IMAGE EVALUATION TEST TARGET (MT-3) Y // .// < ->•>'* m '.< \} .•-yr ^ IN THE ELECTION COURT. "The Controverted Elections Act, 1873." JONATHAN F. L. PAESONS, Petitioner, vs. ALFIIBD G. JONES, Eespondent. Decision as to time and re(}uisites of fling and presentation of petition. Tn this case the Petitioner, on his own affidavit, stating that he liad been uiiablo to servo the petition within the time limited by law, obtained an order tor extension of time for service in the following terms : " On readinp; tlie iiflTidavit of Jonatlian F. L. Parsons and on motion I do onler that tlie tiiiio to servo tlie ix'tition in the above matter be oxtendpd, and l!iat sucli service l)e niude within fourteen davs from the date hereof. '' " Dated 27tli Jtarch, 1874. "(Signed) James W. Johnston, Judge of Election Court.'" A rule nisi to set aside the petition and the above order was taken out on behalf of the Respondent in the following terms : On reading the petition of the above named petitioner herein, the reeof^'ni/nnee and ailidavit of justification, nnd the nftidavit and order of i)etit loner lierein for extension of time for service, tlie affidavits sworn lu'rein on tlie 2iid Aj.ril instant of James Sweet and Hugh Kerr, and the affidavits, with tlie exhibits sworn the same day, of Wallace Graham and Benjamin Russell, nnd the records and papers herein in the olhce of the Clerk of the El.-ction Court, nnd on motion T do order that tlie -lid j.ptiti.-.n md puMieation tlu-rcof, :mVeai.l,„ri,e »»» why the petition niu ,,„ if "'' ■■"' '"*'■ '"" <« sl,„„ »rer,ha„ld not be .et : * r' "-"^< -d M.e »b„ Hon ra^ea McDonald fo,.,h.S ?'■""•«"«' ""'f"™ '■«' l"' II,.. -^ W«.therbe „„ hehalf „f i^! fe^X*' ^■>- «-»» «l..un,„„- I I i 4 4 ^(1 not neeonj- ii'I'davit. aiKf ilfss ,..i„.,e to ■'"y of Aiiri], 't'voii o'clock. 'N'STO\, •''wi Co?,,./. 3iint of the Pril, A. J). • Johnston, on. .Tames 1011, q. c. espondenf. ""iPn(, as <'ie aboA-e < me i A preliminary objection war, talven by Mr. MoDonalJ, that a .Tudge^ had no power lo set aside his own proceedings, but the rule of the 27th March, luiving beiMi made absolute in the first instance, and having been granted f.rpw/-^^. I consider that the Ee^pondent was at liberty to move to discharge it, provided he could show sufficient reasons why the rule should not have been granted in the first instance. The principal ground relied upon by the Eespondcnt was that the peLilion was not fihul, delivered and presented according to law— and if that objection is substan- tiated it must be liital. The llch Section of the Controverted Elections' Act, Cap. 2S, 1873, 2nd clause, declares that the petition nuist be presented no!" later than thirty days after the publication ol the receipt of the return in the " Canada Gazette," and it was adniit tod bv both parties that the 28rd of March was the last dav for presentation of any petition against the return of the llespond-ut. On the 11th March the Court made an order that all pel it ions against the return of members be filed within flu; time re could not -])ast seven etition into T the peti- n fortunate ! positively known by %me afH da- sod where re that he i, I should ^n of time iliug. i not filed ice on the f has the od in the Iv's office, affidavit, an officer of which But if I the affi- that the io offices •es close, ipon the , I must I i hold that the Clerk was not bound to have his office open or any one present to receive papers after 4 o'clock p. m. In JMigland where by rule papers are to be served bisforo 7 o'clock p. m.. if made alter, the service is deemed as having been made on the fol- lowing day, and in this country I presume tliat a paper left in the office after office hours and when tliere was no officer present to receive it, would be filed as of the day following. The statement of Mr. Thompson that the Clerk told him he would return to his •)ffice about seven and remain there and receive ilie petition until half-past seven, I do not think alters the case, for Mr. McDonald cannot state positively whether he wuh at the office at hiili'-past seven or twenty minutes to eight, and it may be tliat the Clerk left precisely at the half hour, and a lew minutes before IMr. McDonald arrived. But even had the Cleric faikMl to keep his appointment, that would be a matter to be settled between lum and the petitioner, and could not be allowed to operate to the prejudice of a party insisting on his strict legal rights. A question has arisen wln^her shoving the paper under the door after hours was a compliance witlx the Act. The 2\u\ clause of section 11 of the Act is very explicit on this point ; " the peti- tion must be presented, «i well as the spirit of the Act 1 4 u-es that the presentation should be made by leaving the paper with some one capable ot rerei\ing it, and of giving a receipt for it if required. Where does tiie respon^ibilitv of the Clerk for the petition commence? Evidently from the time when it is presented or exhibitei' to him, and he has given a receipt for it if required. Supposing the petition had Ixnm stolen during the night, or swept into the stove, and destroyed without ! is knowledge,, that any petition had been in his otiice, the Clerk upon no principle that I am aware of could be held liable for its loss when he was in total ignorance of it s existence, and yet th? law unquestionably lixes him with such liability after the petition has been presented or filed with him. And the fiict that tlie peti- tion was not stolen or destroyed, but was discovered the next day stowed away inside of a petition in another matter, does not altei' the case. That the Cleric himself was no mrtv in nn„ TU , |"i^">^-lllilllOn 01 It IS eVlJpnf from AT- Jhompson's aflad.ivit, in which he sfites fJ,..^ fi, ""1, "f*""" ^^l''- putting the petition under the door as eoniva nt^! 01 It. JUr. Ihompson reijiiosted the Clorlt to rennh, i„ 1,!. » 7 receive 3 petition whi.h ,va, abeut. to bo fi,,l T,'" ;-™,i,„ the petition against the abet 1 ^ „ N^ -■ ";; the order for extension of time was moved for. My opinion being as above on the main nm•n^ T i tne rule ms,, though I have examined tbem with some care I have no alteruat.ve hut to „a.e the r„,e ni. absolute and ;ith pel:rro:i'r::et:rr''"r'^"-'° '"■^* *^ the following terms:- """ *" """" P»'=<"i '■> James W. Johnston, Judffe of Election Court. 'iingemenfc by Id equivalent enl. from Mr. erk promised the petition, to consider presentation » liis office to then adds, •idjnt "; but t petition he 'it it appears r the foJlow- •eive in all entatiou or 'I'ivedat the endorsatiou in this case he Act, and McDonald e Act, and b the tii^s I it uunec- i stated in 3 care. I and with juash the passed in 2nd April, 3 order for i hfi made roceedings GEORGE riEBBARD, Petitioner. vs. CHARLES TUPPER, Respondent. ON, 1 Court. Decision as to security. Whether one surety sufficient. _ In this cause the surety and recognizance given bv the Peti- tioner ^ere objected to on the ground, among others", that there was but one surety given. A summons was taken out April fith on beha t ot the Petu.oner, to sl,eu- cause why the security should not be declared sufficient. The matter was argued before the Clerk of the Court bv R L AVeathorbe, Esq., on behalf of the Petition<3r, and J S d" ihompsou, Esq. , on behalf of the K 'spondeut. BEK.TAMr.v RU.SHE.T, Esq., CM of the Court, nou- (April 10th) delivered the ioUowing decision :— ^ _ Several objections were filed to the recognizance and security in this case, but the only ground r.lied on at the hearin-^ was that tiie recognizance had been entered into bv oul, one surety. The argu,nent in support of the objection is based altogeth;r upon Section 11 Sub-section 5, and certain expressions in .Section 1- of the Act, taken m connection with Rules 2-1 and 2o of the Electioii Court. If the elfecfc of the expressions relied upon, in these Sections and Rules had not already b.en settled by very ugh judicial authority, it might be necessary to go back 'to hrst principles m the construction of doubtful clauses, but I find thatl am relieved of the necessity of instituting any original uiquiry by a decision of m..., .J., ,vhich, as I view the m.rtter, conclusively S3ttles the question. In ord.r to sho.v that thi decision IS precisely apjjlicable to t!i3 matter in hand, I shall quote the sections of the Eiiglish Act and R.,iles sid.bv sida with the corresponding S3ction.of the Dominion Act and the Rules of 10 this Court upon \vhich the argument in support of the objoc-tion IS based : — '' CANADA ACT. f-'ec. 11, .Suh-KSec. 5. Tlie Pectirify i n*J^ the extent of One Thou- sand Dolhirs. It shall le pivcr, either hy reconrnizance fo he entered into by ,my number of sureties vot exceedm,/ four, or hV a dei.osit of monpy with theCIerk'of tlie Klection ^oiirt, If no other manner l)e nre- scribed, or in the prescribed n.unner If any, or ].artly hy reooKnizance and partly by sucli deposit. * mT ^'t ! * * ^t ^'"^'1 ''e lawful " * to object m writinLT to such re- cognizance on the !,rom,d that the suretie^ orlany of them are insufficient. or th»t a surety is dead '^ ' KNGhlSJr ACT. J^'pn. C>, ,%h-Ser. 5. The secnritv shall be to an amount of On;' Thou- sand Pounds. It shall l)e ^,'iven eith. r by recop;nizance to he entered into by ^anp number of sureties not c.rceedtny four, or liy a dejiusit of money in manner ])rescril)ed, or .lartly in one way and partly by another. . »» Sec. 8. It shall be lawful * * U\ object in Avritiiit:, on the (/round that the sureties or any of them are in- suffictejit, or that a surety is dead, or rannot le founppnritv ■ One Thon- 1 be ^'ivcn 'o he enteiof} sureties not (Ifjiosit of 'sri'ibed, or 1 fiartly by .All * * ta (/round that I em are in- is dead, or co^mizance ttireties or ne or more ontain the ich mrety, he Nov 11 bu found ■aseology It of the iind Act. "'aiiadiau iial pro- Eugliish T, 18G8, ber iiofc olhcr- 'guiiieiit 1 points ould be ''o, the iiul the )ody of 11 the form without any parenthetical clause to provide for its sub- division. I attach no importance to the use of the plural, (to which I believe my attention was not directed,) in the parenthesis given for the signature of the surety, as this is easily accounted for when it is considered that the form is derived indirectly from the English rules in which only one form is given and made applicable, as I understand it, to the case whera there is but one, or to the case where there are more than one surety. Still less do I attach any imi)ortance to the note appended to the state- ment of the decision of AVillks J. above recited, that "an appeal is understood to be pending against the decisioii." l have not been able to learn that the decision has been reversed and it 18 not even positively ted that the appeal was actuallMakeu out. lu the mean lim^ the judgment of so eminent an authority furnishes guidance that I am contented to rely ou until it is discredited by some competent tribunal. In accordance with the above decision an order passed in the following terms to declare the security sutflcieni :— . Onrea surety,'' bo good 13 security filed hcTein establislied, tlio appeal therefrom, and after argu- ment of the said appeal, I do order that the ?aid order of tlie Clerk of this Court be confirmed, and that the said security he decUred sullieient ami the sufliciency ot the same is hereby declared estahliMied within themeanmsof the 13tli Section of the '" Controverted Election's 187J. and that the said appeal be dismissed \vith costs. Halifax, 20tli June, 1874. (Signed) W, A. IIknhy, Judije of Ehciion Court. '' io Sub- 180-, for age with a Hcotia, ios' shall dl mean 3 [)erHon jquirod." d at oa directly utes nor ponsidor i for all 1 in the lie Clerk y of the IIOBERT DOULL, Petitioner, V8 JAMES WILLIAM CARMICHAEL aud JOHN ADAM DAWSON, Kespondents. D.eision on preB>n.ar, .,;.eUons. Q.^stian. as to sufficiency of In this cau«o the petition vvas tiled iu the follosving form .- ii\ THK :;l7cctiox court. T/ie Controverted Election Act, 1873. Election for the County of Pietou holden on the Fifth dav of Resppctfully aliewetli : 4 o?^K.S^j'Zt:'S:;':;r: S;^ - 'if en ont.. Fif.. caiKlHlat;.s. an.l the K.turninu ( tlk'e .: rf/ >'^'/^P<^titioner were ^VUhuu. Carmichael aud John k.^H^'^L^:^ - EIk ll-S^elSd''""" «aid election. '"-^ ''''^'-'"'' *""' ""(Inly returnml nt 4. And your petitioner says that the vote '^^^ .•Hfcnta and sfrvHiH;^ were respectively guilty of bribery and" cornint. practices, and of using undue influence'and intimidation at such elect on within the meaning of the " Controverted Election AcUf 1873 " and iha several other acts in force in that behalf. "''•"" ^ci oi ib/j, and tne 16 (^^^^^^S'j^TS^^^^^f «.e said Jan,03 William servants and asont.s at said Sion w I f '' °^*'''"» ^""^ ^^^i of tS a-K corrupt practices, and o em,!'^^ n° S'^^f^r'"" «"''^>' ^^ ''"''^S' lutont to corrupt and bribe cprti ;^f f1, ,""'■ °^ corruj.tion witli the .«aKl election to vote forte ^if,! *'\^,-.*: ^''^toi'^ qualified to vo e at Adam Dawson or one of\tm'a;'such ScSon;'"' '^""'"''^^''^^^ '^^^^^^ ^^ickSSj^M^l^^j^^^r'^^ '''f ^''« ^''^'^l James Willian. HSeu,.s and .servant" 1 rt^S'^'^^V?";' ^'-i^^^ ""'' ^Hch of tS wonld 10. certain o.JZ ^^eI'Sl;iJr^--sP Cannie^:? S^jSi'^Sln^^JS'^lin^^* ^^ f^'^ •^-- ^Vil.iam on- asents and servants rJspecrive Iv tllren?"' '/ *'"^"^ '^"^^ ^''^'^l' " Mich election, qualified to vntr. t ;», ' V ^^^'^"''''^ certain electors -it under the Gavenunent o Can ,da a?' ,?^ ^^'""» '^"me held offices Wimrr™'''>, ^'"^t 'f therd Unvote ft. "t'r"'^^''''''^ Government J^ill am Carmichael and John Ad n?^- ' ^'"'"'' *''o ^^'I'tl Janiea each „t ,„„„ «s.„b ™t S' ,'i™T!;;i»"' "•■* "f ttom. SSir^iS'S 1 «...».»■ «.., .1,0 »M «„„„„j,;'k:,;:; S3.£T'orS'?,,i:;:, '■°" a.miolt.iS'jS'irVn''' '"'"'"'■ f itti ;!i II "^'aiu. 111 lll(» HRld QiiVf^txtl 17 Janios William Kl eacli of tlieir L'llty of l)ril)ery iption witli tlie 'fled to vote at -liuel and John James William J each of their u(l to vote at lie said James of I hem, they "K to thein. amea William )i and eacli of in (>li!ctora at ' Iield offices Goverumeut said James f lliem, they isaid. mes William ud their and y of l)ril)ery ion with the ?aid election as McDonald lies William 11(1 tli(>ii- and I certain of liey did not rahle Jaijips iiuliieer had adjourned his Court after -id eUcio f the purpose of declarii,^^ which of sa.d caudi a es wer el < t ' 1 . aiy|P t^e y,.tes had heen ...muted hy the s.ud £uu- i^ ) i^u '^C^ Sr.^; hut ,-Sr,^-t^ to hold such scrutmy or to proceed therewith. ' ""-'^'^i ^^^^''-Gti 21. And your Petitioner says further that if the said votes of fho saul persons respectiv.dy mention..! and referred to i^ the fmv .„ ,? paragraphs of tills petition as Imvin- resp,.,.tiy,.lv ill'li - vot .7 n the said James Willia.u Carmichneland \rohn Adu biwso to saidelectMn. had nut heen ivrviv.d or record..! o,„n eh If ? the sa„lJam.;,s V, illiam ('aruuchapl un,l John Adau. I)a v" , u ,t 1 , . 1 &:e;^;ndi4;;riu:;:;nii;s'oni: SLSr'^ reconle-l for your IVtiUnner, Tl. nuud.; of ^^its'll, d n" .M .f a ex-c..: 1 nil' '" "' rV '''' ''^'^'^'l^' "f >•«'''■ lVtitiou..r wo ,1 lUe ^r dn 'and'yohu'\du^'n'"'^''"''''''"^ '''^ ^'"' ^'"'^ J'"'"^« ^Vill;^ v^aimicnat 1 and John Adam Dawson, or one of them. 22 An.l your IVditionc'r says further that a -realev sons legally entitle.l to vote at the said .decti mi yly votes tor your P.ditioner than for the said Janu-s Wilh.nu and John Adam Dawson, or one of them. nuinlier of imr- ind tendered their Carmichael peuS^^::,i!:i;le!i;^ vlin^'ei^tirryryr^h^rr' ^'-r^'^vr -^ -^'"^ tliat tlu> sai.. eleeiio^ of iic laid' Ja^e '^ ^^^l'f ^^ l;^ ^^^ ^''^^^^^ Adam Dawson, or .)ne of them, is null and void •, t ..t I one of them, were or was not .luly elect."' I,r";;;l;rnedl I'lf tlult^:oui Petition.'r was returne. luly elected. and ou-ht t. have heen and should he An.l as in duty hound your P.'litioner will ..yer j.ray, Sec. Date.l nt Halifax this l.'iih .lay of March, A. D. 1^74. <^'«"'''" l!..ni-.UT Doii.i.. The ioWimms prolimi.iary object ions were lilecl ..ii b.-hali llespondeuts, by Wallace (Jniham, Ivs.j., as Attoruev Agent : — oi iiii.l Th e said [Respondents, bv \vj grounds of iiisulKcion cy ly of preliiniiiary objeclioiis and ugiimst the poLitioa heroia, and t!i (MUl- r plamfsdieivln conLniiiocl, and sav : 18 •iny iiirllior ])roceediiig.s thereon. t'^u.a.la, iUHl the rule MulV Lm, f, .' "'^ f^ "^ ^''" l'«"'lia.nout of >-v in that behalf, mai:ii!:i^f\^;;i{,j:!^l "- "^'-' '-ts and the tl.^a;n;i^;s^n!h.£,t^!;r;;v•'" -■->-. i-t ih,.,.oof, that C;nna.h., or in M-hat part Wi ,V i/'^^ '""" "] ^''" l'""''")"" of r.^-i.h's in tlu- Doniinim ,f (Mn d '•■''"''f- '''■ »''■" ♦''<' IVtitioner of. or that fho sanu' "o , .' V '" V'-'l ^'''' "'" ^'>'ovii.co thero- ,i>'n-.,lic.lion of tho .aid T<* or anv^Aet o'f I'l"' ^^ '!'''" *'"^ '"^"l*'^ ^^^ or that th,. election eo„n,h j, V i- t^ ?^ '"' ■".•^•^■•"'"Jt of Canada, Canada or any or whaili;;"';;,',;;;,^!;;: ';;;;;;,,-'''''" ^he Donnnion of tl •'5. As to the several u>re is not in ivao-raiihs and suilieientiv and le..(dl entitle retitioner to t! iiny of said ])ara<,';ai set forth t foiiiiiliiints of said petition »!• ail thereof any roniplaint th 4. As to tlN> 4th relief souclit o shew any und -y said ]ietition lie return or to ic persons voiini: f paraprniph ot said i,efi(ion it under til or le sev Hid I, not on the paid liespundent or that 1 era! Statutes in that liehalf y^'spondents were not h-all OS not shew tliat ud list, and It is not alh-ed tl to vote for tl entitled, leni. thoujih ■« or either of then As to the 5th M'eotions were duly niiule at'tl lat they were eomited f„r off. II, or that they w(>re not struck le ]ir(i])er time low that I'elit piirapmph of said petition Ih, and as fa and not r as nich ""I'^i's <)l,j,et,.,| or di.l not G. iiJiIKMrs tl '.« ^\ould avoid or ettect ^^il Uf anv el re is nothin!:r to I defects may have 1 I'iiii th(y had. IS to th,. nth and 7th i>ari no chari^e within the 1 the election or return. ,n-ai)hs of said ]iefition 11 •een ininuiterial IS no certain le-al suiheient st i\v or Stat lit. .s relating- („ ,.] stated that the allen-ed act :itejii(>nt of anv 'ley contain lections, aud there or ret urn. and it niade at tl •- '^^'''i"'' '!oiH' to j.n'icnn^ l{,wi fomplaint. And it is not lie does iiot a])pear that tl londent proper tin le ohjectiona to sa.id votes ^^ ction ere 7._ As to the.Sth. nth and 1 lej^'al or suilicient st,, tlierehy shewn, and tl Oth enient of an para,:rrai)hs tliey contn V Cil objected to at tho time. And to said voters. le Votes complain "iplaint, niid n in no certain ■d of o iimhie return is it is not stated that ii-e not stated to have I een f; ^A^^^'T'i^'Msth, i.-ith, i-ith any oath was tendered said i)elition thev cont the alle' complaint Icffally or used to procure the elecd;;! on^^.Sl^^l!;^^^ J;^^^Z ij2;s tliereoxj, nro fi-oni tlip 'iirliaiiirut of acts iiud tlie !ii'roof, that noiiiinidn of •' IVtitiouor oviiiC(> tliore- le ,«po))P or of Canada, dominion of aiil petition ■ coiiijilaint Lttim or to i?lie\v that ly ciitillfHl, '111, ihoiigh I'oiintod for struck off, iinthinc: to IlK.v'liiid, inuiiatcrial n. i\v contain ami there Ki it is not s" f'lirtiou lotcs ^\•ere 10 C(>rtain ' return is liavc hpen 5 teuilered trrajilis of iii'di, and I tlicro is Olio Wi'TO em. "liiii'fro or docs not that they it Icpnlly ere (lone licni. 19 OffiL-tWin''nlfw\^''""''"'''^^ Of said petition the acts of tlie Keturnin- Ulticoi thorein alle:j;ed wore Rceonlin look ation lor fills Cmiuf „,. ,• *i t , «in().'c( oi ,-,hisi, fr- _ "II, L,„„f „, ,„, „,„ jj^jg^ ^__ llio lri„|. Ilio CoiifrovertnJ Elf.-li,m» .l,., igra- ,„„i- ,, ,. vision Immv,, t„ ,„» ,■„,. „,„ , . . ' ]." ,'"■""•» "'o 'n'st. pro- iion, l,v a C„„°, n,| ' ?;' ."' ""•'' l>''"H"ii™r.v „l,joo- of tho d„,i„., „o,.,;,„ii',, i„ n,i, c. ™ : „ r ■■ v™','''"';'?' ««.•.; wo „. He- "Ci: 1C:;:L,;:;::';:'":;,,.:;;:.';= :!<■' -""^ ben.,.e mentioned, undi:'.^;- ^ ^ : w! i^rtr^ ^'^ ^'' " tbo «espo„dent mav present in w Uin " • "' '''*'""' tionsor -n-ounds of',-, ,« " '"^"X Jwlnmnary objec- against tbe petition or n^ain.t -inv t-H, ' , ''' '° "'"^^ and tbis Couit or anv ^n5^: b 'o' I^"?; "'^ 'I'"""'" parties npon sueb obj.ntions and I'm T"T'' '""^' ^^« -n.einisn«.,n, ::: "^ f :;f ' f"'"'''" ^'^^ ^^- "otbing in tbe sbape of precedent^ o i'^ : "t,? T '".^ raised a, to o,.,i„H.,icti„„ i " i „' r,;;?, H'™ ''": '"^° voIv«l a„d ie ,l,e,.elbre ,,„„,„, unnoocssa r . J „e to dif" • "■ 1 rx^Toirt::™''' ^ *"" - "* ™ "■ '^- «" than l„,„t, Parasrapt;™' :U5,/rrdlHr? "°, '^^' oompant a"d (Jinri: /- ^ '^ ai&tmct ground of I "liii, u^Q '"<^ objefhous number fonrtpor, T Z , to group some of both to avoir! „nn ^''"'^^"'^' ^ "^"^t endeavor 1 uuLQ ro a\ oia unnecessary prolixity. 1 ral-sed, tio* Court,! felt, Tlif Eiig- ious br the M'elbro loolc f points of '" coiisider- c lirst pro- iiary objec- oi'i period under (Iio ' J'MII (i; iy 0111 pari son "f,d;ind by t".)' 'fudges 'lis Court ble to ap- -ct under prelimin- tlio Act seetion, ry objeo- to urge iiiereon," liear the ?eido the \^"e have tnre and peculiar las been nts in- imiuate irt and Judge * whole 10 less nd of Jeavor 21 The first and second objections are made to the generalinsuffici- eney of the petition. In the first it is olijected that the petition " differs materially in form and substance from the requirements of Cha])ler 28 of the Acts of 1873, of the Canadian Parliament and the rules m;ul > thereunder and the oth?r acts and the law in that behall' and is wholly insulneient." In tlie second it is objected ''that it does not appear by the said petition or any part thereof that the same is made in relafinn to anything done in the Domin- ion of Canada or in what part or Province thereof or that the Petitioner resid(;s in the Dominion of Canada or in what part or Province thereof or that the same contains any complaint within the scope or jurisdiction of the said Actor any Act of the Parlia- ment of Canada or that the Election complained of was held with- in the Dominion of Canada or any or what part or Province thereof" The lirst objection is certtuidy too general, on the principle of pleading that requires som^ notice to be given to the opposite party r,f the grounds of objection, and for all practical purposes might have contained no other allegation than the concluding words, "and is wholly insutKcient ;"' fir the preceding allegation, that it (the petition ) tliflers materially in form and substance, &c., points with no more certainty to the nature of any alleged defect. Chapter 28, referred to, says, "a petition need not be in any par- ticular form but must complain of the undue election or return of a member, &c," and our rules not only do not, but therefore could not, require any particular form. The petition is obviously as to subsfniice within the requirements of both. It states the " holdiiigand result of the election" and sets out the right of the Petitioner to petition as a Candidate, complains that the Kes- pondents were " unduly elected and unduly returned," and claims that he (the Petitioner; had a right to have been returned at the election in question and concludes with the prayer, " that it may be determined that the election of the sitting members, or one of them is null and void and that thev or one of them were or was not duly elected or returned," and that Petitioner, " was duly elected and ought to have been or should be returned." Thus, in my estimation, the requirements of the Statutes and rules have been fully satisfied. The second objection, although apparently of a substan- tial, is still rather more of a technical character, and as 22 surli u'>t to Iw inu.h earourarrod ,,o,. ..n „ t, v.^il. 0,u. of our rule. rH"^ ' '' i"'''^''^'''' '" !"•«■ undo. iher..,"o," r'r' 'Tl"^ ""'••'"^ i"---^i"g I^onunion of Canada," followi,,, <,.o 3 . jt ""^ '"'^" '''"'' mo„t of the place where iho ,7 ;„ r / , "*^ ''^"^'^^ of Couimons of P».*i.m I „„„„t s„li b' ;1 T V "™'' ''''*""" 1'"- "-^ to the cri,„„ ,.!„„ j' , °,t , "-■' ''-'"°""'"'' ""■"""' pa^e for .aki„. »„„„,„,,, ;,,."-"« •»'''» "- ■« ln„g (lodsioi, of the .1,„)„„ „I,„ 1,1, ''■'I'""*""'!"' T-.0 o,jo..«o„ ,„ ,.,o°p„s;::^; ':;;:;,,:,:'.t"r' ™r'-'- as a notice of the narticiil.,. nu. ' ■ '"'""& ^'^''^''tive the circumstances W: ': ^ o-^l^^s C' "' ^' ' '""^^ ""^- j;^er appear. Ti. Eespo^d:::"^:,;^ ,:rr/-^^^^'^ ^^^^^ '-- Count.v of Pictou in the ]lonse of C " ^^l^resmt the J;nou-.hat,CountvofPic<.n U L-ZT "' ^--'^'-they Pu^tou to be in Xova Scotia and 'fT, T.f '" '^'"' ^^'^""'^•^ «i' Dominion of Canada. The e L I n V "i '^ *'^ ^''-^^^ «^ ^•^- and is headed, "Th. Co tmwVr,"' tJie Election Court Court has no powel ov^ ^^ 2^/'^";^--. ^^^ ^^'^•' Tin. Ac't.and if Eespondents hoH r^:,;;?^'^ T ""'"^ ^'^^ comes to he atfeeted by our decision una"' ^Ta I ""\ '''''^ a substantial defence. That nuo\ \ T '^'' '' "'""^^ ^orm the peculiar ohiectiostalo^n T . ,T, '^' "" ^^ admitted bv - ^ position t^ com;L!:tr;nv ^^ j^::?^^ ^^'f ^^^^- "^ meant to be contested Doo rf '^ ^' *° *'^« ^^'^^'^iun p-.a,.,e .ha. u™ .."s:, ^t^^: fTfT;;;:'^- -- toa ]t does. It states thp oln„f x ^"^ f>piuion .Count, ,. r„„„.-::;, H ,:r r„ cou'r 't "°"' ^° •'- w^ 23 lissible, (o pre- 110 I)roceotli7)g be (](;i;';tte(l l)\r iJu is ovitli)n(;h' ova 8coti;i ancl 7'' ill tlui stale- to huvo )j(>,.,i f" analle<;![a(ioM f CoBiinons of i'':it 'ii(i same iinoi)n.st oilier but Ihis pro- .strictuess in ibJe i-ertainh' •1 ^ay as (o oitlier ail ao- ter exiats in iiiiie is Joijfr :)oiitlunts (he I coiieliisive. iiig ilc'lbc'tive must under L'h wiJ] here- preseiit, the iKula,— they ( County of part of the etion Court 73." This uiu]-r that one Which vould form Jiiiitted by ey are not fie election other res- e (>j)iuion ild in the d to take 3i's other public matters. "Courts also notice the territorial cAtont of the u-is(li(;tiou and sovreiLrnty Ji rtd (h; facto bv th exerc vci-iuuem. anu iiio local tlivisions of their country.— sudi as states provinces, counties, counties of cities, cities, towns, pari^hcs and the like, so far as political government is concerned or aill .ted, but not the relative positions of such h)cal divisions, nor their precise boundaries furtlier than may be described in public statutes." 1 T,t!jhrnn.Erldenci\sec.\b. =>= * * And " the staled days of gen- eral political contests, * •■■ * the (hite and place of the sittings of (he Legislature and in short to borrow (lie language ot" the Vice-chancellor in Ta.ihr vs. Bmrhnj, "all public matters whicii aifect the government of the country.'' lJ>i,L ,s,r. 10. B.vvlly Ju-stice .says:—" Ic is quite true that this Court Mill take ludicial notice of the general division of the Kingdom into couiii ies, be- ••ause they ar,3 continually in the haoit of directing their pro •s> to the Sheritl's of those Counties and because they are mentioi.ed in a great variety of statutes." Bkst J. in the" same case sa; ^ :— "We ought it is true, to take judicial notice of t! counties in England and of those which are Maritime Counties as being men- tioned in a variety of Acts of rarliameii(."' Iloutovi) J. in (he .same case, who seems to admit this proposition, says, "still (he Court cannot take judicial notice cf (he local situation of Orlbrd- ness." DeiihdV, case, 4 B. and Aid. 240. By reference to all the statutes now, and at the time of the election, in force, AVe find but one County of Pictou in the Dominion of Canada. That county we know from other legal sources as well as the election s(a(utes. to be in JS^ova Scotia and by the name of the County of Tu-tou, an electoral division hv representation in the House of Commons of Canada. (See section 40 British Xorth America Act 18(>7, " Each of the eighteen counties of Xova Scotia shall be an elec- toral district. The County of Halifax shall be entitled to return two and each of the other counties one member."; And by the same legal principles and evidence we are bound to know that Xova Scotia is in the Dominion of Canada. I think therefore that the County of Pictou must be taken to mean an electoral district for members for the House of Commons. And as to the objection, that the election in question was not alleged directly, in so many words, to have been " for morabers for the House of Commons,^' I think the answ or may be also fairly given it in the fifth and seventh paragraphs of the petition, refereu COS are made (0 the 24 " alphabel;i(';i] ]\^t of tl,o ..K < ^ , ^^^^iHieatovoto.2ei;. ;r:j:.,7^^ Gnnmons of Canada as nrovl.I 1 ''"' '" '^" //'-- '>/" corrupt practice. * * ^ ,-, 'l''^™'^^ "^ I'-'-ns. " ^uiUv of verted Eioctious Act or iST'i •• "">a),i„^. ..f the Coulro- that election. ' ^'"■' S''""' '"'• ' !"' iu'spo.ulouts ,u Id look ;it referred Joubt ill ) Jafioii upon thosiil^ eufc, and tlioi-elbre to !'^ not coiisiider it nei '■iit) petition as whol, fi^ iii tiiich general I ■essarv that ai."' if (heel.ici ^ve .should d ■" 'iKire li,aii lOll eriii 'lo nuud of 'iiiy one sulKcioiit \\'i)iild Icav '•lUiipLiiii ■« lit) rca of point much st 'i'^^'f. f think I am I '•oiicbide against ll y lii.^inicled ill t;,(> k IS (h> II. the d fi) that ress uas laid on a d lOllll;! (, lat o! ris- '•"'i^iiler it. sidHci- ""•'"••' '"'J- As (0 (his iliis was a i^tiiigiiished .rudge in {\ [uasi criminal '"''"'" i" (lie ^y-r,nh b;nzing wliaj Mvediiig Mas not ji ?o of cor ''«'I"iivd, but as to rh "I't praciise.s, f 10 evi- oases, and it certainlv d sancfion to be found in tl I'ase. ^\ '^ a set of]' (o "^'■^ not apply to (he ol Pneetothohigh aiitl remark proper! '"'yt'llect Jikch- i,,) ''•-•rity in qtiesiion Ills is a.' modern •jeclion in (hin |ii-odncc(l I 'v a r( y a[)plies, \\e wjiat fell from Bauun Af ." be says, "studv (I ' On th may .safdr w 1 on ihe |)i)ini ( ■rer- " \Miii-h hi- \vill not 8tai ^"TJ.v in Ihe y "■r.as mon applicable,) o "'•'(Vc/< (Vj.sv, 10 //, ;, . ..J uee. sitting here to try an Ind 1^5 next pagn h^ is "'"•"'•Ji%'ofthepeli.ionbu( " be IS renoH..,] • »l)()rlod its siib- th 'e <'aiulida(e I'oni .i>-tiaeui or an action I as saying, •• irj U(>rc "r penalty, yo„ „,,„|^j , in.ide res ora penally, hcfor, |"> not trying a criminal '-•iv« to give e\id, sponsible for anolher, fo ) for a cniiH rules applicabi '"'nd, to (his. ease, I enceofdirectbriberv, I '' 'o a civil cas • ^ 'i"i ^vx\\v^ a civil ')ni tor (he last Th are ihe rnl '•I'le doctrine is laid d I''-* applicable ■a^o- and th iippn ^i^'ears, in England, and f governed by (he decisions law, tl . Hns Tonrt |,a,s be.-n clothed of' Nllch jndnre '"^^■" ''.v .nil ihc jnd "'" 'imf'' conlcnt' \J\ tion and .'nithoi-it .V-'i'^c'ie of the s iJesid san)) " i)(,.v„r= lie "idi tlio "i"'i'ior Conrlsof r, nnder (ho .(iirisdic- i^au- would hav( mnty of Pi,(;o„, VO in th' Ilou^. nf ■''''^." and aciii!- Ji»( iisutl lit that 'O'lS " , r.';i,.,,| j;„. 'I in fiio ]/Hr,\. ^it^Iwr it isidHci- '• --^N )o this '( iiiiU,,,- cn.ii,', '^•" ^inl uh:U '"' '"Pplii'able ■hnr/.iiifr what '•^ '<> ih(j ini- 'H'><- This is the.' iiioilt'Di •lion i„ (IjI^ '' I'.v a rcf;.i-- '" Whirh his l|'l>'i'"llj;o,(o " //. U: .. 1 I'll! its siih- 'I' J. Woi'j. i'liy, h('t;,n. i'or ii ci-iiin. i'iht'py, hill ■- <'h* jiulgos '^'K (o |)(. "ulcr the 1 jurisdi,- .7'., ^^ Xotes of the Wed- Jan,, ],S7->'M ..„ n i .«...,..„,,, „„„„ ,,„;„„. ,„„ „;„,;;;:.,:^r j - ™;; ; Mibstantial additions to the petition. " an":r:' !" , p • """■'■'' "■'"■'•' '''■'l"'i-s his ,v.; / o^ther at the time of the election, or as a PetiU ! t::t:Z janly no part of this en,uiry as to the merits of his L LT U^ residence may have been, at both dates, in a foreign co " : and^s^h residence .ould not affect his right to be .tLed. omJ I have thus gone .tiore into detail on the noints no.ed than mav mlZ f """T'- = '^"^'-^-^ i' nghtto doso." Z ny fit judgment, hoping that it may tend to rende. discus 1 upon them unnecessary in the other cases for decision. The third obj-ection I consider quite too general for the reason, g.ven when dealing with the first, but if not so, 1 ,hi 1 Z gr >nnds msullici.nt as will hereafter appear The t; „ . tion £ consider incapable of beii,,, .„./,;,• ' ' ^-"-'h objec ;;th^itis not stated thatthea,le;;di;C;:;J!^^^^^^^ he Respondent " but the words .sed are that fhose vote !< vere John Adam Dau-.on,"_and T cannot conceive how better word IS not sho n "that they were not struck off." This wouhl h„ unneeessarily negativing before-hand what mav b i; ^ L^° Hhown as a matter of defence. A^iin. a. t„ ,„. .round^ th« objections are not stated " to have been -nade at th; ; '; ^n' ' a.s a substantial allegation in an election petition,-! U in • is If 26 snffin-ont to allege the fa.ts generally, which go to show- an "X Su^V"":;"' "" "^""''^""^ votes; a.,cnhat the wX no «,th.. anchng the sa.ae wore objectecl to hv and on behalf o Pet.t.oner shonld be in the iir.st place construed to n.e . ,1 pro,.er ..,., and then it will becon.e a question to be de iw t htrn: r ?^ ^:^"^'^''""^"> theparagrapho4: 't^ s not ! link so much aga.nst the votes, the validiiv of which n^; e sepn^e , aUacked on a scrutinv, (although .uch^are inc^L: ^ ii; as tor the allowance, l,y the J^eturning OfHcor of nninb-,.. f vote when .. m.-huled in .ha, ,. PetitL ":i: di ,: ^^ :^ tlen,/j./., notwithstanding their nan.es were on the ist ," winch the election was held. If that be the position as L^^.'d P--"d, Ian. of the opinion that the votes under tl 1, f i;:n:;i;Mhesi;:r,c^.;^ ^.e olec^on, an iilegdlist was used : and if that be iLved, !^ Jcct.on a the tune was required ; nor is it nocessarv to ne ..t^v 1 Fesu,npt.on ol t e waiver, by I'etdioner, <.f hi. right to ,h' n pIuy.n-n:o the legal list, a.d the eflect of using; totallvm^^^ list cannot be n.easured or legully inquired into. ^ ^ Tho first part, of the sixth objection is too general : and the con- ^ |>chng parte, u think cannot be sustained, vi., theabsen. of aHega,.u.Mhatthe«cls were doneto procure lH>onden,.-elon o ^ urn, and that the ol,ec,ionsar^^ Hken V, he proper tnne. ' It was argued strenuouslv bv the tunned ot he Jiespondents'. that because the words >• ton c h. elec.on- a,.e i'ound in the im section of chapter LT of t e mnaon Act ISTM preceding -. his election shall iL therebv 1 /, lo 2-^;-..al)dec.aredvoid.--thepo...rofajudgeoftln;Co-^^ delate a, eW, on void lor bribery or other corrupt prac,i,.esi, derneawhodytrou. that .section, and that bucau.sJi. !.. .,t sary to constitute bnbery or other corrupt practics'^.r uhK^h an deot.on umy be a^oided that it nu.st \J j.Lf ,o h • •■ to ^7 ro to sliow- an tlial Ihe words, 11(1 ou belialf of to iiienii, at the he d(?ci(le(l by •li objected to, V of which may arc included in of nuiiiboi-s to !■* to ha\e been >ii the list bv 1 assumed and • the (i:-iini- I made, ov not oes not show .T claim," and !ive b.'en im- 'r siitHcicnlly ;>l:uiis thai, at roved, no oh- to negriti\o a t to the civi- olallv illeiral •'iiid (he con- Jsencuofnny iuts' election have In 'en 'ii^ly by the " to {irucuro ' of the Do- I'oby (by the his Court to pi'aci ices is \'.!is uQces* s ibr which J;' "lo |)rn- cutv his clcetinii." (lu; allc;i;:ition c!iarij;in-- a Rcs]):rn(!oiit in tonus with lu'ihcry &<• , uiiu-t ailci^'o in tiu> ])cliti^'''^ to be tioned, complain: th:rt:d:.:vXtr''r'^'^^'"^"- proof of bribe; . J „ t ' .''b ^'' f '"°"''™" ^ '"" ontitlod t„ do ,„. A ,„u..,io , , , '■"""""" '"" '>» >" •ho fo.-«.. i„ tbi, ,.„„,; ■V."""""';' '"' '■■■'■'*"' - '" linmeiitury law „r |.'„ ' , ">"""'>" law, or H,„ ,,ar- i>o."i"ion „, Canada, ^'Ld:::;!:::; r- r"'""^"'^^ "■" cautiaout of»t„t„l„„, have .,l™^r7 ,^ *■""""■ ''>' '1'° «< ParJia„,„„t r.«,.,li l r "'r "" '""» ""■' l"«"oo however, („ «et,.Io In , .^.^^ •"':^'^' '^'^V' «eems to mo. of '^urt have boon'nMuhrhJ n ^^r*"', ''"*"'" '" ^"^" '■'>lo« any Eloctiou ' us see from disposes of without the «•■ Hpoaking an olectioi) 'I case. 1, 0. will) those inces there ^ioii, that is itly he 8UJS "But that 'Kiidate ; it L' ; and if tilling wlio ,i?'ii to bo ip'is mon- es •• wore res " that TO polled enquiry J uhlo to n hy the of legal HW he is lod as to the par- is. Tlio siiif.-: the . I>y the siihject; ]>i'aetico 'loctions and in iiuittor H have o. See. to nie, il rules llcction do not 29 extend, the priuciplos, prnr-tico, and rules on which election petitions, touching tlic eh-ction of nuMnhers of the House of Commons in Enghiud, are at t/w t i. 'lu; ot the pa-^sing of thi-^ Act dealt with, shall ho observed, so far as consistently with this Act, they may l)e observed by ^uoli l<:iection Court or a Judge thoroof." By the practice of the Judges in Kiig'^nid in 1878, (when the Act was passed ). such votes as wci-o obtained by bribery, &c., independently of the candidate or his !igeni-. were struck off on a scnuiny; and I think, that uad.u- ihc toitnsof the section first q'loted we would be bound to foil )W that practice hero. Such being the c;^se, I think the two paragraphs in question are at all events available as tlio ground work for the necessary enquiry for the purpose I have meniioued. The seventh objedion is to the Stli, !)fh, and lOfh para- gt-aphs of the petition. They allege in substance that " the votes of divers persons not entitled to vote, ason why the votes Mere bad, and none of the three paragraphs alleg's, that the votes werJ ille returning officers. No fraud or misconduct is alleged against the olficers, and as the cases if any were cncpiired into, could only under the allegations, be a subject for scrutiny, and not for otherwise avoi(Hng th • election, I consider the charges defectively stated. There ought to have been such a statement as would show, on the face of the oharg>, cases of i7/,'7,/Wy lyconh'i/ ndes agiiiist Petitioner. It is quite po.isihle, some of the votes referred t.) i,i<,,i he h,«t. some for ono cause, and some for others, but wlial(>ver the cause is. it Hhonid bealh'ged, if for m ;hinfj; .dse. as a notice to the Ro- spondeiii. Xono is stated in paragraphs s and !>. and in l(i, the only reason given, is thai the voters in question '• received aid as paupers." Such votes, though •• ill-^'al." may not still be capable of being scrutinized. throiii!;h the fault or neglig-nce, it may be. of (he Pc!i!lo.!cr =>,• his agents. If the oath, prescribed in' smh cases, was not tend.M-ed ; or, at all events, if (he votes «(,re not marked "objecU'd'' on the poll book, they could not, under the acta in force, be subjected to scrutiny; and relief in that wav 30 "'- '■' .-i r,::;.; ;;;,':,;:; ;;;""'-: '» k-o .„..h '' »™'i.n....d ,:„;;;:, ■'''■"*■'■■ """ ""•'•-■'"■« i «"-..k •'"— ' Pv-Mn> s,„llnonl in™« "Common Taw of the land fl,nf ; i ' *'''" V <''t^ " ".late „„ el,,.,i„„ ,• „,„| ' ' »' o " rr "'"' """'l^ '"^-""' M»e, ho ,av,_.. „.1H, ,.p„,„., , r 1 , '■"''"'■' °' <'"> ""tie •• Bribnrv '„( ,.„.,'"' '" ';"'»''->' "'° l"'' i» porfcvll. .Hr 'I ""wral.-' J„ ,1,0 a,,,.,^ frtStf "»!iei-on ihq face of facts, a case •y, (o hnve such '^visors ill Xova lificatioii oi" (lie • as (liere is in icivfore 1 thill k fi' Hie lists were ■ P'ii'a<^rai)hs in ire of the di,s- iifliaiKl I there- lie olijecfiou to I'olh inclusive, atiifablo f'oip itly described « Ifiereiii al-' ' election of fl> (and the Jery" 0)1 the i*"?*," and the bribe cerfaiti . &e.'' The K- snfflcipndv f»f sect ion IS of the word e sufficient. ^r. 29) mys, coiinintted , (in elector, transaction been Jong that by the the enact- le pressure ' the same ?etly dear. \arlianient iidi'rable number ol' persons " were corrupted and biibed, howi.'ver iiinoct.-nt the Candidates '• may be, and tliou^di himseU' unconuecied witli tiie corrupt " practices, his election is void by reason of the incapacity of the " voters, because of the general corru[)uou, to give valid and *' effective votes."' .1 must now pnjceed to consider the effect at common law of brib.'ry at tin.' ele^'tion complaiiu.'d of, by the sm- cessful Candidates themselves or by (heir .Vg(mts. In liiahhi/'s practice of electiitii 4ih. E'l. hi/ Jlanli-ddl' 1874, at page 111, it is shown that as regards ihe other cmsiMpiences of common law bribery, they are traMsfcnvd from (he IL lUMi of Commons to the Law Cotu'ts but thai -'the old jiriiicipli's. practice and rules "observed by ParliameiiLary Committees are srill important and "binding,'' and to this Court eipially important and binding uikLu' the Act establishing it, and i. liud tliesi? importiuit declarations sustained by the ca^es 1 b.'fore referred to. The Edil'U* I'urther says: — "Now one consnpi'iu'e in i'ariiament of Common Law Bribery, when committed by a duly (pi:ililied and successful Candi- date at an election, was io euabl<' iiie House and it exclusively, {Mdjl'.'i I'drl : /.'niriirc ~i /v/. p. .V!) to annul his return and that though only a single bribe was proved.'' '• Although (he votes "so procured were void, and even il' aficr deducting iliein he sti 1 "had a majority in his lavor the rc-sult was the same" — •■.Shiwou " 1(56,2 lht(j. 4i»4, w /*'.' '• This was iiiteuded not so much as a "penalty {/h'r Willi-.i in L-lchJidl (•.(•,•,■1, (J, ami //. 20; as to "secure (o constituents a t'r3.' anil inc:)rrup: clmice; seeing 1 hat a "single purchased vote brought home to a (Candidate, inig'Iit w(!ll " throw ihmbt on his whole inajoriiy." W^ith sn"h high authorities for my guidance \ fe;d hound to declar- that when a cliarg{; of bribery or intimidation is mad? to thi-i Court it is not necessarv, iu order to avoid the election ol'.i Mi'c^-isful Caudidita, to allege any merely statulable oII'mc,.', or to d -sj ibe (heoll'uuee any fur- ther than to cliargo brii) u'y or ill! iiniditioii, &e., gmerally ; and that it is not necessary (hat the comi)iain( shoulil allege the bri- 10 |i;'ocure the election'" com- be v\\ to nave Deeu use ained of. Even bv the s!riein..'ss of the cri uiual law. tin. .h-\wn I UnnU "lacJe by .srafuie of IS iiJileiial Ulc. S2 -An oftl llCH ill C intent more " '"oi-o .-.erions vhat-.utf tent wiih ■I"', Ije iiiipiifed to " "ligii.'iut or I, _ ^oiiiiiion Law is ofK.. '• '■'■ committed \vitn)i)vi,.(, i;,j. ,1,^ '•'^"'•y fobealiegod. Bnf; '» tht« section <''-enff to the i„t bui-v i iiiiiior otfence n 'niriion <) in- '•'■"'■^« of a statute oreal '""'''^'•'■"/'''"•''"vAsand '"• Tfie on/y >' i,„e„f •^ •■' "iifbre tl '0"se,juences or penalties ...at^d thereupon arise nnrl «... :., ._ section thereupon '^e and are incurred m used '''ni)lv to do..|are t he I, "; l"'<'l'ei-tnbunal,"donot '« ""(>'r, or ,^e;,rc, of th P'-i'''.v"g„ih,."bvth, le otience, but egal consequences of t,heh-nd in are proper tribunal." The ,U. "Jg of tht •i^ion as to the th em ■«'' - 'i,o,..„,.„ f,,„he;;,";:„''S;'''''' '"' "'° '"■'■"°° '»•'' <'^bjection f) to the l^fK ;l";"-- ■!••' -» take,,, tI eoS:"': •' ''° "^'■""^ ■•' ' the majorit,. of leg„| vote, U,! "" ""S'" *« l^ive had "* of ,l,i, Court, „,| i„„. „„g,,; ':f '*; ""'' ' ^^^^'e shown and le.rni , , , • 6-^^^Juded, Idont thinJvn 7„ 7 ^ ^'oters svste- "" *'"™ ™ •'- =-""0 "'^hLVs,:;:,'!:'*"^ '- -"^^ b<'^«-n to ascertain by K'li f.iiw is often knitted wif^h an 'y ubt of qualified h an on- 'lave had "■ing flie one out- i'a'"j)Jed ■ate, but ed vio- 8 syste- 1 avoid (aiu by 33 strict eiideace wliether the number proved to have been so ex- cluded, Avould or would not affect the majority. I therefore con- sider the charge in that paragrajA to be one depending on proof before the .Indge, and not one against which a preliminary objec- tion can be urged. The tenth objection to the 19th paragraph I consider also untenable. The complaint in that paragraph is set out in the words of the prohibitory part of the section (18 caj-). 27) to which no intent or motive is added. It is simply prohibitory, and the consequences are settled by the latter part of the section- It is the " intent'' which makes what would otherwise be legal acts as set out in the first part of the section illegal ; but not so the " keeping of open a house of entertainment, Sic." The statute in the latter case altogether disregards the intent ; as, doing the prohibited act during an election, is presumed to admit of but one construction, and that necessarily is that the doing of the act mentioned could ;.e only " to procure his election." It is hardly necessary to decide upon objection 11 which is to the 20th paragraph. It complains of the refusal of the Returning Officer to grant the Petitioner a scrutiny of the Eespondeuts votes under "Cap. 8 of the E. S., 2nd series."' That chapter appears Iiow over to liave been repealed by the Act of 1803 and by the Act of 1804 to Iiave been revived ; but only as " to elections held before tlie twenty-fourth day of June, " 1805," wliich are pro\ided to be held under the provisions of " Chapft;rs 5, 7 and 8, and all Acts in amendment thereof. Any- " tiling contained in the Act passed in 180o, entitled ' an Act "to "regulate the election of members to serve in the General ' Assembly" to the contrary notwithstanding." When bv one Act another is repealed the repeal of the former will not revive the latter, (see K. S., '!rd series, page 2) and as Cap. 8 E. S., 2nd series was re\ived by the Act of 18G4 to operate only up to June, 18G5, 1 think it doubffid that it was any longer in force, and consequently that no scrutiny could be held under it. As I have sliown, however, in a former part of this Judgment that a scrutiny of votes is within the powers of a Judge of this Court, it matters little 1 tiiink how this point is now decided. 34 The 12th objecfciou to the 21st nn.J «>. i to be considered. The inra-n-nn). T I^^^'^^S'-^pJi^ i.s next any charge but laerel/alCt '^^^ ^^^-'^ -tout result aud couse.uenee. o'the e.^ ''""" ^'^'""^« ^« «- procediug paragraplis : and -is ... I . *-'""'P^'iined of in the tbe-u^elvesthoele/uersfo , .2- " ""' "' '"'^ "l^^"^^" ^n ^^r a pieliinmiuy objeetiou." This objection is to the nravp.- nf iu l^ave the ..... avoided r:;i\';r;"V'^' "^' "'^'^'^""^ *^ allows the petition to be thv ei he ^ '"^ '^''° '^'^^^^^ is the on,, one apphcabij ^ ^^^^^^ j^'"^ ^^e pra,o. hero AnappHc.ioneon.pIainingofa: I ^.: ,"'? 'T ^^"^^^"• ful ; and the petitioner seated • bL.t in u ' "''^' ''^ '"'''''^■'^«- 01' Parliament, the unseated IuSh " T'' ^' ^''^ l'^^'"- eomplaiaing of the unaue^ ^X^^ '^ •^"^^^''l'-^'^' P<^'ition, oppoiiont: and bv proof ol- his neH !''' '^"'"' «"^'^'^"-^'''ui obtain the seat i.iLelf aUn ' V "' " ""•' """'•^' ^"^ '-^ -hn-n-' .ould I,,,, i,°,,. • ^^1';;;;^- ^ avoid an ^. undue useless. ""'^ ''^ ^^bolly inapplieable and - J!::riS;s;r::: z:T'r r-' - »• «■» -^ -<. e.W«l,„a ,„,e, a,: I ":,. l"""'™ ""■''^'' '"-.'"o '1>« «..»! a,liu,lK.ati„a ,„,,,, p^;;""" "'" ''""""" "» '" Ihem u„til Alk.\. ,L\jjKs, .Ks(j., C---T "'eat of Mr. llenrv. •except as to n '"'" ^'"""'"•' '"'^ ^'"^ .'"^'S- «ot suflicient. The torn, g .•,,;:;;''"' ^ ^^■'''''^' ^'« -aiders a Petitioner. He n.a, t^;^ ' ^^^^^ T'' ''"''"^"" course at his o« n ri>Ic. The L > pl«asure, but of ^'-" f^e suffident and it is W ^^17 T '''^ ''"" ^'^^ tWe is good reason ..rdepartir^W^T," f''' '''''''' these cases vieu- any depa tures^ 2' / "'"i'^ "'^ ^''""W '" geiice as the rul(>s Mere adonted 1 "'" ^"'"^^ ^^'^'h indul- o^- clo uot set out er cJaims as tlie plumed of iu the '^ "ly ojniiiou iu tion." br uot asliiug to »• The •hilute 'ho ijr.ayor Iioro i" ^I'O petition. I'liiy be siuteess- ^y 'lie practice iieiidy petition, loin, siicfossiul insoat him but itl an "undue applicable aiul the arguiuout, le lUid c()iis(s ed at nmv I)o le 'rudL'cs in t\ leiu uuiil '1 »lio judg- be (.'on.sidors II binding on siJi-e, but of ' fonn givou [''' it unless should in with iinhil- P <^be fyling llie gentle ic«- 1 haj is exceed- aii 1 tbiuli 35 from scraps here and there iu the petition, gather that the elec- tion was to return members for the House of Commons of the Dominion of Canada, and that it was for the County of Pictou, iu thft Pro\ince of Nova Scotia. It is established in Dej/heU's case, cited by Mr. Henry, that the Court can take judicial notice of the division of the country iuto Counties. The British North America Act, gives a meml; .^r to the County of Hctou in this Proyinco, and the Act for the redis- tribution of seats gives two memb.- to the same County. Here it is headed in the County of Pictou. but does not mention the Province or the Dominion, except incidentally in other places. But all our Common Law proceedings, and oven criminal proceed- ings are headed in the same way. It is true that this is regulated by statute, but that does not affect the argument. Some "of our Counties have the same names as English Counties, but our Courts, although the Provin.-e is not stated, take fudicial notice that the proceedings relate to the Couuties in this' Province, and not to the English Counties. The concluding prayer I think is quit:^ sufficient. With respect to the body of the petition we have no prescribed form and I do not think we have any guide in Commou Law proceedings. So fiir from an election petition being held lo the strictness of crim- inal proceediugs, the practice which regulates them is eyeu less stringent, than that regulating civil proceedings in the Common Law Courts. I cau tind no single instance iu all the cases that have been decided of a petition being set aside for want of form, and our rule No. 07 says, that no procoedinr • under the Act' shall be defeated by any formal objection, which I consider this to be. The principal point iu an electiou petition is that it ex- presses clearly the objection complained of, and what is demanded. If it does this, however informally, 1 think it sufficient. Besides charging bribery and other corrupt practices against the Respondents', this petition sets out in separate paragraphs, certain classes of votes which are alleged to have been improperly received— for instance, persons guilty of corrupt practice and persons receiving aid as paupers, and iu two clauses, 8 aud 9, it complains of voters being received who were uot qualified without stating for what 36 cause they were disqualified. I had so... ^ ». , paragraphs uutil I referred to tit T vTl "^'^ ^''""'^ *^««« Aj^j^endiv, pcu,e '/f;™*; ^'^ ^'^'^ "E^ffl'sh form iu Wolferstanc, titiLusedfu'^uZ"' whfr " T"'" "^'^^'^ «^^^« pe- ptics I have SS :^^t,n^ ''T' ^'' ''' -^xxvii., a specimon of partzCalt^ ^ '' ^^^^^'"^'•^' ^"^^ Iti8truetho.se ckuses do '' n u' ^''^ "°' '"°^« P'*^'^^^^- allege in each cia^ L^ th ". ^'^ ^" *^^ ^^"^"'^'^ P«*ition, but this is don if two s^^^^^^^^^ ^'"'^ ^^ «*^-^ «ff i^^e poll, petition where t is Xd ^t thrT^^'^ ^' ''^ ^^'^ «^ *^« ^S^-l^pL» T ^^^^ and^h^^S™ i:^^^^^ !^ r « 7^^ *o he sustained the.udgeatthe til t^^ ^t^'^^^^ '^^^ to clauses which he may .fter , ,V V '^ ''^ ''^"•>^ "^ ^^e f-ther argument, co^^ej^^^ TtT r'^' '^' '''''^' for leaving all questions open to he / f ""^ ^ T^ g^"'^ ^-^^^-n expecting to receive the de L onf of hf t", ""^^^•^ ^^'^ ^'^^y Provinces, and in this way, befoT the trtl ^^ ^" " ''" ^^^^^ which we do not now possess ' ''' ^'^''^^ ^^'' ^^S^t .Tames W. Johnston, Esq. O C ■ Ti, « . , • against the petition is th.t ' it .rfl-~~ '^ "^J"'*'"" '"^"^S^^ -bstance from the r „ 1 1 tf " "Tf^"-^' ^" ^"™^ ^^^ xnade thereunder, and iL ^ ^'l^^^ H '', ''^'' *'" ™^- based, are that it does not nT T '"''' "^-'^^^^""^ ^^e thereof, that the sam is 1^- ' tV '" '''''''''' «'' '-^"-^ P-^ the Donunion of cCad^ ! 7 '^'' '^ "'^' ^^^^"-^ ^^-« ^^ that the Petitioner relies ; he Do ''"■' ";/:""'"^^ ''''^"f' - part or Province thel^ ^""^'" '' ^''^"^'^^' «^ '"" ^'h^t The petition is headed " In thn Vi^r,^- n verted Election Act 3873 \';'^^'':''' Court. The Contro- holdenonSthdayofrwfir;; .v "'""'^ °^ ^-^- of Pictou, Ac." -'"'^^"^^^' ^^^ the petition of Robert Doull, One of the rules framed and promulgated ,y this Court (the 6th; bt about these iu fVolferstanc, en of the pe- spects with the Appendix, page more precise, nglish petition, 3b off the poll, e end of the . o\ving to the than the Ee- struck off and iuffi'.'ient. be sustained ild be left to 'u any of the and perhaps good reason >^•e are daily 1 the Upper r have light 'tion alleged I form and i the rules lections are )r any part Jg done in thereof, or or in what e Contro- of Pietou ert Doull, (the 6th; 37 gives the form of a petition, which, or one to theUke effect, shall be sufficient. The petition under consideration differs materially from the form given, but I am not disposed to insist upon a too close re- semblance, inasmuch as the rules were not adopted until the 13th March last, the day when the petition bears date, and were signed by the Judges on the day following, the same day that the petition was fyled ^vith the Clerk of the Court; and the Petitioner may therefore be I'airly presumed to have had no notice of the existence of such rules at the time he signed the petition ; in addition to which the rules themselves possibly required the authentication of the signature of the Judges to give them the force of law. Leaving the rules then out of consider, ation, as effecting one way or the other the petition before us, we are called upon to decide whether that document affords the requisite information, and meets the requirements of the Act. This Court is a creature of the statute ; we derive all our powers from Cap. 28, 1873, and every case must bo brought clearly and unequivocally within the statute before we have jurisdiction over it or are entitled to deal with it. I apprehend that the correct rule by which we must be governed in adjudicating upon these election petitions, is that laid down by Mr. Justice Maule iu Tliome vs. Jaclcson, 3 C. B. 661, in regard to alffdavits, when he said " we must not by inference or impli- cation supply focts which ought to be distinctlv and positively alleged." The petition is headed, " In the Election Court." But what Election Court ? Sec. 2 of Cap. 28 interprets the e.xpression Election Court for the purposes of that Act, and declares that " the Election Court" for the Dominion or for the Province, or place in which the election in question was held, shall be under- stood as intended when " Election Court" is mentioned, but supposing we admit tha^ Election Court in the petition has the same meaning as in the Act, still we :!ive no information afforded whether it is the Election Court for the Dominion or for the Province, or place in which the election in question was held, that is meant, and the jurisdiction of this Court is confined to the Province of Nova Scotia, and this Court has no concern with m 38 anj tluug occurring beyond its borders C.n 2fi • ^ ,i poses to be cited as " tL r . . ^' ^^ ^^ ^"^ ■'^U P"v- thatActis ^'the ..n^ 7''f ^ "'^^'^^^^^ ^'^^ 18^3," and -^ election pi i^r::":''^^"'?^^^^ ^^^^^''^'"" '-p-^- Elections o^lj^^ ^jC^I C^^'"' '' Contravened i think that this Court s , "^^^'^'^^^V' and therefore referred to,-th t tl^^i^^^^^^^^^ ^^^'^^ »-^' ^^t havn.g been House of Connnons s uttw^^^^ TT' ?° "^ ^^"'^''^'^ ^^ "- ^hall present!, sho.v, J ^^ as I PHou" iscalcuJated in o . , '^^-^■P'-''^'' ^>ach of J«a«t, the e]e,.toral dl^ ie is T"" '^ '^'' J^onnuion, at ^^nnls of the several e J orati'i n """'"^ '"'"» *''« ele-loral districts and ne e .^ '!; '' '" "'"" ^" ^^e 7"rs in our rules whore save in "'""'"^" '^'''^" ^"'"e of trial, and ,b.,t an over gh n ^ " ;'"V"'^'""'« «^' ""*-« and not the count,; and S ' s .! T"' ^'^f^'^ - -.od "omentiou of the olcctoral di tr 't. " T' ^''^^""^'""'^ ^- election of the countv nf p;... ' 'f . '•''"'•actenzes it „« „n tie Petitioner can oxpe;, this' Courrf ' "l'' '" ^'"''-'^'' ''"^- 1 t,„s Court to entertain a petition ia 39 is for ,ill piir- 'i 1873," and isioji respect- Controverted md therefore having been '••tion for the '^liougli, as I " Coinitv of le point. I •it ar that the ^oiuiiiion of oned. But ■ ^V'"as the branch of :> answered a jxiiiit so e or left to 3et of (he The 4()lh irtt "nntil . Qnebee, 'SO of the nions, be !, each of ol'^cfora! ill ion, at L'ounties, orm the s to the i<-' same "Of ices named ion has f ns an ve how tiou in which on so iinportaut a point lie has nut fo]Io\ved the law, or by what right he assumes to sub.litute the county of PiJtou for the electoral district. But there is anoiher dilliculty to be met. What is the locality of the count v of Pictou? ^ Where is it situate? In the Dominion of Canada? li' so, in what Province ? Is it in Nova Scotia or any of the other provinces ? Wliere can we derive this knowledge ? Certainly not from the petition, tor in no part is the iu formation afforded. In De^fMi's case iB. and Aid. 24G, Baylev, .1. expressly stated, that'" the Court would not extend the judicial notice they took of the division of the kingdom ijito canities, to the particular part of counties and their local situation "; and JIoi.rovd J. said, " this Court cannot take judicial notice of the local situation of Oribrd- ness." See also Jinur cs. Tlmnp^oa, 29 B. Vi»l, where the Court refused to take judicial notice that (he to\Ner was in London. Also /'. ir. lltx i's. n,>,„,.,r, and Thorn,' r,. Javhon above relerred to, where, although the defoiidaiu described himself as of No. 57 Bedford Bow, Jlolborn, in ih.' county of Middlesex, the Court held that he had tailed to show thai he\\as resident within the jiirisdiciion of (he Court of IJetjuests Ibr the Co. of Midillesex, for at the time (he action was brought he might have resided in' another part of lied ford l\\,u, whi-h may be in (he city of Lon- don : adding, "for the Court cannot take judicial notice (hat the Court ill Kiugsgate street is tli(» Court of K,.,,ueMs for that couiily (Middlesex)." Applying the principle of these cases to the matter iM.fore us, (his Court cannot take judicial not he in what rro\iii(c of (he Dominion I'ictou is located, or that it is situated wiihiu our juriMliciion. nor (vrtainly can ue noli, o that the electoral districts are the same as the' counties ; and if we could what then ? Js this Court to go a step further and wh.'u the Act, which is ..ur auilu.rity, divides the province into electoral districts, hold that elc.torul distriHs and counties are conver.lble terms, and that it is immaterial w Inch is u^ed. Ii wasesson.ial that these liicts should have been positueiy and distinctly all,>ged hi the petit U)!i, and it would be a dangerous innovation to Imhl that delects, such as these, could be supplied from inlenmcHs or by implication. Section I(» prescribes by whom the petition is to be prosenled— it must bo by some persim duly qualiHed io \oto or be a candidate at (he elec(ion (o which such petition relates. Now to wha( election dues the petition roier? The heading ot" 40 the petition affords no information ,•« vnM i , lead, while the r will 1 record to be produced before this ctur, T^nh^l^'T " occasion luav reuuire n..,l f,. v, , auotlier tnbuiuil, as tries tbe petiHoul llir 'p ^ : J^^ '^" '^i.;!'^ •^""^^' "•^- the obligation rests on us to see t at T ^ <^^«"i>"ons ,- and defeated by undue laxlt o ^ ''ZTV' Tl''^ "'^ "^^ to hold the scales e.pallv wX d ""A""-^'"' ^'''^ ^^""^t i. allow the Kospon.lentto 1. "; '"""" ''' °""^' ^""^' ""t to "ny tlin.sy ob e -and ' -"-^uences of his act on Peti.ionor^.i4s,;Le:l J ';r:;:;^V"^ '"'''''" poMerHof the Court to inthV. , heUn-o he n.vokes the senlativ... '""'"' "'^*'' ^^''"^"'^ l'-'""i-^ <"• a repre- lu m lu accordance with the i(idmn.-.Mf ,,<• /I n . the following toru.s .^'^ "" ^""'"'' "" "'•''«'• P««««'l . On arcfmiicnt of tli.. nrdin ,?:;;; ';~:>,™: ''>"'■ '"■■''™'-. «n.i ivi;,',,';?,',';,'!!';'.', ^.f::.';:-' i-r;™!*" i'^m ...... !„,-.,t,_,r!,- and twi-iifv-tivn i>„ .i; ...n . -.' -'•••••eii. i.;>iii iniiti,ii-,. t'leveuth object iou nv and tWfiiiy-two I.c disall l""-HWij.l, twcntyofllu. petition 1,0 "w.'-l mi.l ov,.rruIo.l;tl,„Mi K^ nilowoil Hiui 41 ciliated to mis- 'he information where referring ion "; for these 10 Act has been efective in the Teliminary ob- 511, 1 have not a the JVonrich i words of the 'Vhich provides ion Act 1873' one is niore I ai)i)rec'ia(,e 5 petition; bnt al. What is annot sui)plv Ml.: t "!■ co>t. l-.,r tlu> present reseUr "^ ' ^'" "''"'"'"' ^•'"' ^i^^^ticfn ».it.^d ]()(,h Aiiirii^t, 1874. By the Court. Benjamin Ri'ssbll, Clerk of the Court. ill bec.mie a tfibuiial, as Judge, \\Ji() unions ; and tice are not his Court ia inml not to his net on ro that (ho invokes the m a re[)re- der passed 1 lierein, it raj ills J'rnrii ' inriiiMjvi', I; llmt fhe i iir(;n cvmekov r ,-. vs. N-AMCia. McDonnell, J^espondonf. ''•''M'oti.ioM in .!,is ...so wns filed intl.. following Ibnn :-- l-N Tin: KT.KCTION COURT. T/w (', Art, ]S7;}. '^l-,,Hi,i,.„of ll,„d>CHmeronof Mabou, i„ ,I„ Countv of npappotfully showelh : '";■!'•■ »■«» i'"'i»' .,!'■'■„ I,,:.,.,"'.:: i",";,^ ;■" <»»'^- 1 -"r (■;„„- ^'"'■1'., «™ ii ill i"ii-» Mr"fi,,,''iir,.vi;i ,'.',.f 'I- '°o '■'..'■'■ii'ii"" tiiiT,!,.. ■'""■ "'■" "'"' '■'•■■■^ "^^'f^^^".^s^^z^:iS':i:z 43 idoiit. " sufflcietietf of the C(mrt. ' ? I'orin ; — iiioii.H for fhe '''il'tli diiv of f" Cotirify of nniiip is . on t!i.. Fiftii iiHl .viiiir r..- I'lH'd till' said if snid rcfiint till' ClIlllKlii 1).. 1874. tt'ptors of (li,. •f to ft'i've ill [i ."•'('tioii (it "•'i. I'litiflcd, iiiciiilicrH 1(1 •••t with tlif il County of !•■'<' of (.Vim- >n thorrfo, ifli list wft.x I'l WHS the "SrSz ;;r;,n;;i-s;;,;:!f ''- '"■""■ "'■•*- "' -"' •■ ^' «■ ■> "iin,..s„f(ill tliosc^O..,d,as Avho v> n I ,7 "• '^ <'""<<'"it''l th,' 'I Imt tlll> IJcturilitlir Oflicor 111' tin. Pnnnt,- c r -aid el.rrlon us,, tli? lis so . ,,1 „ ' ' '"y'Ti-'^ ''"l "ot at llir. -!• and .mlv list' Im .i^^':!' . ' ^Z"^! '-l'^'"- "^ . ^'^i. ^vhi.■ll was tl,.: I"'"l"-i' and .mlv list <,f e « tors of suVI ^V'^ "^ , . "'• ''''"•'' ^^'is tli.; I'.'t n ,tNvitl,st,,hd n!r tl . en ,M,.. ' l'/""'"' 'y.'^^'.' '"'' ^o vot. tlineat, l.v an.I ill.^rallv us^i li< f i"., r; , •• !""■ ' ^''<'"n'''- 1"^ in.p'opor- -ppii.'.i c,ti..s ti,..;.i,'\!: ,:,;!, i:^; ;;' ; -;;; --;* "i- in i87i>. L, I" fore iiHintioiied tlioM' only of t i.' .d.., t, , • . /^ '-'I't'tion liriviii- -..•0 ..nt..,vd on said list 7:i^\.:!;:i:;i::i{;:[i,;:^'y' -"- — .1.-0 distn..ts. .o-.u.:i!;u t" i; li t' ori8^2'. ;; ^::^"";;'; •;:: •■''■^•^- <- to list ])rci)ared ill 187;} wind. ,v,Mri>.-* ' ^^ '"''' 'ifcoi-'lm^r to <'l<>ftors HsJJ] accordin.r to t > I 1 '«"i Kitv." the niniilu.r of tin... are only mdeS^ t Z fenc"" '"""*'' '"' """^" "1' '" '«''' < 'ountytium tile list of 187? "^^"^ "'''"" 'i'"^'"''^'' ^''"^-t^'r^ for sai.l m" "S;';^;.s^2l" "'' '"""^' '''^^"""'^» --^y«- petitioner at S(ll And yonr IVtitioner lost sai.l olwtion in oonsooucnco of tlio ill,>m.i iinproiKT conduct of the KctnrninT ()(Hp,.r in , / ^''^ > "'Wi ant HUd iniproper list of elector! tl™t." " '"^ "" '"^'«"''^' ^'^'W^ Wlierefore your TetitioniT pravs tliiit it r ... i,„ -i < • , . (Signed.) (HiRned.) j. y. r,tchik, Plainlif'H Attorney. IJuou Cameron. The following proli.niiuvi-y objoctious wore /ilod ou behalf of the IttiHpoudoiit :— I 44 .fwr.' "■-'■-'■.• H..,....,.,-,: :.„.„., ;m.„c„„„„ Dominion of Cinuidu, ) Province of XovaiSiuMu, v To Wit : ( ('fd'Sf. jiivuii Caherox, PetitJouer, I Samuj, McDo.v.vkll, Rfispondcnl. •iicato tlunvun. '"'""f t'lJ-e ctioizaucH uf tlio .>ani.. or mlju- "a.l.. ,M 187;; was not nunh i i ao 1 • 1^1 ,, ''. ''"'""^'""' ^''^'^ t'"' H.^t " i^72 first n.a.ie. nnrl a i t ; d j/l ; ^^ " 'f 'V^ '^"*'^-'l tl'^t ti„. s -thHiM. thereafter t^b.''^,:'^^;^;';;;-" d? "'*"'" "'"''•■"'' ^^ l"-"vid- if .|tK 1 11:;;:;::;;^^^ t;;^,;!:: "-'- "^v-ion or ...... of ana siSIC'SS/SJHi;;:;;:., - '-'---:.. , ,,„ Halifax. i'4th March, A.I)., 1874. (Sif.flle'd.) II- lo the Petitioner, ''''''''■"'•''''''''•'•''''''«/*"/''>'>' ',m;W i''ovf named. ■ / ' . Thopn.Iiminnry objections nvo.v ar.n.c.l l,v I v r,- ■ , ^. .. ..r, !.«[)ai{ oi the Poiit oniT anrl R I iv .■ . 45 »r t' ^ Coinii V ■itiiir or iidju- ■'t (if tlt'ftiir.s ii.xf of Coni- iiTc ninths r'iiiiiiiiii)ji of tli;it tlw" Ii.*t Iiili' no liiii tliat tin- list iisp(i !it said 'til Ml,. l;t>t 1 il).',,t r:is(' I until tiir pu-.-in;,'- of ;'"> ^il•t<)^a. ' i'* prnvirl- ' rf'tiirn of ^>r st'ciion iitrov*'rtf(j 10 CTtiin (fitclii.- Il).-f(„. The Court now (August 17th; delivered judgmont : Alexander James, Esq., Q. C.:— The first objeotiot^ to the petition in this case is that this Court has no jurisdiction or authority whatever, not being a Court of the Dominion under Sec. 101 of the British North America Act. I am unable to perceive any force whatever in the argu- ment in support of tliis proposition. That enactment author- ized the Dominion Parliament to constitute a Court of Appeal and such other Courts as should be necessary for carryin"- out the laws of the Dominion, while the constitution of 1^ vincial Courts was left to the Provincial Government under Sec. i)2, sub-Sec. 14 of the Act. This Court is constituted by the Dommion Parliament for the purpose of carrvin.r out laws of the Dominion relating to the political governmcmt of the Dommion. It is true that the Court sits and acts in a part of the Dominion whose l).)utuliiries made bv the law coin- cide with those of the Province of Xova S - -no„„t of fnuKl'o. fo,- L 'V ZT^"^' "' corruption, ^"fiico to avoid an election n^.h'?.'' "' ''''^'"'^' ^^''■'' "--■'-t hy that section or ;oH ''^'"^ "^ '"•-'''-' '»""■"" of Canada. "''"'" '^'"'^''^ "^' the J)o- Jf this position he Round wo \vivo n^ ;;•- petition, hut ou.ht to di ,ni t Z '"""" ''' ""^"••^^'" '«^ want of jurisdiclLn It i? '. '''" '''' ""'^'"'^ ^o do. "honid eon.i'de.. what ""re h,"'" ''"'^^'•^''^"^' ^^^'^ we ence not onlv to tl o V, '""''"■' "^" ^'""^ ^ourc in refer- ^ioubtless arise' hereafter ih' '^■'^ '*^*"^-^'- "•'''^■'^ will transactions which have alreadv''^ are not involved in the recent elections, Home owi^^^^ •" *'"-'-« of "^this Court to coniider '' "^^^^' '=^" ^^^ the province comprehensive. It was wr tt 't 'f ■'"'''^' '"■^" ^"^ ->y statute. It grewuridli , p'*^' nor en.hodied in t'- necessity of moetinlf a"d turdh '""°V""' ^'"' «^' anomalous proceeding's afFec in. ,"'' " ""•^' "^'^■"^''^d ^'^ ;;ofloctin, uccuratelv th i' , I'^r":,^'' '^ '";""^"^"'' Pubhc policy of a people ^^ovorned ! L '^'"''''''- ^he u't.ons must necossari y nH.ui e l^H '"'''""'""'"^ '"«t'- accurately expressed i;[ e^J^' ol ' r'''"'"'" ^'"'^'« ^o fias real smd ■lin and -ul- latiou. "f'dent IiaK vor at all liat in our i« letter of set aside vitiated In- eliapter 27 corruption. Jident, will ' I)rovi(lcd 'i' tlie Do- <'nter(aln :ed to do. that we in refer- ny other l)ifh will olved in :'Ourse of province mona in r^'o and Jdied in , out ot ccurred iument, . The ) insti- )ic'o bo policy ' those ' Jioni didate 47 u-.-.o po..ossod the oonfidenc-o of a niajoritv of the electors was, and should he declared, a void election. Another that whenever a ca,.di\ for the trial of Controverted Mections bv the Court of Common' peas. 1 think no case can be found deciding that the fundamen- 1=il principles of the Common Law, relating to irregular and cor- rupt elections were ever abregated by the several statutes whirl, were passed from time to time on the subject, but on the con- trary the ( ommon Law was always recognized as being still in lull force. A feriher change in our Legislation has talcn place both in I'ngland and u; Canada. The Lleclion Committees have been abolishe.l and independent legal tribunals have been substituted tor them. Jhe qm-sfiou now arises what are the pouers of this Xew ( ourl-. Aretheythose that exist,.] in the Parliament originallv and afterwards n, the cnnueittees under the (Jranville Acf> l( would be a great misfortune If no curt existed with power to set asid- an election, obtained by the .,,„sesf fraud force ur error for want 48 of legislative enai'tment u-l.ich must be the case if wo adopt a. narrow construction of the statutes, aud throw overboard the principles of the Common Law. Jf the powei- of this Court were so limited, our House of Commons would soon cease to represent the people. We would be governed by the violent corrupt and Ignorant elements of society. No greater misfortune could hap- pen to a free people. It is not necessary that a statute which abolishes a tribiuial, so necessary to the well being of the country and establishes another in Its place should say in so many words that all the powers of the old are vested in the new. While there is not a word in the statute to restrict in any way the Jurisdiction of tht» Court as contended in a-gument, there are several sections which clearly Indicate that it was the intention of the act that this Court should avoid elections for ottier causes than those mentioned in Chap. 27, Sec. 18, and were it not so the preamble alone which is in- serted for the very purpose of pointing out the scope and inten- tion of the act is quite sufficient to show that all the existing laws relating to Controverted Elections, are to be carried out by this Court. Its language is exceedingly comprehensive, far more 80 than that of the English Act und3r which many ca.-.s have been settled in whole or in part upon principles not enacted in the statutes. For instance I cannot t-'nd in the English Act any pro- Tision for a scrutiny being held further than by inference from the section corresponding with sections 19 and 54 of Chap 28 (Sec 11, sub. sec. 13 and sec. 53, Wolf. X and XIX.) Yet the English Judges have held scrutiny after scrutiny, under those clauses with- out question or doubt. If that Act were const rued as it is alleged ours, should be a large proportion of their proceedings must have been wholly illegal. Fortunately we have the report of numer- ous recent cases tried before the ablest Judges of the three King- doms, and a h^v extracts from them will be sufficient to satisfy us that we are by no means restricted to the causes for avoiding e.ec- tions prescribed in Sec. 18 of Chap. 27. Had that statute never been passed, can it be contended that any Court, having general power to try Controverted Elections, h&^ not power to avoid an election for bribery by a Candidate or bis Agents ? It is my opinion aft-jr mature doliberation and ex- 49 .mination of all t},n authorities, cited and others which wore „o^ ..^.i that t .is Court „.y declare an election void for Z IZ Z to u huh lam about to refer sheu- that the Court of Comn.on pleas .n England, of which this Court is, for the purpose of t , ! Controverted Elections, the counter part, claiu/ and exercise ^ F-- o a..,du„ elections, „ot solely for causes speci 1^ t ^.U ute, but f.r any cause which has interiered with the^ri^ t freedon., or ,..,,,,,(,- of elections, and which has been eco- ni 1 LO. arni N 40) iUm)N 3Lurnx :-" But it has long been h^ld before these Acts of Parlian,ent passed at all, that by the Com w.s < >,f r . '^ '^ ™"^^^ ^® P^'«^'-'^l ^i'^'t there vast.cat,ng,„ all directions, on purpose to influence ^<,-.rs fhat houses uere thrown open where people could dri.K wi.io^'p would he earned on contranj to the principle -/ the law. CheUeuham case 1, and H. 62.) Petition alleged undue in- fluence, d.d not contain any allegation that election was "id"t Common Law, on account of general intimidation and did not pray the seat. ii.vnoK Maut.v :_.. My impressfon is that e" i- dance may be given to show that the election /. .oid at Con,mon Law ^c. .,v. Mn the event of its being thought fit to relv on ev.l...,,.>ofth. kind ***** another parngmp ludbr " ; :''''"" "'' the objection to the election suouid be general violence towards voters." Coventry Casea, and //. 105) WiLus J., remarked that it might in his opmfon be laid in the petition that an agent cf the u>ordd he sufficient fratul at Common Law to ,et aside the election. {Ihid. 107.) In regard to bribery he said " with respect bribery as well as with respect to treating, I shall ever hold^t to hejc wise and heneficial rule of constitutional la.. .ri:,nn^MU. flH- a place as ,),. ,-<..nlt of nn oWlinn in' «-hu-h h.s as..,l: is gnihy of bribory, than a por.on ca.i (airl. dai.n >< I>n/o . ihc person whom ho ..mploys fo ri.b his horse or sl,M.r his vessel was held guilty of foul piay >n .he cours ■ of his en,- ployMU'iit. In the S,^oM CW..(1,0 a>uf //.. 1^]4) B.hox M.Kr,x said 1 aCandKlare dehberately and of purpose, runs counter (o an Act oN arhument, which directs a thing nor to l,e done, I think hat Ccnnnon Law wmop,rnte up,,,, it ,u,d th^ elrelion mil he void However, I «hail not, de<-ide it myself, hut if it .s noeessarv [ shall ffrant a case for the Court of Common Pleas.- J„ this rise" the eimoner contejuled that the conveyan,. of voter, was illegal but he Kespondonts counsel urged that the violation of the Lt nught possibly render a Cand,date liahle to a. indictment, or\.o>n. pnmshment, but nothituj mnr.'. Bladhum Case 0,0. and /f.-'OU) Whiles J. '^The corrnn, practices prevention Act to n.y mind does no nnnr. tkan ln„Zn rn veryd.t^net U-nns tkat .kick kas been al.a,. tke undeJu ,fIWUa...a, or rat or the Connnon Law of the Land, with ,t^ pect to the elecfoa ot members of ParUa.nont ; that is to sav th^f. .K> .natter how wellthe member -nay have conducted Wl" he elecUon, &c., :tan authorised agent of his, a person whom has set u. motion to conduct the election, is in L cour e oThi W, gudty ot corrupt practices, an election obtain^ l^^ such ciroumstauees cannot be maintauied." We are told that our power is limited because the legislation f meagre But if in England where the statute law L^t^ "; ful and exphct it is held that the Common L..w is i„ ul r' ' and so tar trom being abrogated has been but cu . t d ^^ loped by the statutory enactments, which are ind-e H or less than an autkorUative expo it ions otJlat T' ""'"' Common Law, how much moil sho d t e t " •''' '^' here where we are without any e"^^^^^^^^^^^^^ '^"^' '^PP'-^ for intimidation, violenee, l^Z:^ T^ZX:^ ""''''^ drunkenness or gross errors Ti ^ treating and renders the CoLo:r.\,f;rT"-''''"'^'^^-'^^^^^^^^ :^arevaluabIu.o.s..... ':.l!?:'""""'^' '"'^^'^ "PpH-b!e and 10 CO us liKiu to our fellow subject a iu Britain. '(> claim to be » an ('li'c(ii)ii in .111 tliirly (.•liiim Iiorse or stciT '^■' or hi.s eiii- M.Aiiii.v siiid. counter (() ;u> di^iie, I think •II will he void. 'essiirv I shall this case tln^ was illc::al. 'not" the Act meat, or some The corrupt hail lull doiitu nders/ood lam k1, with ms- •^ to say that J iiini8'«]f in Jii whom he oiu'se of his [lined under cglslafion IS exrecdinglv 1 full force, i and deve- )tliini? more always the J jaw apply an election ating and f^egislatiou icable and in. 61 The Coinmoi) Law priiici|)\> applicable to this case I tak be that every election in which 1 h )y mistake or fraud t :iMng the support of a to ic caii(lid:it(> niajonty ot duly (pialilieJ voters, I iiled to be elected and relurned, must be set aside on his . las )efilioii 10 (la, proper Court; and believing this to biMhe proper Court I ])roceed to consider whether this petition, if its allegations are proved, IS sufticieut fur the purpose. Th e oidy question here is, do^s t ijregularity so sut)stantial as would have 1 moil |,aw, under the principl > I h election. !io ])e it ion set forth an leen sutlii lent at Com- iive recognized, to avoid th It is alleged in the petition {] alphabetical list of the electors of I elections tor the House of C the Clerk of t he Peace liat in the spring of ].S7;J an nv(n'uess, (pialiiied to vote ai I) Omlnion Acts for ]S78 ; that sucli list oiniiions. was made up and filed with as provided by ^ec. ]() of Ch. 27 of the ;ill the the contained the na was persons (jualilied to vote at such el l»gal and only lo"-,! list on which the eh mes f)f iectioii have been run ; that forth d and that it 'ction oiiuht to tl til <>: iiqiig tills voting list. ( ey mean the same thing,) the .Sherilf ad.M.led tl previous year; lliat iu two districts, ^'os. 11 1872, which was used 1' and 1' comprised the names of :i2 Of register, He li.>t for a the li-i for 8 persons, far more than double the number of voters, (tlie most of whor some sudden and u(ie.\|)lained short tod calamity, wer,' reduced i year from comparative atlluence to indi leprive them of their [jolitical privil ii one seiice so se\ere as «ge III elections), no 1 ■-■ lOM' whole ma- than 818 of whom voted for the Respondent, w! joritv in the election was 121. Similar discrepancies in the two lists in oilu-r districts are set out, and it is alleged that for the whole count v there were ^>S4 more qualilied voters on the list of 1872 than on that for 187;5. It was argued at the hearing that these statements of figures were irrelerant, but 1 think them the very gist and essence of the petition. The real substantial diHiculty on which the petition is founded is not thai tl ' wrong man has been returned. Usiii"' tl le wrong list was used, but that, tl le no cause \vhafe\er for a^oidi ic wrong list would be ng an election, ludi ss it allccti'd or 52 may have atteeted the result. If there had been a ditferenoe of only tea or even iifty votes in the t^vo lists, the Eespondent, bemg elected by 121 majority, would elearlv^ be entitled to the seat notwithstanding the mistake. Tn the Gre.nod- ccm (1, and n. 249,) there were verv great and material irregularities' in arrangu.g the polling booths and the pla^-es of voting, but there was not any evidence to show that the fairness or the result of Hie election was at all attected by the arrangement that the Nhenit did make. Petitioner upon this contended that the Nherifi had acted cont rary to the statutory provisions upon which t.li.s matter proceeds, and that the election ought to be declared void _ LnnI ByratAe :-^^ I ,hink that the statutorv provisions are of such a kind that it would require that .o.^etlun, .u,ch\nore should be ,nade out than merely that they were transgressed n. good laith and without any serious cons..,uences, to avoid the election Here the ['etitiouer, although he does not charge fraud, alleges that a number of uncjualitied persons were on the hslpfar more than sntticient to reverse Ihe inajontv,-aud that m tact he lost the election in eonsequence of the irregularity. It; this be proved at the trial, as stated in the petition, the eleetun ought to be declared void, as 1 have no doubt it would l-ave bee.1 bv any election committee under the Common or C.,n- Hlututioual Law of Parliament quite independ.'nilv cd auv ;H.actmeut It u ould be e,p,ally a .-anse for av.idin,. the election it >t wore done fraudeutly, although it could not have aflected the ;'«sult It IS admitted in the ,,etilion that thc-e was some .rregulanty or defect in ,ho list of 1S7;J, but it is not adnn-|led that,*; was an illegal list. What the nature of tb. irregularilv vvas ,t ,s impossible f„r us to determine, as it is not sel out ii. the pot.l.on. It may have been an error of so gnu ... a character as to brins' it within the words of the stafutefl^ S. 2ud series app. elections, sec. 27, page 7.8) whi.-b enacts that if no register hasb,.,Mi "made up" f .r the year, the list of th. previous vcar shall be resorted to. Hut Hofi.r fro„, ad.nil (iug that the objec'tion was „( a grave or serious character, the petition alleges that' it wa- prepared .n accordance with the law. which wer. then iu ibn e iu t " I rovmce : that il contained the names of all the quaHlied oloctors: that ,t was dulv (il.-d ,,U], „.,. Clerk of ,1,. IVacc and o3 'irterence of espontlent-, tied to the case (1, 0. iiliirifies in , but there le result of tbiit the that the [)on which ! declared provisions much more insgressed avoid the )t charge ire on the -and that iritv. ition, the it would 1 or CoM- ol any 3 election ected (he ns some adiuidod cgularitv I out iu lia racier d series, ' register lus year objection il i( \va(« ibrco iu >|unliiii>d aoe nnd was " the regular and proper and only list o;' the electors of said "County qualified to vote at the said election." If these statements are proved to be untrue, or if, notwithstand- ing their truth, the Respondent can shew good and ,-ulticieiit reasons why the Judge shall sustain the register of 1872, it will be open to him to do so at the trial. At present we cannot, in the face of these allegations, presume that the irregularity admitted in the petition was of so grave a character" as to render necessary the adoption of a list so extremely liberal in its heard in p.-rson or bv c„uum>I. a> if he were a Respond 'ul. I iiin of opinion that tl,.. preliminary objciions an- insum/uM.t and ouL'hf to be set asidi . _ ll.m. W.Lt.ivM A. IlKNuv.— I agree with the couch.sion ar- rived at in the iiulgeiyenf Just (leliver..d. that this case must g„ i„ trial to as.erlain the fln-ts connected with i.h,. ,,,.,..,..,!,:,,,,^ ,„|.,,,j 10 form registers of voters in the C.unt v. The ',\el umler which the election was held. (( jiapter L'7 of the Statutes„f Canada i^lli), rHerh to the Slat nte . | >, ^a S,oti., 1^6:!, „„d ei ,,. ! s tjat 54 II among othors, the provisions oi" section 27 of Uie last moiilioned Act should he applicablo lo siirh i'uture lisls as are provided there- in. Ins'ction 10 of the first mentioned Art, pr,.\i>i,.n is made for amending and addiii,!,' in a preseribed manner to the lis! s or registers then existing, " within three months" from the passing ot'the Act. Section 27 of the Nova : cotiu Act, referrrd to, ])ro''- videsthat, "if from anv cause the regi,>ter of electors, for any " polling district is not made iij) in any year the register last made, " shall be used in its stead for the purpose of the elec.ion." ThJ petition in substance alleges that no list or register was made under se.-tion 10, but that a legal list was made in the Hpring of J873, of electors qualified to votetir miMubers to serve in the House of Commons, and duly tiled wiih the Clerk of the Peace, and that it was the ()«(// list by which electors for that Tuunty were qualified at the election in question ; and, that if the list had beenma,'o under the lOth section before mentioned the names, would have been the same. That the Keturning Officer however, improperly failed to use the list so made iii the Spring of Is?:;, and instead thereof used for the purpose of tlu' election, a list op register made in 1S72. The petition und.Ttakes to give u uiiiiute detail of the cmiparative jiundirrs t.f qualified electors in certain jjolling places in the County on the two lists. It further alleges that in conse(iuenceof the improper list being used, the IV tioner lost the election: and he prays that it may be determined that the Kespoudent was not duly elected or reiurned, and that the election was void. Of the live objections (iled and argued tlu* first denied the jurisdiction of this Court to lake cognizance „f su.'h mutters, because of the incapacity of the Dominion I'arliament to .;reate such a Court. I prepare.l a judgem>nl .uiilis point in the "Hants" election case where the same objertion is luken, ht-- fore considering the politimi and objections In this case, which 1 will shortly read; and I n,fer to that for my decision herein on that point. As to the two next objections, I will content myself by saying g..nerally that I think the con.plaint of a wrong' and iHegal list having been used ut the election, is J t'ldidt snfliriently iRjuIe; ifud if sustained by necessary proof, mav and i tiiiniv should, avoid theeleelion. If nnd-'ra fair consiructiuii of (he two Acts, taken to}?Htli.>r the list made in the Spring of IH7;5. 55 in the slioiiM have bwii the one used, h:it, \vns not, then it seems to me the election is voi.l, no mutter ho v its iiS3 tsiulel to proJu'e the return of either of the candidates. Whether siirli did or di 1 not produce a result either way, wouhl be an imiuiiy difli -uifc, if not imp Kssible, in most cases ; and would depend amon^'st otherthinL,'s upon evidence months afterwards from a host of excluded (deetors as to the Candidates for whom they intended to have voted when the election tooiv place. Such an enquiry 1 consider upon that and otlu'r important consil .rations impracticable, and not one to be male on the trial, and for tlie rj;isoiis givju, 1 consld n- it ([uite unnecessary. The position taken by Loiu) liAitcoPLK cited by my learned Associate as to the ])ollini,' booths dois not, I. think, at all, affect the positU)n by me just taken. In that case i-he quali- ficalion and individuality of the electors were the same and al- thoiii'lv i.me irregularity as to the position of the booths wan f- hut .hal irregulc.rity did not appear to affect the result, it 'V. _:'.;.Jged that the provi>ion for the booths being only f//m'' ^^''^I* J. This Court is not Provincial, it is Donnnion. It was con ^t.tuted for a purpose Hi,h which the Local Le.islatne .1 oers 101 tile Itouse of Coinmoiis '' nnrl fl„. i *. •. . U. )! 1.111.1,1,1. iliB t„|,„ „s„||,|„, J . , Uoiiiiimm Couil will, bn„„.|, fourl, h, ,|„. 1,Z ,, '' '" " the D„,„i„io„, ,W ™„>,,iie„™ .,,.,.,,:: IZuT' lOsniaiRo „„l,. „f „„„ter, „ccu,.ri„„ „, ,1, "n ' '"'""'■' ««tition, and as being argumentative, the fact of the list oou- taiuiug more names than the list of a former year fur the same dis- trict atlbrding of itself no sutticient grounds to disturb the elec- tion. The petition alleges no complaint against me Respondent ; butcharg(;s fhatiio alphabetical list wis made upas reiiuired bv sec-. 10, Chap. 27. 1S7;{, that a list was made in the spring of 187;3, which was the regular and proper and only list of eleitor.s qualified to vote at the election, and that the Beturning Officer improperly and illegallv used the wrong list at the election, and' that the Petitioner lost his election in conscj-ience of the illegal and improper conduct of the lioturning OtKcer in using an irre- gular illegal and improper list. It will be perceived that the Pe- titioner here does not claim that he had the majority of legal votes, and ought therefore to bo returned, in nhich case a'scrutiny might be hard, and such allegation in the petition is neces.sary before the votes^cau be scrutinized. Ln;,7i aiul L- Mnrchant Law of election, paye 75. "When the petit iou alleges (hat the uusuccessful Candidate lit the elect i m had the majority of legal votes, and ought there- ibreto bo returned, (he m.-tnuerof aseeFti-iniriLT the iruth of tlie alle- gation is by a scrutiny of the votes." So Wolferstein prnje 80; when the Pelitioucr claims t' o seat for the uusuccessful Candidate al- 58 Jewing that he h-ul in fitcHhe .najority of Jegal votes, tl>e Court- Mill proceed with a srru- i,, v. '-The statement, that the Candidate had ■- '"njoniy of legal votes i« necessary." The Petitioner's whole -n.p UMt resolve, itself into this, that the Ketnrning Officer . legnllv and ^properly nsed an irregular, illegal, and improper .St, and the Keturnn.g officer ought, therefore, to have been made I;es,.ondent u. order to atlbrd hin. an opportunity of defending hn.el . .Se<.t.on_o2 of Cap. 28, 1878, provides that where an eloot.on pet.fon under that Act complains of the oonduot of a Returning Officer, such Returning Officer shall tor a I tl.o purposes ot that Act, except the admission of Ik-s- pon.lents ,n his place, be deemed to be . Ik-spondenf TUy..,,u ,^,, uy I have bad is as to the practice to »>« adopted. Ought the Petitioner to have made the Ke- tmnn.g Officer a Respondent ? Is the petition void on hat account or can the Court order the Returning OtKcer to be made a Respondent ? I do not find that any Act refers to this or regulates the practice. There are two cases bearing on the subject that I have found-one the Boron;,?, of Warrini/ton, 1, 0. and 11. 42 in winch the Mayor of Warrington was one of the Respondent's but whotherongn.ally one, or subsequently added, does not! appear The other The Tcm.,ortk case, I, 0. and H. 11 in wh.eh Mr., ustico Wn..K8 intimated that in his opinion 'the Mayor ought to have been made a party to the petition if evidence was to be given to implicate him in any way. Ho would then have bad an opportunity of defending himself but what action was taken in the premises, did tot trans-' pno It will be observed ,n this case that the Mayor was only incK entally implicated. It was proposed to ask a witness a (incs ,on with a view of proving that the Mayor was impli- cated .n the corrupt treating, and tl question was probably not pressed as Mr. Justice Willks said, " I will not call upon the Mayor because I do not wish unnecessarily to put him in the position of a witness-as he is not charged in the pe- tition Here the whole gravamen of the charge is against the Eeturning Ofhccr, he is charged with havin,. illLaM. used illegal lists and having by the use of such lists oc"c.rsion- ed the loss of the seat to the Respondent. Wolfentein les, tlie Court' Candidate had t loner's whole irning Officer and improper ai e been made of defending s that ^\here lains of the Officer shall j^t^ion of Kc's- -Respondent- practice to ade the lie- ion void on ning Officer at any Act hat I have <' Jf. 42, in :)spondcnt'8, 1, does not l IL 77, in opinion the petition if • way. Ho ig himself, not truns- r was only witness a was impli- 8 probably •tcall upon to put him n the po- is against : illegally I occasion- ^ol/erstein, 59> 2Mr/e4, "The jurisdiction of the H ouso of Commons over Returning Officers does not seem to have been tak by the late Act, the only doubt b complaining only of the conduct of the Rot en away cing whether a petition should be presented to the Court of Co urning Officer m m on ]5leas, as 1 Dei 11; an election petition within the meaning of tlio Act or to the House of Commons. " It is appreiiended however," says the author, "that the former ftlie C. P.) would be the proper course, at all events in the first instance, and were the (C. P.) to refuse to adjudicate therein, a petition to the House of ■ Commons could be subsequently presented." So page 42, speaking of the old law he says, that Returning Officei^s com- ' plained of in the petition, were allowed to appear by Counsel though no relief was prayed against them and they wore liot parties, but adds, this case is now provided for by sec 51 above referred to. The words of the section,— thatwhero an ■ election petition complains of the conduct of a Returning Offi- cer, he shall be deemed to bo a Respondent,— at first sight ac- casioned some difficulty as to the meaning to be given'^to the ' word deemed, whether the Court were not bound to regar.l him as if ho were orignally a Respondent an-l allow hi'ni to appear by Counsel, &c., and this I tiiink would be the coiii-so to be pursued where the Petitioner comulaiued incidentally of the Returning Officer, but that, where the whole charge i,s against him, he ought to have been made Respondent in^'flrst instance. Tlio Canadian Act makes no provision respecting the list or the register of votes. All that is provided for in the P.'o- vincial Act, chap. 2S, 1S(3:], in the Appendix to Pml series page 758. Now, this Act does not void an election, because the wrong list was used. It declares how the list shall be made up and directs that if the register of electors for anv polling district is not made up in any year, the register last made up shall be ured. Sec. 4(5 provides that the slieriff shall furnish his presiding officers at each of the polling districts with a true oonv of the spy i*tors fi)r that polling district : — sei' 57 that the must the a,ssessors revisurs and sherifl'for negl,>ct of dutv. I'nder the presiding officer before an elector is permitted to vote, id the name on the list, and penalities are imposed on 60 old A.t in EnghuKl the irregular holding of the B.rrister'« Court has been held vitiate votes r.gistei^d thereat .nH eo,n,nittee struck the. otf the poll, (k.y^llf ; J ^^ these cases have come under revie^v ou a serutiuv-u threat no s.rutu.y has been demanded „or any vote aslced to be 1" k I have very grave doubt whether under all the oircum.tances 1 rtLmr^^"''"'^'^^ .i^'Hsdietionover the .a^^:^ Micthei thelet.tioueroughtnottobe remitted to the House of p.tnon vith very large powers, his Province is to determine : : ri^:rtf-'v ^"^"^' ^^^^^^^^^ -"•'^^^'- *^-^^^- ro th« t" ^"'•^•'^'"^.>^'^«t lightly interfere with or con- trol the power thus conferred. I am therefore of opinion that the petitlo.i must be tried by a jud^e prenusLug that the question to be tried be linnted to mLT -r/' " ''-' "^^'' '^''^^ '''' - --1-- to Ipr nnse the Eeturning Officer be received, and as the nueTu s " ^Z" f " -nsideration of this Court undJ.- of the Act. ' '^ '"^'""' '° '^' '^''''^''' "^^'^^ '''' 21. Barrister'a afc, and the 7,) but all in this case io be struck tion prajed 'curastances matter and 3 House of trying the determine ■he election th or oon- 3 tried by limited to 3 oomjiro- (luesliou lence may iirt under r sec. 21, GEOEGE IIIBBAED, Petitioner, vs. CHAKLES TUPPER, Respondent. Decision on jireliminary objections. Practice as to recriminafon/ chan/es. In this case the petition was filed in the following form : — IN THE ELECTION COUHT. " The Controverted Elections Act, 1S73." Election of a member for the House of Commons for the County of Cumberland hoklen on the fifth day of Februarv, A. D." 1874. Dominion of Canada, Province of N laua, \ ova iScotia, > To Wit:j The petition of George Jlibbard, of Lower Cove, in the County of Cumberland, merchant, whose name is subscribed hereto : — 1. Your IVtitiouer, Georse llihiiard, was duly qualified to vote at and was a euiidulato at said election. '2. And your Petitioner says that said election was lioiden on Thurs- pei" as heinjj; duly elected. said Charles lu^jper used t\w said c, irrupt practices ])y himself and other persons on liia bolialf for the jturpose of procurin:; his said election, whereby and hy means wiiereof he tlie said Cliarles Tnpper is disipialilied and incapacitated from sitting or voting in tlie present PaiUainent of tlie Dominion of Canada. 4. And yonv Petiti^mer r-ays that the snid Charles Tuiijicr, for the purpose of i>rociiring his said election, was guilty of liriliery hefore, during and after said election, and tlie saiil return' of the sai(l Charles Tupper is uu.liie and wholly null and void, and he, the said Cliarles Tupper, is incapacitated to serve in tlio present ParliaD'.ent of Canada. 62 n'Pnt^ I)i]ls, notes, iind prqi,,/.,, of th,' t "^^ ''^^•'"■<'. '"'D'Is, ji„|,.- to vote for I.i.u the said ClmW,. T per „,i t.'T'''' "";' '""'" "'''^'^"•s yotino- tor your J'otitioner, and <•■ i v ' A ^^<' V I'ack electors froni ^SeSStt?^;^:^.^^^^^^^^ Whereby ti.e .aid C.arIesT.pp-S-.rL;;^.S'Sel^^^^ by . hs nbutiu,^ ,.ivJ,Df; aud .ro^iption Riatiuty, rewards, bonds, iiido- ment^ l,7iio ? \ "'^'"'T, einplovnient 8Hnie,and be, tl,e 'said ( bails TmSrn,'/'' ""^r,'^' '""' I"'"" 'i.^o of tbo and returned, and liis said elee ioL ' d n ,''''' ""'T''-^' "'"'"'v '^'eeted corrupt practices use.l and em, o?ed or 1 1 ' '"'" '''^' ""■'"'^ "f «ai election aud return of liini tlu^' aid nV^ •. %V'"''''^'^« ^ I'l'-.-.u-ino- the void, and he, ti.e said Cl.aHosSn,?^ ^^ "^ ''';''> ^^'"^".v ""'^u d incapacitated from sittin- an 1 v, t n i 1' ^^ ""'' '■' '"'■'^'I'lalilied and nient of Canada. ^ ' ^"^'"" °^ ^^ervin^^ iu the present I'a:' ..-!.«» a „„,;,r,^'i„;'i;s',i;;r promises undue d d tliatthe election was u,dl an, l^-f'*''^*';'^'''" i-e'i'med, and P'arles Tupper. shatl T Lamb e"; f T"- "'"' ""' ""^ ^^='-i*l 'jeiuf,^ eh^cted or returiiud d?,rin.r ti^ "''"*^' " oandi.hite or the Dominion of Gxn , a '^ ^'"' ^''^''^''^ Parliament of (Signed) Gborqe IIibdahd. M -»;:i::!r:::?.*::~r^^--»- 63 x'l", to procure , 'liit'ctly and ip- RiviiiK- .'Hid . l)"iiils, jiul^- iii^olC and liifl li Io,sin<<- oHifP, lirilic clcpiors electors fnuu s*ii]>]iijr1('(l (it '•■^I'.t of jiiiMic siiid comity, and returned, J'» to Jtropure 'f ''"i-riiptiou ini])loyii„>nt, '"iiiiso of tlio Kliily olectL'd "iin.-i of said I'ociirinar , ■'iiid Charles 'did George s Tu]jp(T ia 'l'ui)])('r is ii'lianiont. t^r, for tlio iinl causiiicr ■;< of ])ul)lio i . ^ James W. JdirxsToN, Eso O P ■ Ti. v . ••'^'-Icwpou tI>ePoti,io,Kn. l-i.nsel.-nll.n. . ^ ' '"'^ "/'" on his part, m fonrnvf ion Mill, H,o i "^"■-^''^o* "".'™^' ""-'-vi- por,„i,,t«h„ ,„■„,;.«.. :^, "'"'"'!'«""' ''»'"-"" b" not thorit. i, oo„,er,.ed b, »,., ',4 " ''"„""""r- .«"'■ - Eieeliou Act 1873," a,i,l it i, ., ' ' ' ' ■"' "-"""-"verted fading „„ ,„„,e ;, \t:t:^Z:iT ™""'"'' '° ""^ '^™". This sediou anllioi-ises llie fiespomlent t„ ,,,■ , • aV l.reli„,i„ary „bje«i„u, or g „, d \? '^7 '" ™""« against the pflitioa-onff,i„.t ^, , „ ■" '""'■' '" ""So to hear and de.ern.fno T', l': ' °" ""•'•'■'"'«'' - a-'-meU .« not a,io„.od. .,„ Ke.;„:r : ■ .:;r;,';r;,r''' "™r"" *°^ 'am time »lthiu ivhich o fil,. l,;, ' ""-all"«ance, l,a, a ler- oeeO. to bearing and tlll^ ^X:^^ """ '"" """'^ '^^ 1™" of^c.t:T,t":!:::: rr/T,,-* "^"- -» -^'--v t).cre„nder. After de fbe nMv- "" '"•'""""S^ being bad ami the law and i^J^T^TTT''^"'- """"'"■■'». ter. we have cen.e to the onl ,' ^ ^ °" "■»»"«»« mat, g-n„ds co„ten,plat«°b;;T'"'°"w''"' ''" '•*="°"' ->'' mafy and prellnunary mode ar„ n„ V , ° 5° '"'«'"' " '^is »nra- 'beyare i„ faot in .,fe r^te ^-T I^': '!f' "'■^^'■*"-' "■»' t.ou, to the form and substance of the .e tio^^or ,•" "' ""'"■ petition, objections which nndnotod hp **ii''f, and bj- • Ti]onij)>oii, iiinarv objoc- in any other )se have been "» 1 1ll's is an t' .v action 10 ,„b-,ec..io„8, . ,,„,i,i„„ ,„„, ,„ „,,„^j .; T. \\,- ni~"i"'"tntatiou IS obvious and inroiHi"tt„f,Jp " tition, but the Ife,,,„,„bi,t l,„, l,i,„„|f ,■„,. ,1 , , ~8ree,„ent, ,d,„i„„a th» ,,„„,, „f ,„„ ,,,„,g„y„„, i' X ^.il;;'" The ]i„si,„„(lB„t |,„g j„^, J , thci-elore l,i,, right to |,„(i,i„„ (,,,„,, „fl^,.|, . ,"7 ""I. »"'! and ,,,„„„t „„ the trial he enqnirnj i„,„ w i, , , f P""'""". «..angel, ™,„.ter ,„ the ,.lnt',':,„ I ,t™'''^ "'""'"« th^r ;rh I o " ; T'""'' "'^•^ ^'^^^'^^ enquirvi„to ?rri-r^^ Po.itionor is notsLnt To '""' ^Lo ooruinot of tl.o m 67 'e preseuied " by aiididvte at such brought himself (inpar/^ 8. " But ititlecl ^jrima facie and incontestable." ie entitled to pe- purposes of this n the petition. 'tit and reerimi. m the trial, and ''\ny course pur- bythe petition, lould be running e Act were were because by pos- orru|)tioa at the all enquiry into he unsuccessful /'«y« 9 says, I'tors that their on only claims ad the ninjority 'il on the same page, it is stated that the objection that the P(!litioner could not, proceed, because the sitting member was prepared to ])rovc bribery against him, was overruled ; but the note adds " this it Mill be observed refers to bribery at the election, and not at a former one." The evi- dence of Wii.LKs J. before the Select Committee on Parliamentary and Municipal Elections, j). 447, is to the same jmrpose. That !..'!vrru.d Judgo sail, "the law is clear, that during \m .aiue rarliameni a person, who has boon a candidate, guilty of briberv at HU oloctiou cttunol bold his seat against a Potitioneri and that if 68 m tie be returned you may liring up against him anv tliinrr he has' done at any f.u-i.ier oKvliou, ^^hi,•h could not have' been "brought lip against him on some former petition. Xou- as the I'etitiouer bv iiotelauuiugthe .oat, has elled ually prevented the iutroduetiou ot recrunu.atory proof, his action at the election under review mnnot be brought up against him now, but niav be, should he stand agaui d,n-ing the i)resent session of Parliament. Th<> force of 1 his l)ecomes more niM.arent if we advert for a moment to the wide diflL.reih.e lietweeu ,l,e certificate and the report of the .ludg(«. The cortificateof the Judge under ^ec. 10 Cap "8 determines whether the member whose return is complained of' or any and N,hat other p,M-son was returned or elected or whether the election was void. This certificate is final, ,'and the question thereui d.l.Timne.l may not again be opened up. Not so the report whu^h the Judgo is to make under Sec. 20 to accompanv his certificate. This quesiion was tlioroughly argued in fho 3onc.v.c.,sv, 19 L. 7\ RX S. G-O, wh to it was decided that the certihcate was final, and conclusive, under the terms of the section ;-cootra, however, as regards the report, uhi..h does not stop an enquiry into charges relating to a previous election against any person not seated by the certificate." Not being able to obtain a.rcsH to the report, I quote from the Law of ••ertions and Election Petitions by L^.h ,n„l /.. Ma,rh,nt. he remark of these authors ; <^ therefore it would seem that bribery, treafng, and undue influence bv a candidate or his agents ;,taform.'re]ection during the same Parliament forthe same pla.., can be enquired into on a petition against the return of that candidate on a subse.pient vacancy during the same Parliament f..r the sumo place"— and the judgment of Bnvir,i,('..T. and W'lius J in St..us r.TiUea, (]. /.. n. C. /'.. ,.,,„. 147, is in point. ' There the seal had been ''iMimed and recrimiiu.tory evidence netuallv gotio into, and a report made by the judge, but the claim to the seat during the course of the omiuiry had been abandoned :-it was de- torminod that an enquiry could be subsequentlv entennl upon in- asmuch as these could not have been ascertained or brought'for- ward during (ho former petition. Again tho Respondents insisted on the nrcument that *»,p Pe= titiouer eould only jwlilion in one capacity, and that tl.n Pe. tidoner had petitioned in the capacity of both Cnndiduto and G9 ly thing he has s been brought le Petitioner by e introdiu'tion under review be, slioiild ho liainent:. The r a inomeiifc to report of the ] », Cap. 28, L'omplniiied oi", o(! or whether d the question . ^Tot so the to acfonipanv irgnod in tho derided that terms of the hich does not ions election " Not being 1 the Law of Ls Mdtrlutni. would seem di= Ihnt tho Pe. ididafo and elector; but Tern find nothing in sec. 10 of chap. 25, that limils the right to petition as a vot'>ra9 well as a Candidate, if the partv is so disposed. A similar objection to the reception of the petition was urged on the ground that the Pelilioner had been guilty of bril3ery and that his vote was therefore void and ho ^A•as himself di-iqualilied from exercising the francliise and had therefore no ?oc"",s- stdiidi enabling him to petition ; but (here is nothing in cuir statute law that disqualifies a \ er guilty of bribery from voting at a subsequent election or from petitioning, and tt:e Common Law does not efl'ect the civil status of a voter, who has been dr)- clared to have taken bribes, and does not dis(>ualify an elector who has administered bribes from voting afterwards at that or any other election. ^'f.s'7(')//'.s Manual o? the practice of elections by ILtnlcdMle pci'fii 11'], and if not so disqualified it is hard to un- der>tand why an eioctor should be deprived of the right of petition, vouchsafed him by statute. The preliminary c])jections must bo therefore disallowed, and the case i:o to trial on the allegations in the petition, and such other evidence may be taken as will enable tho judge trying the petition to I'cport under sec. 20 of chap. 28, 1873. Hon. WiM.iAM A. IIknuy, Q. C : — The Petioner alleges that he was dnly (lualilied to vote and was a candidate at the election, that the Jiespond snt was also a candidate thereat ami was return- ed as dnly elected. The petitioi' then makes tho visual charges of bribery und corruption against the liespondent his agents, and others at the election, t\iid prays that it may be determined that tho Hospoiulent was not duly elected or returned, that the elec- tion was nnll and void and that tlie Hespoiulent shall bo incapa- ble of being a candidate or being rtitin-iud during tlie present Parliament ; but does not claim the seat. Preliminary objections have been argued before us, charging the Petitioner with bribery niul corruption at that election, and praying that evidenco nioy bo taken upon the objections ami charges, and that the Petitioner, if the objections and charL'es be sustained, may not be permitted to proceed any fiu'ther with the potitiuu or take any objectiou to tho return of tho llespotulont. We are therefore to consider Iho objections as " preliminary" oues which this Court is called upon to decide, and hereby 70 expressing my coneurronce in the frenernl P.n T • in the judgment just giv-^ > - • - ' " ^^"^'I^^^^^^n" arrived at th( e issues raised. iven, 1 will add som e views of my own on .■e-a«oa .o. .He' *.;,j „^:,:r,;; "k- p":::,:" ;,i:'«-' ■•■• would, in my iud-nntnt h^ ,V,. . • V, ^"^'» « course co,„-,e m,rs„e,l In- nil ,L , 'L "■' " ','' '^'"■l.™e..t, but to the ia..d,a;weiia,t,;:;i °z f:,:':fr;''v''*"''"°''''™^^ of .hi. Court , and at the .„™ .i 'ei „M '::;,':;;, ° •'"";'■=» •■iuuit.vrr„mthecoi,s™neu,e,oflh„,-|l / loconloran im- o«eu,.e,, ag„iu»t auother to' ll'l ^i "' p-8 ^i'- ».v,el toany other .oucluA,, thau „ „ i^ ^.Z''^, """« vent .he ocnirren.e of nrarti,.,. , 'alfukfeil to pre- o-tiou of a pra^ilr t; ;;ri,: ""-.""^'''^ '■-»- recoguuod ,,ri„.ipl„ ol Juriwu le 111 """">' ""''" .i:, rel.ie back so as to make him ineligible as a Petitiou-T ? ^ 1 have looked 1.1 vain for a precedent to sustain ti.is contention, but have ia the reports befo'v> mentioned found the practice to be such as would fairly permit an assnuj^tioiv to the contra. v'. Neitlm bv Statute nor Common Law in Englan.i or in .his country, so far as 1 can di'^cover, has sach a disqualificatio!! been cr.-al.'-d or con- tended ibr. InBushhifs Practice of EUc^ioml- Hardcasik, 4/A iCd. m4,p. 11, it IS alleged tliat " Ihe Common Law of Parlia- '• meut did not affect the civil status of a voter who had been " declared by a committee to have taken bribes ; and whatsoex er " d -abt may rest on the question, whether apart from the Statute '• -Hook a member unseatnd for briber .; may be chosen for a - vacancy so caused, there is none as to -i.e Common Law ri-ht " of the electors who shared in the offenc- (o vote at the election " on the vacancy. 2sor is an elector who ha. administered bribes " di8(]ualified at Common Law from voting afterwards at that or ♦' any other election." The dicta here go further than is reiiuisite to sustaui my proposition, which refers not to a case where the party had bean previously to the election in question declared guilty of bribery, but to a case where the charge is that of bribery at the election in question. In the one case there would have been, ifthe Common Law Pomade it, a disqualification to vote and that might Iiuve produced a disqualification to pdUioa, which could not possibly exist in the present case, although the voter might be subsequently struck oft' for a cause which would not necessarily afJbct the voters' right to petition. The Petitioner claims the right to petition both as a voter and candidate, and I will hereafter refer to such claims separately. In the Taunton case (cited in ]Volferst,ln's Law and Practice of Election case^ 8 ) the objection that the Petitioner could not proceed because the sitiing member was prepared to prove br^hery against him was overruled, lint this, it will be observed, to bribery at the election and not at a former one. The ■clion to bribery at the ele-'; .; was in that case overruiv ( trary c on. 1 may here state tlu" i ment, and durin;^ tliis forenoon, 1 hav 3 for this mouth, w hich contains the rep . ' I can find no con- •0 making up my Judg- » the Canada Journal '" ;Hroo Judgments on place, (ioen' :ioi' of w'W.-h iuk->,t, reluii; - have looked but have ia [) be such as Noithit by try, so tiir as xU'd or L-on- inlmslle, 4/A uv of Parlia- 10 had been '■ \vhalsoe\er the Statute L'hoseu for a 1 Law right the election tered bribes Is at that or I is requisite 3 where tlie on declared it of bribery would have ion to vote, ition, which h the voter I would not I Petitioner late, and I he Taunton ion cases S) because the st him was bery at the bribery at id no con- ) my Jiidg- da Journal guients on preliminary objecflons" delivered la- 1 monili bv a C posed of Chief Justice JUrffir Chancellor, and tlie J/on. J. J. J/t, ourt coin- 1h Ion. ./. 0. Sp '•'I'J'.f, C K/arti/, Cliicf ,Tu~1 lr(! o oninion P! f thf CIS. I have nol had lime to rrad them nil, but I have glanced at on^^ (t.'i,' N'trih Vidona cos,-. app ars to be oxhaiislive, and to have I /'. 217) uhi.li icon pr('j).in'( I wil 1 nnu h di liberati)!! by the learned Juslice first named. I find tliat questions similar to those in this case v, matter of gratilication to lindtliat fheleadl ere arguei !in(i iv IS ng posii ions taken by me lis ci'lleai^ues. are fully sustained by that learned Judge and h Among other things 1 find bv the iiei.d notes to 1];at decided "That a candidate may be a Petiti "property quaiifica.ion be d'fective if it was not d It was oner, allhoi; nis eniam, l(>d 01 him at the time of tl le election. If h ne clauns, li;s wan), ot quililicalion may b..' urged against Ids b enu M'ated hut i)e m ly still sliew that the liL^spDudent was not dulv elected if charge it in his petition." Chief Justice iVM latns in that Judgment, savs, " if the iho canuidale wlio now .seeks the seat was not qualified under the statute to he elected, 1 take it for granted that the liespondjut will sliuw that under the .>kh section of' The Controverted Elections Act 1n7;_ to. It loes not "follow from this, however, that he may not be a good " Petitioner ;" and he cites amongst others the Timnton cane herein- after cited by me and referred to in Wolfemli'ln p. 8. lie .savs furtlier, " lint a |)erson alleging himself to a caiuliJate is entitled prima facie to ])etiii()ii unless his diiqualilication is obvious and incontestalil aiK 1 cit( oiul<)niiernj cane (ir una Ii.2\i) (iSnu.) lie also refers to Wolfe^stdn p. 5, which is hereinafter al.so quoted, and in respect of tlie Ru'itioix'r's qiialili- signiiicantlv cation, ni citing what the anilior savs, lU' it;ih./:ic(!s th(* words " at the t line )f the elrct lOll. "i]\iil, leaructl Judge further says, " it is objected agaiiiM the petition that the " Petitionin- did not possess f he necessary qiialiiicatious to be a candidate. He was a candidate in fuel. His right to 1 le s uch is now only ([uestioued ; and unless there is .some case (binding on us) which expressly holds that if the preliminary enqiurv estaijlishes the liu-t that the candidate was not qualilied, thoreiore he has no facni^ stuiuH to show that llie silting member is not did\ elected, we think we ou^hi not to st:iv the 10 " 74 " enquirv as fo iho KosioiidontV riglif to liold llio ,sea(.'' Wliifc plcascj Urns to sec llu' Ifadiiig fi-aliiros (i'"]ii_v .ludgir.ont Hiislaiiifid by such iiiidoiibleJIy liijrli autliorilies, .1 may (wpross regret lliat the lateness ofilieir reception pi-ecliidiil tlieir use wLeti ( (niM'der- \\i'^ tlie (■a>;! and i'raniliisj; my .)iidp:men( upon i( . The ri'dit of a (•auJid.iti! or voter to jKilhion rarlianiei.i is ('.le at. (Vnniiion Law, and any di-ijualification tii^'reoi' iiiu^t l;e f)v express statdlorv en:K-luient, And the ri^l.l. to pelition I'ar'ianieiit has f. take i' l'(>eu transferred so as lo i;;ive the same rijihl fo pelilioii this (.'ourl. No (ases were ciied or alleu'cd at the arijiinient in sup- port, of ifds ih'sijuah'l'c at ion and 1 hiiou" of none. An acroin- |)lie(^ in criirio (an oritrinate in tlie ])t;li]ie i::teresis a ehari/e against; parties giiihv in conmion ^vilh Iiimself. lie is a eoin- petent witne.'is asainsf tlieni and l,is slighily (•< rrel'orated evi- (!enco is suflieient ibr (onuction. I pen the ran-.e nnhhc grounds 1 sec; no reason vliy on«> party guilt v of 1 rd'crv iv.n- not:. be u coMiidainanl against aiioliier for ilie same oflence Iwlbro a (■o(ni)e;ent Iri! uiial. ]le certainly eotdd oiiginate n pro.seculion by indidnietU lor bribery and wliy not to- avoid an election? Tlie only tlitli-rence so far as I, can dis(ov(>r is a^ to tlie tribunals and the consequences of ((inviction. A ja-r.-on not a candidate or (juallfied voter cannot of course p(>tili(>ii, as sU'-b uuqualilied person is ikM coJisidered as i onstitulionallv in- terested: but although tlie vot(> of a briber or bribed otherwise good may be struck oil', or the seat be withheld from a tandidate guilty of bribery and both may lie jjunished also by penalties, he is nevertheless one of ihi. e wlio originally was eonstitnlionaly allowed to j)etition again>i the .'lection of a successful candidate and of that right he can oidy be depri\ed as I con<<'i\e bv ex- press enactment. .Such being the case for the reasons gi\ en I think it not a good ground of objection to a Pet it ioiier either as a candidate or voter to allege that he was at the election in ques- tion guilty of brihtn-y or other corrupt ])raotices. »SVc. lU of ihc Controvert f/ EU'ctitms Act, \X1'6, regulates the vjualilications of Petitioners thus: — *'(t). Some person wlio xvas duly qiinlificd to rote nt tlie clcctidii "ti which the petition relatf-? ; or (•-'). Soit-n j.cnoii rlaiminrrto have " a rifrlit to I)p (>Iect(()n i> petition, as iliitioiially iii- led otherwise 111 a (andidate penalties, lie niistitnlidiialy ;lnl laiiditlaie iiceive by e.\- isoiis jiiM'ii 1 iier either as a ;tii)ii in qiies- >S<'C. 10 of ihi iilidiatioiis of \t llic (>lrctioii ainiinfjto liavr i^J .'OHIO por- ek'ction." 75 Tho Pelii.ioner in tliis case elaiins lliaf lie was qualifiod to petiilon under the It^l and :;rd of those proxisions and th to is no slatii- talile aisqiialifieatiou that I can discover, IIonv then we ean d- er.'eoiie is to ine uulaiown ; and it iiulii.ed for other reasons io s- ful candidate although himseli guilty may be and usually istlie mosLintereslel of :. 'y, and though incapacitated from occupying Ihe seat hnus^lf he is very usually anxious to unseat and dis- o be remembered that the interest:-^ at stake are not alone those of the Pe- titioner and Respondent. tJldd" .luslice li.niULin th' Taualo. cus,' (t /. Ji. ('■ i'- :i'5'') ^^i^'^' "'^''''^' enquiry is not as be- •'tween party and party, but one alferting the rights of the -electors, the persons who arj or may be^^uvmb'rs or caiidi- - dates, and the llous'3 of Coiniuons itself." Mr. Justice Byles in the Bnsii ci-i". (:i 0. ih H., :U) says, •' Tlie ■'Petilioucr being a trustee for the whole body of the voters for -the IJorougli and for the public generally, eauuot withdraw un- " less he complies with the provi/ious of the statute.' Let us. however, .-oiiMilt soniJ auth',rities as to the (,ualilic:.t.ous "t Petitioners. "Soai. person qualili.d to vote, & ••" -( W^^lh^'sU^n . - This must mean those who ri'jhtfalhj voted or whos , quahlica- -tiiu on the Register, wliether tliey voted or not, was unim- - peaehable at the tun. of the ekdlonr h will be observed that the last ciied fpialti .1110,1 from the aii'har is the only one appli- cable to o .'• act. Uribery a', tlie eleetio i could not here alL.-t the ..Re.- ■ ■ at all; aud, in b^aglaud, only bribery ol w.uca th* ptrty had bum, prior to th^ ele',iou ia q.n.t...;., t .u:n guilty. ^r- 70 •; '^'■'|H. PC . ou alleging himself (o I,o a candidafo." ( Wolfer.ieiv . . l.e.H,l,o.,r nn.st be f,r<.|,an..l to pn.vo hi. " courirfrtl J,„ „ . ■ • '"■'>■"< f. »)/ /lift /,(,,■ uiq Iccn couutua Inj a previous ronutn/trn or Judno nP n .T -r ■ i':7;""Vi';""jr'" "--i-.^s .,.„.,. ,,„,,• ,,,,,,; .l»'.l.v.!.r.„„„,l,,v, ,,„, ,„,,i,„„ „„ „,„„,„ ,^,,., '• bnb,.,v. ,v„uM ,,„„„.„,. ,„ „ ,„„<|,,„,^. „, „_; ..„.,„.^ "II.,., ,-l„-t„„,, and llat In inv ,„i„J „ ,,,||||„. „ , ,. . ;;^.heH. .eoue .... .aM. s.._n.;.:'i;: ;::^^^^^^^^^^ babe... Ibe la.-a!lou-s t! > respo„a,.„t m,l to «• set ofl"' bur. fo ^a^an.hp..^,,har...>r.o„.,.,,,,,..,,,,^,^^^ ... la. pm.,.;ple, 1 fl,i„k, that uoul.l n.traiu a guil.v la.erwh.n,u....]l-d,argod . by the ):,. „o, o„lv .u .liLl b t ^u.bun the position ,■ .«„. *;,P,_as the h.Moi-y of the trials the nu,nero.. c..es betb.v .neu.ioned. i. at loa , by i>npli..ation ^ u.b^ag..,.t .t, and a. a ...es^arv result of .s.d.hshiu. it .0 Id be a c-ouiravent.on of ,h. spirit of the .statutes agaiu.t eor- ""'rV'f'f ' -'^ ^' ^'-^-^--'i' .be pa.-lia„:nta,V - ea,pts .o c-h,. k a pnblie evil ,so .eneral), den.olalizing and nb nou., „,v duty .u the position I o.cupy ccnpeLs a relirsal on ( WoJfcrste.in I" pclii ion, I) j)i' ?Il((T('ll . II l« Mllll li!j s guilty (,i" 1ipostp.)irethea.ljudical!on ui.nn those preliminary oh ons and refer them to the Judges assigned to try the eleci n but when wo met to consult unon our decisions wo found wo were all so deci.ledly and clearly of opinion that the obiectioascould not be sustuined.bothuponourown reading of the statutes :.nd upon the decisions of the English and Irish Judges upon the corresponding enactments in Britain— that wo have resolved to dispose ot them now. V.urt from tho question of what public policy wo ild seem to vender advisable— namely, that one man accused of a cr'tno should not be permitted to escape investigation by a tu quo,ne urgumeut-a principle, I need not say, wholly alien and unUnows to our laws-let us look first at the language of the statute. What does it say ? It says that if tbo Petitioner claims the scat tho Respond- ent may fylo recriminatory charges and proceed to tl.c proof of them-an mnst corrupt and scandalous means, by violence, intimidation, fraud, m's conduct of olHeials or uross mistake. In short, bis election mi--hl have been vitiated by ^^xi-vy circumstance which could by any possibility have rendered the election void. It ini,!,dit be provable beyond a doubt that but a small minoritv of tlie duly qualified electors were bis supporters iwmX yet he would bold his seal in despite of the great majority of\liose whom he professed to nqvreseiit, not because it w:!s riodit, but because his opponent Inuf lieen guilty of sonn^ fraud or cor- ruption. It is satisfactory to find that we are fortified bv tho decisions ot the most eminent Eiiirlish Judges in our un- animous conclusion tbat the section of the acts under conside- ration com,>els us not to sustain a position so subversive of the rights of the olectord who are the parties really interest- ed far more than the candidate in (be result of the proceed- ing. 79 OarStntntoof S^^, -1;-^^^^ candidate ^vl,n sh:,l . c ,^__.^_^^^ ,,,,■ dc.ticn^ bororo the '•/''•'^F'- '"'"" ,,;.;, u.<,il-ir"!'nnHlidMc orbein.deeU.ao..au.ed u.^^^ su.h election was held. 1 b 1-. ^^^^ ^^^^^^ ^^, . ,,,, ,.^^,„,, of 18GS, ;31 ana -Vi vu-., > 1 2-', '^ • ■ .,,,.,.^, ,,^,,, 4eneo,n,nlt.dwitlylje n...d^-.^^^ olUces. whatever Ihat m«y 1«. H"* ''"l'"' '■" ^„;,i„^ i, ..learty h. tk, .r,.l..,, we hav. »v«ry >■ "-'-^^^ '";,,. . ,,„„,, to go into ,e.ri,»i.tatory ev,,lonce «a.d """ ";~' „, ,„ ,„t >M. » .-.-""»>>■■>■ »; ■ ' ''7, ;, j,.,,i„„ ..,«., „,„1 ,,ore,.,,- ,„l,„l npoii l^ul.og ol llie statolo, tm^ vemouHl it. „.,dern uullmrity. it is "«\"\^''''\\''^'^^^ J" l" ,, ,Herred to in sid.n"<.-d as wM settled. eviu. ..(B en a- . UprP'vfter T considei- tlie duty oi m^- 80 aiKl that he hns no jKmoi- to do anvlhing else CAcopt uhon ex- pressly, orl.y nen>s:.arv implinifion anthori/.nl, hv tho sjal u'e If the Le..i.lalure had meant the J.ulye lo he (he tribunal to fvanv bi.f the lv>esponde>.t they wonhl have said so; b.it I eannot find a >;;n«!e Mord in (he .\et (o anihorize a Jnd^re foa.sn.ne anv ^n,■h .lunsdicdon at the instan.e of a Respondent. I cannot disrover in any staliKe or any decided vneea in (he ( ana^lian Ntatnte It uonid clearly be the duty of the Ju Ige at, the ensniiuMrial to investigate any .-harges againsi (h.e Tel inner upon pro.,,.,- ],roveii ,1 thi> be ihe fact (he statutes of all tie I'rovinces an- Incor- porated with the Dominion Act bv Sec. ] of Chap. L'T ..nd it i not nttdl probable that any one of (hen. is „, far be'.ind then-e n.lh.s respe-l as to hav., no siaUf n-y di-oualilicatioii Ibr vote.-, Kuilty of bribery or being bribed. ^ It mav lurth..rb.'ask..d if the j'uHiuuM.n! inl-nded ihai {he !^i.I)n'mc Court should be the (ril uual. why v.ould il iu.i*h,,ve 81 Wn\ ^0 " Tie reason prol..l.ly was ihat in the dKTerent Provmces the Couds are clillereMly con.Utute.l, have jurisdid ions varying CdiriVon,e.cl.oth.vaudaanunislerin.omeeases..delyadlercnt ...nod that in each of theni Cunrts c.xi.ted wUh po r o t y ar...s cfbriberv ai ele.tic.ns, and lelt the e.xecufon ot the law to t : trihunals hV v.halover name they nught he called .he.r ap- p;;;i "in a proper n,anner. If n.y view oHhe law be correct, he sitting nKMuber is deprived of no right or advantage whu-h ho nV.-d.t not have seenred had he seen I't. Iho Supreme Court .-l^eh nn,nesiionably has .jurisdiclion to pnn.sh brd^ery at el^- tionshas held a tern, in Cund^erland since tlas eleehou was he d. Had (he IVlinoner ken indicted then, he would, it iound gml y a. char^vd in the.3 preliminary ul^e^tiuns, have been c-onnc;ted by . i...rv of briber-,' and the other corrupt pnu-tiees charged, winch conviction would have subjected l.nu not only to the disqnah i- 2ns prescribed in sec. 10, but to very .evere pecunmry pen- a ties. Ample means and opportunities thus exist tor entorcing ! 19, Jilhout this Cocu-t assuming to itselt a (.rnnin 1 JurisdicUou not conierrcd on it by the stat^ute under whu.h ,t is constituted. That such is the tribunal ui ended b t s Itiou 1 am iirmly co.uinced. 1 a>n sat.sf.ed hut the nluage of the statute. Chap. 2S, Sec. 10, vshuh is nhnos de^tic^l with that of .he Engl.h Act, v^as Invmed wit^a vicu o ho known S.UC of the law on this ,ues,ion. it gives the right to petition not to persons claiming to ^ote-noreven as m t o En.dish Act to per.ons who had actually voted-but only to per- Bonsdulv.2«.«^>>aovoteat the elect ion-v.h.le in the case o dida^e/it g^es the right cf petitioti to '^ scmie person cU,,.,n , ,,,,n, to be returned or elected," atul also •some perso i .? . ^ U,ilfiona.e i.n a caMJaU at such election." ^^^ - -- doe. not, as in the case of a voter, requ.ro that a candulatMi i r to bo allowed to petition, m.ist be a d.dy .p.ahbed cundula to Z. nnirUed and stndied distinction in ^^^^^^f^^^^^^ what 1 consider the settled law on the subject, and 1 h nk it 8 .mere coincidence but an i.itentional " to-^ --;.'; ^^ fru.ntlu- KnglishAct. At the sanu, tnno I do no wish to bo " , . ■ ,•— 1'-^ :'• -x ,n!..iidiit« cfimn forward as a understood uh accidiiig tnat •-: it <:>' "^^- ,, . , „ „., p!,itioner who had uo ciuulilicalicu whatcvcr.-lor xu.lanco an il 82 alien -he might legally be a pelilioner. I give no opinion on that, ^r.1 .• "" ^'^^'■'^'^ ^'"^^'-^ P^''-«^^» ^vho bocoinc. a candidate and atthetimeo bej-oming a candidate is qualified, may become a pet.t.one,. notwithstanding he n>ay, during his candidature, have been ga,i,yut corrupt practices. Ti>e two ca.e« are clearly dis- tniguisliabie on substantial ground. Keither do 1 consider it necessary t:o decide whether a voter Mho has been guilty of bnbery n,ay bo a petitioner, because if the petitioner is qualified as a candidate, it is snflirient for the pur poses of this enquiry. The English cases on this point, which are conl1icting,_aretobefouud iu 1 O. & 11.. 17(;.-lb. I'JO and 2 U. tt 11., lo. ' Our decision in this case does not preclude evidence of oorrunt practices on the part of the petitioner. Sec. 20 of (^hap og ,4 quu-es the Jt.dge, when corrupt practices are charged iu thc^peti- tion to enter upon a geueral iuvestigution of the c'orrupt practices which occurred at the election by m homsoe^-er committed, and in this case It will be K ■ to do so and repor. the result to the speaker as requsi. i: bv :^, .t^ute. In aceorclauco . ^ .Jgniout of the Court, an order pas- sed lu the following terms :— ^ llalifiuv, 17th August, 1874. (Signed.) Ky the Court, Be.vjamix RrssKM,. Cier/c of the Couii, WILLIAM Hh>'KY ALLISON, Petitioner. vs. I^IONSON IT. GOrDGE, Eespondent. Decision on prelunl.or;, ohj.ctions. S.tJ'n^ncy of petition. Jurisdiction of the Court. In this cause the petition was filed in the following form :- IN THE ELECTION COURT. o '♦ " The Controverttd Elections Act 187' Plection for the Countv of Hants, holdeu c. il.e Fifth dny of Fe~ I the year of our Lord One Thousand Eight Hundred and Heventy-Four. Thepetiiion of Wiiruun Hen.y Allison, of Newport, in the County of Hants, farmer, whose name is subscribed hereto, KespectfuUy sheweth : 1 That vour Fetition.r, AVilliam . Il.nry Allison, ..as duly analined to vote at, and ^vus a can.li.bU>- ut .aid election. ;i;;;,S;^i-S''e^^.li;-lt.:l;^n:fWKetnrnin« OHl.er In. retuvaed Mou^on II. (ioiid-o as l.eiuR duly elected. .n Your Petitioner conndains that the said MonBon II. Oou<'ge was uuduly elected at .'*aid e!ectiou. 4. And your Tetitioner further ->T t|.a^,S:.-'J J^^l^pm-lS and his agents an.l ^'^5v^»^f ,r;'":?:i''Su^lS Jt MU-h eh dinli >vithin r^ni.sj^.:rth;«c'^'- ^^^^- ^"" ''" ^''^"^ other acts in force in that hehall'. r,. An., yo... .Mi. ' ™.v- ';;[i';;;;,£ '!;; "ii.^lS ".""y'S ftn.l hi. >-.n-v:.nt^ and a^'entr* i.t said '''.i-^' '^„?'' [^ j' '^.,^,,^ of conui-tion hrihery an.l of corrn,.t l-r-J^tices an. " <•; l''^'/ 'j-^^, ', 'or. qualill'd to ^S S';l^iSj;;;r^i^'^r 111: sSd M^i^oa n. (=,...„. 0. And your Petitiouor sa^. further 'j-; j;';^:ji^';;^;;;.^i\i"vl5£ and his agnuta and heWuuts threatened cettaui ••laoift «l 84 andcoiBiu-tolEu ^ ^^uukliose certain oliicrs and sduries held by <>:.'otio,K fa.m votiuj for th^ Ail u|r:/' .''''"'' ^^K ''' ele,.t,.r. .^uditi,;d',!,' ", " it uch' el-S' tlKnl't""',?"'''''" ?^ "'° il'rtlll Votilli^^fortllr .-tid Wllilm ir nr;. * V tJlPy did ll„t Hl.Ftiiill offlco- and sd,r .. Ik d I v i \ ■^' ''^''r'"", ^'"'•^' ^^^'"''1 lo.".^ «rta,ir. k...,.in^ imckc'tain'Id. d " Ir ;i;;n,^,^ iTv J"'" ;'"^ 'r^'r'' ''^ fron. votiu, for ti,o .aid wiiiian. ii^nif^lni;';,.;.;:^;,^;^!:;:::;.;''''^^^-' tli»t th. R,l,l M.i„»„ ( ,1," , ll f"""<-''', i.< ni Ti,l ,„i,l. ,„„1 o. ^oln, „,™u.a „, ;i,!l„;:;r£°„:!'iS^;;:;^;r,t|;;;i:;^'S;,;;;;«*'<'' ai" cd our (Sd.l Wu.i.iAM 1!i;nby Allison. The !V.I!„ui„g j,rplinunarr ohjeolions were filed on behalf of tho lius|,„n,l,M,< hv DM. - ^\v„k.. Em]., a« Atfomey. IX THK r.r.ECTION COt'llT. " Thf ConfrnvtHrff f^fetu),,. A' i^T.'J." 'hruarj and 8evei) „ . -• - ■-•.»—- ir-ui-t: uij Tm» fifth diiv (d J^ehruary, in fhn v..i, ,,f ,,..- r.,„.i r. ,, ri.,„, ,,^ , .,. , , ,, •, , 85 Dominion of Canarlii, ProvitiL'O ot" Xova Scotia, To wit : , I WiLT.iAM IIkkry Allison-, Petilloaer. vx. MoNSox fl. GoUDOE, llospouJjufc. saiJ Ris'riivJMif., by way of pniliinliiiry o'.)j'3 -rniis aid grounds of iiHiiitt.ieni'y a^'aiiist tlv3 \^}l['\}:l h m- >i i an 1 lli) complaints thar.iiacontaiuaJ auJ any riU';.':i,n- prj •> "liu^s Mur.! "i, savs : — The 1 Tho sai« no j ai-is.lictioa ia or ;i'> ;_at t'l- inittrfi aii'l e.maot Uko c ),:,'!ilz.m.;,) oC tlio 3 1. no or allecjivl in s lid i),.'titwn adjudicate thereon. 2. V Slid notition differs matovially iu form aad saL-tans^ fnni th'^ mmir^mnnlof C!>q.t.r2^> of t'lo Acts of HT:'. of the I'lrhaM,.. of Ciuvli.indtlie rain, undo th,H-ouiider aad the other Arts, and the law in that hehalf, ami is wholly irrejtul.ir and inauiheient. .3 Itdoe^not anpoar 1)V ^aid p-titi m or any part thereof that the .ame ha. been "aa'd'. in relation t. ..ytlun.' done ui the l)..nuiMno C nadaoriaanv and what pirt.a- pr .vmee ol ^f '>;^'"''.",''' k;, ;'!;? the sam.- wa« mv.leor 1- is rel ,.tlon t^ any election held in .aid >;'";;" of Cauvli or iuvv pirt or provinee thereof, or whei'ayi- sai.l .} ■cU^ vr^ oivie Local or I) tminion, or th it the IVtitionor re^ide-^ ord.d re^de at the time of said election in said Doniiniou or in any pirt or iirovince t er of n.r.hesthe said Petition- aver or .et forth that the ..le.tu.n referred t, therein wis an .'ieMi n, f ,r the Hon.. of Coaimon. ut .am Uoniinion of Canada. 4 As to the several parrviiraphs .and coini)laints of :»aid i. >titi m t'lerv i« n/in anv of .aid' pvri/iph^ or in all tier.if anv ^-]yMf sulSrientlvandl.-anv .et forth to .hew any im due ro ara, or that the "petitioner is entitled to the Mwi hy .said petiuou sought. .--, A=> to the 4th. r-th .ml 8th paraEjraphs of i.aid petition flip Il,.m»nd..H sav- that ti.rvd.n.t contain , my siiilicient cli ii-e w, hin e aw and tlu< statute, in that behalf rolatm- to olwtnns : nor h th.j^ anv Sricient statemont of anv co.npl unt ; nor is it stated tliiit th« ,w^_« SLiu let out were, done ami comM.rtted to procure R^spoiubut^ election or roturn. 0. As to th«' iiixth ail'' sftV« tliat they do not co statutes in thi\T heiiair win, utatenientof any oomphiinl, .= said sixth an■!!-•;♦ ,1 ;,v(ari>d thutthp nrts nIh'U'ed in , !>ceiv done l.y the Respond, lit , n,i .■,,tiuii'.lti''d with intent t.> :18. 86 corni]if or lirile nny elector to vote for T?rPiiondfnt, or to keep lipok nnv (hct.rtromvotni«- for any other cainlidate, (rto procure the . lecliun ot ^ial(l Hepj)omunt. 7. As to tlie tenth panii;ra].li of ,=aicl petilion Eespondent says that t hue i~ i„, fvnniu.l ot coiiiplaint legally or Miflicitntlv Fct forth 1o', ntitle the letitionrrto liave the ], rarer of ^ai.l petition rnnt^cl, and it is not aihfrp.l that the acts .!one ortliinf>s complaint d of %vcre dune or lu^ed to procure the election of said lleq.ondeut. 8 As to the ninth paraprni.h of said petition the Respondent says that It contains nc leizal or statutahle complaint set fo.th. i nd the Hllrpred pMevanc..M or acts therein referndto are not sufhciently described nor .s It stal.d mat the said Rrievances or acts were done or used to procure the . iectiou ol said Respondent. 9. And as to the prayer of said petition, ^hile it is prayed that said olect.oo may he decluv.] void, it is not praye.l that the said return be iieciareu vmil, 10. Tiiere is no j, roper service or return of said petition. Halifax, IStli April, 1874. (SJ-) Otto S. Wekks, To the Petitioner] '^""'"'^' "^ '"'^ Kespondent. within named, J The ohjections were arfrued )u f .re tW full Court hy Tl. L. Weatherli «/{■; n"i.'n^';. ^^'7^'' ^'"'•' "' 8"l'l'ortof the sauie, and Hon. J. jieUoiiiiki, i{. ij , contra. The Court now (.Anj^nist 17) delivereil judgment :— JTox. Wm. a. HKjfiiT, Q. C— The petition i.i Ibis case sets out in 8e\ei. paragraphs sundry illognl acts ami corrupt practices a^fliiisl the Eespoiident anil others at the chn'tu-n. ami i)rays that the election may be sot aside, but does not cluiiu iKo seat. The ]ietitiou is headed " \\\ tlie Election r\\rtH. The Con- tnnorted Electior.s Act 1S7;3." " Election ft>r the Count v of Hants holdenon the fifth day of Februav\ > in the year of' our Lord Ono Thousand Eiglit Hundred and Meveiity-Kour." The first paragraph alleges that " petitioner w.ts diilv quaKlied to "vole at and was a candidate at the said ek>clion," aad the second (hat " lu- and the H.,«spondeat were caiidiiLites, and that "the Kespoudent \\as returned as duly elected." The a^t paragrniilt con>p]ains that " the R^-spondent was uoduly elected." Ten preliminary objections have been filed and arjrajd' before ug upon the sntfldency of which to «ot aside the petition we havp to decide- The first is to tho jurisdiction of the Court to take cognizance of the mutters in the ptition alleged or to adjudicate upon th..tn, ovvin- . . fi^y uKapat.ity of tb« Domluioa Parliu- 87 ment to confer upon us the necessary powers. In discussing the point of ol>jeclio!i thus riiitied, I cannot throw out of consideration the question of inherent right of every parliamentary representa- tive body to regulate and determine the course to be adopted for trying qu^-s; ions raided as to the validity of the election of its own members, and the peculiar right ot the parliament of which the representative body ibrmed a part, to regulate how and by what means the election of its niendjers sliould be held, and consequently the mode and maimer of tryirg contested elections. Such inherent powers ha-,e always been conceded to the parlia- ments of all the Bl•iti^h North American and many other colonies of Great Britain. Tarliameiit in England till lately had exclusive jurisdiction in su^h cases, and always chiimed it, and the same has always been claimed in the British Korlh American and other colonies. Statutory enactments have regulated the trial o'.' contested elections; audit we have not lost by Union what each province had a constitutional right to before, and by be- coming larger have not really become smaller, we si ill possess that Constitutional right. It may be objected that our parlia- mentary rights iu that respect must now depend upon the interpretation to be given to the Imperial Act, entitled "The British North America Act 18G7."' Let it be so, and still a sufficient answer to the objection may be given. Tiie preamble to that Act recites the desire of the provinces named " to be " federally tniited into one Dominion under tlie Crown of the " United Kingdom of Great Britain and Ireland, v !th a coiit;(i- " tution similctr in luindph' i > that of '/"' ^'"''"' Ki^il'^om." We must assume therefore, unless the contrary plainly appears that the Imperial Parliament by that Act intended to give and provide and did give and provide what is in tlie preamlile recited as the desire of the colonies to have, '- a coustliution similar in pt-innple " to that of the United Kin,s iiiB:i;r,iii(.r~.i];cl jxMcrs 1o 1 e lu-ld, enjoyed nnd " e:.enis-('d I y lie ^tiiale iiiul by (1 e Juii.h^ of (en ir.c'iis'imd by " tl.e lUCTiibcrs ibereol" l•(-^|)e(•ti^('ly slnl] l.e kkJi as n re from " tiii/o to iiiho Ci-fiicd lyA(t ol vl.e, .InilifnnM,! of Crjuida, but "i^otliat ll.e f-iinu !-l,iill ]:over exceed ihc-e ul the pasMiig of " tliis Ai.i, held, enjoyed aiid exereited by tlie C'eii.niciis House "of rarliiimeut of the L'jiited Kiiif:doiii of (Jreat: Eritaui and " Ireland aud the ir.euibers lliereoJ." 'Ihe Poihiiiirn rarliauient, in delegating the power to this Court to try coulroverted eleelioiis, has nol in uiy judgii:eiit exceeded He authority ^iven by that section, it may, however, be said that the section has reference to the powers, ,U:, of tlie i«-'e]iate aud House of Connuons separately, and 1 admit ii,aud still contend that my construction may n.nerlheless be upheld. 1 Mill, however, now proceed to cite from thatActvhat J consider express authority in tlie premises. Jn »Soc. t)] ol the sane Act, under the sigiuiicaur, heading, '-Powers of I^irlianient," you may thus read: "It shall be lawlnl for the Queen, by and with the '• advice aud consent of the beuate and House of Connuons, to " make laws for the peace, order and good go\erument of Canada "in reiuliou to all ntuitas not coming within the classes of "subjects by this .vet assigned exclusively to the Legislatures of "the Provinces, and for greater certainty, but not so as to " restrict the [lenendlty of the Ibregoing terms of this sectiou, it " is hereby declared that (notwithstanding anything in this Act) "the exclusive Legislative authority of the J'arliament of "Canada extends to all matters coming within the classes "of su]>jects next hereinafter enumerated, that is to say." Then the " classes oi subjects" are given, but not, I confess, nam- ing the matter uow in question.— Tlie power is, however, given '* to make hiws for the peace, order, and good government of Oawa^X-a in relation U) all matters^" but with certain e.xceplions What are those exceptions ? Clearly only " matters coming wiihiu the dashes of subjects exclusively assigned to the Local Leghslu- lures." If I lien the matter in question is not assigned vxcluHh-chj to the Local Legislature, but is cxpresisly excluded fi om the matters so •ssigued, it must uecessurily be one of the subj^-ets in re-.ard to which by the language of that section, "it is hiwlul (or tlsc, C'siccn by the advice of ihe .Senate and Iluuse of Commons, to nuike laws.'' 1 have carefully read over and cou^idered the "exclusi\e pouera ■n\, by 89 ofProvincial Legislatures" and can fmd no approach to the sub- ject in question in any or .i e " classes of cases" re erred to the Local or Provincial Legislatures. If therefore the power of Legislation, as to contested elections for the House of Commons, is :ot vested in the Provincial Legislature, it must, of necessity, be in the Dominion Parliament or nowhere ; and ^^^^^ ^^ J;^, ^:ie Imperial Act and its V^^^^'-' ^'[^:^^^ of the fu-st alternative as I cannot conceive t.at the BiU sh a.lut „.ent intended that such power sho.dd not ---l-^ ^^ ;^.,tt me idd one more quotation from the same act. bee. 101 piovidc,, " l^^i^Lmentof Canada may, notwithstanding anythmg m thi Act from time to time provide for the const.uUon mam- e^.^ Lnd organisation of a general Court of Appeal h. Camu^a and for the hctlcr olnanktraiwu of the Laws of Canada ^\ 1 at Ta r by the latter clause ? What Laws of Canada ? ^V Uhuu Tprdaling as to what may not be included in consequence o^ e ^ , • *•.,. tlw. ovprcisc of the powers ot tlie i.ocal subject beu>g one to the --^^^« « f ^^^j,,,^ Uu^t T.rnrisl'itures exclusively, no person, i taivc u, _ «;; :c,,tofC.naa,.. having ,!,» exclusive l»>v« to log,^ c as ,o all .l>c omuuera.cl sul.jed,, suoh a, tl.o Custom aud „ .a Uevcaue, ,a,e„.,audv„KV-rls...vn"i.;.;, ..H ;.-^^^^^^^^ 1 ,,,1.1 ,int li'ivc the riot.a,l County otU an-, > lo W u -J *°'° , I „..o b,.n Mowed .or the same The above or,l«- .-«'=i ■"' ''",\°„„,„t of i„lun.«tto,. ousM , ™„,„,,. u,oJ. but *. «™;, ;;;,,,,! and «u,ot bo d.- ;,„s«d .-,,1,. Th, « «";">,^ t ; „„> volar ex.o,.t elocUon io Itore :u-o "0 »-,hM. '» »'"* ,f „„,o..lo» I .■.m>ot bold ' "Xi -* « l"-'» '■"'•" "; ?; J^e to b, couriered as famu.g £e by .,»..... tbo,>, « y - , „^„„„„ „o peut.n .s in tbe Pioto. a.>d In^t^s, - , -™ „„,, ,,,u ,be ^ud^nen of the ma ority, an ordor passeu #, .a> '^"-n% IMAGE EVALUATION TEST TARGET (MT-3) y A // / *^ .. «^ "•v Se „.^ KV / 1.0 I.I 11.25 |||j£ ^A. 111.6 PhnfnorQnViir» Sciences Corporation S ■^ iV <^ \\ ^^q) N 53 WeST MAIN STUeBT WEBSTER, N.Y. M580 (716) •73-4S03 O^ ^ A^ W 4 V MP^ ^ ^^ fe l/j liOBERT DOULL, Petitioner. vs. ADAM 1^A\VS0.^, Eospoudents. Onar,es of ,,,U ^ ^,^ ^^^^^^. ^^ otfiHY/ rt J ehtioner, struck out. i...te™"7,?,;. &.'*!;- ;;■,»',■■;, ,'•;;,', -• i- n..iv **.., „ t„. "« wa8 taken out An -iist -Mtl. I.v in,, ^;^•,^" ''"''>'' *^ <^"- A rule tlK. auswer, on tlu> f^romul that i coSn^ I Hw,' ''■'^'p";''''. ^'' ^t''"^« «"t cJiTnpt],nt.tice,s ntrainst tli, .1,1 £ , ?r,?^ 1'HIht.v and otlier thin!! in',?!" '," 1": ''""• '"'"'■•• '''"''• «"■""■'- -""""S't olher strikeout ,l,e „,„„,.,■ „,u|,e crnnW t , ,• " '° o«-o b,„: ,vi,i, „ ,,?' ; r,™?, """."'"■ .i-te-t i„ n,„t |,o ruk., of l„s„| ,,ro,,ed„« „ l,k-l, govoru the trial ol isHuos misod by a complaint and auswor. 93 An irrelevant issue is hero lenderecl which cannot aftect the true ones to be tried, and being tlierefore irregular we must decide to make absolute the rule to that extent ; but as we cannot make the rule absolute to the extent apphcd for, no costs will be allowed on either side. give GEOJJGE IIIi:[]Al>T>, Peiitionei vs. C!TA"RlE.S TL'PFER, Eesnondont". lircriiiiiiifr/ori/ C/if//yc--< sf/'UiJ,' out of the anavcr. Ill lliis ca.^e a niloni.-i \v,;i"ii .int cui Au;;-ii.1 ;i7(h. l)y K. L. V''.^p.flior1o. .■'(i..tu_.-tnkt» out tlio tiivt 1)iiim,l;t.iii1i of tli" answiT on' the pronn | tli;it it 1' lilt tine. 1 rt'CiiiniiiMtiirv cli.ir tl: Ali,.;usf.'nil :ain:^t tlip I'l titioiiiT, ^\lu■) liiul not firinicd 'at. The rule -.vas arirueil li.-Ciie the lull rourt i 15. I.. A\\\itl Tlioiuii-on. 10 (]., (Oiifra. UTilO !•: I]., in .••uiiport of t!io ruk 111 .I.S. L). Hon. W. a. 11i;.\i!V, (.}. C, ou ilio snme dav, delivered (lie jud^mni'iit of tl;e Cour! ;is UlKiiW \\'i> have considi'ivd llie que^lion nrisiiig on tlio rule to stril iO otu llio !Ui5\vi'r ill this (•ausc, iind we .".re now prepared to dell\er jiidjjjMioiit. The 1-llh fSoction of " TIiO diilroverted Eleclions ill (iv;> days after the expiration of A 1,1 He liiiu' pr OVKl (hat: Willi liiiiil I'd tor oliji'd 111!,' to thi' scciiritv, <.r after the fiociintv lias feeii eslahlished, the Uespoiideiit may jiroeiit in writin;^ a;iv pivliiiiiiiary objeiMions or grounds of iiisiiltieieiicy wliiih he niav have to urge against the petition or any furtlier proc'eedin"'S nere. 11. aiM slia ill in sih'h case at the same time file a coiiy thereof for the IVlilioiu-r. 'J'lie I'leciioii (.'ouri or aiiv Judi'"o thereof shall llierennon hear larlies upon t)iections a iid .inner. B eloro grounds, and shall deeide the same in a siimina. this Aet was passed there was no mode in Ijigland or in Canada i'ov ill |iiiriiig into jjr.'rnniiiary ijiiesliiiiis exce[)( on (lie (rial. 'I'lie Legishidire, (hen, has expressly given (li(» power to (his ( oiirl io liiiuire uiio preliminarv ohjecti.ri« The l\)ur(, however, IS nu hori/ed 1)v (he iL'nd Seel ion of Act ( o iiutiio general rules and onlers lor (lie ellei'tuil excriilion of the Act, and (he JJIird Section pro\i!es I'lirther that" "iiiilil rules of Court lia\e been made * * * im\ so llir as such rules do not e.\tend, the priiiriple,;, [iraclice and rules on which election petitions, touching the t>letionof memhei'!) of the House of ("ominous in Mnglaiul, are at the lime of (he pa>siiig oi' this Act d(;alt with, shall bo obsLH'ved so fir as consisd'nily with (his Aet tliev maybe ob- Herveil by such Kloc(ioii Court or any Judge thereof." This provision iloes not fully meet the ca.«o before the Court, niul we cannol find any c;ise in (he English jiractico where a Judge is called UDon to act in tl 10 maiiiuM' in which wo are called upon 95 There is not here, expreissly the p jini th' ■i-elbi''; 111 llie; \\ e are Dvir^ue lower di-iveii to u that v.e an h Mure Miia ; h,Te callra u|n>n to exeivi- is the \n\'.[y-'i- r^in-.-u U seciious to p\o lis u' us U) uinun' the pri l^5eUt) ireiniisiaiues. J do noi thiiil t1 WW the mode is iiaporl ixirtv what it is in uit. Liie giv atobied. istouotitylh.eoiU"'^''" tended to a sk the Court to da. Here a rule vlsi was taken out, an. process in the Saprenie there is nothing to prove i ahliough there is no exaetly sin^ilav •t, it' it answers C'our ,nt us tVoni adoi)tin he ( le>.in ;1 Me/t •' It no (pies ition about ovu' pow !i< to make a rule There wouhi lie 1(1 r,'<;ula'e the prai'tire iu this resp ,-t, and 1 do nol see that there is aiivlliuu to p: •evei ,t us Iron. a(h.ptin- any manner ol ttUt i'j:tht ■M> (hsiHiles wh'u-h is no tSunreme ,t, coutrarv in pniuii ineilde lo tlie pr.retn Ui, Ih. Court. Where pr •oei.'eunii in that t'onri an eulated tliem. do Ihi d to .'inbarrass a part the Court, wi 11 ^' rike o ill or anienil Und-r lliese eiivum>ianees 1 1 \in c we have the po\v.>r lo ;aino thin;- W e eousu: hv that the neeessary canp the trial of tlie proper iliints ill the answer is issue: and that sueh a ] mttiug of ; lies' uu- ■idcidate.l !<> euibara-* iroeeedinj; is in ion to tlie main ju(ii:;m''n opposit there deeided that reeri that corrupt practices, ri..n w ■hert atory < the : t d 'liver ■har'Jies co'.t ■d thi> w Id not bo nitnle. and .1 was not e'ainict a. colli OlliV 1)0 iiKpiIred into ou of his dutv under the trial before the .liul-e in ihe perlormanc the -'lib Section. W heUe\e lecision i> .ouni ,1, though if we had sivn aiiylain III thai that meiiii- tlme to change our opinion, 1 have no u>)i ,nd mvselt wouh \ have been w d)l ihat my colleaiiue'^ iiui'«e that was S:l .own to 1)0 lu-ele ■ferabit iUing to atlopl the i ■■■ ol having seen an,,ihiug lo alter our views, w ■0 arcvoi' the opinion tni id iniismiii'h as tliis obj this rule nuisi made absolute, iii introduced after the judgment lb .'lion at W(! 1 iible daiHo wa-* lelivereil on tlie main ion arism quest application o think we are L' Oil the preliminary obj ,w lieeii \v ,f the i'etitioner ha bound bv (hose <'ircun. stances >•; luiiH, ■hoi I;, to gi an< as 8Ucce reason w hv 110 costs were given o II the rule \e I ill •oM> the we The />,.,slul ■iitioii of the Petitioner m that ease had been linn |C( I •.'I If I to loruon ' ,{' tlie an jwiU' that we strui k 01 \e wuiiM lia\e I'elt boiuul to give costs. NEWTOX L. MAC KAY, Petiiioner. A'S. WILLIAM McDOXALD, Eospondent. Recriminator,, charges against the retitioncr struck out of the mmcor. no ...annor an an.wov to tl.o u..tui. co„ ai d^ n ^e pSion ■'"'aud that the same ^vel•e irroguhtr and contrary to law. ^ ' '"''^ The rule was argued on Seiitenibei' 1st by K L "Wentl,o,.ho v.r. • support, and Hon. James .McDmiahl, eontni ^^tatherbe, Esq., in IIox. W. A ]lENRY, Q.C., now (September 1st), delivered the judgment of the Court as follows :— W'e haxe already decided that where the seat is not claimed, no re.nmniatory charges can begone into as sucli, even before a Jud-e on the trial, and that they can only be inquired into under (he section already mentioned in our previous judgment, (Section 20) We are also of opinion that the Petitioner in this case beinpt the Qtround tlmt 11(1 were in tition ; aud 'be, Esq., in , delivered 97 as Judges, but merely incidenfally, that there is a petition filed against the Petitioner in this case, upon which the merits of his return will be decided. Independently of this circumstance, we feel that we would have no right to allow the trial of the recrimina- tory charges, and that the clauses referring to such charges should be struck out. The Petitioner is an elector. The Eespondent holds the seat rightfully or wrongfully, and the Petitioner as an elector, has a right to demand tliat no person should occupy that seat unless duly elected. lie had therefore a right to petition, which is not in any way affected by the fact of his being a mem- ber iiimself. 'i'he words of the statutes are not to be got over without a case, and the rule will bo made absolute with costs. laimed, no re a Judge under the Jction 20). e being a petition, he statute idalo, it is opriely of ed by the ially f'lom r>vi(led for he House wouki be The fact Commons id a case asked by have felfc I we can ' manner these re- aow not