v. Mayor of Durham (a). The second objection, founded upon stat. 19 H. 7. c. 7., is disposed of by reference to the decisions upon the construction of that statute, stated in 2 Kydd, 108, from which it appears that, although a penalty may be incurred by the persons who make a bye-law without the approval therein directed to be obtained, yet the bye-law itself, made without such approval, is not invalid. We proceed to consider whether the last objection, pointed to the form of the bye-law, is fatal. That objection is, that the bye-law professes to invalidate the admittance only, and therefore impliedly permits the election, by which it is alleged that the right to admittance is vested, and after which it is said that the admittance is merely ministerial. The whole weight of this argument rests upon the assumption that the byelaw uses the words "be admitted a member of the Court of Assistants" in the same restricted sense in which the phrase "ad executionem officii sui admittatur" is employed in the charter, as pointing to an admittance after an election. Now assuming, for argument's sake, that the bye-law, if so read, would be inoperative, as to which we give no opinion, still, the question whether it is to be so read depends upon whether any other reasonable construction can be put upon its language, so as to make it operative; and, if so, whether the Court ought to construe a bye-law like a plea in estoppel, or whether we ought not to put upon it such a construction as, if possible, to make it effectual. Now the bye-law is, certainly, capable of a different construction from that put upon it by the prosecutor's counsel; for, according VOL. III. (a) 1 Burr. 127; S. C. Ld. Ken. 512. E. & E. 1860. The QUEEN V. SADDLERS' Company. 1860. The QUEEN v. SADDLERS' to the ordinary use of language, a law that a person shall not "be admitted a member" means that he shall be excluded from becoming so by any of the means conducive thereto; whether by election, admittance after election, or otherwise. Indeed, when it is considered that, in this case, the functions of election and admittance are performed by the same body, it seems unreasonable to draw a distinction between a rejection thereby at the election, and a refusal thereby of admittance after election; both processes taken together constituting in fact the person's being admitted a member. It is sufficient, however, to say that the construction above suggested is one of which the bye-law is capable, and which it ought to receive, according to the familiar rule of construction that instruments should be so construed as that they may stand good, rather than be defeated. That this rule is applicable to bye-laws sufficiently appears from the case of The Poulters' Company v. Phillips (a). The bye-law, read in the sense thus explained, and enforced, rendered invalid both the election and admittance of the prosecutor, by reason of his insolvency; and, if this were a proceeding against him by quo warranto, we must have given judgment for the Crown, by reason of such his disqualification. It was, however, agreed that the question raised by the present proceedings was different from that which would have arisen upon a quo warranto, because the prosecutor had actually been admitted and had seisin of the office before his removal; and that, inasmuch as the removal took place without his having an opportunity of being heard in his own defence, it was inoperative, and, so, that he is entitled to be restored; (a) 6 Bing. N. C. 314. 1860. V. SADDLERS' Company. and can only be removed, if at all, either by quo warranto, or by a regularly constituted meeting of the Court The QUEEN of Assistants, at which he may have an opportunity of being heard. We assent to this argument in so far as it asserts that the proceedings at the meeting of 20th December were inoperative to remove the prosecutor as for a corporate offence, adjudicated upon by dismissal, pursuant to the charter. We also think that the learned counsel for the prosecutor was well founded in his contention that a corporate offence not constituting a disqualification de facto, committed, after election, by a person otherwise well qualified, could not be relied upon in the return to a mandamus to restore, without shewing an expulsion, in consequence of such offence, after the prosecutor had had an opportunity of being heard. This is obviously reasonable, because the person accused might, if heard, put forward an excuse which the Court of Assistants, proceeding to consider the question, it may be less rigorously than would a strictly judicial tribunal, might in their judgment deem sufficient; or he might prove such circumstances as would induce them to overlook the offence and abstain from removing him. Such a course of reasoning is, however, inapplicable to a case like the present, in which the prosecutor appears to have been, from the beginning, disqualified by a bye-law, forming as much part of the constitution of the Company as does its charter, and where the Court of Assistants could not, consistently with their duty, waive that disqualification, or do otherwise than expel him. The distinction between such a case and that first put is obvious. It is also plainly distinguishable from that which arises where, upon a mandamus to elect, the Corporation 1860. The QUEEN V. SADDLERS' returns that the office is already full, so as to put it upon the applicant to try the question in a proceeding against the person really interested. We should be very slow to allow the prerogative writ of mandamus to issue, ordering the restoration to office of a person not qualified to hold it, or to discharge its duties; who ought never to have been elected, and who never would have been elected but for a mistake of fact on the part of the electors. It might well be held, and not inconsistently with any authority cited, that the maxim "error facti non nocet" governs the case, and decides it in favour of the defendants. It is, however, unnecessary to dispose of the case on this ground, because the only circumstance which could be plausibly relied upon as making a proceeding by quo warranto necessary, was the admittance de facto; it being clear that the insufficiency of the election would be a good answer to a mandamus to admit, even if it be not so to a mandamus to restore: see Rex v. Williams (a). And in our opinion the argument for the defendants was successful to shew that any effect of the admittance in this case was defeated by the falsehood whereby it was obtained. To this argument several answers were put forward on the part of the prosecution. First, it was said that the misrepresentation was a mere falsehood as to something collateral or immaterial. This depends upon whether the bye-law was valid, and it is disposed of by our decision in the affirmative. In each of the cases referred to under this head, except Stewart v. Aston (b), the Court held that the misrepresentation was not of a fact "dantis causam contractui" but of collateral matter. In the case of Stewart v. Aston (b), the (a) 8 B. & C. 681. (b) 8 Irish C. L. Rep. 35. Next, it marginal note of which is incorrect, a consideration had (a) E. B. & E. 148. (c) 8 Irish C. L. Rep. 35. 1860. The QUEEN V. SADDLERS' |