respect the matter was all right, for there were materials to have shewn the contrary had it been otherwise. The directors when served refused to answer. If they had ceased to be officers when the order was made, then they were right; for "officers," I think, means "officers at the time when the order is made."

I quite agree in the contention that the directors are by the operation of the Companies' Act, 1862, deprived of all control over the suit, and over the affairs of the company; but there is nothing whatever in the act to say that they cease to be officers. Therefore they are not out of the words of the Common Law Procedure Act, which does not say that "officers without control" shall be excepted. If, then, they are asked about matters within their knowledge which occurred before the windingup order, there is nothing to prevent our having jurisdiction.

Then comes the second question, whether, on the refusal to answer, we ought to grant an attachment on the application of the official liquidator who represents the cestuis que trust. He, in fact, says, “I am aggrieved by their refusal to answer; therefore I request you to compel them." It is said we cannot grant the attachment, because he is not the party applying for the interrogatories. Now, in form, the order for an attachment is to punish the disobedient party for the contempt. In substance it is to protect some private person's interests. Here the liquidator is interested substantially. There is no fear that we should grant the attachment upon the application of any impertinent meddler. The rule must be absolute as to those directors who have been personally served. SHEE, J. concurred.

Rule absolute accordingly.

Attorneys-Treherne & Wolferstan, for official liquidator; Flux & Argles, for some of the directors.

Quo Warranto-Municipal Corporation -Election of Town Councillor-Disqualification-Returning Officer-ResignationDisclaimer-Costs.

Where a disqualified person has been elected to an office, and another person claims to be seated in the office by reason of his having been really elected into it, the former cannot, by resigning the office, deprive the latter of his right to an information in the nature of a quo warranto, so as to have the question tried, or a disclaimer entered.

B, who was the mayor of T, acted as returning officer at an election of town councillors. He himself was a candidate; he received votes and voted for himself, and was elected. He afterwards made the necessary declaration; but upon discovering that he was disqualified, he tendered his resignation to the town council, which was accepted. M. was also a candidate at the election, and claimed to have been elected, as the votes in favour of B. had been thrown away. At the time of the election, he gave notice that B. was disqualified, as he was the mayor, and that he was ineligible as a candidate. After the resignation of B, M. obtained a rule nisi for an information in the nature of a quo warranto:-Held, that he was entitled to have the rule made absolute.

Rule calling upon the defendant to shew cause why an information in the nature of a quo warranto should not be exhibited against him to shew by what authority he claimed to exercise the office of town councillor of the borough of Tewkesbury, on the grounds, that being mayor of the borough, and the returning officer who presided at the election, he was not eligible as a candidate for the office of councillor of the borough, at the election of councillors on the 1st of November last; that the defendant was not on that day duly elected a councillor, and that his election was void.

It appeared, from the affidavits in support of the rule, that the relator, Mr. Moore, was a burgess, and qualified to be elected a councillor. On the 1st of November four councillors who had been longest in office, and of whom the defendant was one, went out of office. An

election took place in order to supply the place of those who went out of office. Tewkesbury is a borough without wards, and the defendant acted during part of the day, about three hours, as returning officer, being the mayor, and being qualified to serve as mayor until the 9th of November, and until his successor had been duly appointed, and had accepted the office of mayor of the borough. On the 29th of October he had allowed himself to be nominated for the office of councillor, and on the said 1st of November he allowed himself to be re-elected a councillor by the burgesses in the place of one of those who had gone out of office. While he was presiding, he received voting-papers on behalf of himself and the other candidates, and voted for himself as a candidate for re-election. The relator was also a candidate, having been duly nominated on the 29th of October. At the opening of the poll on the 1st of November, the relator served the defendant with a notice as follows: "That the said George Blizard, one of the persons nominated for the office of councillor at the present election, being the present mayor of the said borough, is disqualified for the office of councillor, and ineligible to be nominated or elected as councillor of the said borough during the term of his mayoralty, and therefore that all votes given to the said George Blizard will be thrown away." Copies of this notice were served on the assessors, were posted up on the town-hall, were served upon the burgesses, and were carried about the town. There were only four vacancies, and only three other candidates, besides the defendant and the relator. A considerable number of burgesses gave their votes for the relator, and at the close of the poll, he gave notice to the mayor and the assessors that he claimed to be elected, and that he required them to return his name in the list of persons elected, and not to return the name of the defendant in such list, he being disqualified. The name of the defendant was, however, returned as having been elected, and on the 5th of November he made and subscribed the declaration contained in the 50th section of 5 & 6 Will. 4. c. 76, and took upon himself the office of councillor of the borough, and had exercised the office, and had acted as coun

cillor since the election. The relator also duly qualified as councillor by making and subscribing the declaration.

It was sworn by the defendant that he only presided for about two hours, and that in consequence of sudden indisposition, he was obliged to leave, when the deputy mayor acted for him; that he was misled by the form of the notice, and did not understand the reason for his being disqualified, as there was no mention of the ground of his acting as returning officer; that there was no meeting of the town council till the 9th of November, and that between the time of his making the declaration and that day he had been informed that he was disqua lified by reason of his acting as returning officer, and that for that reason the election was void; that he attended the meeting, and resigned his office the first opportunity he had of doing so; that his resignation was unanimously accepted, and entered upon the minutes of the meeting; that the relator was present, and knew what was going on, and that he did not apply for the rule until the 12th of November; that the defendant had not in any way, either directly or indirectly, acted in or exercised the office of a town councillor after his re-election, except by making the declaration as before mentioned.

J. J. Powell shewed cause.-This rule ought never to have been moved for, and ought now to be discharged. As soon as the defendant discovered that he was disqualified he immediately resigned, and his resignation having been accepted by the council, he no longer held the office from which the relator now seeks to have him removed. The relator is himself to blame for not giving a more explicit notice of the ground of disqualification.-[He was then stopped.]

Cooke and Dowdeswell, in support of the rule. The relator claims to be admitted into the office himself, as all the votes which were given for the defendant were thrown away. The defendant ought not to have been elected at all, as he was disqualified by reason of his being the returning officer. The defendant cannot deprive the relator of the right to have the rule made absolute by resigning the office-The King v. Warlow (1), where Lord Ellenborough, C.J. said (1) 2 M. & S. 75.

that, "assuming it to be a valid resignation, still the rule must be made absolute; for a resignation was not an answer, although it might regulate the discretion of the Court in imposing the fine."

[LUSH, J.-In that case the defendant was in office when the rule was moved for.] That makes no difference. The very fact of his having resigned shews that he had been elected, and that the office was full. In The Queen v. Hartley (2) a rule was made absolute with costs, although the defendant was willing to resign, and in The Queen v. Earnshaw, reported in a note to that case, the Court decided that there can be no resignation "except upon the assumption that the party resigning is in office."

[MELLOR, J.-No doubt a man may not be allowed to resign by a mere voluntary act, but in the present case the resignation was accepted by the Town Council.]

That is not sufficient. The relator is entitled to have the information tried, or a disclaimer entered upon the record. The matter is settled by the judgment of Erle, J. in The Queen v. Sidney (3), where the defendant was willing to resign, and the learned Judge is reported to have stated as follows: "In The Queen v. Morton (4) the defendant offered to resign as soon as he heard of an objection being taken to his claim, and gave notice that he would attend at a meeting of the council to be held for that purpose, and there make his resignation. The Court seems to have thought that probably such a resignation would be valid; and if it had appeared that it had taken place before the argument, they might not have given the relator his costs. Here, however, the defendant procured himself to be elected, and not until now that the present rule is obtained and he cannot support his election does he offer to resign. But where an opposing candidate is to be seated instead of the party filling the office, a resignation is an insufficient remedy." If the relator were to proceed by mandamus, it would be returned that the office was full; he is therefore entitled to insist upon it that a disclaimer should be entered, or that he should be allowed to file the information.-They were then stopped.

(2) 3 El. & B. 143.

(3) 2 L M. & P. 149.

(4) 4 Q.B. Rep. 146; s. c. 12 Law J. Rep, (N.S.) Q.B. 123.

Powell (called upon by the Court).—If an information was to be filed, it would be necessary to state therein that the defendant "hath there claimed, and still doth there claim to be," &c.-see Corner's Crown Pr. p. 120; but that would not be the fact, as the defendant has not only resigned, but his resignation has been accepted. With regard to costs, of course they are in the discretion of the Court, and it must be remembered that the relator made his affidavit on the very day upon which the resignation was accepted.

[LUSH, J.-Did he ever ask that a disclaimer should be entered?]

No; he has never done so.

COCKBURN, C.J.-I own that at first I entertained a very strong impression that this rule was unnecessary, and that it ought to be discharged; but I am bound also to say, that Mr. Dowdeswell's argument has completely convinced me that my first impression was wrong, and that this rule ought to be made absolute.

I am very far from saying that, if a man elected and admitted to an office discovers that, for want of qualification, or for any other sufficient reason, he is not entitled to hold that office, that he ought not to have been admitted into it, and resigns it, a proceeding by quo warranto would be necessary in order to deprive him of all interest and right in that office, and to authorize and demand a fresh election.

The cases to which attention has been called, and in which it has been held in this Court that a quo warranto was necessary, or a rule for an information in the nature of a quo warranto, notwithstanding the resignation of the party against whom the proceedings are directed, have hitherto been where the resignation has taken place after the rule nisi had been obtained. I do not proceed, therefore, upon the authority of those cases; but in this case we have something more than a proceeding for the mere purpose of ousting the party from the office which he has been holding. If the mere purpose were to vacate the office, so that a fresh election might take place, it is obvious that the resignation of the office would effect that purpose just as efficiently` as the removal of the party from the office by an information in the nature of a quo

warranto; but in this case, and this is what appears to me to make all the difference, we have the proceedings by a relator, who not merely denies the validity of the election of the person against whom he institutes these proceedings, but who claims to have been elected into the office itself.

The relator here says, "Notice was given of the disqualification of Mr. Blizard; the votes, therefore, given in his favour after that notice were all votes thrown away, and must be treated as though they never had been given; and the effect of that will be to place me, the relator, in the majority, and entitle me to be elected."

Now, in order to enable Mr. Moore, the relator, to assume that position, and to be admitted into this office, it must necessarily be assumed that there was never any election of Mr. Blizard at all. I quite agree with Mr. Dowdeswell in his proposition in this respect; a resignation implies that the party resigning has been elected into the office which he resigns. A man cannot resign that which he is not entitled to, and which he has no right to occupy. To accept his resignation, therefore, on the part of the corporate body, is to assume that he has been properly elected; and to discharge this rule, treating this resignation as sufficient for the purpose of the case, would be to deprive the relator of the advantage, which, upon the rule, he would have, either of ousting Mr. Blizard, if the proceedings are carried to their ultimate result, or of having it admitted on the record by the defendant, not only that he has no right or present claim to the office, but that he never had any. The effect of a resignation would be simply to send the parties to a fresh election, while the effect of a disclaimer or judgment for the Crown upon the final issue of the quo warranto would be to displace and oust Mr. Blizard, leaving it open, which otherwise it would not be, to the relator, Mr. Moore, to claim the office to which he says he has been elected; and if he can establish that claim upon a mandamus, to be admitted into the office. I agree, therefore, in thinking Mr. Dowdeswell is right in his contention that it was necessary, to do justice between these parties, that these proceedings in the nature of a quo warranto should have been resorted to, and, therefore, that this rule

must be made absolute, unless Mr. Blizard I will do what often has been done with the consent of the Court, undertake to disclaim the office in the usual formal manner.

Then comes the question as to whether we shall do what in former instances has been done, namely, give the relator his costs. I cannot but conceive in this case there is considerable doubt as to the ultimate result of the proceedings, and I cannot but also see that, to a certain degree, Mr. Blizard has been placed in a false position by the act of the relator himself. I think the mode in which notice was given to the electors of the disqualification of Mr. Blizard, was a very, to say the least of it, ambiguous one. If the true nature of the disqualification had been pointed out in the first instance, the probability is, Mr. Blizard would have been immediately advised that he could not at the same time exercise the functions of returning officer and also be a candidate, and would have withdrawn from the position of a candidate, or at all events would not have taken upon himself to be admitted and sworn to the office, which for some days he filled. I think, as I have said before, it is very doubtful whether he would have taken upon himself the office at all, and also that it is very doubtful as to what will be the ultimate result, whether this was a sufficient notice of disqualification or not. Upon these two grounds, I think we need not in the present case go so far as to grant the costs; and I think the rule should be made absolute, unless there is an undertaking given on the part of Mr. Blizard that he will disclaim the office. Under those circumstances I do not think he ought to be called upon to pay the costs of the rule.

[Powell. I undertake, on the part of Mr. Blizard, that he shall disclaim.]

COCKBURN, C.J.-I think thus far the relator is entitled to the costs, namely, the costs of filing the information and the disclaimer, whatever they may be, but the costs of the rule should not be given.

MELLOR, J. Concurred.

LUSH, J.-I merely wish to add a very few words. Ientirely concur in the judgment given by my Lord. I was at first under a strong impression that this rule was entirely useless; and had that been the case, I should

By 41 Geo. 3. c. lxxxvi, an act relating to the Trinity House of Newcastle-upon-Tyne, the owners and masters of foreign vessels resorting to the port were, by section 6, obliged to employ duly licensed pilots, with a proviso that British vessels should not be compelled to employ such pilots if they were not desirous of doing so. By 6 Geo. 4. c. 125. ss. 58, 59, a penalty was imposed on the masters of vessels piloted by any other than a licensed pilot, within the limits in which such vessels should be, subject to exemptions specified in the act; but by section 89. nothing in the act is to alter or repeal any provisions contained in any act or acts of parliament relating to the pilots of any ports or districts in relation to which particular provision shall have been made in any act or acts of parliament. The act last referred to is repealed by 17 & 18 Vict. c. 120, but by 17 & 18 Vict. c. 104. (which came into operation on the same day) s. 353, the employment of pilots is to continue compulsory in all districts where it was compul

sory immediately before the acts came into operation, and all exemptions from compul sory pilotage then existing are to continue in force-Held, following Dodds v. Embleton (1), that the provision contained in the 41 Geo. 3. c. lxxxvi. s. 6. is still in force, and that it is not compulsory by law for the owners or masters of a British trader-vessel to employ a pilot in the port of the Tyne.

Appeal from the decision of the Court of Queen's Bench, of the 14th of June, 1864, discharging a rule for the plaintiffs to shew cause why the verdict should not be set aside, and entered for the defendants, on the ground that they, the defendants, were protected from liability by the fact of their vessel being, at the time of the alleged negligence, under the exclusive management of a duly authorized pilot.

The action was for damages sustained by the plaintiffs by reason of a vessel of theirs having been run down and injured by a vessel of the defendants.

The declaration stated that the plaintiffs, at the time &c., were possessed of a certain dredger, and the defendants were possessed of a certain screw steam-vessel, of which the defendants had the management, by their servants and mariners employed in that behalf, and the dredger and the steamvessel being afloat on the river Tyne, the defendants took such bad and improper care of their steam-vessel, and navigated and directed and managed the same and managed the engines of the same in so careless, negligent and improper a manner, that by and through the carelessness, negligence, mismanagement and improper conduct of the defendants, by their servants and mariners, the steam-vessel ran foul of and struck against the dredger of the plaintiffs, and the screw of the steam-vessel struck against the dredger, whereby the dredger was greatly damaged, and was swamped and sunk, and the machinery of the dredger, and divers goods of the plaintiffs, then being in the dredger, were wetted and spoiled, and the plaintiffs incurred expenses in repairing the damage done to the dredger, and in raising the dredger, and in clearing the water therefrom, and in repairing its machinery, and in preserv

(1) 9 Dowl. & Ry. 27.