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Tous les autres exemplaires originaux sont filmis en commenqant par la premidre page qui comporte une empreinte d'impression ou d'illustration et en terminant par la dernidre page qui comporte une telle empreinte. Un des symboles suivants apparaitra sur la dernidre image de cheque microfiche, selon le cas: le symbole ^^ signifie "A SUIVRE", le symbole V signifie "FIN". Les cartes, planches, tableaux, etc., peuvent dtre film6s d des taux de reduction diffirents Lorsque le document est trop grand pour dtre reproduit en un seul clichd, il est film^ d partir de Tangle supirieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images n^cessaire. Les diagrammes suivants illustrent h. m^thode. rrata to pelure, nd n 32X 1 2 3 1 2 3 4 5 6 -zzz REPORTS «»K THK 7-51- :^ DECISIONS OF THE JUDGES ri)lt THK TKUI, OK ELECTION PETITIONS IN ONTARIO, KKLATINO TO Kl.KfTIONH TO THB LEGISLATIVE ASSEMBLY OF ONTARIO, 1871-5-9 ; AND TO THK HOUSE OF COMMONS OF CANADA, 1874-8. BY THOMAS HODGINS, Q.C. TOKOXTO : OAllSWKLL \ COM I A XV i'atu i.1ubli!ihfr!i. TABLE OF CASES. l-AiiK. 644 «; - 2o;{ r)47 - 647 - - 803 529, 530 - - 205 ■ - 769 7«)4 Brockviixk (Prov.) 1 (Jabdwei-l (Prov.) - - Cardwem, (Doin.) - - Carleton (Prov.) - - Cornwall (Prov.) - - Cornwall (■/ (Doiii.) - Cornwall (2) (Doin.) - Cornwall (.'}) (Doin.) DuFFKRiN (Prov.) - rtuNDAS (Prov.) East El(jin (Dom.) ■ Kast Hastings (Doin.) Kast Nortihimberlam) (Prov.) 387 Kast Northimherland (Dom.) 577 East Peterhoro (Prov.) - 245 East Toronto (Prov.)- - 70 (tLENGARRV (Prov.)- - 8 Halton (Prov.) - - - 283 Halton (Dom.) 736 Kingston (Dom.) - - - 625 Lincoln (1) (Prov.) - - 391 Lincoln (2) (Prov.) 489, 500 London (Prov.) - - - - 214 London (Dom.) - - - - 560 MoNCK (Prov.) - - - 154 MoNCK (Dom.) - - - - 725 Muskoka (Prov.) - - 458 Niagara (Dora.) - - 56'. North Grkv (Prov.) - - 362 North Miudlese.\ (Prov.) 376 North Ontario (Prov.) - 304 North Ontario (Dom.) - 78r» North Renfrew (Dom.) - 710 North Simcob (Prov.) 60 North Simcoe (Dom.) 617, 624 North Victoria (Prov.) 252 T\ar. N OK I II Victoria (1) (Dom.) - . - - .')84, 612 North Vi»'TORiA(2)(Doin.) 671 North \Ventwoktii( Prov.) 343 North York (Prov.) - - 62 North York (Dom.) - - 741» Peel (Prov.) 185 Prkhcott (Prov.) - - - 1 Pkkhcott (Dom.) - ■ - 780 Prince Ki)\vaki»(1) (Prov.) 45 Prince Edward (2) (Prov.) 160 Ui'ssELL (1) (Prov.) - - 199 RcHSELL (2) (Prov.) - - 519 SoLTH EssE.x (Prov.) - - 235 South (>uenville (Prov.) 162 South Grey (Prov.) - - 62 Soi ill Huron (Dom.) - - 576 SoLrH Norfolk (Dom.) - 660 South Ontario (Prov.) - 420 South Ontario (Dom.) - 751 South OxFORD(Prov.) 238, 243 South Renfrew (l)(l)om.) 556 South Renfrew (2)( Dom.) 705 South VVentworth (Prov.) 531 Stormoxt (1) (Prov.) - - 21 Stor-mont (2) (Prov.) - - 537 VVf,lland(1) (Prov.) - - 47 Welland (2) (Prov.) - - 187 West Elgin (Prov.) 223, 227 West Hastings ^1) (Prov.) 21 1 West Hastings (2) (Prov.) 539 West North' mberland (Dom.) 562 West Peterhouo (Prov) 274 West Toronto (1) (Prov.) 97 West Toronto (2) (Prov.) 179 WESTWELLIN(iTON(PrOV.) 231 West York (Prov.) - - 156 TABLE OF STATUTES AND CASES THEREUNDER, I, Pkovincial E[-K(tions, I«71. •A'2 Vic, c. 21, O. Kkctioii haw. 18(J.S (K.S.O., c. 10, in part). 34 Vic, c a, <).— ('(Mitroverted Klec. Aut, 1871 (U.S.O., c. II, in part). VMK. HriMkvillu VH>, !:«! (!arlutii)(urrv f .Moiitk .." 154 PAOR. Niirtli .Siiiifoo .M) Niirth York 02 ITCMCott 1 I'riiu'f Kdwurd (1) 4% {D UKi I South Uri-nvilli- 1(1.' PAOK. •Soulli (Jrey Htoniic.iit (1) n \ Wullaiid (1) 47 I Went Toronto ;i) «7 I WfHt York 15(1 II. Pkovincial Ki.kctions, ISTT). 32 Vic, o. 21, (>., ami 'M Vic. c ."«, (>. (Si-i- ahove). Kiection .Vet, Isy.'MK.S.O.. c. 10 and II, in part). Ballot Act, 1871 (K..S.O.. c 10, in part.) KlvctionH and Klcction Trials, 1874 (R.S.O., c 10 :m Vic, 0. 1, U. 37 Vic, c. 5, 0. .38 Vic, c 3,0. and 11, in {uirt). I-AUK. ranlwt'll •2til» <;oriiwall 20:« DuiiilaH 20.1 Kaat NiirtliiiinlH;rlaiiU . .:<>47 KaHt iVtvrlHiro 'J4.'> Halton 2H.J UlKoliMl) :«i •• (2)' 4Wt, .MX) lioiulnii 214 l-AUK. Houth Ontario 42U South Oxfortl 238, S!48 WcllandC-') 187 WVnt KIkmi 223, 227 West llaMtinK" (1) 211 Wi'Kl IVturliorj 274 West Toronto ('.'; 171t WiMl WL■llin^'ton 231 I'AdK. : .MuHkoka 4.'>S ' North Oruv :«1» i North MiiliUtisfx 37B ! North Oiitiirio .'t04 .North \ ii'toria 252 North Wt-ntworth 34:i IVfl in:, KlIMHL-ll 0) I!*!' South h'jitmx '.'3.1 • Also 31» Vic.f. to. <)., l.s7.V(i. III. Pkovincial Elk<;tions, 1870. U.S.O., c 10. KIt'ction Act of Ontario, 1877. It.S.O., c 1 1 . --Controvt'itc I Kloctions Aut of Ontario, 1877. 41 Vic , c 21. -Voters' hists Kinality Act, 1878. 42 Vic, c. 4.- Respecting Klections of Members, 187l>. I'AOK. I I'AltK. I Dufforin :<•>», ;,m i South WVntworth r.31 West llastinifs (2) , KuHBfll (•.;) jlli I Stornioiit (2; .Vt7 | PAUK. . ..63U I. Dominion Elkctions, 1S74. 3(5 Vic, c 27, Can. 3(j Vic, c 28, Can. Temporary ProvisioiLs for Fllectioiis, 1873. <'ontroverted Kiectiontt Act, 1873. I'AOK. *'iiril\vcll MA Ci-ntrr \Vt;llin;,'ton .ST'.* (;c)rnwall(l) .^47 Kosl Northuinherland ..577 37 Vic, c », Can. .37 Vic, c 10, Can.- I'AOK. Cornwall (2) (U7 llaltou 7;iti II. I'.MIK KillirxtoU Il-'.'i I.OIIllilll [Ml Niiijifiini .Mi.'" .North Sinicou tllT, iiJ4 Pniniiiion Klections Act, 1S74. - Dominion ( 'ontroverteil Elections Act, 1874. I I'AUK. I Moiick 7-.'.'-. I North Iti'iifrcw 710 I North Nir'.oriii (2i (i7l ! |)oMiNioN Klkctiuns. 1S7S PAOK. North Victoria (I). .584, 012 Soutli Unroll 67U .South Hfnfiiw(l) 550 West Northiiinlierlanil ..502 PAOK South .Norfolk ... I (JO South Hnifrta {i) 70r> .37 Vic, c !t. Can., and 37 \'ic., c lit. Can. (Sue aliovci. l{. I'illi'ctiial Ini|iiiry iiit) ( 'oiiiipt rfaeti''es, ISjti, .Amciuliiij: Ihnninion Klections Act of 1S7 1, 1.S7H. 38 Vic, c. 10, Can :v.) Vic, c 10, Can 41 N'ic, c. (J, Can, PAOK. Cornwall (3) S0» Kubt Kk'iii 70!i Kast llHHtin^<). North Ontario . North York . . PAOK. ...7i4 . . . 7.S.'. ...74'.» PAI.K. I'resrott 7«<» Soiitli uiitiirio 7ul R E P O R T S OK ELECTION CASES. I'liovisciAi. i:i.i:cTi(K\s, is:i. PRKSCOTT IJkioui: CiiiKr .Ii sih'i; IIi< mauds. L't»IU<:NAI., Jdth to .'.;;•'/ ./, is; I. .l\Mi:s SriiwAiir .M>/. I ■lii mill rs. V. (IliolMiK \\'i:i,l.i:s|.i;V HaMII.I' liiiiii 11/ III/ J '/( ///>• -' 'iiiii 'I'll til ijllil/l/ oj'Corril/i/ I'lil'I'tris Id tiji/iiili rosponilciit :ittac'k('iL;nnient in insoheni'V may le reeeived as eviclenee o f siieli as.>i''nnieiit iimler ('..S.('., e. So, Tile petitioners h.ivilli,' gi\ en eviileme of eorrilpt praetiees, //'/'/. (1( That the elertion \sas \(.id foi- luiheiy liv au'eiits. ('Ji That trnipt praetu ■\tensively prevail It this ( le<'ti (Jwvr W'hi tlier the .liid^e |)residiiig at the trial should not ilireet notice to lie given to the parties who, from the e\idenee. were apparently ;iiiltv of I'oi-riiiit pr.aet liahililv t 'I diMiiialitieatioii, •■iiid n that the.lndL'e nii^dit decide upon their lit theiii under tli(! statuti;, r prtitioll coiituillt .1 tl If 1 isiial alI(\Lf;iti()ii- .n.rii >ii\- etc., juid tliut illt'Ljiil viiti's h;ul Imtm itci ivcl. jiml '•laiiiii'»;f/i,i// ni.sr (21 L. T. N. S., :}()(;, :{()S). {„) The Chief Ji'stue saitl he would not preelude tlio party from raising this ohjection now, hut would reseive it if necessarv. Kviilenee was thi-n givi'U to show that the petitioner, J. H. CIevelan>()7, to .John White, of Montreal, otHcial assignee. Counsel for the petitioners olijected that the assign- ment is not j)roval»le hy a notarial copy, and that express provision was nuide in the lns(jlvent Actsof lS()4and I.Sdf), for |)roving it. The Chief Justice, under C.S.C., c. SO, s. 2, admitted the notarial copy of the assignment. Evidence was then given that ])etitioner's father, hy will, dated 2.')th June, lS(il, devised cciiain rt.'al estate to tlie petitioner and his wife. The pivtperty was as.sessed in i)ctitionci"'s name for S<)0(). Mr. Bdhunc contende hf |ia'nl S2 to haiiiti Haiii;;uii I'lir tlic usf of liis team in takin;,' voters to tin- |hiI1 mi |i(»lliiiLf .liiy ; !^-{ to .iolm Kiaiikliii for a similaf service; also some nioiiev t<» ( 'Iiailes nt to take it hack. I iThI Note." Jniiiis //. .1///A/// proveil that he was on the respondent'^ rnmiiiittee, iiinl caii\asse(| \\\ th li iiii : that he receiv e(| SH) from the Hon. .lolin liainilton lo hire men in |)liice of certain voters who were in the s hant les so that I' sUcll Vot- ers I!il:^f|lt collie to the eje •t loll and \ lite : that he handed the money to Walter Shaiic: thai In- received fiirlher Slims aiiiountiii'' to !:?4()() or S.')()() from ( "ol. iiin^insoii, in tl le coiiiiiiittee. uild kept lio fecon I of it. " It was handed to me wiilioiit any in>l iiict ions, and it was never couiite(l. I v\as to use the money. No oiie u'ave nie iiist riict ions how to lay out that money. I consider the money was handed to me to spend at the election. 1 ij,av e it to ]iarties. I >^i\\v -Mr. Allan .1. ( Jiant S.'tO. 1 told him he wjus to mi, and electioiiei'r : let't it discretionary with him to use as he thouudit l.est. | --ave.^.'iO to tlic Rev. Mr. Phillips of the |{. ( '. ( "liureji oil llie iiii iiiii 111;' of tile nomination; I felt assured he would make l;' 1 use oi' it ; its usual to he lihcral with the clergy at these times. 1 jrave 'f^M) oi- S»")0 to Mr. I.eanch. He voted for Mr. Hamilton. J handed liim the money ; I helieve I said to him that was to pay his travelliiiL,' expenses, or sonu'tliiiiL!,' of that kind, for election purptj.se.s. 1 suppo.se we understood each other. IS7I ! I'KKscurr. 5 I ^MM' Mr. !liiut<' tin- rjcctinll witli it. Mr. t J.illai^lu'r xoti-il for Mi'. Ilaiiiilti>ii. I lu'lifxc Mr. Iiiali' nil'. I think all the jiartii-s iiiiilrrstnoil what thty Wile tuiln with it. I ln'lirM' Mr. Patrick Mc- ])uiial«l L;i>t S'iO or S2.') ul' thr saiiu'. ami small sums of Itf- twi'i'ii Sj.') aiiil S'20 |»ai'I >•.,' to otlwr partii's. I spent the Vi'st in tiratini;- :nii| in |iayim; travelling' expenses. I tiviiti'l at ( "aleiloiiiii Sprin^^s' meeting with part oj" the elect ion e\|ie||SCS. After an ailjourniiieiit. ( 'otinsel for tlie responih'iit stateij that . after the e\ii|elice ^ivi'li ye.stenlay. he colisidereil il sulHcielit case Iwi'l lieen lliaile to avoiil the election. The respoiielieve that ('oiru[)t prac- tices have extensively prevailed at tlie election to which the petition relates. 6 PROVINCIAL ELECTIONS. [A.D. I liave some doubt whethe; I ouj^fht not to direct tlmt notice be and the fact that the parties who are guilty may still be prosecuted for penalties, induce me to consent to the mat- ter not being proceeded with fui-ther, f^or the puipose of making the i)arties liable to the penalties under tlie statute of lcS7l. Petitionei's are entitleion, for petitioner, then abandoned the scru- tiny and the claim to the seat. Mr. <.'(tmrron, for respondent, consentetl, and that the election should be declared void. He further a/ IJ'ir/or-i — //lii/ii/ mill /'rnliHii/nl .!<■/.< — /{rihi-ri/ — (ii/f — /'j.rii.isiri- iiiii/niin/x — /.' In/., in/i. .' I , --"r-i . il I jl'i mul I'u — CO'-ttx. Tlic rcspoiiilfiit wild was tlicn rcjiri'st'iitin'^ the (•(niiitv iiitlii' EcLfislature, ■ ■ ' illed t\\ o .several (iccasiuii.s at the cluse ot jnililic iiiei'tiii;,'s nf el('ct( l>y liiin to explain his eoniliu't as sueli iiieiiili t. treateil all pfeseiit to lii|Uor at taverii.s. He iiaij not at the time made iij) his miiul to l)e a eaiiiliilateat tlie then eomin;,' t'h'ction, liiit tnM tln! oleetors that "if they gave him their siijiport he W(»nlil e.\])eet it." //(/'/. niiiliti- the I'iieiimstan that siieh treating was not done witli a uornipt intent. Qi: -Whether aneh treatinir was i (;i, of .'{•J Vict. ny ease a t'orrnpt jiraetico, under jap. •_M, i>r other than an illi'L'al aet wliieli snh- jeeted the ])arty to a penalty of .resent. o years previously wliicli had iiated tliat Hilil, that the gift, under .sm li circumstances, was not brihery. The respondent while canvassing had refreshment for his man and two horses at a tavern for part of a day and a nii.'lit. for w hich In; ])aid the tav .'in-k .'per >>.>. anil nex td; IV S.) inor. all Slo. witliout IsUiii; for a hill. Tile hill would ha\i amounted to ahout •■ who was elected, and Juiiies ilacleinian. 1S71.] GI,EN(iAHllY. Mr. Miir/fnna)i, Mr. Urfhutu; and Mr. IVihvn, for OIU'IS. pt'titi Mr. ./. Ifilh/drd Cmncron, Q.C., and Mr. J). B. McLnxnan I'or ii'spoiidt'iit. Till- pctitioinTs vi'lii'il ufX)!! the cases n'fcnvU to in the fdlliiwiMo' t'\i(lL'not' : da tins Craiff, rcsnondent : I was a caiKUilatt' at the last election, aiid was successful. 1 was rather uuwilliui; to stand. The Mieftinii's held were to otfer explanations (^f ni\' eomhict. 'I'he first nieetinn' was at Sonierstown. At that time I did not know the electi»ai was coining; on. I hail not made up my mind to he a camlidate. Made up my mind at Ale.xandiia to- heconu' a candidate At Someis- tiiwn I was the only one tliat s[)oke. The nieetiui,' was in a liuililinLj or hall-room in coiniection with the hotel. 1 told the people that if they L;ave me their support I Would expect it, and if not tliey might do othei-wise. After I spoke I told the people to jjjointo Somers hai' and liave somethinii," to ilrink ; this was to he at my exprnsi.'. 'Jliere wei'e fi-om .")() to lOO tlieic : 1 cant 1m> suri'. Some went in, so did I : 1 ])artook of the refreslimeiit at the har with them. .My invitation was neiu-ral ; pt'rha[)s '20 or oO Went in to drink. 1 oidy paid for oive ti'eat ; 1 paiJ ?.') in all to tlie j)i'o|)rietoi'. I left, leavinii;' several thei-e. At W'illiamstown the meetings were in a puMic hall. 1 spoke; no one else after I spoke. I .said, ms they all had hfcii out late, an j 1 32 JM{( »V 1 X( 'I Al. ELECTK ).\S. [A.D. wanls could liave no other oltjcct. No sul^jcct was dis- cussodbut the election, ami the whole end of the meetings and treatings was the promotion of the elections. Ilirrr- fonl c(U(','l\ L T. N.S., 121. Ther*' was not an English cas(! where cori'uptly was construed to mean iwilulit, with a view of conciliatin"; the puMican. He was not in need of ehiu'ity, or else tlu' fact of hein^f an old neij;hl)oi' nii^ht have divested the act of its con-u[)t a[»peai'ance. Tlu' fact that he 0; Lltmrlrh: rr/,sc, 1 O'M. & Here :asr 'I'urtl H., 2()0. Mr. C((incron denied that the term corrupt couM mean overything illegal or prohihiteil hy the Election Act. If so, then an election would he xoided for infraction of the 2ud section (which declared who .should not vote), :ird 14 PltO V I NC I A L E I.KCTK )NS. [a.d. 3. t .(. section, t4th section (as to who are to lie returning officers), 15tli section (as to poll clerks), 'I'Avd section (as to no show of hands), 27th (as to voting,' in more than one place), 40th (as to personation of voters), and the .')!)th, (JOth, 01st, 02nd, O.Srd, 04th, 00th, all of which prohibit something or another. If this view prevailed, the wearing a shanu'ock or an orange lily, or a hi-ight necktie, or the candidate's wife wearing a party colored scarf, oi- carrying a fowling-piece within two miles of a polling place, might void an election. The only illegal and prohiltitev the Legishitun,'. and if it had the}' had not .so expressed it. He contended, further, that the treating was not connecteer was strongly in his own favor. The petiHoners showed the de- pendence they placed in the respondent's evidence by call- ing no one to contradict him. His only object in calling those meetings was to give explanation as to his past conduct. He ui'ged that entertainment did not mean a mere drink. In the Olst .section the woids entertaimnent and drink are contrasted, and a distinction is made. Treat- ing was not mentionerouiote his election,' and " with intent to ])roniote the election of any such candidate," were struck out; and tlic furnishiiiH: of drink or other entertainment to any meeting of electors assembled for the purpose of promoting; an election, was made n, corrupt practice, by 30 Vict., c. 2, s. i ; now K. S. O., c. 10, s. 151. .See Wist WHlinijton, 1S75, pust. 16 I'HnVlN'ciAI. KI.IK TImN's. [a. IV i n I u \\\i (•ntcrtaiiiiiicnt was iMt('ii(l<'(| directly bt iiilliiciicf tlic clrc- tioii, aixl to prtHlucr ail cMi-ct ii]kim the clcctoi's. li" tint so, wliy Wfif tlif wonls iiitroducrtl f Tlicy arc i|iiitc useless if it was intended to proliiliit the ineic Mi\ in,n' of an enter- tainiiieiit to u ineetin^f of electors, altsoluteiy without reference to tlie e'iv,«i's intention and desij;;n in the act of ^ivin<^^ If the Le^dslature make it a corni]it ]tractice to ^ive entertainment with intent to jiroiiiote his election, it must in my iud;^'iiieiit com|iel a decision that the intent to promote must he a corru|it intent in the leifal sense of the term as hereinafter txplaiiied. I ani dealing;' with the statute avowedly in its pn-amhle aiiiietl at corrupt prac- tices, which Act at the same time ])ointedly omits all mention of treatin;^' from its lan^^ua^c. WheinNcr, there- fore, the act pidhiliitecl is not in its yrvy nature neces- sarily corrupt, such as hrilieiy, I feel an almost insu]terali'e dilticulty in holdiiiLi' it to lie a corrupt |iracti('e, inxdKini;' .such momentous conseipiei ices, unless it lie done corru|it ly. In the .tatiUahle sense of that term, what is the meaning- of "corruiitf" In ilw />iin//, 1/ msc (j ()"M. aiid II., I!»), JJlackhurn, sa\'s, ' CO rru[)t means with th e oliiec and intention of doinn' what the Ijc^islature plainly means to fori lid." In the Ifirijnnl cusi' (I hid. I!'.")), the same coriU|it treatiiiu' means, " with a learned JiuU ■(■ savs, that motive or intention, hy means of it to produce an etl'ect upon the election. " In the Llilijiild. (■(!!<( (Hull. 2")), Willes, J., says, treatinu' is forhiddeii " where\'er it is resorted to I or th le purpose or pampermn" peojiies appetites, and thereliy inducing' eji'ctors cither to vote or toahstain from \(»tin!4' otherwise than tliev would have done if tlicir palates had not het'ii tickled hy eatiiii;- ant giving (jf meat or drink must, like {}\i'v\ other (piestion of intention, deiiend U[)on what was done, and in a great measure the extent to which it was done, tlie manner and way: and therefore it is a (piestion which must always he more or less a (piestion of fact." All the.se remarks are made under a statute s[)eaking of cori'upt treating in order U) he elected, or for the purpo.se of corruj)tly in- fluencing [)ersons to vote or refrain froni voting. I may also ivfer to the very striking i-emarks of Wille.s, J., in the Builiniii rit:|m'!iI to tlit-ir u)»|tfHtfs. On Itotli tlif occiisioiis wlit'M riitrrtniniiiciit WHS ;|r\ I'M, till' ics|»oiiilfiit, accordiiiH' to Iiis iiMcoiitiadictiil •'v'kIciicc, wa-i still iiii'icfidi'il as to liis liccoiiiiM;^' a caiidi- dutt'. W'lifii till- iiifftiiiuM liiiiUc ii|) he otl'ri -i, aiid dot's treat all persons tlieie. The amount expended was, on the first oeeasiun, S.') ; uii the second, Sl'2. I feel hound to say that the evideiiee ;;i\-eU hy thr respondent seemed jfiven with ;,'reat candor, and favoraMy ini)>i'essed me us to its tiuth. an< holl\- unalile to draw from it any honest hclief tha; lir pi(t\ide(| this entertainment, consisting; apparently of a ^lass of lii|Uorall round, with an idea that he was therchy seekinn' to iidlueiice tiie election, oi- jd-omotr his cjccliitn in any of the senses referred to in the cast-s. He was unawar'e of the state of the law on this siihject, as he says. He is not to he excused on the ground of his ignorance ; lait the fact (his ignorance) is not wholly unimportant as hearing on tlie connnon custttm of the country - too common, as it initor- ttuiately i.s — of making all friendly meetings tlie occasion or the excuse of a di'luk oi- treat. The strong impression on my mind, and I thiid< it would he the inn)ivssion of any honest jury, is that tin- tn-ats in (piestion were just given in the connnon course of things, as following u connnon custom. In the apj)iopiiate language already cited, the .ludge must satisfy him.self whether that which was done, was really done in so mnisual and susjticions a way that he ought to ini|iute to the [)ei'.son a criminal intention in doing it. On the .second head the petitioners' comi.sel havi' rest<' its hi'iiiLf coitu|>L <\ aim ciiiiiinal. I lie cxplaMatioii ;,qvcM l»y rcs|»o)ii|ciit is, that Tohiii was a very old I'lieiid, liroiiLfht ii|) as a itoy with him. a yoiiiin' mail recently started in Imsiiiess, anayin;f for his actual expenses, which Mr. Hethiine .says could not exceed thii'e dollars, he thou'dit it riLflit to i)av him as it wi-i'e a coiiijiliment on his first visit, and he said he wouhl have 't\--(i : Ihld, not disfrancliiseil merely because hia name was entered under one head instead of another. 5. -The only (juestion as to the ijualiticatioii of a voter settled by tiie Court of Revision under the Assessment Act, is the one of value. — (ri(>r(ji- X. Stfinirt'M roll'. (i. — Wliere father and son live togetlier on tlie fatlier's farm, and the fatlier is in fact the principal to whon; money is paid, and who dis- tributes it as he thinks pi.'per, and tiie son lias no agrecni'jut l)indiiig on the fatlier to compel him to give the so' share of tile prt)cecds of the farm, or t(i cultivate a share of the land, iiut merely receives what tile fatlier's sense of justice dictates : //'-A/, tlie son h;is no vote. -Win. /'. E(()non''< roti'. 7.- -In a milling business wliere the agreement between tiie father and the son was, that if tiie son would take cliarge of tlie mill, and manage the business, hesliould have a !^;iiai'e of the jirolits, and tiie son, in fact, solely managed tlie business, keeping possession of tiie mill, and apjily- ing a portion of tlie proceeds to his own use : //'•/'/, tliat tlie son had sucli an interest in the business, and, wliile tiie business lasted, sucli an interest in tlie land, as entitled liim to vote. -Roller/ liidliuk's rot'. 8. -Wliere a certain occupancy was proved on the part of tlie son dis- tinct from tliat of the fatlier, iiut no agreement to entitle the son to a 'iliare of tlie piolits, and tlie son merely woi'ked with the rest of tlie family for their common benetit : //»/(m or ISOti, lie was to support the father, and ap])ly the rest of the proceeds to his own supjiort : //. ,1//'. /('. A. fi'/rri.soii, Q.C, mti/, flic IMitidiicr in per.son ajjpeared for the })etitionei'. Mr. ./. UiUjinrd Cmncron, i^.Ctnul Mr. 1). B. MrLoimoi foi' the res[iondent. Mr. lliirrtsuii in opi'nino' the case foi- tlie petitioner, stated that he intended going- into the iiuestion of scrutiny tii'st, and pro})o.sed to folhiw tlie pi-actice of the English cases, \iz : for the jier.son in a minority to first place himself in a majority, then the pei-son thus placed in a minority to striki' oit' his opponent's votes. RicH.VHDS, C. J. — We had Itetter follow the same practice here. Mr. Cinnrnui took the ohjection. tliat the writ of elec- tion was necessary hefore any evidence of the election could hi' given, and that the writ and retui-n should he produce(l. Mr. Ifin'ri.'idti repiieil, ami cited tlie Corcntri/ (v^^(^ 20 L. T. N. S. 40(i, where Willes J., was I'eported to have 24 PROVINCIAL ELECTIONS. [a.ix said, " I shall not rc^iuiro the election to be proved in any of tliese ca,se.s. The ])oll hooks are here, and they tell me an election was held." Richards, C. J. — I considei- the proceedings some- what analogous to an interpleader issue. The matter is sent down here now to be tried, and it .seems to me that after a petition has lieen presented as.serting an election and retui'n.and pai'ties have appeared demanding paiticu- lars, &c., and have themselves made reci'iminatoiy chaiges, and delivered lists of votes (objected to, it would be very inconsistent nu then urged that the respondent should tiist dispo.se of the reci'iminatoiy chai'ges of Itrilteiy. Mr. Cdnuron stated that as to tlie I'ecriminatorv char'i''^ Jacir evidence of his right to vote. If the party objecting to it I'esolves to attack it, lie niay call the voter if he please, or give any othei- evidenc(> he hat* on the subject. 25 1H71 ] HTOllMONT. Counsel on liotli sidoH then requested tlie rulinj,' of the Court on the question of a vot<,M-. properly (|uaIiHe(l, but wlio liv mistake was entered on the roll as tenant, instead of owner or occupant. Richards, C. J.—The rotf Judii;es have determined to hold that when a voter is duly (jualitied in other re- spects, aTid his name is on the roll and list, hut is l»y mis- tak<' entered as tenant, instead of owner or occupant, or rirc n-rsd, he, really having the ([ualification, is not dis- franchised, meiely l)ecause his name is entered under (me of the heads, instead of inider another. The ])etitioner then proceeded with the scrutiny : (iE()l{(JE X. STEW.\RT's vote. Gillicrt Stcicaii was called on the vote of Gi<,r(/r N. Stcn-mi. It appeared by the evidence that the witness was the owner of Lot (i, in the Township of (Jsnabruck, and 4 or ") acres of Lot 7, for the lattei' of which George N., his son, the voter, was assessed. The son had bt;en assessed on this foi' ."} or 4 years. The taxes were paid the same as the rest of the ta.xes on tlie place. The son had no more' interest in these 4 or 5 acres than in the rest of the farm. He was accustomed to use what he recpiired for necessaries, clothing, dire, but did not own anything as of light on the farm. Mr. 'Cameron contended that midei" the Assessment Law, the voters' list is final as to ([ualitication, and citt.'d •\i Vic. c. 21, s. 7, subs. 10. RlcH.XKDS, C. J. — The rotn Judges have had this ([Ues- tioii under consideiation, and have ai'ii\ m1 at tlw con- clusion that under the statut(' the only ([Uestion of (piali- tication which was considereX"S VOTE., died on the vote of \V III. I'. Einimix T live in Osnabruck. I live on the East { of 7 and West i of () in that concession. I have lived there about "% "». h1l ill ilJ l! ! : fi 26 IM{( >VINCIAL ELECTIONS. [A.D. 23 yeai's. J own the land. Wni. P. Eanion is my son. We have possession. He lives in the same house with me, a member of the t'amilv. He makes his livin M--; ills portion. Sometimes it amounts to more tli'u •;.'..•' ■■ ."t'-ording to what he sells. He nuinajjfes the w !iok- Fa»rc.' :.>i- me. I have been in the habit of consider- i;"g '11' ! ' ' '^ly in occupation of the farm. C'rusii-i.Ui,^roeoods every week, save what ho kept for himself, to his mother or me. He is a miller — runs the mill. The Inisino.ss is carrie y-ot in aiiv one voar. He was to have a liberal allowance, having charge of the mill ' — more than most young men. Cross-cxdiuiiird : It is a gi'ist mill, with throe run of stones ; he has no wages ; ho runs this mill jointly with mo, and has done so for four year.s. I could not put him out of tho mill as I thought proper. I have had no settle- ment with my son as to our transactions. Ho will be 28 next birthday. I thought him entitled to a good liberal allowance — once or twice I thought ho dicw moi'o than re(juired for the business wo wore doing just then. Some- times the profit was veiy small. Ho is a miller — under- ■stands the trade. I presume theio would be .some trouble in putting him out of tho mill — .some time to give him notice. The understanding botwt'on us was, whtMi we re- turned from the West, if he would stay, he would have a [A.D. !en with he west mill for reeinent (). The )rtion — roeinent ly. He tloment. what he fist four L'k, save He is a n in my ! out in lade out t of the it suited I reason- i-Ve have ;owar(ls e is not ar. He tlie mill run of ly with put him ) sottle- 11 ])e 2S liberal )re than Some- -under- ti-ouble ive him 1 we re- 1 have a 1871.] SToKMONT. 2f) good lihcral allowance for his work. Thei'e was a man employed ul)oiit the mill at so mueh a month ; he was paid in cash ; llohcit hired him ; he took what he chose ; sometimes I pri'siiiiir what he tt)ok was more than suffi- cient for liis ordinaiy expenses. Thv share he took would amount to inoic than i'.")() a yv-,u: He was differently situat('(| from my other sons. He did all the collecting of the ilelits; is still tle-re on the .same terms. Before he took charge this was rated in my name Immediately after he came there he made the ai'i'angement ; there was a change. I think he sent the money f(jr the taxes ; I know I did not. 1 am not there a great deal ; he is, and he attends to those things. He does not get !?:}()() in cash from the mill — not much less than S'200. He Ix/ards at home. I have a first-class miller at .^oOO a vear and the house, and they hoard them.selves. IlevMiminiil : 1 have houu'ht some of his elothing since he came hack. 1 did not charge him with it; .sometimes he pays for it, .sometimes not. I have paid for a good share of his clothing for the last four years. When he wants to go away from home, and the horses are there, he generally takes one. 1 am certain he took more than SlOO in ca.sh in each year for the last j'ear or two. RiCHARD.s, C J. — I think in this case, the f)riginal agreement lietween the parties .shows an intention to give the son something more than p mere gratuity such as the father might choose to allow him. The father says he told him if he would stay at home and take charge of the mill, he would give him a .share of the profits ; no specific sliar(! was agreed on, and the son took out oi the proceeds what he thought right ; the father .sometimes thought it too much, Itut did not mention this to the .son ; did not close the business or the connection. 1 think here the son had something more than a sum of money out of the pre- mises at the will of the father ; he was entitled to a. share ; had an interest in the busines.s, and, as such, while the business lasted, an interest in the land, and was at all events a partner in the profits, and might be considered as i lut can «lo no lianl work. I consi.lcr it my duty to consult liim aliout what 1 sell. If he was ahout to assist a nci;;hl'or, ami consultctl me ahout it, 1 don't think I would lie Justitlrd in oltjcctin<; to his doin<'' St). 1 cdiisidiT hin- the owner of the place. Before 1 was married \\r were li\ini;- toj;-ether ; I wouM j;ive in he was liossof the lionsc My sister was also livin<,' thei'e, and also a niece of mine, seventeen or eij;hteen years of a^r,.. Mr. Ihnrisnii contended that the voter hail a I'ij^dit to enforce specitic performance of the a, su.i-sec. 2. Kirii.\l{|)s, ( ". .1. - 1 consider the father and the son lia^'c ft sulistantial intei'est in the husiness and its proceeds, and ill the proceeds of the farm, and in the laml ; liut j)erlia|is not strictly a term. I thiid< the interest the son has is in the nature of a joint one with the father. Mr. Ifiirrisint contiMnli'd that the' oltjection taken to tliis vote does not toUcli the ])oint. The y'rounds of oltjection ar(! in scIumIuIc No. (i, ami are thus state as.se.ssed and voted." Mr. (JidniKiii, .said that the ohjection came fairly up, under tlie olijection that he is not a Innid jidr owner, occupant, oi- tenant of the property in respect of wliicli they were asfscssed and voted. Tliis means tliat he was not asses.sed to tlie \ahu' to ([ualify him. See W^ulJ'crdati, p. !)S. Ri('i[.uu)S, C;. J. — I do not consiiU'r tliat tlie notice, as given, points to the ohJectiii:(l : I did this to ck'ai- oti' the place; to sjjet it ill tlie end for myselt". That was tlie motive with wliich I made the agreement My father and tlie family were to have tht'ir support m the meantime, and whatever I niafi(i,,i , ;f I, ■|: ;■ 1'' ■, ' Ih ilfr. Cameron, contra. — There is nothing to show that the roll might not have been revised after lie got his deed — nothing in the 5th section of the Act to declare that the person should have the title, and nothing in the section referred to, to call attention to the particular objec- tion now raised, and it is only by referring to the oath that the point comes up. Mr. Harrison, in reply. — The statute only permitted apjieals to oth July, under the Assessment Act, 32 Vic, cap. 80, section 63, sub-section G. Tlie general form of objection was sufficient : if the parties thought it not sufficiently specified, they should have demantled better or further particulars. Richards, C J.— 1 think this v(^te bad, because the voter did not possess the (jualitication at the time he was assessed, or befoie the final revision of the roll. The i-espondent's counsel does not say that lie is prejudiced by the way in which the objection is taken. If he had been, I should postpone the consideration of the case. It is ()])jected that the case T)f Owen Baker shoiild be subject to the same rule, and if the question had been pivsented to me in that view, I think I should have felt at liberty to go into the case, giving time to the petitioner to make fui'ther in- ([uiries if he thought proper. BENJAMIN' ogre's VOTE. Baijamiii Gore, called as to his own vote. It appeared by the evidence of the A.'itness, that he lived Avith his father, and had voted on his, the father's property. His father Itad made a will in his favor, but he had no title but a verbal agreement with the father. The agreement was made at the time the will was made, about iJSOo or 18()0. The son was to take the proceeds after .supporting his father and himself ; did not account to his father for the proceeds. Witness was assessed for 10 acres, value $250. The assessment was made in his, the witness' name, before the arrangement with the father. It was done to give him a vote. The father paitl tlie taxes before the agieement, the son pays them now. 1871.] STOllMONT. 37 Mr. Cawcron, contended that the arrangement was a colorable one, mei-ely to give the son a vote. The ten acres were not specially mentioned. Richards, C. J. — li' the name had been put on originally (before l, ^ ; but lieing c(jntinued aftei- he really became the occu- pant foi- his onai lienetit (since LS6G), I cannot say that he is not now properly a voter, even though the name was continued there to enable him to vote. I think tlie vote (food DONALD BLAIR S VOTE. Jfoiirs Blair, called on the vote of JJonald Blair : I live on the west h of Lot 2(5 in the 6th Con., Roxborough. I am the father of Donald Blair. He lives with me. Hv has no written agi-ecment, lease, or insti'ument. When it was purchased he sent me the money to pay for it, about four years ago, and I took the deed in my own name. He was then in the States, and came back a year after. He is liviuij: with me, as the other son. He is the oldest. He is not married. By means of that lot he has bought another last .spring. He paid only S'500 for the lot. We are all woiking the place. He has got a deed for 32 in same concession. Bought it last spring. I own my plac:. The N. W. h of 2(5 in the Gth Con. is the lot the boy voted on and which he sent me the money for. My sons and me are working and occupying it since about a year ago. He had not any interest in it beyond this, that his money bought it. Cross-examined : I bought Lot 2G more than thirty years aiijo. I bouo'ht 25 for Donald. I wrote him I could buy the place for him cheap. 1 mentioned S'iOO, if he coidd send me the money. T bought the place about foui- years ago. T(jok the deed in my own name, as he was not at home (he is about 27), and when he returned he went to live with me. Neither of us live on 2o ; lie works it it all comes in together, and is worked the same as my farm. By the labor and assistance of myself and his m "liiir h; «■ I M ^ .'i ^'.ji 38 PROVINCIAL ELECTIONS. [a.d. brotlier, we made money which enabled him to buy another place. T considei- it his, and it is his. He thought it would be too little to give his vote on the lot he bought, and he was assessed for three years for Lot 2'). He Mas assessed the first time the assessor came round after I bought it. The otlier son is 20. I have three daughters unmarried and two mai-ried. My son never asked me for a deed for it, nor did we ever speak of it. Nothing separate fi-om what was raised on 2'> for my own. No buildinti- now on 2'). We all worked on the three lots assistinii' one another. Before we bou^rht the last lot we all worked on the two, assisting one another. We make no shares. The young boy expects my lot ; it is so under- stood. The homestead is 180 acres with buildinu's. The oldest son gets 150 acres — no buildings. The girls are to have the loose property. We are working harmoniously, assisting and aiding each other. It is understood in the neighborhood that he is the owner. Mr. Cameron. — The father is trustee for the son. They are not rated for enough to have them both cjualified. And as to the ownership, the father is in possession, and has the v )tits to his own use, and therefore is literally the owner. Richards, C. J. — T tliink the fathei- is in fact the owner, but not in his riglit as owner in fee, but as occupant with the assent of his son. 1 think, on this evidence, the son is the ecjuitable owner, and rated as owner, would have a right to vote,notwitlistanding the deed to his t'athei", ami I hold that the mistake in that I'espect, being ratcsd as tenant instead of ownei-, does no harm. I therefore for the pres- ent hold the V(jte good, but, if necessary, may reserve it. SAMl'EL HILLS VOTE. Samuel Hill, called as to liis own vote. It appeared, on the evidence of the witness, tliat he and his son had leased certain pi-operty, the lease was drawn in the son's name alone, and wlien he and his son reaped the crops, the son claimed that they belonged to him solely. The witness ti^.mSitMA4 [A.D. o buy bought )ought, le ^^'as after I lighters me for lotliing n. No ree lots lot Ave e make ) untie r- s. The s are to niously, il in tlie They ualiiied. ion, and literally owner, mt with le son is have a er, and I s tenant he pres- serve it. _!ared, on id leased I's name the son witness lcS71.] STOKMONT. 39 owncil (1 other property, hut when the assessoi- called i>n him he letiuested hiui to assess this particular property to him, and on this he voted. Mr. JIarnsoii. — As he was on the roll, and had the necessarv (lualihcation, though not asse.ssed for it, the vote should stand. Mr. Ofiinrroii. — He \'oted in right of this property, and had it assessed to him in preference to the other by his own desire, and cannot in eonsetiuencc now claim to vote. TIic Chief Jistice held the vote had. JOSHUA UrPERT's VOTE. JoxliiKi Riqirrt, called as to his own vote. It appeared on tlie evidence of tlie voter that he voted on part of Lot No. (i, iSth Concession, Osnabruck. Did not own it ; his father-indaw did. Had occupied it for five years, paying rent to his fatlier-in-law. Lease expired in No\'einber last. Left it about a year ago — on first of last April. After he left, it was let by his father-in-law, with his consent, to a man named Stewart, for a largei- siun than he paid, and the father-in-law paid him the extra rent. Was a witness to the lease to Stewai't, which was dated 2(Sth March, 1y the lease, to which he was a subscribing witness, he ceased to be a tenant. I am of opinion that the party nui.st have the interest that (pialifies him at the time of the last final revision. If he has it then, though not at the time of the election, he could properly vote if he were still a resident of the electoral division, but not unless he had the interest at tlie time of the revision of the loll. The roll was com- i)leted :iOth March, two days after the new lease. I think the vote bad. WILLI A.M .1. (iOLLlNGEll's VOTE. Gcori/cM. Gnllinfi/rr, called on the vote of Wm. J. 6'i)l/inr/rr: [ made a deed to Wm. J. Gollinger of east half -SI, fifth Concession, Osnabruck. It was made on or about 12th K.'iw'w*'.!!--,*. ;«•■ i! 1 fir*f 223381 ill ; it 'I'; M ! Piii'iiJ 40 PROVINCIAL ELECTIONS. [A.D. Soptoiuber, 1870. TIuto was a verbal agreement l>ct\veen him and me about 10th or 12th Januaiy, 1870. 1 was to give him the pi'operty. He Jei't home and went to Wis- consin a few days before the lioHtUiys of 1809. About 10th January I sent him word if he would come back 1 would gi\(' him a deed of this lot ; he came back innnedi- ately with the perscjn by whom I sent the message. He was not then married. In September I made him the deed. We had some undei-standing about it before I made the deed. My son William got the proceeds of the place wholly and solely. I never got a fraction of the proceeds of this. Cross-examined: We h.vl ^^n^ee farms. We worked together. It was iuiden:>( . m. m-jis to have the produce of this farm to himself sc^.cUcvti ij . This was the under- standing between us in .r-xnuaiy, 1 870. His share was put hy itself, and kej^t separat* froi ' • rest. I worked 100 acres in the 7th Concession, and ';U a les in the 4th Concession also. Of these he had no share. We lived togethei- at that time in the dwelling on this lot, ujitil 1 gave him the deed. When I gave him the deed I was to leave. It was his piivilege t(; let me remain. I had no management of this part. I did on the otlici's, but let him do as he liked about this. I think my son was twenty- three years old in May or June. This undeistanding was not varied in any way after. It was pai't of tlie under- standing that he was to have control of the place last summer. I suppose he went away becaxise he wanted some property and I would not give it to him, but I changed my mind. I'c-exarnincd : When he came back the agreement was that if he would stay at home and woi'k the farm, I W(juld give him a deed at any time he chose to ask for it. He would i-ather I .should stay with him and give him a deed, so that he could have control. I would rather have con- trol myself, and so I would not stay there. He was anxious for the deed, and so I gave it to him. I thought he would have been willing I should stay there if I would '"^^ 3- [a.d. a deed, ve con- ie was iliought 1871.] STOUMONT. 4-1 ^Mve liini the deed. I wouM prefer to stay elsewhere. I did not liave any control. I never wished to stay there iVoin the time I made the verbal bargain. His own hand woiked it. I gave him a team, span of horses, for stock farming in Septembei-. I promised that in January, and transferred it in Septendter. I told him I would give him seetl to sow the place. I promise*! him no help. 1 helped him some. He did not pay me foi- his l)oard, nor did I pay him for the rent of the house. The teams pastured on the place. His l(jt and mine I'emained .together, not separated by fences. I could not tell how many bushels of grain I gave him that year. He did not promise to work for me. He worked as l)efore — beginning at one tii'ld and finishing that, and then at another, and so on, as before ; but this was upon an understanding. In Sep- tember I went to a hjt I had in tlu; 7th C'oncession. He reniaine(l on the lot. I gave him the dee. titionor, ation of \ tiiially riuht of uid that to vote, ires, on a Hlini,' of tlie pre- for pn;- ivisoil l>y Lliticaiion i-iiinonsly •enient to t for that e at one polled at ny of the laved for ist in con- of the list •eoiilating g of the liar town- this way rsons, and Li " bheni. ■2, p. 6.) 1S7I.] IMUNCK KDWAUI). PRINCE EDWARD. 45 Bkfork Chikf Justice Richards. I'KTUN, .':t/l Srp/rmhri; IS71. Wm. Am)i:ks(i\, PitUiomr, v. Gidkon Stkikek, Rc^pondcvt. Rhjht III atlark ('(IiuIkIiiI' •P'lilhtin )•'■■< )/ii(i/ljif etc. Mr. J. JIi//>/ar(f Cameron, Q.C, i^)V petitioner. Mr. Jji'tlniif, Mr. J. K. Kerr, mul Mr. AlUwn, for rc- ■spondent. At tlie opening of the case, counsel for the res])ondcnt contended that they had a light to contest the petitioner's ([ualitication, and to .show that he was disqualified from being a candidate by b(,'ing guilty of corrupt practices by hini.self and hi.s agents ; citing *he YowjIiaU cane, 21 L. T. N. S., -{OG. Coun.sel for the petitionei- contended that though a peti- tioner might be discjualitiud as a voter, and discpialified to be elected, yet the oltjection now rn-ged cannot ap})ly to a candi corrupt practices within the meaning of tlie Controvei-ted Elections Act of l(S71, and tliat the .same prevailed at this electi(jn, and that the election is therefore void ; snch practices, in my judgment, being of a chai'acter to atl'ect the result oi the election. It has not been proved before me that any corrupt practices have been connnitted with the knowledge and con.sent of either of the candidates at such election. The names of persons who have committed corrupt pi-actices have not been given in. I am not prepared to say that corrupt 2)ractices extensively prevailed at the said election. Costs followed the result. (5 Juunial Lc(jis. A,., em., 1871-2, p. 7.) [a.d- 1.S71.J WELLAND. 47 'ri(l«! on * tied !is a hcit't'ort' i liiist tli(^ UOt tllCHK ^)rol)ably bribery ' failiiil to () a»Muco 1 pai'l for .■'■;; hirinji; of voters to M. tliout the ■1 was tlion il jiartiei- ;onclusion ,-ji corrupt ,atoil, and ;us witliin bof IS71, I that tlic judifiiifut, cctioii. y corrupt ledge and ion. d corrupt repared to ed at the WKLI.AM). -2, p. 7.) Befohk Mw. Vick-Chanceij.ou Strono. Wkm.ami, !»f/i Ortohi'i; IS:K .T.\Mi: III IJeattv, I'ctifionn; v. .Iamks (Ieorge ( 'IHIUK, Itrxpondinf. AiiKiiihii' lit (if I'aiiiridar-i /■.'r'uli iiriM of Aiji-nri/ — Tnitfunj without Cvmi/it Intent- ('o^tM, At tlic tiiiil of till' i)('titinn, iiii aiiuMidiiHiit of tlit' piirticiilnrsas to corrupt practii'fs \\ill 'k- allowed ; ami if llic icspoiidt'iit is prejudiced hy tin; siirpiisf. ti'iiiis may lie iiiijjosi'd. To su.-tain tiie relation of ugoiuy, tlie petitioner niustsliow some reuoj^ni- tion liv tlie candidate of a voluntary agent's services. Tlic W'^lininxti r ntxi' (1 O'M. it 11., W)) as to agency followed. Treating;, when done in compliance with u cu.stom prevalent in the country and without any corrupt intent, will not avoid an tdection. Tile petition was dismissed, and, hy consent of the respondent, with- out costs. Tlic |)ctition fontaincd tin; usual cliarg-es of coniijit practices, Mr. J .jianl Cumcroii, <^.C, and Mr. JJ((j:fcr, for petitioner. '/'/,(■ ]!r.' of the tavern. The Reapomknt objected. No charge as to this witness is in the ]iarticular.s. The names of persons who are charged with having treated voters are given, but this witness is not among them. w "Mil, 'i t.„ % 48 PROVINCIAL ELECTIONS. [A.D. Mr. Cameron. — There is a general allegation of corrupt practices in the petition, and this is a corrupt practice. By the 0()th section spii'ituous li([uors are prohibited from being sold oi* given on polling day, and all prohibited acts are corrupt practices. The Vice-Chancellor. — The name of this witness is not in the particulai's, but the petitioner is entitled to an amendment adding it. If the respondent is prejudiced by the surprise, terms nmy be imposed. The amendment was then made. Witness continued: I treated several of Beatty's men there. I paid something for the ti'eat. I also treated a few persons at a small shop in Hinnberstone. T think also I had something to di'ink in a tavei-n in Welland on polliuLT dav. I cannot sav whether I ti'eated, or other persons treated me, on the last occasion. WlUiani 0. Cowan : I live in Thorold. 1 voted for Mr. Currie. There were a few of us who undertook to look up voters' lists and canvass for Mr. Curiie. I nevei- met Mr. Cui'rie at Thorold. I saw him frequently at St. Catharines duiing the canvass and spoke of the election. We met at Mr. Muni'o's several times about the election. We spent no money that I know of, nor was there any treating. 1 asked one Fair to vote for Mr. Currie. I held out no inducement oi- promise to him. On one occasion previous to the election I treated "lim. T asked him, if he would not vote for Curi'ie not to vote against him. 1 say positively I held out no inducement to Fair. Thei'e has not been a meeting of the conanittee since the election. Cross-examined : There was never any connnittee ; no organization. We did not connnunicate with Mi'. Currie, noi' make him aware of our pi-oceedings. Juibert Eddji : I live in Thorold, and voted for respojident. I was not a member of any committee. I never spoke to Mr. Currie during the election. I canvassed only three persons. I met some others who looked over voters' lists I met them casually on the street. I canvassed Samlers, *> '4 rt* 1 % / i . ■<'^fi%; [a.d. IS71. WELi.AN'l). if) (Jalbiaitli iui«l l\'NV, and no others. I paid an.i promised no money. I said to tliese three men, if tliere was any money forthcoming they wcmld get tlieir sliare of it. Mr. Cowan met me and .aid if I could do anytliing with tliese ])arties and get tliem to vote, it would Ite all i-ight. 1 said to Ml . Cowan and Mr. Barm that if stamps wei'e not used tlie election would go wrong. Mr. Ikinn and Mr. Cowan sai-i-ciyi7nhied : I never , saw Mr. (Jui-rie from the time of the convention meeting until the nomination. Thei'e was a resolution of the convention pledging the mendjers of it to .support Mr. (lurrie. After the examination of other witnesses, JA/'. i'liiinrdii statetl that the e\ idence he had to offer WduM add nothing to what had alreailv l)een !j:i\'en. With the exception of tile evi. Held, that tlie hiring by an agent of the respondent of a railtvay train to conves' voters to and from places alonL' tlie line of railway where they could vote, was a jiaynient of the travelling expenses of voters in goin^' to and from the election, within tlie meaning of sec. 71 of 32 Vic., c. 21, and was a corrupt practice, and avoided tlie election. [a.d. proved, I agents thought lould Le ithdraw- •isdiction mI Judge ', and i-e- M. & H., le case, to late of a held that )y Neelon evidently le country under the [• to affect m said in )te, would nt of the renaed no I, p. 12.) NORTH SIMCOE. 51 ro. 1. AUDAGH, lil.vay train to ly where they voters in goini; of 32 Vic, e. 1. 1871.] Where a charge of oorrupt practices by way of a recriminatory case is alleged \>y a^re.spon.lont against a petitioner, it may be reserved until the conclusion of the petitioner's case. The petition contained the usual allegations of hribery and coi-rui)t practices, and the hiring of teams and of a railway train, to convey voters to and from the election. Mr. Bdhuuc and Mr. J. K. Ka-r, for petitioner. Mr. ly Alton Mci'arthij for respondent. Counsel for the respondent objected that petitioner was dis(|ualitied on the ground of bi'ibeiy', and produced a notice served on the petitioner, calling upon him to ap- pear, in order that evidence might be given to prove him guilty of l)ribery. The Vice-Chaxcellor said he would reserve the ques- tion until the conclusion of the petitioner's case. Evidence of the i)ayment of travelling expenses of votei's froing to and from the election was as follows: William Davis Ardagh , Rc^puiulciU : "I was a candidate at the last election for North Simcoe. I knew that a special train on the Northern Railway had been hired to bring voters in my interest and of the other can- didates, down, the line of railway. A share of the expense of this train was paid by my partner, John Anhigh. Tliis may have been charged to me. The amount was S200 or Sl.SO. I suppose my partner expected that 1 should pay it. The agreement tor this train was made between Mi'. McCarthy or Mr. John Aidagh, on my be- lialf, Mr. Morriscjn, for Mr. Louiit, and Mr. Thomj)- son, for Ml'. Cook. I consider it o]»tional with myself whether I shall repay the amount incurred for this train or not. T am satisfied the election was not in any way atfecteil by this train. 1 have not yet determined whether I will re))ay my partner what he advanced on account of the election or not. There was a committee for my elec- tion, as I knew at the time, at Barrie. Mr. D'Alton Mc- Carthy was the chairman of this connuittee. Mr. John fH!:> 52 PllOVIXCIAL ELECTIONS. [A.D. Artlagli was, T know, taking an interest in my election. He went out and held one or two meetings on my behalf." The Vice-Chaxceli.oh, on this evidence, held that the election was void, on the ground that persons acting on behalf of the respondent had paitl the travelling ex- penses of divers electors in going to and returning from the election. Costs were ordennl to l)e paid by respondent, so fai- as the same relat('(l to the avoidance of the election. (5 Jovriud Lc(]k. Assrin., 1871-2, p. 12.) SOUTH GREY. !■ i if till 1)11(1^ 'Mtlllj; Before Mr. Vice-Chanx'ELLor Mowat. OwKN SoiMi, /.' /o J.'f Si /itniilur ; 7 fa S Novcivhi r, 1S7.I. Alexander Hinter, Prtitioncr, v. Abram William L Al' I)E R , Kt'^pnndcn I. Contrni'crtiil Elirt'ionx Art.i — Ai/Joiiriiiiwnf — /'oircr of JiKbjc to C'/iaiii/f> J'l.iir qi' /fi'Kr'uHi — Erhlinr.c of linlxrii IhAjtoiinihUttji for Arts of Aiji iif.'< It til/ Siih-iiiii'iita — /'iii/minf of E.rpi'ih'iiK of Vodr,^ — Trcafiiii/ — Di-sfrci/iiiij Elirl'toii Arroitn/s — Co.iln. When a Rule of Court has been issued undei- the Controverted Elections Aet, a)H)ointiii_ir a place for the trial not witliin the constituency the election tor which is in (question, tiie Juilge by whom the petition is being tried, has no power to adjourn, for the further hearing of tlie cause, from the place named in the Rule of Court to a place within .such constituency. Reas()nal)lc refreshments fui'nished lionii jii/i- to committees pi'omoting tiu! election are not illegal. Where a cliarge of l)ribcry is only the unaccepted offer of a bribe, the evidence nuist be more exact than tliat required to ])rov(' a l)rii)e actually given or accepted. The res)iondcnt entrusted about S'Oi) to an agent for election purposes without iiaviug sui)ervised the expenditure. //'/i)lication of tiu; money i)y the agent, or i)y those who received money from him. I'nt if a very excessive sum hae t'ting on ling' cx- nir fioni H) far as p. 12.) S71. William ' to Cluuiiic for Airituous liipior on the polling day. with the olijeet of promoting the election of a eaiididate, will make his election void. When all the accounts and records of an election are intentionally di- stroyed hy the responresumptioii will be made against the leL'ality of the acts concealed l>y siicii conduct. Where bribery by an agoutis proved, costs follow the event, even though personal charges made against the respondent liave not lieen proved, there liaviny been no additional expense occasioned to the respondent by such ))i'rsoiial cliarges. Till' petition contained tlic nsnal chai'ges of corrupt p)-actic('s. Mr. J. J\. A'rrr foi' the petiti(^nei". Till' Jii.-o to Perry." He stated tliat lie did go to Mr. Peiuy, and that Mr. Perry said he had no money. And it further appeared that the witness in fact got no money either from Mr. Lauder or from Mr. Perry, and that ho in consequence voted for Mi". McFayden, the opposing candidate. As to the treating, it was proved that on various occasions Mr. Lauder expressly forbade all treating as well as everything else of an illegal kind being done to promote his election. But it appeared that on the nomination day, at an election meeting held aftei' the nomination, in the Orano-e Hall in the village of Durham, refreshments were brought into the room l)y one Woodland, and were partaken of by the persons present. Mr. Lauder deposed that he knew nothing of these refreshments l)efore they were brought in ; that he told tlie parties bringing them in to be careful, and that they might be " coming too near the law." He further deposed that he did not pay for these refreshments, and that no account for them hail 1)een rendered to him. There was no evidence to the contrary of what Mr. Lauder thus deposed. There was, however, evidence that he diil pay foi- refreshments pro- vided for various committees at their election meetings. The central connnittee at Durliam consisted of about nine persons ; the local counnittees did not seem to have respectively comprised so many. There was evidence, also, that on some other occasions there was a general treating of electors at the close of public meetings of electors which Mr. Lauder had been addressing, and while he was in the house where the treating took place. There was no other evidence of knowledge or consent. One -''"sts [A.D. [r. Lauder ;ion ; that lie oifered said that t he also ly money; a no offer, to " go to '■, and that r appoaiv(l ' from Mr. »nsequenee te. )n various inf; as well to promote loinination ination, in 'reshments , and were er deposed efore they • qno; them !>• too near )t pay for them had ice to the 'here was, iients pro- meetings, about nine 1 to have evidence, a general ee tings of and while ice. There ;ent. One 1 Thomas Smith swore that after a meeting held at a tavern in Egremont, which meeting ha.'•'■ ¥\ iliil i i . i 1 ifi: i r)() I '!{ () \' I N C I A I . i: I- KCT I ( t\S. [a.d. and in the course of it lie eonmiittod the ullcuccl ucts of l)i'il)ery. The allo<^(!(l bi-ibery was this : it a{»p(!ai'0(l from liis own evidence that after conversing with certnin named votei-s severally, a (hiy or two hefoiv the eh'ction, lie (h()|)ped money f(M- them on the ground, and then walked away; that in eacli case he meant this money to he picked up hy the voter; that liis chief oi' oidy ])Ui'])ose in this Avas to secure the voter's su])port for Mi-. Lauder; and that lie [)osed ott'ei'. Where a conversa- tion is not followed by the act spoken of, we ai-e not, unnecessarily, to presume a bad intention. In an election, means are re([uired for lei^itimate pui'poses ; and I am not at liberty to infer that Mr. Laudiu- meant " I shall furnisji you with plenty of means for illeiL^^d purposes." The case of Black is weakei- than that of McKechnie. He says : " I heard Mr. Laudei' had a lari>;e amount of mono}' for election purposes, and 1 askeil him for some. He refused it, and said it was illeual, and told me to "jo to Peiry." Black aj)[)lied to Perry, and !\"iy neither gave him money nor the promise of any. It would be prepostei-ous to say judicially on this evidence that Mr. Lauder or Mr. Pei-ry offered or promised to n'ive the money which they both refused to give. Both McKechnie and Black voted against Mr. Lamler. Next it is said that Mr Lauder entrusted largo sums to Perry ; that lie should have supei'vise Kor these reasons I tliink i\w personal charf,'es not llllldr i>tlt. Counsel then addies^.d the Court as to bi-ibery by agents, after which juau(ler had said or done anything to create a necessity foi- this concuritnee, ami there is eviilenee to the contrary. Perry irceived no instructions as to the mode of the dis- ti'ihution of the moiu'V. That was left to his discretion i and Mr. Lauder in his eviih((je ccn^e (1 C)"M. t.^ H., (iO). There Mr. Justice Willes .said : " I have ah-eady in the Brwdlei/ croic {lb. LS) had occasion to decide this much. There it appeared that the sitting membei' had put a sum of nionc}^ into the han\ INCI Al, i:i.K( TEONS. [A.h. II 'iiiiii "I'M,, •"Hl„ ! ■ ' ! i ^ sittin;^ iiifinlii'i was icspoiisililr to tlif I'lillcst extent, not only t'<»r wliat that anent niij^'lit do, Imt I'or nil the ])eo|>U' ■\vhoiii that u;4ent employed niij^ht do: in short, inukiujL;" that a<,'ent, a>4 t'ai- as that matter was concMTned, hiniselt', and lieinjjf resjionsihle for his acts. I see no reason to doulit at all that that is perfectly eorreet." This is no new law: it has l»een the I'ule over .sineo there was a reeoi'd of the law ot" Pailiament ; it is founded on reason, and if another rnle were adoj)tt.'»l, a candidate mi^ht j;ive liis ai^^ent money, taUe the l>er.,-iit of the ex- ])eny ii;,'<-nts (.1" nifctiiiMS of doctors, in ,,rdcr to |)ioniotr the election, if the validity of the elec- tion had in inv \ i'W depeiidtMl on that (iiiestion, I would, il, ,.,,lisr(|ll.'liec nf thr decision h\ Ww (,'/nii/(trri/ msr, {,i) li;i\c iTSClArd the |><>illt foltllc ( •] lillioll « >f t lie ('(inrt nf (jdiccn's Heiicli. If it had Im'cii necessary for nie to decide as to the etl'cct of distriliutiiit;' li<|Uor on the ])olling day, 1 do not at pre- sciit sec how I could a\()iid on that ;^rouiid. With ivnard to the destruction of the accounts and napei's, I consider the matter a \cry ,u'ra\c one. If the case weie stripped of all othei' circinnstaiices hut the destruction of the re<'oids of tlie couiniittee and the ai'couiits, !)y a jiersoii holdinj;' the position of Mr. i'eri'y in the election, I incline at pi-esent to think that it would he in\ duty to draw the strongest possible conclusions against the respomleiit ; and that 1 .shoidd make every |iresuniption against the legality of the acts which were coiicealeil hy such conduct. The only safe course for an honest can-e is that costs follow the event where ])i'her^ liy an agent is proved, and 1 follow that practice. the Ji(:^pomh,, tlien urged that there should he an apportionment of the ccsts, as according to the judgment (o) Ante y. s. t' I 62 rROVINCIAL ELECTIONS. [A.D. of the Court, the petitioner had been successful on some only of the issues. The Vice-Chaxcellor said tliat there did not a^i^vcar to have been any increase of the co.^^ts on account of tlie issues on wliich the petitioner liad failed; that his observations as to the destruction of papers were to be borne in mind, and that, under all the circumstances, he did not think there sliould be any apportionment. (.") Juunuil Lcf/is. Asmn., 1871-2, p. 13.) NORTH YORK. f t'"''N .,,,.!'! Before Mr. Justice Galt. Newmarkkt, 14fh to 17th Xovcvihcr, 1S71. Nelson Gorham el ai, Fditioners, v. Alfred Boultbee, Eci^pondvnt. "Illegal ami P rohihit.cd Act^.'^ — Treutinq — Scllinij Liquor on Polliiiij Diiji — A'ji'nry—CoMx — Spackd Ca-v. J/' hi, 1. — Tliat " illegal and proliil)ite(l acts relating to elections," in the definition of corrnpt pivictices in tlie Cc)ntr(jvei'ted JOlectioiis Act, 1S71, were confined to hrihcry, hiring of teams, and ii'idne influence, as defined bj' sees. ()7 to 71 of the ]']lection Act of Isd'^. 2. — That violations of section (>1 (treating at meetings) and section 66 (giving or selling li(jiinr at taverns on jicdling day) aie not coirupt 2>ractice9 within the meaning of tlie said Acts, unless committer on IS," in the ions Act, iiillueucc. soetioa ()(! )t corrupt niiittcil 111 '-^1 luoutinjfs nied otlier TJ^^^H ; were not lent. )f Queen's s a serious gilt eiiter- pt prac- "9 aio. The , 1,300; 1 for re- m ^my^ -1 NORTH YORK. 63 Mr. K. MnckarJc, Q. C, Mr. JJethvMC, and Mr. McMnr- rirh, for jifititioner. J)r. McMvkad and Mr. B'Arci/ Boalton, for respondent. The evidence as to a<,'(!n('y and treating was as follows : iJLivid C. Bnrlr : I live at Newmarket; am a partner of responting at the Royal hotel ; 1 took no pai't in it. I think I talked to a good many about the election. I knew that some of them were leading sup- porters of Mr. Botiltbee. T did not act as scrutineer. Cross-cmmined : I was not a member of any connnittee. I was not appointed in any way as an agent. T knew nothing of the meeting at Hewett's until I got there. Mr. Boultljee was not present. I was the first person who (ordered liquor there. I said tliat all who wei'e not Boult- bee men were re( [nested to leave the I'oom, that it was a meeting (jf the fiiends of Mr. Bonltbee alone. We tlu'ii began to dincuss the prospects of the election. Fatrirl' McCntclicon : I reside in Vaughan. I voted at Nobleton. I saw Mr. Morgan there before the poll was open at Street's tavern. Mr. Street would not sell any- tliinu'. Ml". Morgan said he would run the machine anv- way. He went in behind the bar, took down the decanters, and treated '•] or 4 persons. He paid for it. He acted ;i» scrutineer afterwards for Mr. Boultljee. David WiUoiujhhji : I live in North Gwillimbury. 1 was at a meeting at Huggard's. I made up my mind io support Mr. Bonltbee. There were probably JiO p(!rsons there; Mr. Bonltbee Avas there. There was no section [a.d. ,s anxious for their with Mr. • there. 1 n |llinibury. 1 iny wind to ly 80 persons Is no section NORTH VOHK. 67 1871.] '/\xvn nil' to canvass. I did canvass ; I went through aliouthalf the township. I only wanted to know how thev were going to vote. T did not keep any list ; I made ni) report. I ilon't know that I was ever on a coni- niittee. Theic was some of us met at Bellhaven ; I was appointed cliairman, and Mr. ATiderson seci-etary. Thei-o was a conversation among ourselves to ascertain liow manv would support Mr. Boultbee. I was, dui-ing cacli day fo)' about foui- days, making tlie tour of the township. f went principally alone ; the last day I went with Mr. P)Urke. I got into the buggy and went with liim. He was calling on the people aViout the election on behalf of Ml'. Boultbee. I was at the poll at Bellhaven. I think Mr. Burke was scrutineer. He had ]i(|uor with him. There may have been a dozen ; I saw altout half a dozen. I saw him give some of it to others. I tlid not see him give aiiv of it on the day of the election. I took a little myself on the polling day. {T/ic witness here claimed a certificate under the statute). I gave Mr. John Morton some, also John Ryner ; it was after they had voted. 1 ga\e li(|Uor to four in all. I do not know what became of the other liottles. I attended a meeting at Bellhaven and Raven.s- hoe; Mr. Boultbee was present; it was held in a hall iuljoining the tavern. There Avas a drink after the meeting. Alfred Boulthec, Bespondcnt : I did not ajjpoint any agents ill this election. I had no committee appointed. David Burke was not employed Ity me in any way to for- ward tlie election. I remendier him driving; me thi'ou'di KiuLjand across to Whitchurch to address meetings I had called. 1 believe I stated to every nieetinu' that I would ha\e no agents. I did not go round canvassing. I ap- ])ointed meetings and addressed them. I was present at the meeting at Huggard's. I had little oi- no organization for carrying on my election. I asked Mr. Morran to "o to Nobleton. I think there were H or 4 who offered to act as scrutineers; they ai'o the only persons I appointed. I appointed no persons in North Uwillimliury. \l'' '1^ 1, \il :/i!K, '! '"Il)i„| 'I ..„ ''Ill 68 PROVINCIAL ELECTIONS. [a.d. Cross-e.i'aminrd : I may have .soon (h'inkino- at some of the meetings ; I furnished none ; I «liil not treat. Tlie meeting at Huggard's was, I tliink, called at my sugges- tion to see what my prospects wei-e at the election. They were persons who were fiiendly to me. If those persons had not agreed to support me I do not think I should have come out ; I relied on their support as one of the means hy which I could cany my election. I 1)elieved Avhat Burke could do ho would do. 1 think Willouuhhv was at Huggard's. After the argument of Counsel, the following judgment was delivered : Galt, J. — 1 would not have the slightest (jhjectioii to avoid the responsihility of sending this case to the Queen's Bench ; but in that case I ought to do so onh^ because 1 had a serious (loul)t as to what the law is; and I ought to be .satisfied also that the Coiirt would enter- tain a dift'cM'ont opinion from mine ; and in neither vioAv can I hesitate to give judgment at pi'esont. The case has resolved itself into two points: iirst, the effect of the meeting at Hewitt's ; and second, the treating oii the polling day, and whether there was such a violation of the ()lst and GOth sections respectively as would render the election void, {a) I must say I have a strong opinion that the illegal and pi'ohibited acts, referred to in the definition of corru])t pi'acticos in tlie intei'pretation clause, in section "A of the Cyontroverted Elections Act, 84 Vic, c. •'}, arc confined to sections 07 to 74 inclusive, {h) The fact that undue inHuence and carrying voters Avei-e not sutli- cient to void the election unhhy was N'OP.TFI YORK. 6rr udii'ment (jl)jection Lse to the lo so only ^^v is; and )Vilil enter- ither view le case has cet of the ng on the iijlation of uld reudei- ng opinion to in the ,ion clause, ,4 Vic, c. :5, The fact •e not sutli- ets, enables cover the iirnisliod to any jction : s. (Hi, iill lUs or fenmiiitiil jluctoral district. iididatc '.iuilty of y electors to the eviilen c, thou},'li 3 elections void. 1.S71.] (Ictlnition. Tt would he impossible to hold that every violation of the Act would be a corrupt practice. The (ilst section is perfectly intelligil>le, when read with the headinf " keeping the peace and good order at elections." Bearing in mind tlu; object that heading points out, we can easily tell why the word " agent" is omitte, and the number of voters on the roll was 4. ()()!». //'/'/, that the expenditui'c was not excessive. Where the evidence as to bribery consists of offers or proposals to bribe, the evidence should be stronger than with respect to actual bribery, "Where three votei'S swore to three separate offers of bribery made to each of them separately by an agent of the respondent, which such agent swore were never made by him, //'/'/, that the evidence was not sufHcient to justify the setting aside of tiic election. Tiie language of Martin, IJ,. in the ]\l^(7u w/r appeai'ed for petitionc^r. The Respondent in person, and Dr. JFcMu/utel, for the respondent. The petilionei- abandoned tlu; charge of personal ccnn- plicity of respondent in any of the matters charged in the third and twelfth pai'agraphs of the petition, hut not such acts by his agents as might affect his .seat ; and pi-oposed to show a large numbei- of votes bribed by Mr. Cameron's agents, and that undue influence was practised by said agents. The scrutiny was afterwards aV)andoned. On the trial of this petition evidence was given to .show the expenditure of various sums of money on behalf of the respondent by his friends. It was mentioned inci- dentally that Mr. McMichael, respondent's law partner, had paid some charges for printing, and this was the ordy .sum that was expended by the respondent himself, and as to this, it was not suggested that there was anything illegal. Any other moneys that were expended w<'re raised by the friends of the respondent, and if any was improperly or illegally expended, it was without his knowledge and contrary to his express directions. The cliairman and secretary of St. James' Ward, the most populous in the division, were examined. They ex- pressly denied the payment of any moneys for any ille- gal or improi)er purpose ; and the secretary (M/'. Scolf), through whom all the payments were made, said they were made on cheques, and proper receipts and vouchers were taken therefor, and the same could be produced if desired. F. IFarioick, the secretary of the couunittee of St. David's Ward, was twice examined. On his first exami- nation he stated he had prepared books from the roll ; the [A.D. t Francis t luunhcr L'he votes Medcalf, )etiti()n(!r. /, for the )Mul coin- fed in tlie not such proposed Jjuneron's I by said .1. n to show behalf of )ned inci- ' partner, i the only f , and as anything raised by iiproperly 'dge and Vard, tlie They ex- any iHe- Scotf,), aid they vouchers xhiced if je of St. it oxanii- roll ; the bsTl.J FAST TORONTO. 7.'} / Looks wn-v suppbed by tlie general connnittce. Tlirre were fifteen or sixtt-cn of tlif connnittce, and they diuw some other money paid by Carruthers for souietliing connecteil with that work. Several per.sons were pair his .services. He knew very well Mr. Cameron had never been in the habit of paying for such services, and he had very little hop(!of ev(!r receiving any foi- his; never received anything fi'om any one for his sei'vices. Mr. Cameron visited the committee I'oom ani^'"{()." There was a pencil m(!ni<)rani McDonald, whose name was on the list for $'). He borrowed two .sums of ii^o from Carruthers, who was his father-in-law, during the election. He said he received [A.n. a pfucil If that uoimtiiii^ itt'ins ill lation to ilvvritini;, aiii()\iuts ii'i'iithcrs I' ])a|)('rs thought 10 parties 1. They d s. They { went to di. lO was his received 1,S7I.| KAST ToHoNTo. /•> riotliiny, nor yiive aiiytliiiij;' to any <>ne to votf for Mr. Cuiiirroii. Carruthers in his cvidiMice said Ik; paid Mc- Dniiaid two d<»llars for distrilmtinj;- cards, etc. ,A'//// Uniblij, whose name was on the list for !?'), says he iicv.r iiiiidr any elaini lo Warwick ; Imt Warwick tolJ() foi' use of rooms, suiil C'arruthers askecl him what his cliarj^-c was. lir told him he maile no claim, an(), and in the hand^i of Mr. William Hamilton, the younger, for a similar purpose, i?lOO. He states that when giving the money to Cari'uthei's, it was mentioned the money was required for posting l)ills and other legitimate purposes of the election. He understcjod the ])ayments were to he made for bill delivering, bill posting, and the proptu- (expenses of the election. The money given to Mr. Ham- ilton was for St. Lawrence Wai'd.ox.ttintr bills, tickets and cards printed, &c. He understood Mr. Carj-uthers was to do th(^ necessary printing, the distrilniting tickets, antl pay the other legitimate expenses. His impression was that some printing was done by the central and some l)y the ward committees. He supposed parties had to be paid for taking around tickets, and for rooms to hold meet- ings in, and other legitimate purposes. He tuld him to be careful and spend the money for legitimate purposes only. Thomas C. CluHholm placed in the hands of Patrick Hynes about SiSO, and of John Reid, i?80, and he spent about S40 himself ; making his expenditure about $200. He gav(! the money to Messrs. Hynes and Reid to expend in printing and distributing cards, paying for committee rooms, &c. He told them he did not want Mr. Cameron defeated, and that they were not to expend the money for any purpose that was not legitimate. He believed it was so used. He thought it was to be used in the three wards. He gave it to them because he supposed they would use it to get canvassers and printing, and oth(!r legitimate purposes. Did not think the central connnittee printed all the cards; thinks there were other cards printed besides. John Carruthcrs said there might be as high as $5 a-piece paid for carrying around cards. He said he had paid all the expenses that had been paid in St. David's Ward, as far as he knew. Could not say how much he paid in these matters. It might or might not l)e $100. It might or might U( him ilirectly there was to be no money paid for votes. 'I'hinks no one has asked him to pay for aiiv services reiidered dui-ing the election for Mr. Cameron. He might have given Louis Walker a dollar or so. He kept no accounts of the pa_, ments ; had no reason for not doin"- so. If he paid Walker any money it was for delivering cards. No one received money foi' voting, nor did he ever give any one money to })ay them foj- voting oi- for influencing their vote. He was strictly foi-bidden by Ml'. Cameron to pay money. Heard him say, if one dollar Avould secure his election, lie would not give it. Was nevei' authorized hy Mr. Cameron to pay for dis- ti'ibuting cards or anything else. If he did so, it was on his own account entirely. He was sure that in any money paid for distributing cards lie did not allow each one more than at the I'ate of a (loilui' a day for what he did. The canvassing and committee meetings, oft" and on, lasted ultout two weeks. No person he employed as a canvasser or scrutineer was ever paid by him, even at the rate of a dollar a day. On his subset [Uent examination, he said people came themselves and volunteered to take a book and u'o and canvass for Mr. Cameron. There were ari'angements as to certain iiarties takiiifj certain districts. He would uive eac'i iuan a couple of streets, perhaps four or five ; for iwo other streets, perhaps a dozen. Sometimes they would send men o\er the same ground. He thoim-ht some of the men made mistakes. Oidy paid parties for delivering cards. Might have had notices sent out for holdinu' meet- ih ■PROVINCIAL ELFX'TIONS. [a.d. IMJ '%, •% ing.s — that was most of it, Tlie persons so employed were generally votei"s. He spent all the money he received for those pm-poses. The services they rendered were not as well paid foi- as if they had been laboring men eniploye.') ; some may have got more, others may have only got one or two dollars. He could not say if any of those mentioned in the list as entitled to money in St. David's Ward w(.'i'e paid by him. Could not recollect that they were. John Rcld said he received money from Mr. Chisholm. He did not know how much ; did not count it. Was certain it was not 8100 or Sl'OO. It was under 8100; he did not couit it. It was over 8^'). He could not come any nearer than that. The money was spent in distribut- ing cards through the ward. He had no idea how many were disti-ilnited. They were given to the men to dis- ti'ibute, two or three together distributing them. Knows the names of a goof his own and Mi'. Chisholnrs \\n> tirelv in the distrihution of cart the S2. Thought there were about 1,000 voters in St. David's Ward. Did not know Mr. Hynes had any money to spend. Mr. ('hisholm did not tell him .so. Did not tell any of the committee he hail funds for distributing canls. No ])aiticidai' arrangements were made by the conniiittee foi- distributing cai'i Is, except that certain men had cn'tain localities b)r distributing cards in. Some weie paid ami somi- not. He paid sonu' not nientioneil by the C(jmmittee. He gave cards to men to disti'ibute himself. The .seci-i-tai-y of the committee in St. David's Ward genei-ally disti-ibutfil them. He was not awai'e that the comnuttee knew he was ilisti'ibuting tlu-m pi-omi.scuonsly. He t(jld the men, w hen lie ga\'e them the cards, the streets he wanted tl.eiii distributed in. He could can\ass about -SOO in a day. Did not think that an unreasonable number,; thought .')<'0 nut imreasonalile. Some days he could not canvass o\er !*'•. ."sometimes a man would require a longer time to persuade. He said thiee or four hundred would be a gi-eat many to r..nvass in a day — to vo fi'om liou.se to 1 louse If it were oil tivi Iv necessary to throw the card into the hou.se, three or e hundrei I card,'- could be distributed in a day. Did not tliiiik he spent !?7'> ill distributing tickets. Mr. ('hisholm I not pay anything to him for the purpose of influencing e held liable for the acts of his agents, the ol)servatioiis of Martin, B.. in tlie IFctl- min.^ft')' casf (1 ( )"M. \' H., !)")), seem to me to enunciati' ■opinions that will meet with general a})probation : " Tht' law is a stringent law, a liai'sh law, a liai-il law ; it makes a man responsilile who lias dlrecris buliidden a Llilng Id be done, when that thing has been done by a subordinati,' agent. It is in point of fact making the relation l)etwe(ii a candidate and Ids agent the relation of mastei- and servant, and not the relation of principal and agent. But I think I am Justified, when I am about to apply such n of 111 to sliow EAST TORONTO. 83 1S71.] In tlie Brndfurd ar.^c (1 O'M. cV H., 30), tlie i-esponrlent opened an unlimited credit at his l.ankei-'s in favor of his agent, who availed himself of it to the extent of up- wan Is of £7.200 ; and the agent sent tlie returnhig otlicer aiiie'ie ahstract of the totals of outlay, unaccompanie'] of the ca.se), that his impression was, if petitioners counsel hail put in the account, and proved that no hills or vouchers had heen delivered to the return- iii<-- otheer, he- would have calleil on the respondent to prove the legality of every i)ayment C(jntained in the aeeount from tin.' heginning to the end of it. His impres- sion wa."' that that alone woulil have Miade a. prima faric case against any pcn'son, especially when he called atten- Moii to the amounts contained in that papei'. The Imperial statute referred to rei|uire(l that no elec- tion expenses sliiadd he pai])lied to him foi' their pay stated that Carrutliers and he Inul received monev to pay these expen.ses, hut had ke))t it them.selves. Mvnes said that Carruthers told him lie had received some money from ^Ir. ti(^oderhani to jiay for printing, etc., hut he understood it was only >^.')(), It may have lieeii lie had only received .*?')() then, as Mr. (iooderham said he paid the money to him at ditferent times. The evidence of Reid was e(pially un.sati.sfactory, and did not impress me with the conviction that he had spent all tlie money he receivcfl in paying expenses connected with the election, whether legitimate or otherwi.se. It is contended that the decisions under tlu' Engli.sh statute are not ajiplicahle to the stati' of tlie law existing here. Ivefeience is made to the three clau.ses of the second sec- tion of the Imperial statute, 17 A: 18 Vic, cap. 102, whicli enacts "That every per.son who shall directly oi- indirectly, hy himself or any other per.son on his helialf, make any gift, loan, offer, promise, procurement or agreement as aforesai"!, to or foi' any person, in order to induce such ' \ 86 I'HOVIN'CIAL ELECTIONS. [A. II ' Mi' "'"'.,. "%. poi'son to procure, or t'lidi'fivor to procnrr, tlu- return (if any ]»ei'S(»ii to serve in I'urlianient, or the vote of an\- voter at any election,"' sluill lie Hiiilty of lirilieiy. In the Con;ifri/ni.ir(\ ()"M ,v \\.. KXi). .\Fr. .Instice Willes, in referring' to tliis section, says: "Therefore anythini,', ^reat or small, which is ^iven to |irocnre a \-ote wouhl \ lie were ittee couM not be for /O a voter, I am not statute so i,ble mean- 'ords indi- " in order to iiidiicf >n('li person to ]>rooun' oi- endt-avor to procure tlif ivtiirn of any pfi-sun to serve in parliament, or the \i)trof aiiv Vote)' at any election,'" — the person so doino- shall III' ^nilfy of hriln-ry. Ill ihi' f'di-i ii/ri/ '■rts, , tilt' point was whether one eaiuli- (|atc oll'eiiiiu' to pay the expenses of a eo-eandiilate was ii'lliltV of ip|ihe|\ . and ret'eleliee lieiliL;' iiiaile to the |iro\'iso ill the section of the KiiL;lish Act. the leariie(| .Iiid^'e (Willes) said. ■■ It does iiiit relate to the expenses of voters. To pay tlie expense- of Voters on condition of their voting' or ahstainine- from \otiiii:-. is iiiKpiestionaltly hrihery."' He tjieii proceeds. ' IJiit the candidate may pay his own (,'x- peiises, ami employ voters in a \ariety of v,a\'s ; for instance, he may employ \oters to take arouinl ailvertisinji," lioards, to act as messengers as to the state of the jioll, or to ket'i* the jiollin^- booths clear. He may also asow, un- i|Uestionably if the third clause of the second .section was to be taken in its literal terms, the])ayment to canvas.sers under such ciicum.stances, beinn', ns it is, a payment to induce them to pi-ocuiv votes by nieaus of theii- canva.ss, would come within the terms of this elau.se, and would avoid the election. \V,. luive. therefore, a te.st supplied of tlie iiieaiiin.-of tile tliinl clau.se of the second .section, by means of which we .see that it was not intended l)y tliis section to do away with every payment mam him during' this election, ST) at one time and 8') at another, and this had nothing to do with the election. He .seemed to he a irm sunnorter of Mr. Cameron, and I am not inclined w to think Cari-uthers f^ave him the ii^lO on account of his .sei'vices during the election, or to hi'ihe him. The next point is that, with intent of promoting Mr. Camei'ons election, Mr. C'hisholm spent money foi' supply- ing drink to a meeting of electors, a,ssend»led for the pur- pose of pi'omoting .such eU-ction. Mr. Chisholm gives evidence on that jioint, and it is the only evidence given on the suhject. He .says his own ex- ])enses were, fui the whole, for cah hire and money paid ^ ^^HBRPffiBH 1 P»r|ij::-|.'' 1 •\ ,ji S^ ak<*'iB ijr^ 1 '•) '^'WU/tSM r:i ! . *'!'fl 1 ' • i '* Ai . . -J '' ' ■■ ^^ -i 'tm 1 r ' i 4' 11 ' f :'hi -, i ■'^ '-9 .1 !' I r N.^ i ' II lf||: rr! fX) I'KOVINNIAI, KLECTION'S. [A.D. tit \vai<+(). Hf was ill Kefon' thf I'lt'C- tioii, aiui liin'ntioned. Ht did it on his own Jicconnt. in d oni voters, at lOs. a-hejid. Mr. .lustice Willes hail to consider why the a«fent employed tlio.si' men, and he sai whole, however, I come to the conclusion, that it was an unauthori/.eil act, done hy Baraclou<,di for the purpose of ol)tainin;f popul"rity for himself, and that it was not, either in res[)ect of the (piestion of law, or upon the e.stalili.sht^l facts, an act whicli I can desij^nato as havin<^ (a) I'lijce 1.1, anii: I.S71.] EAST T<»H()NTO. 91 Im-cii l»i-ilM'iy. It is an act wliirli, so tar as I jutlicially can, I ifpit'lit-nd and cdmlcinn : and if I tliou^dit it had lifcn donr l»y him with any vii-w of advancinjj^ the inter- ests of his eni]>loyers, so that I had to iinpnte the inten- tion to do that which was the natnrai consetpience of the act, I nnist have held the electiii »om otters were made wen George Suiith, James A;,;new, and Samuel Nishet. George Smith said that one of the Gooderhams, he did not know which, .said if Ite would vote foi" Mr. (Jameron 1S7I.] KAST TOHONTO. 03 if \v<' Jill suppoitcil liiiii ili>wn thcif, th«'V w<»\il(l ir\\i\ tlio riglit to liavt' South Far': Strcrt tlnou^'h. II«' Ixlievcil they surv('y«' for him to-morrow. Nisliet.said he could not promise. Carru. hers said if he Went with him he would not i"ue it: that theic was lots of money J^oin|L,^ He (Cai'ruthers) ,sai"l hefoic Wednesday oi' Tlnii-sday ni<;ht at the (nitside, he should he iccompensed. McDermott and McDonald pressed him to ;4o with them — said there was lots of i nonev II. aske< 1 1 low money could he u.sed. Thev saieen t'oi- Cameron. He saitl he thon^fht he wante<| to he houifht, coming- rounil V a committee room the ni;j;lit hefore the election, not know- ing; wlio he was ^oin*^' t(» vote foi-. In the Chi'llnilunn ro.sr (1 0",M. iV H., ()4-n:.), when tlie t|iiestion came up as to evidence in the ea.se of an oH'er to U'le the evidence as to l.ril nite H aron Mart HI sail I W liriltery consists merely of otirrs or proposals to lnilie, the evidence reipiired should l»e sti'onyer than that with respect to hliliery itself it oUj,dlt to he made out heyond all douht, ltecau.se when two people are tnlkin*; of a tliin^j; which is not carried out, it may he that tliey lionestly J.five theil' evidence; hut one Jterson Ulider- mother ditfeientlv from what he >tun(ls w hat IS sai< 1 1. Mltellds It. Looking;' at the whole evidt-nce as applicahle to the offer to hrilte said to ha\e heen made hy Cai'ruthers to Smith. Aiiuew and Nesliit, 1 rih ese cases reouire wliieh I think the lules lai I'HOVINCIAL KLKC^rioNS. [A.n I " ^t^ I Ml I'" I i ^^ li " the lju>;^Mm;,'c ()t' Baron Maitiii, in tlic Wttjnn ni.sr (I O'M. & H., IH2), as in the |»iiiH'i|)lt' on which a jne taken into consi '.il/i Si i>f< mill r : .'Uli Sitri inlur, IS^l, ll(»iu;in' Akmstkon'c, r,f}tl<>iin\ v. Ad.vm (/Uooks, JllSIKIIldt llf. Iktiilt jlih s of ('iiiiilhhih Ell ct'iod (.'(nnin'iltii' hiris'iitiix, .l.'f \'ii' :iii ■Jiiiliji iict'uiii ii" Juror — C'tiiirdssir" Jor S/iir'nil IJInssi^ oj' Voli r-i — Mitiiiij /mil/ In I'li/i r-i not ri iiilirhi'i .S'' /■■ A:i' iiri/ inn Aijiiiri/ Uii/ilirii/iiiii iif lU'ijiil I'ltjinii Ills //iriiiij iij' '/'i niiis, I Siih. r .'/, '/_-<'„.()( I fjiitli iiitfiiilcil tliat lli^s I'lfc.'tiitii sIkuiM 1 IC ('(lll- iliK'ti'il li'i^iilly, and |>i'intcil a syii()|>.-c guided liy "the I'trincijiles, practice and rules on which election petitions toiieli- iiig the election of nieiiilters to the House of (.'ominous in Kngland are dealt with." is, that the .Fudge is to act on the jirineiples Ujioii whiili J'^lectioii Conimittees have acted, where he has no light from the rules H^ a . i f' !T '-i If OS PHOVINCIAI, F.I.KrTloNH. [A.n. Hi ii Ir^^ !'■ t- 1 wliicli liJM iiwii |in>fi>M!«i(iiiiil i-x|H>ri('ii(!(< Nii|i|ilioH liim witli. Ami Iir in ill Hililitioii to III' IkiiiiiiI )>y tlic ilcriMJiiim nt' tin- Kota .IiiiI^'cn in Kn^'laiul trying clt'ctiniiH iiiiiIit iictM Hiiniliir to mir dm ii, in tlii> xaiiK' wiiy i\n the ('(iiii'tM fi'i'l liiiiiiul liy tlifir jiiiliciikl ilccixioiiH in otlicr Ir^^'ui niiittci'H. WIhti' ill onliniiry imhi-h tlirrc in fviili'iu'c tu n>i to it jury, lii.t on wliicli tlic .lii;c of liiilxny. 'I'lic lioiiii I'lilr )'ni|iloyiiiciit anil |iiiyiii<'iit of a voter to canvass voti-rs liclon^'iii^ to a |iartii'iilar ri-ligioiis ilcnoniiiiation, or to tlic Hanic tratlo or liiisini'ss, or to tlir same rank in life, or to canvaMH votui'M who only iinili-rHtanil tin.' I''ri'iii'li or < 'cltic laiij^'iia^'cH, is not illi^^nl. 'I'Ik' fact that hiicIi a votiT has Mkill or kiiowlcil^t' ^tiiin|>loyiiU!iit illi';{al. Moiit-y was paiil hy an am'iit of the ri'N|ionili;iit (■'?7 each) to (U'rtaiii votors for canvassing,', they ohscrvinj^ that "a little money in I'iection lime \v;is alloweil lor knockin;{ aroniul," which oliservatioii the a;,'ent Tlie a^'i'iit ilenied it van COIISII h'le.l 401111; aliollt til solicit votes. |iaii| witli any corru|it intent, althoiii^'h his evnlcnci was not satisiac tory. Th le voters swore tlic money was |iai\ the 1110. icy \\ as | aid after the election, d charj hv th :lerk without the Un in the aj^cnt's ai'counts as 'p.iid .1. Landy .S.'{ ' hut ow I dt(e of such ayeiit Aimlher a;,'ent of th pondent (Mel >. ). who was treasurer of tlie w ard, anil was aware of the claim, and liad tild tlie voter it would lie made rii^lit, paid tlic hr.st aitt'iit's aeeiiuiit. hut did not then take particular notice of the pay- ment, and it was not explained to him. I he clerk li.id heeii rei|ue.sted liy his employer (the ai;eiit lirst mentioned) to canvass a particular votir, hut was not einiiloycil as a canvasser gi'iierally hy any oiic. .//' /'/, I. That such clerk was not an ai^eiitor suh-ancnt of the respomhiiit. •J. -That the jiaynient of the aecoiiiit liy theau't-iit (McD.) was not under tile circumstances a ratilieation liy him alter the act, so as to all'ect the election. ('alls and carria^'es were hired for the u.se of ciiminitti'c-men and can- vassers during the eleetiiinand mi the day of pollin;^, with iii.-^triictioiiH to the drivers that tliey were not to convey voters to and from the poll. One call was however used for that purpose foi Uie gr<;iter ]iart of the day, hut without the assent of the agent of the respondent, who had chari'e o f th ill Jlrhl. — That as the evideiici? did not show that the c.ahs and carriages were eolorahly hired for the ))ur]iiise of hriliery or conveying voters to the poll, or that the luieeah was so used with the assent of the agent of lospoiident, the hiring was not an illegal act witiiius. 71 of.'VJV'ic . e, 21. Ohscrvations 011 the reasoiLS why candidates sliouM he held liahle for acts done hy their agents. The Taunton case (I O'M. A. H., 184) approv ed. ^71.] WEST ToltnNTO. 09 The ului-tioii wiiN niiMtiiiniHl, hut it liciii^ in tlio [xihlic iiit«!rimt tlwit tlio iiiiitti'i'M Iti'iiii^'lit forwiii'il mIiiiuIiI liiis'c lici-ii iiiijiiiri'il into, inul hh tlii) ii'.H|>iiiiii('iit iiail not L'xt'i'i'iNcil Miipci'vixiiiii nvcr tlic r\|it'iiclituicH in citiiiiuctioii with the cK't'tion, tlif |H!titiiiii was iliMinmMnl without I'dXtM. Tilt' [n'titiiMi coiitaiMt'il tlir usual clmr^ft's of i-cirrupt piiictict's n|L,niinst tln' it.s| |)()U) Irut )Ututs, an< 1 i'laiiiH'il tilt' si'at tor tlif iJi'tV-atftl caii'iitlatt', .loliii W'allis. Till' voti's at till' t'lfrtioii wcii' : For n's|)inii|t'iit, 1,4^7; for .luliM Wallis, I, '{HI; uiajtnity tor ri'sptiuili'iit, 171. Mr. Ifiirrixnii^ <»>■('., t'nr prtitioUfr. Mr. /li/liinir, for ri'sjioinlfut. Till' I'viili'iii't' alli'i'tiu;; tin' acts of tlu' ri'spondciit ami Ills a,i,'i'ntsat the I'li-ctioii is fully st't out iu tlif juilgiiit'ut. Hn'iiAitDs, ('. ,1. - Tilt' pi'titioniT, lloluTt Aiinstroutj, iTl tlir tliinl j)aifi!;raj)li of his pi'titioii, ii'|)n'si'Mts that Ailaiu ('rooks, who was h-hmh'iI duly rli'cti'il to ri'itri'smt thn sajil division 'm tlir i'arliaiin'Mt of thi' Proviui f ()iitario, iit tlir yt'iii'ial fli'i'tion Iiflsj)ondent's friends, aiiiountini; to ahout ^^l-.'iO, foi- the purpose of defray inL; the exjienses of the election, to which the respondent contiilmtiMl in thi3 fii-st instance S')0(). It was thought that the contrilnitioii of >5.')(lO hy respondent, an,«» ■^:f|" ■.' -^'''S ^>i it. H'i' % t^ '!! .1 i' i: i 'M i HI.!, ''. t ! ; t 100 I'Kov NCIAL ELECTIONS. [a.d. ;i r 'k„ it ■' I r , m m ruTship. Mr. Cattanadi, though not at first appointi'd treasurer of tlio fund, eventually acted a« such, and was at lil)ertv to exeicise liis own discretion in payinj^ the h'gitiniate cl»ar<^es without applyinjj; to respondent as to each payment so to l>e niatle. A central conuiiittee was formed, and committees in each of the foin- wards com- posini^ tlie Westei'n Division. Ett'orts wei-e made to n^et vacant houses to use as conuiiittee r<»oms in all the wards, and when these could he olitained they were hired for that ])in'pose. When the vacant houses coidd not he oh- tain* d, I'ooms for the committees wfie eiii^aLjed at puhlie houses. The res[)ondent infoi'iued the central committee of the provisions of the new law : ma Th sail I I le W as eitnviiiced that hv a strict ol iservance of the law tliev coulil cari'V the election. Ih ilid not know of uny violation of the election law on I own part, or liy any one on his liehalf. lis The ehairinen of the war services must not vote Tl lose parti es WHO t h.l SlX'lHl the money for expenses said they did so in getting refreshments for themselves when canvassing, and it' anv friends w re ])re,st'nt they won Id ask them to pa take, hut that that was not done with the intt'iition of influencing their votes. Jn St. George's Ward the mone w as di.shursed hy Mr. Kingsmill, another parti ner of the respondent ; ahout i^-iO were paid for cab antl 1S71.] WEST T(1K(>NT<). 101 ('ai'ria<,'t' liiiv, of which 81 S (this is in addition to thost; siM>ken of by Mr. Cattanaeli, ami others, which liavc not Imm'u paid for) were for cai'i'iaL,^'s rcfci-rcd to lu'rcaftcr, iiirsst'n;^'('rs, use of connnittcc room, anom how they were to vote. Thei'c was no understanding how they were to vote. He had no inten- tion of intluencing any of those who were voters by any purchases made, or by the employment of those who were employed, or of any of them. He did not in any case pay what he considered an exorbitant price for anything done or furnished at his request during or just liefore the elec- tion, lie did not expend any part of the money received from Mr. C^attanach, or of his own money, directly or indirectly, in bribing or to influence electors. He was anxious to carry out the instructions to the connnittees in good faith. In suldition to the piunted instructions, he vei-ltally cautioned members auainst usinu' any means that might l>e construed int(» bribing electors or treating. With regard to refi-eshments furnished to connnittees, the respondent said himself that, when it was stated on the day of election that the connnittee in St. John's Ward were unwilling to get refreshments for those who v/ere em})loyed as committee-men and sci'utineers, he directed that it shouM V)e pi'ocured ; he seems to have ordered a carriage foi- liimself on the day of election, and two others for the use of the central connnittee. These caniages were ordered at Bond's. One of the Bonds, the father, was a voter. The respondent himself, when canvassing, stopped at some of the public houses and took some refreshments. 1871.] WFST TCtUONTO. lOS wliicli were i)ai(l for either by hiiuself or some other jierson who wus with liiin. Most it' not all of tlie parties tliat were ownei-s of cabs, who had volunteered the use of their cabs on the day of ihe election, after the elect i(jn was over sent in their bills to the central coiinnittee or to Mr. Cattanach, V)ut pay- ment for the cab hiri; was invariaVdy icfused. Mr. C'atta- nach, at the conclusion of his evidence, made a syno})sis of the wliole expenditure I'or the [)in"})oses of the election under diti'erent heale, and which had the efi'ect of coi'rupting the whole; constitui'iicy, ,so tliat the I'lection was not free. On this subject Baron Martin, in the Brad- ford nisc (11) 1.. T. N. S. 7*2:)), said : " If it had been proved that thei'c existiMl in this town genei'ally l>ribery to a large extent, and that it came from unknown (juaiters, that no one could tell where it had come from, but that people were bribed generally and indiscriminately ; oi- if it could be proved there was treating in all directions on pui'pose to influence voters, that houses were; thi'own o))en where people could get drink witliout paying for it ; by the coinmoTi law sucli election would be V(ny ptTsons for wlioiii it is alic houses refreshments weiv supplied. Counsel foi" respondent stated that these I'efi-eshnients Were supplied to people who hud done work, hut the evidence is directly to the contrary. The t-vidence is that jMTsons were admitted to these couunittee rooms ; that the farce was jfone thi'ough of puttinjf down tlieir names as conniiittee-men ; and that refreshments were su])plied to them wliether they wei'e votei's or non-voters, or messenst the fullest extent to which ajj^ency can Ih- given. A {M'rson proved to l)e an agent to this extent, is not oidy himself an agent of the candidate, hut also makes tliose agents whom he employs. . . .■ An agent employiMl so extensively as i.s shown here makes the candidate liahle not only for his own acts, l»ut also for the acts of those whom he, the agent, . ]S/ f., I '^•^ M i sti-ikc iiif that the fxiicndituic in this way was hiv^fc, or that tliere were the usual indications of cxet'ssive drinkins^ exhiliiti'd in the ranjft' of this canvass; wc hear of no ([uarrels oi- nnpK'asant disputes which, usually accompany excessive tlrinkinj;". In this i-cspect, thei'efore, [ do not see niv wav clear in inteiferiuir. Another o1»jection uri^'ed is the lai-ye amount paid for r'efi'cshnients to committee-mi'ii. Furnishin;;' lefreslunents to committee-men as such, whilst enuatretl in their work, will not /iir si: he considei'cfl as i^iyen for the coriupt purpose of iuHuencing tlieii- votes ; they ai'e employed as eon»mittee-men because they ai'e known to he favcjrahle to the candidate. Peoi)le must eatdui'in;;' election time, and if men are employed in this work ascojnmitteo-men, jj;ivinj^ them refreshments undei- these ciirumstances does n(jt im- ply thiit it is done in order to inHut'iice theii- votes. The lai'^'est amount for refreshments appears to have heeirdis- hursed l»v Dr. Howson, and that was for St. Auflrew'scom- nuttee and for the central committee; the whole amount was S4.S. Tim counnittees in or)('<'t to fupthtT oiiscivatioii) showed a jM'ofusi^ expenditure, and therefore evidence of l)ril)ery. There was nothiny; eanie out in the evidence to inthiee me to suppose that more than tlie usual and projier amounts were jiaid for the use of thi-se cai-ria^'es. There were, I undei'staud, '•]'! polling!; pliu-es in the eU^c- toral division. In ordei- to .secure the pi'ojK'r orL,^uii/cation of committees, seh-etion of .serutineiii's, the printing- and distrihutiijn of handltills, votiM-i list^ prei )arniir and ( lis- trihutiuif the l»ooks to he used hy scrutineers and can- vassers — all of whicli seem to he fair and lei,dtimate ohjects, and reasonalily necessary to he attended tt) hy a candilie(l of tlie meaning' of the third clause of the second section (the same as our own statute .'{2 Vic, c. 21, s. (i7, suits. (J), by r-eans of whicli we .see that it was not intended hy tliis .section to ' unlawful in itself, to say that it exposes members to veiy great liy the K'ained jU(l;.fe are tlie Tminntrth nisr (\ O'M. \r H., 7!»), and tlu' Lciccstn- msr ( I Power. Hodwell and Dew, 17.H), where it was hiid down that the aihrrahlr employi.ient of voteis iniiiei' the pretence of j^ivinj^' thei.i waLCcs for services wliich were not rendere<| is l>riliery, ann is tht^ O.ij'vril nisr (Wolferstan and Dew, 10!)), and the Jin// casr (Wolferstan and Bi'istowe, M7). On the other side there are various eases in whicli the conniiittees came to the conclusion tliat tlie employment of votei's was not eolnrahle ; in some, hecause the ser\ ices, tlioun'h not icn- dered, were ex[)ect<'d liy the candidate or Ids ai^ent to he reiidereil, and in others Itecause tlie intention to hrihe was negatived liy the circinnstance //m/ siiricr h-iik vdntcia- jj/nfo/ /itf till- ci(ii(/ida(c or his tiijcii/, "in/ /Im/ i/ iras to pay liim foi- aetin;;' as scruti- neer, it is .said these parties were not called to show liow they had expended tlie money. Pr'nnd fdcic it was paid for what, according' to tlie ahove decisions, if hoiiajidc, was a lei,dtimat(^ purpose, and if the j)etitioner wished to sliow it was corrupt, the onus of callin!^ the witnesses to show it seems to he on him. {Lirhjichf c<(. money they had heen working for Crooks, and doing all they could, and wanted a littlo money to pay their ex])en.ses. At the meeting at Mr. (Jossage's it was arranged tlu^y should bring uj) voter.s for Mr. Crooks — those that lived in that locality; they oiis to imhice them to lefrain from votinj,'. That seems fn me to i'ome within the very wonls of the statute. It was (Hiite (litfeicnt from (•anvassin<,^ from payiiiL,^ a pei'stm fof his hihor, ami for iisin;^' such peisuasions jis wrie lawful wln'ii iiiiluciii";' a voter to vote." It is con- tiinlrd here that these men were employed to use stich pirsuasions as were lawful to induce voters to vote, not [n lestrain them from N(ttin;.(. On this pouit 1 think tlie ulijcction nnist fail. Hut the (|Uestion still remains, was tlie moii'-y so jiaid to these parties really paid to them to c'lnvass and otherwise e.xi'rt themselves foi' the respond- ent lit" lookine- aftei' votes, or t<» pay their expenses while dniuii' so. If tlu' case dei)ended solelv on ( Irahams evi- deiicc, 1 iniyht have more ditliculty to decide ; looking iiulv at the evidence of (Jraham, Smith' and Walsh, it is very manifest that thev weic, hy their conduct and actions, i^ivini; (iraham to tniderstaiul that they were in favor of .Mr. ('rooks, and this before the money whs paid them ; mid the oliservation of one of them that a little money in election time was allowed for knockin 'r ! . <..j( ■ ■)'■ 'flf' .» ■(; U\ il. n 114 I'UOVINCIAL ELECTIONS. [A.I.. other parties to pay their expenses, and $7 to each of tliese two. He said Walsli stated tliat in conseijuence of livino- on Duniiiier Street he would want more ; he thoiiuht that would he necessary, hut could not explain why it should he more than the men who lived on Caei- Howel! Street received. I cannot tell whether the canvass of the porticjn of the division that these two persons were expected to overlook, would necessitate a larger or K'ss amount than was given; if these men vere laboring men and ccmldnot afford to lose anv money l)aid out hy them, and weit to be paid anything for their time ; if they were con- sidered to he active members of the committee, and were to look after and bring up votes on the day of election, I cannot say that the i?7 each appears to me to be so great that I will assume it was intended to bribe these men to vote for Mr. Crooks, when the man who gave it to-theia positively denie.^ any such intent, and \vhen he had every reason to believe that they intended tosujtport Mr. Crooks befoi-e he gave them the money. Th(mgh 1 am not satis- fied with Graham's account of how he disposed of the money, I cei'tainly W(juld be more inclined to believe his statements than I would theirs when they c(mfiict. It does not appear very cleai'ly how it was that the money was paid to their wives. If they were not at home at the time there would be nothing singular about that, and even if they were present, one can .scarcely see any particular reason why it should be so paid unless it might be thought that payment to the wife would enable them to deny it if they wis'icd to do so. This matter came out on tlie evidence of these two persons after Craham had been ex- anr'ned. He was not recalled to exi)lainit, and although it might have borne an unfavorable interpretation, it is not inconsistent with being done without any improper motive. The matter was not sufficiently inquired into to enable me to say, with any certainty, that there was any- thing wrong about it. When, however, the cross-examination of Walsh and Smith is referred to, and the evidence of Mr. Gossage and l«71.] WEST TORONTO. n.-) Mr. Fonl, the .statements of the t'onner are cei'tainly not to lie relied on, and they inipres.sed the two la.st named witnesse.s, a.s v ^A as Mr. Gi-aham, with the conviction that they were ardent snpportei's of Mr. Crooks. As to Walsh and Smith, on the pi'inciples on which I feel bound to act in these matters, I do not think the evidence will warrant iiu' in h old inii,' that Smith anV Jafirav because McDonald, the secretaiT of the com- inittee, had some difficulty in procuring the supplie.^- Jati'ray said he never gave Ryan any money t(j give to Landy, but after the election was over he believed McDonald did. Ryan was not on the committee for St. John's Ward. Ryan said that he got the i^-i to pay Landv out of Mr. Jaffray's till. He did not think Mr. JafiVay knew it. McDonald repaid the amount to Mr. JaftVay about a week after the election. He said he paid the iiKmey to Mr. L., and when the account for clieese, In.scuits and other articles supplied to tlie committee was made up, he included the !i?-S in it. He was doubtful if he toM Mr. McDonald of the entry of this payment, indejiendent of the entry in the account. He said he was not on Mr. Crooks' connnittee, and was not instructed to take any part in the election. What he did was of his own frei' will, except that Mr. Jati'ray asked him to drive thr carriage he was entitled to as chairnian (jf the connnittee that day. He thought Mr. Jatt'ray asked him to call on Ml'. Brown and solicit his vote for Mr. Crooks, and he was the only penson Mr. Jati'ray asked him to solicit to vote ; he did not mention Landy 's name to him at all ; he made 1.S71.] WEST T(1It(lNTO. 117 ;i note ofpayinont to J. Landy of S3, without nit'iitionin^' wliat it was for ; he had no authority from Mr. JaftVay to pay out money (m account of the eU'cticm. Mr. McDonald, oil licinj^' ]'ecalle1U)XT(). 11!) election, and tlie volunteei-in^' liy certain cabmen of their calis for the canying of voters to tlie polls on that day. Tin' 71st section of our statute H'l Vic, cap. 21, after recit- iuLf "thatdouhts may ai'ise as to wlietlier the hiiint the inference against the respondent would have been much sti'onger ; but acting on the principle before mentioned, I do not feel justihe;■ % ), ■ 1 Hi . iff ! H' ill ' , - [ m ' ' h.i :,. I ^1 H^ , H> 1 ' 1 1 ■iM *i ; : f. '' ■' w If !?- 1 w\ \ :^' 1 r ■ '" M w i 1 '1 "(' ■ flli-i, ii; 120 PROVINCIAL ELECTIONS. [A.I.. the election. The.se earria^jfes were not hired for the con- veyance of votei-s to the poll, anoen i'xchisivoly oiiiployod for soino (hiys canvassiiij^. Ho had met liiin l)otli in the (hiytiino and at niL,dit ; in tlio day- time canva,ssin;^^ and at ni<;ljt in tlio committee-room. H<' also said lie knew wluit Thompson had done in thr way of canvassing — how much lie had gone ahout — ami tlumgh he charged #10 lie only paid -So, which he con- sidered his legitimate expenses. As to Halligan's evidence, it is not at all satisfactory. Mr. Cattanach said he can- vassed for Mr. Crooks ; he applied f(jr a larger sum than SIO; said he had hoon working for Mr. Ci'ooks ; spent money necessarily in what he was doing; wanted Mr. Cattanach to pay him ; wanted more than SIO ; he said liis disbursements had been SlOfor necessary refroshmonts; Mr. C .ctanach in(juired immediately how he had spent the money ; was satisfied he had not .spent the money for illegal purposes ; hi' knew he had been very active ; thought the siim not unreasonable, and paid him $10. I believe I have gone over each ])articular point and case made, and referred to bv Mr. Harrison in the argu- mmt, and if I have not expres.sly decided each by name I think r have in effect dispo.sed of them all. I believe I have not expressly mentioned the amount paid for the repair of the mission house, which was injured whilst Mr. Crooks was holding a meeting there. I see no reason why in law or justice this should not be paid. In deciding under the statute, tl\e first ([uestion I had to consi(hM' was, . 12^ <|()in' (lurinj^f tlic canvass an' I (I ijjl r w 6 I 1( ' 1^ 124 I'UOVIXCIAL ELECTIONS. [a. I). It' from Hucli II cliai-^'c licinj.,' cstahlishod arc very serious. In the Hrst place it avoids the election, and in the W/irrinf/foii nisr (I O'M. iV H., 44), Baron Martin is re- ported to have said that he a<^frerd with what had been said l)y Mr. .Justice Wille.s at Lichtield, that before a Ju riiiployiiiciit ol'cal)S and teams on the nu.'rits, without deciding' whether, fur the mere e;npli.yinen(Ieil, ami what for. Hut hereafter it is most prohahle paities will lie helil to a more strict accountability in this respect. Inniy «»wn opinion, to make these exj)en' 1 tli. t'nr canvUHsi'rs to avoid taUiii;,' tli' m to l;(> nrtti' sotcis. aii'l still iiioic Witlicult to a\oielongeil to the \\ ifes ilan'_diters hy a former Imsliiind, his vote was held good. —TIkimiix W'liti/i ;/'■-• riiti . \\'liei'e the owner died intestate, ami the husband of one of iiis daughters leased the prui^erty and reeeived the rents, sueh husband was held not entitled to vote. —Eiliriml Lc.slii's ruti . Where it was proved that for some time p.ist the owner iiad given i\\) the wiiole management of the farm to liis son, -retaining liis i-iglit to lie suj)ported from the |)roduet of the nlaee, the son dealing witli the ero[is ;'.s his own, and disposing of them to his own use tiie son's vote w.as held good. — JdiiK-.s Cu/dicil/, .fo/iii A. .l/.o/v , ((//'/ ('Inirlis Siii''h's i-nfrs. W iiere it was proved that an agreement exists (verbal or otherwisei that the son should have a share in the I'rops as his ow n, and sui'h agiee- ineiit was Ixiiifi liilc leteil on. the son being duly assessed, his \ote was held good : the ordinary test being : had tlu' voter an aetiial existing interest in the erops growing and grown ': — lli'nl. i'lut where sueh crop'- eould not be seized for the son's debt, the son \\as not entitled to voLe.— /^o.s-.v Fraiicia' fn/i . Where the agreement did not show what share in tiie crops the son was to have with his father, and it apjieaied to be in the 'athei's diseretioa to determine the share, sueh son was not entitled to \ote. - .Julin Jn/m- . t It 'it 1 it ! U 1 i ii) M I St Ici f? ii, \'i :] f T"^ 130 I'HOVFXCTAL ELECTIONS. [A.D. A tiMiant troin year to year cannot create a sub-tenancy nor create a right to vote Ijy giving anotlier a share in the crops raised on the leased pro- perty.—^. D. iJiiidnnii'K roll-. Wiiere a man occnpied a liouse a.s toll collector, and not in any other right, ho was not <|ualilied to vote. — WiUhtm McAr/liiir'M rn/c. An alien who came to Canada in 1810, and had taken tiie oath of allegi- ance in ISIil, lint had taken no procee■ Wr'Kjht'x ruti-. The petition contaiueil tlie usual allegations of corrupt practices, and claimed the seat for the defeated candidate Jacob D. Buell. The votes were : For tlie respondent, <)2() ; foi- Jacob ]). Buell, (il-? ; majority for res))ondent, 7. Mr. Bdlnmc, Mr. J. K. Kerr, and Mr. C. F. Frascr, foi" petitioner. Mr. J. HiUijard Camrrun, Q.C., and Mr. J. Deacon, for respondent. The (ividence on the charge of ci^rrupt practices is set out in the special case, p. 1 'Vd, ^jo.s^. The following are some of the material points decided on the sci'utiny of votes. WILLIAM LITTLES VOTE. James Jcssup, Clerk of Peace : I produce Voters' List for fifth sU')division, Elizabeth town. The voters name is not on list five. There are six lists. I produce the Voters' List for polling subdivision four. The name William Little is on that list for pai't of lot thii'teen in the seventh concession. Stafford MeBratne// : I am Reeve of Elizabethtown. The road allowance between lots twelve and thirteen is the division line between polling subdivisions four and five. Little's land lies in ])olling subdivision number tivc. On examining the Poll Book, it appeared that the voter voted at polling .subdivision nundier tivc. Haoarty, C. J. — It is clear the man had a good vote, and voted in the proper division, but his name was on the I,s71,] BROCKVILLE. 1.31 list foi' tlie fvljoinini:^ division, and not on the list for his owii division. The vote wus not (jnestionccl at the poll. I would not willinu'ly disfranchise a man hecanse a mistake liad heen made, ^ly impression is strongly in favoi of tlio vote. Vote held good. JAMES HAKKK's vote. Pofitionei' pnt in the Assessment Roll and Voters' List on wliieh appeai'eelow his name. Will ill III SldJ/'onl : Am Deimty Reeve. 1 know the lot (.■{.") in l()C\)ir); the voter owns the lot. Ahout a year ;i^() L 'vistoii was his tenant, hut he left hefore the elec- tion, and IJaker has since lived on the lot. H.\(;ai{'1"Y, C. J. — It seems to lie all hrought down to the omission of a bracket in the Asse.ssment Roll and Voters" List. J think 1 cannot sti'ike nW the vote. Vote lield good. .lEHEMIAII eeeiiibei-, without a will. He lid't sevi/n in family. Thi-ee lived at home last year ; foui' pai't of the time. M v sister iiiui'ried, August, bsTO. In sj)ring four lixcd there. Last August got a deed of release from two of my sisters whom \v<' pai'■ ! » H ,0 ? |V } i ' » ill V I r 1 t- I )i' I w 182 PROVINCIAL ELECTIONS. [a.d. 0^'- HAriARTY, C. J. — Tlie point in this caso is tliut tlu; pro- perty is assessed at S900, and tliat four cliildien and tlieir mother are actually in possession. Their mother is entitled to dower, but her dower has iK^t been assigned to her. I hold therefore that the mother .should not be rated jointly with the children, who are the joint tenants ; ani><-('.r(n/ii/tc(f : 1 lease the place to the tenant. My brother-in-law at Owen Sound never has interfered. I married two sisters, and had issue by my first wife. I then married my second wife. Father i ( . .hirUv-n. 1 own twenty-tive acres. Voter lives with n\^. He has taken charge of all the business. Xo agreement between \is. Cross-eni milted : He has all the crops. I told him he could take all; all I wante(l was my li\'ing out of it. This was eight years ago. He owns all the stock ; 1 own nothing but the land. He can ilo as he likes. He is thirty; unmari'ieil. He has to keep me and my mother. I look to him foi-sup])ort whether crops or not. I let him do as he likes. He has raised all himself. I bother no more than a sti'anger. I have nothing to do with it. Hagauty, C. J. — I hold the vote good. HOSS FHAXCIS' VOTE. Boss Francis: I live with mv father on fifty acres. He owns it. My sister lives there, and a brother boards there. About four years ago I agreed to work place. I was to have all raised above what would support family. Father works when he likes. I am to have it at his death. I have had my clothes. Oro-is-ecuniiird : I pay taxes. [ manage all. If no crop or pi'oduce, T do not understand I am bound to support them. m 1S71.] nROCKVILI.K. l.T) Jiilni Frmiri-s : Tlu' arrfini^'cincnt was tliat lie was to snp- iioi't lilt' and luy wife and a daughter; to liavc all that i'('iiiainc'(l after supportino- u.s to ilo as lie pleased with, and liase the place at my death. Crop or no crop, he was liDUiid to snp[)ort me. Crn.)ix-e.mmi)ir(l : He was to support us oti' the place hct'oiv he would n'et any of the surplus. The |)lace has supported us. All 1 wanted was that we should lie sup- ported. It could not he seized I'or his deht, I think, until we were sU])porte(l. H.VO.VRTY, C. J. — I hold the vote liaar,ii;ain was made in fall of INO!). Last fall we had a jjfood crop of ifrain : hay [)oor, live or six tons. My team and his ato the hay U[). We l»ou^•ht hay this s[)rin^' ; I was to pay half of [irice. We raiseil wheat, oats, peas, etc, ; wheat was H-round. I jj.'ot what Hour was wanted, and what I want this year. I feil my team on my share of oats, I t peas to .sow this spring' in my [»resent place — four iio hu.shels ; covild get more if I wanted them. H.VOAHTV, C. J. — I hold the Vote had. SAMUEL WII.TSKS VoTK. Srnmirl Wiltm' : I voted on part of twenty-one and twenty-two; I voted as occupant ; my son owns it. I. said if he went on, and paid for tlu' jilace, all I wanted was a fif r vm IKoVINCIAL EI-ECTIONS. [a.d. Vt\ i' !. lioiisc I'oi- iiiysi'li" find wife. W'v nil live together. My son works it ; I do wluit little I eaii. He is ))ayin<:,f t'oi- it. (Jrn-tH-c.iiiiiii/iii/ : I lirst IxMitflit it in my own name from one Boyd, I e.\[)ect lie lias L;'ot the deed, hut don't know. I paid a little when I first l)oujj,'lit it, niiu; years a<;'o. I told Boyd to give him a deed, and he did so. I control it as much as he docs. - Sfcphr.ii in/fsf, his son: 1 got a deed (jf this fi'om Boyd. The understanding was that fathei- was to i£et his liviuir otf the place, also mothei-. He; has occupied evei- since. I am not always tliore. Father minds the place when I am away. I would have no right to turn him out. Cross-ceamiiieil : I bought it subject to a mortgage of i?HOO ; SoOO has been paid on it. Father was to have his li\ing oft' the place and I was to takt^ the place. No agi-ee- ment as to fai-ming on shares. 'I do not think I could turn him out. Hagahty, C. J. — The son owns the fee, and is also occu- pier. I can see no interest in the father to support a vote. The verbal pi'omise, even if there was a good consideration foi- the bargain, cannot I thiidv avail ; I hold the vote bad. A. D. Dunham's vote. MaHln Hai/.^i ; I own lot twenty-three, first conces.sion. No writing made. I made verbal arrangement with William Dunham, eleven or twelve yeais ago. He pays $.'i() per anrmm; he pays every two months. Gross-c.iximiiu'd : Three or four yeai's ago he asked me to give the receipts in his wife's name, Jane Dunham ; I did nothing more than hand receipts in wife's name. The votei' is hei- son, and lately has paid me rent, and I still give receipt in wife's name. 1 never agreed to alter tenancy. Tliey all live togethei-. One |)ayment was made by the son, at all events, this Api'il or May. Counsel foi' the petiti(mer })i'()posed to give evidence that the father had agreed to the son working the place on shares. Hacjartv, C. J.— Even if that were proved the vote would not be good. The son has no definite interest in 1S71.] 15R<)('KV1M,E. 137 till' laml. At i»i'e.seiit I must hold that a tenant from year to vear, whose tenancy was liahh' to he put an end to hy ji six months' notice, could not carve out a h'sser interest in favor of a siih-tenant. He cannot create a vote hy tfivini;' a sliare of tlie crop to liis son. Vote liehl l>ad. WILLIAM MCA HT urn's VoTK. Peter McLaren : Voter lives at the toll-Ljate numhei- ont?. He is paid monthly for keeping it. I think he had souio land I'ented for pastui'e. He gets six dollars per month and use of tlie house. The toll-house is on the road. The 7'()ad l)elongs to the Lowell Road Company. WiUitim Me Arthur, the voter: I was engaged at six dollars a month and the house. I ket'p the gate and collect tolls. I don't think tliey could turn me I (I'll u4i.. S^iiii I'M! i. , fit •f 1 '.• *i T 1 :{s PUOVINCIAI. E1,ECTI()\S. [A.l. i •: Ui' P% Hi i ('ritM-ciutninnl : My f'jitlicr took tlic oath oF Hll('!i;'ianc(> ; lie liatl to < IVrif/h/ : \ understood from ui\^ parents! was horn in NFoiristown, New York. 1 understood my father was hoi'u in Canaila. I ha\'e li\'e(l here from infancy. 1 am -V'i now. HA(!AKTV, C. .J., held the vote ,L;'ood. At the elo.se of the scrutiny, and at the re(|uest (jf the parties, a special case, setting' foi'th the t'vidi'nce on the cluirne of corrupt practices, was reserved for the o[)inion of tlu> Court of (^)ueen"s Bench, counsel foi" the petitionei' statini;' that e.\ce[)t as to the selling' and n'iving' li([Uor on the polling' day, as st'tout in the s])ecial case, they haiit ipstiiir.s, in liis private rcsidoncc, iiu gavt- liccr iind wliiskcy without cliai'''!' to suvt'iai of liis t'lii'nd.s, am onj.' whom wi; fi'icnds of liotli candiilatcs. I!., who iiad no liuonsi' to sell liipior, sold it at a |)lare near oni; of the polls to all pcisons indillcrcntly. This was Mot dono 1)V II. or 15. in tlii! interest of eiti audidate, ))• to Mitlnenee th eieetion, l>. aetin^; simply for the purpose of i,'ain : an. had committed any corrupt practii'c within sec. 47 of m ^ thcrcfoi-c had not forfeited their votes ; for they had not iiecn ip. .S. am guilty of lirihery or undue inlhienec, ;ind their acts, if illegal and proliihitccl. wi're not done " in referoncc to " the elect ion, w liieli. unilcr sec 47 of :u \ ic., cap. .i, IS reipiisite in onler to avonl a vote. Tlic words •• illegal and prohihited acts in referenci! to elections," used in sec. 3, mean such acts iione in comiection uith. or to allcct, or in referencu to elections; not all acts uhicii are illegal and ])rohiliited under the election law. Tile right to vote is not to Ix' taken away oi' the vote forfeited liy the ait of the voter nnless under a jilain ami express enactnuMit, for it is a matter in w liich others hesides the \oter arc intcre.sted. One M., a carter, who voted for respondent, at tlu; re(piest of I'., tho respondent's agent, carried a voter live or si.\ miles to tlii^ ])olling place, saying that he wouhl do so w ithont charge. Some days aftir tile election, I'. , the agent, gave M. .sl'. intending it as compensation for the conveyanci^ of sm.h voter to tlie |)oll, luit .\1. thought it was in ])ayment for work which Ik; had done foi' I', as a carter. The canilidate knew nothing of the matter. //'/'/, that there was properly no payment hy 1'. to M. for any purpose, tile money heing given for one jjiirpose and receii ed for another ; Imt that if there had lieeii, it was maile after I'.'s there was no pi'evious liirin relate back. •ncy had ir promise to pi'y, to wliicii it cou d Id If such payment had lieen estahlished as a corru])t practice, it would have avoided P '.s vote, Imt not M.'s ; and it would not have defeated the election, f(jr it was not found to have been committed with the knowledge or consent of the candidate, bnt the eonti'ary. {hiari; whether, under 'M Vic, caj). 'i, sec. "20, the llota Judge has power, before the close of the case, to reserve (juestious foi- the Court. ' i 4 ,;|i :j i\ ii ^■: ■ ■ nil ■ ii •11 I ;: I ill K) I'KOVINCIAL lll.KCTKiNS. [a. I). lit! |*k> i: « :ii This was a t-ase stati'd luidiT the Controvi'i'tod Kloc- tions Act of 1S71, and rcMcrvod hy tlic .liidtff tiyiu;,' the Election Petition {'ni(r\). 120) as follows; At the ahosc Court, lioldcn on the 2(ith, "JTth, 2.Sth, 2!)th, and ."{Otli days of June, ami on the 5th and (Ith tlays of .luly, A.I)., I.S71, iH'fort! nie, tlu^ Hoiioralile .lohn Hawkins Flagaity, Chief Justice of the Court of Conniion Pleas, ami one of the Judi^es on the rota for the trial of election petitions, the ahove named petitioner chai'med l>y liis ))etition that the. said respondent was not duly elected or returned, and that the said election was void, l»y I'eason that the .s^id respondent an (he ninnlier nf twenty tn thirty, weio that ilav, at (litli'iciit times, nji in tliis room, anil had 'iiHior ; that no pay was taken oi- expecteih nor any dini'Lfe iiiaih' for this; he tohl anv of his friends who Were in the hahit of eoniinj;' to his sahxm that they coiihl ha\e a ih'ink upstairs; that friends of hoth camliihites weic there on his invitation, and some not sotei's ; that he was undei the impression that so Lfisin^' (his li;iid for it oil tlie |)oUini;' day at a place near one of the polls in ^* the t(i\vnshi|) ; that he sold to jiersons, \dters and others, wiilioul reference to their side or politii-s ; thai this was iKil done in tlu" inteivst of citlier candidate, or to alfect tlio election or its result, but sinij^lyfor tlie sake of ^'ain ; and that the respondent did not know of oi' sanction these pro- ceed! ii!j,'s. -■). As to the charge of conveying- voters to tlie poll. I tind that William McKay, a carter in Brockville, and a vot<'r fur res[)ondent, did, at the leipiest of 'riionias Price, an a^■ent of resjiondcnt, cany an ohl man named I'aul. a voter for rcs[ionilent, a distance of five or six miles to the poUiiiM' place ; that iMclvay was aware on the pollini;' '.:.& f m m^ n ;l X ( ■ ; ^ 1 • ■ 1? ■'V 142 PROVIN'CIAL ELECTIONS. [a.d. tlu'ii contt'inplated between them ; that some days after tlic election Price gave McKay 82, considering tliat McKay was a poor man, and tliat he on^lit to . sec. 47, ;i\"i»i(ls Ins vote. His act was one of agency on behalf of the respondent. The intent of the ai^vnt is of no conse- (jUeiice; and tlie pi'incipal is att'ected by his act. although the ai;'ent was nf)t employed for the j)urpose in whieh he violated tlie Act: (Jorcntrii msr (I C)Ai. cV H., 107;: 'iannlon cam (Ibid. 1S4); Hhid-hiini luue {Ibid. 201). His act was an offence against sec. 71. The [»ayment lie made after the election was intendeil as com[iensation for carrying the votei', and althougli the agency hail termii)ate(l, vet such payment, being connected with the precedent act of the agent, relateil back to the time when the sei-vice was performed, b}' analogy to tlie , shnuh! be libui'ally construed, so as best to ensure the attainment of its object. Votes are giNcn on ceitain con- ditions, wliich must lie observed. [Wll^soX, .1. — Is that .so ;' Is it not rather a right, of which thest- [irovisioiis are merely .safeguards '.'] If a piohiltited act be done l)y a candidate, it avoids tlie election; if it be done by a \'oter, it avoids his vote ; if done by another, it sul>jects the pei'son to a penalty. Mr. .J. II. Cameron, Q.C, ccjnti'a. It is not pivtended the ' election can be avoided excepting ]>y reas(Ui of the pay- I KM 4 t > u ^■V 1 : i 'Mill'' ' \ I '4 Ml 'I'il^' III. I J ; 1 ' 11 i! ill! il m w ■ , m. 144 PROVINCIAL ELECTIONS. m uumt by Price. As to the matters relating- to Houston and Burns ; the acts prohibited by sec. ()(>, before referred to, are not necessarily connected with tdections at all. Hotels, &c., are re(juired to be closed during the polling day, and no li(|Uor is to be sold or given that day undei' a penalty. The election may be over early in the day ; l»ut at whatever liour the poll is closed, the hotels, etc., must be kept closed the whole of that day, fr(jui the eai'liest hour in the morning till midnight. The illegal or pro- hil)ited act, to l)e a "corrupt practice," and to avoi' M. ' 1., 1 ii: ■ i r- ■ I f '■] J ■it 1' ^ \ ■ !'it,i "4.1, \ 1 1 f • 146 PROVINCIAL ELECTIONS. [a.d. nor to influence any vote oi- voter, noi- to pi'oduce any t'rt'ecl on tlie election ; noi' (litl the respondtmt l\no\v of oi' sanction it. 2n(lly. That of Samuel Burns. He had no license to sell li(|uors. He voted foi' i-espondent. He sold liquor on the polling day, near a poll in one of the townships, and charged for it. He .sold it to i)ersons without reference to their side or politics. In other res})ects, his case is siniilai'to that (>l Houston. These two cases niav theietoiT' hf considered to .spirituous or fermented liquors or diinks shall Im- sold or given to any person within tlic limits of such municipality during tln' .said period " (/''.^'.during the V svJlinij li(|Uor, they had not only incui-reil a penalty, hut had foi'feited their votes; that such giving anadge but ir 4 1N71.] BROCK VI LLE. 149 t'i)i' five iiiiiiutt's anywhrre in the electoral division, miles HUiiv from the polling place, within eight days het'ore the <]rc'ti(>n, is a criminal hy the election law, and an illegal Vdtei', althougli in fact a very honest res])ectalile man. Tl.e vote of the one, tliough not his person, will stand the strictest scrutiny. The vote of the other must fail. The thief has Itcen guilty of no cori-upt practice, hut. the wearer of the badge has. This cannot then he a law to he cn/nrccd, viilrsHthr cmictmcnt he a plain and positive one- I do not think we should call every illegal and ))i-o- hihitt'd act hy this special statute, which is intc^nded to operate for a limited time, on a peculiar occasion, and for a particular pur[)ose, a corrupt practice, against the pro- visions of that law, unless the act ])e shown to have l)een done in some way or other with a view to the election, or to hear upon it, or as connected with it. or in relation to it, or as calculated or intended so to operate. If any other construction he given to the statute, it will he attended with very oppressive and needless conserjuences of punisli- iiient ane election was over '. It apj)ears to me these cases plainly answer them.selves. anli,i,a'«l Ity tlic most explicit eiiactiiient of tlie law to do so. Ill mv opinion, on the ease stated witli respect to tliese persons, we aie not i'e(|uired, and would not lie justified, in avoiding their votes. The facts sliow that the giving- and selling of tlie li(|U(>i' were not acts done in reference to the election. On this point, I may however .say that I am moii' satis- tieil with my conclusion as to tlie act of Houston, as to tlie giving of the liipioi', than 1 am with respect to Burns, who sold the li([Uor in a place and under circumstances 'dving rise to some degree of suspicion. The other part of the case i-elates to the act of Price. His conduct is com{)lained of on the gi-oinid of its having been an illegal and prohibited act in reference to the election, contrary to the •S2 Vic, cap. 21, sec. 71. That section declai'es, so far as is api)licahle here' " that the luring oi- pi'omising to pay, oi' paying f(*r, any horse," etc., " 1)V any candidate, or by any person on liis behalf,'" to convey voters at any election, shall be an illegal act, an«- 1M71.] lU{(t<"KVIM,E. 1 y.] Ill 11(1 view of the (')i.si', us the It'tinictl (-liict' .luslict' has i'dUiid that the rcspdnWeiit kiit'W iiiithiii};' nf the niiittcr lictwi't'ii Piicf Hinl McKay, and iifvci' authdii/t'il oi- sane- timifd it, could it lie possilile to avoid the election, evt-ii if Frieo's act had heen dotei-niiiied to lie a eonuiit inaetiee. For under the 4(ith section of the .S4 \'ic., caji. '\, the learned Chief Justice, to atiect tlie return, would hav(> to tind that " the corrujit [iractice had lieeu conniiittecl l»y o)' with the knowledy the case, l»y Houston, does not avoid his vote. 1 have more; doubt as to the seUinj,' of Hipior hy Hur".:., hui- 1 am not so free from doubt as to find a«,'ainst him, on the case submitted. I am of opinion, thei-iifoi-e, that neither of their votes has been H\(iided. Morrison, J., concurred. (:}2Q.B„ i:}2). '% ml ii M()N('K. Before Mr. .Jisthk (i.m.t. DiTNNVtLLK, .'.inl itiiil .'.'/Hi Aii;/i(if, /.s','/, (iikI sill Jaiiunrij, 1872, John W. Coljjar rt nl, Pi'fifuiiirrs,\\ Lachlin McCai.li'm, Bixjumdoit, Brihirii S/irriiil. C(i.« — /rrii/iiliir Vahrs" l/ixt -Election not Aficti'd— Alll' llillllr/lt ()/■ /'rtifinil — CoHtH. An elector wlieu iuskeil to vote for reapondeut said that it would be a day lost if he went to vote, wiiioli would eost liiin 81. To wliieli tlie can- vasser replied, "Come out, and y(jur J^l will be all I'igiit." Hi'lil, not sutttcient to establish a charge of bribery. 'I'he Court of (j)neen's Bench on a sjjccial case (W'l Q. B, , 147), /frill, 1, That the proper list of \otcr.s to lie used at an election is " the last list of voters made, certified, and delivereil to the Clerk of the Peace at least one montli before the date of the writ to ln)ld such election." 2. That an iri'cgular voter.s' li,st liad been used in out; of the townships in the Hlectoral Division ; but tliat the result of tlie election had not been atfected thereliy, and that tlie election was not avoided. S. That the .hnlge trying an election petition has power to amend the petition by allowing the insertion of any objection to the voters' list used at the election. 'i'lie petitioners were ordered to pay tlie costs of the respcmdent up to tli' meeting of the i'llection Court, and the costs of the spe(;ial case ; but as to the costs of the trial, each party vas ordered to pay hi.s own costs. The petition contained the usual cliarges as to corrupt practices, and claimed the seat on a scrutiny of votes for the defeated candidate, James I). Kduar. The vote was : For respondent, [)'-M ; for James D. Edgar, 926 ; majority for the respondent, '). 'J ■ IH71. MONCK. 155 Mr. /uf/iinir, for petitioners. Jh: Mr}fieen rejected, nor tliat the itse of tlie Voters' List for 1870, instead of that for 1(S()9, had in .^ny way affected tlie result of the election, the election was not avoided. The Court also held that t\vi Judge trying the election petition had power to amend the petition by allowing the insertion of an objection to the voters' list used at the election. On the I'eassenibling of the Election Coni-t (January 8, 1872), counsel for the petitioners stated that in conse- quence of the decision of the Court of Queen's Bench, it was their intention to abandon the scrutiny. Mr. Justice Galt tliereupijn declared the respondent duly elected, and made the following order as to costs : The petitioners to pay the costs of the petition up to the meeting of the Election Court at Dunnville. Each l)arty to pay their own costs of the trial before the Election Court. Petitionei's to pay any witness fees actually paid to witnesses before the 5th January, 1872, except the witness fees of witnesses examined at the hearing at Dunnville. Costs of the special case to be paid by peti- tioners. (5 Journal Leg is. Asscm., 1871-2, p. 49). WEST YORK. Before Chief Justice Hagauty. Toronto, ofh and ijth Sciifcmhcr, 1S71, and 8th March, 1H7 L Thom.vs Guahame, PHitiomr, v. Peter Patterson, Respondent. Noticf of Disf/iialijica/ion of CanilJdatc — Postmnitcr — Offid' or Emploji- nii-nf ill thi' Si'rvin' of I hi' Domimon of Uaiindn — ■11 Vic, c. 10, and ■iJ Vic, c .'f, !<. 1 — Spirial Cast — -ConM'iit to Di/oniKml of Petit ion. Tlu' respondent, a postmaster in tlie service of the Dominion of Canada, hecame a candidate at an eleotion iield on the I4th and 2l8t Marcii, 1H71, and was elected. On the lltli March he resigned his office of postmaster, which was accepted by the Postmaster General on the ISth ;4 1S71.] WEST YORK. 157 Mai'cli. His .-vocounts with the Post Office Department were closed iinil his successor appointed after the election. Evidence of tlie notoriety of the alleged disiiualitication of the respondent was given, whicli was that such alleged disciualitication was a matter of talk, and that all the people at the meeting for the nomination of candidates were supposed to lie aware of tiie supposed dilficnlty as to such disijualitication. Ildil, tluvt even if the respondent was disijualitied for election, tiie Judge could not :m such evidence declare that the electors voting for the respondent had voted perversely, and liad therefore thrown away their vottNs, so as to entitle the petitioner to claim the seat. W'i'.rc a class of persons afTeeted hy the decision of a ease is numerous, and tin; (luestion involved is one of general importance, the .ludgemay re.ier\c a special case for the opinion of the Court of (Queen's Bench ; and ti' ■ .Judge iiere decided to take that course. Tlie petitioner, after such special case had been reserved, appeared before tlie .hulge trying the election petition, and consented to the abandon- ment of the special case and the ilismissal of the petition witli csts, and it was so ordered. Tilt' petition a)legL' ; for Mr. Striker, 1644; majority for respondent, 16. The writ of election was dated the 9th Deceml>er, 1.S71, and the election was held on the 22nd and 29th December, 1871. Evidence was then given that the votei's' list used at the election in the Township of Hillier had not l)een sworn to by the cleik until the 2Htli November, 1871, ami had not been "made, certified and delivered to the Clerk \h ks72.J PRINCE hDWAKI) (2). I«)l of tlio iVact' at least one uioiitli hct'oiv the tlate of the writ to liold such eh'Ction," as re([uiix'• Linii/i/'s roh . Wliijrc a father had made a will of a lot to his sou who was assessed for it. anil tile son took the crops except what was used by the father, who resided on the lot with his wife, tlie son residing and working on auiither farm, //' ''/. tliat the son hail not such a beneficial interest in the lot as would untitle iiim to vote. — WiUhim Miil/in's rot(. Where A., wiio resided out of the riding, had nunle a contract in writing to sell to jj. the ])roperty assessed to hiin as owiuir, but had not at the time of the election executed the deed, 15. h;iving l)een in possession of tlie property for several years under agreements with A., //■/'/, that A. was a mere trustee for the purchaser, and had therefore no right to vote. — ./r(//(»x I{oI(Ii/i'm rofi . Wliere a veiulor before the revision of the Assessment Roll had conveyed and given possession of the property to a purchasei', and such piir- cliascr had afterwaivls given him a license to occupy a small portion of the prijperty, such vendor was held not entitled to vote. — Diinhl Xohlln '-t vol I'. Where the owner of mortgaged property died intestate, leaving a widow ami sons and daughters, an, exchuleil iiii objection as to tiic value of tlii' assesHCMl property. IhhI. A trustee under a will, Jiaviiig no present beneHeial interest in tlie rial property asses.sed to liiin, was iield not entitled to vote.-- William II. Joiii's' voir. Where a voter was asses.sed for property which lie sold on the '2~t\\ Febiuary, LS71, before tlu- revision of the Assessment Roll, and was not assessed for other property of which lie was in posisession as owner or tenant, he was held not entitled to vote. — Thomii" I'hicc'x roll-. The mistake of the number of the lot does not come under the same rule as the mistake of a name, as tlie latter is piovided for in the statute and the voter's oath. —Ihiil. Where one of two joint owners was assessed for projierty at !?'200, neitiiei of such joint owners was entitled to vote. —Holnrf S/< inirf'.i roh-. I'arol evidence is inadmissible (jn a scrutiny to alter the value assessed aj^ainst property in the Assessment Roll. — Ihid. A vacancy linviiio- occui'I'imI in this constituency l>y the death of tlie nieiiilier elected at the ovin'i'ul election lu'M in March, 1871 (seo JournHl Lcfjla.Axsernhhi, I.S71-2, p. 247), f new election was held in March, 1N72, when the re- spondent was declared duly elected. A petition was presented on the 2.')th April, 1872, hy the al)ove named petitiont'r, who was a candidate at the election, alleoing corrupt practices against the respondent and his agents, and claiming the st/at on a scrutiny. Mr. R. A. Htn'rison, Q.C for the petitioner. Mr. A. N. RirJmnlx, Q. C, -I//'. Jrur/cnnon, iind tJn EcHjwndoit in person, for the respondent. The Respondent tiled recriminatory charges of corru}it practices against the petitionei- and his agents. After evidence on the charges against each of tlie parties hinl been given. The Vice-ChaNCELLOR held the evidence not sufficient. The scrutiny of votes was then proceeded with, ami the following cases were decided. HALLER SM ales' VOTE. El ijah Sriiali's : I oAvn KJ in 1st concession. My sou voted on the east half of the lot, and I on the other half. My son and I live on the place together. We are in partnership. I have also a minor son living with me. \s7'2.] soiTM (;hp:nville. 1({5 1 have also two iIjuilcI iters liviiii;' at lioiiic. Haller is not iiiiinie"! ; lie is aViout ■"JO. I never iiuule to him a deed of lialt'. My son has heen a jiaitnt'r with me in all my Imsinoss ever since hi' camo of a,i,'e. VV^e have made some- times S.')(iO or SiJOO a year, and sometimes nnich more. He ""ets one-fourth of the profits and I ^'et tliree-fourths. He woi'ks on the farm; he does farm work. I woi'k too; both of us manae'e. I own other lands. Oni- partnei-ship is not in writing'; we don't need a writing. We keep l)Ooks. We Ituy and sell land; we have hetween two and three hundreil acres now, and have had nnich moiv. When my miuoi' son comes of a^e I will pi'ohahly ;^'ive liiiii oHc-foui'th if h" chooses to he a ])artner. Ci'd-ss-r.'-amuii'if : Thei'e was a hai't^ain when he came of an'e to the effect iiUMitioned. We di\ide the pi'oceeds of sales freijuently. This has been so from the Hi'st. The Assessment Roll was put in, which showt'd that the voter was as.sessed for the E. h, S70(), and the father foi' the W. i, 81,200. Mr. H((rri>iOH contendeil that the evidence siiowed that tlie son was only interested to the extent of one-fourth in the S70() lot, not sutheient to give him a vote. Mr. Fr (I >^(r c\ixn\ Owen Bakei-'s cii>^e, Sfnnno^if ctisr {aafr, p. 'M ), to show that the ohjection couM not he taken for di'Hcient assessment where the ohjection of which notice was given was non-ownership, etc. The Vice-ChaxcelloR held the vote good. The evi- dence of the fathei-, whicli was not impeached, showed that tlie father and son wei'e ])artners in idl the j)roperty, and tlie son undoulitedlv ought to have the riuht to vote. I'nder these cii'cumstances, and in view of the oV)jection taken in Owen Baker's case, he allowe" one-third for myself, ^[y otlier boys have all left me, and 1 couhl not get on without him. Both he and I work. We arrange the profits. f 1N72.] SiHTII lt sai mine, and that I might have it: have a 0 last summer. I did not pay these sums in pursuance of any har^ain ; I considered that I ought to ]iay tlie.se sums. These payments were made after he .saiil I sliouM have the place. I understood that I M^a.s to work for him or a'ive him mv earnings if I woiked elsewliere. He saiil if \ did tliis lie would give nie the place. 1 have done what I promised. He has given me the place in no other way tlian I liave mentioned. I got no receipts for the money. My brothers have worked for him. I worked one year and six months out, JH72.1 StMTII (iltKNVn.I.K. !(;!» ami ;;!i\"' liim my waycs. I n(i\f all f\('i'|tt wliut I sj»fnt for iiiv clotlit's. I lia\f lift'ii of ayr for five oi' six years. Mv lirotlifi's \vorl< out once in a wliilc TlifV ni\i' liini tlirir wiiycs ; I cannot say wliat foi'. Tlit-y lia\f tln-iiown iilras as to that. Mr. Muili iniiin suliuiittcd tlmt an aunvciufiit was sliown liV tlir r\ iilclici' of tilt' son tluit 111' sllouM have tilt' lu'opcrty. H'' contt-ndi'd that thi- fatluT coulil not have voted U|)on the evidence. The son \V(»ul(lha\e a riyht to tile a hill foi' specific ]ierfoi'niance. The \'i('i;-Cii.\N('Ki.i,(>i{ : At the time of the assessment tin re was nothin^' hut a vohnitary j^ift without possession. Vote lieid havvn si'ttlfd. [ liavc a transici- from the assij;noc' ; 1 <,^)t it two UKjntlis ago. I needed this transfei- to get the legal tianst'er. I was owner at tlie time of the revision. Et -i.iicmiiicd : Yov a ninnher of yeais I liad sold the ]>niehaser timher ott" the lot liefoic the contract I have mentioned Walkei' is the puix-haser ; lie has the right to tlie jiossession. Walker crojiped the land last yeai'. He had a right to crop and take the standi?ig timher, or in certain porti the .let'd [22n(l April, 1S71]. I liavc oc('U])ie acres and harn. I can't sav as to its value. When I boui>'ht the land there was lying ahout loose some wood he had cut. He had got this ort'liefoie last May. I connnenced liurning 27tli Mav. I„ '■% The Vice-Ch.\ncell()U held that the voter had only a license to occupy a portion of the lot which lu; had sold to Cosgrave. Actual po.ssession was given to, and taken by, the purchaser he'fore the revision of the A.ssessment Roll, and after the voter had given Cosgi'ave his deed and it was aftei- that and about tlu^ l.')th June that thi' voter went in under the licen.se to occupy the piart in which he had planted p(jtatoes. Vote held had. JOHN MORROWS VOTE. John MD/'r'nr,- I voted in the west ward. The pi'operty 1 voted on is owned by my mother. She had a deiMJ in bsjl . at the time of assessment. I was assesse(l as occupant. I was living at home with my motheiat the time. TIkmv are seven of us. We were all liviiig at home with her at the time of as.sessment and do still, and have don<' .so since IS72.] SOI'TII (ilUWII.I.E. 17:? inv t'athi'i's dciitli. I liad no lease (ji- coiivcyancc from iiiv iiiother, or any other \vritin<:f up to tlie time of my votiiij^. 1 am eldest of tlie lioys. Gross-cmmi/icd : My fatlier (lied in spi'iiiL;', ISTO. There was then a, moi'tn'ag'e (j)i tlie place. My mother houg'ht it under the morti^fa^'e. I \niu\ foi' it out of my own earn- in(j;s. 1 am the head of the house. I support the family, inv mother and sisters ; a youns^ei' hrothei' and I support 111. He lives with us, he does not make as much as I do. He is not (juite twenty-one; I will he twenty-three in Octoher. I [lay the taxes: 1 keep the jireiiiises in repair 1 have made no improvements sinei- my father died. There was no undei'stanilini;' whi-n the deed was iiiaile to my mother that I was to live there, and it was to lie my home. It was to he a home for my hrothers a';'i Msi.-rs too ; that \\ as the a^'reement. Mr. Patrick held tile Jii'-rtn'aije ; 8()(I0 was the purchase money. I did not .see Mr. Patrick ahout it. Jt is not all paid yet. I pive SI 00 at the start, and have yiven S'^n since. 1 agreed to [lay of}' the amount ix liunilre(l (lollars at least. Ri-r.iroiiiiwl : Tliere are papers in thf hou.se. 1 don t know hut it is a deed that was made to her. I think it was in the .spring of I nJO or I'all of 1 Stilt that I had the conver.sation with my mother. .My mothi'i' asked me what T thought aliout Iniving tin' place, and I said, "jected to were not owners, tenants and occupants within section '),"" which reijuired, among other things, a sufficient rating-. 1.S72.] SOl'TIl (iUKNNll.I.L. 175 The Vice-ChaN'CELLOR held tlic licadiiiu' '>t' tlif icspoiMl- (.'iit'slist I'xchidt'd tlic (iiiestioii of tlif vahu- )' tlir assessed property. After fuitlifl- ai'i^Uliiellt, The ViCE-CllANCELLOR said tluit lie did not tliink in ciHiity that the motliei- wouM he a ti'ustee for the voter. Til" witness or SIO T give it to them. Uc-e.i:miiiiwl : 1 am one of the parties heneHc>ally entitled under the will. I have not heen .suppoiting the cliihh-en : ri I ' 3 i '^^ \:'^M k« sr!\ '■ ■11 17(i I'ltoVINCIAl, ELECTIONS. [A.n. they \iiivv Im-cii .supj)orU'(l by our futhcr. He is lii-n-isti-ar. There lias liecii iiu necessity for suliscrihiiin' for their sup- port and iiiaiiitenaiice. They li\e in a house thviseil hy iiiy luotliei', mid which I have sinoe acquired. This is in Brock \i Me. J//'. Mdclciiiuni conteutled tliat tlie vote wae hatl. The voter nii^'lit eventually have an interest in flie land, at l)resent he was oidy entitled to a contingent interest; besides, tliere was nut sutHcient assessed value to (|ualit'y the V(;ter. The land, thoug'h sw(ji'ii to he worth .Sl,->00, was assessed for S4()(), ami it ou,L;'ht to he assesseil f(jr S8,()n(), so as to g'ive a (iualifictii^n to each of the parties interested. Mr. I[iirri^(jii said there was nothing to pre\enta trustee voting' w hen anv iiart of the trust was in his own favor. He referred to Rui/irs on Elections, '27, i)th ed., and argued that in England a trustee couM vote. The words in oui' statute (-^2 Vic, c. 21 . s. (i, suh-s. I ), that a \-oter must l)e an owner, Ajc, "in his own right oi' in that of his wife," did not e.Kclude the light of a ti'ustee to vote. The Vk'e-Ch.\xcellor said at present \\r would hold that a trustee could not vote. What was meant was the real, the lieneticial, owner shcmM vote. The WMjnLs used in the statute, referred to liy Mr. Hai'rison, afforded a very strong presumption against the right of a trustee to vote; and ref(.'rring to the terms of the (»ith, whicli re(|uii'ed the \'oter to swear that lie was " actuallv. tiulv, and in irood faith possesseil to his own use and henetit as owner," &.C., he thought it was so strong as to put an end to the dispute. As to the t question of the voter l)eing an occu- pa.'it, he at)peared to have no present beneficial interest in the land, and no future inten st, as he was excluded liy the will. Vote held bad. THOMAS I'l.ACES VOTE. Tkoiiuis Plurc: 1 voteii at the Town Hall, fourth subdixi- sion, Augusta. 1 forim-rly rented front half 27, in (Jth '")0 1S71] sol Til (illKWfl.I.K. 177 acii's). 1 iliil sc at till- tiiui' lit" assrssiiii'iit ill 1.S7I. I own 11(1 otlii'i' i.'ind. I sold 100 acres to one CarponttT. 1 iiiaiU'i'ssioii. on tlic LiTtli Kcliinary, ISJI. I lia\c lia■'(,/! i /III/ : I rented from -John Burns. 'I'lu,' Birkleys last suii>!iier took the crops oti' the land I had rented from Mr. B)Uins. They got j)osses.sion in the spring of this year. 1 had a written lease from Burns. The Assessment Roll was [)rodueed, from which it appeared that the voter was assessed for the rear 100 acres of Lot 27, in Gth (sold to Carpenter, 27tli February 1n71). and that he was not assessed for th<' property he was in possession of as owner (2-"5, in Oth con. ), or as tenant I I'ro/i/ lOO acres, 27, in (itii con.) Till.' VlCE-ClI.\N('KI, [,«)!{ said he would follow th«' decision of ('hief Justice Hagai'ty in a similar case at Ijrockvillo, where a voter who was assessed for a wrong lot (No. :}4 ii.-tead of No. i^.')) was held not ipialitied to vot*\ (JJmrk- riJIf case, 7 ('an. !^. .1. 221 ; s.e,, JlriniijJi nn Ehctldiis, 11). Til' luling of the Cliief Justice was sup))ortiMl liy the statute. The mistake in tlu' numl.iei of a lot did not come 12 ii « !. I If F*^ hi \l'- If! f, ■^41 J 17S i'i!ii\iN( lAi, i;i.i;i-ii(i\s. [A.I. uiiiliT tlir sniiic nilf iis the iiiistaki' i>\' t\ iiaiiic, as the latti'i- is ]iio\iilcsessor. The properly is wortli Si ,(!()(». W'r ]iaid S.IOO tor II .M \ interest worth tliat. Till' .\ssessment lloll was produced. ami slioweii that the lot was assesse 1 1 .^1^00. The \'h'K-('ll.\Nti:i,l.(ii; held that parol i'\idence of \-alui was inadmi-->llile to altei' the \alue assesseil a^'aiiist tin proj)e|-t\- in the Assessment Roll. The N'otei' and his hl'otl were lo int owneis ot' the lot. and the a.- ler sessed \ahle wa.- tlot sntliciellt to ei\(' each a \'ote. Note held had. At the close of the scrutiiiv it wasa'luiitted that the Votes stood eipial foi' each of tile caudiilates. The ]tartie~ then a'j,'ree(l that the election should heileclared xoiil.and that each party sliouM pay his own costs. The \'|r|;-( 'll A.Vcl'.M.ni; theri'U|)on ileclared the elet'tioli VoM (ti Jul' I'li'il L'ni N. /isst'lil., !.")(.), p. :•.). is?-'. WKST ToltoNTt). 17!) I'lmviyciAi. AV.AV'/voxs l^:; WEST TORONTO (2). I!i;i-nui: ("ill! I' .IrsTK i: Dkai'KH. TiiKusrci, '■III, ,'//., "/('/ I'lili Mill/, is:',. William Xdxwsds, Pi/ifiom i\v. lUtWKWv l!i;i,i,, Jus/huk/i nf. ,\'ii ii> (iri-i ji/iii;i iiii'l il r'nihii'ij sfi'ii'it iiiiii.-< lii/iinr iliir'iiiii iKilliini /iiiiirs — I 'firrii/i/ iiriirl'iri.< //// a jki rln'iilnr r/as.-i .;,' I'ir,^ c. .'/, s. liH ; .111 Till- tiiltli M'cTiiiii lit' .')•_' \'ic., c. '2\ (Mk'L-tiiiM \y,i\\ <>t' IS(iS), proviiics that •■ nil spirituous or kTuu'iitt-d lii|U<)is or ilriiiks .shall Le sulil iii' given to any [htsou" ihuiiii,' tin- ilay apiiniiitcd for puUini,' in tiiu wards or iauiiiti|ialitii;.s iu \\iiich tiic polls arc iichl ; ami hy s. 1 of' ."{(i \'ii'., r. 2, "t'oi'iupt practicr "' nu.'aus "auy vinlation of tla- (Kith section of till' Klfttion Law (if l.S(iS iluriiig the houis appointcil tor polling ; " aud !>>■ s. ;i of the latty any candidate at an election, or liy his agent, whether with or without the actual knowledge or consent ')f such camlidate, " avoids the election. (di the day of the election in ipiestion, and during the hours appointed tor polling, one M., an agent of the respondent for the purposes of rlie eUction. was oll'ered hy a person unknown to hitn spirituous liipior (whiskey) iu a hottle, which such agent, after renion.itrating ^^•ith such person, accepted ar.d drank at the polling place where ■-iich agent then was. 'I'he unknfiwn person also gave spirituous lii|uor troni the same bottle to other persons then presijnt. //•'i/, that as the Legislature had, liy the provisions as to the selling or giving of liijuoi' during the hours of polling, in-ovided for the punish- Mieiit of one particular class, which was detineil to he the seller or _'iver, it diil not intend to include tiu' other class, the purchaser or receiver, to which no reference was made, e.\ce])t infcrentially : ami that therefore such agent, as the receiver of spirituous lii|uor during sucli [lolling hours, was not guilty of a eorrujit practice. The [)i'titioii coiitaiiK'J the usual charL^cs as to corrupt practk'L's. The elfctieiu took place on tlic lllli and Istli • laiiuar\', 1.N7-"). i' ! ! Mr. Ilitliiiitr dinl Mr. X. W. l[iiiili.-< t'or jirtitionci'. Mr. Alfrril linnjthrr miil Mr. Rrulf fur I'l'sjn lUi Iclit. The evidence oi\ the cluir^'e of corrupt practic<'s hy an aij,iMit of the i'es])on(lcnt was as t'oUows : •A/A-/ xl. Mncihinrll : (^). — Vou acted as an aii'ent for Ml'. Bi'll '. A.- -Yes ^ Q. — Ale vou awai-e of any li([Uoi' 13 WfT iMii 4f El i ISO * T'n«)ViNTF.\r, Kr.KCTroNs. [a.d. liaviiiy' luTii nis-fii nil poUiiiy' (liiy, or sold (lui'iiiL;' tlic liouis of polliiin' :' A. — No ; I liM\c liriird Nuniic rf]iorts. (^. — Xt'vcr iiiiiwl wlifit you liji\c licani, t'xct-pt you luivc licanl it tVoiu Mr. lii'll : wcro ycni pi-est'iit wlioii any li(|Uoi' was n'iNcii :' A. — Ves ; t\w\v was a man at tlic [)oHiii;H' ))lac,(.' wlx'i'i' I stood; I di (,'S leiv A. — To hoth partii's, I think. Q. — Did he come tl again '. A. — I don't think lie came hack, and no one elsi' tried this. Evidence was also given of treating during polling hours on the day of the election, at tavei'us within the electoral division, hy John Ball and Richard Duplex. referreMJ to in the judgment. Mr. Bi'thune saiy Duplex, uinl tlir tliiiy an niikiiDwn pcrso?). It wiisimt uici'ssjiry to (•((iisidcr tlic tirst ami scconil cases, as tlii'i'f was ti(»t sntlioirnt piuot" nf an't'iicy. Tln' third casi-, liuw- cviT, was (»nc wliicli came up for the first tinic ninlfi' the >IatUtr. Tlic odtll section of the Act of j.StiS pi'oliiliitiMJ the kfi'|)inu' open of taverns and the sale or n'ivinL;' of v|,iiinious liijUoi' duriiiL;- the hours of poljinn' to any per- son \\ ithin thi' liniitN ,,\' the niuuicipality. I>y the earlier Act of I>i71, rclatine' to the trial of controverted elections, corrupt jiractices were detiiieil to lie liriliery, undue in- tlncnce, and illegal an <^ n /a VI c*. c*i ^m 0^. ^? /A "c^ .> Photographic Sciences Corporation -b N? ^ d|\ \ \ ^9) V ^ ^ ^ 6^ 73 WEST MAIN STREET WEBSTER, NY 14580 (716) 872-4503 ^ ^ ■!? fc &/ s u: hi -i ' i!ii*K.^ * I * 182 FUOVINCIAL EI-ECTI<>NS. [A.1, was clear that it' Mr. Maedoiu'll luul latioii of the law. In tlie Connni// msc (l)oni.) {n) the Chancelloi' had held that the old canon of a t i shi!!in<',s and sixpence had heen s|)ent in l)i'iher_,, )■ r-;id have no choice hut to avoiti the electioi\ {BliicUni,-a t^'st; 1 ( )'M. and H. iO'I) : ami in tlie 'Mi \'ic., cjip. '2., sec. •">, no distinction was luadr between giving licpior and giving money. Mr. yA>/////y/v contended thattlu' intention of theanien !(»se taverns and stores, and prevent the proprietors carryijig li(|Uor to harns or othei- plac("> and selling it there, and thus avoid being IIiumI Tlir object of the present law was to secure purity of ch-etion. Judging from the evidence, it appeaved that the intention of the Ijc^islature had been carrietj out in this instance, and it would be a most unfortunate thing if.afteran elec- tion had been conducti'fl as this had lieen, it should beset aside because of a trifling act, such as was mae was put in the Act without consideiing the full eti'ect it would have, and that the Court would construe it ditler- ently from what the petitioner contend'd. Du.Xi'En, C. J., A. — The only charge in the petition wliidi was entere (n) Kcpurtud Doiiiiiiioii KliTtinns, 1>74, /kiiI. IM.').] WEST TDHONTO. isa personally ami liy his a<,a'nts, hrt'or*'. duriiiu' any his a<;ents, for whose iu-ts, in these respects, he was answerahle : that he fully expeetetl that he should prove that the re-spondent was put foiward as a candidate hy the liil»eial-t'onser\ative As.sociation in the City of Toronto, on the uiulerstandiny that he was to he jnit to no exi)en.se, and that he ]»laced himself in theii- hands, therehy constitutin;^- all its iiifiiihers who took jmrt in tlie election as his ay;ents, and ill su[)port of tliis assertion he read a part of the lespond- ciit s de])()sition. The trial lasted ]>ai't of two days, diirinij^ which fifty -five witnt'sses were examined. I adjourneil rather eailier than I had intendi'il, as there was one witness, whose [)rol»al»K' impoi'tance to tlu' petitioiiei- liad only hecome appai'ent hy tlie tt^stimony Ljiven durin;^ the first dav; and I thought it hetter. understandint; that 111) witnesses would he called for the defence, that the testimony in support of the petition should he completed liefoie Mr. Bethune summed up. At theclo.se of this witness's examination, Mr. liethune aihiiitted that the charixe of ln-ihery was altoifether unsus- tallied, and that he 'niist rest the ca.se upon the allegation tit' treating. Three ca.ses of treating,' durinj^^ the election had heenprovetl. Two of them he would not pi'ess, as the fact that the parties who <;ave the liipior were ai^cnts of the respondent wa.s notestahlished ; hut ho conti'ndtMl that the case of Mr. John A. Macdonell was differ-iiit. There was no . If ' 'J^' i(»iii«»ti' tlii'i'lcctinii of a candidate ilK'''al, liaviiiy; liccii altcit'd liv ouiittiii'!' the word.s " witli intent to jnoniote the election of a candidati-. ' it ,slio\vei'2. Vic, cap. '2\, as he who <;ave it; and, therefore, as Mr. Muctlonell had accepted anriiiid /i"i, ca.se of hi'ihery. The evidence also did not conr.v ct tlit; sittinii' memher iiersonallv witli anv act which coiiM sustain the chaij^e of cornij»t practices, so far as hrihery is I'oncerni'tl. But seveial witnes.scs wt'ie examined to prove either treatinu' or a hreach of the (Kith section nf the -i'l Vic. cap. '2\, which retpiiit's that every h(»tel. tavein or .shop in which spii-ituous or tV'rmentfd liquors ordi-inl are ordinarily .sold, shall he dosed duiiuLj the day a| pointed for pollinn' in the wai'ds of munieijtalities in which the polls are held, and prohihits sdlin;,' oi- ^ivin<;' to any per.son within the linuts of such municipality, dui'iui; the .said period, any sj)irituous or fermented li<|Uors, under a penalty of 8100 in e\ -ry such case. There was eviy 'M\ Vic, cap. '1, sec. 1, and the suhstitution of another definition in lieu thereof, which latter definition makes any violation of the (Kith section dui'in,!4' the h< 's of pollini; a corrupt piactice. This change in the law does n(»t. however, affect the question 1 am callee sohl or ^iven "' make the purchaser or recijiient in effect a seller or f^ivei', and as such suliject to a i>enalty of SlOO in every siich case, for " st-U " or "u;i^'"' are the only words in the Act which can he nia. Wll.l.lAM FircilNKH, I'ltUionrr, v. .l.VMKS (J. Jtis/Hintfriif. ClHKlK, I'llli'i/ili " ijlli'linil II hliliji- ill i/iiiililli) ICIirtilill Cifii /ii/hillililliiiii (;/ (inririiiiitiif Siri'.tiitii — (.'nrni/>l Tniiliiuj — Eriilinri ns tn ojh r nf Jirihiit — /)i/iijli.>ilK'il. If tlieri' is an lioiioMt conllift of tfsti- iiiiiiiy a.s to tlu" (.H'fiR'e cliar^itl, or if acts oc lan^^iiajit' arc icasoii- alily su.s(i.|)til)lo of two intcriirctaiioiis, one iniioifiit ami the other iiilpahlf, tlio .liulgt; IM to take ea If tiiat lie (hies not adojit tiie eiilpalile iiiteijiretatioii unless, after the most careful eonsidei-ation. he is con- vineed that in view of all the eii'eiunstanet's it is the only one which the evidence warrants his adopting as the true one. The respondent was ciiarged with intimidating (iovernment servants, during his speech at the nomination of I'andidates, hy threateiiinc to procure the lemoval of all ( iovernnient servants who should not \(iti' iiiv liini, or who should vote against him. The i vii!,.nce showed that, though in the heat of deliate, and when irritated liy one l'., he used strong language, there was no founilation for the corrupt charge ; and as it should not have been ma^ f ; ; r ' = ■:H' fit" > !( r |l: • ff f- ' iiiiM.] ' ^HPf ISS PHuVlNCIAI, KI.Ki TI«>NS. [A.I. Tiif iTHpoiitlfiit wnH (inlcivd to pay t)i«' coHtM of tlit' |K'titi(>ii /nnl trial, f.\i'('|it tlir t'lintH of I'l'i'taiii Inhik'n toiiiiil ill fikvor of ri'Hpoiiilfiit, part of « liirli I'liHtN Were to lie piiid liy pctitioiicr to the i'i'M|K)iii|fiit ; ami an to part, cai'ii party «a» oiilncil to lu-ar In.* own, I'Ik' iittition I'tnitaiiu'il tlit- iihuhI cluugivs of conujit |»iiu'tic»'.s. Mr ./(iiiii^ A. Millii' Hill/ Mr. Piii|t'iit ami liis aijciit.s is s«'t furtli in tin- ju|»fr at Whitcnians ; (M) Ujion the ;4innnil oi" liiilifs iiU'cifil, as is aUcu'*''i. to Harper. W illiaiii Hi-own. aii'l one Ai rliel-, liV one H. leliis. Who, tl- is contenih'il. was an aiii-nt of the ies|»on(|ent ; (4) u|tiiii the Liinnnil of umhi" inthience aUej^ed to have lieen » ;er- c'iseil liy one Ha^iaf. who, as is eonteiitled, was an a},jent of tlic^ res)ioinlent. an. ISO consist of acts or langua;;*' which aic rcasonalily siisct'ii- tihlf of two iiitt'iitrctatious, one innocent an to ;;ive to the iiiattei- in hane olis(i\ci| that it is r«'sence as well of hi> opponent anil of ///s friemls, as in the presi-nce of /lis iiii'it fiiends, tothi-eaten that he wouM )>rociu«' the ii-moval nf all the (Jovernment servants at the canal wh(» shouM nut \ern iiiaiir in such a presence, that the utteiei' sliouM not ha\"e I'ltii instantly called to account j/ni/nni/i i/i/irfn. But tliert' is aliumlance of I'videnee l»y reason of which I have no ditlieulty in arriving at tlu' conclusion that. althy reason of the oyster supi>ei' at ^^hiteman's tavern, an tavt'Tii oil tilt' t'ollowiiij; diiy, I am nf Dpinion u|»«»ii tlic fNidciicf, ami so tiiitl as a matter «tt' fact, that tin- mcftiii^- wliicli Iiae his friends, partook of tho.se oysters at the expense of the others who supplied them, I can .see nothing;' which can in this suppei' lie properly construed to he corrupt treatinn', and it was not contended to he a violation of the 2nd sec. of .S(l Vic, ca|). '2. The complaint as to what took place on the following day consists in this: that l>r. Haiiey, who was j^^oini; ahoiit with the respondent, visiting' a few of the hitter's friends, did, as he swore is his constant practice when meetin;j,' his friends, treat .some of them at the tavern, and thjit one Gainer, a friend of the respond- ent, did in the respondent's presence treat a fi-iend of his own. an juris siiniiiiti iiijuriii. Tt» <^i> l>y the strict Ifttcr of tin- law uft«'n woultl protUu'c \fiv Lriavc wniii^. Il" I wn^ t"i >ii\" that an cK'ction was void ii|ii' jj;«>in,if to tlif (iiuns juris, and tin- icsult would !'»' siinnim in/iirin; tli«Tft'oir. tln' ilii|Uiiv must Im- as to thr t'xtciit ami aiiioiiiit of sucli casts. " To liold such an anioiuit of trcatiiiL;' as is rcliol ii|ion in this case, and yivt-n under tlic cii'cunistancrs a|i|naiiiiL;" in the fvidt-ncc, to lie coiiuptly ^^ivcnwith the intent of influenc- iiin the election, would he Well calculati't tlieret'oi'e liold that this chai'Lje is not estahlished. As to the I'hai'^'e invoked in the tliirlaint : Hjii|iei', whose story has in it somr iiarticulars which appeal' to Im- iinpiohahle and who liy liis own account is not a person of the most incorrupt inteiii'ity. is tiatly contradicted hy Hellems, the person whom he accuses of orterini; to him the laihe which he ^av^ was oH'ered to him: Ihown is contradicted not only liv Hellems hut also hy another witness; and Archer is ciiutradictefl hy Helh'Uis and also hy three (»r four other witnesses. In view of these contradictions, and of the in- ditlerent characters which appear to he lioiiie Ity tin- jiersons makiuLj these charii'es. 1 cannot arri\t' at any otiiei' conclusion than that it is not estahlished to my satisfaction that the hrihes which these witnesses allege to have heen oti'ereil to them respecti\ cly hy Hellems Were in fact ever offered to them : so that it hecomes un- necessary to inijuire how far the fact rl mM ■; 1 I!»2 I'HOVIXCMAL KI.KCTIftNS. [a.i». U'-^i ? : i ' >■ I : i) t ' 51 Mm li wIiHtfVtT that Hiiniir ever canvaHMcd a sinLflc vote, iiiil»'s.s it Ik' that he caiivasscMl Krascr. who niak«'s th»' chaii^v uyainst him, and he himself (Icnics that he caiivassfd him or any one rise. He appears to have hccn one of the llcfoiii; v a political association may .so deal with tlie niemhei's of tlie Associ/ition, and may .<(» phact- himself in their hands with the view of availing himself of tlir lieiiefits of their or};;anization, and of the inHucnce of tho individual niembci's of the Association, as to make them his agents, for who.se acts lie should ho responsihle, still it a[i])ears to me that it would he going altogether too far to hold that every delet;ate to a conveiiticju assend>leuM \>r iv|»uy:iuint to tlu' jtWrnu'st principlrs tt\' justice. I nmiiot, tlu'i'tt'nic, up'»" tl"' <'vitlrnc»' ill this ciisc, aiTivf at tlif {•niK-lusii>n that llaLrar was an a;j;(-'nt of thf ifspunilcnt. for whose acts he sh.orilil lie heM les|M)Msilih' totheavoiil- aiice of the election, even thouijh it shtiuM he true that Han'ar iliiilty of conupt practices, and lias therehy expnsed himself not only to tlie penalty .niposed l»y sec. (Hi of li'I \'ic., caj). '2. hut also to the dis(pialiHcations enacted l»y sec. 4!i of .'U Vic, cap. 'i, tluM'e can he no douht. I'pon the facts disclosed in evidence, and notwithstandin;^' his own statement to the ettV-ct that he cautioned people against n'oiny into the open store-room in reai- of his >iiiip and taveiii, where the litpiors to su])|»ly the tavern Were ke[)t, 1 can come to no other e(jnclusion than that lie, liein;^" a tavein-keeper, diil, at the veiy spot where the poll in the township of C'lowland was heiny- taken, an ditliculty in ^fc^ in I- H ?■' 1 f ir w if 1 \ ■^. '4L 1!I4 I'UoVlM lAL KLECTIONS. [A.I. ciilpalilf. It was ill cvt'iy way cak'uliitt'tl to iiillucncc ami coirupt that class of loose ami uiulccidc*! electors wlio liaii^' aiouMyi'd Boardnian to act on lii< liehalf. or he must have to .some extent, either tlirouL;ii himself or hy the ae*^ of an authorized agent, put hiiiisilf di m l^oanlmaiis hands, or have matle common cause witli nil. or have availed him- hini, or have put faith in hi self of his services in doint; what is currently done hv i committee-man or canvasser for promoting the election, o liave iieen aware that lie was so actiuii' for him without IM.^.l WE 1. 1, A NO. 195 iv]iuiliutii»n. Ill tilt' lliinJIiii ai^, (1 O'M. I'sr H. IS), I'.lack'imii, .1, lius licld tlmt an ai^ffnt iiia]iniisil»lf l'(ir tlic acts (if a suli-aj^'t'iit as well as tlu' aLffiit, t\(ii tlioivuli tilt' cainliilatt' ct't'il now tt) consitlt'i' tlif fvidcncc u|M)n which tlie (|Uisticin in this case tuiiis. It apiicars tliat a couNfiition of an association called till' Kfforni Association, was called for the pnrpose of imiiiinatin^' a canditlatc in the lleforni intei'est. To the (•(iiivfiition each niunicijiality in the electoral tUvision cltcttd eiti'ht tl('k'<;'att's, which eiifht 'ieiation always acted foi' thf Reform canilitlatf : that it had always heen umlerstoiHl that they were to act for the llrfoi'iii cantlidate: that Mr. Currie. the ]>rt'S('nt I'esjiondent, liad stood foi' the county in former elections, an no iiieetin!^ of a central committee on this fifction. The cn.stom liatl heen on former occasions for the nieiiihers "i" tile committees of the Refoiiii Association to act as com- iiiittees for Ml'. Currie to pi'omote his election, and re- jiMits wci-,. made from the local committees to the Central Ketuiui Committee. U ^ 1 I I'.M) PROVIXCIAL ELECTIONS. [A.n. Jolin Hcndersfm, lli.'t'Vf of Ci'<)\vlfiii«l, a most respoctivl)lr witness, who uavi.' his tL'stiiiiuiiv in a most camliil manner, and who impi-esst'tl me witli the Iteliet' that he (lid not wish any corrupt |)ractices to he adopted liy any one in jiromotion of the ivspon(h'nt"s (deetion, says that he was chairman of the C(»mmittee of the Ilt-foi-m Association foi' tlie township of C'lowland. Tlie- committee, consistiiii: of eiulit, inchi(hn^' liimself, \ver(,' eh'ctef tlu' ifsnlt of liis canvass, and stated that thero wnuld 111' a largi' niajoi-ity for Mr. Cunic in his section. \\r made a return slujwinti' 'i .Ljood majority. At tliis iiicitiui;- arraiii;"einents were niatle as to hrinuin^' np voters tn the ]tMll early on the Monday, Jind on the Sunday, llriidirson nave Mr. Currie a ^jiieneral i-eturn of the result (if the canvass of tlie township. Boardnian, as Mr. Henderson says, was expeoteil to work like any other Uifoiiiiei'. Boardnian did not say he would attend t(j liiinuin^' up voti'rs, hut he saw Hemlersonon the Saturday lirfoie jiolline' day, anil told him that all was right. Mr. Currie himself says that althouj.,di he appointed no com- mittee specially to act for him, lie did ask some of his friends to work for him. He says that he sent the can- xassin^' hooks in parcels to his frien ►• ,i 1 '! i ; r 198 PRDVIXCIAL ELECTIONS. [A.I.. advisL'il Ml'. Curric tliat it \V()ulf the res})ondent. and nut- .specially authorized to appoint othei- agents under him tn canva.ss ami act in the respondents interest. It apjitais that he point Boardman as such suh-agent, ainl, upon the whole, I am compelled to say that u[>on this evidence I can arrive at no other conclusion thaji that such a degree of assistance was rendered hy Boardman in vii'tue of the selection made of him as a trtistwoithy per.son, to whom the interests of the respondent were cnii- tide(l Ity John Henderson in virtue of the power in that hehalf vesteil in him hy the ivspondent, that the rc- .spondeiit imist ahi Ix-ar ami pay liis own costs, aii'l •,'xct'i)t also so niueli of the said costs as iclati- to the tii^tht-ail of complaint litMvin above cnunieratetl, the costs of which I ilo onlt.M' that the petitioner «lo pa}' to the ns|M»n^. Asscm., LS7')-H, p. .').) RUSSELL. Before Chan'cfllok Si'I.'Aooe. L'ORKiXAL, -i/v/ anil Jfth Juiir, 1S7'J. RoHERT OgILVIE d "l, PrtitioHcrs, V. AlX\M J.VCOB B.VKER, lir.sjioiuli'nt. Corni/if iiractlccs 1)1/ Ai/enf — Ailini.-<-iioii of Counxii — Kn-jniKj funrn open and tn-at'iini on /'ollini/ Day. Onu P.. a tavern-keeper, was given 85 by tlie respondent, and reijuested to appoint a scrutineer to act for tlie respondent at tlie poll on polling ilay. V. kept his tavern open on polling day, and various persons treated there during polling iiours. ("ounsel for tlie respondent, after tiie evidence of the above facts had been given, admitted tiiat F. was an agent of the respondent, auil that his acts were sutKcient to avoid the election. *! m '.! X' \\\, . (• 1^ ; i :i; : ^ A i I,' 1 i it :1 Mifi *! ' " " ; J i: ' \ 1 j ^ 1 i- ■ ! i i * lii 200 I'ROVINCIAL ELECTK »XS. [A.D. Hfld, tli.at althougli the Cmirt did not ad jmlicate tliat tlif respoiiik'iit. Iiy giving tliu.S'i and ri'(|tiesting I"\ to apjioiiit ascriitinfcr, liad c(jn.stitutid liini an agent for all purpose.s. it was the practice of the t'ourt t(i take the admission of counstd in place of pmof of agency, and tiieretnic the adniisbion of connsel ad to l-'.'s agency was sufficient. lldil further, that F., as such agent, iiad l>een guilty oi a corrupt prac- tice in keeping iiis tavern open on polling day, and that such corrupt practice avoided tile election. The petition contained tlie usual charges of corrupt practice.s. Mr. J. K. Kvrr for petitioner. ^fl•. Jolm O'Connor, Q.C., for res[)on(lent. Tlie eviilence of the corrupt [iractices on wliicli tlio election was avoided was as follows: Michiil FuHhcH : I keep a tavern. ^Ir. Baker was ut my place on the Sunday hefcjre the election. He gave me authority to appoint an agent foi- him, anlain the personal chai'ges. Mr. Kerr accepted thi.s proposition. \km^ l.s7.').J lUSSELL. 201 Till' I'ospondont was tlicn calk'il, ane \ery corm})t pi'actices in the elections. He thought the law was a very neces.sary one to meet that evil. As to the treating in this case, lie did not think that it liiid heen hrought home to the respondent within the meaning of the law. He might say that a piuctice more fleniorali/ing than the system of treating in vogue could scarcely exi.st. It was a pity, he thought, that public |C'4l!'f -i i fc ' ; '' ?.' t--' ,ir t i S ' ■ ■ ■ 1 >f ;i: "^ 202 I'HoVINciAI. KI.KCTloXS. [A.I.. sciitiiiiciit I'Uiis tlif way it ilocs. A nuiii ifors intu ii tuvfin, Hiid it scciiis to Iti' t'X|»fct<'(l of liim as a matter ot" ctiursf tliat lie sliouM ijivc anlriit spii-its to wliati-vci' ptU'SOlls Wt'lc tllflV |»ltscll(. ami Ullirss lie fliH'S so In- is coiisidcicil of a incan aiiil Minyar'Hy flispositioii. Tliccon- stMHU'iH't' WHS tlir \i'iy wiilrspicail i'\ il of intcinpcraiicc. Tlu'i't' was not a case wliich caiiic In-fore him in wliidi tliis evil lia and honest mannei-. Mr. Kcir had sai to himself satisfactory that Mr. IJaker had jiurncd himself .so thoroughly from the iiersonal I'liaiires that had heen made against him. These personal chaii^fes the Couit did nut ,<;ive eti'ect to except on cle.tr and satisfactory evidence, and ceitainly in this case sueli evidence had n Jui'mnJ Lnjis. .,!..., i.. I.s7o-0, p. <-).) \\ '■ IN?.'.] COIIXWALL. 20:? CORN WALL. m BeFOHE CHAN(EI,l-(iU Sl'HACJOE. CoKNWAI.I,, St/l Jliil', /X,".). .ImIIN (;ii(h lit. lirihi rij hi/ itii At/i lit — AihiiiMsinn of (Joiniix'l. A voter wlici liiid Iteuii frL'(|iUMitly tiiiLMl fcir (Iruiiki'iiiiess was caiiv;i.s.sc(l l)y ( '. to vote for tile respouiU'iit, unci was iiskeil l)y liiiii " liow iiiiicli of that iiiiiiu'V " (paiil in tino«) " he wouhl take back anil leave tnwn until the election was over." t'ouusel for the respomlent ailniitted tiiat V. was an agent cjf the I'esponil- ent, ami that the evidence was sutlieieiit to avoid tlit; election. //'A/, that the election was void on account of corrupt practices l)y an agent of the respondent. The petition c'<»utuiiR'; i p^ h'H It i; : ' i ■;i If .i^ ;S;H iiie to drink, 1»ut I iR-rsistiMl in niv rt'fiisal. Mv son di-iink. 1 V «- Hv askt'd nic if I was y'oin'; to vote with the Melntviv l)artv. f told liini ' eoiiM not Lfive an answer, as mv mind was not made np. H' .said I nuistknow liow I was i^oini; to vote. I told Idm I would not know until the moniini;'. lie aski'd me what tliey hatl done to put me a;j;ainst them, ami I spoke of tlu' money taken fi'om me l»y the tines. I said tliat that company had taken too nnieh money out of me for me now to support tliem. He i-eplied, askin;^' iiic how nnieh of that money I would take Itaek and leaxc town until the election was over. 1 told him I never left mv counti'V vet di.shonestlv. and I would not do so now. He replied, Don't vote to-morrow withinit eominj^ to se^ me. and then hid me n;oo.] nrxDAH. 20.') M'lit. 1 sliJiU report that ooi-iujtt piactii'cs wcic imt pnivnl bc't'ore nio to liavo uxtensivi'ly pirvailffl in the ck-ctitin. With his ('citificati' to the S|M'akcr nf the icsiilt of the trial, thf h-ariu'il .Jud^'c rcpoitt-il that Knlicrt ('(Uiitty was t)rn\»'mhi(ilh)ii Ihiji k rornijt/ jirnrlirr - Tr< iitinij Art, ,"■ Will. III., r. .'f ; .IJ I'ir., r. }/, s. Ill ,• ,,V; I';,-., ,•. .', y. .'. Tlif ri'siMimli'ut, wlio was a iiu'IiiIht (»f a tfin|ifr;uici' (iigaiiizatioii, lu'lil an ok'i'tioii iiieetiii),' in a locality witliin thf I'lcctuial "tivisiun, ami al'iiiit an hour afti^i' tlii' nifcting had disin'i'scil, wi'ntto a taviTn «hfio he met alioiit M) or 1.") poi'sons in the hai'-i'duni. tn whom hi' niailf the nrnark. " Moyw, will yon havi- something.' '.'" Nothin;.' was then taken; liut (ine 10., a supjiorter of tin; despondent, said he would treat, and he did tivat the jiersons present, and the respunilent ;,'ave him tlie niiMU'V to pay for the ti'eat. II' III, 1. 'I'hat as the meeting for jjromoting the eleetion had dispei'sed an lioiir he'oi'e the respoailent went to the tavei'n, tlii.s was not a meeting of r'leetoi's. ■J. That the treating not having heen done with a corrupt intent, was not an otienee uniler Wl \'ie. , c. '21, s. (il, as amended liy ;{<> \'ie., c. '1, s. ■_', nor at common law. i>ii>iri. Whether the Treating Act, 7 William III., c. 4, is in force in this Province. Tile respondent had in 1S7.S compromiHed with his creditors for ."lO cent^ in the .'r!l, and then promised to pay all his creditors in full, Alioiit the time of the election he paid one ."^., who had at the two previous elections supported the opposing candidate, a portion of the promised amount. //'/'/, under the circumstances, the payment was not lirihery. Wiiere one party atlirmed and the other party denied a corrupt oiler lietween them as to voting for the respctu'lent, //'/'/, that the oticr was not snilicieiitly proved. One v., an agent of the respondent, on the day of the nomination of c-m- •lidates to contest the election, and while the sjieaking was going on, treateil a large numher of persons at a tavern across tiie street from the place of the nomination, for which he paid ifl or !?.S. //' /'/ a corrupt practice by Jin agent of the respondent, which avoided the election. HI i. "II '4b II 'I yfii 206 I'HOVIN'CIAK KF.KITIONS. [A.r.. TIk- prtitioii st't l'i)rtli tlu' Usual c'liar;^»'.s of CDiiupt inactic'i's. Mr. Ihthnnc for prtitioiuT. ^fr. Alfrcil I,'nii///ii'f II nil Mr. J. II. Rm/f t'oi- rt'Niioudont. The cviilciiet' aH't'ctiu;^' the t'lfctiou, n't'ci rnl to in tliL- Juilniiicnt, A'as as follows ; Aiii/nir Jirnili r, Jtisjuiiuli lit : I haw Itei'ii a iiK'niluT of tfiuiKTaneL' associations oft' and •)n for 'uanv years. I am a total altstaiiuM'. In Jaiuiary last I was a incniltcr of till' Inflrpi'ndt'iit Order of (fOod Teniiilars, whose piLMljre is not to touch, taste, oi- handle intoxicating' liijUor.s, l»eer, wine, or cider. It may he [)art of the ohlij^ation not to liuy or sell, hut I don't know. I ut through the instrumentality of Empey, was in suhstance a treat hy the respondent. This treating was impeached as a corrupt act on three grounds : 1st, As against the statutes of iMiS and 1S7:}; '2n(\, As again.st ilie Ti'eating Act, 7 Will'am III., c. 4; and .Srd, As an offence at conniion law. In the hi'st place, was this a meeting of the electt^rs assei"l)leil for the purpose of promoting the election f [The liained Judue reviewed the facts of the case, showinu' that the meeting had dispersed one hour hefoi'e the respondent went to tlie hotel.] There was }io adjournment (jf the iiu'eting; no preconcei'ted arrangement of meeting at the hotel, but an accidental meeting of a few pers(jns. He lield it was not theref')!'"' a meeting of the electors. In till.' second place, assuming the Treatin^^, Act of William HI. to be in force here, was this treating a corrupt act /iiT se ^ He ref\'rre(l to the authorities to sliow that •'treating in order to be elected, or for being elected," did not apply to this case He doubted whether the Act of William III. was in force hei'e ("). nnd cited the • l.'cision of Chief Justice Hagarty in the (I'/rnijinri/ cv.sf (";//' p. ^S) in .support of his opinion, ."inl, Was it co)'i'U])t treating at connnon law.' At lirst treating was eo)i- siilered a species of bribery — biibeiw l)y refreshment — and that a corrupt moti\'e was in the heart of the giver and the receiver. It is laid down by llogers ( 1 1 th Ed., J). -UiO) that it may be doubted whether treatirg was e\er (") In the /yi'Ji/iru' ttnil Ailtliii;itiiii cds,- (l,s4I), the coiiiiiiittee (of whicli .\Ie.s^^l•s. W. H. l>iii|ier, T. ('. .X.vlwiii, .1. K. Sinull, ainl utliers were iiieiiii)ers) held "that truatiiii; nii tile I'lirt of tlie sitting,' nieiiiher was [iroveil, hut that it is nut, in the opinion oi the com- iiiittee, a le^al (ground for avoidinu^ *' e election under tlie law.s in foree in tliat part ut thiti Province, liurotofore I'pper Canac'a. " I'atikh » J-Jlrctiim J'ii'Cfilints,j,, .',.',. IWI III iff If : 210 T'ROVINCIAL ELECTIONS. [A.D. n' : Ek \ ■i; i : Yi Si an otience at coiunion law. The true consideration is, was the thini; done corrii])tl3', i.e., with the object of doini^' what tlie Le'nslature intended to forbid ? Tlie Judfje must look broatllv at the common sense of the thinrj as to wliether it was corrupt oi' not. He felt no difficulty in negativing tlie idea of corrupt intent ; and taking all the circumstances into consideration, he did not consider this act of treating came within the meaning of the statute. The payment to SuH'el nmst be looked upon as a debt of honor, it having Iteen promisefl when the deed of composition was made. Sufiel's character, appearance, and the manner in which he gave his evidence, placed him above suspicion. Then the large numlier of othei- cases in which the respondent had carried out his pro- mises — notably to women — robbed tlie act of any a])peai- ance of bribery which it might otherwise ha\'e worn. He ruled that in this also there was no corrupt intent As to the Bockus case, he inclined to the lielief that something was said about building, but that Bockus, in [lis anxiety to get work, fancied more than was said. He could not think Dr. Hickey made any such promise us was implied. The treating by E'arlinger at the nomination he held came witliin the mischief of the law, as it was a treating of the electors at a meeting of the electors to promote tlic flection. The large, extensive powers given by the re- spondent to his V)rother, constituted him an agent in the largest sense, giving him power to appoint sub-agents; ami he attacheil uKjre weight to William Broder's connection with Farlinuer as constitutin*'' him an agent, than to the latters position in the Conservative Association. The common-sense view of the evidence was that Farlingei' was an agent. In conclusion, he ac(piitted the respondent of all coi- rupt acts by himself, or his agents with his knowledge. He congratulated the respondent upon the manner in which the election had been conducted. There was an entire absence of evidence of corruption; and few persons 187.3.] WES'; HAfSTINfiS. 211 had licen subjected to so searclnnj;' an examination as the respondent liaeen. He ac(|uittc(l liini and liis active suppnrters of all coiTupt acts. Althonnli lie believed Mr. Karlingei- was not actuated by any eoi-nipt motives in (fivin''- the treat at the nomination, still the act was one wliich came within the meaning" <»i' the statute as a coi-- nipt practice, and he could not overlook it. In conse- (|Uriice of that act, and that alone, he was comi)elle. 7.) WEST HASTIN<;S. BeI'OKL L'HAN'CELI.OH Si'KAfiCE. liKi.i.Kvn.i.K, r7tli (iml tsth M(i>/, /,s;7. Kmsh.v Wesley, PifUlmur, v. Tho.mas Wwa.^^, R)>iptiiiil>„f. Pujimi III of' Ef'rtio'i h'.i/x iis( .< hi/ tin < 'iiik/'k/h/' — Corrn/i/ /'riirtici .t .\l< m. l)ir'-< Oiitli -.10 V'lr.. i\ ,\ .s.<. 7-lJ ; .IS ]"k-., >■. .!, ■■<. C. Tliu Act '.\i\ \'ic., c. 2, ss. 7-1-, rL'c[iiirt's nil uluctimi i'A|)t'ii8i:.s (if ramliilates shall lie paid througli an ult'ctioii agent ; anil the Act .SS Vie., e. .'i, s. (i. i:e(|uii'e.s the nieniher-eleet t in the iiiendier's oath meant "any corrupt practice." The petition contained the usual allegations as to coi'tu'pt |)ra'-tices. }[r. Biihuin: and }[r. Vli'ti for iietitioiier. Mr. Wallhridfie, Q.C, and Mr.i^.J. Hull, for respomU'iit. Tlie facts of the case are set out in the judj^ment. 15 u m if U: h •'■ i^ j 1 1; - ^ 'i -'!''■ I*' »i If,.. Ik 212 PKOVINCI A L KLECTIONS. [a.d. Mr. JJef/nmr contendcil tliat sec. 7 of the Act of 1878, 3() Vic, c 2, absolutely forbade any payment of election expenses except throu^li an aj^^ent, any the petitioner narrowed themselves into two cases: rtrst, that a hall haHAf;fiE. London, ..'/■• the voter was jioor, told him to keep the change. I hill, under the circumstances, not au act of bribery. 'riic petition contained the usual cluirges of coirupt practices. '■r. ./. K. Ki rr for petitioner. '.' fibJuiDioti, Q.C., and Mr. II. Birln r. for responiWll>|F! ir- is:.-).] LONDON. 21.') h-v l)v trtulo. Hf waspanvassod on the Saturout the election while drinking. He told me to keep the change, aiul I kept it accordingly. He aftei-wards gave me some mort' money to get a further supply of beer. I only had to go to the next house for it ; we di'ank that too. He was there foi- some time ; I paid ten cents for it the second time. I i-emend^er there was some change; he told me to keep that too, and that it would do to get me a di'iid< in the morning. He ui'ged me to vote for Meredith. He went away ahout twelve. My wife asked me to vote for Mr. Meredith; she .said this gentleman was going to give her a present if I voted that way. He was there before I saw him the first time. He I'emained (juite a tinie the last time. 1 accompanied him to the door as he was leaving. He said nothing to my wife except good- night ; I he!i"'d nothing more. I ;s. I asked sDiiie voters to vote for Mi' Mereverty, " 1 1" \: «!' il 1.1 ^li » \ \ -V' n - ' M M" ^< 1 1 ' 1 ^. ^1 1 t 1 ! ^ 1 i ; j \ :, \ i : S-'&M Uh 1 1 ; ' III H^l i y ^ 1 Mil 21 N I'HoVINCIAr. Kr.KCTlONS. [A.n. I tlutuuht it would 111' liarti to take Ixick tlu.' chan<'».'. I • lon't think the change was otiricil to iiic, At the dose of the ai'i,^iiiii('Mt of counsel the Court ailjourue Houst;, and tlie Woolstoiv case, Tlu! charg(! of treatiiiL;' at tlie Revere House against the I'espondent himself liau are i-eallv in want, the eitv will relieve vou. If you are really in want, 1 will t wood fi'om the city Ijefiji'e ; and it had also liceM proved that Bi'own had relieve■ 'i\ '> .'rr ,I:,K . ; ■i, ■ : ' ' '^' ■ ' . ■• '.A 1; _ 'd\ I < , \ i' i r ii|)|ilif(l to Kciulitli y (•oiitniMin;^ all tlif imiiifs of tlu' clri-toiN ill till' city, liiit it docs not iil^iKiir to liu\c I'ccii siicli ; it whs only a liuok witli tlit' iiaiii(> ill liis ()\\ n wniil. Ncitlicr iTnl Kci^jliticy appear to have yot anv y,fMrial authority from tlic icsiioinlciit to act lor liiiii ; the rcspoiuleiit appeared to rc^iiird him as a man of /cal with little discretion, ami not a man to he altonether trusted with his contidence. ihivinj;' thus stated his views with regard to agency, ho thi)ii<>'ht it was unnecessnrv for him to <>■*) into the acts of hiilieiy saiil to haxc iieen used on the occasion of inducing Woolstou to give his Note. 'I'here was a contlict of e\ idellce, and each party hud given their own account. He preferred to accept till' evidence of the witness Keightley himself, and to hold, as in the case of I'inkham, that the change re- ceived for the l)eer was given as charity, and, theicfore, that Woolston was not l)rilie(l. Tlu^ promi.se of money to Mr.s. Woolston would have lieen an act of lirihery had it lieeii stitliciently [)ros("'. The act on Keightley"s part (as >tated l»y him.self) he held to he a suspicious act — a most danger(jus act — and showed a good deal of impro[)riety on his |)ait; hut it had not, in his o[)inion, l)et'n sutHciently' proved to constitute an act of Itriherv for which a can- didate could he made I'csponsihle. With reference to the law as applicahle to treating aneen imich nee(le(| in the city of London. There were in all communities some electors who were a[)t to he corrupted. Some were ajtt to he corrupted hy drink, and there were others — and peiliaps they were more in )niml»er— who would sell their votes for gain ; for this reason, a strict and stringent election law^ was reciu'red, and he disagreed with those juilges who held otherwise. The determination of Mr. Meredith was that he would i-ather stay at home than be returned corruptly, and the result of t'..is incjuiry haho\vn that he had not been returned corruptly. He was tniLs enabled to form a very diti'erent opinion of the city '*fore the trial ; and those who got up the bill of particulars ought to have been nmch more careful in doing so ; thtjse charges were not only not proven, but entirely disproven. He concludeil by congratulating Mr. Meredith upon having come out of the election with his hands clean. The result was that tlie petition be dismissed and the respondent found duly elected ; the petiti«jner to pay costs. (9 Journal Legis. Asscm., ISTo-O, p. 22.) H' i. 187.3.] WEST ELGIN. v>EST ELGIN. 22:i Before Chief Justice Draper. Toronto, 10th ami 17th April, 1S75. ,|(iHN Cascaden, Petitioner, v. Malcolm U. Mi'nroe, Respondent. I'rurth'i — /'(irtiriilars for scriitini/ — Tindind voti.f — Corri(/i/ /iraclki.i — Ballotx and counfir/oiU — 7th General Rid*' in Election <.'(/xr-.s. WiiL'ii tlu! petition claimed the seat for the iinsuccojsfiil uamlidate on the LTouiiils that (1) illegal votes ami ('2) improperly marked ballots were rt'ceived in favor of the successful candidate ; that ('A) good votes and (4) properly marked ballots for tlie unsuccessful candidate were iinprdperly refused ; and that (o) the, successful can ( Vown in Chancery his ivturn, and all the doeumeuts and pa])ers eiunnei'ated in that section, among which are the countei- hiils. It would he useless to make an order on the ])eti- tioner to furnish inf(^rmation whieli I have no reason to suppose he possesses. The same reason appears to me to apply to every item, or nearly so, in this hi-anch of the Mniunons. A reference to Sfonv v. -foli/i, L. R. !) C'.P. 44(), which was mentione. John Cascaded, Pefltioarv, v. Malcolm G. Mi'xroe, Hcspondenf. P't'i/'inii rhi'umnij fhf x/'at — Scnit'iiiji of ro/i.'i — OhitiK/i' nf da/f of trial— W'lthilriiical of I'lxpoiulcnt — .SV^y airnrthd to t/f ni(-S7'), pursuant to the 8(5 Vic, c. 2, ss. 'iS-iJT, directini^a scrutiny of votes in each of the muni- fipalities of the electoral division. The scrutiny there- upon took place before the Reo-istrar, and was cuKhicted liv tlie followinn- coun.sel : Mr. Dnvid'^on Black nnd Mr. J. II. Coij^ir for petitioner. Mr. John McLean for respondent. Durinj,^ the .scrutiny, IS votes foi- the respondent were held had, and w^ere struck off the respondents poll, and the vote of one of the respondent's agents was held bad for corrupt practices. The I'espondent tliereupon aban- 'loned tiie defence of the seat tiiijiin niid Afr. J. II. Coyne for petitioner. Mr. John Mr.Loni for respondent. Tlie Chancellor said that the trial of tl\e elcctiini petition had been fixed fur tlie 2Sth June, l)Ut as Imtli parties had ai.(reed to his taking' it at an earlier day it' it were found convenient, lie had changed the day of trial to to-day. He had ii I'U ahle to got the I'eport of tin' scrutiny of voteb • ■ i ' e Registrar, hut he presuiiu'il counsel knew the naturo of it and could state the result. Mr. M((cih)H(jall, for t' ■■ ])et ■'' '\er, said that the result of the scrutiny was to give Mr. If vlg'iis a majority of eij^lit votes. The respondent had agreed to let that staml as Mr. Hodgins' majority, and that the Court should report that Mr. Hodgins was duly elected. The petition was then read hy the Registrar. The Chancellor asked if it was intended to prosecute the charges of cori'ujit practices against the respondent, or if there was a counter ])etition against Mr. Hodgins :* Mr. Mi(nh)ii(j(iJI sai(i it was not intended to prosecute the charges against the respomh-nt, and there was no counter petition. Mr. .UcLriin, foi- the respondoit, then read the consent signed hy the counsel for hoth parties, and stated that on hearing the evidence of one of the witnesses e.Kamined on the scrutiny of votes, he was convinced that the election of the I'espondent would he avoided ; and ncjt wishing to incur a very large expense, he, on hehalf of the respondent, had proposed the settlement which was agreed to, iunl was emhodied in the con.sent just read. The Chancellor then asked if any one else desired to continue the defence against the petition, in place of the respondent. 1,S7.').] WEST ELGIN. 'ilMl .)//■. MeLran said lit' ave judifuient, declaring,' that the res[)ondent was not duly elected, and ought not to liHVi' heen returncil as nieuiher for West Elgin, and that Mr. Hodgins was duly elected, and ought to have heen returned. The following cei'titicate of the result of the trial was traiisiiiitted hy the learned Judge to the Speaker: In pursuance of the Controverted Elections Act of 1S71, I lieg to certify to you, in relation to the election for the KIce )ral Division of the West Killing of tlie County of Klgiii, iioMen on the eleventh and eighteenth days of January last past, that a petition was duly preseiited umk'r the statutes against the return of Malcolm G. Mun- roe, Es(|uire, as nu'niher to represent the said Electoral I)ivi- i 230 PltOVIXClAL ELECTIONS. [a.d. tlie said election was entered into before him, as flirocttil by the said oi'der, and on the conclusion ot" the scrutinv he determined that the said Thomas Hod^^dns had n majority of eight of the j,'ood and legal votes at the siiil ek"tion. That the trial of the said petition came Ijefore iiif at the town of St. Thomas, in the county of Elgin, on Thursday, the twenty-fourth day of June last past. That at the conclusion of the said trial, I detex'iuincil that the election of the said Malcolm G. Mum-oe was void, and that the said Thomas Hodgins was duly elected at the said election. And I certify such determination to you, pursuant to the statute in that behalf. That no evidence was given before me at the trial. I append hereto a copy of the notes of evidence takiii before the said Charles Allan Brough on the said scrutiny. The learned Judge further reportei McAllister ; T live in the Kerry settlement. I was at a uieetino- held in the school-house duriny' the eli'ctiou, called by Mr. Fahey. It was a meeting of the electors. The school-house was pretty full. It was about a week before the polling day, or the week ])efoi-e. The polling day was on Monday. Mi-. Fahey addressed the imeting on behalf of Mr. McGowan. There was .some whiskev going at the meeting; Mr. Fahev brought it tliore. He told us it was his whiskey. It was serve■■ ' i ill 'i 4' i ! f I V-! I i ' . 1, rj: m i ji if 282 PROVINCIAL ELECTIONS. [a. I). Tlu' whiskey was servt'd out lict'oic he connncncctl to nr it : I ilid not sv\v\. IJiuyar was j)i'e- sciit when this was said. Th? whiskey was ln'ouuht iliiwn: some hoys Itroufjht it in. I said to O'Callauhan and Milloy, now if you Avant a (h'ink, here it is; Milloy took a ilrink ; I took one iny.self: O'C'allaniian put it to liis lips but did not (h'ink. 1 thou^^ht tlien that it was a trap, and 1 ,sai. .)//•. Ilodii'iiis said tliut so fni' lis the petitioner was coii- ceiiieil lie had no desire to press tlie personal charLi'es.aiid would lea\<' the case as to tlu'Ui to the Court without aryuuient. GwYNNK.J. — I determine tlie election of the respondent to he nidi and void liy reason of corrupt practices, in this, that James Faliey, an au'eiit of the said i'es]ionilent for ])romotin,iLf the said election, in violation of tlie (ilst seciion of the Klectioii Law of iMtl.S, as amended hy the h^lcction Act of IS7"), di'es of hrihery (which were not estah- lished), and also the costs incidental to the provinn' certain tavern keepers miilty of havine- for their own proHt sold liipior within pollint,' hours on the poliiiii; day, lait for the followinu' reasons. Two of the charges of lirihery were attem|)ted to he estahlished hy the e\idctice of the re- spondent's tinaiuiial ayvnt; who, while his evidence showed that in the matter complaine(l of there was no just im[)utation of any chary'eof hrihery, certainly showed \ I'ly e(|uivocal comluct of his own in the matter, attri- hutalile either to n'l-oss io-norance on his pai't, or to a graver charge of want of fidelity to his employer and to the trust lui lmtli section of the 1^7.').] SdlTH KSSKX. 235 Act of |S(iS, wliicli it was [huncI tln-y iliil I'oi' tin ir nwn iniifit. w iili wliicli llir rfs)MHi(li'iit liml iiotliiii;^ to
  • , I (•!iMiii»t .s('|)iii'ati' tht'st' from lli'' ^fiirial costs, lirciuisc, U| "arcfiil rcjicnisal of the c\ idriui, 1 tiinl that the sc .1 witlU'SSCM who spoke to these [loilits also spoke to other p. SamI'EI- McUEi!-, Prtitioner, v. LEWIS WuiLE, Iiryiiiiiilr)i/. Ai/iiif ni'i'i/if'iiiij a Iratl in n Inri rn i/nriin/ jiDUiin/ hours — (.'iirrii/it Pnv'fh'c — Coxfs, On tlic (l;iy of the election, and during the hours of polling, one \V., an aj,'ont of the respondent, w.is oll'ered a treat in a tavi rn \\itliin one of tin; polling il ..i ■ of wliieli such agent and otiiers then partook. //'/'/, that giving a treat in a tavt'rn during polling hours was a corrupt practice, and being an act participated in by an agent of tiie respond- ent, the election was avoided. Tiic petitioner was declareil entitled to the general costs of the imiuirj', ami the costs of tlie evidence incurred in proof of the facts u])on which tliu election was avoided ; hut the costs incmi'cd in respect of charges which the petitioner failed to prove wei'e di.sallowed. The petition contained the usual charges of corrupt piactices. I 2.3G PROVINCIAL EF-ECTIOXS. [a.d Mr. A/cirau/c'- Canu'nni for petitioner. Mr. Hornr and Mr. S. White for respondent. The niateiial facts of the ease on which tlie election was hel'l void are set out hi the following evidence : Jdfuis McQueen : I know Alfred Wigle ; I .saw him in Itoth ta\:'rns at Ruthven on polling day. He treated five or si.x; persons on polling day. It was at Taylor's; Alfred Wigle and I had a drink or two afterwards ; it was while the polling was going on ; it was in Lovelace's sitting-room. There were five or six of us together. I treated once ; I am not sure whether Alfred Wigle treated at Lovelace's ; he drank. There are only the two taveins at Ruthven. 1 saw Alfred Wigle several times in the taverns during polling hours. Went to Taylor's ahout 9, about tlie time of the opening of the poll ; went to Lovelaces about noon. Alfred Wigle : I heard James McQueen's evidence. I saw him on polling day. I treated him on polling day : it was pretty early ; i don't know whether it was before or after the o[)ening of the poll. It was pretty early, .] SOUTH ESSEX. 237 It ■■ i ■ .K. clt^'tion agent) we could y-ive ]iretty i^-ood support wliore wf were. I appointed Henry Smith as scrutineer for re- s])i))ident, and y'ot liini to act as sueli on tlie pollin,u' day. [Tlie other evidence as to ag'ency is omitted.] Si'H.UJOE, C. — At the close of tlie argument on Satui'(hiy last I gave niy views upon the several points of law and (if fact presented in the case. One point o]dy I did not decide tinally, vi/,., whether tlie partaking l)y Alfred Wigle, whom L find to he .m a<'enc of the resixnident, of a ti'eat i>iven 1)V James Mc- (^Hieen, dui-ing polling hours, in Lovelace's tavern, was a corrupt act within the statute, which would a\()id the election. I could .see no escape from the conclu.sion that this act, prohihited hy the (i()th .sec. of the Act -i'l Vic, cap. '2\ , and declared to he, being within polling houi's, a coi'ru[)t act hy -SG Vic, cap. 2, s. 1 , and heing an act partici- pated in hy one foi' whose acts the respondent was i-espon- sihle. nnist avoid the election. I have since had an oppoi'tunity of conferring with tliiee of the other Judges, and they all concur in the view which I ex])ressed at the conclusion of the argument. The result is, that I nnist declai'e tlie election void hy i-eason I if the corrupt pi'actice hy an agent. As to costs, I think the petitioner is entitled to the geneial costs of the iiKpiiiy ; hut the costs have heen i^Teatlv increased hv tlie callinL!: "f witnesses on changes which the petitioners have i'aiied to prove ; and the costs, so far as they have been ,so increa.sed, are to be di.sallowed. No costs are to be taxed in respect to the evidence, except such as have been incui-.ed by [)roof of the fact upon which my judgment proceeds. In the seaiching and protracted inquiiy whicli has been had before nie, I find no per.sonal wrong proveil ugainst the respondent. The expen.ses of the election have been Very moderate, and the evidence leads me to believe that the I'csponilent desired and endeavored that the election should be a pure one. V i P-. :!■ |M ' 1 J I '. :■ i ■i \ tt 1 -i m ( m 2:JS PROVINCIAL ELECTIONS. [A.n. With his certificate to the Speaker of the result of tlic trial, the learned Judge reported that Alfred Wigle and James McQueen were proved to ha\e been guilty of cor- rupt practices at the election. ([) Journal Lajis. Asae/ii., 1875-6, p. 11.) SOUTH OXFORD. Before Chief Jtstice Dkai'er. Toronto, lut/t A/iril, /^"^7. Benjamin Hopkins, Pditlomr,\. Ada.m Oli\y.\\, Erspondi at. Ai/'-nt of rt'/ipoii nU intiat^ mnJ But the Judge is (s. 17), v.-luoi a eoirupt pi-actice is charged, in ad' ! ],s7o.] SOUTH OXFORD. 243 I understand the application is made on behalf of the respondent, and not of Brown. If it were on behalf of tliL" latter, I should <,nve him his costs, as no objection was made to his beiny heard. If of the respondent, the point hAwj^ new, I will give no costs. ■4 if ^ SOUTH OXFORD. Bei-'oue Chief Jtstice Drai'EK. Woodstock, /■//// /n I'lth Jilhl, IS7-'i. UkNMAMIN' HoI'KIN'S, PctUiinirr, V. Al)A^[ ()\A\'EU,Ei:y>Oil(/rii/. I'roih«:tioii of ti'li'ijrinns — Eviih)i''f rcsiicvtiiiii rlKinjix not in ji(ir/iculai\'i - Exdadiuij licipoiiihii/'s Af/orini/ from roiirf. Tlie Ciiiirt oi'din'oil tliu iiLjciit of a teluLjniph c nnpaiiy to proiliii;e all telc- ;4rains st;ut hy tin; I'cspoinlciit ami liis allugud aguiit (lui'iiit; the t'lectioii, ivs( rsiiig to tlio r(.'.spoii(lcut the riglit to iiiovo tlie Court ot A|)pual on tlio point : the rosijonsiliility as to uoii.sutpiunce.s, if it went wrong so to oilier, to rest on the petitioner. A witness ealleil on a charge in the particulars of giving spirituous liipiois ill a certain tavern on polling day, during polling hours, cannot lie asked it' he got li'iuor during polling hours in other taverns. The attoriiey for the respondent may be ordered out of court when a witness i.s being exaniineil on a charge of a corrupt l)argain for his withdrawal from tlie election contest, when the evidence of such witness may refer to the sayings and doings of such attorney in re- spect ol such withdrawal. The statements in the petition appear on p. 23er of witnesses hadheen exainined, it was iVMivcd l>y tliL' counsel for both partios tliat the eU'ction slidulil 1m' declared void on account of con-upt pi-actices liv (iiic William McMurray, an a;^-(»nt of the respondent, in fivinu; spirituous and fermented licjuoi-s at his tavei'n, in the town of Ini,^ei\soll, on the pollin;L,Mlay, dui'in;^ the hours a])p()inted for polling, in violation of section ()0 of the Klectiun Law of iHiJH. The Chief Ji'stice certified accoi-dingly, and report(>(l t'lMt William ^IcMui-ray was pi-oven to have been {jniilty (if corrupt practices at the said election. (9 Journal Lcr/is. A.-t practice, ami a breach of tiie (ilst 8. of '^'l Vic, c. 'Jl, as amended by -nd s. of 'M\ Vic, c 'J. Tin; petition coiitaiiioil the usual duirges of connjit pifictices. Mr. Bctliitnc and Mr. D. W. Dumble for petitioner. Mr. Hector Cdmcnni, <,^.C., imd Mr. JJiiri'hain foi' i' spondent. In addition to what is set out in tlie jud^^nent, tlic following evidence was given : Francis Birdsa// : I live in Asphodel. J asked people in my neighhoi'hood to vote for Dr. O'SulIivaji. There was a meeting at Wcstwood — not a puhlie meeting — of thr friends of Dr. () Sullivan. We talked over the eleetioii: made arrangements for bringing up voters on polling ilay. John Breakenridge and Charles O'Reilly were the agents for O'SuUivan at this election. I had a team nut mi polling day. Treated myself au.] EAST PETEUHOKO. 247 hotel; a nicetiii;,' of rcsponi lout's ctMitral coimiiittt'c ; 20 or '.]() persons \ye\v |)rt'SL'Ut ; ix'spondciit was not there. I WHS secretary ; I had no reifuhu- appointment. At that nu't'tiuLC I was appointed as au'ent for the resfjondent for poUiriij;' day, hut responvern, it was a ;4'lass of heer to which he treated himself; he neitlier LCave noi- sold. I tind for tlie respondent on these charges. The facts on wliicli the election was avoided are sulH- ciently set out in the judgment. Draper, C. J. A. — It is veiy satisfactory U) me to he uMe to tind that there is no evidence whatever in this case wliich impugns the personal conduct or character of the respondent. I tind not on!}' that lie is free from the imputation of any forbidden practice in the course of this L'leetion, hut that he has endeavoreil, by earnest advice and i-aution, to restrain his friends and supjiorters from doing anything which would enal)le his opponents to neutralize flic success to which he aspired, and render the election in whlcli lio contidently anticipated success being open to question through the indiscretion or recklessness (jf any of them. Unfortunately, his advice was disregarded; the ri' 248 PHOVrNCIAL EI-ECTIONS. [A.n. law t'orhiddin^' tho practice of treating aiieen wantonly violated, and the princi|)al iiiatlcr of in(|nirv is whethei' any of the leading euli)i'its in these otlenees are su fui identified with tlu; respondent as in j-'int of law to constitute them his ag(;nts, and to r* nder him respunsilijc for their illegal acts. There was a meeting of the electors ut Apsley ahout a week l)efore the itollini; (hiv. It hud lu'cn puliliclv advertised. The respondent, the petitioner and Major Boulton all spoke at it. The respondent had engaged a sleigh, and one Timothy Cavanagh and Miijor Hoiiltoii accompanie(l lum to tins meeting. They drove first to Holmes's taveiii. After the meeting the respondent anil Cavanagh returneer of those electors who attended the meetinu' went also to Holmes's, (/avan- agh treated the people; Holmes .says he tohl him to give the people lifpior, and Cavanagh says he treated many times, and that one Boyd — a .supporter of Stratton's, the opposing candidate — did .so likewi.se. This continued, as Cavanagh states, from 10 p ni. to 2 a.m. the next moiniiii;'. The facts are relied upon to show a violation of the (J 1st section of the Election Law of l.Sfi.S, by Cavanagh, at the expen.se of the respondent, or at his own expen.se, in pro- viding and furni.shing driid< to a meeting of electors a.s.send)led for the purpo.se of promoting such election. If this be proved, then the ([uestion arises, was Cavfuiagh the agent for i-t'spondent ? For if he was, then the latter is answerable for his acts and cori'upt pi'actices, thonuii, as in this case, he not only did not authorize them, but actually, and in sincerity, endeavoreil to prevent them. Agency does not necessarily reipiire to be proven by an actual appointment, verbal or written, by the candidate. " It is a result of law to be drawn from the facts of the case, and from the acts of the individuals." Every instance in which, with the knowledsije of the candidate or his eniployed agent, say his expense agent, a per.son acts at m r 1S7.).] EAST l'KTKIU5(»|{(>. 2+!) nil ill t'uitli('riM<; tlic clcctioii for Iiiiii, oi- in tryinj^' to ijcf votes for liiiii, tt'ii ioned him to do nothing which would spoil his elec- iii — a cant ti which strengthens the as.suniption that the respond, ut coiuited on Cavanagh's assistance and cxeiions. Majoi- Boulton, who also went with the re- spoi.lcnt and Cavanagh. heard the former tell Cavanagh not to treat nor do any ing to coiiipromi.se him or avoid the election — a chai'ge which points to the employment of Cavanagh for some work or duty in which his acts would be deemed acts done under the implied authority of the respondent. A^ in, on the day after this meeting. I I I fc i ', w 'tllll 'M,^, -250 PROVINCIAL ELECTIOXS. [a. I). Ml'. John McDonalil, win) apjieared to me to be a very I'espectable wituoss, saw Cavauan'h ii,iiee in a cutter w'hich he hii'ed, hut does not know whethei" he ])aid for it, oi' whether it was charged to respondent. The I'cspon.lent's authc.i/ed agi'iit paid foi- the meals which Cavanag'n got, and whifh Holmes had charged against him in nn account stance ; ami substantiated hy ])arties none of whom are hostilt^ to the respondent, they ap})eai' lo me to fui'ni.sh sti'ong evidence of agency. 1 am alive to the danger, as well as to the apparent hardsliip^ of tixing the respondent with liability for acts done hy another as his agent, which oilier, if the ([uestion had been directly put to him, he would not have employed in that chai-acler. There was ol)vious misgiving on the res[)()iiil- ents p;irt, and api)arently still greater on Carnegie's, l»ut 1 think they ivsolved to incur the I'isk, and, without any formal appointment, the i-espondent av.'rile*.! himself of his services, ami 7/^'*'^'/ the ..lection, became responsible foi' his acts. Assuming the agency to hi; establi.she:>] I think tliis is a ln-eacli of the 2uS()>S. 'I'lic oiilv (juestion that can arise is wliether tins l 1 IffltMfHl ii iu. 252 PROVINCIAL ELECTIONS. [A.D. within the statute. I have been given to iindefstaml that a siniilai- construction was adopted in another case. 1 liave seen no reason hitlierto to change my opinion, and adhering to it, I am under tlie necessity of finding tliat this was a corrupt practice committed by an agent of tin/ respondent, though without liis actual knowlt.Mlgc and consent, and that the election and return are void. The result is, I find for the petitioner on the first charge relied upon by Mr. Bethune. I give no judgment (jn the charn'e of treatini>' by Cavanajj^h at Smith's tavern at Indian River, as it was not included in the particulais, ami I find for the respondent on the other charges. (9 Journnl Lrgis. A^san., lS7')-(), p. 10.) NORTH VICTORIA. Before Chief Justice Draper. LixiJSAY, .'fth to 7f/i, lS(h and I'-ttli AinjiiM, IS^J. Duncan McRae, Petitioner, v. John David Smith, Eespondent. Prarf'iO' — Part'ifiihivx — Erhliiirc of hrihirji and of fu/cix')/ — Enli'rtninmi'nt tit It iiU'cthni iif clictor.i — Il'iiiiui trdiiix on ptiHimj daij — Ai/int tnnthiij diirinij /lullini/ hours — CW- )iot in Piirtiriilarx — Recrinilnatonj case. AVhere piirticular.s wore dolivereil after tlie tiiiu; limited by tlie order fin- particulars,, and not retiirue.l, an application made at the trial to set them aside was refused ; such application should have been nuule in Chambers bi-fore the trial. Particulars of recriminatory charges delivered after the time limited by the onler for such particulars were allowed, but the petitioner was allowed to apply for time to answei' the charges therein contained, ami was given such costs as had l)eeu occasioned by the granting of the application. Where evidence of an act of keeping open his tavern on polling day, and selling litpior therein as usual, by P., an agent of the petitioner, came out on cross-examination, and during the argument the evidence was ol)jccted to because the charge was not in the particulars, the case was not considered. The evidence respecting a charge of })ribery, by payment of a disputul debt, was held insufficient to sustain the ciiarge. After a meeting of electors in a town hall, some friends of the respondent remained together consulting about tiie election, and afterwards went to a tavern, where some of them boarded, and had an oyster supper. LS7. petitionei', I! ' ^- (IIP',: nP .'■n'^m^^9^,: 1S7.").] NORTH VICTORIA. 2:)8 //(A/, that tlie evidence was not satficient to sustain the charge that tills was entertainnient furnisiied to a meeting of electors under s. (Jl of IV2 Vic, c. 21, as amended liy 'Mi ^'i' , c. 'J, s. '2. On polling day, one W. asked two voters to go witli liim and vote for tiie respondent, and lie would bring them back, and they eouhl feed tiieir liorses and have dinner. W. sent on(! of his liorses on some of liis own Imsiness, and hired from one of the voters a horse, for wiiieii W. paid him .")0c., and tlien drove witii tiie two votei's to the poll. Ill III, not a hiring of a hor.se, etc., to carry voters to the poll witliin s. 71, nor a furnishing of entertainment to induce voters to vote for the re- spondent, within s. (il of the Election Law of 18()8. An oiler liy an agent of the respondent when canvassing a voter, that he " would see him another time and things w(Mdd lie made right," is not ,111 oiler of Ijribcry. .\ii agent of the respondent, while canvassing a voter, gave .SS to the widowed sister of tiie voter, an old friend of his, wiio was then in re- (hucd circumstances. The agent stated that tiiis was not the first money so given, and that it was in no way connected with the election. Hi III, under the circumstances, not an act of bribeiy. (.)iie -M., an agent of the respondent, treated at a tavern during polling hours on polling pt'r, and sai[)fr. lie heai'd a talk aliotit oats .itter tile suppi-r was mentioned. (Jaynor, one u|' the pai'ty wliii had hi'i'ii at the meetint;", produced a j)aper on whieli WHS written, "Twenty Imshelsof oats at forty cents," ami 'lii'V lau!j,iied, and the pajier was thrown undi-r the tahlc. As tar as he knew, the su[)pei' hail nothing;' to do with the iji'ction. 'i'he oysters were n'ot frcjm (laynors, who keeps a ^nicciy near tlie tavern. When Shove came down from si'i'iii'^- respondent, lie stated that respondi'nt had said, ■ \Vliate\cr .iiiii says." 'I'lie witness unih'rstood tlfat he wa^ niraiit hy " .lim. ' The particular to su[)[»ort which the forc^'oiiiL;' evidence \va^ u'ixi'ii. is that one Frederick Sho\'e, of the \illa^e of Miiideii, an agent of the res[)()ndent, anled for till' ]iurpose of promoting the tdeetion, at the hotel ol' i). Buck, ill till' Village of Miinlen. 1 think tliis particular is not proved hy the e\ iilenee -i\eii. 1 assume it to he ameiide(l so as to ohxiate any minor ohjectious, hut it fails in my opinion, on the essen- tial ground that Shove is not shown t(j lie generally the ii'spoiulent's agent, noi- particularly to furnish this eiiter- tMiniiicnt. Mr. Shove (whose manner ajtpeared to me to iiiilicate that he entertaiiie(| no mean opinion of himself) •If^ired to have an oyster supper at the respondent's ex- pi'iise, and to evade the law against treating, wliicli he t'l'ai'eil might apply, [iroposed tlie alismd sclieme of an imaginary purchase of oats for a sum much in excess of what the su[)per would have cost, and then goes to th<' ivspoiident, who was just going to l>ed, to invite him to ,|i)iii theni. concluding that if he accepted the invitation 111' wouM pay the hill. The respondent very prudently 'k'clined, coupling the refusal with a caution against anv 18 V iff 200 PROVIN'CIAL ELECTIONS. [A.n. impropt'i" practiw. Sfiovc insult' tlic JUTnnv horse hire, furnished the keeping of two teams, and yaw dinner to them to induce them to vt)te ft)r rt;spontlent. The facts, as well as I can gather from the evitlencc are that Hicks had a team of his own and was employiil Ly Washington to draw lumber for him, Washinntun owning a saw mill. Hicks antl Mitchell were vt)ters, and Hicks had been canvasseil by a Mr. McLaughlin ft»r re- spondent. Washington hatl been written to by respondoiit m W '""" ,»«W"'! »"!*'» ' 'f isT-V] XOliTII VICTOHI.V. 261 for liis vote and influence, ami d'nl not answer tlie lettec tliKiinh lie siippoitetl respondent. On t\w polling,' day. W'a^liinLfton, who was ;^'i)inLf to the poll, nskeil Hicks and MitL'hell to ;;o with him un; done, to iiiret him at the poHinLf-j)lace, and liii'ed from Hicks one of his horses to make uj) his team, ami paitl Hicks half a dollar foi' his hii'i'. WashiiiLjton thtMi drove w itli Hicks anil .N[itchell to the ])()ll. The foreman ai'riveil. ai/ 1 Washington ami he drove oft" in the cuttei', and Hicks au'l Mitchell, with the horses and sleigli, returneil to Washin^'tons house and ^'ot ndent, noi- tliat Washington was i^iiilty of a laeach of either the (ilst or the Tlst sec- tions of the Election Law of LSUS. The next case on which the petitioner's counsel i-elied was Ralph Simpsons case. Till' chai'e'e is that ^[alcolm ^^cl)on'4alI, an a,L!;ent of re- spondent, l)i'il»ed, i)r attempte(l to ln'ilie, or ottered to hrihe ci'itain electors — to wit, llaljih Sim})son, (d" Eldon, and Mis McDonahl, of Ivirktiehl, and furnished and otiei-cd a sum of money to the .said Mrs. McDtjnald to use incoi- m]it practices. 1 tind that Malcolm McDougall was an agent of the re- spondent. I arrive at this conclusion upon the statements contained in his examination l)efoi'e the County Judoe, iunl McDouo'all's evidence confirms me in it. In regard to Simpsons statement, McDougall swore that he nu ) him iin the I'oad on the polling day. He had no doubt he asked him to vote for respondent. He (Simpson) said he was going to vote for McRae, and that he (McDougall) , 1 '".,. ■ If^ .ti 262 I'ltuVlNTIAr, KI.r.cTloNS. fu. Hiiiil iintliinn' ti) liiiii U> induct' him to eliuu^t', liy way nl' proiriist' or otliciwisc. Simpson swears that McDnii'^all a-^kfil him to \(ifc lor r('s])(iii(lcMt, Itiit otrcrcil him iiothin;^" — iliil not mciiiinn money ti» him at alh luit said he wonM like me In vnic Vor I'espondent : if I would, he would see me another d;iv, and thine-s would he made ri^'ht— that he tolil .MeDnU'ia'l he would vote for Mediae, and it was al'ter this that .Mc- l)oui;all said he would see him ai^'ain. I think the e\'idenee falls sjiort of what is reipiiri'd to hi'iui,' the cast' within the statute. 'There was iin wjt'i or loan of moiii'V, or oiler or pron^ise of money or NaluiiMc considerat i(»n. It would, 1 think, he a forced and iin- warrantahle ('()nstruction of the wor. IK "^-■l '2. Next of tlie lot)) .lannai'V, IST-"), i)efore tlie day of polliun-, liiihi'd Fraiu'is Melh'oy, an (dectoi', to induce luni to vote for the petitioner, hy tlie L;'ivinn' up of an a^'.'eenient for tlie cutting of tiiidter u[)on i^ot No, 2, in tlie otli con- cession of the to\vn.slii[) of (Jarileii, to tlie said Fianeis Mcllroy." It w'Jis provt'd tliat Mcllroy ' v\ hy some agreement in writing, whicli was not pi'oduceil, sold tlie tindier growini; upon the lot named, and that under it all the [)ine tindier and liasswooij had Itccii cut down hy the petitioner's workmen, Mcllroy insistt'il that he had sold the pine timhei' only, and that the word " pine should lia\i' lin-n inserteil licfore " timliei'," This agreement was iiiade ujiwards of two years Ijefoi'e the t'lcction, and the pine ami liass had all heen cut, and under it, as Mcllroy stated, the petitioner claimed to have liought all the tindier. Two days liefore a meeting of the petitioner's fi'iends at Kirk- ville, Mi'i'iy and (rilison, two of his su[iiiorters, askeil Mclli'oy who he iritended to \'ote for, and he saiil he did not know that he should vote at all, and told them of tlu' ditierence hetween him ani" X'iftDiifi. (Sd.) " DiniciUi ^Icliuc, per A. McFiidycn, witness." ■Idliu MiTi-y trstitit'il tliat lie (Icsirud to lidp pctitionoi-, jinil went to SCO Mcilroy alxmt liis vote. He knew notlun^' tlicii nt' tlif ditliculty ulioiit tlic tiiidicr. .M(dlroy tdld liini lie L;cm'ffdly sujiiHiitt'd |)('titi()nci'. Mi'iry saw jtititinnrr, and tnldliini uiinall. an a^ent of the resi)ondent, at (\)lM)coids on poll- uvj; day, and the si'ljiuy of li(|Uor on ])ollinu' day hy \\'m. I'i'teis, an ai;('nt of tlie petitioner, at N'ictoria Iloail. 'idn' '•\iilence as to the lattei' is n'iven on o. '2')'). rf 2(JcS PROVINCIAL ELECTIONS. [a.d. On tilt' followin;;- day (lOth August) the learned Judiro aei' of my frieny respondent, who left luvi' appoi ntinents in lilank, siLi'iied li\' him, witli W to lie used if ni'cessary, .so that the respondent niit;'ht alway lia\'e an aL;'ent at th iai t tl lev were not use as lie (Walsh) was not absent fr(jm the p(jll more than fixt- inlnutes. The [loU was taken in a .se[)arate liuildini;' \v\y near the sho[) au< 1 h.^tel. H !■ was {: It tl le inet'tnin' at Tottenliam, in the townshijt of Tecum.seth. Small t linn th ere, ami Small made a speech to which a Ml'.. J 0(JK ones rcpliei;. accllsei! Sin; was sliownu )1" t ones o1 ti'ea(;lierv up Small tl »e conNcntion. and was, as W ilsli umler stood, desirous of defeatinii,' Bowles. Walsh told respond- t out this evidence witli some pai'ticnlaritv, l)ecause upon it is t'omided an ar,i;uiueut tliat it maintains the assertion tliat Small oujjjhttohe i'en'arde(l as an an'i-nt for tlie i'espon(h'nt as to this eU-ction ; that the respondent must c(mse(|Ui!nlly be bound by his acts, and tliat if he is proveil to luivt' lieen guilty of corrupt pi-actices, they will attacli upon the respondent as the acts of his agent, ami will avoiil tlu! election. I will take tin; (|Ut;sli((n upon the assumption that Small was guilty of cori'upt practices against the election laws — a fact in reality iiot eariiig which indii'ectly but strongly lead to the same I'esult, was a well-known memV»er of the Refoi-m party ; nothing transpii'e(l during the whole trial to [)ut this in doubt, and not an oxpre'ssion was drawn from him in his examination to raise a doubt that his political opinions were unehange(l. He admitted that he had a conversation with the respondent, but not about the election ; that he had told him to see young Walsh, who would give liiiu some infoi'ination. The i-espondent did see Walsh, who informed him of tln^ dissatisfaction of some of the Roman Catholics at the treatment of Small by the convention, and that, in Walsh's opinion, this was favorable to the respond- ent's success ; but however well founded that young man's oi)inion, I cannot discover in it any proof that Small had become the respondent's agent for the election, or that respondent had so considered him. Mi'. Small was dis- appointed in an olject which he desired and expected to have obtaineil ; he was iiritated l»ecause (whether rightly or not) he thought there had been treacheiy in the con- duct of some on whom he had relied as frientls, and that unfair means had been resorted to, by which one of those friends accepted and occupied the very position which he coveted; and he resented it not merely in words, but in the acts which he stated in evidence ; and it is to be IS?:).] CAHDWELf-. '17'] iviiinrkf*! tliat not aiiotlitT witncs.s l»nt liiiiisclfpi'ovi's any act on which reliance luis been placed to prove his uj^fencv- It is perl'ectly true tliat ewrythin;^' he did undei- the iiiHuence of those t'eelin inferred. He did not canvass for the respondent cither with tlic respondent or alone. He attended no meetings called hy till' res})()ndent — foi- the meeting at Totteidiam, il' not a Reform meeting, M'asa mixed meeting, and his speech at it was hostile to the convention and its nominee on account of their conduct towards liim. He does not appear to have solicited one vote in favor of the respondent or to have taken one vote for him to the poll ; and, wliile fighting on ])nrely personal gromids against the Reform candidate, he (Idcs not change his opinions as a Reformer. I freely grant that his conduct from a party stand-point was ahsui'd: Init he was an angry man, listening to the promjitings of ilisap])ointed and exciting feelings of womidcd self-estt,-em : hut I can find no proof in it of his agency in favor of the ivspondent ; nor can I fasten upon him a chai'acter which I feel convinced he never meant to assume. I can ipiite umlerstand Small's resolve to oppo.se Bowles, and to do all that he could to defeat him. although in so iloing he was helping the opposite })arty, without desiring thi' success of Bowles' opponent on any other gi-ound than hostility to Bowles, and disregarding all other consecpienees of liis gratifying that hostility ; but I cannot convert such a course into an agency wliich is to affect a paity who :>74 IM{()\M\CI.M. i;i,K( TIOVS. m ■ i V if ■' [A. I). is iiul ill any way coiiiiccUmI with tlic (liHrii'iicc lirhvccn Small ami iJuwIrs, or hold thr rrspoiidcnt to Itc fitrt'('tr(| liy aiiyt hiiiL;" done hy Small in |»uisiiaiH't' of a \iiidicti\i' t'ccliiiM' anainsl aiiotlicr, to which the n's|ii)iidi'iit was no paity. I ninst thri'cfoi'c dismiss thr pftitioii ; and can find iiu I'l'asim which will justil'y lac in ivfiisiiiL;' to ^ixc tln' ivspontk'Mt his costs. (!• Joni'iKtl Liiils. vls.s////., Is7')-(i, |). 2-"!. ) IHIi WKST PKTKin'.oKO. IlKI'iMIl-; ClllKI' JlSIICK l)|{AI'i:i{. \'v.i¥.nv.*n\o. -i'lili 'IikI -'I"! -Iiiln : .'ml (hhI !Sf/i Aii[iii^i, IS! BkI'oK'K 'niH ('(UKT <»|' AlM'KAl,. TdUdN I'll, nill S' iihiilhi r, IS'.'i. W'iM.iAM lli;i'l!ri!N S('(t|"l', I'('/ifi'>iti'i\V. ( JK()l!(ii; ALUKliTlS lir'thi I'll I'll oij'i r iif ( in jiloiiiii' lit —Colli rdilh'hirii iriiliiirr — Tniiliini iliirin'i 'oirn I mi Imiii's- -/•'/ ihiliilt il rriCl' lllll roll ' < 'iii'i'ii/if /ii'iiflic.r — SiX'i'Htl I'li-ii — (.'o.-V.s' liliiiH nil uiniiinlJlii il I ici:«)ii III l]\i iiiailliilssi bk Wliufc, ill t'viilt'iicf of oH'iTs of bfihury, an assertion on oiu' siilu is iiu't liy a coiitrailictiou on tiu' otiiitr, the iiikmh robuiatcil assertion is not sulli- cieut to sustain tlie rliargi.!. A (.'aiiiliilati'"s appeal to liis business, or to his einployniriit of ea))ital in promoting; tin.' ])rosperity of a constitneiicy, if iionestly made, is nut prohiiiiti'il liy law. 'Jiniri , Whether the wonl " ein[)h)yinent " useil in the iiribery elausi's of tile Act refers to an iiuleliiiite hirini:, or wouhl inelinU' a nuiv casual liirini One T. line who was on the roll as an electoi 1.S74, before tlu^ liiial il hail solil 1 ri;visiiin o f the Asses us proprrt\- in it Koll by 'the ( 'ounty .liiilge, was, with the know lei Ige of the respomlciit who was ) vote gi\eiian apjiiiintnieiit In I als ire a doulit existed as to '1", ,'ht t. aet as serntineer at a distant polling jjlace, and also a eertitieati; from the Hetnrning Otiieer under :?S Vic, c. 'A, s. lIS, to enable T. to vote at the place where he was to act as such scrutineer, at which place T. voted witiuiut taking the voter's oatii, and I'eturned without entering upon till' duties of scrutineer. On a question of law reserved ou the above facts for the (/ourt of Appeal, //^/il. tiiat the aet eoinplained of was not a eon upt practice under tin- lent statute ; but under the eircunistauces, the Court ^'ave the re; no costs ill appeal. ipoir is-.v] WKST PKTKHItOHo. 27.-. Tlic pttition fontjiiiicW tlif iistial rlmr^vs of coiiupt |iriu'ti(.'t's. Mr. /frrfor Ciniirnni, Q.C'., "/"/ Mr. If. If. Smifk i'nr |irtiti(iin'r. Mr. J'ulltiiiic (Old Mr. I). ]V. /Jimih/i tor ri'spoinlciit. Dining tlic cxaiiiiimtioii of u witness rcspt'ctiiii,' liis iiccniiiit for li(|\iors su]ii»li(M| to voters on pollini;- iH'iit dui-iu;; th<- i-uniinn-, if ht- would vote tor him. Also on the third particidar, t;har;;in;; that n-Hponilcnt ofi'm'd to i»iu' Cole BaiTt'tt cniploynicnt if h*- would vote for him. Also on thi" fourtli particular, (•har;,dn;,' that n-spondnit ottered to one .lohn C. Wood employnifiit durini,' tlic comin;^ summei- if he would use his itiHu'-net- for n- spondeiit. Also on the twelfth partieular. char;^in<^ tliat respondtnl r I'ftM^ aiid ajjji'eeij to pay the traveilin;^ ex|M'ns«-s of ont- • re;niah Daley, of the Town (tf l*eterlM>ro, from that f )\vn to the plaee where tlu- said Daley was tlteii iii- tentliny; to work, if the said Daley would vot<- for ic spondent, and iliil pav such Ids expenses. Also on the thirteenth paitieular. ehar^in;; a fraudulttil deviee in pi'oein'inii from the Keturnin;,' < >lti<'iT a cfrtiticutc that one Fi-eih-riek Tayloi* was entith-d to vot*- in tin- st'cond ward of the Town of l*eterhi>ro, his nainf appeariiii,' on the voters' list, thou«.;h he had |»ait4*d with tin- pm perty iii ivsj)eet of which his n;imi' so ajtpeareii : and in further pursuance of the saiil d<'vi<'<-, in ;jivin<4 to tin' .said Taylor a colorahle a|)jiointmt'nt to a<'t as a;,'fnt for the respondent, on the polling; day, at one nf the pnll- iiiL;' places for the township of North Moiia^han, for tli<' pur|)i)se of enahlinij; the said Taylor U> vote, without havinij the voter's o;ith tendered to him, whereas it was ni>t inteniled that the saitl Tavloi- should, nor did he. iut as a;.;ent for respondent at the sai mind, ami addt-d : " I .supposi' if I am idle, you will ifivc me woi'k," and that respondent .said lie would j^dve him work for the sununer. Tlie conversation was talked of, IN?."^.] WEST I'KI'KUHOUO. 277 Hii'l four or fiv»' wci^ks aftcrwanls he was ap|)li<'rsonal charj.;e. Barrett's evidence is also relied op to sustain another ji.'rsonal eiiar^e. He swoi-e that respondt-nt askt;d him tor his vote, and he replieij that he hail pi'onu.scd Scott. Ucspondent said that Scott did not j^ive any work. He licaid respondent, at a |)ul»lic meetiniL,^ at the 'I'own Hall, siy he had lots of work on lianeen provided, and that law will be the more respected if it he al suggested that what Wood swore to amouhted to no more than an endeavoi- hy respondent to get his (Wood's) services to canvass for him, for which he was wiilinondent, who insiste(l his vote was gr)od ; and the suhjcet was discussed in respond- ciit's committcie room hetwet'U Fairhairn, Taylor and Lacy, aiiitther of respondent's clerks. Taylor .saw the voter's oath in the committee-room. That .same night Lacy got tVoiii the Retui'uing Officer a certificate undei- tlu^ 2iSth .srction of .*{i M,iii, IS7.;. Hefoke the CoruT ok Aiteai,. ToHoNTi), .'Jiiil Jiiiii 011)1 :.'i)th Si/^ti inlin; /.S'M .Iamks M. BrssELL (/ (i/, IMiiiDitirx, V. William JiAUiiEU, J!' I'li.i/iiiii lit iif tt inii/iiiij of tli'i'tori IrrriiiiliintitM in roHmj f>/>fiil mi ijiii s/ioiis o/jiirt, Ilitnslinieiits provided at ii meeting of electors, all of one politital party, ni- at a meeting of a committee to aid in returning a candidate, liy and lit tiie fxjiense of one or more of their mnnber, unless in some extreme case, cannot he ileeined a breach of the provisions of the statute against treating. Ont' 15., a voter wlio could neitlier read nor write, came into a |io!ling iMiotii, ami in the presence of tiie Deputy Keturning OtHcer askeil for line nut ]>resent to give liim instructions how to maiTv his liallot. The Keputy Returning Ollicer gave the v«)ter a ballot paper, who then stated he wisiied to vote for tlie respondent. One \V., an agent of the respondent, in the polling booth, took the jjcneil and marked the ballot as the voter wished, and tiie voter then handed it to the Deputy He- turning ( >thcer. Xo declaration of inability to read or write was made liy tile voter. //'/'/, that no one but the Deputy Returning t)lHeer was aiithori/ed to mark a votei^'s liallot, fir to inter^'ere with or ipiestion a voter as to his vote; and the Dejuity Returning Othcer permitting the agent of a can- didate to become aciiuainted with the name of the candidate for wliom the voter desired to vote, violated the duty imposed on him to conceal from all persons the mode of voting, and to maintiiin the secrecy of the proceedings. One n. clainuHl tlie right to vote in respect of his wife's property, and was told by W., an agent of the respondent, that he could not vote unless lie could swear the property was his own. The voter's oath was read to him, and the agent repeated his statement, and said he would l")k after the voter if he took the oath. 'J'lie voter appeared to be ilniilitful of his right to vote, and withdrew. II' III, that the agent was not guilty of undue intlueiice. i f ilii > - . 2H4 I'HOVINCIAL KI,K( TIONS. [A.D. //>///, I. 1'luit liii ii|>|R'lliitt' court will not, uxcopt iiiiilvr H)H.>cial I'iri'iiiii- MtJiiiccH, iiitcrfort- with the liniliiii; of tin* court of tirnt iiiHtikiicc mi ijiicHtionNof fact (IcpeiiiliiiK on the verucity of wituusHeHiiml contlictiii){ evidcnt'c. '.'. 'I'hiit iUi thi! .lutlgc trying the petition hiid foinul that tlic r<',s|Miii(|. cnt liiul inmh' the oMer to the wife of the voti-r in the niantiei- nliovu Mt*teil, Hucli iin oiler was ii nroini.^i of ii " viihiahle coiiHiileratioti," witliin the meaning of tlie hri'iery claiixes of ',\'2 Vic, c. '2\. /•'/• /lii/itinls, i'. A, The intention of the Legishiture wa.s, that votoH Hhoiilil lie ^iven fioni tin; convii'tion in the niiiul of the (iter tli;it the eandiihite voted for wilM tlie I lest person for tin- Hitiiation, and tli.it th»^ pnl)lie intercMtis would he Itest served hy electing him ; and that the evil to he i-orrected wjis supporting a candiilate for cmi'ii lucri, ur pei-soiial gain in nioni'y or money's worth to tlie voter. Tlir ih'tition coutaintMl tin- usual chai'^fcs of con-upt ])ractiet's. Mr. •f(iin>a liottf/, Q.C, Ktul Mr. R. S. A/>ju:lhr for peti- tiolUTS. Mr. Bcfhunc for ivspoudt'nt. In addition to tlu- facts si-t out in the Ju' stiiiicwhat n«'W to the practice of di'cidin;; t|uesti»>ns of tact, 1 have felt this duty especially hur ca.se, he deeme(l a Itreach of the provisions aLjainst treating. Mr -Fohn White was examined, and said he was a su])p()i'tei' of the respondent, Imt not a coiumittee-man, aii(l attended no committee meetiiiiXs, though he attendefl several puhlic mei'tintfs. He acteil as the respondent's a^cnt at tin; poll at l)rumt|uin — " worketl with a will for him. I .saw no treating; I had a hottloof brandy; I diank some my.self ; I gave none to any one. This hottle 1 loft on a woi'k-bench in a blacksmith's shop which had been converted into the polling booth ; it was left on my great- coat there ; I tliink I covered the bottle with my coat ; r r 2.S«) I'HOVINCIAL EI,K(TloNS. [a.d. I iiivitt'il no out' to di'mk ; I left the l>ottU' iiftciwaiils at Brown's private tlwcllin^f lious*' ; it was nearly <'iii|)ty.' After some further statement, relative to two meetin;.rs at Palermo, which ajjpeai'eil to have no connection with this I'lection, Mr. White proceeded to say that he thought there were three or four persons, illitei-ate or otherwise, incapahle, without explanation, of nuirkinj; tlieir Imlldt papers. That one liariy, who could neither read noi- write, asked for instructions from one Charles Connoi-, who was not pi'e.sent. Mr. White su<,';jest. d that he should act f(ir Connor, heinj^a supporter of lespoiident. The Keturniiii,' ( )Hicer was present, and heard and saw all that passed. The Itallot })a[)er was placed in Barry's hand hy the Returnin;f ( )tHccr ; he <;()t the pencil and state* 1 he warted to vote f(»r Barher; then Mr. White took the ])encil and markeil the hallot paper as Bai-ry had ex})resse(l he wished it .should 1)0 mai-ked, and tlien Mr. White says he helievcs the liallot j)aper was handed hy Bari'V to the lieturniiitf JlKcer. Now, the 1 2th section of the Ballot Act {)rovidi's for this case: 1st, there nuist he a declaration of incap- acity to mai-k the ballot paper, and the Deputy Returniiiif ( )tticer shall, in tlie presence of the a<^ents of tlie candidates, cau.se the vote of such person to he niai'ked on a liallot paper in the manner dii'ectev the Deputy Returning Officer. Then by section S, snlt- .section 10, power is given to the Dc'puty Returning ( )riicer, either personally or through his clerk, to explain to the voter the mode of voting and the colors in which the numbers and naine.s of candidates are printed on tlie ballot paper. Provision is made for receiving and entering objections by a can,'iv(vs him a prima fadr ri;^ht to vote The ean- didatf or hisH<,'»'Mt may ol)j('ct, ami tht' the oath or atlirmation ami ic- fiivs, his vote is not to he rt'OL-ivt .1. Tlu' l)t'|nity Rt'turiiin;; ( »tliccr is to conceal as far as possihlc, fr(tm all jicrsons |iivsriit, inclmlin^f the [)oll clerU ami 'Ve a;r''nts of the caii'li'lfites, as well as all other persons, the ;iiimh«'r printiMJ oil the liuilot paper ami upon the counterfoil, and not to jMimit the counterfoil to l»e ins|)ecte.i Mr. White spoke of himst'lf as scrutiieer (and not :;i iieral ap'iit for the res|>onilent), appointed hy writing. The appointment was not put in evidence. I do not tind tin- term ".scrutineer" in the Ballot Act; Itut I think the caiididate may limit the authority he -ives to actini; foi- liiiii durine the pollinij. It would so tai- limit the jtowers and authority of the ae;ent, and con.se(|Uently the res|»on- ■-iliiHty of the j)rincipal. It is, however, the Returning' < Mlicers duty not to permit interference hy either candi- date or a<;ent with the discharge of his own prescrilied functions, to execute what the law preserihi-s, ami not to delen;ate to another that which is riipiired of him.self in this lespect. I do not .soe how the Ileturnin>,' < >tHcei can ]iiiiiiit the ajjfent of any candiilate to liecome ac(|uainted with the name of the candidate Wty whom the voter desii'es to vote, or to mark the liallot accordingly for the Voter, without violatine- the duty imposed on him to con- ceal from all persons, includiny' the poll clerks a.nd the agents of the candidates, the matters mentioneth siili-section of section S of the Ballot Act, or maintain the secrecy of the proceedings so i-igidly directeil l»y the IJOth section of that Act. 1 feel compelled to .say that I think tile Deputy Returning Officer was at least guilty of great indiscretion in hi.s conduct in regard to the voter Barrv. There i,s also another ca.se at the .same polling place which was a subject of complaint and investigation as to i :; Kin III -34 fj I't 2H.S PROVLVCFAL EF.ECTIOXS. [a.d. which William Black swore that he went to Druimiuiii on tlie p<)Ilin<,' rac'e(l in this oath, that an uneducated man, as Black stL'iiis to he, shoulfl on a single reading ret'usi? to swear in its full tei-ms. But if the Deputy Returning OtHcer had rcfdivd to the 41st section of the Act, he must have known that every person whose name was on the voters' list luiil a right to vote, provided lliat, upon '^eing pro- iH'ily reiiuired, he took the necessaiy oath or affirmation. Tlu' statute does not sanction any (questioning of tlie voter l>y a candidate or his agent in order to show that his name ought not to have heen placed on the list. Hut as r have come to the conclusion that Black did imt vote hecause he really felt doubtful of his right to votf. and therefoiv was, as he says, " a little afraid," and as 1 have no reason to douht that Mr. White (as he has ■>\vorii) really thought " the man had no right to vote, and liad iii» intention to mi.sl'^nd liim," I cannot fintl the re- spondent through his agent (1 have no douht as to the agi'iK-y) guilty t>f midue influence hy intimidation in this artieulai- ca.se. I have already said I think an improper ursf was pursueins' family afforded even indiiect ])roof that they had made >U(h an assertion from nialieiotis motives or with a corrupt expectation, why was it not brought forward i or if the Holiii..i' reputation for veracity would not l)ear investiga- tion, why was that noo made to appear '. These and similar con.siiierations, and the unceitain sound of an unsu[(ported negative, or of an as.sertion of utter ol)livion on some poij ts and rathe'* vague generalities upon othei-s, aie ill ealculated to rt^ject a charge sworn to 2)ointein>, in order to ins4-. when there is ct»nriictin«jf evidence, and th ' decisioti turns on the credibility of the witnesses, .should j»revail. He .sees the witnes.ses, hears their testimony, ohservdis the way in which they answer (piestions, and is in a iiiueh hetdr position to decide on conHictin;^' e'videnc<' than tliose wliu merely read the .statements of the witncKW's as tliey have been taken down. We are all of oj)inion that we ou^lit not to interfere with the finding of the leaiTied ('hicf Justice as to the matters of fact. It was not urged before the learne*! Cliief Justice that if he came to the conclu.sion that the re.sfK^nflent lunl ottered to make Mrs. Robins a nice present if .she wouM 1S7'). ii.\i;n»\. 291 kci'j) her Imshand t'roii) voting' against him, that this was not liiilii'i-y witliin the nicaninn" of thu statute of this Pro- viiicr, :i2 Vic, cap. 21, sec. (17. Tlic (|m'stion is i-aisetl ht-forc^ tliis coiii't for tlu^ first time: uiul it is coiitciKhMl thcat thciv must hr s(;.iR'thiiiiX iiaiiii'il as thi' present to be ti'iveii, or il will not he a pro- mix' or otter of a ruliinhlr lumsiih ration (within the niean- ini:' of the Act) to Mrs. Rohins to intivr in Parliament " shall directly or indirectly make any inniiiise to yive any money, meat, di'ink, provision, /nrsi ,if, r"';iri/, or entertainment to and for any person having' a Voire in the election, or for the u.se. advantage, heiietit, •JO •I ■- '.kS' !( 11 * A I M i-> Pi I, li 292 PUDVINCIAL ELECTIONS. [a.d. i^ I «K« : ! \ hi: I •< ' eiiiployniont, profit or pret'tMiiient of any such person in order to be elected to serve in Parliament." Our own Con. Stat. Canada, 22 Vic., ca}). (5, sec. 82, provided tliat no candidate' should directly or infliit'ctiy employ any means of corruption hy givinjf any sum of money, office, place, jjrittaUii, rrmnrd, ov any liond, hill or note, or conveyance of land, or miii pronim of the same: nor shall he threaten any tOector witli losinj,' any otlicf. &c., with intent to coi-rupt or l)rihe any elector to votr for such candidate, or /n /.yyy> Jxirh- any elector from votuii,' ; nor shall he supi)oi't or open any house of puhlic enter- tainment for the accomnnjdation of the t^lectois. And it' any rej)resentative retuiued to Parliament is pi-oven ,i,aiilty of using" any of the ahove means to procure his election, his election shall he declared void, anM. Ar H. 27) — " i'e(iuire as gooil > ridrnrx of that promise illrgaliy made, as would be retjuired if tht' pi'omise were a legal one. to .sustain an action by Barlow (the person to whom the promi.se was ma off"ere< was that they hail ac([uireil hy that concession a mhifili/c ciiitsiiliriillnii, capa- hle of lieing lepresented l»y .some money value. Of cituisr I cannot estimate what money value, nor is it necessaiy that I sjioidd do so; it is only necessary that I sliouM arrive at the conclusion that it was money or ///"/;, //.^■ /'•'//•///, ami that the I'cspondent considered that he was parting' with .something;- which was or iniv'ht \\>.' in his hands a source of ,<.;'reat enjoyment or ;i!' . .-. ur otliri- wise, which he oiv(>s uj) to a tenant, au'i i .. ; y destroys the effect of the reseivation inider ^\'liil■' ,i'e tenant was formerly holiling. I cannot lielp thinking', therefore, that it was a concession which liad an apprecial)le valui'. I nuist see tluit in construino' the Act of Parliament inteni' <•• H ,t;"i'iviit ; // /'•"•s not II liijiil i/nni/, hcfansc tliat wuiilil rfi(iiii'c somctliiiii;' iiioro tliaii a |an>l cxjucssion ; //(// ii'hni i>'i' ii/'r ih'iiliiiif ii'illi iiii I'/rr/iiiii ijinslnni, i''i' iiiiisf iliiil ii-illi fill liin/ins uliiili uvi iijipiirrn/, ami which appi'ar ii.iii thi' Act itself. I cannot j^o into any intention of (ill. Dcakin. I nnist !>•■ n-ovrincd hy what he saiil, ami li\ the infei(Miees I ouj^ht to draw fiom ii'/mf he did ami linl lir siiiif ; ami /'// f/ir iii/i'miris ifrin'Ut hy those juTsons /'•i wlio were present, and who lieard I'^/mf In: did mid iHiid he .■ill ill." Heir it will lie (diseived, that even had it not lieen for till' ("i)iiui)t Practices Act, Col. Deakin conld not have 1 11 hy law CitiMpelled to make a It'nal ^rant of the riiilit of killinj;" the lahhits, and could not have l>een sued for any more than the promise made in this case; hut iirvertheless the pi'omise was consideied as iMptally coi- ru]it. Other expressions, I think, wai'rant the conclusion that the ai)])arent mt)tives of the party, and the inference From the Act itself, should influence our decision. My Iti'other Patterson has also drawn my attention to the case of Si„ii).^i),i v. yenid (L. R. 4 Q. B. ()2«). That Wiis an action to recover a ])enalty foi- hi-ihei'v, and it was virtually decided undei' the Imj). Stat. 17 and hs Vic, (■^c- cise words or cvprcssion in ivhich the promise or offer may he conveyed." IS?.-).] MAI/roN. 297 Hfii' wv liavt' no iloultt that the wordH used s I'lttiVINdAI. i;i.i:( TKl.VS. [A.D. ! 1 r:ji: ']' \i i. t i h J ti riiiiimtinii df tlif It-anit'il .luilu't' nvIh» trifd tin- |>ftitioii. it ilcjM'Milfil »llt()«;(.'tll('r oil the crnlit to Im' ^ivt'ii tn wit- nesses who wt'i'f fXiiiiiiiicd licfoic tilt' Juilj^'f ill open coiiit; Hinl tlii'if was, tliricFoic, atfi»i|M»rtiiiiitit's nf olisfr\iiiL; tlif i' i)\' tln' witin'sscs, ami ot' t'oiiiiMi^ a jiiilyiiiriit as ro tlit-ir t nitlit'iiliirss. which this Cuiirt iImcs not |iussrss. It is a |iiiiici|tlc well rstalilishrd in tln' \nn- (•••(hirr of apjti'lhitr tiil»nnals, inciiiilin^ the highest couit ol' the fhipiit' -the House of Lords —that ((llestiolis of faet depending' on tlie vciaeity of witnesses, and the credit tn lie ;;iven to thein, aic concluded liy the tilidilin' <>f the .illduv of the court of tiist instance, in whose preseiict' the testi- mony is ni\-en. This rule was acted on in this court in th- case of S'Hi- tlii'snii V. Iliirdill ( Is (Jr. 417), ami in addition to that case ami the authorities there referred to, I may mention the eases of rniii v. lillihii {\.. R. 2 Ch. App. 127). and Hull v. Ri//{2S I..T. N.S. :}.')()) (/^rv Lord Se|lM)rn<-.(\).and I would also refer to the jildeiuent of Coleridge, •!.. in the case of /.'"/. V. Jiirlnniil ( L, \\. I I'. ( '. ."i.').')), who sjteaks of written a■^ compared with oral e\idence as "the dead Imdy of exiileiice without its sj)irit ; which is sii[)])lie(l wlirii eixcn openly and orally hy the ear and I'Ve of those wIid receive it." Takiiie' the promis'' to he provecl, as found l>y thi' Chief .hlstice, the case of Siiiij>si)ii V. Vrciii/ ( L. II. 4 Q. 1). (i'iti). disco\erev the Chief Justice. M-). II A I, TON. •2!>!» hnrroN. .1. — I fully ('(incur in tin- jiul^nit'iits whicli Ii;i\r ju^t lici'M IHonoilIU'ril. The olllv (litlicillty I liil\t' flit i^ as to wlictllt'r the woids iillfM^ctl to have lircii llscil ciiiiic witliiii tlic (t7tli section : luit wlim one lenanls tlie iiiiscliief wliicli tlie liC^islatuie intemled to (leal with, ami tlir wolds of one own Ipi'i|)i'etation Act, which declares that every Act shall ncfve such fair, larife and lilieral iiite!|»retation as will hest ensure the attaimiieiit of the nlijrct of the Act according to its true intent, meaning and v|iirit, it is ini|M»ssilile. I think, to come to any other con- (lii->iou th.an that this promise comes within it. To hold (itlierwise would open the (luoi' to every kind of iuu'euious t'Mlsioll n\' the Act. Tile Lenislature has eiideavore(l to pu* down an evil which pre\'aile(l to an alarmiui;' extent throu^liout the I'idviiice. and to meet e\'ery possihle case of hrlhery or ether corru]»t practices ; and we are hound, I think, to L;ivi' full etfect to the meaninn' of the lan^uau'e they have employed, without, as e.\presse(l in one of tlu' cases, rais- iiiL;- suhtle distinctions or refinements as to the preci.se \V(i;(|s oi' e\]tfessiou in wliicli the ort"er or pronii.se may he conveyed. A " nice present " must have heeii under- >to(it the respondent, liis lordship arrives at the conclusion that the charge is proved. iC M^l'' ':U It: i^ I* LH -t ••{00 I'ltOVINCIAI- KLKfTloNS. [a.i» f 1 * ' : ' ' ' u. We arc, it is true, to sit in a])|)('»il from ijcfisiniis u|ii>m (jiirstiotis f)t' fact as well as ujton »nit'sti(tiis of law : liut this (Iocs not necessarily mean that we tuv to ci-iticise the oj)inion formet" " money >iv valual)lc consitliTatinn " within the nieanin;^' of section ti? of the statute. This |)oint was taken \>y Mr. Hlake ill his ai'^'unient hefoi-e us, thou;^h not taken hefoic the Cliief .lustice at the trial, an actually di'cided that any offer or pi'omisc which came in (|Ucstion, was not an of'ei- of money (»r \aluahle coir ,sidi'rati(»n, e.\ce[)t the decision in the Kxche(|u»'r C'hamher, in (hiiijirr V. S/(i(/(\ where it was held that Ljivinn' money to a voter to pay his railway fare in ,yoiny' to vote was not Lfivinn' money to induce him to vote. 'I'hat decision was, however, rever.sed in the House of Lords (' II .'}()2 l'H( tVINCI Al, ELECTION'S. [a.d. technical woi-ds, .should not, in construin;.'- the statute, receive the same construction as they would receive with reference to contracts. 'I'he pi'e.sent statute takes tlie place of one in which the Wdiils were ajiparently of a more general cliai-acter, \i/,., (^on. Stat. (Jan., c. (I, s. (S2, where tlie M'ords used wiie " .sum of money, otfices, jilace, enipl(n'in(,>nt,//>v^^/^/('//,77'//(/,y/_ or any l>on- i'ei;ard to tlii.s change in ])hraseology, as well as to the fact that till' woi-ds " valuahle consideration " ]:.'>\(' a recogni/.ed meaning in law, it seeme(l to me that we ou^lit to construe the clause as requiring .sucli a considciation as wouM oi'dinarily support a pi'omise ; and tliat the otter now in (juestion was too indefinite in its charactei- to fnltil that conditio 11. Till- ade(|uacy of the consideration for whicli a promi.se i.s made, is usually not a material inquiry, hecau.se [..iities may agree for M'liat consideration they please ; hut where there is no agreement — ^wliere there i.s merely an un- accepted otter, and the adequacy is not, therefore, setth'il hy consent — it would .seem that a considt'ration which is entirely indetinite is not one which can he called a " vahi- ahje eoiisideratioii, ' as we are accustomeil to use the tei'iii. Thus a promi.se to forhear ",/'"' " '''^''''' ''"'"'," or for "sumr fimi\' is too indetinitt^ to constitute a good consideration for a guaranty (Chitty's C\)nt. 2!), citing 1 Roll. Ahr. 2:{, pi. 2")), which doctrine is approvi^il l»y Bramwell, B., in giv- ing the judgment of himself ami Wat.son, B., in Uhli i^^hair V. Kiiiti (2 H. vV X. .")!)!)), and in the .same ca.se in thr Vl\- checjuer Chamhci' hy Cockhurn, C. J., at ]>. ol!) of the saiiH' \'olume, and it does not seem to he disputed hy any of the .Judges who gave judg'inent ill that ca.se- and in Did'U V. J'xihrr (4 Burr. 2471), a ileclaration in ileI)ton 2 Geo. II. c. 24, which alleged in the words of the statute that the defendant did receive " a gift or reward, " was held hatl in arrest of judgment, for not specifying what particular species of reward was given. This case is cited hy Patteson, .!., in B^ihcr v. liuA' (!.') Q. B. «70), as estah- \\m l.S?.').] H ALTON'. lisliiiii;- tlic position tliat the ili'claratioii iinist stntv th iiuiuis l)y which the voter was coi'ru]ite(i. Thi' rule of construction stated in Lard IfioifiiH/f dii'i r v. Ciri/iiirr ( I B. & C, 297), viz., that " it is not for us to s;iy wliat iiii^'ht lie jioHtically desirahle, liut wliat is tin' ])i'o- vision of tlie Legishituiv, and that in oi'der to answei' that i|iU'stion we umst resort to estahlislied rules for construini^' acts ()V this nature, ' seemed to me to make it [iroper to tnat till' section as I 1 lave indicated an( 1 1 lo not sav tliat that view is incorrect. JUit the jinlyiiifnt of ihi KiiLiMsli Court of ()ueen"s I je-it 1 1 in S, ,nj )Sll/l y I h. h. 4 (.^. B. ()*J()), is so very much in point upon the ciiiiNtruction of tlie Knglisli statute, with wliich ours cm- ivsponds, as in my o[)inion to govern tlif present ca>i'. The promise in tliat case was that the voter wouM he lo uiuiicrated for any loss of time in going to ^•ote, ami there \va> no acceptance of the otier on the ])art of the Noirr. Ir was are'ucd that the promise mnst he of something taiiLiiliie. ami tliat there was no [iromiM- winch, it aeeept Wdll lid, |iuttiiig aside the illegality, lune su[)poited an aciiiiii. le iiul^iiient of the ( "ourt was given l'\' M( lOiV who >ai(l W annot diaihtthat the words adinitti tn lia\c lieeii use(| li\- the (U Teiidant, viz., ' that the xoter Wiilllil he remiiiK rat eil tor wliat loss o tl. )f tin e mmht oecur 'lid. under the ciicumstaiiees. amount to an ■ utiei' or pio- iiiise to proeiire, or endea\'or to procure, money ui- \alii- uMe consideration to a \'oter in order to induce him to V ite (at the election in i|ne,>tiiiii !!",uieration for loss of time le e.\l)ressioll re would m-cessarilv c()n\e\- the ap])rehension of the voter, that if he would \ote f( a paiticular candii lat( he should lecei\-c, either direcliv lioiii the person oH'eriiig, or hy his pi'ocui'einent. money nr valuahle consideration w hicl 1 lie would not otlierw l^e nhtaill ai id any assurance of that kind, which can he so nndei'stood, is calculated to operate on the mind of the elector as a, direct inducement to vote for such can- 'lidate." If any autliority were recjuired to induce us to adopt this view of the transaction in the present case, it I! 11 .1' 304 PKOVIXCIAL ELECTIONS. si ! ■ iiiU [XA, is suj)j)Iit;(l l)y that of Cooper v. Shnli (<; }I. L. (' 741;, wliicli U[)r>rtaiit to the puhlic interest that electors sliouM he h;ft i'lfn to vote without any inn' influence of any kind, that we f»;."l our- selves Ijound, m consti'uin<^ thestatut*,' in v; dv offer may he conveyed. I ai;ree that the Judgment shouM Ix' affirmed. (1) Jo'iriiiil L&jis. Assfm., lH7')-('), p. M.) H- NORTH OXTARIO. T'^'r Before Mh. Jlstk'E Wilson. Wimiiv, l.!//i to 15th Mdij, mul Mh .luw, JH75. Before the Cotrt of Ai'I'E.vl. ToEtoNTo, imh, nth { ott' their coats and talked of lighting. A treat was j)ropo»4rfh his au'ents, 1 shall dispose first of the cliarges of ti'eatino-, hegiunino- with that which is contained under head of innuhei- four. i I ,• !' i' -' i 3 3. J ., ^ .r™ 1 i \U)Ui illv J ■|-' 306 I'ltuVINCIAL KI.KrnoNS. [A- Nuinltcr four relates to the act of .Jaiiies P. Foley. 1 nuiv say at the outset I Hud him to have heeii a n'eueral accent of the lespoudent. auec)ple soon (piietecl after that. As Patei'son was speaking-, Donald Bruce, a sup])orter of tlw res[)ondent, called oul "that's a lie," and a ^'i-neral call was made to turn Bruce out, ami he was thrust out. aii'i shoved down upon the ground. Those af the meetiiiu then jumped up anil talked of tin'htini;', and there was a o'reat disturUance, and a, L;eneral rush to the <|(ior. aii'l parties lii'^'an [)ullini;' otf tln'ir coats, 'i'he mcftiuu' was l)roken U]). ( 'hi'istt)pher Moore said it was aliout ten at nio'ht when he y-ot to the meetino'. When he was within 7") yards of it he heard an awful noise. He tried to i^vi in, and was told not to u'o in, he wouhl i;et killed. TIi'Tc was no meeting;' there; it was liiihtini;'. He then pio- cecdeil : " I i^'ot on a hencli and called to the people to coiac to me ; that it was a shame to fight for Paxton ami McCrac, who would not tight for them ; that it was fai- Ki'tter te VPPiiPi is?.').] NORTH ONTAHID. 307 sliakf liiimls, liiive a tlriiik, ami r and for treating; that was the pi-in- eipal sum \ paid; hut I spent ,sonu' smaller sums." The meeting at Birney's was lii'oken n\>, and parties had left the I'oo.ii. Thi' row continued aftei' the meeting was over, and it was then proposed to treat all h.ands, to i|uiet the people, as is usual on such occasions. It was net done to proiuote the election; holh parties drank. Mmnv .said to the people if they would hold their tongues ami vot(> f(^i' him lie would treat them all; and he did. That was to uwike peace. The crowd (piieted down, and dwindled away. I think it would he (piite unreasonahle to say that tho treating at that time, and under the circumstances, hy Foley, the agent of tho respondent, was a treating of a "meeting of electors as.soudjlod for the pur[)oso of 21 ('. .3 Jill « V *,i ■■■: ^■*^..^^^'<^'a»; 308 PROVINCIAL ELECTIONS. [a.d. promoting hucI'. election." It was done for a dift'erent purpose, and participated in by both parties, to restore luinnony and to induce tlie people to go home (juietly ; and it fully answered the pui'pose, and prevented blood- shed, and it may be — for no one can tell to what extent the violence of e.xcited men may be carried — it may have saved life also. It was no more a violation of the statute than the im- promptu suggestion of the successful candidate to give a glass of chamimgne to his supporters in place of having a public procession, which he feai'e(l might lead to a dis- tm-bance, and giving it to about 200 of his friends, was a violation of the statute in the Hiit/(lrrty anybody to avoid tlie election. What F^axton said about not wanting' any- thin",' done to avoid the election was said to seven or fight of lis." That is liis evidence, excepting as to what lias lici'n given ali'eady relating to Wliaren's vote. Charles Robinson .said he was the pi'csident of the Re- form Association at wliich Mr. Paxton was nominated. He thought it was probable a resolution was passed to support Ml'. Paxton. Tt was understood all parties would support him, but \\k\ was not sure tliei-e was any residu- tion. There was a branch of tlie Association in Tliorah, and lie thought a special coiiiniittee was appointed in the township for election purposes. He attended some of the meetings. Thinks he saw Bruce at two of its ineeting.s. Couhl not say if Paxton knew there was a committee in Thorah. That committee looked over votiTs' lists, and got the views of parties as to how they would vote. It is likely Bruce talked of such matters, but could not say he did. He would be likely to have something to say of such matters, Bruce is active; some say more active than discreet. The Thorah committee was a volun- tary committee of Reformers. It was made up by the Reformers for their own purposes. Paxton had notllill^• to ilo with appointing it. I attended the meetings !\s a friend of the cause. Paxton had nothing to do with the committees. He hidd public meetings, and canva.ssed the electors at these meetings by his .speeches. I know of no connection lU'Uce had with the election, excepting that he was a volunteer, and worked for the cause. Adam Gordon said, " Mr. Paxton took all opportunities, whenever it could properly be brought up, to caution people not to violate the law. I did so for him particularly ls7.'..l NORTH ON'TARIO. 'M'.\ lit tlif convi'iition which chdsc him, that in ^jovci'iiiiiLr tlnir siili-('(nniiiitt('t's they shinild he can'ful to sec that thi' ili'ftii)M was cai ricil oil pi-opcrly, aii"! that no rash tVirnils shouhl eetin!>-s in Thorah, Imt he was not a memher of the com- iiiittee. Mr. Rohinson says Biaice would he likely to talk of the work at the connnittee-room. Paxton knew Biuce was woi'king in the cause, and was a sujiporter of his, and that he was working for him too. Bruce did not canvass with Paxton, an). Asupportei gave a puV)lic l)reakfast on polling day. He provided vehicles to carry voters to the poll. The candi- date, on election day, wrote and thanked him for what liu had done. Held, that went a long way t(^ estaVtlish agency ; hut it was not conclusive. Hercjord ac^c (21 L. T. N. S. 117). It was also shown that the same supporter was seen canvassing with A., a recognized agent of the cundi- tlate. Held, that that additituial fact, with the othei- acts ahove mentioned, was not conclu.'^ive proof of agency. But it was furthei' proved that the connnittee-men had hi'(mgiit voters to the breakfast, and that A., the recognizeil agent, had spokeii of the suppcn'ter, after the election, as havinn' done much gotxl service. Held, that all these acts together so connected the suppoi'ter with the candidate as to 'li^ke the one liable for the acts of the other (s. c, 1 O'M. tjc H. l!)4). Employing a person to act for the candidate on the candidate putting himself to some extent in the hands of that person, or the candidate allowing that person to make connnon cause with him to promote the election, is evi- dence of agency. Taunton case (2 O'M. & H. (iO). ls7o.] NORTH ONTARIO. 317 A person upon a conunittuc, but not shown liow lie y-ot tlu'if or what he was to do, wl\o wrote a letter otleriny; to pay the voters' travelling expenses, wa.-^ hel-i not to be an au'ent. The Judge, Braniwell, B., said : " If we were to hold this man to be an agent it would make the law of agency, as applicable to candidates, positively hateful and hidicrous." irauhoj- case (2 O'M. & H. 8s', -SI L. T. N. S. 133). In the following case the same Judge said : " Mr. Dawson attended the respondent's committee, he saiil as many as twenty times. He was also present at the connnittee, and on the day on which he bribed the voter lir was busy in getting up voters who re(iuir(.'d particular atti'iition. I shouM have thought that itself was ent)Ugh, if lie was to use anything, either solicitation or persuasion, t(» them." But not if he weiv only to bi'ing them up and to use no influence with them. Durham eusc (2 ()"M.»Sc li. 134). A candidate will not always be answerable if he accept the services of a volunteer. Stalrijhriihjr I't/xc (20 L. '\\ N. S. 7.")). A candidate is not obliged to repudiate volun- teer services (s. c, 1 Oil. *.<: H. 70); Tdunfou rase (2 O'M. \' H. > afterwards used ill ])Vom()tiiig tlie election. The cominittee of the society directed in a , O'Brien, J., .said: "I cannot concur in the opini(^n that any suppoilcr i»i' a candidate, who choo.ses to ask otheis for tlicir- votes and tu make speeches in his favor, can foj'ce himself upon the candiilate as an agent, or that a candidal*- sliould he lield responsible for the acts of one fiom whom he actually endeavoi-s to dissociate himself." In the Nor/o/k ease {1 O'M. Ar H. 230) a landloid was asked 1)y the candidate's agent to he one of the connnittee. He declined, hut said he wouM answer for his tenants; he spoke to them and re|)orted tlx,' re.sult. Held, he was an agent as to them. Biackhui'n, J,, said : " 'I'hc nal goveining point was that he was put forwaid and con- sented to be the pei'son ujioii whom th»,'y rfM»;d to ^et those votes." The landlord had not in that v'-ase- u.sed any innlue inrtuence. The following cases relate more paiticularly to ''oni- mittees or similar organizations. In the iri:s(,n/iisf(r ais,' (I 0.\1. a: H. '.)'!) Martin, B., dertned a connnittee to be a limited numUrr of persons in whom faith and confidence wci-e placed by a caiididatc and Itetween whom there was somt.' pj'ivacy. Tin- same idea is a little ditt'ei-ently e.\))ressed in th«.- same casr, in 20 L. T. N. S. 238. In the Sfalei/bridiji' casr (1 O'M. A: H. 70;, Blackburn, J., said: "Asa general proposition, that li.r., a person em- ployed by the candidate to canvass and jret a vote was an agent) would go a great way towards saying wlio is an agent ; but 1 don't think we can take it as an absolute hard and fast nde on which we can .say that whenever a case of corruption has been brought home to a person who was 1S7.3.] NORTH ONTARIO. 819 within tliis limit, the seat should he vacated. The eti'eet of that would l)e to say that whenever thei-e were volunteers wlio were acting' at all, and whose voluntaiy acting was not repudiated by the candidate or his agents— whenevei', intact, a person came forward and said, ' I will act for you and endeav(.)r to assist you,' and tlie candidate or liis agent said, ' I am veiy nmch ohliged to you, sir' — any corrupt or inqn'oper act done by that volunteer, although unconnected with tlu^ member, would render the el(!ctii)n void. To lay down such hard and fast rules as that would at times work great injustice. At present J cannot go farther than to say that each case must be consicU'red upon tln' whole facts taken togetliei', and it must be e responsihic for their acts. The candidate may show that the hodv was acting ofHciously for him, as I may call it ; that it was not with his consent, and was against his will ; hut the presumption does ari.se, I think, that it was done in his favor — done for lum, unless there was something to '^how the contrary. [ think in this ease such a de-gree of < 'eiu'tit would he derived from their assistance — that their assistance was so imi)ortant to the candidate — that it fail '; stalilished this, that if he took their assistance, and did I'o', h' id them otf'or repudiate them, he imisl ake the consequences, and he responsible for their malpractices.' In the Tunnton case (l O'Al. & H. IcSo), Mr Justice Blackburn said: "I tliink all one can do is this, to say that whenever a pei'son is in any way allowed l)y tlic candidate, or has the candidate's sanction to tiy to carry on liis election and to act for him, that is some evidence to show that he is his agent." In the Galwrqi cane (-2 O'M. Si H. 19!)), M>. Justice Law.son said : " I think Mr. Justice Grove has <«'iven an admii'able definition of it in a late case, in which lu.' says the caiididate is responsiltle, generally, for all those who, to his knowledge, carried on the purpose of pi-omoting his election." In lookinu" over the difle'rent cases to which 1 have referred, it appears to me that the S/a/e)/brid(/e ease { 1 O'M. & H. ()()) and the Teuintoii case (I O'M. & H. 181) are very seriously opposed the one to the otlier. The former exempts the candidate from all responsi- bility for the acts of 2)ersons or connnittees whom he does not appoint, and who act voluntarily for him, even although he knows they are acting for him, and he receives their services, and it holds that he is in no case MfcM, lM7.-i.] XOIITH ONTAUIO. ii2:\ bouml to i-opudiate them. The latter case is(iuit(> opposed to it, because it is based ui)()u this, tliat if tl\e canic, and iiKpiiri; whether the candi(hite or his agent did employ the person whose comhict is impugned to act on his behalf, or did to some extent put himself in such person's hands, onlid make common cause with him for the jnirpose of promoting the election ; and in the Wah'ildd cn^: (2 ()"M. k, H. 200), when the same learned -bidge uses the like language of the candidate placing himself or allowing himself to be in tlie hands of certain persons, or making common cause with them. And I think I ought to adopt tlu; I'uling of Mr. Justict; Blacklnirn in the Tttunfoii r-usc, in detei'mininn the debtors of the respondent and receiving payment fioni them of their accounts, and the respondent became awaiv of it, and told him to be careful he did not do anything; to his, the respondent's, prejudice while he was so acting, could it be said, although in one sense Mr. Bruce lui^lit be called a volunteer, that Mr. Paxton was not bounect to Wharen was com- mitted after all the above acts he had (hme for tlie respondent, and after his conversation Avith him, for the Ics?:..] NORTH ONTAUIO. 825 interview witli Wharon was on the iiiornin<,' of tlie polling; diiv. I aiu also ot" opinion that Thorali township connnittee must be considered to have been the aj^ents ot" tlie respond- ent for tlie pui'poses of the election. The reasons I came to that conclusion are liefore fully set out. I must assume the i-espondent, as well as his n,L!;i'nt, Mr. Card, knew of the Port Pei'ry connnittee, aniU! tiiiiu of the election. Marsh said he would <^o down and soo Paxton, and he did, and he brought me a note sinjued hy Paxton for SI 10. I gave the note to Mr. Billings of Port Perry to collect, foi- it was not i)aid when it was due. Marsh, on the Saturday before the polling day, showed me the note he had got for me, and I toKl him to give it to Ml-. Billings at Poi't Perry. Then he said that Tom (Paxton) had been a good friend to me, and it was too bad he anil 1 shotild (piarrel. 1 told Marsh we would I'n the best we could for Paxton at the election. It was about five years ago I sold the wheat to Marsh and Trounce, and I had been trying ever since then to get a settlement. 1 had two sons wdio had votes, and that is what I meant by wc would do all w^e could for him. I had not the team out. We all voted. It is now said there arc $200 an-earsof rent against me; but there are no such a. jcars. The note is not })ai(l. 1 should not have voted for Paxton if I had not got the note, nor would I have voted for AIcRae either." ISj.").] NOKTII oNTAHiO. :{2(l Cross-rxHiiiiiiutioii : "I iI'kI nut tril Mai'sli tliiit il' I ndent, was also examined. He was said to have heen the chairman of the committee in the respondent's int^-rest at Port Pcny. He boiiu'lft the land about two vears &'jo from Paxton, which Paxton had rented to Hope. TJie rent was SoOi) a year. Bigelow did not let Hope know when he bouiilit tlie place, and wdien he did, and applie-d for the icnt, Hope said he had paid 8200 of it to Paxton. Bigelow said that would be all right, and he t^o'ok Hope's note for the remainder, 8300, of that year's rent. The Saturday before this trial he made a claim on Hope for the 8200 of rent referred to, and of a ncote for 81 1(; he held against Hope, and he said he had concluded to put them in .snit. He continued: "I said I was satisH<;d lie owed the lent. and I was determined to collect it. He said, I would if [ could; he said it would be wors<; for Paxton if it was not settled as he wanted ; that lie would do all lie could in the election suit. I sail also that Mr. Shaw aided actively in promoting the election, and to the personal knowledge of the respondent, and that he and Marsh were agents, or sul)-agents at least, of the re- spondent, for whom and foi- whose acts he was and is i'es])()nsible. I am of opinie accounted for, that be- tween Mr. Bigelow and Mr. Hope. Mr. Bigelow^ says that H(ii)c said if his claim was not settled it wouM be worse fo!' Mr. Paxton — that he, Hojie, would do all he could against him at the election trial ; while Hope says that it was Mi\ Bigelow who said that if he, Hope, came down to the trial it wouM be worse for him. The facts are that on the Saturday before the ti'ial Hope ami Bigelow had a conver.sation, anan to press Paxton for payment of the note for SllO, which Marsh got for him just before tin; election, and probably he thought the claim for rent was set up to overreach his claim upon the n(jte. It was upon tliat Saturday liefore the trial that Mr. Big'elow, the business partner of the respondent, declaroil to Hope he had concluded to put the rent (as well as the note for i?l Hi, which is not in dispute) in suit, and at that time Mr. Bigelow knew that Hope was reijuired to attend this trial as a witness. I think it is somewliat suspicious that Mr. Bigelow, the business partner of the respondent, at such a time should tell (I do not say tlireaten) Hope, a witness upon the tiial against his partner, that he would sue him for a large claim of rent, which lie, Bigelow, had himself settled for in full with Ho[)e many months before that time, and 1 confess, if I am obliged to say whether it was Hope who threatened Bigelow it would lie the worse for Pa.xtoii if his, Hope's, claim were not settled, or Bigelow who threatened Hope it would be worse for Hope if he, Hope, came down to give evidence against Paxton, that I shall hold thei'e is ([uite as nuich, and perhaps moi"e, reason for l)elieving that Mr. Bigelow, who was advancing such a claim at such a time, and with a knowledge of Hope's position as a witness at that time, was the person who made the threat as oi- than that Hope was the one who made it. I can see that Hope might have made it because of the claim, which he believed to be an unjust one, then made up(jn him, and as a mode of getting rid of it. There are views in favor of each of these tAVO parties; l)ut most assuredly it is not for what Mr. Bigelow has said that 1 should discredit or disbelieve Mr. Hope. 1875.] NORTH ONTARIO. 3:J7 The result of my exaininatioii of the ca.se is that upon all the charj^'es above stated, excepting the secontl and third, the evidence has not been suificient to maintain them. I find also that the t\V(j charges with i-espect to the alU'ire.] NORTH ONTARIO. IV^O BriiToN', J. — This case comes up hy way of api)eal and cioss appeal from the ju(l<,niient of Air. Justice Wilson. On the appeal Uvo questions are raised : 1st. Whether the I'espondent, through Donahl Bruce, Ills a^ent, exercised undue influence on one Geor<,fe Wharen, it voter; an'uilty of hrihinijone Thomas Hoiie through Charles Mai'sh, an agent. The lespondent conteiuls that in neithei- case was agency estiihlished, and that, assuming the agency to be estab- lished, the act com])laineil of in the first of the two charges was not within the 72nd section of the Eh_'ction Law of 1J ' i ■ ( M llu 4 ! : I J > ■♦■■: n 34(1 I'KOVIXCIAL KI-KCTIOXS. [A.I.. carried on contrary to wliat tlu' prinfipk; of tlu- law i^. Bnt it is not shown in this case that any sncli ^cutial l)ractic(' prevailtMl ; and tlic (|U('stiun here- is whttlni, assnniin^' tlic agency to In- cstalilishcd, thi' act was one df nn not intimidate(l, although that might not he material if what is alleged to have occurred amounted to a thicat within the statute: hut the words, as it seems to me, were at most hut an expi-ession of opinion upon a suhject on which every one was competent to form his own judguient. Speaking for myself only, I am of opinion that it was not an act of intimidation or undue influence within the I'lnA section. But it is unnecessary to decide the (juestiou, as we are all agreed that the other charge is fully sustaineil. It was contended that as there was an actual legal deht, Marsh was merely carrying out what he was bound hy law to ilo, and that his motive could not he incpiired into. IN?.').] NORTH ONTAIUO, 341 T am not a\vjt'et liiiu to sui!li hii^-hly [x-iial cijiisctiut'iicfs as woultl follow an adviTsu tle(jisit)n u[)oii such t.'vidciu'f, \\\; SL'u no f^rtauid whatever for ilirt'erin.n" from that view. Upon tht} secoml point, the only evidenci' to show Paxton's connection with tht; transaction is that of Marsh. whtj, aftei' refei-rin^,' tt) the convi'rsatit)n with Ho|)t', says: " In tlie forepart t)f the following- week I saw Mi'. I'axtoii, antl tohl him what Ho[)e had saitl abt)ut puttiiii;' uic b> costs, and I said I wished he woultl st^ttle it, to save iiu' heinj;,' sued. I tliil not tell him of Ho|)e's i-eiMark a-i to votiny; ; Paxton said he calculated tt) settle it, anil would if he knew the amount. I saitl it was altout 8110, ami he then tjavc the note." I am veiy far from sayinn' that the case is not one of grave suspicion; hut there is no reason, that 1 am aware of, wliy the general maxim shoiiltlnot apply, that in penal statutes tpiestions of tlouht are to he construeil favorahly to the accuseil; ami although it may be said that the party chargeil here had an o])i)ortnnity of purging himself hy his own oath, if he chose to take tht; ;iitUi ' 'tat ihe charge was not proveil, ami that 1 not calhd upon to tlisprovi! it, it was coinpetei iiim tt> tlo >, sub- jecting himself to the risk of ha\ : his omission to do so eomuicntetl upon by the tjpposing coun.se' No doubt, the most was made of that omission, and the learned Juilge, sitting .also as a jury, has come to the conclusion that the evitlence was not sufficient to sati.sfy him that tlit; charge was brought home to the respondent, and he has actpiitte'l him of all knowledge of or participation in it. It would l»e ' I- ; . 1n7.>.] XOHTII WKNTWnirni. ;u:? t(M) iiiuc'li ill a (|uasi criniiiial case tt) usU us, uiiilcr tlicso circunistaiiccs, to ifvcisc liis liiidiiiH'. It !■< not lu'cossary to otl'fi' any opinion upon the Foley (•n-.i', as the ehart,')' if (■♦italilishcil niciciy hix-s t(» uvoiil the tl.clion, liut we may say tliat the evidence does not satisfy 11^ that he was an aj^ent at tin funr of tlit,' aUej/eil ti'eatin;,'. (!> Jiinni'il L'l/ls. vl.s.s>'//(., ls7.')-(), p. 14.) NORTH WKNTWORTll. Bkhihk Chikf Jtstice Duai'EU. H.win.roN, /.''//( ami Jni/i Mii/, is;.',. Bi:i'(HtK Till-: Corirr (»!•• Ai'I'kal. TiiltosTu, /'/■/// ami .J'ltli Si iiti'inlx i\ IS !'.'>. Roiu:ktCiiiustie, Pdifiourr, v. TnoM vs Stock, Rcsjioadijif. Vom.iiil/''"< -A'/i iic'i — TrmtiHij mi /loUiiui ihiii — ('umiji/ praii'ii'i' iri/li Iti- .ijiiDiilint'ii kiimi'liiliji mill I'oiifiiif — /,.' I'"'., I'li/i. ./, •'<"'. '/'' ; -i'l \'i"., I'li/i. .', .s'V'.s, / mill .1, Alimit ;i ilo/cii of tlic clci'tors iiu't Home tiiiio Iti'fort' t\w ulootioii and iioiiiiii;itfcl tlic rc'siioiiiU'iit JiH tlif ciiiididiiti' who should contest tlie ilci-tion ill tlie iiiteii'st of tliu politiciil lifirty to whicli they liidonj.'i'd. Till' ifspondi'nt lU'L'i'ptud and acted upon tlic noinination. 'I'hcy mot 01 ciisioiially foe the piu'iiose of promoting' the respondent's election, ]ii(i(iinil Voters' lists, canvassed voters, and gut reports on which they estimated their cliances of success. //■/(/, that if they did not style themselves a committeo, tliey had assumed the fiiiictioiis whicli usually devolve upon sucli hodios. On the pulling day. and during the hours oi polling, tiie respondent drove up to a tavern at C, where he iii(;t oiu^ S., a memlier of the attove- iiiciitioiied committee, and aildressing him or the asseinhled pe()j)le, said, " Hoys, tliis is the first time I came to (,'. wlieii 1 dare not treat, and some one will have to treat me." S. rejilied tliat lie would treat, and, with tiie responileiit and 'M) or .")(> people, went into the tavern, where S. treated some of the people, and the respondent drani< with tile rest. //'.'/, 1. Tiiat going into the tavern for tiie pur)toses of the treat, when tile law directed that such tavern should he kept closed, and joining ill and accepting such treat, was a literal as well as a substantial viola- tion of the law, and a corrupt practice. -. That the concurrence of the respondent in the commission of such corrupt practice made him liable to the disullivan or tlic assembled people, said, " Soys, this is the first time I canio to Carlisle when I dare not treat, and .some one will have to treat me." Sullivan said he would treat, and with the I'espondent and a number of people went into the tavern, and while there Sullivan treated .some of the people ; tlie res]iondent drank with the re.st. Mr. Bcthunc, for petitioner, contended that Sullivan was an agent of the respondent, and that his treating on poll- ing day was a coiTupt practice; and the respondent, being present and partaking of the lic^uor, was a consenting party to the infringement of the law. Under the presejit law, if a candidate is a consenting party to a 1 reach of the law, agency need not be proved. Mr. Thus. RoJ)crfso)i, Q.C., for respondent, contended that the responde.i.t did nothing but partake of refreshment, and that act is not brought within the deiiniticm of a cor- rupt ])i'actice. There was no proof of Sullivan's being an agent of the respondent ; in fact, he was not an agent, nor v/as he a mend)er of the Conservative Association, hy whom the respondent was l)rought out ; nor was theie any charge in the particulars of Sullivan's being guilty of a breach of .sec. ()6 of the Election Law of 1808. DiiAFEii, C. J. A. — In the interval between the a<,'in;x void, he shall, ilurinii- the eight years next after the ftj, makes things prohibited cori-upt pra^;tic*;s ; and the thinl, in its first branch, avoids the eh'ctionof a candidate fouiiil guilty of such corrupt practice, and. by t)ie second braucli, superadth particulais. Davidson's hotel was not k(;pt cios«;ing outside the hotel, he .saw respondent drivo up. that respondent, ad- dres.sing Sullivan or the peoph' asseiiibhrd, .said soniethinii; to this ert'ect: "Boys, this is the tir^t tiiiif I came to Cai'lisle when I dai'e not treat, and situu: one- will have to treat me;" and Sullivan said he would trt;at, and, with respondent, went into the house, followed by a number of persons, variously estimated at from -JO to 50. Several of them (hunk, the respondent taking a glass of V^eer. Surely no one can doubt that thes<- facts constituted a breach of see. 60, and under the sul/s».-quent Act of the 1875.] NORTH WENTWOHTH. 347 Lt'f,nslature such breacli was a corrupt practice. Tlu' \v- sponlic use of all comers. It might perhaps not be easy to bring such conduct within the grasp of the law as l)rihery, or to connect the person with a canditilldo not think he would tlu'rehy make them his a^'ents, lait it would he most ditHcult not to hold that thei'ei'ore the ciirruiil practice, which is un •-T IS?:..] XOIJTH WEXTWOHTir. .S.').-) ii (.'anili'lfitt', wlut, U|»()ii the cN'Mlfiici', apiicurs to Iimac liccii an\ii)Us to coinluct the flection fairly mikI in Hccordaiict' with law. 'I'lic Ii('<^'i.slatiirc proKalily nc\iT ('oiitcni|ilatf-M(!Ction declares that tlieelertioli sliouM he avoiili^l J())' (1)11/ cori'ii/if /ii'i'r/icr riiniiiiiffi'i/ lii/ tin niati iilitif hl.msilf nr his iii/v)i/; ami thai the liiwl suli-sectinii imposes, in nilililinii to the avo'ulaiiees so ileclared l>y the 1st sul)-se('tioti, dis- (|Ualili('atioii when llie eorniiit act which so nxoids ilic election is done liy i>r with the kiiowledn'*' and con^rnt of the candidate; Imt the ai'n'iniient is, to my mind, mmv in- lienious than sound. Under the 4(ith section of the Act of Is7l, any corrupt ))ractice committed hy tlie candidate, oi' with his kiiow- ieilu'e and consent, av(»ids the election, ami disipiahties tjic candidate; hut no pro\ision is t]ierel)y made with retVr- ence to corrupt practices hy agents witliout the candidate's kiiowdedn'c; lait the repealing Act of INJ-S, as I read it, in (lie 1st suli-si'ction avoiils the eh-ction foi- any c()iiii|it practices eitlu'r liy the candidate '•/• ///s "//(///, wlietlin' such act of the aei-nt was conunitteil with or witJKJUt his knowled;4'e. And then the 2nd suh-suction declares tliat if ''////corrupt ]tractice — not .s/"// cori'Upt [)ractice as under the 1st suli- si'ction would avoifl the election, liut any coi'ru|)t practice- has lieen committed hy (the candiilate) or with the kiiow- ledp' and consent of the candidate — then, in iidditimi tn the aNoidinu;' of the election (if he has heell elect<(l ), li,' shall Ite .suhject to the dis(pialilication mentioned in that suh-section. To ,:;ive etf'ect to the contention of the appellant, we should have to read the suit-section as if tlie woi'ds " the candidate" were inserted afti-i' " l»y,"' and the words " hi,s aj;'ent " aftei' "or," .so as to i\'ad, "any cori'U[)t [traeticc has heen connuitted hy the candidate or Ins agent with the knowledge aiul con.sent of the candidate." But why should we he called upon to take any such liherty with the plain language of the section, apart from the di.squa- litication. There is nnich good sen.se in tlie Legislature declaring that a tavern-keeper .shall keep Ins har closed, and shall he suliject to a penalty for not doiiig so, and mm mm |N7.). Noicni \vi:n ruoiri'ii. :{:,7 iliat n ciUKliilutc who nieoiirjiycs liiiii to lircuk tin- l.-iw >li;ill tln'ifliy a\(iiil his I'Icction. ThciT iiiv iimiiy dthci' coiTiipi prjicticcs, litvsidcs the viulatioii (»r the (Mith scctidii, which would not, uiilos.s coiiiiiiittctl hy fill ni^i'Mt, avoid the t'h'ctioii ; and yet it is iiiiiiiit't'st that il' they were doiii' with the l and (niisi'iit of the candidate, they would — and rightly so — liiiM' that ctt'cct, and would also havi! the I'tl'ect oF dis- (Hialit'yin,n' him. IJesidcs, tile 2nd suli-section is not confined to the candi- date /'V/o/^'/.s/xv^/ '/"7«r/, l^uta])[)li(^s e(|Ually to the del'eated candidate, who, it' I'ound to have liecn an asseiitinn' ])ai'ty to this or any pVactice declare([ hy the statute ti) he Cnl'i'Upt, is reuijel'eil inelii^'lhle to l)e electe(l, aiul to the iitliei' disi|uali(ications mentioned in the statute. The conu[)t [)ractice in tliis case was admittedly com- iiiirteij l.y Davidson, and was so committed with the actual knowledge and consent of Mr. Stock ; and uid<'ss we are to import words into the 2n. •><) \'ie., cap. 2, sec. I. There is MO (haiht that this cori'U[)l [)ractice was committed hy Davidson wi^li the actual knowdedge and consent of the appellant, w'i;o was one of those wdio I'eceived the li([Uor or drink, wdiether lie invited the others in and treated them, as .some witnesses say, or was treated hini- ii i m. ;3r)S I'JIUVINXM A I, ELKCTM »NS. [.U, self al()ii<4' with tlic others liy Stil'ivan, us it is put liy Sullivan, and l)y the a])pellant liiuiselt". The (|Uesti()ii is whether, uinh'r these facts, tlie ap])cl- hiiit's election is a\'oi»7-i ; or that while a new uround for avoidiiiLi,- an elec- tinii wasaily the candi- date's consent the volunteer l>econie?* ^'d hnc an agenf so doe the tavern-keeper. The contention is founded on the ansuinption that the words in su')-sec. 2, "in addition to his election, if lie lias heen elected, heing V(jid," -sec, 1, as he has not been elected : and wlien w*; siinj)ly omit from suit-sec. 2 the woi'ds which • [x.-rfectly applicable to him. There is no doubt of his ^^iting into sub-section 2, woids which cannot Ite s'; intr'/! iliilati' ii'hn liiifi hd'ii iJrrfii], or l.y liis a^fiit, whotlier with or without the actual kuuwlcclui' or consriit ot" such caii- lUdate, the election of sufh (candidate shall he void," which ill no way chani^es the i-tiect of the suh-section : while, as it sieins to nie, it removes any pretence for niodifyini^f the readini:,' of the second suh-section hy any refei'eiice to the first, at all events as fai' as the ilefeated candidate is ('(iiUTi'neil. Then, is a defeated can iiica])ahlc not only of " hein;^' elected to," I tut "of siffinn ill, the Le_n'islativ(.' Assemhly" "fhu'inn' the eit,;ht years next after tiie date of his heiug so found n'uilty "' — Ji provision which of itself vacates the seat without the aid of the precediu:^' pai't of the suh-section. 1 ilo ihit, howevi'r, see any necessity for resortinij," \ .) any suhtlety of consti'uction. The plain words of the .section lire, in my opinion, easily intellie-iltle as they stand — the natural meaning- liein;;' that a camlidate, if elected, .shall liise his seat in ca.se a Judge re))(a-ts that any corrupt pi'actice lias heen connnitted hy him or his agent: that if acan(li(hate connnits oi-cons-nts t-) the connuission of any corru[)t practice, lie sliall he suhject to the penal dis(|uali- rications, wliich, if he has heen elected, include, hut are not coiitined to. the vacation of his .seat. Appeal di.smis.sed with costs. ('.I JuiirmU Ltyis. A-ssiia., lcS7.")-n, p. 12). n^ i i s ■ I- m-z I'HOVINCIAI. ELECTIONS. NORTH GREY [A,D. Before Mij. .Jistice (Jwvnxe. OwKN Sursii, JUtli Jinn aihl Unl Jnhi, /,S7,J. Before the Coii{t of Aim'eal. Toronto, ISIh and J'lth Scptcmhcr, IS?^. Thomas Boahdmax, Pditiourr, v. Th(j.mas Scott, luspmiifr/if. Poli/ir((/ ii.f.-iociiifioii — Aijiiicji — )'.' V'ir., cii/i. ..'J, sir.'!. i;i-r,i; — Trmfiii'i a mii-fiiii/ of i'/irtor.-< — Trcathuj (lunnij poUhiij hovrf. Till! fact of a political association putting forward ami supporting- a jiar- ticular camlidatc docs not make every nicnil>cr of the association his ayunt ; but the candidate; may so avail himself of their services in can- vassing for him and pronioti:ig his I'lection, as to make tlicni iiis agt^nts. One W., a niemhei' of a political association, tieatcd the nienihers of tlio association piescnt at a meeting in a tavern. I/i'li/, Tliat the mendicrs so present were electors assend)led to ])roi;iiitc the election of the respondent within s. til of the Election Law of iSliS, and that such treating was a corrupt ])ractice hy ^^'. One .\L, tile reeve of a township, exerted liiniself strongly in favor of the res]ioiident, to whom he was )>olitically oppo.scd, and against tlic other caiiilidate, anil attended meetings where tin; respondent was, and spoke in his favor. The reason for his supporting the respondent and opposing tlie other (ministerial) t'andidate. with whom he was poli- tically in accord, was, that the ministry of the day had sejiarated tlie to., iisliip of whii'li in; was I'eeve from the Riding. He\\as annoyiil and indignant at this separation, and announced his intention of using all his intluence against tlie ministerial candidate. The respondent asked M. to atieiid a public meeting, which he did ; and at aiiotlicr meeting which he attended, M. stateii (hut not in the respoinleiit's hearing) that he was acting there on the respondent's behalf M. wa.s once in the rcsjiondent's committee-room, and signed aud oirculateil circulars issued by the respcnidcnt's frieinl:. Hi'lil, That the ipiestion of agency l)eiiig one of intent, the respondent, under the circumstances, never conferred upon M. the authority, nor did M. accept the delegation, of an agent for tlie piuposes of the election. The respondent, iluring polling hours on the polling day, met one P., a supporter of the ojiposing candidate, and told him he would like a drink: and both of them, not thinking it illegal, went to a tavern, and the bar being closed, P. treatcil the respondent in the hall of the tavern. //'/(/ by the Cinirt of Appeal (reversing iliriitiin-, d.). That the receiving of a treat by the respondent during the hours of polling was a corrupt practice and axoided the election, Simhh-, jtir (liriiinii-, .1., that as to the seller or giver of the treat, the only person liable to the penalty of .^100 would be the tavern-keeper, as the statute does not authorize two (leiialties for the same act. The petition coiitaiueil the usual cliaroes of corrupt practices. LS75.] NORTH (!REV. 363 .][/-. J. K. Kirr for ])etiti()nur. ,)//•. M. C. Cameron Q.C, for respoiKlciit. Tin- cases rt'lied upon by the cotiiiscl for tlu' petitioner at the close of tlie evidence, as sufficient to invaliihite the flection of the respontU'iit, are stated in tlie juilgment. (JwvN'N'K, .1. — I propose to deal witli tliese heads of cmiiplaint, upon wliich, after lieai'iut;' all the evidence, the [letitionei', throa^']'. his counsel, rests his case, in a (lifiei'ent oi'der from that in whicli they were taken, and 1 shall deal lastly with the most serious, involving;' a n'ra\'e chai'p', ali'ecting not only the conduct and charactei- of tlie respondent, hut his civil status foi- a period of at leas^ ei;4]it years, if the charge is estal)lished. No duty can he moi'e painful, ami sometimes mure (lillieiilt, for a Judge to dischai'ge than that of estimating with discrimination and with due I'eganl to the interest ut' the puhlic on the one liand, and to that of the accused oil the other, the proper weight to he given to evidence ill support of, or in refutation of, charges of personal hiihery. Thert^ are so many things to be considered. We must lie careful not to l)e too hasty in I'cjecting the accusatory eviilence as coming from a tainteil source, for ill cases of this kind it is fretpiently hy the recipient of tlie hrihe alone that the offence can he pi'oveil. (M the u'eiieial character of the accuser we frequently know little. Although the I'ecipient of a hril»e, his truthful- ness may he as relial)le as that of the accused, who always has a str(jng interest to maintain his position, eve)i at the ex])ense of his veracity; hut again, the accuser may he ii person of such a character and hahits as to make it ilitlicult to place implicit confidence in his statements, although it may he impossible ti> adduce evidence such as tlie law re(piires to impeach the witness as unworthy of hoiief. We must, therefore, in all these cases scai\ with Ciii'e all the surroiunling cin iimstances, for the pur[M)se of detei'iiiining upon which side the truth lies, namely, whether upon that of him \/ho, while accusing another. Wffn i ' 1 . wm^ .S()4 THr»vi\riAr. ei.ections. [a.d. accuses himself also, or ni»oii that of hini who ussfrrts only his own innocence. Kveiy cast; must (lepeinl u|miii its own (Mrcumstances ; the niaruuir of the witnesses as Well as the mattei' of their evitleiice ninst he m.s'<; (1 O'M. & H. .SOI ), as a rule of general appli- cation, namely, "that the evidence ought to he strong, Very sti'ong, clear and conclusive of agency hefore a judge allows himself to attach the penalties of the Corrupt Prac- tices Prevention Act to any individual." The language of Baron Channell in the Shrcwshuri/ cta^c (2 O'M. & H. 80), and of Mr. Justice Melloi- in the Bolton m .30(5 PH( )V I NCI AL ELECTIONS. [a.d. cdsi' (2 ( )'M. .S: H. 1 40), is also instnictivL'. Tlic fonncr says, " (Jniivassinn- will only aHord ])r('inises from wliicli u }\\i\-^t' (lischaryin^' the t'liiietioiis of a jury may conclude tliat a!;,('ucy is cstaljlishcrl ; " and a;j;aiii he says, " 1 wisli it to Vh' understood liow fai-, in my o))inion, fi'om iihmv ('aii- \assinn' thosi; acts nnist lie fi'om which you may int'ci' that kind of agency which is to fix the candidate with rcsponsihility foi- the act of a person acting in ids hehalf " And Mr. .fustice Melloi' says, " The fact of a man haviiio' a canvass-liook is only a ste[) in tlie evidence that he is a canvasser inillmrizid by the caniluhitc'a ajtutti ; if you want to o'o further call the canvas.sei-, because tin; mere fuet of a man having a canvass-l)ook and canvassing, canni't atfect the principal inilrss I h'liotn Inj irjniiii tin: hkir inis im- jilnjiiil. Thei'e is nothing moi-e diiHcult or more delicate than the (|Uestion of agency; hut if thei'e he e\ideiiee which nught .satisfy a judge, and if he he conscientiously satisfied that tlie man truH iiiiphijud to amvaf^s, then it nuist he held that his acts hind the principal. I should not, as at present af the ministerial candidate for this lii, iiiitst places "mucccssililc. Mr also was rcrcnril tu 'm ^ |iriiitc(l circiilnr as a pci'soii, with dtluTs, cupalili' dI' ivt'iit- iiii,' uml proN'iii^ U> lie unt/.'iu' ci'i'taiii cliui'ncs w liidi Im,! liffii iiiadr l)y the opposiiiLi' ('aiididaic's tViciids, in m pjiiicr |iiiiilcil and ciiciilatcd liy tliriii against the i'es|)()ii(|riit, and he may ]>eiliaps ha\c signed the paper I'ltr the puipusc of testit'yiiit;' his williiiju'ness and his ahihty to refiitr id,, (•halves. lie look also some of these circiilais into tJir neiL;hlioili(»oii where lie resided. Au lioiiorulth' mail iiiMv surely express his williii^iiess to refute, it* in his p(»wer to do so, false fhai;n"es made hy one candidaie oi liis friemls auainst the othei-, without^ iH'iii;;- held to he llie a;j,ciit of the lat.ler. Upon one occasion tJie respondent, when passiiio' throii'^ii C'hatsworth, where the Doctoi' resides, asked him to cmiir to a pulilic meeting' ('i>n\('ne<| at DesborouMh. Tine, tlic Doctor was not an elector in (he ividini;-, Imt he was a pniilii- cliaractei' in the adjoining' township, and had, as the respondent no douht knew, expressed his delennina- lioii, as a jdihlic charactei', to take a xcry serious |)art in this election. The respondent dt>es not appeal' to have asked the Doctor to come to the nu'etiii^' to speak upon his hehalf. lie tlioii^'ht perhaps that it was \vyy likely he wouM speak if he shouhl come, ami that if he shoiiM s[)eak. the suhject of his oration would he the condeuiiia- tion of the ministerial camlidate, and the running' smv whicli, for till" present at least, had alienated him from his pai'ty. The respondent, indeeil, vi'vy prohahly thought that the Doctoi- could not and would not stay away, and it Hiay he concede(| that he was not nnwillinn' to dci'ivc whatever ))enetit should result to him as the natural cuii- se(|uence of this alienation. Tlu' e\'idenee lias satisticil my mind that the resjioudeiit s askino- the lJ)octor to j,'o to the UKH'tiiiL;- had very little influence upon him, for the Doctor confessi's, I think beyond all doubt — at least this is tlie impression he conveyed to my mind — that he had mounted a liobby of his own which Avas very high mettled, and from which he had no intention to dismount IS?:..] Nnit'iii (;i;i;v :{(!!> until lie sli( mill rithcr I'uil or sneered ill etjeet ili'4' t lie (ili'ji'ct |',,r the lime lieiii^' nearest to his heart, namely, (laiiiULj'ili.u' iiN t'.'ir us he ('(Jiild the minist ly that had w it hdiaw ii his t(i\\iislii|» i'rom the Kiiliii;^' iiy thedeleat oi" t he eandiilad' will) had lieeii |iiit i'orwaid in t lui r interest ; and I ha\ e no i|iiiiht--ut leusL such is t lie im|»ressioii lel'l ii|ioii my mind -that he never entcrtuiiied lln' idea ol' inernin;;' his own iii(|e]ienilent (|narrel on heliaH' ol" the township oj' w hicli III' was ree\ e, and which he rcLiarded as a mat ter ol' '^ra\ e iiiiMic iiioiiieiit, in the mere agency ol' an iiidi\iiliial, imr ilii I think tie i-es|)oiii|eiit had any idea that he had en- listed the hnctiir in the cajiacity of an audit. Such an ii'.ea, I ha\c i o doiilit, iieNcr entered the mind oi' either llie uiie or tdie )t her. It is said thai at, the ( 'hatsworl h meeting;', which \- is lirlil ill the limils oi' the Doctor's own townsliip of Hol- land, he, in the p.'eseiice of the resjieni lent , stal ei I t hat he was actini;' there on tlie res])oiii|eiit s hehalt'. Now, with ivs|n'ct to wliai actually took place there, there is much ilisciepaiicy ol" opinion. TIk' neiitk'nieii ojiposed to the |)iictiir do not tlH'ins(d\t's auree as to what did take plucc, line thinkiuL;' the Doctors remarks were coiitined to tlie particular act ol" iiisistiiit;' to know how many ol the i)[)p()sin_!4' fuiididates rrieiids intended to speak, tor lliey seemed to hr numerous, liei'ore they should proceeii further, and that he made this demand on liehalf of the ri'spuiideiit; otliei's fittrihutin^' a wider sij^'nitication to lii> Winds, namely, tliat lie was there attcndiuL;- tlie meetiu,!.; ell the respondent's helialf. The Doctor himself says, tliat what he said was, that the meeting' was hein^- held in lii- ewn ti)Wiislii[i (jf Holland, of wliich he was ree\e, and that therefore he had a ri^ht to inte.'f;;. TI. despondent says that lie was in and out of the room, and that he did )iiit hear the Doctor make use of any such e.Npiessioii as l!iat he was interferinn' Ufion his, the resjiondent's, liehalf, nr that lie was there upon his liehalf. All admit that there was ereat noise and confusion made upon the 1 Victor's interference, so that I can well conceive it vel•^■ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I lllll: m s36 — IIIIM IIIM 1 2.0 1.8 1.25 1.4 1.6 -m 6" — ► v: ^ /} VI e. ^2 .% %■ #1 o A ,-,^» • \ / Vj ///, Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY I4S80 (716) 872-4503 Cp, C/i m 370 PROVINCIAL ELECTIONS. [a.d. jiossilde tliat no one can very accuratrly tell us what was in fact said; Itut assuming' that the Doctoi did mako use <»t' tlic hin^fua<,'(.' attrilmtcd to him, in tlie si'iisc stioiiocst a;,aiin,st tlie respondent, I can well conceive tliat in view of the position in which the n^spondent found liiinsclf outniindK'ved hy the friends of his opponent, he may Well desire to avail hhaself of the powerful aid of tin; I)(»ctor in that paiticular enierjjjency to secuie an e(|ualitv of the nuuiher of speakers on either side without iiuikiii;,' the Doctor his a^ent generally, so as to he afi'ected liv his acts out of doors i tl •- indulifence of a hahit wliicli is so strong upon hiiu, as lie says, of treating his friciuls upon all occasions whe» :i- '.nt'e'^s tlieui away from home, that he couM Kit ]•« <•; i^ • <• it, thougli at the peril of the penalties attending ?: j ain violation of the h'uv. Upon the occasion of this meeting at Chatsworth, tliu witnesses say that the Doetor claimed to l)e of more im- portance tlian the I'espondent. This view seems piv- cisi'ly to accord with what the J)octor himself gives us to understand, in virtue of his dignity as reeve in his own township ; and 1 confess tliat the evidence has im- pressed my mind very strongly, as 1 should think it pio- hal»U' would every one who came in contact with the Doctor (hiring the contest, that wliatever he did was doiif in the carrying on his own independent l)attle, wagiij witli the ministerial candidate for his own ivasons aiiil with his own olijects. I mean, of course, puhlic reasdiis and objects in connection with the particular matter wliicii gave him ofieiice, and not in any sense as the agent of the respoiulent, a position which I am satisfied the re- spondent never conferred upon him, nor did the ])oeto!' assume. The constitution of our munieipal institutions is such, that it is not meet that puhlic men should he fetteictl ill the expr"ssion of theii" political sentiments, or in their I'ight to address public meiitings ,'f electoi-s during election contests, hy any fear that, contrary to their intent, their puhlic sentiments as expressed at those meetings should be attril>uted to mere advocacy as the agent of a IST.V] NOHTH rjREV. 371 tHiioint they declare tlu-nistdves opposed to the (deetion of the other candi' date, and advocate — it may he peihaps as the lesser of two evils — the election of his opponent, lender these cii-cum- stanci's I cannot hold the i'es|)(.ndent accountahk; for the (•(irrnpt pi-actici's of the Doctor, who himsidf must hear till' conseiiiee H o'clock, and 1 should so like a drink ;" whereupuii Mr. Paterson very kindly, accordiiiL;' to the lespondeiit's version, said that he would ^rive him a j;lass, not thinkiiii;' this mode of ujivini;" nd'reshment to the resp indent to he illes^al, or, according to Mr. I'ateison s version, the resjiond- ii\t asked Mr. Paterson to treat him, whiidi Mr. Pater.son agreed to do, hoth helievine; this to he lethal. Accordingly they went over together to Spiers" hotel, wlu'i't' the Itjii' lii'ing dosed ai;ainst the puhlie, they procured Spiers to Lfet them each a y Spieis, tlic tavei'ii-keeper wlio solil the ale, Imt also Paterson, who purchased it ant uierelr as having drank tht? glass wluch Pate I\S<)11 gave him, hut also foi- havin;n" asked Pattsrson t him tlie glass, as he did if Paterson's veision he accejtttMl ; and hoth «)f them, for having asked Spiers to sell the ale. And so it is contcncU'd that for this act the election is not only void, Imt that Scott is dis(|ualilied persdMiiilv. The argument is, that it is a violation of this ''lause of the Act for any person, whether tavei-n-keepei- or sjiojt- keeper, or not, during polling hours to sell or give any sj»irituous oi- fei'mented litjuois whatever, whether liv retail or wholesale, to any pei'son, whethei' an elector or a i)erfect stranger, and whether it he sold for consuiiii)tion in a private house or for transjujrtation ahroad even to i\ foreign country. For e.Kjimple, if any per.son within tlir nuuiicipality takes a friend who does not live within tlir nnniicipality, and is not an elector, honu' to diinier witli him, and y-ives him at his dinner a ^jla.ss of ale or winr within the polling hours ; or if any person, within the same hours and within the nnniicipality, .sells to any person, though not an electoi- nor living within the nnniicipality. a liogshea it in the ordinary course, the statute, it is contended, is violated hoth in the giver and the receiver in the one case, and in the vendor and the vendee in the other. Wlu-tlici' or mjt this is the true construction of the Act, 1 do not fi'el myself at present called upon to express an opinion, and therefore reserve my opinion until .sonu' such case shall ai-rive, if it ever shall. At present I am called upon to go further than either of the ahove cases, and to deolaio that to he a violatitjn of the law which, huyond all (|Uos- IS?:..] NORTH fiUEV. 37:? tion, is not within its Irttc r. Kut wliich, as is c<)nti'U(h'y the peti- tiiiiier that the letter in (juestion was wi-itten hy the person in wlio.se name it is .said to have heen written. Tile facts u])on which the ca.se was disposecl of a[)pear ill tile judgment. Si'i«.\(ifiE, C. — T will consider first the alle;j;ed hrihery ^^i Michael Sullivan hy Rohert O'Neil. Sullivan was in pi'ssession of a C^anada Company lot, ami there was a tlitK- ctilty in regard to his getting a deed of it from the Com- piuiy. The charge is tliat ONeil held out to him that if he procured electors to vote f(jr the respondent he wtiuld aid him in procuring for him the deed from the Canada Company, and it is represented that the getting out of till- deed was intended to he ke[)t hanging over the head of Sullivan as a spur to Ids exerting himself in pi-ocuring votes; and, though in fact obtained before the election, it was only very shortly before, and its pi-ocui-ement expe- "lited in consecjUence of the commencement of an action of ejectment by the Canada Company. The intention to postpone the procurement of tlie deed till after the election is not denied, but it is alleged that it was for a sufficient reason, viz., lest its being procured pending the contest might be laid hold of by the op])osing iiii n .r} •l^. r ! ^% %: LA. 37M IMIOVIN'CIAL KLKOTIONS. [AD. U' ■', c'uinliflatt', Ml. Siiiitli, or his t'rit'iids, as a luindlt', as O'N.il in his L'vidt'Mcc cxpfcsscs it, to iniputt' a coi'i-iipt piacticc upon Sullivan liy n'Ncil. Their. was no need, it is said, to liriiii; any undue iuHuence to luiar upon Sullivan, or to hrilu' him l»y any inducement to support the respondent, inasmuch as he was already, and had heen previously, a warm sui)p )rter of the party to which the respondctit helonL,'(Ml, and would in any event have supported lijni. It is a.Ljreee facts proved do not support it. Much sym- pathy was folt for Sullivan (hy his neit^hhors), who had lived upon and improved the land, a deed of which In- was .seokinj^ to ohtain, any hoth Shihley and llolt.son that they were made in mei'e jest. Stevenson, in liis evidence, says tluit Shihley is a man of wealth and a niajfistrate, and as I understand his evidence, the ofler came from him that he would vote ft )r the res[)ondent if Stevenson w^ould give him a .sheepskin. The witness descrihes Rohson as a storekeeper living in Carlisle. He swears that he looked upon the.se otiers as in jest, and felt sure that they were so regarded by Shibley and Robson. p. U^^ -.■ I !^. \'r 11 3S0 I'lloVINCIAI, KLKCnoNS. [A.n. A statfiiH'iit that an otl't'i' to luihc was iiuulc in i.-,t sliniiM Itc I'ccrivj'il with >^ymt Musj)i(!i(»tj. A hi-iKi-i- may make an Dtfci" which he iutctuls shoiiM l»t' taken seriously, anlic nomination, which was on the llth of ilanuaiy, that he recu-ived a communication from (iilchrist, financial ayent of the rc- s[)ondent, askin<;- him to canvass a school section. Thcry was nothin^^ shown to constitute him an a;:^ent hefore that. Another point taken hy tlu; pi'titioner is this, that thero were meetinj^s of electors within the meaniuL,' of section ()l, at which there was treating; within the meanini' of that section, and that the same heintf with the actual know- ledj^a' anlii)uiil hold it to he a corrui)t act. liub there are these matiiial circumstances to he taken into account : North .Midili«'se.\ is a I'ural constituency; the electoi's attendiui,' tliese meetings weie foi" the most part from a distance ; their horses and conveyances would he put up in the stahies and drivini^ slu'ds of the tavei'ns of the place ; tlie meetiny inducini,' voters eilliei- to vote oi- ahstain from votin;:;, otlierwise tlian tliey wotiM li.ave done if their palates had not been tickled hy eatinj^' and drinkinj^" sup- plied by candidates.' And ay mere hospitality was struck at by the common law :" Itut he ji'oes on to say in efi'ect that it is now forbidden by the Act of IS54, whenever resorted to with thecorru])t intent of influencing vot^'rs. In the treating in ([uestion tliere was the re\crse of jiro- fusion; tliere \va.s not more but miudi less than the usual hospitality practised )»y tlu; respondent, so that theic is really m) room for savini-' that the resixmdent was actu- ated by the intention of ingratiating himstdf with the : I' ^ ■ fft 386 PROVINCIAL ELECTIONS. [a.d. If' -:%j'A. electors by profuse hospitality. I will upon this ht-ad (juote the lauLfuage of two learned Judges not (juoted in the (rlciKjurrii rase. \\\ the WnJliiuiford case (I O'M. (\; \[ 59), Mr. Justice Blackl)urn considers that the amount i)f treating is an element of consideration upon the (pie.stioii of intention, and observes, "When we are considering as a matter of fact the evidence to .see whetiier a sign ribery which wouUl avoid the election at common law ; but, upon a careful consideration of the evidence, it does not lead me to that conclusion. There was nothing wrong, in the eye of the law, in the respond- ent makinii- his canvass bv meetinu: the electors at taverns, and he does not seem to have abused the occasions of so meeting them by seeking to obtain their votes by pam- pering tlu'ir appetites for drink or by other undue means. 1 apprehend tliat I nuist be aide to see with reasonable 1^7.). 1 EAST NORTHrMKKRl.AN'l). 387 (••itaiiity tlwit lu' has done this lict'orc I can set asiiU' tho I'i.'ctioii. Till' C'lsi' iiiado of an attempt l»y a Dr. Saui's to hrilic ,i;ii' Donal'l McDonald to vote foi- t!ie respondent ]»y the ^ivin'4 of a glass of liquoi', fails upon the evidence; and tlif case for avoiding the election by reason of Dr. Saurs tiviitiiiu' and partaking of li(pior daring tlie hours of poll- ing, fails hy the al»sence of proof that he was an agent of rill' tvspondent. I liave not found it necessary to discuss the (piestion of imriii'V in this case, as, in my view of it, nothing tiii'us u] on it except in the case of Dr. Saurs, for wliose acts I iln not find the respondent responsil>le. TliiTi- i> not, in my opinion, anything in this case to !ak*' it out of thi' general rule that the costs folhnv tlu' ivsult of the suit. ) il (!> Jonvii'il Lr;/is. Assrin., lS7')-(), J). '2'-l) EAST X( )RTHUMBKRLAX I ). BkFOHE Mh. Jr.STlCE (jIwyn.ne. ( iiiiiii Ki., .'i»/i fo .'-in/ Si-/)/iiiihrr, rloli( i\ is^'i. Hknuv S. C.vsev, PdUiiiiir)', v. .James Maushall Fehhis, RvKj)ondniK Aij' iii-ii~ />, /, i/n/ix to itoUHntl nssnrintioii to iintiiliKili raiiilii/ii/is oinl jirniiiul) tlnir return — lirihtry — Fraiittuliitt dcrin- to inj/innr)- rofi-rs, lly the I'Diistitiitioii of the Keforin Association for the Ea.st llidiiig of N'lirtlmmhci'laiiil, each ilulegate to tlio (-•oiiveiitioii wa.s actively to pioiiiDtf the election of the eamlidatf appointed l>y the convention. The respondent had hini.self lieen for six years a ineniher of the a.ssocia- tiim, and was familiar with its f)i)ji'cts and consLitntion. lie liad also as a delci^atc acted and canvassed for otiier candidates in tiic pioinotion iif their elections, and expected tl": lile ivifjii'dcd as the respondent's aj,'eiits, for whom he must he hehl responsihle. I am, howeviT, nf opinion that, even assuminjj; the Tuatters stated in tin (tii'cular to be false to the knowledi;"e of the parties issuiiii: it, it does not come within the 72nd sec. of the Act i)t' lN(iS, which enacts that "everybody wlio .shall directly ui indii'ectlv, bv himself or by any other iiei'.son on his In- half, by any fi-auduient device or conti'ivan'ce inipcilr. prevent or othei'wi.se intei'fere with the free exercise of tlir franchise of any voter, .shall be (^.'emed to have conmiittiMl the ort'ence of undue influence." It is, in my jud^nitiit. distinguishable from the Gloucester ease (2 O'M. iV H. (iOi. which is the only ca.se reported having any re.sembiiuicc to the pi'e.sent. There the act complained of was oiif which, if it had l)een designed with the intent iiiijiuttMl. would have been calculated to have the effect of misieiul- ing per.sons, without any exerci.se of judgment, to plncf theii' mark on the ballot paper opposite the respondents name only, and ,so have been calculated to make persons, by a trick ami dece|)tion, vote f'oi- a candidate foi' wlmin at the time of voting they did not intend to vote. In the case befoi'e me, the most that can be said is (assuiiiiiiL; the statement in the cii'cular to be false to the kiiowleil^v of the parties i.s.suing it), that they were by a falseluxMl appealing to the electors to exercise tlu'ir judgiiient in voting for the friend of the parties issuing the circular. Now, I do not think that this clause of the statute was intended to cover cases where parties, although it be liy IN?."..] LINCOLN. 391 t'lilst'liood and slander, appeal to the electors to I'xercise their judi^nient how to vote. Klection scjuil.s, it is to lie i('<,'retted, are aeeiistoiiie(l to deal freely with the character of opposin*,' candidates; this, althou^di a practice which is iiiiiiioral in the e.Ktreiae, and to !»• condemned l>y all liitnest men, has not a.s vt't, in mv ind<'ment, heen touched \\\ leL;islati<»n. (9 Joun.'d Lc.fjls. Assiiii., I.s7.')-(i, p. 17.) LINCOLN. Befoke Mk. Jl'stice (Jwynnk. .•^iT. rAlHAKINKS, .'(Ull to J .'llil Mui/, Silt lK(»Nre, l-'ith l)iri mill r, IS^'i, .' .'nd ./niinnrii, 1S7'!. .loIlN ClI.VULES li\'KK\Vl\ P'f if iimrr. v. SY'LVK.STER NeEL(»N, RcxiKiildi nt. 'I'rniihiij III II lai'' I'D ihiriiiij polUmj hourt — PnuiWu * on Im-i rn-hii/n r itiul liiirrlidsi r -Jiriliiri/ />. compensation for the injiu-y partly by cancelling a debt and partly ill cash, for which S. signed a receipt "in full of all accounts and claims whatsoever.'" The respondent canvassed S. during tiie election, saying, "I would like to have you with me at the election,' but S. ■M)2 PUOVINCIAI, ELECTIONS. [ad. declined, expressing ili«siiti«fiictii)ii witli the eonipeiiMation niiuio for the injury to his wife, to whicii tlie respondent replied tli.it In; wiw able to do, and could do, what was ri>;lit. Afterwanls the respDndtnt sent Ins salesman to the wife of S., who told her that the respoinlent was still able to d') justice, to which she replied she would writ*' u letter, which she d'd. and in which she referred to her huslwud's vote. After the election the respondent ^Mve .S. S'M partly hy oaiH'itlliiii; a delit and partly in tudi. The respomlent denied that he gave S. tn undei'stand that he would give him anything to imluce iiim to vote for him at the election. IIi'OI hy the Court of Appeal (artirming Owi/mii', J.), That the evidence showed tliat an indirect otter of money or other valuahli; consideration was made liy the respondent to S,, to induce him to vote foi- the re- spondent. At a late hour on the day preceding tlie election some agent.-* of tlie re- spondent determined to resort to hi'ihery, and they caii'ied out .smh determination at an early hour on the morning of the polling dny. There wa** no evidence of the respondent's knowledge of, or conHflit to, this act of his agents. Hil)l (reversing (iinjiitii\ .).), That the shortness of the interval hetween tiie resolve and the execution of the bribery, which wa^s carried out at a place several miles away from where the respondent lived, ieny .statute, is done l)y an agent of a candidate, but not in pursuit of the object of the agency or the interest or the caiulidate, or in any way in relation to the (dection, but solely for the puriiose, interest, or gratification of the agent, such act, not being done by such agent ijiia agent, i.s not within the penalties of s. .S of 3() Vie, c. 2. The petition contained the usual charofs of corrupt practice.s, and claimed the .seat for the petitioner, the un- .succes.sful candidate. Mr. J. A. Miller and thr Pi'titvmer in person for peti- tioner. Ml'. J. G. Currie and Mr. Bdhmu for respondent. The facts on which the election was avoided are set out in the judgments in appeal. Evidence was also given that one Patrick Larkin, an allege*! agent of the respond- ent, went into the tavern of one Doyle ai Niagara during polling hours on the polling day, and treated several person.^ there present. Counsel for the petitioner contended that this treating during polling hours was a violation of s. (id of the Election Law of 1.S68, and a corrupt practice. The learned Judge held it was not a corrupt practice, and his judgment on that point, not being appealed by the peti- tioner, is given as follows : 1M7.').] LINCOLN. 393 (fW'YNNE, J. [AFt«'r statiiij; tlio facts ami Klt!ctioM Law of l!S().S, proccciltMl :] I coiiftvs.s it docs appear to iiic to lie inconccival)lc that thr Jjt'ifisJatiirc could have coiitcinphitcd the possihility (if the section in <|Ucstion heini,' open to the ('onstruction iliut whenevor any person, whetlier a resident in the ii!unicij)ality wherein tlie election is jifoing on or not, an«' wliethei' an elector thtMvin or not, sells or gives any iHmiitity of spii'ituous Ii«juors, whether l>y wholesale <;c (itlierwise, to any i)erson, whether an elector in the nnuii- cipality or not, and although the transaction, lieyonil all i|Ut'stion, had no relation to, ami has no ett'ect upon, the (lection, the section is violated and the penalty incun'eayill^^ •»!• j)r()iiii,si!i;^' or cnj^oit^ini; t<» pay. for imv HiU'li drink «»r cntcrtaiiuncnt, was |)i(»vidt'd against liv tlit- prohiliition e(>ntainc(l in the (ilst section. Still it rnnaincd possiiiU;, if spirituotis li(|Uoi's coidij )f those places diu'iiieriiiit such to lie sold or given upon his premises. But asstnning this to he the true construction, still the treating, which is as.sailed as in violation of the (ilith sec- tion of the Act of I.S(i,S, occurred at a hotel. Doyle, the hotel-keeper, within the- polling hours sold the drinks, of which McClelland, Jjavelle, and Todd jiartook. Doyle is undoubtedly guilty of a violation of the section, and upon pro.secution liahle to its penalty. It may he also admitted that the act of .selling by Doyle, as in violation of the .sec- tion, is, under the provisions of the Ist .section of 'M) Vic, cap. 2, a statutory corrupt act conunitted by Doyle, al- though the act was never contemplated by any one to have, ami although it had nt)t in fact, any effect whatever upon the election, and that moreover by this act of sale. Doyle, upon his being proceeded against and found guilty V T piiiiiii" ..iijfi'i » t IM.Vl I,IN<'<>I-N. :«>:> iiii.lci' tlic i)rovisi(»)is <»t' the Wt\\ section of tlir Act of |s7l, will l>f ii'inlt'icil it capalih' for ii |it'rioil of ('ijj[lit yiiirs of liciun' clct'tfd to hihI of sittiii;^ in the Iit'i Ontaiio, or any municipal oflic*'. Still two ([Uestions remain : Firstly. i^ Laikin also liall lie sold or {,fiven. Now in the ca.se in (piestion, certainly in one .sense, l.av- kin. us the pecson treatinijf Mc('lellaner, and that it is u[)on him that tlu' penalty is imposed, and that whei'e a tavern-keeper sells a ^lass of liiliior to A. for the [)urpose of treating B., who theieupon iliinks it while A. l)ays for it, there is hut one act done in violation of the statute, hut one ottence committed, which is ci>nunitted hy the tavern-keeper, and that two [lenalties cannot he recovered, the one a;j;ainst the .selK'i- and the other against the treater. for one and the .same i^lass of li(juor .sold. The j^da.ss of sj)irits, for example, which Lavelle di-ank, was .sold only foi- the purpo.se of hcing drunk hy him, althou^fh Larkin paid for it. For the sale of that eini;done within pollinif hours mav make the shoj)keep(>r liahle for s(dliii^' in violution of tlir statute, it is (^intended that A., who hoiiuht it oidy that, it mij^dit he sent to H., to whom the sh()i)keept;i' did send it, is not also liahle to anothei' penalty as ^iver. This is a point which would moie satisfactorily !»> i-aise*! upon a prosecution for the j)enalty under the statute. 1 confess thei'e seems to l)e j;i-eat foice in the ai;i;'ument. if the true vii'w he, as it seisms to me to he, that the act was intended alone to point against hotel, tavern, and shop-keepers, u[)oii whose premises spirituous liipiors and drinks tuv t)rdinarily sold, an hotcd, tavern, or shop-keeper, and must mean sold or jjfiven hy him ; the word "given ' heiui;' addeij to prevent the possibility of the party proceeded against foi' the ])enalty evadinn' the statute hy .scstting up as a defence that he did not sell, i)ut himself gave the drinks. That this is the true construction seems to me to l)o apjiarent, when we trace the source from which the (Jtitli section is derived. It and the prcjcoding sections, mnii- heiing from o7, are taken from sections 72 to 81 inclusive, which aie grouped under precisely the same liea on Sunday dui'ing the hours (jf divine service," and the othei- " if hi) should sell or give any spirituous oi- fermented licpiois as afoi'esaid." How the offence of neglecting to keep the hotel ov tavern " closed in the .same manner as it .should be on Sunday during the hours of divine service," could be com- iiiitted in tlie ab.sence of the sale or gift of any spirituous oi' fermenterl liquors or dr.nks, and in the absence of all diinknig suffered or permittee said to be guilty of the corrupt practice which that statute declares a violation of the (lOth section of the Act of 18(j9 alt' oiilinarily sold, answeraMc for what lir prniiits to l)e (l.iiic in violation of the Act. But assuming in the oases put of the treat at tlie hotel, ants a friend or two to a glass as he would on any other occasion, such Heat iia\ ing ni> refei-ence whatex'er to the election, and, it may be, Iteing given to a person not an electoi' — in such case, although the tavern-keeper who sells the li(|Uoi' would undoubtedl}- be guilty of a violation of the 6()th ' '{ fpl^} 400 PRONMNCIAL ELECTIONS. [a.d. soetion of the Act of l.S().S, and so of the statutory cor- rupt practice declared liy the Act of IiST-S, and even tliougli the agent may also l>e in like manner giiilty, sluill the innocent px'incipal in such case have his election avoided by such treat f The Legislature, no doubt, may arbitrarily enact that any act, even om- in which the candidate is in no wav concerned, and which is not done in his actual or supposed interest or in pursuit of the object of the election, inuy notwithstanding avoid the election, but in the al)senct' of the most express words conveying such an intent, we should avoid a construction having such effect. What the Legislature has said upon the subject is con- tained now in the ."h'd section of tlu^ Act of l!S7'i whicli contains two sul)-sections that must be read together, and so as to be consistent with each other. The object and effect of that section was plainly, as it appears to me, to repeal wholly the (If^th section of the Act of 18G8, which had been in effect, though not in terms, repealed by the 4()th section of the Act of fSjl, and to substitute a clause in lieu of the 4()th section. That 4()th section of the Act of 1y some pcirson in his lichiilf, with a view to tlur ])romotion of his election ; hut wlictlu'r or not tliere could liave been any corrupt prac- tice conintitted by any one, oth(.-r than the candidate Idni- s(;if ()!■ his a^a'iit, to which this 4()th section of the Act of IM71 could he applied, it is unnecessary to infjuire, for that section is rei)ealed hy the ''hd section of tlie Act of lS7'i, the 1st sub-section of which very distinctly, to my miiid, ex})resses and fleclares all tlie cases in which an election shall bo avoidetl, namely, in the cases oidy y tlie first sub-section, dis(pialitication shall also ensue when tlie coi'i'Upt act wliich so avoids the election is done by or with the knowledife and consent of the candidate, that is, wlierr it is doiu' l)y himsvlf personally or l»y Ins agent, with his knowledge and consent, for mdess done by him- self (d- his agents, the election is not avoided at all. 'i'he second sub-section carefully abstains from saying tliat any coirupt practice comhiitteil by or with the actual knowletlge and consent of any candi> suy mind, it would be contrary to the plainest pi'inciples of connnon sense and justice, to attribute sucli an intent to the Legislature, or to put such a construction upon the Act. Such a construction would have the effect, Iff r'i ( TTm^^fnffip^ IS?:..] I.IN'coLX. 4():{ ill iiiv Juiln'iiicnt. ol:' enaetiTi<;' laws of tlu> most ])ciuil cliai- act.T I'.v juilicial decision— not hy Ici^nslatiNc dcelai-ation flcaily (xpresst'd, without whicli latter sanction, plaijjly i\[iivssf(|, no penal conse(|Uences of any (lescri[)tion — iiiiicli ii'ss of the cliaiactei' of those penalties hei-e I'eferreil t(i— c;in lie iiiiposeii. h^very Act of Parliament should he M) eonstniecl as to he consistent with conuiion sense and justice, and not so as to lion. the act C(^niplaineil of is not done in pursuit of the ijlject of the agency, in view of the intei'est, actual or supposed, of the camlidate, or in any way in rtdation tfi till' election, hut solely for the purpo,S(^ interest, or grati- lication of the person who i.s agent, and is not corruj)t otherwise than as it is proliihited and made .so hy the statute, such an act, not heing done hy tlie agent (jua 404 PROVINCIAL ELECTIONS. [a.d. I V r t|3 lilH \r^ atfent, is not an act which can, in my opinion, lie within the ineanin*^ of the 'Md section of the Act of 1nce of ^^r. John W. Iving, I see mucli i-eason for thinking that it WHS not uncalled for. One illustration of the want of correspondence between their verbal i-esolves and their actions may l)e given. On the afternoon or evening of Saturday the Kith January (the poll was to take place on Monday following), as one witness stated, " We spoke about spending money, l>ut it was resolved not to. It was tlie subject of general conversation. Spending money was talked of the same as any other election mattei-, Itut there was no way of spending it, the law was so strict." On the Sunday evening (Mr. James S. Noiris is the witness) .some ])arties met at Mr. John W. King's house, at St. Catha- rines. Mr. King being the l)ook -keeper an Act of Ontario, '.i'2 Vic, cap. 21. The si'ction is placed in a ili\-ision of the statute headcij " keepinii' the peace and ^ood older at elections." and is thus worded : " K\-erv hotel, tavern and shop in wliicli spirituous or i'ermented li([Uors or drinks are ordinarilv soM. shall he (doseil duriuu,' the day ai)])ointed for polling' ill the wards and muuici[)alities in which the polls aiv lield : and no spirituous oi- fermented liipiors oi' (hinks shall he sold or ;;'iveu to any [)erson within the limits ef such nninici[)ality dui-iii;4- the said period, under a penalty of !?1()() in e\-ery sucli case." The law [)reviously in foi'ce in the Pi'o\inee of Canada on the same suhjecL was: "Every hotel, tavern and sliep in which spirituous licpiors are ordinarily sold, shall !»■ closed during the two days appoiiiti!7'j.J IJNliall not contend woujil not he the true coMsti'Uction ol" t!ie statute ol" ( 'anada. It is also, as I learn, further conteniled that section fill creates only mir otieiice. consistiiiLf of two j)arts, vi/. : (1) not keepiiiL!,' the tavern, Occ, cIosimI : (2) selling" or j^'ivini;- spiiituou^; Ol' t'erniented li([Uors to any person. It' the latter pi'oposition he correct, it may he that no one hut the kee])er caii iiicur the [jcnalty ; hut, conliniiii.;' att'/ii- tioii strictly to the lan^'uai^eot' the section, I think the pro- position untenahle. I will lirst endeavor to meet a sut^evstion that, unless tlie section is read as indivisihle, the non-ohservance of the lirst part will incur no jienalty. This appears to nio ti) make the (piestion de[)end u[)on [)unctuation. I'ut a full stop after tlie word "closed," ami it may he so; hut leail the whole tog'otlier, without [)atise, or eviMi with a (•iiiiiiiia after " clo.sed," and ,n"ive ley-itimate ett'ect to the closiiii;' words, " under a penalty of i^KK) In cirn/ si/c/i citsr." ami the ohjection disappears. In every case in which the precediiie; enactments are violated a penalty is in- dicted, as well Avhen the h(»usi'is not kept closed as when a Li'lass of wine, or of spirits, or of heer is sold or g'iven. There is a further reason for construini;' this section dis- triliutively, though the amount of the penalty is the same in all cases. The authority of C'rr/ij).'^ v. Pmuhii, C-owp. ''+11, has never hetMi ((uestioiied ; it has lieeii freiiueutly recogni/ed, and was the unanimous judgment of the Court of King's Bench, or exiTcise any wonlly lal»oi', l)Usiness or work of their ordi- iiary calling; on the l^ord's day." In Lord Mansfield's laniiiui'Te, " The olleiice is exereisinj' his oivlinarv caliin<' on the Lord's day, and tluit, without any fiactiou of a day, liours or minutes, it is one entii-e oti'ence, whethor Ioniser or shorter in point of ) ,i;-nilty with tin- foniu'i' U lie n'iN'cs the iii|U()r imichu.Mil l>y him to persons in tlie tavern. 'I'hat Larkiii was anactiNc a^eiit of ri's])oniieiit is sutli- cientiy pioNed, an0, an;l askeil if that would .satisfy her. Cifilit was then unven for Si 9.12 on an account against Stewart, andSlS.NS was paid to her in cash, hy respontleiit's direc- tion. But Itefore this payment, and also ahout a week hefore this election, Stewart and the respondent met at the miniicii)al election at the (irantham school-liouse, and according to Stewart's account, res[)ondent said to hiiii , IfPH, I.I l.s7.>.] LINCOLN. 41 '■ I \v()ult think from the lauyuae-e that Mr. Neelon was tryiuLi' to huy the man's vote. vVnd Jlohertson, who was stamline' near, heard re- spondent .say, " iMi'. Stewart, 1 am willini;' to do it, ami will do it." Stewart says I'esjionilent hegan the conver- sation l»y .saying, " I would like to have you with me at the tdection. " Tlien Stewart exj^ressed his di.s.salisf action as to the compensation made for the injury to his wife, and respondent said if he had not made it right, lie was alile to make it right. And he wound up his evidence liy saying, " Mr. Neelon .said to me, ' Mr. Stewart, I want to do what is right. I am ahle to do what is right. J can do what is right.' Jt was not .said liy way of a hargain. .Ml'. Neelon only told me he wanteil me to support him ; lie out it And now you can use your own pleasure about it. but I think you will do what is riidit. It' you do, give nie -SlOO, and 1 don't think that will he anything out of the way." This letter is dated January, lis7'), no day stated. Stewart says he went to the mill about dusk with the letter, and gave it to a man who attends at the mill. He saw King and Sisterson after- wards, and not heni'ing anything about the letter, he asked Mr. King if he had seen the letter, and he .said he had read it, hung it up, and put it on file. He afterwards asked Mr. King, and he said respondent had read the letter and placed it on hie. Then afterwards he saw respondent, who gave him S30 — not all in ea.sh. He in the election. I used no such language as 'If I had not done the fair thing, I will do it if you will be with me, or anything in .substance the .same; nor did I .say, ' If I had not made it right, I would make it right.' After the election was ov(.'r, Stewart came to the mill and asked if T hat true, that respdiidi'iit did not make the j)ayment depend on his voting for him. Stewart went to his wife, apparently iiiunediately after parting with respondent, and tells her iihout it, and she writes, oi- rather dictates, a letter to respondent, lieginning, " You sent me word by my hus- hand nhoiU votiiif/. and what I haul»t that, whatever were the precise woi-ds usol l»y respondent, the conversation hetvveen him and Stewivrt related to the ehiction and to Stewart's vote, and that Stewart's statement that respondent said to him, " 1 wouM like to liave you with me at the election," is the key-iiDtc to all that t"(jllowed. Stewart understood it, thou^'h his vote was not directly mentioned, and the respondent expeetf(l it would he so inttjrpreted thoui-'h so n-uai'dedly viM|r(l ; and the subsequent settlement and payment conlirm me in this conclusion. I feel thei-efori.' constrained to hold this to have been an indirect otter, oi-i^'inatinj^' with the i'e,s])ondeiit, of iiioiicy or valuable consideration, made to Stewart to induce liim to vote for ivspondent at the cominuj election, and I therc- foi'e apfree in the jud^'ment that the (de-ction is void ly reason of this corrupt practice couunitted by the respond- ent himstdf, as well as by reason of other corrupt practices committed by James S. Clement, Robert Mc^[augh, Hugh Hai^'an, and others his agents. Bef' ve cemcluding, I desii-e to make an observation as to the proceedings and bribery which are proved to have occurred on the Sunday night before, or in the cai'ly morning of the day of the polling. The professions of a camlidate that ho is entirely ignor- ant of the conduct and acts of his most zealous suppoiters, especially in reference to such acts as are rarely ar,x. 41. t • fact, liL'cause he will not use tlie moans of int'oniuititju wliicli sun-ound him. Sucli ii^noruncL' l)fings to miiul tlie old maxim, Jf/iiormt- tiii jiiri^i tjiKid (jui^fiue fciictiw sclrr Nr.iniiinn i'.iTm((t, and makes Mr. Best's comment on the maxim moi-e pertinent: • If those only shoiiM he ameiiahle to the laws who couM III' ]iii)\-eil ac(|uainted with them . . . pei'sons wouM iiatiually uNoid aecjuirinj.!; a knowledy;e which carried such ilaiiueroiis conse([Uences with it." Ami so the wilful avoidance of a knowledn'e also frauin'ht with daiiuo- miiiht, without nnich strain, he rrness of the intei-\;d hetweell the I'esoh'e and tin- I'Xi'cution renders iuiprohahle the fact of the respondent's actual knowle(]^-e, and a tindiny against hi)M ought, to lie five from reasonahle (loulit. DnrroN, J. A. — 1 concur in thiidcing that this appeal liiU>t lie dismissed, hut I ilesire to liase my decision en- tirely U]i ndent's innocence. As regards the Stewart case, there was evidence which might impress differ'nt minds difFerently. In dealing with the findmg ot Vw '. arned Judgt," upon that evidence, we ai-e much in the [)osition of Judges ■when a rule is moved for to set aside the verdict of a jiuy en the ground that the verdict is against evidence. The Judges do not consider what conclusion they wouhl have arrived at had they been placed in the jiosition of tlic jury, but whether there is sufficient evidence to wanant the verdict, and whether the presiding Judge is satistieil with it. Hei'e the learned Judge has found upon the 'vi- dence adversely to the respondent, and I should not pie- sume on a cpiestion of fact to set up my opinion against his, when he had the advantage of hearing the witnesses, apart from the deference which I feel to be due to a Judge of his learning and experience. Pattei^sox, J. A. — This is an appeal fi'om the decision of Mr. Justice Gwynne, which sets aside the election and dis(|ualifies the candidate for corrupt practices committed l>y him. The evidence on one of the charges, viz., that of bribing a colored man named Stewart, is quite sufficient to sus- tain the findint;, and I see no reason for taking a different view of it from that taken by the learned Judge. •^immmmm 1S7.).] LINCOLN. 417 The facts stated in cvideneo were, tluit Stewart's wife hail lier leg l)i"okeu about two years befori' the election liv Ml'- Neolon's team, which had run away, and Mi-. Neolon had paid her or her husband i?').') as compensation, partly by cancelling an account and partly by cash. It (joes not appear that after that settleuMMit the Stewarts had had any open account with Mr. Neelon, oi- had bet-ii obtaining goods on credit, until January, IST'). The Stewarts were dissatistied with the settlement, but nothing was done to remove their dissatisfaction until the approach (if the election now in question. This election was on tlic iMth Januaiy, IN7'>. When the nnuiicipal election tor the township of Grantham Avas Iteing held, in the ln'o-inningof the same month, Mi'. Neelon spoke to Stewart in a school-house wliere a number of jteople weiv, an\-|N-CIAI, KLKCTIONS. [A. is ;iinl i|i'li\rii'<| ti) M'liic one ill Mr. Ncclon s mill di oIj'k Mr. Nrcloii says llic ('(iiitciits of it ii tlic csiili'ncc for a ilillcrcnt. infcrcnci\ liiit llic matlci' In not \ cry important. The letter shows, at all events, iji.. tcriiis on which the Stewarts umlerstooil tin neM-(,( |;,ti(,ii to he iiroceediiiL;'. Following' Sisterson's \isit and ilii. sending' of the li'tter. the facts next in order of (in shown liv entries in Mr. NiM'lon's l»ooln HUh i'"ehriiary Stewart is charged with ihmr, \'c., to the aiiionnt of s:}..') I , makiic^- in all .^lli.li'. Afterwards, .Mr. N'eclon hini.self .settled with Stewart, allowing' him s:!0 additional compensation in respect of the uccident, which he paid hy ,Li,i\inu,' liini in cash ilie diffi'l-elice hctw.'cll the Sl!>. il? and the S:!(). The learned .Illdl4'e liaA'inn' hecll satisfied, U])oll exiijencc of this character, that .Mr. Neelon had directly or iiiiji- I'cctly, hy himself oi' hy some other ]ierson, nivcn. otl'eivd, 111' promised money or xalna'ile consideration to Stewart in order to iniluce him to \ote, it is imj)ossiIi|e for us to ■^ay that he oii;_dit to lia\e come to any otiier conclnsinn. This disposes of the appeal without the necessitv ef discnssiiiLi' the other m;itters coxcreil hy the \-er\' caiiTiil and elahorate iuduineiit of the leariieil .Indu'e On these suhjects, v'v/... the con.strnction of section (id (if rl Act of iSliti. and the eltect of the Act of IS7-'). when liuL section has heeii \ioljited witli the knowle(li;'e anil consent of the candidate, we ha\i' already had occasion to not ice ill the jlldLillient of tlli.S ('onrt in the Xniih IV, iil irartli ru.sr [i(iil< p. .'!4.S). And we liave fnrther to construe se('tion !J). L'8 (a) Kopurled U'iniiiiioii Kluctioim, ls74, y«t. JH \ ' e * if \ ■ ^% p \ 'j H s! ! ( 'I H-^ li ri;l 420 PUOVINCIAL FJ^ECTION'S. SOUTH ONTARIO. [A.D. Before Mr. Justice Wilson. WiiniiY, ////( to I3tli Mai), isr'>. Before the Coi'rt of Ari'E.M,. ToKoSTO, Ji.iml J)iri iiihi r, IS7''>, .'.'nd Jitnunrn, IS7i>. AURAM FaRWELL, Prfifidiirr, V. NICHOLAS W. BroWN, licspomlcnt . Aiieiiri/ — Piilitiral (is'tocidfioii -Ooiaint/ttis — C'nrnipl /irncfios - - Trintinij ilurtiiij /inlluiij /lottrx — " Miiiiiri/Kili/i/ in w/iic/i polls nrr hihl"— Iti- Kpouihiit Irrdfhiij /linisel/duriiiii iiolliiiij /loiifK — A'ew r/ianii' in Ajiji'iil — Particulars. Tlie rospoiuleiit was nominivted by a Conservative iissooiation, anil \w accepted the nomination. Tiie ilelcgate.s to the association weint tu do all tliey conld to secure liis election. A connnittee was apimjiitcil in O. to canvass the town, and a ciiininittee-rooni was engaged and imiil for by the a' '-elation, voters' lists were procufed and used as laii- vaasing books, and members were apjiointed to canvass parts of thf town, and reports were made to the committee of the result of tlic canvassing. The respondent, who resided at W., did not attend the meetings, but knew they were canvassing for him, and gave tlicin blank apjiointments of scrutineers to till up, which tliej' did, but tho respondent did not know wlio composed the connnittee. Uiltl, per Wilson, J., that the respondent, by authorizing such coniniitti'i' at O. to appoint scrutineers, made them his special agents for tliat par- ticular matter and for that occasion oiily, and did not adopt tlium a> his general agents for all the purposes of the election. One T., a member of such connnittee, canvassed activelj* for the respond- // ent and to his knowledge, and on the nomination day attended a nictt- / ing of the respondent's friends m W., at whii'h the respondent was // present, and at which arrangements were made about canvassing and getting out votes, and generally about the election. JIclil, by the Court of Appeal ( Wilson, .1., y tho Court of Appeal i /h-iiprr, V. .(. A., ili't.-xntiinli ), that s. tifi (if tlie Klection Law of IStiS (U'J \'ic. , c. "21 ), as aniemh'il l>y 'M\ \'ic., e. ■-', ap[ilies only to shop, hotel and tavern keepers, who alone are lialile to tht! penalties for keeping open the tavern, etc., and for hulling or giving Npii'ituous licpiors during the j)rohil)ited lunii's. //(/u given. The respondent, on polling day and during polling hours, went to a tavern at NV. and partook therein of spirituous or fermented li(|Uor, fur «iiich he did not then pay. //./(/, //' /• \Vil-«>ii, .1., that h(; did not "sell or give " spirituous liipiors witliiii the meaning of s. (>(! of the Klection Law of ISfiS. The petitioner was not allowed to urge Jtefore the C'ourt f)f .Appeal a ciiarge of corrupt practices against the respondent ])eisruially, m liich iiad not heeu specified in tiie particulars, or adjudicated upon at the trial of the petition. The petition contained tlie u.sual eharge.s of {'oi'ru}>t Iiractice.s. Mr. Bcfhvnr niid Mr. A. it. MrMilhni foi- petitionei'. Mr. Hi'ctorCninrron, <^.C., mid Mr. IHHunjx t'oi- re.spondent. The eviflenee atlectin n fe;l. ^I»III -^■i! --,iHt-!^-i;' 1--' 422 I'UOVINCIAI, KLKCTIONS. [A.i). a ('((iiujit |iriu'tict' witliiii the Olitli scctidii of tlic Mlictii.ii Law oi" lN(iS. It must lie coiisidciccl — Fii'stly : WlictliiT Ml'. Tli(»iiias ami Mi-. (Jililis wnc, nr t'itlici' of thrill, and wliicli of tlirlii was the ncilciul iintius oraj^ent of tlir r»'.s|)oii(lt'nt ;" Sccontlly : Wlu-thrr Mr HH- lin,' coiimiittt'c met tlicri' nciiily fNri'v cvciiiiiy until tl led ion was over. It was arnui^t'd that ccitaiii iiicMilicrs of tlir ('1)1111. littrc were to t-aiivass ct'itain piiitH of the town. I was to canvass iL^'ciicrally. Then' wcl"' hotel's' lists not ami put into tlir form of hooks \\)v can .1;,'; think tiif ('ouscivativf Association paid for tlic use of the room, Thf scrutineers were apiiointcij hy till' coiiimitti'c. I suppose hiank a))pointmt'nts, sij^ncd hy Ml'. IhdWn, Wcrr i;ot ail'l tilled U]i l»y the committee. I ijid what I could in tJic ridiu:;' for Mr. Brown. I had lint much else to do at the time, and I went into this elec- tion to will. I met Brown at Oshawa durine' the canvass, lie was not at our meetine-s. No arrangement that he was lint to attend. From anythini;' that passed hetween us, I do not know he knew 1 was canvassing' for him ; I sup- pose he knew I wasdoineall I cotlld f' all he could for him durino- that period of canvassing, and so that there was suHicien^ autlioi'ity conferred on Thomas to c(jntinue so to act, aad of a ratification by Bnjwn of what Thomas had already done. If it were not that Brown gave authority to the com- mittee to appoint the scrutineers, 1 think it could not be said that the evidence showed that Brown was identi- H(m1 with the commi<'t<'e, but that it was a conuiiitt.'e uiei'ely in his interest, got up either l)y the Conservative Association or by voluntary contiil)utions of the people of the village favorable to that ]>arty and to tlie candi- date. Sfa/('i/brid[/e case (1 O'M. iJc H. G(j) ; U^cstniinster ca.sc (1 O'M. ec H. 91). Having given that authority, he did to that extent constitute the committee his agents ; but I thiid< he tlu'i'eby did not ailopt them as his general agt'uts for all pui'poses, and so constitute each member of it his repre- sentative to canvass or to make him responsible foi' the liribeiy or treating of the meml»ers. Empowering a [)er- son t(j act as objector-general at the revision of voters' lists does not give him authority to bind the candidate I A V'-: 426 PROVINCIAL ELECTIONS. [A.D. by an act of bribery: Wigati case (1 O'M. k H. 18N). I thought that strictly agency on the part of Thomas was established l)y the evidence referred to, although there was no express or direct autliority given l)y Brown to Thomas to canvass generally or to do all he coulil for him. I did not think it was conclusive evidence of agency ; liut that it was evidence nevertheless, and it certainly is so. But I am disposed to doubt whether agency has lieen estal)lished eitlier in fact or by implication, for the follow- ing reasons : The original meeting to choose delegates was called by the Conservative Association, Thomas being at the time a jnend»er of it. The delegates so chosen, of which Thomas was one, nominated Brown as their can- y Thomas also will be Avell established against Brown. Bui can Brown be identified Avith the committee •' He did not appoint it ; was never at it ; did not know who composed it ; excepting the fact that he gave it authority to appcjint his scrutineers, there is no evidence which .shows that he knew there was such a body at all. In the StdJenbiidijt cdur (1 O'M. & H. (J()), Blackburn, J., speaks of a " com- mittee not selected by the respondent, l)ut consisting of bond fide volunteers chosen ])y the voters of the district as persons in whom they had confidence, to be the head of their own department, and to act together ;" and again, at p. 72, he says : " But in such a case as this, when I am convinceil that they were really honil fide volunteers, voters acting for themselves, not selected by the menibor or chosen by him at all, but really bona fide in a lius'.ness- like manner, the voters of the district choosing sober ar.d 1H7.').] SOUTH ONTARK). 427 resi)cctaltle incn in whom they had contiir authority from him as all agents must do, then it will be very diflicult to nuike out that Thomas was an agent of Brown. He had nothing personally to do with { i. y ■ 1 428 PROVINCIAL ELECTIONS. [a. I). i i -'-r^ R;r ■ '! ? .-;-:,i i Brown (excepting that durin*^ the canvassing he saw Brown in Osliawa. He (Ud not speak to Brown of canvassing, hut he says lie supposed that Brown knew that he (Tliomas) was doing all he could for hini in the election. If these circumstances be of such a nature that it can be inferrod that Brown accepted Tlionias from thenceforth as Jiis agent, it is of no conseipience whether the committee was appointed by or adopted by Brown or not. The statement of Thomas shows rather that he was a vohm- tcer and had no authority from Brown, or if ho were acting under any authority, that he was acting foi- and under the couunittee. Now a candidate is not oltliged, as a rule, to repudiate; all voluntary acts of service. He may accept them at times without binding himself to all that such persons may do for him. As in the Sta/ci/hrulijc m.sr (1 (VM. & H. 70), where Blackburn, J., said : "The ett'ect of that would be to say that wlienever thei-e were volunteers who were acting at all, and wliose voluntaiy acting was not reputliated by the candidate or his agents — whenever, in fact, a person came forward and said, ' I will act for you and (mdeavor to assist you,' and the candi- date or his asent said, '1 am verv much obliged to voii, sir,' — any corrupt or improper act done by that volunteer, although unconnected with the member, would render the election void. To lay down such hard and fast i-ules as that would at times woidv gi-eat injustice." But Brown did not say to Thomas that he (Brown) was very much oldii^ed to Thomas for anything he supposed Thomas was doiny'. The most that can be said is that if Brown did know Thomas was doing all he could for him, he did not object to it or repudiate his acts. But a candidate by mere non- interference does not necessarily bind himself by or to what another niay be doing for him ; that alone will not make the other his authorized agent. It must be remem- bered too that Thouias did not tell Brown he was dow^ all he could for him. He said that nothing of the kind was mentioned ; that all he said was that he supposed Brown did know that he (Thomas) was doing all he could ■"""■^""■■iVMH li 1875.] SOUTH ONTAHIO. 429 i ' for liiin. After mucli lio.sitation, ami I must say to a con- siderable extent against my own primary impressicm, I think tlie agency of Thomas lias not heen estaldished as a;la.ss of beer and a ciffar once in a while: I hired no teams." Upoji that evidence I caiuiot .say there is agency establi.shed. There is the fact that Gibbs was one of the committee and was canvassing generally, but not liy authority from Brown unless through the connnittee; l>ut there is .still the .same lack of evidence to prove that the connuittee was appointed by Brown, altliough it was uii(juestional)ly acting for him and in his interest. There is also the same lack of evidence that Brown personally ii 430 PROVINCIAL ELECTIONS. [A.D. 1 -ff ; ViV- ailoptiMl oi- autliorizt'd (Jiblts' individual acts. I thrict'oro find the first (|UL'stion a^^aiust tlie ])etiti()iier — that Tliomas and Gibbs wore not, according to the evidence, the authdi'- ized agents, nor was either of tliem tlm autliorized aijuiit of the respondent at tlie time of or during the election. As to the second (juestion, relating to the alleged agency of Billings and Clark or of either of theiu. The evidence as to Mr. Billings is: "I took part in the election; was on Bi'own's committee in the town, held ovei- the CIn'onich' otHce. I was not an active membei". 1 canvassed tliosi- I met. Saw Brown every day at that time : saw him at the connnittee-room once oi- twice ; no othei' conniiittcf l)ut that one in the place. I was a scrutineei- at one of the polls here foi- Brown. There was whiskey at the poll that day. T took it for lunch. 1 gave the Deputy Return- ing OtHcer some of it that day at lunch time ; gave it to no one else." I think on this evidence that Mi'. Billings, while acting in a special character as scrutijieer, and under a special written authority from the respondent, cannot be said to have been in any way acting in his fonncr ca])acity of a committee-man, or agent of or for tin; w- spondent; and when he gav^; the whiskey to the Deputy lleturning Othcer at lunch time, and took some as part of his own lunch, was doing an act in no way as a repre- sentative of Mr. Brown. If the authority t(j act as an objector-general in .settling the voters' lists will not make such person the agent of the candidate, to fix him with bribery connnitted by such pei'son — Wifian case (I ()"M. iV H. liSiS) — the appointment of Mr. Billings to act as scruti- neer will not empower him to do an act of treating and to make the respcmdent answerable for it. Upon that occa- sion Mr. Billings' authorit}"^ was limited to that especial duty, and he had no power whatever to assume to act beyond it: Bodwin case (1 O'M. & H. 117); Hereford (•»«■ (1 O'M & H. 194). The fact that he gave whiskey to the Deputy Returning Officer and not to any voter, shows that he did not assume to be acting as a committee-man ■ ' T r-?>>| ^^ < ■II^P^P^^M^ I; IS".').] SOUTH ONTARIO. 431 iir as a ,i;vnL'ral agent of the i'es])()ii(k'nt. it' he can I >u said (Viu to have been one. 1 am ol' o))inion Mr. Billin;4s wa.s not an arown"s election Imt this i-oiiiniittee. Jordan went into the polling phice, and 1 suppose he voted. He does not heiong to my lodge; he is a Roman Catholic." I think the Whitl)y conmnttee is shown to have heen Browns committee, at which he attendi'ij several times. The meiuhers were to caiu'ass generally for him, and Mr. Billings did do some of it. (JIark was oiu" of the committee, and he was authoi'i/.ed to canvass, and was not limited as to any particular ]»artof the town to work in. With such authority In- went to Oshawa fi)r Jordan, a voter, and liroiight him up to Whithy to vote for Brown, and it is believed Jordan dirl vote, as he went into the poll for that purpose. While Clark ha.i Jordan in his company at Oshawa, and before they left it for Whitby, where Jordan was to vote, he treated him- self and Jordan to a gla.ss of whiskey each, and he paid fur it. h \ ■'■t 4 ■' f m fi'v, v Hi 432 PROVINCIAL ELECTIONS. [a.d. Tlic third, fourth, and fifth (|Uosti()ns it is uunoccssarv to say anything of, lu'cause if Thomas, Oihbs, ami Billini^s were not tlie agents of tho respondent, there wei-e no ODr- rupt practices to make him answerable for the acts provcil against them. The sixth (]uestion, which relates to the treating 1,\ Clark, an authorized agent of the i-espondent, 1 must now dispose of. After much consideration, and of douht ton. T come, with some hesitation, to the conclusion that tlir treating by Clark, an authorized agent of the res|)on(l(Mit. of the voter Jordan, was not an act within the terms of the ()()th section of the Election Law of l.S()8, because the licpior was not so given by Clark to Jordan within tlic limits of the nuinicipality, where the poll of the town of Whitby was held. I think that is the rear is to l)e soli] or given within the limits of such numicipality during the .said j)eriod. It is not within the limits of such Dii'/iici- palHiix nor witiiin the electoral division, nor within mvi such nuinicipality, but within such nuinicipality; and the question arises when there are more nuinicipalities than one in the electoral division in which the polls are heW, I.s7."i. SOUTH ONTAUIO. 438 what municipality is it that is rot'i-rrril to liy sz/c// wvniri- /ii'/ifj/ 1 Will it apply to tlu' <,'ivinj; of li(|Uoi' in the nnniiei- iiiility of Osbawa, althouj,'li a poll for that cU'ction is hcM tjicrc, while the ])oll to he vot<' eit}' of Toiiiiito, in which places elections are ^'oini;' on when the viite is to he given in South Ontario, for which division an election is also j^oing on upon tin.' same iii(h nninicipnHlii to he tlit- municipality "in which the polls are held." Which poll is it that is i-efeired to '. If a person were prosecuted for the penalty of SlOO lov viohitinu" this enactment, I think it would have to he iicid that sHi'Ji viunicipalitii ajjplifd to the muni('ij)ality ■ in which the polls aie hfld, " and that these words heing" governed hy the singular tfini of vninici/ia/if//, must mean the one in which the- poll to he voted at is hrld. I am only speaking of th»' (Kith section, which, it is said, applies to the/'/r/ only of selling c)r giving liijuor^ and not to the intent with which it is given, as in the ordinary cases of treating, and I feel no (lisposition to I'xtiMid the operation of a provision for which so compre- lunsive a gi'asp is claimed to have been given, so long as 1 do not see that aHV..'iK/.'h meaning must neces.sarily he attritiuted to it. ali;lw>/'\ioi sa>' positivelv that mv construe- tion of the (iGth section, as it i-t-spects C'iark s treating .Ionian at O.shawa while the poll at which the vote was given wa.s in Whitby, i.s certainly right. I give it with some degree of diffidence. Jjut I think it is correct, and I think it is the oidy sensible one which can be given to it. At the present, I deteiniine' that Clark, although an agent of the respondent, did not do an act in treating Jordan in Oshawa, wdiile he voted in Whitby, which was contrary to the GGth section of the Klection Law of LSUM ; ami my answer to the second (jUestion. thei'efoie, is against the petitioner, both as regareen proved f should liave heen ohHged to Ikuc lield, as in Chirks case, that the ,L,dass of brand v wliieli Mr. Hodson ^^ave to Mr. Thomas at C-oluinhus, wds not H(|Uor "ifiven in the nmuicipaUty in which the poll was ht'M, so far as Thomas wasconcei'ned.who vote(l in Osliawu. If Thomas liad not V(jted at all, 1 understand it would still be contendcfl Ity the petitioner that if lie liad liccii an aj^ent of tlu- resp(jndent, and tlu^ iinikeeper .uave tn Tlionias a i^lass of brandy at any place within the (dec. toral division, or even beyond it, if a poll happened to be held there at the time, it W(juld invalidate the election for this South Kid inn'. I can .see a way in whicli detiniteness can be y the idgid construction of the (JGth section, although there was no cori'upt intent, have made void the election. But the agency was not proved, in my opinion, as before stated. The eighth (piestion is, What is the effect of the re- spondent having had liquor sold or given to him at Ray's tavern in the town during the polling hours? I think the evidence shows, as a fact, that he did get spirituous or fermented liquor during these hours at Ray's tavern. mmmmmm 1S7:..] SOI'TH ONTAIUO. 435 Siiiiiui'l Hay Hiiys so. Ho says Brown callt'd foi- a treat. Ill' ilifiiik twico that IlijUor .^liiill hr siilil of (jiriiu and it is sold or triven wlien thei'e is [\ purchaser or receivei". and in that case the purchasei- or receiver is violatini;' the Act by joining" in tlu; transaction lit' sale or ,i;'ift as much as the actual seller or donor. A person cannot be both seller and buyer, ami if the x'ller is sulijected to a penalty, that, by no force of lan- -na^e or reasoning;', ean be made to extend to the buyer. Biitli may be specially nuide liable as both are e(pially culpable. The statute (h)es not here speak of a seller or H'iver, liut it says no liquor shall be sold oi- <.;'iven to (nnf j'crsnii under a j)enalty. I do not think that includes the lici'soii who buys or receives in the penalty even without till' words to any [)erson ; I think I uiay say I ha\'i' no doubt that it is the seller or giver only wlio is litUile, for 111.' is the ]iei'son who makes the sale or u'if t ; the other caumit makt' it, althou^'h he is a receiving party to per- fect it. I fully a(h)[)t the opinion of Draper, C. J. A., as given in the litest 'foronfo cnsc {aiitc p. 17!)), decided a few days ago. If a statute declared that no ])roniissory note should lie made without a stamp being attached to it under a penalty, would the payee be liable for the ])eualty if the staiii]) were not attached I I think he would not be. This (piestion I also deci- lasr,! * ; ' I i hfii!' > I if ■■ i fw M 1^. ■: i;| ^1 ^ j r-. ji.i 'S? j^- 4:{() I'UOVINCIAL ELFXTIONS. [A.I, caiuliilatc liimst'lt' at liis own t'xpt'nsf diaiik a ;;'lass of wliiskc'V or Ijc't'T, lie inust Ik- jK-isojially ;;uiltv of a cor- i'Ui)t practici', and Itcsidi's tin- loss of his scat ami ii pc- cuiiiaiy |trnalty, In- hccdiiifs incapacitated f»,f cin|it years fi'Diii licin^f elected ayain. Such results must make iiii- careful how a statute is cxpoundrd which lends t<> such liii,ddy penal conseipieuces. The iiiort; comprehensive the provision a^'aiust drink- ing and ti'catine' nt such a tiuie can he made, the hettri' it iiuist he for eh.'ctoral purposes and foi' all persons cnn- cerned : hut it cannot he made so ahsolute or un(|unliti(i| as it now I'eads, and as it is saiil it must he eousti'ued. So far as this case has now i^one, 1 nnist di'cide tln' whole of it in fa\'orof the respondent. 1 lia\e had ^lavr douhts, from which 1 cannot say 1 am yet relie\-eil. with icspect to the ae'ciicy (jf Thomas and Mi'. (Jihhs, althou,i,'li with respect to Mi'. ( Hhhs it may not he of any monieiic whether he was an au'eiit or not, for 1 do not think liis ti'eatin<>' himself was ae'ainst the Act. as I have hefore stated, and 1 have very U'reat douht whethei' his treatiii;:' the two connuercial travellers, straneers in the di\ isioii and not voters, can he an act jjrohihited hy the (i(ith sec- tion just construed; and liesides, there was no e\id(ii(r e'iveu of the kind of liipior which was taken hy these twe strangers ; there was nothing to .show it was spii'ituous (ji- fermented li(pior ; and I do not feel disposed to sapply such a defect of evidence, even if it could be done hy a fuller examination under the circumstances. With I'cspect to Thomas, he I think did, as I have before stated, violate the law, and according to the ctfcct (jf the (Kith section if he were an agent of the I'cspondent ; but I think he was not, although he was an agent of tin- conuuittee, but the conunitti-e were not the agents n! Bi'own. Upon that point, and al ;o as to the etlect ef Clark (who I find was an agent of the respondent) treat- ing Jordan outside the municipality in which Joi'daii voted, I entertain, as I have already said, a very consider- able degree of doubt, and I shall of course be very glad if is7.-..] StM'TIl ONTAIUO, 4U7 tlif pctitidiH'r will cfiny tln' nwittcr, Iiy way of i'f\ir\v, to the Court Hppointcfl to reconsider siieh (|uestioiis for their liidiv ilelilierate JuilLfllient. The costs of this j)art of the case iniist aliide the event of the tiial. I need n()t say that I sliall he uliliu-ed to report to the speaker, if I liave to report at all, that, thi' eviih-nce sliows there has heen a coiniiion ami iiotitrious viohition (if the Act liy tlie keeping- open of inns, jind tascrns, anre clearly the i^rounds ell which committees, dischai'^'in^ the usual functions of election committees, should he considered to he or not to he the ae-ents of the candidate in whose interest they arc acting', liecanse 1 am not sure that mv first imi)rcssiou eti thi "'ijcct was not the more correct oni', tliat a com- littce known l)y the candidate to he acting' foi' him, althou^di I ither appointed nor accepted hy him, shoulih iis a rule, oe held to he the committee of the camlidate, h . whcse acts he is responsihle, Itecause they are openly ill ling for him. and he is receiving the henetit of their sL-rvices and exertioi . The two cases to whicli I have specially referred in the juilginent deliverech adopt the view very strongly of voluntary conimittues and agents ,if^':: '.'■■• 4 liH ;«|f 4.'W PROVIMCIAL ELECTION'S. [A.D. Ixjing" so entir(3ly independent of the candid.iLo tluit lie is not in any way re.s[)()nsil)le for tlieir conduct, and no inioii at the time which I think to be cori'ect. Tiie petitionei' ai)pealed fi-oni the decis'on of Mr. Justice Wilson to the Court of ^vppeal — setting out among others the following ground of appeal : "That the keeper of the hotel calley, and wlio was a Voter in tliat municipality. During the time of the election he was working in Cshawa — both places, thoufh sepaivate municipalities, being within the electoral division of South Ontario. Clai'k, whose agency appeai-s to l>e sufficiently proved, went to Oshawa on the polling dav to bring Jordan up to vote at \\'hitby, and treated him in a hotel at Oshawa to a glass of whiskey. This was heM not to l)e a violation of the (idth section, because the liiinoi' was not given by Clark to Joi-dan within the municipahtv in which the poll for the town of Whitby was held. No <[uestion was asked as to the hon this section in the Lincoln cdsr {'(iifr p. 891), but I avail myself of this opportunity to add a f'-w obsei-vations. So far as keeping jjeace and good oi'der at elections is concei'iied, it can make little ditlerence, as between two cotermintms wards or uuuiicipalities, in which of them persons who commit a breach of the peace drank i\\v li(luor which overcame their discretion ani»ld or i;iven during tin; said period, under a ])enalty of SlOO against tlie keeper thereof if he neu'lects to close it, iind under a like ])enalty if he sells or gives any spirit- nous li(|Uors or di'inks, as afoi'esaid." So fai' theri' wouM have lieen no room for douht, hut in re-enacting" this section in tlu; Election Law of iStiS, the words relating to the pei'iod of divine sei'vice are omitted ; the woi'ds " to any person within the municipality"' ai'o iidded after " given," and instead of atlixing a distinct pen- alty u[)on the keeper for negh'cting to close, and another lieiialty u)»on him for selling or giving, the clause cou- clmles, "un:■ ■ I.S7.").] SOUTH OXTAHIO. 447 It is c'ontundetl by the appi-IIant tliat nmlt'i- section (50 tlic Liiviiig' of spirituous or t't-riin-ntfil lii|Uoi's In/ uni/ person ti) iUiv otliei" ])ersoii duriiii,' tin- "lay appi^inteil for polling' is iiiuilt' penal, and, Uy the Act of iNj-i, is a corrupt prac- tic'i'. On the other siile, it is insisteil that the section niiiilirs only to those who s(.'ll oi- <^ivi- in the character of kti'pcrs of a hotel, tavei-n or >hop in which spirituous oi' other fermented liipiors or drinks are oiilinaiily sold. It siciiis to me that we nnist either ccTSon icithin the limits of such -municipal it if during the said jseriod." IS?.').] SdlTU oNTAHK*. 449 The chinsc as it stood m-rs, in its tci-nis, gcncrnl i'noujL>;li til t'orliiil till' soiling' or /^Mvinif oi' li(|iioi' fuiywlu'ic in tlu* iiiiinicil»!ility ; l»ut T liavc no idea tlwit citlicr the most litfial or the most t'anoit'ul expounder would have so con- stiiu'd it. Where was the necessity tor tlie words now iiiM'ited' 'i"o my mind the reason is plain. Tlie whoh^ sfi'tinu as it stood atinuttedly ap[)lie(l oidy to keepeis of lintels, Arc. The tlan,i4'er was that thi.^ part oi' the section iiii^iit he read as forhiddine- only sel line' or L>i\-iiiu- //, ///,//• lniii. etfect. The third clianee is in the penal part. It formerly I'l'ad, •under a [leiialty of 8100 a;^ainst the kee[)er thereof if ;ic iiei;lects to close it, and uiiijer a like penalty if he .sells 111- skives any spirituous or fermeiitiMl li(|Uors or cast upon tin- owner of tlit> house, or the holder of the lia'nse, or the uetual niaiia^iT of tlie l»nsine.s,s, or the rjir on close reasoning? that an enactment that a house sliuH "he closed" is not e(|uivalent to one that it shall "not In; opened " or shall hi' " kept closed; " and it mii^ht not he found so clear that if a servant opened the house in the absence of his master, the master would be liable to the penalty. My object is, in combatini,^ tlu; contention that by the omission of the woi'ds " a^cainst the keepei- thercDf,'' the Legislature have relied on a strict consti'uction of the lann'ua^uje instead of usini;' an e.\[)i'ess declai-ation, to ex- tend to otlier woi'ds an effect which they had not before, to point out that by str-ictly construinjn' the .section, the first ])art of it would be ino[)erative, and that if it coiilil 1k' made ojierative at all, it vn'ouM lie by applyiny- to it a rule of construction depen. //., in adopting the law then in foi'ci? in England. The pass- age of the Act in itself does not, under the circumstanoes, im])ly an intention to change the law, or to do more than to adapt it to the changed political circumstances of the country. No obstacle exists to prevent the section in IsT.vl SOlTH o.VTAItH). 4.-. I i|Urs(ioii lu'iiin- !•( ;i;(inl('- treats, altliouo;li not shown to be for 454 PROVINCIAL ELECTIONS. r.\.D. tlic purpose of iiitluencinu,' vok's, would lia\'e avoidiMl tln' 'deetioii. < )n fui'tlier consideratioii lie seems to have inclined to tJhe view chat an-ency ]ia \'ic., cap. 2). The words used are certainly of extreme generality. Read literally they are sutficient to support the ajipellant's contention. But there are numei'<r tlie pi'oposition that we sliouM regard tlie tcrius of tlie (iiiietnient for which .section 0(5 was substituted, 1)nt that \vi' sliouhl presume that tlie Legishiture only intended to flian^'e the lnw to the extent that it has cleai'ly and posi- tively expi'essed. The (JJith section of the statute of liS()S was snhstitutcd foi- the Slst section of the Consolidated Statutes of Canaila, cap. (i. In each statute the section forms one of a group collected under the heay construction the designation of persons whose ihitv it is to ch)s(.; tlie houses. Tlu; reasoiiahh' c ostruc- tiou is tliat these persons are the kee{)ers of tlie houses. If tlie words " hy the keeper of such house" must he in- tio(Juce, Kiiil .'Jiiil ,/nin«u\i/, ISJiJ. Andrew Starratt, Pcfitioncr, v. Jonx C. Miu.Eit, RrsponihnL Curnipt jtrac/iri' — huc/i ihuriii n sipiirati indlrtmiiit — Cinim/ntiri' irhhtu-i — (triiera/ prowi'K lii/ minisfrria/ riiiiilii/atc -— liri/n r;/ or uiulin- li,. Tilt! riispoiKlciii was ve(l ; but as eaeh eliai'ge 'was proved hy a eredihle witness, tlie unitiil weight of their testimony overeanie the etl'ectof the respondent's denial; and on the eondiineo/i, J.) That tiie resiiondent was not guilty of undue inihieiici' as defined by s. 7- of the Election Law of IS()8, nor as recog- ni/.cd by the common law of the Parliament of Knglaml. ;•!. That to sustain smh a general charge of undue iiilhieiice, it wouh' he necessary to provi that the intimidation ivas so general and extensive in its operations that the freedom of election had ceased in consei|Uence. Tlu' petition coiitaiiU'(l the u.sual cliari^'cs of corruiii practice.s. |,s7.->.] MI'SKOKA. 455) Mr. .U. C. C'diiirroi), Q.C, mul Mr. Eratl for pctit'oiu'i'. Mr. liAltmi MrCurtlni, (,).C., (Did Mr. Jlrljunir iuv iv- spoiidi'Ilt. Till' cases disposed of liy tlie leai'lled Jud^'e Ul'e set iiut ill liis judg'iuent. \Vi I.SOX, J. — The case was very fni'y arn would be given on a different ground. The respondent, in a case of even and fully counterbalanced testiuKjny, is entitled to the presumption of innocency in his favor. The ([uestion is, whether the evidence can, on this record, l)e said to be eiiually l)alanced, so as to give him the right and benefit of all just presumptions of law an- severi'd from tlu.' election, ex[)ressed hy the voter to tln' candi\\\- liilU'l ti'stiliiniiy i)t' these witnesses, as tn hold the chfllu'es (.1 which they sevei-ally speak as sutlicieiitiy proNed in iiiw, ULjainst the opposinjij testimony of the responiKiit. I .hall. Itel'ore forming; any opinion on this pai'tof the case, I'liiisidei' tile other reinainin^' charge oi' (he like y'eneral (■liiiiacter, restiiiL;' on the eviilence, also of one witness on racli -'i'le, which is coiitainetl in the next charue icIatinL;' Im Haiker's case: the witness for the i't's|ion(lent lieine'the respondent himself as in thc^ two preceding' cases. [Tile learni'd .Ind^'e l-eviewed the eviilence in the chai'u'e ivl'cired to, and decided it was not prost'd. | The remaining' charn'e is tlie one relatiiiLj' to the respond- riit s spri'ch at Matthias' Hall, in the township of hraper. and as it is a peculiar and a \-ery iinportajit one, I shall have to L^'et the lantj;uajL;'<' used as accurately as I can. I must make out, in the first place, what Millei' really >ai(l, as well as I can extract it from the accounts of what he said. His own statement, esjtecially when it isad\'erse to him, may he accepted as a n'cnuine account of hi.s lanp;na^e. The res] londent says he used the words following-: " I was the i-ecot;'nized ministerial candidate, liaxiu!^' hecn iioiiii- uated hy the Reform jiarty. That I understood it to he the constituticjiial practice here, and in Kn^iand. for thi' .Ministry to di.spen.se, us far as reasonable and pi-acticahle. the patrona^'e of tlie constituency on the ivcommendation nf the individual who had contested the constituency in favnr of the (Jovenunent."' Hv said, " I did not state I wnuhl have the patronage whethi'r elected or not. J said I uiideistood the con.stant practice was, or, as ahoxc stated, 1 said the patronage would lie in me, and 1 would reih'css the grievance complained of, if electeil." The respondent, altliougli not now in words, in effect shows he did say nr U'ave those at the meeting to understand that he would have, as tlie Government or niinistei-ial candidate, the in- tliience or patronage of the Uovernment in the district \vlu.ther he was elected or not, because, he says, he told \fi i IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 ■ . .:;!:3 136 M 1.8 U III 1.6 ^- P7 a / ct ->• / V /A Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY 14580 (716) 872-4503 o t^^ f/j ^^ i j iff 404 PKOVINCIAL ELECTIONS. [a.d. thom he uiKUnxtood tlie practice was " that tlic Ministry shouhl (lispen.se the patnmage of the constitaenev on llic reeoinnien of Die V\'itt;> -;, says: " His sj)eech was that, a> he was the Governnie? t candidate, it was the interest ot the peoph^ t(* support him whetlier he was eh.>cte(l or not: that he would have the patrona^i^e and Mr. I^on^' wouM not — he was not the Govei'nment candidate." Assuming, iiien, that the ivspondent did use such lanouaj.,a' and on the occasion spoken of, is it an ofieiici' w ithin the Election Law, or is it an act or the e.vercisc nf undue intiuence, " i'i'co^'ni/eVI XCI A I, ELECTION'S. [A.I. lie fultill(' named or not), the numherof overseers would not hr vrcy numerous. The (hita ai-e not <^iven to me to enahlc me [,, state them accurately; hut I have no I'eason to I'tiicve that, actintf upon the rule which I have stated, the ixact facts, if 1 knew them, would estahlish a ease within the provision of the Act of an offer or promise of any kiiiij. i-espectin^f placi' or employment, which could possilily hr called an oli'er or promise, havini>; heen made contraiy tn that enactment hy the res[)on hehalf. make use of, or threaten to make usi- of. any force. \iolence or restraint, oi' inHict, or threaten the intlicliun \• my, tiuii- ;, vVJc. u«Uk' Ui)ti'e will of the per.son hy threats oi* hy improper iiiiiuis of any kind not williny fear, or apprehension of loss (jf any kind, must he a restraint. It is said to he, to keej) fi'(jm action hy any iiit'uns ; to hold l»ack ; to hold on ; to curli, check, repress, cdfice, constrain, dehar, prevent, ahridge, hinder. " I have pionii.sed to tcMrain him hurting any man's rei)utation."' —Addison. Constraint (Worcester's Dictionary) respects the movements of the hody only ; restiuint. those of the mind and the outwanl actions. The conduct is j-esti'ained hy particular motives. Resti'aint is an act of powei ; re- strict is an act of authoi'ity. " The will or the actions of the child are restrained hy i\\^ parents." — Cralthe's Syno- nyms. I refer to the leading ca.se of Hiujmnin v. Bumc/ii/ i'l White vV: Tudor's L b. 4()2) for a very full ami admirahle txjtusition of what is undue intiuence, and the variety of ways in which it may he exerciseil. I think laui^uage may he addressed to a hody of i-iectois which, hy a |tar- ticular peison, nuiy constitute a lestraint upon tiu- free action of tlie electors. Now, what I liave to determine is, whetlier the language in i|Uestion can he held to have heen a rrsfrainf upon or ai.7iinst any person in order to induce or compel such jierson to vote or refrain from voting; or whether it can he said the respondent, hy hi,s language, in any manner practised intimidation upon or against any person for the 31 468 PROVINCIAL ELECTIONS. [A.D. like purpose; or whether it can he said to h»' an act or the exercise of undue influence recognized hy the coiiiinon law of the Parliament of England, within the na'aniii;; of the statute. Too nnich strictness must not he iiiij)<)M')l upon election speeches. It is said " a hustings spccc h Jms hecome almost a proverl) for insincerity.' — Frcciiiaiis Federal Government, p. iS.S. But that will not sanction anything heing said without any check or restraint. When the respcmdent made the declai'atit)n he diil, which is the subject of this chaige, what was its natuiv, purpose and import ? It was to show the elt-ctA tliat. undei" any circumstances, he, the responderV|^HH|^ liavc the influence and patronage of the ( JovjuHJ^^nL in the electoral district, and that he would distribute them iunoiiLr the residents; and that under no eiivunistances wouM his opponent have any such favor or intluencc The ctlt'ot f(f that was to draw votes to himself and to withdraw tlicin (n- keep them fi'om his opponent ; and it is a fair conclusion that the respondent intended to bring al»out such a result, for it is the natural tendencvof the language wliicli lie \isr ' », on I think that is not a fair or warrantable course of ai., ,- ment to take; it does interfere with the free deliberation ainl choice of the electors of their candiilates. It is madelioju'- less to struggle against the influence and patronage of tlir Crown so to be exercised, and useless to vote for a candi- date who is in no case to have any voice or influence in such matters in the constituency. Whether such language will operate upon a large body of the electors, or upon what precise number it will operate, is not so much the question. It will undoubtedly opei'ate upon some of them, especially in this »" •■ . \ ?^ i ■^.l I I Iff -f if!' , tin 4^3 ~ ill ^^S w ^1 472 PROVINCIAL ELECTION'S. [A.D. lie tho result of the clcC'tioii. Tlu' jiowcrsof oiKci' an- imt to be used in the contest, an«l whether they aie usnl \,y a Minister, or a t'rien.] MISKOKA. 47:i (Xtfiit (it'll liki- nuturt' with the last cluii-;,'!', rcstin;; tipnu the iiitiiU'iicc, <»!• upon the all(';4«'il intiMH-st ami influence, of the respoinK'nt with the (ioNcrmiient or Ministiy of the day. whieli it is not iiuprolial»le the iespony the petitioner a^^ainst tin- ri'sponipon the said |i(tition. 1 have retaineNH. [ad. ■I ; ,. ■■'[ - . > '! i ^ • i ''' f ; [.if - 1 ' ' HjHmdrnt I caimot lirlp thinking; of; Itut tlu-y an- iiut my W'oik ; I Hill Mot atiswt'iulilc foi- tin-in. Tliat i.s tlu> tlccliiia- tioii of the wi'ittcii law, which is altovr my powfi-. I lia\.' !i(»w only to say I th'siif most siiicncly that this oasr will )>«' a))|)('ali'KAl'i:i{, C. .f. A. — I a^'ree in the conclusion arrival at hy my hrother Hurton, that the appeal should he allownl ami the petition dismissetl. But a piinciple as to the law of evidence was laid down in th'.' North Jini/rcw casr, which was referred to ami acted upon in the jtresent case, with reifanl to which 1 entertain some douhts; and 1 do not wish. l»y passiii:,Mt ovei' in silence, to he suppos«'d to concur in it, or to liavc been intluenct'd l»y it in heintr a l>arty to the Judyiiieiit now t,dven. I am not decidin;^' one way or the other. It has heen distinctly enoue said to he so ecjually balanced as to reiidei' it necessary for this respondent to invoke the aiil of that presumption, or, on the other liand, to entitle him to it. It is put in the judu^ment in tlie following shape : " The (juestion is, vvhetlu'r the evidence can, on this record, he .said to be ecjually balanced, so as to give him the right and henerit of all just presumptions of law and fact. That will depend upon the other charges which are still TH ' ■ » r-. fT isT'. MISKnKA. 47.-. to ln' ('on.siulaiK'c'f them us ai^ainst several witnesses — one, however, only in cadi case — I shouM then feel nlili;L^e<| to rely nioiv on the iiiipait ialitv anil trnth of the ;,'reatcr inunlter who testified ai^ainst the I'espondeiit, ami whose evidence ajid charactt'rs were respectively, for ivjialiility and veracity, as nnich to he depended on as those of the respoiiilcnt. I have already stated iny iipinioiion this pcint in the Xnrf/i Jiiiifi'i'i" msr." in ain)th(!r part of the same Judi,'ment it is said: " If this stood hy itself, as hefore stated, oath a^jainst oath, mid each side e(|ually credil)le, and no collateral oraccom- ]iiiiiyin;,' circumstances to aid ine either way, I shoulil hold the chai't^'e not to 1)0 pi'oved. But the other chai'f^'es, if severally sworn to hy acredihlc witness, and the united weight of their testimony ' Lo overcome the etl'ect of the respondent's woid (si '-ond oath). I may he ohlii^ed to attach such a de^^nvo of importance to the coml»ine(| testi- mony of tliese witnesses as to hohl tlie cluuifes to which they severally speak as sutftciently pi'oveeen the sole charge, for though the proof adduced by the petitioner sustained it, it was answered and displaced by the respondent's evi- dence. It is not asserted that this evidence in rebuttal was untrue, or that the respondent was a man not worthy of belief. I cannot follow the rea.soning which makes the fact that several independent charges were, prima fucic, proved — each by one witness only, and were rebutted, though by the respondent alone — a ground for convicting him of all, for no distinction can be drawn between them. And yet I cannot to my own satisfaction answer the arguments on which the judgments in this and the North 478 PROVIXCIAL ELECTIOXS. [A.D. Renfrcir ease were founded, and I am relieved from the necessity of so doing, as on the other grounds taken I fully concur in the judgment of my brother Burton. Burton, J. A. — We are fortunately, in this case, not embarrassed with any difficulty arising from a conflict of testimony. The learned Judge finds expressh' that there was nothing in the evidence of the respondent, nor in the manner of giving it, which could or did excite any suspi- cion whatever against its perfect ti-uthfulness, whilst in commenting upon the evidence both of Hill anl;Pi«l^i< rl. P" FffiPfff 1875.] MUSKOKA. 479 attemltHl with .such highly penal consequences as the Legis- lature has declared shall follow the infraction of several clauses of the Election Act. The learned Judge reports tliat he should have found Itoth these charges disproved if there were no collateral or accoiiii»anying circumstances to aid him either way. He finds all the other charges, with the exception of the last (to wliich I shall presently refer), disproved, which should, 1 venture to think, have some weight. The collateral circumstance which turned the scale, and iniluced the learned Ju, usually so well ascertained as to leave no room t'oi- m»'iv numei-ical comparison. I do not understand that there is any conflict of evi- dence as to what occurred at Matthias' Hall ; the speech, as proved on both sides, is substantially the same. The weight of the evidence, then, so far as it is in- crea.sed by what the learned Judge calls its united forcr. is confined to the two charges in respect of Hill and Suflerin. There is a peculiarity about these election cases, that each charge constitutes in effect a separate indictment. It .seems to me, therefore, that if, in the opinion of the Judge. there is not sufficient evidence to support the chaige, oi-, in other words, if evidence is given on both sides, ami the Judge gives credit to the respondent, and so dismisses the charge, the respondent cannot be placed in a woim' position because a immber of chai-ges are submitt(Ml, in each of which the Judge arrives at a similai- conclusion, ur that a limit could eventually be reacheil where, although his conclusion upon the particular charge in aildition to the others would in itself be favorable to the respondent, the Judge .should feel called upon, by i-eason of the multi- plicity of the chai'ges in which the respondent's eviilence and that of the witnesses opposed to him have been in conflict, to come to an adverse decision by reason of the c inmlative testimony which he has previously discredited. To my mind, an accumulation of .such acquittals should, if any wei' to Mr. Teviotdale's evidence, was, " He would have the patronage, as he was the choice of the Govei-n- nient, he wouM have it whether elected or not elected ;' a*lding by way of explanation, as I understand it, " It was the laying out of money on the roads ami appointment of overseers." There is a slight difference l)etween the respondents version of tliis speech an(J that of some of the witnesses ; but, taking them in the strongest way against him, I have been unable to convince mj'self that they constitute a corrupt practice, or that they difi'er substantially from ■i a it Ai< :l- ?-> mim is7').l MUSKOKA. 48;} wliat is constantly done l)y candidates, in impressing upon (lectors the importance to themselves of being represented hv a ministerial candidate. The learned Jud;;e holds that uch language cannot aiiiount to an otter or promise of any plaee or employment, (ir ii prt)mise to procure, or to endeavor to procure, any jiliice or em])loyment to or for any voter or other perscm, within the 1st section of 'Mi Vic, cap. 2, and therein wv a^Mve with him ; hut he holds that it amounts to unihu' iiitluence within the 72nd section of li'l Vic, cap. 21, or aci'ording to the connnon law. To prove an ottenei! within that section, it must he shown eitlu'r that [)hysical force was used or threateiuMJ, or that loss or damage was caused or threatened upon oi' ai;jiinst some [)er,son in order to in as is atti-ilniteil to the respondent in this ca.se woUid he to i-endei- a law, haish enoULfh admittfUy in many of its provisions, intoleral)le. What the respcjud- ent is alleged to have said was an ariiijument or icason tor the electors supporting' him lathei' than his oppouiiit, if tliey helieved his statement that he would he nioic in- fluential with the (Jovernnient in .securing local henetits, and in reihcssini;- th(^ particular i,qievances of which they com])lained ; hut it wt)uld he goin*^, in my opinion fur beyond what tlu; Leoisli;ture ever contemplatetl, to huld that self-recommendation of that kind on the pai't of a candidate was to sul)ji>ct the electors to have the election avoided, and to expose him to the disgrace of disijualitica- tion for any oflfice in the gift of the Crown, or any niuiii- cipa' office, for eiglit years. I think the evidence fails toestahlish either of the two first charges, and that the remaining charge is not a cor- rupt practice within the Act; and adopting the language of Mr. Justice Willes in the Lic/ijleld cnsc — "considering the extreme solenniity and weight which ought to bcattri- bated to an election that has, so far a.s one can judge, in all its substantials been regularly and properly conducted 1«7.'),1 I'KKI, 4No — lookiiijf to the amount uiul \vt'i JuKnuf/ Lo/i.'i. vl.s.sr//(., iSTo-O, p. IDS). 9i m :l pi«:h:l K I Bkkouk CiiiKF Jrsiici': Du.m'ek. BrAMI'TON, :^)lil to .'il/l, 'liiil l.'/t/i Jiiiir^ ]S7f>. Before the (!oriiT of Appeal. Toronto, lllh Drnmhir, ls7-'i. :."/t/i ./(inunri/, 1S7(!. William Hurst, J'etitioncr, v. Kennf:th C/HIsholm, Hcspondcnf. Corrupt prnrtiris — Partial diiiinl- Apiicai- Furt/n r irtdina — Xf Appciil Imd \wv\\ ])l!ui'cl in possession f)f iill till! c;liarj,'(!s iigainst tlio respomU-iit, uiul of the cviili'iici; III supjiort of tlicni, anil liad rccoiniiicndi'il tlii; witlidniwal of the pcti- tioii, anil no siillicit'iit additional grounds having heeii shown for miuIi HiiliHtitutioii of petitioiuT, the order for the withdrawal of the petition Hhould lie granted. The petition contained the usUcal cliai'o;t',s of oonupt practices. Mr. JiiiiiJflirr mitf ^fr. Emit for petitioner. Mr. Jiithidn ii/k/ Mr. Jitmcs F/iniiii;/ for I'cspoinlciit. TluM'vidence sliowed that tlie resjiondeiit, in coinpjmv with one Martin Maddit^^an, wlien canvassiiiLf a voter. Daniel Mullen, was ^dven to umler.stand that Mullrn wanted money for hi.s vote. Mullen s wife al.so .swore — " Mr. Chisholui said, if my hushand was put out of work for him, he would find him emiiloyment ; if he voted for him, and he wa.s put out of his winter's woik thi'ouo'h liis means, he would Hnd emjiloymeiit if he voted for liim. ' The respondent swore that he did not make Mullen any promise, or oft'er him anythini,'; that he tc^ld Mi-s. Mullni that it was at^ainst the law, and that it was impossihle to pay for a vote; that he had to take a solemn oath if eleetcd that lu' had neither ])aii)e!il from this decision of the iearneil Chief .histiee, and s"l out aiiionL,fst others the followiuLC as one of the Ljrounds of a|ipeal: " Tluit the judLjnient of the said Chief Justice wiis erroneous in tindin;L; that the evitlence of Daniel Mi>!i('n, Mrs. Mullen, Michael Hu^n* and Mrs. Hu^o, was uncon- tradicted l)y the evidence of the sai!e Court hear the atlidavits of the said respondent, Martin Maddii^an and .lohn Mad- li^an, s[)eci1ically ro- Miises. The atlidavits above refiM're.C. ( Attoi'iiey-Cicncral of Canada), tnul Mr. /lillnnir for res[)ondent. Mr. /Lrfor Cminron, Q.C., and Mr. JJca///, Q.C., for [)t'ti- tioncr. IvKll.VUDS, C. .1., in delivering the ju.■ visitcil l»y very scvfro penalties. He liiul ciinniiuniciiteil with the learned Chief .liistice hy whom the |»resent case hail heen tried, and he (Cliicf flustii'e I )r!i.|iri) hail said that it' the respondent and the witness Maddiyan iiad niad(i the explicit ut it not haviuLi,- heen made, he was olilit;e(| to decidt^ aLfainst the i-espondent on the evi result of any corrupt ai^frccnimt, or iti consideration of tin- witliilrawul of any otlusr |M'tilion, I ;,M!intt'(l tlicaitplicatiun. " I lii'Lf fuj'tlicr to report that on the lifai-ini,' of sucli upiilication, one (JcorLjr Sliarpc, an dei'tor, applii'tl to Ik; suli->titutt'<| foi- the petitioner; luit as thi' Court of Appeal liail liiM-n phieed in possession of all the eharjjes, ninl of the evideiKM^ whieh had Iteeii addiicrd in siipjiort of them; and hail, with such information liefoi'e them, eonsiden'd it u tit ease fi»r withdrawal, and had reeummended that cnurse to the petitioner, all.hou^h he had not availed him- ,si'lf of the j)ermissi(»ii within the piesei'ilied period ; and as no sutlieient additional ^^'rotnids weie in my opinion shown for such siiltstitution, in the exercise of the discretion visted in nie liv the Act, I decline(l to allow such sulisti- tution." (\) Jniirnnl Liiji^. As>in.. lS7'>-(!, n. I(l7). LINCOLN {■!). B J \ H Dki'oue Mi{. .) I 'STICK I'attkkson and Mk. Vicf;- ClIANCKI.I.oH l>l,AKK. St. Cathakinks, lltli to l.ilh Si fjlcmlH r : 4th ami fdU Jhrimhii; /iS76'. Toronto, :ii)th Srj,t, mlur .- i;th, j:!,-,! idhI Hith Drrrrnlur, IS7'! : :.'lst F'liriKii!/, jsrj. Nathan Hlnuy Pawlixo cf nI, J\li/ toners, v. John ChAIU-KS RyKICU'I', lu.yxuK/nif. Wnirrr of pnrlivulitr't — A iwiiilniinf -('iiinuhitirc (irtn uf hnhi rii — ■{'.) Vic, i\ 10. M. cl7 — A[l'('>'/i)i',l I'l'siilf 0/ ii--/i'/.s ht fitiiaji votis ~ lnt(ilm nrtiliriilf to Sp' i(kf r—Sfoli II hilllntn — CostK. Thu rcspoiideiit WiiH cloctcd liy a miijoiity nf '2'A. and 011 the trial of an clfctioii iK'tition, tiled to SL't asido lii.s idfitioii for i.onuiiL jirattircs and iili^ial votes, cvidunce was given l)y botii .sides on a eliai'ge not |)io))ei'ly set out in tlie petitioners' })ai'tit'ulai's of corrupt ]>rai,'tiees. .\t tlie close of tlie evidence the resiiondeiit olijected that the charge was not in the partienlars, an'., the opposing candidate, the etl'ect of tli(^ bets beim.' tluit in order to win the bets, the voters must vote for the respondent : llehl, tiiat these bet.s were for the purpose of getting votes for the re- spondent, and were corrupt jiractices; and that in connection with the other eorni|)t acts i)r<>ve(l as set out above, they affected the result of the election ; and that tlie election was therefore avcjided. The Court cani.ot grant an interim certificate declaring an election voi'i, as the statute contemplates only "lie certificate to the Speaker, ciTti- fying the result of the election c.ial. During the progicss of a scrutiny of votes, certain ballot papers, counter- foils and a voters' list were stolen from the Court, which had the effect of rendering the proceedings in the scrutiny useless. And in disposing of the costs, the Court ordered tiie respondent to ]i;iy the costs up to the date the election was avoided, but that, under the circumstances, eacii party must bear his own costs of the scrutiny. The (.'lection of Junufiiy, InT-'), having- been declaied void {nntr, ]). •SOI), Ji new eh'ction \»'a.s held on the ISth and 2.')th Fehruaiy. l.S7(), at which the respondent was declared elected h; a majority ot" 2.S. 'V\w ]K-tition was thereupon tiled, containino- the iisu;i] charges oi' coi'rnpt practices, and claiming the seat for the luisuccessful canction (i7, subsec I , ol Vic, c. 21, an oH'cr or ])romise of valuable consideration to a person on behalf of a voter, or to a ])t'rs()n in order to induce a voter to vote or refiain from voting. We hold that Junkin was an agent of the ivsjjondent. The acts done by him during the election contest ai'e uu- c[Uestionably sufficient evidence of agency, if they had the re([uisite recognition by the candidate oi- his agents. We thiidc this I'l'cognition is shown both by the tiviilenee of the respondent himself as to his calling on his friends at his nomination to work for him — not merely to vote for him ; liy the fact, which is apparent from the eviut am not positive ; we were all to do our best at the elei.'- LS7().] LINCOLN (2). 49: tion ; think there wore fifty peoph» ])rosent ; liave nci recollection of scrutineers heing a]»pointe(l ; was at a com- mittee nieetiuijj at (.'ain's, for St. James' Ward, a week or two before that ; we were looking over the voters' list. When I met Brownlee on the nii^ht hofore election I hful ahout !? 1 ,000 in my pocket ; I went out to uet men to het ; I iHd not know whether the men were Ncclon or Hykert incii ; wanted to bet they wouM vote for Neelon, oi' foi- them to bet they would not vote foi'Rykert; lielieve Brown- Ifc ti'ot some men to bet that way; do not recollect how iiiiu'h money 1 fjave Browidei' to bet with : I think Biowidee j^^ave me back all the money except :?■">;") ; the licts were $5 and SIO ; do not recollect how much I lict myself ; expended aliout S50 oi- 8(50 in l)ets ; have no iccolk'ction of saying it wv^ S()0 or 87" ; I sent Brownlee tn make bets; he told me he had maject the person advancing the money had in view, and it was but reasonable to su]:)pose it more or less affected the result of the election. Then again, this same gentlenum advances money to persons to pay their income taxes, which payment gave them a vote, and it is a reasonable conclusion that the election was more or less affected by the.se nine voters who.se income tax was paid. Then there are these three men going out and ]nirsuing a system of betting for the purpose of getting votes, and it is out of all question to say that this did not affect the election. Aiken says he thought by doing so he would get outside of the law, for he knew he could not openly brilje any voter : that is the system of bettiny n'S[M)n(lent. He did not express any opinion on the point as to Aiken l>einrroirni((ns cane,'! A.\)\>. Fl. ;}|(),) Th»! judgments in a[)peal from the Registi'ar are ic[i(irted )u>d, p, .')()(). During the proci'ciling.s licfoiT tlie Registrai', certain 1i;i1ImL papers, cte., n'(|uirc(l to identify a number of votes which hud been declaied i)ad, were stolen from the Coui't.* I)()th parties thereupon made admissions before the le'gisti'ar as to how the \'oters who.se ballots had b(>cn stolen had voted, which admissions the respondent after- waids sought to withdraw. \ special case was then settled by the election Judges for the opinion of the ('ourt of A])peal : re I/mcuhi Elect inn /'////(//(, \ .\pp. R. :^0(). The (\)urt held the admissions weie not biniling, and that no evidenc(^ could be given to show how the voters had voted. The proceedings were then teniiinated by an api)lication to the election Judges to certify the I'esult of the trial to the S|)eakei', and to dispose of the costs. After argument, the judgment as to costs was given by I'.VTTEUSOX, J. A. — 1 think that theic are abundantly >uHicient reasons for not giving either party the costs of the .scrutiny; but the respondent .shouM jtay the costs up to the time when his sestt was declared void. Theceititicate to the Speaker, after setting out the pro- ceedings and the result of the election trial, set forth the following special ix'jiort: " And the said Judges further specially report that while the scrutiny was proc(!eding before the Registrar at the Coui't-house in the city of St. Ciitharincs, some of the papers which had been jirocured from the custody of the Clerk of tlu^ Crown in Chancery for the purpose of the ' The Iteport of liio Ci)iiiini.ssioii«r ni)i)()iiiU'il to iiivostijjate tho theft of the ballott* «[|| lie fi)uml ill Oiitiiiici Sfs.i. I'apur, No. ;{_', ISTfi. WW 'im ■ ' -S i'. ■im$mii 600 PUOVINCIAL ELECTIONS. SSJIik yj^ajTi -t f' r mi — [a.d. trial — namely, some ballot papers, some eonntorfoils, ainl a voters' list — W(ii'e stolen from the said C'oiirt-liousu, uini wei'(! not reeoveied ; and that liy reason of the loss nf those papers, it was impossihle for tlu; Judj^rs to deter- mine foi- whom the majoiity of good and lawful votes were polled at the said tilcction." (12 Jouvtuil La/is. Jx.sr///., I>S7(), p. 20!».) LINCOLN (2). SCRUTINY OF VOTES. Before Mr. Justice Patterson. Toronto, i67/) Novnnhn; /S77, to .lis/ .luhj, IS7S. Nathan Henry Pawling, /'ctifioHo; v. John Charlks Ryklrt, lia^poadcnt. Sellinfi nnd (jirinij li(/iior iliirimi pitHaiij hnurs Tniyrn-krcpfirK — Aliini - (Jiuis iirnliiniili - Sii/i/ioriiiiii /•(»^■ lii/ o/hy the .statute, (./tuii's Funl'n ro/i ). Where evideneo was given of T)ai'oI admissions made Ly certain votois, some years Ijefore the election, that they luid heen horn in a foreign country, and also evi* oi' the Act which are essential to (|uality him , to vote on income. (Jaiiiix li. UL,'h I'eceiviiii,' rout for it from a ti:iiaut, is not ipialitiud to vote. {Jolin Olark'i rolr.) V\ here a voter oilered to vote at a poll, hut diil not ask for or put in a leiiihreil ha lot pajier ; llili/, that till ISallot Aet rt(|iiireil the vote to lie j^'ivell setietly, aiitl that the part)l ileelaiatioii of the voter as to his ' iite eoiiM not he received ill older to athl it ti> tlie poll, ((liui'ijr Sii'Drd's roti .) 'riic scnitiny of \i)ti's icrmrtMl to on \)\). 4})'}, 4f)f), liavinej tiikcii phu'e Ix't'ore the ll(\L;i.striir, {i[)|)(_'als tVoiii his dt'cision.s wnr heard hy consent lict'orc Mi'. Justicu Puttci'.son. M Mr. Ifo(/i/iH!i,Q,.C., for jxititioinT. Mr. Dr liunc, Q, C, (tinl thr JusjiinK/rn/ hi /ni-.-ioil, for tllO icsjjondent. JAMES Ki^hd's vote. (Li(jl((ir at.'ir.'i.) A numlicr of votrrs wlio had o-jvcn or [lai'takcn of hi|Uor at taverns (hirinj^ polling hours on the polling day were held dis(|ualiried for corrupt practices. The follow- ing judo'iuent was given on thea[)peals aliccting this class of voters : P.VTTEHSON, J. A. — Some of the cases in these ap))eal.s ruisi! the iiuestion of the construction of .section .'i of the Act i)!) Vic, c. 10, which reads tiius: "No spirituous or fermented liijuor, or strong drink, .sjiall be sold or given at any hotel, tavern, .shop, or otlier jilace, within the limits of a })olling district, duiing the [Hjlling day therein or any part thereof, under a penalty of SlUO for every offence ; and the offender shall be sub- ject to imprisonment, not exceeding six months, at the discretion of the Judge or Court, in default of payment I ■»(I2 I'KOVINCIAI, KI.ECTIONS. [Al, of such fini!; aii vitiated are of thretj chiss(!s : 1. Tliost' of tavern-keepers who sold or ^av(! the liijiior. 2. Tliose of persons who treated at taverns. M. Those of persons who Wert' treated. The first an- stituteij," in any narrow sense. The new section is in puri matcriii with the forniei" one. ft merely varies the teniis in which the ofience of sellinj^; or ^jjivinj; li(|Uor on polling- day is ])i'ohiliited. It I'etains the .same penalty, thuunh it adds nioi'e striuirent UHsans of enforciu'f it. It does not. in terms, repeal sec. 0(5, and though it does not, in tmns, enact that the new section is to he read as sec. (id of the former Act, I think the expression u.sed is at least as efl'ec- tive a.s that form of amendment would have heoi t(» attach to the infringement of the suhstituted law all the consetpiences attendant upon the infringement of the original law. In other words, I think the new law must he suhstituted in the reading of the Act of 1875, as well as in reading the provisions for keeping peace and good order at elections, contained in the Act of 18(j8. It was argued l)y Mr. Bethune that as sees. 1 and 2 of the Act of 187") dealt with acts expressly reciuired to have been done with corrupt intent, we ought not to import into sec. 8, which .says nothing of intent, tlu; im])licati()ii of cori'upt practice derived from the Act of 1873. This argument, I think, is untenable for two reasons. The Act is not providing a general .scheme, or dealing generally with any cla.sses of otiences. It is an amending Act only, h:":' I.s7ut it liainicii.s that tliOHo tlirt'c Ht^ctioiis arc classfd in tin* amcjidiiiLj Act mxli-r the licad oj" coiiupt piacticus — a ciirumstaiicc which, as sliown l)y the |ii('si'iit Chict' .liisticc of Appeal ill his juil^Miicnt in tin- Smi/h On/tirin c rs* (12 Can. L. .1. ii'l ; s. <;.. (ni/i\ p. 4')')), may he taken into accotmt in (li'tci'iiiiniiiLf the iiiimciliate and special ohjtn't the Le^xis- latuie had in view ; and which, in the prosent case, cer- tuinly does not di.ssociate tlie clause in ipiestion from the .suhjcet of corrupt practices, showin*^ rathei'that in rc-cn- lu'tiiii; the law in its altered shajte, it was in the contom- jilation of the Fjeyishituri' that, in the application of it, an ntleiice a]ijfainst its [ii'ovisions would he a coirupt practici;, as it had heen heforc. It is, thei'cfore, in my opinion, clear that livery tavern- keeper, or pel-son actinia in that capacity for tlie time, who sold or t^a/e liipioi's at the tavern within the hours of pollinj,,', committed a corrupt piactice. Then, as to persons who wert' not tavern-keepers. 1 have no hesitation in lioldinuf that it is the sellino; or Ljivino- only, and not the receivino-, which is pvohihited under th(i pi'ualties attaching to the violation of this law. The words are ])lain and unanihiifuous, and cannot be extended to include accessories. The penalty is upon (/ic ojl'imlrr ; ami the olfender is olie per.son who sells or i^iNcs. In this respect, the statute diti'ers from the Kniflish Act, 17 A: IH Vic, cap. 102, sec. 4, which makes acceptini;- or takinj^ an otfence as well as the section wholly to the innkeeper would prevent its reaching the case of a ])rivate ptM'son who might, on the polling day, broach casks of ale or s[)ii'its for the public use of all comers ; and in the Snath (hit 'rio cisr, Drapi'r, C. J. A. {anti\ p. 4:}!)), did not take e.Kactly the same view of the section as the other members of the Court, his opinion l)eing that it extended to all persons who sold or gave liquor in a taven.. In this state of the law, the amending Act was passed. It prohibited the selling, iSrc, at any Jiotc/, tavern, shop, or other p!i fc within the limits of a polling district. Now, hotel, tar/rn and shop are evidently ])laces ejusdem r/eneris, and the general words, " oi- other place," nnist therefore be coniined t^ places ejusdem generis. In this pai'ticular, the Legislature has attirmed tlie existing law, as it had been construed by the Court in the South Ontario case, .so far as the ])lace of selling or giving was concerned. There is no prohibition in the clause against .selling or giving at any otlier place. It probably was considered is7<;.] LINCOLN (2). 505 sutlifieiit for the purposes of this enactmont, and with tho ohject of k('e{)inn' peace and good order, -so to liinit its operation. A i)erson givir.fTj under any otlier ciicunistances woiilil apparently h-^ in one of two positions. He, would either do the act in perfect innocence, as in tlie case of irivint: a glass of beei* or of wine to a friend dining at his talile: oi- he would do it, as in the suggested case of broaching a cask foi- all comers, or even in the case of cai lying it bottle in or'hi' to treat an occasional tippler, in a way that would probably amount to bribery. The object of the enactment seems to be the same as in the former case, while it is so framed as t:. avoid the ditli- culties that attended the attempt to construe the earlit;r clause. T\w leading idea is tliat liquors kept for sale at hotels, taverns, shops, or other places whei'e li(iuoi- is usually sold, shall not be dispensed on polling days, either In- selling or uiidtM- the pretence of giving, The mandate points to that (object; anti it cannot be disobeyed, except by the act or permission of the person in whose control tlic liquors are. That person is the offender, if the law is (li-5ol)eyed. If he obeys the law and sees that none of lii.s liquor is sold oi- given, he has done what the statute was passeil to insure. It is only after a violation of it on his pai't that a second giving, such as occurs when one man treats another, can take place. I do not think such a secoml giving is aimed at by this statute, which attaches 111) iirualty to the jnirchasing, or accepting, or drinking. I ilo not ihink it was ever intended by the words before luc to make two offences — not one joint offence, but two sepiiate offences — out of what is in reality but the one act. (Jiving is, in my opinion, prohibited to prevent an evasion of the prohibition to sell, and, like its companion word, points to the vendor only. If intended to have a more general application, we should not find it limited in its operation to the walls of the tavern, or C'...inter of the drinking booth, or other place for the sale of liquor, as it is in this clause ; and we should find, what is here wanting, a penalty attached to accepting or drinking. I it: n HI ' I i III I |el 4 fni '' Bill «> r,o(i PROVINCIAL ELECTIONS. [a. I). Some observations which 1 made in the South Ontario case (12 Can. L. J., 22"2 ; a)t,te, p. 452), seem as apposite b> the present law us to tlie old sec. ()G : " It would seoin a faulty rule of construction, on wliicii we should hold that the Lei,dslature, in contem{)lation of a tavei-n-keepei' dis- obeyin<.j the law l)y])arting with litiuor, meant to p)'ovi(l(; against such disobedience by the further conmiand, that if he did -so disobey, the I'ecipient of the li(|Uor must JU)t give it away again under a penalty, and particulaily as no penalty is attached to the act of receiving it. If such an intention existed, it sh Hare, 57; s. c. 12 Jur. 7(i) ; The Arorn. (2 Abbott, IJ. S. 434). PvrTEiisoN, J. A. — In the case of nine voters objecttMj to as being aliens, it was estal)lished that each one hail lieen l)Oin out of the Queens allegiance ; and it was then co.'itended that the burdtui of pi-oving natuialization was f'fist upon the sujiporters of the votes. This cf)ntention was j-esistcd on the groiinds that each voter had taken tlie oath presci'ibed by tlu' statute when his vote was challenged at the ])oll, in which oath he had sworn (amongst other thing.s) that he was a subjcict by biith or natui'alization. In each case it has been pr(,>ved that the voter was not a subject by birth ; therefore, it was argued, liis oath must be understood as affirming that he was naturalized ; 1 r hn li pi I,' i S i I ')il.S PROVINCIAL ELECTIONS. [A.D aiul havinsf thus professod to have voted as a natural i;^ed snliject, it is of no avail that l^.e was not horn a sul')(,!(!fc, but sonic evidoneo nnist he ujiveii to sliow that he waa not naturalized. To aece. to litij^ation by producing that ovidonco ; while the recjuiring his adversary to estahlish his case becaus(! the; affiniiativo lay on him, or because there was a presumption of law against liitn, would, if not amounting to injustiiM*, at least he productive of expense and delay. In order to prevent this, it has been establislied as a general rule of evidence that the burden of proof lies on the person who wishes to support his case by a particulai- fact which lies more peculiarly within his own knowledge, or of whicli ho is supposed to be cogni/ant." Our statutes for tlie naturalization of aliens liave, 1 believe, invariably provide ground that they, havinif l)een aliens, had not Ixfcii nio- perly natui-alized, because; the oaths required by the .Vet ol 1(S71 (''}4 Vic, c. 22, s. 2, Can.) had been administered to tluMu by a Justice of the Peace for the town of 8t. (/atlia- rines, a{)j)ointed under commission for the town only, Jiinl not for the county, and ha. The description •Justice of tin- Peace of the county," is sutiiciently descriptive of a Justice who is not a Justice/*'/' tJie whole county, hut only for a part of it. It would he an anomalous state of thini^s if a person living- in St. ("athai'iries could not have etlectually tak(!n the oath liefore a Justice for the town. And yet that would hi' tlie effect of our holdinn' the present oaths to have heen administered without authority. No such c(ms('([uence was contended foi- in the ar<,annent of this matter. The objection urged was that the Ju.stice could only act within the town ; hut the statute gives him no li^ht to act within the town unless he is a Justice of the county. I have no doubt that in furthei'ance of the object of the Act of 1N71, which was to eiuible aliens to put on recoi'd, in the solenm form of an oath, their purpi)se of transferring their allegiance to the British Crown — but which gave no effect to the oath until a further act was ilotie, by tiling it of I'ecoi'd in the designated office — it is our duty to irive as liberal a construction to tin; statute as its language will fairly bear : and not to hold, without nec(!ssity, that the steps taken in good faith, and in literal ci)iu{)lianee witli the law, ai-e nugatory merely because the expression "(>/ tlu! county" is capable of being read a.s meaning "lor the county ;' and whei'e the function in (juestion is not one of tho.se belonging to the ollicer as a Justice, but one belonging to the individual designated as ptTHoiuf (Icsujyiata: for a particular purpose. 1 I i nl :)l + I'KOVINCIAI- KLKCTIONS. hi. ft; If A -lilt i I'' 'fi [A.T) I thcnit'oiv hold tliat thijse persons ai(^ ciititlofl to vote as naturali/i'il subJiK't.s. JAMKS |{. (iUAY's VOTK. The voter was assosseil for property suflieieiit to Vie., e. 1(», althout^di he stated he had it with liim at the time of votiuLT. Patterson, .1. A. —I hold that the voter appeaiin;;' ( n the voters' list and on the poll-hook for propertv only, and that (p.aiitication having,' lieen successfully attacked, the pi'titioner has a riL,dit to show that the voter had ii e;ood rii^'ht to vote on imtome ; and that the fact of the voter beinjj^ a.sse.ssed for 8+00 ineome, does not throw the oinis on tlie other side to show that he liad no riv^dit tn vote on income, because the income (pialitication includes the payment of taxes het'ore .'{1st I )ecemhi'r of the [)i'evious year, under ;{() Vic, c. 10, s. .', and in this particular case, tlie production of the receipt, undi-r s. (i, suh-sec. 2. The evi(h'nce sliows that he produced no ivei^ipt to the Deputy Returnini;' Otlicer, and 1 liold that there is no presumption that he haK' (|iiiilit'K'atii)ii l»i'iiiif siicccssiully attackcil, a votti iiiav ^'l()^\• that he liad aiiotlu!!' «iualilicat.i()ii. I tliinis that tilt' vote having liccii /n-inin /'ccir \\"^n\i\v\\ rcccivfl. iii'l tlicrt'l'oii- till' hfjMity ll('tMnrm;^f OtHct'c liavinij; lia«l iiiiisdictioii, tlit'ii- is iiotliiM^' citlit'i' in tin- letter or tin ^pil'it of till' law til |»i't'\riit the vote lu'itiy' siippoi'trd ni: ilic unaiml of a inialilication wliicli, if tin- votrf had \i)t.t d 111 il orii^iiially, would have iiiadf it nccfssarv foi- Idiii I" vdir ill aiiotliiT pollinn- division. \'o(c licid ^oud. JOHN ci.aKK's \'(>TK. Tlir voter had niininally hi'cn a sipiattn- on ( 'lowii land adji.'ininLf the W'clhind C'anal, hut sonic years piior Id till' rlt'ction had rented it to a tenant, wlio then oeeiipiod it and paid him rent for the same, the voter not personally nccupyind' (he property, lie was assessed as dwiirr, and liis tenant as oeenpant. I'aTTEHSON, .1. A. — The vote of dolni ('lark is ohjected t(i on tlif djound that he is neither owner, ti-nant noi oc- cupant of the land on whieh lie (pialities. It is a small piece of laiul which heloiiLis to thr ( 'I'own. .John C'lark and his hrother dames aeipiired the rinjit to the po.sses.aon of it from a former possessor, vdio eonveved it l»y deed {<> tlieii . The evidence is that John l»oni;iit dames' ri^lu. Iiut no release from flames appears to luive heen executed. Tile \alue would not entitle two to vote : hut it is ,s]ii>wn that John oc,eupie(l the laml exclusively of James, and for Millie years [last had let it to a tenant, who pays him lent, and that he has not Ikh'U per.soiially oceupyine\ By • 1- \ ic.. e. 2 1 , s. ."),tlie \()ter must he actually and Imiid fidr the owner, tenant oi' occupant of r<'al |)roperty, and nnist he ciiteicd on thi! a.s.sessment roll as the owner, tenant or h; IMlOVINriAI, KI.KrriONS. [A.I. fu 11' ".If-?] •^! l>V the assesMmciit law, M2 Vic, c. *{(), whi«'li rt(tciv(;(l tlit- royal aHsciit on the saint' ilay as ilw. Ehsction Act. the jisscHsoi' was (h. 21 ) to statf wlu'tliiT the party assoHscd was !i liousclioldor, t'l'ct'lioMcr or truant, l»y aflixiiij^' tlm Ictttt K.. fl. or 'I'. ; and (s, 2(1) wlicn the land was assessed ayuinst hotli the owiH'r and occnpant, oi' owner and tenant, tlif ussc'ssor was to place iiotli names within Itiackets on tlw roll, and wi'ite opposite tlie name of the owner the letter v.. and opposite the name of the oecnpant or tenant tin- letter U. or T. 'i'he Leuislatui'e thns delines (twiiei' jin meaniiii;' freeholder; and occnpant and househoMei' urr made ('onv(!rtil»le terms; and the distinction hetweeii n tenant and an o('CUj)ant, whatever that distinction iiia\ he, is pi'eservef and, in fact, entered the voters name as of \. , la : lint tliat In- did not read to the voti-r the hitter |i;\rt of tlie oath, as to his lieini,' a snhject, and the parts tnllowiny' that. The lleyistrar tooi< the view of the facts prtscnted l»y the voter's e\i«h'nce. (Mi this (|nestion of fact. I do not st^e sntheient i;i()nnds for distni Kinj;- that • licision, aithon^h on nieivly readinif the e\ iih/nce, vvith- niit seeinu the witnesses, it uiav not he that whicli wonM ,it lirst snjj,';;-est itself. I iiave lieen referred to a decision of Wilson, .)., ii> the .\'r///A I'ntnrfi' fn.si (II Call. L. .!., Mi'2), in which he e.\- lucssed an ojiinion tliat some voters, whose names had iiffi' omitted from the voters' list, Itnt wh(» wei-e (hdy ,i,s' I und'eiititleij to vote, and who had |tre.se.ited them- sc! e view of VV^Lson. .I.,as to conntin!;; votes, met with an])rova PP It would .seem diHicuIt to reconcile tliat oi)inion witli the principle of votini,' hy hallot ; hut til act upon it in the present case, in which the intention tn vote foi' the petitioner was not declared at the time, wo uld he to e.Kti^nd it .so fai' as to h^ave the piinciple out "f sight. 1 have already had occasion, durincr thi.s .scru- tiny, to refer to the rule stated by Lord C'oloridjre, in Mathir \. /Imini (1 ('. P. D., '^9C)), and which con-^^x-nds itself to r)i.s l'Ki)V[NClAI, EI-Et;riONS. [a. I). my ju(i vote has been det(!rmined ; hut I do not find that open voting is in any (tase eontemplat(Ml, to say nothiii;r ,,!' receiving,' a vote when to tlu^ absence of secn-cy is jiddid the al)sence of some of the incidentals intended to secuiv lionesty in voting' at the poll. The question of the powci of an unsciu])ul(ms Returning' Officer to dishonestly afti-cr the result of the poll, is (me to be dealt with by |)arli;i- merUary I'ather than judicial higislation. 1 lia\f uoilouht, howeVM. that 1 oUL;ht not to add the \'ote. (1*2 .liiiinutl Lrii'is. J.^■,sv,/^. ISTJ). p. I'di).) il^\^^ nH m rf ^ V a tr l.s7!>.] n\ ssKi.i. (2). / 7.7 y / /NCI A L EL E( ' TIOXS, 1 s 7't. :• I !♦ IlKKoliK ( "HIKF .ll STICl-: MoSS AND Mh. N'KK-I H A N( Kl.l.i )K Blake. Otiawa, .'ffh /Mrnihir, /,s';.''. \|)AM .1. HakEK, Pditionir. \. Ira AIorOAN, Hispimdnif. /,'. .V "., '. /", V. Id.'i, fiuh-xir. ..' ; .^.•' 17c., c. .^, .v. /.s'. — /rri i/iiltif inurkiiiii 'if /l(illit/.< hi) /)/ /iiitf/ /I'l/nni'mn Ojfin ft Hirainil lii/ Coiid/i/ -hi 'i/t — 'Iiic petitiDiiei' liiid recoivedii majority of tlu' ballots cast at the election ; lii't (HI a recount before the County .linlj^e. certain hallot.s, with other marks on tiie back than the initials of tiie Deputy Returning (Hficer.s, wci-e lejccted !)y the. County ■ludge, thereby giving a majority to tht^ ifsiioiuleiit. Ksi(l(!rice was given on the hearing of tiie petition that the Deputy Returning Otticer.s had, from a mistaken idea of their duty, placed the numbers of the voters, as marked in tlie voters" list, on the li.icks of the ballots. //'/(/. I. That under 4i2 Vic. c. 4, s. bS, the marks ,-,0 made did not avoid the ballots, and that such ballots .should now be counted. - That as the petition had becui renilered necessary by the mistakes >>\ the Dc])uty Returning Odicers, for which neither the petitio'ier in»i- irs|)iindent was responsiijle, each party should bear his own costs. Sriiil,!r. that tile County .ludgc, acting niinisterially on tlie re.'ouiit o lialiots. cfnild not have investigated by wlioiii or for wiiat iiioti.e sucli iiiarics liad l)eeii made on tlie ballots. Tilt' jictitiou .set t'orti) that tlic ix'titiotR'f liud iTccivcil a iiijijoiity i)t' :?s of till" ballots ca.st at the ch-ctioii lieM on \\\'- -ii'Mi May and otli .lunc, l: Imt that, on ii icroniit lit' the- hiillot.s lict'oi'c the Junior .ludof of thr county of ' 'aricton.ccitain hallot.s. with other niaik.s than the initials iif the l)e])Uty Jletuininu' Officers, had heen i"ejecteNS. [A.i, i 'i !) '! b/Ai l.l^ h 't ^Vf. :^ TIk' cvidtMioo of tlu^ Deputy llt'tuniin^- Otficcrs of the pollini;- suit-divisions No. (i (lloucester and Nos. 2 and :] (-'uinlKM'huid, was to the ott'oct tliattliev had ])ut mnuhcrs on till' harks of the hallot [)apers eorrespoiidini;' with tin- uiunheis on the votei's" list, hclievini;- it was tlwii- (hit\- so to lUjndHM- tilt! hallots. The aruuiiit-nts of couiisi'i are reft'i'rt'il to in the iiid... Hunt of the ( \)urt. which was delivei'fd l»y Moss, (". . I. <). -My learned hrothfi- and myself Uiink it quite uiniccA'.ssarv to troul)le Mr. ( ) ( Jara with answciiiiM the ohjeetions to the /irimr. f'fcir case advanced liy rln' petitioner. The n'encral ohjrction is t-ouched in the foiiii that thr l»all<;ts ha\'r hciMi so marked as to (constitute a violatimi of the pi'iuciple of the Hallot Act(R. S. ()., e. 10), which, it has been eorriictly said, is the seeurin_o' of .seeieey and thr non-idenlitieation of the xotci' : but, in woi'kin^' out this princi[)l(', wc art; obliged to look at the precise machim ly which the Act luis dc'vi.setl and employed. We can oidy fratlKM'the natui'e of that machineiv from the wcjrds whicli the lje<4islature has eho.sen to use. 'j'urning, then, to rlii' •SOth .section, on which relianei' is [)laeed on behalf of tln' petitioner, we find it contended that there has been a viola- tion of the principle of secrecy, which that section was clesigned to .serve. That section, in (diect, ie(|uires the Deputy ReturninoOliicer to ])reti.\ to the names on tlic vot(;rs' list nundters. Those nundiers, it appears in the juv- sentcase. 1 think in the three polling- sub-divisions now in • (uestion. were consecuti\'e. I see nothing" in the section Ik actually prohibit such a moile of nund)erinv the Deputy Ilt^turnint^r Ortieer, but it nu;4"ht not be out of place here to rtiuiai'k that it is highly iner.pedient forsucli a course to be adojtted. vVlthough the lawhas not ])i'oliibited it, and althouoh tlu; law does not intend that the election should be avoided simply becau.se the J)eputy ReturniiiL; Offic(;r has chosen to nuirk the names upon tlu- voters' lists with consecutive nund>ers, it is (piite obvious th;>t the trieit ' / '. A. I). l«7!».l HIISSKLI. (2). .V2T Linl '-^ libers h til*' limy jinlu- ihink \Vfi'h\'i UV the ((Ijjei't nt' secuiiuf^' iioM-ideiititicatiun will Im' promoted liy the adoption of arhitrai-y nuinbei-s. 'J'he section itself says thill "The Deputy RettiDiin^' Otficei- shall, upon receivini;' the eopy of the voters' list from the polling' snlt-division f(ir which lie is to act, prefix a innuhei- to every name in such copy, and such numheis so protixt-d need not he con- secutive inind)ers, hut iiiay he chosen arhitrarily l)y the Deputy Returning' Oflicer.' 1 take it it retpiires no coni- nient to establish that the sole object of that clatisi' is to |»r()iin)t the Deputy lleturnin;^' OHicer to use other than consecutive ntunbei's. It is further ur of th(^ ilOth section. That is the section which pre.scribcs the mode of conduct which should 1k' adopteil by the l)e[)uty Returning Officer upon u vote lieing tendered. After haviii!'' asciM'tained that the name of the voter is upon the list, and aft(!r ha\'ing heard and dispo.sed of any nhu'etioii which may hi- made, in the uuinner provided liy the Act. the 7th sul)-section prescribfs the method of pro- ceeding to actually give tlu' vote by itallot. The l)e[)uty heturning Officer is to "sign his name or initials upon the hack of the ballot paper and upon the cotnitei'foil attached thei'eto," to detach the ballot paper aiiil delivei- it to the voter, and to " write, or otherwise mark, ui)on i.iich counter- foil, the number prefixed to the nanu- of sitch person upon .'.2-2 I'HOVINCI.VI. KI.KcrioNS. [ \.l>. tlu' voters' list :" ;ui(l tlii' only mark li«- is to niakr oppo- site the imine of the voter ut the \ ote is entitled to he cni lllled I' lion th le e\ ideiice lieic it is lievond contl'OVe)'s\- Ui iii\ iudniiient that the Deputy lleturnin;;- OfHcei's honestly, althou^ii mistakenly, placiMl the numbi'rs upon the hallot j.apers. 'I'hey had no intention of violatin^i^' the law, I am (piite svu'e. Their mistake was one which aro.se from mi--intei])retation of the Act, and was |)reeisely that kind of luai'k ii])(Mi tlie hallot paj)ei' which the Ley^islatnre did not inten.l IM'SSKI,!, (2). i-irj •j;ain fin mit'air advuntanr. That ditticultv is o\w we an; t)l>IiL,'(Mj to cncountrr in i^acli jtarticular cast; as lusst tlu' ( (lurt can. The ctti'Ct, if that were cstahlishcd in a par- lirular case, iiiiuht he to show that the mark had ?u)t hoen iiiiidc mistakenly, hut it would he liard to show that it liad not heen made corruptly. But the lanction 107 shows that >ui-h an ohjection as this sliould he fatal to the vote. The aiLi'iniient is that tliei'e has lieen a disi'ei;ai;islature which j^ovei'ii the election n. lentil that ameiidinu Act. which I have had 'iccasion already to refer to, was passed. tluM'ffect of what has heen shown to-day would not have heen to entitle .Ml. liakei' to the .seat. It is only hy virtue of the savinfj : but no [)rovisio)i has Ix.-en maile for the leai'Ued Judue entering into an investigation of tlu' motives which led to the Deputy Ketui-ning OtHcer making any mark upon the ballot l)eyond tho.se sti'ictly authoriziil by law. If we tuiii for a moment to the W'ording of .sec. 18 of the Act of 1S79, I see the words are simply: " \V^)r(ls or marks corru])tly oi- intenticmally, or by mistake, written or made, t)r omitted to be written oi made, by the Deputy lleturning Officer «m a ballot paper, shall not avoitl'-»4' 1S7!>.1 KrssKi.i. (2). What is tlic triltuiuil which is invested witli the juiis- ihction to fU'tt^nriiiic whiitlicr " \voi'«ls oi- iiiaiks" which, in |i()int of fact, arc not authori/,cueli evidence upon an ai)plication which pointed nunly to a recount, and while di.schai'niny; the duties of a minis- terial oHicer, acting' under the clau.ses relating- to le- countini^-. At any rate, th<' learntMl .ludi^e was not aski-d til enter ujton any suc^li investigation. .Some (juestion is made as to the suMiciency of the notiie srived upon Mr. Jiaker. The notice was (piite suflicieni. at any rate, to (nable him to ajjpear with his counsel and ohject to its in.sufficiency. It would have been the easiest tliini,^ in the world to a,sk the learned Judi^e to a not taken. Mr. Baker cho.se to rely upon liis ohjt'ction to the notic(\ The law has uot])rovided loi- the form of the notice in such a uiatt(>r, that 1 am awai'e of. .Mr. Baker, at any rate, knew this investigation was i^oiuiL;' on, I havf no doultt. 'I'hen, if it was desirable to adduce evidence liefon; the learned .lud<;e, whatcour.si' was open ' I ap{)re- hend it to he (piite clear, and imleed Mr. ()'(Jara concedey the majority of tlu! duly (pialilied electors in this constitu-'ucy who had voted, to re])resent them in the Lejjfislative Assembly. How was this to be yot riil of, unless by taking pio- ceedinj^s under a petition '. No answer to that can be ^uiiji'ested. Then what should the respondent have do!,e upon tlie ])etition being tiled ' \h\ was charj.fed with per sonal corruption, and therefore not in a ))osition to liave re.sijirned : but supposing; him to have been in a po«iitiini m| ll'v. .•.2«i I'KOVISCIAI, i;i-K(T|()NS. A.l). iirf: m m t to liavc le.siffimil citluT Ixifort- tlif petition whs Hlt-d or after, what would l\avc hceii the result, suppose he hail fesifrned het'ore the jietition was Hied and the petitioner had not ehosen to prosecute any ])(;tition. I asked the learned eounsel to define the exaet attitude winch his elient wduhl have ()ecui)ie' a dutvto the public — in eontestinti the return. If he had done so and failed, he W(juld have had to pny the: costs ; but if a petition was necessary, and he simply stood on the defensive, and said : You, the peti- tioner, have not been declared to be duly returned ; you can only .show that you were entitled to the .seat by .show- \H7iK] inTssi:i.i, rrlT in;,' tliat tliosc tiiarks wen- puf (•oiriiptly or intrritinu- iilly, or l»y rrjistakc," hy tlic l)('|)iity RetuiTiino ()tfictM>: it is in tltc interest of tlu' piiltjic rliiit, luit'oic yon aiv ciititlt'd to •'iijoy t.lif siijit, sut'li jn'oof should tic i^ivcn that (Iocs not strike one as an unrcasoiialth' course t<' take. I do not indeed see what othei- course was o])cn. It is ch'ar tluit if the .hniior .ludu'c was not in a position to |-ccei\e evidence upon I lie c,on(hiet of the |)e|)Uty Ive- tiiiniiin ( )tHeeis, upon I he motives that U'<1 them to phn-i' tliesi' erroneous marks upon the !ialh»ts, it was alisolutcly essential for the ptititioner In come ln-fdn- an Klcetion (Vtui't and c.stalilish his ri^ht. In my opinion, the result, of these eonsidei'ations, tt» wliich I have no douht others uiiL^ht I'cadily lie addcui, is that each of tlie parties should hear his own share of the costs. iiiijft I'" i 1)1. .\KK. \'.-( '. -I ai;ree ill the conclusion that is ai'riveil at. I think one must ht^-ii' in mind that in this case no fraud or impi'opriety has he(>n lirouyht home to the |)eti- tioiier or the respoiukMit ; that the result which is iKiin;^- impeached hy the petitioner in this case is one ilowini; fiom the act of the otHcers that have heen a])pointed uikIcj' the statutes. The Deputy Returning- ()t}ic(;r.s are inde- pendent officers, .selected under the statute for tlie purpose rv <'vi»lence ; he could not si't the matter rii,dit, Up, thi iv Tore, to the period of the pi-esentiny- of the petition, all has Ixsen a matter which caiuiot he tiaced to tlie respond- I'lit or the petitioner. It has lie'en a miscarriage, owiiin til the conduct, honestly thouj^h i;j;norantly, ol" the officers appointefl under the statute. I do not thijd< there has hern any ease where, iiiidii y preliini«ai">' iibjection. A petitioner in an (flection petition who has been yuilty of (.orrupt prac- tices at tlie eleotion complained of, does not thereby lose liiw nfn/u.'< as a petitioner. ilxcept where tlieie are recriininatory ciiarj,'es aj^ainst the unsuccessful <;aiulidate, or for the ])urpoac of declaring the jictitioner's vote void on a scrutiny, tiie c(iiiduct of a iietitioner at an election cannot be in i[uired into. And in tiiis case there is no distinction between a can- liidate-pctitioiier and a voter-petitioner. .s> iiM< , Tiiat if tile petitioner in this case was proved at the trial of tiie ilection petition to have been guilty of corrupt practices at the election romplained of, the petition could not be dismissed. The iK'tition contaiiUMl the u.suiil fliaro('s ot" conupt ]iia(',tic'o.s. .Vt'tt'i' the [)i!tition was at issue, liut hct'orc the day t'oi' till' tiial was appointed, the ivsjiondent liceaiiu' aware of ii chai'Lii' of corrupt practices aj^^ainst tlie petitioner, who claimed to lie a votoi' at tlie election in (|Ueslion. TluM'e- iipon he obtained a sunuuons callino' upon tlie petitioner to .show cause why the [letition should not he taken ot!' the tiles, on the t^round that the p(!titioner had l»eent /ji'dcliriH nml ni/nr illiijul ih'Im, II. .V. i). liK ■■<. /•'.''. Thf ittHpoiiilfiit wjisi'l<;i'l('y a mujinity ot '.'(>', ,tiicl al tin' trial ioiiii>. I for tln! rcHpoiiilciit iiiliiiittcd Lliiit tlicrc Wiu cviiN'iuM? ciipalild ol lioin^ producod whiclt would luivo tlui ed'cct of avoidiia; tiic Dlcctioii umli i H. S. ()., c. 10, s. I ■'!> : aii. L. Sroll. for respondent. After the rtifulino- of the petition, counsel for the peti- tionei' stiiternctic't'.s at the flection, sucli coniii)!. act or nets shall not avoid the t'lcetioii." AIOSS, ('. .1. (), - W'c ilcclarr the election Void. We will ir|Mirt to the S|)t'al<(;l' tliat the elei-tion oIlLdit to lie set. aside, hut that cori'njjt practiei's ha\e not Ik'cii proved to have lieen foniinittecl hy thi' res|)ondelit. The |ietil ioner is entilied to the L;i'neral costs of the cause. ( I :{ ./nil mo/ Acy/v. yl>w'///., ISSO, p. 7.) II I'' ! SOUTH WKNTWOllTH. I'.KifiiiK ('iiii:i' .irsTK'H Moss AM) Mi«. .h'sTK'i-: (i.vi.r. ll.V MIl.Tn.V, ',lh III llllh .\(in iiiIk )\ /,S'/\''. Tiiiiip.sro, ..'.'//'// Dii, inlnr, IS7'J. Sami'IK. N.vsii Olmstlai) iI III., Pdiiioncrs, v. Tuankliv iM 1:T{ A l,K ( JAUl'ENTEIt, lifsjimii/i ,i/. T'/'mv:' /.intH Fiiiiilih/ All — /'(niii'idnr-i — Ji'/hl lo ruir — '/'urn hiillul — .Miukhiir 'Vols. larticulius for a scrutiny of voton whtu doliverod l)y tlu^ rcspoiuliiit ulijcctiiij.'; to ucrtiiiii voters, as (1) iilii'iis ; (2) minors ; (;{) not nwnors, tftiants or occujiiints of tlii' propiity iisscssi^d to tluin ; ami (4) farmers' sons not residinu w itli tlicir fatlirrs n]ion tlu; farm, as rt;(|uir(;etween the English and Ontario statutes in this respect. 35 i; i %' 5:V2 PROVINCIAL ELECTIONS. [v.n, The ])otitioii contain(.'. tenants or occupants in the land assessed to them ; ai)i| (4) farmers' sons not residing,' u})on tlie farm, as rcfjuired l)y law. The CornT lield, that hy the Voteis' List Finality Act of 1S7S (41 Vic, c. 21 ), they were precluded from in(|niriii^ into the legality of the votes included in those lists : aiiil that the only votes that could be impii red into were thosu sj)ecially excepted by .section .S of tlie Finality Act. The ])ai'ticulars moved against were then struck out. A scrutiny of votes took ])Iacel)efore the leaincd .h^lye.s. the i-esult of which is set out in the judgment, which wa-. delivered by ^loss, C J. ( ). — ( )f most of the very inimerous questions raised upon the petition we disposed during tlie jirogres^ of the trial, and to them it will be unnecessary now tu refer. \\'(' i('si'r\ril for con-idciiition the case of Philiji ( la^i', whose vote \\a> i('ic(icii upon tlu' counting of the ballot^. This \t)tiM-, who was a man of intelligence, accustomnl tu exei'cise his franchise, and familiar with the mode of usiiiu the ballot, through some curi )Us mistake (»r inadvertence toi'e tlie pa[iei' in two after putting a cross opposite tlic name of .Mi; Carjieiiter, and handed the mai'ked half l" the Deputy Ivet'nuing ( »liicei'. by whom n was dejiositi'ii m ] 31 1 ,2:n . I 'IS. Vor !■(.■- (• pai'ti- ■a t.. iv> owncis. nu ; iiiul ality Act int[uiviu- ists -. ami eve tl\ose (1 ,yuiip.'>. isyo.] SMITH WKNTWOirril. :).•}:} V nnW tn lllll' ( 'iaLi;f. iallnts IstttUH'il t" V(lvri'l''iii''' ,j)usite tin- rd lialf to ill till' lialint lir.N. It iiiiiiUMliatrly urciii'i'iMl to Mi'. (Ijioi- tliat 111' liail iiiailc a mistakf, and lu' so .stated to the otHcer, at till' saiiii' tiiiir <.;iviiiL;- liiiii tlir otlirr lialf, and di'iiiatidcil ;t l>allot ])api'i' i>!i rill' h'I'oiuk'. that In- had iiiad\erteiitiy >]) lili'd that \\iiich hr had I'eei'iveil. 'To this re(|U('st — eoi'- rretly, wi' think — the Deputy Retuniinu; ( )tlieer rcfuscil tn ac'cdr. fill' the voter had disahh'd hiiiisclf from eonijilyinu; with till' conditions id-cscrilii'd hy the statute of n'turnini; till' oriuiii.'d ]ia]H'i'. Dut witlumt layiiit;' down any lule nt' '^iiH'ial ap)>lieatio!K \vi' arc oi' opinion that undrr tie' spii'ial (•lrcuiii>tanrrs provrd the Votr should lir allowi'd. 'Iliis was till' only torn hallot [)a])('r di'jiositrd, so that it.-> idi'iitity admits of iio doulit. 'i'lu'rc is no ipiestion as tn till' '^ood faith of till' Notcr. His jiolitieal synipathirs wi'i'i' niit douhtful : and it would hr simply ahsui'd to --usjii'ct liim of haviiiLi' rrsorti'd to a trick for tlie ])urpf),se' nf showini;' for which I'andidatc he had cn-t liis vote W'c tliiiik. thcicfiiic. without \iolatinu; any sound ])rinciple, "1- without o])ciiiiii;' the door to any danu'ei'ous evasion of t!ic ])rinciple of seeurine- secrecy, tiiat we can allow this vote. The iH'.xt oliji'ctioii made ii\' the petitioner is to tlic \ of Al\a (1. Jones and ( ieo .V. 1 )a\is. mi th ■ ^luund ef theii' liavinn' treatcil William .loyce. We decline tu 'li--turh tll''ir \oteS, hecaUsc it has llnt hecn p!'n\(Ml tn oiir -arisfaetioii that the ■spirituous liipior was ^'i\en duriuL;' pulling- hours, The other ijUi'stioiis are di\isihle into three elapses: The tirst and most important depends ujion the con- -tnictioii of the :>iid <;ili-section of the ."'.I'd srctiuu of tin- \'oters' Lists i'"inalily Act. hy which it is declared thai fill' ci'i'tiHeiJ list shall, ui'iui any -crutiny, he linal and 1 'ill('lu-i\c e\-idi'iicc ol' the ri'_;hr to \n[i\ e\cc]>t as tn persons who at any time suhseinieiit l\' r^ the list lieini;' I'l'itilii'd are, or lia\i' heeii, non-resident, cither within the iiiimici))ality to which the said list relates, or wilhin the I'li'i'toral district for "Aliich the election is heinu' licM, and who !i\- |e;|s(in thefcji' ;iv.'. Ulldel' the 1 Hi iN' isiu| l> of ' The i : r:,.ii| f I i I. ^ t < f hfji 1 1 HI I' • o84 puovixnrAi. elkctions. [A.D. Election Act of Otitai'io,' incompetent ;ins to be possible to a])p]y to it any rule of minute verlial criticism ; such a test it obviously will not stand; but keeping in view the dis- cernible object of the Legislature, we think its ettljcL is to I'ender the Votm's' List final, except where there ha-- bjeii a subse(|Uent change of position, by the \'oter having ])arted witli the interest which he luul — or by the Assess- ment Roll appeared to have;— in the property, and he- CDUiing also a non-i'esident of the electoral di\isi(»n. Where there has been no change of his status there is n. room foi' oj)ening an inijuii-y. The result of this decision i.s to leave the position of the contestants iV)r the seal unatfecteil. The second class of cases reserved is that of voteis wiio chose to mark theii- ballot papers with a straight line instead of anything approaching to the form of a cross, opposite the name of a candidate. iii'Ofly it has test it le «li-- rtrct i> "iv ha- haviuLi Vssoss- ivisidii. x« is lb' Iccisitiii the seal (jht IJHf a ci'0.->s, ;>i7!).] soirii wEN'Twoirru. :i- The decisions in our Courts upon the provisions of tlie Dominion Act, wliicli do not appear to he distin^uisliahh', are a^'ainst tlie valiility of such votes. But it is uracil that these decisions are ii-i-econcihal>le with and sliould he treated as overi'uhMl hy tin: iud';nient of tlie Court of Ci>nuiu)n Pleas in England, in Woodino'd v. Sfirs'i/is (L R., iO C. P. 74()). W'eai'e iiiuch impressed \vitli tlie force of Mr. McCarthy's arti'iniient u])on this point ; hut, u]:ion consideration, we (1;» not tliiidc it can I)e .sustained. 'I'he Jud^'nient of the English Court proceeded upon tliej^'round that the making of a cross was merelv dii'ectorv and not mandatoi'V. There is no reference to a cross in tlio enacting part of the Im- perial Statute, hut it makes its appearance, for the lirst time, in the; instructions foi' the guidance of voter.s. It is 'u fact simply given as the' appropriate mode foi- till' \()tei' indicating liis clioice. In our statute it is very ilitl'erent. It is ex|)r(!ssly enacted tliat the \-oter shall mark his hallot in the maimer mentioned in the; directif)n ty [)lacing a cross on tlu' riglit hand side, oj-jposite the name of the candidate for whom he desires to vote. The natural and ohvious meaning of this language is, that he must make a ci'oss to signify his choice. The wh.ole ])olicy >if securing secrecy precludes the suggestion that tlie voter is at liherty to make any mai'k he jileases ; and the Lopslature has Iherefoi'e ])rescrihed a kind of mai'k whieli is thi' easiest and most f.imiliar — that inileed whieii is used liy the illiterjite. In \ie\v of the diii'erence Itetweeii the JMiglisli statute and oui's, we (h) not feel at lih(;rtv to refuse to follow tlie 'lecisions of our own Courts. \\ e may ohserve that this conclusion seeiiis to he jiis- titied hy the amending Act of hs?!*, whii h enacts that a vi)te>' may mark his liallol paper with a cross, either (as heretofori') on the right hand side op[)osite the name of the candidate for whom he desires to voti', or any othei' place within the division which contai)is the name of the candidate. ; 1 . i 1 I -I :!6 PRO y 1 NC 1 A L E l.ECr I ( JXS. I A.I). Ill W fi- i I' m While removinu- the objection as to the precise |»ositioii of thi^ Tiuirk in tlie compartment, thi.s seem.s to in.si.st upon its form heinv tlie hjarned Judge of the County Court, our decision upmi this point does not affect tlie result of the scrutiny. The third class is that of \oters who have from somr strange ijerviM-sity put a cross u])on the hack of tlie liallot paper only. We are of opinion that this mode of marking is umi sanctioned by the statute, and we disallcw these votc'^. the elfi'ct of which is to strike off one vote from Mr Carpenter and two fiom Mr. Awi-ey. The residt of oiu' Judgment is as follows: Tlic rrspond- ent had upon the ivcount a majority of one; to this we ha\(' !)dded the vote of Philip Gage, and from it liavi' struck off one vott', on the gi'ountl that the mark wu- endorsed on the ballot instead f)f lieini; maile on its face: and we disallowed on various grounds, duj'ing tlu' progros of the ti'ial, twelve votes. This woidd have placed respondent in a minority of eleven. But we sti-uck off fr(Mn Mr. Awrey's total thrci' votes dui'ing the trial, and two ai'e now disallowed by reason of the marks being endorsed. During the trial, howevei', we added three votes to ]ii< number. On the whole, therefore, we give liim U})ou tlic scrutiny a majority of nine. We tinil that Nicholas Awrey was duly electeil; and that no corru])t ])i-actice was proved to have been com- mitted by or with the knowledge and consent of eithei- of the candidates, and there is no reason to believe tliat corrupt practices ('xtensi\ely ]>i'evailed at the election. While unseating Mr. Carpenter, we are sati.'-fied tlmr he conducted the contest with the utmost ])ropriety anl fairness, and that there is no pretext with chai'ging liiii! with the slightest violation of the law. (l.S JnurHnI Lr;/is. As.'^nn., 1 S80, p. f».. IS7! to hi- )U thr : ainl CDlll- cithcr •(• that i.iu. ,i that tv aibl lU' hill! ). St., STdUMdNT -1, STOIIMONT (2). IJki'ouk C'liii:!' .IrsTicK Moss, am> Mr. Vk k- I'hancki, 1.1)1! Iji.aki:. CnliNWAI.I., ;iiil l>ii,)uhii\ ,'S",',''. I-IHWAHI) I^MI'KV >■! ill., P< li/in,,rrs, \. .IdSKIMI KkI!!!. nrsjiiim II' II f. ltisijilillilic(t/iOll Uj' (til ii'j, nl far romijil /ililr/iris, Ji'.S.H.. r, /(/, .. .■. //; ^, ii/,, /;.:. The oluction liaviiiy liecu declared void on account of tlie coirupt pric- tices of ail aaeiit of the respoiiduiit, tlic .Judf^es actiiifj; as a Court for tlie trial of illegal acts comnutted at tiio electinii, after iKitice to such agent, u'rantcd an order for tlie punisliinent uf .such agent Ijy tine and disiiualification. 'y\\v petifi(ju ill this case contaiut'd tliu usual eliarox..>, of cnii-upt practices. The majority for tlu- rt'spondcnt at the clt^ctioii was I I. It ap])careil from tho evidence of one Jolm M. Caiiiphrl! aii'l others, tliat a nuniKer of xofcrs had heeu lu'ilu'd to \i»tt' for tlie respondent. At the close of tile cvldenee, and after the arnuiiient of Mr. mil II III-, <().C. ii ml Mr. A . I'. M(fiif;/rr. for pctitionr-r, 1//'. Hi ftiir Cii iiii'i'iiii, r respondent, The Conrr lield that corrupt practices had not heeii t'stal)li.shed a^'ainst the ivspondeiit personally ; that the H'^ency of Canijiliell had Ikmmi estahlished ; that lie (Caiuji- lioll) liad Itoen ,L;'tiilty of coi'ru])t ])raetices, ami that the ic^^ult of the election had hcen att'eeteil therehy. Thi- election was thereupon declared void. .1//'. Jliikidic tlien moved for a summons, under li.S,( ).. c. 10, ss. 174, 17'), calline-upon .lohn M.Campliell to slmw cause why he should not he punished pursuant to s. HiK hy tine and disqualification. *! : ; -■>■ ;. ,i r)3.s I'uoviNciAi. i;li:gti<)Ns. [A.D. .Ifr. Cameron thereupon ai)poare(l t'oi' Ciim|)1)ell, aivl admitted that lie couhl not deny tliat Im haf the statutes in sucli case made and provid(;il, oy giving or agreeue,' to give, and ollering or promising, a .-urn or. sums of money or other valuable con- sideration, and jn'oniising or eiidi avoring to ))rocure money or otiii'r vahi able consi?'u\ Arthui Belcher at the said ciection, or to ))rocnre or induce the said Arthur Belcher to vote for 'he said respondent at the said election, or to refrain from voting. And the s.dd .lohn .lunkin was charged with the said corrnj)t practice upon the s.iid evidence l)et(n'(i us tlie said .luilges, whereupon we urdorod the said .John Juidvm to be sunnnoned to appear at Osgooile Hall in the city of Toronto, on Tliur.-iday tlio fourteenth day of Decemlier in the said year one thousand eight hunilre ill WEST HASTINGS (2). Hi;iX)RK Chief .Ics'iick Moss and Mh. .Ii'stk r. (Iai.t P.Ki.i KVU.LK, 4//1 anil fith Xoriiiilii r ; JO/li (tinl ISth /)' rrinh, r, IS^H. TiDiONio, ^'///z Dinmhor, JS7H. TiiiiMAs Hoi.DEN, r-iitl(>i)('i\ V. Alexander Roijertsox, Respori'li'i)!. ('(irniji/ r/i7>- ajI'ictiiKj tin rii^iilf i>t' tin- ihctiim — /.'. .S'. ()., r. 10, . I'/i— Onus (if iirroxiniity to the polls spirituous litinor was sold andf.'ivon at two taverns diirinu' p'lllinj^' hours, ami that one of such agents tooi< part in furnisliini.'suih lii|n<)i-. and that such agsnt had previous to th'' election furnished drink or otluM- eniertidnnient to a uieetinL,' of eh-oto.-s licld for the purpose of proniotiie.' the eioctioii. 'Iil'l, that the result of the election had !>• in afi'ected thoreliy, and that the election was void. I'l r Jfo.^s, V. ■L--P)'inin ffirli eipiriipt praotitH:s avoid an election: and the onus of proof that tliey ai-e not sultii.'iciit to all'ect the majority of votes '•csts upon the respondent. i> the said Arthur ]?olelier at the said Anne I'elchcr to inoiure the \otc election. Therefore, it is adjudtied hy us that the said Joiin .luniiinlio convicted, and lie is hereljy accordingly convicted l>y us of the said last mentioned mrrupt practice And we do further adjudge that. ui:dei' ami i.'V virtue of the statutes in that case made and provided, the said Johr. .lunkiu ha*-!! for his said olieuce incurred the penalty of t%v o hundred dollars, and that diirin_; the eight years next after the date hei'eof he shall he incapaMe of heiug elected to and of sittiiiu' in the fjCgislative AsseinMy of the i'rovince of Ontario, and of heing registered as a voter and of voting at any election, and of holding any otlice at the iHunination of the Crown or of the l.ier,tenaiit-(;overii(.r in Ontario, or any nninicipai ollicc. .\nd we do further adjudge that the said .lf)l!n Junkiii do pav the said penalty of t\\o hundred dollars to the Slierilt' of the county of Lincoln, on or before the lifteenth day of .ranuary ne\'t, to he hv tiie said Sherifi naid and applied according to law. And if the said sum he not paid to the said Sheiili' on or before the said lifteenth day of January ne.xt, we adjudu'e the said Jolin •lunkin to he imprisoned in the common gaol of the county of Lincoln until he shall have paid the same. Dated at Toronto, this fourteenth day of Decemher, in the year of our Lord one tliou-isand eiylit hundred ,ind seventv-si.x. i' (Signed), C. S. PATTP^RSON, ./. A. S. H. BL \KE, r. C. ii 'il I u 540 PHOVINCIAL ELECTIONS. [A.l, The petition contained the usual chai-fjes of conn | it practices, and claimed that the election was void on Hie jifround that the corrupt acts and othei* illegal ]»iacti(;i> had affected the result of the election. The candidates at tlie election were tlie petitioner and ies[)ondent ; and the niaj )rity for the respondent was '.V-]7. Mr. J. K. Kerr, Q.(.'., (vul I lie PriUioiicr In /xisoii, ['ov petitioner. }fr. Hector Cantcrnii. QAv for respondent. During the argument, The CniEi" JusxrcE remarked, that his reading of tin- statute was that, prinw fane, corrupt practices avoided tin' election ; and the onus of proof that they were not sutii- cient to affect the majoi-ity I'ested upon the I'espondent. Tlu^ Judges notes of the evidence of the princi[)al agents o^' the respondent, whose acts were held to affect the result of the election, are as follows ; Willidvi Scirsficld : I worked for Robertson on the day of the election. Was outside man at the Coleman waiil poll. 1 told Robertson that J must get so and so, and I suppose he understood I was working for him. I was at tlie poll until the close. 1 went and got voters, and also took them as they came. I used all my influence fi)i- Robt'rtson. T trieil to get a man named Maloney to votf. I used every inducement to get him to vote. 1 gave him SI and got it back. I sup])ose it M'as not enough money for his vote ; lie said nothing about a S4 or $5 bill. I toM him it was a ^i^') bill : 1 showed him a 85, and I then put a SI into his ]v xdcet ; he went as far as the door, and having examined th ■ bill, haudt'd it back. I was tliree or four times in Walsh's and McNulty's; people were in with me each time. We went in to get something to drink. There was drinking there all day liack and forwards. 1 under- stood it was Mr. Holden's whiskey at Walsh's. Menzies was a supporter of Robertson. 1 don't know that I saw ^pp Ih7!>.' WKST llASTINCS (2). o-U !Uiy whiskey fit McNulty's except Mulheni's flask. J t,'ave T. Hanis '.A)c. to try to ^et him to vote t'oi- Rohertsoii ; I |ii(iiiiise(l hiiii !^2 inoic. He i;()t81.N') and three diiiiks. 1 hail S40 le money to H'o a;iil vote t'oi' ilohertson. I may have houn'ht live votes iiiOi'e ; I will sweai' 1 did not liuy ten more. 1 caJi't say how many J paitl after the election ; 1 paid Michael C'ahill S2 : 1 dont remendier the name of any other ]n'rson ! )iaid that day. Burke han i^8 on election day; he 'lidii t say what foi' ; i had a small har accoimt ajj;ainst liiiii. He said nothin;;- as to how the money was to he ;il)[)lied. 1 drove Uoburtson's conveyance that afternoon. Owinif to tlie non-attendance of one of tlie ai^'ents of the respondent when called on his std>]) 8"), 84, i^ii, .82, 81. ')0. I think tlu-y would average aliout 82. .")(). I kept no track. F can't say to how many they wto'c to give 81. it was my own money. [ liad received money from Mr. Ashley and Mr. Robertson. I got 8'>0 ^'rom Rohertson on the morning of the election ; 1 sent my lirotlier for it to Robertson. I got a cheque the Saturday ^\i IS li'i li ml J'i_J I ' 542 I'KoViN' lAI. KI,K(TI<»NS [A.I.. ^-- bot'oro for S3.')0. The t'lc-etloji wns on Tliursdny. 1 a ItniMin^j; for Mr. Asliloy. Tin ic was only one of my woi'knicn named McHnLjli who ua- paid for his day. lie said lie wonld othei'wisi' liave L;i)iif oH' to anothiM- ioh. The nijj'ht hefore the eloction 1 'fjive some money to electors — two or thico; I can't say how many. 'I'hey i^ave me to inidei'staiul that thoy wantcl to spend some money the ne\t day ime way or the other. 1 lent Dick Burke i*7 ; I let .lemmy lluuhe^ have s| ; 1 Li'ave dames Sheelin S7. CriMs-r.routiii'i/ : I had no con\'ei'sation witli lloliertson aliontthe election at any time. I didn't talk with lloliert son aliout any votes, or how they were to he eanvas<;rd The moneys I recei\'ed wi're on the li.nihlinL;' contract. \Vf had no talk that any nl' this sliould lie spent on the elec- tion. 1 can't tt'll to hov,' many jiiTsons I :^'a\e money I'm the [)n rpo.se of inthiencim;' their Notes ; I can ,ui\'e no idea. I y-ave money to twenty. 1 wenty-livt.; or thirty persons. 1 was ])i'esent at only oiic eommitt(>e meeting': ] think Roliertson Nvas there. I took n'l ]iart at that meetin;^. Moss, C d. (). — The ])etition in tlii'^ ease contains tlh' usual charin'cs of corrupt practices liy tlie I'espoiident him self and hy his a^'ents. The majority was 'VA7. There was no proof of cori-tipt acts on tlie part of rcspondoit himself, hut there was convincinn' and admitted proof of bril)ery by at least two persons, namely, Sarstield and John.son, who were his au'ents. Mi'. Cameron, counsel fm respondent, candidly admitted he could not deny the agency of the former, and tlie respondent in his evidence stated, "I asked Mr. Johnson to do what he could for me. ' I shall have occasion to I'efer more at length to the evi deuce hereafter, but for the present it is sutlicient to say the result of this petition depends upon the construction to be placed upon the l.')9th sec. of chap. 10, R. S. 0. That section is : " To pi'evcnt the expense and trouble of new ls7:»..l WKST IIAsriN(JS (2). ■)4;} M ■■" r rlcctions wlicii uniicf'i'.s.sjii'y ami useless, in rase oF a cocinpt act or acts lieinn' ('"iiiiiiitted liy an a^eiit, without the kuowliMlue ami consent of the camliilate, it' the cdrrupt act of acts was oi- were of such tritliuL;' natnrt', oi' was or weie of such ti'illiuL;' extent, that the I'esult cannot have ImcU atl'eeled, or lie I'easonahiy sUliptiseil to have licen ali'ecteil. liy such act or acts, either alone or in eoinieetioii with other illegal practices at the election, -.ueh eorru|it act or acts shall not a\-oiil the election." By SarsticM's own ailmission he Iti'iifcil at least seven votei's; he nientioneil two, ami stated he niiuht ha\'e luMin'ht li\i' more, .lohnson cidmitted he had s|ient >il .'>() in the |iiucha>i- of N'otes — for some he })aid Sj and \'i>y otln is Si. Iiut he thoun'ht the aveia^'e was S'i.."(). This w-ulcl ii'present sixty \otes : hut I ^'ather from his e\ic|ence the nnmlier was not so lai'i;'e I'Ut would exteiul to hetween '.hilly aii'l forty, so that we hu\e direct ])roof that at least lietweeii forty and fifty \-otels wer(> hi-iheil hy these two agents alone. It ajipi' red also from the evidence, that in clo-;e prox- imity to one of the ))olls situate ill (.'olemaii Ward, thei' • were two places at whicli spirituous licpior was ^iveii to voters; one of these was kept hy a man iiametl Walsh, and the other hy a woman named McNulty. It was not satisfactorily shown that the respondent was aware that this was heiiii;' carried on during' polling' hours, although shortly after tin.' poll closed he \isiteil McN'ulty's in com- jiuiiy with a jierson named Mnlhearn, who i;-av(\ him some whiskey out of a llasl< he had in his pocket. The I'xidence was not clear that .Mnlhearn was an ae'ent of I'e- -poiident's, hut it was proved that Sarslield, an admitted am'nt. was in hoth these places. He says himself, " Was in hoth McXulty s and Walsh's on the ilay of I'lection perhaps three or fotu' times : parties went in with nic each time." Morton, another active sup[)orter of respond ent, althoni;'h not an ai;ent, said, " Was at tlio ]jo11 in Coleman War ; Suistirld, Miilliinrn, ami MdiiIs wniki,.! fcivi'ly for Mr. lldlH-rtsoii . .saw |tt'()|»lr Muinc, jn,,, ^,,,1 a( (II It (if Walsli's mill Mc-Niilty's; was (Hicc at .McNiilt' with Sarsticld ; saw prdlialily twenty >>v thirty pcoiilc to the luiiiscs : (1(1 iKit, kiiuw wlicthcr .\I r. Iluiicrtsoi 1 IsllcW fh.'ic was ch'mUmu,' uniiii;' <>ii il t "iild tliiiik that aiiVdii there ('(iiiltl see that driiikinn' was ^'diii^' mi.' Tlieiv wdv se\('ial (itlier witnesses w Im ailinitte(l hejiiM' in tlmse twn )iliu'es (lui'in;^ jKilliiin' hdiii's, and while the |i(ill was ii|m|| in tlit'ir chisc prd.xiiiiity. jjy the I'llst sectidii, " Nd candidate for the iv]ire>cii- tatidii df any electdral district shall, nor shnll an\" dtlur |iei'sdn, either ]ii'd\ide df rurnish drink or other eiitertaiii- nieiil at the ex|iense of siu'li caiKlidate or dther jiersiin tu anv iiieetiii'j,' df electdi's, afdi'esaid. for tlie |»ur])dse di' pro- iiKitiiie' siich elcctidii, |ire\idus to di- diirine' snch election di' pay. (ir prdinise (ir eni;'iii;'e tn pay. I'dr any snch drink di' other ciitcrtainiiieiit, exc'e[it diily that iKithine' hciciii cdntiiinc(l .sliall c\t(.'n(l to any entertaininent furnished tn any such nieetiiin' oi' electdrs Ky or at tlic c.\[ieiise of aii\ person oi' persons at his, her or their usual |)lace ol' resi- dence." l)y tlie 1 I til suli-sec. ol' sec. 1> of the l^lectioli .\ct of ( )nia,rid, any \ idlatidii ol' this l.Mstsec. is declare(| t^ lit' a curru[)t practice. It is idain from the e\ideiice that the li(|Udr disncnscfl 1 U'se tWd jilaces w V as Udt lM-dvide(l Jit the expense ol' at tl cither Walsh or McNulty. Imt hy some other persons. cdiise(picntly was a cdiaupt practice umler the 1 Itli suli- si'c. df sec. 2. ahd\e referreil tii; and as il has hecu shown that Sai'sliejd took [lartiii furnlsiiiiiL;- this li(pior to \ oters. the rcspoUilent must he held respon^illle. so far as tic rc- su t of this [M'titidii is concerned, for such acts of his ai It was also struiiL;iN' nv. ■HI. i-ed I.V .M r. Keir that \\rvi' \\ as a eontra\'tjntioii oi this provision on two other occasions, ui ]ierhai)s three, namely : one, or jierhajis two, at the hotel kept l»y Sarsticld, and another at the residence ol' .Mi-, ji. S. Vouul;'. I thiid<, as respects the meeting;' at Mr. ^'dUllL;•'s. tliere was iidthing ()lijccti(jnahle : it was clearly witlii.i the IHT'.'.l WKST IIASIINOS Ci). .)+.) exception. Keiiifj; fui'iiislii'd ut his own r\|irnse iunl Jit his iHiiJil phice of residence. I confess I ili a eurrupt practice umler the 1 I th suh->ection of -cction •_> ^.t' the i^ileetioii Act, and two cases of per--oiiatioii. Thus there are instaiu-es of almost e\i'iy corrupt ](iaet ice t'urhiddeii liy tlie Klection haw. We feel it iiiipossiMe to >ay rlia: -^iieh tiunn'i iii-, ilie._;;d I .')4(; I'llOVINCIAI, ELECTIONS. Ia.d. 1879. [jracticos caanot l»e said not to liavu aH'ected tlie I'esult of tlio election, nor be reasonably sup])ose(l not to li;i\-c (loi,,. so. It' the present retni-n can be supported, owino- to tln' large majority of 887, that w(nild be to deterinine that in any case in which the successful candiiir,\\. Ai,KN.ANi)i:i: F. Mm iiMNAi,i», IxiKini iiiii' II I . (JiiiiKiioii J.iiir dj' J'dr/iiitiii ii/ —''iirni/i/ pniffifi .■i--Acf''< oj inj' iic;i — A'j'iiis Tin: (.'Oiii'ii'iii law (if i'jiL'liiiiil n^latiu;,' to I'iiiliamintary elections is in UiTC'- ill Ontario, ami apfilics to elections for tlic House of ''oninions. The I'lirlianientaiy law of agency is a special law, and is di leicnt ficnii the ordinary law of agency. In Parliamentary elections 'Jic priiuipal is lialile for all acts of his ai;ont, even where such acts ire clone con- trai y to the expiess instrnctions of such princi|)al. Mere canvassini,' of itself ide, witli costs, including the costs of the evidence on the per- soiiid eharges against the res])ondent. Till' ])t.'tition cont.'iiiUMl tlio usual cliarocs id" coi-iiijit liiaL'tici's, l»ut till' sent was not chiiiiicil liv the iictiiioiicr. :3b rM-m 548 DOMLVrON ELECTIONS. [A.D. wlio was the ansiicct!s.sfal candidate. The evidence artV-ct- in. Maeli'm''iu was an agent for whose aets tlie i'es])onih'nt was responsihh'. Mi'. Mae- Iciman was instrumental in overcoming tlie rehictanci^ of the responih'iit to hcconic a eandiiUite, He acted with till' respondent in \arious matters connected witli llie clcetiiui; wiMit to llu' factories at ("oinwall with liim : c'lmassed part (if the town; went to the meetings at St. AikIivws with the respondent ; held meetings for the preiiiDtiou iif t!ie election at his otiice, at whirli the |M lit personally attemlefj. It was a ele.ir ease of .;,i iicy. I']\eii two or three of these circuiiistaiiees alone, ]ii'i-lia])S even one withoiiL the others, would I'stablish iiU'eiicv clearly Thei'e was ni; .uithnrity from the resj)ond- riil to Maelriinun to cori-U])t the constituency, hut there was no nece.ssit}" for this authorit\- in order to render the rcspondont lialile for corrupt acts done hy Maelennan. The 'ntru-ting of large sums of money, as has lieen dune in sLMio cases in England, is only inw of the modes of appointing a chief agent, and is not essential to sucii appointment. Henry Samliield Macilonald must also he considered as an agent of the respondent. He camassed thi' township with the a])prohation of the respondent. He di'ove the tesponilent thi'ough the township and iiitroducetl him to votei's, and he did not on these occasions accompany tlit; respondent as a mere drivei-, for the resjiondeiit on two or tliree occasions waited for his convenience, showing that his personal attendance was considered desirahle. lie took sv) active a part in the election that he coiisidcr'ed liiniself justifieil in calling the meetings at St. Amlri'ws. At the iirst meeting he suggested to tlu)se jire.seiit what N..iiuld be done to further the election ; at the second he examined the results of the canvass. The evidi-nce of agency was very cogent. 1 think the general authority given to I). B. Mac'ennan and H. Sandtield Macdonahl emj)owered them to employ ". ll-" «<•, f if--''..> •■>-■. °" . ?>. . n' • ! I I fi .i ! .) or)0 DOMINION t;i-ECTIONS. [A.n. sul)-agents, for wliose acts the respondtmt would lie lial>l,. in lik'e manner as for tlit;ii' own acts. l)('si(l(,vs Mr. I). B. Macli'nnan and Mr. llciirv SjuidtifM Macdonald, tlie snl)-agents a])])ointed l»y tlieiii, and tliux: wlio were a])|)oiiited canvasses at tlic nleetinL,^s in ,St. Andrev/s and i)! town, must also \>r considered a^i^ents for whom tlic respondent is iinswerahle. With icference to the first iiieetinj;' at St. .\iidre\vs, ii ii.'is hee)i saiil tliat it was not re^'uhirly eoin-eiiid. Cei- taiidy tliere was less regularity and I'onnaliry aliom its caUin^' than is usual in such eases. lUit this re^ulai itv 01' formality is liy no means iieeessary. li" the ineeiin^ assemhles, and has the sanction f)f the eamlidate, tlii- i> sutlicieut to render tlie eandidafe liahle, W)]- its acts, and these of au'ents a|i])ointi'd liy it. The ohiect (>f tlie mcrt- ine's at St. Andrews was lo secure a can\ass of tlie towii- shi|), not merely to discuss election matters. Where (he nuiiilu'i' of those ])resent at a uieetiuy- is very larnc, that is a I'eason why all ])resent shouM not 'h- considered as heiuL;" a])pointed agents, it is clear in tiiis case that the whole 1 •')() or 200 present at the meetiiiM- were not ajipoiiiteil ancnts; cei'tain of them (Hily \ve;v requested to canvass their neinhhoihoods, and, to u-e the v.'oi'ds of a witness, " to interest themselves in the clec- tio.i.'" It is these [n-rsons alone who can he coiisidereil ■,{< agents. It is immatei'ial wlu'ther a conunittee he forinally or infoi-mall}- appointed. It is sutHcient if certain dutic- \)i.\ assin-ned to its mendiers and the camlidate sanction tliis assie'ument of duties. Here the res])on. Maclennaii, one of lii> chief au'eiits. He was ju'esent durini;- the meetings, and was there undouhteiUy to further his own election. !!.■ cannot he considered as a mere spectator. Being pre>i'iit at the meetings, he must he ju'esumed to have he(.'n cog- nizant of all that was done', and therefoi't" must lie con- sidered as having acnuiesced in all that was done. l"]veii if the resi)ondent ha iis/cr fusf (\ ()'.M.vV II. NO) and till- Wiijiiii cdxc (ih'iil, |.SS)d() not a|i|ily. In tliosc cases the a.ssociations wei'e witliout dmiht \ (ihiiiiMry. As to tlio nieetiiin's at MacK^nnan \' .Macdonaliis oflioe 111 ('ornwall, tlie |>ei'soiis who attended those iiieetine;s must lie (h'Oined au'ents of tlie res[)OMdent. These jiersoiis cxaiiiiiied tlie \-otefs" lists, appointed ean\a-'Seis, and iecei\cd rep(ji'ts of Ids can\a>s. The usual formalities, as to calling' togt'thei' tlie meetings, and the transaction III' hiisiness, a|)|)e€ir to ha\c liei'ii olisei'\i' examined the \-arious acts con- nected with the ti'ansaction, to see whether there is a <-eriupt moti\e. Where a e'l'ossly inadeipiate pi'ici' has lieiii paid for work, or '(tn- an article, it is clearly hrihery. And in the present case se\eral ijistanees of such hrihery I'ccur. In considering' the (piestion of coirupt ]iractices as atfectine- ;uiy particular election, we should also examine the whole evidence carc'fully to jiseei-tain the mode and ■"liirif in which the election contest has 1 n can-ied on; wliethei' it has lieeii on the wlioli' pure an is the same as if H. S. Macd(Uiald gave it himself. The evidence of George McDonald and that if ihiii- ions ditlers as to the auKJUnt paid, but this is imiiiateiial — money was paid. 1874.] CdUNWALI.. 55S In other cases Hemv Sandtield Maciltinald left the •rivingof the money to Geoi-jjfe McDonald "on discretion." This wa.s a direct a])pointnient of (leorge McDonald as a,i,'ent. Ani^ .■).')4 ixi.MINIoN KI.HCTIONS. U jy The l(i;iii n\' Sl.'iO til l)f])iiis is Ncry clearly a case i,\' lirilifiy liy Duiicaii < I. Md )iiii!il(l, a siilt-un'fiit. Tlir Inaii was t'oi tw'd yr;irs, witlioiit iiitciTst. a imlc liriiiu' ^1^,,,, to secure repayiueiit. 'I'lie nnte was originally drawn payalde with interest, Imt this was chaii,!j,('(l. l)r])iii> savs in his evidence that McDonald '' ,!4'ot nothinn' hut mv vote Tor the money.*" Is imt this a stipulation that hrpuis sliouM ha\'e the loan without interest iF lie would sote' Was it not a |)resent of the two years' interest '. Ai^'aiu, Morrisctt"' was an acti\r ai^ent. lie atteudcil tile nii'etinn's at Maclennan t.V .Macdonald s otiice in Corii- wall. He exannned the voters" lists. lie Ik-hI sj 40 entrusted to him. As to the dis]lo^iti(lU n\' this niuuev lu! o'ives a very confused account, hut the promise of Sj.'i to Fit/pati'ick s daughter was clearly an oiler of a hiihe lie said he would L;i\'e the money if she >^()t her father to \'ote. and the otler of a hi'ihe is e(|ui\alent to a hrihc, altlioneh it re(|uires clearer and stronL;'er e\ideiice to sup- port it. The payment of money hy Wood to Aaron W'al.sh was also illen'al. Here the note endoi'sed h\- Walsh was itaid by him L'o years an'o. I le consiilei'eil the payment a liai'd- ship, hut he does not deny his liahility. Thi' fact that tlu' money paid hy Wood was not furnisheil hy the respondiiit or eithei' of his chief agents, makes no difference. The endeavor hy Wood to restore friendshi[» was undonhteilly done to influence th.e vote. In tlie case (»f Alexandei' .M(d)onald, the exercise i,)' t'orh(!arance in oressinu' tin' iuilenient in the hands of Maclennan & Macdonald was evidently with the vit'W of inHuencine- the vote. These cases of hriheiy ai'e suilicient to I'cnih'r the elec- tion of the respondent void, and I sliall only make a few remarks on the otlier cii-cumstances disclosed in evidence. The case of Cliarles Alullins was a very g-ross ca.se. A stratagem was n.sed in inducing him to get into the sleigh driven hy Gi'ant, and in .spite of liis remonstrances he was driven into the country and thereby prevented fi'oiu ls74.] ('(•ItNWAM. \otinL;'. I cniis'Mlci' tlic coniluct nf l)..ii;iM McMillan — iu>tici' III' llir |ii'aci', will) \\u> |iri'si'iit, ami knew that an (lUtiiiL;'!' w a^ almiit to Kc cniinnit tiil am! \it iliil not in- t^ilt'rrc — as ilrsciA in^' ul" tlir stl'ulincst cclisllli'. 'Tile cast' is us i;T(iss a one us can well Im- ('(inccixnl. As t tlie same as the case of one senilin"' h IS own carnage. I am not i'ei|uireil in tliis case lo say whether tln' cor- ruption was so L^cnei'al as tjiat the election slionhl on that account he set aside, hut an eli'ction ma\' umlouhteilK- he \iiiil on tliat uiouml. ///-/(//h/v/ r«/.sc ( I (>.M. \' ||. lo), 1 e.xouerate the responileiit personally from an\' com- plicity in til',' coi'iui)t acts committed ; hut 1 think it my duty to say tlial I can scarci ly concei\-e that .Mr. i). 15. .\hudeiuian and Mi'. H. S. Macdonald would Jiaxe acted in the manner in which they u[ij)car to ha\'e acted at thi.s election it' tlu'V iiail apjircciatcd the gru\ ity of tlie acts comniitte*! hy them. .My judgment, theref(U'e, is that the election is \oid. Costs to lie paid h\- the respondent. I do not think that the fact that the personal cliarges against the respondent ha\'e failed should alter the usual rule that costs follow the e\-ent. The expense of the trial has not het'ii increased h y these jiei il d rsoiiai cnar personally niay he givi'ii, these charges must he made in the petition, (iil)ery, and was tlicieforo di.s(|ualiHeil as hucIi. The in(|iiirv uiih not I'onciuded, as during,' its pendency the I'lnj^disli Klection < 'oiirts hehl tiiat liribcry wiinld not dini|Ualify a petitioner : liiit so far as tlie evidence went, whih' it disclosed sucli a larj,'e expenditure of money iiy the p(^titionei' anil liis agents as to lead to the suspicion it was ni>t all expended for the legitimate purposes of the eleetioii, it ilid not show briliery liy the iielitioner. The respondent then eonsented to his elec- tion iit'ing a\ oid(Ml on the ground ot hriln ry Ky one of his agents with- out his knowledge or consent : flfld, that the general rnh; as to costs sliould prevail, and that the respomlunt siiouhl jiay tlie costs of the in(|uiry as well as the general costs of the cause. iseinhli', if evidence showed that corrupt |)ractices had lieen connnitted by a respondent, it would be the duty of the Court so to adjudicate whether the petitioner was willing to withdraw the charge or not. The ])t'titi()ii c'Oiitfiiiu'd tlu' usual (']iari,a's of corrupt praoticcs. The rcsponilfiit set up, !)y way of prdiininarv olijcc- tinn, tliat the petitionci' lunl liccn ^niilty of hriliny, ami tlicrcfoiT liail uo .status as a ix'titioncr. Kviflcncc was taken at Brockvillc in support of tliis alk\o;ation, ainl showed a larf^e e.xpemliture of money hy the ])etitioner and ills ao'cnts at the election complained of. It how- ever became unnecessaiT to proceed Avith the irujuiry, as, pendint,^ the investio'ation, tlie Eno'lisli Court of C-oin- mon IMea>;, in the La h ncisfon rd.sc, ])ri iilu'dtcr \. Ih'i'oceeuiisi'l said ai"tfi' cuMsiiltiiii;- witii his client he had found that there was nne ease oi' eoirupt jtraetiee eoiu- mittetl hy an a|i,'ent withotit the knowledLje and consent of the res|H»ndent, hut for which the I'esjxiiKh'nt was respoii- sihle to the extent of his seat, ami which would asdid the election; l)ut he did not admit any act of persoiuil hriheiy. Counsel for the ])etitionei' then stated he would not pivss the changes of personal hl'ihery, and would accept tlie avoidance of the election. Si'i{A(i(iK, C — The ease at ])resent d(tt;s not show any personal act of corrupt practice on the jtai't of the re- sponrock\ ille I'V petitioners own evidence, that tliere had lieen s])ent of h jiai'tiier's money ahout 8-'i,()()i>, w iUI'l for each \dte ( ast f or jx'titioiier. I us akiu:^,' an iuera'^c of !5() The j^lection ( "ourt at Toi'onto hav(i acted on the rule of i^iviun uo costs to either ])arty in interlocutory p?'oceedin;4's, as the 1; iw was unsettled in this respect. ( )n these n'pounds he asked tliat each party should pay their own costs of the pre- liminary ohjection. Ml'. JA'6'''/7A// conteude(l the in(|uii'y at I )rocK\llle \v;is not coiielufleil. and it was not known .vliether the cliargos aL;'ainst tlie petitioner wei'c true or false. It would he contrary to every pi'iiu-iple to assume the petitiouei' L;'uilty I)efore the iiivestieatiou was detei'miuetl, and in etlect to punis]) liim as in the way tlie I'esjxwulent asl I IV (lei)riv I' in^ him of his costs. Hut had tlu; investi^vation closed, and petitioner's status not heen ati'ected, he wouhl, of course, ]ia\e heen entitled to liis costs. It was not pro- secuted, hecause tlie respondent discovered, after setting f ;» IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I IM IM 132 1^ 1^ 1.8 1.25 1.4 1.6 -* 6" — ► Hiotographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 if. %^ Ua 558 Dominion i:i.k(Tioxs [A.l, nr IP •'If!* ■Vi .111 J' up till' pifliiiiinHiv <)l)juoti(»)i tluit us u matter ni' law, even if tnir ill fiict. it WHS iiisutHficiit. It wonlil lie an I'Xtnionliiiaiy i-fsult, that ji party plfiuliiii;. as it wcrt-, a special ilefeMce, wliieli lie ar relicNcd t'roni the costs ol" the |)i'iiceetliii^rs, Acrortjiiiij to the S(ui//ni,ii/>li>,i idsr f\ ()M. vV 11.221 to '225j, it ajtpears that the successful estiihlishnient of a reciiiniiiatory case i'>Ji'. > t:ike the case out of the ordinary I'ule, that the co.-;ts ^'ol low the event; Imt he contenils that an e\- ct'ption .should he made in regard to the costs of the inipiiry which took ]tlace upon the iireliminary ohjection of the respondent, that the status of the ix-titiuiier wa.-< r.nnihilated hv reason of his heiny- ijuiltv. as was alleifed, of })ei'sonal hrihery. It is conce. This is not a case, apart from the tpiestion of law, in which a ]»!iity can projieily claim exemption from the Lieiierai rule. I do not say what lui'^ht have hern tin' case if a clear case of j)ersonal i)riheiy had heen made out auainst the petitioner. It mii;ht have Ih'cu proper to n-- fu>e him costs in that case, Imt such a case has not heeii iiiadi' out. The preliminary ohji-ction was wron^' in j)oint of law. Its purpose to intcrce[)t inquiry does not com- mend it as a proper proceeilim^, and ii was deljeii nt in proof of the fact iillencil. My opinion, therefore, is that tlie.M- costs should not i)e eNcej)ted from the eeuetal costs to lie paid hy the re- spondent. (!> ( 'dill iiiiiii'" ./niirii,i\ 187"', p. 4.) N it 1 »' 9 i ' :)()0 DOMINION KLECTIONS. LONDON [a.d. Before Cmiei' Jisikm': HACiAUTV. l^osiioN, 7th to iDth Si ittpmln-r, /S7.'f. Oeoikje Phitchahd, Petlfloih'r, V. John Walkeu, Hex pond I' III. Krci'isivp <:rpvu' — /\'i':i/,oiiili)it'>(ilU. rldiiiiii- of' rnrni/jt prnrtinx Aiji'in'ij A/i/iud — .'C I'/c, r. 10, n. .{.; — J)i«/iinHliciiiii II f' ri'orted in 10 Caniuht Liiw JotiriKil {l>^7-i'), p. 2 have heen conunitted hy iind with tlie knowledge! and consent of the .said respondent nt the said election. The respondent filed a cross ap|)eal. The CoruT held that the circumstantial evi4. i i ! i f^t (9 (Jomviovs .fdiii'iKtl, lH7o, p. 24.) 562 DOMINION K'.KCTIONS. [A.I, WKST NOllTIIlMliKHLAM). I i liKKlMtK CnAN(i:F,M»U Sl'UAOtiK. (.IdliofKi;, .'■;'/( null Jillli S< iilfiiihi r, IS'!'). Wll, 1,1AM Li;MII:I. lintNIIAM il a/., I'ri;/i,,,n rs, V. Wll.l.lAM Ki;i{l!, lit SIX, inh 1,1. HespoiKliuf'-i ililiili'^-iiiiii ()/'(•()/•/•(//// /tfiir/iri M lii/ ,0/, ;^^< / ii'/ili.i(li,i'iiil in'lll'l ,ltlttl/S- (JllnfM, Tlio rcspondi'iit, iiweek boforo tln^ trial, si'ivcila 'inticc (ui tlir |i»'iiti»»in;r adinittii);; linlnry liy one of his a;,'ciits, and iiolil'vinL; the |trtiti(incr not to iiu'ur fiiithi'i lu.sts. At tiiu trial the ruHpondcnt, |)uriu iiit to thf notii.'o, j^avc ovidtMiic of hrihory hy an iiL'uiit, which thiM'oiirt held HUliiuiiiDt to avoid the cJiM'tioii. Tln! |K'titioii'r then contundi'il that iie had a rij;lit to .show that corrupt prauticcH had cxten.si\ tdy pri'»Mil(.,|, and that the rL-spondiMit had l«!in persoiialiv K"''ty of corrupt |>ractiotg. Ill Id, that the functions of the (.'oiirt woic judicial and not impiisitoriai, aii,-,ue as to the avoidance of tlie election on account of hnltery hy ai,'cnls. I5ut if iiii'identaily it should apoear, in tiie in(|uiryas to the pt'isoiial chaiijes a;,'aiiist the responihiit, that corrupt practici-s extensively prevaileil, the same would be certilied in the report to the Speaker. The petitioners then examined witnesses on the per.soruil char;,'es, whicli wtTe not prove. I, and in deterininini; tin; c|uestioii of costs, it was llrlil, that as tlu! pelitioiutrs might ha\e conic to court on the notice serv(^l hy the respondent, and ha\ e asked to have the election .set aside, and as they liad attempted, l)ut had failed, to establish the per- sonal charges, the respondent siio'ihl only pa- such costs as lie wotild have hail to pay haci the petitioners accepte ho notice served upon them before the trial. The j)i'titi()n coiitiiiiK'd tht,' u.sufil chiirn'i's <>t' coiTii|d pnicticcs. l*;irti('ul{ii-.s woi'o .servcil l»y pctitioiit'is ot" i)\/'. MiMiihud, QC, for petitioners. .)/;'. lii'tlniiir for respondent. At the openin<;' of tlie court, counsel for the respontini nisc (1 U'M. & H. 227); Rogers on Klections, iL'th Ed., p. M').'); (ih'iujiirrji cam {(uife, p. H); Urouj^li on Elec- tions, 20; Gailford nis,' (1 O'M. & H. lo) ; Leigh \' L,. ilarcliant, \2'\. He admitted the election was void on account of Itiihery l)y an agent witliout the knowiedi^fc of thu respondent. Tlie Chaxckllou: Twill re(|uirc evidence of the par- ticular case of hriliery hy the agent. The respondent then called a witness wlio was admitted to be an agent of the res[)ondcnt, and who proved an act of bribery. • The CllANCELLOli held that sutHcient evidence had hei-ii given, and that the election nnist be declai-ed voiU r M r M H K K L A N I ». 5«5 Tlu^ |)(!r.s(»nal charj^es aj;ain.st tlu; rcspnuflpnt were then iiroct'cilol with — the petitiniicis cxaminiiit; 'Mi witm-Hscs in su|)i)<)rt of the char^a'S. After the ar^'unu'iit of counsel, the followin;jf jiul<^iiieiit was HA(;(}E, ('. — The case involved anionj; other thinpfs -icrious chai'^es ai^ainst the responilent, and may he divideil into thice hranehes. 1st. A char^^e that there liiul lu'en such l»rihery hy aijents without the knowle, The other (|U('sti()U rciiiaincd as to tlii' jicisoiial cliaiLits sou^'ht to lu- fastened iipoii the responileiit. It was not attempted to he denied that on this ;j;round the iietitimi eis hail a ri^dit to <^o into ail tlie facts to estahlisli thrii case ; and if in doini,' su evidence of extensive luihciv had incidentally transpired so as to re.|uii'e a eertifieate uiid' i sec. 21), stih-sec. c, I would have so celtitied. In the ('urn- iriill cisi' [niifi., p, .'»47), 1 deeidt case would have been seiious if it could have been .su])- ported ; but, as Dr. McMichael fi-ankly admitteIiv><. Hiul tlif tiat couti'iiflictittii \>\ otlit-is «»t" matcriiil parts i>i' Ills i!vi«l(!nct', |ii(\t'iit his case liaviii;: any \vi'i;;lit. As to oases oi" this naturi', I may rtinark that it wouM \e. if permitti' ■ ■ ,1 i >f ■ o(i^ iHiMlNliiN KI,KCTI«»N3. \VU hjul takt'M the cuiirsr iiiilicntfd. 'Plifif nIiohM !••• iiitcosts U) the rrs|i()n. |». 7) N FACIA II A. ^1 P)Ki-()iu: Cnii:r .rrsTicK H a<;aiiiv. Si\i.\RA, jot It tuJJnd Octohvr, is:.}, NkII, lil. MK rl ,'e thereof; and no proof was ;;iven of a personal knowledge on his part of any of tlie specific wrongful act-, nr payments proved to have been committed by the persons ainonj,'st whom his money hail be«!ii dislriJmted. UrUI, I. That under tlu^ peculiar circumstances of the respondent's can- vass, and on a re\ iew of the whole evidence, the respondent's emphatic der.ial of any corrupt motive or intention should be accci'ted. 2. That the persons amongst whom the respondent's moneys had becu distributed by \V., and jiersons acting under them, were sub-agents of respondent, and that their c irrnpt acts avoided the eleetiim. Seiiilde, that no limit can be placed to the number of parties through win. in the sub-agency may extend. The election was set aside with costs, except as to the costs of certain charges which were unwarranted. A party, though successful, is nut entitled to the costs of all the witnesses he may subptena, nor \* tlie fact of them being called or nob called the test of such costs being tax- able. The petition contained tlu' usual charges ot" corrupt practice.s. ^H^^^^^^fT' ls7k NIAi:\UA. :.(1!» TIh' total vuti' lit the flfctinu was til'J, <»r wliii'li tin- icspoutlfiit rcccivftl '.'>'\('}, ami Mi. .luhn M Cuiiii- .■{()»!. Till' niatt'i'ial facts tliHclustMl at tlii- trial mr set out in tliH juil;,niit'nt. Ml'. IliiilifiiiH, i.)X\, mill Mr. Cnrrii , I'. >r |)t>titii)iit'r. .1//. liiihl iis(iii,i).(\, iiiiil Mr. (f liriiii, tor rt'spoiuiiiiit. H.voAHTY, C. .),, ('. P.— TliiscotistittiiMicy consists <»f tlio town a!iil township of Niagara. Six liumlifij and forty- two itcrsoiis \(it('(|, and tlit> it's|)oiii|t'Mt had a majority of iliifty. Tilt- irspontlfiit aLfrt'i-il to t'onif foi waitl on tin- iL'tli .January: tin- poilin;LC f'*"'< pl'iff on tin- '2'M]\ of .l.inuary, 1^74. 'I'Ih- ir-pdndt-nt is cliaiii.Mtn of tlif Stci-I Wi'i'Us ('oiiipany, of which Mi', (iiiiin i, si ictar*' imd acts as local treasurer, (iiinnwas a|>poiiiii'l on the l.-t lit' .lanuMi ,■, and only caiiH' to icsidr in Niai,^iii;i i the l.")th of Jannaiy lir>t. Their is no liaiik n^riicy or ■\pirss . liicc in Niai^aru. ( >ii .laniiary iMith the ii'spundcnt sent (liinn *>> Toronto with a It'ttcr to Mr. (i/owski.a stockholder and director (if the company. The respondent tohl (Iiinii that money wciuld lie wanti'd for the general piir|ioses of the election, iiiid also I'or his o\vn purposes and forliie Steel Wrnks. lie hail men then at work on his dwii |iremises. ( Jiinn presented the lett'i' to Mr. (Izowski, who went with him to the Montreal Hank andsp(»ke to the manai;er, who then nave ( Juini SI ,!i!)2.')(i, and he iufornieil respondent thereof. The latter an thorizt'il (iunn to dislmrse money reipiired for the election, cautioning him se(|Uenl occasions said the same thin in an open box in his stable. Just before he saw Hiscott standing in the road, and no doubt the 'attei- |ilaced it there. This money Thompson divideix mij l.s7-t.] \lA(iAUA. ■)73 As.siiiiiin<; for ar<:uiiH.'nt's sake that lU'ither CJuim iioi- Wilson actually intendetl to violatf the law, 1 caiUKjt fontvivo how they could have taken any course so cal- culated to arouse suspicion, and to make what they say was meant to ))e riylit appear to be wroni(, as the coui'se they did adopt. The res[)ondent trusts (iunn with the disltursinj^f of hi.s moneys. Tlie latter, on somehotly's ,su to warrant my makint; anv oriler now beyond directing, as I do direct, that no costs be allowed petitioners for any witnesses summoneecau.se a party is successful and entitled to the general costs of the cau.se, that he is entitle. p. TS. o7() If 1 DOMINION ELECTIONS. SOUTH HURON. [A.n, Before Mu. Justice Galt. GoDEUicH, :.'()f/i ami 21xt October, JS74. David Hoon Ritcfiie, Pi'fltiomr, v. Malcolm Colin C A M E iio N , Rt'xponde.nt. Exceim'i' crpi'tulUari' — Siihncriptioiix to churches — Appial from Eliction Jwl'/c — Coujlirtiiitj crhlence — Costx. The respondent was charged witli using means of corruption at his elcctimi (1) by giving up a promissory note and also 920 to one M., on comiition of M. and his sons voting for him ; the charge depended upon the contradictory oaths of M. and the respondent ; (2) hy giving a largi subscription to an election fund, some of which was expended for illegal purposes ; and (3) by subscriptions to churches. The respondent denied any corrupt motive in these subscriptions. The Election .ludgc. on the evidence, found that the respondent was not personally guilty of corrupt practices, but he avoided the olfaction on the ground of bribery by agents. From the judgment on the personal charges the petitioner ap saled : but the Court, on a review of the evidence, declined to set as' j the find- ing of the Klection Judge. The appeal was dismissed without costs, as there were strong grounds for presenting it. Per Ilatinrtij, V. J. — Candidates and agents should select less suspicious seasons than election times for exercising their liberality towards charitable and religious objects. (24 C. P. 488). Tlie petition contained the usual chai'f^e.s of corrupt practices. Mr. R. A. Havrinoii, Q.C., for ])etitioner. Mi: Bt'fhniic for respondent. Evidence was . 30. » I- I EAST NORTHUMBERLAND. Befohk Chief JrsTicE H.mjauty. CoHOUKd, f.'7//i Ocfohir, IS74. Roheht Cihsox, Petitioner, v. James Lyons Bi/'/, that the committee were agents of the respondent, that V. was a nunnher of the committee ; and an act of hrihery having been com- mitted by him, the election was avoided. Till' particulars not having 'jeeu properly prepared, the petitioner, while obtaining the costs of the proceedmgs, was disallowed the cost* of the particulars. The petition contained the usual charges of corrupt [ifactices. Mr. John D. Armoar, Q.C., for petitioner. Mr. Hodgins, Q.C., ucai'ly acav'lf'l Bei'ohr Chief .)i stick IIacaktv. (iCKl. I'll, •//■■/"/('/ ,/^// ycri mill r, /,s;./. .ImHn li'.uNsiiti: rl ,i/., /','lilli,,iirs, \. ( Ji:ni{(;K Tihnfcu (Mrro.N, Ui'spDinliiii. lirilii I'll III/ A[iini.< — ('hiiriji ' re8])()iiil<;iit was chivrj^'i'il with corrupt practices, in tliat, when can v.issintr (iiie (', ;i voter who Hiiiil ho woiijil not v,)te unless he was |i,iiil, he said he wa.s not in a position to pay him anything;, hut tliat il r. woiilil supjiort liini, one ol his (the respondent's) frieiulH woiiM come and see uliont it. The respondent, as he was ieaviii'_' tlio voter s house, met one K., a supnorter, wlio, after some conversation, wtMit intor."> house and ^'ave him .s.'i to vote tor the resi)iini lent. Theeharije d"[iendeil upon tin- evidence; ot the voter C". and his wife. The ic- spoiident denied niakiny such a promise : and he was sustained hy K. as to a convtM'sation outside C.'s hou-e. in which the respmidiMit iMutioiied K. not to ),'ive or [iiHuiiise ('. any money. Th" Klirtion .liidL;e on the evidence found that the respondent was not jiersonally implicated in the l)ril)ery of the voter < '. liy K. JHtore an I'"li,'ctioii .ludiie finds a respondent or any otiier person fjuilty \ of a cori'iipt praitici' iii\olving a personal disahility, he oui^ht to ijc ' tici' fi'om reasonalile doul't. Tlic petition coiitaiiieil tlie nsnal cliai'u'es of corrupt piactices. jiml claiiiie(l tlie .seat for Roliert McKiiii, the ilL'lV'ate iil>iiiiilitii('([ liy cuiisi'iit nt' liotli jifU'tii's. il.\(i.\i;rv, ('. .1.-1 liiiil tli;i.t sm-i'ial acts uf Li'Im.v wriv ciiiiiinii tdl liryoinj i|Ui'-.tiiiii, ami it was |ii 'IhiIv )!i('i'ilt'il liy tin- it's|>oiiil('nt'.s counsel thai tin' rlt^t I'll illllsl III' set as|i|r It ITIliains to lie srcll wlirtlli'l' till' r\'i(lcll('r lililids 1 miiif to tilt' rt'spoiiih'Mt a pi'i'Miiial kiiuwli'il^i' oy assent in aiiv ('ori'upt practiei's. 'i'lic only poitioii nj' ex iilnici' in thiv hcjni I't'ipiiiin,;;' to he considered is that i;i\en hy (,'aiiip!,r|l and his wife. According;' to the petitioner's \iew the I'espoiKJ.nt cjiii- vassed C^linphell, and lindiiii;' the man s vote was pii)l',.>,. edly I'oi' sale, he said to him that he the respundiiit I wjis not in a position to pay him anything', hut thai if (',nii]i hi.'ll would promise to snppoit him, he wonid see thai nu- of his friends would come aiid seeahouL it. Hi> w ii'e. wIm. was in lied, says that she didn't hear all the conx-ersatiiii;. liut heard the man ask for the voti-, and say that it Canqihcll su|)p()rted him, some of his fi'ieuds would call and see him. If I can lie satisfied that this took ]ilace, 1 musr lioM that this was an oder to hrihe, and such as 1 think woiiM pro\'e the respondent guilty of a corrupt practire. {'ainp- bcll .says that he saw the two sleighs on the road, and that after the res[)ondent had rcturneil, Kelly canii' up tn lii- hoitse, ciime in and ^'ave liim S."), telling' him to hr ii|' early at the ])oll to vote, and to come with Diuilop Ih then watched from the window, saw Kelly 140 down t'^ tl le road ami th e two sle iu'hs drive oti' toirethci', tli respondent's .slcij^li going tirst or in fi'ont. Now, in sucli a statement ot facts, tlie case against tlir respondent would seem complete. A corrupt otter, a frii'ii'i to come and do \vhat the respondent couM not do per- sonally, the latter going down to the road, the fiieii'l coming up and giving the bril)e, the respondent watcliiaL; T'^'^^m^l/mmmmm i>7+,] r promisi' : lliar ( 'ainplirll t"I.l him ill i|i'.-cl that his vutr was \\,i sale : that ]\r toM liiiii tliat he iiii^hr ho ill' ashauii'il to >ay so, ami a^aiii pl■(■^s^lI him to \(itr or promi--(' to vote I'or him, whicli t'aiiiiilicll (Iccliiic'l todo : tliat liiiaily ifspoiuli lit toM him to think ovrr il, tliat some oi" his I'l '.n ils wouM he comin- that moriiiiiL; to' tlir poll ami cotil 1 'uiii- liim with ihrm, aii'l thai '"he rt'spoinlfiit woiiM or much oMi^rd to him il' lie \otcil I'or him. I think thai it is very clearly provi'il in the oaths oi" the ie>|iom[i'nt. Kelly and Snider, that the jiarties in the .slei;;'lis did not l:o away toudhei'. hut thai the respondent and Snider drii\-e otf hel'oie Kellv went nji to ('a.mpl.ells iiouse, an.! iliat when Kelly came a'v\ay the lormer were not. on the I'oad. j can hardly Consider ihe discrepancy nniiiijiortant , as i' iie-atives one si'iioiis aspect ot" the case, the waitiii^ for KellyV. leiurn and the d^'partiwe toLjei her. As lo what to(d-; place on tii'' road, Mie re>pondent came . iwniVom the house, sayiii-' 1 hat ('am]'l,c!l wanted money .I'd he couldn't ,ui\e it. He intimato iie thou-ht that 1 riiajis Kelly, wh.o was an im]'Uisi\-e man mi^ht uo iiji to •'Miiphell. and {heiei'oir !,■■ v,anie(i him not to j^ive him y money or promi-M' an\"t hiii;;- to ( 'amjihejl, ami liax'iiiL;' >.r.d tins, he ilid not think that Kidly would lia\-e ^oiie to di.' house, and he dio\-.' oth ii'ir thinkiiiL:' that he would '•" so. and not knowing;- that K.-iiy had i^-oiie there. :".elly swears that ]ie di(l not l;'o there in C<)nsei|Uence of ■■mythiiiu' said hy tlie ivspondent ; and tin y hoth say that ir was oidy yesterday thai the respondent fir.st knew that !\''lly had n-iven money to ( "amphidl. What took i)lace ■'11 the road mi^lit have occurred without any coriiipt practice or idea on the resjioiident's iiarr. lie tells his •lids that ( amp'oell's \ot,e is oii'.M'ed for sale, Imt tliat refused to p.fomise or ^iNe aiiythiii^f, and told hi> ■nds t(» follow his e.xample. If one of them, heariii.;- ll'U tiii H 1^' [, ; il! I '. h ' » ' .? hi • • i ' } t ! . 582 J )< )M IN ION ELECTIONS. [A.l. tliis, clidsc to jijo mill luircliasc witliout tlic n'spunilcnt 's know li't||_rf or iisst'iif, till' latter' could not Ire Ih-M imthuu- iilly liiiltlc. I i'. ||' the ies|»ou(|ent said what is imputed to him he eertainlv acted with the most startling,' I'olly, laying' himseir whullv in the power' and at the mercy oi' a niaii of wIumu he pi'eviously had known nothini^-, and wlio on his iii>t aciiuaintance showerl himself to lie utterly venal aiiij n-ady to lie sold to the hi^jhest liidiler'. Notliin^- lia> cunM' out in e\ ideiicc to induce me to think that in his "vrnial conduct ol Ills canvass he Met ei| With II th iprudeiice or with aiiv indiH'er-cnct' to the \-iolaiion oi' the' law. 'i'he little (hat appears as to his j^^eiieral conduct r'aises the idea that li \s as i;-enerally uiniouncin,:^' his intention to sprnd i IM monev OI course, ( lout [)lace much I'eliance in ^iich H'eueral declai'ation. hut when the case, as here, r'l'sts mi one transaction, I cannot a\oid eonsidei'inn the wlmK' aspect of the canvass as shown in the e\ idcrice. It is needless to sav that the conduct of C-'amphell was not such MS to impi'ess one favoi-aMy. I^ncii the iniui who mi^'httake money for his vote niij;ht ])ossili|y shiink from takin^f tin- course he did if his idea was to lay a ti'ap foi' the I'espondent. Ill addition, the lattei' waitiiii; for" Kelly and the simultaneous depai'tui'e \v(,iulil play an im))ortant ]»art in any ai ■count of the transaction. Ir IS ui'ij'ed that lu- is direetlv corrolioratcd hv his wife. Tlir latter heard only part of the conversation of what the respondent said — and he .-iwears he did say somethin<,'— ahont some of his friens:{ iliijif ill siiiiiliir ti'ials, ami ImM llif cliar;^'!' not proNtu I am told tliat willi llic wire's statt'iiifiit tlif wciLjlit nt' ( i- ilriK'i' prcpoiidcriitt's aLjain.st tlic ic.s|ioiii|ciit. I ii|i]irt'ciatt' tlir rnrcc of tliis ai'j^niiiifiit, ami have ;^'ivt'H it all llir con- .sitjcratioii in my |io\V('r. 1 tiiiiik, l)t.-i'or<' I liuij till- r('s|ionili'iit nr iiiiy otlicr man 1,'iiilty ofaconnpt pi-actici- invoKiun' a jirrsonnl tjisaliility, to say notliini; ol' tiu- cfU'ct of it on cliarmtiT, I (iiiMJit (o lie iVcc IVom rcasonalilc doiil't. I lia\r llic licii\y la>k iiii]Mi^ri| on iiic to |iroii()ini('c ii|miii his '^nilt or innorcnci', mill I am lionnd, lioth |)crsonally ami jnilicially, not to cniidrmn mitil my conviction is clear ami nnliesitatin:^. I I'lrl liound to say tliat I entertain the ■^■iii\e--t doiilits as lo whether I can vcntnre to place implicit truth in ("am|i- liejl's statement. < )n the cunt rary, I think its acenraey is e|ieM lo seiions (piest ion. It is Hot iiecessary that I say it M'ems to me a mere i'ahrication, e\eii if I think >o. It i^ siiliicient it' I think it too douhtrnl to he relied upon to wair.'int the condemnation of another. It' I eri. as I have 111) doulit many piisons who I'eel keenly in contests of this ciiiU'acter may think I do, it is lietter that it should he on what is si;.,'nilicantly called the safe side. I had occasion in a icceiit tdection case, when tlic con- cliisiiin of personal culpahility was powerfidly piessed on iiif, to L,dve many hours of painful consideration to the duty of a jud,i;'e ill such cases. I have come to the run- chision that 1 liest discharj^'i' the duty cast n])i)n me hy ilrcliniiie;, on such t,'\ idi-nce as is now hefon' me, to lind tliL' respondent personally liahle. I lind that the respondent was not dtdy elected, and tliat his election was voiil. I order tliat llie respondent <||) pay the petitioners' costs, save and except such costs as may I)e on taxation .shown to have heen pro])erly incurivd hy the respondent in conscipience of the allee'ations as to asrrutiny of votes or the ])ollin,L: •»!' illee'al vot(;s, and the player for the seat as claimed hy and slated in the j)eti- tioii — which allei.;ations and claims were al>andoned hy petitioners at the opening of the trial, and which costs are i. I )S4 Do.MINKiX KI.KCTIoNS. [A. I. U) 1m" ])ai, [I. 14' NORTH VICTORIA. Befoue thk Fi.kction' Conn'/''- 'reUiiNTii. .'li//i ■/iiii' (iiiif ti'!/i Juh/, IS^'i. JlKCTol' Cam HI! ON. pi I'll I V. .Ia.MK.H .MAi.r.KNN.iN. R 1 1 SI >l I II I l> ril. Lh • iiindoi) Ebrii A'/, J,- ,.), n il I'l /iiiijirr/in - Ciiiiilhlat' (I jn I'lt'ioi,' i~ I'rdbninai-ij ohjirtlon-t on hrVurji, (rintin to I'aii'liilatcs ;it smnc futii )f that Aut ; re ch'ctii'ii. 20 uf that Act ref rnii A caiiilid.-itu may hr a pctitimu r altlioiiuli hi.s projicrcy i|iialiticat 1011 ,ie (h'lLM^tivc, it it was not ikiiiaiidid ol liiiii at the time of hi.s clceti'Oi. If lie claims the .seat, his want nt 'lualifieation may he urtieii U'^ain-t his })eiii^' si'.iti'il, hut ho may still show that the respoinleiit was not iluly ek'Cteil ifl le hO charge in iii.- ■titn.n. Tlie ileliiiition of " corrupt piactiecs ' in sec. 8, ami the etl'eet of sec. "JO )i' ( 'onti'ovei tcil !• JlKlj :e,s to tl ■^[icaf iiM-tions Act of IST-i •'^'^ til the rcp^'Ft of Kk-otion kcr, consnlen The lirst principle of I'arli.uiieiitary law is tiiat election.s niU.-t he free ; aii'l thcri'fore, without referring,' to statutory ]irovisi(j!is, if treiitiiii.' w;is i-arried on to such ,ui extent n« lo amount to hribcrv. and umii;' ntjuenee was of a character to ali'ee'; tlu' (dectinii. the ele.tii d.l U d. A sii h tl vot e lirou ;htl lonie to a candidate would tlin.w douht on his whele majority, ami would thercfni'e annul his returii. On a iirelimiiiary olijection to a petition elaiininL; the seat on a serntiiiy, the Court declined to .strike out a elaiiae :u the petition which elaeind that the vote.s of persons uniilty of lirihery, treatiiia anil undue intlu- Id lie struck oil' the iioll. The j,'ive,' of a lirilie, a- well a- the euci', lOll receiver, m.iy he indicted fni- hrilierv. The Judges piuseiit were : Kicliipls. V. .1. ; .Siiraifffe, C. ; :iinl Hauiirty, C. J. C. I'- mmm 1n74.] Noinii vi.;n>i!iA. •)So Tla- Ciiurt (loeliiud, in the present state of the law, to exchidu in(|uirv as to the jiaynient of travellini,' e\])i>nses of person^ j,'oini; to anil letiirniiiu' from t)ie poll, inasmui"' as s-iieli payment miL'ht amount to l)rilM-ry. r.\ tiie jtnininiun l'",leeiions .\i't of iS7;5 the i|iialilieat;on of voters to the House of Commons was regnlateil liy the Ontario l^loetion Aets. The asses.smi'nt foil is conelusi\e as to this amount of tlu' as.sessment ; liut the ini'i'e fact of the name of a j)erson lieinj,' on the roll is not eon- clusive as to his right to vote. The lu'tnrnin;.' Oltieer is hound to record the vote; if the person takes thi' oath, hut that is not conclusive. A petitioner iTaiming the seat on a scrutiny may show, ;is to votis lj()lleil for his o]ipoiient : (l)Tliat the voter was not 'Jl years of agi^ ; (l2) that he was not a suhject of Her .Majesty hy hirth or naturali/a- tion ; {'A) that he wa.s otherwise l>y law prevontiMl from voting: ami (4) that ho wa.7 not actually and /»/».( jirli' the owin^r, tenant, or (jceupant of the real property in ic-peet of which he is assessed Mistakes in copying the voters' lists should not deprive legally i|ualilied voters of their votes any more than the- nanu's of uiMHialiti( d \ oters Teiiig on the list would gi\-e them a right to vote. But the mere fact that the lists wore not coi'rect alphahetical li^ts. o.- liad nol the' correct iiuinlior fif the lot, or were not properly eertitied, or the omitting to do some act as to which the statute is diu'ctory, is no ground for si't- tiiig aside an election, uidcsssomc injustice resulte'd from the 'imission, ur unless the rcsidt of the election was atl'ectcd hy the mistake. This ]H'titi(m \v;is juvsciif^rd Iiy tlic dot'eak'"! caii'li'latc au'.'iiii^t tilt' rcspoinlriit, and oontaiiicd the u^nal cliarLifs of C'liiiiiid practices, and claiuicd tlie scat dh u scnitiny lit' \ntos. Till' vote at till' flcclioll was : t'lif r('s]iuiidctlt, .')(; !-, and ill)- ]ictiti(>ni'r. ■"(!(■. It on a scrutiny, Tlic ivspoiidciit tiled jii'i'liniinai'v nlijcctiuns ti> tlic staltw of tin- ]ietitinnt'i', allco'liiu' tliat ho liad nut tl :• iiiopcr i|nalitirati(iii i-ciniii'cd hy ia\v to cul itic liiiu tu lie clrctod a niciiihrr nf till' 1 ' 'ix' ot (,'i •iiinmiis, and also to llic t'll'iiwinL;' ]iai'a'g'ra]ili> of tin- iiidilion : ■■•">. Tliat till' said ivs|ionii"nt was. liy liiniM'H' and oturr lirr-i>ns nil his hcliJilt'. u'uilty of luihcry. trc;ilin'_' and inidiir ii'iinciici' lici'nj'c, (hnin^' and ai'trr the said clcctioni 'vlicndi_\ he wa-' and is incai>acilatrd rroiu srrvin'^ in Pariiunuiit fur the s.aid cK-cioi-.'ii di-trii-t, ;ind tlir said il'Otion ami return of the sjiid .lames Macleiman were Hid are wliolly imll and \ nid. '■ k 'Tiiat inanv |iers.in-~ vot'Ml ;ii the ~,;iid election, and Were reekoiird n]iiin t'le |ioH for l!ie s;iid .laiiie> .Maelennan, wiio Were '^^iiiltv of lirihefv. tiviitiii^- or iiiidiie inlluence, 1 * -;■ A.: Ah, I o,S() DOMINION ELF.ITIONS. U.l). aiul wlio were bril/CMl, ti'catfil or unduly iuHucucril tu v()t(_' thereat for the said James Mach-unan, and tlial thi- votes of all such persons were null and void, and Ku^ht now to he struck oft" tlie |)oil. " ."). That many persons were aihnittcd to vote and i\\<\ vote at tlie said election for the said danirs Maeleinian. wlm were not entitled to vote tliei'cat oi' to have tlicir iiauio retained oi' inserted on tlie voters' lists foi- tlic said elcc- toi-al division, hy reaMiii of their not hcinn e several munici[»alities, or suh- divisicjns, or wai'ds thereof, together witli the nundier of the lot, or part (jf a lot, or other descri[)tion of the ival ])roperty in res])eet of which each of them was so i|uali- tied ; nor were such voters' lists duly cei'titied acconliiiL; to the statute iu that hehalf, hut the names oi' divii- persons not properly entitled to vote at the said election, and who voted for the said James Maclennan, were iia- properly inserted in such voters' lists, and ought to he mmmmm 1.S74.] NORTH VICTOIilA. struck oif the poll, and the names of diveis peisons who wt'ie })ix>pei'!y entitle(l to vote thereat, and who tendt'icij their votes for your petitioner, were oiiiittrd fi'om the s;ii(l voters' list, and onu'ht to he added to tlic poll. " 12. Tliat the polling sul)divisions or wards in the said electoral district were not the sanir as those usc-d at the lust pi-ecedinu;" election of nieniht'i's of the liCg'islative Assenil)!}', an the tliird [laian'raph was that even if the respondent was, hy him.self oc other }ier- sonson Ins hehalf, guilty of treating ami undue influence, as alleged, such acts would not incapacitate him from sciving in Parliament for the said electoral district, nor reiiilci' the saiil election and n.'turn of the respoiideiit null ;iiiil \()id, And as to the fourth, fifth, ani'iH'y-(J«'ii('i'al of ( )ntari()), ninl Mr. I'tilh II lie. I'or i'cs|i()nil('iit. Mr. F. i).4ir, for pt-titioiu'i-, supportuil l\w siiiiiiiinns. Ukiiahds, ( !. .1. — Section H of tlic |-5i'itisli \,.it]| xViaL-ricji Act, I S(i7, enacts that, until tlic Pailiiinuiii nf Canaila otlun'wisL' pi'oviiL" , iiii iaws in I'oi'cc in the v(.\-,..;i| Pi'o\-inces of tlic T^nion, n'hitive (alllonL,^st other niatti'i- to the following;-: Tlie i|Uulitications an, of the Mouse of AssfiiiMy, or Leifislative Asscnihly. in tlii- sex'ei'al l'ro\iners. tlic xoters at elections of such lucmlM ix, the oatlis to lie taken hy voters, the fctui-niiiL^' ot^icels anil their iluties, the pro('ee(linL;'s at I'K'ctions, etc., ^liiil] res]iecti\'el V ap])ly to elections of nienihers to sei\c in the Mouse of t'o)iiniei/.ed as of freeholil foi' his own use and hcnetit of lamh or Iv'nenK.'Uts held in h'vr ami connnon soccau'c, or seizcl or pos^es-ved fnr his own use and heiielit of lands oi- teiie- inent-> hidil in tief or in I'oturc, within tlie said Province of (, 'anada, of the value of h\'e Inuidi-eil pounds of ■>ti'rliiii;' money of ( h'eat Britain, i>vt'i' ami alio\t' all rents, eharues, niort^au'es, au'l incundirances charL;ed upon am! ihie aii'l pavahle out of or aM'ectinu' the same; and cver\' i-ninll- dii.h\ at siK-h election, hefoi'c he shall he eii))ahle of heiir^ elected, shall, if re([uireil l>y any othei' candiilate, or liy any i-ieclur, or hy the returning- otlicer, make the follow- iui;' dcelaiation : '"1. A. 1>.. 'lo ileclare au'I testifv that 1 am ;ir law or in i'(|nity a^ nl' t'lvcli'iM, Wtv my nwii um' aiwl li.'iu'lit. i)t' laiuls di' tciniiiciits licM in I'lci' aii'l ('iiiiiiiii>ii ^dccau't' (f'l' - of |i\i' liuiiilicil piani'ls of -triliii'^- m on ry ,i\ ( liral Hiitain, uVfi' anil alio\c all rent-. mort;^'au''i's, cliai'iirs and incum- lii'ancf.-. cliai'L:,'! i| npon oi' i]\\r an- lirccinic |ros>c,-.sril of tlic --aiil lan'U anil tciK'mrnis, ur any pait tlicifof, fcr tlif |>ni'}iosr nf i|Ma!ifyini;' oi cnalilinL;' me to l.c irtnrni"! a mcmlicr ot' till' Lrni,>Iati\-c A,-M'iiihly oi' the l'ro\incf of (/;inaila.' Sec. '\{'k Con. Stat, of ('anaiia. caii. (i, recites tliat nndi r till' Instil .section i.f tile I'nion Act escry i-amliilate Nliall. if !i'i|uii'eil, make tlie ileclaration, and then pi-oceciU to iT.nct tlial e\-ery sndi camlidatc. when inr-ininill ij i'ei|nited a^ afoivsaid to mal-:e tlie deelai'at ion, si mil. Iiefme ]ii' -.hall he elected, :4i\-e and insfi'l at the fnot of the declaration ivijiiired of him a coriTct description of the land.-- oi- tene- iiieiij-, ,)n which he claini> to he i jiia.litiei' accoi-iliiiL;' to law to he elected, and their local sit nal ion. hy addiiiu iimiie- iliatelv aftei' rhe word " ( 'aiiada. " which is the last wnid m the sai'l declaration, t he w urd And, I fnilher decia re the lands ol' tenements aforesaid con d.-^t of, \'c I nder lioth the I 'nioii Act and the ( 'oii^-oliilated Statute, wilfully false stati'nieiits in relation to the i|iialilication make ihe party u-iiilty ol' ;i nu'^demeanor. and liahlc to the jiains and junii.dnnent incurred hy [lersoirs miiliy nf w'.iful and corrn)it pe'iury. "'e(.v ■, I II i" ( 'on. St;d;. caii. ti. etiah I es a candidate to ma I the declarat ioii sdlniitarily hefni-r a- well a> after t he date ef the Wl'it of election. Suh-v(.c. li. •■ Xo siicli declaration, when any candidhtc is leijiiired to make the -anie hy any other candidate, or hy any elector, or l>y the returning' otlicer. aho\c prnxided. need he >o made \\\ sijch candidate unles-^ tl le -a me has I. CI 11 {ier.s(jimlly reijuired of him on or hefore the iTay of ?-■! 5!J0 DOMINION ELECTIONS. [A.D. -1^ ■ ; .}■*,■■■ nomination of candidates at such election, (iO(] hi'f\,ri- u poll lui.H Ih:<:ii (jriintt'il. and unless he has not ali'eadv nunle the same voluntarily as he is hei-einal)Ove allowed to , fait. 2s, ■c. ID. i)iii|iiaini iiu' of .-ui iiiiilue iftiini. or niiilu e I 'Iff 'le ivturii jlt'tltluli. c tioii i>[' a iik'HiIht, or of no r turn, or a y siiiiir i>fi\-aiil election. We have heen ret'crrc'l to tlie Kit, lU, lit i-iisr (:] |^,j,] l(i:3, lii.'i [17n2],) whei'e it was dechh-d tlia! M.'s elect havin'4' heen declared \oid hy a conuiiittee, on the ^'iMini' I'll )t' hfihei'w and he stood on tlie v icancv, and lieni-' uhsik t'i_'>sl'u], petitioned a,'_;a i list t lie return of his opponent, it wa> ohjecti'd that a-^ he could not le^'ally he a candidaii'. 111.' could not petition. Tlie coniniittee resolved tliat the aid .M. wa> not elii^ihle to hi tl le vacancv occasiom tl le said resolution. He was, tiuuxd'ore, not pennitteil t' jiroceed. It is not Very clear il' a nc'v election wa-> ]iraved for. Ol- thai the iviuriiof the sittiiiL;- irieiuhei' ini-Jit hr declared \-oid. T leiv were (dectors who Wt'Vi' p-riti« Mler^, and their petition A\as trie>l as to the charge's of hijl.i'iv. wliic'li weiv decideil ill l"a\ or of the sittin^j,' nieinher. In tile Til n at II)) I'll.' iS:)| (n ferred to in W'olferstan '^ Law of Elections at [i. s. and Perry and Kna]ip'> l\!eeti'>ii < 'a-e<. 1(1!), note;, the olijeetion that ]jetitioner could net •eau-e the sittin<4 nieiiiher was ]irep>ared tn prove liriheiy aiiaiiist him, was o\'eriuled. t HI K'eei I. I II niri/ii riisr v. Sc Iv. I()!), 11.), the petit loni.T hail In the 1 ivfusi.'d tl.) take the (|ualiiicaliou oath when caJled npeii. 'idle committee held that, not ha\iuL;' complied with tlir neces.sary jirovisions to L;ive him the cliaraeter of a can- diilate. lie had no title to pi'tition : S^i m/ /rlr/i msc ii,',.i. \V)\))y(i rmi (ir! iiL.-ai'l :\ \m'\. ■llTl'l"!. lUrUt, il tl\:it til" .1 l.y tlcil t" ir;iyi''l ,,_,•],[ In' i.vil'fiy. ■r. i■(■l•stan'^ i':ii'Cti"i\ ls74.] XOUTH VKTolMA. 393 >ni . 1 ;iriM ilU-T 1 t. liivl \lllOll. til kitli tlu' :ici,'ii"H- Unt a jiei'soii alk';:^iii,t; liiiiisclf to lu' a cainli'latr is en- titled jiri mil fdi'lc to j)ctitioii, uiilcss liis disijuali Ilea t ion i^ iiKnIous and incontestaliK' : /.innloinli rr;/ C'isi W. x \U: ■2\^}. It is no olijcction to tin- ]ictition of clcciois licin;:,- I'l"- (■(,'cdcd will), that tlicir candidate is disipialilin] : <'•>!- flhshr I'lisi- ('.\ Lnd. I ()•»), tndcss, si nJilr, iln' jiriition mili/ claims tlic scat for the candidate on the Miiiinid that lie had the majority oi' leLjal \-otes. In WoIfei'stMn's hook at ]•. .">. I'ei'efiin^' to the jictilinner lllldef the lOllLilish Act,;is to ;i [lelx.Ul wlio Voted, or lijld ;l riu'ht to \'ote at the election to wldcli tin- jietiiion relate^,, the atitlior say-', tliat this means tho->c wlio liLhtt'ully \'ote C/irslnrr r,ls,'(\ \>. \{. A" 1 ). 21 i) : P>. ,■"•;-■/,■ r,/s, .:i()th .luni, l.s2(): ri,tifr (1 i'. i;. ,v 1 >. 7d/ : ■\\\'\ Aijlrnlnirij msi {ibid. >"Sl); Rogers on l'^li.'Cti(ai^, lOtli Kd. -l-dS. Ill the second edition of the i.aw of Klection>. hy I.oi'jli ,V l.e>hircliant. at ]). |n,s, it is stated,, '-.Vlthou-h the woi'd- ;f the Act say on.' or moi-e. it is p'ud.'Ut. p!-o\ided the p.'tition oe pivseiited 1 ly electors, to include ->ome lavL^oi' iiumher as petitionei's. in ca-e an ohjection should he taken tliat thoU!j,h they had xoted. they had no li-ht lo vote at the election. Care should al-o he taken that idl the petitioiUTs should, as far as po>>,ihlr. he \-oter> wliose Votes cotild not he impeaclud. If thf ]ietition is pre-entod hy a candidate, it means hy any jieison elected to >erve ill I'ai-liament at an election, an/(jnne(l. In thf 'ind e(|ition of Lei-ji ^v i,i' Marchant's Law of Elections, at pa!j,e 7'i. referrinL;' to the |iractice, it is stated, " 'J'he ^'eni-tal cliaru'es would usually lie i-'one into first liv the petitioner, and at the close of his case, the respondent's counsel })roceeds not only to answer the charges a^jjainst the resjxnident, hut tf» open counter eharu'cs aLfainst tlie petitioner (that mu.st Vie when he i- a candidate). If the ]»etitioner is dis(|ualitie(l, a sciutiny iif votes may still taki' ]ilae(' for the pui'iio not really a majority of lenal votrs, even thouu'h the ivsjiondeiit is declai'ed not to have hecn Li'uilty of corru))t ])racticfs : "" and the following lan- Liuaue of IJaron Martin is i|Uwted : "The .piestioii in the -crutiiiy wouM he which of these ut-ntleincii had the iiiajority of le^'al votes, and assuming' tlu' ])ftitioni'i- to have heen personally incapacitated, that would not havr atfictrd the \'otes of the pi'i'son- who u'as't' rln'ir Notes for him, they liein^" ij;'noiant of it. They wunjd he perfectly ^eed votes; and the persons who were tiie sup]iorteis of the petitioner would have a I'iuht to have it deteiiiiiiieil whetliei' or not the respondent was sent to Parliaiin'iil hy a IfLial majority: " York, West Ridi ikj, Sunt/wrn Jjlri.sinii i! (»M. \' li. 21.V). The lanLjuaf,^' of Willes, J., as follows, i> also cited : " A!i;ainst any luemher, therefore, who is elected in the first instance, any one directly intereste I,. '!'. X. S. (i^H) it was lil'^V.l that as till- sitting' mumltt-r ha«l liccu unscatcij t'of liri'iMTv liy his an'cnts. ho had no further interest, juid h;i., sjiid : " Is not tin- sitting' !>!rii|. l)er a respondent in respect of every matter that vmi cliarjjfe in your petition, ami in respect of evt'iy claim vmi make in your petition, and has he not a I'iu'ht. as //.//•/„,/ been a caaillduti', thounii he may he unahle to jiroted his own seat, to show that you are not entitled to it :" " We think the wei<,dit of reason and authoi'ity is in favor of allowing' a candiilate to he a petitioner nwli'v the statute, thoUij;h his projx'rty (|Ualification may hu defective, if it was not demanded of him at the tim. uf liis election. If he claims the seat, his want of (puditica- tion may he urged aj^ainst his heing seati-il; Init he niiiy still show that the respondent was not duly elected if Iw so charges in his petition. By section 20 of the Dominion Act of the last session of Parliament, respecting the election of niemhers of the House of Connnons, it is provided that from and after the passing of this Act, no ([Ualitication in real estntt; .shall be reipiiredof any candi cimc'tcil tliiit tlir Act ipmsm'.I liv ilio Pui'liiiiipnr uf t'aiiiiila in tlir .'i('>tli \iiir i<\' lln Majt'sty's ri'l^ii. intitiili'l. " .1 // .1'/ /" nml,! /• in/Kii''i ri/ n/iii'isnni Im' lh<' ilirtmit nl ni'' iii'n !'■•< /'» sr/'/v i ii tl" llmisr (if Ciinniiniis," i- Iinrliy ic] ifiilnl, cxcclit oillv ri"' t'p clrciioii-. licM, f'lLihi ■ ficijuiivil. (ic lialiilitirs iiiciirii'il iH-forc till' t'liiniif^ into fun I' tlil> Act : ;mii| im ciiiict- in''iit or |)iN)visi(>n citntaiiird in any Act ut' the Lci^islMttiri- mI' the hitc Pi'o\ it ICC of ( 'ill II la, III' of any ut' the rii>\iiice> iiiw 0111)11 >--iii'.;' the 1 )iiiiiiiiii)ii of ( 'aiiaila, refljicct iii'4 the cli'Cti'ill (if Uielllliels (if tjie l^lecti\i' llMll^eof the jiCLii^- latui'e (if any -uch I'loviiice. shall ap[ily tu any electiun iif a llieiiilier iir Uielllliers (if tile lloUse iif ( 'i illl Im ills lieji 1 ('//«/■ flir jiil.ts! Ill/ fit' l/iifi Ad, except ollly sllch eliact 1 llell t- ami pi'Dvisiiins as may he in furce in ^iich I'nAince at the time of such la>t nieiitiniieil electiun, relatini;' tu the (|Ualiticatiun uf electurs aibl the fuimatiun uf \uters' lists, which will apply fur like purposes tu electiuns uf niein- hi'i's uf the iluiiseuf ('uiiiniuiis a ■> pruxiiled hy tliis Act. JjV section l-'!'i, it was jiruvideil that the Act shuulil cum,, into fui'Cc on tlie tiist day uf duly in/xt iiftei' the pasdiiLj,' tliereuf. W'liei'e pi'oc'tjcdine's have lieeii taken liefun." tlie pa>-iinu ef tlie Act I'cfcnvd to, lo .M't aside the election of a nieiiihei' fill' want of the property iiualitication reipiiicd hy law, at the time the election took place, can the i^Oth sectiun uf the Act aliove ijuoted lie successfully invoked tu aid tlie iini(ualiiied candidate, and destroy the I'i^hts of the l"titionevs ? if ]n-oceedin^'s in the Election ( 'unit are tu lie analu- '^■'Us to suits in other courts, then tlie rie-hts uf tlie liaities ouelit to lie deciddl according:' to the law a-^ it stood liefore it was rejiealed. No douht there may he cases where persons may lie (lepii\-ei| df rights and iviiiedies which they had when the action- weie cuia- iiienced, hy tlie ett'ect of some Act of I'arlianient. But then it ought to appear that such was the intention of the Leoislature in Dassina- the Act, or that such result ■ c )98 DOMINION ELECTIONS. I A.D. ) 1 fel \vub- sec. 8'), that " Whi'ii any Act is repealed, wliolly or v.i part, and other pro\i>ii)ns sulistitute'di, all officers persdii-. b(jdie^ piilitic ')!■ cor[iiirate, acting mid^T the old law, .shall continue t'l aet as if ap[iointe(). "The repeal uf an Act at any time shall not atlect any act done, or any right oi- right of accimi existing, accruing, accrued or established, oi' any pi'u- ceedings conniienced in a civil cause before the Mini' whi'U such i'(.'[)eal shall take etiect, i»ut the proceedings in such case shall be cniit'oi-mable, wluui iu'ces,sary. to tin' repealing Act." Sub-.sec 87. "No oti'ence committed, and no [)cnalty n: forfeittuv incurred, and no [irdceedings |ienul>- ly or i;; per.son-. aw, shall u'Nv li^v.- all \ii'"- vip illVl u>^i-tfii' V 1»- V:- iiiilffi'.i'' III 1 1 II II ':i' \V |ilovi- \V. lae slial! if aetioi! any I'l''- the tiui'' occu'lin'i- ry. to tlh' )eualty ": 1874.] NORTH VICTORIA. 5!)0 any Act at any tiuie repealed, .shall ho affected hy the ivpeal, except that the proceedint^'s shall he conforniahle, when necessary, to the ropealing" Act ; and that when any ' 'ualty, forfeiture or punishment shall have Viccii r.^iti- n'ateil l»y any of the provisions of the repealing Act. such provisions shall Vte extended and ajjplied to any judgment to he pronounced after such rt.'peal." The section as to the property (jualitication eat in I he Htuise of Commons of Canada. The petitioner lunv hecame a candidate liefore the Act in (juestiou was passed, and the election which Ik- is contesting was hidil Tiiid the respondent was returned as a uiemhrr. hct'iire tht- Act in ([uestion was introduceil. The fair and reasonahle iutr-pretation of the meaning of the Legislattire is, that till' ili'th section refers to candidates for a seat at -^onie future election, not to candidates wlieii the election had taken place, ami when what is to he- doni' in relation tu them is to correct the eri'ors and mistakes then liiade. Tlie propier vii'W to takf, we think', lnokiiig at the statute it.s(df, the Interpretation Act, and the general rules :ip{ilieahle to the construction of statutes, is tliat the hri;i.sl;iture ilid not intend to atfect the ri^'hts of ]>ai'ti<-> m pending proceedings, Imt that the}' should he h of the jietitionin connection with lirihery, if the treating wei'e to sudi an extent as to amount to hrihery, and the undue influence \va.> of a character to affect the whole election without / ?! 1; (iOO n<»MIN'l<»N ELECTIONS. [a.d. rrrcn-iii!^^ to any statutory inovisions, it wouM, liv tlic law of Piirliaiiu'iit, I a|)])i'rlicii(l, iiiHin-iico tin.' I'csiilt. Tlir tii-st })riiici.i)li' of I'urliniiiLMitary law, us a[i])licalilo to flci'tioiis. is that tlii'V must Ik- //vc, aiitl it' ti't-atiiiL, aiiii umluf iiillncnci' were cai'iicd to an rxtcnt to ivii.l.'i- tin- ult'otioii iiiif j'l'if. then the election would \)v m.'vx. The t'ollowinu olisiTvatious ap})ly generally to vi^tcs tlia* may lie intlucnecd liy tivatiiii;', etc. A vote intlueiUM',; l,y treating was liad lict'ore the statute, and is liad iviw. I'ndcr tin' statute it would semi necessary to slmw imt only that the eutiTtaiunieut was emrujitly rceeivrd hv tln' \dter, liuL that it was corruiitly L;'i\en liy the eaiididat'-; hut as jirooi' ot' the i'nrniei' woidd invalidate the xote at couiuion law, it is unnecessary to adil [iroof ol" the lattei'. The *2oi-d section ot the Cori'Upt Practices Act of Is.')! (Imp.), which declai'es the ^'iviiiLi' of entertainnn'iit-^ to voti'i's on the polling- and nomination days to oc illcL;;i|. siiys nothing" as to the ellect upon the Notes oiNcn. \-\\v this, thert'fore, resort must lie a^'ain hail to the euimiKni law of Parliament ; and the i|Uestion will he, as licivin- fore. whether the \ote was iniiue)iced hy till.' ri'>uh of till' entertainment or not. A vote unduly iiillueiieeil is a l^ail xote hy i\\r {•iniimnii law of Parliament: iJoLicrs on I'^leetioiis, lOtli I'Vi.. p. •">-"l('. it is xei'v rinoari'as.'-iiiL;' to earrv "Ut the Dominioe t'oii- tro\erted I'llectioii Act oi' 1 n7-», owiiiL:" to the fact tliit wc lia\"e no("on-upt Practice^ Pi-e\'entiou Act applic.Me tti Dominion elect ions, wliicli contains all of the j)re\i^inii> of till' Imperial .\et of Xl \. IS \'ie., cap. 102, and tlmt the dominion Act of 1 S7- ' omits the d.'hd and l-4th mc- tioir, which are contained in the Parlia'uentai'V l']lcctieii> Act of iMiN, Imp. Stat. •■>! .v .''2 Vic, caii. 12.'), fruia which the Dominion Act was undoulitedly framed. Tlir-r sections, with some in the Corrupt Practices Act, liavr a \v\y importiint iK'arim;- on the ipiestions which niaycniiu' hefore the llllection Judges. Under the 4ord section (Imp.), wlien it is found hy tlic report of the Judge upon an election petition under the Act ls74.] NolVril VKTolilA. 601 rf fU'( , OI' tln' re[)ort of a Juiln'e on an election ](etition UM'ler the Act, or a report of connuissioiKMs ap[)ointeil I'll! uiiiler cap. .> 7, I") .v: Ki V ic. ell- rmlei- the I'ltli .section (Imp.), any peisdu other than a cniiliilate fouml ,i;uilty of hriheiy in any pi'cjceciling in uliicli, after n(jtice of the charn'e, he hits had an oppor- tunity of lieint;' he;ii'il, shall, iluriu'..;' the iiext seven years al'ler the time hr has so hei'U fiiunil u'uilty, he incapahle 111' luin^- clrcteil ir sitting in i'arliament. ily the oiith section of the Corrupt I'raetiees Prev tion Act of I.s."»4, Imperial Statute, it is enacted: If any cnididate, at any election for any county, city or horoUL;ii, -hall he declareil hy any Election Connuittee u'uilty, hy |iiiii>elf or ;iL;ents, of hriheiy, treating' or undue inllueiice at -lU'h elrction, such candidate shall he incapahle of hein^' elected or >ittin^' in Parliameii'L for >uch ci)unty, city, or in'h. durim^' the Parliament then in existei I Minn ICC le law lieiiin' \n this state m Kni:laud, tlie l arlui- inel itary [flections Act, section '■). declares tl dl lal coi'i U[it practices shall mean luilieiy, irralnie and unitue m- thieuce, or any o\' such olfeiice^ as detined hy Act ol I'arllami'iit, or recou'uized hy the connnon law of Pailia- iiieiit. Jjy the same section of the Dominion < 'oiitioNerted I'^lections Act of h'sTo, it is declared that ''corrupt jiracticos shall iiH'an hrifiery and undue intluence, tieatiuLi'. ]><''"- ' n iiliy^ 1 I Qn-2 JJO.MINIOX ELECTIONS. [A.D. sonation ami other ille_y'al aii[iaiviit tliat the re[)oi't as to C(jrru])t practices is con.sistent with it. aii'l liy it certain results are to follow the report. Thr want of these oniittetl clauses, and of the :^Jth section of tiif Coi-rupt Practices Act, rendei'.> it dillicult to say how I'ai- till' report, as to sections [h) and (r), required of the Judge, will be of tise when returned to the House of Conmions. The Legislature still requires the report t(.) l»e nunle. ami we do not see how we can strike out the clause of the petition complaining of the practices referred to. The bSth sec. of Dominion Elections Act, -W Vic. cap. 27, forbids anv candidate, directly or indirectly, to ennilov any means of corru})tion by giving any sum of inoiiiy, office, place, or employment, gratuity or reward, or any bond, bill or note, or conve^'ance of land, oi' any promise of the .same, nor shall he, either by luniself or his authorizeil agent for that purpose, threaten any elector with losini; Ib74.] NORTH VICTORIA. (j03 li it. ami |hr warn 11 of till- iliow i'av If .1 u*l;j;>-i (U'. aui ■ ul' tl IC (■111 . ov any •oiaisc ot any office, salary, income or advantai^x-, witli intent to cori'upt or l)ribe any elector to vote for such can of hribery, treating or undtie inlluenee, then the Ri'\'i>inL; barrister sliall erase the name of such ]icrS7-i, seem to l)e the only ones which dechiiv the effect on the voter and tlie candidate of the illegal and prohibited acts. In the Act of LSOO, the bribery is delared to be a mis- i]..).)..-' >v. and the mode of recovering the penalty p()inted o;>t : ""s c'tt'ect on the status of the member and the vot I 1, mO'. declared. Wjiilst tin- Controverted Elections Act of 1S73 (letiiics what cc : upt " 'ticcs shall mean, and makes it neccssar}-- for the Judge i.'n''jr certain circumstances, to I'eport wiietlier such practices have been proved to have been committed, and by whom conuiiitted, vet the statute does not declare the eti'ect of such i'eport. We are then left in tliese unprovided cases to the couunon law of Parliament. The bribing of an elector was always punishable at common law, indepemlent of the statute : Rogers on Elec- tions, lOth Ed. •SOS, and Loi'd Mansfield's opinion expre.s,sed in Ilr.r V. Pitt (:} Burr. \:\X^.) In Ri.r v. Viiiiiili'i It (4 Bui'r. ^oOl), Lord ^[an.siield said, •' Wheivyer it is a crime to tnlo- it is a crime to give ; they are reci])rocal. And in many cases, especially in bribery at elections to Parliament, the utti'mpt is a crime ; it is complete on his side who njprs it." It therefore appears to be a crime in the giver as well as the receiver of the bribe, and both may be indicted. In Bushby's Election Law, 4th Ed. Ill, it is stated; "Now one consecpience in Parliament of couunon law briiiery, when committeil by a duly (pialitied and .success- ful camliilate at an election, was to enable the House, and it exclusively, to annul his return, and that though (jniv 1874.] NORTH VICTORIA. (iO.') ii >iii^l(' l)rilio was provoil. All tlio votes so procuri'erson liriiieil loses his vote and the candidate may lose his seat. It may be that this will be the result, because of thf omis- sions in oi;r statute law: but when the evidence in such a case is brought before me, ami 1 am compidled to deciile, 1 would gi\e the([uestion more consideration than I have been able as yet to bestow on it, before holding that the \(ite of the person giving the bribi' would be held g I. In being called on as we now are. without any e\"idence before us, to decide certain (|Uestions wiiieh may atl'ect the (|Ualitication ot voters oi' the standing of camlidates, and which in truth can only a])[ily to a limited lutmber of cases (the law, both in the I)<»miniou anil l'i'o\iuce of Ontario, diti'ering now from the lm[ierial stattlte), the language of Wilies, J., in ,s7r,v,^s' v. Tillrff (L. lb !i of the petition which I'elates to the votes of jx-rsons wlm Were guilty of hrihery, treating, or undue influence. Under the Dominion Statute, MG Vic, cap. 27, sec. 2. the laws in force in the several Provinces of CanaiJa Nova Scotia and New lirunswick, on 1st July, lsii7. I'elative to the ijualitications, etc., of niemhrrs, the votfis at elections (jf sucli niemhers, the oaths to he taken hy voters .... and gcni'rally the proceedings at aiul inci<1ii'. 4i, or otherwise bylaw in'eventeil fi'om voting, if • hily registered or entered on the last revised and certified li-t of vot<*rs according to the provisions of that Act, shall 1h> I'lUitleil to vote at the elections of members to .serve in the Legislative As.sendily, viz.: (L) Every malt,' person hdixj iiftinill ij anil hmxi jiJ,- tin oii-inr, tenant, or occupant of real property of tho value heri'inafter next nientione(l, anuc]i real [)ro])erty of the actual value in cities lA' .^fOO, in towns of S.'JOO, in incorporated villages of .S200, and in townshijis of S2()(), shall l)e entitled to vote at elections of iiii'iiibei's of the Legislative As.sem'oly. As to the fifth paragraph, we think tho petitioner may -how : I. That the voter was not twentv-one vears of age. -. Tliat he was not a subject of Her Majesty by biith "V naturalization. til . M' '■ 1 m ; if"' Ml' ' t 'W7 i 111 ' i ■ ' '- J 1' :'•:. I (ios DoMIN'KtX KLFXTFO.VS. [A... I) h I :>. That 1h' was oth(;rwisc liy law ]ii-i'\('iitc(l tVuni votiii"'. 4. That he was not actually aii'l hnmi /iilr tli^ (iwiin, tenant, or o{!cu])ant of the real jn-operty in ivspcL-t (jf which lie is assessed. \Vf think the roll conclusive as to the amount nf tlic assessment. The fact that thc^ name of a person i> on tin' as.sessnient I'oll or list of voters is not conclusive a-< to his ri^'ht to vote. Jf his name is (jn the list ami he take. th,. oath i('(|uire(l hy the statute, the returnine,' otHcer niJivKf liound to recoi'd liis vote, hut that does not seem cuuchi- sive under the words of the Ontario Act. It is not lieiiin' registered that ^'ives the i[UaliHcation ; Iiut thouij,']i he has the (jualitication in other respects, he cannot vote unless his name is entered on the pro])er list. At one time, in England, thou^'h the name was on the re^'isttn- anil the returniny' otlicei- was hound to ailmit the vote, yet it miu'ht he attacki'd on a scrutiny, and even now tor some causes may still he attacked. Under the view wo take of tlie iiualilication lieiiit; re^'ulated hy the Ontario Act, we do not think wi/ CiUi ])roj)erly pass over or disallow the part of the .^th para- giajih of the petition ohjected to. Then, as to tlie ohjection to the latter part of tlie Sili paraLfrapli, jiayiu'i the travelling expenses of jieisoiis conunu,' and returning from the election. By the Coiiuiit Pi-actices Act of Canada of LSOO, sec. '5, ]iaying tlie ex- penses of voters is an illegal act, and any elector who sliall hire liis horse to any candidate or agent for the ])urpose of conveying electors to and from the ]iolling places, sliall 1)0 dis(|Ualitied from voting at such eli'ction. Section 71 of tile (Ontario Act, .S2 Vic, cap. 21, is similar in effect, and a penalty of SlOO is imposed, hut the latter part pro- vides that any elector who sliall hire a hor.se, etc., /'m/' any candidate ov for any agent of any candidate for tlie pur- ■ pose of conveying any electors to and from the polling place, shall he disqualified from voting at .such election. and unik'i" a penalty of Sl<'(). Coopt'r v. S/adf (<) H. L. 74(J), soenis to be to the effect that merely paying tliu I [A.b. uwiicr, >C'Ct ol' n\ tllr nil tlir > to lli> kfS tllL- iiiaylu' fDiichi- Pt llI'lllM- 1 llf llll^ !• unloss tiiiu'. ill au'l till' '. yi't it tor Miiiie 111 lii'in^ : \vc call th luirii- thc Mil ]iiTSiill> Corrupt the "'X- vlio sliall purpose icrs. shall ctioii 71 n ftli'Ct. lai't jiro- , /"'o/'any the \m-- e polling' election. (() H. L. ivinu' tliu LS74.] xoRTrr vrr'ToiuA. (i()!t exjionses of nn elector, as the law stood in Enoiainl, was not a violation oi the statute, liiit ])roiiiisint;' to pay n.inlit lielieM to lie liriiiery. in tin- present state of tlie law \\'e do not think we can properly excltide iiKpiirinL;' into tln:^e matters.* As to the olijection to the lOth pa]'ae'ra]ili. If the names of persons, whose votes woulil not he le^al in the view alreauli- division, or ward, .shouhl not tleprive a legally ipialitied voter of his vote, though it might justify the deputy re- turning officer in refusing to receive it. But the mere fact that the lists were not correct alpdialjetical lists, in- had not the correct numher of the lot, or their not heing hnwn at tilt! trial that the petitioner had not the neces- sary [)ri»perty (|nalitication, he cannot he seatetl, Imt h- nuiy still show that respondent was not duly elected. Sl'l{.\y which an opposite ci>nclusion is arrivoil at. Section .') of the Act detines the jirojierty i|ualiticati()ii entitliu'j; a person to vote. Then follow otlier section*;, making' pro\ision foi' the ree'istration of voters and the making out I'V mutucipal ollicers of lists of [)el•soIl^ cn- litleil to voti'. Then follows sec. 7, sults(,'C. 1<>, as follows: ■ No jifi'son --hall he ar list (»f \'oters made, cm-titied, auil delivered to tin.' Clerk of thi! Peace at least one month liefore tlie date of the writ to h(»ld such election; and no (pU'stif)n of (lualiiication shall he raised at any .such elec- tion, except to ascertain wliether the ))arty tenderin<,Hii> vote is the same [»arty intended to he desio'nated in the alphalietical list as afon.'said." Sec. 41 pi'uvides foi' an oath Im'Ium' a list; and 1 ai^ree in thinking that the fact whether lie was so jwissessed is a fact necessarily open to ([uestion upon a sL'iutiny. IfA(!ARTY, C.J. C.P., concurred. }'S7.S. Wliere a canvasser for the respoiuh^it reeeivcil money for liiriiii; tcatiis and hired from tiiose incK'hted to iiim, and agre(!d with thi-ni to ;,'ivc them credit for thi^ respeelive aiiioiints to lie paid for the te:iiii>, .sudi an arranj^einent \\ as not (evidence of corrupt practices. Money ^iven to a person to hire ii team and to go round canvassing', liolii on the evidence, not bribery. One lj., a tavern kei^per, was tohl by II., one of r('H]iondeiit's canvas.s(;rs, that ho tiiought L. eonld j^ot •'i^ I S or ij^'iO 'rom 1'., if he would sta\ iit lidiiK! during the election. Ij. expected that t]u: money v.'oulil l)i> .>i|Mtiit at his tavern, and showed that liervations on the iinpro|iriety of Division Court bailifl's eanva.ssini.' voters during; an eliiction. The j)etiti<)ii is set out on j). 'i!S4. The iictitioiici' aii'l I'espoiuk'iit were tlu^ Oiiii(li(hites at the eliH'.tioii. Alter tlu' decision of the l^^lection Court on the pieHiniiiiuv ohjeetionS; the i)etition w;is lirouolit on for trial. T/n' Pii l/ioiicr I II /irrsoii for petitioner. Mi: John JJ. Aniiiiiii\ C^.C, for j-espondent. The ifeneral facts of the case are set out in the ju out chock-books to the polls. It is aliened that he paid .S4 im]U'()perly to one Carmicliael, wlu* was i\Un on the connuittee, tellini,' him lie miifht i-eciuire it ihniiiL;- tlu^ election; that he a[)])lie() (..(utrary to his insti'uctions (vi/., in payinj;' for trams, ; and that instead of payinj.^ money to the pai'ties, he merely irave them credit for the amounts. Mr. Cai'- iiiicliael testitie' for the respondent, they thought it better not to vote, not bo- cause any undue influence in fact was used, but upon tliu expectation that they would receive further favors from the bailiff by adopting that course. I don't hesitate to say that it is a highly improper act for the bailiti" to canvass parties against whom he had an execution ; I will further add, canvassing at all. We all know that persons in the station of life of the McGillivrays, when in pecuniary difficulties, maybe strongly influenced by a bailiff with- out anything being said, except how they are going to vote ; and the Legislature would do well to prohibit can- vassing by Division Court bailiffs. On the whole, I am of opinion that the petitioner has failed to prove that any bribery or any corrupt practice was resorted to by the respondent or his agents. A scrutiny of the votes having taken place, it was fouml that both candidates had an e(j[ual number of voti.^s, ami it was then agreed that the election should be declared void, which was ordered. (9 Commons Journal, l87o, p. l(i.) 1871] NORTH SIMCOE. NORTH SIMCOE. 617 Before the Election Court* ToiiONTO, Sdtli June and 16th Jnltj, 187 /f. Hezekiah Edwards, Petitioner, v. Herman Henry Cook, Respondent. Prfliminnry ohjectionK — Wlifther petitioner dii'iualified hi/ hrihery, ilv. — VaUditji of entry of voter's name on assessment roll. — Champerty. — Fraud. Till' Court will not go behind tiie voters' list to incjuire whether a voter's name was entered upon tlie assessment roll in a formal manner or not. A duly qualified voter is not disqualified from being a petitioner, on the ground that he has been guilty of bribery, treating or undue influence, (luring the election. Disqualifications from corrupt practices on the part of a voter or candi- date arise after he has been found guilty, and there is no relation back. It is not a champertous transaction that an association of persons, with which the petitioner was politically allied, ajzrei'd to pay the costs of the petition. Even if the agreement were chaTipertous, that would not be a suHicient reason to stay the proceedings on the petition. A charge that the petition was not signed by petitioner liona /ide, but that his name was used imda Jide by other persons, is a matter of fact to be tried, and cannot be raised by preliminary objection. Tlie petition contained tlie usual charges of corrupt practices. The respondent filed preliminary oTjjections, submitting: 1. That the petitioner was not duly (paalitied to vote at the said election, whereby he was incapable of being a petitioner. 2. That the petitioner was not actually and bona fide till' owner, tenant or occupant of the real property of the vahie of S-tOO, in respect of which his name was entered on the list of voters used at the said election, a7id was not legally entered on the last revised assessment roll, upon which the said voters' list was founded as .such owner, tenant or occupant, because, as the fact was, one Faraghar was asses.sed in respect of the said real property as tenant, and one Arnall as owiier of the same, at the value of S20(), which was the full value thereof, and the said Faraghar, at the time of the making of the said . ■ * Tliu Judges wero the same as in the Xurth Victoria cam' (ante p. 584). 618 DOMINION ELECTIONS. if fifeil' [a.d. assessment, was in actual possession of the said propo-tv as such tenant, and no appeal was had against the saiil assessment of the said Faraghar, and after the delivery (if the assessment roll to the clerk of the municipalit}- by the assessor, the said Faragher ceased to be, and the peti- tioner became, tenant of the said property at a niontliiy rent of five dollars and iifty cents, and thereupon the suid petitioner appeared before the Court of Revision ft)r the said municipality, and fraudulently procured the name of the said Faraghar to be erased from the said roll and tlu- name of the petitioner to be substituted therefoi-, uml fraudulently procured the value of the said propei'ty to be inserted in the said roll at SGOO, in order to give the petitioner an apparent (qualification to vote, and no notice of the said application of the petitioner was given either to the said Arnall or Faraghar, or any other person, or \>y public notice of any kind, but the said Court of Revision, well knowing the object of the said petitioner in procuring the said alterations in the roll to be made, and fraudu- lently intending to carry out the said object, made the said alterations, without which the petitioner would not have been entitled to vote ; and the respondent submits tliat by reason of the matters aforesaid the said alterations were and are void, and tlie said Court of Revision had no jurisdiction, under the circumstances aforesaid, to make the said alterations, and the petitioner was not entitled to vote at the said election, and was therefore incapable of being a petitioner. 3. That the petitioner was before, during, and after tiie said election, guilty of bribery, treating and undue in- liuence, whereby his status as a voter and a petitioner was annihilated. 4. That before the filing of the petition a champertous bargain was made between the petitioner and certain other persons known as the Liberal-Conservative Association, whereby it was agreed that the costs of the said petition should be paid by the persons known as the Liberal-Cou- 1S74.] NOUTH SIMCOE. 619 st'ivative Association aforesaid, and whereby the name of tljo petitioner should be used. 5. That the petition was not signed by tlie petitioner bona^fide with intent on the part of the petitioner to pro- secute it, but that his name was being used mala^fiile by other persons, wlio were the real petitioners. A summons having been obtained to strike out the pre- liminary objections, Mr. Bethane, ^or respondent, showed cause. He i-ef erred to Regina v. Convt of Revision of Cornwall (25 Q. B. 280) ; WalliHY. Duke of Portland (3 Ves. 494) ; Carrw Tamia- hUl (80 Q. B. 217, 31 O. B. 201); In re National, dr., Asy.ociation (4 DeG. F. & J. 78). Mr. McCarthy, Q.C., for petitionei", referred to Tophnn V. Duke of Portland (32 L. J. Chy. 600) ; Lyme- Reg is cam (1 P. R. & D. 28). Richards, C. J., delivered the judgment of the Court. As to the first preliminary objection, it is a matter of tact, whether the petitioner was duly (lualilled or not, and that of course may be tried. As to the second preliminary objection, w(! fail to see lunv the facts show any actual fraud in relation to placing the petitioner's name on the list of voters. The facts tliemselves seem to show that what was done was what really ought to have been done, and the complaint just amounts to this, that it was not done in the formal manner in which it ought to have been done. Apparently the only fraudulent thing about the matter is the word " fraudulent. " At the time this petitioner had his a.s.sess- incnt raised on thp as.se.ssment roll from two to six hundred dollars, he was paying a rent which would indicate a liug(,'r value of the property than !?()00 ; and there is nothing to show, at the time it was done, that any elec- tion was likely to occur for which a fraudulent change Would be made. We think we .should not go l)ehind the voters' list to imagine fraud from the facts stated in this preliminary objection. ^ f 620 DOMINION ELECTIONS. Wn .mV' iitt [A.D. Then as to the third preliminary oljjection. In tlie North Victoria case, {ante p. 5S4) reference is made to tlie present state of our law on the subject. Some authf)iities seem to show that a party bribing, who is not a candidate is not dis([ualitied from voting in consequence of violating the law in that respect. But if the petitioner was a dnlv qualified voter before and at the time of the election, ami the only ground of disi^ualiHcation is that he was ^fuilty of treating, bribery and undue influence, during the elec- tion, we hardly think that would destroy his right to be a petitioner. Tlie subject is referred to and discussed in the Xortk Victoria, cast', and we are not now prejmred to ducidc against this petitioner on this pi'eliminaiy objection. We are inclined to think if the petitioner is a person who was duly ({ualified to vote at the election to wliich the petition refers, that is sufficient — that the fact that he may have done something at the election which would justify the Judge in striking out his vote, would notcieato such a dis(iualification as to destroy his status as a peti- tioner. It could not by relation be held to make hiia a person not duly qualified to vote at the election. Even in Englanil. with the important clauses in the Corrupt Practices Act of 1854, and the Parliamentary Election Act of 18()(S, referring to this subject, which are omitted in our Acts, it is held that dis(pialifications do not arise until after the time the parties have hirnn found gal If ij oi the bi-ibery. In the Lannccston case (L. K 9 C P. 620), the Court uf Connnon Pleas held that Col. Deakin's disqualification to be elected or sit in the House of Commons existed for the next seven years after he was found guilty. His election was declared void ; but the opposing candidate was nut held to be elected, as would have been the case had the disqualification begun prior to the election which existed after he was found guilty. The same penalty, under the English Act, attaches to any per.son other than the candidate found guilty of Wi r4v 1874.] NORTH SIMCOE. 621 bribery in any procee(lin<,fs in which, after notice of the charge, he has had an opportunity of l)eing heard. The incapacity exists (hiring the seven years next after the time at which he is tVnnid guilty. And the sixth section of the English Act as to corrupt jiiactices, directs the levising barrister, when it is proved licfore him that any person who claims to he ])laced on the list of voters has been covricfed of bribeiy, etc., at an election, or that judgment has been obtained foi- a penal sum recoverable in respect of bribery, etc., against any person wdio claims to bo placed on the list of voters fo^' niiy coinity, he shall expunge his name from the list, if it lie oil the list, 01' disallow his claim to be put on the list. The.se .statutes contemplate the party being found guilty liefore the penalties attach. The decision of Mr. Justice Blackburn in the Bcvdhy case (1 O'M. & H. 17(i) is to the .same eticct a.s the latest ca.se referred to in the Common Pleas. As to the alleged champerty ; if the petitioner could not enforce the alleged Ijargain which the pei'sons known as the Liberal-Con.servative As.sociation made with him a.s to paying costs, that does not establish the fact that this petitioner has not a right to present a ])t.'tition. His right ari.ses from his being an elector, t/i iiiiit I lilt Noremlicr, isy.'f. Hezekiaii Ei)\vAi'.i»."s, I'ltUioiiiw, V. Herman IfEvin Cook, lirspoiuli'iif. Adin'iMion of lirihcry hi/ ivjy iiii ajjfent without the resiiondent's knowli'dn'e oi' consent. At the trial the respondent was examined, and admitted that he had instructeil his attorney to jiive the notice admittiii'r the election was vend. Counsel for the petitioner agreed to accept the admission, and Mr. Justice Gwynne thereupon declared the electi' The respondent had been a candidate for e .on to the Legislature of Ontario in 1^71 (see North Sii '»' cas^. ante p. oO); and also a candidate for election to the Hon of Conuaons in 1872, when he was elected ; and again in 187-1', the election in ijuestion at this trial. During his examination as to this last election, he Avas asked, " What was your expenditure in 1871 ?" 1M74.] KI\(iSTON. 02. ■) Mr. Beth live objected to any evidence except as uHect- \\\\f tlie last election. Mr. Justice (Jwy.nne allowed the ([iicstion. The respondi-nt was then e.xaniined as to his expendi- tures at the Provincia l election of 1871, and tlie l)oiijLUiion elections of ns72 and 1M74, at each of which he had lit^en a candidate. (0 Com 7)i<))is Journal, 1H74, p. 17.) 11! 1:1 i ' if KINGSTON. Befohe Ciiiei' Justice Richauds. Ki.NdSTON-, I7tlt ti> 21M Nonmhn; IS7.i. John Stewart, Prfifioncr, v. Siu John Ai.exandei! MACDONAI.n, licsponth'uf. SitlliKj iisiili- (/crfioii — Dnnkbiij riintom — Miitiniis nl tnnvn.'t — M'l.rid (jpi'niUtura — Corni/if pnirliccM — /' liilii<-~Co'■'( U ' Money hail been contributed by the respondent and by his friends for the purposes of the election, ^vhich had been placed in the hands of one C, a personal and political friend of respon Act of last session. The Imperial statute, 17-18 Vic, cap. 102, the Corrupt Practices Prevention Act of 1854, defines minutely the offences of bribery, treating and undue influence. It states that the following persons shall be deemed guilty of bril)ery, and shall be punished accordingly : mmmmmm f [a.d. ids for of onft ■itliout . ^lr it. iribery. itliDrize )ril)ery, ithorize hilt any eryliody 'vulenoe II raiseil ible m;in r c 'Tupt 3 a p''ual spiiusilile livy as to cts of Ills corrupt January, spoil IrUt >ar in th'- thc \iro- Im.l '1\ i^ so Vjroa lie Corru\)t lintely the Lence. It liiey the report of the Judge that bribery has been conuiiittcil with the kn owledge and co nsent of any candidate at an election, such candiilate shall be deemed to have been2!ii'-_ sonall y guilty of l)ribery at such election, and nis elec- tion, if he has been elected, .shall he void, and he shall lie incapable of being elected to and of sitting in the Honse of Commons during the ^eyen}'ears next, after the date of his being found guilty, and he shall further be in- capable, during the said period of s even years: (1), of being registered as a voter, or voting at any election ; T 1874.] KiNosTox. (i29 (2), of liolding any office under certain Acts of Parlia- ment recited; ('■]), of holdini;' any jinlicial otTice, oi- of licin^' a]i)'ointed a justice of the peace. The Canadian statutes under wliich we are now actino- make the following jirovisions a{)plical)le to these sub- jects. o() Vic, cap. 27, section 1l)nl>ly be of a gi-aver kind, tivd ivuahl not /uive been locallij lintitcd; whei-eas in the actual state of the law he suiters no other jjenalty than the loss of his seat, ami is eligible imnieiliately for any place other than that at which he h.'is been unseated. At page 185 it is stated tiiat formerly, if any candidate was declared Ijy an election connnittee guilty, by hin'self or his agents, of bribery at such election, he not merely lost his seat, but he became incajjable of being elected or sitting in Parliament foi- the same place tluring the then Parliament. And this is still the law wdien he is found guilty, by the report of a Judge upon an election petition, of bribery through his agents without his own knowledge and consent. But if the Judge reports that bribery has been connuitted by or with the knowledge and consent of the candidate as defined above, he is to be deemed pci-- sonally guilty of bribery, and in addition to his election being made void, incapable of sitting in Parliament for seven years, besides incurring other disal)ilities. I come to the conclusion, inasmuch as the penalty im- posed by the statute of bS7;! is not merely that which pertains to the locality, but to the person of the candidate to l)e dis(|ualitied, and applies to all constituencies during that Parliament, that that Act is to be construed as any other penal statute, and the respondent must be proved guilty by the same kind of evidence as appbes to ])enal proceedings. In the Tamworth case (1 O'M. & H. 84) Mr. Justice Willes is reported to have said, first ascertaining upon whom rests the burden of estaldishing the afhrmative, " You ought to judge of a case just as much by evidence which might have been produced if the afftnnative were true, and wdiich has not been produced, as by the evidence which has been laid before the Court. In other words, no amount of evidence ought to induce a judicial tribunal to act upon mere suspicion, or to imagine the existence of evidence which might have been given by the peti- 1.S74.] KIN(;STOX. (i:]5 tionor, but which he has not tliought it to his intciT'st actually to hi-intr forward, and to act upon that evidence, and not upon the evidence which really has been brouj^dit t'oi'wai'd. "The second princi))le, whicli is more particularly aji- plicablc to cii'cumstantial evidence, is this: That thr cir- cumstances to establish tlu; allirmativc of a proposition, where circumstantial evidence is relitid upon, must be all, such of tliem as are believed, circumstances consistent with the alHrnuitive; and that there nnist bt- some ont; or more circumstance believed by tlie tribimal, if you are (|(>aling with a criminal case, inconsistent with any i-ational theory of innoci^nce. and when you ai'e dealinif with a civil case (otherwise expressed, thoui,di pi-obably the )-(.'sult is foi' the most part the same), provint,' the probal)ility of the affirmative to be so nnich stronger than the ne,Lra- tive, that a rational mind would adopt the atKrmative iix preference to tlie ne tiiliutcij .SI, 000, and his tVicnds to his knowlcdn'c a niucli larf,'oi' sum, for tlic ])nrp(jscs of his ch'ction ; and tliat a sum pi'ohahly eiiiii of money ; that Mr. Camphell, as fai' as we know, ^•a\e it to all or any of the committee-men that ap]ilied t'oi' it, who wei'e em])l(>yed in furtherine,' the respondent's election, without any instructiojis from him as to how it was to l)e spent, oi- warnings against an im])roper use of it ; that a u'reat deal of this monev was admittedly siient in coirupt ])Uipcses, some in dii'eet hrihery, and in treat- ing, to the extent of avoiding the election ; ami some of the [larties M'ho made this in'.])ro])ei' use of the money, in giving their evidence, spoke of it in a way which might induce those who lieard them to sU])])ose that they rather took pi'idcMn luiving violateil the law, rather than feeling tliut they had done acts which were culpahle, disi'eputal'le ii< far as they were concerned, and seriously injurious to . tlie candidate to whom they pretended to be friendly. ^^ It cannot l)e denied. Judging from the demeanor ami iiiannei- of irivincf evidence of some of thest; witnesses, that Mr. Campbell was guilty of great carelessness, if not reckless inditi'erence to conse({uences, in ]ilacing the un- \ restricted use of considerable sums ol' money in such i hands as these, and in this res])ect he certaiidy failed to serve the true interests of tlie friend for whom he was actinia, and apparently showed an indifference as to whether the law of the land was violated or not, which i'^ '1 , t, li S I , 1'^ 1 il 040 DOMINroX ELECTIONS. [A.n. certainly is not coirnnendable, to say the least of it, in a ^•(.•ntleiiian in liis position. I sliall refer to tlie Beivdley caxe (1 ( )'.M. ,v 11. IS). There it ap])ears, hoxw the report, that the rfsp()ii.l,.iit hail deposited as iiiuoh as £11,000 in the IihikIs of one Pardoe, dii'ectini,' him in his letters to apply that mon-'V nestly, hut not exercisino-, either personally or hv fuiv no one else, any control over the manner in which tliut money was spent, and not in fact knowinn' I'ow it wa-* spent. The learned Jud^i! hefoi'e whom the case was trieil, Ml'. Justice Biackhui'n, said : " Upon that I can cjaw: to no otliei' conclusion than that the respouesides I cannot in the slightest degree doubt that if a fund is placed in the hanayment of cab hiix', tegether with expenses of committee-men for similar pur- poses, with the other unavoidaVde legitimate expenses, could ab.sorb the sum rai.sed for the purpose of his election. It was suggested that rent of a room, ?10, was an ini- reasonable sum. It was .said a public meeting was held in this room, and that there were 200 people present at it ; tliere would be light and fuel required. I cannot say it struck me that !?10 was a very extoi^tionate charge. The looms that woiild be occupied by committee-men would rei|uire light and fuel ; there would prol)ably be a num- ber of people in the room ; they would not likely be of that class that would nece.s.sarily take much pains to keep the place very tidy; it would proliably I'eipiire cleaning out next day; and if only the charge for the use of the room is to be taken into consideration, S.") a night would not seem to be a large .sum, undei' the circninscaiices, for iui ordinary sized room. No evidence was given as to tli(! number of canvassers that wouhl be reasoiiable, (jr as to their compen.sation or their expenses. I can recall the evidence of a witne.ss in the Eaut Tuivnto case (a.nte p. I'.'^ .•*■■■ 642 DOMINION ELECTIONS. !- f>! fl I 'f),L'( it;i"n h k llf! V "i i itM. [a.d. 70), tried before mo. 1 think ho wao an honest man. H<' took a list of voter.s in a certain locality witli a view of canvas.sing them ; he wanted no pay for his time ; ho went at nii^ht and he mot the voter.s fro({Uontly at taverns, and a.s was the custom amongst people of his class when thev mot to talk over matters, if they mot in a tavern oiiV would call for a drink, then the other would in his turn do .so ; and so, with no intent to bribe whatever, ho found in this way that ho was fro(iU('7itly out of pocket h'm-.i half a dollar to a dollar, and, if I mistake not, on soi,.,. nights as unich as two dollars for this kiml of exnciidi- ture. Ho had no wi.sh to charge for his own serviees, hiu he could not v .ord to be out of pocket in this wav. Now if a similar ])ractico prevailed at the election heic, 1 can iindoi'stand how a can whatever to prevent improper expenditure, and it might, therefore, be inferroil from his conduct that he thought it be.st not to take a diHronuit course for fear that it miii'iit have prejudiced tlie respondent's chance of success in the ' contest. 1 mu.st confess I have been \'ery nuich (MubaiTassed iu coming to a conclusion in this matter satisfactoi'v t ■ ; myself. If it was not that I felt compelled to look upnti this bi'anch of the case in the nature of a j)enal ])roce(d- ing ro(iuiring that the petitioner .should prove his allega- \ tions athrmativoly by satisfactory evidence, and that he '» D. Ic of itlt one \1VT1 und 'inli- J.ut Now I can It llu' close M Ik. siiiue bscucu point ike n\> KS74.] KIXfiSToX. 043 1)11 Mr. \ )t ])er- \ as t'ai' , steps niiii'lit, \i;4ht it ini;j;lit / ; in the -^ .sso«l in ,ory ' m>on |)l'()Cet il- allf-iv- that hi' «-v niiL,'lit liavc y his agents, and that lie is entitled to full costs, and that the I'espondent is not en- titled to any costs for ohtaining his amended particulars. 1 shall, in accordance with Mr. Betiiune's re(|uest, ii'pori that the respondent, l»y his agents, has been gi'.ilty of hiihery, but that they weie not his authorized agents for that purpose, and that no corru])t pr:v.!tices ha\e been proven to have been committed liy or .vith the knowledge (ir consent of the respojident. Fi'om my present view of the law, I do not think that such finding can ati'ect the status of the respondent as a candidate at any future I'li'ciion mider the statute, but T so make my i'ep(jrt that tlie jietitionei" may ii'i\'e whalevei' benefits fi'om it he thinks it will entitle him to. I will certify that the wit- iiev-t'-, made full and true answers to my satisfaction. (n CuiiuHdiis .lull rndl, I NT"), p. ll>.) 42 644. ' fa h in /| DOMINION ELECTIONS, CARDWELL. [A.D. Bef'ore the Election Court.* ToKONTO, AV/( June mul li:th Juhj, IST.'f. Befoke Chief Justice H.ujaf.tv. Toronto, l!)/h Dcnmhrr, IS74. John Hewitt H al., Pt'tltlont'i'!^, v. John Hii.f,v.\i;i» Cameron, Rcspo-ixlnif. Pniimhud-ij ohjirtloiin — Projn'rlii (iiiiiUjicfdhiii of candii/dtc. — N'oii-i-ompH- liner ii'i/h ibiiuDHi for. Hell/, 1. As in the .V-)/-//( I'lrfor'nt cit.si- {(t nt,' ik r>S4), tliiit the Dominion lOlcctioiis Act of IS74 not hcin<_' I'otrospeutive, tiie cjue-ition of |iro nutv fjniililiciition of candidates, ;it elections for inoniber.s of tiie iloua^ (Jf Commons hehl heiore tin; pissing of tlio Dondnion IClection Act of |S7;? can still be raised in pending cases. 2. That it is not necessary for an elector, den\inding the jiroiierty ipialiti- cation of a cmdida'e, to tender the necessary declaration for tl;e can- didate to make ; tlu^ intention of the statute being tliat tlie eandidiue nuist prepare Ins o«n declaration. The petition cliarged tliat tho ivspoiKU'iit liad not the proper (pialitication entitling him to l»e elected a UKMiilicr of the House of Conunons ; that a demand of thf (|ii;ilili- eation of the re.spondent M'as dvily made on the day of nomination, but that the respondent did not then nor at any time afterwards deliver the .same to the i'etuniinrrect description (jf the lands tji' tenements on which he cliiims to be qualified according to law to lie elected, l)y ad ling after the word Canada, "And 1 lurlher declare that the lands or tenements aforesaid consist of," &c. Tills latter part of the declaration nuist umloubtedly be ill writing, and must in the very nature of things ])e pre- pared by the candidate himself. The fact that the declaration may be in the alternative, tliiit he holds lands or tenements held in frc and com- iiinn soccage, or lands or tenements held in lief or in roture, V" ! f- 1874.] CORNWALL (2). fi47 CORNWALL (2). •M].) BKFOHE ChANX'ELLOU Sl'KA(!OE. ToKONTo, iW/t Dec(.'7nh>'r, lS7Jt; ■U-d fihriinrn, JS7.',. Dauhy Bek(;in, Pcfltionrr, v. Alexander V. Mxc- r)ONALl), Respondent. I'ril'iiiuwirji ohjcrl'wni — Tiro rlirHonn — Dw/nali/iratioii of caniliildfr — Ejl'f'rl of ri'/iorf to S/ndker hyihiry at jIrM ilcclion. an to roti-r.i — Eriil'iirr at sfcoie/ trial of An election was held in January, 1S74, under the Act of \^~'^, at which tlu! petitioner and the respondent were candidates, and at which the rchpiindcnt was elected. 'I'liia election was avoided on the grounl of corrupt practices by agents of the respondent, coinnntted without his knowlcilge or consent (initi' p. .~)47). -A new election was held, under the Act of 1874, at which the petitioner and the respondent were aiiaiu candidates, when the respondent was again electeil. Tiiere- upon another petition was presented, charging that the responilent was guilty of corrupt practices at this last election ; that he was ineligilde by reason of the corrupt acts of ins agents at tiie former election; that persons report(;d L'uilty of corrupt pi'acticcs at the former election trial had improperly voted at the last election; and claiming the seat for the petitioner. lilil, on preliminary ol)jfction.s, L Tiiat the two elections were one in law ; and it was not material that they had been held under dillrrent Acts of I'arliament. '1. That the respondent was not ineligible for re-election, as the corrupt practices of his agents at the former election had been committoil with- out his knowledge or consent. 3. That the fact of persons having been reported by the Judge as guilty of corrupt practices at the former election, had not the ett'ect of dis- (|uaUfyini; them from voting at the second election. The '-ejiort of tiie .ludge is not as to them an adjudication, for voters are not, in a ]i-oper judicial sense, ptrtics to the proceedings at an (dcction trial. 4 I'lUt evidence of corrupt practices committed by persons in the interest of both candidates at the pievious election, may be given at the trial of the second petition, with tlic view of striking oil' the votes of any sa di persons who may have voted at the second election. The election lield in January, LS74, liavino- been avoided {iinfe p. .')47), a new election was lieM undei" the Dominion Elections Act, 1S74, at which tlie t'oruier petitioner and thf respondent were aj,'ain candidates, and the respondent was again elected. Thereupon another petition was jire.sented containing tlic usual charges of corrupt pi'actices, and charging that the respondent was ineligible as a f^andidate by rea.son of the corrupt acts of his agents at the former eh'ction: tliat 648 noMINIOX ELECTIOXS, [a.d. '*''di hi it iHi :^i" n persons reported j^niilty of corrupt practices, and jmmsmus guilty l>'it not so reported, had voted at the secoml elec- tion, and that tlieir votes should l)e struck oft' tlie ]ii)l|. The petition claimed the seat for the unsuccessful cai)ili- date. Frcliininaiy objections were filed by the respondent, raising the following' (luestions: 1. Whether the two elec- tions were one in law. 2. Whether the respondent w;is dis(|ualitied. -'i. Whether the votes of persons reported should be struck ott' the poll. Mr. BetliHitic, for petitioner, moved to overruh^ tliese objections. Ml'. Harrison, Q.C, for respondent, supported the (jl»- jcctions. Si'RAriOE, C. — The election now petitioned a^'ainst was held under the Dominion Elections Act of 1874, the re- spondent and Dr. Bergin beinj,^ the candidates. At tlie next preceding election foi' tlie same constituency, which was held under the; Election Act of 187'3, the same gentle- men wei'e candidates, and the present respondent was returned. His return being petitioned against, the ailju- dieation upon the ti'ial of the election petition was, that the respondent was not duly elected or returned, and that the election was void; and that adjudication, or "deter- mination," as it is called in the statute, having been certi- fied to the Speaker, a wi'it for a new election was ordei'cd, and a new election had, with the result that T have stated. Preliminary objections have been taken against portions of the petition against the second election. The 14th paragraph is objected to. It nnis thus: "On the trial of the said former petition a great nund)ei' uf persons were reported l)y the said Judge in his report to the House of Commons as guilty of corru])t practices on behalf of the respondent at the said first election, and a great many persons voted at the saiel last election who were guilty of corrupt practices on behalf of the respond- ""^ -I ■I"" »« ssaa 1874.] rf)nN\vAi,i, (-2). (J49 cut at tlio .saicniit- linj:;' him to be returned upon such new election, liecause the vacancy still remains until it is sup|)lied l)y the I'eiuin of a ([ualitied candidate upon a valid and lawful ekcliou, which ultimately takes |»lace, not under hut accoi'ilin^- to the pi'oper exieency of the lirst writ. In this way the lanu,'nage of the statute is ada[)ted to the case of one rn- tire j)rocessof election, eiidini;" in a sint;ie valid and ivc(»l;'- nized return of a duly (pialitied candidate, so as to su]»ply tho oriainal vacancy;' -.Icr. Jiul. llorxhiiin (I P. R. \: I). 240); )„d Chdb'nhiim {ibid. 224); .>,i,l Lid'orn (W. .^ I>r., 23:3) ; and cases (pioted on pp. 22(), 227. All tho above mentioned corrupt acts, therefore, if taking' jilace at a former election, oj)erate as a dis(pialitication at a subsequent one, provided the first has Ijcen set asiile l»y a competent autliority as null and void." The same view has been taken in other cases of the lt\ual effect of an election being determined l)y a compe- tent tribunal to be void ; and so in the late ca.se of Drnik- %vatet'\.lJt(ikin (L. R. !J C P. 02G), Lord Coleridge speaks of an election after an election determined to be void, m ls7k] (JOItNWALI, (2). n:.! ectioii, inu' to ly the 111' fU- ri'Co^'- mii'iily I. \- 1). (W. v^ All the u iit a h- 1)V a .K s oi the 1' Ur'niL'- speaks l)e void, wliich he siiys is " r('i;iu'(h'il as jiii jiiljoiii iminil only, or CDiitiiinanccM)!' the election so uvoitJiMl. " in another pass- aui' (p. ut 1 di) not I'eel sullicieiitly conlidrnt, in resp(;ct of concludiuf,' that the first and seconil proeecd- inii's are to l)e treated as one proceeilinj^, to lay that down ill |i(jint of law ;" and after i-eferrini;' to the /hi in/ii rrn u ciisr, he explains how in sul)sei(Uent cases a )»erson ilis- ((Ualified tor corrupt practices cannot \n' a candidate for thi' same place at the ne.\t election for the same i)lace (oi-. indeed, at any suKseipient election during' the same Parlia- ment), without resortini;' to the doctrine of an avoide(l election followed by another election heinn' in law <)Mly one election. He explains it l»y the provisions of the Corrupt Practices Prevention Act, IS.')4, s. o(i, " That if any candidate at any election for any county, vVc., shall he declared hy any election connnittee fjjuilty, hy him- self or his aLjents, of l)ril)ery, treatini;', or luidue iidluence at such election, such candidate shall he incapable of lieiiij,' elected or sitting in Parliament for such county," 6cc., duiino' tlie Parliament then in existence. The decision in the ''Kinjarrnu rasi' proceeded upon tile like dis(jualitication created by a pi'evious Act, ') k (J Vic, c. 102, where tlie corrupt practice was " ti'eatin-;'." It was the opinion of Mr. .Justice Willes that under section 36 of the Act of 1S."J4, a petition nught be pre- sented at any time during a Pai'liament at which C(jrrupt practices liad been used, lie places hi.s decision in the Wcsthunj ease (1 O'M. & 11. 47, -"j.'j) i;pon that ground ; and in Stevens: v. TlUrtt lie says (p. 177) : " 1 apprehend that the 36th section is the pivot now of all the-si' i>ro- (■'■edings." It seems to me clear that decisions subseijuent to IS.34 may properly be referred to that .section. ' IMAGE EVALUATION TEST TARGET (MT-3) 1.0 •^MIIIIM lljl^ 12.2 I.I u 1.25 2.0 U 11.6 Photographic Sciences Corporation 23 WEST MAIN STREET WEB:TER, N.Y. 14580 (716) 872-4503 f ..:<\ c /i^ m w- W.r ! 652 DOMINION ELECTIONS. [a.d. It seems clear, also, that, without that section, corrupt practices previous to an effectual election would not work a disqualitication at an election subsequent to it. The same learned judge observes : "As to matters whicli oc- curred at the former election, though bribery at the par- ticular election goes to the disqualihcation of a iuciiiIkt, yet I can iind no authority at common law that liribcry at a former entirely disconnected election would go to the dis(iualitication of a member, and I think it seems to be agreed at the Bar that there was no such authority." If i^ \ o'jld not go to the disqualification of a mLMiihcr, it is haiUiy necessary to say that it would not dis(jualify a voter Wj have no provision in our statutes ecpiivalent to ^loci..; ..' )<; in the Imperial Act of l & G Vic. (which relate to corrupt treating), and therciOre the disqualification of voters contendeil tor by the fourteenth oV)jection must rest entirely upon the doctrine propounded in the Dungdrvdn case. Mr. Harrison, for the respondent in this case, drew a distinction between the case of members and voters — the Diinijamdi cuse and other cases cited by Mr. Bethuno being cases of members ; but the principle of the doctiine obviously applies to the case of voters as much as to that of candidates. If it is the .same election as to the latter, it cannot be otherwi.se as to the former. Mr. Rogers (p. 227) treats it as a moot point with com- mittees, before the passing of the C. P. P. Act, how tar bribery or other corrupt practices under Acts which he enumerates, if taking place at a former election, disi|uali- fied a person from being elected or sitting on a .subsequent one. I apprehend the learned author did not mean to .say that it was a moot point whether a member could he un- seated for coirupt practices at a previous one. That was the case in the Camdfoid Election case (Corb. & Dan. 239), decided as lon-^ ago as LS19. In that case a distinc- tion was taken in argument between corrupt practices hy a candidate and petitioner, and corrupt practices by the candidate returned at a previous election ; and it was w ■■'■ '»" wi'prn 1S74.] CORNWALL (2). 653 said by counsel that in aJl the cases cited the party wlio was unseated, or who was declared to be ineligible, had been himself returned in the first instance, and that the return had been subse(juently set aside by a judgment of a comnii''ee finding that he had been guilty of bribery or treating at such first election. I refer to this argument only to show that it was not denied by counsel for the respondent (and they were counsel of eminence) that cni-rupt practices at a previous election could be shown in order to unseat, at any rate, the candidate returned, in- volving tiie proposition that evidence of corrupt practices at a previous election was admissible, and, if admissible, the Judge who may try the present election petition must receive such evidence. The weight of authority appears to me to be in favor of receiving such evidence, and I cannot therefore allow the objection to the I4th paragraph of the petition. I must, however, dissent from the proposition implied in it, that the votes given at the previous election of persons re- ported to have been guilty of corrupt practices at that election be disallowed. I put it in that .shape becau.se that would be the effect of striking oft' an eiiual number of votes given for the respondent at the previous election. It appears to me to be very clear that no such effect as is contended for is given by the statute, or could in reason be given to the report of the Judge. In the very elaborate judgment of Sir William Bovill^ ill Sfci'cni^ V. Tillctf, the distinction is clearly pointetl out between the judicial determination of the Judge, which lu' certifies to the Speaker, and the report which he is re- (luired to make at the same time. After giving a history of the legislation which preceded the Parliamentary Election Act of 18G(S, from which the Canadian Acts constituting the Judfjes the tribunals for the trial of con- troverted elections are taken, he comments upon those clau.ses of the Act which relate to the determination to be come to by the Judge on the trial, and his certificate of such determination, and to the report to be made under . j i 1 '1' I'l l;i B ! 1 !; 1 B ' ' 'I «' '', A 1 '^ ;,. V B t M' ■ II , ' i* ,■ 054 DOMINION ELECTIONS. [a. I). tlu' Act. I cannot do bettor than (|Uote bis ljini,'n;i"-(' : " Now this Act of Parliament, which i.s really the fmuwla- tion of our jurisdiction, and which declares and must determine what is the effect of reports of the election .hidLfes, nialv(>s a very nuiterial distinction betwcM-n what is final a>id what is not final. For instance, subsection I .'J uf section 1 1 declares that the determination of (lie Election .Iudj;e .sliall l)c final to all intents and j)uri)os.'s. But th;it is the ' deteruiination ' mentioned in that seetion, viz., as to who was duly returned or cdected, or whctlK-r t!ie election was void, that is, by the e> n ess terms of the clause, whicli says that 'at the conclusion of the trial the Judijt' who tried the petition shall avs that the ' tljtermination ' of the petition is to he tinal, contains no such words as to the ' report.' Where efiect is intended to he j^iven tc tlie leport it is expressly enacted what that effect sluUl he, hut tliere is nothin^f in this Act which I have iieen ahle to tliscover that makes the mere ' rejioit ' of the Election Jud^e ecpiivalent to his 'determination.' There is nothinjjf which .says that the re))ort is to he tinal for any pur|)o.se whatever e.\cej)t in the particulai- ea-es that are expressly mentioned ; ami the present is not one of them. If Parliament had intended, not oidy that ihe determination of the question as to the seat was to he tinal, hut that the report was to he final in oilier icspeeis. it Would liave so enacted. But it could hardly liave heen intended that .such a report .sliould he final, looking- at tlic various matters wliich may he included in it, as stated in the different paragraphs of section 11. If the leport SI ■» 6r)() DOMINION ELECTIONS. [A.I,. was not to be Hnal undor the old Acts, it sofins to nw. that we sliould he ^^oiiij.^ a lonj; way, and strait, inif the construction of this Act, to hold that it was to Ik' t\nt\.\ in this case, oi- tlmt the parties were concluded hy it." The .saiiK! distinction was taken between the effect of tin- "ileterniination" l)y the Judtj;e and ins "report," l>v Mr. Justice Willes and Mr. .lustice Iveatint;, who also iray,. jud;.,'niej»t in the same matter. The (|Ut;stion in Sffirns v. Tilblt was as to the »'ir<'ct to lie ifiven to a "n.'poi't" of a Jud^'e in relation to the conduct oi" a candidate at a previous election. In the case i)efore me the rep )i't is in I'elation to corrupt yv.w- tices l>y votei's, and the case is therefore a fnrfinii : for voters are not in a proper judicial sense; partits to th.' j)r(>ecedinLfs at an election tiial, and to ;,'ive the «'rt'<-ct contended foi- to the repoi't concerning' tln-iii would !..• making an adjutlieation afleeting their fianchisf lidiitiil their backs. I apprehend that in ordei' to att'fct tlnm the report wouM have to be laid before the Attorn, v- General with a view to the prosecut' n of the jicrs ms named in the re])ort, as was sugn^esteu oy Sir Win. Dovill (p. l')fS), in relation to indiviiLuals re])orted by an Klictinn Connuittee to have been ,1,'uilty of corrupt practices. My *)pinion, then, upon the I4th objection is that it is not tenable in its present shape; that so nnich of it a.s relates to voters reported to have been guilty at the first election of corrupt practices, and states as a con.se<|Ueiico that an equivalent number should be struck off the num- ber of votes polled for the respondent at the sccoikI election, must be overruled. But further, my opinion is that upon the trial of the petition now presented a^^ainst the secon l.v Mr. «) gave i(i C'tft'Ct II tit till! In i\w |)t |inu'- (>/•/* ; for ■s to tlx' ll.- rtV.'ft AouM l"' ;c licllin'l ft^-ct th'Mll Altoni-y- (> jH-rsins 'ni. liovill , Kli'di^n ic<'>. that it is •h (»f it as lit thf tif-*t tlu- nuu\- the secontl Hial of the .'Ction. t-'vi- the tirst Ln on the It practices Iwill be in petitioner's 1H74.] CORNWALL (2). (J.-.T concerne m1. The secornl objection taken by the respondent is to the Kith paragraph of the petition, aixJ to so inucli of the 17th and IHth parajjfraplis as char;^e that the respondent was ineliL'ibk' to l)e elected bv reason of his former elec- tion havinjjf l)een avoi(hid ; the petition not 'harjfinii; or sliowin*^ an J' other facts or cireunistanees vvluch would ciuist' the respondent to be inelij^ible or . (12.')) Iiefore the Chief Justice ot Ontaiio, and overrulfd by him. At the trial of the tii'st petition I dett;rmiue<] that the eleetion was void by reason of the; corrupt acts of a<;ents; that was my adjudication. I at tin.' same time, in pur- suance of the Act, repoi'teil to the S^pf-aker that no act of eoiiupt practice had been ])rov<'d In-fore me to have Itcen committed by or with the knowledL''* arid consrnt of the respondent. His iut'ligiliility then-fort' must rest ujion my di.'termination that tlu* fii'st election was void by leason of the corrupt acts of agents. A point oceurre be establishe*! in evidence, their votes (or an equal number) will be struck oft on the short ground that the corrupt practice at the tirst election disiiualitied them from voting at the second. If as to these voters there had been an adjudication, an ecjual number of votjs would be struck oft" now. It seems to \^ (>o8 DOMINION KLECTIONS, [a. I). iiic, I coiitV'Ms, to I»e a loji[ical Hocjut'iici' that tlic ('!ui«lii|at<''.s st.'at is t'urt'eitey the corrupt practices of his aLr'-iits. Or it may he put in this way: Suppose no ailjui heat ion a;,'ainst the ciui»li(hite, then camliUate ami voters wuiiM stand upon the same t'ootinj; in rehition to what took phice at the first eh;ction; in fact, <^ivo tocorru|)t practicrs at that election the same ettect as to the iespnii«l('iit, h.- liein^f the can\ an effectual (lection is in law hut one electit)n, prevaiitd hefoi'e the ])assing of the (J. P. P. Act, which was passed in 1N.')4. That Act rendere:(l a canditlate who slwtuld lie found l>y an Election Committee ^niilty of corrupt jirac- tices, by himself or his aj,fents, incapahle of sittiiin' '"'" the same county, city, or horou<^h during the Parliaimnt then in existence. That Act, it 's true, c jusolidatnl as well as amended the law relatini,' to elections, hut tlu' pi-ovision that I have citeil was not, I helieve, eontaiiiril in any previous Act, e::ee[)t that relating to cori'Upt treat- ing, referred to in the DaiKjurran (uine; and while tlniv has been legislation on the subject in the Parliament of the late Province of Canada, and of the Dominion, and of the Leiiislature of Ontaiio, since tlie passing of that Act, no similar provision has found a place in any Act on tlic subject. The carrying out of the doctrine to its full extnit would have the same effect, for if the fii'st election, bcini,' void, is no election, and the adjuction, at any rate during the same Parliament, w iu;j; t"i" iaiin'iit ;lt»'il ilS hilt the )iU;iini''l it tri'iit- liK' tlu'iv lllfUt nl ,]iat Act, k on tlu' ll extrnl 1,11, l.rhiij; the ciiii- Ivtnvu'il, lany sul>- liiiuuMit, 1S74.] CORN WALL (2). is ' 659 aiul so tho camliilate woiiM Kc roinlcrcil inoapalilc of Ix'inj; elected by the operation of tliis doetiine ; while the Legislature has ahstaiiied, while adoptini; scvci-al jd-ovisions of the Imperial Act of I.S.')4, from ailoiitinu' the oiu! to which I have reft-rred ; and in the Dominion Act of 1.S74, under which this secoml election was held, the "puni.shment for corrupt pi-a(!tices " is expi'essly dc- tined, and it is only wluM-f it is proved that there lia> heen any corrupt practice with the actual kn«»wledife and consent of the can, and sulistitutiii!^ other provisions in its stead. Mr. Hethune directed my attention to the Interpreta- tion Act as an answer; ami it a|)peais to me that sul>- sfction .'}.'), and the suhsequeltt suliseetjon, of section 7 aie iin answer to the ohjection. liesides, the Act of \><7-i is not wholly repealed. Klections held, ri>;hts ac(|uired,and lialiilities incurivd l)efore the coming into force of the Act of lS74,are expressly excepted. 1 cainiot a^iee with Mr. Harri.son's contention upon this point, 'i'he point that the respondent was ineli^ihle for re-election u[ioii the l«th section of the Act of l!s7.'i caj). '27, was but little ])ressed ))y Mr. Bethune. I thoULjht certainly that it woulil be a .strained construction teu. Sl.MCDK, J.'fl/t to ..'Hill ./llllf, II lid ofll J nil/, /.s',"'. John Decow, Pctit'iDucr, v. Wili.i.v.m \Vai,l.\(.e, lit'spundciit. Amiiulmi'iit of partinthn-M — Dilui/ -Aijiiinj -^liita — linhi nj — Trmtinij— Cmnliilafi' urtiwi ax uiji iil. On an application l)y the potitiont;!' to amend tlio particulars l>v aililiiiii,' eliarges of bribery against tliu respondent personally, and liis a^'ent-s, liis attorney made allidavit that ditlerent persona iiad l)een einployed to colifct information; that the new partieul.ir.s only came to hi< km w- ledge three day.s i)efore tins application ; and that he uelievetl they were material to the i.ssues joined. //'/'/, tiiat as it was not shown tiiat the petitioner or the persons em- ployed eould not iiave L'i\in thi^ attorney the information long jirior to tile application, and aa it was not sworn tiiat the eiiarge.s were lielie\ fd to be true, nor were they otherwise conlirmed, and as the amendiiieiit might have bei.'n moved for earlier, the application should be refused. The respondent in his evidenee stated that lie objected to coiimiittees ; that he knew certain jiersons were his supporters, and believed they did their best for iiim, init he did not personally know that they aetrd for him. Other cvideiU'O showed that the-se persons took part in the elei'tion on bidialf of the res]iondent : some s])oke for liim atone of his meetings ; and one of them stated that he ami some of the otluTs can- vassed for the respondent, and that he gave the respondent to umler- stand he was taking part in tiie election for him. //' /'/, tiiat as it did not appear that anyone of these persons was authorized by the respondent to represent him, and aa they did not eiaiiu to have any such authority from him, but supported the respondent as the candidate of their party, the said persons were not agents of the re- spondent for the purposes of the election. iSV?/i/)/(', 1. That if a candidate who had appointed no agents was a ware that some of his supporters were systematically working for liim, .nid by any act, or forliearance, eould bo fairly deemed to recognize and adopt their proceedings, he would make them his agents. '^^ 1S74.1 SOn'II NoHKoI.K. 661 I, I tliev wui'^-' •J. Tlmt if ncftiuliildtf in fiood fiiitli utxli'itakes tlif dutiOM which hisanont iiii;;ht uiiiltM'tikko, tlic iii'tH of a few /onloiia politit'iil friunilit in caiivuHH- iii^' for iiiin, iiitriiduciiiL; liim to olrctort). attiinliiiK |»il>li<' ln(H'till^s mill nilviicatiii^' hJH t'Icctioii, ()rl)riimin^ xottTH to tlio jjoU, wciulil not iiiiiUt' .Hucli oniiilidato rcttituiisililc for [irohiluteil actH coiitriiry to liis pulilioly (lucl.'ircil will nml winliea. nml without his kiiowltMltft- and t'diiHont. Mon(\v waH given to cortnin voters to make hets with others on the result of tlir clcetinii, liMt (IS tliiTe was no fvideiue of a previoun iinderntaiid* iii^.' ax to till' votes, Miich Itets weri' not lniliciy. 'i'lie practiee of making lnt.t on nn election eomlenined as like a device to eoniniit lirilicry. Treating' at nn olcetion, in order to ho I'riiiiinnI, must ho done corruptly, ami for the purpose of eorruptly iiitluenein^ the voter. Remarks on the evidence of a^'cney. At till' ^'eiit-ral t-lcction licM on tin- 2'2ivl and 2!>th .lannarv, 1(S74, John Stuart was olt'ctfil for this constitn- cncy, hut on a petition aUc^in;^' corrupt practices hy his an'cnts, the election was avoitjeil (!) ('(iinintnn* Jonnuil, 187.', p. Hi). A new election was hehl on the Kith Ihceiuher, ls7+, at which the i-espondejit was elected. A petition was then presented a,i,'ainst the return of th»i respondent, containino- the usual charii'es ol' corrupt prac- tices, Mr. ('. J. Fill J,',- nn,l Mr. H. S. Ifdl for petitioner. Ml'. Tistlii/r,{).C., iiiul Mr. Riihh, foi- resjiondent. At the close of the second days evidence (25th June), the petitioner's counsel applied for an older to Hh' addi- tional particulais, upon an atlida\it of the attorney on the record, sworn that day, stating- that he had used duo diligence in prepariui;- the iiartieulai-s under the oi'th'r of Court, dated :ird April, ls7'); that for the pui-pose of preparing such pai'ticulars ditlrrent parties lunl heen eiii- ployed to collect information ; that the new particulars (which were annexed to the atlidavit) only came to the iUtorney'.s knowledge since Tuesday, the '2J.u<\ dune inst., and that the cases nientionf(l were, lu- helieveil, material to the issues joined. The cases were: charges of hrihery fiL:ainst the respondent personally and his agents. On the f'lllowing morning the for ve- two or kpoko to ■ft- Jtiiiiis ir. Sfi'V'iiif : I know Haiiiini>u at respoii lent s liieetill^ at port Dover. ! tliink 1 asked tliiee persons to vote for liiin. lliihrrt It. lii'nl : I had a list of voters. I attend 'zias Ansley, Dr. N. ( ). Walker, and i-Mwaid Hammond and Tisdale were my su))portcrs. I was plea.sed to have tliem all vote for me. I l>elieve thcv all law ; he put in papers conlaininj^f addresses, to wliich his name was attachfil, with a view of showin<^ that lie (lepenuade. The persons who were represented, on the part of the petitioner, to have acted as agents for the respondent were F^dward Ham- mond, Dav^d Sharp, O/Jas Ansley, and Dr. N. O. Walker. They are all generally charged with having canvassed for the respondent, with having taken ]iart in the election on his hehalf, and having worke; between a witness named flyers and Mr. Anslev, in whicli I hud the folhnving facts : On the polling day, and soon after one Frederick Myers had voted, Ansley handed him a S."> bill to go and bet on Wallace. There was not the slightest evidence of any previous understanding between them ; but Myers took the money, and betted it with Joseph Bell, that Wallace would be e'ected. The two sums were put into the hamls of a third party to abiile the event. Bell raised objections to its being paid over, and it was held until May last, when Myers got it and paid it all to Ansley. When giving the So to Myers, Ansley .said if Myers lost the bet it would cost him nothing, and if ilyers wanted more money to bet to come to him and get it. One Martin, who said he was present, represented the matter rather diU'erently ; but on the weight of evidence I find the facts as above stated. Some considerable time afterwards Myers got the money from ^p ^"W r [A.D. 1S74.1 SOUTH NORFOLK. 067 r a\>- i )n, on i so as w arkt'il uthor- 1 rpose ; I?' liav.' *■■ jors of II spnnil- H idMatc ■ rulings- 1 ition or ■ 1) have ■ ir^'ai'tl 1 U'peml- I il party I the re- ■ lul >ious A\ ne was which 111 .sunn led hiiii not the jetween it with The two to abide aid over, )t it and Myers, jost him to come present, on the 1. Some \ey from the stakeholder, and ])aid the SIO to Ansley, to whom, as I concluded, it rightly helonifed, Myers only _i,'ot the money hack in May last, Viefore the Queen's liirtliday. Martin, aliovo named, also stated that he receive;.') — putting' a l)ill into Krell's haml — go in and vote for Wallace, and bet that Wallace will bo elected, and if ho is not elected you will not lose anything, and if he is elected you can keep the 8-") you win ; all I will ask is the 85 I give you ;" and that Krell to(jk the money, and i^ave it back to Ansley before ho went in to vote. Krell enient for bettini^ was subsecjuent thereto, and that the whole money paid over by the stakeholder was given to Anslcy, in, however, sutBeient to repel the change, thou,L,di it mil}' leave doubt and sus|)icion behind. There is also a matter with which Mr. Hanmionil is connected, which is sufficiently met an to how he kept the account and renderetl a memorauiluiu of it, were somewhat confused, and he faileil in an attenij)! made in Court to explain it. But he said that shoi'tlv before the election he met Hanunond, who toM him lie ought to vote for Wallace, flyers liad at the pi'exious election voted the other way. Hammond had asked liim the amount a week liefore, and on the day bef(jre the polling gave him $.5, and told him he could bet it on tin* election, which he did, and won on the next day. Hum- niond ])aid him the remaining !?18, and he never directly or indirectly returned any part to Hanunond. He liad recently talked with Ansley and with Hammond about his tran.sactions with them. He told Hammond that peojile were writin^^ about his getting money from Ham- mond, who lauii'hed and said, " It was your own monev I paid you." Hammond in his evidence contiinietl Myers' statement, a.id said he was satisfied with the memorandum which Myers gave him. As another j^roof that these four persons were to be deemed agents of the respondent, acts of treating durint refer to the ])ominion Election Act, 1S74, .S7 Vic, cap. !), sec. 94, wliich enacts that every candidate who corruptlv, by himself, or by or with any other pei-son on liis behalf (which includes agents), either 1)efore or during the election, gives or is accessory to giving meat, di'ink, reire.shment, or provision, to any person, for the purpose of corruptly iniluencing such person or any other person to give or refrain from giving his vote, shall be deemed ijiiilty of the ofience of tieating, wliich bv sec. i'^ is declared to be a corrupt practice. The lespondeiit was not more proved guilty of this than of other pers(mal charges ; and, if found guilty, it must be through the acts of his agents. The consecjuence of committing this oH'ence bv a candidate or his atxent, whetiiei' with (U- without the actual knowledge or consent of the candidate, is that his election, if he be elected, .shall be void. It is not, how- ever, the simple act of treating, but the intention with which that act is conuaittetl, which gives it the criminal character, and which subjects the candidate to the loss of the seat. It nuist be done corruptly, and f(jr the ])Ui'po.se of corruptly influencing the voter. 1 have carefully considered the evidence in connection with this language. If the Legislature meant that the act of treating a voter before and during an election constituted the otience, they need not have added the corrupt intent to obtain a corrupt intiuence. Mort- than the act of treating has to be provetl ; and, thei'efore, to stop at a tavern on the way to the poll on a winter's ilay or after a long drive, and to get meat and drink at the II 670 nOMIXIOX ELECTION'S. [a.d. expense of the candidate, is but a part of the casf ; and to it nmst be added sonietliing to establish that the tliin" was done corruptly. And this is not, as appears to me, to be inferred without some evidence of solicitation as to the votini,' connected with the act of treating,'; and this has been generally overlooked. But if the treatin;^' took place in the candidate's absence, as was assumed in the instances proved, the fact of agency must l»e established. I do not pretend to lav down any universal test or rule of deciding, but I cannot think that a candidate must of necessity be pluct-d jn danger of ultimate defeat by the indiscretions of a few of his supporters who will I'isk the use of doubtful, if not illegal, means to obtain a present success. I H*, not see that he may not legally be his own agent for r 1 the purposes of the election, except those covered by the 12 1st section of the Act already referred to. The 7Sth section of that Act recognizes the right of the candi«late in that respect, and, with the exception noted, authorizes him to undertake the duties which an agent appointed by him might have undertaken. If he does so in good faith, I do not think that the acts and exertions of a few zealous political friends in canvassing for him, or even with him, to introduce him to electors to whom he was a stranger, or attending party meetings and advocating his election, or bringing up voters to the poll, can make liim responsible for prohibited acts contrary to his publicly declared will and wishes, and without his knowJed.- :"• well as without his consent. 1 think that the respondent has proved, both h\ acts and his public declarations, made from the time lie tirst annoxmced his candidature, that he meant to be his own agent, and that he had pursued that course, ami that he is not connected with any of the matters com- plained of as done by the persons alleged to be hi> agents ; and that none of the charges advanced against him as the acts of his authorized agents are so substau- m W 1874.] NORTH VICTORIA (2). 071 tiated as to warrant nie in holdin;:^ that liis election and return are voiu. I therefore dismiss the petition with costs. (10 Commons Jou.nwl, 1.S70, p. 20.) NORTH VICTr)KTA (2). Before Mr. Justice Wilson. Lindsay, 'IJtIi to IGth and ..'.i'/i April, ami 4/I1 Ma;/, LS7'>. Hector Cameron, Petitioiwi-, v. James Maclennan, Respondent. Marking ballots — Votes tenilcred hut rfjectf-'l — Parol rof'tiiij — Aiji-wy — Dinners to voters on poUing iJ/ty — CorrujA prartiret. ITic following ballots were held valid : (1) Ballots with a cross to the right just after the candidate's name, but in the same column and not in the column on tlie right han) I'.alli.ts with a cross for each candidate. Qiun-f, whetlier ballots with a cross to the left of tli" candidate".s name should be rejected, as the deputy returning otiicer i.s not liound to reject such ballots under sec. 5.5 of the Dominion Elections .Act, 1S74. The names of certain persons who were qualified to vote at tlie election appeared on the last revised a.ssessment roll of the municipality, but were omitted from the voters' list furnisiied to tiie deputy leturning officer and used at the election. They tendered their votes at the poll, but their votes were not received ; and a majority of them stated to the deputy returning officer that they desired to vote for the petitioner. The petitioner had a majority witliout these votes. Hdd, by the Court of Queen's Bench (affirming WiUou, .1.), no giomid for setting aside the election. ^rrnhh; per Wilson, J., 1. That, though the only mode of voting is by ballot, if it became necessary to decide the election by determining the right to add these votes, it should be determined in that manner most consistent with the old law, and which would have saved the disfran- chisement of electors, and the necessity of a new election. 2. If the right of voting can only be preserved by divulging from neces- sity for whom the elector intended to vote, the necessity justifies the declaration the elector is forced to make, as there is nothing in the Act which prevents the elector from saying for whom he intends to vote. I . 072 DOMINION' ELECTIONS. [a.d. H. All elector duly (|ualifie(l, who has been refuaed a ballot paper by the deputy returning otficer, cainiot he depriv('(l of his vote; otiierwiso it would follow that because the deputy returniii;,' otKeer had wroutrfuilv refu.-e L-ood in fact or in law. One r. , a tavern keeper, took the petitioner's side at the election und at a meeting called by the petitioner, at which he was appoiiitcl chairman. Xotieci of thi.s meeting were sent by the petitioner to 1' to distribute, some of which 1'. put up at his iiouse and some he sent toother places. On polling day I', desired to give a free clinner to some of the petitioner ".s voters, and asked the petitioner if in- migiit do .so. The petitioutT did not appi'ove of it in ease it should interfere with his election, and warned I', that although lie was not his (inti- tioner's) agent, Ik- would rather he sliould not do it. I'., notwith- standing tliis, paid for free dinners to 40 of the petitioner'.s voters. //' /(/, by the Court of (^tueun's Honcli (attirming Wilumi, J. ), 1. That I', wa.s not an agent of the petitioner. -. Tliat the giving of free dinners to a number of electors who had come a long distance in severe winter weatiier, in the absence of evidence tiiat it was done for the purpose of iiitluencing the election eitliei- hy voting or not voting, orthatsucii electors voted, was net a ec'rruptact. The petitioner w,-''. held entitletl to the general coats of the petition, except as to tiie cases of the voters whose names were not on tlie voters' lists, ami as to the scrutiny of ballots. 'riit' f'oi'inor ok'C'tiou havinu; been avoided (nnfi' p. 1112), a iit'w e'k'ction was hold, at which the .same partii-s wimv camlidates. The respondent was declai'eil elected hy a majority oi' three votes. The unsuccessful candidate there- upon tiled a petition containing the usual chari^^es of corrupt practices, and clainiinf,^ tlie seat on a scrutiny of votes. T/ir Petltluiyr in jiersuii and Mr. F. D. Mooir for petitioner. T/ie Ref^pondent in person. At the conclusi{)n of the evidence the petitioner altandone4. Peters furnished dinners at the ])()lling place for 40 elec- tors at his own e.^pense, and the only ([uestion was whether that had been done cornhpfli/. Corrujttly meant '' with the motive or intention of alfecting the election, not necessarily going as far as l)ribery :" Lao nn-slon cast', {■.]() L. T. N. S., .S81). The time, the place, all the circum- stances favored the corrupt motive. Peters admitted tliat many of the electors were sti'angers to him. He was an active partisan, and had t' the very act complained of as an election move. It was in fact counsel taken between them as to a means of ])ro- moting the election. The result of the decisions on the subject of agency is, that an agent is a person exerting himself in the election with the knowledge and approval of the candidate, and the result is that Peters was an agent for whose acts, to the extent of -disciualifying him from taking the seat, the petitioner was responsible. The act of Peters has, however, another very important bearing under section 73 ; a vote nuist be taken from the IH74.] N(»HTII VHTdlUA (2). /.) H C)\VU If r \\c th the MV^ to ini;j;lit on utu'l' jumstances discussion opvit!ty «»!' ^^ It was [ins of pvo- [ons on tlie exertinii ■vs ^vas an living lui»' isible. important II from tUe |iitit,i(jn('r t'nr uvcry one of tlir party who Ljot his dipntT iitM.' of chiU-''(' l»v means of tin' tickft issued hy Peters. This section provides that f)nc vote must he struck off t'cil' every elector provt'(l to have heeii treated. The pl'Oof i-^ clear that the dinnei's were intended foi- voters. The issue of the tickets made every man's all used, and all retui'iied hv -Mr. AnIi'.)}" to Peters. Tlu; con- clusion is that 40 voters (lim.'d IVce. The act is the same as if +0 sums of money instead of 40 tickets had heen distrihuted. It is not necessary to prove in detail that the 40 ticketdiolders actually voted — that is the fair and only inference that can he drawn from the evidence. Tlieie were 4!) Voters here for the petitioner. The tickets Were sutHcient foi- nearly NO per cent, of them. If '.t wei'e a i|Uestion hefore a jury the evidence Mould he clearly sutlicient to warrant the conclusion contended for. 'I'his test was actually applied in the Boston (-(lsc (.'U L. T- N. S. s:U, 2 O'M. i^ H. Kil, L. R. f) C. P. (510). If tlie forty voter.s are taken off, then the resj)ondent is (.'ntitliMl to retain the seat, heing put in a majority of ;'>7, and tlie votes left off the lists are not numerous enouy;h to .iftect the election. Mr. ('(i.rnrroi), Q. C. (the })etitioner), (iitd }[!•. F. Oshr, coiifro. It is not open to the respondent to make u.se of the Hrst point in his ar^'ument. 'J'he fourth clause of the list of ohjections delivered to the petitioner hy i-espondent had set forth that divers persons were I'eady to vote at the said election, and had intended to vote for the respond- ent, hut their names were omitted from the certified copy of the voters" list; ami now when the petitioner had succeedeil in provine- that twelve or thirteen names had heen omitted from the voters' list, that they had ten ; for Maclennan, none. (4.) Those marked with a mere line, vertical, horizontal, or diao-onal ; and whether the line is in the compartmont where the name is, or in the column to the i-i;4ht of it. For Cauun-on, Nos. '), 11, 17, IS, 20, :U ; for MaclcUDim, No. 27. (■..) Those markeil with a cross to the left hand ^^i(le — that is, in front — of the candiilate's name in tlie left colunui. For Cameron, Nos. 12, lo; for Maclennan, No.s. 21, 2.-), 2G, .m (().) Those marked, not with a proper cross, but having some addition to it, as strokes, which make the cross look like an X, or having lines along the top and bottom of tlir cross, or a line across the centre of it, or an additional stroke on one arm of the cross, or the form being some- what like an anchor. For Cameron, Nos. 0,7, I'J: for Maclennan, Nos. 2-'}, 24, 20. (7.) Those marked with a proper cross, but having some additional mark by whicli it was said the voter couM he identified. For Cameron, No. 4 ; for Maclennan, Nos. 2s. 32, 38. (8.) Those having no cross, but the candidate's name being written in full or in part, or some letters or initials put in j)lace of the cross. For Cameron, Nos. 35, 30 ; foi' Maclennan, No. 22. (9.) One which is marked by a number of lines. Fur Cameron, none ; for Maclennan, No. 31. [A.D. LS74.] NORTH VICTORIA (2). 07!) lie divi- licli the ,)f— that SOS. it to the inc. I'oi" : ahiivf i»r Sos. 4, .V. hori/.outah iiipavtinont y\^j^ht n't it. Macleunan, iian^- Init havin;j,- e cross h)i-)K ftl ie »ttoni *) adtlitiona! Iiehijj; soiue- 7. 19 •• for havin (T soi\ie 'V CO lian, uia he xlates name hiitials Ivs or 85, 36 ; iov lines. For (10.) There i.s one, No. 1.5, wliich lias a eros.s for each caniHdate — niakino- a total of 37: accouiitinij for tlie whole niniiber of rejected ballot.s. I held at the trial and I am of the same opinion still, that class No. 1, which is composed of cro.sses to the right hand side of the candidate's name, contains o-ood votes, for, within the very words of the >ratute, they are " on the right hand «ide, opposite the name of the candidate;" and though the}' are in the compartment where the candidate's name is printead. The fourth class, consisting only of each a single straight line, I do not allow, because there is a fair ground of argument that the elector not having com- pleted his cross did not mean to complete it, and pur- posely left his will undetermined. In the Wlgtovn case the single lines were not allowed. If thev were allowed here, there would be added tive to the petitioner's ma- i i;i > is7-i.] NORTH VICTORIA (2). 681 jority; but so long as the majority exists without that kind of l)anot, it is of no great conso(juence. The seventh class is one I have had some difficulty in dealing with. No. 28, in which the voter, besides putting the cross for the respondent, has written the respondent's name in full, is certainly bad ; for by that wi-iting the voter mav be identified, and it is for that cause that the eighth class has V)een disallowed. That will leave still three ballots of the seventh class, one of which, No. 4, is for the petitioner, and Nos. '.^'1 and 38 are for the respondent. As a matter of fact, 1 do not think the marks in addition to the cross which are on these papers were put there by the voter in order that he might be identified. But I cannot .say it may not have been for such a purpose. The marks in addition to the cross should not have been there. I feel it safer to reject all three. If they were added to the poll it would still leave the petitioner a majority of two. So long, therefore, as that majority stands it is not of any serious consequence what is done with these three votes. Classes S, 9, and 10 are rejected for reasons which are sufficiently a])parent. The result of the consideration of this first ([uesticm is that the majority of votes on the pt)ll is in favor of the petitioner. As to the second question, the petitioner contended he was entitled to add to his poll the votes of eighteen per- sons, whose names were stated in a list put in at the trial, liecause their names were on the last revised assessment roll for the nnmicipality in which they respectively resided — that is, upon the original or pro[)er voters' lists — but were omitted from the copies of the lists which were made for the purpose of this election ; and they tendered their votes, which were refused by the deputy returning officers, who also refused to furnish such voters with liallots because their names were not upon the copy of the list which was furnished to them for the purpose of taking the poll. The respondent admitted that thirteen C)S'2 DOMINION- ELECTIONS. [A.D. i; of the eighteen voters were persons wliose names were on the original roll, and were entitled to vote at that election; and as to other two of them, he left them to hi- judged of by the evide'AOO. The evidence shows that they were also entitled to vote. I think the whole eighteen were entitled to vote at the election. Eight of them said to the deputy returning otHcer they desiii-d to vote for the petitioner, and they tendered their voti's Wn- him. Four others made afiidavits of their right to vot(^ and that they wished to vote for tlie pt.'titioner : and they gave their affidavits to the deputy returning otHcer at the poll. The othin- six tendered their votes, but tln'V did not say for whom they offered them. The respondent alleges that two other persons than those named by the petitioner were entitled to vote, and tenderefl their votes, but that their votes were rejected because their names were not on the copy of the roll ; and that they wduM have voted for him. The petitioner admits these two persons were entitled to vote. The ]ietitioner all('L;fi| that all those he ha', New Windmr (K. & O. 103), St'lhru mim', Ljjruc Rif/in (B. & Aust. 499). In the Wo.rrrnfjfon <■<>><,' (1 O'M. i^ H. 42-46), Mi\ Price, for the petitioner, liandcl in a list of the persons whose names lie claim*,-*! should he ade added to the poll." Mr. Quain, " Not if in your Lordsliip's opinion it has been duly tendered." Martin, B., " That is a mere iiuitter of fact for me." As to what should he done to constitute a tender of the vote, the elector must state, at the time he desires to vote, the can, above referred to, shows, however, that knowledge of the way the elector intends to vote may come to the officer in .some way or other, for he is forbidden to communicate that informa- tion to any person. Here, as a fact, there are eight persons who told the officer for whom they desired to vote — that is, for the petitioner; and he got four affidavits from other electors stating for whom they proposed to vote; and there is reason to believe that in the other cases mentioned by Leary, the agent of the petitioner at Eldon Station, No. 4, the votes that the returning officer A. I). t to iu\y ii"i>r- ,L' for to, or idatc ijM'i'ly r cou- n the r that to the e rule of the leputy to him e name to vote furnish y case t, ami les are nil yet, canSpanying th*,' claim to vote, as hy tlie affidavits given to him and the particular agent who wa.s pressing the rece{)tion of the votes, that such jier.son intended and desired to v^ote for a particular can- didate, althougli the name of the canliould have reported the matter fully to the lli)n«-e of C'linmioiis. with my reasons foi- so acting' ami decidiii:;'. It would have lieeri my duty to try tin,' election petition an.! any matter put in issue by it. Tliere is the power to add on or strike otl' votes ^'iveii liy li.dlot, althou'^h the Act does not in terms say so. I am doin^' s(j in tliis very case according' to the hallots, and 1 thiid< J have the power to deal with V(jtes which were duly tendered, as under tin' old law, when a ballot was duly reijuested hy the voter, and was wrongly refused hy the otHcer. It is tiue .secrecy is not preserved in such a case. But if it is nece.ssai'v to i)re.serve the right of voting, and if that can be done only by divulging, from necessity, for whom the elector intended to vote, 1 should say the necessity justi- fied the declaration he was fcjrced to make, and there i.s nothing in the Act which prevents an elector from saying, if he choose to say, for whom lie intends to vote. It is true the only mode of v(jting is liy l)allot, ami that the elector may change his mind up to the moment of put- ting his cross on the paper. But 1 ani dealing with ca.ses in which the electors have been refused the ballot papers and have had their votes rejecteil. And if the i[uestioii is at last reduced to this, whether any person can besaiil to have had a right to vote to a'. Jiom the deputy return- ing olHcer has refu.sed to give a ballot paper, I have no 1M7I.1 Nninil VKTuUIA (2). ♦ if) I hositat.ioM in answci'iii;,' tlmt in tlic uffirnmtivr. Wfif it otlitU'wist' tliiTc woiiM Im' hdciuI of clcctidti l»y tlic ))( '»1(', and it vvouM follow Lliut liccausi" tin- ntlicci- lunl wi-ohlj- I'nily ict'uscil to ;^'ivi' a l»alli»t ))a|)t'r to a j^imhI voter, the voter had not a voto in fact or in law. It is tru(! tliti flection niuv lie avoided if theso rejected V()t(!.s wouM have affected the it-sult of the election ; l»ut that, is no projx'i- remedy to the voter, an hils 1874.] NORTH VKTOIM.V (2). JUS who 'v out' or wt'ii,' not si'iit i'or Vol his :udi, iis a •,in onltr 'ish that isoii no corrnjit •AW was ant ahoiit eh Vonii- lot SUV is ClUSl'lvi'S And the h>in'^' the \i\t rlaiui y of ]>ar- what \n' \c piirlia- 'hoy wi.To )0(1 guith's ,,vhi'ro cor- hcniselvt'S are not co<,Mii/iint of, you uuist l^'ai- these two principal reasons in mind, and then, exercisin*,' what may W uilled common sense, you must see — does tlu' particuhir corrupt act come within tlie rule as an act done hv an a^ent .' It' it does not, then, though the person may have heen canvassing the town, or speaking on one side or th(! other, still we could not say that the candidate should he unseated on that account. Kvery hit ol" canvassing uiid actiny; for a candidate is evidence to show aneo liiupu lit hiiiiseU' ,vith them rom ot- ho )fp irties NY date, "lay iui in n»y judgment to saddle the candidate with any unlawful acts of which the tribunal is satisfied he or his authorized agent is ignorant." In the Wf^sthanj nise {20 L. T. N. S. 24), Willes, J.. said: " If I Hnd a person's name on acominitteo from the beginning, that he attended meetings of it, that he also canvassed, that hi.s canva.ss was recognized, I nuist retjuire considei-able argument to satisfy me that he was not an agent within the meaning of the Act." In the same case (I O'M. A: H. 4r improper means of his agent ; and while taking the benefit of the acts done, repudiate the exercise of those powers which the other as his general agent had used for his benctit, and in his business and interest, although the agent was not authorized to do these specific acts. The public can have no relief in such a case, and it is the public whicli is most concerned, but by the invalidation of everything which has been wrongfully accomplished by such means. The agency which I must determine to exist or not is this : Did the candidate aiithorize the person whose con- duct is impugned to act in his behalf ? Or, did the candidate to some extent put himself in the other's hands, or make common cause with him in the election, and for the purpose of promoting it i And the means by which I must determine it are the evidence wdiich was given before me, tested by the rules and instances so copiously given in the different (ilection reports, and .sufficiently referred to in the cases which I have before mentioned. The person said to have l)een the petitioner's agent is William Peters. It is better I should consider and dispose of this part of the case before determining whether the act charged against Peters was an act done corruptly oi- not, because that matter would possibly require more con- sideration than the one of agency ; and if it should ai))jear there was no agency, it will become unnecessary to consider the nature of the act done by Peters in any way. As to ivm^*m [a.d. t' law i'^ii of other, with- which other Joivt (1 H. Braiix- ouhl Im should iiproper t of the s \vhi if he chose to do so. 1 said I couhl lujt prevent him if he chose to do it ; but I did not want him to do it, as exceptions might be taken to it ; that if done by an agent it was the same as if done by myself; and although he was not my agent, I would rather he would not tlo it. I never spoke to Ash by on the subject nor he to me. 1 did not hear or know of Peters giving dinners on that day, and 1 was at the poll there from abfjut two p.m. till after the poll closed. I was in the polling ruom nearly all the tune. That is all the evidence material on this part of the tiise. Is there upon this statement any evidence of the petitioner having appointed Peters his agent, or of his allowintr or authorizing him to act on his behalf ^ Is there any evidence that the petitioner to .some extent put himself in the hands of Peters for the purpose of the election? I think I mu.st .say that a peru.sal of the evi- dence .shows there is not a particle of evidence to sustain the assertion that Peters was the agent of the petitioner. 700 DOMINION ELECTIONS. [a.d. The fact of presidinfj l)y clianco, as it were, at tlie ptiti- tioner's ineetinj^ at Ashby's, at whicli tlie petitioner was present, and at which Peters was present just as any one of tlie nei<^'lih()rs in that part upon hotli sides was pntscnt, and of his openini,' the meeting by speaking a few words in favor of the petitioner, are circumstances not to ))e wholly disregarded in trying the (piestion of agency or n(j agency, l)ut they are utterly insufficient of themselves to show that the petitioner had tliereby to any extent put himself in the hands of such a person to represent him as a general agent. So also the receiving of some bills by Peters, and his putting some of tliem up for the intended meeting and some of them up in liis own house, and forwarding others for distribution, are of no weight whatever alone to show anything like agency on his part. It was not shown the petitioner knew of the bills being so sent to and in turn sent off l)y Peters, and if he had known it such acts would liave liad force only by what they could add to other matters, but they would have been of no significance whatever of themselves. Nor do they, witli the aiMition of the fact of the chairmanship annt atlih'ossc*! to ino, a.tHUinod hu ilid sav The pelitioiuT phiinly tlisclaimeil liaviiig anything,' of tin: kind done, or r(.'Co<,'nisin<,' it if it wcri" dono. In my (>i)iiii()n tlu' petitioner repudiated all connection with tht; luisiness of the dinners, and Peters perfectly understood he did so, and that he was tloin^' so. While the numerical majority is on tlie side of the petitioner, 1 must consider him to be the person who is rij^iitfully entitled to the seat until tliat ri<^lit is diH])la('ti|, and 1 nmst look upon the charge which is iiiad(! against luin as if it were iix effect made against the sitting mcni- her. In the language of Martin, B., in the Warri nijfDn msc (1 ( )'M. c remlered, and the more or less need there was for the act, must all he con- sidered. Such ([Uestions are difficult to deal with, hicau.st> of the almost inevitahle tendency they have to operate upon the voter, and the difficulty there is in discoveriii;;- tilt! true motive for the candidate's liherality at sudi a time, and the daii<,'er tliere is in p(!rMiittin,s liu'son so of the ai«l were land I'ro- L|)ondent, It part of \(i names \e deputy ,'ote, and election, jart of the le scrutiny 1874. HOUTfl UKNI'UKW (2). 706 of tlu' ballots, bt'caiiso isuch rcjcctt'd ballots were not tlie fault of cither party, hut of the deputy returning' otlieers. The parties nmst eacli hear his own costs with rt'sptct to these last nientioneil matters.* The petitioner aj^pealed to the Court of Queen's Px'iu'h, but the Court atHrnied tiu' jud^^nient of Mr. Justice Wilson (a? <,>. B. -2^4). (10 Commons Joantof, 1.S7<), p. 24). SOUTH RKNFIIF<:W (2). Bkfoum Mk. Ji'sTicK Wilson. Rknkkkw, ..'tut Septcmher, 267.7. I William McKay r( al.. PditioiierH, v. John Lohn M('l)oU(iALL, Jicsjxnideiif. De/i'dire Nomination Ptiprrn — lifturnlnij (.tffinr — Co-<(k. The nomination paper of 1?., one of tlie candidates at the election coni- plivined of, was »ignud by twenty-tive pi r (inn, and li;i, have aliected the result of the election. Scmhlc, that the returning otiicer is both a ministerial and a judicial officer ; and that he might decline to receive tlie nomination of persons disciualified by .ifatuyi or otlice, and also nominatior papers signed by uiKpialified persons if he had good reasons for so doing. The returning otHcer having acted honestly and fairly in rejecting the nomination paper, each party to the petition was left to bear his own costs. The fornirr election for this constituency havinij; hecn tleclared void (dvte p. '56), a new election was held on 24th October, 1874, at which Mr. William Bannerman and the respondent were candidates. The i-eturning * Stc the cast' as to the revision of coats, .SO l^. B. 147. 706 DOMINION ELECTIONS. [A.D. officer rejected Mr. Bannerinan's nomination paper on the facts set out below, and returned thi; respondent as member elect. The petition was thereupon liled to set a.side the election. Mr. Cockhurn, Q.C., for petitioner. Mr. Bethwne for respondent. The evidence showed that on the day of noiniiiation the nomination papers of William Bannerman and of the respondent were delivered to the returnino' officer. The election clerk, on examining them, found that Banner- man's nomination paper had twenty-five names thereon, but that one of the twenty-five was not on the voters' lists. The returning officer then took legal advice, and on comparing the names with the official copies of the voters' lists, found that William Tierney, one of Bannerman's nominators, was not qualified as a voter. Bannisrinan's nomination paper had been duly sworn to by one Muir accor ling to the statute. Some negotiations then took place between the respective candidates and the return- ing officer to allow the nomination papers to be amended, although the hour for closing the nominations had passed, but the friends of the respondent would not consent, and thereupon the returning officer, acting under legal advice, rejected the defective nomination paper, and returned the respondent as member elect. The other facts appear in the judgment. Wilson, J. — The petitioners complain of the rejection of Mr. Bannerman's nomination paper. It is not said that Tierney's name was then upon the list, nor is it contended so now ; and it appeal's he was not on the assessment roll for 187'^, in respect of real property, but it is said there were the names of twenty-five persons on the nomination paper as, and purporting to be, the names of actual bond fide electors of the South Riding, and twenty-four of them are so in fact, and the twenty-tirth was honestly believed to l)e so too. That it was a Ilii' 1874.] SOUTH RENFREW. 707 ^' I not naiil nor is it )t on tlie. lerty, ^'ut crsons on he namw Un«7. and enty-titth it wit-s a genuine paper and not a sham docuniont, and beinff so, although as a fact William Tierney was not an elector, yet the paper l>erng . think, too, lie can reject a paper siu'tie'l liy twentv-tivc if it were '' )vrectness :m's or not who were 1,S74.] SOUTH HENFKEW. 709 ;i|i)i(!ai'ing on the paper, but found by an examination of it witli the voters' lists — the electors have been pre vented fifiiu voting for and eh'cting- their own representative, \vli('n, in truth, if tlie election had g(jne on, this defect could not in any manner whate\er, acco;ding to the 80th section, have affected the result of the election. The policy of the law certainly is to have no scrutiny, or as little as possible, in such cases, and to give the pcDplo a full \'(»ice in choosing their own representatives. That has not been done here, an ni'il. J 870, p •■)2.) II: I; ili the "h't'ect ras one to hied, to yie by >^>' fact that Mr. M"i'' I form than ntv |l prop .let'ect not 710 DOMINION ELECTIONS. [a.d. NORTH RENFREW. Before Mii. Justice Wilson. Pembkokk, 30th June, 1st and 2nd Jubj, 187'). Before the Court of Queen's Bench. Toronto, 2nd and 23rd December, 1875, Peter White, Petitioner, v. William Murray, Rei^pondent. Cumulative evkleme — Offers and promises affirmed and denied — Costs. A number of separate cliarges of corrupt practices aj^ainst an agent of the respondent, based upon otfers or promises, and not upon any act of such agent, each of which depended upon the oath of a witness to the oli'er or promise, but each one of which such agent directly contni- dieted, or gave a diti'erent color to the language, or a ditl'erent turn to the expressions used, which (piite altered the meaning of the I'onvfr- sations dttailed, or constituted in eHect a complete or substantial denial of the charges attempted to be proved ;igaiust such agent Held, 1. That although in acting on such conHictine: testimony, where tliere was a separate opposing witness in each case to the testimony of the witness supporting the charge, the Kleetiou Judge might be obliged to hold each charge as answered and repelled by the counter evidence, he coulil not give the like efl'ect to the testimonj' of the same witness in each of the cases where the only opposing witness is confronted liy the adverse testimony of a number of witnesses, who, though they do not corroborate one another liy speaking to the same matter, are con- tradicted in each case by the one witness. 2. That the more fretjuentiy a witness is contradicted by others, altliougli each opposing witness contradicts him on a singie point, the nmrc is confidence in such witness affected, uotil, by a number of contradietin;,' witnesses, he may be disbelieved altogether. 3. That acting on the above, and on a consideration whether the story told by the witness in support of the chartie is reasonable or probal)lo in itself, the charges of corrupt practices against the agent of the respondent, set out in the judgment, were proved. The petitioner was held entitled to tlie costs of the charges on wiiich he succeeded, and the respondent to the costs of the cliarges on which the petitioner failed. The election hold on the 29tli January, 1.S74, having been avoided (9 (Joiiwums Journal, 1^75, p. Oy, a new- election was held under the Dominion Elections Act, 1874, at which the respondent was declared elected. A petition was then presented against his return, containing- the usual charges of corrupt practices. Mr. F. Oder and Mr. Thomas Deacon for petitioner. Mr. Maclennan, Q.C., for respondent. ■11" III If 1874.] NORTH RENFREW. 711 ?■•:: The evidences in support of the charges in tlie petition are set out in the judgment. Wilson, J. — At the close of the evidence there was nothing sliown to sustain either the personal cliarges ortho.se alleged to have been counnitted by an agent with the knowledge of the respondent ; and the case rested on the evid'mce given by the witnesses hereinafter named, and the counter statement of Thomas Mui-ray, the brother and general agent of the respondent at tho election in (jucstion. The petitioner's counsel also relied upon the evidence given by other witnesses, not for the purpose of proving any suV>stantive charge in respect of the matter i-elating to them, but for the purpose of giving effect to the cliarges relied upon as connected with the persons before men- tioned, and as showing the general course of conduct pursued by the agent Thomas Murray throughout the election. I shall take up the charges seriatim and dispose of them. And here it may be proper to observe that they are all based upon offers or promises, not upon any act of or thing performed by Thomas Murray, the general agent of the respondent. And while admitting the general cir- cumstances and much of the narative, and in the very woi'ds of each one of the witnesses in his account of tlic particular transactions which he relates, Thomas Murray gives a different color to the langi;age and a different turn to the expressions which were used, which ([uite alter the meaning of the conversations detailed by the witnesses, and so constitute in effect a complete or sulistantial denial of the character of the charges attempted to be proved against him. He also, however^ in man}'- respects directly contradicts the witnesses. If I were to act upon his opposing testimony in all nine cases in like manner as I might probably do if there were a separate opposing witness in each case to the testimony 712 DOMINION ELECTIONS. [A.l, of the witness who sujjports each cliai'j^e for the iK'titioncr, I might t'eol justified, aruJ, all othei- tliint^s b:'in^ H|uai I might he obliged, to treat the case ])rov('d as an-wciv.l and repelh^d l)y the coniitei- evidence. But 1 cainiot give the like effect to tin- testiinouv nf the same witness in each of the nine cases as I sli<)uld.;i> a general rule, he iiMjuired to give if tluire were ailiff'ciint witness in each case, when he, the only opposin.: witmss, is confronted by the adverse testimonv of nine persons who, although they do not corroboiatt/ one anotluT liv speaking to the same matt(;r, agree in this that they liidi and all of them contradict in material matti-rs tlii.s nw^ witness. The contradiction l)y many persons, each speakin-^ uf a separate matter, of a single witness, who testifies as tutlic whole of thesi; transactions, must tiatui'ally shakt; if nut destroy the conlideiice which might be jilac-fl in that witness if he weie opitosccl l)y the testimony of onlv "ik- or two witnesses, speaking either of thi- samt.- oi- of st.-parar. tran.sactions. The word of only one witness can hanlly be held ti> couu- terl)alance the testimony of many witnesses, and lit- be hi-M to ])e alone light or tmthful, and the cloud of witnesses wlio are a!>ainst him be all deemed to be wion an aeconnnn- dation party to the second; the plea of payment to tlif third ; that he was dischai'ged by the plaintiff as to the fourth ; that there was a failure of consi«lei-ation as to the fifth ; and that there was fraud as to the si.xth. And if his single testimony in maintenance of his respective defences were met b}'- a single and different witness to each matter against it, it would be hanl to say that the array of witnesses again.st him on these different m>' ■ 1.^74.] Nol'.TII r.KNKIiKW, 7l:{ iiiattei's WHS ciititlcil to ^^^) uion- cDnsidei'ation tluiii ii" itiily o)u,' (rt-.sudi dt't'eiices won; on trial, und the plaintiffs sole witness was opjKiscfj l,y tin- ethoi', in deciilin^^ upon th*- tvi hecii eonti'adicted l»y five tn- six cn.-dihlr witnesses on so many dirtenmt points, that I'must then Ixdieve anythin;;- which others, however cxtrava^'ant oi' idle, mav say a<4"ainst him. I must. notwithstandin;j: that .-^tate of thinns, Hrst ol" all determine whethei- the story told hy the witness in the tirst instance is reasonahh' or pi-ohaMe in itself, and if it he not, 1 should disi-i'uja)d the story, and so 1 sl'.ould not lie called ui)on t(j wei^di what wa> sai(l against it. If as again.st six dillerent witnesst-s speaking each to a single fact, I believed thr not depend only u})on the strength of nund^ers, nor in some ea.ses does it ,so at all. Ml 714 DOMINION ELECTIONS, [a.d. I Its true basis is character. It is upon the quality of the evidence, and the point is to determine that qualitv. And I shouUl still have to consider the wliole case Ijutli for and against the one witness before I could say whether I ought to believe him or disbelieve him as to the remain- ing three. I submit these general observations at the outset, in order that I may apply them in such a manner as 1 shall liave to deal with the evidence upon each charge as I take it up. ] . The first case is that which rests upon the transaction which took place with Alexander Bell. The facts stated were, that at a previous election, when Thomas Murray was a candidate, William Murray, the present respondent, employed one John Rolnnson to canvass Bell, and to hire him to work at !i?20 a month. Bell voted then for Thomas Murra}', and after the election he went with his clothes to go to work for William Murray, who would not employ him, and he had to hire with some one else at Slo a month, and he lost, as he believed, the difference of $') a month. It appears that Thomas Murray did ask Bell to sign the requisition of the respondent, and, it may l)e, to vote for him also. Bell refused to do oithei- one or the other in very plain terms. He said he had voted for White before, and he would do it again. Bell said that Thomas Murray said to him, " Come with us this time, and I'll make it all right, or try to make it all right ! " He is very positive of it. Thomas Murray denies very strongly having said that or anything like it. He says, " I said to Bell that, apart from elections and politics, we wished to sustain our name as business men, and if I could get Bell and my brother face to face, and if any injustice was done I would have it rectified, and that Bell should not let these matters interfere with politics anyway." Matters standing in that way between the two principal parties, the evidence of John Robinson has to be con- sidered. He says that Thomas Murray said, " If Bell had 1874.] NORTH RENFREW. 715 ' M if with akt! it Lurray like ctions lusiness ,0 face, ctitied, e with been at a loss by his hrothcr previous to election matters, he, Thomas, would make it all right, or try to make it all right ; I rrTirrn by 'previous to election matters, that Tiiomas was referring to business matters." No doubt he was referring to business matters ; but the (juestion is, was he referring to tluun in connection with the election contest then going on, and for the pui-puse of influencing Bell's vote ? Bell said he was ; Thomas Murray said he was not; Robinson is not very clear either way on the above statement. But he also said that Bell said he had lost Slo or .*?18 by the contract not being carried out, and that Thomas answered just as Bell had said, " he. Bell, had better come with us this time, and he, Thomas MuiTay, would make it all right, or try to make it all right!" which latter statement was ex- pressly in connection witb the then election proceeding.s. The weight of evidence is, T think, rather with tlie petitioner than with the respondent ; and if it were the only charge, it might be capable of being viewed some- what ditierently than when it is one of a greatei- number, and all or many of which are supported by the evidence of the persons called to prove them, while they are ex- plained or repelled by Thomas Murray in the like manner in which he has referred to this particular charge. If effect has to l)e given to this chai'ge, it must be felt to be exceedingly hard upon the respondent, for all that took place, even as Bell represents it, had not the slightest effect upon his vote. He refused from the first to support the respondent, and he declared he meant to vote for the petitioner. He declared also that he desired nothing in any form. He never accepted the offer or promise he says was made to him, and he declared at the time he would not and did not do so. If, however, the offer of any valuable consideration is, as it is expressly declared to lie, liribeiy by the 37th Vic, cap. 9, sec. 92, subsec. 1, it is not for the Court or Judge to interfere with the enactment otherwise than to give it effect when the penalty attaches. m 71i»MI.N'I<>N ELECTIONS, [ad. 2. Tln' sfcoml cliaii^c relates to Augustus Molms. ||r saiil 'riiDiiiiis Murray, alxiut two weeks lu'toi'e the pollinM- flay, met him i)i I'eiiilnoke. He said witness hail a yuod vote. He askeil me who 1 was i^'oiny' to \'ot(' t'of ; 1 saiil. nohody ; he said, I liad tr) Note, He asked who i vnted for the last time; I saiiL Mr. Murray. He said, I weiil.] have to vote for him auaiu.- I said, no : I lost time e\t ly year. He said, he would come ui'ood for my time. The promise made to mc; hy Mr. Murray did not imluee nic to H'o to \()te. Thomus Murray, for the defence, .said as to the cliar;;e. "Tasked Mohns for his name on my hi'other's i'ei|uisition. He first de-elined : he did not want to lose his time in H'oin^' to elections. I said, his time would not he lo.st : it was his duty to go. 1 explained to him my lirother was the j)roper man to supjKjrt : he was tlu' (Icnei'uim-iil candidate : and ,L;oini;' to vote would lie a strict. As lie was coming' away he said to nu', ■ 1 1' I don't, call me no <,'entlenian : and 1 would not that for half youi' I'arm.' No one else was [)resent at the conversation. Murray and I tlien went to tlie front |»art of thi' house where Sti)neand Jackson were, and .Murray said to them, ' i thinU Mr. l*ollf)cl<. is all ri^ht," or Mr. I'oUock is uoinu to ifive my lirotlior liis suppoit or vote.' ... It comes to my memory now tliat after I had s;iid to him tliMt 1 would olili,iL;'e him who would ohliL^f me, he said, 'Wait till aftei- the election.' . . . I did not see Mr. Murray after tliat till tlie i'ollowiiij.; day at the polline; place in West- meath. He askeil me then if I was i;■oin^• to vote for his l)rotlier. 1 think I told him 1 was all riylit. I ret'eried that day to oui- former conversation hy saying' ' it was all right." . . After the (deetion I askeil Thomas Murray if he could leiul me a little money, ainl I would pay him iuteivst on it. He said he had no money. He said, ' I think I gave you to umlei'stand I didi not orcouhl not pv(jmiso you UKJuey ou accoinit of voting." He said he Imd hought a lot of cattle, and he luul not niouey to pay for them. 1 said I would give him any inten^st he asked." And he said he was intluenced hy what passerl hotween him and Thomas Muiray hefore the tdection, for "the inipressiou made on my mind hy our con\ersation was that he would ohlige me after the election."" 1 can- not sayl was intluenced h\' what he said the impression made on his mind was. In cros.s-examination he said : ■ He, 'J'homas Murray, asked nie for my vote w Idle Storie and Jackson were hy. I asked him to go ai)art."" He recapitulated his evidence in chief. Thomas Murray's accoxint of the matter was as follows : "I said to Pollock I was going ahout getting names on my brother's reciuisition; that I supposed he knew my lirotlier was a candidate. He said he did not know. He r i: f» I ■i if M !< fl 71M DOMINION KLECTIONS. [a. I). would bo likely to he friendly to those who would he friendly with him ; that he said in presence of tin; other two. I ,said, 1 don't know what you exactly mean. If you mean I .shcjidd hold out any inducements to vou to got your vote, I wish yo'i to understand 1 do not do .so I want to conduct chis election on le^al grounn;aii to tell me Ids troubles and ditliculties. I said, I did not want to hear them. He .said he would like to borrow money. I said, Don't nuMition money; I did not want him to do it. He got e.\cited. I pressed him to support my brothe?', and that he had l)etter give me his name, as Stone and Jackson, and others of his neighbors, had done or \vould MuiTay had alietof S4Ui» on the result of the Willierforco poll, as before stated. Haase and Ro.s.sorski lioth sav that TJiomas Murray mentioned to tlieni that he had a hft of S'oOO on tlie electioJi. Thomas .Munay denies Ipuiii-^ mentioned it to either of theiri. Rossorski says also that Thomas Muriuy tohl liim he hel-l sneh a het. and hi'. Ros.sorski, couhl ^t^'et some of it when he \-oted for the respondent, and Ross.')rski said "That will do." Haase says that Thomas Murray, on the saun.' occasion, s;iid to him, he. .Murray, had such «, bet, and he .said, • 111 give you , ' when he was caih.^d away and did not fini.sh his conversation with him, lait began talking with Ashmore of betting the S.lili) witli Inm. I think Ros.soiskis character is not .so impeacheil by the evidence given against him by tiie Rev. Mr. denkyns that I nnist disbelieve him, considering the evidence in !ii- favoi' given by J^each and Ashmore. 1 think also tliaf the evidence of Haase .shows a sti-()ng pi'obabiliiy of Rossorski's account lieing a true one, for very neaily thf same tlnng was, it may be inferred, being about said to Haase wliich it is .said was .said to Rossorski. Rossorski has shown a vi'vy strong desire lo unst-jit the respondent, and therefore liis conduct and evidence nnist be very carefully considered, foi- lie is plairdy both an advei'se witness and an adverse political partizan. Thomas Murray also appears, with I'espect to the jiar- ticular poll at which Rossoi'ski was a voter, to have had an interest of a pecuniai'y nature of not the most satisfac- tory kind, considering tlie deep personal interest he had in tlie contest on Itehalf of his brother as well as of his party. The bet was that White would not have a greater majority at tliat poll than I '>, while it turned out he hail 20. While the voting was so close in that town.ship, it was the interest of Thomas Murray, with a net of S400 f^' r -f \ i I n M f r'! ^ si' ! 1 ( Hi i il ■T' 1874.] NORTH |{KXI'HE\V '!>! Ill' pilV- Ivf ililil latisi'jic- lii' hail of Itis <4'vi'atci' lie hiul ship, it ){ S4()0 on the result of it, to oxpend soiiif part (if it 1>y tin- acMjui- silion of a few votei's in oi'dii' to yain the uiucli laru'ev part of :t roulaili'n^•. And wlien to tliat aic supera(l(leal»ilities of tlie case aii' v the evidence of Haase. This cliaiLic 1 think, 1 must find to bo .sustaine(l. 6. The sixth charge I'cfers to the dealing With John Schultz. Here again tliei'o is a dii ect contradiciion lietween the two witnesses. The one, Schultz. swears he was to have !^22 for the cow if he N'oteil for the resjiondent; the other. Muri'ay, that the 822 was i;i\-en upun Schult/'s a^iceing to driv(3 the cow hack to Murray's pnstuie if she hroke from it and weiit hack to Scliult/"s placf. It nnist lie adndtted the consideration or inducement was one of a small amount. It is useless tryini;' to reconcile tiie two statements. I should pi'rha])s, as I have already said of the otheicharncs decide this against the petitioner if this were the only charge, hut as it is one of a series of chai'ges, each one of which is suj)ported hy a diii'erent witness, 1 do not know what I can do even in so small, I may say so tri\ial a matter, unless I give effect to the accumulated weight of testimony, when I have no reason whatevc'r to douht the truth of the i'e-pecti\e witnesses wlio maintain these charges, 7. The seventh chai'ge is the one in connection with Andrew Halliday. He said Thomas Muiiiiy askeil him if he might put the witness's name upon his hrother's re(|uisi- tion. The witness said, Yes, if the other pleased, and the witness then .said, Thomas Murray .said that generally they did not forget their fiiend.s. He did not say it would he all ricdit, nor anythinu- of money. 1 do not attach any weight to this chai'ge, even as it is stated, and hesides. Thomas Mui-ray denies it. #?■ r ft \i ".ill 722 DOMINION ELECTIONS. [a.d. 8. The eighth charge relates to the dealing with Jolm Douglas. Here again the story is of the like characU'r against Thomas Murray, an offer or promise made in the like indirect manner as in the other cases, and spoken to by a man and in a manner which caused no suspicion of the truthfulness of the transaction he spoke of. Thomas Murray admits he tried to get Douglas's vote for his brother, and that they did talk aside for some time, and that Douglas did speak of .S-iO or i?50 being due by him to some of White's people, and that he was afraid to act on Murray's side partly in consequence of it. He admits also that he .said 'i^-iO or SoO was not a killing affair anyw'iy, and that by the ballot the way of the votiny would not be known, and that lie did say at the secoml conversation, " Mr. Douglas, you know me well enougli to know that I would not like to see any man injured." He denies any promise or offer made, or inducement held out, or stronger or different language having been used than he has mentioned, but he says he may possibly have said if Douglas voted for his brother, he, Douglas, would not be sorry. Now, Douglas's story, in a few words, is that Thomas Murray said, after a good deal of solicitation on Murray's part for Douglas's vote, and after Douglas had told his wants, position and expectations, " If you vote for my brotlier ;^^ou will not be sorry for it, and I will do the square thing with you;" and that he said so very soon after having said, as Douglas stated, " Hang it, $4-0 is not much." A very little more than Murray has admitted would convert his story into Douglas's account of the trans- action. But as they each stand, there is evidence fioni which an offence may bo infernMl in the one statement but not in the other. And the question is, which of tlie two accounts am I to act upon ? As I have already saibclieving the whole story. And if the stoiy be pro\ed the charge is main- tained, and tlni offence is just as complete as if the inducement, in ])lace of being a small one, had l)een a large one. I consider, as to this charge, that Mr. Foley's evidence has .satisfactorily answered it. There were many other charges attempted to l>e provcnl, 47 11 724 DOMINION ELECTIONS. [A.D. whicli failed ; cand the evidence was very loni:. TIm- easi' must depend upon fliose already I'et'eri'ed to. I am obliged, from tlie conclusion I have conic to, to give effect to the prayer of the petitioner. And 1 slmll certify, also, that no corrupt practice has been eoiiiiuitttd according to the evidence, by or with the knowlcilov and consent of any candidate at the said election; that Thomas Murray, the agent of the respondent, has liciu prove. for and in respect of and towai'ds the si.x. j^crsons ; tjiat 1 have found these chai-ges laid against the respoiKlou have been proved; and that cori'upt practices havr not extensively prevailetl at the said election. The costs of the ])roceedings will follow the result. The petitioncM' will I'eceivc from the respondent the costs of tliose charges on whicli he has succeeded; and lie will ]»ay lo the res])ondent the costs of those charges on wliicji lie has failed. If this election fail, it is only from the strictness. perliaps fi'om tlu! severity and harshness, of the pi'ovisions of the lillection Law. I have no doubt that the (iti'eis an(| promises I have been coinpelhHl judicially to act U]iuii ha \m\\\ btod. that •,t'n'i'>- Lhat I lUilfUt 1.S74.] MOXCK. The jK'titionor ap|)eale(l from tliis jndo'iiu'iit to the Court of Queen's Beiicli ; l>ut the Court hi'ld tliat as tlie learned Judu'e liad found that coi'ru{)t practices hail liceii coniniitted 1)}' an a;4'ent of the !'t's))()nd»'nt, the appeal should li(^ d1^:iiissed. (10 Couinntiis .liHiranl , l.STii, p. 21). MONCK. Befohk Mi{. Vi(K-Ciia\(i:ij,(i|{ Hi. \ki:. ToiioNTo, Sill, 1(1/1/ nil'/ lull Jiuiiiitri/, is;ii. Peteu (!i;ant <■/ n/., PidriuiKrs, v. I.achlix .McCai.mm, lii'sninidciil . Ballott — Si-riifiii;/ — 17 Vic, ru/). ,'', ,«. ..'.s'. .;.;, sn. h'ffrrt n/imi/irf r>/ uf sucli a luitui'e as to disfVaiu'liise, and this distVaiicliiM.. nietit lii'inn" so n-ftici'al, tlic wlioh' niattci' must he set at hii'n'f and a new cleftioii ordei'ed. I am of opinion that, un(UM" this ehiusr, irremilaritiL's of tlie naturi; liei-i; I'elied upon in order to invalidate the election must he substantial and not mcic infoi-maiities ; that the infoiiuality must be of such a nature as that it may reasonably b^ said to ha\'e a tendency to prcjducc a substantial eff(!ct upon the election. 1 do not thiid< the invn'ularities liere complained of in any manner interiVivd with the election beinn' a real one, nor did they in ;uiv manner affect the result, and therefore they cannot be raised as grounds for avoiding it. This view is eonobo- rated by the finding in the IfucLiicij nisc (."Jl L. T. N. S. 72). There Mr. .lustice Grove .says: " An election is not to be up.set foi' an informality or for triviality. It is not to be upset because the clock at one of the polling booths was five minutes too late, oi- becau.se .sonu; of the voting papers were not delivered in a proper manner, or wciv not marked in a proper way. The objection must be something sultstantial, something calculated to affect the result of the election." It must also be ])oine in mind that if the Court lightly interferes with elections t)n account of errors of the officers employed in their conduct, a very large power may thus l)e placed in the hands of the.se men. Th;it which ari.ses from carelessness to-day may be from ii corrupt motive to-morrow, and thus the officer is enalilcd. by some trivial act or omission, to serve some sinister [)ur- pose, and have an election avoided, and at the same time to run but little chance of the fraudulent intent being proved against him. I therefore disallow the objections taken to votes given by means of ballot papers marked with the pen and ink provided in the polling booth, iiml to those given on the ballot papers provided by the returning officei' but not initialed by him. !t at !■ tlu' lil'u'S ; hut it Incf a • rl'fivd in iiiiv \nol ill' •(UToitO- T. N.S. lU is not It is not (» booths voting 1N71.1 MONCK. 72!> Tliei'o wei'c IIhm'c oiln-r |ioiiits iifL^ucil Ix't'in'c nic ; I. What mark snfHcifiitly ('.\|)r('sst!s tlio intention ot' the (.'lector as to his voting- ( i. Whcit.' must tliis mark hi' ])liic('«l i* •"{. What fulditional mark waicants the ii-'n'clion of tlic hullot [ia])('r :* Thf i'oiiuwinu,' portions ni' section 45 and of S('h(!(hde I. deal witli the Hrst two ol" these (|Uestions: '■ 'Die electoi' . . sliall . . . m;irk his liailot pajier, makini;' a cross on the ii^'ht-li!inrodue(.'il. from the end paralhd with the end of the ballot-])aper It need not hv in the compartment in front of the name, but the moment it ceases to be on the right-hand side, then it is no longer in the place which indicates an inten- tion of voting, and therefore nuist be rejected. If it he correct that the form of the mark, such as a line or ciicle vitiates the ballot, I do not think it unrea.sonable to say that the position of the mark may have the same effect. A man who pretends to vote puts a stroke and nothing more, and knows his balh)t ])aper will be rejected; a man who does not want in reality to vote may just as well say, " I will place my mark or cross to the left of the name and thus, tlKJugh ap[)arently voting, vitiate my ballot paper." I think it is safer, in a case where the wording is so plain as here, to refjuire a reasonable compliance with that which it lays down as being the requirements 1 874. ] MONCK, 731 of a lialldt paper which is to l»i' acccptcil, ratlicr than enter into a luinuto cxaniitiatiou of tlie position of rach cross, and endeavor to a.ssiijn some reason in cacli case for that wliicli virtually is an evasion of tlie plain lan<,aia^'e of tlie Act. The third point raised dejiendson the trne construction of section .'>.') and Sche'lule 1. : The returninif officer shall reject all hallot papers "upon which there is any writing; or niai'k liy which tlw voter could he identified."' " If the voter phices any niaik on the Imllot [)apei' or envelope l)y which he can afteiwards be identitieil, his vote will l)e void and will not he count(Ml." The marks foujid on the liallot i)ape)s ai-e : (d) Additions or emhellislmients lo the H<,nire intt-ndeil to represent the cross, and liy which such lij^'ures nii<,dit he distiiiH'uished fi'om other crosses. (h) Marks made inadvertently near the ci'oss, and which have arisen evidently from nnvonsness or awkwardness, fc) Distitict lines oi' lin-ures made in various ])lacesontlie hallot ])aj)er. The Act does not say any mark, or any mark (h^liher- ately made, l)ut a writini:,' or mark hy which the voter could he identitied. 1 think the mark must contain in itself a means of identitication of the voter in ordei' to vitiate tlu^ hallot. There must he somethinj^' in the mark it.self, such as the initials, oi- soiiu' mark known as l:)eing one the voter is in the habit of usinLf. If there he not this restriction, then it will naturally follow that every pecu- liarity about every cross shouM be .scaimed in ordei' to see whether some of the additions were not put there desis^n- edly so as to mark distinctively that particular ballot paper. Any mark in aildition to the cross might thus avoi (>l.jc(-t('(| to on lioth sidrs. 'I'lic jx'titioiK'rliK.I I, :{:>!) vot.- and tliL'ivsj)()ii(|.'iif, I, ;{.'{:{, Iruviii^r ,i nuijoiity dt' fuurvotf for the r('s|M»ii(lriii. Ill CjImIm. !•(>■, \(). I, thriv Wciv four I.Jlllots \\,v Ml, K(l,L;ar ivjrctc.l, wliicli rcjretioii is olij.'ctcfl to. This ationis ji Fiiir t'\;ii)i|)l(' ol" tlic ncetissity oi" ()l)si-rviiii;' wiih cxfirtnt'-s the rules i)r('sc'rilinl hy tlic A('t. The (1.'|hiiv leturniiiLj olHccr lu'rc ((iii|iioyc(l pen and inU. Tlir crosses in tlicsf four (Vises wero distinctly made opposite the name lildj^ar, and in the i)ro|)cr [xisition on the liallot pajier. The voter folded the j)aper down at once, and accurately, wliicli made an iuijiression ojjposite the name McCiilluiu. We have liy this means a cross o|tposite the name lvl,i;ar, an [)reine' iini)ropei'ly rejected, two, and foi- tlu> niisconnt, one; tluis nuikinn' the iuniil»er of votes polled for him thirteei\ hundred and thirty-six. Of the votes allowed hy the rettlVJlin";' ofHcer. I Ihld the following: (■iilshir, iVo. I. — vVn inadvertent jiencil nuirk, allowetl ; a hallot paper iiuidvertt.'utly torn, allowed. Cdtsfor, Ni). ■>'. — One sin^'le stroke disallowed; one cross with a line l.-efore it, allowed. Cd.nhoro', Xo. I. — A hallot paper inadvertently torn, allowetl; an iiiadx'ertent athlitional pencil mark, allowetl ; four marked with pen in place of ])encil, allowed ; two Willi sni^'le Inies ni ])lace ol crosses, (Usallowed ; one nn\ cross hlotted, alhjwed. (Janboi'i/, N(i disall undt o^\'e( I ath one, nt -One cross not to right hand of name, )t a cross — a circle with two lines til erneatli — disallowed ; one with a cross ni the ])roper place and a .second cro.ss era.sed, alloweil. Dannvlllr, No. J. — A single stroke, disallowed; a douhle cross, allowed. Dimnvillc, No. .!. — One single .stroke, and one cro.ss not to the ri^lit hand of the name, disallowed. Gainnboro', No. J. — One cross not to tlie right hand of the name, disallowed ; one with a mark on the cross, allowed; two with sinale .strokes, disallowed: two with '. — -One sinu'le stroke, disallowed. * This (Itvisioii was mil followed in the .Swi(//i Wi'iitirurth cane, anti' p. 53G. Suu ulso tl'u llcriric/i--iipiiii-Tirirti caxf (H o'M. iV JI. lai). mmmm ■afOiM »t«««li»«««i«"*>»«<*"*-'***-*' 1874.] MONCK. 70 do tor 'I'C H'K' lul tl le Wtt'rnjh'ci, No. 1. — Two wiili a cross not to tliu ri^ht hand of the nnino, and an additional niai'k, disallowed. Waivjlcet, No. .\ — Two single strokes and one cross not to the rit^ht liaml of the name, disallowed; one .single stroke, disallowed. Wain^itit't, No. ■)'. — One sino-le stroke, dusallowed ; one witli a second ci'oss, allowed, it not appearing that the mark identities the voter. This disposes of all the ohjections made ; and deducting the votes disallowed Edgar (19) from the votes allowed (l,;-383), would leave the aund)ei' of votes polled foi- him. 1,314 ; and deducting in like manner the votes disallowed McCallum (IS) from the votes allowed him (l.^.'JG), would leave the nund)er of votes polled for him l.-'ilS. This would give liim, as the I'e.sull of the invcstigatioii, a majority of 4 votes, and he is thercifore entitled to letain the seat. T liave therefore to declare that Mr. McCallum has been (hily elected and returned, and I sliall certify that to the Speaker. (10 Cohnnov>< Jonrvnl, 1876, p. 47). (US- re o. |to a uiile 7W DOMIN'KI.V KLEOTIONS. A.i). h H ALTON. BhI'oRK Mh. .JlSTK'K PaTTEI{S()N. Mll.ldN, /I)/// t„ i :ih Xorimhi i\ isr'i. JjKKoliK I'lIK (Jdi-rt ol" Ai>I'i:ai,. ToiioNTi), .'/.-■/ I)icciiihy a n'a wrong, and doini: it witl II knowing that he i.'^ oiii;,' \v hat IS il object A year Itefore the election the res)iondent paid part of the chaige.s ol a lawyer retained by one <). to attend tlie revision of the assessnunt rolls. (). at the time of the election attended one of the respondents meetinL's at wliic:h he stated that his own mind was not made up. but he urged that the respoi'dent ougiitto have the support of the voters, he being a local man ; ami in tiiree or four instances (). askeil :iit. Tile respondent and his fiiends voters to vote for the re.sponde distrust'-d (J., and in no way recognized him as aclmg with them Ihlil, Tiiat ( >. was not an agent of the respondent for the purpcjses of tin Th( .•lectKJll. I' evid.ence ill r-ii|iport '>i ibc olV. r of a present, or .something nice, to tiie wife of a \ oler ti; induce the \oter U) i/'frain from \dting, siiou iii^ that it had referencfi to .a dilr.irent election than the one in (piestioii. T an amendment of tin misse.i. he charjie against ti ILirticiilars was reliisc d. ti le cllar'^e ills le respon.leiit and one !>., of an ollei' of nioiiev to to )(focure an appointment a- .liistice of the Peace li sideration of Ins voting for the respondent, was suppiuti evidence of tlie voter, who showed bitter hostilit\ to I!. a voter m eoii- tli' but tlr 1>V ciiarge was dentei the resiioiulent. And the eviileiiee shiiv. iiiu ffyr'M^T-Jb - ' -j H f s iL' ie - am .f ' MH: i fiit6S»: iii'*» r' * ' ' .- '* ' ' . ii'-(ir for respondent. The exideitce iiUectilie' the eh-etion a])pear,^ in tlie j'ld^- nient. Pati'KHSox, .I.yV.- — 'ilie partieulais in this ease set out ahout one hundred chai'y the levipDndent . or l»y \N"illiam IJariier, his au'eiil, " hy pronn'se of a tii"«'^<'nt. orsoniethin,!.'"nice, " to Christina Jlohins, his wife, after elec- lioii. 7. IJriherv of Allan .McDotiLiall liy tin' I'espoiideni . tj n ■ 1} 78H DOMINION ELKCTIONS. [a.d. " by promise of conimission as Justice of the Peace ; also of money and check for money, and by threat to prevent his procurement of any office." And bribery by William Barlier, the agent of the i-espondent, ' by promise of commission as Justice of the Peace; also of moncw an^l check for money. " I think the petitioners have failed to establisli any of these charges. The evidence in su])port of the Allison case is that of Allison himself, and is to the effect that ho met Ilamsay at a sawing bee ; that Ramsay talked about the elections ill general, and aVtout other pai'ties to wliom lie was to give a day's sawing for the election; on which Alli.son said he wished Ramsay would give him a day's .sawi.ig, and he would vote for the respondent; and Ramsay said it was a l)argain, and lie would do so; and that then Allison, after thinking of the matter for two or tlin'O ininute,s, said he would not take it. Allison is a fai'iiu"-, owning one hundred and fifty acres of land. Raiii.say was called for tlie res])ondent, and so was one Joshua Norrish, wdio had been at the bee. Their account is not in conflict with that given by Alli.s(jn, as far as his state- ment goes ; and their account of what was said i.s, I am sati.sfied, the ti'ue one. The facts were, that on the 19th of January, 187"), the day after the election for the Local House, at which Mr. Barber had been returned, a party of eight neighbors were at a sawing bee at the residence of a Mr. Marks. The eight persons there l)elonge(b some to the Reform party and some to the Conservative. They were joking, "or talking nonsense," as one witness .says, about the Barber election, and Allison said, in what, 1 have no doul)t, was mere good-natured banter, that Ramsay was sawing a day for Marks, an.d W(juld be .sawing a day for Kitchen, another of tin; pai'ty, and a day for (jthei-s, because they voted on his side ; ans, and I will go and saw a day for you." This was not said with reference ^..o the then comim>' election w i^ii„ta 1874.] HALTON. 739 ave no [\v was for av )tht'rs. lyino; oil |>r you." election of the respondent; and it i: impossible to lielieve either that it was said as anytliinLf but a mere joke at the time, or that Allis(ju couM lur/e for a iiujiuent supposecl tliat Ramsay had any idea of inHuenciuLj his vote, or tliat his vote could b(! influenced by the offer of a day's sa\vin«f. Fluellinif lives in Oakville, and works at car{)enter work wli'.'ue.ver he gets a job. His evidence is, that aViout three weeks before the election In; met the I'espondent on the street in Oakville, about one hundred and titty yards from the respondent's ofKce. That the respondent asked him if lu' was going- U) support him, and lie told him he had not made up his mind what t(j do, when the respondent told him he would have a lot of woik to do in tlie spring, and that if Fluelling would vote for him he would give him work to do ; and that Fluelling then said he thought he would vote for him. He said also that he had noc asked for the work, because he has had wo''k to do. The respondent and his foreman, Mr. Conkrite, gave a very 'litiei'ent acc(nnit. Their evidence is, that after Fluelling had been asked by respondent in the street if he would hel[» the respondent in the election, and said that he would see, or that he did not know, the respondent went to his office ; that Fluelling asked the resi)()ndent if he had any work to do ; that respondent, without giving any answer, went into the office and asked Conkrite if he had any work for FluelliuLT, and was answered that he had none that he could then set him at, l)ut that if any turned up he would give him a job : a'ld that the respond- ent expressly left him to deal with the foreman, and made him no promise, telling him he woul f do notliing about work because it was election times. I am satisfied that no such ju'omise or offer was madf in the stivet as Fhielling sweai's to; tliat the parties went into the olfice, and that the matter was talked of there, which Fluelling entirely conceals in his evidence ; and that no promise or offer was made, either by the respoinlent or his foreman ; but that all that was done was tliat the foreman .liil not give any woi-k then, and did not do more than sav that if 48 »fK 740 DOMINION ELECTIONS. [Ah. ! i any turned up lie inio'lit '■•ivc Flucllin:,'' a joli ; and that tliis was nob to induce him to vote or to retrain fi-om votincf. The evidence of tho respondent and Conkrite is entirolv supported by evidence of anotlier kind, wliifli i- itself supported \>y Fhiellinj;'',-, own evidence, viz., that when the respondent leariK^MJ from tlie particuhirs . in the most em))hatie maimer, under sees. !l(i and !)S. In each case I think the same rule of construel ;> .ii must apply, ami that a payment nia.de aft«.-r the eleetioii would not be a coriupt practice, as a wilful violation of sec. i)(i, unless it would be corruptly made within the proper construction of sec. 92. And I am of opinion that the evidence entirely fails to attach this chai'acter to the payment of the $4 by McMillan to Lambert. I aiu further of opinion that I J; '' fffi ' "ii f • I ji > , 1 1 1 f " J 1 m'^ i'- * HI h| ^ 742 DOMINION FM.ECTIONS. [A.D. McMilliin was not the ant tu'^ini.;- that as neither of tlu; eandi(hite.s was a I'onsei'sative, the respondent ou^^dit to have the su)i])ort of tlie Oakville votei's. as lieinj,' a local luiin ; anondent ; while, on the other hajid, it npjiears that the respondent and his friends ilis- tru.stc'd \)y. ()L;(len, and in no way icco^'ui/ed him as actine; with tiieui, tht»nj;'h they wvw. aware, oi- suj)posed, that he was on that occasion supportintr their side rather than the (;[)posite party, with wliom he had acted hefore. Peake swears that he was otl'ei'ed S'H) hy William Cald- well to \()te at lioth elections for the resjiondent and for Mr. I3arl)ei'. or to stay awa\' fioiii the I'lection. The evidence eiven hy Mr. Cald we and hy Di-. Kohinson leaves no room to douht tiiat nothini^'of the kind, which Peake swears to, took place, and that his story is a simple faVirication. In support of tlie lUdiins charn'e, M i\s. Uohins, the wife of Nathan liol)ins, i-'ives evidence that the respondent and Mr. Barber came together to lie)- house, and that there Mr. Bai'her said he would ,ii,i\e hei' a nice piesent if she ^vould i.;'et her hushjind to stay away from the tdec- tion or to \-(»te for Barlier. Nathan Rohins ami his son lioration of Mrs. liohins, and the o-ave evKience u\ eorio Avhole .statement is directly denit.'d l.y Mr. Barlier, whose evidence is sup]ioi-ted hv that of the rt-spondeiit. Theie was no thine- in the demeanor of Mr>;. lloiiins or her mannerof u'ivini'; hei- evidence, eiiher in chief or on cross- examination, to suo-o-est the idea that she was not telling' w hat slie hel levec 1 t o he t lie ll'Utli. was mijiresseil very differently hy hoth the hushand and son. and their evi- dence very niaterially weakened the civdence which, if thev bad not been examined, I should have been inclined to attach to the evidence o f Mrs. Robins. If I had to decide merely on the Avei^' lit of evidence a.s between the If} [m 4l 744 DOMFXKIN KI-RCTIONrt. [a.d. Iii>l)iiis fiuiiily Mini tlic ivspoMilfiit fu'.il Mr. lijiflici, I should lind it ililliciilt, it' not iiiipossildc, t(j say tluit ihc pctitionffs iiiiil satisfied inc that the chari^'c was tnu-. | .should liiid ill TaAor ol' the rcspondciit, as I sec no i^imiukI for atlacliinn' nioit- wri^-ht to the cvidiiu t'Mis. KoIijun tlian to that of Mr. liarltcr. 'i'lic i'\idciicr, however, dot's not in any way su|)])')i-t tlic chari^c ; there is no evidence that Mrs. Rol)ins was «oli('ite(l at all in i'es|iec!, of the election now in (pU'stiou. The evidence of all the three, wife, liusliand and son, is that it was Mr. Harlier's election alone that was spoken of hy Mr. iJarher to Mrs. Rohins: and Viesiih's all tliis, the oiler spoken of was an olli'r of vahiahlo consideration to Mrs. lloKins to induce lier hus- band to I'efrain from votiiin', which is a distiiK.'t otfeiice under section 92 of the statute, and is not the oU'eiiet' chare'ed in the i),irticulars, I was ask"d to allow an amendnieiit of tlie jiarticular.-. in tliis resjiect, hut refused, as the e\'idence' was not such as to estahlish any oHence in respect of the election now in (|Uestion, or to show tliat the ends of justice re(iuir(.'d that the ainendiueiit .should b(! made.* The McDoue'all chari^e comes before me in rather iiii- u.sual circumstances. It apjjears that M(d)ou!j,all was kcepino" out of tlie way to avoid ,si'r\ice of a subpo'iia, anil all the ettbrts made had failed to ivacli him, or to discover wliei't; lie wiis, until a late ])eriod of this trial. An apiilication was made to nie to ]ujstp(jne the trial after the other evidence for the petitioiu.'rs had been eivcii. to afford time to prosecute the seareli, and 1 eranted the a])plication so far as to allow tliis eliare-e to stand until the respondent's evidence on the other charees had been <^iven. At the last moment the petitioners succeeded in pi'oducinn' the witness. The evidence of McDoueall was to the effect that the respondt'ut had called at his house in December, 1N74. and asked foi- hi.s vote, when he told him he had ])roiiiised to vote for his opponent, Mr. Chi.sholm, and that on that occasion McDougall had '' See Jlalluii casf, I'loviiicial Elections, p. 283 antf. u [A.n. rr. 1 1 llif I.-. I r, (loi.'s di' the vlaee, irtt'v •>? ,'|- lius- otV'nt X\\rv un- ^iiU Nvas in, nr to his trial, .rial after |en 'ii (jipont'Ht, Lnll haa 1874.] FFALTON. 745 moiitinncd a ^n-icvjincf whicli hi' had aijainMt Mi-. Hnrhcr, lieoausc ill a n-ci'iit appoint iiiriit of Justices n[' (he pcact' hy the Ontario ( iovcrinni'iit the school section in whieh Mcnoun'aJ! iiveil had lircn overlooked, no one in that section Iiavini;' heeii inchideil in tlie eonnnissioii; and that tlie responih'ut excused Mr. Uarher, and took the Manie on himself, sayiu'^ that, he and others had made up the list of persons to he recoiinneiKh'd for a])pointmeMt in llohinson's hoteh and that list had liecn ^ixcn to Mi\ Uarlier ; that, on Saturday, Kith Jainiary. the respondent, and Mr. Jiarhci' had ealleil together at his house ; that Mr. Barh.-r hail asked for his vote, to which he replied, tiiat Mr. Barhei' must have considerahle hrass in his face to ask a vote from him or anyone else in tlie school section, when lie liad passed over the section in not i,dvino- it a magistrate. That tlien the I'espondent took him inti^ a I'oom, and said that lie wanted his vote and his hoys', sayinj.^ that he understooil that Mr. McI-)oUL;'all liad con- siderahle inlhii'iice in the county, and that he wanted his vote, and wanted to know if he would not make an as- sinninent to him and Mr. Uarher of his rights, and tlu' rie'ht of his family of the county. I uiiilerstood, and was ahout to note the words as " the ri^'ht of his family in the county," V»ut the witness corrected me hy sayini,^ <'/ the county, or ((//•'the county. I am not siii'c which word he intended. The witness continued, that he told the i'e- spondent he could not do wliat he asked ; that the respondent then a,u'ain asked if he could not vote for lim, wlieii Mr. McDoui all sail has he had hefore toldhiui, that he liad promised Ins xote to .Mr. ('hisliolm, and would not hreak his word for lifty t hoiisand ilo||;irs. That )least IS liaiiii 111 Ins after this the respondent i»ut. h pocket, and a[)peared to he producing;- from his pocket a jiiece of jiaper, and said to McDoueall, " I can fetch y ou now. J have one check left, and only one. J will yive vou that for t1ie interest of you and your Ijoys." To which Mr. McDougall replied, " Put up your dainnahle corruption." That the res|)ondent then said that the ^S^_r, ■*Z^_ '- „o. IMAGE EVALUATION TEST TARGET (MT-3) i 1.0 I.I M IIIIM 3„2 II: . . IM 1.8 1.25 1.4 1.6 ^ 6" ► Photographic Sciences Corporation s 4? \ \\ % V 'O V -^ ^^ ■%' 9) ^^ 23 WEST MAIN STREET WEBSTER, NY M580 (716) 872-4503 6"^ ; (/a <' 746 DOMINION ELECTIONS. [a.d. expression, "(lamnablc corruption," was wiekorl ; to which the witness i-eplied that he cotiM prove hy tlie Bihle that anythijiy tliat w.as con-npt was ilainnable, and thiit the respondent said, " Yon can." After tliese statements the witness seemed to think, and said more than once on being pressed, that there was nothinj^ more of Cv)nsc([uence that lie could think of. He said also, that in the room the rtspondent had said that it was not Mr. Uarber's fault about the magistrate mattei- ; that the lieeve had never sent up McDougall's name as a jfrand juior, ami that the list was ma4ly excited, anoniinion note for !>y tlic Do- minion Controvfitrd I'llrct ions Act, ls7+ (^^7 Vic. c. 10, s. s, suli.seos. 4-7). on the jirfSfntation ol" tlic >aid petition, depo.sitfd witli tlic CMnk oi' the Cotn-t, in Li'old coui or in Dominion notes, the sum of Si JKH), oi- any sum, as security tor the respondent's costs, and the other jxTsons in the Act "t'eri'ed to. The i>etitioners moved to si't aside the preliminary oli- jections, and tiled an atlidavit ot" t!ie jietitioners' solicitors, stating' that, when presenting the petition, they had offered a I)ominion note for Sl.OOn to the Rrffistrar of the Court of Chancery, who stated he could not receive it, Imt directed the .solicitors to make payment thiouoh the Accountant of the court, in the same manner as moneys were usually paid into court un hank, to the crcilitof tliis account in the Couit oj'Clijuucrv in Ontario, the sum of one thousand dollars." Mf. jy Alton j]fi(.'iii'tlii/, Q.C., for the res|)ondent. .]//•. (i. D'Arc/j lioidton for jietilioner. f^LAKE, V.C. — This is not an ohjection to the |M'tition. The main (diject sou in the shape of a Dominion note. The Act says, " the Clerk of tlie Court shall >X\\r a receipt fur .such depo.sit, wliich shall V»e evidence ot tin- sufficiency thei-eol." I overiule the ohjoctions, Imt I will not do so witli costs. I.S7.S.] sorrii <»Nr.\i!iii SOITII ON'I'AMIo. Bekoise Mi{. .IrsTK i: (i.\i,T. Daniel McKay, Prlltltnnr, v. FitAN( is Wavland Ci i;n. lirsjuiilili' III . Gifli mill C/itififii 1 — /liilii 1-1/ Ujliis. I'he respondent j^ivc rcitiuii i,'it't.s ainl uliaiitics to ii r'li;,'iipii.s cninmniiity, a ihiiie'li, ;iiul certain locil ass()l•iati(»ll^*, iioiu^ of « hull wimc politicil : the election wa-i never nu-iitioiied llclil, that wliere charitali'c ii(li laiu'e and indisriiniinate gilts as to leave no d()iil)t on any one's mind \,hat tlii' ellect h.ul lieeii to constitute K'-neial hriltery ; and there was noe\idenee of such gifts or expenditure in this case. .sV«i/\ V. to e.'llert auotiier ai'eoiint from the re.s|ioudent, and did so. H. statt^d to I*, that as the respondent was in a good hiiiiior, it would he a good oppoi tiinily t" get the (dl account settleil, and asked I', if he would support the respondent in eas-;)ns. ()n this occasion there was out; Vtetween himself and Mi-. tJihhs, for a pitcher (wortli some i?40 or :?^.";0) to lu' ^iven to the wife of the successful party. The persons voting- paid a small sum of money for each vote ; the res|)oiidt'nt amoni;' others voted foi- himstdf, while othei's voted for Mr. (jJil)l)s, among whom was a person named Dinifle, hereafter mentioned, who cast no less tlian one thou.sand votes for him. The ohject of these ciMitests was to raise monev for tlie societv and 1 confess I can .sei' no impm- priety in what was ilone by tlie respondent. It is to he observed that none of those gifts or e\[)enditui'es were made to any [)olitical association; they were, particulaily as i'esj)ects the Hide Association, to bodies which, in all probability, weie cithij)osed of men of both political parties. The respondent has also sworn that the election was never mentioned or alluded to in the slightest di-gree in I'eference to any of these gifts or charities, and no evidence was called to contradict him. By section 92 of -^7 Vic, diap. !>, every ])erson who, directlv or indirectlv. bv himself. i»r 1)V anv other i»erson (jn his behalf, gives, lends, or agrees to give or lend, oi otters or promises any money or valualile consideration, or promi.ses to })rocure, or to endeavor to procure, any money or valuable considerati(jn to or for any V(jter, or to or for any person on l)ehalf of any voter, or to or for any person in (jrder to induce any voter to vote or refrain from votin account of li ', or corruptly does any act as afcne.said, o such voter having voted or refrained from :iil I' i' voting at any election, shall be deemed guilty of bribery. 7.)4 Ito.MINION ELKCTIONS. [a.d. Tlu' alt()ve t'luictiiicnt scL'ins to |)oiiit to any iiioncv or vuluaMe coMsidt-ration j^'ivcu to any voter, not to tlic conininnity ^'cncrally. In tln' lliixt'nHjH nisf (I O'M. .<: I[. 2I.S;, wlicrt- tin- cliar;^'r was of lavisli ('X|)cn"M. \' H. !>()), which was a diar^'c of coloiahle chai'ity, Mr. Haron Bramwell says: "It is ceitain that the cominii,' election must have heen pivsent to Ins mind when he ,h, and yet had done as he has done in respect to the.se j^ifts, there would have been nothinjf iliej^al in wliat he . 7.". tlu' boroui^li, lia«l lis- ti'il)iitiMl, l>ut instead of tlif coals licin;,' distiiltutt'tl as the rcspoiKJi'iit I'any luul intfiidcd, t«» the pitorof the district, cards w«;rc printed without his knowletl^i', luid liearlni,' the sinnatureof one Dvei- fwho acted suliseuiientlN at the ehjc- tion as the l-espondeiit's aijent for the election eX|)enses), with these words on them," Plea.se deliver cwt. of coals to A. D , for Thomas I'airv. !>. !>. Dyer;" and on the liack of the cards were the words, " With Mr. Pai'ry's comjiliments." Mr. fiiistice] (ii-ove, in .t^dvini;' jutl,L!,uit;nt, savs: "It has lH;en ovei- and over auiiin held that an unfair and imj)roper donation with the vi(!W, motive, aneiy was of such an extent as must have come to the knowledge of the mendjer or his agent." There was no such evidence in the present ca,se. The case of the South Huron ch'rtloii (24 C. P. 48cS, ante p. 576) wa.s referred to by Mr. McCarthy as .showing that 1H7H.] SOl'TII «)XT.\I!H». 7.'.7 tlu> <,Mt'ts to tlic ('Imi'chcH inciitiniu'd iti that vasv wci-f t'vitlciH'c ol' corrupt inwticcs on tlir pjiit kI tin- icsponil- ent, l)Ut thf circuiiistanccs were ciititfly - some- thing' enalilin;;' us more fully to undeistand tin true position of the mattei-. For example, it mij^ht not hii\e heen iniimportant to hav»' ascei taineil if tli resp(ji,deiit who stntes that he has i'ej)resented the ridiiiL,' since I.So7, was in the hahit of time." The remarks of the learned Chief .Justice arc coni|)letely met in tlie present case. The charity wa-> to a charitahle institution in his own town ; the cemftriy was attached to the same place ; the Kitle Association heloiii,'ed to his own county, and he had pre\iously contri- huted to one of them ; and, as i-espects his general conduct in I'eference to chuiches, etc., he .says, in his e.xuMunation by Ml' Kohinson, "I have not j,dven away more this year than in other years. I have ^iven, indudinif my own church, one thousand a year for thejmstten years. Since l.st January, ls7t>, I have paid t(j my own church at least $2,.")(il)." That statenn'ut was uncontraS DOMINION KI.KCTIONS. [A.D. Tlu'si! two cliai-j,'('.s luav J«' coiisidt-riMl t()<,'(>tlii'r ; aiiil if the evi ; lit)/ ilhnill lit '/ SI HI iiti I iihiiiil III n r( ply to the t'oliowinn' <(Uestion liy .Mr. Ilohinson, " lh> i/dh ntriin It "<'.'/ .'/' till Inltl iirfrr t is/.,,/ Afi- (11, II f ti I' iiilt ti fill ifli t'r fur ijiiii r sm aid l;u-e on thi' train jirevious to thi- .Mr. Dim asKeO llle .^a turd. ly [»re\ions to intoi'est niyseir with Mr. (Hen to endeavor to L;'et a situa- tion for his ehlest son. Fraid\. which I pro iiiised to d( Mr. (lai'vin had also wrdten to Dingle on this \erv suh- Ject. This letter Was proihlced, connnenti'd on. I will lead it : ind as it was \crv much 1^^ ". ^" I TdUdNTn, Out., liltll .June, |S7S, l>i:.\K TiioM.As, — I had a liiiii; iiit rvicw witli .\Ir. (Jlcii tln' day I Ii'lt Osli.iwji. lie .seciii.s willing to do wliat \\i' can. liut lie will do •lothiiij^ wliicli would iiiviilidat • his ('ji.'ction, whii'h lie t;oiisidors curtain. Ill' states tliat he has .always used liis inthicnce in your tavor in the matter of contracts, irrespective of p.)litu's, and will continui: to do so. He Sivys further tluit the (iihl)s never foi-^ive ; and if you have otlended tiiein in any way. they will never fori^ive it, hut will alw.iys use it to your ilisadvantaye. I think there is no ilouht of tiiis ; and 1 iiuiteaj^ree with him that tliey are r^^ldy to >;et rid of you if (lossilile. \h to Fi'.uik. Mr. (Jlcii will get hini i^n appointment either in a liank or m a (iovern- inent .--itUHtioii, whichever yon desire ; l)ut it must he iindei'stood that he does it from friendly motives and noton ."iccountof political intliience. Me reminded :.ie, however, that you could not e\|iect a youth of Franks ajie -no matter how capable to receivi; an appoii.tnient involving a laiL;o responsihility. This is <|uite plain; and he idvised a bank appoint- ment on account of the .special training it would confer, which would he of advantage in any calling he might engage in in after life. If you will write me what you would prefer, 1 will write liim or will see him if you coiihider it advisable ; or it might be as well if you would talk over the matter with him per.soiially, when you could see how your views agree iii reganl to it. I have nothing to advise. Vou know liest It * SOITII ONTAino. 7:.!» 1S7N.] what y 11 ilesire for Frank. l)iit I soi- the dillic.'iilty of ai;e wliich aiij,'ge8ts itsflf at tilt! outset. Let iiiu liear from yo" hy ri'tiirn, at llaiiiiltun. Vour.s truly, (Sigiu'(l), .1 m>. < Jakvin. 'Phis was ill .Mr. l)iiii;l(''s itosscssioii jit tlif iiifi'tiiii;' in •luiiK, anil c<)ns('(|uontIy, H!tlioUL!;li it may ln' and |)i-()lialily is ti'ii" that lie hail no, personally ajiplicil to Mr. (Hon for a sitiiation for his son, hr hail icijnrsti'il .Mr. (Jarvin to U(li conversation e\er did take place. It is not asserted hy Dimple tliat any Imt oiu; conver.sation did. Then, as resjie.c^ts the inter\ie\\ with ( Jarvin, Mr. ( Hen in his original examination says that, meeting' (iarvin on the train, " I asked him to nse inllu- <.'nce with Dingle and I'edlar (who are hrotliers-indaw of in June, towaids the latter end of it. .Mr. (Hen denies that he ever agreed to ujve Dinu'lc the conti'act at all. ( Hiddon, a witness, stated that in a conver.sation with l)inu,le at ()shawa, on the nie-ht of the .'5id of Aun'ust, he .said to l)ini;le, " (!len want.s you to vote for him," to which Dinj^le re[)lieil. ".No, he neveia.sked me to vote for liim ; he knows which >vay I go ; only he does not want me to do anythin;.;' against 700 DOMINION ELECTIONS. [a.d. him." Anotlier witness, James Gall, said, in reference to a conversation wliich he had with Dini^le in Au^aist, that Dingle said, " It' Glen had acted the gentleman with iiu\ and done the woi'k as he agree examination, on Iteing questioned as to his conversations with the aliove witnesses, had stated as respects Gliddon, "That he ha resj)ects (lall, he said, "1 y Pedlai- to collect accounts, as tlu-ir ati'ent resjiectively, was anxious to hrin^f aliout a reconcili- ation hetweeii tliem, and this he cfil'cted in March last, in Mav, 1S7-S, Hawthoiiie was tMi)i)loved hv I'rdlai to obtain payment of an acci)\iiit which he had aL;ainst thr respondnit for co[)p('r, and did so, and ohtaiiu'cl a note for the amoiHit. On hanilini;; the not*- to Mr. I'rdlar hr said he thoun'ht that Mr. (Hen was in n-ood liuinor, and that it would l)e a ^'ood o|)portunity to ^ct the otliei' acci)unt settled. He stated he knew wliat tlif othrr account was; it was for tlif wrinn't'is. He asked Mr. Pedlai' wlicthri' in case the ae('()unt were settled he windd support Mr. (lien at the election. Pedlai' >aid : '■ Vou can ]ttoniise what you like, and, accorijin^- to his own eviileiice, reserved to llinl-^elt' the ri^lit to act as he nii'^ht think tit. Mr. Hawthorne took the account to the re- spondent, who iookeil over it and ^ave his note for it. Hawthoi-ne states positi\ely that at the time he picsented the account to Mr. (den, and .Mr. (den L;a\i' the note, nothiuL;' whatever was said aliout the election. 'I'he respoinlent, in reference to this cliari:.!'. says ili.at nothini;' was ever saiefy consists merely of oH'ers oi' jtiojiosiils to Itrilie, tlie eviilence rei|uire(l slionM Ite stronger tlwui tlial with respect to l)ril)ery itself; or wliei'e tlie alley;e(i hrili- ing is ;>ii oftei- of employment it oui^ht to lie made out lieyoml all doultt, liecaus(.' Avlien two people ai'e talking ot a thin;^^ which is not carried out, it may he that thev honestly y(\\'v their evidenee, hut om,' pei'son understands what is said hy aiiothei- differently from what he intends it." In the din-tut rn ni^^r {ibhl UYJ) Mv. iw^l'xc^: Willes said, with I'egard to mere otters to bribe: "Althou,i;h these cas(;.s have Ix'en classed Ixdow tlio.se of bribery l»y both the learned counsel, it cannot be supposed that any oH'er to bribe is not as bad as the actual payment of money. It is a leii'al otlenct.*, although these cases have been .spoken of as beinii an inferior class, by reason of the ditlieultv of proof, fi'om the possil)ility of people being' inistaki'ii in their accounts of conver.sations in which offers were made, whei'cas there can be no mistake as to the actual payment of money." Again, in the M(fllo>i> vntif {i O'M. c*c H. 72), Mr. .Justice Morris said : " I have desired to apply two rules to work out my judgment by. They are shortly these : Fir.st, that I .should be sure, very sure, before 1 come to a decision adver.se to any party where his character or civdit is involved; second, that otfer> or convei'sations unaccompanied by any acts should be nuich more strongly proved in evidence than where .some clear definite act has foUow^ed the alleged oiler or conver- •sation." The above observations apply with much foi'ce to the present ea.se. Tt appeared the witness Wallace and the alleged agent, Higgins, w^ere old friends ; that on 17th June, Wallace had made application to be appointed ■/.■■ 187.S.] SOUTH ONTAFtlO. 7ti:i police iiiai^istiatc of the town of Wliitliy, no sucli office lieing then in existence ; an'!>i)is, who said he was willini'' ti> support Wallace's ajtplication as an old friend; that he did speak to Mr. (Jlen, hut tliat lie never askeays that Hinuins did speak to him in favi»r (tf Walliu-e; hut he thou'jht it \va^ a joke, and that he told Hii^njins he tliuuuht Wallace ,1 vei'v impi'oper person for the otHce. Nothini;' was evtr done; no api)lication was ever maile liy the (\)un(;il for tlie appointment of a polici' mayistrate ; and nothing more was said ahout it. This was some considerahle tiim hefore the (dection, and the witness not oidy votfd fni Mr. (lihhs hut acted as one of liis committei'. I tiud thi^ cliartfe is not proved. I find that no corrni)t pi-actices jia\e hcen pro\ed to have been connuitted hy or with the knowledge nr consent of tlie said Fi-ancis Wayhmd Glen. Petition dismi.s.setl with co.sts. The Supreme Court of C'anada. on the ajjpral of the petitioner, atlirmed tlie judgment of Mi'. .Justice (lalt. •"! Sup. Ct. R. 041.; (14 Cinn niniis JimriKil, I S7J>, p. 1 4. i \^ i ! »' 1 1 1 m 7'i+ DOMINION ELECTIONS. [A.I. EAST HASTIN(;S. Before Mu. Ji'stice Armour. IU;r.i-KViLi,K, .'Uli Jfinuiiry, 1S7!>. Wii.MAM lloHEKT Ayi.eswokth, Pditioiier, V. John White, lirspondrnt. litlUoU--Marh.< fi/f Ihpiltii /i< tiiniillij Ojliois I'o'nl ihrl'niii. I i-rtaiu deputy retiiiiiin<{ oHicers, before giviii;,' out ballot papers to th< voters at the election in (|»usti<)ii, jilaceil iiuinbcrs on tlic ballots cor- respoinliiiL; witli the numbers attached to the names of such voters ou the voters" lists. //'/'/, 1. That till' deputy returning odicers had acted contr.u-y to l.iwin niimln'ring the ballots, and that the ballots so nunibered should he rejected as tciKliiij,' to the ideutitication of the voters. •2. That such conduct ^ f the dcpiity returning.' ollieers havini,' liad the oll'ect of ehaiij,'ing the result of the election, a new election was ordered. The petition cDjitaiiUMl tin- iisujil (•liar;j;f.s of conujit practices, ami olaiiiuMl tlic scat for the petitioner on a sci'utiny of the liallots. Mr. liiflniiic, (J.C., (iiiii Mr. Ifo/ili ii. foe petitioner. Mr. a. I). Dirhsini, iiDil Mr. Frul'n-h. for I'espondeiit. It a])peare(l that tlie petitioner ami responih'iit weiv cantlidati's at tlie election held on the lOth and ITtli Soptenil)er, IS7S, the vote hein^': For pi'tifioner, 1.20'): for res])on(lent, i.lScS. ( )ii a recount hefore the Jiniior •Ir lo-e of the Ci)unty of Hastinn's, it a|»peaied that the hallots foi- five polling' divisions, \os. I and ') Huno<;r- foi-d, "Nos. .'} and •') Thnrlow, and No. '1 Tyendina^a, had nuiiiliers on the hack. The -liinior Judoe rejected the liallots in two of the divisions, No. ") Thnrlow an.l N, '2 Tyendina^^a, and allowed the liallots in the three !• r divisions, thereby giving the .seat to the responded v. \-. inajoi'ity of twenty votes. The evidence as to the pin- ;' of numbers on the backs of the ballots was as follows : licnjdinhi IL'iirjj, deputj- returning officcn-, No. 1, Hungerford : I put the same number on the ballots and counterfoil ; I held the counterfoil in my hand until the m T tins to till ots cor- Qtuvs oil ti) l.iw in iiiuVl ii>- \vm\ Uif •tiou wii;^ •nt Nv«'i'«' tlUi Huiv' ft;v- >ctet il!l lUI' vie'.; he j It'oUow: )[iV I. ,a\\ots an, Hun- gerford : I commenced to number the Itallots from No. 1 of my own aecoi-d, when I was directed by the .sci'utineer of Mr. White, a namesake of his, to number them from the voters' list ; then I conmienced doiny- so. I think I had numbered eijxht or ten when I was told by Mr. White that I had to numl)er the ballots accordinj^ to the voters' list. I am not certain whetlier the lunubers 1 put on the ballots were i\w. inimbeis fiom the voters' list kept by me, or from the voters' list kept by the clerk. I followed the numberin*;- on one of the l»ooks, whichever it was ; some Imllots ai'e not numliered ; ei<^hteen is the lowest number which is on the ballots. I put the nun»bers on the countei'foils at Hi-st; then I stopped an2: that on the ballots 18 was the lowest, and 92 the hii.,du'st number; and that 10 of Aylesworth's and 2 of White's ballots were not innn- Itei'ed. Eihvanl Thrrsfier, deputy retui-niny officer. No. 8_ Thurlow : I do not know who put the ti;4ures on the backs of the ballots now .shown me. They mi^ht have been put on when the ballots were counted. There w(M-e 51 I \l 766 OOMIMOX ELECTIONS. [a.d. Rr« no nuinl)oi's on the ballots when they were put into the box, aivl theiT were no numbers on the ballots when they wiire taken out and counted. Mr. Tayloi' and Mr. Brentnall wc^re sciutineer.s. EUazer Brent null : I assisted to count the ballots as Mr. Tliresher took them out of the i)o.\. He said who they were for, and 1 put on the nuuiber.s. I nuiiilx-ifd them from one forward, just as they came out of the box, to see if they tallied ri_:ht. These numbers weie nol on them when they were taken out of the ballot box. Alhi'ii lyouc/cs. dejnity returning (jfKcer, No. '), Thurlow: The nund)eis on the ballots are the same as those which appear on the voters' list. EduHtrd r[()lli}i(pworf/i,(\oputy n.'turnin;^ oiHcer, No. 2, Tyendinaf^a : The numbers oii the ballots are tlie .same as those on the voters' list. The nmnber which was opposite a votei's name on the list was the number which ' always put on the l)allot, except in ojie case where 1 made a mistake, and put on 8 instead of 2. At the openini;' of the case, counsel foi- the jx'titioiier submitted that the recount by the County Judge was the only recount that could be had, and that his recount was final, and not open to revision by any other Court. Mr. Justice AuMoUll held that the recount by the CJounty Ju('u'e was not iinal, and that this Court had power to I'eeount upon a petition like the ))resent. Counsel for the petitioner then submitted that all the ballots ought to bt^ allowed, and that the proper way of detei-mining the ipiestion as to their validity was upon tlif ballots themselves, and that pai'ol evidence could not be received as to the nature of a mark on the ballots, or to show with what intent the deputy returning officer put marks uprm the ballots. Mr. Justic(! AuMOUU held that such evidence could he admitted. At the close of the evidence the ballots were examined and it appeared that the following had numbers upon II 187«.] EAST HASTINGS. 7(>7 them, as explained by the evitlenee «,nvs\vorth, 2, Wliitc, H'); No. ."), Huiii^'eiford, Ayle.swortli, o(), Wliite, 24 ; No. -i, Thurlow, Ayleswoi'th, 55, White, 50 ; No. 5, Thurlow, Aylcsworth, HN, White, 49 ; No. 2, Tyendinaga ; Ayle.svvorth, 77, White, 79. Mr. B('tlnin<\ foi- tlie ])etlti<^iK'r, ther"U))on admitted that if the hallot.s cast at No. 5, Tlunlow, and No. 2, Tyendinaj^a, were ri^litly ivjeeted, tlien, uide.ss all the ballots cast at No. I, Hnni,'erfoi'd, were rejected, the peti- tioner could not obtain a majority ; that if all the ballots cast at No. 1, Hunu;eiford, weie not rejected, the peti- tioner would be in ii minority, and he submitted that in that event it was clear that theie uuist be a new election ; that the act which caused the l)allotscast at No. ."i, Thur- low, and No. 2, Tyendin.ijjfa, to be rejected, was the act of the deputy return!; ^ officer; and that the constitui'uey must not be disfranciiised by the act of that otHcei-. [AllMOl'U, J. — If what was d(jiie at No. 5, Thurlow, and No. 2, Tyendinauja, ati'ected the result of the election l)y causing the resjiondentto be returned whep otherwise the petitioner would have been returned, ther" iinist lie a new election]. Mi\ Dickson, for the res])ondent, admitted that such a result seemed consistent with justice \x\v\ common sense. He cited Wnodirnnl V. Sarsnus ( L. R. K) (J. P 7'):5)- Au.MoL'K, J. — I think the ballots cast at No. .'), Thurlow- and No. 2, Tyemlinaga, were I'ightly rejecteil. The statute, ''VJ Vic, c. 9, s. 55 (Can.), as amended by the statute, 41 Vic, c. (i, s. 10 (Can.), provides that in counting the votes the deputy retui'ning olHcei" " shall reject all " ballot papers which have not been su])plied by the "deputy returning otlicer, all tho.se by which votes have "been given for more caiulidates than ai-e to l»e electtMJ, " and all tho.se upon which there is any writing oi' mark "by which the voter could be iilentiiied." The provisions are impei-ative. The ballots cast at these two polling sub- divisicm had marks upon them l)y which the voter could V 76A |)OMINIf)N KLECTIONS. |a.d. hu identifiod. By coinpariiifi; tlu^ nuinbors upon the ballots with tlu! numlu;r.s on the; voters' lists, it could he ascui- taiued which way each voter had voted. Woodward v. S(irnunn is precisely in point, and must govern this case It is tliere said tiiat the l>allot paper must not be marked so as to show that tlie voter intended to vote for ujore candidat-s than lie was entitled to vote for, nor so as t(» leave it uncertain whether he intended to vote at all, or for which candidate lie intended to vote, nor so as to make it possible by seeinLj the paper itself, or by refeience to other available facts, to identify the way in which he has voted. 1 think 1 cannot reject all the ballots cast at No. 1, Hungerford, and perhaps not any of them. All that I have any doubt about are those having upon them num- bers corresponding with numViers set o[»posite to the names of voters on the voters' list ; but the rejection of these would not V'utthe petitioner in a majority, and it becomes therefore unneces.sary to consider whether they ought to be rejected. The rest of the liallots cast at this polling .subdivision were proved not to have had any writing or marks upon them by which the voter could be identitied. They were numbei-ed, and improperly numbered, liy the deputy returning officer ; but his evidence, which is un- contradicted, .shows that the voters could not be identitii^d by the numbers or by reference to other available facts. There must therefore be a new election, and without costs. The petitioner, Mr. Aylesworth, would have had a majority of the votes of the electors, had it not been for the irregularities of the deputy returning officers, by which, and the recount before the County Judge, he has been put in a minority. The effe'^t of these irregularities is not to seat the minority candidate, but to avoid the election. The minority candidate was returned by reason of the deputy returning officers' irregular mode of conducting the poll, by which the ballots of a certain numl)er of voters were as effectually destroyed as if they had been put in the stove. (13 Commons Journal, 1879, p. 4.) i lh7Kj KAST KUJIN. ■•55) KAST KUJIN HkK(»I!K M1{. V|rK-(!HANrEI,I.OF{ Ml.AKK St. Thomas, ,',"//( JSf/i Jan mi r;/, unit Uh /■''liridiri/, IS^f). AUCHIHALD \U.\ K. I'rfiflDUer, V. ThoMAS AkKKI.L, liesfiinnliiif H.rrdtniri /vntiinj lii/ nil lujinl " C'oiniiinn K'li>/om of I lit roniifri/" (■iirni/il /iriir/iir Ci'in. One 1)., who hiiil bucn a cnii(]i(hitc for v>-.iious otliccH for twenty y«'iir« prior to till' I'li'ction in i|Ui'stioii, and IiikI frucly t-niploycd trciitiiig as an element in liia lanvui-sin^r, heeaiiie an a^'ent of the respondent, and treated extensively, as was his conunon praetiee, durin;^' the election. The respondtnt was aware of I), "s practices, and once, in the early part of tlu^ canvass, <^-iiitioned D. ivt to hia ti'eating, l)ut never repudi- ated hi'ii as his agent. //'-/(/, on the evidence, that as 1). did no more in tlie way of treating diirint; the election than he hiid done on former <>eeaHion«, and liiid em- ployed treatini,' as he ordinarily clid as his argument, and had not used it as a means of eorruptly intluencint; the eltictors, he was no yiiilty of a corrupt practiix-. Si i,ilili\ the treating proved in this case, if [iractised hy one not thereto- fore given to such piacti(;e. would havi; lieen sulllcient to have avoided the election. Observations on the law as it now stands, as holding out iudiieements to candidates to employ niiii who art; habitual diinktM's to canvass by systematic treating, and thus oause electioneering to depend upon popularity aroused by treating, rather than tlie merits of the candi- dates, or the measures they advocate. The petition was dismissed without costs, follnwing the ('nrrifkuriju* mxi' (-.21 L. T. N. S. ;r>(); 1 O'M. & H. 'IM). The petition contained the usual ciiarofs of eoiTupt practices. Prior to the trial, preliminary oljections t(t certain allcLjations of the petition were dispo.seil of l»y Mr. Vice-(/hancellor Proudfoot (4 App. K. 412). Mr. ('uliii MacdoiUjidl ami Mr. (Jo/jiw, lor petitioner. Mr. IfAlto)! McCorthif, Q.C., ;Htt's there to support nie. Mr Day went with inc. Mf. Day went with nie thiou'^h thf Air liiiK* and Canada Southern shoj).s. We were canvasH- '\U'^. I suppose he was doiuLt what he eouM to promote my election. He attt-nded a meeting; at De.Mcr jind Copenhagen ; he atlendeil the iiieetinLf at Ayimer. At'tei the nomination he went to assist nie at the ( 'openha^rn m(!etin,L(. No douht his assistance was vaiuahle. I kinw he was actively eni,'ane(| t'oi' ww. I toM Mr. I)ay in the early pai't of the canvass he must tie c.irerul not t(» treat. Mr. Day is in independent eireunistances. He .said lie had no money on nomination day, and I loaned him ti-n dollars. lie had come away without funds. He hu.s liorrowed money from me a lnnidred times, and I from him. From Ite^inniny; to (>nd I never diicctly or indirectly treateil. or uscij any undue influence. throuy;h the si.\ weeks the election lasted.'" Sdiniu/ h. iii- iiiciit. I r,is< (I O'M.v II.S2-.Si says: "'I'reatiii:^, to he cornipt, must lie treatini: inider eii'C'umstances and in a manner that the person wlii» treated used meal or drink with a eonupt mind, that is, with a view to iiuhiee people, hy the pamj»ei'in<,f of th* ir- appetites, to vote or to ah.stain from Noting, and in .so doinj^ to act otherwise than tliey would have done with- out the in