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Les diagrammes suivants illustrant la mAthode. rrata :o pelure, n A □ 32X 1 2 3 1 2 3 4 5 6 ELECTION CASES REPORTS OF DECISIONS rSDER THE DOMINION AND ONTARIO ELECTION ACTS, AXI> TICK ONTARIO VOTERS' LISTS ACT. 1891-1900 WITH A TABLE OF THE NAMES OP CASKS REPORTED, A TABLE OK THE KAMES OK CASES CITED, AND A DIGEST OP THE PRINCIPAL MATTERS. REPORTE .-NDER THE AITIIORITY OK THE LAW SOCIETY OF UPPER CANADA. VOLUME IL TORONTO: CANADA LAW BOOK COXiPANY, Law Book Piblishers, ;JU Toronto Street. 1901. Entered according to the Act of Parliament of Canada, in the year of our Lord one thousand nine hundred and one, by The Law Society of Upper Canada, in the Office of the Minister of Agriculture. CANADA LAW BOOK COMPANY, LAW PRINTERS, TORONTO. rn TABLE OK THE CASES REPORTED IX THIS VOLUME. East Elgin (Provincial) |qq East Middlesex (Provincial) j^q Halton (Provincial) j-^ Kingston (Provincial) ^^ Madoc, Re Voters' Lists of . . 1,.^ ,. loo Marmora and Lake, Re Voters' Lists of io2 North Waterloo (Provincial) 7^. Ottawa (Provincial). . . ^, ' 04 iieyniour, Re Voters' List of ^.g St. Thomas, Re Voters' List of 154 South Essex (Dominion) g South Leeds (Dominion) , South Perth (1894) (Provincial) ' ' ' 3Q South Perth (1898) (Provincial) 47 South Perth (1898) (Provincial) ' " 53 South Perth (1899) (Provincial) ' . 144 West Algoma (Provincial) jo West Elgin (No. 1) (Provincial) " ' 33 West Huron (Provincial) ' West Wellington (Provincial) jg TAHhK OK TIIK NAMES OF CASES ( ITEI) IN THIS VOLUME. A. Name OF Cask, WllKRK RkVOHTKI). Page of Vol. Aylesbury Cose (I«S(>),4 0'M. &H. 59 ... 24 B. Berthier Cjwe (IKS-l), ft H.C.R. H)2 78 BtHhiiin Case ( IK(M>), 1 O'M. & H. 1 17 24, 89 Bothwell Ca.se, Hawkins v. .Smith (IH«4), « S.(.'.K. (J7« 40 Bridgewuter Case (18IJ9), 1 O'M. & H. 116 115 Carrickferpiis Case ! (1880), I OM. & H. 91 24, 78, 89 Cirencester Division of the County of Cloucester (1S93), 4 O'M. & H. 190 40, 45 Cookney V. Anderson (1802), 31 Beav. 4,'>2 15 Credits Cerundeuse (Limited) v. Van Weede (1884), 12 Q.B.D. 171 15 D. DundasCase ^1875), H.E.C. 208 Urummondv. Drummond (1800), L.K. 2 Ch. 32. 97 15 Ea.st Elgin Case (1879), H.E.C. 772 24, 77 East Middlesex Case (18H.H-4),1 E.C. 250 23, 77 East Peterborough Case (1875), H.E.C. 251 97 East Si mcoe Case (1884), 1 E.C. IVM 77, 78 East Toronto Case (1871), H.E.C. 71 77 O. (Jalusha V. Butterfield (1840), 2 Scam. III. 227 83 • Jlengarry Ciwe (1871). I1.E.C.8 24, 77 (Joodsell V. BoyntoD (18.S9), 1 Seam. (HI.) 555 83 VI CASES CITED. [vol. H. Namk of Cahk. Wiikkk Kki'oktrh. ' I'ugo of Vol. Huldimand CuHe (1888), 1 E.C. 5'M 101, 106 HiildimandCumMNo. 2) (1890), 1 E.C. 572 101 115, IIU, 123, 124, 132 Hamilton Case (1891), 1 E.C. 502 77 Hamilton v. Walker (1892), 56 .1.1*. 583 [1892], 2 Q.B. 25 159, 162 Ha«tingH Case (1879), H.E.C. 540 78 HawkinHv, Smith (Both well Case) (1884), 8 S.C.R. 676 40 Hereford Ca»*e (1869), 1 O'M. & H. 194 24 I. Inhabitants of Springtield v. Inhabi- tants of Worcester (1848), 2 Cush. 52 83 3. Jacques Cartier Case (1878), 2 S.C.R. 246 Jenkins v. Brecken (1883), 7 S.C.R. 247. 24 62 K. Kingston Cose. (1874), H.E.C. 636 24, 77, 78 U'nnoxCase (1885), 1 E.C. 422., London Case (1875), H.E.C. 214 Louth Case 3 O'M. & H. 161 Ludlow V. Johnson (1828), 3 Ohio 553 ... 159 24 .21,24, 26 83 M. Mallory & Co. v. Hilos (1862), 4 Mete. (Ky.) 53 83 Mallow Case (1870), 2 O'M. &H.22 21, 24 Middlese.\ Case (1876), H.E.C. 386 78 Muskoka Case (1876), H.E.C. 458 159 Muskoka and Parry Sound Case (1884), 1 E.C. 214 88, 97 Mc. McQuillan v. (xuelph Junction R.W. Co., Re (1887), 12 P.R. 294 159 N. North Middlesex Case (1875), H.E.C. 376 23, 24, 77, 78 North Norfolk Case (1869), 1 O'M. & H. 242 24 North Ontario Case (1884), 1 E.C. 1 24, 77, 78, 89 North Victoria Case (1875), H.E.C. 671 40, 63, 136 Norwich Case (1886), 4 O'M. & H. 91 24 [vol. XIX.] CASES CITED. Vll P. ge of Vol. .101, 106 101 , 124, 132 77 Q.B. ...169, 162 78 .. 40 24 88 24 62 24,77, 78 Namk.»)K Ca.sk. Wiikkk EKroKTKH rupe of Vol. Perth Case (1H92), 20 H.C.R. .331 26 Phillips V. Ooff (1HH8), 17 Q.B.I). 806 40 Prescott Case 1 E.C. 88 78, 88, 97, 98 R. Regina V. Brightolmstone (1864), 4 E. ft B. 236 73, Regina V. Castro 9 Q.B. 3.'i0 Reirinav.Fry (1898), 19 Cox. 136 159, Rec. V. Hazen (1893), 23 O.R. 387 (1893), 20 A.R. 633 Reginav. McBerney (1897), 3 Can. Crim. Cas. 3.39 .169, Regina V. SUipelton (1863), 1 E. ft B. 766 73, Rochester Case (1892), 4 O'M. ft H. 156 74 84 162 162 162 74 24 Shelburno Case (1887), 14 S.C.R. 2.'i8 18 SligoCase (1869), 1 O'M. ft H. .300 24 Smith V. James (1861), 11 C.B.N.S. 62 167 Smith V. Rooney (IS-^-i), 12 U.C.R. 661 83 South Norfolk Case (1875), H.E.C. 669 24, 77 South Wentworth (1879), H.E.C. 6.36 44 SUte V. Strauss (1878), 49 Md. 299 78 Stepney Case (1886), 17 Q.B.D. .'54 34 Stroud Case (1874), 2 O'M. ft H. 179 24 ... 159 24 21,24, 26 83 83 .21, 24 78 . 169 88, 97 159 24, 77, 78 24 77,78, 89 40, 63, 136 .. 24 T. Taunton Case ^(1874), 2 O'M. ft H. 74 78 Thornbury Division of Gloucestershire Election Petition, Re (1886), 16 Q.B.D. 746 40, 43 W. 21, 24 24 86 57 78 78 78 77 Wallingford Case (1869), 1 O'M. & H. r^9 Welland Case (1871), H.E.C. 47 Welland Case (1884), 1 E.C. .383 78, West Elgin Case (1898), 18C.L..I. 249, (1898),2E.C. 38 47, 48, West Hastings Case (1879), H.E.C. 5.39 West SimcoeCase (1883), 1 E.C. 128 77, West Wellington Case 1 E.C. 231 Westbury Case (1869), 1 O'M. ft H. .50 2i, Westminster Case (1869), 1 O'M. ft H. 92 116 Wigan Case (1881), 4 O'M. & H. 13 117 Williams V. Mayor of Tenby (1876), 5 C.P.D. 1.3.").. 67, 68 Windsor Case (1874), 2 O'M. ft H. 89 116 Woodward v. Sarsons (1875), L.R. 10 C.P. 733 40, 63 Y. YoughalCase (1869), 1 O'M. ft H. 29! 24, 78 ERRATA. Page 47. Head-note, 6th line, for " them " read "it." Page 57. Line 13 from J.ottora, for "(1S89) C.L.T. Oec. N. 249 " read (1898), 18 C.L.T. Occ. N. 249." Page 04. Line 3 of head-note, strike out the word "that" alter "essentiaL" Page 144. Line :J from bottom in liead-note, after "1897" insert " ch. 12." Page 150. Head-lines. For "Payment of Petitioner" read "Payment by Petitioner." For "Claim of Security Deposited" read "Claim on Security Deposited.'" REPORTS <»!•' ELECTION CASES. SOUTH LKKDS. DOMIXIOX ELECTION, Before Mk. Justice Oslek in Ciiamhers. September SO, 1S91. Or/oh, r .1, ISOI. Nathan Kelly, Petitioner, V. George Taylor, Respondent. Ch,u,i,.ofSolinfor.-l{;,,h, to ohjert t„ Wlthdm,,-,,! of ,. tit in,, -I), no.it «w Sec,„;t,,jn,- Co.t.-Tin.e to up,,/,, to s„l,.stit„t;. L!t!J,,,. ^ The only pc-ison who ,.,„, r«,„,,lain of an onlor r.hunfcnnjr solicitors i„ «„ fh- t.on matUT ,. th.- fornuT ...H.-ito, . an.l his ritrht is « li ,i V- .kh " S ."'H^'i^^^iHoi:."" ••""^"'^'' ' "- - " '-^ "^ '^ -i-;' l^^et An ordinary volrr has no status t<. attack the onh-r Kvcn ,t tlu-a,.,.li,.ant her,, had the rij^ht to move against an or.ier allow- iny: the petition to he withdrawn:- >'Hiauow. the application to with-a power IS limited in that respect. If no appli la n : '„ ..".^''^'d //e/f/, that the application here was too late " I— vol.. HI. K.C, 2 DOMINION ELECTION. This was a motion (1) w set aside an order changing the petitioner's solicitor ; (2) to set aside an order giving the petitioner leave to withdraw the petition ; or (3) to reinstate the petition and substitute the applicant as petitioner. M. 0. Cameron, for the applicant. Armour, Q.C., for the respondent. OsLER, J.A. : — (1) Motion by W. P. Dailey to set aside an order of 4th July, 1891, changing the petitioner's solicitors from Messrs. Ross, Cameron & McAndrew to Harvey &; Macdonald ; (2) to set aside an order of the 13th July, 1891, giving the petitioner leave to withdraw the petition on the ground of irregularity as set forth in the amdavits filed on the present motion, or in the alternative ; (3) to reinstate the petition and substitute Dailey as petitioner in lieu of Kelly. The applicant has no loctis standi to attack the order of the 4th July changing the solicitor. It was and ia no concern of his, and, qua order, does not affect him. The only persona who could complain of it are the former solicitors, and they, only so far as their right to or lien for costs might be affected, which is in this case not at all, and they do not move. I therefore consider that order only so far aa it may be considered as part of a scheme to get rid of the petition. It is, though obtained ex parte, admittedly regular, so far as any objection on that ground is concerned : see Con. Rule 463. It is suggested that it was obtained by suppression or non-disclosure of material facts, but this is denied, and my brother Maclennan informs me that it was not the case, and that he considered whether or not it was proper SOUTH LEEDS. 3 or necessary that notice should be given to the solicitors on the record. He determined that it was not necessary, inasmuch as there was no application with regard to or artecting the deposit which had been made as security for costs. Next, as to the order of the 13ih July, 1891, giving leave to withdraw. I will assume that the applicant is a per.son who can move against it, although if I had to decide that point I should require more time for consideration, and I am at present of the contrary opinion. The irregularity complained of is that there were no affidavits of the financial agents of the sitting member and defeated candidates. The practice does not prescribe the evidence, except as regards formal evidence to be given on the motion for leave to withdraw, and although it might be well to require the affidavits of the election agents, as the practice under the English C. & I. P. P. Act 1883, 46 & 47 Vict, ch. 51, sec. 41, provides, and as I think I shall be disposed to do in future, they are not necessary here unless the Judge before whom the motion is made insists upon their production, and it has not been usual to do so. The motion, therefore, was not irregular on this or any other ground that I can see. The notice of motion was published even more fully than was necessary, as it was published in two newspapers in the electoral division, and there is every reason to believe that it was brought fully before every one who was interested in opposing the motion. Indeed, on the applicant's own shewing, the failure to oppose it was caused by the mistake or carelessness of the gentleman who undertook to send Mr. Cameron the newspaper containing the notice of intention to move to withdraw, in sending it to the wrong address. Moreover, as the motion to withdraw seems to have been anticipated some three weeks before the 27th July DOMINMON ELECTION. (see the applicant's affidavit sworn on that date), it is somewhat surprising that all parties were not more diligent than they appear to have been to discover whether proceedings were being taken to that end. I must hold that these proceedings were regular, and, conceding that the now applicant is in a position to urge the facts disclosed upon the depositions and affidavits now filed, as reasons against the withdrawal and for rescinding the order, I am of opinion, after fully consider- ing them, that they would not have been sufficient, and are not sufficient, for that purpose. I cannot say that they prove either collusion or that the petitioner did not in good faith authorize the application. The order for leave to withdraw, therefore, cannot be interfered with, and I must add that even if it had appeared that there was reason to suspect collusion it would seem that the applicant would have had the right to withdraw, tliough the Judge would in that case have been at liberty to order that the deposit should remain as security for the costs of the substituted petitioner. It is not, however, necessary to determine this point. Then, can I now give leave to the applicant to inter- yene, and make an order to substitute him as petitioner? I think not. What the Act provides is that on the hearivg of the application to withdraw, a person may apply to 1)0 substituted as petitioner, sec. 56, sub-sec. 3 : And the Rule (41) that any person who might have ))een petitioner may, within five da^'s after publication of the notice, give notice (as j)reHcribed) of his intention to appl}' (it the heavlDg to be substituted for the petitioner, but that the want of such notice shall not defeat such application if in fact made /■-. >< m SOUTH RIDINCJ OF ESSEX. 9 ■ that it wi! had ;oulSth of the month, he is unabli' to give us anythintj to slifw why a new petitioner should be allowed to inter- vene, except his own unsupported statement, on infor- mation and belief, that there has been collu.sion, and that corrupt practices have prevailed. Aijainst that, as my learned brother says, we have the statement of both the eoun.^^el for the petitioner, and for the respondent, that no collusion has taken place. Respondents in these cases, the sittinj; mend)ers, have rijihts.iind thos(> rights slnjuld be respected. This petition has been j)endintj since last A])ril,and neitlu'r the petitioner noi' the person who is proposing to be substituted as peti- tioner, has Ix'en able to shew any good reason why the peti- tion should any longer remain upon the files against him. If evidence of collusion between the petitioner and respon- dent had been given here, it would undoubtedly have been our duty to adjourn the incpiiry, in order that a new petitioner might, if possible, be substituted, although the ditficulty in the way of a substitution of that kind is very great : but, there being no such evidence, I think we have no course open but to dismiss the application, and dismiss the petition. The petition is dismissed with costs. A. H. F. L. -VOL. n\. K.C. 10 PROVINCIAL ELECTION. KINGSTON. PROVINCIAL ELECTION. Before Osler. J. A., in Chambers. Toronto, Septemher J^iul, 1894. Richard Vanalstine, Petitione7\ V. William Harty. Respondent. Cross Petition — Security for Costs. Under sec. 13 of the Controverted Elections Act, R.S.O. 1887, ch. 10, security for costs is required or'y in the case of the original or princi|ml |)etition, and not in that of a cross petition. This was a motion by the respondent to set aside a cross-petition presented by one Vanalstine, complaining of unlawful and corrupt acts by the candidate, who was not returned. No security for costs was given with the cross- petition, and this was alleged as an irregularity. E. F. Blake, for the respondent, contended that by sec. 13 of the Ontario Controverted Elections Act, security for costs was required upon the cross-petition as well as upon the original or principal petition. J. Bicknell, for the cross-petitioner, contra. OsLER, J. A.: — Previous to the year 1874 there was no power to tile a cross-petition for any purpose. The Act provided merely for the presentation of a petition against the sitting member to set aside the election and subsequent proceed- ings thereon or connected therewith. The provisions as to security foi' costs were the same KlN«JSTON. 11 le same as they now are except that by 30 Viet. eh. 10 sec. 39 (O.) 1876, the Hecurity wa.s to be by defMJHit of $1,000. These provisions, w) far as they need here be noted, are found in sec. 13 of the Controverted Elections Act, R.S.O. 1887, ch. 10, which, under the heading; "security for co'ts," enacts that at the time of " the prosecution " of the petition, or within three days thereafter, security shall be given on behalf of the petition for the payment of all costs, charges, and expenses that may become payable by the petitioner (a) to every person summoned as a witness on his behalf, or (h) to the member whose election or return is complained of. This section was perfectly apt and proper in the case of a petition presented complaining of the undue return or undue election of the member. It is still the only case the section provides for, although the right to file a petition against the defeated candidate is now given by sec. 7 of the Act, which is now placed in the group of sections headed " presentation of petition." That section was at first an isolated, independent enactment: .sec. 1 of 38 Vict., ch. 3 (O.), 1874. It enacts that in case a petition is presented against the refUrn of a member, the respondent, or any other person authorized by law to present an election petition, may> within 15 days after the service of a petition against the return, file a petition complaining of any unlawful and corrupt act by any candidate at the same election who was not returned, whether the seat is or is not claimed by him or on his behalf ; and the trial of such petition shall take place at the same time as the trial of the petition against such member or respondent, or at such other time as may be appointed. In the revision of the statutes this section now finds its place in the group already spoken of, headed " presenta- tion of petition." It can hardly be disputed that had the question arisen prior to the petition, the contention would have been utterly without foundation. 12 PROVINCIAL ELECTION. Tlu'ic could have bocn no pretence for holding that a clause in the general Act recjuiring Hecurity to be given I'or the sitting member's costs on the presentation of a petitior against his return applied to the case of a cross-petition authorized l)y the amending Act filed against the dei.>ated candidate. The simple answer was that the Act had not provided for the latter case, as wouM have been at once manifest had it been attempted to give the security by recognizance. The revision has, in my opinion, made no ditierence. The .security rerpiired is upon the pi*esentation of a ])etiti()n against the return of a member to secure the mend)er's costs, not upon the tiling of a cross-petition against one who is not the member, but the defeated candidate. It is not the deposit which is recjuired, as the respondent contends, but the dejiosit as secuiity, and the object of the security .shows that it is not and cainiot be reijuired on a cross-petition, as it could never be made available by the respondent on such a petition. Motion dismissed with costs to the petitioner in any event. G. F. H. WEST AI.«}OMA. 18 ing that ;y to be ^'iitatioii jiHc ot" a ict filed iWLT was ease, as inpted to I luiH, in juired is uiii of a he tiling iber, but kvhich is ;posit as it i« not lid never ition. in any F. H. WEST ALOOMA. riiOVIXl^IA A KL Kcriox. Before Osler, J. A., in Ciiammers. ToKONTO, Sfjtffinhtr .h[cQrEEN, Petitioner, V. . George Tucker, Respondent. Oomi/i/ j)r(ivti<-(M — Treat iinj — Candidate — Corriijit iiiti nl — llidii'. The uiulis|mte(l evidence shewed that the respondent fioni tlie time of liis nomination as the (.•andichite of his party frecpiently treated the electors and otiiers in the 'lar-rooms of hotels whilst enpij:;ed in his canvass. He was not a man whose ordinary habit it was to treat, nor one who. in the course .of his ordinai'V occupation, fieiinented bar-rooms : — Held, Osi.KK, .1. .X., dissentinj;, that the trial .ludires properly drew the inferi'Mce that the ti'eatinji' was done with corrui)! intent, >o as to avoid the election of the respondent. Remarks by Bihton. .T.A., on the amendment tit Teviotdale ; John Eai'l's hotel, at Yatton ; Dowd's hotel, at Arthur: Wilson's hotel, in the town of Palmerston ; Snider's hotel, in the villao'e of D'-ayton ; and other places to the petitioner unknown. The following; electors, among others, are tliose with whom the otience is alleovd to have been connnitted (nanuno' and f(ivin(( the place of abode of eij(hteen men.) The followinj; is a summarv of the evidence uivcn at the trial under charfre 14 : — Robert Scott said he lived in the township of Minto, and was an elector in the West Wellinoton division ; met Tucker at Henry's hotel, at Clittbrd, on the 27th Decem- bei', 1893, and was introduced to him ; Tucker was intro- duced as the Patron candidate : on that occasion Tucker treated fifteen or twenty people, of whom the witness was one, to driid 18 PROVINCIAL ELECTION. and again lietvveen nomination and polling ; on the occa- sion in April there were a number of treats and Tneker paid for one, treating ten or twelve persons ; he did not treat in June. John Scott said he was one of those treated by Tucker in Hemy's hotel at Clifford, one day in tlie second week of April, 1804 : Tucker was introduced as the Patron candidate : eight or ten were present ; politics were being discussed at the time ; the next day the witness was called over bv Tucker to Murner's hotel in the same villaire : he was introduced to Murner as the Patron candidate : only four persons were in this treat. W. H. Scott said he lived in Clifford, and was present on the 27th December, 1893, on the occasion spoken of ; treating was going on, there was quite a crowd, and they were all talking politics to one another ; Tucker said he was the Patron canditate : he was talking politics when treat- ing : twenty or twenty-five were present when a general treat was called by Tucker. R. McWilliams said he lived at Drayton and knew Tucker ; remem])ered seeing him in the Queen's hotel at Drayton after he had accepted the nomination of the Patrons, in Janiuiry, 1894 ; Tucker treated ten or fifteen persons in the bar: tliey were discussing ])olitics outside, and Tucker called them in : he was then being introduced as tlie Patron candidate : saw Tucker again in the same hotel shortly before nomination da}^ : " ([uite a few " w^re present, discussing election matters : Tucker ti'eated : tliere wei'e electors present ; Tucker was canvassing votes on both occasions ; all the different parties in politics were represented among the persons met togethe)* on these occasions ; witness himself was a Conservative, and a supporter of Allen, tlie other candidate. Daniel Hambly said he met Tucker in O'Boyle's hotel in Drayton, in Januaiy, 1894, two or three times; on two of these occasions Tucker treated : the first time there "*% WEST WELLINGTON. 19 lie occa- Tucker i did not ' Tucker ad week Patron sre being as called lage : he ,te ; only s present oken of ; and they id he was len treat - \ general id knew hotel at of the or fifteen oi;tside, itro4 : he was there on different occasions between that and election time : he treated twice : first, eight or ten persons, and second, three or four : they were general treats : he was there as Patron candidate ; the tir.st treat was in Januaiy, the second in April : had never seen him ti'eiit before that ; did see him treat once since the election. George Ross .said he knew the Wilson hotel at Palmer- ston : .saw Tiu-kei- there a couple of months before the election ; lie was talking politics : asking for support as a candidate : about five or six per.sons were present: Tucker Avas introduced as the Patron candidate, and treated once. Ritchard Leitch, a voter in the township of Minto, said he remembered Tucker treating at the local election in Palmerston, Harriston, and so on ; saw him between Christmas and New Year's day : met him after that and had a drink at his expen.se at Wilcox's hotel in Palmerston; tlnvt' oi- four persons were present, talking about the election : met him in C'littbrd and had several treats : could not say who paid then. Frank Heiman said he lived at Glen Allan and kept a hoU'l thei'e at the time of the election; .saw Tucker there before the clt'ction : tliere was a meeting at Glen Allan, and Tucker was there as ean! .:>fAHON, J.:— I i I (entirely concur with what my learned brother has stated. It is a totally different case from the East Middle- WEST WELIJXCiTOX. •23 itli tliis tn. 22 ; This is an appeal from the judgment of my learned brothers Ro.se and MacMahon, before whom a petition against the return of the defendant Tucker as member of the Lcirislative As.seinblv for West Wellincjton was tried. The election was held void on the ground of corrupt treat- ing, consi.sting of various acts of the respondent in paying for drinks for persons in ditf'erent hotels or drinking places. A large amount of evidence was produced Iw the petitioner to prove liis case. The respondent called no witnesses as to the treating charge, No. 14. But his examination for discovery, with over 1200 questions, was put in. It does not throw imich light on the treating question. I think it better to give my learned brothers' judg- ments on this treating question. [The Chief Ju.stice read the judgments, and continued :] 4 — V(>I_ III. K.C. i se J'UOVIXCIAL ELECTION. Thi.s oiHo has been very fully jiiul very ably ar^juod before us in appeal from thin jud^iiuuit, and all the cases bearing on the subject of con-upt treatinjjj in Kn<^land and liere have been cited and discussed. I have examined the evidence on which the jud;;ment pi'oceeded with much care an\. 27 y arffuod th(! ciiHes rlivnd and iuilo;tiU'nt 1(1 to tho It. iit's iiriju- diui; tlmt rnipt " is* ml conso- le purity \Vi' are red at no md drink ' dt't'lares i, with a :e oF such y case in ) 1880 ui ■at dndife le oljiject intends ncint;' an of l)einiif upon the ion is to a<;ain, ise he is ises it in ;in;arded them. 'i'he evil is .serious — the Le«^isiature has striven, within reasonable limits, to put an end to it. I am of opinion, on the wdiole, that there is no »;round for our interference. KiRTox, J.A.: — The learned Judi^es who tried this ca.se were (piite alive to the fact that in order to ])rini' the case within the statute it was absolutely necessary to establish that the treating was done corruptly, in order to be elected, and that the motive influencing .such an act had to be proved and establi.shed beyond all reasonable doubt. It being then a question of intention that had to be a.scertained, as all (juestions of intention must (to (juote '"^ St I'ltOVIXCIAh KLKCTION. tln' lim;;im^(! of a very I'liiiiiciit .Iiidgu), by lookiii;^ at the oiitwiiid ai'ts of tlio parties and Hcciii;; tlifir flc^frt'c and t'xtrnt, and then drawin;f tlic concluHion- and that con- clusion roiiM only In- projR'i'ly arrived at on a eonnidera- sion of tilt' whole of the evidence. It i.s perfectly inanif(!Ht, unless a chan;;e lias l»een ettected by the rectuit amendment to the Klection Act,* liat mere treating;' dui'in^ tlu; eli'ction, under the section in (piestion, caiuiot l)e re^^'arded as a violation of it, unless it is done coiruptly with tin; intention of inlluencinif the elector in order that the candidate whose at^ent he is may be elected — and it would be very much to be re<;retted if the law were construed otherwise. 'J'he:- was alnuidant evidence in this case to warrant the conclusion at which the learned Judges arrived, and 1 think it impossible to say tliat they were wrong, and their judgment, thereiore, ought to be attirmed. Since the trial the hiw lias been amended by a clause which may })rove rather difKcult of interpretatitni. No Court or Judge has ever held that it was a suHicient answer to a charge of treating electors, that the person charged had been in the habit of treating, although pi-oof of such a hal)it has always been considered as pertinent evidence to be taken into consideration with the other facts of the case in cominj; to a conclusion as to whether the treating was done corrujjtly with the view of influenc- ing the vote of the elector — ^in the same Way as it would be pertinent to shew that the elector was a warm Hupi)orter' of the candidate and needed no such stimulus. If an amendment to the existing law was considered necessary, it seems to me it would have been nuich more equitable to have provided, as has been done in England, that, "during certain days, treating, though not corrupt, * 58 Vict. ch. 4, sec. 21 — It shall not, upon the trial of an election j)etition, be a sufticient answer to a charge of treating electors that the person charged had been in the habit of treating. \nii at the rfrycv iiiid tliiit con- ('()ii.si(l('ni- luiH Im'(!11 urn Act,* ■Ht'ction in , unlcsH it iiciiijLf the If is may frottud if ) warrant 0(1, and 1 ong, and ' a clause ion. No sutiicient c person iot' pertinent lie otlu^r whether influenc- it would upporter nsidered icli more Midland, corrupt, n election s that the 1 1 WKST WKLIJNOTON. 29 1 should he JileMMl, ,sul)jeetin;r the party to n penalty hut m not sutiicient to avoid an election. f Mr. .Justice MfU'Malujn has poinfrd out in his Jud;,niient ^4 tliat th.' huhit of the candidate in tin' ca.se referre(| t,> was K merely ,i pircv ,,f evidence which tenrled to ne^riitivc the f corrupt intent ; and that, 1 trn.st, is .still the law. 4 Ma«ij:.\na\, . I. A., concurred. OSLKK, J. A.: — r am uiiMhle to come to the same conclusion. The case tmns entirely upon the infeivnce to he drawn from the undisput.d evi.lence, and not upon any .piestion of en-dihility, and it is now the province of this Court to pass upon tlu" evidence and to determine for them.selves what is i.roved by it. In (l(,i„o; .so we ou^dit not to dis- re^iard the .serious con.secpiences which will i-esult to the defendant from an adverse Hndin^r, and if the evidence fairly adnuts of a lenient view bein^^ taken, we should give him the heneHt of it. For my own part, I am of opunon that, having regard to the time at which and the manner ni which the treating was done, and to the well- known custom of the country in regard to treating, a corrupt mtent cainiot pi-operly be inferred. I think that the appeal should be allowed and that the cross-appeal should be dismissed. Appml dismim-, February Sth, 1S95. Toronto, March ^nd, I'^'Jo. William Malcolm, I'etif loner, V. John McNeill, Respondent, A/ien.s — Xon-re-tidentu — Vofiiif/ without rif/hl — Actual knowledtje — Aijvucy — Erideuce—li. S. O. 1SS7, c. 'J, .v. J60. Actual knowledge on the jmit of a voter that he has no right to vote is necessary to constitute a corrupt practice under K. B. O. 1887, c. 9, s. 160. Evidence to establish agencj' discussed and found insufficient. This was a petition by William Malcolm mider the Ontario Controverted Elections Act, R.S.O. 1887, cli. 10, in respect to tlie election of a member of the Legislative Assembly for the electoral district of the South Riding of the county of Perth, on June 19th and 2()th, 1894. Amongst other charges of corrupt practices referred to in the T^ctition and specified in the particulars, were several -^'larges under sections KiO of the Ontario Election Act, R.S.O. 1887, c. 9 in respect to persons alleged to be agents of the respondent John McNeill, the member elect, who voted or induced or procured persons to vote at the election knowing that they or such persons so induced or procured had no right to vote, the particular dis(]ualiti- cations referred to being either non-residence or alienage under sec. 7 of the Act. % COUNTY OF PERTH. 31 H. — A(jenci/- t to vote is tS7, c. 9, s. luler the 2h. 10, in giHlative liding of f erred to 1-8, were Election lei>-ecl to member 3 vote at nduced isqualifi- alienage 'I'lie trial commenced at Mitcliell on January 30th, 1«}>5, and continued on February 2nd and 7th, when it was adjourned to Stratford. - (Jfuo-. in'o- w 311. B of this tion Act , voting le}' had ualifica- he Act, md facie tered on of tho.se must of turaliza- 'veuted ote if he the time ction. may be of tiiese .3, two <;roun(lH, iion-rosidonee or aliena^jjc, and where the votci'.s were mnnlK'r.s of the order of Patron.s of Industry, I iliink it wouM not be dilfieult under the facts in t'viflence to hold that «'aeh voter was an at;ent of the resi)ondent. But the (juestion is whether a corir.pt practice was made out. The voti' was in every instance received without objection, and without reciuirino- the voter to take the oath, and 1 find as a fact that in every in.stance the voter cast his vote in good faith, believing that he was entitled to vote and in ignorance that by law he was di.scjualitied. Now. if ,sec. !()() hatl said that every person who votes^ not beiuir leMallv entitled to do .so, shall be guiltv of a corrupt piactice and liable to a penalty, his innocent ignorance of his di.s(iualitication would be of no avail. But the lanmiage of the sentence is, " knowing that he has no right to vote." Under that form of expression it is to my mind perfectly plain, and it is the view I have always held, that what the statute requires to be proved is actual knowledge by the voter that he was doing something that is forbidden, not merely proof that the vote is bad and that the voter knows the facts which in law make it so, but tiiat the voter knew he was casting it without having the right to do so. He may have known the facts, but unless he knew also that they disijualitied him — knew that he was doing wrong in voting — he was not guilty of a, c'irrupt practice. The very object of the oath is to clearly bring home to the mind of the voter the facts he must swear to — the facts which must exist in order to (|ualify him. If lie takes a false oath, there will probably not be much difficulty in bringing him within the section. What I have said applies as well to the case of one who induces or requests a person on the voters' list to vote. He must know that such person had no right to vote, or it may be enough that he should persuade him to take or insist upon his taking the voters' oath when reluctant to do so, or when he would not have taken it but for such persuasion. 5 — VOL. UI. B.C. 34 PROVINCIAL ELECTION. As to tlie alienage cases, it would strike one's sense of justice with a shock to be obUged to hold that such people as came before us yesterday were guilty of a corrupt practice or liable to a penalty of SI 00 for voting. Many of them were natives of Hanover, who were under the belief that, as such, they were British subjects, some of them having been so advised many years ago, and all of them having voted at previous Parliamentary and muni- cipal elections without objection. As late as the year 188G the question of the right of Hanoverians, born before and after Her Majesty's accession, to vote was raised in the Stepney Election Petition (1886), 17 Q.B.D. 54, and determined after argument of a special case, and it was held in an elaborate judgment, delivered by the late Lord Coleridge, L.C.J., that on tlie severance of the Crowns of the two kingdoms at the accession of Her Majesty to the English throne, Hanoverians, though resident in the United Kingdom, became aliens, and as such, were not entitled to vote. The ignorance of the votei's in the P'*esent case of their legal positioii (I speak here of the ilanoverians) would, in my opinion, have made it impos- sible to hold them guilty of a corrupt practice even liad they taken the oath. The section admits of the milder construction, and that construction we give it. I must add that, in thus deciding, we are not differing from anything which was actually decided in the Hamilton case, (1891, 1 E.C. 499) in which, as I read it, the trial Judges found actual knowledge — guilty knowledge — on the part of the persons charged witli inducing the aliens to vote. They found that it was a scheme on the part of these persons to procure the aliens to vote, knowing that they had no right to do so. Our decision is open to review, and we think, having in view the future conduct of the case and the large number of similar charges to be made the subject of enquiry, that it is proper to express our opinion this COUNTY OK I'EKTH. sense of ch people a corrupt g. Many inder the , some of ,nd all of nd muni- tlie year 3rn before raised in ). 54, and lid it was the late le Crowns Vlajesty to ;nt in the were not rs in the jre of the it inipos- even had he milder differing Hamilton ial Judges the part to vote. of these that they k, having the large ubject of nion this # iiioniing as to the construction of the section, it being one wliich we are not likely to recedt' fi-om. Charire 4() and similar ciiarges are therefore dismissed. Amongst the other charges in the particulars, number 78 charged one James Dougherty, alleged to be an agent of the respondent, witli hiring a horse and buggy for one ("liarles Sholtz to convey voters in IMitchell to or near or from the neighbouriiood of the poll at the said election. In respect to this charge, the following judgment was delivered at Toronto : — OsLEH. J. A. : — We have already determined in this case, on charge No. 40 in the particulars, that the petitioner has failed to establisli a corrupt practice in respect of those persons, agents of the respondent, who, being aliens, voted at the election. We held that to make this a corrupt practice within the KiOth section of the Controverted Elections Act, it must be proved that the person so voting knew that he was not entitled to vote. In all the cas<;s of aliens, evifjence of this was wanting. There seems no reason to doul)t that there had long been a general impression that persons who had lived in the country for many j'ears, and wlio had voted at former Parliamentary and municipal elections without objection, were entitled to vote, and that the necessity for naturalization had not occurred to them. In no case does it appear that the oath was tendered to the voter, whereby his disqualification might have been called to his attention; and, if necessary, I find as a fact that in every ca.se which was brought before us, the voter voted in good faith, believing himself entitled to do so. The .same ruling was made in cases in which the vote might have been objected to, and was bad under the 7th section of the Election Act, R.S.O. c. 9, by reason of non- residence. The oath was not put to the voter, and in the 36 I'KOVIXCIAL KLECTJOX. absence of the inl'onnation which would be conveyed to his inind hy the reu the poll, ini on the ter to the The only is agency. ;tive AsHO- Ihe been, I was made ose bodies 1 to their e it coni- ididate of ocal Con- who was opiwnent raw^n, he cNeill, to )ecause he d McNeill eeting be- )ut it is not accredited for him jailed as a ■S I witness on this point has caused a goofi deal ol" hesitation in my mind, foi- there can be no doubt that he relied on having the support, i.e., the votes, of the CVjnservatives who. as between himsell" and Hallantine, would like to .see tlie latter defeated. Hut there was no Conservative committee, nor ?et out •ked on its •andichite, i\\ as those witi) the th certain This was an appeal from tlie county judge of the County of Elirin, on a recount of ballots. The facts appear in the judgment. Ai/h'sworfh, Q.C., and E. F. Jl Johnston, Q.C., for MacNish, one of the candidates. Wallarp Xp-shitt and T. W. Crothers for MacDiarmid, the other candidate. Maclexnax, J. a.: — Appeal from a recount of votes before Ermatinger, County Judge. The learned County Judge found the votes duly cast for the two candidates to be equal. His decision with respect to forty seven votes was ob- jected to Vjefore me. Twenty of these depend on the same (juestion. The form of ballot used was identical with that in the schedule of the Election Act, except that a scroll about one-eighth of an inch wide was used, instead of the plain lines running from left to right in the form. The upright lines separating the numbers from the names were thin plain lines, similar to those in the form, and bore the same colours as the names of the candidates respectively. MacDIARMID, FiM.AV .MArl).\iiJMii). of the Towiislii|) of Aldt)on), ill the County- of Klgin, Fanner. M.vcXLSH, DoNAi.i) MArXisii, of tlie Townsliip of Srmthwoid, in the County of Elgin, Farmer. 40 I'HOVINCIAL ELECTION. Kil'tccii of tlu'so twonty biillotH wore marked in the division coiitainin'^ MacDiiinnid'H nuinber, to the left of tlie lint- scpanitin;; the nuinber from the name, and the other five were Himilarly marked in the division containing MacNisli's number, They were all counted by tlu; learned Judj^e, and his decision is objected to on behalf of MacXish. The ground of objection is that not being marked in the division containing the name, they are void, as not complying witli section 108 of the Act, whicb directs that the cross be placed by the voter on the right-hand side, opposite the name of the candidati^ for whom lie desires to vote, or at any other place within the division which con- tains the name of such candidate. The (piestion does not concern the right to vote, Ijut only tlu^ proper method of doing so. The Legislature has given certain directions for mai'k- ing the ballot. They are intended for all classes of voters, including some who are not accustomed to the u.se of paper and pencil, and some who are dull and unintelligent, and yet who have as good a rigiit to vote as the most intelligent. Therefore, if a ballot is so marked that no one looking at it can hav'e an\' doubt for Avhich candidate the vote was intended, and if there has been a compliance with the pro- visions of the Act, according to any fair and reasonable construction of it, the vote oujrht to be allowed. I think that is the result of the authorities both here and in Eng- land. Circnces-trr Dii'iKioi) of the County of Gloucester (1898), 4 O'M. & H. at p. 100; Woochvcwd v. Sarsons (1875), L. R. 10 C.P. 733; In re Thornhiwy Division of Gloucestershire Election Petition (1886), 16 Q.B.D. at p. 746: Phillips V. Gof (1880), 17 Q.B.D. 805; North Victoria, H.E.C. at p. 680; Hoivkins v. Smith (1884), 8 S.C.R. 070 (Bothwell Election Case). In the present case the (juestion is wdiether twenty persons, who had an m WEST ELCIN'. 4) 1 in tlie B left of , and tlie •ntaining , and his arked in 1, as not ■octs that and side, losires to hich con- voto, but 'or mark- of voters, ! of paper gout, and .lie most looking ote was the pro- asonable I think in Eng- loiice-ster Sdi'sons Divlsioi} B.D. at 5; North 1884), 8 sent case had an ■W m u-5er. But I think it cle.ir that tlie.se are not the divi-sions inten«led by the stat- ute. The dividing line between the luime and the nund)er is not essential. There is no need wdiatever for a separat- ing line between a candidate's name and his number, and the ballot would be perfectly goofl witluait it. JSec. G9, sub.-sec. 2, re((uires the names to be ari'anged alphalxitically on the ballot; and sub.-sec. 8 directs the innnber and name of each to be ])rinted in ink of diti'erent colours: therefore, the number is something belonging to the candidate, and not something distinct. There is no dii'ection where the number is to be placed, and it might be placed anywhere near the name, before or after it, or above or under it. It is diti'erent with the names of the candidates: they nuist be separated from each othei-. Kach must have a separate part of the ballot paper for itself, and nnist therefore be in a separate division. Accordingly, we find the form in the schedule divided bv lines drawn f)-om i-i, and to affirm the validity of ballots marked within that space. I therefore think the learned Judge's decision was (juite right, and that those twenty ballots were properly allowed and counted by him. There is another ballot. No. 117, which was rejected b(jth by the deput}' returning officer and by the learned Judge, pr.'sumably on account of having a considerable portion of the blank part on the right hand side removed, a section of ecjual width from top to bottom, and about three-tenths of the whole width of the .original paper. The part removed had none of the printed matter of the ballot upon it, except perhaps a portion of the lines from left to right, separating the names of the candidates. In (jther respects this ballot is piu'fect, and properl}^ marked for MacDiarmid. The argument, which was strongly- urged against its allowance, was that the voter might eai-ry awa^' with him the part removed, and use it to shew that he had voted for MacDiarmid. I have hesitated a great deal over this ballot, but upon the whole I do not tV'nk there is anything in the Act requiring me to reject it. Section 112 (3) recjuires '*-'^V il ^;>,' WEST E..IJIN. 48 ot paper to which dial and mmiber, ly would CrOHH HO MM' t'orin y in any I a result ucli. not- nin<{ the an of the ore I am ili^lity of hink the lat those by him. rejected J learned iiderable eJHoved, 1 about )er. The le ballot left to u other ked for ' ur<;ed •y away ; he had lot, but in the reijuires ballots to be rejected on which anythin;,' in addition to the printed luunber, and thr deputy rt'turninj^f otHcer's naiin' or initials, is written oi- niarkfd, by which the voter can l)e idcntitied. There is nothinj; of that kind re, ami I do not feel at liberty to extend the lan^'ua<;e of the Le;,d.slattne, so as to include sucii a case as tins within the prohibiti(»n, an. 8, Township of Hibbert. The same ballots were all included in the appeal before me. The objection to the ballots cast at No. 3 Downie, and No. 3 Hibbert, was that a number had been placed on the back of each ballot by the Deputy Returninii- ( )tlicer in pencil. The learned Judj^e disallowed the objection, and I think he was clearly right in doing so, inasmuch as sec. 112 (3) of the Ontario Election Act R.S.O. 1S97, ch. 9 expressly provides that " no word or mark written or made, or omitted to be written or made, b}' the deputy returning officer, on a ballot paper, shall avoid tiie same."' The objection to a good many of the other ballots is that the cross is marked in the division at the left-hand side, containing the candidate's number, and not in the division containing his name. I have given reasons in the West Elgin case* for holding all such votes good, and I need not repeat them here. The learned Judge allowed that class of votes, and I affirm his decision. I have examined each one of the whole one hundred and twelve ballots, which were questioned, and specially passed upon by the learned Judge, and I agree with his decision tliereon in each case, and generally with his * Ante p. 38. SOUTH I'EHTH. 49 reasons, with the exception of fourteen ballots allowed for Monteith, and with regard to which, with great respect, I have been unable to come to the same conclusion. These are the following numbers: 739, 741 1298 8t Marys; 2012, 2752 Blanchard ; 4192 Downey; 7655,' 8862, 8858 Logan; 6875, 7504, 7513 Mitchell; 5710 Hibbert ; 5230 Fullerton. I find myself obliged to come to the conclusion that all these ballots are either marked for the candidate Frame, or are void for uncertainty, and so cannot be counted for Monteith as they have been by the learned Judge. The difficulty is occasioned by a fault in the printing of the ballot papers. There were three candidates, Frame, Monteitii and Moscrip ; and their names were arranged in alphabetical order, Monteith being in the centre division. Frame chose black as his colour, Monteith blue, and Moscrip red ; and it is said, and 1 suppose truly, that the ballot had to' pass through the printing press at least three times, and in all these fourteen cases Monteith's surname, that is the one printed in large type, was placed either upon or above the line separating his division from Frame's, instead of being placed wholly within the division intended for it- The christian name and surname, however, in smaller type, and the addition of each candidate are wholly within his own division. I — vol,. III. K.(.', 60 PROVINCIAL ELECTION. 1 FRAME (George Frame, of the Township of Downie, in the County of Perth, Farmer. ) MONTEITH 2 (Nelson Monteith, of the (iore of the Township of Downie, in the County of Perth, Farmer.) 8 1 MOSCRIP (William Caven Moscrip, of the Town of St. Marys, in the County of Perth, Barrister-atlaw. ) In two of such cases, in which the cross was placed at tlie right hand of the hirge surname, but a little higher up than exactly opposite to it, the learned Judge allowed the votes for Frame ; but in the above fourteen eases, where the cross was very nearly opposite to the large name Monteith, he allowed it, although in one case it was exactly on the dividing line, and in all the other cases wholly above it. His reason for doing so is that the voter having placed his mark opposite to the candidate's name on the right hand side, has complied literally with the Act. And that would be so, but for the other direction that it may be placed anywhere within the division containing the candi- date's name. The difficulty is that the one of Monteith's names is in, or partly in. Frame's division, and that persons intending to vote for the latter are told they may do so by placing their cross anywhere within the division containing the name. When the Legislature speaks of divisions containing the names, and when the form of ballot prescribed and used has lines upon it indicating such divisions, I think it cannot be aaid that the lines are immaterial, or that they I. SOrTH PiSRTH. 51 may be disregarded. I think a voter intending to vote for Fran»e, and being told that he would be right if he put his mark anywhere in the division containing his name, might have marked his ballot exactly as any one of these fourteen, which have been allowed for Monteith. There is one exception from that remark, namely No 5280, in which the cross is exactly upon the line, and may have been intended for either one or the other. 'I'he learned Judge says the dividing line between Mr. Frames division and Monteith's division must be con- ceived to be drawn immediately above the surname of the latter : but I think I cannot disregard the fact that there is an actual dividing line upon the ballot, separating the two divisions, and that every one of the votes in question ma\' in fact have been intended for Frame, being within the division of the ballot containing his name, notwith- standing that they are also at the right-hand side and opposite or nearly opposite to Monteith's name, and may have been intended for him. I think those fourteen ballots ought not to have been allowed and ought to be taken off Mr. Monteith's poll. The learned judge has not, in his certificate, stated what he found the majority to be : or in whose favour it wa.s, and I can do no more than to decide that the fourteen ballots above mentioned ought to have been rejected. I think there should be no costs. G. A. K. i •. '"' 52 I'ROVIN'CIAL ELEfTIOX. SOUTH PERTH (189«). PRO VINCI A L EL EC TION. Before The Chancellor and Mr. Justice Meredith. Stratfokd, October 14, and Nortmher II, l..\ and 14, Jfi9S. Charles Schoultz, Petitioner, V. William Cavan Moscrip, Bespmideni. Ballot papers — Divmons of — Xumix of candidates in — Uncertainty a.-< to — Ambii/uity. Where the surname of a candidate had l)een printed so high up in the ballot |)aper as to appear in the division containing the name of another candidate and to lead to uncertainty as to wliich of the two candi- dates' divisions of the ballot pajier it was in it was held that the votes marked opposite to such surname were ambiguous and could not be counted for either candidate, and under the circumstances a new election was ordered. Tlie petition set out that tlie election was held on the 22nd day of Februaiy, 1898, and the 1st da}' of March, 1898, and contained the usual charges of corrupt practices as well as objections to the form of certain ballots whereon the name of " Monteith," a candidate, had been printed so high up as to appear in the division containing tlie name of Frame, another candidate, and to the counting of certain votes marked with a cross opposite the name Monteith. Bristol, for the petitioner. A ylcnvorth, Q.C., for the respondent. BovD, C. :— In my opinion, as the case stands, the better view to take of these ballots is this, that thev are ambiguous. If SOt'TH PERTH. 53 I were obliged to decide upon the absolute value of each ballot for Monteith, I would have great ditficulty. Some of them I might feel inclined to say were ballots for Monteith, having regard to the blue line at the side, but looking at the directions in the statute and in public notice, find giving due eft'ect to the judgment of Mr. Justice Maclennan, I find that in nearly all of them there is a patent ambiguit}' in this, tliat the cross is literally opposite the name of Monteith, and is also in fact within the sub-division where Frame's name appears. Now, the statute says that the ballot may be marked in either way. Tlie directions to the voter tell him that he is to mark opposite the name of the candidate for whom he votes. Well, now, looking at these ballots, and having simply that direction to guide the voter, which is to be read as part of the Act, though it is in the schedule, looking at that you will find the cross is opposite Mon- teith 's name in these ballots throughout. So that, looking at that alone, it is a Monteith vote. You turn to the body of the Act, K.S.O. 1897, c. 9, and you see there is an alternative provided in sec. 108, which says : " Upon receiving from the deputy returning officer the ballot paper .so prepared as aforesaid, the person receiv- ing the same shall forthwith proceed into one of the com- partments provided for the purpose, and shall then and therein mark his ballot paper in the manner mentioned in the directions contained in Form 1 2 in Schedule A to this Act" — incorporating that with the statutes — " by placing a cross thus X on the rigiit-hand side, opposite the name of the candidate for whom he desires to vote, 'or at any other place within the division wliicli contains the name of such candidate. " This .sentence, I tliiuk, is to be read as meaning that the ballot is in the form pre.scribed l)y the Act, that there is an accurate sub-division, so that a mark opposite the name would be inside the division which is allotted to that 54 I'KOVINCIAJ. KI.Kake the cross within any particular divi.sion ; their only directions, as I have said, are to place the cross on the right-hand side opposite the name of the candidate they intend to vote for ; and it seems to me to be of the utmost importance to bear this in mind when giving eft'ect to that which they have done. It is the intention of the voter that is to be given effect to, and so far as that intention can be gathered * Since reported ante p. 47. '#♦' 5() I'KOVINCIAL ELKCTION. from his act road in tlio Hglit of tho " directions " which the statnto jU'ovideH shall ha publishod for his " yiii(hinco." Nor does th«' Act itself recjnire or direct that the cross Hhall he within any particular division ; it rather takes it for granted that the ballots will be properly printed with the candidates' names in different divisions ; and in enlargement, not in curtailment, of the validity of the vote, provides for the making of the cross not only on the right-hand sidt; opposite the candidate's name, but also at any other place in the division wliich contains the name of the candidate. There is no provision whatever diioctly re(|uiring or authorizing the counting of all ballots for the candidate in whose " division " upon the balh^t paper the cross may be ; what is required is that " the Deputy Returning Officer aliall then count up the votes given for each candidate upon the ballot papers not rejected:" sec. 112, sub-sec. 7. Ordinarily, as a matter of course, all votes marked in the candidate's division go to him ; but in the extraordinary case of ballots without any dividing lines between candi- dates, I cannot think that votes opposite the name of a candidate are not to be counted for him ; nor in this case, if put in its worst aspect foi' the candidate Monteith, is he to lose votes carefully marked for him in accordance with the " directions foi- the guidance of voters in voting," because his nunie may, ))y a printer's slovenliness, happen to be printed upon or above a line which was originally intended to be the dividing line between his space and another candidate's space on the ballot paper. But if it be necessary to consider the (juestion whether tfiese marks are in Montfith's or Frame's division, I would agree wutli the learned County Court Ji; Ige that they may fairly be said to be in Monteith's division. No doubt it was intended that there should be an equal or nearly ecjual division of the paper among the three can- didates, and the thin, i-ather indistinct, horizontal line indicates that, but that intention was certainly not plainly, SOI'TH J'KHTII. 67 and I would say not at all, carried out. The line is one which would probably be invisible to a lar^^e number of d middle lif( the electors; to those who, having j)aHse(i nmidie lite, neec the aid of convex glasses, especially in a possibly ill-lij^hted votinjij compartment ; and, apart from this line, the e(jual or luiecjual division of th<^ whoh^ paper could have no effect. Ajjjainst these two facts there is the nnich more im{)ortant fact that the candidate's name, in bold type, indicates most strongly that at the least his space extends upward .so as to include all the space upon which the name was printed, and to the right and left in a line with it, and the more so as it iu no way over-lapped Frame's name, or name and address and (inscription, and to the fact that the left-hand vertical line includes all this space. And why should it be altogether disregarded ? These two facts seem to nie togethei- of much greater importance than the other two faHs in determining what was Monteith's space. That the candidate's space is not always confined to the lines within which the candidate's name, etc., appear, lias been decided by Mr. Ju.stice Maclennan in the Wes*-, Elgin case —(1889), C.L.T. Occ. N. 240*— a judgment in which 1 entirely concur, but one which seems to me consistent only with the view I have expressed in this case. I am, therefore, clearly of opinic^n that these votes were rightly counted for Monteith : Imt, put upon the lowest ground, they cannot be counted for Frame for the rea.sons gi l)y the Chancellor. And as Mr. Bristol has oH'ered to have the election avoided and to have a new election, it seeiri o me better to concur in that course, which will no doubt be more satisfactory to the electors at large than a continuation of this co.stly litigation and the " counting in " one of these 'gentlemen on questions al)Out which there is already .some legree of judicial disagreement. G. A. R * Since reported ante p. 38. — Rep. 8 — VOL. If K.C. IT 58 PROVINCIAL ELECTION. WEST HURON. I'liO VINCI A L ELECTION. Before O.sler, J. A. March 23, 1898. March 2(1, 1898. James T. Garrow, Petitiover, ■ V. Joseph Beck, Respundent. Ballotx — Marking— Validity of. A Ijallot proijerly marked but not initialed by the deputy- letuiiiiiii,' officer, having instead the initials C. S. which ai)peaied, and were assumed, to be those of the poll clerk, was held good. A ballot from -vhich the official number was torn off, without anything to shew how it happened, was held bad. ' " Ballots marked / or V oi' A were held good. Jenkins v. Brecken (1883), 7 S.C.R. 247, followed. Ballots marked for a candidate, but having (I) the word " vote " written after liis name ; (2) having the word "Jos," being an abbreviation of the candidate's christian name, written before his name ; (3) having the candidate's surname written on the back of the ballot, were held%ad. Aylesworfh, Q.C., for the petitioner. Wallace Nesbitt, W. D. Macjihersov, and C. A. Md-sfen, for the respondent. The facts appear in the judgment. This was an appeal and cross-appeal under R.S.O. 1897, ch. 9, sees. 129-181, from the recount of the ballots by the county judge. OsLER, J.A. : — • The following ballots formed the subject of Mr. Garrow's appeal : — WEST HURON. 59 No. 1 : Ballot 3,782. Poll No. 3, West Wawatiosli. TluH ballot \va.s couiitod by th»^ deputy returning officer, but was rejected by the county judge. It is claimed for Mr. Garrow. The ballot i.s properly marked by the voter for the claimant. It i.s not initialled by the deputy returning officer who was appointed by the returning officer for that polling place. The statement No. 12, Form 22 of the Act, being tlie ballot paper account, shews tliat ninety ballots were used, and that is the number counted by the deputy returning officer. The poll book shews the .same number of names marked therein as having received ballots. The learned county judge repoi'ts that he had found only eighty- nine names so marked, but both parties conceded that this was an error, which probably arose from the name in the schedule of persons voting under certificate Form F having been overlooked. Of these ninety ballots, eighty-nine are indorsed with the initials of the deputy returning officer who had been appointed for that poll, and one, being that in (juestion, is not so indorsed, but is indorsed with the initials C.S. The learned county judge, finding that the whole number of ballots counted was not the same as the number given out, rejected the ballot in question " as one not having the initials of the deputy returning officer indorsed thereon, and as having marks thereon " — to wit, the initials C.S.—" by which the voter could be identified, and there being room to doubt its genuineness." The last reason assigned refers to the fact, as the learned judge supposed it to be, that the tally was complete without this ballot. In the case of this particular ballot, therefore, the whole number of ballots counted agreeing with the number of names marked in the poll book as having received ballots, the absence of the initials of the deputy m PROVINCIAL ELECTION. retiirninjif officer would not be a ground for its rejection, and it ought to be counted, unless the presence thereon of the initials C.S. invalidate it as being something written or marked thereon by whicli the a oter can be identified. In a proceeding of this kind, the official to whom is committed the duty of counting or recounting the ballots, cannot take evidence for the purpose of ascertaining whether a particular ballot is good or bad ; but, whether deputy returning officer, county judge, judge sitting in appeal from the latter, I think he is at liberty to draw any inferences which are fairly capable of being drawn from the election papers before him. The county judge and the appellate judge must be in the same situation in this respect as the deputy returning officer. Now, I see by the election papers that one Charles Stuart was the duly appointed poll clerk at this poll, and comparing the initials referred to with the numerous signatures which, as poll clerk, he has affixed to the several declarations and affidavits signed by him, which form part of the election papers before me, I feel no difficulty in finding as a fact, that these initials are the initials of the said poll clerk written by him on the ballot paper. If they are, ought the ballot to be rejected inuier .sec. 112, sub-sec. 8 i I think not. 8ec. 88 of the Act enacts that the " poll clerk shall, at the polling place for which he is appointed, aid and assist the deputy returning officer in the perfovmance of the duties of his office;" and sec. 89 provides tliat "if the deput}' I'etui'ning officer refuses or neglects to perform the duties of his office, or becomes unable to perform them, either by death, illness, absence, or otherwise, and if no other deputy returning officer 'o/*.s(187o), L.R. 10 C.P. 738. " The ballot must not be so marked . as to make it possible l)y seeing the paper itself, or b}- reference to other available facts, to identify the wav in which the voter has voted. The handwritinj; of the voter would, in many instances, even if found in a single word, or part of a word, furnish a very potent means of identifyiv.g him." The count of the.se votes must be affirmed. It .seems unnecessar}^ to refer in detail to otliers which were dis- cussed on the appeal, and which were held to have been ritrhtlv allowed or di.sallowed. I shall direct the county judge in accordance with the above decision as to the ballots in polling sub-divisions No. 3. West Wawanosh, and No. 5, Ashfield. I'", I 64 PROVINCIAL ELECTION. I do not think tliat any of the appeals can justly be described as frivolous, and, unless that wei'e the case, in a proceeding of this kind, permitted by law in order to ascertain and determine, as far as possible the result of the election, it would be very hard measure to visit the unsuc- cessful party in the appeals with the costs. As to costs therefore I make no order. G. F. H. OTTAWA. PRO VI NCI A L ELECTION. Before O.sler, J. A., in Cham hers. Toronto, May 10th, 1S98. Jacob Randall, Pftitionei', V. Charles Berkeley Powell, Respondent. Return of Mtmtttrx — Whti Made — R.S.O. c/i. 11, "cc. 9 — Preitnfation of Petition — Notice of Endorsement on Petition — Necemty for Separate Notice. The return of a member V)v the returning otficer is only made when it has been aetually received l)y the clerk of the crown in chancery, and not when the returning officer has placed it in the express or jio.st- office for transmission to such clerk. It is not essential that under t)ie Ontario Act, R.S.O. cii. 11, sec. 1.1, tliat a notice of the presentation of a petition should l)e served, wiiere such notice is indorsed on the petition. This was a motion to set aside the petition tiled herein on the "'round that it was tiled too late for the reasons set out in the judgment. Widhice Xf'sbitt, for the respondent, for the motion. Wiitsoii, Q.C., for the petitioner, contra. if: OTl'AWA. 66 OSLEU, J.A.- Two objections were made to the proceedintjH : 1. That the petition was presented too late becauHi" not presented, as it is said, within 21 days " after the retui'n lias been made to the clerk of the Crown in Chancery of the member to whose election the petition relates," as reijuired by sec. J) of the Controverted Election Act, none of the conditions arising which permit of a presentation at a later date. 2. That no notice of the presentation of the })etition was served with the copy of the petition as r(!([uired by sec. 15 of the Act, R.S.O. (1897) ch. 11. In support of the first objection it was contended that the return to the clerk of the Crown in Chancery is made within the meaning of sec. 9 when the returning officer v.as actually placed it in the express office or in the post office for the purpose of transmitting it to the clerk : R.S.O. 1897, ch. 9, sec. 185. The inconvenience of such a construction is manifest, as no one has any means of ascertaining when a return has been thus made except by eiujuiry from the returning officer, who is not by law bound to give him, or indeed, anyone else, any information on that subject. The time, moreover, in which he is bound to " make and trans- mit " his returns varies according to the circumstances mentioned in sec. 184 R.S.O. ch. !). Sec. 189 R.S.O. ch. 9 obliges the clerk of the Crown in Chancery on receiving " the return " to give in the next ordinary issue of the Ontario Gazette, " notice of the receipt of the return, the date of such receipt, and the nanu; of the candidate elected." There is no provision whatever which enables any one with assurance of certainty to ascertain the (().), and Hocurity was thenceforward ie(|uire(| to be ' notice of this, omitted that part of the section correspond- ini/\i/ HI, IS'.I'.K Jaitiinri/ .'/,, ISUU. (Special Case.) I'o/f ;■<' L'ltl — ^' Hexidtd ronliinioiisl 1/^' — Meav'twj of. Tlie provision of st'(;. H of the Ontario Voters' List Act, R.S.O. 1S97, oh. 7, that |)ersoiis to lie (lualified to vote at an ehiction for the Lofjis- hitive Assemhly, must have resided continuously in tlie electoral district for tlie period sperritied, does not mean a residence
  • . \n\: that there should be no Li'cak in the I'esidence ; that they should not have acquired a new residence ; atid where the absence is mei'ely temporary, the (pialitication is not aM'ectefl. \Vh(!i'e, therefore, persons resident within an electoral district, and other- wise (lualitied, went to another Province merely to take part in liarvestini^ work there, and with the intention of retiirninjj, which they did, their absence was held to have been of a temporary character, and their (|ualification not thereby affected. In the matter of the revision of the Voters' List of the Township of Seymour, in the County of Northumberland, in the year 1808. This ^va.s a case stated by tlie Junior JudVIN<'IAF. EF.EfTloN. a {MTHoii, to Ih' ' the; I5th day of F(^bruary, 1S!)8. Each of the said persons was duly ((ualitied, and entitled to hav(! his name entered on the Voters' Li.st of the townshij) for the year 1898, as bein<^ entitled to vote at elections to the L(^<^islative Assembly, unless he was dis(pialitied by reason of his absence from the electoral district durini;' the period, and under the circumstances hereinaftei- mentioned. Each of the said persons was absent from the eh^ctoral district and in Manitoba, on the 19th October, and for, at least, a month thereafter, and the circumstances under which they were so absent, were as described in the case of Robert Little, all the cases beino- similar in character, except as hereinafter particularly noted. L A|)p]ication was made to add to the list the name of Robert Little. The said Little was a younij inimarrie.d man, whose parents resided in Seymour, and he resided there with them, and was so residing there on the day on which his application was heard. On the 18th day of August, 1898, he left Seymour for Manitoba, on one of the excursions organized by the railway company, and known TOWNSIIII' (»K SKYMollt. 71 #'■: as II " Kiiiiii hill ton iTrs' KxcurHion," tlic object ol' wliicli wiiH to imlucr i'linii lal)()urfr.s in Oiitiirio to ;,'o to Miiiii- tohii to UHHist ill ;,'iitli('riii;f in tlic liiUAt'st tlirif. Me iii- tciulcd to I't'tuni to Scyiiioiir ultfr tlir liar\fsliii<^ opcra- tioiis ill Maiiitohji were over, and procun-d a railway ticket I'or liis passa^'f to Manitoba at a reduced rate, on tlic con- dition (aiiioii;;st otlitTH) that lu' should work as a rami lalxmrcr while in Manitoba, I'or at least thirty days, and he was entitled to a return ticket at a like reduction rate, on producine- to the railway a<,feiit a certificate l'r')iii his eiiij>loyer in Manitoba, on a I'oriii providc^d by the railway company, that he had so workecl there for that ]>eri()d oi' time. He worked, while in Manitoba, by the month, i.e., he enth November, when he left Manitoba, and returned at once to Seymour. 2. A])])licatiou was made to strike out of the list the name of Arthur Ivev. His case was similar to that of Robert Little, except in tile fact that while in i\lanitoba he worked by tlu^ day, i.e., he eni^aifed from day to day, at a stipulated daily wajje, instead of by the month. 3. Application was made to strike out of the list the name of Norman Fraser. His case was similar to that of Robert Little, except in the fact that his parents do not live in the electoral district, and lu' had no csfuhlislied home there: he was a labourer, who made his home with hia employers while in the electoral district. 4. Application was made to strike out of tlie list the name of John Morrison. His case was similar to that of Robert Little, except in the fact that he was a married man, whose wife continued to reside in the electoral district during' his absence in JVIanitoba. The (juestion in each case was, whether the voter can be said to have been resident in the electoral district con- tinuously from the 19th October. 72 PROVINCIAL ELECTION. N. Ferrar David,soii, for the four voters. Allan M. Dyiaond, for the Attorney -CJ^neral. OsLEii, J. A. — The que.stiou Hubniitted b}' thi.s special case is one whicli I have frequently had to consider in election trials when dealing? witli charoe.s under .section 168 of the Election Act, wliich provides that every person who votes at an election knowinec. 11 of the Election Act, and wliich was first enacted hy 51 Vict. ch. 4, sec. 4, in 1888. r also think the other thi-ee naini's ought to be left on the list. W" must assume that they were rightly ])laced on the li: V in lic tii-st instance, and the only (juestion is whether a similar absence by them rc(juires their names to be removed. 1 think it makes ikj difterence whether their employment in Manitoba wi»s by the day, or l)y the month. One of them, Norman Fi^iser, was a little differently .situated from the other.s. His pai-ents did not reside in the electoral district. He is a labourer, and made his home with his employers in the district, and the learned Judge states that he had no rshihlishcd home there, by which 1 think is meant, that his home changed from time to time with his employers, but that both before and after his absence, it was within this distii<-t, and his absence was temporary, and with the intention to icturn. BlTFTON. (\J.O., Mo.ss, and Listeu. JJ.A., concurre 76 PllOVJXCIAL ELECTION'. NORTH WATERLOO. PRO VIXCIA L ELKCTIOX. Before Burton, C.J.O., Osi.er, Maclexnan, Moss, AND Lister, JJ.A. Bkkmn, Sipfemher 23nd, 18'JS. Toronto, October U,th, 1898. " Jatnmry ;.'4th oik/ .'.'ith, I89U. March I41I1, 189'J. Jacob Shoemaker, Petitioner, V. Hexrv George Lackner, Respondent. I Particulars — Verification of — Appeal — Va(p(enes>i of Particular'* — Jiidij- meiit irithi)) 15 fkii/-* of Smuioii — Tnatiii;/ a JFef fin;/ —Dint i net ion between Bribery and Treat im/ — Sarint/ Clau/ie — Ji.S.O. ch. 9, .vtcs. 159, IGl, 17. '-lb. ch. If sec. 48. In proceedings under the Controverted Elections Act, R.S.O. ch. 11, it is sufficient to attach an affidavit of veriHcation to the particulars filed, without serving an affidavit of verification on the res])orident. It is too late on ap])eal from tlie judgment on aii election petition to object to the insufficiency or vagueness of the particulars. Notwithstanding R.8.0. ch. 11, sec. 48, ])roviding against trial of a j)etition during a session or within 1,") days from the close thereof, when judgment has been reserved after examination of witnesses and hearing and the arguments of counsel, the trial Court may give it and issue their certificate and rejjort at any time whether during or after a session. Wh I'e after a meeting of electors had broken up, an alleged agent of the respondent had treated at the bar of the hotel, whei'e it had lieen held, a mixed multitude com])rised of some who had been at it, and others who had not ; — He/d (Macij;nnan, J. A., dissenting), that this was not treating "a meeting of electors assembled for the ])ui'pose of promoting the election,"' within sec. Kil of tiie Ontai'io Election Act, K.S.O. ch. !). Per Maci.knnan, .I.A.. seeing that seveial persons assembled at the bar waiting for the meeting wes'e treated before the meeting by the hotel- keeper, whom the res|)on(UMit's agent had asked to treat "the boys" before himself leaving to attend a meeting elsewhere, iui(i whom the agent afterwards j)aid, and tiiat several wiio wei'e tieiited after the meeting had been at the meeting, and then in company with the NORTH WATERLOO. 77 respondent went very iiuicli in a hody to another liotel, where they were treated again. Held tliat tliis was a treating of .he meeting witliin the hisL mentioned seetion. Ihld, also, liy the Court of Apjjeal, reversing the decision of tlie trial Judges, that such treating was not " briljery "' within K.S.O. eh. !(, sec. loj). Corrupt treatintr in its nature runs very close to hribci-y on the ])art of the treater, hut the eiroumstances in which a treat can he said to l)e a valuahle considerj, tion within sec. 1. 19 so as to amount to hriliery on the part of the person accepting it, nuist he unusual. Where only two acts of bribeiy were proved, but the pt^i'petialors wei'e both active, and one an important agent of the candidate, neither of whom was called at the trial, and one of the bribes, though only S'i, was paid out of a general election fund, to which the respondent had contributed .iii'ioO, and the I'espontient's majority was (io t>'it of a total vote of about ;)(K)0 : — Il. pp. :i7(), ,S88-(): Kiiif/stoii Caxc, ib. pp. ()25, (i;i5-(J ; South Norfolk (U(.^(',\h. pp. (I()0, ()()9-70; East Kin in ('"xr (1879). ib. at pp. 771-7; West Simnx' Casr (188:^), 1 K.( '. at pp. 14!>-5(); East Middtcsr.r Casr (188.S), ib. at pp. 274-5 ; E(s( Siiacor Case (188;V), ib. at pp. :iO:i, H()8, ;U() ; \[\'lla,al 78 PROVINCIAL ELECTION. Cam (1884), ib. p. .'i83 ; West Hastings Case (1879), H. E.G. p. 589 ; Corrirkfenjtis Case (1880), 8 O'M. & H. 90 : North Middlesex Case (1875), H.E.C. at p. 881 ; North Ontario Cose (1884) 1 E.G. at p. 19; Kingston Case (1874), H.E.C. at p. (j35 : State v. Strauss (1878), 4f) M(l. at p. 299 ; Chitty on the Prei;o<,'atives of the Crown, at p. 71 ; Stroud's Judicial Diet., sab voce " Trial." E. F. B. Johnston, Q.C., R. A. urant, and J. C. Haight, for the (petitionei- ) respondent, referred to West Wellington Case, 1 E.C. 281 ; Rogers on Elections, 17th ed., vol. 2, pp. 299-301: Hn-thier Election Case (1884), 9 S.C.R. 102: Yoiighal Case (18(59), 1 O'M. & H. 291; The Prescott Case (1884), 1 E.C. 88, 92; West Simcoe Case (1888), ib. pp. 128, 149-50, 15G, 178; North Ontario Case (1884), ib. pp. 1, 18; East Simcoe Case (1884), ib. pp. 884, 841 : North Middlesex Case (1870) H.E.C. at p. 886: West Hastings Case (1879) ib. at p. 540; Taunton Case (1874), 2 O'M. k H. at p. 74. OsLER, J. A. : — This is an appeal by the respoi. lent in the election petition from the judgment of the trial Judges by which his election and return as member for the electoral district of North Waterloo were avoided and set aside. The trial took place and all the evidence was given before the said Judges at the town of Berlin on Thursday, September 22nd, 1898. Two charges of bribery were then lield to have been proved, and judgment was reserved in respect of two other charges of corrupt practices, which, by consent f)f all parties, was to be deliveivd at the city of Toronto, a place not within the electcH'al district, on OcTober 14th, 1898. At tiiat time and place judgment was accordingly delivered, finding that such other charges were also proved, and determining that the election and return were void and couhl not be supported under the saving provisions of sec. 172 of the Election Act, R.S.O.ch. 9. a a o XOHTH WATERLOO. 7}) Tlie re.spondent li!iviM<4 loilu-ed lliis appeal IVoiii the (leci.sinn of the trial Jml^^^'s, the certiHcate aiul iv])Oi-t of their decision was made to the Court of A])peal as i-e(|uired by sec. H of the Election Act of 1.S08, U2 Vict. ch. 4. It bears date October 22Md, 1S98. The «• held avoided on the other tkvo charges of bribery ainno. We caiiiiot gi\'e etl'ect to the lii'st ground of appeal, hu'ticulars were filed, with an atHdavit of verification, and .so PROVINCIAL P:LECTI()\. were also served, but no nflidiivit was .scrNrd. Tlie purly is not re(juired hy Rule or statutt; to imike two jitfier elect l)ein<^ entitled to take his seat, and having in fact done so, liad not consented to the trial being so held. But by sec. 3 of the Election Act of 1898, 02 Vict. ch. 4, passed during the session in (juestion, sec. 48 was amended by adding thereto the following proviso: "Pro- vided that if a .session of the Legislature shall have commenced and shall have been adjourned (which was the case here) then the trial may be proceeded with during the period of adjournment, after the expiration of fifteen days from the day of adjourinnent, . . . and for the purposes of this section the period of adjournment shall not be reckoned as part of a session." Then it was declared that the section (i.e., sec. 3 — ^in elfecft the proviso), should remain in force only until the end of the present session and should aj)ply to pending petitions. This clause was passed, as every one knows, for the express purpose of enabling the numerous eUiction petitions which were then pending to be tried during the autumn and to suspend the operation of sec. 48 during the adjournment of the session. The trial of this petition was accordingly procet'ded with on September 22nd, being a day aftur tlie expiration of fifteen days from the day of the adjournment, and all the proceedings which took place on that day were, and are, valid and unimpeachable. The 11 — vol- II. E.C. 82 IMJOVIN'CIAL KLKCTION. (liHic-ulty wliicli now pi-cHcnts itscll' uriHcH IVoiii tlic fiction which wiiH ,suhH('(|U -«, f/. i^ 1.0 I.I 11.25 ^m \m '- 13^ 1 2.2 2.0 1.8 U 11.6 v^ ^^> c>: 4> ^S •% ^l 0> / >(;^ Photographic Sdences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. US90 (716) 872-4503 A^ .^\^ s ^^ o 9> V ^ <1? 6^ '^^ :<^ kf .^ O 84 PROVINCIAL ELECTIOX. of a Ht'Hsion, or — as in tlio present instance, by force of sec. 3 of the Act of 185)8, durintj the session — nothinjj remuins but to j^ive the judjjinent of tlie Court, and to make the certificate and rc^jMjrt. The object or purpose of sec. 48 inij^ht well be held to Vje exliausted, there beinj^ no reason why, urdess the word " trial " necessarily includes the final decision and the making of the certificate and report within the nieaninj^ of the section, these should not be given an:'l"r«'sliiiK'nt or pro- vision to and I'or " a nunihcr of jx'rsons named, " l)eing voters in the electoral district, in or'J. iiid the some- what similar section in the present English Act of IHH.S, 40 & 47 Vict. ch. 51, s. 1, is noticeable. Corrupt treating;, no doubt, in its nature runs very close to bril)ery on the part of the treater, and may even, as has Ix-en said, run into it — at all events, where it is corruptly accepted by the voter — but the circumstances in which a treat can be said to be a ndiuihlc consideration within sec. 15!). so as to amount to bribery on the part of the person accepting; it, , must be unusual: The liodniin Case (1H()!)), I O'.M. Ac H. at p. 124: The ('riberv a corrupt contract brtween the voter and the candiroliiliition of sec. 4H ol' ilir Act, R.S.O. ch. 11. Iti my opinion there are three <,'roun* the lioMint; of the trial, and I think the pe of the Act. The reason for the restriction aftbr«i;^ a cojjent arjjn- nient for this conclusion. That appears to he to enal)le the nieniher-elect, who must he taken to have heeii duly elected, until the contrarv is j'stahlished, to attend to his (hities durinj^ the session, and also to prepare for and to attend th(> trial. In a popular .sense, the trial is over when all the evidenct! has been «;iven, any sec. liO it shall take place in the electoral district unless, etc., and by sec. 44 it may he adjourned to any oUier place within the electoral district ; but there is nothini; in the Act re(|uirin;; the jud<^ment to Im» ;jiv»'n at the cotxclu.sion of the ar;;ument, or at any particular time or place. Indeed, I do not finiiouiic(> a i'nniuil jui|^in«>nt in the ]ir«>s(>ii(*f of tho |>Hi'tit>M, liiit i(]Miti (lit> whole I tliiiik that act in not a |iai't oi' th«' trial within thf niranin;; of the section. TIk' s'.'coikI ;;rouny his consent from takini; the ohjection if it were otherwise jien to him. A third {ground dejtends on the lan;,nia}xe ot sec. H amending sec. -iH, which declares that for the purposes of tlu^ aineiid- ini; section, the period of adjoiu'niaciit nIiouM not Im reckoned as part of a .session. The purposes i f the .section ar<^ the trial of petition.s, and so althuwi^li for all other purpo.ses the session continued until the 12th of Octoher, yet for tlu' purpo.se of trials the time which e|..pse»| between the 24th of Auj^ust ami the 1 2th of October was no part of the session. For those purp«.;s.'s the .session ended on the (hiy of the adjournment, and the fifteen enalty. They applied at the trial for relief against the |)enaltie.s. The ('ourt, giving ciedit to the evidence of the defendants, held that there had been no intentional violation of the law ; that the violation did not involve moral culpability, and had not afl'ected the result of the election ; that the trial, being a new and independent ])r<)ceeding on whicli, for the first time, the defendants had an oppoitunity of being heard, the Court, with- out refei'eiice to the findings at the trial and to the decision of the Court of Api>eal on that matter, was at liberty to appl}' sec. 177 of the Elec- tion Act and to free the defendants from the disabilities imposed by that section, and under sec. .'57, sub-sec. .'i, of the Judicature Act, to relieve them from the penalties, which was accordingly done. EAST ELGIN. PROVIXCIA L ELECTIOX. Before Osler, J.A., and MacMahon, J. St. Thomas, Xoremher ..'H, ^.'9, .ill, and Decembtr J, 1S98. Toronto, IhcmUir ^7, 1S9S. Before the Court of Appeal. Present: — Burton, C.J.O., Bovn, C, Maci.knsan, Moss, and LiSTKR, JJ.A. Toronto, Sej/fcmhcr IS, 1S9<), and Xoremher I4, 1S99. Matthew Eastox, Pctitionci', v. Charles A. Brower, Respondent. Corrupf Practlcvx — Vofhiy V'Uhout Rii/ht — Kiioirfed;ie — Bribery — Inforence from En'ddice — /'roridiiif/ Momy for lietfiii;/ — Loan — Atjcnry — Proof of — Part)/ As>e |>roveart from that : nor does the fact that he has taken the oath, even if it )>e shewn in |K)int of law to l)e untrue, necessarily prove that the offence has been comniitteil. JIu/(h'mnii(l Case (18S8), I Elee. Cas. 5'29, distinguished. 2. J/t/(l, attirming the decision of the trialJudges, that the bribery by L. of two persons to abstain from voting against the resjwndent was established by the evidence, although it was not shewn that any- thing was said to them about voting; L. having paid them, foi' ti'iHing services which he engaged them to |»erform u|K>n election tlay, sums considerably in excess of the value of such services, knowing them to be voters and to belong to the opjK)site |Mjlitical jNirty. 3. As to the agency of L., it a|>|)eared that the respondent was brought into the field as the candidate of his juuty, having been nominated at a convention of the party association for the electoral district ; L. was l^ot a delegate to, nor was he present at, the convention ; and he was not u]K)n the evidence connected with the association or its othcers ; he was not brought into touch with the candidate, nor any proved agent of his, either as regards his or their knowledge of the fa(;t that he was working or proposing to work on behalf oil the candidate, or as regards anj' actual authority conferred upon him to do so. But he was present at three meetings of electors when the voters' list was gone over ; he acted as chairman of a public meeting called in the respondent's interest ; he canvassed some voters ; and, fiom his ante- cedents, the res|)ondent hoped or believed or exj)ected that he would be an active supjxirter : — //('/f/, athrming the decision of the trial Judges, Boyd, C, di.ssenting, that L. was not an agent of the res|K)ndent. Haldiinantl Case (1880), 1 Elec. Cas. oT'i, distinguished. 4. Three persons, T. l)eing one of them, each lent $10 to R. L. , knowing that the monevs so lent were intended to be used by him, as he then told them, in betting on the result of the election. Any bet or bets which lie made were to be his own bets, not theirs, and he was to return the money in a cou[)le of days. He did not succeed in getting any one to bet with him, and he returned the money to each on the following day : — Held, affirming the decision of the trial Judges, that this was ]>roviding money to be used by another in betting ui)on the election, and was a corrupt practice within the meaning of sec. 1H4 (2) of the Election Act. 5. As to the agency of T., it appeared that he was one of the local vice- presidents of the party association above referred to ; he liad been present at two meetings of local jwirty men calling themselves a "Conservative Club," who were interesting themselves in the election, and hail contributed towards the cost of hiring the club-room ; at these meetings be had gone over the voters' list with others, which Wits the only work done ; at a meeting held by the res|K)n(lent in the 1)lace where T. lived, he had presided, having been ele<;ted chairman »y the audience, and he made a s|)ee(!h intrtMlucing and commending the respondent ; before the meeting he had met the resjiondent in the street, had shaken hands with him, and asked him how things wei'e going. The res|K>ndentdid not know that T. was local vice-piesideiit, and had I never heard of the "Conservative Club." T. was not a delegate to the nomiiuiting convention nor present thereat. The tissociation, as such, was not diarged with any definite duty in con- nection with the election except the selection of a candidate: — //rW, reversing the decision of tlie trial Judges, Bikton, C.J. O., and Maclen.na.n, J. a., dissenting, that T. was an agent of the respondent. w 102 I'UUVIXCIAL ELECTION. <>. The total vote poUtHl was over 4,i')00, and tin; majority for tlie res|if)n(l«;iit was "iiJ. The ti'ial .ludj^t.'s had reported one jterson j^iiilty of an act of nndue intlnen(!e, three of liein<^ eoneorned. in acts of luiliery, and T. and two otheis of providinj^ money for hettiii}^ : — //e/ It may also be a (piestion whether he could, within the meanini; of the latter part of the second jn-oviso of the alxjve section, having re<;ard to sec. 11 of the Act, be said to have resided continuously within the electoral district fron» eitlua* of the; alwve dates up to the time of tenderinj; his vote, owin<; to the fact that he had occasion- ally visit(!d his wife for a few days in another electoral district, and had been absent on another vi.sit lo Wisconsin for a fortnijjht, and also for other brief periods been al)sent on business in a neijjhbourin*; district, always returnin*; to his liome and residence at his father's house. The vote, however, not having been attacked by either party to the fotition, it is not necessaiy, in the view I have always taken of the proper meaning of sec. 1()8, to decide either of these questions. The voter was on the voters' list in fact, and his right to be there appears to have been the subject of an appeal to the County Judge, on the ground, as it was .said, though, I think, not legally proved, of his non-age. The objection as to his non-residence in the Province for the reijuisite time, nine months or twelve as the case might be, was open, though it may not have been taken. At all events, the voter knew his name was on the list, and that it had Ix'en maintained there by the County Judge, notwith- stanM). The ]an<;uaj;e they have used, especially in view of the fact that the section im})oses a penalty upon the voter, indicates that wliat is to be pi-oved, in order to establish the commission o\' the offence mentioned in the section, is the existence of the hi(il;o or not, rcmarkin*; (to him.self) that it miijht interfere witli his vote. Li the eveninj^ of the sanie day, hv'in^r the same occasion as that spoken of hy the father, Luton came with Nelson IVnhale to his father's house and attain asked witness if he wanted to work for him next day. Witness said he would, but wanted J?5. Luton then .said he wanted him to come and look after his house, as his family would be away. Nothing was said about })ayment for his services, nor about the election, nor about unloading;- corn. Witness said he would work, but wanted !?o: did not want it for his work, but did not say so. A dollar and board would be about the usual charj^-e for such work as he did, chores about the house, lookini; after the horses, etc. It was " a borrow : " nothin<»; .said about returninj:^ any of it. Witness drove to Luton's place with him that ni<>;ht and m KAMT VAMIS. 109 rt'turncd the t'ollowin;,' cvniiii^r When a( Luton's he whs five or six iiiili'S distant I'roni liis own pollini; jilacr. He (lid not vote. Alon;j in tlif suninici- In- icturnt'd .*:^4 to Luton, k('c])in;; ^1 J'or his day's work. liUton had not asked lor it. Nel.sdii I'enhalf said Luton told vounir Kollock that he wante(l sonn^ one to keep house I'or )iini or take care of hiH house, or to ijet sonie hel|). for the next day, and Kolloek said he wanted .some money. Saw money <;iven to him. Nothinij was .said ahout votiiii; on the election day. For the defence Luton was caHed. As to Follock senior, he denied the conversation first spoken of hy him, th(3U^h he a(hnitted that ho did .speak to him (1 think in Boujjhner's shop) on the day hefore the election about working; for him, and asked if he knew whether HIack had dispo.sed of his cattle or not. H«^ said nothing; one way or the other to him about voting. The visit to Follock's house in the eveninj^ is not denied. He spoke to him there abcut goin*; to look at and value the cattle. That was what Follock wanted the $5 for. He did not try to beat him down. He was not to buy the cattle. The eharije was a fair one. He had not suijijested to Follock to tro on any particular day. It was his own idea to j(o the next day. Had never bought cattle from HIack, nor employed Follock on such business before. As to Follock junior, he had asked the father what the son was doing, and had met the latter in the street soon after near Boughner's store. Asked him if he could help him to-morrow, and he said he could as far as he knew. Nothing then said as to terms. In the evening he saw him at the father's house, where he paid him what he asked, viz., '^6. This would be too much for .such work as he wanted him for — just woman's work about the house. Si. 50 would be a fair day's wage. Did not expect he would have more. Witness does not say that the difi'er- ence between this and the S5 was a loan or was to be 110 I'ROVIN'CIAL Ef.ECTION. 'i retnrnt'cl. $J150 was returned, he thinks, hei'ore it was known oi* before lie knew that there would be any ti'ouble about the election. He does not say he had askeliged to say that the impression I formed from it at the trial has not been removed. I think that the only inference to be drawn from it is that the money paid to eacli of the Follocks was so paid to induce them to refrain from voting against the respondent. The fact thrt nothing was said al)out voting is not enough to overcome' the inference to which the other facts, to njy mind, very plainly point. Here were two voters known by Luton to be on the oppo.site side to that in which he was interested, and he sees and follows them up, on the day before the election. Having approached theiri once, and in a wa\' which did not indicate any pressing necessity for employ- in<; them immediatelv, he goes after them to their house at an unusual hour for doing business. He sends Follock senior on an errand the following dav, fvom which I am convinced from all that occurred, looking at Black's evidence and his own, he had no reason to expect any result, and he pays him therefor a sum wholly di.sproportioned to anything like a fair remuneration for the service he was asked to perfoi-m. There was no reason why Follock senior should not have voted if there had not been a very good inider- standing, in whatever way it may have been arrived at, that he should not do so. I have ilot referred in tlie summary of the evidence given above to the circumstance Oi Luton having procured Follock to make a declaration exonerating him in effect from any corrupt pi'actic(i in connection with the matter, but, so far as it has any weight at all, it seems to reflect unfavourably upon Luton as an attempt to make evidence in his own favour. Nor have I alluded to tlie details of a conversation in Boughner's store, spoken of by Follock senior, in reference to voting and to Randal Chin's vote. Luton is entitled to the benefit of EAST EUilS. Ill having denied this, and I prefer to leave the facts which are practically admitted by him and the two Fol locks to ,"peak for themselves. As to Follock junior, tlie case is, if possible, stionger. There is first the talk alx)ut wanting him to unload a ear of corn, which was not referred to ot the subsequent interview in the evening. If tliere was any car of corn to be unloaded, it was evidently not a matter for which all other business the next dav had to be lai more than any such service as performed was worth — admittedly not for that service, ])ut apparently merely because he asked for it. He puts it on the ground that it " was a borrow," as he termed it, but Luton does not say so, nor did the witness ask it as a loan, and he returiied $4 — ^or, as Luton says, S^.oO — though there had been no agreement to do so nor liad Luton asked for it. Each of the.se ?ases throws light upon the other, considering the relationship of the parties and the cirejim- stances under which Luton employed them and his knowledge of tlieir politics, as evidencing the interest of tlie latter in malcing the arrangements he did with them. I am of opinion, therefore, that charges 2() atid 27, so far as the corrupt practice alleged in each is concerned, are proved. The next (juestion is as to Luton's agency. Mr. E. A. Miller, who was the respondents financial agent, said there had been a " Conservative Association " in the East Riding, which, however, seems to have l)een of a very unsubstantial and indefinite description. '{'here was nothing in writing to witness to itft existence, no w 112 1'ROVINCIAL ELECTION. roll of ineinbers, and no membership fee. It was supposed to meet once a year, but its last meetint^ was in December, 189(j. There was a president, whose name, I think, was not of sufficient importance to be mentioned ; the witness was the secretary-treasurer ; and in each nuinicipality a vice- president or chairman. This set of officers does not appear to have been retrularly kept up, and each nnniicipality, so far as the witness knew, looked after its own or^^anization. At the nominating; convention, 27th October, I8!)7, witness believed that there were several delegates from each polling subdivision in a nnniicipality, but there appears to have been no scrutiny of their ci'edentials, except perhaps in live or six instances. The meeting was called by notice in a newspaper, and there were perhaps 800 persons present of both sides of politics^ but not more than eighty-seven delegates. When the nomination was ten- dered to the candidate, he made a short speech to those present, in which he is reported to have said that, with their help, he was confident of victory. I have, I must say, no confidence that we have anything like an accurate report of what was said on the occasion. There was no evidence that the association spoken of by the witness had taken any part in the work of the election. For any purpose of that kind it was not in existence. W. H. Elliott was chairman or local vice-president in Yarmouth township. Had received notice from Miller to notify the chairmen of the polling subdivisions to send delegates to the nominating convention. Some of those to whom he sent notice were delegates at the convention ; among others, A. A. Luton and Wm. Padden. W. F. Luton was not one of these. There was no organization of any kind in this township that the witness knew of. There were two or three informal voluntary gatherings of a few persons, recognized as Conservatives, at private houses — one at A. A. Luton's, one at Wm. Padden's, and another at W. F. Luton's. The latter, however, seems to have been EAST ELOIX. 113 quite as much oi a social as of a political character. At these meetini^s a voters' list was jjone over to see who had a ri<^ht to vote, etc. The witne.ss did not know of any work which W. F. Luton had done during the election. George Westlake was a voter in the same polling (livision as W. F. Luton. He did not remember seeing him at Padden's oi- A. Luton's. The election was talked of and a voters' list gone over, but no duties were assigned to any one or arrangement made for getting out the vote. He also knew n(jthing of W. F. Luton doing any worl; at the election. George Cline was at the meeting at W, F. Luton's house. Thought it was the night before the nouiination. Did not remember of Luton taking any part in it or of beinir at the table where the voters' list was, or of his having done any work at the election. I'he pei'sons present were the most active Conservatives in the neigh- bourhood. There was no assigning of work to be done by any particular person, thoiigh witness undertook " of his own notion " to go and see one or two voters. Daniel Macintyre, the defeated candidate, said he had held a public meeting at a schoolhouse in the village of Middleton, at which perhaps one hundred persons were present. W. F. Luton was in the audience, near tlie door. When the meeting was over, he called out that the respondent would hold a public meeting there on the following Saturday, and he (Luton) wanted them all to come. Brower, the respondent, said that he ainiounced at the meeting held after the nomination that he intended to make' a personal canvass, and this is what he tried to accomplish luitil he was taken ill. He had no organiza- tion of his own, and no reports were made to hiui. Met Luton only once during the election. Had no conver.sation with or conuuiuiication from him on the subject, and was not aware of any work he did or that he was working for 15 — VOL. Ill, E.G. 114 I'HOVINCIAF. KLfXTION. liiiii ; hopetl, or oxpected, or believed — I think lie UHcd all three expre.ssioiiH — that he would be an active .suppoi'ter. Had had some triflinfij difference with him, and if he did not see tit to support him, would not ask him to do so. In his examination for discovery the respondent said that at foi-iiier elections he had always considered Luton an active supporter of his ; no one there more so. Luton himself, called by the petitioner, said he had been present at the meetings at his cousin Arthur Luton's, Wm. Padden's, and at his own house. Some one had a voters' list on each occasion. It was not his, and he had not had one in his possession. He took no part in going over it. Others were doing so. He had not, to his I'ecoUection, contributed any information on the subject, and no work \Vas assigned to him by any one. He had not been a delegate to nor present at the nominating convention. He was present during part of the time at the meeting afterwards held at which Brower was tendered the nomination. He went there as a spectator merely, and was not there while the candidate was speak- ing. He denied Macintyre's statement that he had called out to those present at his meeting to come to the meeting afterwards to be held by Brower. At one public meeting held in Brower's interest he was present, and was called upon to act, and did act, as chairman in the absence of the person who was to have done so. Brower was not there. He drove two voters up to the poll by way of giving them a ride there, but had not gone out for the purpose of driving voters. He had not canvassed their votes. He did no other election work on that day. I think it is proved that he canvassed four voters in fact, by asking for their votes or suggesting that they should vote for Brower. These, however, were isolated occasional acts, not done as part of a general system of canvassing, or because Luton had been asked by any one to see the voters in question. ^ EAST EL«J1N. 115 le What i.s relied upon, therefore, a« OHtabli.sliing his agency seems to be : — 1. That lie was present at thi'ei nieetintijs of electors when the voters' list, at all events, was gone over, even it no other work was done. 2. That he acted as chairman of a public meeting called in Brower's interest. 3. That he did in fact canvass some voters ; and 4. That from his antecedents, the ivspondent hoped or believed or expected that he would ha an active supporter. I do not think it necessary to go over the cases in which the principles of what constitutes election agency have been discussed, and, still less, cases in which this or that particular circumstance or set of circumstances have been held sufficient to establish it. " It lias never yet been distinctly and precisely defined what degree of evidence is recjuired to establish sucli a relation between the sitting member and the person guilty of corruption, as should constitute agency. . . No one yet has been able to go further than to say, as to some cases, enough has been established ; as to other, enough has not been established to vacate the seat : " per Blackburn, J., Bridgevxiter Case (1869), 1 O'M. & H. at p. 115. What the decisions do establisli, as I read them, is that there must be circumstances proved from which the authority of the person acting is shewn or may be implied — circumstances which shew knowledge on the part of the candidate or of some authorized agent of his — knowledge which he has, or would have, unless he closed his eyes to it — of the part which the person whose agency is sought to be established is ttikiiHj in the election. I refer, without (juoting at large, to the chapter on agency in the last edition (the 17th) of Rogers on Elec- tions, pp. 800-870, and to the judgment of Ritchie, C.J., hi the HiddumnHl Case (No. 2) (1890), 1 Elec. Cas. 572. Under the circumstances of this case, it appears to me . r-f" ' no PR< ) V F N'C I A L E LECTION. r tliat the t'actH I have referred to, whether taken Hin<(ly or togctlier, are iiiHutficnent to establish Luton's ai^ency. He certainly was not one of those persons wIkj could be said, by r(;ason of any jrcneral observations of the respondent at the nieetinj^ at which lie accepted the nomination, to have been invited to su[)port and to work for him. He is not brou(rht into touch with the candidate or any person or per.sons prove(l to have been his a;s at wliich Luton was present. He is not, indeed, proved to have taken part in anything wliich was done at these meetin(jj.s or to have been inti'usted thereat with any work to be done in furtherance of the election. Had the persons who were present at these meetings been a connnittee intrusted by tlie candidate witli the work of the election, or meeting with his knowledge for the purposes of the election, something might have been said in favour of holding that all those who attended as members of it were his agents, though I am myself inclined to doubt whether mere proof of membership alone, without more, is sufficient for that purpo.se: M^cstminster Case (18()9), 1 O'M. & H. at p. 92; Windmr Cam (1874), 2 O'M. & H. at p. 89. But it is, in my opinion, wrong to speak of the casual (as they may be called) gatherings at private houses as meetings of a comhiittee. They were not composed of any definite number of persons, meeting at any known or recognized conmiittee-room, but were a fluctuating body of people gathering first at one farmer's house and then at another's, apparently without any preconcerted arrangement. So far as they can be regarded as having the character of a committee at all, they were a self -constituted one, of whose existence the candidate was undoubtedly ignorant, and EAST EL(jll\. 117 they were not, tiitlier as a body or individmilly, merely by reason of their so meeting together, his aijents. As regards Luton's acting as chairman at a public meeting called in the respondent's interest, it is no more than any other respectable friend of his might have been requested by those present to do. It seems to me a circumstance of no weight. He was not appointed because he was an agent, and the appointment did not make hint such. As to canvassing : in describing what was done, I have sufficiently stated the grounds on which I think it cannot affect the candidate. The acts done in this direction were not only not authorized, but were isolated and not part of a general system of canvassing which might be inferred to have come to the knowledge of the candidate or some authorized agent of his. I refer to the W'iga7i Case (1 88 1 ), 4 O'M. & H. at p. 13, per Grove, J. The Htddimand Cane (No. 2), already cited, was relied upon by the petitioner. It is perhaps enough to say of it that the present case does not come up to it upon the facts proved. It really, however, establishes nothing new, and proceeds indeed, as I read it, simply upon the pi'inciple, when in doubt, especially as to the propriety of a finding of fact — affirm. I hold, then, that Luton was merely a volunteer, and that charges 2() and 27 fail as to proof of agency, and must be dismissed. The only charge remaining is No. 39, viz., that on or about the election day, John Ferguson, Alexau'lcr Taylor, and Albert B. Day, agents of the respondent, did advance a sum of money to Rudolph Long, sailor, all of Port Stanley, to be used by him in betting or wagering upon the result of the election or upon an event or contingency relating thereto. The petitioner's case is that this is a coiTupt practice within sec. 164, sub-sec. (2), of the Election Act. rr lis I'HOVIXCIAL ELECTION. Of this Hcftion the first Hul)-Hoction enacts tluit ccet'if ra iididdfr who inxihtH a hrf or wager upon the result of the ek'ctioji, otc, sliall bo guilty of a corrupt practice. Sub-section 2 : " Every caiulidate or other person who pntrulcs nioiK'i/ to he used ])y another in betting or wagering upon the result of an election to the Legislative A.sseinbly, or on any event or contingency relating to the election, shall be guilty of a corrupt practice." Sub-section 3 : " Every person wlio for fh<- purpose of i iijfii.encing on election ntakes a bet or wager on the result tliereof, in tlie electoral district or any part thereof, or on any event or contingency relating thereto, shall be guilty of a corrupt practice." The section, tlierefore, provides for tliree cases : 1st, that of betting by the candidate liiinself, which is declared without ((ualification to be a corrupt practice ; 2nd, in su))- sec. (8), betting by any one for the purpose of influencing the election — in other words, bribery by means of betting ; and 3rd, in sub-sec. (2), 'providing money to be aneil ht/ iiiiotlter in betting or wagering upon the result of an election, which is also declared to be a corrupt practice. I find as a fact that, at Rudolph Long's recjuest, John Ferguson, Alexander Taylor, and Albert B. Day, did, each of them on the same occasion, lend to him the sum of SlO, and that they knew the moneys so lent were intended to be used by him, as he then told them, in betting on the result of the election. Any bet or bets which he made were to be his own bets, not theirs ; and he was to return the money thus procured from them in the course of a couple of days. In fact, he did not succeed in getting any one to bet with him, and he returned the money to each of them on the following day. It may be added that Long only borrowed from them because it happened at the moment to be too late in the day for him to get his own money out of the post-office, where it appeared to have been deposited. EAST EL(JI\. 11!) It appeai-H to me to he very ditficult to Hay that the traiiHaction which I have thus (k'sciibcd and found to havo taken phice is not a conu[)t practice within tlie meaning of siib-sec. (2). The word used there is of large signification — provide— which would cover the case of giving or h'nding money. Th«;re is no corresponding enactment in the English or Dominion Acts, so far as I can ascertain. Mr. Nesbitt urged that it sliould have been proved that the money lent had been actually used in betting ; or else that the corrupt practice intended was the lending of money to be used in betting for the lenders. I do not think this is what the sub-section means. Its language is quite plain. It strikes at an act or practice which, if not forbidden, would be very likely to be resorted to as an easy method of procuring money to be used for the purpose of bribery. Except in the case of the candi- date himself, it is not forbidden simply to make a bet upon the result of the election. But, when it is made for the purpose of " influencing the election," it becomes a corrupt practice and criminal, by whomsoever it is done. One who employs his own money, however acquired, in betting, maj'^ or may not, according to circumstances, be committing a corrupt practice ; but one who has lent him the money wiierewith to do so has, at all events, provided him with means, or a fund, which, without the possibility of any control by the lender, he may mis-employ. If we are to look for the reason of the enactment, this seems to lie on the surface ; but its language, as I have said, is plain, and on the facts I must hold the case within it. It is not necessary to prove that a bet, corrupt or other- wise, was actually made by the borrower. The corrupt act is proved as soon as it is shewn that the money has passed beyond the control of the lender, and has thus been placed in the borrower's power to use it for an improper purpose. The corrupt practice charged against Ferguson, Day, 120 I'UOVINCIAL ELFXTION. and Taylor is thercifore proved ; hut as to Day and ForgUHon th(!re is no evideneo whatever of agency. As to Taylor, the evidence is that he was a vice- president or cliainnan of th(.> count}' organization ; that lu; had heen present at two meetings of ( /ons(!j"vatives in Port •Stanley, calling themselves a " Conservative (Jluh," who were interesting thenjselves in the election — once at a room which they had hired, and once in Day's shop, whore they had assinnbled hecause the room was not r«nidy for them. Taylor had afterwards contributed towards the cost of hiring the room. At these meetings nothing else was done but to go over the votei.s' list. No work was assigniMl to any one, nor arrangements made for doing anything in connection with the election. Taylor had gone over the lists with the others present, or some of them, and he had acted as chairman of Brower's public meeting in Port Stanley. He had done no other work in connection with the election, either in canvassing votes or otherwise. He was not a delegate to the nominating convention, or present thereat, or at the meeting at which the nomination was tendered to Brower. He met Browt.'r once only during tiie election, on the evening of the public meeting, and had shaken hands with him, and asked him how he thought the election was going, but otherwise had not spoken to him on the subject of the election. Brower deposed that ^^^ did not know that Taylor was vice- president or local chairman of the county organization, and had never heard of the existence of the " Conservative Club " until the trial. I have not been free from some doubt and anxiety as to the way in which this evidence as to Taylor's agenc}' ought to be dealt with. On the one hand, we should be careful not to decide anything which may tend to weaken the principle on which the doctrine of election agency depends, and on the other, not to infer agency so as to avoid an honest election, which I think this election was. EAST KLtilN. 121 where the evitkuice docs not, I may say, irresistihly r<'((uin' Huch' an inference to be (h"u\vn. It is not iinj)i'ol)ul)lt' that other Ju : X4 M 124 PROVINCIAL ELECTION, not .simply for the sfilection of the candidato, it could bo r{! that the association liad taken any part in the work of the election, and for any purpose of that kind it was not in existence. I should have come to the same conclu.sion. but I think, if I differed, the rule laid down both here and in the Supreme Court should be adhered to, that we should decline to interfere with their decision unless manifestly erroneous. There is this broad distinction between the Haldimand Case, 1 Elec. Cas. 572, and this, that in the former the association actively interfered in the promotion of the election, and the trial Judge so found, and, although some of the Judges in the Supreme Court doubted as to the sufficiency of the evidence of agency, they declined to interfere with the Judge's finding; in the present case, on the contrary, the Judges find as a fact that the associa- tion's duties ended in the selection of a candidate, and I for one am not prepared to overrule them iipon that (piestion of fact. The association's participation in the promotion of the candidate's election being eliminated, the question of agency has to be decided on the ordinary rules afiecting election cases, and, as I luiderstand them, there must be either express authority from the candidate himself or some authorized agent, or at least knowledge on the part of the candidate of the part wdiich the person acting is taking in the election, or there must be circumstances proved from which the authority of such person may be implied. It is not pretended that there was any express authority, and the circumstances relied on from which it is sought to EAST ELGIN. 125 imply ajjency on Luton's part, as i'ound by the learned Judges, are: 1. That he was present at tliree meetings of electors when the voters' list was gone over, even if no other work was done. 2. That he acted as chairman of a public meeting called in Brower's interest. 3. That he canvas.sed some voters. 4. That from his antecedents the candidate hoped or believed or expected that he woukl be an active supporter. I think it would be to take an exaggerated view of the facts to treat these meetings at the private houses of some of the electors as connnittee meetings, in the ordinary sense of the term, authorized or intrusted by the candidate with the work of the election, but the tinding of the 1' arned Judges, fully borne out by the evidence, that he was not shewn to have taken any part in anything done at those meetings, or been intrusted with any work to be done in the promotion of the election, repels any such implications. But I agree with the findings of the learned Judires that such meetings were not of the character of connnittee meetings, and the people so congregated were not, either as a body or individually, the agents of the candidate. Luton was known to be a Conservative, and as a voter was perfectly entitled to take the chair at a public meeting and to canvass voters, even though he had done so to a much larger extent than he is shewn to have done, without becoming an agent of the candidate. I think he was a volunteer, (juite entitled to take a nnich more active part than hf^ is shewn to have done without exposing the candi- date to any risk of his being liable for acts done by him as his agent. As to Taylor, whenever it is found that the function of the association was conhned to the selection of a candidate, the fact of his being a vice-president or chairman ceases, 126 PROVINCIAL ELECTION. in my mind, to be of any importance ; he was not a (lelejjate, nor wa.s he present at the convention. He was a member of a chib organized for the purpose of aiding the candidate, but a club of which the candidate had no knowledge. I I'ntirely agree with the observation of a learned Judge, that the evidence of agency ought to be very strong, clear, and conclusive before a Judge allows himself to fix a candidate with such a responsibility for corrupt practices. .i * The acts of both these persons are acts which any ardent supporter of the candidate might well have done as a voter without exposing the candidate to the risk of being made responsible for his acts as an agent, and I am not prepared to reverse the conclusion at winch the Judges have arrived. I think, therefore, the appeal should be dismissed. I may add that I agree with the other members of the Court tliat the respondent is not, under the circumstances, entitled to the benefit of the saving clause. Boyd, C. :— The evidence shews that there is an organization of the Conservative party in East Elgin to promote the success of the party politically in the Province and in the Dominion — one and the same organization for both pur- poses. Usually there is an annual meeting held by the members ft which officers are elected : a president, a vice- . president, and a secretary-treasurer for the whole riding, and vice-presidents for each nmnicipality, also known as " chairmen of districts." This association becomes active when an election is impending, and its chief function is to bring together a convention of delegates from eacli polling sub-division. This convention is summoned upon call of the president and secretary-treasurer by means of public advertisement through the newspapers. There is nlso a EAST ELGIN. 127 tMjininunication sent to the central chairman for the town- sliip — i.e., the vice-president of the district — tluit he sluill notify the cliainnan of each pollinij subdivision askinjij tliat delegates be sent to the convention. Kach polling subdivision is entitled to send three deleirates to the con- vention, and the chief function of the convention when assembled is to clioose a candidate to contest the riding in the interests of the Conservative party. That course was puivsued in the Pro\incial election of 1898. The convention met in the Town Hall, Aylnier, on the 27th October, 1897, pursuant to advertisement, and the delegates then assembled unanimously chose Mr. Brower, the respondent, to be the candidate of the part}'. The meeting, called for one o'clock, was gradually enlarged during the afternoon into a further meeting where some 300 or 400 were present, but of these it is said by Mi-. Miller (Brower's financial agent), that the delegates all told would be about 87 in number. Mr. Brower says that he came there with no intention of running, but when the convention was unanimous he said he would accept the call. He made the usual speech of acceptance, thanking the meeting and hoping that he would have their support. The active work of the campaign began about the 1st February, 1898 — a month before the day of election, which was the 1st March. Mr. Brower came on the field and began a personal canvass for a short time, then he was taken ill, confined to the house for two weeks, and was out again a little before the voting. He also made use of tlie instrumentality of public meetings, the dates of which were chietl}' arranged by him and Mr. Miller. Other 'igencies also became active: of which there is evidence of two not very dissimilar kinds. At Aylmer the Liberal-Conservative Club reconnnenced its meetings ft)ur or five weeks before the polling day. This .same club J 28 I'KOVIXCIAL ELECTION. ,1 had been in existence and operation dnriiifj former elections, but between times it had "dropped out" (as Mr. Miller expresses it). And at the township of Yarmouth, where Mr. Brower lives, and in polling sub-division No. 7, there was a series of meetin<;s at the liouses of the most active Conservative workers in that locality, who occupi(!d tliemselves more or less with voters' lists relative to the approaching election. Mr. Brower had been member before on several occasions when the same metliods were in vogue, and must be credited with reasonable knowledge of the general machinery of the electoral campaign. Mr. Miller was also secretary-treasurer of the Conservative Association for East Elgin, and he tells us that the vice-presidents or chairmen of districts elected by the association are sup- posed to be the head men of the party in their respective localities, and are supposed to look after the local organiza- tion in the local elections. For the Yarmouth towtlship W. H. Elliott was the central or local chairman appointed by the association, and for Port Stanley Alexander Taylor occupied the same position. Mr. Brower admits that he knew Elliott was the chairman of the subdivision where he and the respondent lived, but does not recollect that he knew Taylor to be the chairman of the Port Stanley district. It is to be noted that Mr. Brower had at the time of the convention a very accurate knowledge of the names of the chairmen of eight of the polling subdivisions in Yarmouth. Mr. Elliott, wdio was the central chairman for that township, did not know these, but then procured a list of the names from Mr. Brower. The nature and methods of the association wdiich brings tht^- candidate into the Held become intelligible from tlie evidence, though great pains is taken to conceal all traces of membership. Not so clear, however, is the method of working in the actual campaign. That is left somewhat in obscurity, but EAST ELGIN. certain strong inferences result from the facts stated. Though the chief function of the Conservative association is to bring a suitable candidate into the field, yet parts of the organization remain active thereafter, that is to say, the sub-officers appointed by the organization for the whole riding or county, and styled "chairmen of the districts," are charged with the duty of managing matters within the lesser municipal or electoral subdivisions of the locality so as to promote the success of the party candi- date. At the time of nomination there existed a chairman of the whole township, and also chairmen of the various poll- ing subdivisions, and the examination of voters' lists and other work of local interest was left in the hands of these prominent men. Each locality looked after its own local organization, and active workers could easily combine their efforts in such informal meetings as did exist in this instance. There is evidence of concert and pre-arrange- ment and method in the three meetings at which some dozen of the leading local Conservative workers took regular part, of whom W. F. Luton was one. These did the work of committee meetings as usually understood, and they were regarded and spoken of as such by some taking part in them. The three meetings were held at the houses of A. A. Luton, Padden, and W. F. Luton (cousin of the other). Padden and A. A. Luton were both delegates to the convention which nominated Mr. Brower, and they were of those whom he invited and upon whom he relied to promote his return. Mr. Elliott, the central eluiirnum For Yarmouth, was a regular attender at these meetings, and he certainly was a right hand man of the re.spondent during this election. There is thus, to my mind, estabiisluul privity between the respondent and W. F. Luton, l)y means of his co-operating with these agents of the defendant in committee work. Mr. Elliott tells what was doiu! at these meetings : " I think we made arrangements who should see particular 17 — vol.. III. K.»'. 130 PUOVINCIAL ELECTION. ! 4, people, assigning to one man the duty of seeing so-and- so." He says again there was no turinal appointment of coniniittees, but tliey would meet somewhere to do the work. " I attended three such informal meetings." They also went over the voters' lists as part of the business. George Cline says that he was appointed at one of these meetings to go and see one or two voters, or he agreed to go. Again, the conduct of W. F. Luton with respect to the public meetings, on which the respondent confessedly relied to assist his election, is noteworthy. It is proved (a^" Mr. Luton's failure to recollect) that at one of the Ojpi' -: ii' public meetings he called out to those present that Mr. Brower would have a meeting on Saturday even- iit;.; did he vfoited the crowd (about 100) to attend. At the Bro».er uioetim: Mr. Elliott was appointed chairman {probably because he was officially so), but he desired Mr. Luton to act in his stead, in consequence of which he was proposed and took the chair. Luton also interviewed voters before the polling day, and took others to the poll on that day — all acts tending to shew agency ; but the most emphatic is his conduct at the informal committee meetings by which the substantial work of the contest was done in that locality. Luton was a man of Importance, well-to-do, and for many years reeve. He did not hesitate to expend money on his side, and he has not, to my mind, successfully cleared up the -unguarded statements of which Purlee speaks. If an agent of the candidate, as I think he is proved to be, he «annot be regarded as a subordinate one. There was a narrow majority upon a large vote polled ; and, having regard to the other acts proved in the nature of illegal and corrupt practices, I do not think that the election can be upheld by the saving clause of the statute. I also think that Taylor should be regarded as Mr. Brower's agent. It is nothing to the purpose that Mr. Brower says in his last evidence that he does not recollect EAST ELGIN. 131 that he knew Taylor to be chairman of tlie Port Stanley district. Ah a fact, Alexander Taylor was appointed to be the vice-president of that municipality. Ho that he had the ri^ht to control and direct the local or<(anization there accordintj to the well undenstood method of workintj. We find him as an active and contributinjj member of the Conservative Club at Port Stanley which was brought into activity for the election. He attended two meetings when the voters' lists for the whole village were gone over. "^I'lie active Conservatives of the village attended for the purpose, as Taylor says, 'of working out Mr. Brower's cause." There was no other committee in the place than this club. Taylor also, being cliairman of the district, took the chair at the «one meeting Mr. Brower held at Port Stanley and made remarks in the candidate's presence commending him to the people. He had met Mr. Brower the night before the meeting, and had a short talk with him* about the election. The corrupt practice of this man, as found by the trial Judges, affects the candidate because of his imputed agency. Mr. Brower's professed ignorance of any organization to support him cannot weigh agfiinst the circumstances of the case. Technically and formally, perhaps, there was no organization, but there was a quiet and ettective method of working by which his return was accomplished by the party whose candidate he was. He cannot accept the nomination of the association, and also claim the benefit of the tactics pursued by party methods, without becom- ing involved in the responsibility attaching to any unfair or illegal acts done by the active workers to whom was committed the conduct of the election. In the more modern and American way of electioneering, the candidate almost disappears as an active agent, and is superseded by occult party machinery adapted to evade the decision of the Courts, and seeking to render detection of wrong-doing ppp-p 132 PROVINCIAL ELECTION. difficult, if not impossible. Tlie Court must also move : and, as was said in the Haldimand Ca^e, I Elec. Cas. at p. 578, by Mr. Justice Falconbridge, and approved by the present Chief Justice of the Supreme Court, " be astute to meet and cope with the ever increasing ingenuity of some of those who manage election contests." For these reasons, shortly given, I think the election should be vacated, and costs should go to the appellant. Maclennan, J.A. : — This is an appeal from the judgment of Osier and MacMahon, JJ., dismissing a petition to set aside the election of the respondent Brower as a member of the Legislature of Ontario. The learned Judges found two corrupt acts to have been committed by one William F. Luton, and one corrupt act by each of three other persons named Ferguson, Taylor, and Day ; but they determined that none of those persons was proved to have been an agent for whose acts the respondent was answerable, and that the validity of the election was not affected thereby. It was contended very strenuously before us on behalf of the respondent that the corrupt acts alleged to have been connnitted by Luton were not sufficiently established by evidence ; but I am of opinion that the judgment in that respect is fully warranted by the evidence and ought not to be disturbed. The finding of the corrupt practices on the part of Ferguson, Taylor, and Day was also challenged by tlie respon" and further addresses in j\Ir. Brower's interest, including another address from himself. The association having in this way chosen and put forward its candidate, nothing more remained to be done for a season or until the announcement of the issue of the writs, but it did not, as I think, separate to remain (juiescent until occasion arose for the nomination and put- ting in the field of another candidate for another election. There yet remained the promotion at the proper time of the return of its candidate, Mr. Brower, as the member to represent the riding in the Legislature of Ontario. When the time arrived the central authorities again became active. Tiie vice-presidents of the districts were EAST ELGIN. 139 notified and required to eonnnunieate with the chainnen of the polling subdivisions and to j;et them to work. The whole organization thi'oughout all its ramifications and agencies was stirred up and put to work upon the business of securing the candidate s return. In all this there was notliing improper. It was but a fulfilment of the assurances — which Mr. Brower had a right to expect wguld be fulfilled — of the association's support of his candidature. But it ajl points to this, that where there is found an as.sociation with objects, aims, and purposes .such as these — with its cho,sen candidate in the field, a candidate not self-proposed or seeking the sufihiges of his fellow electors of his own motion, but oidy because he has been cliosen and is being backed by the association — it is not m if air to say that acts done by the association or its known orticers, or by persons authorized by them, in the cour.se of the election, should be held to afiect the candidate as acts done by his agents, though without his actual knowledge. Where a candidate places himself unresei'vedly in the hands of an organized body of his fellow electors, accepts their nomination, pledges himself to them, asks for and receives the assurance (^f their support, and in reliance upon them takes the field, he ought not to be permitted to shelter liimself from the conse(|uences of acts done or authorized by that organization on tlie gi'ound that he did not know that the per.son who.se acts arc in ((uestion was acting or assuming to act in his interest. It then becomes a nuestion upon the evidence in any given case whether the per.son whose acts are impeached was a member of the as.sociation, or was working under or at the request of the a.ssociatitjn or any of its known ofiicers, in the cour.se of the election, if so, that the candidiite personally gave no authority ougiit not Lo be anything to the purpo.se. Applying these views to the cases before us on tiiis '■-f n fr ■im 140 PROVINCIAL ELECTION. appeal, I have come to the conclusion that the evidence fails to connect W. F. Luton with the association or its officers in such manner as to affect the respondent by his acts or to render his acts liable to be deemed acts done by an agent without the respondent's actual knowledge. It cannot be denied that the modest reluctance to exhibit their gocJ deeds to the world shewn by some of the witnesses put great difficulty in the petitioner's way of establishing agency. But, making all fair allowance for that, there still remains positive testimony, which has been accepted as truthful bj'^ the learned trial Judges, to the effect that Luton was not given any work to do in the election, and that he undertook no part in it at the request or by the direction of the association or any of its officers. The evidence is, that the committee meetings (so called) were not called by Mr. Elliott, the vice-president of the district, or by any other known officer of the association : that Luton was not invited or requested to be present by Mr. Elliott or any known officer; that, though present, Luton took no part in anything that was being done ; he was not referred to or requested to take part or to undertake to look after any persons on the voters' list or to give or gain information about any such persons. Upon the evidence it would appear that for some reason or other he held nloof, or was held aloof, from par- ticipation in whatever election work was done at these meetings. Even at liis own house lie was merely an onlooker as regards the election work, and devoted himself chiefly to the entertainmeiit of his guests' wives. The testimony and the findings do not leave it open to us to draw inferences to the contrary of the conclusions reached by the trial Judges. These matters have been positively seated in the testimony and the statements have been accepted as true. And while we cannot avoid doubts in regard to the testimony of a person who, while disclaiming any special EAST ELGIN. 141 interest in the candidate or the result of the election, is found willing to pay %5 to a man to take care of his house 80 that he may be enabled to give his whole day to the election, while the recipient, who happens to be a voter in the opposite interest, is kept away from recording his vote, as well as to disburse other aunrj for illegal purposes, we cannot, in face of the trial Judges' findings, reject the testimony. W. F. Luton was not himself an officer of the associa- tion or a delegate to the convention, and he is not upon the accepted testimony connected with the doings of the association or its officers in the course of the election. Such canvassing as he did, and the conveying of voters to the poll (which appears to have included giving a lift to a voter on the opposite side), are found to have been done of his own motion, and the act of taking the chair at a public meeting, at which the respondent was not present was a formal thing without any pre-concert. But as regards Taylor I am, with much deference, of the opinion that for his acts in the course of the election the respondent ought to be answerable. That the latter did not know or was unable to recollect that Taylor was vice-president of the Port Stanley district is of little importance. It would be an insult to his intelligence to suppose that he was not aware of the organization of the association under whose auspices he came forward as a candidate, That lu- knew thei-e was a vice-president of the Port Stanley district, whoever the individual might be, is more than likelv. He cannot have been unaware that in every district, Ix-oinning with that in which the nomination meeting had been lield, there was the same method of carrviny; on the aM'airs and work of the association as in the disti'iet in which he resided. He was present at the public meeting at Port Stanley held in the interest of his electioji, over which Tayloi- presided as chairman as of right by virtue of his position as vice- president of the district. mm i I'l 142 PHOVINCIAL ELECTION. I ::ii, The evidence Hhews Taylor to have been one of the active supporters of the respondent, contributing time, energy, and monej'^ towards his election. Taylor was an officer of and a prominent worker in the association, and I agree with the learned Chancellor in thinking tliat the respondent cannot accept the nomination of the association, and also claim the benefit of the tactics pursued by party methods, without becoming involved in the responsibility attaching to any unfair or illegal acts done by the active workers to whom was conmiitted the conduct of the election. I agree with the learned C'ancellor in holding the respondent affected by Taylor's acts, though, in view of the trial Judges' findings, I have not been able to come to the same conclusion upon the evidence with regard to Luton. Taylor having committed a corrupt act, the election is prima facie avoided, and it thus becomes a question wliether the respondent is entitled to the benefit of sec. 172. Of this section it has been judicially remarked that every Judge who has had occasion to consider it has found it an embarrassing one. It has also been said by high authority that its curative provisions should be applied with great caution, the onus being upon the respondent to convince the Court that the result of the election cannot have been affected or cannot reasonably have been supposed to have been affected by the corrupt and illegal practices at the election shewn in the evidence and reported upon by the trial Judges. If Taylor's act was the single act proven — if it . tood alone — it might be safe to say that it ought not to avoid the election, for, though I am far from thinking that the act of providing money to be used by another in betting upon the result of the election is a venial act, or one that should be considered trifling in its nature, yet, as it happened, Taylor's act in this instance taken alone could not be said to have affected the result. tAST ELGIN. 143 But under hgc. 172 Taylor's act is not to be taken alone. It must be taken in connection with the other illegal practices which have been shewn. The trial Judges have reported several instances of corrupt practices. They have reported one person guilty of an act of undue influence, three of being concerned in acts of bribery, and Taylor and two others of being con- cerned in providing money to be used in betting on the result of the election, all of them grave ofl'ences against the law. The total vote polled was over 4500, and the majority was 29. The acts of bribery were committed by W. F. Luton, and, according to the evidence and the findings of the trial Judges, were conducted under circumstances shewing premeditation, deliberation, and secrecy. It is by no means clear that he was not willing to spend further sums in similar ways in order to aid the respondent's election, and the evidence does not remove the impression that the reported acts were not the only cases of the kind in which Luton was concerned. I repeat what has been said in other cases, that in con- sidering whether a corrupt act or acts is or are trifling in their nature or extent the Court will bear in mind that bribery has always been deemed to be the head and front of election offences, that its influence is. by no means limited to the individual bribed, and that its powers are in the highest degree Protean and difl^cult to trace. In view of the corrupt and illegal practices shewn in this case, I am unable to say that the section can be properly applied to save the election. I therefore agree that it should be avoided with costs. Lister, J.A. : — I think that Taylor was, within the meaning of the decisions, an agent of the respondent. He was a member f ■ I i' im^ 144 PROVINCIAL ELECTION. of the Conservative Association, and his duty was to advance the interests of the candidate of that association in his district. The respondent, therefore, is affected by his acts. An illegal act by Taylor having been proved, all the other proved illegal acts, though not committed by the respondent's agents, must be taken into consideration in applying the saving clause. Having regard to the acts proved, it is, in my opinion, impossible to apply the saving clause in this case, and the election must be set aside. E. B. B. SOUTH PERTH (1899). PROVINCIAL ELECTION. Before Street and Meredith, JJ. Stratford, Juve Sii and 30, 1899. Lindsay Ellah, Petitioner, ,i V. Nelson Monteith, Respondent Corrupt practice — Intoxicatiiuj liquor at card party — Payment by mihscrip- tion — German cuMom — Voter>< tints — Finality— Issue of mrit for bye- election — Power of Lerjislatire Assembly. A number of voters met at a voter's house for the purpose of going over the voters' lists and then of having a card ])arty. After the lists were disposed of the card party took place, and meat and drink were supj)lied by the host, but the drink, a quarter cask of beer, was jmid for by subscription, according to the custom of the locality, which was a German settlement : — Held, not a corrupt jiiactice within tlie meaning of sec. 161 of the Elections Act, R.S.O. 1S})7, ch. <». Held, also, that no encjniry could be nuidc on a scrutiny as to voters being under tlie age of twenty-one as the voters' lists were final and conclusive on that |)oint : — Held, also, that the Legislative Assembly has jrawer while in session to order the issue of a writ to hold a bye-election, sec. 33 of R.S.O. 1897, applying only to vacancies occurring; while the Assembly is not in session. SOUTH PERTH. 145 The petition set out that the election was held on the 21st and 28th days of February, 1899, and* contained the usual charges of corrupt practices, as well as charges that the writ for the election was issued while the Legislative Assembly was in session, and that the issue of such writ during such session was illegal, and all proceedings taken under it were void. Riddell, Q.C., for the petitioner. Aylesworth, Q.C., for the respondent. Street, J. : — In my opinion the objection taken by the petitioner to the validity of the writ of election cannot be sustained. The objection, as I understand it, is that statutory autho- rity is required for the issue of a writ to hold a bye-elec- tion, and that there was none in existence authorizing the issue of a writ by the Speaker of the House during the session ; in fact, that the issue of such a writ dinnng the session by the Speaker is contrary to sec. 38 of eh. 12 R.S.O. 1897. In the present case it appears that the writ was issued upon a resolution of the House directing its issue. It is not necessary to consider whether the House has any inherent right to act in this way because it has a clear statutory power to do so. The old Controverted Elections Act ch. 7 of the con- solidated statutes of Canada remained in force certainly down to and after confederation (see 36 Vict. ch. 28, sec. 56 (D.)), and by sec. 94 " the House " is empowered and required to give the necessary directions for issuing a writ for a new election where the return of a member has been set aside upon an election petition. " The House " here referred to was the Legislative Assembly of the Province of Canada as it then existed. 19 — VOL. III. E.C. mm 146 PROVINCIAL ELECTION. By sec. 84 of the B.N.A. Act it is provided that until the Legislature of Ontario otherwise provides all laws existinj^ at the time of the union in that Province with regard inter alia to the issuing of new writs in case of seats vacated otherwise than by dissolution shall apply to elections of members to serve in that Legislature. Sec. 61 of ch. 11 R.S.O. 1897, provides that the Legis- lative Assembly upon being informed of the setting aside upon petition of the return of a member of the House shall forthwith give the necessary directions for issuing a writ for a new election. Sec. 33 of ch. 12 R.S.O. 1897, is the sectioh upon which the petitioner here relies. It provides that " no writ shall issue under any of the provisions of the next preceding seven sections during a session of the Legislative Assem- bly." When the seven sections here referred to are examined it is apparent that what is intended by them is merely to afford a machinery for the issue of writs for new elections in the cases where vacancies happen whilst the House is not sitting ; and that they are not at all in con- flict with the statutory or other powers of the house when it is in session to direct the issue of writs for the holding of bye-elections. . At the trial of this petition at Stratford after full argument we expressed our views as to the other matters raised by it upon which evidence was offered, as well as upon the matters of law and fact discussed before us. In accordance with those views we determine now that the respondent was duly elected at the election referred to : that no corrupt practice has been proved to have been committed by or with the knowledge and assent of any candidate at the election : that John O'Brien was proved at the trial to have been guilty of a corrupt practice at the said election : and that we have no reason to believe that corrupt practices have extensively prevailed at the said election. _ SOl^TH PERTH. 147 The petitioner must be ordered to pay the costs, and the petition nmst be dismissed. Meredith, J. : — Mr. Riddell endeavoured to support the petition upon three grounds, namely : — 1. That the election was entirely void, having been held, as he contended, in violation of the provisions of sec. 33 of ch. 12 R.S.O. 1897: 2. But if not, that the candidate Moscrip was entitled to the seat on a scrutiny of the votes ; 3. And that in any event the election should be avoided because of corrupt practices by the respondent's agents without his knowledge. There was ao contention at the trial that the respon- dent should be disqualified. The charges of corrupt practices were all dismissed during the trial. Indeed, there was no very serious con- tention that any of them, except that numbered 62 in the particulars, could be supported. The facts of that case were that a number of voters met at a voter's house, most of them for the double purpose of going over the voter's list in the respondent's interest, and of afterwards having a card party ; all of them attending for the latter purpose. After the business connected with the election was over the whole party continued in the pleasures of a card party until two o'clock in the following morning ; and during the latter time meat and drink were supplied to all by the master and mistress of the house ; but the drink was after- wards paid for according to custom in the locality by subscription, each person being supposed to pay a fair proportion of the cost of the drink, which was a quarter cask of beer. This took place in what is known as a German settlement, the voters were Germans or of German extraction, and what was done was said to be entirely in jiccordance with German customs there. 148 PROVINCIAL ELECTION. We held that this was not a corrupt practice witliin the meaning of sec. 161 of tlie Elections Act (1) because, substantially, each person paid for his own drink, and the food was supplied by the master of the house in his usual place of residence ; and (2) it was not supplied at any meeting of electors. There was no doubt, whatever, that these persons met for the two separate and (|uite discon- nected purposes, and that the business part of the evening was entirely over and the solely " social " part was going on when the drink was obtained. There was nothing whatever to arouse even a suspicion that the double purpose of the meeting was a scheme to evade the enact- ment in (juestion. The master of the house had been newly married, and all the testimony, and the evidence of the surrounding ciicumstances, pointed to the good faith of the persons concerned and to the truth of the conclusion in fact we reached. And I may now add that had a corrupt practice been shewn there was not sufficient, if any, evidence of agency to connect it with the respondent. It was not Christian Rock but his brother who was the supposed politician ; and the brother had no part in providing the drink except in so far as he paid for his own share. With every degree of watchfulness against every sort of evasion of this enactment I am still of opinion that no case whatever has been made out upon this charge. In regard to the scrutiny, ^ve held that it was not open to the petitioner to shew or endeavour to shew that some of the voters whose votes are objected to and sought to be struck off were under age at the time of the polling ; that the voters' list was final and conclusive on that ques- tion upon a scrutiny. What the plaintiff desired to do was, upon a scrutiny under sec. 76 of the Controverted Elections Act, R.S.O. 1897, c. 11, to enter upon an enquiry as to the ages of some of the voters, with a view to having their votes SOTTTU PKUTM. 149 open some struck off, upon such Hcrntiriy, if it were sliown that tliey were not of the full nj^e of twenty-one at the time of voting. But that is in the teeth of sec. 24 of the Voters' Lists Act, R.S.O. 1897, ch. 7, an enactment passed for the very pm-pose of prevent! n<^ such enquiries owing to the great delay and cost which they occasioned. It was contended that sees. H and f) of the Elections Act, R.S.O. 1897, ch. 9, conflicted with the other enact- ment and displaced it. But we are to give effect to both if possible ; and I perceive no difficulty in doing so. A person not of the full age of twenty -one years is not entitled to vote, but tlie proper time to have the cjuestion of his age and right to vote in that respect determined is upon the revision of the voters' list ; if it is not done then it cannot be done afterwards upon a scrutiny. The purpose of the legislation was to give an oppor- tunity in a cheap and speedy manner to have all such questions as are not excepted out of see. 24 finally and conclusively determined, and to prevent just what was sought to be done here, reopen such questions and have them retried and again adjudicated upon at great delay and expense. In view of our ruling upon this question, but without submitting finally to it, Mr. Riddell abandoned the other questions which were open to him upon the scrutiny, saying that he could not hope to succeed upon this branch of the case without having the votes of those he hoped to be able to shew were under age when they voted, struck off. The other ground taken by Mr. Riddell seems to me also to lack any substantial foundation. It is rested upon sees. 28 and 33 of the Act respecting the Legislative Assembly, R.S.O. 1897, ch. 12, and the supposition that there is no other lawful way in which, in such a case as this, a new' writ for an election could have been issued ; the supposition is a fallacy. ill r 150 nun'INCIAL ELECTION. It entirely disrotijanlH see. (51 of the Conti'overted Elections Act, which expnvs.siy j^ivcs the power uxiMci.sed in this cuHc by the Le^iHlativ*; Awsi'mbly. It is very plain to nie that the; .sections relied upon by Mr. Riddell and the others of a like character in the .same Act were enacted lo prevent the delay of a re-«'lection until the Lej^i.slative Assembly should be in session, to retjuire the election of a meniber for the constituency forthwith after th6 .seat became vacant : and hi no man- ner whatever interfered with the power of the Hou.se when in .session ; a power which existed by statute — whether otherwise or not we need not stop to consider — before confederation and which was continued in the provinces until the legislation by the B.N. A. Act other- wise provided : see .sec. 94 and C.S.C., ch. 7, sec. 94. I would dismiss the petition upon all its branches with costs. u. A. b. EAST MIDDLESEX. i • PROVINCIAL ELECTION. Before Osler, J.A., in Chamber.s. February 27th, and March 3rd, 1899. Dmrmsal of Petition at Trial, Sheriff's Cmt of Puhliinh lyment of Petitioner — Claim of Security Depo" Where an election [letition is dismissed at the trii. ihout costs^, the jietitioner must jmy to the sheriff the costs incurred 'he i»i iicution of the notice of trial thereof; and although the siim dt .sited as security is not security for such exjienditure, payment out <>t Court will only be ordered on the condition of its being made good to the sheriff. No charge can be made by the sheriff for attending to the publication, no allowance therefor being authorized by the tariff'. This was a petition to the Court to decide as to the proper party to pay the costs of the Sheriff of publishing EAST MIDDLESEX. 151 the notic«i of trial of tho pt'tition to set aside the election, tlie petition havincj been (lismissed without costs at the trial. Aj/lcsworth, Q.C., and W. D. Mavjthermi), for the petitioners. The Sheriti" in person. OsLEH, J.A. : — the A (juestion is made as to who is the proper party to pay the Sheriffs costs of publishing the notice of trial in these cases in the electoral division, the petition having been dismissed without costs at the trial. The petitioners contend that these expenses are part of the charges or expenses of providing a court and should be paid by the Crown. The Sheriff' states that the officer charged with examin- ing his accounts has refused to allow his disbursements for publication, and urges that he ought to be paid by somebody. The Act R.S.O. 1897, ch. 11, -s the only authority for imposing charges upon moneys providet! by the Legislative Assembly. The only charges are those mentioned in sec. 521 : Fees for witnesses who may be called and examined by the trial Judges ; and in sec. 117: "All expenses properly incurred by the Sheriff" in attending on the Judges and providing a court." I do not see how, by any stretch of interpretation, the cost of publishing notice of trial, which is required to be done by Rule of Court passed under the authority of sees. 41 and 112, can be treated as part of the expenses of "providing a court." The deposit required to be made by the petitioner is security for all costs and expenses that may become payable by the petitioner to : (a) an^ person summoned I 152 PROVINCIAL ELECTION. as a witness on his behalf (sec. 13), or (6) to the respondent (Rule 13, see. 102). Claims on the security shall be disposed of by order of a Judj^e. All costs, charges, and expenses of, and incidental to, the presentation of a petition and to the proceedings consequent tliereon (except such as are otherwise provided for), shall be defrayed by the parties to the petition in such manner and in such proportion as the Court or Judge may determine. Under these sections I do not see how, under any circumstances, the cost of giving and publishing notice of trial can ever be considered as the respondent's costs when he succeeds, recoverable by him from the petitioner, and chargeable upon the deposit as part of his costs. Sec. 46 : The petitioner may be changed, if three montlis elapse after the day on which the petition was presented without a day for the trial having been fixed. Sec. 41 : Notice of the time and place of trial shall be given in the prescribed manner, which is by : Rule 27: The time and place of each electivon petition shall be fixed by the Judges, and notice shall be given in writing by the Registrar by sticking up in his office, sending copy to each party and another to tht Clerk of the Crown in Chancery, and another to the Sherifi". The Sherifi' shall forthwith publish the same in the electoral division. This publication, though not expressly so required as in the case ■of publication of the petition by the Returning Officer under sec. 12, has always been done by advertisement in a newspaper. And any "postponement of the beginning of the trial," under Rule 34, has always been "made public " by the Sheriff" in the same way, though not expressly required to be done in that way. There is no rule which makes the cost of publication EAST MIDDLESEX. 153 of tlie notice of trial by the Sheriff payable by the petitioner as part of the costs of the cause as Rule 9 provides in the case of the publication of the petition by the Returning Officer. Nevertheless, I think that the cost of publication of the notice of trial may properly be rei;arded as part of the "costs, charges and expenses incidental to the presentation of the petition and the proceeding.s consecjuent thereon " (sec. 102), which, if the petitioner succeeds, would be payable or might be ordered to be paid by the respondent. The petitioner presents and has the conduct of the petition. He therefore expects to have it tried, and although the Court fixes the day and place of trial of the petition, it is sot in motion by the action of the petitioner in presenting it, even if he never makes a formal application for that purpo.se, which he is indeed bound to do under penalty of having the conduct of the petition taken from him under sec. 46. The Court would not direct the notice to be given except upon the assumption — not necessary to be made in any of these cases, however, — that the petitioner was applying to have the day and place of trial fixed, and counsel appeared in fact for the petitioner at the time and place appointed by the notice. It is in every sense the petitioner's notice of trial though given by the officer of the Court. I think he is bound to pay the Sheriff, and that an order may be made upon him to do so. No doubt the sum deposited by him as security is not security for this expenditure by the Sheriff, but being in Court I think it would not be ordered to be paid out except upon the terms of making good to the Sheriff the cost he has incurred at the instance of the petitioner, as may properly be held to have been the case. It was said in the argument of the matter that this would be a suff.cient intimation of the Sheriff's i-ight and that the parties would see that he was settled with accordingly '20 VOL. HI. K.C, 154 PROVINCIAL ELECTION. I do not see that the tariff' makes any allowance to the Sheriff for the trouble he incurs in attending to the publication of the notice. This is a hardship which ought to be rectified as these officials incur a great deal of trouble and annoyance for which they are very poorly compensated, or not compensated at all. (J. F. H. RE VOTERS' LISTS OF ST. THOMAS. ONTARIO VOTERS' LISTS ACT. Before the Court of Appeal. Present: — Sir (iKokge Bhrton, C.J.O., Oslkr, Maci.ennan, Moss, AND Lister, J J. A. 10th January, 1890. 24th January, 1899. (Special Case). Voterii' list/i — Axse^smenf mmie in previoim year — Qua/ification arimig ■subsequent to final rerkion of roll — Freeholders— Tenants. Where the iissessnient for a city, on which the rate for the j'ear 1898 was levied and the voters list based, was made in the previous year, the roll having been finally revised on the 2nd December, 1897, freeholders, who were such between that date, and the last day for the revision of the voters hst, were, under sec. 86 of the Municipal Act, R.S.O. (1897) ch. 223, and sec. 14 (7) of the Ontario Voters List Act, R.S.O. (1897) ch. 7, held entitled to be jjlaced on the list ; and freeholders also who had pai'ted with the pro{)ertj' for which they were assessed, but had aotpiired other sufficient property, were held entitled to remain on the list ; otherwise as regards tenants, under similar circumstances, the form of oath required to be made by them precluding them. This was a ca.se stated f the Voters' List then under revision was based, was certified to be the 2nd December, 1897, the assessment roll for the year 1898 not being yet finally revised and corrected. , , The questions submitted were : Have freeholders or tenants of real estate, whose ownership or tenancy, as the case might be, commenced after the said 2nd December, 1897, a right, due notice qf complaint having been given, to be placed upon the Voters' List of the said city for the y<3ar 1898, then under revision ? If so, when should such ownership or tenancy have, at the latest, commenced ? • Should the Judge remove from the list any living person, whose ownership or tenancy ceased between 2nd December, 1897, and the last day for giving notice of complaint of errors in the Voters' List Allan M. Dyiuond for the Attorney-General. No one contra. The case was heard before the full Court. Maclennan, J.A. : — * The assessment roll for St. Thomas was finally revised and corrected* on tlie 2nd of December, 1897, under a by- 156 KE VOTERS LISTS. law passed in pursuance of sec. 52 of eh. 193 of the R.S.O. (1887). In December, 1898, the County Judge was engaged in the revision of the Voters' Lists, and the Court is asked to answer the (questions submitted. The cases of freeholders and tenants may be considered separately. By sec. 80 of the Municipal Act R.S.O. 1897, ch. 223 and seven following sections, freeholders rated to a certain value upon the last revised assessment roll of the municipality, and who continue to be such at the date of the election, provided they are named in the Voters Lint, are entitled to vote ; and by sec. 14 (7) of The Voters' Lists Act, R.S.O. 1897 ch. 7, a person whose name is not on the assess- ment roll at all, but who after the assessment roll became returnable, and before the time for applying to correct the Voters' List has expired, has become qualified to vote, is authorized to apply to have his name entered on the list. It follows from these sections that any freeholder, who became such at any time between the 2nd December, 1897, and the last day for applying to correct the list, and who is otherwise qualified, is entitled to be added to the list, and there is nothing in the oath prescribed by sections 112 to 117 to prevent him from voting. The same sections are applicable to the case of tenants, except that tenants must have been residents within the municipality, for one month before the election. But with regard to tenants, there is a difficulty occasioned by the form of the oath prescribed to be taken by them by sec. 113, which requires the tenant to swear that he was such on the date of the return or final revision and correction of the assessment roll, on which the V^oters' List is based. Although this part of the oath may perhaps have been an oversight by the Legislature, I think we cannot say it was not intended to make a distinction between tenants, and freeholders who became such after the revision of the ST. THOMAS. 157 assessment roll. I am, therefore, of opinion that the first question must be answered favourably in the case of freeholders, but otherwise in the case of tenants. The answer to the second question must also be answered differently in the case of freeholders ai^d tenants. A fr'^^holder may have parted with the property in respect of which his name was placed on the list by the clerk, but before the time for applying to correct the list . may have acquired other sufficient freehold. In such a case I think that by force of sec. 14 (7) and sec. 16 of The Voters' Lists Act, the Judge has power to retain his name, and to make the necessary correction in other respects. It is otherwise with a tenant. If he has parted with his original tenancy, and has acquired another, he is help- less, for he is barred by the oath, which requires Irii.' to swear that he was, at the revision of the assessment roll, tenant of the property in respect of which his name is entered on the list. And even if the Judge should, under sec. 162 of The Voters' Lists Act, have inserted his new tenancy on the list, he could not swear that he possessed the new tenancy at the revision of the assessment roll. A tenant, therefore, who has parted with lijs original tenancy, must be removed from the list, on proper application being made for that purpose. Burton, C.J.O., Osler, Moss, and Lister, JJ.A., concurred. Ci. F. H. w 158 PROVINCIAL ELECTION. HALTON. PROriNCIA L ELECTIOX. Before Falconbridge, C.J., and Street, J Toronto, September 14th, 1900, • Toronto, November 12th, 1900. In Re Cross. Provincial Elections - — Corrujtt Practices — Proceedimj by SummouM — Limit atiom— Several Charqe.s—li.S.O. /.«o?', -h. 9, /^eci.' J87-8, 195. The limitation of one year for bringing action prescribed by sec. 19o, sub-sec. 3 of the Ontario Election Act applies only to actions for penalties under that section and not to proceedings by summons for corrupt practices under sees. 187-8, nor are the latter within the limitation of two years for actions proscribed by R.S.O. ch. 72, sec. 1. On such proceeding under sees. 187-8 tiiC Judges may, if they see fit, hear the evidence on all the charges before giving judgment on any of them. m- This was a motion by way of appeal from an order of Rose, J., refusing a cerUorari for the removal of the pro- ceedings in this matter. The , applicant, A. E. Cross, was convicted on April 24th, 1900, of three several corrupt practices before Osler and Maclennan, JJ.A., sitting under sees. 187 and 188 of R.S.O. ch. 9, as a Cout't for the trial of corrupt practices connnitted at an election held under " The Ontario Election Act" on February 22nd, 1898, and March 1st, 1898. A penalty of S200 was imposed for each offence, making $600 in all, which ^axn, with costs, he was ordered to pay within one month, and it was ordered that in default of payment he should be imprisoned for six months unless the penalties and costs should be sooner paid. On May 25th, 1900, a motion was made in Chambers before Rose, J., for a certiovavi to remove the proceedings 1|, H ALTON. 159 into the Hicrh Court. This wa.s refused after argument, but no written reasons were given. The motion was renewed by way of appeal and as a substantive motion before the Divisional Court consisting of Falconbridge, C.J., and Street, J. Lynch-Staanton, Q.C., for the motion, referred to Lennox Election Case (1885), 1 E. C. 422, at p. 426; Mitskoka Election Case (187G), H. E. C. 458, at p. 480 ; Hamilton v. Walker (1892), 50 J. P. 583: Regina v. McBerney (1897), 3 Can. Crim. Cases 339 ; Eegi7ia v. Fry (18^8), 19 Cox 135; Woods on Mandamus, p. 194; R.S.O. ch. 9, sees. 187, 195, sub-sec. 3. Dymond, for the Attorney-General, referred to Couiyn's Dig., vol. 2, p. 340; End. of Law of Eng., vol. 2, p. 421, Tit. "Certiorari:" Re McQuillan v. The Gitelph Juncticni R.W. Co. (1887), 12 P.R. 294: R.S.O. ch. 9, sec. 188, sub-sec. 4. Falconbridge, C.J. : — ' At the argument we intimated to counsel that in our opinion this proceeding was not an " action " within the meaning of The Ontario Election Act, sec. 195, sub-sec. (3), or of R.S.O. ch. 72, sec. 1, sub-sec. (g), and there is nothing in this objection. Nor does the second ground of objection (as to the reservation of judgment) seem to be better founded. In Reg. v. Fry, 19 Cox 135, the Justices stated that, in adjudicating on each case they applied to that case the evidence that was given in reference to it and no other. It was held that the postponement by the Justices of their decision in the first case until they had disposed of the other cases did not, under the circumstances, render the conviction in the first case bad in law. We may safely assume that the learned Judges in the present matter decided each charge on its own merits. rm^ leo PROVINCIAL ELECTION. I have not considered, and 1 do not pass upon the qne.stion, whether certiora7'i lies to remove this conviction. Street, J. : — . The grounds upon which the application for trrtiora/ri was rested were two : — 1st. That the proceedings having been conunenced after tlu; expiration of one year from the time the corrupt practices were committed, were barred by sub-.sec. 'i of sec. 195 of R.S.O. ch. 9. 2nd. That the Judges who constituted the Court resc^rved tlieir judgment after hearing the evidence upon one of the charges until they had heard the evidence in the others. Tlie first of these objections to the conviction is clearly not supported by the statute referred to. By sec. 195 of R.S.O. ch. 9, an action is given to any one who sues for any penalty imposed by the Act. In such an action the plaintiff is entitled to allege that the defendant is indebted to him in the amount of the penalty, and the action is to be tried by a Judge without a jury. It is this action which is to be commenced within a year after the act committed, and not the prosecution authorized l)y sees. 187 «'t seq., which is not an action, and is not begun by a writ but by a sunnnons, and is in the nature of a crinunal proceeding. The second objection appears to me to be also unsus- tainable. It is provided by sec. 188, sub-sec. (1) that several charges of corrupt practices may be stated in the sunnnons reqiiiring the defendant to appear, and by sub- .sec. (7) the Court may adjudge after hearing the evidence that he has been guilty of the corrupt practice or corrupt practices, and may order him to pay the penalty or penalties assigned by the statute to the offence or offences of which he has been convicted; then by sub-sec. (11), m II ALTON. If)l where a penalty or peiialti»\s is or are iiiipoHed, tliey Hhall direct that unless the ununnit he paid within a time not exceedinjr one month, the person convicted shrill l)e imprisoned for a period not exceedintj one year. '{'he statute, therefore, expressly contemplates and permits any number of corrupt practices to be charj^ed in the same sunnnons and to be tried tojijether. and re(|uii'es one term of imprisonment to be imposed in default of payment of the total amount of the penalties ft)r all the corrupt practices included in the summons of which the person charjjed has been convicted. It was arjjued that it was contrary to *!stablislied principles to try the applicant upon the subseijuent charges without first disposing of that upon which the evidence liad been taken : but we find a special provision in sec. ()26 of the Criminal Code, 55-5G Vict. c. 2!l, (J).), foi- the trial at the same time and upon the same indictment of three distinct charges of theft alleged to have been com- mitted within six months of one another by a pri.soner. Upon the trial of such an indictment, it is manifest that the jury nmst be placed in possession of the evidence upon all the charges before being ivijuired to find the verdict upon anj' of them. The danger that a jury might not sepai'ate and properly apply the evidence upon the different charges in dealing with them is surely nmch greatei' than that a Judge miglit not do so. There are other in.stances to be found in the Criminal Code of the same character, and there is plainly no violation of any princij^le in giving to the provisions of sec. 188 of R.S.O. ch. 9 the meaning which seems plain upon their face, viz., that any numl)ef of corrupt practices charged as having been connnitted by the defendant at the same election are intended to be trie*! together and to be included in the same judgment. I think, therefore, that the course taken by the Court which tried the defendant, in refusing to pronounce separate judgments upon each charge until the evidence 21 — VOL. in. E.f. 02 PRoVINriAL KI.F/TION. U])(ni all tln' cliai'^fs wiiH coinplt'tc on liotli sidcH, wa» • ntircly eoncft. I liHVc (•xniniiictj tlic ciim's n'U'vrM to by eounHel for tlu! prt'sciit motion, vi/. : TIh' Qiucn v. Mrlitriwif, 8 Can. (Vim. Cases ;i:}!>: fI,ntnlton v. Wn/ker, [IHUi] 2 (,).H. 25: Hfj/. V. //(fcr// (|.si».S), 28 O.K. 8S7 : S.C. in \])\)., 20 A.H. ()88, but I find notliinj; i.n them which r«'(|uiivs ine tociuinjjc till! view I have cxpn'sscfl ; see also Reg. v. Fry, U) Cox 135- Th(j motion and appeal must tlu'vci'orc be disuiissed with costs. A. H. K. L. RE VOTERS' LISTS OF MARMORA AND LAKE. ONTARIO VOTERS- USTS ACT. Before Moss, J. A., /(iffi iiikI nth Ihninlxr, /!)()(>. Voters' IJm/s — Xoflir uf' L'oiiijtluiiii — Ao*'< o/' — Parol Evidence. A list of iip|)t'als, containing names .sought to V)e aflded to the voters' lists, was jnepared, and u voter's notice of complaint in Form H to the Ontario Voteis' Lists Act, H.S.O. 1S97 ch. 7, was .signed, 1)3' the complainant, attached to the list of names to be added, and handed to the clerk in his office within the thirty days required by the statute. When the list was produced by the clerk in Court, the notice of comj)laint was missing: — /fi-/ of Cimipfaliil - Sirrln on Clirh — Hiii'istn-nl iMfiv. A notice of uomplaint, with list of imiiu's, was received l»v the clerk through the iniiil hy rejristered letter, in (liie time :~- y/eW, that sec. 17 (1) of the Voters" Lists Act. f-?..S.O. ISitT eh. 7. l„if| been comj)lied with. Stated ca.se lieard under the statute. The facts ap])ear in the judofment. ./. R. ('nrfir)-i.f/lit. Q.C., for the Attoniey-Cieiieral foi- Ontario. W. .A il/oo/r, for certain voter.s. Mo.ss, J. A.: — Case .stated by the junior Judge of the count}- of Hastings and referred by the Lieutenant-Ciovernor in 166 HK VOTKKS LISTS. C^Iouneil under sec. :ifS oi" the Ontario N'ott-rs" Lists Act, R.S.O. 1897 ch. 7. Sec. 17 ( 1 ) of the Act provides that "a voter inakiiifi^ a com])laiiit shall, within thirty days after the clei'k of the uuinicipality has post'jd nj) the list in his otHce, trive to the clerk or leav<' for him at his resi- dence or place of business, notice in writing (jf his coui])laint and intention to apply to the Judt/e in respect thereof." The case finds tfuit the clerk (jf the municipality of the township of Madoc j)().sted up the lists of voters for the municipality in his otHce on the 2Iird Auj^ust, 1 !>()(), and that on tlu' 2 1st September. I !)0(), notice of complaint with list of names was received by the clerk throusrli the mail bv rciiistered letter. The notice, therefore, came to th" Iwuids of the clerk within thirty days after he had ))osted up the lists. Hut at the sittint;' of the Court held foi- the heaiino- of complaints aji'ainst the lists objection was taken to the list of names and notice of complaint on th< orodud (hat the notice was not properly i^iven. It was objected that sec. 17 (1) re(|uires either jXMsonal scrx ice upon the elei'k or upon a oTown u]) person at his rts.sidence or place of l)usiness, and thai his rectupl of the notice of cf)iuplaint from the post otHce official was not a compliance with the provision. The (piestion upon the case is: Vnn this list be enter- tained '. The important mattei- to be attended to under sec. 17 (1 ) is the I'eceipt in due time by the clerk of any notice of com])laint intended to be criv(.ii him. Two modes of .service are prescribed, oni' which |>ermits of its beini;" shewn that it actually came to his liands, the other which makes it sufficient to shew that it was left at his place of residence oi* business withou. })roee<'. «i7 : • Au.l I must confess I "d,, not .see why the postmaster-eeneral should be the less the a^ent of the objector foi- this purpose because he is a public orticer." No doubt, if a notice placed in the post failed to reach the clerk, or failed to reach him in due time, it wouhl not be deemed to have been »riven to him as required, and the party usincr the post must assume the risk of bein^i; unable to shew that it came in due time to the hand for which it was intended. Reliance was placeSfee Ballot, 2. CIEBK. Service on hy registered letter.] —See Voters Lists, 4. BETTING. See Corrupt Practices, 3. BEIBERY. See CoRKUPT Practices, 3. —Treating. COLLUSION. See Solicitor. BYE-ELECTION. Writ for.]— See Corrupt Practices, 4. CANDIDATE. Treat ing.] -^ See Corrupt Practices, 1. CASES. Haldimand Case (1888), 1 EC 529, distinguished.] 'See Corrupt Practices, 3. Haldimand Case (1890), 1 E.C. 572, distinguished.] — 'See Corrupt Practices, 3. JenJcins v. Brecleti (1883), 7 S.C.R. 247 followed.]— ,SVe Bal- lot, 4. COERUPT PRACTICES. 1. Treating — Candidate — Corrupt Intent— Habit.]-~The undisputed evidence shewed that the respondent from the time of his nomination as the candidate of his party frequently treated the electors and others in the bar-rooms of hotels whilst en- gaged in his canvass. He was not a man whose ordinary habit it was to treat, nor one who, in the course of his ordinary occupation, frequented bar- room.s. Held, Osler, J.A., dissenting, that the trial Judges properly j drew the inference thf.t the treat- ing was done with con-upt intent, so aa to avoid the election of the respondent. Remarks by Burton, J. A., on the amendment to tlie Election Act^ in respjct to " the habit of treating," by 58 Vict., ch. 4, sec 21 (0.). West Wellington (Pro- vinci(d), 16. 2. A I lev s ~ Nov -residents ~ Voting Without Right—. A dual EMS l-t\ 172 DIGEST OF CASES. [vol. knowledge • — A gency — Evidence —RS.O. 1887, ch. 9, sec. 160.]— Actual knowledge on the part of a voter that he has no right to vote is necessary to constitute a corrupt practice under R.S.O. 1887, ch. 9, sec. IGO. Evidence to establish agency discussed and found insufficient. South Riding, County of Perth (Provincial), 30. 3. Voting Without Right — Knoicledge — Bribery — Infer- en ce from Evidence — Provid ing Money for Betting — Loan — Agency— Pooof of — Party As- sociation.] — It was charged that a person had voted at an election knowing that he had no right to vote by reason of his not being a resident of the electoral district. He knew that his name was on the voters list, and that it had been maintained the. ^ by the County Judge, notwithstanding an appeal, and he believed that he had, and did not know that he had not a right to vote : — Held, affirming the decision of the trial Judges, that a cor- rupt practice under sec. 168 of the Election Act, R.S.O. 1897 ch. 9, was not established. Under that section the existence of the mala mens on tlie part of the voter," knowing that he lias no right to vote," not merely his knowledge of facts upon the lejial construction of which that right depends, must be proved. The offence does not depend upon his having taken the oath ; it may be proved apart from that ; nor does the fact that he has taken the oath, even if it be shewn in point of law to be untrue, neces- sarily prove that the offence has been committed. Haldimand Case (1888), 1 Elec. Cas. 529, distinguished. (2) Held, affirming the deci- sion of the trial Judges, that the bribery by L. of two persons to aKstain from voting against the respondent was established by the evid( nee, although it was not shewn that anything was said to them about voting, L. having paid them for trifling services which he engaged them to perform upon election day, sums considerably in excess of the value of such services, know- ing them to be voters and to belong to the opposite political party. (3) As to ti.b agency of L., it appeared that tho respondent was brought into the field as the candidate of his party, having been nominated at a convention of the party association for the electoral district ; L. was not a delegate to, nor was he pre.sent at, the convention ; and he was not upon the evidence connected with the association or its offi- cers ; he was not brought nto touch with the candidate, nor any proved agent of his, either as regards his or their know- ledge of the fact that he was working or proposing to work on behalf of the candidate, or as regards any actual authority con- ferred upon him to do so. But L. f L., it ondent as the laving ention or the not a present le was nected s offi- nto e, nor either Know- le was work or as ■jy con- But II.] DIGEST OF CASES. 173 he was present at three meetings of electors when the voters' list was gone over; he acted as chair- man of a public meeting called in the respondent's interest; he canvassed some voters; and, from his antecedents, the respondent hojx'd or believed or expected that he would be an active supporter:-— Held, affirming the decision of the trial Judges, Boyd, C, dissenting, that L. was not an agent of the respondent. HalrHmand Case (1890), 1 Elec. Cas. 572, distinguished. (■l) Three persons, T. being one of them, each lent SIO to R.L., knowing that the moneys so lent were intended to be used by him, as he then told them, in betting on th*^ result of the election. Any bet or bets which he made were to be his own l.iets, not theirs, and he was to return the money in a couple of days. He did not succeed in getting anyone to bet with him, and he returned the njoney to each on the following day: — Held, affirming the decision of the trial Judges, tiiat this was providing money to be used b}^ another in betting upon the election, and was a corrupt practice within the meaning of sec. 164 (2) of the Election Act. (5 ) As to the aoffnev of T., it i appearcfl that he was one of the local vioe-pivsidents of the party association above referred to; he I had be* n pvcsvnt at two meetings I of local party men calling them- 1 selves a "Conservative Club,"! who were interesting themselves in the election, and had con- tributed towards the cost of hiring the club-room; at these meetings he had gone over the voters list with others, which was the only work done; at a meeting lield by the respondent in the place where T. lived, he had presided, having been elected chairman by the audience, and he made a speech introducing and commending the repondent; before the meeting he had met the respondent in the street, had shaken hands with him, and asked him how thinfrs were going. The respondent did not know that T. was local vice- president, and had never heard of the "Conservative Club." T. was not a delegate to the nomin- ating convention nor present tlieveat. The association, as such, was not charged with any defin- ite duty in connection with the election except the selection of a candidate: — Held, reversing the decision of the trial Judges, BuuTON, C. J.O., and Maclennax, J.A., dis- senting, that T. was an agent of the respondent. Ea.st Elgin (Provincial), 100. 4 Intoxicating Liquor at Card Party — Pajpnent hy Snh- scripfioi) - (iorman Custom — Voters Lists — Fiiudity — Issue of Writ for Bye-election — Power of Legislative Assenifdy.] — A number of voters met at a voter's house for the purpose of going over the vot«'rs lists and 174 DIGEST OF CASES. [VOL. then of having a card party. After the lists were disposed of the card party took place, and meat and drink were supplied by the host, but the drink, a quarter cask of beer, was paid for by subscription, according to the custom of the locality, which was a German settlement : — Held, not a corrupt practice within the meaning of sec. 161 of the Elections Act, R. S. O. 1897, ch. 9. Held, also, that no enquiry could be made on a scrutiny as to voters being under the age of twenty-one, as the voters lists were final and conclusive on that point: — Held, also, that the Legisla- tive Assembly has power while in session to order the issue of a writ to hold a bye-election, sec. 33 of R.S.O. 1897, ch. 12, applying only to vacancies occuring while the Assembly is not in session. South Perth {1899) {Provincial), 144. 5. Provincial Elections — Co rr iipt Practices — Proceedings by suTYimons — Limitation — Several Charges— R.S.O. 1897, ch. 9, sees. 187-8, 195.] — Th^ limitation of one year for bring- ing action prescribed by sec. 195, sub-sec. 3 of the Ontario Elec- tion Act applies only to actions for penalties under that section, and not to proceedings by sum- mons for corrupt practices under sees. 187-8, nor are the latter within the limitation of two years for actions prescribed by R.S.O. ch. 72, sec. 1. On such proceeding under sees. 187-8 the Judges may, if they see fit, hear the evidence on all the charges before giving judgment on any of them. Halton {Provincial), 158. COSTS. 1. Cross Petition — Security for Costs.] — Under sec. 13 of the Controverted Elections Act, R.S.O. 1887, ch. 10, security for costs is required only in the case of the original or principal peti- tion, and not in that of a cross petition. Kingston {Provincial), 10. 2. Dismissal of Petition at Trial, Sheriff's Costs of Publica- tion — Payment by Petitioner — Cluim on Security Deposited.] — Where an election petition is dismissed at the trial without costs the petitioner must pay to the shf^rifF the costs incurred in the publication of the notice of trial thereof; and although the sum deposited as security is not security for such expenditure, payment out of Court will only be ordered on the condition of its being made good to the sheriff. No charge can be made by the sheriff" for attenc'- ing to the publication, no allow- ance therefor being authorized by the tariflf. East Middlesex {Provincial), 150. II.J DIGEST OF CASES. 175 1. Security fov.]~See Petition, Security for ~ Deposit]— See Solicitor. CROSS PETITION. See Costs, 1, JTTEISDICTION. CUSTOM. See Corrupt Practices, 4. Substituting Petitioners.] See Petition, 1. Service out o/.]—^ee Petition, 2, KNOWIEOOE. See Corrupt Practices, 2, 4. DEPOSIT. Lien on.] — See Costs, 2. — Solicitor. LEGISLATIVE ASSEMBLY. Powers in Session — Vacancy —Issue of Writ.]~See Corrupt Practices, 4. DEPUTY KETURNING OFFICER. See Ballot, 2. EVIDENCE. See Corrupt Practices, 2. LETTER. Registered — Service by.] — See Voters Lists, 4. LIMITATION OF ACTION. See Corrupt Practices, 6. LOSS. FREEHOLDERS. See Voters Lists, 2. Of Notice of Complaint.]~See Voters Lists, 3. INTOXICATING LIQUORS. See Corrupt Practices, 4. JUDGMENT. See Particulars. MEETING OF ELECTORS. See Treating. MEMBERS. Return of — When Made — R.S.O. 1897 ch. 11, sec. 9— Pre- sentation of Petition — Notice of Endorsement on Petition — Ne- cessity for Separate Notice.] — 17() DIGEST OF CASES. [vol. The return of a iiioinber by the returnin<^ otKcer Is only made when it lias b(!en actually re- ceived hy the clerk of the crown in chancery, and not when the roturninSee Costs, 2. With (Ira iva iSahst itut ion of Petit ionrrs.] — See SoLfciTOR. Present at ion of.]~See Mem- bers. S250, and the reHpondent's inujority whh Co out of a total vote of about 5,000 : — Held, that the eh'ction was ri^'htly avoided, notwithstandin QUAIIFICATION. See Voters Lists, 2. the .saviiifj cUiu.se in .sec. 172 R.S.O. eh. {). North Waterloo (Provincial), 70. ■ REGISTERED LETTER. Service by.] — See Voters Lists, 4. RESIDENCE. See Corrupt PiUCTicEs, 2. Voters Li.sts, 1. RETURN OF MEMBER. When Made.]~See Memhers. 2. R.S.O. JSnr eh. 9,m: 1,2 — Majority — Undue Injivence — lirihery.] ~- Tlie total vote polled was over 4,500, and the majority for the respondent was 29. The trial Judges had re- ported one person guilty of an act of undue inHuonce, t .ree, of being concerned in acts of bribery, and T. and two others of providing money for bet- ting :— ^ Held, that sec. 172 of the Election Act could not be applied to save the election. East Elgin (Provincial), 100. SAVING CLAUSE. 1. E.S.O. J 897 ch. n,sec. 17 > ~ Bribery— General Election Fvmd — Majority. —Wh^re only two acts of bribery were proved, but the perpetrators were both active, and one an important agent of the candi- date, neither of whom was called at the trial, and one of the bribes though only $2, was paid out of a general election fund, to which the respondent had contributed 23— VOL. n. E.G. SECURITY FOR COSTS. See Costs. SERVICE. Of Petition Out of Jurisdic- tion.] — See Petition, 3. Of Notice of Complaint.]— See Voters Lists, 4. SHERIFF. Costs of Publication — Not of Trial.]— See Costs, 2. ice IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 >^' li^ 12.2 111' m ""'^ ''^ m 1.4 6" V] <^ /: 7 /^ Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 |. ft; i\ iV <^ <^ 4>t '-I'll ^V 6^ ^ 178 DIGEST OF CASES. [VOL. I it) STATUTES. R.S.O. 1887, ch. 9, sec. 160.] — See Corrupt Practices, 2. 68 Vic, ch. 4, sec. 21, (0.)]— See Corrupt Practices, 1. B.S.O. 1897, ch. 7, sees. 8, 14 (7), 17 (1), Form 6.]— See Voters Lists, 1, ?, 3, 4. R.S.O. 1897, ch. 9, sees. 159, 161.] — See Treating. R.S.O. 1897, ct . J', sec. 161.] — See Corrupt Praciices, 4. R.S.O. 1^97 t'h. ; . J. 164 (2), 163.,-8p (Jui^ Prac- tices, 3 — Saving ClaU'E, 1. R.S.O. 1857, ch. 9, sees. 187, 188, 195.]— See Corrupt Prac- tices, 5. RS.O. 1897, ch. 10, sec. 13.] — See Costs, 2. RS.O. 1897, ch. 11, sec. 9.] — See Members. RS.O. 1897, ch. 11, sec. 48. — See Trial of Petition. RS.O. 1897, ch. 12, sec. 33.] — See Corrupt Practices, 5. RS.O. 1897, ch. 72, sec. 1, sub-sec. (g).] — See Corrupt Pr.vctices, 5. RS.O. 1897. ch. 223, sec. 86.J — See Voters Lists, 2. solicitor; Change of Solicitors — Right to Object to — Witlidrawal of Petition — Deposit as Secv/rity for Costs — Time to Apply to Substitute Petitioner.] — The only person who can complain of an order changing solicitors in an election matter is the former solicitor, and his right is a limited right; and the Court will not consider it unless as a part of a scheme to get rid of the petition. An ordinary voter has no status to attack the order. Even if the applicant here had the right to move against an order allowing the petition to be withdrawn : — Held, on the evidence adduced, that there was no irregularity in the application to withdraw. SernhU, even if there was reason to suspect collusion, the petitioner has the right to with- draw, but the Judge might order that the deposit should remain as security for the costs of a sub- stituted petitioner. The proper time to make an application to substitute a petitioner is at the time the motion is made to withdraw the petition, and the Judge's power is limited in that respect. If no application is then made, and the order for withdrawal is granted, the petition is out of Court and cannot be revived. Even if there was power to make such an order at a later period it should be applied for W'thin a reasonable time and full explanation of the delay given, neither of which con- ditions being complied with and II.] DIGEST OF CASES. 179 a delay of more than two months occurring:— Held, that the application here was too late. South Leeds (Dominion), 1. SUB8 T1TUT I0H OF PETinOHEB. See Petition, 1. — Solicitor. ^UmiOVS FOR COBEVPT PEACnCEB. See Corrupt Practices, 5. TEHAHTS. See Voters Lists, 2. TIKE. For Suhatitution of Petition- er,] — See Solicitor. TREATIHO. Treating a Meeting — Distinc- tion between Bribery and Treat- ing— R.S.O. 1897 ch. 9, sees. 159, 161.] — Where after a meeting of eleotora had broken up, an alleged agent of the respondent had treated at the bar of the hotel, where it had been held, a mixed multitude comprised of some who had been at it, and others who had not : — Held, (Maclennan, J.A., dis- senting), that this was not treat- ing "a meeting of electors assem- bled for the purpose of promot- ing the election," within sec. 161 of the Ontario Election Act, R.S.O. 1897 ch. 9. Per Maclennan, J.A., seeing that several persons assembled at the bar waiting for the meet- ing were treated before the meeting by the hotelkeeper, whom the respondent's agent had asked to treat " the boys " before himself leaving to attend a meeting elsewhere, and whom the agent afterwards paid, and that several who were treated after the meeting had been at the meeting, and then in com- pany with the respondent went very much in a body to another hotel, where they were treated again. Held that this was a treating of the meeting within the last mentioned section. Held, also, by the Court of Appeal, reversing the decision of the trial Judges, that such treat- ing was not " bribery " within R.S.O. 1897 ch. 9, sec. 159. Corrupt treating in its nature runs very close to bribery on the part of the treater, but the circumstances in which a treat can be said to be a valuable con- sideration within sec. 159 so as to amount to bribery on the part of the person accepting it, must be unusual. North Waterloo {Provincial), 76. See Corrupt Practices, 1, 4. TRIAL. Notice of — Sheriff's Costs of] — See Costs, 2. 180 DIGEST OF CASES. [VOL. •'•I TBIAL OF PETmOH. Judgment Within 16 Days of Session— R.8.0. 1897 ch. 11, sec. 4^.] — Notwithstanding R.S.O. 1897 ch. 11, sec. 48, pro- viding against the trial of a peti- tion d uring a session or within 1 5 days from the close thereof, when judgment iias been reserved after examination of witnesses and hearing and the arguments of counsel, the trial Court may give judgment and issue their certificate and report at any time whether during or after a session. North Waterloo (Pro- vincial), 76. UHCERTAIHTT. See Ballot, 2, 3. VOTERS. Alien.] — See Corrupt Prac- tices, 2. VOTERS LISTS. 1. "Resided Continuously" — Meaning o/.] — The provision of sec. 8 of the Ontario Voters List Act, R.S.O. 1897 ch. 7, that persons to be qualified to vote at an election for the Legislative Assembly must have resided con- tinuously in the electoral district for the period specified, does not mean a residence lie dvi in diem, but that there should be no break in the residence ; that they should not have acquired a new residence ; and where the absence is merely temporary, the qualification is not afifected. Where, therefore, persons resi- dent within an electoral district, and otherwise qualified, went to another Province merely to take part in harvesting work there, and with the intention of return- ing, which they did, ^heir ab- sence was held to be cf a tem- porary character, and their qualification was not thereby affected. Re Voters Lists of the Township of Seymour, 69. 2. Assessment made in pre- vious year — Qualification aris- ing subsequent to final revision of roll — Freeholders — Tenants.] — Where the assessment for a city, on which the rate for the year 1898 was levied and the voters list based, was made in previous year, the roll having been finally revised on the 2nd Decemb e r , 1897, freeholders, who were such between that date and the last day for the revision of the voters lists, were, under sec. 86 of the Municipal Act, R.S.O. (1897) ch. 223, and sec. 14 (7) of the Ontario Voters Lists Act, R.S.O. (1897) ch. 7, held entitled to be placed on the list ; and freeholders also who had parted with the property for which they were assessed, but had acquired other sufficient property, w^ere heM entitled to remain on the list ; otherwise as regards tenants, under similar circumstances, the form of oath required to be made by them [vol. II.] DIGEST OF CASES. 181 precluding them. Re Voters Lists of St. Thomas, 154. 3. Notice of Complaint— Loss of— Parol Evidence.] — A list of appeals, containing names sought to be added to the voters lists, was prepared, and a voter's notice of complaint in Form 6 to the Ontario Voters Lists Act, R.S.O. 1897, ch. 7, was signed by the complainant, attached to the list of names to be added, and handed to the clerk in his office within the thirty days required by the statute. When the list was produced by the clerk in Court, the notice of complaint was missing : — Held, that it was competent for the Judge to hear and receive parol evidence as to the form and effect of the notice in ques- tion and of its loss; and that, upon his being satisfied by such evidence that a sufficient notice of complaint was duly left with the clerk, the complaint might be dealt with. Re Voters Lists of Marmora and Lake, 162. 4. Notice of Complaint — Service on Clerk — Registered Letter.] — A notice of complaint, with list of names, was received by the clerk through the mail by registered letter, in due time: — Held, that sec. 17 (1) of the Voters Lists Act, R.S.O. 1897, ch. 7, had been complied with. Re Voters Lists of Madoc, 165. See Corrupt Practice, 5. WORDS. "Resided Continuously." ]- See Voters Lists, 1. WRIT. Issue of for Election. ]- Corrupt Practices, 5. -See