a bye-law excluding from eligibility persons convicted 1860. V. SADDLERS' Company. of felony, and who had undergone their sentence, would The QUEEN be bad ?] It is not necessary to go so far as that. In Baggs' Case (a) the crimes are specified, upon attainder for which a citizen or freeman of a Corporation may be removed. But both that case and Sir Thomas Earle's Case (b) shew that there can be no cause to disfranchise a member of a Corporation, unless it be for something done which works to the destruction of the body corporate, or of its liberties and privileges. The bye-law is also bad, even if the exclusion of an insolvent from office is justifiable in itself, because it does not declare an insolvent ineligible, but merely prohibits his admission to office. Admission forms no part of the election, but stands to it in a relation analogous to that of the delivery of an executed deed to the execution. The prosecutor having been elected, the office is full, and no one can be elected in his place. The only remaining question which arises on the findings as to the issues joined on the first plea, is, whether the prosecutor's misrepresentation of the actual state of his circumstances constituted such fraud as to avoid his election. Now it is clear that although fraud may avoid a contract, it cannot divest an estate already vested. The misrepresentation, though made before the prosecutor was admitted, was made after he had been elected; and therefore did not nullify the election. [Blackburn J. I doubt whether, in the present case, the prosecutor's election was complete before his admission. A mandamus would go, after election, to compel admission; and I am disposed to think that, before admission, a quo warranto would not lie. Crompton J. A quo 1860. warranto might lie, before the admission of the person The QUEEN elected, if another person than he was admitted.] The V. SADDLERS' prosecutor's election was in no way influenced by the Company. misrepresentation, which, if it amounted to fraud, related to matters upon which Clarke had no right to question the prosecutor, and which he was under no legal obligation to Clarke to disclose with accuracy. It was not, therefore, such fraud as to invalidate the transaction; Vernon v. Keys (a). Fraud on matters collateral to a contract does not absolutely avoid the contract; White v. Garden (b), Feret v. Hill (c). Lastly, the issue on the second plea is found entirely in favour of the prosecutor, and, upon that finding alone, he is entitled to a peremptory mandamus; he having been removed from his office at a meeting of which he had no notice, to which he was not summoned, and which he had no opportunity of attending in order to defend himself; Baggs' Case (d), Rex v. Gaskin (e). cause. Knowles, contrà. By the charter of the Company, the majority of the Wardens, or Keepers, and Assistants, present at the time, may remove an Assistant from his office for ill conduct, or for any other just and reasonable And the charter contains a proviso, that every election of, amongst others, any Assistant, contrary to the directions or restrictions therein mentioned, shall be void and of no effect. It then, in very general terms, gives power to the Company to make bye-laws. The byelaw in dispute, of 23rd April, 1799, does not go beyond that power. Being made at a time when there was no Insolvent Act in existence, it evidently was intended to exclude from the office of Assistant any person who was or had been in insolvent circumstances, that is, according to Parker v. Gossage (a) and Biddlecombe v. Bond (b), of general inability to pay his debts. The prosecutor's election was therefore void, by reason of the proviso in the charter; being contrary to the directions and restrictions contained in the bye-law. A bye-law is void if repugnant to the charter, Tucker v. Rex (c); but here the bye-law is in strict accordance with the charter. The material question is, was the prosecutor duly qualified to be elected? It must be owned that the bye-law in terms points to admission, only, as that for which insolvency is to disqualify; but, reading the bye-law and the proviso in the charter together, the meaning must be that an insolvent person is not to be elected. Election gives but an inchoate right, which is perfected by admission. The next issue is, whether the prosecutor was duly elected, nominated and constituted an Assistant of the Company. Now, even assuming him to have been duly elected and nominated, he never was constituted an Assistant. "Constituted" must have some meaning, and must refer to the perfecting of election by admission. But inasmuch as the prosecutor obtained his admission by fraud, the admission was invalid and voidable by the defendants, who did in fact avoid it as soon as they discovered the fraud. The fraud bears out the allegation in the return, that the prosecutor had ill conducted himself. Then, was he duly in and entitled to hold his office? He could be so only by being duly sworn in and admitted, as enjoined by the charter. The title to every office is grounded on two things; the election of the party, and (6) 4 A. & E. 332. (a) 2 C. M. & R. 617. (c) 2 Bro. P. C. 304. 1860. The QUEEN V. SADDLERS' 1860. his being sworn into the office; Rex v. Ellis (a) and The QUEEN Regina v. Humphery (b). V. SADDLERS' And though the prosecutor was, de facto, sworn in and admitted, the admission, havCompany. ing been obtained by fraud, must go for nothing. Next, assuming the prosecutor to have been duly in the office, the defendants had power to remove him from it for just and reasonable cause; and, if the Court can see that such cause existed, it will not be astute to defeat the removal on the ground of want of form in the mode of procedure. The question whether there was just and reasonable cause depends on whether or not the disputed byelaw is a good one. The bye-law is objected to by the other side on the ground that it is in contravention of the common law. But every bye-law must, to some extent, abrogate what was before of common right. Moreover, the cases cited on the other side to shew that insolvency does not disqualify from office, at common law, turned upon the particular facts in each, and by no means bear out such a general proposition. And the fact that, here, the election of the prosecutor as an Assistant put him in the way of being made Renter Warden, and, as such, entrusted with the money of the Company, disqualified him, as being an insolvent, from remaining an Assistant, according to the dicta of Lord Mansfield C. J., in Rex v. Mayor &c. of Liverpool (c), which were referred to on the other side. [Cockburn C. J. Although he might be ineligible on that ground, as Renter Warden, it does not follow that he could not be elected an Assistant.] Again, the rule that a bye-law restricting the number of persons eligible to an office is bad, refers only to a restriction of the class eligible; the limitation, for instance, of an (b) 10 A. & E. 335. (a) 9 East, 252, n. (a). (c) 2 Burr. 723. 733. office, theretofore open to all members of a trade, to some only. Thus, the bye-law which was held bad in Rex v. Tappenden (a) was an attempt to narrow the class of persons who might be taken as apprentices by the freemen of a Company, by the custom of which every person who had served an apprenticeship of seven years to a freeman was entitled to the freedom. But it does not follow that a bye-law imposing a qualification (for instance, the passing an examination, or the possessing certain acquirements, or the being approved of) on the whole of a class, is invalid. Such bye-laws were upheld in Rex v. The College of Physicians (b), Rex v. Master, &c., of the Company of Surgeons (c), Green v. Mayor of Durham (d). The Case of the Tailors of Ipswich (e) shews the limits within which such bye-laws may be made. The bye-law in the present case is a reasonable regulation; for, in the majority of instances, insolvents and bankrupts are not fit persons to hold responsible offices; and ad ea quæ frequentiùs accidunt jura adaptantur. Lastly, the defendants having removed the prosecutor for a reasonable cause, the objection that the removal was informal, because he was not summoned to the meeting at which it took place, ought not to prevail. The defendants admit that the prosecutor ought, in strictness, to have had notice of that meeting; but the. question is, whether the Court, in the exercise of its discretion, will grant him a peremptory mandamus if of opinion that, though improperly removed from his office, he deserved amotion. Should the mandamus go, the prosecutor may, notwithstanding, be formally removed 1860. The QUEEN V. SADDLERS' Company. |