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32X

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.

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.

Name

OF Cask,

WllKRK RkVOHTKI).

Page

of Vol.

Aylesbury

Cose

(I«S(>),4 0'M.

&H.

59 ...

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

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

(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

CASES CITED.

[vol.

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

Inhabitants of Springtield v. Inhabi-
tants of Worcester (1848), 2 Cush. 52

Jacques Cartier Case (1878), 2 S.C.R. 246

Jenkins v. Brecken (1883), 7 S.C.R. 247.

24
62

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

.21,24, 26

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

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

ge of Vol.
.101, 106

101

, 124, 132

Q.B.
...169, 162

.. 40
24

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

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

162

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

.21, 24

. 169

88, 97

159

24, 77, 78
24

77,78, 89
40, 63, 136
.. 24

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

21,

24
24
86

78
78
78

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

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,

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<lraw. ' -i „iiiaiiu.\ in

th!'vilTi'\'^ t.l.m. was reason to s..s,H:.et colliusion. the petitioner has

nil ,'■'''•''•''''"'' ''"' ""• •'"•'^''' '"'^'''^ '"••''•• ••'" ' '■ -post
should remain as security for the costs of a suhslituted ■..-titionei

the' Ethe u/h""'" '"V'''''"'"1-" ' — '-^titutea p£;;:r s at
'"*- """ .•"'."X'tion IS made to withe raw theit'tition and the rnd,r,>-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,

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.

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 <U the hcitrinrf ; see also Rule 42.

All these provisions go to shew that the order for
substitution nnist bo made at the hearing of the motion to
withdraw, and that tlie power of the Judge is strictly

SOUTH LEEDS.

liinitcd ill tliis ivspcct. If no application is made at that
time, and an order for withdrawal is tjranted, the petition
i.s, in my. opinion, out of Court and cannot afterwards be
reviviMl.

But, furtln'i', if that view is incorrect, and there is
])ower to make an order at a later period, it should be
applied for within a reasonable time, and there should be
a full ••xplnnation of any delay; that is not done hei*e.

It appears that instructions were given early in July.
It is not shewn when the discovery was made of the order
to change the solicitor.

The order for withdrawal was made 13th July, after
due publication which came to the notice of interested
persons. The appHcanf does not nay that it did not come
to his notice in due time, and notice of the present motion
was not given until the 15th August, more than two
months after the order complained of was made.

On all grounds, therefore, the motion fails, and must
be dismissed wuth costs to be paid by the applicant,
Wni. P. Dailey.

G. A. B.

may
8:
been
the

that
ation

lor
on to
•ictly

DOMINION ELECTION.

SOUTH RIDING OF ESSEX.

DOMINION ELECTION.

Before Falconbridge and Street, JJ.

Sandwich, ;.'*^A December, 1801.

Charles Tofflemire, Petitioner.

Henry W. Allan, Respondent.

Snbiititntitiy New Petitioner — Jiirixdiction — Dominion.

The Court has no jwwer in a proceeding under the Dominion Contro-
verted Elections Act to sul)stitute a new petitioner unless either no
day has been fixed within the time prescribed bj' statute or notice of
withdrawal has been given by the petitioner ; and where a |)etition
came regularly down to trial and the petitioner stated he had no
evidence to offer, an application of a third party to be substituted as
petitioner uiion vague charges made on information and belief, of
collusion in the dropping of the jietition, which were contradicted,
and of corrupt practices, was refused and the })etition dismissed with

costs.

This election petition wherein Charles Tofflemire
was petitioner and Henry W. Allan respondent, and
which was in respect to the election of a member for
the House of Commons, for the electoral district of the
South Riding of the County of Essex, holden on February
26th and March 5th, 1891, came up for trial before Fal-
conbridge and Street, JJ., at Sar*dwich, on December
28th, 1891.

Osier, Q.C., for the petitioner.

Aylesworth, Q.C., for the respondeat.

It appeared that an order for particulars had l)een
made on November 13th, 1891, which required the same
to be given at least 14 days before the trial, in default of
which the petitioner was to be precluded from giving any

SOUTH RIDING OF ESSEX. 7

A evidence, but that no particulars had been delivered.

^ Counsel for the petitioner, however, stated at the opening

of the Court that he had no evidence to offer, and counsel
♦ for the respondent asked for judgment dismissing the

petition.

Thereupon Wigle applied upon notice served by
him, pursuant to special leave obtained on December
26th, 1891, on behalf of one Darius Wigle, for leave to
substitute the latter as petitioner in place of the present
petitioner, Mr. Tofflemire ; and contended that where no
evidence was offered at the trial in respect to a petition, a
new petitioner could be substituted by the Court. He added
that if the Court thought a petitioner could be substituted
upon material shewing that corrupt practices had been
indulged in he could, if he had leave, obtain such.

Street, J.: — You had 18 days in which to do that, and
you have not done it. It is after the Court assembles here
for the purpose of trying this petition that you proceed,
and surely it is too late to ask for delay.

Wigle : — After receiving an intimation that the petition
would not be carried on, I acted as best I could in the
way of obtaining information ; but it was very difficult to
do so.

Street, J. : — You might have got Mr. Tofflemire here,
at all events.

Wigle : — If your Lordship dismisses this application, if
there is power given to you, I would ask for leave to move
in Toronto to renew this application to substitute a
petitioner.

Falcoxiiridge, J. :— Both my learned brother and my-
self liave ruled, on other occasions, that we have Ao power
to substitute a petitioner, except in certain cases, either
where a day of trial was not fixed within the time pre-
scribed by the statute, which is not this case, or where

DOMINION ELECTION.

noticf of the withdrawal ol* the ]«'titi()n has been jjiven by
the petitioner, whicli is not this case. I do not see that it
would advance 3'ou at all to give such leave, if W(; had
powei- to <;ive it, because no Jud^e in Toronto could do
what you ask to have done.

'J'he case has come down for trial, solemnly fixed in duo
coiu'sc, with the proper notices given, and counsel, duly
authorized by the petitioner, announces to us that he has
no evidence in support of the petition.

An ap))lication is now made on behalf of a third per-
son, Darius Wigle, to be allowed, in some way, to intervene,
and carry on this en(|uiry. That application is supported,
HO far as appears before us, by some vague and general
statements made on information and belief that there has
been collusion in the dropping of the petition, and that
corrupt practices have jn-evailed to some extent in the

ridin<r.

Against that we have the positive assurance of the
counsel for the petitioner that there hos been no collusion,
or un«lei'standing or niisunderstandir g of any kind, in the
matter, and counsel for the respondent assures us that
there is no arrangement of any nature. Under those cir-
ciunstances, especially in view of the fact, as I have already
said, that we have no power here to substitute a petitioner,
we do not feel called upon, in the interests of justice, to
prolong the encjuiry, and we think the petition ought to
be dismissed with costs. '

Street, J.: — I (juite agree with my learned brother in
the lesult which he thinks should follow this application,
for the reasons which he has given, as well as for those
which I myself expressed during the discussion. I think
that the application of Mr. Darius Wigle should not be
entertained here, because no sufficient material has been
produced in support of it. It is evident from the state-
ment of Mr. Wigle, counsel for Mr. Darius Wigle here,

..>/■-.

SOUTH RIDINCJ OF ESSEX.

■ that it

wi! had

;oul<l do

d in due

iel, (hily

he has

ird per-
itervcne,
ppoite<l,
<(eiieral
jere has
md that
t in tlie

e of the
olhision,
1, in the

us that
lose cir-

ah'eadj'
titioner,
istije, to
mght to

other in
lieation,
3r those
I think
not be
as been
state-
le here,

- -ic:

■;S.
1

:!%^

that the pos'tion of matters has })een known to him since
tin- 1 0th of this month. Althoui;h that is the case, now.
on the 2>Sth 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.

PROVINCIAL ELECTION.

KINGSTON.

PROVINCIAL ELECTION.

Before Osler. J. A., in Chambers.

Toronto, Septemher J^iul, 1894.

Richard Vanalstine, Petitione7\

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.

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.

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.

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<l uml fth, IS94.

John' CiEoroe Whitacre, Pftitumc,;

James M. Sava(JE, Rcspomlent.

Petition — Serrice Out of Jurindiclioii.

A iKjtitioii to unseat u memltei' may be dulv servod out of tlie juiisdic-
tiou of the Court : and it is not essential that an application sliould lie
made for leave to effect such service, oi' for allowiiij^ the service so
made.

This was a motion made by tlu! respondent to set
aside the service ot" the petition herein, on the <;i-ound of its
havinjf In-cn served upori him out of the jurisdiction.

('. Sirabcy, for the motion.

Aylf'Hirortli, Q.C., contra.

September 4th, 1894. Osler, J. A.: —

The respondent moves to set aside the service of the
petition, on the ground that it was made out of the juris-
diction, while at Winnipco-, where •Iw happt'ned to be
during tlu- brief poi'iod allowed by law for giving notice of
the pre.sentation of the petition.

I have foinid no ease in the books in which the
question of service of an election petition beyond the
juriisdiction of the Court has been raised except the
Shelbwnie Case (1887), 14 S.C.R. 258. There the petition
in the Supreme Court of Nova Scotia was served on the
sitting member at Ottawa, in Ontario, pursuant to an order

PROVINCIAL ELECTION.

of Court yiviii^ leave to nerve the petition out of the juris-
diction. Tlie j)oint wjw not decided, but two of the judges
of the Supreme Court of Canada expresHed an opinion
that the judge of the Court below had |)ower to make
rules for service of a petition out of the jurisdiction.

In the case Ijefore us no application was made for
leave to eft'ect service in this manner, or to allow the
service which was made as good service.

I am however of opinion that the respondent's objection
fails.

What the Act requires (section 15) is that notice
of the presentation of the petition with a copy of the
petition should be 8(}rved on the " respondent " within the
prescribed time " as nearly as may be in the manner in
which a writ of summons is served or in such other
manner as may be prescribed."

The object of this is not to compel the respondent to
come into Court or to appear, or to enable the petitioner to
take further proceedings in the matter of the petition
consequent upon his doing so. It is simply to give the
respondent notice of its presentation, so that he may if he
will, defend it. The Court takes and acquires no juris-
diction over his person by reason of the service, and does
not by the petition or its service purport to make an
order upon, or give any direction to the respondent. The
case therefore differs in many respects from an ordinary
action in which, apart from statute, the Court has no
power to exercise jurisdiction over any one beyond the
territorial limits over which its jurisdiction extends.

Actual notice having been given to the respondent by
service upon him in the manner, or one manner, in which a
writ of summons is served, viz., by personal service, which
requires no confirmation or special order for its allowance,
I think that is all that is necessary, and that notice of
the presentation of the petition was well given. The
object of the service is, in my opinion, only to give notice of

WEST A LOOM A.

f the juris-
tlie judgcH
1" opinion
r to make
tion.
made for
allow the

I objection

the proceedinjifs, and the case of Credits GeruvdeuHe
{Um'ded) v. Van Weede (1H84), 12 Q.B.D. 171, where
Hervice of an interpleader smnnionH out of the juriHdiction
waH held good, supportM my contention, and ho also does
what is said by Lord Chelmsford and Turner, L.J., in
Drammmid v. Druviiaovd (18(56), L.R. 2 Ch. 32, 35;
Cookney v. Avdermn (1802), 31 Beav. 452, 468.

It is therefore urnit'c»'swiry to consider the other
answer made to the objection, viz., that by filing an
appointment of hu ajri'nt in the matter of the petition
after the service had ban made estops the respondent
from now attacking the service.

The motion will therefore be dismissed with the
usual costs.

G. F. H.

mdent to
itioner to

petition
give the
nay if he
no juris-
and does
tnake an
it. The
ordinary

has no
ond the

ident by
which a
i, which
owance,
atice of
1. The
otice of

J'ROVINCIAL ELECTION.

W EST W ELLI XG'J'ON.

PliOVIXCIA A ELECrriOS.

Before Rose axd MacMahox, JJ.

(JfKi.i-ii — J(niitary 15, IS'Jo.
T(iR(JNTi) — Junnary .iQ, 1S95.

Before the Cofrt of Appeal.

Present :— Hauaktv, C.J.O., Bckton, Owi.kk, Maci.knnan, JJ.A.
TuKoNTi), Jniii 5 (Hid G and Octolnr JO, JS05.

Thomas >[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 t<i the Election Act, in
respect to " the habit of ti'eatini:^," by .")S Vict. ch. 4, sec. '1\ (O. )

The election coiiipl.'iiiied of \V!is lield on tlie lOtli and
2()tli dtiys of Jinie, lcS!,)4. Tlie candidates were the
respondent and one Al)saloni Shades Allen. The fespon-
dent was declai'ed by the returnino' otiicer to have 'x-en
elected. The petition contained the usual eharoes (A
bribery and corrupt practices. Particulars were delivered
in the reo-ular way. The only charge contained in the
particulars necessjiry to refer to for the purposes of the
report wtis the followino-; —

WEST WKLLIN'GTON.

J.T.A.

'ffih!'.

lit' time of
■t.'iited the
lijft'il in hi!^

to tlt'tlt,

rLM|UeMtt'(l

(liL'W tlie
s(i as to

|)ii Ai't. ill

:o.)

hill ;ui(l

Icrr the

rcsjKiii-

■f hueii

Iro'es of

'livt-red

in the

of tlie

14. In ami about the month of June, 1894, at tlie
various places hercinaftei- nicntionorl, the said respomlfut
(li<l, directly and indirectly, <,dve and jjrovide, or cause to
be (jiven and pi'ovided, and did i)ay wlujlly or in pait the
expense incurred for meat, driidv, refreshment, or provision
for the persons hereinafter named and others, in (jrder to
be elected, or for the purpose of corrujjtly intluencino- such
])ersons to vote for the respondent, oi' to I'efi'ain from
votiujif ai^^ainst the respondent, at such election. The
places above referred to are, amon^- others : Hy man's
hotel, in the villaiie of Glen Allan ; Murners iiotel, in the
viilao-e of Cliffin'd ; Boyle's hotel, at Draj'ton ; Henry's
hotel, at Clitibrd ; CoUison's hotel, at Harriston ; Charles
Ai'mstrono-'s jiotel, >it 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<s and cigars at the bar.

J. C. Henry .said lie kept a hotel at Cliti'ord : Tucker
stayed there .scjinetimes : he first came there in December,
1893; he was introduced as the Patron candidate: on that
occasion there was a good deal of treating, and Tucker
paid for one treat; that was about the 27th December,
. 1893; he came there twice after that, once in April, 1894,

3 — VOL. III. E.C.

Jl>

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.

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,
itro<luced
tlie same
" were
ed : tliere
votes on
:ics were
oil these
e, and a

-le's hotel
: on two
nie there

were six or seven present : the second only two or three ;
lu'ver saw liini treat before or since the election.

Owen O'Boyle .said he kept a hotel in Drayton, and
knew Tucker : never .saw him in the hotel before January,
\ M>4 : 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<lidate of the Pati'ons: Tucker
tiMik dinner at the liotel (he day after the meeting: after
dinner lie came to the bar and ])aid his bill : there were
fom- or ti\e peoi»le in the Itai'. and he treated the boys
aftei' he settletl his bill : he gol aeipiainted with them and
called them up: they knew he was the Patron candidate;
.some had votes.

(Seorge Wil.son .said he reinendx'red seeing Tucker at
Heiman's hotel before the election, on the 25th May or
about that time : he came and met witness upon the road

PROVINCIAL ELECTION.

outsido the hotel, shook liands, tuid witiicsH went in with
liiiii : 'I'uckci" did not ti't^at ; Heiniun askcfl witness wliat
he would luive, and witness liad a f(lass of beer : Tuckor
nii*;"ht have paid for it before or after, l)ut witness did not
see him do so : knew Tucker was the l\itron candidatf.

()leor<;e Baldwin, a voter in the tc)wnship of Peel, said
he saw Tucker at Heinian's hotel before the election ;
could not say Just when it was ; could not sa\' whether
Tucker treated oi- not : there was treatino- while Tucker
was there, and witness thought Tucker " called on the
drinks ; " knc.'w Tucker was a candidate : there was no
talk about the election : Tucker said " come up ami have a
ci<(ar : " there may have been foui- or live present : never
knew of Tucker treatino- before or since.

J. P. McMillan said he was boardin*;' at Dowd's hotel
in Arthur durintj the election ; when Tucker came to that
villat^e he remained in that hotel ; witness was present
when treatinj^ was goii^ig on ; had seen Tucker treating
between the time he became a candidate and the election ;
he treated witness several times ; witness remembere«l two
occasions, both in May; about ten persons were present on
each occasion ; some were electors ; knew in May that
Tucker was a candidate.

Thomas Cumniings said he was bar-tender in Dfjwd's
hotel in Arthur during the election ; saw Tucker there
several times between the 11th May and the time of the
election ; Tucktjr was talking politics ; saw Tucker in the
bar; never saw him treat: "the boss" served drinks in
the back room, when Tucker was there, and the drinks
were paid for, but did not know who paid.

No witnesses were called for the respondent.

/. K. Kerr, Q.C., E. F. B. Johnston, Q.C., and K A.
Grant, for the petitioner.

LaidUnv, Q.C., and /. Bichaell, for the respondent.

WEST WELLINCJTOX.

11 with
;s what
Tufkcr
dill not
late.
(L'l, said
li'Ctiou ;
vliether
Tucker
on the
was no
[ have a
: never

Is hotel
to that
present

treating

■lection ;
1 two
sent on

ay that

)owd'.s

there

of the

in tiie

hnks in

drinks

d R. A.

iiit.

Kosi:. .1. (at the conclnsion of the argniueiit ):

The i)art of the cast- under this head is sufficiently
cli'ar : the evidence is abundantly strong. The scojie and
thr iiilfiit of the statute and the law on the point may be
i-xpit'ssed ill the language that we Hiid in Rogers on
Elections, Kith ed., vol. 2, p. -S25 : ''The statute does not
say that it shall depend on the amount of drink. The
smallest (luantitv i^iveii irlth tin' iiifeiifion will avoid the
election. Ihit when we are considering, as a matter of
fact the evidence to see whether a sign of that intention
does exist, we must, as a matter of common sense, see on
what scale aii<l to what extent it was done : ' per Black-
burn. .[., WiiUlngford ('<i.sr (1800), 1 ' ''^\ & H. at p. 50 ; see
also Wcstbury ('use (18G0), ih. 50, per Willes, J. ' Whenever
also the intention is by such means to gain jiopularity, and
thereby to attect the election, or if it be tiiat persons are
afraid if they do not jirovide entertainment and drink to
secure the strong interest of the publicans, and of the
persons who like drink wheiievei- the}' can get it for
nothing, they will become unpopular, and they, tlu'refore,
jiioviile it in order to affect the election . . , . then I
think that it is corrupt treating : ' WdUliKj/onL stijjra
at }). r)!! : Mnlbitr (IMTO), 2 O'M. A: H., at p. 22. And see
Ln,i(h (1880), :j OM. .V H. 1()1."

The language of the statute which requires considera-
tion is: "No candidate shall corru|'ly, by himself or by
or with aiiv perscjii, or b\- anv other wav oi' means on his
behalf, at any time either before or during an election,
directly or indirectly give or pr(ni<le, or cau.se to be given
or provided, or shall be accessory to the giving or provid-
ing, or shall pay wholly or in part any exjieiises incurred
for any meat, drink, I'efreshment or provision to ov for
any person, in order to be elected, or for being elected, or
for the purpose of corruptly iiiHuencingsuch person or any
persons to give, or refrain from giving, his vote at the
election :" K.S.O. 1887 ch. 9, sec. 154.

88 l'ROVIN(JIAL ELEcmoX.

The wordu to be coiiHiderefl in connection with this
char<:je ai-e " in order to be elected."

We find that this can(h(hite, Htartinj; out as a candi(hite
to meet the electors, and in order to be elected, chose to
treat and pay for drinks at the various bars in several
villajj^es and places in the electoral district. This was
done not simply in fjood fellowship, but 1 take it for the
direct purpose of advancing his candidature and securin*;'
votes. He was not a man whose business it was to j^o
about visitintj his fellows, and who had a hal)it of ti'eating,
or what niio-ht be called a habit. He was startin<^ out for
a particular purpose, and it is a sio-niHca}it fact, as stated
by a witness, that in one place after treatin<; at one hotrl
he desired to l)e introduced as a candidate at a hotel across
the road, where he was not known before, and that he
followed up the introduction by treating:;.

We have no contradiction of the statements made as to
the fact of the treating, the manner of tivating, and the'
position in which he placed himself before those he was
treating.

He appeared at these places simply and solely for the
purpose of advancing his election and securing votes, and
I think we should be fortjetful of the evidence and the
effect of the evidence, if we should find the fact to be
other than it appears to me, namely, that for the purposti
of being elected and to advance his candidature during the
election, and secure votes, he did corruptly give and pay
for drink and refreshments. Speaking for myself I think
the charge has been sustained, tlie candidate has lieen
guilty of a corrupt practice, and the election, therefore,
■ould be voided.

>! .:>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<H<lato
•hose to

Hl'VCl'ill

liis was
i for the
seeuriii<,'
iH to i;<)
treating-,
r out I'or
IS stated
(lie hotel
el across
that he

ule as to

and the'

he was

for the
)tes, and

and the
ct to Ije

purpose
irino; the

and pay
■ I think

as Vjeen

lerefore,

ther has
Middle-

sr.r Cum,' (1883-4). 1 Kloc. Cas. 250, or the Xorfh Middlrsrx
^r^sv'(1875), H.K.C. 37(). In the latter case the successful
candidate was a drover. His practice was almost universal
as to treating'. It appeared in that case that, aithoui^h
considerabhi troatinj^ was done by hini during- the time he
was a candidate, it i.i no way exceeded what he had Vjeen
accu.stomed to do prior to his candidature and wdnle carrying
on his usual business of drovt^- and cattle dealer. It was
pointed out in that case, that tiie position which he held
as a cattle dealer almost necessitated his treatin^f when he
went to fail's and other places. The Court came to the
conclusion that the ti'eatin<; not beini; in excess of what
was his custom, it could not be safely said he was guilty
of a corrupt act, or was doing what he did to influence the
election.

Here, as already stated by niy learned brother, the
candidate, the respondent, was a farmer. He had not
been accustomed to treat, had not been accustomed to visit
places where treating was going on; and, as appears b}' the
evidence, he was never known to treat l^efore his nomina-
tion b\' the Patrons as their candidate. One cannot look
at the number of occasions and the people who participated
in his hospitality in that way from the very inception of
his canvass, without reachiui; the conclusion that he was
treating, and corruptly treating, for the purpose of influenc-
ing the electors in the election, and to secure their votes.

I think he is guilty of a corrupt practice, and the elec-
tion for that reason must be voidi-d.

The respondent apjjealed.

Uohinson, Q.C., and Luidiaw, Q.C., for the appellant.
The treating was before the issue of the writ for the elec-
tion, and therefore is not within the Act at all. The
petitioner must shew that the treating was so unusual as
to lead to an inference that the intent was wrouirful ;

I'KOVIXCIAL KF.ECTIOX.

intTo customary treatiii*; is not cnoui^h : Xorfh Onfavio
f'tisr (1884), 1 Eloc. Cas. 1: Aijle-shiiry Case (IHHi)), 4
0"S\. .V H. 50 ; Xorwich Cune (188()), ih. at p. !)1 : Jacques
Carfirr Cxse ( 1878), 2 S.C.R. at p. 240; RochMer Case
(18!t2), 4 O'M. .<: H. 150. Tlunc muHt he the corrupt
intent : South Norfolk I'asH (1875), H.E.C. at p. 0(59 ; North
Midillesex Case, ih. at p. 382; Glengarry Case (1871), ib.
8: Kingston Case (1874), ih. at p. 035: London Case
(1875), i6. 214: East Elgin Case (1879), ih. at p. 772;
Wcllantl Case (1871), lb. 47. There inunt he something '
of profusion or extravagance, and something to sliew
solicitation. There were no unusual or suspicious circinu-
stances in tliis case.

J. K. ':err, Q.C., E. F. B. Johnston, Q.C., and R. A.
a rani, for tlie petitioner. The enactment now in force is
diffeient from that in (juestion in several of the cases cited,
and diti'ers also from the English Act, Mhich is wider as to
the persons included : but our Act is much wider as to the
time and natiu-e of the offence. The appellant was clearly
a candidate within the meaning of the section at t\\i time
the treating was done: Rogers on Elections, 10th ed.,
vol. 2, p. 289 ; SligoCasf (180!)), 1 O'.AF. Ar H. 300 : Stroud
Case (1874), 2 O'M. & H. 179. An act committed with
intent is fatal, no matter at what tinui done : YongJial
Case (1809), 1 O'.Al. & H. 291. The evidence shews the
candidate's intiMition to ingratiate himself with the elec-
tors, and that makes the act corrupt within the meaning
of the section: Rogers, lOtli ed., vol. 2, p. 325. "Cor-
ruptly ' has been defined to mean " with the intention of
producing an effect upon the election : " Wallivgford ,
Case. 1 O'M. & H. at p. 59 : see also Xorfh Xorfolk Case
(1809), ih. at p. 242 ; AraUow Case, 2 O'M. & H. at p. 22 ;
Louth Case,^ O'M. & H. Kil : Hereford fV/.se (1S09), 1
O'M. .»c H. 194: Carricl-frrgns Case (1880), 1 O'M. & H.
at p. 91 ; Bodmin Qase (1809), 1 O'M. & H. 117. Where
the di-ink is given at a time when there is no other pur-

WKST \VKLLIX«iT()\.

post- ill vii'W. tilt' iiifrn-nct' must he <li!i\vii that there was
thi' iiitfiition. This man was, hi'sides, not in the habit of
ririiikin^' or trfatin<; : it was a complete clian^^c from his
ordinal y hahits. Then- are direct findings of fact by the
trial .ludj^es which shouiii not he iiiterfeicd with. It was
not the kind of ti'eatin;^ which arises merely from ^ood-
felhtwshij). The (.'lectors were treated in lar;,'e nnmberH
and iinliscriniinatelv. The ehane-c of conduct after the
issue of the writ is a circumstance that e;oeH to shew the
*a]i)M'llant's own idea of the impropriety of his conduct.

RuUliisini . in reply. It is not a mert; (|Uestion of
whether there- i^l cvi^leiice to sui)port the tlndin*;-. The
Court is lK)Und to consider the evidence for itself : North
Perfh CoMc (18!)2), 20 S.C.R. IV.M. The possibility of any
vote bein;; iiiHuenced by the treating; Juis not been sliewn.

Cur. adv. valt.

October 2'J, 181)5. Hagahtv, C.J.O.:-

ition of
Ill/ford

1>. 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.

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<l with a due i-e<^ard to the
sei'ious effect of the judtjment as to the respondent.

I tind iji'eat ditKculty in acceptini; the appi^llant's ur/^u-
nient that there is no evidence to M'arrant the tindin;,^ that
the treatintj was coirupt. I fully atjree that "corrupt " is*
the " key note," as it has been called, of the penal conse-
quence of the act.

The statute, in its laudal)le endeavour to secure purity
of elections, pi'ohibits tlie doin<j of certain acts. We are
all aware of the gross mi.schief and expense incun-ed at no
very distant period in the furnishin<( of meat and driidv
by candidates or their a<;ents. The Lej^islaturt- declar(!s
that the act mu.st be done corrupti}' — that is, with a
corrupt intent. The existence or the non-existence o^ such
intent has been usually the great contest in every case in
which " treating " has been proved.

There is a very fidl summary of cases up to \HHO ui
the Louth ('asc, 8 O'M. k H. at p. 163. One great Judge
said that the word " corruptly " means " with the object
and intention of doing that thing which the statute intenfls
to forbid : " another, " with the intention of producing an
effect upon the election ; " again, " for the purpose of being
elected, with an intention to produce an effect upon the
election. ... I thiid< whenever the intention is to
gain popularity and thereby to affect the election : " again,
" the man who gives drink, if lie gives it because he is
afraid of becoming unpopular, and therefore practises it in
order to affect the election, then it is corrupt treating."

The subject is discussed in Leigh & Le Marchant's
Guide to •Election Law, 4th ed., p. 26, and in Rogers on
Elections, 15th ed., vol. 2, p. 784.

WEST wki.mn«;t(>\.

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<r."
archant's

logers on

4
I

There was evidence hefore the .lud^'es I'roiii which,
uncontradicted, they iiii;,dit fairly draw th(< inference that
the various acts of treating; by the respoiuh'iit were done
witli a view of intliiencin;; the election in his favour- -to
fiii'ther his election — to <;ain po])nlarity. and thereby
atl'ect the election, etc., etc.; and therefore the prl iiiii fucie
conclusion that the acts were done with a corrupt intent.

There was no rehuttint; testimony to the effect that
this habit of treatiii<; persons ])resent in bar-rooins was an
ordinary custom of the respomlent, <;eiierally adopted by
him, and not assunuMl as .soon as he beoan to a])pear in
public |)laces as a candidate for Le<,dslative honours. If
this had l)een found, it would, doubtless, ha\'e been a
strong; ar^^niment ai^ainst drawing; the conclusion that his
intent was corrupt in the sen.se established by the election
ca.ses here and in the old country.

As my brother Ro.se points out in his judgment, it
.seems impossi))le on the evidence to look on his atts of
treatint; as matters unconnected with his candidature. I
cannot look u{)on them in any other li^dit than that in
which the trial dudm's rei>;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

'"^

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
i<j;'h p)-(>ot'
pertinent
lie otlu^r
whether
influenc-
it would
upporter

nsidered
icli more
Midland,
corrupt,

n election
s that the

WKST WKLIJNOTON. 29

should he JileMMl, ,sul)jeetin;r the party to n penalty hut

not sutiicient to avoid an election.

Mr. .Justice MfU'Malujn has poinfrd out in his Jud;,niient

tliat th.' huhit of the candidate in tin' ca.se referre(| t,> was

merely ,i pircv ,,f evidence which tenrled to ne^riitivc the

corrupt intent ; and that, 1 trn.st, is .still the law.

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-<l ; OsLER, J.A., dissenting.

E. IJ. H.

PROVINX'IAL ELECTIOK.

SOUTH RIDING, COUNTY OF PERTH.

PRO VI NCI A L EL EC TIOX.

Before Burton and Osler, JJ.A.

Mitchell, Janiimy SOth.

February :.'vd and 7th, 1SU5.
Stratfori>, February Sth, 1S95.
Toronto, March ^nd, I'^'Jo.

William Malcolm, I'etif loner,

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.

— 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. -

(Jf<l('r, Q.C., for the petitioner.

Aylesworth, Q.C., for the respondent.

In the course of the trial the following judgments were
♦lelivered at Mitchell : —

BiHTox, J.A. : —

In reference to these charges that affect a large
number of persons who were residents of the district at
the time of the voting, and also a number of aliens, we are
of opinion that actual knowledge of the facts disentitling
the vottn-s to vote must be established, although at first I
entertained a different opinion. It is not sufficient to rely
on the knowledge which the law will in many cases impute
to parties tnider such circinnstances. In other words, in
construing .sec. 1()0 of the Election Act, R.S.O. 1887, c. 9,
" knowing he has iio right to vote " nmst mean that the
party has actual knowledge that he has no right to vote.
It lias })\i/,zled me a good deal, I must confess, and it is only
receiitlv 1 have come to the conclu.sion that that is the
])roper interpretation of the statute. If we are wrong, we
have the satisfaction of knowing that another C-ourt, havintr
more leistu'e and oi)portvuiity to consult the authorities,
can set us I'iglit. In this case where many parties —
respectable men, respected by the conuniniity among
whom they have lived foi' years and voted for years —
voted under the impression that they had a rigiit to vote,
it wouM be a monstrous thing, it scmiis to me, that they
should be found guilty of a corrupt practice merely
because the law would impute notice to them, thus placing
them in the same catetrorv (I was iroinfr to sav as
criminals, and I do not withdraw the word) with persons
guilty of the petty offence of receiving a few cents for

If"

1*R( )V1 NCI AL ELECTION.

their votes. There is the additional reason that the
parties are made liable to a penalty of !?100. It seems to
illustrate how shocking- it would '.<e if persons, like some
of these respectable men, could be sued for a penalty of
SlOO when they liad no intention of infringin<^ the law.
We have come to the conclusion in this case that there
must be actual knowledge, before a party can be found
guilty of a corrupt practice, of his not being entitled to
.vote, a very different thing from imputing guilt to parties
who are innocent of any intention t(i do wrong. To
constitute such a practice a wilful illegal voting with
knowledge is, in my opinion, necessary. It is scarcely
necessary to say that all these votes are illegal, and would
be struck off' on a scrutiny-.

OsLEH, J.A. : —

I concur in the judgment of my brother Burton.

The cliarges of corrupt practices we dispose of this
morning are those under sec. IGO of the Election Act
against persons, who are agents of the respondent's, \oting
or inducing other persons to vote knowing that they had
no right to vote at the election, the particular discpialifica-
tion being either non-residence, under sec. 7 of the Act,
or alienage. In all these cases there was the prima facie
right to vote, the name of the voter being duly entered on
the voters' list.

Section 7, however, defines the qualifications of those
w^ho may vote ; and among others, the voter nuist of
course be a subject of Her Majesty by birth or naturaliza-
tion. He must also be " not otherwise by law prtnented
froni voting," and therefore he is not entitled to \ote if he
has not resided within the electoral district for the time
and in tlie manner therein provided before the election.

Now, in the cases we are considering, the votes may he
said to liave been undoubtedly bad on one or other of these

COUNTY Ol" I'KHTH.

ihat tlie
.st't'ins to
ikt' some
Mialty of
the law.
lat there
oe found
ititled to
,0 parties
To
ith
Hcaicely
11(1 would

>uo-.
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.

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

I'KOVIXCIAL KLECTJOX.

absence of the inl'onnation which would be conveyed to his
inind hy the reu<lin<;" over to him oi" the oath, it was most
natural that he shouM believe himself entitled to vote, tind-
in<^ his name on the voters' list. In all cases of this kind,
also, I saw no reason to suppose that the voter was actint^
otherwise than in good faith and not knowing tbat he
was not entitled to vote.

The only case on which judgment was reserved was
one opened at the conclusion of the sitting of the Court at
Mitchell, and closed at its adjourned sitting at Sti'atford
on the 7tb ult. This was a charge, No. T-S in the
particulars, of 1 , ♦^eams by one Dougherty, an agent of

the respondent, (i conveyance of a voter tu the poll.
It was proved that Dougherty did hire a team on the
polling day fur tlie purju-s"* of conveying a voter to the
poll, and that it was u.seii for that purpose. The only
question seriously in dispute was in regard to his agency.
He was not a member of the Protestant Protective A.sso-
ciation or of the Patrons of Industry. Had he been, I
should have been disposed to think that agency was made
out, having regard to the position taken by those bodies
with reference to the respondent's candidature and to their
own internal regulations which went far to make it com-
pulsory upon their members to support the candidate of
their choice. Dougherty was president of the local Con-
servative Association for Mitchell, and after Race, who was
a candidate in the Liberal interest — though an opponent
of Ballantine, the party nominee — had withdrawn, he
canvassed two or three votes in the interest of McNeill, to
whom also he gave his support — more, I think, because he
desired Ballantine's defeat than because he wished McNeill
to be elected. There was one interview or meeting be-
tween himself and McNeill during the campaign, but it is not
shewn clearly either that McNeill himself or anj^ accredited
agent of his knew that Dougherty was working for him
or canvassing. The fact that McNeill was not called as a

COrXTV OF I'KHTH.

;c(l to lii.S
wiiH most
/oto, tiixl-
this kind,

•as !U'tin<^

that

ii'ved was
! Court at
Stratford
'■i in tlie
II aiient of
> 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

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 <lo I tind that Dougherty or other members
of that party attended the res{)ondent's connnittee, loosely
organized as that body was. Apart from the evidence of
Hoyle. which, if accepted in its entirety, would bring
agency home very closely, there is nothing tangible except
the isolated acts of canvassing two or perhaps three voters,
lioyles e\ idence is contradicted b\- Dougherty, and that is
all I can say al)out it, for they both seemed to me to be
e(|ually I'espectable men. I have not overlooked the fact
that Douglieity seemed to know where to send a person to
obtain a scrutineer's authority, and it was fairly ai'gued
that this was a strong indication undei' the circumstances
that Ik' was moi'e in the confidence and counsels of the
res])on(ient's party than he was willing t<j admit, and there
has undoul)tedly been displayed the most astonishing
forgetfulness or ignorance on the part of Dougherty and
othei-s (if facts which it might be thought they would
ha\e been familiar with. There is much to raise a ca.se of
suspicion, but in a (pie.stion of imputed agency the facts
ought t() Vje such as lead one to a not doubtful inference.
1 think they stop short of that in the present case. All
the othei' cliaiges have failed aftei- a })rolonged and
exhaustive enciuir^-. The election appears to me to have
been conducted fairly, and to be as free from the imputa-
tion of cori'upt practices as any that I have ever tried. I
think there is nothing in any other part of the case which
requires us to press the evidence against the respondent on
this charge. If we found it proved, we should not avoid
the election on that account, and I am therefore, on the
whole, in favour of leavinj; it to .share tlie fate of the

PROVIN'CIAL ELECTION.

other 250 charges, by (liHuiiHsiiii; it. Di.sini.s.sinfj it, \vu
dismiss the petition, and think it ouylit to be witli costs.

Burton, J.A., concurred.*

* The tniin conveying the Jiulges, otticial.s, and counsel on tlieir
return, on February 8th, 1895, to Toronto after the above tiial, was run
into by another, and the Registrar, Mr. Frank Josei)h, and tlie re|M)rter,
Mr. J. S. Monaghan. were killed, antl many of the records of the pro-
ceedings lost in the tire which resulted from the collision. — Hep.

A. H. F. L.

WEST ELGIN. (No. 1.)

PROVINCIAL ELECTION.

Before Mr. Justice Maclennan.

Toronto, March 10, ISUS.
April 1:i, 18HS.

Ballot papers — Markimj of — Dirisioii of — Portion reiiiored — Mftrkix'/.i'imc

If a ballot is so marked that no one looking at it can have any doubt for
which candidate the vote was intended, and if there has been a com-
pliance with the provisions of the Act, according to any fair and
reasonable construction of it, the vote should be allowed : —

Helii, that the dividing lines on the ballot between the names of the
candidates, and not the lines between the numbers and tiie names,
indicate the divisions within which the voter's cross shoidd be placed,
and the space containing the number is [)art of the division of the
ballot containing the candidate's name, and that votes marked by a
cross to the left of the lines between the numbers aiul tiie names were
good.

Held, also, that a ballot, from wiiich a portion of the blank jiart on the
right-hand side had been removed, leaving all the printefl matter
except a jtortion of the lines soi)arating the names, l)ut wiii(!ii was
proi)erly nuirked by the voter, was good.

Ilfld, also, that l)allots marked for lioth candidates ; and a ballot marked
on the back, although over a candidate's name, were [H'operly rejected.

Held, also, that certain ballots with other marks on them besides the
cross were good or bad under the .cii'cumstaiu;es of each case set out
in the re|)ort.

Held, also, tiiat a ballot, having the name of a candidate marked on its
face in peiu;il, in addition to being projterly mai-ked for that ('aiididate,
was good ; that a ballot with two initials on the back as well as those
of the de|)uty returning otHccr was good ; that a ballot with the
name of a voter on the back w^as bad ; and that ballots with certain
peculiar crosses nuirked thereon were good.

WEST EUilS.

1^ it, we
1 costs.

iel on tlieir
iul, was run
lie repoi'ter,
of the pro-
liep.
H. F. L.

irkhiij s'lmf.

V (

loubt for
leen a coiu-
fair and

nies of the
tlie luunes,

l)e phu.'ed,
on of the
iked liy a

lines were

lart on tlie
efl matter
wliioli was

)t marked
y rejeeted.
)esides the
i^e >?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.

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

WEST ELCIN'.

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

u-5<l<i\il»t.il right to vote, and who desirt'd and inttMulc i
aii«i t iidtjivourod to do so, have nevertheless failed in their
attini]it.

'!'h( rr aro two methods of marking the ballot allowed
by strtiuii I O.'J. The cross maybe pJactMJ at the right-hand
side iijiiKtsiic to the name of the candidate iiitcndt'd to be
votrd for. oi' it may be placed in any other place, within
the division containing his name. There are i-eally not
two aht-rnativt! methods, because the second method in-
cludes the tirst. Ai'e these ballots marked within the
division containing a can<lidate's name :* If we say, look-
ing at the ballot which was here usi'd.that the name of the
candidate is in one division luul his nund)ei' in another,
then {\u'%i- marks are not in the division containing the
name. Imt in that containing the nund>er. 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<rht to left, with as
many divisions as there are candidates.

I think those are the divisions intended by the statute,
and that the divisions containing the numbers are mere
subdivisions of the divisions containintr the names. In

i\ — vol.. III. K.C.

I'KdVIXriAL EI-ECTION.

otliiT words, it in the Hanie (livision of the ballot paper
wliich contains each candidate's name and number.

It would be a stran<;(! construction of the statute which
would hold that on a ballot from which the innnaterial and
useless upri^jht lines were omitted, a cross near the lumiber,
or even to the left of it, wouM \w }.joo<l, as it clearly would
be, but that on a ballot containinj^ those lines a cross so
placed would be Iwl. And yet a ballot in either form
woidd be j:;ood, and mi«(ht be used with propriety in any
election. I think a construction leadinj; to such a result
oujjht not to be adopted, if it can Ix; avoided.

In my opinion there is a very plain sense in which, not-
withstandintj the uj)right line, the space containing the
luimber may be regarded as a part of the division of tlie
ballot containing the eandidat<''s name, and then^fore I am
bound to hold that it is s(>, 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

^;>,'

WEST E..IJIN.

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<l thereby to disfranchise the voter who
has in every respect marked his ballot distinctly and
properly: In /'- Tlioriiharij Dirinioii <if (flou<rsf('i\sliire
Ehi'lion h'iitlov ( IHH()), 10 Q.B.I), at p. 75.'}. Sec. 103
reipiires the voter to mark and to fold and to return to
the deputy returninjr otticer, the very ballot paper which
has been ijiven to him, and, by sec. 105, no person who
has received one is to take it away out of tiie j)olHn{j
place.

It mij.(ht be argued tliat he is recjuired to return the
hole ballot paper, and not merely a part of it, and that the
uhibition of takin«j it away extends to every part of the
pap(;r. It may perhaps be inferred from the fact that the
deputy retinnin<; officer refused to count the vote, that he
did so because he knew he had not (^iven out any ballot paper
so nuich smaller than all the others as tl»is, and therefore that
it was the voter who liad torn or cut a piece ofi" it. Hut
for that, it would be an assumption that there had been
any part removed, or if there had, that it had been done
by the voter, or that it liad not been in that condition when
*,dvL'n to ^'iin. It is still a perfect ballot, properly marked,
and it is only by compaiison with the (»ther ballot papers
that the inference can be drawn that any part of it had
been removed.

Now, sec. 100 seems to be very material to this ques-
tion. I'hat provides for the case of a voter sj)oiliiij,' liis
paper, and it is only when it has been dealt with so "that
it cannot be conveniently used as a ballot paper," that it is
spoiled and ought to be delivereo up and a new one pro-
cured.

PROVINCIAL ELECTION.

This voter may, by inadvertence, liave marked it
wront^^ly in the iirst place, and immediately perceiving
that, may have torn or cut off' the margin on which he had
placed his mark. He tlien finds that it can still be con-
veniently used as a ballot paper, and he does make use of
it. I think sec. 109 warrants tho conclusion that he
might do so.

This ballot is not like that which was before my
brother Osier in the West Huron case,* in which a part was
torn off", and wliich was disallowed by him. In that case
the part torn oft' was an essential part of the ballot paper,
namely, that on which the printed number had been.

I think the proper conclusion is that this ballot ought
not to have been rejected, and ought to be counted, for
MacDiarmid.

Eight ballots were (juestioned which appeared to be
marked for both candidates, Nos. JicS, 7070, 8573, 8412,
8509, 85G0, 85G0, and 84G8. The learned Judge rejected
the first seven as void, and allowed the last for MacDiar-
mid. 1 think he was right as to all but the last : and as to
those I affirm his decision. But I think lie ought to have
disallowed No. 84G8 as well as the others, and for the same
reason.

No. 8519 was marked on the back over MacNish's
name. I think it was rightly disallowed: South Wentivorth
(1879), H.E.C. at p. 536.

Nine Vmllots were questioned as having other marks
thereon besides the proper cross. These were Nos. 732,
3484, 394G, 4858, 5350, G5G4, 7735, 8508, and 8491.
I think 732 was properly allowed for IVlacNish. 3484
was well marked for MacDiarmid, whose name was upper-
most on the paper, and there were, besides the proper
mark, two other small crosses near the upper margin of
the paper outside of tlse hue. It was disallowed by the
learned Judge, but I think that was wrong, and that it
should be allowed for MacDiarmid.

* Post p. 58.

WEST ELOIX.

3940 and 4858

rked lor MacDij

(l.biit

re both marl

there was a strain lit stroke on MacNinh's division. The
learned Judge disallowed them, but I think wrongly; they
should be allowed for ^lacDiarmid.

5350 was well marked for MacNish, but in MacDiar-
mid's field tiiere was also a cross, but carefully obliterated
with a pencil. I think it was rightly allowed for MacNish
by the learned Judge.

6504 and 7735 were allowed, tlie first for MacDiarmid
and the other for MacXish, and I think rightly.

8508 was well marked for AfacDiarmid, but with tw(^
obscure lines opposite to MacNish's name, h'ing verj'^ close
together, almost coincident. It was counted by the deputy
returning officer, but rejected by the learned Judge. I
cannot say the lines do not cross each other, and therefore
I cannot disturb his finding.

No. 8491 is like the last in every respect, and was
rejected both by the deputj'^ returning officer and the
learned Judge. I cainiot say the}' were wrong.

Four ballots were (questioned for having names or in-
itials upon them other than those of the deputy returning
ofKcer

No. 1300 has the name, "MacNish," on the face in pen-
cil in that candidate's division, as well as a proper cross.
It was rejected by the learned Judge. I think it should
have been allowed. I am unable to see how the voter co?/ id
(not might possibly) thereby be identified. Civeneester
(1893) 4 O'M. & H. 196 per Hawkins, J.

No. 7369 ^as well marked for MacNish, but the words
"Mr. MacNish, West Elgin," in pencil on the back. I think
it was properly allowed by the learned Judge.

No. 7509 was properly marked for MacNish, and had
the initials, " D. F.," on the back, as well as those of the
deputy returning officer. It was allowed by both the
deputy returning officer and the learned Judge, and I
think rightly.

X-

PROVINCIAL ELECTION.

No. 7582 was properly marked for MacDiarmid, but
had the name, "John Cains," in pencil on the back, besides
the initials of the deputy returning officer. It was re-
jected by both the deputy returning officer and the
learned Judge. It may have been because there was a
voter of that name on the list. I cannot say it was not
rightly rejected.

There were three cases of alleged imperfect and doubt-
ful crosses. Of these, 58G7 and 7165 were, I think, rightly
allowed for MacNish. The first was a sprawling sort of a
cross, but a cross nevertheless. The other was a cross, one
of the lines being indistinct at and for a very short
distance on both sides of the intersection, but still quite
visible.

No. 6145 was an unusually large cross, the arms ex-
tending into MacDiarmid's field, but the intersection wholly
within MacNish's division. It was rejected both by the
deputy returning officer and the learned Judge. I think
it should have been counted for MacNish.

The remaining ballot is No. 8176. The learned Judge
thinks this ballot was found in the spoiled ballots envel-
ope, but he says that looking at the ballot paper account
and all the documents which were before him, he thinks it
was placed in a wrong envelope by mistake, and he allowed
it. It is well marked for MacDiarmid, but it is like No.
6350, mentioned above, in having a cross in MacNish's
field, with evident obliteration marks over it. I think the
learned Judge riglitly allowed it, if it was not a spoiled
ballot. I have no means of reviewing his conclusion that
it was not a spoiled ballot, inasmuch as this appeal being a
limited one, the Act does not authorize the transmission to
me of anything but the ballot papers, which are the subject
of appeal, together with a notice of appeal and a certificate
of the learned Judge's findings.

The result is that I allow for Mr. MacDiarmid the follow
ing ballots, which had been rejected by the learned Judge:

WEST ELGIN.

Nos. 117, 3484, 394G, and 4858. I disallow No.8468, which
had been counted for him, whereby three votes are added
to his poll.

I allow for MacNish Nos. 6145 and 1306, which the
learned Judge had rejected, which adds two to his poll,
and the conclusion of the whole matter is that MacDiarmid
has a majority of one.

I think there should be no costs of the appeal.

G. A. B.

SOUTH PERTH (1898).

PROVINCIAL ELECTION.

Before Mr. Justice Maclennan.

Toronto, March 26, 1898. .
April 12, 1808.

Ballot Papers — Markexl icifh niimhers — By Deputy Returu.iiKj Officer —
Marking cronx on left-hand utile — Name of candidate printed in wrong
division — Uncertainty.

The fact that a number has been placed on the back of each ballot j)aper

in a voting .subdivision, in pencil, by the Deputy Returning Officer,

will not invalidate them.
The fact that the cross is marked in the division on the left-hand side of

the ballot pa|)er containing the candidate's number, and not in the

division containing his name, will not invalidate them. The WiM

Elgin Case, ante p. 38, followed.
Where the printer had printed the surname of a candidate too high up

and in the division of the ballot pa|)er occupied by the name of

another candidate : —
Held, that the ballots marked with a cross above the dividing line but

oi)poHite to the surname so placed could r.ot be counted for such

candidate, but were either marked for the other candidate, or were

void for uncertainty.

This was an appeal from tlie County Judge of the
County of Perth on a recount of ballots. The facts are
stated in the judgment.

IM{( ) V I XC I A L E LECTKJX.

Wallace Xenhitt, and F. H. Thompson, for ]\Ioiit«!itli, one

of the candidate.s.

Idingfon, Q.C., for Moserip, another candidate.
No one for Frame, also a candidate.

JVIaclexnan, J.A.: —

Appeal from a r(!Count of votes before Bah Hon, (Jo. J.

There were 112 particular ballots objected to befoi'e
the learned Judge, twenty -nine by Monteith and <'i,i;'hty-
three by Moscrip. Objection was also made on Ix'half of
Mr. Monteith to all the ballots cast at pollino- sub-division
No. 'i, Township of Downey, and sub-division .' >. 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.

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.(.',

PROVINCIAL ELECTION.

FRAME

(George Frame, of the Township of Downie,
in the County of Perth, Farmer. )

MONTEITH

(Nelson Monteith, of the (iore of the Township of
Downie, in the County of Perth, Farmer.)

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

SOrTH PiSRTH.

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'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,

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.

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

I'KOVINCIAJ. KI.K<rriON.

candiflatf, but where you have a ballot printed an this is
you cannot give ett'ect to the expression "other place," etc.,
because it is so printed that Monteith's name invades the
area set apart for Frame.*

Now, you find this cross opposite Monteith's name, and
also within the place allotted to Frame, so that the xote
represents two things, the alternatives have been fulfilled
by this vote. • *

That has been occasioned by the returjung officer and
the blunder of the printer, and if you go any fiuther that:
that you can attribute it to the candidates themselves who
chose to adopt different colours, which obliged the printer
to run the ballot papers three times through the press,
resulting in this misprinting and confusion by which one
man ha^ vote<l for two persons.

I think the ambiguity is such that there has not lx;en
a fair election. The Act has not been complied with, and
as to sec. 214 there has been such mistake as has affected
the result of the election, the majority standing only as
three, one vote having been taken off yesterday.

Meredith, J. :—

It cannot, I think, be seriously contended that the.se
fourteen voters did not intend to vote for Monteith ; the
only direction which each received was to " place a cross
on the right-hand side, opposite the name of the candidate
for whom he votes, thus X," and that direction every one
of them has carefully observed, some of them putting the
cross so near to the name of Monteith, opposite it and on the
right-hand side, as to indicate more than ordinary care that
there should be no danger of their intentions being frustrated.

Without doing violence to one's common sense, it
cannot, I think, be admitted that there is any doubt of the
intention of the voters to vote for Monteith, less that it
was not their intention to vote for Frame.

* Seo form of the ballot at p. 50. — Rep.

SOUTH 1»KKTH.

I do not undcrstaiul that Mr. Justice Maclennan —
(1898), 18 C.L.T. Occ. N. 255*— has come to any ditferent
conchision as to tlie intentions of these voters ; if he have,
and be rijjht, then I am incurably wron^.

Place the ballots and tht; " directions " which the voters
had in the hands of any unprejudiced, reasonable man, and
can it be thought that he would hesitate in pronouncing
them to be marked by voters who intended to vote for
Monteith ? Take away the directions and tl»e result
would probably be the same.

Then, can we di.s(|ualify these voters ; or, worse than
dis(jualify them, tjive their votes to a candidate they
intended to vote against, with the result of electing
another candidate to wliom they were opposed and against
whom, also, they intended to vote ?

If so, their candidate will be defeated, and a candidate
they opposed elected by the slipping of their ballots in
passing through an apparently ill-managed printing-press,
instead of by a majority of the electors.

It is said that these votes must be counted for Frame,
no matter what are the consequences, because, it is said,
the cross though opposite and on the right-hand side of
the name Monteith, is, through the misprinting I have
referred to, within the division upon the ballot which
contains the name of Frame.

I am not prepared to assent to eitlier of these
propositions.

There is nothing whatever in the " directions " to
voters requiring or authorizing them to n>ake 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.

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.

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.

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

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 <lnly appointed by the
returning otHcer in the place of tlie former, appears at the
polling place, then the poll clerk shall act at the poll as
deputy returning officej- and })erf()rm all the duties and
be subject to all the obligations of that office, in the same

WEST HURON.

()1

manner as if he liad been appointed deputy returning
officer by the returning officer."

Tlie language of this section is very wide, and covers
an absence of the deputy returning officer of the most
temporary kind. The poll must be kept open from nine
o'clock until five o'clock, and the deputy returning officer
. ought to be in his place during the whole of that time to
take the votes. Yet some controlling necessity may pre-
vent him from being there for some part of the day, be it
for five minutes, a half an hour, or even longer, and then
the poll clerk takes his place as a matter of course under
the powers conferred upon him b}^ sec. 89. It is observ-
able that he is not obliged, as the deputy returning
officer is, to appoint a poll clerk. The language of tiie
Act in his case is that he may do so. He na<^urally would
do, so were the deputy returning officer to be absent for
the whole or a great part of the day, but would hardly
think it necessary if the absence was to be so short that
no more than a few votes might be expected to be taken.

My conclusion is that the ballot bears the initials of
the polling clerk, acting as deputy returning officer ml hoc ;
that it is a good ballot, and ought not to have been
rejected, and must be counted for the candidate Garrow.

I rather infer, from what the learned County Judge
has said, that he would also have counted it but for the
supposed error in ihe count of votes, already referred to.

No. 2 : A ballot without any official number. Poll
No. 5, Ashtield.

This ballot has been counted by the deputy returning
officer and b}' the county judge for Mr. Heck.

It is objected to on the ground that tin- official numbiir
has been torn off". It bears the initials of the deput}'
returning officer, and is j)r()perly marked for Mr. Beck.
A narrow strip has been torn off along the upper part
from one end to the other at right angles to the division
between the ballot and the counterfoil. The official

PROVINCIAL ELECTION.

number is thus, it may be Haid, entirely torn oft", though
there remain some slight marks which shew that before
the paper was nmtilated there was a number uix)n it. I
am clear that this ballot ought to have been rejected.

I cannot assume that the deputy returning officer
gave it to the voter in its mutilated condition. Neither
can I assume that somebody may liave mutilated it after .
it left the voter's hands and was placed in the ballot box.

As the matter stands before me, whatever other aspect
it might wear if extrinsic evidence on the subject could
be given to shew that it was torn after it had been
counted by the deputy returning officer, the only
presumption to be made by the county judge, or by me, is
that it was mutilated by the voter. An integral part of
the ballot having thus been removed, I am of opinion that
the remainder has ceased to be a ballot, and that it should
not have been counted. Very different considerations
would appl}^ if merely a blank part of the ballot paper
had been torn off'.

The appeals of the candidate Garrow in respect of five
other ballots were heard and dismissed on the argument.

As to them, I affirmed the decision of the county judge,
following, as regards ballots marked with a single horizon-
tal or slanting line — — / or with a cross in tliis form V
or this A, the judgment of the Supreme Court in Jenkins
V. Brccken (1883), 7 S.C.R. 247.

Then, as to the appeal of the other candidate, Mr. Beck.

No. 1 : Polling sub-division No. 1 of Colborne. A
ballot marked for Mr. Beck, and with the word vote written
after the candidate's name.

No. 2 : Polling sub-division No. 2, Goderich. A ballot
marked for Mr. Beck, and witli the word Jos. written
before the candidate's name.

No. 3 : Polling sub-division No. , Ashfield. A ballot
also marked for Mr. Beck, and with the words for Beck
written on the back.

WEST HURON.

Tliese ballots were disallowed by the deputy returning
office)' an<l by the county judge.

Upon the best consideration I have been able to give to
the authorities cited, and which, sitting here, I am bound
to follow, I am entirely of opinion that these ballots were
all properly disallowed. Tliere is nothing to shew that the
writing was not placed on the back or front of the ballot
by the voter himself. The presumption is that it is his

wn^i'ig.

The whole subject of ballot marking is well worthy of
examination by the full Court of Appeal with the view of
laying down more clear principles of construction of the
relevant .sections. The cour.se of deci.sion in this country
has. however, been to disallow ballots marked as above. I
refer to the Xuiih Victoria Case (1875), H.E.C., 671, at
p. ()<S1, where it is said: " The voter besides putting the
cross for the respondent has written the respondent's
name in full. That is certainly bad, for by that writing
tht' votei- nuiy be identified. I cannot say it may not
ha\(' been put there for just such a [)urpose."

And the same principle was applied in Woodward v
*Sfn>'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

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',

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.

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 <lay on
which the rehn-n left the hands of the returning officer.
The object of sec. 189 was to secure the publication of
infonnation of which eveiybody would be oblig(Hl to
!) — vor-. II. K.c.

I'HOVINCIAL ELECTION.

take notice : and I think it was for the very pur])08e,
inter (ilia, of tixin*;' the date from which ])i'(X't'('(linj;s
to attack the election Hhould run.

In my opinion, therefore, l)ound as we are to read these
two acts ill pari 'iiKifcrid, the return is made to the clerk
of the Crown within the meaninij of or for the purpose
of sec. of the Controverted Election Act, R.S.O. cli. 11,
when it has been received by him and not earlier.*

The second objection is more ti'oublesome, and certainly
is provoked by the omission of the petitioner to comply
with a plain direction of the Act; but on the whole, after
.some consideration, I am of opinion that I ou^^ht not to
yield to it.

Sec. R.S.O. cli. 11 enacts that tlie petition is to be
presented within 21 days, and sec. 10 tliat presentation
shall be mac^ • by deliverintf it to the Registrar of the Court
or otherwise dealintr with the same in the manner prescribed.
No manner is prescribed fov otherwise dealing; with it, and
a petition is thus presented within the meaning of the Act
by simply tiling it with the proper officer with the affidavit
required by sec. 11. And sec. 18 so speaks of it: "Where a
petition lias been tiled, etc." Then sec. 15 under the
heading " Service," enacts tliat " Notice of the presentation
of a petition under this Act accompanied by a copy of the
petition, shall, within tive days after the day on which
security for costs lias been given, ... be served by the
petitioner on the respondent ... in the manner in
which a writ of summons is served," etc.

No separate notice of presentation was served, but a
copy of the petition itself was duly served, on which was
endorsed the following: "This petition is tiled, etc.

The question is whether this omission of the separate
notice of "presentation" of the petition is fatal to the pro-
ceedings.

[* See Mackinnoii v. CVrt*/- (1898K 14 Times L.R. 48.") ; [1898], 2 Q.B.
2r)l. — Rep.]

OTTAWA.

Under tlie Controvortod Election Aet of 1871 .S4 Vie.
ch. 3 (O.), the first Htatute on the sul)ject in tliis Province,
sec. 8 provided that notice of the preHenttition of a petition
nnder this Act and the natuic of the proposed security
accompanied by a copy (jf tiie petition should be served
within five days after the security was given.

Under that Act security was U) he to the amount of
!?H00, and mi<;ht be jjiven by recotjni/ance by any number
of sureties not exceedinj^ four, or by a deposit of money in
the manner prescribed, or ])artly in one way and partly in
the other: an*l it was therefore exti'emely inipoi'tant that the
respondent should have exact notice of the nature of the
security, in order that he nii<;ht at once within the limited
time object thereto if given by, (jr partly by, recognizance.

Tliere is a similar provision in the English ('(introverted
Election Act, 180H, and in the Municipal Election Act,
1872. lender the latter the case of Williconfi v. Mayor
of Tenby (1875), 5 C.P.D. 135, was decided. It was
lield that the omission to serve notice of presentation of
the petition and of the nature of the proposed security was
a condition precedent to the maintenance of the petition
and was a tiling imperatively recjuired to be done.

In giving judgment, Grove, J., remarks at p. 187: "It is
said that there would be hardship supposing money deposited,
if mere omis.sion 'of notices should prevent a petition. I
see no more hard.ship thiui may occur in any case where
a definite time is to be observed, and 1 see good reason
why it should be so. Thei'c are two alternatives given,
and it is reasonable that the party should know which has
been adopted, viz., deposit or recognizance, and, if the
latter, that he should be .set instantly on encjuiry whether
the .securities an- good and valid or not. . Not

only is the p-rson depositing the .security limited by the
rules as to time but the per.son objecting to the security is
limited likewise. '

Had our Controverted Election Act remained' in the
same terms in this respect as when it was first enacted, this

(58

I'ROVrXf'IAI. KLECTION,

(IcciHion would suppoii the rcHpoiidcnt's ohjcftion. It
was, how»!V('i-, lUiicndtMl hy the li!) Vict., e. 10, .see. 2!> (().),
and Hocurity was thenceforward ie(|uire(| to be <fiven
Holely by the deposit of the sum of $\ ()()(), ami in the
revision of the statute in 1877 the connnisHi(jners, takini>'
notice of this, omitted that part of the section correspond-
in<j to sec. H, al)0ve cited, which required notice of " the
nature of the propost.'d security" to be ^iven, tliou<;h they
left that part of it which lecpiired service of notict; of the
presentation of the petition, and so the statute law now
stands.

The Dominion Act, R.S.C. ch. !), sec. 10, still re(|uires
notice to be <»iven of the presentation of tht; petition
" and of the .security " within five days after the petition
has been presented, althout^'h the security is also by deposit
of money only, which is to be made at the time of presen-
tation of the petition.

So far as the Ontario Act 's concerned no form of
notice of presentation is prescribed. It does not .seem
necessary that it should specify either when the peti-
tion was filed or when the .security was tji\en. The
lan<(uage of the section would be satisfied by mere
notice that a petition had been presented in respect
of such or such return under the Act. Had it been
required to be .signed by the petitioner it might have been
thouglit that the notice was intended to serve the purpose
of verification and to identify the copy of the petition to be
served with that which the petitioner liad sworn to, but
this is not prescribed. It is difiicult to see what purpo,se is
served by a notice of presentation which would l)e sufificient
within the Act which is not <M|ually well .served by the
endorsement Mhich appears on the copy of the petition
served on the respondent. The rea.sons which seemed
unanswerable in the Tenby case, have here no place, looking
at our ditterent legislation.

I think, therefore, that the motion nnist be dismi.s.sed,
but it is not a case for giving co.sts to the i-e.spondent.

(i. F. H.

TOWNSMII' ol SEVMOIH.

Re Voters' List of the Townsmii' uv Seymour.

OXTAlilO VnTHIlS" LISTS ACT.

Before the C'orirr

Appeal.

Present —BiHTON. C.J.O., Osi,i:k, ^Fai i.knnan, Mhi^s, and LisTKit, .F.I.A.

./(iini>i/\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 <li <lii- in
(li(ii>. \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 Jud<je of the
County Court of the United Cotuities of Northumberland
and Durham, for the opinion of the Court of Appeal, or of
a Judge thereof, pursuant to section .S8 of the Ontario
Voters' List Act, R.S.O. 1897 ch. 7.

Upon the revision of the Voters' List of the said Town-
ship of Seymour, at a Court duly heUl for that purpose on
the 1st day of Decend^er, 1898, the four applications here-
inafter mentioned were heard, and jud<^ment thereon was
reserved until an opinicjn should be y;i\en on the case
.submitted.

The (juestion, in each case, arose upon that part of
section 8 of the Ontario Election Act, which reijuires that

l»H(>VIN<'IAF. EF.EfTloN.

a {MTHoii, to Ih' <niiilifif(| to vote lit clrctioiiis to sfi'vc ill the
Lt'<fi,slativ(' AHHciiihly, .sliall Itc, at the tiinc ol' tt'iKlcriii^
liis V(»tt', a roHidi'iit of, and (loinicilfd williiii, tin- clct'toral
district, and " had rcsidiMl in the said flcetoial diHtriet eon-
tinuouHly I'roiii tlic tiinc fixed as at'oi'cHaid I'oi- l)t';;iimin;j to
make said roll, or i'or iiiakin;^ .such complaint, as the case
may be"

'rh(( time t'oi' bc^i'innin;;' to make the aHscssmcnt roll ol"
the townHhijt was on the 15th day of February, and, in
the year \HUH, tlie last day for niakln<f coiiH)hiint to the
Jud^i'e, of t'ri'oiH in the Voters' List, was the lJ)tl» day of
October.

None of th(! persons, with re<fard to whom this case
was submitted, were of the privilej^ed classes mentioned in
section 1 1 of the Election Act. Each of the said persons
had n^sided within the Province of Ontario for the nine
months in^xt prec(!dint>' 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.

#'■:

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 en<ja<f(!d for a month certain and from iiiontlv to month,
at a stipulated monthly wa<^e, and was so eiieaired there
on the l!)tli (Jctober, and until about the l!>th 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.

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 knowin<j that lie has no ri^rht to
vote sliall be guilty of a corrupt practice.

The effort has been to .support such charges by proof
that the voter nuist have known that he had no right to
vote because he had not, as re(juired by tlie latter part of
sec. 8 of the Act, resided in the electoral district con-
tinuously from the time fixed for beginning to make the
assessment roll or for making complaint to the County
Judge as the case might be : and the argument was that
continuously meant de die in diem, and that the voter
mu.st have known or nui.st be taken to have known this.

I have always disposed of such charges on the ground
that the section 168 rei|uired the existence of the meds
i-ea on the part of the voter to be shewn, and that he could
not be held guilty of a corrupt practice and liable to the
penalty imposed by the .«cetion where he honestly believed
that he had a right to vote, but that right depended upon
ohe view that might be taken of the true con.struction and
meaning of section 8. Having in mind the various mean-
ings of the terms " residence " and " resided," it is, in my
opniion, impossible to hold that the legislatui'e intended
by the word " continuously " in this section to infer a
residence de die in diem, within the electoral district.
The voters' residence beinff within the district, vhat is
meant is that there shall be no break in Ihe residence;
that the voter shall not, during the time specified, have
acquired a new I'e.sidence. His business may recpiire him
to go from his home for a day or a week, or even longer,
t'jKl such temporary absence, animo irreefciidi, is not a

TOWNSHIP OK SEVMOfR.

0(1

break in his residence in tlie electoral district. I do not
intend to otter a j^-eneral detinition of the term " residence,"
bnt I think we niay well apply the lan<i;uaoe (jf Lord
Campbell in Rtyiini v. Staplefon (1853), 1 E. di^^ B. 760, at
p. 772, "when a man is absent for a temporary purpose,
with an intention to return when that temporary purpose
is served, as, for instance, when he is absent for a week's
work in another parish, meanincr to come back at the end
of the week, it is no break in his residence. The phrase
' temporary purpose ' is not very detinite : still 1 think it
may in each case be known whether the purpose was tem-
porary or not."

To the same purpose is the case of Reginri. v.Brigfitliflni-
stone (1854), 4 E. & B. 236, also cited by Mr. Davidson.

In the case before us the absence from home was much
Ioniser, but the principle of the authorities cited fully ap-
plies. The voter went to Manitoba for a purely temporary
pxirpose, namely, to engage in harvesting operations there
during the sunnner, intending to return to his home in
Seymour when they were at an end.

I tliink all the persons mentioned in the ease were
entitled to be placed on the Voters' List. Norman Eraser
was already on it, and as to him, perhaps, the most that
can be said is that not enougli was shewn to displace him.

As to costs, I do not see that there is any one against
whom in such a case as this we can make an order to pay
them.

;s
te :

Maclenxan, J.A. — The cpiestion submitted arose upon
the revision of tlie Voters' List for the Township of Sey-
moui", on the 1st December, 189<S.

Applications were made to add to the list the namr of
Robert Little, and to remove therefrom tin- names of
Arthur Ive}', Norman Eraser and John Morrison, on the
ground of insutKcient residence in the electoral district.

10 — vol.. II. K.C.

I'ltOVIXCIAI, KLECTIOX.

LittU's resid^rieo waH Huiiiciciit in cvoiy i-espeet witliiu
the riKuiining of .svetion S of the Election Act, iiiilcss lie wan
(lisqualilied b}'^ al)siiK'o in Manitoba, Avbitbcr be went on
tbe 18tl) of xVn<rust, and wliere be remained until tlie 19th
of Novenibei', ]8!)S, wben be returned. Tbe hist day for
inakin<^ eomjilaint of liis omission from tbe list was tbe
l!)tb of ()('tol)er, and liis eomplaint was beard on tlu^ 1st
day of l)ecend)er. Tb<' time durino- wbieb be was abscnit
was time durino- wjiieb tbe Act i'e(|uired bim to bave been
resident and domiciled continuously wdtbin tbe electoral
district. He is a youno- unmari'ied man, and before and
after bis absence in Manitoba be resided witb bis parents
in tbe Townsbip of Seymour. He went to Manitoba for
temporary employment in barv^estino-, inteiidino- to retui'n
wben barvestiniT was over, and did so; and tbe (juestion is
wdietber bis absence was sucb an inteiTiption of con-
tinuous i-esidcnce witbin tlie electoral disti'ict as to deprive
bim of tbe francbise.

I am clearly of opinion tbat it was not. His stake
and interest in tbe country, and its tjovernment, were not
art'ected by bis absence, and tbe le*;islaturc bas sbewn its
anxiety tbat youno- men otberwise (pialifie<l to exercise tbe
francbise should not be dis(iualitied by sucb absence, by
enactint; section II, in favour of a loui^' list of persons,
whose employment and occupation require them to be
absent from home occasionally, or temporarily. I think tbat
section was enacte(l, not because sucb ab.sences woidd
otlK'rwise ])e fatal, but to make the matter clear and to
prevent disputes at tbe poll.

I tbnd< the cases to which we were refei-i-ed by Mr.
Davidsoji, namely, Rcrjlnn v. Sfuplcto)} (1S58), 1 E. & H.
7()(), aufl lin/lHif V. Hr'xjhihclmMoiw (1854), 4 H .^' H. 28(J,
are authority foi' holding that the continuous residence,
re(|uired by the statute, w.is not interru])ted by Robert
Tjittle's absence in Manitoba. 'i'hat temporai'v absence,
even of vei'v considerable duration, is not inconsistent witb

TOWNSHII- OF SEYMOUH.

( o

continuous rcHidencc, wlicre the Iranchisc is eonccrnetl, is
further shewn by a paragraph of the oath, riMpiired to be
taken by a fanner's son, R..S.(). ch. 223, see. 8(5 (4e) and sec.
115, which is as follows: "That you resided on the .said
property for twelve months, next before the .said day, not
havin«j been absent during that period, except temporarily,
and not more than six montl iS in' all." That is the oath
which WMs piT.scriljed for farraers' sons, for tlu; purpose of
electicj Lo the Lei^islativc^ A.s.sembly in 1877, by 40 Vict.
ch. i), sees. 3 and 8, lont; before the Act providing expressly
for the tem})or.iry absence of lumbci-men. mariners, etc.,
now contain! >ec. 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<l,

(;. E

■|!>

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,

Hexrv George Lackner, Respondent.

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.

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<l<l, that the election was rightly avoided, notwithstanding the saving
clause in sec. 172 R.S.O. eh. 9.

This \va« an appeal, upon tlu' grounds and under the
circuiiiHtances stated in the judgnnmt of Osler, .J. A., From
the judgment of the trial Judges in respect to a petition
against the return of Henry (Jeorge Lackner as a niend)er
of the Legislative Assembly of the Province at an election
for the electoral district of North Waterloo holden on
February '22nd and March 1st, 189«.

The trial took place at Berlin before Rose and
Ma( Mahon, JJ.

of a

reof,

and

iter a

the
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bar
lotel-
oys '"

"^the
• the

the

The respondent was unseated.

Aylesirorfh, Q.C, and W. D. Mdcplwrsoii, for the
(respondent) appellant, referred to Hamilton ('asr (1891)
1 E.C. at p. 502; BoroiKjh nf Wi'sfhuri/ ('((sr (18()0)j
1 O'M. & H. at p. 50; Xorfh Oufun,, ('as,' (1884),
1 E.C. at pp. 1. 20, 21, .SO, :U : (Uciifjarr;/ Cat^e
(1871), H.blC. 8: 7v^s/ Toronto i'asc (1871), ih. pp.
70, 90; Xorth MahHexvx Case (1875), 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

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 <ijrounds of appeal substantially art- : — 1. That no
proper or sufficient particulars of the corrupt practices
intended to be relied upon, \eritie(l ly atfidaxit, as pre-
scribed by the statute and rules in that behalf, were
furnished to the respondent.

2. That a portion of the trial, that is to say, the
delivery of the judgment upon the reserved charo-cs and
the avoidance of the election, took placi' without tlie
consent of the respondent at a time when it was not
lawful for such trial to be proceeded with without such
consent, that is to say, within fifteen days after the close
of a session of the Le;;islative A.ssemblv.

3. That the facts proved in reo-ard to the char<^ef;
upon which judjjjment was reserved did not constitute the
corrupt pr ictice found nor any corrupt practice within the
Election Act ; and

4. As reii;ards the two chart^es of bi'ibeiy which had
been found proved on the first day of the trial, they had
been committed without the knowled<.je and consent of the
respondent, and were so trifling in their nature and extent
that the election ought not to have been or to be avoided
therefor.

The petitioner lodged a cross-appeal, contending that
the facts proved in relation to the charges on which
judgi lent had been reserved, constituted not merely the
offence of brihery as found by the ti'ial .ludges, hut also
an oft'ence within sec. 101 of the Election Act, E.S.O. ch. U.
and that the electiori ought r !>«• 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 jitfi<lavitH.
If tile affidavit ol" verification is attached to the particuhirs
fikMl that is sufficient. I'hey are complained of as l)ein<f too
va<:;ue, and general. 'I'hey are, no doubt, very awkwardly
framed, each of tlie clauses objected to comprising a great
many charges of a similar kind. It was, however, for tlie
Judges at the trial to decide whether the respondent was
embari'as.sed by the form in which they were presented.
He does not seem to ha\e been .so, and there is no reason
why we should now, even if we could, interfere on this
ground. Had time served before the trial, a Juflge in
C'hambcirs might, no doubt, have done .so had he thought
respondent embarrassed by the form of the piwticulars,
but it is now too late to entertain the objection, nor, as
things have turned out, is there any sub.stance in it.

The .second objection, though a technical one, in the
sense that it has nothing to do with the real merits of the
case, but is concerned simply with the mode in which it
was disposed of, is a more important one.

A session of the Leijislative Asseml)lv eonnnenced on
the third day of August, 1898, and on the •24th day of the
same month was adjourned to meet again at such time as
it should be called for that purpose by proclamation of the
Lieutenant-Governor, and on September 22nd, 1898,
when the trial was commenced and all the evidence in the
cause was taken, the session was still in existence, though
adjourned as above mentioned. The 47th section of the
Controverted Election Act, R.S.O. ch. 11, provides that,
" .subject to the provisions of sec. 48, the trial of every
election petition shall be commenced within six months
from the time when the petition was presented, and, .so far
as is [)racticable, consistently witli the interests of justice
in respect of such trial, shall be continued dc die in diem
on every lawful day initil its conclu.sion.

" Sec. 48 : In case the member elect is entitled to take
his seat, the trial of the jx'tition shall not, without his

NORTH WATKIU/X).

lav
ice

i')n

ike
liis

consent, be liel<l duiiii"' a HesHion of the Lei^i.slative
Ansenibly or within til'teen (hiys after the cIohu of a
session; and in tlie coiiij)utati(jn of any dehty nUotved for
any step or proceedin^f in i-espeet of the trial or for the
commence nifint of tlie trial under the next preceding
section, the time occu})ied by the session shall not be
reckoned."

If, therefore, there had been no other k'gislation upon
tlie subject than the two sections \ have cpioted, the
trial of the [wtition could not iiave lawfully commenced
when it did, inasmuch as the session was still in existence,
and the meml>er 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.

IMJOVIN'CIAL KLKCTION.

(liHic-ulty wliicli now pi-cHcnts itscll' uriHcH IVoiii tlic fiction
which wiiH ,suhH('(|U<nitly taki'ii l)y thc! Lioutenaiit-CJovrrnor.

Hi'i'oic tlio (lay on which, l)y the juljournnu'iit which
took place at th(3 trial, the jiul<i;incnt on the reserved
charges were to he delivereii and tlu; petition disposed of,
it was dc^terniined, foi- reasons of State, that the session of
tlu! Assend)ly shonld not meet a^'ain piu'suant to its
adJonrtniKMit, but should l)e proro«:jued, and it was l)y
proclamation of ()cto])ei'. 12th, J8})8, prorot^ued, and
ended accordint^ly : and havin<( ended, sec. 8 of the Elec-
tion Act of 1898, with the proviso which had been added
thereby to sec. 48 of the Controverted Election Act, ceased
to be any longer in force.

On Octobei' 14th, the day which had been already
appointed for the purpose, tlu; ti'ial Judges proceedtjd to
give judgment upon the reserved charges and to dispose of
the petition, although that was a day which, in conseijuence
of the proi'ogation, fell within fifteen days after the close
of the session. The respondent's counsel objected that if
the delivery of judgment was any part of the trial, he was
not prepared to consent to the trial being then pi'oceeded
with.

The objection, as I have said, is of a strictly technical
character, and the circumstances in which it arises are
such as would seem hardly to have been in the contempla-
tion of the Legislature under sec. 48. The object, or 'one
object, of that section was that the legislative duties of the
sitting member should not be embarrassed or interfered
with by the annoyances and distractions incident to tJie
trial of the petition, and that he should have a reasonable
time after the close of the session in which to prepare his
defence and procure his witnesses. In the present case
the actual business of the session was at an end on
Auofust 24th, and therefore there was no more incon-
venience to the respondent in the trial being proceeded
with- — if what was done was a proceeding with the trial

NOKTII WATKHLOO.

— on Octoljcr I'Jtli, tlitiii tlit-rt' was in its liuNini;' liccn
connnont'L'd on ScptcinlHT 22n(l. Ncvcillu'lrss, tlio
proi'opition was in law tlu; clo.sc of the Ht'ssion, and
therefore: sec. 48, shoi'ii of its anicndnu-nt, nuist novcni.
Unless the «;ivin<; of ju<l<;inent can hr considei'efl as
something' apart from the ti'ial within the nieaninj; of that
8eetion, or, if it be part of the trial, unless it may he
re<^arded, un(h'r the adjoui-nment of SeptemlxM' 22nd,
as luivin<j been given by consent witliin the section, there
would be <rrave difficulty in iipholdin;,^ tln' i't'u;ul!iiity of
tlie proceedintr, as it must then have Ijeen taken at a
time at which by law the trial could not have been
lej;ally i»eld: Smith \. Rooiu-y (lHo5). 12 (T.C.H. (iOI ;
Mdllory a' Co. V. Miles (1862), 4 Mete. (Ky.) o:i ; (ho<fsdl
V. Iiuy)it(»i (183!)), 1 Scam. (111.) ooo ; (inhislHi v. linffcr-
Jield (1840), 2 lb. 227; InhalntantH of Spri ,njfu-UI v.
InhdhiiiDitH of Worcester (1848), 2 Cushinj^ 52 ((•ontra
LikUoiv v. Johnson (1828), 8 Ohio 553). It is unnecessary
to consider whether, assumint^^ the judfjment to be part of
tlie trial, the learned Judges could have directed it to be
entered nunc pro tunc as of September 22nd. Tiiey did
not in fact do so, and having regard to tlie nature of the
proceedings and the time within which an appeal must be
brought, it is perhaps (juestionable whethei* that course
could have been taken. At all events, another course was
open to them, viz., a further adjournment to a lawful day,
by which all difficulty could have been avoided.

After some consideration, I have arrived at the con-
clusion that, on one or other of the gnnmds I have
suggested, the regularity of the decision and of the
certificate and report of the trial Judges may be supported.
I have already pointed out what appears to be the object
of sec. 48, viz., that the respondent shall not be hara.ssed
with a contentious litigation which may conHict with his
legislative duties. But if the witnesses have been
examined, and the cause heard before the connnencement

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(716) 872-4503

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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 made during the session, or within fifteen days
after its close.

" T. . V is the examination of a cause, civil or criminal,
before " Ju**^-;!' who has jurisdiction of it according to the
!/'\v "l" flu- \ It is the trial and examination of the
pos.'i":!. ill - and of the (juestion between the parties

ivhcreupon j' dgment may be given : " Jacob. Law Diet.
(1733). "Tryall is to find out by due examination the
truth of the point in issue or (|uestion between the
parties 5|3^ whereupon judgment may be given :" 1 Inst.
124 yb\ 125 ((t).

Judgment, according to the well-known definition, is
the sentence of the law pronounced by the Court upon the
matter contained in the record. There are, no doubt,
circmnstances in which, having regard to the language of
particular enactments, trial includes the sentence or judg-
ment pronounced, for example, after a verdict: see Tlie
Queen v. Castro, !) Q.B. 350, 358; but the rea.son of the
thing warrants us in saying that the word trial as used
in the section in question does not denmnd so compre-
hensive an int«n'pretation.

Whether, therefore, we regard the intention of the Act,
or tlie meaning of the word trial as distinguished from
judgment, there is nothing in the section which compels us
to hold that when judgment has been reserved after the
examination of witnesses and hearing, the trial Court is
restrained from giving it or from issuing their certificate
and report at any time whether during or after a session.

XOKTH WATEUMM).

Vet,

OIU

1 us
tlie
is
ate
on.

I think, Ux), tluit tlu* conHcnt to the juljounnnent of
the case to Toronto to jjive jud^jnu-nt on Octobt-r 14th
ia a sufficient consent, even if tlie judjjnient he pnrt of the
trial, witliin the meaning of the 4Hth section. The j)ower
of tlie Court to dispose of tlie case then and theie, the
place l)einj; out of the «dectoral district, depeiuh'd upon the
consent of the pailies : see. 44 Controverted Election Act,
R.S.O. ch. 11. I think that consent remained efiective to
the fullest extent, ami was not affected by the accident of
the proropition by which the session was closed before
the (lay appointed for {jivinj^ judijnient.

I therefore proceed to consider the merits of tlie
appeals.

It was foinid, as I have said, at the trial that two acts
of brilxiry had be«'n connnitted by agents of the respondent,
viz., charije No. 7, bribery of one William We.ssler by
John R. Kden by payment of two dollars; and charjje No.
15, bribery of one Michael Schell by Dr. Hujjh (». Kobei-ts
by payment of five dollais. Two other chartjes under
items 24 and 25 of the particulars were also investi^fated.
The former comprises a number of char<jes of what is
comnjonly called treatinj^ a meetinj,', contrary to sec. 1(11
of the Klection Act, RS.O. ch. 0, and alle«;es that durinjj^
the month of February, 1X98, the respond«'rjt and one
J. H. Scully and one John R. Eden and others, his agents,
did provide and furnish drink or other entertainment at
their expen.se or at the exjiense of the respondent to meet-
ings of electors, assembled for the pui'pose of promoting
the election of the respondent, at various times and places,
during the election.

No. 25 is a very comprehensive particular of corrupt
practices forbidden by sec. 1(52, and sets forth that during
the month of P'ebruary, 189H, and previous to and dming
the election, the le.spondent l)y himself " and through
other persons, his agents {Inter (tlld), J. H. Scully and
John R. Eden, did " directly or indirectly give or provide

rar

S<i

I'ltOV I Nd A L ELKCTK )X.

or cjiuse to Ik; <;iven or proviilcd, (,r wan aicci'ssoiy to the
;;iviii;; or providinj;, iiixl did pay wholly or in part
exp<'nH('H iiKMirrcd Tor meat, (h'iiik, >:'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<l(!r to l)e el»'cted or for
the purpose of corruptly inthu'ncinj; such persons or other
persons to vote for the resjKMHlent or to refrain from
votin<; n^iinst him at t!ie said election." The times and
places where these corrupt practices weiv cha/^ed to have
heen connnitted wc^re (inter itlin) (Jrosser's Hotel and
Alhei't's Hotel at Bridjjeport on February 21st, 1H08, and
Hrohman's Hotel at Winterl[M)urne on Fehruary 17th, 1898.

The evidence j^iven applies to the charges under lK)th
sections.

The learned trial Jud«;es held that no corrupt practices
had been proved under sec. 161, that is to sa}', that there
had Iwen no treatin*; of a n»eeting. They also held that
J. H. Scull}' had treated or caused to be treated certain
electors at (Irosser's Hotel and at Brohinan's Hotel by
furnishing' drink to them at these places. They declined,
however, to hold that these v/ere corrupt practices under
sec. 1()2 as charj^ed in the particulars, beiufj of opinion, as
I understand the lanjjfuajje of my brother Hose, that what
was done by Scully could not, within the meanin*; of that
section, be said to have been done " by the candidate
corruptly by himself or by or with any person, or
by liny other way or means on his behalf directly or
indirectly," that is to say, that Scull}' was not the agent
of the candidate for the purjKjse of doing the acts in
(luestion. In other words, I understand the learned
.Ju<lges to have been of the opinion intimated by our
late brother Patterson in the Wclland Cdse, 1 E.G. 383,
408. ind elsewhere, that sec. 102 stiikes at something
dom' by the candidate himself or by some person expressly
or impliedly authorized by him to do that very thing
which the section prohibits, so as to make him liable to

NORTH WATERLOO.

or
or
nt
in
led
lour

the iK'nalty iiM|X)se(l tlicreby. The learned .Judj^es held,
however, that althoujjh tut corrupt practices under sec. 102
had been coinniitted, wiwit Scully luul done was a corrupt
practice by an a<;ent under sec. 150, that is to .say, bribery,
altliou<;h it is not so charijed in the particulars nor was it,
OH I think, so tried. J)urin<j the trial it was admitted
that, under char<;e 25, other cases ol' practically the same
character could be proved, not necessarily connnitted by
the agent Scully or precisely similar in their circumstances,
but still, as the petitioner would contend, cases of corruptly
providint; refreshment, ccmtrary to sec. 102 ; and counsel
foi- the respondent conceded that if the trial Judges held,
contrary to his contention, that the two Scully clmrges
were corrupt practices (and, as it seeujs, corrupt practices
of that nature), he would not \)v in a position to claim the
benefit of the saving clause, sec. 172.

Finding, therefore, tliat four corrupt practices had \)eev
])rov(!d, viz., two of bribery by the payment of money, and
two, as it was considered, of bribery by ti-eating, and that
other like cases of the latter kind might have been proved,
the learned Judges avoided the election absolutely. There
was no finding as to the alleged treating by Eden or by
another alleged agent named Sketz, although there is some
evi<lence m the record as to both. The petitioner, how-
ever, does not appeal as to either x)f these charges. His
cross-appeal is confined to the (piestions whether, as to the
charges upon which judgment was reserved, the evidence
proves an offence by Scully under sees. 1()1 or 1 02, or
either of them, and whether the election ought t') be
av(jided inider the 7th and 1 5th charges alone. As to so
much of the cross-app«!al as relates to the charge of
treating the meetings at Bridgeport and WinterlxMirne, I
agree with the learned trial Judges that the evidence does
not bear it out. The meetings were entirely at an end
and broken up, and the persons who composed tliem had
separated, and although many of those who had been

fW^

PROVINCIAL EL?:CTI()N.

present thereat went from the room in tlie liotel Ht which,
in tlie former place, the meeting had heen liehJ, to tlie bar
across tlie passajje : and from the town hall, in the latter
place, to the hotel, yet the pel sons treated were not those
who composed the meetinj^s, but a " mixed nniltitude,"
comprising some of those who ha<l V)een at the meetinj^s
and others who were in the bars ami elsewhere al)out the
hotels. We are not to strain the words of the stattite,
which forbids simply the treating of " an}' meeting of
electors assembled for the purpose of promoting the
election." There is no evidence that Scully intended to
contravene it by treating the meeting, and it is enough to
say that the case is not, as I read the evidence, and as the
trial Judges have found, brought within the decisions in the
PrcHcott^i E.C. 88) or the Mvslcnhi {\ E.C. 197) cases, where
the (juestion was very fully considered by this Court. The
decision in the latter awe goes to the very verge of the
law, and I doubt very much whether the decision of this
Court would have been the same if the trial Judges had
found difi'erently upon the evidence.

The question of what other otf'ence, .i any, is proved
by the evidence as to the treating by Scully or at his
instance at Grosser's and Brohman's hotel is to .some
extent involved in both the appeal and cross-appeal. The
respondent contends that it shews neither bribery nor an
offence under sec. 1()2, while the petitioner relies upon it
as proving an offence under the latter section, which is
contrary to the finding of the learned Judges, and he does,
though faintl}', insist that it may also amount, as they
have held, to the offence of bribery. I nujst say, with
the greatest respect for my learned brothers, that I find
myself wholly unable to adopt the latter view, which,
regarding the evidence, seems to me to confuse two kinds
of corrupt practices, the distinction l)etween which is
clearly recognized by the Legislature in sees. 150 to 163
inclusive, and to one of which, viz., corrupt treating, no

NOUTII WATERLOO.

penalty, as I road the Act, is iinpoHod upon the voter who
accepts the treat, which lie may <lo without any intention
of actin»( corruptly and in ij^norance of any corru|)t
purpose or wronjjfloin^ on the part of the treater. The
ditterence in this respect l)etween sec. li>'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 ('<irrieh-fe,yns Case, 3 ib. !M ; Xt,rfh
Ontario Case, 1 E.C. at pp. IS, 21 ; see also Kogeis on
Elections, 17th ed., part 2, p. 29(J, where it is said " There
is a wide difference in the nature of the two offences, lM)th
as rejrards the candidate and the voter. In l>riberv a
corrupt contract brtween the voter and the candi<late for
the piu'chase of a vote usually exists ; l)ut not so in treating;.
Bribery is directed to ol)tain the adverse, or llx the doubt-
ful voters ; treatin<; is resortetl to to confirm the ijocxl
intentions and keep up the party zeal of those believed
to be already in the interest of the candidate." If the
treating; amounts to bribery, the person accepting it
nnist also be guilty of the offence, and upon the evidence
in this case it is impossible to say that those who did so
were actuated by any corrupt intention or were conscious
of any corrupt influence being exerted upon them.

Scully's acts, therefore, ni order that they may affect
the election, must Ix^ such as to constitute corrupt practices
within sec. 102. The difficulties in the construction of
that section in its relation to sec. 171 have V)een already
adverted to. If Scully was not an agent of the res|)ondent
within the meaning of the section, not having acted nider
12 — VOL. n. E.C.

fwm

IMIOVINCIAI. EIECTIOX.

hiH iiiMtnu'tioTis or uutliority, ho jih to reiulrr tlu' latter
liabK' to tlu' |)«'niilty imposed tluTchy, and if the respon-
dent was not liiinsttit' party to his conduct, as tlie trial
Jud;;es liav<! hdd, then it isconten<h'd that as to this tliere
was no corru])t practice by the candidate or his ajjent
within sec. 171 which will avoid the election. I am not
<li,sposed. more than was my brother Patterson, to attempt
the task of harmonixini; these sections unless it l)e
ahsolutelv neces,sarv to do so. Even if we held that
Scully's acts were not corrupt practices, or, if they were,
that they were not such as would avoid the election, there
wouhl remain the (piestion whether the election should be
saved, notwithstanding; the two acts of brilx'ry by Eden
and Roberts, which, for the present purpose, I assume to
be the only ones proved. The majority is said to be
sixty-tive.

Sec. 172 is one which I have often had occasion to
consider (in ca.ses reported in 1 Election Cases and subse-
quently), and never without being pressed with the
difficulty there is in judicially acting upon it. It has
always been denied that its application is to depend upon
the number of corrupt practices proved, or that it must be
siiewn, as it were, that the entire majority was procured
by means of such practices. Then, where is the line to be
drawn ? If no more than a couple of instances are proved,
and the Court can feed convinced that in the circumstances
they are isolated corrupt practices connnitted by persons
who were not likely to have gone fiu'ther, or not having
the means of going further, a case would probably be made
out, if the majority was a substantial one for applying
the section. It might then be safely said that these were
trifling in their nature — having regard to the persons who
brilMid and their means and opportunities of doing or
desire to do wnmg — and trifling in extent, referring to
their number. In this case the acts were connnitted by
[H'rsons who were active, and in Eden's case at least,

NORTH WATKRLOO.

iiiiportaiit jif^rntH of i\\o candidate. Dr. IIoIkmIm wan at
least willin*; in one inHtance to spend money unlawlully.
He does sjiy he did not spend more. WliiK* Kd»Mi was a
[Mir.son who ha<l access to a fund by means of wliich he did
connnit the act of bribery char<;ed. It is said that the
expenditure of the fund was vouched for- we do not
know how it was expended — but the vouchiu}^ was done
by Mr. Scully, who occupied a very prominent position as
ajfent of the candidate, and the value of his audit is shewn
by his havin»j " pa.ssed " the item in (piestion liere, and
perhaps also by his conduct in other respects.

Neither he nor Eden was jailed at tlie trial, a circum-
stance it is im|x)ssible not to comment upon. I have not
the least conviction that Eden connnitted no more thbn
the one corrupt practice which has been broujjht liome to
him, and I am therefore unable to hold that judgment
avoiding the election was wronj^. The appeal must
therefore be dismissed, and, 1 sup|K)se, w^ith costs. The
cross-appeal, which I rej^ard as entirely unnecessary, nni.st
share the same fate.

Burton, C.J. ().: —

I do not think we can derive much assistance from tiie
decisions as to what would be con.sidered as part of the
trial in a suit or proceedinj]f at conunon law. The <j[uestion
really is, wh.at is meant under the Controverted Elections
Act, R.S.O. ch. 11, which is an Act sui generis, by the
word trial as used in that enactment ?

Clause 48 was pa.s.sed, no doubt, with the o})ject and
intention of providing; that a member should not, when he
was attending to his Parliamentary duties, be liable to be
interfered with in order to prepare for the trial by
summoning his witnesses or attending the trial, and when
we refer to the next preceding section it seems pretty
clear, I think, that the actual trial — as that term would
ordinarily be understood by laymen — was meant, that is,

■n

!)2

I'KOVINCIAL KLErTlON.

ail inv('stit;iiti()ii in ojm'Ii Court by the rxaiiiiiuitioii of
witiK'Hscs iiiid the ar^^umcnts of counHoI upon their
cvidciKM'.

Kxccpt in the ous<'h provifh'd for by sec. 48, tho trial is
to coininonce within .six months, and, so far as practicable,
consistently witii the interest of justice in l•(^s[)ect of such
trial, 1h5 continuetl dr dlf in diem until its conclusion.

L(K)kin^ at the object and intention of sec. 4H, I think
we arc Ix'st carrying out the spirit of tho enactment by
holding that th«! trial reft'rre<l to meant the examination
and ari^uments, as 1 have pointed out, and that it was
then concluded. The reason for the restriction has ceased
when the trial, as understood in a popular sense, is over,
the member's presence not bein<; recjuired at tho time fixed
for the deliveiy of the decision. I think no injustice can
be done by so holdin*;, and as the word will bear that
meanin;j, I am myself dispcwed to so hold.

The proceedin<rs on September 22nd were perfectly
regular, and the parties at the conclu.sion of the trial
havinjj^ con.sented to an adjournment to Toronto, a place
not in the electoral di.strict, without any ((ualification, for
the purp(),se of giving an opportunity to the Judges to
prepare their decision, (jught to be estopped from (jualifying
it by something which occurred subsetjuently, especially
whei'e the objection is .so purely technical.

Upon the merits I agree with tlie trial Judges that the
case is not within .sec. 1(11. Scully, no doubt, intended
that any of the voters who were expected to come into
town that evening should be treated, probably with the
view of making the candidate lie was .supporting popular,
and (i|uite irrespective of whether they attended the
ujeeting or not, and I think it would be carrying this case
beyond any previous decision were we to hold that this
was a treating of a meeting.

The Engli.sh Election Act of 1883, 46 & 47 Vict,
ch. 51, recognizes the correctness of the decisions under

:■{!

SOUTH WATKHL(M).

Ht'c. 4 of thi' Act of lHr)4, 17 .^' \H Vict. eh. 102
similar to hcc. h)2 of our Act, by dt'cljiriii^ tliut
porsoiiH otlu'i" tluiii cnndidutcs wen' not liiil)l«' to any
puniHliinciit foi- tr»'atin<j, and it was expcclieiit to make
Hucli |R'rsons lial)l(', and proceeds to enact that " any
person who corruptly, etc.," instead of confining; it to the
candi(hite. Our Act still retains thi' words " no candi-
date," hut fjoes on to provide that " there shall l)e a
penalty of i:<20()," which lends countenance to the view
that the a^ent leferred to in that section must be
expressly or impliedly authorized to do the particular act.
The section should be amende<l to juake its ujeaninj; clear.
It nnist be manifest, I think, that no action could K
maintained aj^ainst the candidate for the penalty unless
the ajyent had been expressly authorized, an<l it could
scarcely have been inten<led that in the same section one
a«;ent should re(juire to be expressly authorized, whilst
another not so authorized, but who mi*;ht for some
pur|M)se be regarded as an ajjent within the decisions on
the election law, would be 'guilty of a corrupt practice
which mitjht avoid the election.

If it is thoujfht desirable to retain the penalty clause,
it would perhaps be better that it should be provided for
in a separate section.

As it is not nec(!ssary in this case to come to any
decision upon the construction to l)e placed upon the
section, I prefer leavinjr it to be dealt with by the
Legislature.

For tlie reasons given by my brother Osier, I think
the saving clause 172 cannot properly be invoked and the
judgment should be affirmed.

The cross-appeal was, in my view, unnecessary, and
there should be no costs in respect of it.

Maclennax, J.A. : —

The appellant's first objection is that })rorogation
having taken place on the 12th of October, it was not

IMH»VIN(IAh ICr.KrTION.

poin|M't('nt to <U'liv«'r ju<i^inctit within fifteen (liiys tli»ie-
al'tei, contrary to tlie |>roliiliition of sec. 4H ol' ilir Act,
R.S.O. ch. 11. Iti my opinion there are three <,'roun<ls on
which this oh'n'ction nnist he (li.sallowe<l. The tiist ^roniHl
is, that what is prohibited witliin the fifteen duys i>* the
lioMint; of the trial, and I think the <h'liverv of jndjjnient
is no part of the trial within the nieanin<; of the section.
The point is a very ar^«iahle «»ne, hut upon the whole I
think that is the proper conclusion, havin;; regard to the
whole sc<>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, an<l the pai'ties have heeii heard.
By sec. 81 tlu' trial is to Ik* covdinleil hrfnrt' a .hidy;e or
tludt^<vs, etc., and l>y 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 fin<i any
express provision in the Act, ov in the rules, re(piirin<; any
formal jud^^meiit to be j^iven, but what the Judj^es are to
do is pi'escribed by see. 55 and the recent amendment
thereto. They are to d"termine certain matters, and to
certify their detei'mination to tht' Speaker, or to the Court
of Appeal, as the case may be, and the only enactment
which implies that a decision i.s to be j;iven apart from the
report to the Speaker is sec. (50, which provides foi- a ri«;ht
of appeal within eij^lit days from the day on which a
decision is jj^iven. No doubt it lias alwaj's lu'en the
])i'actice for the Judj^es either at the trial, or afterwards.

NoUTII UATKHI.no.

ft5

to |ir(>iiouiic(> 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 ;;roun<l on which I think the ohjcction fails is that
at the conclusion of the trial on the 22n<l of SeptenilH-r,
tlu^ l-ith of Octoher was fixed hy consent for the rielivery
of Ju<l«jnient. That consent was not (|ualitie»| in any way
with reference to a ])ossil)le dissolution in the meantime,
and I think the apjiellant is precluded l>y 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 <lays
named in sec. 48 l)e^an on that day. Kach day tiiat
passed after the adjournment was, by virtue of the Act,
exclmlud from beinj; reckone(l as part of the se.s.sion, atid
that continued until the 1 2th of October, when the House
was pronj^^ued, and tlu; Act cea.se«l to be in force. It
cannot be ar<;ued that, becatise the Act ceased to operate
any lonijer, what it bad already doni^ was undone or
annulled. The Lei;islatin-e had in effect enacted that, so
far as trials wen; concei'ned, the session came to an end (in
the 24th of Au;.Mi,st, although for all otiiei" ])urpos. s there
had been merely an adjournment. It follows that even if
the delivery of judjjment was })art of the trial, it was
competent to pronounce it on the 14th of October.

I now come to the appeal on the merits, and I think it
cannot succeed.

\W'«^

PROVINCIAL ELECTION.

T have considered very carefully the evidence, and the
arj^iiiiicnts addressed to us, and I am of opinion that the
election was properly set aside.

The learned Jud<^eH came to the conclusion that what
was done at Grosser's Hotel at Bridj^eport was not a
providing; of drink to a meetintj of electors, assembled for
the purpose of promoting; the election, within sec. IHl of
the Election Act, bul was a corrupt practice, that is to
say, a case of bribery, within sec. 159. I am, with j^l-eat
respect, unable to a»;ree in that conclusion, and think the
facts brinj; the case within sec. 1()1, and that Scullv was
j^uilty of a corrupt practice in having ordered and paid for
the drink which was provided, and furnished on the occa-
sion of the Bridgeport meeting. The simple facts were
these : There were two election meetings advertised to be
held on behalf of tlie respondent on the evening of the
21st of February, the day before nomination, one at
Bridgeport, at Grosser's Hotel, and the other at Blooming-
dale, 3i miles away. James Scully, who w^as an active
agent of the respondent, called at Grosser's Hotel,
Bridgeport, about six o'clock in the evening on his way
to the Bloomingdale meeting, and stayed about twenty or
thirty minutes, and while he was there told Grosser to
treat the boyn, evidently meaning the persons who should
attend the meeting which was about to take place. He
then went away, saying he would return, but expected to
be too late for the meeting. He did retiirn about mid-
night, enquired of Grosser whether he had given the boys
a drink, and on being informed that he had, threw him
some money, out of which Grosser says he took payment,
amounting to something over a dollar ; he would not say
how much more, but it w^as not ao nnich as two dollars-
The meeting was held in the sitting-room and drawing-
room of the hotel, throw^n into one by folding-doors, and a
hall-way separated these rooms from the bar. Before the
business of the meeting began, about twenty or twenty-five

NORTH WATERLOO.

a
Ihe
Ive

persons were assembled in the bar waitintj for tlie n»eetin<j,
and these were all treated l)y Grosser either voluntarily or
at the request of Janson, an atjent of the respondent.
There were from forty to fifty persons at the meeting,
and when it was over, from twenty to twenty-tive of the
persons who were present pa.s.sed into the bar-room and
were there twice treated b}^ Grosser, and these are the
treats for which he says lie was paid by Scull^'. After
those treats, the same crowd, or many of them, went very
nnich in a body to another hotel, called Albert's, a few
Innidied yards away, and were tlu-re treated again : it is
not very clear by whom, and it is not immaterial that the
respondent was with the crowd and accompanied them to
Albert's and afterwards returned with some of them to
Grosser's. Now, what the statute forbids is the providing
or furnishing drink to any meethnj of electors assembled,
etc. There can be no (juestion that this was such a
meeting as the statute describes, and I feel compelled, by
a consideration of the facts which I have stated, and the
construction which has been put upon the enactment by
the decided casesj, to hold that it has been violated. I
refer to the Dundas Case (1875), H.E.C., pp. 208-10,
per Spragge, C. ; East Pete rboro ugh Case (1875), ib. at
p. 251, per Draper, C.J. The Presrott Case, 1 E.G. 88, jier
Patterson, J. A., at p. 91, per Osier, J. A., at p. 116
(affirmed on appeal). The MiisJcoka ami Parry Sound
Case (1884), ib., j)e»' Patter.son, J. A., at p. 214, and on
appeal, per Hagarty, C.J., and Burton, J. A., 220-239. At
page 288 the present Chief Justice u.ses this language : " I
should say, therefore, that a very wide meaning should be
given to the words of the section with the view to prevent the
mischief, and that until the body so gathered together had
actually separated, and had resolved itself into its original
elements, so to speak, it would be a very dangerous
experiment for a candidate to indulge in a general treat to
the people thus gathered together, and I think it as well
13 — VOL. ir. B.C.

l^mm

PKOVINCIAL ELECTION.

that it (should be generally known that the Courts are
disposed to place a very wide construction upon the woi'ds
with a view to suppress the mischief." In the case in
which that language was used, what happened was a good
deal like what was done in the present case. The business
for which the meeting had been called came to an end,
and " nearly all those present crossed the hall and went
into the bar-room. The respondent followed, first inviting
those who remained ... to join them ; and then in the
bar-room, he invited them all to drink, which they did, the
respondent paying for the li(|Uor " (p. 214). With refei<'nee
to that state of facts, the language of my brother Osier in
the PreHcott Ctuse, 1 E.G. at p. 11(5, is ([uoted with approval :
" Without attempting to lay down any inflexible rule for
the circumstances of each particular ca.se as regards the
extent of the treating, the question mu.st, in my opinion,
always be whether the entertainment has been furnished
to the meftivg, that is to say^ to the general body of elec-
tors composing such meeting, . . . a:<d while, as a body,
such electors remain at the place of meeting or elsewher*'."
Now, here we have the exceedingly imj)ortant fact that
Scully iiad pieviously arranged with ()ro.sser to tri'at the
boyn. That, obviously, meant th(! persons who should
attend the meeting. We see what (irosser did in pursu-
ance of the arrangement. He is afterwards asked by
Scully whether he had done it ; he answers that he had,
and is paid for it by Scully. It is said that there were
forty or fifty at the meeting, and that only from twenty
to twenty-five were in the bar-room when the treats were
given. But it is also shewn that the bar-room was full ;
appai'ently from twenty to twenty-five were as many as
could be conveniently admitted. I think it can make no
difference that all did not go in. Some might object, and
others might not care to accept the treat, but all who were
willing had the opportunity, and a large number did nccept
the invitation, and were treated in a body. Suppose th.e

XOHTH WATKHLOO.

as
no
11(1
ere

'I't
the

armn<.^''inent had been to j^ive "the boys" a supper.and tables
luid been hiid in an adjoinin*; room, or an adjoining; house,
for twenty or twenty-tive, and as nianv' as could be aceotn-
niodated passed from the nieetinij and sat down, in my
judtrment it could not be held that such an act Mould not
be within the enactment, and I can see no ditle'onco
between the case so supposed and the present. In my
jud<;ment, therefore, the res|x)ndent's a<jent Scully was
properly found guilty of a corrupt ])ractic(^ at I^rid«jeport,
but on a different j^iound from that upon which the same
conclusion was reached by the learned trial Judires. That
makes it uiuiecessary to consider the other cast' of treatinjjf
at \Vinterl)ourne im the 17th of February, for both at the
trial, and oji the arjrument before us, Mr. Avlesworth
admitted that if either of the ca.ses of treatinj^ was held to
be established, he could not claim the benefit of sec. 172,
inasmuch as a number of other similar cases of treatinj;
had taken place.

I am therefore of opinion that the appeal of the
respondent Lackner should be dismissed.

I am also of opinion that even if we had come to a
different conclusion on the (piestion of treating, the two
charges of bribery which were established at the trial, and
as to which tlusre was no appeal, could not, luider all the
circumstances, be held to be of such tviffing nature, or of
such trifling extent, that the result could not reasonably
be supposed to have been affected within the meaning of
sec. 172. The agents who committed those a^'t.j of bribery
had been very acti\'e supporters of Mr. Lackner, aiid one
of the bribes, although it was only a sum of $2, was paid
out of a general election fund to which the respondent
was a contributor to tlie extent of !?250. Neither the
respondent nor the agent was asked to explain or palliate
the act. The majority was (io out of a total vote of about
5000, and I cannot regard such a bribe as one of a tritfing

npi-^

100

PROVINCIAL ELECTION.

naturo witliin the ineaiiint^ of the section. The cross-
appeal, however, seems to have been unnecessary.

Moss, and Lister, JJ.A., concurred in the judgment of
OSLEH, J. A.* A. H. F. L.

*The chiiiges against Hobtjrts for l»i iheiy of Wossler, and against
tlie latter for accepting the lirihe, were afterwards, on *27th April, 1900,
ti'ied before the Jndge.s whr) had tried the election jietition. Huth
|)arties were fonnd guilt\', and held to he liable to the statutory l>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><oi'ialion — Sarhuj C/ansc — Election Aft, xccx. 1(J4 (•)■,
ics, 17. K

It was cluirged that a j)erson had voted at the election, knowing that he
had no right to vote, l)y 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 there by the County Judge, notwith-
standing an appeal, and he believed that he had, and did not know
that he had not, a right to vote : —

Held, artirmiiig the decision of the trial Judges, that a corru|)t |)ractice
under sec. I(»8 of the Election Act, R.S.O. 1807 ch. W, was not estab-
lished. Under that section the existence of the mala nitn^ on the part
of the voter, "hioiciny that he has no ritjlit to vote," not merely his,

EAST EUilS.

101

knowledge of facts u[)on the legal construction of which that right
(lejHjnds, must be provetl. The offence does not de|)en(i n|K)n his
having taken the oath ; it may l>e |>rove<l a|>art 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.

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/</, that sec. 172 of the Election Aet could not be applied to sjive the
election.

The facts arc statod in tho jud^^iiieiits.

Aylf'sv'orfh, Q.C, and H. A. (rnint, for tlic ]M'titioner.

W<dl(uc A'cshitt and J'J. A. Miller, for the respondent.

OsLEH, J. A. : —

This petition was tried before my brother MacMahon
and myself at St. Thomas on tlie 28th, 2!)th, .SOtli Novem-
l)er, and 1st Decembei-, 18!)8. The particulars contain
nearly one hundred charges of corrupt practices, a lar^e
number of which were tried out, and all of whi( i were
dismissed except No. .S4, wliich was proved as to the
offence but not as to the a«:fency, and Nos. 12 and 18, 2G,
27, and 80, No. 3J), and a charge which the petitioner was
allowed to add by amenflment. Judgment on these seven
charges was reserved until to-day, and we now proceed to
dispo.se of them in their order.

No. 12 : that on the day of the election Hugh Douglas,
formerly of the township of South Dorchester, but then
and now of the township of Dereham, in the comity of
Oxford, an agent of the respondent, voted at the polling
station No. 1, South Dorchester, knowing that he had no
right to vote thereat, by reason of his not being a resident
of the electoral district.

No. 18: that John Eden, an ajrent of the res,o.j''.' ^ ;,
induced and procured said Douglas to vote, he, said » ,v!
knowing that he had no right to vote by reason of liis
being a non-resident as aforesaid.

Both of these charges are founded upon sec. 168 of the
Election Act, R.S.O. 181)7 eh. 9, which enacts* " Every
person who votes at an election knowing he has no right
to vote at such election and every person who induces or

EAST ELGIN.

103

pr(X'uri's any othei- peison to vote at an election, knowing
tliat such other person has no right to vote at the election,
shall he guilty' of a corrupt practice, and shall be liable to
a penalty of SIOO."

The voter was a young man of 26 years of age. He
was married, but continued, notwithstanding, to reside, as
he had always done, with his fathei- in South Dorchester,
and his wife ivsided with her mother in a difi'erent
electoral district, as their circumstances did not permit of
their taking up house together. He from time to time
made brief visits to his wife at her mother's house, staying
perhaps a week on each occasion.

At the time fixed by statute, viz., 15th February
(As.sessment Act, sec. 55), for beginning to make the
as.sessment roll for the township of South Dorchester for
18{)7, on which iie was entitled to be entered as a person
(pialilied to vote (sec. 8, proviso (1) of the Election Act),
he was a resident of the Province. He was also then a
resident of and domiciled in that municipality (sec. 8,
proviso 2). He was also at the time of tendering his vote
a resident of and domiciled within the same municipality,
and therefore within the electoral district of East Elgin
(sec. 8, proviso 2).

It may admit of cjuestion whether he had, within the
meaning of sec. 8, proviso (1), .so resided within the Province
for nine months next preceding the 15th February, 1897,
or for twelve months next preceding the time up to which
a complaint might have been made to the County Jmlge,
under sees. 17-20 of the Voter.s' Lists Act, R.S.O. eh. 7, to
insert his name on the voters' lists. In the present case
this date is said to have been the 2()th July, 1807, though
it was not so proved in fact, as the date of posting uj) the
voters' list prepared by the clerk of the municipality undi'r
sec. 6 of the Voters' Lists Act, which depends upon the
date when the assessment roll has been finally revised
(Assessment Act, sec. 71 (1^)), was not shewn. See sec. 8,

104

IKOVimiAL ELFXTIOX.

Votois' Lists Act. There is no doubt that, althou^^h his
home and I'esidence, usinj; the latter expressic^n in its
le«;al si^jniHcation, was in South Dorchester, the vot«'r had
for a considerable part of either period prior to the month
of Octobei', 189(), been absent from the Province on a
temporary visit to some friends in the State of Wisconsin,
U.S. ' >

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-
stan<ling an appeal, and both he and the scrutineer Eden
deposed, and I believe theni, that they believed that he
had, and did not know that'he had not, a right to vote at
the election. Had the Legislature intended that the
taking, however honestly, of an oath (Form KJ of the

EAST EUJIN.

105

Act) uiitnu! in jx^int oi fiict, whotluT as stntiiijj a l«'i;al
eoncluHion from facts or a8 mi.sun(k'rstaiulin«; tin* words
" n'sidt'iico," " doiiiicili!," etc., hIiouUI coiiHtitutc tlu' corrupt
practice indicated by sec. 108, they would probably bave
said so. But this they liave not done nor alhidv'l a\
any way in that section to the form of the oath or the
section under which it may be administered (sec. !>M).
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<i mens on the part of the voter,
" knowint/ that he Ii<(m ho right to vote," not merel}' his
knowled«;e of facts upon the legal construction of which
that right depends. The offence does not depend upon his
having taken the oath ; it may be proved (|uite apart
from that. But, also, the fact that he has taken the oath
does not, even if it be shewn in point of law to be untrue,
necessarily prove that the offence has been connnitted.

The decision in the Huldimand Caxe (1888), 1 Elec.
Cas. 520, which was relied upon for the petitioners, went
upon the somewhat corresponding section of the Dominion
Act, the language of which, however, is different from
ours, and may admit, as it did, of a different construction ;
although, if I may with all respect say so, I prefci- the
opinion of the dissenting Judges to that of the majority.
I have been a party to the construction I now place
upon sec. 108 in several cases* — Inter (did, the Kingston
election, 1891 or 1892, and I tliink also at the trials of
the North Bruce and South Bruce election petitions about
the same time, though I am unable to refer to the opinions
I then wrote on the subject in conse(jUence of the destruc-
tion of my note-book at vhe Grand Trunk Railway acci-
dent at Weston three or four years ago.

*See the South Perth Election Case, ante j). .SO. — Hkp.

14 — vol.. III. K.c

106

PROVINCIAL ELECTION.

Tlu'Hc two charijcH tluM'cloiH^ on^jlit, in my opinion, to
bo (lisniisHod. I may add that thci-*! was no evidence
whatev«'i" of a^^eney in res|)ect of chartje No. 12.

(yhar^cs 20 and 27 and charge liO and the ad<led charge
may conveniently he taken togisthei-, as tliey are all charges
of bribery in one iorm or other by one W. K. Luton.

I am of opinion that the two latter are not made out.
Charge IJO alh^gew ))iibery of one Kgbert P«'ttit by paying
him $W for a cow worth no more than S?2JJ, the difference
of !$7 biiing paid to induce Pettit to vote for the respon-
dent. I am not satisfied that the aninuil was not in fact
reasonably worth the former sum, or that Pettit's state-
ment as to Luton having said to him, when he first
proposed to sell the cow, that he Would give him l?-^0 if he
would vote for Brower, which would 1. iive lier worth. $23,
can, in view of all the circumstances, be relied on. I find
the charge not proved.

So also as to the added charge : an offer to give one
Duncan Doan time ()n a small note he owed Luton, if he
woul 1 stay at home and not vote. I disbelieve Doan's
evidence as to this, and the charge is categorically denied
by Luton, as indeed is also charge 80.

I would, therefore, dismiss both of these charges.

Charges 2() and 27 are of a more formidable charactei*.

No. 20 is a charge of bribery of one William FoUock by
hiring him to work for a few hours on the polling day and
paying him S5 therefor, but which payment was in reality
made to induce him to vote for the respondent or to refrain
from voting against him.

No. 27 is a similar charge in respect of William
FoUock Junior, a son of the person mentioned in charge
26, by hiring him to work at Luton's hou.se on polling
day and paying him $o, in reality to refrain from voting
against the respondent.

The following may, I think, be taken as a fairly
accurate sunnnary of the evidence on these charges.

KAST EUJIX.

107

Ing

Luton knew that Fullock ami \\\h sini alwjiyM, an he
Hays, " vott'd reform."

Kollot'k Hciiior saiil tliut Luton met him a (hiy or two
or tlirec before the »'lection, at, I think, th«' shoj) of one
Houghner, where several peojjle were gatliered, and some
desultory " election talk " "ras going on. liUton spoke to
him about working for him He had done .some jobs for
him some years l)eft)re — n.ot recently. Wanted to know
what he would take to work for him on the following
Tuesday (1st March). P\)ll{)ck .said So, which [..uton .said
he would not give. On the night befor*' the polling day
Luton, with one Ni'l.son IVnhale, came to his boust? about
ten p.m. Witness was in bed, but came down, hearing
talk i^oinir on. Luton asked him if he had come down in
his price. He .said he had not. Luton then said he
wanted him to go to look at a drove of cattle at John
Black's, near Belmont, and let him know what they were
like. He (Luton) ju.st "picked on" the following (hiy,
saying " to-morrow." Luton paid him 85 that evening.
Witness had "been in the cattle business all his life," but
admitted that he knew no more about catth? than any
other farmer, and his business was not that of a buyer
or dealer in cattle. Still, he thought himself a pretty
gocd judge of them. He went to Black's the next day, a
distance of six or seven miles : drove his own horse ; left
his house about 1 p.m., and returned about 4 p.m. There
was no reason why he should not have gone to the poll
before he left or after he came back, or on the way to
Black'.s. He did not vote. When he got to Black's he
fo'und that Black had no cattle t(i be looked at, having
sold the last he had some days before. In " ordinary
time " SI. 50 would have been enough for what he dio,
though, if he had " seen the cows and Judged them, S5
woidd be little enough." He reported the result of his
journey to Luton about 5.80 p.m. Had not heard Luton
talking election at all, and nothing had been .said about
his vote.

pr^

lOH

l'lt()VIN('IAL KLECTION.

Hluck .said \w had had a few cattle foi* sale in Fehniarv
or March, hut never any talk with Ljiton alM)Ut thou or
any dt'alinj^s with him. !:*2 would he sutticient i)ay I'or
^oin<; out and jud^fin;; such a herd a.s he had, thou;,;h J*o
would not he too nnich I'or any oni; who went out to huy
them. This I understood the witncHS to mean a.s a sort of
conMniHsion.

Nelson I'enhale said that FollocU }^ot .some money from
Luton — he did not see the; amount — to j;o ovei- to Black's
to huy cattle the nr.rf tlai/. He thouj;ht one or two
dollars would l)e suHicient pay, thou;,di he had known a
hi;;her price paid as a commission per head.

t'har^t! 27. Kollock senior said that alter his con-
versation with Luton when the (piestion oi' his own
employment was fii'st mentioned, Luton asked him wheiv
his son, Wni. Follock jiutior, was, as he wanted to see him.

Folloek junior, wIkj reside<l with his father, s^iid that on
the day het'ore the election Luton met him at the black-
smith's shop and asked him it' he wanted work. He
(Luton) said lu' had a load of corn to unload. Witness
said he did not know that he did or whether he would >;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

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.

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 aske<l for it.
I have given this evidinice a great deal of considera-
tion, and am o)>liged 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<l aside. That,
however, was not thought of at niglit, but the y<MUig man
was employed six or seven miles away from liis polling
place to do women's chores about the house, in my
opinion, simply for the purpose of getting him away and
noi/ because there was any sp"cial necessity for Ins being
there. He was given just wliat he asked for, .^5, aVjout $4>
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

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

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" '

PR< ) V F N'C I A L E LECTION.

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<fents, either as I'et^ai'ds
his or their knowledt^e of the fact that he was working or
proposinj^ to woi-k on l)ehalf of the candidate, or as
rejrards any actual authority conferred upon him to do st).
Much reliance was placed on the evidence of what took
place at the so called conuuittee meetin<>;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.

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<l<(t',s may Feel themselves at liherty to decide
differently; hut upon tiie whole, alter a j^ood deal ol" con-
sideration, I am firmly of tin; o[)inion that the ri«(ht
conclusion is that Tayloi- was a person for whose acts the
candi(hitt! is not responsil)le.

The condition which appeal's to me essential to
establish a<;eney on the part of the person chartjed witli a
corrupt practice, I have already referre<i to in dealinj; with
.the FoUock charjjes, and I think it is wantin*; in i-eference
to this char«(e, as I have held it to be in those. The
respondent was ij^noi-ant that Taylor was tlie local chair-
man or vice-president of the county orj^anization, if indet'(l
that be important, as that association was not ehart^ed
with any duty in coiniection with the election, except as
regarded the selection of a candidate. He was in that
respect only in the position of a person who mi<^lit have
been appointed as a dele<;ate to the nominating; convention.
Neither the candidate nor any person proved to be an
aj^ent of his is shewn to have been aware of the existence
of the " Conservative Club," which, apart from the fact
that they hired a room, appears to me to liave been ((uite
as much a self-constituted connnittee as those I have
formerly dealt with. Except in j^oin*; o\'er the voters' Hst,
Taylor did no work in connection with the election ; no
other duties were assi<;ned to or assumed by him ; and
there is no proof that the candidate, or any other per.son
for whose acts he was responsible, knew that he had even
done this. I cannot hold that his presence as chairman at a
meeting; called by the candidate makes him an aoent. He
was chosen by the meeting, and it seems to me it would
be going very far to say that such a circumstance implied
any authority from the candidate to act as his agent
thereafter. ■

16 — VOL. ni. E.G.

122

I'KOVIXCIAL KLKCTION'.

IMool' of Taylor's iijjcncy lailiii;,', tliis cliiirm' niUHt also
l)t' <lisiiiiH.m'(l,

W'f tlicrcroj't' hold tliiit tlic election iiiid n-turii com-
plaiiHMJ of ail' a valid election and icturn, and flisniiss the
petition with coHts.

1\FacM.\II()N, .1. ; - *

I a<;ree in the jud^^nnent hy my learned brother (Xsler,
an<l have to add but a woi'd re;rardin«; thi^ Tayloi' c'har;;e,
to Avhich I eav(! much consideration, and, after fully
siftin^f the whole evidence relatine; tiieroto, conchuh; that
it falls short of what would warrant me in saying that it
ma<lu him out an aj^unt for the respondent.

The petitioner a[)pealed, and liis appeal was heard in
the Court of Appeal on the 18th September, 1890.

Aylf'sirortli, Q.C., and K. A. Grant, for the p'etitioner.
WaUacc Neshitt and FalconhrUhje, for the respondent.

BURTOX, C.J.O. : —

The only points remainin<; for decision are tlie agency
of Luton and Taylor. The evidence of corrupt practices
was clear, and no jji-ounds have been shewn for interfering
with the judgment of the learned trial Judges in that
respect.

T agiee that great caution may be necessary in apply-
ing some of the decisions in the English cases under the
system generally prevalent in this Province as to the mode
of .selecting the candidate and the machinery for conduct-
ing the contest, and I agree also in the remarks of the late
]\lr. Justice Patterson, which I (juote as follows: "If
1 find that a candidate who takes tlie iield as the
nominee of a party that acts through an organized
association, whether the organization is strict and formal,
or loose and elastic, depends upon the efforts of the
as.sociation to promote his election, or relies upon such

KAST KI,(il\.

I '2'.\

crtorts.'I iiiust, MH I imdt'i'.stimd tlir |)i'iiiciplfM of tin- law,
hold all ixTNoiiH lU'ci'cditfd hy tin- iisMociatioii to Itf tlif
a^i'iits of tilt- (viiididatc :" Ihihl Inio ml i'lisf, I Kluc. ("as.
at p. 5!)4.

I am also (|uitt' alive to the f\)urtH Ix'iii^ astute to
iiu'ot and cope with what has hecn (jcsfrihi'd as the ever
iiicreasiiin- ingenuity of many of those who maiia<;e election
contests, hut, to use the Ian<;ua<;<' of that eminent .lud»i;e,
the late Mr. .lustice Willes, no amount of uvidenee ou«;ht
to induce a judicial tribunal to act upon mere suspicion
or to imaijine the existence of evidence wliich mij;ht liave
been jj;iven, but which the party interested has not thouf^ht
proper to pro(hice, and to act upon that supposed evidence
and not u{)ou that which really has been brout^ht forward.

The function of the association inferred to in this case
seems to have been confined to ask in*; for the selection of
delei^ates for each pollini; subdivision — in each township
two or tiiree in numher — who meet on the call of the
president and secretary-treasurer, by advertisement, and
select a candidate, and there, so far as appears by the
evidence, their duties end. There is no evidence of their
meeting subsecpiently, or takint; any part as a body in the
promotion of the election of the candidate so selected.
It is not shewn that Luton was a member of the associa-
tion, and he was not a dele{:;ate to the convention.

Upon Mr. Brower btsinjif nominated he was called in
and made a brief speech acceptint; the nomination as it was
unanimous, and adding that he would do all in his power
to be elected, and with their help was confident of victory.
Luton was not a delegate, as 1 have said, and was not
present when this speech was made. .Subsecpiently, on
the same day, a public meeting was held at which the
candidate again spoke ; Luton was present part of the
time, but not when the speech was made. It is unnecessary-,
therefore, "^o consider how far, if this association had been
shewn to be one for the promotion of the election and

> :

124

PROVINCIAL ELECTION,

not .simply for the sfilection of the candidato, it could bo
r{!<!farded, as has been sonK'tinies contended, as in the
nature of a partnersliip, so as to make the individual
njcmbers of the association, as well as the association,
agents of the candidate.

The learned Jud<^es have found as a fact that there
was no evidenc(> 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.

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<lent's counsel. The charges against those persons
wore a violation of sec. 104 (2) of the Klcction Act by
providing money to l)e used by one Kudolph Long in
betting oi" wagering upon the result of tlu' election. Tlie
evidence was, that, while the contest was going on, Long-
came into a shop where these three persons happened to
be, and said he had been challenged by a supporter of the

EAST ELGIN.

133

Liberal candidate to bet upon the result, and wanted some
money wherewith to accept the challenije, whereupon each
of the tliree persons named gave him a sum of money —
ten doUars each — ^for tliat purpose. No bets, however,
were ultimately made, and the money was returned a few
days afterwards. It was contended that, inasnnich as no
bets were actually made, and as it did not appear whether
the bets were to be Long's bets or those of the three
persons advancing the money, the transaction was not
within the section. The learned Judges have held, and 1
think rightly, that the mere providing of money to be used
by another in betting on the election constitutes the
offence intended by the Legislature, whether a bet has
afterwards been made or not. I think the judgment of
my brother Osier makes it clear that such is the proper
construction of the Act.

The corrupt practices having been established, the
further question is the agency of the several parties who
committed them. Agreeing as I do with the very full
judgment of my brother Osier, I might content myself
with adopting it ; but I shall state briefly how the matter
has presented itself to my own mind on a careiul perusal
and consideration of the evidence.

First, with regard to the agency of Luton. The
authorities with which we are so familiar, and which have
been so often (juoted, establish that agency must be
authorized, either expressly or by implication, either by the
candidate himself or by some other person first authorized
by him. There is here no evidence of personal authoriza-
tion, either express or implied. The respondent and Luton
were personally well acquainted. They both resided in
the same township (Yarmouth), of which Luton had once
been a councillor. Brower had represented the constitu-
ency during the previous term of the Legislature, and
Luton had been an active supporter of his during that
election. Luton was a strong Conservative, and Brower

134

I'KOVINCIAL ELECTION.

hoped or expected or believed that he wc^uld support him
actively on this occasion. There had, however, been no
rerpiest from Brower or any one on his behali' for Luton's
support. They met only once «lurin«( the contest, when
nothing of cons(M|uence passed between them, and Brower
had no knowledjje of what, if any, part Luton was taking.
Upon these facts, I think it is clear that there was no
authority, either expnjss or iniplicjd, given by the respondent
personally to Luton which would constitute agency. Luton
was himself a person entitled to vote, and therefore entitled
to take an active part in the election without re(juest or
authority from any one ; and no inference of agency can
be drawn from the mere fact of activity, no matter how
great, (iither in the former election or in the one in
(juestion. This right of his as an elector is therefore (juite
sufficient to account for his presence at the three meetings
in his own polling subdivision, including the one at his
own house, and also for his presence at and presiding over
one of the respondent's meetings, and for the fact that he
canvassed a few voters. There is no presumption whatever
that he did these things as agent for the respondent.

It is, however, contended tiiat Luton was a member jf
a Conservative association for the riding, that the election
was, with the consent and approval of the respondent,
managed and conducted by that association, whereby its
members, including Luton, became his agents, and for all
whose acts he is responsil)le. After reading and consider-
ing the evidence respecting this a.ssociation, I agree with
my learned brother Osier as to its vague, shadowy
character. Tliere was no election or fee recjui-site to
constitute membership, and any person residing within the
constituency, calling him.self a Conservative, might consider
himself a member. There seem to have been a president
and secretary, and a chairman for each municipality in the
riding, but how or by whom they were elected does not
appear. The only function which we find this associa-

KAST i:L(ilN'.

135

tioii to Imvc |M'i'r()nii('(l is t\u\ HvU'vX'uni ol' cundidiitcM I'or
ParliiiiiK'nt and tliu Lcifislaturt'. Tlmt was done hy u
convention, called hy the pn'sidcnt, of one, two, or thnse
deie<^ateH from each ])()llin<; snh-division. The respondcait
was soh'ctod as th(! candidate of the Conservative party at
such a convention, held ahout four months hefoi-e the
election. Tt is said that A. A. Luton and one Padden were
dele<;ates from the township of Vai-mouth, but how they
were chosen or by wliom nominated does not appear. It
is said there was no meeting; for that purpose in the sub-
divisi(^n. W. F. Luton was not a deleoate, and I do not
find that there is any evidence that he was even a member
of the a.ssociation. Even if bein<^ a Conservative voter
wan sutKcient (lualiticatiop for membership, it still re(]uired
his consent to become one. It seems that after the
respondent was nominated, the convention became mei'<(ed
into a public meetin<;, which had been called for the same
day. Luton was present at this meetin<j for some part of
the time, but not durino- a speech made by the respondent.
It does not appear whether this was a pu))lic meetin<^ of
11 v( ters who chose to attend, or of the members of the
association : but, which ever it was, we hear no moi'e of
the association or its members, or of any act afterwards
done by either in furtherin"' or promotint; the election.
For anythino; that appears, when the convention had
selected its candidate, its functions came t(j an end, and
the association was heard of no more. That beint^ so, I
think it is in»possible to say that Luton became juid was
an ao-ent by rea.son of membership in, or any oil;, r con-
nection with, the association, and I think my learned
brothers were rijrht in holding; that no a^-ency for the
respondent was established on the part of W. F. Luton.

It was not contended tliat there was any evidence of
agency on the part of Fer<5uson or Day, but it was urged
that Alexander Taylor was an agent, by reason of his being
an otticer of the association as a vice-president or chairman.

130

I'HOVINCIAL ELECTION.

Tlu! samo rcasoniti^j wliieli T havo used in Luton'H case
applies in ^rcat part to that of Taylor. The a.ssociation
(lid not profcHH to assist the respondctjt in his eanvasH, and
Taylor was neither a delegate to, nor present at *ht'
nominating convention. A duh or eonniiitti'e soei j
have been t'onned at Port Stanley, where he lived, for the
purpose of prouiotinjj the election, of which hv was a
nieiiiher ; but it was not .shewn that the respondt'nt was
aware of the existence of the club, or that he in any way
relied upon its action. There is one piece of evidence
tending to establish afjjency, but which I think is not in
itself sufficient. It is what occurred at a nicetini; held by
the respondent at Port Stanley, and addre.s.sed by him.
Mr. Taylor was pr(;sent at that meeting;, and presided over
it as chairman. He admits havinij made a little speech to
the meetintj introducing and commending the respond nt
to the people. He had met the respondent in the ^

before the meeting, and shaken hands with him, and assiv^J
him how things were going. That is all. I think it
would not do to hold that to be sufficient evidence of
agency. Tn the North Victoria Case (1875), H. E. C. 671,
it was held by Wilson, J., and affirmed by this Court, that the
mere presiding at a meeting, and a good deal i.iore, was
not sufficient to establish agency.

I am therefore of opinion that the appeal should be
dismis,sed.

Finding that three members of the Court have come to
a ditt'erent conclusion on the (piestion of agency, it has
become nece.s.sary to consider the effect of the saving
clause, sec. 172. Having examined the decisions on that
section, I am constrained to come to the conclusion that
it is inapplicable in this case, and that tlie election must
be set aside with co.sts.

Moss, J.A. :-

The respondent has not seriously disputed that for a
number of years before and at the time of the election of

EAST ELOIN.

l.'iT

1M!)7 there wuh in iietivt! existence an origin uzation known
as the EiiHt Kl«;in (\)nserviitive AHHociution.

In times when no elections were |)en<linj; it evidenced
its existence by im annual nicetinj; tor the election of
otticcrs, at which there were elected a president and a
Necretary-tr«!asurer lor the whole ridin<; or electoial divi-
sion, ancl to these was confided the »,^'neral niana»jenient «j1"
its afi'airs. There were also vice-presidents elected, oiu' in
and for each municipality in the ridin<j; and the president,
vice-])residents, and secretary-treasurer thus elected were
the central board or executiv«i of the association.

When necessary, meetin»js of the association assembled
upon the call of the president and secretary-treasurer.
Tiiere was no niemV^ersliip fee, and sucli funds as were
received by the secretary-treasurer were derived from
collections made either at the meetin<js or at other
times when a process described in the evidence as " passinj^
round the hat" was re.soi'ted to.

One of the principal objects of the a.ssociation was
seeing that in election times a candidate representing the
political views of the Conservative party was brought
forward, and promoting and securing his return as the
member to represent the riding.

With tliis object in view a convention of delegates from
each polling subdivision was summoned. The vice-presi-
dents of the districts, acting upon the direction of the
central authorities, notified the chairmen of the polling
subdivisions to appoint delegates.

Notice of the time and place of the meeting of the

convention of delegates was given by public advertisement

stating the object and purpose for which the convention

was called. It was well known and understood that the

person to be chosen by the convention was to be the party

candidate and was expected to receive the support not only

of the nominating delegates but of the association as a

body.

18— VOL. in. E.c.

^m^

138

PROVINCIAL ELECTION.

In tho case of the election in (jnestion this was the
course pursued. In the latter part of the year 1897 it was
known or believed that in the year 18})8 a jieneral election
for the Le<(islature of the Province would be held, and it
seems to have been considered desirable to place in the
field a Conservative candidate without vvaitinjij until the
formal ainiouncement of the issue of the writs. A con-
vention of delegates, appointed and summoned pursuant
to notification in the usual fashion, was held at Aylmer on
the 27th October, 18f)7.

To this assemblage the respondent, Mr. Brower, did not
offer him.self as a candidate, nor had he before the meeting
offered him.self as a candidate to the electors of the riding.
He appears to have had no intention ol offering him.self as
a candidate or of contesting the riding, miless it happened
that the convention choo.se him as its nominee. He was
made the choice of the convention, and because of that he
accepted the call and became the candidate. In his speech
of acc(!ptance he expressed the hope that he would receive
the .support of the meeting, and it is not unfair to infer
that he received assurances to that effect that were (|uite
satisfactory to him.

After the nomination and acceptance there was a still
larirer <ratherini>" 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

■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.

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

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.

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

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

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<ir the Court of Appeal for
Ontario, pur.suant to R.S.O. IHOT, ch. 7, sec. 38.

The (juestiou was with reference to the revision of the
V'^oters' List for the cit}' of St. Thomas for the year 1898.

The municipal council of the city of St. Thomas in
1800 passed a by-law, under sec. 52 of ch. 193 of the
Revised Statutes of Ontario, 1887, providing for the
taking of the assessment of the .said city between the 1st

ST. THOMAS.

166

day of July and the 30th day of September, and for the
return by the assessor of his roll on the 1st day of
October in each year, and for its final revision by the
court of revision by the 15th day of November; and, in
case of appeals therefrom, for the final return by the
Judge of the County Court by the Slst day of December.

The council of each succeeding year, including the
year 1898, adopted the assessment of the preceding year,
as the assessment on which the rate of taxation for each
succeeding year should be levied, and the Voters' List -of
each year since 1890 was based upon the assessment roll
of the preceding year.

The date of the final revision and correction of the
assessment roll, upon whicL> 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.

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.

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),

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.

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-/<l, that it was competent for the Judge to hear and receive parol
evidence as to the form and eft'ect of the notice in question 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.

Stated case heard under the statute. Tlie facts appear
in the judonient.

J. R. (\irtwi'igld, Q.C., for the Attorney-General for
Ontario.

W. J. Moore, for certain voters.

MAHMOliA AND LAKK.

h;:i

Moss, ,1.A.

Case .stated by tlic junior .liulf^jc (»!' the county oi"
Hastings and referred hy the Ijicuteiiant-Oovernor in
Council undei- sec, .3K of the Ontario Votius' Lists Act,
R.S.O. lHf)7 ch. 7.

A W-^'^ of appeals containing a large numher of naine.s
to be added to the vot»!rs' lists for tlu' intuiicipality of the
Townships of Marmora and I^akf was piepared, and a
voter's notice of complaint in the statutory form wa.s
signed by the objecting voter and attachetl to the li.st of
names. The document in this I'oim was handed to the
clerk of the Jiiunicipality iti due time to comply with sec.
17 (1; of the Voters' Lists Act. At the sitting of the
Court to hear complaints against the voters" lists the clerk
produced the list of names, but not the notice of complaint,
which was attache*! to it M'l-.en he received it. He admitted
under oath that at the time the list was place*! in his
hands, and for s*)me time subse(|uently, there was attached
a voter's notice of complaint, in the form re*(uire*l by th*-
statute, dated, and properly signt'd by th*' c*»mplainant, and
stated that the first time the absence of th*' n*)tice of com-
plaint was notic(?d was the night befor*- the day of th*'
Court, and that he had nuule dilig*'nt s*'arch in his office
and the same could not be foun*l. It appeared that h*'
kept the original lists of app«?als very carelessly in a
pigeon hole in the otHce of his rlrug stor*', wlier*^ he usually
kept mimicipal papers, and that it was a plac*' to which the
public had access. Other evid*'nc*' undei- oath was received
to shew the preparation of th*' lists atid iiotice, the signing
by the complainant, and the delivery to the clerk, in prop*'r
form and within the time prescribed by the statute.

It was objected that the list pr<j*luce(l in Court contained
no signature of the complainant, and that no voter's notice
of appeal Vjeing ju'oduced, there were no appeals before the
Court. It was furthei- objected that, the list coming from

ii il

1({4

HK VoTKKS LISTS.

Hi r; I

r:i

the liaiul.s of the flerk ami Ix.'iiij; iinpcrfoct. viM'hal tivirlonec
could not !)(' givon to ainoiul it.

TIr' (jiKistion Mubniitted i.s: Can a complaint in regard
to a voters' list be heard without the papers before the
.ludg»( containing a written notie*; of the complaint and
intention to apply to him, it being shewn hy parol evidence
that such notice had been left with or given to the clerk
at the proper tinx; but sub.sef|uently lost !*

By f^''*'- 17 (I) of the Vottsrs' Lists Act it is made the
duty of a voter or person entitled to be a voter making a
coniphiint of any error or omission in the li.st to give to
the deik of the municipality, in the manner and within
the tiiiK! prescrib(!d, notice in writing (Form 0) of his com-
plaint and intention to apply to the Judge. Upon receipt
of a proper notice it bticomes the duty of the clerk to take
st(;ps to notify the Ju<lge and arrange for the holding of a
Court to hear the complaints and to publish a notice of the
time and place of holding the Court in some newspaper :
sec. 17 (3) (5). Nothing further is re(|uired to be done by
the com])lainant in order to perfect his appeal, and he is
entitled to assume that at the sitting of the Court the list
and notice of complaint which he lodged with the clerk
will be produced in the .same plight as when received.

It appears that Foi-m H was not strictly adhered to, the
notice of complaint having been attached to the list of
complaints, in.stead of the latter being appended to the
notice, but the form adopted was apparently sufficient
under sec. 4 of the Act.

The appeal or complaint having been duly lodged, the
complainant is not to be deprived of his right to have it
heard and disposed of because of the inability of the
clerk to produce the notice in Court. The default is in no
way attributable to the complainant. In this case it is due
to the clerk's nonfeasance. But if it had been due to
accident such as the burning of the clerk's office or the
destruction of the papers by mistake, the complainant

MAKMOlt.V AND I.AKi;.

Uio

nwifht not to suft'ci- if it he t'ouiid posHihlc to piovi' the
conttiiitH oF the papers ho a,s to enal)l(' tlu- .Jud^'r to propood
with the appeal atul doul with the coiiiphiintH.

I a.s.suini! that in this cast- the contents of the notice
can he shewn Ixifore the .liidoe ,ind that he will have no
difficultv ill aseertaininy,- with reasonahle eertaintv the
nature of the ohjectioiis made to the voters' list. And 1
think it conipeteiil for the .)udt;(' to receive evidence to
shew the loss and contents of the notice, and, if satisHcd
in regard thereto, to proceed to <leal with the complaints
in tlie manner prescribed hy the stHtut(^

K. I!. U.

UK VOTKKS' LISTS OK MAI)()(

OXTAIIIO VOTEHS- L/STS ACT.

Hkkohk AIoss, .I.A.

/(I'll II ml I llh Dirt mill i\ I'.iud.

Voferx' IJsts-Xnliri> 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<'<lini^' further to shew
that it came to his hands.

I think when the statute says that the objecting voter

shall ^rive to the cl.Tk iiotic- in writi.i-. it means that lio
is required to shew that the notice reached him within the
proper time. And if it he piov,.,! <„• admitted to have
actually reache.l him in due time, it is ([uite innnaterial
how it reached him. It may be sent l,y a private
messenger oi' l,y a hailiti ov sherifi's ..fficei' or any other
reliable a^ent. There appears to be no wood reason whv
the post office should not !«• made the a^rent. This was
the view taken by the lull Court of ( Vnumon Fleas in
Smith V. .AoNr.s (J«(il) 11 C.B.N.S. (i2. Byles. .1.. ,v-
mai-kin^^ at i>. «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 place<l ujMjn a .sentence in Mi-. Hodoins's
useful Manual on Voters' Lists, 2nd ed., at p. 45, to the
effect that service by post oi- reuistered letter i.s not pi-o-
vided for. But it is plain that the learned authoi- do.-s
not mean to convey the idea that sei-vice by the.se means
may not prove sutlicient. He is merely stating- the fact
that there is no special provision, and later on in the same
note he states that the notice nmst be served in such a
way as to come to the knowledoe of the person intended
to be served.

For these reasons. I .shall certify to His H()n(,ui' the
Lieutenant-(;overnor that, in my opinion, the list in ipies-
tion should be entertained.

K. H. I!.

KXD OF VOLI.ME II.

11 4

lot

lool

A DIGEST

OF THE

CASES REPORTED IN THIS VOLUME.

ACTION.

Limitation of.]— See Cor-
RUFf Practices, 5.

AGENCY.

See Corrupt Practices, 2, 4

ALIENS.

See Corrupt Practices, 2.

AMBIGUITY.

See Ballot, 3.

APPEAL.

See Particulars.

ASSESSMENT ROLL.

Final Revision of.] See

Voters Lists, 2.

BALLOT.

1. Marking of- Division of
—Portion Reinoved.]~U a bal-
lot is 80 marked that no onei
looking at it can have any doubt I

22— VOL. II. K.C.

for which candidate the vote was
intended, and if there has been a
compliance with the provisions
of the Act, according to any fair
and reasonable construction of it,

the vote sliould be allowed:

Held, that the dividing lines
on the ballot between the names
of the candidates, and not the
lines between the numbers and
the names, indicate the divisions
within which the voter's cross
should be placed, and the space
containing the number is part
of the division of the ballot con-
taining tlie candidate's name,
and that votes marked by a
cvoss to the left of the lines
betwoen the numbers and the
names were good.

Held, also, that a ballot, from
I which a portion of the blank
part on the right-hand side had
been removed, leaving all the
printed matter except a portion
of the lines separating the names,
but which was properly marked
by the voter, was good.

Held, also, that ballots marked
for both candidates, and a ballot
marked on the back, although
over a candidate's name, were
properly rejected.

Held, also, that certain ballots

170

DIGEST OF CASES.

[vol.

with other marks on them be-
sides the cross were good or bad
under the circumstances of each
case set out in the report.

Held, also, that a ballot, hav-
ing the name of a candidate
marked on its face in pencil, in
addition to being properly
marked for that candidate, was
good ; that a ballot with two
initials on the back as well as
those of the deputy returning
officer was good ; that a ballot
with the name of a voter on the
back was bad : and that ballots
with certain peculiar crosses
marked thereon were good.
West Elgin (No.l.) {Provincial),
38.

2. Marked with numbers —
By Deputy Returning Ojfficer —
Marking cross on left-hand side
— Name of candidate printed
in wrong division — Uncer-
tainty.'] — The fact that a number
has been placed on the back of
each ballot paper in a voting
sub-division, in pencil, b}'' the
Deputy Returning Officer, will
not invalidate them.

The fact that the cross is
marked in the division on the
left-hand side of the ballot paper
containing the candidate's num-
ber, and not in the division con-
taining his name, will not in-
validate it. The West Elgin
Case, ante p. 38, followed.

Where the printer had printed
the surname of a candidate too
high up and in the division of
the ballot paper occupied bj' the
name of another candidate: —

Held, that the ballots marked
with a cross above the dividing
line but opposite to the surname
so placed could not be counted
for such candidate, but were
either marked for the other
candidate, or were oid for un-
certainty. South Perth (1898),
(Pr-ovincial), 47.

3. Division of — Names of can-
didates in — Uncertainty as to
— Ambiguity.] — Where the sur-
name of a Ci"ndidate has been
printed so high up in the ballot
paper as to appear in the divi-
sion containing the name of
another candidate and to lead to
uncertainty as to which of the
two candidates' divisions of the
ballot paper 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. South
Perth (1898) (Provincial), 52.

4. Marking — Validity of] —
A ballot properly marked, but
not initialed by the deputy
returning officer, having instead
the initials C.S., which appeared,
and were assumed, to be those
of the poll clerk, was held good.

A ballot from which tlie offi-
cial number was torn off, without
anything to shew how it hap-
pened, was held bad.

Ballots marked — I or y or A
were held good.

Jenkins v. Brecken (1883),
7 P.C.R. 247, followed.

[vol.

II.]

DIGEST OF CASES.

Ballots marked for a candi-
date, but having (1) the -vord
" vote " written after his name ;
(2) having the word "Jos.,"
being an abbreviation of the
candidate's christian name, writ-
ten before his name ; (3) having
the candidate's surname written
on the back of the ballot, were
held had—West Huron {Pro-
vincial), 58.

171

West Elgin Case, ante p. 38
followed.]— >Sfee 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

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

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,

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
roturnin<j officer has ))laced it
in the expre.sM or postothce for
trauHnuHHion to .such clerk.

It is not essential under the
Ontario Act, ll.S.O. 1807 ch. 11,
sec. 15, that a notice of tlie
presentation of a petition should
be served, where sucli notice is
indorsed on the petition. Ottawa
{Proviiiciid), ()4.

NOTICE.

Endorsement on Petition —
Separate Notice — Necessity for.]
— See Members.

Of Complaint.] — See Voters
Lists, 3, 4.

NOTICE OF TEIAL.

Sheriff's Costs of.]— See Co.sTS,

PAROL EVIDENCE.

See Voters Lists, 3.

PARTICULARS.

Verification of — Appeal —
Vagueness of Partictdars. — In
pi'oceedings under tliu Controver-
ted Elections Act, R.8.0. 1897 ch.
11, it is sufficient to attach an
affidavit of verification to the
particulars tiled, without serving

an affi<lavit of verification on the
respondent.

It is too late on appeal from
tlu! judgment on an election
petition to object to the insuffi-
ciency or vagueness of the par-
ticulars. North Waterloo {Pro-
vincial), 7G.

PETITION.

1. Siibstitiitivg New Peti-
tioner — Jurisdiction — Domin-
ion.] — The Court has no power
in a pi'oceedingunder the Domin-
ion Controverted Election Act
to substitute a new petitioner
unless either no day has been
fixed within the time prescribed
by statute or notice of with-
drawal has been given by the
petitioner; and where a petition
came regularly down to trial and
the petitioner stated he had no
evidence to offer, an application
of a third party to be substituted
as petitioner upon vague charges
made on information and belief,
of collusion in the dropping of
the petition, whicii were contra-
dicted, and of corrupt practices,
was refused and the petition
dismissed with costs. South
Riding of Essex {Dominion), 0.

2. Service Qui of Ju.risdic-
tion.] — A petition to unseat a
member may be duly served out
of the jurisdiction of the Court;
and it is not essential that an
application sliould be made for
leave to effect such service, or

II.J

DIGEST OF CASES.

177

for allowing' the service so made.
Wrxf Alfjomo (Provincial), 13.

.Disniissid of—S/icrifti Costs.]
— >See 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.

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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