The ancient writ of quo warranto for which an information in the nature of the writ seems to have become at an early period the general substitute, was a high prerogative writ in the nature of a writ of right for the king in the country from which we have derived it, against one who had usurped or claimed any office, franchise or liberty of the crown, to inquire by what authority he supported his claim to it, in order to determine the right. And as such offices, franchises or liberties in their origin pertain, as high prerogative rights, to the king exclusively, and could only be obtained and held by gift or grant from him, any one in the possession of such an office or franchise was commanded by the writ to show by what authority he held or exercised it, he was, of course, brought into direct, conflict with the king himself before the tribunal that was to try it, as claiming a high prerogative right pertaining to the sovereign alone, and which could only vest in a subject by actual grant to him or his ancestors. And, accordingly, in such a contest it was early ruled and established that it was absolutely incumbent upon the defendant in it to show to the satisfaction of the court that he had a good and valid title in law to the office or franchise in question, and if he failed to do so, it was pronounced a usurpation on the rights of the crown, and judgment of ouster was rendered against him. And the courts in this country have followed this ruling quite rigidly in cases of information in the nature of a writ of quo warranto, although we have no crown and no king and no prerogative rights under our republican forms of government and of popular elections to public offices such as the one now under consideration.
It was also at an early period equally well settled in the courts of England that an information in the nature of a writ of quo warranto should be granted as a matter of course whenever applied for in the proper form, but the propriety of the practice had before been questioned by Lord Mansfield and all the judges then sitting with him in the Court of King's Bench, as early as the year 1766, in the case of Rex v. Waroper, 4 Burr., 1963, in which after referring to a previous case which the court had discharged the rule obtained against the defendant, without sending *Page 507 the question to a jury, he remarked in regard to the case then before the court that "it would be very grievous that the information should go of course. And it would be a breach of trust in the court to grant it as of course; on the contrary the court are to exercise a sound discretion upon the particular circumstances of every case." And the same court expressed the same opinion in the succeeding cases of Rex v. Dawes, 4 Burr., 2022, 2120, 2277; Rex v. Stacey, 1 T. R., 1. Some twenty years later, reaffirming the same principle, Lord Mansfield again remarked, "I remember when it was so much the practice of the court to grant quo warranto informations as of course, that it was held prudent never to show cause against the rule, for fear of disclosing the grounds on which the party went. But now, since these matters have come more under consideration, it is no longer a motion of course, and the court are bound to consider all the circumstances of the case before they disturb the peace, and quiet of any corporation." The corporation referred to was that of the borough of Winchelsea, and the point to be considered was whether one Marten was duly elected mayor of it, on which election the validity of the defendants' franchise, as a freeman of the borough, depended; the quo warranto information moved against him was to show by what authority he claimed the franchise. And the ruling on this point, as above stated, has been recognized and reaffirmed in all the cases of the kind which have followed it, both in that country and in this, until it is now become a settled rule that it is always in the discretion of the court to grant or withhold an information in this nature, and to this end that they are bound to exercise a sound discretion upon consideration of the particular circumstances in each case. Cole on Criminal Information, etc., 56 Law Libr., 165; High's Ex. Leg. Rem., § 605.
It has also been decided that when the evidence presented to the court in the affidavits for and against the rule to show cause, is conflicting, and is not such as to raise a fair doubt on which side the balance inclines upon the question of fact presented, the court should not grant the application, or make the rule absolute. The King v. Mein, 3 T. R., 596. And in a later case *Page 508 Lord Kenyon states that the rule on this point in still stronger terms, which was upon a rule on the defendant to show cause why an information in the nature of a quo warranto should not be filed against him for exercising the office of bailiff of the borough of Seaford, the charter of which provided that the inhabitants and tenants resident in it should annually elect on the day stated some person from among themselves to be the bailiff of it, and the affidavits on the part of the relator stated "that the defendant was not resident within the borough at the time of his election, as was required and made necessary by the charter, or according to the true meaning and intent of the same," which was contradicted by affidavits on behalf of the defendant to the effect that he had rented a house in the borough on the 28th of September preceding for one year, and that he and his servant had slept in it that night, and quitted Seaford the next day after the election, but he had been there again, and resided and slept in the same house on the 23d and 24th of October last. For the relator it was argued that this was a mere colorable residence; and further that whether it was a colorable or abona fide residence, was a question of fact for the consideration of a jury; and the very circumstance of its being disputed was decisive to show that the rule should be made absolute in order that the jury might determine that question. But Lord Kenyon, C. J., said "I cannot forbear reprehending the manner in which the prosecutor's case has been laid before the court; the affidavits on his part contain nothing but a loose general charge against the defendant. When Lord Mansfield first came into this court he found informations in the nature of a quo warranto were had almost for the asking, but he soon saw the impolicy and vexation of such a rule; and therefore before he granted any such application he canvassed the case, and unless he found strong grounds for questioning the defendant's title, he (and the court sitting with him) always refused to let the information go. Such is the conduct which I am inclined to pursue; and therefore I shall consider all the circumstances of this case." The King v. Sargent, 5 T. R., 466. These cases have been followed by so many rulings to the same effect in England that Mr. Cole, an English *Page 509 writer of acknowledged authority on the subject, says that this is now the settled doctrine in the courts of that country. Cole on Criminal Information, etc., 56 Law Libr., 165. And it also appears to have been as generally recognized in the courts of this country, among which we have a case in the time of Gibson, C. J., In Pennsylvania, in which he even likened the status of the court in such a case to that of an inquest between an accuser and the accused, to which the inculpatory evidence should be submitted before he could be sent before a jury to be tried for the alleged usurpation. Commonwealth v. Jones,12 Pa., 365.
It has also been held that to entitle a party to such an information on the ground that the person holding the office had not been elected by a majority of the legal votes, the relator must by affidavit make out aprima facie case to the satisfaction of the court. Rex v. Mashiter, 6 Ad. and Ell., 153; 1 Nev. and P., 314; Rex v. Sanford, 1 Nev. and P., 328; and at this stage of the proceeding the court becomes the judges of the evidence, as well as of the law in the case, and of the weight and credibility of the testimony produced before them when the affidavits filed for and against the application are contradictory in their character. In the case before us there is but one affidavit on behalf of the relator, Purnal J. Lynch, in addition to his own annexed to his petition in the usual form, in support of the allegations contained in it, while on behalf of the respondent, Martin, there are five affidavits filed in addition to his own annexed to his answer, also in the usual form. The only disputed matters of fact alleged and deposed to by the relator in his petition are as follows: that at the general election held in New Castle County on the 7th day of November last in which he and the respondent were the principal competing candidates for the office of sheriff, and in which, according to the official returns of it, the respondent received but seven more votes than he did for the office, there were cast by divers persons not legally qualified to vote, a large number of ballots which were counted for the respondent, that is to say, in the election district known as Christiana north election district in Christiana hundred, there were thirty-seven ballots cast by persons who were not then residents *Page 510 of said election district and were not qualified to vote therein, and thirty-seven ballots cast by persons who had not paid within two years a county tax which had been assessed at least six months before said election. That in the election district known as Christiana south election district in Christiana hundred, there were three ballots cast by persons who were not then residents of said election district and were not qualified to vote therein, and three ballots were cast by persons who had not paid within two years a county tax which had been assessed at least six months before the said election, and there were two ballots cast by persons who theretofore had been convicted of crimes deemed by law felony, and were thereby disqualified from voting therein" and all of which ballots were counted for the respondent. That in the election district known as the Seventh Election District of the City of Wilmington, there were thirteen ballots east by persons who were not then residents of said election district and were not qualified to vote therein, and thirteen ballots east by persons who had not paid within two years a county tax which had been assessed at least six months before said election, and all of which ballots had been counted for the respondent. That in the eleventh election district of the city of Wilmington there were thirty ballots cast by persons who were not then residents of said election district, and were not qualified to vote therein, and thirty ballots were cast in said election district by persons who had not paid within two years a county tax which bad been assessed at least six months before the said election; all of which ballots were counted for the respondent. And that the whole number of illegal ballots, so cast and counted for the respondent amounted to eighty-five votes, and if deducted from the whole number of votes cast for him in the county for the office, which was seventy-nine hundred and eighty-six, there would remain but seventy-nine hundred and one, or seventy-six votes less than the whole number of votes (seventy-nine hundred and seventy-seven) cast for the relator.
But as the counsel for the respondent, in their argument on showing cause against the rule, took the ground that inasmuch as the relator, in his affidavit to his petition and the foregoing *Page 511 allegations contained in it, does not swear positively and directly to the truth of these statements upon his own actual knowledge of them, but only to his belief in them, which might have been, and doubtless was, founded on information merely, it could not be considered as sufficient proof of any one of the allegations contained in it as to any of the illegal votes which he asserts were cast and counted for the respondent, his affidavit to his petition being in the following words simply: "Before the prothonotary of this court comes Purnal J. Lynch, the petitioner above named, and being by me solemnly sworn according to law, says that what is contained in the foregoing petition, so far as concerns the deponent's act and deed, is true, and that what relates to the act and deed of any other person he believes to be true." It is apparent from the tenor of this, and marked discrimination between his own act and the act of any other person referred to in it, that so much of it as relates to the act of any other person or persons is based on hearsay and information merely, and it is equally apparent that he must have received, by hearsay from a number of persons present on that day in the several election districts mentioned, the information on which he rests his sworn belief that there were eighty-five illegal votes polled at them that day for the respondent. But it is not directly alleged anywhere in the petition that any of the alleged unqualified voters referred to in it voted for the respondent, but indirectly or by implication only is expressed in the allegation several times repeated in the same words, that there were so many illegal votes cast by unqualified persons in the election districts named, and that they were all counted for the respondent.
But the rule of law requires that the affidavits made in support of an application for an information in the nature of a writ of quo warranto shall be complete and sufficient in every respect, and contain positive allegations and a precise statement of the facts on which the prosecutor assails the title of the respondent to the office or franchise in question. Cole on Criminal Information, etc, 178; High's Ex. Leg. Rem., § 733; 3 Steph. N. P., 2460; King v. Newling, 3 T. R., 310; King v. Lane, 5 Barn. *Page 512 Ald., 488; Rex v. Sargent, 5 T. R., 466. And although such an affidavit to the following purport: that the deponent "understands and believes," or "has heard and believes," or "has been informed and believes," when it has reference to statements alleging a usurpation of the office merely, has been considered sufficient under certain circumstances, as where the usurpation was not denied by the respondent, who made no answer to the application, but the rule is otherwise when the allegations go to the validity of the title of the respondent to the office in question. Rex v. Harwood, 2 East., 177; Rex v. Blythe, 6 B. C., 240. And as in this case the allegations in the petition and affidavit of the relator go directly to the validity of the title of the respondent to the office in controversy, and there never having been any question or dispute from the inception of the proceedings, as to the fact that the respondent has been formally sworn in, and is now in full possession of and exercising the functions of the office, but which the relator alleges is by usurpation merely and without any legal right or title to it, under the rule of law before stated we must hold the affidavit of the relator to be insufficient to support any of the allegations contained in his petition in reference to the alleged illegal votes cast in the said several election districts mentioned in it. Besides, the weight and credibility of it as evidence in the case is justly subject to the animadversion that it is made in his own interest.
The other affidavit filed on behalf of the relator is that of Thomas Toy, and declares that on the day of the election he was present at the voting place in the said election district in Christiana hundred in said county, known as Christiana north election district, from the opening to the closing of the polls on that day; that on that day, and at the said voting place, there were cast thirty votes for James Martin for the office of sheriff of New Castle county by persons who were not then residents of the said election district, that none of said persons had within two years next before said election paid a county tax which had been assessed at least six months before the said election, but, in fact, they voted in said district on forged tax receipts. This, it *Page 513 will be observed, relates only to the election in Christiana north election district, and excluding the affidavit of the relator as insufficient, for the reason before stated, it constitutes the only evidence we have before us to support the allegations of the relator in his petition ha regard to the illegal votes alleged to have been cast in any of the election districts mentioned in it. It is free, however, from the defect objected to and allowed against the affidavit of the relator, for it is direct and positive in its statements and purports to be based on his own knowledge, and not on his belief merely; but in considering the degree of weight and credit to be given to it, we must not overlook the fact that it does not agree with the affidavit of the relator in the number of illegal votes alleged by them respectively to have been cast for the respondent, even in the election district to which this affidavit only applies; for relator alleges the number to have been thirty-seven, but Mr. Toy only thirty. Now, whence this discrepancy, and how could it have occurred between the relator and his other only witness to the alleged illegal votings in that election district in a matter of vital importance to this prosecution? And does not such a disagreement in their statements warrant a grave doubt whether either of them is correct or reliable, because if the rule of law requires that the affidavit of the relator shall contain a precise statement of the facts upon which he relies to disprove the claim or title of the respondent to the office, it must, at the same time, be of no less importance to him that the facts alleged must be proved by clear and conclusive evidence, and that where he has but one witness to a most material fact alleged by him, the affidavit of that witness should be entirely consistent with his own.
But on the other side we have the answer and affidavit of the respondent. He alleges, also under oath, that at the general election held pursuant to law, on the 7th day of November last, he was one of the persons voted for as a candidate for the office of sheriff of New Castle County, and that the said Purnal J. Lynch and George J. Pennington were the other persons voted for as candidates for said office. That, pursuant to the statute in that behalf, the inspectors of said county met at the county *Page 514 court-house in the city of Wilmington and county aforesaid, on the Thursday next following the said election, it being the 9th day of November last, together with the sheriff of said county, as a board of canvass, and did then and there canvass the returns made of the votes for the office of sheriff of said county, and the certificates returned by the inspectors were opened and read. That the said certificates were by the said board of canvass held and taken to be conclusive evidence of the result of said election, and that the votes shown by said certificates to have been cast throughout the said county for the office of sheriff, being calculated from the said certificates, the result was, that in said county deponent had received seven thousand nine hundred and eighty-six votes, and the said Purnal J. Lynch had received seven thousand nine hundred and seventy-seven votes, and George J. Pennington had received sixteen votes, and Thomas Ford had received one vote, and James Oldham had received one vote. That by the said certificates it appeared that deponent had received nine more votes for said office than the number received by the said Purnal J. Lynch. That the sheriff and eighteen (not sixteen, as stated in the petition of the said Purnal J. Lynch) of the inspectors present signed the two certificates that deponent had been duly chosen to the office of sheriff, as stated in said petition. That one of said certificates was delivered to the governor, who thereupon, on the 16th day of November last, duly commissioned deponent as sheriff of New Castle County, and deponent, having taken the oath of office, entered upon the performance of the duties of said office, and has since — to wit, on the 27th day of November last — entered into recognizance in the superior court in and for the county aforesaid, and now occupies and performs the duties and receives the emoluments of it. That this deponent is informed, and verily believes that at said election he was duly elected and chosen to said office by a plurality of all legal votes cast and counted for said office, and that he is informed, and verily believes, that no illegal vote or voles was or were cast and counted for him either in Christiana north election district or in any other election district in said county. That deponent is informed, and verily believes, that a *Page 515 large number of illegal votes were cast and counted at said election for the said Purnal J. Lynch, and that deponent did, in fact, receive a much greater number than nine legal votes for said office more than the number of legal votes received for said office by the said Purnal J. Lynch.
The answer and affidavit of the respondent traverses and denies all the allegations of the relator as to the illegal votes cast and counted for him in the several election districts specified in his petition as fully and directly as it could have been done under the general terms in which the allegations are made, without naming any of the persons who are alleged to have so voted. There are also filed, on behalf of the respondent, the affidavits of five other persons, all of which relate exclusively to the charge made by the relator as to the illegal votes cast in the Christiana north election district, and the first of which presented and read to us was that of James J. Vincent, in which he states that he was the inspector of the election on that day in that election district, and, as such inspector, presided at it, received all of the ballots cast, and was present throughout said election from the beginning to the end of it, with the exception of about five minutes while he was eating dinner, but even then he was still seated in the room, with his face towards the window of it, through which the ballots were received and deposited in the box, and not more than ten or twelve feet from the window, and where he could still see all the ballots that were cast during that time, and during which time Charles Green, one of the judges of said election in said district, received the ballots at the window, but not above ten ballots were received during that interval. That he was in a position to see all the tickets or ballots voted at said election, and that there were not more than ten or twelve open tickets voted at it, with their face or list of candidates exposed to view, and that every one of the tickets so voted was headed with the words, "Democratic Party," and that no open ticket, with the names of the candidates thereon exposed to view, headed with the words, "Republican Party," were handed in to the said election officers or were voted at said election; but, on the contrary, every such ticket was folded when *Page 516 voted, and so folded that the names of the candidates thereon could not be seen, and that it was impossible for Thomas Toy or any other person to see or know that any person voted for James Martin for sheriff, unless such voter showed him his ticket before he voted it. That the said Thomas Toy was not present at the said polls throughout the said election from the beginning to the close of it, but was absent therefrom several times, and in the aggregate about one hour, to the best of his belief. That there were eight hundred and twenty-one votes cast for the candidates for the office of sheriff at the said election in the said district; that he has an extensive acquaintance with the voting population of it, and verily believes that there were no illegal votes counted at said election for James Martin for said office, and to which he added, in his supplemental affidavit — taken two days afterwards — that he has no knowledge of any forged tax receipt or receipts having been used at said election as evidence of the qualification of any person or persons to vote, or for any other purpose; that the only ballot cast at said election which was not counted was a double ballot for said James Martin for sheriff, and that all the time the said Thomas Toy was present at the polls of the said election, as stated in his former affidavit, he was openly and actively canvassing in support of the election of the said Purnal J. Lynch to the said office of sheriff.
The next is the affidavit of the said Charles Green who says that he was one of the judges of election at the said election and was present at it in that capacity from the opening to the close of it, and presided over it during the time Mr. Vincent, the inspector, was eating his dinner, and received the ballots as they were handed in at the window, not more than eight or ten during that time. That he was in a position inside of the window during the whole election to see all the tickets or ballots as they were handed in at the window and deposited in the ballot box, and that he did not see at any time during the election upon any ticket or ballot handed in a heading for the Republican party, or the name of James Martin for sheriff, all such ballots being folded. That he has no knowledge of any forged tax receipt or receipts being used at said election as evidence of the qualification *Page 517 of any person or persons to vote; and that he has an extensive acquaintance with the voting population of Christiana north election district, and verily believes there was not counted at said election in said district any illegal votes for the said James Martin for the office of sheriff, the only vote cast at said election and not counted being a double ballot for the said James Martin for said office.
The next is the affidavit of Geneal Henry Du Pont in which he states that he is a resident and qualified elector of Christiana north election district, and was present at the said election in it from the opening to the close of it, with the exception of about one hour when he was absent at dinner, and that during his presence at it as aforesaid he was standing close to the window through which the ballots were handed in to the election officers, engaged in scrutinizing the conduct of said election and watching the balloting, and was during his presence at the said polls as aforesaid in a position as advantageous for seeing the ballots as and when they were cast, as was that occupied by Thomas Toy, or by any other person, unless it might have been by the officers holding the election, and that he saw no ballot or ballots voted at said election with the names of the candidates thereon exposed to his view, or to the view of any other person, as he verily believes, outside of said window, nor, so far as he knows, to the view of any person inside of it. That he has an extensive acquaintance with the voting population of said election district, and has no reason to believe that there was cast at said election any illegal vote for James Martin for sheriff, with the exception of a double ballot which he has been informed was cast, but not counted for him by the officers of. the said election. And that he has no knowledge that any forged tax receipt or receipts was or were used at said election, as evidence of the qualification of any person to vote at it; that Thomas Toy was not present at said polls during the whole time of the said election, but on the contrary he departed several times therefrom and was absent from the window of said polls while he was there, in the aggregate during said election upwards of one-half hour to the best of his recollection; and whilst there that he was *Page 518 openly canvassing in support of the said Purnal J. Lynch for the office of sheriff. And in addition to these there are on behalf of the respondent the affidavits of Joseph Knox and Benjamin F. Sheppard, both residents and qualified electors of the said election district, in which they each respectively depose to a statement of facts substantially the same as the statement contained in the affidavits last read.
Now, if upon these affidavits for and against the application we were in our discretion to order this case to a trial before a jury would it not be very much like going back to the days in the courts of England spoken of by Lord Mansfield, when as he said such could almost have been had for the asking, and if he and the judges of the Court of King's Bench of that day would not permit the peace and quiet of a municipal corporation or the office of a mere bailiff of an English borough to be so disturbed without strong and sufficient grounds in the opinion of the court to invalidate his title to it, should this court be less strict or remiss in the observance of the same wise and salutary rule of law and practice, when the validity of an election to the sheriff's office of this great county is the subject of inquiry moved for in the case? And if the precedent were once set to the contrary on light and frivolous, or insufficient grounds and proof presented on the affidavits, where would it end, particularly in cases of closely contested elections for the office resulting in a small majority or plurality of the popular vote either way, as in the present instance. The desire is very strong and the temptation very great on the part of the defeated party to get rid of such a result, and resort to any means and to strain any evidence in their power to accomplish their purpose of avoiding it.
We have in the affidavits the testimony of five witnesses for the respondent to one for the relator, two of the former officers of the election in question, and all of them resident in the said election district, and extensively acquainted with the voting population of it, against the testimony of a single witness on the other side who is also a resident in the said election district, but who mentions no names and gives us no information of how he acquired his singular knowledge that thirty of the persons who *Page 519 voted at the said election for the respondent for sheriff, were not then residents of the said district, as he alleges, the first inquiry naturally presented by it for our consideration, how could that have been done without any one of the five witnesses learning anything about it. Thirty non-residents is certainly no small number to vote at the polls of a rural election district, and that too without its coming to the knowledge apparently of but one single voter of either party at the polls that day; and it certainly does not lessen the singularity or improbability of it, that no one, not even, the witness, Toy himself, made any objection at the polls to vote of any of them upon that or any other ground, as we are warranted in inferring in the absence of any allegation by him or of any other witness to that effect.
The learned counsel for the relator seemed not to be unconscious of the weakness and infirmity of his proof on this point, and sought to palliate and excuse the deficiency of it on the ground that they were obliged to depend on voluntary affidavits solely, and had no power by legal process to compel any person to testify in such a case. But such is the law and the practice in such case, and it proceeds on the ground that it is not reasonable to suppose that any other person in the said election district favorable to the election of the relator, having knowledge of the alleged fact that he had been cheated and defrauded out of an election to the office in question by thirty or any smaller number of illegal votes cast for the respondent, he would not have hesitated to depose to such knowledge, as soon as called upon for it. And the more strongly are we convinced of it by the loud clamor which was raised over this matter when the board of canvass met, and by which I regret to say nearly one-half of its members were so much excited and transported by these charges and allegations of fraud and illegality, that they were prepared in their official capacity to perpetrate a more flagrant usurpation upon the powers of the legislature, and the jurisdiction of this court in the premises, in order to prevent the consummation of such an apprehended fraud, than even the alleged usurpation upon the rights of the State which we are now considering in the proceeding before us. For their sole power and duty when assembled *Page 520 as a board of canvass was purely ministerial in the premises. It simply was to ascertain from the certificates of elections returned to it by the inspectors of election in the hundreds and election districts of the county, the state of the election throughout the county, by calculating or adding up the aggregate amount of all the votes which had been given for each office in all the hundreds and election districts in the county, for every person voted for such office, and after the state of the election throughout the county had thus been ascertained by calculating all the votes as before stated, then before any adjournment or separation of the board, to make under their hands their certificates of such election, as provided for and required of them by the statute in that behalf. Rev. Code, 124; The People v. Van Slyck, 4 Cow., 297. The statute does not expressly provide or require, although it manifestly imports we think, that all the members of the board of canvass present should concur and unite in the performance of this purely ministerial function, and in the due and proper discharge of the duty thus imposed upon them, there certainly seems to be no ground whatever for any honest difference of opinion among the members of it who were familiar with the first and most simple rule in arithmetic, and possessed sufficient intelligence on the subject to properly apprehend the obvious legal limit of their official power and authority in the premises. But as the dissenting members of the board were so clearly wrong in declining to join with the majority of it in the certificate of the election of the respondent to the office in question, and in the unlawful course which they adopted on the occasion, it is not entitled to, and of course, cannot have any weight or effect whatever on the decision of the legal question now addressed to the sound discretion of the court in the case, that is to say, whether the respondent was duly elected to the office in question at the general election held in the county on the 7th day of November last, and whether we have sufficient evidence to the contrary now before us to entitle the relator who also claims it, to an information in the nature of a writ of quo warranto, to try that question before a jury at the bar of this court. *Page 521
And here the first and only question which we consider necessary to determine is this. Is there sufficient evidence before us in the affidavits of the relator and Thomas Toy, the former wholly uncorroborated by the latter in any of its allegations, except as to the illegal votes alleged to have been cast for the respondent in Christiana north election district, and only in part supported by it in relation to that election district even, and that to with the material variance and discrepancy existing between them before noticed, and with the latter affidavit, not only wholly uncorroborated by any, but is directly contradicted by all the affidavits filed, on behalf of the respondent, no less than five in number? To this question we must unhesitatingly answer that there is not sufficient evidence to require us in the exercise of a sound discretion with which we are clothed by law on such an application, to grant the leave asked for to file the information, and it is therefore denied. *Page 522