The Queen on the Prosecution of Kay Dinsdale, - Plaintiff in Error; The Wardens and Assistants of the Saddlers' Company, - Defendants in Error

JurisdictionEngland & Wales
Judgment Date01 January 1863
Date01 January 1863
CourtHouse of Lords

English Reports Citation: 11 E.R. 1083

House of Lords

The Queen on the Prosecution of Kay Dinsdale,-Plaintiff in Error
The Wardens and Assistants of the Saddlers' Company,-Defendants in Error

Mews' Dig. xi. 595, 1375. S.C. 32 L.J.Q.B. 337; 9 Jur. N.S. 1081; 9 L.T. 60; 11 W.R. 1004. Cited (arg.) on point as to effect of fraud on transactions (10 H.L.C. 420) in Dormer v. Ward, 1900, 69 L.J.P. at p. 147.

Corporation - Bye Law - Bankruptcy - Insolvency - Pleading - Mandamus - Quo Warranto.

[404] The QUEEN on the Prosecution of KAY DINSDALE,-Plaintiff in Error,-The WARDENS and ASSISTANTS of the SADDLERS' COMPANY,-Defendants in Error [1863]. [Mews' Dig. xi. 595, 1375. S.C. 32 L.J.Q.B. 337; 9 Jur. N.S. 1081; 9 L.T. 60; 11 W.R. 1004. Cited (arg.) on point as to effect of fraud on transactions (10 H.L.C. 420) in Dormer v. Ward, 1900, 69 L.J.P. at p. 147.] Corporation-Bye Law-Bankruptcy-Insolvency-Pleading-Mandamus- Quo Warranto. A bye-law of a corporate company declared that " no person who has become a bankrupt, or otherwise insolvent, shall hereafter be admitted a member of the court, unless it be proved that such person after his bankruptcy or insolvency has paid his debts, or shall have established a fair and honourable character for seven years subsequent to his bankruptcy or insolvency:" Held, that these words must be taken to mean not mere inability to pay debts in full, but inability proved by some outward, act, a notorious or avowed insolvency, such as a public stoppage in business, or the calling together of his creditors, and obtaining time, or terms of indulgence, or entering into a deed of composition, so as to mark, as a distinct fact, a period of time from which the insolvency like the bankruptcy might be computed. Per Lord Cranworth.-This interpretation alone could make the bye-law good. Where, therefore, a person, duly qualified as a freeman, was elected a member of the court, being at that time in insolvent circumstances, and was admitted to office, and was afterwards declared a bankrupt, it was held that he did not come within the meaning of the bye-law. After election, but before being admitted, the person elected was asked by the clerk of the company (though it was not averred in the return, and did not appear in evidence, that the question was put by the authority of the court) whether he was solvent, to which he answered that he was as solvent as any member of the court, and could pay 20s. in the pound. This representation was false, and was afterwards made the ground of a resolution of the court, passed without notice to him, to remove him from office: Held, that the insolvency here was not within the meaning of the bye-law; that the false representation was not one which affected his eligibility, and consequently that having been duly elected and admitted to the office, his removal without being heard in his defence was erroneous. A person validly elected to an office and admitted to it, cannot be removed from it without notice. The charter of the company gave the wardens and assistants thereof power to make such bye-laws as, according to their sound discretion, should be for the good government of the general body: [405] Per Lord Wensleydale.-Under this charter a bye-law made by them would be valid, though it might have the effect of limiting the number of persons eligible to office by superinducing new qualifications, as to which the charter was silent. Per Lord Wensleydale.-In order to show a valid objection to the admittance, after election, the return should have stated an insolvency within the true meaning of the bye-law. 1083 xh.l.c., 406 eeg. v. saddlers' co. [1863] In the 36th year of the reign of Charles 2, a Charter was granted to the Saddlers' Company, of which the parts material to the present case were these:-That there should be appointed from among the freemen of the company practising the art or mystery of saddlers four persons, who should be called the wardens or keepers of the company, and 20 other persons, who should be called assistants. That it should be competent for the wardens and assistants, or the major part of them, for reasonable causes, for his ill government, or ill conducting of himself, to expel or remove from office any warden or assistant, when another was to be elected. That the wardens, together with eight or more of the assistants, might make laws for the good government of the wardens, etc., and of all others of the mystery, such laws, etc., not being repugnant to the laws and statutes of the kingdom, nor to the customs of the City of London, nor to the jurisdiction and privileges of the mayor and commonalty. On the 23d April 1799, the wardens and assistants passed the following bye-law:-" That no person who has become a bankrupt, or otherwise insolvent, shall hereafter be admitted a member of the Court of Assistants of this company, unless it be proved to the satisfaction of the court that such person, after his bankruptcy or insolvency, has paid and satisfied his creditors the whole of their debts, or shall have established a fair and honourable character for seven years subsequent [406] to such his bankruptcy or insolvency, to the satisfaction of the court, or the majority of them." In the early part of the year 1849 there was a vacancy among the assistants of the company. At a court of wardens and assistants held on the 23d April 1849, several freemen were named as eligible, and Kay Dinsdale was elected a member of the court of assistants. The resolution to elect him was confirmed at the next subsequent court, held on the 25th July 1849. On the 24th September 1849, Giles Clarke, the clerk of the company, put to Dinsdale a question as to his solvency, to which Dinsdale (who did not then know that he had been elected) answered that he was quite as solvent as any man of the court, and able to pay his creditors 20s. in the pound. After that date Mr. Clarke caused Dinsdale to be summoned to attend a meeting of the next court, to be held on the 20th October 1849, and then to take on himself the office of assistant. On that day Mr. Clarke communicated to the court the question he had put, and the answer he had received. Dinsdale attended on the same day, took the oaths required by the charter, and was duly admitted to the office. He afterwards attended two meetings of the court, and acted in his office. On the 30th November 1849, Dinsdale was declared a bankrupt, in respect of debts due long before his answer made to Mr. Clarke. On the 20th December the wardens and assistants held a meeting to which Dinsdale, though as one of the assistants entitled to attend, was not summoned, and, at that meeting, without any notice given to him, he was declared to be removed from his office of assistant. That office confers on the holder eligibility to be appointed by ballot to the office of Renter Warden, in which he would receive the funds of the company, and of Prime Warden, in which he would have great authority in [407] the control, management, and expenditure of those funds. In November 1852, Dinsdale applied to the Court of Queen's Bench for a mandamus to restore him to the office of assistant of the Saddlers' Company. The mandamus having issued, a return was made, setting forth very fully the above facts, and insisting that Dinsdale had " ill conducted " himself, and that he had been lawfully excluded from the court of assistants. The plaintiff in mandamus traversed the return, denying any ill conduct, not denying the answer to Clarke, nor the subsequent adjudication of bankruptcy; but insisting that the court had no right to expel him in the manner and under the circumstances thus stated. The case was tried before Lord Campbell at the sittings after Michaelmas Term, 1858, when a special verdict was agreed to be settled. The special verdict set forth the above facts, and found that Dinsdale's representation as to his solvency was false and fraudulent. The special verdict was afterwards argued, and a peremptory mandamus awarded (30 Law Jour., Q.B., 186; see a translation of the charter of Charles 2: Id. 189 n.). This decision was reversed in the Exchequer Chamber (Id. 194). The present proceeding in error was then brought (the Judges were summoned, and Lord Chief Justice Cockburn, Lord Chief Baron Pollock, Mr. Justice 1084 reg. v. saddlers' co. [1863] xn.L.c.,408 Williams, Mr. Baron Martin, Mr. Justice Crompton, Mr. Justice Willes, and Mr. Justice Blackburn attended). Mr. Gibbons (Mr. Laurie and Mr. Sewell were with him) for the plaintiff in error.-There has not been here any thing done on the part of the plaintiff in error which affords a lawful justification for his removal from office. He had been, without any [408] interference on his part, duly elected. If not disqualified before election, he could not be disqualified after it: The King v. Hearle (1 Str. 625), The King v. Clarke (2 East, 75, 83); and in The King v. Slatford (Comberb. 419, 420; 5 Mod. 316), where a supposed ground of objection on account of insolvency existed, it was said, " This is a mandamus to admit and swear him: they return, by way of excuse, that the person is not qualified, which is no good excuse." The same rule was stated in The King v. Lancaster (Sayers, 40), where it was said, " As he was, in fact, elected, it is not a good return to a mandamus for restoring him, to say that he was incapable of being elected." In The King v. Lyme Regis (1 Doug. 80, 83), Lord Mansfield said that after election "they could not remove for want of an original title." The Plaintiff was, therefore, entitled to a peremptory mandamus, for the return was falsified, Buckley v. Palmer (2 Salk. 430). Secondly, there is nothing in the facts stated on the return to disqualify him from holding office. The qualification required by the charter is, that he shall be a freeman of the company; he was, and is soi. The bye-law created another qualification, not for election but for holding office after...

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