1873 PRETTY v. BICKMORE. The learned judge ruled that, as the duty of keeping the premises in repair was by the lease cast upon the tenant, the defendant, the landlord, was not liable; and he directed a nonsuit. C. Foster moved for a new trial, on the ground of misdirection. He submitted that, the duty of putting the premises into repair being thrown upon the landlord, the action properly lay against him, to avoid circuity: Payne v. Rogers (1); Rex v. Pedly (2); Todd v. Flight (3); Gandy v. Jubber. (4) He also referred to s. 102 of the Metropolis Local Management Act, 1855, 18 & 19 Vict. c. 120. BOVILL, C.J. I am of opinion that the nonsuit was right. The person who is in possession of the premises and who allows the coal-plate to be in a dangerous condition is the person responsible to the public for any injury resulting from its being out of repair. The defendant was not in possession: he had let the premises to a tenant who was bound by his covenant to maintain and repair them. Primâ facie, therefore, the person liable was the tenant. In all the cases where the landlord has been held to be responsible, it will be found that he has done some act authorizing the continuance of the dangerous state of the premises. The ground of the decision in Todd v. Flight (3) was, that the declaration contained an allegation that the defendant let the houses when the chimneys were known by him to be ruinous and in danger of falling, and that he kept and maintained them in that state (which allegation must on demurrer be assumed to be true); "and thus," says Erle, C.J., "he was guilty of the wrongful non-repair which led to the damage, and after the demise the fall appears to have arisen from no fault of the lessee, but by the laws of nature." That is wholly inapplicable to the present case; nor are any of the other cases which have been cited. Here, the coal-plate was, it seems, in a dangerous and unsafe state; and the defendant let the premises to a tenant who covenanted to maintain and keep them in repair. Under these circumstances, how can it be said that the defendant authorized the thing to be kept in a dangerous state? (1) 2 H. Bl. 351. (2) 1 Ad. & E. 822. (3) 9 C. B. (N. S.) 377; 30 L. J. (C. P.) 21. (4) 5 B. & S. 78; 33 L. J. (Q. B.) 151; and see 9 B. & S. 15, n. 1873 PRETTY ข. The simple question is, whether it was the wrongful act of the landlord or of the tenant. Mr. Campbell Foster says that the tenant was not bound to repair it. I differ from him. The tenant, knowing BICKMORE. that the coal-shoot wanted repair, was bound to put it in a safe and proper state. I think there was no obligation on the lessor to do it, and that the lessee would have no remedy over against him. If the duty of repairing had rested upon the landlord, no doubt he would have been liable. But I see no evidence of that, and therefore I think the nonsuit was right. KEATING, J. I also am of opinion that the nonsuit was right. In order to render the landlord liable in a case of this sort, there must be some evidence that he authorized the continuance of this coal-shoot in an insecure state; for instance, that he retained the obligation to repair the premises: that might be a circumstance to shew that he authorized the continuance of the nuisance. There was no such obligation here. The landlord had parted with the possession of the premises to a tenant, who had entered into a covenant to repair. HONYMAN, J. I am of the same opinion. Primâ facie, the occupier of the premises is the person liable for such an act of omission as this. If he seeks to shift the liability to his landlord, he must shew some circumstances such as those referred to at the end of the judgment of Erle, C.J., in Todd v. Flight. (1) If the tenant be under no obligation to repair, the landlord may be liable: but, if the tenant undertakes to keep the premises in repair, he thereby relieves the landlord from responsibility. Attorney for plaintiff: T. Johnson. (1) 9 C. B. (N. S.) 377; 30 L. J. (C. P.) 21. Rule refused. 1873 May 7. HARDWICK AND OTHERS, PETITIONERS; BROWN, RESPONDENT. Corrupt Practices (Municipal Elections) Act, 1872 (35 & 36 Vict. c. 40)— Election of Town Councillor-Disqualification by Composition with Creditors -Municipal Corporations Act (5 & 6 Wm. 4, c. 76), s. 52—Debtors Act, 1869 (32 & 33 Vict. c. 62), s. 21-Bankruptcy Act, 1869 (32 & 33 Vict. c. 71), s. 126. By s. 52 of the Municipal Corporations Act, 5 & 6 Wm. 4, c. 76, it is enacted that a town councillor who becomes bankrupt or compounds with his creditors by deed, shall "thereupon immediately become disqualified and shall cease to hold the office of such councillor," and "the council thereupon shall forthwith declare the office void, and shall signify the same by notice, &c., and the said office shall thereupon become void;" but that "every person so becoming disqualified and ceasing to hold such office on account of his being so declared bankrupt or having compounded with his creditors as aforesaid, shall, on obtaining his certificate, or on payment of his debts in full, be capable of being re-elected to such office." And by s. 21 of the Debtors Act, 1869 (32 & 33 Vict. c. 62), those provisions are extended to persons who have compounded with their creditors "whether by deed or otherwise." B., a town-councillor of Newcastle, in July, 1872, made a composition with his creditors under s. 126 of the Bankruptcy Act, 1869 (32 & 33 Vict. c. 71), under which a resolution was come to for a composition of 3s. 6d. in the pound (secured) in satisfaction of B.'s debts, the first instalment of which was payable six months after registration of the confirming resolution. The registration took place on the 23rd of September. On the 4th of November, B., placed his resignation of his office of councillor in the hands of the town-clerk, and announced his resignation by advertisement on the 6th of November, and by the same advertisement offered himself for re-election. At the annual meeting of the town-council on the 9th of November, the above letter was read, and B.'s resignation was accepted by the council; and on the 18th (there having been no declaration by the council that the office was void) he was re-elected a town councillor. Upon a case stated for the opinion of the Court, pursuant to s. 15 of the Corrupt Practices (Municipal Elections) Act, 1872 (35 & 36 Vict. c. 40):— Held, that B., having by reason of his having compounded with his creditors ceased to hold the office of councillor, was incapable of resigning it, and, the council not having pursued the course pointed out by s. 52 of the Municipal Cor porations Act, that the election was therefore void. Held, also, that B. not having "paid his debts in full," he was not qualified for re-election under that section. CASE stated for the opinion of the Court under the Corrupt Practices (Municipal Elections) Act, 1872, 35 & 36 Vict. c. 40, s. 15, subs. 6.: The respondent, Peter Brown, of Newcastle-upon-Tyne, mer chant, was duly elected councillor for the ward of East All Saints, in the borough of Newcastle-upon-Tyne, at an election holden on the 1st of November, 1870, and continued in the office until his resignation, which took place under the circumstances hereinafter stated. On the 30th of July, 1872, the respondent and John Henry Brown, with whom he was at that time in partnership, filed a joint petition under ss. 125 and 126 of the Bankruptcy Act, 1869 (32 & 33 Vict. c. 62), in the county court of Northumberland holden at Newcastle, for the liquidation of their affairs by arrangement or composition with their creditors. Proceedings were accordingly taken under s. 126, for a composition of their debts; and at an adjourned meeting of their creditors held on the 12th of September, 1872, resolutions were passed in the manner provided by that section, whereby it was agreed that a composition should be accepted by the creditors of 3s. 6d. in the pound, payable as follows,-1s. at six months from the date of the registration of the resolution passed at the second general meeting, 1s. at twelve months, 6d. at eighteen months, 6d. at twenty-four months, and 6d. at thirty months from the said date; to be secured by the promissory notes of certain persons, and a reversionary interest of the debtors in certain real property. The confirming resolution was duly registered on the 23rd of September, 1872. The respondent and the several persons mentioned in the resolution had at the date of the presenting of the petition the subject of this case duly performed the several requirements and conditions contained therein so far as the same had to be performed at that date; but the respondent had not paid his debts in full. On or about the 4th of November, 1872, the respondent placed his resignation of his said office in the hands of the town-clerk, and announced his said resignation by advertisement on the 6th of November following, and by the same advertisement offered himself for re-election in pursuance of a requisition signed by a large number of inhabitants of the ward. On the 9th of November, 1872, the annual meeting of the town council was held, and a letter from the respondent resigning his said office was read. Thereupon it was moved and seconded, that the resignation be accepted. A member of the council thereupon 1873 HARDWICK V. BROWN. 1873 v. BROWN. called attention to the circumstances of the proceedings by comHARDWICK position above mentioned, and to the provisions of the Debtors Act, 1869 (32 & 33 Vict. c. 62), s. 21, and the 5 & 6 Wm. 4, c. 76, ss. 52 and 53, and moved as an amendment,-"That the respondent, one of the members of this council for the ward of East All Saints in this borough, having compounded with his creditors under the Bankruptcy Act, 1869, this council doth hereby declare his said office of councillor to be void; that the mayor and the mover and the seconder of this resolution be and they are hereby requested to sign, and that the town clerk be and he is hereby instructed to countersign, a notice declaring the said office to be void; and that such notice be affixed in some public place within the borough." This amendment was not seconded; and the notice that the resignation of the respondent be accepted was carried; and the council did not declare the said office void. On the 18th of November, 1872, an election was held for the office of town-councillor for the ward of East All Saints, to fill the vacancy caused, as was alleged, by the respondent's resignation. The respondent and the other candidates were duly nominated for the said office, and the respondent obtained a majority of 176 votes,-682 votes being given for the respondent, and 546 for the candidate next in order,—and was thereupon declared duly elected by the returning officer. The petitioners contended that the respondent, under the circumstances herein before stated, was disqualified at the time of the election, by virtue of the provisions of the Municipal Corporations Act, 5 & 6 Wm. 4, c. 76, ss. 52, 53, and of the Debtors Act, 1869, 32 & 33 Vict. c. 62, s. 21. They also contended that the election was irregular and void, in consequence of the council having omitted to declare the office void, in accordance with s. 52 of 5 & 6 Wm. 4, c. 76. The questions for the opinion of the Court were,-1. Whether at the time of the election the respondent was or was not disqualified for election,-2. Whether the election was or was not irregular and void, in consequence of the town-council having omitted to declare the office void, as above mentioned. If the Court should be of opinion in the affirmative of either or both of these questions, the respondent was to be declared not to |