the sale, may appear before the court, and, if any mistake has occured, may have it corrected. He, therefore, becomes a party to the proceeding and may represent and defend his own interest, and may be compelled by process of the court to comply with the terms of the contract. Smith v. Arnold, 5 Mason, 420. 6. Subject to those qualifications, and perhaps some others which need not be noticed, the question of sale or no sale, when it arises under a state of facts such as are exhibited in this record, may be fully tested by substantially the same rules as those which apply in cases of sales under common law process, or in other cases of sales at public auction. Tested by those rules, it is clear to a demonstration that there was no sale of the mortgaged premises in this case, because the property was never struck off to the appellant, nor was his bid, by act or word or in any manner, ever accepted by the seller; and the record shows that, at the hearing in the court below, nothing of the kind was pretended by the appellant. Instead of setting up that pretense, his complaint was that the Marshal erred in refusing to accept his bid, which, if possible, is less defensible, upon the facts and circumstances of the case, than the theory of the sale and purchase. 7. Officers appointed under such decrees, and directed to make such sales, have the power to accomplish the object; but they are usual. ly invested with a reasonable discretion as to the manner of its exercise, which they are not at liberty to overlook or disregard. Acting under the decree, they have duties to perform to the complainant, to the vendor and purchaser, and to the court; and they are bound to exercise their best judgment in the performance of all those duties. Such an officer, in acting under such a decree, if directed to sell the property, should adopt all necessary and proper means to fufill the directions; but he should, at the same time, never lose sight of the fact that, unless he is restricted by the terms of the decree, the time and manner of effecting the sale are, in the first instance, vested in his sound discretion. Usual practice undoubtedly is, that the officer in selling the property acts under the advice of the solicitor of the complainant; but it cannot be admitted that his advice is, under all circumstances, obligatory upon the officer. Granting that solicitors may properly advise the officer, still it must be borne in mind that the authority and discretion in making the sale are to a certain extent primarily vested in the officer designated in the decree. Unreasonable directions of the solicitor are not obligatory, and should not be followed, as if the solicitor should direct the property to be struck off at great sacrifice when but a single bidder attended the sale. Under such circumstances, the officer might well refuse to do as he was directed, and he might be justified in postponing the sale to a future day to prevent the sacrifice of the property. Every such officer has a right to exercise a reasonable discretion to adjourn such a sale, and all that can be required to him is, that he should have proper qualifications; use due diligence in ascertaining the circumstances; and act in good faith and with an honest intention to perform his duty. lected, or other attending circumstances, will be likely to produce great sacrifice of the property; but he may in such a case, if he thinks proper, postpone the sale, especially if it ap pears that the creditor will not sustain any considerable injury by the delay; and no reason is perceived why the same rule may not be safely applied in judicial sales made under the decretal order of a court of chancery. 8. Courts often say that an auctioneer is solely the agent of the seller of the goods until the sale is effected and that then he becomes also the agent of the purchaser, for certain purposes; but the Marshal or master, in carrying out a decretal order, is more than an auctioneer. They have duties to perform for all concerned, and in the performance of those duties they may adjourn the sale for good cause shown. Repeated decisions have established that rule, and in the leading case of Collier v. Whipple, 13 Wend., 229, the court went further, and held that such an officer was bound to exercise a reasonable discretion in that matter. Same rule had been previously sanctioned in numerous cases (Tinkom v. Purdy, 5 Johns., 345; Mc Donald v Neilson, 2 Cow., 190; Keightley v. Birch, 3 Camp., 521; Leader v. Danvers, 1 Bos. & P., 359), and was expressly laid down by the Chancellor in the case Kelly v. Israel, 11 Paige, 154, which is one of the latest cases upon the subject. But the record shows, in this case, that the bid of the appellant was never accepted, and that the adjournments were made by the direction of the solicitors of the complainants, to enable the respondents to pay the mortgage debt and save the mortgaged property from sacrifice. Negotiations to that effect were opened between the parties to the suit on the day the first bid of the appellant was made, and they were completed within two days, so that all concerned knew, or might have known, that a sale had become unnecessary. Subsequent postponement took place to enable the respondents to carry the arrangements into effect. They paid the debt, and the complainants executed a discharge for the same. Justice has been done, and all are satisfied except the appellant, and he has no just ground of complaint. Decree affirmed, with costs. Cited-91 U. S., 26, 248; 5 Sawy, 247; 27 N. J. Eq., The defect may be taken advantage of by de[No. 68.] Submitted Dec. 6, 1865. Decided Jan. 2, 1866. General rule is, that a sheriff is not bound to obey the directions of the attorney of the creditor to make an unreasonable sale of the prop-IN ERROR to the Supreme Court of the Tererty of the debtor, if he sees that the time se ritory of Nebraska. This was an information in the nature of a quo warranto, filed in the District Court of the Territory of Nebraska for the County of Douglass by the Territorial District Attorney for the First District. It was filed under ch. 28, Code of 1857, and the Act of October 29, 1858, page 232, laws 1858. It shows that the defendant in error had, for the space of four days or more before the filing of the information, unlawfully, without any legal appointment or right whatsoever, held, exercised, usurped and invaded, and at that time still did hold, exercise, usurp and invade the office of Associate Justice of the Supreme Court of the Territory of Nebraska, and excluded the relator therefrom; that the relator had been duly appointed, confirmed, commissioned and quali fied as such Associate Justice; and held and was entitled to hold that office, when he was so excluded therefrom by the defendant. It prays that the defendant may answer by what war rant he claims to hold the said office, that the relator be adjudged entitled thereto, and that the defendant be ousted therefrom. To this information the defendant filed a general demurrer. The district court held this demurrer to be well taken and dismissed the information, with costs against the relator. The cause was then taken by the plaintiff to the Supreme Court on error, and that court affirmed the judgment of the district court. It is brought to this court by writ of error to the Supreme Court of Nebraska. The case is further stated by the court. Mr. Woolworth, for plaintiff in error: First Point. That the information states facts sufficient to constitute a cause of action, seems too clear for argument. It sets forth the right of the relator to the office, and the usurpation of it by the defendant in the form sanctioned by the precedents and approved in numerous cases. Com. v. Fowler, 10 Mass., 290; People v. Richardson, and note thereto, 4 Cow., 100; People v. Van Slyck, 4 Cow., 297; People v. Bank of Niagara, 6 Cow., 196; Atty-Gen. v. Barstow, 4 Wis., 568; sec. 4, page 93, Laws of Nebraska, 1857. "Informations"; People v. Ryder, 12 N. Y., 433. Second Point. The district court seemed to entertain an idea that it was not competent for the Territory of Nebraska to institute this proceeding; or, in other words, for the relator to use the name of the Territory. We are not aware that any other point has been relied upon. If this was a valid objection, it was clearly the objection specified in clause 2 of sec. 86, Code of 1858: "That the plaintiff has not legal capacity to sue. ." This appeared on the face of the petition, and the objection, not having been taken by demurrer or answer, was waived. Sec. 88, Code of 1858. The same provision is contained in the pres ent Code of New York, and the construction we contend for has been sanctioned in several cases there. Dennison v. Dennison, 9 How. Pr., 246; Bank of Lowville v. Edwards, 11 How. Pr., 216; Eldridge v. Bell, 12 How. Pr., 547; Loomis v. Tifft, 16 Barb., 541; Zabriskie v. Smith, 13 N. Y., 322; Society v. Pawlet, 4 Pet., 480; see, also, clause 4, sec. 86, above cited. Third Point. The information was rightly filed in the name of the Territory. Territorial courts are not Federal Courts within the language of the Constitution. They are not constitutional but legislative courts. They exercise the jurisdiction of Circuit and District Courts of the United States, not by virtue of the Constitution conferring this jurisdiction on the federal courts, but by virtue of the Organic Act. The judges are not United States, but Territorial judges. This has long been the settled doctrine of this court. Am. Ins. Co. v. Canter, 1 Pet.. 511; Benner v. Porter, 9 How., 235; Beatty v. Ross, 1 Branch (Fla.), 198. Mr. William F. Lockwood, in person. Mr. Justice Swayne delivered the opinion of the court: This case was brought before us by a writ of error to the Supreme Court of Nebraska Territory. The proceeding is in the nature of a writ of quo warranto. The petition was filed in the District Court of Douglass County, to test the right of the defendant to exercise the function of the Judge of the Supreme Court of the Territory. The defendant demurred. The district court sustained the demurrer and gave judgment in his favor. The relator took the case to the Territorial Supreme Court where the judgment below was affirmed. This writ of error is prosecuted to reverse that judgment, The only question presented for our determi nation is, whether the petition was well brought in the name of the Territory, or whether it should not have been in behalf of the United States. The writ of quo warranto was a common law writ. In the course of time it was superseded by the speedier remedy of an information in the same nature. 5 Bac. Abr., 174; 3 Bl. Com., 263. It was a writ of right for the King. 4 Com. Dig., 190. In the English courts an information for an offense differs from an indictment, chiefly in the fact that it is presented by the law officer of the Crown without the intervention of a grand jury. 2 Hawk. P. C., ch. 29, sec. 4. Whether filed by the Attorney-General or the master of the Crown office, and whether it relates to public offenses or to the class of private rights specified in the Statute of 9 Ann., Ch., 20, in relation to which it may be invoked as a remedy, it is brought in the name of the King, and the practice is substantially the same in all cases. Cole, Inf., 65, 113; Rex v. Francis, 2 T. R., 484; 4 Bl. Com., 312. Any defect in the structure of the information may be taken advantage of by demurrer. The Queen v. Smith, 2 Moody & Rob., 109; Regina v. Law, 2 Moody & Rob., 197. In this country the proceeding is conducted in the name of the State or of the people, according to the local form in indictments, and a departure from this form is a substantial and fatal defect. Wright v. Allen, 2 Tex. Cr., 158; Wright v. People, 15 Ill.,417: Donnelly v. People, 11 Ill., 552; Eaton v. The State, 7 Blackf., 65; Comm. v. Lex & H. T. Co., 6 B. Mor., 398. In Wallace v. Anderson, 5 Wheat., 292, this court said, that "A writ of quo warranto could not be maintained except at the instance of the government; and as this writ was issued by a |