C. A. 1903 HERNE BAY STEAM BOAT v. HUTTON. Stirling L.J. posting notices of what was proposed to be done, yet the risk was entirely that of the defendant. In that state of things the defendant entered into a contract COMPANY by which the steamship belonging to the plaintiffs was to be employed by the defendant for the purpose of this venture, which, as I say, was his alone. The contract was reduced into writing. I need not read it again, but the most material part is that the vessel is to be "at Mr. Hutton's disposal" to take out the party of passengers. I agree that this contract did not amount to a demise of the ship; it was, however, a contract entered into for valuable consideration as to the employment of the ship on the two days in question; and it at least conferred this interest on the defendant, that, if the plaintiffs had attempted to violate it, that attempted violation would have been a ground for an injunction at the instance of the plaintiffs to prevent it. That is established by De Mattos v. Gibson. (1) It is said that, by reason of the reference in the contract to the "naval review," the existence of the review formed the basis of the contract, and that as the review failed to take place the parties became discharged from the further performance of the contract, in accordance with the doctrine of Taylor v. Caldwell. (2) I am unable to arrive at that conclusion. It seems to me that the reference in the contract to the naval review is easily explained; it was inserted in order to define more exactly the nature of the voyage, and I am unable to treat it as being such a reference as to constitute the naval review the foundation of the contract so as to entitle either party to the benefit of the doctrine in Taylor v. Caldwell. (2) I come to this conclusion the more readily because the object of the voyage is not limited to the naval review, but also extends to a cruise round the fleet. The fleet was there, and passengers might have been found willing to go round it. It is true that in the event which happened the object of the voyage became limited, but, in my opinion, that was the risk of the defendant whose venture the taking the passengers was. (1) (1859) 4 De G. & J. 276. (2) 3 B. & S. 826. C. A. 1903 For these reasons I am unable to agree with the learned judge in holding that in the contemplation of the parties the taking place of the review was the basis for the performance of HERNE BAY the contract, and I think that the defendant is not discharged STEAM BOAT from its performance. I also agree that there is no evidence that the plaintiffs repudiated the contract before any breach by the defendant. Appeal allowed. Solicitors: Jones & Hamp; Biggs-Roche, Sawyer & Co. COMPANY v. HUTTON. Stirling L.J. G. I. F. C. THE KING v. BEER. Municipal Corporation-Councillor-Disqualification for "holding" Office- By s. 32 of the Bankruptcy Act, 1883, a debtor who is adjudged bankrupt is disqualified for (inter alia) being elected to or holding or exercising the office of councillor, a disqualification limited by s. 9 of the Bankruptcy Act, 1890, to five years from the date of discharge. By s. 87 of the Municipal Corporations Act, 1882, a municipal election may be questioned by an election petition on the ground that the person whose election is questioned was at the time of the election disqualified, and shall not be questioned on that ground except by an election petition. A debtor was adjudicated a bankrupt in April, 1899, and in the following July obtained an order of discharge subject to suspension for two years and a half, which came into operation in January, 1902. In November, 1902, an election was held of councillors for a municipal borough, at which he was nominated and declared elected. In 1903 a rule nisi was obtained for a quo warranto calling on him to shew cause why he held and exercised the office of borough councillor : Held, that the remedy by quo warranto was taken away by s. 87 of the Municipal Corporations Act, 1882, only in those cases where the election was questioned on the ground of disqualification for election, and that bankruptcy being by s. 32 of the Bankruptcy Act, 1883, a disqualification not merely for election, but also for "holding" the office of councillor, quo warranto would lie. RULE NISI for an information in the nature of a writ of quo warranto calling upon one George Beer to shew by what right VOL. II. 1903. 3 A 2 1903 May 22, 25, 28. 1903 REX V. BEER. he claimed to hold the office of councillor of the borough of Ealing. The following were the circumstances which led to the granting of the rule. On April 27, 1899, George Beer was adjudicated bankrupt. On July 12, 1899, he obtained an order for discharge, subject to suspension for two years and a half; the discharge took effect on January 12, 1902. On November 1, 1902, an ordinary election of councillors for the borough of Ealing was held, and Beer was nominated and seconded and was declared by the returning officer to be elected a councillor for the Castlebar ward. On January 17, 1903, notice under s. 225 of the Municipal Corporations Act, 1882, was given to the mayor of Ealing on behalf of certain aldermen and burgesses of the borough and electors of Castlebar ward of their intention to apply for a mandamus commanding him to proceed to hold an election on a day to be appointed by the Court of a councillor for the Castlebar ward, on the ground that at the time of the election on November 1, 1902, Beer was disqualified for being elected to or holding or exercising the office by reason of having been adjudicated bankrupt, which disqualification (1) had not ceased or been removed, and that no election of a councillor had therefore been held within the time prescribed by the Municipal Corporations Act, 1882. On January 28, 1903, a rule nisi for a mandamus was granted, notice of it being, by direction of the Court, given to Beer. After argument the rule was discharged upon the ground that, Beer being the holder of the office in fact, mandamus would not lie to the mayor to hold an election for the purpose of filling the office; but a rule nisi for a quo warranto was granted directed to Beer and calling on him to shew by what right he held it. May 28. Danckwerts, K.C. (Loehnis with him), shewed cause against the rule. Under s. 87 of the Municipal Corporations Act, 1882, this election could only have been questioned by an election petition, for the disqualification was one which from the date of the discharge: see s. 9 of the Bankruptcy Act, 1890. (1) The maximum period of disqualification is fixed at five years existed at the date of the election. This is a good objection, not only to proceeding by mandamus, the office being in fact full, but also to the suggested remedy by quo warranto. The effect of s. 87 was to take away in such a case the old remedy by quo warranto, and to substitute for it the remedy by election petition. This is clearly the view taken of the effect of the corresponding section of the Act of 1872 by Kelly C.B. in Reg. v. Welchpool Corporation (1), where a councillor was re-elected after he had become disqualified by bankruptcy, and it was pointed out that any remedy must be by election petition. The same view was taken by A. L. Smith J. in Reg. v. Morton (2), and those decisions should be followed. Quo warranto will not lie in respect of any disqualification existing at the date of the election. [He also cited Hardwick v. Brown. (3)] Macmorran, K.C. (R. Cunningham Glen with him), in support of the rule. The remedy by quo warranto is not taken away by s. 87 of the Act of 1882. No doubt the election itself could only have been questioned by an election petition under that section, which deals with disqualification for election to an office, but the disqualification introduced by s. 32 of the Bankruptcy Act, 1883, extends also to holding or exercising the office of councillor. It cannot be that in such a case an election petition is the only remedy, for in that case, if no petition were presented within twenty-one days, the councillor would still hold the office, although he could not exercise it without subjecting himself to penalties, and the constituency would be unrepresented. No election can be held to fill an office held in fact by a disqualified person until he has been ousted from it, and this can only be done by quo warranto. Looking at the provisions of ss. 73 and 225 of the Municipal Corporations Act, 1882, it is clear that the remedy by quo warranto has only been taken away by s. 87 in cases where the disqualification is a disqualification for election to an office, and that it is left untouched as a remedy in other cases, such as the disqualification for “holding" an office introduced (2) [1892] 1 Q. B. 39. (3) (1873) L. R. 8 C. P. 406. (1) (1876) 35 L. T. 594. 1903 REX v. BEER. 1903 REX V. BEER. by s. 32 of the Bankruptcy Act, 1883. [He cited Rez v. Chitty. (1)] LORD ALVERSTONE C.J. This case raises a question of interest and of considerable difficulty. At first it came before us in the shape of a rule for a mandamus to the mayor of Ealing, calling upon him to shew cause why he should not proceed to hold an election of a borough councillor, and upon the argument the objection was taken that the office was in fact full, and that, therefore, no election could be held; and, further, that the only mode of questioning the election in fact held was by the presentation of an election petition as provided by s. 87 of the Municipal Corporations Act, 1882. After argument we were satisfied that mandamus would not lie, and that the rule, so far as the mayor was concerned, must be discharged. But it seemed open to argument that, although mandamus would not lie, a proceeding in the nature of a quo warranto would; and accordingly, upon the suggestion of the Court, the present rule nisi was obtained. The conclusion at which I have arrived upon the argument, though not without doubt, is that the remedy by quo warranto has not been taken away in the course of legislation. It will be convenient, in the first place, to consider the provisions of the Municipal Corporations Act, 1882, in which a distinction is drawn between disqualification for election to an office and disqualification for holding an office after election, though certain things disqualify for both. Sect. 12 enacts that certain interests are to disqualify a person for being elected and for being a councillor. Then comes s. 39, the special section as to bankruptcy, which provides that if a councillor is declared bankrupt he shall thereupon immediately become disqualified and shall cease to hold the office. It might have been contended originally that this section would have disqualified him from being elected to an office as well as from holding it; but it is not necessary to decide that point; for I think the section points to bankruptcy occurring after election, and I accept the view that s. 39 applies to a councillor (1) (1836) 5 A. & E. 609. |