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Tous les autres exemplaires originaux sont filmte en cornmenpant par la premiere page qui comporte une empreinte d'impression ou d'illustration et en termmant par la dernlAre page qui comporte une telle empreinte. Un des symboles suivants apparaitra sur la dernlAre image de chaque microfiche, seion le cas: le symbols — »• signifie "A SUIVRE " '- symbols V signifie "FIN ". le Les cartes, planches, tableaux, etc., peuvent dtre film«s d des taux de reduction diffirents. Lorsque le document est trop grand pour Atre reproduit en un seul clich«, 11 est film« & partir de I'angle sup«rieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images nicessaire. Les diagrammes suivants illustrent la mdthod^. D 1 2 3 22 1 1 2 3 4 5 6 ^ 8 Ale .VI u 7 REPORTS OP ELECTION CASES By THOMAS HODOINS. Q. C. PROVINCIAL ELECTIONS, 1875, lender "The Election Law of i878^ (32 Vic., c. 21), " Tlie Controverted Elections Act, 1871" (24 Vic e 3) "The f^'T'Jff ^*^^" ^^^ ^^'■' "• ^)' " Th^ ^llo't Act of ;* r" ^ l"^" '• ^>' ""^ "^" ^"^ >»•''•«• to amend the Lam affectvng Elections of Mtmbcra of the Legislative Assembly, and the Trial of such Elections" (38 Vie c 9 "^.AJRrc III. PROVINCIAL ELECTIONS, 1879, Under Revised Statutes of Ontario, chapters 10 and 11 "The Voters' Lists Finality Act, 1878" (41 Vic, c. 21), ard Jln^c< to makefurtlier provisions respecting Elections of Members of the Legislative Assembly" (43 Vie., c. 4, of TORONTO: CARSWELL & COMPANY. 1889. HUV A mmmm. umuan | CANADA I 1 ■x . ■*• ^ f ^ \ ..f. , i ^''^^•'•J WEST TOKONTO. I'HOVISCIAL ELK<-r/ONs, is7S. 179 WEST ToliONTO (2). Bekohe Chief Jistke Dhai-er. ToRoxT... i:tl,, Uh, ,„„( lull, M„,i isr; w,„.,.„, A,u,,»,N, /.,,,„„ , ,. ,(„„„„; „^^,^ ,^^_^ The Odtli (.fctioii of 3l> ViV <• -'i ,[.'. .■ , t'lecti.,.,; *>'■ '"^ '-"'"'•-'"t "t "Uch caiKlulato,- avoi.lH the ''f;^';;te;'^ni-^-' ';:^;i-:tio„ a..,, ,...„«,. ho«« app«i,u.. Hie elect.".!., wa« .n",-T v .1 '-^"Poixlent fo,- the pu,Vo«eH of Iie..t of O..C pa.tioul«r XJ whi .h »^' '"'}''' P'"'V"''-'" ^''' "'« l"""-^!'. «'veP. it ,li.l J.„t i..te,.a r ;.d le the oib"';' '" ll" *'"^^ '^^"^ ^' receiver, to whieh i.o refe.e.."e v « , ».l T* J''" P"'-^''«»er or that the.efo.-e such aue.it t^ fl. ? '•"'*- ';'"-'*<'* '"ferentially : a,„l «"ch p<.ni„« hou... .t^';*;t^„;i;; 7rr,.iT;r2''''"'' '■'<-'""■•"'« The petition containe-l the usual chai-.e- to con„„f •l/n Bethnne and Mr. .V. fr. ffo>,ks for petitioner. ^1/n ^//..^ Bomee aad Mr. E.att for re.spon,lent. a Jnt'oflh"" " f "' ''"''^^ ^^ '^"'•••"P*^ P'-'^tic- ''J an agent ot the re,sponi ^. Macilonell; O— Von «oi^A „ Mr. Bell? A-Yes? O W ""^ ''"'"* ^'^'' j3 *es . y._Are you aware of any li,,uor 180 I'HOVI.NCIAL ELECTION'S. [a.d. having iKM-n j,'ivon on polIinK M. or soM .luring tin- hours ot polling . a.-No ; I hnv. h.-anl vagu. ,e,M.rts. y.-Nuver n.in.l what you havf heani. except you have heai.! it Iron. Mr. Bell ; were you present when any hquor was given ^ A.- Yes ; there was a nwin at thV polhng place where I .stood; I .11,1 not know his name; I never .saw hin, before ,„• since ; he gave n.e .some; it wa.s at the polling place in Sin.ooe Street; it wa.s at son,., hour m the morning after the poll opene.l ; I .lo not know who it was; h.. ha.l only one In^ttle ; I think he gave It to others. g._|)o y..„ kn.,w any one wh.. got any ? A.— No ; when the man came up I saw h.' was somewhat intoxicate.]; I never hear.l himcalle.1 by name I .0 not know who he was. Q._Did you remonstrate with him I- A.-Yes ; it wa.s a very col.1 day ; I had l,een out trom 9 o'clock in the morning t.) this hour, about 11 and It was very cold and st..rmy ; an.l he was very pressing that I should take some, and at last I .li.l take .some and others took some ; I have not the slightest i.lea who he was. Q.— Do you happen to know where he got the hquor? A.-No. Q—What kind of liquor was it? A -It was. I think, whiskey. Q.-That was the ..nly liquor you know of having been given on polling .lay ? A.— It was. except after the election was over. Cross-cmmined : Q. -This about the bottle occurred in the .street ? A-Ye.s. Q.-Was he particular in his attentions, or .lid he give the liquor to both parties ? A— To both parties, I think. Q.— Did he come there again ? A.— I don't think he came back, and no one else tried thi.s. Evidence was also given of treating during polling hours on the day of the election, at taverns within the electoral division, by John Ball and Richard Duplex, referred to in the judgment. Mr. Bethune said three cases of treating had been proved— one by Mr. Ball, another, the treating of an iH7.y] W'KST TolloNTO. 181 unknown pc-rson \,y I)„,,I,x. an.l th. thir.1. tl,. tn-at- •HK ..f Mr. Maclondl l.y an unknown poiHon. It was not .H«,-v to consi.lor the H.-st and .socon.l cas..s. as th..,v Mas not s„fhc>,..nt proof of ajri-ncy. The thir.| case, how- .ver was one which can.e „p for the Hrst tin.e un-K-r the s Htnte. The (,.Jth section of the Act of iHiiH prohil.ite.I the keepn.g open of taverns anvas hel.l to govern the wh..le section. In the ongnml Ontario Act. treating at n.eetings was a corrupt practice when done "with intent to promote the election of acan.li.late. That phm,segoverne.l the whole section; hut the Legislature ha.l oinitte.! that phrase from the new Act (3(i Vic. c. 2. .s. 2, with the design of Ketting ml .>t the .,u.3stion of "intent" altogether. The manifest policy .,f the law was to stop t' dvintf or celling ot lu,uoi^ on the polling .lay, whethe. ( ie inLt were innocent or not. He referre.1 to the Interpretation Ac . SI V.c, cap. I, .sec. 8. sub-sec. 89. to .show that all statutes were to be construed in a fai-. large an.l liberal manner, so as to ensure the attainment of the object of the Act. The object :,f the pr.,vision in the Election Act was to prevent the giving or selling of liquor. Two per- sons must be concerned in any such transaction or viola- tion of the law, and so the pei-son who received the liouor was as much a violator of the law as he who gave it Burr. 2o01. It had been argued that while it was an oftence to receive a bribe it was none to give one ; but Loi-d Mansfield .said that what it was a crime to take it was a crime to give ; the two things are recipi-ocal. ' ft 1.S2 PHOVIXCIAL ELECTIONS. [A.D. :^^:^rz::;:t'i^f '^?r='- "''^'''^t:^T::T;iZ''i"''''>^ .K.lfr:;;:t':,';:' '';"''''•• "■'••■;«"■ '■""•» '>■■' "f tl .. L , . ;,""•■ "»"'."■""■'' """ ""■ i"fnt x-n.pi.'Mftniu. iia(| iK'vn cni-i'ii'il i>Mf ;., ii • • «n ■■intent" ? • "' '^"'"•■"l^"! "'i^"- t l,„ AipCw^n.. ^^ L.fT''' ,'"' '.'''"'"■'""I «■«' .l.e : — ;^___j^^»iijvvas^iat tJie re.spondeut was (n) Reported lto>„i„ion Klec.tlong.l^TiT;:;;;;^ I [a.d. t' li<|Uor he »"l so lu'ld it i'ovi.»ti()n of f.naid that t a Jiid^'f |)once ]iad !<••' J (lit to 202) ; and vas iiiailu aiiH'iidfd I pll'Vl'Ilt I'l- i»laci's I'd. Th... election, ntciition instuiicc, ■ an elee- Id l)u set ade tilt* mist 1.U lat the ingday clause 'ttect it t dirter- i M'hich lit was l>i7:).] WEST ToRO.NTd. IH.-} IHTHonally and l.y his a^.-nts, hef,.,,. durin^r and aft.-r the H.-ct.on un.lty ofeormpt practicvs, as .letiiied l.y the Con- mvert^Ml Elections Act of I,S71 and the Khrtions Act of iHJ.i. wheiehy the naid election had hecoine void Mr Bethune opened the cane very l.,ieriy, statin^, that it w«h nuiM.as.l,h. lor h.ni to explain what pa.tieular facts he expected to prove l.y the diHeient «itnesses he shonid c-all Ihey all. or nearly all, l.eloncr,.d to the opposite party and ,t would have l„.,.„ nseless to apply t!, the,., tor .n on„at,on. He eonid only say that he'hoped to pmve that there wei-e c..,Tnpt p.actices. as deHned l.v the sU ute. and that they were co„„,.itte.l l.y or nnde'r the authonty of the respondent or hy his a^^nts. for whoso acts. ,„ hi.He ,vspe(.ts, I,,, was answeml.le ; that he fully expected that he should prove that the .espi.i.dent was put torwa,.l as a candidate hy the Liheral-Coiiservative Assoc,at,on ,n the City of To,-onto. on the understanding, hat he was to l,e put to no expense, and that he placed >-».Helt in their hands, therel.y constituting all its n.en.he,-s who took pa.t in the election as his agents and 1" suppo,-tot thisasse,tio„ he ,ead a pa.-t of the respon.l- onts depos.t,on. The t,ial laste.l pa,-t of two days, •luring winch Hfty-hve witn.>sses were exai.iine.l. ' I adjounied rather earlier than I had intended, as there was one w. ness. whose proUhle inipoi-tance to the petitioner ad only he. .,• apparent hy the testimony given ,t day; and I thought it better, undei-standing that no witnesses would te called for the defence, thivt the estunony m support of the petition should be completed betore Mr. Bethune summed up. At the close of this witness's examination. Mr. Bethune t'aine i i r/ ?r '''"■*'" "*■ ^'''^'^'y ^'^^ ^''''g'^ther unsns- tamed and that he -nust rest the case upon the allegation ottreating. Three cases of treating during the election had b en pi-oved. Two of them he would not press, as the fact that the parties who gave the li,,uor were agents of the respondent was not established ; but he contended that the case of Mr. John A. Macdonell was different. There was no 1N4 PRnVI.VciAI, EI.EfTlo.VH. fA.D. ♦'l.wl.id, „.a.l,. tivntinc with i, 1. 1 . ' 'T "• "'*^- it hI«ow,.,| that tl H- ' "■'•'*'*"•" "» ft '•an.Ii.lah.." •'"t in t a t ' !" r;'" '""*^7-'-^^-' i" tlu. int.. t the mitlAec.!:; ; r::^ '7 "-;•«'-'••'• HKai...t an.l vvasauuitt '?;;'■"''';'' ^''" '"'" "■•^'' "P-". ™.Hf cf l,ril«.,v -I ; , , ^ '"" " >""•"' /'"it are o„li„„ri|y .,,,1, ,|,„l| ..';"";'""'. '"/'""■"'"■'lii.iks *« ,..n» J i!ir:';s: «;;;;:;'''»"":■" ^" "■'"'" pemm within the- lin.its of . ^ '"" ^'"''"^' *" ^"y penalty of .s|()0 ij. every such cl^e Th ^'""'"' ""''"' * which was in n,v iu,hL T T'. ^*"*' '^'''* evidence But in no .such case wJ fh '^'* "^^ ^''""^^^^ fA.D. *■ lllf H'MjIolKi- ••erv aiiiiiu'd to .section of »tel, tav»jiji ' or drinks ' rnr,;. rn.nuus. Reference was „.a.le to the dcHnition ot corrupt practices, in the U Vic. cap. :j, .sec :} and to the repeal of that deHnition hy m Vic., cap. 2. .s'ec and the sul.st,tution of another deh-nition in lieu thereof' which la ter .leHnition n.akcs any violation of the (iOtl .^0 .on aunng the hou.. of polling a con.pt practice. ThKs change u. the law does not. however aLt the question I am calle.l upon to .lecide. Ifc leaves the pomt untouched whether the wonls " No spirituous 1.MU0.-8 or fermented li,,uors or hinks .shall he .sold or given make the purchaser or recipient in effect a seller or g.ver. and as such subject to a penalty of i^UH) m every such case, for ".sell- or "give" are the only words in the Act which can he made applicable. It mi.d.'t have been argued on the part of the respondent withes umch .sliow ot reason, that the earlier part of the .section .hows that the Legislature had in view a stringent pre- ventative to the dangers of having taverns all ot'her places where liquors are usually .sold kept open durin.. ISO I'KOVIXCIAL ELECTIO.VS. fc'iving or le„,n,,„ ,„„„". "'« l>i««lmg action the ■«tu.. in ti,„t i,,'::' „ :,• t™:,;,'':: ''■' ■ . r'° ,"'«"■ I'uni^liing «,„ lc.u,le,- , , Iv ■ ' """"*'' """ '>■ l..-ovi.l„,] f„,. tie 1 *" °, ,'""""•'■• ""•'•'■ """I "'-o i«titi:i./r„,^ir::ir T. "■"'"*'' '■"'■ ''^' *» liabli Ti ! ' ^"'^ ^"' ^"«"'J ^^'«uld be similar! V Act. ,or M thafwti t": l1 ,"f '"' """ "■°'^'' °'' ""^ punishment of onemr Lcula,- «' ? ■V""*'''' '"■■ *<^ «ne, they intenl'^fo t „! el: r' f-y *'«-% make no reference unle™ nt nt,aTv Z ° T""" ' ""^' liTth and OSth clauses J , , "I""'""/' ""d wlien.by the considered that b;;;°a*:,f;''"y *"" ""' "">>• giverof a bribethl , ? *" P"ni«li>nent of the of the ..te^er „ t^t ' ""' ""' "" P""'*™"' to ->»« that th:;!etiS;t:o:~.^trr"" rita"uX^:;LTtlrr'"-*-^^^^^^ .eport to the sLaker S " ^'^'''""- ' *»" "^o p.^vedtohave£„ tltelT;;"' "'"°'"'' '""'"'» that there i, no Z: t ",^n it' ^t ""' ^f'""^ '"" have extensively prevailed .7 l f , '"'"P' P"*""""*' follow the even . TXtl/it'f "'"" °", C*" '■> ' """"' '■'!'"■ --'«.», 1875-6, p. 20.) [a.d. be kept shut, In the 68th <1 the receiv- er refrained 1 penalty as section the , toinHuence The Legi's- ider timt by (3y had also sorrowed or for by the tion consist e closing of »', it appears ?ive a glass » call upon J subject to e similarly er of these he present appears to )i-ds of the les for the distinctly hich the}- en, by the that they nt of the nishnient !oinpelled t the re- •eturned ; ihall also has been ion; and practices Costs to 3, p. 20.) 1875.] WELLAXn. WELLAND (2). 1N7 Before Mr. Justice Gwyxxe. Wella.vii, 17i/i, jm awl ..'Sth Map, ISTo. William Buchner, Petitioner, v. James G. Cirrie, ItesjHtndeut. Princiiilex iiuidinij a Judiif in ilmdmi Eleiiion Cnnpn—liitlmiilalinti or QormnwHt »rraiits — Corru/)/ Triatittij — EtUhiKi- as to ojfir ,',/ BnlieH — Dili-iiatfx ton Coiirmtioii, itot A'jitit^ — Aijinii/ ami Sul'i- Aifiiqi — Corrupt Praifirt- hi/ a tari-rii-bijifr ana liuh-Aijtnl — 3;.' Vk., t:. 31, gn. 01 and IJO ; .HI Vic, c. ;.', n. J. Before subtenfinK a candi*' to the penalty of distiualitication, the Judge should fcL. well assurt ;eyoiul all possibility of mistake, that the offence charged is established. If there is an honest conflict of testi- mony as to the offence charged, or if acts or language are reason- ably susceptible of two interpretations, one innocent and the other culpable, the Judge is to toke care that he does not adopt the culpable interpretation unless, after the most careful consideration, he is con- vinced that in view of all the circumstances it is the only one which the evidence warrants his adopting as the true one. The responaent was cnarged with intimidating Government servants, during his speech at the nomination of candidates, by threatening to pi-ocure the removal of all Government servants vho should not vote for him. or who should vote against him. The evidence showed that, though m the heat of debate, and when irritated by one U., he used strong lanuuage, there was no foundation for the corrupt charge ; and as it should not have been made, the costs in respect of the same were given to the respondent against the petitioner. About an hour after a meeting of a few friends of the re8))ondent at a tavern, one of their number was sent some distance to buy oysters for their own refreshment, of which the parties and othera partook. The foUowinc day a friend of the respondent treated at a tavern, and not having change, the respondent gave hiin 25 cents to pay for the treat. HHd not to be corrupt treating, nor a violation of 36 Vic, c. 2, s. 2. Where the evidence as to the offer of biil)es was contradictory, and the parties making charges of bribery appeared to have borne indifferent characters : Hehl, that the offer of bribes was not satisfactorily established. The delegates to a pcilitical convention assembled for the purpose of selecting a candidate, who never had intercoui-se with the cwididate selected, and who never canvassed in his behalf, cannot be considered as agents for such candidate. The respondent gave to one H. some canvassing books, with directions to put them into good hands to be selected by him for canvassing. H. gave one of the books to B , a tavern-keeper, and B. canvassed for the respondent. B. was found guilty of a corrupt practice in keeping that part of Ins tavern wherein liquors were kept in store, so open that persons could and did enter the store-room and drink spirituous liquors there during polling hours on the day of election. Held, that H. was specially authorized by the respondent to appoint sub-agents, and had under such authority appointefl B. as a sub agent, and that the corrupt practices committed by B. as such sub-agent of the respondent avoided the election. IHH PROVINCIAL ELECTIONS. [a.d ''^^^^P^cl^fZi^i^^^^^^^^^ °^ n« petition and trial. wlnA costs were to b^Jak by neSwolr flT' "^ ^^^Ppn^ent, pait o part, each party was onVeredToCar Ws own '""^P^'^^^nt , and as to Jl^e^petition contained the usual " charges of corrupt ^^r Ja.es A. Miller and Mr. Peter MeCartky for peti- i^^:..to^nt ""''''"' ""' ''' ""'"^^^''^^ - ^--- for spomtent and his agents is set forth in the iudcrment avvvNNE, J.-At the close of the evidenc taCn this matter the counsel for the petitioner rested his "s upon a? WhT" "'f /.'^ ^^^^P«"^'-^ ^^^-'^' belL feci n his Cch rr .'•^^'!-^l-«- by himself personally on the w!, \n "","""^*^«"- *« '^ Government servant^ on the Uelland Canal; (2) upon the ground of treating ommencmg at the oyster supper a! WhitemanV 1 upon the ground of bribes offered'as is alleged To Harper IS intended, was an agent of the respondent- (4) unon Zizi:^'''' ^f "^"^^ '''^-' ^ ^- ^ien rr cisea by one Hagar, who, as is contended was an aapnf nf that hB would it^ hi, employment m bridge-lendeHt In 1 «; o '.Tv-""'"'"": """"'*'' ™ ™'"- of «-"l r , a, 1 T , ' '^''- "• ''^ ""^ ^"""'■- Boardman, who, whltT.t ' ™ "? '«"" "' *« '^Pondent, and for whose act the respondent is to be held responsib e oir^ "b" r"'"^^ • ■"'-^' ^'" LT. A ;■ """ '"' "'"' W<*" to be an honest eonfl,ct of testimony a, to the existence of these mZr! wh,eh constitute the offence charged, or if ^Z "2" ^^ [a.d a petition and trial, resppndent, part of spondent ; and as to I'ges of corrupt ■arthy for peti- U in person, for against the re- judgment. e taken in this 1 his case upon Id be unseated, self personally inient servants d of treating, liteman's; (3) ed, to Harper, Hems, who, as Jnt; (4) upon ve been exer- is an agent of amuel Fraser ige-tender at )ondent; and on of sees. 61 irdman, who, lent, and for isible. '■ imposed by- Id feel well ce, that the Jnsequences, le an honest ese matters lese matters 189 ^875.] WELLAND. consist of acts or language which are reasonably suscep- tible of two interpretations, one innocent and the other culpable, a very grave responsibility is imposed upon the Judge to take care that he shall not adopt the culpable interpretation unless, after the most careful considera- tion he is able to give to the matter in hand, his mind is convinced that, in view of all the circumstances, it is the only one which the evidence warrants his adopting as the tnie one. Now, as to the first of the above charges, namely, intimidation in the respondent's .speech at the nomina- tion, it is to be observed that it is difficult to believe that it could have entered into the mind of any man of ordinaiy intelligence— not to say of a gentleman of the legal profession and of considerable experience in public life— at the nomination, in the presence as well of his opponent and of his friends, as in the presence of Im own friends, to threaten that he would procure the removal of all the Government servants at the canal who should not vote for him or who should vote against him ; and it seems quite incredible that if such a threat had been made in such a presence, that the utterer should not have been instantly called to account Jiagrantc delicto. But there is abundance of evidence by reason of which I have no difficulty in arriving at the conclusion that, although in the heat of debate, and under the irritation caused perhaps by the manner in which the respondent was in- terrupted by the witness Upper, he may have made use of some language which had better have been left unused, there is no foundation for the corrupt charge, namely, of intimidation, which has been made against him ; and I am of opinion that this charge should not have been made, and I shall therefore direct that so much of the costs of the petition and trial as relates to this charge shall be paid by the petitioner to the respondent. As to the second charge, involved in what is contended to be corrupt treating, by reason of the oyster supper at Whiteman's tavern, and of the treating which took place 190 PHOVIXCIAL ELECTIOXS. , ,, [a.d. at the .same tavern nn fV... v n upon the evuleneeVnVs fil "'"^' ''''' ' "" "^ '>P"-» "-ti„„. which ha,i "1 hd" 1^^^^^^^ ?""• ."^ ^'^«^' *'-^ ^l- l-efore the oyster sunn "w ^^^\*'^'"^" « ^^out an hour tlH^ respondent, an U ' Z^ "T*'"^ '^^ ^ '"^' ^"'^"'^■^ «*' '•usines,; they n.a, ha e h! , "'T^ '^"^"'^"^^-^ -'^^^^ quarters of an hour to In 'V""u' ""'' '^^^'^"^ *hree- -^. the, for the^o rr j :i^^^^^^^^ ^'^ ^^ «- -et- nun.ber to go to Port ^T "^^ P'-««»'-^^' one of their w«on.eo;ters,:^:,^^ri:::;:^::;r^^^^^ own expense or nf ih "'^*^"P'^ocured,were at their wo persons „.,,o |„j fo^eri" w*?"" ""' "'' I'-^'P" to be Wen* „f the rem 1, - > "'"" """ '«^"=™l »uol,, l,„e who in hi elS™ 'r '"^ *'" P"^'™' " '.« Wen.,,, partook of hi" . ^™f fP™™'' ™' '» be others who supplied the,,, r ° ""* '"'P™"» »f the on the ro«„.^„:- a:;r rr rhi^. t: ^v-^ I"-tiee when me tint' ht frTend: TT " "' ">"""' the tavern and th,t T ' "^* '™"* »' "l™ at «.t. did in re respld't"''""""' ' '"""" "' *<> "'P^d- own, and not raWn" ™ V Car,! "•™' ° '™"^ "' •"" receive from the re p°o„St 7- ! ?«" "'""' '""■■ '>''> Now, whether or ^ot these Lf "" ' '"/'^ '"'■ *-' "«• with the eo,Tupt "It 0, ntl.°" '"'' ."""" "'" """"^ question of facftordit '."''"«>'='"S the eleetion, is a ^tanees diseitV n the ^S Th"^7 *" *^ "™- Justice Blackburn in the a J '""S^S" °' Mr. is the „„st apprpre';*":?';: to,M- »^ H. ^»> to adopt it in leadincr ^.Tf , • ' ^ hesitate not of the'case. I^I s2 • < t' ;"'^'."""" "P^'^ *^'« P-^t treating and whit is no/ '^'""» ^^** '« ««'™pt commoLsenseof thrtht^Tr'-'''' ^^'^"^ ^* *'« tiie thing. There IS an old legal maxim 1875.] WELLAND. 191 Liter apiecs Juris mmnm uyurin. To go by the strict letter of the law often would produce very grave wrong If I was to say that an election was void upon a single case of thaMort, vve should be going to the npices Jnns, and the result would be summa injuria; therefore, the inc.uiry must be as to the extent and amount of such cases " To hold such an amount of treating as is relied upon in this ease, and given under the circumstances appearing in the evidence, to bo corruptly given with the intent of inHuenc- mg the election, would be well calculated, as it appears to me, to bring a most wholesome law into contempt I must therefore hold that this charge is not established. As to the charge involved in the third of the above heads of complaint : Harper, whose story has in it some particulars which appear to be improbable, and who l>v his own account is not a pei-son of the most incorrupt integrity, is Hatly contradicted by Hellems, the person whom he accuses of offering to him the bribe which he says was offered to him ; Brown is contradicted not only by Hellems but also by another witness; and Archer i"s contradicted by Hellems and also by three or four other witnesses. In view of these contradictions, and of the in- different characters which appear to be borne by the persons making these charges, I cannot arrive at any other conclusion than that it is not established to mV satisfaction that the bribes which these witnesses allege to have been offered to them respectively by Hellems were m fact ever offered to them ; so that it becomes un- necessary to inquire how far the fact of Hellems havinc. been upon one or two occasions, or periiaps oftener specially requested by the respondent to attend at public mee ings ot the electors for him and in his stead, and to address the meetings on his behalf, would constitute him an agent tor all those acts done to promote the respondent's election, and would render the respondent responsible. As to the fourth charge. Samuel Fraser and his wife who make the charge, are contradicted by Hagar, the person against whom it is made. There is no evidence lf)2 PROVINCIAL ELECTION'S. [a.d. fonvar.) *„ „„«„!!; „ ""■ ""^"'i"" "hid, p„t i-ty. He .i«7:„"t, ' :.■ t r"t'' °'' "^ «»''- '")ok containing the naL, nf T. ^''""' ^ canvassing WelJand appears to^aT.l 1 '"'''" '" *^^ ^«^'" o^ '■^ ''id get into htpJsilr^"'^ ^-- .listinctly swore thit hen T "''' ^PP*^*'"' ^"^ ^^ although'the re^t ent w::;:;t '"VT '' '' ^^-' Association as the canrLvJ t^u '^^''^ ^'•'' ^^'^ ^^^^nu accepted the non, S^ar/ ^ t^^^^^^^^^^^ forward by a political «'« ? ^'' * candidate put '"en.hers of the 1 ^cttf '' ^^ ""^^ '"^ ^^'*' ^'^^^ ^^e t'-eir hands wL Z t :; ^^'r^.^^ ^^^^^^ benefits of their or Jni J . '''°^ ^""'^^'^ «f the individual melTo trA f *'^ ^'^'"^"^^ ^^ *^« i'is agents, for wh^e actf h/sl^uTd '^ " ^^ ^f ^ *'^'" appears to me that it Jl,! ^''"^^.'^" ^««P«n«^'Je. still it to hold that ever, d Igat! to a' '""^ ''*°^^'^"'' ^^'^ *'- the purpose n^ere/of fel ct L' T" ^r '"""'^^^^ ^- never had anv intercomt d^ .^ ''"^'^^*'' "'"^^^^^ he candidate, and although he doT '." "'""^"^ "^^'^ ^^e in any instance or canltdr his^bS 'T'-'"''' sole particular case wh.VK u , "' "'"'^^'^^ »» the avoiding the elecL • '' ^^"^''^ ""^ ''^^''^ "?«« in to mak:hi.n spSb ZT' f ''^ ^^'^^^^^^^ ^ - could be so held.r:o /lt\lS^^^^^^ 1 " ^^ nomination of the randid„r i , ^5**^ ^PPosed to the to defeat his etctZ W ! T' '^ *'^ ^^^^^^^ niitted for the I.T ^ ''''^^^ '^'^ «^ hribeiy com- InshorMntrre^hT'^l"^^^^^^^^^ by the candidat "Led bHh!" 1 *'^ '^^'"^"^^^- effect of constitutinfeverrm r""-^'r"^'^^^«*^« n« every member of the convention, ''''' [A.D. a single vote, unless makes the chai-ge it lie canvassed Jiim ve been one of the k'ention vvhicJi put ate of the Reform >een spoken to by ictly or indirectlj- 'iiii. A canvassing ers in the town of Msession, but how 5t appear, and he y use of it. Now, I'd by the Reform' y, and although he a candidate put ■ so deal with the > place himself in ? himself of the J influence of the as to make them ^sponsible, still it •together too far 5n assembled for ate, although he lirectly with the ar to have acted f. unless in the relied upon in tJandidate, so as ained of. If it ' opposed to the e majority, able f bribery com- ig the election, he nomination i^ould have the iie convention, 1875.] WELLAND. 19:; whether a Mupport..r or opposed to the nomination, of the candi.late selected, his agent, for whose acts the can- di.late wouhl be responsible. Such a result would be repugnant to the plainest principles of justice. I cannot therefore, upon the evidence in this ca.se, arrive at the' conclusion that Hagar was an agent of the respondent tor whose acts he should be held responsible to the avoid- ance of the election, even though it should be true that Hagar did commit the ottence of which Fra.ser and his wife accuse him, as to which I do not, for this imson. think it necessary to express an opinion. There remains to be considered the fiftl- .n-ound of complaint, for the consideration of which I res°erved my judgment. That Luther Boardman 1ms been cruilty of corrupt practices, and has thereby expose.1 himself not only to the penalty imposed by sec. 66 of S'2 Vic cap. 2, but alr.0 to the disqualifications enacted by sec' 49 of 34 Vic, cap. 3, there can be no doubt. 'Upon the facts disclosed in evidence, and notwithstanding his own statement to the effect that he cautioned people against going into the open store-room in rear of his shop and tavern, where the liquors to supply the tavern were kept, I can come to no other conclusion than that he, being a tavern-keeper, did, at the very spot where the poll in the township of Crowlana was being taken and during the polling hours, keep that part of his tavern wherein his liquors were kept in store so open that all peraons attending the poll for the purpose of votin.. could and did, at their free will ^nd pleasure, enter the room and drink spirituous liquors there kept, and I have no difficulty m determining that this store-room was kept accessible in the mannei- in which it was, in order that the persons attending the poll might so enter it and supply themselves with drink at their plea,sure. If .such conduct as is here brought home to Boardman were not pronounce•■ »t"'lH..I m i„,.l„i,.tv, t„ vojfo .1, r ''■*" '"'«'" '" ia.«.. .■.„„..„;;■:: i":::Trt:r *- "-"" "■•• J., iu ti,„ r,„,»l„ „„, .,0 It N s " ,'; ',""' ^«"'-' I «-.ml.l a,l,l tl.nf unless tl„. „.l, I ' '"">' '"•■' »"•! tht.p„rp,,sc.„fpro " ," '' ^'"""'"^ Actpa«d fo,- wopo Of the authority .-iven or l„Z T . ^•™"'' "'" most «pre,s i,>j„„etfo;:^ " ' ' '" "°''"''"' "' *« .-pondUe. he ,„„,t l« p™ve,I ^ha^T ,""' "■°"'" >* an .uthorizi.,1 a-ent P,„n o ' ''^ li"i«el(orby in B„ardn,an\ a„< s o hav ' ". "«'"'■ ""' "'"'^'^ him, or have p^ feith t , 'r"'°" """^ ""'> »-^«- [A.D. ttt-'fl to inHuuncean.l widtvl electors who ling their V(»te.s, un- they shall vote or and who, knowing tlTftites for intoxi- ^g the entire day, I- senses might be tndidato known to I'. vhether or not the 'ther he can claim •ardman's corrupt 8 or is not to he so as to make the i))er. ;ion petitions has ^Iges to be quite >mon relation of is said by Grove, J7. "may be, and ' Act passed for 3s at elections be e for the acts of are beyond the violation of the >n, to establish ident would be ' himself or by to act on his either through It, put himself >on cause with availed him- 'tly done by a 'he election, or hini without 1875.] WELLAND. 195 repudiation. In the Bfrnllo/ erne (1 O'M & H 18^ Blackburn, J., has held that an agent made the oan.lidate responsible for the acts of a sub-agent as well as the agent even though the can.li.late did not know and was not- brought into personal contact with the sub-agent. I procee.l now to con.si.ler the evidence upo"n which the (juestion m this ca.se turns. I I*^PP«ars that a convention of an a.s.sociation called the Reform Association, was called for the purpose of nominating a candidate in the Reform interest. To the convention each municipality in the electoral division elected eight delegates, which eight delegates were in the habit of acting (with one of their number as chairman) as local branches or committees of the Reform Association in then- respective municipalities. • The convention of delegates so constituted nominated the respondent as the candidate to stand in the Reform interest. The respondent had been put forward in like manner upon former occa- sions. ^ Mr. Price, Reeve of Welland, himself a member of the convention, says that the committees of the Reform As- sociation ahvays acted for the Reform candidate; that it had always been understood that they were to act for the had stood for the oounty in former elections, and that wwri ""'", '" '^'" '" ^^P"*"^*^ *^««« committee.s. It f W M T^" ^""^'^ ^"'" '^' ^"^"^^*'^' although he says that Mr. Cume never attended the committee meet- ings. In former elections a central committee of the etcZ ^.Tf ^'" "'''^ "^ '"'^*' ^"* ^«"^ -''' «t this election ; but he was not aware of any reason why there wa^ no meeting of a central committee on this election. The custom had been on former occasions for the members mittees for Mr. Cume to promote his election, and re- ports were made from the local committees to the Cent.al Reform Committee. U 1U6 PROVINCIAL ELECTIONS. fA.D. I.A.U. John H(.n.lor.son, Reevo of CrowUiu.) „ witnoHs, who gave his / ^ ' ' " . "^t mspectahle 'li'« not wish an7c r T '""' '''^" ''^^^''^'f "'«' he waschainuanof tl>e n .r ' .'^ ^'i;;etio„. say.s that he for the township o;^(;:;:;:rTht'::r'^ of eight, including, hin.self we.t «I i' '""""*'"^' the convention which no^lLl^M r^ .t : .r^ '" a warm .suppo.,..,- of Mr. Currie on f"''*'* . Upon this election he was .m „, '■""-''■ ^''^'ction.s. for Mr. Currie L.l tTat ''.r^^'''^*'''' '^"'^ forked wrote to hi.n ;;piin a ^ i" .'"/""• ""'■ ^^""-' for the townshlp'rcX't^^^ ''"'""•^ '"^ '"^ '-"'' l.i.s friends to Lrn oXl ^Z jr'"^' ''"" *^^ ^'^^ Currie himself ran.pV-. .) *''''' '"feting. Mr. To.„ H.nr;irw„ : t rsT^B ' r '-" '■■ "■- where he wa, ntayi,,. ,,„ ,"';''"»»' B<»'-'l'nanH tavern, va.,in« book,, wit'h fhrna" : 'l- TZ '" "• " =""• each, made up by Mr 0,„-,.:„ i • ,7. '"'''' P""'"' in li.*, which he cuunto rrat'l':: r" f'"""'' ^■"'-•'' book,,. Henderson «„., we^-e "^ . '" ''°°'"- The»e t" P»t "into «oo:r\'andrt!'rii:,'T*h-"-™ canvassing." He does nnf u «e'ected l,y hini for that he wL chaiLir hrt^Xf If;; r^ ^- had canvassed before for hin, tI . f ^««"''^'™) distributed among the other ". ,^^''^\. '^ ^s Henderson mitteeof the to^nshirand 7 '* *^'^' ^'^"^«''" ^'-•«- not. however, a n.::^ X^Z^;:^' ^^^^r"'^"' was that all were to renn.-^ f 1. """'-^- The mtention the central commttLortleR!f"'T'' '' '''''' --k to nation day. but the bt^tsf r'th ^""'^""'^ ^" "-"- protracted that the centmT . *^.l"^'"'»«tion was so When Mr. Currie give tt , r"^*t' ^^^* "«t n.eet. they contained thefol rs iL ^^^ «^"^--' ^e said the parties would go " L . ^ ' ""'f ^^'"^ ^^ ««« how in the school section whe " TT 'n ^".^^' ^^™- Wore the polli, g dav th.I * ^"^ *^^ ®^*"rdav P " g day there was a meeting of the com'- ^N8- [A.D. oardman's tavern, less 10 or 12 can- voters printed in >'» printed voters' in hooks. These im l,y Mr. Currie ted hy him for ^1'- Currie kneM' ' he (Henderson) 'ooks Henderson ■he Reform Com- ^e to Boardman, The intention •f their work to siation on nomi- lination was so did not meet, iderson, he said ^'ere to see how only canvasser » the Saturday g of the com*- 1875.] WELLAND. 197 I inittee of eight and a few others at Boanhnan'.s. Board- ...an huuHo f was there, and he. as well as others, n.ude a .vturn of the re.sult of his canva.ss. and stated that there woul.l l,e a large majority for Mr. Currie in his section He ma.le a retuin showing a good majority. At this meetmg arrangements were n.adeas to bringing up voters to the poll early on the Monday, and on the Sunday Henderson gave Mr. Currie a general return of the result ot the canvass of the township. Boanlmaa. as Mr Henderson .says, was expected to work like any other Reformer. Boardn.an did not .say he woul.l attend to ..mgmg up voters, hut he .saw Henderson on the Satunlav before polling day, and told him that all was right Mr Currie him,self .says that although he appointed no com^ liuttee specially to act for him, he did ask .some of his tnends to work for him. He .says that he sent the can- va.ssing books in parcels to his friends in the different municipalities. He knew that Henderson was workincr tor him. and in that capacity he gave him the books, not as chairman of any committee. He thought the books would be ot service to his friends, and he gave them to Henderson at Boardinan's to enable them to advance the canvass tor him, and to let them see who the voters were He lett the election, he says, to his friends, and Henderson had been a friend of his for three yeaiu He appointed Lit n"'.^*, "'/'"' P°"^"^' P^^«^«= *h« re't were appointed by the local committees in the re,spective muni- cipalities. The committee of which John Henderson was chairman appointed James Henderson, Johns brother •scrutineer for the poll in the township of Crowland, held where Boardman re.sided.and on the Sunday before the poll- mg day John informed the respondent of his appointment and he approved of it. The respondent .says that he him- 'f despatched the posters for meetings by mail or parcel Wst. and Boardman .says that the posters for the meeting at Crowland came to his address. Boardman, in the course ot his canvas.s, ascertained that a Mr. Brough, althou.rh a fnend of Mr. Currie'.s, was cro,ss about some slight, ^d he 198 PROVINCIAL EI,EtTI,.Ns. [a.d. '"^"•'-' t<. hi.„ f., ,, ; 3,^ '•' '«;•«; ;vl.ieh h.. ha.| was -'XH.I s,.cti..n in whic I :;' •" l'^ — -•>« tl... -"' a'tl..,„,,h he ,Ii., l,e ^"^ '" ^'''' ^'"••••i"'^ '-i.alt, section. I.C ca„vaHH...I all u' T''''' *f" **>"'"«'' tho •^"•J «''"P. an,l „.a.lc. a TT ^''" '"'"^ *« < ''« ^'' ^ -m Hen,U...,son of the relu,! ''^^ ""''''' '^ '"*»"> *« Air. canvas, an, 1 act in th. .s ! " '.''"T'"^'^ ""''-• hin. to *h«t fu. ,li,l „j •„, Boani ' '"'••'••"*^- reappears upon the whole' I .„::;:;" r; -^'' -'-agent/an.!. ^vi.Ionee I can arrive at n *^' "-^ ''^'^^ "I"'" thi. «"eh a ,h^ree of assistance w! "r'"'^'«" ^''an that - virtue of the selectio: j;:/;;';;'^'-^ '^V Boanhnan P-'-'n.towho.ntheinteressof h "'" ^'•"•^t^^'o'-tlH' «<'-! hy John Hen,Jerson in ' '•^^P""''^->fc More con- b^'half vest.! in hin.Tv ;;\''"" ^V''^ P-- - that ^Pon.lent n.usfcahi,le the contn "'"''"'• "^'^^ *^« '"- for the nmlpractices of fir' '"'" ''"'' I'^' n-sponsihle P-tice,s weL co.rn-lf 't ;r-'^'^7^t ^"^•" -'■ «r consent. The ;inl section It' "'' '"'""'^"'^'« respect is very explicit an,] v "■■• ''"P" - in that ^'uty. in accordance with the Z^lT^T"^- ''y P'^-f"^ oi the evidence, i. therefore to!? *"'' '^^'"P^"^^' to take '•-Pondent to have b 1 V^'r "" ^^^^"«" «^ ^^^^ reason of corrupt practiest^^.^T',''"^ ^''^^^' ^'^ man, an agent of the rP.spon.J.n. ' !u ^ '"'^"'''' ^''*'■•'- election, but which corrunt n V ^' P'-^^^otion of his the said Luther BoaXan wil ^l ""^ ^"""""-» V or consent of the respondenl ''' '^'"'^ '^^^"'^^^ge I do further order thnf tu petitioner the e«t» „f ^ * , 2™"™' i'" W to the »» mueh of said costs ^21 "^f "" ""'' '"«'• ««Pt «=! fourth head, of cl2r f *" *= *»"''■ 'Wrd, -nt e„„„,erated, a, .rSr ,*- "" ,*'» -"y J-C,- several heads of complaint ■i On. wliich hi. hft.| was i'* t'anvassin/? tl.. ••• Currie's }»-],(iU. go th/ough the ■n»f to iUetn\i'fn » '"turn to Mr. "nd a .loul.t that pondt-nt, and one Its undtT him to ^^'^t It appeal's ■snl)-a^t.nt, an.l, that upon thi.w >«ion than that rl '>y Boarrhnnn * a trustworthy idfjit Were con- i power in tJiat . that the re- l)e responsible 'fe'h «uch nial- iftl knowledge ftp- 2, in that y- % painful ipelled to take lection of the iind void, Uy 'dtiwr Board- iiotion of his onmiitted hy d knowledfe ^ pay to the trial, except econd, third, '■^ 'nyjudg- 'i' complaint 1875.] m SHELL. ino I do o,der that each party do l.ar and pay his ownco.t«. and e.xoept also so nnu-h uf the said costs as .elate V the h rst head ot con.plan.t h.-rein above onun.erated, tl.. costs ot wh.ch I do order that the petitioner do pay to tl c res|x)ndent. * "^ With his certiHcate to the Speaker of the result of the nal. the learned Judge reported that Luther Boar.ln.an us p.oved to have bee,, guilty of co.-n.pt prartices, in tl s. that be,..g a tave,n-keeper and as such aith.-i.ed to .S.II .sp,r.tuous and fern.ented li.iuors, he the said .uther Boa,dman d.d .n v.olation of the p.-ovi^ion of the statute u tha behalt, keep open his sai.l taven. during'the ours ot polhng on the day of the election; an.l that he. i ..i„g an agent ot the .saulJamesUeorge Cunie, did give, fu. .ish and supply, at a n.eeting of electo.-s assen.bled for ther.ur- po..e ot vot,ng at one of the polling places at which votes yre polled m the township of Crowland. at the «a.d election spirituous and fern.ented lic,uo.-s during the houi^ m which he poll w.s being taken at the stid poll ng place, to all such persons, electors and others, as werf de.sirous o partaking of such spirituous and fermented liquors, and many of who... did partake thereof. (9 Jmmuxl Legis. Asscm., 187,5-6, p. '>.) RUSSELL. Before Chancellor Spkagge. L'Orj.kval, 3rd ami 4th June, 1875 Robert Ooilvie ct al, PctitioMrs, v. Adam Jacob Baker. Respondent. %l^iT:::^t?Jt:ZfZ''!^ '^ ^'"^ ".^P^^^^-*- -^ requested to fl /. kept l,rta\"er?ope;*o.r JC'^dat***IJ^P"'" °" P""^« treated there .lurinjr DolliL {^m,« P?- ^ ??y' *"** various personi theevidericeofS^v fall h»rIH». "•"''' ^"5 *^^ respondent, after ajjent of the respondeat Ind that IV.T''' "^""'^^ *'"'* ^- ^»« "»> election. ' ^ *"** "'* ^'^^ ^ere sufficient to avoid the 200 PROVINCIAL ELECTION^ giving^*^^^^^^^^^^ a^ljudicate that the resnnnH . . film an a^ent for allSZ it V^^.T* * ^''^'t'^eer^XSjl I.''? tice ih keeping his'L?,!^*'^ "««"*. had been truiltv of ! practice a/oi/ec!"t^h?e7e?ti„r "" P''"-« ^'^^ a^fh^tTZX^, The petition contained tha , i , practices. "^ *^^ "«"al charges of corrupt f-'^^-^^^ for petitioner Mr. John O'Connor Or fr. ' «wr, (^.o.^ for respondent. I he evidence of th election was avoided wLrfX::"""^ on which the Michael Fouhert : I keen « fa , -y place on the SundaX^r T™ , f " ^^'^^^ "^ ^^ authority to appoint an agent fofh 'T' ^' ^'^"^ '"^ the Sunday and told me^t 1 . ' ^""^ ^^^^ '"^ ^^^ on Antoine Lamotte and a^ked IZ f f^ ^^'"^ ^ «^"* ^^r at the poll for Mr. Baker and ^ 1 1 ' T^^' "^^ ^« ^^^^t all right. The pollintpWe J """"^^^ ^^^ ^^^^^ ^t was from .y tavern' I^' t^^^et b1^^^ place during the polling day I ^tf f ^ '">" ^' "^^ during the day I think R- J Z ^^""^ ^'^^ forward and I think ToilferdtJtf^ remember anybody ele T \ ''"""^ *^<^ ^^>^- ^ don't treated or not, but I may have done 7'"'" "'^^'^^^ ^ Michael McArdle: Was at 9f T t"- ingday. Was at Fouberr n tb ^ ' ^"^"^'e «" Po"" there; this was between "nd/o'o'TT'" T '"'^'^^ several treats. Foubert tlV t"^' ^^^'^ ^^^re he treated; seven or etbtTl^rii;:^ ^^ ^--^'^at agent of the respondent, were s^ffi' ! T''"^"^' ^^« ^^ t^on, and he offered to dolo th. ^^ """^^' ^^^ ^lee- to explain the personal chief "P^"'^"* *^ ^^ -"-» ^^^-..^.rr accepted this proposition. 'TIONg^ [A.D. icate that the respondent, by a scrutineer, had constituted praciceoftheCourttofcakl unguilty of a corrupt prac- day, and that such cofrapt il charges of corrupt ident. ctices on which the Mr. Baker was at lection. He gave me '. and gave me $5 on 'y him. I sent for would act as agent ■ould see that it was fc three or four acres ^aker being at my back and forward . I, Robillard treated, the day. I don't tiember whether I 's Village on poll- ing ; was treated Mk. There were ' not know that -ought out in the admitted was an 'o avoid the elec- lent to be called 1875.J RUSSELL. 201 The respondent was then called, and after denying the charges of personal bribery adduced in evidence against him, stated as to treating : " My general habit as to treat- mg is • rather free.' I seldom have entered a tavern and left without treating The custom of the country is to treat freely at taverns, and I followed out my usual custom." Spragge, G, said that the evidence had established cor- rupt practices by an agent, but that no personal charges agamst the respondent were proven. He had no reason to believe that bribery or corrupt practices had extensively prevailed throughout the constituencv. With regard to the agency of the man Foubert. he held that he had acted in gross violation of the law. He did not adjudicate that the respondent, having left $5 with Foubert to engage a scrutmeer for the polling day, had constituted him an agent for all purposes, but simply as an agent for that particular purpose ; but as it was the practice of the Court to take the admissions of counsel in proof of agency, he felt warranted in taking the admission now made by the respondent's counsel. Foubert being guilty of the corrupt practice of keeping his house open on polling day was sufficient to void the election. The practice on former occasions was to manage the elections through the agency of third persons, and many instances were on record of very corrupt practices by agents. It was to meet this end that the law was made as stringent as it is, because it was manifest that unless the candidates themselves ^/ere held responsible for the acts of their agents, there would be very corrupt practices in the elections. He thought the law was a very necessary one to meet that evil. As to the treating in this case, he did not think that it had been brought home to the respondent within the meaning of the law. He might say that a practice more demoralizing than the system of treating in vogue could scarcely exist. It was a pity, he thought, that public 202 PROVINCIAL ELECTIONS. [a.d. sentiment runs the vvav it does A tavern, and it seems to'hp pv 1 , '"*" &««« ^"^0 a of course that he shouW^i.^Stt '' 'T " ^ '"^"- persons were there present «n "P"'*' ^^ whatever consideredofaxneanLd„?Crl"t" '^ '''^^ «« ^^ - sequence was the verv vvif ^^''P'^^*^?"- ^he con- There was not a case^ST^'r" '' ^"*-»P-a"ce. this evil had not Wd ittjf uT r "' '"" ^'^ ^'^^^ was one which prevailed in In T •" ***'"*^«'^' ^"d it He thought the pe 1,^ "" P^''*'^ f ^^e country alike, a-^d to his mind satSSol T ^^'^ ^«^" ^^P^^ined, and honest «nanner. trLr^' T'' " ^'^ ^'^^^""-"s that they could not be p7e "sedan . ''^'^ ^ ^'7 properly oi the respondent. He cTuW nTv" ^"^ ^^'"' *^« ^^^^ence *he denial that thes7pe"l7 ^^^ ^'^'^^ - H« did not .say that tlfe denkl 0^?^ ^'"^ ^■^^^'^^^^^ed. would have relieved the Courl f " ^P^'^'^^^* ^^««« adjudicating on th. personal chl^ T *^^ "^^^^^^^y of weight was due to the resno ' ?''' ^' ^'''' ^^ "^"^^^ of the charges as to tl eSt '^ ^T^'^^^^^ of the denial to himself satisfactory hattrBrr^^ ^'^^ ^* -- ■so thoroughly ft.om L per^o^atcr '' ^^^^^ ^""^^^ '«ade against him. These 0^" , ?'^'' *^^* ^^d been not give effect to except on £? , '''>^^'' *^^ ^^^^ did and certainly in this ea^e ^^^^^ adduced. Therefore it onlv? "-"'''''' ''"^ "ot been Speakerthattheelec^i^wt rt-th "^"^^ '^ ''^ they would follow the event '"^^^'"'^ *o costs, -as p,.ved to have be™ X j ' " f'"''"^' ^""l*'' said election ° ■' "' "°'™P' Practice at the "'■^''"""'''''■^«^«,1875.e,p.6., [A.D. TIONS. A man goes into a 'd of him as a matter It spirits to whatever iless he does so lie is disposition. The con- evil of intemperance, before him in which his attention, and it of the country alike, had been explained, ^ed, in an ingenuous : '^^^'^ ^ 3ry properly '"' after the evidence 'found in the face of es were established. >e respondent alone 1 the necessity of 'ut at least as much idenee of the denial »st him, and it was had purged himself ges that had been ■rges the Court did isfactory evidence, ice had not been to certify to the th regard to costs, the result of the Michael Foubert ?t practice at the ' 1^75.6, p. 6.) 1875.] CORNWALL. CORNWALL. •203 Before Chancellor Spragge. CoEN'VALL, 81A June, 1875. John Goodall Snetzinger, Petitioner, v. Alexander Fraser McIntyre, Respondent. Briber;/ hy an A gent— A dmksion of Comsfll. ^ r °^n' Jli'' had been frequently fined for drunkenness was canvassed by C. to vote for the respondent, and was asked by him " how much of ^°pTlfS^*v!'t?uP°"'??"' admitted that C. was an agent of the respond- ent, and that the evidence was sufficient to avoid the election ^ ^agentl tt res^ptXr ^"' "" "'"'""* °^ '^"^'•"P* P^^*-- ">' - rSLe^^^^^^" contained the usual charges of corrupt Mr. R A. Harrison, Q.C.. Mr. D. B. Maclennan, and Mr. Chislwlm, for petitioner. Mr. J. K. Kerr, and the Hespondent in lyei'son for respondent. ' The evidence given at the trial was as follows : Miefmel Loo : I am an elector of the district, and voted at the late election. I was asked to vote for McIntyre by Robert Conroy the evening before the polling day That was the first time he saw me about my vote There was another man present at the time. He saw me in my own house. I believe Dr. Allen occupies the position of i'ohce Magistrate, and I know him. I had been fined several times by him. I paid my fines before the election. 1 did not like it at all. I paid upwards of S5100 in fines and I suppose it was well known. Conroy and I talked of It that night. I was in bed when he came, and not ieelmg well. I told my son to get up and see who was there. I was called to come down-staii-s, and .saw Conroy and another man talking to my son. Conroy produced a boitle of whiskey. I refused to drink that night, though they told me to take hold and drink some. Thev urged IJI 204 PROVINCIAL ELECTIONS. [a.d. Pa%. ItoldhirnulnZVy ""''^ '^' ^'^^'y^- was not made up. He saidVTl T ^°''^^^' ^ "^^ >"ind . to vote. I told him I rl n rJ "'"^ '^^^ ^^^« ^-ng He asked me what thev T , ''"^ ""*" *^« "^o'^ing and I spoke of thetLtv^lr ''. ^^^ "^ ^^^^^^ ^^- I -id that that coLTyladt^ T '"^ '^ *^^ «-«' of me for me now to suLrt th V'" '""^'^ ™«y out fovv much of that rn?;?lt^ tVtt' ^^^^ ^ town until the election was over j toM h r '"' '''^' rny country yet dishonestly L r u "" ^ "'^^" ^'^^ He replied, Don't vote to ^' '^''"^^ '^^'^ ^" «« now. -e,and then bid metod 2hr"/''''"* ^^"^"^ *« -« ti^nes too fond of whiskev ^ P "'"' ^^^ ^ ^^ «««« ' this town., I was fin d for drinT"^ '' I ^otel-keeper in not say whether he had In . "^ '"'^''^^y- ^e did not leave town, nor did I ^^^^7 7 «-• I did was the only time he was with L" '''''• ^^'^ Gross-cxaminecl : No mnn^,r -"• by any one else. I ZkVS fn '° "" ''^ °™"y return me some of the «„„ „ """ O^nroy promised to 'o™. I do not beW tn . ™"'''"°" °* -"y '«vW about twenty yea3e ^ '"'t'r'"- '^'^^ ' ""^ Marel. a year a^.o »d t '"'• ' ■>•"" "™e sufficient to void the eleet Ln .71™'' '"' ''"''ence -Ma^reetohavethirtLtilll*:/--^- ^'■a.rmmafjreedtothis. airtT;o™;r;v*e!:'K """ "^ **>«' ™m »» --.,„or4.!:;r;!;rrCiX":d^-- 'IONS. [a.d. ifusal. ,My son drank e with the Mclntyre rx answer, as my mind now how l^was going >w until the morning, put me against them, •om me by the fines, too much money out fe replied, asking me ake back and leave 'Old him I never left ould not do so now. thout coming to see ^nt off. I am some 's a hotel-keeper in whiskey. He did y my fines. I did ore I voted. That 1 to me by Conroy mroy promised to ion of my leaving lar place. I lived ve lived here sii. a ;irae been fined to lave been drunk ■ver I can get it an agent of the ed this evidence ' the respondent I void. iclared void on but not by the ledge and con- 1875.] DUNDAS. 205 i sent. I shall report that corrupt practices were not proved before me to have extensively prevailed in the election. With his certificate to the Speaker of the result of the trial, the lekrned Judge reported that Robert Conroy was proved to have been guilty of corrupt practices at the said election. (9 Journal Legis. Assetn., 1875-6, p. 6.) DUNDAS. Before Chancellor Spragge. MORRISBURG, 14th, loth and mh June, 1S75. Simon S. Cook, Petitioner, v. Andrew Broder, Respondent. Meeting 0/ Electors-Treatmj at-Bribery-Emdence 0/ corrupt offer- he i^MO^/n ' "'^*'"^ had dispersed, went to a taveTwh re remark ''R^v^ ^.1 ^'T"' '" the bar-room, to whom he made the k!,? ' n y^' ^" y°" have something ?" Nothing was then taken • he dTtreat VTr^'"" °' *^^ f^Ponlent, said he^wodd treat and tney ^Tayt^trtrat^"""*' ^""^ '""^ ''^^P^^'^-* «-« '"^ ^^e ^hour beSt^e*!t'«rnH '"f ^"^ P?">°«"gthe election had dispersed an of eleotore '^^'P°"'^^°* went to the tavern, this was not a meeting '^""s'prite" *'' ^"^'"""^ ^°*' ^ ^^'"•''•» !"•• "=• 4. - i» for<=e i"^ '^t tKf a"„Wp!." 1873.compromised with his creditors for 50 cents the thne of tL ^l!.\P''°"i!'^'^ ^n^^ ^ "'^"^'^ '^o* vote. He belonging to the Rose "state -Vf '' °"^ '' *^« ^^^u^es *-ed ^othis. I swear tht 'not *'" '^ "«^ ' - ^vas said about the future woX . """'^ ^^ '"^y ^ind ">ust have invented the sto^ ' ^' '"'"' ^'"^ ^«^ him yative Association of Dundas """f . °^ ^^' ^^^^'^r- Morrisburg Branch. J tre " "' '"^ ^^^'^''^^'^^ ^f the standing a couple of hours fetlin "''"'""*'«" ^ay after George Casselman asked m'e t^ T^ ««^^' ^^^ tired, speaking. We went to th b! '"• ^""^' '''' ^^« *hen 7« as far as across the streettZ7 "'"' "^^ ^""^ '* about 40 or 50 feet separated /t r'"^°"""" P^^^« ' .^«|o and get something" Wnk'^ "''' '^' ^^^^^-^n ^« Farlinger, who ought to be Rp ! ""' '"^^•- " This h- treat." I did not drink bef ''' n"^ *^" "^"^^^^ *« be -as drunk before I gotTchan?T.t" ^^"^ »"°«^ ^^iskey -ven or eight dolla^rf L 2 t . r"^ ' P"' ''^'"-^ ^andlorct by name. He Ibll " ^ ^''^"'^ ^"«^ the paid him just what he asked '? "T"'^ '^' ^™k«- ^ on when I got out. The ^.i ^P^aking was still going ^0- I went to the hot! U.^^^^^^^^^ ^ad go/e be' The evidence as to 1 •^^"t thmk he returned. iouei s (wiio was respond- ECTIONS. r [A.D. > flid not say where the m was out of doors. ^ a medical practitioner ^y Mr. Boultbee for the tnvassedhimforBroder asked him how he was ";' *»ke it as a favor if 3k exception to Cook's advantage of this, and te said he did not know be here shortly and understand that if he e would not vote. He at one of the houses neither he nor I re- ne word of any kind ' 0^ some one for him fiber of the Conser- i President of the imination day after ^ery cold and tired. Some one was then . wliich was full ; it 3 nomination place ; sked by Casselman ne one said: "This id this ought to be the good whiskey ak I paid between 1 don't know the ed the drinks. I »g was still going icer had gone be- ik he returned. ;hat the witness ''bo was respond- 1875.] DUNDAS. 209 ent's election agent) to promote the election, and is suffi- ciently set out in the judgment. Upon the opening of the Court on the next morning the followmg judgment was given : Spragge, C.-The first point in Mr. Bethune's amu- ment was the treating at Dixon's Corners. This trJat although not direct by respondent, but throucrh the' instrumentality of Empey, was in substance a tr°eat by the respondent. This treating wa.s impeached as a corrupt 1«68 and 1873; 2nd, As against the Treating Act, 7 Wilham III., c. 4; and 3rd, As an offence at common law. In the first place, was this a meeting of the electors assembled fo- the purpose of promoting the election ? fThe earned Judge reviewed the facts of the case, showing that the meeting had dispersed one hour before the respondent went to the hotel.] There was no adjournment of the mee ing; no preconcerted arrangement of meeting at the hotel, but an accidental meeting of a few persons. He held It was not therefore a meeting of the electors In he second place, assuming the Treating Act of William 111. to be m force here, was this treating a corrupt act 2>er seJ He referred to the authorities ° to show tL treating m order to be elected, or for being elected " Act oT wT ^ 't'tt*^^' ''''• ^' '^^"^*^^ whether the dec sion oi Chief Justice Hagarty in the Glen^an-^ case {antejp. 8) m support of his opinion. 3rd, Was ft corrupt treating at common law.? At first treating was con- Indl : ■''""' '' t,ribery-bribery by refreshment" and that a corrupt motive was in the heart of the civer and the receiver. It is laid down by Rogers (llth'^Ed.. Pli^^nj^^^^tmayb^ whether treating was ever the part of the sittii^' member ?i^' pTol.SbJi't t^t^•;"'"'^'^> "JS"* ".'hat 'Sing ",1 mittee, a legal ground for avoidi^ the llec«o„ unrii, fi,"".'' '" '^e opinion of the com- th. Province, heretofore Upper dnX^'l'^TtZ%VecVo7V"ec^^^^^^^^^^ '"'' °' 210 PROVINCIAL ELECTIONS. an offence at common law Th« t. • ^^^* -as the thin,Mlonecorn,ptTy //li wVT''"''^^''^" ^•'^• what the Le.'i8]atur.> ;,:/ , ", " '*^ ^''^ ^'^J^ct of doinir '"".St look broa2 rrtl. ^ ^'^ *" ^'''^'^'^ ^ The JucJ whethe.. ie wix r :r rr if ^^^ ^'^^"^' - '« n>-ativin,. the idea of corrupt nte^t'.T;''^''"''-^ '" c.rcumstance,s into coasiderlttf h f T '"'^'"^ ^" ^'^^ act of treating ca,„e withinM '' ""*^ ''""«"'«'• ^^is ;rhe payment to Suf^ Tn " b:T':;^"' *'^ ■^^^*"^- of honor, it having be n p" '.^ , f "P«" as a debt composition was nfade Saf^^Hh/'r ''^ ^^^^^ «^ and the n.anner in which h '^^]-^'^''' appearance. W.n above suspicion Th J ^7 " *^"'^"^'^' P^*^-' cases in which the respondl L r^' """'^'^'' «^ «*her '"i«es-notablytowonen-t?>. w.'"'" ""' ^^'^ P^o- ance of ,bribeJy whil it^lt^t * ,^ ^ He ruled that in this also t),^ otherwise have worn. A.S to the Boc. eat he TnT" T ^"^"^^ '"*-^ something was said aW bli r 1 '' '^' ^^"^^ ^^at hi« anxiety to get wCk W T "' *'^^' ^^'^^"«' - He could not thL Dr VeCmaT" '''" "" •"^^'• as was implied. ' ^ '"*^" ^"^ «"ch promise of the electors at a ineett" oft. T ? '' ^'' ' '''^'^S • election. The We ex ef si '''"''*" P^'*^"^^^^ spondent to his brotlr \! ^''''^'' ^^^«» V the re- largest sense, "w'^t:; r '';'"' '"" ^" ^-^'-* - the he attached ^C 1 X"w ^'^r -^ with Farlinger as To^ tuiri"^"" ^'''''''''' connection Matter's position in th Co? /" '^''"'' "^^" '^ '^- common-sense view of the ev'7 ' ^^^^ciation. The was an agent. ' '^'^'""^'^ ^«« that Farlinger Jn conclusion, he acniiiff^ri +u rupt acts by himself 1 h ^"cspondent of all cor- J "iinseir, or his agents w^fii u- i , ? TIONS. fA.D. t"io consideration is ith the object of doinc-' ^ovhu] i The Judge ^nse of the thing as to e felt no difficulty in t; and taking alfthe (lid not consider this ling of the statute, oked upon as a debt when the deed of aiacter, appearance. '»ia evidence, placed je number of other arried out his pro- ' act of any appear- ervvise have worn. > corrupt intent to the belief that Jt that Bo6kus, in re than was said, any such promise •mination he held it was a treatino- rs to promote the given by the re- an agent in the fc sub agents; and >der s connection rent, than to the ssociation. The 1 that Farlingei' lent of all cor- his knowledge, the manner in There was an nd few persons 1875.] WEST HASTIN(;S. 211 had bci-n subjected to so searching an t'xaniination as the respondent had been. He ac(|uitted him and his active supporters of all corrupt acts. Although he believed Mr. Fariinger was not actuated by any corrupt motives in giving the treat at the nomination, still the act was one which came within the meaning of the statute as a cor- rupt pmctice, and he could not overlook it. In ccmse- quence of that act, and that alone, he was compelled to void the election. The learned Judge certified to the Speaker that tlie election was void, and reported that no person was proved to have been guilty of coiTupt practices. (U Jonrnal Legis. Assem., lS7.')-(i, p. 7.) WEST HASTINGS. Before Chancellor SpuAciGE. Belleville, I7lh nml ISth May, 1875. Elisha Wesley, Pditioncr, v. Thomas Wills, Respondent. Paumut of Election Rrpnm.s h,, th. Camndate~Corru,,t Pnutkex-M-m- bfrx Onth-~H0 Vv:, c. ..', .<,. 7-lJ ; 38 V,,:, c. S, h. li. '^^'lti}\ •^^'i':-:,''- 2> 8s- "-12, recjuires all election expenses of candidates shall be paid through an election agent ; and the Act .S8 Vic c 3 s 6 ro-iuires the member-elect to swear that he had not paid and will not pay election expenses except throngh an agent, and that he "has ot teen guilty of any otiier corrupt practice in respect of the said elecUo '' ^^T2Z:S^'''' "' therespom^ent personally. 'ivX'iot Hf'ld, that such payments were not corrupt practices. Held, th.-it the words "otiicr corrupt practices" in the member's oath meant "any corrupt practice.'' -"t- mem oer s oath The petition contained the usual allegations as to corrupt practices. 3fr. Bcthune- and Mr. Clutc for petitioner. Mr. Wallbridffe, Q.C., and Mr.'S.J. Bull, for respondent. The facts of the case are .set out in the iudo'ment 15 J n • 212 J'K(»VIN(;|,u, EI,KCTlON.S. [a.d. Iiii Mr yy«/W conte,ul.,l that s.,.. 7 of tlu, Act of 1H7H 3« V,c.. c. 2, ahsolutely fopf.,,!. any payn.ent of docti on .•xp.n....s except th,-o.„I. an a,..nt. anil n.a,,. Jfc a co,^tt act He refem..! to the Cnsl.rl ,„.■ (, o'M. & hThS and the Pmri/n mse {llnd. VM). ' Mr. WnUWid!,e, for the respondent, conten.le.i that no n.an couhl be ound guilty of a corrupt act un s t Htatute expressly .leelared that the doinc. „f a cla n act should he corrupt, and ,... statute had r^ o led! t " As to the payn.ent to the son. the n.onev had noM. pa.d and the n.oney therefore ...nained tl. . ^ ^If i\n~ fa ter .n the hands of the son. and was unappr j ted ri. other payn.ent was hefo.-e the no...inat ,n\.t tl.^ respondent as a candidate. SnuooE. C, said that the tec-hnical points raised by he pe ,t.o..er nar..owed then.selves into two cases Lsf hat a hall ha.l been hired by the respondent pre Jious t o he no..nnat.on, which had been used by hi, . an ulat ho had paid for it without n.akin-^ the pav nf7 , an expense a,ent; and secondly. S.^t^H^X'^S given su.ne .^4 to his son, a lad unde,. a.^e i,. o,!- h.Vt hin.^ an ac^oinin, village on ..sin.:s'r:i:r:^^ the elec .on subsequent to the non.ination. The son appeared f.-o... the evidence, harl not appropriated b money to that object, and the agent of the es 3 " \ .sub,se,iuently paid for the horse hire in th. quired by the Act. There was an ^^i: ^^^^^ m these ol.ections; they M-ere technical in t^^e stri te •sense ot the ter.n. and should, considering I ^e ,cl •stances, be met by the most technical c.'iticrsn of f a .' Itself. The que.stion to be considered wa X tl ' f constitute a corrupt practice ? A de«n tion of " I Vic. c. ^^■::J'^:t:^zz:^^ ^^ - practices were defined as n.eaning " bribe - ■ tVeT "• "^ etc.; under. 40. ..personation;- "under si; ..;:::S. [a.d. > Act of lH7'.i, -'lit of election I« it n corrupt M. iV H. 288) 'Hfloil tliat no ict unlcsH the of a ctM'tniii >t MO (leclarucl. had not been • property of iippropriatefl. ation of the its raised by • cases : first, t previous to iin, ami tliat iiint throuirli pondent liad )ider to take neeted with Tlie son, it priated the )ondent liad manner re- Jce of merit ;lio strictest 'he circum- of the Act i tliese acts of corrupt 1 Elections by the 36 ct, corrupt ' treatinir," ' providing 1875.] WEST HASTINOS. 213 'iitertaininent: " under s.(J4. "hiring of teams;" and under V 8tunces. not an act of bri^bery P JctLr""^" ^""^^^"^'^ ''- "-^^ «'^-^- Of con.pt Hr- ■>■ K Km- (or petitionei- Mr. IMi,u„„, Q,c., an,l Mr. H. Buk„, for «,po„,Ient ca.Xtr7e«i;uLtr "■' '"^*' *'"-« ''- ONS. [a.d. PRAGGE. > 1875. LiAM R Meredith, upt intent— Treatinr/ in a ■tti/ not Bribenj—Limited ern during his canvass is s. I, on the clay of election, which was opposite the ng or soon after polling r in poor circumstances at It was given out of ■polling by a friend, but the election : ;heir candidate, divided .rticular wards in which ^iven authority to any isser, to canvass gener- niittee for Ward No. 2, act of bribery in Ward ter ward, was an agent • 2 only, and therefore alleged acts, r in Ward No. 6, gave d a lesser sum, and as larges of corrupt for respondent. lets affecting the case, which was leredith-Durand ; he is a carpen- s? 1875.] LONDON. 215 tur by trade. He was canvassed on the Saturday evenino- before the polling. I don't know the gentleman's name who asked my husband's vote. I was standing at the door when he was passing, and he asked me if my husband was going to vote ; he said he would make it all right with me if I would get my husband to support Mr. Meredith. I said I would do all in my power. He returned a couple of times that evening, pretty late ; when he came the second time I had not then seen my husband. He went in and talked to my husband ; I also went in and told my hus- band to give Mr. Meredith his vote, as he had always been on that side. He said he had not determined how he would vote. The canvasser told me to send my husband to his house on Monday morning, and my husband went there ; I saw the two together. There was an ofter of money to me by this gentleman. He took some money out of his trousers' pocket, and said he would make it all right if I would get my husband to vote right. I got no money except some to pay for some beer ; he gave me a oOc. piece. I got a quart of beer; it cost ten cents. He asked my husband if he would not like a glass of beer. My husband took the money and returned with the beer. He told my husband to put the change in his pocket, and he did so. He afterwards gave my husband 25 cents to get another quart ; this was a couple of hours afterwards. He told him to put the change over in his pocket. The gentleman never " made it all right with me " after. I told my husband that this gentleman would make it all right with me. Gross-examined : No sum was named ; nothing was pro- mised definitely. I never got anything; nothing was ever asked for. Re-examined : The person said he " would make it all right," and he held the money out in his hand. Walter Woolstan : I am the husband of the last witness. I was not canvassed for Mr. Meredith, except that I was asked by one gentleman to vote for him, either on the Friday or Saturday, in the evening. The person who 216 PROVINCIAL ELECTIONS. asked me is a cab-driver Pi.. " he lived near wher tin , ,''"^"'^*^^>^ '^ ^^^ »a,„e • -d asked „.e ; J: 1^"^::^^ ^^^ -- to my house' When he first asked me I told h r JT" "^ *^'« «hop. how I would go. He offered ^o "in "'* '^^^™^-' came several times in the n 'h" '"f T'"* '^ "'^- »- was after supper. I had been at a ' . "' """^ ^^ ««'"« "^ere quite a while. We had ,0, T'*'"^ ' ^' ''""'^^^^^l f eightley, furnished the molVT -n"'' '" ' «"«* ^*' ^ut he, to get the beer, and I .ot « T^'. ; '• P''""- ^e told me fifteen cents ; we d antt betT ' '" "'^^^ ^ P^^ ^- o about the election while drinl'" ""'■ ^^ ^'^^^ talkin. *he change, and I Ztl ft " "^^ "f^ '^''' '»« to kee; f ve me some more tne/r "^^>i ^^ ^*'*™rd! beer. I only had to go o tie n. f. ' ''''''^''' '^"PP'^ of fat too. , He was ther fl'^e ti"" r" '' ' "^ '^^^^ for It the second time. IrememTrfr' ^ ^"^^ *^" «^"ts he told me to keen that Tn,,''" ^^'''^^n^e chancre- -e a drink in the'mt w' ' H ""' '' ™^^ ^'« ^^ ^^ M-edith. He went awat ^f ! T' "^ *« ^^^ ^o^' "•e to vote for Mr. Meredfth ,h -f ^'^ ^^ ^'^^^ a«ked f-S to give her a p: set f I'l?' l^'' "^"*^^'"- -- there before I saw h^m the first It T ^''' «^ ^^^ a time the last time. J accom n^^ . u" '"""^"^^ ^"ite he was leaving. He said n 2 t?' '"" /^ *^^ ^'-^ as "ft ; I heard nothing mot f d^' 7'^' *^'^^P* -"««^- wife money. She told meTsh. "'* '"" ^''^ ««"«»• '"y or Mr. Meredith. On M 'nd "T" "T ^'^ """^^' -*' house, in the morning-the noJlfn T"* '" ^eightley's posed I would vote aH right not^^ T "^^ '''"^ ''' ^i' to the polling-place. WetlveT"^ '"'""'"• ^^ --t three others in the hack but ht'' " ' ^^^ ' *here were I -agine they were ei;etors [ ""! ^''"^"'^ *° '"^ = booth and voted. I remain T / '"* '"*« *he polling -me time and then ;:Xi^\7;he Po«ing plfee fof 'IONS. [a.d. ^eightleyishisname; ; he came to my house' ^he room off the shop. i had not determined iducement to me. He 'he first time he came "eeting; he remained l^eer; I got it, but he, Oc. piece. He told mj r which I paid ten or s. M^e were talkinrr He told me to keep ?b'- He afterwards 1 further supply of ise for it ; we drank 'e ; I paid ten cents i-e was some change; ' it would do to get red me to vote for -e. My M'ife asked this gentleman was Jiatway. He was He remained quite im to the door as wife except good- t see him offer my le she would vote »t to Keightley's He said he sup- rther. We went cab ; there were strangers to me ; into the polling polling place for ince received no Keightley, and ^^- We talked I to my wife he 1875.] LONDON. 217 He said there was a protest would make it all right, entered now. Cross-cmmined : This gentleman never held out any inducement to me, and I never saw him talking to my wife, and -did not see him putting his hand in his pocket. I remember his leaving the house the last time. I have no recollection of seeing him put his hand in his pocket ; all the money I got was what he gave me for the beer. RoUrt Keighthjj : I remember the Meredith -Durand election ; I took part in it. I was on the cominittee for Ward No. 2. I attended some of the meetings. I asked some voters to vote for Mr Meredith. I may have re- ported some of them to the committee. I took some voters to the poll on election day ; I also took Mr. Wool- ston. I had asked him to vote for Mr. Meredith some few nights before. I canvassed him in his own place. I .saw his wife and told her what I wanted ; I asked her to try and get her husband to vote for Mr. Meredith ; she said she would. I did not .say I would make it all right; I deny emphatically that I held out any inducement directly or indirectly. We had something to drink ; I think it was beer. I proposed we should have it, and gave the money, 50 cents, to get it; the husband and I drank it I takmg but little ; his wife may have taken some. I do not recollect beer being got a second time that night ; my impression is there was none. We were talking con- siderable about the election. My object in going" there was to get his vote. When I sent for the beer my object was to talk matters over pleasantly about the election I voted in division four in No. 2 Ward, and canvassed there principally. He voted in No. G Ward. A canvasser told me he did not know where Woolston lived, ani that led me to go there. I may have canvassed in No. 3, but I cannot recollect. I canvassed wherever I saw people. Cross-examined: Woolston's vote was in No. 6 Ward but he lived in No. 2 Ward, having inoved there before.' His name was not on my book for canvassing. I got no change for the 50 cents; they were pleading such poverty, 218 PROVWCIAL ELECTIONS. [a.d. '!• :'i';i I thought it M'ould be harrJ f« . i , O-n't think .,e ch.„; trofcrlLt' '"^ "'■"«^- ' -At the cIo+' +1, >v.s delivered : ''''y *" '<'"''»'«« j-dgment Spraqge, C said • Th • msted by Mr.' Kerr' on th^Mlir''' '"'^ ^"^ ^^^^'^^^'^^ the treating at the Revere L ' T' ^"*«hard's case, ^, The charge of tx^atTn" a^the 7' ''' ''^^°'^'«" -- there.spondenthi,„.self h:d inbi ™ ""^"^^ ^»"^'««t ^t was not treating of the .1 r^'"'""' '^^ ^'^""^^^i"" ; ^ith corrupt motivls ''^''■•^" °°'- ^^« ^^ ^''eating As to Mr. Mccormick's -ase ■ MnP •, porter of the respondent atd ^f "^''"^^ was a sup- ^iw^lling* house was opp!;i;e o "'^ ^.^''"^""ttee. His and at a late hour of poC 1^ t ''' P°"'"-^ P^-«««' «nished, the witness sa7d hf a td " "'"''? '^^ ^-" of his friends to go over to hirK "" ^^ ^^'"^ «»" four «ome beer, and also e derberr. "'" ^" '^' *^W« -^s the parties partook of Ittr^' '7^^ ""^ ^^es, which controvention of section e6cTZ7ft'\'' *''^ ^^^ ^ that it was so; and believed th!/.. 1' ^' ^^^ ^«* ^^^^^^k stated, that a number of Mr '^ '^t*'^* '^^ "^^-- amongst those whom he invitP.. '^ ' ^"'"^'^ ^^^e corrupt influences were in elde'' T ^ ''T' ''''' "« corrupt practices had been prov''in!his^^^'' that no The next case was what w^It '^''■ case. In it there hadll ''''''' ^' ^^e Pinkham f Durand. The er of Meredith, t appeared that 1875.] LONDON. 219 Pinkham had always supported respondent, and this was proved without any doubt. He had gone to vote, but hesitated, as he said, because Alderman Brown had promised to give him half a cord of wood if he voted for the other side. This appeared to be the only obstacle, and if what Trainham had deposed to were true, then it would be a clear case of bribery. But a different version is given to the story by Brown, who says, that when Pinkham stated his difficulty, he said, " Go in and vote like a man ; and if you are really in want, the city will relieve you. If you are really in want, I will give you sufficient to keep you from starving." Now, it had been proved that Pinkham was in bad circumstances; he had got wood from the city before ; and it had also been proved that Brown had relieved him before, and was in the habit of relieving others. Trainham "s mode of getting information was not to be commended ; and he obtained what information he did get at a disadvan- tage. Mr. Justice O'Brien in the Yoicffhal cmc (1 O'M. & H. 294), held that where it had been proven that money was given in charity, it could not be regarded as bribery, and this appeared to be one of a similar nature. Brown having stated on his oath, and he had no reason to dis- believe him, that he gave this wood to Pinkham out of charity, he therefore decided that no bribery had taken place. With reference to the case of Mills, who was bailed out of jail by Woo.,, it appeared that the witness. Mills, was a particular friend of Woods ; and the latter, on his oath, had stated that he did not belong to Meredith's com- mittee, and did not even know that Mills had a vote. He preferred to regard the case in that light, and that Woods bailed Mills out as a friend, and not with the view of getting him to vote for the respondent. But the case on which Mr. Kerr mainly relied was that known by the name of the Woolston case. As to that, there were two questions of fact : The first i-j the ques- tion of agency. When that question was brought before ! I 111 I ? Ill 220 PROVINCIAL ELECTIONS. [A.D. him l,y Mr. Kerr, he had expressed his opiniorr on it, and he liad not any reason to alter that opinion. As to the contention of Mr. Kerr, that all the members of the Liberal- Conservative Association were agents of Mr. Meredith, he was not prepared to accede to this; it rested mainly on that association bringing out Mr. Meredith. He was the gentleman of their nomination, or, as it had been said m evidence, " the standard-bearer of the party " That party decided to bring him out at a general meeting-a mass meeting-which was called, and Mr. Meredith ac- cepted the .nomination. At that meeting those present broke up into knots, the different sections choosing the representatives for the wards in which they were voters. As soon as that was done the functions of the Con- servative Association were at an end, and a new arrange- ment entered upon. He thought they mightas well say that it a requisition to a man to become a candidate was signed by 100 or 200 electois, the act of signing it constituted them his agents, as that the Conservative Association were so because they brought out Mr. Mere- dith. It was clearly explained to the committees then formed to promote the respondent's election, that they were to look after voters in the particular wards in which they resided ; they had no right to canvass in any other ward The principle of agency might have been estab- lished it authority from Mr. Meredith had been given to any canvasser to canvass generally; then he would have been canvassing under Mr. Meredith's sanction, and the respondent would have to be responsible for the acts of such canvasser. This authority does not appear to have been granted in this particular case. The person charged with having bribed Woolston is a man named Keightlev who lived in No. 2 Ward, whilst the person Woolston lived in No. 6 Ward. The committee for the ward in which Woo ston lived dealt with that man, and the respondent could not be made responsible for Keightley's act.seeing he had no authority from the respondent to canvass out of the ward m which he was appointed. It had been maintained I '• [a.d. opinion on it, and inion. As to the lers of the Liberal- f Mr. Meredith, he rested mainly on lith. He was the it had been said he party." That neral meeting — a Mr. Meredith ac- ing those present ons choosing the they were voters, ons of the Con- d a new arrange- light as well say ! a candidate was ct of signing it ihe Conservative it out Mr. Mere- committees then Jction, that they r wards in which ass in any other ave been estab- id been given to L he would have inction, and the ^e for the acts of appear to have i person charged med Keightley, erson Woolston le ward in which the respondent y's act, seeing he -nvass out of the )een maintained 1875.] DONDON. 221 that a book had been supplied to Keightley containing all the names of the electors in the city, but it does not appear to Lave been such ; it was only a book with the names in his own ward. Neither did Keightley appear to have got any general authority from the respondent to act for him ; the respondent appeared to regard him as a man of zeal with little discretion, and not a man to be altogether trusted with his confidence. Having thus stated liis views with regard 'to agency, he thought it was unnecessary for him to go into the acts of bribery said to have been used on the occasion of inducing Woolston to give his vote. There was a conflict of evidence, and each party had given their own account. He preferred to accept the evidence of the witness Keightley himself, and to hold, as in the case of Pinkham, that the change re- ceived for the beer was given as charity, and, therefore, that Woolston was not bribed. The promise of money to Mrs. Woolston would have been an act of bribery had it been sufficiently proved. The act on Keightley 's part (as stated by himself) he held to be a suspicious act— a most dangerous act— and showed a good deal of impropriety on his part ; but it had not, in his opinion, been sufficiently proved to constitute an act of bribery for which a can- didate could be made responsible. With reference to the law as applicable to treating and bribery, he said it had been much needed in the land, and past experience showed it had been much needed in the city of London. There were in all communities some electors who were apt to be corrupted. Some we'? apt to be corrupted by drink, and there were others— and perhaps they were more in number— who would sell their votes for gain; for this reason, a strict and stringent election law was required, and he disagreed with those judges who held otherwise. The determination of Mr. Meredith was that he would rather stay at home than be returned corruptly, and the result of this inquiry had shown that he had not been returned corruptly. He was thus enabled to form a very different opinion of the city 222 PROVINCIAL ELECTIONS. [a.d. ot Lotulon from that stated by his brother Hagartv at he last trial. The present inquiry had shown him that there could be an election conducted on honest and pure pnnciplas. ' The i)articulars contained charges of bribery and cor- mption against the respondent and a large number of his supporters which there was not a tittle of evidence to prove. There may be an excuse for this partly from the ta.. tJ. ^t such charges had been made at a former election anrl p^, ly because there are charges in the particulars >^ Mch those that got them up only expected to prove /'US cours. wa^ not justifiable, because the particulars CG>. .. .mended at any time before the trial ; and those who got up the bill of particulars ought to have been much more careful in doing so ; these charges were not only not proven, but entirely disproven. He concluded by congratulating Mr. Meredith upon having come out of the election with his hands clean. The result was that the petition be dismissed and the respondent found dulv elected ; the petitioner to pay costs. (9 Journal Legis. Assevi., 1875-6, p. 22.) ^^S- [A.D. brother Hagarfcy at lad shown him that in honest and pure 'f bribery and cor- large number of his ttle of evidence to his partly from the it a former election in the particulars expected to prove, ise the particulars he trial ; and those ight to have been charges were not en. He concluded laving come out of e result was that •ndent found duly ., 1875-6, p, 22.) 1875.] WEST ELGIN. WEST ELGIN. 223 3 Before Chief Justice Draper. Toronto, Wth and 17th April, 1S75. John Cascaden, Petitioner, v. Malcolm G. Munroe, Mespondent. Pracl'ce—Partkulars for wrtUiny—TKnilfral votm— Corrupt practki's— BalhU and counterfoils— 7th General Rule in Election Canes. When the petition claimed the seat for thn UDHuccejsful candidate on tha grounds that (1) illegal votes and (2) ii .,,roperly marked ballots were received in favor of the successful candidate ; that (3) good votes and (4) properly marked ballots for the unsuccessful candidate were improperly refused ; and that (5) the successful candi.late and his agents were guilty of corrupt practices, and particulars of all such votes and ballots and corrupt practices were asked from the petitioner. Held, 1. As to the illegal votes, thai the 7th General Rule prescribed the parti" ulars of objected votes to be given, and the time of tiling and delivenng the same, and a special order was not therefore necessary. 2. As to the improperly marked ballots and improperly rejected ballots, the petitioner not having information respecting them, could not be ordered to deliver particulars of the same. Particulars were ordered of the names, address, abode and addition of persons having good votes, whose votes were improperly rejected . at the polls ; and particulars of the corrupt practices charged by the petitioner against the respondent and his agents. Heal V. Smith, L. R. 4 C.P. 145 ( Westminster case), followed. The petition in this case contained the usual charges of corrupt practices ; and alleged that illegal votes and improperly marked ballots had been received and counted in favor of the respondent; and that good votes and properly marked ballots in favor of his opponent had been rejected ; and claimed the seat for the unsuccessful candidate. After the petition was at issue, a summons was taken ^ out by the respondent, calling for the particulars of the allegations in the petition. The summons asked for particulars (1) of the persons not qualified to vote who had voted for the respondent, and the grounds of their dis- qualification ; (2) of the votes tendered for his opponent and rejected ; (3) of the counterfoils and ballots for his opponent which had been improperly rejected ; (4) of the counterfoils and ballots improperly received and counted r r 5.' f'l 824 PROVINCIAL ELECTIONS. [a. I). but lie contended that a.s the 7th r;,.n,.,.oi p i • ^i^^"^^- or .-..jectoa vote,, „„ ,p.eia, „,.":«!':» LlrA^ 1» tcular, ,„,pBcting the ..allots and counterfoil, tf pe,t,o„e,- could not «iv„ th. info„„a«n aXd ar^l he" ballots an,l counterfoil, were in the cu,todv„f tlT « UK .) o. P. 446, and Mmmlimj v. Ow- 21 W p 627. »howed tha. th. (.allots i„ th4 elecron eaisT^il only ho mspected unde,' » special order. Jtft-. ./ A .Sot,^, cimlm, contended that 'it «..» .1. petitioner'., duty to obtain an inspection of the hi, ^ and to furnish the information asked fo" Id , if 1 1 whrfrc^L*™''''^-'--'--"*'^^^^^^^^ .u.ror.i:ichUrtL.'':™,tt:tfrt"i'''''"-'^°'" =ra^d':i-:-:;rt:i-i£E? Munroe,and to have it declared ih^i fi ^'^'^'"^ ^- the party deiending. the election and the return sha within a given time deliver to the Clerk of fhl P and also at the addres.s (if any) Xer bv tl .^''''"' and the re.spondent (a,s the ^f^ e) tli^^' fX votes intended to be objected to, a/d of ' th heads o the objection to each such vote. I .see no reason for a \\ '"^^^■^- [A.n. lupt practices charged ts in the petition. ler, showed cause, and i to corrupt practices oral Rule in Election elivery of particulars as necessary. As to nd counteifoils, the iiion asked, as all the istodyof the officers Js of Stowc V. Jolifi; V. Oon-y, 21 W. R. election cases could r. that it was the tion of the ballots, for; and if he did from relief on that ase to dispose of a Jarticulars ; and in ball take the sub- linthepetitionand f (John Cascaden) n of Malcolm G. the unsuccessful elected, and ought 1 the 7th General nplaining of, and the return, shall ■k of the Crown, t>y the petitioner t»e), a list of the of the heads of no reason for a 1875.] WEST ELGIN. 22.-. special order in this case, or for vaiying from the terms ! of tliis Rule. So far I discharge the summons. 2. Particulars are asked for as to parties alleged in the petition to have had good votes, who intended to vote for the unsuccessful candidate, whose votes were tendered and improperly rejected. I think the respondent is en- titled to their names, address, abode and addition, and I order accordingly. 3 & 4. Full particulars are asked of the number on the counterfoil of those ballots, marked, or so marked as to indicate votes, for the said Thomas Hodgins, improperly rejected, ami not counted for him at the said election; and the number on the counterfoil of those liallots which' were void, and should have been rejected by .rea,son of i.heir wanting the signature or initials of the Deputy Returning Officer, and tfie name of .such returning officer- and of the number on the counterfoil of tho.se parties voting for more candidates than one, and as havin" a writing or mark by which the voters could be identiHed and as unmarked or void under the provisions of the Ballot Act, an)„fh,.iht'ry, tlio unduf inHuence, le, all vvhioh aro re- H'tition ; and of the who lu'fojv, at, and t and hrilif, or I'ivo iduct' them to vote voting for the un- &c., of the persons itic nature of such refeiM'd to in the ion in the case of ieh Willes, J., after ckburn, J., ordered ^s before the day Hter, and also give lars in writing of d, and of all per- uenced; and that )etitioners of any 2ulars, except by my) as to amend- iosts as might be application to the particulars which I make a similar «, except that I S make the time in the same man- matters charged J to. 1875.1 WEST ELOIN. WEST ELGIN. 227 Before Chancellor Si'raqge. St. Thomas, :^4tk June, ms. John Cascaden, Petitioner, v. Malcolm O. Munroe, Bcspondent. I'HUiiin clitimini/ thf nmt—ficfulinii of roten—Chnmie of dai) of trial— Withdrawal 0/ rf^immli-nt ^S,(U airarded to thf UMuwi-^ii/id candidate at election —Crrti/catff Ihi-reon to Speaker. Where a petition claims the seat for the unsiicoesgful candidate a scrutiny of votes may be onloreil to he taken in each municipality 'by the Registrar acting for the .Judge on the rota. ' The Jay appninted for the trial of an election petition may be altered to an earlier day by cont-ent of the piirties, and by an order of the Judge. During the scrutiny of votes tiie respondent abandoned the seat to his opponent, after his opponent had secured a majority of » votes, and agreed that such should stand as iiis opponent's majority, and that the Court should declare such opponent duly elected; and the same was ordered by the Court. The petition was as stated on p. 223. The vote at the elfotion was: for the respondent, 1,101 , for Thomas PTodgins, i,0.91 ; majority for respondent, 10. A scrutiuv of votes having been applied for on behalf of the i»(fcitioner, the Chancellor, being the Ju' majority of eight of the good and n t^^^"^ ^^^^ ^ electioa ^ " *'^'* ^^^a^ votes at the said That the trial of the saif^ t.^*- +• the town of St. Thorn .nih"" ""'"' ^'''^^ -« -* tte said election. AnTr before him, as directed elusion of the scrutiny homas Hodgins had a legal votes at the said on came before me at -county of Elgin, on •I June last past, lid trial, I determined m G. Munroe was void s was duly elected at uch determination to behalf. •e me at the trial. tes of evidence taken ' o« the said scrutiny. 'd that the following iilty of corrupt prac- James Timewell, (3) 'm., 1875-6. p. 18.) 1875.] WEST WELLINGTON. WEST WELLINGTON. 231 Before Mr. Justice Gwynne. Ouelph, 25th and 26th June, 1876. George Moore, Petitioner, v. John McGowan, Bespondent. ■ Agent furnishing drink at meeting of electors— 3S Vic, c 21 s 61 ■ 36 Vic t ^',-^' ^r^°'^ occasioned by conduct of Election Agent-Corrupt practices by tavern keepers. ^ *^'!n J'A/"iT°* ''^ the respondent, brought a jar of whiskey to a meet- Ln^n °f «l«<=t°." "^^f-nble^ for the purpose of promoting the election, ana gave drinks from the same to tlie electors present, which wa^ held a corrupt practice, and a violation of the Election LaW of \m,^ amended by tho Election Act of 1873. so that the election was Se^ '" "^tl I'Tl'i?''*'^^ charges of bribery against the respondent's nnnlnf '• *\°"f^ not esteblished, were awarded against the ■ K^ u , ^^"'Tl"^ *,° ^^^ equivocal conduct of his agent in the matters which led to the charges ; also the costs of other charges of bribe,^ which were not established, and the costs of nrovinf that sS L^w of 1868. as the witnesses who gave evidence of these matters also gave evidence of other matters, as to which it was reasonable thev should have been subpcenaed. lewonaoie rney The petition contained the usual charges of cori-upt practices. The candidates at the election were the Respondent and Robert McKim. Mr. Hodgim, Q.C., arid Mr. Outhrie for petitioner. Mr. Robirtson, Q.C., and Mr. Drew, Q.C., for respondent. The evidence on which the election was avoided was as follows : Thmms 'McAllister ; I live in the Kerry settlement. I was at a meeting held in the school-house during the election, called by Mr. Fahey It was a meeting of the electors. The school-house was pretty full. It was about a week before the polling day, or the week before. The polhng day was on Monday Mr. Fahey addressed the meetmg on behalf of Mr. McGowan. There was some whiskey going at the meeting; Mr. Fahey brought it there. He told us it was his whiskey It was served out to the people attending the meeting I got some. 232 PROVINCIAL ELECTIONS. [A.D. The whiskey wa. served out before he commenced to tne meeting. The whiskey was in a jar. It held I shoulH lor mni^ Mr. Fahey attended meetings and snoke for Mr. McGowan ; ate Dr. Orton ; also, ,t tWnk M?Wt attended one meeting. I was at tl,e meeting in w' Fahty nd Dr Orton'^k?" *" ': "'"^^^ ''^ «■•■ J- auu ijr. uiton. Ihere were two meetino-« «+ +i,„ Kerry settlement. I think Fahey was latet?; fi It heartfm Th' W' ^"' T^^"' ^''^^ ^"^^ « ' hear h m. The last was the one at which the whiskev He ;;rr r-J-b-ughtit. Several askelS ; ^Th, "/r ^^- ?' ™' *^ <^h^ '^^^^^ to look after ^ The cutte>- m which it was had gone. He a!ked sent for it. I was brought back, and Fahey poureTil out and gave it to the parties there. There were from thirty to forty people there. Fahev keot 1^1 ! until all was drank Tf '.'^"ey Kept pounng out »• was urank. It was immed atelv before ih^ meeting commenced that th. whiskey was hLded round Mr Fal. T. *?"" ^"^ *^^ P"^P-« 0^ replying to ^r«s-OTm.«rf, I did not drink any wliiskev mv„lf I have not drunk whiskey for thirty jta^ That nT'br/thtghrMr'Va e^'y IthTh"'"^'^' ' »'" asked him « never e^'eS^X mi J aTThe';'' ' whether he ™ an agent „, Mr^McQ^wa: „ tt""^ d.d not thmk the law was so stringent as it appea^,^ be ''IONS. [-A.D. )re he conimenced to ^ho drank stayed for jar. It held, I should 2. Thei-e were thirt-" I live in the West elector. I took Mr. meetinefs and spoke Jtings and spoke for , T think, Mr. Barrett le meeting in Kerry 1- The bills adver- e addressed by Mr. two meetings at the as late for t\e first, ,s called specially to which the whiskey Several asked Fahey door to look after i gone. He asked • Some boys were id Fahey poured it There were from kept pouring out diately before the was handed round, i in relation to the 3se of replying to irhood w^as chiefly y whiskey myself. >y years. I have uring the election, whiskey. I said lave some, and I ind at the time Jowan or not. I s it appears to be. 1876.J WEST WELLINGTON. 233 James Fahei/ : I addressed some meetings for Mr. Mc- Gowan. I addressed a meeting in the township of Arthur. I heard it stated here that whiskey was brought by me to the meeting. I had nothing to do with it, but that it came in the same sleigh with me. Mr. Charles Biggar drove me. He had charge of the sleigh. I got out of the cutter at the school-house. The horse and cutter were sent up to Mr. Cornelius O'Dowd's stables. The whiskey was in the cutter when it was sent there, about a quarter of a mile from the school-bouse. I had no intention that whiskey should come to the school-house. When we were leaving Mount Forest where we were, Biggar put the whiskey in the sleigh. I never thought more of it until we got to the school-house ; there was quite a crowd there. Mr. O'Callaghan and Mr. Milloy asked me if I had any whiskey, or if we would not treat. I said, of course, you never knew an Irishman that would not treat. I said that there was some in the cutter, but it had gone away, and that if they had a mind to send for it they could. Somebody went for it ; I did not send. Biggar was pre- sent when this was said. The whiskey was brought down ; some boys brought it in. I said to O'Callaghan and Milloy, now if you want a drink, here it is ; Milloy took a drink ; I took one myself ; O'Callaghan put it to his lips but did not drink. I thought then that it was a trap, and I said, I hope this is not against the law. O'Callaghan laughed, and said he thought not, and even if it was, nothing would be said about it. If I had thought it was against the law, I would not have had anything to do with it, The whiskey then went round, and it went but a short way. Mr. BobiTison. at this stage of the case, said that he was satisfied that upon the evidence of Mr. Fahey the election must be avoided ; for that no doubt Mr. Fahey was an agent, and his acts as to treating at meetings could not be justified. He therefore asked whether the petitioners insisted still upon the personal charges ? 234 PROVINCIAL ELECTIONS. [A.D. Mr. ffodffins said that so far as fhp ^.^-y cerned he had no desire to nl V P'*'*^«»«^ ^as con- would leave the casras toT ^^ ^ argument. ^^''^ ^'^ ^^^ Court without that James Fahey, an tent oth^' /"'*""'" *'^^' promoting the sa d eWf '^'^ respondeat for section of^heVe:Llt"^,T867^^^- 1 ^ '''' Election Act of 1873 did nl i .' f ^""""^"^ V the -eeting of elector\teS foT . ^^"'^^ ^""^^ n>oting the said election ^' P"'P"'^^ '^^ P^^" attltn^XchtZstr^ to the petitioner the costs tavern keepers guilt of havin "f! l^ ^''"'^'"^ '"'^^^ liquor within polling hour,.? v''" ^^'^ ^'^^^ ««W following reasons \w"n. f"'"^ ^^^' '^'^^ ^^^ *he attemptell tTbe estabHsh/d . ?' '^" ^' ^^^^^^^ ^-e «pondent's financ I a^ ;!' '^,f ^ ^^^^ ^^ ^he re- showed that in the „X, '^^^^^^^« his evidence just imputation of an^fa:^^^^^^^^^ «^ ^^^ -s no very equivocal conduct of M. ''"^^^^^ J^^t^^^^y showed butable either to !rot '''"' '" *^^ matter, attri- gravercharge oflSt of IdeirT K ''^ P^^*' «^ *« ^ the trust he had Issumed ^^ ''"^''^'" '"^ *^ law as it at presenTstr. , ^^""^ ^''^ '""^^ that the it does in the Z If , r^'"' ""* ^"^'^^^ the Court, as ?o make tht^rt l;S;::;f*r ^^^^^^ rn^ent, the ^^:::^.^i!:^zr'. rr-- inquiry which the ignorance and 1 "^^'^^^tal to an agent, although not criZaj Z '"^'^""^"'^t of his own other charge? of I berv wh ^ T^'"'^" ^ to the -tablished'and as t^tL 1 tt atnd""^ '"^^' ^ ^^ tavern keepers to have vioC tt S^- iTf tt J petitioner was con- personal charges, and ' the Court without 3n of the respondent pt prf^ctices, in this, said respondexit for >lation of the 6J.st as amended by the furnish drinks to a »e purpose of pro- •etitioner the costs 2h were not estab- the proving certain 3ir own profit sold ig day, but for the is of bribery were idence of the re- ile his evidence of there was no , certainly showed the matter, attri- his part, or to a employer and to y much that the ble the Court, as ise of Commons, 3sts of this vain I conduct gave ler and the re- ncidental to an luct of his own led. As to the >re failed to be ig proving the 1 section of the 1875.] SOUTH ESSEX. 289 Act of 1868, which it was proved they did for their own profit, with which the respondent had nothing to do, I cannot separate these from the general costs, because, upon a careful reperusal of the evidence, I find that the several witnesses who spoke to these points also spoke to other points as to which it was reasonable they should have been subpoenaed. In certifying the result of the trial to the Speaker, the learned Judge also reported that the following persons, being tavern keepers, were proved to have been guilty respectively of corrupt practices, namely, in keeping their taverns open, and selling therein spirituous and fermented liquors in vyolation of the 66th section of the Election Law of 1868, namely, Robert Ramsay, Daniel Sheehy, Carleton Calvin Green, Theodore Zass, William Kirby ; and further, that James Fahey was proved to have been guilty of corrupt practices, in violation of the 61st section of the same Act, as amended by the Election Act of 1873. (9 Journal Legis. Assent., 1875-6, p. 9.) SOUTH ESSEX. Before Chancellor Spragge. Sandwich, 6th to 10th and 13th July, 1875. Samuel McGee, Petitioner, v. Lewis Wigle, Respondent. Agent accepting a treat in a tavern during polling hours— Con-upt Practice — Costs. On the day of the election, and during the hours of polling, one W., an agent of the respondent, was offered a treat in a tavern within one of the polling divisions, of which such agent and others then partook. Held, that giving a treat in a tavern during polling hours was a corrupt practice, and being an act participated in by an agent of the respond- ent, the election was avoided. The petitioner was declared entitled to the general costs of the inquiry, and the costs of the evidence incuried in proof of the facts upon which the election was avoided ; but the costs incurred in respect of charges which the petitioner failed to prove were disallowed. The petition contained the usual charges of corrupt practices. u 236 PROVINCIAL ELECTIONS. Mr. Alcrande,' Uanm-on for petitioner. Mr. Home and Mr. S. White for respondent. [a.d. or six persons on polling day i7^" ^« ^'^^^^d five Alfred Wi„e and A^uf^ or tZZt ^'^^'^ was while the polling vas .oin" on if ^^.^'^^^''ds ; it sitting-roo.n. There w«. «?!?:"' '' ^ ^ '" ^«^«J^«e« rpi ■-' o --- > '1- n-aa 111 ljOVeia< '«tea once , I „,„ not „ ;LThe: A^, Jw^^r?'- ' at Lovelace',; he drank. There are ottfw'*''' ''^''''* at Ruthven. I saw Alfrerf IK T ^ ' '"" ''^™™» ^vem, ,„Hn. polLf l:l'''tnrrTa'r' '"h"" 9, abo t the time of fi.. • Baylors about Lovelace's alrion ""'"« °' "'^ P°"' -"' t" it waa pretty ,ariy Idon't rn r.."" P'>"'°«'i»y: o.- aftertte ^openta: o, the „oU T,""*'''' " """ """■■« Wore the opin,„g"o, 'the pSu thinT """^ '"''^' '"^ Gross-examined : When ]Wf.n.i^^^ «nt to Taylors and It ifthe LTr t'""' "' think, the polls were not otn " 1^ f' " T°"' the mornimr and T l,„,i ■ i '' ""« <»"''y n Lovelace's httelt the Lid^eonr 7*'"" ' ^'^' ^ ^ and McQueen tossed^pt^^^^^^^^^^ ^^ ^ ^""k. went in and had a drink tV ^'^^^'}^ ^««t' ^nd we I was bringing u/vot^ to luloTZ^l l^ '' "^. used my own horse and cutter -^l . ^ ^^e day. I poll. I took a pretty ac^^'rpartrt? w" '^ *'^ since my brother came out. We formed 1..^''''" '^"'^ at Ruthven to work up theTocaUtv T . '''"'"^'''^ and marked off names I did nnf ^' ^''^ ^ '^^*"''^' ^^'^^^ came to the store Ts^w ""*^,^^"^*««' »«less people election, and told him 1^^^'."^'"' *^^^« ^"'•^"g "^e pretty good suppt^iLd'Sfiir; Tl' ''^' ^^"^ i'l' loia Dr. Allworth (respondent's 'IONS. Jner. [a.d. 1875.] SOUTH ESSEX. 237 esponderit. n which the election awing evidence : ^jgle ; I saw him in day. He treated five ft was at Taylor's; ■ two afterwards ; it it was in Lovelace's f of us together. I Alfred Wigle treated )nly the two ta^verns leveral times in the t to Taylor's about ' the poll; went to ueen's evidence. I m on polling day ; ether it was before IS pretty early, and election agent) we could give pretty good support where we were. I appointed Henry Smith as scrutineer for re- spondent, and got him to act an such on the polling day. [The other evidence as to .gency is omitted.] Spragge, C— At the clo.se of the argument on Saturday last I gave my views upon the several points of law and of fact presented in the case. One point only I did not decide finally, viz., whether the partaking by Alfred Wigle, whom I find to be an agent of the respondent, of a treat given by James Mc- Queen, during polling hours, in Lovelace's tavern, was a corrupt act within the statute, which would avoid the ^ election. I could see no escape from the conclusion that ^ this act, prohibited by the GGth sec. of the Act 32 Vic, cap. 21, and declared to be, being within polling hours, a corrupt act by 36 Vic, cap. 2, s. 1, and being an act partici- pated in by one for whose acts the respondent was respon- sible, must avoid the election. I have since had an opportunity of conferring with three of the other Judges, and they all concur in the view which I expressed at the conclusion of the argument. The result is, that I must declare the election void by reason of the corrupt practice by an agent. As to costs, I think the petitioner is entitled to the general costs of the inquiry ; but the costs have been greatly increased by the calling of witnesses on charges which the petitioners have failed to prove ; and the costs, so far as they have been so increased, are to be disallowed. No costs are to be taxed in respect to the evidence, except such as have been incurred by proof of the fact upon which my judgment proceeds. In the searching and protracted inquiry which has been had before me, I find no personal wrong proved against the respondent. The expenses of the election have been very moderate, and the evidence leads me to believe that the respondent desired and endeavored that the election should be a pure one. m li *"- i,!« 288 PROVINCIAL ELECTIONS. [a.d. j..n., mcq::: w^'^;:r:t Lt; ^""'' ;"«'- •»'' rupt practices at the elccfor, '""■'" «"'"^ "^ «■ !| . I SOUTH OXFORD. Before Chief JU.STICE Draper. ToKONTo, im April, 1876 Benjamin Hopkins, P«^^7,■.„«,,v. Adam Oliver 7?.' v rap. S, The petition, besides nl.ar„i„„ .u . _ . ''"^" "-^ P^Uton. ifl was subject to the same d.r„.uT(^Z „« «' 1'"^ "''^™'*^ *'"'* ""e agent * ItLK^^tl °^ *'^« P"tition^ Mkla that thl^ P""* ''"". "« "^ canditfate party to the petition, and that h« IT i,! u '*»^?* ">'«''* "je made a quahhcations an.l penklties ^ ""«''* '^ 8ubjecte*d to such dis ^rm^l^S^S^^^/Slffi^^^S^^^^ Acts or elsewhere, of personal misconduct on his part '^'P"'"^«n* '« » Pet.tion on a charg^ '^^^^^^''X:^4ZKtl7t^^- ^°-* or the Judge on qualifications, ' " °*'**'^ *''»'>« candidate " to such d?8 re^dt «;rn,^^""« thClh^in ai^ c^t.^v™''"''^''' ■« »'t Th« ft*K rf '*'''^ *° P^""' consequences ' ^P' ^' "^'^^ *»' «">d 80 to discourage such pleading. " '* unnecessary, and is intended The petition contained the usurI ni,„ practices, and in paragraph 3 chaZ ttTS' "^ '''^"P* was. by himself and others on htTefalf l^' ".T" ^^"* treating and undue influence whioh „ ^" *^"^ ^"^•^^^' and (paragraph 4) of procur „g rerpe^n^^^^^^^^^^ to personate and assume to f ote It th? 1 . ' -""^^^ names of other persons who were vote J '.^^^^^^^^ '" '''' providing drink and entertTinln 11' ^^'/^^^^^-P^ ^) expense at meetings of elector. L^l / (^^^Po^dent's) keeping open dive'rs hott tv^s^aiTr^' '] ^^ spmtuous andfermented liquors weTe^inafc^td i ? I 4 '^«- [A.D. of the result of the tt Alfred Wiglo and been guilty of cor- n., 1875-0, p. 11.) 'RAI'EB. tUio„~,t4 Vic., rap. 3. -Form oj Petition. h various corrupt acts, claimed that the agent inalties as a candidate. :ent might be made a ubjected to such dis- >n Acts or elsewhere 'a petition on a charge Jurt or the Judge on 'didate" to such dis- sons "other than the rupt practices, is not ap- 3, sec. 49, and so 1875.] SOUTH OXFORD. 2.39 of selling and giving such liquors to divers persons cor- ruptly to influence them. Other general charges were also made. The 17th paragraph stated that Peter Johnson Brown was an agent for the respondent, before, during, at and subsequent to the election, in furthe-ing the .same, and was guilty by himseF of each and all of the said corrupt practices ; anil petii xier submits that the vote of Brown for the said respondent was therefore null and void, and he thereby becam incapable of being elected to and of sitting in the Legislative Assembly, and of being re- gistered ai a voter and of voting at any election, and of holding any office at the nomination of the Crown or the Lieutenant-Governor, or any municipal office. The second paragraph of the prayer of the petition asked that Brown should be made a party to thi.s pro- ceeding in respect of the said charges so made against him, to the end that he might have an opportunity of beir)g heard, and that his said vote might be declared null and void, and he be declared incapable in the several particulars hereinbefore mentioned. The petition contained no direct allegation that Brown voted at this election, though it was submitted that the vote of Brown for the respondent was null and void. A summons having been granted to set aside the 17th paragrai)li of the petition and 2nd paragraph of prayer, Mr. F. Osier showed cause. Mr. Hoyles supported the summons. Draper, C. J. A.— I presume Mr. Hoyles represented the respondent, and therefore that the summon,s is to be treated as issued on his application. He rested principally on the absence of any authority given by the statute to make an elector, not having been a candidate, a party called upon to answer a petition filed and prosecuted to avoid the election of the candidate actually returned. He also objected to the 17th paragraph, that, as against him, 240 PHOVINCUL ELECTIONS. niw [a.d. Q-.;s Bench ancU.,o;rlS!:::r" ^'''^ ^-^ 0^ heing heard in hiilw;, ,?'^ ^"" ^'^^^ opportunity of petition, on which trial thZ in '^ *^' '''''^' «» the t'-' charge of con^ pm , r"' Hr';'' '^ ^^'^^'"^"^ ^« *'«vit to .show that tiw eha r'wf ^ P"* '" '^" '-^ffi' and invited particuJa. .ttenZ IV, T"*""^^ "'*^'«- tion alleged that Brown wl an a!, ^^e '.=Mhat the peti- as well as an elector. ^^'""^ *°'' "'« respondent The Act, ;J4 Vic e *? i, ...ore candidate, ^ VZe7 T "* "'"' '»'°" PeWion ; ahd (,. 28J rec„™i», T ""'' '° ""^ "»""'' ■eta™ B..t there i,„„a„aCble"'r '''"''™ »"<> an. th,,, case. The contest to°vhl " "v l7! P™™'""' seat ,n the Honse : whereas asLp "'"y '''-^te m tor the a party on,,, that he ...a^rHahlet ^'n Tt ^ "^ ■■""» I fear great inconvenience wo„I,J o ? "*!*'^^'- a successful candi.late cou ] lel T"'!,' '/ '^*^ '^"^"*« «^ accusation of personal m sconduc " "''"*^ *« ^'^ petition, the leading object of 1 K ''''"""' "P«" ^ sitting .x^ember. Th^ WhlaM k"""' ^'^ ""^^** "^« directly, provided for t-„f:eo7Th ' "r* ^* ^^^^ it-and this onnssion seems to m ^'"'^"^ ™^^^ '"^«* of legislative power in ol! to ?'^""'' *^^ ^'^«™ an addition to the powen thich T^/ ' '' ""^"^^ ^ -matter of procedu.' Zlt t ''''"*^ ^^^^^' "«^ a given. ^^^ '"^ *^« exercise of powers «lV!S^"Z'rtS7r •■--'« a, a pro. not the letter of the OthS"„"if ,"" ''" 'P'* " general charge of corruDi nZ ' """"^ ""*' a not, I apprehend, be XS^:- T'*° *'»«' "-.J given until an order for particulars 'W ?TIONS. [a.d. 1875.] SOUTH OXFORD. 2e, and wu,i contrary to ""i«le in tl... Court of court. ed that by making tho "1 the opportunity of and of rebutting the ' ^^y *he i.s,sues on the would be pertinent to e also put in an affi- not wantonly ,„ade, le fact, that the peti- t tor the respondent ^vision for thi.s par- ^ («• 27) that two or 'I'lonts to the same fnore than one peti- same election and ien those provisions i«y relate is for the ^n, he is to be made )enalties. ^^' ^f the agents of defendants to an n election, upon a ivas to unseat the a« not, at least reneral rules meet quire the exercise ' it- It would be Ltute gives, not a ercise of powers -unless as a pro- on the spirit if because under a ific details need ' for particulars 241 IS made; hut the rule does not preclu.le the statement of such evidence, it renders it nnnece.s.sary, and so far was no doubt designed to discourage such a practice. If lirown is properly made a party, 1 think he would have a light to such an order under this nil.-. 1 l,ave looked at the Imperial Statute '.n-li2 Vic. c. 125, from the 4.^th ,s.-ction of which this of ours .eems to have bee,, copied, but that Act refers toprec .wng .sMUitesin force in England, under which proceedin, s might ! ; instituted. i Under our st£ Jut (^4 V ... c. 3, .s 10) the Judge is re- ! ([Uired to determine ..hethe;- thememb..r whose election or ; return is complaint', of, or any and what other person was thereby returned or elected, or ^vhether the election was void, an.l .shall forthwith certify in writin.^ such determination to the Speaker, api^ending thereto a copy of h.s notes of the evidence ; and upon such certificate bein.. ■riven, such detrnninatim, shall be final to „ll intents ond j'lirjmses. But the Judge is (s. 17), when a corrupt practice is charged, in addition to this certiiicate. at the same time to reimt in writing to the Speaker, among other things, " the ndn.es of any persons who have been p,-oved at the trial to have been guilty of any corrupt practices." The case of Stevens v. / illett, L. R. (i C. P 147 which was not referred to on the argument, points out very clearly the distinction between a " determination" and a report, and our own statute so closely resembles the English Act 31-32 Vic, c 125, that this decision is applic- able m many particulars to the present case. It is the Judges duty to .-eport. but it is not said his report is to be hnal. The 49th section of our statute enacts that any person other than a candidate found guilty of any . corrupt practice in any proceeding in which he has had an opportunity of being heard," shall incur certain penal con- sequences. Now, if the Legislature had intended that the Judge who tried the issues raised upon the election peti- on and reatmg to the validity of the election and return, should at the same time hear and determine a '242 PROVINCIAL ELECTIONS. [a.d. reasonable to expect that t woud ?"'.''"'' ''^"'^' «o. It is obvious that the Act was L'. ^''""^'^^ ^^'^ ish statute. The 49th sectfon of T'^ "P"" *^« Eng" though not in every detai " ""'/"' '^ substantially ^he English statute, wSLwTf f ''^ '•'*^ -««- o^^^^ certain effect to the reporroTTn ^'''''"" ^^-^^-^^ a persons guilty of corrupCetLesf !."''' '' -^P-*« prosacutioa of such patens t ^' P"''P'^^« «f the statute (26 Vic, «. 29 bj' t ?'"= '' "'^"^'^^'- English ;epon does no't ^Zt.'^tiO^^y^^^J^J foundation of another proceed nf rf !''"" ' '^ '« ^^e have occurred to the framers of our a\ t'' "^'^ ^^^"^ *« «-ry to provide for some ' IT .^'' '^"' ^* ^^« '^eces- notice of the charge " the nl« '^'"^ ^" ^^'^h, after -port n.»y havet "o p^r ritTt^^^^^^ ^y the Judg^I while making use of sectirri;,-^""-^ ""'''''" ^^^ refer to section 16 of the Ent] i!' "^' remember or appears to me. the inoLXuSt ^"^ ^^-' - consequences of the 49th secdon K° ^^''^ ''^ '^« P^-^al It may be as well, however tot >'' ""'' ^^^" P^^^^^ed. that our enactment applLs to 2 '"^'^"^'^ '^ ^^e fact rupt practices. The EnW sh loTT ^"""'^ °^ ^'^J^ «or- to those found guilty of bribt^ "'"'^ ''^ ^^^^^^ only in my opinion the power of «.'];., j • than a candidate" guiL of oo T '""^ ^ P'^'^"'^ "other iect him CO the ai^2alZT ""^'"^ ^^ ^^ ^« -h- Wd either upon^he eL S^r'^^r"''"' ''''''' '^n- t- ^«^«; and that the JuZsre'T T ''^^ -^"^^^ o'^ any persons who have been n ' T .° "*^' "^'"^^ of b-a guilty of any corrupt praE'' '';.'"^^ *« '^-^ elusive, so as to bring such nl '' ^""^^ ^"'^ «on- of the 49th section af foufd llT' "l"'^" *^« ^P^ation to the penal consequence ^ ^' ""'^ '^^''^^^'-^ subject -^^^^Z^J^^^- -strike out prayer of the petition. ^""^^"ding paragraph of the SECTIONS. r ,''"' ^^° Jiad, as an he election, it is, I think, ^"W have distinctly said w trained upon the Enrr our Aefc i, substantially y oi the 45th section of Jr. by section 15, gives a the Judge as respects ' tor the purpose of the '"= ^o another English portion of the Jud^^e's salification ; it is the It does not seem to Actthatitwasneces. ^dmg in which, after ^Ipated by the Judge's 3t being heard," and ' did not remember or statute; and thus, as r a party to the p^nal 'S not been provided, attention to the fact *^ guilty of any cor- on 45) extends only ing a person " other notices so as to sub- 'erated, is not con- ■t or the Judge on or "the names of fc the trial to have not final and con- thin the operation therefore subject isue to strike out paragraph of the fA.D. J 1875.] SOUTH OXFORD. 243 ^ I understand the application is made on behalf of the I respondent, and not of Brown. If it were on behalf of .|. the latter, I should give him his costs, as no objection was ;; made to his being heard. If of the respondent, the point -'- being new, I will give no costs. SOUTH OXFORD. Before Chief Justice Draper. Woodstock, 13th to 15th July, . .75. Benjamlv Hopkins, Petitioner, v. Adam OhiYi£.Vi, Respondent. Production of tekgmnui— Evidence respectini/ chart/es not in particulars— Excluding Reitpomlent'/i Attorney from court. Tlie Court ordered the agent of a telegraph cninpany to produce all tele- grams seut by the respondent and hia alleged agent during the election reserving to the respondent the right to move the Court of Appeal on the point ; the responsibility as to consequences, if it were wrong so to order, to rest on the petitioner. A witness called on a charge in the particulars of giving spirituous liquors in a certaui tavern on polling day, during polling hours, cannot be asked if lie got liquor during polling hours in other taverns. Tile attorney for the respondent may be ordered out of court when a witness 19 being examined on a charge of a corrupt bargain for his withdrawal from the election contest, when the evidence of such witness may refer lo the sayings and doings of such attorney in re- spect of such withdrawal. The statements in the petition appear on p. 238. Mr. M. A. Harrison, Q.C., and Mr. H. B. Beard for peti- tioner. Mr. Bethutie and Mr. F. R. Ball for respondent. During the trial the following points were decided : An agent of a telegraph company was subpoenaed to produce certain telegrams in the custody of the telegraph company. David Flook • I am in the Montreal Telegraph Com- pany's employment at IngersoU. The respondent and Peter J. Brown sent mes.sages through the office during the election. The messages are in existence now. I object to produce them. I am instructed not to produce them. »p il 244 PROVINCIAL ELECTIONS. After the argument of counsel, [a.d. Draper, C. J. A., said : I admit the right to call for the telegrams, reserving, as a question of law, whether the petitioner has a legal right to demand them, the respon- sibility as to any and all consequences, if it be wrong, to rest on the petitioner. The respondent having leave reserved to move the Court of Appeal on the point, I direct their production. A witness was called to prove that spirituous liquors were given during the polling hours at Brady's tavern, in Ingersoll. During his examination, 2Ir. Harrison asked the witness: In what taverns in Ingersoll, other than Brady's, did you get liquor on polling day, during polling hours ? Mr. Bethune objected. Brady's tavern is the only tavern in Ingersoll mentioned in the particulars, and therefore the question should not be allowed. Draper, C. J. A.— I sustain the objection. A paragraph in the petition charged that one James A. Devlin, who had been a candidate at the election, was induced by a corrupt bargain to retire from the contest. During his examination, Devlin stated that he had been asked to see Mr. P. J. Brown and another as to his with- drawal. Mr. Harrison then applied that Mr. P. J. Brown should be ordered to withdraw while the witness was giving his evidence. Mr. Betlmne objected, as Mr. Brown was the attorney for the respondent, and his presence was necessary to assist counsel in the proceedings. Draper, C.J.A-I direct Mr. Brown's withdrawal while this witness is examined as to Mr. Brown's sayings and doings in relation to paragraph 8 of the petition l!i - 1875.] EAST PETERBORO. 245 After a number of witnesses had been examined, it was agreed by the counsel for both parties that the election should be declared void on account of corrupt practices by one William McMurray, an agent of the respondent, in giving spirituous and fermented liquors at his tavern, in the town of IngersoU, on the polling day, during the hours appointed for polling, in violation of section 66 of the Election Law of 1868. The Chief Justice certified accordingly, and reported that William McMurray was proven to have been guilty of corrupt practices at the said election. (9 Journal Legis. Assein., 1875-6, p. 10.^ EAST PETERBORO. Before Chief Justice Draper. PETERBORO, 36th to 28th July, and 2nd Augmt, 1875. James Stratton, Pdition^yr, v. John O'Sullivan, Respondent. Ads of agenei/— Respondent's Ayent partaHng of luiuor during polling hours not ' a corrupt pmrtice— Meeting of electors— Treating bi/ He- spondent's Agent— 36 Vic, c. 3, s. 3— Law of agency. A witness stated tliat he liail asked the people in his neighborhood to vote for the respondent, had attended a meeting of the respondent's friends, and made arrangements for bringing up voters on polling day, and had a team out on polling day. Held, that the evidence of his being an agent of the respondent was not sufficient. One B. was appointed, in writing, by the respondent to act as his agent for polling day. During the day he went to a tavern and asked for and was given a glass of beer. Held, that B. treated himself, and neither gave nor sold, and was not therefore guilty of a corrupt practice. One C. accompanied the respondent when going to a public meeting, and canvassed at some houses. On the journey, the respondent cautioned C. not to treat, nor do anything to compromise hin, or avoid the elec- tion. The respondent's election agent paid for C. 's meals at the place where the meeting was held. Held, that the evidence showed that the respondent had availed himself of C.'s services, and was therefore responsible for his acts. Agency in election matters is a result of law to be drawn from the facts of the case, and the acts of the individuals. 246 PROVINCIAL ELECTIONS. [a.d. 'lITOl^M tavern. whSl ^{JeVwer frJat" dt'c " "'"' '"'" *''^ "'^^*'"« *" * Toi«.^Te':i:crnTrnr °' ''"'"" """''"'^ '^ ^'^^ p"^°- «>' ^'StVo"ir^T^\[^-jir,' corrupt practice and a breach of the •J-s VIC, c. ^j, as amended by 2nd s. of 36 Vic, c. 2. m^tLer*'^*"'' contained the usual charges of corrupt Mr. Bethune and Mr. D. W. Dumble for petitioner •spo'Sei^"'"' ^''''"'''''' ^■^■' "^"^ ^'- ^"'•"'^«'« f«r r^- In addition to what is set out in the judgment the following evidence was given : ^ Frauds Birdsall: I live in Asphodel. I asked people in . my neighborhood to vote for D. O'SuIlivan. There wis a meeting at Westwood-not a public meeting-o The friends of Dr. O'SuIlivan. We talked over the election for ol n ""'f r' ^'^^'^^ ^'«^^"y --« the agen[. tor O Sullivan at this election. I had a team out on Pollmg day. Treated myself and four or five others at sIlr'Th T Sf?>^ ' ^'''- ' h^^ --dy i:a Xold an^h r^^^^ •^'^'"'*'' ^^"^^"^^ - the liquor. I and ie wou,/;: ;:\a™ ;o\t;r '"" '- -^ ™'^- fe e nim any. I think Breakenridgc wis at tr.v t.1o„ about noon. He wao flio-^ • . «^. ^ ^^ ^'^ ^7 place ''^'^'i Sreakenndge : I took narf n f„ i- I was at Norwood when Dr OS"" '' ^^^Pondent. public meeting. IwaIalso«t« ^^""''^'^^^^ t^^^*-^ ^^ a g. -^ was also at a private meeting at Bishop's It J i'i I.J 1 r tv; !J.< .' Ml* 1875.] EA.ST PETERBORO. 247 hotel ; a meeting of respondent's central committee ; 20 or 30 persons were present; respondent was not there. I was secretary ; I had no regular appointment. At that meeting I was appointed as agent for the respondent for polling day, but respondent himself appointed me. [Ap- pointment put in.] I got this from the respondent's brother. Mr. O'Reilly was also -laraed at my request. I did no treating on polling day. I was in Galbraith's tavern. I treated myself ; I got a glass of beer ; I asked for it in the kitchen, and got it in another room, not the bar. Francis Birdsall came with me. I paid for no drinks for any person that day. After the argument of counsel as to the agency ""f Francis Birdsall, and the purchase of liquor by John Breakenridge at Galbraith's tavern, Westwood, during polling hours on polling day. Draper, C. J. A., said: I think the evidence of Birdsall 's agency insufficient. As to the purchase by Breakenridge of liquor in Galbraith's tavern^ it waa a glass of beer to which he treated himself; he neither gave nor sold. I find for the responded :r) these charges. The facts on which the election was avoided are suffi- ciently set out in the judgment. Draper, C. J. A. — It is very satisfactory to me to be able to find that there is no evidence whatever in this case which impugns the personal conduct or character of the respondent. I find not only that he is free from the imputation of any forbidden practice in the mrae of this election, but that he has endeavurud, by earnest advice and caution, to restrain his friends and supporters f ora doing anything which would enable his opponents to neutralize the success to which he aspired, end render the election in which he confidently anticipated success being open to question through the indiscretion or reckless ss of any of them. Unfortunately, his advice was disregarded; the H I- :f 248 PROVINCIAL ET.EOTtOVS. [a.d. identified with tW » , . ' °*°"*'' »« »" 'w f- a-i.- illegal i;,;''""' '"*' '" ■™''- Wm re,p„„»i!„, . 3erjc X tintt/'T, 1 ^''^' *- advertised. The resco !n ii, '^^ '''''' ^^"'^^^^^^ Boulton a]l spoke atf tk" ^' ^'"''^""'^^ ^"^ Major sJei,h. and one Tim Iv c! "''?'"^' '"^ ^"^^^^^ ^ aceou^panied h L ^1^^ Cav^nagh and Major Boulton Holmes's tavern A^.h 'T ^^'^ ^'^''^^^ ^^^t *« almost directly for the S JhT '. I r««P««de„t retired who attended the' Tr^ ''"'"^'" «^ *h°«« electors agh treat^fthe ;^^^^^^^^^^ -'so to Holmes's. Cavan- the people liouor ?^' n '' '''^' ^" ^-^^^ him to give «-s^„7tLTo„eBov?T'' T '^ *^^^*^^ --^ opposing eandida:::^rsTHSe%t^^^^^^^^^^ Cavanagh states, from 10 n m 7n9 lu "^^^''^^^d, as The facts are reliedTnon f u *"•'"• *^' ""^* '"^^^ing. -tion of the S:i:^zi';'Zs tr^^ -' ^ ^^^ expense of the resnonrJpn/ ! u ' ^ ^^^^nagh, at the viding and f-X^drinl' L r"^^^P^"^^' ^'^ P™' assembledforthenurno.Pnr ^.."^^^^^^S of electors this be proved thenT P™"^^*^'^^ «"«h election. If the agent for lptlnt^'T "^« ^^--^^h is answerable fofhis act and'c T' '^^" '^^ ^^**-- '^s in this ca.e, he not nnl 1 r'"P*^ Practices, though, actually, and in WrL td ' "^'^/"^^ori.e tl ,n, b^u Agency does noHe Is^a "^r"' ^ f^^^^^^ --• actual appointment. ^^^ ^^XT^'":^! '^ It IS a result of law to hf> ^ ^ *^'^ candidate. case and from the acts of the 112) . '" 'p ''^*^ ^' *^^ '^ which, with the hnowl C '\ ^/^^y '"stance <^-'ployed agent, say his esuC,^ .tt? ''' "' ^^' I '*. a,i.ent, a person acts at ;i.'j 1875.] EAST PETERBORO. 249 nd keeu'uig the s hoen w m .tonlv nry is v, cofcher ices are so far >infc of law to lim responsible Apslej about tjen publicly er and Major lad engaged a fajor Boulton Irove first to spondent and ndent retired those electors es's. Cavan- l him to give feated many fcratton's, the iontinued, as >xt morning, of the 61,st nagh, at the *nce, in pro- of electors election. If Cavanagh 1 the latter •es, though, * t' m, but it Liiem. )ven by an candidate, cts of the y instance te or his on acts at all in furthering the election for him, or in trying to get votes for him, tends to prove that the person so acting was authorized to act as his agent. A repetition of such acts strengthens the conclusion. I found these conclusions upon authorities in the mother country, using to a great extent their very words, but not simply quoting them. To apply them to this case. Cavanagh, at his own re- quest, which I do not doubt, and for certain personal motives which he asserts, — but to which (excepting his gratitude to the doctor for his professional services) I give but slight credit, — accompanies the candidate on a journey, which had for one object to attend a public meeting in reference to the election at Apsley, and for another to canvass voters in a particular section of the county. It was intended that Mr. Carnegie, one of the respondent's authorized agents, should have gone with him. He did not go, and Cavanagh 's request that he should be taken was complied with, though Mr. Carnegie says he had no desire to take him. Cavanagh says he was acquainted with people on the Burleigh Road, and that he did not canvass the whole of the Burleigh Road; that on this journey he canvassed at some houses, and perhaps canvassed some voters whom they met on the road, and may have introduced some voters to respondent. The very first witness called in this case was one of them. On their journey, Cavanagh states, the respondent, knowing his habits (if I remember rightly, he used some such expression as " Jle was an awful fellow for treating"), cautioned him to do nothing which would spoil his elec- tion — a caution which strengthens the assumption that the respondent counted on Cavanagh's assistance and exertions. Major Boulton, who also went with the re- spondent and Cavanagh, heard the former tell Cavanagh not to treat nor do anything to compromise him or avoid the election — a charge which points to the employment of Cavanagh for some work or duty in which his acts would be deemed acts done under the implied authority of the respondent. Again, on the day after this meeting, 250 PROVINCIAL ELECTIONS. [a.d. together, and toTca 1. ^ ' '"^^ *'^' respondent whether he ha, d ^^'^^^ ""^ ""^^ '"^'^ ^^^ ^^k^d him that he had not Z7 ^"^•, ^"* ^"'^'^'^ ^'' *««"''a=^c« years.andhadh ardof h rr ^ ''"' ^^^^"^"'^ '"-y in treatin, ^^^:::^^^^''^^:]:^^^ charged to respondent t. ^ "' '' "^^''^'^ ^* ^^'^ Hohneshadoharreda.anu '•''=' '''' ^""'^ ^'"^^ February, I87riat fl? ? 'V "^'^'^'^"^ "^^^^^ in Hohues'f^n th Vsth T ° '' Cavanagh's being at cun.stances t ken sepatlTv^ ^" ^'^-^ -" be deemed triflia" "^^ y '"*^' ^' ^^ ^^^^^ ««me may acquire wei^^t fnd 1";"'"'"^'' '^'^^ -"^ined they parties none;;^tn:t::L\:le:'^^^^^^^^^^ appear to me to furnish stroreviL 0^'' ' r '^'^^ ahve to the dancrer as wpII u , ^ ""^ ^-^"''y- ^ am of fixing .he res;:;d:„rt'irM r^^^^^^^^ r '^^^P- another as his agent, which other ii/,^ ^''' '^^"^ '^^ direcdy put to him, he wou^not h '^"''f '" ^^^^ ^'^- character. There was 0^101; • ' '^''P^"^'^'* ^'^ ^^at ent's part, and ar^ZltjTu ^"^'''"'^ '''' ^^' ^^^Pond- ;hink they -0^^: t^ rt^an^ T ' forma appointmpnf ^k I ' *""' without any _^^ me election, became responsible for his after this meeting of the Z°i" ''''''''^ ^' Holmes's suffice as to this :''" I ^as at tM" ^ "'" ^^^^'"^^ '-^ wards went to Hohne7s tlv rn ^ T "'''""^' ^'^'^ ^f'«- nately, turn about;/ Lea'd L T '"' ' ^-^^edalter- ^wo in the morning an tllT "' ^'" ^^ "^^'^^ ^^^ for each drink as if Ctakln " ™^' '"^^ ^ ^ P^^^ EAST PETERBORO. 9 to be a very he respondent nd asked Jiim 'ing parties to his assurance vanagh many ig free handed ivanagh goes he hired, but lether it was lorized agent and which Jilt dated in 's being at II these cir- i some may, ibined they ■ntiated by ndent, they ncy. I am t hardship, 'H done by n had been 'ed in that 8 respond- ?ie's, but I thout any self of his tJe for his 251 1875.] I think this is a breach of the 2nd sec. of 30 Vic, c. 2, which repeals sec. 61 of the Election Law of 1868. ' The' only question that can arise is whether this drink was furnished to a "meeting of electors assembled for the purpo.se of promoting such election previous to or during such election." The meeting was certainly not convened at Holmes's tavern, but at a town hall not far from it ; and Cavanagh, Boyd, and a number of electors went from' that meeting to Holmes's. It is not open to question that the meeting was assembled for the purpose of promoting such election, unless the statute is to receive t:.o narrower construction that a meeting of the supporters of only one candidate is meant, and the promotion of the election means only the promotion of election of that candidate. I do not doubt that such a case would be within the Act, and the evidence on the present trial is by no means con- clusive against this being precisely that case. Still I am of opinion the wider construction is no more than what the Legislature intended. If the meeting consists of electors of different parties, and it is held with the view of promoting an election, it must necessarily be an election of a representative for the whole constituency, to what- ever party he may belong. Unless the larger construction prevail, a general meeting of electors, held only for the purpose of selecting a candidate, would not be within its provisions, and the providing and furnishing drink or other entertainment to the electors present would not be prohibited. I do not agree in .such an interpretation. Another difficulty has been suggested, namely, that the treating did not take place in the building within the meeting assembled, and that the meeting was in fact over. A similar question arose in the North Wentworth case (post). I there held that where a meeting had been held for the promotion of an election, and after the transaction of their busiupss they had gone generally together to a neighbor]:-^ tavern on the invitation of the candidate on whose b. half the meeting was held, who there furnished or provided drink or other entertainment for them, it was 2r,2 t'HOVINCIAL ELECTIONS. [a.d. this w.»\ °„„,! "'"""'''" "'" TT"^ "'■ ""'""K *•' eo»^nt,.„;ujt:;:t;:i:/ri^rs^^^ (9 JmtmalLegis. Amn., 1875-6. p. 10.) Ilr NORTH VICTORIA. Before Chief J,^stice Drapeh Duncan McRae, p.,.v.w.., , John David Smith _ ^. -Respondent. ' W eparticuL..wered«i;. . . "' '''"^''''-^"•'■''^'"<^o,t, case. ' partic^ulap. a.u? noTril^n'ed^f alt ^/-'"^ '''"'^^'^ ''^ "" order for 't'on.and .luring ■ tr^* °' *^.f ^^'^'on^"^. «»me »raea, and had an oyster supper. Where evirl selling 1 1 out on .1 objected not cons "e of an th< \n (3cai 1875.] NORTH VICTORFA. 253 'understm I that another cane. I my opinion, and • of finding that an agent of the knowledge and are void. 1 the first charge udgment on the itliH tavern at the particulars, charges. S75-6, p. 10.) Hi. 1S75. viD Smith, y— Entertainment i~^'.lent treat in;/ iminatory case. % iio order for ' the trial to set e been made in time limited by '■ pttitioner was » ' ontained, and granting of the 'ollii;g day, and >etitioner, came e esidence was *a, the case was Held, that the" evidence was. not Budi, i«nt to gusUin the char™ that T^^V■.TTonr' '"7'!'r' .*;^\^.'-^"'« «f ""octorsSr s 'o oi AZ Vic, c. .'I, as anii'Mded by ,J(i Vic, c. 2, g. 2. On polling ,lay, one W asked two voters to go witTi him and vote for the respondent and he would bring them back, and they could feed heir horses and have dinner. VV^sent one of his hors/a on on,, o Ins own business, and hired from one of the voters a horse, or which W. paid hi.n .)0c., and then drove witli the two voters to the poll IMil, not a hiring of ahorse, etc. to carry voters to the poll within s 71 nor a furnishing of entertainment to induce voters to^ vote for the re^ spondent, with.n s. 61 of the Klection Uw of IH(i8. An offer by an ukv nt of tlie respondent when canvassing a voter, that he An agent of the respondent, whil anvassing a voter, ijavo «8 to the wKlowed sister of the voter, an ol.l friend of his. who was then in t^ duced circumstances. The a^ '..t stated that thi.s was not the first "-.ley so given, an.l that it was in no way connected wUh the election Hiiit, under the circumstances, not an act of bribery. One M., an agent of the respondent, treated at a tavern du, iriK poUiiiir hours on pollu,^ day. Tke evidence was, that decanters we'^^o put down, and people helped themselves, but there was no evLrce t^at Pm« r h "'.""'■' ^"''^ ""''^•- '^^'^ ''^'•'«"^« "•'«' objected to at the sLbScTto the o"K^^"°* '"^"*"'"^'^ "'*'- P-"""-- »-*.-l-i««l "'l'':.h 7^^^ ^^^ "''^"'■" °i *''^ ^•■''■'** '" ""' bar-room of a country tavern rinsed the presumption tliat the treat was of spirituous h.moi-s and was a cornipt practice, whicli avoided the election ' '• I::l^tZ:^l::SZ^'^:£l *" '"'^ ^ P-t-.lar embracing the C Ulfrcrorily prveT'' ""■"« ^ ^'^^ ^''^^^^ •'«-^V not having ° W?*n'r«^ '''=*"«i^i aff»t "f. the petitioner, aareed with a voter who voL'J^Un?" T "^ w? *lf Pet't'o-'e"- "bout a riglit to cut timber on the fn. .. A*° "'"l^ *''.'' "«'"e'--the voter when canvassed to vote mLf ? Ph*'*'°"?; '•e^e™"S to this difference. M. signed an agree- ment in the petitioner's name, whereby he surrendered any claim to cut timber except as therein mentioned. Held,\ That a surrender of the right to cut timber on the In of bntry cTause's J^xt T^''^'^'' ^''"^^ '^^ ---"« - the 2. That the agent M. was guilty of an act of bribery. ^?n*''nn!!'*'l'^'**.°- ^^^ P«''«T'' *° "^'**'" *''^' «««* i« 'I'^cided adversely in one case it is no prejudice to the respondent's case that other charges against the petitioner are not pronounced upon. Recr-ninatory charges are permitted in the in'^erest of electors, in order to pievent a successful petitioner obtaining the vacated seat if he has violated any provision of the Election Law The petition contained the usual chai.i^es of corrupt practices, and clfluned the seat ftjr the petitioner. The vote at the election was: For respondent, 724; for petitioner, 720 ; majority for respondent, 4. 254 PnoVINCIAL ELECTIONS. [a.d. !i f- m § petm^r"''""' "'"'' ««"""»'»0- oh.rge, .gainst t.,„ „„!;.*""' '''"'""•°»' Q-C- "'.rf «•• ^. &*e for petl. th.v were toolr 7 ''■".P"""""'-''-, on tho Rroun.l that defective. MoreoveTthr, ■ T' "" "" "PP"""""" i» «l»o furthe,. paZiL ''""™'"» "-^ '''"™-'. -" aclTd'anJ nttr?'' '";*"''"^ 'PP"" '<> '»« l'^™ eptea ami m.ver returned to tlie petitioner I thi„t should not have a ow d T' "?v ""' *' ""P°"*"' incur costs. P.rtrcil,Wef '''°"" '° ""''"^ -' showing why an IS T " ""^ ""^ »" "ffl^""' not made ^ °"'"' =°'"Pl»"« with the order was thiulfdltnl?-^"*"'^"'*™"'* "led statins shot trTJtror.i"? '-^ "-"^^ p-'--. rM fA.D. irges against the 3onUbee for peti- Ic/nti/re for re- i w»>re decided olyected to tho ho ground that >red within thu f^hich the par- application is delivered, and ^ to have been ner. I think ve been made le respondent proceed and lave the ser- liarges, under an affidavit e order was > filed stating or believing particulars, insufficient. ' 31st July, itil the 3rd ihe day ap- 1875.] NORTH VICTORIA. 255 pointed for the trial. Numerous witnes.ses must be called if the particulars are now receive.l, and the petitioner must get up evidence to reply. Besides, the order is not complie.1 with, as the resi.lences of the parties named are not given, and there is no facility for in()uirin./ Mr. Maclnimm: The order requiring petitioner to de- liver particulars to the respondent within a limited time was not complied with ; but particulars delivered to the respondent up to the night before the trial have been allowed. Draper, C. J. A.— I am embarrassed by the considera- tion that if these new particulars, or some of them are sustained, they would be of vital import. And on' the other han.l, the order being made on. I must assume, sufficient grounds, unless some sufficient reason-beyond the delay in delivering the new particulars- be shown for neutralizing the order, I am boun adjourned until the 18th Auffust as Draper C. J. A.-The unsuccessful candidate, Duncan McRae. xs the petitioner, and the respondent. John Davll Smith, has filed recriminatory charges against the peti- tioner. ^ The first case relied on by the petitioner is stated in the particulars thus : That James Ellis and one Mooney agent of respondent, bribed Thomas Coulter and Thomas Hodgson by the payment of a disputed debt between Coulter and Hodgson. The facts proved were that Mooney asked him to vote for the respondent. Coulter would not promise nor did he refuse, but he said that there was a debt due to him for seven or more years by a firm of John C. Smith & Co., John C. Smith lein^tC respondents uncle. Mooney promised to write anl o-et I rt H ''' ''^''^- ^*"*«"vards Coulter stw responden and Ellis together, and again referred to this aun. Ellis said that respondent was not a member of he firm when this claim arose (which was proved to bo th case . Respondent said he would write to his uncle, and f ,t ^v'a.s right his uncle would no doubt pay it Coulter and Hobden (not Hodgson, as stated in the par- ticulars) voted tor the respondent. Hobden was not present at any of these conversations,, nor interested in them, and it does not appear that anything was done in irttcha^f'^' -"'"--"->■ '--'-- The next charge relates to an oyster supper at Buck's the Town Hail-about five minutes' walk from the hotel After this meeting was ovei some of the respondent's uends remained together consulting about the election boaided There it was proposed to have an ovster supper which Frederick J. Shove, one of the partv. Ordered.' He ) ■ ; ; !( 1 '.1 j I ill r .ii 258 PROVINCIAL ELECTIONS. "II , ■ r, fA.D. said he had been working hard for the respondent durini. the day, and needed refreshment. Respondent had r*" "ously gone to his own room, and Shovf „v," d Wm"^"; come down and join them. Eespondent was JilaZ^, and deehned, bnt at the same time he urged Shovetodl nolhmg to prejudice the election, an.I Shove wenrd and seven or eight persons sat down to supper '""""■ at:: tr„s r: tjrxz ^^t 7"- -^ oystcn." It must then have been ulo * „ H '""' me^to join them. I excused n^", f "ndC saf/ '"oS said, Very well, 'and turned down, staii-s > out Shove thought there t.:t tZr^e^l^Trl; be charged by Buck to respondent aCl ^^ 1" said that he suggested this. Buck's chl wa " ^Z" wluch was for the supper onlv ^hl f ^ ^^^' account a day or two aShe 'ppef olT Z ^ two cents a bushel, and Shove sZTetk-^tT f7 t^'Iu^' was the way the amount was Jtlt Sht f' • '^'' with one Lett. Buck's book-ktn , or L "f ' ^' "^ applied for payment and Shove said f ? ^"''f " ^' of oats would cover i. HeaLostat'l '^""' ^""'^'^^ that this supper was orderpd ' ii ! "" ^'^''^^amination HuencingBuIanTlhrXL"^^^^^^^^^^ be charged a3 oats and tW i ' ° "■''"='■'' «« '» bar-keener it sho;ut„::i^V:::j™f=<' -* the his evidence by savi„„ « «" ' ™'' '"^ '=™cluded -pendent, I IlZZ^tjll Tw r*'"^ '" "^^ '"' o.r.freshment. !i„tendedll?:„riXt^- '*~?SI?wh?'*'"»'w ^S- fA.D. respondent during spondent had pre- ve invited him to i^as half undressed ii-ged Shove to do hove went down, supper. ting this to the '■hen Shove came oad of oats ?" I said, " There are ? to have some 3-111. He invited he said, " Can't ■ he could. He i- Shove swore ' was an under- espondent, but g refreshment, that it should of oats. Shove ?e was $13.20, made up the s were thirty- i thought that ve made it up f- tender. He r-one bushels -examination hought of in- im (Shove) to the election, jters were to 'd with the le concluded r all day for t to pay for e it charged 1875.] NORTH VICTORIA. 259 to him. I thought it necessary to forward the election." Some of those at the supper were boarders at the hotel. James Ellis spoke of this supper, and .said he was one of the party. He thought .S3, 20 would have been ample payment for the supper. He heard a talk about oats after the supper was mentioned. Gaynor, one of the party who had been at the meeting, produced a paper on which was written, " Twenty bushels of oats at forty cents," and they laughed, and the paper was thrown under the table. As far as he knew, the supper had nothing to do with the election. The oysters were got from Gaynor's, who keeps a grocery near the tavern. When Shove came down h-oia seeing respondent, he stated that respondent liad said, "Whatever Jim says." The witness understood tliat he- was meaut by " Jim." The particular to support which the foregoing evidence was given, is that one Frederick Shove, of the%illag.^ of Minden, an agent of the respondent, and with his know- ledge and consent, provided and furnished drink and other entertainment to a meeting of electors assembled for the purpose of promoting the election, at the hotel of D. Buck, in the Village of Minden. I think this particular is not proved by the evidence given. I assume it to be amended so as to obviate any minor objections, but it fails in my opinion, on the essen- tial ground that Shove is not shown to be generally the respondent's agent, nor particularly to furnish this enter- tainment. Mr. Shove (whose manner appeared to me to indicate that he entertained no mean opinion of himself) desired to have an oyster supper at the respondent's ex- pense, and to evade the law against treating, which he feared might apply, proposed the absurd scheme of an imaginary purchase of oats for a sum much in excess of what the supper would have cost, and then goes to the respondertt, who was just going to bed, to invite him to join them, concluding that if he accepted the invitation lie would pay the bill. The respondent very prudently dec lined, coupUng the refusal with a caution against anV 18 o J ^^ 260 1:1' I i n i fit III PROVINCIAL ELECTIONS. ^"n- I .suspect the bar-k et t ?, ''^f ^^^""^ ^o^' or payment, though scarcelTL th ""^'^ '"^ ^^«^« f eannot find that^Shove ever 1^ TT °*" ^^3.20, for ent. agent or, even on ShlvLT ^"^ '' ^' ^-^^P^^d- -spondent gave him .cZJltZ^T'^T'' *^^* *^« - his agent on this .special occasio7r t"'''"'^" *^ ^«* conduct and his account of thT .. 1^'"^ ^' ^^«^«'« ^'ence does not prove this oh ^^*'''' ^ '^'"'^^^ ^is evi- ^^-uml fo. sustaining rihf''; ^^^ P^ble that Shove said to him, "Can't J; ^T.^''"''^ '^^^'^^^^^ and the respondent answered -'Hel^.P'^^ ''' "^"^ ^" i-ihs's evidence of what Sh. ''"^^'^ ^'« «ould." Mr of the result of his Ztn ''" ^^''^^" '^^ ^-'"^ ^'own -t sustain shovr:: ;;:nrt- ^r^^^- ^^-^ ^- to have said or done anyth „. i^ '"''■ t^'^ ^^^^« appear authorizing the supper to hp n^7 1^^''^ *" ''^^^^ing or P-sents heordere^t :2 r'"^^ ^" ^^^t. Shove%" ;-7- J think it wouldlrln T' "P *^ ^-^Pondentl ^old this supper to be a violation T' ""^^^-"^^-^ to Eiection Law of 1868. MrShov 1 '''*^^" '' ^^ the hehl sufficient as a-^ainst J I 7 ' ^'"^""^'^ ""ght be Penalt3^ mentioned if the J- f' '" '^"'^^^^ him to the '0 avoid the election Ffitf f wr "' ''^^ ^«^' ^"t no part of the case. ^"'^ ^''' ^^'^ respondent in this f ^^ t;:^:;;^^^ ;;f ^ Andrew Washington teams^ horses and vehicles of P ^ '"^ ^"^^^ ^^^'^^ the Mitchell to convey voters to th 7^^' ^''^'^ -"^ Davie ';orsehire,furnisldth lt2 V"'''"'"'*'"^^^^^^^ '7;V«/hem to induce theTntf : t'7 '^""^' ^^ ^- The fagts, as well as f can .!7 /°" ^'^•^Pondent. '^^P^^pB^sriGri : LA.D. arrangement with "P the account for 't looked to Shove sum of $13.20, for ed to be respond- atement, that the i authority to act ooking at Shove's ' 1 think his evi- he only plausible dent's statement » pay for them ?" 'it Jie could." Mr. II he came down, 'join them, does' oes Ellis appear to ordering or fact. Shove re- to respondent's construction to tion 61 of the lage might be -ct him to the 'e Act, but not 'ndent in this 1875.] NORTH VICTORIA. 261 for his vote and influence, and did not answer the letter though he supported respondent. On the polling day. Washington, who was going to the poll, asked Hicks and Mitchell to go with him and vote for respondent, saying that he would take them and bring them back, and they could feed their horses and have dinner. Hicks said to Mitchell, " We should vote for Smith," and Washington said " Yes, vote for Smith," and they agreed to go. Washington then sent off his foreman on some business to another place in a cutter, with one of the horses of Washington's own team, with instructions, after his errand was done, to meet him at the polling-place, and hired from Hicks one of his horses to make up his team, and paid Hicks half a dollar for his hire. Washington then drove with Hicks and Mitchell to the poll. The foreman arrived, and Washington and he drove otf in the cutter, and Hicks and Mitchell, with the horses and sleigh, returned to Washington's house and got dinner. On this evidence I cannot And that Washington was acting as an agent for respondent, nor that Washington was guilty of a breach of either the 61st or the 71st sec- tions of the Election Law of 1868. The next case on which the petitioner's counsel relied was Ralph Simpson's case. The charge is that Malcolm McDougall, an agent of re- spondent, bribed, or attempted to bribe, or offered to bribe certain electors— to wit, Ralph Simpson, of Eldon, and Mrs, McDonald, of Kirkfield, and furnished and offered a sum of money to the said Mrs. McDonald to use in cor- rupt practices. I find that Malcolm McDougall wp.s an agent of the re- spondent. I airive 3^ this conclusion upon the statements contained in his , xaiai.v.. Won before the County Judge, and McDougall'n rvidonce confirms me in it. In regard to Simpson's statemc^it, M-Dougall swore that he met him on the road on iu. polling day. He had no doubt he asked him to ^te for respondent. He (Simpson) said he was going lu vote for McRae, and that he (McDougall) Hi 262 PROVINCrAL ELECTIONS ■» woald ,ote for JicRa. "»"-">''' 1» toJd McDou„ai| S:t "» ™^^ - '■"•« »* "■'" "■'■' *"' ««■ Joan of money, or offer Z ^^'""''^ '^^« "o gift or ^warrantable construction 'ontv i \^"''''^ ""^ ""' another ti„.e, and thinrwo^M T. ^i '" "^"'^' ^^ '- then^ to „„po,fc ,„ „„,,:, J^'j^^f ^^^ '»f e nght," to hold «a.d nothing to hin^CsC;^^^^^^^^^^^ «-th "that he by way of pro,„i,e or other .Tsi " '"If ^^'" *« ^^ange, «icleration. "'^'ler^vIse, is entitled to .some eon ekc.ors-„a„,J, t ' -'''''7'''' "o ''"•'/Sta j^^w to „,, ,.„ e„..,.„pTp:L:;:7 "^ '^^ ^-^^ »- *- ™^.- of John MeD al^: tr,, «- «cRae. a wiSC J """ h.s acquaintance witl ,? " "'W'" '* inferred H» «- "ng. but did not take it. * ' >*m%tii^lSG^iS'^!Sm*^_^„ 1875.] NORTH VICTORIA. 263 McDougall swore "This was not the first money I had given her. I swear I acted in this from personal feelings and in no way connected with the election." '^ ' This offer to Mrs. McRae was the only offer of money he made to any one while he was out there. He did also live in that part of the country. He was the only witness who spoke to this part of the charge, and he strenuously denied its truth, and I believe him. It escaped notice at the trial that the charge had reference to a Mrs. McDonald and the evidence to Mrs. McRae. I find in favor of the respondent on this part of the' charge. There is a further charge that McDougall, as agent for the respondent, which I have already found him to be, bribed Duncan Monro by payment of money. To sustain this charge McDougall and Monro were both examined. McDougall swore that be hired Monro to take him with his team to the Victoria Road, to drive him round. He went to arrange for teams to carry in voters. McKay arranged to take his teams out. He made no bargain with him. Nothing was said to him that he was to be paid. "I made no bargain with any one to hire their teams. I gave them to understand I would not promise or pay for them." Monro swears, "I was out with a horse and cutter at Mr. McDougall's request on Saturday, and at his request on the following Monday the polling day. I was paid upon Saturday night. Noth- ing was then said about the Monday. I took a man (one Sickles) to the polls on Monday. Mr. McDouf^all asked me to drive a man to the polling place, and .said nothing about paying or not paying. If I was offered pay I would take It. When I returned McDougall was gone " Now the only money paid by McDougall to Monro is stated to be S2..50, and that is shown to be for the hirin*^ on Saturday by the testimony of both witnesses, and to have been paid on Saturday night. This appears to me to disprove the chmrge of bribery; there is no particular charging the hiring or paying for the conveying of Sickles 264 PROVmciAL ELECTIOXS. to the polls on Mnn.i ., lA.D, Whom hf f roc* 11 " ' 'i<^'fc know uri, A XI ^ "™' // ^ ■if ^Ai % 4is *is 1.0 I.I HI 140 W ■llau IL25 no 1.4 Kb 1.6 Phntnoranhir Sdoices Corporation 23 WtST MAIN STMH WIBSTii.N.Y. USSO (716)«72-4S03 i'lri'i 2(]S I'HOVIXCI.VL ELECTIONS. [a. I). ad.led the tollowmj,' to his juilg,„ent : Drape., C. J. A.-This conchision appeare.l to .ne to remler ,t «nnece,s.sP.,y to fona an opinion upon the two .XMuaining .natters advanced hy way of recrin>ination. It >.s n.a.nly .n the interest of electors that tins t,c .juonu. accusation ,s pernutted, in order to prevent a successful petitioner Iron, ohtaininj? the vacated seat if !«> also has violated any provision of the Electif)n Law. However, in consequence of a reference made by one ot the learne.1 counsi'l to an apparent inconsistency l.e- tween my ruling in the ColK,conk treating case and the keeping open on polling day of his tavern l.y Willian, I'etes I enlarged the time for pronouncing my Hnal C..U usion until to.,lay. I must say it struck'me 'that ^t Hould be an e.xtreiue case if I should rind myself cou- pe led to hold that Peters (though oa election agent "if petitioner), being hiu.self the tavern-keeper and sellin-. >ra-'tici'». One S., who (leaired nomiimtimi as a, eainlidate by ii Reform Convention, Wits not nominated, and tliereupon, from hostility to the convention and its nom;noe, opposed the candiditte of the convention, wiiiuli there- by hud the eti'cct of supporting the respondent. At tiie close of the noil, the respondent publicly thiinkcd S. for beinj,' instrumental in bringing about his electi. convention and its candidate, and did not constitute him an agent of the respondent. The petition contained the usual chaig'.'s ot corru))t practices. Mr. Bethune for petitioner. Mr. J. Hillyard Cameron, Q.C., for respondent. The evidence affecting the election is set out in the judgment. Draper, C. J. A. — The only point of importance in this case is, whether the facts in evidence establish that Peter Small, a merchant and hotel keeper within this electoral riding, wa.s an agent of the respondent. That his hotel llllfN: I "*' i i iW 270 J'llOVINCIAL ELECTIONS. [A.n. Tl.e c.icuiM,stancc..s are iH-cuIiar. A convention of tho eleetoiN of f l. • r candidate ^„. 'thi; d i '' 'l^lf *'"'; "^ "-"'"«^^ t''-' eimseno, otherwise a,) If ^ " ''^''^"K^t- had been pete.s.a.,,.a.;;:;n;^ :^^^ nominee. He was a u-..l IL '"" "'•'"'•' ''^' *»'" P..... a,.,, «;:r,,::;S;;r "«:":::;?;: '':•""■■■■ St""' a,„l a hotel in the villa™ ,"fli '''""" '.""» "-ugLout the ,.i,ii„„. Ti:_ "3 "'" ' '"■ '■"•■ lum (In the. c„„vo ,t ,) , r, ■ "™''''' ™'^-' ■■.'is of the R«.f.)ii„ convention; there was a chan.'. U'tween the open an.l the Heciet voting, and Mr. Sn.alls feeliiijr arose from this." I liave set out this evidence with some particnlaritv l>eoause ui,.)n it is founded an ar^r,„„ent that it maintains the assertion that Small ought to he reganle.l as an a.rent tor the respondent as to this election ; that the respondent mustconsething transpire.l .luring the whole trial to put this'i doul>t, an.l not an expressi.m was .Irawn from him in his examination to raise a doubt that hi.s political Opinions were unchanged. He a.lmitted that he had a conversation with the respon.lent, hut not about the election ; that hv ha.l toM him to see y.)ung Walsh, who would give him s.)me information. The respondent did see Walsh, who iiiforme.l him of the .lissatisfaction of some of the Roman CJatholics at the ti-eatment of Small hy the convention, an.l that, in Walsh's opinion, this was favorable to the resp'on.l- ent's success ; but however well founded that young man's «)I»inion, I cannot discover in it any proof that Small ha.l become the respon.lent's agent for the election, or that respon.lent ha.l so consi.lered him. Mr. Small wa,s dis- appointed in an object which he desired an.l expected t, „,„„,„, «c,,rr, y„„ ,. „„„„^^ ^^,_^^_^^.^ '"'.--r,,,,,,,^ ,,,,,,;,,,_,,;.;;, ;;';;j~M;w » .,,,„.„-,,,,, ,;,„„;";;' ac as He,...t,„c.er at a .Ii«tant polC plajf a J"'*;" "" "Pr'oi'.tM.ent vot::i^^fciz;^^r^- -r r^^ ^tti -i;^ -^ "Pon tl.e duties of «cru Leer ,)?. a ' ""'. '^^""'e'l witl.out e, teri,,^; aUe facts fo,. the Court^Ap;^",'' 'l"'^**'"" "^ J"^' reserve.! onTh? no costs in appeal. 'swnces, the Court gave tlie .•espoiuleilt ^lONH. [a. I), tlio tliff,'i-enco hetwoin ^i'on.I.'i.t to b(. affect..,| •siiaiie*! of ft vin.Jietiv,. tl'<- rospon.lenfc was 1,0 1.S75.] WEST PETKUHOIl ). 27ry Id itioii ; ftiwl can tin. I , refusing' to ;L,'ivu tli,. wm.. l«7.-)-G. p. 20.) RO. l^KAI'EH. WH. t, wouM v.,t„ for |,i,„. * "' '"« *''^' •'^"""IKT, if |„ for lm„. *'"" ""'l'l"."".nt if ho «-„„l,l ,.,„, ■^"v„ to tu. pL'JL ;',:':,':;'■'; ''';■"' • fct-'ri'liiij,' to work if th \^ , '^ ^^'^' *''•'" '"• ^ie';:i:;>:!::';;;!r;;rrr^^"''^^ that one Fre.leric.k T 1 ""'"" * '^'''- '^ ''^'••tiHc.U,. -ondwaniof; er.: ;;;:::,r"''^'' ^ ^"^'^ - ^'^ on the votc.r.V li.st th .! ;;''"''' ''''^ "'"'''' ''Pl»'«'i''^' I-tyin...peetof fJ:.;: '""■^^''-^'•tl.pn. «*i'i Taylor a c> orll.k .' '"''"' '" »'^'"'^' ^<' ^'"■ Imvh., the voters .^tri'^'llXr-^"''''"^ not intended that th.- s,.i.I T i . ' '''""'^a^ it wa^ Mona^han. ' "' "'^' •^'"'' l'*'"'»^' Place in North him for his sunnort h.. , r 7'''",^'"- '"t'spondent asktMl minciandadS ^t,:^:f'r'"'r'"'^''^"'''"^ >"" -ork." an.l that re I", t ^7', '"'^' >'"" ^^"' ^-•.. work for the sunuuer T '" '"'"'•' ^''^« '''"' ^unuuu. ihe conve,-sati -n was talked of Kl'>ymt'nt .iuiinjr tli, '•' 'lis iiiHut-ncf for ,,,. ""\'iii^' that rcspoM. Inn ■''lliii,ir «'xiK'iiNf.s of on, Poti'iLoro, f,„,„ (|„„ '' l>'ilt.'y was then in. '■y Would vote for n- )»'11.S('8. ;'••' i!,'i.i;Lr a frau.hji.ni iii^'OrticeraeiTtiHcat. title.l to vote in tlic •<».hi.H name appeal-in- pfirttMl with the pn.- , «<' appeared; an.l i„ : ice, in •,nviiig to tli. fc to act as ajrent f(.i Ht oil,, of tlie poll- li Moiia^rhan, for tli. <>'• to vote, without 'liiii, whereas it wa- •^"I'l, noi- ,li,l I,,., ,1,., »"'»?,' place in Nortli 'ii»g the evidence ot' 't' resptjtident askoi! t'l not made up his i'lle, you will ^riw le wouhl give him ti->n was talked of, WEST I'ETERIIOIiO. 277 %nmrr work for the ensuing summer. and that he told his ^tl.en employer (Mr. (JIark), a few minutes aft..r respondent hft, that the respondent had aske.l him for his vote and had -;//;,vv/ him work for next smunu-r, which is stronger tlmn his pivsent statement. The respondent swoiv that wh..n he asked Drak.. for his voU'. that he promised so rc.iddy that he doul.ted if Drake knew him— that Drake did not even ask him " If I'm idle," etc., an.l that not a word passe.l Iwtween them ,,r, the sul.j..ct of respomh-nt's ,-ivmg him work. Several witne.s.ses were e.vamined with 1. lerence to Dmk.!s character for truthfulne.s.s. In answer to their unfavoral.le statements, a numher of persons ^ ^vviv ealle.l who amply sustained him, B«t I am .p.ite * el.'ar that in the face of the respondent's positive denial m I cannot tak.- Drakes uncorrohomted a.ssertion as sutH- eient to su.stain this personal charge. Barrett's evidence is al.so ivlied on to su.stain another I)oi-sonal charge. He swore that resp(,ndent asked him tor Ins vote, and he replie^i"i ^"-7///. ,e .vWm. I,. a,„,M ,'""'." 1'''^^'"-" '".-1 if fl... ''o^v«vor, .lo,..s not ivn.loi- if ., '' '^'"' l""^'"^'"^ n.s,. ]:'7isi..^..anass:;;;j::r:^:,r;'7^^^ •''^•t'on upon tl>o other Tl... "'"'t L.V a contru- tor veracity wa..son.ewJmt in ' Tl ? *""'" '-^-'Putati... a« not proven. ""P«ached. I treat tlu,s duu .r,. I^aley's case was L'jven un I.,r *k *• ■;■} 'M LKCTIONH. [A... 1M7.V] WKHT rKTKHIUtHO. "•'•'t.v..ftl.,.,.,.nstit,,..„,.v '" """■•' l""liil.it.M| l.v ,i;, "•■' l"'''''<-Mmi,.,..s wo,,',' '""">f'' *"> l»iv." tl,..,,, ,„ ^'""il .•om,,,ti„„ of in.li. ;^"''''l. aii.l that law will '"""i>*t"'v.l in a spirit .,f '•'••^t^ *tHt.M| in MCH.Iv l,is ^>r.My vot,.; Itol.M.i,,, will ;,'iv.' III.. v,„„. i„. '"i^'-f "'I'Ht work I „,„ """■'"'»■ 'lis ,„.o,„i';;.„ " ' 'li'l not sny to |,i,„ ■ *'•»'• "K", f wonM ^n\v ' '■"^*' til" IVSJ,o,„l,.„f, '' >*won. to uiiioiinf,.,! '•'"*P<»n.l(.nt to ,^ot 1,1, ""• ^■'"' «-l,ic'l, I,,. „,„ 't limy l,(. that th,. ''''■'"'■ ' 'I" not, how- "" ''""''t Nvl,..tlu.r tl„. ^tatuti;. refers to the i" "»• a Ial.o,er. It is "l"|>Iace,",ui,lif th,. « its t-on.striiction. it ,'■ The l>ieserit eas,. to 'ieoi.le that point.' if iiu-t l.y a c^ntin- •'■ adinittu.l an im- liis own reputation • I treat this cha,-re Junsej for the peti- ''f disposed of. 27!) Kii'i|Hri(;k Taylor was put upon the roll as an elector, ib«' ii« owner of Lot No. H, east of VVat»'r Htreet, town of p. trrlioro, and in tlir West Kidin;;. He had hoM tins pro- |H ity in .Fiine, Ih7+, havin; removed to Mi Isay in Oet., iH7:\. He had also a vote in the Kast Hidin;,'. He was ^ked to vote in that ridinjr. and wont to Peterhoro on BaMiiday, Ulth January. Hf was at respondent's liouse gliout four hours, l»ul, he says, had no eonv(>rsation with .lliiii at any time respecting his votin;;. Miit he talked fUrith KairLairn, a clerk of ivspondent, who insisted his Vote wiH),'ood; and the sulijeetwas discussed in respond- • ipnt's committee room hetween Fairhairii, Taylor and Lacy, fanother of respondents clerks. Taylor saw the voter's •^oath in the commiltee-room. That .same nifjlit Lacy.^-^t Wiom the Ketuininjr Officer a eertiticate under the 2v,th section of .-{Sth Victoria, under which Taylor could vote at the electiim, at the jxillinj,' place where he was stationed ,| he really thought Taylor had'' , ^""^''^'^" > «'"' Taylor in goocffaith to go a' scrl^ ' ' '"' '''"' ^^ ^'^'^^^ thought of getting a votelThJ ?r'' ""^ "''^ ^'■«'" «nv -Id hisproperty^ancutTtet^^^ 7'.'"^^' '' ^-' ie.%e of the voters in North Monrhl^^"" '"' "^ ^'-•• to;vn of Peterboro fo thetar ITu '' ^""^''^ ^ *''' "'hich were used at the noils « '^f '^^ *^'"* *''« ^i^ts Upon the evidence 1 ?'' *''' ^'"^'^ "^ ^^74. to vote in the VestTdlnrpt T'"' "^"^'^^-^ ^"•'" Parted with it in June JSrf w'''^'"°' '^"^' "'«* ''o n-Hed on the roll fbr that ' '' / '' '"'^ "^'"^ -- --H:;S^;t^r4'-!.i-ovote,an. upon to do so. ^ ^ ''^ ^'^^ voter's oath if called I «nd that it was agreed th^f T i , nated as respondent's I^IZ at th ^r' '^'"^'^ "^^ «-"i- Monaghan. in the Wesfuil '^7«"'»g P'ace at North boro, for the day of pol in ' J?, ! ^ ^«""^'3^ of Peter- ^ Poilmg, and that a certificate should ELKCTIONS. e- I tlnnk ,fc is likely tl,.,. o'Uhafc he was going ,„, ^t he would vote tJuuv i ■"''say on the Friday o, erstood from himself 'tha, onaghan. He went witi, at North Monaglian I uestion whether his v,.t, ;« had sohl his proj,ertv that he may have be..„ ^gent, for the purpose of '■ *'^« ""Pression tliat h- ■■ 1 tlidn't suppose li, y to act as my agent, that he asked Taylor to North Monaghan ; that ote ; and that he askfvj tmeer, and not from any ' did not know he hail w Taylor had no know- ■glian. appeals to the County ich of the wards in the <74, and that the lists the lists of 1874. ne.Iiindthatpriorto y which entitled him 'terboro, and that he t that his name was flit is not proved that ippeal. liJs right to vote, and voter's oath if called ■lor should be nonli- ving place at North le county of Peter- a certificate should Ut> IP75.] WEST I'ETERBORO. 281 .•f be ol)taine f ^ '■*''''^*''''^'«^' t''^ fi„,, ;; *'- Clerk of t,Jl^^ ;:i 7^ t,. eertifyi.,, ,...:; *'- -sa Court of Err.; and 1^1)''' '''"^' ''"^'^••'"' ""^" g'ven their opi„i„„ ,„,, ,,,tlX^f '"^^e expressed a„,l ;---vc.d. or J,ave made so u X f? "^"^ ""' •'"^'■^^■■- tJ'e preiiiises. ^ *'*'*^' decision or order i,, '^he qtiestion of Ja,.r f".s«ee was argued >! ^rrr '^' ""' '^'^'-"^ ^''-t J7th Septen.ben " ^^' ^''"''^ of Appeal on tla The CoiTHT (Draper C T A «. -"• JJ.A.) hehl tiat^het't eo^1'^"''""''^"''P^*^- -rruptpractieewithi„ thesla u^ i; r^^ '^ ^^^'^ "«t a «tanees, ,ave the .uspoudtttt^s ""'^'""^^ ^"•-"- The Chikf Justicp f h^. -- void, and report! ?rc:f'n^ '"^"^^^^-^-" --•e proven at the trial to live l"*^' """^ ^' ^^-^^^' practices. '^^^e been guilty of corrupt I I I. II EI-ECTlONs. f.VD. - theCourtofEnwan,, '«tl'er. under these Hn.Ii,,,. ' 7;-'-»Pt practice has U^., "alknowle,I..oan,lco„,s,.,„ i<^nt or agents without |„\ ' . a,id I reserve the final ">'I the cerffyin. then., A-^o'uhly of Ontario, „„ti, •P'^'^J imve expressed u„,| :;;*;"'; "p'>» *'•« 'juestio,, '"«• decision or order in ;^' by tJ,o learned C^hi,., Court of Appeal on t). '•«ng. Burton, and Patter- ""Plained of was not a '."but under the circu.i,- )sts. ''•t'«e,l that the ejection dmelle and La PJanto >een guilty „f corrupt '&V6TO., 1875-6, p. 17.) 187.-.. 1 HALTON. HALTON. 2.SH Before Chief Justice Drapeh. MiU'ox, l..'th to l.ith Mill/, isr.'j. Before the Court of Ai'I'Eal. Toronto, 3Jiid Juni- and mh Sfjjtrmhcr, lS7o. James M. Bussell d al, Petitioners, v. WlLll,S0' '■""VlxciAL ELECTTONS. 'i'. ! •1 llliiiil fv: Action, M,.. wJtL ,i^2rr° "'T''"" '"«■ " «"■■«. w„,.„ H,^„ „,. '^"^•1 '» »«y that 1,„ t,„, ,,, '"'■■ap.l.lc., without e X, !■ "■.I"""''""^ "'■ "'1-w- '"^"ofc paper was place.l n R„ ?'" *" "'"^ P«'^«^"J' 'il tor Barber; then Mr. White .it .T '''"^^^'' *<' ^''t' t -■ I^allot paper as Cyu'f *'" '"'"'^'" «-' "'a.k.i the ballot paper was han.lcn" by BrV''^'' '^^ ''^''■-- Office.-. .\ovv the 1 9th . ^ ''"■>' *« ^^e Returni,,. '":; «'i« -. : ■ ;i: Lt!:;:: ::,:::'-, T' ^"' '■■"'"■ acity to mark the balh.f r„ ^l^claration of incan- ^^«eer shall, in the : l^oTir"'' '" ^^'^"^^ ^^^"""^ ' e-»«e the vote of .such pe son IT ' "f^^ ^""^''J^^^- P-Pe»- in the n^anner di^ Kv Z"""'''^' ^" ^ '^^"'^' ^HUse the ballot paper to ben, ^ T P""'^""' ^»^' '^''all *•-••" of .leclaration'is W^en in Sol^ J", 't '^"°^ »'-• A -^ attestation clause i? X „ ^J". t.'' '' *'"^^t'-' V the Deputy Returnin^^ffi :..%? ^^f ^' *« ^« ->^''l " «f ction 10, power is given to ttn '"> •''-''^^"» »' •^"''- ' e-ther personally o^ th'u.h W^^^^^ f*"^"'""" O^-,., -«ter the n.ode of votin! anottlo affcervvar„s *"«^;.|fc ^vas nearly on,n,; .'•^•lat,vetohvo,„e,.ti„,:;. ave no connection witiuL' ' t« «ay that he thMu-l on., illiterate or otherwl '». ot .narking their l.u||,. >»IJ neither ,-ea,l nor wri,, 3 CaarJes Connor, wlm „, «t«'l that he shouM act f„. «Pon.lent. The Retun.in 111 «aw all that pa,s.se.l. Tl," rs hamlhy the Retur„i„ 'tnte,l he H'ante.1 to voj •J^ tl'e pencil and mark,. expre«,se.l he wishe.l „ ••White says l,e helie\v> Ban-y to the Retui^nin. t the Ballot Act provi.lj '■ a declaration of incm 'J the Deputy Returni,,, agents of the candidate' 1*0 marked on a ball.t such person, and shall J m the ballot box i e;JuIeCtotheAct,ani ^^f^le D. to be signd liien by section 8, sul.. ^uty Returning Officei; 'erk, to explain to the J colors in which the •e printed on the ballot reiving and enterin. It to a vote, as well a! ' or affirmation, when take the same, but the Deputy Re- 'nn these official acts, 1875.] H ALTON. 2N7 e.y difficult toV,VCUL ELECTIOXs. %M ^^''tl' C<)M.s..,,,i,.,„...s f.. «,l • I ^'*"- --'^ --;;;. j;:::;!:;:';:;:r-^''»'-, .,, •nor., r..,..„al.lv ,.,,,,„ , .^'^^ 'A."...mncv ..,,,,t ,., ^ ;''••--';' not vc.nt„.i to an tr '""'-^^^ ^ ;f^'- "f ,„o„..v „, valuai. '"""''^ '■" ""ikin.. an r'""'";" ^''" "'^^' "^'-« Na u rr-'''^""- -"'-->.•: .V roi t/,e county of Halton "''''' from this .looisi,,,,*!. ofA„,«u. ""'""""•■"■'™'»|.p™l.,|,„tl,ea„,, Mr. Blithe Q n /*., HrcjfARos, C. J_v\r,. I iiitfifere with H,. " i • ""^ ^'"■"'^- «'e eat. . '" «.^- f«-» t,:!;u'^;,T;:;:"""™'"»' ^-"wV'St '' 7/ "'=""« "iclfnco, „,„l tl' ; """"-■■-^^■-"•l.t.ntl.c.e ^«o„ ., to the n.aetfo^ &: '"« "' '"^' '»™e„ cS " "■'W not u,;g„d before the lea™. 1 .>, • IrLT"" r *» -"*sion that L ' '"^'^ »»' ^ '^ent It she M'ouJd iinl 1X7.V] H ALTON. 291 keep her huMl.ai..l from v.tinK HKninst him. that this was n.,t hnW'ry within the iiH-aninK "f thu .statute of this Fro- vincf, M2 Vic, cap. 21. hw. (i7. The question is mis...| hefoie thi.s court for the Hrst tune; an.l it is conten.le.l that there nmst W- something named as the present to he ^iven. or it wiU n.it he u pro- mise or offer of a v,d„M: mmldmilion (within the mean- niK of the Act) to Mrs. Ilohins to in.Jnce her hushan.l to vote or refraui from votin^r at the election. It i8 not in terms an ..ffer of money. Does it imply that sometlnntr of mine is to he given if the promis.- or offer IS earned out ..' an.l if so, is that not what is meant by a promise of money or a valual.le consideration ? Not a promise of something which has no appreciable value such, for instance, as to make a la.ly one of the patrone.s.ses of .some .".xhihition, where no on.- was to receive any pecuniary heneHt hut all were t.. pay money; or huyin.' a ticket to admit a per.son to grounds on which a pic-nic was being held, where each person attending paid for (jr furnished his own lunch ; .)r to make an elector a member of an election C(Mnmittee, where he WouM receive no emolument, and would probably be compelled to labor, and might be sulyect to lo.s,s. When this offer was made was it a mere pretence ? Are wo to presume the respondent wished Mrs. Rol)ins to umlerstand, as she appears to have understood, that she was to receive a present of some value, when he intended to give her something of no value or no appreciable value ? This would be presu.uing a certain kind of fraud on his part, and in his favor to relieve him from what would be the consequence of his act, which I do not think that judges or courts usually do. One of the earlier statutes on the subject of bribery, 7 Wm. III., c. 4 provided that no person to be elected to serve in Parlian. it " shall directly or indirectly make any promise to give any money, meat, drink, provision, ;wes.u/, nward, or entertainment to and for any person having a voice in the election, or for the use, advantage, benefit, fl9t PHDVINCIAI, Er,EtTIf)N.S. fA.J emplojpiwiwnt, proHt or i)r..ffiiia.nt nf » Ou • in Pailiaiiiciit. Ill ir ;«'" C.,i,. Stat. C'ana,l,i, •>-> \ piovi,li,,| that no can li'latc .shoul.l .1 If. irt'c ^ap- '{, sec. Hi. •t'y i(li t-'mploy any „„.anN of conunti,,,, h.. •• """•«y. ofHce. place, ./ 'rlr J *^'''''^'"'^ """ "'' note, or conveyance .I^' la . ' " *"^ '"'"•'' ''"' '" --'-1' he t]n.e::;;*a!:; t^^^^^^ •fcc. with intent to coiTunf .... I '''^ '"'>' ' '' ' «uch can.ii.iate, :rc;'':''''''"r '"*"'• ^^ ^^^^^ ^••"' "ov,sl.all |.e .support ,, ^^'1 '^^''"'"'' '''■*"" ^««»K : ^'^i"-ent..t.!JacL:.::^iS'rfr'"^'^"^^- any ••ep.-e.sentative returne.l h P • ""^•"■"' A"'' '^' "f usin, any of the u" I::':'''"' ''^ '^'•^^^''''" ^-'''.v hi« election .shall he .lech e. • ^m""'"'' '^''^ ^'^•^^^'•" ^•^-n.ein,acan.!-tr;'d;r^^^^ ■Parl-.anjent. ^ elected tluiin^r that ■« Vic, cap. ,« . ::,',; ■^:^:y «- I-P. .St.t. .7 a„:i other valuable eoasideration ot. t' o V """^^ "' 'noney or other valuable consinable." tje intention of the L^^L l^'r T'^ '''^^ ^ he prunary object wa.sthat vo e^ iL 7? '^"° ^'^"''^ the conviction in the mind of fh ? '"^ ^'^^" f'-o'" supported a candidate that he ^7.^ "' ^"^ *^'««^ ^^ho -tuat^.., and that th ^Ib, „!?" ^^ P--n for the PuiJUc mtere.sts would be best HAUOX. sHved l,y electiii^r l,,',,,. Th« evil to be Mipportin^f a caiirlidatf, not ptTMOii, liiit for "c/nis(l liirri" 2on corrocttMl wa.s tin- "liduttj IwcaiiHe of •miti.se h,. wa,s the proper supporting of the can - Tl ;)ersonal benefit to himself; tl of the franchi.se not for the pnl.iie goo.l, but J (I Ml le exerci.se 'or personal • . ' ^' ■'"•i "UK lur iieixona in money or money s worth to the voter or he per- son m.lue.nK the elector to vote or not to vote, was v I at the Legislature wished to guard against. Then what vvas the n.otive presented to the mind of M.S. Rouns, „i the case tn.der consideration, to in.luce her Lusband not to v^,te against respondent >. It was tha" .'l was to receive so.ue substantial advantage from it, eithe,' - money or property-son.ething of value. She was . have a ... ,r..na The evidence showed she consi ag„ut,.y value, but of real value that would be a,,reci. A Vhat occurred woul.l well justify her in .supposing a the respondent mtende.i to give her ,son>ething of alue, and that he uxtended to give her, in the langua.^e the statute, a valuable (not a fanciful) considemtio" mg Uiat behei. tned to induce her husband to abstain fron, So that, in fact, the evil which the Legislature inten.led to prevent actually existed in thisca,se. 'xhis won.an wa ^^^PM by the otter, and she endeavored to exercise an influence over her husband from the desire to ^ the F..^cnt which had i ,een promised her. I understand when a corrupt promise has not been arned out. that the election Judges in England-to use U,e language of Mr. Justice Willes in the Lichfield case (1 UM. & H. 27)-" rcjuire as good evidence of that promise 1 egal y „,ade. as would he required if the promiL were t r .r'' *° ™''*'" ^" "'""'^ ^^' ^^'-'^^ (the person to ^ on. the proMuse was n.ade) against the respondent, upon Barlow voting for him, for not procuring or rying t; pro" cure him a place in <^^>.» i.-^.-;*..! -• ^ ^ P hcspital. ■ :*<; 294 PROVINCIAL ELECTIONS. [A.t). ^»t I do not understand tha^ f)i« r.,. • for which, .e„ itnotp Jiht '4,h™ZrP '^r'" ot the pron.ise requires tn 1„. ..f /. '^''*' ""'"•" are concerned thatll 'h ,"""'f'«''"'3-. «n"• «»! o«cred, an., in !;hr;r , r,d :r ;c: aT' *' "' sustainint: the vitnv n.v.c i ^'^ ** ^^"S ^^'ay in butthe,„^,e:„ :;^::x:\r" "^ '^^^^ ^-^^p-'-t, .the other way. '' *^^"'^ '''y ''^''^^'' ^^e, I think, I quote at some lend-Hi th^ 7 Judge who tried th7y *^^^^"^"^g« °f the learned which Co]. D Ik n was '"T" ^'"'^'"^ ^'■^'^-«. in granted by Col Deakin to r V " *" *'^^ P"^-^'^'^'^' the W.s'^^ease.I I "^'^ " *^""t f« «^-t rabbits .; it was to those tenant a ' I. n"""' ^''^^ '^'""^"'S that -quired by that conte i'T.W ";? "'" '''^' *^->' ''-' bio of being represented I V . ' «-^«v.^/.m, capa- I cannot eiinL ", It ! "" T"^' ^''^^-- ^^ eouL that I should do si it " o!r ^''^^"^' "«'' ^« ^t neces.sar, an-ive at the conclasi 1 J ftTr"^ ''''' ' ^'^^^' '^^ortli, and that the resin 1 . '"""'^ ^^^ "''"'"/'v Pa^'ting with ^onj^h^^: :r::r^^'-:'/hat he wa. hands a source of cr,eat eni 7 ? ""^'^^ '^« "^ '"'^ wise, which he ^1 toT "' " ^^^^^•^"^^' ^^ ^tlKT- the effect of th^Xt '^"^"' «»^' thereby destroys wa. formerly holdirTl:!^^^^^^^^^^^^ *he tena,. that it was a -cession rcHifin"'^"- '''''^^^^- Imustsee C ''P'''''^^^^'«^'al„e. Parlia„.ent intended to nu 1 '"'if """^^ ^^^ ^^t «f and influences at an electbn i "" '" ""'"P' P'-^^tices construction of mine the etfe t oiit r?"'^^'"^ ''^ ^'^^ Pi-oper effect to it '*' ''"t am givino- all which I have arrived i.s. that the givin.- S'!,;«"^^"-» "^ oivmg ot this conce.ssion 1875.] HALTON. 295 to the tenants, under the circumstances, was either a pro- mise or a grant; it ivas not a legal grant, because that would require something more than a parol expression • hd when we are dealing with an eleetion question, we must deal luith the motives wMch are apparent, and which appear tVom the Act itself. I cannot go into any intention of Gol. Deakm. I must be governed by what he said and by the mferences I ought to draw from wliat he did and what he said ; and hy the inferences drawn by those persons who were present, and who heard what he did and what lie said." Here it will be observed, that even had it not been for the Corrupt Practices Act, Col. Deakin could not have been by law compelled to make a legal grant of the right of killing the rabbits, and could not have been sued for any more than the promise made in this case • but nevertheless the promise was considered as equally cor- rupt. Other expressions, I think, warrant the conclusion that the apparent motives of the party, and the inference from the Act itself, should influence our decision. My brother Patterson has also drawn my attention to the case of Simpson v. Ycend (L. R. 4 Q. B. 628). That was an action to recover a penalty for bribery, and it was virtually decided under the Imp. Stat. 17 and 18 Vic cap. 102, sec. 2, sub-sec. 1,. as I have already mentioned' similar to the section of the Provincial statute under which we are called on to decide the case before us. The pro- mise to the voter was, " I said he would he remunerated for his loss of time." The learned Judge who gave the judgment, Mr. Justice Mellor, said : "We delayed givin<. our judgment at the close of the argument, not l^ecause of any doubt existing in our minds as to the answer which we ought to return to the question put by the Judge of the County Court, but because we were assured by the counsel for the defendant that the election judges had in their decisions upon the section taken a view differing from that which we were disposed to take. Had the fact been as suggested, we should not have felt ourselves s 296 PROVINCIAL ELECTIONS. [A.D. Jesimble to ascertain what Irn i ^"* ^' thought it P-ssec, ,y ,he., withTeftCra V" '"* ^^^" - .then; duties had necessarily ,^^,1' f"' ""''^ ^^"«h 'nquny, we find as wp J ,'^'^^ *hein familiar. rjpo„ J-lges have e.^^LTnTo^^J'^' *^- ^-C elusion at which we have aS Tr" *.' *'^ ^-- upon this section, so far as i t r J . ' ^^servatioas , -^ «-W merely expressea ! " '" '-^^ ^^^''"'"-^ caution as to the quantityTn"' ch/ ! '' ^^'^'^^^^ -»^' by which such an offer ' or " "* ^'^^ ^^^^«»ee a-s proved." '^'^ ''^ P^«""«« ' should be considered »nder the circumstances anK)unf , "' ""^'^* «^'^"^' did, procure., or to endeavor to l^ '" ^«'"' ^ P^-'-- to consideration to a voter 'in ^7 ' '"""^>^ ^'^ valuable at the election in ,uest o„. C-m" "'"" '''" *^ ^^^ for loss of time ' would necessL 1??'''"'' 'remuneration hension of the voter that itZ^T^'^y *^ ^he appre- person offering, or by his nro. ''''''">' ^^om the consideration which iLuHoT^.f' ""'^^ ^^ ^'-hle any assurance of that kind tlh ?' '^^^''^ ' ^"^' «tood, ^s calculated to operate n.," "''^■" ^' '^ ""^er- - a direct inducement'o te T V""' °' *^^ ^^-^or After referring to r '^ candidate." .^7-uudge;:Cd^T^;tt nterest that electors should b irr^"' *^ ^^^P^^lic any disturbing influence o any l '"1 ''*^ ^^*^«"t selves bound, in construil the 5/^'* ^'' ^''^^ ^"r- .-'ve full effect to the pla in'mt ' '" ^"^«^'«»' to '-^ to apply the, to'tirsubs ::;^'' "^ ---^^ --'. -^^/-^^^mm«^..,,,,rf.,.;^^^^^^^^^^ facts of the case, '""^ '"^'^ or expression in ^Z^^"'"''''' ^" '' *'^i»- conveyed." "^ ''"''^ t^^e promise or offer may U 1875.] HALTON. 297 Here we have no doubt that the words used did sub- stantially convey to the mind of Mrs. Robins that if she used her influence, as the respondent wished her to, she would, in the language just quoted, receive money or valuable consideration which she would not otherwise obtain, and this was calculated to operate on her mind as a direct inducement to do what the respondent wished. Our duty, then, is to give effect to this statute, though the consequences of our judgment to the respondent \\?11 be so very serious. We are not at liberty to fritter away by .subtle distinctions an Act of Parliament. The same learned Judge whose language I have quoted above, Mr. Ju.stice Mellor, in one of the recent cases decided last year, the Bolton case (2 O'M. & H. 144), uses the following language on this subject : " I take it to be the duty of 1 Judge to take care that he does not fritter away the meaning of Acts of Pai-liament by any subtle construction, but to give a bold (but at the same time cautious) decision,' which .shall further rather than defeat the object of any Act of Parliament of this character which he has to con- strue." ^ We are all of opinion that the judgment of the learned Chief Justice should be affirmed ; that the Clerk of this Court should certify to the Clerk of the Legislative Assembly that the said respondent was not duly elected ; that the said^respondent was proved to have been guilty of a corrupt practice at such election, and that such cor- rupt practice was by promising to Christina Robins, the wife of Nathan Robins, if she would keep her husband from voting for Mr. Beaty at the said election, he would give her a nice present. , There is no reason to believe that corrupt practices pre- vailed extensively at said election. We direct the respondent to pay the co.sts of the trial, of the petition, and of this appeal. Strong, J.— The question of fact argued on this appeal must, I am of opinion, be held to be concluded by the de- 298 fBOVlNciAL ELECTIONS. «'«erving the de.neanor of thfvvl ^PP^^tunities of ^ J«%.uont a.s to their tru h u n T' '"*^ '^^^ *"'^'''»^"g cedure of appellate t'Sl n, r'"'"^'"'' ^" ^^« P^O" oftheeu,pi.e-theHoZ:fl^^^^^ I-peiKling on the voracity oi ' tn '^"''*'""'^ ''^^^'^ ^- given to then,, are concL' n T'"' ^"^ "^« ^^^^it to ^^ the court of «rst in^tc 1''" f'^ "'^''"^^ ^^'^^e Judge '"ony is given. ^"''' '"^ ''^^'^'^ Presence the te.sti- This rule wa.s acted on in thi. » . • and the authorities there S;:: " t""- *« ^'-t case cases of Pe^, ,, ^.^^^ ^ '''^i ^o I may mention the ajso refer to the judgn nt of P f ' "^r"'' ^•^' ""^ ^ ^o^l'i ^'V. V. £ertran,l (L. Rip p S.'^.'r't'' ^•' '" '^e case of as compare.! with oral evident f^'^^' "^ ^^'^'^tten evidence without its sprit IVV "'^ ''''^ ^ody of rtr---'^t4::;tde;r^,^: discovered by the researrof't'':^ ^^.''-* ^^ ^- «^'>). «hows that we must ho d "L t ,'^'**"-^"^' ^'•'^-"'v offer of "valuable consid ration '.^ •'''" " ^''^'^'^^^ -' section 1, of 32 Vict., dp 2 « ^'^ ''^'*^"" ^7' '*«''- reasons which I do not'^th Lk Tl^''''' '' "^^^^^' f- length, as they have been alreadv I T?'"'^' *" ^^''^ ^' of the Chief Justice, I shoull S- "^ '^ "^^ J»dg'nent »ot had the satisfaction orlr:,;^' '^'^'^ '' ^^' h^' supported by the hia-h «nH ^^^^^'^^ that our view was Q^^en's Bend. ^' '""^•^"*>' «^ the English Court 0" -i -5 fe:t;t^2Sb"'"^»>e dismissed with tl^e Chief Justice. ^^ ^'' ""' ^^^'^^^y indicated by tried the petition, • l^e given to wit- %e in open court; ' opportunities of 5. and of forming li this Court doet ished in the pro- 'le highest couit questions of fact ind the credit to ing of the Judge ssence the tesS- jhe case of Sav- ion to that case ^y mention the •7), and Bull v. ^•), and I would in the case of aks of written dead body of ipplied when of those who 1875.] HALTON. 299 Burton, J.— I fully concur in the judgments which have just been pronounced. The only difficulty I have felt is as to whether the words alleged to have been used come within the (i7th .section ; but when one regards the mischief which the Legi,slature intended to deal with, and the words of our own Interpretation Act, which declares that every Act shall receive such fair, large and liberal interpretation as will best ensure the attainment of the object of the Act according to its true intent, Tueaningand spirit, it is impossible, I think, to come to any other con- clusion than that this promise comes within it. To hold otherwise would open the door to every kind of ingenious evasion of the Act. The Legislature has endeavored to put down an evil which prevailed to an alarming extent throughout the Province, and to meet every possible case of bribery or other corrupt practices ; and we are bound, I think, to give full effect to the meaning of the language they have employed, without, as expressed in one of the cases, rais- ing subtle distinctions or refinements as to the precise words or expression in which the offer or promise may be conveyed. A "nice pre.sent" must have been under- stood by both parties as something of value, and would convey to the mind of the party to whom it was made, that 'f the elector would vote for the candidate he would receive something, and could only be so understood. Pattersox, J.-The finding of his lordship the Chief Justice of this Court, that the respondent promised Chris- tum Robins a nice present if she would procure her husband to vote for the respondent or to refrain from votmg, is clearly supported by the evidence. After hear- ing the witnesses and seeing their demeanor, and testing the value of their evidence by a consideration of the cu-cumstances which tended to give probability to the statement on the one .side, as against the opposing evidence ot the respondent, his lordship arrives at the conclusion tiiat the charge is proved. 300 PROVmciAL ELECTIONS. [a.d. tins does not necessarny neanTh J ""' '' ''^ ' ^^^ opinion fonned of the w tnesjs ^Th "1 '^ "^""'^^ *^^^ and hears them Tn , ^^ ^''^ "^"'^^^ ^ho sees .lependsnot ,uc u onTh ""r /'^ '"''"^ ^^ ^ ^ statement as a,Jn Zth r^t ^^ '^'^*^^^^^^^ *-- eU to individual witnesses I; 1 .,' ''''''* *" ^^ ^^^^^^J" w facts which ^r:::;;zXi^'o ''''''''''' •'ependmg on such consideration. ?n " ^"^^tions •luently reverse the findTn! 7 ' ^P'"^^" '^^^'-^^ f^e- there is eonflicti^^evidtnllrwh '^'^" ^^^" ^^^e on the credit mven to n"? ' ' '""'^' ""^^ ^'^P^"'' --•t may, by the repC ^f th' 77"^' ^'^ ^PP^"-*« witnesses, be enabled ortieltfil^" "'^ '^^''^ "- I^ord O-Hagan in the case oVr ^ ^^ ' ^' '^«*'««^J by f So. App. 124), where h 2 "rr?"'^'^-^^- (L. l[ have been fairly pressed bwi! " ^' ^"'^ q"««««n we Ordinary, who 17*1:1^1^.3""^"'' f ''^^ ^-' and judging of their veracity ^1^.^ "' "^^"^"^« himself, should not have his 1? ";.''''"'*""^ before and undoubtedly the ZleZ ^^""'^^ ''^ ^^'^e ; much better ascertl^d L hT T 'r''"''"^ -'^ ^- those who know it o^^ty eTorrVriV' *'^" ^^ Pecuharity i„ the present caseThat th T ^^ ^'^ '^^' has put us somewhat in his own n I ^''''' ^^^'"^^7 fo to speak, to see with h^ oTn C:?; -;| ^^^led u^ ""pression produced upon him hwt ^' '^^^'' *^^ anddescribesheras'agWo '1^*^' ^""''^"^ ^^'"^■^'^' her testimony generallvwitbTn^^^^^ he speaks favorably of" hex aun^ 7 1 truthfulness,' and P-t in the transaction is of gr ItT " "''"^^^^^ "^-^ we are concerned directlv nnfZ^T'^^'''''- ^^''^^^'^ Lord Ordinary, but with th!t wT . *'^' J"^^^""^»* «^ «>« ^-*ter we ought to affii ^J^' •^^^-"'-' ^t, and the [a.d. flecisions upon IS of law ; but to criticise the iclge who sees ^'ing of a fact ittached to one it to be accord- per deduction On questions te courts fre- Even where 1 may depend the appellate ho hears tlie IS noticed by liwiton (L. R. ' question we lat the Lord he witnesses 3anor before ^ set aside; 'onycan be it than b}-^ lere is this 1 Ordinary enabled us, states the il witness, >, who gave Iness,' and ess, whose Besides, 'nt of the t. and the ied of its Por arriv- lordship s <'amily 1875.] HALTON. 301 after carefully balancing the reasons for preferring their account of the transaction. I have, however, had strong doubts whether the pro- mise to make a " nice, present " was an offer of " money or valuable consideration " within the meaning of section 67 of the statute. This point was taken by Mr. Blake in his argument blifore us, though not taken before the Chief Justice at the trial, and we were referred to a dictum of Alderson, B., in Cooper v. Shide, which is noted in the report of that case in 27 L. T. Rep. 13!), and 2 Jur. N. S. 1020, though not in the report in 6 E. & B. 447. The report in the Jurist is : "Alderson, B., added : I enter- tain this opinion also, that the words ' money or other valuable consideration' ought to be construed to mean ' money or other valuable consideration to be estimated by money' " I have not seen any case in which any Judge or court has actually decided that any offer or promise which came in question, was not an offer of money or valuable con- sideration, except the decision in the Exchequer Chamber, in Cooper v. Slade, where it was held that giving money to a voter to pay his railway fare in going to vote was not giving money to induce him to vote. That decision was, however, reversed in the House of Lords (6 H. L. C. 746.) In the Zaunceston case (2 O'M. & H. 129, 80 L. T. N. S. 823), Mr. Justice Mellor held, that an offer by a landlord to his tenants of the privilege of shooting rabbits on their farms was bribery, because it was a valu- able consideration, capable of being represented by some money value. If the question had been merely whether an offer of a nice present was an otfer of something hav- ing some money value, I should not have hesitated much as to the correct decision ; because I think there can be no doubt that such in offer would convey to the mind of the person to whom it was addressed, that something which was either money or money's worth was to be given. My doubt has been not as to some vnhie being implied, but as to whether the words " valuable consideration," which are 302 PROVIXCIAL ELECTIONS. [A.D. technical words shonlrl nr>f • receive the .sa.ne' ct eti n aTtZt Jf ""^ •^*^^"*- reference to contracts. ^ ^"^'' '"'^""''^ ^i«> The present statute takes the nln^o ^* re^arJ to thi hi" 'n T"T"" "' '^"^^•■' "^^'-^ fact that th woT' "J Tr '^"^' '' '''^' ^^ *« «' recognised n.eaninT n 1 ? ' «»n«ideration " have a as would ordinarilv support in n- ^ ««"'^'^'eration no.' in question .Is oSeL'ite i^^^ ^'f^ ^'^^^ ^^'^' that condition. ""^nnite in its character to fulfil The adequacy of the consideration f... i • , is made, is u.suallv r^n^ . Z'*"™" ^^^ ^^'Jnch a promise tliere is no airrppma«+ u , ■' i'^^^'^^ - out where accepted „ffe;:;rrx:; if::: ir-f^ -■ - by con,ent_it would seem th^t . ■ *'"'?'°''«. 'o^m entirely indefinite i, „r ""''.'' "'»"'*n>tion which i, able ooLiderallon « """ "''* """ >» «»«'' « " valu- ««," i. too indeflnit t? J ,;!* '•"; °- fo" ■•« for a gn™ntv(Chittv'' Cont M . ^°°i' ~™«'c«>Won 25), which d^tVin ;p::t Jh^ z 1 1'-- '•''■ <>' ■nt- the judi,.n„,nt of hiifrm ^,t„„ B ' ^J" «"- V. «», (S H & N •!i)qi . »"" ""atson, B„ m Oltla-sMw che,„e/ch.; "■h;:*^ir;:"j't^r r - '"^ '^^■ «ne volume, and it loe, not" 1 to h' d "'f? "'' "'* of the Judge, who gave aZLTi^^T'"''' '"' '"''' Geo. II. c 24 whi,rrii i'; ''"'"ation in debt on 2 '-at the dell' i^lti: ''l T ' "' *° "^'"" held bad in arrest of ind^r? . ** °' ""^'"^'' ™ particular .speci^'jj'rfwtd «, ten"' ^''^^^ "■""* 1875.] HALTON. 303 liwhing the position that the declaration must state the means by which the voter was corrupted. The rule of construction stated in Lord Hwntingtower v. Ganlhicr (1 P & C, 297), viz., that " it is not for us to say what might be politically desirable, but what is the pro- vision of the Legislature, and that in order to answer that (juestion we must resort to established rules for construing acts of this nature," seemed to me to make it proper to treat the section as I have indicated ; and I do not say that that view is incorrect. But the judgment of the English Court of Queen's Bench in Simpson v. Ycend VL,. R. 4 Q. B. 026), is so very much in point upon the construction of the English statute, with which ours cor- responds, as in my opinion to govern the present case. The promise in that case was that the voter would be re- munerated for any loss of time in going to vote, and there was no acceptance of the offei- on the part of the voter. It was argued that the promise must be of something tangible, and that there was no promise which, if accepted, would, putting aside the illegality, have supported an action. The judgment of the Court was given by Alellor, J., who said : " We cannot doubt that the words admitted to have been used by the defendant, viz., ' that the voter would be remunerated for what loss of time might occur,' did, under the circumstances, amount to an ' offer or pro- mise ' to procure, or endeavor to procure, money or valu- able consideration to a voter in order to induce him to vote (at the election in question). The expression ' re- muneration for loss of time ' would necessarily convey to the apprehension of the voter, that if he would vote for a particular candidate he should receive, either directly from the person oft'ering, or by his procurement, money or valuable consideration which he would not otherwise obtain ; and any assurance of that kind, which can only be so understood, is calculated to operate on the mind of the elector as a direct inducement to vote for such can- didate." If any authority were required to induce us to adopt this view of the transaction in the present case, it [IlL'li 304 PROVINCIAL ELECTIONS. [a.d. is supplio,! I)v that r.t n '^ '■™ the prc,o„tU" l" ^^''!'"8'":'>»'''" "■ principle any .U»t,„.,,i„gi„„,.„„„^. Vlktni, ; ™"'7"''«'" l.e conveyed *" P™"'"" <>r olfer ,„a,. <'"^"''™"''^'i'''-^<«'».,I87o.(i,p.8.) \\ "im% NORTH ONTARIO. Before Mr. Jc.stice Wilson Before THE Court OF Appeal " CbASKILL Af./,o«.,, V. TttO.MA,S PaxTON ,„ ,. ^fspondent. A meeting of the electors was hGM„f * ' ""« VV., a voter, who wa« i,, Z 'noiiey of a lot of xZ.T^. ^"''''"■^ *" the Crown fo,. ti. [a.d. > H. L. a 746), lie in principl,. ' to tho public > vote without t we feel our- i«stion, togiv,. s used, and to case, without to the p'vei.se or offer may led. 5-6, p. 8.) 1875,] NORTH ONTARIO. 806 'axton, ami Lata of nU of an old I candidates up and the ing off their the people, espondent), bailees, Was he purpose • B treating, Hindent at purchase snt of the k sliarply the sup. Held (rever»in({ WiUon, J.), that what oociirroil was a brutum fiilmni, or an expreHHion of opinion upon a subject on which every one was com- petent to form an opinion. Acts of agency and tiiu decisions hearing thereon, digcusseil. A ciiargo of bribery against the respondent, where the evidence was un- satistactory and repuunant ii itself, and rested more on suspicion than on clear positive proof, was held not proven. One M. was a member of a townsiiip committee, organized by direction of the convention \yhich nominatocf tile respondent, and the work of the election was put into the liaiids of these township committees. M. can- vassed his school section, anil had a voters' list, which was taken from him l)y the committee on the allegation that he was not doinx much. The respondent never asked M. to work for him, but M. asked the respondent what success he liad. The respondent had no one acting for him except these committees and some vohinteers, and ho never objected to tlie aid they were giving him, nor did he repudiate their services. IIM, on the evidence, that the respondent was responsible for these committees, and tiiat M., as a inemljer of one of such committees, was an agent of tlie respondent. One H., a voter, held a claim against the respondent, and M. alrove named, and another, for five years, which heliad been endeavoring to procure payment of. When canvassed at the time of tlie election: lie sUted tliat if he did not get it settled he wouM not vote for the re- snomlent. M. induced the respondent to give his promissory note to H. for the debt, but did not give the respondent to understand directly or indirectly that the note had anything to do with the election. ^^'i-b \- ''''i** '* is always open to inquire, umler statutes similar to the Election Acts, whether the debt was paid in ac(;ordance with tlie legal obligation to pay it, or in order to induce the voter to vote or refrain from voting. 2. (affirming Wikon, J.,) That on the evidence, the motive which induced M. was that of procuring the voter H. to vote at the election, and that thereby an act of bribery was committed by M. as such agent, which avoided the election. In peual statutes (luestions of doubt are to be construed favorably to the accused, and where the court of first instance in a quasi criminal trial has acquitted the respondent, the appellate court will not revewo his nndiiig. The petition contaijiod the usual charges of corrupt practices. Mr. Hector Caincran, Q.C., and Mr. y. F. Pnterson for petitioner. Mr. Hochjins, Q.C., for respondent. The evidence is fully set out in the judgment. Wilson, J. — The petition charged the connuission of corrupt practices by the respondent himself, and by him through his agents. I .shall dispose first of the charges of treating, beginnino- with that which is contained under head of number four. 80A ■y at the outsot r iUM .1 Ij '""''^ ^^ ^^"'«^V. I ...a, ^-ti". ^oun.! t.. have Z:)^^^^'^ ''''' '-- to ,... cent toavoi.l the eh,ctio,.. i)id ! "^ " ""'"'■^' ^»tH- 'f erente..tai„nu.nt at hi. exp t'l!:! '"-"'-''•ink o. « ectoKs as,se.nl.le.| for the pumis , '"'' '"•'^'""- "^" o';etion;^.tthetinK,in.,«esE "' ^"""^'"^' ■^-'' Ihe facts vveri' fluif fi, WHS a la,..e Htten.ia,.er hot'l. " ,n- \ '""'^ ^'''' ' ^'"•••'■ li'Hny of their suppo,,,^^; A^e. T "''' ^"•^' ^''-^>- »-' ^o'ey took the llllutV^rn/tcf , /::,;rr^r '"'/■^"•^^-' -'-• local nmtter, which he coc^v,,', '. '"'"''"^' *" '^'-"t to his pre,iu,liee. He JscI 1 "^'" ^I^'""'' P--'n to vvhon. he ulln I , „ "''"' '' "'^""-' ^''^' --change.! between then. ul J ''r',"'' '^'''^' '>'« was ['•• Pateraon (a supp W tj r'' '"^'^^^ MeCVae, an,| the sohdtor for\h ?''•"'"'" '^'^"'"'''^t:., .^aviU M. Can., the vrU^i^Jt^:'^''' ^^^'^^^^ ^'> would not be better to close the/ .• '■'-'^P""''«nt, if tI.ou.ht not. and the people "on ' ^ ^ ^'''' '^'^'^' ^^ Pater.son v-as speakin! DonarB.' "' "''"' *'"^^- ^s '■-potulent, called out < tCt ' f "' ' ?''''^"'^- «*' tho was made to turn Bruce out a„ '' '"'' ' ^''^"'^''•»' ^'^" «'-ved down upon the I'un ri "" ''""^* ""^-"^' t'.en jun^ped up and talked oH-d?"'' "' *^'^ •"''^«"^' great disturbance, and a 1 .'f T'^"'"'"'^' ^^'^^ - parties began pulling off C coat^^^' t"! '^' '''''' ^"•' "^rf en up. Christopher Moo said\ ''' T''""^ ^'^^ n..ht when he got to the mee tin^ wLnT ""' *^" '' ^ yards of it he heanl an awfuT.. M'"' '^'^^ ^^*''i« •n. and was told not to .« "n ! I /r'' ^' *"'^^' *« g«^ was no meetin.. there -^f J?^'' ^''''^ '^"'^J- Th^re -ded^-IgotonltXriS'^^^^^ «^ *^- P- to me ; that it was a shan.e to fi^h fo 'V'^: P^^P'« to con.e ^v^o-'anot«ghtforthen;A\^;^-:-^'^^^^^^^^^^^^ 187.5] NORTir ONTARIO. 307 shako han.lshav.. a .Iriak. an-l ^n ho.no. Unuov was -...hton;I,,i.,,.,,,,^,,,i, Mr.Pat..,..son,'i;;\w who wa« the porsr,,, nanu.l l>y M... Foley), a.ul otl..... aul , was a ,.,o.. thing I wan there, f.,,' if I ha.l „o l..;.m there s,„n... of the.n wo„hl have been out of the w.M,low Sonu. of then. we,v awfully fn^hten...! hou-^ht .t was a regular W.. an. 1 a l)unnyl„;,k. When I began speak.ng the row cease.l. I was there an hou or so arul when ca.ne away half of the peopio ha.1 ... rt. ^yi'-t I 'l.'l quiete,! the .listurl.ane : f r ha,r„o one what I . li... there w.>..l,l have h.en a l.;.eaeh o .1. -.sun,MeRae.lrankthere;hewentuptoth,.wti ".k, r nc.yer was aske.l to pay for the drink "-the . eo n, havng I.oen broken up. an,l the p,.,.p|.. ,, „, which b oley took ,n it he stated as follows • One ot M.-. McRaes f..io,.,l,s proposed that he and I should jo.n in a treat of all hands. I .-efused ; i said if I reated r would t.-eat all hands. I did so. The,; .nay .1 been about .;J.. or 4.) persons. I feated all alike -pl^Koa' and McRae's ..iends all alike. [He pai.l for a,. Jys" supper hen which he had with a few tViends.] I ^J^^l that n.ght tor supper and for treating; that was the prin- e.pa sun. I paid ; but I .spent so.ne smaller su.us " ^ had left the .-oon.. The row continued after the m eetin.. .over, and .t was then p.-oposed to treat all han.ls, to <1" et the people, as is usual o,. such occasions, It was not done to pro.note the election; both parties d,-ank fZTf ^ r^^' '^ they would hold their tongues Thlt t r I" ^' """'^ ''''' *'^^"" ^''' ^"d he "did. ^a IT '''-'■ ''' ---' ^i"'^^-^ ^«-. -d I think it vvould be quite unreasonable to say that the ^^eat.„g at that ti.ne, and under the circu.nstances, by Foley, the agent of the respondent, was a treating Jf a mee ing oi electors assembled for the pu.-pose of 808 PROVINCIAL ELECTIONS. [a.d. promoting such election." It was done for a different purpose, and participated in by both parties, to restore harmony and to induce the people to go home quieth' • and It fully answered the purpose, and Jrevented blood-' shed, and it may be-for no one can tell to what ex ent sted tr ^^"^' "^"^ "-' '' --'^'-^^ -^ ^- It vv-as no more a violation of the statute than the im- promptu suggestion of the successful candidate to ..ive a glass of champagne to his supporters in place of haWn.a public procession, which he feared might lead to a dls turbance, and giving it to about 200 of his friends, was a violation of Uie statute in the JIuMersJieM ease ,U L. T ^. b. .34.,). And I need scarcely say that the committee - «^^"- that he intended in "!,'""' '^'^* "?«» >"'"' ^nd vote for Paxton ''' "" ''''''' «*' -"'^^^-S '-" to The reference to the ffovernmenf ^r.»r a creditor, was a most il. ^ "*' ''"'^ I^^«'*'«" '^^ Bruce, wh^ is an in ' I 'T"^^'?'' ""'' '^' P^^"* of Mr. standing, :jof;;t'^^^^^^^^^ ™ «*■ ^-d social was on: calculated to akl: T " ^-^^^'borhood, and especially as Wharen tT f J '" '"^'^ ^^'^^ ^haren, P-sed L hacfs^ra ^^r^lj^r """ '""^ ^- persons having induencewTthh!p *^^ "^^W^^s of Crown Lan,l debtors LI 'if '7™"'"' ^"'"^ ations and re-valuatioSTn , ! ^^ P'"'^"""^ ^^'»- showing favor Tttm w, """^^ '^^^ *'^^"' ^^'^^«' ^-1 candidate, aJdea in rhlth,"^'?:*"' ^'^ Governn.ent the Government nna;t[h:rn ^^ "'" °PP-^' 1«7,-.] NORTH ONTAKIO. 311 is repugnant to every notion we have ever believed to be the principle and only rule of action of our Government. Fi^nding the fact of intimidation to have been practised by Mr. Bruce upon or against George Wharen in order to induce or compel him to vote for Mr. Paxton, or to refrain from voting for McRae, the law declares that .such act shall be deemed undue influence and a corrupt practice, .sub- jecting the person guilty of it to a penalty, and avoiding the election it the act can be charged personally a-^ain.st the .successful candidate, or upon his duly authorized agent. The question then is, was Mr. Bruce the duly constituted authorized agent of Mr. Paxton, .so as to make liim liable for this act of Mr. Bruce. The facts, as applicable to this part of the case, are • Mr Brace lived in Beaverton ; he worked for Mr Paxton During the election he was at the Reform convention as a spectator. When he was there he was appointed a delegate for Rama, as none of the Rama delegates were present. Mr. Paxton was at the meeting, and he was then nomi- nated a candidate. He continued, " It is likely I spoke to Paxton ; I did not offer to support him ; it is likely he ex- pected I would support him. I always work in elections • I was not on any committee ; I attended committee meet- ings. ... I saw Paxton during the canvass. He knew I was working for the cause, and I was a strong supporter of his, and that I was working for him too. Paxton did not attend the committee meetings in Thorah; I don't know that he knew of such a committee. At the committees men are appointed to canvass; I was not so appointed; 1 did what I could. I made no report of what I was doing to the committee. Paxton did not ask me, to my knowledge, how people were going to vote. I may have spoken to Paxton twice during the election. I was at the meeting of Paxton's at Birney's hotel." In cross-examination: " I was not appointed by any com- mittee, or by any party to work at the election." What- 312 PROVINCIAL ELECTIONS. [a.d. ever I ,lid I volunteered, and did of my own .rood will l never canvassed witli Paxton " ^ '• ^ t!igl>t' of us " "^ seven or of the ,„eoti„g. mnksVz\Z7:t:\Tr meeting,. Could not »nr if Pav(,„„ t„ .u "•' comnnttemTlioiah nil „ , "" """■" "'"' " l«ts, and got he vt« ,S , •' ''"'""' ''™'- ™'«"' vote, uis^ikc^B ui wi^:r:r"','°''''" ""•''■ ™"'' not «>y he did. He would heik Iv^' r""""" ""' """" -y of ,ueh matters. B ut ^^ '"'™ """«"''"8 '» aetive than di.,oreet Th„ T,!! T ' '°""' ""y '"»'« ta.y eouunittee of tj^„l""';;7'"'"- «» » voinn- Refonnei, for their owTnr;, T "'"'<' "P ">»■ "'« to do with appo,": „n Z^ZJT" '"' """""» friend of the eause Pavto, "''t"*'.""' '"««"«« Ma connnittee. He held pubH ""' ™"""S '° ""o with the connection Bruce had w^fl, fi, /^f.®^"^'^- ^ i^now ot no w^ a volunteer, a:rwre» to be a voluntary as.sS: •.f'^T,^ .1"'""" ^ '^^'^ then- own purposes A,.d f)^ '^^oriners there for -ittees in thi z-id ng in'the"! "^"Z'--- o^her con^I oneatPortPerrvbein..nw, r^""''""*'^ ^"t^'-^^t; the P-^ner, M. B^^L:::!!':^^- ^ tl. .espond^nt' ar, x/onaju Jiruce an atrent r>f ^u authority direct or i.nplied i^f. .1 ^'^'^Pondent, by ' If he M^ere not, then "'' ^"e^pondent himself / 4~t^^po:r^^^^^^ a Was Bruce ar.n„f„r, '*"»'««. tllen "y of .„e ccn'ST ^' "'■ """"« """o-- "'= autho,. All the cases show q i authority ft.om the i::';"""*^'; -"- ^-^res, that be shown creating orsanct on^ ^ ' *^'' '^"^'^^^e, must before the candidate crbrrd? '"'"^ *^ '^ ^^« ^^^^ of such person. '"^^" responsible for the acts ^^^^t'i^^^C^^^P'^^y^ontened. It may alieged agents in the inlf ^of V"^"f ^^^ «^' ^b' certazn circumstances, and itsl ^'^'^^^ates under S^ves rise to all the difficultv of I 7'"'""'«t*"<^e ^^hich n^cuity of determining whether 1875.] NORTH ONTARIO. 315 they are or are not sufficient to raise a just presumption that the candidate has recognized and adopted the acts of the person assuming to repi sent him. A large allowance is and must be made for the services of friends and volunteers who are acting for the sake of the cause which the candidate represents, and without any pretence of authority from, or any recognition by him, for, or of the performance of these services. The candidate may know his friends and others are workmg for him, and yet it is not clear he is answerable for what they do, although he does not in every case re- pudiate their acts and services. I shall refer to some of the decisions upon the subject They are the opinions of able, disinterested men, and I thmk It will appear on a perusal of them, that while ad- ministering the law in so difficult and delicate a branch of It with the most perfect impartiality, there is a general desire exhibited not to press the law more severely than they are compelled to do, to require strong proofs of the alleged illegal acts, to give the benefit of all reasonable inferences in doubtful cases to the persons charoed to make allowances for the acts and sayings of people durino- such exciting times, by not putting the harshest con" struction upon them, to require full and fair proof of agency before accepting it as established, to allow much latitude for the zeal of supporters of the candidate, with- out holding him to be answerable for their conduct, al- though he is getting the benefit of their services, and generally to uphold the election if it can properly be One who visited voters, and made appointments for them to see the candidate, and who afterwards introduced them to the candidate, was held to be an agent. Bewdky case (19 L. T. N. S. 676). In the same case (1 O'M. & H 17), Blackburn, J., said : " Every instance in which it is shown that, either with the knowledge of the member or candidate himself, or to the knowled.?, of his agents who had employment from him, a person acting at all in fur- 316 PROVINCIAL ELECTIONS. [a.d. thering the election for him in trying to get votes for hi,,. IS evnience tenchng to show that the person so acting wa authorized to act as his agent." One who is on a co,n.uittee, who attendet was further proved that the committee-men had brou^h voters to the breakfast, and that A., the recogni .ecUgent had spoken of the supporter, after the election, as htv !' done much good service. Held, that all these acts to<.ether so connected the supporter with the candidate as tolak the^one liable for the acts of the other (s. c, 1 0'M.rH Employing a person to act for the candidate on the candidate putting himself to some extent in the hands , that person, or the candidate allowing that person to malL common cause with him to promote%he flection iet dence of agency. Taunton case (2 O'M. & H. 66). 187.5.] NORTH ONTARIO. 817 A person upon a committee, but not shown how he ijot there or what he was to do. who wrote a letter offering to pay the voters' travelling expenses, was hel.l not to be an agent. The d udge, Bramwell, B., said : " If we were to hold this man to be an agent it would make the law ot agency, as applicable to candidates, positively hateful and ludicrous." IFindsor case (2 O'M. & H. 88, 31 L T K S. 133). In the following case the same Judge said • "Mr. Dawson attended the respondent's committee he said as many as twenty times. He was also present at t!- committee, and on the day on which he bribed the vrier ho was busy in getting up voters who required particular attention. I should have thought that itself was enough ; )l '"^l ^'^ "'" '^"^tl"»g. either .solicitation or persuasion,' to them. But not if he were only to bring them up and to use no mfluence with them. Durham case (2 O'M. & H. 134). A candidate will not always be answerable if he accept the services of a volunteer. Staleyhrichjc case (20 L T N. 8. 7o). A candidate is not obliged to repudiate volun- eer services (s. c, 1 O'M. & H. 70) , Taunton case (2 O'M. « a., bb); Herrford case (21 L. T. N. S. 117) A mere volunteer cannot hurt the candidate. Mellor J., said: "You must show me various things You must show me he was in company with one of the prin- cipal agents, who .saw him canvassing, or was present when he was canvassing, or that in the committee room he was m the presence of somebody or other acting as a man would do who was authorized to act. In puttin.. all these things together, you satisfied me that the man was a canvasser with the authority of the candidate's agent ; hen I do not look with nicety at the precise step,s, but (2 0'M."& H^lSr'*^'"^ ""^ *^^^ character." Bolton ease In the Londonderry case (21 L. T. N. S. 709) P was appointed by the Liberal Registration Society to'conduct the business of the revision, which shortly preceded the election. The candidate subscribed liberally to the funds 318 PROVINCIAL ELECTIONS. [a.d. Of the society, am] anprove.I nf P • ^^'^ «taff-of the .society w! P J '.-f '^ '^'r"^""''"*- ^1... "•^'^d in pro.»oting i),e electioj n"'''^''' ^^''^'^ '^^"^--^^rcLs «oe.efc^V directed in a -n-ea Z" ?. ''""""'ttee of tl.o 'j'-to.. and the candid^ ^r ;;;"!« --^'"^ of the directly with P. by letter wiir r " «o""mznicated I cannot concur in the opinion fjf ""' '^- «^'d: «-;di.iate. .vl,o choo«e.s to a L". e "/ "7 '• "^P""^^'" '^^^ '^ '»^^k« speeches in his favor can o..'"' ''^^"'''"^' *« candidate as an a-ent or H \ '' ^'""'^«'f "Pon the -sponsible for the ^ o' ^ T"'"'^^' '^''""'^ '^ ^-' -favors to dissociate hil,;- *"'" "''-' '- -tually ^«'^edbythecandidatesa.eTtttl!"l" ^""'^'«^^' ^'«« He declined, but said he would ''"' '^ ^^e connnittee. h« «P0ke to them and reprtluh:""''u^ ^'^ *-^"*«; - Hgent as to them. Ckbu't T -''''''' ^^ "«^ .-v-ning point was that he wa T^uf V'"'^ " '""^^ '•«'^' sented to be the nerson . , ^^ forward and con- those votes" Th f T P''" ^'^'■"n t^i^y relied fn . t: votes, ihe landlord had nnf ir. *i ^"^ Sf'-''^ undue influence. ""^ ''^ ^'^'^t case used any ^hom faith and confidence t '^^"""^^^r of persons in -nd between whom there "aTs" ' ""' '^ ^ «^»^'date. ^dea is a little differentl v ZT "f ^''^^^^- ^he same 20 L. T. N. S. 238 ^ "'^^^^^^^ '^ *he same ca,se. "n In the Stakyhridgecase (1 Q'M ^ R '7n^ t. 7d : " As a general proposition' fh^' J ^' ^^'^"^^"••"' J- Ployed by the candidatTr. ^* ^*-'- * Person em- «."ent) would go a gre^ tavT"" T' ^^* ^ ^«*« -- an -^ent; but IdfnUhirk wlltr ; "^"^"^^^'« ^« - ^d fast rule on which we ca„ at /h T "^ ''^''^"*« ^^^^d of corruption has been brought hT . ^^''^^^^^ « «^«« "wrought home to a person who was 187.).] NORTH ONTARIO. 819 w.thin this limit, tho seat .shonl.l be vacated. The effect of tl.at wouM 1,0 to Hay that whenever there were volunteers who were actin. at all. an.l whose voluntary actmy was not repu' ^^--"> B.. be issued 0. Ti^^^tV^^^^ placards may not by the cTi^d^^a 1 h .7'"' "^ '^' '^'''^'^' ^^fe'^ed hin.. Their ;tri^^^^^^^^^ -P-nting canvassing." ^ oeyond the mere act of 1875.] NORTH ONTAUIO. 321 ^3, 1 O'M. & H, '^g; the circular lectod with the 3. or by persons i« ii).spon(h'nt's wa,s conductod Justice VVillcs tfcjn^' nieiuher, ■* tidjpted also f the election, 3ircuhir agent :. 270). '. Mr. Justice pondent was oke at uieet- ive partizans Tliat there vJiicli might, which were •y a certain ed with the ^ected with ould prima and would ondent had Jids of cer- h them, so se of pro- annell, B., cards may n, signed, )resenting ii'e act of In the Limerick am: (1 O'M. k H. 202), Mr. Baron Fitzgerald .said ; " If the clergy make the cau.se of the candidate their own, and give him the benetit of having what may be equivalent, in its effect upon the election, to a committee-room conducted by themselves in everv pari.sh, they being the canvaHsers ; and if it then turns out at the time of the election that the candidate represents his cau.se as identical with that of the clergy, and publicly gives out that the (juestion between him and his adver- saries is whethei the clergy .shall be put down or raised up, and is accompanied by them through the streets can- va.s.sing; if that be ,so — although the particular clergyman of the parish be not the party who accompanied the can- didate in canvassing — I, for my part, will doubt long before I say the candidate is not, as far as his .seating in Parliament i.s concerned, responsible for the acts of those parties in their seveial districts or parishes." In the Tmtnton cmc (21 L. T. N. S. 169) there existed in the town a Conservative and a Liberal Association, each of which generally piuiaoted the return of its own candidate, and assisted the registration of its own sup- porters. The managers of the Conservative Association having circulated a'^ .I^WWedge. carried on t^^!:-;::::^^^ •senously opposed the one to the 0^^ '^ ''^ ""^ bi%forr ar;^tVetrf "^' '-- ^" -p-^- does not appoint and wh? T , '=^'"'°^tt««« whom he although Tkir tLy :: ::it;f ^ ' '^"^' ^-^ -ivestheirservices.an^.;riXtinrli: 1875.] NORTH ONTARIO. 323 bound to repudiate them. The latter case is quite opposed to it, because it is based upon this, that if the candidate knows that material services are being rendered for him, he must disclaim them and the persons giving them, if he' wishes to be free from the consequences of their proceed- ings. And both cases were decided by the same able Judge, Mr. Justice Blackburn. The Limerick case (excepting in an important particular, certamly, the fact of the candidate canvassing with the clergy) agrees in one respect with the Taunton case, last referred to, that the candidate identifying his cause with the clergy, and taking the benefit of their services, is bound by their acts. It appears to me also that the Westminster OT.?f, decided by Mr. Baron Martin, is not in accordance with the Black- hum case, decided by Mr. Justice Willes, and the Wakefield case, decided by Mr. Justice Grove. I cannot do better, after reading most of the law on the subject, than accept as my principal guide as to what will constitute agency, the rules of Mr. Justice Grove in the Taunton ccm, and inquire whether the candidate or his agent did employ the person whose conduct is impugned to act on his behalf, or did to some extent put himself in such person's hands, or did make common cause with him for the purpose of promoting the election ; and in the Wakefield ease (2 O'M. & H. 200), when the sa.ne learned Judge uses the like language of the candidate placincr himself or allowing himself to be in the hands of certain persons, or making common cause with them. And I think I ought to adopt the ruling of Mr. Justice Blackburn in the Taunton case, in determining whether the acts of Donald Bruce, under the facts detailed, made him the agent of the respondent, or made the Thorah committee the agents of the respondent, and Donald Bruce the agent of the committee. The Bewdley case (1 O'M. & H. 17) may also be relied upon, and some of the others before given. 22 324 PROVINCIAL ELECTIONS. [a.d. Looking at the facts before mentioned relating in i^ agent of the respondent within the effect and operation oi the law, so as to subject the respondent to Tl e c n equences of Bruce's act, in his dealing with George" Wharen as to his vote ? I am disposed to think that Rnf must be considered to have been such ^ent ttf^^^^^^ his conduct before stated, and the knowledge £ ,^^ spondent had of his services in promoting lieelelt The respondent, according to the evidencrhlT sons or bodies of persons acting r£t of """ ^'" -curing, and bringing up voters exc "1" r'"'""^' ;::rrthr ^^^^"' ..end; z^i^z hands Th '"r =""'"* '^ '^' '^''''^'^^ ^-sin thJr hands The respondent was receiving and knpw h. receiving the active aid of Mr. Bruce tnd others HkeC He never objected to the aid they were eivinrbTn T d;d not repudiate it, nor tell them the" wl fac^", ,f ciously. and basying themselves whenTw ^ wanted. He knew tliere was a isMn what thT" " doing, because he cautioned them as to7b. . ^ """'' I do not know how else to de^wir Mr 3:0^^^^^^^ ^icrSi^^ri^-nr;^^^^ respondent's business. "" '" '"'' "'»'" ">' ^m.^:^tr2^JZ ""'r .^'*-'^ " *e private the debtors ofhr^tni"'"*"™ '" '=°"'"« "P"" then, of the,, JoZS^^rthl^'Z''^ '"'^"■™' '^""' of it, and told him toLrllfJlTd"?"??'"" """ to his, the respondents, p-^Idtewbt; T' ''" ''°^*'""" eould it be said, aithongE Tl T ^t tZ:' ""'7: be called a volunteer, that Mr P.v.„! '"'"''" give credit to his debtors for 1,. "! "'" *"""<' "' paid on his account for M, Bruce "'''' """* "'^^ "'^ ."Sd :Jt:: !,;■ i~ r te"h?r -- -- ^^Pondent, and after his „:„;*:; tlt:,t:J: 1875.] NORTH ONTARIO. 325 interview with Wharen was on the morning of the polling day. I am also of opinion that Thorah township committee must be considered to have been the agents of the respond- ent for the purposes of the election. The reasons I came to that conclusion are before fully set out. I must assume the respondent, as well as his a-ent Mr. Card, knew of the Port Perry committee, and ofthe others also of which Mr. Card had knowledge And I must assume from the above facts, relating to what was said at the convention as to the formation of these committees, and that they were to have the general management of Uie election, that he knew also of the organization of the Thorah township coi .nittee, which is the one with which Mr. Bruce is s . have been connected. The like ra^::. n^d principles upon which I have been obliged to hold Mr. Bruce to have been the agent of the respondent, equally oblige me to hold that the Thorah* ccnimttee were the duly authorized agents of the respond- ent Holding that as proved, was Mr. Bruce also the a<.ent or the committee ? ° I am not fully satisfied he was. He was not a member He was not deputed by them to do anything. It is not shown that they knew what he was doing. He never reported to them. His attendance there twice may have been merely to talk over matters, and to give them such mtormation as he was possessed of. These circumstances will not warrant any act of delegation of powers by them to him, nor of any acceptance of his acts by them In the South Ontario case (post), I came to a different conclusin with respect to this question of agency of the Oshawa committee. I gave too much effect to the services ot committees, and of the members of them, and of others acting for the candidate, and to his knowledge, and ap- parently with his consent and approval, by holding them to be volunteers, and by exempting the candidatt from accountability f^r the acts of such bodies and of such persons. I have since reconsidered the opinion I gave in that case, and I think the first impression I had on it, that n ; 326 PROVINCIAL ELECTIONS. [a.d. -pn^sed the opinion which I tlivetd i'ltr""' ' that I should sive it in f« J i^ .!. ''^*' '"•'l^^^'' thing, in suppor of the eltr '' '"•'""-" «*^*« «t' ■ against thenf It I it '/r r'"™' ^^*h-' *han matter then as I do nowl 7u^ '"' ^'^'^^^ «^ ^^o avoid the election LTe^ivi: on'" ^"/'""^^^ '^ at Halletfs tavern to v l.^d ^^ Vjr U^ '"'■ '"'""^'^ to the 66th section of the ElecrA'atm^^^^^^ it was not in anv mannAr „^ ^, Although «tHngenc,of the'stXtr Il^sa^r ^"1- /'^ ^^'^ responsible for all volunteers but iT'^t?"'''^''*''^ '^ knows of their acts in his inte.;st and hi I' '' '" to go on without disclaimer P^""""'*' *'>^'" them rnralt;tf:f':f ^ ^^^ ^^^ -^. ^-wing of escape the conseqis ^^ ^'^P-'-*-"- 'nd them. ^ resultmg from, or connected with If it wa? otherwise there mirrhf Ko j and a legion of private frienSean ' "^ ««'«'«'ttees, be, treating and bribinc; anH . '^'^^^^^'ng and. it may election of^hei InSte an I'^-r'' """" ■'^«""»^- *'- and he would imll^^::;^,'- '''''' !^°'"^-' F"oved, merely because they vet ^H ^2^^^— re candidate had never annoinf^ 3 ''''/^^""teers, and the or openly identi J SS^tul^r'^^^^ was said they were fightinlfJ t ' ^""^ ^'^'^^"^^ ^' candidate who represfnteSlt '^"''' "°^ ^"^ ^'' '^^^ >vas notorious the whi bul. ' ^.t'^' '^^^*^"^«' '^<' '* — eintheha!:.^^^^--^.. ■i <: 1875.] NORTH ONTARIO. 327 ations and the township committees, and in those of private persons, of whom Mr. Bruce was, in my opinion an.l to the knowledge of the respondent, certainly one.' I find t^s third charge to be sustained against the re- spondent. The remaining charges on personal grounds are pressed agamst the respondent. The first one is the allecred bnbmg by the respondent of Nichol Leppard. [The learned Judge here reviewed the evidence, which showed that up to the polling day Leppard was hostile to the re- spondent on account of some difficulty he had about a lot of land, and then proceeded :] In every way I look upon Leppard's evidence as un- satisfactory and unreliable. It is repugnant in itself, and •t IS directly contradicted in some respects. I see, how- ever, the great fact that Leppard, having pledged his vote to McRae, changed round immediately upon the conver- sation with Paxton, and that conversation was admittedly about this land, and Leppard's grievance against Paxton How was that change brought about ? In my opinion there is strong reason to believe it was brought about by Paxton's promise to Leppard to get another lot for him aj good as the one he had lost, or to fetch it out all right for him, and that the change of side from McRae to Paxton— from the person he was pledged to support to the person he was pledged to oppose— was effected by the promise then made by Paxton. I am not prepared, however, to find this charge proved against the respondent ; it rests more on suspicion than on clear positive proof, and the petitioner might have given more testimony on the .sub- ject by the examination of Mrs. Leppard ; and as that has not been done, I do not feel disposed to convict the re- spondent and to subject him to such highly penal conse- quences, so long as I do not feel b.^sured the offence has been proved. Although I may beliove the transaction is surrounded with the gieatest suspicions. lam glad to be able to say that the charge has not been proved against the respondent. m *• 'i 328 PROVINCIAL ELECTIONS. [A.D. lor twelve „,■ fou*e„ yl .'!™:n r' °' t^*""'' account with Paxton beCtt tt e o SnT^r wheat h,j 3„y ^„ ^^^^^ T^nceTu A ' Paxton'smilJ ThpvnroK.; • '"""^^ ^mie they ran the election. I SelZoZ^':', ' '''^'" '" ""^ ^"" a settlement fo/rilt"^^^^^^^^ ^^^^^^^ *«^-^ to me. I applied to Paxton and to^Ma^^^^^ Id 7^ '"^ Paxton always said he would settle T ''""''• had paid it to Paxton. Marsh sad h ^'""r '"^^ "^^^^ it settled. ^^'^^'^ «ai '' "^ ^''*'^- a few minutes after thalVr R"'",' '"'^'"''" ^' ^^^ "- with the otf-set of tt rlt TK " ""' " '"^"^ *« ^''illips of the $20 was abonf . ,,' '^'^^^''^a^on with *- the respondeJt CltTe ll^^^^^^^ '^^^''^'^^ '-*^-■• -id at the conversation TwlSf tlT """'"^'- ^^ Hope, the latter said to ;. :„, ^ffTdid nT"' ?u ^"^ ""' ^^ g-e my note he wouhl sue me fl ft hv^''' "^'"^'^"" «^ morning. I refused to give Tt iJn ? T' "" ^«"^^y '"y place to pay it • if Tc ' / T ^'' ^"'^^ ^* ^*« "«* put costs on ^r..i i , ""''-'t'Sc at rort Perry, which pixlita^ 1:^ nZrT''^ 'r '^^^'- year. Bigelow did not IThT'i ^" T^ ^^' ^'^' « the place^'and when he dd and T T''''" ^' '^""^'''^ Hope said he had paid $200 otil T'p'' /"' ''^ '■'^"*' ■said that would be aU ri^hf V, I . ^■^*^"- ^'^''^''^v' the remainder, $^00 of ff^V"'^ '^ *^'^^ ««P«'« "^te for before this trillhe mad. . ^"""" ''"*• '^^'^ ^^^^^^^^^Y -^ ^eferred lo, ':; f lit rsfZ 'l ^f '^^^ "^ Hope, and he said he had conclul! to pul th '^""-^^ He continued: "I said T wa .T ^P"* them in suit. could in the election surr ■,,,." """^ "'° "" •>« whose acts he reLSl^^^.T^'"''' ™ " '""'^ *»■■ i« also a bmSat ' ': ""Y"" """ '^"*, who a voters, lis, and be! ^eru teTh^al hS""™? '"" canvassine of or in hi Ik i j- ^ °' """■>■ "'"> 'he ' canvass. '" '"''°°' **'"'■ «"»™ comnrittee i°„™'td oT:";, T,! " ""^ ^"" ^^'^ position as a memhpr «f /* /"«™oer or m the same committee wL'^atwh eh f.^ ^"^ *^*^ '^^ agent, Mr. Card was plslft ^^^P^"^^"^'« recognized ' *' P'"'*^"* "P«° one occasion, and had 1875.] NORTH ONTARIO. 833 therefore knowledge of. It was presided over by Mr. Bigelow, the partner in l)u.sine.ss of the respondent, [t was held in the same place where the respondent resided and I have no doubt he had personal knowledge also of the existence of that body. 1 find also that Mr. Sliaw aided actively in promoting the election, and to the personal knowledge of the responde- and that he and Marsh were agents, or sub-agents .*t least, uf the re- spondent, for whom and f<,r whose ac^s he was and is responsible. I am of opinion Hope's main story is quite true and correct; that is, " that he did tell Marsh he would not vote for Paxton if he did not get the claim settled." He swears to It po.s,tively, and Mr. Shaw expressly confirms him. Marsh denies that such language was used, but he admits that while Hope was pressing for an immediate settle- ment Hope did say that Paxton might want his help at he election. I think he eaid more than that, and that Marsh heard it, for it was said to himself. Mr. Shaw also says that Marsh wanted Hopes claim to he over till after the election, but that both Hope and King said that "now was the time to have it settled, before the election." The meaning of that all parties fullv understood, which was that the coming on of the election was the press ire put on by Hope to have his claim settled, and that the other parties, to get the benefit of Hope's vote, were to re- move his objection to voting for Paxton before the polling Shaw says plainly "my interest was equally to save the costs and to save the vote," and he was also an agent oi the respondent's, and taking a special part in the arrangement of that matter. I find that the facts show the .settlement of that demand at that juncture, and in so great a hurry, with such special zeal for Hope's interest, atter it had lain over for more than five years, neglected or resisted by all parties, Paxton, Marsh and Trounce, who had been repeatedly .applied to by Hope for payment, was 334 PROVINCIAL ELECTIONS. fA.D. _».ougI,^ about by Marsh and Shaw with th. , • tor the express purpose of securinnh / . '"^" '^"'' his son, for the re. noiulenr„r^,t ''''*'■'' ""^ "«P« ^n.! k"- eoui,, not beTbiL ':;i:t ot^f ^"" "'"- substantially a.h..its that tl T \ ' *''™'^' ^'^'i"' -nt as an answer I al^ ^r:, V^^.^ ^ ':::;rUrhLis.f---^^ statement in «o„.e pa tTc "rs , J^^"'^'^^-* -^^ '-s "f eso by any explanat! Tl pT fr";'; ^^^^^^'''^ ^e wliat he did, and bv thp f i., , '"^ governed by tiyet.todiseove;;r;i:'rsr.;^;;::r'^^^^-'^^"^ and circuu.stances'l have no d "u haT'r^f f "^^ purpose of Marsh in getting, that not/f m -^''^ ^"'^ ent at the time it was got'' was for b" ' ''"P°"^'- curing and securing the v. J of H ^IJ^^"'' '^^ P'"''- the respondent at tT.e e e tn Ld T?"' ''^ ""^ ^"•■ knew that Hope believed 7^! ' T ^^^' "'' ^'""'^^ he -nepurpose/and:hat:;V,trs:2\'J day. that Hope and his sons would fn, :f\*'' P'"'"" the respondent, but not otherwise ''"*' ^^'' p^iih;:tsZ;::;t^L:^i;:^been.^^^^^^^^^ which of them is telHnf he .r''''°" ^'^^ ^^« «20 ; Hope says he wasrSfngt Iff "T '^ ^ ^"^^^•- settlement of his deman^a!/.^ r"* '""**'^''' *h^" t^e the rent, at the tit he ;:L ': t-n-^^"^"^^ ^"" '^^ Phillips is in that respect mote coj't S" '' "^^' '' the conversation than Hope **'^°""* ^^ --^L. 1875.] NORTH OXTAHIO. 885 hat he wouKl do all ho coui.l i„ the oloction suit against Paxton; wh.ch state.nent Hope .lonies. He says it Jas B.geIow whosaul to him if ho ca.uedown to give evidence It would he the worse for hiui. viucnco I do not think the contm.liction hy Phillips of Hope nor the contradiction by Marsh and Shaw of Hop.- in the particular referred to, destroy 'lopu. .redil.ility and veracity as a witness. There arr other o^,..es to vvhich these contradictions can he assi,Mai (han i. untruthful- ness of character. Marsh is directly ..Uiad'.. ed hy Hope and Shaw in an important matter, .: i tiie surrounoiL tac. conhrm them, yet I do not for a moment imputt wiltul misstatements to Mr. Marsh. ' Undoubtedly in cases of contradiction I must be more cautious m accepting as true the statements of a witness who has been so contradicted, but until I have lost all taith in him, I must not disbelieve him altogether I have so dealt with Hope, and in forming the conclu- sions I have come to in his case, I have sougtt and found confirmatory evulence in the testimony of Mr Shaw partly m that of Mr. Marsh himself, and very strongh i' the accompanying facts and circumstances. There is still one matter of contradiction to be accounted for, that l>e- tween Mr. Bigelow and Mr. Hope. Mr. Bigelow says that Hope .said it his claim was not settled it would be wor.se for Mr. Paxton-that he, Hope, would do all he couW against h„„ at the election trial ; while Hope says that it Z^M I'Z T'" "^' ''''' '' '''• HoP« camJdown to the trial it would be wor.se for him. The facts are that on the Satn nky before the trial Hope and Bigelow had a conversation, and Bigelow made a demand on Hope for payment of a note fof S116. wWch IS no doubt a just claim, and also for an arrear of S200 upon a former year's rent, which latter sum Hope di.spute.l because he said he had before that, and before he had had any notice of Mr. Bigelow being his landlord, settled with Paxton, his former landlord. Mr. Bigelow had long before that time been told that very fact by Hope, and he had 336 PROVINCIAL ELECTIONS. [A.D. ac epted it when first told of it as true, and had allowed It to Hope as good payment by deducting it from that year s rent, and taking Hopes note for $300, the balance ot that year s rent. Hope never heard of this alleged arrear of rent bein.. ckimed until he began to press Paxton for payment ol' the note for $110, which Marsh got for him just before the election, and probably he thought the claim for rent waJ set up to overreach his claim upon the note. It was upon that Saturday before the trial that Mr 13igelow, the business partner of the respondent, declared to Hope he had concluded to put the rent (as well as tiie note for $116 which is not in dispute) in suit, and at that t me MI^ Bigelow knew that Hope was required to attend this trial as a witness. I think it is somewhat suspicious that Mr. Bigelow the business partner of the respondent, at such a time should tell (I do not say threaten) Hope, a witness upon the trial against his partner, that he would sue him for a We claim of rent which he, Bigelow, had himself settled ftr in tull with Hope many months before that time, and I confess, if I am obliged to say whether it was Hope who l^ireatened Bigelow it would be the worse for Paxton It his Hope s, claim were not settled, or Bigelow who threatened Hope it would be worse for Hope if he Hope came down to give evidence against Paxton, that Vshall hold there is quite as much, and perhaps more, reason for beheving that Mr. Bigelow, who was advancing such a claim at such a time, and with a knowledge of Hope's position as a witness at that time, was the person who made the threat as or than that Hope was the one who ^ I can see that Hope might have made it because of the -..aim, which he believed to be an unjust one, then made upon him, and as a mode of getting rid of it. There are views in favor of each of these two parties; but most .^.suredly it is not for what Mr. Bigelow has said that I should discredit or disbelieve Mr. Hope. 1875.] NORTH ONTARIO. 337 The result of my examination of the case is that upon all the charges above stated, excepting the second and third, the evidence has not been sufficient to maintain thein. I find also that the two charges with respect to the alleged bribery of Edward Cunningham and Joseph May, which I disposed of on the trial, also failed. I may say I have no hesitation in finding the second charge fully proved against the respondent so far as the act of bribery was committed by Charles Marsh, his agent but I acquit the respondent of all personal participation in it or knowledge of it. Whatever knowledge the re- spondent may have had of the nature of Marsh's act can rest on suspicion only, which can never, and especially in so serious a matter as this is, form the ground of an ad- verse judgment. And I desire to say also, that while I determine the third charge against the respondent, I do so with less confidence than I dispose of the second charge, because there are not wanting dicta of Judges which are not un- favorable, to a considerable extent, to the view of the respondent, that Bruce was a mere volunteer for whom he, the respondent, is in no way liable ; but that question in this case is of less consequence from the conclusion I have arrived on the second charge, that the election must be vacated; and I hereby determine that Thomas Paxton, the respondent, the member whose election and return fire complained of, was not duly elected or returned for the reasons given upon and with respect to the second and third charges above set forth, and that the said elec- tion was and is void. I shall give the petitioner the general costs of the cause. I shall direct the petitioner to pay the respondent his costs of the 4th. 6th, 7th, 8th, and 9th charges, and also of the charges made with respect to Edward Cunninc^ham and Joseph May. " I. shall allow no costs to either party of the 1st and 5th charges, and I shall direct the respondent to pay to the petitioner his costs of the 2nd and 3rd charges ; and I m 338 PROVINCIAL ELECTIONS. [a.d. Wharen, an elector of the said RirJilTi .""'»' Wd. with respect to ik:Z!^'Z tht ChT Marsh, of the township of Reach, was .umy of a co ! practice during the said election. Ly 7h!lZrl o.' dehvery to Thon^as Hope, an elecL ofThe 3 Ridi" • he projnissory note as before mentioned, wth'^^^^^^^ the said second charge. respect to That no corrupt practice wa.s committed «f ih. ■ , e ectxon by or with the knowledge S^.^^ ^l^ of the candidates thereat. ^'^ ^ i either vaitef af ^. ««rryt practices have not extensively pre- vailed at the said election, nor at all. so far as T K reason to believe, except as aforesaid. ^"^' I shall report also that many of the taverns in the Riding were open, and in many of the taverns o^ the Ridmg,sp.r:tuousand fermented liquors were ."ven and Court of '^ ^^Tt^°"''''' ^'"^ P^^^'«« ^PP^'^led to the Court of Appeal ; the respondent against the decis^Cn of ^e learned Judge in (1) the Bruce-WharenTnd ( Marsh^Hope cases and the petitioner against the decJol Mr. Hector Carmron, Q.C.. for petitioner. Mr. Hodgins, Q.C., for respondent. The judgment of the Court was delivered by 1875.] NORTH ONTARIO. 339 Burton, J.— This case comes up by way of ann^a] nn-l -s appeal from the judgment of m" jl^ce Wi L 1 On the appeal two questions are raised • 1st. Whether the respondent, through Donald Bruce his agent, exercised undue influence on one George Whlren a voter; and " "aien, 2nd. Whether he was guilty of bribing one Thomas Hone tlirough Charles Marsh, an agent ^ The respondent contends that in neither case was agency established, and that, assuming the agency to be eCb hshed, he act complained of in the flrst'of the tlo cha t 1^8? ;l " ?' ''"' ^^^^^«" '' *'- Election La^o 1.^68, and the act complained of under the second lead was not bribery. ^>-"'iu jieaa The learned Judge with some hesitation held the agency Donald Bruce to be established; but I have not tZZ |t necessary to consider that question, inasmuch as I " e been unable to convince myself that what is stated to Zl occurred is a corrupt practice within the 72nd section The evidence tends to show that Wharen was in arrears t^ the Crown for a lot of land, and it is contended tha Bruce endeavored either to intimidate him ortoYnfluence IS vote by pei-suading him that the Government wo'ld ook sharp y after those so circumstanced who did not vote tor supporters of the Government No doubt it is the intention of the law that voters tliat they should use their own iudo-ments an.l ,h ! -Huenee should be brought toie:;^^^^^^;:;;^ would have the efiect of interferin-- with tlvis fvl of iudo-ment- „n,l u- : • * ^^' ^^''^ iree exercise ■I e ■ 1 — •■xi...iieoug witn t US free pvhiy H or aebtors to the Crnwn fn,. n„«. — i... i ^ " of lphtnr« w.\7 n .'^""^"'^uency composed laimly 340 PROVINCIAL ELECTIONS. [a.d. earned on contrary to what the principle of the law is Jiut It IS not shown in this case that any such general pract.ee prevailed; and the question hefe is wheth ' assuming the agency to be establislied, the act was one ot' -ndue influence, ,n its proper statutory sense, of using any violence, or of threatening any damage, or of resorting to any fraudulent contrivance, to restrain the liberty of a voter and so either to compel or frighten him into votin! or abstaining from voting otherwise than in accordanc: with his own free will and judgment The Act applies not only to cases when the iniury infl.cted or threatened is wrongful or violent, but to easel where although the party has a perfect legal right to do the actyf not done with a view to affecting the vote) tl doing It does inflict harm upon the other side; stil apprehend it must be a threat of something which the party or the person he represents would presumably have the power to carry out. If, for instance, the CommiLoner of Crou^ Lands had been the candidate, and his agents had made a representation of the kind ascribed to Bruc or If such threat had been made by a local a^ent of the assume that such a threat might be acted on fZT-T"7''\ ^? '^'' '''' "^-^ "* most a mere hrutum fore n" ^?"""P"^ r '^' ^="-^ ^^^ -ny -eans of en- toicing. It appears that as a matter of fact Wharen was not intimidated although that might not be material if wfttn'fh 7!/'^''"'''""''^""'^'^""*^^ ^'^ -threat TlZn\ ' '"' '^' "^^^^' ^' '' ^^-"« *« ™e, were at most but an expression of opinion upon a subject on which every one was competent to form his own iuimient- Speaking for myself only, I am of opinion th. v.is not an act of intimidation or undue influence w.'thin +r;. 72nd section. But It is unnecessary to decide the ^.uestion, as we are all agi^ed that the other charge is fuLy sustained. It was contended that as there was an actual legal debt, Marsh was merely carrying out what he was bounS by law to do. and that his motive could not be inquired into 1875.] of the law is. Y such general ■e is whether, act was one of e, of using any 3f resorting to ! liberty of a m into votinc in accordance 'n the injurj- i, but to cases al right to do the vote), the side ; still I ig which the uinably have ^omaiissioner d his agents bed to Bruce, agent of the unreasonably mere brutiim .s one which tneans of en- Wharen was ! material it' to a threat i to me, were I subject on R mr'gment- was not lin +r;3 72n(l question, as y sustained. I legal debt, )und by law ed into. NORTH ONTARIO. 341 I am not aware that there has been any expre.ss de- cision upon the point, but I should say that it I always open to inquire, under statutes of this nature, whethe the debt was .simply paid in accordance with the IZ obligation to pay it, or whether it was in fact paid or zrx ''''"''''''''''''- '-'^''--'^^^ In^c.^.. V Slade (6 H. L. C. 746), on the argument in he House of Lords. Lord Brougham put this caJe : " Su^" pose a debtor to say to his creditor. 'If you will vr: for the sta ute Lord Wensleydale adding: "It bein<. a g..at advantage to have the debt paid without the ti'uWe to bring an action tu recover it." "'"uuie If it be open to inquire into the motive, as I think it IS, It IS impo.ssible to say that the learned Judge was no fullyjustified in holding that the motive whichlnfluTnced Marsh was that of procuring Hope to vote at the election Then, was there a gift of any money or valuable con sideratxon m order to induce him so to vote ? The voter had for upwards of fiv. , ears been endeavor- ing to procure payment of this debt without success. The learned Judge has come to the conclusion that he did receive va uable consideration, in the shape of Mr Paxton s promissory note, in place of a claim which his ngma debtors insisted should be paid by Mr pfxton butwhich he disclaimed all liability^W, aL whi^h had remained in that unsettled pc^^'tion for nearly six 1^^^^ We cannot say that the learned Judge was wronf n coining to the conclusion that this not^e would not W been given unless with the view of inducing Hope lo r::ir?'f *'^ r ^-^^ °^ agencylasTi:;! towarian. the conclusion of the learned Jud-^e his de- cision should be affirmed and this appeal dismissed learned JuT '^^ '' '' "'^'^ ''''' '^' ^««i-«'^ «f the learned Judge was erroneous in holding that the resnond ent w no, proved ,o have been guiltj of bribL^TnTht Leppard case, in holding that the bribery of Thomas 342 PROVINCIAL ELECTIONS. [a.d. Hope by the respondent himself w^i. not proved, and th*u the treating by the respondents asrent, Ja- >3 P Foley at a meeting o).' electors awoinbled for th- purpose of pro ' motmg the elect: ,,. of the r,.sp.>adent, had not been proved. As to the first of these charges, Mie learaod Judcrg re pprts the evidence of Leppar I as unsati.fact,)ry and uii- rehabl.., repugnant ui itself and directh contr t-Ucteo ii some H'^^pects, and he declined to convict the rt-o^ondent and subject him to such highly pe.,al consequ^ices as woufd toilowati adverse decision upon such evidence We .-.ee no ground whatever for differing from that view. ■Jjon th., second point, the only evidence to show r.txton's connection with the transaction ;,s that of Marsh vviio, after referring to the conversation Nv.th Hope says' " In the forepart of the following weekl ...wMr. Paxton' «nd told him what Hope had said about j utting me to' costs, and I said I wished he would settle it, to save me being sued. I did not tell hini of Hopes remark as to votmg; Paxton said he calculated to settle it, and would It lie knew the amount.- I said it was about §110, and he then gave the note." I am very far from saying that the case is not one of grave suspicion; but there is no reason, that I am aware oi, why the general maxim should not apply, that in penal statutes questions of doubt are to be construed favorably to the accused; and although it may be said that the partV charged here had an opporfcuaifcy of purging himself b^ his own oath, it he chose to take the ground that tl,; charge was not proved, and that he was not called upon to disprove it, it was competent f ,)r him to do .so, sub- jecting lum,selt to the risk of having his omission to do .so commented upon by the opposing couasel. T'o doubt, the iao,st was made of that omission, and the i ■ d Judoe ■sitting also as a jury, has come to the conci . on that the' evndene.^ ^as not sufficient to satisfy or. -.. .t the charge Mn vn? TV" *''' ^'^^P""^!'^"^- ' ^ i h. has acquitted l"m 01 all knowledge of or participation .:. ^t. It would be 1875.] NORTH WENTWORTH. > roved, and that Ja i: 03 P. Foley, purpose of pro- lofc been proved, iraod Judge iv- aeti^y and uii- cont]' idietti'-) i.i the respondent onsequences a.s 1 evidence. We that view. lence to show that of Mansh, th Hope, saj's .- i\vMr. Paxton, I utting nie to it, to save me remark as to it, and would t §110, and he is not one of it 1 am aware that in penal ued favorably that the party ig himself ijy und that the )t called upon 'O do so, sub- ision to do so ^o doubt, the ' d Judge, ^ on that the t the charge i I as acquitted It would be 84:^ too much in a quasi criminal case to ask us, under these circumstances, to reverse his finding. It is not necessary to offer any opinion upon the Foley case, as the charge if established merely goes to avoid the election, but we may say that the evidence does not satisfy us that he was an agent at the time of the alleged treating. (9 Journal Legis. Asseni., 1875-6, p. 14.) NOKTH WENTWORTH. Before Chief Justice Draper. H.\MILT0V, 19th and mh May, lS7o. Before the Court of Appeal. Toronto, 16th ami ^oth Spptpmhor, 1S75. Robert Christie, Petitioner, v. Thomas Stock, Respondent. CommUtees-Aiiencu-TmUin,, on pollin,, day-Corrupt practice tvith Re ■^pondmt's knowMuc and consmt-3^ Vic. rap "l scc1>f mvZ cap. 3, sees. 1 and 3. >■ "t., cap. ^i, gee. 66 ; J6 Fic, Ui PROVINCIAL ELECTIONS. [a.d. Per Burton and PrUtfrmn JJ A Thoo., i u applies e,,ually to tCellied iiT.rl/lr^"'"''',''/ '' ^ "^ '''« ^ic, c. l' and. if foind asaenC partie,^^ ' ^ au election The facts of the case on which the election was avoided ?oTlo" n ?/^^•'"^'-"-*. -^1 -ere substantLZ 1 fol ows: On the polling day, and between 2 and 8 JL2 n the atternoon the respondent drove up to Davidtnt Su hvan, who had been an active member of the or-C candidate The respondent, addressing Sullivan or the assembed people, said, "Boys, this is th^first time I ca^n Carhsle when I dare not treat, and some one will .a to trea me." Sullivan said he would treat, and w luh respondent and a number of people went into the tavert and while there Sullivan treated some of the people the' respondent drank with the rest. ^ ' anflnt ofTh' ^"' ^'*^^^'"''' ^'^"''"'^^^ '^^' «"!"--" was an agent of the respondent, and that his treati.,. on poll mg day was a corrupt practice; and the responue^t beit party to the infringement of the law Under the present aw If a candidate is a consenting party to a brLch o the law. agency need not be proved Mr. Thos Rohertson, Q.G, for respondent, contended that ndStTlr ' 'fr*'r= but partake 'of refreshttt and that act is not brought within the definition of a cor gent'oTtt ^'"!l ^'' "^ P^^^^ ^' «^"--'' blV n agent of the respondent ; in fact, he was not an aeenf, nor was he a member of the Conservative Associa«on bv claret :r"'rr 'r^^^^"^= -- -^^^^^'^y Charge in the particulars of Sullivan's beinc guiltv of a breach of sec. QQ of the Election Law of 1868. ^ mentTfle'^'r ^~'V'^. "*^^^^^ ^^^^^ "^ adjourn- ment of the Court yesterday evening and the meeting ^MtMu 1875.] NORTH WENTWORTH. 34i this morning, I carefully read and considered the whole evidence^ The result at which I arrived in regard to the acts of the respondent and others on the polling day, and during the hours appointed for taking the polls at David- son s hotel m the village of Carlisle, rendered it unneces- sary, m my opinion, to determine any other of the charges advanced for the purpose of avoiding the election. Mv findmg and my report to the Speaker will be limited to that one matter. It will be convenient to begin by referring to the statutory provisions on which the charge of corrupt prac- tices IS founded. They are contained in the Ontario Statutes, 32 Vic, cap. 21. sec. 66 ; 36 Vic, cap. 2, sees. 1 and 3, sub-sees. 1 and 2. 1st. "Every hotel, tavern, and shop in which spirituous or fermented liquors or drinks are ordinarily sold, shall be closed during the day appointed for polling in the wards or municipalities in which the polls are held • and no spirituous or fermented liquors or drinks shall be sold or given to any person within the limits of such munici- pality during the said period, under a penalty of 8100 in every such case" 2nd "'Corrupt practices' or 'corrupt practice' shall mean bribery, treating and undue influence, or any of such oifences as are defined by this or any Act of the Leo-is- iature, or recognized by the common law of the Parliament ot l!.ngland; also any violation of the 46th, 61st and 71st seca of the Election Law of 1868, and any violation of the fcbth section of such last mentioned Act during the hours appointed for polling." 3rd. "When it is fouiid,upon the report of a Judge upon an election petition, that any corrupt practice has been committed by any candidate at an election, or by his a^ent whether with or withoMt, the actual knowledge and°con- aent of such candidate ..e election of such candidate, if he has been elected, eaall be void ;" and further, when it hBs in like manner been found " that any corrupt practice has been committed by or with the actual knowledge or S4« PROVINCIAL ELECTIOXs. fA.n. Us consent of any candidate at an ,.l..„f • , 'loction, if he has been Ic J, ""' '" "'^•''""" *« I'i tHe eight ,ea,.s ne^^:^ ^ 'i^jf ^- '^"' ^'"^''"^ guilty, l>e incapable of b.; p! .'^''^ '^^'"fe' '^'^ *"oun'l Tt will be seen. th,.otorP that th.fi !' • stotc.l prohibits crtain thinl! . T' *''"''''""" '^'^"^•''' who act contrary to prorbitT T'^"'^ '''^' ^^^"•^'- in every such Le 117^ ^ "^ ' '"'''^ '' '^^'^^^ makes things prohibited con ;nLr"= "^'1' *'"^^'^' in its Hrst branch avoid, fh f^' '^°^''=«'* J »"'! the thir,l, ffuiitv of such ti^p ' !r rr* " '^"^^''••'^^^ f-'-i The question ' I tvl to 7 '."^'^"'^"«^«ti""- «pondont is guiltt o Ihe fu "'"7""" '•^' ^h'^*'^-' the re- and disqualiSed. or Lt • '^X ^^^^^^^^^^^^^ ^ *« ^- '."soated question is to be dispose | of on .h ^? »"««ated, and this trial. ^ '''' ""^ ^" th-^ «v'^'ence taken .u oh. David,son-s hotel 2 :o kepTlf ' /" 'l'*^' P-^-»'a,.s. Pou^ted for polling, .Jl^^^Z^^^^-^ ^^e day ap- and guen in that hotel within fK • • ' ^'''"' "'^'' Davidson's evidence proves hi r ""' "*' ^^'^^'^^^' for there was no acc^s o .1. ^"''■•"'*, *^'*°^''*^- «P-^> street i the ^^ roln i .^ *%^^"* ^''^^^^y f-.n the into the caning-roim wa, "I T ";"' ''"" '""^ '^^'-^ -d beer were^sse'!; To^Xtt oT^f r "'^"""^ Th-i itwP. p, ,ved bySul'-.-an ,, ;"^''/'^" '^^"'"g-'-^on.. hotel, he saw respondent dri". up that""^ '"'''^^^ ^'"'^ dressing Sullivan or the peon. ^' "^^^^'^P^'^'^'^nt, ad- to this effect: "Bov tK .r'« "'' ''^^'^ ^^'"^•^'•'"^' Carlisle when I dare^^^' L" ,t? '"^ *'-« ' ^aau. t.! treat me ;" ad Sulliv "''"'' """^ ^' ■' ^ave to respondent, went into t T ". T"^'^ *''**' '*"d, wit i^-s.va.ous;'::^:;:ti:rr^^^;7v of thern drank, the resnondpn//, ''^' ^^^''"a' Surely no one can do'ubt It "° !• ^■''^" ^*' ^^^^•• breach of sec. 66 and unl ! . *'*' constituted a ' ^''^ "'^^^^ "^^ subsequent Act of the 1875.] NORTH WENTAVORTH. 847 Louislature sucli breacli was a corrupt practice. The re- spondent's attention ha.l cvitlontly been attracts pre- viously to the law, which occasioned him to say ho d,md not treat, and this makes it the more remarkable that he .should have .so entirely overlooked or forgt)tten the pro- hibitory enactment as to having certain houses closed, and as to the sale and <:\h of liquors, etc. In reality, he' acted like one who did not know that the law required that the house should be kept closis and that liquons should not bo sold by the tavern-keeper or given away \>y .-inllivan or any other purchaser wliile the pollini; was in progress. I am compelled to attribute knowledge of the law to him ; nor can I avoid the conclusion that he was a participant in its breach. He went into that hou,se n order to accept a treat which his own remark shows he did not imagine would be limited to himself, and which wt- it so iiiiiited. The whole evi ience may bo thus summarized. About a dozen r the electors of North Wentworth met together some lime before the election for North Wentworth, to consult as t< -ir eourse, they all being of similar political view.s. By them and others the respondent was nominated, and ultimately accepted the nomination. James Sullivan was one of theii- body. There was but slight evidence given of their proceedings until the poll- ing day It appeared that they were not personallv summoned to meet— did not keep minutes of their pro- ceedings, appointed no chairman- but as they met one another, they agreed to meet and adjourn their meetin-'s from time to time; and it was argued, on these and sind- lar ground.s, that they did not constitute a committee— but there is no magic in that word. These parties united together for the common purpose of procuring respond- ent s election; they had some organization; they canv;. sed electors, procured voters' lists, and got reports on which they estimated their chances of succe.-.. Th.y are the parties, so far as appears, whose nomination the respond- ent accepted and acted upon ; and if they did not style rl''t;t 848 PROVIVCrAL ELECTIONS. [A,I,. themm.lve, a committeo or conimitl... ,. have a,Hi„„n,l U,„ f„„„.i„„. """""""O". '''"y wc.,n.,| („ Ketic ,„„,„h„,, ti", ! : :.;r"' "" !"™ '*"■ "" «■-■ sive, »pi,.ie.™, „„„,„.:::, ;: ; xtr^rr™- who were asaeinble.l on th. ^ )v , "" '^lectors frien,!,, the ,.,p™:,l:\ y; •■« 'l2>:.';;«».'''>"'l»"t- «8nt a„,l u„,l™i,|,|„ icno^i^P"""""' »■'"' I"' »'l™t co„. help H,e ™p„„,,„:,,, :rr',ri t ' r"""'^'' '» Porte,..,, a„,J U wa, concurj ,^ '™ f ,"," ''"7" ™l- «" r n,„ willing i„ ly . ' " '/ *» ,-«,,,o„,le„t. ,,,,1, of tl,u law. ' '°'««""ln«« at tho „„„„„„ beer «ive„ b, .S„,ta?w \: ™| . ?r^:^' V'''--'- he was one of those who ,no.- . ^^"^^'^^on. But which the law directed InnuZ ^"''"' '"*^° ^^'^ house jn accepting beer ^ a t t in otht ^'"^' ^ '^ •'^^"^'' "1 a literal as well as .uLT ^ ? '^'''''^'' *« « gi^t- ^^ ith a knowledge of tie IT I"^ ^'''""°" «^ ^'^^ l^-- not as if the nut tin , T'^ ''''"^^"»" ^h^''^*"- ^^ i when he wa proTe uLd^ ' '"'^*^'^" «*" '^^^ 6'^. nor given. Until tLT . ' ^^''"^^ "«'*her ,soM practice the ele ion w« \ ""' ^''^'''^ ^ «--Pt declaration, th eCt 7t, ^^r'^'' '"' ^^'^^ ^^at The concur ence in the -m '^ '''*'"" ^' ^"^^^nded. -akes the 1:1 a^tf J^^^^^^^ ^^ /^e prohibited acts consequence. ^^^Ponsible tor the newly imposed I must report to the Speaker accordingly. Cou^f l^pi:;^'"^'^* ^'^^ -P-dent appealed to the 1875.] NORTH WENTWOHTH. 349 M;. J. mil,,ard Cnmcrm, Q. C, }[,'. R. A. Haniaan, Q.C., aiul Mr. Thus. Robertson, Q.C., for appellant. Mr. hethune for petitioner. Haoarty, C. J.-The facts, a.s detailed by testimony fnen.lly to the appellant, are very clear. Davidson's tavern was or)un for the sale of liquor durin- pollin.r hours, although the fonn of dosing the har was observed" This was in direct violation of the ^.tatute. Several persons are assembled there. The appellant drives up, declares that he cannot an.l will not treat, and that some one must treat him. His supporter, Sullivan, accordingly .loes so; appellant takes a glass of beer, and two or three others join in Sullivan's treat. It is forcibly argued for the appellant that these facts do not show a corrupt practice committed "by or with the actual knowledge and consent of the candidate." First, it is urged that the violation of 32 Vic, cap. 21, HOC. 06, can only mean an incurring of the penalty of mo thereunder, and that the appellant cannot come within Its provision,s-(l) in the strictest construction of It, that it only applies to the innkeeper; and (2) on the wider construction, that he was not either the .seller or the giver of the liquor. Again, that sec. 3 of the Ontario Act of 1873 is divided into two sub-.sections which must be read together, and that th..' corrupt practice brought home to the candidate's knowledge and consent, in sub-sec. 2, must be read as only the corrupt practice mentioned in the preceding sub-sec. 1, " com- mitted by any candidate at an election or by his agent ;" that the facts before us may show a con upt practice in the innkeeper, but that the latter was not the appellant's agent, or that even if a corrupt practice in Sullivan in giving the liquor, the latter was not appellant's agent. It is pointed out that section 46 of the Act of 1871 for which the existing enactment has been substituted, provides that when any corrupt practice has been com- mitted by or with the knowledge and consent of any 350 PROVINCIAL ELECTIONS. [a.d. can.Iidate his election, if elected, shall be void and h 40th ":«! ^ '"^ ^"'-^^^"""■^ -^«*^^"*^d for this thJl'T' «;»«fc™ction of the existing clauses ur^ed hv the appelant seenus to have commended itself loth^ vell-consKlered Judgment of my brother GwyLe in very recent case(ZzV../. easc,post; s.c, 12 Ca^L J m I feel very great difficulty in brincdn. mv n iml tn H same conclusion. ° ° ^ ^ ^^ *'^*'' We have not much authority to guide us. It seems t. .ne that wo n.ust simply try to satiSy ourselves as to tl TaT" '' T ''''-'' "^^^^ '^y ^he Legislature We , to ask ourselves what was considered the wrono to L J: me ofT ''.''^ ^"^ "^ ^^^ not'neceLrily to table of anypelnVoLn" l I"" "' ''^'^ P"^'^^^ narv ^.uest miTfT ^ ^""keeper) at which an ordi- nai> ,uest migh be present and partake of such drinl- as the common bevera « 7 «' ' ''^^'''' " ^'^ has been connnitted by 'the candidnr' '7-'"P* P'"''^^^^ the knowledge and consent oM ,•"; ^"'^ ^-*^'^* ^^'^*'^ •should .ve C called 2^0^^ '^"'''^'^f^^- " ^^"* -'^v the plain language of L:::^^^,!^^;^;^;^-^^ iihcation. There is mnnK i ^ """ ^'^^ r™pt practice liJs agent with ta" But why Ij liberty with ^m the disqua- lie Legislatii 'lis l)ar closed iloing so, and that a candidate who encourages him to break the law shall thereby avoid his election. There are many other corrupt practices, besides the violation of the 06th section, which would not, unless committed by an agent, avoid the election ; and yet it is umnifest that if they were done with the knowledge and consent of the candidate, they would— and rightly so- have that effect, and would also have the effect of dis- (jiialifying him. Besides, the 2nd sub-section is not confined to the (t^n^^x- date ?.<;/to/M-s«6eMe/avVr/, but applies equally to the defeated candidate, who, if found to have been an assenting party to this or any practice tleclared by the statute to be corrupt, is rendered ineligible to be elected, and to the other disqualifications mentioned in the statute. The corrupt practice in this case was admittedly com- mitted by Davidson, and was so committed with the actual knowledge and consent of Mr. Stock ; and unless we are to import words into the 2nd sub-section which will entirely alter its plain and natural meaning, it is impos- sible, in my opinion, to hold that tne decision of the learned Chief Justice is erroneous. For my part, I think no other rational conclusion could be arrived at, and that the appeal should be dismissed. Patterson, J.— The facts which, in my Judgment, are material to the decision of this case, are not disputed. There is no doubt that David.son, a tavern-keeper at Carlisle, violated sec. 6fi of the Act of IStiS, S2 Vic, cap. 21, by selling and giving spirituous and fermented liquors and drinks to persons in his tavern on the polling day. There is no doubt that this was a corrupt practice in Davidson, under the Act of 1«73, .'J6 Vic, cap. 2, sec. 1. There is no doubt that this corrupt practice was committed liy Davidson with the actual knowledge and consent of the appellant, who was one of those who received the liquor or drink, whether he invited the others in and treated them, as some witm^es ^y, or was treated him- 358 PHOVINCIAL ELECTIONS. [A.I.. self along with the others by Sullivan, as it is put l,v Sulhvan, and by the appellant himself ^ ' The question is whether, under the.e facts, the app.l knowledge and consent, commits a corrupt practic" ^ ^ argued that as sub-sec. 1 makes void the elect-on ^ reason of any corrupt act co„.„utte'xst uot '"?(■ 360 PROVINCIAL ELECTIONS [A.D. reganl the question an relating , -nly to the sellin- of lirmo, attaveras. It extends to hrihery, undue inHu.nce. an,l all other prohibited acts which, according to the conten |ion of the appellant, may now be conunitted or practi.s.,1 by volunteers, with Ih, knowledge and coi.sent of the candidate, without my further risk than th.- rv^ of destroying the vot. that is inrtuenced, and incurrin.. the pecuniary penalty. If it is answered, that bv the candi dat.4s consent the volunteer beconi. s ad hoc "an agent su ■ a,,./ Jml July, ms. Before the Court of Appeal. Toronto, ISth and J-,th Hi'iUemher, ms. THO.MAS BoARDMAV, Petitioner, v. Thomas Scoir, Rc^'ipoiidcnt. Political a»mriiUioii — Annirii—i'Vlf ..,.„ ii „. _ ""v:^^^:;:, SSI.~t:?^.f-^*' *•- ■-• ^^^^ of t.. ana that sucl. t^.tinirw^'^rc^^^S pri' tiL^t'w *'°" ^'""^ "*«• opposing the other ( nmiSh „. r r?P"''^"J« *''« resnondent an.l meeting whici he attem e M .'."f' ,"",""' •»" '' '' ' ^''^ at another l.earn>g) that he w,^ act f^tl.^rn n^ h' "'"* "".* "' *''*' ''eBpon.lenfs once in the reiSiftt cf.n^mi'ttrv^ '' '•«"P'';"'«"t'« ''el^lf M. was SSfe e'cZSn^' ^^ '1"« ","« "^ '"*«"*• *"« respondent. p., a le resnniwlm,* i • „• o— "'"'■<""= purposes 01 the elec UDDortero ;/'''''"« ^•""'"8 '"'"'•« <»> "'« PoUing day. met one the bar being clo" eVl P Trea^Vf ^ ^ * '\^^^^>' "T^"* *° " t«^««^. ""1 //-•W bv the C^nTfl ' , 'e-Po'xIent in the hall of the tave^,. ofatearb?'^,^,^^^^^^^ practice and avoide'FJhe e"ect,o" ** ' ''"""' "^ P°»'"8^'« « corrupt aa the statute does not auC£ tl^SXil^r^Kr^of ^^^• prJc'tLr''*'''" """^^'"'^"^ *he usual charges of corrupt 1«75.] NORTH GREV. 868 le mun'bers of tlia Mr. J. K. Kor for petitioner. Mr. M. G. Cameron, Q.C., for respondent. The cases relied upon by the counsel for the petitioner at the close of the evidence, as sufficient to invalidate the flection of the respondent, are stated in the judgment. OwYNNE, J.— I propose to deal with these heads of complaint, upon which, after hearing all the evidence, the petitioner, through hi.s counsel, rests his case, in a different order from that in which they were taken, and I shall deal lastly with the most serious, involving a grave charge, affecting not only the conduct and character of the respondent, but his civil status for a period of at least eight years, if the charge is establirhed. No duty can be more painful, and .sometimes more difficult, for a Judge to di.^^'arge than that of estimating with discrimination and with due regard to the interest of the public on the one hand, and to that of the accused on the other, the proper weight to be given to evidence ill support of, or in refutation of, charges of personal bribery. There are so many things to be considered. We mu.st be careful not to be too hasty in rejecting the accu.sutory evidence as coming from a tainted source, for in cases of this kind it is frequently by the recipient of the bribe alone that the offence can be proved. Of the general character of the accu.ser we frequently kiiow little. Although the recipient of a oribe, his trutliful- ness may be as reliable as that of the accused, who always has a strong interest to maintain his position, even at the expense of hi.s veracity ; but again, the accuser may be a person of such a character and habits as to make it difficult to place implicit confidence in his statements, although it may be impossible to adduce evidence such as the law requires to impeach the witness as unworthy of belief. We must, therefore, in all these ca.se3 scan with care all the i.urrounding circumstances, for the purpose of determining upon which side the truth lies, namely, whether upon that of him who, while accusing another. 304 I'UOVI.VCrAL ELECTIONS. [a. I). acc.,.se.s hunself also, ..,■ „,..„ that of hi.n u-ho assort ; o.n encnnstances; the .uanne.- of the w t esse . ^1 as the .natter of their evi.I-nce ,„ust I.e ..nij^nth- >t. I; an.l atter all. all that aju.i.e can .lo is to ex s tr?:r''^^''"V^=''<^'^'-vMe evidence anlfi:: ".^ ot tae w-,tMesses have impressed upon his n.in.l ;>} iHoijre Wrijrht, ,n treatin^^ at nieotin-rs of connniff . ■n us own tavern. That a can.li.late ..^, l^^^ 7 -It ot the servjces of .nen.l.ers of a political a,sso at " n canvas.n, f.,r hin. and pro.notin! his election as . " Hke the.M lus agents, fo,- wh.,se acts he shall he rt-s, , .aet^,..ocanno,Ithink,..eany.,oul.t;bnt3 ; eo.il.l he ..ore .-epug.iant to comnion sense an.l jnsH ^ ^an to hol.| that hecause a political association pu S ^^'»' '>'• supports a particular can.li.late, theref.,re Ive v -n.I.er of that association heco.ues .>.;/..; hT a" bers of the respon.lent s c , ' . a '' T" '"''"■ -^.ufth:;ass.>ciat^:;.,,„;,^3nhr^^^^^^^^ >tn ul not very clea,-ly appear; it may be a.hnifcte.I tha he .n,,„,er. of the association who assen^bl a ^^ n^'hts we..e el.-ctors asse.nblecl to pron^ote the dec io. ot the respo„.lent within the 61st sec of the Act of IK. s as a.nen.Ied by the Act of IHTi . V . '"^ I • 1.. .. ^ °' i«7.j, so as to make Wri.rl.f u...»«ll,e attempted, but none can be framed applicable to all ca.ses. " It rests with the judge," as is said in tiie Wahfichl cmr (2 O'M. & H. lO-S), " not misapplying or straining the law, but applying the principles of law to changed states of facts, to form hif* opinion as to whethei there has or has not been what constitutes agency in the.se election matters." We have, however, the opinions and savings of some very learned Judges to guide us in arriving at a just decision, and first I may place the observations approved by Keogh, J., in the Sligo case (1 O'M. & H. 301 ), as a rule of general appli- cation, namely, "that the evidence ought to be strong, very strong, clear and conclusive of agency before a judge allows himself to attach the penalties of the Corrupt Prac- tices Prevention Act to any individual." The language of Baron Channell in the Shrnvshmj case (2 O'M. & H. 36), and of Mr. Justice Mellor in the Bolton 366 I'HOVINCIAL ELECTIONa [a.d. y (2 () M. & H. 140). i. also i„.str«etivc.. The f<,ra,er savs Canva.ss.„g will only aHbnl prcnises f...„ whicl a juX' •I'sclmrKing the function, of a jury ,nav JnZt ^ a..nc3 is estaUished ; " an., a,a^:i':;:"rS "t H. u„.lerstcK„J how far. i„ ,„y opinion, fmn, .^^^ 1'^ assuj^, those acts nu.st be fn.n. which you Z^' ^^ hat k,„., of agency which is to Hx the ca„,,i Z w An,l M.. Justice Mellor .says. " The fact of a nmn havi, . a canv,«s-l,o,^ is only a step in the evidence thlt "i can^a.se.• .«Mo,.«.«f h, the ca,ulid„t,^s ag.nts ; if you wa„t .> go tur her call the canvasser. ..cause the Ten. £ ot a man havang a canvass.l,ook and canvassing Ll aH^t the principal «... J .... ,,, „,,,, ,,, J^^' ^^ ^ i %-/. There ,s nothing n.ore difficult or n.ore delicate than the ..uestion of agency; hut if there be ev C I ild'lha 7'^'' ''^""^'"' ^"^ •' ''^" ^' eonscientiou ,; be held that his acts bind the principal. shou 1 ^t of l^iienris :: ■* "";:^ *" '"^- '"^^ •- -'» ^ >- - per on to. '^"''"''''^' ^''P"*^" and authorise tl... person to be h.s agent, an.l di.l the pei-son so author!.,. I accept thedeputation. U .o, to whatlxtent Ze^"':: or the perfonnance of a special isolated act, or fl" m vTuTlr"" "" '''' «PPointn.ent as agent ;i ral y but With power., contine.l to a lin.ited district con s .tutmg part only of the electoral division. ^ wt tl J 0. the authority =erj;::r^:^:^^ nature and extent of the liability of the principaT W oy direct positive evidence, or may be inferred from th. acts and conduct of the parties; Lt al, inWeT ex- ^**i^ 1875.] NOHTH OREV. 367 eluded If the evi.lence ignoi-es any intonti.m upon the part of the parties either to confer or accept authority and at the sau.e time shows with reasonahU- certainty tliat acts which m certain events might he suffieient t<. warrant the drawmg an inference of an authori/e.1 ageney havin.' iK'en created, are attributable to or e.xplicahle I. y other inHuences afleciing the mind and conduct of the party al ege.l to be an agent in the perforn.ance of the acts relied upon as estal,li.shing the agency. In such ca.s,. there IS no agency, an.l the party a.ssumed to Im3 a principal cannot be affected by the acts of the other Now, in the case of Dr. McGregor, the facts may be .rieHy .stated to be. that having heretofore been a n.em- her ot the party t(, which the respondent had been always opposed, an.l being a public man of considerable import- ance and public influence in the town.ship of Holland «.cently by Act of Parliament .separated from the North' Riding of Grey, and being very much annoyed and indi..- nant, upon public grounds or otherwi.se. with the separa- tion oi his township~of which he ha.l been just recently (" ected reeve-from wlmt he cnceived to be its ,m>irnl phieal connections, he resolved to use all his influence t., oppose the ministerial candi.late for this Ri.lin-r He publicly announced his intention of .so doing, as I gath.T rom the evidence, at the close of the meeting at which the nomination took place, or I .should .say previous' n- some of his former friends .seem upon that occasit > have called him a turncoat, which led to .some warm alt. cation. The respondent fonned a committee to act a.s his a-ents to promote his election. Dr. McGregor was not ont^ nor does he appear to have been ever asked to be one It is rehed upon, that upon one occasion he was in the respond'- ents committee-room; but the evidence shows that thi.s was for the purpose of consulting his local knowledge a,s to the most suitable places at which to call public meetings of e ectors in his neighborhoml, having regard to the then condition of the roads-the great depth of snow rendering mn I'noVI.VciAL ELECTIONS. [A.„. most places inacc.),s.sil)|,.. He hIs., «-„. . «• l"i"l.-l «i„l i-i,i.„l„u,| l,v n,,„, „„„i„ ' ""■ '" " I'"l« ' H.ai-,..s. He took also so.ue of ih.S , ''"' n.iKl.l.o,.|.oo,l u-he.. 1. .. : , '* aH """ 'r "'" ^''" •l<> so, ta .se e iar<'es iiiiul.. In- ,.., i- ■ ""^ P"M'I U, rr-'"- --•-«- -;,::;-;:; n * '^ i'Jn\tnt'(i at i>esborouL' i Tin,, fl, I^..ctor wa.s not an elector in the Ri.lin. tn t he 1 aske,! the Doctor to cT t t^ T T ?""" '^ '"^^•" liis behalf H H , ">«-'«ting to speak upon , ,:• "" *''""^,'''t IH-rhaps that it was verv lit i hismrtv T ' '""' aJ'^'natecl bin. fron. it may bo co„ee,k.,| tl,at l,„ wa™„ , ' -n '' "■'"■■ "'"' " IK Jiad nonitention to dismount 1S75.] XOHTH OHEY. :im unt. hoslmu .1 ...tl.erfail ..r succoe.! i„ .i\Wi\ug tl,cM.1.j..ct for tl.o tn.H. l....„. „..H,,,t t,, l.i, i,..a,t. „auu.|^^ .la,„a.: n- as tar a,s h. c.ul.I th- ...inisfy that I.a.l witlnlraw.ri.fs ownslup t..on, the Ri.li,.,. l.y th. .letVat ..f th- .a.uli.hu- ^ ' 'H'l H-„ put tonvani in thdr interest ; an.l I have „.. '1. i.t-at least such .s the iu.,..e.ssion left up.m n.y n.in.I - hat he never ente.taine.l the i.l.a of M.e.lin. llis own .n.lepen.lent .juarrel on hehalt of the township of which he wa.s reeve, a«ondent. This view ,see...s ,! !! c.sely to acconi with what the Doctor hin.,self give „s t<' "...iersta,.,!, in virtue of his dignity a.s reeve in hi" own townsh.p; and I confess that the evidence has i,„. ihy would every one wh<. can.e in contact with ti,.. Doc or dunng the contest, that whatever he did was ,lo„.. m he ca.-.y.ng on his own independent battle, wag.l th he nunistenal candidate for his own reasons ,t„l ml objects m connection with the particular matter whiW, fe^ive h.n. offence, an.l not in any sense as the agent of the respondent, a position which I an. .satisfied the .e- spondent never conferred upon hin.. nor did the Doctor r:;! tllr-t'"'^"'r"" of our municipal institution; s such tha ,t ,s not meet that public n.en should 1. ettered „. t he expression of their political sentin.ents, o.- m the.r nght to add.-e.ss public meetings of elector's du.i,,.. ttei 'Tnn " ;^'^' '"^ ^'"'' '''*'■ ^""^'^'-y *° '^-^^ -tent'; then publ.c sent.ments as expressed at tho.se ,..eetin..s should be attributed to n.ere advocacy as the agent of; 1N7:..] North fjREv. 371 i..».,. r,,„„ ti„.i, ,. ''■"" ,'""'"' T''- ""■"'>• 7"'" i'~-"""""f ""• '>-t,„.. „.i,„ i,i,„».i , „' , " TIk- IWt« i,.|atiiijr t,, tlii, r|,„,,,,. „,_. ,., ,. .•«t. k.twi.,.i, .-) „„,i 4 „d,»k i„ „,:„,, 1 , "''""''■ petitioiiLTs Hinet cs, nut havin-r Im.l „ ? "*^^ any n.f..sl„„ent .in e 8 o "in ^^.r'""'"^^ r^' ;inee S o'clock, an,. I .houid so I/aVh^'' . ""''""'' Mr. Patei-son very Ici mil v ^/ ".''•^ *''""'< i whereupon version, said thll^.e ^ ^i, "r^tl^ 'V'" "^^7*'^"^'^ ^is...odeof,ivin,..eJ.c:t;:'^'::^^^ ■ll^-^'ul or.acconlingfcoMr. Paterson s vers on fch ," -t aske.1 Mr. Patorson to treat hUnl^Z^'^Tr af,'ree.l to do, l,oth believini: this to 1« V I ^"'^''''■'^'^» they went over to^ethcrto i. '^ .T'' /«««'-'«%'Jy '^i^ closed a,ai.,::t: :sxj:t::;^7^^^^ get the.a each a glass of ale. for which Mrpl^ ^ ■' -a wh^h they drank in the hallor^f ^^^^^^^^ i£^.. 871 I'HOVINCIAI, Er.ErriuNs. [.v.r., ! liJ Th.. font,..nti..n now \h. tluit this ,..,n.|„,.t cnustUut I>nnW.lann.Unv..H,lH.MoS...t.,n..|l.^^^^^^^ tiMK c..nt,.„t,on. in linM.. i,. two capaoiti.. , ' " Kuvrof Hfrlass t..S,.ott; nn.l "ml i, ,i..i... • . n.>t .ncMvly as havi,.-, .l.-unk tlu- ,,|a.s.s wl j J,'av.. hi,,.. I.ufc als., tor l.avi,,,. ask.-.l Z hi...th.,i.. , n.Mn.at.^.:^l^^^^ a "I hoth ot th...... to,. |,.ni„.. „sk...l Sni.,..s t., sd "le- A"'> - it is c.o,.t..„.|...| that to,, thi a t t H '-;t only v..i.|,...t that Sc..tti..li.,,a,i;:!,'^^^^^^^^^^^ llH- arp.,..,.nt ,s, that it ,,s a violation of this da f the Act to,. an3- ,,..,...,.. wl.oth..,. tav-.-n-k..,.,,,.. or kcH,|K....or not. .Iu,i,.. ,,o|li„,, ,...,„, to soil 'or X H|..n nous or f..r,„c.nt...| li,,„.,rs wl.at..>-er wh.^ 1. ' -a,....H^.o|.s,.l,..t.,a,.y,L,..,,,,,J;^^;^',^-^ M a imvate ho„s.. or tor t,.ans,„.,.tHtio„ a!.,.oa.l .-v,., to. •"»n,c pa t> tak.-s a fn.n.l who does not live within tl„. ''|--e.pd,t,^a..lis...,tanelocto,■.l,o..^.toIi^^^^^:^:^^^ 111,,,, and L'iv.'s )■ m nf 1,; r . ""'m wiiii ^i>ts /,,,,. at Ills ( ,n,ii'r a « ^le^^tors L.l electors within s. 61 o^f tiie Electio^ llw "f Tse^""^"* *° '"^''^"'SB «f 2. That the ineeting of elertn™ f,^.. n, ■ ■' ^eetin^asse A f^^^So^^f'^r^ £ Sf "^^ '' ^ 'rt"tr„rit-f ;le^r:;-e;lrlr :r t -'X -atute > must be judged by all the circnmaL^. '""T '"'*'?^ J*.«°.' *"'! «»-' i"ten &mA/., wiiere it is done bv '""™'f "'^«^ ''^ «^'"ch it is attended; repu'tatioiiTo goo "feTlo^shiraiSl?" l" ."r'^"- ^"^ '"'*''« f^^ ''""^elf a electors to votf for him it sVsnlt^n^ '^^i; *"'' ^^^""^y to influenc his election at common law ^ "''"y- '^'"'''' ^°"W avoid '^^C^!^'i^J:;,i»^'!^^-;- of 'V^ business as a drove, ha., but to a less extent tlaifwa! his halT' an f*''"'. ^"""^ ^' ''^■^'' purpose of ingratiating himself wlttte'efecto";.' '^P''''*^"*'^ ''' *''« nJl-rlri^a^rtrSr.!' ""* ^"^'^ ^'-^-^^-^ -- -* -rmpt, and pltLr""^' "'^^'"^^^ "^^ "^"^^ ^h-^- Of corrupt 1875.] NORTH MIDDLESKX. 377 question was written In was not corrupt, and irges of corrupt Mr. J. K. Km- for petitioner. Mr. R A. ffarri.mi, Q.C., and Mr. Dmcaa MacMUlan, for respondent. xyV^'^T':' ^^''"*'''" ^^^'''''''^''' who lm.I oflbre.l one \ il ha.n Rohson a .sheep.skin if he would stay at home on election day-referred to in the judgu.ent-durin-. his exanunation .said that RoKson afterwards wrote to him asking for the .sheei),skin, but the letter was n >roduce.l J^or the detence a witness was called to prove the hand- writing oi the letter sent to Stevenson, J/n^.;T objected. The letter must be produced. Evi- dence ot the letter having been .sent was given by the petitioner, but no evidence of handwritin-r SPRAriOE C -I hold that it is not proved by the peti- tioner that the letter in .luestion was written by the person m whose name it is .said to have been written. The facts upon which the case was dlspo.sed of appear m the judgment. ^^ Spragge, C.-I will consider first the alleged bribery ot Michael bulhvan by Robert O'Neil. Sullivan was in possession of a Canada Company lot, and there was a diffi- culty in reganl to his getting a deed of it from the Com- pany The charge is that O'Neil held out to him that if he procured electors to vote for the respondent he would aid h.m m procuring for him the deed from the Cana.la Company, and it is repre.sented that the getting out of the^deed was intended to be kept hangir, ; over ^he head ot Sullivan as a spur to his exerting himself in procuring votes ; and, though in fact obtained before the election it was only very shortly before, and its procurement expe- dited m consequence of the commencement of an action ot ejectment by the Canada Company tilUf'^rtr"? !^ P''*P^"' *^' procurement of the deed 11 after the election is not denied, but it is alleged that It was tor a sufficient reason, viz., lest its being procured pending the contest might be laid hold of by the opposing 878 PROVINCIAL ELECTIONS. [a.d. upon Sullivan by O Ne %l"''P'''' ^ «--»pt practice to brin.. anv unle in« T '''^' "° "'"^' '^ '« ^'^i'L iiuj, un_) unaue mtluence to boar nnnn a.,ir '■■i'- hun by any in.lucon.ent to unpoTthe '"' 7 " inasmuch as be was alrea.lv and ifad L '^•''P""^'""^. a warm supporter of the pa'-'ty t i, the T'l^'^ belonged, and wouM in any event wT '^■P7''^'"t It is agreed that the actio' of 0^^^^^^ '"■"• "-ntof the deeds was accelerated ircnleouelr'r.r issumg of process in ejectment slV ^"f^'l"^"^^ "* the substance the case made by the pet ion- 1 . '' '" opinion the facts proved do nrsuotrtT M u" '"^' . Pathy was felt for Sullivan rbvJ.?^,' ^"^'^ ^.V"- lived upon and impro^vt^Thf^ rid'^f :;;:/:' r^H^-^rfd^"?^^^^^'- election I saTt 1 . , '"^'^^"^ ^"^ ^'^ ^^'"^ ^^ Sullivan is reTort d toT "»"f' ^^^'^'^^^ «*" -^a^ his evide.ce, that O'Neil spoke oil ." ''^' ^" good liberal man. or may ZZ^XlTltT tV was said to Sullivan, who had not known h'm IZ n IS contended that I must infer th^f ?^ , ''^- ^* ino- ,-<• f^ u 1. '"** '^"1^'' was said Caqsntii ng I to have been said at all) in order to lead Snll to beheve that the respondent would be inJrallJ^^^^^ him in money or otherwise-I snnn^ *"^'"^ 1875.] NORTH MIDDLESEX. 379 Sulhvan exerting himself on his hehalf in the election But this ,s not proved. Sullivan does not seem to have supposed that his support of the respondent had anythin^r to do with ^he getting of his deed from the Canada Com" pany. ^ He says he a.sked only one person to vote for him and Ned says very distinctly that his getting out the' deed from the Canada Company -A-as purely a business transaction, of a kind to which he was in the hal.it of attendmg; that Sullivan and another-one Fahey-em- ployed him for that purpose, and for himself, that he went to Toronto on behalf of both, and that Sullivan paid him U2 for his expenses and trouble. He denies very explicitly that Sullivan's support of the respondent had anything to do. so far as he was concerned, with the matter, and I think the proper conclusion from the evi- dence is that it had not. I have thought it well to discuss this question, as it was a prominent matter in the investigation before me. but I at least doubt whether O'Neil was an agent for whose acts the respondent was responsible. Two direct corrupt acts are charged to have been com- mitted by William Stevenson, an agent, it is alle"l.I bo received Z. !" t !„ '• "" '"^''^ '» -J-t "mke un offer ^v\nd, he nf . ''"."""• ^^ '^'•'l*<'''- > mv an.1 then, in the t^T^^f' ^^' taken .senous,^, hnnself afterwards with the n f . '?^ ^''''^'''^' •'*'^«'^'^^'' '•"^ '-kin.' at the pa tt ofs n '' ""^ ""'^ ^'^ J^^t; tl.e nature of the thLro^reT U, / '^ T' ^«'^'^"". a.., J«««-it is prohahie tha"t sl "n ' '"'"^^-^ ^'""-'- -• ^e -ys that it wastf a • rr"^'^*'-*-th wh..„ ^'--ted of all difficulty I.ytCirc^'V' u'"^^^"' '^ -n was not at the time an a ent of '^''"^'^^ '^^' «*-•-'- -natter occurred in the autumn L'f ^'^V'^'^P'^"''^"*. The -tness thinks in Octobe TL t?. V ^""^ *"^"-^'-' and. as the witness thinks after . ?^ ^^t^'rwards. -J^-h was on the l^oif^^^J^^f^ -'"-atio„, communication from Gilchrist fi"^^^ ''" ^'"'^^i^^^l a «Ponden, asking Un.tot:^^^^^''''' '' ''^ - was nothing shown to constitute ] '''"°"- ^here Another point taken ^ It 11" ^'T '^'^''^ "-^• were meetings of electo,^ ^^^T'" •'''' ^'^^^^'^-'^ 61, at which there was treatinl wU In .r^""- «^ -c«oa section, and that the same beirt^th 7"''"^"^" ^' *^^^ ledge and consent of the resnon ^ , ' ^'^"^^ ^^o^y. «eat. and is disqualified Mr'lS^"'' ^" ''"'^^^^ '-^« -s point is. that it is innnaterill ^'"'1 ^^^^^ention upon this V the candidate him e o 1 1 a " ''^ *"^""=" -- and that the motive and Lnf °'"*' "^' ''^ ^ stranger amended. innnaterialtLt !".'?'•""'" *^^ ^^^-^ as' the case within the se"" n .'^hV: TT' *° ''^^^ a meeting of electors, such as is 1 . ?'"""^ ^^ *« t-on and that it is with the actual t ^^ ^" *^^« •^^«- ;::iSe"-err.ad.k:r^jrs:^^ -"i5;:^sr:rr^f--^'-ection. construction then put upon U U- mv i""'''^ "^'^'^ ^ '^^e ence, that in that case the treatS ^ !' ""'^^ *^^« ^"^^r- candidate, not by a stl.! ^ 'ZTl'' Z'-'^'"' '' ''^ fe -But I thought in the ^o«^A 1875.] NOHTH MIDDLESEX. S81 Em,' mse {ante p. 235). tlmtaorrupt practice participate! m by an a^'ent, Leinjr l,y his participation a party tlieret.) would avoid the election. This was under the second pro- vision of section ()(i ; and this construction has now, I understand, been approve.l by the Court of Appeal. But my difficulty in this ca.se is upon the ipiestion whether the treatings in question were to ineetinj,^s of the eIector.s withni the meaning of the .section. I take the nieetin*' on nomination day and at El.son's as examples. I take"the meeting held on that occasion (the nomination) to have been a meeting within the .section. The meeting at Elson's, while of a different character, was still, in my opinion, a meeting of electors, a.s.sembled for the purpose of pro.aot- mg the election; and if the treating had been, in any proper reasonable sense, a treating to electors .si, a.s.sembled, I should hold it to be a corrupt act. But there are these material circumstances to be taken into account : North Middlesex is a rural constituency; the electors attendinc^ these meetings were foi- the most part from a distance^ their hor.ses and conveyances would be put up in the stables and driving sheds of the taverns of the place ; the meetings were in January, and the weather is describe.l to have been very cold. Then there is the custom of the country— not to be commended, but still to be taken into account—to take drink in the bar-rooms of taverns, and to do so in the shape of treating some or all of those assembled with them in the room, « the crowd," as it is 30 often called. Now, what was done upon the occasion in question was in substance this : After the business for which the elector.s had assembled was over, they left the building in which the meeting had been held, and went, some to one tavern, some to another ; generally, as I infer,' to those at which their vehicles were put up, and before leaving for home took drink in the bar-rooms in the usual mode— that of treating one another. I cannot think that (loing this is in any proper or reasonable sense giving drink or other entertainihent to a meeting of electors assfa.^ibled for the purpose of promoting an election. It m li.. 11; 382 I'HOVINCIAL ELECTIONS r^ now appear,, that tS ^ ! '" ''"P""'!™' ; «"■! it tlie treat on one at lea.t „rH """ ''"'<"''' "' a tavern. ' ""* "="*''i™» "> ">« bar „t «« 'tw'ct^vrt '"rr "■t"™ -^ --'»■■ c«, i,a po.,„,,e one/tr r eat „ ;,: l",t"'"» ',™- ally to a laeetm.' of electors U Zt . '*'™" '"<^^'- « («-. p. 20,U in ;lth I appfelT, eTt "l" f "",''" was done in this case is not l„ . , °'' '"" "I'"' «piHta„a.eanin ^nUlr ToCi;Tj'f ? ^"^• done in tliis case would be in ,nv ^- ''** '^"^ provisionsof the sectiorbe/ond Ij," V ''?""^' *''^' and intent. "^ ^" ^'^Sitnnate meaning con'^Sirbrj^uU^^^^^^^^^ ^"« ' '^^ -^-tain., the respondent at vaH ot^ tZZ 7^ ^^ ^^^^^^^^ ^v canvass, which occunipr„? 71^ ^^'^ ''*'"''«« ^^ ^is ing day The respondlf ' . '' ^'^'^'^ ^^^^''^ ^^e poll- si xteen'^yearsf XCdtt H ^'"''""'•:^»d has for the last +K»+ -i • .; ^°""^*^" the business of a drovpr w„ ana that he ha. S:^^^ IT 'hlu^ ^f I-™*' taverns in the course nf hi. i • treating at by the evidenc^fXt n^er He T. T' ™^'^ he became a candidate hJT ^ ^^ «**tes that when theRidinc. and went ni . "^"'^ Personally through with the deetorrthat o %r'"^^"^''^ Places to me^et treated; so^et^e; ft'nT r '''''^'"^ ^« ^''"^"-es and the treattrt'! '.""^^ '^•^'■^ ^^*h him treated; friends ; and "h! leatr " '^ '^^'^^ "^« ^^^ -* happen to be p esent IsT f'^ '^ ^" "^« -'g^* much less than wis hs hfbit ll' "*''^*' '^ '"^^ '' "- not more he sayTthan one fifth ^ "T f ''^ '"^•"^■^^' P-cally that^e treats— t^--:-"^ ™g 1875.] NORTH MIDDLESEX. 383 voters ; that he made no distinction as to whom lie treated ; that he had taken legal ailvice ; tliat he meant to ohej- the law, and thought that in what he did he committed no infraction of the law. As to which last, I will merely observe that if what he did was really an infraction of the law, his being advised and his entertaining the belief that it was not so, would be no excuse in the eye of the law. The treating upon these occasions stands upon a different footing from meat, drink, &c., furnished to a meeting of electors, to which I have already adverted. The law upon this branch of the case differs from the law prevailing in England in this, that we have not in this Province any enactment eciuivalent to section four of the Corrupt Practices Prevention Act. The Imperial Act of 1854 makes corrupt treating a statutable offence ; treat- ing therefore-— not to a meeting of electors— can only be reached by the common law, and must be of such a character as to amount to bribery. It is not contended by Mr. Kerr that the case comes within the old Treating Act, 7 William III., c. 4, which forbids treating within certain times specified, " in order to be elected or for being elected." I do not know whether it has been decided that the Act is in force in Canada, but it appears, as interpreted in Hvfjhcs v. Marshall (2 C. & J. 118), to be in affirmance of the common law, inasnmch as treating " in order to be elected " is only a species of bribery. The same may be said, I think, of the Act of 18.54, for to bring a ca.se within that Act, the treating must be with a corrupt intent, i.e., to influence electors to give their votes to the person treating them. My doubt has been whether the treating by the defend- ant in the course of his canvass, as described by himself, and to which I have referred, does not come within the definition of corrupt treating given by Mr. Justice Black- burn in the Wallingford case (I O'M. & H. 59), that " when- ever a candidate is, either by himself or by his agents, in any way accessory to providing meat, drink or entertain- ment for the purpose of being elected, with an intention :lHt PBilVI.VCIAr. Et.ECTIO.Va tui I tliiiik that thu ivsDoiid.Mif ;,? i • , , t.va.lin,, upon -lan-^oZ , "V ' "T? T^'"' '"' '"''' '''^^ his .eat is th.....; Zm r^/ \ '-^^ hol.li„. tl.a, ••upt intent, an.l in j', i^^ ^ •' T '''^"'^ ^'•''' '^ ^"'- "« lo nmko i6 Mly^ryJT Z ""■™P"^ '''""^■' » In tht. r/.?/"^ '"r''°" "'"'«='"""■»>■ law." M"»tio„ a, t„ wLat,!,, t . j^ f * tdT '"'°" "" corrupt treatin.r J «„,! fi. ^^ ' ^"''* amount to very Lful little vo k ' lo^i^r;,' '"Z^^'- ^'-^'^''^ tions," at page 21 I ,;„„; , "'^'^ '^'' ^^^^ «*' E'ec- (1 O'M. & H. 19), Blackburl ' !" ^''' ^'"'"'^'^'^ ^«* •with the object and inVn ' ff ^*^'''"P%' means Legislature pCnl IrnttZf/^^t^^ ^'''^^' *^^' (/^'•'A p. 105) the '^J:^^^-^ f' ^7>-'^ - •Heans ' with a motive or intent^n 1 "'"^^ ^''"^'''^ or intention by means of it to pro- 1S7.).] NOUTU MIDDLESEX. 3sr> .luce an ort'oot upm, th.- d.-cti.,n.' I., tl„- Lhhfidd ca.nr 'p. 2.-)) VVilluM, J., suys ticuting is f..il,i,l,l,.„ ■ wl,rn..v..r it is rcsortfl to for thu purpose of painpnin- people's ai.pe- tite,s.an.l thorul.yin.Iucing voters either to vote oral. stain from voting, otherwise than they wouM liave .lone if their l-alates Im.l not heen tickle.l l.y eating an.l .Irinkin-r sup- I.iie.l by can.li.lates.' An.l a-jain, that the treating „n,st Ik.' .lone ' in order to inHuisnce voters ' (p. 20). And so in the same reports in the 7\nnvorf/i case (p. HW)." The Chief Justice als.)cite.l the C'amjy;v/,v,.sv(/A(V/p 100) and the Wnllin,ifoM ease (//>»/. p. :,7), in'whieh it wassni-i hy Blackl.urn. J., that "the intention of the Le-dsJature in construing the wor.l 'corruptly,' was to make \i a .,ues- tion of intention;" als.) the Bnalfm-d ,v^sv■ (IhuJ ,, ;}7) where Martin. B., n.s to the meaning of ' corruptly " says • "I am satisfie.1 it means a thing .lone with an eVil min.l and mtenti.m,and unless there Lean evil nun.l or an evil mtention accompanying the act, it is not ' corruptly ' .lone. • Corruptly " means an act .lone hy a n.an knowin- that he IS doing what is wrong, an.l doing it with an evil •'f^^' • • • Tl'i-'''^ I'lust be some evil motive in it an.] it must be done in order to be elected." Without .subscribing to every wor.l c.'.ntaine.l in the passages .juoted, they contain, no doubt, upon the whole a sound exposition of the law. The e.xtent of the treating and the .luantity of drink given .shoul.l also be taken into account. It vvas sai.l by Wdks, J., in the Lichfield case: "It may be doubted whether treating in the sense of ingratiation by mere hospitality was struck at by the common law ;" but he goes on to say in effect that it is now forbiilden by the Act oi 1854, whenever resorted to with the corrupt intent ot influe 'cing voters. In tht .-eating in question there was the reverse of pro- usion; there was not more but much less than the usual lio,spitahty practised by the re.spondent, .so that there is • eady no room for saj-ing that the respondent was actu- ated by the intention of ingratiating himself with the ■fe. sho '•KOVI.VCUr, VA.KCriOSH. [ad. of i"tention. um.I o.:!;;!:^; :;';^;- "'"^" ^''^' 'i'-^i- a matter of fact the evi.len',... t. T "'" '^""••^"'^''•'""K n. -^•■"ti.m .loes oxist;;^r "'"'''"• '"^'«" "'"'"^ -"-. -. on what sc-a e a U. 'wT T '?""' '^^ ' '•""•"' So Mr. Justice VVilles in , . r ?'^'"* '^ ^^«'^ •^'^•"• '■» ti.e course of an elect on ,,'■'"'' «'"^'" ^" '^ ^'"t'- f-tin, that elect. '.;;;;''' '"^^^ ^'- ««-t of .,..- ^-' ''a.l sai.nn a , .evi ,H ^1 7^'^" .^'^ -^P'-" what P-ed ..that treat n"r: TlfT"^J['''' '^ ^^ -I'- ^ treating, if it ^tre r . !" ''^ "^ ^'*''' ^«"'^' '" ^ vote or notto V t 'aI Srr f" '"''"" '^ "'^ *^ ■ «-- - not ^"Hicient to W H : :;:;Xr:; ^'" "'"^^ ■^•on that the intention exisfeJ f /. ^^'^^ '*'"'-''"- by - ,s.nall a .uanti; of ^or ' '"" '^ '"'^"'^ ^^^^ -pt::n::"i::;r::fr''t''^"'"f^^"«^---eo'-- tHecimnnstanct itwJchrttT ^ j'"^^-^ "*' '^y aH the evidence led n,e to tl^ J , ""'"''?'• ^*" ^'^ *'"« ease <'id what he did i o I ' ; 21 rV'"' *'^ "'^^'^-'-^ *-• .-d fellowship L^^^^'^"^:^' r^^tation ence electors to vote fn- ' '^'5*^' > '^'"^ thereby to ir. ,. " '^ election at evMenee, it „ 'e'l: » m'.eT'r"" °" °'' "- was nothing wronir in ihl . , ^'^"''^"«'on- There entmaki„/hi.cant:t ,l^ttiT r ^'^^ "^^P^"^'- and he doe. not seem to hive abuse "the" "' *''"'"^' "•eeting them by seekincr fn 1. ? occasions of so Perin. their appe'titr^r^k triVotf" ''"T '' P^'"' Ia;>; ..Lend that I must be a^rto . .? ^' ^"'^""^• oe abie to see with reasonable IN7.V "pon this hml ft'M not .|u„te.| in "" (I (>M. ,<(: f{ •t the amount of '>on tliu (nu'Mtio., con.si(|fii„g a,-, 't«'" "^' .'run 101, nt it was (iorif ' w (11, 8;j), ,says '''•' not intcml ivun to a vottr le efil'ct of r|,.. int'd Jiidye ill explain w|,„t not to be Niij,. eer would not Jce a man to if election at tion of the on. There le respond- at tavern.s, iions of so s by pani- ue means, •easonable «AMT NOHTHIMMKHI ,.VI). 887 .•;-^i..t.thathH.asdom.thi.l.,...^ Th.. eav, made „f «„ attempt bv a l)r Saiir. * i •. "^ *"^'' f'" the resp, p. 2.1) EAST NOHTHUMBERLAM). BkfOHE Mh. Jl-.sTicE GWYXVE Hkxhv 8. Casev, 7..^.^.,. , J,,,,, ^^^^^^ -; ^^^^^^^^ Hy the constitution of the Hefom. / ' '"•^'"''"■'" "'""'•''• {•■■oniote tlR. election of tl e can.l^li ^''"'^'•'"t'on «a« actively*'to rhe ■■espou.ieut ha.I himHelfU? « " vilT"'"'' V ^''^'^o-'vention. tion, ami w,v.s familiar with ite ohiect?a,n %T'l- '' °^ t''«.««ooia- a.s a aelegate acted and canvassed for othir .''""f.*|*»'"'."- . "e had also "as responsible; and that ai anV'nTT .^" "S*"'^' f*"- ^hose acts he ;lole«ate to suoh •associath n an^f who !" ""'^ "T""^**'' •'^ °»<^ R a for the respondent, avoide.l Z ell'um ''*'' "'"^ otherwise acted 388 PROVINCIAL ELECTIONS. [a.d. authority that W.. an i.ulepenS caJdE T'' " ?"" "ndoubtcl himself was procuring his frienrto vote fo^'. •'««?■*'""«."; election date. W. denied the truth of this report "PPosition can.li. franchise of voters. "nertere with the free exercise of tlit, Mr. D^Alton McCarthy, Q.C., for petitioner. Ml. J. D. Armour, Q.G. for respondent. ranf^MrT •''" T^''^''^^''"'^' ^^^b and Coch- rane. Mr. Ferris was the nominee of fh^ R^f^ a Men, and was the .,„cee.f„, ^iida . Yllt :r- Wore the polling ,„„,e ,ette„ „, cireula,, w fe ,™ I Jitferent leading men, stating that Ml- Webb anil,, ent candidate, had despai^d of snccer.nd wante';;: triends to vote for Mr. Cochranp f>,« n wanted his aata M. Webb denie.uf;S:^J t'TsTe^r ^^"^'■ The mam points disposed of at the trial were ri) as fo the agency of one Richmond, a delegate to the^Ref , ' A.s.sociat.on, and an act of bribery said fn 'n , njitted by hi,n whe.-eh.v it wal ^^nl "t ^sprd::- ;;^..ch .t „as sa,d was a frandulent device to inll„e„„ rs^'tite^::;-^^^^^^^^ manLe, ^^ ' «"'™"".'>°. ™ «» -pects and inthes.,,,. hab,t of domg for that purpose; that the candidate ■'■«*kja».,J 1875.] EAST NORTHUMBERLAND. 389 charges of cornn looked for, expected and demanded such their assistance and agency to carry his election, and that in consequence thereof, and because of the perfection of the organization as a canvassing and general agency to conduct the election, the candidate chosen by the convention" appointed no agent of his own, but used those provided by the organiza- tion. The evidence also establishes that the respondent was for six years himself a delegate-that he was well aware of the nature of the organization— that as a dele ""' been com. election void ; """ «'°""'' ''"o'^-^'l ««■ i-uing of that circula; we^ Ison !. '' n '' '''' Richmond, who was himself ofe of , ^''"'"^'' ^^''^'' same reason be regarded a thp 7' !""'* *"'' ^'>^' whom he must be^hl r^ Jb^^^^^^^ opinion that, even aasunungth matters. .'"""'■ "*' circular to be false to the know I ofthe n . ' " '" ifc.it does not con.e within the 72nd ^Tf '''"'"= ms, which enacts .b«f < I ? ^^''- ''^ *^'^^ ^ct of indirLctlv. lyZ^Tor b?'"^ t "'' ^'^" ^^^-^'^^o,. Half. by^an/,r:!: tw:rof:o^r ^^'^^'^^■ prevent or otherwise interfere vTiththeT''- ""^^"'^' to the present TherP fh ^^ ^ny resemblance which. 5 it i::d bltri ;eT.:^ttt i -^^^ ^-^ would have been calculated to hJv the eft^crof "T1' ing persons, without anv exercise of 7 ""'''''^• their nmrk on the ballo^n^n ^*.J"'^g'»ent, to place nan,e onl,. and t W r^allCt'^ T^^"^'^"^''^ l>y a trick and deception ^01^^" v T^' ^''''''' at the time of votin. ', ,• , ^ 'Candidate for wlio.n the case before „'' ^' "' "'^* •"*^"^' *« vote. I„ the «fcaten:!:n.n^ '^.xt b:r,'^ r\ '- ^---^^-^ of the parties i.ssuing it) 1^ tt^t ^ ^^^^^^^^^^^^^ appealing to the elepfn... f • -^ ^ talsehood i I o "" uiie electors to everpi^u <•),..;. • i voting for the friend nf f I '"'^^'^'■^'^ fc^eir judgment in ."tended to cove. «e, whe. ;^t::;th':;hirt^ ^^«- fA.D lie did make. [The igfch the evidence or, bery had been com- ground declared the Y, the i.s,suing of the ing the polling ,Jay, 1 the parties to the who, equally with iliem, must for the 'ndent's agents, for I am, how M'cr, of ■ters stated u\ tlie the parties issuing sec. of the Act of lio shall directly or person on his be- ntrivance impede, tree exercise of the to have committed in my judgment, (2 O'M. & H. 60), any resemblance ined of was one i intent imputeil, effect of mislead- idgment, to place the respondent's to make persons, didate for whuin 2nd to \'ote. In ^aid is (assumino' 'O the knowledge e_l\V a falsehood eir judgment in >g the circular. the statute was though it be by 1875.] LINCOLN. 391 falsehood and slander, appeal to the electors to exercise their judgment how to vote. Election squibs, it is to be regretted, are accustomed to deal freely with the character of opposing candidates ; this, although a practice which is immoral in the extreme, and to be condemned by all honest men, has not as yet, in my judgment, been touched by legislation. (9 Jmmal Legis. Asscm., 1875-6, p. 17.) LINCOLN. Before Mr. Justice Gwynne. 8t. Catharines, mh to ^Jnd May, Sth to mh Jidy, and mh tSeplembei; 1S75. Before the Court of Appeal. Toronto, mh Dm-Tuber, 1875, 3Ud January, 1876. JoH.v Charles Rykert, Pditioncr, v. Sylvester Neelon, Respondent. Treatini/hi a tawrndurln;i polUmj hours— Pmaltie^ on tavern-keeper and purchas-r-Bnbery by responded in compensatimj for an injur)/ to a -J*,"""f'~ '* knoiBledije by candidate ofayeiU's acts ofbnuery One L., an alleged agent of the respondent, went into the tavern of one D (lunng polling hours on polling day, and purchased spirituous liquor! with which he treated himself and several persons tliere present. IMd, per Gwynne, J. , that the penalties provided by s. 66 of the Election Law 1868 apply only to the tavern-keeper, who as such is able to control what is done on his own premises in violation of the Act, and tliat the treating by L. was not a corrupt practice. Per Draper, C. J. A.—l. That section 66 of the Election Law of 1868 must be construed distributively. •I That under the first part of the section the tavern-keeper is the only person who can incur the penalty, for not keeping his tavern closed Qunng the prescribed time. 3. That under the second part of the section, the percons who incur the penalty are (1) the tavern-keeper who sells liquor in violation of the statute, and (2) the purchaser who gives the liquor purchased by him to persons in the tavern. The wife of one S., a voter, had been injured some years before the elec- tion by tlie hor.,es of the respondent, and in 1872 the respondent gave h. compensation for the injury partly by cancelling a debt and partly in casli, for which S signed a receipt "in full of all accounts anil claims whatsoever. The respondent canvassed S. during the election, saying, I would like to have you with me at the election," but S. 392 PROVINCIAL ELECTIONS. [A.D. letter, which shp H?!^**^' ^'^ ^J"'^'' she rep e 1 «h * *''« '5«Pon.lcnt ...4.,, i„m ,,g 8howe,l that an imlirect'offpl'*'^""'"* ^"'!/""e, J.), That tl,P « • i At a lat I ® ''^" fondlnl7etTJtJZ S'l'^ f''-^ «'«««on ^ome agents of th. ^;o, this act of hi/aS.' "" ""^'''''^-^'^ ''"-W o?S":='o^„S The petition contained the usual oh. practices, and claimed the seat fH T' "* '"^"'"P* successful candidate. " *''" Petitioner, the un- tiof r."^ ^- ""^'^^^ ^''' '^- P^^^tioner in person for peti- ^r. J. G. Currie aU Mr. BetJu.^ for respondent ou^t^:c.r;rL:^^^*tr^^^^^^^-^- that one Patrick Larkin. aTaLe^l^^^^^^^^^ ^'" ^''''^ ent, went into the tavern nf ! "^ F ""^ ^^^^ ^'espontl- pollinghoursonthepl" i ' .?'' '^ ^^^^«^^ '^"^ing there present. (^ouL 2 2''"^*'"'^*"' '^•^"^^^^ P--- this treating duringpotith ^^ ''^'"^^ ^^^^^^^^^^ that of the Election Law oUsfif a^ "^'^^ ^^^^^'^ of s. 66 (earned Judge held it wlf^ra^^^^^^^^^^^^^^ /^^^ judgment on that point not hpl ^ f ''*''^' ^"'^ ^'« tioner. is given as foCs '''^ ^^ *^^ ^'''' 1875.] LINCOLN. 393 n person for peti- GWYNNE, J. [After stating the facts and quoting the 6()th section of the Election Law of 1868, proceedeff:] 1 confess it does appear to me to be inconceivable that the Legislature could have contemplated the possibility of the section in question being open to the construction that whenever any person, whether a resident in the municipality wherein the election is going on or not, and whether an elector therein or not, sells or gives' any quantity of spirituous liquors, whether by wholesale or otherwise, to any person, whether an elector in the muni- cipality or not, and although the transaction, beyond all (luestion, had no relation to, and has no effect upon, the election, the section is violated and the penalty incurred. If then it be, as it appears to me to be, impossible that the section should be construed literally, we must, in order to construe it in the sense intended by the Legislature, endeavor to ascertain with what object, and in order to guard against what evil this section was enacted. And I confess that the difficulties suggested against construing the section as containing two separate and independent offences, appear to me to be so great as to involve the necessity of excluding such a construction, and of reading the section as defining one offence to the committal ol" which the prescribed penalty is attached. The prime object of the Act, there cau be no doubt, was to sec^ire freedom and purity in elections. The particular section in question is placed under the heading, " keeping the peace and good order at elections." The giving spirit" uous liquor airectly, for the express purpose of obtaining a vote, or after a vote was given, in pursuance of a pro- raise made in order to obtain the vote, is sufficiently guarded against, independently of this section, as an act of bribery. The indirect influence which might be exer- cised by the providing any species of entertainment or drink, whether previous to or during the election, to any meeting of electors assembled for the purpose of promot- ing the election at any place except the entertainer's own private residence, where such entertainment is permitted. 1' K:^ 394 PROVmciAL ELECTIOXS. [A.D. and the pavino- nv ,...•• ^■^•' ;h eh the parties pJal^^n^T^Z ut '' ^"^"^^-' '"- an. whach ,„ight injurious]: atfetth f T^'"^'^ P^^ ^ ■ oi the election, and from whTr . f r^^"'" ^»^' PuHty other breaches of the peTcellt ^^ ''"^''^"^ '^^^ ^n election should be uninfluenced r^, """^ '^^' *''^' the use of spirituous liquorrat a^/7,r"''^ ^''''''S f'-"'" Po"m. day, this section was L ^^ "'' ^'"^^^ •^"ri„., "every hotel, tavern an^l ropTnttT'' ''"^ '"^^^ ^'^^ -en ed li.juors are ordinav K.^o^S inVP'"'"*^"'^ «'' ^-- the day appointed for pollin^Tn A I "" '^"'^^ ^'""»«- ties, that no spirituous'o "fn^ted T^' ^-""-eipali! •>^- g;ven to any person with ^tt P I""''' ''^^" ^'^ ««'d -Pahty under a penalty o.^O '^ ^"^^ '"""i- That ,s to say, in ever/ca iTwr T'''^ ^"^^^ «^^-" tavern, or shop-keeper shall In 'T /''' ^"^ '^"^h hotel -"o.give such spfritufu! il":'''"f •'' ^'^'^ «-*'- «uch to be sold or given unon K ""' '^"''^'' ^^ Pe"nit But assuunnc thtr^^T '' P^-^'^i^es. ^ t-ating. which\ ai l^u'^r^Vr-tion, still the tion of the Act of 1868 I ''"'''''^ °*' the 66th sec hotel-keeper, within hVX: f ^ ''''' ^'^^'^'- t^l of which McClelland. Cellfa^HTTf ^^^^^ the drinks, undoubtedly guilty of a vio atitn J ' ^''''^^- ^^^^^^ ^^ prosecution liable to its p nat It 'f'"'"' '"^' "?«» that the act of selling by Dovle^« ' "'"^.'^^ ^^«« admitted t-n, is, under the pr^visiS' ^L'? 1"^'"° ^'' *^« - «ap. 2. a statutory corrunf ! ! * '""*'«» «f 36 Vie though the act /asTve Lr'"Tf f '^ ^«3^^^' ^ l' have,and although i., had notTn Tf ''' '^ ^"^ '-^ to "Pon the election, and that mor 'T^ '^^^^ ^^atever ^oyle, upon his being ^::erdlS^^^^^^ 'V ^^^^ aoainst and found guilty 1875.] LINCOLN. 895 under the provisions of the 49th section of the Act of 1«71, w,ll be rendere.1 incapable for a period of eiffht years o bemg e ected to and of sitting in the Legislative A.ssen.bly, and oi being registered as a voter, and of votin. at any election, and of holding any office at the nomination ot the Crown, or of the Lieutenant-Governor, in Ontario, or any municipal office. Still two questions remain : First! v .s Larkin also guilty of a violation of the .same 66th se^ - t.on within the meaning of that section ? And secondly assuming him to be, and that he was an agent of th^ respondent IS the latter's election thereby avoided ^ The answer to the iirst of these questions depends upon the and to the latter upon the construction to be put upon the .^r section the Act of 187-1 The 66th section undoubt! ed y says that no spirituous or fermented liquors or drinks shall be sold or given. Now in the case in question, certainly in one sense. Lar- km, as the person treating McClelland. Lavelle. and Todd may be sa,d to be the giver to them of the drinks which th°al th T ''' "'"' '-'''''^ P^"^' '^"^ it is contended that the .section is pointed against the hotel, tavern or shop-keeper and that it is upon him that the penalty i Imposed, and that where a tavern-keeper sellsaglas. o dunk. It wlnle A. pays for it. there is but one act done ui violation of the statute, but one offence committed :n:iti::rtf '^^ *'^ tavem-keepei, and that to andte T" rT'''"^' '^' «"^ ^'^^'^^^ ^he .seller and the other against the treater, for one and the same wh^h Lavelle drank, was sold only for the purpose of being drunk by him, although Larkin paid for it For eti! \ir t: y^ '' ^""^^ «*• ' violation of th section, and for that glass, for the sale of which Doyle is responsible and liable to be disfranchised for eight yar ^ible and be subjected to the like penal consequences as I' £' .4 f i Sdfl PROVINCIAL ELECTIONS. r given within the meaning of the Act ,,.,.,...1,. . pays the price instead of Lavell So ^ 'u'T '"' •censed to soil H.uors sells a clL o tiL t^A '"T" ■nake the shopkeeper liab^ CZl^^'^'Z^^r iMsnotais;i:::i^:^i~:,^^^;^-ciH^^^ a pomt which would n.ore satisLto,% L mi'ed u. ' prosecution for the penalty under the statute ^7 " there seems to be rrreat fo,t. in I ^ *^''"*^''*^ view be, ., i. .eelfr^ r^' K. 'tZlTTT " ''" '"" alone to point .gainst hotel tat™ LTsZT'"' upon wl,„,e premise, spiritu™, 1 , 1" f nd dnlT'*'' o.-Jinaiily sold, and ivho have it in tV ' ""' what is done the,., then the;'„ri"s s ir™v«°°r'°: be Innited to the hotp) fn^o^r, i ^ " '""'^^ mean sold org venb'liimtr' *?■.'"''?'■• -"J ".mt to prevent the Ziblivrfth .*'™ '■'*'"« "'*'' W the ^naU^eS^llttCi^rrntr:'' detence that he did not sell, but himselCe "L d' i L' That th,s ,s the true construction seems t„„,.t be-ing JnX're til rl'sS^ :*"'; »'""■ 66th section of the Act of 8fiS TT1"'"^'''S with the as it should be on <^,S f'^. ^'^' ^^ ^^e same manner .i*„uso..t:rt:Xo::i.fSsXrh;:^^ 1875.] LINCOLN. 397 given during the .said period under a penalty of 3100 against the keeper thereof if he nej^lects to clase it, an.l under a like penalty if he selLs or gives any .spirituous or feri..rinted liquors or drink.s as aforesaid." What was meant by the ^'ords in this section, " in the same manner as it should be on Sunday durin-r divine .service," is not very clear, for there was no law that I can find then in force in Canada prescribing the duty of hotel and tavern-keepers to keep their houses clo.se.l in any par- ticular manner during divine service on Sunday. [The learned Judge referred to various statutes on this subject VIZ., Con. Stats. L. C, c. 6, s. 27 ; Ibid. c. 22, s. 5 • Con' Stats. U. C.,c. 54, s. 264; Imp. Stats. .'} George IV c 77; 9 George IV., c. til; 11 and 12 Victoria, c. 49- and proceeded:] But none of those statutes which have re- terence to the period of " divine service on Sunday " had ever any force in Upper Canada, and it was drinking .spirituous liquors at the places which constituted the offence, during the hours of divine service on Sunday It IS difficult, therefore, to understand what the Le<^i.sla- ture of Canada meant by the 81st sec. of 22nd Vic° cap 6, which in plain terms enacted two penalties against the innkeeper-the one for neglecting to "close his hotel or tavern in the same manner as it should be on Sunday during the hours of divine service." and the other "if he should sell or give any spirituous or fermented liquors as atoresaid. How the offence of neglecting to keep the hotel or " tavern "closed in the same manner as it should be on Sunday during the hours of divine service," could be com- mitted in the absence of the sale or gift of any spirituous or tennented liquors or drinks, and in the absence of all drinking suffered or permitted at the hotel or tavern. I fail to be able to see, and it seems to me that it was most pro- bably this difficulty which induced the draughtsman of the Election Law of 1868 to strike out these ineffectual words, and so to amend the section as to do away with the double penalties, and to enact a single offence with a 898 I'ROVINCUL ELECTIONS. [a.d hotel, tavc,-,,, .„. «ho„ r w K '""'" "'' ''""'" »' 'V u-l in the Act „f ,«o,s „," „ It v- *'"'"'• '-.v.,y ,„„i„„ ^ i„di;.t «:/!.. ,:-;i:f- «•-;■;'« w-» wel, «.,Sj ";:':;"™ ;' «'>';;«on, an,, w,,,, an« P™» -tion wa, taken, to nlntta^^'slT iu,''''.!'' '' *^ observed that in all th. nk '' ^"'"^^^^ *» be any reference to th wo Js ?? '''*"!" '" ^^^'^ ' «"<' -iee;-anae.p:L^;::^,^-^^^'^-^^i^^^^ ^^=r;e:r:r-^'r--"^^^ -Icl. and who as u h ableT "" t"'^ ""^ '^"'"-'•^Iv hiH own pre.„ises fh„V . '""^'"'^^ "'^'^^ '« J«n« «n fixeiiiises, that is made mnUv m' u h- upon whom the penaltv fo, 1 ■, ^^'"^ ^^^'^^^^ ^"'1 is imposed. * ^ ^''' ^'^^ ^'°^^*i«» «*' the statutes in this respect 1 sue ^^Lt i^ ' ^"^ ^"^^^^ ^^^^ person who can he n-n ? ' "^' "P'"'«"' the only of the statura^utjrr h*: '' '1^' ^' ^ ^^«^^*- poses, and consequently he s 1 7 ''" "'"'' ^* """ terms of .section^ of the At f m, '™k "'°' ^" ^'^^ guilty of the corrnnf ^ .^''^ ""] ^^^^' «an be .said to be a vioktion of th 66thT ;" ""l']! *'^' ^^*"*« d-'^- polling, hours, to be ' '" '' ''^ ^^^ «^ 1«««' -ithin -^lst;2Se H '^f • ^"' ^""^-^ - -^^ a of election, which wa 1 ^^ '""^^ ^"' '"'^^^'" against; ancHhe Lell . '"'^ '''*'"^'^ *« ^e guarded that object s^fficientfrlt""' T.""' '''""'^' ^^-d-"-' of the hotel taverf o^ u^^ ""^^'"^ *^« Proprietor ' *^'^''"' ""' «'^«P ^here the spirituous liquors ^^A»Ajiii»ij,i, 187.).] LINCOLN. m{) are ordinarily .sold, an.sweral.le for wluit I.t- i-enuits tu he done in violation of the Act. Bat assuming in tl.e ca.ses put of the treat at the hotel ami tl.e purcha.se of the .hm-n of wine at a shop, that not only the seller i,s liable, hut also the person who pays the price, and a.s.suuung the latter to he an agent for pro- moting the election of a candidate, will the can.li.late if elected, forfeit hi.s seat by r.;a.son of such act within the meaning of the 3rd section of the Act of iHT.i the first .siih-section of which enacts that " when it is foun.l upon the report of a Judge upon an election petition, that any corrupt practice has been conunitte.l by any can.lidate at an election, or by his agent, whether with or without the actual knowledge and consent of such candi.late. his elec- tion, if he has been elected, shall be void." If a person who is a candidate choose to appoint as his agent a hotel or tav,.rn-keeper who ha, an independent interest of his own m violating the statute, and who,se violati.m of i* may, as it certainly might, lead to violence en-lan-^eri,,.^ the freedom of the election, it would be plainly proper that a candidate who appoints such a i;er,son as his a^nt should have his election avoided, if his agent .should .so conduct hiuLselt in plain contravention of the statute, and we should not stop to inquire whether the violation of the statute did or did not in fact affect the election It is .sufficient that it was well calculated to do so An.l it was because it was ^vell calculated to do so that the section prohibiting such practices, and that pronouncing them to te corrupt, were passed. But it seems to be cpiite another lung where an agent, not him.self a tavern-keeper, and "Mng in need of refreshment, goes to a tavern, and for that purpo.se buys there a glass of beer. wine, or other u,uor for him.self. and at the same time treats a frien.l or wo to a glass as he would on any other occa.sion, such neat having no reference whatever to the election, and, It may be, being given to a person not an electo.-in such ca,se although the tavern-keeper who .sells the liquor would undoubtedly be guilty of a violation of the 6«th 400 PROVINCIAL ELECTIONH. [a.d. > 'fl Nection of the Act of iHiiH, ft,„l so of th,- .faf„f ;;Pt Praeti. .K-elare., hy th. Aet'of' . r J.:: ...u,.h tl... a,^.„t ,nay also be in like.„anne.-,J y tlu. uuKKr,.t pnnnpal in such case have hiHcL avoided by .such tieat ^ '''^^""' The Legislature, no :«♦«- -t the nomination of the Cr iplioLt:-"^^'"'^"^^^^^^^^^^ '^ ^"^-- - -^-■ Diiorln^ti* ^''^^?' 'T.'^''" ^'^'^ ""''^^ this section. P .or to the passing ot the Act of 1873, that a corrupt prac ice committed by any person should avoid a can- duates election and subject him to disqualification for eight, years, if committed with his knowledge and con- 1875.] LINCOLN. 401 arily enact tluit ie is in no wny tual or.supp.is,.,] le flection, iniiv in tlio alisciKv h an intent, Wf ftect. I Mubject is cnii- for the sake oVa "u 17 ^7^' '^---e (admit- the rigid terms of the l^^^iJ^l^^^'^'-'T''^'^^' ''''''^ '^^ violation) the candidate pa o;i^^o\;%" ^f*^ ^ «o supplied, or paid for what w. , f refreshments and was, so far as sue' ac c >n T '?'' ''^' '" '"'^ *''«"''. party to the violation of ^eTf I "t ""' ' ^'^"'^'^"^-^ 0"6th section practice committed bv and with i?- *^'' 8™""^' «*" corrupt consent, is a question "Ih'wi ,",?"' '^"^^^^^'^^ -' 1 • S:?u;ir ^ '''- -- ^- ^rrr r :^ *^^^^?^^:^^::s"^'!-/---tave^^^ were drank in the tavern' c'uf Z """^^ '"^"'^'"'^ -^'■^'' tHe «Oth .sec. of the Act o^Cj:'^'ZT' '' The section is placed in n i- • • P" ^' ''keeping the poLe lr:oo7:? ^?^« '^^-^"^e heade,, thus worded: "Every hotel J'"* '^^''''^""■<' ^"^1 is spirituous or fern.ented linlr'"^ '"^' '^^'^ '"^ ^^'"^'^ fold, shall be closed du LX df '"""^^ "'^ ^-'--'iiv -the wards and mun cL i ' "^ ^Pfointed for pollin, hel^i ; and no spirituou 1 f "" '"'^"'^^ '^'^ Polls ar^ shall be sold or Uen : a V^rT' /^'^'''^ ^^ ^'^^^ such numicipality durin. the sal T f '" ''^^ ^"'"*^ '^^ of 8100 in every such else/ ^ '°''' ""''^^' ^ P^^'-ilty The law previously in forc*^ in fj u ?n the .same subject was : »"i"S clay, hour, o,. mfnute i t ■„:' r' '"^ "^«»"f' longer or shorteHn pen rf dl^ ' °f "■"■■ "'''«'«' consist of one or a nmnL r ?"' ""'' ™ "h^'lierit cse the act IZl^i'Z ^ P^'™" »*" I" «». calling by semn/hrr: ,, ofZarrj '"T"™'' in which the ordinnr.. „oir ^** ^*« *he mode hot rolls wltr;S't"el r/---J- Tl-c -Hins nary calline was ?'„""'• *'= o^'c'se of the ordi! stopM short aTco.lalrthr,^"'^'™''''™ »»' kept closed thev h^T^^ u f "■" '''™'" *<"'1J 1* a character whieh falls diritly w tht th^l ," °' W on the «.„,e day ; the second t h ^ r"" '"' °""""'- .nay te repeated aga^:! and t^" n 'S o:':' «'' »'""■ prItLtyS-yf tp f*r-.;» ■"* a c„rn,p. oecnrs "dnrinc the TI' ''.P™™!*"! such violation -onfora^i^e^L Te^rr;:: "f"' '"' 1st section of 36 Vic canT- f ^'^''on and the for ,on,e canse penaCare iL"pUZt™"'^ Y^ any v blation of it^ r...^ • • ""P°««^ oj ihe one for ^o/pollin,; ^uulCrretfe t!^^ ^^^^^"^^ practices, they must take place "drnLT!''' '''™P* ed for polling." With thf/ . ^ ^^ '^"'"^ ^PP^^n*- g. With that exception, the offences remain '^^•'^«- fA.D. iory, ordering that the n the English Act it is 'ther person shall do or 1 or work of their orrji- In Lord Mansfield's 'g his ordinary calling lout any fraction of a ntire offence, whether ion, and so whether it ^icular acts." In that :ercising his ordinary That was the mode cercised. The selling 'xercise of the ordi^ Legislature have not he tavern should bo 5d two other distinct &c. The first is of liin the principle of nee can be conimit- ■ bidding acts which 'h or to different in- e imposed the pen- keeper of the hotel, 2an incur a penalty : the day appointed is made a corrupt led such violation :or polling." The :h section and the ^ery obvious; but by the one for the daij appointed -violations corrupt 'he Ao?«rsappoint- e offences remain 1875.] LINCOLN. 409 a.s defined in the 66th section, and for the purpose of im- posing the penalty *here is no change. The Legislature, however, appear to have taken a more serious view of these offences than they did when the Act of 1868 was passed. There may have been a necessity for some greater punishment than a mere pecuniary penalty to check the undiminished practice of having taverns open on polling days, or of selling liquor or treating on those days, and hence the additional provision in the 36th Victoria" But for the word "give" I might have thought the whole .section 66 was confined to the keepers of hotels, taverns and shops. But looking at the object, viz., " keep- ing the peace and good order at elections." and the pro- hibition to give as well as to sell, I think that would be too narrow a construction ; and I am of opinion that any person who during the day appointed for polling .shall give any spirituous or fermented liquor or drink to any other person within a hotel, tavern or shop in which such liquors or drinks are ordinarily sold, in the wards or municipalities in which the polls are held, is as guilty of a violation of the .section in question as the keeper of such establishment would be who himself should give the liquor. If it was intended to limit sec. 66 to the hotel- keepers, &c., by the provision that no spirituous or fer- mented liquors or drinks shall be sold or given, it would have been much simpler to have said within his hotel, etc., instead of within the limits of such municipality! and simpler still to have said, and no keeper, etc., of any such hotel shall sell or give, etc. The peculiar form of expression tends to show that the Legislature intended to prescribe one thing, i.e., keeping the hotel, etc., closed ; and to forbid another, i.e., selling or giving liquor, and to impose a penalty on every person who neglected to obey the one, or who acted in defiance of the other. As the tavern-keeper, etc., who sells in violation of the statute commits an offence, so the purchaser is equally ;l"|;-,| 410 PROVINCIAL ELECTIOXS. [a.d guilty with the former if he .rives ih,. i; ., by hi.n to persons in the tavern ' '" P"'"^''"' That Larkin was an active agent of respon.lent is surti ciently proved, and in u,v view of the law he wl lu^^ oi a corrupt practice in treating at Dovle's The If Judge after a very elaborate c^oasiderat n of the sTZ' eTltnlfV"" ^^' '''' ''''^'''- «^« '^-^ 1-id up t eight months in consequence. At that f i.n» tif T indebted to the respoilent, J^!tt^^Z^Z m the respondent's mill book. Mr J W K,r ., account of the matter: " Mr. Stel' ill t TeXi^^ It was an act of charity to pay him what we did I two years since we paid him, whatever it was It w given as a little present on account of the afflLt on " A on the 2:3rd November, 1872, Stewart sil^cl^frcd jnusence of J. W. King as follows: "Receivi; S.S Neelon the sum of fifty-four dollars and sixty-six cnts m full ot all accounts or claims whatsoever."^ Abou a re'Lw I ^^""^"^ "^" ""^^^ consideraUon h respondent having apparently heard that Stewart or his h" TtoiTh 'f ' ""* '^'^ ■^^^^■^'"^'^' ^^«*™- *« - respondent w!5' " '"""'' ^^*"'^^-^'- ^^^^ "^^ «»»k lespondent had done her justice. After the election slu- gTe wVr ''rtrfT' '""'''^ tol^iher hXo give hei $30, and asked if that would satisfv her Credit ZnTstz '^Tf °" ^'^^^-""* agisrste'::; Ton But Zf ^'It ^"' ^" ''^'^' by respondent's direc- tion. But before this payment, and also about a week the^n^r^^^^^^^^ ''^T^ ^"'*^^^ respondent mlt a g to otewarts account, respondent said to him. t ■ ■ ,i ]875.] LINCOLN. 411 ' 1 wouUl like to have you with niu at the election." Stewart replied he could not very well be with him he- cause he, respondent, did not give what Stewart thouf,'ht were the damages due to his wife. That he told respond- ent he had not done him justice, and that respondent saiil if he had not done what was right, he was able to make it right. Respondent did not say anything about his (Stewart's) vote, but he told more than one time that he would like to have Stewart with him. Dan' j1 Stanley was sitting with Stewart at the time, and sa^ s respondent asked Stewart if he was going to do an} thing for him ; that Stewart said, " No, sir, I cannot." Respondent asked, " Why i'" Stewart said, " You did not do the fair thing when my wife's leg was broken." This is Stanley's account, and he goes on : Mr. Neelon said, " If you will see me in this cause or case, if I have not done the fair thing, I will do the fair thing." Stanley says he heard the convei'sation distinctly — he could not help hearing it particularly, and did not think there was anything \vrong in what was said at the time, and did not think from the language that Mr. Neelon was trying to buy the man's vote. And Robertson, who was standing near, heard re- spondent s&y, " Mr. Stewart, I am willing to do it, and will do it." Stewart says respondent began the conver- sation by saying, " I would like to have you with me at the election." Then Stewart expressed his dissatisfaction as to the compensation made for the injury to his wife, and respondent said if he had not made it right, he was able to make it right. And he wound up his evidence by saying, " Mr. Neelon said to me, ' Mr. Stewart, I want to do what is right. I am able to do what is right. I can do what is right.' It was not said by way of a bargain. Mr. Neelon only told me he wanted me to support him ; he did not make the payment depending on my voting for him." Stewart told his wife what had passed, and she wrote a letter to respondent, beginning, "You sent me word by my husband about voting, and what I had to say, and if you do what is right, he can use his own pleasure 41S PROVINCIAL ELECTIONS. [a.d. 1^7;,, no day state.l. Stewart says he went to thr ' ,' about dusk with the letter, and gave it o a Jn w, attends at the null. He saw King and Sister on a ' asked Mr King it he had seen the letter, and he sai 1 -erandpl^rl^r^S-:^-- e.pondent who ^ave him S30--not all in cash H bin? ' '" '*^^'^- ' ^"^^ ^* *^« """' - 'gave tt etre t^ TT '^"*^"^" ">^« *^^* '^bout'a w^t before the election, respondent sent him to see A^ ■ Justice-he hd not say respondent taould do justice • hi was not authorized to say anything of the kind mJ .Stewart told him she would wHteafetter It wasat!" own dictation th.o she wrote the letter stati g wL , claim was, and Sisterson said. " That will be juftis i r him (Stewart) o understand I would not give him am t gowi h me n the election. I ased no'such ll^u will rju're. "*';:-'^^^ ''^"^^' ' -^" ^-* C Sh ' ^^f/ i I*""* '^"'^" '^^ right, I would make it mn and afkTd •nlt^'^ "T"' "^^^^^^ ^^^ *« *'- I aid no R r*^ f'''^'^ " ^^"^^ ^^« had left there. 1 said no. He went out and made inquiry of Kin. or Siate son, and they came in with the letter, which wl found in a pigeon hole in my desk. I openedtleti: tion— hp f1r.o« r.r.i. ■ ^"""^""^ ®rrs m his representa- notWn. of Th^s 7'" V^'''' words-thathe knew nothing of this letter until after the election. He had 1875.] LINCOLN. 413 heard of Mrs. Stewart's diHsntisfaction, and before the election he .sent Sisterson to her; she told him she would write, antl his statement clearly indicates he was present when she dictated the letter ; hi.s remark, " that will bo just as well," clearly indicates that he knew of its con- tents, makes it at least highly probable tliat .she had expressed her 'Mews to him, which, Vjut for the letter, he would have communicated to respondent. Sent for the e.xpress purpose of asking Mrs. Stewart "'what was the matter with her," Sisterson must, on his return, have ^'iven .some account to respondent, and if he said what, if his present account be' true, he must have said, that she was going to send a letter, it makes it unlikely that the letter, • rhen it arrived, .should have been put away in a pigeon hole unopened. King says, in reference to letters for respondent arriving when he was not at the mill, "If he was not at home I opened them. ... He was not absent, only for meetings, and his letters always remained on his desk." Stewart swears that King told him that he had read this letter and put it on tile, and afterwards told him that respondent had read it and put it on file. If King read it, and it seems to have come to his hands upon or .soon after its arrival at the mill, I cannot as,sume that he put it in respondent's desk without mentioning it. On the whole, I deduce as a fact that respondent became aware of it before the election, and thought it as well to leave Stewart to vote without further interference, being sati.stied Mrs. Stewart would not influence hira adversely. But in any event the letter shows what impression the conversation with respondent produced at the time on Stewart, and I attach more value to that than to his sub- sequent assertion, which literally was no doubt true, that respondent did not make the payment depend on his voting for him. Stewart went to his wife, apparently immediately after parting with respondent, and tells her about it, and she writes, or rather dictates, a letter to respondent, beginning, " You sent me word by my hus- band about voting, and what I had to say, and if you do 414 '•H«)VmcfAr, ELECTIONS. fA.D >vhat is ri^rht. ho can us. his own nl . ' ' ---t doubt that, whatov::;:r"''""^ '■'•" ' '•V .-ospondont. the conversation!/ ' """" ^'•'"''^ "-' -'at.l to the oloetionarts^r';, '''"•«"•• «^-va,., ;StewartVstato„uM.tthatl! no ,,e^; •'■ r T*^'' «*"•' ^•"» like to have you with „L Jh T ^*'*^ *" ''"»• " ^ "'""M toall that ^olloweltZ *n::^T'T" '^ "'^' ^^■>'-"''' was not .li..eotly nu.tiori "'T,: 7' ''' ^ ""^^'^ '"'^ vot„ and th. subsequent iettelntS T ^"""'^'"^ ^^'"^"^ ^ in tl,is conchrsion ^ '^''^""''"^ «""«"" i.i^ or valuable consideration"^'.!, t St"'"; r*' ''' ""^"^•' to vote for respondent at to,.: I / '"'^""' ''"" fore agree in the jud-nnen tthr f i' "' '"^' ^ *'^''''- reason of this corrupt nrlnh ^' '''^'"«" '■" ^'^i'l ^v ent hin.elf. as wellt ^ asZ^T' '' ''' '''^'^'■ committed by James S ChT . I , ''''" ''^"'"P* Practices Ha,an. and ;the.:hifaSr' ""'''"' ^^^-^''' %^1. Before concludin.r, j ,1,.;,.. x„ ,„ . to the proceedings aTul I^ Xh^ ''"T^'^" "^ occurr,.d on the Sunday uilt bet ^^^'^^ *" ^>'^^" -ornin,of thedayof .f.X^'^*'^''^'' - ^ the eaHv ant^r^-:str:r"-'^-- especially in reference to such ^01^1 '""^""'^ ^PPo^-ter. except as a last resort, mast una'f Jj^^^^^ f ^"P^e-I •suspicion, and cannot be accepted w.H^ . ^^"'^"^ ^'^''' this the more if among tC ™ ^ ''"* ■^'7*'"y- ^"^^ who for years have been Zl .T '^ *'' ^"""^ -^^'"-^ ployed an.l trusted by him "n h "'' ^'^ ^^^ ^"•^^«'^'- -"■ them confidential and of T'' '"'"*'«"^^' «-- of rence-the cand'da'e to l '"' ' ^^"^'^^ '^'"'^ «^«"'- ance keepin. aloof Wtr^ "?"""^*^' '° '^'^ ^PP^^" avoidingL.y\p;:Lxti;r t^^^^^^ his .^u remaining ignorant of eveTythit wV k^' "'''' '""^ '^"'^ come known to the most oTcJ ^ „ w"^^'' "^^ '^- *twy ooseiver— Ignorant, in "IONS. r. >l<'Hsuro nhout it." | lit' pn.'ciHt' w()i-,|.s u.s,,i ^een l.i,,, and St.nvait vnrfH vote, and that ^aid to l.ini. " I wouM t'on," i.M th„ kov.„ot„ >od it, though hi.svot,. respondent e.\p,.ct,.,| J Kuardodly veiled ; aynient confirm „„. this to havo been an «pondent, of money wart to induce him lection, and I there election i,s void by ed by the respond. ir corrupt practices t McMaugh, Ffiuri, an observation as »e proved to liaw or in the early is entirely ignor- Balou.s supporters, '•e rarely adopted be regarded witli it .scrutiny. And are found some ^ hi.s service, em- ilations, some of aps daily occur- y, to all appear- i of his friends, ir acts, and thas might not be- r— ignorant, in 1875.] LINCOLN. 415 tact, because he will not use the uiean.s of int'oniiation rthich surriKind him. SiK-h ignorance bring.s to mind the old maxim, /f/norcni- tla jiirin quod (/uist/ue trndur scire ncminnn crctimt, and iiiake.s Mr. Best's comment on the maxim more pertinent : ■ If tliose (miy should be amenable to the laws who could U' proved ac(|uaintt'd with them . . . persons would naturally avoid ae(iuiring a knowledge which carried such dangerous conseijuences with it." • And so the wilful avoidance of a knowledire also frau"°«l c« There is nothing in'S!^ C To \he"'?, °' '"■'«- not consistent with the respondel'stn^tcT '"''"" '" -»%ht-Csrr::iXdfc:,r^*-"« th.tet^:r;r!:ru2°:\r'^™'"---» when a rule is moved for J . , P''"'*'''" ^^ J»Jses on the ground that hfve^dll fs? ''T'''^' ^' ^ i"V Judges do not consider Jwf , =*'"'*^ '^^'^^"«'^- Th arrived at had they been nl/""'^" "^^>^ ^^^^'^^ ^^^ve jury, but whether LreTs tm ? "" P^^^^^" «^ ^^e the verdict, and whe hlr , e !r. '^"^" *^ ^™' with it. Here the lea ned Jul f '"^ "^"^^^ '' '^''^^^^^ clence adverselv to the rL„on^ >' ?""^ "P^'^ ">^ -- -me on a que,;tion of flett t u^ ' '""^^ "^^ P^ his, when he had the advantL .? ^ ''P'''^^" ^g^i"«t apart from the deferen e ttfhil T> *^*^ "^*"--' of his learning and experience *' '^ ''"^ *« ^ '^'^^ Patterson J A Th* • of Mr. Justic; Gvvynne wh-r T'^ ^'''" *'^^ ^^^^'^i^" disqualifies the candSet .^ T""' '^' '^'^'^'^ -^' by him. ''^*' *"^ ««'-"^Pt practices committed The evidence on one of fho „i a colored man named Stevvlrf '''^''■. '^''•' *^"* «^ ^ribin,. tain the finding, and I se To 'a^ ^t 'f '''''' '^ «"^- V- of it from that taken b;:he1etrrd;e.'^"^^^" 187o.] LINCOLN. 417 The facts stated in evidence were, that Stewart's wife had her leg broken about two years before the election by Mr. Neelon's team, which had run away, and Mr. Neelon had paid her or her husband Soo as compensation, partly by cancelling an account and partly by cash. It does not appear that after that settlement the Stewarts had had any open account with Mr. Neelon, or had been obtaining goods on credit, until January, 1875. The Stewarts were dissatisfied with the settlement, but nothing was done to remove their dissatisfaction until the approach of the election now in question. This election was on the 18th January, 1875. When the municipal election for the township of Grantham was being held, in the beginning of the same month, Mr. Neelon spoke to Stewart in a school-house where a number of people were, and asked for his support, which Stewart declined to promise, saying that Mr. Neelon had not done the fair thing when his wife's leg was broken, and Mr. Neelon gave him to understand that he was willing to " do the fair thing." Mr. Neelon himself denies that he made any promise to Stewart, although he says that Stewart had put forward his grievance as a reason for not supporting him, both on the occasion in the school-house and on another occasion shortly before 'ihat, when Mr. Neelon had been canvassing him for his vote. After going home from the school- house, Stewart appears to have told his wife of the con- veimtion with Mr. Neelon, and some Httle time afterwards she wrote, or dictated to her daughter, a letter to Mr. Neelon, commencing thus: "Mr. Neelon, you sent me word by my husband about voting, and what I had to say, and if you do what is right, he can use his pleasure about it," and ending by asking $100 more. Mr. Neelon had asked a Mr. Sisterson, who was his salesman at the mill, and apparently a confidential agent in the election contest, to go to Mrs. Stewart to see "what was the matter with her," and Mr. Sisterson was at her house when this letter was being written, and was told of it by Mrs. Stewart. The letter was promptly sent by Stewart, 418 PROVINCIAL ELECTIONS. [a.d. and delivered to some one ab Mr. Neelon's mill or office Mr. Neelon says the contents of it did not come to his knowledge till after the election. There is quite room on the evidence for a different inference, but the matter is not very important. The letter shows, at all events the terms on which the Stewarts understood the negotiation to be proceeding. Following Sisterson's visit and tlie sending of the letter, the facts next in order of time are .shown by entries in Mr. Neelon's books, where Stewart IS charged, under date 13th Jan., U.U for flour &c and on the 16th Jan., ."JIM?. The election was on' the 18th January. On 10th February Stewart is charged with flour, &c., to the amount of $3.51, making in all $19 1-^ Afterwards, Mr. Neelon himself settled with Stewart allowing him $30 additional compensation in respect of the accident, which he paid by giving him in cash the difference between the $19.12 and the $30. The learned Judge having been satisfied, upon evidence of this character, that Mr. Neelon had directly or indi- rectly, by himself or by some other person, given, offered or promised money or valuable consideration to Stewart in order to induce him to vote, it is impossible for us to say that he ought to have come to any other conclusion. This disposes of the appeal without the nece,ssitv of ihscussing the other matters covered bv the very careful and elaborate judgment of the learned Judge. One of these subjects, viz., the construction of sectio^k 66 of the Act of 1S66, and the effect of the Act of 1873, when that section has been violated with the knowledge and consent of the candidate, we have already had occasion to notice in the judgment of this Court in the North V/entivorth case {ante p. 343). And we have further to construe section T.C in the South Ontario case (post p. 420), in which judgment IS now to be delivered. ° With respect to the charge founded on what is spoken of as the "Sunday raid," I shall merely say that lam not prepared to assent to the application to that case of 1875.] LINCOLN. 419 on, given, offered, the principle on which the London case (a) was decided, or to hold that on that principle alone the candidate is to be fixed with knowledge of the bribery committed by his agents, however gross and deliberate that bribery may have been, and however strong may be the saspicion created in our minds that the candidate can hardly have been quite ignorant of what was being done on his behalf. I entirely assent to the distinction which was clearly pointed out by Mr. Robinson in the very able argument which he addressed to us, between the case of a city where, within a comparatively small area and for the space of two or three weeks, bribery had been going on so extensive and so i' .^rant as to be appropriately described as per- V , the atmosphere; where not to ascribe knowledge . . .■ the candidate in whose interest it was committed, and who was on the spot, would be to forego experience and give no weight to probabilities so strong as to be almost irresistible ; and where, in the graphic language of the same learned Judge whose Judgment is now on review, one could "as readily believe it possible for the respond- ent to have been immersed in the lake and to be taken out dry, as that the acts of bribery which the evidence discloses to have been committed on his behalf, almost under his eyes, in his daily path, with means of corrup- tion proceeding from his own headquarters and from the hands of his confidential agents there, could have been committed otherwise than with his knowledge and con- sent," and the present case, where what was done was done only a few hours before the election, and though initiated in the town where iihe candidate lived and by agents who were in his confidence, was carried out at a place several miles away, and amongst the voters in one locality only of a county constituency. I agree that the appeal should be dismissed with costs. Moss, J. A., concurred. j^ppeal dismissed with costs. (9 Journal Legis. Ascem., 1.875-6, p. 199). (o) Keported Uominiun Elections, 1874, pout. ' "4 H^. :■ 420 PROVINCIAL ELECTIONS. [a.d. SOUTH ONTARIO. Before Mr. Justice Wilson. VVhitbv, IM to mh May, 1875. Before the Court of Appeal TcRoxTO, ,M D.c,-ml.r, 1S75, ,,nd January, 1876 Abram Farwell, Petitioner, v. Nicholas W. Browx, Respondent. do all they could to secure his election 1 ^ ^focation were to in O to canvass the tovn, and a com n^Vn co'nm'ttee was appointed for by th« association, C;?s'irsrwerer'"''^''T«^ " vassmg books, and memberwero annofntfrl T""""*^ ""^ "sed as uan- town, and reports were madpfn +^t^^ • *" '"anvass parts of tlie canvassing ^fhe respondent, who residLd'afw "'A' ''''''' "' *•>« at Cfto appoK^ru^ L* rZrK^^ such con.mittee t.cular matter and for th^t occasion ojXIP^A' ''«""'« for that pa,- h.s general agents for all the ^^ '^l/CelSor '''''' "'^■" ^^ >ng of the respondent! Cnds m W T ^"".''.y ''"""'^^l ^ '"'^et. present, anc' at which arraZments ^e'r. „^^''\"'\ ''"^P^^'^^"' ^'^ ^St'th" V'°*"' '*"' «--'"" "b^uTthe So.^"* •^^"^"^^"'« -^ ^ .y^S;^}^^^-iS:'of -^'f S --- ---^ vassedCSrpLtnHndTaS^^^^^^ ««»• -d can- expected him to vote and work for him "° '•°"^* ""^ respondent ^ by the respondent'^^^^ereVeX bX« gtts ""«"^^'' '''"' '^"^l^'' f n; ~rdtrhl,*tnef S S l'""- ''''■ ^<^^P-^-''« '^'- twice. B. was also appointed in wr ffn„ 1 ^""m'tt^e-rooms once or scrutineer for him on tL polling dav an^H ? * • ° "-"^Poudent to act as wluskey to the Deputy ReturnMffi.t^^ **1V""« R°"'"8 hours gave acting in bis former capacfty as coi^Zr"*" '*'''"'''»^«''' ^^ ■«" respondent, and that his appointinlt ."!•""*" "^ "g^nt of the him to do an act of treatiE ^ o Lk \",'"*'"««'- ^id not empower for it. ""« ^° ^ to make the respondent answerable 1875.] SOUTH ONTARIO. 421 One C a member of such committee at W., partook of whiskey in the kitchen of a tavern at W. during polling hours, and also, when bring- mg a voter from the town of O. to the town of W. (within tiie sanTe electoral division) to vote at W., treated himself and the voter in O HM {Draper, C. J. A., dissenliente), that C. was not guilty of corruDt practices within s. 66 of the Election Law of 1868. ^'^A,^y *^^9'*"'•'• o^ Appeal {Draper. C. J. A., dmentienle), that s. 6(5 of the Election Law of 1868 (32 Vic, c. 21), as amended by 36 Vic. c :- *PP'"^s only to shop, hotel and tavern keepers, who alone are liable to the penalties for keeping open the tavern, etc., and for aelliuK or giving spmtuous liquors during the prohibited hours. Held, by the Court of Appeal (reversing Wilson, J.), that the prohibition 111 such section (66) as to opening taverns and giving or sellinc liquor m the municipalities in which the polls are held, ''^applies to all the niumcipaiities within the constituency, irrespective of the place where the vote is given or to be given. r cic The respondent, on polling day and during polling hours, went to a tavern at W. and partook therein of spirituous or fermented liquor for which he did not then pay. ^ Held,perWihon,3., that he did not "sell or give " spirituous liquors within the meaning of s. 6fi of the Election Law of 1868. The petitioner was not allowed to urge before the Court of Aopeal a charge of corrupt practices against the respondent personally,' which had not been specified in the particulars, or adjudicated upon at the trial of the petition. The petition contained the usual charges of corrupt practices. Mr. Bethune and Mr. A. G. McMillan for petitioner. Mr. ffpxtor Cameron, Q.C., and Mr. Billings for respondent. The evidence affecting the election is set out in the judgment. WiLSOX, J.— The petitioner contends ho has proved cor- rupt practices to have been committed by W. H. Thomas and F. E. Gibbs, who, he says, were the general author- ized agents of the respondent, and that he has proved coi rupt practices to have been committed by W. H. Billings and Francis Clark, who, he says, were the general agents of the respondeat, but if not, he says they were his agents for the purpose of charging him with treating, and that will be sufficient for the petitioner's case. He charges also that the respondent having had liquor sold or given to himself during the polling hours at Ray's tavern, in the town of Whitby, was personally guilty of 422 PROVINCIAL ELECTIONS. [a.d. It must be considered— Firstly : Whether Mr. Tliomas and Mr n\hh. or ei hP. f .? ^"""'^^ *^'"*'^ "'• *S^"*' ^>^«ther they we,. or eithe of them was, the agents or agent of the resnon J j-iuiuiy. it ihomas were the awnf nf fi. respondent, has he been euiltv of . !^ ' Fourthlv Tfn-iK "''^",S""*y oi corrupt practices' * ourthlj If Gibbs were also an agent, has he been .^uiltv of corrupt practices? Fifthly: If Billings were an a" has he been guilty of corrupt practices ? L.hly l" ct ' were an agent, has he 'jeen iniilH- ^f /' ^ Seventhlv Tf TK ^ ^ °^ ''"''^"P*^ practices ? seventhly. If Thoiiias were an agen^ has he been -uiltv of corrupt practices by having had mv ,n f iT- f ' brandy by G. Hodson;t the "ma' e o Col, n ^" ' ^'T "' hours? Eighthly Whether ,"' ''^ ^^""^^^ ifeiituiy. wnether the respondent was cniiX-Trnf corrupt practices by having had sold or given to^m Ray s tavern, by the person attending the b« ,- ih during polling hours ? ^ ^^' ^^''^' ^'^l""'' .on i„. chooaing delegate, and was chosen one 071, ," hfi TdL? r'^ "^ 0™-™«ve A,s„eial„ tne i,outh Elding. I am a member of the Msociation The meeting was at Brooklin. The delegates rXed to an adjoining room and chose Mr. Brown bv ballotRl accepted the nomination two or three 4.™ after u understood these delegates were tl dfa' that tZ could to secure Mr. Brown's election Th ^ ingat the eommittee..om -forwallrZX Browns acceptance; don't know who engagedTr pS ;tions. f,^ section of the Election -nd Mr. Gibbs were, or was the general agents ily : Whether Mr. Bil- ^f them, and which of 3nt of the respondent, lit, whether they were, agent of the respond- practices charged are vere the agent of the f corrupt practices ! nt, has he been guilty illings were an agent, es? Sixthly: If Clark 3f corrupt practices ? u. has he been guilty iv.-n tohimaglassJf ' Columbus in pollinrr londent was guilty of 1 or given to him at : the bar there, licjuor h is whether Thomas the purpose of tlie on the evidence, and was at the conven- shosen one of them, •tive Association for of the association, ielegates retired to ^n by ballot. Brown days after. It was do all that they There was a meet- ' a few days after J engaged or paid 1875.] SOUTH ONTARIO. 423 for the room. The committee met there nearly every evening until the election was over. It was arranged that certain members of the committee were to canvass certain parts of the town. I was to canvass generally. There were voters' lists got and put into the form of books for canvassing; think the Conservative Association paid for the use of the room. The scrutineers were appointed by the committee. I suppose blank appointments, signed by Mr. Brown, were got and filled up by the committee. I did what I could in the riding for Mr. Brown. I had not much else to do at the time, and I went into this elec- tion to win. I met Brown at Oshawa during the canvass. He was not at our meetings. No arrangement that he was not to attend I'rom anything that passed between us, I do not know he knew I was canvassing for him ; I sup- pose he knew I was doing all I could for him. There were reports TMide to committees of the result of the canvass- ing. On nomination day, after the nomination was over, a meeting of Brown's friends was held in the room over the Chronicle office in the town of Whitby. Brown came to it ; it was to arrange about canvassing and about getting out voters and generally about the election. I was there only a few minutes There were volunteer teams from a number of people for the election, and among them from myself. I drove one Hoey as far as Cedarville to vote, drove him in the team I had hired to go to Port Perry in the North Riding to vote ; did not hire the team to take him, but to go to Port Perry I had $50 bet on the result of the election." That is the whole of the evidence as to acts on which the agency for Brown is founded and from which it is to be inferred, excepting the acts of treating, which are the corrupt practices to be connected with the alleged agency. Do these acts establish the agency ? The Brooklin meeting was called by the Conservative Association before there was any candidate. The meeting of the delegates was also before there was a candidate. Brown's first act was two or three days after his nomination by the delegates. 424 PROVINCIAL ELECTIONS. ";ay be an active member oo tT^ T''""^"'''' '^^ '' f they could for Brow„ Br '''^"'^^ ^^''^ *« ''o Thomas resided i„ oZl re^ "tt^" ^'^^^'^^^ Thomas speaks of were held in nu ''°""'"**«« 'meetings '•oom was paid tor by tit Con,? ^ ^^' ''«•"""■**-- •-y be pr^umed thft ^ that 1' 1" ^"^"^*'«"- ^^ of the hiring of the comm t ef "' "^ '"^ '^' *i">e by the Cons^rvativeTsrlM ''7" '^^^^"'^ ^«« <'o„e Jf "tions of the eLtr rrlTS^f-^^-^-yeon- tative on the side of that horl J^ ? '"''^ * represen- Pjace after that which xnustle "IT^' '' '' ^^'^ *«'>k nector identify Bro:;/:Lt:sy?^ "^^^^ *« -" the previous conduct and position o "JJ^'""^'' ^^^hough wholly lost ight of. What hlnn , . "''' "^"^^ "«t ^'e room in Osha^va was opentd^^^^^^ •"efc almost every ntht Z T *^"'^ ^'^^ ««'»""ttee provided forcanvi:;;ttherwnTh'^ ^"^^ They^ generally; he wasnot restricted to !' ''"' *° ^^"^'^'^^ -^ it. Voters' lists were" bv^r^^''"'"^"'-^^^'^'^^"" v-!"g. Thomas met B o wn afosha""f '" *""• ""■ vassing. Thomas supposes Bnl t^ ''"""^ ^^^^ «a»- doing all he could f" r wlT b" '" ''' ^^^'^'"^■^) -^^« -nts of scrutineers. anTdeWed r^' '^^"' ^^^«^"^- the committee in Oshawa to fillTp IZH" T' ^^^ '' the .aeeting held after the nom naLn o ^^•^'' '"■ ^^ at wJ,ic.h Brown was present i.w "" "«""»^tion ng reasonH : The original necti^^ t ?'"' *^'' '^^ *»"-- -"^d by theConseitativel S,:^'--^'^"'^'^^^^^^^ the tnne a member of it T] ! , > "'''' '"^' "' which Thomas was one L ! , '^'^''''^ «« chosen of 'Jidate. The connnittr;orrot ^'■"^" ^'^ ^''-' ^- «ame association. How 7L ""^^ ^'"'^'^ h the n. Thomas being at gates so chosen of irown as their tan- 'a was hired by the ttie was appointed berofit. Brown ere is no evidence 'Uprising it. That ^g> and authorized »e election matters f -Brown can be jmmittee and by ■inst Brown. But tee? He did not «v who composed lority to appoint h shows that he the Stalcyhridyc aks of a"coni- ut consisting of of the district to be the head er ;" and again, his, when I am '-de volunteers, y the member in a business- 5ing sober and 1875.] .SOUTH ONTARIO. 427 rospectable tnen in whom th.y had confidence to be the head of their own -lopartnient, and acting together a iiics-senger who is sent i.y one of them is not so directly connected with the candidate or any of his recognized agents as to make him responsible for his misconduct in otf.Tmg a bribe." So also in the Wi'^tmimfcr msc (1 O'M. & H, 91), Martin, B, .said : . was proved that .me Davis was a person who canvas,ied for a society called ' The Working-man's (J.mservativr Association.' This society was as.sumed to )>e formed of working-men, but next to nothmg was subscribed to it by working-men ; all the rest of the funds of the society came from a subscription of itiOfrom the respondent himself (he withdrew from the society, however, on liecoming a candidate), two sub- scriptions from his partner, and various other sums from persons who subscribed, expecting this money to be ex- pended m promoting their political view,s. The funds ot the society were spent in canvassing persons to vote for the respondent, but the evidence was that it was an inde- pendent agency, and that this body was acting on its own behalf." And on this statement of facts, the Judge .said " he should not hold Davis to be an agent." r am not prepared, upon the evidence and upon the state- ment of the law to which I have referred, to say that it was Brown's committee appointed by him, or adopted by hmi (excepting as to the scrutineers), or authorized by him to canvass for or to manage the election contest gene- rally for him. I have already said that the authority by Brown to this committee to name scrutineers for him was, in my opinion, a special authority to act in that particular matter and for that occasion only, and that it cannot be extended to the adoption by him of the committee as his general agents for all purposes. If the committee were not of Brown's nomination or . acloption--were not, in fact, his general agents deriving their authority from him a« all agents must do, then it will be very difficult to make out that Thomas was an agent of Brown. He had nothing personally to do with 'Yv 418 PROVINCIAL ELECTIONS. [a.d. statement „f Tho.nas shows rather H,„f T ^'" tear and had „o author,-, lo B I'^J^; r«'-- acting under any authority th«f 1. ^" ''"* .ir y/., 70), where Blackburn, J said- "TK effect of that would he to sav thnf v„i ? ' ''' volunteers who were actin?«/^ TT' ^^''' ^^''^ ■late «. hi, agent .i„, -J a!: v^ ^ ' Tb, ' "r* to Thomas for anything he suZseTTh7 ™"'' ''"^"' The n.ost that can be Ld 7 hat if Br T, f""^"' Thomas was doing all he could or Mm h Z "1 "T to it or repudiate his acts. But a candidate •'"' interference does not necessar it bt^L Vf'' "'^"- ioi mm. He said that nothino- n+' +;, i • i was mentioned; that all he said w«s fw\ ^""^ Brown did know that he\S \ ^* ^^ ''^PP'^^^*^ Know that he (Thomas) was doing all he could ^^w 1875.] SOUTH ONTAHIO. 429 for hiin. After much liesitation, and I iiiiist Hay to a con- siilerablo extent against my own primary impression, I tliink the agency of Thomas has not been established as against the respondent. Thomas was not the direct re- presentative of Brown. He was the agent of and for the coinmittee, and if the agency of tlio committee had iKit'n provt>d, the agencv >j '^homas would have been proved too. But I am not saiL^Sed the committee are shown to have been tht g. Meral u. t,horized agents of the respondent. As to Mr. Gibb.s, the r .l.r,Oo an to him is: "I waa working in Brown's interesu in Oshawa. The committee there was divided into wards. I was interested in the Son's Hall ward particularly, but (in answer to the words of Mr Bethune's question) I had a roving connni.ssion over the rest of the town. We met at the connnittee- rooias. Oshawa was divided into sections ; each section had a committee of its own. I canvassed where I thouglit it would be of use. 1 had a voters' list. We rai.sed no fund to pay expen.se.s. I did not contribute one dollar. No arrangement that I am aware of to pay expenses. I was in Oslmwa on polling day. There were some public iiie^'tings held in Oshawa. Brown was there. I am not aware of Brown's convassing a single man in Oshawa. No conversation with him about our canvassing. I said to Brown I had no doubt Oshawa would do its duty again. I have not the least doubt tliat Brown expected me to vote and to work for him too. 1 spent no money at the elec- tion but my own personal expenses, and they were very trifling, a glass of beer and a cigar once in a while; I hired no teams." Upon ihat evidence I cannot say there is agency established. There is the fact that Gibbs was one of the committee and was canvassing generally, but not by authority from Brown unless through the committee ; but there is still the same lack of evidence to prove that the committee was appointed by Brown, although it was unquestionably acting for him and in his interest. Tliere is also the same lack of evidence that Brown personally 480 PROVINCIAL ELECTIONS. [a.d. adopted or authorized Gibbs'inrHv,M„oi . -r and Gibbs were not, according to th^ «, i , '"'""^ as to Mr. Billings is- " T f. i! . ^^"^ ''^"^^ncT but that one in the place iT.l' <^ommittee the polls here for Brown Tl. ^ ««™t»n«er at one of thatday. I ook it for L I ? "'' ^^^^'^^^^ ^* '^^ H' in. Officer -t:^ t\X ri-t\t^^^^^^^ no one else." ""^® ' S^^ve it to I think on this evidence that Mr BilHno-« , •, actmg ,n a special character as scr^tLfr ? ' ! a special written authoritv from the . ""''" such person the arent nf Ik ] f ' """ """ "•"''• H 188^ ih^ „ • X person— ^i^^M mse (1 Q'M & s on Mr Billing' ., .1, "'"'""' '"' ■'• Upon that occa- duty "ndle hS n„ „"" '' ""l """"'' '" «>»* especial (1 O'M & H. 194). The facf ,K„\ '^ ' *''>"' «" Deputy Reteming otrLa't^ ^^ "'"'*'''' '" ''' --he.ianotai„,„etorac:i;'::rs,:::: 1875.] SOUTH ONTARIO. 431 or as a general agent of the respondent, if he can be said even to have been one. I am of opinion Mr. Billings was not an agent of Brown's who could bind him for the act of treating, if it be one. As to Clark's alleged agency. He said : " I attended Brown's committee meetings at the last election. They were held over the Chronicle office. I attended nuc over three times ; went there to help on Brown's election. I would like to see Brown elected. I don't remember asking any one to vote for Brown in the Orange lodge, or out of it. I went on the polling day for Jordan, a voter, to vote for Brown. I got him and brought him to vote. I was at Bandell's tavern that day in the kitchen. I took a drink there between 9 a.m. and 5 p.m. in Whitby. I had a glass at Oshawa too. I treated myself there and Jordan also. I paid for it; think it was whiskey we had. Jordan worked in Oshawa but lived in Whitbv, and had a vote here. Fothergill volunteered to drive me there for Jordan, and we brought him up. There was no par- ticular part of the town given to me to canvass. I think I saw Brown once at the committee meeting. I know of no other body organized for Brown's election but this committee. Jordan went into the polling place, and I suppose he voted. He does not belong to my lodge ; he is a Roman Catholic." I think the Whitby committee is shown to have been Brown's committee, at which he attended several times. The members were to canvass general! v for him, and Mr. Billings did do some of it. Clark was one of the committee, and he was authorized to canvass, and was not limited as to any particular part of the town to work in. With such authority he went to Oshawa for Jordan, a voter, and brought him up to Whitby to vote for Brown, and it is believed Jordan did vote, as he went into the poll for that purpose. While Clark had Jordan in his company at Oshawa, and before they left it for Whitby, where Jordan was to vote, he treated him- self and Jordan to a glass of whiskey each, and he paid for it. 432 PROVINCIAL ELECTIONS. r HmJITTiw [a.d. were not the agents ..f ih. T' ^^' *"^ ^JlJin-'s against them. ^^^^ ^^^ *he acts prove,! C.a*-atlS:g:"SeHf '^^ ^'-^ '~«^" ''V dispose of. After mS ^ «»P<>n"■ limits of the municipalitv w^ \ "^^^ '^^^'^"^ ^he Whitby washeld. iThbktIatLf 'l-^' *'^ *«^^''-*' of the section which it wa,!„ ''"^'"^ '^^ ^^^^^ P^« The whole section wX^.T ''f ?^ '' ''' -- closed during the dav ann^rriV l . '^ ^'*'^' '^^- «^^" ''^^ or .unicipaHties in whL^C^^^^^^^^^^ ^^'"^ uous or fermented liquors or drink. 1 ^fu' '^ "^ "P"''^" to any person within LlmTts OK ""' '^"^^ «^-giv'en the said period, unde"plX;f;rof>^"*^''""""^ case." If a poll i.s held in ? •! '^^'^ '° every such into which the cit - i,s dfvided ;:Xr r, °' '^'^ ^^^^^ hotels, &c., in such wardT,wH "I I '*"'"*' ^'''^'''''' '^^ closed on the day o poll " 'tL ''" '^ ""''' "^"'^^ ^^ the other, but no liquor to be f u"" '•""* ^^ «^««-l i" the whole of the cilythL is tt "' f^ *'"'^"»^''"^ n«i» fk . . ing and treating at su-^ h!^ ^T"'"'' ^^^''''' ^'""k- -ust be ^r el^toj' ;;.,:^:: ''!-t'^^->>etterit eerned; but it cannot be m2 so i ^7,"" P'^'''^^"'^ ^-o"- '•■^ it now reads and as it i? ?•? '''"'^" "'^ "»4"aliHc.,i «o far as thiroast '"' '' '""'* ^^'^ '='^"«*'-"-l. yhoieofit^to::j,;::-xr^;rf?^*'^^ ''oubts, fron. which I cann,>. !" j am vet r '" ^""'^^ I'espect to the ao-encv of Th ^^/ '"^^'^^ed, with with respect tollxGibbfit "T .""u ^^''^' ^^^^-^'^ whether he was an a.fn' :7Tt1 '' '"^ '"'^"'-^ treating hiu.self wasCain t t^'/T '^^ T' ^'""^ "^^'^ •stated, and I have vervCT. i f '. "' ^ ^"^^ ^'^'^"'^''^ the two eommerciallX :ttn:?^*'"f^^''^^^*^^ and not voters can be nn Tf '"^^^ngers in the division tion just constC; ; r ^^^'^ '' ^'^ '''' - given of the kind of houtw^^^r^ T,^^ ^« ^^'^^^'"ce f-gers; there wasrhjgtwi^^^^ termented liquor- and T .1. , J T ''^' ■'?"''*"«"« or -h a defect'of ^iVevL if t 'tT' ^^ '^"^P'^^' ful Examination under ihrrclCc '^ ^'^"^ '^ ' of the 66th s;ction f he we"e an" ^""f >" *« ^^e effect '-t I think he was not XulTw; ^ ^' ^^^"^^^"^^ committee, but the comr.ittee were „ tT'^''* «*" ''' Brown. Upon that point an,^ i ''"'''*" ^^ Clark (who I find was'l" 'X:' '^ "^ ^^-t of mg Jordan outside the mun ^.espondent) treat- voted, I entertain, as I h ^ aJ "*" '^ /'' "^^""^ '^'^^•^'^» able degree of doubt and ^ h ? ^* ' ^ ''^'■^' consider- ii. . of course be very glad if 1875.] SOUTH ONTARIO, 437 the petitioner will carry the matter, by way of review to the Court appointed to reconsider such questions for their more deliberate judgment. The costs of this part of the case must abide the event of the trial. I need not say that I shall be obliged to report to the Speaker, if I have to report at all, that the evidence shows there has been a common and notorious violation of the Act by the keeping open of inns, and taverns, and' other places where spirituous liquors are usually sold and selling to all persons during the prohibited hours of the election day, and during nearly the whole of that day and that some measures .should be taken against all those who have .so shamefully defied the law. I feel obli ^10 '•ROVINCIAL ELECTIO.VS. fA.D. The facts sfoin to he as follows • n r , voter, whoso .o.side„ee was in wliH '^'''"" "'^^ '^ v;.ter in that n.„ieipali:;;%7J /^^^^^^ election he »•»., • -i,;.;, ■ "l; , '™""S Hie tiiiu! of tl«. «eP"mt. .,;„,.i<,„al,Je, ''*»"»-l»"ll l.laee». t|,„u,.|, of .So„t,, OnSo CI. k''lC '"" "■"*"'™' "'vi* ™fflei..,,t,yp„,„a,wc,:t'; ::*7 "pr^ "■ '■» not to he a violation of the (ilith 1 " i '" ""» '"'W m which the po„ (■„,. a„ j„;'' ; -;;""■■ "n|ni,.ip„,it, >Hie»tion «-a, a»ke,l a, to tl, I 1 ^ ""» ''»'''• ^<> Pl.ce-n„ do„l,t ™," !'":""»', '!"■• '-«»«">,' took W.-,r,, appointed forpo^L . V'" '"'"' "'«''" ""' 1>- . "o-Mering thft wta^' '" "T ""'■ '° "' practice, which, it com.nii, ,]7 ""'"W " «<>'™l ' actual knowledgo all 1 f","; '*'™' "'"■™' «'« avoid the ,..l„cti„„, it cannoTu ' "'"'^''''"''' »""H 'rial; and a, the ewCc" , l" 1"^ °™''°"l be prevented by the Act, as if the tavern in which the liquor was given to them as in municipality B. Further; I see nothing in sec.Gll which makes the fact that the person to whom liciuor is given is or is not a voter an element in the matter prolubited, that is, selling or giving to any person within the limits of such nmnici^ pality. There is no necessity that a man should be a voter to make selling or giving li.juor to him on the polhng day an oftence subject to penalty. In Jordan's -iise. if he had not been a votei', giving licjuor to him in a tavrn in Oshawa would have been a violation of the Inw assuming as I do that tiie day in question was appointed to' holding the polls in the municipality in which the n stood. 1 .ink we surmount most of the difficulties suggested by holding that section G6 is confined to the re.mlation of hotels, taverns and .hops in which liquors are'ordinarily sold. On the day appointed for polling they must be kept closed under a penalty. No liquor must be - ' 1 or given to any per.ou in any such hotel, &c., on the poUin-r day The words, "within the limits of such municipalif v" may perhaps be redundant, but the word sn,k confines the construction to the municipalities mentioned in the former part of the section, which may, I think, be properly treated as part of the description of the hotels, &c., which are to be kept closed, namely, hotels, A:c., situate in "the mu- nicipalities in which the polls are held." Adopting this conclu.sion, I am of opinion that Clark was an agent o^' the respondent, and did, in violation of section 66, give spuituous liquors to one Jordan in a tavern in Oshawa, w hich was a municipality in which a ■"^I'i "\ 442 PROVINcrAL ELECTIONS. [a. a fore, voi,, and ,,,„t,l,| L" ^ ^ .iil ' "" "'"=''"" ""» ««=.- dofL:rra„;;:;'l-«»" ;;« f *« '^"' -^ cases: "ojecteu to a pwialty in ,|,,^,, 1. Not keeping the l,„l.,|, fe., „|„,„| 4: '"'"«'■■'""'"""'«-„,<,„., .,„,n, the HIin.. „^J«i™«,i.,„„H„ his tavern, *e.,.,„™,«,„p„„i,. The whole three Rro »,„ i -ittocl during thfhoTrs "tir^r ^"^^'"'^ ^^ -- «'e Logi,slat,u-e will remove fT "•■ P""'"'- ^ '-!'•' ,^^^^^ remove the doubts by a clear .statl BURTON, J A Tho fK U or some of them' the Lencv j^'f n-T"'"'"^' ''^^^ '» ''" ^'iving li,uor i„ a tavefnbv In r''"'' "'^ ^'^^''^^^ '^^ appointed for polling all invol'"?. "^^''"'^ ^'^'^ '-"- placing a constructio^n upl.hr ' "'^'''^"''^ '^^^ "-^^ ^•ebated 6Gth section of tl F ! "f "^' "** '^^^ '""^f" Wf. bfl,l ^ • Election Law of 18G8 >ve had occasion to consi.J^.- th- .- North Wentworth (ante n m, *^'\f «*'«» before in the p. 3(32), and thei hell ' ttat 2 t'' ^"'^ ^'^^^ ^'"^'^ violation of the section b/ he hot 1 ?"" '"" ^ ^^^'^^ -de a corrupt practice bV the Aetoftr."'"' ^"^ corrupt practice havincr K. ^*^^'^' *^"t' tJ'at ledge anS consent fTh! canJidlr '"''I "^"' *^« ^"- no alterative but to deXt 1 '1 T'' ''"' *^^^^ ^^-'^ candidates disqualified But if f '"" ^"'^ ^"^ ^'^^ of the petitioner thl^hft^^ ^^.t^t.- ^^^ P^^ general in its terms, and is not Tk . ' '''""" ''^ parties aimed at or intended to I f "T''''"^ *'^ ^^^ part, viz., the keeper of any hotel. "^ *' ''' *^^ «'«^ spirituous or fermentedTn ' ^"^'^ °'" ^^^p in which -H but extendsTr ^s^ :,^ ^^ "f^^^^ person within the municipality. 187.-).] SOUTH ONTARIO. 443 ami that tho penalty iii.po.sed i« contined to the offence of selling „r giving referred to in that portion of the .section The clause in 4uestion, with .several others havinrr for their object the preservation of peace and good onl^r at election,s, is to be found in the 22nd Vic, cap. 82. That to whicli this .section corresponds was consolidated in the Consolidated Statutes of Canada, cap. 6, as section 81 and read thus: " Every hotel, tavern or .shop in which spirit- uous or fermented liquors or rlrinks are .sold, shall be closed .lurmg the two days appointed for polling in the wards or municipalities in which the polls are held, in the .same manner as it should be on Sun.lav during divine service an.l no spirituous or fermented litjuors or drinks shall be Hold or given during the said period, under a penalty of mo against the keeper thereof if he neglects to close it and under a like penalty if he sells or gives any spirit- uous liquors or drinks, as aforesaid." So far there would have been no room for doubt, but in re-enacting this section in the Election Law of 1868, the wortls relating to the period of divine service are oinitteil • the words " to any person within the municipality " are' added after " given," and instead of affixing a distinct pen- alty upon the keeper for neglecting to close, and another penalty upon him for selling or giving, the clause con- cludes, " under a penalty of $100 in every such case " If these words have the effect of extending the penalty to each case of omitting to clo.se a tcvern, hotel or shop, as well as to each case of selling or giving, there would 'be no good reason that a wider signification .should be given to them when read in connection with the latter part of the .section than the former. The party liable to the pen- alty for omittinff to clos,'. must be the keeper. Why should they be construed as extending to every person when read in connection with the remainder of the section ? My own view is that the new enactment is in substance the same as the former one. It is impos.sible to believe that if the Legislature had intended to effect so sweeping a change, they would have left it to be inferred, or as a 444 PROVINCIAL ELECTIONS. question for argument, instead of making U „i , «titute a senari^P nW.r. n , ' ^ P^'^^«"">l', con- R 509). "• ^^"^'^ ^'"' ^'"^ V. i/,7/.-^.,,, (:j T. I can see no good reason for holdinc. that th. T • , ture intended to confine ih,. r. u 7" ■^^"'•'^*^- the offences enuineia ed in he «^ !> r '"?\""^^' '^^' as suggested bv Mr T., / n "''°"' °^ *«»' '^ol'liny, the /.:;,.; ,2 f:, ^J^;:^ ^-3^"-. tl-t the whole, vk offence! complete "nlv in ti ''^ """^'^^'^ ^'^ '^"^ -« being sold oft ven V ^^ '"" "^ '^"''"'"'^ '''l"^"'^ 11), : convictirjor Ic "'^ " ^^"^'^^■'^'^ ^^^ ^- & t: ^^t:i:^^^J^^' '''"^ ^^'-^^^ *« ^i-it section We so exprled ft T" ^' "'f '^^^^ '^^^'^ ^^^^ *« the first part of H ?• '""^ '''"''^ ^^ ^'^ «« expressed- keyto thiol Brir,'; °^""'^"^^ ^"^^ ^^-= ^'- guity, I have alrl.I . "' '' *""•>' '^^"bt or ambi- consLcttnof t^^^^^^^^^^ ^^at in the Legislature intended t \ " ^' ^^''■'"•"«** '^^' «^« common iaw fu^^r t an t ->^ -ovation upon the The law rather in rs that our A T^ '^'^'^'^'y mnire. any alteration otW I \ ''"'' ""'^ '"^'^"^ <^« '"^ke -hat has b en n lain . '" "' ^ 'P'''''''''' ^^^' '--^^^ had had that dest^ ft is"?"n' ' '"' '' *^^ P^'"^-'-'"* 1875.] SOUTH ONTARIO. 445 in mind that that word is to be found in the original Act, wheie the penalty was unquestionably restricted to the keeper of the hotel, &c., and, as Mr. Justice Gwynne sug- gests in the Lincoln case {ante p. 159 1), was probably added to prevent the possibility of the party proceeded against for the penalty evading the statute by setting up as a defence that he did not sell, but gave, the drinks. But there is an additional reason for concluding that the Legislature did not Intend to effect so sweeping a change under a section which purports in its introductory clauses to deal only with hotels and shops where spirit- uous or fermented liquors are sold. In such a case we may fairly refer to and examine other parts of the Act for the purpose of ascertaining the intent of the legis- lature. On referring, then, to the 61st section, we tind that the candidate, or any other person, is authorized to furnish drink or any other entertainment to any meeting of electors, even on the polling day, at his or their usual place of residence. Here, then, we have a clause in the same statute expressly permitting what another section, in as express terms, prohibits, if the construction con- tended for by the petitioner be the correct one. Now that the elections are all held in one day, a literal compliance with the tirst portion of the G6th section would be impracticable, there being no such exception as is to be found in the English Acts in favor of the receiJ- tion of travellers, and in the amendment to the Act that has just been introduced, I see that it has been omitted ; but whatever may be meant by closing a hotel on the day of polling, it is directed, and the failure to do so is made a distinct offence. I will refer only to one other matter which confirms me in the opinion tliat in the construction of this clause we shoUiil give no further effect to the words than they clearly and unmistakably bear, which is this : The Legis- lature, in what is popularly known as the Dunkin Act, has declared that no prohibitory law shall be passed by any municipal council without the consent of the ratepayers, 446 PROVINCIAL ELECTIONS. Ut). enactment. VZ „' ^tX^II *^ /"^^^ -^ - entially to pass such a LwT t '^' '"*'"^'^^ ^^f^r- applied only to hotel and shop ke n ' "'n" '"* P^^^'' and fermented liquors ? ^ P""' '""'"^ ^P^rituous EleetionLawofl86Si' hehoterori^^^^^ acting in that capacity • that h! f ^^ ''P'"' ""' P^''^"" son who is -uiltv of ; ' • , . ' *"'* '^^ ^^^"e, is theper- additional penaS ^p .^ Z^^-fl? '' '''' *«^^'^'^ and whilst the investiS of t ^''^'" P«"-ff hours: confirmed me in the cohv ^H IV^'' ^^^ ^^^'^ ^""v decision of the CoultZuek7 f ^^ '''"'''''''' ^' '^^ the hotel-keeper of thi^t ^ '''*^ *^"* ^ ^^^^^^^n by -sent of thfcandidlt ^Td ^Tj'l '"^^ ^^ -'' the petial consequences affilTl.!.'^''^"^'^"*^''^'' prepared to hold'that L a t^t o^th 'T.'^' ' ^'" ^^ «f a corrupt practice in CLI t" T'/^^ '' ^""'"'y prohibited hours To V"''^^"'^ ,f * hotel within the that there could be two ' '' n t ^' '"^ ^^ect to hold ^^'^- the statute ht tpordt^ o^e ''' ^^"^^ '''^-' ^^^:?t1^h^^;:~ of 1873. '^''"' ^^*hin the meaning of the Act Patterson, J a — Thp lalioa, of section 66 the 'iS"„f l °'' '''''^''' *"'«'' «» "'- V agent, of the candXTu j:'I '° ™''T '"™ the persons in each p««o i .""^ng the hours of pollimr, - tavern; the agentsTot ?' T'' ""^ '"^^ ^i"^-t ^nerely casual guests ^"^ *^*^ tavern-keepers, but Tl^Sir;:Jt:oZf^'^--P-^^ely alike. facts of the agenrand tt r'''"'^^^*«^^^ took place. ^ ^ *^' ^^^''' -here the drinking 1875.] SOUTH ONTARIO. 447 It is contended by the appellant that under section 66 the giving of spirituous or fermented liquors hy any person to any other person during the day appointed for polling is made penal, and, by the Act of 1873, is a corrupt prac- tice. On the other side, it is insisted that the section applies only to those who sell or give in the character of keepers of a hotel, tavern or shop in which spirituous or other fermented liquors or drinks are ordinarily sold. It seems to me that we must either construe the clause liter- ally, and give their full effect to the words " no .spirituou.s or fermented liquors or drinks shall be sold to any per,son ;" or we must read the word."' with which the clause com- mences as indicating the class to which the whole clause applies, and read the clause as if worded to the effect that " no keeper of a hotel, tavern or shop in which .spirit- uous or fermented liquors or drinks are ordinarily .sold, shall open his hotel, &c., during the day appointed for polling ; nor sell or give to any person, &c." This was evidently the effect of the clause as it stood in C. S. Can., cap. 6, sec. 81, where it forms, as it does in the Act of 1868, one of the provisions for " keeping the peace and good order at elections." It is not difficult to suggest reasons why, as a matter of policy, it may be desirable to extend the prohibition against distributing liquor on polling days beyond the ordinary dealer in liquors. "We have, however, to inquire whether thaf has been done, and if so, whether this ex- tension is in any way limited, or whether it reaches all persons in the municipality without regard to the place where liquor may be given, or the purpose for which it may be required. The consequences which would follow from holding the >e.striction to be entirely unlimited have been well pointed out by the learned Judge below, and they are of a character ■so startling thai it is impossible to suppose they could have been in the contemplation of the Legislature. And, besides th's, the clause, so construed, would apparently be in confiict with section 61, which allows a candidate to ,##i«' r:^i-''vn in tne same mannpr no It should be on Sunday during divine service "-aTo i •sion apparently made because the omitted words were not applicable to any law in Ontario, but which ha no be" mg on the argument now in hand. The second is the insertion of the words which I ouote n Italics in the passage, "and no spirituous or fermered t/ie Iwuts oj mch mumctpcditij during the said period." 1875.] SOUTH ONTARIO. 449 The c ause as it stood was, in its terms, general enough to torbid the selling or giving of liquor anywhere in the niumcipahty; but I have no idea that either the most literal or the most fanciful expounder would have so con strued It. Where was the necessity for the words now inserted ? To my mind the reason is plain. The whole section as it stood admittedly applied only to keepers of hotels &c. The danger was that this part of the section might be read as forbidding only selling or givin.r in their Miscs, but not the dispensing of liquor outside of their four walls That doubt is set at rest, and the present section IS either .simply declaratory of the law as it stood or uiodifies It only so far as to make evasion of its intention more difficult, without, by force of the insertion of the particular words I am now discussing, otherwise extend- ing its effect. The third change is in the penal part. It formerly read ■'under a penalty of $100 against the keeper thereof if he neglects to close it, and under a like penalty if he sells or gives any spirituous or fermented liquors or drink« aforesaid." It now reads, " under a penalty of i^lOO in every such case." The words themselves appear to be only a statement in a general and comprehensive form of what was before expressed in more detail. The ar . -'.lose the house ? I apprehend there would i^e a sencus difiiculty in enforcing the penalty for ne-^lect- ing a sta'.atory duty, unie.ss the statute made it the duty ot some particular person. As f ai as the clause expresses 450 PROVINCIAL ELECTIONS. [A.n. aWec»„>,l™„ti„„ adopted, and that ZnH, ,ZT7°' eatabhshraent is to be oIosB.l th.f . V" ""<' ™" .in it shall not be opened amHht 1 'I"'™!'-* '» saying wi.0 open it is ?he^C i , nde^d^'Ttl "*?""" °"'"- object to analyse this contention tlte J It T,""""' opened " or shal b Te ' do L"". "T'' *"" ""»' "= found so clear that if a s'™* openTd « '7"" ""' '" absence of his master fl„. , ! '^ "'° '■o°» m the i-aity. M;ob:*;,tcr,ia;in:Th ■'«"*'"««.= by the omission of the word^'i „ft 1 I "'T ""' the Legislature have relied on TT, ^'"P" ""''^"f '' language instead of us Z an e Cf,^ 7"f ™f™ »' *« tend to other ,vords an eJeet"JlIh:,;tarr' w"-^' to point out that bv ^triniUr ^ . • "^ * '^^■**^''<^' fl..t part of it „ouij; trtrits ttTr' ";; be made operative at all. it would be bv . , °''' ■ule of construction dependin" partly or„^'°' '° ■'" and liabl. to lead to a wrong .Zj^ " P"^'™'''?"""' We get rid of all the difficultv Iw I^^"i • ^ law as it was, where w. tinfZt wL I = 7' '' '''' We then inquire has thp 17 I . '■''*'™ ^'^^ ^''"bt. find that the Rwineeoto^t^" ^""^"''^ ' ^"^ ^^- W Quebec, Jl! il^^r,^^^^^^^^ or desirable to re-enact the law r latinAo . T'T^ re-enact it, making such changes Is tlfh! T "'' ^^'' tion re,uired; buUndicatin;!,! i^t tLnTl '"^^ law except where that is d^ne n ewes? t "'"' '^' in adopting the law then in W in E^^^I^r'T ' ^^ '■' age of the Act in itself does not under If ^'^''" imply an intention to change 1 "w . T"'"'*""'^^' 1875.] SOUTH ONTARIO. 451 question being regarded as meant to be and as being a re- enactment, with only such modificationa as I have noticeil. When we refer for explanation to the law as it was, we find no difficulty in reading the words, "under a penalty in every such case," as the same in effect as " under a penalty against the keeper thereof, if he neglects to close it, and under a like penalty if ho sells or gives." We have either to take the new section by itself, when we find that one half of it is inoperative, or if operative at all, is only so by some nicety of construction which can never be other than doubtful, or we have to take it as a re-enactment of the old law, when the whole is operative. I do not think the word " given " as it occurs in the phrase " sold or given " adds much weight to the conten- tion for the more extended construction, as to have prohibited selling only would have been to invite evasion liy almost suggesting that the tavern-keeper should dis- tribute the liquor on the pretence of giving it. I have already said that while satisfied that the sec- tion cannot be read as forbidding the giving of the liquor hy anil one, without restriction as to place or purpose, I am not able to perceive any ground, satisfactory to myself, for holding that the restriction may extend to Persons, other than the keeper of the house or person acting in that oapacity, who give liquor in the house itself, when it would not touch them if they gave it else- where in the municipality, as in the charges now before us, which are ordinary cases of treating, the person charged as giving did so merely by buying from the bar- keeper, and then by his own hand or the hand of the bar-keeper giving it to others. We should have to impute to the Legislature the inten- tion to convey by the one expression two separate man- dates, one of which pre-supposes disobedience to the other. As far as it affects the tavf i-n-keeper, the enactment is that he is neither to open his house nor to sell or give liquor on the polling day. If he obeys this command, no other person can possibly give, on that day, any of I 452 JPROVINCIAL ELECTIONS. [a.d. the tavern-keeper's liquors. He is to retain his whole stock sa ely in his own possession. It woul.l sen auity rule ot construction on which we ..hould hokUha the Legislature, in concemplation of the tavern-ke.,„ d|sobeying he law by parting with liquor, meant to p- vide against such disobedience by the further comnLl that If he did so disobey, the recipient of the liquor Z not give It away again under a penalty, and particularly as no penalty is attached to the act of receiving it i such an intention existed it should and doubtless woul, have been somewhat more clearly expres.sed The only other case in which it can be suggested that 9mn, a a tavern, etc.. is the act intended, iffhe le persons bringing liquor from elsewhere to the tavern giving It away. Th: •:« too remote a po,ssibility to r^Z more than a bare mention, and no good reafon can suggested why a giving of that nature .should not be a offence wherever committed, as well as when comn itte,l in a tavern or place where liquor is ordinarily sold Gibbsld""!' *'?:''''■ '^'' "^'"*^' T^«'"^«' Clark and ^X!'' ^^"'^'^ '-'■ '' '' '-'^'-^ ^' ^™ - the The same remark applies to a personal charge against the candidate tor treating at Rays tavern, which seen, to have been urged below, but which was not renewed befo us as one ot the grounds of appeal. It is not necessary for the disposal of the case to dis- pose of the other questions discus,sed in the judgment betore u, but on two of those questions it is propef t we should expres.g our opinion. [The learned Judge then referred to the agency of Wiison, that he was an agent. He then proceeded :] The other question relates to sec. 66 of the Act of 1868 ?o^ In T 'T' "^ *'" '''"^^^'''' ^'^d treated one ivern ' 'o l' l" ^""^"^ P'"^" ''^ '" Whitby, at a avern in 0.shawa. during tho hours of polling. The leaxned Judge held that tWs was not an illegal ac^ within 1875.] SOUTH ONTARIO. or 453 sec 66, "because the liquor was not given by Clark to Jordan within the limits of the municipality where the poll ot the town of Whitljy was held." I think this is a mistaken view of the section, and that the imstako has arisen from regarding the prohibition as aimed at the treating of voters; and with that idea, reading the Avords "municipalities in which the polls are held" as meaning tlie municipalities in which are hehl the polls at which tU voters who art treated are entitled to vote I thmk It IS quite plain, not only that the object of tlie en- actuient, viz., to preserve peace and good order at elections, would be very inefficiently attained if open house might I>e kept for all who were not voters of the particular ward or inunicipality, but that nothing in the section points to that construction. An election is proceeding for the riding: Whitby and Oshawa are two separate municipali- ties in the riding, and in each a poll is held durin-. the same hours. A tavern-keeper who sells or gives liquor in either municipality is plainly violating sec, 66, whether he gives It to voters of that municipality or to voters of the other municipality, or to persons who are not voters The prohibition is against selling or giving within the limits of a municipality in which a poll is being held, without any regard to the persons to whom the liquor is sold or given. The decision in Clark's case is therefore upheld— not upon the ground on which the leu:ned Judo-e rested it, but upon the other ground wJuch I havr- discussed, viz., that the corrupt act was committed, not by Clark, but by the person who sold him the liquo.-. The appeal should be dismissed with costs. Moss, J. A.— The learned Judge below, upon a review ot the evidence and an examination of the authorities, held, although with much hesitation, that neither Thomas nor Gibbs was an agent by whose treating in taverns the respondent could be affected; but he was manifestly of opinion that if the agency had been established, their conduct m giving treats, althouc^h i-ot shown to be for %,, J! 454 PROVINCIAL ELECTIONS. [A.D, Hi the purpose of influoncin^. votes, would have avoide.l th election. Un further c„„,si.leration he seems oL inc.^a to th. View that agency ,,., bee:*::, ^HI the ca e of Thomas ; and I nn.st ay that that appea,- mo to be he proper conclusion fro.a the evidence In case ot ci.-k he .lecided that agency had Teen n ov^I but he thought that his treating was ,^,. , cor 3 D within the meaning of seetion^M-orreirt'^rer; hall refer presently. But it is broadly u-^ued b , earned counsel for the respondent that. evL ass „,i'. ^-persons to have heen age,,., there was noZ" practice, because section 66 of tl.e Act of ISfi« ; •intencl.i to deal with the keepers^nlll,"^,;:^ shops in wh,ch spintuous or fermented liquors I 'II arily sold, and to prohibit the sellin, or givin. f l" by persons answering that description. \t tha b rue interpretation of the section, it b.oomes imina o to discuss the evidence of agency. 0„ the oth r han IS contended by the counsel for the appellant th'r h section ,s divisible; that while the till ,j\^:^Jl keepers of taverns. &c., alone, the second xtends t a. ^cU.s peplthe,ivingof li,.or by any pe::':^:^ person in the electoral division during pollin-. day • an I hat consequently, if ,nven by an agent of th^ aljU during the polling hours, the electio'n is avoided by of sections and 3 of the Act of uS73 (36 Vic, cap. The words u,,ed are certainly of extreme generally contention. But there are numerous cases in which Ian stances which the Courts have held fitting to be Xd m arnvmg at the intent of the Legislature. [The i:a n Judge here c ted and reviewed the'following author :e V. B cstmmster Local Board of Works (L. R. 7 Chy .597, • Sedgwick on Statutory and Constitutional Law, 234] ' 1H75.] SOUTH ONTARIO, 435 These roforences are autliority Hufficient, not only for the proposition that we should regard the terms of th(i enactment for which section 6f] was substitufod, hut that we should presume that the Legislature onK intended to clmnge the law to the extent that it has - y and posi- tively expressed. The fiOth section of tl ,ute of 1«6S was substituted for the .S 1st section of i, • Consolidated Statutes of Canada, cap. G. In each statute the section forms one of a giuup collected under the heading of " k' [)ing the peace and good order at (dections." Some dou'>^ has been expressed whether it is allowable to refer to this heading ujion a iiuestion of the proper construction o:' one of the sections coming under it. It seems to me that it can be taken into account for the purpose of deter- mining the immediate and special object which the Legis- lature had in view while passing these sections, and tlim'e is no doubt that the nature of this object may have an important bearing upon the interpretation to be given to language of a general charact.r. In Bri/an v. CIiiM (.') Ex. ;^08), Pollock, C. B., refers to the mode then "recently introduced in statutes, namely, by having certain clauses connected In a sort of preamble to each separate class of clauses, which preamble may really operate as part of the statute:" and he decides that such preamble must I)e read in order to ascertain the meaning of the Legislature. The so-called preamble was this: "And with respect to transactions with the bankrupt, &c., be it en- acted." Our statute may fairly be read as if expressed thus: " For the purimse :)f keeping the peace and good order ;it (dections, be it enacted," &c. In Robinson v Col- lingwood (17 C. B. N. S. 777), the word "trusts," used with- out any limitation in a statute, was construed in the light of the preamble to mean " trusts in favor of the grantor." It appears, then, that the object which the Legislature had in view when it passed the sections in the Consoli- dated Statute was the maintenance n)' peace and good order ; and that the object was still tiie same when the corresponding sections of the statut of 18(J8 were enacted. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 11.25 U|21 §21 m ^^ ■■■ ^ |££ 12.0 1.4 illlli.6 phic Sdaices Corporation 23 WIST MAIN STUET WEBSTER, N.Y. MSM (716) •73-4303 f 'i 456 PROVINCIAL ELECTIONS. fAD. Am.r.l,nK t<, the principles of construction to wl.id, I have refern,,!. we ou.^ht not to a,ss„n.e that the Le^isl^t , Mnch „. the associate clauses was .v-onactin, the 2; statute. conten,,lated such a wide extension of th - IS contended fo.- l,y the appellant, unless it has „ language clea.y expressing that purpose. How wi.Ie I t^'TT ' V' """''''^^ f— e.xan.inati:>n the «l.st .section. There is no roon. for douht as to tl, .loscnption of persons who were aHected l,y its pt v . It enacts that every hotel shall he clo.sed'an.l n ^ ousonen„ent.Ili.p....,.a„,,,,,,, j^.^,^^,,,J^^ -..I penod under a penalty of 8100 again.st the C^, hereout he neglects to clo.se i, and under a like penal ambiguity The persons suhjected to a penalty for givi„. or .selling hquor are the keepers of the hou.se.; direct ^ bekept closed. In the statute of IH.H the ^:!^^ --except in .some particulars i.u.naterial to the prein^ arguiaen -precisely the .same until the part relat^ , tJ the ,>enalty is reached. The injunction'to k''f h^s and the prohibition again.st .such a gift are e.x > L^^^^^^^^^^^ ^r;';:i^r " "" r ^"'^^^' ''' ^"^"' *■- '^^-^ wi h t in ," "'"' "'''^'"^ *''^«^'-''-' ->•' -incidin, with It in the corre.sponding sections directe^*«»'te language of the 81st .section, he was expre,ssing the same tldn/i„ u n.ore conci.se form. It may be that in aiming la 1 tt .eunty, but such things have been known to occur in Acts prepare.1 by skilful and experienced hands. 1875.] SOUTH ONTARIO. 457 Regarding the fiGth section as it stands, it is necessary t(i supply l»y constniction the designation of persons whose duty it is to close th'i houses. The reasonal tie construc- tion is that these persons are the keepers of the houses. If the words " by the keeper of such house " must be in- troduced into Uie first clause of the section, it appears to nw that they should etjually be introducey my brothers Burton and Patterson, in con- tirniaticm of this, view, but content myself with saying that if this be the correct view to take of the .secticm, it follows that it is only violated by the giving of licpior, when the giver is a keeper of one of the hou.ses directed to be clo.sed ; and that no agent of th'! candidate will, by giving licpior to any person within the prohibited hours, lie guilty of a corrupt practice avoiding the election, unless he is the keeper of such a house. I only desire to add that I entirely concur in the remarks of my lirother Patterson upon Clark's case. If his treat- ing Jordan at Whitby, where Jonlan was entitled to vote and did vote, would have avoided the election, that would have been the result of the treat he actually gave him at Oshttwa. The offence does not depentl upon the character of the person treated. It does not matter whether he is or is no(< entitled to vote at any particular place, or whether he is entitled to vote at all. In my opinion the appeal should be dismissed with costs. Appeal dismissed with costs, (a) (a) No report of this caie waa aent to the Speaker, 4.")X '•HOVINCIAL ELECTIONS. [A.n. MUSKOKA. BeFOKE Mh. JlSTICK WlLSO.V BlUCKIIKIlMiE, illthto :.!,■//, V. . BeK(.HE the CoCKT vv Al'I'KA, Anohe. Sr.u,u,-r. /v/.w. v. ./o„x a m...u«. liixjxjiu/cnf. The rfHpnii.lf.it wan timriru.l with liiif nM ,.,.1 1 •" ""-"""'"' nave to rat, ehargen prove.; a«ai...t tll^ ri;!!,Zr''''''''-'''' '"-" '"^''^ *'-' -1«' on theeviflonce in o"e o,^^£l' ^ ''"'l-^'r """-•t;"'--"t, a.ul i* jn each of which thHS^i^r^^^""''^''-'"' '=^''''l^'^'-- fore the seimratn ..|.„.., ' l^V..""';'' "* 'J ""'"''•r conch.sion. f I... ■'It I, «eJnre«peettoapp...pri,ui;;;::;:^~;;t: I or not !'•"«« '"• «- >y".e.rt, to or f"?r a v v C/'r''*' "■" " P''"'"»e to 'procure H.-ch voter to vW-. o,' refraii. f,".?. ^"t^, i""*"^ """"• I'^rnon to'inJuoe „ . ■ •• -^......i from votiiii/ — (reversini; fVi/.iin .j i 'pii-if fi, f i"'l..^-"ee,«.,leHne;i 1^^ fl'o thl^ErA"'" i":* ^'"^^^ "^ """'"« ■;- y the conuno„\.w of tL'lUilr .Tt ^f^l^.'^ S " ""^ ^ ■-"«• -t«ope.Uion«U,atthefreeC^:^-ir^^KS.S-Sr 1H75.] MI'SKOKA. 450 tlmt in election eaoes, Mr. )f. C. Cmiirroii, Q.C, nud Mr. IJrnff for pt'titioiu'r. Mr. D' Alton McCnrt/ii/, Q.C., and Mr. Jlthintc for ro- spondent. Till' cases (|ij|)ost'(l of liy the leaineil Jud^e lire set out ill his Jui".i" it, ->l,i,.|, '"•■;;;n-'- "• pen:::;;;,tu:\':;:;;::''-"^'"^''"' .ci .V I *"'' ""^' ''^'^"'^^' '-tl. Witnesses I we i:.^'rT ''" r'"^ "^"" "^'^' - "• »-•--• in a ca.scMrt ev^^al t^rlT";'-. '"'" '•"'^""''^"'^' is entitle,! tn H ^ counterhaianced testinmny, IS tnt.tie tothe presumption of innocency in his favor ^'ZTl " ^'T: r ^^'^'-^ -. on li -r,: are still ttcl-E TZ "" ."""" ^'^^^^^'^ ^^"'•^" thui fi C"»s<(ieie(l ; for jt ,n the other cases I fin.l w»«- lespouuent, tile same witn»*wM i"ii oil * n ou,u,c witness m all of them as against 1875.] flrSKOKA. 4fil ■several witnesses — one, however, only in each case — I mIiouM tlien feel oltliged to rely more upon the impar- tiality anondent. I have already stated ni}- opinion on this point in the mat- ter of the North Riufrew cmv {u), in which also I acted upon it. I shall .state the conclusion I have come to on lliis cliai-ge wln'ij I have },'one over the other chaiges Kufore mentioned. I shall pass l»y for the present the duuxe ri'spictin;,' the speech of the respondent at Matthias' Hall, and take up the charjj;e relatiiiff to Sutierin's case, in which the responndent'.s counsel contended that it was ahsurd to suppose the respondent would, in the short space of two or tln-ee minutes, in a hurri(Hl interview, makt' a forrtipt piomise to a man who had already pledged his support to the respondent. There is no doijlit it was not a long conversation which took place between them, hut they hoth agree that there wa.s mention made of Sufferin being about to run for reeve, and about the ex- penditure of the S:},000 being made. The jjarties difier in these respects : Suflerin .says the respondent applied to him to give his support, and that the respondent said he heard Sufferin was going to i-un for reeve, and that lie wished Sufferin to go in for it and to support him, and that he (the respondent) would get Sutierin the laying out of the S'J.OOO, and that Sufferin said it was all riMf. of w.,a ■■'■»l.on,l,,„t i, i, „ ';" ™"'«; ""■ -'"''""'■nt .,f tl„. mf"t of S, 1 „ " • " •'"' "'"' "■ ■f'"^ »'«■■■ Pivm.,l l„- SuttM,, i'."'"""''" "l'""'" « 1.0|K. „„|y „. iH.->„„i ;„„„e™,; . ' x:,:,''>- ■^'-t'" »-' tlie appropriation Imt a^ fl... 1 '"'^'"- '"" ' comint „Hl.,. „,. ,,,„„ ,'";"■ "'" "ni- »tatei,„.„t is tioni,.. i °„ •,"""" ''''''"°' "''l'l'<'''"''l'^--''>'- »«v„,.„| v„° \ ,' ,!,""'"'■ "'"""'™' i» a ■■"-■■■..■ l.o,,o ,li.. -n,li,iat., tail! •,'■■?"•""■'' ''^ "«= voter to th. a"o«-o.: t.; a^Cn-rr :::;:;'•' -- "- «="»«" «- oaJ!,Seri,r„;::;^,iSrat''^'°t ■«"'-' charges, if .sev^lh ,^' . , P'"""'^^- ^"* *'^« ^th*^'" the united Sof r,^'^' ^"'^••'''^ -'*"-•-> ertect of th ton lent ""^' '^ '^ ^^'^^'•«-"« *J-' lespondents unsupported word, I may l,e 1875.] MUSKOKA. 4)).'{ e convursa- (il!lij,'('(l to attach such ndegrw of iiiipnrtuncc to the cohi- tiined testimony of tlu-so witncsMos, as tolioM tlit- diarcfs to wliieli tlu'y si-vorally speak as sutfioictitly piovi-d in iiiw, aj^ainst tlu' opposinj; tcstiiiioiiy of the rt'spoiiilciit. I ■iliiill, lit'foit' foniiiii<,' any opinion on this {)art of the cast-, oinsiih'!' the otluT loniainin^ char<,'(' of the like j,'eneral cliaracter, restinj.' on the eviih-nce, also of one witness on tneli side, which is contained in the next ehaij,'e relating til Barker's ca.^e; the witness for the respondent l>einj,' the respondent himself as in the two preceding,' cases. [The learned Jndj^e reviewed the evidence in the char^'e ivft'ried to, and (K'ciiled it was not pi-oved.] The remaining charge is the one relating to the respond- ents speech at Matthias' Hall, in the township of Draper, and as it is a peculiar and a very important one, I shall have to get the language used as accurately as I can. I must make out, in the first place, what Miller really said, as well as I can extract it from the accounts of what lie said. His own statement, especially when it is adverse to him, limy he accepted as a genuine account of his language. The respondent says he used the words following: " I was the recognized ministerial candidate, having Iteen nomi- nated by the Reform party. That I undeistofxl it to Ite the constitution 'I practice here, and in Kngland, for the Mini.stry to dispense, as far as reasonable and practicable, the patronage of the constituency on the ieconniien uWtb. ot any place or en>pioynu.nt. or a prouns; ,„ p.ocu e. or endeavor to procure, any place or en.piovn.ent I vI:t T' "■ T.^"'^'' ''"•^^"' '" -^•-•' ^ ^' ''"''■ ^^as, „ eftect, "I a.n the Uovernnu.nt candidate, and 1,^- cause I an. so. I .shall have the patronage and inH::!; ' i, the Governnu.nt as to appointnu-nts and in the layin.. o„t of .noney appropriations in the district roads, and in tl appon.tn.ent of overseers for such works, and I s al ha • only o tl 1 r f T '"' "" ""'"'^ P"^«"'^' ''"' --'-t^ only of the district, receive such appointments." I think 1M7.V MISKOKA. 4({:i it is not iin ottW or pi-omist! of any plnco or fiupluynifiit, or ft proniiw to procure, or to umivavor to proc-nrt', any pliict' or «'nipl(»ynit'nt to or for any \<>trv or otlu-r pt-rsim. 1 think it is not so, hccauHf tin- nuniltcr of ovcrsfurs ill tin- district wouM Ik* coniparativfly siiiall for tin- t-x- |)(ii(litur»' to lie niadt; tlicn-, ami tlw promise, if one were iiiftili', was not exclusively atlilresseil to tliose present at Mattliias' Hn\), liut to the whole constituency. If the respondent liad said tlie district was aliout to lie formed into ft county, ami a sheriff would have to l>e appointed lit once, and he would have the disposal of that oHice, and he wouhl see that a resident of the district would <,'et it, ! think it could not properly lie said that the respomlent had ottered or promised a place ir employment, or had promised to procure, ttr had endeavored to procure, a place or employment to or for any one within the nieanin;,' of that section of the Act. Tlu; expectation that each one of the constituency would form or mi<,dit form on such lftii;,'ua^M', would lie of the vayuest and most indefinite kind. But if the respondent had .said that 100 or .'»00 men woulil lie reipiired for a jiarticular work at good wages and for a good while, and he would have the selection of them, and he would take care they were taken from the district, and that no outsiders shcmld he employed, and that he would have that patronage whether lii- wa,s elected '•? not, 1 am di.sposed to think that such a ca.se migl' .^e hrought within the operation of that section of the statute. For although there was nothing a• '-t MHu.in, wl.i,.!. on,.. w< .M n ,. ;: -.p.yon..ofth...nwo„I.|.in.n, i not . ! ,' '■•• A.-t. n tl.is .|iH„.i..t tlM..v wnv'at l.-H^t 1.4.)(, I-'- '''7' :"'"''''^'"'»"''''''''^' •-•••--•-. •'.•«•,,>; ;••• -'-'V -k fo.. o.. tak.. ti.,. om..... I „nlv eoni.. n -•'•haps tlu.n. w..,v .s,.v....al l.un.l,...!. an.l as'tl... .. ".e w^s not very lar«, (i «... ,.,„ ,,„.,. ,,,„.„...; ;;;; '•■• •'':j|'^Y "'''''"■"•' •'^•^'^ ->»'•' -t..; "•'-""- ""• -lata a,v not ,Mv..n to nu. to ..nal.l.. n • sa..thunMu.c.nra...|,.:,,tIWn., n.ason to X^^^^^^ hat, act,,.,, upon thon.!. which . hav stat...!. th. ' X^iJ. "ur:::.;;;;;'","' ^" — -i^'-i-:;.- I I ui. Alt ot an offrinr |,r.Mni.s.. of any kin,l ■,.,.,,,„« pac,. ,„.,.„„.i.,- t, „,,!.,, ..,„„,, „,:^,, ■ , Ilu ,, I,,. ,,„. ,. , , ' ' "" """""'""K I" un.l..,. i„. 'nunc I (ij tIK' i*cH[i<)ti(lci)t. Th.. 72n.I s..,.tio„ of th,. Act .Icfincs what is „n.|„.. i„. "•••:-;: "";••• t'-Ht Act: .•Kvv.y p..,-.,, who shall .ho- ;'Y';;lnvcUy. hy hin.s.|f o.. hy any oth.... person t ;;-»;"'t ".ak.. use of. o.- th.-aton to „,akc usc'of. a v I, ;;:r'^'''^*""r''''''«-^-'-ti..vatcnthcinrii i : "...Hclf o.. I,v or th,ou.M. any other person, of anv in nv ' a.na.e. i.arn. or loss. .,r in any nlner p..ct e S' . «t.on upon or a,.un.st any person, in or.l r to in. ; n.pel such pers<,„ to vote or refrain fn.n. vot .r;' sl.ali Ik. .leen.e.1 to have connnitte.I the oft-nce of m, h u' H.Huence. an.l shall incur the penalty of X200 •■ Can the case he l.rou^.ht within the tern.s just quotcl ir^:: ^^•^-r'^"-^''«''yth^i^,;:r;^ • • '"ake use ot . . any restraint . . or in anv .--K.r p..ct.se intin.i.latio„ upon or against an^ ;. ... ouler to mluce or con.pel such person to vote i .Ifrain 1«7:..] MUHKMKA. 4(17 fro... yotn.K • • sl.all U. ,1..,.,....,| t.. l.avc c..,..,„itu..l the ufloncc. <,t un.lu.. influ..,.n..- Tl... wor.l rr.ir„h,„/ in ust-l, It will Ik; soon, in ,uM.».ctior. with Jhnr or riolnur an.l H<. may Ik- .soi.l t«) inunri some physical rvstiuii.t. Hub mninn has I...,, hrl.! n<.t t*. Ik,. conHiu-l t.. in.licHti„Konlv iHHhiy .n.|u.y. Th.- app.vh.nsi.m ..f Ihm.,^. ..xd»,l,..| IVo.h tl... yac-.a.,„.,.tM of tl... oh.uch, an.l th.. ..umurv .,f ,.t...„al |.i.nisl.i...-nt,n,i^.ht Im.. fa.- n..,iv powo.fnl than any th.vat ot cM„po.al punislnnont. Count,, of Dnhlui a,.sr ]h27 (EHpnmss,. :,7, u„f.). S., r,,(r,u,>( .hx-s not ...ran only co,- pe inn ,1 upon election speeches. It is said "a husting's speech a fZ:, G " ' T"'"; '"'• "---'*y'-Free.na Bedeial Government, p. 8:]. But that will not sanction any h.„g beuig said without any check or restraint When the respondent made the declaration he di,] which as the .subject of this charge, what was its natu ' purpose and nnport ? It was to show the electors thl ' under any c.rcun.stances, he, the respondent, woul.l ha •' the influence and patronage of the Government in t eh3ctora district, and that he would distribute them amo... the residents; and that under no circumstances would U opponent have any such favor or influence. The effect that was to draw votes to himself and to withdraw them or keep them froiii his opponent ; and it is a fair condul: hat the respondent intended to bring about such a resu! I think that IS not a fair or warrantable course of ai-n,- ment to ake; i does interfere with the free deliberation and choice ot the electors of their candidates. It is madeZ less to struggle against the influence and patronle • : Crown so to be exercised, and useless to vote fort In i- date who IS m no case to have any voice or influence L such matters m the constituency. Whether such langua. e will operate upon a large body of the electors, or^pt wha precise number it will operate, is not ,so much t question. It will undoubtedly operate upon some oJ th especially in this district, a newly .settlecUparselv peon newly settled, and because the labors of the peonle ar. ot a home for their iamilie.s. They have not received and are not recemng the return a. yet of their labo Tl^^ afdlt'l : ; '""VT ""'^ *'^^"- ^-^ -munerativ and It was designed to operate upon them prejudically 1H75.] MrSKOKA. 400 and unduly as affecting their choice of a candidate; for, of course, the candidate in dispensing his favors will prefer those who supported him to those who opposed him. I don't place any stress upon the respondent calling himself the Government candidate or the ministerial candidate; it is the common mode of speaking ; all that is meant by it is, that he is the person that the party which supp ness was not .tffl TI' ^"^*^"dg«' J- held that one wit- iurv ^ZTL ""^ ^ '"•'***^'^ ^" indictment for per- J-y. that th.s IS not a mere technical rule, but a rule I.A-V* 1875.] MU8KOKA. 477 founded on substantial justice. The facts in Rrg. v. Porhrr are worth noting : A debtor had made atfi.lavit that lie had paid all the debts proved under his bankruptcy except two, and in .support of an inilictuient for peijury on that affidavit .several creditors were called, each of whom proved the non-payment of a debt due by the debtor to himself, and this evidence was held insufficient. The dis- tinction between a criminal pro.secution and tlie present case is not to be overlooked, but considering the respond- ent's position as a defendant in this proceeding, there is not only the presumption of innocence of an offence charged again.st him in his favor, but also the maxim, applicable in civil as in criminal ca.ses, " semper prestimitur pro ncgantc " (See 10 CI. &. Fin. 534.) The respondent is charged with corrupt practices. There were four cases on which the learned Judge took time to consider, and three were held to be sustained, and the election was declared void. He was in the position of a defendant accused of an offence before a competent tri- bunal. The presumption of innocence, until his guilt was proved, was in his favor— having denied the charge ; the maxim above quoted was in his favor also. The case as put is one of even and fully balanced testimony ; each separate charge is supported by only one witness, and is contradicted by the respondent on oath ; and, as I under- stand from the judgment delivered, would have been found against the petitioner if it had been the sole charge, for though the proof adduced by the petitioner sustained it, it was answered and displaced by the respondent's evi- dence. It is not asserted that this evidence in rebuttal was untrue, or that the respondent was a man not worthy of belief. I cannot follow the reasoning which makes the fact that several independent charges were, prima facie, proved— each by one witness only, and were rebutted, though by the respondent alone— a ground for convicting him of all, for no distinction can be drawn between them. And yet I cannot to my own satisfaction answer the arguments on which the judgments in this and the North 47s PRovrvcrAL elections, [AD. was nothing in he evTdt r'^;,;"'^ ^•^P'-^-'y that thon- '"anner of Linl it 'tl ^ , ' '•«''P«"''^'nt. nor in tl... eion whateto/I^ait: fpStlS ^"^' '^"^P'" con.n.enting upo; the evid^^Xh'^'Ht'^^^ It 18 clear that he had nn^ f *"'' «ufforin, »i.mio„ of thei.. :„.„i:f x°' ii:7''^ "™-'* tlieir conduct a, di,clo«,i l,v tl , '<«''""°>>y <" "f the behaviour of th ,.1X ^on hi" "'""^'°? "'«' whatoceurrclinconver^M™ .u . "^ '""'""••f going to vote, .ndr:* r."a'in,tT°'' "'T' *"' voluntarily onmirin^ .„ '' ^ t. ™ ^'Pomlent after thercrcdi^Wef.SI'^:,;Eh ■"■'■"'' "? '^■" '"'"^•■ the ^spondent^ngivl^'iittwre""'' '"""«*«""•' have to dL suci Lf LTZrie'Se "'7 '"' "« out on the record a, w« *K- VT . '® evidence set find accord^^g^ "' *^"' '^ '^'^""'^ ^^^ •^-wn. an.I two cases of HilTrdSnff?.' ""^"^ '' ""^^^'^ ^^ ^^e sent to constiS;: 2tZf;::^zzTtCt'^ ''^ ''- the statute) consisted merely of I. " '"'^"'"^ '^ In such cases it oughtTbe 1 f " T r^"f '^ '^"^'■' that the words imnuf^d f. *! "* ^^^'"''^ *" ^«"bt used, because'lsZ^ttn"^^^^^^^^^^ ^^ --" ^ cases, when two people are talkTnt 7 !, ^^'^^'^^'^ not carried out, it mrybe that th? f ' "^^ ^'^^^^ ''^ evidence, but one peLn und '^'^ }''''' fy S^ve their another different?, C^S^^^^^^^^^^ l^' ^>' should that be the ce when the TdvUL ^171 1875.] MUHKOKA. 479 attended with such highly penal consefiucncos as the Legis- lature has declared shall follow the infraction of several clauses of the Election Act. The learned Judge reports that he .should have fouml both the.se charges disproved if there were no collateral or accompanying circumstances to aid him either way. He tinds all the other charges, with the exception of the last (to which I .shall presently refer), disproved, which should, I venture to think, have .some weight. The collateral circumstance which turned t)ie scale, and induced the learned Judge to arrive at a. different conclu- sion, wa.s what occurred at Matthias' Hall. The speech there delivered imhiced him to adopt the ca.se of the petitioner with respect to these two cliarges also ; partly, as he says, " because of the weight of testiuiony hy their united force, and partly becau.se they are to .some extent of a like nature with the Matthias' Hall charges, resting upon the influence or upon the alleged interest and influ- ence of the respondent with the Government or Minis- try of the day, which it is," he adds, "not improbable the re.spondent used as an argument on these occasions, as he unquestionably did on the occasion of the speech." I can quite understand that a judge or a jury umy find their confldence considerably .shaken in a witness whom they were at fii-st inclined to credit, by his being contra- dicted by a number of witnesses, although each witness .speaks of a difl'erent subject. Still, after all, it comes back to the question of what credit is to be given to the wit- nesses on each side. The judge or jury, under such circumstances, would scru- tinize the evidence of the witness with greater care. The maxim of law is, " ponderantur testes non numerantur," and, as laid down by Mr. StarkJe, no definite degree of pro- bability can in practice be ssigned to the testimony of witnesses; their credibility usually depends upon the special circumstances attending each particular case ; upon their connection with the parties and the subject matter of litigation, and many other circumstances, by a careful 480 PROVINCIAL ELECTIOVS. [A.D. I* ;| f'>n»i.|,.mti„n of which v„ valu,- of (,l,.,i. . .• niimeiiml co,„|,n,i,„„, "° """" '"'■ '"m. 1 Jo not ur,.l„,-,t«n.l that th,,,,. i, „„,. ,„„„., . . *'■""■' »» '» "hat occurmi „. Matthia" H, , "■." o«^.;;t:t'th^ir:u:^^^^^^^^^^^^^ -™u^to,L,tho.f::;;::|f-:,:■;::|;;»j■■*-,.t Hi«i e I, not raflicient ovMenco to sunno, I '■•■ ill other «oi-cl, if ,„•; l support the chnrge, ,„., thoJu.i,.egTv t'cl ittir '" "™? "" '■"* '■*»• "l the ch.Uth: 1 ::,irr„7, :,":;,::':■ "™"'-" lioiition because a nu,„h,.,. r T ' "' '" » "■""•' each of which teJ^ltrittr T ™'"',''""'' '" that a limit couhl eve°nl,mllv • '""''""""olu.sion.or hi» conclnsion upo^the f i .r! "'' »•»■"., "'"-.sl. tlieothe,, wouWin itTul T <:'«•■«« in a.Mition lo the j„,,,,: i: L " Id ;, T '° '" "■" '""™''™'' Plicity ol' the a, : ta'whiJth '■ "T"' "■' """''■ aud that of the ^IZ^t^/:^^^^ "r""'^' ::;ut;i::«-r*£^^^^^^^ ■■■ * . ,e" and th '" I""'" """""tion of the -■ or ■ " "'.''"^""hich they were underalo,,! .;,"'" ■;""?. '"" "' ""^ P"*"' trathfulne,, of ... p,..ent,ancl .-.atHiir, evidence wa, given witi « .-.. fet Uas; anu „eco„,e, to the conclusioLtflr t 1875.] MUHKOKA. ¥M lit'licvo the mspomlont — a conclusion whicli, fi a pt-r- UHul of tho evidence, I slioulil also have arrive. 1 at, hut in the correctness of which I am further conHrnn-d hy two circumstances not referred to hy the learniHl Judge, viz.: (1.) That Hill iiiniself .states that he did n)t regard it a.sa Jiiibe ut the time, hut only awoke to the coascious- nv IS of there being anything corrupt in it some six weeks iiM. iv/ard.s, when it was deemed necessary to hind him flown by a statement under oath. (2.) That it was ileeined nece.s,sary so to fetter him. These two circumstances, apart altogether from the explicit denial by the respond- ent, carry conviction to my mind that the learned Judge's tirst impre.ssion was the correct one. In the Sutferin case it is clear that when the alleged conversation occurred Sufterin had avowed his intention to support the respondent, who was aware of the fact, and any promiae thus made could not have been made in order to induce him to vote or refrain from voting; ami this renders Sufterin's version of it highly impiobable. He is, moreover, contradicted by two witnesses besides the respondent. Sufferin himself admits, "I was not induced to support him by this otter of $3,000 (that is, as to the laying out of S3,000 on the roads in his township) ; it made no definite impres.sion on my mind at the time;" and the conduct of this witness was such as not unnatur- ally to call forth the remark from the Judge, that it was not straightforward dealing, and was calculated, and perhaps purposely so, to deceive. This also, subject to f'u investigation of the two other charges, he held to be not proved. " But," adds the learned Ju« It would seem that both the respondent and his od- ponent claimed to be supporters of the Ministry of the clay ; bu that the respondent claimed to be the recognized ministerial candidate, having been nominated by the Re- form party. He claimed further, that his opponent, havin. originally pledged himself to support him and then comin^ out in opposition, could not expect to retain the confi! dence of the Government, and that according to his ideas of constitutional practice, the patronage in the cons^^! uency would be in his hands, as the ministerial candidate, whether elected or not. It seems to be admitted on all sides that it was felt to be a grievance of some standing, that strangers were sent up to superintend the work on the roads, and the respond- ent IS said to have stated that, whether elected or not he would endeavor to get it remedied. Taken in the most unfavorable view for the respondent, what he did sav according to Mr. Teviotdale's evidence, was, "He would have the patronage, as he was the choice of the Govern- ment, he would have it whether elected or not elected ■" adding by way of explanation, as I understand it, " It wa's oversTer!^-''"* ""^ '""""'^ '''' *^' '''*^' and appointment of There is a slight difference between the respondent's version of this speech and that of some of the witnesses but, taking them m the strongest way against him, I have been unable to convince myself that they constitute a corrupt practice, or that they differ substantially from 'mWH- 1875.] MUSKOKA. 483 what is constantly done by candidates, in impressing upon electors the importance to themselves of being represented by a ministerial candidate. The learned Judge holds that such language cannot amount to an oft'er or promise of any place or employment, or a promise to procure, or to endeavor to procure, any place or employment to or for any voter or other person, within the 1st section of 36 Vic, cap. 2, and therein we agree with him ; but he holds that it amounts to undue influence within the 72nd section of 32 Vic, cap. 21, or according to the common law. To prove an offence within that section, it must be shown either that physical force was used or threatened, or that loss or damage was caused or threatened upon or against some person in order to induce or compel such person to vote or refrain from voting. This was not a threat, nor does it come within the definition of physical force or violence, or doing any loss or harm to any one. Can it then be brought within the remaining words, " in any manner practice intimidation ?" To bring the case within this branch of the section, it would, I presume, be necessary to show that some one had been intimidated. But it appears to me to be quite impossible to hold that it comes within this section at all. There was no attempt to work upon the fears of any one ; it was rather upon their hopes or expectations ; and would come more pro- perly, if an offence at all, within the bribery clauses, but the learned Judge has himself given the answer to that. Baron Bramwell, in reference to the evidence necessary to bring a case within this clause, is reported to have said : " When the language of the Act is examined it will be found that intimidation, to be within the statute, must be intimidation practised upon an individual. I do not mean to say upon one person only, so that it would not do if practised upon two or a dozen, but there must be an identification of some or more specific individuals affected by the intimidation, I will not say influenced by it, but to whom the intimidation was addressed, before 32 II 484 PROVINCIAL ELECTIONS. [a.d. it could be intimidation within the stafc»^P m^. ■ co.es under the head of general ^nti^^dlt n '' '""'^^ '^ Tlie suggestion that the offence was onP«f.'. , ' was perhaps sufficiently answered bvth/ T " '"^^ no such charo-e was JJ. 7u ^. statement that respondent shin ^0?^ cTll d' ''*^"°"' '"' '^^^ '^^ the intimidation is of such a .t^!' '"^ P'"^' ^'^^^^ extensive in its opeattnTw T^""' '° ^^"^''^^ ^^'^ datecUosuchanfrtTs'trt^:;^^^^^^^ of election had ceased tn «v,-o^ • '^''^^"^"nattrecdom evklence, in l^r^ouM be '"iL^r""": ^ ''"f ■'™'' case would be to render a law hi V "'^^^'^r^''^ >" t'"s ent IS a eo-ed to Im^.^oo-i "'"at the respond- candidate was to subieot ih 1 . " *^^ P^'* «^ * ^voided.and to expose h,!^ r ? ^' ^'^^ *^« ^^^^^^^" tion for any ol^e^^tt ^^^fttSr ''^"^"'^^- cipal office, for eight years "' ^' ^"^ °^"'^^- rupt practice within the Act !nT^ . '^' '' °°* ^ '"'- of Mr. Justice WilL in the /T/ .t'^ ^'' '^' ^'"^"^""^ the extreme solemn fv , ! -^'^"^ «««''-" considering all its substantials been reiu krlvl , '''' ?" J"^'^^' ^° oeen regularly and properly conducted 1875.] PEEL. 485 —looking to the amount and weight of evidence which outrht ju.stly to be required to disturb a proceeding of that description ; " and looking, I may add, to the highly penal consequences resulting to the respondent, and find- inf no evidence which, in my opinion, ought to outweigh the denial of the respondent, and justify me in finding him guilty of the offences charged, I think we ought not to arrive at a conclusion adverse to him, and that the appeal should be allowed and the petition dismissed. Patterson and Moss, JJ. A., concurred. Appeal allowed and petition dismissed. (9 Journal Lcgis. Assent., 1875-6, p. 198). PEEL. Before Chief Justice Draper. Bbampton, 3nd to- 5th, and IJfth June, 1875. Before the Court of Appeal. Toronto, 17th December, 1S75, 24th January, 1876. William Hurst, Petitioner, v. Kenneth Chisholm, Respondent. Corrupt practices— Partial dmial— Appeal— Further evidence— New trial — Withdrawal of petition— Refusal to allow substitution of petitioner. Charges of corrupt practices, consisting of promises of money and of em- ployment, were made against the respondent and one M., his agent. Both the respondent and his agent denied making any pronnses of money but left the promises of employment unanswered ; and the Judge trying the petition [Draper, C. J. A.) so found, and avoided the election. Thereupon the respondent appealed to the Court of Appeal, and under 38 Vic, c. 3, s. 4, offered further evidence by attidavit, specifically denying any offer or promise, directly or indirectly, of em- plovment. Draper, C. J. A., who tried the petition, having intimated to the Court that had the respondent and his agent made the explicit denial as to oilers of money or employment which it appeared they had intended making, ho would have found for the respondent. Held, under these circumstances, that the finding of the Election Court should be set aside, and that a uew trial should be held before another Judge on the rota. Observations on the difference between an election trial and a tnal at Nisi Prius. The Court recommended the petitioner to withdraw his petition in thiB case ; and on an application for that purpose, another elector having, applied to be substituted as petitioner, 486 PROVINCIAL ELECTIONS. [a.d. in support of them, and Ld recommeXf thf w^^^^^^ T"^ °^*"? '^^''^«"«e- tion and no sufficient additionanrunds hav^rh''^''*'?' °^ "'« P^ti- SX^^^'^--- ^'^ -«" tL^3ditrhVS^ pltL^"^^ ""^'^^"^^ '^^ "«-' «'^-»- of corrupt Mr. Boulthee mid Mr. Evatt for petitioner. Mr. Bethune and Mr. James Fleming for respondent. The evidence showed that the rpqnnnrlor,+ • w.h one M„«„ Ma<>di«.„;trr„t iirnr " Mr r),i.l,„i -J ^ Mullens wife also swore- Mi Chisholm sa,d, it my husband was nut out oF wori- for hini, he would find him employment if he vote! t him, and he was put out ol his winter's wo k hrot, Z means, he would find employment if he voted foHhfr The respondent swore that he did not make mJiiL an'v proinise, or offer him anything; that he told M^ MuS that It was against the law, and that it was iinpoMibte e W for a vote; that he had to take a solemn oath fee m that he had neither paid nor promised to pay anvH ,V ■ rpe'wLtr" "" '-' - -' '°- ^-^^ -s talked of,and^tha\Xr;tt:rsa»h";(r4 e^uri7&d tt^Tht"?^ r ^T swo„ that he did not o«er an; mly fn .nXm rf words or in any shape, or any indueement. ^ by m:2CC"™°' '" ^"•' -^ ™ -"«™'- of?h?L^:sl'jti;itZhf'''"'".' "" '"^ f'" Maddisan me.. L .'.'"'«'' ""> respondent and Martin JUaddigan meet the statements as to money, or promises 1875.] PEEL. 487 was confirmed of money, by a full denial, neither they nor any other witness touch the question of employment, which, as far as I see, is unanswered. This conclusion makes it my duty to determine the election and return of the respond- ent void." The respondent appealed to the Court of Appeal from this decision of the learned Chief Justice, and set out amongst others the following as one of the grounds of appeal: " That the judgment of the said Chief Justice was erroneous in finding that the evidence of Daniel Mullen, Mrs. Mullen, Michael Hugo and Mrs. Hugo, was uncon- tradicted by the evidence of the said respondent; and that on the hearing of the said appeal the respondent will ask that this Honorable Court hear the affidavits of the said respondent, Martiri Maddigan and John Mad- digan, specifically denying the said alleged ofiers or pro- mises." The afiidavits above referred to specifically denied any offer or promise, directly or indirectly, of employment to the voters referred to. Mr. Blake, Q.C. (Attorney-General of Canada), and Mr. Bethtme for respondent. Mr. /lector Cameron, Q.C, and Mr. Beaty, Q.C, for peti- tioner. Richards, C J., in delivering the judgment of the Court, pointed out the difference that existed between an election trial and one at a Nisi Prius Court, showing that in the latter there was every facility for the analysis and comparison of evidence, and the discovery and cor- rection of error ; while at election trials, by reason of the usually large mass of evidence taken, and the fact that such trials were comparatively new, the liability to mis- take by omission or mistake was much greater. Under these circumstances, he thought it would be rather severe if rules applicable to Nisi Prius trials were strictly en- forced at the Election Courts, especially when, perhaps by u J 488 PROVINCIAL ELECTIONS. Justice Draper) had said tli«f if fK , ^ "'^ witne.M^i>„,.-r^^ alleged offers of money or employment which it appeared espCir ?f VvtV^ '^ -^''' ^-« founder was satisfied that the respondent and Maddigan had in tended makintr such dpni'ol k, <. -a ^ , . ^ "'^'^ i"" u , ,. » "°" t'eniaJ, but it not hav nsr been ma.lp evwenoe. Under these eircuraslances, this Court could not would th' f °"" "'■ "" "'•"''""' '^o---' *<> »'»"<"■ Thoy would therefore grant a, new trial, to be held before an other Judge on the ,-„,„. On account of the irk om „eL attening the second trial of the same case by a Jud°^ brou htTf'" """ *; ''™"'»«' "' «- -M-ett pSwetl X" T'™T '" """="-. «.ey deemed i1 "'• -i^e petitioner should seriously consid..,- whether ,t would not be better to withdraw the pet io,^ fori triaTtd'Vr '" '""^^ P"'y- ^'» -* »' • wifiirr^;,ir "'"'""^""'' ^^ "■» ^^-' ^ onheX^,!r„StSar;'^-;r'"T.' the following report thereon to Zs^-ai?- "°"'°"" 1 have the honor to report to you, in accordance with f :i!rw\s^Sbi'::Lrr.;r^^^^ -d be,ng of opinion that the withdrawal wal not L' fS- lA.D. parties might be • •ned Chief Justice ied, and he (Chief spondenfc and the t denial • as to the which it appeared ive found for the her stated that he laddigan had in- aving been made, ispondent on the s Court could not to stand. They held before an- the irksomeness !ase by a Judge, e evidence bein" they deemed it Y another Judge riously consider "aw the petition The costs of the he event of the »e petitioner to the withdrawal 76, transmitted ir : ccordance with 2 Controverted I made by the I Chisholm as 3 to withdraw 19th instant; 1 was not che 1876.J LINCOLN (2). 489 result of any corrupt agreement, or in consideration of the withdrawal of any other petition, I granted the application- " I beg further to report that on the hearing of such Application, one George Sharpe, an elector, applied to be substituted for the petitioner; but as the Court of Appeal had been placed in possession of all the charges, and of the evidence which had been adduced in support of them; and had, with such information before them, considered it a fit case for withdrawal, and had recommended that course to the petitioner, although he had not availed him- self of the permission within the prescribed period; and as no sutiicient additional grounds were in my opinion shown for such substitution, in the exercise of the discretion vested in me by the Act, I declined to allow such substi- tution." (9 Journal Leyis. Astern,, 1875-6, p. 167). LINCOLN (2). Before Mr. Justice Patterson and Mr. Chancellor Blake. VlCE- St. Cathabines, 11th to 13th September; 4th and 5th December, 1876. Toronto, SOth September ; Gth, SSrd and 30th December, 1876 ; 3Ut February, 1879. Nathan Henry Pawling et al, Petitioners, v. John Charles Rykert, Respondent. Waiver of particulars— Amendment— Cumulative artu of briher>/—39 Vic, c. 10 s. 37— Affecting result of election— Bds to chamie votes— Interim certificate to Speaker— Stolen ballots— Costs. The respondent was elected by a majority of 23, and on the trial of an election petition, filed to set aside his election for corrupt practices and illegal votes, evidence was given by both sides on a charge not properly set out in the petitioners' particulars of corrupt practices. At the close of the evidence the respond jnt objected that the charge was not in the particulars, and that it was not verified by the affidavit of the peti- tioners : Held, 1. That the petitioneri might amend their particulars, and that the charges in the petition were wide enough to cover the charge. 2. That as to this charge, the parties had in fact gone into evidence without particulars, and that the petitioners' affidavit verifying the particulars was not necessary. 490 PROVINCIAL ELECTIONS. [a.d. '"^XrnnCilL^^^^^^^^^^^ »*»'-,- the interest of the spondent at the election : ' ""' '"*J°"*y °''t»in«d ^V tho r" //e/(/, inuler 3!) Vic. c 10 a ^7 fK„* i extend bt-yoncl the ,;otes affected thSw 'a, N'rT"''.* ^"'^^'''^' '1''' ""t Where, in addition to the awT ! ^' "^"^ "°* "'"''^ ^^e election the re«pon.p';„*:| o\?e5 wTtrnrberlrvT '"""l"^ ''^-^^ "' porters of N., the opposing candi.late thnpk/f f *f.''' ."^^^ ^^'•'' '^"P- m order to win the l/ets. tL ™8 must 'f« f "l.*''" '"='« *'«"">: tl"t ^rfrf. that these bet.s were for fU ! "'*''" respondent'.- spondent. and wet ZVjraoticPerari tlf"'"« ^"'^^ '^ *'- - other cornipt acts prove.f as Het n,^f „'l It^ '" £?"''ection with the the election , and tLt tt^l^ctio^n^ltt^^et^e Sifi *"^ -"" °^ fyi..g the result of the election t^-ial '"^'^'"^^ *» "^e Speaker, certj: o rendering the procee|[n\SThel^ty^?.^^ -'^ ''"■-* "ti!e'"co&;';-i tteTe\ttfor^^^^^^^ ^^Tr^- - - c.rc„.stances, each party ,n„sr£ hToXS Jf tVe'tZlr ^"^ vofd tl'p'son '^""''•^; ''''• '--"^- been declared declared eleettn;?a!:;t;;;:f^!; "^^ respondent was The petition was thereupon filed, containing the usual Charge that John Jnnkm, the financial agent of the re one Arthur Belcher. The evidence showed that the corniDt practace was an offer to the wife of Belcher to ZZ u ta tW ^ '°'"" *" ""P""*"' ■" «>e manC™ out m the judgment. At the close of the evidence sustord'''tt'' 't' "'""°r"' ~"'"*<' ">»' *" -We^ce ™ta,„ed^the charge, and asked for leave to amend the 1876.] LINCOLN (2). 491 Counsel for the respondent contended that the clmrge relied upon was not in the particulars, and therefoie, as laid, it failed ; and that the evidence did not sustain any charge of a corrupt act. No new particulars could now be allowed, for by the Act of 1876 the particulars must be verified by the oath of the petitioners. The aniciid- raent would be in eft'eut new particulars, and the evidence would have to be given over again. Besides, the evidence of Mrs. Belcher showed that the petitioners had long boen in possession of the facts relied upon. Patterson, J. A. — The amendment is opposed on the grounds, amongst others, that the charges now asked to be added are founded on facts which were stated in the affidavit made by Mrs. Belcher before the petition was filed, and which has been ever since in the hands of the solicitors for the petitioners ; and that the charges ought to have been embodied in the particulars delivered under the order in the cau.se, instead of the illusory statements then made, and which are neither supported by the evidence now given nor by the information which it is sworn was in the solicitors' hands. This is a serious objection, and upon it we should refuse the amendment, as we did yesterday refuse one on the same grounds ; but in this case no objection was made at the close of the petitioners' evidence, but the respondent called evidence, not to rebut the charge in the particulars which the peti- tioners' evidence had not approached, but to rebut the charge of offering inducements to the wife to procure her to persuade her husband to. vote or refrain from voting. The charge has thus been brought before us by both parties; and we think that however strongly we disapprove of the practice of paying so slight regard to the order for particulars as to furnish as particulars a statement based on no grounds warranting the oath now required to accompany the particulars, and to withhold the facts embodied in the affidavit, which, by another most repre- hensible practice, had been taken as a fetter upon the 492 '•"OVINC.AL KLECTION8. conscience of th • i"^'' • •ppi.-e«eio„ ., „„: .:; r j:' - f"™ ^ n.,.., .,„ P'~ I lie parties may ,,o „„ ,„i,u ° " """' "monclcl " mtr '■'•^'*«"« w^p":: "•' '^""™ ^« °' *' should 1» ,„Ven ,„,. ,, "' '" '"= ""■own off or th„f t" *(ii« , " '01- the pavmenf ^p n ^ "^'' "me . -"'^oe a voter to vote or re J, 1 " ^T" ''" """^ to *^<^ ho d that T„„. . ''^"^'n irom vofc ncf. J^e acts doneX ttn^ IT:-^^ *^^ -P-^-^^ questionably sufficient eviSclt' ''" ''"*^«<^ ^^^ "n- thmk this recognition is shotn k i' ? ^'^ "°«'^^^- ^^e ^ r««Ponde„t himself as to7i3 ca ^ ''^^ ^^^^'«"«« of J?« nomination to work for him ?° '" ^"''^ ^^^^"^^ at h'^n; by the fact, which 7. 7 "'^ '""'''^y *« vote for that the whole of what w T''"* ^^""^ ^^e evidence J-kin and others! 1 „dT 1 '''. ^'^^ -« ^^ft ' J"nkin was named by tiie r. ^ ^' «^r«"««tance that -^-t; and Junkin'seLlteSt"' " '^'^ ^^-^^^ that he constantly resorted [A.lJ. ^vo to regard this J what has already •e. '' t'«n 28 of tJ,« Act >w those amended 'at'on, and that if ^'estigated afresh "''*^''- The peti." in their umenciod li-ticuJars if they f'ono as to thew ^^^ given us by =•• c. 3), and by '' as any amend- *'«" 28 of the ^^'■n did offer offering either f. or that time '»* ; and that lec. 1, 31 Vic. deration to a 1 in order to respondent, test are un- '^ey had the gents. We evidence of friends at to vote for ' evidence, ^as left to tance that financial y resorted 187fi.] LINCOLN (2). 4D3 to the respondent's office to meet with tlie other persona who were canvassers like himself, and compare progress, and otherwise promote the election of the respondent The respondent may not have been at any of these meet- ings, or havt> any personal knowledge of the persons who were there ; but his clerks were there, and he had the means of knowledge, and must be held, as the proper inference of fact, to have known of what was taking place. ° Blake, V.-C, concurred. An order was then made appointing the times and places for a scrutiny of votes to be taken before the Re- gistrar (Mr. C. A. Brough) in each nuinicipality of the elec- toral division. Evidence was given that one Dexter Potter was an agent of the respondent, and that on the night preceding the election he made bets with two voters, John Jackson and Abram Hollingsworth, in consequence of which bets they voted for the respondent. After argument, the following judgment was given : PArrEHSON, J. A.— We hold that the agency of Dexter Potter is established, and that, therefore, the charges of bribery by an agent are made out in the cases of Jackson and Hollingsworth; but the effect of these acts of bribery, either by themselves or in connection with the Belcher case, do not extend beyond the votes affected. Evidence was then given of the payment of $150, in sums of S50 each, to Patrick Hennegan, John Y. Cu.sh- man and Thomas Nihan, by one Arthur Aiken, on the 22nd or 23rd February. The money was placed in three separate parcels on a table in the tavern kept by Aiken at St. Catharines, and each of the parties above named took a $50 parcel of the money. One of the witnesses (Hennegan) swore he used the money for election pur- poses. 494 '•HOVrNCIAL ELKCTION8, [a.d. Evidence was also jriven of *i Arthur Aiken of the taxe oAnn ' ^"^'"""' '^^^ ">« ««''i the lOfcl. ami l/th Fel.nmry '"'""*" '"'''' ''^^^e.-n September, on which daT he t ■""'■'■ "" ^''^ '^^f'' clehvered: ^ ''''' """"^'Ug judgment wus Patterson, J A— A ff agency of Aiken is ZZoTTT: ^'^ '"''^^ ^''^^^ tl... «»ffieient (if n,e rebuttedWo ' "' '^''' '^"^ -'''«"«« is allow an a.nendn.ent to ol " ^^'' ""^ ^««« ^ and we that subsection, and no to fl" '^"" '^^''^^"" ^-'^-' --~ofth:tr^:s:;LSx^^^^^ ^--aSi^^^rtr^::^:-^-- House ^n the reassembling of the Court voles. '"» ««8's'rar on the soratiny „f *--"^'^»"-»".Q.C.. objected. J he Court ruled fJmf *u ^ne petitioners then calIprJfl,„f I. • ^r^Awr^a.^, I Tent o,^t ^,^'^'"^^^^"«■^«^«•• the election with Jales Brn T ' ^'^^' P''^^^^"'^ '^ fir«t met him; cannot savTr' ' "'^""*^' '^^^ ^^-^ ^ Rykerfs office ; had 1 n^ ' ''"' ^^^«^« ^ ^'^"^ to him; if I swore' I ml"Bro':;t L'rr ''^ "^^^^■■"»" must have been crazy at thTf ''*'°° P"^P««<-^'^ I election and about Jktg b ts TLr/^''^' ^'^"^ *'- %kert's office. " We must all ^' !" ''''°" ^"« ^^^ at. ^hoitwas; IthinkCkertl '"' ^'^*'" ^on't know a- not positive ; we wfre " iT T ""' '' *'^ ^•^"™«' ^-* were all to do our best at the elec- 1876.] LIN.'OLN (2). 495 tion; think there were fifty people present; have no recollection of scrutineerH heiiij^f appointed ; was at a com- mittee meeting at ( 'aiirH, for St. Jame.s' Ward, a weei< or two before that ; we were lookinj,' over the votern' list. When I met Brownlee on the night hefore election 1 had about Si ,000 in my pocket ; I went out to get men to bet ; I did not know whether the men were Neelon or Rykert nien ; wanted to bet they would vote for Neelon, or for them to bet they would not vote for Rykert; believe Brown- lee got some men to bet that way ; do not recollect how mucli money I gave Brownlet; to bet with; I think Brownlee gave me back all the money except $:\r, ■ the bets were $5 and $10 ; do not recollect how much I bet myself ; expended about SoO oi' ${){) in bets ; have no recollection of saying it was SfiOor $70 ; I sent Brownlee to make bets ; he told me he had made two liots ; 1 asked Dexter Potter if he knew anyone who WM»uld bet that they would vote for Rykert; Potter said, "Come along," and Brownlee and 1 went with him ; I suppose I had six or seven other bets; think one of the bets occurred next morning; they were not all Neelon men I bet with; nearly all of them I thought would vote for Neelon ; I thought a little money at election time would do almost anything, and I think so still ; have great faith in money at election times ; thought the election would be close, and did what I could to change it ; spent $55 altogether in bets ; made other bets with supporters of each party ; bet that Neelon would be elected ; bet on majorities all over the county ; the bet on the morning of the polling day was with David Grant, a colored voter; went to Jacob Moore's place on polling day with Dexter Potter, and ottered to bet with him ; do not know if Moore had any money ; Moore said he did not want to bet ; had nearly $1,000 in my pocket, the balance of what I had the night before ; first talked of these bets with Brownlee on the night previous to the election ; no one suggested the idea of making these bets ; think I met Brownlee at Rykert's office ; did not consult anyone beside Brownlee 496 PROVINCIAL ELECTIONS. [a.d. and Potter; thought I was getting round the law huf •. seems I was not; lost all of the bets bu on. t account of them in any book • only nut fh . "^' ''' this betting account into the dealings ;ith h m L have discussed these bets with hin, • hi ' ^^ bets to me; he told me I was I'.; ^^^^ he would accept the bet when I made it • think h. ^ he would see Potter again. ' ^^ '^'^ Cross-examined: I am not an agent of Mr RvkerfcV .-as ,n his office on the night before the elecSon d j not receive any instructions from Rykert • mos of' H bets were sporting bets ' ""^ *^'^ dor:^:thi;;r::^^L^^-t"^-^-on; St James- Ward; looked overtZ ^Trf H^rn ^^ Cams house to see who were voters; there may have been a dozen people present; the names of two^ruT neers were agreed on; Brownlee and Aiken lllT about several voters; mentioned the tmes ^f Vir Parker, John Jackson. Hollingsworth, and the to Tyrrells ; cannot remember how many I spoke of; Coll I' name was mentioned later in the evening; do not th "k Moore s name was mentioned; might have spoken a^ David Grant ; think I was out with Brownlee and likt about two hours; I bet that the voter would vofe for Neelon; think Aikens suggested the bets; myttW s opped at my house, and asked me to go up to Ca nl place; I went there expecting to meet other' and ' etction"" '"°° ''''' "^'^^ '""^'^ ^"^ P-P-- ofZ Counsel for the petitioners contended that, in any event attending the respondent's committee meetings, or from d the law, but it but one ; kept no them down on a id large financial ig a farthing of with him; may lever mentioned ish ; have made :pended in bets J 3c]on's; thought ; think he said ' Mr. Rykert's ; e election ; did k; most of the •t last election . ttee rooms for i' list when at ere may have of two scruti- :en asked me Qes of Wise^ nd the two ^eof; Collins' do not think spoken about 56 and Aiken uld vote for ; my father up to Cain's er3 and hear )oses of the n any event, er from his igs, or from 1876.] LINCOLN (2). 497 Potter, who had been held to be respondenf.s agent, re- questing him tc canvass with him the night before' the election ; that the respondent's majority was 23 ; that the bets proved were with voters who had intended votin>r for Neelon, and the effect of their voting for the respond'"- ent was to " count two on a division." Under s. 37 of tlie Act of 1876, these acts, in connection with the ille-al practices already adjudicated upon, have affected the elec- tion : ffackney case (31 L. T. N. S., 69 ; s. c, 2 O'M. & H. 81.) Counsel for the respondent contended that the agency of Aiken had not been established, and that the^'peti- tioners had failed to bring the ca.se within the operation of s. 37 ; that to do ,so they must .show that the corrupt practices and illegal acts have had a material effect on the election. Blake, V.-C, referring to the majority of 23, by which the respondent was declared the member for the county, said the question was— would the result have been that had not these corrupt practices been adopted ? He re- ferred to the advance of $150 by Aiken to Cushman and others, and to its having been admitted that that money effected the very object the person advancing the money had in view, and it was but reasonable to suppose it more or less affected the result of the election. Then again, this same gentleman advances money to persons to pay their income taxes, which payment gave them a vote, and it is a reasonable conclusion that tlie election was more or less affected by these nine voters whose income tax was paid. Then there are these three men going out and pursuing a system of betting for the purpose of getting votes, and it is out of all question to say that this did not affect the election. Aiken says he thought by doing so he would get outside of the law, for he knew he could not openly bribe any voter : that is the system of betting which was pursued on the night previous to the election, and again on the morning of the election. He goes to bet with a person more for the purpose of inducing him not to vote the way if 498 PROVINCIAL ELECTIONS. [a.d. the other intended. Had these corrupt practices not pre vaded there is no doubt the result of the' election, instead o being xn favor of the respondent, would have teen h other way; and under the 37th section of the Act it K impossible to say that the seat can be held by respondent He did not express any opinion on the point as to Aiken being an agent of the respondent, although he stron.K- believed he was such agent. "^ Patterson, J. A., agreed with the conclusion arrived at by his learned brother. It was shown that there had been a considerable expenditure of money, and that Aiken actively, and tor considerable time before the pollin-dav was endeavoring by the expenditure of monev to in/uence' the election, and that two corrupt practices" already ad- judicated upon were committed by agents of the respond- ent, with his money and in concert with Aiken It i. impossible to say that t^e corrupt acts were of such triflin. nature or extent, that the result cannot be reasonabh" supposed to have been affected by those acts and illegal practices. We therefore declare the election void It'is not necessary to hold that Aiken was an agent, but I am strongly oi opinion that his agency is established. The Court then adjourned to 23rd December, to allow the scrutiny of votes to proceed. On the reassembling of the Court on that day, ^ Mr Madcnnan moved to have the statutory certificate sent to the Speaker, showing that the election of the respondent had been declared void. He also asked that the Court declare that sec. 31 of the Election Act of 1876 which prohibits the trial of an election petition durin. the session of the Legislative Assembly, did not apply to prevent the .scrutiny of votes proceeding in this case. Mr Cameron, for the respondent, declined to consent to the trial proceeding during the session The Court declined to grant the interim certificate It \7:^' ^ '*^*"*' contemplated only one certificate; and held that the prohibition in the Act applied to prevent thescrutmyproceeding duringthe session of the legislature 1876.J LINCOLN (2). 499 Alter the close of the then session of the Legislature the scrutiny of votes proceeded before the Registrar A case aftecting the revision of the voters' lists bv the County Judge of Lincoln was stated by the Registrar and reserved for the decision of the Judges under 36 Vic, c. 3 s. 34. (See re Lincoln Election, Borrowman'scasc, 2 App R 316.) The judgments ih appeal from the Registrar are reported jnost, p. 500. During the proceedings before the Registrar, certain ballot papers, etc., required to identify a number of votes which had been declared bad, were stolen from the Court* Both parties thereupon made admissions before the Registrar as to how the voters whose ballots had been stolen had voted, which admissions the respondent after- wards sought to withdraw. A special case was then settled by the election Judfreg for the opinion of the Court of Appeal : re Lincoln Election Petitmn, 4 App. R. 206. The Court held the admissions were not binding, and that no evidence could be given to show how the voters had voted. The proceedings were then terminated by an application to the election Judoes to certify the result of the trial to the Speaker, and'to dispose of the costs. After argument, the judgment as to costs was given by Patterson, J. A.-I think that there are abundantly sufficient reasons for not giving either party the costs of the scrutiny ; but the respondent should pay the costs up to the time when his seat was declared void. The certificate to the Speaker, after setting out the pro- ceedings and the result of the election trial, set forth the following special report : "And the .said Judges further specially report that while the scrutiny was proceeding before the Registrar at the Court-house in the city of St. Catharines, some of the papers which had been procured from the custody of the Cler k of the Cro wn in Chancery for the purpose of the wmK^'fl,'; o„l':?io^S:iS;i^^^?mH!" """''^^ *•"• """' «"*'"' ^»^ 500 PROVINCIAL ELECTIONS. fA.D. (12 Journal LcgU. Assem.. 1879, p. 209.) LINCOLN (2). scrutiny op votes. Before Mr. Justice Patterson Toronto, mh November. 1877. to 31st July ms N.THAN HENRV Paw.NO. P.. W. v. ^^hTcharlks ^'^Km-t, Respondent. -tendered Balht.-ParoLrclST^ •^''^'°"'~^'''"'''^ ^'o'^'s By the 3rd sec. of 39 Vic o^n in u- , ■ ^ec of the Election Law of 1868 f„v'i,'^ substituted for the 66th that capacity for the time X tTfn "''""P"™.'. "'• P^'^ons acting „ polling Jay and within t.hehou,5 of noil?, ^'''' ^T"' «* taverns^^ tjces ; but persons who tveTZJj,?' f« RU-'ty of corrupt L? affected by the statute." UaVl ZdX^S "' "^^ **-- - ntt Bt:;:at"a^^^ by certain vote« country, and aUo evidence thaf.fl .t^ ^*^" ^'^^ '" * foreign ^«J«<«. of alienage, (y^^oft A7,E "L , '=°"*'""'""^« of the original "I'lfc bat mtbin the' ™,. c™"^T "^'"'"'"""l t« th.i,, n aZlt [a.d ounterfoils, and burt-house, and 1 of the loss of udges to deter- id lawful votes 879, p. 209.) N. , 1878. HN Charles s— Income Voters ;ecl for the 66th )erson8 acting in at taverns on of corrupt p.ac- taverns are not ' certain voters, rn in a foreign sion the voters to the voter's tion : i testimony, not iect by birth or i certain facts. iion sufficiently of the original I'as bom in the "1. and that it tea of British re a Justice of >eir. n a town- 1876.] LINCOLN (2). 5QI ^eW that under the Alien Act, 34 Vic, cap. 22, sec. 2, Can., the Justice of the Peace, m administering the oaths: was acting ministSlvm.H ^oUirir"' * ''^ "''*'' "^^ ^'^"'^ adf„ir^tr"^£ A voter whose qualification is successfully attacked may show a ri^ht tn vote on income ; but in such case he must prove that he his co nolied with all the requirements of the Act which are essentll to m.ali y S to vote on income. (Janu^ B. Gray's vote. ) ' ^ "'" A voter was assessed in two wards of a town • he nartoH witi, i.;„ ,,- _i qualification in one of the wards, but voted inCc^w^rd':""" ^^^""^ Held, tha,t the vote might be supported on the qualification in the othn.- ward which If the voter had voted on it, would have made it neces Zl!"" ^°*' *""*''''■ p°"'"« '^'^''^'•'"- < w'''^'«« ^- gS.; A person assessed for land he does not own, tlnugli receiving rent for it from a tenant, is not qualified to vote, (john QlarkU Ze^) ''ired^tllf Ser :° ^"^^ '' " P°"' '"' ^'^ "°* '^^'^ ^^ ^ P»* '" ^ HeU, that the Ballot Act required the vote to be civen secretlv an.l tl,»f the parol declaration of tl7e voter as to his vote^could nof fc rece Jed in order to add it to the poll. (George Secant's vote.) The scrutiny of votes referred to on pp. 493, 499, having taken place before the Registrar, appeals from his decisions were heard by consent before Mr. Justice Patterson. Mr. Hodgim, Q.C., for petitioner. Mr. Be'Jmm, Q. C, and the llcspondent in pernon, for the respondent. JAMES ford's vote. {Liquor cases.) A number of voters who had given or partaken of liquor at taverns during polling hours on the polling day were held disqualified for corrupt practice,s. The follow- ing judgment was given on the appeals affecting this class of voters : Patterson, J. A.— Some of the ca' -" in these appeals raise the question of the construction or section 3 of the Act :^9 Vic, c. 10, which reads thus : " No spirituous or fermented liquor, or strong drink, shall be sold or given at any hotel, tavern, shop, or other place, within the limits of a polling district, dui-ing the polling day therein or any part thereof, under a penalty of $100 for every offence ; and the offender shall be sub- ject to imprisonment, not exceeding six months, at the discretion of the Judge or Court, in default of payment 502 PROVINCIAL ELECTIONS. [An. c Ws "'" "'^^' "^ ^'^^'"^^ *« ^« -*-*ed are of three 1. Those of tavern-keepers who sold or gave the linuor 2. Those of persons who treated at taverns ^ ' ^ Ihose of persons who were treated. ho™ appointed W pot^t It ^p^r °« '^' The Act of 1875, 36 Vic can 9« q ^ »'"ce. of the 66* sec«„„ „f tie' ZLl wl^ Ss™,'"'"" the hour, of polling, a eorrup, fra,^iJZf~!ltZ''''' IS substituted for section 6ft ^nepresentsection stiJuM " • '■'""°""'''« S™"* for reading the word "sul, Btituted, many narrow sense. The new wl™- •mleria with the former one If m. 7 '" ""•' in whieh the offenj^f LT' ^ ™™'' "■" '»""« day i, prohibi !r It retataTthl *' ' ''"T "" '""■"''' adds n,Le stringent'^a^ "o/ f:r„rr'^; T'" " rt'That'r '°°- •"=• '"" "■»«" ^-i taZ: tive as that f„ ) ^''V'<^<"'>n used is at least as eHec atSchto*tt trinrLiTofT' r" '■'"' ^-» '» consequence, It XT u' 1 the W "" '^" "" ">» original law. In other wori! I thi,^k r™'",' "' ""' be substituted in the reading o' he LTof W °" """n as in reading the provisions f«r l ■ ' " """ order at e Jtions, L«3 in JhelTff S •"" ^^^ thelrufMrfi^ith"::?""' *"r -- ■ •"" ^ -^ been done with co „pt inttt"''""'^^"^™"'' '" '"- into .^e. 3, whichl;:l h n„ •onnT^^r' '" "">»" of corrupt p„ctioe JeriC'Z: th"t Xf 1r -an^cla-fo^nTiltT-Ltl'l-SX^ 1876.] LINCOLN (2). 503 and makes amendments more or less isolated in their character. There is, therefore, no sound rule whicnnak s J necessary to construe any pari cular amendn,en y th" light of an association which we may discover here bul lhl\T J '^^''^' '^ ^'''''"^'- But it happens that these three sections are classed in the amendin^Ic under the head of corrupt practices-a circumlnee whjch. as shown by the present Chief Justice of App a m his judgment in the Soutk Ontario cose (12 Can T J 223, s c, ante, p. 455), may be taken into account in determmmg the immediate and special object the LeU ature had m view; and which, in the present case f ainly does not dissociate the clause in question from th" S ther"''-rf "^' ^'^^"•"" -'^--^h^^ - - n- plation of the Legislature that, in the application of it an It is, therefore, in my opinion, clear that every tavern- keeper or person acting in that capacity for the Ihne who s Id or gave liquors at the tavern within the h ur^ of polling, committed a corrupt practice. 1 hen as to persons who were not tavern-keepers. I have no hesitation in holding that it is the selling or .ivL ' only and not the receiving, which is, prohibited under ^e penalties attaching to the violation of this law The words are plain and unambiguous, and cannot be extended nrtto;T"".t T"-P--'^yi-Pon.A.o^..J and the offender is the person who .ells or gives. In this respect, the statute differs from the EnglisirAct, 17 & 18 ^ ic cap. 102 sec. 4, which makes accepting or taking an ottence as well as giving, ° In considering wheth'er the man who treats another is one who gives within the meaning of the section, it will be useful o refer to the old sec. 66. It provided that every jiotel, tavern and shop, in which snirituous or fer- mented hquors or drink3 are ordinarily sold, shall be closed .'504 PROVINCIAL ELECTIONS. [a.d. or fermented li.uo. o/^Hnr^ bo^H^r^rr any person within the li.„its of such n.uniciX uH"' he s,.apeno under a penalty of $100 in every"2 case. This section Ud been the subject of several iu J nients m contested election cases ^ ^' In the Sonth E,^,cv cast (11 Can. L. J., 247 • mKe n 2T-,^ the Chance lor avoided the election for a co^t pmc i partiapated in by an agen. :, the candidate by rec't^ wast .1; ) *''", ■ ''''' ''■• ' ''' been followed ; and of Z al iftte^n; '^-^"^ ''^'"'"^"* '' ^he Court oi Appeal in the South V^(„H^ case (ante. p. 420) In th<. us roachmg the ca» of a p,iv„te pe,.,on who StTn h. "se of all comer,; and m the SoM O.l.rio e,se. Drape,. C. J A. ,aKlc. p. 439). did „„t take exactly the sameT, - of the section as the other members of he olt h It prowLS'the' "'.^"i*'' «"-«-« Act was paesed. £prit'httt'-H^it%fa7ntrdS M conhned to places ejuedem generis. In this nartienk,. »e place 01 selling or giving was concerned. gi w:^T:7ier pir rp::t:ri °=°^'"''-'""^ « ^ uiei piace. It probably was considered 1876.] LINCOLN (2). 505 sufficient for the purposes of this enactment, and with the Siot IT"'' p^"^ ^"^' ^"°^ '^^"-' - ^ ^-itt wouTd .nn H T ^'"''"^ ""^''' "">' °^^^^'' Circumstances would apparently be in one of two positions. Ho woul" either do the act in perfect innocence, as in the case o giving a glass of beer or of wine to a friend inTn" a his table; or he would do it. as in the suggested cls'e o broadung a ca.k for all comers, or even fn th 12 o carrymg a bottle in order to treat an occasional tiplr in a way that would probably amount.to bribery ^^ ' The object of the enactment seems to be the same as in the former case, while it is so framed as to avoid the S ffi cul les that attended the attempt to construe th ar ^ clau e. The leading idea is that liquors kept for sale 7i hotels, taverns, shops, or other plLes where Hquo i usual y sold, shall not be dispensed on polling da Te th hvtVJ "^J^^.^= .^"^ >* «^»"«t be disobeyed, except by the act or permission of the person in whose control the hquors are That person is the offender, if the law i disobeyed. If he obeys the law and sees that none of h rdlTn '^ 'T: '^ ?" '^"^ ^'^' '^^ ^'^^^^^^^ pa t that T . " '"'^'^'''' ' "'^'^^-'^ °f 'fc - hi« part that a .second giving, such as occurs when one man treats ano her. can take place. I do not think such a second giving is aimed at by this statute, which attache! IdortMt P"^«^--"-- accepting, or drinking s"p ratToff " °^^rr"°* ^"^ J"^^* ««•--• but two separate offences-out of what is in reality but the one act. Giving is, m my opinion, prohibited to prevent an evasion of the prohibition to sell, and, like its comranion word, points to the vendor only. ^ If intended to have a more general application we ahou d not find it limited in its operation to^he Tils of the tavern or counter of the drinking booth, or other tZ Vl^fr' "^"°''' " '' '^ ^" *^- «J-"-; and we should find, what is here wanting, a penalty attached to accepting or drinking. 506 PROVINCIAL ELECTIONS. [a. I). faulty rule of consfcrnoHnn i ' * "^""'^^ '^^^'n » obeying thu law l.v parting „ifl, 1 '•'''■■"'■l=e«P»r di.,. no,«„aH,"rarur:;:ss-2:r';y'-' been .somewhat „,„,. elearlj- expres^r T e ™K „r case in wl„eh it can be su.r.rested tliat »,„, . \ &».. is the act intondt J irih. ""'/ ' "' " '"'''"■". liquc- from elsewhere ti' the ta™^ :„r°"' '"•'"«'"8 This is t«, remote a pos^ibil tv!o , ' "'"^ " '"^• bare mention, and no gS^ r 1,1 ' b " ■""'! '!"" ' a giving of that nature shou IdTot Ta, off.T't' "'■' committed, as well as when comm ttedt ! °""" where liquor is ordin»rily"oTd" ' ° '"™''" "' ''''" -.^bnt that the /.enrttfrilr-li't-^ MCOB SBE»CK'S VOTE. (Ali,n ca^s.) Che:r ntivtt "'"^ ""■"""'- "- --^ rernonrlpnf 1 , "" "^'"^ **''' ^^me question of law. The Taritrn z: zt^:^]^^---^ °' ^ years before the election TJ T' T' """' ""ny foreign country. A™"; thi ^i"""? "^^ '"'™ '" ' given on behalf of t?! .■! "xln-'SMon evidence wa, admia,i„„,t"'ot W^trr;.*"'™"^ *» ^"^ "' ■nentaiy ActioTaL k J?f ' '?" "^ ° 'o™"' P"'':'- containL a d iait tht " *" ™'"' '»*•"'""'> Majesty by birttri iSttt™ he R^t °' "" sidered that the oath ri;«nl! ^.u Registrar con- held the vote good ^ *'' ^""^ "'"^^««-"' -"^ 1870.] LINCOLN (2). 507 Mr. Ikthune, contended that the admission wp,s primd facie evidence against the voter, and tliat it was incorrect to allow the oath, as that was sliowiny, in answer to an admission, that the party had at another time assorted the contrary : Tippernr], case {:i O'M. & H. 34) ; Tu>/lor on Evidence, h. " v* •■•J no opportoit^ !" • ""'■ """ "" "'l™™ litigant -m.,e„ that he°;:'i:;;,r, rrs' i' ;r "^ not naturalized iia, been mv.„ tk / , "' '"' "■« >^-..,e„t fail,, heoauITh dM not™: tf" '"' «'" ralized. He said h« woo , • ^^-^ "^ ^^''« "atu- - he »id he r a^ti ;::':: iSt"s^ "-'r ™"^ fact, influenced it olw™""' '"" *' '"" ''"'"'' «""" whether he tho„girh:c.";"4r;Vrt,r "" 'r- by naturalization '' ^ ""' ""^ * ^"bject «,'vLTi„t:Thr,''" "'!; '-" "^ '■«' - subject, he „, Jd ,S :„ i "■ ™'='' " » »«»"-teed I«7<).J LINCOLN (2). SOD n naturalized »'n a subjoct, tlmt he waa m Would bo ized .sul)jcct raises a presumption of naturalization suffi- ciently strong to rebut the presumption of the continuance of his original stafm, except an American case. People v. Pm^e (27 N. Y. 45); but that case, even if satisfactory in its reasoning, was distinguished from those before us by the circumstances that the presumption was there acted on in favor of innocence in a proceeding against the individual whoso conduct was in question. The well-known rule which, ns applied to plea"=""P«"" at least be product vlnf 1 """"""""g »-> injn»tiee, prevent this, it h« L* "STr/ *"''^- '" ""^ '" evidence that the 1X7^^,1^:!:^' ™'^°' wishes to snpnort hi, ™„ k ■ ™ frson who more peenliarC with n ht '' " r"™'" '«' ^''•'^^ '■"» heiss'npposed-rwlar ''"''*<'»-•» «' which ■-it;T„tti; Is**" ;' •»- -, I finishing to tl/alie„"he plr:, "h' "'?"',"« ""^ and for tjie reception „f rt.f « , " "''"rah-zation, 'o he estabiishTdt evS Lr ratTt*" '"'.'"^ the evid;nty:redrr rinh™*,"'"" '" P"^"™ -tu,»,i.ed b;a„y:«S^'p"eet t^*™'".'""'^''''" pnvate Act of the Imn«ri.l p i ' '°»'ance, as a ™|^/ ha ,uotedt^™itt^r:;^=-'*'" o^ 'he -he statute of 1871, 34 Vic c 22 r«n ,• tration of what the effect of ^iddL t"' 'r'^^'? ^^ ^""- support of these votes would brZ K ^^",'7*«»'^«'^ '» •who had taken the oatlvl /. ^' ^^^'^^ «*' Persons of aliens by We, Acts hTH'l *'' "-totalization ficates which those 1 .k "^ ""'^ P'"''^"''^^ *he certi- such persons so^d be elS^^^^^^ it. was enacted that born British su^s it t b ''P"'"^="^ ''^ "^'ural certificate from thef L? ° T P^^"^" *« Pr««"re a that everv affidavit taken ''' u '"' '"' '' ^^'^ ^"^^^^^ with the Clefk o7 t t^^^^^^^ ^^^/^-^d be filed -andtheg-S^^Sriirrri^: 1876.] LIKCOLN (2). 511 farther provides for a certiScate from the Clerk of .1,. Pe^, wh.ch should ^,H^^^ evidenee of tt^i, *! «.^:r4r«rzi:trrs:r"^'f"'.'° o™l evidenee that the oaths h.dZ„ Lta un" ""'™ We may infer from the passing of the Act of l«7i If we did not know it otherwise tha/1 ' """"^ tl;e oaths but did not com;,lTheXr:Zs!::;t th-' little the facTofl:^erlrt: Xsl natutr^r ,'^^ and how appropriate the rule is which I hold fl ? ' here, and which requires the producMon of 1 1 7^ ^ provided bv law for fV,^ P'ouuction ot the evidence on sn.r^ ''^ P"''?^^*^ «f being produced on such an occasion as this. F'^uucea I am of opinion that the obieetion fn +i,« • on theground of alienage rJXtZl^ ""^ ^"^^^^ JAMES MULRENNAN'S VOTE. '{Alien case.) In this case the voter was called, and proved r^nf I, Pledge oTI^tf ;SSt,'pte: r Th^f'" '^" held that the statement of the pa^r'. '^'"','^?'f"»' of the voter's ali.n.„. """«/'>«">« »« good evidence disallowed aetr'""' °' ** -«»-lity. and -y, but as hlJotn al" l™ "1 T""' "" "^ ''*- w..™inthe.niteas::rB:itr;tnrtti ^^"""^■■■■■■■■■■i 512 PROVINCIAL ELECTIONS. [A.D. JOHN JOHNSON'S VOTE. {Alien cases.) The objections to this vote, and two others, are set out in the judgment. Patterson, J. A.-The votes of John Johnson, and of Lewis Tyrell and Nelson Tyrell, were objected to on the ground that they, liaving been aliens, had not been pro- perly naturalized, because the oaths required by the Act of 1871 (34 Vic, c. 22, s. 2, Can.) had been administered to them by a Justice of the Peace for the town of St. Catha- rines, appointed under commission for the town only, and not for the county, and had been administered to them in one of the townships and not within the limits of the town. I think the Justice had authority to administer the oaths. The statute requii-es the oaths to be taken before some Justice of the Peace or other person authorized to administer oaths under the Alien Act of 1868 (31 Vic, c 66 Can.) The persons designated by that Act are a Judge of any Court of Record in that Province of Canada in which the alien resides; or any person authorized to administer oaths in any of the Courts thereinafter mentioned ; or any Commissioner to be appointed by the Government for that purpose; or any Justice of the Peace of the county or district within which the alien resides. The courts named include, in Ontario, the Court of General Sessions of the Peace, or the Recorder's Court of the county or city within the jurisdiction of which the alien resides. This Act was passed on the 22nd of May, 1868. On the 4th of March of the same year, the Legislature of Ontario had pa.ssed an Act (31 Vic, c 18) authorizing the Lieutenant-Governor to appoint Justices of the Peac°e for every city, town and county in Ontario. The question is whether a Justice of the Peace appointed for the town of St. Catharines, under the Ontario Act. was a Justice of the county of Lincoln within the meaning of the Dominion Act I think he was. He was not charged by the Act of 1871 or 1868, with any judicial duty, or any duty which had any i 1876.] LINCOLN (2). 513 necessary reference to the authority exercised, under the ommrssion, within the territorial limits to wLich x! tended. He was «^nply a person designated to dLwo a certain mn„..,eriai . uty. The Dominion statute addS a function or power to those he already possessed as^t dKi ,n the case of Judges of Courts of L'coTanV h officers ot Quarter Sessions and Recorders' Courts There IS no reason which I can perceive for reading a Justice / he county as if it were a Justice/., the county, w ch t he expression ordinarily used wheu territorial jurdi Act ot 1873. The description "Justice of the Peace of the county," IS sufficiently d<.scriptive of a Justice who is no a Justice/., the wl.:. . .unty, but only for a part o i r ^ ^ St. Cath.,.nos could not have effectually taken the oath before a Justice for the town. And yet that would be the effect of our holding the present oaths ^ have been administered without authority. No such TtrerTheT-T*^"''' 'r ^" *^^ ^'-^"--^ oi this mattei. The objection urged was that the Justice could only act within the town; but the statute gives him no nght to act within the town unless he is a Justice of the county I have no doubt that in furthferance of the object of the Act of 1871, which was to enable aliens to pu on record, m the solemn form of an oath, their purpose of transferring their allegiance to the British Crown-but which gave no effect to the oath until a further act was done by f.ling it of record in the designated office-it is our duty to pve as liberal a construction to the statute as Its language will fairiy bear : and not to hold, without necessity, that the steps taken in good faith, and in literal compliance with the law. are nugatory merely because the expression "«/ the county" is capable of being read as meaning "/or the county ;" and where the functbn in question is not one of tho.se belonging to the officer as a Justice, but one belonging to the individual designated as persona: dcsujnatce for a particular purpose i tss^m wmmr 514 PROVINCIAL ELECTIONS. [A.D. I therefore hold that these persons are entitled to vote as i,u,turalized subjects. JAMES B. gray's VOTE. The voter was assessed for property sufficient to qualify him to vote, and also for an income of $400. His name appeared on the voters' list as a voter in respect of property, and he so voted. Evidence was given to show that he had parted with the assessed property prior to the revision of the assessment roll ; and the vote was then sought to be sustained as a vote in respect of income. The voter, at the time of voting, did not produce to the Deputy Returning Officer a receipt for taxes, as required by sub-sec. 2 of s. 6 of 39 Vic, c 10, although he stated he had it with him at the time of voting. Patterson, J. A.— I hold that the voter appearing on the voters' list and on the poll-book for property only, and that qualification having been successfully attacked,' the petitioner has a right to show that the voter had a good right to vote on income ; and that the fact of the voter being assessed for $400 income, does not throw the onus on the other side to show that he had no right to vote on income, because the income qualification includes the payment of taxes before 31st December of the previous year, under 39 Vic , c. 10, s. 5, and in this particular case, the production of the receipt, under s. 6, sub-sec. 2. The evidence shows that he produced no receipt to the Deputy Rsiturning Officer, and I hold that there is no presumption that he had an income qualification, so as to require a specific objection to that kind of qualification. Vote held bad. WILLIAM T. GIBSON'S VOTE. The voter was assessed in St. Paul's ward and St. George's ward, in the town of St. Catharines, for property sufficient to qualify him to vote in either ward ; but prior to the revision of the asse.ssment roll, he parted with his property in St. Paul's ward. At the election he voted in St. Paul's ward and not in St. George's ward, in which he was then owner of the assessed property. '% 187(i.] MNCOLK (2). PAmilsoN J A.-U has already been hehl that tl... «.sten,s,ble t and paid hun rent for the same, the voter not personallv occupying the property. He was a,s,se.ssed as owner, and his tenant as occupant. Patterson, J. A-The vote of John Clark is objected to on the ground that he is neither owner, tenant nor oc- cupant ot the land on which he qualifies. It is a small piece of land which belongs to the Crown. .John Clark and hi.s brother James acquired the right to the possession of lr"i """T P"*^!^'^'^«^' «'J''> «««veyed it by deed to but o ,1 'T'"'t '" *''"* '^"'"^ ^^«"^'^* J^"'-^' right Imt no release rom James appeai-s to have been execuLl. 1 he va ue would not entitle two to vote : but it is .shown that John occupied the land exclusively of James, an.l for •some years past had iet it to a tenant, who pays him rent, and that he has not been personally occupying. By • - Vie., c. 21, s. :,,th(- voter must be actually and bond M, the owner, tenant or occupant of real property, and must be entered on the a,s.se,ssment roll as the owner, tenant or occupier. " Occupant" is dehned as signifying a person '.«»>«?. occupying property otherwise. than as owner or tenant, either in his own right or the right o^' his wife I'ut being in possession of such property, and enjoying the' revenues and profits arising therefrom to his" own „s,. Olf) PROVINCIAL ELECTIONS. [a.d. By the assessment law, .S2 Vic., c. 36, which received the royal assent on the same day as the Election Act the assessor was (s. 21) to state whether the party assessed was a householder, freeholder or tenant, by affixing the letter F.. H. or T. ; and (s. 26) when the land was assessed againsD both the owner and occupant, or owner and tenant, the assessor was to place both names within brackets on the roll, and write opposite the name of the owner the letter ¥., and opposite the name of the occupant or tenant the letter H. or T. The Legislature thus defines owner as meaning f.eeholder ; and occupant and houficholder are made convertible terms ; and the distinction between a tenant and an (occupant, whatever that distinction may be, is preserved. The force of these two definitions of occupant clearly excludes this voter. He is not the house- holder ; he does not actually occupy the land, and he does not enjoy the revenues and profits c. it, but on'- that por- tion of them which his tenant pays him as rc.it, the tenant enjoying the residue. Being neither freeholder, tenant nor occupant, he cannot vote. GEORGE SECORD's VOTE. The facts of this case are set out in the judgment. Patterson, J. A.-In George Secord's case there is a conflict of evidence between the voter and the Deputy Returning Officer, as to what took place at f;he poll, when the voter was required to take the statutory oath. The voter's account of the matter is, in substance, that he was questioned as to whether he still lived in Grantham, and that he said he did not, but that he lived in the electoral ilivision, and he was required to take the oath ; where- upon the Deputy Returning Officer read the oath to him, making it read that he was still a resident of the towmhip of Grantham instead of this electoral division ; that the voter refused to take this oath, but offered to swear he was a resident of the electoral division, which the Deputy Returning Officer would not permit; and the voter therefore left the polling booth without having re- 1876.] LINCOLN (2). 517 ceived a ballot papt-r. The petitioners contend that the vote ought to be counted for Neelon, because the voter ought to have been allowed to take the oath and to t-Ie ■ I 7'^^ ^^tnvuing Officer contradicts the voter and says ho read the oath Just as given in the «^tute. and. in fact, entered the voter's "nan.e as o^ ^^iag„ra ; b,it that he did not read to the voter the latter part ot the oath, as to his being a subject, and the parts tollowing that. The Registrar took th; vi w of the fac presented by the voter's evidence. On this question of tact. I do not see sufficient grounds for disturbing that demzon, although on u.erely readin,, the evidencc^w th- ou t seeing the witno,s.ses, it may ,:ot be that which would at hrst .suggest itself. I have been referred to a .lecision of Wilson, J., in the f:^'' P"''''". -- (II ''an. L. J., 162). in which he Z piessed an opmion that .some voters, whose names had been ouutted f,on. the voters' list, but who were dul assessed and entitled to vote, and who had presented them selves tor the purpose of voting, and declared their inten- tion ot votnig tor a particular candidate, but had been refused the right by the Deputy Returning Officer, ought o be counted as having voted for that candidate. The ment H ^T"]'" ^"""f' '"^'^'' "" ^^^'^^ *"•«•" ^^^^ Judg- ment that the learned Judge was right in refu.sing to stt itiicat Tr '" ■''''''' *'^ '"^" *^' ^•"*«' -^- '^^- ^the f o H ' T""'^' ^^*'^""* *^^"' ' ^"^ I do not gathei from the judgment of the Chief Justice (37 V. C R.. 234 that the view of Wilson, J., as to counting votes! net with approval. It would seem difficult to reconcile tnat opmion with the principle of voting by ballot • but to vote for the petitioner was not declared at the time would be to extend it ,so far as to leave the principle out ot sight. I have already had occasion, during this scru- tiny, to refer to the rule .stated by Lord Coleridge, in Math^ V. Lrcvr^ (1 C. P. D., .596). and which commenx. A.'isem., 1879, p, 20M.) V t 1«79.] HdHSEM. (2). PRO VINCI An KLK(yvl(iS8, 1S7!». 510 KUSSELL (2). HkkokkOhikk Justice Moss and Mr. Vice-C^hancki.i.ok Blake. C)ri'AW.\, ,;//( Dn-cmhei; IH7'-I. Ai>AM .J. Baker, Petitioner, v. Ira Moroan, R,',,pondent marks on the back than the initials of tt Ueputv Ctnrniir^ ()Cp« were rejected by the County Ju.lge. thereby Sfrmaiorftv to tf^.' respondent. Evidence was'given'^on the hearfig of thTitt^o.^tfi in?H?h'^^'*r"'"^ Officers hanmd facie ca.se advanced l>y the petitioner. The general objection is couched in the form that the Iwllota have been so marked as to constitute a violation of the principle of the Ballot Act (R. S. O., c. 10), which, it has been correctly .said, is the 'securing of secrecy and the non-identification of the voter ; but, in working out this principle, we are obliged to look at the precise machinery which the Act has devised and employed. We can only gather the nature of that machinery from the words which the Legi.ilature has cho,sen to use. Turning, then, to the «Oth section, on which reliance is placed on behalf of the petitioner, we Hud it contended that there has been a viola- tion of the principle of secrecy, which that section was designed to .serve. That section, in effect, requires the Deputy Returning Officer to prefix to the names on the voters' list numbers. Those numbers, it appears in the pre- sent case, I think in the tnree polling sub-divisions now in question, were consecutive. I see nothing in the section to actually prohibit such a mode of numbering the names by the Deputy Returning Officer, but it might not be out of place here to remark that it is highly inexpedient for such a cour.se to be adopted. Although the lavirhas not prohibited it, and although the law doe.ii not intend that the election should be avoided simply because the Deputy Returning Offic€fr has chosen to mark the names upon the votei-s' lists with consecutive numbers, it is quite obvious that the great 1H79.] KIJSHEM, (2). •■521 object <,f «ecunnff i.on-idoatiHcation will 1„, n....,noted l,v that TI.e Deputy R«turni„K Officer shall, upon .eceivin. he copy o the voters' list fro... the polli„,'sul.-diviH "^ for which he .s to act. prefix u nun.lJr to Tve.-y ..a,, in Deputy Returiung OHice.." I take it it .eo- »« no con. Jt is tWther urge,l though that would I.e inu..ate,ial heie. m consequence of the sn.all nu.nber involved that number to two names on the list. It appears fron. his evidence that the Hgures are not his. He has no Zo n pos.tuely by whon. they were ,nade. but he has : Z that they must have been made by his poll clerk and I to^th \ th f't"' "" ^^''^''^•^*" '"•^«-^--- ^-•<"n cS H . T "' "P'"^°" '^''y ''''^ ""^J'^ ^'V his poll with the law to pernnt any one else to see the nu.nbers. and we-n.ust act on the principle oocmr. jrra.umnMnr riU. €S8B (fCt(X. thl fZ '" ?' "^-'^^f.'"" ""^'•''' ^"^'■^^"tions 7, H a,ul <) of he .)Oth section. That is the section which prescribes nLT I ? '"^""^"'^ ^'^'"'^ •^•^""'^1 '- ^^dopted by the Deputy Returning Officer upon a vote being tenlred. Afte. having ascertained that the name of the voter is upon the list and after having heard and .lisposed of a..y objection which may be made, in the manner provided by the Act, the 7th sub-section prescribes the method of prJ- ceeding to actually give the vote by ballot. The Deputy back ot the ballot paper and upon the counterfoil attached thereto, to detach the ballot paper and deliver it to the vo er and to •' write, or otherwise mark, upon such counter- foil, the number prefixed to the name of such per,son upon '"■W- ."•ii I'ltoVfNCIAI, KLKCTIONS. [A.n. the vok'fs' li.st;" and thi' only mark he in to iiiaki- oppo- Mite the tmine of tlvc voter on tho liHt 'm on« which sholl "'If'iiotc tliat lit- hiis ifceivL'd a ballot papor." Any ticik ui mark of any kin,that would, I appr(;hend, have Jieen n 'atal ohjection to the validity of the vote, hut the Act of 1879 (42 Vic. c. 4) wa,s passed for the veiy purpose of remedyinjr that ditHculty. That statute, wliile still renderinj,' thc^ l>allot paper invalid if marksare phu'ed upon it other than the propel' maiks, namely, the official number correspond - ino; to that upon the coiniteifoil, and thi! initials of the Returning Officer, contains this .saving dau.se : "But words oi' marks corruptly oi' intentionally, or by mistake, written or made, or omitted to be written or made, by the Deputy It.turning Officer on a balh.t pape,-, shall liot avoid the same." I am of opinion that this cast-, upon the evidence, comtis clearly within the proviso that, where the mark is made by mistake of the Dcqjuty Returning Officer, the ballot paper is not avoided, but the vote is entitled to be counted. I'pon the evidence here it is beyond controversy in my Juilgment that the Deputy Returning Officers honestly, although mistakenly, placed the numbers upon the ballot papers. They had no intention of violating the law, I am (piite sure. Their mistake was one which arose from misinti^rpretation of the Act, and was precisely that kind of mark upon thi- ballot paper which the Legislatine did not intend to have the effect of destroying the vote. Mr. Mclntyre has pointed out difficulties that might ari.se, and olijoctions that might be taken to that mode of procedure by a Deputy Returning Officer— that a Deputy Returning Officer who is a parti.san might be enabled in this way to IN7H.J msMKi.r, (2i 52;J ?;iiin ail unfair adviiiitajfi'. That flittionlty in om- w« ar« nl>lij,'('(l to cncoiiiitfr in t-ach particular case as hcst tli»" ( 'ourt can. The etf'ect, if that wen* eNtabliHhed in a par- tiiular case, nii^jlitlu' ty whatever motive animnted, should h i /e th- -Hect of destroyinj,; the fiancliise. Tlien, in fuitherance of that argumen . it van con i ended on l)eha]f of the petitioner that section M>7 who.-.d that sueh an objeelion as this sliouid he fata! t(, ,ie vote. The HrjL^i.meut is that there has been a disroj^aid of tht; prin- cijiles laid down l)y tlie Act. Now, we are to ondeavor to arrive at the principles laid down by the Legislatuie which ^fovern the election now in ,|uestion by puttinj; to>,'ether the Act in tlie Revised Statutes, and the Act l)assed in l«7}». The principles are, I think, what I have indicated. P\)llowed out, they show tli'at the petitioner in this caise had a nuijority of the votes, that he was entitled to be returned, and that the onus is now east Ufion the respondetit to attack the return. The charges of eoirupt practices were then withdrawn ^»n both sides; and after evidenct^ had been i^iven on he- lialf of till- petitioner atf'ecting the question of costs, the following jiidoiiicnts were delivered: Moss, C. J. (). — The (juestion of costs is one which could not have ari.sen in this precise form previous to the Act of I87f». Until that uniending Act which I have had occasion already to refei' to, was passed, the effect of what lias been shown to-day would not have been to entitle Mr. Baker to the seat. It is only by virtue of the saving clause contained in that statute that he is enabled, not- withstanding the mistake of the Returning Officers, to receive that seat to which the votes of the people entitled liim. -'•■a0(ii!.'-, 524 PROVINCIAL ELECTIONS. [a.u. Now, the first question in endeavoring to dispose of the matter of costs, is to ascertain, if we can, with whom tJie wrong originated. The Deputy Returning Officers had undoubtedly made a mistake; but for that it cannot b»t contended that the respondent was in any way liable. In the next place, a recount was asked for ; aiul without entering into details as to the part which the respondent m^ have taken in setting the Judge in motion, it is quite- sufficient to observe that, whatever was that part, the re- spondent was acting within his legal rights, and that if he failed in prosecuting the recount with success, the law had already made the provision for the penalty. He did not procure the return which the learned Judge in tht- discharge of his duty made. He procured that return, at least, no further than by asking the Judge to make th.^ recount, and thus exercising his strictly legal right. Thus far, therefore, the respondent appears to have committed no act of which the petitioner irs entitled to complain. In the next place, we have to consider what was open to the Junior Judge upon the recount. It is, to .say the least of it, by no moans clear that the learned Judge could have received any of the evidence which we liav^'e heard to-day explanatory of the manner in which the Deputy Returning Officers fell into this unfortunate mistake, ft 18 quite true that the Judge of the Countv Court or the Junior Judge, in proceeding with the reoouut, is to pro- ceed in the manner pointed out by the 105th and 106th sections, and that the 105th section has been amended by the Act of 1879 ; but no nrovLsioa has been made for the learned Judge entering into an investigation of the motives which led to the D, puty Returning Officer making any mark upon the ballot beyond those strictly authorized by law. If we turn for a moment to the wording of sec. 18 of the Act of 1879, I see the words are simply: "Words or marks coi_ aptly or intentionally, or by mistake, written or made, or omitted to be written or made, by the Deputy Returning Officer on a ballot paper, shall not avoid the same." 1879.] UU8.SEI.L (2). o'Zn What is the tribunal which is invested with the Juiis- «liction to determine whether " words or marks" which, in point of fact, are not authorized by the law, have been " corruptly or intentionally, or by mistake, written oi- made ?" It is at least a grave (juestion, and the inclination of my own opinion is to answer it in the negative as ti> whether the learned Judge could entertain, could listen to, such evidence upon an application which pointed meruly to a recount, and while discharging the duties of a minis- terial officer, acting under the clauses relating to re- counting. At any rate, the learned Judge was not asked to enter upon any such investigation. Some question is made as to the sufficiency of the notict^ served upon Mr. Baker. The notice was quite sufficient, at any rate, to enable him to appear with his counsel and object to its insufficiency. It would have been the easiest thing in the world to ask the learned Judge to adjourn the proceedings, and enable Mr. Baker to adduce before the Judge such evidence as this Court has heard to-day from the Deputy Returning Officers. That coui-se was not taken. Mr. Baker chose to rely upon his objection to the notice. The law has not provided for the form of the notice in such a matter, that I am aware of. Mr. Baker, at any rate, knew this investigation was going on, 1 have no doubt. Then, if it was desirable to adduce evidence before the learned Judge, what cour.se was open ? I appre- hend it to be quite clear, and indeed Mr. O'Gara conceded that it was quite clear, that a petition was absolutely necessary. There stood the return, declaring in due form of law that Mr. Morgan had been elected, by the majority of the duly qualified electors in this constituency who hati voted, to represent them in the Legislative Assembly. How was this to be got rid of, unless by taking pro- ceedings under a petition ? No answer to that can be suggested. Then what should the respondent have done upon the petition being filed ? He was charged with per- .sonal corruption, and therefore not in a position to have resigned ; but supposing him to have been in a position « •MR MWP •)20 PROVINCIAL KLECTIOXS. [a.d. to l.avo icsigjied eitliei- before the petition was Hied or after, what would have been the result, suppose; he ha*! resigned before the petition was filed and the petitioner had not ehosen to prosecute any petition. I asked th.- learned counsel to define the exact attitude which his elient would have occupied if Mr. Morgan had chosen to recede froin that position. It is extremely difficult to say •what would have occurred. Mr. Baker would not hav^ betm declared retume would have the effect of avoidinir tne olect'tn Uirlcr 'V "■. " ' ,'■'' *• '''^' ""«' *he Court on such Admission deolired tiic election \\,---. Mr. Hodgim, Q.C., and Mr. i). L. Scott, for respondent After the reading of the petition, counsel for the peti- tioner Ktated that he did not propose to offer evidence of corrupt practices by the respondent. But he was in po.ssession of evidence which would show that acts had been committed by those for whom the respondent wa-s responsible, as his agents, in the legal signification of thi' term, both in character and number sufficient to avoid th(? election under the Ontario Act (R S. O., c. 10, s. 159>. Counsel for the respondent then stated that from th.> instructions given to him, he had to say that there was evidence capable of being produced which would have the effect of avoiding the election. The section of the Election Act (R. S. ()., c. 10, s. 159) is as follows : " To prevent the expense and trouble of ' new elections when unnecessary and useless, in case of a corrupt act or acts being committed by an agent without the knowledge and consent of the candidate, if the corrui act or acts was or were of such trifling nature, or was were of such trifliiitr extent, that the result cannot hi been affected, or l^ , osonably suppose*! to ha\ ■ 18T!).] SOUTH WENTWORTH. 631 nff^:ted by such act or acts, either alone or in connection mih other Illegal practices at the election, such corrupt t'A'i .;r acts shall not avoid the election." Moss, C. J. O.-We declare the election void. We will report to the Speaker that the election ought to be set n.Si.J.3 but that corrupt practices have not been proved to nave been committed by the respondent. The petitioner i« entitled to the general costs of the cause. (13 Journal Legis. Asscm., 1880, p. 7.) SOUTH WENTWORTH. Before Chief Justice Moss and Mr. Justice Galt. Hamilton, 7 ^ ShSeTpe^ct*'^ ''^~^ ''^*"««" '""^ E'^gl^h -d Ontario statutes 36 « m 532 PROVINCIAL ELECTIONS. [A.D. The petition contained the usual charges of corrupt practices, and claimed the seat for the defeated candidate, Nicholas Awrey. The vote at the election, after a re- count by the County Judge, was for respondent, 1,231 ; for Mr. Awrey, 1,230 ; majority for respondent, 1. Mr. B. B. Osier, Q.C, and Mr. Teetzel, for petitioners. Mr. McCarthy, Q.C, and Mr. Robertson, Q.C, for re- spondent. During the proceedings application was made to strike out the following classes of objected votes in the parti- culars filed by the respondent : Persons objected to as (1) aliens ; (2) minors ; (3) having no interest as owners, tenants or occupants in the land assessed to them ; and (4) farmers' sons not residing upon the farm, as required by law. The Court held, that by' the Voters' List Finality Act of 1878 (41 Vic, c. 21), they were precluded from inquiring into the legality of the votes included in those lists ; and that the only votes that could be inquired into were those specially excepted by section 3 of the Finality Act. The particulars moved against were then struck out. A scrutiny of votes took place before the learned Judges, the result of which is set out in the judgment, which wat, delivered by Moss, C. J. 0. — Of most of the very numerous questions raised upon the petition we disposed during the progress of the trial, and to them it will be unnecessary now to refer. We reserved for consideration the case of Philip Gage, whose vote was rejected upon the counting of the ballots. This voter, who was a man of intelligence, accustomed to exercise his franchise, and familiar with the mode of using the ballot, through some curious mistake or inadvertence tore the paper in two after putting a cross opposite the name of Mr. Carpenter, and handed the marked half to the Deputy Returning Officer, by whom it was deposited 1879.] SOUTH VVENTWORTH. 533 n the ballot box. It immediately occurred to Mr. Gage that he had made a mistake, and he so stated to the officer at the same time giving him the other half, and demanded a ballot paper on the ground that he had inadvertently spoiled tha which he had received. To this request-cor rectly, we think-the Deputy Returning Officer refused to accede for the voter had disabled himself from complying with the conditions prescribed by the statute of returning the original paper. But without laying down any ruk of general application, we are of opinion that under the specal circumstances proved the vote should be allowed This was the only torn ballot paper deposited, so that its identity admits of no doubt. There is no question as to the good faith of the voter. His political sympathies were not doubtful ; and it would be simply absLd to suspect him of having resorted to a trick for the purpose ot showing tor which candidate he had cast his vote. We think therefore without violating any sound principle, or without opening the door to any dangerous evasion of the .ninciple of securing secrecy, that we can allow this \ OuG, votes of Alva G. Jones and Geo. A. Davis, on the ground dL r.l '"! *T'^ ^"""™ ^''y''- We decHne to diturb their votes, because it has not been proved to our Toilthr: *'' •^'^"'"'" '''''' ^^ ^'^^'^^"-^ The other questions are divisible into three classes • The first and most important depends upon the con- struction o the 2nd sub-section of the 3rd section of the the r . fi ; 1 r'f ^'. ^^'' ^^ "^^^h '' '« ^-^-*^d that the certified list shall, upon any scrutiny, be final and conclusive evidence of the right to vote, except as to persons who at any time subsequently to the list being certified are. or have been, non-resident, either within thf n unicipahty to which the s.icl Hst relates, or within the electoral district for which t]. ■ lection is being held, and who by reason thereof are, under the provisions of ' The 534 i'HO VINCI Al KLECTIONS. [A.D. Election Act ot' Ontario,' incompetent and disentitled to vote." The T-articular portion of that Act to which refer- once is nifule is containey the voter having parted wit., the i- .oi- t which he had — or by t;.) Assess- ment Roll appeared to have — in th': property, and be- coming also a non-resident of the Sectoral division Where there has been no chanre ot room for opening an inquiry lie is to leave the p ;,sition of c< unaiiected. The second class of cases reserved is that of voters »'^ ■> chose to mark their ballot papers with a straight line, instead of anything approaching to the form of a cross, opposite the name of a candidate. :is status there is no ■>ult of this decision stants for the seat 1879.] SOUTH WENTWORTH. 535 The decisions in our Courts upon the provisions of the Donunion Act, which do not appear to bu dlstinguisliahlo, are against the validity of such votes. But it is urged that these decisions are irreconcilahle with and should be treated as overruled by the judgment of the Court of Connnon Pleas in England in Woodward v. Sarsons (L K, 10 C. P. 74G). We an much impressed with the force of Mr. McCarthy's argument upon this point; but, upon consideration, we do not think it can be sustained. The judgment of the English Court proceeded upon the ground that lae making of a cross was merely directory and not mandatory. Tliere is no reference to a frjss in the enacting part of the Im- perial Statute, but it makes its appearance, for the first time, in the instructions for the guidance of voters. It is in fact simply given as the appropriate mode for the vote, indicating his choice. In our statute it is very different. It is expressly enacted that the voter shall mark his b: '; t in the manner mentioned in the direction 1 - placing a cross on tlie right hand .side, opposite the name of the cp date for whom he desires to vote. The natural and ol.vious m* ning of this language is, that he must make a cross to 'fy his choice. The whole policy of securing secrecy pit adf the suggestion that the voter is at liberty to make any mark he pleases ; and the Legislature has therefore prescribed a kind of mark which IS the easie.st and most familiar— that indeed which is used by the illiterate. In view of the difference between the English statute and ours, we do not feel at liberty to refuse to follow the decisions of our own Courts. We may observe that this conclusion seems to be jus- tified by the amendinsr Act of 1879, which enacts that a voter may mark his ballot paper with a cross, eithor (as heretofore) on the right hand side opposite the name of the candidate for whom he desires to vote, or any other place within the division which contains the name of the candidate. mpi 536 PROVIN( lAL ELECTIONa [A.D. While removing the objection as to the prcciHe position of the mark in tli compartment, this see ma to insist upon its form being retained. As this was the view tak<'n by the learned Judge of the County Court, our decision upon this point does not affect the result of the scrutiny. The third class is that of voters who have from some straii '(1 perversity put a cross upon the back of the ballot paper only. > We are of opinion that this mode of marking is not sanctioned by the statute, and we disallow these votes, the effect of which is to strike off one vote from Mr. Carpenter and two from Mr. Awrey. The result of our judf^ment is as follows : The respond- ent had upon the recount a majority of one ; to this we have added the vote of Philip Gage, and from it have struck off one vote, on thq ground that the mark was endorsed on the ballot instead of being made on its face ; and we disallowed on various grounds, during the progress of the trial, twelve votes. This would have placed respondent in a minority of eleven. But we struck off from Mr. Awrey's total three votes during the trial, and two are now disallowed by reason of the marks being endorsed. During the trial, however, we added three votes to his number. On the whole, therefore, we give him upon the scrutiny a majority of nine. We find that Nicholas Awrey was duly elected ; and that no corrupt practice was proved to have been com- mitted by or with the knov/ledge and consent of either of the candidates, and there is no reason to believe that corrupt practices extensively prevailed at the election. While unseating Mr. Carpenter, we are satisfied that he conducted the contest with the utmost propriety and fairness, and that there is no pretext with charging him with the slightest violation of the law. (13 Journal Legis. Assem., 1880, p. 9.) Divpialyfication 1879.J STORMONT (2), 387 STORMONT (2). Befoue Chief Justice Moss, and Mh. Vice- Chancellok Bi-ake. CoriNWALL, .'»// Decemlifr, 1870. Edwatu) Empey ft al, Pdlflonern, v. Joseph Kerr, ReHfondent. lH»qwil\)ication qf an ivjenl /or corrupt praclkfH, R.S.O., r. 10, ni. I114, 174, 175. The election having been declared void 011 aouount of the corrupt pric- ticea of an asent of the respondent, the Judges acting as a Court fur the trial of illegal acta coinuiitted at the election, after notice to auch agent, ^^rautud an order for the punishment of such agent by fine and di8({ualiflcation. The petition in this case contained the usual charges of corrupt practices. The majority for the respondent at the election was 1 1. It appeared from the evidence of one John M. Campbell and others, that a number of voters had been bribed to vote for the respondent. At the close of the evidence, and after the argument of Mr. Bethune, Q.C., and Mr. A. F. Mclntyrc, for petitioner, Mr. Hector Cameron, Q.C., Mr. Bergin and Mr. Whitney^ for respondent, The Court held that corrupt practices had not been established against the respondent personally ; that the agency of Campbell had been established ; that he (Camp- bell) had been guilty of corrupt practices, and that the result of the election had been affected thereby. The election was thereupon declared void. Mr. Bethune then moved for a summons, under R.S.O., c. 10, 8s. 174, 175, calling upon John M.Campbell to show cause why he should not be punished pursuant to s. 164, by fine and disqualification. 338 PHOVINCIAL ELECTIONS. [a.d. ill It % 'M Mr. Cameron thereupon appeared for Campbell, and admitted that he could not deny that he had been guilty of wilful and corrupt bribery and corrupt practices, and that he must therefore be disqualified. The Court thereupon granted the order.* *The form of cob viction settled by tlio Judges in the Lincoln case (ante p. 480) is as follows : Be it remembered, tliat from evidence given before us, the Honorable Christopher Salmon Patterson, and the Honorable Samuel Hume Blake, ^Y'^°^^^^ J"''?^^ *PPO'"'ed for the trial of election petitions at the city of St. Catharines, in the county of Lincoln, on the twelfth day of Sep- tember, in the year of our Lord one thousand eight hundred and seventy- six, at the trial of an election petition, wherein Alexander Hutchinson and Nathan Henry Pawling were petitioners, and John (Charles Rykert was respondent, and whereby tlie said petitioners alleged that the said respondent was not duly elected as a member of the Legislative Assembly of the Province of Ontario at the election for the electoral division of the county of Lincohi, holden on the eighteenth and twenty-lifth days of February, in the said year of our Lord one thousand eight hundred and seventy-six, John Junkin, a person riot a party to the said petition, appeared to have committed a corrupt practice against the form of the statutes in such case made and inovided, by giving or agreeing to give, and offering or promising, a sum ur sums of money or other valuable con- sideration, and promising or endeavoring to procure money or other valu- able consideration, or discharge or release of rent then due by one Arthur Belcher or one Anne Belcher, to the said Anne Belcher (wife of the said Arthur Belcher), or on behalf of the said Arthur Belchor, in order to induce the said Anue Belcher to procure the vote of the said Arthur Belchor at the said election, or to procure or induce tiie said Arthur Belchor to vote for the said respondent at the said election, or to refrain irom voting. And the said Jc hn Junkin was charged with the said corrupt practice upon the said evidence before us the said Judges, whereupon we ordered the said John Junkin to be summoned to aopear at Osgoode Hall in the city of Toronto, on Thursday the fourteenth day of December in the said year one thousand eight hundred and seventy-six, at noon, before the Court for the trial of all illegal acts committed during the said election to show cause why he should not be adjudged guilty of bribery pursuant to the statutes in that behalf, in that he the said John Junkin had com- mitted the said corrupt practices ; and the said John Junkin was duly siunmoned so to appear and to show cause, ai has been made to appear to us now sitting as sucli last mentioned Court in pursuance of the Election Act of 1870, at the time and place aforesaid, by the affidavit in writing of William Davia Swayze, and has neglected or refused to attend in pursu- ance of such summons ; and thereupon proof having been duly made before us by the said affidavit, that the said John Junkin was duly summoned l)y the personal service upon him by the said Swayze of the summons issued by us in that behalf, we pronounce judgment in the absence of the said John Junkin. And it appearing to us, the said Judges sitting as such last mentioned Court, from the said evidence, that the said John Junkin IS guilty of a orrupt practice, namely, bribery by offering and promising to procure vaiuaHe consideration to or for the said Anne Belcher, that is to say, the discharge or release of rent due by her husband the said Arthur Belcher, who was a voter at the said election, in order to induce the said IS'D 1879.] WEST HASTINGS (2). V.H) WEST HASTINGS (2). Before Chief Justice Moss and Mr. Justice Galt. Belleville, -^A and 5th Novemher; 16th and 18th Dvcemhcr, 1870. Toronto, SOth December, 1879. Thomas Holden, Petitioner, v. Alexander Robertson, Respondent. Corrupt acts affeelinrj the result of the election— R. S. 0., c. 10, s. loO— Oniis of proof. The majority of the respondent was 337 ; but it appeared in evidence that two aeents of the respondent had bribed between forty and fifty voters ; that in close proximity to the polls spirituous liquor was sold , id given at two taverns during polling hoars, and that one of such agents took part in furnishing such liquor; and that such agent had previous to the election furnished drink or other entertainment to a meeting of electors held for the purpose of promoting the election. Held, that the result of the election had been affected thereby, and that the election was void. Per A[os,% C. J. — Prima facie corrupt practices avoid an election ; and the onus of proof that tliey are not sufficient to affect the majority of votes rests upon the respondent. Anne Belcher to procure the vote of the said Arthur Belcher at the said election. Therefore, it is adjudged by us that the said John Junkinbe convicted, ard he is hereby accordingly convicted by us of the said last mentioned corrupt practice. And V- J do further adjudge that, under and by virtue of the statutes m that case made and provided, the said John .Tunkin hath for his said offence incurred the penalty of two hundred dollars, and that durini; the eight years next after the date hereof he shall be incapable of being elected to and of sitting in the Legislative Assembly of the Province of Ontario, and of being registered as a voter and of voting at any election, and of holding any office at the nomination of the Crown or of the Lieutenant-Governor in Ontario, or any municipal office. And we do further adjudge that the said John Junkin do pay the said penalty of two hundred dollars to the Sheriff of the county of Lincoln, on or before the fifteenth day of January next, to be by the said Sheriff' paid and applied according to law. And if the said sum be not paid to the said Sheriff on or before the said fifteenth dav of January next, we adjudge the said John Junkin to be imprisoned in the common gaol of the county of Lincoln until he shall have paid the same. Dated at Toronto, this fourteenth day of December, in the year of our Lord one thousand eight hundred and seventy-six. (Signed), C. S. PATTERSON, J. A. S. H. BLAKE, V. C. ••nj. „ ':?»•"' 540 PROVINCIAL ELECTIONS. [A.D. The petition contained the usual charges of corrupt practices, and claimed that the election was void on the ground that the corrupt acts and other illegal practices had affected the result of the election. The candidates at the election were the petitioner and respondent ; and the majority for the respondent was 337. Mr J. K. Kerr, Q.C., and the Petitioner in person, for petitioner. * Mr. Hector Garmron, Q.C., for respondent. During the argument, The Chief Justice remarked, that his reading of the statute was that, jprim^^ fade, corrupt practices avoided the election ; and the onus of proof that they were not suffi- cient to affect the majority rested upon the respondent. The Judge's notes of the evidence of the principal agents of the respondent, whose acts were held to affect the result of the election, are as follows : William Sarsfield: I worked for Robertson on the day of the election. Was outside man at the Coleman ward poll. I told Robertson that I must get so and so, and I suppose he understood I was working for him I was at the poll until the close. I went and got voters, and also took them as they came. I used all my influence for Kobertson. I tried to gee a man named Maloney to vote I used every inducement to get him to vote. I gave him Jl and got it back. I suppose it was not enough money for his vote ; he said nothing about a S4 or .^5 bill. I told him It was a .So bill ; I showed him a ^o, and I then put a !U1 into his p. .cket ; he went as far as the door, and bavin., examined th. bill, handed it back. I was three or four times m Walsh's and McNulty's; people were in with me each time. We went in to get something to drink There was drinking there all day back and forwards. I under- stood It was Mr. Holden's whiskey at Walsh's. Menzies was a supporter of Robertson. I don't know that I .saw (St> 1879.] WEST HASTINGS (2). 541 any whiskey at McNulty's except Mulhem's flask. I gave T. Harris .50c. to try to get him to vote for Robertson ; I promised him $2 more. He got SI. 8.5 and three drinks. I had $40 or $45 in my pocket that morning. I received $3 from one party that day. I spent part of the money that day ; I can't say how much. I paiii people money to go and vote for Robertson. I may have bought five votes more ; I will swear I did not buy ten more. I can't say how many I paid after the election ; I paid Michael Cahill $2 ; I don't remember the name of any other person I paid that day. Burke handed me $3 on election day ; he didn't say what for ; I had a small bar account against him. He said nothing as to how the money was to be applied. I drove Robertson's conveyance that afternoon. Owing to the non-attendance of one of the agents of the respondent when called on his subpoena, the Court adjourned to the 16th December, 1879, when the following additional evidence was given : John Johnson : I canvassed for Mr. Robertson on the day of the election. I was most of the time in the Murray ward, where there are two or three divisions. I went with some voters I had solicited ; Peter Morgan and Jolin Daly. I drove Morgan to the poll in Ontario Struet. I spent some money that day — about $200 ; I can't say how much on the election. Moie than $100 ; I couldn't say more than $1.50 ; I can't say how much. I also treated. I couldn't say whether +here were fifty ; I suppose there would be pretty near fifty. I only treated one man whom I knew to be a voter — P. McNulty ; the others were young men whom I met on the street. I didn't give more than $7 to any one voter. I gave from that down to $1 ; $6» $5, $4, S3, $2, $1.50. I think they would average about $2.50. I kept no track. I can't say to how many they were to give $1. It was my own money. I had received money from Mr. Ashley and Mr. Robertson. I got $50 from Robertson on the morning of the election ; I sent my brother for it to Robei tson. I got a cheque the Saturday 542 PROVINCIAL ELECTIONS. [a.d. before for S350. The election was on Thursday. I got another $50, I think, on the Monday before, but I am not sure. I was putting up a building for Mr. Ashley. There was only one of my workmen named McHugh 'who was paid for his day. He said he would otherwise have <^one off to another job. The night before the election 1 .mve some money to elector^two or three; I can't say how many. They gave me to understand that they wanted to spend some money the next day one way or the other I lent Dick Burke $7 ; I let Jemmy Hughes have $1 ■ I gave James Sheelin $7. Cross-exami/iied ; I had no conversation with Robertson about the election at any time. I didn't talk with Robert- son about any vote,s, or how they were to be canvassed The moneys I received were on the building contract. We had no talk that any of this should be spent on the elec- tion. I can't tell to how many persons I gave money for the purpose of influencing their votes ; I can give no idea I gave money to twenty, twenty-five or thirty persons. I was present at only one committee meeting; I think Robertson was there. I took no part at that meeting. Moss, C. J. O.— The petition in this case contains the usual charges of corrupt practices by the respondent him- self and by his agents. The majority was 337. There was no proof of corrupt acts on the part of re,spondent himself, but there was convincing and admitted proof of bribery by at least two persons, namely, Sarsfield and Johnson, who were his agents. Mr. Cameron, counsel for respondent, candidly admitted he could not deny the agency of the former, and the respondent in his evidence stated, "I asked Mr. Johnson to do what he could for me." I shall have occasion to refer more at length to the evi- dence hereafter, but for the present it is sufficient to say the result of this petition depends upon the construction to be placed upon the 159th sec. of chap. 10, R. S. 0. That section is : " To prevent the expense and trouble of new 1879.] WEST HASTINGS (2). 543 elections when unnecessary and useless, in case of a corrupt act or acts being committed by an agent, without the knowledge and consent of the candidate, if the corrupt act or acts was or were of such trifling nature, or was or were of such trifling extent, that the result cannot have been affected, or be reasonably supposed to have been affected, by such act or acts, either alone or in connection with other illegal practices at the election, such corrupt act or acts shall not avoid the election." By Sar.sfleld's own admission he bribed at least seven voters; he mentioned two, and stated he might have bought five more. Johnson admitted he had spent SlaO in the purchase of votes — for some he paid $7 and for others SI, but he thought the average was S2.50. This would represent sixty votes ; but I gather from his evidence the number was not so large, but would extend to between thirty and forty, so that we have direct proof that at least between forty and fifty voters were bribed by these tw^o agents alone. It appeared also from the evidence, that in close prox- imity to one of the polls situate in Coleman Ward, there were two places at which spirituous liquor was given to voters ; one of these was kept by a man named Walsh, and the other by a woman named McNulty. It was not satisfactorily shown that the respondent was aware that this was being carried on during polling hours, although shortly after the poll closed he visited McNulty's in com- pany with a person named Mulhearn, who gave him some whiskey out of a flask he had in his pocket. The evidence was not clear that Mulhearn was an agent of re- .spondent's, but it was proved that Sarsfield, Bn admitted agent, was in both these places. He says himself, " Was in both McNulty's aufl. Wa; .h's ou the day of election perhaps three or four tim,;''. ; owtijs went in with me each time." Morton, anoti^^r a'.-tive supporter of respond- ent, although not an age^v-, said, " Was at the poll in Coleman Ward during the ui*^ ; Mr. Robertson was there and spcke to many people ; did not hear him solicit any 544 PROVINCIAL ELECTIONS. [a.d. person's vote; Sarsfield, Mulhearn, and Morris worked actively for Mr. Robertson ; saw people going into and out of Walsh's and McNulty's ; was once at McNulty's with Sfersfield ; saw probably twenty or thirty people go to the houses ; do not know whether Mr. Robertson knew there was drinking going on ; should think that anyone there could see that drinking was going on." There were -several other witnesses who admitted being in those two places during polling hours, and while the poll was open in their close proximity. By the 151st section, "No candidate for the represen- tation of any electoral district shall, nor shall any other person, either provide or furnish drink or other entertain- ment at the expense of such candidate or other person to any meeting of electors, aforesaid, for the purpose of pro- moting such election, previous to or during such election or pay, or promise or engage to p^y, for any such drink or other entertainment, except only that nothing herein contained shall extend to any entertainment furnished to any such meeting of electors by or at the expense of any person or persons at his, her or their usual place of resi- dence." By the 11th sub-sec. of sec. 2 of the Election Act oi Ontario, any violation of this 151st sec. is declared to be a corrupt practice. It is plain from the evidence that the liquor dispensed at these two places was not provided at the expense of either Walsh or McNulty, but by some other persoiw consequently was a corrupt practice under the Uth sub- sec, of sec. 2, above referred to; and as it has been shown that Sarsfield took part in furnishing this liquor to voters the respondent must be held responsible, so far as the re- sult of this petition is concerned, for such acts ot his agent It was also strongly urged by Mr. Kerr that there was a contravention of this provision on two other occasions or perhaps three, namely: one, or perhaps two, at the hotel kept by Sarsfield, and another at the residence of Mr. R. S. Young. I think, a,s respects the meeting at Mr. Young's there was nothing objectionable; it was clearly within the 1879.] FD 1879.] WEST HASTINGS (2). 645 exception, being furnished at his own expense and at his usual place of residence. I confess I did not attach much importance during the trial to the meeting or meetings held at SarsSeld's, for the reason that, until Mr. Kerr referred to the interpretation clause, I considered a contravention of the 151st section in the light rather of a forbidden than a corrupt practice, but a consideration of his argument has satislied me I was mistaken. Moreover, I looked upon what took place on those occasions as of such a trifling nature as not to have affected the result of the election ; but I was much impressed with his contention that when we are called upon to decide on the effect which a number of illegal acts may have had on that result, we can ex- clude none from our consideration. It is plain the meet- ing in question wa;? held " for the purpose of promoting the election previous to such election," and also that per- sons who were agents of the respondent were present and furnished drink and entertainment to the persons then taking part in the proceedings ; it is therefore clear there was an infringement of the law. There were also two cases of personation proved, but it was not shown that this violation of the law was done by persons for whose actions the respondent is responsible ;- still they cannot be overlooked when we are called upon to decide whether " the cornipt act or acts was or were of such trifling nature, or of such trifling extent, that the result cannot have been affected, or be reasonably supposed to have been affected, by such act or acts, either alone or in con- nection with other illegal practices at the election." We find, then, that there were between forty and fifty cases of bribery, a large amount of indiscriminate treating close to one of the polling places — one at a large meeting the evening before the polling day — which treating was a corrupt practice under the 11th sub-section of section 2 of the Election Act, and two cases of personation. Thus there are instances of almost every corrunt practice forbidden by the Election Law. We feel it impossible to say that such numerous illegal •''46 PROVINCIAL ELECTIONS. [a.D. 1879. practices cannot be said not to have affected the result of the election, nor be reasonably supposed not to have done so. If the present return can be supported, owing to the lai-ge majority of 337, that would be to determine that in any case in which the successful candidate has a large majority it is useless to complain of any infringement of the law unless corrupt practices can be brought home to the candidate personally. We find that the election of Alexander Robertson was void for corrupt practices by his agents ; and we declare the election void, and order the costs of this petition to lie paid by him. (13 Journal legia. Aaaem., 1880, p. 7.) ;v ^^0 CONTENTS. PART II.-PROVINCIAL ELECTIONS, 1875, CARDWELL-Chief JU8TICE Dbapeb, . '*" OORNWALU-Chanckixoh 8PBA0OB, . \ . . ' '^l DUNDAS— <• .. • • • 203 EAST NORTHUMBERr,AND-MR. Jvmc^ Qwvnne " ." ' S^ rAl^or^"^°^«'-^r^^™--%- • ■^- LIKCOLX-MK J..eEQw™ ... Co.:Z'ZZZ^'!^-. .^ .. 'o ~w "• t""'"^ ^^"•''B.SON A Mi.. VICK-CUNCELLOB B.,AKK, 489 ~Mk. J STICE PaTTEESON, ... \^ LONDON-Chanckmor Speagge. ... " " f?? PEEL— AND OoPKT OF Appeal, 343 RUSSELI^Cha.v<. . :„,.PBA0OE. ." . ". . " t^ SOUTH ESSEX " .. • ■ • 199 S oxJSRi:'?':^ T"^" ^"^'' ^^ ' co;„x J. ap;ea^ S oUUTH OXFORL- s ijrvK Justice Dbapbr, (Practice}, . . 2.-» WELLAND (2)-Mb. Justice G^vynne, • - " " ' ?t^ WESTELCiIN-CHiBKju..rxcEDBAPEB,rPrac««;. '• '. [ ^r. " — ChaNCELLOB SPBACtOE, ... ool WEST HASTINGS— " " - - 227 WEST WELLINGTON-MR. Justice Gwvnne, " .' .* ." gJJ PART IIL-PROVINCIAL ELECTIONS. 1879. DUFPERIN-Chief Justice Moss, fPracHce), - . 529 KUSSELL (2)-Chief Justice Moss and Mr. Vice.Chancklloe BliAKE, .... SOUTH^WENTWORTH-Chief Justice Moss anL Mr. Jus'tice' ''" STORMo'nT (2)-Ch;ef Justice Moss an"d Mr. Vice-chancellor" ""' iiLAKK, ••.... WEST HASTINGS (2)-C„,ef Justice Moss" and Mr.' Justice " ^'^ Galt, ... 6.39 mm