William Smyth, - Plaintiff in Error; Henry Farran Darley, - Defendant in Error
| Jurisdiction | England & Wales |
| Judgment Date | 27 July 1849 |
| Date | 27 July 1849 |
| Court | House of Lords |
English Reports Citation: 9 E.R. 1293
House of Lords
Mews' Dig. iv. 632. Cited, on point as to notice to corporator, in Merchants of the Staple v. Bank of England, 1887, 21 Q.B.D., 165.
Corporation "Magistrate" - Election - Summons.
SMYTH V. DARLEY [1849] II H.L.C., 789 [789] WILLIAM SMYTH,-Plaintiff in Error; HENRY FARRAN DARLEY,- Defendant in Error [July, 16, 17, 19, 27, 1849]. [Mews' Dig. iv. 632. Cited, on point as to notice to corporator, in Merchants of the Staple v. Sank of England, 1887, 21 Q.B.D., 165.] Corporation " Magistrate "-Election-Summons. Where certain acts of a Corporation are to be performed at a special meeting of the members of that Corporation, all the persons entitled to be present thereat must be summoned, if they are within a reasonable summoning distance. The omission to summon any one so entitled, renders the acts done at such meet ing, in his absence, invalid. A finding in a special verdict that a person entitled to be present at a special meeting of a corporate body was not summoned, and that he was at the time within summoning distance, throws on the party supporting the validity of the acts done at such meeting the onus of shewing a sufficient cause for his not being summoned. The election of treasurer for the county of the city of Dublin was vested by the 49 Geo. III., c. xx. in the '' board of magistrates of the county of the said city," and was directed to take place at the Sessions Court of the city, by vote of the magistrates there present. Held, that the Recorder of Dublin was a member of that board, and ought to have been summoned to a meeting of the magistrates summoned for that election, and that the omission to summon him rendered the election which took place in his absence invalid. In this case an action of assumpsit had been brought in the Court of Queen's Bench in Dublin, by Smyth against Darley, to recover the money received by the latter while he held the office of treasurer of the county of the city of Dublin. Smyth alleged that Darley never was lawfully elected to the office; but that he, Smyth, was on the 21st of February, 1839, thereunto lawfully elected under the 49 Geo. III., c. xx.,* and that [790] Darley's possession of the office was a usurpation. Most of the facts out of which the contention between these parties arose were set forth in the report of the case of Darley v. The Queen (12 Cl. and Fin. 520). For the purpose of the discussion on the present writ of error it is not necessary to repeat them; but the following facts, found in the special verdict settled in this case, are material. On the 31st of January 1831, Darley obtained a rule for a mandamus' to the lord mayor to summon a meeting of the magistrates in order to declare him (Darley) to have been duly elected on a previous day to the office of treasurer. That rule was not made absolute till the 12th June, 1839. In the mean time, namely, on the 21st February, 1839, the Lord Mayor, acting, as it was said, on the advice of counsel, treated the previous election as altogether void, and convened a meeting of the city magistrates to proceed to an election of treasurer, under the provisions of the 49 Geo. III., c. xx., as if the office was actually vacant. Before the year 1838, the Police Justices of the Dublin district had voted at the election of treasurer; but in that year a statute had been passed (1 Viet., [791] c. * By the third section of which it is enacted that " whenever the treasurership of the city of Dublin shall be vacant by the death, resignation, removal or dismission of the present or any future treasurer, the lord mayor of the said city for the time being shall, within twenty-one days after such vacancy, convene the board of magistrates of the county of the said city of Dublin, to meet at the Sessions House in the said city, between the hours of twelve in the forenoon and two in the afternoon, and then and there, by the majority of votes of such magistrates as shall be present, shall proceed to elect a fit and sufficient person to be treasurer of the said city of Dublin; and at such meeting the said lord mayor, or in his absence, the senior magistrate present, shall preside as chairman, and shall take the votes of the other magistrates, and shall not himself give his vote except in the case of equality of voices." 1293 II H.L.C., 792 SMYTH V. DARLEY [1849] 25) entitled, " An Act to make more efficient provisions relating to the Police in the district of Dublin metropolis," by which the jurisdiction of the Police Justices, known as Divisional or District Justices there, had been altered and limited, so that their jurisdiction no longer embraced the whole of the county of the city of Dublin, but was confined to a portion thereof. By this alteration it was deemed that their right to vote at the election of the treasurer was lost, and they were consequently not summoned to attend the meeting. No summons to attend the meeting of the 21st February 1839, was issued to either of the Sheriffs, or to the Recorder of the Court, though all were within summoning distance. The Sheriffs, however, attended, and tendered their votes, which were rejected. The Recorder did not attend. Only fifteen aldermen out of the twenty-four were present. Darley caused a protest to be entered against this meeting for illegality in several respects, but took no further part in the proceedings. Smyth was consequently the only person who appeared as a candidate, and out of fifteen aldermen who did not attend, the other nine, though summoned, being absent, he received the votes of fourteen. The mayor thereupon declared Smyth duly elected, and he and his two sureties immediately afterwards entered into recognizances as directed by the act, 49 Geo. 3, c. xx., and he was at once admitted by the mayor to exercise the office. On the 22d June 1839, Darley, in obedience to the peremptory mandamus, issued in pursuance of the judgment delivered on the 12th of that month, was admitted to the possession of the office, Smyth being present, and formally protesting against his admission. On the 16th of November, 1839, one Robert Kinahan obtained leave to file a quo warranto against him, on [792] which judgment was given for the Crown (3 Ir. Law Rep. 334). Darley brought that judgment by writ of error to this House, on the question whether such an office was by law the subject of a quo warranto, and the judgment of the Court below on that question was affirmed (12 Cl. and Fin. 520); the result of which was that Darley was then completely ousted. As soon as that judgment of affirmance had been pronounced, this action was commenced to recover the amount of the fees and salary...
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