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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>, !:«!
(!arlut<in (I
h^t Toriiiito TO
<ilL>ii)(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{<s|)i!L'tiiii.' Contriivei'tfd l"',lei'tioiis, 187'>.
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<Ki:n/ii: ,f >>/. I ■lii
mill
rs. V. (IliolMiK
\\'i:i,l.i:s|.i;V HaMII.I'<iN, Jlrsinnlili hI.
/)'< sjin/iili III'-'' liijlit til iiii/ii iir/i I'l lil'iDiii r ■•< i/iliili/iiiiliiiii .M'n lHHIi \'filir
V.S.V.
1 .1/11 <■/ oj' iri /'''■'( ■</ii'' . Xiifiirri/ 111/11/ iij' Ax'iiiliiiiii III in I iisnh' in'H,
f. Si I,
/■:.</>
liiiiii 11/ III/ J '/( ///>• -' 'iiiii
'I'll
til
ijllil/l/ oj'Corril/i/ I'lil'I'tris Id tiji/iiili
rosponilciit :ittac'k('<l tiic i|iiiilili('ati<iii of one
til
//(;/ II /IIIII /III I III M
iM-titicPllll-^ Mil
lis tli.'it lie uiis an alii'ti. ami tli.it he had iio |)ni|ii'i'ty (jiialili-
ratiiiii, liaving niailc an a.s.sij,'nnii'iit in iiiMilvcncv lit'lnrt- tiif die linn.
'I'lu' IcaiiH'il .luilyi' a<Iniittt!ii tiic fxidmci', luit
III III, (li That the t,'\ icli'iiiT as to in'titiniicr haviii;,' lived in the rnited
States withimt .showing that his p.irmts were .Anieriuan eiti/i'n.s,
was not Mitiieieiit to estalili-h the i
the l-",ie(Uon .\(t ol tSdS. liy the tetni
whose « il'e has an est:ite for lift
li.iiL'e ol aheiiaire.
Mat
,'ives to a hit
diand
ir a Lcreater estate, the iiLTiit to vote
in fespeet ot' Ids wife's property ; and ih.il tile petitioner h.ivin;,' that
i|iialilieation, and heing in pos.sessinn of his wife's e.state, was h.-hl
entitled to petition.
Ihlil, fiirtiie)-. that a not.iiial copy of an as>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'<l
till' scat I'lif till- (Ifl'cati'il cuinlifljitt'. .Mr. .Fames linyd. The
nuijiuity for the* respoiiileiit Wiis |.*)4.
I'KoVINf IM. KI.KCTloNS.
[a.d.
Mr. Ikthtiur tniil Mr. J. K. h'rrr. \'ur jM'titioinTs.
Mr. ./. Jlilhiurd Crnmrtm, Q.('., for ri'spuinlcnt.
Counsel for the rt'spondciit j)i'o|)()s<'«l to full witnesses
to jintve that the petitioners luul no riy;lit to vote. Coun-
sel foi' til" petitioneis <'onten<le<l, 1st, Tlmt the ohjection
'.vas a pri'liminary one, un<l should have lieen taken Itefore
a Ju(li;e, or the ('ourt. and could not he taken now : and
liiid, That the petitioners had ohtained an oidei- for ]»ar-
ticulars against the respondent, an<l the olijection had l»een
waived. y,>»;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<l, had stateil that he " had lived at Fort
Covington, " that lie " had come from Fort ("ovington." in
the United States. The Clerk of tlie Peace ])roved that
no affidavits for the naturalization of the petitioner had
heen tiled in his otiice.
Counsel for the rt'spon<lent then ])ropo.sed to put in
a notarial copy of an assignment in insolvency, made hy
the same jjctitioner on the lOth duly, 1>>()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<l that there was no eviilencc that
the petitioner wa.s an alien ; that as to tlie qualification,
the will gave an estate by entireties. Tn any event, the
petitioner's wife retained one half of the estate, and the
(a) See South Huron cane (D.), 29 C. I'., 301 ; 8. j). Diiferin cane (().), 4 App. R., 420.
1N7I.]
rHESCO'lT.
8
husliaiul vvouM l»o cntitli'fl to vcttc on her (|UHlification.
As occupant, he would liavo a ri<,'ht to vote: Itoijcn on
Elect ioH^i (Nth K<1.).!», .'}2.
Mr. C'timci'oii ccjntendod that tho ctrcct of tljc will was
that both parties were sei/ei| in entirety. The petitioner
is not entitle*] to vote as occupant, for he is not an occu-
pant to liis own use and lieneHt, Imt merely fur the
benefit (»f his wife : Watkim on Coniri/ancing, 170.
Kkhauds, C. J. — As to the first ground of objection, I
do not think the respondent has <,'one far enouj^h. 'Hie
petitioner is said to be here, ami can be called. It is not
.shown that the parents wei-c American citizens, or were
born bcfoi'e I7h.'{, and resided in the United States since.
There is nothing against the presum[)tion that tliey may
have been natural boi-n subjects, and the fathei" devises
this very pntperty. But if it becomes nece.ssai'V to eon-
sider tlu; (piestion as affecting the result, I will reserve
it as a point of law foi- the consideration of tlie C'ourt,
whether the evidence is such as to justify me in finding
the petitioner an alien or not.
As to the interest in the estate of his wife after the
petitioner had assigned the intcMvst devised to him under
the will, I think the wife has the estate yet, notwith-
.standiuiT the assiixiunent by the husbantl. I think thai
tlie Inflections Act of bS()N, by the term '" owner" means
to jxive tlie ri'dit to vote to the liusband whose wife has
an estate for life, or a greater estate in the laud; and that
when in possession of such an estate he is pi'oprietor in
right of liis wife. Heiv tlie land is assessed for 1?<)00, and
the wife's one-half share will be worth S-iOO, more than
sufficient to tpialify the husband. If it becomes necessary,
I will reserve this (juestion of (|ualificatioii in right of the
wife's estate, for the opinion of the Court.
Evidence was then given proving bribery and treating
by agents of the respondent. The evidence material to the
is.sue was as folUiw.s :
Walter Shanr proved that he had received §40 from
James H. Milloy and SOO from Col. Higgin.son, of which .
H
i^
l'Hn«IN( lAI, i;i.i:( TloNS.
[A.l>
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
<J
llesiiel, n voter
1^'
:a\(' it to liiiii at his own |»lact
I
Just ;fave it to liiiii : il was not for Notiiij,';" also to
Micliael SliM H- SI.'), Iieeiuise lie lil'oU;^lll t Wo \ote|s flom
tile sjianties; alsti S.'J to Moses: "Moses voteil for Mr.
Haiiiilton. It was after tlie election I iiia<le him a present
of .S5. it was not for lia\iiiL,^ voteil: it was just fdi-
haviULJ ^foiie up. I thoU;,f|lt he IuhI \otei|. I <li<l i,q\e it
to him just to |iay his way. I laiti out the rest of the
money several ways I know ahout, and sja-nt it. I ilifl
not <ri\«' it to aiiv one else.
t
l'iiss-i:iil III iihi
I
lie lialanci
ih
i\(
ke|it : 1
lo one e\er
a.skc<l me to ;,'i\e it hack, nor lia\e I ever askeil miy i>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. !<iii<l"'ii iiKUH'V. Hf is u \<»tfr wlm \nt»'i| Tnr
Mr. llniiiiltiHi. I <fn\i' liiiii Sl.'t; t|i<| imt tril him wliiit
it wiis tor. It was iil'tiT In- \(»tfi| lie iiski-il nic I'nr niDiicy ;
111- sn'u\ lit' liiul Im'i'Ii jit soiiif i'\|ifnsc. I kiit'W In- liml,
ami '^n\r liiiii tin' iikhu'v. I ;,'a\f .Mr. I'ltt-r < lailuu'lx'i' at
a iiit'i'tiiiLf "t" oiir cuiiimittfc SIOO. lie i|i<| imt ask iin- for
till' limlicV ; I sl|]i|iitsi'i| III- Wulljil |tr<>liiut<' tin- rjcctinll
witli it. Mr. t J.illai^lu'r xoti-il for Mi'. Ilaiiiilti>ii. I lu'lifxc
Mr. Iiia<llt'y yol soiih'. say S2.'). Mr -^ai'l tlii'rr wirt' uiily
!*1.'): I tliiiii'^lif Si'.'i. Mr. llii,'L;ins(»ii IimiiiIi'iI it In iiif \m
jian<l til liiiii. Ill) ilmilil tn |iriiiiiiiti' flu' I'lrcdnn. 'rrrriici'
OHuylc ;Lr"t I ihiiik. S2.'i : I liainlt'ijit t<i liiiii ; < '"I. Ilii;i,nii-
smi liaii>li'<l it t'> 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
respoii<lent in his examination |)rior to the ailjoiirninent
• leiiieil that any money in relation to the election was
cKpemlcil with his knowledge ami consent.
Counsel for the j)etitii)ners stateil they did not wish to
e.\amine the respondent further. The end which they
wished to attain was the setting aside of the i'lection, and
they had no wish to j)i'oceei| witii the mattci" fui'ther.
lllcll.UtDs, C. .1. — I determine the election was void. I
determine that no corrupt [)ractices have heeii proved to
have lieeii committed hy or with the knowledge and con-
sent of either of the candi(hite.s at such election. I shall
certify that thoru is roa.soii to l>elieve 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 <j;iven to the parties under the statute, who are
apparently, fi-om the evidence, guilty of coriupt practices*
that they nmy have an opportunity of being heard, so
that I may decide and report to the Speaker on that sub-
ject under subs. /*. of section 17 of the Controverted Elec-
tions Act of 1871. The Act itself having been passed so
recently before the elections, the practice under the Act
being new, the Judges being mudi pressed for time in
carrying out the Act, the delay which must ensue if
thest' proceedings are adjourned to give the proper notice
to the jmrties who wei'i' appai^ently the most active in the
corrupt acts, the inconvenience to all parties. concerned>
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 entitle<l to their costs, having reference
to the cases of voters in which they failed to make out a
case. {(I.) (5 Journal LcyLs. Asscin., l!S71-2, p. o).
CARLETON.
jr
Before Mr. Vice-Chancellor Mowat.
Ottawa. IGth ami 17th Jmx', 1871.
Robert Lyon, Petitioner, v. Georcje W. M(jnk, licspondenL
Brihtri/ Itif an Aiji'nt — AilmUvon of Coioixrl.
The admission of Counsel in open Court, — that the giving of S'2 to a voter
by an agent of the raBpondent, after such voter liail voted, such voter
aih'.iitling that he did not know why tlie 82 was yiven to him, was
bribery, — acted upon, and the electi:.n avoided.
The petition contained the usual allegations of bribery,
&c., and claimed the se.tt for the petitioner on a sci'utiny.
The votes at the election were: For resptmdent, 822; for
petitioner, 812. Majority for tlie respondent, 10.
— I * — — --■,,, I — — -■ ■■ . — . ■ —
(a) Seti lis to the taxation of costs in this case, 32 Q. B.. 303.
1871.]
CARLET(»N.
Mr. J. HllUjard Camcruit, Q.C, t'oi- ivspon^k'ut.
Mr. R. A. Harrison, Q.C., t'oi- pctitiouc!-.
Pfii'ticulars of charges of personal ln-ilttMy ajijainst the
petitioner were filed ; Imt at'tei- the examination of one
witness, they were ahandoned.
Tht' evidence afiV^cting the election v.'as as follows: —
A/r.rander Kinch : I know Crawford Corhett ; he lives
near me, two miles fi-om nic I am a farmei- ; liave a
rented farm. Crawford Corhett jjjave me ^2 after I had
voted ; I dont know why he j»ave me the 1?2 ; 1 did not
ask him ; he owe<l me nothini;'.
The Counsel for the respondent admitted tliis vote to be
bad.
Five other votes for res[)(mtlent were admitted to V)e bad.
Mr. H(irri>ion, 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<hnitted
that tlie voter Klncli, whose name was sti-uck off for
bribery, \vas bribed by the agent of the sitting member,
and without his knowledge or consent.
The Vice-Chan'CELLor on the for^'going evidence and on
the admission of Coiuisel, then declared the election void;
and nuvle the following special rej)ort :
"That the votes of Joint (Jni ii/, nwd AIck adcr Kinch,
who voted at the .said election, were struck off by me, on
tlie scrutiny on the trial, on the ground of bribery ; the
evidence in eacli case being that of tlu; voter himself
given at the trial.
" That the persons who paid the money to the said
voters were not produced as witnesfses at the said ti'ial ;
and there was no proof before me that they liad the oppor-
tunity of being heard as reipiired by the 40th section of
the Act."
No costs to either party. (.') Journal Lajis. Asxvm.,
1871-2, p. 0.)
8
I'HOVIXCIAL ELECTIONS.
[a.]).
GLENOAKllV
*
ill'
Brfoiu: Chief Jistke Haoartv.
CuRNSVALI.,
'/ ((//'/ .'.//v/ ,/it
is: I.
V. James Chaig
RoDKIUc-'K MfLENXAX rt ('/, /'i/ if iinirrs,
J!isjioiii/i iif.
Traithi'i (it Mt'/iiii/i (>/ 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 .<lli(i under see. (I.") the statute jioint-
edly ((inittinir all mention of ticatiiii'.
Wh
■har''e of a eorrupt intent in treatiui: is niaile. the evidi'nce
must satisfy the .Iud;,'e, i)eyonil reasonal
lie ilduii
t, that the treatiiiir
was intendeil directly to influence the eleetinn. and to ])roiluee ;
elJ'eet upon the electors, and \\as so done wit!i a inrrupt intent.
The re.s))ondent after announcing liimself as a candidate, gave 810 in tv
S.) 1 1
ills to a cliild of a vutei'. tlien three nr four \ears
.1(1.
(cell u.unei
1 aft(
He liad U
ho woulil,niake the child a i>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 •■<!{. The respondent
.stated that the taverndvecper was an old friend of his, and wa.s just
starting in luisiness. and that he thought it right to jiay hiin as it were
a CI
oin])linieiit <ui
liis tirst visit to his tavern, and that he helieved 1
le
\\ oiild have iloiie the same thing if it was not election til
Jl'iil, that lieiu'' an isolated case in ar. t
lection contest, fi'ee from profuse
expeiidituri", and this heing a (|na8i-criminal tri.al. iindlving grievous
results to the ri'spoiidcMit if found ;i corrii]it practice, such payment
wa.s not —after the explanatioii.s of the respondiiut an aet of hrihery.
The petition was dismissed, Imt owini/ to the unwise and imprudent acts
of the respondent, he was alloM'ed only (Uie half of the tax.-ilde costs.
Tlic petition c'oiituincil tlu- nstial sillcLTiitions n.s to cor-
7'n])t |iijv('tic't'.s, etc.; Imt diil not flaiiii tlit- smt. Tlu' can-
didates at the election wei'e James ('rai^'. the i'espon(lent>
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<l as tliev had hehaved well, to go to their
respective hotels an<l have .some refreshment, and I would
call lound in the moi'uing. All that was understood was
to ha\i' a glass of li(|Uor as at Somi-rstown. Three hotels
Were there, kept hy 'I'homas, Angus, and John Macdonald,
respectively. I thiidc, not sure, these thi'ee men were i:iy
sn[)j)orters. Some of them went to the h(»tels; I went to
all three; they got liipior tlu're ; 1 talked with some in
the Itars ; I paid for this. I paid from i^'-i to 84 to each of
the thiee hotels foi- this ; 1 paid it next day ; paid none
since then. I pai<l them what they said was the cost ; the
wli(tlc did not exceed SI2. At the close of the Alexan<lria
riTiiitui
10
PROVIXCIAI. ELECTIONS,
[a.d.
inectini^ T <i;ave thein a like invitation. The niootin|j; was
in a liall, part of McPhoe's liotcl. The Attorney-General
liappened to lie there, and lie told jne it was contrary to
law ; }Uid then I said, if so, I would not treat, and I did not.
He said it nii<;htcost nie my election. I irave John Tobin
SIO two or thi'ee weeks before the election. I stopped
part of two days, an<l left my man and horses. It was a
verv <lii"tv time. I <rave him S-'k savin<r I was .sorry I had
dirtied his liouse. Next day I y-ave him S') moi-e. He
asked me should he treat the people there ; 1 told him no,
to make them pay for their drinks. 1 did not eat or .sleep
there ; I slept with a nephew. My man must liave taken
two or three meals, and stayed a nijjflit. I had two horses ;
tliey were there part of a day and a niyht, and *;'ot
three or four meals. 1 understcxjd I was payin*,' for
self, man and two horses. I did not ask wliat his l)ill
was. I said, I have dirtied up your house, and I would
come this way often. Twentj'-tive cents a meal is a
connnon char<^'e ; fifty cents for a feed of oats, two
gallons each for a pair of horses ; not so much if staying
over night. Twenty -five cents for a bed is usual. Nothing
was said about elections. I was at Tobin's after the
meeting at Alexandria. I went up there to attend a
meeting ; a missicmary meeting ; an elder was with me ;
it was an independent meeting ; it Avas a regularly ap-
pointed Presbyterian meeting. I was written to go as a
representative elder. I never asked Toltin to vote for me ;
I believe he did poll for me. He was a very old friend of
mine ; we wei'e raise<l as boys together, and 1 had never
been in his house before. I Vielieve I would have given it
to him if there were no election ; he was a young man
begiTuiing business. I was at Alexander Grant's (Junior)
house after the Alexandria meeting; I went there to see a
son of his who was called after me ; I .saw the child ; it
seemed three or four years old. (irant was not at home ;
I did not ask for him. The child could talk a little. I
gave the child $10 ; I did it as an acknowledgment. I
heard of his being my name-child about two years before.
1S71.]
fil.EXOARRY.
11
I lia<l not been in that part of the country l»ut once hofore ;
1 live twenty niik's oft". I liad said wlien I first lieanl the
child was callod aftoi- me, that I W(jul<l make him a \)vc-
sent as an acknowh-djjjment. I gavj tlie money to the
child ; tlie inothei' said they did not waiit money. I said
it was not foi' her, it was t'oi- the child. The cliiM took
tlie money ; I ^ave him two 1*.') hills. Tlie mother knew
riic and shook hands. I said I nnderstan<l yon liave a
little Imjv here of mine; slie .said there is one calhd after
voii. I was not there ovei' ten mimites. Intended to <1<)
this l(»n<;- liefore. I knew Clivant fom- y«'ais ai,'o ; he was
a stioii}.;' supporter of mine at elections. I don't think I
had met him sinci- the preceding election. Oin* tiist
ac([uaintance was at that election. I spoke to J. Mc-
Ken/ie that I was ifoing tf) i^ixe this ; this was ten days or
a fortnight hefoiv 1 went to CJrants. 1 had nevei- called at
the (Jrants hefore this. I made no similar present hefoi-e
out of my own connections. I have no name-child. I have
I'iven presents to those called aftei" me of mv I'elatioiis.
Mr. Bif/noir contended that the election was void, on
thite grounds — 1st, The treatinu" at the meetinixs ; 2iid,
The uift to Grant's child ; 'h-d, The payment of 810 to
Tohin. As to the first point, in En<,dand the law was directed
ayainst treating of individuals with a view of changing
their voles, which was a species of ]»ril»ery, and thi^
accounteil for the use of the words " cf))"rupt tivating" in
the Engli.sh Act. Our Act was directed at the practice of
giving entertainments at taverns to meetings of electors,
with the view of promoting the election. Next, as to the
intention of the candidate in treating. As was .said in an
English ca.se, the treating may not have been dt^ne with
the view of gaining the vote of A or B, but it was done
to gain popularity, and that was sutlicient to meet the
statute as to pnjmoting his election. If in Englanrl this
was the ca.se, where a single voter was in (juestion f for-
ticri. must it be followed here when a larire nundier of
electors were in question. The meeting and the speeclies
Were int(.*nded to gain popularity, and the treating after-
iBSaBBSiiBansaH
.■»
>
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 iwil<i Jiilr ; it only
meant doing an illegal and forbidden action. Under the
statute of 1S71 the term " coi'i'Upt pi'actice" was detinetl to
include "l»ril)ery, un<lue influence and illegal and pro-
hihited acts."
[The Chikk rri'STlf'E said, if he had to decide the case
meri'ly on the groinid that tlie act of treating was a cor-
rupt pi'actice because j)rohil»ited l»y the law, he would
reserve the case for the Coui't on acc<junt of the conse-
(piences that would ensue.]
The wor<l corrujttly diil not occur in the (ilst section.
It had been left out advi.sedly, ami the statute must be
read without it.
[The Chief .Tustfce. There was nothing of course
immoral in treating apart from tlie statute. Even under
the Act the candidate might treat as nmch as he liked at
his own house, and his agents at tludr own houses.]
Ihibes v.ere always coveied up in some way, and especi-
ally would the candidate be anxiotis to conceal his conduct
now that such seiious ccjusetiuences ensued. Briljcs were
always given undt-r the coloi- of some excu.se, which, it
was su[)poseil, wouM account for the gifts if they were
called in ijuestion. As to the gift to the child; the money
Aveiit eventually to the bi'iiefit of the parents, foi- it saved
them so much of its clothing or support. It was the only
instance in which Mr. Craig had made such a gift, and it
had been talked ovei' Just before the elections. It was a
plain case of bribery with a view of influencing the vote.
If this was held to be an innocent gift, there was nothing to
prevent gifts to all the children in Glengany next election.
[The
thr
ee
Chief
case
Justice. — It would be <litferent if two or
ad been proved against Mr. Craig.]
As to Tobin's case, sub-.sec. (3, sec. 07, of the Election
Act, allowed the candidate to pay expenses, but it wa.s
l.s^
(;i,EN(iAHKV,
13
can-fully limited to "actual" expenses. Heic, the real ex-
penses were altout three dollai-s ; and ten dollars was
<dvi'n. And it had lieen said that tlie seven ddllai's was
not for treating, thoUifh treiitinjj; privately under uur
statutes was le^^ml eno-,i;;h, exeept as evidence of a c<»i'-
rupt l»ai'<,fain. it was ;,dven, no dt>ulit, 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 <fave S") at niifht, when onlv 7') cents were (Jue, an<l
f
ollowe<
lit
up with !i second S<.") next day, when little more
was dui', made the cas<' worse. Suppose it had only hccn
.shown that he ina\ e him S7, and that Toitin voted, the in-
ferencewould haveheeii tlmtit Wfisal»ril)e,and he suhniitted
that the explanation ;4i\(n did not rehut that infei-eiiee.
Mf. Miic/iiniiiji on the same sidi
As to Toliin's ease, h
pointed out that if the plea of old act|uaintanceship with
T(»liin was to prevail Mr. Crai^ miiiht liiihe all (deiitiiirry
nt jt eli'ction, for they would all l.e pretty well known to
him thi'U. The excuse was of the most flimsy eharacter.
As to the payment to Grant's chihl, the j^ift was not of a
character suitahU' for a child, ami was not i;iven .so as to
provide for its amusement or heiiftit : the money wasL:i\i'n
in the shape of two S') liills, and unless taken fi'om the
child would he torn up in li\r minutes, and not for the
iKiietit of the child so much as for the parents. If it had
lieeii intended for the child s amusement it should hu\'e
taken tlu' sha])e of a toy, and if for his lieiu'rit some in-
.structions would have heeii left ahout it. As to the treat-
ir.t;, it was part and {)arcel of the meetiiiL;', and was intended
;■• pitimote tlu- election. It was ^'isen not to his personal
i.i.mls hut to the general hody of voters at the meeting.
21 L. T. \. S., |L>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 prohiltite<l acts,
included as corrupt, were those in the 07th and suhse-
<[uent .sections, .such as carrying voters, tSic. The wider
intention could not have been meant l>v the Legishitun,'.
and if it had the}' had not .so expressed it. He contended,
further, that the treating was not connecte<l with the
sitting member. He was not a candidate when eithei- acts
of treating' was connnitted. In Ent-land, acts done bcfi^re
the per.son became an actual candidate afl'ected him; here a
candidate meant not only a per.son elected, but one who had
been nominated, or wIkj liad declaied his intention to be-
come a candi<late. The evidence of the sitting memV>er 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 mentione<l in the statutes, and the Court oi-
Judges should not interpolate it. The i-espondent had
said that he ha<l no view of inHuencing the election when
he treated, and that stood uncontradicted.
[The Chief Justice said lie had moi-e d-fficulty about
the Tobin case than about the name-child's case.]
Mr. Craig's conduct had Iteen injudicious.
[The Chief Justice. — " And highly ( hinge rou.s."]
After a short adjournment, the follov»'iug judgment was
delivered :
LS71.]
OLEN(JAHI{Y,
15
Haoauty, C. J. — At tlif close of the (.'vidi'nct' tlic ju-ti-
tioiK'i's' connst'l iviluci'd their objections to tliive matters :
First, the entertainment at the meetings ; second, the ten
(loUar i£\h to the child : third, the ten dollars to Tohin.
As to furnishing entertainment to the meeting of the
electors, under the 01st section of the Act of l.S()(S, I should
have little d(nil)t in deci<ling that the only conse<|Uences
muler that statute should have heen the penalty of !?I00
provided by section (i'). (c) The late Act, however, has raised
a (|uestion as to whether this comes under the head of a
corrui)t practice' a- an illegal and ])rohibited act in refer-
ence to electi(»ns. If it comes under that description, it
not only voids the election, but i-enders the candidate
lialtle to the grievous personal disabilities set forth in the
Act, for a pei'iod of eight years. If the case before mo
turned upon the naked question, whethei' the mattei" pro-
liiliited by clause (il was under the pivsent law a cor-
i'U[)t practice, with all its heavy consetjuences, 1 should
I'eserve the legal point for the considei-ation of the Court;
but for the purposes of this case I shall ti'eat it as such,
subject to this modification, tliat I think by all fair i-ules
of statute construction I am Itound to hold that the evi-
dence nmst satisfy me that what was done was done
corruptly. Wlien the statute says the candidate sliall not
do a thing with intent to promote his election, I think it
must mean something beyond the literal meaning of the
words. If he contemplates Iteing a candidate, every step
he takes, the issuing of hand-bills; canvassing of electoi's;
the mere act of travelling to any given point; of paying
for a conveyance for such purpose; these and a hundred
other things may literally be- said t»j be with intent to
promote his election. When, therefore, a charge like tlie
present is made, I think tlie evidence nuist satisfy tlie
Judge, beyond reasonable doubt, that the giving of the
(a) The clauses relntin;; to Treating, lii're comiiu'nted uiion liv the learned ("hief
.lust ice, were materially altered liy gutisequeut le;.,'isIatiori. In section (il, the wonls "with
intent to ]>rouiote 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;- an<l drinking', supplie(l hy the
cauilidatc's." Ali'ain lu' .-ij,eal;s of treating' " as a means of
)eni<f c
lectcd
in order to intluence voters.
And so in the Tduiii'm-lh crtsi: [Iliiil. So), the same K'arned
Jud_<;v sun'g'ests cases where treatiiii;' may well he c()ii-
sidei'ed and held corru})t, and he says it is always a (pies-
tion of intention — an intention to produce that ett'ect
which the Leijislature meant to forliid. See also the
isTl.i
CH.KN'OAHUY,
17
U'ld/innfiin/ rntr {//n't/. .')7), Hiul the facts thci'u luilil to
hIu'W ctdiupt intention. In the Coiriifn/ cisr {Ibid. KXI),
thu Hanic .Iii(lj,'»' says, " wlifii fatinii; untl <li'inkin^f
takes the t'oi'iii of entieinj,' jH'ople, for the pui'pose of
inducing,' them t(» ehun^^'e their minds and vote foi- tlie
party to which they do not ht^lonj^, then it hecomes cor-
rupt." In the /Jnnl/onl ni.sc {l/mf. :\7), Bai'on M.:rtin
detines " cori'Uptiy " thus: "I am satisHe<l it meai'.s a
thini;' doni' with an evil mind and intention. Unless ^h»;ro
is an evil mind ami iiiteiition aeeompanyinji,' the ti'.t it is
not donc' eoiiu|ttly. It means an act done hy a man
knowing! that he is doiny; what is wronn', and doin«f it
with an evil oliject. 'J'here nnist he an evil motive in it,
and it must he done in ordi'i- to Ite electecl." In the case
last mentioneil, it was not done in ortler to he elected,
hecause it was known how all the men wouhl V(»te. They
were there hecause they were voters pledired to ,supj)()rt
respondent. It is therefoi'e idle to suppose the meat a!vd
drink W(;re j^iveii to induce them to vote. In the Sftt/ci/-
hriih/i' nixr (Uii'l. 7-}), Willes, J., ,says " that it must Ihj
done to influence the election hy the •'iviiiLT of meat and
driidc. The (piestion whethei- or no there is a ('oi'rui>t
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:<f (Ihii/. 124'), where he .says the Judge must
satisfy his mind whether that which was done was really
(lone in .so unusual and .susj)icious a way that he ought to
impute to the [)er.son who has done it a crin»inal iutenticm
in doing it, or whether the circumstances are such that it
may fairly he imputed to the man's sincerity, or his pro-
fusion, or his desire to express his good will to those who
\H
I'KnVISr lAl. i:i,i;(TI( tNS.
[A.1».
'i.i
honestly 1m'1|» liis cansf witliuut rcsurtinj.' t<t tin- illc;,')il
iiiodf of iittriK'tiiiL; voti'i-s liy iiii'iiiis of nil (1|>|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<'<l
th
vholb
tl
leu' ca.se wliolty on tlie res[)on<lent s evidence, an<
lent'
d 1
am
a.sked to infer from it the existence of a corrupt intention
to bribe. VVHiile telling us of his giving this nioiK.'y.
lie also swears that it wa.s simply in pursuance of a
declareil
bei
purp
)ose o
f hi
lt\
s, avowed two vear.s
y
bef
ore.
Th
ere
ing nothnig very extiaordmarv m
t\u
pi
e.sentation of
$10 to a god-child or name-child, either in the fact or
;' i
IS7I
(iMINli.VKHY,
I!)
the Hlliollllt tit" till' ^'it't, I tlo llut t't'cl lit lil».'fty to rt't'lHi'
to iM'lit'vc that |i.'ut of Ills r\i<lciicf wliicli |iruvcs his
iiiiiuffiici', aiitl to Hci'fp^ as (•iiiichisi\t' the fxistt'iii-t' of h
liiotiNt' which Iir cNiU'i'ssly
disci
HUMS.
Thinlly, a-; to J*' 10 to Toltiii, I ihliiU it \va^ a i a"t()f
siii<fiilar iiii|irii Iciicc iiM<lcr the circuiiHtanci's ; of this I
have iio iloiilit. Milt I am tioL so clcai' »n ti> 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, an<l
he ( ies|to|idelit) had never lieell in his house Itefore ; and
as he had dirtieij the house much, in |>ayin;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
<lone the same thinj;- if it had not Iteen election time. Had
I found respondent j,^i'nerally resorting;' to such a course in
his canvass, juid makin;^ payments to innlveej)ers and
others larn'cly in excess of the measure of fair I'emune-
ratioii, or t ncii had there lieeii pi'oof of .several such
instances, 1 think 1 should have found <;reat ditHcultv in
acceptini;' tlu' explanation. In this isolated case, in an
election contest singularly and exceptionally free from
any profuse expenditure, conducted, in fact. ui)on the most
economical
»i'inci[)les, with no personal canvass or color-
ahle emi)lovment of au'ents, I find it still harder to refuse
to accept th' innocent interpretation. The election for
(}len}.;arrv is shown not to have cost the .successful candi-
(hite ove' SIOO foi- every expense. I only refer to this
fart as in some way rel)uttiny; the imj)utation of any
tfeiieral desion of carrying the idectioii by corru[)t means.
Hail the evidence l»een at all ovenly Italanced, 1 sliould
have lieeii placed in the most jKi-inful position of decidiiiL;'
in a quasi-criminal case, without the aid of a jury, a point
involving such grievous results to a candidate. Such
])osition is well described in a late English case, S/cirns v.
TiUctf, L. R., ('), C. P., 147, where the Judge say.s: " I cannot
imagine to my.self a jurisdiction more painful or more
'Hyw
Ij! ;'
m\\
20
PIIOVINX'IAL ELECTIONS.
[a.d.
responsihle tlian that of a Judge deciding, without the
assistance of a jury, that a candidate lias been personally
guilty of so grievous an ottence. " I have to accept the
heavy resi)onsil)ility imposed upon nie to decide on a
man's motives and intentions ; in the words of the last case
cited, " with all the (juestions that nnist operate on the
i.iind of a Judge not assisted by a Jniy in pronouncing
alone, and without appeal, in a criminal case, and to
make the candidate subject to the grievous disalnlities
imposed in respect of his future status, both parliamentary
and othcu'wise."
I tliink the giving of refreshments to pultlic meetings
a most unsafe and dangerous proceeding on the part of
the candidate. He is always expo.sed to imputations on
his integrity, and to a possible adverse decision on a
judicial iiupiiry. 1 reserve to myself to decide whenever
occasion may re(|uire the bi-oader (juestion suggested on
the construction of our statutes. My decision I'ests on a
construction p()ssil)ly more favoi-able to the petitioners'
view of the law than may be hereafter adopted. Acting,
as 1 am .satisfied any juiy desirous to act honestly would
act on the facts in evi<lence, I acquit the respondent of the
chai'gtis advanced against him. To mark, however, my
sense of the unwise and imprudent matters that have
most probably given rise to this petition. I direct that
one-half of the gross amount of respondent's costs taxable
against petitit)ners be disallowed, and that petitioners pay
the other half to the respondent.
(5 Jvurnal, Ligis. Aaacm., l(S7l-:^. p. (i.)
I
1871.]
STOHMONT.
•21
STORMONT.
'«».■
Before Chief Ji^stice Richards.
Cornwall, IJth to 17th June, and L2th Si'ptemhir, IS71.
James Bethune, Petitioner, v. William Colquhoun,
Respont^ent.
Pitifion— Prnrtici' — Wiit of E/rrtion — Scrutiny- -QunVijiriitmi — ^fi■^^tah'.
in cntrji of rote r on th<' Roll — Rhjht to Vote — Vaho' of Propi'rtji —
A mi'udinfnt —A Ui-uk.
Held, I. — Tliat tlie writ of Hlection and Uetum need not be produced or
proved Ijefore any evidence of the election is given.
2. -On a scrutiny the practice is foi the person in a minority torirst place
himself in a majority, and then for the person thus placed in a mi-
nority to strike off his opponent's votes.
3. — The name of the voter being on tlie poll-book is prhn'i Jhcii' evidence
of his right to vote. The party attacking the vote may either call tiie
voter, or offer any other evidence he has on the subject.
4. A voter lieing duly (pialitied in other respects, and liavinghis name on
the roll and jist, l)nt by mistake entered as tenant instead of owner
or occupant, or r'n'f r>'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 : //»/</, that altlioiigh the son was not
merely assesssed for the real but the personal property on the jilace
(his title to the latter being on the same footing as tiie former), he was
not entitled to vote. -John Rdiiiif.t roh-.
y. -Wliere the objection taken was, tliat the voter was not at the time
of the final revision of the Assessment Roll the lion''i Jidi owner occu-
pant or tenant of the property in respect of wliich he voted ; and the
^^oSBlSHBMHIMi
22
PROVINCIAL ELKCTIONS.
A.I)..
'! I li
*!'!
il i
r
1 ,
h
evidence shewed ;i Joiiif occupancy on tlie part of the voter and his
fatlier on hind ratc<l at .'?-4() : //'■/'/, tliatthe notice given did not point
to the ol)jcction that if the parties were joint occupants tliey were
insufficiently rated, and as the ohjection to tlie vote was not jn'operly
■ taken, tlie vote was hehl good. — -0(/v// linkir'i ruti.
I'rhi! learned C. .1. intimated that if the (jl)jeetion had lieen properly
taken, or if the counsel for petitioner (who.se interest it was to sustain
tlie vote) had stated that he was not prejudiced hy the fornl of the
olijeetion, he would have held the vote had. See as to this judgment,
the ease of Dunmn dih'-ji, /losf. |
10. Where the father had made a will in his son's favor, and told the
son if he would woi'k tlu; i)lacc ami su))port the family he wouhl give
it to him, and the entire management remained in the son's hands from
that time, the property' l)eing assessed in lioth names the profits to
i)(^ applied to jjay the ileht due on the place : //'/(/, that as the under-
standing was that the son woiked the ])lace for the support of the
family, and heyond that foi' the lienefit of the estate, which he expected
to possess iindei- his fatiiei''s will, and that he did not hold innnediately
to his own use and hcnelit, and was not entitled to votu. - ./ox/nid
11. -Where the voter had only received a deed of the property oi\ which
he voted on the Kith August, l.ST'*, l)ut pi'evious to tliat date had been
assessed for and paid taxes on the place, hut had not owned it : Hibl,
that not possessing the (|nalitication at the time he was assessed, or at
the linal revision o' the roll, he was not entitled to vote. -JJuiiai a
Cd/ii'i/'x ro/i'.
A ((uestion heing raised in this case as to the sutlicieiicy of the notice
of ohjection that tiie voter was n(jt aetuall}' and //oz/l /iil<- the owner,
tenant or occupant of real projierty within the meaning of Sec. 5 of the
Klection Law of 18()S, the leai-ned C. .1. reniarkeil, "The respondent's
counsel does not say that he is prejudiced liy the way in which the
ohjection is taken ; if he had. F would ])()st])ont^ the consideration of
the ease. It is (jhjeeted that the case of ()wen Baker should he subject
to the same rule, an<l it the (pU'stion had lunm pi'esented to nie in that
view, I think I-siioidd have felt at lilierty to go into the case, giving
time to the petitioner to make further inipiiries, if he thought proper."
The particulars wnuld tliereui)on have liccn amended.
12.- Wlieie the voter had been originally, before 18(5.") or lS(i(i, put upon
the Assessment lloU merely to give him a vote, but bj" a subsecjuent
ari-angement with iiis father, made in 1>(m or ISOti, lie was to support
the father, and ap])ly the rest of the proceeds to his own supjiort :
//</'/, that if he had lieeii put on originally merely for the purpose of
giving a V(jte, ami that was the vote (juestioned, it would liave l)een
bad, i)ut being continued several yi'ars after he really liecame the
occupant for his own beiielit, lie was entitled to vote, though originally
the assessment began in his name merely to (qualify him. liinjinniii
(fort-'n rofi'.
13. Where the voter was the eipiitaljle owner, the deed being taken in
the father's name but tlie son furnishing the money, the father in
occupation with the assent of his son, and the proceeds not divided :
//(III, that being the e(|uitable owner, notwithstanding the deed to the
father, he had the right to vote, //dil, also, that being rated as tenant
instead of owner did not aH'eot his vote. Donald lilair'-i rnti-.
14,- -Where the voter ami his son leased c(U'taiu property, and the lease
was drawn in the son's name alone, and when the crops were reaped
the son claimed they belonged to him solely, the voter owning other
property, but being assessed for this only and voting on it : llihl, that
although he was on the roll and lia4l the necessary (pialilication, but.
not assessed for it, he was not entitled to vote. So iii id I /liH'.s vote.
1
1H71.]
SK'HiMONT.
23
1.'). Wlii-re the voter was the teiiaut of certain property helongiug to his
father-iii-hiw, and before tlie cxpii'atioii of his tenancy tiie father-in-
hiw, with tlie cf)nsi'nt of tiic voter (tlie hitter heing a witness to the-
lease), leased tiie proi)urty to anotlier, tlie voter's lease not expiring:
nntil Xoveniher, and the new lease l)eing made on the "JStli March,
ISTO: //'/'/, tiiat after the surrender hy the lease to which he was a
suhsci'ihing witness, he ceased to be a tenant on the 2Sth of March,
ISTO, and that to entitle liini to vote lie must have tiie i(nalitieation at'
til" tinii! of the final iwision of the assessment roll, though not neces-
sarily at tile time lit; voted, so long as he was still a resident of the
electoral division. .lo<lni<t lliij)' li's mfr.
It). -Wiiere a verbal agreement was made between tiie voter and his
father in .lanuary, l)S7i), and on this agreement the voter from that
time hail exercised control, and took the proceeds to liis own use,
aUliough tlie deed was not executed until September following : Ihli/,
entltlcil to vote. Win. •/. <i'i,//iiii/i r's rofi:
17. Where tiie voter was born in tiie United States, liis parents being
Hritisli-liorn sulijects, his fatlier and grandfather being U. H. Loyalists
and the voter residing nearly all his life in Canada : /fdi/, entitled t<)
vote. — Will. J'/(ir('.'< roll'.
Special report, and observations on making the revised lists of votei's final^
except as to matters subseipient to the revision.
The petition coutaincd I'hai'o'e.s as to illeg-al vote.s, and
claiiucil tlx' scat on a scrutiny t'oi- the det'eated candidate,
Janie.s Bethune. The vote was: Fof I'espondent, 70.') ; for
James Betliune, 700 ; majority for ivspondent, '>.
,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 n<nv to assume that there had not been an
election and return. If it wei-e so, we should probably
have had an appeal long ei-e this showing that fact. T
think the (lictuHi of Willes, J., in the Cin-ciifi ij case reason-
al»le, and it ought to be followed.
Mr. I[((rrm>u 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<ifes,
theie were oidy three which affected the petitioner's
.stdfiis under the statute, and as to them, he was not
])repai'ed to go on ; as to the others, that they did not
charge peisonal knowledge of the coriupt [)iactices by the
petitioner, and in his opinion there must be per,sonal
participation in the coriupt pi-actice by the petitionei- to
<,lis([ualify him.
Richards, ('. J. — 1 do not think he ought to l)e com-
pelled to go on with the first three now.
M7\ H((rri^ini contended that the oinis of proving a
qualification was thrown on the voter, oi-on the j'artv who
wishes to sustain the xote.
Richards, V. J., — I think the voter being on the poll
book is 2^''i>'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 considere<l as settleil by the (,'ourt of
Revision, was the one of value. The (jtheis are open for
investigation on a scrutiny. Vote bad.
Joxcjih E(imoH
WILLIAM P. E.\.M(>X"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<j oti' it. I o-jive
him a privile<i;e of half what we i-aise — the l)ar(.;iun is
verhal. It has been <j;'oing on that way foi- some yeai's.
There was no bargain in partieular made about it. Never
made division of the crop, except when sold. 1 gavt- him
more than half of it. Thei'e never was any bai-yain made
between us. He is the only .son I have. I expect him to
have the place after I die. He has a family. There is no
distinct share agi'eed on between us. He, when the grain
is .s(jld, u'ets better than half of tlu' monev. I u'ive it to
liim, because he does more than half the work. I allow
him to ii'ive in 50 acres of the land. He has no title of it.
That is not cultivated any dittei'ent from the rest. He
does the chief part of the work. We paid the taxes and
did the roud woik between us. I allowed him to <Ave in
the 50 acres to satisfv him. 1 don't know if it was to cfive
him a vote — it mioht have been. I don't recollect its
l)eing talked over for that purpose. The houst; and bai'n
(m that i)art I gave it myself. The gi-ain is all put in the .
same barn — used at the .same time. My .son has three
children. I haw my son and a daughter. He has always
lived with me. I told him when he was mai'i'ied he
could l)ring his wife there, and remain with me. He ex-
pects, of couise, to get all my property. This ai'i-angement
continued since he was married. He has a j^art of the
house considered his own, lait we all eat together. When
anything is .sold he receives a })art of it. The pi'actice has'
grown up between us since he was married, to give him a
share of the proceeds, and that has taken j)lac(^ every year
since he was married. He still hands me the money, and
I gi\'.> 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,^<t,:''l : His propoi'tion is more or less, as the-
grain will sell. We can't divide the grain — we thvide the
I
l,S7l.] STOHMONT. 27
uioni'V. I "eiifiallv iiivf liiiii iiioic tliaii haU". Ilf has
not half cvor siiirc lif was uianitMl. \\\' keep no accounts.
I just han<le<l liini what I ha<l a iiiiiid to, and that was
the onlv ariiuin<'iin'iit, ami he was satisfied. He had no
writini^' to liim made out. If he was not satisfied with
what I i^ave him, hi' eould not com|»el uie to ^/ivv him any
more. I did not intend ti make any ai'i-augemeiit with
him so that he could compel me to nivc him any share.
If we .should at any time di.sa^^^ree, I could turn him out
at any time. He has no liyht to lemain theii-. I am
'master myself.
It api)eait'il in this case that the assessmeiit roll showed
hoth father and son rated for the land, two ([Uai'ter lots.
On the voters' list the father was rated for one ([uai'ter,
the .son foi' the otlier.
i'//'. Cdiiirruii contended that the vote was <food, and
cited the As.sessment Act <jf l<S(t<S-(), sec. 27, Election Act
liSdS-!), sec. •"), suh-sec. 2, followed 1)y the interpi'etation
of the ti'rm "occupant," .sec. (), sub-sec. 2.
Kkju.vkDS, v. J. — The rule applicable to this case, and
which I thiid< is in accoi'dance with the view of the rota
judges, is that when the father and son li\e to<;'ether
on the father's farm, the father lieini;' in fact the prin-
cipal, as in this case, to whom moneys are ])aiil over,
and who disti'iltutes them as he thinks ))roper, and the son
has no agreement or understanding binding on tlu! father,
t'ithei' to comitel him to gi\'e him a .share of the proceeds
of the fai'm, or to allow him to cultivate a share of the
land, anil he merely i'ecei\-es what he gets fi'om the father's
Sv'nse of justice and right, that then the son has not such
an interest as (jualifies him to vote tnider the election law.
ROliEUT lU'IJ.oCKS VOTE.
Rohnt Knii/hf L'a//vi/,\ called on the vote of Iiolirrt
IhiJIick : Robei't Bullock is my son. I own Lot No. 8 in
1st Con., Osnabruck. I have owned it 'M) years and
upwards. I have been in possession of it, and am still in
possession of it. My son Robert was born on the land.
mmmmmmm
2«
I'HOVINCIAF, EI,E(TIONS.
[A.D.
He lirts not always Ix-eii tlu'iv with mo. He 1ms boon with
nio till' last four yoais. Ho oeonpios the mill on tho wo.st
part of tho lot. I own tho mill. My son inns tho mill for
his honetit and miiio. Tlioro is only a vorliai ajifroomont
botwoen us about it. It was mado four A'oars aijo. The
agreement was that ho should havo a fair proportion —
whatever was considered as fair. 1 think tho a<rroement
was made in presence of tho wholo of the family. He
keeps the accounts. Wo havo novt'i- ha<l a sottloment.
He had all he recpiirod. Ho eharij;o(l himself with what lie
took. Cannot .say what he chari^n-d him.soif tho last four
year.s. Ho handed over tho ]>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<l on in my
name and his. Tho invoices are •••enerally mado out in
the name of K. K. liullock. 1 have soon some mado out
in his name. He lives at my house, with the rest of the
family. The agreement was to last as long as it suited
him and mo. I think ho has kept more than was reason-
able to clothe him and furnish pocket moiii^y. We have
had lo.s.sos in the business. Ho gave no iiumt-y towards
them, but was more moderate in what ho drew. He is not
married. I cannot toll what h(> 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
l<lll,.
:{()
I'HOVINCIAI. i;i,i:( TloNs.
[A.I..
haviji^f nil interest in the laiiil. HulIocU siiys, 1 iindcr.stooil
vvr Well' to lie |)iirtiR'is ill till' milling- luisincss uiulri' this
ui'i'an^'cniciit, and lie was to liavc a fair jjiopoition of tlii'
profits. I, tlu'it't'oic, think this \-otr ^ood.
.KHIX liANKV's V(»Ti;. ^
.John llaniji, calh-d as to his own vote ; I voted in
Storniont as the owner oj" the cast halt' oi' twenty-live, in
the third eoncession, Koxhoionuli. My tatlier owns it ; I
have no titk- oi- h'ase of it ; I Ii\c on it ; have lived on it
eii;-hteen oi- tweiitv Veais Father lives on it with nie.
We lioth live in the same house. I was mai'ried aliout two
years ae-o. Father lias told nie he would ifive it to nie.
Ho lias otfei'ed me a deed of half the lot. Mothei' is dead.
I have a sister livinij' ; mv sister inanau'i'd the hon.seliold
until I was iiiai'rie(l. My father is ahout ; eveiity. J always
remained there with him. I thought he would giv(! it to
me. N(j writing Itetween us. I have remaine<l in tlu^ ex-
pectation of getting the whole when he dies.
Crinoi'fiaininc I : My father is not a!)l(.! to work. We
live together. He said he would u'ive nie a deed of half
at any time, and that the whole place was foi- me. Aly
brothel- left five yt'ars sinci* or more ; he i.s younger than
1. There ai'e a hundred acres in the lot, tliirty-iive oi'
forty aci'es ch.'ared. I sell if 1 am tliere; he sells if he is
there, i do jiretty niucli all the bu.sines.s. When he sells
uraiu he e-ets all the inonev. 1 am relyinu' on wliat ho
said tu me in staying with him. It has been assessed to
me eiu'lit or nine years ; soiiietiines my father, and some-
times 1 myself give it in. Fatlier pays if he is there Avhen
the assessor comes ; and when 1 am there, 1 pay. I keep
the store account in my name and pay the necessaries for
the house. He directs the place to be assessed in my
name. I don't knoNV who is master of the house ; wo are
both there ; lie built it. I consider I ought to obey his
orders as a son ouglit to do tow^ards his parent. 1 tell liim
what 1 do with regard to the imsiness of the place. One
of the horses I bouglit this w- inter I claim. My sister and
lii' '
i
li"
i i
; )
M
[A.I..
IH7I.]
SToHMdNT.
31
sister's daii^'litcr cliiim most of tlir lioriicil cattle Wlini
I sell anytliiiiir. I fdiisult liiiii if In- is tlit-r*' ; if not tlicir,
I sell Jill. I tell him. 'I'hr cattlr iiiv asscsscil in my name -
cvt'iytliiii^^ My fatlit-r. wlu-ii alilc ufts alioiit ami sees to
oilil tilings aliuiit the li misc, !>ut 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<j;reenient witli his
father, and cited MrDuiKihl v. JliKr, 17 (Jrant, ().")7.
KK'H.xkds, ('. J. — ^This case has much in it to shew
a kind of occujiancy <listinct from thw father, and if the
father had )'eceive<l from him a cei'tain share, or 1h' him-
self a certain shai'e, or there hail heen an aixreement
between them, either expressed or implied, that he should
receive the jnotits of the place, and the fatliei' liveil with
him, it miLrht have heen ditt'erent. But the case .seems to
me, to he reallv that of a man and some of his unmarried
children and ^^frand-childi'en livini^- toi-'ether cii f(imHh\
the hard work heiiijr done hy the youn^'ei' branches who
are able to work, the old man not beinii' able to do so, but
in fact being- the head of the family nevertheless. It is
tr\ie the [)lace is assessed in the name of the sou, Init so
were the cattle and other loo.se pro])erty, as I miderstaiid
from the witness, and he did not claim to own them. On
the whole, I think this vote bad.
OWEN HAKEU'S VOTE.
Oiom Biker, called as to his own vote. The evidence
was very similar to tliat in the case of Rijbert Bullock.
It appeared on the evidence of the voter that he and
his elder brother had entered into an agreement with their
IP
^KMMM<
.'12
IM«»VINTIAI. i:|.i:( TloNS.
[A.F).
I'atlu'r. that tlirv wcic to ciirrv on liis (the fatlu'r's) iiicr-
cantilc liii.siiu's.s in tin- villatrc of Ault.svilU' for tlircr; yi'iirs,
till' sons to li'avc tilt' Itusint'SH at tlw ('X[)iration of that
time in as <joo(l conilition as when thcv coiunifnccd — tlio
Jtons to liavi' all the profit. Shortly aftt'r the nj,'rooniont
the eltk'r hrotlu-r Irft tlu' country, and tho voter continucil
to carry on the husincss with the aid of Ids father, 'i'he
voter was asses.sed on ten aci'es of the farm (one hun<lred
acres) which was niaiia;fed in the .same manner as the
mercantile part of the concern. The Itooks were ki'jit and
purchases made in thi' fathers name, who could also sell
what he plea.scd out of the concern, or the produce of the
farm.
On cross-cxandnation he stated that he thought his
father could not comix'l him to leave, if he was unwilling.
Iiefore the ex[)iration ui the th)-ee years. When the agree-
ment was entered into stock was taken. The .son could
sell a team if lie thcjught tit without speaking to hi.s
father ahout it, coidd .sell stock as he pleased. an<l appro-
priate the money. The ten acres was worth about $'iO an
acre.
Sinicnn Bdhrr, the father of the voter Owen Baker-
The assessment oi\ the roll for the son was ten acres,
value .^^^O. He was entered as freeholder. Was not certain
if he gave it in as occu{iant. No one lived on the farm,
but the son worked it. Had pi'omised the interest of it
for three years. The understanding with the son was, \\v
was to keep it as good as when they started. Woidd
considei' it wi-oiig to take S2() out of the produce of the
farm, but could do it if hi' thought [iroper. Could buy
and sell in the store, but could not .say that he conld take
anything without tlie son's leave. The ten acres was con-
sidered sulficii'iit rating to give the son a, vote. There was .
no agreement in writing as to the land or anything else.
On cros.s-examination this witness stated that the object .
in making the arrangement was to benefit the son; he
was working in Matilda, and the witness wanted him and
his brother at home. They thought of going West, which .
%
^l^-f
IN7I 1
S'lOIlMONT.
33
n'
;ree-
DUld
his
111', tlif fiillifr, ilifl not (It'sii'c. 'I'licy took up the luisiticss
on the iirnin^t'iiictit lliiit tlu-y wvvv. to have all the profits
for tlircf vars — tin' stock to he i-ctuiiird ft) witness as
P()(«l as wlii'ii lluv (•DiiiiiK'ncciJ tln' personal cxix-nscs of
tlu' witnrxs t(t lie the saiin- us tin- rest of tlic family.
Mr. Ciiiinrnii olijrctrd that tlir voter lia<l lio interest in
the lan<l. ijr was not a .joint occupant with the fatliei-
un<l if lie w fi'e, the j.'ssessiueut was not suflicieiit in amount
to qualify for liotli. Election Act, IS»!S-!». ,sec. .'>, 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<l : " List of
voteis who voted foi* the petitioner at the said <'lection'
ohJeete(l to oil the ground that they were not, at the time
of tiie final revision of the assessment roll in which their
names appear, ami on which tlie i'es[)ecti\'e \'oters' lists
were hased, the h(,,,,l fulr owners, occupants, or tenants
rosjiectively of the property in respect of which they wer(>
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 ohJecti<jn, that if the parties were
joint occuiiants, they were insuiKciently rated to (pialify
the \()tei'. I therefoi'e hold this vote good, on the gj-ound
that the ohjection taken does not point to the real dilK-
culty, viz., the joint interest being- insufi^ieient. But if the
objection had been properly taken, ov if the counsel for the
petitioner (whose interest it was to sustain the vote) had
3
: I
•:ji.'^;.iifM\M
gmn
34
PROVINCIAL ELECTIONS.
[a.d.
ij fj
;• (!i'
jiill
stated tliat lie was not prejudiced by the form of the
objection, I would have held the vote bad. (See Cahcy's
vote, 2^ost.)
JOSHUA AVEORT'S VOTE.
Jonhiia Wcort, called as to his own vote : I live on part
of 16, in 7th Concession (jf Osnabruck ; my father lives
with me. I have no lease or deed. He made his will to
me last Januarv- Some .seven vears ay;o mv father told
me if 1 wcnild stay and reclaim the place and support him
and my mother and my sister, and if I worked the place,
he would give it to me. I did woi'k th' place, but made
very little out of it. It was pretty wt'l I'un down; and
so involved, that the loose pi'operty would not come near
paying the demands. I woiked on and made Uioney, and
redeemed the place, and father made a will in my favor in
January la; t. I am mai-ried ; have been four years. My
wife and all live together in the same house. 1 think niv
father is about 77.
Cross-examined : I was to have the use of the place in
the meantime. From that time I have had the use of the
place just as I liked ; used it as my own ; conti-acted and
paid all debts as my owr — I have used the place just as
if I had had a deed of it for the last four years. He thi'U
became so old that he could not assist me. He has not
been able to do anything of any value. I bought and sold
stock on my own responsibility. There was some stock
on the place when I went on ; it was miderstood it was to
be mine if I paid off the debts. 1 have paid off between
four and five ' inulred dollars. There was a change in
matters after chat ; I became the master thei'e, and he
consented to it. ]\Iy father used to ap])ly to me for money
within the last two or tliree voars. I am manau:intjf this
business as my own, on my own account, aufl for my
benefit, and that is the unilerstanding between us. I pre-
sume it is so generally understood in the neighborhood.
It is assessed, for four or live years last, in the name of
myself and my father ; the cattle all assessed in his name.
1871.]
STOUMOXT.
35
Er-(\ramt>ii:(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
nia<le was to go to pay ott" the delits ; they are not wholly
paid yet. I l.ad confidence in my father that he would
will it to me, and did not make any agreement as to what
J would have in the event of his not willing it to me.
Richards, C. J. — The ai-rangement is, in fact, such
as shows the use and occupation for the benefit of th(!
estate in paying ofi' the debt. I consider that the real
uiKlerstandinu' is, that the voter works for the benefit of the
estate, and beyond what is used in supporting the famih'
is to go to that purpose. If he had had a right to it for
his own l)eneHt, it would be possessed for his own u.se and
benefit. What he leally works for, and the profit of the
estate goes to, is his expected possession of his fathers
estate under his will. I think this vote bad.
DUNCAN CAflEYS VOTE.
Duncan dihri/, called as to his own vote: I live in Rox-
boi'ough, 1st Con., part of 17 and 18. My father's name
is Edward. My father lives on the lot; has lived there 80
years; owns part of it. 1 own the south part of west
half of 17. 1 have a deed for it; I have it with me: I
got it last August, the day it was dated; its date is the
Kith August, 1870. I did not own the lot until I got the
deed. I had no claim to it before that. 1 voted at the
election ; I am called McCaliey. I don't own any other
pi'operty ; the propei'ty has been assessed in my name for
the last 5 or (5 years. My father is over 70. 1 have
generally paid tlie taxes.
Mr. Harrison. — This man is not a voti-r within the
meaning of section o of the Electitm Act l8().S-f). He is
not rated for the lot — if he Avas, he is not a voter under
the section. The true meaning wf the section is, that he
was so possessed at the time of assessment. See the form
of oath to be administered to voter under section 41 of
the Act.
'■''<<^smimitmt«mimimm:mm»«^^
«)»»!»»**Jl»»*fcAMr-c*^4«iM«||ia*
36
PROVINCIAL ELECTIONS.
[A.D.
'U
i
'>fi(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<SG(i) merely I'or the purpose of giving a vote, and
that was the vote (luestioned, I should pi-obably hold it
1>, ^ ; 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, 1<S70.
On ci'oss-examination he said that it was ay:reed at the
time of the lease to Stewart that the father-in-law .shoidd
pay him, the voter, the increased rent, Avhich he <lid.
RiCHAHDS, C. J. — I think after the surrender l>y 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<l and property I
piomiscd him, and the cattle, and I went to the 7th Con-
cession. Until he got tin; deed it was luidei'stood he was
to go and work the farm — the east half of .'U — if ht
should think propei-. I was to give him a span of horses,
\\aggon, harrow, foin- cows, six sheep, four hogs, and
two pigs, and he was to have one half of th'i house furni-
ture. He was to have these at any time he wanted. This
was to be done at the same time with the deed, and at the
time of the deed I did give them to him ; he went on
then under these terms, and went to work. He never
said he wanted them until Septend)ei". He took possession
of them in January — of the horses and cattle, and these
things. We never drove them oft'. I pointed out the four
cows and the horses, and he took possession of them then.
He was to get six sheep out of the Hock. He was to have
four of the hogs in the fall. He attended to these horses
himself, and my son to the othei- teaiu. He gi'oomed and
fed them as his own. I said to him in the spring, if he
would help us to put in a crop in the other land, we would
help him ; he agreed to do so, and we went and did it.
There is only one barn on 31 ; it was on his part. There
MM!
SZB
42
PROVINCIAL ELECTIONS.
[A.D,
ttiM,,
"..i
I' \l
were no crops to mine ; the stuff was put into the barn on
the place as bc^t'ore. He took control of it after, and iisetl
it. I had nothing to do with it after. I did not take any-
thing off the place since or before.
Richards, C J. — T think this vote good, according to
the rule we have acted on.
WILLIAM place's VOTE.
Williaid P}((C(', called as to his own vote. It appeared
from the evidence of the witness that he was infoi'Uied by
his mother he was born in Ogdensburgh, in the Uniteil
States. Both father and mothei* were born in (Canada.
He left Ogdensbuigh when he was nine months old, came
to (Canada, and had resided in Canada ever since.
F. II. Shnrer, called as to same vote. Witness was cousin
of the voter. Knew him and his family. The voter's
grandfather came oiiiiinallv from the Uniteil States. Drew
land from Goverinnent, as did also votei's father as a
U. E. Loyalist. Understood that the voter was born in
Omlensburgli. The father of the voter moved to Ogdens-
OCT o
burgh about three months before the voter was bc^rn.
Richards, C. J., held the vote good.
The ('Ourt was then adjourned; and on the reassembling
of the C^mrt (1 2th Sept., 1871) it was foinid that botii
parties appeared to have an e(|uality of votes on the
.scrutiny.
The Chiep' Justice thereupon declared the election void,
antl made the following special report on the case :
" I think it my duty to make a special report in relation
to the proceedings before me on the trial of this Election
Petition.
" The trial commenced on Monday, the 12th June, and
continued during the week. A large number of witnesses
was in attendance. It l»ecame necessary to adjourn the
proceedings until the 12th September ; on Avhich day the
Court a£:ain met at Cornwall.
" Innnediately after the opening of the Court it was
admitted that [three votes] were bad, and should be struck
roi<l,
1H71.] STOHMONT. •i"?
otf'froiii the votes polled foi' Mr. Betlmne; iiiakin-,' on the
wiiole 40 votes that had to he struck ofi' from the 700 who
voted for Mr. Betlmne, leaving- for him 000 vote.s. Ami
Mr. (A)l(Hilioun's votes numbei-ed 70.'), and tliere have been
struck off of the.su 4.5 as had votes, showing (i()0 votes foi-
him, thus leaving an e(iuality of votes: and the parties
ax-reed not to nroeiHMl further with the sci'utiny.
" The charge of c(jrrui)t practices against the petitioner
was ahandoned, and no such ehaige was made against the
i'esi)onilent in tlu; jx'tition. The petitioner then offered
himself for personal e.Kamination as to corrupt practices.
1 did not see any reason for examining petitioner or
lespimdent.
" Both petitioner and respondent agreed that it was best
for IIk' interest of all parties that the case should be dis-
posed of by my detei'mining the election void, as was
proper to do when there was an ecjuality of votes. (1 Roe,
!S04 ; 1 Peckwell, .')04 ; Chand)ers' ])ictionary of Elec-
tions, 228).
"The numl)er of votes to be in([uired into on either
side on the objection taken to tliem, was great, the wit-
nesses were very numerous, and the expense of their
attendance such that l)otli parties felt that it would be
less burd(,'nsome to them.selves, and the electors even t(j
have a new election than to continue that inciuiiy, wliich
would likely be procrastinated for two weeks.
" I was not prepared to dissent from these views, and
saw no reason why the parties should not be allowed to
carry them out.
" Neither of the pai'ties asked foi- the costs of these pro-
ceedings.
" I adjudged and returned that there was an equality of
votes as between the petitioner and the respondent.
"It was agreed between the parties that a new writ
might be issued by the House, and T finally determined,
as already reported, that the said William Colquhoun was
not duly elected, in this that it then apj^eared there was
--t»'''
fT?
•m^^
i ,
ll
f .
u
t
r''» ,
44
J'UOVINtlAL ELECTIONS.
[a. I).
an equality of votes between him and tlie said petitioner,
and tli(!i(!t'()iv tlie said election was void.
" 1 would i'e.s})ectt'ully submit t'oi' the considei'ation of
the Legislature whethei' the law should not he so anieiidcsd
that the certified List of Voters, after it lias been tinally
revi.sed, .should be considered as establi.shing the right of
the elector to vote, at the tiuie of the ivvision ; and that
the only matter, as to the right of the elector t(j vote,
that should be inciuired into before the Rota Judges, on a
scrutiny, should be such as might arise aftei- the tiling of
the Revised List (jf Votei's. Antl if it is thought the pre-
sent mode of revising the list is not the best foi" pre-
venting fraud, that some other UK^de .should be devised by
the Legislature in their wisdom foi- that piu'pose.
"The present system of in\estigating the (pialiticaiion
of voters on a scrutiny befoie the Court is I'uinously
expensive to the oarties, and niaj' be very inconvenient to
the electors who are required to attend the Court foi- that
purpose.
"In conseijuenci' of the iiKpiiry being miuU\ at one
place as to all the disputed votes that have been polled at
the election, it becomes necessary for a great many of the
electors to attend so that the trial may not be delayed for
want of witnesses, and of course, nnich time is lost in con-
sequence.
" Whereas the Court liefore which the revision of the list
is to l)c had, might avoid the inconvenience by regulating
its sittings as to the season of the year, and fixing of the
days on which the Voters' List of any j)articular town-
ship, or division, was to be revised ; and in this way
would i-ecjuire only the attendance of a few persons, and
at a time and at the season most favorable for them."
(5 Journal Lcgis. Asscm., 1871-2, p. 6.)
[A.l>.
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<ilii)ii — Ifiriiiij of Taiiii.'i hi/
A (/( iiU.
The n!.spmi<leiit, mi the oponiii.t; of the case, cliar<j;»'(l that the petitioner
was ai'aiiiliilatu at the election, and an sucli candiihite was j,'uilty of
ciiiTupt pi-utices, and tlien-fore dis(|iialili('d to he a petitioner. Tlie
Ciiicf .liistice, \\ithont (h'cidini,' whetlier the respondent iiad the rij,dit
to attaet; th(^ (pialilii'ation of tli<! petitioner, aUowed the evidence to
ho given, hut //'/'/ the .same to he in.siithcient.
On tiie ailnii.s.sion of tlie respondent's eoun.sel the election was avoided,
on tlie f,'rouiid that agents of the respondent had, dui'ing tiie election,
hiied and }iaid for teams to convey voters to the polls.
Tlic petition contained the nsual allegation.'^ of hribery>
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<late. Lcii/h and Lr Marchan/\s Election, Law, 102. A
bi'ibed votei' is dis((ualiHed by Common Law. A party dis-
((Ualitied by .statute from being electcid is not disqualified
from petitioning as a candidate. If the application ncnv
made hail a])plied to the petitioner as a voter, the peti-
tioner might have asked that some one else should
he allowed to petition, or be substituted. The charge is
against the petitioner as a candidate, and the statute
works no dis([ualification as such.
fS.1,
'-m
jOTpf'
au
m
40
l'|{(»VIN(IAh i:i,K(TI<)NS.
[a.d-
!
|m„,.
j
IllcilAKDs ,). C. -I ilo iiut i'l'cl (lisposod U) dccido on
tln' narrow ifi'<)un<I tliut u \)iuty iiiuy Ix' tiunlilicd Jis a
cainliilatt' who is incupuMf of lioin^' t'lcctcil. I tluTet'oro
prctV-r nisorvin;,' this (|U('stion to (U'citlin;,' it a^'ainst the
I'fsponflt'nt. If the iM'titioiitT n'(|uir('s tinio to moot thosu
char^^os. s(t suihlcnly Itroii^^ht aj^ainst him, I will piohahly
^\\i' him t'uithoi' tinu".
l<]viilonoi' was thon n'ivon on the c'liai'<^'o of hrihery
a;;ainst the prtitioufi', after which,
Tlie ('IIIKF JrsTlcK held that tho ovidonco faikid to
ostablish the (•liaii,'('.
CounhL'l for till' petitioner then {)r()[)osed to addiico
e\ iclenco that tlie a;^a'nts of the i'es[)ondent had i)aid for
C'onvoyin"^ voters to the polls.
(lonnsel for the res[)ondent a<hiiitted that the hiiinLf of
teams liy a^ft-nts of the i'es])ondt'nt, to ec^nvey voters to
the polN. had taken i)lace dmiiii;' the election without the
knowledi(e of the I'espondent. The respondent M'as tl\on
examined, and i)ro\i'(l that he liad no personal paitici-
pation in snch or any other illegal acts. At tlie conclusion
of his evidence judgment was given as follows:
RicHAuns, G. J. — I am of opinion that the corrupt
practices relied on hy the petitioner, as above stated, and
admitted by the respondent, ar(> 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.'<i.iiidrnt in person, Mr. C. E. Hiiinilton, and Mr.
A. ('. /////, for res[)ondent.
'i'lie evidence art'ecting the charees on which the learned
Judg ' gave judgini'iit, was a.s follows :
tiylcedcr Ncelon : [ live at St. Catharines. Am a voter
in Welland. I canvas.sed for Mr. Currie at the last elec-
tion. To the best of my knowledoe I received a note from
Mr. Curiie asking nn^ to .solicit a couple of persons to vote
for him. I si)ent no money on account of the election.
1 went into a tavern at Port Colborne on polling day. 1
caimot give the nanu> 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<l that Mr. Currie would not spend a cent. The way I
came to oftl/r (}all»raith money was, he .said he guessed he
could not vote as the other side had pi-omised him 820. I
told liim to comt^ along and it would l)e all right. The
per.sons named \oted foi' C-urrie.
\'/illi(im 0. Cuvjitn, rrrallcd : Eddy met me. on the
street ami toM me of the thi-ee men ; he said they could
he got. I merely told Eildy that he might tell the three
men mentioned l)y him that if they would vote they .should
have money if we gcjt any money. I did this on my own.
heludf.
Jniiiifi }[iiiiri) : I live at Thoi'old, and voted for Mr.
Curi'ie. I was a member of the ctjnvention which brouglit
out Mi\ Curi'ie. Theiv were evening meetings at my store
of the fi'ieiids of Mr. C'n-rie, with a view to pi'omote his
election. Mr. Cowan was at these meeting.s. I thiidv it very
likely something was said about expenses. There was no
expen<liture of money to my knowledge. I saw Mr.
(yurrrie at Thorold at a [)ublie meeting in the drill .shed.
I canvassetl a little. I don't think there were more than,
two or three meetings at my st(ji'e. 1 stood at the {loll at
ThuroM ; I had no autliority from Mi-. C'uri'ie.
Cr().'>-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<lenee of Neelon and Eddy,
there was ntjtliing to affect the election. 'I'he ([Uestions
WW
' I I
If
llllR :)tl
! 'r "• "
"Ill-
50
PROVINCIAL ELECTIONS.
[A.D.
to be considered were whether agency had been proved,
and secondly, whetlier the acts of the supposed agents
liad been such as would avoid the election. He thought
it would be fair and proper that the petition should be
proceeded with no further.
The Vice-Chancellor. — " That amounts to withdraw-
ing the petition, and I see by the Act I have jurisdiction
to allow that." In giving judgment, the learned Judge
said there had l)een no sufficient proof of agency, and re-
ferred to the Wi'fitininstcr cane in England (1 O'M. & H.,
<S9), and to the dictum of the Judge who tried the case, to
the ett'ect that some recognition by the candidate of a
voluntai-y agent's services must be proved. He held that
here agency had not been proved. The treating by Neelon
he held did not come within the Act ; it was evidently
<lone in compliance with a custom prevalent in the country
when friends meet. There must be, in cases under the
Election Law, a corrupt intent shown in order to aflect
the election. One glass of li(]uo]", as had been said in
England, given with a view of influencing a vote, would
avoid the election.
The petition was dismissed, and, by consent of the
respondent, without costs, as he had subpcfnaed no
Avitnesses.
{o Journal LcijU. Assem., 1871-2, p, 12.)
S
~?l
NORTH SIMCOE.
Before Mr. Vice-chancellor Strong.
Bakrie, liJth (ictohin-, 1S71.
Jonathan Sissons, Petitioner, v. William D. Ardagh,
Respondent.
Ilirmij Ra'dwcty Train to conn y Vot< rs to the Elidion — Aijcncy —
Hi criminatory Ca,«>.
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. //'/</, that this did not
make him ]iersonally a pai'ty within 34 Vic, cap. 3, sec. 4(i, to every
illegal ai>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 ha<l been so entrusted
to the agent, tlie pi'esumption of a corrupt piu'pose might have been
reasonabli'.
When a candidate ])uts money into the hands of Ids agent, and exercises
no sujiervision over the way in which tiie agent is sjiending that
money, but accredits and trusts him, and leaves him the power of
spending the money, altliougli he may have giv<ui directions that none
of the money should be im])roperly spent, there is such an agency
establislu'd that tiu! candidate is liable to the fullest extent not only
for what that agent may do, but also for what all those whom that
agent emi)loy.s may do.
f'*,-
[A.D.
election,
behalf."
that tl>e
t'ting on
ling' cx-
nir fioni
H) far as
p. 12.)
S71.
William
' to Cluuiiic
for A<l'< of
TrcdtUui —
(I Kk'ctioiKS
itiuMiey the
; putitiou i.s
ling of the
hice within
promoting
l)iil)e, tlio
)V(' a hrilic
)n purpo-ses
"lis dill not
(), to every
ho ret'eived
entrusted
have been
id exoreises
;ndiiig that
le power of
IS tliat none
an ageiiey
nt not only
whoni that
1*^71 ] SOUTH OREV. o:}
The payment of a voter's expenses i going to tiie poll is illegal, as such,
ami a .'.rriipt j.r.ietiee, even though the payment may not iiavt- hceii
intended as a hri'oe.
Tiic distriliiition of s]>irituous 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 respon<leiifs agent, even if the case lie strippe^l of all
other eirciimstaiices, tlie strongest coiielu.sions will he ilrawn again.st
till! rcspoiKk'iit, and every }>resumptioii 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.-</i(//i(/i ,if in pfi'son.
By a inic of ('OUi't the case was tried at Owen Sound,
a })lace not witliin the electoi-al division. [Tpon an ail-
jounniient tlie (piestion was raised whethei- tlic presiiling
Judge could ailjoui'n from Owen Sound to a jjlace witliin
the clectoi-al division, for tlie further liearing of the case.
'I'lif \'l('i:-t'ilAN<'i:id,(»l{ lield that he had no {lowei-
to gi-ant such an adjournment, as hy so doing he would
in cti'fct override a rule of C'ourt.
Offers of liribes were sai<l to have been made to one
Ali-riiiitlcr MiKiflntif and one Janics Blade, who were e.\-
aiiiined as witnesst's. The evidence of both M'as conti'a-
dicted by Mr. Lauder on his own oath. McKechnie had
actively supported the respondent at the pi-evious election
for the riding, ami Mi'. Lauder seemed to have expecteil
a like sujiport from him at the election now in <|Uesti(jn.
In til is expectation Mr. Lauder (accoi'ding to McKechnie's
evidence) asked him to "come into oui' committee to-
night," and added, "we'll furni.sh you \vith plenty of
means." Melvechnie did not go to the committee, and did
not give .Mr. Lau<ler his support. He deposed that he
considereil Mr. Lauder's ob.servation "in the light of brib-
ing" him.
54
PROVINCIAL ELECTIONS.
[A.D.
I IS iii;,'
iiii^
''!' "'■' I
' "'*ll,
James Black deposed that he had heard that Mr. Lauder
had a large sum of money to spend on the election ; that
he applied to Mr. Lauder for some of it ; that he offered
to WQik, if paid ; and tliat he (the witness) said that
money would " do good " in his section ; but he also
deposed that Air. Lauder would not give him any money;
said it would be illegal to do so, and made him no offer.
The witness added that Mr. Lauder told him to " <>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<S71.]
SOrTH (JUEV,
Oi>
Thomas Smith swore that after a meeting held at a tavern
in Egremont, which meeting ha<l been addressed by Mr.
I.auder, he had given a treat for which he paid So ; that
some time after the treat he received 820 from Mr.
Lauder ; that he had paid the §5 at the time the treat
was <nven, and before he r(.'ceived the S20 ; and that the
treat was given on his own responsibility, and Mr. Lauder
was no party to it ; that Mr. Lauder gave the S2() to pay
for the use of the room m which the meeting was held,
foi- his (Mr. Lauder's) own personal expenses at the tavern,
and for icfreshments which luul been furnislied for a
committee wliich held a meeting at the tavern that even-
ing. It was not shown that Mr. Lau<lei' was aware that
Smith had treated when he gave him the i^'20. Smith
also Nwoi'e that he had expended move than 820 for re-
freshments for conuuittee-men, for feed for their horses,
etc., in addition to the 8.') paid for the treat. '
The coi'rupt practices .said to have been conniiitted by
Mr. Laudei-'s agents were chiefly these: 1, biibery ; 2,
ti-eating meetings of electors ; and H, giving spirituous
licjuor dui'ing the polling day.
Li regard to bribery, the principal instances proved
were connnitted by one (ieorge Privat. Piuvat was the
pi'incipal canvasser for Mr. Lauder in that part of the
township of Normanby called the " Old Survey." Privat
was called on by one William Scott and one Charles Grant,
and was either a.sked to go on the committee (foi- securing
Mr. Lauder's election), or was told by Scott that he had
been put on the connnittee. The former was his own re-
collection, the lattei' was Grant's recollection of what had
occurred. He sent word to Dui'ham 1)y these jier.sons
" that it would take 8100 to work up the Old Survey."
Li reply, he was told that so nuich could not be given.
He was told also to go to one M(;ddaugh, whom he knew.
He went to Meddaugh accordingly, and at Meddaugh's
instance Mr. Perry gave him 8')0. Privat " was not told
what he was to do with the money," but he received it
" to spend on the election." He went into the canvass.
■f
"i'lli,
' 'Mil
u
■■''.
;
f
>.'•'■
¥\
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
<lrop[KMl the money instead of handing it to tlie votei-, he-
cause h(! imagined tliat tliis indirect mode would enable
the voter, if swoi-n, to say tliat he had received no money.
Meddaugh, to w]u)m lie 7'eferred Pi'ivat as to money, was
anothei- member of the centi-al conuuittee. Perry, who
gave Privat the money, was a distant relation of Mr.
Ijatii^ei-'s ; he was the .secretary of the ci'ntral connnittee ;
kept all accounts ; was the treasurer for the contest, and
recei\'e(l fi-oni Mi'. Lauder, an<l disbursed most of the funds
which Ml. Lauder from time to time supplied for the pur-
poses of th(! election. Mr. Lauder stateil in his e\idencc
that ho had " refused to have anything to <lo with com-
mittees " The only instructions which he appeared to
have given witli reference to the expenditure of the money
were tho.se implied in his forbidding any treating, hiring
of teams, or paying for votes. Tw(j of these \oters wen;
examined, and proved the finding of the mcmey which
Privat had dropj)ed. Prixat stated that he had some talk
with the N'oters referred to about their doing some plough-
ing for him.
[The Vice-Chancellor considered that if tliis part of
liis evidence was correct, the suggestion about plougliing
\vas, like the di'opping of the money, a colorable pretence
by wdiich it was intendeil to evade the law.]
WUliiini Scott, who solicited Privat to take part in the
active work of the election, was a member of the central
committee. He " went round to the different places and
brought in returns, sometimes written and sometimes
verbal, of liow the other committees were getting on."
IN7I.1
SOl'TH OHEY.
.-.7
Mi: Irrn/ \v.iu\ out al .out -SI ,700 for tlic i.uvpo.scs of tho
rlcction, nnd i\\'w th*' eU'ctiou ho flainu'd eiv(lit for that
amount from Mf. I.audcr. Mr. Lauder allowed and settled
.S(;2-') only, liut ol.jeete<l to the balance as unneces.sarily
spent (not, he said, as iileoally sj.ent), and had not yet
jiaid it. Perry swore that he, not\vithsta)idin<,s e.xpeeted
to he ])aid, thouj^h he had not yet recei\'ed any promise
to that cti'trt.
It .•ipjx'iiicd thiit the letters and accounts with leferenee
to till- election had heen destroyed. Mr. Lauder stated
that he had <lestroyed all the letters written to him, and
had kept no copies of the letters written by him, in which
leference was made to money matters; and Perry swoi'e
that he had destroyed all papers connected with the elec-
tion about ten days after it took place, including- a list of
the members of the centi'al counnittee, a recoid of their
])rocee(lings, and an account of moneys expended.
After the ai-gument of Counsel on the pei-sonal charges
of bi'iliery against the respondent, the following- judgment
was delivered :
McnvAT, V.-C. — I am .satisfied that no case has l)oen
made out against Mi'. Lauder jiersonally.
With regard to the Orange Hall meeting, tlie weight of
evidence goes to show that it was a meeting of couunittees ;
and besides, no refreshments for the meeting wei'c ordered
or furni.shed by Mi'. Lauder, or paid for, or promised to be
iiaid for, by him. 1 do not think that reasonable refresh-
ments furnished bond fulc. to coninuttees are illeii'al.
As to the alleged treating at Normanl)y, Smith's evi-
dence is unsatisfactory, but there is no ground for believ-
ing that Mr. Lauder knew that Snnth had treated when
he gave him the money.
The case of McKechnie, as stated by him.self, is not
sufficient to prove Mr. Lauder guilty. McKechnie states
that Mr. Laudei' said, " come over to our counnittee to-
night, and you shall be furnished with plenty of means,"
wm
58
I'HOVIN'CUAI. ELECTIONS.
[a. I).
jilii'lM'''
I'l' ,.,
■"HI,;
aiul McKcclinic swears tliat lio cotisidored this an oflTiM' of
a hi'ibe to Iiiiii. He did not <,'() to the nieetinj^, and no
otliei" conversation on this point tool< plaee. Now, whore
the diarize is only tlie nnaceepted otl'er of a l)i'il)e, tlie
evidence nmst be more exact than is re(|uiri'd to pi'ovo a
bribe actually j^dven or accejited. A very little dirt'erenco
in the Ian<fuat(e employed mi<^ht make a f^reat difference!
in the intention of tliesui>[)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<l the expenditure,
and that his failure to do so makes him pei'sonally a party
within section 4;] of the Act of 1871 (34 Vic, c. 8) to
every illegal application of money by Perry, or by those
who received money from Perry. The sum which Mr.
Lautler gave was under 8700 ; there is no evidence before
me that that sum was an excessive one for legitimate
expenses; and a certain amount of discretion must be
placed in a candidate's agents. If he had put 87,000 into
Perry's hands, the argument of a corrupt purpose might
have been reasonable. The facts do not suggest to my
mind any idea that Mi. Lauder intended his money to be
employed illegally.
[A.D.
of fur of
, and no
J, Vvlu!I-(i
•i1)(% tlic
|)rov(; it
illiTcnt'o
iH'cr'oncc
jiivcrsii-
iii't' not,
olection,
I am not
1 fnrnish
Kt'clniie.
lount ot"
t'oi" soMie.
me to ,i;'o
neither
svould be
that Mr.
le money
Iniie and
sums to
enditure,
{ a party
, c. 8) to
hy those
hich Mr.
ce before
Qgitimato
must l)e
•,000 into
)se might
st to \\\y
ney to be
IS7I.]
SOUTH UUEY.
of>
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 ju<lgment was given as follows :
MowAT. V. C. — I may dispose of this case on the ground
of the illtgality of Privates aets. He was asked by Scott
to assist in the canvass, and was r(;fei're<l to Diu-ham for
money- He went there, ami got the money from Perry,
throunh the intervention of .Meddaugh. These three per-
sons wei'e the members of, or eoiiuected with, tlie com-
mittee at Dui'ham. Mr. Lau<ler argues that it does not
appear that Peiry jiaid the mniiey with the concurrence
(»f the ciiinmittee ; but there is no evidt'uce that Mi'.
l>au(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 evi<lence distinctly repudiated all
counnittees, and stated that lu' had made his paymeiits
throu'-'h Periv. But even if Pei-rv had been directed to
carry out the instructions of the connnittee, and had dis-
obeyeil, he being the treasurer for the election, the secre-
tary of the committee, and the eontidential agent of the
candidate, his acts would still bind the candidate. This
is laid <lown in the St<ilei/1>ih((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<ls of his agent, and that he exer-
cised no .supei'visiou over the way in wduch that agent
was spending that money ; that he had given him direc-
tions, and I thought .really intended, that none of that
money should be impi-operly .«pent ; but that he had
accredited and trusted his agent, and left him the power
of spending the money, and I came to the conclusion upon
that, that there was such an agency established as that the
WW
'■"'fm
(10
l'l«>\ 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-
])en<liture, and afterwards say that he did not authorize
the iiiodr ill which the money had Keen spent, claim
freedom fi-(»ni responsihility in respect of the use made of
it, and tlius evade the whole law against e()rru{)t ])ractices.
1 cannot h(»ld otherwise in this instance (in wliieh there
is no dispute as to the facts) than that Mr. Ijauder is re-
.sponsihle tor tlie nets of l*ri\at.
As to these acts : Privat talked to certain voters alxnit
the election, and <li'opped tlie money i'or tliem, so (as lie
e.\])lains it) that thev miulii lie ahle to swear that thev had
received mo money. To constitut<' the otfence, it is not
necessary that \otei's should acct'pt an ottered hrihe. Tlu;
two voters called confirm all tliat was necessary in I'rivat's
evidence to make out the charge against him. His pur-
pose was to secure the votes by means of tliis mono}'. I
have no alternative hut to hold tluit Privat has beou
guilty <jf such acts as agent as i-ender the election void.
So far the ca.se is frei; from doubt.
As to .souk; other points, it may be proper tliat, for the
information of parties conceiMietl, I should intinuite the
inii)re.ssion 1 liave formed.
As to Ray, 1 do not consich^r the .S2 given to him to
have been a bribe, as distinguished from a payment for
the expenses <jf himself and tlie other voters who were
going with him to the jiolls ; Ijut the payment would be
illegal either wav. according to the decision of Chief Justice
Richards at Picton, {a) and of my brother Strong at
Barrie. (b).
(a) Prince Kiiwarrt ca.se, anti' ji. 4.1.
(6) North Siiiicoe case, ante p. ."iO.
%
'••^ft.
[A.l».
I'ut, not
' ])('n])l('
iiiuUiii;^'
hiiiisclf,
asou t(j
cr siiu'i'
t'()Ull<UMl
Liididiiti'
till' cx-
iitliori/c
t. chiiiii
intyli' ot"
iracticH's.
fll tluTt'
lui' is re-
I'H alxuit
lo (us he
licylmd
t is not
-. TIh^
'li vat's
lis pur-
mvy. T
as heeu
void.
tV)i- the
lato the
) him to
nont for
lio were
vouhl be
;t' Justice
irong at
IS? I I
sol III (lllllY,
III
As t(. thr Ml at ill-' l>y 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\()i<l holdini;- that the oLject was
the iiroiiiotioii of the election of Mr. Lauder, and that the
clrctioii was \<>id 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<liilate to pui'siie is to have all pa[)ers [)reserve(l,
and to l)e ah! ^•' show how all the money was e.Kpendeil.
Koi- such a candidate, or any agent of his, to he content
with saying he does not know how the money i.s spent, is
\-ery unwise.
I^ut I pronounce no decision on these points, as the con-
duct of Pi-ivat has rendered it unneces.saiy. ( )u the ground
of Privats acts I declaiv the election void, and I shall
re[)oi-t that it was not estahlisluMl to my .satisfaction that
corrui)t acts were committed hv or with the knowledge
of Mr. iiau<ler pei'.sonally.
The V'-i . '" :icti>-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 committe<l in
order to inihii.Mice voters at the election complained of.
Evidence was given to show that certain parties had attimded meetings
with the respondent and canvassc^d for him. and had pei'f'ormed other
acts of alleged agency, as set out in the evidence.
J/rlil. that tlie acts of alleged agency relieil on in the evidence wei'e not
sufficient to constitute such parties tlie agents of the respondent.
The petition nevertheless was dismissed without costs.
A special case may lie rcserveil for the opinion of the Coui't of (Juccn's
Bench only when the Judge presiding at the election trial has a serious
doubt as to what the law is ; or believed that the Court night enter-
tain a different opinicui from that of the election jutlgo.
The petition was in the usual form as to corrupt prac-
tices, and claimed the seat for the defeated candidate. The
votes at the election were: For the respondent, ],30G;
for the Hon. John McMurrich, 1,-301; majority for re-
spondent, 5.'
[a.d.
•11 some
i^^ear to
e issues
,tions as
ind, and
ik there
X 13.)
(ULTBEE,
>r 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 respon<lent. 1 took part in the last election for Mr.
Boidtliee; I canva.ssed for him. I went with him when
he was holdino; meetings ; I was not a member of his com-
mittee. I know a place callod Gum Swamp; I went
thiwigh there the night before the election. David Wil-
l(-iio-iiby wi'nt with me. It was dark. We met parties
on the road : they all said they wei'e going to vote for
Boultbee. 1 liad some liquor with me, a few small
bottles; I bought them at Huggard's hotel; I got it to
tieat my fiieiids. I left them at the mill ; I think there
was a doze)i when I started. I stopped at Bellhaven; it
was a pdlHng place, I got there about 11 or 12 p.m. Mr.
\Villou<'-hbv was with me. The bottles were left in the
buo-.oy ; they Mci'e in an open box. I took the licjuor to
drink mj'self, and to tieat my friends. The bottles were
taken from the buggy ; I missed them next day. I did
not treat any peison ; don't think I made any inquiry
about the whiskey.
Aicliilinhl Mr Finn : I was bar-keeper in Hewett's
hotel in March hist. 1 ]'eniend)er the meeting of the bS*^h
March. I heard it was a meeting of Boultbee's friends.
Saw Ml'. Hogaboom theie. I cannot say what they were
talking about. I chai'ged i?.")0 for the liijuor; that was
the value of the li(juor. I guessed at it, George Hoga-
boom ordered it. I did not tell him what I chargetl. I
cannot .sa}' how often I served them with licjuoi". They
were mostly village people ; some of them got a little
drunk. J eharged 5 cents a glass. I chai'ged SIO for the
room. 1 did not try to keep an account of the gla.sses.
1 think there were SIO worth of liquor di'aid<. It was
whiskey and beer and cigars ; there was drinking at the
bar besides, which Avas not included. Mr. Hogaboom did
not say who would pay for the licjuor. I charged it to
itlHl,,,
64
PROVINCIAL ELECTIONS.
[A.D.
him because he ordered it. Hoo'ahooni did not en<i'a<'e
the room.
Joh.i ILtrtray : I reside in Newmarket. I voted at tlie
last (.'lection for Mr. Boultbee. I was at the meetino- on
the liSth March. I do not know wliat the meetino- was
for. I went to hear tlie result of the canvass. It was a
committee meeting. They wei'e coiinting up the votes of
the town in favor of Boultbee. I had a glass of beer in
the room. The meeting was suggi'sted by Mr. Bui-ke and
Mr. Hogaboom. There was a number of Boultl)ee's friends
there. When I arrived at the meeting there was (|uite a
number there.
James Hackctt, M.D. : I am a voter; 1 voted for Mr. Boult-
bee at tlie last election. I canvassed for Mr. Boultbee.
There was no regular committee to mv knowledoe. I
occasionally got votei-s together to promote the election
on my own responsibility. David Willoughby was, 1
suppose, one of Boultbee's coimnittee in North Gwillim-
bury. I saw a list of voters in Mi-. Slu'ppai'd's possession,
but I think Mr. Willoughby sliowed it to me.
Cross-examined : I do not know that Mr. Boultl)ee aj)-
pointed any person to act as a counnittee-man or canvassei-.
I was an independent canvasser. Mr. Boultlx^e knew I
was canvassing.
David Glover : I saw Mr. Boultbee during the canvass-
I .supported him at the former election. I canvassed for
him. George Hamilton and I wei'e appointed a committee
to canvass Gum iSwamp school section; we wei'e a])poiuted
u))on the connnittee at the meeting at Bellhaven. ]3avid
Willoughby was, I think, chairman of the committee; John
Anderson was secretary. Theie was a lai-ge meeting ;
perhaps 80 or 4(1 were })reseMt. There was nothing to
drink. Then' was anothei' meeting at which T was not
present.
Ditvid Sprafiiif : There was a munbei" of the piiople of
North Gwillimbuiy met ; 1 was one. David Willoughby
and others were thei'e. We supporteil Mr. Boultl)ee.
There were a number of other neighbors there. Mr.
''•r-Sw.
[A.D.
NORTH YORK.
65
engage
.»<l at the
eting oTi
ting was
It was a
votes of
:' \mh\v in
like and
's friends
s quite a
[r. Boult-
Boviltbee.
ledge.
I
election
\- was, 1
Gwillim-
Dssession,
lt1)ee a])-
mvasser.
knew I
canvass-
assed for
miittee
)j)onited
David
•e; John
Meeting ;
thing to
was not
)(!Opl(» of
louu'hbv
iloulthee.
re. Mr.
)ni
1S71.]
Willoughhy was chairman. Tliere was no treasurer and
no money. Mr Boultbee had a meeting at Bellhaven
before the nomination.
Cross-eximincd : Mr. Boultbee had nothing to do with
callin"- the first meeting. It was called for the purpose
of ascertaining the feelings of the people.
James Chow/ : I live in King. I voted for Mr. Boult-
bee. I saw him in Newmarket after he became a candi-
date. I attended a meeting at the Royal hotel. There
wei'e a ;''ood many persons there. 1 suppose 20 or 30 per-
sons were present. We met to arrange about the election.
Mr. Boultbee was j)resent. Persons were appointed to
canvass. I was to canvass on the south side of the town-
sliip. Mr. Boultbee was in and out. I spoke to him, not
altiiut the election. Mr. Morgan, Mr. Boultbee's partner,
was thei'e.
Ediiytrd Munjan: lam partner with Mr. Boultbee. The
oliject of the meeting at the Royal hotel was to ascertain
the views of the electors ; Hogal)oom was there, but I anr^
not positive ; Willoughby was thei-e. I live at the hotel.
1 was in and out veiy of ten. I was not taking an interest
iu tiie election, except a natural desire to see Mr. Boult-
bee elected. My going in and out had nothing to do with
the election. I did not go to the meeting to see after the
election ; it was sim])ly cui'iosity. I did not know there
was to be a meeting. I went to the hotel and I saw some
cntei', anil I was told they wei'e favorable to Mr. Boultbee.
They were talking of what they had done. It seemed a
jollitication. I think 1 had some l)eer. I made a few
ivmarks. 1 acted as scmtineer at one of the polls. Mr.
Boultbee reijuested me to go there. I was at Street's
tavern. I gave two or three piirsons there some li([uor. I
(lid not know them to be electors. I told the landlord it was
illegal foi- him to keep open his bar, or to give or sell
li(|Uor, on election day. I will not swear 1 did not go bo-
hind the bar and take the li(][Uor. I either did that or
called for it. I was cold after my long drive. 1 think it
was after this 1 was consulted.
ill.
m " II I ■HMWIWWWWl flTn l ll
66
I'ROVINCIAL ELECTIONS.
[A.D.
■it
■"'"'Ml ,
George Hofjahmn: I live at Newmarket. 1 was anxious
for Ml-. Boultliee's election. I a.sked some men for their
votes. I do not think I asked manj^ I went with Mr.
Bonltbee to Aurora. I think he had a meeting there. 1
spoke to people about the election. The meeting was at
the Town Hall. There was a tavern about a (juarter of
a mile distant ; we put up our horse there. There were
.')0 or GO persons present. There was no drink furnished
thei'e. I attended the meeting at Hewett's liotel, New-
market ; I ordered one <h'ink. J told the bartender to
bring in a drink for the crowd. I had no particular ob-
ject. There were probably 50 there. There were 5 or
drinks ordered ; I I'ather think Mr. Morgan ordered a
drink. I did not engage the room. The meeting laste<l
about two hours ; we were talking about the election.
1 was pi'esent at the me(.>ting 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<r was at
(uarter of
'here were
furnished
)tel, New-
,rtender to
'tieular ob-
,vere 5 or (i
ordered a
ting lasteil
le ehiction.
)tel ; 1 took
y about the
:!ading sup-
itineer.
■ eounnittee.
t. I knew
there. Mr.
[person who
le not Boult-
lat it was a
We then
T voted at
f^he poll was
lot sell any-
nachine any-
ine decanters,
He acted :i>
|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 un<ler the previous Acts, enables
uie to find that these sections would exactlv cover the
(a) 32 Vic, c. 21," s. (il : No drink or othor entertainment to bo furnished to any
nicetini; of elei'tors as-senibled for tlie ])urposc of iironuitiii;; the eleotion : s. (ili, nil
luituls, taverns, etc., to 1)0 closed on the [lollin;; day, and no spirituous or ferinentcci
drinl<s to he sol<l or given to any person on such dav, within tlie electoral ilistrict.
(See U. S. O., c. 10, Si. l.il, 1S7).
(ft) 32 Vic., c. 21,--ss. 07 and (18 define bril)ery ; s. (i!), election of candi<lato i^uilty of
hriber.v void ; s. 70, bribed votes void ; s. 71, hiiinsf of teams to convey electors to thu
poll illegal ; s. 72, undue influence defined ; s. 7.5, persons must give eviden e, though
the answers mav criminate them ; s. 74, contracts arising out of the elections void,
(See U. S. O., c. io, ss. 149, loO, 151, 155, 15S, 103, 170, 170).
A
JiL
iV^f
[a.d.
some of
at. The
r sugges-
1. They
3 YJersons
)ulil have
lie moans
x'd -what
>hhy 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<l : the evil
is the same Avhether the ca i<lidate,or " any other pei-.son"
gives the entertainment which has the effect of breaking
the peace or good order at elections. The meeting at
Hewitts was a violation ef tliat clausr, and was called to
pi'omote the election of Mr. Houltbee ; 1 don't say who
called it: according to law it was an illegal act to furnish
the entertaiimient. So with the OGth .section ; I'very tavern,
the statute .says, shall l»e closed, and this section is con-
sistent al.so wdth the view I have expressed as to the (Jlst
section. Tt is inipo.ssible to say tliat Morgan's treating
was a corrupt practice : he was cold, and took a drink
and o-ave it to his friends. If I held this to be a corru])t
act, I would have to declare him incapable of holding
office for <S years. The words "illegal and prohibited
acts " apply from the sections from G7 to 74, and to those
only. But I do not wish to be mismiderstood. If refresh-
ments be rjiven to influence voters, it would be briberv.
Tt is of no conseqxience what .shape the bribery takes.
The election in that case woxdd be void, not for a vio-
lation of the ()Tst section, but because it came within the
range of .sections 67 to 74. So as to the (iOth section. If
there was a distribution of a large (juantity of liquor, —
which is not suggested here, — the election miglit be
declared void. T may mention tliat the Judges have con-
sidered this section, and they were unanimous that no
violation of it would avoid the election. The majoiity of
the rota judges was of the opinion, T believe, that no vio-
lation of sections .57 to ()0 would void the election. There
has been some division of oi)inion, T Ijelieve, as to the Gist
section : none as to the GGth. Tf the candidate u'avc a
drink out of a Hask on election day it wouhT not avoid the
election. Private persons like Morgan and Willoiighby
III :
\l -
Ih 1
III
: 1
"'J
!
': ! ■
; i
■ 1
70
PR( )V I NC I A I. ELECTIONS.
[A.D.
are entitled to my clear opiTiiuii that they have not been
guilty of coiTUpt practices, according to the views I enter-
tain of the statute. I cannot tind Willoxighln', Moigan, or
Hogahooni to he agents of the respondent, as 1 woidd
have to report if I rescM'ved the case for the Queen's
Bench. [The learned Judge then reviewed the evidence
as to the agency of thes(! parties.] On these and on public
grounds also I think 1 ouglit not to reserve a case for the
Queen's Bench.
After a short adjournment, counsel for the petitioners
stated they would al)andon the further prosecution of the
petition.
It • '■■ \
! r
ii-^
iiiL
Galt, J. — 1 think the pi-oceeding a wise one, and the
best for all parties. I therefore dismiss the petition; each
party to pay his own costs.
(") Journal Legis. Asscm., l(S71-2, p. 7.)
EAST TORONTO.
Before Chief Justice Richards.
ToiwsTO, ..'ml to i!fh Spjitcmher ; :J7//i N'orcmhcr, 1871.
Nicholas Rexxick, Pditioncr, v. Matthew Crooks
C A merox, Resiwndcn t.
Ai/cii/s — Arcoiinfs of I'li'pinditurc hji — Excxxive Expenditure — Personal &:•
jtensesofCaiuUddte — Pai/ment fo C'dnm.isers — lif/re.i/imenf.i — Treatin;/
— Briherji — Erhleiiee as fo Offers to Bribe — Cumnlalire Eiudenee
wjaiuNt an Aijenf — Costs.
A candidate in good faith intended that his election should be conducted
in accordcance l)oth M'ith the letter and the spirit of the law ; and he
subscribed and paid no money, except for printing. Money, however,
was given by friends of the candidate to ditt'ci-ent persons for election
purposes, who kept no accounts or voucliei's of wiiat tliey paid.
JJeld, that bribery would not be inferred as against the candidate, who
neither knew nor desired such a state of things, from the omission
of these subordinate agents to keep an account of thoir expenilituro,
especially as the law was new, and contained no provision similar to
the Imperial statute, which retjuires a derailed statement of expendi-
ture to be furnished to the returning officer. But it is always more
satisfactory to have the expenditure sliown l)y proper vouchers ; and
if money is paid to votei's for distributing cards, or for teams, or for
[a.d.
not been
s I entei -
ui'gan, or
1 would
! Queen's
evidence
on public
se for the
(ititionei's
ion of the
', and the
ion; each
2, p. 7.)
1S71.]
EAST T<1R()NTO.
71
1.
Crooks
Personal Ex-
.s — Treating
I'c ErhU'nri'
coiulncted
xvf ; and. he
y, however,
tor election
aid.
lidate, who
lie omission
xpenditnre,
n siniilai' to
of expendi-
dways more
tellers ; and
ams, or for
refreshments, tiicse will he open to attack, and judges will bo less in-
clined, as tile law heL'omes luiown, to take a favorahh! view of conduct
tiiat may hear two (joiistnictions, one favorable to tlie candidate and
tlie otiier unfavorable.
The candidate is not restrictid to iiis purely personal expenses, but may
(if there is no intent theret y to intiueiice voters, or to induce otiiers
to procure his return) hire rooms for committees and llleetin^'s, and
euijihiy men to act as canvassers, to distribute canls and placards,
and to perform similar services in connection witli tiie election.
The plain and reas(mai)le meaning of the .statute is. tliat wiieu tlie pro-
lii))ited things are done in order to induce anotiier to procure, or to
endeavor to proc.ire, tlie return of any pers(.n to serve in Parliament,
or the vote of a'ly voter at any eh;ction, the person so doing is guilty
of liril)ery.
Tlie difference between the Imperial statute (17 and IS Vic, e. 102, s. 2.
subs. ;{, proviso) and the Ontario statute (.S2 \'ic., c. 21, s. 07, subs.
.'1, proviso), as to "legal expenses" in elections, pointed out.
Tiie friends of the candidate formed tiieinselves into committees, and
some of them voluntarily distributed cards and canvassed ditrcrent
localities, witli books containing lists of voters, noting certain parti-
culai's as to ))roniiscs. etc. These canvassers often met voters in public
houses, ami wliile there, according to custom treated those whom tiiey
found there, and thus spent tlieir money as well as tlieir time. On
tiiis l)cing repi'esented to tiiose who liad charge of the money f(jr elec-
tion expenses, tlie latter, in several eases, reimbursed the canvassers.
//(/(/, 1. That these general payments, if not exceeding wiiat would be
jiaid to a person for working tiie same time in otlier employments,
would not be such evidence of i)ril)ery as to set aside an election.
2. Tliat the furnishing of rcfresliment to voters l)y an agent of a candi-
date, without the knowledge or consent of tiie candidate and against
liis will, will not l)e sutlicient ground to set aside an election, unless
done corruptly or with intent to iiiHuence voters.
Where tlie object of an agent in treating is to gain popularity for himself,
and not witli any view of advancing the interest of his employers, such
treating is not bribery.
The total ex|)endituro proved was ■'i<(il(>, 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<iii,! cisr (1 O'M. & H., 192), adopted
as a general rule applicable to this case.
There lieing no grounds for charging the respondent personally with cor-
rupt practices, and the scrutiny having lieen abandoned, the costs of
tlio.se parts of the case were onlered to be paid by t\u'. petitioner. Hut
with respect to the other costs, though the respondent was successful,
the matters were proper to be iii((uiicd into in the public interest,
and each party was left to pay his own costs.
The petition contained the u.sual charges of bribery,
undue influence, intimidation, and other illegal and prohi-
I ^ li
hi
■A I
l^^!|
r^!^
Hi ,-
72
TROVINCrAL ELECTIONS.
[a.d.
m
"'"■.„
'"'".1,
Ititedat'ts and corrupt practices, and claimed that Francis
H. Medcaif, tlie defeated candidate, Imd the hij^diest nundier
of legal votes, and should have been returned. The votes
were: for the respondent, ] '2'V2 votes; for F. H. Medcaif,
1,112; majority for resjiondent, 120.
Mi: Madcnndii atul Mr. />^(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 di<l tlie
canvassing. He used no money; was not iiroinised any.
Ilcsaw some money i)aid for cards or bills by Mr. -Tolin
('ariutliers, chairman of the committee of that ward ; saw
money paid for jp.isting bills ; saw one Harrington paid l»y
Carrutliers; >uw some other money paid by Carruthers
for souietliing connecteil with that work. Several per.sons
were pai<l for canying around cai'ds ; .some fifteen or
twenty dollars were thus j ai<l. Parties were i)aid forgoini;
aiound to :,five notice (tf committee meetings and for
carrying around cards ; saw as much as $2 given to a
messenger, and as many as sixte(!n t'liiployed to carry
anMind card.s. Half of the number may have got nothing.
Was n(»t pai<' b>r 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 an<l
tohl him to be sure and have no money promised or paid
for votes, and to Ik very careful and do nothing wrong.
He gavti up his .school during the whole canvass, about
tifteen days; no bargain about being paid ; would not .say
he had no hojie of being paid. He was subse(juently re-
called, and a paper shown him containing a list of nanu's
of about 47 per.sons under the heads "names," " .services,"
$, cts. Under the head of ".services" opposite most of
these 47 names were entered ".scrutineer," " canva,sser,"
" scrutineer," etc. Oppo.sitt.' a few, " meeting -icrutineer,"
" meeting canvasser." Tlie largest sum opposite " scru-
tineer and canvasser" was .S15 opposite the name of G.
Morphy. Opposite the names of four persons Si was put,
and the remainder, S3, S4, .So, S2, and as high as S7, and
half-a-dozen as low as S2. One name in pencil, Mitchell,
had S20 oppo.site it. Jo.seph Duggan's name was put down,
" use of room for connnittce 12 days, 2 meetings, etc., SI30."
Fred. Warmoll "12 day's constant attendance at committee
room from 9 to 7, making out canvass books, including
is
'r^:l
m4
74
CltoVIN'ClAI, F.I.KrriONS.
[a.d.
1 I
!»l
"■"HI,
if
i
hjik|
payment of two iiicals oaclnlay, >i^'"{()." There was a pencil
m(!ni<)ran<luiii at the hottoni of the i)a<j;e, .S-UXi. If that
was iiiton<le<l to he the Hfltlitioii, some claims amountiii,;^
to i'i'l.S weie a«l<letl afterwards. The three last items in
tlu' statement wouM make the amount. In relation to
the memoran<lum he stated it was in his own handwriting,
that the men mentioned in the list claimed those amounts
as what they ou^dit to have. Hr j^ave it to Mi-. C'an-utheis
aftei- the election was over, with all the otliei- pajx'rs
When he madi- up the paper he told them he thought
thei'e was no chance of tlu'ii';.fettin,!4 anything. The pai'ties
named came to him to put their names down. They
ahuscfl liim ahout it; saitl he and Carruthers liad <fot the
money lietween them. When Mr. C^arruthers (,'m[)loyed
men to distriliute the tickets, he told them they should
not <f('t more than a conniion day's work, that they should
do a little for the cause without pay, as othei's did. Whcm
Im put down their names he told them tliey mi<ji'ht as well
put down thi-ee times as nuicli as it was wortli ; tliey liad
been eni;a<'ed with the knowledy-i^ that Mr. Cameron oi-
Ml'. Carruthers wouM not pay for these services. They
ha<l Iteen so warne<l in his pi-esence l)efoi'e they went to
work. The parties named came to liis house, he did not
^'o to them. He miyht have seen them in the committee-
room ; they must have come to liim. He never saw the
pajiei- since he <jfave it to Carruthers until tlien. He spoke
to C^ari'uthers ahout his own claim, and Carruthers said
he had nothinij to do with it.
./. Ui: Gra.-i.si, the secretary of the central committee,
said pai'ties had applied to him for pay, hut they were
told there was no chance of their getting' any.
Nineteen of the pers(ms named on tlie list were caUed
as witne.s.ses. Tliev almost all denied any knowledge of
tlieir names lieing on the list, or expecting any money, or
ha\'ing been promised any. Among the rest,
T}i()ma>i 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 <j()t the
Miiployed
jy shouM
ay should
id. Whon
lit as well
they had
iiieron or
>s. They
{ went to
di<l not
nuiuittee-
saw the
He spoke
liers said
)Miiiiittee,
ley were
rre called
^vKidge of
iioiiey, ov
st for S''>.
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 tol<l
l,i,,, li,. liad jicaid from ( ai'rutliers that those who acted
as scrutineers were j^oin^' to j^'et something,', and his nanir
was down for S.'». He said he was nevn- promised any
money, and did not expectt anything;' until Warwick
mmtioiied it. He nevei- went for any.
.fiisipli Di'iiil'io, whose name was on the list for !i*>J() foi'
use of rooms, suiil C'arruthers askecl him what his cliarj^-c
was. lir told him he maile no claim, an<l he had not
made any claim.
.ht}in Fil-jjcrdltl, whose name was down for .SIO, said he
i^rot '-5.') Irom Mr. ( 'ari'uthers for distriliutin<;- tickets — two
dollais at one time and three dollars at another — and he
was aliout nine days and ni<.;'hts canva.ssino' and disti'ihut-
in^. lie asked Carruthers at one time if anything' more
was to he i;ot :* He ,said he <lid not know anythiii''" ahout
it. He asked Mr. Warwick how he was «j,'etting along,
and he said the election was protested. Carruthers paid
him the money not for his intei'est hut his lahor. He did
not pi'omise him anytliiny more.
Loi'is ]Viilhii\ whose name was down for i52, received i?2
fiom Carruthers. He an<l some other men vmdertook to
canvass in a certain section, and in doing so spent money
foi' refresjnnents. He told C^airuthers lie could not
atioi'd to lose his time and spend money in going about.
( 'arruthers told him he had got money from Mr. (Jooderham
to i)ay foi- piinting, hut nothing to give aAvay. He told
liim he would ])ay him for his time out of his own pocket,
and to go on. He gave him $2, an<l that was all he
reeeived.
The rest of tho.se wlio were called who.se names appeared
on the list denied having authorized any claim or applica-
tion being made on their behalf. They did not claim any-
thing and did not expect anything.
7(5
r'ROVINOIAL ELECTIONS.
[a. I).
William Goodcrham, the younger, placed in Mr. Car-
rutliei-'s hands for ihe pui-poses of the election about Sl'>(),
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(<t be $50, for anything he knew. He did not get
1.S71.1
EAST TORONTO.
77
till- funds from any one for tlu' purpose of paying tlu-
caiuounts in tlie statement. He did not know whose writ-
iu"*- it was in ; to the he.st of liis knowledge he never saw
it before. He gave money to JVIcDonald— a dollar or two.
He ga\e n(. man 810; he did not spend $200. Won't
swear he did not spend 8100. He got money for election
l)uri)oses from Mr. Goodei'ham. It was a small trifle to
])ay for posting up some l)iils. It was cash to pay some
men they had going round posting bills. Mr. Goodor-
hiim said t'> 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<l
1 »y the day. Most of his own men got donble pay for the
same time as these men got who delivered these tickets.
He denJe<1 that Warwick had ever handed him the li.st or
any paper connected with the last election, except two or
thi'ee scrutineers' books and some l)ills for printing. There
might have lieen some small memorandum books. He
had destroj'ed or lost all of them.
William Hamilton, Jim., chairman of the comniittee in
St. Lawrence Ward, said he paid some money for dis-
tributing cards an<l posters, and sor . other legitimate
expenses, and for no other legitimate expenses that he
knew. There were fourteen or fifteen employed to dis-
trilaite cards or posters ; most of them sti'angers to him.
He paid them !?.'), .*?(), or 810 a-piece, according to the time
they rendered. They did not render any account, and he
got no leceipts oi' vouchers. He could not recollect the
names of any of them. Gould not say if they were electors.
At the ward meetings these persons came and rendered
their accounts of the time they had been occupied in dis-
tributing the cards. In addition to these, there w^ere two
or three who canvassed. The persons to whom money
was paid were those who went al)out posting bills and
disti'i))uting cards. He employed fourteen or fifteen men.
Thinks it would take four or live days to distribute the
cards. They looked as if they were persons taking an
interest in the election. He could not name any man h<'
had paid money to. He spent from $80 to $100 in the
election in this way. He kept an account of it. Got the
numey fiom Mr. Gooderham. He did not put down the
names of persons to whom he paid money ; knew Mr.
(looderham had confidence in him, and he would take his
word for it. The money was paid for disti'ibuting cards.
The bills were posted by the pi'inters. It was given to
fourteen or fifteen persons ; thinks it was all done in a
A.D.
'o or
^hcre
He
Mr
EAS'J' TORONTO.
79
1871.]
week Of ten days. Ho did not suppose it could be done
for less : lielieves it was a reasonable sum to charge. He
i)aid aftei- the service was reiidereil. It was considei'ed a
fair sum, an<l he so believed it at the time, and it was not
niven foi- tlie purpose of niducing them to vote. He did
not think anv of them voted, because he did not know
they voted. He did not Itring' any of them to vote, and
did not see any of them \ote. He was not aware of any
one else paying any money in that ward.
Pairid: Hyncs said he received from S7o to $100 from
Mr. Chishohn. It was given to men who were distributing"
cards. He gave it to tliem witli a dis. inct understanding
and belief that ; y were distributing cards. To some
wlio said tl' \ were out three or foui- days lie gave four
or tive <lollars a-piece. Some might have worked in St.
James' Waiil. He understood they Avere generally work-
ing in St. David's Ward. Mr. Carruthers .said he had got
some money from ^Ii\ Gooderham to pay for distiibuting
cards — he mentioned S.')0 — that he had paid ait all he had
got, and people v.v,v ('uding fault with him that he had
not paid them, lb :ud he could not get enough to pay
them all. He did not canvass any of the men : he under-
stood they wei-e warm friends of Mr. Cameron and were
anxious for his success, but wei'e not al)le to spend their
time in doing this woik without being paid. He thought
it, was legitiuiate work. He believed they had done the
work. He did not know if they had spent all their time
in can\assing ; they appeared not to be doing anything
else. He saw them both in the daytime and at niirht
He did not keep an account of those to wliom lie paid it.
lie of course treated parties; he di<l not consider it as
done to induce them to vote. He thought it likely he
spent from S7') to 1?100. He knew most of the men, but
could not tell their names. If the parties came to him
and said ;:,hey had been out two or three days canvassing,
he would pay them for it. Tiiey were laboi-ing men, or
a poor class of mechanics. He did not ask when he paid
them if they luul worked all the day, or how many hours
1'
80
PROVINCIAL ELECTIONS.
[a.d.
111.
! ilTiiliii.,,
they liad been out. He understood tliey had been ciu-
])loyed, and paid them aecoidingly. Mr. Chishohn gave
him the money for k'gitimate purposes. He understood
that disti'ilmting tickets, posting bills, and work of that
kind was considered legitimate, and that was tlie piu'pose
for which it was expended. Never was expended, that he
was aware of, for the purpose of bribing the electors, and
none used for the piirpose of treating at any meeting of
electors. None given for the purpose of ])ribing himself.
None were jiaid a sum, he thought, equal to fair wages for
what they did, supposing them to have worked as they
said they did and as he believed they did. He did not
think any man got over !ii>.') ; 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 goo<l many who were employed distributing.
Thinks G. Abjrphy wns so employed. Did not give him
any mon(;y. Does not remember giving money to any of
those mentioned in the list. Does not remember the luxme
of any one he did pay ; is not aware that he paid any-
body ; can't name a single person to whom he paid any of
it. Is quite sui-e he has not the money still. He gave it
to persons for distributing cards at promiscuous meetings.
He did not lemember to whom he paid it. Did not give
any cards to those wdio would vote for Medcalf. Thinks
he spent some of his own money in that way. Can't tell
how nuich. Thinks he .spent of his own money less than
8100 and over 'i^^'l'y. He spent all the money he got from
!«
M
1S71
EAST TORONTO,
SI
iself.
Mr. Chisliolin. DM not think lie liad spent SSd of liis
own inonev. W'^iH not swear lu' (li<l not. Did not know of
any hut himself spendin-^^ money at that election. The
money
spent en
that
le s})cll
t i>f his own and Mi'. Chisholnrs \\n>
tirelv in the distrihution of car<ls. He thou«iht
tile i)arties were friendly to Mr. Cameron, llis impivssiun
was that sonu
were electors and some were not. To must
of them he paid a ci)n])le of dollars; he gave each man
what he thought he was woith. Did not know if tlu-y
aske(l him for payment. They weiv men in middling
ciiciiiiistances. Very few of the lahoi'ing class hail votes.
Thev
seeme(
1 verv anxious for their man before thev ''<>t
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
<tii
llUll
II he was worth would not intlueucc hiin. He sup-
]'oited .Mr. Cameron before Mr. Cameron gave him tin
money. The money was not given for the purpose of in-
82
PROVINCIAL ELECTIONS.
[a.d.
tiucnciiig otlier votei's, or briltiiijL;- thoiii. He did not use
tlie Dionoy foi- tlie })Hi'pose of influencing the voters, oi-
corrupting oi- l)nl)ing them ; lie used no money for corrupt
purposes. He was well awcare Mr. Cameron was opposed
to spending money for the pui'pose of the election.
The case was then argue<l hy Comisel, and the Couit
adjournetl until tlie 27th Septemlx'i', when the following'
judgment was delivei'ecl :
Richards, C. J. — It was conceded, and the evidence
seems to establish, l)eyond all doubt, that the respondent,
in good faith, intended tliat the electicm should be con-
<lucted, not only accoi'ding to the letter of the law, but
according to its very spirit and intent. He subscribed no
money, and ])aid none, except foi- some printing, tlie amount
of which was not iiH'utioned, and which there is no doubt
it was proper foi' liiiii to pay ; and it ili<l not appear that
he e\'en kiiew that any consi<lerable amount of money
was being expended.
When a man so situated is to l>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 <i
law, in reipiiring to be satisfied, beyond all reasonable
<loubt, tliat the act of bribery was done; and unless the
proof is strong and cogent — I shoulil say very sti'oiig ami
verv coo-ent — it ought not to affect the seat of an honest
ami well-intentioned man by the act of a third person."
it was urged on behalf of the petitioner, that laigv
sums of mon','V were expended to aid in the election (jf
respondent, and the responsibility was cast (Jii him to show
that it was spent in a legitimate manner.
i
■ 'w
M
[a.d.
not use
)turs, or
corrupt
opposed
I.
e Court
)lUnvinu
evidence
pontic 'nt,
he e(3n-
law, l)Ut
Mil)tMl no
eaniovnit
no <loulit
pear that
t' money
I- tlie acts
he IVr-^t-
nunciatf
ti: "The
it makes
thing to
loi'dinate
lietwnMi
aster ami
■nt. But
ly such a
rasonahle
inh'ss the
tmng ami
an liDUest
jicrson."
that lai-^c
•lceti(>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<l hy
vouchers ; and this Mas knowingly done, contrary to the
statute 2(i A: '27 Vic, cap. 2\), sec. 4. It was shown that
large numhei's of electoi's were intiuenced hy con-upt })rac-
tices coimuitted hy the agents of respondent. Martin, B.,
.saiil as to this (p. •>'] 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<l except through an agent,
wlio.se name .should he given to the returning (jtficer, and
it was to lie puhlished. The hills were to he sent in to
the agent within a month. A detailed statement of ex
peiiditure, with vouchers, was to he furni.shed hy the-
agent to the ivturning othcer witliiw two months after the
eleetion.
We have no such })ro\i.4on in our statutes, (a) and Ave
aiv no\v foi- the tirst time calleil upon to eai'ry out the pro-
\ isioiis of the la\s% which has heen characterized hy Baron
.Martin as a har.sh law, and apply its principles to the
conduct and actions of men, some of whom have never
heen accustomed to keep accounts of any kind, and cer-
la' ily n(.)L accoinits ami vouchers relative to eli'ction
expenses. I do not think I can he calh'd upon, as against
a [lersoii who neither knew noi- desired this state of things,
to infer hrihery from the omission of these suhordinate
agents to kee]) an account of their expenditure, or to
((() Sfo ni-w U. .< o. , c. Id, ss. l^:!-ls7.
r: U
nm
S4
I'ltOVIXCI A L ELECTIONS.
[a. I).
Ill
l"h„
" ' ■'%
ivcolK'ct the persons to whom tlic nioiicy 1)}' them ex-
pended was paid, as J w(juld do if uihiiinisteriiit; the hiw
accoi'dinjf to the enactments whicli prevail in Itlngland on
tlie suhjeet.
Here tlie money was not t'urnislie(l ])y tlie candidate,
nor does it eleaily appear tliat lie was awai'e that any had
l)een suhscrihed oi' was l)eini;' expended for the pui'poses
of the election; Imt it is ])rol)alile he may have thouu'lit
that was the ease, an<l it a[)pears he impressed upon ]iis
friends the absolute necessity of oheyinythe law. If lie
lia<l lieen aware that a lavish exijenditure was o'oinn- on,
or if it was manifest that money was lieini;- recklessly
used, he ouu'ht to ha\(' cheeked and ])re\ented it; ami
althou^'h if I were satisfied the money had been u.sed for
cori'upt purposes I would Ik- compelled to avoid the elec-
tion, yet 1 do not feel called upon to infer that it was so
used from the mere ahsence of a satisfactory account of
its expenditure, vei'itied hy vouchei's.
There has been no evidence •^•iven to show that tlir
expenditiU'e. on the whole, was excessive, if the kind of
expen<liture ivfei'ri'd to is allowalile at all.
Mr. Scott expended .say ahout s:]()0 in St. Jarm's' Wai'<l —
no objection is otlei-ed to the expendituic oi' its details :
Mr. (Joodei'ham i;ave ( "ai'ruthers ,say S|.")(); Mr. Chishohn
<i;ave llynes SHO, and Reid foi- all the wards, SfSO ; say, if
all expended in St. David's Ward, S21(); Mr. (loodei'haiii
gave Hamilton, f(jr St. Lawrence Ward, say !?I0() ; makiii;;-
inall^filO.
The imnd)er of votei's (^i the roll, in St. James' Ward,
were 1,.S.')() ; St. J)avid's, l,S27; St. Lawivnce, i)N().
If the expenditui-e in St. dames be consideivil a fairoii''
at S'WO, the others do not seem unreasonal)le, though tln'
St. James' conuiiittee may have jtaid for more of tlu;
printing than was j)aid foi' in the other wards.
Froui the manner in which they gave their evidence, 1
was xuider the im[)ression that Hamilton an<l Hynes had
spent all the moni-y j)lact'd in their hands for tht; p\ir-
poses tliey mention — for the hoiid Jidc object of paying
111
SSI ^
m
St;
ti(
en
'',\
L;'i
af,
[a.d.
U'lll t'N-
thc law
l^lautl <»u
Liididatc,
any Iwul
]mrpos('s
ii]){)n ]iis
,'. If lu'
;'()iiig oil,
■eeklt'ssly
I it ; and
useil for
the (.'Ici'-
it Avas so
(•count of
tliat tlh'
t' kind of
s' Wurd-
ts details ;
Chisliohii
^0 ; say, if
loodei'liam
) ; making
ics' Wanl.
).S().
a fair one
,lum,i;li till'
)re of tlif
'\i(k'nce, 1
Hynes had
r the p\U'-
of paying
EAST T(»l{oN"r().
85
1S71.]
forserviecs ivndeivd. and not with a view of corrupting'
or unduly inliueneini;' votes.
As to'Carruthers, I Jini hy no nieuns satisfied tliat lie
paid out all tlir nioiioy lie reerived. The list, which tlie
petitioner's counsel in sonu' inystei'ious way ()l)tained pos-
session of, .showed the names of persons wlio had heen
employed in taking- around tickets, .some five of whom
lia<l received small sums, and the larger portion had not
received anything, and never a.ske(l or expected anything.
Some of them, wheTi ap])lying to Carruthers, were told Ih;
had no monev to e.xpend for these pur)X)ses. Imt oidy for
nrintiii"'- vet lie i)aid some small sums, as he said, out of
his own ])ocket. If h<' was unwilling to pay these men
i'di- the sei'\ices so I'endered, and who were all friends of
.Mr. Cameron, out of the money he received, I do not
think it likely lu- would pay ovei- the money to induce
others to vote for Mi'. Cameron. A\ arwick, in liis evi-
deiu-e, said that many of tlie parties wlio a]>])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 \<v
a lirilie ; ant! if ;n"iven to another to purchase his intluenci-
at the election, it un(|nestionalily wouM In' a lirilie, ainj
wouM avoi(| the i-Iection. Our own statute, i]'! \'ic., caji.
21, sec. (i7, oi'd ]iara^raph, is in the same wortls.
At the conclusion <if the second section of the Impeiiul
statute are the words, " Provided always that the afoic-
said enactment shall not extend, or he construed to extend,
to any money paid or a,i;'reed to he paid foi' or on account
of any lei;'al expenses Imtid Jiilr incui'red at oi' concernin;;'
any election." 'I'lie )iro\iso at the eml of the section in
our .statute is, " Provided alwa^'.s that tlu' arliKil peraonid
c.ijiciiKcs of aaji caiididafc, his «'ip( uses for ((ctiial prifcssloinl
scrrlcrx piifornud, and hoitd fdr /mifmrn/sfoi' flir fair cost tif
prill tint/ "lid iidirrfisiiif/, .shall he held to he expenses law-
fully incurred, and the pavment thereof shall not hi' a
contravention of this Act."
It is ai'u'Ueil tliat the etf'ect of our statute is to restrict
the can<lidate to the payment of liis personal oxpen.ses —
that is, foi- his o'-n hoai'd, loil^'in;;', horse hii-e, travelliiin'
expenses, ] suppose, and his expcn.ses for actual profes-
sional services pei'fornied, — meanin^• fees paiil to lawyei's
for tlieir services as such.
In this vioM', he could not hire a I'oom to meet tlie elec-
tors in, or for his conunittee to meet in, unless he were
then personally present ; and none of his committee could
hire a room for that purpose (for that would not he fur
professional .services), if such I'oom belonged to a voter,
and none other could be conveniently ol)tained. I am not
inclined to ])ut this narrow consti'uction on a statute so
liiehly penal as this i,s. The plain and reasonable mean-
inu" of the statute .seems to nie to be what its words indi-
cate, that when the prohibited things are dtine " in order
'•i^'
''^i&
m
./m
A. I).
1N7I.]
EAST T«)|{<»NT<».
87
iN'turn of
A' of any
anytliiiii;',
WDUM lie
intluciuf
irilic, aii'l
\'i(.'., t-aji.
' liiiprrial
blie at'oiv-
tl» CXtl'lllI,
n account
oncerning
st'ction ill
1/ jX'fSOlI'll
■/•(ifcsHiondl
fair cost of
L'nsc's law-
iiot 1)L' a
to restrict
xpensos —
travel liiig
lal profes-
bo lawyers
't the elec-
> 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 a<lopt the
cour.se which appears to liave been adopte(I in this citv.
that is to say. the city or boroiiu'h is di\ided into districts,
and committees are formed anioiiMst the \-oters themselves,
of selected ]iersons. who -n about and caiuass Certain por-
tions of the <listrict. and for their serxices these per.sons
are sometimes paid and -oiiietinies not paid, >sow, 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 ma<le by the
candidate in the course of tlie election." After referrin<»-
to the Tnininrrth c„^, . where ivferenci' is made to the cast"
decidino' that emi.h.yin-- voters mid payino' them as can-
vassers was not colorable, he then refers to the Lmnhdh
rose, in which voters employed as canva.s.sers were paid
and it was not con.si.lered illegal. He ad.ls : " It is hardly
necessary to point out liow exceedingly dangei-ous the
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88
I'ROVINflAI- EIJXTIONS.
[A.D.
n(l()|)ti()n of that .syMtniii is, 'toth in raspci-t to thi^ payincnt
of caiivasstTs, and also in nvspcct of tliat which lias heon
h»'l(l lawful, viz. : th»f supply of fair rcfivshnicnts to un-
paid canvassers, whilst cn<4ajft'«l actually and not colorahly
u|)on this work ; and in like manner, of ^efI•(^shnlents to
conniiittee-inen. It is propel', when this system is referred
to as not lieintf unlawful in itself, to say that it exjxwes
iiiemliers to very gii'at dan;,'er, and wlien it is merely
colorable it would avoid the election." He conies to the
conclusion that paying the expenses of a co-candidate is
not hrihery, and is i "* ])rohihited l»y the statute. He
further adds: "You M'lst show an intention to do that
which is a<^ainst the I.(\v, hcforeyou hrin*,' the case within
the hijrhly ]h'v:v ;'I;ui«" f he statate."
From the e\ jilon.'v' li- and the surroundin<; clrcuni-
stances, I do not feel warr^Sited in inferring; that the sums
really paid to ilectors foi- putting up placards, disti'iluitin;;'
cards, and similar services, were [)aid colorahly and to in-
fluence vote.s.
The couise puj iUed, as I uiulerstand, was that Mr.
'. 'amerons friends formed themselves into committees in
the sf'Veral wai'<ls, and per.sons came forward an<l volun-
teered to distriltute cai'ds in the several localities. They
were furnished witii hooks showing the names and resi-
<lences of the parties they were to call on, and they
returned these names and th«' answers they o-ave as to
whom they would vote foi", to the seci-etary of the coni-
inittee ; and in that way the information was conveyed
to the scrutineers as to the parties who were on the list,
whether they wei-e in the city, whether they wei-e dead,
and for whom they were expected to vote, '{'he parties
entrusted with these hooks and tickets Avere, it may he
juesumed, tho.se in whom the friends of Mr. Cameron had
confidence, or they would lutt have had that position.
When the pai'ties coimneiicedto di.stri'tute cai'ds, (,'tc.,they
often found the parties on whom they were to call at puhlic
houses, and when there, and speaking on the subject of the
election, they, hs seems to he the almost universal custom
I«71.J
EAST TOKONTO.
H!)
with till' elitss of lUL'ii whom thev mt'et, a,ski'<l thv'iii to
(li-ink, and if otluTs were present they were al.v) asked.
The con.se(|ueiK'e wa.s, tin* parties distrihutiiig tickets fre-
(|uently spent tlieir money, lost theii- time, and ;jrot no
pay. When this was repre.sente<l to the parties having-
fuiuls to e.vpend they t/nsidered it a lejjfitimate purpose
to pay these parties for their .services a rea.sonahle sum,
not at any time exeeedin;,' what would he ])aid to a per-
son for workini; the .same len<;th of time in other employ-
ments. I cannot say that the evidence of the.se j^reni-ral
payments .shows any .such lirihery as would justify me
in .settinj; aside the election.
On this particular feature of the ca.se, I may as well
I'emark that when a can<lidatt' oi* his friends expended
lari,'e suujs of money durini,' an election, it is always more
•satisfactoi'V to havi- such exix^nditure shown hv connect
ami ])i-opei' vouchers; and if any money he paid to voters,
oi- larjife .sums paid out for refie.sh ments, oi" teains u.seil in
any way, this will he open to attack and ohservation. anil
jurlj^'es will lie less inclin»Ml, as the law hecomes known
and its provisions ]K)inted out, to take a favorahle view o
acts and conduct that may heai' two constructions, one
favorahle to the party electecl, an<l the othei- ayfainst him.
As to !?I0 paid to Mr. McDonald, the .son-in-law
o
('ari'uthers, Cari'uthers him.self ,savs he <jave him a dollar
or two. McDoJiald .says he horrowed frt>m 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
^
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I'KOVINNIAI, KLECTION'S.
[A.D.
tit \vai<l incctin^s. ulioiit ><+(). Hf was ill Kefon' thf I'lt'C-
tioii, aiui liin'<l calts to takr him from cm' plact; to another,
At"t»T thf m*'('tini,rs were over ho aski'il those present to
• Irink, and all ju'esent drank. Me sai<l his oliject was to
he frientjly with them, and if, after that, they were frieiully
to his candidate, he was jLflad of it. His larijest expriidi-
ture in an evenini; was six or .seven dollars, ineludint,' eali
hire. When he asked the people to drink the (pjestion of
votini^f wiis never m(>ntioned. Ht did it on his own
Jicconnt.
in d
oni<r s(» lie
ha.l
no ilesire to iniinence till
peo]
He S
vote
The oliject J had in view was this : when
men take an interest in these matters, as I diil. ami exert
themseKcs. if they don't treat pt'oj)le, they think they
are mean, and I <lo not wish to he considered mean. '
Witlwuit decidiiiLT that fnrnishin;^ refreshment hy an
atfent of a candidate, without his knowled^'e or consent,
and a;;ainst his will, will .set aside the election. 1 think I
may dispose (tf this point in the ca.se, in deciding whetliei-
hat was iIoik- was done corruptly, to influence votes.
w
Tl
le leni;tliene<l exposition or the cases, as to i unilsiilllt;'
d.
refreshments, in the jud^jment of Chief .Justice Hai;arty,
in the (i'/iii(/itr)\i/ ntsr, (n) makes it umieces.sai'y for me to
refer to them at len<rth.
In til
^\nnii'(irt/i »vrs7
w
here men weic employ«'d to
keep the peace oil the polling day hy an a^ent of one of
the respondents, auioiii^st whom were .some 2!> voters, at
lOs. a-hejid. Mr. .lustice Willes hail to consider why the
a«fent employed tlio.si' men, and he sai<l: "1 helieve lu^
employed them hecause he desired to LTain jiopularity for
liim.self, and hecause he desired to make a handle of their
employment to ;;:ain favor for him.self aiiionj^'st the cla.ss
to which the men heloni^ed l^pon tli(>
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 electi<tn to he void."
Looking' then at this as as an mianthorized act airainst
the wishes of the candidate, I think the fancst and most
I'easonahle conchision to arrive at is wh'it Mi". Chishohn
liimsi'lf .says, viz. : tliat he treated hecause ])eo|)h' w«»id<l
have thop.^fht him mean if he di<l not, and without any
corni|)t intent.
The next class of ca.ses to which my attention was
• lirected was tliat of those to whom oH'els of luihes were
made to induce them to vote foi- respondent.
The tiist is .lohn Kulton. He stated that liconard Hewit
asketl liim to vote for Mr. ( ameron. He sai<l lie could
not. Hewit aske<l if he was not n'oinu" to Ituild a hou.se;
he said he was. Hewit said lie would .u'i\e him two
thousand feet of lundier if he would vote for Caiiiei'on.
He said he could not flo it. Hewit said he w<»uid send
him .some moie if that was not eiiounh. He sai<l he voted
f<tr Medcalf. Ml". Camei-ons serutineei- swore him, and
that was the way his name came here. On anothei-
occasion, Just to try him, he askecl Hewit what he would
j,dve him to v S' for Cameron. Hewit said s2(),justto
try him ; he .said he wanted more. Hewit Hnally decide<l
to jjfivi- him 82'), and *;ave his word of li<.'nor he woidd
make it all rinht. Hewit aske(l. would he not take his
woi-d and honor until after the election. He said he sup-
posed he must, and he was to vote for Mr. ("ameron.
On cro.ss-examination he said he did not promise to vot<
for Mr. (
ameion.
V
He said he Wiinted t<» ti'et a liolil on
Hewit; he thouicht he was too otKcious, and he wanted to
*f(-t hohl of him. He .said he never pi'omised to xote foi-
Mr. Camei'on. He would travel fi-om here to Cooksvillo
on Ids hare feet to vote for Medcalf rather than foi- Cam-
eron. He said there were plenty of men present when the
\
rr-
02
PHOVINCIAL ELf:CTloNS.
[a.d.
■ »■ - I
;' i'
Jl ;
conversation altout the lumhcr to(,k ])la(!t', Init. lie could
not naniL' any of tlu-ni. The first tiiiii' he tlion<;ht Hcwit
was in earnest, ami lie was so liiniself when he refus(»«l
hinj. Tlu' men could not hear them. He could not tell
a sin^de nia«i preseTit when Hewit made the otter.
Hewit was called and denied ever oH'ei'in<r him any
hnnher t(j v(jte for Mr. Cameron. He said in conversation
(they worked in tlu* .same .shop with other men) ahout the
candidates, that Fulton .saiti when he last voted he j^ot
hnnher enough to huild a hou.se. an<l lu' would not vote
for either of the candidates uide.ss they came down. He
asked him if he thou^dit Medcalf would come down.
Fulton, .said he did not think he would. He (Hewit) said
if that was the matter he was foolish for votinj;' foi- him;
that the (Jovei-nment had plenty of inoney and lumher
too ; that was ahout the suhstance of his convei-.sation.
He did not ort'ei" to send up 2,()()() feet, or any lumhei-. He
did not otter him S2.") to vote for Cameron. He must he
lahorinj;; under a mistake ; he never ottered him a coj)pei".
Hewit contradicts Fulton's statements as to ott'erino; io
ijive 820 ()!• anything'. He nescr undeistood from Ik _, n-
niiiL,' to end he was t(» vote f(»i' ('amei-on ; always under-
.stood lie was to vote for Medcalf. He canvassed for him.
ITe did not kiiow Fulton had a vacant lot. He .said that
what he did .say to Fulton was in the way of chatting-, and
as a joke. He said he was foolish for votiiiL!," for Me(lcalf ;
that the (Joverinneiit had ])lenty of money and lumher
too. Nothing was said fi'om which any person co\ild
■seriously infer that he intended to <»ttei' Fulton anythin<;
to vote for Mr. (■ameron. He di<l not think 'i.OOO feet of
lumher or i^'Z') in cash would have imluced him to vote
a^fainst Me(lcalf. From the maiuiei- in which these men
j^ave their evidence, I was not satistte<l that any ,seri(
otter to hrihe Fulton had hi'cn made hy Hewit.
)US
Tlie other persons to wh
>ii
»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«'<l it out the day ln-t'oif tlie eli-ctitni. Iff
lii'licvcd ( Joodcrliuiii owiu-il a small lawn.
I uiKlcrstaiul liy this that Mr. (loodcihaui W(»iil<l oon-
sctit t(» a stiH'ft iK'inj,^ coiitiinKMl thiouj^'h the lawii.
Whfthcr this 'fcutlciiian was nii a<M'nt of Mi*. Caiucfoirs
ill- not dot's not apjx'ar. I think we cannot on this vai^ni^
kinil of statement unseat the sittin;^ menihei-.
(Jeor^'t Smith also stated that Caniitheis told him he
had liets on the election, and he could make moie l»ets if
he (Smith) would vote for Mr. Cameron, lie sai<l he
W(»uM nive him 820 if he wouM vote for Mi-. Cameidn
aifainst the old man (meaning .Mr. Medealf). Smith said
he would not take SIOO and votea'^ainst hiui. lie said
he could make up hets; he had one made with N'ietoi"
Thomas at the same time. Carruthers said he w mid win
the liet if he Noted against the old man. This was on the
nomination day the speakiiiL;' w;.-. i;oinii-on; it was a little
daiup, and he wantetl to i;'et away
.lohn .Vn'iiew said that on the iiiiiht of the meetin<' at
the Dutch Farm, ( 'arruthers said to him, " Vou always did
;^fo foi- me." lie replied. " liut I can't now." Me Would
<lo all he could for .Mr. Cameron only for Mr. Medealf.
( 'ariutheis said, '" Vou had hetter have a couple of dollars.
Vou will ha\c your mind made up liefore the election
comes (,n. ' lie said he had his mind already ma<le up.
Samuel Nishi't was a scrutineer for Medealf. lli- said
he met Carruthers at DuLTian's tavi'rn ; McDermott and
Mel)
onaiil wele
tl
lere
C-irruthers said if he would u'o
with them, he had a nice inside jol> 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 sai<l thev' would make that all ri'dit,
94
PHOVINCIAL KI.KCTIONS.
[A.D.
V=^
'^
;|5
If
6 :)\
Hayiii;;, iM'toic WiMJiu'sday or 'riiuis«lay iii;;ht lie would
tiiid out. On till' <lav of tlic polling' McDi'iniott and
McDonald canK- in; tlicy were surpi'iscd to see liini tliei'c
actin;; as scrutineer for Mi'dealf; they Itegan to alaise him
and call him names. He tlucatened them if they did nt»t
kt'(|) (|uiet at the ])ollin^' hooth, he would u.se theii' own
words ajLjainst them. They told him if he had j;ot the
two dollars the ni<.jht licfore, he would have het-n for
C'ameron.
On ci'oss-e.xamination, he said he told McDonald on the
day of election he would use the words against him
11.
first told it to the petitionei's solicitor that day. It was
not known, hefore the conversation at Duji<,fan's, that he
was jL(oin<.f to suj»])ort Mcflealf. He did .say something to
Mr. C'ameron at Ijynchs : found fault with him, and
showeil a jtrefeit'iicc foi' Medealf; and that wasliefoiv the
convcr.sation at Dun'nan's. lie fell in at the end of a
meetin"-' in fa\or of Medealf at Du^uan's ; was also at a
met'tin^ at Hamiltons, and .said something to two < f
(.'anieron's suiiportej-s there.
Ml-. (
arruthcrs was called, and said lie never offcitMl
Smith a cent to vote for Mr. Camcion. Smith said no
money would indu(r him to soti- against Mi-dcalf. He
nt'Ncr ga\i' or olf'eird Agmw two dollars to \<)tc, or make
uj) his mind aliout \-oting. lli- knew very well he would
vote for Meilcalf, whate\er might ha\e heen given to him.
Hedeiiieij speaking to Neshitat Duggans; he had olt.ser\i'd
him at Foley s ta\'ein Itefore tliat, and he would not
speak to him, and did not all that night. He never hintecl
to him that the (Jovi'i-nment had ])lenty of money, and
could ])ay election hills. Neshit was trying to ])revent
Mr. ('ameron from sjieaking at liVnchs, liy making a
m
»ise and shouting, liefore seeing him at Duggan
H(
.saw Agnew at the lagei' heei' .saloon, and he was drunk.
McDermott said he saw Neshit at Duggans, and asked
him who he was g(»ing for. He said he <lid not know.
He offered him nothing to vote tor anyhody, nor did
McDonald. He and McDonald did not take Neshit aside
liH -
'■T
1S71.]
KAST ToItoNTO.
!)5
to speak alxuit tlu' flfction, nor oH'cr him aiiytliiii;; to
vote. He •It'uiiMl liavin-; the conversation with Neshit
which Neshit saitl he ha<l hatl with him. The (juarrel at
the poll l»e<j;an from Neshit swearinj; McDermott as to his
vote ; an<l the latter then said il' he ha<l ^^ot two tlollars
the ni^'ht l»"^'<»re. In- wouhl have l>een 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 <lo not think such a clear
case is maile out as would justify me in settinn' aside this
election on the i^rountl (»f an oH'er to hrilu- these thi-ee
persons. They i-eceixed notliine'. they did not alter their
\()tt
ai
id 1 fail to see elear and distinct offers to l>rih
ese cases reouire
wliieh I think the lules lai<l down in th
to justify me in tindinif that they were made as alle,y'ed.
Durine; tlie proceeding's thel-e Were some other cases
refel'l'e(| to, wllich at some sta^'e of the pl'oc lini^s seeliieil
to re(|uire
fuitl
ler e.xplanation, hut tin
furti
er ]iroi;'re.ss
of the in"|uiiy seived to atford a satisfactory answer, and
I have oidy ivfei'red to those cases which were speeially
ad\('rte«l to hy the petitioners counsel, at the sunnnine'
up at the clo.se of the case.
1 do not think 1 can Itettei- e.vpress many of the views
that I entertain in relation to this case than hy (pioting
If
» >
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 jn<l^'t' slioiiM art
in tryin;,' a |n'tition allf^^in^' conupt piacticfs. He says:
" If I am satistird that tlic candithitcs honestly intcixlcil
to comply with the law an<l meant to oltey it. and that
tljcy themselves did no act contrary to the law, and ln'iid
Ji(fr intendi'd that no pers(»n employed in the election
should do any act contrai-y to the law, I will not unseat
such a person upon the supposed act of an ai^ent, unless
tlie act is estahlished to my eiitire satisfaction. Thinj^fs
may have lieen done at an «dection of wliii-h I do not ap-
prove — foi' instance, havinjjf committees at puhlic houses,
hirinj; a niunlier of cari'ia^^es (which now in lioi'ou;;h elec-
tions is prohiliited), or hiriji^' " roughs'" — hut which ilo
not of themselves avoid an election, 'i'hey are ingredients
which may l>e taken into consi<lei'ation, and they may tend
to show what was tjie ical iiualitv and meanini;- of an
amliij^uous act, which niay have one ert'ect or another,
accordinii' as the /ludLje's mind is .satisfied tliat it was
honestly or dishonestly done. It may he that in an elec-
tion, (vrtain acts haxc taken place which the judi^'e ili.sap-
i)ro\('s of, liut which <lo not satisfv him that anothei* act,
m which the validitv of the electic
d«
on uepenus, was cor-
ruptly done, liut if, upon a future petition ensuin;^- uj)on
aiiothei' election in the same place, acts similai' to those
of wliich the judii,!' l\ad ex|»i'es,sed liis disapproval were
pi'oNcd to have lieeii repeated, the JudMC who tried the
second petition minht well take tliem into considera-
tion to aid his conclusion, that the act upon which the
validity of the election depended was a (jorrupt and dis-
honest act. '
I am satisHe(l tliat tlu' respondent honestly intended to
comnlv with tlie law, an<l meant to obey it, and has done
no act contrary to the law, and Ixntd Jitic intended that no
person employed in the election .sliould do any act con-
trary to the law. I have not that cU^ar and .satisfactory
evitlence of acts contrary to law, done by his agents,
w
hich
1 will, in my opinion.
ju.stify
me ui •
led
arniir tla
LS71.J
wf:st tokonto.
97
clfctioii of tlu' r(vsj)(»ii<l('iit void, ami it tlioiM-t'ort' Itcpoines
iiiv tlutv to (l»'('lar«' that the rcstxuKU'rit was ilulv clt'ctccl.
As to costs, tlit'iT wvw no ;^rouiuls whatt'vrr for cliarj;-
'm*f the rt'sjKtiKlfMt pcVMonally with arts of hrilicry oi-
other coiTupt practici's, ati<l the Hci'utiny was ahaiuloiu'd
after suiiic attempts were made to '^n on with it. The
costs as to these parts of the case 1 direct shall he pai<l
liy the Jietitiolier to the respomleiit.
Ah to thetitli<'r parts of the case, thoii^di the respondent
is successful, I thinU the matters were proper to lie in-
i|uired into in the interest of the puMic; and as to them, I
;;ive costs to neither party.
{7) ./oiiriid/ Lcf/is. Assnii.. Is? I -2, p. 10).
WKST T()|{()NT().
Hkkork ('iui;i" .Iistki: Uicii.vhds.
Ti'ltdNTd, 7f/i /i> '.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
.'/,
'/_-<'„.</.,
\vi
U'l'i' :l I'illii
li(l;lt
L' 111 ''(>()(
I fjiitli iiitfiiilcil tliat lli^s I'lfc.'tiitii sIkuiM 1
IC ('(lll-
iliK'ti'il li'i^iilly, and |>i'intcil a syii()|>.-<is of tlio iii-w law as to comiiit
practircs, and ciivulati'd tin- sanii; tliroii;,'liout tlu' ronstitiicncv. iinil
causi'il it to lie imlilislii'il in a nowspaiu'r w itii .'in cilitoiial aitidi' on it,
anil ;
in ai)i)i't'\i
iito.l t'l
oi'ni ot till' synopsis to oc posti'tl in cacii L-oiiiinittti
room, and inforincd his ci'iitral cW-ction lominittf
f ot its proxisioiiN
illid tile .Indue found tiiat lie had taken a :,'ood deal of tiouMc to liavi'
the law rxplainod ami cireiilatod amongst tin- ck'c^tora, and desired to
)uy
it
//'/'/, -'I'liat althoiiLdi many of thv acts done diiriiij,' tlu' di'rtion LTratcd
a j,'ood deal of doiilit and hesitation in the mind of the diidge, yet. as
the return of a nuMiilier is ;i sitIous matter, and ouijht not to he lightly
set aside, the .Imlge oiigiit to he satisfied iieyond all reasomdile
doul.t that tile aets
d
s so (lone WelH' clone \V1
d
ith tl
le intention of inliui
iiig voters, and so done eorriiptly ; and this eU'etioii was upiiehl.
The eU'ect of s. 'M) of ,'{4 Vic., e. .'{, rei|iiiriiig the Jmlge to l>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<l){<!, if nittin^ lis a jiinir, woiiM liiul lor tin; licfi'mlaiit ; in
Hiiiiilar caNrH in i-lri'tion trialx lie iiiiiIit to tiini agaiiiMt tlit- ('liiii>;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' ^tii<l caiiacity to can-
vaMH Wiiiilil not iiiaki; liif* t>in|>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<l to their wives, ,'iiiil the
a;,'ent was not reealleil toexjilaiii it.
//</'/. That althoii;;h such payiiient iiiii;ht lie open to an iinfavorahle
inter|iretatioii. it was not. acconlin;^ to thu evidi'iice, inconsist<-iit with
liciii^ maile without any impi'o|ier motive.
\Vher<' moiuy was paul to voters for services ;i^rec(l to he reinlered,
hut sucil ser\ ices Were not ri'llclefeil owillj; to the lllisfolillllct of tin)
voters, such payment was not hriliery.
A voter who had a claim of .^;i from a foi'iiier election of respimdent,
wiien canvassed to vote .said he did not think he shonhl vote,
evidently piittiii;,' forth thi^ Si{ that was ilue to him as a ^'rievance.
pioniised to pay it to him,
'11
le clcrl
d I
if an at;eiit ot the re-poii
dent
iiid he voted, :v\>\ 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
)Ut<l his )i!^)>uts, 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 Iifl<l on thr 21st Manh last, hy
liiiiisrif ami othtT pt'i-sons on his hrhalf, was Ljuiltv oi"
liiilii'iv, trfatiuij' and undui' inllufiici', liffori', tluriny; ami
after tlii' said election ; whcrcliy lir was and is inca|»a-
citati'd fi'oiii serving' in the Pailiaincnt of Ontario for the
West llidini; of the (Tity of Toronto; prayinn' that the
return of the saiil Adam Crooks should lie declared void,
and that flohn Wallis was duly elected ami ou'dit to havo
ell returned.
Tl
le eVKU'llce sliows
that
a tniKl was raisei
i 1
V suh-
Sl'l
iption liy ri>sj)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<l what would he eontrihuted hy
• itliers, wouM pay all the expenses of the election ; hut if
not. Mr. (yattanach (a nieiiiher of the law tiriii of Crooks,
Kini^sniill, and Cattanacli, of which tiriii respondent was
a nu'inher), was authori/ed to apjily any funds to the
credit of re.spondent iu the partnership to pay any leiL,d-
timate char<res, ami chartre it to his account in the part-
**>,«» ■^: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<le a synopsis of it, <j;ot it
printed and insertt'd in the G'/ohc, with an I'ditoi'ial on it:
he had a large numher of copies of tlie synopsis piinteil
and circulated, and calle(i attention to it, with instructions
toll
lave it pastcfj in each canvassers liook ; a more ahlni
ihl.
viated form was stuck ui) in the eoiiimittee rooiii^
resnoiw
lent
•1>
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<l corimitters were furnished
with money to i)ay expenses. Mr. Hime, the chairniaii
of St. Patrick "s Ward, stated that when he gave the
money to the partii's he told them iioiir <»f it was to ^r
expended in ti<'atiiig or in inlliieiieiiig voters : it was to
I
»av
Ml
leir own iiiM'sdiial exiteiises.
He ah
•dw written
instructions that any one who receive(l pay for \u>
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, an<l for <listiMhutinj^
notices and ifettin^" up the state of the polls, and eniploy-
iiHiH of persons to in(|uire ahout voters wiiose nami's were
on the list, and who were !iot known to any of the con»-
iiiittee. There was an item of personal expenses durin<^
the canvass of 81 J', hein*,,^ ahout thi-ee weeks, foi- refresh-
iiiriits, cah liire, and stich like chari^es. Mi\ Kinu'smill
stateil tliat he hired two cail'ia,i,'es for the day of election
fi(ini Mr. Bond, one to he at tlie ilisposal of Mi'. .latiray-
tlie chairman of St. .lolni s Ward, and Mr. Millichamp,
wlio was looking" aftei- some of tlie committees; thei'e
was aiiother cai-riaj^e and driv.'r, and the eharij'e was 81 M
t'ur all ; directions were _i;iveii to Bond, from whom thev
wei'e hired, not to carrv voters in those carria<(es. They
wric to use the carriaj.,'es to send them to what p(»lliiiif
])luces they chose to carry a^^ents, committee-men, \'c.
.Mr. Kinji,^siiiill sai<l in his evidence' they were discussiny-
in St. (Jeory-e's Ward committee alutut <;ettiii,ir voters up,
and they came to the conclusion that it would he le^al
for Mr. ('rooks' friends to hring up electors in their own
vehicles. Several })ersons and cabmen volunteered. He
told the caldiien when they volunteered the use of their
calls it must he hmid Jii/r ; that if they claimed payment
for the cah after that, they would not _L;et it. The evidence
shows that several others besides cabmen voluiiteei'e(l
their conveyances also. Mr. Kin^smill stated that there
Were aliout '-Vl poliiiii;' places in the division; it was
Very (litKcult to collect the state of the poll, from time
to time, in each polliiiL!,- division. They despatche<l
carriai^^es from time to time. It was not <lone as eflec-
tually as he wished, as it reiiuired a i,'ood number of
cabs. Tt was necessary to keep up connections with the
dirterent .scrutineers, to inform them wlien a man vote*!
in one .subdivision who had a vote in another, .so as to
prevent him voting more than once, and hey had occasion
T
102
PROVINCIAL ELECTIONS.
[A.D.
3 )
!-. I
to send messengers from the central committee to see tliat
the other committees and scrutineers did their duty.
Tliey, in tliat way, recjuired tlie services of a good many
persons. The expenditure in St. Cieorge's Ward amounted
to about SI 00.
The remaining ward is St. Andrew's, the chairman of
which was Dr. Howson, who was also secretary and
treasurer of the central connnittee. The e.vpenditure there
has amounted to about .^''Md.
Dr. Howson stated that, in finy bargain made with any
of the parties who were voters, it was not once stated to
any of tl>om 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 hea<ls.
Mr. HaiTistm's first proposition is that the election is
void V»y the profligate expenditure of money, for which
respondent is res|)onsil>le, 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(n<l." In referenci;
to undue influences, he sai<l : '' Amongst these intluences
are what are called bribery, treating, and oppivssion — that
is, an impropi'i- and undue pressure put upon a man. But
if pressure is put upon a man, or a bribe is a<lministere<l
to him, no matter by whom, oi- refreshments are given to
a man, no matter by whom, for the pur})ose of attectinghis
vote, the effect is to aiuiihilate the mans vote, because he
gives his vote upon an influence which the law says
deprives him of free action ; he becomes a man incompetent
to give a vote because he has not that freedom of will and
of mind which the law contemplates he ought to have for
the purpo.se of voting."
In the same ca.se (1 CM. <S: H., .*}8), Baron Martin, in
refei-ring to treating, said : " It is proved tluit there were
nr
1 \
1 i
1 '■
h
..
«■ ■•
if ^i
iU
i* /
1-1 p -
i;
H..
it'
tf
104
PROVINCIAF- ELECTIONS.
[x.w
open in this town, \>y ptTsons for wlioiii it is a<liiiitted
respondent was responsible, 15S pultlic liouses, and that in
llo of these pul>lic 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
messen<fei's. It is proved hy resj)ondent s own witnesses
that dii'ections wei'e oivon, that at these puhlic houses re-
fre.sliments were to he afioi'<Ied to the ])ei"sons wlio came
there, and that they weiv att'oi-ded hoth to voters and non-
voters, and to any person athnitted to tlu- room, witli the
caution tliattliey shoulil not he excessive, hut leasonahle;"
and under the En<;li.sh Act that was suthcieiit to avoid the
election.
In the Jiiirillcji w.sv (1 O'M. Ar H., Ui), it was proved
that the ivspondent deposited as much as tl 1.000 in tlie
hands of one Pardoe, directin_<^ him, in his letters, t(ta])ply
that money lionestly, hut not exercisiuLf. eithei- personally
())• })y any one else, any control over the manner in wliich
that money was spent ; in fact, not knowini; how it was
spent. ITpon that Mr. Justice Blackhurn said: "1 can
come to no other conclusion than that the i-espondent made
Pardoe his au'ent foi- the election, to aliin>st 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, <lid so employ, even thougli they are persons whom
the candidate might not know or he l»i-ought in pei'sonal
contact with. "
It is contended that I ought to .set aside this election
in consequence of the j)rofuse expenditure of money hy
the respondent and his agents.
Rli :. ^
1M71.3
WEST TORONTO.
105
In the Bnidforil ni^-ir an unlimited amount was placed
at the credit of tlie respondent's a^'ent for the purposes of
the election, of which lie spent £7,200. There were I'jH
pnlilic houses kept open l»v persons for whom the re-
spondent was respoiisihle. In the Bticd/i// C(i.<c there was
£11,000 placecl in the hands of the respondent's a^ent.
All insutJicient return of the expenses hy the respondent's
Uiieiit was held sutticient knowliMlge oji his part of corrupt
j)ra(tices.
The evidence di<l not impress me with the conviction
there was any particular recklessness of expenditure to
indicate j^^eneral corruption of the electors. There was no
keepin^f of opeu houses durin<.f the period of the canva.ss,
no .such <f(Mieral treating' as would, under the provisions of
the En*,dish Act — which contains a special provision on the
suliji'ct not contaiiieil in our own statutt; — lie considered a
violation <jf tlie law, and certainly n(»ne that at common
law would he considered as evidence of Itrihi-ry to a\()i<l
the election.
It is said that the respoixleiit himself, when canva.ssiuif,
on three or four occasions stoj)ped at a puhlic house and
tht.'re ohtaiiied refreshments of some kind; at one place
uinp'r-heerand then soda-water: athir<l, a cigar, a fourth,
a glass of wine, for which sometimes lie paid, at others
those who were with him ; and that these have to he con-
sidered corrupt practices within the meaning of our sta-
tutes. I do not douht liut treating may be carried to such
an excess as to verge on hriltery or undue iiiHueiice at
common law, and in that way make it j)roper to set aside
an election. I do not think such excess was shown in rela-
tion to the respcmdi'iit here. The treating liy the jiarties
who canvassed for respondent was also referred to. It
seems to me that what they state<l on that point was, that
the canva.ssing was generally done m the evening by
and amongst a class of men who usually, as a mattei- of
coui'te.sy, when they meet ask each other to drink, and
when drinking it is u.sual also to ask such of their ac-
<]uaintances as are then present to diink also. It did not
a
S
106
I'UOVIN'CIAI- ELErTlOXS.
[a.i>.
]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<fani/ation two or three
weeks before the eli-ction, .say two wet'ks, ari' not j^entM"-
ally very huge, and if the average atti'vidance of connnittee-
men in the central and St. Andrew's Wai'd committees
united was 14 or lo pei'sons per night of the 12 nights of
two weeks, and they all got i-efreshments, the S4'i would
not pay more than the i-ate of 2o cents for each person,
which would not he very extravagant. Kven if there
were fewer persons attending, the amount would not seem
unrea,s()nably large. The amount of $'2'i expended in St.
John's VVai'd included the refreshments furni.shed to the
canvas.sers' agents, and connnittee-men, on the day of elec-
tion. The refreshments during the day of the election at
the polling places were distributed amongst all who were
then engaged, as well the Deputy Returning otiicer.s and
tlieir clerks, as the scrutineers and agents on both sides.
I think the decided cases .show this, the furnishing of
refreshments, not improper.
1H71.]
WEST TORONTO.
107
W
I'''-
AiKitlit r ;,M'(»im(l of oltji'ctioii was, that tlio liiriii^' of calis
aii<l (•ania;.,M's licforc tlic cU'ction (tliost- hired on the day
Itciiiif sid>)('<'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
candi<late wlio wislies to j)revent fi'aud — ^^reat activity
was re<(uii'ed ; to y'et over th(' ifround as speedily as pos-
sihle, and complete the organization with the least {)o,ssilile
loss of time, the u.se of carriaj^es an<l vehicles of that sort
seems to ha\'e heen ahsolutely nocessaiv ; and 1 cainiot
.say the nundtei' of jiersons employeil for the purpo.se, or
the amounts )»aid, are so extravae;ant as t(t convince me
that this expense was usee] with a view of corruptiiiji- tlie
parties employed or improperly inHuencin<; votes.
Exception was taken to the payment of canvassers who
were electors, and also for <listrihutinjj\ jjostinn' hills, \'c.
Mr. Justice Willes, in the Coniitri/ rosr {\ O'M. c^- H., 101)
uses this lanyiiaL,
But tl
ov»n ex
})ens(
s, anc
I tl
le candidate may pay his
le can«
lidate
may, ])ayin<,,' his own
expen.ses, employ voteis in a variety of ways; foi- instance,
lie may enniloy voters to take lound advei'tisiuLi; hoai^ls,
to act as messenifers as to the stati' of the ])oll, or to keep
the pollintf hooths clear. He may also ado])t the course
which appears to have liei-n adoj»ted in this city, that i.s
to say, the city or horouuh is divided into districts, and
connnittee.s are formed amongst the votei's tluMn.selves of
.selected persons, wlio <,'o aliout and canvass certain por-
tions of the district; and for these services these persons
are sometimes j)aid, and sometimes not paid. Now, un-
w
108
l'I{(»VIN( lAI- KI-KCTIONS.
[a.d.
\ it
II:
**4.
'*H
<jU('stl()iialtly, if the tliiid clausi' of tlif second section was
to be taken in its literal terms, the payment to canvassei-s
un<lei' siu'li eireumstances, lieintf as it is a |)ayment to in-
duce tliem to procui'e votes \ty means of their canvass-
would come within the terms of this clause, and would
avoid the election."
We have therefoi'e a test sui)j>lie(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 <lo away
witli every payment made l»y the candidate in the cour.so
of tlie election. And to come moie iieai'ly to the present
ca.se, it artbi'ds a tt-st whetlier this third clause was in-
tended to prevent every payment to persons for a.ssisting
the canilidate in olttainiuj;' the election. He refei's to the
Tamifiirth msr (I O'M. A: If., 7!)), when he had occasion to
re\iew the ca.ses in whicli tlie employment of voters had
come before the election committee. With re.spect to
canvassei's he refn red (p. 102) to the Lcm/nt/i rasr (Wol-
ferstan ^r Dew, 12!l), where "it was held that the .systeui of
<livi<lint;' the borouj^hs into Wii:'ds,an<l foi'miuLj committees
amonj^st the voters, and e;uj)loyinjLj them to stnid out can-
va.ssers, was not objectionable notwithstanding that thei-e
was a payment made to the canvassers foi- their services
in cama.ssing. It is havdly iiece.s.saiy to point ont how
exceedingly dangerous the adoption of that .systi'm is l)oth
in respect of the payment of canvasseis and also in respt^ct
of that which has been held lawful, viz., the supply of
fail' refivshmeiits to unpai<l canva.s.sers, whilst engaged
.actually, and not colorably, upon woi'k, and in like manner
of refreshments to committee-niiMi. It is p)-oper, whenever
this sy.stem is refenvd to as not bi'in<>' unlawful in itself,
to say that it exposes members to veiy great <langer, and
when it is merely colorable, it would avoid the election;
I refer to these cases to show that it is not everj' pay-
ment for the purpo.se of procuring a vote tliat can be lield
within the third clan.se of the .second .section.
You mu.st si low an intention to do that which is aiiainst
:iV^
1N71.]
WEST TORONTO.
10!)
tlic law lu'foi'c you lirin;^' the caHc witluu any of thoso
hinlily |M'nal clauses of the Act. " The eases i-eferrecl t(>
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, an<l that the color-
able eiuploynient <»f voters for the puipose of in<lucin;f or
enticiii;4' them to vote for the cainlidate who eiiH)loys
them, is Itrihery. On the same side of the (|Uesti<>n 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 <i)i/i/ luf
rvdsiin (if /he ■nmronduc/ nf /he to/era rmp/inied /he/ i/ mis iinf
riiii/iri</. The most remarkahle of these cases is the ('inii-
hrii/i/c nise. (Wolfei'stan and Dew, ri-S, 41 ) when Mi-. Deasy
(now Baron Deasy) delivered a leasoned judin'ment. There
is also the Lnin/irth ri..<v (\WMvv^\;\\\ ^ Dew, I2!l), where
the committei' decided that the system of organized cjin-
vassin^' ]iro\"ed to have existed at that election, accom-
panieil hy the payiiu'nt of the canvassers, was, tnider the
circumstances, leoitimate, thou<;'h payments were made to
the Noters who were employed in the course of the system.
In the J'j'i ■</(/)! ruse too ( Wolfei'stau and Hristowe, 7.0), the
connnittee declined to set aside the election on the u'rouiid
that the system had heen resorted to.
The 2(ith section of the Entjlish Parlianientarv Elec-
tiuns Act, iSfiS (similar to section -SO of our Act .*i4 Vic,
c. .S), j)rovides that "the ))rinciples, practice and rules on
wltich Couwnittees of the House of Commons have here-
tofore acted in dealing with election petitions, sliall he
observed so far as may be, l)y the Court and Judge in the
IK)
I'UOVINCIAI, KLECTIONS.
[a.d.
: I
\K.
%
;/'
h '•
v
cftM(! of oh^otion jH'titions uiulcr this Act." This directs
the Jn<l<;(! to act on the jji-inciplcs ii|)i)ii which rh-ction
coniniittccs have act(Ml when he has no li^ht from the
rnh's which his own |»rofcssional experience supplies him
with.
1 take it liie .Jn<l,t,'es liere are called upon to act on
the .same j)rinci])les ; and in adilitioii they aic hound hy
the d(!cisions of the liota .lud^c.-s in lMi;;land sitting; for
tlie trial of controvci'teij elections ini<ler acts similar to our
own, in the same way as we feel hound hy their deci-
.sions in I'clation to other lei,'al matteis.
In refi'rence to the sums paid l»y Mr. Hime to Mc-
Lellan, i\lc(,)uinn, McCJee, Mc( Jiath and Winiherton, the last
not tt voter, he states that these sums wercj ])ai<l to them
to cover their ex[)enses in canxassini;', \'c. ; Wimherton
got an additional S'> 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<(.<ie,\ O'M. Al H.,:i-S.)
The e,x[)endituro hy (Jraliam of the !?4() entrusted to
him, it is contended is not satisfactorily accountiMJ for.
In his evidence (iraham said the SiO was given to him as
chairman of a suh-conunittee ; he thinks therc^ were eight
or ten of tlu; suli-committee. Mr. Hime asked liini what
he thc^ught would he necessaiy foi' the usual expemlitui'o
in th(! east end ; he told liim \w thought 8+0 would do ;
he would ie(|uiri^ the money to give to canvassers to pay
their nece.ssiiry expen.ses ; all the members of the sub-
Cfwnmittee wei'c canvassers : Patiick Smith and James
Walsh, of Dummer Street, William Mulligan, McGaw, .Mr.
Gossage and Mi-. Ford, Aid. Dickey, and some man con-
nected witli the foundry ; lie thought he gave Foi'd, S'i ;
Mulligan, perhaps S4- ; McGaw, S2 or i3:{ ; Jas. Walsh, 67 ;
he said in con.setiuence of his living on Dummer Sti-eet, he
would want more ; is not sure he asked for S7 ;^ he thought
IN71.]
WEST TOKONTO.
Ill
that wouM l»t' lu'cossarv ; could not say wliy liis «'X]it'nsrs
wi'it' iiioif tliiin tin- man wli»» lived on ('iicr Howell Sticct,
Mcdaw; hf said lie WouM vote for M|-. (.'rooks liefoie lie
|iaid liiiii any money; helieved lie voted at the former
election for Mr. ('rooks; jj^ave I'atriek Smith 87 for his
ordinary expenses; he <lid not know to whom he paid the
remainder; never kept an account; did n.^t know he
woulil lie callefl to account for it ; -Mr. liime to'd him to
use the money in a fair, s(|ujire way, meaning' le. he umler-
stood, without treutinj;- or liiiliin<;, or any hnl for expenses.
On the Saturday ni^lit hefore the election, Smith and
li\an said they wanted to do all they i-ould, and would <lo
all they could. On the evenili;;' Itefore the election they
met at Mr. (Jo.s.say,'e's house ; they .said they j,,'ot on well and
Would he d )wn next niornin;;". Next mornin;^' \\ alsh came
and vote<l for Wallis. IJefore that he pretended he was
doiuL^ all he could foi' Mr. ('I'ooks. Smith .said he had
cauvasseil for them. He did not use u hook; he knew
all the voter.s. They hoth told Mr. (iossa^^c they weii'
doini; all they could for him. He paid ordinary expen.ses
ill ,t,^oin<4' ahout canva,ssiny; himself; cant say how much
lie expended : thinks it possihle he may have spent !i5l.")()
a nijifht. He say.s he may have spent 821 in treatine.
When he j^ave Walsh and Smith the money he helieved
they W"!'e honestl}' on Air. Crooks' committee, and in-
tt'Uiled voting for him. He paid them the money without
the sliiihtest intention of inducine- them to vott^ for Mr.
Crook.s. They told hiin liefoi'e ho gave them tlit> 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 <lid not discov«.'r that Walsh was
against them initil he voted on the morning of the (dec-
tion for Mr. Wallis; Mr. Go.ssage on that vvi.shed Smith
.sworn, and he refused to take the oath ; the others to
whom he gave the money had heen working a w(;ek
hefore for Mr. Crooks, as he knew ; the money was given
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I'KOVINCIAI, KI.K« TION'S.
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tlicni witliout tlif sll;,'litrst ijitciition of influfuc'in^' tli»'ir
v»»t<'s; In- was tul<l at tlic iM'^riMiiin;^ not to siinul any
iiKtiiry for that purpose. On it'-cxaniiiiation In- .sai<l tlii'V
never ;;ave an account of the expemhture of the nu^ncy,
an<l he nc\fr askeil them foi* one.
Mr. (iiaham's acciiunt of how he (lisposed of the money
phu'e<l in hishanMs i.s far from .satisfactory ; hut as ah'ea<l\-
intimateil in a previous case, 1 ilo not, in the present jrtatc
of th ' hiw on the suhject, feel at lilterty to infer from th.-it
fact al<;ne that he has sj)ent it for the pui-pose of ltril•ill^•
electors, or ftther corrupt practicfs. The money, I h;isr
no <loulit, was ;,Mvt'n ])im in ^ood faith, t(t he expeinli .1,
pi'operly ami ie^niily, for the |mi*po.ses ol' the flection;
whether he has spent it iill or not, the evidenee does not
satisfy me. Hut I have to ilecide whethei- the money has
heen spent f<»r hrihery. As to mII the persons ohjecteil to,
to wliom (Iraham paid the money. I do not think the
evifleiice points to any, as to whom, on the pi'inciples on
which I IhinU I am to decide this cast', I can say they ha\c
heen lirihed. The oidy two ahout whom the most serious,
discussion lias taken place are Walsh and SnJth. 'i'he liist
point is, that the money was paid to tliem as repre.M'ntinL;-
a pai'ticular religious denomination, to iidlueuee other
voters helonninn' to the .same chuich as they did. That
may he an ar^iuneiit to .show why the money was paiil to
them, hut if the employment of a voter hoiia Ji'lr to canvass
is not illee-al, ami the cases show it is not, the mere fact
that such voter has skill or knowledi^c ami capacity to
canvass, would not make his em])loyment illeujal : nor
would the fact of the canvasser liein^' of the same trade
()!• Iiusiness, or of the .same i'aid< in life of a class of elee-
tois. make such employment corrupt. Jf they were suh-
|ects of Her Majesty who only un<lerstood the French or
Celtic lan;_i,ua,n'es, employing- a canvasser familiar with
those laneuay;es, could not he impioper. Then why.
hecause he happens to he of the same country and
reli-^ion { In the BnidfonI rasr (1 O'M. v^ H., :i'2), it was
proved that a nunther of persons wliu were known to
ni
IsTl,
WKST ToKONTO.
ll:i
Imvt' iiitliU'iK'f with tin- Irisli votci-s, of wliom tlicrc were
iiuiiiv ill tilt' litd'tuit^li, wt'if |iuiil on Ix-liull' of the rcspoiul-
ciit to use tlicir intlufiicc with thi-sc votiTs to icstrain
tlniii IVoiii Noting' aji;uiii.st the rcspoiiilcnt. liuron Maitiii
Mii'l: "'I'hrif wcif )i MUinhcr of votcis whost- suppoft it
was tlifiiicil (Icsiroiis tt» olituiu. lunl iiionry was j^ivcn
til a ffW in'isoiis to cxcrt'is*! their iiilhiciu'c on those pcr-
>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<j aroinid, and tlie
whole nature of the evidence, satisfies me that Graham
was convinced they were ,supportin;j,' his candidate. He
uudouhtedly thouj^lit they were proper pcr.sons tu employ
tn canva.ss on Duinmei' Stn;et, and considered the oh.serva-
tion as to money when knocking,' around in election times
meant when <foin<j ahout to solicit votes (jiaham says,
iM't'ore lie j^ave them tlie iiionov tliov toM him thev lijul
Im'cu working for Crooks, and doing all they could, and
wanted a little money to pay expenses, and he gave it to
them. It is suggested the amount indicates more than
would be neces-sary to pay the expenses ; i^5 ^vas given to
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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 an<l Walsh were hiibed, though,
in fact, they may not have rendered .services for the money
they received. Their services were expected l»y (irahani
to he lendered when he paid the money, and they were not
icndei'ed by ivason of tlie viisrondud of the votrrs nnployrd.
(See reference to the decided cases on this .subjt'ct already
Inferred to in Mr. Justice Willes" judj^nnent in tlie Tam-
irorth case, 1 O'M. L H., 79).
These observati(jns will apply with equal force to the
case of Georoe Evans.
Mr. Hime, the gentleman who gave tlie SIO to Evans,
gave his evidence in a frank, straightfoi'ward manner,
and .seemed to me to be stating the tmth. He .said he,
was to take charge of the west end, and employ otheis
to iissist him. He told parties when he gave them money
that none of it was to be expended in treating or influenc-
ing voters, but it wa.s to pay their own personal expenses.
1 do not think under the.se circumstances I can infer
liiibery. The impression (m my mind is, that it was given
to Mr. Evans believing him at the time to be a warm
friond of Mr. Crooks, to he expended in paying propt-i'
c.vpenses whilst he was endeavoring to secure Mr. Crooks"
return. If Mr. Evans, i'i.stead of expending the money
foi- that purpose, kept it him.self, I cannot infer from his
inisoonduct that it was given to him as a bribe, and not
foi' the services he undertook to render.
This brings me to the last case of bril)ery — James
Landy.
Landy claimed that there were three dollars duo him for
diiving for Mr. Crooks at the former election ; that he
was employed by Mr. JatFray, and when he applied for
the pay some weeks after the election, Jaffray .said he
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PROVINCIAL ELECTIONS.
[A.D.
ought to have applied l^efore ; that tlie accounts were
made up, and he could not pay him. At this election, wlien
spoken to to vote, he said he did not think he should vote,
and was evidently putting forth the $8 that were due
him as a grievance. There was evidence that Mr. Mc-
])onald, wlio acted as treasurer of the conmiittee for St.
John's Ward, told him that wouW )»e made right, and
finally Ryan, a clerk of Jatfray's, who was the cliairmaii
of tlie connnittee of the ward, gave him his word
that he would pay him; after that he voted, and some
week or two after the election Ryan paid him, and the
amount so paid was entered in the account which Jaffiay
had against the committee for refreshments furni.shed to
scrutineers, connnittee-men, etc., in 8t. John's Ward on
tlie election day already spoken of; it was an isolated
fiitrv : for James Landv, S-i. The refreshments wei'e tifot
1>V 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^' ]'ecalle<l, said tliat after the convei-sation .said to
have taken phice in Landy's house, when he was pre.sent,
ill wliicli it was .said lie intimated to Landy that his claim
f(ir the piior sum would be made right, he ha<l seen Landy
and told him positively that he should not and could not
give one cent of his claim to gain the election ; he .said
that when he was settling up the accounts ahout the elec-
tion, he retpiested Mr. Jattra}* to have his account ma<le
u]i, and when he came in in the evening the account was
iiiadt' up ; the amount was menti(med, i?2(l.2() ; he pai<l it,
lifHeving it was all right. At that time he did not know
the item of " pai<l J. Landy S-'i," in the hill, was for paying
tlie old claim Mr. Landy had ; alxmt a W(iek or two after
he cxaiiiined the bill, and .saw the chai'ge of payment of
s:^ to Landy in it; lie did not take particular notice of it
then.
I do not think Ryan can properly be consi<lered an
.igi'iit to bind the respondent by his acts. He was not
iiiiployed as a canvasser generally by any <me, ami thcs
only ])ei'.son he was asked to canvass was Mr. Brown-
.Ml'. .latt'ray asked him to call on Mr. Bi'own and solicit
his vote for Mr. Crooks; but Mr. Brown ha<l promi.se<l
Wallis, an<l voted for him. This appeal's not to bring
Rvan as an au'ent within any of the views of au'encv
laid down by Mr. Justice Willes in the Bodmin cam
i\ O'M. .^^ H., 120): " It might be limited to the case
of a person who was employed to canvass a particular
voter or particular voters only, nn<l then that person
would be one whose authority being limite<l to such voti'r
or V(;ters, his illegal act in respect of others could not
att'ect tiie member, because he would Ik; only an agent in
that particular limited capacity." He must be an agent
employed by a member to canvass. There is no prett'uce
that Ryan di<l in fact canvass generally. In the West-
ininsfer case (1 O'M. & H., 9G), as to the conduct of the son
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118
PROVINCIAL ELECTIONS.
[A.D.
H.^^
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of one Hotton, Baron Mai-tin said : " His niay Ijc a
strong case ; but, altlumo'h yountr Hotton scenis to have
been active witli regard to the election, I cainiot hoM
tluit an act done by him because his t'at'ici uas a pei'son
for whom the respondent wouM l»e responsible, would
make young Hotton also ;" I do not think ivspondent
would be responsible for the conduct of Ryan, even if he
had been more active ; the only (juestion is whetlier re-
spondent can be held responsil)le for Ryan's act because
McDonald paid the money, an<l therefore latitied Ryan's
act and agency in making the promise. In the I'umu'orth
ruse, Justice Willes said : " But the rule is plain that a rati-
fication after the act is equivocal t(^ an authority given at
the time. Tlie rule is also plain as limited to the case in
which the })i'incipal, the person sought to be made liable
as principal, is ac(juainted with the character of the act
a!; the time when he ratifies." Wrs McDonald at the time
he paid the money aware of the reason and puipose for
which Ryan had paid it to Landy ^ He says he was not :
tluit when he paid the account he did not observe that it
was there : and when he saw it about two weeks after-
wards, it did not occur to him it was for a payment of
the kind it turned out to be. There is nothing to show
that he had been informed by Ryan of the nature of the
services for which Landy had been ])ai<l, nor is tliere any-
thing t(^ .show he was aware that Ryan had had any inter-
course with Landy to induce him to suppose it couhl have
been paid for any objectionable matter. It is suggested
that it was strange Mr. McDonald did not inipiii-e of Mr.
Jatfray in paying the bill what all these charges were foi'.
The answer he gives is that he had every confidence in
Mr. Jaftray, that he w(juld only })ut down wliat was right,
and Ml'. Jatfray he supposed, knew, being chairman of the
committee, what was required, and that he had confidence
he only got tliat, and paid foi- wh.at was got. As to this
case, I do not think I can properly set aside the election.
The remaining (piesticm is as to tlie hiring of convey-
ances by the respondent to be used on the last day of the
'. I !
1S71.]
WEST T(>1U)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 hiiin<r of
teams and vehicles to convey electors to and from the
polls, and the payin^- of lailway fares and otliei- expenses
of voters, he or he not according to law," (h'claivs and
enacts " that tlie hiring oi' promisinj^f to pay, or p}iyin<,'for
any horse, team, cari'ia<,a', cab, or other vehicle Ijy any
candidate, or hy any person on his behalf, to convey voters
to or near, or fi'om the i)oll, or from the neighborhood
thereof at any election, etc., etc., shall be illegal acts."
[The Chief Justice then refen-ed to Mr. Cattanach's
e\ idence on this point, Ijefore referrivi uo, and sai<l] :
The only ca.se I liave met, in which a circumstance at
all .similar is referred to, is in the TAmgford vai^c (2 O'M. &
H., 14). It was prove'd there was considerable dilHculty
in providing conveyances for voters living at a distance
to go to the poll, antl that certain voters who owned cabs
were induced to lend them foi* the conveyance of other
voters, and wei'e paid im- so doing ; it was contended that
these payments to voters were colorabhi payments, and
the reward to them for voting or to induce them to \'ote.
The learned Judge (Fitzgei'alil), after stating that he had
come to the conclusion that this was not a colorable pro-
ceeding, .said : " I think it was a step of a very dangei'ous
character; it l)rought the parties t<^ the very vei'ge of
the law, and it would have re([uii'ed veiy little, if pay-
iiients were actually ma<le, to come to the corclusion that
they were made to influence the vote, and so to void the
flection on the ground of bribery."
if the money had been paid in the ca,se before us, no
dou1>t the inference against the respondent would have
been much sti'onger ; but acting on the principle before
mentioned, I do not feel justihe<l in holding the proceed-
ing to have been colorable.
Then as to the hiring of the carriages at Bond's for the
use of the conunittee-men and canvassers on the day of
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PROVINCIAL ELECTIONS.
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the election. The.se earria^jfes were not hired for the con-
veyance of votei-s to the poll, an<l insti'iictions were given
to the (li'iver.s that they were not to he ustifl ; Imt from
the evidence of Ryan, the one sent to St. Jolin's Ward was
used for that jiurpose most of the day. He said lie did
not think Mr. JartVay mentiontMl that tliey were not to
take Osier in liis carriage, hut he did hear him say tliat
no voters were to be taken to the polls in hii't'd huggies,
carriages, or cahs. The carriage was one of Bond's, l)Ut
he undei'stood it was the chairman's carriay;e. JafiVav
himself was not asked anything ahout votei-s heing
brought up in the can-iage.
I cannot infer that these carriages were coloral)ly hired
for the purpose of bringing up voters; that one was so
employed more or less is evident ; but it is not clear that
it was so used with the as.sent of Mr. Jatt'ray, and there-
fore such an illegal act on his pa'rt as would avoi<l the
election, as his hiring one carriage oi' using a liired one for
that purpo.se would have that etiect.
I am not prepared to hold that the election is voiil
on the ground of the employment of these carriages by
the respondent on the morning of the election. In the
SaJfonl erne (I O'M. Sa H., 188) it was proved that a con-
siderable numl)er of ca1)s were hired foi- the respond-
ents, not for the conveyance of voters to the poll, but for
the canvasser's to go into the places where the voters
were at work, the canvassers then walking up to the poll
with tlie voters. It was not pi'oved (although it was
alleged) that in many instances voters were conveyed in
the cabs. The foui'th allegation in the petition in that
case was that the respondents did, l)y themselves and
"t^her per.sons on their behalf, hire and engage and pay
• ""••y for and on account of a imml)er of conveyances for
t' pur|)ose of conveying voters to the poll, and which
'•\'r. ■'- 'i.se<l for such a purpose on the day of the election
ir i , Ir interest. In giving judgment. Baron Martin said :
" I have already stated, if I considered the allegation
proved I should reserve the point for the Court of Com-
icsyi.i
WEST T(lUO\TO.
121
inon Pleas; but after the evidoiice of the re.spon<h:'nt, Mi-.
Cawley, and others, I couM not state as a fact that tlie
conveyances wen; liired for tlie purpose of conveying,'
voters to the poll."' Bai'on Martin said, in the same case, in
reference to section 'M') of the Enj^dish Representation of
the People Act, l(S()7, "it showed as plainly as possiljlc
that the intention of the Le_t;'islature was that voters should
either walk to the poll or <^o in their own cari'iajj^es. The
Le'dslature has made most strinu'ent i)rovisions as to
having polling places in the most convenient phices in
boroughs for every voter. The intention is to prevent the
hiring of conveyanci^s for voters, and to provide that
peo[)le should walk to the poll or go in their private car-
riages, and it .seems to me it is the same thing whether a
man rides in a private carriage pnjvided for him or comes
in a hired carriage." Our statute is not in terms like the
.section to which he was referring, and I am not pi'epared
to say that a man who has a carriage may not, if he chooses
,so to do, take any of his neighbors to the poll with him,
provided it is not done coloral)ly, and with intent to charge
for it, or to bribe the voter. As to the hiring of the cai'riages
liy Mr. Crooks, I cannot find, as a fact, that he intended at
the time of the hii'ing, the\' should l»e used to convey voters
to the polls, or that Mr. Jatiray so intended to use them.
There are two ca.ses, Thompson's and Halligan's, referred
to. As to James Thomp.son, he at first seemed to be act-
ing for Wallis, but afterwanls changed ami became a
member of Mr. Crooks' committee. His own account of
liis reason for changing is not satisfactory, and his state-
ments afterwai'(ls made to Mr. Dodds were not of a
character to induce any one to siippose that his motix'es
were purely patriotic in changing. Mv. Cattanach stateil
tliat he was not aware that Thompson had l»een acting on
Wallis's committee until he heard him state it in his
examination. The first Mr. Cattanach knew of him was
as a professed supporter of Mr. Crooks. He never spoke
to him about tjcettin<x his vote, ov u'ettinu" him to canvass.
He promised him nothing l)efore the election, and when
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[A.D.
ho paid hiin the money lu; reprosontefl tliat ho had l>oen
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, <hd the respondent really desire to obey
the law and cai'ry it out fairly, and did tho.se for whose
acts he is responsible desire to do so. I have come to the
conclusion that they so intended. Mr. Crooks himself took
a good deal of trouble to have the law explained and
circulated amongst the electors generally, and I have no
doubt desired to obey it as he understood it. Mr. Cat-
tanach I have no doubt was influenced by the same
UiOtivos, and I think they acted in this view, and the
subordinate agents also, so far as not intending to resort
to illegal practices. I cannot say but many of the thing.*
■1S71.]
WEST T<)R(»NT<>.
12^
<|()in' (lurinj^f tlic canvass an<l tlu- election, brought out in
till' in(|uiry, create* 1 a great deal of hesitation an<l douht
ill my mind how far T ought to consider these acts color-
;ilile or not.
It would he very easy to dispose of this and other
similar cases, whenever anything (|Uesti()nahle may arise,
to take the most unfavoralile view of it, and at once con-
sider that any act that was at all questionable was
evidence of such a coi'iupt practice as would avoid the
election. Take the case, for instance, of money placed in
the hands of an agent to disburse for ])roper legitimate
pui'poses; when calle<l on to explain what he has done
with the money, if he fails to tell how he has spent it all,
to wh<}m he gave it, and for what purpose, then that I
am to infer he spent it for bi-ibery, and theivfore set aside
the election. In consti'uing a statute of so penal a char-
acter as this I do not feel at liberty to pursue such a
<'()urse ; in fact, as already intimated, I consider myself,
uiidei- the words of our statute, called upon to act upon
tlie principles upon which election committees have acted
in relation to the.se nuitters, and that 1 am bound by the
decisions of the Rota Judges and the Courts, in the .same
way as I woiild be in disposing of cases of connnon law-
In my judgment in the East '1 orvitfn nn^r (ft) I have cited
the strong language used by Baron Martin in the Wlgav
<'inc, where he refers to the necessity of establishing the
acts to un.seat a candidate to his entire .satisfaction,
though nmch may liav'e l)een done at the election of
which he disappi'oved. The doctrine .seems to be well
t'stabli.shed through most of the cases, that to upset an
election a Judge ought to be .satisfied that the election
was void, and that the i-eturn of a member is a ,sei-ious
niatter, and not to be lightly set aside. In the Lonilon-
(/irn/ case (1 O'M. & H., 278), Mr. Justice O'Brien .said :
"The charge of bribery, whethei- by a candidate or
liis agent, is one which should be established by clear
and satisfactory evidence. The consequences resulting
(a) Page 9t), ank.
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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<l<;v
upsets an election lie ou<,dit to he satisfied l)eyond all ijouhr
that the election was altojL,'ether void. In the next place the
4(lth and 4!)th sections of the ('ontroverted Elections Act
1.S7I, iin[)ose fui-ther and severe penalties foi" the; oti'ence,
whether eonmiitted hy the candidate or by his aj^^ent.
Mere; suspicion, therefore, will not ht; sufficient to (.'stah-
lish a charge of Iti'ilirry, and a Judge in discliai'ging the
duty in»i)osed upon him hy the statute, acting in tin-
doul»le capacity of judge and juror, should not hold that
cliarge estal)lished upon evidence which in his opinion
would not he sufficient to wai-rant a jury in finding thr
charge proved. There may he cases wdiere there is
evidence to go to a jury, and on which they are to decide
as to th(! effect it has on their minds and come to a
conclusion, hut in which if the Judge were sitting as a
jui'oi' he would find for the defendant ; and I appiehend
in such a case he ought to find against the hriherv.
Baron Martin in the Westminister case (1 O'M. & H.,8n),
laid down the doctrine that in those cases the Judge ought
to he satisfied beyond all reasonable doubt. In that casi'
€209 were expended in paying shopkeepers at the rate of
7s. a week foi- allowing l)oards with posters to remain in
front of their windows. Incpiiry l)cing sought as to that
point, he said, p. !)0 : "For me to decide that the respond-
ent is incapable of being elected by reason of these boards,
I nuist be satisfied that \vhen these boards were issued there
was in the mind of the respondent's agents the intention
that the payment in regard to them was to be, not for tlie
purpose of compensating the persons for exhibiting them,
but to be a benefit given to these persons in order to in-
duce their votes. That I am not satisfied of." I refer to
these cases to show the necessity of a clear case being
established before an election is set aside.
n71.]
WEST TORONTO.
l-i.')
1 have disposed of the »nu'stion as to tlu> riiiployiiiciit
ol'cal)S and teams on the nu.'rits, without deciding' whether,
fur the mere e;npli.yin<f of a vehicle to convey voters to
the poll, I should oi'der an election to be set aside. I
have no douht there may he such an employniejit as wouhl
iHiiduce that ertect, and Haron Maitin, in the case already
irferred to, stated if it ha<l liecome necessary to decide
lliat point he would have referre<l the (piestion to tlie
('i)Uitoi' (."ommon Pleas, though tlie En^lisli Act l)y no
means in terms implies that tlu- violation of it wouM set
aside the election.
The course pinsued in this election, and also in the
I'jist Toronto election, of placiny' money in tlie hands of
agents or committee-men, without takini-' tjie i)recaution
of seeinj,' that it was all [)ioperly e.\i)ended accordin<.f to
law, if continued, will prohaVily induce Judges hereaftei-
to take the view most unfavoiaMe to tho.se who thu^
place the means of bribery in the hands of suboidinate
a;,'ents. Tlu; employment of electoi's as paid agents of
any kind is always ha;^ardous, an<l nnist often, if continued,
load to fraud. Many of the paities so employed, it is said,
were paid merely their expenses. If it is expected that
.bulges ai'e to decide that payments made for that pui'pose
arc; to be recognized as honajidr and not coloral)le, each
person should be prepai'cd to show and prove what his
expenses are that he has paid, otherwise the ffudge will
lie likely to infer that he is paid for his services besides.
Hut if paid for services as canvasser, scrutineer, or other
services of a similar character, ho does not .seem entitled
to vote under sec. .'J of our statute (}\i Vic, cap. 21). 1
should have felt very much embarrassed if 1 had been
culled on, in the event of a scrutiny, to decide how many
of these voters who received pay foi- their expenses satisfied
me that they had really expended the sums they had
received. I have not felt warranted in taking an unfavor-
able view of the omission to show the expenditure of all
sums placed in the hands of subordinate agents, because
the rule has not obtained in this country that prevails in
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I'ltUVlNCIAL EI.KCTIONS.
[A.D.
Kn;,'liin<l, of liavin^f all thcHf payiiiciitH nuulc tln'ou^'li tlic
liarulsof an a^^'ciit, ami wIutc parties uinli-istaiKl that it is
necessary to show with icasonalile certainty, l»y accounts
in detail, the uniounts they have actually ex|>en(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<lituresof money
(lurin^f elections at all .satisfactory, the same ri^id care
and I'esponsihility shouM he denumded in its e.\{)enditures,
and in the j)roduction of xouchei-s therefAr, a.s ai'e re(|uiied
in the ordinary husine.ss transactions hetwi'cn man and
man; that i)ecau.se a man is a candidate at an election,
he shall not Im^ com[)elled to make a profuse e.Kpendituie
of monev to satisfy the appetites of a few cormorants,
wdu), undei- tlie pretence of heinn; his fi-iends, may he reallv
ficecinj,^ him luider pretence of payinj.^ out his money foi-
the le<fitimate j)urpo.sesof his (flection, or others who may
be feastirjjLi; at his expen.se un<ler the pretext of dovotiuL;-
tliemselves to lus .services without pay oi- reward.
Tlie getting cabmen to volunti-er tlie use of their cabs
to bring voters u{) to the [)olls on the election day is
another practice wliich, if followed up, will Ixs likely to
lead to great abuse. Here I have no doubt that Mr.
Cattanach and the other gentlemen wdio intimated that
this cour.se might be adopted, honestly intended what they
said to the owners of cabs, that tliey would not l)e paid for
their u.se. But did the cabmen themselves l)elieve that
was Jmndjidef Every one of tliem, 1 belice, .sent in bills
claiming pay foi- the.se day.s. Jt is true the payment of
these bills was refu.sed ; lait if the practice l)e persisted in
it will be difficult to ju.stify it. The ([uestion will alway.s
be open for discussion, and the previous employment of
these parties, and the rate at which they were paid, will be
incjuired into to see whether what seems a free otfer on
their part is not in truth merely working for the pay
they have received, or expect to receive. As to the hiring'
of carriages for the use of connnittee-men, if many of these
are engaged, and they are really used for earryinjj voters,
I Ml.]
WKST ToUuNTo.
l-2<
•InMiuli tlif inuty liiriii;;- tliriii iiiiiy not s(» iiitcml, thai w ill
lie niifij t"(»r "liscussiiiii. It is of course very "litHcult, wIh-m
(wiii'iii^cs (lie stiiinliiiy ill tlif \iciiiity of ii |iolliiiL>' 1 tli.
t'nr canvUHsi'rs to avoid taUiii;,' tli' m to l;(> nrtti' sotcis.
aii'l still iiioic Witlicult to a\oi<l unIu;;' tlicni to liriM;^' up
the vott'is : jiiul it' that course should he j)Uisu('d to any
cxtfiit hcicat'tfr. it is proliahlc that the iiift'icncf would lie
drawn that the ri-ason why tlu-y were sent was not lor
flic liiiiid Jidf use of the coniniittcc-nicn, hut to facilitate
the liiinn'inn' up voters, which is a;j;ainHt the law.
The anioiint ex{)ende(| at this election seems lai'jue—
aliout 8l,iS0(), iiicluilini^' some accounts not yet |iaid; a
wry laii^e portion of the expenditure — nearly .':<.S()() —
appears to have heeii foi' ))rintin;j;, advertising; uinl sta-
tionery; yet tjie ri'inainini;' [xirtion strikes one as laine and
deinandinn' iiKpiiry.
It may he as well here to refer to tlie reason for the
rule wli\' candithites should he made liahle for acts done
hy their ajj^ents. Mr. Justice lUackhurn i I'fers to it in tlie
Tiiuntnn r-isv (I ( )'M. Ar H., |S4) ill these Words: " The
rule of parliamentary election law, that a candidate is
responsihle for tlie corrupt act of his a<;'ent, thoUj^'h lie
himself not only did not intend it or authorize it, hut
hiina jidc did his liest to hiiuler it, is a rule that must at
all times fall with «.i;reat hardship upon particular [H'rsoiis.
But I may just mention the considerations which, no
douht, leil the common law, as I may call it, of Parlia-
ment to estahlish it. Corruption, as we all know in,
practice and in fact, is seldom or never iloiie hy the
band of the candidate. The two modes in which it was
fouiiil in practice that corruption was carried on were these .•
persons were put forward to do all the work of canvassin,i;'
i\\\([ conducting an election, and tliese persons acted cor-
ruptly ; but the candidate purposely kept himself out of
the knowledge of anything about the matter, so that he
might have the full benefit of their services; and were it not
for this rule which has been i stablished, he would not
suffer for their misdeeds. That is one of the great reasons..
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PROVINCIAL ELECTIONS.
[A.D.
Another groat reason would he that no doul»t people were
jnit foi-ward as to whom the candidate was cai-efully kept
from knowing they were spending any mono}', or doing
anything, with the notion, according to the loose morality
that prevailed in election matters, that when the time
for petitifjning was past, those persons might come to him
and say, ' I did spend that £1,000 for you upon the elec-
tion ; of course 1 did not tell vou ahout it, oj- sav a word
ahout it at the time, but now you are hound in honor to
repay me that £1,000 of which you had the benefit;' and
which, in point of fact, the can lidates did feel themselves
bound in honor to pay. This, therefore, was another
reason for the parliamentary law declaring that the
candidate should be responsible for tlie act of his agent."
I think, under the decided cases and the rules applicable
to these trials, that I ought to hold that the respondent
was duly elected. I am of o])inion, however, that it was
and is for the interest of the public that the matters
brouglit forward in this case should have been iiKjuired
into, and I .shall not allow the respondent any costs. The
respondent him.self sul)scril)ed a large sum of money, ami
was aware that a considerable sum was being expende<l by
others, and he himself directed the payment of any further
amount that would be required. He was therefore cog-
nizant that these expenditures were going on, and exercised
no supervision over them, and I do not feel inclined to
draw any distinction as to costs in relation to any of the
mattei • contained in the petition.
I direct that each side bear their own costs.
(5 Journal Leg is. Assem., 1871-2, p. 11.)
1«71.]
UROC'KVILLE.
1-29
BROC'KVILLK.
Before Chief Justice Hagahty.
Brock VI 1,1,1:, .'Hlh to-imh Jam, 'ith awl Htlt JnUj, 1S7I, <ini( Olft
./(tiiiKif!/, tS7J.
Samuel Flint, Petitioner, v. Willia.m Fitzsimmons,
Respondeat.
Scrufhni — I'rojf rtij ijunl[li<'nt'vin nj \'ol( /•■•'-■-Aliiiis.
Wliero a voter, properly assus.suil, wlio was aocidi'iitally omitteil from
the Voters" List tor polling sulidivision Xo. 1, wheie his i)ropeity lay,
ami eiitei'ed in the X'uters" List for suh-ilivisi(jii Xo. '2, votuil without
(|Uesti()ii in Xo. 1, thougli not on the list, his vote was helil good. —
WiirKim Liffli'.i futf.
A.'s uaiiie appeared on the Assessment IJoU and Voters' List as owner,
hut no property appeared opposite his name : just helow A.'s name,
the name of H. was entercMl as tenant, w ith eertain propi'i'ty following
it, hut H. s mime was not luacketeil v, ith A. "s. l'",\i(lenee m as admitted
to show that A. owned the property next below his name, for wliieii 15.
his tenant was assessed us tenant, ami A.s vote was hehl g(jod.- ./((///'s
linhi r's riitf.
Tlie widow of ail intestate owner eoiitinuiiig to live on the property w ith
her eiiildren, M'ho own the estate and work and manage it. should not,
till iier dower i.s assigneil, he assessed jointly witli the joint tenants,
iiur should any interest of hers he dedueteil from the whole assessed
value. Where, tlu'refore. four joint tenants and sueh doweivss oecupiei I
property assessed for •'<!MJO, the joint tenants were held entitled to the
i|ualiticatioii of voters. — Jii'inunh (r'i/rni/'.-i rti/r.
Where a husliand liad possession of a lot for whieh he was asses.scd ,'i.s
oeeU]iaiit and his wife as owner, liiit whieh l>elongeil 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-
.<o/('.< rati'.
Where a father was liy a verbal agreement "to have his li\ ing oil' the
plaee," the son being owner and in oeeupatiuii with the father, the
lather was not entitled to \otti. -ShiiikiI H'iZ/.s
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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<lings to obtain a certificate of
natiii'alization from the Ctnirtof (jhiarter Sessions, was held notcjualified
to vote. - AlmisDii /iiiroii'i mtf.
Nor was an alien, wliosc fatlier had taken the oath of allegiance on
obtaining tlie patent foi' his land iindei' !) (Jeorge IV., e. 21, (jiialitied
to vote, -(n'linjr ///iili i/'s rii/i'.
The evidence that the parents of a voter had stated to such voter tluat
he was boin in the United States, but tliat his father was born in
Canada, received, and the vote held g(jod. -.S(7'^>■ 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'e<l the name of James Bakei' as owner,
and a blank o[)posite ; hut on the line inniiediately under
was the entry, Benjamin Leviston, tenant, E. h 80, 10,
no l)i'aeket connecting the i-ntries.
Counsel for the respondent proposed to call evidence
to explain the entiy, Avhich ^vas ohjected to hy the
petit itjjier.
The CiHKF JrsTU'E rule(I that evidence couhl he given
to e.\[)lain the entry, and to show that the v(jter owne(l
the ))roperty next l>elow 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 <ilLK(»V's VOTE.
Jnrnuji/i ('lilrnji : 1 live on the property. It belongs to
1110 and my two bi'others. The assessors put mother's
name down as ownei'. Father died one yeai' ag(j last
l>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<l otf — I, William, Joshua, and my sister Mary.
Three are away. No assignment of dower has been
made, or anything done aViout dower. Motlicr leaves us
ti) manage the farm. I am assessed as occupant.
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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 ; an<l as the
property is sufficient to give a ([ualitication to foui', the
\'ote is good.
THO.MAS WHALEYS VOTE.
Thomas [Vhalcjj : I voted on number sixteen Elizabetli-
town. I liv^e in Yonge. I own part of si.xteen in the
fourth conce.ssion, but can't desci-ilje the part. The south
end is the front. It is the I'ear part I own ; about seventy-
five acres. It is m^' wife s pi'opei't\'. No one lives on it.
We were married in SeptemVjer, I <SGI). She lived in Yonge.
Never lived in Elizabethtown. She was the widow of
Toxton. Ho die(l intestate ami li-ft foui- daughters. I
worked on the ]jlace in l!S7(). It is meadow and pasture.
I put up some fences, picked oli'stones. This was in June,
part in A[)ril. Got the hay croj) off in July. I was
.i,sse.sse<l as occupant, she as owni'r. 1 am not sure how
my wife got it. I did .statute lab(jur and paid taxes.
Hacjartv, C. J., held the vote good.
EDWARD LESLIES VOTE.
Ed.iraril Lrs/ic: I live at Prescott. I voted on propei'ty
on Buell Street. My wife is a part ownei-. Her father
bought it, and died inlestate five ^'ears ago ; left two cliil-
di'en, a son and my present wife. He ha<I a daughter, who
died leaving childi'en. I am assess( d as owner.
(Jr(i>i><-('.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 <lie(l after death of my
first wife. I receive all the lents and profits. Aly
brother-in-law never claimed or got anything. My wife's
mother is livint;. I sometimes jjave her .somethinu;. The
assessed value is !?700. I have received the rent for five
1S71.]
RROCKVILLE.
138
years. During all tliat tiiiio iny lirotliei'-in-law has never
claimed oi- received any share of rent. I liand over the
whole to my mother-in-law. He knows I pay all to her.
She o"ives most of it to mv wife. She does as slie likes.
I would not question hei- as to it. He has been often down
and knows all about this. The eldest child by Hist wife
is ei'diteen. There is one other younger; both are alive
an<l always live Avith me.
Haoakty, C. J., held the vote bad.
JAMES CALDWELL'S VOTE.
James CaldunJl : I live Avith my father on numbei- six,
seeond concession. I am thir';_y ; a single man. I work
the place. Father gets his .share, i.e., his living. Our
bargain was I .should work the i)lace, give him his living,
and I have the rest. This was made nine years ago
Father works at his trade in Brockville, coming home
every Satuixlay night ; he does not do any of the farming.
Mother and sister and tliree brothers yomiLjer than me
live at home. Twt) of the boj's work at fathei-'s trade. T
have had surplus profits. There was a del)t on the farm
when I got it; it is pi-etty nigh cleared ott' it; part of
the profits went to pay it. I have been seven or eight
years on the roll. Sometimes I pay the taxes ; sometimes
my father. He was to pay the taxes ])art of the time.
No bargain made to any account. I occasionally worked
a few days elsewhere ; the place did not keep me in work
all the time. Last fall I told collector that father was to
pay taxes ; 1 afterwards paid them myself. I dare say
father will repay me.
Gross-eoyrniincd : I could do as I liked with all that
came from the place. I was not boun<l to ])ay oti" tlie
debt; no time was fixed. I suppose father could turn me
aAvay.
Hagarty, C. J. — T hold the vote good.
JOHX A. MOORE'S vote.
John A. Moore: I live on east half seventeen, in the
fifth concession. I live with my father. [ am twenty-
;r
M
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I, _
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' 1
1.S4
PROVINTIAL ELECTIONS.
[a. I)
l*sai'
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nine. He owns it. I nwulc a liin<j,iiiii ; J was to live witli
him, i<u('p him in liis lit'L'timc, an<l liave all tlie prothice
for my use, and he was to leave it to me at <leath. This
was made fivt^ years ai-'o last wintei'. It has heen acted
upon sinee, and I havi- occupied on that agreement.
Father takes no i)art ; he is n(,'ar seventy. I am married,
and live with wife and (.'hildren in same house witli him.
No others of family there. The stock belongs some to
him, some to mc;. My wife had some cows and sheep. I
have raised a go )d many stock. Two or three of the
cattle hehjng to fnther. The crops are nunc ; I find the
seed.
H.VGAIITY, 0. ei the vote good.
CHARLES smith's VOTE.
David SiiiUli .■ 1 \ :>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 lia<l.
.lOHN' .lOIIXSTOX's VOTK.
Jolm Johnston. : I live on twenty-two and twenty-three.
I lived with my father when assessment made. I am
twenty-four, and left ffilher last Mai-ch. I was workini;-
oil shares with father whm assessment made. Two years
a,(fo last fall I went hack to work with father. The
har^n'ain was that I was to lia\'e a share in what was
raised, crop and hay. I and father to have all. No cei'tain
sliui'c mentioned. F was to haxe a share of what was
raised. The team was mine, I expect he would ha\('
more than me. 1 had conlideiicc in him. He was to i^'ive
me what he thoU!4"ht was proper, or he thouijj'ht he couhl
hrar. The family ha<l to Ite supported. This l>ar,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
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IKoVINCIAL EI-ECTIONS.
[a.d.
Vt\
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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 <jut during
tlie month.
H.VGARTY, C. J. — The man was oidy a servant of the
company, and occupied the house only as toll collector.
The company could turn him out at a moment's notice.
Vote held had.
ALANSON bacon's VOTE.
Alan son Bacon : I was l)orn in the United States ; so
was my father. I took the oath of allegiance ten years
ago. I pi'oduce it, dated the !)th July, IJSGI. I have heen
twenty-one oi- twenty-two years in Canada. I think I
catne in 1850, ahout midsummer.
Hagarty, C. J. — Held that as the voter had not taken
the necessary proceedings to obtain a certificate of natural-
ization from the Quarter Sessions, his vote was had.
GEORGE HEALEV S VOTE.
George Heahij : I was l)orn in the United States ; I un-
derstand I came to Canada forty-nine years ago, when a
year old. My father lived at Potsdam, in the United
States. He was born in the United States, as I under-
stood. Father dieil twenty-one years ago. I never took
the oath of allegiance. Grandfather came from Vermont,
as 1 heard.
M, 1
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PUOVINCIAI. E1,ECTI()\S.
[A.l.
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('ritM-ciutninnl : My f'jitlicr took tlic oath oF Hll('!i;'ianc(> ;
lie liatl to <lo so lu't'orc he u'ot tlic (IcimI of liis liind.
[The ('iiiKF JrsTK'i;.— That would Ih; bufore' ho n()t his
patent mi.lci' !)th (Jco. IV., c. 21.]
r suppose he took it in Prcseott. Thi' huid he j;'()t was
lot three in the sevi'uth coneession of l^^li/ahuthtown.
HacjAUTV, V. .1., held the vote l)ad.
sir-As wifuarr's vote.
Sll(i>< 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 ha<l no
further e\'idence to otl'er. The special case (see /msf p. 1 o!))
was then settled, and the Ijlection Court adjourned until
the !)th January, 1S72.
On the ivassemhlin^,' of the (^ourt, the foUowini;,' consent
was signed by L'ouusel and put in :
The C
)urt of ((),ueen's Bench having' given judgment
in favor of tlie i-es[)ondent in the special case stated for
the opinion of the said Court, it is hei'eby const-nted and
admitted that there is no fui'ther e\-idence to be ofierecl
by either party. Aiul it is admitted that the respondent
has a majority of votes on tlu' scrutiny, and is t'utitled to
the seat; and it is consented and au'reed that the said
respondent l)e declared <luly elected; and that each party
do pay his own costs of tlie said petition and proceedings
taken thereon."
Hagakty, C. J. — T therefore decide that the respondent
lias l)een duly elected, and that each party do pay his own
costs (as agreed). And I shall report the same to the
Speal-
leer.
(.') Jaunted Lajis. Assc/u., 1871-2, p. 48.)
iliil
1S7I.1
IIKOCKVII.I.K
liPvOCKVIIJ.K
I tV.)
I)i:i(»i{i; Tin: Corivr oi" (,)ii:i:ns IIkncii.
Samiki, Ki.i.vi', /V'/V
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7.
t.isiin/li
V. Wll.l.lAM h"ll /SIMMON'S,
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Cuiilroi'i rl<i/ Kliil'irtii —('
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• llhi,nl ,111,1 l',;,l,,l,U<,l A'-l-f
Rrf.
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I'n/'/W Hl'jhl I,) II
I'''., I'liji. ■!.
Si UiiHi It 11,1 diniiij //n/iiiir — Cirri, nj, <;/
(Jill ■<liiiii'<
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I'lMill i|lkstiiiiis rcscr\cil hy tlic l!ot:i .luilu'f Ullili'f " 'i'lir Cnlit loVfrtcil
l-'Jcrliiiiis Act ul l.sTl." it appeared tliat II. and B, vdti'd for rcsijoiid-
•iit. H. Ui'pt a saliMiii, wliicli was closed on the pollinjj; day ; l>iit
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<l the eaiiilidate
did not know of or sanction their proceedings.
//(/'/ (thoiigli with s((nu'
oulit
to I!.), that iieitlier II. iioi' 1>. 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.
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I'KOVINCIAL lll.KCTKiNS.
[a. I).
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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<l his aijents, with a view of
proiiiotin«,f the election of the said I'espondent, caused
certain hotels, tavei-ns, and shops, in which spirituous oi-
fermented liipior or diinks weic, at the time of the said
tdection, ordinai-ily .sold, to he opened and kej)t o[)en on
the day of [)ollini;' votes at said election, i)i the wards and
munici[)alities in which said polls were hehl. and caused
s})irituous and fermented li(juoi's aiul drinks t(j be sold
and g'iven to ilivers })ersons within the limits of the .said
town of Hrockville and the Township of Eli/ahethtown
during the day of pollinL,^ votes at the .said election ; and
liiivd certain horses and vehicles, and promi.sed to pay for
certain other horses and vehicles, and did pay for the
.same, to convey votei's to or near t)r from tlie polls or
polling j)la'-'es, or the neighhorhoijd thereof, at the said
election; and also hy reason that divers persons who were
guilty of tlie above practices voted at the saiil election
for the said respondent. And the .said yjetitioner by the
said [)etition prayed the said seat, or a scrutiny, and that
on such scrutiny the votes of tlie said persons who W(!re
guilty of tlie above cori'upt practices should be struck oti
the poll.
Upon c(jnsideration of the evidence adduced on behalf
of the petitioner as to the said charges, I find as follows :
1. As to George Houston I find that George Houston,
one of respondent's voters, was a saloon-keeper in Brock-
ville ; that on the polling day his saloon was closed and
I.
l,S7I.] liUiM'KVll.l.K. 141
l():'l\i'i| : that uji stiiii's, in a ronin in his |(ii\atc nsidi'ncc,
he hiul hciT and whiskey i<\\ m ial)lr ; that many of his
t'ricii'ls. perhaps ti> (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<pior
was not violating' the hiw ; that this was not done to
inlhnnee any vote or soter liy means of rKpior ; that it
was not done in the interest of either camlidate, noi' to
proihiee any elfccl on the eh'ction or its result ; and tliafc
the respondent ihd not know of or sanction these ])ro-
ree(Unu's.
2. As to Samuel Ihiriis I find tliat Samuel IJurns had
in license lo sell KKploi's ; that lie \oled foi' respoinh'nt ;
.al he sold liipior to .all jiersons that asked and |>;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;' <lay
that i AHs illei^'al to cai'ry \-oters for hii'c, and had ex-
pressed his willingness t(j cari'v voluntarily and five of
chari^'e, Leing- anxious to liel[» the respondent ; that when
Paul was spoken of, Price asked McK-'y could he, McKay,
not carry him to the poll, and McKay said he would do
so without cliarge, and that no hiring or payment was
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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 <nve him
sometnnig, and pai(
d h
liiii tlu' monev inteiKhnu' it as a
comiiensution for so cari'ving tlie voter; tliat Xh-Kav did
not it'Cei\(' it as such, hut iecei\"e(l it thinkinu' it was in
payiiu'iit for some woi'k he liad done for Pi-ice as a carter
in his ordinary Imsiness, and that there was an account
between them for woi'k in oi- about the amomit of that
sum ; that when the S2 were paiil, nothing ^vas saiil about
carrying ihe Noter : that the respondent knew nothing of
this matter, and never authoi'izt'd or sanctioned it.
The opinion of the Coui't of Queen's Bench is I'ecpiested:
1st. What is the legal eth'ct of the payment by Pi'iee,
an
a'-'ent foi' i-espondent, to McK:
ly. as found by me
w
lietl
ei' it was a " corru'pt practiet
a I
id, if so, did it
avoid the vote ol" Price or M(dvav, oi' of both, as votei';
for
i'esi)on<
lent,
or does it avon
tl
le res
poll
leiit's election:'
2iid. Whettier tlie giving oi- selling of lii[Uors, as found
h eases as Houston or Burns, avoi(h'd the
Ity me, in siu
votes of tile -aiil j)ersons, or eitlier of them
(Signed),
do UN H. H.UJAllTY, C.J., C.P.
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le case was ai'Li'iUM
1 liefore the Court of Queen's Bench
in ii
Michaelmas Term, ItSjb ^/l■. Ihiliiini'
api
)eared for tlu
petitioner. The ([Uestion as to the \otes of Houston and
ler the Ontario Act, o2 Wv., ca}). 21, sec.
I'lis, arises uiK
Bu
()(i, which re(]uires all hotels, ta\erns, and sliops in which
liquors are (jrdinarily sold, to be close<l during the polling
day, and forl)ids any liquor to be sold or given to any per-
,son within the niunicipality during such period, under a
penalty of Si 00. The amending Act, 34 Vic, cap. 8, had
two objects — to change the mode of trial, and more effec-
tually to prevent corrupt practices at elections. In it, by
sec. 'S, a detlnition of eoi-rupt practices is for the iirst time
given, and it could hardly have been mon; coiiH)rehen.sive-
It includes all " ill(\gal and prohibited acts in reference to
elections, or any of such t)tiences, as defined bv Act of the
1871.]
imOCKVlLLE.
14:}
Lcnslature." The acts of l»otli of tliein were clearly pro-
liiliitdl and contiviry to the statute, and weiv therefore
(■nvvn])t pytiQtic.es, Sa//ordvfisc (1 U'M. ^: H., 1:54). Their
votes are both bad, therefore, under sec. 47 of ;U Vic,
wliicli declares that any corrupt practice connnitted by
un clectoi" voting at an election shall avoid his vote.
Tlicr*' is no clause expressly a^u'ainst " treatino'," as \h the
I'hinlisli Act, where it is pi'Ovide(l for specialh'. Sees, (il
;ind (it) of oui' Act, :-)2 Vic, cap. 21, provide agaii;st it in
ctfect, and are veiy string'ent, making' no exceptions vwu
for medical purposes, though perhaps tliat iuiL:;nt lie im-
plied. No question as to intention can arise under sec.
<l(i, jis under sees. ()1,().S, 07, nor ;is to at^'i'ucy, as under sec
71. As to Pi'ice's conduct, the o4 Wl:, cap. •'>. 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 <loctrine of ratification,
Liiiurich ra.w (I O'M. ».V: H., 2(il). The statute, undei- the
Interpretation Act, ."Jl Vic, cap. 1, sec 7, sub-sec. •"}!>,
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-
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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<l a
vote, nuist be an illegal or prohibited act " in reference to
eh'ctions," which these acts were not. The hcfidjiig of
" Prevention of Corrupt Practices at l<]lections," before
see. (57, cannot be held to govei'U ;ill the sections down to
sec. 74 ; for sec. 72 defines what shall ])e deemed to b'e
"undue intlueuce." There is no necessity to hold any act to
hv a rornipt /)f((rfi(r unless it be expressly declared to be
so. because all prohibited acts have some penalty or other
attached to them. Houston and Burns may be .subject to
a penalty under sec. (iO ; but their votes are good, and
cannot bi; di.sallowed. As to Price's case : Agency, if
established at the time he einployed the team, nuist l)e
sliown to have continued uj» to the time when he paid
the money. There was no proof of hiring under '4'2 Vie.,
ca]). '21, see. 71 ; and the act of payment was a voluntary
act of Pi'iee after the election was over, made not on
account of the service rendered, but from charity, and
not foi' thf candidate, but for himself, and in his business.
There was no agency existing then. A i)i(//i/ii'nf must be
the act and intent of both ; such iiitent was absent from
the minds of both, but if absent from the mind of one,
that is sutHeient to mak*; it no payment. Price's act, if
within see. 71, merely destroys his vote, and subjcets him
to a penalty ; it does not defeat the election. Nothing
will avoi<l the election unless, under the 4()th .<ec. of of
Vic, cap. -i, a coiTupt practice be repoi'ted by the Juilgc to
have been connnitted by or with the knowledge and con-
sent of the candidate. An election connnittee has much.
1871.]
KROCKVILLE.
14-7
c-rcatoi- power in tliis respect under cap. 21, sec. (50. The
anainient may lie tlius sliortly re-stated : L Price was
not an agent at tlie time of the payment. 2. It' lie were,
the payment was not with tlie knowledge and consent of
the candidate. The election, therefore, cannot be avoided.
:1 Price did not hire emy team ; his v-ote, therefore, cannot
be struck oti". Houston's an<l Burns' votes are good ; at
most their acts were prohibited, and they may be subject
to a penalty. Where the Legislature lias declai-ed that
a vote shall be lost for a particulai- cause, it does not
intend that it shall be forfeited for any other cause.
Mr. Btthunc, in reply. Selling or giving li(|Uoi' does avoid
the votes. As to what is undue influence, set- Ifvr/iic/nn
V. Bri^rlqi (14 Ves., 272 ; and in 2 Wliite and Tudcji-, L. C.
.")()4, :?id ed.). It differs in its nature from an illegal or
prohibited act. If the 47th section is not moi-e extensive
than the law was before, it is of no value. EatcrUninncnt
it is not said shall avoid the election ; but it does so
l)ecause it is a prohibited act. The 4.Si'd section of the
Imperial Act is the (me which has not l)een ailopted
in our Act. As to Pi'ice's act, it avoids the whole
clectiou ; but at any i-ate his vote is avoided by the 71st
section. Most of the payments in such cases are made
after the election. He referred to the cases already
ileci<ie<l under this act : The (rli^ngarrji case, before
liagarty, C.J. (ante, p. (S) ; Nortli York case, before (ialt, J,
(iniie, p. 62); Nortli Simeoe case, before Strong, \^ C.
{iintc, p. .50); and the South Grei/ case, before Mowat, V.C.
(ante, p. 52).
WiLSOX, J. — The particular cases referied to us by the
learned Chief Justice of the Connnon Pleas, are— bstiy,
that of George Houston. He voted foi- respondent ; was
a saloon-keeper in Brockville. On the polling day Ins
saloon was closed and locked. Upstairs, in a room in his
private residence, he had beer ami whiskey (jn a table.
He gave it to those who came without pay or exjx'Ctation
of it. It was not done in the interest of either candidate,
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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<ret]ior.
The part of the 82 Vic, cap. 21, sec. ()(i, which applies to
these cases, is the latter part of it : "And r'> .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 <lay appointed for polling)-
•' under a penalty of SI 00 in evt.'iy such ca.se."
And it was ai'gued that liecause they had infiinged the
provisi<ins of this .section, the one hy firing and the other
1>V svJlinij li(|Uor, they had not only incui-reil a penalty,
hut had foi'feited their votes; that such giving an<l .selling
were pi-ohibited acts, and were within the provisions as to
corrupt practices.
The deprivation of the right to vote, or the forfeiture
of a vote ali'eady given, is not to lie inqiosed as a penalty
upon any one, unless under the express enactment of the
Leirislature. Thia-e are other pei.sons intei'ested in and
ati'ected hy that vote heside the voter. The candidate foi'
whom he has voted is intereste<l in it, and .so are the whole
l»odv of electors who have voted for the same candidate.
( )ne vote has and may again influence or change the result
of an election, and that is not to Ije brought about by
merely inferential or argumentative legislaticm, or as to
what the Legislature nnist have inten<led. There must be
a plain enactment declaring that the vote shall l)e rejected
if tendered, or .shall be struck of!" if given, to justify the
disallowance of it, and, as a consequence, to double the
penalty on the voter, and so seriously to afiect the rights,
privileges and interests of others dependent on the vote.
HI
1.S71.]
HUOCKVILLE.
147
Wliat, then, lias the statutt.' said on this point ?
:]'2 Vic, cap. 21 , sec. 70, <lechires, that on its heing proved
licfoie any election connuittee that any elector voting was
//;•/'"//, his vote shall he null and void.
What hrihcri/ is under that Act, is explained Ity sections
(i7 and (iiS ; the acts stated are not acts of Itrihery ; the
tiist of these .sections has the caption of " Prevention of
Coriupt Practices at Elections."
The -M Vic, cap. •i, sec. '■], declares that " ' corrupt prac-
tices' or 'corrupt practice' shall mean brihery and undue
iiitluence, and illegal and prohibited acts in reference to
(lections, or any of .such ott'ences, as defined by Act of the
{legislature.''
Tlie 47tl section enacts that, " If on the trial of any
election petition, it is 2)roved that any coi-rupt practice
has been conunitted by any elector voting at the election,
his v(jte .shall be null and void." It is under this .section
that the votes of Houston and Burns are said to l)e void,
it is .said they have each bv;en guilty of a cornipt practice,
not by reason of havin''' conunitted bril.)ei'y, but by reason
of their having exercised undue influence, or from their
having done illegal and prohibited acts, in con.setpience of
the one having given liipior ami the other having sold it
on the polling day.
It is ([uite plain that undue influence and illegal and
piohibited acts in refei'ence to elections nuist be corrupt
jiiactices, when the Legislature has declai'ed they shall be
so.
B'irstly. Were the giving and selling of liquor acts of
vnrUic iiijiucncc ? The meaning of that term is explained
and defined by the 32 Vic, cap. 21, sec. 72, and it is (juite
manifest that the acts charged against Houston and Burns
are not within that category.
Secondly. Were the giving and selling of liquor, as
before stated, "illegal an<l prohibited acts in reference to
elections ?"
It is necessary to settle what the meaning is of " illegal
and prohibited acts in relation to elections." Does the
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148
PROVINCIAL ELECTIONS.
[a.d.
expression mean generally all illegal and prohiluted acts
under the election lav; or does it mean illegal and pro-
hibited acts when and liecanse they are done in connec-
tion with, or to aii'ect, or in refei-ence to, elections ?
In the one case, giving and selling li»(Uor, however dis-
connected with the election they may he, will, if done
within the municipality during the election, he illegal
and prohibited acts, and as a consequence will be corrupt
l)r'actice.s.
In the other case, such acts will not constitutt- corrupt
practices, unless they are shown to ha\e been d(nie to
influence or to affect the election, oi- in some way to have
been done in connectitm with it.
The' section in which the illegal ami prohibited acts in
relation to elections are named, contains the election law
offences of bribery and undue influence, both of which
acts have and must necessarily have a diivct and insep-
arable relation to the actual electoral contest, and to the
proceedings anterior to it. Bribery and undue influence
in general are not prohibited, but bril)ery and undue in-
fluence in i-elation to elections only. Why then should
any greater effect be given to the other words of the
section, " aiid all illegal and prohibited acts," and more
especially as the word^s " in refei-ence to elections," have
been superadded ?
It will be found also that the offences of entertaining
electors, furnishing coloi-s or badges, and carrying or
wearing them, i-elate in like manner to the elections.
The election law morality is very different from what
morality is inidei- the general law. The election law does
not prohibit stealing, but it does prohil)it the wearing of
a party 1)adge within the electoral division on the day of
election or polling, or within eight days before such day,
or during the continuance of the election. The thief may
have on his person at the time he votes the watch of the
returning officer, or of the candidate whom he supports,
but he is an innocent man by the election law, and a good
voter; while the elector who has woi-n a party l>adge 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 an<l forfeiture.
A general state of drinkin<; and drunkenness at the
time of the election anujng the electors and inhahitants
of the locality, resulting from the dispensation of li(jUor,
might well lie deemed to 1)e a dispensation of such liijuor
in lelation to the election, although it were made without
any special reference to the election. The state of mind,
the inHuence and general conditi(jn of things it would in-
<luce, would tend naturally to disorder the proceedings,
ami to cause an untrue and impioper expression to he
given t)f the sober popular will. That was the case in the
Tiinmunih cciso (1 O'M. & H., No).
Hut the giving or selling of li(iuoi' iji conseijuence of a
liorsL' ti-ade, or in payment of an old bet, or from mere
friendship, or to test the (piality of it as a medicine, or to
he shipped abi'oad, or for any other purpose not " in refer-
ence to the election," would not, in \\\y opinion, be an
illegal or prohil)ited act, so as to be a corrupt practice
within the meaning of the' statute. Nor do I think the
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PKOVINCIAI, ELFXTIONS.
[a.d.
''*'*^'^4l
^fivin<j|; oi- st'lling of Ii(|U()r, thou«;li on the polling day, luit
after tlie poll was closed, and miles away from wlieie tlic
poll was held, wonld necessarily be an illegal and ])ro-
hil)ited act in i-eference to the election, so as to anumnt to
a cornn»t pi-actice {CWcufri/ Ehdion I'dition, 20 L. T. N.S.,
405).
The (Ust section of the 82 Vic, cap. 21, permits the can-
didate and others acting for him, even with intent to pro-
mote his election, to furnish entertainment to the electors,
so long as it is done at the usual [)lace of residence of the
candidate, or of those who furnish it for him. Such nikr-
taiintwnt, it would be. difficult to say, should not include
e V en a single glass of wine.
The statutes contain many illegal and pi-ohibitory acts
besides the giving and selling»of liijuor on the day of the
poll, and to hold them to be corrupt pi-actices, although
not done in leference to the election, would be hurtful to
all parties, and utterly uiu-easonable.
By -Vl Vic, ca]). 21, sec. 57, sul)-sec. -S, any pei-son dis-
tiu'bing the peact' and good order may Vie imjnisoned 1)V
the returning officei- or his deputy, for a time not later
than the final closing of the poll. Is the vote of that
person to be rejected, or afterwards struck olf, although
hir^ act had no refei-ence to the election, but was occasioned
by some great wrong done or ])rovocation given to him '
By sec GO evei'V iierson convicted of a battery com-
mitted during any part of the election or polling day,
within two miles of the place of election or poll, is to
forfeit 850. Is that pei-son also to forfeit his vote, although
the batteiy had nothing whatever to do with the election,
or happene<l after ll>e election was over '.
It apj)ears to me these cases plainly answer them.selves.
an<l enabh' the matter with respect to the giving and
selling of licpior to be as easily answered.
The penalties aiv already ([uite severe enough, without
increasing them against the voter, and extending them to
the candidate, and to the other electors of the constituency,
who sutler as well as the voter by the disallowance of his
IS? I.]
RKoCKVIhLE.
161
i'
vote, unloss we aiv ()l>li,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<l
tilt; pei'soii ort'ending shall incur a penalty of 8100; and
any elector who shall hii'e an}' horse, etc.. for any candi-
ilate, or foi' any agent of a candi<lale, foi- the pur[)ose of
conveying electors, etc., "shall ijisa Jurfi) be dis(|ualitieil
from voting at such election, ami for e\t'ry such offence
shall incur a penalty oi .*^I0()."'
The section, it will be observed, is in two })arts. The
first part affects the candidate and his agent, by subjecting
tlieni to a penalty. The second pai't affects the electors,
and besides subjecting them to a penalty, it di.s((ualifies
them from voting.
I'rice was an agent of the camlitlate, and so, as to the
penalty, is within the operation of the fii'st branch ; l)Ut
he was also an elector, and so he is within the opei'atioii
of the second ln'aiich, as to the loss of his right to vote.
The case fintls there was no hiring of McKay to cany
Paul, the voter. McKay carried Paul at Price's request,
hut he carrie<l him " voluntarily and free of charge." Some
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(lays aft<'i' the clcctiDii, Vvm\ as (•()iii|)('iisati<)n to McKay,
gave him !«5*2 for caiTving tlii' vottT. McKay <li<l not
receive it as coinpeiisatioii, Imt in ))aynieiit of work lie had
(lone for Price in his ortlinai'V Imsiness as a carter.
I do not see how McKay can he within the op(!ration of
the section at all. The hiriiii;', or jn'ouiisint^ to pay, or
pa^'inn- for any liorse, etc., ai)])lies to the camlidate. an<l to
any penson on liis Itehalf. That will extend to Price if he
hired, or pi'oniise(l to pay, oi' pai<l McKay for any hor.se,
etc. ; hnt it cannot extend to McKay, as he was ,J most
the person hired, pi-omised to he paid, or pai<l. Nor does
the .second l)i'an('h ajiply to him, for that exten<ls to tht^
eleetoi's who hire others, and not to those who are hii'e(l.
The case has to he considered, then, with I'en-ard to
Price alone.
At the time he \'oled — for 1 as.sume he did vote, as I
gatlu'i- .so from the tir.st ([Uestion put in the case, and from
the ai'gunient of counsel, though the ca.se itself d(X's not
say he did — he was under no dis((ualitication ; foi- he had
not liired, promised to pay, oi- paid McKay, and there was
no agreement oi- undei'standing to do .so, liut the contrary;
the service was to he, as in fact it was at the time per-
formed hy McKay, free of charge.
In my opinion, tlie agency of Price tei-minated with the
election — the occasion and the purjw.se for which he was
employed. His suhse([uent payment was an unauthorized
act as to his principal. It can relate back to nothing, for
there was no hiring or promise to which it could attacli.
But as a fact it was not a payment ; that must he the act
and hy the as.sent of l»oth parties. When Price gave the
money for one purpo.se, and McKay I'eceived it on another
account and in i-espect of a ditfei'ent transaction, that was
not a payment for the purpo.se that Price intentled it for,
more than it was a payment on the account for which
McKay received it. It was properly not a payment to (»r
for either one purj^ose or the other {Thunws v. Cross, 7 Ex.
728).
?:>«-
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 knowled<ie and consent of the candidate,' whereas
he liH-; distinctly iie;,rative<l that fact.
I am not (|uite satisfied, as I stated (hirinjf the ar<;'uinent,
however convenient the practice may lie, and ho\\c\-er
<lesiralile it is tliat the law slujuld lie .so, that the Rota
Judj^c has power, until he is in a position to <;;ranthis cer-
tificate, under the .S4 V'ic, cap. 3, sec. 20 — that is, until
the close of the case — to reserve a (luestion foi- the Court.
Such (picstiou is to be reserved "in like manner as
([ucstions ai'e ustially reserved by a Jud<fe, on a ti-ial at
Nisi Prius," and no Ju<lge at Nisi Prius can stop a cast- in
the middle, and adjourn it until he has some iiitermeiliate
dithculty cleared out of his w^ay by a reference to the
C'ourt. If there be any doubt in this respect, the Act
should be amended.
Assuming that the case is ret^^ularly before us, 1 shall
answer the (}uestions suliuiitted as follows:
1. That there \va.s no pa i/mcnt made by Price to McKay.
If it were a payuient.it was made by Price at a time when
lie was not au agent for tlie respondent, and with res[)ect
to a matter to which it could have no proper relation, foi-
there was no antecedent hiring or promise to pay. The
niattei' was, therefore, not a coi'rupt practice.
If it had been a corrupt practice,', it would have avoided
Piice's vote Vmt not McKay's vote, for he was the pei.son
hired, if there liad been a hiring, anil such a pers(ni is not
deprived of Ins vote.
This act, if it had been establi.shed to have iK'eu a cor-
rupt practice, would not have defeated the election, because
it has not been found to liave been " committed by or with
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154
I'UOVINCIAL KI.KCTIONS.
[A.D
the knowlcd^fc uiid consent of the cniididate ;" on tlie con-
trary, tlie ycry opposite t'aet has heeii found for the can-
di(hite.
2. That the ^iviii<f of htiuor, us found \>y 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).
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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}fi<li'iil, t'oi' icspondfiit.
Till' I'ollowiiin' evidence wiis •,q\en as to eonupt pnic-
tices.
Ailiiiii r. Moiif : \ Hill a voter in this (livisi<»n. I voted
for Mr. Kd;4'ar. David Winslow eanie to my house liefoie
tlif polling' ; he asked nie if I was coMiinj;' out to vote.
I said I did not know it wouhl lie worth my while, lucauso
I was a hiiH'd man. I said 1 would consider it a day lont if
I went out to vote, which wouhl cost me i^l. He saiil :
Conic out, and your 81 will he all ri;,dit. He was support-
iiiif Mcrallum.
Mr. .frsTK'K (J.vi.T helil that the charge of Itrihery was
not sustained.
Kvidence was then ;fiven to show that in one of the
townships in the electoral division the list of voters was
i lade up from the Ass(;ssment Ivoll t)f IS7<), and was
sworn to on the l.'{th Au;^nist, 1S70, hut that it was not
delivered to the Clerk of the Peace until the ITtli March,
1(S71, during the election in question, it was also proved
that the \\)ters' Fiist of liSli!) had heeii delivered to the
Clerk of the Peace on the l!)th Anuust of that year ; and
that there were 41 voters on the Voters' List of iS(i!) who
were U(»t on that of l!S7(). The writ to hold the electio;i
was ilated the 2.')tli Fehruary, l(S7l, and the eli'ction was
held on tlie i4tli and 21st .March of the .same year.
Mr. .Ir.sTiCE G.\i/r tlu'r(ni])on reserved a special case foi-
til opinion of the Court of Queens Bench, setting;' out
tl, ahove facts, and also suhmitting whether tlu; Judg(i
l)resi(ling at the trial had power to amen<l the petition.
The Court -f Queen's Bench (82 Q. B., 147) held that
the Voters' List of LS(i9 .should lifi.ve been used at the
election, it having' heen the one tile<l with the Clerk of
tile Peace "at least one month Vjefore the date of the writ
to hold such lection," pursuant to 32 Vic, c. 2L «. 7, suh.s.
ill
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PROVLVCIAL ELECTIONS.
[a.d.
10. But tliat as it was not sliown that tlio vote of any one
of the 41 entith,'il to vote by tlie list ol' 1S(J9 had l>een
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'<l tliat at tlie time of tlie election
(14tli aiul 21st March, 1871) the respondent was disquali-
fied to be elected a memhei' of the L( gi.-dative Asseiul)ly
by reason of his holding the otHce of postinastej- at Patter-
son, West York, an office In the service af the Dominion
of Canada, at the nomination of the Crown, to which a
salary or fee, etc., was attached ; anrl that such was a
distjualifying office under the Act to secure *'he Indejiend-
ence of tlie Legislative Assembly, 3-i! Vic. c. 4, s. 1, which
enacted that, " no person accepting oi' holding any office,
cominission or employment .... in the .sei'vice of the
Doniifiion of Canada, at the nomination of the Crown, to
which any salaiy or any fee, allowance, or employment in
lieu of any salaiy from the Crown, is attached, shall lie
elegiltle as a member of the Leg: dative Assembly, nor
shall he sit or vote in the same during the time he liolds
such office, occupation, oi- employment." The petition
claimed the .seat for the [)etitioner on the grouiul that
[)ublic notice of the respondents ilisijualification was
given to the electors.
Dr. McMichud, for petitionei-.
Mr. 11 A. Harrison, Q.C., Mr. J. K. K,:rr, ,iii<nir. IJnll,
for respondent.
It was admitted that the respondent was postmaster at
the Village of Patterson, West York, up to the 1 1 th March,
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PROVINCIAL ELECTIONS.
[a.d.
1871, that on that day he sent a telegram and lettei' to
till' Postiuastei'-General, resigning his office of postniastei-,
which was accepted by telegram on the 18th Mai'ch, and
by letter on the l8th March, 1871.
It was tui'tluir admitted that the nomination of candi-
dates took place on the 14th March and the polling on
the 21st Mai'ch ; that the petitioner and respondent were
the only candidates ; and that the result of the polling
was: I'or petitiimer, 071 ; for respondent, 8().') ; majoi'ity
for respondent, 94. It was also admitted that the office
of postmastei' was one of enn^lument under the Post-
master-General under the Act of Canada, 'U Vic, c. 10.
The evidence of the public notoriety of the respoiident's
dis([ualitication was as follows :
liohcrt Johantou : I was at the nomination ; perhaps
some three (jr four hundred persons were present. 1
showed the respondent the Post Office Regulations just
before the nominations. The objection was discus.sed as
to respondent's (pialitication ; and after a telegram to
Toronto, an answer came from Toronto statiun' that the
respondent was all right. The i-espondent andhis friends
then consulted as to whethei- anothei- candidate should be
named ; ultimately he and his fi'iends decided it was all
right. This was after respondent and others had V»een
proposed and seconded. Tlien all others retired in favor
of respondent. After receipt of the telegram it was a
matter of talk, and 1 dare say all the people in the hall
were aware of this supposed difficulty and deliberation.
The nomination took place on a balcony in front of the
hall. The body of the electors were in the open air in
frcmt of the hall.
Counsel for the petitioner stated that he had no stronger
evidence to support the petitioner's claims to the seat.
The Chief Justice held on this evidence that the peti-
tioner could not claim the seat if the respondent should
be fouml to be disqualified {a).
(a) See ICmiX cane, !l U. V. Law .Jour., 247.
1S71.]
WrS']' YORK.
15J)
Aft(!r till' ar<j;uiii<'iit of couiisi-l on the ([iiestioii of the
(Hs(|uaHtic'ati<)ii of the ivspondent,
Haoakty, C J., said: I <lo not fcol iimch ilitticulty
ill satisfvin"" my own jiidgiiicnt oh tlie (jucstion iK'foiv
1110 ; hut as the class of persons affected hy the decision
is miiueieus, tlie (juestion one of general importance, and
there has ap])arently been no express decision since the
cliaiin'e in the mode of tryiii]!^- election petitions, J think
it hetter to reserve the law of the case for tin; C^ourt of
Queen's Bench. If I decide, my judgment is without ap-
peal, and it is possible another Judge, similarly situated.
iiii<dit view the case diff'erentlv 1 think it better to have
the law .settled by the highest authoi'ity. I .sliall there-
tori', un<ler the 2()th .section of the Act, tiiwl the facts in
evidence before me, and reserve for the determination of
tlie (Jourt of Queens Bench two (luestions :
1. Is the office of po.stmaster (not bi ing in or for a city
or town) an office occasioning a di.s(|ualification for election i"
2. Was the re.spondent on the day of nomination (14th
March, 1S71) a person liolding such office i
Huljsequently it was agreed between the parties that
the .special case should be abandoned, and that the respond-
ent should Ix' declared duly elected and returned, and that
petitioner should pay the respondent's co.sts.
The Chief Justice thereupon determined that the
respondent was duly elected, and that thi' petition shouliJ
Ite di.smis.sed with costs.
((j Jovrnal Liijis. A-'isini., 187'}, p. -l).
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PROVINCIAL ELECTIONS.
PRINCE EDWARD, (2).
[a.d.
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Before Mr. Justice Morrison.
PicTox, ^'7/h AiujuHt, 1S7J.
Joshua B. Dorland et at, Pditiomrs, v. James Simeon
McCuAiG, Rcsjwiulent.
Lhl of Votcrti to be used at Election — Scrutiny accoyi/liu) to the Proper List
— S<(it awarded to the anxiKcesufut Candidati: at Eli-ction,
Held, following the Mottck cn,ii' (.32 Q. B., 147, '("'''-, p. ir)4), tliat the list
of voters to Ije used at an election must be tiie list made, certilied and
delivered to the Clerk of the Peace at least one month before the date
of tlie writ to hold such election.
The list of voters used at the election in tiie Townsiiip of Hillier was
not Hied until the 28th November, 1871, and tiie writ of election
was dated !)th December, 1871.
UcJd, that the list of voters of 1871 should not have been used; and
the Court having compared the Voters' List of 1870 with the poll books
used at the election in the Township of Hillier, found that .Mi persons
iia<l voted for the respondent whose names were not on the list of 1870 ;
and the names of such persons having Ijeen struck oil' the poll, the
respondent was found to be in a minority ; and the seat was thereupon
awarded to the other candidate, he having obtained on the scrutiny a
majority of the votes.
An election having taken place on the avoidance of the
former election {ante, p. 4.'}), the respondent was declared
elected. This petition was tliei-eupon tiled, praying for
a scrutiny of votes, and claiming the seat for the defeated
candidate, Gideon Striker.
Mr. J. K. Kerr and Mr. Allison, for petitioners.
Mr. Low, Q.C, for respondent.
Tlie poll books were produced, from which it appealed
that the total vote was as follows : For respondent, 10()(> ;
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'<l hy :]2 Vic, c. 21,
s. 7, siihs. 10. The voters' HsL for tile same township
was then pro(hice(l ami conipareil with the ])oll hooks
u,se<l at the election, when it was found that '■]') pei'sons
luul \i»teil foi' the res[)'"'i(lent whose names did not ai)pear
on the Voters' List for lcS70.
The charges and countei- charges of hriliery, kc, were
withdrawn on Ixjth sides. After a short adjoui'nment the
Court was reo[)ened, when the following judgment was
delivered :
.Morrison, J. [after refei'i'ing to the eliarges in thi^
petition, and that the petitioners claimed that Mr. Striker
had a majority of the legal votes] said: The poll hooks
show that in the Township of Hillier thei'e were 201 votes
recordeil for Mi'. McCuaig. and 1()<S for Mr. Striker ; that
the voters' lists used hy the Deiaity Returning Officers in
that township were taken from a list of voters for 1871,
which the acting township clerk of Hillier had not certified
under oath or affirmation until the 2.Stli Novemher, IcS71,
twelve days previous t(j the Otli Decemher, lcS71 , the date
of the writ of election. Under the oth sec, and the 10th
suhs. of sec 7, of 82 Vic, c 21, no persons other than tho.se
whose names are entered and appear on the last list of
\-. iters made, certified and delivereil to the Clerk of the
IVace at least one month hefore the date of the wi'it of
flection, shall he admitted to vote ; and liy the 2nd subs.
(»f the 7th sec. the clerk shall certify, by oath or affirma-
liuu, to the correctness of the list so 1»y him made out, and
deliver a thiplicate original thereof certified by oath or
affirmation t(j the Clerk of the Peace. Now, here it
appeareil clear that the township clerk <lid not certify, l»y
oath or affirmation, the roll for 1N71 until the 2iStli Novem-
her, 1.S71, t. *'., until twelve days before the date of the
writ, and it was contended that the scrutiny couM only
jiroceed on the roll for 1870, being the then last duly
certified roll.
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rilOVIN'CIAL ELECTIONS.
[a.d.
The (|Uosti()n was delibcratoly considercdity the Court
of Queen's Bencli in the casti of the Monck Election (}V1
Q. B., 147, (nite p. l.')4), and tlie h-ai-ned Chief Justice of
Ontario then held, and 1 eoncui-red with liini in opinion,
tliat in order to (|ualify a venter, tlie statute I'eipiires tliut
liis name nnist appeal- on the hist c^^rtitied Hst delivered
to the Clerk of the Peace one month before the date of
the writ of election. F(jll()win(^ that decision, I am of
opinion tliat the roll of 1<S70 is the one to .show the names
of the duly (jualitied voters entitled to vote at the election
now in ((uestion. And as the evidence .shows, of the votes
recoi'ded for Mr. McCuaijj;' in the Township of Hillier Xy
wei'e given hy persons \vhose names were not on the roll
of 1S70, and consequently not entitled to vote n.t the elec-
tion, and being now .struck ott", Mr. McC-uuig is placed
in a minority of 19 ; and that gentleman and his counsel
l)oth intimating that they couM not further proceed with
the scrutiny so as to place Mr. Striker in a minority, and
the other charges alleged in the petition, as well as the
recriminat( ry case on the part of the respondent, being on
lioth sides abandoned, 1 have only to say that the peti-
tioners have proved Mr. Striker to be in a majority; and
I therefore find that Gideon Striker has a majority of
votes, and that he was duly elected for the County of
Prince E<lward, and that the respondent is unseated, and
that Mr. Striker ought to have 1»een and should now br
returned.
(() Jiiui'nd, Liiji^. Asseiii.. bS7-J, p. 4).
r I
]s7-2.] SdlTH fJHENVILI.K. 1 ()8
SOfTTH GRENVILLE.
Blfoije Mk. Vice-Ch.vncellor Mowat.
PltEscoTT, .In/ to 14tli St'iiti'mhii; 1S7J.
Wiij.iAM Eli, IS, IM.itiom.r, v. Chuistopheu Finlay
FliASEH, RMiiniiihnt.
Siriiliiii/ (Jiiit/ifirii/ioii of Vofirs — Jiiij/if n/ Pitr/mrs, Johif (hr'nr.'i, Tnis-
/irx, iiii'l Vendor^ to \'ati'—-M'i.tliiki' in Ia)I — ^l.-'.sv.v.sci/ Vnliir — Ei'hlinri
-^i ilijrii'toii to Vol<.<.
W'luTo a son was assus.sod at 8700 for a farm in wliiuli lie and his fatiier
wore partners, in tlii' proportion of threi'-fourtlis of tlio profits to the
father and one-fonrth to the s-^n, and the objection to the voter was
iinn-owiiership,
//./'/. tliat the partnership was established by the evidence, and in view
of the objection taken, the vote was sustained. — llalbr SimUis rote.
Where two partners in business occupied premises the freeliold of
which was vested in one of them, and the assessment of the j^remises
was snihcient to give a ((Ualitication to each, Ijoth partners were held
1 1 laliticd to vote. -TIioiikis Fi/'-ijint/i/'.^i rofr.
Wlie.e a father, the owner of a lot, told his son that he might have the
lot, and advised him to get a deed drawn, and tiic lot had been assessed
to the s(jn for 3 or 4 years, and was rented to a tenant by the father
with the assent of the son, who paiil to tlie father his wages but the
father collected the rent,
//•/'/, that as tliere was nothing but a voluntary gift from the father to
tiieson, witliout possession, the son"s vote was bad. --./'(//((■->• 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<l tiie property was sold under the mortgage,
and the deei' made to the widow, but three of the sons furnished some
of the purchase money, and all remained in possession, and the eldest
son was assessed as occupant,
//' hi. that as the eldest son did not show that the property was purchased
for him, and the presumption from the evidence being that it was
liought for tlie mother, such eldest son had no right to vote. — John
Morroir'i rote.
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PROVINCIAL ELECTIONS.
[A..).
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All objection that the persoiiis objected to were not owner.s, tenants, or
occupants witliin a. ">, 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<l the vote.
THOM.VS FITZGERALD'S V(JTE.
Thomas Fifzgernhl : 1 voted on a pioperty on Main Street
in this town. John Dutt'v owned the lot ; when I voted
he was living on it. The shoemakino- business is carried
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I'KOVINCIAI. KMKTKiNS.
[A.D.
oil ill tlic liousc. 1 li\r(| tlicrt' wlicii I votrd. I am not
a married man ; J)urty is. My fatlior is not ali\ r. I am
an adopti'*! son of John Dnfly, ami liavu lived with him
since my childhood. He has childieii of his own. V\\\\v
and a half years a^'o he agreed to ;4ive nie a share — (»ne-
third of the profits in the Imsiness. I had worked with
liiin fifteen years hefore tliat. I was not to i)ay for my
hoard. 'He was to <i,ive me my lioard and one-third nf
the profits of tlie hnsine.ss. That a^-ieement has eontiniied
ever since. 1 never had any other ai^reement with him.
I don't recollect the date. T had a settlement with him
last year. That was the first settlement I had with him.
It was in the spring'. I had no settlement with hini he-
fore I voted. I <lid not ask a settlement, hecanse I did
not want it. Any money I wanted I yot from him. At
the settlement I n'ot !?')7 as my share of the ))roHts for six
months. That was the last six montlis. We had iio
settlement for the prior pt'iiod. 1 di<l receive the i557.
('ross-c.raviiiial : I had heeii intending' to leave when
the an'reement was made foui' and a half years ai^o. I
remained on the faitli of tlie ag'reenient. I was not* very
strict with the old man. He and I alone Avorked on the
] (remises.
Mc-r.'vminrd : I was at the Conrt of Tle\ision. They said
I liad a had vote. I was asked to swear. I don't recollect
whether I refused to swear wliether T was a partner of
Dntfy's.
Jo/ni /hi (If/: 1 am owner of the pr()j)erty Fit/uerald
spoke of. I think the nnmher is 7. I occupied the whole
until ahout nine months a!.jo. 1 rented part then to Mr.
Rohinson, who pays his rent to me. Fitztferald is still
workiny,- with me. Four or five years ayo he ha<l a notion
of o'oinii' west, and I said if he would remain with mt- I
would give him one-third of tlie profits; one-third n'oes
for wood, taxes and other expenses of the house, and
I have the remainin,i>" 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 <iHKNVII,l,E.
I(i7
Crtis.'i-i'i'finiind/ : I was at tlw Court nt" Kcvisiuu. It was
a iii.-rc <I(m1l;('. Fit/L;'t'ral<l would not swear, licniusf lie was
disoiistt'il. I iiiaki' tilt' puicliascs. All the invoices art*
ill my name. My liusiuess is ail custom work.
Mr. Ifiirn'sdn contuivlt'il that tlii' voter was only eiititle(|
to one-tliiril of the profits, ami the property was only
nssfssetl for SJOO. The voter had no interest in the land.
Tlie Vl('K-(^FIAN'CKI,l,<>lt sai<l the eviilence in effect
vliiiwed a partnei'ship of one-half each, after d.eductini^
the thiid for expenses spok(;n of hy Duffy ; iiml he would
hoM tiiat where two partners were In husiness, and one
of tlii'in owned the freehold where tlie liusiness was carrie(|
nil. Iiotli ])artners could vote if the assessment was sufli-
cieiit. Vote held ^'ood.
JAMKS I.IXDV'S VOTE.
.IdiHin Lnnilii : I voted at th»! election in March last. I
voted on dohnstown town ])l()ts. 'Phey contain ahout 'M\
acres. 'Inhere are three park lots. This pro|»erty Kelonu'ed
to me when I voted. My father i;'a\'e it to me ; he is still
li\iiiL:'. Win. Scott li\-ed on this property. My father
u'uve it to me two yeai's or more ai;'o. lie considered that
I had paiil for it. He did not ;^'i\'e me a deeil. My father
has a deed of it. He off'ere(l me a deed, hut I did not
I'ure to take it. 1 a;ii not a married man. I thou^'ht he
cdulil take care of the deed hettei- than I could. I woi'k
at different places. My father has not made a will of this
property. He has aske(l me to ^et some one to write out
a will of the property for liim. lie said if I did not it
iiii^ht lie too late. 1 was not in a huriy ahout his making'
till' will ; I think he has a i-ij^ht to make a will of it to me.
riie tenant pays rent. I receive part. My father has told
me he I'cceived })ai't. 1 don't know how nuich I i-eceivi'(l,
it was under S.'). The tenant has hut a small portion. It
has not heen rented more than a yt?ai'. The rent was
payahle any time we wanted it. The ivnt is 8I7.-")0 a yeai-.
It commenced April or May la.st. It was not undei- rent
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I'KOVINCIAI, KI.KCTKINS.
[A.I,.
at tln' tiiiH' I votffl. At that time it was not of-nijiicil Ky
anylxxly. Crops wcir ^rowii on it. I cioppcil it this
si'ason. I li<'l|)f<l to ci'o]) it previously. Part of tlic crop
I ffil to tilt' cattlr, iiml piirt I lisfil u|)on. My father ami
Itrotliers live u|ioii tlie place. I live there too when I am
at h(»nie. My father is not now li\ iiii; on any part of the
.*J() acres ; Iienio\c<l oti two years aeo. lie did not |i!iy
nie rent. It was in the spring' he nio\e.| oil". The place
was then rented to .lames Millar. He paid 8:{') a yeai'.
My fatlu'r collected it. Me i^ave nie no part of it. He
said he would eive me this lot. This was when he lioni,dit
tlie othei'. I allowed him to collect the rent as part
payment.
CronH-i'.rdviinnl : I consider that I have paid for the
property. I worked for my father e\cr since I came of
aii'c. I n'ave him in monev 8100 at one time, and 8.")0 at
anothei' time; also other two small sums. I considered
he should liave all this foi- the lot. It was calle(l in the
family my lot. My t'atlier had me assessed for it. I tliinl\
I liavc heen a.s.ses.sed for it foi- three oi- four years. 1 am
not awai'e that my fathei' was e\ er asses.sed for it T am
n(jt his eldest son. My father tohl me that the land wa>
mine, and that I might have it: have a <leed of it any
time I L;'ot mai'ri<'il. My fathei' made the har^'ain witli
Millai' with my as.sent ; I made tlie hai'L^'ain witli Scott.
This season 1 liave done some feiicinn' on the place, and
liave worke<l it.
Rf-irdmiiivd : It is two years a^o tliis fall tliat I paid
the ."^lOO. I paiil the 8'>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 ha<l.
\vn,i.i.\M mim.i.in's vote.
I'lilriil: M iilliii : I live in Auij'usta. William is mv son.
He \'oted on part of (i, in 2nd concession of .\uuusta.
William owned it tlien. I liad willed it to him : tliat is
liis only title. I live on tlie place ; lie does not. He is a
farmer. He lives witli Mr. Moran ; he works foi him.
William is my only cliild. He works tlie farm, f work
a little on it : all that 1 am ahle to do.
Crosa-ridviiuKl : I did not vote : I am not assessed. My
son alone voted on this property. William suppoits us_
iiie and the old woman, wliate\-er we do. The liusiness
is in William's name. I am 7'^. There are (i acres of the
property. If any help is i('(|uircd he hires it. ( )f the
crops, what is not u.sed he ,L;'<'ts. He furni.shes the seed.
The neiifhliors do the plouuhini;- ; they niake a hee of it.
William often comos liome. He is 'M) ; he is not married
He has heen asse.s.se<l for the jirojieity foi' three years
I told the assessors to put it down for my son. 1 did so
hecause I could not woi'k the place, and I consideicd my
.son had the place. My son huvs the ;.''roceries requii'ed,
or gives me the money. My wife is thi'ee years younger
than I. My son own.s the crops, except what is ixsed. I
had 20(1 aci'es. hut this is all that is left.
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170
PROVINCIAL P:1,ECT1()XS.
[a. I).
Rr-c.iinnincd : My son i,nvcs us money when we want it.
When lielp is neetled he eitlier turns in oi' liires lalioi'. I
Jiever sell wliat is to spai'e, and liave not done so since T
willed the place to him. He lias sold since. My other
sons ai-e all mai-ried. They used to t^dve lue money when
I wanted it, and we kept no accounts.
Mr. Harnndii e<;nteiided that there was no evidence of
any aiyreement l)etween the father and .-'.on, and the scm
was not in actual oceui)ation.
Mr. Mwhnann ui'ge<l that this was not a suspicious
ca.se; the father was not asse.ssed for the lot. The fathei'
said the son ^ot whatever was over ami al»ove the sVipport
of the family. Aetna! residenc ' was not ri'(|uireil to make
occupation.
The ViCK-CnAXCELL<»u did not think tlif son had such
a hciu'tieial interest in the property as would nive him a
vote, and he tht-rrfoi'c held the vote had.
.lAMES noLDKNS VoTE.
Jdnirx Hiihli ii : 1 voteil at the election in tpiestion. I
live in Morrisliuri;— not in this county. I voteil on part
of S. \ :V.\ in .")th eon., Aug'usta. 1 was the sole owner
and occupant at the time I voted. 1 have had tlie title
for twcnty-eiyht years. I l)ariiained to sell this property
in January or Fehruary last. The purchaser has not ful-
tille<l his part, and has therefore not got his deed. The
purchase money was to he paid part down, and part in
instalmenvs Tlu- down payment was not ma<le. It was
to ]ia\c iH't'u made when I j^'ave the dee<l. and T am not
prepared to L!;ive it yet. The harj^'ain wili he carried out
m xt week. Theiv is a memornndmu in writing; of the
hai'nain. The lot is not improved ; no house wn it. To
insure the harg-aiu. lie <:,'ave me ijfoU at the time of the con-
tract, ami is to uive '^(lOO when tlie deed is executed. I
have not lived in this riding for upwaids of '.\0 yeai'.s. 1
have not the contract with me. The pui'chaser has the
original and I have a copy.
Hpiif^*wpp^
1872.]
SorXH (HIEXVILLE.
171
i I
('ross-i.iiniii/ifd: When I iiiii jji'cpai'cd to nivc a dci'd I
am to gi't tlic S(iO(). J am not prcparrd iiiuiu'(liatt'ly
to <five till' "Iced. I luadr an assiKnint'iit in 1S.")7, and I
liad not n'ot the convoyanct' liack tlion^h the cstatf lias
]>vvn 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<jns under the formei' agreei' tents. [Produces
Ifttii's from iSfi.') to 1 S()S.] Walki'i- has Iteen in possession
foi' several yeai's, and cro])j)e(l the land uii<ler the agree-
ments containefl in these letters. There was nothing said
ill the agreement of Fehi'uaiT last ahout possession.
1:1
Mr. luilmrils contended that as the i'([uitalile owner
was allowed a vote ill the Stannunt case (iJlair's case, (oif'',
[). 87), the legal owner could not also have a xote.
.I//'. Ifnrriwii contended tliat hoth could not vott' as
owners ; the legal owner couhl not take the oath, as he
would have to swear that "he was actually jxissessed to
his own use ami lieiietit as owner."
Mr. Marli niKtn ri'ferred to lidiirrs (i,i Elirfiniis, :\\. !)th ed.
The Vkk-Chancki.I.oU sai<l that he had not mueli doubt
hut that the vote was had : where a tenant in possession
liuys the premises, he is eonsideri'd as heiuu in jiossession
under the contract of purchase, and the \-endor, though
lie may have, as here, gi\-en no i]vrA. is a mere trustee for
the iiurchaser. Vote held had.
DANIKt. N'dlU.INS VoTK.
T/io,iin-i ('(i.^fjrr(vr : \ liv<" in Augusta. I know Daniel
Xohlin. He is a.s.ses.seu for 2.') aci'es of the front of rear
lialf of :]:] in (ith concession. J houuht this from him in
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•ivirx«rm.vim'iamifmiWKmm
172
PROVINCIAL ELECTIONS.
[a.d.
11
April. 1.S71. I pr()(luc(> the .let'd [22n(l April, 1S71]. I
liavc oc('U])ie<l the land since my purchase. 1 allowed him
to take s<wie liuiewood off' and plant a small jiarcel of
land in potatoes ; he planted two hushels. I took
possession when I got my <leed, ami had it evei' since. It
was after I had cleared the parcel — al)OUt loth Jnne —
that he went on the small parcel for potatoes. I j^ave
him lil)erty to take some falling wood. The wood he took
was taken last winter.
Cross-e-r.r(,mine(l : He wa' a mason, and asked me if I
would allow him to plant two hushels of oats. His family
was living with him. This occurred alxmt 1st June. I
liadn't the parcel cleaied otf' until aftei' ^lay ; the pota-
toes were planted. Nol»lin Iuki othei- land, ;! acres and
a house, at the time he sold to me. This land was in
another concessi(jn. He lived thers' with his fathei-. 1
would not like to give li520() foi- the '■'■> 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.
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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 <lu<' with tlir le'lp of my
hrothei'. My father left no will. I am not sure that any
deed has heen made to my mother. My mother jiaid
nothing oii the moi'tgagi'. My lirother paid something
on it. An«)tlu'r lirother. I'harlie. jiaiil something fm it:
he is dead. Tlu' property is worth >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, "<io
ahead," and I would see that it would hr paid. 1 can't
it'iiiemhei' that anything else was then said. There ai-e
foiu' hrothei's of us still liviny;. I meant that :f the other
hrothers diil not lielp her to pay, I would. I don't re-
iiieiiiher that any of my sisters or hrothfrs weic jire.sent.
There wer*.' five hrothers when my fathei' died. Tliiei/ of
Us Were eaining at tlie time, and all <jf us paid our wages
« f
= 1 H
I! \
m
II V
174
PROVINCIAL ELECTION'S.
[a.d.
or SOUK' of tlicui to lay iiiothei- from tiiiit' to time. Two
sisters weic also working, ami I suppose they gave my
mother some too; I understood tliey were doing so. I
gave my mother as high us .<S.') at a time. Vov tlie pre-
sent year I liave given hei- .^:50 every niontli. She uses
part for the expenses of the house. My hrother L;ave her
some also. We have been getting S-K) a month for the
last three months. 1 have g<jt scjmetimes 840, an<l some-
times more. I think I have given her 836 or 8-S7 at one
time. I never gave her as iinich as 840. My father had
been away for five or six years before lie dieil. He died
in Briti.sli Columl)ia. He u.sed to send merely enough to
pay the expenses of the h(juse. I used to give my mother
something out of my wages befoie my fatliers death. I
did not for a couple of months give her more than I had
been rloing in my father's lifetime; foi' tliat time she
didn't need more. My .si.sters also gave to my mother as
befoi'e my fathei' died. Tln' place is a frame liouse with
rooms. Jf 1 g(jt mari'ied, I don't 1
•enow
eight or nine
whether I would remain tliere with !ny wife and family.
My brothel's were to have the .same rights as 1; they
were all to have tlieir home on the place. Notliing was
said tlien as t() iiiv sisters. S-SOO has 1)
'en pai<l (
1)11
th
place since my mother l)OUght it ; 8200 was paid down,
and 8100 last fall.
\l '
Mr. /f'trri-ion- contended the vote was good, both as that
of an owner and an occupant. The mother was trustee
for tlie children. The l)oy was the head of the house, and
ia loco parrnfli^.
Mr. Fru.Mr obji'Cted that the a.ssessment was too low to
(jualify the voter.
Mr. Harrison said that oVjijection had not l)een taken.
Mr. Fraxcr reail the lieading of the ivspon<lent's list of
objected votes, an<l sh(nved that it used the wonls "that
the pei'sons ol>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 <Hd not say that the pi'operty was Itought for
him ; he saitl he woidd see it paid for. The presmnption
was that it was lM)^^•ht foi- the mother. For the present
the \ute is struck off!
W[M,1AM M. .lONKS" \()|'E.
WlUunii II. Joins: I reside at Broekvillc, out of thi'
Riding of South Grenville. I vote<l on ical jiroperty in
Pre.scott, east ward, four acivs. I am owner under my
mother's will [copy of will pi'ocUiced]. "Six hrotliers and
sistiMs ha\'e not yet come of age. My mothei' was owner
at hi-r death. 1 have heen in possession sinct' 1.SH4, and
ill receipt of the profits. J have renteij it and lieeii
assessed foi' it. Mv motlier rhed iulS()2. In October
]<S().S, I rented the pi'emises to one Knapp foi' thice years.
I got po.ssessiou fi'om him in the fall of I.S71, his tei-m
having expii'ed. Knapp lia<l not the whole four acres. 1
used the rent of the four acres. 1 have liceii selling' ])or-
tions of the (h'\ised [)roperty. 'J'en children survived mv
mother, and are still living. These are not yet of age. 1
never live<l ow the property on wliich I liave voted : all of
it tliat I own now is vacant. No impi-ovemeiits have liei'ii
made on tlie unsohl lots; they were uniiiipi'oved at mv
mother's deatli.
Cross-Ci'amined : I would not takeSl,-')ii() for the whole;
I wovd<lii"t take less than that. Some of us were of ain.'
ill May, 1<S71 ; no nioi'e of us are of age now. I don't
sui)port any of my hi'othei's or sister.s. Very little rent
lias heen received. If they want S'> 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 iiia<lt'
to liiin a (Icnl of rear hall' of '17. in (itli ('i>iU'i'ssioii. on tlic
LiTtli Kcliinary, ISJI. I lia\c lia<! iiotliin^' to rlo witli the
land sincf 1 sold to (, 'aipriitfr. lie lias kcjit it and oc-
(.'unii'd it over siiu't'. I own ')0 acres in all. I liavi^ no
iiiiipfrtv cxcciit that (K'sci'ilicd in the |iroiluci'd deed.
Cni-i^-ci'iniiuinl : I li\r on Lot '!'■]. in <!tli concession. I
have owned it for a year and tliree-(|uarters. I owneil no
other |)ro[)erty last year. I hail 100 acres rentecl fi-oni
Burns. I had it for three yt'ars. 1 <;'ave it up .May, Im72.
This property is also in the Oth concession. It is ahout
three-([uart<'i's of a mile lielow wlu'ic I live, west of inc.
Till' lot I sold to Carpenter is west of me. 'I'he ])lace I
jt'iite'l adjoins the Carpenter lot. There is a Thomas 1).
I'lace in the township. I have hail nothine- to do witli
the lot sold to Carpenter since the time I sold it to him.
1 can't read. 1 houu'ht the 2.") acres I live on from Colvillo.
The lot J leased from Burns is the front 100 acres of tlie
same 27 already mentioned. 1 paid the taxes of tlii.s.
Jii -I >■'(,/! 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\iilc<l t'or in the statute and in tlic \ utoi's oath. Vote
li.'l.l \ku\.
mn'.KiM' sTi;\VAi!'i's \()ii;.
Jlnlirii S/fii-iirf : I \(itr(| on part of \jnt '-^7 . 4tli ('on.
Anuiista. Tlic fired priidnccd is to niysdt' and my lifotln'i'.
Jlc and I lia\(' Keen joint owncis since onr purchase some
\ears a^d. Two or three acres were under cu hi \at ion hist
year, llosnahl l''ield was culti\atine' ii last year, lie
was not assesseil I'oi' it. Thei'i' are 40 acres more or less.
1 did not see the assessor. My lirothei' had a \ote on
other land, and is assessed for it.
I '/■iiss-( itiiiiilli'/ : \ did not L;'i\'e the \alueot' the lot to the
a>sessor. 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 latt<T Aet any corruiyt practice " ctjunnitted l>y 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<l not know liis naiiic ;
I ncvto' saw liini lift'oi-f or since ; he naxc nic sonic; it
was at tlio j)ollinu' [)lac(' in Sinicoc Street; it was at sonic
lioui' in the iiiornin,n' after tliv |)oll opened ; I do not
know who it was; lie had only one liottlu; I think \\r
ifave it to otliei's. (^). — Do vou know any one who i^nt
any
A.— N
o ; wlien
tl
le man came ud
]
saw lie wa.-
somewhat intoxicated; I ne\er heard him calle<l hy name.
I do not know who he was. (^).— Did you remonstrate
with him ! A. — Yes; it was a veiy cold day ; T had heen
out from !) o'ch)ck in the morning' to this hour, aliout I 1,
and it was veiy cold and stormy; and he was very pressing;'
that 1 .should take some, and at hist I did take some and
others took some ; 1 ]nivv not the slightest idea who he
was. Q. — Do you happen to know whei'e he got the
licpior? A. — No. Q. — Wliat kind of li(pior was it^ A. — It
was, I think, whiskey. (^. — That was the only liquor you
know of luuing hecn given (jn polling day ? A. — It was,
except after the election was over.
C
i'ofi^-r.mimno
l: (J. — This ahout the bottle occurred in
the street .'' A. — Yes. (^. — Was he particulai' in 1
attentions, or did he give the li(pi(M' to Itoth parti
ii>
(,'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 sai<l thrt-e cases of treating had heeii
proved — one by Mr. Ball, another, the treating of an
is?.'..]
\V|;ST T(»I{<»NT().
IM
uiikii(»\\ii priNoH \>y Duplex, uinl tlir tliii<l, tln' treat-
ing' (if Ml". .Macildiifll ]>y 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<l [troliihited acts in I'i'ference to
(lections oi' any of sucli offences, rmler that Act the
HmrLrilli election trial (milr p. \:V.)) took {ilace, and the
(durt of (^)ueen's iJeiich coirstrued the law so that the
woril "coi'rujjtly ' was heM to i;'o\erii the whole section.
Ill till' original ()iitario Act, trentiiii;' at ineetine's was a
corrupt })i'actice when done " witli intent to ])ronioti' the
eli'ction ' of a candidate. That pluase e()vcrned tlic whole
section; hut the Le^islatui'c hail oinitteil tliat i)lii'ase from
the new Act (•"}(! Vic, c. '1, s. '1) with the <lesieii of
uettiny' I'id of the (piestion of " intent "" altoj^'ethei'.
Tile manifest jiolicy of the law was to sto[) the L;'i\'in^' or
si41ine' of li(juoi's on thi- [lollini;' day, whethei- the intent
were innocent or ni^t. He ivferreil to the Interpretation
Act, •■)! \'ic., cap. I, sec. N, suh-sec. oi), to slu^w tliat all
statutes were to he cousti'Ueil in a fair, lar^'e and liberal
manner, so as to ensure the attainment of the ohject (jf
the Act. The ohject of the [)rovision in the Election Act
was to prevent tlie ;L;"ivinn' or selling' of li(|Uor. Two per-
sons must he concei'ned in any such transaction oi' viola-
ti'Hi of the law, and so tin; person who i-ecei\'ed the li(|Uor
was as much a violator of the law as he who L;,a\e it.
AV' v. ntl, 8 Burr. \'-]'-\b ; and R( ' v. I'lniijliua, 4
f \\
\\\m
)0I,
It had heeii ariiUeil tliat wliih' it was an
oti'euce to receive a hiilie it was none to e'ive one ; hut
Lord Mansfield said that what it was a crime to take, it
was a crime to give ; the two things arc recijirocal. It
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182
FUOVINCIAL EI-ECTI<>NS.
[A.1,
was clear that it' Mr. Maedoiu'll luul </\\rn tlic li<|U(»r Iw
would liavi' vi<^latr«l the section, ami it wouM he an
aiu)iiialy to say that in receiving;' it he was not also guilty
of a vi(>latioii of the law. In tlie Connni// msc (l)oni.) {n)
the Chancelloi' had held that the old canon of a <listiiic-
tion of construction between penal and civil statutes did
not now exist. Mr. Mncdonell, as a^t'Ut of the respondent,
had lieen guilty of an act in diiect o[)position to the
s[)irit and intent of the law, and if it weiv not so held ii
would open the door to im ea.sy evasion of the piovision ot"
the statute a<;ainst corrt , f p,i-actices. It nii<,dit he sai'! that
an election should )iot he lightly set aside, hut a .ludgr
had <leclared tliat if oAi> 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<leil
election law was to > !(»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 ma<le the
jjfround of avoidiuLj it. He contende<l theie nuist he
an "intent" in the giving of li(|Uoi', and that the
simple gi\ing or selling of a glass of li(|Uor on polling day
would not avoid the election. He thought tlu' clau>e
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<l into at the trial was that the respondent wa->
(n) Kcpurtud Doiiiiiiioii KliTtinns, 1>74, /kiiI.
IM.').]
WEST TDHONTO.
isa
personally ami liy his a<,a'nts, hrt'or*'. duriiiu' an<l at'tn- tlu*
elt'Ction, j^niilty ot'cori'mtt i»iactin'.s, as ilffintMJ l»y the C'<»n-
ti()vtM't('<l Elections Act of ISJI and the Klcctions Act of
\s7'-i, wlicrchy tlu^ said election had lieconie void. Mr.
lirthnne oiMMied the case very V)rieHy, stating' that it was
iiiH)o.ssil)Ie for him to explain what particular facts he
expected to prove hy the diHeretit witnesses he .should
cull. They all, or neai'ly all, helonLjiMl to the opposite
paity, and it wotild have Iteen useless to apply to them
fur information. He could ttnly say that he hojx'd to
prove that there weri' con'U[)t practici's, as detined hy the
statute, and that they wei-e committed liy or under the
authority of the responilent oi- l>y 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
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1M{< (VkXCIAL ELECTK t.NS.
[A.n.
po,s8iliility of douUtinjL,' tlmt he was a^'cnt cf tlu' luspoiul-
ent. He liiuiself a<linitti'<l that ]\v icn-ivcil ami •Iraiik
soiiH' li(|ii()r<lurin«^f tin- jiolliii;,^ liouis; aii<l Mr. Betlumc ctm-
tcndc'*! tliat till' oii^'inal OiitJirio Act. -i'l Vic, cap. 21. sec.
<!l,wlii('1i Hindi' tivatiiij; witli intfiit tt» ]>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\ve<l tlmt the ort'ence no lon^'er con.si.s^ed in the inttiit
l»ut in the act. He tlu-n urmieil that the peison who
di'ank li(|Uoi' ^iven him was as nnich an oH'endei' a^cainst
the (i«lth .sec. of >i'2. Vic, cap. '2\, as he who <;ave it; and,
therefore, as Mr. Muctlonell had accepted an<l <liank
within the limits oi' the municipality some spirituous or
fermented li(|Uor duiinj^' the time when the poll was open,
an<l was an ayent of the respondent, that act was suHicient
to avoid the election. Tiie point on which the petitioners
ea.se was tinallv rested was not raised or hrouirht undir
my notice until the last witness called t(j suppoit the
petition had I»een examined. Not out- instance of liriheiy
had heen — 1 will not say estahlished : hut there was no
evidence Ljiven upon which there was even a j>riiiid /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 evi<leiui'
which was in my judtfment sufficient to pi-ove at least
two cases in which this clause of the Act was violated.
But in no such case was there any evi<lenee connectinij
the ott'enders with the .successful candidate oi- anj' of his
1-
IS?:..]
WEST Ton< )NT( ).
1 S.')
a^'t'iits ; ami for this ivasDii the pctitiojuTs counsel gavr
thfiii up.
Tlicrt' iciiiaiiUMl ono nisf, liowcvfi', in which tln'ii*
was DO such ih'f«'t't. Mr. Macfluiifll was fxainiiu'd, ami
unt'(|uiv<»cally a<hnitt«'(l liiiusrlf to Ik- an aijcnt of thr
r(s|i()nilt'nt for the |turj)ost's of his clt'ction. He ;ra\»' in
fvidciK'f that !h' was at No. I ilivisiun. St. Patrick's Wanl,
ihnin;^'^ the |lollin;^^ Thci-c was a uwin at the ]»oH ni; hooth
till Sinicof Sticct, upon the street, who hail a liottle ttf
Iii|Uor, an<l who seenietl to lie a Htth' intoxicate<l. Mi'.
Macilonell ili<l not know his name, an<l has not .seen him
since, nor has he any iilea who he was. The ilay was cold,
the man was very pr<'ssin;,'. an<l Mr. Maeilon"!! took some
whiskey from him. It was iluiini;' the hours of pollin;;.
It was contemlol that this a\oii|e<l the election; that
thei'e was a clear violation of tin- statute; that rn|Uoi'
conM not he yiven or s(»l<l unless there was a ])urehast'r
or a rect'iver; and as hy the act of reci-ivinn' the ^river
wa-' rnalili'd to connnit tin- ottt-nce, the n-cciver liecame a
jinrlin px rriiiiiiiU. Reference was made to the definition
of corriipt practices, in the .'^4 \'ic., ca)). •'{, sec. ;{, and
to the repeal of that detinition l>y '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 calle<l upon to decide. It leaves the
point untouched whether the woi-ds " No spirituous
li(|Uors oi- fermented licpiors or drinks shall l>e 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<li' ajiplicahle. It mii,dit
have lieen arj^med on the part of the respondent with as
nnich show of reason, that the t'arlier part of the section
shows that the LeL;islature had in view a strinj^'ent pre-
ventative to the danj,ji'rs of havinj,' taveiiis and other
places where rupiors are usiuilly sold kept open during'
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IMtoVINClAL KLKCTIONS.
[A.D
tilt' pollinj,' flay, ity iciniiiiin;' sucli placfs to lie kept ni\ni.
iiixl l»y t'()rl)i<l(liiiy: tlie sale (»t" sm-li liiniors. In the (JStli
section the conti-at'tiny to vote tor nioiU'V and the I'cci'iv-
ing of money on aceoinit of havinj; votcil or refi-aincl
from votinj;. arc treated an<l snlijccti'tl to a penalty as
distinct offences, thouiili in tlie i)rcccdinir section tlie
!Hivin^' or lendin^^ money, or aeiveinfj;' to do so, to inHnence
a voter, is sulijectcd to the same ])cnalty. Tlio Lej^is-
latnre in tliat instance evidently did not consider that hy
pnnishin;!,' the lendei- or ^^iver of money, they had als"'
l)ro\ided foi' the punishment of him who Itori'owed <ir
received. Upon the construction contendtMl for hy the
petitioner's counsel, in making' the (Kith section consist
of two separate parts, the tirst relating; to tlu' closin<;' of
hotels, vV:c., ami the latter of a n'cneral charactei-, it appears
to me that if any person in his private way ^dve a i;lass
of wine oi- lieei- to a fiiend who happened to call upon
him durin^i' jiollini"- hours, he would himself l»e suhject to
the pi-nalty of !5l()0, and his fiiend wouhl he similarly
liahle. I have not now to deal with the former of tliese
prop))sitions, hut the latter is inv(;lve(l on the present
occasion. I cannot ado{)t a conclusion wluch appears to
m»' unwarranted l»v the plain meanini'" of the words of the
Act, loi" hold ihat where the Legislature provides foi- the
piniishnu'ut of one particular class, which they distinctly
define, they intende(l to indutle another to which they
make no refei'ence unless infeientially, and wlien, hy the
()7th and ()(Sth clau.ses of the Act. they show tluit they
considered that hy providing for the })unishmeut of the
giver of a hrihe they had not provided for the ])unishment
of the receive!' of it. Foi- these reasons I feel compl-lled
to hold that the j)etition is not proved ; that the re-
spondent. Rohei't Bell, was <luly eleete<l and returned .
and shall certify ficcordinely to the Si»eaker. I shall alsn
report to the Speaker that no corrui)t practice has l)een
proved to have heen connnitted at the said election ; and
that there is no reason to helieve that corrupt practices
have extensively prevailed at the sai<l election. Co.sts to
follow the ev^ent. (0 Journal Lci/is. Asscm., l.S? ')-(], p. 20.)
j: ■ m
IM.').]
WEI.LAND.
is;
AVKLLAM) (2).
REI'oTJK Mh. JlSTICK (iWYNNE.
Wki.i.aM', lUh, ISih iDiil .'Sth M,i)i, IS7'>.
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/iij<ifi'n /nil ('iiiii'iiilUni, iint Aiji iilx Aiiiin'il uml Siili-
A<i'iii'!i — Corriiji/ -/'rnifirr hi/ ii /iin rii-hi/n-r im a Siili-Aiji nt
.:'.' I'ir., r. ,.'!, s.s. I,] (tilil 'H: : .11: Vic, r. ,', s. .'.
IJifdiu suliji'(tiiij,'ii oiiiKlitlatf t(i tlu' jtciialty of ilisi|ii,'iliticati()ii, tlic .lii(l;;f
sliould Ifi'l Well jissiircil. licyoiid iill po.ssiMlity of miwtukf, that tlu'
(ptlciii'c cliaigi'd in e.stal>li.>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<le, the costs in resjiect of the same were
given to the respondent against the petitioner.
Ahmit an hour after a meeting of a few friends of the respondent at a
tavern, one of theii- numlier was sent some distance to liuy oysters for
their own refreshment, of which the parties and others ]iartook. The
IiiUowing d;iy a friend of the rt'spoiidcnt treated at a tavern, and not
having change, the respondent gave him 'i."i cents to jiay for the treat.
II' III not to he corrupt treating, nor a violation of .S(i Vie., c. "J, s. 'J.
Wiierc the evidence as to the otter of lirihes was conti'iiilictory, ami the
parties making charges of hribery appeared to have home indill'erent
charat'ters :
//'/'/, that the oU'er of lirihes was not satisfa .'torily estalilishcd.
Tile delegates to a politi<:al convention a.'semhh'd for the purii-isi- of
selecting a camlidate, who never had iiitcicoursc w ith the candidate
selected, and who never canvassed in his ludialf, cannot lie coiisidcrcd
,is agents for such candidate.
The respondent gave to one H. some canvassing hooks, with directions to
put them into good hands to he selected hy him for canvassing. H.
gave one of the hooks to H , a tavern-keeper, ami H. canvasseil for the
resiiondent. li. was found guilty of a corrupt practi<'e in keejiing tliat
part of his tavern wherein liipiors were kept in store, so open that
persons could and did enter the store-room and drink spirituous li(|Uors
there during polling hours on the day of election.
J hill, that H. was specially authorizeil hy the resjiondeiit to appoint
suh-agents, and had under such authority appointed H. as a suli agent,
and that the oorrujit practices eomniitted hy ]{. as such suli-ageiit of
the respondent avoided the election.
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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. P<lir Mrf'nrf/n/ t'ur jxti-
tioiicr.
Mr. Ar/In'r S. /fiin/i/, hhiI tin liispunili iif i)t jiirsmi, \'<y
tlif rtspondfiit.
Tlif ex iilciicf in su|ntoit uf tin- (•liMro[cs jiLfaiiist the ri
)t>iii|t'iit ami liis aijciit.s is s«'t furtli in tin- ju<l;,nin'nt.
(IWYNNK,.!. -At tlw (•!<
.f tl
!»' t'vnicncr
tak
en m this
th
niatttr. tlic cinniscl fur the iK'tititmcr icstrd his ease tijiun
tiNf iiuints (i|inn wliicli the rt'spondcnt sluniM In- unsi-nti*!.
( 1 I I jMin till' i,q-ouinl <it" intiniitlatinn liy hinisclt' |MTs(inally
in his siict'ch at thr nnminatitui, as toCidVcrnnirnt .servants
on thf \Vt'Hainl Canal: {'2) njton the i^rotnnl nf tivatinir,
ooniiiifnfiiiL:' at the oystt-r sn|>|»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<l as snch thi'eateiied one Sanniel Fraser
that he wouM lost- liis employment as lirid^fe-tendei- at
the canal unless he shoiiM vote for the respondent; and
(.')) for coii'tipt practices eommitted in violation of .sees, (il
and <»<) ot :\'2 Vic. cap. 21. hy one Ijiitlier H(»aidnutn, wlio,
as i.s asserted, was an a;^ent of the respondent, and for
whost- act the respondent is to he held rcsponsihie.
lU'fori' snlijectinj^f a candidate to the penalty imposed hy
suh-sec. 2 of sec. •'{ of M Vic, cat). 2, I should feel
we
assured, lieyoinl all possihility of a mistake, tliat the
otience ehaiLfed, which is attenilecl with such consequences,
is estahlisheij. If there he what appears to he an lionest
C«»iit1ict of testimony as to tlie existence of these matteis
which constitute the otlence char<'ed, or if these matters
1M7.-.]
\VELI-AXI>.
ISO
consist of acts or langua;;*' which aic rcasonalily siisct'ii-
tihlf of two iiitt'iitrctatious, one innocent an<l the other
(•iil|ial'li'. a vt'iy Lf'i^^' n'M])o)\siliility is imposed upon the
.lnil;,'e to take eare that he sliall not ailopt the ciilpaMe
iiiteipietation tinh'ss, after the most careful consiWeia-
tjoii he is al)h> to ;;ive to the iiiattei- in han<l. his minil is
(•on\ incetl that, in view (»f all tlie circumstances, it is the
nnly oMf which the evi<lence warrants hisailoptin^- as the
Illlr olle.
.N.iw, as to the liist (»f the aliovi- charifes, namely,
intimi<lation in the ri'spontU-nt's s]H«'ch at the noniina-
tinn, it is to l>e olis(i\ci| that it is <nflicult to hclicNe
that if eouM have «'ntere(| into the minil of any man
of oidinaiy intelliLicnce— not to say of a Li'eiitleman of
the le^^al profession an<l of coiisith-rahh- experienei- in
puMic hfe — at the nomination, in the ]>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 \<ite for him or who shouhl vote against liim ; an<l it
seems (|uite incredilile that if sudi a threat luul l>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. alth<m;,di
ill the heat of dehate, and un<ler the irritation caused
]ieilia)is liy the manner in which the respondent was in-
teri'upted hy the witness l"p|ier, he may have made use
ef some launua;L,'e which had hetter have lieeii left unused,
there is no foundation for the corrupt charge, namely, of
iiitiiiiiilatitsn, whii'h has heen maile apxinst him : an<l 1 am
"f opinion that this charge shouhl not have hi-eu ma<Ie,
iiml I shall theret'ore direct tluit so nnich of the costs of
tin- petition and trial a.s relates to thi.s charge shall he
paid hy the petitioner to the resi)ondcnt. \
As to the .second charge, involved in what is conten<le<r
to lie corrupt treating, l>y reason of the oyster supi>ei' at
^^hiteman's tavern, an<l of the treating which t(jok place
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l'U(»VIXCIAI, KLKCTIOXS.
[A.l.
ut tlu' saiiM> 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 Iia<l Imth Im-M at Wliitcman's almiit an Iiour
lirt'oiT tlif oystrr sii]i|)fi' was a iiu'ctiii^ of a tVw tVit-nils of
til-' rt'siioiitlriit, and that after haviii;; traiisactcil what
laisiiuss they may have ha<l in hand, and ahoiit tluce-
t|Unrtfrs of an hour to an hour after th«' close of tlu' meet-
\w^, they fof their own refreshment procured one of their
numhei' to l;-o to Port ( 'oil lorne, .some little distance otr, tn
liuysoiiie oysteis, which ha\ in^ Iteen procured, weie at their
own exitelise, or at the eXpells*' of .some of them, serveil
up at Whiteman's tavern; and althou^di one or jterhaps
two persons who had formerly lieeii and were still helieveil
to he friends of the respondent, and to lie then present as
such, hut who in this election afterwartls jtrove<l not tol>e
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<l not having- any small change ahout him, did
receive from the ivspontlent 2') cents to pay for the treat.
Now, whetluM- or not the.se acts or any of them were done
with the corrupt intent of iiiHuenciny tlie election, is a
(piestion of fact to be determined accordinj; to the circum-
stances disclo.sed in the evidence. The lan<i[uage of Mr.
Justice Blackhurn in the Bcwdlfi/ case (1 O'M. and H. 20)
is the most appropriate upon this point, and I hesitate not
to a<lopt it in leading; me to my decision upon this point
of the case. He says : " In considering what is corrupt
treating and what is not, we must look broadly at the
common sense of the thing. There is an old legal maxim
hs7.'..l
WKLLANI).
I!M
//(/«/• iiiii<i.'> 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|i<mi a siM;;li' case nt'
tliat suit, wf slioiild l>i' 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'<l. as it aiipeais to
iiie, to I'linii' il most wholesome law into eontenipt. I
liiU>t tlieret'oi'e liold that this chai'Lje is not estahlished.
As to the I'hai'^'e invoked in the tliir<l of the aluive
lieads of coiii|>laint : 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 <if Ihllems havin-'
lieen upon oni' or two occasions, or jierhaps oftener,
■<|iecially re(|Uested hy the respondent to attenil at ])uhlic
iiieetiuLis of the electoi's for him and in his stea<l, and
to aildress the meetiny:s (in his liehalf, would constitute him
an aj^ent for all those acts done to promote the respondents
election, and would render the resjumdent responsil.le.
As to the fourth chai'ge, Samuel Fraser ami his w ife,
who make the charge, are contradicte<l hy Haij^ar, the
pcr.son against whom it is made. Theii- is no evidence
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I'HOVIXCMAL KI.KCTIftNS.
[a.i».
U'-^i
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: 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; <li'l(';,fati'.s sfiit to th«' convention whicli put
foi'ward tht.' I'espondeiit as the candichite of the Keforin
party. He does not appear to have lieen spoki'n to liv
tlie i'esp(»ndent, or to have lieen dii'ectly or indirectly
I'ecpiested to act in any j)artic«iiar foi' him. A canvassiii;;
hook containing;' the names of the voters in the t((wn of
Weliand api)eais to ha\f ^'ot into his pos.session, l»ut how
it did ;,fet into his possession does not appear, and he
distinctly swore that he never made any use of it. Now.
altJKtU^di the respondent was put forward l»y the Keforiii
A.ssociation as the candidate of the party, and altliou^di lie
accej)ted tlic nomination, and althou^di a candidate put
forwai'<l l>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>le<l for
the j)urpose merely of selecting a candidate, although ho
never had any intercour.se directly oi' inilirectly with tlif
candi<late, and although he does not a[)pear to have acted
in any instance or canva.s.sed oji his behalf, unless in tlie
sole particular case which is charged and relied upon in
avoiding the election, is an agent of the candiilate, so as
to make him responsihle for the act complained of. If it
could l)e .so held, it would make a delegate oppo.sed to the
nondnation of the CJiUflidate selected by the majority, alik'
to defeat his election hy a sin<de ca.se of l)riliery com-
nutted for the express purjmse of invali(hiting the election.
In short, in such case the acceptance of the nomination
l»y tlie candidate selected by the majority would liave the
eti'ect of con.stituting every niendter of the convention,
1S7.V] wKi.i.AXi*. ]'.):\
wlit'tlitT 11 supjHd'tcr* oi' i)|i|)i»sr(l tu till- nniiiiimtiim, nf
the caiitliilatc sclt'ct*'*!, liis a^^i'iit, t"i»r wliosc nets tin- ciiii-
(li'liiti- woiilil 111' ifs|»(»nsililc. Sucli a ifsiilt \vi>uM \>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 ili<l coniiiiit the otfeiice ot" whidi Fraser and his wife
accuse him, as to which 1 <lo not, foi this reason, think it
necessary to express an o])inion.
There I'eiiiains to lie consideicd the fifth LTi-ound of
cuirplaint, for the consiilei'ation of wliich I resei'\e<l my
juiiuiiient. That liUthcr I»o'u<l.iinn has heeii u>iilty 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<l durine' the pollinj.;; hours, keep that pait of his tavern
wherein his liijuors were kept in store so open that all
persons attending' the poll for the jiui'pose of voting' could
and ili<l, at theii- fi'eo will and ]ileasure, enter the room
and drink sjiii-ituous li<|Uoi's there kejit, and I have n<>
ditliculty in <leteiiiiininj;- that this store-riom was kept
accessihle in the manner in which it was. in order that the
per.sons attemiini'' the poll mi^ht so enter it and sujiply
tliemselves with (h'ink at their jileasure. If .such conduct
as is here hrouglit hcjuie to Hoardman were not pronounced
to he a plain violation of sec. (i(i of H'l Vic, caj). 21, that
st'c-tion would he a dea<l letter. But it is not only as in
violation of .sec. ()(i tliat the conduct of Boardman is
>^fc^
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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^' aiouM<l |M»lliMtf places, witlilioldiii^ their votes, uii-
(leciik'il until tin- last iiioiiieiit how they shall vote or
wliethei' or not they will vote at all, and who, knowiiii;
that this place was open, where their appetites for into\i-
catiiii;' tlrinUs could he ^ratitied duriiijj," the entire day
could readily he induced, when their seiisi-s iiiij;ht hi-
steeped ill iiiehiiety, to sote for the can<li<late known to
l.e the fiit'iid of their liheial entertainer.
'I'l
le oniv (lUestloli W
hiel
1 remains is w
hetl
ler or not tlir
respondent is to In- all'ected hy, or whether he can claim
exemption from res[)onsihility for Boardiiian's corru]it
conduct — wlu'tlier, in fact, Boardnian is or is not to Im-
reuarded as an aiieiit of the resi)ondent so as to make the
latter responsihle for the acts of the former.
The law of au'eiicy as applied to election {.etitions Iijin
lieeii I'Xpressed hy ditfereiit learned judu'es to he (piiti'
difleieiit from that applied to the common relation of
A caiiilidate," as is said hy (iio\,
:{() L. T. N. S.. 1:^7,
inav oe, anil
priiK-ijial and au'eiit. "
J., in the Tuimhin ruse,
I would add that, unless the whok'soine Act passed for
the purposf of pri'veiitiiiii- corrupt }trac*^ices atelections lie
\v
oi
liolly frustrated, he must he res])onsihle for the acts of
le actiiiii" on liis In-half, thouu'h the acts are heyoiid tlir
■ico])e of the authority iii\en. or indeed in violation of tlir
most express injunctions."
So far us reL;'ari
s the present i|Uestion, to es
talili
agency in IJoanlman for which the respondent would h
ivsi
lonsi
hie. 1
le mus
t h
proved to ha\e
hv 1
uiii.se
If
or h\'
an authorized a^t'iit. emplt>yi'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<lf tln' caTnIidatc
iv>]iniisil»lf l'(ir tlic acts (if a suli-aj^'t'iit as well as tlu' aLffiit,
t\(ii tlioivuli tilt' cainliilatt' <litl not kiiDW antl was not
liriiULrlit into |ii'i-s()nal contact witli tlif snli-ULivnt.
I |iii>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 <lt'leu"ates were in the
lialiit of actiuL;' ( with one of their nundn'i" as chair'nian)
a^ local hranches or coiiiniittees of the Reform Asst)ciation
in tlii'ir resjiectixt' municipalities. The convention of
ili'li"j,ates so constitnti'il nominatfil the I'espoiiilfnt as the
caiidiflate to staml in the Reform interest. The i'es[M)ndent
had hi'cn put forward in like manner upon former occa-
sions.
.Mr. Pricf, Reeve of Wellaml. himself a niemher of the
fiinvi'iition. says that the committees of the Refoi'm As-
>'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<l that
witui'ss nevei' knew him to repuiliate those committees,
wliich have always acted for the catnlidate, althoun'h he
sivs that Mr. Curi'ie never atteiitleil the conuaittee meet-
iiiL;'^. In foi'mei' elections a cfutral committee of the
lu fonn Associatit)!! used to iin'i't. iiiit none met at this
t-'k'Ction : hut he was not aware oi' any reason why there
\va> 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'cte<l as (kde<jates to
tlie convention wliich nominated Mr. Cui'rie, an<l he was
a wai'iii sup})oi'tei' of Mr. C'luiir on formei- eh'ctions.
Upon this ehiction he was an active canvassei-, and worked
foi- Mr. Currie, and tliat was well known. Mr. ('urrif
wrote to liim apiiointin^' a nieetinn' of eiectois to he hcM
foi' tlie township of CJrowhind, aiid re(|Uestinj4' him to ^vt
his friends to turn out and attend the iiieetinu'. Mr.
Currie himself came to the meeting, which was held in tlif
Town Hall; hut Itefore the nieetinu' at Boardiiian's taveiii,
where he was stayinn', he gavi- to witness 10 or 12 can-
vassing hooks, with tlie naiiit's of all voters printed ni
each, made up hy Mr. Currie himself from priuteil voters
lists, which he cut into slips and pasted in hooks. These
hooks, Hendi'i'.son says, M'(Me given to him hy Mr. Currie
to put " into good hands to he selected hy him fm
canvassing." He does not know that Mr. Cui'iie knew
that he was chairman, hut he knew that he (Hendeisom
had canvas.sed hefore for him. These hooks Hendeisci
distrihuted among the other memhcrs of the Reform Com
mittee of the township, ami one he gave to Boardiiiaii
not, however, a niemliei'of the committee. The inteiitieii
was that all were to report the progress of their work t"
the central committee of the Reform Association on iionii-
nation day: hut the husiness at the nominaticju was so
protractetl that the ct'Utral committee did not nieft.
Wlu'ii Mr. Currie gave the Imoks to Henderson, he said
they contained the voters lists, and '" we were to see Imw
the parties wouM go." Boai'dman was the only canvassi'i
in the school section where he lived. On the Saturday
het'ore the polling tlay there was a meeting of the com-
is?.").]
WKIJ.ANT).
197
iiiittt'i- of eiylit and a tVw otluTs at Hoaivlman's. Boanl-
iiiaii liiiiisclt' was tlit'ix', ami he, as well as others, iiiadf a
i.tiuu i>f 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<ls in the different
municipalities. He knew that Henderson was workiny'
fur him, an<l in that cajiacity he gave him the hooks, iK^t
a^ cliairman of any committee. He thouglit the hooks
wiiuld lie of service to his frit-nds, and he ga\'e them to
Ihiidtisiin at Boai'dman s to enahle them to advance the
canvass for him. and to let them see who the voters wei'e.
Ill' left the election, he says, to ii is frien<ls, and Henderson
iiad lieen a frieiiil of his r'or three years. He appointed
no scrutineer hut at foiU' polling places ; the rest were
appointed hy the local conuiiittees in the respective muni-
cipalities. The committee of which John Jieiidei'son was
cliairman ap[).iinted James Henderson, John's lirdther,
M Tutiiieer for the poll in the townshij) of Crowland, held
where Boardnian reside<l,and on the Sunday hefor"' the poll-
iii'iday John informeil the respoinleiit of his a[ipointment,
aiul lie approvctl of it. The respondent says that he him-
M'if di'spatchei] the posters for meetings hy mail or parcel
p'ist, and Boardnian says that the postei's for the meeting
at LVowland came to his address. Jioardman, in the course
iif his canvass, ascertaineii that a Mr. Brough, although a
ti ieml of Mr. Curries, was cross ahout some slight, and he
1^
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198
PRDVIXCIAL ELECTIONS.
[A.I..
advisL'il Ml'. Curric tliat it \V()ul<l lie a<lvisa1)l(' for him to
go and .see liiin. He .says that the hook which he ha<l wjis
liarnleil to liiui t'oi' the pmpo.se of his canvassiiin- tlic
.school section in wliich he lived in Mr. Curries helialf,
and although he did not, as he says, go through tlie
.section, he canvassed all per.sons who came to the tavein
and shop, and made, as we have seen, a leturn to Mr.
Henderson of the result.
Under this evidence it .seems clear heyond a douht tliat
John Hender.son was the agent f>f 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 <lid a]>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<le tlie consecpiences and lie I'esponsilili'
for the malpractices of Boardman, althougl.i such mal-
practices were committed without his actual knowlrdm'
or con.sent. The .Srd section of •'»(! Vic, cap. '2, h\ that
respect is \-ery explicit and \fry pcrem[)tory. My painful
dtity, in accoi'dance witli the view I feel compelled to take
of the evidence, is therefore to declare the election of tlif
respontlent to have been and to lie ntdl and voiil, hy
reason of corrupt practices committed hy Luther Boar'l-
man, an agent of the respondent, in the })romotion of his
election, hut which corrupt practices Avere connnitteil ''V
the .said Luther Boardman without the actual knowle<l,ut'
or consent of the respondent.
I do furthei- order that the resptmdent do ]iay to tin'
petitioner the co.sts of the said petition and trial, except
so nuich of .said costs as may relato to the second, thinl.
and fourth heads of complaint ahove in this my juili:-
nient enumerateil, as to which .several heads of complaint
1N75.]
RUSSELL.
199
I ilo itidcr that oach paity <1(> 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<lent.
With his certificate to the Speaker of tlu; result of the
trial, tilt- learne'tl Ju<lL;e reporte(l that Luther Boardiiian
\v!is proved to have heen j;uilty of coirupt practices, in
this, that heini;' a tavern-keeper and as such authorized to
sell spirituous and feiniented liijuors, he the said Luther
Boardiiian did, in violation of the provision of the statute
ill that hehalf, keep open his said tavern during- the Injurs
(if polling' on the day of the election; and that he, heing
an ayeiit of the said James Georife Cun'ie,did yive, furnisji
and supply, at a meetiuii' of electors as.semhled for the pur-
pose of voting at (jiie <jf the polling places at which votes
were polled in the township of Crovvland, at the sai<l
election, spirituous and fermented liquors during the hours
in which the poll was Ijeing taken at the sai<l polling
place, to all such persuns, electors and others, as were
(Icsiiuus of partaking of such spirituous and fermented
lii|Uors. and many of whom <lid partake thereof.
(9 Jowrivd L('(ji>^. 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.
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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, an<l gave me Soon
the Sunday an<l toM me it \va.s to pay him. I sent fur
Antoine Lamotte and asked him if he would act as agent
at the poll for Mr. Baker, and that I would .see that it was
all right. The polling |)lace was ahout three or foui* acres
from my tavern. I dont ivcollect Baker lieing at my
place during the polling day. I was hack and forwai'l
during the day. I think Kelly treated, Rohillard treateil,
and I thiidv Toilferd treated durini"' the da v. I ddiit
remember anybody else. I don't rememl)er whether I
treated or not, but I mav have d<jne so.
Mich((c/ McAi'dlc : Was at St. Jo.seph's Village on ]X)11-
ing day. Was at Foubert's in the mt)rning ; M'as treatcil
there ; this was l)etween and 10 o'clock. There were
several treats. Foubert was there ; do not kncjw that
he treated ; seven or eight persons there.
M7\ O'Connor stated that the facts brought out in the
evi<k'nce of Michael Foubert, who he admitted was an
agent of the respondent, weiv sutiicient to avoid the elec-
tion, and he offered t(j do so ; the respondent to be callfd
to ex]>lain the personal chai'ges.
Mr. Kerr accepted thi.s proposition.
\km^
l.s7.').J
lUSSELL.
201
Till' I'ospondont was tlicn calk'il, an<l after denying' tlic
cliai"vs of personal lirilicry adduci 1 in I'vidt-nce apiinst
him. stated as to treatinj;': " My ;;cneral haltit as to treat-
ing" is 'rather free.' I seldom liave entered a tavern and
left without treating;'. The custom of the country is to
treat freely at taverns, and I ftjllowcd (jut my usual
cnstmii."
Si'i'.ACcr:, C, said that the evidence lia<l estal)lished cor-
rupt piactices ]»y an a,t;'ent, hut that no per.sonal charges
ULiiiinst tlie lespondent were pioven. He had no i'ea.son to
believe that lirihery or corru[)t practices luul extensively
prevailed throughout tlie constituency. With regaid to the
a'^'ucv of the man Foubort, he held that he had acted in
or((ss violation of the law. He di<l not adjudicate that the
respondent, having left S.') witli Foultei't to engage a
scrutineer for the [)olling day, had constituted him an
agent for all pui-poses, hut simply as an agent for that
])articular [)urpose ; liutas it was the practice of the Court
to take the admissions (jf counsel in proof of agency, ho
felt warranted in taking the admission now made hy the
respondent's coun.sel. Foul)ert lieing guilty of the cori'upt
practice of keeping liis house open on polling day was
sutHcient to void the election.
'Hie practice on former occasions was to manage the
elections through the agency of third per,sons, and many
inst.Teiees were on record of v<'ry corrupt practices hy
::;'.,. It was to meet tliis end tliat the law was matle
■ .iringent as it is, hecause it was manifest that unless
t candidates them.selves weiv held responsilde for the
.■'.L-ts of th.eir agents, tliere would l>e \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
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>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<l not foiced itself upon liis att-ntion, aiul it
was one which prevaileil in all parts of tlie country alike.
He thoUL![ht the personal charges had heeii explaiiieil,
and to his mind satisfaetitiily e\|)lained, in an in,nenuou>
and honest mannei-. Mr. Kcir had sai<l very properly
that they could not he pressed upon him after the evidenc*
of the I'esjtondent. He <-oul<l not have found in the face of
the denial that these )»eis(»nal ehaiu'es were estahlished.
He did not say that the denial oi the respondent alone
would have relie\t'd the t'oui't fiom the necessity of
ndjudicatinL; on the pergonal (■har;;,-es, hut at least as nnicli
Weight was due to the resj)ondent's evidence of the denial
of tlu' chai'u'es as to the e\ idence j'.^ainst him, and it wa>
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<tt heen
adduced. Tlu'i-efore. it oidy remit" to ceitify to the
Speaker that the election was \ ..
theV W()ld<l follow the eNCnt.
h rejfui'd to costs,
Witli his certificate ti» the S
trial, the learned .lud^e i(|)or
was proved to have heen ^'uilty
said election.
,' result of till'
' chael Fouhert
'jractict' at tlie
(!> 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 (;<i(»|»At.l. SXETZINdEH. Prtitliiiin\ V. Ai.EXANDEH
Fhaseh iM( Intyhe, Ris})i>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'<l tin- usual cliai'uvs of corrupt
piactict's.
}lr. It. A. /{(/rri.-iiiii, Q.C., J\fr. JK 11 .Viic/riiuini, uml Mr.
('/lisjln,')il, foi' pt'titiolUT.
Mr. J. K. Kirr, a ad thr Iii'.<po)idi:nf in 2h'r--i<in, fo)'
rt'spnnilcut.
Till' cviilence gi\'en at the trial was as follows :
Miclnnl Luo : I am an elector of the district, ami \'oted
at the late election. I was askeil to v(jte foi- Mclntyre
hv Roliei't Coni-ov the eveniui; hefoi'e the pollino' day.
That was the tii'sttinie he .saw nie about my vote. There
was anothei' man present at the time. He saw me in my
own house. I helieve Dr. Allen occupies the position of
Police Maoistrate, and I know him. I had heen fined
several times by him. I paid my tines before the election.
I did not like it at all. I paid upwai'ds of SI 00 iu tines,
and I suppose it was well known. Conroy and I talked
1)1' it that night. I was in bed when he came, and not
t'eoling well. I told my son to get up and see M'ho was
there. I was called to come down-.stairs, and saw Coni'oy
and another num talking to my son. Conroy pro<luced a
bottle of whiskey. I refased to drink that night, though
they told me to take hold and drink some. They urire<l
204
rUoVINCIAL KLKrnoN'S.
[A.I..
>; i
p^
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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<l night and went oti'. I am some-
times too fond of whiskey. Conroy is a hotel-ke('|)ei' in
this t(»wn. 1 was tined for drinking whiskey. He ilid
not say wliether he had money to pay my tines. I <lid
not leave town, nor did I see him before I voted. That
was the only time he was with me.
Cross-c.iuiiiiiicil : No money was paid to me hy Conroy
or hy any one else. I took it that Conroy promised to
retui'n me souie of the tines on condition of my leaving
town. I <lo not belong to any particidar place. 1 lived
aliout twenty years in the States. I have lived liere since
March a year ago, and have since tliat time been tinecl to
tile extent of upwards of iii^lOO. I liave been di'unk
without boing tined. I take it whenever I can get it
handily.
^fr. Kirr a<hnitted that Conroy was a\ agent of the
respondent, ami stated that he con.sidered this evichMicc
sutHeient to void tlie election, and that tlie respondent
would agree to have the election declared void.
Mr. Harrison agreed to this.
Si'KAcJOE, C. — The election will l»e declared void on
account of corrupt practices by an agent, but not by the
candidate, nor by any one with his knowledge and con-
iH7r>.]
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\»'<l toliave hfeii y;uilty<»t' foiiuiit iiracticfs iit the . aiil
(.•krti»»M.
({) Journnl Lii/is. ^Jn.m///., |s7.'»-<!, [k (i.;
DUN DAS.
Hkkoke Chancki.i.ou Si'1!a< ;(!!•:.
MnliKlsiifltii, l.ifh, I'lth ami liJli ./inn, IS'.'i.
S|\|(»N S. Cook, iiiiliomr, v. AnDUKW BhoDKU. Jiojmni/rnf.
Miit'iiiil <)/ l'Jlrrfi)i'/< — Tri'iitlnij uf — /iril»ri/ — Er'nl'iirf of an-niiil otfir —
Trrtttiiiij on Ni>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 <lid not treat durini;' tlio
canvass. We liad a meeting in the An'ricultural Hall
calh.'d liy hand hill; 1 made a speech. After the meetinii;
I went to Dixon's, and I'emained there an houi'. I don't
recollect seeing (Jenesee Empey at Dixon's hotel. 1 did
not treat then. I went from Dixon's to Powell's. The
l»ar-room was Hlle<l ; pei-haps 10 or lo were there. I spoke
to Powell, who was a friend oi" mine, and then I made the
remark: " Boys, will you have somethinj.^ r" or, " Hadn't
you l)etter take something;?" This was in the har-room. I
was nearly as far fiom the har as I could '^et. The r(jom
was .small. After I said this there was nothing set up.
Gene.see Empej' sp(jke to me, and asked me if the law
allowed me to ti'eat — somethine- to that eti'ect. 1 said, 1
think, that I did not believe the laAV hindered it. He .said,
" I'll do it," and I handed Genesee Empej' there and then
the money to pay for it. I handetl him the money in the
bar, opposite the door of the sitting-room. I did not
attempt to conceal my giving him the money. I gave
him a !?+ bill; he gave me back the change afterwards; 81
was spent. I think Genesee Empey was a supporter ot
mine. He did not accompany me there ; I came with
Mr. Armstrong. This is the only time 1 treated during
the election.
IM.VJ
1)1 N DAS.
207
JiJiii Siijfi/: I live in MouiUaiti, iiml am a tarinrr. I was
at "lie tiiiic a cri'<litt)i- of Amlicw lii-oilcr: it was for six
talis of liuttcr. It was lictwrcn i<7.') ami SlOO. I sinn,.,!
the composition <lr('(| for .')() cents in the f^\. 'I'liis was in
|n7-{. I ^'ot part in cash ami part l»y note; the note was
paiil in iNT-i. I sijfm'd the composition dct'tl in May, I.S7'{.
I irct'ivi'fl i^lO from A. Hrodt'i" some time in Dfct-mlifr, a
short time Itefore Christmas. He paid it to me vohnitarily
in his own store ; he saiti he was ^oin;,' to pay every man
in full, dollar for dollar. He took a memoran<linn of it.
He took me Indiind the counter, and said he wanted to
Lfive me a little on the old score. He was talking- aliont
holdin;;' meetin;i;s in Williamsitur;^^ at this time. He diil
not ask me to support him. I had not always voted on
that side. I had supporti'd Cook in the election of .Inly,
iNtiy, and that of I.STI as well. I diil not tell Broder that
1 was n'oiniLito support him ; I ne\'er mentioncl it to him.
We luul not oeen talkinu; of the ]tayment in full. I am
John Suti'el the vounij'er. He owed mv fathei- somethinLi"
ami paid liim ; so my father says, Itut 1 do not know this
of my own knowledge. The half of my deht was S'i') or
8.')() ; there would he ^'H) due me still after the 810. This
was liefore Christmas. He spoke to me yestei'da}', ami
said he was not ijoini;' to deny it. I voti'd for FSnjder.
The respondent was also examinetl on this charn'e, and
nave explanation.s of the payment to Suttel and others as
set out in the judement, ami ad<leil : "These })ayments
weio made on the understandinu' that 1 was to i)av niv Ha-
hilities and settle in full. These weiv all amounts heyond
the composition."
Abraham Bock us : I li\'e in Morrishui'ii,', and am a joiner
hy trade. I am a voter. Previou.s to the election 1 had a
conversation with J)r. Hickev
J '
my
l)rother-in-law, .NHIan
Daley, was in the house at the time. Hicki'V asked me if
1 had promised my vote to any one; 1 .said, No. He then
spoke favoral)ly of Mr. Andrew Broder, and asked me if
1 would support him, saying that if 1 did they would give
208
PU(n'IXCIAL ELECTIONS.
[A.D.
"'**l
lilt; a n'ood smmncr's work. Ho did not say wliere the
Work \v(jul<l 1)L'. The conversation was out of doors.
Clt.arli'!< E. Hkhi'ii, M.D. : I ain a medical practitioner
here. (His agency was adniitte^l liy Mr. Boultl)ee for the
ns[)ondent). I know Bockus; I canva.ssed him for Erode r
a few days Itefore the ek'ction ; I a.sked him how he was
y,<jing to vote, and said that 1 wouM take it as a favor if
lie would vote for Bi'oder. Ke took exception to Cook's
course in Parliament, and 1 took advantage of this, and
iiiged him as strongly as I could. He said he did not know
A. Broder, and J told him he was to he here shoi'tlv and
he coul<l hear him. He gave me to understand that if he
wa.s engaged at work on that day he wcjuld not vote. He
had been working for me on a job at one of the houses
Itelonging to the Rose estate , hut neither he nor I re-
ferred to this. I swear that not one word of any kind
Avas said about the faturcj work ; he or some one for hiin
must have invented the story.
Alv.randcr Farlbif]!:!' : T am a member of the Consei'-
vative Association of Dinidas, and President of the
]\lorrisl)uig Branch. I treated on nomination day after
standing a couple of hours, feeling very cold and tired.
George Casselman asked me to go. Some one was then
speaking. We went to the bar-room, which was full ; it
was as far as across the street from the nomination place ;
about 40 or 50 feet separate«l. I was asked by Casselman
to go and get something to drink. Some one said: "This
is Farlinger, who ought to be Reeve, and this ought to l»i'
his tivat." I did not drink, because all the good whiskey
was drunk befoi'e 1 got a chance. I think I paid l)etweeu
seven ov eight dollars for the treat. I don't know tli '
landloj'd by name. He probably counted the drinks. I
paid him just what he asked. Speaking was still going
on when 1 got out. The Returning Otticer had gone be-
fore 1 went to the hotel, and I don't think he returned.
The evidence as to agency showed that the witness
attended meetings at William Broder's (who was respond-
ls7o.]
DUNDAS.
209
tilt's election agent) to promote the election, and is sutti-
cicntly set out in t^*' judgment.
Upon the opening of the Court on the next morning.
tlu' following judgment svas given :
Si'HAGGE, C — The first point in Mi'. Bethune's argu-
iiimt was the treating at Dixon's Coj-ners. This treat,
n'tliough not direct l)y respondent, l>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' :
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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 lia<l 1>een. 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<l to
void the election.
The learned Judj;v certified to the Speaker that the
election was void, an<l reported that no person was pro\'ed
til have been e-uilty of coriupt practices.
(9 Journal Dijis. Asstm., liS7''-(i, \>. 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<i nwea'' that he had not paid and will not
pay eleetion expenses except through tm agent, and that he " hats not
lieen guilty of any other corrni)t practice in resjiect rif the .said election. "
vVitain payments were made by the respomleiit per.sonally, anil not
through an eleetion agent.
//'/'/, that siicli payments were not corrupt practices.
//'/'/, that the words " other coi'rupt [(racticv> 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
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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, an<l made it a corrupt
act. He i-eferred to the Cas/ir/ rasr (1 CM. c<r H. 2.S.S)
and the Fcnri/u c/tsc {J hid. I'M ).
Ml'. Wallhrid(jr, for the respondent, contended that no
man could l»e found gvailty of a corrupt act unless the
statute expressly declared that the doinu' of a certain
act should he coiTupt, and the statute had not so declaied.
As to the payment to the son, the money had not been
paid, and tlu; money therefoi'e remained the pi'o])eity of
the fathei' in tlie hands of the son, and was unappropriatccl.
The other payment was Ijefon- the nomination of the
respondent as a candidate.
Sphagge, C, sai<l tliat the technical points raised l>y
the petitioner narrowed themselves into two cases: rtrst,
that a hall ha<l lieen liired by tlie respondent previous to
the nomination, which had been used by him, and that
he had paid for it without making the payment through
an expense agent ; and secon<lly, that the respondent ha<l
given some 8+ to his son, a lad under age, in order to take
him to an adjoining village on bu.siness connected with
the election subsecpient to the nomination. The son, it
appeared from the evidence, had not appropriated the
money to that object, and the agent of the respondent hnil
sul)se(piently ])aid tor the horse hire in the manner re-
quired b}'^ the Act. There was an entiri' ab.sence of meiit
in these objections; they wei-e technical in the strictest
sense of the term, and should, considering the circum-
stances, be met liy the most technical criticism of the Act
itself. The (piestion to be considered was : Do these acts
constitute a corrupt practice ( A definition of coirujjt
pi'actices had l-een given in the Controverted Elections
Act of l<S7l,sec. '}. This had ])een repealed V)y the -SO
Vic, c 2, and undei- the last mentioned Act, coirupt
practices were defined as meaning " bribeiy," "treating,"
etc.; under s. 4(), " personation: ' under .s. Gl, "providing
l.s7o.]
WEST FlASTINfJS.
213
cntiTtainiiiont;" undei' s. ()4, "hirini;' of teams;" and under
s. (!(i. " keepin;,' open of public houses and givin<;' of liijuor
(lining polling lioui-s." The aj'gunieiit tliat the nieniher's
oath juvscrihed hy -SS Vic.,c. 8,s. (I, re(iuiring tlie successful
ciindidate.heforc taking his seat, to swear tliat lie had not
made and would not make any payment in respect of the
election, because it rerjuiied that lie should also swear that
lie hail not heeii guilty of "any other coi-mpt [iractice in
respect of the said election," made the ])aynients mentioned
corrujit practices undei'tho statute, could not be sustained.
He thouifht that the oatli should read " anA'," and that
the woi'(l "other" had ere] )t into the Act through inad-
vertence. As to the last item not lieing in <-,he statement
of expen.ses, he did not consider that the Cmhd case (1
M. titf H. 2<S<"S) was an authority on this point. There
the agent had not been notified of his appointment, nor
was he aware of it until after the election. The candidate
had himself paid by cheque all tlie expenses of the elec-
tion, and some of the sums given by him having Ikh'ii
ajipropriate*! to corrupt pui-poses, the respondent was,
under the decision of Barc^n Fit/gerald, made to suffer the
conse(|Uences. He did not considei' the ol»jections were
sustained, and he woidd overrule them. As to the election
itself, there had been an entire failure of proof to sustain
tile charges of corrupt practices; and this election, and
another which he had tried, would teach jioliticians that
notwithstanding the stringency of the la 7, it is possible
to have elections so pure and honest that they will stan<l
the test of the strictest iiKiuiiy. The ]K'titioner having
so entirely failed, must bear the conseipience in the matter
of costs.
('.^ JounuiJ Ler/is. A.sxnn., l!s7.')-<), ]). 21.)
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214
FUOVIXCIAL ELECTIONS.
LONDON.
[a.d.
Be?X)RE ChAN'CELLOH Sl>HAf;fiE.
London, ..'/■•</ to Mnl. ./mir, /.s;,/.
William Jahmax, Petitioner, v. William H. Mehedith.
Iii\s/)aiidntt.
C'anilidatc tratfui;/ iliirin;/ caiii'iifi.i irillioid corru/i/ liili iil~ -Trratimj in u
liririiti- /loiisc iliiriiiij pDlliiuj liunrs — Utairiti/ not Jirilieri/ — Liniiti-d
UIJCIIVIJ.
The treating of persons V)y ii candidate at a tavern during Ids canvass is
not a treating of electors witii corrupt motives.
Wliere a nieinLer of the respondent's conimittec, on the (hiy of election,
invited some of his friends to his liouse, which was opposite thr
polling hootli, and gave them Ijeer, &c., during or soon after polling
hours :
llchl not a contravention of W'l Vic , c. "Jl, s. (id.
Wher., half a cord of wood was given to a voter in poor circumstances
during the elcctidu, and the giver swore that it was given out or
charity ; and
W^here a voter was hailed out of jail on the day of polling hy a friend, lait
according to the evidence witliout reference to the election :
lltUI not acts of l)ril)ery.
Wherea political organization, after nuniinating their candidate, divided
into conunittees " to look aftcsi' voters in the particular wards in which
they resided ;"" and the respondent had not gi\en authority to any
memher of such coiiiniittees, ncn' to any canvasser, to canvass gener-
ally :
Ill-Ill, that one K., wIkp was a member of the Committee for ^^'ard Xd. -.
and who was alleged to have committed an act of bribery in Ward
No. <), having no autliority to canvass in the latter ward, was an agent
with limited autliority to canvass in Ward X(). "2 only and therefore
tlie respondent could not l)e made liable for iiis alleged acts.
K., the agent referred to, while canvassing a voter in Ward No. l), gavi'
him money to get beer, for which the voter paiil a lesser sum, anil a>
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 respon<lent.
V I'
" ^ ' 'igiiieiit sutiieiently states the facts att'ectiiig tlic
ca.ie.. t,: .posed of, except the following case, whicli wa.-
mainly relied upon by the petitioner.
Sarah Woolston : J remember the Meredith-Duraml
election. My husband is Walter Woolston; he is a carpen-
B;i .r*;:*
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LONDON.
21.')
h-v l)v trtulo. Hf waspanvassod on the Satur<lav evenino;
lirtori' tlK' polling'. I don't know the yon tic man's name
who !isk('(l my hushnmrs vote. 1 wa,s standing at the door
wlifM lie was passing, and he asked me if my luisltand was
ocjing to vote ; he .said he wonld make it all right with me
if I w.onld get my hushand to support Mr. Meredith. I
Miid I would do all in my power. He returne<l a couple of
times that evening, pretty late ; when he eame tlie second
time I had not then seen my hushand. He went in and ^
talked to my hushand ; I also went in and told my hus-
huiid to give Mr. Meredith his vote, as he had always l)een
oil that side. He said he had not detei-mined how h(!
would vote. The canva.sser told me to .send my hushand
to his house on ^loiuUiy morning, and my hushand went
there ; T saw the two together. There was an ofier of
money to me •)y this gentleman. He took some money
(»ut of his trousers' pocket, and sai<l he would make it all
light if I would get my husliand to vote right. I got no
money e.xcept some to pay for some heer ; he gave me a
.")0c. piece. I got a (juart of l)eer; it cost ten cents.
He asked my hushand if he would not like a glass of beer.
My hushand took the money and returned with the beer.
He told my husband to put the change in liis pocket, and
lie did so. He afterward.^ gave my husband 2.") cents to
get another (piart ; this was a couple of hours afterwards.
He told him* to put the change over in his pocket. The
gentleman never " made it all right with me " after. 1
told iiiv husliand that this o-entleman would make it all
right with me.
fjfnss-cmminrd : No sum was named ; nothing was pro-
mised detiniteh". I never got anything ; nothing was
ever asked for.
Rf-exrauinrd : The 2)er,son .said he "would make it all
right," and he held the money out in his lian<l.
Walter Wuohton : I am the liusband of the last witness.
I was not canvassed for Mr. Meredith, except that I was
asked l)v one gentleman to vote for him, either on the
Friday or Saturday, in the evening. The person who
216
I'HOVINCIAL KI.FXTKiNS.
[a.d.
ask'cfl iiif is n cjili-di-ivcr ; Robcit KciLjlitlcy is liis name:
he livc'<l near wlicri! I tlu'ti i«'si<lf'(I : lie came to my house
and asked me ; we were then in the room oti' tli,- shop-
Wlien lie first asked me I told liim I lunl not determine 1
how I would <^i). He ott'ert'd no in(hK'em('nt to me. Ilr
came several times in the nij^ht. Tlie tirst time he came
was after supper. I had Iteen at a meeting ; lie remained
there (j\iite a wliile. We had some heer ; I got it, hut lie,
lu'iglitley, funii.slied the money, a "»0c. i)iece. He told me
to get tlie heel', and I got a (juart, for which I paid ten or
fifteen cents ; we drank it hetweenus. We were talking
al>out 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 <lid not see him ott'ei- mv
wife money. She told me if slie were me she would vote
for Mr. Meredith. On Mon<lav I went to Keightlev's
hou.se, in the morning— the polling day. He said he sup-
posed I would vote all right; nothing further. We went
to the polling-place. We drove there in a cab ; there were
three others in the hack, but they were strangei's to me :
I imagine they were electors. I went into the polling
booth and voted. I remained about the polling place for
some time and then went home. I have since received no
consideration for my vote. I have seen Keightley, and
think I reminded him of the promise made. We talked
of the election, and I told him he had said to my wife he
IfsT.').]
I,(»NI)()N.
21'
wduM iiiaUc it all I'iglit. He said tlioiv was a piotcst
clltflcij now.
Cross-r.iiiiiiiiiit/ : This ^^entlcinan iicvri' held out any
iii(luci'iiit.'nt to im\ and I nevci- saw liini talkiiii;' to my
w ii'r, and did not sit him puttinj.,' liis hand in his pockt't.
1 rriiicndicr his leaving tlu' liousr the last time. 1 liavo
III) it'colU'C'tion of sci'inu; him pnt his liand in his pocket :
all the moni'V I ,!j;"ot was wliat he ;^avt' me for the licci'.
Rohni Ki'KjhiJrii : I n nicmlicr the Meredith -l)\ii'and
(lection : I took part in it. I was on the conniiittee for
Wai'il No. '1. I attended some of the meetinj>;s. I asked
sDiiie voters to vote for Mi' Mere<lith. I may liave re-
j)orte<l some of tliem to tlic committee. I took soine
voters to the poll on election day; \ also took Mr. Wool-
ston. r had aske<l liim to vote for Mr. Meredith some few
nij^dits ln.'foi'e. I canva.s,se<l him in his own place. T saw
his wife sind told her what 1 wanted ; I asked her to try
an<l ;,'et her husband to vote for Mr. Mei-eilith ; she .said
she would. I did not say I would nuike it all rit;ht; I
deny emphatically that I held out any induceiiu-nt directly
1)1' indirectly. We had .somethinj.-; to di'ink ; 1 thiid-c it
was beer. I proposed we should have it, and i-'ave the
iiiont'V, .")() cents, to yet it; the luisliand and 1 drank it,
I taking' hut little ; his wil'e may have taken .some. 1 do
not recollect l)eer being got a .secon<l time that night; my
impression is there was none. We were talking con-
siderable aV)()ut the election. My object in going there
was to get his vote. When I sent for the beer my object
was to talk matter.^ over pleasantly al)out the election. I
V(jted in division four in No. 2 Ward, and canva.ssed
there principally. He voted in No. (i Wai'd. A canvasser
told me he did not know where Woolston live<l, and tlift
led me to go there. I mav have canvassed in No. '•\, but
I cannot recollect. I canva.ssed wherever I saw people.
Cross-examined: Woolston's vote was in No. (J Wai-d,
hut he lived in No. 2 Ward, having moved there before.
His name was not on my book for canvassing, I got no
change for the 50 cents; they were pleading such jK>verty,
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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<l, ami on the next <lay the following- judi^nnent
was delivered :
Si'HAfUJK, C, said: The petitionei-'s case was yestc^rday
rested hy Mr. Kei'i- on the Mill's case, Pritchard's case,
the ti'eating at the Revert> Houst;, and tlie Woolstoiv case,
Tlu! charg(! of treatiiiL;' at tlie Revere House against
the I'espondent himself lia<l, in his opinion, no foundation ;
it was not ti'eating of the electors, nor was it treating
witli cori'upt motives.
As to Mr. McCorniick's case: McCorniick was a sup-
poi'ter of the )'espon<lent, and on his conniiittee. His
dwelling- house was opposite one of the polling places,
and at a late hour of polling (after the polling liad heeii
fini.shed, the witiu'ss .said), he asked two or three or four
of his friends to go ovei- to his h.ouse. On the table wjin
•some 1)eer, and also ehlerlierrj' wine and cakes, which
the parties partook of. It was contended that this was a
controvention of section (Hi of the Act. He did not think
that it was so; and believed that the fact that the witness
stated, that a number of Mi-. Duiand's friends were
amongst those whom he inv'ited, was a proof that mi
corrupt influences were intended. He decided tliat no
coi-rupt pi'actices had been proven in this case.
The next case was what was known as the Pinkhani
case. In it there had lieen considerable conflict of evi-
dence ; l)ut he thought he could take Brown's account
of what took place as the one most likely to be correct.
Brown, who was an alderman, was charged with bribery.
There was the evidence of Pinkham and Trainham for
the respondent in adilition to that of Brown. Now the
note he had made of this was, that Trainham was an
active man, and was acting on behalf of Durand. The
witness Brown was an active supporter of Mereditli,
and appearetl to be a truthful man. It appeared that
INT.V]
LONDON.
21!)
I'iiikliiiiii lifid nlwnys siinportcfl rcsponilcnt, ainl tins was
jdovcil without any doulit. He liml lc<»iii' to votf, Uut
licsitatcil, as he said, Itt'causc AlilcnnaM Hiown had
proiiiisi'd to ^^ivt! him halt' a cord of wood if hf voted foi-
till- other side. This ai)i)eured to lie the only olistaele,
and it" what Trainhain had deposed to were true, then it
wiiuM hi' a ch;ar case of hriliery. Hut a ditfeieiit version
is ;;,MVen to the story hy Brown, who says, that when
Pinkliaiii stattid his dithculty, he sai<l, "(Jo in and vote
like a man: and if v«>u are i-eallv in want, the eitv will
relieve vou. If you are really in want, 1 will <iive you
sufHcieiit to keep you from starviiiLj." Now, it had
heen proved that Piid'cham was in had circumstances;
he had gt>t wood fi'om the city Ijefiji'e ; and it had also
liceM proved that Bi'own had relieve<l him Itefore, and
was in the hahit of relievin<; others. Trainluim's mode
(jf i;etting infornuition was not to l)e commended ; and
he ohtaineil what information lie <lid yet at a disadvan-
taij;e. Ml'. Justice OBriun in the Vuorjkal rasr (1 O'M. &
II. 2!)4), lield that wlu'i-t; it had been proven that money
was given in charity, it could not he i-egai'ded as lirihery,
and this appeared to he one of a similai' nature. Biown
having stated on his oath, and he had no reason to dis-
believe him, that he gave this wood to Piid<liam out of
charity, he theref(;re decided that no lirihery hail taken
place.
With reference to the case of Mills, who was hailed out
of jail hy Woods, it appeared that the witness, Mills, was
a particulai- friend of Woods; and the lattei-, on his oath,
liad stated that he did not Itelong to Meredith's coni-
iiiittoe, and did not even know that Mills luul a vote,
lie preferred to regard the case in that light, and that
Woods bailed Mills out as a friend, and not with the
view of getting him to vote for the respondent.
But tlie ca.se on which Mr. Kerr mainly relied was that
known by the name of tlie Woolston case. As to that,
there were two questions of fact : The first is the (ques-
tion of agency. When that question was brought hefoie
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I'lUiVlNClAL KLKCTIMNS.
[A.r,.
liiin liy Mr. Kfir, he luul cxiticssrd his opinion on it, iiiiil
he luul not any reason to alter tluit opinion. As to the
contention ol' Mr. Keir, that all the n'"inliei's of the liihrriil-
Oon.scrvative A.s.soeiation nvcic agents of Mr. Meretlith, lie
was not prepared to aeeeile to this; it rested mainly on
that association l»rinL;in;4 out Mr. Meicdith. He was the
]i,'eJitlenian of their nomination, or, as it had lieeii sajij
in evidence, "the standard -hearer of the party." That
party di'clded to \n-'uv^ him out at a ;,'eneral mi-etinif— a
mass meetin;;' — which was called, and Mi-. Meredith nv-
cepte(l the nomination. At that mectint; tliose picscnt
iiroUe u)) into knots, thc^ different sections choosiiin' the
representative for the wards in which they were voteis.
As soon as that was done the functions of the (Joii-
sei'vative Association wei-c at an end, and a new airan^c-
uwnt entered ui)on. He thought they mii^ht as well say
that if a re(|uisition to a man to hecome a candidate was
signed hy 100 or 200 electors, the act of signini;- it
co!istituted them his agents, as that the C'onservativc
A.ssociation were so because they brought out Mr. Merc-
ilith. It was clearly ex))lained to the connnittees then
formed to ])romote the I'espondent's election, that tliry
were to lo(;k after voters in the particular wards inwliicli
they reside(l; they had no I'ight to canvass in any other
ward. The principle of agency might have heen estah-
lished if authority from Mr. Meredith had heen given to
any canvasser to canvass generally; then he woidd hiive
heen canvassing under Mr. Mei'uilith';i .sanction, and the
i-espondent would have to be responsible f(^i' the acts of
such canvasser. This authority does not appear to have
been granted in this i)articular case. The person cliarged
with having bribed Woolston is a man named Keightley,
who lived in No. 2 Ward, whilst the person Woolston
livx'd in No. (5 Ward. The conunittee for the wai'd in which
Woolston lived dealt with that man, and the respondent
could not be made responsible for Keightley 's act,. seeing he
had no authoi-ity from the respondent to canvass out of the
ward in which he was appointed. It had heen maintained
IN?.).]
LONDON.
221
that u liiink liml Imcm >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 an<l
hrihcry, he said it had been much iieedeil in the land, and
[last experience .sliowed it had l>een 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 ha<l
>ho\vn that he had not been returned corruptly. He was
tniLs enabled to form a very diti'erent opinion of the city
'*<!
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222
PUOVrXCIAL ELECTIONS.
[A.D.
ii
of Loudon from that stated by his brother Hagarty at
the last trial. The present inquiry had shown him tliat
there could he an election conducted on lionest and piuv
principles.
The ])articulai's contained charges of bribery and cor-
ruption against the respondent and a lai'ge number of his
supportei's which there was not a tittle of evidence to
prove. There may be an excuse for this partly from the
fact that such charges had been made at a foi'mer election^
and pfxrtly because there are charges in vlie particulars
which those that got them up only expected to prove.
This course M'as not justifiable, becau.se the particulars
could be amended at any time bc>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<lidate and ids
agents were guilty of corru))t practices, and particular;^ of all such
votes and ballots and corrupt practices were asked fnnn the petitioner.
I hill, 1. As to the illegal votes, that theTth (reneral Rule prescribed the
pir.ticulars of objected votes to be given, and the time of tiling and
delivering the same, and a special order was not therefore necessjiry.
'2. As to the improperly marked ballots and improperly rejected ballots,
the petitioner not having information respecting them, could not ha
ordered to deliver particulars of the same.
.'{. Particulars were ordered of the names, address, al)ode and addition
of persons having good votes, whose votes were inipropei'ly rejected
;it tlie polls ; anil particulars of the corrupt practices charged by
the petitioner against the I'espondent and his agents,
/;-'// V. Smith, L. R. 4 L.V. 14.") ( ]\'e.'<l minuter m.^e), followed.
Tilt' petition in this case contfiine<l the usiuil charges
of ciii'i'upt practices; an<l alli'ged that iUegal votes and
iiii[)roperly iiiai'ke<l hallots luul l)een received and counted
in t'iivor of tlie respondent; and that good votes and
[•roperly marked l)allots in favor <^f his opponent had
Keen rejected; and claimed the seat for the unsuccessful
candidate.
After the petition was at issue, a summnns was taken
nut liy tlie respondent, callino- t'or the particulars of the
alleLfations in the petition. The suuuuons a.sked for
particulars (1) of ti.c pei'sons riOt (pialitied to v(jte who
had voted for the respondent, and the grouiuls of their dis-
i|iialitication; (2) of the votes tendered for Ids opponent
and rejected ; (8) of the counterfoils and hallots for his
opponent which had been impropcily rejected; (4) of the
counterfoils and ballots impropei-ly received and counte<l
I
224
PROVINCIAL ELECTION'S.
[A.D.
for the r(ispon(lt'ut ; and (.5) of the corrupt practices cliargod
a.L,faiiist tlie i-espondent ami his agents in the petition.
Mr. HoihjhiH, Q. C, for the petitioner, showed cause, and
had no ohjection to the usual or<ler as to cori'upt practices:
but he contended tliat as tlie 7th Gener-al Rule in Election
Cases (81 Q.B. 227) provided for the delivery of particulais
of objected votes, no special order was necessary. As to
particulars respecting the ])allots and counterfoils, thi'
petitioner could not give the information asked, as all the
l)allot.s and counterfoils were in the custody of the officers
of the House, sealed up ; and the cases of Sfoivc v. Jn/lil'r.
L. R. C. R 446, and iMomrtnn/ v. Corn/, 21 W. R.
627, showed that the ballots in these election cases could
only be inspected under a special order.
il/r. J. B. Read, co/ifra, contended that it was tlic
petitionei-'s <luty to obtain an inspection of the ballots.
and to furnish the information ask(,'d for; and if he ihd
not do so, that he should 1»e precluded from relief on that
branch of the case.
H
1
1' •
Draper, C. J. A. — 1 have in this ca.se to dispo.se of a
sununons which asks for a variety of particulars; an<l in
order to dispose of the application, I .shall take the sub-
jects in the or ler in whicli the}' are raised in the petition ami
summons, premising that the petitioner (John Cascadrii)
.seeks to avoid the election and I'etiirn of Malcolm (!.
Muuroe, and to have it declared that the un.successful
candidate (Thomas Hodgnis) was duly elected, and ouglit
to have hvcn retui-ned.
1. The case is therefore clearly within tlie 7th Genera!
Rule, which pi-o\-ides that the party complaining of, and
the party defemling, the election and the return, shall
within a given tinv deliver to the Clerk of the Crown,
and also at the addi-t^ss (if any) given by the petitiimer
and the respondent (as the case may be), a list of the
votes intended to be objected to, and of the heads of
the ol)jection to each such vote. I see no rea.son for a
i
pil
IS?.').]
WEST KI.(iIX,
22.")
special onler in this case, oi- for varyiiii;" from the tonus
of this Rule. So far I disehai'ijie the smninons.
2. Particulars are asked for as to parties alleged in the
petition to have had good votes, who intended to vote for
the unsuccessful can(hdate, whose votes were tendered
and inspioperly rejected. I think the respon(h'nt is en-
titled to their names, address, abode and addition, and 1
ordei' accordingly.
'■] \' 4. Full particulars are asked of the nundter on the
counterfoil of tliose hallots, marked, or so marked as t<)
indicate votes, for the said Thomas Hodgins, impioperly
rejected, and not counted foi- him at the said election;
anil the nundter on the counterfoil of those hallots which
were void, and sliould liave heen rejected hy reason of
their wanting the signature or initials of the Deputy
Returning OlHcer, and the name of such leturning otKcer;
and of the lunnlter on the counterfoil of those parties
voting for more candiilates tha)i one, and as having a
wiitiug or nuirk hy which thi' voters could he identified,
and as unnuirked oi- void umler the provisions of the
Hallot Act, ami specific reasons for those otherwise void,
and the names, addi'ess, ahode and ad(htion of the ])ai'ties
using such hallots, and which hallots wei'e impropei'ly
accepted and counted for the said Malcolm (J. Munroe, as
I lentioned in the fourth clause of tlie petition.
1 .nn hound to a,ssume that the Returning Officer has
ilnne ins duty, and therefore has, under the 10th section
of the Ballot Act retui'ueil to the Clerk of th > ( 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<l hy Mr. Hodgins, would have
prohahly [n-evented this part of this sunnnons, which
part I also disduirge.
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220
I'HOVINCIAL ELECTIONS.
[a.d.
5. It is t'urtlK'ra.skt'<l tliat an onk'i- should issue for full
particulars of {a) corrupt practices charged, (/y) of ln-ilterv,
(6') of treating, and (d) of the nature of the undue influence,
and of the parties practisnig the same, all which are re-
ferred to in the tenth clause of the petition; and of the
names, ahode and aihlition of parties who hefoi'e, at, and
(hu'ing the electioii oflered to corrupt and hiibe, or mvc
or procure advantage to electors to induce them to vote
for respondent, or to refrain from voting for the un-
successful candidate ; and the names, &c., of the persons
sought to he corrupted, and the specific nature of such
corruption, l)ribery an<l a<lvantage, i-eferred to in the
seventh paragraph of the petition.
There was a very similai' ap[)lication in the cast; of
Ileal V. Sniit/i, L. R. 4 C.P., 14."), in which Willes, J., after
consultation with Mai'tin, B., and Blackburn, J., ordeinl
that the petitioners should, thiee days before the ilay
a[)pointe<l for trial, leave with the Master, and also givr
the respondent and his agent, particulars in writing nf
al' ^jersons alleged to have been treate<l, and of all pel-
sons allege<l to have been unduly influenced; and that
no evidence should be given by the petitioners of any
objection not specified in such particulars, except hy
leave of a Judge, upon such terms (if any) as to amend-
ment, postponement, and payment of costs as might h,'
oi'dered. That order was afhrmed, on application to the
Court of (Jonunon Pleas for the fuller particulars which
Willes, J., had I'efused to order. 1 shall nuike a similar
order on this branch of the summons, except that 1
shall, following the usual practice here, inake the tiiiif
foui'teen days instead of three, and will in the same man-
ner dispose of the application as to the nuxtters chargrd
in the jiaragraphs of the petition referred to.
IsTo.i
WEST KLCIN'.
WEST ELGIN.
227
Bepy)re CuAXCELr.oH Spiiagoe.
St. TuiiMAS, -;.'fth Jaiii^ IS7.'>.
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(-<ncri'Ksfid diinlhlntf
(it I'li'ction —Ci'rtijiral'- f/i'-fon to S/yah'i:
Wlu're a petition iliiinis the seat for tlie uiisuecessf"! camliilate, a
scrutiny of votes may l)e ordui-ed to l)e taken in each municipality by
tiie Registrar acting for tlie .fudge on the rotti.
'Hie day appointed for the trial of an election petition may lie altered to
an earlier day by cons^ent of tlic parties, and liy an order of the .Judge.
Iduingthe scrutiny of votes tlie respondent abandonee! tiie seat to his
ii]i]ionent. after ins opponent had secured a majority of 8 votes, and
agreed tiuit sucli siionld stand as liis opponent's majority, and that the
Court shoidd declare such opponent duly elected; and the same was
(irdeied by the Court.
Tlu- petition was as statt'd on p. 22.S.
Till' vote at tlie L'lt'ctioii was: for the respondent, 1,101 ;
for Thomas Hodg'ins. l,()!)l ; majority tor respondent, 10.
A scrutiny of votes haviiv^f heen apphed for on hehalf
of tlie petitioner, the Chancellor, heiny the Judo-e on
the I'ohi for the trial of this election petition, inack' an
order on the 2l8t May, 1>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 t<j his opponent, tlie latter
havin^f .secured on the scrutiny a niajorit}' of S votes.
Tlio trial liad been appointed to take place at St. Thomas
on the 28th June, 1875, but on a con.sent .signed by both
IG
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PROVINCIAL ELECTIONS.
[A.D.
parties the day was (•lian<;-e<l to the 24th June, on whicli
(Uiy the Court was held in the Comt House, St. Tlioinas.
31r. Colin Miicih>iiijiin 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' <li(l Hot know tliat any one else
(K'siivd to c-ontiiiue the case, and he had no reason to sup-
pose that any other person would continue it.
The Ch.VXCELLOU then ,<>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(»n in the Legislative Assenddy for the Province of
Ontui'io, and claiming the seat for Thomas Hodgins,
E<(iuirc, one of Her Majesty's Counsel learned in the law,
the misuceessful candidate at th<' said election.
That in conse(|Uence of the said petition being presmted,
it hecame necessary to enter into a scrutiny of the votes
polletl ami tendered at the said election, and I thereupon,
liy oriltM' hearing date the twenty-lirst ilay of May last
past (whereof a copy is hci'cto annexed), made provision
for holding in every local municii)ality in the said Elec-
toral Division a sci'utiny of the votes polled and tendered
in such municipality, and hy such oi'der apj)ointed a day
ami place within each of the said uuinicii)alities respec-
tively for entering ijito the scrutiny. And I did fui'thei-,
liy said order, appoint my registrar, Charles Allan Brt^ugh,
liarrister-at-law, toj act in my stead in the taking of said
scrutiny.
Tliat, as appears 1)y the re])ort of the said Charles Allan
Bmugh, hereto annexed, the scrutiny of votes polled at
-:h
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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 reporte<l that the followiiiu'
persons were proved to have been guilty of corrupt piac-
tices, viz.: (1) Duncan McKillop, (2) James Time well. (.Ti
John Livingstone.
(9 Journal Leyis. Assim., 1875-6, p. bs.)
Ls7o.]
WEST \VELLrN(JTON.
WEST WELLINGTON.
•231
Befork Mh. JrsTicE Gwynne.
CriK'lph, Joth and J'Jth Jiiiii', lS7(i.
(lEOROE MooiiE, PditioHcr, \. JoHX W:(h)\\ k^s, Rrtipimilvnt.
Aiinil/iiriiixfiiinj drink at iin'i'tini/ of thrtorx — .!.' Tic., r. i'l, n. ill ,- .«'/' \'h\,
i; .', /<. 1 — C'wAv orrnsloiu'd hi/ coiiditrt of I'Jlvct'ion Aijiiit — Currufit
priiit'iri s hji tiivi rii Jc'cjii !•■■<.
UiR' 1'".. an iigeiit of tin- reHpoiulent, Itvought a jar of wliiakey to a meet-
ing uf eluL'tors assunilileil for the purpose of promoting the eh.'etion,
ami gave ilrinks from the same to tlie electors present, whieli was
iielil a eornipt practice, and a violation of tlie Kleetion Law of ISliS, as
anit'iiilfil hy the Hlection Act of 1873, so that tlie election was avoided
tlierehy.
The costs of investigating cliarges of bribery against tiic responilent's
flection agent, though not established, were awarded against the
rcspdiident, owing to tlie ecjuivocal conduct of his agent in the matters
wliicii led to the charges ; also tiie costs of otlior charges of l)ribery
uliich were not establisiied, and the costs of proving tliat several
tavern keepers, for their own profit, had violated s. (i(i of the Kleetion
Law of iSliS, as the witnesses who gave evidence of these matters also
gave evidence of other matters, as to wliicli it was reasonable they
should have lieen subj)(enaed.
The petition contained the usual cliarges of corru})t
practices.
The candiilates at tlie election were the Respondent ami
Roltert McKini.
Mr. Hndginx, Q.C., and Mr. Gu.tJirie for petitioner.
Mr. Itnhinxon, Q.C., mid Mr. Drno, Q.C, for respontlent.
The evidence on which the election was avoided was
as follows :
Thi)iii">i 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<l
'Hit to the people attending the meeting. I got some.
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282
PROVINCIAL ELECTIONS.
[a. I).
Tlu' whiskey was servt'd out lict'oic he connncncctl to
n<l(lr(!ss the ine('tiii;.f. Tlic people who (hank staved tur
tlie nieotiniL;. Tlie wliiskey was in a Jar. it liel<l, 1 slutiilil
say, liy appearance, a gallon or more. There wei'e tliiiiy
or forty at tlie nieetinff.
Ediiiniid Jcnin'mh O'Calhinhdn : T live in the West
Kidinj,' of Wellington, and am an elector. I took .Mi',
McKims jmrt actively. I attended meetiuji's and sjinkc
for him. Mr. Fahey attended meetings and s[)oke fur
Mr. Mcdowan ; also Di-. Orton ; also, I think, Mr. Barrett
attended one meeting. 1 was at the meeting in Keiiy
settlement, lield at Rocky Mountain. The hills advo-
tised that the meetings were to he addressed hy Mr.
Fahey and ^^r. Orton. There were two meetings at tin,'
Kerry settlement. I think Fahey was late for the first,
and did not attend, and a secoiid was called specially to
hear him. The last was the one at which the wliiskey
was. I cannot say who hrought it. Several asked Fahey
if he had whiskey. He went to the door to look after
it. The cutter in whicli it was had gone. He asked
then for some persons to ge^ after it. Some hoys were
sent for it. It was hrought hack, and Fahey ])oureil it
out and gave it to the parties tliere. There were from
thirty to forty peo])le there. Fahey kept pouring out
until all was drank. It was immediately hefoi'e the
meeting connnenced that the whiskey was handed iouihI.
It was a puhlic meeting of the electors in relation to tlie
election. I went there for the purpose of replying to
Mr. Fahey, an<l did so. The neighhorhood was chiefly
against Mr. McOowan.
Oross-e.rdviiiird : I did not drink any whiskey myself,
f have not drunk whiskey for thirty years. I have
drunk heer prohably at meetings held dui'ing the election.
Was asked by several if 1 had had any whiskey. I saiil
no, hut I thought Mr. Fahey might have some, ami I
asked him. It never entered my mi nil at the time
whether he was an agent of Mr. McGowan or not. I
did not think the law was so stringent as it appears to he.
1H7.').
WKST WKLMXrJTOX.
2:{:{
Jiimis Fdlii'ii : I a(l<lr«'ss('(l souu' iiioctinn's For Mi'. Mc-
(low.in. I inMrt'ssrd a iiHM-tiiiL;' m the tuwnslii]) ol" Aitlmr.
I hi'iu'il it statccl luTf that wliiski-y was Itioiiiflit hy iiic to
the iiicctin;,^. I liad iiDtliiii;; to ilo with it, hut that it
cuiiii' in tlic saiiK' sh'iLjh with inc. Mr. Cliarlos Hiy^^-ar
ihiiV' inc. Ht' luul c'liai'gc of the sh'i;^'h. I ^fot out of thr
(•utter at tlic .sc'hool-liousi'. 'V\\v lioi'sc aiul cutter were
.scut up to Mr. Corncliu.s O'Duwds stahlcs. The wliiskey
wa.s in the cutter when it was sent there, ahout a ([Uartei-
of a mile fi'oni tlie scliool-house. I had uo inti-ution that
\vhisi\ev sliouM t'(jine to the scliool-house. When we were
loavinn' Mount Forest wliere we wei'c, l^in'^ar put the
whiskey in tlic siei<;'li. [ uevei' thought nioiv of it until
wc t;ot to tlie school-liouse : tliere was (|uite a crowd there.
Ml'. ( )"t'aIlaLi;han and Mr. Milloy aske(| me if I had any
whiskey, or if we would not ti'eat. I said, of course, you
never knew an Ii'ishinan that would not treat. I .saiil
that there was some in the cutter, hut it luid n-one away,
and that if they liad a min<l to send for it they could.
Soiiichody went fi>r 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<l, I liope this is not against the law.
O'Callaghan laughetl, and said he tliouyht not, and even
if it was, notliinir would he said aliout it. If I liad thouirlit
it was a;;ain8t tlie law, I would not have had anythii):^' to
do with it. The whiskey then went round, and it went
hut a short way.
-it •
!
:il
J//'. Ruhinson, at this .sta,L;i' of the case, sai<l that lu' was
satisfied that upon the evidence of Mi-. Fahey the' election
nmst he avoided; for that no douht ^\v. Fahey was an
agent, and hi.s acts a.s to treatin<^ at. meetings could not In;
justified. He therefore asked whether tlie petitioners
insisted .still upon the personal charges ?
1 , .,.,
tk.,
'\
" J
2:{4
I'UoVINCIAI, KI.KCTIONS.
[A.l>.
.)//•. 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<l pro\i<le and furnish drinks to a
meetiliij; of electors asseinhled for the purjjose of pio-
motin<f the said election.
J should not have allowed to the ]»etitioner the costs
nttendiiiLf the chari>'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 lm<l assumed. I regret very mucli that the
law as it at present stands dot's not enahle the Court, as
it does in the ca.se of election to the House of Commons,
to make the agent pay himself all the costs of this vain
iiKpiiry which his own v(;iy ei[uivocal conduct gave
occasion for. As l)etween the petitioner and the re-
spondent, the latter must hear the costs incidental to an
in(]uiry which the ignorance and misconduct of his own
agent, altliough not criminal, has occasioned. As to the
other charges of l)ril)erv, which also were failed to he
estahlished, and as to tlie costs attending proving the
tavern keepers to have \iolated the (j(>tli 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 <li>, 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<tiiits a.-i to which it was i-easonalile they shouM
have ht't-n suhp(eiiaiMl.
hi c'ci'tit'yiiif^f tlie lesult of tlie trial to tlie Speaker, the
learned .luilt;'e also reported that the followiiiL;' persons,
hciiie' tavern keepers, were proved to lia\e lieen miiltv
respectively of corrupt practices, namely, in keepin^' their
taverns open, ami selJiuL; therein spirituous and fermeiiteil
li(|Uors in \iolatioti of the (iiitli section of the Klection
haw of ISliS, namely, Rohcrt Ramsay, Daniel Sheehy,
Caileton Calvin (ireen, Theodore Zass, William Kirhy ;
and ther, that .lames Kahey was proved to ha\e heeu
mii corrupt practices, in violation of the (ilst section
(if the same Act, as amended hy the Klection Act of ImT-!.
(9 Jovrnal Lr()is. Assnu., |.S7')-(i, [). !•.)
SOUTH ESSFA'.
Before Chaxcei,i,<)1{ Si'HA<;f;E.
Sankwich, ''ith to mth (iiiil l-!lli ■Inhj, lS^-'>.
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, <and
before the opening of the poll, I think.
Crofii^-e.nimiiied : When McQueen ^iroposed t(^ drink we
went to Taylor's and sat in th.e sitting-room. The reason,
1 think, the polls wei'e not open is that it was eai'ly in
the morning, an<l I had just come up town. 1 went to
Lovelace's hotel in the middle of the day, and had a di'ink.
I and McQueen tos.sed up foi- the treat ; he lost, and \vi'
went in and had a drink. There were five or six of us.
I was bringing up voters to the poll during the day. I
u.sed my own horse and cutter in bringing voters to the
|)oll. I took a pretty active part in the election evei-
since my l)rother came out. We formed a little committee
at Ruthven to woi'k up the locality. I got a voters' list
and nuirked off names. I did not canvass, unless people
came to the store. I saw respondent twice dui'ing the
election, and toM him I thought we could give him
pretty good support. 1 told Dr. Allworth (respondents
mm
m-
\H7r>.]
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-. :!■
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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<l<iif cannot hi' made a piirfi/ to /ii/ifion — .J4 I'"'-, <'iip. .1,
■■<('<■. Jf',} — " Pi-rxon other than the c<ui(l'nl(it<\" — Form, oj Pclifhin.
The petition, liesidcs ciuirging tlie re.spoiideiit witli various uoi'riipt aets,
chiirgeil one of his agents with similar acts, anil chiimed tiiat the agent
was sul)ject to the same disiiualitications and penalties as a eandidati?.
The prayer of tiie pi'tition asked that this agent might he made a
party to the petition, and that he might he suhjeeted to siieli <lis-
([ualitieations and penalties
//'/'/, 1. Tiiat there is no autliority in tiie Election Acts or elsewliere,
for making an agent of a candidate a respondent in a petition on a charge
of personal misconduct on his part.
2. There is no authority given to the Election Court or thi; Judge ou
tile rot<i to suljject a person "other than a candidate" to such dis-
<|ualitications,
3. The .fudge's report to tlie Speaker as to those persons " other than the
candidate," who have heen proved guilty of corrupt practices, is not
conclusive, so as to bring tiiem within 34 Vic, cap. 3, sec. 4!(, and so
render them liable to penal conseiiuences.
The (ith (leneral Rule in Election Cases does not preclude the statement
of evidence in tiie petition : it renders it unnecessary, and is intended
to discourage such pleading.
The petition contained the usual charges of corrujit
practices, and in paragraph ■"] cliarged that the respondent
was, by himself and others on his behalf, guilty of bribci} .
treating and undue influence, which are corrupt piactices :
and (paragraph 4) of procuring divers pei'.sons knowingly
to personate and assume to vote at the election in the
names of other persons who were voters; and (paragraph -V)
providing drink and entertainment at his (resjiondcnts)
expense at meetings of electors; and (paragraph ()) of
keeping open divers hotels, taverns and shops where
spirituous and fermented li<piors were ordinarily .sold, ami
SOUTH OXF(mi).
289
1875.]
of selling and giving such li(|nor.s to divers persons cor-
rupUy to influence them. Other geneial charges were
also made.
The 17th paragraph stated that Peter Johnson Brown
was an agent for the i-espoudent, before, dui'ing, at and
subsequent to the electiou, in furthering the same, and
was liuilty by himself of each and all of the said corruiit
practices'; and petitioner .submits that the vote of Brown
for the .said respondent was therefore null and void,
and he thereby became incapable of being elected to and
of sitting in the Legislative A.ssembly, and of being re-
gistered as a voter and of voting at any eU-ction, and of
holding any otiice at the nomination of tlie Crown or the
Lieutenant-Governor, or any municipal office.
The sect)nd pai"agi"apli of tlie prayei' of the petition
aski'd that Brown .should be made a l»arty to this pro-
ceeding in respect of the said chai'ges .><o made against him,
to the end that he might have an oppoitunity of being
heard, and that his said vote miu'ht be declai'ed null and
void, ami he be declared incapaV)le in the several particulai
hereinbefore mentioned.
The petition contained no direct allegation tliat Brown
voted at this election, though it was submitted that the
vott' of Brown for the respondent was null and void.
A sunnnons liavinj,' been uranted to set aside the 17th
paragraph of the petition an<l 2nd ])ai-agraph of prayer,
Mr. F. (hlcr showerl cause.
J//'. Hiu/Zcs supported the summons.
DhaI'ER, C. J. A. — I ]ii-esume Mr. Hoyles represented
the respcmdent, and theivfore that the siuiniions is to be
treated as i.ssued on his application. He rested i»rincipally
on the ab.sence of any authority given by the statute to
make an elector, not liaving been a candidate, a party
called upon to answer a petition tiled and prosecuted to
avoid the election of tlie candidate actually retuine<l. He
also objected to the 17tli paragra])h, that, as against Inm,
•s
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240
PROVINCIAL ELECTIONS.
M
[A.D.
n\n'
\
:-51
it was a mere statoineiit of evidence, an<l was contraiy to
the spirit of the ()th General Rule made in tlie Court of
Queen's Bencli and adopted in tliis coui't.
(_)n tlie other liand, Mr. Oslerurocd that hy making the
accused elector a pai'ty, it gave him tlie opportunity of
being heard in his own <lefence, and of rehutting the
charges before the Judge who would try the issues on the
petition, on which trial the intpiiry would he pei'tinent to
the charge of cori'ujit practices. He also put in an affi-
davit to show that the chai'ge was not wantonly made,
and invited particular attention to the fact, that the peti-
tion alleged that Brown was an agent for the resnondent
as well as an elector.
The Act, .S4 Vic, c. •'}, makes no provision for this par-
ticular matter, though it does provide (s. '27) that two or
more candidates may be made respondents to the same
petition ; and (s. 2Nj recognizes that moi-e than one peti-
tion may be presented against the same election anil
return. But there is no analogy between tho.se provisions
and this case. The contest to which they relate is foi- the
seat in the House : whei'eas as to Brown, he is to be maile
a party only that he may be liable to penalties.
I fear great inconvenience would arise, if the agents of
a .successful candidate could be made defendants to an
accusation of pei'sonal misconduct in an election, upon a
]H'tition, the lea<ling obj(.'ct of which was to unseat the
sitting member. The Legislature has not, at least
directly, provided for it — none of the general rules meet
it — and this omission seems to me to require the exercise
of legislative power in order to .supply it. It would be
an addition to the powers which the statute gives, not a
mattei' of procedure merely in tin; exerci.se of powers
given.
The allegation in the I7th paiagraph — unless as a pi'o-
ceeding against Brown — would infringe on the spirit if
not the lettei- of the ()th (Jeneral Rule, because undei" a
genei'al charge of corrupt |)i'actices, speciiic details need
not, 1 apprehend, l»e given until an order for particulars
! '' 'i
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1m7o.]
SOUTH OXFORD.
•241
l ■
is iiiivle ; l»ut tlie I'ule does not prechide the statement of
sucli evidence, it renders it nnnecessaiy, and so fai' was no
dtmbt designed to discourage snch a practice. It" Brown
is pioperly made a })arty, I think lie would have a right
to such an order under this luli-. 1 have looked at tlie
Imperial Statute 81-82 Vic, c. 125, from the 4')th section
of wliich this of ours seems to have heen copied, hut that
Act refers to preceding .statutes in force in Englan<l, under
which proceedings might lie instituted.
Tiider our statute (84 Vic, c 8, .s. 1(J) the Judge is re-
([uired to ddcrinwe whether thememlier whose election oi'
return is complained of, or any and what othei' pei'son
was thereliy returned or elected, oi' whether the election
was void, and .shall foi'thwith certify in writing such
determination to the Speaker, appending thereto a copy of
his notes of the evidence ; and upon such eei'titicate heing
H'iven, siir/i (liicriniunt inn .s/i((/l be Jliuil. h> nU intiat^ mnJ
But the Judge is (s. 17), v.-luoi a eoirupt pi-actice is
charged, in ad<lition to this certificate, at tlu' same time to
niiurt in writing to the Speaker, among other things, " the
names of any persons who have heen pi'oved at the trial
to liave l)een guilty of any corrupt practices."
The ca.se of Sfn-rn^ v. / Ulitt, L. R. (i C. P. 147, ^\■hich
was not referred to on the argument, ])oints out \t'ry
clearly the distinction hetween a " determination "" and a
'■ report, ' and our own statute so clusrly rescmhles the
English Act 81-82 Vic, c. 12.'), that this ilecision is apjilic-
ahlf in many particulai's to the present caM-. It is the
.ludgi's duty to report, hut it is not said his report is to
lie tinal. The 4!)th .section of our statute enacts that
"any person other than a candidate founil guilty of any
cori'upt practice in any proceeding in whieh he has had an
opportunity of being heard,"' shall incui- certain penal con-
.se(|Uences. Now, if the Legislatui'e had intended that the
Judge who tried the issues rai.sed upon the election |»eti-
tion, and relating to the validity of the election and
return, .shouhl at the same time hear and detennine a
"H'
242
PROVINCIAL ELECTIONS.
[A.n.
tfili ^
charge of corrupt practices against one wlio had, as an
electoi- or agent, taken pai't in tlie election, it is, I think,
reasonable to expect that it would have distinctly saiil
so. It is ohvions that tlie Act was framed upon the Eng-
lish statute. The 49th se'ction of our Act is substantiallv,
though not in every detail, a copy of the 4.)th section of
the English statute, which, however, by section 15, giv^-s a
certain ert'ect to tlie report of tlie Ju<lge as respects
persons guilty of corrupt practices for the purpo.se of the
prosecution of su-^h p.'rsons, referring to another English
statute (2l) Vic, c. 29); l)ut that portion of the Judge's
report (h)es not attect the dis([Ualitication ; it is the
foundation of another proceeding. It iloes not .seem to
have occuri'ed to the framersof our Act that it was neces-
sary to provide for some " proceeding in which, after
notice of the charge," the person inculpated by the Judge's
report may have an "' opportunity of being heard ;" and
while making use of .section 4.'), they did not remembei- oi'
refer to section 10 of the English statute ; and thus, as
appears to me, the mode of .subjecting a paily to the penal
consequences of the 49th section has not been providi-d.
It may be as well, however, to invite attention to the fact
that our enactment applies to persons guilty of any cor-
rupt practices. The English xVct (.section 4-')) extends only
to those found guilty of l)ribery.
In my o[)inion the power of adjudging a person "other
than a can^lidate ' guilty of coi-rupt practices .so as to sub-
ject him o the dis([ualitications eniuuerated, is not con-
ferred either upon the Election Court or the Judge on
the ruta ; and that the Judge's report of " the names of
any persons who have been proved at the trial to have
been guilty of any corru[)t practice " is not final and con-
clusive, so as to bring such persons within the operation
of the 49th section as ftjuu'l guilty, and therefore subject
to the penal conse(|Uence.
I think, therefore, an order should issue to strike out
the 17th paragraph, and the concluding paragraph of the
prayer of the petition.
E >' !
],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
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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. 23<S.
Mr. Ji. A. Ilarrisoit, Q.C., (did Mr. II. B. Beard for peti-
tiiiiK'i'.
Mr. Bdluuic and Mr. F. li. Bull for respondent.
During the trial the following points were (k'ci<led :
All agent of a telegraph company was .subpo'iiaetl to
produce certain telegrams in the custody of the telegraph
company.
Durid Flook : I am in the Monti'eal Telegraph Com-
pany's employment at Inger.soll. The respondent and
Peter J. Brown .sent mes.saues through the office durinu"
the t'lection. The messages are in existence n(jw. I oljject
to produce them. I am instructed not to produce them.
17
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244
. PltOVINCIAL ELECTIONS.
[A.D.
After the ar<miuent of counsel,
Draper, C. J. A., said : 1 admit the riglit to call for the
telegrams, reserving, as a (juestion of law, whether the
petitionei- has a legal right to demand them, the resjion-
sibility as to any and all conse(|uences, if it he wrong, to
rest on the petitionei". The respondent having leave
reserved to move the Coui't of Appeal on the point, I
direct their pi'oduction.
A witness was calle<l to prove that s])irituo\is li(|Uois
were given during the polling houl's at Brady's tavein, in
Ingersoll. During his examination,
Mr. Hiirrison asked the witness: In wliat taverns in
Ingersoll, other than Bi-ady's, did you get liipior on polling
<lay, during j:)olling hours :*
Mr. Bcfliiuic objected. Brady's tav^ei-n is the only tavein
in Ingersoll mentioned in the pai'ticulars, autl thei'efure
the (piestion should not Ije allowed.
Draper, C. J. A. — I sustain the o])jection.
A paragraph in the petition charged that one James A.
Devlin, who had been a candidate at the election, was
induced by a corrupt bargain to retire from the contest.
During his examination, Devlin stated that he had been
asked to see Mr. P. J. Brown and another as to his witli-
drawal.
Mr. Harrison then appli(,'d that Mr. P. J. Brown sliouM
1)0 ordered to withdraw while the witness was oivinir lii-^
evidence.
Mr. Bcthiuic objected, as Mr. Brown was the attorney
for the respondent, and his presence was necessary to
assist counsel in the proceedings.
Draper, C. J. A. — I direct Mr. Brown's withdrawal
while this witness is examined as to Mr. Brown's sayings
and doings in relation to paragraph 8 of the petition
"^u^H^ilflWiHiP'il
1
1S7.).]
EAST PETERRORO.
24.-)
After a nuinl>er 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.-<srin., 187o-6, p. 10.)
EAST PETERBORO.
Before Chief Justice Draper.
PKTKitBoito, ..''Jfh to .'Stfi Jiilji, and .'nil Aui/uit, JST^').
James Stkattox, Pdifiomr, v. John O'Sl'LLIVAX,
Bcsjvmdent.
A'-i-!' of ciijini'i/ — Jii'.ipondinf'n Aij<n/ parfiikimj of Ih/iior ihirinij jmllini/
liiiiir-< not II cornijit prurt'ia — Miitinij of cbctor'* — Tridli/Kj In/ AV-
■^poniltnt'--! Aijoit — Hi T/''. , '•. ..^ ■•-■. .'—Lmr o/di/iin-i/.
A witness stateil tliat ho hail asked the people in his neigliborliood to
vdtf for the rospoiulent, liad attended ii nujetiiig of tlie respondent's
trii'iuls, anil made ai'rangenieiits forhringing up voters on polling day,
imd luid a t< am out on polling day.
// /'/, that the evidence of his being an agent of the respondent was not
.sutlicieiit.
One li. was appointed, in writing, by the respondent to act as his agent
tor polling day. l)uring the ilay he went to a tavern and asked U)i-
and \\as given a glass of beer.
II' III, that B. treated himself, and neither gave nor sold, and was not
therefore guilty of a corrupt practice.
One C. accompanied the respondent when going to a public meeting, and
i,auvassed at some houses. On tlie journey, the respondent cautioned
(A nut to treat, nor do anything to compromise him or avoid the elec-
tion. The respondent's election agent paid for C. 's meals at the place
where the meeting was held.
//'/'/, that the evidence showed that the respondent had availed himself
of C.'s services, and was therefore responsible for his acts.
Agency in election matters is a result of law to be drawn from the facts
of the case, and the acts of the individuals.
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240
I'UO VI NX^ I A r, ELECTK )NS.
[a.d.
A inentinj,' of i\\v cU'ctor.s was liuld in ;i town liiill, and ('. (tlic a;.'L'nt
ahovc uiinie<l) and a nundier of electors went from tlie meeting to ;i
tavern, wiiere tlicy wei'e treated by C.
//'/'/, 1. Tiiat thin was a meeting of electors assenililed for the puriiosi- df
promoting the election ; and,
2. That the treating by C was a corrui>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<l four or five othcis at
Westwood on polling day; I paid. I had luvandy ami
sugar; the landlord, Galbraith, brought in the li([U()r. 1
was cold, and had driven .S.') miles. 1 told the landhnil
that if he would not bring the liiiuor, 1 would get it myst'lf,
and he then gave it. One of the others said he had voted,
and it would do no harm to treat him.
Garrj/ Galbraitlt: I keep a tavern at Westwood. My
tavern was closed on polling day. Francis Birdsall caiae
and insisted on having something,and he gave something to
four or five who came with him, who said they had voted.
John Breakenridge may have drank, but I am not sure I
gave him any. I think Breakenridge was at my place
about noon. He was there again during the evening.
John Breaki'iiridfjc : I took part in favor of respondent.
I was at Norwood when Dr. O'SuUivan was there at a
public meeting. I was also at a private meeting at Bishop's
I.s7.'>.]
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 respon<h'nt himself appointed me. [Aj)-
nointiiient put in.] I i^^ot this from the respondent's
hi'other. Mr. O'Reilly was also naiued at my reipiest. I
did no treatiui;' on polling- day. I was in ( lalliraith's
tavern. I treated niysidf : I i^'ot a i^lass of heel-; I askeil
for it in tlie kiteheii, and ;L,^)t it m another room, not the
har. Francis Birdsall came with me. I pai<l for no drinks
for any person that day.
After tlie ai't,niment of counsel as to tlie au'ency of
FifiiK'is Birdsall, and tlit' pui'chase of li(|Uor hy .rohu
llriMkeiiridi^'e at Galhraith's tavi-rn, Westwood, during'
polliii!.;' liours on polling day,
Dr.VPER, C. J. A., said: 1 think the evidence of Birdsall 's
aL(ency insufHcient. As to tlie pui'chase hy Breakenridi^e
of li(|Uor in Galhraitli's ^r>vern, 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 aii<l keeping thr
taverns open during the Ixmrs of polling, ha.s l>een 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 returne<l to Holmes's. The respondent letired
almost directly for the night. A numl>er 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
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1S7.).]
EAST l'KTKIU5(»|{(>.
2+!)
nil ill t'uitli('riM<; tlic clcctioii for Iiiiii, oi- in tryinj^' to ijcf
votes for liiiii, tt'ii<ls to jirovc that tlio person so uetiiij;,'
was nutlioii/.etl to act m his au'eiit. A repetition of such
acts streiiLftlieiis the conehision. I fouml these eonchisioiis
upon jitithorities in the inotlier country, usin;^ to a n'leat
cxtfiit their \ri V Words, hut not simply <|Uotin;;' them.
To apply tlieiu to tliis ca.so. CIavana;^'h, at liis own re-
(|iu'st, which I do not (h)uht, and for ci'itain personal
motives whicli he asserts, — hut to which (exceptin^^ his
^■ratitnde to the doctor for his professional services) I ,ni\e
hut slight credit, — ucconipanii's the can<lidate on ajouriiey,
whicli had for )ne oltject to attend a puhlic meetin<; in
iviVreiice to the election at Apsli-y, and for another to
cHiivuss voters in a ))articular section of the county. It
was intended that Mr. Carne^-ie, one of the respondent's
authori/,e(l agents, should liavf yone with him. He <lid
not <fo, and ('a\ana:^irs re(|Uest tliat he .should he taken
was C()ii!^''i<'d with, though Mr. Caincgie says he ha<l no
desire to take him. Cavanagh says hi' was ac(|uainted
with people on tlie Burleigh Road, ami tliat he did not
canvass //ic irlm/r of the Burleigli Koad ; tliat on this
jniuiicy lie caiixassed at some houses, and perhajis
canvassed sonic voters whom they met on the roa<l, and
maij have introduced some voters to respondent. The very
Hrst witness calle(l in this case was one of them. On
their journey, Cavanagh states, the resjiondent, knowing
liis hahits (if I rememher rightly, lu' used .some .such
cxjire^sifi as " JIf loits on au'/nl fcl/oic jhr frrcfinr/"),
ca> 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.
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PROVINCIAL ELECTIOXS.
[a. I).
Ml'. John McDonalil, win) apjieared to me to be a very
I'espectable wituoss, saw Cavauan'h ii,ii<l the re.sj)oniic!it
togetluT, and took Cavanagh on one side and asked liim
wdu'tliei' lie had done anything' cowa'ds enabling parties to
get licjuoi' on the election day, ajnl I'eeeived his assurauct.'
that he had not. He- also sai<l he knew Cavanagh many
yeti ^.anil had heai'd of his charactei- as to being free handeil
in ti'eating, and busy in elections. Then Cavanagh goei^
to a meeting in ()tonal,>ee 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 <i iti'il in
Februai'v, b'^T"), hut I'elating to Cavanagh's hi iug at
Holmes's on tlu,' bSth January preceding. All these cir-
cumstances, taken sepai'atelv: may, or at hsast .some may,
bo deemed trifling and unimportant, l)ut combined they
ac(|uire weight and sul>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<l, T go back to
inquire intcj the acts of Cavanagh in ti'eating at Holmes's
after this meetimi; of the electors. His own statement mav
.sutHce as to this : " I was at the Apsley meeting, and after-
wards went to Holmes's tavern. Boyd and I treated alter-
nately, turn about ; I treated from about ten at night till
two in the morning; can't tell how many times; I paid
for each think as it was taken."
»W"*^|k-.' f|?'-,:;.).^,N|J!T«J'f'S!fP!VW
i87.).]
EAST I'KTEHRORO.
'>:>]
I think tliis is a ln-eacli of the 2u<l sec. of -iV) Vic, c. 2,
wliich ivpeals sec. <)1 of the Election Law of l>S()>S. 'I'lic
oiilv (juestion that can arise is wliether tins <h'ink was
furnislied to a " meeting' of eh.'ctors asseniltled foi' the
]iuip()se of pioniotint;' sucli eh'ction previous to or during;'
such flection." The meetinj.,' was certainly not oonveni'd
at Holmes's tavern, but at a town hall not far from it ;
iiiid (Javatingh, Boy<l, and anumher of electors went from
tli."t meetinj^' to Holmes's. It is not opini to ([uesti»in that
the iiK-etinq; was assemhled for the purpose of promotinji;
such election, unless the statute is to I'eceive the nai-rower
construction that a meeting of the supporters of only <»ne
oandiilate is meant, and the promotion of the election
means only tlie pi'omotion of election of that candidatt;.
I do not doubt that such a case would l)e within the Act,
and the evidence m the present trial is by no means con-
clusive against tins being preci.sely that case. Still I am
of opiiiioiv the wider construction is no more than what
the Legislature intended. If the meeting consists of
electors of different parties, and it is heM with the view
of promoting an election, it must nee -sai'ily be an election
of a repr(!.sentative for the whole constituency, to what-
ever party he nuiy belong. Unless the larger con-^i-uetioii
pivvail, a geiiei-al meeting of electors, ludd only for the
])Ui'pi)se of selecting a candidate, would not be within its
provisions, and the- providing an<l furnishing drink oi-
other entertainment to the electoi's pre.s"nt woulil not lie
piohiliited. I do not agree in suc^h an inti'i'|iretation.
.Vnother ditliculty has been suggested, namely, that the
tiditing did not take ])lace in the buiMing within tlie
meeting assembleil, and that the mectinu' was in fact oxer.
A similar (juestion arcse \n the Xnrth Wnihrmih rusr {/ms/).
1 there lielij that where a meeting had been hdd for the
promotion of ail election, ami after the ti-ansaetion of
their business they had gone generally together to a
iieighboi'ing tavern on Iht.' invitation of the candidate on
whose b.ehalf the meeting was held, who there furnished
III' [)i'ovided drink or other entertainment for them, it was
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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',
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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 <iay. The evidence was, that decanter''' were put
down, and people helped tlienis(dves, but there was no evidence that
spirituous liquors were used. The evidence was objected to at the
time, as the charge was not mentioned i'l the particulars, ))ut admitted
subject to the objection.
Ifilil. 1. That the nature of the ti'cat in the bar-romn of a country tavern
raised the pre sumption that the treat was of spirituous li(|Uors, and
was a corrupt practice, which avoided the election.
•J. That ha<l an application been made to add a particular embracing the
charge, it would have been granted.
A charge of treating a meeting of electors by an alleged agent of the
petitioner was not sustained, owing to the alleged agency nut having
lieen satisfactoiily proved.
One M., the tinancial agent of the petitioner, agreed witli :i \'otei' who
had a ditl'ei'ence with the petitioner about a rigiit to cut timber on the
voter's land, to si.'ttle the matter — the voter wiien canvassed to vote
for the petitioner referring to this dill'erence. M. signed an agree-
ment in the petitioner's name, wiiereby he surrendered any claim to
cut tiiiilier except as therein mentioned.
//'/(/, 1. T'hat a surrender of the right to cut timber on the lands of
another was a "valuable consideration," within the meaning of the
bril/i'ry clauses of '.\'2 Vic, c "Jl.
'2. That the agent M. wa8 guilty of an act of brilieiy.
Where the right of tlie petitioner to claim the seat is decided adversely
ill one ease, it is no prejudice to the resiiondcnt's case that other
charges against tile petitioner are not pruiiouiii'tMl upon.
Rccriiiiinatory charges are permitted in the interest of eleetcjis, in firder
to prevent a successful jietitioner obtaining the vacated seat if lie has
violated any provision of the Klectioii Law.
Tlu' petition contained thu usual charges of corrupt
piactices, and claimed the seat for the petitioner.
The vote at the election was: For respondent, 724 ; for
pi'titioner, 720 ; majority for respondent, 4.
f
ii..!^
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254-
PROVINCIAL ELECTIONS.
[A.D.
The respondent filed recriminatory charges against tliu
petitioner.
Mr. Hcdor Cameron, Q.C., and Mr. A. Boulthce for peti-
tioner.
Mr. Maclcnnan, Q.O., and Mr. P. J. Mclntyrc for re-
spondent.
During the trial, the following points were decided
respecting the particulars :
Mr. Maelennan, at the opening of Court, objected to the
paiticulars delivered by the petitioner, on the ground that
they were too late, not having been delivered within tlie
time limited by the order.
Mr. Cameron, contra : The ordc^r under which the par-
ticulars were <lelivered is not here, so the application is
defective. Moreover, the particulars were delivered, and
also further particulars.
Draper, C. J. A. — The particulars appear to have been
accepted, and never returned to the petitioner. I think
the application to set them aside should have been made
in Chambers 1)efore the trial, and that the respondent
should not have allowed the petitioner to proceed and
incur costs. Particulars allowed.
Mr. Maelennan, on oth August, moved to have the ser-
vice of the particulars on the recriminatory charges, under
ihe order of -Ust July, allowed, and read an affidavit
showing why an earlier compliance with the order /as
not made.
[The Chief Justice. — An affidavit should be tiled stating
that the deponent has reasonaltle grounds for believing
that he can prove the allegations.]
Mr. Cameron : The order l)eing for })etter particulai's,
shows that those previously (hdivered were insufficient.
The respondent ma<le no application until the 81st July,
and the order then matle was not acted on until the 3ril
August, and not, therefore, 24 hours before the day ap-
Pfpfpfi^pplii
lS7o.]
NORTH VICTORIA.
20.-)
pointed for the trial. Numerous witnesses must lie called
it" tlir particulars are now received, and the petitioner
must "et up evidence to reply. Besides, the order is not
complied with, as the residences of the parties named are
not "iven, and there is no facility for inipiirino-.
Mr. M'fclrnnan ■ The ord.i- recpiiring' jietitioner to de-
liver particulars to the respondent within a limited time
was not complied with ; Imt particulars delivered to the
ivspondent up to the night before the trial have heen
allo\\ed.
Dkai'EH, C J. A. — I am endiarrassed hy the considera-
tion that if these new particulars, or some of then), are
sustained, they would he of vital import. And, on the
other hand, the order being ma<le on, T must assunu-,
sufficient grounds, unless some suthcient reason — beyond
tlie delay in delivering the new particulars — be shown for
neutralizing t^e order, I am bound to give liffect to it.
The residences of the persons named in the new ]iarticulars
are given in the scrutiny particulars, and, in fact, no
prejudice is .shown. The petitioner is allowed to apply
for time to answer, and the indulgence now askcil is
ofranted on the terms of payment of .such costs as may
be occasioned to the petitionei by the granting of this
a] 'plication.
During the cross-examination of a witness called by the
petitioner, on the case again.st the I'espondent, the follow-
ing evidence was given :
Will id Hi Peters : I live at Victoria Road
Crtiss-c. rami lied : I kept my ta\'ern open on polling day,
and sold liquor as u.sual. There was no polling ])lace within
•'} miles of my hou.se, and I was told that 1 nee<l not shut
it. [The evidence on which Peters was held to be an agent
of the petitioner is omitted.].
Mr. M<tclennan, on the recriminatory case, contended that
the selling of li(pior on polling day by William Peters, an
agent of the petitioner, destroyed the petitioners right to
claim the seat.
%
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2:)G
TROVINCIAL ELECTIONS.
[a.d.
Mr. Boulthec objected, as there was no such chart^re in
tho particuhirs.
Mr. M/icletuian : The evidence on this charge was elicited
tVoiu Peters, who was called as a witness for the petitionei',
and he made the statement on cross-examination, to whit-h
no objection was taken.
Ml'. Boidf.bee: Peters was called as a witness on the peti-
tioner's case, and this evidence bears on the recriminatory
case. The charge is not in the particulars, and the witness
made the statement sua fipontc.
Draper, C. J. A. — It is not on the record that I can
find, in any shape ; nor was any application made to put
it there.
The evidence affecting the result of the election was as
follows :
Midcohn McDovrjall : I was at Simpson's hotel at Cobo-
conk about i or 8 p.m. on the polling day, and about h or
() miles from any polling place, while I was travelling
from Kirkville tc 8omerville. I treated about six persons
in the Ijar-room ; some of them were strangers to nie.
Decanters were put down for people to help themselves.
[The Chief Justice on the day on which he delivered
judgment, made tlie following note opposite the above
evidence : " Mr. Macleniian objected to this evidence, as
the charge was not mentioned in the particulars. 1 re-
ceived it suVjject to the objection. I did not think of
noting this at the time ; but now (bStli August), Ijeino-
reminded of it by Mr. Maclennan, I have a recollection
that it was so, but not the same as if I had noted it at
the moment. I did not then think it of any great import-
ance."]
Counsel for the petitioner conten<led that as it was
shown decantei's were put down for people to help them-
selves, the presumption was, that spirituous liquoi's had
been drunk on the occasion referred to by the witness.
1875.]
NORTH VICTORIA.
2o7
The Court was tlien adjourned until the LSth August,
at Osf'oode Hall, when the following judgment was
(lelhered :
Draper, C. J. A. — The unsuccessful candidate, Duncan
McRae, is the petitioner, and the respondent, John David
Smith, has tiled recriniinatory charges against the peti-
tionei'.
Tlie tii'st case relied on by the pctitionei' is stateu in
the pai'ticulars thus : That James Ellis and one Moouev,
a<ient of respondent, bribed Thomas Coulter and Thomas
Hoilgson by the payment of a disputed debt between
Coulter and Hodgson. The facts prove<l were that
Mooney asked him to vote for the respondent. Coultei'
would not promise nor did he refuse, but he .said that
there was a debt due to him for seven or more' years by a
tinii of John C. Smith & Co., John C. Smith being the
respondent's uncle. Mooney promised to write and get
the debt paid if he could. Afterwards Coulter saw
respondent and Ellis togethei', and again refen-ed to this
claim. Ellis sai<l that i'esp(mdent was not a meml)er of
the tirm when this claim arose (which was proved t(j be
the case). Respon<leut said he would write to his unclr,
and if it was right his uncle would no dou^'t pay it.
Coulter and Hol)den (not Hodgson, as stated in the par-
ticulars) voted for the respondent. Hobden was not
present at any of these conversations, nor interested in
them, and it does not appear that anything was done in
the matter. I think the evidence entirely insutiicient to
sustain the charge.
The next charge relates to an oyster supper at Buck's
hotel, in Minden. There had been an election meetinu' in
the Town Hall — about five minutes' walk from the hotel.
After this meeting was ovei' some of the I'espondent's
friends remained together consulting about the election,
and afterwards went to Buck's, where some of them
hoarded. There it was proposed to liave an oyster supper,
which Frederick J. Shove, one of the party, ordered. He
ii
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•2.-),^
I'HOVINCIAL ELECTroXS.
[a.d.
said lie had bucn WDrking liard for tlic ivsjjondcnt diirin(r
the day, and iieLMk'<I I'L't'ivsliinc'iit. Rcspondt-ut liad pre-
viously gone to his own room, an<l Shove invited him to
come down and join them. Respondent was halt" undressL'il
and declined, liut at the same time he urged Shove to do
nothing to prejudice the election, an<l Shove went down,
and seven or eight persons sat down to suppci-.
The respondent gave evidence respecting this to the
following ert'ect: 1 began to undress, when Shove came
in and said, " Don't you want to buy a load of oats !" I
asked him, " What do you mean ?" He said, " There are
a iew of us down stairs who are going to have some
oysters." It must then have l)een 11. .SO p.m. He invited
rae to join them. I e.Kcused myself, atid he said, " Cant
Jim Ellis pay for this :*" I said I thought he could. He
saiil, " Very well," and turned down stairs. Sliove swore
he thought the su[)per should be given. It was an under-
standing it should be for the benefit of respondent, but
resixmdent did not like the idea of giving refreshment.
Shove thought there was an arrangement that it should
be cliarged by Buck to respondent as a sale of oats. Sh()\e
said that he suggested this. Buck's charge was i? 18.20,
which was for the suppei- ordy. Shove made up the
account a day or two after the sup2)er. Oats were thirty-
two cents a bushel, and Shove swore that he thought that
was the way the amount was got at. Shove made it up
with one Lott, Buck's' book-keeper or bar-tentler. He
applied for payment, and Shove said forty-one bushels
of oats wouM cover it. He also stated on re-examination
that this supper was ordere<l without any thought of in-
tiuencing Buck, and that respondent said to him (Shove) to
be very careful to do nothing to interfere with the election.
He said that they wei'c careful, that the oysters were to
lie charged as oats, and that it was arranged with the
bar-keeper it should be chai'ged as oats ; and he concluded
his evidence by saying, " As we were working all day for
respondent, I thought naturally that he ought to pay for
our refreshment. I intended all along to have it charged
"■' "W'fT"^'™"
I
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NOIITII VICTORIA.
2.')!)
to liiiii. 1 tliouuht it Mrct'ssai'V to forwaftl tlif clcctiou."
Sdiiii' lit' tliDsc at till' sin")])(,'f wt'i'i' li()jii'<lt'rs at the hotel.
.Iaiii"s Kllis spoke of tliis .sn|>pt'r, and sai<I lie was one
(if till 1 tarty. He tlioui;']it 8:}.*2() woiiM lia\'e Iteeii ample
]ia\!iieiit for the sn[>[)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, an<l with his know-
K'llnf and consent, provided an<l furnislu'il driid< and
nther entertainment to a meeting of electors assend>led 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
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200
PROVIN'CIAL ELECTIONS.
[A.n.
impropt'i" practiw. Sfiovc insult' tlic JUTnn<f(Mnent with
the bai'-kt'ei)i'r, and at'ttTwunls niatlc up the account for
liini. I suspect tlic Itar-kct'per at fii'st lookctl t(j SIhivc
for payment, tlioui;li scarcely for the sum of !?l:{.'2(), for
I cannot find that Shove ever i^retentled to Ite respond-
ent's ajxcnt, or, even on Shove's own statement, that tlic
ivspondent y;ave him actual or im[)lied authoiity to act
as his a<,'ent on this special occasion. Lookinjf at Shove's
conduct and his account of the matter, I think his in i-
d((nce does not prove this chai'j^'e, and the only j)lau,sililc
H'round for sustaining it is the res]ion<leJit's statement
that Shove said to him, "Can't dim Kllis pay for tlu-ni .'"
and the respondent answered, " He thought he could. ' .\h.
Ellis's evidence of what Shove said when he came ilowii.
of the result of his inviting respondent to Join them, duc-
not sustain Shove's account of it, noi- does Ellis a])piai
to have said or done anything in i-egai'd to oi'dering (n
authorizing the supper to he oi-dered. In fact, Shove iv-
presents he oi'dered it hrfhir he went up to respondent^
room. I think it wotild lit; an extivme ct)nstructitjn tu
hohl this supper to l)e a \it)lation tjf section (il of the
Election Law t)f IcSGiS. Mr. Shove's langtiage mi'4lit !"■
heltl sufficient as against himself tt) subject him to tin'
penalty mentionetl in the (ioth .sectit)n of the Act, hut nm
to avoid the election. I find for the respondent in tin-
pai't of the case.
In Hicks's case the charge is that Antli-ew Washiniitdii
(agent ft)r respomlent), on the pt)lling day hired tlir
teams, horses ami vehicles of George Hicks and l)avid
Mitchell to convey voters to the poll, ant] also paid them U>v
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<l vote for res[)ondent, saying;
that he would take them and hrin^; Ukmu hack, and they
(•(Hild t'ecfl their horses and have diiniei'. Hicks said to
.Mitclifll, " W(.' should V(jte t'oi- Smith," and Washington
sajil " Ves, vote for Smith," and they aj^rced to jjfo.
Wasliin^ton then scutoti'his foreman on some business
\n jui'aher [)lace in a cutter, with one of tlie horses oi"
Wasliiun'ton's own team, witli instructions, afttir his errand
\\a>; 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 <linner.
On this eviilence I cannot find that Wasliinu,ton was
ai'tinu' as an au'ent for i'espi>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
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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<ls " he would see uw
another time, and thiuu's w(ndd he madi' I'ie'ht," to ImM
th(!m to imi)ort an undertaking' fraui^ht with [)enal cnii-
se(|Uences: and MeDou'^'all's assertion on oath " tliat In-
sai<l iiothine- to him (Sinipson) '■ to induce him to cliaiiur.
by Wiiy of l)romis(' or otherwise," is entitled to smiie cuii-
sidcration.
I lind for i-espondent on tliis cliar;;'e, as fai- as respect-
Ralph Sim[)son.
There is another item includetl in tlie same chii.i'^v —
that of having' hi-ihed or attem[)tei| to itrilie certain
tdcctoi's — uann'ly, Mrs. McDonald, of Kirktield, ami fur-
nished an<l otleriMJ a sum of money to the said Mrs. Mc-
Donald to use in coriupt ))i'actices.
It is shown that McDoue-all was cauvassiuL^' one -Inlm
^IcDonald in favor of respondent — not very successfully.
t'oi' he saiil he left him ([uite umlecided as to wliethei' he
would vote or no. They two were outside the house, uiiil
McDoue'iill went in to take leave. Mrs. Mcivae, a widowcil
sister of John McDoiiaM's, was there,'. McDougall sj)i)kc
of her as an ohl friend of his, and it mi^'ht he inferred
that his acipiaintaiice wdtli her preceded her mairia^c
He said she was in reduced circumstances. He put seme
money — he thought SiS — in lier hand, lait she was iiii-
willine' to take it. She said nothini'', but did not take it.
M-'.
NoltTII VI(T(»I!IA.
iM
Mcl)iiiiuiill swDiT '• Tliis wiis Mot tlic tirst nioiiry I luui
hm\i'1i Iht. I swrar I uctrd in this From iicrsoiiul I'cclinys,
;iii(l in M<t wjiy coiiin'cti'il witli the I'lcction."
This ollrr to Mrs. Mclliic wiis the only otl'cr of iiioiicy
hi' iii.'iili' to any onr whih' lie whs out tiici't'. lie dill also
li\r in that part oj' the country. lli' was tlic only witness
wliii spokr to this |)art of ihr char'^c ami ln' stri'iiuously
ilriiinl its truth, ami I Itrlirvi' him. 1 1 cscapril notiei' at
til ■ trial that thr charn'i' hail rct'cri-nci- toa Mrs. .McDonald,
and till' I'xidi'ucc to Mrs. Medlar.
I tiiid in t'a\'oi' oF the ri'spondnit on this pai't of the
cliar^v.
There is a further chai'^e that M(d)ouL,'all, as a^cnt for
till- respondent, wluch 1 ha\'e already found him to he,
nrilied Duncan .Monro liy payment of money.
Tit sustain this chari;'e M(d)i)UL;alI and .Moni'o were hotli
(■.\aiiiiiied. McDou^'all swore that he hired Moni'o to take
liiiii with his team to the Victoria Koad, to dri\'e him
iniiiid. lie went to ari'ani^'e foi' teams to carry in votei's.
.Mi'Kay arranu'ed to take his teams out. He made no
liariiiiin with him. Nothing' was said to liim that he was
tit he paid. " I made no Itai'^'ain with any one to lui'e
rlirir teams. I ^-ave theiu to uiiderstand 1 would not
|»r<iiiiise oi' pay for them." Monro swears, " I was out
with a horse and (fitter at Mi'. McDou^'alTs request on
Saturday, and at his reipiest (tn tlu; followinn' Monday,
the polliuL;' (hiy. I was paid upon Saturday ni^'ht. Xotli-
inu' was then said altout the Monday. I took a man (one
Sirkles) to the polls on Monday. Mr. McDouj;'all asked
me to drive a man to tlie ])ollim4' phice, and said nothini;-
ah'tiit paying oi- not payiuL;". If I wasotiered pay I would
take it. When I I'eturned .McDoun'all was g'one." Now
till' only money paid by McDoug'all to Monro is stated
til he S2. •")(), and that is shown to he foi- the hiriu;;' on
Saturday Ity the testimony of both witnesses, and to h.'.ve
been paid on Saturday niu,'ht. This ap[)ears to me to
ilisprove the charg'e of Itribery ; there is no jiartieulai'
charging the hiring or paying for the conveying of Sickles
pi
11
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1 mmm
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2()4
PROVINCIAL ELECTIONS.
A.I),
to the polls on Monday, t]iou;^di tlioro is an unsnppoiti'il
cliai'tfe ot' hi'ihinLj ont; Sickles l»v the payment of iiionev.
It is enou<^4i to say tliat this other charf^e (if advancci])
would not have been proved hy the foi-ej^oing evidciici'.
The reniainiiiL;- cliJ),r<j;'e relied upon hy the petitionci's
counsel was a charge of treatinj^ I»y McDougall, as a<;(iit
for i'(!spondent, upon the pollinjij day. The only witiu'ss
to prove it is Mc])ou,L,^'lll himself.
He stated that \u\ was at Sini})son s hotel, at Cohoconk,
ahout two or thr(;(i o'clock i).m. on the pollin^^ day It wtn^
al)out live or six miles from an}' pollini,' place. He wa.s
travelling from Kii'kville to Somei-ville. He treated
about six pei'.sons in the bar-roc/.n. Some of them wt;n;
strangers to him. His teamster was nam('(l K(l\vur(ls. He
(McDougall) did not know he was a voter. The l)ar-r<i(»'ii
was open. They onh' stopjted at Col)oconk to wati-r tlir
horse.s. McDougall said hediil not know what the jKirtiis
whom he treati.-d tlrank : that he was not in the haiiit nf
drinking anything stronger than beer or wine.
The respondent's coun.sel objected to the admissibility
of this evidence. [ have already ex[)i'esse<l my veiy clear
opinion, which I will repeat, that McDougairs agciuy
was sufficiently establishe<l by his own evidence, wliidi
proves also that he treated five oi- six persons at SimpsDH s
liotel on the polling day and during polling hours. The
([uestion as to what the pai'ties drank was raiserl, ami
was answei'ed by the assei'ticjii (not d(/nied) that tin;
witness had stated that decanters were put <lown ami
people helped themselves. I had not noted this particular
expression. In fact, it never occurre(l to me to iloubt what
was the nature of this treat in the bar-room of a C()Uiur\'
tavern.
Tt is my unpleasant duty upon this evidence to tiii'l
that respondent was guilty of a "conuj it practice" thr(iu;.;li
his agent, Malcolm j\lcl)ougall, Vmt without the resixnid-
ent's actual knowledge and consent.
I come now to tlie recriminatory chai-ges, of which fuiir
are relied upon by the counsel f(;r the respondent.
187.-).]
Xoinil VlfTOHIA.
2<
).)
1. T'lat petitifnun-, on the (Jth January, at Victoria Road
Station, provided drink and otlier (.'nt(;rtaitniu'nt at liis
own expense t'oi' a nieetinL( of eltictors assemlded t'oi- tlii;
iiurpose of promoting" his election, contrary to the tilst
si'ctioii of the Election Law of l.SliS. Hector Canipheil
proved tliat lie kept an inn at Victoria Road; tliat shoi'tiy
lii'fore the ])olHn^f thei'e was an election meeting of some
lifty or sixty persons at a stone Ituilding; after the
iiii'ctiii^ a innnher of them cauuc to Camphell's inn, and
(liiiik was L;iven to them hy or'cUM- of Daiglisli, wlio snid
petitioner would pay for it. During" the same iiftei'uoon
l);ilL;lisli himself returned to theiini,and [)ai<i 'he char^^'e,
wjiicli juiioiuited to 82. The jx'titiouer diil rot sj)eak to
Caiii[)hell on this mattei- at all. Iliehai'(l Killinu'sworth
^wore tliat he was pi'esmt when the petitionei- asked Camp-
Iiell if there wasanythiui;' in the char^-e relatinn' to treatino-
at his tavern on his (petitioner's) hehalf, and (yamphell
sail! there was no tr'ejitinj;', ami that he ilid not se-e peti-
tioner there. The petitioner, tiie last witness calle<l hy
respoinleiit, swore that the mei'tinj.;' at which lie was
iiniiiiiiuteil was h(;ld at a store-room a short distance from
the iiotel. H(^ expre.s.sed a douht as to whether l)al;^dish
was there, and said positively that lu; did not make or
authorize any payment to Peters (who also kept <i ta\ern
close hy) or to Camphell foi" anything furnislie<l that day.
He saiil he rt-ad the chai'ge respecting the treat at Cam[)-
liells to him (C. ), who.saiil there was no such thing — that
[letitioner was not at his house at all.
It was stated, and not denied, that Dalglish was the
[M'titioner's l»rotliei'-in-law. The petiti(jner pi'oves that
Dalglish accompanie<l him (driNing in the sleigh) on some*
of his electioneering tours; hut of any acts of his — ex-
cepting what Campltell swore to — I Hinl seaicely a trace.
I'lifortunately, the etiorts to ser\-e him with a suhpn'ua
OH (as I iniderstand) the day this trial hegan, weiv not
^llccessful. I am not ,satisHe<' that his character as agent
is pi'oved, and must therefoi-e decide i)i the ])etitio)\er's
fiivor (HI this chai-u'e.
^■"^■^
2iH)
I'I{()V1NCIAI, 1:LH(JTI()NS.
[A.L>.
IK
"^-■l
'2. Next <M)iiios Mcllroy'sc'.ise. Tlic )iai-ticuliirs arc in tliesi-
wofds : '•.Joliii Merry ami Aix'liiliaM McFaydi-n (McKad-
ycn), the fiiiHiH'ial agent of the petitioner, on the e\fiiiiiM>
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 an<l the ])etiliomM', and Merry said
he thought petitionei' and witness could settle it. After
the Kirk\"ille meeting was ovei', McFadyen, who was oni'
of petitioner's cK'rks, told Mcllroy to wait and settle this
matter. Mcllroy said if petitioner would gi\e u]i lii'^
claim to the rest of the tindiei', "we would call it s(|uaiv
and lia\(' no hard fei'lings ahout the matter." Mcdlioy
had prc\ iously t()hl Meri'y and (tilisoiithat if jietitioncr
would gi\'e up all claim to the timhei', except what lie had
then cut, he (Mcllroy) would not go against him : and
either then <ir soon after Mcllroy got from ^IcFadyeii a
paper in the following terms: " Balso\-er, .lanuary J^Jtli.
i'^7"). This is to certify tliat 1 do not claim any tindier
<»f Mr. McKllroy, excepting the ])ine tindier and the has.s-
wood that is alreadv cut on west half Jjot "i. on the ')tli
187o.]
NOHTH VICTORIA.
2()7
cm. in tlio township of CVirdcn, county <>i" 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 <n- Mid''adyrn wliat Mcilroy liad said in him.
l!i' aft' 'vaids heard that tiieiv liad hccu a settlement.
Ti'" 1" iiti'iiier in his e\ ideiice said as to this matter: ' 1
hiid ;i ti'ansactioii witli Mcllrny aliout tindier. I told him
1 liiid IK) claim e.\ci[it for the pine and hassw 1. Mei'ry
;isked nil- oil •' iiiu'ht of the meeting' if 1 was n'oi'ii^' to
claiiii any nunc of Mclli'oy's timliei', and 1 said I diil not
iiitind to cut any more of it. I ''• not I'eiiieudier that
.M(d-"adv<'n or (Jihsou said aTi3'thine; ahout it. I know
iiotliiiiL;' tooa^ he pa])er meiitiouetl liy Mcilroy. 1 never
liiard of n un il last .Monday, wlun I u'ot the particulai's
.M(d*"adyen is not an elector.'"
1 tliink that the surrendei- of a rii^ht to cut timher on
till' lands of another who desii'es to ohtain such siu'render
is I'li'arly within the meaning;' of the term " valualile con-
sidei'ation." It was oli\iouslv so i-e^'ardeil hy Ahdlroy,
and was so asked for and accepteil hy him. The exidence
is conclusivi' as to McFadyen having delis < led the assv.r-
aiire that Mcilroy would not in that event oppose tht^
jictitionei', ami as to his lia\ini;' heen an aueiit of the
petitioner.
! timl, theiefore. that the petitionei', throuj^'h his ag'ent,
.Vrcliihald McFadyen, was i^'uilty of a " corrupt pi'actice,"
liuf without the petitioner's actual k now led;^'e' and consent.
After the foiv^'oini;' juduipeiit was ^iNcn, counsel foi' tlie
ri'spondent called the learned . indices attention to a <lif-
tcivnce of ruliuL;' hetween the treatinn' hy Malcolm Mc-
l>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
a<ided the t'ollowintf to his judgment :
Draper, C. J. A. — This cDuelusion appeared to me to
rendei- it unnecessary to form an opinion upon the two
remaining matters advanced l)y way of recrimination. It
is mainly in the intei-est of electors that this fi'. quofjue
accusation is permitted, in order to prevent a successful
petitioner fi'om oI»taining the vacated seat if he also lla^
violated any provision of the Election Law.
However, in consequence of a reference made hy one
of the learned counsel to an apparent inconsistency lie-
tween my ruling in the Colx)conk treating case and ilw
keeping open on polling day of his tavern by WiUiaiu
Peters, I enlarged the time for pronouncing my Hiial
conclusion until to-day. I uuist say it struck me that it
would be an extreme case if I .should find myself com-
pelled to hol<l that Peters (though an election agent nf
petiticmer), being him.self the tavern-keeper and .sellinu,'
li(]Uor as usual in the coui'se of his business, could there-
by make the petitioner's return, if he had been electeil,
void, though no connection between the election or tlie
petitioner and the keeping the tavern open on the polling
day was shown to exist. Moreover, I noticed that Petcis
swore (as if justifying his acts) that thei-e was no pollin_<f
place within three miles of his house. I have been told
that there is an eiTcmeous idt^a aln-oad that the law does
not render nece.s.sary the closing a tavern at that distance
from the polling place ; and McDougall's evidence seems
to |)oint to a similar mistake.
Having arrived at a result adverse to the petitioner
up(jn Mcllroy's case, I can see no object in going into
Peters' case, and my refusal to receive evidence to suppoit
it could be no detriment or hindrance to the respondent.
On a broad ^•iew of the case, I am of opinion that tlie
eviilence in the Coboconk case was properly i-eceived,
though it may be doubtful. Had an application been
made to me in regular form to add a particular embracing
1875.]
CARDWKI.L.
2(59
it, I think that (always on reasonable conditiors) I could
not have refused; and if so — the evidence liein^- conclu-
sive to prove it, and given by an apparently veiy trust-
woithv witness — the erroi- resolves itself into one of form.
I adlu'i'e to my conclusion on the chai'ge avoiding the
election, an<l also to that upon McJlroy's case as against
the ]»etitioner. It is no pi'ejudice to his case tiuit the
(itlier charges are not pronounced upon.
(9 Juv.rnal Lcc/is. Afi'<c/n., liSTo-O, p. 18.)
CAR]) WELL.
Before Chikf Justice Dh.vpeh.
Bk.\.mi'TON, 7/h itiu/ Llf/i S(ptiinhii\ Iti'lfj.
Flu^'CIS O'Callaghax, Petitioner, v. John Flesheu,
Res2wndent.
Aft.< of' (t'/i nci/ — JJoy/ififi/ to n/ijiiisiiK/ caKd'nldti' — Corrupt /iracti''<.-<.
OneS., wlio (U'sired noiiiiiiiitioii as ;v caiididato by a Refoiiii (.'(invention,
was not nominated, and tliermipon, hoin liustilit_\ to tliu ciiiivuution
and its nominee, opposed the eandidate of tlic convention, uliieli there-
liy had tlie etf'eet ol .supporting the re.spondent. At the ehj.se of the
poll, the respondent pnhliely thanked S. for heing instrumental in
liringing about his eleition. S. owned a shop and tavern, Init the
lieeiise for the latter was in his elerk's name ; and during the polling
hours on polling day spirituous liquors were sold and given in tlie
shop and tavern.
//(ill. that what was done by S. at the election was in pursuajice of a
hostile feeling against the convention and its eandidate, and did not
constitute him an agent of the respondent.
The petition contained the usual charges of corrujit
practices.
JA/\ L'et/iiiue for petitioner.
J\lr. J. HiUijard Cameron, Q.C., for respondent.
The evidence atlecting the eh ction is set out in the
judgment.
Drai'ER, C. J. A. — The only point of impoi'tance in this
case is, whether the facts in evidence establi.sh tliat Peter
Small, a merchant and hotel keeper within this electoial
riding, was an agent of the re.spondent. That his hotel
270
rR(n'IN(iAI. ELECTIONS.
[A.D.
was open on tlic |)(jllin,n' ihiy, and dui'iii^' jtollinn' Imufs,
and that s[;ii'itnous li(iU()i's and l)L'cr Wfi'c IVccly uivcn
and sold tlicrcin. wen- not at all ilcnicil.
Tlu' circvinistances are peculiar.
A convention of the electors of the I'idini;'. who heloiinvd
to the Ret'oi-in party, was called to^fetlier to nominate tlieir
candidate for tliis election. Certain delegates ha<l Ikmh
chosen or otliei'wise a])pointeil to atteml this convention.
Petei- Small had fully anticipated that he would he tin'
nominee. He was a well-known niendier of the lu'foriii
party, and was a Roman C^atholic. He kept a merchant"^
store an<l a hotel in the village of Ballycroy, in the
townshij) of Adjala, an<l liad lar^'e dealings and coinicc-
tions thi'ouglioiit the I'iding. The convention, Iiowcmt,
disappointed his e\[iectations and nominate(l Mi-. IJowles,
who Itecame the o[)ponent of tlu; Conservative canclidate,
the now I'esjiondcnt.
In his cNidfiice Mi'. Small stated, in regard to IJowles
and his nomination liy tlie convention, that " ])eople voted
foi- him (in tlio convention) who had no light to vote. J
showed up the ct)nvention ; I asked people to vote against
Bowles. 1 made it umlerstood I wanted to defeat the
nomination of the convention. I considered that BowJo
had personally hi'oken faitli witli nie. Tliougli I liada con-
\ersation with the respondent afti'r Bowles" nomination, I
never spoke to him at all about the election. By opposiiiL;'
Bowles 1 was in t'tfect supporting res])ondent. A large
nund>ei' of my frien<ls are lloman Catholics. I suppose
tliei'e are seven ov eiglit iiundred Roman Catholics in the
riding. 1 reiiiemliei' telling the i-espondent to see young
AValsh and lie would give him some information. " On liis
ci()ss-e\aminatio)i he saitl, " It made no ditlerence to nie
who was the nominee of the convention, ]^'opl(.■ were
allowed to vote in the convention who had no votes in the
rilling," and he mentioned the names of several such
per.sons. ' Tliat was the ground of my acting pulilicly.
I was never answered except by (me Jones. I had notliing
1S7.-1.]
CAUDWKM,
271
to<lo with tliL' respondent in tryinjji' to procure liis cifctidn
uitli'T for his pai'ty's sake <ir liis own."
Wfiish was a clerk and employer of Small in the stoi-e
and hnsiness, and occasionally in the hai- of the hotel. He
dso tlie telee'i'aph (j[)ei'ator, the telegraph otliee iieiiiL;'
^toit', which, with the hotel (all foi'niine' one huild-
was i
ill t!i(
IIP'), was
hurnt down in Ai)ril lust. The hotel liei'ii
se was
taken out in WalslTs name. Spirituons I
loUors wei'e .sold
111
tl
le s
lop as well as in tlu' hotid. Walsh said he was a
C'(iiiser\ative. anil was
from the lirst favorahle to th
ivsponilent, and spoke to others in his favor and to y'et
votes for liim, and wrote one oi' two letters with the sam*?
oliject. He s[M)ke to the respondent ahout the election,
and was his scrutine(!i'ini;' a^'ent at tlie poll at Rallycroy
under an apjiointnieiit si^'ned l>y 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-
<iil of the di.s.satisf action of the [Ionian Catliolics at the
unfair e.xclrsion of Snial
a I
id that he tlio'm'ht tin
S (||S-
sitisfaction improve<l respondent's [)rospeets. After the
ii'sult of tlie polling was known, and late in the evening of
iP,
hl;' <
lay. the respondent returned thanks for hiselection,
and said he w^as thankful to Small i'or heiiiL;" instrumental
ill hiinging alumt his election, wliieh remark may ha\e
heeii made ill iroiiv. as Small li.ad supixji'teii Bowles at a
previous election. On cross-examination he ( Walsh ) ad-ied,
' I think Small expected the nomination, and I under-
stcjod he was thrown out because he was a I^onian
Catholic. There was a breach of faiih aiuonn' the mem-
w
H^
272
PROVINCIAL ELECTIONS.
[A.D.
Iters of the llt'i'i)nii couvciitioii ; there was a cliaiiic
Itetvveeii the open and the secret votiiiy, and Mr. Siiiall's
i'eelin<,' arose from this."
I have s(>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 <lispute(l.
Small by his own evidtMice,as well as by circumstances
ap]>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<j;s whicli was prejudicial to tlie
iidiiiinee of the convention was favoralile to the respond-
ent ; that every ohstrnction plac -d in the path of the one
was pro fiinto a clearinjii; of the way for the other ; hut, for
the ])urposes of this ([uestion, I must i-e^ai'd the motive
wliich hron^htahoiit the acts re-lied u])on. I think I ha\c
tlic key to this whole con(hiet, and that I have shown
what dominating influence governed him. All that hr
is ]UdV(Ml to have done is accounted foi' hy his hostility
towards the convention and their nominee, while thei'e is
really no direct evidence of his hasing done anything
which furnishes the ordinaiy proof fiom which agency i>
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<lt.'iK'(.' of aclmixsioiis iiiaile by an agoiit after liis aueiK'V lias cxpi
roil 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;- <liiy,
wliicli lie pr('sent('(l to one Peter lliuuilton, an a^cnt of
llie r(s[){)nilent, on the <lav after the eh'ction,
Mr. Ciimmni askecl what Hamilton said to the witness
wlieii he presentefl the aet'ount to him the day aftei- the
rIcctiiiM.
l)i;Ai'i:i{, C. J. A. — I refuse to allow the ((Uestion. Ilam-
iitnii's agtiney expired with the cli-ction. I^ncu if he
asserted sonic fact of importance lteal•in,^• (;n the issui', liis
statement of that fact would not he evidence to charn'e
the respondent. As to mere ailmissions, there can he no
(li»uht ; as to matters of fact, Hamilton may he calleij.
The e\idi'nci' on the cliai'oes of coi'rupt pi-actices showeil
that two persons, Cai'dinclle ami l^a Phuite, who had can-
vassed anion<f the French voters, liad treated several ])er-
sDiis in taverns dnrinu,- jjollin^- hours on polling (hiy. The
I'vidence on tlie otlier charges is set out in the judgment.
Draper, C. J. A. — At tlie close of the petitionei's case,
Mr. Bethune achnitted tliat the agency of Cardinelle and
La I'laute was proved, and that he could not deny that
the evidence established that tliey. heing such agents,
had violated tlie (iOth section of '-Vl Vic, c. 21, and conse-
i|Uently that the respomh-nt could not retain the seat.
He contended, however, that whatever was done hy these
aifonts c(jntrary to law was done contrai-y to his wishes,
and without his knowledge and consent. Tf the petitioner,
however, persisted in the personal charges, he called u|»on
the counsel on the other side to state on which of them
hi' I'elied.
10
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WEBSTER, NY I4S80
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PllOV I NCI A I. KLECTH )XS.
[a.d
it^
Mr. Camoron stated that lu* rclijMl on tin* wr-ond parti-
(Milar, cliai'Ljiuj; that rt'spoudriit ort'ciTd tuoiif John hiakf,
a vot«'r, ptTniaDt'iit «'ni|»h)y>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<l pollin;; phu-e in Nortli
Monae:han.
I need not take uptime in discussin^r the «,'videnoi' of
Drake. His statement is that when the respofident askftl
hiin for his suppoi't, he ivplied he had not made up lii>
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<'<l to to
stiitt' what lit' coiiltl j)rov«', aiwl he ptit his mark to a
st'itviiifut (Irawii up from his answer- to this int|uiry. W^'
'ati'il oil thr trial that he hopnl, as tinu's were <hill, to
si'curt' work for the ('Hj.iiii;^ summer, aixl that ln' told his
ihtii t'iii|)ioy«(r(\Ir. Olark), a frw minutrs aftiM* rr'spoinleiit
lift, that the rcspojnh'ut Iwul askcij him foi- his vote, and
had iijl'iiril liim work for next summi-r, which is stroiiifcr
tliaii his present statement. The res|)ondent swore that
when he asked Di-ake for his vote, that he promised so
readily that he doul»ted if Drake knew him — that Drake
(lid not ev(!ii ask him " If I'm i<lh\"' etc., and that not a
word passed hetwoen them on the suhject of respondents
^ivin;j; him work. S«'veral witnesses were examined with
ri'ferenee to Di'ake's character for truthfulness. In answ(!i'
to their unfavoraltle statemtMits, a numher of persons
were calleij wh(t amply sustaineij him. Hut I am <piite
clear that in the face of tin; resj)ondent s positive denial,
I cannot take; Drake's uncorrohorattMJ a.ssertion as sutH-
cieiit to sustain this p(>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 lian<l, and plenty of money to
spend on it, and he would employ workmen as .soon as the
election was ovei\ His statement of a jjiomisi' of the re-
sjtondent to ;;"ive him work in return for the exercise ol"
his inthience at the election is positively denied hy the
I'spondent. J cannot on such a statt' of evidenci; timl
tiiat this [)er.sonal chari^c is proveil. I may remark also
that I am notdisposc"! to treat what a candidate may say
ill puhlic, to the assenihled electois, lu'foi'e or durini; an
election contest, as fui'nishing evidence of otters oi- j)ro-
iiiises to corrui)t individual.s. An appeal to his business
as heiui,' a heneKt generally to tlit^ community, or to
I'ertain dasse.s of it, or to the employuu'ut of his capital
V I
'H
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1
I
:
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278
PROVINCIAL ELECTIONS.
[a.d
in a manner promoting tlie prosperity ot* the constitut'iicy.
if honestly and truly iiuule, is no more proliihited l)y the
law than an appeal to distinguished puhlic services wouM
he, wheTi a man is fortunate enough to have them to
appeal to. It is against the personal corrupticm of iixli-
viduals that thi; law hasl>een provided, and that law will
be the more respected if it he a<lministered in a s[)irit uf
wise modei'ation.
Then comes the charge which i sis upon tlu' cNidt'iicf
of John C VVooil, and which may oe statffl in nearly his
own woinIs. Respondent "asked for my vote: I told him
I had none. He told me, it' you will LTive me your in-
Huence, 1 will give you the painting of what woik 1 am
carrying (m ; you can (h) agooil deal among the Knglisli
people. I toM him I did not think much of his promises."
The respondent meets this thus : " I did not .say to him
that if he wcmld u.se his influence for me. I wouM give
him work." In commenting on this case the resjjondent's
couns(>l 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
wiilin<!f to <rive him a considerati(m. It may he that t'le
words are open to such an interpretation. I do not, liow-
ever, ivst upon it; 1 am not free from (hmht whether tlir
word " employment," as used in the statute, refers to the
mere indi^tinite hiring of a mechanic or a lahorei-. It is
connected with the words " office " and " [)lace, " and if tlie
ma.xim nosfitar a sociis he ap[)lii'd to its coiistruetion. it
could scarcely include ca casual hiring. The present case,
however, does not rendei' it necessary to decide that poi'it.
There is here an assertion on one side met by a contra-
diction upon the othei*. The accu.ser admitted an un-
friendly feeling to the I'espondent, and his own !'ei»utatioii
for veracity was somewhat impeached. 1 treat this charge
as not provwi.
Daley's case was given up by the counsel for the [eti-
tioner, and Taylor's case is the last to be disposed of.
IS?.-).]
WEST I'ETEUHflKO.
279
Fiv(l<;ric'k Taylor was put upon the roll as an elector,
liiiiij,' owner of Lot No. H, east of Water Street, town of
Pctt'rlforo, and in the West Rifling. He ha<lsol(l this [)ro-
jicity in June, LS74, havin<^ removed to Ijin<lsay in Oct.,
|,s7-{. He had also a voti^ in the Kast Hiding. He was
iiski'd to vote in that riding, and went to Peterhoro on
Saturday, Kith Januaiy. He was at respondent's house
aliout four hours, hut, he says, had no conversation with
him at any time i-espccting his voting. But lu' talked
with Kairhairn, a deik of resj>ondent, 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 .*{<Sth Victoria, under which Taylor could vote
at till' election, at the polling ])lace where he was stationed
during the polling day, an<l Kairhaii'u handed to Taylor
tliis ct-rtiticatt', together with an apjmintment in writing,
si^ni'd Ity the respondent, authorizing Tayloi' to act as his
aii'ut or scrutineei' at the polling place in North Mon-
a^han. Taylor .said that he thought these docuiuents were
Lfivt'U to him to enable him to vote without taking the
Voters oath — it was said it was not likely he would he
swoin there. He went to North ^ronaghan with one
Roltinson, who was also an agent foi' i-espondcnt at that
polling place. They arrived at the poll hefoiv nine a.m.
Taylor teufleretl his vote as eai'ly as he could, and the
voter's oath was not tenderetl to him. He i-etui'iied to
IVterhoi'o without even entei'ing upon the duties of re-
s|)()ndent"s agent at North Monaghan, and voted in the
East Riding.
( )n the examination of the i-espondent upon a Judge's
order, he said, " I .signed 'uy appointments of agents in
lilauk, and they were filled in hy the connnittee." And
t'urthei-, " 1 understood on the polling day that Taylor
wt'ut out to North Monaghan and voted there. I may
liiivc heard, the Saturday before the polling day, that
•, .'Si
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280
PROVINCIAL ELFXTIONS.
[A.n.
Taylor was to bo sent out tlu-ri*. I think it is likely tliat
I «litl hear it tlu'Ti. I understood tl)at lie was goinj,' out
th(Me to act as a^^ent, and that he would vote there. I
think he came «lown from Lindsav on the Fritlav or
Saturday. Very likely I understood from himself that
he was f.(oin<^ out to North Monaj^han. He went witli
Rohinson, who was mv affent at North Mona<duin. 1
understoo<l that tlu^re was a (|U(Nstion whether his vote
was f^'ood or not. I knew that lie had sold his property
in Fetei-horo. It is possible that he may have lieeii
.se^nt to North Monaj,'han as 'iiy aj^ent. for the purpose of
^ottiuij his vott! in. I was undei- the impression that he
was .sent thcire for that purpose. I tlidn't .sujijxtse lie
was ji^oinjL? to stay there all day to act as my a^ent.'
Robert Faii'bairn, however, .says that he asked Taylor to
go out as a^'ent foi- respondent to North Mona^dian ; that
he really thought Tayloi- had a vote ; and that he asked
Taylor in good faith to go as .- ;'utineei',an<l not from any
th(»ught of getting a vote — that he did Tiot know he li.iil
.sold his pi'operty — atid that he knew Taylor had n(» know-
ledges of tilt' voters in North Monaghan.
It was a<lmitte(l that there were appeals to the C-ounty
Jud<;e airainst the votei-s' lists in each of the wards in the
town of Peterboio for the year l!S74, and that the lists
which wei'e u.sed at the polls were the lists of 1<S74.
(Jpon the evidence given before me, I find that j)rior to
June, l<S7+, Taylor «)wned property which entitleil liiiii
to v()te in the West Riding of Petei'bor(», an<l that lif
])arted with it in June, I(S74, but that his name wus
in.sei-ted on the roll foi' that year, and it is not proved that
it was taken off on any revision of appeal.
I find that 'J avlor was (hmbtful of his riijht to vote, and
whether he could properly take the voter's oath if caiitil
upon to do .so.
I find that it was ajireed tliat Taylor should be nonii-
nated as respondent's agent at the polling place at North
Monaghan, in the West Riding of the county of Peter-
boro, for the day of polling, and that a certificate shouM
»f f-i< * i
I.s7.'».]
WEST rETEl'.HOUO.
281
lie oMaiiK'd from the Kcturniiij^ Officer nmliT tlie liSth
Vic, eliHp. 'i, s(!C. 2H, to eimhle Taylor to vote at tlie
iM.Iliiij,' station at North Monaj^'han.
I tiinl that such ceititicate was ol 'iietl t'roiii tlie Ke-
turniii'T < )tHeer hy one Laey, a elerk ol th«' resi)on<lent.
I timl that the res|)ou<K'nt hatl sii^ned appointnu'iits in
Idaiik, ami |»lacetl them at th«' <lis|)osal of his eoiinnittee
for tin- eleetion, in order that the blanks should he tilled
with the names of such pers(ms as shouM he selected to
act as a^^'ents at the sevi'i-al pollini^ places
I Hnd that Kohcrt Kairhairn, who was a clerk of the
r.'spondent, ^^ot one of such aj)j)ointments so si^nied hy
tlif respondent, in which \\\v name of Tavl<»r was inst-rted,
tlioULch it was not prove<l hy whom.
I timl that Kaiihairn delivi-red the said certiticat*' and
the sai<l appointment to Tayloi'. and that Tayloi' proceeded
ti» the polli'^^ place at North M(»nai^han and voted soon
after- the p"!l was o])eneil, without takinjf or having ten-
<li'i('(l to hiid the votei's oath.
1 find tiiat immediately aftei- having votetl, Taylor
left North Monaghan and returned to Peterhoio, without
having I'utered upon the duties of agent for res[)ondent at
the polling i)lace at North Monaghan.
1 find that respon<lent knew that Taylor was going to
North Monaghan to act as agent and to vote there.
I find that I'espontlent was aware that a douht existed
as to V hether Taylor liad a I'ight to vote, and knew that
Tayi'/r ha<l .sold the property in l'«'terl»oro which was his
only t|ualiticati()n to vote at that election.
I tin<l that Taylor was sent to Noith Monaghan in the
expectation that his V(jte would he i-eceived witlumt dis-
pute, and that he would not be recpiired to take the votijr's
oath.
I Hnd that Taylor's appointuient as agent for respondent
was merely colorable, and that the i-espondent did not
expect that Taylor would perform the duties of agent at
the polling place at North Monaghan.
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2S2
PUOVINCIAL ELECTIONS.
[A.1).
Aiul I li'.scrvt' for tlu' (Iccision of tho Court of Error and
ApiM'iil the (|iK'.sti()n of law wliother, uikIim- tht'sr fiiidiiiirs,
I shouM hold and ri'poi't that a corrupt practice has Ihm-ii
couiuiittcd hy and with the actual knowledj^c and consent
of the icspondcnt, or l»y hi.s a«(cnt or agents without his
actual knowl('dM[o and consent; and I reserve the final
detei'iiiination of this petition, and the certifying,' tlwreof
to the Clerk of the Leifishitive Assenihly of Ontario, until
the .said Court of Error and Appeal lu\ve expressed and
jj;iven their opinioti ami determination upon the (juestion
reserved, oi- have made .some other decision or oi*<lei' in
the piemises.
The (piestion of law reserveil l)y the learned Cliiet'
Justice was argued before the Court of Appeal i)n the
17th September.
The CoruT (l)iaper, C. J. A., Stiong, Buiton, and Pattci-
son, JJ. A. ) held that the act complained of was not a
cori-ui»t practice within the statute ; hut under tlie circuiii-
.stances, gave the i'es[)ondent no costs.
The Chikf JrsTlCE theieupon ci-rtitied that the election
was void, and reported that Cardinelle and La Plantf
were proven at the trial to have been guilty of corrupt
practices.
(9 Journal Lajis. Assem., 187o-G, p. 17.)
IN?.'..]
HAI/roN'.
2M»
II
1 " r
H ALTON.
BEIOHK CMIKF Jl'STiCK DUArKH.
Mii.roN, I. 'Ill to I4t>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><i Imllot —
r nihil iiiitiiiiiri- lirihvrji — l'riiiiii.ir n/ a " iiin pnxint "--A i>/>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.
<Jii,iri. Whether the act of the agent as above set out was undue in-
lliuiue under .S2 Vic, c. "21, s. ~'2.
"n a charge that the respondent olfered to bribe the wife of a voter by
a "nice present," if she would do wiiat she could to prevent her
Imshand from voting, three witnesses testified to the offer; the le-
siiondeut denied, and another witness who was present heard nothing
of the offer. On this evidence, and there being no proof that the
witnesses in support of the charge were acting from malicious motives
or corrupt exjHJutation, nor <iiiy evidence impeaching their veracity,
the charge was held proved.
rile respondent appealed to the Court of Appeal on the finding of the
learned Chief Justice on the above charge of personal bribery.
1 '
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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<l^fnK'nt, it aj)-
jifart'il in evidence that the respondent and one MrC'raney
called at the house of Nathan lloltins to solicit his vote.
There were [)rt'sent at the time Mr. and Mrs. Rohins uml
their .son.
The eltect of Mi"s. Iloliins" evidence was tluit respondent
said to her if she would keep hei' hushaud at home fioni
^oin^ to vote for Beaty. he would do somethinir for Ik r
and <,dve her a nice present. Mrs. Roltins said she would
do what she could. Respondent put his han<l on her
shoulder antl said, " Do what you can and keep your hus-
haiid fiom the election, and I will make yt)U a nicf
present."
Nathan Rollins said, " Mr. Barher asked my mi.ssus
wlu'thershe would try to cjet me not to <'o to the (flection,
or to <^et me to vote for him, and he would do .some-
thing for h«'r."
The .son, Nathan Henry Robins, said : " I heard Mr.
Barber .say if she would keep father at home or get liiin
to vote for him (Barber), that he would <lo something nice
for lier, or make her a nice present, or get her .somethiui,'
nice, I am not sure which ; there was something nice about
it, any way. "
i^:
i.s;:..]
HA I, TON.
2m:)
TIk- i-( s])oi)tl('i\t, ill his (xaiiiinatinii. <lcini><l thut lie IukI
nH'fiftI Mrs. Holiin.s anytliin;^'. McCrancy sai<l ln' was
iiifsfiit at tin- time of iWis conversation, l»ut that he ha<l
luanl nothing of any pronii.se h('in),nna<le to Mr.s. Ilohins.
Dit.M'KH. ('. .1. A. — I am under the necessity of j,'ivin^
iiii (Hill ju'l^'iiient fidm tht' notes whieli I have matle. after
a cldsf examination and careful consideration of the t«'s-
liiiKiiiv of tlie varioijs witnesses. I may .say that l»ein>'
stiiiicwhat n«'W to the practice of di'cidin;; t|uesti»>ns of
tact, 1 have felt this duty especially hur<leiisome. wlu-re
tlii'iv was conti'adictoiT evidence upon important points.
1 can, however, without ditliculty disjio.se of several of
tin- cliariLres of tri-atin;^', as I am satisfied, hy lookinj^ care-
liilly at the dates assi^Mied to them, they took place at too
(■ally a peiiod to Justify a conclusion that they were acts
(if corrui tion desi(fne(l to atfect this election. There
wvvi- ca.ses which, havin;,' ri'jfard to the time when they
liiippened, were much more tiuestionahle. They were how-
ever, taken separately, not only in some dej^'i-ee douhtful,
Idit also very trivial, and weiv too few in numher to tri-at
them as in the aii^'re^fate sullicient to estahlish ^'eneial
dcsiniu'd or .systematic corruption. Ai^ain, a meetin^^ of
(lectors all of one way of thinking,', to support a pai'ticular
caiKlidate, or of a committee to aid in his retui-n, at which
refreshments were provided at tlu- expen.se of one or more
of them, could not, unless in .some extremi> 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'ecte<l by such |)erson, and shall
cau.se the ballot paper to be placed in the ballot box. A
form of d(!claration iso-iven in Schedule C to the Act, and
an attestation clau.se is given in Schedule 1), to be signal
l>v 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<lidate or his agent to a vote, as well as
a refusal of a voter to take the oath or atHrmation, when
he has been reijuired ami refu.ses to take the .same.
It seems clear to nie that no one but the Dei)uty Re-
turning Officer is authorized to perfoi'ui these official acts,
Is7.').]
II ALTON.
287
Id' to intfrfiTc with tlio votiT, or <|m'sti(m him as to his
voti- «»!• his rij^'ht to votr. His imiiic imist he on thi* voters'
list ; this >,'iv(vs him a prima fadr ri;^ht to vote The ean-
didatf or hisH<,'»'Mt may ol)j('ct, ami tht'<hityof the Deputy
l!(tiiniiM!,'OtH('ci' is in that case phiiuly prrscrihcd. If thr
voter is it'(|iiir(Ml to tai<t> 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 mentione<l in the !>th
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<,' <lay with the intention of votin*^. Mi'. White
(ibjecte<l : " My wife owned the property." White said,
" I couM not vote unless I would swear the propeity was
niy own." The Retui-ning Officer said, " I had a vote.
Th(! Returnintjf Officer read the oath; I was a little afraiil
to take tlie oath aftei- \\ hat Mr. White said. He said I
could n(jt take it ; lie said he would look after nie if I did
take it. I had never heard the oath read l)ef<jre. Mr
Whitt! insisted I could not vote unless I was owner, and 1
would not, swear that, and withdi-ew." Mr. White swore
that h(! thou^fht he told the V(jter that he thought he coulij
not take' the oath, and Black refusal on hearing the oatli
read. He (Mr. White) said he tlujught the man had no
light to vote; that lie did not intend to mislead him; that
he had no intfuence over Barry, and did not know hiin
before.
Looking at the 72nd sec. of -^2 Vic, cap. 21, I find it
vt-ry ditfieult toch'terminc that this is intimidation within
the meaning of that section. If it were, the only or the
most obvious meaning of the words used, so that they
would convey to the voter the itlea of forciJ, violence or
restraint, or the iiitfietion of injury, damage, harm or
loss, or in any manner import intimidation, as by threat-
ening the use of force, etc., the case would be within the
72nd section, and the offence, undue influence. All that was
said, was sjiid in the presence of the Deputy Returniiiu
Officer, whose bounden duty it was to have protected the
voter; and that he ( Wiiite) was present within the polling
b.)()th only {Is agent of the respondent, and where he had
a.y reason f(»r (hmbt, his duty was to requii'e the oath or
affirmation to be a*hiiinistereil, but not to deter the voter
from taking it by the suggestion of a [loint of law as te
t!ie extent of a husband's right and interest in the wife's
real estate. The only act of the Returning Officer was
proper, the reading the oath to the voter. He ought tn
have o-one further, and have forbidden Mr. White from
interfering with the free exercise of the voter's judgment,
ir
IHT.r]
H ALTON.
289
ami, it' necessary, b) have rejiioved him fi-om the polling
lioiith. I am not snrpi'ised, considerinif the several topies
(■iiil>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 pursue<l hy Mr. White and the Deputy Re-
turning Officer.
[The learne<l Chief Justice then reviewed the evidence
as to the Rohins'case {nnti', p. 2JS4), and proceeded:]
I assume that the particulars gave the respondent
notice that this charge would he advanced in order to
unseat him. If this l)e so, and the conduct of the Rol>ins'
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)ointe<lly
and directly — a charge of a novel character, and attended
I'
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TjfF.sff-ii-i -■
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290
PRO VI N'Cr Al. KLKCTH »xs.
[A.I..
witli c()ns(M|Ut'nc'i.'.s to which j)ul»lic att<Tjtioti has h»;»'ii hut
I'L'Ci'iitly stronj^ly drawn — in wliich 'v^iitntiuc*- ini^'ht l.c
more rcasonahly |)ivsuiiu'(l in ix-rsons of th*- apparent
station and knowltMli^c of the Kol»in.s' family, hut wliidi
I should not venture to attj'ihute to a nieniher of the
Housi' of C'oninions or of the Ijt';iislative AH-wmhlv.
I liave felt that 1 could not avoid declaring; the rlrctiMn
of the respoiuU'nt to he void on the ;^rourid tliat a conunt
practice, namely, that of hrihery, has lx.'«,*ii proved to li;i\c
Iteen committed hy the res[)ondent himsi-lf in iiiakin;^' ;iii
otttT of money <)i- valuahle consideration to ('In-istinji
ilol>in>, in order to in<hice lu-r t(» pro<-ur<' or endeavor to
procui'e the vote of one Nathan liol»ins in favor of the
respondent at the late election of a nieuilwr of the Mouse
of AssemMy foi' the county of Halton.
From this decision the respondent appe-aled to the Court
of Appeal.
Mr. BInhr, '^. C. CAttorney-v"ieneral of Canada), 'hkI Mr.
Jiilliunc for respondent.
Mr. Jiitius IJcit/y, (.»). C, ft)r petitioner.
Richards, C J. — We <lo not think we r-an proj)erlv
interfere with the decision of the learin,'d (Jhief .lustiee mn
to the facts found by him, the ^'eneral rule lM-in;r that the
Hnding of the -ludge, who hears the witni'>s4-. 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 in<hiee lier hnshand to
vote or refrain fi-oin votint; at the eh'ction.
It is not in terms an offer of money. Does it imply that
•ioiiiethinn' ''/ niliir is to he i;"iven if tlie promise oi- otter
is caiiietl ont .' an<l if so. is that not what is meant hy a
[•roiiiise (»f money (tr a vahial)k' cf)nsi(leration '. Not a
|iroi)iise of sometliini;' which has no appreeiahle vahie,
sucii, for instanci.', as to make a huly <»ne of the |)atronesses
of some e\liihition, wliere no one was to reeeive any
|ieruiiiary lienetit hnt all were to jiay money: or huying
a tieki't to admit a })erson to ^ronnds on which a pic-nic
was lieiii^- heltl, where each person attendini;' paid for or
t'lirnislu'd his own hnich ; or to make an electoi- a memhei'
III' an election committee, where he woidd receive no
riiiolument, and would prohalily he compelled to lalior,
ami mi^'ht he suhject to loss.
Wlieii this otter was maile was it a mere pi'eteiu-e '. \\\\
\\f to presume the respondent wisheil Mrs. Kohins to
uiiikrstand, as she appeal's to have understood, that sht.'
w.is to receive a i)resent of s(Hiie value, when he intended
t(i ^ive her somethin^'of no value or no api)rt.eialile value '.
This woulil he pri'sumiiiu,' a certain kind of fraud on his
[lart, and in his favor to relieve him from what would he
the consoijuence of his act, which I <lo not think that
jmlui's or covu'ts usually do.
' )ne of the earlier statutes on the suhject of hrihery,
7 Will. III., c. 4, [il'ovided tliat no j»ersoli to he electetl to
>tivr 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
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292
PUDVINCIAL ELECTIONS.
[a.d.
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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, an<l he shall he incjip-
ahle of heinjf a candiilate or heinij' elected durinu- that
Parliament.
The ahove provisions were re})eali'd, and the Lt'gislaturf
of Canada pas.sed the .statute 2'S Vic, caj). 17. The tiist
three suh-.sections of .section 1 of that Act <letine hiiheiv
in the same way as it is defined hy the Imp. Stat. 17 anil
IM Vic, cap. 102, and hy suh-seetions I, 2 and -l of sec. t)7
of the Stat, of Ontario, .S2 Vic, cap. 21. These provisions
were in force when Cooprr v. S/mfr (27 L. T. Rep. I'M)
was decided in England, and I suppose are still in forcf
there.
The words of Baron Alder.son, aftei' giving the judgment
in Cooper v. Shulc, as reported in 27 L. T. Rep., I-)!',
are : " 1 entertain this opinion also, whether the rest <»t
the C^oui't agree in it or not, that the words ' money nr
other valuable considei'ation ' ought to l»e expoiunlod.
money or other valuable consicU-ration estimable."
in construing this statute, we must consider what was
the intention of the Legislatuiv ; and there is no doulit
the primary object was that votes should l)e given from
the conviction in the mind of the voters and those who
sup)K)i'ted a candidate that lie was the best person for the
situation, and that the public interests would he best
ri-.i
is".').]
HAITON.
293
scivcil I)}- electing him. The evil to he corrected was th«'
sUj»i)oi-tinj,' a candiflate, not heeanse he was the propei-
|M rsoii, liut i'ov " fdifid hicri." The su|)j)orting of the can-
didate heeanse of personal henetit to himself; the exercise
(it' the franchise not for the public jjfood, Vnit for personal
"iiin in money oi- money s woi'th to the voter or the per-
son iniluein<4' the elector to vote or not to vote, was what
tlic Lenislature wishecl to L,Miaivl against.
Then what was the motive pi'esented to the mind of
Mis. llohins, in tlie ease iindei' consideration, to induce hei'
liushand not to vote against I'espomleiit :* It was that she
was to I'eceive some sulistantial ailvantage from it, either
ill iiioiiey or propei'ty — somt;thinn of value. She was to
have a airr ptrsitif. The evidence showed she considere<l
it would he somethinn' of value — not of mere fanciful oi-
iiiia!.,^inary value, hut of real value that would he (ij)jnrci-
iilih\ What (jccun-ed would well justify her in supposing
tliat the resjjondent intended to give her something of
value, and that he intemled to give \wv, in the language
of the statute, a valuahle (not a fanciful) consideration
fur imlucing her hushand not to vote; and slie, entertain-
ing that Itelief, tried to induce her hushand to abstain fiom
voting.
So that, in fact, the evil which the Legislature inte'uded
to prevent actually existed in this case. This woman was
mrrnii/nl by the ott'ei", and she endeavored to exercise an
iiiH.ieiice over her husban<l fi'om the desiiH- to get the
jiri'sin/ which had been promised hei\
1 understanil when a c(jrru[)t pi-omise has not lieen
canied out, that the election .Judges in England — to use
the language of Mi'. Justice Willes in tlie Lirlijicid easi' (1
<>M. 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<le) against the resj)ondent, U})on
Barlow voting for him, for not procuring or trj'ing to pro-
ciuv him a place in the hospital."
\'\
r.
il
1 1
n
I •(
■i ^s
2!)4
I'HuVINCIAI, ELECTIONS.
[A.I..
But I <1() not lUKlt'istuivl tliat the' promise must Im- uuc
for which, wert' it not jirohil»it<'<l hy the Conui)t Piiictict-s
Act, iin action \voul<l lie for tlie breach of it. The tridimr
of the promise reipiires to lie satisfactoiy, ami, as far as wc
are concerneil, that t|Uestion lias already heen tlisposetl of.
My liiother Pattei'son has <;iven me a note of some cases
not referred to in the argument; the oMer ones shuw tliat
as a matter of pleading" it was necessary to show /'•//"/ \v;i>
off"ere<l, and in that view would seem to yi* a Jon^- way in
sustaininj^' the view j)ressed up<»n us liy the respondent,
liiit the modei'ii cases, under this very statute, are, I think.
the otlu-r way.
I (juote at some lenj^th th" lauL^iianc of the learnr(|
.[udii;e who tried the fjinmnslini Ehrtidii Pititioii. in
which Col. DeaU'in was res[)o!ident. In t at case (.'iO L. T.
N. S. 'S2-*}), Mellor, J., .said in relation to the piivilene
<j;ranted l»y Col. Deakin to his tenants to shoot rahliits on
till' fai'ms leased hy them, " 1 cannot help thinkinti' that
it was to tho.se tenants a valualde consideration, and /A"/
tlir i'jf'crl till tlir iiiiiu/s of' tlir.sc lintiiit>< 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 inten<led to put down all coriiipt practices
and influences at an election, I am not narrowing; hy any
construction of mine tiie ett'ect of it, hut am ^ivini;' all
proper effect to it The conchision at
which 1 have arrived is, that the givino'of this concession
InT-''.]
IIAI/roN.
29;
til the tt'iifiiits, iiiwlfr the (•ircunistaiifcs, wus citlitT ji j)r(»-
iiii>i' <•• 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,
(■<i]i. 102, sec. 2, sul»-sec. 1 as I have ali'ea<ly meiitione(l,
similar to the si'ction of the Provincial statute under which
\vi' are called on to decide the case hefoi'e us. The pro-
mise to the voter was, '• 1 said lie would 1k' renin ne rated
for his loss of time." The leai'ned Judi;e who <;'ave the
judainent, Mr. Justice Mellor, said ; " We delayed giviny'
• lur judLjiiient at the close of the argument, not hecause of
any douht existing in our minds as to the answer which
We ought to return to the (juestion put hy the Judge of
tile County Court, but l)Ocause we were as.sui'ed hy the
CDun.sel for the defendant that the election Judges had in
tlieir decisions upon the section taken a view diti'ering
from that which we were disposed to take. Ha<l the fact
hi't'n as suggested, we should not have felt oui".selve.s
m 1
ii
I'
M
I;
]^i Hi
it
296
I'HOVINCIAL ELECTIONS.
[A.D.
Iiound l»y tho opinion of the election ju<l*;('s, unless upon
consideration we had a<fi'eed with it, l»ut we thou<;ht it
desiralde to ascertain what opinion had in fact heen ex-
Dressed l»v them with reference to a subject with which
their duties had necessarily made them familiar. Hpnii
in(|uiry, we find, as we anticipated, that those learned
Judgi's have expressed no opinion adverse to the con-
clusion at which we have arrived. Their observations
upon this .section, so far as it refers to an ojfrr oi- prdinlsr
iiof ncrvptnl, merely expi'e.ssed a I'ule of prudence ami
caution as to the quantity and character of the evidence
l)y which such an 'offer' oi- 'promi.se' should he considered
as proved."
"We cannot doubt the words used, 'that the voter would
be reiniuiei-ated foi- what loss of time might occur.' did,
undei' the cii'cumstances, amount to an offer or promi.se to
procure, or to endeavor to 'procure, money or valuable
consideration to a voter,' in order to induce him to vote
at tliO election in (piestion. The exjiression ' ri'umneratiou
for lo.ss of time' would necessarily convey to the a))pi('-
hension of the voter that if he would vote for a partieular
candidate he should receive, either directly from the
person offering, or by his procurement, hkdic// or valuable
consideration which he would not otherwi.se ol»tain ; and
any as.surance of that kind, which can oitl// be so under-
stood, is calculated to operate upon the mind (jf the elector
as a direct inducement to vote for such candidate."
After referring to Cooper v. Shdc (0 H. L. C. 74(5), the
learned Judge proceeds : " It is so important to the pu'iilic
interest that electors .should be left fi'ee to vote witliout
any disturbing influence of any kind, that we feel our-
selves bound, in construing the statute in question, to
give full effect to the plain meaning of the words used,
and to npply them to the substantial facts of the case,
H'ifhoiU rnisiiuj subtle distinctions or refinements as to thc2>^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 <li<l sult-
^tantiiilly convoy to tlu' iiiinil of Mrs. Rol»ins that it' she
usfil ht'i- iiiHucnc'i', as the ros|»(»n(l('nt wished her to, she
would, in the lanufna^^e just |Uoteil, receive u onev or
\alualile considcratifni which she would not otlu cwise
(ilitain, and this was cah'ulated to operate on her mind as
a diit'ct in(hicenient to do wluit the respondent wishetl.
Our iluty, tlien, is to ,i,dve eti'ect to tins statute, thou;,di
llif eonse(iuences of oui- judgment to the respondent will
111- so very serious. We are not at lihei'ty to fritter away
liy sulitle (H.'.tinctions an Act of Parliament. The .same
ItMnicil ,fud<;e whose lanyuaye I have (pioted ahove, Mr.
.lustiee .N[ellor, in one of the recent cases decided last year,
the Ildlfoji t'fisc (2 OM. k H. 144), uses the following-
laiinuai^e on tliis suhject: " I take it to he tlie <hity of a
.ludLje to take care tliat he does not fritter away the
iiR'aniny of Acts of Parliament V»y any .subtle construction,
liut to ufivf a hold (Itut at the same time cautious) decision,
which shall fui'tlier ratlier than (U'feat the ohji'ct of any
.\ct of Parliament of this cliai'acter whicli he has to coii-
strne.'
We are all of opinion that the judgment of the learned
I'liief Justice shouhl he atHrmecl ; tluit the Clerk f)f tliis
Court should certify to the Clerk of the Leyislativ(^
Asscnihly that the said responth'iit was not (hily elected ;
that the said respondent was proved to liave heen guilty
nf a corrupt practice at sucli election, and that such cor-
rupt practice was hy promising to Chiistina Rohins, the
wife of Nathan Rohins, if she would keej) hei' hushand
from voting for Mr. Beaty at the said election, he wouh!
givf her a nice present.
Tliere is no reason to Itelieve that coi-rupt practices ju-e-
vaili'd exten.sivelv at sai<l election.
We direct the respondent to pay the costs of the trial,
of thf petition, and of this appeal.
Sthon(}, J. — The ([uestion of fact argued on this appeal
must, I am of opinion, be held to l)e concluded by the de-
* -
; :f
■; 1
■i It
J i 3
•2:>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<lc(l to liiiii o|>|M»rtiiiiitit's nf
olisfr\iiiL; tlif <lfiiit'aiii>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\ere<l hy tlie research of my hrotlier Putter.soii. clearly
shows that We must hold it to ha\"e heuii a j)romise or
otl'eidf "valualile consideration" witliiii section (i7, suh-
.seetion I. of :]'2 \'ict., cap. 21, a conclusion to which for
reasons which I do not thinU it iiece.ssarv t<) 'dve at
leiiefh, as they have heeii already stated in thi' judgment
of the Chief .lustice, I should ha\e come, even if we luid
not had the satisfaction of knowing' that our view was
supported liy the high authority of the Engli.sh Court of
(^)ueen s F^elicli.
in my judgment tlie ai)iieal must he disiiii.s.sed with
costs, and the certificate should he as already indicated l>v
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(i<l hy hotli ])arties as .somethiui;' of value, and would
Convey to the mind of the party to whom it was iiwule,
that if the elector would vote for the candidate he would
ifceive soiiiethiniL;', and could only he .so understood.
Pattkhsox, J. — The finding' of his lordship the (1iief
.liistice of this Court, that the respondent promised Chris-
tina Rollins a nice present if she would jirocure her
luisliand to vote for the i'esp(jndent or to refrain from
vetinn-, is clearly supported hy the evidenct'. Aftei- hear-
uil; the witnes.ses and .seeing their demeanor, and testing
the value of their evidence hy n consideration of tlie
circumstances which tended to give ]M'ohahility to tlie
•statement on the one side, as against the opposing evidence
<>t 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 forme<l of the witnesses i)V the .hld^JC who sees
ami hears them. In many cases the Hnilin;^' of a fact
(lepen<ls not so iinurh npon the credit to he attache<l to uiic
statement as a;;ainst anothei", oi- to thcorctlit to heacconi-
c«l to indiviihial witnesses, as npon the |)ro|)er dechictien
from facts which are not seriously ijisputeil. ( M» iniestiniis
<le|)en<lin<^ on such considei'ations, appellate courts frr-
(piently reverse the tin<lin«f of coiu'ts lielow. Kveu wlieiv
there is contiictiujn" e\iilence,an<l where nuich may depnni
on the ci'e»(it i.'iv<'n to particular witnesses, the appellfitc
court may, hy the i-eport of the .IikIlcc who hears the
witnesses, lie enalile(l to review his timlin;^' ; as noticed hy
liord ()'llaL;an in Uw ens*' oi' S//iiiiiii//()/i w Si/iiiiiif/foii {\j. ]{.
2 Sc. A)))). 424), where he says : " On tlie tirst <piestioii ■\r
have luM'U fairly pressed Ity the arjjjument, that the Lord
Oi'dinary, who luul tlu- advantaifc of seeiny; the witnesses
and jud^'in;4' of their veracity fi'om their demeanor heforo
himself, should not have hi,, decision lie;htly .set aside;
and undoubtedly tlic value of rim voir testimony can Im-
nnich hetter ascertainc«l by those wIjo hear it than hy
those who know it only by lepoi't. But thei-e is this
peculiarity in the present case, that the Lord Ordinary
has put us somewhat in his own [)osition, and eiiableil us,
.so to speak, to see with his own eyes, when he states tlic
impi'cssion pro«hiced up(m him by tlie principal witness,
and (h'sci'ibes liei- as ' a <^drl of modest appearance, who y-ave
her testimony t/-euerally witli an air of truthfulness," iiiid
ho speaks favorably of her aunt, another witness, who.so
part in the tran.saction is of great importance. Besides,
we are conci'rned diivctly, not witli the Judgment of the
Ijord Ordinary, but with iliat which overruled it, and the
latter we ought to affirm, unless we are satisfied of its
eiTor." In tlie pi-esent case I can see no ground for ariiv-
ing at a conclusion different from that of his lordship
tlie Chief Justice, who jfaves credit to the Robins family
I ST.-.]
H ALTON.
:i01
alter curcfully liiilaiu'injj; the n-asoiis fur pivtVii-iii^' tlu'ir
account of tlu' ti'iuisaetioji.
I havi', liiiwcN t-r, liml stioii;;' iloiilits wlictlicr tlif pro-
inisr t<» make a " nlrr finsinf" was an (itrfr <>t" " 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<l we were icferied to a
dictuiii of AMerson, li., in Cim/ur v. S/m/f, which is noteil
ill till' repoi't of that case in 27 li. '!'. Ivep. l-i!'. ami '2 ,\\\v.
N. S. 1020, thou<rh not in the ivport in tl K. \' R 447.
Tiir lepoi't in the .liiiisLis: " Ahler.son, H.,a<l<leil : I enter-
tain this oj)inion i Iso, that tlie words ' money or other
\alualile considcrntion ' ou^dit to he construed to mean
• money or other \aluahle consideration to he estimated
liy money." "
1 have not seen any ca.se in which any .lud^e or court
ha> 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 (<i H. 1^.
('. 74(i.) In the Lduiursfon msr (2 ()"M. .V 11. 12!), :{()
L. T. N. S. ,S2:}), Mi\ Justice Mellor held, that an offer l.y
a landloi-d to his tenants of the privilen'e of shootini^-
ralihits on tlieir farms was hrihery, hecause it was a valu-
iihle i-ousideration, capahle of heinj^' represenieil l»y .some
iiinney value. If the (piestiou liad heen mei'ely whether
an otiei- of a nice present was an oth'r of somethinif hav-
ini;- some money value, 1 shouM not have lu'sitated much
a,s to the correct decision ; because I think theic can he no
<li)uht that such an offer would convey to tlx." mind of tlie
per.son to whom it was a<ldre.ssed, that something wliich
was either monev or monev's worth was to be uiven. Mv
•louht has been not as to some vnlnr InAng, implied, but as
to whether the words " valuable con.sideration," which are
H
i„l
ii
I \
;3
[III,
I <■
ri
I ''>'
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<l, hill oi- n.ote, or conveyance of land." Haviiii>-
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[)<jii this point is not distin^^uisJiaMc in pcincipli.
from the piusent case. It is so iiiij>r>rtaiit to the puhlic
interest that electors sliouM he h;ft i'lfn to vote without
any <listui-l>inn' influence of any kind, that we f»;."l our-
selves Ijound, m consti'uin<^ thestatut*,' in <ju«.-*tion, tocive
full etfect to the plain meaning of the word.** u.sed, and to
ap[)ly them to the substantial facts of the case-, without
luising sulttle distinctions or retiiiem<'nts as to tht- pi-ccisc
woi-ds ov expression in which the i>v<t\ti\s>; 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 <in<l ;jth S<j)t'ml,ir, 1^7':
Wll.I.IA.M McC.\SKlI.L, PdUlomr, v. ThoM.XH P.\.\ToN,
JRrsj)i/n(/.i lit.
Tri'dtbiii at n nurthni of I'lcrtttr" — iJlson/irtif rrom/ — yJ7<//<-»/, nut/ Lmr of
(Ol'iirt/ — Toirnsh'ip romntittcix — i'lulin- i/iidc-M-t- Si-Hbuvnt of an (M
(tiitt — lirVirrij —Penal sttitiiti'n — A/ijxnL
A iiiootiuj,' (if the electors wius lielil at a taveiii, ;tt wliii.h hotli camliihitcs
wei-e present. A dispute arose, ami the meeting broke up anil the
parties left the room as a disonlerly erowil, ami Ix.-gan pullin>{ ott' their
coats and talked of lighting. A treat was j)ropo»4r<i to ipiiot the people,
an<l one V. (held by Wll-ioii, .]., to he an agejit oi the re.tponileiit),
treated, and the crowd (juieted down an<l <lwiiiill<,'<l away.
Ihld (jKi- Wd-'inii, .].), that the treating, under the <,'iri:iitnHt.incfcs, wa.s
not furnishing drink to a meeting of electorH •djumttuSAfA for the pmpose
of promoting the elec*^ion.
On appeal the Court, without expressing any opiiitoii a* in the tieai;ing,
held, on the eviileuee, that F. was not an agent of th ; respondent at
tli(! time of the alleged treating.
( (ne W. , a voter, who was in arreai's to the Crown tor the purehasc
moni!y of a lot of land, was canvassed by B.. an all<rged agent of tiif
respondent, who tolil him that the (iovernment woiilrl IfKfk sharply
aftei' those in arrears for theii' land who did not vote for the sii|)-
porters of the (iovernment.
187.x] NORTH ONTAUIO. JiOo
//./(/ (reversing WHmoii, ,}.), tliat wlwit occurred was ii hrn/uiii /nhixn,
or an expressiun of opinion upon a subject on whicii every one was com-
petent to form an opinion.
Acts of agency and tiie decisions bearing thereon, discussed.
A cliivrge of Ijribery against tiie respondent, where the evidence wa.s un-
satisfactory and I'opugnantin itself, and rested more on suspicion than
(jii dear positive proof, was liehl not proven.
Oui- M. was a mendier of a townsliip committee, organized by direction of
tlic convention which nominateil the responilent, and tlie wcji'iv of tlie
ilfction was put into tiie hands of tliese township connnittees. M . can-
vassed his school section, and had a voters" list, which was taken from
iiiiii by the committee on the allegation that he was not doing much.
Tlie respondent never asked M. to work for him, but M. asked the
respondent what success he had. The respondeat had no one acting
fcir liiii) except these committees and some volunteers, and lit never
objected to tiie aid they were giving him, nor did iie repudiate their
services.
//.A/, on the evidence, that the ri^spondent was responsilde for these
coiiiiiiittees, and that M., as a member of one of such committees, was
an agent of the respondent.
Onf II., a voter, held a claim against the res|)(mdeiit. and M. above
named, and another, for live years, which he had been endeavoring to
piiiciiie payment of. When canvassed at the time of the election, he
stated that if lie diil not get it settled he would not vote for the re-
s|ioiideiit. .M. induced the resjxindent to give his promissoiy note to
II. for the debt, but did not give the respondent to understand directly
or indirectly that the note luitl anything to do with the election.
//■/'/, I. That it is always open to impure, under statutes similar to the
KKction .\cts, whether the d(!bt was paid in accordance witii the legal
(,liligation to pay it, or in order to induce the voter to vote or refrain
fiiMii voting.
'J. (atliniiing ]\'il.-<nn, .1..) That on the evidence, the motive which induced
.\1. was tliat of procuring the voter H. to vote at the election, ami that
tluri'by an act of bribery was committed hy M. as such agent, which
avoiilcd the election.
Ill penal statutes ([iiestions of doubt are to be construed favoralily to the
accused, and where tlie court of first instance in a quasi criminal trial
has aei|iiitted the respondent, the appellate court will not reveise his
limHiig.
Tlu' petition coutaiiii'd tlir usual cliari^'t's df cori'Upt
piactic'cs.
.Ifr. /fccfof Cdnbron, Q.C., and Mr. N. /•'. Pofcrsmi for
[iftitiomT.
.1//'. liiiih/ins, Q.C., for I'espoiKk'Ut.
The ovidence is fully set out in the judnincut.
W ibsoN, J. — Tlio petition cliaru'ed the eoiiiuiission of
coiiupt practices hy the respondent himself, and l»y him
throu>fh 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. au<l if the act lie did is a_y;aiust tht' (il<t
scctiou of the Election l^aw of l.S(iS, there will lia\'e to \,r
trcatiue' found to have lieeu practised of ;i nature sutli-
cient to a\'oid the election. Did he tlien provide ilrink or
other entei'taiinnent at his expense "to any nieciiuM' of
electors assenihled for the purpose of pnjuiotiui;' such
election," at the time in (|Uestioii f
The facts Wert' that tlie respoiment had calleil a puliljc
meetinn' at Biruey's tavern, on Xew Yeai'"s Eve ; tlieiv
was a lar!j;e attcmdance ; l)oth candidates were tliere, aiiij
many of their supporters. After a few [»ersons had spoken.
Foley took the platform to explain the facts relatiii::' to
some local matter, which he conceived had lieeii spriicl
altout to his pi'ejudicc. He was called upon to name the
person to whom iie ahudeil : he did so. The lie was
exchang'ed lietweeu them, and the whole meetiuL;' u'tit iiji.
Mr. Paterson (a su[)porter of the opposing- candidate.
McC'rae, and the solicitor for the jtetitioiier) applieil to
David M. Card, the princi[)al a^cnt of the respondi'nt, if
it woul'l not l)e better to close the meetiuLi,'. ('ard sai<l lie
thought not, and the ]>ec)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 <fo lioiiio. LitpiDr was
liroii^htoii; I <li<l not pay for it. M\: Patrrson, Dr. Fail-
(wIiD was the person naiiit-il liy Mr. Foley), ami others,
sai'l it was a good tlung I was there, for it' I had not
lieeii there some of tlieui wonld have been out of tho
window, Some of them were awfully frighteneij. I
tlioUL^lit it was a reu,'ular ///''", and a Donnylo'ook. Wiien
I lii'Liati s[)eakini;" the row t'ease(|. 1 was there an hour
()!• ^o. and when 1 came away half of tlie peojile had <4one
otf. What i <lid i[uieted the disturhaiu'e ; if I had not
iloiie wjiat I did, there would have heeii a lireaeh of [)eace.
r iin sure MeRae drank thei-e ; he went up to the War to
.jriiik ; I neve)' ''as aski' I to pay for the driid< "' — tlie
meeting lia\'inij;' heell lirokell up, and the people heiu^;-
aliout thei'e in the e.^ccited condition spoken of. The part
wliich Foley took iu it ho stated as follows:
"Tiler.' was a disturltance that ni^'ht at tlu' mei'tin;.;".
Due of Mr. Mediae's friends prcjposed tliat he ami I
slmiild join in a treat of all hands. [ i-efused : 1 said if I
treati'il 1 would ti'i'at all hands, I did so. There may have
lieeii altout-"}il or 40 [)i'rsons. I treated all alike — Paxton's
and Mtdlae's fi-ieiids all alike, [lie j)aid for an oyster
supper then which he ha<l with a few fi'iemls.] i paiil ^+
that ui^-ht foi'sapji(>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/(lrrt<Jicld case (14 L. T.
N. S. ■'^4.')). And I need scarcely say that the connuittue
did not hesitate to ])ronounce that the treating upon that
occasion was not an act which was contrary to the statute.
I have no doubt of that; I only regret that I am obliged
to explain so fully the I'easons which led me to form the
opinions I came to in these election ca.ses.
The thii'(l chai-ge is the alleged act of intimidation by
Donald Bruce, who is alleged to have been the authorized
agent of the respondent, towards George Whareii.
Wharen said Bruce called on him thi-ee times about
voting; the; tii'st time alxnit a week ])efoi'e the polling
day. the second time about thiee days before it, and the
third time upon that day. He said on the first visit that
McRae was no go(jd ; Paxton would do the most for poor
])eo[)le. On the last visit he aske<l Wharen if he had
made up his mind who he was going to vote for. " I said.
not for Paxton. He said if 1 did not o-o down and vote
for Paxton I had better stay at home. I said 1 did
not know that. He said if there were favors I wanted
from the Government Mr. Paxton was the one to get them
for me, as he had a great dt;al of inliuence in the Crown
Land office. I saiil I would not vote for Paxton ; if I
voted I would vote for McRae. He said to me I would
have to look out, for those Avho don't vote for the sup-
porters of the Government, and are in arrears for their
1.S7.).]
NOUTH ONTARIO.
309
laml, the Government will look sluii'p after thein, and they
will very likely lose their land. I said I would go down
and vote for McRae just for that speech."
In oi'oss-exaniination he said, " 1 could not say wliether
tl,c (lovcrnnient would injure me for my vote ; at that
tinu' I had douhts ahout it, based upon the newspapers.
I know no one in my position injured hy the Government
fdi' his vot(\ I should not think Paxton nor any man
wonM injure me ahout the vote. I have no doubt one
way or the other about what was said, but I was vexed
at it. ... I suppose what Mr. Bruce said was what
lie called g'ivinL!; good advice to people; he speaks rather
liastv sometimes. The words hardly sounded like advice
in my mind. I dout know what they sounded like to
him." In the examination he said he then lived on a
(Viiwn lot, and there were arrears due upon it. His wife
coniirmed her husbands statement of the conver.sation.
Donald Bruce said as to Whai-en : " I canvassed his
vote eight or ten days before polling, and also on the
luoi-ning of polling ; the first time he had not maile up his
mind. On the morning of the polling he said he was
ifoing to vote for ^[cRae. I said he might vote as he
liked, hut I thought he should vote for a man who sup-
liiirted the (Jovei'iiment wlieu he was in ari'ears for his
land. I did not say the Govei'ument would watch him,
nor that the Government would come down on him. I
ilid not threaten him. I advised him only it was better
to suppoi't a man who supp(^rted the Govei-nment."
I am disposed to thiidc, and the conclusion I may say
I have come to is, that Mr. Bruce, who said " I always
work in elections," saitl what is .said by Wharen and his
wife. The evidence of the wife was very convincing; for
although .she .said no more than lier husband said, hei-
maimer assured me she was narrating an actual occur-
ri'nce, and just precisely as it had taken place. The Inis-
liaud's evidence was given also very sati.^factorily in every
way ; but I refer to the wife's manner as a witness, be-
cause it was especially calculated to induce a belief in the
■f^^-'i
• *ll
310
PROVINCIAL ELECTIONS.
[A.n.
i Hi ■■ ■■
correctness ami simplicity of her story. The facts must
have 1k'(M1 impressed upon her attention, hecanse she saiij
"I was alarmetl at Hrst ahout the woi-ds." I do not say
I dishelieve Ml'. Bi'uee. l)Ut as a partisan lu- may, as
he seems to liave taken n'reat ])ains to secure this vitti-,
Imve .said mon; than he intended to have suid, or than
he thought he had said, and that which may not liavc
impres.sed liim as anything- very unusual oi- very sfiimis
— as \h' was not a dehtor to the C'rown for the land hr
lived ujjon, and was a stron<;" political suitpoiter of tlir
candidate lu; favored — may have o[)erated, and undouKt-
edlv did operate, verv <lirtei'entlv ui)on this voter and liis
wife, who were not ^'reatly taken up with politics, ami
whose land had not heen paiil foi- when,,accordiiiL;' to
Bruce's own account, the husband was reminded of tln'
fact, and was told how he min'ht he affected in such a case
if he gave his vote in a different way from the way in
which Hruce wanted him to vote.
r tluidc that Bruce supposed his I'eference to the situ-
ation of this voter would have some effect iipon him, aiul
that he intended it to have the effect of getting liiiii t<i
vote for Paxton.
The I'eference to the go\ernment power, and positional
a creditor, was a most improper act on the part of Mr.
Bruce, who is an intelligent, wealthy man of good social
standing, and of good rei)utation in his neighhorhood. au'l
was one calculated to alarm a plain man like Wharen,
especially as Wharen intimated rathei' than fully ex-
pressed he had ^i}en a great deal in the newspa])ers of
persons having influence with the Government giving tli''
Crown Land del)tors great trouble by procuring valu-
ations and re-valuations to l)e made of their lands, aiil
.showing favor to them who supported the Governnicnt
candi<late, and dijaling harshly with those who opposnl
the Government. It may be that all these are scamlals,
and we would nmch rather Ijelieve them so ; for anythinu"
impeaching the good faith and justice of the Crown to all
alike, without regard to creed or polities, or color or caste.
IN?.').]
NOKTII ONTAIUO.
:U1
is icpii^naiit to I'vciy iicjtion we have evt'i- Itt'lusvtvl to ho
the |»riiici[»I(' and only rule of action of oui' (Jovcnniirnt.
Kiii'liiin' tlic fact of intimitlation toliavc ])wn \)nxvt'isvd
liy Mf. HiiU-v U[)on )!• ag'ainst (Ji'ori;'*' Whafeii in onk-r to
iiiiluci' or conipi'l liini to vote for Mr. Paxton, or to rcfiain
fiMiii voting' for McRac, the law dcclai-L's that sucli actsliall
Kr (Irciiifd unduf intlucncf and a corrupt pi-acticc, suh-
jrctiiiL;' the person n-uilty of it to a penalty, and avoiding
till' election if the act can ho cliarged pi'rsonally a^-ainst
till' successful candidate, or upon his <hily authorized
iiLifUt. The (piestion then is, was Mi'. Bruce the duly
constituted authoi'i/ed agent of Mi'. Paxton, .so as to make
liiiii lialile for this act of Mr, Bruce.
The facts, as ai»plicahle to tins part of tin; case, are : Mr.
Bruce lived in Beaverton ; he worked for ^[r. Paxton.
During the election he was at the Refoi'iu convention as
a spectator. Whei\ he was there he was appointeil a
(Irjcgate for llama, as none of the llama delegates were
present.
Mr. Paxton was at the meeting, and he was then nomi-
nated a candidate. He continued, " It is likely I spoke to
Paxton ; I ilid nototi'er to sui)[)ort him ; it is likely he ex-
pi'Ctcd I woulil support him. 1 always work in elections ;
1 was not on any connnittee ; I attendeil counnittee nietst-
iiiU's, ... I saw Paxton during the canvass. He knew
1 was woi'king for the cause, and I was a strong supportei-
nf his, anil that I was working foi' him ton. Paxton did not
a; tend the connnittee meetings in Thorah; I don't know
that he knew of sucli a connnittee. At the counnittees
incn are appointed to canvass; I was not so appointed;
1 did what I could. I nu,de no report of what 1 was
doing to the connnittee. Paxton did not ask me, to my
knowledge, lanv people were going to vote. I may liave
s])oken to Paxton twice (hiring the election. 1 was at the
meeting of Pa.xton's at Birney's hotel."
In cross-examination: " I was not appointed hy any com-
iiiittee, 01" l»y any party to work at the election." What-
c
I
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III
:n2
PHOVINCIAL ELECTIONS.
[A.n.
over I (lid I V(jluntt'L'rc(l, and did of iiiv own <r"od will. \
ncvci' canvassed with Paxton."
Ilc-t'xaiiiincd : " At Bfeeliin. Paxton told nie not to do
anything' to avoid the election. Some jiersons were v/ant-
inff money from him to treat ; he wonld not ;.,dve it. Mr
said he ilid not want anythinj.; done l>y 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 <lo atiythiiij;' to ha/ai<l the rlcctioii. Mr-.
I'iixton was ])r('scMt at the t'onvcjition, ami sjtokc shortly
ill it. 1 ilou't think I'axton took part in fonninLf coin-
Miittrcs (»(■ in attf-ndiiiLC them, there was so little time.
The formation of eonmiittees was sj)oken of at the
coiivetition. It was urged npon the delegates to see that
their suli-c'onnnittees were {)Ut into proper working or<ler.
The work of the election was {)ut into the hands of the
t( wnship eonnnittees. I oidy knew of the forntati<jn of
tlic I'iM't Perry eouniiittee : Mr. Bigelow, I sn{)pose, or-
ganized it. We hear<l there were other eonunitti'es." The
evidence shows positively theiv were eonnnittees in the
icsjiondent's interest in Mara, Thoi'ah, Reach, Fort Perry,
iui'l, as Daviil M. Card thinks, in U.xhridge also ; there
may have heeii committees formed in his interest in other
places, liut it was not shown hy exidence there were.
Keeping in view that the incpiiry is as to the agency of
Doiialil Brnce, it is to he considei'e(l what facts are relied
itn hy the petitionei' to show that agency. Mrnce was
a delet^ate, named at the convention which nt)minated Mr.
Paxton as a candidate in the lleform interest, on which
side Bi'uce takes an active interest. He can\'assed in this
election to some extent, ami particularly the elector
(leoi'ge Wharen, on hehalf of Paxton. He was a zealous
assistant, and, as he said, he always works in elections.
He was not. howevei', appointe<l by the committee to
woi-k, and he did not rep(jrt to the conunittee what he
did. He attended at two, at least, of the comnnttee
ii>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<l he says he acted through-
out as a mere volunteer. He attended one or more of
i;
ii\
f 1
■h
■n
? : : 4
I
:{|4.
IMIOVINCIAI, KI.KCTIONS.
[A.D.
l*!i\to!i's |)ulilic iiii'rtiiins. Mr was told with scvt'i-jvl
utlicrs, Ity I'liNtoii lit Hiccliiii, iKtL to do imytliiiin' tojivdiil
tlif <■!( ■,'tioii.
'riirii iis to tlif ('()iiiinitttM'.s. Mr. I'uxtoii was iioiiiiiiatcil
liy the llct'oi'in (JoiiV('iiti(»ii at which he was ]iirsciit.
It was tht-rr iiK'iitioMrd that, in roniiiii;^" tht'sr siili-
coiiiiiiittci's, they shouiil !•(' careful to sec the eltctioii was
cari'ie<l on properly. The dele;^ates were ur^'eil to put
these siili-coinniittces into proper woiUini;" order. The
woi'U of the elei^tioM was put into the hands of the town-
ship coniniittees. 'I'here was a Itranch of tlie association
in Thorah, and a s|)ccial coniniittee was appointed in
Thoi'ah for eh'ction |)urposes. That coiMmittee was said
to he a vohiutary association of the reformers tlicre for
their own purposes. And there wcrt' various other cmn-
niittees in the riding in the res])oiident's interest: tlie
one at Port Perry heini;' presided over hy the I'csponiieiit's
partner, .Mr. Bie(dow, and at which Mr. Card, the I'cspoiid-
ent's general a^cnt, was pi'eseiit on one occasion, and it is
at Port Pci'ry whei-e the respondent I'csides. The ipicstioii
of a<jjency depends u[)on the thice intiuiries :
1. Was Donald Bruce an ae'cnt of the respondent, hy
autliority direct or Iniplieil, for the respondent himself'
If he were not, tlien
'2. Was the Thorali connnittei' a hody for whose acts
the I'l'Sj.ondent is i'es[)onsil)]e { If it were, then
•S. Was Bruce appt)inte<l hy, or acting undci" the author-
ity of the connnittee :'
All the cases sh(jw, and common sense re([uires, that
authority from the alleged [)rincipal, the candidate, iiuist
he .shown creating or sanctioning a person to he his agent
heforc the candidate can he made responsihle for the acts
of sucli person.
Tlie authority need not he i^\pressly conferred.- It may
he infi'ri'ed to liave been given hy various acts of the
alleged agents in the interest of the candidates under
certain circumstances, and it is the circumstance which
gives rise to all the ditliculty of determining whether
t :
IS?:..]
NoHTII oNTMtlo.
:n:.
tlicv ;in' "»!' '"Ill' imt sutliciciit to raisr ii jii^t |ii'csuiiiiit ion
that the cainliWatf liiis iccuLjiii/nl un<l iii|ii|)ti'<l the acts
(if till' |M'rsoii assiiiniiin' to i'i'|ii'i'si'iit him.
A lai'i,'!' allnwaiicf is ainl iniisl lie maili- for tin- sfi'siccs
dt' tViciiiIs ami voluiitrcis who arc actiiii;' t'm' the saki- of
till' caii.M' svhicli the caiididutt' i't'|ii't'st'iits, uinl without
aiiv inctt'iu f authority tVoiu, of any ii unitioii liy
him, for, or of the jM-rforuianct' of these services.
The caiidiihite may know his friends and otiiers jire
\viirl\inu for him, and yet it is not ch'ar lie is answerahh-
f(ir what they <h), ahhoun'h he (h)es not in every case re-
|i\idiate tlu'ir acts and ser\ices.
I shall ret'el' to some of the decisions upon the suhject.
Thrv are tln' ojiinioHs of uhle, disintere.steil men, and I
think it will a|i]ieai' on a peiMisal of them, that while ad-
iiiiiiisteritiju" the law in so ditlicult and delicati' a hranch
of it with the iiio.st perfect im|iartiality, there is a ^■ell^ral
desire e.xhihiteil not to press t he iaw mol'e se\'erely than
thi'V all' compelled to do, to re(|uire stroui;' proofs of the
alleLjcd illei^^al acts, to Lfive the henetit of all icasonahle
infii'euces in douhtful cases tt) the persons charged, to
make allowances t'oi- the acts ami saying's of people dui'inn'
such excitiiiLj times, hy not puttinj^- the harshest con-
struction upon them, to reipiire full and fair pi'onf of
agency liefoi'c aceeptinn' it as estahlisjied, to allow much
lalitU(le foi- the zeal of sn])iiorters of the candidate, with-
out holdinn- him to he answeralile foi- their conduct, al-
thou,i,di he is netting the henetit of theii' ser\ices. and
Li'i'nerally to uphold the election if it can propei'ly he
iloUe.
< )ue who visited voters, and made a|)]»ointnients i'oi'
them to see the candidate, and who afterwai'ds introduced
them to the candidate, was held to he an a'^ent. Jlnrdh if
'"^' (I!) L T. N. S. (J7(;). In the .same case (1 ()"M. vV H.
17). Blackliurn, J., .said : '' Every instance in which it is
shown tl it, cither with the knowledne of the memlier or
fauilidatc him.sclf, or to tlic knowledu'c of his au'ents wlio
liad employment fi'om him, a person actin;.^' at all in fur-
Ij
H^
! f
316
PROVINCIAL ELECTIONS.
[A.D.
'li«
m
- ^1
thorinLC the election for hiiii in trying to get votes i'or liim
is evitlence ten<ling to show that the person so acting was
authorized to act as his agent."
One wlio is on a connnittee, wlio attended its meetings,
wlio canvassed, and wliose canvassing was recognizeil,
is deemed an agent. fVcstbiori/ case (20 L. T. N. S. I(i).
Asking an employer of workmen for Lis vote and interest
may mean, " (lo rouml and canvass your workmen fur
me," and may create an agency (s. c, 1 O'M. tSr H. 47).
A supporter of the canihdate gave a feast to his friends
on the polling d?i,y. Mo twice canvassed with the candi-
• late; he had a list of the voters on Lanivet, given hy an
agent of the candidate, altliough given to him only nn
great pressure ; he l)rought people to the polls ; he had no
canvass hook. Held, these facts were evidence of agency.
JJo<haln r„sr (20 L. T. N. S. ys!>).
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. <iti): Hrrrford msc (21 L. T. N. S. 117).
A nieie volunteer cainiot hui't the candidate. Mellor.
.1.. sai'l: "You nnist show me various things. Wwx
must sliow me he was in company with one of the pi'iii-
(•il)al agents, who saw him canvassing, or was pi'escnt
when hi' was canvassing, or that in tlu' comnuttee room
he was in the presence of somebody oi' other acting as a
inaii would do who was authorized to act. In putting all
thest' thinii's toovthei', vou satistied me that the man was
a canvassi'r with the authority of the candiilate's agent ;
then I do not look with nicety at the jirecise steps, liut
r'.at must be something of that character.' Ihilinn cuxe
(2 O'M. k H. 13S).
In the Londonderrn case (21 L. T. N. S. V'OO), P. was
appointed by the Liberal RcLristi-ation Society to conduct
the business of tiie revision, which shortly pi'eceded the
election. The candidate .subscribed liberally to the funds
JH
< I I
I
■i'
TTTW^
l^^'W
.;1
i 'i
VTW
i
i. y
T
1 ,; ■ i
^■i
318
PROVINCIAL ELECTIOXK,
[a.d.
of the society, and appT(n'ed of P.'s appointiiient. The
start" of the society, witli P. at its li<-a'L \va>> afterwards
used ill ])Vom()tiiig tlie election. The cominittee of the
society directed in a <fi"eat measure the ineftin^f of tla'
electors, and the candidate on (jue occa-sion connnunicated
directly with P. by letter with referenc*.* to he election.
Held, P. was an agent of the candidate?.
In the same case (1 O'M. k H. 274>, 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 <li'termineil
ill that way whether the relation between the pei'sun
guilty of the corrupt practice and the meml»er was sucli
as to make the lattei- fairly I'csponsible for it."' " But in
such a ca.se, where I am convinced that they were buadjldr
vohmteei's acting for them.selves, not selected V)y tlie
member nor chosen ))y him at all, but really liond Jhlr,
and ill a l)usine.s.s-like mannei-, the voters of the district
chousing sober ami res[)i^ctable men in whom they ha<l
contidence, to l)e the head of theii- own department, and
acting together, a nnissenger who was sent bv one of them
is not so directly connected with the camliilate, or any of
his recogni/ed ag^-nts, as to make him respousilde for the
misconduct in offering a bril)e."
In the Wcstminsfcr cttsi'- (20 L T. X. S. 2:iS), an associ-
ation was forme<l with the view of supporting ci-rtain
political principles. A candidate .subscrilcMl to the asso-
ciation, and had been its ])i'esident, but resigneil before
his candidature connnenced. Ke was selected as the can-
didate to be suppoi'ted by the association, and thereu))on
many mend)ers of tlie association canvassed for him.
These canvas.sers acted independently of the candidatt' s
canvassers, and uncontrolled liy his committee. The can-
didate's canvass agent, by re(|uest of the .secretary of the
association, furnished him with copies of the canvassing
hooks. And it was held by Martin, B., that the members
i i-'i
i ' VTT'
jn
320
PROVINCIAL ELECTIONS.
[A.D.
) I
of tlie association, canvassing voluntarily as al)ove de-
scribed, under the association though on heliait' of the
candidate, were not agents of the latter.
In the Blaelchurii case, (20 L. T. N. S. 828, 1 O'M. & H.
198), a circular was issued by a Tory meeting; the circular
was signed by persons, some of them connected M'ith the
Registration S(jciety for the Tory candidate, or by persons
upon the election connnittee, and also by the respondents
son. The election generally on that side was conducted
in accordance with the circular, and Mr. Justice WiJles
held the cii'cular had been adopted by the sitting uienilHjr,
and that the association which issued it was adjpted also
in vdew of a connnittee for the management of the election,
and made every person mentioned in the ciicular agent
foi" the candidate. Dahlin ctific, (1 O'M. & H. 270).
In the Wakefield case (2 O'M. & H. 102), Mr. Justice
Orove said: "It was pi'oved that the respondent was
vice-president of a ceitain society, that he spoke at meet-
ings of it ; that many members of it were active parti/ans
of his, and were actively canvassing for him. That tbere
were certain rooms belonging to the society, which might,
in one sense, be calle<l committee-rooms, but which were
not so in the old sense of being occupied by a certain
fixed connnittee. These rooms were placarded with the
respondent's name, and at them l)usiness connected with
the election was transacted. These facts would pr'um
faelc bring the case within the law of agency, and would
be sufficient to satisfy a ti'il)unal that the respondent had
puthim.self, or allowed himself to be in the hands of cer-
tain persons, or had made common cause with theni, so
as to :nake liini liable if they, for the ])urpose of pro-
moting his election, conunitted acts of Ijribery."
In the Shremhura case (2 O'M. & H. 80), Channell, B.,
said : " There may be a central connnittee ; placards may
be issued from it in the course of the election, signed,
not by the candidate, but by some person representing
him. These are acts which go beyond the mere act of
canvassnig.
1S75.]
NORTH ONTARIO.
321
In the Lime/rich am: (1 O'M. k H. 262), Mr. Baron
Fitzgerald said : " If tlie clergy make the cause of the
candidate their own, and give him the benefit of having
wjiat may lie e([uivalent, in its eflect upon the election,
to a committee-room conducted l)y themselves in every
jxirish, they being the canvassei's ; and if it then turns out
!it the time of the election that the candidate represents his
cause as identical with that of the clei-gy, an<l publicly
H'ives out that the (juestion between him and his adver-
saries is whethei the clergy shall be put down or raist'd
u]), and is accompanied by them through the streets can-
vassing; if that be so — although the particular clergyman
of the parish be not the party who accompanied the can-
didate in canvassint; — I, for my part, will doubt lonu'
lii'fuio I say the can<lidate is not, as far as his seating in
Parliament is concei-ned, responsible for the acts of those
parties in their several districts or parishes."
In the Tnuntoii case (21 L. T. N. S. 1()9) there existed
ill the town a Conservative and a Liberal A.ssociation,
each of which generally promoted the return of its own
candidate, and assisted the registi-ation of its owii .sup-
porters. The managers of the Conservative A.ssociation
having circulated addre.sses and papers i.s.sued by the can-
didate, will be presumed to have <lone .so with his know-
IimIlic, or with that of his ay'ents, so as to constitute the
association agents of such candidate, and to make him
responsible for any illegal acts of its managers. Black -
liurii, .1., said : " We have it that the body are acting as
canvassers for Mr. Cox — actively acting in j)romoting the
election ; and that fact, I thiid\, we must fairly take it
was known to him and his people. Now, does that, with-
out any more, raise a prima farir eas(^ which woidd call
for an answt'i' ? I think it does. 1 tliiidv when it a{)pears
that things are done openly in that M'ay, which in the
ordinary course of things would not be done except with
the coy;nizance of a candidate who sanctioned them, the
fair and natural inference, in the absence of proof to the
contrary, would be that they were done by a person acting
t \
V^l
i."
'tm
322
iniOVIXCIAL ELECTIONS.
[A.D.
as agent for tlio candidate. I am very far from thinkin^r
tliat tliat evitlence would l)e conclusive. I think it \\;is
quite open to Mr. Co.\ himself, and his agent, to have hwii
called to show that they had no communication with that
body; that they repudiated it ; and if that repudiation
were bond fide, they woul<l not dertainly l>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 can<hdate
knows that material services are being i'enderi'(l t'or him,
he mast disclaim them arid the persons i^'ivinjf them, it' he
wishes to bo free from the couse(|uences of their proceed-
iiitfs.
And both cases were deci<hid by thi; samci aV)le Jud<,a',
Mr. Justice Blackburn.
The Linwrivk cnHc (excepting* in an imjioi'tant particular,
certainly, the fact of the candidati^ canvassing with the
clergy) agrees in one I'espect with the Tauntan ra/tc, last'
ret'erre<l to, that the candidatt; identifying his cause with
the clergy, and taking the benefit of their siu'vices, is.
hound by their acts.
It appears to me also tliat the JVesfniiister niMr, deci(h'd
by Mr. Baron ^[artin, is not in accoi-dance witli tlie Bhick-
hiini ni^r, decided l)y Mr. Justice Willes, and the Wdhrfield
cn^i\ decided by Mr. .Tustii ■• (irove.
I cannot do l»ettei-, after reading most of the law on the
subject, than accept as my principal guide as to what will
constitute agency, the rules of Mi". Justice Grove in the
Tmi/ifdii ci(>ic, 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'minin<x whether
the acts of Donald Bruce, under the facts detaile<l, made
him the agent of the respcmdent, oi* maile the Thorah
committee thci agents of the respondent, and Donald Bruce
tli(,' agent of the committee. The Bcwdli'i/ case (1 O'M. &
H. 17) may also l)e relied upon, and .some of the othera
before given.
22
} i'i
324
PROVINCIAL ELECTIONS.
[a.d.
Lookinjr at the facts before meiitione<l, relatin<; to tin;
conduct of Donald Bruce, can he be hehl to have been the
a<,fent of the respondent within the effect and operation
of tlu! hiw, so as to subjiict the respondent to the coii-
seipienci'S (^f Brucc's act, in liis dealing with (Icorge
Wharen as to his vote :* 1 am disposed to think that Jinicc
must be considered to have been such agent, judgcil liy
his conduct l)efon' stated, and the knowledge the re-
spondent had of his services in promoting the election.
The respondent, according to the evidence, had no per-
sons or bodies of persoTis acting for him in canvussinn;,
securing, and bringing up voters, excfjpting these ckiii-
mittees, and those pi'ivate fi'iends who are called volun-
teers. The whole management of the election was in tlitii'
hands. The respondent was receiving, and knew he was
receivinjf the active aid of Mi-. Bi-uce and others like him.
He never objected to the aid they were giving him. He
did not repudiate it, nor tell them they were acting oHi-
ciouslv, and busving them.selves when thev were not
wanted. He knew there was a risk in what they were
doing, becau.se he cautioned them as to their conduct; and
I do not know how else to deal with Mi'. Bruce than to
hold him as an authorized and competent agent of tlic
respondent, to l)ind him by what he did in and about the
respondent's business.
If Mr. Bruce had been acting zealously in the private
aff'aii's of the respondent, as for instance in calling upi>n
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 boun<l to
give creilit to his debtors for the money which they had
paid on his account for Mr. Bj'uce.
The act of Mr. Bruce with res]>ect 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, an<l of the
others also of which Mr. Card had knowledj^e And I must
assume fi'om the above facts, relating to what was said at
the convention as to the formation of these conunittees,
and that they were to have the general management of
the election, that he knew also of the organization of the
Tliorah township connnittee, which is the one with which
Mr. Bruce is said to have been connected.
The like rules and principles upon which I have lieen
obliged t(j hold Mr. Bruce to have been the agent of the
respondent, ecpially oblige me to hold that the Thorah
coiamittee were the duly authorized agents of the respond-
ent. Holding that as pnjved, was Mr. Bruce also the agent
of tlie committee?
1 Jim not fully satisfied he was. He was not a member.
Mr was not deputeil by them to do anything. It is not
sliown that they knew what he was doing. He never
reported to them. His attendance there twice niay have
been merely to talk over matters, and to give them such
infi)i'iuatii)n as he was possessed of. These circumstances
will n(jt warrant any act of delegation of powers liy them
to him, nor (jf any acceptance of his acts by them.
In the SoiiJli Ontario case {post), I came to a ditlerent
conclusion with respect to this ([uestion of agency of the
Oshawa committee. I gave too much ettect to the services
of conimittees, and of the members of them, and of others
acting for the candidate, and to his knowledge, .ami ap-
parently with his consent and approval, by holding them
to be volunteers, and by exempting the candidate from
accountability for the acts of such bodies and of such
jtersons. I have since reconsidered the opinion I gave in
that case, and I think the first impression I had on it, that
326
PROVINCIAL ELECTIONS.
[A.I.
the respondent was an.swernl)le for sotne of the p'jts for
which I held him not re.sponsihhs was the correct one,
and the one [ should have a<h)pted as my judgment. [
expres.sed the opinion which I dcliviMvd, as I then iiii'ii-
tioned, with nuich douht, and I stated als(j that I should \n;
glad to have tlie deci.sion reviewed by the full Court, and
1 am glad it has been put in a course for reconsidei-ation.
The doubt on the .subject which I then felt, I'cMpiiivd
that I should give it in favor of the existing state of
things in support of the election and return, rather than
against them. But I may say if I had judged of tlic
matter then as J do now, I would liave been oljliged to
avoid the election for the giving of li({Uor by Mr. Thomas
at Hallett's tavern to voters dui-ing polling hours, contiaiv
to the ()(jth section (^f the Election Law of lS(iS. Althoui^'li
it was not in any manner corruptly given, such is tlir
stringency of the statute. I <lo not say the candidate is
responsilile for all volunteers; but I think lie is if he
knows of their acts in his interest, and he permits theia
to go on Avithout disclaimer.
l£e cannt)t take the benefit of their acts, knowing of
them and accepting of them without repudiation, and
escape the consecpiences resulting from, or coiii ected with
them.
If it was otherwise there might be a dozen committee,s,
and a legion of private friends all canvassing and, it may
be, treating and bril)ing, and by such means .securing the
election of their candidate, and, it may be, their nominee,
and he would hold it, however clearly these practices were
proved, merely because they were all volunteers, and the
candidate had never appointed any of them, or expressly
or openly identified liimself with them, and becau.se it
was said they were fighting for tlie cause, and not for the
candidate who represented it.
In this case it is cpiite manifest the respondent had ni)
organization of any kind but liis public meetings, and it
was notorious the whole business of the election was per-
mitted to be in the hands of the branch Reform Associ-
isir..]
NORTH ONTARIO.
327
atioiis aiul tlie townsliip coiniiiittcu's, an i in thost! of
jirivate persons, of whom Mr. Bruce was, in my opinion,
iuid to tlu^ knowleili^'t' of tho rt'spoixdcnt, certainly one.
1 liml the third charjj^e to he snstaine<l ai;'ainst tho re-
,s[i(iiiilent.
The remaininij,- chai'j^es on personal ;.,'roun(ls are pressed
against the respondent. The first one is the ane,ii;ed
liriliini,^ l»y tlie respondent of Nicliol Leppai'd. [The
1( arneil Judge here reviewed the evidence, wliioli sliowed
that up to the poUinn' day Leppard was liostile to the i-e-
sjjondent on account of some difficulty he had ahout a lot
of lan<l, and then proceeded:]
In every way I look upoii Leppard s evidence as un-
satisfaetoiy and uni'eliahle. It is re[)U<j;-nant in itself, an<l
it is directly contradicted in some I'ospects. I see, hcnv-
ever, the gi'oat fact that Leppard, havinj,' ple<lyed his vote
to MoKae, changed round innnediately upon the convan--
sation with Pa.xton, and that conversation was admittedly
ahout this land, and Leppard's gi'icvance against Paxton.
flow was that change brought alxnit? In my opinion
there is strong reason to believe it was bi-ought about by
Paxton's ]ii'()mise to Leppard to get smother lot for him as
lii'dod as the one he had lost, or to fetch it out all right for
him, and that the change of side from McRae to Paxton —
finm the person he was 2)ledged to support to the pei'son
he was pledged to oppose — was effected by the promise
then made by Paxton. I am not prepared, however, to
find this charge proved against the respondent ; it rests
more on suspicion than on clear positive pi'oof, and the
petitioner might liave giveii mon; testimony "O the sub-
ject by the examination of Mrs. uep])ard ; and as that has
not been done, I do not feel disposed to convict the re-
spondent and to subject him tr such highly penal conse-
(juences, so long as I do not feel assui'ed the o*^!ence has
liec'u proved. Although I may believe the transaction is
surrounded with the greatest suspicions, I am glad to be
able to say that the charge has not been proved against
the respondent.
■J!
1,1
FTTT
:i2H
I'HOVFNriAr, KI-KrTIONS.
[A.n.
Tho last of the nine cliar^ft's, wliicli is the .sccnnrl of tin;
personal cliai'^Lji's, is that tlu^ respondent was ^juilty "t"
ln'iltin;^ Thomas Mope. Hope's eviilenet! was as follows;
"I live on Scu^^foi,^ Island. I was a tenant " ''axton's
foi- twelve or fonrtee.i years; live on the sj ,ot yet.
Paxton is not now my landlord. I had an nnsettlnl
aceonnt with Paxton hefore the last election. It was for
wheat I had sold to Marsh and Pronnce while they ran
Paxton's mill. They ai'e Itrinj^in^^ np a claim for rent siiuv
the election. 1 tried lots of times hefore tlie election to m't
a settlement for the wheat. I claim tliere is mom^y due
to me. I a[)plied to Paxton ami to Marsh and TrouncL',
Paxton always ,sai<l lie would settle. Ti-imnee said they
liad paid it to Paxton. Marsh said he would see and i;et
it settled.
"1 told Marsh I would not vote for Paxton 'uless that
account was settled, and he said he would ti 'd jret it
settled. I never talked to Paxton of it al... >iU! 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 <iiil
not ui't tlio thiii^ st'ttlfil liy the MDndiiy inornin;;, I wouM
sw hiiii on tlic MDiidav niornin;,^ I sfi'nl if I did not <ft't
itst'ttlt'd I would not vote t"(.r I'axton. I spoke to Marsh
iihout not votinLj foe l*axton ahoiit a Wfck lu't'orc tl.t;
|MilliiiL!,' day. 'I'liat conversation was iti Tom Walker's
tavern at Port I^Tiy. I don't know tliat I tsver said I
would sue Marsh for the claiiii. I did not know wliefe
to collet't iny claim. I threatene(l of course to sue thi;
claim at ditrereiit times. I thieateiied 'I'rounce to .su(,' it.
To the hest of my knowledge I nescr threat.'iieil to sue
Marsh. 1 did not threaten Marsh at Walker's hotel to
sue him that niyht if I did not ;^'et the money or a note,
iinr to sue him on Mondav aftei- if 1 did not "fet it settled,
oi' a note for it hy Monday. There wei'e (|uite a few in
tlu^ tavern at tlu; time Marsl. and I were conversini;-.
Mr. Shaw was there, .so was lleuhen King, 1 thiid; also
.huiii's (Jrove. Marsh did not say, that I recollect, when
I .said I would not vote for Paxton, that I nnist not sj)eak
of the election in connection vvitli that matter, nor did he
.say, that I recollect, that the election would have nothing
to ilo with that claim. Marsh said F need not he afraid
hut I would get my |)ay. 1 don't know that Maish said
anything to mc ahout the election. I ditl to him."
lie was shortly aftoi' i-ecalled. He said, '' 1 look at
the note; can't road it; believe it to he tin- one."
Cro.ss-examination: "I know .John Phillips; did nut .say
to liim if 1 got 820 I would .say nothing of the matter.
[ ilid not know I had to come liere till last niglit. I did
not thi'tiateii to come down. 1 liad a convei'.sation with
l'hilli[)s ahout giving evidence of the transaction. 'J'hat
was two or three weeks ago. I did not say to him if I got
820 I would not come down and give evidence. I never
talked to Biwlow of this tran.saction: did .soon Saturday
last; he .said if I came down it would he worse for me.
1 did not ""^Y it woiiM l)e woi'se for Paxton it" he did not
settle with nie, for I would come down and hi-eak the
election, or anvthino; to that ettect. 1 <lid not sav to
i. '
I)
n
1 1
II
■ 1
'(]\ i ^•■^ \- ' »?:
n.so
PROVINCIAL ELECTIONS.
[a.d.
■Itlli
Bigelow that if Paxton did not settle it to my .satis-
faction 1 would come down and give evidence. It was
a few minutes after that Mr. Bigelow sent a man to
me with the ott'-set of the rent. The con\'ersation with
Phillips of the .S20 was ahout a wholly different matter."
For the respondent, Charles Marsh was examined. He
said at the conversation at Walker's tavern, spoken of by
Hope, thu latter said to him " if I did not pay the claim ur
give my note he would sue me for it by nine (m Monday
morning. I i-efu.sed to give it; I said he knew it was not
my place to pay it ; if he consented to wait, and did not
put costs on for three or four days, till I could see Paxton,
who .should pav it, I would endeavor to u'et it settled for
Itim. He si, id he wouM not wait; his friends advised him
not to wait; he would have it or he would put me to costs.
He intimated that Paxton had better s(!ttle that claim, for
he might want his help at the election. 1 .said to Hopt; if
the election had anything to do with it, 1 would have
nothing to do with the settling of it. ... I .said if
they would wait till Paxton came home, and I could set;
him, as he was the party to settle it, I would try and
settle it, and if Paxton did not settle, he, Hope, could sue
as soon as he liked. That was the way it was left that
night. I said mo.st distinctly it had nothing to do with
th.e election. In the forepart of the following week I saw
Paxton and told him what Hope had said about jiutting
me to costs in that matter, and I said I wi.shed he would
settle it to .save me from beinj"- sued. I did not tell
Paxton of Hope's remai'k as to voting. Paxton said he
calculated to settle it, and he ^v•ould if he knew the
amount. I said it was .somewhere a1)out i?I10. Paxton
then wrote (-)ut the note and gave it to me for Hopt-.
. . . I did not give Paxton to understand directly 01'
indirectly the note had anything to do with the election."
Cross-examinati(m : "Hope did not say to me he would
not vote for Paxton unless he settled that claim ; he di«l
not say more than that Paxton might want his help about
the election. I did not take the election into consider-
1S7.').]
NORTH ONTARIO.
331
ation at all when the note was giv^n. I went on purpose
t(i see Faxton after the conversation in Walker's; went to
his lumse. ... I am sure nothing then took place
iM'twt'cn me and Paxton of the election in connection with
tlic note. I supported Paxton at election. I was not on
till' committee at Port Perry. 1 Avent in there one night.
1 did some canvassing. I attended two puhlic meetings
in Reach. I think I was on a Reach connnittee. I can-
vassed in my own .school section.. I had a voter's list; one
of the connnittee came for it and took it, and I never saw
it after. He said he though;, I was not doing much, and
lit' wouM give the l)ook to .some one else. Paxton and I
liiairieil sisters. He never asked me to do anything for
liiiii. 1 have asked him what .success he had.
Mr. Shaw was examined. He mentioned a conversation
littweeii Hope and him.self about Hope's claim on the
same day when Hope and Mar.sh, in Shaw's presence, had
the conversation. He supports Mr. Marsh's view generally,
of what was said l)etween Hope and Marsh. So far as it
is iiioditied, it is in the following pa,s,sages of his cro.ss-
(.'xaiiiination :
"I take an interest in all tlie Reform elections. 1 did
not want to .see ^lar.sh put to costs; my whole anxiety
was not to save Mai'sh the costs ; it was partly to save
Hope's vote. My intei'est was equally to save the costs
and to save the vote. ... 1 think Hope .said he would
not vote for Paxton if he did not get the claim settlofl.
King said now was the time to have it .settled, hefori' the
elfition; he .said so to Marsh. King mentioned more
strongly than Hope that he .slu)uld get his pay before the
clfction. . . . Mar.sh told me before the polling day
he had got the note from Mi'. Paxton, for Ho[)e. There
was a committtee at Port Perry for the electi(jn. 1 was
there every night ; took any part that was handy ; I
did ail 1 could; Paxton knew my natui-e ; I would do
all I could: he had known how 1 worke<l ; everybody in
town knew it." He also .said in one part of his examina-
ti(jn in chief, Marsh said "if Hope would wait till after the
^■}t;
•; d
ll
3:32
PROVIXCIAL ELECTIONS.
[a.d.
: ii -a
'Wi'-
; h ' I
?) \i
ilii;
\ Ik
ml:
election, and Paxton were home, he \vou!<l have it .settli d.
King said now was the time to settle it, and not to wait."
John 1). Phillips, the miller of respondent at Port Peiiy,
contradicted Hope very explicitly as to the conversation
about the S20.
Joseph Bigelow, a partner of the re.sfK>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 sai<l I did not care, that it
was a matter of business with me."
On this evidence, from what I liav*? already said about
conunittees, I find the Reach committee- was a body for
whose acts the respondent is liable and that Marsh, who
is also a brother-in-law, svas a meml><i.-r of it, having hinl
a voters' list, and being entrusted by tliat V)ody with the
canvassing of or in his school district, and that he did
canvass.
I find also that Mr. Sliaw must \n: con.sidered to have
been, from his constant atten< lance at the Port Peiiy
connnittee meetings, and of which he \va« verj' probalily
a member, to have been a meinU.T or in the same
positicm as a member of that committee, and that tlie
committee was one at which t]»e resji'mdent's recognized
agent, Mr. Card, M'as jjresent upon one* <^jC'casion, and had
\i-
1875.]
NORTH ONTARIO.
iMV.i
tlu'i't't'ore knowledge of. It was presided over by Mr.
])i<,a'low, tlie partner in business of the respondent. It
was lield in the same place where the i-espondent resided,
and I have no donht he had personal knowledge also of
the existence of that body. 1 tin>l 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 opini<m Hope's main .story is (piite true and
correct; that is, " that he did tell Marsh he would not vote
for Paxton if he did not get the claim settled." He sweais
t(i it positively, and Mr. Shaw expressly contii'ms him.
Marsh denies that .such language was u.sed, but he admits
that while Hope w.as pressing for an immei'.iate settle-
ment, Hope did .say that Paxton nnght want his help at
the election. I think lie .said more than that, and that
Mai'sh heard it, for it was said to himself.
Mr. Shaw also .says that Marsh wanted Hope's claim
to lie over till after the election, Ijut that both Hope and
King .said that "now was the time to have it settle<l,
lict'ore the election."
The meaning of that all parties fully understood, wliieh
WHS that the coming on of the election was tlie pressui'e
put on l)y Hope to have his claim settled, and that the
Dther parties, to get the benefit of Hope's vote, were to re-
move his objection to voting for Paxton before the polling
day.
Shaw .says plainly "my interest was e(|ually to .save
tlie costs and to save the vote," and he was also an agent
of the respondent's, and taking a special pai't in the
arrangement (jf that matter. 1 fin<l that the facts show
ilu- settlement of that demand at that Juncture, and in so
gifat a hurry, with such .special zeal for Hope's interest,
after it had lain over for more than five years, neglected
or resisted by all pai-ties, Paxton, Marsh and Trounce, who
l»ad lieen repeatedly applied toby Hope for payment, was
i tf
'f f If."
334
PROVINCIAL ELECTIONS.
[A.D.
1
i'
;l '
.! I
Vjrought about l)y Marsh and Shaw with tlie desiivn ami
foT- tlio express purpose of securing tlie votes of Hope and
his sons for tlie respondent, and which Marsh and Shaw-
knew could not be ol)tained upon any other terms. Shaw
substantially athiiits that that was his pui'pose and in-
terest. Marsh denies it ; but I cannot take his mere state-
ment as an answer against the evidence of Hop(; and
Shaw, and against the facts of the case, and his own
con<luct. When his con<Uict is not consistent with his
statement in some particulars, and cannot I'easonably be
made so l)y any explanation, I prefer to be governed In'
what he did, and by the time and incidents of his doinc
the act, to discover why it was he did do it.
And viewing the case in that way, and calling in aid
the evidence of Hope and Shaw and the sui'rounding facts
and circumstances, I have no doubt that the ol)iect and
purpose of Marsh in getting that note from the resjjond-
ent at the time it was got, was for the purpose of ))ro-
curing and securing the votes of Hope and his sons for
the lespondent at the election ; find I have no doul)t he
knew that Hope believed the note was being got for the
same purpose, and that if it were so got before the pollinj^
day, that Hope and his sons would and were to vote for
the respondent, but not otherwi.se.
I .should say here tiiat Hope has been contradicted by
Phillips as to what was .said in connection with the 820;
which of them is telling the truth may be a (juestion.
Hope says he was refening to a difi'erent matter than the
settlement of his demand and the claim against him for
the rent, at the time he spoke to Phillips. It may he
Phillips is in that respect more correct in his account of
the conversation than Hope.
Hope also is contradicted l)y Marsh and by Shaw as to
the ^l^i't'ats they say he made at Walker's tavern to
Mar.sh, to sue him if the claims were not settled l)y .some
given time, and which threats he denies. He is also con-
tradicted by Mr. Bigelow, who says that Hope sa'd if his
claims were not settled it would be worse for Paxton, and
1875.]
NORTH ONTARIO.
335
that he would do all he could in the election suit a«fainst
Paxil »n; which statement Hope denies. He .says it was
MiL;el()\v who said to him it' he came down to give evidence
it would lie the wor.se for him.
I do n(jt think the contrailiction by Phillips of Hope,
nor the contradiction by Mar.sh and Shaw of Hop^, in
till' i)artieular referred to, destroy Hope's credibility and
veracity as a witness. There are other causes to which
these contradictions can be a.ssigned than to initruthful-
ues.s of character. Marsh is directly contradicted by Hojjc
junl Shaw in an important matter, and the suiromiaing
tacts contirm thent, yet 1 do not for a moment impute
wilful misstatements to Mr. Marsh.
(■ndoubtedly in cases of contradiction I must be moie
cautious in acce[)ting' as true the statements of a witness
who has been so contradicted, but until I have lost all
faith in him, I must not disbelieve him altogether.
1 have so dealt with Hope, and in forming the C(5nclu-
sious I have come to in his ca.se, I have sought and found
oontivmatory evidence in the testimony of Mr. Shaw,
partly in that of Mr. Marsh himself, and very strongly in
the accompanying facts and circumstances. There is still
one inattei' of contradiction to l>e 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, an<l Bigelow ma<le a
ileiiiand on Hope for payment of a note for SI Hi, which
is no doubt a just claim, and also for an arrear of 8*200
upon a former year's rent, which latter sum Hope disputed,
because he said he had before that, and before he had had
any notice of Mr. Bigelow being his landlor<l, settled with
Paxton, his former landlord. Mr. Bigelow had long before
that time been told tliat very fact l)y Hope, and he had
' H
1
10
fV'
M ■
IP
i '
i\0
336
PROVINCIAL ELECTIONS.
[a.d.
accepted it when first told of it as true, and liad allowed
it to Hope as <;ood payment by dediictin<r it from that
year's rent, and taking Hope's note for .^300, tlie lialaiice
of that year's rent.
Hope never heard of this alle<i;ed arrear of rent lioini^
claimed nntil he l)e<.>an 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<l bribery of Edward Cunningham and Joseph May,
wliich I disposed of on the trial, also failed.
I may say I have no hesitation in finding the second
charge fully proved against the respondent so far as the
act of bribery was connnitted l)y Charles Marsh, his agent,
but I ac(|uit the respondent of all personal participati(jn
in it or knowletlge of it. Whatever knowledge the re-
s})(»ndent may have had of the nature of Marsh's act can
rest on suspicion only, which can nevei', and especially in
so serious a matter as this is, form the ground of an ad-
vei'se judgment.
Anil I desire to say also, that while I determine the
third charge against the respondent, I do so with less
contidence than I dispose of the .second charge, because
there are not wanting dicta of Judges which are not un-
favorable, to a considerable extent, to the view of the
respouilent, that Bruce was a mere volunteer for whom
hi\ the respondent, is in no way liable ; but that (juestion
ill this ca.se is of less con.se(juence from the conclusion I
have arrived on the second charge, that the election must
1h' vacated ; and I hereby determine that Thomas Paxton,
the I'espondent, the meml)er who.se election ami I'eturn
aie complained of, was not ^luly elected or ivtunied for
the reasons given upon and with respect to the second
and third charges above set forth, and that the .said elec-
tion was and is void.
1 shall give the petitioner the general costs of thecau.se.
I shall direct the petitioner to i)ay the respondent his
CDsts of the 4th, 6th, 7th, <Sth, and !)tli charges, and also
I if the charges made with respect to Edward Cunningham
iind Joseph May.
1 shall allow no costs to either party of the 1st and 5th
charges, and I shall direct the respondent to pay to the
petitioner his costs of the 2nd and 3rd charges ; and I
t^
"H'
. |5
ill
r '
.S.S.S
PROVINCIAL ELECTIONS.
[A.n.
.shall i-c'poi't to the Clerk of the Legislative Asseuihlv
(there Ix'ing at present no Speakei* thereof) that Donald
Brnee, of the V^illage of Beavin-ton, was guilty of a cornipt
practice, during the election, hy tlu^ intimidation of ( Jcoii^rc
VVharen, an elector of the said Riding, as before men-
tioned, with i-espeet to the thinl charge; and that C'harlcs
Marsh, of the township of Reach, was guilty of a cf)iiu])t
practice during the said election, hy the procuring for and
delivery to Thomas Hope, an elector of the said Ridiiiir.
the promissory note as l)efor(^ mentioned, with res])cct to
the said second charge.
That no corrupt practice was conunitted at tlu! sjiid
election l)y or with the knowledge and consent of either
of the candidates thereat.
And that corrupt piuctices have not extensively pre-
vailed at the said election, nor at all, so far as 1 have
reason to believe, except as aforesaid.
T shall report also that many of the taverns in tlie
Riding were open, and in many of tlie taverns of the
Riding spirituous and fermented liquors were given ami
sold upim the polling day, and during the polling hours
of that day, in violation of the (iGth section of the Elec-
tion Law of l.S()8.
From the above juilgment both parties appealed to tlie
Court of Appeal ; the respondent against the decision of
the learned Judge in (I) the Bruce-Wharen an(^ (2)
]VIarsh-H(){)e cases; and the petitiimer against the decision
in (I) the Leppard bril)ery, (2) the Hope bribery, and (-S)
Foley treating cases.
The appeal and ci-oss appeal were argued before Draper
C. J. A., Strong, Burton, and Patterson, JJ. A.
Mr. Hector Cameron, Q.C., for petitioner.
^fr. Hodgins, Q.C., for respondent.
The judgment of the Court was delivered by
' I
n
is7.>.]
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<l
2ud. Wiiethei'he was i>'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<G!S, and the act complained of under the second head
was not bribe ly.
The learned Judge with some hesitation held the agency
of Donald Bruce to be establislied; but I have not deemed
it necessary to consider that (piestion, inasmuch as I have
lieeii unable to convince myself that what is stated to have
iiccurred is a corrupt practice within the 72nd section.
Tlie evidence tends to show that Wharen was in arrears
III tlie Crown foi- a lot of land, and it is contended that
Bruce endeavored either to intimidate him or to influence
his vote by persuading him that the Government wouhl
look sharply aftei- those .so circumstanced wh(^ did not vote
for sup[)orters of the Government.
Xo doul)t it is the intention of the law that voters
should exercise their fr-anchise with the utmost freedom,
that they should use their- own judgmerrts, and that no
iuHut'iice should be brought t(j beai' upon them wliich
Would have the effect of interfering with this free exercise
of jirdgmerrt ; and if, in a c<instituency composed largely
of (lel)toi's to the Crown for Crown larnls, an organized
anil general sj'stem had existed, leadirrg the electors to
helieve that supporters and opponents of the Goveriiment
Would be differently dealt with, so as to create any gi-ound
of apprehension in their minds, I entertain no doubt that
the cornrrron law would declare such an election to be a void
election without anv proof of agency, because it would be
'2S
|:
\ i ■ >
' 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<hie inthi».'nce, in its |)roper statutory sense, of using anv
violence, or of tlu'eatening any danuige, oi- of I'esorting in
any fraudulent contrivance, to I'estrain the lihei-ty of ;i
voter, and so eithei' to compel or frighten him into voting'
or a'lstaining fi'om V(tting otherwise than in accordaiici'
with his own free will and Judgment.
The Act applies not only to cases when tlie injuiv
inflicted or threatened is wrongful or violent, hut to casts
where, although the paity has a perfect legal right to ilo
the act (if not done with a \iew to att'ecting the voti'), tli.-
doing it does inflict hai'ui upon the othei- side ; still 1
apprehend it uuist lie a threat of something which tlir
party or the })erson he ri'pi'esents would })i'esumalily haxc
the [)ower to carry out. If, for instance, the Commissioner
of (/I'own Lands ha<l heen the candi<late, and liis agents
had made a I'epi'esentation of the kind ascrihed to Druce,
or if such threat had heen made hv a local au'eiit of tlic
dei)artme]it, the \'oti'i' might perhajis not unreasonahly
assume that such a thi'eat might he acted on.
What occurred in this case was at most a mere hrutiua
t'i'/iiiiii, if intendetl as a threat at all ; it was one which
neither the princi[)al nor the agent ha<l any means of en-
forcing. It appears that as a mattei- of fact Wharen wa>
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\v<aro tliut tlici-c has Immmi any express dc-
cisiuii upon tlie point, l»ut I slionM say that it is always
n|M'n to in(|niiv, luultu' statntrs df this nature, whi'thcr
till' dcht was simply paid in aeconlance witli thi' K'u'al
iililin'ation to pay it, or wlictlii-r it was in fact [)aiil nv
st'ciuvd in oi'ilci- to imhiei' tlii' clcetoi' to vote or I'l't'rain
Frniii votin<^.
In Conpt r V. Sfin/r ((! H. \j. ( '. T+'i), on tile ai'<fumei»t in
till' Ffouse of Lords, Lord Brougham put this case: "Suj)-
yo^i- ji dt'htor to say to his crrditor, • If you will v(»ti' for
A.. I will pay you what I owe you,' would that he within
till' statute f Lord Wenslcydale adding': "It hein'if a
i^ivat advantan'e to havi- the d.-lit paid witliout the ti'oulile
ti) hiiiiu' an action to rccoNcr it."
If it lie (jjien to ini|uirc into tie' moti\'c, as I tiuid< it
i-. it is impossihle to say that the learned .IudL;e was not
I'lilly justified in holding" that the motive which inilucnced
Marsh was that of proenriuL;' Ko[)(' to voft- at the election.
Tlu'U, was there a ii'ift of any nionev or N'aluahle con-
siilcration in order to induce him so to vote .■'
The voter had for upw.irds of tivc years lieeii e;idea\dr-
iiiL;' to procure' pjiyment of tliis deht without success.
learned
lud'
has come
to tl
le conclusion
that
lie
ijid receive valualile consii
lerat
ion, m
tl
le sliai)e o
1).
xtous pi'omissory note, in [)lace <
)f a clai
ip
M
111 wiiicli Ills
ni^inal dehtors insisteil should he paiil hy Mr. Paxton,
liiit which he disclaimeil all liahility for, and which had
ivuiai
W
e I
ned in that unsettled position for nearly six years-
amiot say that the learned .lu(l^•e was wroiiL;' in
cniiiinL;' to the conclusion that this note would not lia\e
lici'u u'iven unless with the view of inducing' Hope to
Note: and as we think the evidence of agency was ample
tl) warrant tlie conclusion of the leai'Ued Judn'e, his de-
cision should be atfiriued an<l this appeal clismissed.
On the cross appeal it is uri;'ed that the di'cision of the
learned Judge was erroneous in holding that the i-espond-
I'Ut
t was not proveil to liave been guilty of bribery in the
Leppard case, in holding that tlie bi'ibci'y of Thomas
'4!
M
It I
ii
342
PIIOVINCI VI, ELECTION'S.
[a.d.
F{op(! l»y tilts rt'.spoiult'iit hiiiisrlf was not proVfil.Hinl that
tilt! trt^atiii^^ l»y the rt^spDinltMit's ui^t^it, .laiiitvs P. Kul. y.
at a mi'i'tin'4 of flt'titors asst;ml)li!il for the piii'posi; of pin-
motiiiif tlit3 fli't;tioii t)f tho ivsptjiitloiit, hail not, liccu piuNcil.
As to t'lit! fii'st of thi'Sf i'liar,L,'i's, tln' li'a.ni'il .Juiln'i' re-
ports tliL! tjvitlt'Hct' of Luppanl as imsatisfictt)ry ami lui-
rt'liaMt', rtfjun^iKiut in itself ami ilirt-ctly tiontrailictcil in
soim? nvspccits, ami he tlct'IiiuHl to i.'i)nvict tlu^ ri'spoiiilt'iit
ami sul>jt'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 dis<iualitication imposed by
tiu! statute for 'a corrupt practice committed with the actual know-
ledge and consent of a candidate. "
The decision of (riri/nui', J., in the Lincoln 'Vfxc {/lo-it), that tavern-keepers
alone are liable for the violation of s. GCi of 32 Vic, c. '21, as amended
by 'Mi Vic, c. 2, s. 1, not approved of.
1
I;
V -SI
I.
344
PROVIXCIAL ELECTIONS.
[A.D.
J'l r Ihtrton ainl Pitttiraon, ■].]. A. — The'2ii(l sub-sec. of s 3 of 'M\ Vic, u. 2
applicH ('i|ii;illy to tb'i eleuti'il .•iiid dcfeat'jii c;iiiiliilatb.~< at an oluutidii ;
ami, if fouiiil assenting parties to any pi'aetiee declareil by the statute
to he corrupt, each ot tlieni is liable to the disipialiticatioas mentioned
in the statute.
The petition contained the usual charg'e.s of corrupt
practices.
The facts of the case on wliich the election was avoidorl
ai'c set out in tlie judgment, and wei'e substantially as
follows: On the polling day, and i)etween 2 and 3 o'clock
in the afternoon, the res[)ondent drove up to Davidson's
tavern in the village of Carlisle, where he met one James
Sullivan, who had lieen an active niemlier of the organ-
ization which had nominated the respondent as their
candidate. The respondent, addressing ;>ullivan 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<ljoui'n-
nient of the Court yesterday evening and the meeting
1875.]
NORTH WENTWORTH.
34:
this morning-, I caret'iilly reail and considered the whole
fvidence. The result at which I arrived in regard to the
acts of the respondent and others on the p«jlling day, and
liming the houi'S appointed for taking the polls at David-
son's hotel in the village of Carlisle, rendered it unneces-
Mii y, in my opinion, to determine any other of the charges
RiKauced for the purpose of avoiding the election. My
tiiiding and my report to the Speaker will l)e limited to
tliat one matter.
It will be convenient to l)egin hy refening to the
•statutory provisi(jns on which the charge of ori'upt prac-
tices is founded. They are contained . ohc Oiitario
Statutes, 82 Vic, cap. 21, sec. 66 ; 80 Vic, cap. 2, sees. 1
ami 8, sub-sees. 1 aiid 2.
1st. "Every hotel, tavern, and shop in which spirituous
or fermented liipiors or drinks are ordinarily sold, shall
be closetl during the day appointed for polling in the
wards or municipalities in which the polls are held ; and
111) spirituous or fermented li(iuors (^r drinks shall V)e sold
or givvn to any person within the limits of such munici-
pality during the said period, under a penalty of SlOO in
e\ery such case."
2iiil. "'Corrupt practices' or 'corrupt practice' .shall
iiii'an lirilter}', treating J^nd undue influence, or any of such
otl'ences as are defined by this or any Act of the Legis-
lature, or recognized by the couunon law of the Parliament
of Elngland; also any violation of the 4(ith, (ilst and 7lst
sees, of the Eli.'ction Law of LSOx, ami any violation <jf the
(ilitli si'ction ()] such last mentioned Act during the hours
appointed for polling."
8r(l. " When it is found, upon the report of a Judge upon
an election petition, that any corrupt pi'actice has been
committed by any candidate at an election, or by his agent,
whether with or without the actual knowh^.lge and con-
sent of such candiilate, the election of such candidate, if
hi' lias been electe<l, shall be void ;" and further, when it
iias in like manner been found " that any corrupt practice
has been connnitte<l by or with the actual knowledge or
I,' CD
)■■■ ' I
r 1
tiii
m^\
«a « -^ -, ,.
%'
346
PROVINCIAL ELECTION'S.
[A.D.
consent of any candidate at an election, in additif)ii to his
election, it' he has Ijeen elected, l><,'in;x void, he shall, ilurinii-
the eight years next after the <lat<,' of his being so fouiKl
guilty, be incapable of being elect<,'d," K<:.
It will be seen, therefore, that th^; Hr-*t provision aV)ove
stated prohibits certain things, and subjects tin; persons
who act contrary to the prohibition to a p<;nalty of 8100
in every such case. The second, ainon-' other thiu>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,
superad<ls a very .severe personal dis'jualiHcation.
The question I have to dett'iniin^.- j-^, whether the ic-
spondent is guilty to the full e.Kt<,'nt, <M) as to be unseateil
and disqualified, or so far only as Ui \»*: un.seate<I, and this
(piestion is to be disposed of on th«; evid»rnce taken on thi'
trial.
Now, it is not disputed that the 00th .section above
quoted was entirely .set at naught in lK>th particulais.
Davidson's hotel was not k(;pt cios<?d during the day iqi-
pointed ft^r polling, and whiskey and \tcj:r were both sold
an<l giviTi in that hotel within the limits of Cailisle.
Davidson's evidence proves the hoUM.- not altogetht.'i' open,
for there was no access proved Ui e.\i*»t directly from the
street into tlie bar-room ; but entranc*.- from the street
into the dining-room was pi"ov(.^d. and i[»iiituous li(iuor.s
and lieer were pa.s.sed from tht' l»ar into the dining-room.
Then it was proved by Sullivan that. V>«;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-
spon<k'nt's attention liad evidently been attiacted pre-
viouslv to the law, wliich occasioned liini to say lie dund
not treat, and this makes it the more remarkable that he
should have so entirely overlooked or +'or<^fotten the pro-
hibitory enactment as to having certani houses closed,
aixl as to the sale and gift of li(iuors, etc. In reality, he
acted like one who <lid not know tliat the law reciuired
that the hou.se should be kept clo.se<l and that liipiors
should not be sold Ijy the tavern-keeper or given away
liy Sullivan or any other purcliaser while tlie polling was
in progress. I am compelled to attribute knowledge of
the law to liim ; nor can I avoid the conclusion that he
was a participant in its breach. He went into that house
in onler to accept a treat which his own i-emark shows he
did not imagine wouid be limited to liimself, ami which
was not so limited.
The whole evidence niay be thus summai'ized. About
a dozen of the electors of North Wentworth met together
some time Itefore the election for Xoi'th Wentworth, to
consult as to their cour.se, they all bi-ing of similar
political view.s. By them and others the respondent
was nominated, an<l ultimately acce[)ti"<l the nomination.
James Sullivan was one of their body. Thei'e was but
slight evidence given of theii- proceedings until the poll-
ing day. It appeared that they were not personally
summoned to meet — ilid not keep minutes of tlieii- pro
cee<lings, appointed no chairman — but as they met one
another, they agreed to meet ami adjourn theii- meetings
fi'om time to time; and it Avas argued, on the.se and simi-
lar gi'ounds, that they did not constitute a conunittee —
but there is no magic in that word. These pai'ties united
togetlier for the connnon purpose of jn-oeuring respcmd-
ent's election; tliey had some organization; they canvas.sed
electors, procured voters' lists, and got reports on which
they estimated their chances of succes.s. They aic the
paities, so far as appears, whoso nomination the respond-
ent accepted and acted upon; and if they did not style
I|fl01illflff^
liiiliii
lliii
I
I!,!
348
PROVINCIAL ELECTIOXS.
[A.T).
themselves a eouiinittee or eoiriinittees, they seemed to
have assumed the functions wliich usually devolve upon
such hodies. Mr. Sullivan appears to have heen an ener-
getic member, under whatever name, in supporting tlii;
respondent. It is he who, in the respondent's presence,
gives spirituous li({Uors and heer to some of the electors
who were assembled on the polling day as respondent's
friends, the respondent l)eing present, with his silent con-
sent and undenial)le knowledixe.
This was a corrupt practice by the express languagi." of
one of the statutes. It was committed, as I conclude, to
help the respondent's election by one of his known sup-
porters, and it was concurred in by the respondent, and,
as I am willing to think, in forgetfulness at the moment
of the law.
I <lo not foun<l my conclusion on the question whether
the responilent actually did drink any of the li(|Uor or
beer given by Sullivan, who bought from Davidson. But
he was one of those who more or less actively concun-ed
in a corrupt practice. He joined in going into the house
which the law directed should l)e kept closed ; he joined
in accepting beer as a treat, or, in other words, as a gift —
in a literal as well as substantial violation of the law,
with a knowledge of the fact and assenting thereto. It is
not as if the (question turned on a violation of sec. (iij,
when he was prosecuted for the pecuniary penalty, and
might say he was not within the law, having neither sold
nor given. Until those acts were declared a corrupt
pi'actice the election was iiot avoided, but since that
declaration, the effect o?;' the OGth section is extended.
The concurrence in the connnission of the prohibited acts
makes the candidate responsible for the newly im])oseil
consequence.
I must report to the Speaker accordingly.
From this judgment the respondent appealed to the
Court of Appeal.
iNI
]S75.]
NORTH WEXTWORTH.
349
.][/'. J. Hilljiard Cameron, Q. C, Mr. R. A. TTnnison,
Q.C., Olid Mr. Thus. Rohcrtson, Q.C., for appellant.
}[i: BdJiunc for petitioner.
Hagauty, C. J. — The facts, as detailed liv testimony
tVicniUy to the appellant, are very clear. Davidson's
tiivern was open for the sale of li([Uor dni'ing polling
liours, although the foi-ni of clo.sing the bar was observed.
Tliis was in direct violation of the statute. Several
persons are assembled there. The appellant drives up,
(luclai'es that he cannot and will not treat, and that some
one must treat him. His supporter, Sullivan, accordingly
does so ; appellant takes a glass of beer, and two or three
others join in Sullivan's treat.
It is foi'cibly argued for the appellant that these facts
do not show a corrupt practice committed " by or with
the actual knowledge and consent of the candidate."
First, it is urged that the violation of 32 Vic, cap. 21,
sec. f)(), can only mean an incurring of the penalty of
si 1 10 thereunder, and that the appellant cannot come
within its provisions — (1) in the strictest construction
of it, that it only applies to the innkeeper; and (2) on
the wider construction, that he was not either the seller
or the giver of the li(iuor. Again, that sec. 3 of the
Ontai'io Act of 1.S73 is divided into two sub-sections
wliich nuist 1)e read together, and that the corrupt
practice brought home to the canilidate's knowledge and
coiisL'nt, in sub-sec. 2, must lie read as only the corrupt
practice mentioned in the preceding sub-sec. 1, "com-
mitted by any candidate at an election, oi' by his agent ;"
tliat the facts before us may show a corru[)t practice in
the innkeeper, but that the latter was not the appellant's
agent, or that even if a corrupt practice in Sullivan in
giving the liquor, the latter was not appellant's agent.
It is pointed out that section 4G of the Act of 1871
for which the existing enactment has been .substituted,
provides that when any corrupt practice has been com-
mitted by or with the knowledge and consent of any
1
350
PROVINCIAL ELECTIONS.
[A.D.
:Uii
candiilato, his election, if elected, sliall be void, and lie
shall be disqualitied, &c. And an argument is founded
on the ert'ect of the two sub-sections substituted for this
4(jth section.
The legal construction of the existing clauses urged by
the appellant seems to have commended itself to the
well-considered judgment of my brotlier Gwynne in a
very recent cui^c (Lin coin casCy'pod ; s. c, 12 Can. L. J. 101).
I feel very great difficulty in bringing my mind to the
same conclusion.
We have not much authoi-ity to guide us. It sccuis to
me that we must simply try to satisfy ourselves as to the
meaning of the words used by the Legislature. We have
to ask ourselves what was considered the wrong to be
remedied; next, the Vv^meiiy to be applied. The wrong
was very plain — the keeping open of public houses, and
selling and giving away of licjuor on polling days.
For the decision of this case we ai-e not necessarily to
decide some of the extreme cases suggested in argument,
such as the di'iidcijig of a glass of beer at the private
table of any person (not an innkeeper) at which an ordi-
nary guest might lie present and pai'take of such drink
as the common beverage used by the family — 'the meal
and the presence of tlie guest being wholly unconnected
with any election or canvassing object. I am quite pre-
pared to express an opinion on this point whenever it
may be necessary to do so.
To copfine the section wholly to the innkeeper would
prevent its reaching the case of a private person who
might on the polling day broach casks of ale or spirits
for the pul>lic 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 candi<late as
an agent, or perhaps even as an avowed supporter of any
candi«late, and yet the mischief caused l)y such conduct
might be enormous.
It is to be remarked that this clause appears in a
statute that makes no provision against treating, except
187.).]
:;ORTH WENTWOIITH.
351
in tlio one case as to niuotings called to promote the
ck'ction.
We must always, in my judnnient, try to consti-ue a
statute in the liy-ht of common sense, and always give
full cre<lit to tlie Legislature to have use<l woi'ds (not
licing woi'ds of art or of teclinical significance) in their
onlinary meaning, as they would Vte naturally umlei-stood
liy those whose conduct tliey are intended to regulate.
There is a celebrated passage as to the construction of
statutes in Plowden, 204 : " The judges of the law in
all times past have so far pursued the intent (jf the
makers of statutes that they have expcmnded Acts which
wcij general in words to he hut pai'ticular where the
intent was particular. . . . The sages of the law
heretofore have construed statutes quite contrai-y to the
letter in some appearance, and those statutes which com-
prehend all things in the letter, they have expounded to
extend but to some things; and those which generally
prohibit all people from doing such an act, they have
interpreted to })ei'mit some people to do it ; and those
which include every person in the letter the}^ have
adjudged to reach to some persons only ; which expcjsi-
tions have always been founded upon the intent of the
Legislature, which they have collected sometimes by con-
siderinii' the cause and necessity of makini"' the Act, some-
times by comparing one part of the Act with another, and
sometimes by foreign circumstances. So that they have
ever been guided by the intent of the Legislatui-e, which
they have always taken according to the necessity of the
mattei", and according to that which is consonant to i-eason
and good discretion."
Sir George Turner, L. J., cites this passage in Hdirkin-'i
V. Gdtkcrcolc (() De Gex, M. ^<i ({. 21), saying, "I have
selected these pa.ssages as containing the Vtest sunnnaiy
with which I am ac(piainted of the law upon this sub-
ject We have to considei- not merely the
words of the Act, but the intent of the Legislature to be
collected from the cause and necessity of the Act being
; ■ M
t-H
1 f ■
■ 1 -
m :
Mfri
j
te_^
3.-) 2
PHOVFNCIAL ELECTIONS.
[A.n.
matle, i'roiii a coiupurison of its several parts, an<l finm
foreign, that is, extraneous, circumstances, so far as tlicy
can justly be considered to throw light upon the subject. ''
Sir J. L. Kniglit Bi-uce, L. J. (p. 19), speaks of the pio-
prlety (jf reading the Act " with a due degree of actentioii
to the nature of the subject certainly endiraced by it, to
the state of <jur institutions and jurispru<U'nee when the
Act was passed, to the judicial constructioi\ that otlicr
statutes have by apiii'ove(l decisions ri'ceiveil, and to the
uniNcrsally recognized canons by whicli the interpreta-
tion of hiws is I'egulated."
The case is approvingly noticed in Coj)c v. Dahcrfi/ (2 Di'
(t. tSr Jo. (il-t), before the Lord Justices in bS.")S.
Ill the wcvntSdidh Esficr cnxc (unft; p. 2-V) ; s. c, 11 Van.
\j. J. 247), the learned Chancellor held that the partak-
ing by Alfred Wigle, whom he fomid to be an agent of
rlie respondent, of a treat given by J. Mct^)ueen duiiii^'
polling hours in Lovelace's tavern, was a corrupt acf,
witliin the statute, which would avoid the election.
Idere the candidate him.self partakes of a treat under
the same circumstances, instead of his agent. If the
^(H'th /i'.s.s'r/' ni.^c were I'iglitly deci<le<l (on which I exi)ress
no opinion), it would seem to be impo.ssiljle to njtliold
either this election or tlie non-dis([ualitication of the
eantlidate. If it is a corrupt act sutHcient to avoid the
election by the agent accepting the treat, it must he
eipially so in the principal, with the fatal addition of
knowleilge and consent. 1 think the present case I'aises
a much more formidable ([Uestion than that before the
learned Chancellor.
It is pressed upon us that the evidence shows n direct
])articipation by the candidate in what the Legislature
has pointedly declared to be a corrupt pi-actice — that if
it be a corrupt practice in Davidson to keep his tavern
open antl to sell licjuor during polling hours, and the can-
didate knowingly goes thereto and drinks thereat, it is
impossible to say he is not a consenting party to a corrujit
practice.
■ 9 "i^ifm^mmmm
IN?.).]
NORTH WEXTWOUTU.
:]y.]
A case was snynestt'tl in the ari;'uimmt. We will supjiose
Davjilson closini;' his tavern accordinLf to law, and ivt'us-
ino' to ^'ivc ()!• sell (Irink to any ont'. Tlif candidate
apjifurs and tells him not to act foolishly, Imt that it
wiiuM he licttcr to let people have drink who inin-ht
desire it. Therenpon the tavei'n is opened and the can-
(lidiite acce])ts a tre.at tVoin a friend. It was .snu'nesteil
tliat in such a case the candi<late would l)e responsilile,
liecause he would tliereby make tlu' tavern-keepei- his
,ai,a'nt. I do not see that any ([Uestion of a<;'ency would
ai'ise. Tlie tavern-keepei' acts on the su,uf;'estion or the
reasonin,^• of the candidate, hut he does not therehy hi'-
cmiie his aii,'ent in any sense Intel liu'ihle to me. if the
cjuidiilate liad in like manner su^'u'ested to all the othei-
iiiiike('[)ers in the constituency to do the same tiling', 1
>tilldo 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<loul:»t(,'dly committeil liy
thrill, woulil not he so committed with his knowledL;(' and
(M.insent.
Ill sliort, the only escape that I can see for the appellant
I'rom the strin^'ent provi.sions of the Act, unist l)e oui'
iiiloption of the ari^'ument tliat the corrupt practice com-
mitted witli his knowledge and consent can only mean a
ci)rrui)t practice actually conunitted Ity himself or liy his
ai:'ent.
1 do not see wliat right we have thus to nai'row the
vei'v clear words of suh-sec. '2. I do not consider that we
in any way infriny'e on the rule as to the strict constmc-
tiiiii of statutes creating' penalties and dis(iualitications.
It' We ail(.)ptthe appellants construction, I \-ery nuicli feai
that we slujuld he defeating the cleai' intt'Ut of the Legis-
lature, as evidenced by the plain language use(l.
The sale of the liquors at the tavern during ])i)lling
urs is declared to he a corrupt practice. The tavein
:iu
keeper — the otfender against the law — is not shown to
he the candidate's agent. The latter is shown to have
known of the law being broken, Vnat nothing is proved
\\' I
V"'
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i
m
ill
3o4
PROVIXCIAL ELECTIONS.
[a.d.
to indimti his approval or consent tht'i-cto. But the
iiionicut we find liini flrinkin<^ at tlic otlemlinif tavern —
])(!rtV'ctIy well aware that it ou^ht to have lieeii clixnl
in.stead of heinn- open — then it is beyond my eoiupie-
hension how I can place' such a constrnction on the woiils
as to hold that the corrupt practic** was not coinniittod
with his knowledife and full pi'ivity and consent.
It was uri;'e(l on us that the Ije^islature couhl not liavf
intended to intliet such a penalty as ei<rht yt'ars' <lis(|uali-
Hcation for Parlianientaiy honors or inunici[)al oflices, or
ortices in the f'ift of the Crown, for this slight, hreach of
the law. We liave considered the case in this aspect with
most painful attention.
When a sevei'e punishment is made e(|ually apjtiicahle to
a case like the pi'esent — the acceptance of a glass of liecr
fi'om a frieml at a house illeo'ally ki^pt open — as to a case
of the most tlanitious and nnpi'incipled bribery, the ai't,ni-
ment can nevei- be unexpected that the Legislature jouM
not have so intended the law to be. It Is a cardinal prin-
ciple in every gooil law that it should connnend itself to the
appi'oval of all well-disposed citizens. It is (juite possihje
that at the passing of this enactment — honestly desigiieil
to remedy great evils — the a})plicability of its severest
penalties to a case like the present niay not have lieeii
directly anticipated.
I agree in the conclusion of the learned Chief Justice,
that the appellant acted at least in forgetfulness of the law.
It is for the Legislature to deal with these cases. \Vi'
can only striv^e to interpret their meaning by the ordinary
rules of constrnction.
Strong, J., concurred with the judgment ilelivered by
the Chief Justice of the Connnon Pleas.
Burton, J. — I see no way of avoiding the conclusion
at which the learned Chief Justice and my brother Strong
have arrived. One not unnaturally feels a repugnance to
give a decision, the result of which is to inflict, for so
slight an infraction of the law, so harsh a penalty upon
•V"" ■>
•-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<l
till' (icciiii't'ncr of siicli a cast' as the |iicsi'iit, ami it is not
iiiiicasonalilt' to assume that, lia'l tlieii' attention Keen
drawn to it, they would not have visiteil such an iidVac-
tidii or the |iro\isions of the statute with the same
[iciiahies as are aimed at the more ^rase and ilisre])Utal'le
(iirences of lii'iliery, intimidation, and corrupt pi'actices of
that nature. We have, however, to interpret, not to make
the laws: and with every anxiety to relie\-e the appellant
t'liilii the penal CoUse(plences which the decision of the
li ;nne(l ( "hief Justice of this Court has e.Kjiosed him to.
I ciii come to no other ci)nclusioii than that that decision
i^ a curi'ect one.
We may as.sume, i'or the [)urpose of tlie present decision,
iliat the only per.son who is lialde to the jiecuniary penalty
atiived to an iid'raction of the (i(!th section is the hotid,
tavern or shop-keeper who, in \iolation of that section,
M'lls oy i^iNcs to any pei'sou spirituous or fermented liquors
iir drinks within the limits of the nuinici[»ality <lurinL;- tin-
day a[)pointcd for pollini;-. l're\iously to the Act of ls7-{
that was tlie only penalty [)rovided ; hut that Act in
addition makt's any violation of it durine' tlie hours
a[i[iniiited for polling' a " coi'ru[)t practice."'
Assuming still that the only [)erson who can he said to
he acting in \iolati(jn of the (ilitli section is the hotel or
sli(i]id<eepei', and that he alone is guilty of the coi'i'Upt
[iractice, liy selling or giving liipior during polling hours,
I (1(1 not see how it is possiMe to ax'oid the conclusion
that this act, which is, without I'cfcrence to the intent or
iui)ti\c, declai'cil to lie a corru])t act, lia\'ing lieon com-
mitted with tlie actual knowledge and consent of the
appellant, not only avoids the election, Imt in addition
snhjccts him to the jicnalty of disi[UaliHcation for the
period named in the statute.
It \\as very inueniouslv argued that the 1st and 2nd
suh-scctions of secti(jn -i must he read together: that the
%\
i ; I
J
1
\:i
i
i
fffe^
3:)()
I'KOV I N ( I A I , KLIXTH )NS.
[A.I,
1st sul>-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<iiowh'(|n'(> 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<l suh-section which will
entirely alter its [)lain and natural meaninn', it is im{)os-
^ihle, in my o])inion, to hold that the decision of the
liaiiieil Chief Justice is erroneous. For my part, I thiid\
im other rational conclusion could he arriveil at, and that
the ajipeal sh(juld he dismissed.
l'A'n'i:i!S()N'. J. — The facts wliich, in my iiid^iuent, are
Miateri.nl to the decision of this case, are not disi)uted.
Tlii're is no douht tluit Davidson, a ta\ern-keepei' at
Carlisli', violated .sec. (iti of the Act of iSti.S, :]'2 Vic, cap.
-I, hy selling' and n'iviu'^- s])ii'ituous and fermented liipioi-s
and drinks to persons in his tavern on the polling' day.
Thert' is no douht tliat this was a c()rrupt practice in
Daxidson, under tlie Act of l.s7->. •><) \'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<U'(l, and himself dis(|uali1ied uiiiLt
suit-sec. '2 of sec. 'i of the Act last referred to.
Tlie contention foi- tlie appellant is tliat snli-see. '2 oiily
applies wlieii the candidate himself, oi- /n's niji ,it \\\[\\ his
know ledoo and consent, commits a coi'rnjtt practice. It ]-.
argueil tliat as si;h-see. I makes \-oid the election liy
reason of any corruot act connuitted hy a candidate, or
connnitte(l hy his a^'.-nt, eitlier witli or witliout the know-
ledn'e of tlie candidate, and as suh-sec. 2 does not sav in
direct words, as was said in sec. 4(i of .'U Vic, ca]). •'), tlat
a corri;])t practice committed hy oi' witli tlie know led^e
and consent of the candidate sli.dll iivil:c liia c/cr/ioii nm/^
and also dis(|ualiFy him, hut mei'ely says that, iii mhlituni
III fill' rli'c.luni, hciiKi rniif, he shall he dis(jualitie(l — it luust
lie lead as sayinj;', that in adilition to the election heiiiu'
Void — If tunh r suli-scct idii I // ii-dnldJic raid — -the camlidate
shall he dis'jualified ; and that unless tlie election is
avoided 1 ly suh-section 1, tliei'e is nothin;^' in ,suh-sectien
2 either to avoid the election or disipialify the eandidati'.
IJt'sides hearinu' the arii'unient a<ldressed to us in this ca^c,
I ha\e had the advantage of readiny- that part of the viiy
ahly ari!;ned ju<lniiieiit of Mr. Justice (Jwynne, in the
Lineal )i ciisc (jin.st), in which he diseu.s.ses the constructicii
of suh-section 2, and takes the .same view which has hem
urii'eil upon us, although 1 helieve he decideil the case mi
groun<ls which diil not depend on his I'eading of tliis suli-
seetion. With the greatest respect for the ahility aii'l
authority of that learnetl Judge, and fully appi\'c;atin^'
the rea^oe.iiig which he so forcihly employs, I iuii unahjc
to agree with him in the construction of the statute.
In ISTI, the jiarticular otti-nce now in (|Ueslioii had nut
heen declared to he a corrupt ])ractice; hut section •"] of tlic
Act of IS71 defined corru[)t practices as including luihi ly
and undue influence, and illegal and prohihited act< in
reference to elections, or any of such oHences as detim 'I
m
isyr..]
NOHTH \VEN'IW()l{'l'ir.
359
hv Act of the li(',t;'i.slatui'('. llinlcr this (Ictinition iiiany
acts were inohulcil wliic'h were not lU'cossai'ily CDinniittt'il
liv citlicr the (•aii(li(hitt' oi' liis anfiit.
Tlicii scc'tioii 4(! of tliat Act, whicli dochn'cd that m'Iicv
it was I'ouiid hy the -Judn'e that any corrupt pivicticc liad
liccii cwiiiniittt'il hy or witli the loiow h.-dnc and consent of
iUiv ciiiidifhite at an election, his eh.'ction slionid !»(■ voi<l,
and he sliouhl he dis(|ualiHed, e\i(h'ntly a[i[)hed to avoid
an election and dis(|uaHfy tlie candiihite, liy reason of the
(•Minniission liy any one, wlnither his a^cnt or a vohmteer,
iif any (•orrn[)t ])ractice with the knowli'd^'e- and eoiiseiit
o\' till' candidate. What was not pi'o\ided foi' hy that Act
was till,' a\-oidanc" of the (dection in case the a^^cnt, witli-
oiit tlie knowie('ni,; or consent of tlie can(U<hite, committed
a eorru])t practice. This oniissi(»n lias lieen su])plied hy
suli-section 1 of s(.^cti(jn -S of the Act of l<S7'i; and tlu'
(ihject of passini;' tins .section •) piohahly was to supply
tills iiiiiission.
llnxinu' re^ai'd to the course of li'L;islation witli respect
til purity of elections, which has tended constantly to-
warils n'reatei' strictness in the [)rovisi(jns for I'epi-essing'
e\eiv act ami c(jntrivance hy which tlu peii'ect fn.'eiloni
and honesty in the exercise of the fi-anchise ma}* Ix- inter-
fered with; and this policy hein^" distinctly ap[)areut in
scvei'al of the piovisions of the Act of iST^i, iiarticulai'ly
ill tlie extension of the definition of coi'rupt [)ractices Ijy
sec. I, there is no I'eason to .suppose that tlie Legislalui'c
intended that any election wliich would have been avoided
under the Act of 1871 should stand ;j;()()d under the xVct
et' i>»7-i ; or that while a new uround for avoidiiiLi,- an elec-
tinii wasail<led,viz.,wlienan a^'oit, witlioutthe candidate's
knowledge or consent, committeil ;i corrupt practice, it was
intcndefl to <leclai'e that a coriujit practice, committed
wifh the knowledo'e and consent of the candidate, hut hy
«inr who was not his agent, should no lon^'ei' either ati'ect
till' seat oi' work any personal dis(pialitication.
It would riMpiire lanL;'uai;'e very clearly enacting' such a
cluui^'e to have the etfect contemled for. We must not
■IHMIi
mmm
.•'.00
PROVIXCI A I- EI.ECnoVS.
[A.D.
jliifii;
i
■i#ll
regard the (juestion as relating only to the selling f)t' liquor
at taverns. It extends to hi-ihei-y, undiu- influence, ainl
nil other prohiljited acts which, according to the conten-
tion of the a])pellant, may now Ix.- coinrriitted oi- |)ractise(l
l)y volunteeis, with the knowledge nriA consent of the
candidate, without any fuither rink than the risk of
destroying the vote that is inihienced, and incurrini'- the
])ecuniary penalty. If it is answered, that l>y 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," <lo not carry with thein u
declarati')!! that the election shall V- voifl, and that theie
is nothing (dse in the sub-section which has the etiect of
avoiding the election.
Let us test tins hy leading s<.<;tion 3 as applying ui i
deft'ated candidate. He will not U; touched l.y sul>-sec, 1,
as he has not been elected : and wlien w*; siinj)ly omit
from suit-sec. 2 the woi'ds which <lo not concei'n him, viz.,
" in addition to his election, if lie has brfii ♦dccte<l, beiiio'
void," every word that i-eniains )>• [x.-rfectly applicable to
him. There is no doubt of his <li'^jua!itication by I'cason
of a corrupt practice Ijeing done with his knowh'dge and
consent.
If it is still ui'ged that tlie first '«iih-section, though not
in terms afi'ecting a defeate<l candidate, must neverthel(*s
be read with the .second, or that the •^.■cond nmst be I'cad
in the light of the hi'st, as if the- words were, " by the
candidate or '/// ///s (((jent, with hi^ kFK)wledge and con-
sent," I answer that instead of inii>^^iting into sub-section
2, woids which cannot Ite s'; intr'/<lnce'd without doinLi;
sonu' violence to the structure of the clau.se, it will be
nmch more in accordance with the spirit and object of the
Act, if any change of reatling is to take place, to read the
first sub-section by a slight transprisition, as if wor<led
thus : " When it is found .... that any corrupt
practice has been conujiitted at an election by any can-
is7.').]
XOllTM WENTWOIirU.
:}(>!
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<lidate to lit," dis(^ualiHed on
gniiiiids which ilo not ati'ect a successful cancUdate '. The
siih-st'ction cannot lie so construed. And if we read the
ilis(|ualifyin,!j,' clause, we Hml that the candidate is nia<h>
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 <liliM-untlv
note'il: ami after all, all that a jiide-e can do is to expi'css
the honest conviction whicli tiie whole evidence and hear-
inn' of the vritnesses liave iuipi'csscjd upon liis mind.
Kii-st as to the charge of corrupt practices conniiittcil
1)\' ( leori^'e Wriii'ht, in treatitiL!," at meetings of committees
in his own tavern. That a candidate may so avail him-
self of the services of mend)ers of a political association,
in canvassing foi- him and promoting his election, as to
maivC them his agents, for whose acts he shall he respon-
siltle, there cannot, I think, he any douht ; hut notliinn'
could he more repugnant to connnon sensi- and justice
than to hold tliat hecause a political association puts foi-
wanl or su[)[)orts a particulai' candidate, thci'efore every
iiiemher of that association hecoines i/ixn J'ar./o his agent.
The meetings which took ])lace at Wright's ta\ern were of
memhers of an association called the Lilieral-Consei'vativi;
Association. None of the memhers so meeting were; mem-
hers of the respondent's committee. A convention, as it
is called, of that association had put forward the respoiul-
ent as the person i'eco;nmendeil to th.e support of the-
meml'i'i's of the association. What was done at these
meetings, or for what particular purpose tliey wereassem-
hled, dill not very clearly appear; it may he admitted
tliat the members of the association who assembled at
Wi'ights were electoi's assendile 1 i ) pi'omote the election
of the lespondent within the ()lst sec. of the Act of h'StiN
as amended hy the Act of LS7''^, so as to make Wright
himself guilty of corrupt practict^s in su{)pl\ ing drink to
tliem it or inunediately aftei- their meetings; hut they
were not, that 1 can say, in any sense the agents of the
respondent, or in any way authorized by him, nor does it
appear from anything in the evidenci; that he hail any
knowle<lge of tlieir meeting. The evidence shows that
when the respondent had a meeting himself at Wi.;ht's.
1875.]
XORTH fiHEV.
noo
tlioro was no treating' witliiii tlic incanini;' ol' the (ilst
section, and I can tlu'iet'oiv ari'ive at no other conclusion
upon this licad than tliat it is not proven, in so far as the
respondi'iit is concci'iUM], or so as to jitt'ect him ; althoui^h,
as atlocts Wri,i,dit Inmselt', lie lias sufficiently adiuitteil the
cJiai'U'e to suhject him to heincf reported as liixviiiy' hecn
n-nilty of {; violation of the section referred to.
As to the coi'i'Upt practices charj;'ed as liiivijiu- heen com-
iiiitteil hy Dr. Mc( JrcL;'or at l)eshorou,i;'li, Chatsworth and
\ViIliiUiisfor<l (aitliouu'li whether or not there was treat-
iii^^' ly liim at Chatsworth does not appear to he clearly
estaV)Iished), there is, I thiidv, sutKcient estahlislieil to suh-
jiT't liim to all the consequences annexed to tlie violation
uf the (ilst section of the Act; hut wliethei' oi- not the
ivspondent is to he att'ected hy his conduct depends upon
whether Dr. Mc(Jreo-or was or was not an a<;'ent of the
n'S])ondent, foi- whose conduct the latAer is to he held
iL'sponsihle.
It has heen in diii'erent cases said that no one ( an lay
(lowii any ])i'ecise I'ule as to what will constitute evidence
nf licin^- ail agent. Each case must <lepend u])on its own
circumstances. Detinitions may he attem])te<l, hut none
can he fi'amed applical)le to all cases. " It rests with the
jiid^v," as is said in the Wah'Jiil<1 r„^e (2 O'M. .Vr H. lO-S),
■ not misapplying oi' sti'aining the law, hut ai)plying the
[iiinciples of law to changed states of facts, to form his
opinion as to whetliei- there has or has not heen what
constitutes agency in these election matters." We have,
however, the opinions and sayings of some very learned
•ludges to guide us in arriving at a just decision, and first
1 may place the ohservations approveil l)y Keogli, J., in
the .s7/r/(> 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 a<lvised, hold that the acts of a man wlie
was known to he a volunteei' canvassei", withduJ. n/ii/
(iiif/ior/fij fi'oni the candidate oi- any of hi.s agents, hound
the princi[)al."
The (juestion, as it .seems to me, may he said to he one
of intent. Did the candi(Late depute and authorize the
person to he Ids agent, and did the per.son so authorize(l
accept tlie deputation ? If so, to wliat extent; namely, was
it for the performance of a special isolate<l act, or foi' a
few special acts, or was the appointment as agent gone-
rally, hut with powers confined to a Hunted district, con-
stituting pai't only of the electoral divi.sion, or was tlie
appointment as agent general, extending over all parts of
tlie eleetoi'al divisit)n ? For upon the natui'e and extent
of the authority conferred and accepted must depend tlie
nature an<l extent of the liahility of the principal. What
the nature and extent of the agency is, may Ije estalilislied
by direct positive evidence, or may be inferred from the
acts and conduct of the parties ; but all inference is ex-
1«75.]
NORTH (SHEV.
:]{
u
eluded it' tlu' cvidciUH' imiorrs any intention n]inii the
naif III" the parties eitlier Id ciint'er (ir accept autlioiity,
and at tlie same time sliows witli reasona^de ceitainty tiiat
ads. wliicli in certain events niiu'lit lie sutlicieiit to warrant
till' ilra\vin<^ an infeivnce of an autliori/,e<l aLfency liavini;'
liccii created, are attrilaitaMe to or explicalde Ity other
iii'hiences atlectin^i;' tlie mind and condnct of the party
allci'vil to h(' an aj^ent in the jterformance of the acts
ivliid u[ioii as estahlisliinn' tlie a^vncy. In such case there
is 11(1 a,i;"cncy, and tlie pfirty assumed to he a juincipal
cannot he ati'ecti'il hy the acts of the otlier.
Now, in the case of Dr. McGreg'or, tlie facts may he
liiiitiv stated to he, that liaving lieivtofore heeii a mem-
lirr of tlu' party to wliich the resjiondent liad heen always
(ippDsed, and heini;' ii puldic man of considerahle imj)ort-
ancc ami puhlic intliU'iice in tlie township of Holland,
ivctiitlv hy Act of Parliament se[)arate(l from the Noitli
Kidiiin' of (Jrey, ami heiiii;' very much annoyed and iiidin-
iiaiit, upon puhlic grounds or otherwise, with the separa-
tion of his township — of which he had heeii just recently
(dcrted I'eeve — from Avliat he conceived to he its ^I'ouia-
pliicul connections, lie resolved to use all his iiiHueiice to
n]i]Mi>f the ministerial candidate for this lii<linL;'. He
piihlicly announced his intention of so d(jin^', as I ^-ather
tVeiii the evidence, at the close of the mectine; at whi(di
till' iiomiiiation took place, or I should say pre\iously, for
some of his former friends seem upon that occasion to
li!i\t' called him a turncoat, which IcmI to some warm alter-
cation.
The respondent formecl a committee to act as his ai,eiits
to promote his election. Dr. Mc(iiei4'or \\as not one, nor
decs lie appear to have heen excr asked to he (,ne. It is
ivlicd u])on, that U[)on one occasion he was in the respond-
nit's cuiiimittee-room ; hut the evidence shows that this
was foi' the purpo.se of consulting his local knowledge as
tntlie most suitahle ])laces at which to call public meetings
<if (dectors in his neighhorhood, having icgai'd to the then
cundition of th.e roads — the great depth of snow rendering
\u ?
;{(;h
i'i«(»vi.N('iAi, i;i,i;(Ti(t.Ns.
L.v.i>,
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•^■
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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
tHii<li<lato wlio iiifiy pi'ilmps ln»l«l a fow, and only a few,
opinions in conunon with tlicin. Nor is it meet that can-
didates shouM he exposed, ajjfainst their will, to the peril
of havinj^ persons presun»e<l to he their aj^ents whom they
have not ma<le an<l never intended to make such, mendy
liccause from theii* own pnhlie standj>oint 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' conse<iuences attendant upon his own violation of the
Ihw.
'riirrc remains to he consideri'd the last LTroniid I'tdioil
ujHin. namely, that Mr. Paterson had tiojited Mi'. Scott,
and tliat this was in violation of the i)<ith section of the
Act oi l,S(iS.
Till' facts ridatin<f to this chai'n"e arc that the I'cspoml-
iiit, lirtwreii -i and 4 o'clock in the aftoriioon of tho polliii;^-
day, when ,Lfoiivu' down the stairs fr<»m one of tho polJiiiLT
liiaces in Owen Sound, in comjtany with liohcrt l^itcrson.
a supporter of the opposing cnmlidate ami ono of tlio
pi'titioiiers sureties, not havin^• had, as rf.s|)ondent says,
any refreshment since H o"elo(d\ in the iiioriiinL,', ami not
haviiiLi: his slei<;'li at hand to take him home, exjiressed
liiiiiself to his friend Mr. Paterson in some siudi terms as
follows: "Is not this a liai<l law; 1 ha\'e hail nothinjj;
>iiiee 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 <dass of ale, for which Mr. Paterson paid,
■U'.
;fc
c i|
and which they drajik in the hall of the hotel.
872
IM{< 'VINXMAI- ELECTIONS.
??
i" t
1 ■
If 1
[a.d.
s a
The contention now is, that this coixhict constitute
viohition of thi- (Kith section, not only l>y Spieis, tlic
tavei'ii-keeper wlio solil the ale, Imt also Paterson, who
purchased it an<l j^ave a j^dass to Scott, an«l l»y Scott, who
(Ii'ank the _t,'lass so <;iven
to 1
inn.
Pate
rson, accoi'ilni<f to
this contention, is liahle in two capacities: 1st, as tlir
giver of a glass to Scott; an<l 'Jnd, in di'inking on<' liiin-
.self ; and lastly, Scott, as it is contended, isfurthei' liai'le
n(
>t 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<l of l»ran<ly to he transported ahroad, ami sliiii>
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'<l,
is within .its spirit and intent.
Till' Act of l.s7«{, which makes all violations of the (Kith
section which are connnitt«'<I within the pollinj;- honi-s
to he coiTnpt piactices, does no*^ make anything' to he a
violation of that section which was not so l»efore. The
(|Uestion, therefore, must he considered wholly ii-respec-
tive of the Act of \s7-i, the simple (piestion hei '^f, has
there heeii a violation of the (!()th section of the Act of
IMIN; and if .so, liy whom ;' Assuming for the sake of
arLfument that the .seeon<l l)ranch of this (Kith section has
iiii connection whatevei- with the tii-st, and is to he read
without any li'^ht from the ])revions pai-t, then what the
sif'tion says is, that no s|»irituons or fermented lifpiors or
drinks s/in// he snh/ or i/inn within the limits of such nnuii-
(•i|tality durinj;' pollin<4- day nmlei' a penalty of 8100.
The <|Uestion then resolves itself into this : Is the re-
niver or driid<er of the li<|Uor liahle to a penalty nndi'r
tills section, and also the seller to anothei-, and also the
L:i\ei-. if there lie a person who liuys and ti'eats anothei- '
The etjntention here is, that for every <jfla.ss .sold hy the
tavern-keeper lie is liai-Ie to a separate penalty, and for
tacli Li'lass .so sold to a pei'son who tn^ats others the treater
is liahle to a sei)arate penalty as ijiver, and for each .same
-hHs the drinker is liah'" to a di.stinct penalty. In this
view, assumiiii;' twenty persons to he treated hy a person
intciAciiin,!;,' to jmrchase and yive, the penalties recover-
ahjc under the Act would amount to i-5(i,()00.
The sinij)le answer to this contention, it aj»|)ears to me,
in so fui' as the resj)onilent is concerned, is that no /pid^e
lias any jurisdiction to extend a penal statute ,so as to
create a penalty which the statute' itself has not in expre.ss
tfiiiis created. The statute in its terms imj)o.ses no pen-
ality upon one who receives and drinks; it is said that it
■'linuld he eonstrue(l as doinir so hecau.se that morally tlie
ivcciver is as cnlpahle as the seller and },dver, and that if
tliric Were no one to receive and drink, thore would lie
110 one to sell or i^ive. (I rant this to tlie fullest extent
374
PROVINCIAL ELECTIONS.
[a.d.
i< ' t I.
U i ' i
'tun \-
i V i.ii
3^
With the ethics of the case I aiii not at present conctruet I.
The same may he ami often is said of the receiver of
stolen ;^'Of«ls, yet a receivi'r was never for that reason lialdo
to he indicted foi- the iai-ceny, nor couM he have licii
indicted without a special Act constitntini; the act of rc-
ceivinjL,' a distiiict ott'ence. Then again, it is said that tln'
person who procures an act to he done by another is him-
self a ]irincipal and so liable. That, no douht, is a rule of
law and a very jjfood one in its place, hut it is not of uni-
versal ai)plication. A man who procures anotlier to si-ll
Ids farm and to lend him the money, is not himself the
vendor, nor is the rule of universal application in the ease
of crime. A man who i)iocui'es another to conunit l»iy;uiiiy
is not himself j^'uilty of hi<raniy.
These an<l like su,<;'j;estions are all lost in the consider-
ation that it is impossible for a jud<^e to pi-onounce tliut
to Ite criminal or ])enal which, without an Act of Parlia-
ment, is neither the one nor the other, unless he has tlie
authority of the Le,t,dslature uiKjualiriedly convi-yeil in
e.\[)ress terms for doin^' so. He cannot pi'oceed upon a
sU'T'-estion of constiuctive L'uilt. This seems to jiH'ord a
complete answer to the point, in so far as the respondent
is concerned.
In so far as Mr. Paterson as a giver is affected, I shall
content myself at i)resent with savintj that 1 do not think
the statute authorizes two penalties in the case, and
therefore for this act of In-ating I shall not I'eport liini
as guilty of a corrupt practice within the Act. Whether
oi- not the Legislature contemplated, when passing the
()()th section, to impose a penalty upon the tavern-keepei'
for such a single act as is proved here, may perhaps
be open to doubt; l»ut as he comes within the express
terms of the section, even thougli we should read tlu'
second bi-anch as dependent upon and connected with the
tir.st, I fed compelled to report hin» us guilty.
The result is, that 1 adjudge, declare and determine,
that the said Thomas Scott, the above respondent, was
duly elected as member of the North Kiding of Grey, and
I.s7.-i.]
NORTH OREY.
37;
that the petition aj^ainst hi.s rt'tui-i be ami is luM-cby dis-
iiiisst'd witli costs, to lie pai<l by the petitioner to the
rt'spoiKlent ; and I sliall have to report as <juilty of ;i
violation of the Olst section of the Act of ]Hi')H, iW follow-
\\\<r pcisons, vi/. : Dr. Duncan McCSrej^or, (Jeor*;*- Wri^dit,
.lohn Hill and Edmund Haynes. Some evifh^nce was also
Ljivcn aLjainst one Hutton, hut as he was not caUed him-
self, and his first name did not appear in the evidence, I
jiiii unahle to rep )rt him. I shall have also to report
Thomas Spiers as guilty of a violation of the ()()th section
of the same Act.
The ])etitioner appealed from the decision of Mr. Justice
(jwynne to the C«jurt of A])peal.
The CouuT (ilagarty, C. J. C. P., Stiong, Burton, and
Patterson, JJ. A.), following the judgment in the Nortli
]\'(iit)i'orth crisr (ant)' p. •i4-}), reveivsed the <lecision of Mr.
Justice Gwynne, and held that the giving of the treat hy
Piitcison, and its acceptance by the respondent duiing
l)olliiig hours on polling <lav, was a corrupt practice com-
mitted by Paterson with the knowledge and consent of
the respondent, and that the election was avoided.
The costs of and incidental to the petition and appeal
Were or<lered to l)e paid by the respondent to the peti-
tioner.
(9 Journal Lajis. Assaa., liS7')-(J, p. lo).
376
I'HOVINX'IAL ELECTIONS.
[a.d.
NORTH MIDDLESEX.
Befoue Chancei.loh Si'HA(;(je.
LoMiOX, L'flh, I'llh, Jiith mill JSth Sfiafmhtr, IS7o.
J<tHNCAMEK0X,/V/<7ir;/((/-,V. JollN McDolGALL, /if .s/«//((/t7(/.
Et'ulinct — /'roo/o/hitir — Hriliiri/ — Ojl'i rumnilr in jixt — Miitiii;/ o/ileiiorH
— Triiitinii—l'KHnl riistnw of In at in ij In/ iiiwliilitti.
A witiie88 stated tliat lie liad reeeived a letter fnmi a voter, aHkiiiK f'.i
the f'llfilineiit of an otter as to his vote, Imt tiie letter wan not pro-
tliiced.
Ifilit, that it was not proved that the letter in (juestion was written by
the voter referred to.
On a tliarne that one (). bribed a voter by promising to procure a deed uf
his land for him if he wonld proenie votes for tiie respondent, the
fcviilence showed tiuit tiiouj,'!) the voter had so represented, tiie procur-
ing of the deed had iiotliing to do with the election.
One S., an alleged agent of tiie respondent, made oilers of sheeiiskiiis tti
two voters as to their votes at the election, but he swore the oHi is
Were made in jest ; but a.-? the evidence did not show that S. wa.s :iii
agent of the resp(jndent at the time of the alleged otters, no etl'ect was
given to the charge.
A statement that an otl'er to bribe was made in jest should be receivi'il
witii great suspicion. A briber may make an otter which he iiit^'iiils
should be taken seriously, and then, if not accepted, he may as.sert it
was made in jest.
After the nomination of canditlates on the nomination tlay, and on
another occasion, after a "meeting assembled for the purpose of pm-
nioting the election," and after the business for which tlie elcctois iiail
asseinliled was over, the electors left the building in which thi- nieetiiii:
was held ivnd dispersed to various taverns, at which their veliich iiiul
been put up, and then before leaving for home treated each otiiei' :
and at one of the taverns the respondent himself partook of a treat.
flelil, 1. Not furnishing drink or otiier entertainment to meetings <if
electors within s. (il of the Election Law of 1808.
'2, That the meeting of electors for the nomiuiition of caiulidatus, is a
" meeting assembled for the purpose of promoting the election."
Treating is not //' ;■ .■« a corrupt act, except when so made by statute ;
but the intent of the party treating may make it so, and tiie intent
must be judged liy all the circumstances by which it is attended.
Scmlilf, where it is done by a candidate in order to make for himself a
reputivtion fen- good fellowship ami hospitality, and tiieieby to inthuiKf
electors to vote for him, it is a species of liribery, which would avoid
iiis election at common law.
When the respondent who, in the course of his business as a drover, liad
been in the habit o( treating at taverns, treated during liii cairass.
but to a less extent than was his habit, and not apparently for v'le
purpose of ingratiating himself with the electors ;
Ifi/it, under the circumstances, that such treating was not corrupt, mid
his election was not avoided.
The petition contained the usual charges of corrupt
practices.
IS?:..]
NOllTH MimH-KSKX.
377
Mr. J. K. k'n'r for pt'titioinT
Mr. R. A. Itarrmtn, Q.C., uml Mr. Duncmi MavM'dhiii for
rt'spoinK'iit.
A witnessM, William Strvfiison, \vln» liii"l oH't'ictl one
William Roltson a shct'p.skin if lir wouM stay at home on
iMci'tidii ilay — ri'ferred to in the ju<l^iiient — dniin;,' his
cxaiiiiMation sai<l that Rohson aftei-wanls wi'ote to him
iiskini; for the .sheepskin, hut the letter was not producc'd.
For the deft'ncu a witne.s.s was called to prove the hand-
writiniT of the letter sent to Steven.sctn.
Mr. K< rr ohjected. Tlie letter must lie produced. Kvi-
ijfiice of the lettei- havin"' heen sent was iqven l»v the
petitioner, hut no evidence oi handwriting'.
Si'H.vruJE, C — I hold that it is not proved 1>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.Ljree<l that the action of O'Neil in the procnif-
meiit of the deeds was accelerate<l in consequence of tin-
issuiu",' of process in ejectment. Something,' was said in
cvidciuce of a petition l»eini.( ;jot u[) anions Sullivan's iieii,'li-
l)ors, connectin<;' in some way the application of Sullivan
for a deed with the election, an<l that the neiifhiiois were
led to helieve hy Sullivan himself that Ids interests would
he promoted in the matter of the procurement of the deeil
hy his oi»tainin<,' votes for tht; respondent. That is in
suhstance the case made by the pi'titioner, hut in my
o|)inion tl>e 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, an<l a petition was talke<l of aiiinii<f
them, hut it was a petition to tlie Cana(Ui Company. It
was not su<.5^ested Jty O'Neil, wlio discoura<,'ed the idea,
nor (h)es it seem to liave liad anvthiny; to do with the
election. I sa}' this, discai'ding the evidence of what
Sullivan is reported to have sai<l about it, and about
CNoil's agency in obtaining the deed. Sullivan says in
his evidence, that O'Neil spoke of the respondent as a
good liberal man, or nuiy have so spoken of him. This
was .said to Sullivan, who had not known liim before. It
is C(mtended that I must infer that this ^vas .said (assum-
ing it to have been .said at all) in order to lead Sullivan
to believe that the respondent would be liberal in aidinif
him in money or otherwi.se — I suppose in money — in the
procurement of his deed. It is true that O'Neil inaij have
spoken of the respondent as a good and liberal man, and
in connection with the ol)taining of the deed, and of
l^T.V]
XOHTH MIIM)I,KSKX.
:{7!)
Sullivan i'X('rtin<,' liiinsi'If on his hclmU' in tlu' flt'ctinn.
But this is not [ii'ovcd. Sullivan docs nut sccin to have
,s»ij)])(»sr(l that his su|)|)ortut" tlic iTspondcnt lunl anythin;^'
toili) with the j^'cttin^f of liis <l('t'(l tVom tht- Canada Com-
pany. n«' says he aski'ij only one person to vote for him,
and O'Ni'il savs vc-rv distinctly that his <f<'ttin'f out the
died from till' I'anada (-ompany was piufly a Imsinoss
transaction, of a kind to which he was in the haliit of
attend i n ;5" ; that Sullivan an«l unothei- — one Kahey — tnu-
jijoyeil him foi' that purpose, and for liimself, that he
Went to Toi'onto on liehalf of l)oth, and that Sullivan
|iaid him .*:i'12 for his expenses and trouhle. He denies
\cvy explicitly that Sullivan's suppoi-t of the i-espondent
iiiid anythinjf to d(j, so far as he was concerned, with the
matter, and f thiid< the pi'oj)er conclusion from the evi-
di'uce is that it had not.
I have thou«,dit it well to discuss this (|nestion, as it was
a prominent matter in the investi^^ation liefoi'e me, Imt I
at least douht whether < )"Neil was an ai^'eiit for whose acts
the respondt'iit was responsiltle.
Two direct corrupt acts are char*(ed to have heen com-
mitted l»y William Stevenson, an a^^'tit, it is alleged, of the
lespondent, consistinj^ in the otter to one Georj^e Shihiey
(if a .sheepskin if he would vote for the respondent, and
in the offer to one William Rohson also of a sheepskin if
lie wouhl stay at home on election day. ShiMey and llol»-
son are not called upon this char;^'e, hut William Stevenson
only. Tlie defence is that the.se otiers, which were hoth
made on the same day, were never .seriously made, and
that it was well understood l>y 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,
an<l then, in the event of its not hein;,' accepted, slielter
luniselt* at'tei'wanis with the plea that it was only in jest;
hut lookin;;' at the position of Shildey an<l Kohson, auij
th(! natiiic of the thin<; ott'ereij ami its value— a ilollar or
less — it is proltaltle that Stevenson speaks the truth when
he says that it was hut a jest. The case, howevei, is
• livestetl of all dilKculty l»y the circumstances that Steven-
son was not at the time an a,Lrei»t of the res|)on<lent. Tlu;
matter occurred in the autiuun hefore the snow fell — thy
witness thinks in Octoher ; and it was lonjx afterwards,
and, as tlit; witness thinks, after ihe ])ul>lic 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' an<l consent of the respomli'iit. In; thereby loses his
seat, and is dis(|ualifie<l. Mi-. Kerr's contention upon this
j)oint is, that it is immaterial whether the treating' was
by the candiihite himself oi- by an agent, or by a stranu'cr,
and that the motive and intent are. under the .section as
amended, inunaterial ; that all that is neces.sary to brini^
the case within the .section is, that the treating is to
a meeting of electors, .such as is described in this sec-
tion, and that it is with the actual knowledge uv consent
— which Mr. Kerr reads, knowledge kikI con.sent — of the
candidate.
I incline to agree with this interpretatit)n of the .section,
and in the Dundas ease (ante p. 205) I acted upon a like
construction then put upon it by myself, with this diti'or-
ence, that in that case tlie treating was by an agent of the
candidate, not by a stranger. But I thought in tlie South
I«7j.]
Noinjl MIIH)I,KSKX.
3Sl
KsHi.!- ruse (<itif< |). 2M.')), tliat ncnirtj]it ])ractic(' jjarticiitiitctl
ill liynn aj;»'iit, lirin^r liy liis participation a ])arty tliiTcto,
woiiM avoiil tilt' t'lt'ctioii. This was uinli-r the sccoikI pro-
vision of section (Ki : anil this constinction has now, I
mull rstau'l. In'cn approvcti hy the Court of Appeal, lint
my ilillicully in this case is upon tlie ipiestion whether the
tieatinifs in (|Uesti()n were to iiiei-tin^^s of the electors
witliiii the nieanin;,' of tin- section. I take the ineetinj,'on
tiKiiiination Way anil at KIson's as examples. I take th»'
iiiietini; helil on that occasion (the nomination) to ha\n
Immm a meeting' within the ,s«'ction. The meeting,' at KIson's,
wliile of a ilitlerent chai'actei', was still, in my itpinion, a
iini'tinn' of electors, a.ssenihleil for the purjiose of pl'omot-
iiiLT the election ; and if the treating,' luul het-n, in any
proper ri'asonahle sense, a trciVtii)i(to electors so assemhleil,
I >lii)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
meetin<j;s were in .lainiary, and the weather is di'sci'ilted
to have lieen very cold. 'J'hen there is the custom of the
country — not to lie comnu'nded, hut still to he taken into
account — to take drink in the bar-rooms of taverns, and
to do so in the shape of treating' some or all of those
assenihled with them in tlie room, " the crowd," as it is
so often called. Now, what was donc^ upon the occasion
ill i|uestion was in suhstance this: After the husiness for
which the electors had assenihled was over, they left the
liiiildinjf in which the ineetin<^ had heen held, and went,
some to one tavern, .some to another ; geneially, as I infer,
to tlio.se at which their vehicles were put up, and hefore
k'avin<f for home took drink •n the har-rooms in the usual
mode — that of treating one another. I cannot think tliat
iloinjf this is in any proper or reasonable .sense j,dvinif
ilrink or other entertainment to a meeting of electors
a.ssemhled for tlie purpose of promoting an election. It
I
i ; i
I
1 J ' '•
382
puoviNciAL elections:.
[A.D.
- y.'
) li-i
is indccfl doulitt'iil whether there was treating on any t^f
tliose occasions Uy any agent of the respondent; and it
now ai)i)ears that there was not any treating hy tlie rc-
spontlent himself, l»ut the respondent liiniself partook nf
the treat on one at least of these occasions in the har of
a tavern.
I am not in the least disposed to sanction any evasion
of the law, or to insist upon too rigid a construetiuii nf
the provisions of the section. It would indeed he a liut-
case, if a p vssihle one, that ti'eating should he given litn-
ally to a meeting of electors. It was not so in the iJiimlns
case (ante p. 20.')), in which I applied the Act; hut wliat
was done in this ca.se is not in my judgment within tln'
spirit and meaning of the Act. To apply it to what was
done in this case would he in my opinion straining tin-
provisions of the sections heyond their legitimate meaning'
and intent.
Upon another hi-anch of the case I have entei'tainid
considerahle <louht. It has heen in regard to treating liy
the respondent at various taverns in the c<jurse of his
canvass, which occupied ahout three weeks before the {)oli-
ing day. The respondent is a farmer, and has for the last
sixteen years followed the business of a drover. He says
that it is the practice of drovers to go t<j taverns as thr
best places for meeting with farmers and hearing of cattle
and that he has always heen in the habit of treating at
taverns in the course of his busine.ss, and this is continiRil
by the evidence of other witnesses. He states that when
he liecame a candidate he canvassed personally through
the Riding, and went to the taverns as good places to meet
with the electors ; tliat on these occasions he sometimes
treated ; sometimes friends who were with him treated ;
and the treating was .sometimes by others who were not
friends; and the treating was general to all who might
haj)pen to l)e present. As to its extent, he says it was
much less than was his habit in the course of his business,
not more he .says than one-tifth as much ; he denies em-
phatically that he treated with any view of intiuencing
1S7.^.]
NORTH MIDDLESEX.
.3S.S
vott'is ; tliathf made no «listiiK'tioii as to whom he tivati'tl ;
that he hatl taken h'i;al a<lviee ; that he meant to ol.cy
thi- law. and thought that in wliat lie did he eommitti-d no
infraction of the law. As to wliieh last, 1 wi'l merely
oJPM'rve that if what lie did was really an infiaction of
the law, his being advisecl and his i-ntt-rtaininn' tlu- hclicf
that it was not so, \vould he no excuse in the vyc of the
law. The treating U[)on these occasions stands ujx))! a
.litfnviit footing from meat, iliink, \'e., fuinislu'd to a
meeting of electors, to which I have already adverted.
The law upon this hranch of the case difliTs fi'om the
law prevailing in England in this, that we have not in
this Province any eiiactuu'nt eijuivalent to section foiu' of
the Corrupt Practices Prevt-ntion Act. The Imperial Act of
1S.')4 makes corrupt treating a statutahlc oH't-nce ; treat-
ing therefore — not to a meeting of electors — can oidy he
reached hy the connuon law. and must he of such a
cliaracter as to amoinit to brihery.
It is not contended hy Mr. Keir that the case comes
within the old Treating Act, 7 William 111., c. 4. whicli
t'.iiliiils treating within certain times specified, ■ in order
to lie elected or for heing elected." I do not know whether
it has heen decided that the Ai't is in foice in Canaila, liut
it apjH'ars, as inter^jreted in Ifiif/Ins v. Marshall (2 (". \' .J.
IIS), to lie in athrmance of the common law. i)iasmuch
iis treating " in ordei' to he elected " is only a species of
liriliery. The same may he .said, 1 think, of the Act of
1N.')4, foi' to hring a case within that Act, the tivating
must he with a corrupt intent, ('.c, to inllueiice electors to
Li'iN'e their votes to the jierson treating them.
My douht has heen whethei' the treating hy the defend-
ant in the course of his canva.ss, as descrihed hy himsi'lf.
and to which 1 have referi-ed. dot's not come within the
deiinition of corrupt ireating gi\i'n hy .Mr. .iustiee iJlaek-
hurn in the Wnlliiujford nua {\ ()'M.\' H. ")!•), that " when-
iver a candidate is, eithei- hy himself or iiv his agents, in
any way accessory to providing meat, drink or entertain-
ment for the piU'pose of heing elected, witli an intention
m
f»^
I-
I
fii^^
I!*:
.S.S4
PltOVIXCIAL ELECTIONS.
[a.d.
to produce an eft'cct upon the election, that amounts to
corrupt treating. Whenever also tlie intention is hy such
means to gain popularity ami thereby to affect the election ;
or it" it he that persons ai-e at'rai<l that, it' they do not pro-
vide entertainment and drink to secure the strong interest
of tlie publicans, and of the persons who like drink when-
ever tliey can get it for nothing, they will become un-
popular, and they therefore provide it in order to affect
the election ; when there is an intention in the niin<l
either of the candidate or his agent to proiluce that effect,
then I think it is corrupt treating."
I think that the respondent, in doing what he did, was
treading upon dangerous ground ; Imt l)efore holding that
his seat is thereby avoided and himself disqualitieil, I
nuist be satisfied that what he did was done with a cor-
)-upt intent, and in ju<lging of this, the general habit of
treating in the country, and the respondent's own ])i'actice,
maj' properly be considered. Iti the Kinrjsfon f-a-sc ( post; s.C,
11 Can. L. J. 28), the Chief Justice of Ontario observeil:
" The general practice which prevails here amongst classes
of persons, many of whom are voters, of drinking in a
fi'ien<lly way when they meet, w^ould recjuire strong evi-
dence of a very profuse expenditure of money indrinkinu'
to induce a Judge to say that it was corruptly done, so
as to make it bribery, or come within the meaning of
' treating' as a corrupt practice at the common law."
In the G/cnff((7'ri/ case {ante p. (S), Hagarty, C J., has
referred to the language of English Jmlges upon the
(piestion as to what, in theii- judgment, would amount to
coi'rupt treating. 1 find the case reported in ^Iv. Brough's
very useful little work, " A Guide to the Law of Klec-
tions," at page 21. I (piote from the passages given in
the judgment of the Chief Justice : " In tlie Jjcird/ei/ cnsr
(1 O'M. & H. 1!)), Blacklnii-n, J., says 'coiruptly' means
' with the object and intention nf doinu- that which the
Legislature plainly means to forbid.' In the Hereford rv/.sv
{Ihi(/. p I!).')) the same Judge says that corrupt treating'
means ' with a motive or intention by means of it to [iio-
I.s7.-^.]
NORTH MIDI/LESEX.
3n:)
duci' an ett'ect upon the oloction.' In tlio Lirlijichl msr
(p. '!')) Willt'.s, J., says tivatin*,' is fijrltiddt-n ' wliL-nover it
is ivsorted to for the puri)ose of pan ipering people's appe-
tites, and thei"ei>y 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 a<i;ain, that the treatinj^^ must
lie done ' in order to influence voters ' (p. 2G). And so in
the same reports in the Tainvorih cnsc (p. (S.S)."
The Chief Justice also cited the Curni/ri/ ruse (lhUI.\). 10()),
and the iValliwjfurd case {Ihid. p. oT), in which it was said
liy Blackburn, J., that "the intention of the Le;L;"islatuie,
in construing the wonl 'corruptly,' was to make it a (jues-
tinn of intenti(m ;" also the Brnilfitrd cusr (Ibid. p. :i7),
where Maitin, B.,as to the meanin^L!; of " coi-ruptly," says:
"I am satisfied it means a thing' done with an evil mind
and intention, and unless there be an evil mind or an evil
intention accompanying the act, it is not ' coiru])tly '
done. ' Corruptly' means an act done by a man knowing
that he is doing what is wrong, and doing it with an evil
object. . . . There must be .some evil motive in it,
and it must be done in order to be electe<l. "
Without .suliscril)ing to every woi'd C(jntained in the
jtassages (juoted, they contain, no doubt, upon the whole
a sound exposition of the law.
Tlie extent of the tieacing and the ([uantity of diiidv
^iveu should also be taken into account. It was .said by
Willes. J., in the Liihjiclil aisr .- '-It may be doubted
whether treating in the sense of iiigratiation l>y 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 <jf that
intention does exist, we must, as a matter of coinnion
.sense, .see (Jii what .scale and to what e.Ktent it was douf.'
So Mr. Justice Willes in the Tumirortk vnsr (Ih. ,S8), .savs
that it is "obvious that the Legislatui-e did not intcnil
that every bit of bread or sup of drink given to a voter
in the course of an election should have the etiect of ilc-
feating that election." And the same learne<l Jutlgi- in
the Wcstlniri/ r/tsc (lb. oO), took occasion to explain what
he had .said in a previous ca.se, desiring it not to be sup-
po.sed "that treating by a single glass of beer would not
be treatinu, if it were really u'iven to induce a man to
vote or not to vote. All that he had ever said was that
there was not sutlicient to bi-in<f his mind to the conclu-
sion that the inti-ntion existed to inlluence a man's vote,
by .so small a quantity of liijuor."
It .seems all to come to this, treating is not j)a' so a cor-
I'upt act; the intent of the act nuist he judged of hy all
the circumstances by which it is attended. If in this case
the evidence led me to the conclusion that the respondent
did what he did in order to make for liim.self a reputation
for good fellowship and hospitality, and thereby to intlu-
ence electors to vote for him, I .should incline to think it
a s[)ecies of l>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, <uiil l.tt i>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": lil<e assi.stance from the present
meiiiliers of the Association, and to the perfection of that system a.s
;iii I'lectioiieering agency, the respondeat owed ids election.
Il-hl, that the delegates to the association, acting as such in promot-
ing the election of the respondent, were hi.s agents, for whose acts he
was responsible; and that an act of hrihery committed by one !{., a
delegate to such association, and who canvassed and otherwise acted
till' the respondent, avoided the election.
26
3H8
PROVINCIAL ELECTIONS.
[a.d.
■n t
ki
Shortly before polling day the respondent'H agents issued a circular, the
sul)stiince of which was that they had ascertained upon unddnhtcd
authority that VV., an independent candidate, despairing of tleotioii
himself, was procuring his friends to vote for C, the opposition candi-
date. W. denied the trutii of this report.
J{tl(f, that this was not a " Traudulent device," within the meaning of
sec. 72 of 32 Vic, cap. 21, to interfere with the free exercise of tiie
franchise of voters.
The petition containc'»l tlio usual charge.s of cornipt
practices.
Mr. L' Alton McOrniJn/, Q.C, for petitioner.
Mr. J. I). Armour, Q.C, for resplendent.
Tliere were three candidates — Ferris, Weblt and dwh-
rane. Mr. Ferris was the nominee of the Reform Associa-
tion, and was the successful candidate. A nif,dit or two
hefore the pollin<j; .some letters oi cii'cuiars wei-e sent to
difi'erent leading- men, stating- that Mr. \Vel)b, an indepoml-
ent candi<late, had despairi'd of .success, and wanted his
friends to vote for Mr. C-ochiane, tlie Conservative camli-
date. Mr. Wehlt denied the truth of this repoi't.
The main points disposed of at the trial were (1) as to
the agency of one Richmond, a delegate to the Refm-iii
Association, and an act of bribery said to have beeJi c'i)iii-
mitted by him whereby it was contended the respondent s
election would be avoided ; and (2) as to the eti'ect of tln'
ciicular as to Webb's alleged resignation, spoken of ahovc
which it was said was a fraudulent device to intlueiici'
voters.
ChVYXNE, J. — The evidence establishes, beyond all doulit
in iny mind, that it is part of the constitution and organ-
ization of the Heform Association in this Riding (whusi-
candidate the respon<lent was)that the delegates to the cuii-
vention, consisting of ten persons from each township ami
five from each village municipality, .should, so long as tlioy
might remain in otiice — that is, until displaced by other
delegates — act in promoting the election of the candidate
adopted by the convention, in all respects and in the isaiiie
manner as persons appointed agents by candidates aie in
the habit of doing for that purpose ; that the candidate
Ls7o.]
EAST NORTHUMHEHLANl).
S.S9
l()ok('<l for, expi^ctt'd ami deinaiKled such their assistance
ami ai,^'ney to carry his election, and "nat in consecjuence
tlaTfot', and Itecanse of the perfection of the orjL,'JUii/ation
iis a canvassing and general agency toconihictthe election,
the candiilate chosen by the convention appointed no
fitfent of his own, but used those provideil by the organiza-
tiiiii. The evid(ince also establishes that the i-espondent
was for six years himself a delegate — that he was well
aware of the nature of the organization — that as a delegate
lie canvasseii and acted for other candidates in the prouio-
ti()n of tlu'ii' election, and that he expected and demanded
like services from ail the delegates, to be rendered to him
upon his candidature ; and that to the perfection of that
system as an electioneering agency the respondent owes
Ills election.
The evi<lence in like manner establishes that Cyrus
Kicliinond was a delegate — that he was a supporter of
tlic respondent in the convention and voted for his can-
ilidature — that, although perhaps not very active at first,
he worked for the respondent to pi-omote his election in
canvassing for him, ariunging for the 1 n-inging up of voters,
ami otherwise as is customary with nominated agents,
and that the respondent, as the nominee of the convention,
expected and claimed to be entitled to such his suppoit
ami assistance.
rndei- these circumstances, I nnist hold that Mr. Rich-
mond wasa jierson for whose acts the respondent is i-espon-
si'il \ li is said tliat the organization is such, in ex])ress
U" - . • at the candidate shall only receive the assistance
I' ill viHlegati's as conunitt<H!-men on his behalf in all
liii.li that are legal. That is precisely the authority
^iven to all election agents. No man appoints aiK)ther
his agent to do an illegal act; he ap|)oints him ordy to <lu
legal acts ; but if, instead of confining himself to such,
he does illegal acts amounting to bribery and such like,
the candidate is responsible.
The tiist (juestion tlien to be decided is : whether or not
Cynis Richmond did make to Ai'thur Lyndon the offer <jf
^ , ^i
I i
m
)ii
11 " T^ ■ !
890
PROVINCIAL EI.KCTIONS.
[A.I..
a IiHIh', which it is charj^t**! that he diil luakc [Tin
lcai'iu'<l .Jii»l<r«', at'tci" <U.sens.sin<,' at h'lij^th the cvidi'iicf mi
this j)oint, ^h^cidtMl that an act of biihcry had liei-ii coiii-
iiiittcd l»y Richiuoud, and on that ground <k'cliiivd tin
election void.]
As to the other point laised, namely, the issniiiH of tin
ciicidar on tlie Satui'<lay niglit preceding th(; [milium; .lay.
there is no doul»t in my mind that all the j)aiti»'s to the
issuin<^' of that circtdar were persons who, e(|iially with
Richmond, who was himself one of them, must for tlic
same i-eason l>e 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 l<i 1 .'tli ./il/i/, ililil I7tll
Si/t/iiiihi'r, IS!'.').
BeFMUH the ColHT (»F Al'I'K.VL.
Ti>K(»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/ /<// r'-ijmmli nt in <inn/i' ni'ttiii'i fur un Injiiri/ tn n
riifir's irij'i — Jiiijili'd kiioii'liilijr Inj rninliiliili- o/ injiiifi* iicfs of liriln rif
- A /i/it-al.
One L., ;iii iillej^i'd agentof tlio respoiidunt, wtMit into the tavern of one I).
iliiriiij; ])iilling luiiirs oil polling; ilay, ami i»iiiclia.seil spirituous li(|Uor,
with wiiicii lie treateil liiiiiself ami several ]M:rsoiis tiien.' present.
//'/(/, III i-(lirifiiii! , .]., tiiat the penalties provided liy s. (iti of tlie Kleetion
Liiw (if 1,S()S apply only to the tavern-keeper, wlio a.s such is atile to
iiiiitrol what is* ilone on his own pit-mises in violation of the Act, ami
tiiiit tile treating hy L. was not a corrupt practii*;.
/'■/• Itni/iii; V. .1. A. - 1. That .section tlH of the Klection Law of 18tiS
iiiu,-.t lie construed distrihutively.
-. Thiit under the first part of the .section the tavern-kee|)er is the only
liersdu who "an incur the penalty, for not keeping his tavern closed
during the prescribed time.
'!. i'liat under the second part of the section, the persons who incur the
penalty are (1) the tavern-keeper who sells liipmr in violation of the
statute, and (2) the purchaser who gives the liijuor purchased hy him
t(i persons in the tavern.
Tile wife of one S., a voter, had been injure<l sfjnie years before the elec-
tiiiM liy the horses of the respondent, ami in 187- the respondent gave
>>. 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, ien<lert:il im-
probable the fact of the respondent's actual knowledge of such bribery.
Per Hifjixtii-, .1. — That if an act, made a corrupt jU'iictice l>y .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 <motin«; tlit^
(iiitli section of tlu> 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'e<l.
It' then it he, as it appears to me to he, impossil)le that
ci)j section shouhl he construed literally, we must, inoi-der
to construe it in the sense intended by tlie Legislature,
endeavor to ascertain wnth what ohject, and in oi'der to
i.niard against what evil this section was enacted. And I
confess that the difficulties .suggested against consti-uing
the section as containing two .separate and indepenihmt
offences, appear to me to be so great as to involve the
necessity of excluding such a construction, and of I'eading
the .section as detininj; one otfenco to the conuuittal of
which the prescribed penalty is attached.
The prime object of the Act, there can be no douV)t, was
to secure freedom and purity in electic^ns. Tlie particulai-
section in ([ue.stion is placed undei' the heading, " keeping
the peace and good order at elections." The givim^' spirit-
uous li([Uor dii'cctly, for the expi-ess purpose of obtaining
a vote, or after a vote was given, in pursuance of a pro-
mise made in order to oV)tain the vote, is sufficiently
Ijnarded again.st, independently of this section, as an act
of bribery. The indirect influence which miixht be oxer-
cised by the providing any species of entertainment or
drink, whether previous to or during the election, to any
meeting of electors assembled for the purpose of promot-
ing the election at any place except the entertainers own
private residence, where such entertainment is permitted,
:V.H
I'ltOVINfi.vr, KI-KCTIONS.
[.v.n.
i ■■•
and tilt' |>ayill^^ •»!• 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
obtained at the hotels, taverns, and shops where thcv an-
oidinarily sold, that much drird<inji; iin<,dit he indulye(| in,
which the [)arties pai'takinLj of should themselves ])ay toi',
and which mi^ht injuriously ati'ect the freedom and |)Uiitv
of the election, and from which hloodshe<ldin<f riots ainl
other hreaches of the peace might ensue. Therefore, t'oi'
greatei- caution, and with a view to securing that thr
election shouM l»e unintluenctfd hy any cause arisitig frnm
the use of spirituous li<|Uors at any <>f those places diu'iii<f
polling day, this section was passed with the intent that
"e\ery h(»rel, tavern ami shop, in whicli spirituous or fei-
nu-nted li(|Uorsait' ordinarily sold, shall l»e .so closed duriii^
the day appointed for polling in the wards or municipali-
ties, that no spii'ituous or fei-mented li(|UorH .shall he soM
or given to any person within the limits of such iinmi-
cipality undei- a [)enalty of .SI 00 in every such i-ase.
That is to say, in every case in which any such hntd.
tavern, oi- sho[»-keep«'r shall, in violation of this section,
sell or give such sjnrituous li(|Uors or drinks, or ]>eriiiit
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'<fisliiti\ »•
AsM'iiilily, aiul of liciii;,' rcj^nstt'iftl us a voter, and of \ otin;;-
at anv election, and of lioldin''anv otlice at the nomination
(»f tlie ( 'idwn, or of tlie Lieutenant-(}ovi'i'nor, i>i Ontaiio, or
any municipal oflic*'. Still two ([Uestions remain : Firstly.
i^ Laikin also <fuiltv of a violation of the .same (Kith sec-
tinii within the meaning of that section i And .secondly.
ii^sMiiiinj;' him to he, and that he was an aLfeiit of the
iv-ijKiiident, is the hitter's ek'ction thei'ehy avoidetl :" The
answer t(J the Hist of tliese (|nestions depends upon thi-
<(»nstructi()n to he put U[)on the (idtli .section referred to,
and to the latter upon tin; construction to be put upon the
:\vi\ section of tlie Act of l<S7."i. The (i(ith section undouht-
tilly says that no spirituous or fermented liquorH or (h'inks
>liall lie sold or {,fiven.
Now in the ca.se in (piestion, certainly in one .sense, l.av-
kin. us the pecson treatinijf Mc('lellan<l, Lavelle, and 'l'<idd,
may he said to he tlie <,dver to them of the (h'inks which
Doyle sold and for which Larkin paid, hut it is contended
that the .section is pointed a|,aiinst the hotel, tavern, oi-
sli()p-keep>er, 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 <jfla,ss J)oyle is guilty of a violation of the
section, and for that glass, for the sale of which Doyle is
icsponsilile and liaV)le to be di.sfranchi.sed for eight years,
it is contended that Larkin cannot also be made respon-
sil)k' and be .subjected to the like penal con.se(juence.s as
Si
i
■I
8<)G
PHOVINCIAK EI-K('TI()NS.
[a.d.
<^ivoii within the incaniniif of tlio Act, inoi-oly iHJcausc h,.
pays tho price instcu"! of Ijiivt'Ilc. So if a sliopivccpcr
liciMiscd to si'll Ii(|noi'.s soils u flo/cii of wine to A., who
huysitfoi- the pui'j)ose of Ix'iiiif sent, and oi'diM's the veiidor
to send it, to H., a poor friend of A.'s unahle to pay for it
himself, although this l>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<l who have it in their power to control
wliat is done there, then the words " sold or o'iven " nuist
he limite(l to tlu> 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<ling as
clau.ses relating tt) the " kec^ping of the peace and gooil
order at elections, in the Con. Stats, of Canada, 22 Vic.
cap. (J ; the 8 1st .sec. of which Act, corresponding with the
()()th section of the Act of 18(58, enacted that " every hotel
tavern and shop in which spirituous or fermented li(|Ui)rs
oi' di'inks are ordinarily sold shall be closed during the
two days appointed for polling in the wanls or munici-
palities in which the polls are held, in the .same manner
as it should be on Sunday during divine .service ; and no
.spirituous or fermented liquors or drinkj .shall be sold or
IS?'..]
FJNCOLN.
:V.)7
n-ivcii dm-iuf,' tlu' said porioil un<l<'r a |)»'iialty oi' SIOO
iiLraiiist tlu' kcH'pcr thereof it' h<! nrnhjcts to dose it, aixl
imdcr a like penalty it" ho soIIh oi- i,'ivt'.s any spirituous or'
tVriiit'iit«'(l li(|uors oi- drinks as at'oicsaid. "
What was meant hy tin; \voi-<ls in tliis stM'tion, " in tlit^
suiiic manner as it should Ix; on Suriday duiin^' <livine
.service," is not very eleai', f<ir the'i'e was no law that I can
tiiul then in Uhta' in ('anada preserihin^' the duty ot" hotcd
and tavern-kee})ei's to keep their houses closed in any par-
ticul'ir manner dui-in;^' diviiK; seivi.vi on Sunday. [The
learned Jud^'e leferred to various statutes on this subject,
viz.. Con. Stats. L. C., c. <), s. 27; //»'''. e. 22, .s. r, ; Con.
Stats. U. (,'., c. .')4, s. 204; Imp. Stats. :i (ieor^e IV., c.
77; !) (i(!orge iV., c. 01 ; H and 12 Victoria, c. 40; and
pi'oceed mI :] But none of thos(! .statutes whieli liave !•(!-
t'ereiice to the peiiod of " divine service on Suinlay " had
ever any force in Upper Canada, ami it was di'iid<ing
spii-ituous li(|Uor.s at the places which constituted the
otience, during the houis of divine s(M'vi(!e on Sunday.
It is ditlicult, therefore, to understand what the Legisla-
ture of Cana<la meant by the 8lst ,sec. of 22nd Vic, cap
(), whicli in plain terms enacted two penalties against the
innkeepei' — the one for )ieglecting to " chjse liis hotid or
tavei'u in the .same manner as it should ' > 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 permitte<l at the hotel or tavern, 1 fail
to be able to see, and it .seems to nie that it was most pi-o-
bably this difficulty which induced th(.^ draughtsman of
the Election Law of 1808 to strike <nit these inettl'ctual
words, and .so to amend the section as to do away with
the double penalties, and to enact a single ofi'ence with a
It
1
r
i|i;
l;lit^
ill
1 '
3 ' '
i)»
1^
U'
1 1\
398
PllOVINCIAl. ELECTIONS.
[a.d.
single penalty, which in my opinion is what is done liy
the 6()th section, which »jffence consists in the sellini,' or
givinjj^ spirituous or fermented licjuors or drinks at any
hotel, tavern, or shop in which spirituous or fermented
li(juors or drinks are ordinarily sold. The word drinks,
used in the Act of \HCiH, and in 22 Vic, cap. 0, seems to
me very plainly to indicate that what the Legislatiue
desired to jfuard aijainst was that general hahit of " diink-
ing spirituous liquors " so connaon at elections, and which
was so well calculated to tend to lireaches of the peace
and violation of good order at elections, which it was the
object of that section of tlie Act, from which this (ilith
section was taken, to maintain. But it is further to be
observe<l that in all the above statutes in which I find
any reference to the words " during the hours of divine
service," and especially in the 22nd Vic, cap. (5, it was
the .proprietoi- of the hotel, tavern, or shop where the
spirituous or fermented licjuors or drinks are ordinarily
sold, and who as such is able to control what is done on
his own premises, that is made guilty of the ofi'ence, and
upon whom the penalty for any violation of the statutes
is imposed.
In my judguient, the ()6th section of the Act of IHGS
was not intended to have, and has not, any ditlerent eliect
in this respect, and such person is, in uiy opinion, the only
person who can be pronouneeil to'l)e guilty of a violation
of the statute, and liable to the penalties which it im-
poses, and consequently he is the only person who, in the
terms of section 1 of the Act of 1<S73, can l>e said to be
guilty of the corrupt practice which that statute declares
a violation of the (lOth section of the Act of 18(j<S, within
polling hours, to be.
It was the retailinu' of drink, and drinking in such a
manner as was calculated to affect the purity and freedom
of election, which was the evil intended to be guarded
against; and the Legislature, in my opinion, have deemed
that oltject sufficiently attained by making the proprietor
of the hotel, tavern, or shop where the spirituous licjuors
isT-V]
LIXrOLN.
;i!>9
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,
an<l the puichase of the dozen of wine at a shop, that not
only the seller is liable, hut also the person who pays the
inice, and assuming the latter to he an agent foi- pro-
moting the election of a canditlate, will the candidate, if
fifcted, forfeit his seat by reason of such act within the
tmaning of the -Snl section of the Act of LsT-i the first
suli-section of which enacts that " when it is found upon
tlie repoi't of a Judge upon an election petition, that any
corrupt practice has been connnitted l)y any candidate at
an election, or by his agent, whether with or without the
actual knowledge and consent of such candi<late, his elec-
tion, if he has been elected, shall be void." If a person
who is a candidate choose to aj)point as his agent a hotel
oi taveiii-keeper who has an independent inteivst of his
own in violating the statute, ami whose violation of it
may, as it certainly might, lead to violence endangering
tlif fi'eedom of the election, it would l»e plainly proper
tliiit a candidate who appoints such a [-erson as his agent
should have his t'lection avoided, if his agent should so
coniluct himself in plain contravention of the statute, and
we should not stop to iiKpiire whethei- the violation of
till' statute did or did not in fact atlect the election. It
is sutHcient that it was well calculated to do so. And it
was because it was %\ ell calculated to ilo so that the section
lirohibiting such practices, and that pronouncing them to
hi' (•on'Uj)t, were passed. Hut it seems to lie (piite anotlu'i'
tl:ing wliere an agent, not himself a ta\ ei'n-keeper, and
li.'ing in need of refreshment, gnrs to a ta\'ern, ainl bu-
t!iut pur[)ose buys there a glass of lieer, wine, or other
ii'iuov foi' himself, and at the same time ti'e!>ts 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 1<S71 had enacted that, where it is found by the
report of the Judge upon an election petition un<ler the
Act that any cori'upt practice has been committed by or
with the knowleilge an<l consent of any candidate at any
election, his election, if lu' has Iteen elected, shall be void,
and he shall during the eight yeais ne.xt, after the date of
his lieing so found guilty, be "incapable of being electt'(l
to. and of sitting in the lA'gislative A.ssembly, and of
being legistered as a votei- and voting at any eh^ction, ami
of holdiu'r anv office at the nomination of the Crown,
or of the Lieutenant-CJovernor, in Ontario, or any uui-
nicipal office."
It might perhaps have been held under this section,
])rior to the passing of the Act of 187-?, that a corrupt
practice connnitted by any person should avoid a can-
didate's election and subject him to disqualification for
eight, years, if connnitted with his knowledge and con-
IMw
187.').]
I.IXCOLN.
401
sent, for tlui only practices which were coi'rupt within
the piovisioiis of the Act of IMCi.S, or the eoininon hiw
(if I'jirlifimeiit, were such us werc^ directly or indirectly
(lone l)y the cundi(hite himself, or l>y 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 <jf
coiriilit practices connuitted 'y the can<lidate liimself oi'
by his a^^ent at the election, while the 2ii'' sub-section
ileclares that in addition to the av(jidance so (h'clared l>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<late shall a\'oid the
election, as the 4()t]i section of the Act of 1S7I liad done ;
it simply annexes to the ax'oidanee of the election, which
the first ,sub-.section ivgidates an<l declares. discpialiHcation
if the act avoiding the election (wliieb i ,in only be the
net of tlie candiilate or his aucnt) be done with his kn(»\\ -
ledjfe and consent; tlie whole section taken together
enacting that any corrupt pi-actice committed by a candi-
date at an election, or by his agent, .shall avoid the elec-
tion, whether done with oi- without his knowledge, which
w(»rds can only refer to the acts of the agent, l»ut if done
by him.self personally, " or with his knowledge or con.sent"'
(which words must also be held here to refei' to the act of
the agent, to be consistent throughout, for no other act
402
PHOVIXCIAL ELECTIONS.
[A.D.
r
ii:
H\
hut tliat of the can<li<lat(' oi- his at^ciit avoids the elec-
tion), (lisqualitication also shall I'lisiic in ailfhtion to tlir
avoidance.
Now the avoidance of a candidate's election bein;-- con-
fined to the acts of himself or his agents, what aic the
acts of an agent within tlie meaning of these word.s in the
section, " connnitted by any candidate at an election, oi' by
his agent ?" The first section of the Act of l(S7-i adds to
the category of coi'i'upt practices the violation of the ()(Jtli
section of the Act of l(S(i.S. This violation can, in my
judgment, be connnitted oidy, as I have said, by the
keeper of the hotel, tavern, or shop where spirituous
li([Uors or drinks are ordinai'ily sold, l)ut such violation
of the section nuiy be connnitted by a person who is an
agent of the candidate, in such a manner as to have un
I'eference whatever to the promotion of the pui'pose fni
which the agency was create<l — in such a manner as in
no possible v/ay to be capable of having any effect what-
ever on the election ; as, for example, where a candidati.
and a friend find it absolutely necessary to take the re-
freshment of dinner at an hotel, and at the dinnei- ) aitake
of their usual reasonable <[uantity of lieer or wine — it
may be one or two glasses, supplied by the hotel -keeper
as pait of the dinner — can it be that the Legislature con-
templated not only avoiding a candidate's election, but
also of disipialifying him for eight years, because (admit-
ting, for the sake of argument, the hotel-keeper, within
the rigid terms of the biith section, to have been guilty of
its violation) the can<lidate partook of the refreshments
so su{)plied, or [)aid foi' what was su[)plied to his frien<l,
and was, so far as such act could nuike him, a consenting
i^n.rt '' 'o the violation of the Act by the hotel-keeper. Thf
\S':\ii {.!■ n does not say that any person consenting tn
,. h )fi .t'per or other i)erson violatino- the ()()th section,
'"^ ' 'y If be guilty of a violation of it. 1 nuist say
tiiat, t>> 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 <lo viohjiice to conniion sense ant!
tn work injustice.
The sinsihie construction then of the 'ht] section of *he
Act of iST'i, which fleclares the election to he avoi'ied ])y
tlie coi'i'Uiit act of the candidate's a^'ent, seems to me to
li' to confine its opei'ation to such acts as are ilone hy the
a^vnt — I do not .say within the .scope of, hut in the course
of or I'xcit'ise of tlie ai-vncy, an<l in the; pursuit of the
Dlijict of tlie au'enc}' — acts done as specified in the (i7th
.section of the Act of iNdfS, directly or indirectly hy the
candidate himself — some act doni' with a view to [»ro-
iiintiiiL;' in some way tlu' ohjects of the principal, and not
to extend to acts in whii-h the princi[)al is in no way con-
cerned, and which ai'e done not with any vi(,'W to his
interests, or to the ohject of the agency. Such acts nre,
it is ti'Ue, the acts of tlie person wIkj is au'cMit, hut they
arc Hot tlie acts of the ai;'ent '/if agent. In some cases a
i|Uc^iii)ii may sometimes arise whether or not the act of
the ageut, which is relied uiion as avoiding the eleeti(ai,
was done hy him (ji'n agent, that is to say, in the pursuit
ef tile ohject of the agency, and with a \iew to the in-
terests of the pi'inci[»al: in such ca.ses justice will he done,
and the pui'ity of election secured hy determining the
point in douht in favor of avoidance, hut if, heyoml all
t[iU'>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 1<S7.*}
I am of opinion, therefore, for all of the al)Ove reasoiw,
that tlie respondent's election cannot he avoided for tlic
treat referi'cd to as given by Larkin at Doyle's hoti'l,
althoni^h Doyle inidouhtedly was ynilty of a violation of
the (i()th section of the Act of ]H{')H, and thei'eby of ueoi-
rupt practice within the meaning of the 1st section of the
Act of 187-3, and is liable t<j l»e made amenable, iukIci'
that section, to all consecjuences of having coniiuitted a
corrupt practice.
The learned Judge having, on the other evidence in tin-
case, found that the respondent personally, and liy his
agents, wit-n his knowledge and consent, was guilty nf
corrupt practices, the res[)ondent appealed to the Court
of Appeal.
Mr. RoJnnsoii, Q.C., ancf Mr. Bdhiine for the appellant
(the respondent to the petition).
Mr. J. A. Miller for the respondent (the petitioner).
Draper, C. J. A. — The only reason given for the api^'al
in this case is as follows : " That there was ncjt sulKcient
evidence of cori'upt practices having been connnittcil liy
any agents of respondent, or by the respondent himself,
or by and with his actual knowledge and consent, to w ar-
rant a judgment voiding the election herein." The judg-
ment was that the respomlent was not duly elected — that
the election was void " by reason of corrupt practicts
committed by himself personally, and by reason of otlu'i'
corrupt practices committed by his agents with his know-
ledge and consent."
In the outset, I must say (speaking for myself only) that
I entirelv concur in the introductory observations to the
iudgment delivered, to the effect followin<T : " The ditli-
culty which I have experienced in evolving truth tioni
the greater part of this mass of evidence has lieeii great
beyond what can well be conceived, arising from the fact
i''''ywfT'^''''^mmw
1.S7.1]
LINCOLN.
405
that the mannor in which many of tlif witiK'ssos jjavo
tlii'ir t'vidonco — wlio from their intimate coaneetioii witli
tlie res|)()ii(h,'nt in his husiness n^hitions, und in tlie con-
nection with tlu' canvass on his behalf, shonld i'easonaV)lv
1m' ('X|K'cte(l to be able to place mattt-i-s in a clear light —
has left an impi-ession on my mind that their whole object
was to suppress the ti'uth."
Apart from the weight to wliich the opinion of the
IciuncMl Judge is entitled, he having heard tlie whole evi-
dence, and having liad the fullest oppoi-tunity to notice
the (K'Uieanor of each witness, his manner of giving
fvidence, whether serious and considered or otherwise ;
and having myself repeatedly gone over it to compai'e the
statements of tlie witnesses, I fetd it my duty to say tliat
I recognize the justice of the censure tlius passed upon no
inconsiderable portion of the testimony; and sevei'e as the
comment undoubtedly is which the learned Judge felt
liiiiiself called upon to make in regai-d to tlie evi(h.>nce 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<l C(mHdential
clerk of the responrlent. Mr. Norris says : " There was a
discussion that evening wliich would lead to the I'ccpiire-
iiieut of money. They spoke, I think, of money beijig
used against thein. The party said .so., .... The
' inipi'ession among us was that money was lieing used
again.st us, and we spoke of using money to counteract it.
We decided not to use any money." That same evening,
40(5
IMloVINCIAr, r.I.F.CTloNS.
[A.I.
I ^
at a latt' hour, Rohci-t McMuu^li ami llu'^li Hji-an li't't
St. ('atharim's. Tlicy ilrovc to Clciiit'iils, tin- |)iistiiiM^(fi',
ami with him wi-iit to scvri-al liouscs. The i-Nidniw as to
the at'ts of sonic one or other of thciii is (|uil(' suHicitiit
as a^'aiiist thciii to sustain the charu'c of hrildni;' voters.
Whether the evidence, on a consideration of the wliolc
ca.se, will hrinu' tlie respontlent within the scope of siih-
sec. '2, .st'C. o, of o(i \'ic., c. '2, on the uround of c(inii|it
pi'actice coniniitti'd hy and with hisa<'tual kuowledLi'e niiil
con.sciit, is a (|uestion which will lie more conxcniently
dispo.seil of after other cases have lieen stated and re-
marked upon.
The casi' of treating,' ilurin^' [)ollini;" hours in a tavern in
the town of Nia^'ai-a, hy ^'iviuLi,' spii'ituous li(|Uors which
were drank in the tavern, calls for an inteipret.ition n|'
the ()()tli sec. of t1u> 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!<l foi- polling in tlu'
wards or municipalities in which tlie polls ai-e held, in tlic
.same manner as it .should he on Sunday •luring divine
sin-vice, and no spiiituous or fermented li(piors or drinks
shall he .sold or given dui'ing the .said |)eriod, undei' a
penalty of SI 00 against the keeper thereof if he neglects,
to elo.se it, and uiuler a like penalty if he sells or gives
any spirituous or fermented litpiors as aforesaid."
n
lf>7'j.J
IJN<nLN'.
407
It is, as I »iii<l(M'stan<l. contt'iiilfd that the cliaiiuc of
Imiihumi,'!' ill the lattci' Act, omittiiii;' tlir special limitation
(if tln' [iriialty to " tlii' k.'<'|»T tlicifot'," makes MO tlilliM-
iiice ill the construction, aiwl that the otU'iice which snlt-
jicts to the |)i'nalty can only he comiiiitte(l l)y tlie hotel,
t;i\('in, or sho|) keeper, iiiuler the present statute, which
I >liall 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, <lelivered hy Lord .Mansfield.
The point decided was that where a statute iin[)osed a
penalty upon a man for exorcising his ordinary calling
oil the Lord's day, he could commit hut one oti'ence on
tile same day. As regards the form, it can make no dif-
4()S
I'UOVrNCIAL KI.KOTIONH.
[AJ).
S 1
t ' 1
fci'ciiec that (jur statute is iiiunilatoiy, onlciiun' that thi-
house, (Src, he k»'pt closed, whih' in the hjij^dish Act it is
pi'ohiltitory — " No tradesnian oi- other person shall <l(> 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 <Iui'ation, and so whetlier it
consist of f)ne or a nuudier of particular acts." In that
case the act complained of was exercisinj,' his ordinary
callinj^ by selliui;' hot rolls of hread. That was the iiioili'
in which the ordinary callinj.,' was exercised. The stllin^r
hot rolls was not ])i'oliil)ited, the exercise of the ordi-
nary eallinn; v.'as. In our case the Le^^'islature liavc nut
sto[)ped short at commandiiiLf tliat thi' tavern should he
ke[)t clo.sed, they have also ])i()hil)iteil two other distinct
matters — sellinif and <i;ivin«4' li(juor, kv. The first is of
a character whicli falls directly within tlie pi-ineiple of
Crcpp^i V. JJardcii — ouly one sucli offence can he coinmit-
ted on the same day ; the second, forbidding acts wliicli
may l)e repeated a^'ain and a^ain witli or to different iii-
<UviduaIs all day lon<;" — and they liave imposed the pen-
alty in cvcvj) such c((si:
It appears to me to follow that the keeper of the hotel,
tavern or shop is the only person who can incur a penalty
foi' not keepino- the same closed durin<^ the day appointed
for poll i no-.
The violation of this (iOth section is made a corrupt
practice by -SG Vic, ca]). 2, s. 1, provided sucli violation
occurs "during- the hours appointed for polling." The
reason for a difference l)etween the (KJtli section and tho
1st section of lU) Vic, cap. 2, is not very obvious; hut
for some cause penalties are imposed by the one for
any violation of its provisions during the da// appointed
for polling ; but to constitute the same violations coi-rupt
practices, they must take place " duriiig the Ao/'.rs appoint-
ed for polling." With that exception, the offences remain
I7«';» vw^
•T"
IN?:..]
LINCOLN.
409
as ilfliiit'd in tlif (ilitli scftioii, and t'ur tlic |»ur{)()S(' of iiii-
iiiisin^ tilt' ]icMalty tlicro is no t'lian<,'t'. Tin' lit'^^isiaturc,
IioWfVtT, aiipcar to liavf taken a iiioiv siTioiis view of
these otl'ences than they <liil when the Aet of iHd.S was
niissetl. Thei'e may have heeii a necessity I'oi soni(» j^reater
nimislinient than a mere peeuniary penalty to check tlie
uiuliiiiinisluMl practice of haviiiLf tavei'iis open on pollini^'
ijjivs, (^r of sellins.,' li(|Uor or treatin;n' on those days, and
lii'iice the additional pi'ovision in the .'{(ith Victoiia.
l)Mt for the woi'd "tfin" I mij^dit havi' thoni;ht the
wlinle section (iU was contineil to the kcej.ers of hotels,
tavei-ns and shops. But lookin^^ at the ohject, viz., " keep-
iiiLC tlie peace and <,'ood onler at elections," and the pro-
hiliition to////% as well as to sr//, I think that would Ik^
too nanow a consti'uction ; and I am of opinion that any
|)iis()ii who dui'ino' the day a|)i)ointeil for jiollint; shall
nive any spirituous or fermented li(pior or drink to any
otliei- pei'son within a hotel, tavern or shop in wiiich such
liiiuors or di'inks ai'e ordinarily sold, in tlu^ wards or
iniiniripalities i)- wliicli tlie polls ari^ held, is as <fuilty of
a violation of the section in (piestion as the keeper of
siicli .'stalilishmeiit would he who himself should o;ive the
rn[Ui)r. If it was intended to limit sec. (io to the hotel-
keepers, &c., by the pi'o\ision that no spirituous or fer-
mented li(iuoi's or drinks shall he sold or jfiven, it would
have lieen UiUch simpler to liave said withiji his hotel,
etc., instead of Avithiu the limits of .such municipality,
and simpler still to have .said, and no keeper, etc., of any
such hotel .shall sell or give, etc.
The peculiar form of expression tends to show that the
hL'i;'islature intended to prescribe oiu' thing-, i.e., keeping
tlie hotel, etc., closed ; and to forbid anothei', i.e., selling-
or giving li(pior, and to impose a penalty on every person
who neglected to obey the one, or who acted in defiance of
the other.
As the tavern-keeper, etc., wdio sells in violation of the
.statute conunits an offence, so the purchaser is equally
V.
410
PKOVIXCIAI. KI.KCTKiVS.
[a.d.
i
h^ii
^5
'\
)>)
,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, an<l in my view of the hiw lie was L;iiilt\-
of a corrui't i)i'}ietice in treating;' at Doyle's. Tlic Iraiind
.liid^e, aftei a very elahorate eonsidei'ation of tlie stanur
and or otlier authoi'itii-s wliieh he Ikis referreil to in ic-
latioii to the (inestlon, hehl that tlie election eo'ihi not he
a\'oi(le<l for this ti'eat, and the petitioner has not appfalnl
ai^ainst that deeision.
The case of W. \\. Stewart {the "olored man) icinaiiis
to he coi'sidei'ed. I'^pwards of tw( y-'ars licfMre tlie drc-
tion a jiair-of I'esjiondent's horses ran o\cr Stewarts wife,
an<l one of her le^'s was hi-okeii. She was laid up tni
<'ii;lit months in conseipience. xVt that time Sti'wart was
indeht' d to the respondent, and the ileht was written oH'
in the n^sponilents mill hook. Mr. ,]. \V. Kini;' n'ave this
account of the matter: " Mi'. Stewai't had no le^-al claim.
It was an act of charity to pay him what we did. it is
two years since we paid him, whatever it was. It wa^
L;iven as a little j)resenton account of the aHlietion. .Viiil
on the 'l'-]vi\ Noveniher, 1S7'2, Stewart signed a reefipt in
presence of .1. \V. King as follows: " Recei\<M| I'luiii S.
Neelon the sum of fifty-four dollaivs and sixty-si.v cents,
ill full of all accounts or claims whatsoever." Ahout a
week hefore the election now un<ler consideration, the
respomlent, havin,i;' a[)parently heard that Stewart or lii^
wife (Vere dissatisHeij, sent his salesman, Sistt'rson, to see
her. She i "'d him she was not .satisfied — she did not think
respondeiiL had done her justice. After the election she
came an<l saw the resjjondent, and he told her he \\<ni\i\
i;-ive her s;>0, 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()ul<l nice to liiisc y<»vi witli iin' ;it tlic i'lrction. "
Stewart n'[tli('(l lie could not vny well lie with liihi Im.--
causc lie, i-csjiondt'iit, 'id not u'ivc what Stewart thouulit
wei'e the daina^'es ihie to his wife. 'I'liat lie told respond-
ent he had not done luni justice, and that respondent said
if lie had not doni.' what was rieiit, he was alile to make
it rin'ht- Itcspondent did not say anything' ahont his
(Stewart's) vote, hut he toM more than one time that he
would like to have Sti'wart with him. Daniel Stanley
was sittin<i" witli Stewart at the time, and says respondent
askei'i Stewart if he was e-oin^' h, do anythinn- for him ;
tliiit Stewail said, '' No, sii', 1 rainiot. " llespondeiit asked.
"■'Why.''' Stewart said, ' Ynn did not do tlu' fair thini;
when my wife's len' was hioken." This is Stanley's
account, and ho goes on: Mr. NtM-lon said," if you will
see me in tliis cau.sc or case, if 1 have not done the fair
tliiuL;-, 1 will do the fail' thin^'. " Stanley says he Inward
tlie conversation (hstinctly — he could not helj) heai'int;- it
pai'ticularly, and did not think theic was anything' wroii:;
ill what was said at the time, and did ni>t 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 <lid not make the i)ayment depemlinn on my NotiiiL;
for him. "' Stewart told his wife what had ]iassed, ami she
wrote a lettei' to res|»onilent, heginninLi,', " ^ oii sent me
word liy my Inisiiaud oho/iJ rutiiKj. nud irlml J luid ta sa//,
cud </ i/oii, do what is i-ight, he can usi' his own pleasui'e
itv.
11 '•
412
PROVIXCIAL ELECTIONS.
[a.d.
al>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
<leducted a bill Stewart owed at the mill, and gave the
balance in money. Sistt'rson says that about a week
before the election, respontlent sent him to see Mrs.
Stewart. He told her respondent was still able to do
justice — he did not say respondent would do justice ; he
was not authorized to say anvthiui; of tlu.' kind. Mrs.
Stewart told him .she would write a letter. It was at her
own dictation that she wi-ote the letter statinu; what her
claim was, and Sisterson .said, " That willj)e just as well."
In reference to this the respondent swears: "I gave
him (Stewart) to understand I wouM not give him a cent
to go with m(> 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 ha<l i-eceived a letter lie had left there.
I said no. He went out and made inijuiry of Fving or
Sisterson, and they came in with the letter, which was
found in a pigeon hole in my desk. I opened the letter
and read it."
Looking at the whole of this evidence, I cannot resist
the conclusion that tht respondent errs in hi.s representa-
tion — he does not say .so in express words — that he knew
nothiuii of this letter until after the election. He had
""'"■"""^■IWPIII
1875.]
LINCOLN.
413
heard of Mrs. Stewart'.s dis.satist'action, and liefore the
election he sent Sisterson to her; she tohl him she would
write, and his statement clearly indicates he was present
when she dictated the letter ; his remark, " that will be
just as well," clearly indicates that he knew of its con-
mts, makes it at least highly probahle that she had
f.Kpressed her views to him, which, hut for the letter, he
would have communicated to respondent. Sent for the
express purpose o)l asking Mrs. Stewait " what was the
matter with her," Sisterson must, on his return, have
niven some account to respondent, and if he said what, it'
his present account be true, he must have said, that she
was going to send a letter, it makes it unlikely that the
letter, when it ari'ived, should have been put away in a
pigeon hole uni)pened. King says, in reference to letteis
for respondent ai'riving when he was not at the mill, "If
he was not at home 1 opened them. ... He was not
alisent, only for meetii^gs, and his letters always remained
ml Ids ((('sk." Stew'art swears that King told him that
lie liuil read this lettei' and put it on tik', and afterwards
told him that i-espondent had rea<l it and put it on tile.
If King read it, and it .seems to have come to his hands
opon or soon after its arrival at the mill, I cannot assume
thit he put it in respondent's (h.'sk without mentioning it.
Or. the whole, I deduce as a fact that respondent becamti
nware of it before the election, and thought it as well to
K^a\e Stewart to vote witliout further interference, being
sati.stied Mrs. Stewart would not influence him adversely.
But in any event the letter shows what impression the
conversation with i-espondent produced at the time on
Stewart, and I attach more value to that than to his sub-
seijuent assertion, which literally was no doul>t 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 ha<l to say, and if you do
ill
i
r!
fi .'. i
\.
414
PROVINCIAL p:lectioxs.
[A.r..
wluat is i'i,L;'ht, lie c;au use his own pleasure ultout it." |
cannot <l(>ul»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 a<lopte<l
except as a last resort, uuist unavoidably be regarded with
suspicicm, and cannot be accepted without sci-utiny. And
this the moi"e if among these supporters are found some
who for yisai's have been and still are in his service, em-
ployed and trusted by him in business relations, .some of
them confidential, and of fre(|uent, perhaps daily oceui-
rence — -the camlidate, to insure innnunity, to all api)ear-
ance keepitig aloof from the consultations of his friends,
avoiding any appai'ent participation in their acts, and thus
I'emaining ignoi-ant of everything which might not lie-
come known to the most oi'dinary ob.server — ignorant, in
^"•^•^m^^mm,
^mmm
I.S7").]
i,iN((>r,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 <leeme(l evi-
ilfiicr <if ai»[)roval or even of consent.
Uut in tliis case I do not lind any ])i'oof of a detei'min-
ation to resort to hrihery until a late hour on Sunday
(.■VfiiiiiL;-. ami it was immeiljately acted u]ion and carrieil
iiiit liy an early hour on Monday morninu'. As u fact, 1
caiiiiot tind jiroof of the respondent's knowle(li;'e or con-
<:-\\t. The evidence of a^'encv T think ample, so also of
liiiliery hy those agents, and this avoids the election. The
siif>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<in the Stewai't ease.
i agn.'e witli the learne<l Chief Justice, that there is no
rvi(lence to coiniect tlie I'cspondent with what is s[)oken
(if as the Sunchiy raid. That transaction was conceived
iuiil cai'rieil out only a few hours hefore the jiolling day,
mill thei'e is not a scintilla of e\ idence to show that the
rcspiiudent had knowle<lge of it, nor, in my opinion, tliat
there was any arrangement to which he was a party, that
he should hi' ke])t i?i ignorance of the particular acts of
CMi'ruption, whilst having a general knowletlge that such
uuans wove heing omphn't'd ; and — adopting the language
of the late ^Ir. Ju.stice Willes — no amount of evi<lence
1,11
I .1
J^l:
1 • ! T
416
PROVINCIAL ELECTIONS.
[a.d.
ought to induce a judicial tribunal to act upon luoiv sus-
picion, or to iiaagine the existence of evidence which
might have been given, but which th(j petitionei- lias not
thought proper to bring forward, and to act upon tliat
evidence, and not U])on that which really has been brouifht
forward ; and that when circumstantial evidence is ivli.il
on, the circumstances to establish the affirmative oF a
proposition nuist be all consistent with the affinnativc,
and that there must be one or more circumstances l)elieveil
by the tribunal, if you are dealing with a ciiminal case,
inconsistent with any reasonable theory of innocence.
There is nothing ie !^ hole of the evidence which is
not consistent M'itii • • ;•« > 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<I
asked for his support, which Stewart <lecline(l to promise,
sayini; that Mr. Neelon had not done the fair thing when
Ills wife's leg was broken, and Mr. Neehm gave him to
understand that he was willin;?' to "do the fair tbinij."
.Mr. Xeelon himself denies tliat he made any promise to
Stewart, although he says that Stewart had put foi-waitl
liis grievance as a reason for not supporting him, both on
the (K'casion in the school-house and on anothei' occasion
sliortly before that, when Mr. Neelon had been canva.ssing
liim for his vote. After going home fi'om the .school-
hou.se, Stewart appears to have told his wife of the con-
ver,sation with Mr. Neelon, and .some little time afterwards
she wrote, or dictated to her daughter, a letter to Mr.
Xeelon, commencing thus: "Mr. Neelon, you sent me
word by my husband about voting. an<l what I had tn
say, and if you do what is right, he can use his plcasuii'
alxmt it," and I'lidinir bv asking .SlOU nujre. Mr. Neelon
liad asked a Mr. Sisterson, who was his salesman at the
mill, and apparently a confidential agent in the election
contest, to go to Mrs. Stewait to see "what was the
matter with her," and Mr. Sisterson was at hei' house
when this letter was being written, and was told of it by
Mrs. Stewart. The letter was promptly sent by Stewart,
' £1
¥k i •; j fci
ii !
MS
l'l!i>\-|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(l not conic to ||
kiiowlcil^c till after tlic election. 'I'licrc is ipiitc room i>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»ool<s, where St
II' ai'i
c\v;iir.
is charu'cil, umler ilate I'St.li .Ian., S4-.44 for Hour, vVc, and
on tlic I (itii .Ian.. Sll. I 7. The election was on the I.Stli
.lannary. ( >n 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 <i(i
in the Siiiilli (hihiriii cdsc { jms/ p. 4:^()), in which jud^iiient
is now to he deli\-ered.
Witli res[)ect to tiie charge founded on what i.s spoken
iif as the " Sunday i-aid,"' I shall inei'ely .say that lain
not pr<'pared to assent to the a{)pIicatioii t(j tliat case ef
^mm
I:
1H7.').J
LINCOLN.
H!)
the pliliciplt' on wllicll tlw fjinnlmi cfixi (ii) WflS (Ifcidfd,
(ir to hold that on that principle alone the cainlidatf is
to 111' tixt'd with knowlfdLCf of the lii-ilM-ry conniiittfd
hv his a^t-nts, however ;4 loss and delilieiute that luiliery
iiinv have lieen, and however str<»nt,' may lie the susjticion
creatid ill our iiiimls that the cjindidate can hardly have
liccii (juite io;norant of what was heinir (luiie on his lichall'.
I ciitiiely assent to the distinction which was clearly
pointed (lutliy Mr. Ilohinsoii in the \rry aide armiiueiit
which he addresse'd to us, lietweeii the case of a city where,
within a comparatively small area and for tJie space ol'
twoor three weeks, l)rii)ery had lieen ^'oini^oii so extensive
and so tlan'rajit as to In- appro|iriately descrihed as per-
vading" the atmosphere : where not to ascrihe knowledne
n|' it to the candiilate in whose interest it was committe(l,
and who was on the spot, would lie to torero experience
and L;'i\e no weieht to jirolialiilities so stroiiL;' as to lie
almost irresistihle ; and where, in the ;fraphic lannua^e ol"
the same learnecl JudLje wdiose jud;.Miient is now <in review,
one could "as rea<lily lielieve it possilile for the res|iond-
cnt to have lieeii immersed in the lake jind (o Ke taken
out dry, as that the acts of hrilieiy which the e\ideiiee
iliscloses to have lieeii c()nimitred on his lielialf, almost
inidi'i' his eyes, in his ilaily path, with means of eiimip-
lioii |iroceedini^' from his own lieiid<|uarters and fiom the
hands of his contidential agents there, could have lieeii
cniimiitted otherwise than with his knowledge ami coii-
-^riit, ' and the present case, where what was done was
'lone only a few hours Itefore the election, and thoueh
initiated in the town where the caiiiliilate li\cd and liy
agents who were in his confidence, was carried out at a
place several miles away, and amoiiLjst the voti'rs in one
locality only of a county constituency.
I an'i'ee that the ap))eal should he ilismissed with costs.
.Moss, .J. A., concurred.
Appeal disnii.ssed with costs.
(0 Jnii.niol Lv<i'ls. Ass,,m., l-STo-fi, [). 1!>!J).
L'8
(a) Kopurled U'iniiiiioii Kluctioim, ls74, y«t.
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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., <lnhiliint<), that T. was an agent
of the respondent for the purposes of the election.
One dr., a member of the same committee, had a voters' list, and can-
vassed for the respondent, and state<l he had no doubt the respondent
expected him to vote and work for him.
lli'lil, per Wilson, J., that (i. was not an agent of the respondent.
The connnittee at the town of \V., having l)een recognized and attended
by the respondent, were held to be his agents.
One B. was a member of the committee at W. for the respondent's elec-
tion, canvassed for him, and met him at the conunittee-rooms once or
twice. B. was also appointed in writing by the respondent to act as
scrutineer for him on the polling day, and during polling hours gave
whiskey to the Deputy Returning Ollicer in the polling booth.
Held, per Wilson, J., tiiat B., while acting as such scrutineer, was not
acting in his former capacity as coninuttee-man or agent of tiie
respondent, and that his appointment as scrutineer did not empower
him to do an act of treating so as to make the respondent answerable
for it.
i ■ ■ "Wl
r
iH7r).]
SOUTH ONTAIUO,
421
One ('., ii nuMiilitT iif Hiicli (M)iiimitti-'o iit W. , partunk of wlii.skcy in the
kiti'luMi f ii tiivfi'ii at \V. diii-iii^' polling,' lioiu's, ami also, \vln;ii hring-
iiij,' a voter from tlu; town of <►. to tlu- town of \V. (within thi; sanu'
rluctoral division) t(j vote at W., treatiMl liiniself anil the voter in ().
l/i/il {Drii/Mi; V. J. A., ilU^rnfifn/i), that, C. was not guilty of corrupt
practices within s. tifJ of the Klection l^aw of IHftS.
Ihlil, \>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.
//(/</, liy the (Jourt of Apjieal (reversing WiUon, .1.), that the prnhihition
III such section ((ifi) as to opening taxcrns and giving oi' sidling liipioi-
'• ill tlu; niuiiici)ialities in which tiie polls are held," applii^s to all the
iiuiiiicipalities within the eoiistitueii(;y, iiTespeutivc of the place where
the vote is given or to l>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<j;' the election is set out in tlie
judy-nient.
Wilson, .1. — The ])etitioner contends he has proved cor-
iiipt pi'actices to liave l)een coiinnitted by W. H. Thomas
and F. E. (jril)hs, who, lie ,says, were the general author-
ized agents of the respondent, and that he has proved
corrupt practices to have been connnitted by W. H. Billinjjs
and Francis Clark, who, he says, were the general a<i;ents
of the re.spondent, but if not, he says they wi're his
agents for the purpose of charging him with treating,
and that will be sufficient for the petitionei-'s case. Hf
cliarges also that the re.spondent having had liquor .sold
or given to himself during the polling hours at Ray's
tavern, in the town of Whitby, was personally guilty of
V! i
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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,<fsaml Mr. Clark wore, or cither if them, and wliicli of
thfiii was till' ;^ciifral tin'cnts or uufciit of tlif r('s|ioiidciit,
and if not tlic ^n'ciioral ancnts orM;;i'nt, wlifthcr tlu'V wciv.
or cither of them was, the a^^ents or accent of the respond-
cn*^ so far as the allcji^ed corrupt practices cliar,u,('d luv
concerned { 'i'hii'div : If Thomas were the aevnt of the
respondent, lias lie heeii yiiilty of corrupt practices '
Fourthly; If (iihlis were also an a;;'ent, has he lieeii L;iiiltv
of corru[)t jiractices ;' Fifthly : If Billin,L;s were an a^^eiit,
has he hceii guilty of corrupl practices! ,Si.\tlily: If (, 'lark
were an aifcnt, has he liei'ii guilty of corrupt practices '.
Seventhly: if Thomas wt're an agent, has he heeii guilty
of corruj)t practices liy having had givi'ii to him a glass ut"
lirandy hy (J. Hodsoii at the village of Columhns in polling
hours :' Eiehthlv: Whether the respondent was n-niltv ef
corrupt jiraetices hy having had sold or given to hiin at
Ray's tavern, l»y the per.son attending the har there, lii|UMi-
during polling hours :'
The first (pU'stion I liavt' to<leal with is whether Thoinas
was the agent of the respondi-nt for the pur[iose of the
election ? That of course de))ends upon the evidence, ami
it is to this ett'ect. Thomas said : " I w^as at the conven-
tion for choo.sing delegates, and was chcsen one of tliciii.
I thiidv it was called by the Conservative Assoeiati(jn for
the Soutli Riding. I am a member of the a.ssociation.
The meeting was at Brooklin. The delegates I'etired to
an adjoining room and chose Mr. BrowM by balh^t. Brown
accepted the nomination two or three days after. It was
understood tliese delegates were to do all that they
could to secure Mr. Brown's election. There was a meet-
ing at the committee-room in Cshawa a few^ days after
Brown's acceptance ; don't know wdio engaged or paid
m r ' '■■
l.s7o.]
SOI'TII ONTARIO.
42:'.
fill' the ro.iiii. T\\>' 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<ir him. 'I'here were
ivports made to committees of the I'esult of tlie t.iuva.ss-
iiijL?. 1 nomination (hiy, after tlie nomination was ovei-,
ii Hi '• of Brown's friends was held in the room ovei'
the (J/ironic/f otfici- in tlie town of Whithy. Brown cam«
to it ; it was to arranufe aliout canvassinif and alxniL n-cttinn-
out voters and e'enerally ahout the election. I was there
only a few minutes There wore volunteer t(^auis from a
luuiiher of people for the election, and amon<^ them from
myself. I di'ove one Hooy as far as Cedarville to vote,
drove him in the t(;am I had hired to ^'o to Port Perry in
the North Ridinn- to vote; did not hire the team to take
liiui, hut to <^o to Port Perry. I lunl SoO het on the result
of the election.'
That is the whole of the evi<lence as to acts on wdiich
tlie (lo-encv for Brown is founded and from which it is to
hi' inferred, excepting the acts of treating, which are the
corrupt practices to he connected with the alleged agency.
Do these acts estahlish the agency ? The Brooklin meeting
wa.s called by the Conservative A.ssociation hefore there
was any candidate. The meeting of the delegates was
also hefore there was a candidate. Bi-own's lirst act was
two or three days after his nomination by the delegates.
i
■Ii
It r
!^
J^, i.
424
PROVINCIAL ELECTIONS.
1.;^
,1
.'11
A.D.
So far, Thomas was not his agent ; he was only a nit'inlicr
of the party which supported Brown afterwards, and it
may be an active member, too. The delegates were to (lo
all they could for Brown. Brown resided in Wliitl)y ;
Thom,is resided in Oshawa. Tlie committee meetings
Thomas s[)eaks of were held in Oshawa. The committco
room was paid for by the Conservative Association. It
may be presumed that all that was done up to the time
of the hiring of the connnittee-room in (Jshawa was done
by the Conservative Association, or by the voluntary con-
ti'ibutions of the elector's in order to secure a re})ics('n-
tative on the side of that body or party. It is what took
|)lace after that which must be chiefly relied upon to con-
nect or identify Brown with the acts of Thomas, althoui^h
the pi'evious conduct and position of Tliomas nnist not he
wholly lost sight of. What happened aftei' the committee-
iv.cia in Oshawa was opened was this: The comniittce
met almost every night upon election business. Thiy
provided for canvassing the town. Thomas was to canvass
generally; he was not restricted to any particular division
of it. Voters' lists were got by ihe committee for can-
vassing. Thomas met Brown at Oshawa during tin- can-
vassing. Thomas supposes Brown knew he (Thomas) was
doing all he could for him. Brown signed blank appoint-
ments of scrutineers, and delivenMl them in some way to
the committee in Oshawa to till up, an<l they did so. At
the meeting held after the nomination on nomination day,
at which Brown was present, it was arranged that tlieif;
sKould be canvassing, voters brought up, and other usual
means taken to forwai-d the election. Tliomas says \w
went in to win at this election, and lie did what he could
do for Brown all over the riding, and he had S50 b( t on
the result of the election.
There can l»e no <loul)t, then, that under these! circum-
stances, and from his conduct on the polling day, that
Thomas was a very active connnittee-man and paitizan
for Brown, and that he was clearly an agent of the com-
mittee. I was disposed to think very strongly tliat Thomas
— r-^TT" ■ ;, '7 n"^^»""'»"^^
T
1875.]
SOUTH ONTARIO.
42o
was shown to i 'C an agent of the respondent dui-ing and
tor the purpose of tlie election, on the following gi'ounds .
Brown knew there was a eoniniittee sitting in Oshawa in
connection with his election, V»ecause he entrusted that
coinuiittee with blank appointments of scrutineers signed
hv him, to till up with the names of such persons as the
CDiiimittee selected for that duty ; in fact, thf^t he left
such blank appointments with the committee was a dele-
fjatlon of power to that body, to that extent at all events,
to act for him. Brown knew Thomas was doing all he
could for him, althouLjh not from anythinn' which was
said between them, and although it does not appear Brown
knew Thomas was a member of the connnittee, and lirown
knew generally that canvassing and the other ordinar}^ pro-
ceedijigs as to elections were being cari'ied on in Oshawa
for him, and I thought it must be said that Brown did
know that Thomas was doint>' 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-
<lidate. The committee-room in Oshawa was hired by the
same association. How the connnittee was appointeil
does not appear. Thomas was a member of it. Brown
was never at any of its meetings. There is no evidence
he knew who were the mend)ers comprising it. That
committee unquestionably did canvassing, and authorized
it to be done, for Brown, and managed the election mattei's
generally for their can<lidate. And if Brown can he
identified with it, then agency by the connnittee and l>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 conti<lence to Ix' tht-
lu'ad of their own department, and acting togethci', a
llR■^sseng•er who is sent by one of tliem is not so directly
connected witli tlie candidate or any of his recognized
agents as to make him responsible for his misconduct in
ort'ering a bribe." So also in the WcM minder case (1 O'M-
vV H. !)1), Martin, B., said : " It was proved that one Davis
was a person Avlio canvassed for a society called ' The
Working-man's Conservative Association.' Tliis society
was assumed to be formed of working-men, l)at next to
nothing was sul)sci'ibed to it by working-men ; all the rest
of the funds of the societ}' came from a subscription of
£()0 from the respondent himself (he withdrew from the
society, howevei-, on Itecoming a candidate), two sub-
scriptions from his partner, and various other sums from
pel-sons who subscribed, expecting this money to be ex-
pended in promoting their political views. The funds of
the society were spent in canvassing persons to vote for
the respondent, but the evidence was that it was an indi;-
pendent agency, and that this body was acting on its own
liehalf." And on this statement of facts, the Judge said,
" he should not hold Davis to be an auent."
I am not prepared, upon the evidence and upon the state-
iiii'nt of tlie law to which I have referred, to .say that it
was Brown's connnittee appointed liy him, oi' adopted by
him (excepting as to the scrutineers), or authorized by
him to canvass for or to manage the election contest u'ene-
inlly for him. I have already said that the autihovity by
Brown to this committee to name .scrutineers for him was,
in my opinion, a special authorit}' to act in that particular
matter and for that occasion only, and that it cannot l»e
e.Ktended to the ado})tion by him of the connnittee as his
general agents foi' all purposes.
If the committee were not of Brown's nomination or
ailoption — were not, in fact, his generpl agents deriving
tht>ir 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
{
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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<fainst the respondent. Thomas was not the direct re-
presentative of Brown. He was the agent of and for
the coiniiiittee, and if the agency of the connuittee had
hcen proved, the agency of Thomas would have been
proved too. But I am not satisfied the connnittee are
sliowii to have been the general authorized agents of the
i'cspon<lent.
As to Ml'. Gil)bs, th(( evidence as to him is : " 1 was
working in Brown's interest in O.shawa. The committee
rhiTc was divided into wards. 1 was interested in the
Son s Hall wai'd particularly, but (in answer to the words
of Mr Bethune's ([uestion) I had a roving connni.ssion
over the ivst of the town. We met at the conmiittee-
rooius. Oshawa was divided into .sections ; each section
liiid a coiiMuittee of its own. I canvas.sed where I tlumght
it would be of use. I had a voters' list. We raised no
fund to pay expen.se.s. 1 did not contrilnite one doUai'.
No arrangement that I am aware of to pay (!X[)enses. I
was in Oshawa on ])olIing <lay. There were .some public
meetings held in O.sliawa. Brown was thei'e. 1 am not
awaie of Brown's conva.ssin<; a sirmle man in O.shawa.
No conversation with him about our canvassing. I .said
to Brown 1 hail no doultt Oshawa would do its duty again.
1 have not the least doubt that Brown e.\pected me to vote
and to work for him too. 1 spent no money at the elec-
tion but my own personal expen.ses, and they were very
trillinii', 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 a<j,»'nt of Brown's who coiiM hind liim for the act
of treating, if it he one.
As to Chirks uUeged agency. He said: "I attended
hrMWMs eoimaittee meetings at the hist eh'ction. They
writ' iield over tlie Chronicle otKce. 1 attended not over
lluTf times; went there to help on Bi'own's ek'ction. I
wdiilil like to se(! Brown elected I don't reiiuMuher
asking any one to vote for Bnnvn in the Orange lodge, or
(Hit of it. I went on tlie polling day for .h)rdan, a votei',
to vote for Brown. I got him and hiought him to vote.
I was at J^andell's tavern that day in the kitchen. I
took a drink there between !) a.m. and •") p.m. in Whithy.
I had a glass at Oshawa too. I treateil myself there ainl
.loidan also. I paid foi- it; think it was whiskey we had.
.loidaii worked in Oshawa hut live(l in Whit!)y, and had
a vote hi're. lAithergill volunteered to drive me there
for Jordan, and we hrought him up. Tlierc was no i)ai'-
ticular part of the town given to me to canvass. 1 think
I saw Brown once at the coiiunittei! meeting. I know of
no otln'f hody organized for l>rown"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 \
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fi'v,
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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 rea<ling of that ])<art
of the section which it was said was applical tie tothecasi'.
The whole section is as follows : " Every hotel, &c., shall he
closed dui'ing the day appointed for polling in thi' wunls
or nnmicipalities in which the polls are held, and no spiiir-
uous or fermented li(juors or drinks shall be sold orgivrn
to any pe^^son within the limits of such municipality duriiiif
the said period, under a penalty of !?100 in every such
oase." If a poll is held in a city in one of two wnnU
into which the city is divided for electoi'al pui-poses, tin'
hotels. Sec, in such ward in which the poll is held must 1m'
closed on the day of polling. They need not be closed in
the other, but no liquor is to be sold or given througliout
the whole of the city, that is, in the whole nuinicipality.
during that day. If an election is going on in a town
ajid in another municipality forming one electoral divi-
sion, the hotels, ».S:c., in all the municipalities in whicli tl)i'
polls are held must be closed, and no ll(|Ui>r 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<'<l at is in the nnmieipality
(if tlu' town of Whitlty, hoth niuniei[)alities bein«f in tlie
one electoral division of South ( )ntai'io '.
If it will apply to such a case as that, it will ecjually
a]i)ily to li(|Uor i^iven in North Ontario or in th(> 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 <lay. 1 undei'-
stand >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 regar<ls Mi-. Billings and Air. Ulark,
hut upon diti'erent grounds, a.s bef<jre stated.
a
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434
PHOVIXCIAI. KLKCTIONS.
[A.D.
•II
f«l-
i\r
T'-i
'U'i
'^H
The s(;ventli iiucstioii, wliicli (Icpcnds on wluithcr Tlionias
was ^'uilty of dfiiikinj^- at Hodsou's, it is not necessarv
to answer, as I have not found the a^^-ency to h(^ proved.
If it had l>een 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 <fiven to
the words suck mii/iici/xdi/i/, before mentioned, where a
person is to vote, because it may mean tlie municipalitv
where the vote is oixfn or to be <j;"iven. But when the
ag'ent of a candidate, who has no vote, is given li(|Uor in
such iiiniilci/ic/iff/, I do not know to what municipalitv
the reference is made. Nor do I know what municipality
is referred to if the agent .sell or give licjuor to a person
who is not a voter in the electoral disti'ict. I should say
also that this act of drinking by Thomas was not an act
of srlliiKj ov f/ivlji;/ li([Uor within .t^y ii'ith section, l)ut of
receiving ordy. As to the acJ oi gd, (U'vi i luoi- to voters
and others by Thomas at Hallett's hotel, I am of opinion
it has been proved, and if the agency by Thomas hail also
Iteen proved, the giving of such li<|uor must, I fear, l>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 <lay. No one drank with him. Ho
Ii,is not paifl for it yet. It is very clear, 1 think, that his
Imi/i/n/ or rnririiif/ (b'ink is not sellin^C or n'ivinj^ it within
thf (Kith scetion. It is saiil that as there can lie no sale
or L;it't without a ))urehasc oi- receipt, there can lie no
(•iiiii[ilt'tc sal(^ oi' i;it't until the other eonteniporaiy acts
take i)lace ; but that where tlie sale oi' <f\h is C(jiiij)lete,
the purchaser or receiver is as much an ottender aj^ainst
that section of the Act as the seller or ij'iver, because the
Act does not say »(i /xirsun shall sell or- .ijive, but ni> 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<le against the petitioner.
If this enactment as applied to Brown, the can<lidate
himself, in taking a glass of licpior as he did in Ray's
tavern, is enforced, as it is said it must be, then, as the
29
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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, an<l
otiier places wliere spirituons lienors are nsnally soI(h
and sellinn" to all persons during- the prohiliited honrs of
the election day, und durine- nearly the wlioh' of that day.
and that some measures shonid lie taken auainst ail those
who have so slianiefniiy (K'tied the law. I feel oMi^'eil
til ■^ay that 1 reLfret to Hnd that the respondent shonid
lia\e heen ill aiiy taxern dininn' these hours, and that he
should ha\e drank thei'e. or that he sliouM ha\'e 1 n
there at a time when others wei'e iin[)r()pei'ly drinkine",
and that other jx-rsons of iidlueiice and t^'ood jjosition
shoulil ha\e lieen in these places at such a time, or for a
])Ui'pn,-„ •' Inch they knew was aiiainst the law, and when
their example was likely to Ik; an encouiui^ement to
ethers of a iliilerent station fi'oin tliemselves.
[Mr. .ll'siK i; Wilson, after the delivei-y of iudeinent,
aiM'd the followiuL;' memorandum] :
1 slioulil [)erhaj)s liave stated mi>re 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
<loul)t some freedom must be atf(ji'ded in such cases tor
voluntary inde[)en<lent operations, and for the acts of the
persons so aiding in the election, ndiich should not lie
binding" on the candidate.
While the Tauvton. rase (21 L. T. N. 8. 1()9) is a decision
v^ery much the other way: that committees and persons sc
forwarding the gen(;ral pui'pose of the contest have the
power of binding the candidate they are assisting, unless
he, with a knowledge of their pi-oceedings, rej)udiates theii'
work.
Thei'c is nuich force in this view, and I confess it iiioiv
nearly represents my own original impression, bi.'fore
referred to. It niay not, howevei', be entitled to ])re-
vail so absolutely, as stated in the last mentioned case.
The candidate cannot be re(irii-e(l, in every case, to su[i-
press all help from every voluntaiT association, ami to
repudiate every effort of in<lividual entei'[)rize. 'Hie fact
of the candidate having left blank api)ointments of sciuti-
neei's to be tilled up by them for him, is a strong grouml
foi' holding a candidate to have ado[)ted the connnittee as
his I'epresentatives and 1 might say, as his agents. Pro-
bably J might have so decided with moi-e leisure for
consideration, and then the (piestion as to Thomas' agency
would have depen<led upon what he did at Hallett's tavei'ii
and the etiect of it, as to which I expressed an o]>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 calle<l 'Hay's hotel,' in
the town of Whitby, was guilty of a corrupt practice in
giving spirituous and fermented li([Uors at his tavern on
the day of polling, and during the hours appointed for
j)olling, to divei's persons, and that the respondent was
j)resent when liquor v.'as so given as aforesaid, and con-
sented thereto."
, U)'
'"'^mmmmmm
1875.]
SOUTH ONTARIO.
4.39
Tlie order for particulars of coi-rupt practices provided
tliat tlie petitioner should deliver within a liniited time
" full particulai's in writing, so far as known to the peti-
tioner, of the alleged cori'upt pi-actices in the said ])etition
referred to, with names and additio)is, dates and places"
(and other specified partieulai's in detail) : and the order
conclu'led as follows : " And in default the petitioner shall
lie precluded from giving evidence of such particulars on
the. trial thereof."
In the particulars delivered pursuant to the order, the
charge was thus stated : " The respondent on the said day
of polling, and during the hours appointed for polling, gave
spiritucais and fermented liquor, and drank with diwrs
electors, to the petitioner unknown, at Ray's hotel in
Whitl.v."
Mf. Uiilmur for petitioner.
Mr. Hrrtin' ('(iinit'uii, <^.C., for respondent.
Counsel for the res[)on<lent objected that the charge
iinolved in the first ground of ap[)eal was not in the par-
ticulars: that it was urged now for the tii'st time; and that,
liy the order for particulars, the petitioner was precluded
tVoiii raising it.
The Court declined to entertain the first gi'vumd of
ap|)eai, as the allegation therein containeil differed in a
iiiatri'iid point from the charge .specifieil against the r<'-
spondeut in the particulars ; that the particulars could
not now he amende<l ; and hecau.se the charge had not
lu'en ini[uired into noi' adjudici^ted upon hy the learned
.ludge at tht; trial of the i)'.'tition.
•Judgment in a|»peal was deli\-ei'ed on the 'l'hv\ Janu-
ary, iSTd, as follows:
J)h.\pei!, C. J. A. — I have doulited the correctness of the
decision in Clark's case, and am not sorry to tind that
tlie learned Judge ]ia<l also a ccmsiderahle ilegi'ce of d(jul)t,
as 1 should not, unless upon the clearest conviction, de[)art
Irum his deliherate opinion.
.
i
1
■ y
•
\ '!;(:
m^L^
440
PROVIXCIAL ELECTION'S.
[a.d.
The facts seem to l»e as follows: One Jordan was a
voter, whose residence was in Whitl>y, 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 h<mr when the treating took
j^laci' — no doubt suggested as to its being within the
hours apiJoiute<l for polling, i.e., from nine a.m. to tivu
p.m. Considering that to make this treating a con'n])t
practice, which, if connnitted by an agent without the
actual knowledge and consent of the candidate, would
avoid the election, it cannot have been overlooks 1 at the
trial ; and as the evi<lence shows that Clark drove from
Whitby to Oshawa to get Jordan; that Clark had told
him when they got to his (Jordan's) own place that he
could stop there and go down after dinner and vote; an<l
that no point has been suggested on either side th.at the
treat was or was not within the liours appointed for
polling, I shall assume it U' have been so.
I have already expressed my opinion u]">on 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 an<l inHuenceil
theii' disorderly proceedings. The distance between mu-
nicipalities in which polls are being held at the same
time may be such as to rendei- (piite unjiecessaiy any
provision against dangers to ai'ise from the prohibite<l
1875.]
SOUTH ONTARIO,
441
cause, and ought to repel the idea that the Legislature
jiiul the ])revention of any such danger in their contem-
plation. But it would be little it' at all less ahsurd to
li(jld that treating votei's in inuuicipality A — who, being
excited to lawlessness and influenced by liipior, went
into the adjoining nuuiicijiality B, wheiv they crcuteil n
.listurbance— would not be within the niischiet' intendccj
to lie prevented by the Act, as it' the tavern in which tlie
li(pi(n' was given to them was in nnmicipulity B.
Fui'ther; I see nothing in sec. ()(') which makes the fact
that the person to whom li(pior is given is or is not a
voter an element in the matter pi'ohibited, that is, selling
or giving (a coiif prrsun within the limits of such munici-
pality. Thei'e is no necessity that a man should be a
votci' to make selling or giving liipior to him on the
[lolling day an ott'enee subject to penalty. In Jordan's
case, if he had not been a voter, giving liipior to him in a
tavern in Oshawa would have been a violation of the law,
assuming as I do tluit the day in ([uestion was appointed
for holding the polls in the municipality in which the
tavei'u .stood.
I thiidc we surmount most of the ditHculties suufgested
by liolding that section (j() is confined to the regulation of
hotels, taverns and shops in which li((uors are ordinarily
sold. Oiv the day ajipointed for jiolling they nnist be
kept clo.sed under a penalty. No liipior must be sold or
given to any person in any such hotel, &c., on the polling
day. 'riie words, "witliin the limits of sucli nuinicii)ality'"
may perhaps be reilundant, bnt the woi'd sur/i confines the
construction to the munici[)aliti('s mentione<l in the former
part of the section, which may, I think, be ])ropei'ly ti'eated
as part of the desci'iption of the hotels, i!s:c., which are to
be kept closed, namely, hotels, »lvrc., situate in "the mu-
nicipalities in which the ])()lls ai'e held."
Adopting this conclusion, I am of opinion that Clark
was an agent of the I'espondent, ami did, in violation of
section (J(), give spirituous li<iuors to one Jordan in a
tavern in Oshawa, which was a municipality in which a
;■
bl:
J«
:!f\:
442
PROVINCIAL ELECTIONS.
[A..,
poll was held on that day appointed for the pollinj^^ and
within the polling houi's, and that the election was thi-iv-
fore void and should be set aside.
M}' brothers consider section (i() of the Act of ISdS
does not atfect any person except the keeper of the hotel,
tavern or shop, who is subjected to a penalty in tliicu
cases :
1. Not keeping the hotel, Sic, closed.
2. Selling li(|Uor in his tavern, kc, during the polling-
day.
8. (living li(|Uor in his tavern, &c., during the pollinu-
day.
The whole three are made corrujit pi-actices if eoiii-
niitted dui'ing the hours appointed for polling. I linjir
the Legislature will renun'e the doubts by a clear state-
ment.
Bnri'ox, J. A. — The three charges, assuming that in all
or some of them the agency is established, are charges of
giving licpior in a tavei'ii by an agent within the hours
appointed for polling, and involve the necessity of our
placing a construction u[)on the language' of the much-
debated ()()th section of the Election Law of lS(iS.
Wt' had occasion to consider this section before in tin-
Nor/// Wintinorth {(Dite p. o4-S) and North Grci/ cases {milr
p. o(i2), and then held that there having been a clear
violation of the section by the hotel-kee]X'r, which was
made a corrupt practice by the Act of LST-S, and tliat
corrupt practice having been committed with the kiiow-
ledu'c and consent of the candidate in each case, theri; was
no altei'uative but to declare the election void and the
camlidates dis(pialitied. But it is contended on the part
of the jH'titioner that the latter part of this section is
sreneral in its tei'ins, and is not to be restricted to the
parties aimed at or intended to be referi-eil to in the tiist
part, VIZ., the keeper of any hotel, tavern or shop in which
spirituous or fermented liquors or di'inks are ortlinarily
sold, but extends to any person within the municii)ality,
]S7.").]
SOITII (iNTAiro.
44:}
anil tliat tlic penalty imposed is confined to tlie ou'ence of
.si'lliiiy or u'iviiiL;- i-cfei'icd to in that portion of tlie section.
The clause in (piestion, witli several othei's havini^ for
their object the presei'vatiou of peace and ^^'ood oi'der at
(lections, is to lie found in the 22nd Vic, caj). 82. That
to which this section coi'responds was consoli<hited in tin;
Consolidated Statutes of ( ^anada, cap. (),as section Si, ami
read thus : " Every liotel, tavern or sho[» in which s])ii'it-
uous or t'l-riiienteil liipiors oi' driid'Cs are sold, shall he closecl
iliiriiii;' the two days appointed for polling;' in the wards
(ir iin nicii)alities in wliich tlie polls are held, in the same
iiianiier as it should he on Sunday dui'ing divine service,
ami no s[)irituous or fermented li(|Uors or drinks shall he
>i»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<ler a })enalty of SlOO in eveiy such case. " If
these words have the effect of extending the penalty to
each case of omitting to close a tavern, hotel or sliop, as
Well as to each case of selling oi* giving, there would he
Ho good ivason that a wider signification should he given
to them when I'ead in connection with the lattei- jiart of
the section than the former. The //"/•/// ll((lilf to the ])en-
alty for (mnffiit;/ fn c/fisc nuist he the ke,e[)er. Why should
they lie construed as extending to rrrri/ pi'rsini. when read
in connection with the remaindei' of the section :" My
own view is that the new enactment is in suhstaiice the
siune as the former one. It is imj)os.sihl<' to helieve that
it' the Legislatiu'e had inte!ided to effect .so sweeping a
change, they would hav(.' left it to he inferred, or as a
■1
Mi
|iiliH||;
444
PROVINCIAL ELECTIONS.
fA.I)
question for argument, instead of making it cleai' liy tlir
insertion of a few words. It wonld l)e such a mistuki'
tliat, in the language of Mr. Bai'on Bramweil, it would lie
an iinputation upon tliat body to suppose it.
It is true, tliat for omitting to close the hotels tlieiv
could be only tlieone penalty — the oti'ence l)eing coinpleti'
whether kept open for one jiour or for the whole <lay —
whilst each separate sale or gift would, I ])resume, con-
stitute a separate ortenj.'e. Brooke tjni fran v. MiHikrii (:\ T.
R. oOO).
I can see no good reason foi' holding that the Legisla-
tui'e intended to confine the penalty to a portion oidy uf
the ottences enumei'ated in the (ilJth section, or for holding;',
as suggeste<l by Mr. Justice Gwynne, that the whole, viz.,
the hrcpuui opiuh and the nale, should bo regarded as l)nl-, inw
offence, complete only in the event of spirituous licjuors
being .sold or given. In Newman v. Bemltjt^lic (10 A. iV iv
11), a conviction for keeping open the house, foi- sellinii;'
beer, and for suffering the .same to lie drank and consul ueil
in the house, was held bad, as including three .several
offences in one conviction, for which the defemlant might
have been distinctly convicted.
It is said that if it had been intended to limit section
(jb to hotel and .shop keepers it Avould have been easy to
have so e.x:pi'essed it. To my mind it is so expressi'd —
the fii-st part of the section overriding and being tlu'
key to the whole. But if thtn-e is any dou1)t or ambi-
guity, I have already intimated my opinion that in the
consti'uction of statutes it is not to be presumed that the
Legislature intended to make any innovation upon the
connuon law further than the case absolutely I'etjuires.
The law rather infers that our Act does not intend to make
any alteration other than what is specified, and beside
what has been plainly pronounced ; for it the Parliament
had had that design, it is naturally said they would have
expressed it. It is further argued, however, that the woiil
"give" indicates an intention to extend the Act to other
parties beyond the keepers of hotels, but it must be borne
I ST.').]
SOUTH OXTAUIO.
44:
ill iniiiil tliat that word is to be t'oniid in tlio original Act,
wlu'iv tlie penalty was un(|uesti()nably resti'icted to the
ki'('[).i' of the hotel, kc, and, as Mi'. Justice Gwynne s\v^-
ocsts in the Lincaln cksi' (imff p. .SOI), was probably added
to prevent the possil)ility of tlie party proceede<l aij^ainst
foi' the penalty evading the statute by settinij up as a
(Irfenee that he did not sell, l»ut <;'ave, the di'inks.
But tliere is an additional reason for coneiiidinn' that
tlie iief;islature did not intend to eti'eet so sweeping a
(•liange under a sectic^n which pui-ports in its introductory
cliiuscs t(j deal only with hotels and shops where spirit-
Udus or feruiented li(juoi's are sold. In such a case we
may faii'ly refer to and exaniini' other parts of the Act
fur tlie i)Ui'pose of ascertaiiiiny the intent of tlie legis-
lature. On referring, then, to the Olst section, wc find
tliat the cainlidate, or any other person, is authorized to
furnish drink or any other entertainment to any meeting
of elector-!, even on the polling day, at his or their usual
place of residence. Here, then, we have a clause in the
same statute expressly permitting what another section,
in as express terms, prohibits, if the construction con-
tfiuled for by the ])etitioner be the correct one.
Now that the elections are all held in one <lay, a literal
compliance with the first portion of the (JOth section
would be impracticable, there being no such exception as
is to be found in the English Acts in favor of the recep-
tion of travellers, and in tl^e amendment to the Act that
lias just been introduced, I see that it has been omitted ;
liut whatever ma}- l)e meant by closing a hotel on the
'lay of polling, it is directed, and the failure to do so is
made a distinct offence.
1 will refer only to one other nuitter which confirms
nu! in the opinion that in the construction of this clause
we should give no further effect to the woi'ds tlian they
clearly and unmistakably l)ear, which is this : The Legis-
latuie, in what is popularly known as the Dunkin Act, has
•li'clared that no prohibitory law shall l»e passed by any
municipal council without the consent of tlie ratepayers,
hi
i-a
■si
446
PROVINCIAL ELECTIONS.
[A.i:,.
and, whilst <leclining to pass such a law theinsflvt-s, havf
h'ft it in the power of the ratepayers to make such nii
enactment. Are we to suppose that they intended int'iT-
entially to ])ass such a law, even t'oi- a limited period,
when they re-enacted a clause whicli, when first passeil,
applied only to hotel and shop keepers selling spiritumis
and fermented lifpiors '.
For these reasons I am of opinion that the person, anil
the only person, liable to the penalties imposed Ky the
Election Law of iSfiS is the hotel or shop keeper, or jXTson
acting in that capacity ; that he, and he alone, is the jx r-
son who is guilty of a violation of the Act, l)y selling (ir
giving lifjuors, and so liable under the Act of l(S7'i to the
additional penalties imposed by it if within polling lioui's:
and whilst the investigation of this case has more fnlly
confirmed me in the conviction of the correctness of tlir
decisio*^ of the Court, which declared that a violation by
the hotel-keeper of this section, with the knowledge anil
consent of the candidate, avoided the election and eutaileil
the penal consecpiences affixed by the statute, I am not
prepared to hold tliat the agent of the candidate is guilty
of a corrupt practice in treating at a hotel within the
prohibited hours. To do so would be in effect to hoM
that thei'e could be two ])enalties for the same ofiencf,
when tlie statute has impose<l only one.
]\ty conclusion, therefore, is that there has Ijeen no vio-
lation of the ()(ith section within the meaning of the Act
of LS7:3.
Patterson, J. A. — The grounds of appeal chai-ge as vio-
lations of section (JO the giving of licpior to varit)us persons
by agents of the candidate during the houi's of polling,
the persons in each case being trcsated l:)y the agents at
a tavern; the agents not being the tavern-keepers, but
merely casual guests.
In this respect the three charges are precisely alike.
The questions peculiar to each case are those touching the
facts of the agency and the places where the drinking
took place.
wmm
wm
V ■>:■ ■
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 c<jnstrue the clause liter-
;illy. and give their full eth-ct to tlie woi'ds " no spii-ituous
111- fermented li(|Uoi's oi' drinks sliall 1m,' sold t(j any person ;"'
111' \vc nuist I'ead the words with which the clause coni-
iiK'Uces as indicating tlie class to which tlie whole clause
applies, and read the clause' as if worded to the ett'cct
that " no keeper of a hotel, tavern oi' shop in whicli s[)irit-
uous oi' fermented lif|Uors or diinks aie ordinai'ily sold,
^lifiU open his hotel, ^c. during tin- day appointi'd for
jMilling; nor sell or give to any ptjrson, »v:c." This was
evidently the ett'ect of the clause as it stood in C. S. Can.,
cup. (i, sec. 81, whine it f<jrms, as it (hjes in the Act of
Ls()8, one (jf the pi-ovi.sions for " keeping the peace and
good order at elections."
It is not dilhcult to .suggest reasons why, as a matter
of policy, it niay he desirable to extend the [)i(i!iiliition
against distributing liijuor on polling days lieyond the
onlinary dealer in liipioi's. We have, however, to in((uirt'
whetlier that has Iteeii doJie. and if so, whethei' this e.\-
triisiuu is in any way limited, or wht'thei' it reaches all
persons in the numicipality without i'egai-d lo the [)lace
where li(|Uor may be given, oi- the- pui'pose for which it
may be required.
The consequences which would follow from holding the
restriction to be entii'ely unlimiteel have been well pointed
out by the learned Judge below, and thev ai'e of a charactei'
so startling tliat it is impossible to supjxjse they could
have been in the contemplation of the Legislature. And,
liosides this, the clause, so construeib would apparently
he iu conflict with section Gl, which allows a candidate to
,., J
H
' ' i i '
%
^i
44S
PROVINCIAL KLKCTIONS.
[a.d.
entoi'tnin a lurctinjL;' of t'luctois fit liis (nvii Iiotisc on the
jiolliiio- (lay.
I liclic'vc we are all ngn-t'd that this uiiliniitcil ctfict
cannot Itc n'ivrn to the section ; l»ut the learned Chief Jus-
tice, while he construcH the piohihitiou as extendinjr to nil
pei'MOiiH, considei's that the hiw is only violati-d when tlic
liquor is sold (m- ^dven in a hotel, tavern or shop in wliich
li(|Uors are ordinarily s(»ld. I ha,ve not l»een aide to see
in the clause itself or in the context anythini;' which im-
poses this limitation. I cannot find room for any middle
course. I think these two alternatives only are preseiiteil ;
eitiiei' the kee])er of the hou.se alone is aimed at, or the
prohiliition a[)plies aijainst all persons and to all places
within the municipality.
The ti'Ue slew of th(! enactment, in my judj^niient, is
that it is simply a re-enactment of the foi'mei- law, eitliei'
without modification or with no modification that points
to any more extensive operation; and I think this appeal's
whether we closely examine the clause itself or hxjk else-
where, as we niay do in vain, for indications of an inten-
tion to ehann'e the law.
All the other clauses in this division of the statute are
verbatim re-enactments of the former statute, except that
the penalties, while the old nmounts are retained, are im-
posed in terms adopteil to avoid any appearance of lei^is-
lating as to criu)iiuil law.
Three changes are made in the section. The first cliange
is tlie omission of the words which directed that the house
.should he closed on itollini'- davs "in the same manner as
it should be on Suiulav during divine .service " — an omis-
sion apparently made because -the omitted words svere not
applicable to any law in Ontaricj, but Avhich has no bear-
ing on the argument now" in hand.
The second is the insertion of the words which I quote
in italics in the passage, " and no spirituous or fermented
liquors or drinks shall be sold or given to any 2'>cTSon 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.<rs. hut not tlie dis])ensine' ot" li(|Uor outside (jf their t'(jur
walls. That douht is set at rest, and the [iresent section
is either simply declaratory t)t:" tlie law as it stood, oi'
iiiuilities it oidy so far as to make evasion of its iutencion
iiiiirf ilitlicult, without, hy force of the insei'tion of tlie
liaiticular words I am now discussine', otherwise extend-
ing it> 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 <lrinks
,tfi)resaid."' It now reads, " under a penalty of SlOO in
rveiv such case." The words themselxcs ajipear to lie
Hilly a statement in a n'enerid and com[)relH'nsivt' form of
wiiat was hefore expressed in more detail. The ar^'unient,
however, is that liecau.se "the keeper thereof" is not now
mentioned, an intention is shown not to coutine the pro-
liihition as it wa,s before. Let us see wlieiv this argument
leads to. We have to take the .section either by itself, or
we have to look at it in connection with and as i-e-enact-
'UL!; the other. Reading it by itself, and taking two ])vo-
visions .separately, we have Jirsf this enactment : " Every
hotel, vVc, shall be clo.sed during the day appointed for
|iiilling, in the wards or nnniicijialitii.'s in which the polls
Hie lielil . . under a penalty of i^lO"." Whose duty does
this make ittoclo.se the hou.se ;' 1 apprehend there would
lie a serious difficulty in enforcing the penalty foi- neglect-
ing a statutory duty, unless the statute made it the duty
of some particular person. As far as the clause expresses
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VHDVISCIM. i:i,K( TIONS.
[A.D.
it, tlic<lnty may '«' intcndfil to b(> 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 r<!eve or constalih' of the townshii).
The answer, of course, will l)e that there nnist he a reason-
able construction a(K)i)teil, and that when it is said that an
cstahlishnient is to he (•lose(l, that is (M|uivalent to saviu"
it sliall not l»t.' opened, and that the pei-son who could othcr-
■wist; open it is the ])ei'son intendiid. It is not iny pi-escnt
object to analyse this contention minutely. It n\in']it aj)ni>jir
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<lin^' partly on presumption,
and lialde to lead to a wi'on^' conclusion.
We <;'et rid of all the ditKculty by lookin^• first at the
law as it was, where we find there was no room for doubt.
We then in(iuire, has the law been chauj^ed ! and we
find that the Province of Ontario having become separated
from Quebec, its Legislature having found it necessary
or desirable to re-enact the law relating to elections, did
re-enact it, making such changes as the changed constitu-
tion retjuired ; but indicating no intention to change the
law except where that is done in exp,ress terms, as, >. //.,
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('<l as iiicaiit to lie unil us lu'ln^' a if-
.iiartiiu'Mt, with only such iiKidificatioiis as I have iioticfd.
Wlii'M wi- I't't'tT for explanation to tlic law as it was, wi»
tiiul IK) ililHculty in roailinj;' the wonls, "nndiT a penalty
ill I'Vciy swell case," as the same in ell'eet as " nnih'i' a
|irii(dty an'uinst the keepi'i' thereof, if he nej;leets to elost-
it mill uniler a Iil<e penalty if he sells or ^'ives."
W'c lia\'e eithel' to take the new section liy itself, when
\vi' timl that one half of it is inoiierative, or if operative
;it all, is only so hy some nicety of construction which can
iiiver he other than doiilitful, or we have to take it as a
n-i'tiactment of the old law, when tlie whole is operative.
1 do iK^t thiid< the word " <;'iven " as it occurs in tlu.'
pliifise " sold ()!• o'iven " adds much wtnglit to the conten-
tion for the more extended construction, as t(j ha\'e
]iiiiliiliitcd selling" only would liaAe heen to invite evasion
Ky almost sUL(<;'estin<4' that the tavern-keeper should dis-
tiiliute the liijuor on thi' pretence of givinj^' it.
1 have already saiil that while satisfied that the sec-
tion camiot l)e read as forhidding the <i;'iving of the li(|Unr
//// (iiiji line, without resti'iction as to place or purpose,
I am not ahle to perceive any ground, satisfactory to
uivsclf, for holding' that the restriction may exten<l to
persons, othei' than the keeper of tlu' house or |)ei-son
actin;;' in that capacity, who yive li(|Uor in the house
itself, V "len it would not touch them if they y-aye it else-
where in the municipality, as in the charues now hefore
us, which are ordinary cases of tieating, the ))t'i'son
cliarged as giving did so merely by buying from tlie bar-
keepei-, and then by his own hand or the hand of the
liar-keeper giying it to others.
We should have to impute to the Legislatiire the inten-
tion to convey by the one expression two separate man-
dates, one of wliich pre-supjioses disobedience to the other.
As far as it affects the tavern-keeper, tlie ehactment is
that he is neither to open his house nor to se'l or give
liquor on the polling day. If he obeys this command,
nu other person can possiltly giye, on tliat day, any of
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452
PROVINCIAL ELECTIONS.
[.U).
the tavern -ktH'per'.s li(|Uors. He is to retain liis wliolc
stock safely in his own possession. It woulil st^'in a
faulty rule of construction on wliich we should hold that
the Leo-islature, in contemplation of the tavern-keeps-r
disobeyin<f the law hy parting with liquoi", meant to pro-
vide against such disobedience by the further command
that if he did so disobey, the recipient of the liijuor nuist
not give it away again under a penalty, and particularly
as no penalty is attached to the act of receiving it. If
.such an intention existed it sliould and doui)t]css would
have lieen somewhat more cleai'ly ex])ressed.
The only other case in which it can 1)e suggesled that
glmuj at a tavern, etc., is tlie act intended, is the case (;F
persons bringing licpior from elsewhere to the tavern ainl
giving it away. This is too remote a possibility to recpiirc
more than a bare mention, and no good i'ea,s(tn can br
.suggested whv a giving of that nature should not be an
oti'ence wherever committed, as well as when committed
in a tavern or place where liquor is oi'dinarily sold.
In my view, therefore, the agents, Thomas, Clark and
Gibbs, did "lot violate sec. GG by treating at taverns on the
polling day.
The same remark applies to a personal charge again.st
the candidate for treating at Ray's ta\'ern, which ,'*eeni.s te
have been urged beiow, l)ut which was not renewed before
u,T as one of the grounds of appeal.
It i.; not necessary for the disposal of the case to dis-
pose of the other ([uestions discussed in the judgment
before us, Init on two of tliose questions it is proper that
we shoiild express our opinion.
[The learned Judge then referred to the agency of
Thomas, and agreed with the later opinion of Mr. Justice
AVilson. that he was an agent. He tlien proceedcfl:]
The other (piestion relates to see. (it) of the Act oi iMi^.
One Clark, an agent of the candidate, had treated one
Jordan, a voter whose polling place was in Whitby, at u
tavern in Oshawa, dui'ing the hours of polling. The
learned Judue iield that this was not an illeual act within
1«7.').]
.^OUTH ONTARIO.
4:).S
SIC. ()<J, '■ because tlie li([U()i' was not given by Clark to
Jordan witliin the limits of the municipality where tlie
jHjll of the town of Whitby was held."
] think this is a mistaken view of the section, and that
the mistake has arisen from regardinsjf the prohiltition as
aimed at the treating- of rofrrs;; and with tluit iilea, reading
tlie words "municipalities in which the polls are held" as
meaning the municipalities in which are lield the polls at
which fhr, voters ir/io an' treated ai'e entitled to vote. T
think it is (|uit(i plain, not only that the object of the en-
actment, viz., to preserve peace and good order at elections,
would be very inefficiently attained if open house might
he kept for all who wei'e not voters of the particular ward
or municipality, but that nothing in the seccion points
to tliat construction. An election is proceeding for the
riding: Whitby and Oshawa are two separate nuinicipali-
ties in the riding, and in each a poll is held during the
saiiu' liours. A fdrrrn-lxypn- who sells or gi\es liipior in
oitlier nuniicipality is plainly violating sec, (i(), whethei'
lie gives it to voters of that nuinicipality or to voters of
the other nuniicipality, or to persons who are not votor.s.
The prohibition is against selling or giving within the
limits of a nuinici])ality in which a jtoll is being held,
without any regard to tlie persons to whom the li([Uor is
sold or givt-n. The decision in Clark's case is theref(jre
upheld — -not upon the ground on which the learne(l Juilge
ivsteil it, but u])on the other ground which 1 have
iliscussed, viz., that the corrupt act \\as coii\mitted, not
hy Clark, but by the pei'son who sold him the liquor.
The appeal should lie dismissed with costs.
Moss, J. A. — The leai'ued Judge below, ii[)on a review
of the evidence and an e\.amiiuition of the authorities,
lielil, although with nuicli hesitation, that neither Thomas
unr (ii])bs was an auvnt by whose treatini; in taverns tlie
respondent coulil bu affected ; but he was manifestly of
opinion that if tlie agency had Ijeeii established, their
conduct in !j;ivinL>- 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<l been estal)lisli('(l in
the ease of Thomas : and I nnist say that that ap])euis \i,
iiic to be the pj-oper conclusion 'Vom the evidence. In tlu'
case of Clark he decided that a^'ency had bc.'en piove'l,
but lie thourfht that his treatini;' was not a coi'rupt practice
within the meaning of section ()(i, for reasons to which I
shall i-efer )))'esently. But it is broadly ai;i;ued l)y tlic
learned counsel for the ri:sj)ondent that, cncu assuiiiiiiL;-
these persons to hav-e been a;;'ents, thei'e was no corrupt
practice, because section (i() of iiie Act of 1(S(J8 is oiilv
intended to deal with the keepei's of hotels, taverns ainl
shops in which spirituous oi- fermented li([Uoi's a.e oi'diii-
arily sold, and to ])ro]iibit the sellinii- or u'ivin"- of li(iU()i'
by persons answerin.'^- tiiat description. If that be tlie
true interpretation of the section, it becomes innnaterial
to discuss the evidence of a^'ency. On the other liand. it
is contended by the counsel foi' the appellant that the
section is divisible ; that while the first part relates to
keepei's of taverns, &c., alone, the second extends to aiiil
renders penal the u'ivin^- of li(|Uor by any p(,'rson to aii\-
person in the electoral di\isi()n during' pollini;' day : nml
that consequently, if i^iven by an agent of the candi<lHte
during the polling houi's, the eh-ction is avoided by foix-c
of sections 1 and 3 of the Act of lb7-^ (•)(> \'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'<<us cases in which lan-
guage (juite as wide and terms (juite as general have Vieeii
restricted l)y a consideration of the [)r('\-ious state of the
law, the express object of the statute, aii'l other eii'cuin-
stances which the Courts have held fitting to be regardcl
in arriving at the intent of the Legislatur". [The h-ai'iied
Judge here citetl and reviewed the following authorities ;
Haickius V. Gfif/icrra/r (() I). MeN. k' G. 1); Lunl Audio nd
V. WcMviin^frr Lural Board oj Worhs ( L. W. 7 Chy. .")!»7):
.Sedgwick on Statutory and Constitutional Law, 'l-\-\-\
LS75.]
SOUTH ONTARIO.
4 ■')•")
These references are fiutlioi'itv sutl,.-ient, not onlv t'i>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 hea<lin;4' of
" keeii'h.^ the peace and i,n)od order at elections." S(jiiic
iiiiulit has been expressed whether it is allowable to ivfer
to this headini,' ti])on a <|Uestion of the proper construction
of one of till' sections coming' tnider it. It .seems to me
that it can be taken into account for the purpose of deter-
laininu' the immediate and special ol)ject which the Leijjis-
hiture had in view while passinn' these .sectic^ns, ami there
is no d iiiw t;liat the natui'e of this object may have an
iiiiportai't ii 'aiine' upon the interpretation to be ^-iven to
language of a general character. In Uri/an v. CJn'/if (o Ex.
•S()S;, Pollock, C B., refers to the moile then " recently
introduced in statutes, namelv, bv havinsj; certain clau.ses
coimected by a sort of preamble to each separate class
of clauses, which preamble may I'eally operate as part
of the statute :" and he decides that .such preamble
must be read in order to ascertain the meaning of che
Legislature. The .so-called preamble was tliis : " And with
respect to transactions witli the baid<rupt, «.^c., be it en-
acted." ( )ur statute may fairly i)e read as if expressed
thus: " For the purpose of keeping the peace and good
oi'dei' at elections, be it enacted," Szc. In Itahinson v. CoJ-
IbKjwood (17 C. B. N, S. 777), the woi'<l "trusts," u.sed with-
out any limitation in a statute, was construed in the light
of the })reandjh,' to mean "trusts in favor of the grantoi'."
It appears, then, that the object which the Legislaturt-
had in view when it passed the .sections in the Consoli-
dated Statute was the maintenance of peace and good
order; and that the object was still the same when the
corresponding sections of the statute of 1 808 were enacted.
HA
456
PROVINCIAL ELECTIONS.
A.D.
iii<
According to tlie principles of construction to wliicli I
liave referred, we ou<;lit not to assume tliat the Legislatuiv,
wliicli in the associate clauses was re-enacting the foi-iner
statute, contemplated such a wide extension of the l;i\v
as is contendeil for Ity the appellant, unless it has nscij
language clearly expressing that pui-pose. How wide that
extension would he is manifest from an examination of
the !Slst section. There is no room for douht as to the
description of persons who were atlected hy its provisions.
It enacts that every hotel shall he closed, and no spiritu-
ous or fermented li(|Uors shall he sold or given dui'ing the
.said period, umler a penalty of SlOO against the keepei-
thereof, if he neglects to close it, and under a like penalty
if he sells or gives litpior. This language is free from all
amhiguitA'. The persons subjected to a penalty for giving
or selling liipKjr are the keepers of the houses directed to
he kept closed. In the statute of l8(i(S the phrase-ology is
— except in scmie pai'tieulars immaterial to the present
argument — precisely the same until the part relating to
the penalty is reached. The injunction t(j keep cIoscmI
and the prohihition against such a gift are expressed in
the same terms in both statutes. If, then, the later statute,
pas.sed with the .same object as the earlier, and coinci<ling
with it in the corresponding sections directed to this
object, is to be extended from the comparatively narrow
circle of keepers of such houses to the general body of the
pulilic, it is .simply because in the part of the section
relating to the penalty there is no definition of the per-
sons who are rendered liable. I entertain little douljt
that the draftsman who penned the (iUth section thought
that in substituting the words, " under a penalty of
i^lOO in eveiy such case," for the definite language of
tlu' 81st section, he Avas expressing the same thing in a
more conci.se foi'm. It may be that in aiming at a little
originality by this consideration, he has fallen into oh-
.scurity ; but such things have l)een known to occur in
Acts prepared by .skilful and experienced hands.
lS7o,]
SOTTH ONTARIO.
457
RcLfav(lm;j^ tlic (i()th section as it stands, it is necessary
to supply l>y 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<l into tlie first clause of the .section, it appears to
me that they should equally he introduced into tlie .second
clause. For my own part, I pri'fer that construction to
one that virtually .seeks to introduce into the same clause
the words " hy any i)er,son." The incon\enionces of such
ji consti'uction, some of which have lieen Li;-i'a])hically
drscriheil hy the learneil Judu'e hejow, ai<' in tlu'iiiseh-es
sulKcient to induce the Couit to pause hefore adoptinj^' it.
T do not repeat the other constructions which have been
presented hy my brothers Burton and Pattei'son, in con-
tinuation of this view, but content my.self with sayin^i,'
that if this be the con-ect view to take of the .section, it
follows that it is only violated by the n'ivini;' of liijuor,
wlien the n'iver is a keeper of one of the houses directed
tf) lie closeil ; and that no at^'ent of the candidate will, by
li'iviui^' licjuor to any person within the prohibited liours,
hi: n'uilty of a corrupt pi'actice avoiding' the election, uide.ss
he i'- the keeper of such a house.
1 only (k'sire to add tliat 1 entirely concur in the ivmarks
of my lirothei- Patterson up»on Clark's case. If his treat-
ing Jordan at Whitby, wliere Jordan was entitled to vote
and did vote, would have avoided the election, that would
have been the result of the treat he actually gave him at
Oshawa. The offence does not depend upon the character
of the person treate<l. Jt does not matter whether he is
iir is not entitled to vote at any particular ])lace, or whether
he is entitled to vote at all.
Tn my opinion the a[;peal should be dismissed with costs.
Appeal dismissed witli costs, {c)
(o) No report of thiso.isu viis sciit to tliu speaker.
!
m
4.').S
!'H( ) V I N'C I A r, E FLECTIONS.
[..v.n,
Mt'SIvOKA.
h I*
Before Mit. Jisticf. Wif.sox.
l^iiACKiiBiiMiK, .'n//i to J.li-il .hthj, 1111(1 17th Si'plfinlifr, IS^',.
Before the Ootrt of Aim'eaf,.
ToitONTO, /')'/// Jjiri iiihir, 1S7''>, 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 <li:irL,'e(l witli Mi'Vinal acts of cnri'iipt priiLticc. I'lai.li
Me])iirati' cliargo Wius supported l)y tlie ovidciico of one witiiuss, and was
deiiit'<l or explained hy the respondinit. The leai iied Judge trying the
]ijtitioii hehl, il'at if eacli ease stood hy itself, oath against oath, and
each witness ec|ually ciedihle, and their !)eing no collateral eii'cuni-
stanees either v\ ay, he would have found that eaeh ease was not j)r(>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 eondiine<l testimony of all tlie witnesses, he held the sepa-
rate charges pi-oved against the i-espondent.
Jfi'l'l by the Court of Appeal (reversing Wilion, J.), that in election eases,
each charge constitutes in etl'ect a separate indictment, anil if a .Iiidge
on the evidence in one case dismisses tin,' cluirge, the respondent cannot
be placed in a worse position because a numbiM' of charges are advanced,
in eaidi of wliich the Judge arrives at a similar conclusion, and tliere-
fore tiie separate charges above; re'^eri'cd to were held not sustained.
The respondent stated at a public mveting of the electoi's with refeieuce
to an alleged local grievance, that he undi'vstood it to be the consti-
tuti<)nal practice, here and in I'^iigland, for the Ministry to dispense as
far as practicable the patronage of the constituency on the reconi-
mendation of the peison who contested the constituency on the (iov-
e.'nment side ; and that he. being a supporter of tiie Government,
would have the patronage in respect to appropriations and appoint-
nients whetlier elected or not.
Hil'l, 1. That the respondent by such words diil not ort'er or promise
directly oi' indirectly anyplace or employment, oi' a promise to procuic
place or emi)loymcnt, to or for any voter, or any other person to induce
such "oter to vote, or refrain from voting.
2. (reversing ir//.>o/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 ar<fued liy the
counsel for tlie respective pai'ties. It will not he necessary
tn ivftT to any other of the cliarju'es than tliose now stand-
in^' for Jud,L;-nient.
The first of the cases relied upon liy the petitioner is
that wliieli is called the Hill case. The cliai'i;-(! as to this
case is that tlie respondent promised and u'uai'anteed the
said Hill that, through the respondent's inHueiice, he
should nevei' he called upon to pay certain timber dues,
if the said Hill would suppoi-tand vote for the respond-
ent. [The learned Judge then I'eviewed the evidence of
Hill am I of the respondent, and procee<led :] Tliere is a very
plain and direct contradiction between the two accounts
of these two witnesses. The fact whetlier Hill oi' tlu;
respondent first sj^ike of the dues .so claimed by the
(iovernment niay not he niatei'ial. It does not appeal* to
lie of much conse(pience who first introduced that .subject,
or at what pai't of the conversation it was introduced.
The iiuan (piestion is, was it, whoevoi* inti'0(hiced by, or
at whatever stage of the conversation it was inti"oduc(Ml,
held out in any form by Miller to Hill as a promise or
endeavor to procure any money or valualde considei-ation
Ml order to induce Hill to vote or refi'ain from voting:'
According to Hill's evidence it manifestly was; according
to the responih'ut's evidence it certainly was not. There
is iM other person wlio can speuk as to the conversation.
The counsel for tl\e petitioner argued that the fact of the
claim having been niaile by the (Jovernment on the firm
of which Hill was a member was somewhat e\traor<linai\\
if it Were one which was never intend('<l to have bt-^n
I'liforced ; and that Hill's evidence was very <lii'eet and
reliable as to the fact of such claim.
""""1
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460
PROVINCIAL ELECTIONS.
[A.n.
I
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For the n'sponUcnt it was ar,<,'ULMl that Kill in tlic foinicr
svvoiTi statt'iiU'Mt liad said Miller first asked him Imw lie
was j.(oing to vote, while, in the present examination, he
said that Millei- first spoke to him of the dues, anil tluit
the fact of the petitioner or Ids friemls havin^f taken a
wi'itten statement was to Ijind Fiill to adhere to it, wliidi
sho\ve(l they could not fully de[tend upon him, 1 fornic(l
no unfavoral)le opinion of the witness, or the manner or
his uiviiin' his (evidence ; I must act upon his testimony if
I l)elieve it to he true, and if I thiidv it has not liecii
answered nv lebutted by tlie evidence of the respondent.
The respcjudent is im(|uestionahly, on the face of tlic
in(|uiry, an interested witness, but thei'e was nothiiiL;- in
the evidence lie <^"ave, nor in liis manner of ^iviut-' it, wliicli
could oi' did excite any susi)icion whatever ai;ainst lii-^
perfect truthfulness. Hill, the witriess, did show he li;ul
some feeling or bias against tlie respondent, for he said lie
thought the statement in writing which he made against
the respondent would operate adversely to him.
If this were the only charge, and it rested oidy upon
the evidence of Hill \n support of it and that of Miller
against it, I should, without disbelieving either witness,
hold that as there was as much evidence against the
chai'iie as there was for it, it must l)e considered to have
failed. It is the fact that because l)oth witnesses ai'e
Ijclieved the case must be held to have fallen through. If
one were believed dihd the other were not, or if more credit
were given to the one than to the other, the decisii>n
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<l ot
fact ^ That will depend upon the other charges which
arc still to be considered ; for if in the otiier cases I find
tliat they are respectively Italanced liy the evidence of
the respondent, the same witness in all of them as against
IN?.'.]
MISKOKA.
■4()l
sfVi'ial witnesses — one, howevci', only in t'ucli case — I
shoiiM then feel oblij^ed to rely iMorc upon the inipai"-
tiahty and tnitli of tlie '^vhUt nnniliei- who testiliecl
against the respondent, and whose evidence and characters
were respectively, foi- i'elial»ility and vei-acity, as niucli to
1m' (le})ended upon as were those of the respojideiit. 1
liave already stated my <*pinion o-n tliis point in the mat-
ter of the Ncn'tli Ihajnii: cmhi (n), in which also I acted
u|"in it.
1 shall state the conchision I have come to on this
cliaru'c when I liavt^ ;j;one over the other chai'^cs liefore
mentioned. I sliall jkIss liy foi- tlie pr<;sent the chaise
lespectin^" the speecli of the respondent at Matthias" Hall,
aiiil take up the cliarge le-Iatin;^' to Sullei-in's ease, in
which tlie respondent is cliar^n-d with otferin^', that if
Sufl'erin would suppoit liim, he, the respondent, would
Ljet hini th.e laying' out of S-iOOO on the Parry Sound
Read.
The respondent's counsel contended that it was ahsurd
to snjjpose the respondent would, in the short space of
two or three minutes, in a hurried inttsrview, make a
corrupt promise to a man who had already pledged his
siippoi't to the respondent. There is no d()ul)t it was
not a long" conver.sation which took i)lace hetween them,
hut they 'ooth agree that there was mention made of
Sutferin being about to i-un for reeve, and about the ex-
pemliture of the i?.S,()00 bi.-ing made. The parties differ
ill these respects : Sutferin says the respondent applied
to him to give his suppijit, and that the i-espondent said
lie heard Sutferin was going to run foi- reeve, and that he
wished Sutferin to go in for it aiwl to support him, ami
that lie (tlu' i-espondent) would get Sutferin the laying
out of the .S3,000, and that Sutferin said it was all right,
lie would support him.
The respondent says he aske-d Sutf«.'i-in how the matter
was. who said that the re.pondent would have the ma-
jority in the townshi]) ; that he, Sutferin, said he was
\
!■
■^
(a) KefMjrted Uominioii Klections, 1»74, poHt.
4()2
I'HOVINCIAI, i;i,ECTIONS.
[A,l.
IJ^oinj,' to nitl \'nv ircvc, lUld lie 1i()))(m1 lis ifcvr that IV-
spomlciit witiild SCO tlint tlu' ('(Hiiicil hud the hiving' nut
of the S.'{,()()(), and that the icspoiidcMt sui<l Siitrfiins cluiiii
woidd hiivn to 1)1' coMsichTcd ut the jn'opcr tiiiii'.
The chief ditrt'rcnc'cs jii'c that Siith'iiii says the ics|)i)iiil-
cnt said he wanted SuH'erin to support him, and he wmilil
<fvt Snlh-rin the hiyini;' out of the money, and Sntleriii
said it was all riyht, he wovdd siippoi't him ; while the rc-
spondent says it was Sutterin who said lie ho])ed iis ivi'Vo
the I'espondent wouhl see the C'ouneil had the liiyiiii;' eiu
of the money.
The statement of SuHerin is distinctly coupled with
the exercise of his ri^ht of votinjjj ; the statement of the
respondent is in no way coiniecteil with it. The state-
nicnt of Sutl'ei'in shows a pi'onuse hy the i'espondent:
the statenunit of the res[)ondent shows a hope only ex-
pivs.setl hy Sutterin. The statement hy Sutleiin shows a
])er.sonal inducement held out hy the respondent to Snf-
I'ei'iu for his support ; the statement of the respondent
sliows a mere hope expi'cssed l)y Sutferin that the ('ouncil
would u'et whatcNcr advantaite there was in lavinn' nut
the ai)propriation, hut at the same time they would havr
that as distii\et from the election. The one statement i<
a corrupt otter oi- promise hy the candidate of pi'isniial
gain to the elector, in consideration of support at the elec-
tion heing g'iven ; the other statement is a mere hope di>-
severi'd from tlu.' election, ex[)ressed hy the voter to tln'
candi<late, that the respondent would .see the Council weiv
allowed to appropriate the money.
And the (piestion is, " Which account of the conveiNa-
tion should 1 acce])t ^"
If this stood l»y itself, as hefore stated, oath against
oath, and each side eijualh" credihle, and no collateral oi'
accompanying circumstances to aid me either way, I
.shouhl hold tlie charge not to he proved. But the other
charges, if severally .swoi'u to hy a credihle witness, ami
the united Aveight of their testimony is to overcome the
eti'ect of the respondent's unsupported word, I may lie
IS'.').]
MI'SKdKA.
4(i:{
(ilili^nl tit (ittiicli sucli iiilt'ijrcc (»t' iiiipnrtaiK'c to the v<>\\\-
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
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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<lation of the indiviihial who had contestfil jt
in favor of the Government" — not on the reeoiunu-ndatidii
of the person who lia<l contesteil the constituency in favdi
of the Government, if that person were successful at tin-
election, or were electeil, or, in other words, on recom-
mendation of the memher if he were a Government suii-
])orter, hut on the ivcommendation of the pcrsnii wliu
cuiifcstcd the constituency on the Govei-nment side, or, in
other words, whether he was successful or not.
Dill, one of t'^ ■ '"espondents witnesses, says: " To a
certain extent i;:!:er said, as I understoofi him. tliat.
hein<^ the siippo.'er of Mie (Jovernment. lie would haw
the patr(Mu-,ge 'A hi 1 r ic was elected or not." Meveis,
also oiM> 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/e<l hy the common law of tli'
Parliament of Enoland,"' accoi'ding to the 'Mi Vic., c 1
s. 1 ? Is such hinouat,^' an otter or i)r(jmi,se, directly oi
indirectly, of any place or employment, or a promise to
procure, ()ren<leavor to procure, any place or employment
to or for any voter, or any other person, in order to indiitc
sucli voter to vote or refrain from votino- f The lan^uaj.;v
was, in ett'ect, "I am the Government candidate, and. lie-
cause T am .so, I shall have the pati-onaLje ami intlueiu'i'of
the (irovernment as to appointments and in the layiiiiidiit
of money a|)pi'o[)riations in the district roads, and in the
appointment of overseers for .such works, and I shall have
such patronage and intiuence whether I am elected or not,
and I shall take care that no outside persons, hut residents
only of the district, receive such appointments." I think
is?.-^.
Ml'SKOKA.
4():)
it is not an ort't-r or promise of any place or cmployinfiit,
or a promise to pi'ocure, or to endeavoi- to procure, any
place or employment to or for any voter oi- otlier person.
I think it is not so, because tlie number of overseers
in tlie district would be comparatively small for the ex-
penditure to be made there and tlie pionuse, if tuie were
iiiiide, was not exclusively a<Mresse<l to those present
at Matthias' Hall, but to the whole constituency. If the
n ""ipondent had said the distiict was about to be formed
into a county, and a sheriti' would have to be appointed
at once, and lie woidd have the dispo.sal of that office, and
lie wouM .see that a resident of the district would ^'et it,
1 think it could not proj)erly l»e said that the res[)ondent
had otf'ei'ed oi- promised a place or employment, or had
pittmised to procure, or had endeavored to pi-ocuie, a
place or em])loyment to OI' for any one within the meanini;'
nf that .section of the Act.
The expectation that each one of the constituency would
t'driii or mij,dit form on such lan<fua;^a', W(»uld be of tlu'
vaii:uest and most indefinite kind. But if the i-espondent
liail said that 100 or 500 men would lie required for a
|iarticidai' work at good wages and for a good while, and
l:r would have the .selection of them, ami he woidd take
care they were taken from the district, and that no
outsiders shouhl be emi)loye(l, ami that he would have
that patronage whether he was elected or not, 1 am
(Jisiio.sed to think that such a case mi^ht be brought
within the operation of that section of the statute. For
although there was nothing addres.sed to any particular
100 or oOO, and the persons to be .selected could not then
!»■ known, yet the ••ivat nundier who were to be em-
ployed would aff'oi'd s(jme gi'ouml for each person sup-
lioslMl.
le miu"
ht 1
le one OI so mimerous a liody; anu m
that way, although the offer or |ii'(»mi,se were not made to
Jiiiy defined body oi- number of per.sons, it being made to
Mich a body that it might naturally opeiat*' practically in
iidvantaging a very great nund»er of people, and raise an
expectation that the pi'omise .so made would Ite oi- might
'
i
¥
4()()
l»R(>VI XCI A I, ELECTION'S.
[A.I.
lie fultill('<l to oaoli one in his own case. A i)i'onii.s(' t<i
two to ciiiploy one, not naininj; which ont', wouM, in mv
opijiion, he within the Act; a promise to one thonsuinl td
eniploy one of them wouM, in my opinion, not he witliiii
the Act. In tliis .listrict there were at least 1,400 vut.-rs
])olIe<l. Those capahle of hein;^ overseers, oi- wh(» mi^iit
pi-ohahly look foi' oi- take the office, I only conjectuiv.
I'ei'haps theic were sevei-al lunuh-ed, an<l as the expi-nili-
ture was not very larj^e (I am not sine whetliei- it \vj'.>
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<lent. If it is a violation nf
tlie Act, or of the connnon law of the Parliament of Kiin"-
land, it must he hy reason of its amounting- to umhu- in-
fluence 1)3' the res[)ondent.
The 72nd section of the Act ilefines what is undue in-
fluence under that Act: "Every person wlio shall directly
or inchi'i'Ctly, hy hinjself or hy any otlier prison on ]\\>
hehalf. make use of, or threaten to make usi- of. any force.
\iolence or restraint, oi' inHict, or threaten the intlicliun \<y
himself or hy or throuLth any other person, of any injury,
dama«.je, harm or loss, oi- in any manner j)iactisr intimi-
dation upon or ajjfainst any person, in order to induce dv
compel such person to vote or refi'ain from voting, iVc
shall ho deeme»l to have ciMumitted the offence of undne
influence, and shall incur the penalty of €200.'
Can the case he l)rought within the terms just (juoteil
of that section !* If it can it nnist he hy the folhtwinu
words: " Every person who shall directl\;or indirectly
. . make use « f . . any restraint . . or in any
nuinner practise intimidation upon or against any person
in order to induce or compel such person to vote or refrain
m-
.(•tly
his
)l'Ci'.
1 '•>•
my,
tiuii-
;, vVJc.
u«Uk'
Ui)ti'<l
iwinij;
oetly
1 any
rrxin
fnvin
187').] Ml'SKOKA. 467
fioiii voting . . shall l»e (Iceined to havr coimiiittcMl
the (iHt'iiCf of umlue inHuence. " The word rrMrtiined is
iiscil, it will he seen, in connection with fat'cf or riolrnvv,
anil SI) may he said to mean some physical lestraint. But
ninuici Inis heen held not to he confined to indicatinj; only
liodily injury. The appreheiiNion of heing excluded from
tlir sacr-uiuents of the church, and tl»e menace of eternal
jiiniishnient, might he far more powerful than any thi-eat
of corporal punishment. Vouixtij of DaJtlin ri'^,\ 1H27
(Esj)inasse 57, nofi). So restraint does not mean only cor-
iMiial continement or the fear of hodily liarm. Taking
awiiy tl>e will of the per.son hy threats oi* hy improper
iiiiiuis of any kind not willin<dy a.ssented to hy the per-
vin, hut lirought ahout hy the exercise of authority oy
l>y 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 <listrict, a newly .settletl, sparsely peopled,
and what may be called a poor settlement ; pooi- becau,**!'
newly settled, and because the laboi-s of the people arc
turned to the clearinjj of their land and the establishment
of a home for their families. They have not received and
are not receivinji the return as vet of their labor. Their
effort is until they can make their land remunerative :
and it was designed to operate upon them prejudically
J !«.?■■
IK/!
■•"'"i~ nf' ijT '"v
1.S75.]
MrsKOKA.
460
ami unfluly as nttt'ctiii;^ their choice of a candidate; for, of
course, tlie camruhite in dispensinj,' liis favors will jirefer
those who supported him to those who opposed him. I
don't place any stress upon the respondent eallinj^ himself
the Ooveijunent candidate or tlie ministerial candidate;
it is the connnon mode of speakin;,'; all that is meant l»v
it is, that ln' is the p(»rson that the party which supports
tin- Ministry has selected as its candidate. No one thinks
that the (Joveriniient or Ministry has actually selected u
candiilate and | ut him forwai'd as its nominee in the con-
test. ll<lo not think either that the respondent sayinj;
that <(m|HP'' custom, and hy parliamentai-y pi-actice he
would Im^lfel influence and patronaj^'e whether he was
fh'cled or not, alters the character (^r the force or effect of
till' lan^mai,').'.
It is the fact that the Minister in his depai'tment has
tlu' pati'onaLje of it, and that the contractor has the choice
of his workmen. And it would not lessen the ohjection
of their holdino; out wliat they could -lo, and what they
meant to do in the <listrict, an<I how th.y nieant to spend
tluir money and <listriltute their patronaife amonj.,' the
clt'ctoi's, by tellino; them at the .same time that they had
the riiiht and power, and it was the jiractice to act on
thi'se mattei's as they pleased — the Ministei- l»y custom
of parliamentaiy |)ractice, and the contractor because he
may do as he pleases with his own.
1 put out of consideration all those arL,'uments addressed
to the electors l»v the candidates, the t»ne savini; he is in
favor of a new I'oad, or a canal, or a railway, or some
other object, and his opponent 's not, ami that lie, the
speaki'r, will press the peifoi-nujice of that work, and it
will be a oreat advanta^a- for the people of the vmstitu-
tiicy ; because it i.s one of the tluties of a i\/^ ''esentative
to attend to matters of that kind, and he may as freely
s])eak in that manner on such subjects as he may speak on
clianj^'es in the school law, or on the tariff, or on any other
matter not so peculiarly affecting the constituency. There
is a difference Ijetween such a line of argument and the
H
ill
n
m
1
l^'
I'll''
ii
i-ii'
470
PRO VINCI Al. EI.ECTIOXS.
[a.d.
candidate sayinj^ lu* will have tlu; patronafjeainl inHucnci'
of tln! (Jovcniiiient in all the work and cxpi-ndituif to In-
done or to l»e luadt.' in the constituency, and that he will
have theiM whether lie is elected (^r not, and that he w ill
see that no outsiders participate in these Itenetits, even
althouj^li he should add that he wouM have that powir
and patronaj^e accordinj,' to the custom of the parlia-
mentary practice in such cases. I consider that, fairly
interpreted, to he the exercise of undue inHuence, not <jf
Government inHuence, hut of inHuence in the name !.f tii.-
Uovernment hy the respondent, and if it he not tliut. or
do not mean that, it means nothin<;'. But I have no doulit
it was meant for a pur[)ose, and that i)uri)ose could onlv
have hcen, and in his case it was, I think, unduly to in-
Huence the electoi-s in tlieir free choice and deliherato
Judj^jment of a candi<late.
The conclusion 1 come to in reference to this charj^'e is
that 1 think the resi)ondent did make use of restraint or
practise intimidation upon the occasion in (piestion upon
ora«^ainst the eU'ctois pi-esent at the meeting' at Matthias'
Hall, and perhaps upon or against those who weie not
present, in order to induce or compel such persons to votf.
or refrain from v<;ting, at that election. Or if the case «lo
not come within that section of the statute, I am of opinion
it must he undue inHuence according to the common law
of the Parliament of Englan<l. New modes of uinlue in-
Huence must or may he practised from time to time which
may not he covered hy the written law, hut the princii)lu
of the law itself, written or unwritten, is that every elec-
tion must he /nc (2 Co. Inst. IG!) ; \V. At M., sess. 2, c. 2,
sees. 1, 2 ; 2 W. Ac M., se.ss. 1, c. 7) ; that the electors must
he allowed freely and indiH'erently to exercise their fran-
chise ; anil it is for that cause an election is vacate*] hy
riot or other .serious disturhance, or hy general drunken-
ness, or hy general hrihery, although neither the sitting'
memher nor any one for him had anything to do with
such acts: Lichjie/d m.sc (1 O'M. Ac H. 22); Bradford am
(1 O'M. & H. 30) ; Barrley case (1 O'M. & H. 143) ; Stuh
\f<^ \
ls7.').]
Ml'SKOKA.
471
fnnl rme. (1 O'M. k H. 22H) ; Tnmimrth rose (1 0"M. &
H. 7'0. Howt'vcr varicil or novel the acts or coinhict of
tlit'sc may '»<' wl»o proccf"! in sneh a inanncr as to violate
the t'n'f(loin of the election, can make noWitieivnce in the
law. If the law itself he hrokeii, if the whole election he
ivn<lere<l in any manner oi- hy any persons not free, the
iisuit must he tliat it will he vacateil as a void election.
it' the whoh; election he not so att'ected, hut the sittinj,'
iiieinhei- or any of his ayvnts is or are charj^eahle with
certain acts of the violation of such fi-eetjom, the return
nf the election of that candidate will he avoided.
Rut if tlie candidate is no way chari^eahle with any
iiiilividual case of violatin;.^ the principle of a free election,
his seat will not he ali'ected ; the vote or votes which .nay
lie atf'ecte<l hv it will he deenietl to he illeifal. There is a
rfsdiution of the Commons of Decemher, 1770 (•i7 Com-
mons' Journal, •)()7), aj^ainst the interference in elections
liy ^^inisters of the Crown : "That it is hiirhly criminal
in any Minister or Ministers or othei' servants un<ler the
Crown of Great Britain, dii-ectly or indiiectly, to use the
powers of office in the (dection of representatives to sei've
in Parliament, and an attempt at such int1\ience will at
all times he resented hy this House as aime«l at its own
honor, (kij^nity, and independence, as an infrino;ement of
the dearest rights of every suhject throughout the em-
pire, and temling to sap the hasis of this free and hajipy
constitution." — Rogers on Elections, f)th ed., p. ."{70. In
Clianihers' Election Law, p. 874, it is said the interference
of Ministers was made a piincipal giound of avoiding the
flection in the Duhliti rose, \H'U. That case I have not
seen. The only one I have seen whei'i' a charge was made
.iL^ain.st the interference of Ministers of the Crown, is the
Uinrr case (Wolf. & Br. 121 ).
If it is highly criminal in a Minister of the Crown to
Use the powers of office in electoral contests, it nnist he
ohjectionahle for a candidate to a.s.sert that he has and will
have those powers, alth«iugh he is not in office, l)ecause he
is the Government or ministerial candidate, whatever may
ill
■11
>»" •■ . \ ?^
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<l, ally oi- suppoitei- of the Minister,
must be alike vicious ami objectionable. Of course, in
all of these cases I am assuming; that such a course df
]»rocec(lin},' is adojiteil with the intent mainly to inHinncf
i\ni election: foi\ as f have already saiil, tin- intent is
everythinj^ in such a case. These powers of otlice are
the patronat,'e and intluence which that ofHce confers.
The exercise of that patrona;,'e and inHuence by dele;.ra-
tion to a ministerial supporter is <|uite as effectual to
operate perniciously on the freedom of elections as if the
powers were exercised by the princijjal himself. I see hd
ditt'erence between the Ministei- sayinj.; to the eleetois in
an electoral district in which there are Crown lands to lie
valued for the .settlers, " I have the jiower and patronage
of the valuation of all your lands," <»i', " I will have the
valuation of them," if said with the intent untluly tc
intluence the election in which he is a candidate oi- the
supporter of a candidate, and another person (not a Minis-
ter, but the fi-iend and .supporter) sayini,' the same tiling'
by reason of his beint,' such suppoitei- ami of his contest-
ing the constituency in favoi' of the CIttverinnent, if such
per.son .say it with the like intent; ami the same thinj;
applies to langua<i;e of the like kind a<ldre.ssed t(» hmiber-
raen with respect to lumber dues in their imposition, i-eiiiis-
,sion or otherwise, and to the expenditure of Government
appropriations in the openin^;' of I'oads, or in the perform-
ance of other public works.
I am oblitjed to find this chari;e has been .su.staine<l.
I nuist now dispo.se of the other charges, relating to
the alleged remi.ssion of timber dues to W. J. Hill, and to
the cappropriation by Sufterin (jf tho road money in his
town.ship. These charges depend not so much on the
credibility as upon the weight of testimony, and I fiiii
now disposed to adopt the ca.se of the petitioner with in-
spect to them, partly because of the weight of testimony
by their united force, and partly because they are to .some
^Iji^plllllll^^f
1n7.->.]
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 iespon<lent used as an
ai';,Munent on these occasions, as it is .saiti he <litl,an«l as he
iiii(|Uestioiuiltly <li<l <»n the occasion which is the suliject of
the last char;^e. I sliouM have lieen ^'hul to have lt«'en
s|iaieil from pronoiuicini; any opinion on the other two
(•liar;,'es. An<l I am not sure I shouhl have found as I
have upon them l»ut for the conclusion to which I have
ciiiiie with respect to the last char<,'e. Theeviileiice wouh!
have warranted me in one view in fintliu'' adversely to
the respondent upon them, hut not necessarily so.
I 'poll the whole, with much concern and with an earni'st
ilesire to di-cide fairly Itetween the parties, 1 must find
these chaiji'es ahove enumerated to have heen j»roved l>y
the petitioner a^^ainst tin- ri'spon<lent. Ami I direct that
the cost shall aliiile the result of my tintlin<^' >ipon the said
|i(tition.
1 have retaine<l this jud;,'ment foi- a consideral»le time
ill older to atlvise with some of the .Judj^es upon a point
which has not hefore arisen here. I am hound to say that
^iiiiie of the learned .ludycs I have consulted do not a^^rie
with me. 1 have not het-n ahle to adopt their opinions. It
lia-< also heen a (piestion with me, and that too has heeu
iliseus.seil, whethei', as I desii-ed atlvice, which indicated to
sdiiie extent a douht in my own mind, I should not '^'iw
I'rt'fct to that douht Viy decidinj,' for the respondent, and
particularly in a case which is attended witli such hi^dily
piual consequences. 1 liave not been ahle to adopt that
view, because I do not entei-tain .such a de«free of douht
as would warrant me in adoptin<f that course. I should
Ljladly have done so if I could have done it from convic-
tion. But I have not that conviction, and I cannot force
myself to it from the opinions of others, however hijjfhly
I may prize their advice and judgment. I must, after all,
act on my own responsibility and judgment. The conse-
(lUences i-esulting from an adverse judgment to the re-
47+
IMt )VINriAI, K?,Kf'TH>NH.
[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'<l to ancttlu'i- ti-il)nnal, ami I for out* shall in no
way it'^'ii't if till' conclusion I hav<' felt olili;rc<| to com..
to shouM not l»c the opinion of the hijfhcr Court.
The I'csponilcnt thereupon appeale-l to the Court of
Appeal.
Mr. D'Altiiii Mi<\nili!i, (IC muf Mr. lirf/nni'r for ai)pfl-
laiit (respuixlent in the petition).
Mr. M. C. C(iiiii'riiii,i.^.C, nmf Mr. lioalthrr for resjxjiiileiit
(petitionei).
J>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 enou<j;h held that on a petition
chari;in<^ any corrupt practice, the i'espon<lent is, in a casr
of even and fully counterhalanced testimony, entitled to
the i)it's»niiption of innocency to turn the scale in his favor.
Now the question presented in the present case is, whether
the evidenci' can l>e 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.si<lt'rt'<| ; fur if in tlif otlu-r cuvs I Hii«l that tlit-y
lliv respect ivt'ly l>ulaiK'c'<l hy tlirevidt-jjcf of tilt' rt'spoiid-
I'lit. tin* HR'ne witness in iill i>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'ove<l in law against
the opiiosin;,' testimony of the i'espon<lent."
In the North Jienfrciv cdse tliere were nine independent
chaij^'es of corrupt practices conunitted hy Thomas Murray,
the lirother and a<,'ent of the ivspondent. Each charLje
was proved hy one witness only, and was hased upon
iitfei's or promises, not upon any act of the agent. Ad-
mitting,' the general circumstances and much of the con-
versation, and in the very words of each witness, Thomas
.Murray ixave a different color tcj the language and a
iliti'erent turn to the expression used, which altei-ed the
meaiiinir of the conversations detailed l»v the witnesses,
and so constituted in effect a complete suhstantial denial
of the character of the chai'ge attempted to he proved, and
ill many respects lie directly contradicteil the witnesses.
The learned Judge discussed at some length the <piestion
as to whose testimony he should act upon, and (jUsei'ved :
" It is impossible to avoid seeing and feeling that the
476
PROVINCIAL ELECTIONS.
[A.D.
more frequently a witne.'.s is contradicted by othors —
although such opposing witnesses contradict him on a
.soparate point — the more is our confidence in that single
witness affected, until at length, by the number of con-
tradictory witnesses, we may be induced in effect to dis-
believe him altogether. It is difficult to believe that so
many are wrong ; it is easier to believe that one is wronf,'
so many times ; and the more there are who speak against
him, the more we are led to believe that he is the one who
is in the wrong. . . . The ijuestion of veracity does
not depen<l only upon the strength of numbers, noi- in
some cases does it do so at all. Its true basis is character.
It is upon the ((uality of the evidence, and the point is to
determine that tpiality." In tlie application of these; obser-
vations in several cases, the determination was atrainst the
respon<lent, although it was expres.sly stated that if each
case stood alone it would have been decided the other
way. In one case the learned Judge said: "I »vould, as
I have already said of other charges, decide this against
the petitioner if this were the only charge; but as it is
one of a series of charges, eacli one of which is supported
by a different witness, I do not know what I can do, even
in .so small, I may say so trivial, a matter, unless I give
effect to the accumulated weight of testimony, when I
have no reason whatever to doubt the truth of the re-
.spective witnesses who maintain the,e charges."
I have found no reported case which deals with this
(piestion. On an indictment for perjury, the oath of the
defendant, which is charged to be false, is nevertheless,
for certain purposes, assumed by the law to be true ; that
is, to warrant a conviction it is held neces.sary to have the
evidence of two witnesses, or if only one, that " there be
some documentary eviilence, or some admission, or some
circumstances to supply the place of a second witness "'
(per Tindal, C. J., Miff. v. Parker, Car. & M. 689). In liaj.
V. Yates (Car. & M. 132), Coleridge, J., held that one wit-
ness was not sufficient to sustain an indictment ft)r per-
jury ; that this is not a meie technical rule, but a rule
,1;' '»
mmm^^.
mmm
1875.]
MUSKOKA.
477
fouinlc'il (in sulistantial justict'. The facts in Jirg. v. Parhr
an' wortli notin*,' : A debtor had made affidavit that lie
had paid all the debts proved under his bankruptcy except
two, and in support of an intlictiaent for perjury on that
atfida\it several creditors were called, each of whom
proved the non-payment of a debt due by ihe debtor to
liiiiiself, and this evidence was held insurlicient. The dis-
tinction between a criminal prosecution and the present
case is not to be overlooked, but considering tlie respond-
ent's position as a defendant in this proceeding, there is not
only the presumption of innocence of an oifence charged
ii;,Minst him in his favor, but also the maxim, applicable; in
civil as in criminal cases, " ficmpcr prcstimitur pro ncffnntc."
(See 10 CI, k. Fin. o.'U.)
Tlie respondent is charged with corrupt practices. There
were four cases on which the learned Judi^e took time to
consider, an<l three were held to be sustained, and the
election was declared void. He was in the position of a
< let'em lant accused of an offence before a competent tri-
bunal. Tlie presumption of innocence, until his guilt was
proved, was in his favor — having denieil the cliarge ; the
maxim above (quoted was in his favor al.so. The case as
]iut is one of even and fulh' balanced testimony ; each
separate charge is supjiorted by only one witness, and is
cuntrailicted l»y tlie respondent on oath ; ami, as I under-
stand from the iudirment delivered, would liave been
found against the petitioner if it had l>een 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 an<l Sutierin,
it is clear that he had not formed an equally favorable
opinion of their manner of giving their testimony or of
tlieir conduct as disclosed by themselves, remarking tliat
the behaviour of the latter, even on his own version of
what occurred in conversation with another witness when
going to vote, and his voting against the respondent after
voluntai-ily engaging to support him, had not been altoge-
ther creditable; whilst Hill had shown some feeling against
the respondent in giving his evidence.
We have before us, therefore, the learned Judge's vif^s
of the way in which the witnesses impressed him, and we
have to draw such inference from the whole evidence set
out on the record as we think he should have drawn, ami
find accordingly.
It nnist, in the first place, be borne in mind that no
acts oi. bril)erv were established; what is alleged in thf
two ca.ses of Hill and Sufferin (assuming them for tho pre
sent to constitute corrupt practices within the meaning o,"
the statute) consisted merely of offers or proposnla to bribe.
In such cases it ought to be made out beyond all doubc
that the words imputed to the respondent were actually
used, because, as has been remarked in one of the decided
cases, when two people are talking of a thing which is
n(jt carried out, it may lie that the}'- honestly give their
evidence, Imt one person understands what is said by
another differently from what he intends it. Still more
shouM that be the case when the adverse finding is
'i' \ 'a*
>l;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<lge to arrive at a ditt'erent conclu-
sion, was wliat occurred at Matthias' Hall. The speeeli
there deliveretl induced him to adopt the case of the
jM'titioner with respect to these two charges also ; partly,
a-^ lit' savs, " because of the weight of testimony 1»V theii-
united force, ami pai'tly because they are to some extent
(if a like nature with the Matthias' Hall chaim's, i-estinu'
upon the inHuence or upon the alleg"d inteivst and intlu-
(iice of the ivspondent with the Government or Minis-
try of the day, which it is," he adds, "not improhahli'
the respondent used as an argument on these occasions,
as he unquestionably did on the occasion of the speech."
I can ([uite understand that a judge or a jury may find
tlieir confidence considerably shaken in a witness whom
tlu'V were at first inclined to credit, by his being contra-
ilicted by a numl)er of witnesses, although each witness
speaks of a different subject. Still, after all, it comes back
to the (piestion of what credit is to be given to the wit-
nesses on each side.
The judge or jur}', under such circumstances, would sci'U-
tinize the evidence of the witness with greater care. The
maxim of law is, '' pomlrmnfKr ttstcs nun inancrantnr,'" anil,
as laid <lown by Mr. Stark ie, no <letinite degree of pio-
hability can in practice be assigned to the testimony of
witnesses; their credibility usually depends ujjon the
special circumstances attending each jjarticular case ; upon
tlieir connection with the parties and the subject matter
of litigation, ami many other ciicumstances, by a careful
i:.'';|
480
PROVINCIAL ELECTIOXS.
[A.D.
consideration of which the value of their testimony !>,
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<iht is to be ijiven to it at all, be thrown into the
scale in favor of the respondent.
The only two charges in which there is a conflict of
evidence are tho.se of Hill and Sutferin. The leai-ncd
Jutlge, in the first of the.se cases — a case dependent al-
together upon the witness' precise recollection of the
words used and the way in which they were understoo"!
— re[)orts his conviction of the perfect truthfulness of
the respondent, and that Hill's evidence was given with
a manifest bias ; and he comes to the conclusion at first to
1«75.]
MUSKOkA.
4S1
liolieve the respondent — a conclusion wliicli, from a per-
usal of the evidence, I shouM also have arrived at, but
in the correctness of wliich I am fui'tlier confirmed Ity
two circumstances not referred to by tlie leai-neil Judge,
viz.: (1.) That Hill himself states that he did not rei;ard
it as a bribe at the time, but only awoke to the conscious-
ness of there being anything corrupt in it some six weeks
afterwards, when it was deemed necessary to bind him
down by a statement under oath. (2.) That it was deemed
necessary so to fetter him. These two circumstances,
apart altogether from the explicit denial by the respond-
ent, carry conviction to my mind that the learned Judge's
Hist impi-ession was the correct one.
In the Sulierin case it is clear that wlien the allegc<l
conversation occurre<l Sutferin had avowed his intention
to support the respondent, who was aware of the fact, and
iiny promise thus ma<le could not have l)een made in oi-dei'
to induce him to vote or refrain from voting ; and this
renders Sutlerin's version of it highly improbable. Ko
is, moreover, contradicted by two witnes.ses besides the
lespondent. Sufferin himself admits, "I was not induced
to support him by this otier of !**i,000 (that is, as to the
laying out of 8^^,000 on the roads in his township) ; it
made no definite impression on my mind at the time ; '
ami the conduct of this witness was such as not unnatur-
ally to call forth the remark from the Judge, that it was
not straightforwai'd dealing, and was calculated, and
perhaps purposely so, to deceive. This also, subject to
the investigation of the two other cliai'ges, he held to be
not proved. " But," adds the learne<l Judge, " the other
charges, if severally sworn to by a creilil»le witness, ami
the united effect of their testimony is to overcome the
etioct of the respondent's i;nsupp()rte-d word, I may be
obliged to attach such a degive of importance to the
combined testinxniy of these witnesses as to hold the
charges to which they severally speak as sufficiently
proved in law against the opposing testimony of the re-
spondent."
' 1! ■ ' (I
II!
! ;
m
482
PUOVIXCIAL ELECTIONS.
[a.d.
The learne<l Jiulr^o then pi-oceeded to investi<^ate tlu' ic-
inaininj^ cliarges, liohlin^' one of them n )t proved, and tlu;
other, viz., tlie Matthias' Hail speecli, is one ahout which
tliere is no conHict of evidence.
We may assume, therefore, that but for the learned
Ju<l<,'e's view of that speech, he would have disre^fanhd
the united force of the adverse testimony ; and liad lie
taken the same view of that speech which we ai'e inciincij
to do, he would not have varieil his tir.st decision upon the
other charges.
It would seem that hoth the respondent and his oji-
ponent claimed to he supporters of the Ministry of the
day ; hut that the respondent claimed to be the recogiiizcil
ministerial candidate, having been nominated by the Re-
form party. He claitned fui'tlier, that his opponent, having
originally pledged himself to support liim and then coming
out in opposition, could not expect to retain the confi-
dence of the (Government, and that according to his ideas
of constitutional practice, the pati'onage in the consti-
tuency wouM be in Ids hands, as the ministerial candidate,
whether elected or not.
It seems to be admitted on all sides that it was felt to
be a grievance of some standing, that strangers were sent
lip to superintend the work on the nmds, and the respond-
ent is sai<l to have stated that, whether elected or not, he
would endeavor to get it remedied. Taken in the most
unfavorable view for the respondent, wh.at he did say,
{iccordin<>' 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<luce or compel .such
jHison to vote or refrain from voting. This was not a
tliii at, nor does it come within the dettnition of physical
force oi' violence, or doing any loss or harm to any one.
Can it then l)e bi-ought within the remaining woi-cls, "in
any manner pi'actice intimiilation ?" To bring the case
within this Itranch of the .section, it would, 1 [tivsmne, l)e
iiccessaiy to .show that .some one had been intimidated.
But it appears to me to Ite ((uite impossible to hold that
it comes within this section at all. Thei-e was no attempt
to work upon the fears of anyone; it was lather upt)n
their hopes or expectations ; and would come more pro-
Iterly, if an ottence at all, within the bi-ibery clauses, but
the leai'iied Judge has himself given the answer to that.
Dai'on 13ramwell,in reference to the evidence neccs.sary
te 'i;ing a case within this clause, is reported to have
-•■ •' : ' \Mien rhe lany-uaye of the Act is examined it will
■■ :ound tliat intimidation, to be within the statute, nuist
litlmidation pi-acti,sed upon an individual. 1 do not
iiieau to say upon one person only, s(j that it would not
ilo if practised upon t\vo oi' a dozen, but there nmst be
an identittcation of some or more si)ecific individuals
affected by the intimidation, I will not .say inttuenced by
it, hut to whom the intimi<lation was addressed, before
32
)- : :i!
484
PROVINCIAL KI-ECTIONS.
\ 'i *
\n
ft t-
[a.d.
it could l)(! intimidation within tlu' statute, otherwise it
comes under- the hea<i of tjeni'ral intimidation. "
The sunL,'e.stion that the ottence was one at connnoii hiw
was perhaps sufliciently answered hy the statement that
no such chart^o was made in the ])etition, and that the
respondent shouhl not he culled upon to meet it. But
apart tVom that. \ aj)pi"ehend it would he necessary t(t <,'o
nnich further to sustain sudi a charj^^e, and to ])rove that
the intimidation is <jf such a charactei-, so ijeneral ami
extensive in itsopei-ation, that peoph- were actually intimi-
dated to such an e.xtent as to satisfy the C'oui't that freednm
of election had ceased to exi.st in consecjuence ; just such
evidence, in favt.as would he recjuired to avoid an clci-titui
on account of an oruani/ed svstem of ti'eatinjf or lirilui v.
(Ji'eat latitudes is necessarily allowed in speeches of this
kind; and to hold an election illegal hecause of the use df
such lan!jfuan(> 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<fht of evidoncc wliich
oimht justly to bo ro<iuii'c<l to <listurl» a pioecodin;,' of
that (h'sciiption ; " and looking;, I may add, to thr hi^ddy
penal consiMiUfnccs i-csultiiiif to thr rfsjxtndi'iit, and fiiid-
hvjf Tio cvidcnci' which, in my opinion, out,dit to outwcii^h
tlic <k'nial of thi^ i-ospon(k'nt, and justify me in finding
liiiii ,1,'uilty of the offcnct's (•}iar<,f»"<h I tliink we ou,<,dit not
td arrive at a conchision adveisc to him. and that the
appeal should hi3 allowed and the petition dismissed.
I'attkusdn an<l Moss, .IJ. A., eoncuri'ed.
Ajipeal allowed and petition dismissed.
(!> 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 — X<ii- trial
— W'illiilrainil of jwtithnt -Rcjusal to alluw xulmtitiitioii of pitifiuiK r.
Cliargos of corrupt priU'tiees, consistiii;; of promist:s of money ami ol ein-
pldx liRiit, \vt:r(! lliJidf :ij.'iiili.st tlic rcspoiKk'lit ;iiul one M., Iiis agi'iit.
Hntli tliu i-iispoii(l('iit anil his af,'uiit iU'iiio<l making any promisi'.s (jf
iiuiiiey, l)iit left tin; pronii.ses of umploynR'nt iinanswert'il ; ami tlie
.Iiidgo trying tlic petition (Dra/nr, (" .1. A ) .so found, and avoided the
oK'ction. Tlicrciupon the respondent appealed to the (.,'ouit of Appt-al,
.111(1 uiidei' MS Vic , c. .S, s. 4. ottered furtlier evidence hy allidavit,
speeitieally (iciiyiiig any otler or promise, directly or indirectly, of eni-
piiiyment. Dra/nr, ('. .1. A., who tried tlic pi tition, ha\iiig intimated
to the Court that iiad the rcspdiideiit and his agent made the explicit
denial as to oilers of money or cmployiiii'iit which it apjieared they had
intended making, he would have fonml for the respondent,
//'/'/. under these circumstances, that the finding of the Election C<nirt
bliould be set aside, and that a new trial shoulil he held before another
Judge on the rota.
Observations on the diflerence between an election trial and a trial at
Nisi I'rius.
The Court recommended the petitioner to withdraw his petition in this
ease ; and on an application for that purpose, another elector having
applied to be substituted as petitioner,
^id
Mi
4fS()
I'llOVINCIAI- ELKCTIONS.
[A.I,.
//'/'/, p< r Ihirtiiii, .1. A., tliiit as tin- Court r>f 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 ])ai<l noi promised to pay anythini,' ;
and that he would not pay one cent for a vote in any
shape whatever.
Another voter, Michael Hugo, and his wife swoic that
when canvassed by the respondent and Maddiiijan, money
was talked of, and that the respondent .said, " If he (Iln^'o)
got out of employment, he (respondent) would give him
employment if he would vote for him." The respomlent
swore that he did not otier any money in any form of
words or in any sha})e, or any inducem ^nt.
The respondent's evidence in each ca.se was contirineil
by Martin Maddigan.
Draper, C. J. A. [in giving judgment on this part
of the case, said :] " Although the respondent and Martin
Maddigan meet the statements as to money, or promises
IS?.".]
I'KKI,.
4,s7
(if iiioiicy, liy a full dcnijil, iicitlicr they ntu* any uthci'
witiifss touch tlu' <|Uesti()n of i'iiii)loyim'nt, which, us far
as 1 see, is unanswcrcil. 'I'his conchision nuikt's it my
ihitv to ilctci'iiiiiu' the election ami return of the i'es|toii(l-
ciit void."
Tlie icspondent apjieali'd to tlu- Coiirt of Aj>i)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<l respondent; an<l
that on the hearing- of the sai<l appeal the i-espondent
will ask that this Honoi'al>!e Court hear the atlidavits of
the said respondent, Martin Maddii^an and .lohn Mad-
li^an, s[)eci1ically <lenyinif the .said allcL^cd otl'ers or j>ro-
Miises.
The atlidavits above refiM're<l to specifically denied any
utler or piomi.se, directly or indirectly, of employment to
th<' voters referred to.
.][r. llhdiC, (.^>.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<l<,fment of the
f/DUi't, pointed out the ditierence that existed hetwet'n
an election trial and oik; at a Nisi Pi-ius Ctmrt, .showinj.,'
that in the latter there was e\-eiy facility for the analysis
and comparison of evidence, and the discovery and cor-
rection of error ; while at election trials, hy i-ea.son of the
usuallv larLTc mass of evidence taken, and the fact that
such trials were comparatively ncnv, the liahility to mis-
take' hy (jmission or mistake was nmch i^reater. Under
these ciicumstances, he thought it would he rather severe
if rules applicable to .Nisi Prius trials were strictly en-
forced at the Election Courts, especially when, perhaps by
w^^m
it-
h
I
i^l
4^ss
I'KOVINCIAI, ELECTIONS.
lA.D.
an ovcrsiiflit on tlu» part of counsel, imrtics mi'^lit (>.■
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 <lenial as to tin-
allo<,'»d otlers of money or cni))Ioyment which it ajtpemcd
thev had intended making;, he would have f(»und fur the
respon<lent. The ('hief Justice had further stated that he
was satisfi"d that tlw^ respondent and Maddinan had in-
tended makini; such denial, l>ut it not haviuLi,- heen made,
he was olilit;e(| to decidt^ aLfainst the i-espondent on the
evi<lence. (Tnder these cii'cumstances, this Couit could imt
allow the finding- of the Election C'ourt to stan<l. 'riny
would thei'efore L,'rant a new ti'ial, to he held liefore an-
other iJudn'e on the m/d. On account of the irksonieness
attcnilinn' the second tiial of the same case hy a Judjj[c,
and ha\ in;4 in view the advaidau'e of the evidence heiiiir
brought hcfore a mind new to the case, they deenie(| it
prcfcrahh; to havi' the trial con<lucte(l hy anothei' .ludire
on the rofa. The petitioni'r should seriously coiisidei'
whether it would not he hettei' to withdraw the jutilidii
altogethei' without costs to either party. 'J'he costs nf llir
foi'mer ti'ial and of the appeal to aliido the event of the
new trial.
Suhsecpiently, on an application hy the petitioner lo
withdi'aw the petition,
Mr. Justice Burton made the order for the withdrawal
of the petition, and on tlie 24th January, 1(S76, transniitte<l
the following report tliereon to the Speaker :
" I have the lionor to repoit to you, in accordance with
the re(|uii'enients of the 8f)tli section of the Controverted
Elections Act of 1S71, that an application made hy the
petitioner again.st the return of Kenneth Chisholiu as
member for the County of Peel, for leave to withdraw
such petition, was heard before me on the 19tli instant;
and being of opinion tliat the withdrawal was not the
"•"W^lpp^fwl
187»).J
LlNO)l,N (2).
4.S!>
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/ <lii:/i(>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<l that it was not verilied hy the atliilavit of the peti-
liiMiei's ;
III III, 1. That the petitioners might amend their particulars, and that tho
charges in tiie petition were wide enoiigh to cover the charge.
2. That as to this charge, tho parties had in fact gone into evidence
witiiout particulars, and that tho petitioners" allidavit verifying the
particulars was not necessary.
-iv.:i 1
mi'
V *i
490
IMIOVINCIAL ELECTIONS.
[a.b.
Where corrupt practices by agents, and others in the interest of tlie
respondent, atl'ected less votes than tlie majority obtained liy i]v le-
spondent at the election :
Hell, under ',\\) Vic., c. 10, s. .17, tliat such corinipt practices did ^mt
extend beyond the votes affected tiierel)y, and did not avoid tbeeiecti in.
Wiierc, in addition to tlie above corrupt acts, bets were made by agents of
the respondent ami others, witli a number of voters who were siij)-
porters of >'., 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 can<lidate.
Mr. Mnclcnn((n, Q.C., Mr. Hud(jiim, Q.C., nnd Mr. Citlrin
Browii, for the petitioners.
Mr. M. C. Camrron, Q.C., and Mr. Peter McCarthy, for
the respondent.
Evidence was given on hehalf of the petitioners on a
charge that Jolin Junkin, the financial agent of the re-
spondent, ha(' been guilty of corrupt practices in bribing
one Arthur llelcher. The evidence showed that the cori'upt
practice was an oti'er to the wife of Belcher to procure
the liusband'.s vote for tlie respondent in the manner set
out in the judgment. At the clo.se of the evidence,
Counsel for the petitioners contended that the evidence
su.stained the charge, and asked for leave to amend the
particulars.
187(J.]
LINCOLN (2).
401
Counsel for tlie respondent contended that the chai-r^e
relied upon was not in the ])articulars, and theiet'oiv, as
laid, it failed ; and that the evidence did not sustain any
charge of a corrupt act. No new particulars could now
In- allowed, for ]y^ „ae Act of 1870 the pai'ticulars must
1)(' verified by the oath of the petitioners. The aiuciid-
iiient would be in effect new particulars, and the evidence
WDuId have to l)e given over a<;ain. Besides, the evidence
of -NFrs. Belcher .showed thattlie petitioners had long been
ill po.ssession of the facts relied upon.
Patteusox, J. A. — The ainenduient is opposed on the
Lfiounils, amongst others, that the charges now asked to be
ailded are founded on facts which were stated in the
atlidavit made by Mrs. Belcher before the petition was
filed, and which has l)';en ever since in the hands of the
.solicitors for the petitioners ; and that the charges ought
to have been embodied in the particulars delivered under
tlie order in the cause, instea<l of the illusory .statements
then made, and which are neither supported by the
evidence now given nor V)y the information which it is
.sworn was in the solicitors' hands. This is a serious
objection, and upon it we .should refu.se the amendment,
as we did yesterday refuse one on the .same urounds ; but
in this case no objection was made at the close of tht;
jietitioners' evidence, but the responded called evidence,
not to rebut the charge in the particulars which the peti-
tioners' eviflence had not approached, but to rebut the
charge of offering inducements to the wife to procure her
to persuade her husband to yote or refrain from voting.
The charge has thus liei^n brought before us by both
parties; and we think that however strongly we disapprove
of the practice of paying so slight regard to the order for
particulars as to furnish as particulars a statement based
on no grounds wan-anting the oath now retpiired to
accompany the particulars, and to withhold the facts
embodied in the affidavit, which, by another mo.st repre-
hensible practice, had been taken a.s a fetter upon the
.ii
'
1
¥■
492
I'llOVINCIAL ELECTIONS.
[a.d.
conscience of tlie witness, yet we have to reffanj tliis
application as one to state on the record what has ah'eady
been investi^fatcfl as i+' it had been there.
It is t'urtlier objected tliat under .section 28 of tlus Act
of 1<S7() (oO Vic, c. 10), we cannot allow these amended
particulars without an affidavit of verification, and that if
they are received the chai\i;'e nnist be investigated aficsh.
We do not think this objection well foinided. The peti-
tion is wide »;noui!f1i to cover the charges in their amended
shape. The parties may go on without particulars if they
please, and this is in fact what they have done as to these
charges.
The amendment is ma<le under the power given us by-
section \V.\ of the Act of 1S70-71 (34 Vic, c :}), an.l by
General Rule No. 0, and has the same effect as any amend-
ment at Nisi Pi'ius. We do not read st-etion 2S of tin;
new Act as restricting this power.
[Tlie learned Judge here reviewed the evidence.]
On tilt' evidence we find that John Junkin did oH'er
Anne Belehei- a valualile consideration, by ottering either
to procure two months" rent to be tlirown oli", or that time
sliDuld lie given foi' the ]»ayiuent of that rent; and that
this was, within the worils of s(>ction (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 evi<lence,
that the whole' of what was dcme in the city was left to
Juid\in and othei-s to do ; Jind by the circumstance that
Juid<in was nametl by the respondent as his Mnancial
agent ; and Junkin's evidence that lie constantly resorted
m
WW^
m
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ii
ISTO.l
LINCOLN (2).
4m
t(i the respondent's office to meet witli the other peisons
who were canvassers lik(! himself, ami compare proijfress,
and otherwise promote the election of the respimdent.
Tlie respondent may not have been at nny of these meet-
iiii;s, or have any personal knowdedt,'e of tin; persons who
wrre there; but his clei'ks were tliere, and lu; hud the
iiiijiiis of knowdedge, and must be held, as tlu; projx^r
inference of fact, to have known of wliat was takinjjf
place.
Bi.AKK, V.-C, concurred.
An oidei' w^as then made appointinjjf the times and
pliU'cs for a scrutiny of votes to be taken before the Re-
gistrar (Mr. (,'. A. Bi(juu;h ) in each nuniici})ality of the elec-
toral division.
I'Mdcnce was ji'iven that one Dextei- Potter was an
agent of the respondent, and that on the night preceding
the flection he made bets with two voters, John Jackson
and Aluam Hollingswo!"tli, in consecjuence of which bets
tliry voted ibr the respondent.
After argument, the following judgment was given :
Patthkson', J A. — ^Wr hold that the agency of Dexter
Potter is established, and tliat, therefore, the charges of
biiberv by an auent are made out in the cases <jf Jackson
and llollingsworth; l)ut the eti'ect of these acts of bi'iiiery,
either l)y themselves or in connection with the Belcher
case, do not extend beyond tlu^ voti's alfeeted.
I'iviilcnce was then given of the payment of li?l.")(), in
sums of S.')() each, to hiti'iek Heiniegan, John Y. (^ish-
iiian and 'i'honias Nihan, by (^ne Ai'thur Aiken, on the
22iid or 2.'h'd February. The money was ])laced in three
sepaiate pai'cels on a table in the tavern kej)t by Aiken
at St. Catharines, and each ol" the parties above named
took a $")() parcel of the money. One of the witnesses
(Hemiegan) swore he u.sed the money for election pur-
poses.
%
4
.:¥\
i
V I
p i 1]
494
PROVINCIAL ELECTIONS,
[A.I..
Evidence was also given of the payment by the suid
Arthur Aiken of the taxes of nine income voters betwftu
the 10th and 17th February.
The petitioners then applied for leave to amend chari;--
ing the above as corrupt practices by an agent of the
respondent, and the Court, by consent of i.tiities, tlicii
adjourned to meet in Osgoode Hall, Toronto, on the .SOtli
September, on which day the following judgment wa-;
delivered :
Patterson, J. A. — After conference, we hold that tin-
agency of Aiken is not proved, but that the evidence is
sufficient (if not rebutted) to show an illegal act by Aiken
under s. 07, subs. 5 of the Election Law of 18()(S ; and \vt
allow an amendment to charge an offence by Aiken uuiIit
that sulisection, and also to charge an oH'ence in respect
of the payment of the income tax of tlie nine voters.
The Court then adjourned to meet at the Court House
in St. Catharines, on the 4th Deceml)er.
On the reassembling of the Court,
Mr. Miidennan, Q.C., proposed to read to the Court
evidence taken before the Registrar on the scrutiny 'if
votes.
Mr. M. C. Camn-on, Q.C., objected.
The C^OURT ruled that the evidence taken on the scru-
tiny was not admissible on the trial of the petition.
The petitioners the)i called the following witnesses :
ArfliKr Aiken : I went out on the night previous to
the election with James Brownlee ; cannot say where 1
first met him ; cannot say if it was bef(jre T went to
Rykert's office ; had no particular business in meeting
him; if 1 swore I met Brownlee for election purposes I
must have been crazy at the time ; we talked about tlie
election and about making bets; I heard some one say ;it
Rykert's office, " We must all do our best;" don't know
who it was ; I think Rykert was in one of the rooms, l>ut
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 ma<le tw- liets; I jisked
|)(xt('r Potter if he knew anyont.' who would ln-t that
tliry would vote for liykert ; Potter saiil, "Come alonu',"
ami Brownlee and I went with him ; I suppose I hail six
of seven other bets; think one of the bets occunv<l next
iiiorninn;; they were not all Neelon men 1 bet with:
nearly all (jf them I thought would vote foi- Neelon ; I
tliought a little money at election time would do almost
anything, and 1 think so still ; have great faith in money
at election times: thought the election would be close,
and did what I could to change it; spent 8-')') altogether
in liets ; made other bets with supporters of each jiarty j
l»et that Neelon would l)e elected ; bet on majorities all
Dvei' the county; the bet on the morning of the polling
day was with David Grant, a colort'i. votei-; went to
•lacob Moore's place on polling day with Dexter Potter,
and ottered to bet with him ; do not know if Moore had
any money; Moore said he did not want to bet; had
nearly 81 ,000 in my pocket, the balance of what I had
tl
le ni(dit l)efore ; first talked of these bets with Brownl
ei'
on the night previous to the election ; no one suggested
the idea of making these bets; think I met Brownlee at
Rykert's ofliice ; did not consult anyone beside Brownlee
l< :
n
Kf'i
lan
496
PROVINCIAL ELECTIONS.
[a.d.
and Potter ; thought I was getting round the hiw, hut it
seems I was not; lost all of the hets but one ; kopL no
account of them in any book ; only put them down on a,
piece of paper in an envelope ; have had large tinaiicial
dealings with Mr. Rykert ; did not bring a farthiii<i- of
this betting account into the dealings with him ; may
have discussed these bets with him ; he never mentioned
bets to me ; he told me I was very foolish ; have iiiaile
no claim through him for any money expended in hi-ts i
did not know Moore was a supporter of NeeJDn's ; thuuglit
he would accept the 1)et when I made it ; think he said
he would .see Potter again.
Cross-examined : I am not an agent of Mr. Ryk(!rt's ;
was in his office on the night before the electi(jn ; did
not receive any instructions from Rykert ; most of tin,'
bets Avere sporting bets.
Dexter Potter : I supported Mr. Rykert at last election-
do not recollect that there were any committee rooms for
St. James' Ward ; looked over the voters' list when at
Cain's house to see who were voters ; there may have
been a dozen people present ; the names of two scruti-
neers were agreed on ; Brownlee and Aiken asked me
about several voters ; mentioned the names of Wise
Parker, John Jackson, Hollingsworth, and the two
Tyrrells ; cannot remember how many I spoke of ; Collins'
name was mentioned later in the evening ; do not think
Moore's name was mentioned ; might have spoken ab(jut
David Grant ; think 1 was out with Brownlee and Aikon
about two hours ; I bet that the voter would vote for
Neelon ; think Aikens suggested the bets ; my fatlier
stopped at my house, and asked me to go up to Cain's
place ; I went there e.Kpecting to meet others and hear
what was going on ; went there for purposes of the
^'' ion.
< '.M^l for the petitioners contended that, in any event,
AT ^r, " ui an agent of the respondent, either from his
atieii ii. j^ the respondent's committee meetings, or from
l""
V'^
wmmmmm
is7(i.]
MNCOLX (2)
497
Pottrr. who liad boon lieM to ha ivsitondcnt's agent, ro
(jucsting him to canvu.ss with liiin the iiij^dit het'ore the
(lection ; that the respondent's majority was 2.'J ; tliat tlie
l)L'ts pi'oved were witli voteis who liad intended votinj^f
for Neelon, and the ett'ect of tlieir votini; for the I'espond-
ont was to " count two on a division."' Hnder s. .S7 of the
Act of I<s7(j, these acts, in connection with tlie iliei^al
]iiactices already adjudicated upon,liave atiected tlie elec-
tion : irnd-ncy r.ase (81 L. T. N. S., fiO ; s. c, 2 O'M. & H. .Si.)
Counsel for the respond((nt ct)ntend<'d that the aszencv
of Aiken had not been established, and that the peti-
tioners had failed to bi'inn- the case within the operation
of s. .'i7 ; that to do so they nnist show that the corrupt
practices and illei^al acts have had a material eM'ect on the
election.
Blake, V.-C, referring to the majority of 23, by which
the respondent was declared the member for the county,
said toe question was — would the result have been tliat
had not these corrupt practices been adopterl ? He re-
ferred to the advance of SI'jO by Aiken to Cushman and
others, and to its having been admitted that that money
effected the very o}>ject 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 bettin<c which was
pursued on the night previous to the election, and again on
the morning of the election. He goes to bet wath a per.son
more for the purpose of inducing him not to vote the way
it
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498
PUOVINCIAL ELECTIONS.
[A.D.
the other intended. Had these eori'Upt practices not pre-
vailed tliere is no douht the result of the election, instead
of beinj^ in favor of the respondent, would have ht-eii tlie
other way; and under the .'{7th section of the Act, it is
iinpossil)le to say that the .seat can be held l>y n'S[M)n(lent.
He did not express any opinion on the point as to Aiken
l>ein<f an agent of the respondent, although he stroiioh-
believed he was such agent.
P.VTTEHSOX, J. A., agreed with the conclusion arrived at
l)y his learned brother. It was shown that thcic had
been a consiilei'able expenditure of money, and that Aiken
actively, an<l for considei'al)le time before the pollini;- dav,
was endeavoring by the ex[)enditure of money to intlueiice
the election, and that two corrupt practices already ad-
Judicateil upon were committed by agents (^f the respond-
ent, with his money and in concei't with Aiken. It is
impo.ssible to say that the cori'upt acts were of such tritiing
natui'e or extent, that the result cannot be reasonalily
supposed to have been affected by tlwjse acts and illegal
practices. We therefore declare the election void. It is
not neces.sary to hold that Aiken was an agent, but 1 am
strongly of opiiuon that his agency is estalilished.
The Coui't then adjourned to 'I'.hd December, to allow
the scrutiny of votes to proceed. On the rea,s.sembling
of the Court on that day,
}[/: MadciDian moved to have the statutory certificate
.sent to the Speaker, showing that the election of the
respondent had been declared void. He also asked that
the CVnu't declare that sec. ol (^f the Election Act of lS7(i,
which prohibits the trial of an election petition duriiiL;
the ses.sion of the Legislative As.sembly, did not apply to
prevent the scrutiny of votes proceeding in this case.
Mr. Cameron, for the respondent, declined to consent to
the trial proceeding during the session.
The Court declined to grant the interim certificate
asked for, as the statute contemplated only one certificate ;
and held that the proliibition in the Act applied to prevent
the scrutiny proceeding duringtlie session of the legislature.
^ippp^^^i^pmpi
f
is7().|
I-INCOLN (2).
49!)
After the close of the tlion .session of the Legislature,
the sci'utiny of votes proceeded before the Registrar. A
case att'ectiiig the revision of tlu^ voters' lists by the
County Judge of Lincoln was stated by the Registrar and
reserved for the decision of the Judges luider 'Mi Vic , c. .S^
s. .'54. (See ?v Lincoln Elect Ion, lti>rroirni((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
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■ ' -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/h<r iinalilicafions- -/nriuiif Vnti'i-K
— Tindcrtd liaUots — Parol </i r/arctioii.
By the 3rd sou. of 39 Vic, tiap. 10, wliii:!) in siili.stitutfd for tlio (Kith
bee. of the Election IjJIW ef 1S()S, tuvei'ii-keeptrs, or piTsoiis ai'tiiij; iti
tiiat capacity lui' tlie time, who .sell or give liipior at tavcni:< on
polling ilay ami w ithiii the lioiii-s of polling, arc guilty of corrupt j)nic-
tiecs ; hut ])ei\soiiH who treal or are treated at tsuch taverns an; not
jiHected l>y 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<U'nee that since the ])a!'ol admission the voters
liad voted at i'arliamenta'v elections, and luul sworn to the voter's
oath as to heing British suhject.s hy hirth or naturalization :
Held, 1. That the oath a' the polls could not he treated as testimony, not
having l)eea given in any judicial proceeding.
2. That hy swearing at the polls he was a British suhject hy nirth or
naturalization, the voter only stated tiie legal result of certain facts.
3. That there was therefore no i)resuni)ition of naturalization sutlicieiitly
stiong to rehut the presumption of the continuance of the original
utiitux of alienage. (Jacob Sluinck'.t rod'. )
Where a voter, in support of his own vote, swore that he was horn in the
United .States hut that his parents were British suhjccts.
Held, that the whole statement of the voter must he taken, and that it
amounted to this: 'I was horn in the United States of British
parent'." {Jamrn ^fuh•rnn(u^s rot).)
Cei"tain aliens had taken the oaths of allegiance, &c., before a Justice of
th- I'eaco of a town, which oaths were administered to them in a town-
ship, but within the same county :
I.s7().]
MNroi,N (2).
dOI
IJi'hl, tlmt uiiilcr the Alifii Act, .*U Vic, cnp. '2"i, 8t'(!. 12, Cun., tlxi Justice
tit the IV'jtcc, ill iiiliiiiiiiNti'iiii^' tlu; oiitliH, w !ih acting' iiiiiiiHtcrially ami
iKit judicially ; iiinl that llii' oaths were properly adiiiiiiisti'ifii. [John
JiiilllMtll'n I'lilr, )
A voter whose <iualilicati()ii is siiecfssfiilly attacUcii may show a rii^lit to
vote on iiieome ; luit in sueh case he must prove tiiat he has eoiiiplied
witli all the re(|uircini:iit>* oi' the Act which are essential to (|uality him
, to vote on income. (Jaiiiix li. <lnufx voti',)
A Voter was assessed in two ward-- of a town ; he parted with his property
nualilicatioii in one of tlie \said^, hut voti^l in siu'li ward ;
III III, that the vote iiiiyht lie sui)|iorted on the inialilication in the other
ward, whicii, if tlic voter had voteil on it, would have made it neces-
sary for him to vote in anothei' poUinj,' division. ( W'ill'inin T. Wihunn^K
rati. )
A pers(jn assessed for l.ind he dots not own, th>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<l this provision Is suKstitiitod for the fiOtli
section of the KIcctioii [jfiw of IHdM."
The votes whieh ai(^ clainuMl to h(> 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<l ^femoal (piestion, whieh a[)plies to all tlio
ca.ses, is whethei' a violation of the section durin;^' tin-
hotu's appointeil for pollini,' is a corrupt practice.
The Act of I.S7'),'itJ Vic, cap. 2,s. M, made any violation
of the (Kith section of the Election haw of LS(»!S, duiin;,'
the hours of polling, a corruj)! practice. The present .section
is suhstituted foi- .section 0(5.
I ,see no reasonahle gi-ounds for rea<linjL,' the word "sul>-
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.s7<i.
IJN(M)LN (2).
.')();{
.•ind iimkcM ainciiiliiiciits moic (tr less isoliitcil in tlicir
clmiuctiT. Tlicrc is, tln'ictoif, iii» souikI vu\v wliicli miikt's
it tu'CCHHiiiy to cniisti'Ut' any imiticuhir iinu'iitliiiriit liy tlic
li'^'ht of an associatioti wliicli \vf may 'liscovcr lit'if. Iiiit
whic'li may lie al)si'nt wIm'M tin- m-w rhnisr is rca<l witlj
till' I'cst of till' law wliii'li it ami'iulH. l>ut 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 <dvin<!'.
In considering whether the man who treats another is
one who gives within the mt;aning of the section, it will
he useful to refer to the ohl sec. 00. It provided that
every liotel, tavern and shop, in which spirituous or fer-
tuented litjuors or drinks are ordinarily sold, slmll be closed
oOl.
PROVINCIAL ELECTIONS.
[a.d.
(lurinjj; tlic day aj^pointod for polling in the wards or muni-
cipalities in wliicli the polls arc held ; and no spirituous
or t'erniented li([Uors or drinks sliall be sold or given to
any person within the limits of such municipality during
the said ])eiiod, under a penalty of SI 00 in every such
case. I'his section had lieen tlie subject of several jud<T-
nients in contested election cases.
In the South Essr.r ease (11 Can. L. J., 247 ; fvfr, jv 'l-V^),
the Chancellor avoided the election for a corrupt prfictiee
participated in by an agent of the candidate, by receiving
a treat at a tavern duiing the polling hours. That deci-
sion has not, that I am aware of, ever been followeil : and
it was in ettect overruled by the judgment of the Court
of Appeal in the Soiifh Ontario case (a/itr,\). 420). In the
last named case, the Court held that the person prohibited
was tht' tavci'ii-keeper, or the person acting in that ca))a-
eity. It has been suggeste(l by Hagarty, C. J., in his
judgment given in the Court of Appeal in the jVort/i ^Vcnt-
icort/i case (11 Can. L. J.,2!)(): s. c, ante, p. 8.')0), that to
Contini> 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 '
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|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<mld,and doubtless would, have
been .somewhat more clearly expressed. The t»nly other
case in which it can lie .'iiggested that f/ioi/ir/ at a tavern
&c., is the act intended, is the case of persons bringinnr
liquor from elsewhere to the tavern and giving it away.
This is too i-emote a possibility to retpiire more than a
bare mention, and no good i-eason can be suggested why
a giving of that nature should not be an oftence wheicver
committed, as well as when connnitted in a tavern or place
where li(iuoi' is ordinarily .sold."
J think, therefore, that when a man treats anothei' at a
tavern, he does not f/ivc within the meaning of this penal
law ; but that the oti'ender is the inn-keepei- or his suh-
.stitute.
JACOB shenck's vote. (Alien, rascfi.)
The appeal in this and nine other cases were heard
togetlier, as involving the .same question of law. The
respondent liad given evidence before the Registrar of a
parol admi.ssion maile by each voter, in .some cases many
years before the election, of his having been born in a
foreign country. Against this admi.ssion evidence was
given on behalf of the petitioner, that since the date i»f
admi.ssion, the voter had voted at this or a former parlia-
mentary election and had taken the voter's oath, which
contained a declai-ation that he was a subject of Her
Majesty by birth or naturalization. The Registrar con-
sidered that the Oc.th displaced the parol admission, and
held tlie vote good.
1.S70.
LINCOLN (2).
507
Mr. Bethuui'. contended that tlio admission was prima
facie evidence against the voter, and that it was incorrect
to allow tlie oath, as that was showing, in answer to an
admission, that tlie i)arty had at anotlier time asserted
the contrary : Tipperarif ca.Hc (8 O'M. i^ H. ;}4) ; Taylor on
Evidence, s. OiSfi ; Jirif)hllj/ on E/edions, 30') ; J'cop/c v.
/V«H- (27 N. Y. 4.-) ; 30 Barb. oNS) ; He.e v. Ttripiin(/ (2 B. &
Aid. 3SG) ; Lap.'^/r)/ v. Uricrson (i H. L. Cases, 004); lien, v-
Inlnihitanti^ of Harhorne {'A A. & E. r)40) ; ChawhevH' iJic-
tioiun-)/ of J'Jcetions, 23 ; Mo7tff/oriuTi/ v. Grnham (31 U. C.
K. :)7); Doe Hay v. Hnnt (11 I J. C. R. 3G7.)
Mr. Hodyins contended tliat as the achui.ssions as to
t'oieign birth were macU^ long before the status of voter
was ac(juired, it could not ati'ect the after accjuired status.
Admissions to ati'ect a person in an oiHce or liolding a
title or status cannot bind until the office, title or status
has vested. Voting at an election without (lualiticatiun
involves a criminal neixlect of dutv, and renders the voters
liaiile to a penalty, an<l the presumption is in favor of
innocence ; therefore the former parol adini.ssion cannot
now be taken as against the oatli and the voting : People
V. J 'ease (supra); BriyhUy on Elect ion^, AW, 413; Jieyina
ex rel. Carroll v. Beekvith (1 Pr. II. 284); Hex v. Edith (.S
East, 542) ; Fitch v. Weljcr ((> 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
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hn
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')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<le to this .suujgestion would ho
unwarranted by any rule of evidence.
The oath at the polls cannot lie treated as testimony in
this matter, either primary oi- secondary in its characaer.
As a statement made by the voter in his own interest, it
proves nothinij for him.
It derives no greater force fi'om being made under oath;
foi' the reasons, .amongst others, that it could not tie
received as secondary evidence unless it were out of tlio
power of the person a<lducing it to produce primary evi-
dence ; that it was not given in any judicial proceeding,
the functions of the Returning Officer lieing ministerial
only, and his duty compelling him to receive the vote
when the oath was taken ; and that the adverse litigant
had no opportunity to cross-examine the deponent.
{Taylor on Kriihiur, .s. 484, &c.)
The other bi-anch of the argument is to the etiect that
becau.se the voter said he was naturalized, it nmst be
assumed that ho was naturalized until proof that lie was
no' .latnralized has been given. The foundation foi- this
ai'gument fails, l)ecause the man did not .say he was natu-
ralized. He .said he was a .subject by birth, just as mucli
as he .said \w. was a natui-alized subject. He simply swore
to his sfiilns, " a .suliject by birth or naturalization " — a
legal result of certain facts — and we do not know what
facts influenced his opinion, any more than we know
whether he thought he was a sul)ject by birth or a .subject
by naturalization.
But gi'anti ng, for argument'.s .sake that he had un-
equivocally announced that he voted as a naturalized
subject, he would still, in my opinion, be bound to rebut
by evidence the inference of alienage arising tVom hi.s
foreign birth.
No authority has been produced for the proposition
that the fact of the voter assuming to vote as a natural-
is7(i.]
LINCOLN (2).
oon
i/A'(l subject raises a presumption of naturali/ation sulH-
ciently strong to rebut the presumption of the continuance
of his original sf.a/m, except an American case, People v.
Pai'^e (27 N. Y. 4.")): Imt that case, even if satisfactory in
its I'casoning, was <listinguishe<l from those befoi'e us hy
the circumstances that the presumption was there acted
oil in favor of innocence in a proceeding against the
inihvidual whosti conduct was in (piestion.
The well-known rult; which, as applied to pleading,
rt'(iuires a pai'ty to plead the facts which are within his
knowledge, an<l which throws on him the onus of pn)ving
such facts, unites in this case with the presumption that
things contiruie in the same state till the contrary appears:
1-rirr V. Irice (IG M. & W. 241-1').
Tliere is no presumption in this Province that, because
a man who was once an alien owns and is assessed for land,
he has become a subject, because aliens may hold land
ami must pay taxes on it.
The assertion of the attacking pai'ty is, "You ai'e an
alien, whicli I show by proving that you wen; lM)rn abroad."
The reply is, " I admit 1 was l»orn abroad : but I say 1
have bijen naturalized, and you must disprove that." The
njoimler may hi; in words from Bist on Eriilcmi:, p. ^^70 :
" You assert that a cei'tain event took place, not saying
when or where, or under what circumstance ; how am 1
ti) ilispr(jv(i that, and to convince othei's that at no time,
at no place, and under wo circumstances has such a thing
oc'cunvd." In another place the same learned authoi- says
(ji. 'V(\) : " There is a third certain circumstance which
may affect the l)urd(^n of pi'oof; namely, the capacity of
parties to give evidence. ' Tlie law,' says one of our old
hijoks, ' will not force a man to show a thing which by
inienihnent of law lies not within his knowledge.' Ltx
neminem cogii osletidcrc quod ncscirc. pra:sumit.ur. Fi'om the
very nature of the question in dispute, all or nearly all
the evidence that could be adduced respecting it nmst be
in the possession of or easily attainable by one of tht^ con-
tiuding parties, who accordingly coukl at once put an end
i-s
I
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'li
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510
PROVINCIAL ELECTIONS.
[A.l>.
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<I means of presei'viiig und
furnishing to tlivj rJ" the proof of his natiu'alizatioii,
antl lor the recejj'i ■ i' . '"it jjroof whenever the fact had
to be established L^ u\ idence. If any of these votei'.s
claim to have bee?. naturaii/(Ml mider any om^ of our
statutes, they canti'it c(.. nlai.) ■;' being asked to i)roduco
the evidence pr<n'ided by hi\s. li. th -y claim to haxM- Itecn
naturalized by any other process, such, for instance, as a
private Act of the Impei'ial Parliament, the wisdom of the
rule I have (juotcd becomes very manifest.
The statute of 1871, 'U Vic, c. 22, Can., supplies an illus-
tration of what the effect of yielding to the contention in
support of these votes would be. For the relief of persons
who had taken the oaths re([uired for the natui'alization
of aliens by former Acts, but had not procured the certi-
ficates which those Acts authorized, it was enacted that
such persons should l)e entitled to the privileges of natui-al
born British subjects, giving them power to proeurt- a
certificate from the functionary who had administereil tlif
oaths, or to make an affidavit of the fact of having takt-n
the oaths ; and then, after providing for oaths being taken
by aliens who had not theretofore <lone so, it was enacted
that every affidavit taken under that Act should be tiled
with the Clerk of the Peace of the county, who should
file it of ivcord in his court ; and, upon iU bchu/ so filed, the
person making it should be entitled to the benefit of the
Act and tlie privileges of British birth. And the Act
IS7().]
LINCOLN (2).
.')n
furtlier provides for a cortificate from the Clork of the
Pt'iico, which .should he prima facie exidcnca of naturaHza-
tion.
\V(! hold in one case under the present scrutiny, that to
obtain the benefit of this Act it was not sufficient to <;ive
Olid evidence that the oaths had been taken undcM- some
former Act ; but that either the certificate of the func-
tidiiary who adniiniste ed the oaths must be proiluced,
or the oath allowed by that statute nnist have becjn taken
iuid tiled of record.
We may infer from the passinr^ of the Act of ISTI, even
if \vt' did not know it otherwise, that many persons took
the oaths but did not complete the steps necessary to their
admission to the pi-ivilefjes of subjocts — and yet supposed
they had done all that was re(|uire(l. This shows how
little the fact of the claim to vote as a naturalized subject
oduld be relied on as i-aisiuLT a presuiiij)tion of any force ;
and now ajipropriate the rule is which 1 hold to apply
here, and which re(|uires the production of the eviileuce
provided by law for the very purpose of being pj-oduced
oil such an occasion as this.
I am of opinion that the objection to the nine votes
oil the j^rroiuid of alienage must be sustained.
JAMES MULHENNANS VOTE. (A/icii casc.)
Ill this case the voter was called, and proved that he
was born in New York, in the United States, but that
liis parents were British subjects, and that he derived ttie
knowledge of both facts fr.)m his parents. The Registrar
litl<l that the statement of the jiarents was good evidence
of the voter's alienage, but not of their nationality, and
disallowed the vote.
I'ATTEiiSON, J. A.—T think the whole statement of the
voter in his evidence must be read together, not as hear-
say, but as his own admission ; ami it amounts to this : I
was boin in the United States, of British parents. V^ote
hold (food.
i
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512
PROVINCIAL ELECTIONS.
[a. I).
JOHN Johnson's vote. {Alien cases.)
The objections to this vote, ami two others, are set out
in the ju(l,i,nii('iit.
Patterson', J. A. — The votes of .John Jolinson, aii<l of
Lewis Tvrell and Nelson Tyrell, were objected to on thi>
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<l been adniinistiM'cd to thi'in
in one of the townships and not within the limits of tlio
town.
I tliink the Justice had authority to administer tlie
oaths. The statute re(|uires the oaths to be taken bffore
some Justice of the Peace or other person authori/.('(l to
administer oaths under the Alien Act of l.SGS (.'Jl Vic, c (ilj,
Can.) The persons desig-nated by that Act are a Jud<,'e of
any Ct)urt of Recoid in that Province of Canada in which
tlie alien resides; oi- any })erson authorized to aibniuister
oatlis in any of the Courts thereinafter mentioned ; or
any Commissioner to be appointed by the (Jrovernuit'iit
for that pur{)Ose ; (;r any Justice of the Peace of the
county or district within which the alien resides. The
courts named include, in Ontario, the Court of Oenoial
Sessions of the Peace, or the Recorder's Court of tlie
county or city within the jurisdiction of which the alien
resides.
This Act was passed on the 22nd of May, ISGS. On
the 4lh of March of the same year, the Leirislatui-e of
Ontario had passed an Act (81 Vic, c IS) authoriziiej; tha
Lieutenant-Governor to a[)point Justices of the Peace for
every city, town and county in Ontario. The (juestion is
whether a Justice of the Peace appointed for the town of
St. (Jatharines, under tlu; Ontario Act, was a Justice of the
county of Lincoln within the meanin<4 of the Dominion Act
I think he was. He was not char<^ed by the Act of 1871 or
1868, with any judicial duty, or any duty which had any
I.s7().]
LINCOLN (2).
)13
iioccssary reference to the {luthoi-ifcy rxeiTisc'd, uiKU-r the
couiiiiission, within th(; toiiitorial limits to vvliidi it ex-
ti'n(l('<l. He was siiin)lv a ijlm'sou dt'siuiiatcil to (Iisihai<'e
a ccitain iiuMistcrial <hit y. The l)i)iiiinion statute added
a function or powci" to those he alreaily jiossessed, as it
(lid in the case of .Iml^cs of Courts of lleeord and the
■)tlicers of Quarter Sessions and llecorders' Courts. There
is no reason which 1 can perceis'e for readin<; a .Justice af
tilt' county as if it were a Justice/o/' the county, which is
tile expression ordinarily used when teri'itoiial juiisdic-
tidii is sj)oken of — as c. //. in ss. .'}()(), :!()7 of the Municipal
Art of In7'>. 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
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:)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 <iimHt'y
him to vote, jiiid also for an income of S+OO. His name
uppeai'ed oji the voters' list as a voti-r in I'espeet of property,
and he so voted. Kvidcnee was Ljiven to show that he lunl
{)arted with tlu^ assessed propitrty j)rioi' to the ri'vision of
the assessment roll ; and the vote was then sought to ho
snstained as a vote in respect of income. Tin- voter, at the
time of votini,', did not produce t(t the Deputy Returning,'
OtHeer a receijit for taxes, as reiiuired l»y suh-see. 2 of s. (i
of ;}'.> 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 ha<l an income (pialitication, so as to I'eipiiit' a
sp(!ciHc obJtH'tion to that kind of <pialification. \'ote held
had.
Wn,l,lA.M T. (JIBSON's VOTK.
The voter was asst^ssed in St. Paul's ward and St.
r}eoi'e(;'s ward, in the town of St. Catharines, for j)ropei"ty
sullicient to (pialify him to vote in either ward ; but prior
to the revision of the assessment roll, he parted with his
property in St. Paul's ward. At tlie election lie voteil in
St. Paul's ward and not in St. George's ward, in which lie
was then owner of the assessed pro])erty.
IsTii.l
I.INColA (2..
I'AI'TKHSttN. .1. A. Il liils ;ilrt'H<ly Ix'fH lli'M tllJIt fli.'
nst('i»sil>K' (|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
<ii eiipier. " Occupant" is defined as si^'nityind- a person
/"'«" //V/c ofcupyiui;" property otherwise tliau as owner or
tenant, eitliei' in his own riyht or the rielit of his wife.
hut heine; in pu.sse.'<sion of such pioperty. and enjoyini;' the
levenues and })rofits arisin»j therefrom to his own use
1^
■f u
'H:
:>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'eserve<l. The force of these two definitions (4
occupant deai'ly excludes this vot»'i-. He is not the housc-
holdei- ; he does not actually occu|)y the land, and he does
not enjoy the revenues and profits of it, but only that por
tion of them which his tenant pays him as rent, the tenant
eiijoyin!^ the resitlue. Being neither freeholder, tenant
nor oecujjant, he cannot vote.
liEoiUiK sKcouDs vori;.
The facts of this case are set out in the judenient.
PattEHSON. .). A. — in (ireoi'<re Secord's ca.se there is a
eouHict of .'vidence between the votei' an<l the Deputy
Iveturninn' Officer, as to what took ])lace at the poll, when
the voter was reipiired to take the statutory oath. The
voter's account of the* n)attei' is, in .substance, that he was
(piestioned as to whether he still lived in Oi'antham, anil
that h(; said he did not, but that he lived in the electoral
divi,sion, and lie was required to take the oath ; where-
upon the Deputy Returning Officer read the oath tn
him, making it read that he was still a resident of tlic
tuwnshi]) of Granthavt instead of tMs dtdoral division ;
that the voter refused to take this oath, but offered to
swear he was a resident of the electoral division, which
the Deputy Returning Officer would not permit ; and the
\oter therefore left the pollini^ booth without having le-
Ih7«).J
MNCMl.X (2).
17
(civt'd u Itnllot |»H|M'r. 'Vhv |H'titi(»ii»'r.s coiitfiKl that t\u'
\nt( oUliht. to lie couiltt'tl for Nt'ddli, l)CCJiUSf the VuUm'
(iiii^'lit tr have liffi) iill(»\V('<l to tiikr thf (uitli and to
vdtc: nntl Ix'causc lu- now Mwcai's \\v. iiitrndtMl to vote for
Nirloii. Tlir Dcpiity Hcturnini; (HUcfi' contradicts the
\(itti-. and says lie read tlic i-alli just as i,dvcn in tin-
>f 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! <r the pnrpo.se of voting', and declared their inten-
limi of voting for a partii-nlar candidate, lait lia<l heen
nfused the ri^ht iiy the Depnty licturnine; OHicer, onj,,dn
to l»e counted as liavinL^' voted for tliat candidate. The
< Dint of (^)neen s Hencli held, on appeal from thisjnde-
iiient, that the leaiiied Jiid^e was ri!i,dit in reftisin;.,^ to set
asK
le the election to enahle the men to vote, when th
on
cjuididate had a majority without tliem ; hut I do not
uather from the judi,nnent of the ('hief .Instice (.'i7 V. ('.
It., 2'M). tli'it t'>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<j;inenta.s asounil one, that in these election matters
we are liound to keep onrselve.s witliin the h'tt<'r of tlir
Acts and to abstain tVoni any attempt to .stiain the hiw.
I find i)rovision made (ss. I-S and 14 of .'JT Vie., eap. .")) f,,i
tend(UHij.j hallot j)apei's in eertain eases, so that the vot(\s
may he j,aven secretly and kept secret nntil the ri<rlit u>
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<S7i>: 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"ejecte<l, thei-e-
'y n'ivini;' the respondent a majority of 27: that .such marks
liid lieen |)laeed on tlie lialiots eorrujitly or intentionally,
"I hy mistake, hy the Deputy lletuminn ( )tlicers ; and
till' jietitioner prayed that they miuht he counted for him,
and that he he entitled to the seat. The petition also con-
tained t!ie usual chiu-o'es of corrupt practice.^.
.1/^. O'dnrii mill Mr. i'hrixlic for jietitioiier.
Mr. A. F. Mrlniiin foe respondent.
'S\
520
I'JioVlNClAI, Kf,K(T!(>NS.
[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)erin<i' tlie names \>v
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<fed, thou^•h that woidil Itr inuiiateiial
here, in conse(juenco of the small ninnbei- involved, that
ill one case the I3ej)uty Returning; OtKcer did not affix a
number to two names on the list. It appears from his
evitlence that the figures are not his. He lias not sworn
positively by wIkuii they wei'e made. l»ut he has sworn
tliat they must have Iteen made by his poll clerk, an<l 1
think the fair eliect of the whole of his evidence, takm
togethei'. is that in his opinion they were made by his jtoll
clerk. Hi' would not have been at liberty, in accordance
witli the law, t(j permit any one else to sec tlie ntnubers,
and We must act on the principle "nnnn /irn.siiiiit'iid'i- nir
issr Held.
I pass to the oltjection inider sub-set-tions 7. ^ and !> 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 <ui the list is one which sliall
"ilonote thai he has received a hallot ])a))((r.' An\ tick
or innrk of any kind, to denote that, complies with tin-
slat ute, and is all, indeed, that it desij^iKMl. \ow, in tlii'sc
• •ases. it appears tliat the l)(^))Utv lleturnini;- < )Hicers cii-
dorsed upon the hack of the hallot paper not nicich- their
initials, hnt the numbers which appeared upon the \otcrs'
lists, and which, from the voters' list, had l)een piopi'ilv
transferred to the cotniterfoil. lender the Act of IS7+
(II. S. ().. e. 10). that would, I apj)rehend, have lieen a. fatiil
o'ljection to the validity of the vote, hnt the Act of Is7i)
(42 Vic, c. 4) was passed for the vei-y ])nrpose of reniedyiiii;
that ditliculty. 'I'hat statute, while still rendering' the
hallot papei' invalid if niarksare placed upon il other than
the proper maiks. nanu-ly, the otHcial lunnliei- correspond-
in^- (o that upon the conntei'foil, and the initials of the
lleturninn < )tHcer, contains this saviiii;- clause : • l!ut words
or marks coi'i-u])tly or intentionally, or l»y mistake, written
or ma<le. or omitte(| t(» he written or uiade. hy the |)epin\
lu'turinnu
same.
OfH
cei' on a Itallot jta]
)er. shall not
a\ ipid
I am (»f opinion iJiat this case, ujion t,he evide)ici'. coines
cli'arly within the pi()vis(; that, where the mai'k is iiwuli'
hy mistake of the Dejtuty HeturninLT Officer, the lialloi
paper is not avoided. l>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 to ha\i' the effect of destroying' the vote. Mi
Mclntyre has pointed out difKcuIties that might arise, and
ohjections that might he taken to that mode of jiroceihnv
hy a I )e])uty Returning Officer — tliata Deputy Returniiii;
< Uficer who is a partisan might he enahled in this way te
ls7!>.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 lan<ruaif(\ of the
Lt'<i;islature is ))iain. that, under siich circvmistanctes. it did
nut intend that the act of tlie Deputy lletiirnin<j; OlKcer,
liy whatever motive animated, sliould lunc tlie ert'ect of
destroyinj^ the franchi.se.
'I'lu'ii.in furtherance o*' tluit ar-,i;um<'nt, it was contended
oil h(,'half of the petitionei' tliat s(>ction 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<l of tlie prin-
ciples laid d(»\\n hy the Act. Now. we are to endeavoi- to
aiiive at tile |»iinciples lai<l down hy the ljet>;islature
which j^ovei'ii the election n<tw in (piestion hy puttinj^-
idnctlier the Act in the Hcvised Statutes, and the Act
[lassed ill Is7!). The |)riTieiples ar(-. I think, what I hav«^
indicated. Fcdlowed out. they show that the pt^titioner in
iliis case had a majority of the votis. that he was (Mititled
f" lie returned, an<l thai tiie onus is iii*w cast upon tlie
ivspondent to attack the return.
Tile chari,^es of (-((rrupt piactices were then withdrawn
nil hoth .sides; and aftei' evidence had lieen uiven on be-
half of the petitioner atlectini;' the ((Uestion of costs, the
fnllowinu' judgments were ileli\ cred :
.Moss, (,'. ,1. (). -The (juestion of costs is(tne which couhi
not have ai'isen in this precise form jirevious to the Act
<i\' I.S7!>. 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
<lau.se contained in that statute that he is enabled, not-
with.standini,' the mistake of the lletuininu' Officers, to
receive tliat seat to which the votes of the people entitled
iiiiii.
i
'8J
life'
AV
i:
1^
M'i!'
h
t _ J . , .
111.
r)24
PROVINCIA!- EI.KCTIONS.
[A.,.
Now. the first (lucstion incndcavofin^' to ilisposc of tlx'
matter of costs, is to ase<ntain. it" we can, witli wliom the
wroiiL;- ori,i,'inate<l. The l)oi)uty Returniiio- Otlicors liad
undoubtfMlly made a mistake ; but t'oi- that it cannot l.c
contendt^d that the respondent was in any way hal)le. In
the next jjUice, a recount was asl<etl for; and witlioiu
entorino; into details as to the part whicli the respoiidciit
may havt^ taken in setting' tlie Judi^'e in motion, it is (|uitc
suiHcient to observe that, whatever was that |)ait, the vr-
spondent was actini^ within his U'l^'al ris^dits, and that if
he faih'(i in prosi'cutiny; the I'ecouni witli succtiss. tW. law
had aheady macU' the pi'ovision foi' the penalty. Me diil
not procure thi- return whidi the learned .JudL;c in tlic
dischar<.^e of liis duty made. He procured that leturn, at
least, no further than by asking the .lud<j;e to make rlir
recount, and tluis e.xercisint^ his sti'ictly le!.,'al riLjht. Thus
far, therefore, the i-espondent a])peai's to have eoimiiittid
no act of which the ))etitioner is entitled to complain.
In the next place, we have to consider wliat was opm
to the .lunior Judge upon the iec(nnit. It is, to say the
least of it, by no nunins cleai' that the learni^l . Indue coiiM
have re(!eived any of tin* evidence which we have heard
to-day ex])lanatory of the manner in which the l)e|)iity
Ketuniing Oflicers fell into this unfortunate mistake. Ir
is (piite true that the Judge of tlu' (Jounty Court or tin-
.lunioi- .Judge, in proc<'e(ling with the recount, is ti) pro-
ceed in the manner pointed out by the lOoth ami ItXitli
sections, and that the lOotli ,sectit)ii has been amended
by the Act of l.S7!> : 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 avoi<l the
same.
^>tl'-»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/,c<l It}' the huv, have hciM
■corruptly or intentionally, or l»y mistake, written or
itia<le ;*" It is at least a j^iave (jiiestion, an<l the inclinatinii
uf iiiy own opinion is to answer it in the negative as ti'
wlii'ther the learned .ludne (;ould entei'tain, could listen tc
>ueli 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<lJouni
the })roceedinij;s, and eiiuhle Mr. Baker to adduce hefoie
the .Indite sucli e\iilence as tliis Court has heard to-flay
tVoiii the Deputy Kettniiin^' OtHcers. That course wa>
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 concede<l
;hat it was (piite clear, that a petition was ah.solutelv
necessary. There stood the I'etiU'u, declarins^ in due form
'if law that Mr. Morgfwi had Ix^en elected, l>y 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<l il' Mi'. Moi'<fan had chosen to
recede from that position. 1 1 is extremely ditficult tosav
what would have oecui-icil. Mr. Baker would not liavt-
heen de(;lared retiiriuMi l»vanv(lulv recoiaii/ed authority,
and the li(!f,fislaturc would have had to i-ecoi^uizc the
i-eturn of the .ludj^e, oi'yiven some special directions on
the .sul))ect. It is unneccs.sai'y to .say that the Lej^islaturc
has contonii)]at(;d tlu- withdi-awal fioni itscdf of the irivini''
of special directions in such matters, ami desires them all
tn l)e dealt with aecordinji; to the general law.
Then a similar oh,s(!rvation applies to the case of a
withdrawal aftei- the petitioji. Su})posinn' him to he in a
position to do so, he coidd only have doni' so a certain
time after it had been tiled, and by taking certain steps
He does. Itefore serious pi'oceedings are taktni, tile a dis-
claimer a.s i'ar as this point is conc(!rned, thougii it contains
;i proviso that if Mr. Hake)' .still claims the seat his i-iulit
will be resisted.
That does not enter into the <|Uestion of the general
costs, which at present the (.'burt is considei'ing. hi these
eases, as 1 understand the doctrine, the Ck)Urtsha\e always
taken a wide and liberal view of the I'ight of a per.son, in
the interests of the ])ublic, to contest a rtftui'U which was
at all (juestioned. If there was real substantial iHsason for
questioning the return of Mr. Baker, lu'itlier Mr. Morgan
nor any other person, sup])osing Mr. Baker to be returned,
would have been cul[)able — wouhl have been doing any-
thinixbut disehar''-ini>' 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
<if this duty. Unfortiniately, i^noiantly hut honestly,
tliey .so dealt with th(^ hallots as that, except for the Act
(if IS7J), these votes nuist neces.sarily have heen I'ejected.
while neithei' the petitioner nor the respondent is I'espon-
sihle for that. That was an act entirely outside of any-
tliin;i; tliey had to do in the conduct of the election. vSo
that hy them, and hy them alone, has this ilitHcudty arisen.
Then the matter was hrou^iht iiefore the .luiuor .Jud'^e
ef the (,'ounty ; and I (|uiti! ai^ree with what the Chief
.liistice has said, that his duty lie^an and enihHJ with a
recount of the votes; that he crould imt have investigated
the niatter ; and cei'tain hallots were produced hefore liini .
aiirl on countinij; tliose hallots, looking- at sonu- of them.
■.2.S
PHOVINCI.VI, ELECTIONS.
[A.P,
U
111' «.a\v there was a murk there which inii^ht have iiicn-
titied the votev in sucli a way as to avoid the clcetioii
under the Act. He could not obtain tlie ex{)lanat(>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
<ireumstances such as j)resented to us to-day, the < 'ourt
lias charniMl a per.son entirely iinioeent of any im[)i'opii«'iv
ny wrone' conduct, with the costs which have hei-n necessary
ill order to , set ri^ht that which tliest' otlicers have don^
'.iieorreetly. It was neces.sary for the ])etitionei- that these
[)ioce(!dines should lie taken, that he should set aside, not
a \vron<;' thi^ i'es[)ondi'nt had done him, hut "what these
titficers had done, in mistaken jtursuanee of what the\-
thouj^dit to he their duty.
Looking at the fact that CotU'ts have lieeii veiy desirons
of investij;atin<;- and e.vamining everything' which could
teJid to throw di.scredit upon an election, we would lie
(dosini^ the iloor U) a fair investiiiation in many cases, if
in this oni' the respondent were to In- charijfed with the
costs of a proceedini; to set aside, not any wronj,;' done l)y
him, hut by the otKcers, with whoso appointment he hud
uothiuu to do. 1 think, therefore, that t;ach party inu..t,
unfortunately, lieai' his own costs of the liti^vition up to
tin- ])i'esent.
(I."} •Innrinil Lcijis. AsxruK. bSNO, jj. !•)•
[L <^
I'^7f».]
DIFKKKIN.
52»
X'KKKKIN
Bekohk (lniRK JrsTicK Moss.
TouoNTt), ..'Ut/i Orlobir, IS7;i.
.1 VMKsSl-KKiHTHOLM, PclUioncv, V. JoiIN BaHK, lie.yioiid'iif.
/'iiliiniiHir!/ ohjirtioii — Statui of /'ititioiifr, how impi'0''h)'<f.
A- tlif Outiirio A(;t(l{. S. (). , e. II) iiuikeH no pniviHioii similiii- to that iii
tlif Doiniiiion Contiovertud Klections Act, 1874 {'M Vic, e. 10, Can.),
liiiiitinj^ tlie tinu; witliin wliich pri'liininary ol)jecti()ns to an election
|it;tition hIiouIiI he taken, tlie special cii'cunwtance.s of each caao must
i|i:tcrniine wiiether tile preliminary objections have Inu-n taken with
siitiicicnit ])roiiiptitiule.
All objection to the uttitui^of a petitioner cannot be taken l>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»een<i;uilty
of coi'rupt practices during the election. A.fter the argu-
inent of coun.sel the learned ( -hief .lustice gave judgment
as set out in the head note.
The case is reported in 4 App. K. 420.
?■ m
ff-.M
I'lJoVINciAl, KI.K< TloNs.
.V.l»
DnKKKKIN.
I' n
uu\
mm.
HkKoUK CiIIKK .IrSTK'K. Moss AM) Ml{. .)lST|i:|.; AltMiill;
()H.\NiJKVII,l,r., !)lll J)rriiii/»i: IS?!'.
.IaMKS Sl.KKiHTHOLM. PdUioiU'V. V. .luHN j'.Al:;;, A', .fiinnl,,)!.
AihutMHion of Ciiunni'l, ('orrti/>t /ji'dcliriH nml ni/nr illiijul ih'Im,
II. .V. i).
liK ■■<. /•'.''.
Thf ittHpoiiilfiit wjisi'l<;i'l('<l 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 tin? ( 'oiirt on mucIi adtnisHioii dccliiroil thr
• lection void.
Tho petition contjiiiKMl tlic usual cluifocs of conupi
|»nu'ti('(!s. TIic icspourUiut lia<l Ixm'h tloclanMl clt'citc"! li\
a niaioiitv of 2(il.
Mr. Mcihrlhii, (^.( ".,'///'/ .Mr. P. M. Barker, for petitiouci
.)//■. //iii/.f/iii.s, <^.('., ''//'/ .!//■. />. L. Sroll. for respondent.
After the rtifulino- of the petition, counsel for the peti-
tionei' stiite<l that he did not propose U) otibi" (!vid(;n(;e ot'
cerrupt pi'aeti('((S by the icspondont. But he was in
posHCHsion of (!vidt(nee whicli would show that acts hfi'i
heen coininittiid Ity those for wlioni the lespondent wu-
rcsponsihle, as his atfents, in the lei^al sionitication of tin
toi'ni, botli in (;haracter and ininiher sullicient to avoid tiir
election under the Ontario Act (R. S. ()., e. 10, s. 1.')!)).
(\mnsoI for the rcsi)ondent then statcid tliat from tin
instructions oivon to liini, he liad to say that there wa-.
<^videnc(^ ttapahle of htiini;- prothiced which would ha\''
tho (itf'ect of avoidin<4' the; election.
The section of the Election Act (U. S. ()., c. 10, s. hV.i
is as follows: "To prevent tlie ex[)ense and trouble nt
new (jlections whe.n unnecessarv and useh^ss, in case of ;i
corrupt act or acts bciinif cinnniitted l»y an a;L,fent without
the knowhnljfe and consent of tiu; candidate, if the coriupt
act or acts was or were of such trililng nature, or was m
were of such trifling;- t'xt(!nt, that the result cannot havr
been affected, oi' be rc^asonably supposed to have been
. »fi!
I.s7!).l
soirii \vi;\T\V(inTir.
;-:n
atlf'ctud l»y f^ncU net <»r acts, citlicr almir or in connccition
witli dtlifi' illrnul |>rnctic'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(;<l hy
law. On a motion to striUv out .such particulars :
//'/'/, tiiat under the " N'oters' I^ists l-'inality Act" (41 Vic, c. 21, s. 'M.
the legality of the votes s(j ohjected to could nut he inciuired into, and
tliiit the particulars should he struck out.
//'/'/, further, that the i^U'ect of the said Act wa.s to render the \'oter.s'
Lists final ami conclusive of tiu' ri^ht of all persons named therein to
vote, e.vcept M here tlieie had lieen a sulisci|Uent chanj^e of position or
status, hy the voter having jiartcd with the interest which he had
(or hy the Assessment KoU appi'ared to hav(') in the pi'(»perty, and
hecomiiiL.' also a non-resident of the electoral division.
A ^ i 1 V, 1 ina«Ivt;rtently torn his hallot, and whose ballot was w-
led on the counting of votes, was allowed his vote, the evidence
'ving that no trick was intended for the purpose of showing how
lie intended t vote.
riif Klection .\. . in its enacting [lart reipures hallots to he marked with
a 1" -s on any plac(! within the division which contains the name of
tl: L-andidatc. Ballots marked with a straight line M'ithiu the division,
ui vith a, cross on tlie hack, were rejected.
"bsiivations on the dili'erem '>etween the English and Ontario statutes
in this respect.
35
i;
i
%'
5:V2
PROVINCIAL ELECTIONS.
[v.n,
The ])otitioii contain(.'<l tlic nsiifil charges of coituiii
practices, and claimed tin/ seat t'oi- the (Ic-'cjitcd candiilatc
Nicliolas Awrey. The vott^ at th(! election, aftfr ;i w-
couiit by the County Judiie, was for respoinlent, 1,2.'!1 ;
fill' Mr. Awrey, 1,2-S() ; iiiajority for respondent, 1.
Mr. Jl. n. (Mlrr, ()!'., <nid Mr. 'lWfr.,I, f.,i- petitioiicis.
Mr. MrlUirlliij, Q.C.. a ml Mr. nnhnisnu. i^C. f,,r ,■,,-
s]M)iident,
Duriui;' the ])r()cecdinus application was ina<lt! to stiikr
out tlic following- classes of ohjected votes in tlie parti-
culars liled liy tlu! j-espouilcnt : Persons ohjected tu a--
(1) alic^ns ; (2) minoi's ; {'\) liavino- no interest as o\viicr>.
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
\<i\t'> 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 ;in<l discntitloi] to
vote." The partieuiur portion oi' tliat Act to wliicli refer-
ence is niJiile is containeil in the 1st ,snh(livisi(jn of the
Till section. Tliis does not enumerate any j^rounds n)ion
which a person shall he incompetent or disentitlcil, Km
mei'cly states the necessaiy (|ualihcation, which foi- oiij-
present purpose is tliat lie shall he, at thi' time of the
election, either an actual I/d/U' JiiJr ownei', tenant or occu-
pant of real ])ro[)ei'ty of certain value, for which he hus
been entered upon the roll, or in case he has ceaseil to
be such owner, tenant or occupant, a resident of the
electoral disti'ict. The judicial construction placed upon
tliis enactment pei'iuitted great latitude of in()uiry up(jn
the right to vote upon a scrutiny being held. There can
be no ([uestion it was to prevent tliis extravagant range
of inve.stigation, which reacheil a culminating point in
one menioral)le instance, the Act of IS7S was passed.
Looking at the whole enactment, tlie intention of the
Legislature seems to be roa.sonably clear. But we must
confess that the ])articular sub-><ection now in (juestion
'loes not seem to be happily framed. Tndee(h it is scarcely
too nmch to say that it invites the discussion v.hich it has
recei\'e<l. It does not a]")pear to u.>s 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 hein<j; I'ctained. As this was the view taken l>v
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, <j|.C, Mr. liiriji II n ml Mr. W/iil m'f/
f >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 ha<l liccn (ruiltv
of wilful and corrupt hrihi-'ry and coirnpt practices, and
tliat lie iiiu.st thei'ef(jre \h- dis(|naliliL'il.
Tul' Cuuirr ih("reu]jon ,i,n'anted the ordi'i'.*
*The form of conviction settled liv the .liulgcs in the Lhn'olii '-a*- {uufr
p. 481 1) is its follows :
lit: it rLMnc'nii)ercd, tlijit from evidence given lictVtre us, tlio llonoralile
Cliristoplier Salmon Patterson, and tlie ll<inoral)le Samuel iiunie Pilake.
two of tlie J u<lge« appointed for tlie trial (n ciection jietitions at thcitv
of St. Catharines, in the county of Lincoln, on th(.' twrlith day of Seii-
temher, ni the- year of our Lor<ione tliouoand eii.'lit hundred aniisevent\-
six, at the trial of an election petition, wiiercin Alexander HutchiiiSdii
and Xatiian Henry Pawling were petitioners, and .lohn Charlies liykerr
was re.s))ondent, and wlun'ohy tlie said iietitiouers alleged tliat the saul
I'cspondenl was not iluly elected as a meniiier of IIk; Legislative Ass(_'nd)iv
of tiie Province of (Ontario at tlio idection fur the eloctoial division of the
county of Lincoln. Iiolden on the eighttentli and iwenty-lifth days et
Fel'rnary, in the said year of our F^ord one thousand eight; hundred aiiil
seventy-six, John .Innkin. a ri'rson not a pai'ty to the said petition,
appeared to have committed a corrupt prai'tice '.igainst the for-.: ->f 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<leration, or discharge or release nf rent then due by one Artliur
Belcher ov one Anne Belclu^r, to tht^ sai<l .\niie P)elcher (wife of the said
Artliur Belcher), <ir on i)ehalf of the said .'vrthur ik'Icli.'i-, in or<le'r t'l
induce the said Anne Belcher to protnire tlie vote of the f>?'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<l and seventy-six, at noon, hefore the
Court for the trial of all illegal acts committed duiing the said election,
to show cause why he mIkhiIiI not lie adjudg(;d guilty of bribery pursuant
to the statutes in that behalf, in that lie the said Jolin .lunkin had coni
mitted the said corrupt practices ; and tiie said .John .lunkin was duly
summoned so to appear and to show cause, as has been made to appear tn
us now sitting as such last mentioned C(Uii t in ))ursiiaiu;e of the IClection
Act of i.ST'i, at the time and place aforesaid, by tlie allidavit in writing ui
William Davis Swayze, and has neglected or refused to attend in pursu-
ance of such sumnKJiis ; and thereupon proof iKwiiig becui duly made hefoi''
us lij' the said atlidavii, that tiie said .John Jnnkin was dul^' summono'l
by the personal service upon him by the said Swayze of the suminon.s
issued l)y us m that behalf, we pronoio'ce judgment in the absence of the
s.iid .)(din .lunkin. And it appearing' to us, the saiil.Iudges sitting as such
last mentioned Court, from the said evidence, that thi^ said .lohn .lunkin
is guilty of a oorrujit practice, namely, bribery by otlering and promising
to procure valuable considei'atioii to or for the said Anne I5elclier, that i.s
to s;iy, tiie discharge or release of rent due by her iiusband the said Arthui-
Fielclier, who was a voter at the said election, in order to induce the .said
iMIi
1S7!».1
WEST IIASTlNfIS (2).
.)•>
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 iir<i<ij.
Till' niJijority of the rcspdiulcnt wn.s H.'?7 : Imt it apprarcd in cviili:iico that
two aL'entsof the respondent liad 1)ril)i:(l liotwccn forty and fifty votrr.s :
tliatin close ]>roxiniity 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 <jr S+.') in my pocket that mornint;'. I received
So tVnm one party that <hiy. I spent pai't ot" tlie money
that day; I can't say liow 'inieli. 1 |)aidpeo]>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<led m(> 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>])<i'na, the C-onrt
adjoiu'iied to the Kith Decendier, 1S7!*, when the followin:^
adijitional evidence was g'iven :
Jdhn Juhiisoii : I canva.s.sed for Mr. Robertson on the
day of the election. I was most of the time in tlie Murray
ward, wliere there ai'e two or thi'ee divisions. I went
witli some voters I had solicited : IVter Mi^n-'an ami John
Daly. I drove Morj^^an to tlie poll in Ontario Street. I
spent .some money that <lay — ahout 8200 ; T can't say how
iiinch on the election. More than .^100; I couldnt say
iiioie than 8150 ; I can't say how mueli. I also treated.
1 couldnt say whethei" there were fifty ; I sujipose tliere
would he }iretty near fifty. I onl}^ treated one man whom
I knew to he a voter — P. McXulty: the others were vouni;
men whom 1 met on the street. I diiln't give more than
87 to any one voter. 1 gave from tliat down to 81 ; 8*)>
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 <j;nr
anotlior 8i')(), I think, on tlu' Monilay hcFoif, lint f uni nut
sni'f. I was pnttin*;' n)> 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<l during tlie day ; Mr. llohertson wa.s there
and spoke to many people ; did not hear him solicit any
M
^ n
¥
1 n-ii
I'U
Ul
i it
.4+
|-Ui»VIN('IAI. i;i.i:(TI<»NH.
A. II.
])('r.s(»n'.s V()t«> ; 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<l not attach mnch
importance during,' the trial to the nieetin;^' or meetings held
at Saistieid's, for the reason that, until Mf. Kerr nd'erred to
tlie inti-rpretation clause, I considi'red a contravention of
the l.')|st section in the ji^^-ht rather of a forl«idden than a
coniipt practice, Knt a consideration of his aryunieni has
atislieil iiie I was mistaken
M
oi'i'oN cr.
I
lOdKcij llholl
w
liat took place on those occasions as oi' such a liitlinu'
nature as not to ha\e att'ecteil the result of tl lection :
liiit I was nnicli impressed with his contenlioii llial when
we are called upon to decide on the eil'ect which a numlier
of ille^'ai acts mar ha\e had on that result, we cai- ex-
elude none from oiii' eonsid''iation. It is plain the meet-
Iul:,' in (lucstion was held "for the piu'pose of jironKitiiiL;'
I he election p/exious to such election,' and idso tliJlt pel'-
-oUS who We''e a^'euts of tlli' resp. indent Were lileseiitand
I'urnished d:ink and entertainment to the pei'sons then
iidvin.u' part in the proceedings ; it is tln-refore clear there
was an infrinu'einent of the law. There were also two
cases of personation proved, Init it was not shown that
this violation of the law was done l»y persotis for whose
actions the ri'spondeiit is respoiisiMe : still they cannot
lie (i\-ei'|ooke(l when We a re cal I' ■( | U]io|| to deciile whether
the corru|)t act or acts was or wi'i<' ot such tritlin^'
ture, or of sucli trillinu' e.xtent, that tlie result caiu\ot
na
lave lieen atiecte<l, or l»e I'casonaoly siipposeij to jiave
atVeetech hy sucli act or acts, either alone or in coii-
lieen
lection with otlicr illee-a! practice's at tlie tdection.'
We tind, then, that t
lel'e Were ' "
f wceii fort\- and lift \
e.ises of hi'ihei'v, a lai'i^e aiiioiinr of indi-^riiminate treating;'
rjose to one of the poliiii'j,' places -one at a lar^'e nieetiiiL;-
the e\eniiiLi' hefore the polling' day -whieh tivatiiiL;' wa> 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 candi<late has a lari;v
uiajoi'ity it is us(!iess to complain of any infi'iniiemi;iit of
the law unless coi'i'upt practices can be Ijrought hoiiK; to
the candidate personally.
We find that the election of Alexander liobertsnii was
void for corru])t practices by his agents ; and we dcehuc
the election vend, and order the eosts of this pi'tifion t()
be paid by him.
(IS Joi' riiii/ /.I'ljts. AHsrm., ISSO, ) 7.)
•lil
^tm
, 1 .
\ 1879.
I'csult ut'
ive ilone
in- to thl^
e thiit in
; ii lar;^e
cmi'iit of
hoiiii' to
•tsou was
L^tition to
.0. ) 7.)
hn.MIMiiS /.:/./:CT/<)XS, IS7.
CO UN WALL.
I)I:I'01'J: C'llAXiKI.I.nl! Si'I{.\f!(^;E.
CniiNUAl.l., -In/ fo ,7// S' /ilriiilitr, /S^.'f.
l)Ai{!!V lir;i'(iiN, Pi /!ln>iir,\\. 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 <loes not jjrove aijcuicy, liut it tends to prove it.
A niimher of arts, no one of \\!iich niij.'lit in itself lie conclusive proof
ot agency, may, when taken togetiier, amount to proof of such agency.
I'ersons who canvassed and went to meetings w ith tlii' re8[ionilent. ami
attended meetings lo jiromote tiie election, at which meetings the re-
spondent attendeil ; and pcisons who camassed with and introdii'id
voters to the respon<lent, called meeting's and appointed canvasseis, and
did oilier acts to fui'ther tlic ehctioii, and examined the results of the
canvas*', were iield to In- agents of the res)iondeiit ; and corinpt jirac-
tices committed hy them, ami iiy suli-agents appointed hy them, avoided
the election.
If a nieetinu of (•lectors asseinhles and has tiio sanction of the candidate,
.sucii candidate is responsihle lor its act.s and tiie acts of the agents
appointed hy it.
lint where the meeting is large, then all present cannot he consider -d as
agents; only those to whom certain iliities, either as a committee or
as individual canvassers, are assigned.
Brihery is not coiiHiicd to the a''tual giviiiLT of money. Where a grosi^ly
inadei|iiate price has been [i.iid ftjr work or for an article, it is clearly
briljery.
A lirge sum of money, averaging .•-!:? per head, had been spent by two of
tlie agents of the respondent, and money had been given by thf-m to
l)arties without any instructions -.
//'/'/, that where such money liai been ajipliecl improperly, it inii t be
consiibred that it was intended to be so applied.
Various acts of bribery and of colorable charity hiving been proved
against the agents and snbagents of the respondent, the election was
set a>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<r the election is referred to in the iud('meiit.
The elfction took place on tlie 22nd and 2!)th -lanujuv,
1S74.
Ml . Jii'thn .'I' (I inl Mr. A. I . Mfl iiff/ri' for petitioner.
Mr. R. A. Harrison, Q.C., Mr. 1). H. Mdclcvnan (iml
Mr. H. H. Mnc.doivdd, for respondent.
Sl'RAcKiH, C — The in((uiiy divided itself into two
branches. 1st. That relatin^i,' to the (piestion of annicy.
2iid. That relatiiiL,^ to tlie commission of corrnpt jii'actices.
With I'eference to tlie (piestion of aj,'ency, the coiitm-
tion of the counsel for the respondent, tliat what is
known as the common law of Parliament does not apply
to elections to tlie House of Commons, cannot, in my
opinion, he suj)ported. It would he more accurate to
refer to this law as the couuuon law of England iclatiiuf
to I'ai'liamentary elections ; and in tiie ahsenec of any
expressed intention to tlie contrary, it must lie hcnl to
come within the provincial enactments iiitroducinn" hi'Ikt-
ally the common law of Engiaiul. Ji''!J- v. (jdmhli' d-
BoalUm (9 U. C Q. B. .jiG) is an authority in support of
this view.
The law of a<rencv as re'^ards Parliamentary election-^
is not the ordinary law of agency, but a special law. The
usual rule is, that where an agent acts contrary to his
instructions, the principal is not bound ; but in parlia-
mentary agency it is ditierent, for there the princi[»al is
liable for all acts of the agent whatsoever, oven though
they be done contrary to his express instructions. Jinrd-
ley case (1 0"S\. & H. 10).
As to the evidence of agency, mere canva.ssing oi itself
does not prove agency, but it tends to prove it. An act_
however trifling in itself, may be evidence of agency;
and a number of acts, no one of which might in itself I'e
conclusive evidence, may together amount to proof. It
1874.]
CORNWALL,
549
is liai'dly necessaiy to obsei-vi^ tliat an agent need not he
ii paid agent.
Ill this ease Mr. 1). P>. 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<lent drove
out to the meeting's with Mr. I). !>. 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<l not heen present himself, tlic
presence of his chief agents, Macleiniau ami Henry Saml-
mpfwwr
■ f
1,S74.] COKNWAI.I.. ')r)l
fiiM Miiciloiiiilil, wiiuM li;i\f irii(lrrc(l liiiii linl'lc tor the
action of tin- nicctin^', Wr iniist not look at tlu' I'ot'im
hut at the .sul».stance of what look plat-c. Ami 1 tliink
tliat the canvassers a])poiiit('il at tlic St. Andrew - nii'rt-
iiiiis nnist l)t! coiisidi I'cil as aij,i'nts for wlumi the I'cspond-
(•nt is rusponsilih.'. The Wcsf m > 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'<l, hut this Avas
uiuiec-essary. 'J'he )-espondent acinuesceil in the acts done.
'J'(t II n/on riisr (J ( )'.M. jV II. Is.")-!!;: ('iirrii/n/ cusc [ilinL
107,.
As to t]i(.' second hrancli of tlie case, nani<dy, that
iflatiiiL;' to the comniission o!' eori'U])t pi'actices, these
I'Diisist principally of acts of hriliery. lirihery is not
contiiied to the actual ijiri inj of money. IJeinn' an un-
law I'nl act, it is to lie expected that attemjits will he
made to conceal it from the lie'ht of day. The eotirts,
llici'elore, have alway> 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<l Uri' froiri
'■"rriiption, or whether there has iieen a g-eneial laxity of
I'liiiciple and evident disree-ard of tic law. When the
t'arnpfc acts are isolated much e-ivatei' strictness of proof
will ho re(juired.
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552
DOMINION K LECTIONS.
A.D.
One thinfj that strikes inc in this case is the larjijc sum
expcn(l(Ml by the two chief agents of tlie respon(l(,'iit. a
sum av(ii'a,i,nn(T about $'l a liead foi' the votes |)olI('(l t'oi'
the respondent.
Large ainoiuits were also paitl witliout any express
directions as to tlieir application, amounts wliich would
not be iXHiuii-ed for any legitimate use. In tli^ ease of
Donald Miles McMillan, for example, the words used
upon thti money being handed to him were, " Here, you
may reip lire it." If this money were a))plie(l impi'opeiiy,
it must be considered that it was intended so to be applicil,
Again, when H. Sandtield Macdonald, liaving '• hcanl
that tile north-west corner was corrupt." gave 1^140 oi'
$ir)0 to (Jeorge McDonahl, of Moulinette, to expi'iid tlieiv,
witliout any directions as to tlie mode of expendituiv, tlu'
only infe;"nee must be that it was to be expciidrd in
order to coiTUpt. This inference is supported by tin-
statement of George McDonald, who, on being askc(l wliv
he accepted the money, replieil that he was appreheiisi\c
"that the other side were going to bribe," which iiii]ilic<
that he considei'cd his side .should do so as well.
There were iiiivny similur cases in whicli consiileijilili-
.sums of money were paid without directions as to tli''
application, but it is unnecessary to dwell upon tlii'<«'
further than for the purpose of .showing the gciinal
spirit in which the contest v^as carried on on behalf of
the respondent, in the case of (iilbert llunions, luiln'iy
with the knowledge and co)isent of Henry Sandtield
Macdonald, one of the chief agents of the respondent, i^
proved.
Henrv Sandtielil MacdonnM. when he handed the inniii"
to George McDonahl, nanieil Runions as a })ersoii to
wlioiii money should be gi\ en ; and the money was |iaiil
to llunions l»y (J. McDonald, as Kunions admits. 'riii>
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. An<l in exercise of tins discretion, Geori,re Mc-
Donald l)ribed Cannon and the two Worleys.
The payments by Donald Miles McMillan to thi' Clines
and to Mnriay are othei- instances of hrihcy. Jn the
case of ohe Clines, McMillan paid money to them, or, as
he afterwards savs, to on(i of them, nominally for the
purchase of oats, hut at the time of the alleged jnu'diase
no (|uantity of oats was name<l, no time for delivery was
specified, no recei])t for the nu^ney was taken, and no oats
have, as a mattei' of fact, been deli\-ered ; tlie alleeed
purcliase was nn<loubtedly a mere colorubk' ])roceeding.
The fact that the Clines and Mui'ray declared tlieii' in-
tention to vote for the respondent does not alfect the
case.
Again, the payment of i?10 to Alguire by Henry Sand-
tield Mac(h)nald falls within the I'lile of inoi'dinate and
excessive ])ayment. Whei'e S4 or 85 would have been
sutHcient, the excess nmst be considered as given for some
other pui'pose, which ])urpose was "corrupt."
The payment of .S')() to tlie llev. Mr. Smith, J think,
falls within the rule as to " coloi'able charity," oi' " coloi'-
able liberality," referrv'd to in tlie cases, and was therefore
giveii with a coirujit, motive.
With I'eference to the loans of small sums to \arious
])eis()ns, we must of cotirse take into consideration that
the tirm of Maclennan cV Macdonald was in tlie habit of
lemlinii' small sums. But the leiiilim:' of \arious sums,
amounting to S:ilO, at (J jiei ecnl., is e<'itainly susjiicious,
since it a<lmitted by Mi-. .Macdonald that the current
vAlv was S per cent., and no reason is gi\eii why (i per
cent, only was aske(l. 1 think i\\r reaso)iali]e inference
must be that the loans were ma<le with a view to the
election. Tt is not necessary, howevei', to lay much stress
n])on tliese transactions.
' ..' '
iiai
.■>i^
.■).')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<t tlif liirinLi" *'^' l^'"' special train, I think there was
nil |iers(inal iiii|iii)])ricty in the case. A mere hirinn' tit' a
riiiueyunce tn cany Nnters i-, nut an act wrun'^' in itself.
uimI wouM not iie so at all hut lor the e\|iress |iro\isions
(if the law. Ami I am incliiieil lo think that tlie hiriiii;
in this instance »loes not i'all within the ineaninL: of the
iV,an<l that it i.> 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<i'es.
and they have not heeii ]iut in wantonly, in oi'der to
Wound the feelings of the respondent ; if they had lieen,
that niiglit have altered the ease. These charges also ai'O
Usual, anil are excusaltle on the ground that the opposite
party is generally igiKjrant of w hat is done hy the I'espond-
ciit : and in order that evidence ati'eeting the candidat(>
personally niay he givi'ii, these charges must he made in
the petition,
(<S Ctmunoiis .loll ri'dl^ INT"), p. •"))•
illl^-
m-^
cr.c
DOMINION ELECTIONS.
SOUTH RKNKRKW.
[a.d.
Hkkohk CiiANcKM.ou Si"i(A(;(;i;.
Rknkkkw, !)th Stiiti'iiilifr, /.s'/V/.
VVlI.IJAM BANNKUMAN, Pfllfloiin; V. .lolIN I.OUN
McDoiUiALI,, RinpoiKlriif.
C'ontx — PrcVnninarji iiii/iii)'!/ — Eu-rcustrr <.rfii^ii(Hfnrf.
The rcspoiifli'iit snuglit to t'slal)lisli, on an in(|niry under a preliniinnry
objection, tliat the petitioner (the oppoHinj; randidate) liad lieen jiuiltj-
of l>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'<il:'ni
(L. H.,!» ('. P. (I2()),lield that even if hriheiy were ])roviMl
against a candi<Uite-])etitioner, lie was not di.s(jualitied as
a petitioner.
The trial was then ]>i'ocee<le(l with at the town of lleii-
frew.
Mr. MiCd I'tlnj, Q.C., for petitioner.
Mr. /^(7/m/ 7?^' for respondent.
1.S74.
sol 'III KKNKUKW.
:):,7
Al'tcr the case Imd Ikm-ii partially luaiil, tlic i('sj)on<l-
ciit's (!(>uiisi'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-
spon<lent. If 1 thought it did, I should feel it uiy duty
^o to adjudicate, wiiether the jietitioner was willinjf to
withdi'aw liis char_ife on that head or not. Ihit the (pies-
tion of costs still remains to I
te S(
■tt
e(l
Mr. liillniiic contended that jis fai' as the preliminary
olijectioii is concerned, there was eround for the ini|uii'y,
as it was i)rove
H)
l>rock\ 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
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IM IM
132
1^
1^
1.8
1.25 1.4
1.6
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Hiotographic
Sciences
Corporation
33 WEST MAIN STREET
WEBSTER, NY. 14580
(716) 872-4503
if.
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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 a<liiiitte(| was liHil ill law. ainl
whieji haij not lieeii prnxcd in fact, sliuiilij l>r 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
<loes not (lr!);,r the Jtetitioner, eVi'll when he is the cail-
'lidate, from prosecuting;' the petition so I'ai' as unscatinij
the sittinif nieinlier, Imt only jireventecl the unsuccessful
canil'flate from hein^' seated, ami here the scat was not
cli/ .. 1.
Si"i;\f;f;K, C. —It is conceded l»y the learni'd couu'^el for
the r )' Mijent, that as to the iLienei'al costs there i>
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<le<l now that this j)re-
liiilinary ohjection was untenaMe as a matter of law. hut
it is uriivd that this was an unsettled point when tin-
exception was taken and the int|uiiT had, and that the
evidence showed that there was prohaMe ground foi- the
ohjection.
The evidence was taken liefore me, and havinjjf the
evidence heie, and havinjjj attain reail it over, it apj)eais
from it certainly that tlie expen<litui'e of moncA" hy the
petitioner and his agi'uts was \ery consiileiahle — .so con-
siderahle as to leaxe room for the susj)ieif)n that it was
Jiot all exjH'uded f(»r the legitimate [)ur])oses of the elec-
tion. But what was charm-d went heyond this — it Avas
a charge ol' personal wrong on the part of the petitioner,
whioh, however, was not established.
There have been eases where the usual rules have been
de})arted from, but these cases, however, are few, and the
ill
IN7+.]
SOITH ItKNi ..KW.
:)!!
la'Tienil nili; is now i-arclv <It'i)ni'tiMl from, uulfss imdiT
strv ('XC«'|)tioiial circuiiistanccs. In this case, at any ratf.
till v<lo not appear to iipply,an<l ncvci- have Ix't-n applied
to such a case as this.
These costs have heeii in('mTe<[ in an iMi|uirv, not upon
the merits of the j)etition, hut at the instance of the re-
spoivl' Mt t'^ intoi"f'ej)t an investigation int<i the merits of
the jietition on the ^frnund of <lemeiit in the iiuliviiltial
liy whom the petition was presented, and it is now con-
ceded that the ])etitiom-r rinhtlv sueeeed>.
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<l\tiii-i- — liriln ri/ C'irruiii!<l<inlinl '■n<lfiic>' — /\'i':i/,oiiili)it'>(ilU.
rldiiiiii- of' rnrni/jt prnrtinx Aiji'in'ij A/i/iud — .'C I'/c, r. 10, n. .{.;
— J)i«/iinHlic<i>iiiii II f' ri'</ioiiili lit.
The eviik'iice showed ili.it extensive hril)('ry was pra(!tiHe(l by the agents
of tlie ruspondeiit ami by a hirgo number of persdiiH in bis intrrr^t,
but no acts of personal liribery were proved a^;a-""* iiini, anil Ik^ di'iiinl
all knowledfio of such acts. It was in eviiieni u .nat he had «ariii'(l
Ins friends, dui'ini; thei-^jinvass, not to spend money illegally.
The.didfje (ihilii/nii/i) UM that no corrupt practice iiad been cominitteit
with the respondents knowledge or consent, and avoided the election"
for corrupt practices by the respondent's agents.
On appeal to the Court of rommoii Pleas, it was
//ilil, I. that the circumstantial evidence in this case was Butiiiient to
show that corrupt practices had been committed by the respondent's
agents with his knowledge and consent.
'I. That wilful intentional ignorance is the same as actual kn<)wled;,'e.
;{. That the assent of a candidate to the corrupt acts of his agents may !«•
assumed from his non-interference or iioii objection when he li:is tiie
opportunity. And such candidate's knowledge of and tii'sent to the
corrupt acts of his agents, may be established without connecting him
with any particular act of bribery. (24 V. 1*. 4'M.)
The pi'titioii foiifcaiiu'd tlic usual chari^ivs of c()nu|it
praetiet's.
Mr. R(i})'nisiiii, Q.C., a ml }fi: Sfnrf, for petitioner.
Mr. R. A. Ifiirrisim, Q.C., nml Mr. A. F. Cinn/ilii'll, for
re.sponilent.
The evi<lonce disclosed that about J?J),000 were expendcil
by tlio respondent and his ajjents at the election. The
total vote was 2,477, of which tlie I'espondeiit receivi'd
l,2()f), and Mr. (krlin<,' 1,20S. TIk; facts of the case aiv
set out in tlie jud^^nient of Haifarty, C. J., re]>orted in 10
Caniuht Liiw JotiriKil {l>^7-i'), p. 2<sl ; and in f) ComDions
Juiirmd, p. 24.
At the close of the evidence, and after the arn^unient of
conn.sel,
KS74.]
LONDON.
561
The Chief JrsncE deelnroil the election void on tlio
(fi-ound of Ijribfry by jij,'iMits of tin; respondent, hut
(iliibit<iiif<-) without his knowledj^e or consent ; and he
reported that corrupt practices had extensively prevailed
at the election.
Kroin the aliove jud;^'THent the petitioner a])peale<l to
the Court of Connnon Pleas under tlie .')7 Vic, c. 10, s. .*{.'),
on the Ljround that upon the law and evidence the leariuMl
Jud^e sliould have declared the res])ondent ;;uilty ot
C(irru})t practices, and shouKl have found that eoi-rjipt
practices had heen pi'oved 1 > 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 evi<lence set
out in the case was sutiicient to .show that corrupt practices
had l)een conunitted hy the a,i,^ents of the respondent and
witli his knowle(l<jre and consent, notwithstandini,' his dis-
clainit'r. That wilful intentional iLjiioiance is the same as
actual knowledi^e. That the assent of a candiilatt- to the
conupt acts of his atfents may he assumed fioni his non-
interference or non-objection when he has the opportunity,
ami that io is sutHcient to e.staltlish such candidate's know-
ledj^e of and assent to the fact that hisa*(ents used bribery
to procure his election without connecting him with any
l)articular act of bribery.
The judj^ment of the Court is reported in 24 C'. P., 4;>4.
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<l that MO hirther cviilencc shouhl he roceucil on the i>,-,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)\<i
one hiinilrcil [x'lsonal t'liiifL,'os Ji'^aiiist rcspoiulciit. I^iior
to tlu- trial, and on tlif li'th St'jitniilM'r, the rfs|i()niliiii
caused the t'ol lowing;' notice to Ite sei'Veil ou the jieti-
tioners" .sulicitor.s :
"Take notice, that on tlie ti'ial oF tliis petition, tho
rcspondi'iit will ailmit tlu; following' facts, that is to say :
That a person who. aceDiNlintr to the coniiiion law ot" Kiil;-
land in ret'ereiice to the eleetion of iiu'iiihers of Parlia-
ment, wouhl he held to lie an a^fent of th<' respondent at
the .said election, did, liefore the .said election, i,dve a sum
of monev to a voter to induce him to vote for the respond-
ent, hut that this was done without the knowled;^e aii'I
consent of the ii'spoiulent.
r'^^»i^^»'^i^i*'
'I
I.S74.]
WEST SOUTH CM HKIM-ANT).
'yM
" Ami further tiikc notice, that in so t'ai' as tht' peti-
tioners sock to V(»iil tht' saiil election on account of the ■
acts of aLfents of the res))on«lent, the i-espondent will, if
the petition 'rs incur any fuitlier expense or jnotract the
trial of the said petition in so far as (toi-i'upt practices Ity
ni^eiits ai'e concei-neil, ask that tlie petitioners pay any
costs wliich may hereafter he ineurreil.
" Ami further take notice, that the respomlrnt is ready
and willing', and lierehy offers, to cause to Ite served, at his
expense, notices of counternumd of the suhp<enas served
upon witnesses in so far as corru{)t practices hy a;^'ents is
concerned, in onler tliat the conchict money paid to the
said witnesses may he rettirned hy them to the peti-
tioners, and in default of the ])etitioners countermandinn-
the services of the sai<l sulipo-uiis, the resjiondent will
claim to l)e relievetj of the expense (jf the atteiuhmce of
the said witnesses at the trial of the said petition.
" And fui'thcr take notice, tliat the respondent denies
that lie was ])ei'sonally i,aiilty of any corrupt [»ractice
whatever at, l)eforc, or after tho .said election, or that any
corrujit practice was committeil at, lielbre, or aftei' tlie
•^aid election on Ids l-ehalf hy or with his knowledL,'e ami
consent.
■ And take notice, that if the petitioners further insist
upon the said charges of peisonal corrupt [)ractices at^ainst
the respondent, the respondent will at the ti'ial claim to
he relieved from the payment of tho costs of the petition,
which may bo incurred in consociuonce of tlio petitioners
further pressin<; the said charj^es."
The petitioners .served no counter notice, hut prococ<lod
to trial.
/>/'. MiMiihud, QC, for petitioners.
.)/;'. lii'tlniiir for respondent.
At the openin<;' of tlie court, counsel for the respon<l-
etit ])roved ,sei'vic(,' of the notice, and conti-nded that aftei'
the iKjtice it was not necessary for the petitioners to pro-
.•57
¥
m
r ■ \i
5()4
DOMINION ELECTIONS.
[a. I).
I I
cced t'ui-tli«'r, as thi' Court would not act as a couit of
in(|uisition ; and this notice was e(|uivak'nt to tlw with-
drawal of the plea in a Nisi PriitH record, or of the answer
of a defendant in Chancery. He referred to the Snntl,.
am[>tini 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 voi<l.
])i: McMivliavJ, for the petitioners contended that
under 80 V^ic, c. 2!S, s. 20, he should he allowed to give
evidence that corrupt practices extensively prevailed at
the election. The petition so states, and in the interests of
public morality and public policy the petitioners should
be allowed to go on and have i. full in<|uiry.
The Chancellor ruled that he would follow the
decisions of Willes, J., in the Windmr case (1 O'M. iS: H.
()), (jiiilford <'(ii<f' {ibid. 15), and Sohf/uonjiton r(i«t' (ihid
227) ; and Grove, J., in the T((vnton cami (2 ()"M. .V H
74), and WtdrjieUl aine {ihid. lO.S). The functions of tlie
Court are judicial and not inquisitorial ; and any evidence
to try tlie issues would be received, but not in any way
contrary to the rulings of the learned Judges referred to.
If incidentally, in the course of the incjuiry as to the
personal charges, it ai)peared that corrupt practices had
extensively prevailed at the election, he would certify
that fact in his report to the Speaker.
TV ' T ^l'}\
i.s74.]
W EST N( >U 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 <h'Hvere«l.
Si>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<lue
of the resi)ondent as would void the election. 2nd. Such
corrupt practices as, undei- sec. I.S of the Act of l<S7.'i,
would dis(|u;tiify the res|)ondent personally, .'hd. Exten-
sive corrupt practices, which should he cerliHed under sec.
•JO, suh-sec. c. As to this latter point I am unahle to
jertify on the evidence hefore nie that extensive corrupt
practices had prevailed, under siili--!ec. c of sec. 20 of the
Act of lS7:i.
With reference to the first l»ranch, 1 considei- the notice
;;iv»'n hy t\u\ resj)ondent on the l!)th of Septemhcr was
surticient to lender it unnecessary f(n- the petitioner to
prove a case merely for avoiding; the (dection. It was put
in a technical form and couched in the lanj,fuaji;e nseil hy
jud;:,'es in similai' cases. If the petitionei's sou;.i;ht nothing'
more than to avcjid the eK'ction, they were safe in comin;;;'
into court without further evidence. When the point of
Ljoiny- faither was raised it was a new one, hut I con-
sidei'eil that the cjises had decide<l that the Court was not
one of im^uisition. This was not a (piestion hetween the
[liiities — it was a (piestion of puhlic policy for the di.scre-
tiiin of the Coui't. I had asked, when the matter was
picssrd u[)on me, cnl liiiiKi f In the Knt^lish cases the
.hiilijes <lecide(l whether they would or would not ^o
fuither after the issue was proved. The lani'uai'e of the
Act of 1.S7'} showed that the Le<,dslature hei'e had also
made a distinction. Besitles, it is not appaivnt that it
would be wise or right to go into the intpiiiy. There
was no grievance to the petitioners; it is no mor»' theii'
ati'air than that of the re.st of the Province.
')()(!
DOMINION KI.EfTIONS.
LA.I>,
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 <l not to cei'tify, ami I still
consitU'i- that 1 decided ri;,ditly. Tlie Tininlini rn.-n' (2
O'M. i^ H. 74) also suppoited this view.
Tlu'n as to the])ersonal char<,'es, it wasallene<l that tliciv
had heen such extensive hrihery that the icspoiidciit
either must have known of it or wilfully closed hi^ ivis
to it. Ahout !*l,(l()(), not moie than S|.7(M), njipeaivd l.y
tile eviilenee to have hteu ;,pent. 'I'his hy tacit eonsint
was jilaced in tlie hands of a jfentleman, and he. wisely nr
unwi.sely, had hid the amount from the i-i-spondent. It
was said that the exj)enditure lunl heen lej^dtimate. Kviii
if the respondent had known of it, it was nec«'s.sary te
prove that it cotdd not, from its amount or otherwise.
have been used leLfitimately. There was not a tittle df
evi<lence to that etleet. Hut it was not neces.sary to ^o
so far, as tlu' respondent did not know of tlie aniuunt.
If it ha<l been shown that the amount had bet ii so laiuv
that the expenditure must have bet'U corrupt, and that
the res])on<lent, if he had known it, nuist have wili'ully
shut his eyes to the facts, I woukl liave been <lispose(l tn
hold the respondent responsible ; but the facts did not
call for that. It was not brouirht home to the respoiiili'iit
that he knew of more than his own S2.')0 and his lirotlier's
$800, and that it was likely a further contribution would
he made. I'his was far short of the e\ idence i'e(|uired to
make the resi)()ndent pei'.sonally liable.
Next, as to the other por.sonal chai'jjfes. Mr. Laelihm >
case would have been seiious if it could have been .su])-
ported ; but, as Dr. McMichael fi-ankly admitte<l, it couM
not. The demeanor of the witne.s.s, his unsatisfactory
' ^ ' ' ^ Ml 'I I
WKST NOUTIIIMIIKUI.ANI).
Mil
IN74.J
i(|>Iiv><. 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
\<r wise ill cainlitlatcs to refuse to have anythiiij^ to sny to
the voters ihiriii},' elections ahout money matters. Tliere
i•^a teiiileney thirinj,' eh'ctions to press <l<tulitt'iil chiims for
settlement. The Culirt sliouM lie satistieil in such cases
clearly. Logically, ])eiha|)s, if a case were proveil, the con-
^ri|iiences woiiM follow as stated in the Act ; hut the
(Mints do draw a tlistinction and hesitate |on;^'er where
llie consetiuelices Were serious.
I must therefore adjud^n' that the |»eis(»nal ehari,'es
liiwe nut lieeii pioveil in sueli a way as lo justify me in
!v|Mtrtiiie^ them as estaMished. As to what nii<,dit have
Ixcii i)rove(l, I can only gather that there were cases of
suspicion and of Idiherv incideiitallv revealed. Tlu' re-
s]iondent at tlie lte;,diniin<,f of the trial admitted one case
of liiiliery hy an an-ent.
This was a law ahsolutely neces.sniy to he ])asse(l. The
jnactice of hrihery jirevaileil throughout the country to
a ureal extent. It wa.s a demorali/iiiLT practice to the
hiiher, the person hrihed, tlie constituency, and the can-
didates. The etfect miuht l>e. if permitti'<l, to i)lace rich
and disli(»nest men in Parliament, to the exclusion of the
holiest poorer men. It was a i^reat puhlic wron^ and in
derogation of the francliise, which had heen tt'iiiied a
I'ublic trust.
As to costs. The petitioneis mijjjht liave come to court
on the notice served hy tlie respondi-nt, and asked to hav(!
the election .set aside. They di<l not choo.se to do so;
they went into evidence, hut have failed to estahlish their
personal cliarj^es ai,'ainst the respondent. They have
estahlishod ca.ses of suspicion or of imprudence. The
costs of this attcnii)t, which is a failure, should not fall
upon the respondent. The respondent sliouhl pay the
costs whicli he would have had to pay if tiie petitioners
I
\ (I
>
■
■ ,1
i
>f
■
o(i^
iHiMlNliiN KI,KCTI«»N3.
\VU
hjul takt'M the cuiirsr iiiilicntfd. 'Plifif nIiohM !••• iiitcosts
U) the rrs|i()n<lrnt )it,'ainst tin* pctitioiicrs.
(!• ( 'iiiii niinis Ji.iii n<ll. |S7'>. |». 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 <i/., Prf!f!,),it'rK, V. JoSlAll lU'HIi I'l.l Mil.
Respondent,
Ejris.-^iri 1 .1 1" iiili/iri l{inpiiwlcnt'H il'nti'lnivwr ul larvii/'l /indiiriH —
///■/■/). ;•// — A iji'iiti — Siih- A i/i-nt'* — Cox/m.
'I'hc ro8p<)iiili'iit, ill a coii^titueiicy win re tH'JpC'rHoiis voti'il, rci'civeil :i;t(i
votes, illid lii.M L'lcc'tioii fxpciiMi'S wtMu lllniilt .":<'_'. COd. Tlie lliniicy wiiH
I'litni^tt'd liy till' n'spmiiUnt tn niu; <i., witli a caiitiiiii t<i ki e lliat it
wa.s UHfd lor liiwfiil |iiiriifiscM (inly. Aliiiit Si ■_'(((• (if tins iiinncy \\:in
givfii liy <i. to oii.j W , who ilistrihutfil it to several jier^oiiM iii Minis
of .S40, 6KIU, s-J(IO and ifL'.'in. No in.-tiin tions as to exiienditiirt'
were L'i\i'ii I)/ (^. to \\'., or by \V. to tlie persons aiiionyst Nslmin lie
distriliLiteil the money ; and liy the lattir several acts of hnliery ucir
coiniiiitt(Ml. The respondent iiubliciy and privately disclaimed any
intention of sanctioning' any ille:;nl e.xpemliture : Imt made no iii<|iiirii'ii
after the election as to how the money Inul been spent until a weiik
oi' two before the election trial. He denied any act of bribery, direct
or indirect, or any know le(l>,'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 \(it('(|, and tlit> it's|)oiii|t'Mt had a majority of
iliifty. Tilt- irspontlfiit aLfrt'i-il to t'onif foi waitl on tin-
iL'tli .January: tin- poilin;LC f'*"'< pl'iff on tin- '2'M]\ of
.l.inuary, 1^74. 'I'Ih- ir-pdndt-nt is cliaiii.Mtn of tlif Stci-I
Wi'i'Us ('oiiipany, of which Mi', (iiiiin i, si ictar*' imd
acts as local treasurer, (iiinnwas a|>poiiiii'l on the l.-t
lit' .lanuMi ,■, and only caiiH' to icsidr in Niai,^iii;i i the
l.")th of Jannaiy lir>t. Their is no liaiik n^riicy or ■\pirss
. liicc in Niai^aru.
( >ii .laniiary iMith the ii'spundcnt sent (liinn *>> Toronto
with a It'ttcr to Mr. (i/owski.a stockholder and director
(if the company. The respondent tohl (Iiinii that money
wciuld lie wanti'd for the general piir|ioses of the election,
iiiid also I'or his o\vn purposes and forliie Steel Wrnks.
lie hail men then at work on his dwii |iremises. ( Jiinn
presented the lett'i' to Mr. (Izowski, who went with him
to the Montreal Hank andsp(»ke to the manai;er, who then
nave ( Juini SI ,!i!)2.')(i, and he iufornieil respondent thereof.
The latter an thorizt'il (iunn to dislmrse money reipiired
for the election, cautioning him <listinctly to si-e that none
iif the money was used i\)r anything hut perfectly lawful
liur[»oses, and on sev«'ral sul>se(|Uenl occasions said the
same thin<?.
The respondent was very laisy ahout the election, and
niithinjjj whati'ver .seems to have taken \)\'o,w l»etween
them as to the suhseijUent e.\})enditure. (Iunn knew
hardly any one in Niagara, and ne.xt day, at the sutin-es-
tion of one liurke and others, handed 81,200 of this money
o70
DOMINION ELECTIONS.
[a.d.
to ])i'. Wilson, a well-known physician here and lespoml-
ent's nuMlical a<lvi.ser, thinking he was the pi'oper person
to deposit it with for lawful expenses, takin<f no receipt.
Gunn says he had no idea »)r intention that the nionev
should be i'npropcrly spent. He afterwards paid several
hundred dollai's more for various expenses — piintiiiLr, 'mil
some very heavy livery hills. He gave !?100 hack to
respon<lent. and after paying all the calls upon him. hail
a balance of over 81 00 on hand, which he applied U) othfi'
matters not connected with the election.
Dr. Wilson admits the receipt of this money, undci-
standing that it was to be used foi' election purposes, not
unlawfully ; and he says he does not know whose money
it was. The doctor .sent .S2')() of this money to one Lowry,
in the St. David's division, .sending it in an envelope by
one Mur))hy, without any letter oi- mes.sage, simply ad-
dressed to Lowry. Murphy swears he gave it to Lowiy,
not knowing there was money in it. Wilson also gave
i?2.')0 to Thomas Hiscott, in the division of V^irgil, with-
out any instructions ; and also .S200 to Longhurst, in the
remaining (Queenston) division. He also paid .'^lOO to
Tliomas Burke, S40 to J. T. Kerby, lor expenses, and small
sums to others. One Kennell, a non-elector, was paid
smo foi' services, and Wilson returne<l S2.S (^r .^2!t to
( iunn.
])r. Wilson says he did not intend to use tlie money for
improper pui'poses, as he is opposed to .such. He thought
the parties to whom he paid it were responsible persons.
He gave no ijistructions to the persons to whom he gave
the mon(!y how they were to u.se it, nor did he ask how
it was u.sed. With the money so received, Longhurst, as
his evidence shows, committed several clear acts of bribery
and disposed of .some of the money in a most .suspicious
way, giving his nephew, a vyter, SOO of it, telling him to
do as he liked with it, meaning about the election ; ami
.'?70 to anothei- man, nuich in the .same way, never a.skiiiy
any account of it.
P. I
t ' t
i^r^n'^w^^m
1«7+.]
nia<;aha.
571
Out of this !?25(t ifiven to Lowry ho returns ^flin. Ht-
sfiy^ li*-' P<ii<^ one Stuart after the election, for lawful
erpenses, horse hire, lifjhts and fuel, 1?1.'}(I, hut he can tell
iiothini^ about wliether the claim was real or false, or any-
thiiiif ahout this man Stuai't. Lowrj', in my jufl^Miient,
coiiiiiiitted at least one act amountiuif to hriheiT in Mis.
Hanniwi'll's case.
In the third case, that of the money j.fiven to Hiscott,
for the Yirjfil division, one Waltc^r Thompson says tliat he
found 82."i(> 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 divide<l among'
five or six people the night before the ])olling, telling them
to go to work at once. He made no impiiry how it was
s])fnt, nor was any attempt made to pi-ove that it was
s[)ent honestly.
Bribery was al.so connnitted In' Robert Best to the
extent of 840. but I do not consider that the respondent
was in any way affected by it.
The respondent was examined and gave a full account
of his candidature. He sai<i irom the beginning he was
determined to make or sanction no illegal ex))t'iiditure,
and rej)eatedly announced this, his resolution, both {)ub-
licly and privately (in this he is fully corroborated) ; that
this was his first experience in elections, and he ha<l no
idni of the costs. Tliere were certain charges matle against
liuii as to tran.sactions in Albany, which he foiuid it
absolutely necessary to refute publicly befon' the electors,
and in the short space before the polling he spent tliree
days in the United States getting evidence, a!id had to
s])end a great deal in printing. Tliere was no local papei'
or printing office, which caused more expense. His whole
expen.ses, he said, were between .^'i.Odl and .«-2,l(K), i51,.S()()
liriiig spent tluough (Junn. He himself ))aid a St. Catha-
rines paper for printing in April last 8100, a shorthand
reporter i^oO, and necessaiy telegraphing from STj to 81 "O.
His personal expenses were under 8').
572
DOMINION ELECTIONS.
[A.D.
Ho denied any act of l)nl)ery, direct or indirect, or any
knowledge thereof, and as to treatinfj, he only spent 70 or
•SO c<Mit-<, and that I think was not tor any puipose (,)•
motive connected with tlu; election. No atteiiiiit was
made to prove any personal knowledge on his part ul anv
of the specific wi-ongful acts or payments. He says that
until (piite lately, in fact the last week or tw), he did not
helieve tlie petition wcnild be proceeded with, and ncvci-,
till he found it was really coming to trial, ilid he make any
iiKpiiry as to tlie charges. H(! and Gunn hotli state that
it was only within this period that he was maile aware
how ( Junn had disposed of his money. He never suspected
or knew that the.se sums were paid to Dr. Wil.son, or dis-
posed of Ity him as proved. He accounts for his ignorance
hy stating that he ha<l |)erfect contidenct; in (iuim's
intelligence and integrity, and having given ( Junn explicit
instructions nijt to spend any money niegaily, he di'l
not tliink that anytliing was wntng; that his cash trans-
actions were very large, and that his general hahil wa.-
not to clo.se up or Ijalanee his accounts till tlu.' end of
each year, and so he ha<l not yet examineil how the cash
sto(xl with (Junn. When he discovered the amount that
had actually heen expended he says he was much suiiui.^ed.
and thou'dit it was altofjether too large.
I think the respondent, under the [)eculiai' ciicmu-
stances of his canva.ss, has .satisfactoi'ily accounted for his
not having personally superintended (jJunn's expenditun'
during the election.
On a review of the whoh; evideiice, 1 see no rea.son to
doubt the respondent's very emphatic denial of any coi'i-upt
moti\c or intention. I accept his declaration that he
entered into the contest intern ling to spend no money
illegally, anil tluit he was in no way cognizant of any
illegal act.
It remains to be considered whether his election is to
be avoided for the undoubtedly corrupt acts of some of
his friends.
-JY ITT ; I ■! 'ijf 'f T <i>ix 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<r<'estion, lianas !?1 ,200 of it to Dv. Wilson in the vajfuest
manner, i^ivinj^r no directions, an<l nescr iiKjuirini,' as to
its employment. If he made Wilson the )»ayma.ster, it is
not, easy to see why he did not refer |»arties ccjmini,' with
claims for hiwful expenses to Wilson. Me ])ai<l tliem him-
self, without imiuirimf wliether the Jar^'e sum n'iven to
Wilson was or was not exhausted, fli' ne\-ei' asked foi-
an account fi'om Wilson, liut let him do as he pleased. I
look upon tlie I'elation of hoth (luini and Wilson to the
respondent in the same linlit, ami I tliiid< the latter is as
clearly r('s[)onsihle for wliat Wilson did as if (iunn iiad
done the .same act — when Wilst)n Lfives to Loni^iiuist (for
example) .S2(lii to use as he mii^'ht |)lease, ahout tlie elec-
tion, of coiu'se in the [ii'omotion of respondents interests.
With part of this money Lonejhurst commits several clear
acts of l)ril)ery.
.Mv strong iiiii)ression is that the aceiicv continues
•- i. r^ •
imdei' these circumstances, and the respondent's election
iiiust lie affected theiebv. The .same miuht he saiil in
Lowry's ca.se and in Hiscott's, whom Di'. Wilson was
pleased to ti'ust with .S2.")n foi- the Vitnil division, to he
expended as he plea.sed. The placing' of it in Thompsons
stahle, to lie found by the latter, can hardly lie leferablu
to a transaction intended to be honest; an<l the sub.seipient
ilistiibiition of it by Thompson raises the L,n'avest suspicion
that the whole proceeilin;^ was intemled to be an evasion
of the law, and resulted in an illeeal expen<liture.
if I do not hold the ay;ency to continue in this case, I
think I would be, as far as in nie lii-s, rendering; a whoh.'-
soiiie law inoperative, and opening a wide door to corru[)t
acts.
^.,
fc-
U\
tl;.
574
DOMINION ELECTIONS.
[a.d.
n '
The Be^iulhnj ciiHc (1 O'M. & H. 1<S), I think, stron^'ly
supports this view. Sir Colin lilackburn's judL-ninit is
very e.xplicit. There the respondent deposited a larifo
sum in the hands of one Pardoe, (hreetinr,'hini in his letter
to apply the money honestly, Vmt not exercisin<r, either
personally or otherwise, any control over the manner
in which this money was spent, etc.; not, in fact, knowin<f
how it was spent. He then says: " I can come to no other
conclusion than tliat the respondent made Pardoe his arfent
for the election, to almost the fullest extent to which
agency can be <j;iven. A person proved to be an ap;ent to
this extent is not only himself an agent for the candidate,
but also makes those agents whom he employs.
An agent employed so extensively as is shown here makes
the candidate responsible not only for his own acts, but
also for the acts of those whom he, the agent, did .so
employ, even though they .are persons whom the can-
didate might not know, or be brought into personal
contact with. The analogy that 1 put in the cour.se of
the case is a strong one ; I mean that of the lial)ility of
the sheriff for the under-.sheriif, when he is not merely
responsible for the acts which he him.self has done, but
also for the acts of tho.se whom the under-.sherifF employs:
and not only responsible for the acts done by virtue of the
mamlate, but also for the acts done under color of the
mandate, matters which have been cai'ried very far indeed
in relation to the .sheriff." I think these principles nmst
govern this case.
T do not think that lii-ibery prevailed exten.sively :
most likely large portions of the money proved to have
been paid to certain individuals did not go beyond the
payees.
I shall report that the respondent was not duly elected
and that his election is void, and that he must pay the
costs of the petition ; that no corrupt practices took place
with his assent or knowletlge ; and that corrupt acts
were committed by William Longhurst, David Lowry
and Robert Best. I am inclined to look leniently on the
1S7+.]
MA(iAK.V.
.-75
loans nijule by Best. He very frankly told liis story, an<l
li )nestly put the worst construction on what he did,
;iltli<iu<;]i many others woul<l prohalily have insisted it
was all rii:ht. After nnich consideration, 1 have decideil
not to re{)ort Waltei Thompson oi' Murray Kields, hut I
think the ilis|)osition of the monev thev received was
most reprehensible.
It was urged upon me iiy Mr. Roltinson that 1 should
make some special (jrder as to the costs of certain witne.s.ses
said b) have been subpo'iuieil to bf in court, l»ut wdio
were not called by the petitioners. 1 do not .see that F
have anv material before nu> to warrant my makint; anv
oriler now beyond directing, as I do direct, that no costs
be allowed petitioners for any witnesses summone<l or in
attendance, respecting any charge of undue inHiience,
tlireatening with loss of otiice, salary or income, or the
(il)ening or .supporting houses of entertainment for tlie
iicconnnodation or treating of electors, as I consider that
the ca.se disclo.sed no .such practice, and that such chaiges
were unwarranted. In my view of the law, I think it is
in the province of the ta.xing master, after healing lioth
parties, to decide what witnes.ses t(; allow or disallow.
Such is his duty, I think, in ordinary cases. It does not
follow l>ecau.se a party is successful and entitled to the
general costs of the cau.se, that he is entitle<l to the costs
nf all the witnesses he may sub[)o'na ; nor is tlie fact of
tlieir bt'ing called, or not called, the test of their being
reasonably taxable.
1 cannot conclude without expressing my strong sense
of the a(hniral)le manner in whicli the case has been con-
tlncted on both sides, and the total al)sence of all irrele-
vant s<:atements, and of any undue waste of the public
time.
(9 (^mn iiiDiis Jiiii null , I^7">. 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 <j;iven of briber}' by atrents, and of suli-
.sci'iptions to an election fund and to churches by tlic
respondent. The principal facts of tlie ca.se are set on
in the report of the case in tlio appeal to the Court 'y'' ''iih-
nion Pleas, 24 C. P. 4S8.
At the close of the evidence, judgment wa- ■,i\ :Mi
follows :
Galt, J. — I declare the election void on the ground of
bribery by agents. I find that the respondent was not
himself guilty of corrupt practices. I order the respond-
ent to pay the costs of the petitioners.
ivi vn
»TT " • T
''51
LS74.]
EAST N'ORTHrMMKHLANI).
577
The petitioner appealed to tlic Court of Common Pleas
n^'iiinst the finding on the personal charges, on the ground
tliat the respondent had used means of corruption, and
had been guilty of corrupt practices by giving money,
and making pi'omises of same, and by subscribing money
to churches and colleges with intent to coriupt or bribe
electors to vote foi- him, or to procure his election.
The Court, while intimating that had the finding of
the learned Judge been otherwise it would not have in-
tei'fei'ed, declineil to set aside the judgment of the Elec-
tion Judge, and dismissed the appeal without costs, as the
petitioner had strong grounds for presenting the appeal.
(!) dnninoiis .foiirmd, 1H7'^, ]>. 30. »
I- I
EAST NORTHUMBERLAND.
Befohk Chief JrsTicE H.mjauty.
CoHOUKd, f.'7//i Ocfohir, IS74.
Roheht Cihsox, Petitioner, v. James Lyons Bi<i<jAR,
Respondent.
Commit tern — Aifrnci/ — liriherii— l^tirtifular.'< — CoxIk.
Tlie respondent nominated no conimittees to promote liis election ; l)Ut he
was aw.are that conmiitteeH were acting for him in each municipality.
On one occasion he went to tlie door of one of the committee rooms,
and left some printed bills to he distrihntod. One P., who attended
the meetmgs of this committee, and who said he was considered on
the committee, committed an act of hrihery.
//>/'/, 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., <ind Mr. C. R. W. JHggar, for
lospomlent.
.■)7«
IJOMINIUN EI.ECTKJNS.
[A.D.
I
mi
ff
It
■*•','
The case turned upon tlie (piestion whetluii' sclf-
oi'^'anizeil cominittiH'.s tor prouiotinf^ the election oi' the
i'»'.sp(jn(lent weie his ajjftint.s or were volunteers. Stuhn.
hriihjc cdxr (1 OWl. i^ H. ()7) ; Wf'Mfinhisf.i'r cnnc (Ihl,/, ',)\ ,
The evidence on the' point was as follows:
lii'Hpniiih'iif : I nominated no C(^nnnittees, hut I uinlcr-
stood eoniniittees were nominated. I suppose there was a
connnittee in eacli municij)ality. 1 once went to the clum-
of the committee -room for Hri<,diton village, and left some
printed hills to i)e circulated. Phayre, of Bi'iy;liton, was
a supportei' of mine. F cannot sa\' f saw anyone thore
hut John Proctor, Kemp, and, I think, Ketchum. I iicvci
attrndi'd an}' connnittee. At foi-mer elections the com-
mittees were appointed hy the Reform Assuciation. it
acted on its own motion. I had no control over it. The
convention that nominated tlie candidate took ii|iiiii
itself to name committees. I assume tliey Ud so. 1 hail
n(jthin<,f to do with them. I paid no expenses of any
connnittees.
Ini B. PInii/ir: I was one of the persons who met at
the Briifht(m committee-room. I (hd not see the respond-
ent wlien he came to the committee-room. I (hni't know
wlio were appointed on the connnittee ; I helieve I was
ci)nsidered on the connnittee. I was at the room nearly
every evening. We had voters' lists, and it was placarded
as a coijunittee-room working for respondent.
Hagauty, C. J. — I must assume from tlie respondent's
own statement that he was aware of an oi'gani/.ation
in each municipality, acting in the character of a com-
mittee for him. As to the Brighton committee, the
evidence is strong. The room was placarded as a com-
mittee-room. The respondent went there on one occasion.
Mr. Phayre had visited it constantly ; it was known to
everyone as tlie respon<lent's connnittee-room, and the
respondent was aware of .some organizatioji working for
him in Brighton. I think agency in Phayre is proved;
and an act of ljril)ery having lieen conunitted by him, tlif
election is void.
•il!
InTI.]
cKNTIiK \VI:I.I,IN(;T'»N.
-,7U
Till' rcspdinlciit iniist [uvy tlic |t('titioiifr'.s costs; l»ut
iiwiiiu' tn till' cliiuily iii;uiiirr ill wliicli the piirticiilars havo
liirii |iivjiari'(l. 1 ilisalidw so inucli of tin* petitioner's
I'ci^ts as lia\r liri'ii iiiciii rc'l in olltaillill;^^ aiiiciiiliii^, l»rirt'-
ill- aM'l plat'iiiii; the pan iculars on tlir record.
{[) ( '(innimii'S ./nil i-iiilt , IS"'), ]». ll.j
rivNTIU-: WKLLINdTON.
\et at
,. 1 \Yil>
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 <iij'iins' ri Kjioinh nt—CoiijI'iclinij ivhlmre,
T!i>' 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<l ctmiliilate, on a scrutiny of votii.s.
Mr. liillniiiiiiiiil ^fl^. (t'n//ir!r for petitioners.
Mr. hrif for respondent.
llxidence wtis !_;'i\i'ii of acts of iiril't'ry coniiuittcd liy
tlir parties nanii'd in tlic jndLiiiient ; an<l at the close of
'lie i\ ideiice on the first day, counsel for tlu^ lespondent
iiihiiitted that sulHciont eviih'iice hiid l»een i,'iven to avoid
the eli'ction. Evidence was then j^-iven on tlie personal
38
i!i
■■•■■m-i-\
I
iSO
l»nMI\|(»N' i:i,i;( THiN'S.
[A,n
y- i t. ■
^^4^
(rliiUL;i's auuiiist tin' I't'spondeiit a.s set otit in tin- juil"-
mciit. At till' cDiiiiiii'iKTiiicnt of tlictri.'il tlir claiiii fwr
till' scat \vii> 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+,]
<i:\Tia': \vi;i.i,iN<iTuN.
581
till till' frii'ii'l ivtuiii.s, uml ihc wlmlc party — principal
ami a;^'('iit — :<<]wj; away ti);;ftlicr.
Aifaiiist fhi-, tlic rcspi'iiili'iii -wears very po><iti\rly that
Iiciu'M'r iiia'lc ^iicli an olTn' i>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 <lo not set' my way to liolilin;^; tliut tlit,'
tiaiisactioii toi»|< jilacc witli his UmowIciI;^,. ,,(• assent
\vln'n tlif only f\\o |h rsoiis wlio knew how it n-allv
was
swra
r positively that ii was not so. I0\ fiythin^f imist
thei'el'oir turn on what took |tlaef in the hou>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 frien<ls taking' Caniphell to the jioll in
the niorninjj^, ami .she might easily in good faith have
accepteil her hushand's version of it as that which shu
had heard.
] Had the matter resteil solely on Cimipbell's («itli as
opposed hy the respondent's, 1 would act as I have already
I III ^n^pwim^^BM
1^74,]
CENTUK \VKM,IN<n"(»N.
:>s:{
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<l to till' rospoiulcnt as an offset ai,fainst pcri-
tiuiKji's' costs. 1 also find that .lames M. Fiaser. I'Mwai-i
Claiuor, Amlrew Forester, .lames Smifli. Micliai I Knliv
Aai'on IJaker, .James Keiliy, .leivmiali llallett, l)aviil i).
Ki'lly aii'l Deniar'.l Campliell. lia\-e lieeii I'liuiiil, in ii,v
jmiu'iiu'iit, to Ik- uiiilty of eunupt jxactices, aii<l [ sliall
i-eport tie 11 1 aceonlinu'ly.
(!) (.
ilnl i/M*/(.S Joil.i'iiil
'/, lN7-">, [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<i, undui' Iniht'uri- (uul iroi-il.
I'vh
I cxpi iixix — Corrii]it pri'ff'fi .■
i-ofi-rx — Svriilhii/ — Miniiib
III rijfi
lb
il roll — <ju(ilijic'ilif)ii of
■<f.-< — Iti'flO)'/ iij J III i If If)
Tlu- 1).
I'lk'ctiiiiis Act of 1S74 <l(ius lint .-illbet tlic riirht.s of ynxXi
ill pi'iiiliiij,' proLOi'(liiii;s, wliicli iniistiln; ilcciduil accoiilint,' to tin; law
it (.xistcci hcfore the \kv>
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 <iualifi"il in
respect of property, (Jccu[)ation or \alu'-, ftr who-c (|uali-
lieation was for other causes insutlicent, or wlio wm,' iv-
sp(!ctively suhject to le,L;al inca])acity or wi'i'e pi'ohihitcd
hy law from votinu', or were not -uhjects of ilcr .Majc-tv
by hirth or naturalizatioii, and such votes oir^ht now tu
l)e struck off the jioU.
" S. 'I'hat many ])ersons who had hired their liorscs,
sleiylis and carriages to the said dames Maelcmian and to
his ai^ents, foi'the purjiose of cariyinu,' (dectors to anil fioin
the polliuL!," ])laces at the said election, voteil for tln' said
James Maclennan at tin- said (di'ction. an<l were rcckoiird
on the poll for him ; and that the ti'avidlini;- and otJiiT
expenses of many persons in yoint;- to and returniiii; IVoin
tin; said election, and who voted for the said James Mic-
leiuian, wert; paid hy the said James Maclennan or hv
his aju'ents, and that the \'otes of all such person.^ were
an<l are void, and should Ix:! struck ott the said poll.
" 10. That tlr,'. voters' lists used hy the several di']iiu_v
returning" olHcei's at the sai<l (dection wert^ not coi'nct
alphahetical lists of all persoirs entitleil to \ote at the
said election, within tl>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<l that the jjolling places for each of the suh-
divisions, oi' wards, wei'e not {)rovided in the most ceiiti'al
iiiKJ convenient place foi' the cli-ctors of such sulidivisioiis,
oi' wards, nor was pul)lic an<l sutUcient notice i;i\fn, hy
|iro{lamation or otherwise, of the said pollii;i;- sidnlivi-
sions, and of the places a[)pointe<l for holdiiij^f the said
poll, and that the jiolling' suhdivisions at the said election
wei'e not estahlished according;' to law.''
The preliminary ohji'ction t(.> 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, an<l latter part of the eighth
pai'agi'aphs of the said petition, that even if the facts
were as stated, si;ch facts are not suHicient to n.-nder the
said votes mill and void, or to entitle the petitionei' to
have the .same struck oil' tlu,' poll, oi- in any e\-ent woidd
Hot ])revent such pei-sons voting at the said idectioii, or
entitle the petitioner to have the saiil votes declareil null
ami \oid.
And as t(j tlie tenth and twelfth pai'agi'aj)hs of the said
]ietition, on the ground that even if tin.- facts were as
stated, such facts are not sutlicient to render the election
or return of the respondent mill and void, or to eiitiUe
ti.e petitioner to be declare<l duly elected and retiuiied.
■: '7 iS 'I
u
:M
- 'i
m
A sunnnons having been taken out by the i)etitioner to
't aside the prelimiminary objections, cause was shown by
r'
58S
Ixt.MIXloX ELECTIONS.
[A.h
1^1
H'V
}fr. Mii'i;il, (^).L'. (Att(>i'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<l <lis(|nalili('jitii'ns
of persons to he elected or to sit or vote as iiiiiiil,ci'>, 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)iini<ins for the same several pro\ incrs.
Then, liy a proviso, special provision is made that in
Alu'inia. in a<Mition to pci'sons nualilieil ly the law ef
th" Pro\inceol' Canada to vote, e\ery male British suhject,
au'cd ■_' I years or upwards, hcinu,' a householder, shall
have a \ote.
Indei' the Ini]ierial Statute o t.V 1 \de., eaji. ')"). sec 2s.
it was pi'ovided that ''Nojierson shall he cajtahle of hi'ii,^
(dected a niendier of the Le^'islativt.' Assi'miily of llie
Pi'ovince of ( 'anada who shall not he Icvally oi- eijuitahly
>ei/.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 <lulv seizid
•4-]
N'lirni VK TdiiiA.
iS!>
;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' <luly si'izcil nr posse'sst'ij I'or luy nwii use ,iii(l
l.ciii'tit of liinii-^ or tciH'iiiciits licld in ticf or in rotnrc a.-
rlif i.-a.sr may I'l,. in \\ir I'l-oxincr of ( 'ana<la, ol' t lir \alii>-
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<l ]'ayalilc ont of "V atl'iTt-
iiii;' till' -^aiiir, anil that 1 li ixc not culliiNiN-cly oi' coloraMy
oKtaim i! a title (o n>- 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 <lo,
(tivl not in (iii/j otluw eoH^; and when any such declara-
tion has Iteen so recjuired. according to law% the candidate
called upon to make the same may <lo s(j at any time
dui'ing such electi(jn ; provided it Ix' made before the-
proclamation to he made by the retui-nin^' otlici.'r at the
close of the election (jf the person oi- persons elected at
such election."
Sub-sec. .Sallows the declaration to l)e made before the
returnin!..,' othcer, oi' a J.R, wdio shall attest the same by
writing at the foot tlie words "taken and acknowledged
before me," etc., or words to the like effect, and bv datintr
ami signing the attestation.
Sub-see. 4. When a candidate delivers or causes to bf
delivei'ed such declarati(Mi, so made and attested, to the
returning oMicer at any time 1)efore th(,' pi'oclaiiiatieii
made by him at the close of the election, he shall be
deemed to have complied with the law to all intents and
pur]K)ses.
The intention of the Imperial Legislature seems to
have been to make the sanu; (jualiHcation as to property
nece.s,sary to (jualify a candidate for the House of Coiii-
nions, here in Ontai'io (Upper Canaila), as was necessary
to qualify him to be elected a memlier of the Hoii.se of
Assembly of the then Province of (,"ana<Ia. Of course the
latter ])art oi the declaration, where it alleged that the
(|ualitication was not colorably obtained to (pialify him to
be retui-ned a member of the "Legislative Assemblv of
the Pi'ovince of Canada," could not api)ly in the .same
words : the intention lieino- tliat lie should declare that
he had not obtained the (jualitication colorably to qualify
him to be elected "a member of the House of Commons
of the Dominion of Canada." The intention seems plain
and tuidoubted. There is also another difficulty in litei'-
ally complying with the terms of the Con. Stat., cap. (i, as
to the declaration being delivered to the returning officer
i
1874.]
NORTH VICTORFA.
M) I
at any time btjfurc the provJn niatiini iiuiilc liy him at tlie
closinjj^ of the election, no siuOi pi'ochimation hein;;' re-
(|uinMl under tlie election law as it then stcuxl. I'.y '1*-^
\' MO \'ie., cap. 18, .st'c. 10, no day was to he fixed t'oi'
closing the election, nor any ]iroclamation of the candi-
date elected. Ne\'erthele.ss, if the candidate nunle the
(k'chuution and delivered it to tlu^ returni'.iH' officer li(.^fore
the pollinjj;' was closed, and probably hef(jre the I'eturnini;
ollicer had made his I'etui'n to the Clerk of the Crown in
Chancery, of the total numljer of votes taken for each
candidate, it would have been in time. Thou<;h the tfi'uis
of the Consolidated Act coul.i not be literally complied
with, it could in .substance. We ai'c not, therefore, pre-
pared to say that b}' the alteration in the law referi'e<l to
there has lieen .such a chanije effected that no pi'operty
(|ualitication was re((uired by a camlidate to bi; elected
for the Hou.se of Commons at the time the election was
held.
If the candidate who now .seeks the seat was nut i[uali-
Hed undei' the statute to 1h' elected, 1 take it fur i;ianted
that the respondent will .show that umler the .")4th section
(if the Controverted Elections Act of bS7."^ It docs uot
follow from this, howe\'er, that he may not be a ^ood
petitioner. Before the (li'enville Act, 10 ( !eo. 111., cap. Iti,
there was a difficulty as to the ])ers(in who could be a
petitioner, and his (jualitication as an deetoi' ^\■as often
attacked; but that statute provided tliat any peison ehiim-
iiig- to vote, or who claimed to be returncil, iiiiLiht pre-ent
ci petition comjilaininu; of an un(lue election. Lender the
liii])erial Statute, .SI »S: '•]'! Vie., caj). 1:^') :froiii which oui'
Acts are copied), it is })rovided by sec. ") that a petition
conqilaining of an undue leturn, or undue election (jf a
member to .serve in Parliament, may be pi-esented to the
Court l)y any one or more of the f(jl lowing persons :
1. Some pei'son who voted, or who hail a right to vote
at the election to which the petition relates; or
2. Some person claiming to have a right to l)e returned
or elected at .such election ; or
im
hi
.-)Ii2
|)()MIN[o\ FLECTro.VS.
[A.D.
•S. Si»iiic ]M'rs(,ii .'illcn'iuL;' hiiiisclt' to liavc l.i-fn a cumli.
<lat(' ;it -^iicli election.
I'luler tlie DKiniiiitiii Act of IS7->, 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 <lonl
may '"• jin'sente.l to the I'llection ('ouii:
1. \>y siiiiir i>fi\-<iiii who was ifdff/ 'jii'i/liiril to x-dt,.
the election to whicli tlie petition I'elates : or
2 and :'. ,\ie in tlie Vi-vy woriU ol thr Ini|ic|'ia! Act.
fit
Now, he)'e the |)etitionel' Wil'^ a cauilitlate, ai
I'l claim-
to ]in\-e a riLi'lit to he eleeteil and I'etuineil at tlie >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.-<hi/ cn.x'' (ih/iL H')\)); lloe m i'^h.-cti'iii-.
2tid Ed. 12:]; R,.uerson Elections, lOth E<1. 410.
A.n.
H'li-
.■Irt-
turn.
(• >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<l, or whose ( |nalitica' ioii on the I'e^ister, wliethi'i
tliev Noted or Hot, was unini] icacha' ile c/ ///■ finn "f IIk-
i'hc(!nii : f./s/ntrn ci'sr I \V. \- Dr. '2'2'I). deciiled imkIi'I
s(cs. 11 .V \-l \'ic., cap. !)s. The words ol' Ml vV '■'•■2 Vic.
(•a|i. I:^-"), are ideiitical : < 'In //< nl/'i ni rii.-.i (W. ^v ih-. <i:''i.
Tiider tile statutes ]irevious to 11 \' 12 \'i<-.. caji i'^.
.'uv one clainnn;4' in liis petition to liave had a ri'jht to
\ote ;it tlie election mii^lit petition, lait undo!- tliat state
of the law, committi es allo\ve(l tlie sittii.L;' mi'hdiei-- to
diow tliat the iietitioiiei's had not tlie ri'^'lit tliey claimed :
Xnrl/> C/irslnrr r,ls,'(\ \>. \{. A" 1 ). 21 i) : P>. ,■"•;-■/,■ r,/s, .:i()th
.luni, l.s2(): ri,tifr<i, //./,v/'r// r,is> (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<l any jieison who has Loon
i:
594
DOMINION ELECTIONS.
[a.d.
nominated cas, or doclarcil hiinsolf a candidate at an elec-
tion."
These proceed in<^'.s on election petitions are not now
consider(Ml as matters in which the parties to them aic
alone intei'estiMl. To nse the lan<^uaL(e of J^ovill, {]. ,)., in
W(i>/(jn<i(l V. Jdiiii's, Tiiniifoii c(if«' {\j. R. 4 ('. I'. .'!<),■)):
"The in([niry is one not as between ))arty and [larty, Imt
one ati'ectini; the I'i^^hts of the eleetorH, the jiersons who
are or nuiy h<' memhers or candidates, and tlie House of
Commons itself." And in the Brecon auw (2 O'M. a: H.
Ji4), Ml'. .lustice Hyles .said: "The petitioner beinj^^ n
trustee for the wliole body of the voters for the boroiiL^li.
and for the public Lienei'ally, caimot withdraw unless he
conqjlies with the i)rovision of the statute." Under the
statute, the petition is not simply served on tht,' sitting-
mendier, Init a copy of tlu' petition is sent to the return
uv^ olHoer, and lie is r(Mjnii'ed to publish the .same, so
that when a petition is pre.sentt'd it is known who tlu-
petitioner is, and if he is a candidate that is known
thi'ou,i,diout the electoral district. If he represents him-
.self as a votei' duly (|ualitied to vote at the said election,
on lookini,' at the rolls and voters' lists, it there appears
if he was duly ipialitled to vote as lie claims. On turning'
to the statute, any person interested in the election sees
it plainly stated that a candidate or voter, duly qualifier I
to vote at the election, may petition. Under such cireuin-
staiices, all persons interested in the matter would assume
that the petition would j^'o on. The special provisions in
the Act to i;'uard a^'ainst a collusive witlidi-awal of tlie
petition would all induce an interested elector to suppose,
when a ])etition was presented by a candidate, oi- a votei'
dul)^ (jualitied to vote at the election, that nothing" coulil
be uru,'e(l a,i,^ainst the in([uiry beini^' proceeded with.
It is objected against the petition that the petitioner
did not possess the necessary qualification to be a canili-
date. He was a candidate in fact. His right to be such is
only now questioned; and unless there is .some, case bind-
ing on us which expres.sly holds that if the preliniinaiy
i s
— fr
ls74.]
NoItTH Vli'TuIilA.
.')!»:
iiKluiiy cstaltlisln's the fact that tlu' camliilatc was not
(|UnliHt'<l, tliort'tV)!')' he lias no /ni-iis nfdiuli to show that
the -ittin,!^' iiR'nihcr is iiot thily flt'i-tc<I, \vc think wconifht
not to stay the innniry as to tl\t" ivsjiondont's riijht to
hoM the suat.
The (lecisions of eoniniittoes to wliicli we liave reterred
are not nnifovni, or we nii,i,'ht he liouinl liy them umh-r
section 'Sn of tlie Dominion Act. There lias ltet;n no ease
citeil on this point which lias lieen 'leci'leil since the new
Act came in t'oi'ce in Enu'laml, that hoMs, if the pcti-
tidiirr is (lisqnalitied as a canilidate, that the in(Hiirv
cannot he ]iur>ne(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<c of sliowiiiu'
that the respondent ha> 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<l may petition.
If the petitioner does not claim the seat, the)-e is no re-
50()
IxiMINIoN KI.IXTlONs.
[A.n.
p ■'
\hU
|s .
VfT'
1-
m
i-^
■ ; .: *
If^
p
ti
: • '
1
.r ■
if
m
crimination allowed ; Itut it' tlif jx'titionn' ilocs claim it
the ro.H)M»n(l<'iit is eiititifil t.) luott'et liimsrlt', anil, licfoiv
the scrutiny, pi'ove a rccriiiiinatniy vn-^r. ami shuw that
tiif t'lfction of th(.' otliri' caii-liilutr conM not. stanil. It
is trUf that even it" In- pinvcs it, f/ir jutitinni-,- nimi st',11
<Jn liifi) f/ir sci'ill I II 1/ In lui'li mil llir si/ttiii/ iiii'iilhi'i' •"
\V<ii/[/nii(l V. .Ill nils, T'l Hilton riisr ( L. If. 4 (j. |». ;{(iS).
In tllC Nnririrh rv/sr (|!> 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<I hd
litnix shiiitli. Martin, !>., 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<late for a seat in the House
of Connnons of Canada, any statute or law to the contnuy
notwithstanding; hut such candi'late shall he either ii
natural born subji.'ct of the Queen, or a subject of tliu
Quc'^n naturalized by an Act of the Parliament of (!itat
Britain, or of the Pai'liament of the United Ivingdoin of
Great Britain and Ii'eland, or of the Legislature of oiif
of the Provinces of Up])er Canada, Lower Canada,
Canada, Nova Scotia, Xe^\ Brunswick, Manitolja, Iliitish
Columbia, or Prince Edward Island, or of this Parliament.
1S74.]
NoliTII VKToJMA.
:,r»7
tm
liv sfctiDii I'TK it i> 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
\v<a.s the natural ami proper one to tlow from thu Act
itself. The intention .sedus to he, hy the 184th .st.-ction,
that the Act in forcL- at the time the elections took plac'
shouhl not lie repealed a.s to elections hehl, ri^Mit- ac-
quired, or liabilities incurred hefoie the coming into force
of the new Act. It also refers to certain enactments
which shciuld not apply to any election of a memour of thi.-
House of Conuiions Inhl iiffci' the passiiuf of the Ad. The
obvidus intention of the Le;j;islature seems tv have bL-oD
that whieli W(juld lie considered reasonable, viz., that as
to the elections h-dd before the passing of the Act. the
law then in force should })re\','iil, whilst as to elections
after the passing of the Act, the new law should be acted
on, iUid govern the light-j of the parties..
Under the l^ominion Statute.. 31 Vic, cap. 1 (the Intei-
pretation Act), in relation to the construction of Acts m'
the Parliament of Canada, it is provided by sec. 7, >ub-
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<l tn act uiide'' the new law
until othei's are apjxjinted in their stead; ;ind all pi'n-
ceedings taken un<ler the oM law shall be taken up aii'l
continued TUider the- new law, when not inctaisisteiif
there'.vith : and all penalties ami forfeitures uiay b..' i--
CoVel't'd, and ''// iii'nct fl/ i)iJ.-< /kIiI i O rihltioii Ai nflf/iU'-
(I'll :ii Ifd rr lidp^)!' 111(1 hrlui'd f/ir I'lpi'dJ , / it flu,' fid/nU' m.d ii in /■
ns if fid' [dtr ovrt' kIi'II in foi'ce, purstiing the new jii'ovi-
sions so far as they can iie adapted to the old law."
Sub-sec '>(). "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 |ien<li)ig uii'ii'
U.D.
Act
2ti"n,
ylac"
L- ac-
forci-
menls
of ih.'
t. Tli.'
e I'con
til at a-
LCt. till'
loctions
le actf'l
r IntL'l-
Acts u''
. 7, >ul>-
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 <li)(.'< not
collie int() force liy repeal of the Act of ].s7-i, under
which this election was held, hut l)y its own athi'uiative
]i()\ver, declaring f/iaf affrr fin i,tissiii<j of the Act no
jualitication shotild he reipiired of a ni ndiilate for a >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 <k'cidi.'il a^
the law existed liefoi'e the passage of the Act referred to.
W'l' ]ia\'e already stateil what we tlunk tin- law was on
thr suhject of the pi'operty (|ualirication Uecessaiy to he
pn»esse<l hy candidates to (jualify them to lie elected.
will n the election in (juestion took place.
As to the oV)jection to the chai'ge of treating and undue
iuHuence alleged in the thinl }iaragra}>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'(
<IUI
that liiilit'i y lias Ihtm cnniinittt'il liy, oi- with the kiiowlnlLjo
aii'l coiisi'iit of, any cainliilMtt' at an ek'ction, such canili-
(liitf sliall lie <h-('nn'(l tu ha\f Ix'cii pcrsoiiall v Li;uilty of
liiihcry at such election, ainl his election, if lie has lieeii
rlecteij, sliail he x'oiih anil he sliall lie incapuhle of liein^
•ted to, ami of sitting;' in, tlie House of ('i)uniion.s
iuLC the seven years next ufter the "late of his heiuL;'
feuiiil '_;uilty, Jinil he shall he further incapiiMe, <lui-inn'
llie saiil SI \fn ye;U's, of hoMill^' ollice, etc.
The Hth sccliou (inip.) makes his election voiil if h.;
ploys any jiei'son as his au'eiit who has heeii fuunil
Liuilty of any con-uj)t ]»ractice, oi' reporteil guilty of any
citrrupt jiractice hy a connnittee of the House of ('oni-
iiiuii>, 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<l prohilfited acts, in ivtVivucc
to elections, or any of such otfences, as deliiie'l K\- Act of
the Parliament of Canada."
Under section 2o of the IJouiinion Act of Isj:], cai). 2S
when any cliai'ge is niaile in an election petition of any
cori'upt i)ractice having" been coiuniitted at tlie election to
which the petition refers, tlie Jmlge shall, in addition to
the cei'titicate (required In- the 10th sec), and at the suup.
time repoi't in wiiting to the Speaker as follows:
{(i) Whether any corrupt practice has oi' has imt Imi^h
proved to have been connnitted liy, or with the know-
ledge and eon.sent of, any candidate at such election-.
stating the muue of such candidate ami the natuiv of such
corrupt practice.
(6) The names of any |iersons who liaxe he(/ii pi(n(Ml
at the trial to havi- been guilty of any corru})t practice
(c) Whether corrupt i)ractices have, or whetlifi' thrii' i-
reason to believe that corru]tt practices have I'XteHsivcK-
prevailed at the election to which the petition relates.
These provisions are similar to those contained in tlic
Imperial Act.
Taking the whole (»f that Act, it is xavy a}>[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<li<late. or
to keep Lack anv elector from voting: for anv other can-
(lidate ; nor shall he open ami support, or cause to l)e
opened and supported at his costs ami charges, any houso
of public entertainment for the acconanodation uf the
electors ; and if any representative returne<l to the Ifcjuse
of Conuuons is proved guilty, hefoi-e the propui' trilmnal,
(if using any of the aliove means to procuiv his election,
liis election shall be thereby declareil void, and he shall
lie incajiable of being a candidate, (jr being elected oi'
returned during that Parliament.
The Cornxpt Pj'actices Act of iMio, passed liy tlie
I'rnvince of Canada, defines bribei'v in the same way a-
tlie English Act i if l^'i-i-. and in the same way declarer
the offence a nnsdriiicanor, fur which the parties may bu
pimished, lioth the giver and receiver of tlie bribe. rn<ler
the Oth section of the English Act. it is pi'o\-ideil that if a
person claims to be [ilaced on the list of votei's wIkj ha-
Ih'cu convicted of liribeiT oi' undue inlhience at an elec-
tion, or a judgment recovei'e(l against him foi' any penal
^uin I'ecoveralile in respect of any of the oti'ence> of
hribery, treating or undtie inlluenee, then the Ri'\'i>inL;
barrister sliall erase the name of such ]icr<on from tlif
list of voters ; or if he claims to have his name inseite
nil the list, he shall disallow such claim: and the nam -
I if such persons so expunged fi'om the list ul voters, or
refused to lie ])laced theivon, shall lie insertetl in a list ol
iKTsons dis(iualitied foi' bi'ibciy. treating or mulue in-
tluence, which shall be apjiended ti.i and [)ub]isli(Ml will,
the list of voters.
The ^^(ith section, already referred to, applies to tiie
cajididate, and declares him incapable of being elected or
.fitting in Parliament, when he shall be declared guilty liy
an Election Committee.
The.Srd section of the Pr(jvincial Statute of LSOO makes
the hiring of vehicles to convey electors to tlu.' polls, (jr
paying the expenses of electors in coming to the jtolls
^l!i
m^i
ff
1
•'■'■■■ '}JS.; lit
G04
DOMINION ELECTIONS.
[A.n.
illegal acts, and makes the person ofiendino- liaM(_' to a
penalty o\'. 8'"}<* for each otience, and costs of suit ; jiinl
any elector who shall hire his horse to any candidate, or
the agent of snch candiilate, for the purpose of couvcyinf
electors to or from the polls, shall, ipso farfo, dc ,\\^.
i|Ualiried from voting at such election, and shall also for-
feit •'5o() to any pei'son who shall sue for the same.
This .section, and the iNth section of the Dominion Act.
cap. 27, of l>S7-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'<l were
voitl, and even after deijiicting' tliein, had lie still a iiia-
ioritv in his favor, the ivsult was the same." Sim- Mav's
Pari. Prac. 7th Kd. .")(i; Simeon, Kid: 2 Doiiu'. 404, ii.
This was intended not so nnieli as a penalty, as to
st'cui'e to constituents a free and incorrujjt choice, seeint;'
that a sinj^de pm'chased vf)te, hi'oun-ht home to the caiuli-
date, miiL;ht Avell throw doiiltt on his whole majority.
It is sai<l an elector who has administered hribes is not
disf(ualifie(l at connnon law from votini,' aftei'wards at
that or any other election : Bushhy 114, ami cases there
cite<l.
The nnanthorized brihes of third persons, who are not
a^'ents of the candidate, do not attect his return, thonj^h
Lfiven in his interest, unless the majority depends on votes
so ohtained, or urdess such bribes occasion u'eneral cor-
ruption: Bushby, 121.
It .seems a stran'o'e state of the law that the pei'son \\-]\o
bribes may be i idicted f(jr a ci-iuie and punished in that
way, yet his vote may stand L'ood, whilst the ]>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 C. P.
147), seems to me peculiarly a[»[)licable. He says : "The
order in this case to strike out the clauses in the petition
which were objecte<] to niu.st therefore lie sustained, if it
lie sustained, upon .showing that leaving those clauses
H
s
i!
^^
If-
GOO
DOMINION ELECTIONS.
[a.d.
in the petition could not have any efi'ectual einl in tho
disposal of the prayer, thereof, M'hatover iiuyht he tin-
chai-acter of the evidence which was produced hefoic tlu/
Judge at the ti'ial. The true (|Uestion, as it aj-pear^ to
nie, u])on this occasion, is whether in any reasoiiahly cnn-
ceivahle state of the evidence a case min'ht he made out.
upon the trial of this })etition hefoie the Judnt.' in tlir
regulai' and ordinary way, which would make it the dutv
of the Judge to grant the prayei' of the petition."
We do not feel warranteil, in this stage i^f tlic prociM-il-
ings, in striking out that portion of the fourth pai'agrai>!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<lent to such elections, shall, as pi'ovided hy the British
North America Act of 18(57, continue to apply respi'C-
tively to elections of niendiers to serve in the House of
Commons f(jr the Provinces of Ontario, (^Hieljec, Nova
Scotia and New Brunswick, suhject to exceptions and
provisions thereafter made.
By sec. 4, sulij'.'ct to the provisions thereinafter madi\
the qualiiication of '-n/' /'.s at elections in tlie Province nf
Ontario, for menihers of the House of Commons, slmll br
that est(iMi><1ii'<l hy the laws in force in that Province on
23rd January, LSGD, as the (jiuillricdtlon of rotcr-H at elec-
tions of iiu')id)i;rx of the Lcgtslntire Asxcmhly ; an<l the
voters' lists to Ije usei.l at the election of memViers of the
Hou.se of Commons shall he the same as if such elections
were of members of the Leoislative Assemi )ly, on the hasis
of the (qualification aforesaid ; and the polling sulxlivisiuns
or wards shall he the same as if such elections were for
niemliers of the Letiislative Asseinlily ; and the returning
officer shall provide a polling-place for each suhdivision
i ''
1S74.]
XORTH VICTORIA.
607
or ward in the iiKJst central or convenient place for such
elections.
By sec. '), the oath or affirmation to he retniireil of
voters in tlie said Province shall he that prescrihed hy
the ;')4th section of cap. of the Consolidated Statutes of
Cana<la, and n<j other, except in Ali;'onia and Muskoka, as
thiTeafter provided.
I'mler sec. 41 of the British North America Act, all
iaws in force in the several Provinces at the time (jf the
union relative to the voters at electiijns of memlirr^ of
tlie Legislative Assembly, the oaths to he taken hy voters,
the ))ioceedings at elections, etc., ivspectively, a])ply to
(■lections of members to serve in the House of Conniions.
The (|ualiHcation of voters in Ontario referred to hy see.
k above cited, is regulated by Pi'ox'incial -Statute, -i'l Vic.,
cap. 21. By sec. ■') of that Act, the following persons, and
111) othei' persons, b^ing of the full age of twenty-one years,
and sulijects of Her Majesty by liiith or naturalization,
and not licing ilisi|ualilie(l under the pi'ecevling sections
iL', •">. 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, an<l b(_'ing cniei'dl on
the then last revise'l a.s.sessment I'oll foi' any city, town,
villau'i'. or township, as the owner, tenant, or oceujiant of
>uc]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 alrea<ly expi'essed in the ohjeetion to the .■)th jiara-
^laph of tlie petition, were inserted on the lists handed to
the ilepnty returning' otHcer, their votes foi' respondent
would he had, thon<j;h the names were on the lists handed
to the deputy returning;' otKeer, for the reasons already
^iven. And if persons who Were in othei- res[(ects properly
entitled t(j vote, and whose names wei'e on the last revised
and certified list of voters accordinL^ to the provision of
the statute, teiulei'ed their votes tor petitioner, it may he
contended with n'reat force that they are entitled to hax'e
their V(-)tes now recorded for the pt'titioner. The mistake
in copying their names on tlu; list for the particulai' >uli-
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
<luly certified according to the statute, wouhl he no ground
for setting aside the election, unless some injury resulted
from the omission, as if some electors were deprived of
their votes, or the result of the election in some way was
influenced hy the mistake.
As to the 12th ])ai'agraph, tlu,' ohservation just made
will apply to it. These ohjections to what may leally he
considered as omitting the doing of matters as to which
the statute is considered as directory, have never heen
held of sulHcient inip)ortance to avoid an eleetion. unless it
can he shown that some inju.stice has Iieen done hy the
■ Ilirinjr teams to (.oiivey voters to <jt from the poll was subsequently Jeelareil to
llf a eorruj)t practice hy the Dnmiiiioii Klections Act, 1574 (:<" \ic,, c. i'l, ss. 90 and 95.
See also 1 vu)ii/ v. Hiiiilh, i Sup. Ct. Can. 404.
I'^»
:1
!rf^J|,
»ilO
DOMINION ELECTIONS.
[A.n.
oinission — tliat voters wlio wtTeeiititlt'"! to voto Imvehfen
• k'piivcd of tlu'ir rij^hts, ami that if what the statuti'
re(|uii'i'il had rcully liuen doni', a iliffcrciil result would
have followed. In the ahsence of this heint,' shown, thest-
ohjectiniis would nut have aiiy wei'^ht ; and this para-
graph was <,d\i'n up on tlu- ari^uinent.
The I'esult is that all llie para'.^n-aj)hs in tin- petitiun
stand except the 12th : that all the preliminary ohjections
an- ovei-ruled except the 1st and the Nth, and if it i^
->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{.\<i(ii:, C — I liave entertained some doulit whetliir
tlif voters' lists under thi' I'rovincial Statute, '--rl Vic., cap'
21, ai'e not Conclusive, so far as the property ([Ualiticatioii
of \'oters is eoncern<'<[, though I confess I feel the foicc (if
the icnsoniuLj 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 a<hnitted to vote unless his name
apjiears on the la>r 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<lministered to a voter hy the deputy return-
iuL'; oilicer. This oath is in proof {I nter alia) of property
(ptalitication in the real estate in respect of which the
votei's name a[)pears on the Voters' list; also as to his
heiui,' a British suhji-ct ; as to his heinLC of ii<^e ; and that
he has not\oted before at the election, and has not re-
ceived or been pr'omised anything to induce him to vote,
IH74.]
NOItTII VKTolUA.
iill
An oath boiu<,' iv<inii'('il us to tlic proix-rtv (|ualifi('ation
of thf votor, is niisino' a question of unaliHcatiou otluT
than tho ([iicstion of i(h'ntity, so that even at tht; ch'ctioi)
itself the Voters' list is not c(»nehisive as to tlie rii,'ht of a
person who.su name is upon it, to vote : and if Jiot coiichi-
sive there, it is, </ finilori, tliat it would not he eonelusive
u]iiin a scrutiny up(jn the trial of an election pcftition.
I'pon suhsec. 10 alone I should have felt sonu! douht, for
the detininj,' of the (|ualili('ation in sec. 5 was necessary to
tile let^istration of voters, and preparing the lists foi- elec-
tion ; a)»d the provision in sec. ') nuj^dit well he introduced
iit tlu; Act for that purpose only; hut sec. 41 and the
\()ters' oath sliow that thi; voters' lists wei'e not intende(l
to lie conclusive. The voter is rt-iuired to swear that at
til.' final revision and correctioTi of the a.sHessiiient roll
]\r was actually, tiidy, and in <,'ood faith ])Os,sessed to his
own use and henetit as ownei', or t(;nant, of the leal estate
ill rispt'ct of whidi liis name \.- on tlie votei > 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.
}'<if
to
[i
it
»
ir
012
DOMINION KLECTIONS.
NORTH VICTORIA.
[a.d.
Bkkouk Mr. Justi(;e Mouiuson.
Lindsay, 4t/i to lOth Noivinhfr, 1S7/,.
Hector Cameron, PHitioncr, v. James Maclennax,
J/iriiiij of (("uiis — lirihcrii—OffcrK to hrihr — Divmon Court liailiil'^.
Wliere tlu: iiiiioiintM paid for liiriiit; tenuis wcro fair and reasoiialili', siicli
liiriii^ was not hriliery iiiulor tlio Doiiiiiiioii l/'oiitrovcrtuil Elcijtion.s
Act, 1>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 li<! did not know what was iiitiiidcd.
Neither II. nor I', were examined :
//'/(/, on the evidence, there was no actual oiler to bribe.
Ob>ervations 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<l<,'.
nient.
MoUHISON, .).— I (piile coneui' in tlie observations iiiaile
by the petitioner, iji elosinj;- his arj^unient, that from the
evidence througliout tliere is not the slit,ditest suspicinii
of an imputation against the purity of the respondents
dealinos in or about the election, or that the sliL,ditfst
suspicion exists that he did not honestly do his utmost
to avoid any act and anything illegal or contrary to tliu
[A.D.
1,S74.]
NORTH VICTOIUA.
G13
:nn.vs,
nililfx.
i
alilc, such
/Mfi^H
Klri'tiim.s
«■
mj; ti'ams,
^1
cm ti) ;,'iv('
J
earns, sucli
1
canviis.Hcrs,
\ilcl stay at
iM 1)1' spi'iit
IS iiiti mil il.
caiivasHing
olicl- ami
\Uvv
iiniiiiirv
llu' ju'l.LT-
ons iiiu'li'
iT'iiii tlif
siisi»icion
slightest
is Utllinst
jiry lo tlif
]ii iii(.'i|)l(!S of tlHM'lcMitioii law; while, on tlic other hand,
111' ii[)j)('ai-.s to liave acted with tlie utmost care and cau-
tion, and witli a true dcHin; to avoid and prevent any
iiii|)roj)er act. I may i'ui'ther add that in takin<f into
account that \lw. riding consists of thirteen townships, in
many of which tlie votcsrs are sparse and rosi(h! aj)ait,
iiiid have necessarily in many cases considerable distances
to ^o to th(^ polls, the expendittin^ of money — which
piinci])ally, if not all, was sjxiiit in liirin<f conveyances —
was, in my opinion, very modei'atc^ indeed.
I shall now proceed very In'ieHy to s'.ate the conclusions
I have arrived at on the diai'ifcs of ririlxuy and corrupt
practices. As to the general point raised by tlu^ p(!titioner
with respect to the liirintij of the teams as beinif acori-u])t
]ii!i('tice, iind so avoidinjj; the election, 1 must follow the
ilccision of th(! Klection (Joui't in this and other cases,
wliich has decided, as 1 taki; it, that it is not a coi-ruj)t
]iractice jxr .sv to hire V(diicles, &c.; and I am of o|tinion
that, in this case the amounts paid foi- teams hii-ed wei-e
only fair and leasonable, and that the hirin<; did not in
any case amount to bribeiy.
Ill the ])articular chai'ijes, the firsi I have to considej' is
that of -lames Stewart, who was a mcnnbei* of the r(?spon<U
riit's coiiimittee. It ;ij)|)ear(Ml he expended a sum of money
— not iiioi'e than ^40; $.'J() of whicli lie j^^ot fi'om (Ja|)t.
Siiichiir, th(! at^eiit of ;'espondent. lie accounted foi' tin,'
<'K|ii'nditure in tim hii'inu," of teams (a memorandum of
which he kept at tlu^ time and pi'oduce(l), and in hirini;' a
piisoii to tak(> 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<l a hii-,Li;e jioi'tion of
thr s:>() (..(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<l that while he receiveil the i<l he ilid not
"'i|iiire it, did not spend it, and that he i'etaine(| it for
till' conimittee, and that he did not receive it for any
614
DOMINION ELECTIONS.
[A.D.
improper purpose. Mr. Stewart swore that the amounts
paid for the teams were reasonable, and that he liad luud
work to get teams for the price, as the weather was rouL,di,
and that the amounts paid or credited for the teams liad
nothing to do with the way in which the owners should
vote, and that there was no understanding about it. I
have no reason to doubt the truth of Mr. Stewart's oi' Mr.
Carmichael's statements, and I see no reason for thinkinif
that they were dealing corruptly in the matter.
As to the charge against Alexander Fraser, who swears
that he was neither a member of a committee nor an
agent of the respondent, but that he acted as a mere
supporter, it appears he received $12 from Mr. Stewart
and $12 from Capt. Sinclair, which moneys it is quite
clear he got for the purpose of hiring teams ; and he
swears he engaged five teams. It is alleged against Fraser
that although he got the moneys to pay for teams, that
the persons whose teams he hired were persons indehted
to him. It ap])ears that he was a blacksmith, and that
he had accounts against them, and he told them r-'spec-
tively that he would credit them with the respective
amounts, and that they said it would be all the same as
money. It was suggested that he only hired four teams.
Fi-aser, however, swears that he hired five, and it is nv^fcA
that in obtaining the money, and not paying the parties
money for the teams, is evidence of a corrupt act, or a
corrupt arrangement between the giver of the money ami
Fraser ; in other words, that it was not received by him
for the purpose alleged. Thee was nothing in evidence
to support this. The conduct of Fraser may be open to
observation for engaging the teams of persons who weie
indebted to him ; but I cannot see that this sharp practice
on his part made the giving the money to him, or his
mode of using it, l)ri))ery or a corrupt practice. Fraser
did not appear to be prompted by a corrupt motive, l)ut
his mode of dealing was not straightforward.
As to the charge against Mr. Margach. He was an active
canvasser for the respondent ; he received S24 from the
[X.D.
lounts
1 har<l
rou;4\i,
us liad
should
it it. I
s or Mr.
hinkin;^
swears
i nor an
i a mere
; Stewart
• is quite
, ; and he
nst Fraser
eanis, that
s indehted
and that
ini r^'spec-
respective
\e same as
tour teams,
it is nr|j;e'l
the parties
-)i act, or a
money ami
ved by hiiu
in evidence
be open to
IS who were
arp practice
him, or his
,ice. Fraser
motive, but
Ivas an active
^24 from tlw
1874.]
NORTH VICTORIA.
615
respondent for his own personal expenses ; and it appears
lie made an arrangement w'ith one Hartle to go round
and canvass. Hartle had no team of his own, and Mar-
gach told liim to hire a team, and gave him S20 or S30 to
pay for hiring and personal expen.ses ; and as Margach has
not yet got an account of this money, it wa.-. urged that
this engaging of Hartle was a corrupt ace. I fail to see
it in that light from the evidence adduced.
Then as to Hartle's dealings with Thomas Leary. From
the latter's testimony it appears that, according to his
own statement. Peck and Hartle were desirous that he
should stay at home during the election ; that Hartle
said to Leary he thought he could got $18 or $20 from
Peck if he did so. hesLvy stated that he expected it was
to spend in his bar; and that having ascertained imme-
diately after the conversation that the petitioner would
be a candidate, he determined not to stay at home, and he
voted for the petitionei'. Hartle was not called ; Peck
was, but was not examined in relation to the matter. No
(luubt an offer to bribe is as bad as an actual payment;
and if the case made out is that of an offer to bribe, as
said by Martin, B. in the Cltdteiihain ca.se (1 O'M. & H.'OG),
'' the evidence required should be stronger than in respect
to l)ribery itself ; it ought to be made out beyond all
dciul)t ; because wdien two people are talking of a thing
wliich is not carried out, it may be they honestly give
theii' evidence, but one person may liave understood what
was said bv another ditferentlv from wdiat he intended."
Here we have only Leary 's evidence, and he does not
prove an actual offer to l)ribe, but merely that Hartle
.said he thought ho nujiht <'et S18 or S2() from Peck if he
would stay at home. Leary did not expect to get the
money even if Peck assented, but that the money would
be spent at his tavern. Leary .showed in his evidence
tliat he clearly did not understand what was intended.
I do not think that I should be warranted upon such
testimony to hold that there was an actual offer to bribe,
h
' ' II
?! ;..
IH
■
r
]
i:
mm ■■■£:
't^
\
r' •
' ■ !
1
^ ■' ,.;.
I
1
Um ^^^^^^kB
1
61G
DOMINION ELECTIONS.
[a,d.
and particularly without Peck and Hartle being examiued
on the subject.
With reference to the McGillivrays' case. It is evident
that the McGillivrays were in the hands of the bailiti'tVoiii
time to time, and very probably they supposed McSwain
had the Taylor execution when he called with Boadwuy
and asked how the McGillivrays intended voting, and find-
ing that McSwain and his companion were canvassin<>' 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, <luly qualified to
vote at the election, not from any intei'est ac(piired by
virtue of a champertous bargain. It may be doubted
whether a proceeding of this kind is one to which the
ordinary rules relating to champerty can apply.
One of the latest cases 1 have seen on the sul)ject is
Ifilton V. Woods, (L. R. 4 E(i. 482). There the plaintitl'
was not aware that he was the owuei- of certain coal
mines until a Mr. Wright informed him of it. An engage-
ment was finally made between him and Wright, that in
consideration that he would guarantee the plaintilf against
any costs, Wright .should have a portion of the value of
tlie property. It was contended on the argument that
the bill mu.st be dismi.s.sed on the ground that the agree-
ment entered into betw^een the plaintifi and Mr. Wiight
Ei '
'By- ' %
622
DOMLVfON ELECTIONS.
[a.d.
!;
w
■ i *
amounted to chanipei-ty and maintenance, and was nn
illc^'al contract. Sir R. Malin.s, V. C, in {,'ivin^f judj^'nient,
said: "I have carefully examined all the authorities which
were referred to in support of tlie argument (as to dismiss-
in'^ the hill), and the}' clearly establish that wherever the
right of the plaintiff in respect of which he sues is derived
under a title founded on champerty or maintenance, his
.suit will on that account necessarily fail. But no authority
was cited, nor have I met with any, which goes the length
of deciding that when a plaintiff has an original and goml
title to property, he becomes disqualified to sue for it l)y
having entered into an improper bargain with his solicitor
as to the mode of renumei-ating him for his professional
.services in the .suit or otherwi.se. ... If Mr. Wrjirht
had been the plaintiff suing by vii'tue of a title derived
under that contract, it would have been my duty to dis-
miss the bill. . . In this case the plaintiff conies
forward to assert his title to property which was vested
in him long before he entered into the improper 1)argain
with Mr. Wright, and I cannot therefore hold him dis-
qualified to sustain the suit." He refu.sed to dismiss the
bill.
Here the petitioner's right is not acquired by virtue of
any bargain with the Liberal-Conservative Association;
and by analogy to the above case, even if the alleged
bargain were champertous, which I am by no means in-
clined to think it was, that would be no reason for staying
the proceedings on this petition. See also Carr v. TiDnia-
hUl ,'t (1.1. (in Q. B. 210).
We do not consider that the objection, as stated, to the
petitioner's right to vote at the election, and his consecjuent
inability to petition, arises under the 71st section of the
Ontario Act, 32 Vic, cap. 21, or a similar provision, sec-
tion 3, in the Corrupt Practices Act of Canada, 23 Vic,
cap. 17, passed in 1860.
It is said that the fact that a third person was to pay
the expenses of the petition, and had in fact paid for the
last petition, was not considered to be any impediment to
m
%-i
1S74.]
NORTH SIMCOE.
023
the hearing: Lymc-Rajis cuxe (1 P. R. D. 37); WoltVr-
stan 44, 14.
As to the last preliminary objection, that tlie petition
was not sij^ned by the petitioner buna fide, it is stated in
Wolt'erstan on Elections, 44, that where fraud was pioven
against the petitioner, the petition was not lieai'<l : ('mitfr-
Iniri/ <'<i»t' (Cliti". .S()l). Such, it is presumed, would also
be the decision in the case of a petition i)rove<l to have
been signed mdhtfide by some person on behalf of the
real petitioners : Sli(j() r^.sv (Fal. & Fitz. ')4(j). But the
fact that a third person was to pay the expenses was not
considered an objection to the hearing: Jji/iiw-Jliyis <'(isi'
(1 P. R. & D. 37). At ])age 14 of the same woik it is
stated that if fraud or other improper intluenci; has been
used in obtaining the subscription of nanu-s to a petition,
such a petition doubtless would not be proceeded with.
The result is, that as to the first preliminary (objection,
that is triable before the Election Judge as a matter of
fact. The .second preliminary objection is disallowed, as
also the fourth, with regard to champerty. As to the
fifth, it is a matter of fact whether he is the ])etitioner or
whcthei' any fraud has been practised on him. The n)ere
fact that it has been agreed between him and others that
he -shall proceed with the petition in his name, and that
they will contribute towards paying the expens(\s, can be
no objection to the petition as we understand the law.
^ II
I*-t
I
p.
l!
p 'W
1
.r I
I
;i
h ^f
]-* '
G24
DOMINION ELECTIONS.
NORTH SIMCOE.
[a. I).
Before Mil -Justice frWYWE.
HAiti;iK, li>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/ ivj<nt — Cdiidii/nti's ejjienili/urf at a foniKr
flection — Ei'uli'ncc,
Befdi'e tlio trial tlie riisponileiit Hcrvcd a notice upon tlu; pititioiicr,
admitting that tin- election must lie avoiiliil on tluj yrouud of hiilicry
by an aj^ciit without his knowlidgc or couHunt. Such aduiissioii was
acted upon at the trial, and the election avoided accordingly,
A candidate, when examined as a witness at an election trial, may ho
asked liis expendituie at former I'l'oviucial and Doniini(jn elections at
w liich he wa^ a candidate,
Tilt' |i('titi(»n contained tlu' usual ('liai'L,n'.s of (-(jiiuiit
pi'actk'cs. Tliu procetM lings bot'oro the Election Court uii'
set out on )). f)17.
il//'. /). McCurtlni, Q.C., <i ml Mr. Boi/x, for petitioner.
Mr. Bdhitne and Mr. W. Luaat for respondent.
Before the petition Civnie on for trial, the respondent
served a notice upon the petitioner, adiiiittinii- that the
election nmst he avoided on tlu; g'l'oinid of hriheiy l>y 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'<f'<.
■■<0)li
•( know-
Tlic Imperial and Dominion Election Laws, iis to coiiupt practices and
their conseipiencc:', compiired and considered.
It is a ;_'eneral rule tliat no man can be treated as a crimiii.d, or nudct in
jienal actions for ollcnces wliicli lu' did not connive at ; and it is settled
law tiiat enactments are not to he ^'iven a penal ell'ect tieyoiid the
necessary impoit of tiie terms used, lint the Election Laws are not to
he so liiTiitedly con.strued hy an Kh ctioiT. Indian ; and for civil purposes
they are more conipreliensive, and reach a candidate wliose ai^ents
Ijrilie in liis hehalT, with oi' without his authority. Wliei'e the dis-
qiialilication of a cancTTdate is soTTj^dit they ari' to l)e construed as any
other penal statutes, and the candidate must be iirovid guilty by the
same kind of evidence as applies to penal proceedings.
Tlie avoidance of an election for an act of bribery committed liy the agent
of a candidate is a civil proceeding, and is not ])rought al)out to punish
tl»e candidate, but to secure an unbiassed election.
The general practice wldch prevails herecjf persons drinking in a friendly
way when they meet, wouM reipiire strDUg eviilence of a pi'ofuse ex-
penditure of money in drinking, to induce a .ludgc to say it was cor-
ruptly done, so as to make it bribery or treating at common law.
Meetings for ])romoting the respondent's eh.'ction were lield at public
houses with the object of inducing the owners to support the respond-
ent at the election, and because the wcatiicr M'as C(dd and meetings
could not be held in the open air. No evidence was given by the peti-
tinner that e(|ually convenient places, and such as were more proper
to I ised for that purpose, could be obtained :
//'/'/, iliat as the respondent and iiis friends liad a legitimate motive for
hohliiig their meetinfirs at such houses, although their other motives
might not be legitimate, no corrupt act had been committed.
626
DOMINION ELECTIONS.
[A.D.
!JJ|||fPll
»>■'(
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<lent, who gave it without
any instructions or warnings to such connnittee-men n^ appli..-d 'ht it.
A great deal of this money was spent in corrupt purposes, in briljerv
and in treating to the extent of avoiding tlie election. The respondent
in his evidence stated that he did not, directly or indirectly, autliori/.e
or approve of or sanction the expenditure of any money for briljery
or a promise of any for such purpose, ror did he sanctio.i or autliori/e
the keeping o: any open house, and that he was not aware that any
open houses had l)een kept, and that he always impressed on everyho.ly
that they must not violate tlie law. There was no affirmative evidence
to show tliat the money which the respondent knew had been raised
for tlie purposes of the electioi was so large that as a reasonable m;in
he must have known that some portion of it would be used for c nipt
purposes.
Ifi'lif, that looking ai t!ie whole civse, and at this branch of it, as a pi-nal
proi'cediiig, the respondent should not be held personally responsilile
for tlie corrupt practices of his a'jents.
The petitioner having been warrant-d in continuing the inquiry is to
the personal complicity of tlie respondent with tiie illegal acts of his
agents, was held entitled to the full costs of the trial.
The petition contained the Uiual charges of conupt
practices.
Mr. Bdhunc and Mr. Brittoti for petitioner.
Mr. R. T. Wallxcm for respondent.
The election tocjk place on tlie 22nd and 29th January,
1(S74. The total vote was 1,(340, of wliich the respondtiit
received HJil and Mr. John Carruthers 801.
The facts and the arguments of counsel appear in tht-
judgment of the court.
Ricir.MiDS, C. J. — As this case is tiied andtr the pio-
visions of the Dominion Acts of 187''}, cap. 27 and 28, i*^
must he borne in mind that these statutes are not .so broad,
so far as relates to acts which will avoid an election, nor
as tn the consequences to the candidate of complicity in
what may be considered corrupt piuctices, as the English
Acts, the statutes of Ontai'io, and the Dominon Election>
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<l,
Iction, nor
iiplicity in
lie En'ili-^li
K,lection>
lie Corru\)t
lintely the
Lence. It
liie<l cniilty
1874.]
KINGSTON.
627
1. Every person who shall directly or indirectly, l»y
hiinseli' or by any other person on his hehalf, give, lend,
or agree to give or lend, or shall offer, promise, or promise
to procure, or to endeavor to procure, any money or valu-
alilo consideration to or for anj' voter, or to or for any
person on behalf of any voter, or to or for any other
pei'son, in order to induce any voter to vote, to refrain
from voting, or shall corruptly do anj-- such act as afore-
said on account of such voter having voted or refrained
from voting at any election. 2. Procuring or agreeing to
procure a place, office or employment foi' a voter or any
other per.son. .*J. Making any gift, loan, off^r, pr ire-
iiicnt or agreement as aforesaid to or for any pei i to
induce such person to procure or endeavor to procuie the
return of any person to serve in Parliament, or the vote
of any voter at any election. 4. Any person who shall
ill consequence of any such gift, loan, otl'er, &c., procure
or engage, promise, or endea\oi' to procure the return
of any person to .serve in Parliament, or the vote of any
voter at anj^ election. 5. Any person who shall advance,
01' pay, or cause to be paid, any money to or for the use
of unv other i)erson, with intent that such money or anv
j)art thereof shall be e.xpended In l)ribing at any election,
or who shall knowingly pay or cause to be paid any
money to any person in discharge or repayment of any
money wholly or in part expended in bribery at any
election. The section then declares that any person so
otFeiiding shall be guilty of a misdemeanor, and liable to
forfeit £100 to any person who shall sue for the same.
Section 3 makes the voters who receive mone}', or
make agreements to receive money, gifts, Szc., foi" voting
or refraining to vote, and for receiving nioii'^y after an
election for voting or refraining from voting, guilty of
bribery. These persons are declared guilty of a misde-
meanor, and liable to forfeit £10 to any (jiie suing for the
same. The 4th section detines coi-rupt treating; and the
oth undue iniluence.
41
62cS
DOMINION ELECTIONS.
[a.d.
hi
\'
The .SOth section declares, " If any candidate at any
election for any county, city or borouo-h, shall be ileclared
by any eh.'ction coimiuttee guilty, bi/ himsc/f ov his a^fonts,
of hrihcri/, trrniinr/ or inulio', influence, at such election,
such carididate shall be incapable of being elected or
sitting in Parliament for such county, city or borouL;li,
during the Parliament then in existence."
The English Parliamentary Elections Act of bsiis,
defines cori'upt practices to mean bribery, treating ami
undue influence, or any of such offences as defiiii'(l hy
Act of Parliament or recognized by the conunou law of
Parliament. By section II, subsection 12, at the' con-
clusion of the trial, the Judge shall determine whetluT
the member whose return or election is complained of, or
any and what other person was duly returned or elect(.'d.
01" whether the election was void. By subsection 14,
when there is a charge in the petition of any coi'rupt
pi'actice having been committed at the election to which
the petition refers, the Judge shall, in addition to such
certiiicate, and at the same time, report in writing to the
Speaker whether any corrupt practice has or has not Ijeeii
proved to have been committed by or with the know-
ledge and consent of any candidate at such election, anil
the nature of such corrupt practice. Sec. 15 provides as
to the effect of the Judge's report as to corrupt practices
having extensively prevailed, having the same effect as the
re])oit of a committee as to issuing a commission of in([uiry.
Under the 43rd section of the Act, when it is fouml l>y
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 1<S, declares :
" No candidate sliall, directly or indii-ectly, eii.jiloy any
means of corruption by giving any sum of money, otHei',
place, &e.,.or any promise of tlie same, nor shall he, either
hy himself or his authorized agent for that purjK)se,
tlin-aten any elector with hjsing any office, salary, in-
ciiiiie oi' advantage, with intent to corrujit or Ijrihe any
rlcrtoi' to vote for such candidate, or to keep hack any
elector fi'om voting for any other candidate. Nor shall
he ojten and suj)port, (n- cause to be opened and sup-
]H)i'ted, at his costs and charges, any house of public en-
tei'tainnient for the acconnnolation of the electoi's. And
if any representative returned to the House of C.)nuiions
is ])roved guilty before the proper tribunal of using any
of the above means to procure his election, his election
shall be thei'cby declared void, and he shall be incapable
(if being a candidate, or being elected or returned during
tliat Parliament."
The ne.Kt statute in the Acts of that session, the " Con-
troverted Elections Acts of 1S73," defines corrupt prac-
tices to mean bi-ibery and undue inthuMice, treating, and
other illegal and prohibited acts in reference to elections,
er any of such ofieuces as deiined by Act of th(! Parlia-
iiiiiiL of Canada. This definition of corrupt practices, it
uill be seen, dirters from that contained in the Imperial
Act, and it also differs slightly from that contained in the
Ontario Act. The general provisions of the Dominion
■statute as to the trial of the ontroverted elections, and the
ivpoft to be nuule by the Judges trying the same, set'm
to have been taken from the Englisli Act, but the 4.'h'd
section of that Act, already (pioted, for tlie punishment
of corrupt practices, is omitted, as well as the 44tli secti(jn
iiiiliosing a ptjnalty for employing a coi-rupt agent, an<l
section 4.") disqualifying persons other than a candidate
II
i
13
1
-JTl
IP
■3
1
m *T
lit
mi.: _
1 f
630
DOMINION ELECTIONS.
La.I).
found guilty of bnl)ery from being elected or sittint,^ in
Parliament, and other dis(iualitication,s as under see. 48.
It may be as well to note here that the 4r)th section of
the English statute refers to the disqualifying j)ersoiis
under the .'^(ith section of the Act of liS,54; as to a niciiiliir
guilty of cori'upt practices other than i^ersonal liriherv,
•\vithiu the 48r(l section of that Act, the report of tho
Judge was to be deemed substituted for the declaration
of an election committee. Now the only Dominion Act
applicable to this case, which declares the punishment of
bribery, is section IS of 30 Vic, cap. 27.
By the common law of Parliament there is no doubt tlu'
respondent is so far cont])romised by the acts of his agents
that his seat must be vacated in conse(|Uence of their
admitted acts, and also by the acts conunitted 1)y them
as shown by the evidence given on the trial.
The further inquiry which was gone into was witli a
view of having the resjtondent declared guilty of employ-
ing, directly or indirectly, means of corruption by giviiin'
money, employment, gratuity, reward, or promise' of the
same, with the intent to corrupt or to bribi' electors to
vote for him, or to keep back electors fi-om voting foi'
any other candidate, or that he opened or su])])ortt'<l, or
caused to be opened oi- supported, at his costs and eliar<j;es,
houses of public entertainment for the acconnnodation of
the electors.
Mr. Betlnuie, who probably has had as large expeiiince
as any counsel at the bar in this province in these election
cases, admitted that he could not ask the Court to dcciile
on the evidence that the respondcii*^ had been guilty, or
had knowledge, of and consented to any distinct net of
individual biibery, but he contended that there had been
an expenditm-e of money to intlu(Mice a class of votes,
viz., keepers of puldic houses, and that this expeinliture
.was with the knowledge and consent of the n'spondent.
The object of holding meetings at public houses was to
influence the votes of the persons who kept these houses,
liilty, or
[t act »)t"
liid lif'ii
It' vi'tes,
l'i\(lituro
Itoiidrnt.
is was to
houses,
1874.]
KINGSTON.
681
ami to induce tlieiu to suppoit the respondent at the
flection. Mr. Noble's evidence shows that SIO a nifht
was paid for tlie nse of a room when S;") wonld liave been
sutHcient ; tliat there was an (!Xi)enditnre of .S4() in treat-
ing, which would brinn- the case within the second ])ranch
of sec. 1(S of the Dominion Act, .')(i Vic.,c. 27. lie referred
to the Tdinivorth case (I O'M. it H. fSG-7-'S) ; Covcitry
cdsr {Ibid 9(S) ; Hdstinijs cdxe (ihiil. 21 iS). The evidence
slmws tliat respondent desired to get the intiuence of tliis
class for him.self, or to prevent liis (opponent netting them.
Then there was no account of the expenditure of the
money in tlie several wards; respondent was bouml to
take care tliat tlie fund was pioperly ajjplied, and it was
iiu;uml)ent on tlie respondent to call Mr. Cami)boll to
show how the money had been expended, as he was his
special agent. He also referred to the Bevxlbu oisi' (1
()M. & H. IS, 21).
Mr. Britton, on the same side, contended that the etlect
of the respondent's evidence was : That money is im-
pro{)erly expeiaded at all elections ; that there was sojue
expended at his election in 1^72 for bribery. He Ihought
iiioie money would be re(]uired for the contest in bs74
than in 1M72. He furnished the money without instruc-
tions as to how it shouhl be used. It is admitted that it
WHS improperly used, therefore the respondent is person-
ally responsible.
Mr. Walkem, for the res))ondent, contended in effect:
Tlijit it was not the duty of the respondent to call Mr.
Campbell. If the respondent had claimeil that there was
no improper expenditure of money, and that his seat
ouL;lit not to be vacated, then he might be asked to show
liy Mr. Campbell the terms on whicli the money luul lieen
placiMl in the hands of persons who used it improperly.
Now, however, the onus of jiroof is changed, the petitioner
ought to show that the respondent has been guilty of acts
wliich art'ect him personally with bribeiy or keeping o})en
liouse. Tiiat has not b"en done, and the Court will not
l)resunie that acts of this sort were done, unless they ai'e
1.
^1
G.32
DOMFNION ELECTIOxN^S.
[A.D.
proved by satisfactory evidence. Tlie respondent's evi-
dence as to wliat lie thou^lit was generally done at elec-
tions, given tVankly and fairly, was not to he construcil
as a<linitting that he knew such tilings were done at this
election, and that he was a consenting party to such acts.
Supposing the whole amount exjx'nded on behalf of re-
spondent !?2,r)00 01- even i?l),()()0, that was not unreason-
able. Besides the regular meetings, two or three in a
night, at which the respondent addressed the people, there 1
were ward meetings in each of the seven wards every i
night ; besides this, canvassers had to be hired, an<l caVis
paid for their use ; all these expenses during a canvass
of four weeks, it might be reasonably expected, would
swallow up the sum mentioned without respondent su^)-
posing any money expended for V)ribery. There were
about 1,000 votes polled in <-lio c-'*^.y. The hiring of the""
rooms at the taverns was absolutely necessary, as none
others could be got, and the fact that innkeepers might
exert themselves for the respondent could not fairly he
considered as bribery. No attempt was made to show-
that respondent was aware, or that the fact was, that
rooms were hired of any persons who were opposed to
respondent, to influence their votes ; on the contrary, he
(respondent) understood that the meetings were held in
(he houses of persons who were his supporters. Besides
this, printed copies of the law were distributed amongst
the committees so that they might not violate it, and
resjxjndent always impressed on everybody that they
must not violr.te the law.
The first question is as to the nature of the evidence
required to ati'ect the personal status of the respondent
so far as to disqualify him from being elected to serve in
this present Parliament. The \n\v, as it exists in England,
is briefly referred to in the last edition of Bushby's
Manual of the Practice of Elections, p. 114. As to the
person bribing, he may be any one who does the prohibited
acts, "directly or indirectly," that is, by any one who
either does them himself or authorizes another to do them
1S74.]
KTN'(!STON'.
(i-.V.l
for him. As this is also the case at common Uiw, it need
jiot be dwelt upon ; tlie next words are " b}' liimselt' or
by any other person on liis belialf," words wliicli will carry
two senses accoixlin^ to the purpose for which they are
construed. When sought to be enforced penally they Mill
mean precisely the same as does the preceding phrase.
It is a general rule that no man can be treated as a
criminal, or mulcted in penal actions, for oft'ences which he
did not connive at; nor docs the statute authorize any in-
fifiction of the lule. The person to be deemed guilty of
brii)ery is s[)oken of tliroughout the sections as doing the
Liuilty act, the aildition that he does it by another on his
behalf need only mean that he does it through one whom
lie has authc ized for that purpose ; and it is settled law,
that enactments are not to be given a penal etiect beyond
the necessary import of the terms used. But in the next
place the words need not be so limitedly construed by an
Election Judge; and for civil purposes they are far moi-e
comprehensive, and reach every one whose agents bribe in
Ids l)ehalf either with or without his authority.
The first question before an Election Judge in such
cases usual Iv is as to the bribery having been effected (so
too it is now enacted that any charge of a coi-rujit practice
may be gone into before proof of agency unless the Judge
otherwise direct). 'Jlie second question is as to the rela-
tion existing between the person effecting it and the can-
didate ; and if it appears that they stand in the relation
of agent and principal in other respects, the candidate
will not escape the result of bi-ibery, the loss of his seat
and the consequent dis(pialitication, merely because he
gave his agent no authority to bribe. This appears at
first sight unjust and a hardship; no doubt it nuist l)e
when a .seat is vacated for ))ribery of which the candidate
was wholly unconscious. Tint the av*oidance of an election
under such circumstances is a purely civil conse<iuence.
It is not brought about in order to punish the candidate,
but to secure an unbiassed election. Were his punishment
the object, of course a guilty knowledge luould have to be
[
;l
ill
pi
fi
3 .It'*- fUJ
634
DOMINION ELECTIONS.
[a.d.
proved (igahist klm, but in that case the penalty would
pr(>l)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<fative."
It. having been admitt^ed that respondent has not been
])t'rsonally guilty of bribery, what evidence is there to
show that bribery took place wdth his knowledge and
consent ?
First, as to ti'(!ating ; that has .ilways bei'u punislialde
at couunon law^ as a species of bribery, tlu; only <liHer-
cnce being that the coi-rupting me(lium was food and
drink, or both. But treating in the sense of ingi'atiati on
fni', to use the ordinary language of the countr}-, as lieing
considered a good fellow) by mere hospitality, or even to
the extent of profusion, it was doubteil if it was struek
at liy the common law: Willes, J., Llrhfldd cn.se (1 (J'M.
k H. 2o). If it was shown that there was an organized
and LTeneral system of treatinii' in all directions on i)ur-
pose to influence voters, that Ikjuscs were thrown f)pen
where people could get drink wdthout paying for it, such
an election would be voi'l at the common law : Bushby,
p. 1:^8.
The general practice which prevails here amongst classes
of })eisons, many of whom are voters, of drinking in a
ml
111 ' ''
jl
«;
■
().'U)
DOMINION f:i,ECT ION'S.
fA.n.
iViendly way wlu-ii tlii-y iiu'i^t, would i('((uir(! ,strf)M<f cvi-
(leiice of a very pi-ot'iisu exponditui-f of monoy in drinkiri"
to iruluce a .Jiid;^'e to say that it was corruptly done, sons
to make it Itrihery or comk; witliiti tli<' iiU'ai)in;L,' ol' "tivat-
in;jf '" as a cori'upt pi'acticc at the conuuon law.
Now, wlien the I'esjioudeut in liis evidtsnce speaks df
cxpendiiin- money in treating l»y liis friends (hu'iiiu- tli^
canvass, and when such expenditui'e might \h) witliin
reasonal)U' hounds, not amounting to hrihery, and he said
ho liad no ap[)rehension they wouhl expend any uioikn- in
bribery, and tlie eviiU-nce does not .show that he had kiiow-
le<lge of and eonsent('il to sueli extravagant ex[)endituiv in
eating and (h'inking as would amount to Ijrihery, 1 do not
feel wai-i'ant('(l in saying that such a corru[)t ])ractico
existed with his knowledge and consent, particulailv as
he closes his evi<lence with the .statement that he did not,
directly or indirectly, authorize or approve of or saiiftinn
the expenditure of any money for bril)ery or a promise (jf
any for such purpose, nor did he sanction or aut]iori/.(j the
keeping of any open liouse, and lie was not aware that
any open houses were kept. I arrive at this conelusi(ju
now with less liesitation in consequence of the iHtlrrent
provisions contained in the Dominion Act of liS74 and the
Ontario statutes, from those contained in the statutes
under which we are now acting. The coriupt practices
intended to be prevented by these statutes are so clearly
defined that no candidate need be involved in <lifficulty
as to expenditures at an election unless he deliberately
determines to violate the law, and the precautions taken
by these statutes to compel a disclosure of money ex-
pende<l on behalf of a candidate will aid in deteriing
improper expenditures of money. While on this suljject,
it may be as well to point out the omission in the Domin-
ion Statute of the provision in the English Act of l.So4,
by which the seat may be avoided by the corrupt acts of
an agent, and the candidate prevented from standing for
that constituency during the then Parliament, when it was
not shown that the candidate authorized the corrupt act,
N74.]
KIX(JSTON.
():{7
iuiil when tlu- ailditional pcrsoiiul (lis(|niiIi(icatlonH, as w-
i'ciiid to in tlu- Doiiiiuion Act of 1n74, would not attacli.
TIr' next (incstittii is wlu'tluT the lioldini; of nu'otinns
at pnl)lic liouscs, when the jji-olialilr t'tlt'ct of doin^ so
would be to makf the iti'o|)rictors use their intluener in
i';i\()r of the resitondcnt, is not hriltery or a eoi rupt act.
The rcsponth-nt in ids evidence said theic were suh-
cniiiiuittees in e\-ery ward. 'J'he houses in whicli they
iiict were small ; as the weather was cold, uieetinus could
nut lie held in the open air, and the tavern-keepers then
made it their harvest, ami as only a few could attend at
each meeting', they were the more numerous, and as hoth
parties were eipially active and held nu etin<;'s, it was im-
portant to have the last woi'd, aiul so the mi'etinj^'s were
more numerous, and in that way the expenditure was
Lireat. In another part of his evidence hesaiil thecallin;^-
(if tiieetine's at puMic houses was to have peo])le to talk
to. Iini-kee])ers are of coui'se a power in their localities ;
iiiiil that may have heen a )'eas(jn amono'st others f(jr hohl-
iiiL;' meetinufs there, and another to prevent the other side
fidiii ,oettin;j,' them. He was not aware of any meetin<fs
of his friends at any iini where the party was not a suj)-
porter (jf his: "Of course, when you ^^et a .supporter you
want to keep liim." Aeain, he said, " I did not consider
holding meetings in the taverns and [laying for the use
of the rooms would he a vi(jlation of the law." — ^^
There is no doubt that respondent and his friends ex-
pected to reap an advantage by holding meetings at
public houses. The very .strong remai'ks by the Juilges
in the cases referred to by Mr. Bethune as to the impro-
priety and dano-er of holdiuLT meetings of candidates and
their committees in inns are a[)propriate, and ought, and
will no doubt hereafter be considered, and have their in-
tiiience with candidates at future elections. In the ai'gu-
inent it w^as urged that at the inclement .sea.son of the
year when the election took place it was exceedingly in-
C(jnvenient, if not impossible, to get rooms in which to
hold meetings and conunittec meetings unles.s at inns, and
ir
¥
m
1*1'
iti
--'!4- ■
(i:is
DOMLVrON ELECTIONS.
[a.d.
con,s(;([ueiitly that it was a necessity tliat this shoulil liu
<hjiiL', and that hotli piirtit's yioichMl to this lU'cessity, an<l
hnld tliL! iiiL'(;tiii,i;s and coiiiiiiittin; nuHitin^jjs at inns.
It seeniH to inc that this viuw was reasonahlf, and tluU
the fact of th(! opponents of the respond(!iit h(;ldiii'f
niei'tin;^rs jit inns was a circu instance to show that it, was
necessary that this sliould Im! done at that season id' tho
year. Not tliat the respon(h;nt, because his op[M)ii(nt.s
dill an e(iuivoeal ov ilh'Ljai act, was at lil)erty to dn a
siiuihir act, hut that they all thou;j;ht, under the ciicmn-
stanees, that it w as the ri^dit an<l proper thing to he done.
As no evidence was given on the trial to sh(nv tliat e(iually
convenient ])laces, and such as wens nu)n\ proper to he
u.sed t'oi' that pur])ose, could then he obtained, I think I
ought to hold that r(,'spundent and his friends had a legiti-
mate motive for holding their meetings in these houses,
although they might have had other motives wiiicli arc
not ,so legitimate.
I find this language used by Baron Bramwell (whose
" brilliant common sense " is tlie admiration of tlie' English
Bar) in the Wiiid.sor Elect Uni case (:U L. T. N, S. 1 :{.•)}:
" The respondent has declined to answer "whethei-, when
he made certain uifts of coals and food to a number of
poor cottagers, on occasion, of a flood, there being \oters
and non-voters amongst them, ho had in view the election
for the borougli of Windsor." The learned Baron pro-
ceeds : " Why, it is certain that it must have been present
to his mind ; a man cannot suppose a thing of this soit
is a matter of indifference, that it operates in no way at
all ; he cannot suppose tliat it operates unfavorably to
him ; thei'efore he must suppose that in some way or
other it will to a certain extent operate favorably. But
there is no harm in it if a man has a legitimate motive
for doing a thino', althouu'li in addition to that he lias a
motive which, if it stood alone, would be an illegitimate one.
He is not to refrain from doing that which he might
legitimately have done on account of the existence of this
motive, which by itself would have been an illegitimate
1S74.]
KIN'OSTON.
iW.)
iiiotivt'." In tln' vi(;\v I take ol" this (|iU'sti()H I do not
think 1 can say that this was a coirupt act eonnnittnl
with the knowh'(ljj;(i and consent of tlio i'ospon<h'nt. -—.^.^
It ch'aily apjx'ai's that thf icsponihTit liiinsflf con- >
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 e<iual in the wlioic to ^^.'J.nOO was raised for
tliut jiurposi', th(^ iarn'cr jiart of winch passed into the
hands of Mi\ Alexander ('anijihell, a warm jiei'sonaJ and
])()litical friend of the resjiondent ; that no consultation
todk plac(! Itetween them as to liow or in what way the
iiidiiev should he us(m1, or what, if aji}', ])i'ecautions were
to he taken to prevent an ille^'al or coii'Upt use of this larj^^e
>iiiii 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 respou<lent mailc
Pai'doe his au;cnt for the election to almost tlie fullest
e.Ktent to which ay'ency can he j^'iveu. A perscjn provL-fl
to he an ai;'ent to this extent is not onh' liimself an ai;fiit
of the camlidate, hut also makes those a^^euts wliom lie
em|)loys. The extent to which a person is an a^iiir
<lirtei's according- to what he is shown to have <lone. An
a^-ent employed so extensively as is shown here, makes
the candidate respon-'jihle not only for his own acts, hut
also for the acts of those whom he, the agent, ili(l so
employ, even though they arc persons whom the cauilidate
might not know or he Ijroiight in ])ersonal contact with."
He then refers to the case of a sheriti' answerable fur tliu
acts of his deputy as somewdiat analogou.s.
In dealing with the evidence affecting the pi-isoiial
guilt of the respondent, he said : " In paying money to a
]iei'son not declared to be his election agent, the respond-
ent was in most direct terms acting contrary to 2o Vic,
cap. 29, sec. -4. P>esides I cannot in the slightest degree
doubt that if a fund is placed in the han<ls of an agent
by a candidate, and if it is sho^\'n that the agent expendeil
! it, in corrui)t practices afterwards, it is evidence tendini,'
to sliow that the candidate paying into those hands the
money that was spent in corrupt practices was hituseif
j intending that it should be ^*pent in corrupt practices.
Then it seems to be a question to what extent it was
shown, if the money was bestowed fen- corrupt ])ractices,
winfflHnwi' wjM "-WJi'.i.. uiw
1.S74.1
KINCiSTOX.
()4!
[A.D.
I. in a
I. IM.
i)l\ilt;nt
of 1)110
liy any
fl\ thfit
V it WfiH
asc was
;an conio
lit uiatle
II |iVOVftl
an a;4i'nt
vlidin Vie
an a^i-nT
louf. An
ive, makes
acts, but
t, <liil ^^o
can<litlate
act witli.'
h\ii fur the
that the candidate who ji^ave the money was aware of it ;
and in that case also the extent to whicli it was sliown
tliai there were corrupt practices would he very inatcriaL
I tliink if it were sliown that theri' liad hccii. as in many
otlier 1)orouo;hs in formci- times and it may hu now, l'X-
tt-nsive V)rihery, a lur^^c number of j^eople bribed, corrupt
chilis paid money, and .so forth, it would be a very sei-ioiis
(question wliether tin.* candidate in putting money into the
hands (^f his agents was not personally cognizant of it."
There was no afhrmative evidence given to show thai
{][!• money which tlie I'espondent knew had lieen raised
for the purposes of the election was so large that as a
reasonable man he nuist hav<' known tliat it, or .some con-
.siderable portion of it, would be used forcoriaipt practices;
and that he could not suppose that the fair and reason-
able amounts to be paid for i-ent of rooms foi' canvassers,
ami the expenses in canvassing, such as treating persons
wliom tliey met, and ])rol)ably the [>ayment 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<lidato might well presume that the
legitimate ex))onses attending his election in a verv close
and active canva.ss, foquiring that each elector shouM iu-
freqiiently seen to a.scortain if he contiiuiod in the same
mind as formerly, would lie veiy lai'ge. In the absence
then of anything like conclusive evidence on this point
Against the respondent, 1 have not been able to make iii»
my mind that I ought to doci<lo against him.
The fact that the respondent might have relied on .Mr.
Canipl)ell, as a lawyer and a good Inisiiio.ss man, not pei-
mitting any expenditure that was improper, may pei'h.ijts
be something in his favor. Ihit the result shows, as t'af
as we can .see, that Mr. Campbell did not take? any stcp>
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 <f\vvn f'urtlier evidence t(j liave repelled some
of the stxgi^estions in resjiondent's fnxor, if sneli sno-o-^.,s- \
tiiins were not rersoiuilile ones, T sliould feel bound to /
(Ifcide ajj,"ainst the I'espondent ; liut hxikin^' at the whole /
case, I do not think I ouu;ht t(j do so.
If it is found from expei'ience that the provisions con-
tained in the jjre.sent laws, now in force in the Dominion
and i': Ontario, do not etrectuaiiy put an end to coiru{)t
p!.ictices at elections, and that in order t(j do s(j it will he
nece.s.sary to hrini; candidates within the highly penal
pi'ovisions of declaring them, when they violate the law,
inca))ahle of l)ein<^ electe<l oi- lioldinn' oflice for several
years. Election Judges will proliahly find themselves com-
pelled to take the same Itroad view of the evidence to
sustain these highly penal cliarges that experience com-
jielkd committees of the Kou.se oi' Commons to take as to
tlio evidence nece-sai'v to set aside an election.
T think the jtetitioner was well warrante<l in continuing
tlie inriuiry as to tin; jiei'sonal ccjinplicity of tlie ivspond-
t'lit with the illegal acts done l>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'etuniin<r
otHcer as required by law.
The respondent presented preliminary objections to the
petition, which are sufficiently set out in the judo-nient.
A summons having been taken out to strike out the
preliminary objections,
The Respondent in person showed cause.
Mr. Betkiine for petitioner.
Richards, C. J., delivered the judgment of the Court:
In disposing of the matters brought before us in rela-
tion to the North Victoria case (ante p. 584), we expre.ssed
our opinion that the question of want of property (|uali-
* The Judjfes were the same as in the North Victoria case (ante p. 584.)
^h
■ I
i
1874.]
CARDWELL,
G45
pialiti-
lay oi
nor at
Ituruing
s'*^
|e Court :
in rela-
[xpressee
tY quali-
fication in a candidate at the elections for members of the
House of Commons, held before the passing of the Act of
the last session of the Dominion Parliament, can still be
raised in pending cases, and tin refore the question of the
property ([ualitication of the respondent is now a iimtter
which is to be decided under the petition.
As to the objection taken, that the petitionei-s allege
that the respondent was not sei/.cil of himls a in I tene-
ments instead of lands (*/• tenements, we do not tliink the
respondent was in any way misleii or ])re)ndice(l tliereliy,
uii'l in this respect the thii-d clause of the ]ietition may be
amended, if the petitioners or tlieir counsel wish it,
though it hardly seems necessary.
Then as to the ol)jection to tlie i'ourth paragiaph of the
petition, that it is not stated that any declaration was
tendered to the respondent by the eK'Ctor to make at tlie
time he made the demand, oi' at any other time. Tlie
statute does not seem to re(|uire any Irmli'r of a deelaia-
tion. What it says is, that befoi'e he sliall be ca}»alile of
heing elected, the candidate sliab, if re([uii'e(l, make the
declaration; and the Consolidated Statutes of Canada,
cap. G, sec. -Mi, enacts that such candidate, when jierson-
iilly reiiuired to make the said declaration, shall give and
iiisei't at the foot of the declaration reipiired of him a
ii>rrect 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, <is the case mnn he, shows that the candidate must
make his own declaration. It cannot be tendered to him
tille(l \ip in the proper form to be made, unless the ])arty
knows huvj the ({ualification he claims to possess is held,
111-
uU
CA6
DOMINION ELECTIONS.
[A.D.
wliether in free aii<l common soccao'e or in fief ov in
roturo.
Takinir tlie enactments to<j;etlier, the i-easonalilc view-
is tliat the candidate must pi'epare Ids own declai'atiMii •
it cannot, with any certainty of its l)eing- correctly dour,
be tendered to and demanded from him.
We think we have substantially dispo.sed of the otiicr
objecti<jn in the North ViiHorhi cii.sc.
We are of opinion that the pi'climinary objections in
tliis case mu-^t he overrule(l, and tbat the petitionei's mav
proceed to pi'ove tht/ alleg'ations in thcii' petition if they
can do so.
The petition came on to ho, tried ])efoi'e (Jldef .Iiisiice
lla^arty, at Osgoode Hall, on the UUli Deceniliei', 1S74.
At I he close of tiie evidence, the petitioners' counsel ad-
mitted that the respondent was qualitied at the time of
the election, and that the petition nught be disinissed.
The respontlent diil not ask for costs.
The Chief Ji stk'i: so ordered.
(9 CuuiniutiK Ji)iirnal, bS7~), p. -50.)
'■Jw'S4-
•>
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 .sai<l foniiei- election, who \vei-e not ropoitod,
and sucli ])ei'.sons so n^jtorteil as at'ore.sai<l voted at the
sai<l tih'ction, and a lunnlier oi" votes eiinal to the nuMilxT
of personH ho reported as aforesaid, and so <,'uilty of cor-
rupt practices as aforesai<l at the tirst eh'ction, sliould he
struck otl' tht! nuiiihei- of votes polieil for the said re-
spoiuk'nt."
This raises iwo (piestions — out; as to pei'sons wlio were
reported at tlie trial of the former petition to l\ave lieen
(fuihy of coriujit practices at the fii'st ek;ction, and wlio
voted foi' th(! responih'nt; tlie otliei- as to ])ersons who
voted in the same way, and who wt;re also ^^'uilty of cor-
rupt practice--, hut wlio were not i-eported.
The ohjection is as to the whole paragraph, and raises
tirst the yenei'al (jnestion, whethc'r corrupt pi-actices hy
voters at the lirst election affect their right to vote at tlie
.second; and su])posing that proposition answered in the
alHrmative, the second question is as to tlu.- class lirst
naiiied — those reported — whether the report is as to them
an adjudication that they were at the first election yuilty
of corrupt practices.
The contention u})on the genejval i(Uestion on hehalf (jf
the })etitioner is that the tirst election having h(,'en dett-r-
iiiined to l)e null and void, it was in law no election; and
that the tirst and second elections, though two elections
in fact, are one election only in law.
The ])oint was fully discussed in the judgment given
hy Sir Joseph Napier in the Da iKjarran case (2 P. R. A: 1).
I^Oii) and that iud<nnent is well snmmari/.e'd in Rogers'
Treatise on the Law of Elections, 10th Ed., 227, thr .
"Where an election has heen set aside hy an election
coimiiittee as 'null and void,' the committee, upon the
trial of the suhsecjuent election, are at liherty to imjuiro
into any corrupt acts whatever which have heen com-
mitted at the previous election, after the vacancy, on the
ground that although there have heen two elections in
fact, and two writs have actually issued, yet there never
has heen a valid return according to the proper exigency
r-^ I
1i
Skirl J « '1
:r.i
III
5-^ W f 'f
I . ' ! i'^ '
11! HliV:' ^''
650
JKtMIN'lON KLKCTIO.NS.
[A.I..
of tlu' Hrst wiit ; in short, that tho i)r'oc(.'(!(linL(.s HulisiMiucnt,
tu the issuin,^' of the first writ, tiiitil a k'L,fiii ictuiii liiis
bL'cii iiiiidu to it iicfordiiiL;' to its ijxi^'ciicy, coustitutf in
point of law one c'l('(;tion, into whicli the; coniniittfi' ate
then in(|uirinL;-. In tlio woids of tiic Icarncil cliainiifui :
'The party who ofi'cnils aLffiinst the j)rohil)iti()ii of this
Act is (lisahk'il to scrvr in Parliament upon such rlicijon^
which in a, rcstricteil sense wouhl ai)ply only to the clrc-
tion in rehition to wliicli tlie otl'ence shall ha\'e tiecn cuiii-
mittod. But if this election he suhse([Uently (leclaicij null
and void, and a new election take place under a new wiil
in order to su{)ply the vacancy hy the due ejection of a
(jualilied candidate, then o)\ a jietition upon this mw
election ay'ainst the I'eturn of a party who niuv Imvc
committed l)rihery, Arc, at the pi'cvious electidii, wltiih
has lieeii set aside as null and \()id, it niav he open to
show those [)rcvious acts of Itrihery, A'c, as constinitiic'
a dis(|ualiHcation of the otieiidint;' candidate, and di>cniit-
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. <i'}7), "the sec'oiitl eh'etioii uiider these eii'cuiiistaiict'H
i-^ hut a continuutioii ol' the first, the exii^eiiey of the writ
not heint' satisfied till there is a <;o()(l return."
In the earlier case, thou.n'h still a recent case, of NVr/v/is
X Til/rff (L. 11. () (J. R 147), Mr. Justice Willes aj.pears to
huve (.-ntertained considei'alile doulit upon the ])oint. Ih;
siiys ([). 171): " l>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.
'
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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<So4, or the pre-
vious A". ■ i ."> & 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
.
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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 <letermine whftliiT
t!ie member whose return or ehiction is com))laine<| of, or
any and what other person, was duly returned or elcctrd,
oi- whether the election was voi<l, and shall fortliwith
certify in writinjj; such determination to the Speakci, aiid
U])on such cei'tificate beinL? i^dven, such determination
shall be final to all intents and purposes.' The other case
in which a decision is to be final is under subsection 10
of the same section, which enacts that a special case may
be stated und(?r certain circumstances, which shall be
hearil before the Court, and that 'the decision of the
Court shall be final;' and ' the Court shall certify to the
S{)eaker its determination in reference to such special
case.' In those two cases, both of which relate to the
determination of the (piestion as to who is to be the sit-
ting mendier, or whether the election was void, the Act
expi-essly declares that the determination shall l»e final.
That is entirely in accordance with the Grenville Act,
and with the 11 k 12 Vic, c. !)«. The provisions are
almost in words the same. Then, following the provisions
of the previous Acts (it having been optional, however,
under those Acts with tlie Election Committee to leport
( n any special matter as they might think fit), subsection
14 of section 11 of this Act says, ' the Judge shall, in ad-
dition to such certificate and at the .same time, report in
writing to the Speaker.' It nowhere says that such report
KS74.]
COUNWAI-L (2).
»).).)
is to lio final. It does not say tliat tin* .Tu<lj,''f sliall dc-
tcnninc any particulaf matter, or tliat lie shall not dt'ter-
iiiine any particular niattci-, in tci-nis ; hut it says he shall
report first ' whether any corrupt practice has or lias not
])een proved to have heen connnitted hy or with the
kiiowledi'e and consent of any candidate at such electiun,
and the nature of such corrupt piactice.' Theii. sreondly,
' the names of all pei'sons (if any) who have lieeii |ii(i\rd
at the ti-ial to liave heen <ruiUy of any corrupt practice.'
Thirdly, 'whethei- corrupt practices have, or whe' her then-
is reason to helieve that corru|)t practices hive extensively
]iiv\ailed at the election to which the petition relato "
And at the same time he is authorized to make a special
ivpiirt to the Speaker as to 'any matter arising' in the
course of the ti'ial, an account of which, in his Judoiiieiit,
(iui,d»t to he submitted to the Housi' of Commons.' . .
My ohjoct in referrinj^ to the previous li'<,dsIation was to
show how closely the j)rovisions of the form»-r Acts have
heen followed in the recent Act of I'ailiament ; and Just
as a distinction is made in those Acts hetween the ' de-
tiiiaination ' o( the petition and a ' rejioit ' upon other
matters, so this Act of Parliament, while it >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 election, evi-
dence may be given of corrupt practices at the first
election, and I apprehend that it will be open on the
other hand to the respondent to show corrupt piactices
on the part of voters for the petitioner. It will be in
substance and effect a scrutiny so far as tlie petitioner s
case under the 14tli paragraph of his petition is concerned.
^^^ffl
[.V.D.
to me
v^ the
iiuil in
' 'I'h.;
of t1i.>
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 <lisipialify him to
he 'I candidate at the said electi<jn.
The point arifued upon this obj«'ction is tlu* same as
was I'liised at the Loiuhm cax*' (nufi' p. .')«iO) bcfoi'c the
Chief Justice of the (Common I'leas, and lescivfil hy liim
for the jud,ij;ment of that Court (24 C. P., 4;;4) ; and the
same as was raised also at t]w Ki itijxfim fnsr (nnfr ]>. (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<l to me at the- argument of these objec-
tions — and I stated it at the tim«', but it was not urged
hy counsel — that if the two elections that have taken
jilaee in fact constitute one election in law, the icspond-
oiit has it determined against him that his election was
void l)y rea.son of the corrujtt acts of agents. He goes to
the poll a second time, and on the .second occasion with
that cadjudicacion against him. In the ca.se of voters
thcri' has been no adjudication ; but if the fact of coi-rupt
practices at the first electl > 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'eite<l l>y 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<li(hite at the first as well as the second
eli'ction, as we |L,dve in reLfartI to voters, would not liis
Ht!at he forfeited \ii)on [jroof of corrupt pi-aetices jit that
first election? But there is, as to him, an udjudiciitioii,
and so the fact of those corrupt practices reijuirrs ik.
further proof.
Loj^dcally, I confess, I see no escape frou) this com'lusi(»n:
hut the answer may he this: The doctrine that a void
election is no election, and that such election followed \>\
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 adju<lication again.st the can-
didate would operate to unseat him when again returm d,
it wouUl have the same effect at the third or any suli-
sequent el«>ction, 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<lidate, or a convicti<»n for the mis-
demeanor of hrihervoi' undue intluenee, that any iienaltv
is Mieun-etl heyond the avoidinif of the eleetion.
The Aiactnient oKviatt's difHcultit.'s in the futui-e, itut
the (juestion raiseil is whether the I'espondeiit was not
inilii^dhle hy reason of what had occurred at the previous
election, which took place Itefore that Act was ])assed.
Looking; at the legislation to which I ha\e leferred sinee
tlie passin.L,' of the Imperial Act of l.S')4, and the othei
cunsideiations to whieh I have advert<'(l, I think the
propel- eonclusion is that the respondent was not inelinil,|e.
I find that I have ondtted to notice the contention of
Mr. Harrison, that the doctrine to which I have sevei-al
times referrecl cannot apply to this case hecausi- the first
iuid second elections in fact were under ditierent Acts of
Parliament — the Act of I.S74 repealing' that of 1S7:'>, 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 t<j ijive to that .section
43
i
i
1
'
!^
^
:.
1 m
||:
660
DOM i X ION ELECTIONS.
[A.D.
to hold a caiuliiliito incli^^ihlo in tlio altsoncc of pcisonul
wroiiif, Jiiul only liy n'ns(»n of the acts (tf ai^t-nts. Tin-
k-auKMl Chief .lusticcof Ontario has licid in tlif A'///</.x/r,,/
cKni' that in sneh a case no disiiuaiilication was iTi-utfil,
and the Conrt of Connnon PK-as has .since, in the LtjiKl'jn.
aise, expressed tlie ,san)c' opinion.
I thinlv thi.s is not a case for costs to either party.
SOLTTM NORFOLK.
Before Ciiiee Jtstice I)u.vi>eu.
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 <api)lication was dis])osed of as
follows :
* \
ii s •■
H '
I'
602
DOMINION ELECTIONS.
LA.D.
DUAI'EH, C.J.A. — I ivfusf the a[»i)licati(»n, coiisiilt'iinjr
the <lolay tlint has taken plarc. It n<» <lMul»t is to Im- ass\iiiiLMl
that the attorney has jnst heen ini'nrnietl of thest- matters;
but it i.s cnn.sistent witli the atHMavit that his inri»iiiiants
were particH who couhl have j^iven him tlie int'oiination
lon^ aj,'o, niul that IVom vaiions eaiiscs may h»i\ c with-
hehl it from the attorney "s knowh-*!;,'*'. 'I'he 'jiarticiihus
may, for all thai is shown, have heen well known to those
who j,'ave the attorn«'y the infoi'mation : the jM-titininT
may liave known them for weeks or months, 'rhni, for
all tlmt is sworn, the statements may )»e the Miercst fahii-
cations. The attorney does not swear that Im- liclicvt's
them, nor does any otlu^r i)erson in anv wav confirm tlicin.
It is not sworn that there is a i-easonahlt- L^rounil for
believinj^ that they can he proveil. 'I'ln- infoiination is
sworn to havelM'eu received since Tiiesilay, tuid no aj)|tli-
cation until Friday evenin'', on which day the aHiiJavii
was sworn. A|)|)ai'ently it mij^dit have hcen made earher.
Delay, expense, and inconvenience ou.i;ht not to Uf caused
at so late a ])eriod, unless \i|)on a strong- and cli-ar state-
ment of the e.\istence in fact of sutiicient grounds.
Dui'inj,' the ti-ial, evidence was Lciven of several ulleycd
acts of hi'ihei'V and treatinu', which are sufhcientiv set out
in tlie judgment. The following is taken from the
leai'ned Judge's notes of the evidence as to the agency
of the parties nanied :
Dv. iV. 0. Walh'i' : I took part in the last election. 1
gave respondent to understand I was taking part for him.
I know Mr. Ozias Anslev; he was also working for
respondent. 1 know that Edward Hanunond was can-
vassing foi" respondent. Never met a connnittee on this
election, and there was no organized conmiittee for re-
spondent at this election.
Civss-examlned : I spoke for respomlent at two or
three meetings, and if I met with electors I spoke to
them. Ansley and the others I have named acted as
I did.
WKT
1M4.1
SOlTir NUKFOI.K.
Mli
M-l out
.111 tho
jficuL-y
Lmn. 1
I'orliiiii-
;in^ i'or
;iis L'iin-
on thi">
for ve-
two or
kpoko to
■ft-
Jtiiiiis ir. Sfi'V'iiif : I know Haiiiini>u<l, AiihIcv, David
Sliurp, ami ])r. WiilktT. Tlicy took pait in the clfctioii
oil lu'linir of till- rfspoiidciit. They wtTo at icspoiult nt's
iiitftiiii,' at port Dover the niirlit prrvious to the clt'ction.
SiiiiiHi lir/i/i : I was at Port Dover at a piililic iiiei-tiii;,'.
Ti^ilale ami Dr. Walker liotli ^jHike in favor of Wallace.
h'lhriiiil Ifiini iinnii/ : \ wa> 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 '<l two
liieetinLfs wliere the respondent spoke. Their was iio
colulilitti'e tolllH'd. I was a lliellllier nf a 'Ullllittei' of
Wallace's friends at a pre\ions election. We me' ifter
tlie nie. tint;' to choo.sc delej^att's an<l htoked ov.|' tiie list
tn ««ee if any reformers' votes could he ohjected to. We
looked over the Voters' lists foi' lioth elections. I don't
l<iiow tliat the respondent was aware I was lu-ivinij for
liiiii. 1 made no reports to anyone of my procei'din;.;s.
W'lUiiiiii irr///<'«r respondent I : I know Hammond and
Aiislev. I do not i)ersonallv know tliev actctl for me.
1 oliject to committees, hut I trusted the whole party, i
know that ( >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 <lid their
Inst for mo.
('ross-r.i'iiiiii iiril : j held ahont forty meetinj^^s. Wlu-rc-
• ver the suhjeet came up I invarialily charj^^ed my sup-
I'orter.'* and frien<l.s to be mo.st careful not to infringe tlu
law.
DiiAi'KU, C. d A. — The lirst (picstion which ari.ses is,
whether certain [tersons hereinafter named were provetl
to he tlie I'espijudent's agents, so as to render him liahle
tor their acts, as if he had personally con.sented to or
taken part therein. The term " agent ' carries with it
the idea of authority given Vty the camlidate to .some
person to act in his name and in his V»ehalf in artairs con-
V"
i"^
Ml
664
DOMIXIOX ELECTIONS.
[.V.D.
P
sL. ,
nected with the ult'ction; and it is an t'stahlishod piiiici])le
that where a ptTson has employed an a;4t'nt foi' tin- inn'-
pose of procuring liis election, such person is respijiisihl^
for the act of the agent in any corrupt ])ractice, thouuh
he not only did not inten<l or authori;^e it, but even
had in perfect good faith done his Itest ti» prevent it :
and it has l»een held that every instance in wliicli it is
shown that, either witli the knowledge of the camlidate,
or to the kncnvleilge of an agent employed by the camli-
date, a person acts in furthering the election foi- him by
trying to get votes for him, is evidence temling to show
that the person so acting was authorized ti) act as his
agent. The weight and c(jgency of such evidence will
depend upon the circumstances of each case; but it is
evidence, and as such must leceive proper attention.
Their canvassing, that is, making ettbrts to obtain V(jtes
and interest and support, is evidence of agency, but de-
pends for force and weight U])on its extent and urgency.
If tloue at the suggestimi of the candidate, it wouM be
direct proof of agency ; if merely voluntary, it ought not
to be so regarded. (.Toing round the county, and attend-
ing meeting aftei' meeting, and speaking at .such meetings,
is stronu' evidence. AttendiuL!,- one meetinu" and sneakinsr
there, would be an 'solated act, and. by itself, of little
weight. These and similar acts, l)eing repeated, are
reganled as .sustaining the inference that they are done
^vith the knowledge and at the recpiest of the candidate
who thus employed the party as his agent. On the other
hand, the candidate may deprecate such individual agency
from the fear of indiscretion, ov even worse, on the part
of supporters, who regard the innnediate result without
sufficient .scruple as to the means, and without retlecting
upon future consequences.
Tn the present case the respondent was calle<l as a
witness l»y the petitioner. He stateil his objection to
committees, and it did not appear there was one fcn'med
on his part and with his knowledge ; he .said he held
about forty meetings, and invariably charged his friemls
"•■■"I^"''
•'■•Wf'f
!i
1.S74.]
SOUTH NORFOLK.
6G5
to Vie careful not to infringe tlu> law ; he put in papers
conlaininj^f addresses, to wliich his name was attachfil,
with a view of showin<^ that lie (lepen<le<l on a nvncral
appeal to the constituency rather than any application to
inilivifluals ; he stated in I'vidonce that he trusted to the
whole party for suppoit, anil ictV-rrini,' to those who wei'e
sJLjnalizL'd on the tiial as havin<j[ acted in a niannei" which
justitied the petiti(;ner in treatinL,^ them as a^x-nts. he s!ii<l
he knew they were all his supp(jrters, was pleased to Ir ve
them vote foi- him, and Itelieved they all did their I st
for him ; hut nothiiifj stroni^er was elicited from him to
identify him with theii' acts in pi'omotin^ his election.
He was not even asked whether he was from time to
time informed \vhat they wtM'e doinif or proposed to do.
I do not douht that if a candidate, who lias appointed
no at^a'iits, is made aware that some of his supporters are
systematically working foi- him, and hy any act (or per-
haps even hy foi-hearance to interpose) can he faiily
deemed to recoo-nize and adopt their proceedings in order
to fui-ther liis election, he makes them his agents, and
must take the conse(|uences. A contrary rule would
encourage fraud and corruption, and facilitate evasions
of the law.
Xearly all the cases set out in tlu- particulars, to sustain
which evidence was fjiven, are charsied to have occurred
in the south-eastern part of this electoi-al division ; the
places named are Port Dovei', the townships ot Charlotte-
ville and Woodhouse, and a place called Dog's Nest, at
or near which were two taverns, one kept hv George
Mitchell, the other hy one Mc(t>uade. 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<l actively for his election,
^hiny other parties were named in the particulars as \m\v-
ties to alleged corrupt practices, 1»ut with regard to these
\U
I r
I
660
DOMINION ELECTIONS.
[A.D.
I:
latter persons, there was no evidence beyond thoir aii-
parent earnestness to secure the respondent's election, on
which to fasten the character of agents u})()n them, so us
to make him responsible for tlieir acts.
As to the other four persons named, it is to he remarked
that it does not apjiear that either of them were author-
ized by the respondent to represent him for any purpose;
noi' that they ever professed to do, as far as I have
gathered from the evidence. They weie all members of
one political party, had previously supported the respomj-
ent, antl di<l so at the present election as the candidate
of that party, without ivference to personal feelinjAs.
None of their acts have been traced to the solicitation m-
direction of the respondent, who does not appear to have
interfered in any way with their procec-dings in repaid
to the election. Each seems to have canvassed indepenil-
ently of the other, acting on l)ehalf of the ptjlitical partv
to which they belonged, but independently of the re-
spondent and of each other.
There were some matters of an ipparently dubious
character which I deem it tilting to notice. One wa>;
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<l 8o
from Hammond to l)et that Wallace -^-onld he elected;
tliat it' he won he was only to return the So to Ham
innnd : and that it' he hotted this money and desired to
het more, to come hack and he (Hanunond) wouhl j^ive it
to him. There was, however, no particulars settin^r out
this as a char^v, and ohjection heini^^ taken, the matter
was dropped. Moreover, his statements were contradicted.
There was also a somewhat similar mattei- advanced, in
which it was sworn by Jo.seph Bell that on the polling
day he heard Ansley say to one Jacob Krell : " Here's
>;.') — 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
<lenied that Ansley gave him any money to bet with ; ho
was a German, and could, as ho said, neither road nor
write. Ansley denied upon oath that ho o\er ]iut 8') into
Krell's hands, or even told him to bet on Wallace. This
denial from both Krell and Ansley put an end to this
case, which restoil on Btdl's assertion of what he had
heard and what Krell told him. There is, however, fur-
ther evidence that Anslev offered money to Krell to bet
with, Ijut the witness coiild not, or w<juhl not, sry that
Krell took it; and of another witness wdio also swears
that Ansley offered money to Krell, sayirig, " Take it and
liet ;" but did not say that Krell took it.
I cannot help sa\'ing that this practice of making such
bets, when on a contingency by which the so-called bor-
rower may win and cannot lose, looks to me very like a
device to commit bribery; and if the transaction with
ifyors had been proved to be of that character, ami to
have been entered into and agreed upon before he voted,
fit!
668
DOMINION ELECTIONS.
i
[a.d.
1«
I i
ir
a.s at present advised, I should have lield it to he hiili,.iv
The positive statement that Myers ha<] voted, and tluit
tlie an'ant>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<l explained bv the
evidence; but it seems to me unfortunate that it should
have happened just at the time of tlie election. Accord-
ing to the statements of the witnesses, Mr. Hainniuinl liad
become indebted in the sum of SIS to Frederick Myeis
for teaming with one hor.se and a singh.' waggon, drawing-
.sand, tan bark, kc. The account had begun i^onie six
months liefore the election. Myers' explanation a> 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 durin<i;
the election, and especially on the polling day, were
cliarged upon them. I cannot .say that there was no
foundation for these charges ; it would seem from the
3;
f^
1874]
SOUTH NORFOLK.
(j()9
t'vick'nce to bo an inveterate liabit, when people in c<junti y
places meet on public occasions, tliat they sliouhl resort
to the taverns to drink togetlier. One after another
invites his friends, or, as is conuiiunly expressed, " calls
up the crowd" to the bar to drink at his expense. Tliis
has been a general i)i'actice at election times, and, as was
proved in this case, is at times followed without refer-
ence to political dirteiences. But to umlerstaiid the
bearing of such a custom on this election, we nui>t 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<l side
of tiie name. (2) Ballots with an ill-fomried cross, or with small lines
at the ends of the cross, or with a line across the centre or one of
the limbs of the cross, or with a curved line like tiie blades of an anchor.
The following ballots were held invalid :
(1) Ballots with a single stroke. {'2) Ballots with the candidate's name
written thereon in addition to the cros.«. (.'{) Ballots with marks in
addition to the cross, by which the voter might l)e identiheil, al-
though not put there by the voter in order tliat he might lie ideuti-
tied. (4) Ballots markeil with a number of lines. (.">) 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.-<ed to give such elector a ballot paper, his vote would not l>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
altandone<l the charges of corrupt practices, but claimed
the seat on a scrutiny of the ballots.
The respondent contended that he was entitled to hold
the seat upon a scrutiny, and that the petitioner by liis
agents, had been guilty of corrupt practices.
The general facts of the case are set out in, the ai-gii-
ments of counsel, the judgment of Mr. Justice Wilson,
and in the report of the case in appeal to the Court of
Queens Bench (37 Q. B. 284).
I. r,12),
^ \vt;ro
I l.y 'a
thcve-
I's of
uv of
V fr,r
titionev
to lioM
le ar;^!^-
1 Wilson,
kourt of
1874.]
XOKTH VICTOKIA (2).
()7:i
Mr. Mdfh'Diuin, Q. C. (tlio roHpniidcnt) : The inaj(ii-ity
in favor of tlm ivsponWont is sui<l to Ik- only throe, ami
snpi)osing that the result of the scrutiny is a^'ainst him
liy a few votes, it is clear tlie election was wholly void,
lu'causu as many as fifteen or sixteen persons who were^
duly «|ualitied to vote, and who had emleavored to
vote, had been <leprived of the power of votin^T, and had
ln'cu prevented from votin<^' 1»y the omission of their
names from the copies of tht; voters' lists furnished to
the deputies. If these men had voted, the lesult miu'ht
have been ditieivnt. It could not he said how tlu-y wouM
havt.' voted, because until the ballot is markecl a man mav
chaii;^'e his mind, and he may vot(^ and the Ballot Act is
for the purpose of enabling' him, if he think tit, to vote,
contrary to his expressed intention. The votes cannot
now l)e added, and the I'esult is the disfranchisement of
a sutlicient nundter of electois to turn the scale. To hohl
(itherwise would be to ]yat the election in the ])ower of
till' Returning OfHcer or the Clerk of the Peace : \Vor<ls-
worthon Elections, 27 ; Heywooil on Elections, oil.
Peters' act Avas illegal, and a misdemeanor under
sections <S7 and 1)0 of the IClection Act, and was a corru])t
practice which attected the petitioner under section !>4.
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 <lone all he could for the peti-
tioner, Cameron, in the election; was chairman of an election
iiKH'ting called by the petitioner at this very polling ])lace,
liiid spoken there, drove him home to his hotel afterwards,
an<l on the way di.scussed the propriety of those very
iliimers. The discussion was renewed on a subsequent
occasion, when, on the petitioner saying that he could
^
u ■
1
Up
1
l»
1
074
DOMINION ELECTIONS.
[a.d.
be no party to it, Peters proposed to do it at his own
expense. The petitiontn- told him he could not pre' nt
him, Itiit <lid not vvunt him to do it, and would ratlu r he
did not do it. All this clearly sliowed that hotli tlif
.j)otitiojier and Peters considere<l it a matter rclatiiin- to
the election, and the doin^' or not <loin,i; of wliich miijlit
art'ect it favorably or otherwise. On the electi<iii dav
Peters was on th(i<;round early, and distril»ut,e<l his dinner
tickets throu;.,di ii friend who knew tlu; elcctt)rs. It is
not only clear the motive was to affect the election, Imt
it must have done so in fact. There were in all il*2
votes polled there — 49 for Canu'ron and <)•"{ for Maclcn-
nan. It is plain that the distriltutioii of these tickets
must liave tended to make the petitioner popular, and
to create a favorable impression towards him. Ijes'ilcs,
Peters cari'ied there several bottles of ii(|Uor which were
consumed among the electors, and there is evidence n f
canvassiuLj at least one voter over a glass of whiskey.
The corrupt character of the act is therefoi-e plain, and
the agency of Peters is equally clear. His presiding and
speaking at the election meeting, called by the petitioner
and at whicli he was present, wouM alone 1)e sutlicient tr)
establisli the agency : lyr Justice Keogh, (jidv.'dn (c.ooaiji)
cam (2 CM. & H. 54, liS72). The notices for this meeting
were sent by the petitioner to Peters to be disti'ibuted,
and they were so. But licre there were other circumstances
of the strongest kind, especially the repeated discussi(jn
with the candidate of the expediency and propriety <>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 <livy
^ tlinut'i'
. It is
ion, ^i"t
all 1 1-2
Maelfu-
' ticki'ts
iilav, an<l
Besi.tlt's,
licli Nvnv
idt.'uct' ti t'
NvhiskoY.
plain, and
idinjj; an<l
petitiouiT
itUcient to
/ (conntii)
.s nioctiii;i
stril>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 <linner si'cure lon;^'
hef(jre tin; time for procuring" it. The tickets \vi'n> 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<lere<l
their vote for him, and ha<l expressed their intention and
ilesiie to vote for him, the respondent endeavored to take
the henetit of tho.se errors made ai^ainst the ])etitioner,
and maintained that the whole election was void. This
44
C7(i
DOMINION KLKCTIONS.
[a.d.
I
II
Jl
I
m
was a most unjust arj^uincnt ; t'oi- ln' had shown that if
tlic'M(! errors ha<l not Imm-h niiuh' in the lists, his niajoiitv
wouM have lit'cn <^r('att'r than the l)allots j^'avi- him. ThtTc
is nothiiiLC in the Aet to sliow that an elector mav not
.state ah)U<l in the iiollin^r ])hice, after or liefoie an (lec-
tion, or in court, how he wouM vote, or lia<l voteil. 'Hi,.
Ontario Act is more sti'ict, hut th(; 77th section was the
only one in the Dominion Act. [Wli.soN, .J. — Suitposiiijf
lie should show the l)all()t f] The (|uestion is whetlier that
would makt^ his liallot l»ail or not. He may tell any one
he likes. lie is not to show his ticket; that is all.
l^'ters' act was not <l(jne with a corrupt intent. It
devolved upon respondent to show that it was so done,
but this lias not been .shown; on the contrary, all tli.'
circumstanres show that the alle;n'ed treatin<,', wliidi
a|)peared to have lieen done on a sinLijIe occasion, was ilouc
without any corrupt intent, and in such a way as to lead
to the inference that it was not intended to inlhieiicc
votes: as to this .see the deHnition of the word " conuptly '
as ^dven in the JjdiinirHttni cdw (HO L. T. N. S. N.'H).
Peters was not an a^ent for whose acts tlie petitioner was
responsible, and the case is distiuLfuishable from the Jlnx-
toii ni..si' relied upon by the respondent. As to the tukitijf
off the 40 votes, that cannot be done. Thei-e was no j)ro()f
that any (;f the persons who had votetl had been briliod
or in any way corrui)led by beiri^f L,'iven the dinner, wliicli
was ahnost an act of charity under the peculiin- ciiruiii-
.stances of the weather, and the distance the voters liii.l
come. It depended on th(! ([Uestions of agency and of
corruption, and the ease fails in those particulars.
Wilson, J.^The points to be determined in this ca^o
are:
1. Wliether, on an inspection of the ballot papers which
were rejected by the deputy returning officers at the polls,
and accordingly as it might seem proper they should be
allowed or disallowed, the majority of the whole poll wa.s
in favor of the petitioner or the respondent.
IS74.1
XollTir VKToUIA (2).
'2. Wlu'tluT rlcotoi's whose iMiiics iin- on tlic uii;fitml
rolls from wliicli t\w lists for tukiii;,' tlir polls wen' made,
liut \vli(»se names were liy some mistaUe or otherwise
left out of these copies, ami who haij ^ootl votes, ami were
entitled to vote at the said election, and who claimed to
voti', and desired (he deputy retni-ninLj otHcers to allow
them to vote, lull who were refused liy the deputy retuill-
iiiLf officers to lie furnisheil with hallot papers for the
purpose of \(itinn", and whose tender of votes was refused,
could now, in any case, or under any circumstances, he
ailded to the poll of cither party.
•]. Whether onu William Peters was the agent of ♦^lic
petitioner, to render the petitioner answerahle for the acts,
and conse(|Uences of the acis, of I'eters in j)i'ocui'inj^f and
paying for forty dimiers for the petitioner's sui)porters
and voti'r«; on the polling day, near to the polling i)lace of
the C'arden poll at the election, ami in taking to the same
place a small <|uantity of whiskey for the use of tlie voteis
of the petitioner.
4. Whether, if William Peters was to he consideird tlie
agent oi the petitioiKM', the acts of Peters were acts of
trt-ating, or hrihery and corruption, within the meaning
of tht; statute. If Peters were the agent of the [)etitioner,
and if tlie act of Peters a.s to the dinners was tivatiny'
within the provision.s of the statute, then such a numher
of votes must he taken fi'om the poll of the petitionei"
that tlie sitting member would he left greatly iii the
uiajority, notwithstanding all other ailditions which the
]ietiti()nei' could make to his poll, ami he would lie en-
titled to retain his seat.
As to the tirst tpiestion, relating to the ballots, the facts
showed that the I'e.spondent was returned as the member-
elect by a majority of three votes, and that there were
tliii'ty-nine rejected ballots. Two of that number, both
parties agreed, were rightly rejected. The rejected ballots
upon which evidence was given were the remaining thirty-
sfven. These thirty-.seven rejected ballots may be clas.si-
tied as follows :
f)7s
DOMINION ELECTIONS.
[A.O.
l.'i
1*
(1.) Those which were marked witli a cross in tlic divi-
sion or compartment of the Imllot paper on whicli the
candidate's name is put; and to the riolit liand (jf — tliat
is, (iftcr — the candidate's name. For Cameron, Nos. 1, 2,
3, 8, 10, 37 ; for Maclennan, none.
(2.) Those marked on tlie same compartment to the
left hand of — that is, bt'forc — tlie candithite's name. Vcy
Cameron, No. 14; for Maclennan, none.
(8.) Those marked on tlie same compartment almvc oi'
before tlie candi(hite's name. For Cameron, iN os. 4, ,> ;
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<l si«lt-
in the h-tt
enuan, N')>^-
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 printe<l, and not in the column to the right of it,
which was manifestly inten<led as the place of the cro.ss,
this is of no conse(iuence, for the statute does not .say the
cross .should be put in the colunm on the right hand of the
name, but merely on the right haml side of the name,
and opposite it. The two cases referred to at the trial,
the AtJilone case (2 O'M. & H. 180) and the Wigtovni awe
(2 O'Al. & H. 215), are directly in favor of this view. There
is in reality, however, no decision requireil on the point.
The statute has been literally complied with.
Then I also was of opinion at the trial, and I am so
still, that the slightly ill-formed cro.sses contained in class
six should not be rejected. It would be too rigid ii con-
struction of the statute to apply to it which would exclude
a vote and disfranchise ,ae voter because he made a cross
with small lines at the ends of the cro.ss, or put a line
across the centre of it, or upon one of the limbs of it, or
becau.se, in his hiUTy or confusion, qy awkwardness with
the pencil, he did not draw two straight lines, Vjut curved
one of them so nnich as to look somewhat like the blades
of an anchor, when it is manifest he intended, so far as
it is po.s.sible to judge, to vote honestly, and to leave or
make no mark by which, contrary to the provisions of
the statute, he could be identitied.
Under the first class the petitioniM- is entitled to have
six of the ballots added to his poll, which would over-
balance the majority of the respondent and give the
petitioner the majority of three in his favor. Under the
sixth class, if the three votes under that class be added
i
G80
DOMINION ELECTIONS.
[A.D.
ml I
to each of the parties, it will leave their relative numbers
the same. And in my opinion they must either all he
added or all rejected. Rut I think they must be ad<l('(l
to the poll of each of the pitrties — three to each of them.
That dispo.ses of twelve of the ballots.
If I join classes two, three and five togethei-, and trt-at
them all as if they were ballots, crossed to the left of the
name, that would give the petitionee five as against four,
or an additional majority of one. It is not material to
determine what should be done with these votes, because
they do not affect the actual majority under my fui-inci'
ruling. If I were (obliged to express an opinion one
way or other, I should be disposed to count these votes,
although they were not put on the right hand of the
candidate's name, but to the left of it. For I am of
opinion the Act is not to be read as a declaration that it'
the cross be not put to the right of the name the ballot
should be void. A marking to the left instead of the
right of the name is not a cause for which the deputy
returning othcer is authorized to reject the ballots umler
sec. oo. The instructions to the voter ai-e that he sliall
mark the cross with a pencil, Init it has been decided that
marking it with ink is a u'ood vote. These instructions,
too, do not require die voter to put the mark on the light
of the candidate's name, as tlie instructions in the English
Act do, but merely to put it opposite the name of the
candidate. There are many cases in which a strict com-
pliance with the statute, oi* its literal ol)servance, has not
been required. In the Athlone chhc the crosses to the
left were not decided upon. In the Wlgtoian case the
majority of the Court thought they were l>ad.
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<l named wotild, if the}' had iiem
allowed to vote, have voted for him. And the resjxjndent
alleges that the two he has named would, if they liad
been allowed to vote, have voted for him. The petitioner
claims he is entitled to have, under any circumstances,
the eight votes of these per.sons — who had votes, and wlio
tendered them to the deputy returning officer at the poll,
and who tendered them for him, the petitioner — added to
his poll. And that he is also entitled to have the votes
of those four persons who made affidavits, and gave their
affidavits to the deputy returning officers, because they
tendered their votes, and they say in the affidavits
they intended to vote for the petitioner. The petitioner
contends also that in strictness he is entitled to claim the
remaining six votes as well, because he has shown hy
evidence given at the trial that they declared at the poll
that they then intended to vote for him, although not to
the returning officer. The petitioner at the same time
admits that these eighteen names are not any of them of
1N74.]
Ndirni vicToiiLv (2).
(is:;
•I
oonsciiuence to him, so lonf( as he has a niajority iink'-
liriiilciitly of tlioiu; and so Ion <j; as tlie two ouiittvil naiiifs
foi' the ivspondent are not addol to liis poll.
The respondent asserts that none of these eij,diteen votes
clainieil hy the petitioner can he ailded to the poll, ln-cause
the new provision as t<j votin;^ has altered the wholt- of
the former procedure. That the present purptjse of the
statute is to secure secrecy of voting-, to cai-ry into etteet
the general scheme of legislation on the suhjeet. The law
])iovides that only one elector at a time is to he intro-
duced into the compartment where he tills u[» his \()ting
paj)er. He is then to put it into the envelope supplied
to him for that purpos" and close it and give it to the
deputy returning othcer. He is not allowed to take his
hallot paper out of the polling station, an<l all otHcers,
clerks, and agents at the polling place are to maintain
seci'ecy as to the voting in a great many particulai's, the
observance of which is secured hy the penalty of tiiic or
imprisonment; and hesides that, no voter shall, in any
legal proceeding to question the election or return, he
re([uired to state for whom he lias voted. And it was
ar<rued tliat there is no otlier method whatsoever of gixini;'
a vote or declaring an intention to vote than hy means of
the ballot paper. That a verbal statement by the <'K'Ctor
to the deputy retui-ning othcer of the person for whom
he wislied to vote was of no avail, for that is not now the
mode of voting. Anu it is said that a voter may alter
his mind up to the last moment of his completing the
ballot paper; and therefore the most formal tender of
his vote in any other manner than by a ballot pajier is
altogether void. Vov these reasons the respomlent qow-
tended no votes could now be added to the poll of either
party which were not in the form of ballot papers. However
grievous the wrong may be which was done to the elector
or to the candidate, it was argued that there was no such
remedy as the one now claimed by the petitioner, and if
there is a remedy it must be the one which the petitioner
has him.self set out in his petition as the alternative if he
G.S4
DOMINION ELECTIONS.
[A.D.
fail ill jj^etting relief in any other way, vi/i., l)y avoiding
the election altogether, in order that there may ha another
and a better poll taken. And that in case the iiiajoritv
is against him, the petitioner cannot claim the seat so
long as these votes so wrongly excluded from the poll, no
matter for whom, or how, they were intemled to have
been given, are numerous enough, as they certainly are,
to influence the result of the election.
The petitioner asserts that there must still Ije, as there
was heretofore, a method of getting the Ijenetit of the
votes which were plainly tendered for or can be shown
by evidence to have been intended for him. Jint that
under any circumstances the respondent cannot make
use of the petitioner's rejected votes, in his (the respond-
ent's) favor, for the purpose of setting aside the election ;
and that the petitioner's rejected votes cannot influence
the election in reality so long as he still keeps the
majority l)y other votes.
By the Engli.'^h Reform Act, 2 & 3 William IV., caj;. 4.'),
sec. 59, persons omitted from the register by the revising
barrister were permitted to tender their votes at the
election, stating for whom they tendered their votes, and
the returning officer had to enter in the poll book the
votes so tendered, distinguishing them from the votes
which he adnatted in the ordinary course. I'heie was
no such clause in the Irish Act, yet it Avas decided that
where the revising barrister had rejected a name, the
per,son might tender his vote at the poll, and the com-
mittee, notwithstanding the want of such a clause in the
statute, might afterwards add it if it were one which
was properly receivable ; Coleraine case (P. k K. ')(y-i,.
It is said that a select committee would add the naim.' of
a person to the poll in favor of the candidate for whom
he tendered his vote at the election, although the statute
made no provision in favor of such a person who had
been left off the register, and that such power was
exercised under the original common law authority of
the House of Commons. Warren's Election Law (1857),
1 4^' I
[A.D.
oidiii;^
.notht-r
ajority
seat so
|n)ll,no
,0 Viave
nly a It',
as there
t of the
5 shown
iut that
jt make
n.'spoii'l-
(.'h'(ttion ;
inliufiice
:eeps the
'., cap. 4'».
i revisinf?
s at the
voles, ami
liook the
thf votes
'here was
i,l,;d that
lame, the
the coin-
luse in tht-
i... which
■ uaun.' ot
for whom
he statute
li who had
lower was
1874.]
NOUTH VICTORIA (2).
ON.')
khority
of
law
:iSo7),
859, referring to Dawsmis c(i«e, Soutluirnpion (P. \: K.
220), Gdunt's case, DroitvAck (K. & 0. 57;, Geo)y<''s c(is>',
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 ad<led to
the poll. Martin, B., asked if then- was any precedent
for adding votes to the poll, wlien voters had done their
iitniost to record their voteS; and by the mistake of the
poll clerk their names were onntted. Mi-. Price answered,
"I can find no precedent for tliat." Maitin, B. (to Mr.
Quain), " I Ijelieve you d(j not dispute that if a vote has
heen duly tendered it may l>e 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<lidate's name for whom he offers
to vote : Gloucestershii-e coHt (2 Peck. l-')5;. Where it
was disputed whether the voteis actually nameil the
candidate at the time, the comndttee held the tender of
the votes good because the poll clerk said he had no
doubt they offered themselves on behalf of the petitioner,
and the circumstances under which the voters appeared
before the returning officer may amount to a tender inde-
pendent of any positive declajation : ILirn-lcli rasi' (1
Peck. 390). So although the voter was not asked nor
said for whom he voted, yet it ap{»eaiiiig under circum-
stances before the returning officer that it could not be
mistaken for whom he meant to vote, his vote will l)e
added to the poll (2 Peck. ]<J7 n.. The tender of a vote
must be to the proper officer: Wnrriiigton cuse (1 O'M. &
H. 45, 40). In none of these cases was the tender of
vote made under the system of voting l)y ballot.
In all of the cases now before me on this ti-ial for
adjudication, the deputy returning officer i., fused to give
the persons in question Itallot papers to vote upon. By
the statute no person is entitled to know the candidate
li f
I
WHp'
(JSG
DOMINION ELECTIONS.
[A.I.
8
I'
M-V
for whom any votoi- at such polling place is aliout to
vott.', oi' had voted: sec. 72, snhsec. 2. Nor .shall any
person coniniunieate at any time to an}' person any infoi'-
mation obtained at a i)ollin<f place us to the candidate for
whom any voter at such polling jvlace is ahout to vote, or
has voted : siibsec. 'i.
It' the elector must tirst tender his vote for a cau'lidate
to the ileputy returning otHcer hefore he can propi rlv
claim a ballot paj.ei-, in a case such as those under con-
sideration, that is, whei'i; the electoi-'s name is on the
original roll hut not on the copy, and where hut foi- that
defect hi! would be unquestionably a good voter to che
knowledge of the deputy returning otKcer, then the rule
of secrecy is broken, and the otHcer becomes aware of the
candidate the elector is about to vote for. If the deputy
returning oificer can <lemand or must have made to him
a good tender, as under the old law, by having the name
of the candidate for whom the elector is al»out to vote
declared to him before he can l)e called upon to furnish
the 1 .allot paper, he maj' apply that rule in eveiy case
to pei'sons whose names are on the copy of the list, and
entitled to V(jte, as well as to those wliose names are
not on the copy, but who are entitled to vote. And yet,
unless sucli a tender of the vote for a particular candi-
date be then made to the officer, how can a vote for any
particular candidate be afterwards entered for him ?
Assuming there is the power to do so, there is a ditHculty
certainly in the way. Subsec. ?>, 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,
can<li-
for any
him ?
theulty
red to,
elector
way or
nforma-
•e eight
sireil to
ffidavits
osed to
lie other
ioner at
iif officer
1«74.]
Noirni vKTOKiA ('2 J.
(is?
tlu'ro rejected he knew were for the petitioner, heeause
Ijcar}' was the petitioner's aijent there, and he pressed the
deputy returninjf oHieei to take tlie votes and kn-p the
hallots separate from the others. So that if any are added
to the petitioner, all of them should he added aecoi'dinj;'
to the I'ule and practice l)ef(»re refei'rrd to in such cases.
Tiie ))rinci[)al ([Uestion, howeNcr, is, can any of them
he addeil tnider the present law. It is j)lain, if it cannot
he d(jne, that the election is in etl'ect jilaced ahsohitdy
and iri-evocahly, Avhile the law ivniains as it is. in the
power of an unscrupulous de])Uty returning' otliecr. It
rests with him to seat whom he like-s, jind excludr from
Parliament whom he likes, and to tlisfranchise also whom
he likes. A p(.'cuniary recovery had against him for his
misconduct is ik; recom])ense. The result of the election
is not to he nullified if the result can he plainly and sat-
isfactorily made out hy such an examination as a coiii-
nnttee of the House could always, hy its common law
powers, ap])ly to the case.
I have referred to the exercise of these connnon law
powers in cases which liad not ht-tMi provided for, and T
have referred to a case at law where the election .Tudn'e
added on votes and disposed of (jthe'rs accordinn' as he
thought they had heen remilarly tendered oi- not, althouuh
the statute under which he acted made no mention of any
such pjwer. The same course was pursued in Mns coun-
try hefore tlie voting' hy hallot was introduced. The
.ludf^e may, under the 73rd and !)4th sections, strike votes
off' in cases of briheiy, treating, or undue influence.
The deputy retui'ning officer may reject hallot papers in
five cases : sec. 55 — (1 .) When they are not similar to those
supplied by him, (2) oi- are contained in any I'lnclope
different from tliat supplieil hy him. i-i) All those hy
which votes have been given for more candidates than
are to be elected. (4.) All those contained in the- .same
envelope when such envelope contains more tlian one.
(5.) And all those upon which there is any writing or
mark by which the voter can be identified. He can
1
1
1
(
i
1
i
^
i
■41
(i.ss
DOMINION Kr.KrTIONS.
[A..).
reject tliem, jtcrliaps, in souk; other cases, altliou^fli tliev
are iii)t specified ; hut, whether lie can or not, ai-e ilUval
votes to stand when it is ])jainly proved they have heen
<,'iven '. U" a woman, or a minor, or an aH<'ii vote, who are
all incompetent ai'e theii- votes to stand '. IF their he
plain raids, itersonation, hoth of the living' and the dead;
oi' thei'e he no such i)r()perty as that voted upon ; (jr if
the .lud^^'es who ai'e disi|ualilied from voting do vote
arc these votes to stand i Is there no I'edrrss hut a ip w
election, where the same thintf may hait|)i'n anaiii :' If
these votes can he struck otl", what i- there to jirc\fiil
pi'o])ei' votes from l)ein<^f added on ?
Nothinj^f that I set' hut the mannei* of j^iviiiff the vote
now heinif hy a hallot jiajxir in place of its hein^' v'lni njre
as formerly : and the |)urp(jst! of the new Act heinj? to
secure secrecy on grounds (jf puhlic policy, whereas tlic
voting,' Avas openly L,dven hefore. 'J'iie manner of votinji-
V)y a paper should n(jt, if it he possihle to avoid it, he held
in any manner to lead to a disfranchisement hecause the
deputy returnin<f otlicer has wantonly or iifnorantly
refused to deliver hallots to those who are entitleil to
have them and to use them. To say that the vote cannot
he allowed — either hy the House of Counnons, or hy the
Courts or Judges acting" for and representing the House
of Commons — hecaiise it has not heen given l)y hallot
paper, and that the deputy returning otlicer can wilfully,
vexatiousU" or ignorantly refuse to furnish the hallots,
is not oidy to make him master of the election, hut is to
make the wrongful .act on his part, the justification for
not heing able to remedy the mischief an<l injury he has
caused. The whole power and policy of. the law, and
the rights and privileges of the Housi^ of Comnions to
control these elections, and to gi'ant relief against niis-
takes or misconduct, cannot have been surrendered, nor
the rights and interest of the candidates and the electors
given up, because the House assented to have these con-
troverted elections tried by a different tribunal than tliat
of their own committee; or, as it is expressed, because
A.n.
|j(!cn
1) art^
•(• 1..'
Ica.l ;
()»■ U"
ote —
L lli'NV
.'. If
l-('VClll
I" vote
(•(/ iDce
i:!inff to
.'as tin:
v()tin<j;
1S74.]
NOHTH VICTOIUA (2)
689
tilt'} t,li()U;,flit it was " ■ fxpcdiciit ' to iiiakf licttcr jdnvi-
sion for the trial of dcftion pftitions, ami the (iccisioii of
matters connoftLMl with cuiitrovcrtcil I'lcctions of iucmiIh-is
of tlie Hoiisc of ComiiiDMs of Canada." TIh' Court is to
exercise tlie like " power, jui'isdietion and aiitliorit y with
reference to an ele(!tioM petition, and the proeccilin^^fs
tliereon, as if sncli petition were an ordinaiv cause
within its jurisdiction." The Kurdish Act, Ml \' :'.2 N'ict.,
c. 12'), pa.ssed in .Inly, l>S<i''S, was one under which the
Wiii'riiifjfoii cdsi' was tri(!(l hefcre Martin, 11, and from
which our lirst Conti'oveiteil Klection Act was taken, and
there is no i;'reater power ^iven hy it than was givrn hy
our Act of 1(S7'J to the .ludn'e to add on votes, and yet it
was done in that case, and tlnj i'ii;']it to ilo so was tiot
disputed.
The only dianj^e in tlie law since then is that the voting"
is hy hallot. But for the reason liefore ^i^'iven, J do not
look upon that as an in\'incil)le reason against the exeicise
of the power of addinj^r on or rejecting' votes, if the fact
of how the vot(! was then tendered can, notwithstanding
the ditHculties in the way of ac(|vuring' sucii infoi'mation,
he made as ap})arent to the .ludL!;<' under the new system
as it C(iuld have Ihmju undei- the forniei- system. H<'i'e,
i'nnn the express declai'ation to, oi- in the heai'ini;' of, tlie
de])uty retui'ning otlicer hy some of the electoi's, hy
naming the candidat(! for whom they desired to he;
allowed to vote, and clainung to liave the right to vote for
the ])articular candidate they wishtid to vote for, and for
whom they tendered their votes, is jilaced hcyond a douht ;
and there is sufficient eviilence, in my niirid, to leud to
the conclusion that in most if n(»t in all of the otlu.'r cases
in (piestion, the deputy I'eturning oflicei' knew <listinctly,
fi'om the circumstances accon>panying 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 can<lidate was not men-
tioned at the time.
m i
li!M)
DOMINION KLK( rioNS.
[a. I)
-w
II' it lit'caiiK? ncf'i'SHiuT, to st.'ttlo this olt'ctiun, tlmt I
sliuulil ili'tcllilillc the ('l)lilil lilful(' to UiM on tlli-sc votes —
or such ol' thrill fis limy hr hchl to have hccii ihdv tcii-
(Ifivil fill' ii |)arti(uhir caiKliihitf uiidfr thr t'onncf law — I
.should ha\f lifcii (ililini'il to have (lcci<h'il the matte)' diii'
way Ol' thi' othci', ami I shoiiM haxc ilcti'iiiiiiicd it in iluit
iiiaiimT which is most cDiisistcnt with the oM law, ami in
that manner which wmiM have saveil the (li«.t'ram l.i.si;-
iiieiit of electors, and whicli would have spai'eil tin' neces-
sity (jf a new election, merely to disc(»\('i' the sense uf the
ridiiiu' as to v.'hich of the camlidates had the niMJurity,
when that Fact Wiis made (|uite aitpai'eiit to me hy the
evidence which 1 had already liei'ore me; an<l 1 >liould
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<l anew election
is a sei'ioiis matter, and is surely not to he resorted to
hnt in tluf last exti'emity. ami only if no other ade(|uate
nnnedy can he found, and it must hi- Imiiir in miinl that
the new election does not «h'termiiu' who should liavo
i)een retui'tieil at the former election, foi' theic may he a
(litierent voters' list, <h'ath and utlu^r eii'cumstances may
iiave ehantjiMl the constituency, and the ojiinions of the
electors may have since heen altered. Hut in my o))inion
lier(! is another and a hcitter remedy. I have cxpi-esscid
my opinioji on it at lar^e l)ecau.se it is an important
matter, altliou<.^h in my opinion I am not ol)lin;i-d to act
upon the votes whicli were so rejected, and 1 do not act
upon them. These votes would add to the petitioner's
majority. But the majority he has without these votes
is surticient for the purposivs of tliis election : mdess that
result can he impeacheil upon tht; char^^e of l)ril)ei'V and
treating,', which has heen made against him, and if it can
he sustained, then it is still of no consequence wheth«;r the
vote.s last referred to he ailded to the first named major-
ity of three or not, hecause a fjreater numher of votes
than all the classes in the petitionei-s favor comhinedwill
have to he struck from his ])oll.
This hrinfj.s me to the ne.xt (piestion — the one as to the
alle<red airencv of William Peters. So much stress and
reliance have been placed upon this ])art (^f the case that
I shidl be obliged to state precisely what the evidence was,
which it is said constitutes the l)ril)ery and treating by
Peters, and the alleged agency of Peters for the petitioner.
1 shall first of all state what, according to my opinion fi'ou)
the decided cases, it is re(|uired as necessary to establish
the fact of agency by any person on behalf of a candidate.
45
1
602
DOMINION ELECTIONS.
[A.n.
i
■M
111 the IL'r,'ford ease (2t L. T. N. S. 119), Blackl.um.
J., said : " In the common law a man is not rcsponsihlf
for the act of liis agent except when it is done directly
according to an autliority wliich is given to liim. In par-
liamentary law it is otherwise. A candidate who has
really meant that his agent shonld not commit a cornii)t
act is nevertheless responsil)le to the extent of lo.sing his
seat if the agent does commit a corrupt act. And for that
tliflei-ence in the law, established l)y parliamentary com-
mittees formei'ly, and now ri-cognized hy statnte, it seems
to me th'.reare two principal motives, I will not ,sav they
are the only ones, hut they are two })rinci])al motives. It
woulil not be possible to un.seat a })erson for cori'upt prac-
tices, if he were permitted, by the means of persons who
acted for him or who brought him forward, either one or
the other, to obtain the benefit of their aid, if he \w\v not
to be also responsible to the extent of losing his sent I'or
the corrupt practices that were done by them foi liis
benefit. That is one of the great reasims for which, as a
matter of public jiolicy, it was thought necessary, iii ordci'
that it might check corrupt practices, to establish tiiat
principle. Another, and a very considerable reason no
doubt, was that in al! elections whci'e extensiye corrupt
practices, bribery and the like prevailed, great care \yas
always taken that the candidate should be ignorant about
it. . . . And from the loose morality which form-
erly did prevail at elections, and which 1 do not say is
completely got I'id of, candidates did think themselvis
bound in honor to pay, and did pay. . . . And the
([uestion very much was, was that agent, when doing the
thing, in such a position that tliere would be that claim
on thi* can(lidat(\ according to the false moralitv of par-
liamentary election matters, to reccmj) him for what he
had done :* Now those are two reasons for the ]iarlia-
mentary law difiering from the common law. I'hey were
not the only ones, but they do give two very good guides
and assistances. And I apprehend that in a case where cor-
rupt practices are shown, which the candidates themselves
.5
#^
[A.n.
:Vtuni.
ivctly
n ]ii\r-
;\(> 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 a<rencv; hut
the result cannot depend on any precise i-ule that I could
define."
The acts in question in tlie case just referred to were
that one Han-ison, who had a mimher of workmen in his
employment, gave a breakfast to them on the morning
of the poll ; lie expected about 40, but about 70 came
he told the men that they could bi'ing their friemls with
them. He ordereil a break and thive omnibuses on the
{)olling day and drove some to the ])oll, remaining on
the box while tlu'V went into the polling booth. He
was a Liberal. There were several Conservative voters
among his guests. He swore the breakfast was not
given to intlueiice the voters. He was not on the liilteral
conuuittee. He attemled the couunittee room onee or
twice to make in(|uiries. He reeeiveil a book fi'om the
clerk of the Liberal committee containing the names of
his men who were voteis. He accompanieil Mr. Hosley
(an acknowledged agent of the candidate) once or twice
when he Avas canvassing. He icceivtMl letters from the
LibiM'al caiididate thanking him for the services he had
rendered at the eh^ction. He said he actetl only as a vol-
unteer. He took three sets of voters to the poll, and
afterwa'ds drove them to his house. His house was eleai'
by one (j'cloek. Bodenham, an agent of the candidate^
asked Harrison to canvass two nameil voters, which ]w
did. The invitation to breakfast was to evei'ybodv, ami
to everyboily's friends, it was to the whole to\vn, and
everyltody that liUed to come was to come. Kdwards,
the couunittee clerk, invited ])eople there and biought
ri
^
094
DOMINION ELECTIONS.
[A.D.
P
It
i
m
them up. So did Williain.s, Rowlands, Lloyd, and prol)a-
bly others who were connuittee men did the like. The
Judge then said, " I do not say that any one of tlutse
thinfijs would .sati.si'y me that Harrison was an a^ent.
Takini,' simply the fact that he gave this breakfast, •
merely that he had gone with Mr. Bosley to canva.ss, 1 do
not say that that would satisfy nie, thouirh it "oi's
strongly to prove it ; nor would the fact that Boslt'v liud
spoken of him afterwards as having done such good ser-
vice ; nor yet do I say that the fact that Williams, a coiii-
niittee man, brought ])eople to the breakfast would satisfy
me ; nor yet that Edwards, who had been emjiloyud
about those railway men to some extent, brought ptjonU;
up to breakfast; nor yet that Lloyd was there ; nor yet
that Davis was there. No one of these things, 1)y itself,
satisfies me that Harrison "s breakfast was one for wliich
the party are to be con.sidered responsible ; yet, taking
them altogether, a number of little pieces of evidenot! do
pi'oduce an etfect on my mind which lea<ls me to say that,
according to the usual rules in parliamentary matters,
this, which is certainly an act of corruption, is so c!os(!ly
brought home to the agents and persons in authoiity
as to constitute them accessories to it, and for which t .e
candidates ought to be responsible. I cannot come to
anv other conclusion than that this act is one wiiicli
avoids the election."
There is one other case to which I shall refer for the
language of the Judge — the Taunton c<iHt: (80 L. T. N. S.
125). Grove, J., said : " I am of opinion that to estal)lish
agency for which the candidate would l)e responsible, lie
must be proved to have by himself, or by his authorized
agent, employed the persons whose conduct is impugned
to act in liis behalf, or have to some extent put himself
i."' their hands, or to have made common cause with them
— all these, or either of these — for the purpose of promot-
ing his election. Mere non-interference with paities who,
feeling an interest in the .success of the candidate, may
act in support of his candidature, is not sufficient in my
mam
T
\K.D.
1874.]
NORTH VICTOUIA (2).
m:
.'oiia-
Th<;
these
1st, •
s, 1 do
ifOCS
ty hail
)(l scr-
a eon\-
satisfy
iploycd
ptiople
n(»r yet
iv itsi^U',
)V which
,, takin;;-
douce do
say t\\at,
matters,
(■lostily
,iutho.'ity
,hich t .e
come
le
to
ch
wnicii
Un- the
T. N.S.
tahlish
es
Insi
hle,h
Inlhori/.e
il
i>neo
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. 4<S) it is also .said, that authority to canvass
certain workmen would not be an authority to canvass
beyond those workmen. With respect to anything done
as to voters other than those workmen, it might very well
bo .said that was no agency, but within the .scope of the
authority to act as agent there was quite as strong a
responsibility, on the pait of the candi<late,as there would
be in the ca.se of a general authority to canvass.
In the Pcnrtju east' (C. tSi D. (il) one Sewell, on the au-
thority of resolutions passed at a meeting in the l)orough,
went to London and brouifht down the sitting member
as a candidate. The two atten<led a meeting together,
going there in company. Sewell was appointed chairman
by the company present. It was a meeting of the sitting
iriember's friends. Sewell accompanied the member gene-
rally on his canvass, and he attended on the hustings.
Dui'ing the poll Sewell introduced a voter, saying he,
Si'well, had brought him down as a candidate, and Sewell
was not called on to conti'udict these facts. IlchI, that
agency was established.
Speaking prominently on the hustings in .suppoi't of a
camlidate, and canvassing on his behalf, coupled with
otlers of money, constitute a man an agent to the extent
of proving corrupt practices: LavcitHh'r cdHc (14 L. T.
N. S. 270).
The parliamentary practice of holding candidates civilly
res])onsible for the acts of their agents, although the
agents have exceeded the limits of their power, rests on
a better and more satisfactory basis than is commonly
i
696
DOMINIOX ELECTIONS.
[a.d.
ascribed to it. It is this : It is a well known ruli' of law
and of equity that a person cannot take the advantaif« of
an act procured by and founded on the fraud of another,
althou<^h it is connnitted by that other as his a^rent, with-
out his knowledge, without being lialile to lose that which
he has gained by such means, or to be in some other
respects liable for the fraud : lid r wick v. Engl I sli Jaint
Stock Bank (L. R. 2 Ex. 2r)9); UdM v. At/uuioa (7 H.
& N. 172, as explained in L. R. 2 Ex. 205) ; New Bnim-
w'lck R. R. Co. V. Connyheure (9 H. L. 711). It would bii
manifestly unjust to the public that a candidate shouM
secure his election by the corru])tion, or oth(>r 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<h
bein'tit,
ont was
i1)lic can
ic which
erything
h means.
)r not is
-lose con-
did the
's hands,
and for
)y which
as K'i^'*'"
copiously
itHciently
itioned.
s a^ent is
id dispose
^-ther the
uptly or
niore con-
uld appe*""
to consider
As to
\e
r
1874.]
NORTH VICTORIA (2).
m7
the alleged agency, Peters said in effect, that he was an inn-
keeper on the Victoria Road, and kept the inn there before
and at the time of the last election. There was a nieetinf;
at Ashby's hou.se, in the township of Garden, before the
election. It was Cameron's meetincj. Witness thinks he
was chairman of the meeting. He took Cameron's side at
the election and at the meeting. He opened the meeting.
He said Cameron was there canvassing for the election.
Did not know who moved he should be chairman. He
])ut lip some notices in his house of that meeting, and he
sent some by Ashby or by some of the neighbors. The
notices were sent to witness to be di,stributed. Cameron
was up at witness' inn several times when he was in that
part. Cameron came from Ashby's meeting in witness'
cutter, and put up at witness' inn that night. There was
no understanding that witness should be at the meeting.
He was at the place of polling on election day. He ne vet-
asked a man that day to vote on one side or the other.
The following is in his own words : " Two or three days
before the election I asked Ashbv if he was ffoin<r to ijet
up dinners for the voters. He said he was not. He had
done it before, and people did not pay him, and he was a
poor man, and he could not do it for nothing. I told him
he had better get up the dinners on account of the voters
having to come so far to vote, and no place for them to
get dinner. He said he could not unless some one would
guarantee to pay for it ; that at a former time he had
given dinner to about eighty, and some one went round
with a hat and gathered up S4.50, and that was all he
got. I told him if he would get up the dinners I would
guaranteee and see him paid for forty dinners. I asked
what he would charge apiece, and he said twenty-five
cents. I .said I would give him twenty cents apiece ; it
was enough, as 1 had to pay it out of my own ])ocket.
He would not agree to it for less than twenty-five cents.
I told him to get up the dinners. I paid for the forty
dinners T spoke to Cameron about
making such an arrangement before speaking to Ashby.
i
|i
!l
(i})8
DOMINION ELECTIONS.
[a.d
He said he could not do it unless Maelennan and he
a<,'reed to do it ; that he durst not d<j it ; we could nttt
intei'fere in it ; that the: law would not allow it. I sniil
the law must be very strict if it would not allow a iiuin
to t^et his dinner. I asked him it' it would hurt th.-
election if I paid for tlie dinners out of my own p(;ckt;t.
He said he did not know ; lie said he could not do any-
thing about it unless with Maclennan's consent. 1 don't
recollect if I told him 1 would give the diiniers. Caiiieroii
iin(' . ! not speak of the way it was to be clone. Ht*
dn^ in to approve of it, in case it should intt-rfere
with his eiiiction. . . . F made an arrariu''!ii<nt
wli ii A.'^hby Mift 1 was to pay for forty of Mr. (Jaiinnurs
voter,s. ... I took no steps to gt't my inuiw y
back. I took three l)ottlcs of whiskey that day from mv
place to Ashby's — othei- people did so too. I left the
whiskey in cart^ of Mr. Malally, the father of Mrs. Con-
nors, at Mr. S. Coiniors' house. I think I gave a treat as
well to some of Maclennan's friends as to Cameron's. I
refused to give James Sample his bitters becausi- Ik- ha'l
not voted. 1 said to go and vote ; J would not treat him
till after that, in case it should be t^aid I had V)ribed him.
He did not get his bitters." In cross-examination he said:
" I do not recollect I ever canvassed any voter ; there was
no tavern nearer Ashby's than my place, a distance of rive
miles. I heard the people say they had to come twenty
or twenty -live miles to vote there. Cameron had his own
team at Ashby's the night of the meeting. I aske<i liini
to ride with me, and he did ,so; it was by chance he rode
with me. Cameron told me a candidate could not provide
dinners' for voters for the purpose of influencing their
votes .directly or indirectly; that there was no way of his
getting round it only with Maclennan's consent. I never
applieil to Mr. Cameron for payment of the SlO, and
never expected it. I never got from him any money but
the ordinary tavern bills while he stopped at my house.
I did not know if the persons I gave some of the tickets
for dinner to had votes or not; or whether they were for
iiiimimiiiwiiiw
provule
their
(jf liis
10, tiii«l
hut
lev
housf.
tickfts
m
lh74.T
NOHTH VICTOHIA (2).
(if)()
lt;re
for
Maclonnan or not. 1 kept cautious as I was 1,'ivinj;-
dinner not to ask any man for \ns vote, in case Mac-
lennan jj^ot a claw on nie. I \va.s not a voter."
The petitioner was exaniinc(l on his own Ijchalf. He.
.said it was while driving' with Peters from Ashhys
meetin<^ tliat Peters first spoke to him of the dinners.
Peters said .some arrangement should he made for dinners
for tho.se who came a lonj; way to vote. " He asked mc it"
I could make any such arianj^'cment. I sai<l 1 could not,
directly or indirectly: the law was very strict, and I
would not jeopardise the election liy iinythint;- of the
kind. I was sorry for the people, and I would see Mac-
leiinan and s] eak to him, and we- might come to some
arrangement al^out it. When 1 .saw Macleiman it escaped
my memory. i"'iome days after that Peters spuke to me
again of the tliimers. I said I had forgotten to speak of
it to Maclennan, that I could maK*.- no arrangement, or he
a piirty to it in any way. He a-ktd me if theie was any
harm in his paying for the <linners out <jf his own pocket>
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 an<l of
the shoi't address of Peters, amount to anything recjuiring
any serious consideration. Tliey do not .show that the
petitioner put him.self in Peters' hands, or suffered Peters
to act for and represent 1 im,
If an agency could be made out of these materials, it
would, under tlie law, already severe enough in that
respect, be quite intolerable. It would exclude the com-
monest acts of kindness and hospitality between neigh-
bors. It would ostracize the candidate by keeping him
estranged from the electors, who should have every
opportunity of l)ecoming acquainted with liim. It wouhl
prevent association at a time when combination w.is
especially useful, and it would well-nigh stop social inter-
course altogether. I entertain no doubt that the acts to
which I liave alluded are not, and cannot be deemed
sufficient to establish agency for any purpose or to any
extent, and thinking so, it is right I should plainly say so.
,v#^
1874.]
NORTH VICTORIA (2).
701
Then, did tlio conversation between the two as to the
<linner constitute Peters the agent of the petitioner :* It
was not contended by tlie respondent that the first con-
versation was sutKcient to estahlisli the character of aijent
or ajfency. No doubt it did not do so, but repelled it
altogether. The second conversation, it was contended,
did, of course in connection with all the other circinn-
stances, and by the force and eti'ect of tlu^ir addition and
accuimilation, ci-eate Peters the agent of the petitioner for
the purpcse of providing for the dinners wliich were
given and pai<l for by liini. It is so contended, because;
the petitioner said among otlier things, wlien he was
asked by Petei's if there was any haiin in Petei's paying
for the dinner out of Ins own pocket if he chose to do so,
and he, the petitioner, answered that he could not jirevent
him if he chose to do it, but he did not want him to tlo it,
and he would rather Peters would not do it ; and it was
argued by the respondent that tlie petitioner was bound
to have given a positive denial to Peters. That the peti-
tioner should have told him he nnist not do it, or tliat
lie should not have used such language as that he, the
petitioner, could not allow him to do it, and that he, the
petitioner, could not prevent him and did not want him
to do it, and he would rather it was not done. But can
it be .said if such language even as that is used, and the
speaker really means what he .said, and is not covertly
artbrding an approval of the act he is assuming and pre-
tendin<r to condemn — and I have not the least rea.son for
thinking the petitiontu- did not really mean what he .said
— that agency has been established, that the ])etitioner had
put himself into the hands of Peters for that ])urpose ?
The language of Mr. Justice Grove, already (juoted, is :
" Mere non-interference with parties who, feeling an inte-
rest in the success of the candichite, may act in .su])port of
his candidature, is not .sufficient in my judgment to .saddle
the candidate with any unlawful acts of which the tribunal
is sati.sfied he or his authorized agent is ignorant." But
the petitioner said more, far more, than the respondent
I
I
702
DOMINION ELECTIONS.
[AD.
i'5l
Hi 3;
;}
il'fl
has, on his ar<,'unit>nt 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<r H. 44), " I adiiere to what Mr. dustice Wilics
said at Lichfield, that a Judge to upset an election ought
to be satisfied beyond all doubt that the election was voiil,
and that the return of a meml)er is a serious matter, and
not to be lightly set aside." I refer also to what was .said
by the same .Indge in the Wlgan ao^e (1 O'M. \: H. 1!)2):
" If 1 am satisfied that the candidates honestly intended
to comply with the law, and meant to obey it, an<l that
they themselves did not act contrary to the law, and hoiui
fiile. intentled that no person employed in the election
should do any act contrary to the law, I wdll not unseat
such persons upon the suppo.sed act of an agent unless the
act is established to my entire satisfaction."
I apply the same language to this case, and I add that
I will not unseat the sitting member or prevent the per-
son who has the numerical majority from having the seat
upon the supposed act of an agent unless the agency is
established to my entire satisfaction, and in this case that
has not been done ; on the contrary, the fact of agency
has been disproved, disclaimed, and repudiated in the most
explicit and emphatic manner ; and it is well that it is so,
for it is the only act that has been mentioned as having
been done throughout this election of the nature attrilnited
to it ; and no doubt, if there had been any acts of a more
serious or even of the like nature, they would not have
lain concealed, considering the strong personal interests
i:
1874.J
NOUTll VKTolMA (2).
70:1
which ('liter into coiitt'sts in this constitiU'iicy, whcit' the
nmjorities in several of the late eh-ctions have hccn only
three or four for the successfnl eandiilate.
I must say this election contrasts most favorahly, for
all parties, with some of those which have heen held in
other places, and which have not heen creditahle to the
parties concerned, and which nnist sorely have tritMl the
faith of those who lielieve in the excellency of popular
i"epi'(!sentation, when they find those who wv.w supposed to
he the honest and actual choice of those who were su|)])osed
to he the free and indei)en<lent electors of a constituency
hohlinff their seats l)y the mere foi'ce of money or undue
inlhience ; not hy an election, hut hy a contract of sah-
and purchase which was as had on the side of the pur-
chased as on that of the purchasers. From all that, and
anythinij^ approaching it in any respect, this election and
the candidates stand unipiestionahly fi-ee.
I have already said that if the charge of agency were
not maintained, and in my opinion it has not, it would he
unnecessary to consider whether the giving of diiwiers hy
Peters was or was not hri])t'ry, ov treating within the
meaning of the Act. The ])oint was ai'gued hefore nw
very fully by the respective parties, and many cases were
cited as applicable to it. I am not .sure what opinion I
should have formed with respect to it. It is not impro-
bable, if the agency had been established, that iilthough
the electors had come from ton to twijnty-tive miles to
the poll, and there was no inn nearer than five miles to
it, I should have lield it to have been a violation of t!\e
statute. I must, of course, have been satisfied that it was
corruptly done ; that is, done for the ])urpose of intluenc-
ing the election either by voting or not voting, befoi-e 1
could have found the otience to have been conunitted ; and
it is not so perfectly plain that a free dinner, given by a
candidate to a hungry voter, who has travelled twenty
miles in a Canadian winter day in January to the poll,
is necessarily, and as a mere consc(juence, a corrupt act.
I do not know any law which would prevent a candidate
P
704
DOMINION KLKi-TlONS.
fA.D.
from ^'ivltig a voter in such a season, and uti siicli an
eiiicr^'oncy, a l»itot' \)vvti<\ and eht'esn for hiinstilf, or a lock
of liay and a drink of water for Ids horses. Thesi; aiv
matters of dei^ree ; the )iiann(!r in which, ami the nmiiliri-
perhaps to whom, tliese services W(!r(> 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<f any siicli
tliinj^ to he done when the ^'ain is so imnuMliatc and it is
so very likely to he the leading cause for so much activi-
ty and kindness. It is sufficient to say that I have not
made up my mind on that part of the case, and 1 am jiflad
it is not necessary 1 should do so. My leaning,', however,
at present is more af^ainst the ri^ditfulness and lawfulness
of that transaction than in support of it.
1 liave <T[iven this cas(^ a careful consideration, aiul
determining- this matter of agency as I do, I nuist decide
that the petitioner having' the majority of votes in his
favor, upon an inspection of the i)allot papers only, is
the person who was duly elected for the Xorth Hidini;-
of th(! County of Victoria, at the last election for the
Dominion Pailiament, held for the said North Killing,
and that he should liave been returnetl as i\w person so
duly elected, and that the cUiction and retui'u of the
respondent for the said riding at the time aforesaiil were
and are void.
I must aw^ard the general cjsts of the cause and pro-
ceedings to the petitioner to be paid by the respondent.
with the exception of the costs relating to that part of
the petition whi?h applies to the voters whose names
were not upon the copies of lists furnished to the deputy
returning o'ricers, but who were entitled to vote, and
should have l)een admitted to vote at the said election,
because I have not judicially determined that part of the
petition, and with the exception of the cost of the .scrutiny
A.D.
\ un
lock
! art'
I tho
con-
ClUlSt'
uu'h a
,• ^\i('li
id it is
lU'ti vi-
vo not
,in ^lad
nvever,
d'ulness
)n, Jintl
fc (U'ciilc
in liis
only, is
Hiding-
for the
Ui<lin>,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<l the allidiivit
of the atte.sting witness iluly nworn to as ie(iiiiifd hy the statute.
The election clerk found that one of the twenty-tive jiersons was not
entered on tlio voters' lists, and thereupon the returning olliuer and
election clerk compared tlie names on the nomination paper witli the
certified voters' lists in his jiossession, and on finding that only
twenty-four of the persons wiio hud so signed were duly i|ualitied
electors, he rejected B's. nomination paper, and returned tlie respond-
ent as memher elect.
Held, 1. That as the policy of tlio law is to have no scrutiny, or iis little
as possible, in election cases, and to give tiie people a full voice in choos-
ing their representatives, the defect in the nomination paper was one to
which the returning otiicer should not have yielded.
2. That if the election had gone on the defect in the nomination paper
would not, accortling to the '-Oth section of 'M Vic, c. !>, 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 <luly sworn to according to the statute,
the returning officer was bound to accept it, and to act
upon it as a genuine trutliTul document. It is said that
he and the election clerk raised and took an objection
which was not apparent on the face of the document, and
that they discovered it l)y an examina-'on of the voters'
liots, and that such a proceeding was in effect a judicial
investigation and in(iuisitioii held without authority, and
determined contrary to law. For the respondent, it is
said that the returning officer is iiot wholly and only a
ministerial officer; that he is necessarily, and in fact has
certain judicial functions to perforoi ; that he is by section
11 of the Act to decide on the nundjer of polling places
to be appointed ; that he has to grant a poll by section
2-i if more candidates than can be returned are nominated
in the manner re({uired l)y the Acf. ; and he is by section
23 to report any nomination pi'oposed or rejected for non-
compliance with the recjuirements of the Act ; and that
in all cases when the objection to the candidate or votei-
or to the nomination paper is patent ov notorious, he may
act judicially ; and that he cannot receive a nomination
paper with only twenty-four names to it, for that would
be the .same as if he received it with less than the number
of twenty-live electors in fact ujxjn it.
I am of opinion the returning otHcer is both a minis-
terial and a judicial officer. He has not now, as formerly,
to hold an inqiiisition into the cajiacit}' or (lualitication
of a candidate or voter; but I f(.'el as.sured if a ])t,'rs()n
appeared and was nominated, and such candidate wrre
a woman or a mere child, that the returning officer could
•lecline to receive such a nomination, and in like maimer
he can decline to receive the nomination of a Chief
Justice or the Speaker of the Senate. I think also he
may refuse a nomination pa})er signed by less than
twenty-five electors, because the Act requires that thr
nomination .shall be by twenty-five. I am disposed to
46
"08
DOMIXK )\ f;Lf:CTIONS.
[A,i>.
think, too, lie can reject a paper siu'tie'l liy twentv-tivc
if it were <leclare(l by the catuhdate that the paper was
a sham ; that the names were those of pei'sons who were
not electors at all, and never had heen; or that half the
names were forgeries ; and if thei'e were ^Qod reasons for
the returning otficcM- to helieve that stateuient. and lie did
liclieve it.
It is iKjl evei-y papei' in the form of a nomination paper,
however formally it may he prepared, that is to u:i)Vcrn a
leturning officer, for that would l)e to make a fau-c of
the whole pi'oceeding, and t(j put j^arties to aii umicces-
.sary and ve.Katious e\[)ense, when it was known heforc-
hand that it would hi' all to no ])urpose.
[ feel a great <litHculty in dealing with this case. The
nomination papei- was foi'mally, on its face, correct. It
was [)repare<l and intended to bt; a correct document. It
was honestly lielieved to be correct, and it was used fairly
anil truly for the purpose of an election, and it was a
surprise to Mr. IJannerman and Mr. Muir, the attestant,
to discover that William Tierney, one of the twenty-Hve.
was not entered on thi' voters' list. I have no doubt tlie
icturning othcer acted honestly and wdth perfect pro-
priety in all respects according to the best of his judg-
ment, and In,' acted on the legal advice which he sought
foi' and followed in rejecting the paper. He had the
means, to .some extent, by him to verify the correctness
of the persons' names in the pr..per being electors or nut
^assuming that chuioi's mean tho.se persons who were
electors on the lists to be asal <d tluit election.
1 think, however, with much hesitation, that the defect
in this case, which I have no doubt exists, was one to
which the returnin;'' officer should not have yielded,
and it certainly was not accepted or yielded to by Mr.
Bannerman, but was resisted by him, and the fact that
the affidavit was wrong at all was denied liy Mr. Muir
By reason of this one defect — one rather of form than
of substance, for Tierney vvas in fact a real proi^erty
holder who should liave beeii on the list, and a defect not
-tivo
■ was
wev"'
i" tUr
us i^ov
papt'V,
ivi'VU a
aicc n\
unt'Ct's-
licVori'-
,c. Thr
rod. It
U'Ut. U
ed taivly
it was a
vttestaiit,
k'litv-tive.
un
ul.t tl\«'
t'rct pvo-
lis ]W^'A-
r SdULillt
lia.l ll>''
)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<l I must hold the election,
acL-ording to the best opinion 1 can form, to be void. I
a<'(|uit the returning officer in every I'espect fi'om all
blame, and I am of opinion he acted honestly and fairly
to all parties; and if he eri'ed, which, with some doubt,
I think he diil, he did so where many might e(|ually havi;
eired. He was anxious to ha\'e no ditKculty raised, and
his judgment was tbrtiffed hy competent legal advice. I
must leave eacli party to bear his own costs.
(10 Corniitoih^ .lni> 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<r, altlioui;!!
each one of tlu'se opposing witnesses speaks only to an
inch'pendent fact oi' circumstance not spoken io liy any
of the others.
If an action were lirouu'ht to recovei- tlir anKjunt of ^i\
promisso'y notes, and the defendant plea<led a denial of
the making to the first note ; that he wa.> 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- <lri'i-n<lant"s sole h'sti-
iiiony.
It is impossililf tu avoi'l set-in^' and t'ccliiiL; that tin
more,' rr('(|uently a witness i.s (•onti-adictcd liy l)tll('l■■^.
altliouj^h each opjiosin;!,' witnt.vss fontfadicts liiin on a
scparati- point, the uxur !■< <»ui- «;ontiili'ncc in that siii^h'
witness atiectcd, until at h-nj^'tli, hy the nuiiilMr of con-
tradictinti" witiK'sscs, we may 1m- indnccil in clloct to
disliclicvc him alto,L''«*thci-.
It is dirticult to hclifvc that .^'^ many arc wioiij; ; it is
easier to htdieve that one is wron;^ so many times ; and the
moi'e there are who sjteak against him, the moi'e we iin-
led to helieve that he is tin* one who is in the wroiii;' I
stated this ;L^enerally dui-in^' and at the close of the aruii-
iiient o'," counsel on tin- trial, and I f.-d it rin'ht to state it
agaiii as govern in ij,' me \<*i'y nnu.-h, perha))s I may sa\'
alto<>ethoi', in deciilin^^ upon th*- tvi<lence.
I do not say from this that when a witness ha> 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<M' of them against the one. and
helieved the one as against the oth.-r three. 1 should feel
a diffictilty in determining how f::r to tieat the one as
discredited by the tirst three, wh»-n his vi-racity had l)een
strengthene<l by the belief accorded to him as against the
second three.
The (jue.stion of veracity doe> 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
71<i
l>i»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 <la}' well spent.
I said nothinn' to him of making g(K)d his time to him : I
thought of nothing of the kind."
1 have no reason to doubt the statement of the witness
Mohns. He had no object in fabricating a story. The
strong interest of Thomas Murray for tlie resj)onileut's
cause Avould induce him to go as far as he thought h«
safely could go in talking with tlie electors: and foi' that
interest he )iiight go further than he had inten<led to ge
or thought he ha<l gone in his conver.sations with tliem. i
decide this chai-ge solely by reason of the weight whicli
tlie evidence of Mohns accjuires from tlie concurrent', as
it were, of that of the other witnesses, from their testi-
mony being all adverse to that which was given Ity
Thomas Murray.
■I The third charoe is that relating to Robert Pollock.
His ca.se is that when Thomas Murray, Mr. Stone an<l
Mr. Jackson, called upon him lately before the la.st elec-
tion, " Thomas Muri'ay asked me for my vote. I ha<l
not supported jMr. Murray before that. He asked nie to
support his brother. I called him to one side and I told
him my objections. 1 said I was hard up then, and the
1874.]
N(»i;ill li'M'HEW.
717
mail tlijit woiilil ()ltli;^c iiic I woiiM ulili^-.' liini. I wfiit
on ttt tfll him of sonic matters, ami I iiiciitiom'il money.
and lie saia, <lon"t mention jiImiuI money, tlie law i> 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 groun<ls. Stone
and Jackson said to Pollock he had hetter ^dve me his
name for my brother ; that he was the Government candi-
date. Pollock then called me away from the others a
little way. He made the same remai'k iv^tim to me. I
said, I had already told him my mind upon it. lif it(>n;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 <lo. He .said. Well, he did not know but he
would give me his name ; that I had the name of being a
gentleman, anyway. That is all that was said. 1 did
not .say anything of the law being strict about money ; I
think Jackson .said it to him. T .said nothing to him of
'call me no gentleman;' nor did I say to him, ' If I don't,
call me no gentleman.' I said nothing to him of ' half his
farm' or of the whole of his farm. Nothing was then
said of anything l)eing done after the election. I did not
.say to him to wait till after the election. I .saw him on
the polling day. Did not speak to him on that day. T
saw him about a month or so after the election 'n i' •
.store. He wanted me to lend him .^100 or so. i 1
had no money to lend ; we required it all for ou siness.
He said he did not know but I might lend him tht money
after the election. I said I did not give him to undei
stand I would do so, and ho must know it ; and he said,
Yes, he did know it. He said, Could he not get it from
the other party ? I said I did not know. The general
impression was he voted the White ticket, anyway. He
was annoyed. I did not give him to understand in any-
■r
m
1
h 1
. 1
Imess.
()nev
said,
1 from
kneral
He
any-
^):
t
%
f
1874.]
NORTFf KENFUEW,
710
way, in any convorsation with liini, I wouM do anythinj,'
for him in connection with the election; on the contrary,
I tried t(/ wxade it."
In cross I'xaiidnutioii lie maintained Ids ori<,dnal state-
ment, lie addi'il he would not Itelii.'ve Pollock on his oath.
In this matter it was observed upon hy the ptstitioiiei-'s
counsel that Stone and Jackson, who were present, accord-
ing to the evidence of Thomas Murray, at a ;^'ood deal of
the conversation spok(!n of by Pollock, had not been
called as witnesses by the respondent.. It is a fair .subject
of comment. If, however, they had been called, they could
only have spoken to the earlier part of the convei-sation.
It would certainly have been important to have had their
testimony.
Here a<,'ain is another witness opposed to tlie sanx!
witness for the respondent, and there is no reason to dis-
believe him, especially, when it is of the .same nature
as tliat spoken to l)y the othei- witncs.ses on the other
charges.
4. The fourth charge i-elatos to Martin Melchui-. All
that took place, as he .says, with him was that which
happened on the polling day, when Thomas Murray asked
him for his vote and if he were going to work on his side.
The witness then said, " He, Murray, did not promi.se me
anything. He said if I worked on his side or voted on
his side, to go after the election was over to see him. I
went to him after the election. Ho said I had not voted
for him. I thought I was to get something. I thought
I could u'O when I liked. I told him 1 had worked for
him. He .said I had not worked for him. He told me
thai riuht oti'on the street when I saw him."
The matter is not wliolly free from some slight sus-
picion, but it i.s all so indefinite that it cannot be safely
•^•^id there was a pron)ise implied ; there was certainly no
express promise to do anything for the witness after the
election. " Going after the election was over to see him "
does not necessarily mean that he was to go for a corrupt
urpose ; it may or may not be so. It is a matter of fact
r 1
Mi
ip!
720
DdMIXIOX ELECTIONS.
[A.D.
f .f 1
an<l of int'erence, aii<l I tlu.'ik I ou'^lit not to iiit'cr it From
the facts .stated.
■"). Tlir fifth clinr^c was spokon to ])y Antoine Rosh-
oi'ski. As t< this cliar^c, it is not disputeil tliat Thoiiia>
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
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f
r'! ^
si'
! 1 (
Hi
i
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■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(le<l tlie natuiai desire to
win tlie Itet jnst for the sake of winning it, aitltouo-li no
money is (h'penilont ujion it, and tlie natmal desire to carry
the eU'ction successfully all o\er, which was secured hy a
further het of 8401), it appears, I think, the prol>al»ilities
of tlie case aii' <juite in agreement with the ])ositi\i' tesli-
inonv of riossorski, and which is corniliorated in nart l>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.
#?■
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ft
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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 sai<l,
I think, as I do not disbelieve Douglas, the probabilities
for what has been before said oblige me to accept of his
narrative, although, as I have said more than once, were
that the only charge made, I should not con.sider it to
1874.]
XORTH llENFUEW.
72:?
be substantiated against tlie contradiction given to it by
Thomas Murray.
9. The ni..oli charge relates to the .sale of oats by
.lohn Luck^ Jr. He said tliat Mr. Foley, the respondent's
a.ssistant bookkeeper, told him the price of oats was 40c.
a bu.shel, but he would give the witness 48c. if he would
vote for Mr. ^Murray, and Luck answered he was not
selling his vote, but if he, Foley, would give the 4'}c. a
bushel, he, Luck, would take him at his word, and that
the oats were sold accordingly ; Fole}' telling Luck not to
tell the other clerk who weighed the oats what price he
was getting. Luck had 5 or G liags of oats. Foley denied
this statement. He said Luck asked 45c. a bushel, and
he split the difference with him, and gave him -i-'lU: It
is not clear that there is any -agency pi'ovel on the part of
Foley to bai'gain in the manner represented, although
there was a re(|uisition in favor of the respondent left 9n
t])e C(mnter, and those in the shop were to ask persons to
sign it. But if there were, Foley's denial is entitled to as
much credit as Luck's assertion; and the ti'ansaction,
altogether perhaps about 15 bushels oats, at ."ic. pel' bushel
extra WduM only be 45c., does not in<luce one to lay any
great stress upon it.
It is true that farmers ami otl.ers are veiy particular
and pei'tinacious about the highest cent for their pi'oduce
or articles of sale, and that a very small advance of price
may operate as a sufficient inducement to some persons,
even on a small (juantity of anything, to consider how
they should vote at an election, or to change theii- vote;,
oi' to make a promise to vote. And the smallness of the
transaction is not a reason for (li,>bclieving 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<l at the ti-ial to have been guilty of corrupt praeticc>.
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<l not, iissuming them all to have been made, the
slightest effect upon any one o*" tlie vot<'s or vniers, witli
resiiect to which and to whom the offei's or promises are
said to liave been made. And undoubtedly they liud nn
eff'ect upon the general result of tlie election, which was.
with the exception of tliese mere; off'ers, conducted, so fiU'as
1 have been able to discover, Ujion both sides with genei'a!
purity, and u])on the whole, 1 think, with a desire in
conform to an<l keep the law. If I'elief be given it
must come from the Legislature; 1 can only do what 1
am obligecl to do, which in many cases is as painful to
the ))ersonal feelings of the Judge, apart fi'om the consid-
eration as to which side in jiolitics the i-esjiondent iimy
be upon, as any duty which could possibly be imposetj
upon liim.*
■ Tlio jiiiltfineiit ill this case wus not apiinivcd li.y tiic Court of Appeal in tlie Mu^
ki'k'l casr. (Illlr pp. lOM '.lllil 171.
4-
.1).
', ti>
\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>/<liitii
1)1/ (I ili-piihi rttiiniui'i nljii'ir. - -Mnrkuiij lutllot juiji'i-.
Tlio neglect or in't'gularitios of a (li'i)iity roturninj^ oliii-cr in liis duties
uikUt tin; I )oiiiiiiioii Klcctiniis Act, |S74, will not iiivaiiilati' an clci'-
tiuii, uult'.ss tlicy have atlccted tiio I'l ^tult ol tlio election or eau^^ed
some siiii.staiitial injustice.
Ill III, tlieretdre, tliat the iiegiect of a (Icputy retiirnini,' otiiccr to initial the
hallrjc paper.s, and to provide pen ;hkI ink instead of a pencil to mark
tlnin, would not avoid tlie election.
The following; iri'f'L^ularitics in the mode of markin;,' liallot papers, h' lil
to l)e fatal :
1. Making a .single stroke instead of a cros.s.
-. Any mark w Inch contains in itself a means of identifying the voter,
such as liis initials nr some mark know n as Iteing one used by him.
'\. Ci'osses made at left ot name, or nut t'. f''' light of the name.
4. Two single strokes not crossing.
The following irregularities in dl not to he fatal :
1, An irregular mark in the ligurc of a. cross, so long as it does nut lose
the form of a rross.
-. A cross not m the [irop' r c('m[i.irtmerit of the ballut [lajier, liut
still to the right of the candidate's name.
;{. A ei'oss with a line Ifciorc it.
-1. A cross rightly i)la(;ed, with two ailditioiial crosses, one across the
other candidate's name, and the other to the left.
."). A cross in the right place on the liaeii of t!ie hallot [laper.
o'. A donhle cross or two crosses.
7. lltdlot paper inad\'eitcntly torn.
S. Inadvirt nt marks in addition to the ci'oss.
!). Cr(jss made with pen and ink insfi:ad of a pencil.
Tiic election helil on tlu' l!!Hh .laiin.-ii'V. 1 s? I-. ha\iiit;'
Keen avoided (10 ( 'unnn'iiis Jmi nm/. isT'i. ]i. li. ), a new
election was held, at which the rt'sjiondcnt and Mr. .James
ill
720
DOMINION ELECTIONS.
[A.D.
u
m
:4..
m
■A i h
4
D. Edj^ar wore candidates. The respondent was *leclari'<l
elected l)y a majority of four votes over Mr. Ed«,'ar. A
petition was then iWed, claiming the seat for tl;e latttir,
on a scrutiny of the ballots.
Afr. Ilodgivs, Q.G., and Mr. Edgar, for petitioner.
Mr. MciJarihy, Q.C., and Mr. F. Osier, for respondent.
The objections taken to tlie ballots appear in the judif-
inent.
Blake, V.C. — The parties did not desire that I ^lioiiM
state a case for the opinion of the full Court in respect of
the mattei's raised, which .seemed to me to inv<jlve <iuos-
tions that it would have been well to have had setth-i! liv
the Court on a rehearing. I proe -ed, therefore, at once
to dispose of the petition, so as to enable the party
dissatisfied, if he plea.ses, to appeal the ca.se during the
coming month.
The considerations applicable to two of the fiuestions
raised appear to me to differ from those whicli <!imu1<1
regulate the disposition of the other points discuss..]. ]
refer to those invgulai'ities which aro.se from tin- acts (jf
the deputy returning officers — the one, the use by tin
electois, in sonu' instances, of ])en and ink, stijjplied hy
this oificer in place of a pencil ; the other, the use of
ballot papers in the election not mai'ked by tin- deputy
retuining officer, as contemplated by the Act.
The duty cast upon this oiHcer is cleaily deHned by
the statute. The 2ndclau.se in the " Directions fur the
guidance oi. electois in voting," in Schedule I. is as fol-
lows : " The voter will go into one of the compartments,
and w th a pencil there provided place a cr<jss opposite
the name or nanu's of the candidate, or candidates, for
wdiom he votes, thus x ;" and sub.section 4 of .section 28
enacts that the returning officer is to furni.sh each deputy
returnino; otlicer " with the necessarv materials for voters
to mark their ballot papers." The latter portion of sec-
tion 4;3 deals with the other point : Each elector " shall
;
1874.]
MOXCK.
727
receive from the deputy n.'tnrninf,' otHcer a Itallot paper
oil whicli .such deputy returning,' otHc(;r shall liave pie-
viously put his initials." It is to •«• re^'retted that these
otlieeis, by their eulpahlc nc^h^ct in ouiittiug to ol)serve
these ])lain aiTd sini]»l(' luh.-s, slir^uid cause tlic difHculties
which have arisen in the pres<,'nt case. HaviniLf under-
taken these duties, they should ha\" fulfillt'd them with
Intel liifcnce, cai'e and honesty, and tlit'y may he deservedly
censured for involving tin; cau'lidat'js in the ditliculties
and expense connected with t!ie present scrutiny. 1 1 does
not better their position that possibly thcii- iI•lv^fularities
and mistakes may be covered by a healing clause in the
Act. Section JSO makes the following provision : " No
election shall be declared invalid l*y I't^ason of a non-com-
pliance with the rules enntained in tins Act as to the
taking of the poll . . . oi* of any mistake in the use
of the forms contained in tlie schedules U) this Act, if it
appears to the tribunal liaving cognizance of the ([ucstion
that tlie election was conducted in accordance with the
principles laid down in this Act, and that such non-com-
pliance or mistake did not affect the r«;sult of the election."
The principles laid down by th<- Act seem to l)e secrecy
in voting, and the remo\al of oilHcultit's in the way of an
I'lcctor exercising liis franchise
There seems to be nodoulit that tlie eh.'ction in ([lU'stion
was conducted in accordance with these principles. It
cannot be said that the irregularities complained of
atiected or bore upon the i-esult of the election, nor W(,'re
tliey calculated to do so. It was not tnt-n argued that
any injury of the kind has here aris»fn — that any other
than the pi'ovided ballot ])apei\s ha<l li»'t,'n ust-d, oi- that the
vote of any one not entitle*! to vot<- had lum icccived.
The neglect of the oflficer should not be visite<l on the
elector or cantlidate, unless it is apparent that it has or
might have cau.sed some substantial injustice. Of the
lo2 votes cast in Pelham division, No. 1, it is said 130
are open to tlie oljection that the ballot papers were
not initialed by the deputy returning officer. I <lo not
7-2.S
DOMINION KLKC'I'IONS.
'fi
[a.d.
tliiiik I should li^'lilly distVaiicliisc so lui'^c ji liody of tlic
electors, nor sliould I li^difcly say the in'e.mihirit\- i> 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!in<l side,
o])j)osite the name oi" tlie candidate . . . for wliom
lie intends to vote." •The voter will . . place a
cross o]»j)osite the name . . . of the candidate .
for whom he votes, thus X. It is also to he noted tliat
in the form i^'iven the cross is not e-xactly opposite the
wonl " Hoc," or the wtjnls • Riehaid Hoe," hut appears h.s
follows :
ri.
ROE.
KienAui) Itoi;,
Town of Presfott,
County of (Ji-t^ivillu,
JMui'cliiiiit.
X
I think that every reasonable latitude that can l)e oiven
to an elector as to the form or position of his mark, with-
out a dii'ect evasion of the statutr, shoiild lie oiven to
liim. The Act, howexci'. icnuires that thi- maik should
he a ci'oss, anil it also renuircs that this ci-oss should he
on the rii;ht-hand side, opposite the name of the candidate.
I cannot ,say, therefore, that, so far as the mark is con-
cerned, the elector lias complied with the Act when in its
place he puts a single line I must rather conclude that
the elector, for some purpose, desireil to ;40 men.'iy
through the form of voting, and e\])ressed this intention
hy placing such a mai-k thei'e as evidenced his design of
not complying with the I'eipiirements necessary to allow
iiis ballot to l)e counted for either of the candidates. The
single .stroke does not .show a concluded intention of
voting, for only a portion of that which is the defined
figure is thus made. The votei- is told that if he puts a
cro.ss in a particular place, wliicli is well defined on his
|?n
H
I'
730
DOMIVION PM-KCTlOiVS.
[a.d.
-^T.
i I
ballot pjipcr, Ills vote will l»; at^ccptt'"! ; if he docs not
choosc" to lit) that, 111! loses liis vote. It nay lie that at
first this lulc will woi-k hai-dly ; luit soon a luattci- so
easily eomprcliciidt'd will Uc perfctrtly Uiiowu tlirou'rl).
out tlio t'onutiy. Ill till' moautiiiic, the price paid for
olttaiiiiiii^ secrecy in voting will Iio the virtual ilisfran-
chisenient of a small propoi'tion of voters who have noi
learned how to vote nndei- tlu' pr-est-nt system.
Until the mark loses entii'ely the figure of a cross, 1
think it shouhl he allowed. It may he imi)ei'f(;ctly muile ;
there may he additions to it from nervousness, oi' awk-
wardness, or hy way of endtellishment. Thei'c mav hi'
several lines ci'ossing another line or otluo' lines; the
one line may lie upon the other at any angle ; the one
line may cross tlu; other hut ;i short distance ; y(^t so |()n<''
as it is possible to say the figure can l)e taken as that of
a cross, it would he the duty of the Court to say the
intention oi' tlie eleetoi- is sutliciently detined [n allow
his ballot to stand. As with the form of the cross, so
with its position. I do not think it necessary that it
.should be e.xactly o[)posite either the word "Roe'" or
" Richard Roe." It may be above or below a line ]>rodue(.'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
the vote ; and, on the same principle, any alteration in the
position of the cross from a rigid oUservance of what is set
forth in the Act should be taken as a means of denoting
the ballot as one marked so as to require its rejection. I
think if the Legislature intended this result we should
have found different language used from that which we
have in this enactment.
I
i
'<ll '
ill: 1
P 1
m
732
l)M\flM().\ KI.ECTIONS.
[a.d.
' P'"' •• "" ♦'"• iil.ovc nilcM to scnitiiii/r tlic vot('>
(>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<l anotlier ercjss identical in form opposite the luiiiie
McCallum. On a close inspection it is apparent that the
u[)per cross is the orieinal one, and that the lower, or iMc-
Callum one, is caused merely l»y the ])aper heinn- hrou^ht
into contact with the mark, the ink of which was not dry,
These four votes should tliei-efore Ix' allowed to Ed^oir.
C(ilsfi,,\ Xn. /.— 'riieic was a cross to the left of the
name |)roperly rejected.
uiLini nlli', No. I. — 'I'liere were four votes rejecteil fur
Edgai'. One was im))i'operly rejected, the mark heinn- a
cross to the right hand and op])osite the name. Two
were cro.sses to the left of tlie name, one being simply a
stroke with a pen through the figure " 1 " of the Vfiir
LOO L
" 1(S7')," which ap})ears on the liallot paper to the left ol
the name, ami the Iburth was a siniile stroke. These
three were pioperly rejected.
Moalluii (iiid S/wrhi'ooh', No. /. — There was a miscount.
The numbers returned were thirteen for Edgar and one
liunrb'ed and fifteen foi- McCallum, whereas it should have
been twelve for Edgai- and one hundred and sixteen for
McCallum.
Wainflcit, No. I. — There were four rejected for .Mc-
(Jallum, one of which I allow, being a well defined cross
with a line running through its centre.
I .S74.]
M(»N<'K,
7:i:\
Icouut.
i\(l one
I have
en for
\n Mc-
II cross
Will iijlcrl, Xn. .'.-— 'I'lioi't' Wert' two rrjcctfil WtV Mc-
Calluiii ; oii(> [)r<i|icily, iis heiii;^ a cross to tin- left of tin?
Maine; tlir otlicr ilii|»lo|)c||y, there lieiiin- ;i well tiet'med
cross oj)|)osite '• Mc( 'nlhiiii," ami a sinnic stroke opposite
'■ K<l<;'ai'."
So th.tt-Mp to this point then^ shoiilil he aiUeil to th<!
numluT of votes polleil for I'Mnai", as heiiiy- iiiipi'operly
reji-eted, live, ami there shoiiM lie tleducted for the liiis-
eount, one ; leaving' the total adilitioii to lie nuule foui-,
and thus ;;'iviii;i'- the nuiiilM'r of votes polled for him
thirteen hnndreil and tliirty-threi; ; and there shoidd he
ailded to the lunnher of votes polled for .\h*('alhnii, as
l>eine' 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
<i
734
DOMINION ELECTIONS.
A.I).
i-m^
If"
a cros.s to tlie left hand of the name, di.sallowed ; on(
ballot [)a[)er toi'n, allowed.
Oalnshofo, No. :-i. — Oui' cro.ss not to the I'ight hand
of name, di.sallowed ; a ballot paper inadvertently torn,
alloweil ; two with a ci'oss not to the ri<,dit hand of name,
disallowed ; one ballot paper inadvertently tin-n, allowed ;
one with a cro.s.s properly placed, but with an obliterated
mark in the McCalliin; column, allowed.
Oainshuro', No. o. — One single stroke, disallmved ; two
single strokes, and two crosses lot to the riu'ht hand of
the name, di.sallowed.
Gdl ii.shon/, No. .'. — One ballot paper inadvertently torn,
allowed; one with an inadvertent mark under the cross,
allowed.
Moidton and S/icrbrookc, No. /. — A cross on the back
of a biiilot pa])er for McC/allum. allowed.*
Mo(dtoti iind S/u'fbrooh', No. .J. — One wdth a singh
stroke, disallowed : one with three crosses — the one in
the ])roper com])artment, the othei- across the name Mc-
(.allum, and the third in the left compartment — allowed.
These eros.ses were so placed, I thiidv, because tlie voter
was uncertain where the mark should appear. As there
is a cro.ss I'ightly placed, I do not think the vote should
be rejected becau.se of the additional crosses. One single
stroke, disallowed.
Moidton (iiul Slifi'hrookt.', No. d. — One single stroke, and
two with crosses not to the right hand of the name, dis-
allowed ; a fourth, with the cross to the right hand of the
name in small letters, allowed : two single strokes, dis-
allowed.
Pcl/idin, No. I . — -Two crosses cjpposite name, allowed;
an erased mark o])posite Edgar's name, in addition to a
cross opposite McCallum's name, allowed; one single
stroke, disalloweil.
Pc/liam. No. ■>'. — -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)icciiih<r, ls;'J, (ii)il ,' .'ml .Itiiiiiiirii, IS7<;.
David Ckoss ^7 -// , Pfflfinnc's, v. William M'i'uANLv.
lii'Sihiildi' III .
f'lisiipiiorti'il Ojl'i'i-.'! Of' lirilicvji — /'iii/iiHii/ of 7'riiri l/iiii/ A'.//*'-/(,vf.,'^ -" ]yi(.
Jill'' -"Corrniiilif — Liiiiihi/ .[(jniri/^^.iij, iif'< Apinnl.
A jii'iiiiiiHL' til wiirk t'(ir a \(itur, iiiail<; wifiidnt refireiicc tn the elcrtiiiii
anil as a jnlic. not cviik'nce of l)ril)fry.
^V cliai'uu that the riispon'lont pron-.isod to i,'ivi' a xotLT ciM'taiii work to
do if In; voted tor liini, was disiu'ovtd l)y the e\ i<lence of the ri,'spoii(ii.nt
and anotliur, and )jy the aduiissions of tiie voter made to other
paities.
One li., a voter, liirod a iiorsi; and cutter on the day of tlie tdeotion, and
n-ith M., a sei-ntiiieer for the resp<jndcnt. drove to tlie poll and voted.
I'iie day after the polliiiL; L. and M. returned to tl
leir homes, and
ti
le way
M.
St to piy for tne iiorse and ciitti
llcltl, I. Tiiat tlie iiayment of .SI haviiii,' iteen made after theeleetion, and
not having been ma le eorrnptU' to inlli
respiMK
of
\'
lent,
ic.
the voter to vote for tli
was not a e(;i-rii(it i)raeLiee oi- a wiltnl violation of see. IMi
!np
!l.
'J. That Ms. agency was a limited oi
meat in <|Ue.stion.
Si-mhli , That the term " wilful," as u
in a narrower sense than the term
<l had cea-ed before the pay-
(1 in
• eorr
and that tiie term
iptly-
aptly'
loes not miMii wi
US, cannot be construed
iti ••ec. !I'J, subsee. 1 ;
icKedlv, or iiiMnorallv
Ih
or dishone«tly, but doing that which the l^egislatui'e plainly meant ti
forbid
an act done
>y 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' * ' ' .- '* ' ' . <H»r !**^wJ^'
t-
1874.
ii.\i;i()N.
T-M
til
I
thu statcnuMit to l)u iiiiprolmlilc and that the election contest was
canit.'d (JM Ity the respondent with a seiupiildiis and hdnest einh'avor
to avoid any violation nf the law aL;ainst eoriupt practices, the eharj,'e
was dismissed.
The t'onnci' election for tliis coiistitUfiicy lia\ iiii4' licin
;iV()i(l(Ml( \) ('(till nioiis .Ion rihil, '.M?-'), j). 22), a licw fln-f ioii
was held, at which the rrs]i()ii(lciit was clictt 'I. A jx-ti-
tiou a^ivis'^this el'K^tioii WJis then pi-eseiitiMl, eontaininL;'
the usual eharu'es of corrunt practices.
Ml-. Hrcfor Citiiii'i'ini, (^.C., .lA/'. .I'liiHs Jh'ii/i/, ()X\. ami
Mr. I). Mcdihixiii. I'oi' petitioners.
Ml', illlniiir II 11(1 Mr. .lull II l>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'<i;es of lirihery hy the respond-
ent oi' liis atrents. Kvidenee lias heen ^iven re-^pect Iul;'
foi'ty of ihese charo'es. At the close of the e\id.'nce the
counsel foi' the petitioners confineil the chai^vs to se\-en
cases, and veiv ])roj)ei'ly did so, as the e\id''iie,' ^ixen did
not afford a shadow of sup[)ort to tlie oilier thii'ty-lh.ree.
The ;-e\-en cliar^'es insisted on were the foil' ■-.vini;', \iz. :
I. Driherv of .Idiin Allison l)y .loim IJanisay. an a'^eiu
of res])ondent, " i)roniisin^' to woi k loi- Allison without
charge' -. iSrihery of .luhn Flnellin'j, Ky the re.spoii<lent,
• 1)V ])ronnse of money, or icci'In Iiil;' money for hisxote,
an<l ])ronuse of work or employment aflei' pollinu' <lay."
■i. Briherv of .lohii l.amkert liy.lohn .Mcd.edik an a'jent ot
respondent, "hv promise to pay and ])ayment of t
ra\ cilnu
)riher\- ol
lU''
expenses from (luelpli to polliiiL; plaei'." 4. i
John I'eake iiv W'm. ('aldweli, an a^cnt o|' iv.spoiiclcm ,
■' liv pi'omisi' of money. •'). Urihery ol' .li.lm II. ( 'amjiliell
hv I'r. Iv .1. O^den. an aL;ent < f respondent, ■ hy piomi^e
uf ■■mplovment for himseli' and son. foi- his yotr and influ-
ence, (i. Uriherv of Nathan Uoliert,-^ \>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 ; an<l Ramsay, carrying on
the joke, .said, " Y(>s, 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 <leliverod that
this cliari^o was made, he saw Fhiellini!; liimself, and had
liim also visited l)y Conkrite and hy a Mr. Voun--. and
(juestioned as to the chai'o-e, when Fiuellint; aKva\>. in
the most em))hatie maimer, <lenied tliat any otter or
promi.se had been made to him.
The facts touching the Ijambert charge aiv, that l^ain-
liert lives in Guclph aiid has a voti,' in Stewarton. Mr,
McMillan, a lawyer in (Tiielijh, was employer! to act as
scrutijieer for the respondent at the poll at Acton. Mr.
McMillan asked Lambert to CDUie down to tho election if
he couhl: and Lambei't, who had intended to come down
on some other matter, postponed his trip until the pullinir
day. On the poUinu' day, from obsti-uction of tlie rail-
way by snow or some other reason, it l»ecauie noce.s.sary
to drive from Ciuel[)h to Actt)n in orde-r to get tlnTe in
time. Ml". McMillan and .Mr. Lambert, wlio wett,- to go
tou'ether, went to ditlerent livery stables to trv to find
a horse and cutter — Meridian going to one place and
Laniliert going to another — and it happened that Lambert
found oiu! and hired it. They drove to Acton. Tiie liorse
and cutter were left there. Laml)ert went by '-ailway to
CJeorgetown, and fi'()m that made his v.ay to Stewarton,
where he voted, an<l then maile ins way back to Act<»n.
On the day aftei' the election [^ambcit and MeMiila.i
retui'ned with the hor.se and cutter from Acton to (jUt.'l[)h,
and on the way McMillan gave ijaml»ert S4 to jtay
for the horse anil cutter, and on his reaching < iiielph he
paid that money to tlie li\ery stable keeiier. There ha'l
iKjt been anything said before coming down as to who
was to pay for the conveyance. In tlie respomlents
return of election expenses is included a sum of S1<S paid
ti) McMillan, but it is not shown thai the respondent
iS$
II
1874.]
HAI.TON.
741
i\n<l
[ay to
LlOll.
icton.
lliUa.i
pay
a he
,• n:i'l
who
dents
pai'l
iiKleut
knew anytliiiiL' <'f tlif payinf-nt to LaniLert, or tliat tliat
payment fonncil part of tlif S|,s,
Tills (•]lH^^a■ is mn'tl a^ a viohition of see. fH; of ;}7
Vic, C!ip. {), as tli<' payment of thr ti"i\'t'Ilinn' cxjjtMisi's
of a voter, Avliich hy tliat s».'Ctioii is (Icchircd au unhiwfnl
act, while sec. O.S deehires that any wiiful oU'eiiec against
sec. 96, amon;.,'st others, shall he a eoiiupi piactiee. I do
not tliink the wonl '•wilful/' whatfNci' may he its ineaninj.^
in this section, can l/e construed in a naiiower sense than
the word " corruptly,'' in -ec. 02, siihsec. I. A paymi'iit
of money for the tiavt-llint,' expfn.ses of a voter was held
to be a payment in order to induce him to vote, in ('ooprr
V. Sl<((le ((i H. L. Cas. 74*i;, and, undei- tlie eireumstauces
in tliat case, was held to be a coi-ruj)t payment. The
distinction lietui'di that c^ise, wh<,-re there appeareij to lie
a promise to pay tin' exp<'nses conditional on the \-()ter
votine" for a particulai- candidate, ami a case like the
present, wdiere there is no [ip-tence of a contract, is pointed
out bv Mr. Justice Mellor in his iud-Min/nt in tlie /lultoii
(■(isr (2 ()'M. vjc H. 14"'*;. In (.'n.ijirr v. Shi<h\ Mr. dustiee
WlUes, in his opinion. 'ieiiv»-red in ilie House of Lords,
says, that "coi-i-uptly," in tlie section in (juestion, ''does not
mean wickedly or iminoi-aily or dishonestly, oi' aiiythiii'^
of that/ sort, but with the oV'ject and intention of doinij
that which the Le,i,nslature jdainly means to foiliid."
Martin, B. somewhat more fully detiiies the ex]iression
in the Brdilfofif caxt^ \ n M. vV \\. '\1 , MO) as "an act
done by a man knowinir that he- is doinii' what is wroiiu",
and doinii,' it with an evil obj*-ct. ' 'J'Ik' present eharij,e, if
established, wtiuld in my opinion be an offence undei'
subsec. 1 of sec. !t2, as well a> 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 a<r('iit of the respotnloiit in tins
matter. His only autliority wfvs to iiot as scnitinci-r ni
the Acton poll; and there is notliint.' tVo:n which any
more extensi\'i' authority can be iiiiplie(l ; ami liis a;:^eucv
liail ceased before the payment in (|uestion.
Th(! case of C'ami)bell is a case of the i,fossest and most
dis<fraceful violation of the intention and object of the
enactments a,^ainst corrupt practices. I should fail in my
(hity if I did not report tin.' names of .lohn H. ('amphell
and Dr. 0;^den as havinLi," been proved at this ti'ial to have
been guilty of corru[)t practices; and I trust that in the
interest of public justice and morality, th(^ penalties
provided by the statute may by enforced against them.
Dr. Ogden ai)pears, from the. evidence, to liave occujiii'i]
a position of i'es[)ectability and iniluence, and Cam[)ljell
ap])ears also to have been in a res])ectable positi(jn, and
to l)e of hi;;h standing as an Orangeman. According to
Campbell's own evidence, he agreed with Dr. Ogden for
a payment of SlOO to refiain from voting against the
respondent. Two letters which he produced show fuithcr
negotiations of a (corrupt character, and the other evidence
of OgdiMi's statements induces tlu^ Itelief that t\w ])aynient
of !i?100 was, besides ))urchasing the vote of Cam])l)ell, or
procuring him to refrain from voting, to jn-ocure his inilu-
ence in atf'ecting the votes of Orangemi-n with whom he
had influence, ll is clear, however, that Ogden was in no
.sense an agent for the respondent; tl)e only counnunicatiim
.shown between him and the respondent or liis agents was
his conununication to Mr. Y(Mmg of the Imrgain he had
made with Campbell, when it was at once repudiated liy
Mr. Yimng on the part of the I'cspondent. The only other
acts relied on as showing agency were that, a year before
the election, the respondent paid part of the charges of a
lawyer whom Dr. Ogden had retained to attend the Court
of Revision and County Judge on the revision of the
assessment rolls ; that the respondent once snjiported
Dr. Ogden when he was a candidate at a municipal elec-
tion : that at the first meetini; held in (;a,kville for the
1874.]
HAI.TON.
743
respoTicU'iit us caiKlidatc for election in tlie late contest, Dr.
Oti'ileii was present, and lieiny' ciillcil on liy sunie of tliose
present, spoke to tlie nieetini;'. professing' tliat his own
mind was not nuide up, l>nt 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 ; an<l that in thice oi' i'oui' instances |)r. ()i,'den asked
voters to vote foi' tin' res[>ondent ; 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<Ml<'f
dlVfUi't'
\li)\v un
• otVi'iu'f
,.uiln\>'nt
X\\rv un-
^iiU Nvas
in, nr to
his trial,
.rial after
|en <j;iv*'n.
hntv'l thu
IvihI nniil
[had heon
;ucctHMlr<l
el)ou;4ah
.,1 i\t his
|)te, Nvh>'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)
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^^
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 ma<le up from the gi'and jurjnien; and
that 1. h. i rei)lied that it was no use telling him that,
as on his i'oniier visit he had said it was his fault, and
tisat ho le ' tiitiisf'lf made up the list. To which the re-
spon ''-11* . ijhat he had made up the list, and that it
was the Ree e's fault in not sending it up. I note par-
ticularly that Mel )ou gall only mentioned at a late period
in his evidence, and apparently as ivcollectingwhat had not
been in his mind when he was giving his direct account
of what took place in the room, the fact that the magis-
trate matter had been talketl of, because from the whole
evidence I am sati.stied that it was the pi'ominent if not
the only topic talked of in the room, and this ciicum-
stancc has a material effect on the view to lie taken of
the honesty of the evidence. I may now also mention
that from McDougall's own evidence, as well as from that
of the respondent ami Mr. Uarber, it is jierfectly clear
that McDoUirall was in no amiable humor that day with
his visitors ; that he was or professed to be in a great
hurry, and unable to give time to talk with them, and
was in fact treating them with very scant courtesy oi-
civility; and that it is e.xceeilingly improbable for these
reasons, apart fi-om others which I have to mention, that
he should lui'/e spent the time, or talked in the manner
stated by him.
So far the witness had only approached the charges in
question in what he said about the check. Being still
pressed as to whether there was not .something more, and
"wn^
1874.]
FJAl.TfiN.
•47
at'tor aj,'ain sayiiin' liii ili<l not recollect Jinytliiiii,' more, lie
seouKMl sutldeiily to recollect sometliin;^' tliat liml lieeii
toi';i;ottcn, an«l excluiinetl, " ()li, yes I there was soinetliiniu'
more ill the room. He saiil he woiilil teleifiajth to
Toronto, ami have me a|)|)ointeil a maL,Msti'ate. I sai<l if
it was for the sake ot" votinj,', (;•• to olitain a vote. I would
not accept it ; that 1 wouM not accept it in that way.
He said if I rlid not complv witli that wav he would
report me to the (lovei'ument as liein^a had chai-aeter. I
sai<l if he did I wouM ^'o in defence of my character."
The explanation i^iven liy tin- respondent is that he
had called, as McI)ou;:,all says, not in Decendier, tmt
within a week before the 1 0th .January, aJid that then
McDoULfall had excite<l his symjtathy hy the stoiy of
his ^ri<'vaiK'es, jjfoin;^ hack to confederation, and tellin;^'
liow he had lieeu treated liy the Reform pai'ty. One
complaint was that Mr. IJarlu-r had l»een chosen to run as
local nieiidter and McDougall set asidi', thouyh he was
(|ualiHed for the position, liut tlu' piincipal complaint
seems to have hi'en that in the recent conniiission of the
peace five magistrates ha<l heen appointed in the next
sehctol section and none in his, while he was .is competent
as some of those \\h(» had heen a])pointed. The lespond-
ent (K'nies entirelv what M(d)oui'all says iis to his havini:'
taken the hlame on himself, <»r having;' said that he made
the lists, orliavine; said anytliin,:; ahout lloliin.son's hot(d ;
and he says that in fact lu' had nothiuL,^ to d(t with mak-
inu' tlie lists, further than, as lleeve of Oakville, he .sent
to Mi\ Haihei' a list of names then
McDouuall doe
not live in Oakville. 'i'he ri-ason of the secf)nd visit to
McDouiiall is stated 1 v the respondent as haxinLi' heen
solely to exjilain t<» M(d)ou,Lfall how his name hail iieeii
onntted, as the respondent had learned the ivason froni
Ml', ilarher, to whom he ha<l menti(»ned the earlier inter-
view ; and the res|)ondent states further, (hat Mci)oui;ali
was .so exceedin>4ly excited, an<levinceil such an antipathy
to Mr. Harher, that he took him aside merely to endeavoi-
to ohtaiii an oj)portuintv of heino' heard more coolly, and
4'J
748
DOMINION ELECTION'S.
[a.d. IS74 I
that all tliat took ])lace in the room was tho g:ivin<( of tin-
explanation ; and he entirely <lenies the matters allege*!
in support of the present charges.
I cannot say that the evidence leaves on my mind th<'
MJiorhtest impression of the truth of the charges made Ky
McDougull. T should, if necessary, apply to the charges,
as also to those respecting Robins and Peake, the caution
which has heen on other occasions urged as nect'ssaiy in
dealing with evidence of an unaccepted offer. But there
does not exi.st, in my view, any necessity for resorting to
that rule. I am satisfied from the whole evi'''^nce whicli
I have heard that the contest was carried on l)y tlie
respondent with a scrupulous and honest endeavor in
avoid any violation of the law against corrupt practices.
I regard it as improbahle to so high a degree as to he
incredible, except on the clearest testimony, that the
respondent should have attempted what McDougall
swears to ; and I tind no difficulty in the conclusion that
the evidence of .McDouiiall is untrustworthy, when in
addition to the circumstances to which I have already
adverted, I bear in mind that he was animated by feel-
ings of bitter personal hostility to Mr. Barber, whom he
connected with the personal slights and wrongs, real or
fancied, under which he smarted ; and that the story lu'
now tells was first told for the purpose of damaging Mr.
Barber, and was now only told under circumstances whicli
induce the belief that it would not now have been told it'
it had not been told before. I have not, in this state-
ment, alluded particularly to the cro.ss-examination of
McDougall, and I need say no more as to it, than that it
fully bears out the view which I have expressed.
I dismiss the petition with costs.
Tho petitioners appealed from the above judgment to
the Court of Appeal, but the appeal was dismissed with
costs.
(10 Commons Joiwnal, 1«7C, p. 32.)
: '^■']
A.J). |,^7''S.]
NORTH YOHK.
DOMINION ELECTIONS, isrs.
74f»
NORTH YORK.
Befojie Mh. Vick-Ch.\ncelf.<)U Bl.vkk.
'I'oRONTd, .'.)')•'/ Dirimlxr, 1S7S.
\ViM,i.\M C'komwei.l Oliver rf id., PrtHUnicrA, v.
FliEDKHIt K WlI.Ll.VM StIIANCE, Ersjxnxlrnf.
J'rmHi' J)iposi/ iif.<if nlji—lrriijiilnrilii.
Tlie security in this ease was otTertil, in the sh.ipeof a F>oniinion note for
!><I.(MM), to the R(';,'i8tr;ir of the Court of ( 'hiincery, who st.ited to the
petitioners" .solicitors that heeould not receive it, luit ilirccteil tiiein to
ui.ike piiynient o'' it tlirou;.'h the Accountant of tiie Court in the .same
ni'inner as nioney.s were usually paid into court. 'I'iie solicitors then
paid the money into the hank to the credit of the matter of the petition,
a' cord in L' to the usual practice of the Coui't of Clianccry.
//«'/</, That the deposit of the security, a.s reiiuired I'y the Act, was pro-
perly i;iven.
Th(? pi-'titioii contaiiit'il tlir usual cliarncs ol' ('MrfU]»t
inacticcs, and wa.s filc(l in the C'DUit of C'liaucciv. Tlit'
I'lspoiidfUt HIimI jjit'limiuai y oliji'ftions to llic ]u'titi<)n, a.s
t'ollow.s :
That tilt' pftitioiiiTs linvt' not, as i-f(|uir('ii l>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<ler the practice of the
Couit of Chancery. The Dominion note was then paid
into the bank to the credit of this matter, in the same
50
|1
i
r"
750
DOMINION ELECTIONS.
[A.I.
manni'i- as moiiry.s of ordinaiy .suits in tlic Court -if
Chancery. The certiHcatc of j.aynient was as follows.
"The Canadian Hank of Counncrce, Toronto, Kith (Ia\ mI'
Noveuihcr, 1«7.H.— #1,00(1. Re North Kidiii- County of
York Kli'ftion, ISTS. 'I'his is to certify tliat William C.
Olivci' an<l Ahrani L. Taylor luivr this chiy paiil into ilii>
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<fht hy the Act is to have ^^si.OdO
de])osited to answer any ordei- that may he made as to
costs or otherwise. This lias heen done. The moncv
came virtually to the hands of the clerk, and lie diiccud
its <le]iosit in the court, and it found its way there. The
only iri'ei:jularity then is, that the money was deposited
to this particular account, hut not headed witli the i,a'iiei;il
statement, "The i)ominion Controverte<l ^'lections' Ac-
count of the Court of Chancery. Hei-e ;. j de])osit \va>
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 <luMation.s are yiveii u'eiierally, and not \\ itli
a view to inlliienee any iiulivulnal voter, they wdl not vitiate an
cleciion. 'I'lieie must lit^ >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/</c, that s, \V2 of the Dominion Kleetions Aet. 1 87 1, points to eases
where money, or \aliialile consideration, is given to a voter, and not
to a coniinmiity ijeiierally.
Oh:irges a^ain^t the ie8|vindent, tliat he had | 'oniised an otlico to tiie
.HOI' of a voter, ami a eoiiliact to tno \oter himself, were eontradieti'il
by other evidence, and ilis'-.issed.
One 1'.. some year;;, hcfore th election, c'aimeil tliat the respondent wa.s
indebted to him, luit the n spniident denied all iial.ility, and the
dispute caused a cooliitss b( 1 neeu tliem. One II., luur months lieforo
the ('lection, wasempi(»yid ^>\ 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<! tiie
old a'coiiiit was settled. I*, replied that he iiiiuht piomise what he
liked. U. then took the account to the respondent, who looked it
over and gave his note for it. II. and the respondent never refi'rn-d
to the election, nor to the settlement as atlecting the election.
//'A/, that the respondent had not been guilty of bribery in this trans-
action.
A charge against an agent of the respondent, that he had promised to
pr< cure the office of 'loiice magistrate for one W.. was deniecl by the
agent and the resp )ndent ; and it furtlier ajipearing that \V. had
acted on the coinn'ittee, and voted, for the opposing candidate, the
d.
charge was uismissu
The petition containtMl tlif us'i.al cliiiri;t's ot" corrupt
jiraetices. The election took place on the loth ninl 17th
Septeniher, 1.S7.S.
Mr. J)' Alton McCiuiluj, (.^.C, mul Mr. T. (J. Blurkdoi-k,
for petitioner.
Mr. Robinson, Q.C., and Mr. Edgar, for respondent.
'4
I
mm
H.i.:bi|i||
m
752
DOMINION ELECTIONS.
Lai.
TIm! evidence att'ectin*; the charges of corrupt practices
is set out in the ju<l<^nient.
Gai/I", J. — The petition contained cliarj^es of hrihery
an«l corru])t jiractices hy the respondent and his a^'ents ;
it did not chiini the seat.
Then^ were in all Hfty-three cases mentioned in the
particulars, Lo which sevfM-al otlx'rs were allowed t(» lif
added durini^ the ti'ial.
The charj^es Hrst procecMled with had retVjrence to per-
sonal acts of responilent. viz. : A ,L,'ift of trees to the
Roman Catholic cemetery of the villn;;;e of Osluiwa ; dona-
tions to a reliijious hody helonj^dnji; to that comiiiuninn
called " The Sisters ;" ^ifts to ritle associations; mniiry
spent at picnies ; and a sul»sei'ii)tion of iji^oO to discharj^'e
the del)t on a church. The i-esponilent was the only
witness examined as to these chari;cs, and stated that in
.lunuary or February previous to the election, seeing the
cemetery in a very hare con<lition, he had otfereil tlic
Roman Catholic priest ti'ees to plant if lu^ wished tlu'iu.
The otiei- was accepted ami the respondent ordered tlicin,
and on their ai-rival paid for them. The cost was S|;U).
He stated that it was purely a voluntary oHer im his
part.
As refjards char^jc No. o.'!, rcispr. ident admitted that lie
had in the winter of I (S77 furnished provisions to " The
Sisters" to the extent of S«)<) ; he state<l also that ht.' had
lu'en in the hahitof givinL,^ them money when ai)plied to,
and had also paid the half of tiu' taxes on their house,
the other half having been remitied by the corporation.
As regai'ds chai'ges 4<S and 41), respondent admitteil
that he had sul)scribed !?•')() to a RiHe Association for a
specinl ])iize, to which a year oi- two before he had given
!i!'30. No reference was made co the.se latter charges,
either during the ease or in the sununing up of the learneil
counsel.
As regards charge No. 52, respondent achnitted that ho
had subscribed $50 in payment of a debt due on this
1878.] SOUTH ONTAIMO. 7.')^^
clmicli. Nothini^ was saiil in rt't'ercnci' to it timing' the
case or in tlir sunniiin<^ up.
As Inspects nioiitsy spent at tlu; picnics, lie admitted he
had spent altout i^'-U) at one held hy tlie Jionian Catholics
on 1st 'Inly; and on the same day he attended another
lield l»y the Sons oi' Kn^dand Association, at which he
spent the sum of J:?! 7"). At this last thei-e was, what
appears to In; very common now in tlu' country, contests
for prizes de|)endent on votes cast for particular ])er>-;)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<litur(' in anticipation ol' an
flection, Ml'. . I ustit'c HIackhurn saiil: " Tlicrc is no law
yet which says that any lavish expenditure in a nei^di-
l)orliooil, \vit)i a view of 1,'ainini; intluence in the nei;fh-
horliood and inthiencin^^ an eh'ction, is ilh'i;al at all. In
order to constitute anything which wouM he a corrupt
pi'actice in respect of expenditure of that sort, it must he
made with a view of intiuencinj^' a i)!irticular V(»te. If
such an i-xpenditiire is made at a phice, with a tacit umlci-
standin<( of this kind, ' I will incnir hills, and spend my
money with you, if you will vote for me,' tliat not lieini,'
the side on which you intende(| to vote : if it is intenijed to
produce that eMect Uj)on tlie Note, it amounts to hrihery.''
In the Windsor casi^ (2 ( >"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 <fave away these things. Hut there
is no harm in it if a man has a leijitimate motive foi'
doint;' a tiling', altli(»u^h in addition to that he lias a
motive which, if it stood alone, would he an illegitimate
one. He is not to refrain from doini; that which he
mii^ht lei.;itimately have done, on account of the existence
of this motive, which hy itself would have heen an
illejifitimate motive. If the re.s])ondent had not heen an
intending candidate for the horou«>,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 <lid ; and the fact
that lie did intend to I'epi-e.si.'nt Windsor, and tlioujflit
|L(ood would he done to him, an<l that he would jjiain
popularity hy this, does not make that eorruj)t which
otherwi.se would not be corrupt at all."
In the Boaton case (2 O'M. ^ H. 160), which was also
a charge of charitable gifts for a corrupt purpo.se, it ap-
peared that the respondent, who had formerly represented
IH7.S.]
soirii (t.\T.\i!i(>.
7.".
tlu' boroui^li, lia«l <lt'tt'niiiiUMl to tlistrilnitr a lar^'«' (|uuiitity
of couls iimon",' till' poor in tin- lioiout^li, uiiil \vi'(»tr a U'ttcr
to a jft'iitlciiiiin t'X|)r('.ssiiii,' tlial ili-siiv. 'I'ljc coal Nvas>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, an<l
intention of sueurini,' a vote, is corrupt within the mean-
in;;- of the Corrupt Practices Act, ls.'»4. It mi^ht he a
douhtful (piestion uind it is one which was discussed in
the Wiiiilmr cdHf) whetlier, assuming' two motives to exist
— the one heini;' i)ure, and the other with the intention to
coiru])t — you could exclude the eori'Upt intention and
rely wholly uptju the j)ui'e intention. 1 think that must he
rather a (|uesti<jn of de^n-ee. A man may wish toliechai'i-
talde in a nei<^hl»orhood, hut at the same time he may
have an eye to his (»wn interests ; und there nnist he in
fact some limitint; line, incapalile of Iu'Iul;" defined in
svoi'ds, whei-e the two things come to a nearly eipial Ital-
ance. We know, for instance, tliat ])ersons looking for-
ward to he candidates foi' Parliament are generally pretty
liheral to the charities in the district, an<l such liherality,
as far as I am aware, has never heeii held to vitiate the
election ; I suppo.se upon the grounds that such persons
do not select voters, as contradistinguished fi-om non-
voters, as the objects of their charity ; that the object
itself is good, and that although the donors may in so
bestowing their charity look to their personal interests
and personal ambition, still a man is not to be injured in
an object of personal ambition, merely because he does
good which perhaps without that stimulus he might not
^Frnj
ni
r
Ui.ii.
7:.({
DOMINION RLECTIONS.
[ad.
luivc Itt'cn iinlucfd to do." The IciiiJic*! Juil^fo H('<|iiittt<l
the rcsjiomlfiit of )k'IS()MiiI cornijitioii, l»iit lu'M that the
act of tlic ii;,^'nt, in distrilmtiii;,' tin- couls in tlif way Ik-
did. niiuli' it an a^'cncv t'(»r s«'curin;j; votes for liini, am!
was tlinc^foif coiiupt within the nicanin;,' of the statnii'.
I refer j)aititMihiily t<) this case, as it was relied on
strongly ))y i»olli the learned counsel in their very ahle
addi'esses; and it apjx'ars to nie to sustain the arji^unient
that so JouLT as (rharitaMe doiuitions are ijiven ^fenerally,
and not with a view t<» inlhiencc any indivi<luai \citei',
they will not vitiate an election. There nnis^ he such
lar*;'!' and indiscriminate i^ifts as to leave no tJouKt on
a'ly one's mind that the ellect had heen to corrupt the
pnltlic mind, or, in other- words, to constitute L,'euer.il
hrihery. In the l^n Ih/fonl msr I ()'.\1. \' II. I,')) Mr.
Justice Willes said : " It is unnecessary to ;l;o into any
iiKiuii'V here as to yciierai hrihei'v. We have no evideiiec
whatever of the prevalence of ifeneral hrihery at the elec-
tion. l)Ut do not lie mistaken, and suppose that hecausi'
these in(|uii'iis tiuii upon imlixidual cases, ami upon
whether these casesare ti-aced to the mendter or his aLfcnts,
that j^eiieral corru[)tion (piite apait from acts of the inem-
bcrs or theii' agents would not have the effect of vitiating
an (dection. It chiarly would, because it would sliow that
there was no pure or free elioice in the 'natter, that what
had occurred was a sham, and not a icality. This, however,
is out uf the (juestion here. There may also hi' hiiheiy
80 large in amount as in itself to furnish evidence, not
indetMl of general hiiljery, hut of hi'ihery coming from a
fund with which it is impo.ssihie, as a matter of coinin(M)
sensi", not to concluilt' that ilie mendier cr at least an
agent of his was acipiainted. In that ca.se the p)0[»er
re.sult would he the vitiation of the election, l»ecause the
bril>eiy 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 <liH('rfiit. It
was thrrc provcM that hiiifc siiiiisof money wcic illcj^fully
spent, ami there coultl he no <loul»t corruption ha*! very
generally ])revailei|, no niueh ho that it was aihiiitte'l the
election was voi<l. MonoNcr, in 1,'ivini;; judj^nient, the
learned Chief Justice says : " We have no int'orniati<»ii as
to wheie these churches are, or lUiythinif as to the prolia-
hle etfect of the suliscript ions tliereto (»n the electors ot
the ri<lin;,f. We woul"! naturally have looked \'">- 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 <j^ivin,n money to these cluu'cles on
pievious occasions, oi-, as we timl in some of the l'!n;;lish
cases, that as a repi-esentative he was in the haiiit <«!' sul)-
scrihini;' liherally to charitahle j)uri)oses al l'hristma>
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 uncontra<licte<l, ami as it
was of .such a .s[)ecitic nature that it could havi? i»een, I
have no douht tluit it was true. I thertd'oi-e find that
the corrupt practices lu'ic chai'^^ed have not heen proved.
Charge No. .S7, that the respondent hribed one William
Thomas Dingle hy jjronii.se.s of office for his son. There
was also a further charge — No G of the addetl charges —
that the respondent promi.sed him a contract if he would
support him.
H'
il
7:>S
DOMINION KI.KCTIONS.
[A.D.
Tlu'si! two cliai-j,'('.s luav J«' coiisidt-riMl t()<,'(>tlii'r ; aiiil if
the evi<I«Mictj ,i;ivt'n I'y DiiinK' hiinsclt' lie ju'('('i)t('i| ;is tnif,
tlicy iiiii^ht lit' considcicil as proven ; luit In- is ('(intiu-
iii every particulai'. He saiil on his re-exaiiiiiiati(Hi,
ilicted
ret'orriii^ toacoiivei-satiuti which he liail with the lespond-
eiii towards the end of June, " Mr. (Ih-ii said to <iie that
^lioulo lia\-e
th
and
he Would do exervthnu
coll
Idf
or nie, or luv so
»n, il' I woidd support him
in
liis oxaniination he says, in re|)ly in a t|U('stion liy Mr.
MeCarthy as to whether he hail ha<l more than one inter-
view or conversation with Mr. (lien respecliiiL;' his son,
.V(> ; 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
</;,/.
Mr. (
'/'7 tl II
iarxin.
his lirol her-indaw. say-^, rel'i rriui;' (o a eonxersation witii
.Mr. (Hen which had taken i>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 <l<) so, anil kni'W that it hail lirrn iloiir. .Mr. Dinn'h"
states that, .Mi'. ( Hen a-kei| him it' he hail leceixeil a letter
from (rarvin, aii<I he replieil that he hail. .Mr. (Hen
denies that he ever asked him it' he had received sr \ a
leitei'; in Tact, in his ori'.^inal e.xiiminatioii. lid'ore any
other e\ideiice had l)eeii ui\ en. he swears that to th" hest
<)[ his recollection no >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 <Iai'\in) to keep them i|uiet. for I did not expect them
to \ ote for me ' ( lar\ in li:i- himself ^i\ en us a detailed
acconiit of what took place het ween himself and .Mi\< Hen,
the resnit hein^' that on his return to Hamilton lu'
writes the letter already ret'erred to. We must therei'ore,
so far as .Mr. (iarvin is concerned, consider that what he
did is contained in the letter, which in no way refers to
the electioji at all. I therefore considei- charge No. :'.7 is
not pioved.
Then, as re^ai'ds No. (i of the added charL;es, it must
he horne in mind that the conversation in which this
pronii.so.is .said to lia\e taken place wa> 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<l to do, he could not liuvc
expected me hut to vote; against him; hut 1 would uut
have done any more than that ; he could not expect Imt
that I would vote against him ; give my sik'ut votf
against him." He ad<led, " Now he was going to do all
he could to defeat Mr. Glen." Dingle, on his previ()U>
examination, on Iteing questioned as to his conversations
with the aliove witnesses, had stated as respects Gliddon,
"That he ha<l never told Gliddon that Glen knew his
polities, and never asked him to sujijtort him." A>
resj)ects (lall, he said, "1 <lo not icnow that 1 toM him
1 would support Glen if 1 got the contract. I .say most
positively 1 never told My. Gall to my knowledge." We
find also that at a picnic which took jilace on ihe 1st .hily.
t<j which I have already referred, on a contest for a pitcher
as a ))roof of puhlic popularity, Dingle cast one thousand
votes for Mr. Gil)l)s, as against Mr. (}len, which a[)pears
to me to he entiiely inconsistent with his having receive<l
the promise of a contract on condition of his .supporting
Mr. Glen at the coming election. The contract was in
i-ealit',' given to aiK^ther per.son ahout the end of August
or l)eginning of Septemher, shortly previous to the elec-
tion. It is therefore plain that, so fai' as Dingle was
concerned, the lespondent acted in a manner directly
contrai'v to what Dingle has sworn he promised to do
1— and <lid so at a timt,' when, if he expected to secure
his sui)i)ort hy virtue of the oti'er of the contract, he took
the most eti'ectual means t(j arouse his iictive oppo.sition,
which he did. I am of o{)inion that this charge is not
proved.
Charge No. 81, George H. Pedlar hi-ihed hy Mr. Glen
hy .settlemcjit of a claim for money. It appears that
some yars hefore the election Mr. Pecllar had liad a
transaction with Mr. (}len respecting some wiingers, and
Mr. Pe<llar contended that Mr. Glen was indehted to him
l«78.]
SOUTH OXTAKIO.
7()1
for a deficiency of tifty-tliree wrinjjfers. Mr. (Jlen at tluit
time denied all lial)ility. This occasioned a coolness
Ijetweeii them, and they had not spoken to each other
for some time until the he^finninLj of 1.S7H. A person hy
the name of Hawthorne, who was employed both hy the
iH'spondent ami l>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 sai<l to him atiout the settlement of the account
in relation to tlu' ideclion, and that the sett li'nient was
never hinted to him as leferrin^' to his election. That
statement is coi-roliorated hy the evidence of Hawthorni',
I theri'fore find that the charn'e is not [)ro\ciI. i may
ad<l that there was no e\idence that Hawthoine was an
agent of the respon<U'nt as ivspects the election.
On the morninu of the last day of the trial Mr, Mc-
Carthy a))plii'd to add another charn'e of eoriupt practices
hy an aeent, by prouuse of otHce to one Wallace, to induce
him to vote I'or, or r<d'rain from votini^ ae^aiirst, the re-
spondent. This a{)plication was supported l)y an atKdavit
Hi
762
DOMIXIOX EI-EOTIONS.
[a. I).
of tlic LCntlciiian wlio luid bt'cii en^ancd in |)i('])arin<f ili^.
cvidtMice ill su|)[)i)it oF tlit' jx'tiliuu, that tlii' cviilt'iicc IukI
come to liis knowlcilnc only tliat inoiniiii;'. Tlic cliar^c
was allowcil ti» lie u<l<lt'<l.
In the Clnllniliiiii, rr/.sr (I O'M i*;- H. ((4.), Martin. 15.. in
reference to 1)rii)inL;' ''.y otHee, says : " Wliere llie cn idcncc
as to l)iil>efy 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<l the ])Ur|)ort of his I'videnee
is that Hi!4\L,'ins ])r()inise(l liim Mr. (Jh-ns supi)orl, and
asked him to ivfrain from votinij f(»r Mr. (lilihs himself
and get others to refrain from votinji; for him. This is
positively denied hy ITii>'!>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 aske<l Wallace
to iihstnin fiom voting-. .Mr. (Jlin >ays 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<i
il until t\ie
1H7.S.]
KAST HASTINGS.
7(5;
voter came Imck with his hallot, aivl then I saw that tlie
same number ami my initials were on the ballot that the
voter brought back to me, and then T tore up the eounter-
foil and put the ballot in the box. The number wa«
taken at random without reference to the voters' list,
and was a private mark of my own. I did not in any
case put the same number on the ballot as was the num-
ber of that particulai- voter on th<' voters' list. 1 could
not identify a voter by the numbers on the ballots, nor
could any one else.
In this division it was found that .'i') of White's and 2
of Ayleswoiths ballots corresponded with the inunbers on
tlie voters' list.
Mh'liiii'l Li-!inrgc, deputy returninn; officer, N(». '>, 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 an<l j)ut the
numbers on the ballots.
In this division it was found that in the voters' list
kept by the deputy returninif officer, the names of the
votei's wei'e numbered up.toi>2: 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 «,nv<!n altovc : No. I,
Hungerfoixl, Ayle>s\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., <rntl Mr. Kmuitimjur, for
respondent.
Blake, V. (J. — All the cliar<,fe.s have been disposed of in
this case except those connected with Sanniel J)ay, as to
which the followintf is the material testimony :
The respondent in his evidenct; says of him : " Mr. Day
lives near town. He was nominated, and retired in my
t' !l
.1
If
771 •
DOMINION KKKCTIONH.
[a.d.
favor, lit- askiMl the <l<'|('(>;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<tji : " I treat fre<|uently ; \ liave done so ever
since I b(H'ame a man. People asUed me U) have a j^lass
of ale and I retui'ned it. I am \erv fond of comi)anv. 1
*. I 4
always ask other people when about me to driid< ; this
is my hahit I keep no li(pior in my house. I never
drank alone in my life. I never offered a man anything;
with the intention of intluencinn' his vote. I tntated
Wooley. I don't know the occasion to which he rtd'erred.
Maylie 1 asked him into I'enwardens. I never held out
an inducement. He told me he was not i,^)ini;' to vote.
I said, ' 'I'hat is rif^ht.' I lu^ver said auythint;" about in-
fluenciuif his vote. Mr. Arkell cautioned me about the
treatint;'. I said it was none of his business, and that 1
would do as I had always done. I knew the law was
.strict, and that 1 dai-e not treat with the intention of
infiuencin<^. I mij^ht havi' treated Mr. Li,i;htf<Jot and Mi.
Mordinyer. I do not think you could influence either
of tliesc men. Sinclair is much about the taverns ; lie
drinks a good deal and does not treat. He takes an active
part in polities. He introduced tlie subject. I had not the
election on my uiiTid when I took the electors in to treat.
m
IH7H.]
KAST KI,(.IN.
771
IR'VlT
rt'iitiMl
I'tM'lt-'il.
(I out
Votl'.
)\\l in-
it tlie
that 1
\v was
:i()n of
11. 1 Mr.
either
iiH ; he
active
lot the
• treat.
I shoultl have likril to have stni Mr. Ai kell t U'cteil. I
inentiotieil it wa.s iH-ces.saiy to havt- a change in the ;fo\ >. iii-
iiiciit. I <lo more work outside than on the platt'oiiii."
['I'he evidence ol' the other witnesM-s was conliriuatorN
of Days usual practiei' of in liscriniinaic treatin;;.]
I \\!\\i' |icrusi'(l ail the eases i(» tvhieli I have I n
rot'erre(|, aini any others that I have iieen aide to find on
the siihjeet of treating', and fioiii them (|unte the follow-
inj^ passayt's in the Knulish eases hearine- on the et)M-
struetion of the seetiun in (|Uestion, as to treatiuLi; Mr.
.lustiee Willes in tlie T,ninr,,rtl> 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<lucement of meat or drink.' Mr. Justice
Blaekljurii, in the Wnlli nujnril I'usr I O'M. iV II. ■")S),
.says: "I think that what the liCi^islature means hy
the word 'corru|)tly, for the purpose of inllueneiui,'
a vote, is this: that whenever a candidate is, either
hy himself or hy his ayeiit, in any way accessoiy to
providiuLC meat, dri)ik, oi' eiiteitaijunent for thi- pur-
po.se of hein_ij elected, with an intention to produce
an ett'ect uj^on the election, that amounts to corrupt
treatin*;'. VVIuMiever also the intention is hy such means
to j^ain po{)ularity and theivhy to etl'eet the election,
or if it he that persons aie afraid that if they do not
j)rovi(h.' entertainment ami ilriid< to secui'i; the .str.»n^'
interest of the ))uhlicans, and of the per.sons who like
drink whenever tlun' can <a't it for nothing, thev will
hecome unpopular, and they therefore piovide it in order
to att'ect the election — when there is an intention in the
mind, either of the candidate or liis agent, to jjroduce
that eti'ect, then 1 think that is corrupt treatine-.'"
Again, in the Coventry case (1 O'M. it H. lOU) Mi-. Jus-
tice Willes .say.s : " When eatint; and drinkiiii; take the
m
i
f'd
:f^n
772
DOMINION KLKCTIONS.
[a.d.
form of enticin|j[ people for tlio purpose of inducinLf tlu-m
to change fclieir inintls, and to vote for tlie party to which
they do not heloni,', then it becomes corruj)t, and is foi--
hidden hy tlie statute. Until that ari'ives, the meie fact
of eating and <lrinking, even with the connection which
the supper had with i)olitics, is not sufficient to make out
corrupt treating." Again, in the liodtnin nixc (1 ()M
k, H. 12.')): "The Judge must satisfy his mind whethti
that whieli was done was really done in so uiui.sual and
so suspicious a way that lie ought to impute to tlu'
person who hp -. d(jne it a criminal intention in doing it.
or whether the circumstances are sucli that it nsay fairly
be imputed to the man's gener(jsity, or liis profusion, or
his desire to express his good-will to lho.se who honestly
help his cause, without resorting to the illegal means of
attracting voters l»y means of an appeal to their appetites. "
Mr. Baron Ma.'tin says {Brajlford <;af<t\ 1 (^'M. & H. 37):
"What is the exact meaning of the word 'corruptly:*' 1
am satisfied that it means a thing done witli an evil mind
and iritention, and uide.ss there be an evil mind or an
3vil intention uccompanying the act, it is not ccnruptly
done. ' C/oi'ruj)tly' means an act done by a man knowing
that h(! is doinu' what is wrony;, and doing it with an evil
object." In the UrhfJeld case (1 O'M. & H. 25), Mr. Jus-
tice Willes says : " It may be doubted whether treating in
the sense of ingratiation by mere hospitality, even to the
extent of profusion, was struck at by the common law.
It is, however, certain that it is now forbidden undei'
penalties by the I7th and bSth Vic, c. 102, whenever
it is resorted to for the i)iirpo.se of pampering people's
anpetites, ami thereby inducing electors either to vote
or to abstain from voting otherwise than they would
have done if theii- palates had not been tickled by eating
and drinking supplied by the candidates."
I should have Iteen glad if 1 could have found that it
had been held in this country that the ordinary ti'eating,
as here practised, was a means of ingratiation, of enticing
or inducing, in a way repugnant to the spirit of our
w
[ mini I
or an
ruptly
()\vin»i
m evil
r. Jus-
\n<f in
to lh<-
11 law.
uiuU'i'
enever
eopk's
o vote
wouM
eatin<i
j that it
•eating,
Inticiiiii
of our
1^
1^
1878. 1
KAST EI/ilN.
773
election laws, and wliicli, ii" induli^ed in during'' tlic canvass
by either the candidate or his ai,'ent, would be a reason
for setting aside the i-Iection. It is true that the cases
to which I shall refer were disposed of under an enact-
ment differing from that on which this case depends, but
the law for the guidance <^f electors and candidates has
been there expounded, and principles have been distinctly
laid down by which I am bound.
In the Qli'iKjti rrji i-nse {niitc p. 8, s. <"., Jhoiujli on Klvr-
tiovs. p. 22), Hagarty, C. J., uses the following language :
"I feel bouml to .say that the eviderice given by the
respondent seemed given with great candor, and favoiably
impressed me as to its truth, and 1 fe-.l wholly unable to
firaw from it any honest belief that he provided this
entertainment, consisting ap])ui'ently of a Lilass of li(|Uor
all around, with any idea that he was then'l»y seeking to
influence the election or |)romote his election in any of
the senses refei-red to in the cases. He was unaware of
the state of the law on this su])ject, as he says. He is not
to be excused on the ground of his ignorance; but the
fact (his ignorance) is not wholly unimportant as bearing
on the conunon custom of the country — too common as it
unfortunntely is— of making all fi-iemlly n\eetings the
occasion or the excuse of a diink oi* treat. The strong
impression on my mind, and I think it would be the inir
pression of any hon. -jury, is that tlu^ treats in (jUestion
were just gi\'en in the conunon course of things as fol-
lowing a conunon custom. In the appropriate language
already cited the Judge must satisfy himself whether the
thing which was done was really done in so unusual and
suspicious a way that he ought to impute to the person a
crimiiuil intention in doing it."
In the Kliigsfon cdse (mtfr p. <i28, s. c. 1 1 Can. L J. 2;^),
Ricliards, C.J., says : " The gi'nei-al practice which })revails
lere, amonff:
st cl
asses o
pe
rsons mi
my
of whom are voters^
of drinking in a friendly way when they meet, would
require strong evidence of a very profu.s<' expenditure
of money
in drinkintr, to induce a Judge to say that it
■
I 111
:!:!!!
774
DOMINION EI^ECTIONS.
[a.d.
wa.s corruptly done so as to iiiako it bribery, or conic
within the nieanin^f of ' treatinjjf ' as a corrupt practice at
the common law." The learned Chief Justice adds : " I
must confess to have been very nnich einbariusscd in
ooniinj^ to a conclusion in this mattei- satisfactory to niv-
•self. If it \vei-(! not that I felt compelled to look upon
this branch of the case in the natui'e of a pcnial pi'oceedinir,
re(iuiring that tlie i)etitioiuT shouM ])rove his allegations
affirmatively by satisfactory evidence, and that he minlit
have i^ivon i'urther evidence to have repelled some of the
suifgestions in I'espondent's favoi', if such sui^^i^'estions weie
not reasonable ones, I should be bound to decide aL'ainst
the respondent: l)ut lookin<; at the wliole case, I do not
think I ouifht to do so. If it is found from experience
that the ()r(jvisions contained in the present laws now iti
force in the Dominion and in Ontario do not eti'eetually
put an end to corru])t practices at elections, and that in
ordiir to do so it will be necessary to l)ring candidates
within tlu' hiifhly penal_ provisions of declaring them,
when they violate the law, incapable of l)eing electeil or
holding- office for several years, Election dudii-es will
probably find themselves compelK'd to take the same
broad view of the evidence to sustain the.se highly penal
charges that experience compelled connnittees of the
House of Connnf)ns to take as to the evidence necessary
to set aside an election."
In the .\\)iili Middlesex (•<(hh {((iite p. .S7(), s. c. 12 Can.
L. .1. I.')), the Chancellor say.s : "Tlien there is the custom
of the country — not to lie commended, but still to be
taken into account— to take drink in the bar-rooms of
taverns, and to tioso in the shape of treating some or all
of those a.s.sembled with tliem in the room — the ' ci'owd
a.s it is often calleil. . . The respondent is a farmer, and
ha.s for the last sixteen yeans followed the business of a
i-actice of drovers to go
say,'
I»
to taverns as the best place for meeting with farmers and
hearing of cattle ; that such has been his practice, and
that he has alway.s been in the habit of treating at
i
ill
1878.]
EAST KL01N-.
77;
taverns in tho course of his husincss, and this is eon-
finned by the evidence of otlier witnesses. He states
iluitwhen he became a candidate he canva.ssed personally
throu'di the ridinLf, and went to the tavei-ns as ijood
places to meet with the electors ; tluit on these occasions
he .sometimes treated ; sometimes friends who were with
him treated ; and the treatinir was sometimes bv otliers
who were not friends, and the treatinu' was jieneral to all
who mi^lit liappen to be present. As to its extent, he
.saA's it was much less than was his habit in the course of
Ids busini>ss— not more, he says, than one-tifth as much.
He deides emphatically that he treated witli any view
of intluencing voters ; that lie made no distinction as to
whom he treated ; that he had not taken legal advice ;
that he meant to obey the law ; and that he thought that
in what he did he committed no infraction of the law."
The learned Chancellor continues : ' 1 thiid< that the
respondent, in doing what he <lid, was treading upon
dangerous li'i-ound ; but bt'fore hoMiiiL;' that his seat is
thereby avx)i(letl and himself disijualified, I must be satis-
tied that what he did was done witli a corrupt intent,
and in iudo-infj of this the 'jem-ral habit of treatini; in
the country, and the respondent's own practice, niay
properly be considered. It seems all to come to this :
treatiuLT is not prr se a corrupt act. The intent of the
act must be judged by all the circumstances by which it
is attendeil. If in this case the evidence led me to the
conclusion that the respondent did what he did in order
to make for himself a reputation for gooil fellowship and
hospitality, and thereby to intlut'iiee idectois to vote for
him, 1 should inelini^ to think it a species of biibery
wluch would avoid tlu' election at conniion law ; but
upon a careful consiileration of the evidence it does not
lead me to that conclusion. There was nothing wrong in
the eye of the law in the r('spon<lent making his canvass
by meeting the electors at tavei-ns, aail he does not seem
to have abused the occasions of .so meeting them by seek-
ing to obtain their votes by pauipering their appetites for
drink, or by other undue means."
r I;
' :rl
'^1
770
DOMINION ELECTIONS.
[a.d.
By sc^f'tion OS of tlio Dominion Elections Act, I.S74., it
is enacti'(l that " The ottences of hril»cry, treatiiitf, or
unchif inHucncc, or any of such offences, as (leHiieil l.y
this or any otlicM- Act of the Parliament of (Janada, shall
be coi'i'U|)t practices within the meaning of the provisions
of this Act:" and hy Sv-ction \)^ of this statute the
ofience of ticating is tlnis detineil : • Kvery candidate
who corruptly, by himself or by oi- with any person, oi'
by any othei- ways oi- means on his behalf, at any time
either l)efor(! oi- during any election, directly oi- indirectly
giv'es or provides, or causes to be given or provided, or is
accessory to the giving oi- providing, or pays wholly or
in part any expenses incurred for any m»^at, di-ink,
refreshment, oi' provision to oi- for any person, in order
to be elected, or for l»eing elected, or for the purpose of
corruptly intliumcing such person or any other person to
give or refrain from giving his vote at such election, shall
be deeined guilty of the ofience of treating." So that to
make this offence a corrupt practice there nmst be the
corrupt giving for the purpose of coi-j-uptly influencing.
Treating is not in itself illegal, and in considering whethei
it is a corrupt practice or not, it is under the authorities
proper to look at the habits of the man accused of the
offence, and endeavor to ascertain his intention in the
treating complained of. It is not to be inferred that the
act is corrupt sim})ly because an election is going on.
There is no doubt that with the agent l^ay treatiiig
was an ordinary act (if everyday life. Whenever and
wherever the occasion offered it was in<lulged in. He
is described as a man who did not do nmch on the i)lat-
form, l)ut who was a powerful man outside. He appears
to have thouglit that there was not much in himself to
commend him to those he met, and at once he invariably
turned to his potent friend the bar, and, by this more
than questionable motle of procedure, sought to stimulate
or form a friendship between liimself and those he met.
To this low conception of hi.s own powers he added the
view that those he met in his county were guided by a
k it
, or
^ions
Idat'-
m, <)V
time
■ectly
, or is
Uy »>!'
Irink.
order
lose ot"
son to
\, shall
that to
>e tht'
iucm<i!
hi'ther
loritit's
of the
in the
,hat the
on.
I'l-atini;
er .and
n. Ho
w plat-
appears
self to
:ariably
lis more
iniulate
he met.
ded the
ed by a
1878.]
EAST FAAilS.
Ill
standard no higher than his own, and ho appears for over
twenty years past to liave snccessfully carried on tliis
vile and degrading system of universal treating, which
has been found to be so debaucliing in its effect through-
out our Province. This man, who has l)een a candidate
for vaiious offices for the past twenty years, and has
freely eniployed treating as an element in his canvass,
becomes an agent of a candidate who no doubt uses him
as a man whose influence, created by the use of liquor,
will be sustained by the .same means, the benefit of which
will accrue to him in the election contest. This treating,
if found in one not theretofore given to this vice, would
have been sufficient to have avoided the election, but no
doubt the respondent and his agent were informed of the
decision.-s which sanctioned, under certain circumstances, a
large amount of treatmg, and they acted on tliese cases,
and I think are now entitled to shelter behind them. Al-
though Arkell was apparently afraid of the consequences
to himself that might arise from Day's treating, he never
repudiated him as his agent. On one occasion the can-
didate and another, a friend sent bv him, remonstrated
with Day as to the probable consequences of his treating ;
but I cannot say that Day did more in the way of treat-
ing dui'ing than before the election, nor that he used this
means of influence corruptly within the authorities. He
employed this, as he ordinarily did, as his aigument, and
he did not use it more or ditt'erently one time from
another. I think h(! went as far as he could go without
bringing himself wifbin the clau.ses of the Act which
avoid elections for corrupt acts. I cannot say either that
there has been " any wilful offence " in the giving, or
causing to be given, to any voter on the nomination day
or day of polling, on account of such voter having voted
or being about to vote, any meat, drink, or refreshment.
What was done by Day at the nomination cannot be
said to have been done (m account of a voter havincr
voted. The act of treating on tliat day in ordei- to affect
the election must, under the latter portion of .section 94,
778
DOMINION ELECTIONS.
[a.d.
be coupled in sonu; manner with " such voter havin<r
voted or beinj^ about to vote." In no case lias it, been
shown clearly to have been so. In the case of Peter
Wooley, Day, to uiy mind, brought himself very nearly
within the penal clauses of the Act. The promise of
assistance made to Wooley was too vague foi' me to act
upon, but the question of his voting was then biougjit
up, and liquor was introduced, and Day then ol)taii)((l
from him a promise in connection with his voting. If
the matter was res Integra, I should have found this elec-
tion avoided by the acts of Day. I cannot, however, do
so in view of the decisions in this country and in England.
I am bound to follow these authorities, and must leave it
to those who think themselves aggrieved by my tiiiding
to proceed by appeal and have the matter set aside.
I feel that as the law stands at present a great induce-
ment is held out to would-be candidates to look out in
eaidi constituency for men who are habitual drinkers, to
win them to their side, and then to send them out to carry
on the canvass by systematic treating, and thus t(» cause
the electioneering of the country to depend to a gieat
extent on the popularity aroused by tliese means i";ithor
than on the actual merits of the candidates, or the
measures they atlvocate. The dooi- is thus very widely
opened to the inti'oduction of drink as a means of (piietly,
yet surely, affecting the election. This would be pre-
vented if I could have held that the paying for li(|Uor
sujiplied to a voter by a canvasser wdien engaged in
canvassing his vote was a means of ingratiation or entice-
ment, or of making himself popular, sti'uck at l)y the Act,
and by it made a corrupt ])ractice.
Too much stress was laid in ajgument on the $U)
given to Day by Arkell. There was nothing unreasonable
in this. It was more reasonable for Day to borrow this
sum from his friend Arkell than that he should borrow
from any person else when away fiom home, and nuich
more reasonable to borrow $10 than to run in debt at
the various taverns and other places where he might be
i-;ithor
the
uietly,
pve-
liiiuor
u-ed in
cntice-
le Act.
1878.
EAST KI/JIN.
779
for the three or four days he was absent from St. Thomas
canvassiiifi; for the respondent.
I disposed of all the other charges tm the trial of the
case, and while not satisfied with the conduct of Day, 1
cannot, after a careful reperusal of the evidt^nce, conclude
that I would be justilieci in setting aside the election on
account of what he had done.
As to the costs of these proceedings, 1 think I may woA\
follow the rule laid down in these woids in the Cornck-
fergus am; (21 L. T. N. S. .SoU) : " But when drink is
once given, those who give or sanction it cannot know oi'
form an opinion of the consequences to which it may lead.
I think it .should be discouraged, and that not only candi-
dates but their over-zealous friends and paiti.'^ans .sliould
be appri.sed of the risks they run, and of the consecpiences
to wdiich they expose the candidate, by such a piacticc;,
and that it might be attended with positive lo.ss to him.
Upon these grounds 1 think 1 sliould, in this case, do what
I clearly have authority to do under the Act ol' Parlia-
ment, namely, refuse to give the respondent the costs of
these proceedings." (s. c. 1 CM. & H. 264).
T shall report accordingly to the Speaker.
iV'\ Coiiitiiotis Journal, iN?!), }>. 18.)
t-ti
:|1
,sonable
ow this
borrow
d n\uch
debt at
light be
1
\
if
r
780
DOMINION ELECTIONS.
[A.D.
PRESCOTT.
Before Mr. Justice Armour.
L'Orional, 7l/i Janudrij and I9th Fcb/imri/, 1S79.
Albert Haoar, Petitioner, v. Felix Routhier,
Respondent.
Votern entrird on Votirs' Li.it in wroiuj raparUi/ -Hiijht to ootv -Hefuml
to ifWf'ur,
The respoiulent was elected by four votes. At the election the names of
twelve persons who were entered on the aascHsment roll aa " free-
holders' appeared on the voters' lists, owing to a printer's mistake, an
"farmers' sons." Their votes were challenjjed at the poll, and they
were re(juired by the petitioner's scrutineers to take the fanners' .sous'
oath, which they refused. Subseijuently they otl'ereil ajjain to vote
aid to take the owners' oath, and the deputy returning olficer, who
was also clerk of the municipality, knowing them, gave them ballot
papers and allowed them to vote.
ffeld, 1. That having been rightly entered on the assessment roll, the
mistake as to their qualitication on the voters' list did not disfranchise
them.
2. That their refusal to take the farmers' sons' oath was not a refusal to
take the oiith re(iuired by law. A refusal to swear is where a voter
refuses to take the oath appropriate to his proper description.
3. That having a right to vote, although they voted in a wrong capacity,
their votes could not be struck off.
Semblc, That the provisions of the law as to how voters are to be entered
on the voters' list in re.'<peot to their property, and as to the manner in
which they are to vote, are directory.
Tlie petition contained tlie usual ehurj^ex of corrupt
practices, and asked to liave the election set aside on tlie
ground that persons had been allowed to vote without the
qualifications prescribed l)y law.
Mr. F. Oder for petition«^r.
Mr. Peter O'Brien and Mr. Ciirnva for respondent.
On the opening of the case the charges of corrupt prac-
tices were abandoned, and the election was attacked on
the grounds set out in the judgment.
Armour, J. — I do not know that there is any necessity
for my retaining the case. I have listened atten^^ively
to the arguments on both sides. The subject matter of
I; , M\ I
1878.]
PUESCOTT.
78 f
<lisi)ute in this election caso hjivin<( been stated by one
of the counsel on the previous occasion, I have since that
time striven to make myself acquainted with the law
upon the subject ; and I therefore think it is just as well
that T should dispose of the case now.
The facts are extremely simple. Sotiie twelve pei-sons
were duly entei'ed on the last revised assessment roll as
assessed iVeehohhiivs in resj)ect of real ])ropeity held by
them, of sutKcient value to entitle them to vote. From
that assessment roll was taken, by the clerk of the
townshi]), a list of the voters who would be entitled
according,' to it. In making out the copy for the purjiose
of havinn it printed, he set down correctly the names of
these persons mentioned in the particulars, and described
them therein as " owners," ami set forth the i)ro))erty in
respect of which they were assessed. The i)rinteV, it
appeals, made a mistake, entering- opposite the name of
each of these persons the wx)rd " do," which, referring to
what went befoi'e, indicate*! that they should be desig-
nated as "farmers' sons." That printed copy was sent to
the officials to whom by law the clerk of the miuiicipality
was obliged to send them ; was the copy duly certified
according to law; and was the copy deposited in the office
of the clerk of the peace, from which copies were taken
for the purposes of the voting of the various polling sub-
divisions.
At this election, at the polling subdivision numlier
one, in the township of Alfred, the township clerk, the
person who made out the voters' list for that township,
was the deputy retui-ning officer. These several persons
came to that polling place. I <lo not think it is important
whether they were eiich individually challenge* 1, or were
jointly challenged, and whether they w^ere permitted to
vote, or whether they were refused their votes, and the
ground of challenge or refusal inserted. They came to
vote, and they found themselves entered on the list as
"fariners' sons." They were improperly entered. The
only objection taken was that, as they were entered on
52
SI '■■
Si ?■
lis
rJ
.;'i!*i
782
DOMINION ELECTIONS.
[a.d.
the list as " farmers' sons," they were not entitled to vote
in any other capacity ; and they must tak(! the oath
api)roi)riate to a farmer's son, as if they were larm(U's'
sons, as entered on tlie votei's' list. Tluiy refused to take
that oath ; no other oath was re(iuired of them ; and suh-
se((uently, having become excited no doubt by the dread
of losing their fiunchise, they came back and insisted
that their votes should be taken. The deputy returning
officer knew them ; knew that they were the pei-.sons
named on the voters' list, and knew the mistake by
reason of which they were sought to be disfranchised.
They were permitted to vote. The cpiestion then comes
to this : Had these per.sons a right to vote, entered as
they wer(^ on the voters' list as farmers' sons !
My conclusion would be, that inasmuch us the majority
was only f(mr, and they were twelve, the election must
have been affected by their voting. I do not think it is
important to ascertain how they voted. Their voting
must necessarily have affected the election ; and if they
had no right to vote, I think I ought to set the election
a.side. I think they were entitled to vote, and ought to
have been allowed to vote. They did vote, being given
ballots by the deputy returning officer: and I am called
upon to say whether a mistake, such as was made on this
list, ought to have disfranchised them : because, if they are
to be disfranchised by reason of that, the}^ had no right
to vote at all, and the election ought to be set aside. I
do not think the law is so absurd as to say that a man
shall be disfranchised of his vote because of a mere
mistake like this — because of the way in which he is
bet down on the voters' list. Unless the law contained
a statement, that a person being .set down in his wrong
capacity, although fully identified, should not be entitled
to vote, I think that such person should not be dis-
franchised.
I cannot but think that the provisions of the law,
with regard to the manner in which the persons shall be
entered on the voters' list, so far as the property is
m
1878.]
I'HESCOTT.
783
man
mere
I he is
lained
Ivrong
^titled
le dis-
concorned, and tlic manner in which thoy vote, are to
be looked upon as dinjctoiy. It would lie a liardsjiip
indeed if a [jcrson, after these lists iiad hct'ii made out —
if he had lieen on a sutKcicnt tiiiu; to entitle him to vote,
and had paid his taxes — should find himself disfranchised
by a mere mistake on the voters' list, caused either liy
accident, clerical error, or an error of the printei' — an
error which it miii,dit be said tluit the clerk o\' the
township ()ut,dit to have corrected. It would l)e a hard
thin;;" indee<l to say that the law was so sti'ict, that it
disfrancliise(l llu' [lerson so situatecl, and comj)elled him
to lost! his vote. It is true that the statute niipiires
these voters' lists to be pul)lished in a (.'ertain way, in
order that the voteTs may see that they are properly
entered upon these lists ; but theses wwu, some of them
illiterate, all that they couhl reasonably ask to know
would be whether they were on the voters' list. 'I'hey
lind their names on tht; voters' list, and tindiiit.f that,
they would be .satisfied. I thiid< that the fact of the
description " farmers' .sons "' beini;- added to the names
of the.se |)ersons could not dej)rive them of their fran-
chise. In a scrutiny, would their votes have been sti-uck
off'^ T think tluiy would not. It <loes not matter how
they voted, if they were found on a scrutiny to have a
right to vote. Altliough tlu'V may have voted in a
wron_n' capacity, or althoui;h they may have been down
on the asse.ssment I'oll byawi'oni;,' d(!S(;ription, their votes
would not have been struck oft". 1 do not think I could
strike these votes otf' on a scrutiny, had it been capal)l(!
of being performed, when they voted in that way, I do
not think I ought to avoid the election becau.se these
pensons, who had a right to vote, did vote. I think the
deputy returning officer would have done wisely to have
given them ballots, marking on the poll b(jok that the
voters were objectetl to.
It is contended further on the part of the petitioner
that after their having refused to swear, they were not,
under the terms of the Act, entitled to come back and vote.
i
i
It;
7.S4 DOMINION ELECTIONS. [a. I).
I do not tJil<(! it' that tlicy liavc rcfust'd to takf the oath
which was the only oath that they couhl take. Thty
rufust'd to tako th(!oath aj)pro|)i'iate to thu niisdi'scriptioii
on the vott'i's' li.st ; they ri't'u.sod to tuki; that oiilh, and
I do not consider that a refusal to swear. A refusal to
swear is where a pei'.son coine.s, heinif j)ro|)erly named in
i'esj)e<;t of real ])i'()))erty upon the roll, uncler a pro|)ti
description, and refuses to take such oath as is jjioperly
appropriate to his description. These perscjns did not
refuse? to take the oath, the oidy oath they could take :
they refused to take the oath of fanners' .sons, liecau.se
they could not take it. 1 do not think that is a refusid
to swear. I think that when they came hack and vutcil
they had a v'v^ht to vote, and I do not think now that
their votes can be struck ott!
t think, therefore, the petition ouj^ht to Ik; dismissed,
and dismissed with costs.
(V-i Commons Jourvnl, 187!', p. 45.)
1.S7H.1
NOirril ONTAIflo.
786
NORTH ONTAKIO.
Bkfoi;|'; Mk. Jistki; Ahmoik.
WlllTiiv, -Ultli, .lis' .htuiiary. Lit ami JHf/i Ultniari/, tS7li.
William Hi;nuv (iiitHs, /\///;(>;m /•. v. (Jkouok Wiiki.ku,
l{('sih)inl)'iil.
Jirihiry — 7'nutiuij — (huluf iiiriiii/iri/^tiir nj nijiiinj llirinii ontfoix
n>iil fiiiii'iiMsi'rs — llrihirji of injliii iir> .
The ies|ioii(l(!iit caTiviissed a voter, wlio nt the trial swore th.it iifter lie
had agreed to vote for liiii), tlie respondent iiroinised to j,'ive the voter
some work : tlie respondent ilenied the promise.
J/ilil, althonj,'h tlii^ voter appeired to he a trutht'iil witness, and was not
.sliaken on eiossexaininatioii, tliat the proini.su of uniploynient was not
made o'lt heyond all reasonahh; doiild.
The law of eleetion ayency is not capable of precise (h-finition, hut is a
shiftinj^ elastic law, capahle of being moulded from time to time to
meet tiie inventions of those who in election m.itters seek to get rid
of the consei|neiiees of tlieir acts.
A room was procured at whien private meetings were held of the friends
of the res[)ondent to promote his election -some of which meetmgs he
attended. OnoW. attended these meetings, and was appointed to
pi'ocure the vote of a certain voter who was absent from the riding.
\V. hired a Vehicle to convey the voter to the poll.
//'Ill, That \\. was an agent of the respondent, and tiiat Ilia liiring Huch
vehicle was a corrupt i)ractice.
The respondent owed one M. a debt, which had been due for some time.
He was sued for it about the time of the election, and w;is informed
that his opponents were using the non-payment of it ag.iinst him in
the election. The rejprjudent stated lie would not pay it until after
the election, as it might allect hi.-- election.
II' 1(1, That tile promise to pay the debt was not made to proeui'e votes,
but to silence the liostilo criticism, and was not therefoie bribery.
Certain voters met at a tavern on polling day, and one I?, said he did
not know how to m.irk his ballot. One of the voters, after showing
B. how to mark his ballot, according to the candidate he desired to
vote for, treated,
[[lid. That the treating was not a violation of s. 04 of the Dominion
I'llections Act, KS74, nor a corrupt ))ractice under s. !(S of the Act.
One M. canvasseil a voter on polling d.iy, and urged him to vote for the
resjiondent, and, wliile canvassing, treated the voter four times ; the
votier then went ami voted.
[[il<K That the treating was for the purpose of corruptly influencing the
voter to vote or refi'ain from voting at the election.
A scrutineer for the respondent had some whiskey with him on polling
day, and treated the deputy returning otHcer, poll clerk, and another
in tlie polling station.
[[eld, not a corrupt practice.
Certain snt)porters of the respondent met in a room over a tavern to
promote the election of the respondent. Their meetings were presided
'
it;
lWj*
780
DOMINION ELECTIONS,
[a.d.
over by an agent of the respondent, and the respondent attended at
least one of such mcotinLT-i.
Hvld, Tliat the persons who attended sucli meetings were agents of the
respondent.
Two agents of the respondent gave a voter M. some wliiskey on polhng
day, and took him in a boat to an island, where they stayed for some
time. One of the agents then left, and the other sent .\1. to aiiotlier
part of the island for their coats. Dnring M."s absence the latter
agent left the island with the boat, but M. got back in time to vote,
being sent for by the opposite party.
Hi'ld, Tliat the two agents were guilty of undue intluence.
The respondent and one M. employed one H., a lawyer and professional
public speaker, to address meetings in the responiient's inti;icst, and
promised to pay H.'s travelling expenses, if it were legal to do so.
H<'l(l (by the Supreme ( 'ourt, reversing Aniiour, .1, ), that such a promise
was not bribery (4 Sup. Ct. 1{. 4H0).
Hild, per Armour, .(., Tliat the hiring of orators and canvassers at
an election is bnbiry.
The petition conuaiac'l tht u.sual chai'jjfes of compt
practices.
Mr. D' Alton McCarthy, LlCaud Mr. T. U. Blackstock,
for petitioner.
Mr. J. K. Kerr, C^).C., (ind Mr. Spraggr, for respondent.
The evidence attecting th(i election is sufficiently set
out in tlie judgment, except as to the Hurd case, included
in charoes four and five. Hurd's evidence was to the
effect that he was to address public nieetinos in the
interest of the resj)ondent, for which he claimed to be
entitled to $1,001). The respondent's evidence was that
Hurd was to address such meetings if his (the respond-
ent's) fi'iends approved of him, and that he was to be paid
his travelling expenses, if it was legal to do so.
Armour, J. — At the close of the evidence all the charges
in the particulars were abandoned, except those numbered
respectively 1, 2, 4,5, G, 7, 10, 11, Vi, 15, l!S, and 20.
These were more or less strenuously relied on by the
petitioner's coun.sel, and at the close of the able arguments
addressed to me by the counsel for both parties, I deenu'd
it better, as some of the charges atiected the respondent
personally, that 1 should reserve my <lecision until I had
had an opportunity of carefully perusing the shorthand
— '"^"'"■"'■"""
1878.]
NORTH ONTARIO.
787
notes of the evidence, and of exanuninj'' and considerinrf
the authoi'ities bearinjjj upon tlie several charLjes relied on.
Having now done so, I proceed to dispose of the charLjes
in the order in which they were presented to nie in ai-gn-
nient.
The tii-st charge was bribery by the respondent of one
Thomas Ellis by the otier of employment lo him.
The evidence given" by Ellis, so far as material to be
considered, was to the following effect : " He (the re-
spondent) asked me if I woiild vote for him ; he asked
me ' How was my vote,' and 1 said, ' it was all right ;' he
said, 'I lioard j'ou were such a hot-headed Tory that there
wouM be no use in speaking to you about it ;' I said, ' I
am not that hard ;' says he, ' Well, how is it V 1 said, ' I
guess I W'ill vote for the home man;' then he says, 'There
are ([uite a few Conservatives around here who are going
to support me ; 1 have done them some favoi's, and," said
he, ' 1 am ooinu to <£et out some lou's this winter, and I
will give you a job of getting out the logs.' " Ellis swore
that he placed no dependence on the ott'ei-, nor did he
afterwartls receive or look for a job. The respomlent
denied that he ever made any such ott'er to Ellis, an<l
also denied that on the occasion of canvassing Ellis \\)r
his vote there was any conversation about his giving
Ellis emi)loyment. 1 thiidv that Ellis was a truthful
witness, and his evidence was not in any way shaken liy
cross-e.xamination, noi- was it at all ati'ecteil bv the wit-
nesses called to impeach it ; but I think it would bu very
dangerous to hold that a mere offer of so indetinite a
character, made after the Note had been promised, and
upon which the voter placed no dependence, and which
mis^ht have been understood by him differently from the
way in which it was intended, was, on the evidence before
me, so assuredly positive as to compel me to find the
respondent guilty of bribery. 1 think what was saiil by
Mr. Baron Martin in the i'/wltenham com- (I O'M. k H.
(54) is peculiarly ai)])licable : " Where the evidence as to
bribery consists merely of offers oi' proposals to bribe, the
*
(;
"i,j|!^'»
788
DOMINION ELECTIONS.
[a D.
evidence re(|uired should be stronger than that with
respect to bribery itself ; or where the alleged V)ril)ery is
an offer of employment, it ought to be made out lieyond
all doul)t, because when two people are talking of a thing
which is not carrie<l out, it may be that they honestly
give tlieir (evidence, but one person understands what is
said by another differently from what he intends it. " I
think that this charge was not made out beyond reason-
able doubt, artd 1 therefore determine that it was not
proved.
The second charge was the hiring of a vehicle l)y one
John Comley Widdifield, an agent of the lespondent, t<»
cojivey one Thomas Shean, a voter, to the poll. Sheaii
was working at Bowmanville at the time of the election,
and his wife and family were residing at U.\l)ridge
village, where he had a vote, and Widdifield hired a vehicU;
fi'om one Crawford, a livery stable keeper, and furnishe'd
it to Mrs. Shean, in order that .slu^ might go for her hus-
band and bring him up to vote, which she accoidingly
did. It was attempted to l)e shown by the evidence of
Widdifiehl that the vehicle in cpiestion was not "hired,"
and that the use of it was a fi-ee gift by Crawford ; l)ut 1
find on the evidence that Widdifield hired it, and that it
was the understanding of both WiddificM and Crawfoi'l
at the time the vehicle was bespoken that it was to be
])aid for. It was al.so contended that the hii'ing of this
vehicle was not within clause JXi of the Dominion Klec-
•^ions Act, 1H74, Imt I .see no possible room for such a
contention.
The real contention, howevei', was that Widdifield was
not an agent of the i-espondent. There seemed to l)e in
the evidence upon this charge, as well as upon many
others in which the question of agency occurs, a singula)-
want of candor on the part of some of the witnesses, and
a manifest desire to conceal the truth. It seemed almost
impo.ssible to get any one to admit that there was a com-
mitted-room anywhere, or that there was a committee
anywhere, or that he was on the committee, or who was
1878.]
NORTH ONTARIO.
789
on tlie coimiiittee. They seemed to tiiink that the (lue.s-
tion of agency depended altogether ujion whetlier there
was a committee or not, or whether the person who was
charged with liaving been an agent was one of snch com-
mittee. Fortunately lor the purity of elections the law of
agencv in election matters is not a hard and fast law,
capable of precise definition ; it is a shifting, elastic law,
capable of being moulded from time to time to meet the
shrewd and astute inventions of those who in such mat-
ters seek to get rid of the consecpiences of theii- acts.
In the W<ihndd case (li CM. & H. 102), Mr. Ju.stico
Grove, after adverting to the ordinary law of pi'incipal
and agent, and th(; construction to be put upon the au-
thority of the agent according to that law, says : " But if
that construction of agency were put upon acts done at
elections, it would be almost impossible to prevent eor-
I'uption. Accoi'dingly a wider scope has been given to
the term agency in election matters, and a candidate; is
responsible generally, you may say, for the deeds of those
who. to his knowledge, for the pur[)Ost' of pi'omoting his
election, canvass and do such other acts as may tend to
promote his election, providi'(l that the camlidate or his
authorized agents have leasonable knowlt.'<l^e that these
pers(^ns are .so acting with that object. I thiidv it well
that 1 should .say in this respect that here it is almost
impossible for any .ludge to lay down such exact delini-
tlons and limits as .shall meet every particular case : and
it is extremely important that the public should know
that, becau.se were it otherwise — -were 1, for in.stance, on
the present occa.sion to pretend to lay down an exact
definition of what constituted agency at one election —
possibly in some othei' case that particular detinition might
be evaded, although what came substantially to the same
thing might have taken place. Happily there is sufficient
elasticity in the law to prevent that being the ca.se ; and
here, again, those who think that they can evade the law
by just creeping out of the words which learned Judges
u.se, or even which ti'ibunals use, upon a matter of this
11 ,||
790
DOMINION ELECTIONS.
[a.d.
sort, which is partly law and partly fact, will generally
find that they are very much mistaken. It is therefcjre
well that it should be understood that it rests with the
Judge not misapi)h'ing or straining the law, hut ai)i)lyinrf
the pi-inciples of the law to changed states of facts, to form
his opinion as to whether there has or has not been what
constitutes agency in these election matters. It is well
that the ])ublic should know that they cannot evade this
dithculty by merely getting, as they suppose, out of the
technical meaning of certain words and phrases."
The conclusion of fact I draw from what has passed in
this matter is that a room was procured in the village
of Uxbridge, where both the respondent and Widditield
resided, with the knowledge and concurrence of the
respondent, at which private meetings were held of tin*
friends of the respondent, some of which he attended;
that there was no nominated connnittee; that these meet-
ings were held to the knowledge of the respondent for
the sole purpose of promoting and furthering his election ;
that the persons who attended such meetings were only
the well known supporters of the respon<lent, persons
vvith whom he had made common cause for the purpose
of securing his election, persons upon whom he relied, and
by whose exertions he trusted to secure it. The fashion
now adopted is to re])udiate the name of connnittee-meet-
ing for such a gathering as that described, and for each of
the persons so meeting together to disclaim the name of a
committee-man, but the persons who met together in this
case did preci-sely what conunittee-men are appointed in
such cases to do, an<l were just as much connnittee-mcn
as if they had called themselves so. Widditield attended
.some of tJK'se meetings, and so attended for the like pui'-
pose and in tiie same capacity as the other persons who
attended the meetings. At one of these meetings at wdiich
Widditield attended the procuring of Shean's vote w'as a
subject of discussion, and to Widditield was afterwaids
as.signed the duty of procuring it. Applying, then, the
law as established by numerous authorities to the state of
1878.]
NORTH ONTAIUO.
791
tttendod
like iHiv-
Ions NV
it%v
hich
[te was a
berwavds
then, the
facts found by me upon tlie cvidenet', tlu'ie can be no
doubt whatever that Widdilield was an agent of the
respondent, one for whose acts the respondent must be
held responsible. I determine, therefore, that the second
charge was proved.
The next charge was bribery in the respondent settling
the claim of one Hugh Muni-o. Munro had a claim
against the respondent foi- some S-'JO, which was of long
standing, and when the respondent was nominated he
thought "it was a good time to get him to ])ay his debts,"
and accordinglv .sued it. The claim was for timber used
in the construction of a l)uildin<x and foi' the drawing of
tlie timber — the respondent being the contraetoi', and one;
McKenzie his .sul (-contractor, for the construction of the
building. The respondent had put ott the payment of
this claim from time to time, alleging that he wanted to
see his sub-contractor, wluj, he sairl, was liable for a ])ait
of it, before settling it. Atter he was sued, and shortly
before the election, he met one Brown, a son-in-law of
Munro, who asked him why he did not settle Munro's
claim, telling him that his enemies were making a handle
of it, and that it was militating against him. The respond-
ent explained to Brown' why it had not been paid, and
they then met Munro, when Brown said, " What about
that debt: you are both here now." Munro said, "It
is not paid yet." The respondent .said, " I won't pay
it till after the election, for it mi<rht atiV'ct the election."
Other conversation followed not material to this inquiiy.
I am of the opinion that what was said by the respond-
ent was in effect a promise that he would pay the claim
after the election, that it was so understood, and that
he intended it to be so understood bv the persons to
whom it was addressed; but 1 do not think that this
promise was made to imluce either Brown or Munro to
vote for him, but for the purpose of silencing the hostile
criticism that was being made upon his conduct in not
paying Munro's claim, and the niaking of such a promise
for such a purpose is not, in my opinion, under the circum-
':J :■ f.
71)2
DOMINION ELECTIONS.
[a.d.
stances of this case, bribery. I therefore determine that
the seventh charge has not been proved.
Tile next charges were ten and eleven, the treatin<'
by James Cameron, Ijy William Waddell, and Joseph
Elliott on the pollin*; day. Waddell and Elliott were
voters at the polling sulxlivision which included and had
its polling station in the village of Beaverton. James
Cameron was a store-keeper and the postmaster at. the
same village. The facts were shortly these : ( )n the
morning of the polling day, and after the opening of the
poll, Cameron met Waddell, who was his uncle, on the
street, and asked him up to McKinnon's tavern to have
a drir-' 'lere they found Joseph Elliott and one Neil
Bucli . "'omething was then said about voting, when
Buchanan .said lie did not know how to mark his ballot.
CauK ion then took out of his pocket a blank ballot, and
showed iiii ho. ,. ought to be marked, according as the
party wished to v'oti for one candidate or the other.
Cameron then said. " Come boys, let us have a drink, and
then we will go up and burst their votes." The drink
being duly <lisposed of, Cameron went to the poll, accom-
panied by Elliott and Buchanan. It was contended that
the treating in question was a wilful oti'ence against sec.
9-l< of the Dominion Elections Act (1874), and was a cor-
rupt practice under sec. 9S of that Act. I cannot adopt
that view, but feel bound to liold Jiat the treating in
this case was neither corrupt nor was it on account of
the persons treated being about to vote. I therefore
determine that the.se charges were not proved.
Charge thirteen was the treating by Archibald McKin-
non of Thomiis McCuUough on the polling day. McKinnon
was a blacksmith at Beaverton, and McCullough resided
on Thorah Island, and was a voter at Beaverton. They
were old friends, and whenever they met were in the
habit of having a gla.ss to<fetlier. McCuUouyh's account
of what took place betw^een them on polling day was not
controverted, and I tran.scribe it : "I met McKinnon in
the morning when I came over; he said, 'You have got
1878.]
NOHTH ONTARIO.
703
over ; <li(l you come over to vote ? ' I said 'Yes ; " ho said,
' Who are you going to vote for?' I said, 'I tlo not know
yet;' he said, ' Come over to McKinnon's and have a
(h-ink ;' we went over and had a (hink ; then lie aske<l
me to vote for Wheler, that Wiieler was tlie Ix'st man ;
that wa^ when we were liaving a drink ; I said I would
not know either of the candidates if they were in the
room at the time. We sat down and talked awhile, and 1
told him 1 always voted on the other ticket — the Conser-
vative — and he said, 'Come up ami have another diiid<.'
We had anotlier drink, and then sat down and talked
awhile again ; he wanted, if 1 would not vote for Wheler,
not to vote against him ; 1 told him I would not pi'omi.se.
We had another tlrink ; lie still talked politics ; that was
about all that was said, only that he did not want me to
vote against lis party; we had four drinks altogether at
this place. I \vent over and voted ; after that I saw
McKinnon ; he said, ' You have done it;' I said, 'Done
what:*' ' Voted against me,' he said. He said, ' You voted
for Mr. Gibbs ;' I said ' 1 did;' s;iid lie, ' I do not want to
darken your doors while you live, and I don't want you
to come into mine.' " McKinnon denied that the di'ink was
given for the purpose of intluencing McCullough. I was
at first disposed to think that the drink might be looked
upon as a concomitant of, rather than an ingredient in,
the persuasion exerted by McKinnon upon McCullough
but a careful consideration of the evidence has compelled
me to the conclusion that the drink was given tor the
purpose of corruptly influencing McCullough to vote or
refrain from voting at the election. I will dispose of
McKinnon's agency when I come to the disposal of charge
twenty.
Charge fifteen was the treating by D. M. Card of one
Thomas Fahey on polling day. Card was scrutineer for
the respondent at No. .'i polling division of the town.ship
of Rama on the polling day. He took whiskey with
him into the polling station and treated Thomas Fahey,
who was the deputy returning officer there, and Edward
' li
■
1 !
794
DOMINION ELECTIONS.
[a.d.
Fahey, who was the poll clerk, and another person named
McDonald. Edward Fahey was a voter in Rama, at No>
2 polling division. I do not think this treatin<r was
corrupt, nor was it on account of the pei-sons treated
having voted or heing about to vote. I therefore deter-
mine that this charge was not proved.
Charge eighteen is the hiring of a vehicle hy Prosi)rr
A. llurd to convey one George H. Neville, a voter, to tlie
poll. Prosper A. Hurd was undoubtedly an agent of the
respondent for the management of his election, and I Htid
as a fact that he hired a vehicle from Charles McKenzie
the day before polling day for the pur^jose of conveying
George H. Neville to the poll ; that both Prosper A. Hurd
and Charles McKenzie understood that the vehicle hired
was to be paid for, and $•) was accordingly charged by
McKenzie to the respondent for it. I find also that
Charles McKenzie knew the purpose for which the vehicle
was hired. I also find that Luther Hurd was sent by
Prosper A. Hurd with the vehicle to convey Neville to
the poll, which he accordingly did. McKenzie was recalled
near the close of tlui trial, and swore that it' he had known
that this v'lix was o;oin<>; to be u.sed for conveying voters
he would not have charged for it, forgetting no doubt
that he had previously sworn that he knew that the lig
engaged on the 16th (the rig in (|uestion) was to go after
Neville to bring him to vote. I cannot find on such testi-
mony as this that no charge vvas ever intended to be made
for the vehicle in c[uestion. I determine that this chaige
is proved.
Charge twenty was a charge of undue intluence prac-
tised upon William Murray by George Ross and John
Cameron, As I find the facts, they were .shortly these :
Murray was a voter at Beaverton, as was also his brother,
Angus Murray. Early on the morning of the polling day
Ross and Cameron went to the house of Angus Murray,
having previously provided themselves with the requisite
amount of wdiiskey, supplied to them by Angus McKin-
non. They went to see that Angus Murray was all right,
1878.]
NORTH ONTARIO.
795
Ihc rig
at' tor
testi-
sharge
prac-
John
I those :
ivother,
lig (lay
[urray,
(^uisite
[cKin-
righfc,
and having ascertained that he was all right, and would
vote for the respondent, they gave him a drink, and then
proceeded to the house of William Murray, who lived near
the lake. Finding that William Murray was all wi'ong,
and was going to vote for the petitioner, they uave him a
drink, and persuaded him to go with them to Thorah
Island in Cameron's boat, Cameron telling him that he
would l)e back time enough to vote. They all went to
the island in the boat, and landed first at McCuIlou<di's
Point, wliere Ross looked at some saw logs. They then
proceeded to Middle I'oint, and landed at the south side
of it. Tliere Cameron and Murray left their coats, and
leaving Ross and the boat there went for a walk over
the island, the object of the walk being, no doubt, the
detention of Murray on the island till near to the time
when they must necessarily start back in order to vote.
Returning from the walk they came to the north side
of the Middle Point, where they found the boat; then
Cameron sent Murray across the point foi- their coats, and
when he got Murray away he went off with the l)oat to
Beaverton, leaving Murray there, and thinking no doubt
that he had accomplished his purpo.se of pieventing him
from voting. Cameron says that when he started off
with the boat he thought it was aboiit four o'clock. Ross
had previously gone across to P»eaverton in the boat of
one Warren, because, as he says, he was told that (Jameron
and Murray had got tired and gone back. Murray, how-
ever, did get back to vote close upon five o'clock, as he
says a boat had been sent from Beaverton (no doubt by
the opposite party) to fetch him.
Hearing the evidence given upon this charge, and seeing
the bearing and demeanor of the witnes.ses, I could not
resist the conclusion that Ross and Cameron had deliber-
ately concocted the plan of getting Murray over to the
island for the .sole purpose of preventing him from voting.
The 95th clause of the Dominion Elections Act, 1874,
provides that " every person who directly or indirectly,
by himself or by any other penson in his behalf . .
\l
706
DOMINION KI.ECTION'S.
[a.d.
by abduction, duress, or any fraudulent device or conti-iv-
Jince, iniped(;s, prevents, or otlierwise inteiferes witli tlie
tVee exercise of the franchise of any voter, oi- thereby com-
pels, induces, or prevails upon any voter either to uivr
or refrain from givin^f his vote at any election, shull
be deemed to have been guilty of the olflince of undu.-
inrtuence."
1 think that Ross and Cameron did,* by a fraudulent
device and conti'ivance, impede, prevent, and interfere
with the free exercise of the franchise of Murray, ami
were guilty of undue influence.
It was argued that inasmuch as Mui-ray was ultimateh
able to exercis(! his franchise, and did so, the offence struck
at by the Act was not committed, Imt 1 do not yield to
this contention ; his being able at last to exercisi' hi^
franchise made it no less an offence in Ross and Cameron,
by a fraudulent device or conti'ivance, to impede or inter-
fere with the free exercise of it.
The question of the agency of Ross and Cameron and
of Archibald McKinnon, remains to be considered.
What I have said on the subject of agency in dealing
with charge three applies with equal force to the matter
in hand.
What was done at Beaverton was almost precisely
similar to what was done at Uxbridge village ; private
meetings were held here as there ; they were held
in a room in Angus McKinnon's hotel; the respondent
attended at least one of these meetings ; tliey weie
presided over by one (jleorge Bruce, an admitted agent
of the respondent for the management of his election at
Beaverton ; they were held for the sole purpose of secur-
ing the respondent's election ; the like persons in a like
capacity and for a like purpose attended these meetings
as the persons who attended the meetings at Uxbridge.
All those who met together there were co-workers together
for promoting the respondent's election, George Bruce
being the chief. George Ross attended one of these meet-
ings, John Cameron was at two of them, and Archibald
1878.]
NoUTH <»NI\IU(>.
797
McKijinon was nt one (»!• t\V(t of llirm. McKii\n()ii swort'
that lie iliil not iviii(,'iiil>(.'r pioiiiisin^' liiucc to <"<• Mc-
('uUonyli fiiul try and i^n-t liiiii to vote t"or \\'licl<i-, hut
he woulil not .s\wai' that that tliil not take jilacc. I havt*
little flouht that to Aieliiliaid McKiiuioii was assi^inMl
tlie «lnty of iookiiii;' al'trr McCullou^li on jtolliii^' day. 1
liavc also little douht that to Koss and ( 'aiin'i-on was
assigned the diitv of looking' after the two Miirrays.
Bruce swore that he understood on electif)n day, not he-
t'oi'e, that l\oss ami ( 'aiiieron were taking; ])art for \Vhelei\
and they did so, as fai- as appears, witli his sanction.
] can come to no other conclusion on the evidence than
thatArchil)ald McKiinion,(}(iorLfe Ross and John Cameron,
were fluents I'oi- the lespondent. 1 deternune, therefore,
that chari^cs thirteen and twenty were pioNt'd.
The only remaininjjj ehar,t>'es are foui', li\t' and six,
which were argued together, and which I will dispose of
as they were argued. These were chai'ges of hrihery of
Prosper A. Hurd (4), hy the respondent (o), Thomas Paxton
and (()) Joseph McClelland resi)ectively ; and in dealing
with them it will he necessary for me to refei' witli some
detail to the law as att'ecting the particular kind of l)rihei'y
— lu'ibery of influence — chai'ged to have lieen connnilted.
The Dominion Elections Act, l<S74, sec. 92, piovides
that the following persons sliall be deemed guilty of
bril)ery, and shall be punishable accordingly :
"(8). Every person who, directly or indiiectly, l)y him-
self or by any other person on his Ijchalf, makes any gift,
loan, ofi'er, i)romise, procurement, or agreement, as afore-
said, to or for any person in order to induce such ]ierson
to procure or endeavoi' to procure the return of any
person to serve in the House of Conunons, or the vote t)f
any voter at any election."
Thi.s latter subsection (under which these charges are
said to come) is a condensation of the two former suli-
sections ; and an application of the acts, therein I'eferred
to, to bribery or influence would, if amplified, form like
them two clauses, and would read as follows : Every
53
ill
I
70H
DOMINION f:lkctionh.
[A.n.
p(M*Hoii will), directly or ii\«liivi'tly, l»y liinisclf or \>y any
other person on his ImJuiII*, ;^'iveH, lends, or ai,'rees to j^rivt>
or len<l, or a^^rees or |)r()inises any money or valualile eon-
.sidoration.or ])r()inises to procnre, or to endeavor to procure,
any money or valuable coiisidtMMtion to or for ajiy |ter>()u
in orrler to induce such person to procure, or to endeavor
to procure, th(! retuin of any ]ierson tf» serve in the Hoiise
of Connnons, or the vote of any vott-r at j-ny elcetioii ; and
every person who dii-ectly or indirectly, Ity himself or hy
any other jierson on his hdialf, Ljives or )»romises, or
a<^rees to n'ivi! or promise, or offers or promises, anv ollice,
plac(\ or em|)loym(!nt, or pronuses to prtjcure, or to
endcavoi' to ])rocur(.', any oflice, place, or eni])loyment,
to or for any person in order to induce such pei.son to pro-
cure, or to endeavor to procure, the return of any p(>rson to
serve in the House of Ccnnnions, or the vote of any voti^r
at any election.
It will lie thus seen that the Iji'iheiy of iidluence is
defined in tlu; same way and by the very same words as
the bribery of voters, and it follows that the law applic-
able to the one is (Mpially a})plicable to the oth«u'. Of
tlu' two nio(Uis — bi'ibery of votes, and briliery of influence
—the latter i.s the more effectual and the more {xu-nicious.
Tt is the more effectual, because the briber of the voter
cannot, by reason of the ballot, know whether the voter
has cai-ried out the compact, but the briber of the influence
sees and knows whether the influence bribed has been
exerted. It is the more pernicious because its effects ai'e
uiore extensive ; the bril)er of the voter gets that vote
alone, the bi'il)er of tlie influence gets, almost as a matter
of course, the vote of the person whose influence is bribed,
and also the votes of all those affected by his influence.
The evidence in this case affords an illustration of this, if
such were wanted. Lutlier Hurd swore that he supported
the respondent through his father's influence, because he
thought his father was going to be benefited by it. It
also appears that the beneflt to be derived by the father-
in-law Hurd was p^o.ced before the son-in-law Neville as
an inducement to support the respondent.
1.S7.S.]
NOUTH OXTAUIO.
700
1)1
atter
ibed,
lucnce.
Ithis, it'
Ipor
luso
ted
he
lit. It
ather-
klle as
Till' amount, promisoil, wlictlicr it he lar^'e or siiiall.
makes no iliHen-iKV' in the otleiuM ; it is as mncli hiilici y
if one dollar was promised as it would lie if a thousand
wei-e.
Mr. .Iustic(! Willes. in the (',»;■,>/>>/ oisr (20 li. T. N.S.
40.')), after i|U()tin;^' tin; same clauses in the Imiierial Act
as suhsrction 'l, says: " Thenjfore aiiythinL,s ^reat or
small, whieh is <;iven to procure a vote, would hr a lirihe;
ami it Lfivi'U to another to |)urehas(' his intluenee al the
eleetion, it un(plestional>!y also would he a hrihe, and
would void till* election. It would have heeii hrihery in
the case of the person who ^ave, and in the ease of the
person who reeeived, the lieiielit; and if Mr. Malon had
an'reetl to ^rive Mr. iiill i;."), 1 mi^'ht say a farthin;;' in j)oint
of law ; if he a^i^reed to L,nve him anything', if only a pei)i)er-
corn, foi' the purpose of pureliasinij any influence which
Mr. Hill had with the electors of ('oventiv, and of advane-
iuL!: ^l'"- Kivton's interest as a candidate ; tlii' election, it
would have been bribery, and it would have avoided the
election."
Nor does it make any difference under what name the
proiniseil money is to li" ))aiil, whethei' for speeches to
be made, or for influence to be exerted in any other way,
and whether for loss of time ami inconvenience, or for
travelliiiiT or othei- expenses, the law is eijually violateil
in one case as in the others.
If A says to B, " If you will come and vote for me 1
will pay your travelling expenses in doin^f so;" or if A
say.s to B, "If you will come and endeavor to secure my
return, I will pay your expenses in doing so," there can
V)e no distinction in law between the.se proposals ; if the
one is illegal .so is the other. The former has been deter-
mined to be bribei'V by the House of Lords in Cooper v.
S/ddf (G H. L. Cas. 74(j) ; the reasoning ami result of that
case apply with ec^ual force to the latter, and the latter
must bo bribery too.
The payment of oratois was likened in the aigunient
to the payment of canvassers, and it wa.s contended that
t •
800
DOMINION ELECTIONS.
[A.D.
payuK'ut of canvassers was le<2:al in (-anada hocaus(> it
was loi;'al in England ; hut tliis hy no means follows.
In EiiL^Hand c'(Mnisel are cetained, attorneys and solicit us
are employed, a^'ents, canvassers, niessen^-ei's, and watchers
are hired, couuiiittees are furnished with refreshments,
and euoU!4'h money is spent in this and similar wavs ntaii
election there to ct)rru])t and demoralize any constituencv
here if s|it'nl in a like manner.
I need only refe'- to tlu' expenditui'c in the Westminster
election of .CM.OOd steilini;-, which was held not ille^-al ;
and to the Ai'nyleshire election hut the other day, I'cportcl
to have cost Chi.OOO sterling-.
Tlu'se e\.penditiires, for the purposes [ have aho\e
I'eferred to, have heen held in EnL;iand to lie authorized
tnider tlu' terms of the prox iso a{)pende(l to the enactment
ai^-ainst hrihery in the C P. P. Act, 1S.')4 : '• Proxided always
that the aforesaid cnaetmenl". shall not extend or he con-
strued to extend to any money ]Kvid or a^'reeil to lie paid
for or on account of any le^'al ex[)i'nses Ixnut j'ulc incurreij
at or concernino- any election."' And it has heen there
liold that hut for this proviso the jiayment of canvassers
would be illey,al. The franiers of our Act, no doubt with
the view of pi'cventin^' such enormous expenditure as had
been held in England to he le^al tuider the terms of the
proviso in the imperial Act, discarded that proviso, and
a(h)pted the following: "Provided always that the actual
personal expenses of anv canditlati', his expenses for
actual professional ser\ici's ])erfornie(l, and lnuid jidr pay-
ments for tlu> fair cost of printing and advertising, shall
he held to be expen.ses lawfully inciu'red, and the payment
thereof shall not be a contravention of this Act;" and in
order that no illegal jiayments should creeji in under the
words " personal expenses," they were careful to dehne
them by providing that " the words ' personal expenses,'
as used in this Act, with respect to the expenditure of
any candidate in relation to the election, shall include the
reasonable travelling expen.ses of such candidate, and the
.^.nnni«Tg^:r.-^^..~T.~.. -..=■■. -■.■.-~-^.——
187.S.]
NORTH ONTARIO.
SOI
reasonable expenses of liis livinu' at hotels or elsewhere,
I'or the purpose oi' and in relation t(. >iu'h election."
It will thus i)e s(>en how nnich i;ioi'e limited the expen-
diture must he mider this ])roviso than under that in (he
Imperial Aet.
It may l>e that this proviso in our Aet docs not eovei'
every expenditure that uv.iy leLrally he made, hut if any
f * t' n 11,' a
expenditure made outside of that jiermitted iiy the pro-
viso should hai)pen to lie eovered hv the express woi'ds
of the clauses relating" to hriher_\ , such expenditure will
inevitably amount to hrihery.
The hirinu; of orators and of ( .invassers is, in my opinion,
outside of v.-hat is permitted hy the ]iro\iso. an<l is witli-
ni
tl
11' very won
Is of
suose(
tion
am
1 is therefor*
hrioery,
I am told that such hiriuL;' h;is been pt'i-mitteil as lee-al
es.
'J'l
le (leeisions iii otliei
th
rovuices do
in other I'rovino
not l)inil me, and as in my opinion it is illegal. I shall lu)ld
to that o))inion until a Court w'lose authoi'ity I am bound
to .submit to shall determine ihat the law niay l>e violateil
!)i'iber\ may assume this ^arb with
tl
in tnis way, and
that
nn
pun
ity. Holdiui-- the view of the law whieh I have
expressed, it is (juite uinieeessary for me to determine
whieh was the true arrany'ement with Hnrd — thatdeposi'd
to by the i-espondent oi- that dt'posed to by llurd. In my
opinion ihey wei'e both etpiolly illenal. Mr. Paxton was
ni cour
t, sul
)pcvnaed as a witness
by tl
le i)etitioner.
and
mie'lit h.avt' been e;illed by either Jiarty, hut neither saw
tit to call him. His evidence wotdd undoubtedly have
fin'P.islied imj.ortant materials upon which to come to a
proper conclusion as to the true ai'ran_i;'ement. Assum-
ing tlien that the arrane-ement with IIiumI, d(>posed to by
the respondent, was the true arranu'enient, I lind that such
arraiiuement was so made by the res[)ondeiit to induce
HiU'il to eiider.vor to .secmv the return of the respondent
to sei've in tlie House o( Commons, and that the res})ond-
ent was thereby ^-uilty of bribery within subsection I] of
•section f)2 of the Dominion Klections Aet of ls7+.
ifi
802
DOMINION ELECTIONS.
[a.d.
I therefore determine that charge four was provcfl. I
also determine that charge five was, and charge six was
not, proved.*
I furtlier determine that the said election was void,
and that the same must \)v, .set aside with costs, to be paid
by the respondent to tlie ])etitioner, and shall certifv the
same to the Speaker of the Hou.se of Connnons, and .shall
report to him as required by law.
From Mr. Justice Armour's judgment on chaiges four
and five, the respondent appealed to the Su[)reme Court
of Canada, and the appeal was allowed witii costs ; the
Supreme Court holding, on the evidence, that the respond-
ent only agreed to pay Kurd's travelling expen.ses if it
was legal for him to do so. and that such a promi.sc was
not a violation of subsec. •} of see. !)2 of the Dominion
Elections Act, 1S74 (4 Sup. Ct. II 4.S0).
(15 Comhtons Jour/ial, 1881, p. 2).
IUIIJIWMimillMJ„.iBMM
1878.]
COIINWALL (.S).
803
CORNWALL (8).
Befoke Mr. Justice Armour.
CoRNWAi.i., I7fh. anil ISth Jiiw, -Inl l)fti>hrr, i',lh Diccmher, 1S7!).
• Donald Ban ^Iaclennan, Peidiom'r, v. Darby
J3e R( UN, Uef<[)i mdi'tif.
Comvu.->.<h)ii lo I'Mimhic idtncssfs in a Jonhjii ruini/ri/ — DiM/ua/iJicalinii uf
pi'litio>itr-—A<j<'iiln and xali-aijoit.t — (Jolorahlc imrrlia^cK — Jirihiri/- ■Cast.i. ,
A Coinniissiiin to exJimiiH', witnesses in a fon'igu country niay lie issiiod
in tlie case ot tiie trial of an election petition.
In order to (lisi|ualify tlie petitioner acting as such, the respondent ofVered
to prove (1) that the petitioner had heen reported hy I lie .ludge trying
a former election petition as giulty ol corrupt practices ; ("J I that tlu:
petitioner liad in tact been irnilty of corrupt |practices at such eh'ction ;
and (;}) that lu^ had been guilty of corrupt practices at the election in
ipiestion.
//('/(/, that such evidence, if olFered, Would not disiiualily the petitioner
a.s such.
//(/(/, further, that as the petitioner did not claim the seat, evidence
could not be gone into for the pur]iose of pcr-sonally disi|ualifying him.
One C. canvassed tor the respondent, and told the ii^spondent he was
going to support him, and tin; responilc:nt expected and understood
that he would do everything lie could for him legitimately. ('. did not
attend any meetings of tlu> respondent's committees, and made no
returii.s of his canvassing.
//'/(/, on the evidence set out in the judgment, that C was an agent of
the respoiideiii for the purposes f)f the election.
The agent, ( '., ein|)loyed one W. to go with him on the evening before the
election to s(>veral electors, from whom both I'. ;ind \V. made colorable
pu' chases, but with the corrupt intention of inducing the persoii.-,
from whom the purchases were made to vote or refrain from voting
at the eh'ction.
Nchl, that C. and W. were guilty of bribcrv, and that the election was
avoided in conse((uenee of their corrupt acts.
The petitioner was allowed his costs, but not the costs of the charges
whii'ii he fail'd to establish.
The p(.'titi()ii cuntaint'd the usual charges oV corrupt
practicH'.s.
Durino; the p^()cee(lill^•.s at the trial it apjH'ared that
a neco.s.sary and iMat(Mial witne.ss tVjr the petitioner had
removed to the State of Michigan, whereupon the learned
Jud,ne adjourned the tiial so that an ap|)lieation niiL,dit be
made l)ei'ort> hini in (Mianihers for the issue oF ti com-
mission. The learned -ludiic ai"ter\var<ls, on the autlioritv
of the Wd/llwiford cohc (I ()\\L ^r H. :)7) ;ui.l Sf<d>'i/-
U'l
804
I^OMIXION ELECTIONS.
[a.d.
bridge c<isf (19 L. T. N. S. 703), inado the ord'v for a
( 'oiiuiiission. (See the report of tlie application, <S P. R. 04).
Ml'. Bethuvc, Q.C., (i/ad Mr. Riilih'lJ, for petitioner.
Mr. Hector Cameron, Q.C., and Mr. Berg/n, for re-
spondent.
Armour, J. — Tlie counsel for the respondent at tlie
comniencenient of the trial took the objection that I had
no jurisdiction to try this cause, which ol)jection I ovei-
ruled.
He also at the same time offered to prove that the
petitioner had been reporte<l to the Speaker of the House
of Commons as having lieen guilty of corru])t pi'actices
at the said election for the said electoral district, Jicld on
the 2!)th of January, LS74, by the Judge who ti-ied a
petition in respect of suc!i last mentioned election, and
to prove that the petitioner had in fact been guilty of
corrupt practices at that election ; and had also ])een
guilty of corru{)t practices at the election for the said
electoral district, held on the 1 7th of September, liS78;
and contended that such proof Iteing given, disipialitied
the petitioner from lieing a petitioner in this cause.
I rejected the pi'oof so ottered, holding that if given it
would not have the effect contended for : South Huron
ease (29 C. P. 801).
He also at the close; of t\w petitioner's case offered to
prove the same facts for the purpose of disqualifying the
petitioner ; but inasmuch as the petitioner did not claim
the seat, I considered such proof irrelevant, and refused
to receive it.
[The learned Judge here referred to chai'ges on which
evidence had been given, but which he held not ])roved].
The remaining charges relied on by the petitioners
counsel nnist be determined by the construction to be put
upon the acts of George Crites and Henry White on the
night before the election, and by the responsibility of the
respondent for such acts.
in«««r»--;»a».».mrv,v...^..^
187S.1
CORNWALI- (Ji).
80;")
George Critos describes tlie manner of lii.s beeoniing
aa[nainted witli Henry White and what transpired
before his introchiction to him, rendering such introduc-
tion necessary, and tlie cii-cumstances attending such
introchiction.
[The h'arned Judge here read Ids notes of the evidence,
the substance of which is liereinafter icf erred to].
Henry White was a (h'()ver, who lived close to Noi'th-
field, and happened to go down to Alguii-t's Hotel the
evening of the KJth of Septendier. He did not know
Cri- 3S wanted to see him. He didn't know Crites. Mr.
Fulton introiluced him to Crites, and lie gave him a
package, telling him that he got it at Ottawa Hotel.
White opened the package and found S4.').00 in it, but no
letter. He put the money in his pocket with his other
money. He didn't ask Crites who it was fiom, noi' for
any explanation about it. He was not surprise<l at re-
ceiving it, nor did he thiid\' it strangi;. He made no
remark al)Out it. He had no idea who sent it to Inm,
nor for what ])Ui'pose, nor that it was to be used in tlie
election.
Alter White and Crites became acquainted, they got to
know from each other that they were both supporters of
Di'. Beigin, the responrient, an<l they took tea together-
at Alguire's.
Crites found out that Dr. Mattice and Henry Sandtield
Macdonald were at Northtield ; and he and White both
concluded from that fact, and from the knowledge' they
.said they liad of their ways, and of the corruj)tibility of
the voters in that locality, tliat they were there for the
purpose of buying votes, and Crites said it was his busi-
ness to watch them. White said that he had got a message
from Mr. Moss, for wlioni he had been buying stock, to
drive the stock into Noithtield in the morning, and he
would go with him. They went together. They went
first to William B^'udei's. White paid Philip Bende'i-
$'2.00 to help to drive stock next day, a service Bendei-
did not perform ; and Crites bought fifty pounds of butter
806
DOMINION ELECTIONS,
[A.D.
from him at 16 cts. a ponnd.aml paid liim the piice, SS.OO.
whicli butter Beiitler afterwards delivered. They next
visited Samuel Bender, from whom White ltouL,dit a sheep,
which Bender said was worth !ii;:}.25, for which White paid
liim 8">.00. White swore it was worth So.OO. xVnd Crites
bought 2.") lbs. of butter to be afterwaids delivereil, but
which never was, on account of which he paid S2.0(),
They next visited David Loucks, from whom White bouu'ht
a cow for ,si.").()0, and paid SG.OO on account. The cow
was delivered next morning, but she got away again and
went home, and White never got her. Tlu-y next visited
Geoi'ge Bender. White had previously bought sheep from
this Bender, for which he was to pay S10.75 ; and accord-
ing to Bender's account, he tohl him that night that if he
would vote he would give him .si 4.00 for them. White
denied this, but admitted paying S-i.OO on account of the
sheep that njght. They next went to William Arbuthnot's,
Crites stayed on the road, and White went into the house.
He gave Arlmthnot !?4.00, he said, on account of stock,
which he got next morning. Arbuthnot said he gave it
to get him out to vote. They went to Jas. ^IcBride's,
after which Crites went home, leaving White to pui-sue
his journey alone. He called on James T. Wesley, and
paid him 8"). 00 on account of a cow he had bought from
him for 820.00. White took the' cow about four weeks
after, and paid the balance. He visited Aaron Wesley,
from whom some time previously he had bought .sheep for
.$14.00, and had paid 84.00 on account, and according to
Wesley's account, aLfreed to ffive him .82.00 more on the
sheep if he would vote for the respomlent. This White
denied. White bought a heifer from Ai))lieus Runions,
whom he found at a paring bee that night at Markles,
for .812.00, and paid him 84.00 on account. Rmiions
never got the balance, nor White the heifei-. White also
met James Runions at the paring bee, and from him he
bought two lambs at 84.00 each. This took place about
midnijxht.
1878.]
CORNVVAI.L (3).
807
ue
antl
i-oiu
'eks
sU'V,
) I'or
o- to
tlic
Vhite
lions,
kle's,
uioiis
\ also
iin he
I have carefully considered the evidence of Crites and
White above referred to, and, reading it with the other
evidence adduced, I have come to the following conclu-
sions of fact :
That Crites went to Northlield on the evening of the
l()th September, for the puri)os(; of taking to White the
package of money left at the Ottawa Hotel. That (Writes
knew when he got the pficka,t;e that it contained money
that was being sent to White to be used cori'uplly at the
election. That he delivei'ed the money to White with
the knowledge; and intention that it would l)e so usrd.
That White .so used the whole or part of it, and that
Crites was present an<l assenting to a part of it being so
u.sed. That the purchases, promises ami payments made
by White on that niuht were made and paid bv him with
the corrupt intention of inducing the persons, fiom whom
and to whom they were made, to vote or reiVain from
voting at the election, and that the said White was there-
fore guilty t)f liiibery.
That the purchases and payments made by Crites on
tiiat night were made by him, and paid by him, with the
corrupt intcnition of inducing the pei'sons from whom and
to whom they were made to vote or refrain from voting
at the election, and that the .said Crites was thereby guilty
of bribeiy.
The only ivmaining (question is, was Crites a person
for M^hose acts the i-espondent nnist be held responsible ?
If he was .such a person, then the respondent must be
also held respon.sible for the acts of White — for Ciites
employed him. See the BninUeu rase (1 <)"M. & H. 18).
1 extract the evidence bearing upon the ([uestion of
Crites' agency. Crites said: " I took part in the election on
the Doctor's side. . . 1 canvassed for about a week.
I was almost in every part of the tow!iship. T had business
of my own, and as I met parties I spoke in favor of the
Doctor. I .saw the Doctor, but did not conver.se with
him. I cannot say whether he knew I was canvassing.
He did not meet me out canva.s8ing. I may have passed
II
808
DOMINION ELECTIONS.
[A.D.
him on the street ; I gave him no account of the procresn
I made. T may l\ave told him so and so was "•oin"
against him. I di<l not tell him to see any particular per-
son." James Kirkpatrick, secretary of the Conservative
Association, said: "I umlerstood tltat Crites was a sui)-
porter of the Doctor's. I did not think that he was doin.'f
more than a lnui(h'e<l others. I had no commmiicatioii
with him ahout what lie was to do. He mad(! no
returns ; we liad no regular returns. He never attended
a meeting, or gave any information. ... I am sure
that he never attended a committee meeting at all ; I
attended eveiy meeting regularly. Thei-e would l)e a
couple of dozen at the meeting. I knew that he had been
canvassing like others. I would have noticed him harl
he been present. . . . There were a gi'cat many others
who actively supported us that did not come at all. He
was not canvassing regularly. We did not furnish books
to anybody for that purpose. I know people who were
more active than he. ... I know that Crites sup-
ported the Doctor, but he was not canvassing regularly.
I suppose there were about one bundled canvassing the
same way as he was. He was not employed by the com-
mittee to go around. . . . Of my own knowledge 1
do not know of any one Crites canvassed. I suppose he
was canvassing, asking people as he happened to meet
them for their votes. I knew that he was always an active
man in elections ; 1 mean that he is a man who always
works hard during an election ; he did in this case as in
others. He took no part so far as active co-operation at
the meetings is concerned ; he never attended any of
the meeting.s. I knew he was a Conservative, and took
for granted that he was supporting the Doctor."
The respondent .said : " I was not certain till a short
time before the election what course George Crites would
take, knowing his warm personal friendship for Mr. Mac-
lennan on the one hand, and his strong political feeling
the other way. I met him, and he told me he was going
to support me. I think this was after the writ issued,
1878.]
CORNWALL (•*]).
809
)se ho
meet
lactive
|,l\vayH
as ill
lion at
^ny of
took
but liot'ore noiiiination. T do not tliink I told liiin I liopcd
he would do all he could for me ; I did not point out any-
thinji,' he could do for uw in ])articulai'. Of course, when
I asked a man for his support, and he ))romiscd to <;ive it
to me, I expected and understo(jd he would do everytliiui,'
he coul<l for me le<,dtimatoly — this a[)itlies to Crites in-
dividually. ... 1 was not aware of Ueor^e Crites
going out to the west side of tin? township on the night
of the 10th of SepteMd>er, nor do I know it now. I thiidc
I knew at the tinu; of tlu' nominati(jn tliat Crites was a
.supjtoi'ter of min(3, and I helieve hv. is a man who would
do all that he could once that he took sides."
1 ha(l occasion in the North Onfario Elect ion nisc {mite
p. 785) to e.xpre.ss my views at some length, supporting
them by authority, on the ([uestion of agency as a))plic-
able to parliamentary elections. Anil it is, thei'efore,
needle-ss for me to do more than refer to that case, and to
say that, applying the views that I then expressed to the
present case, I am compelled to the conclusion that I
nuist, upon the evidence here set out, hold Crites to have
been a person for whose acts, in relation to this election,
the respondent must be held responsible.
I find, therefore, these charges proved. And T deter-
mine that the election and tlie i-eturn of the respondent
are void.
The petitioner will get his costs ; but he will tax no
costs in respect of the charges wliich he has failed to
establish.
(14 Commons Jou,rnal, 1880, p. 2).
short
I would
k Mac-
Ifeeling
going
I issued,
#
DIGEST OF CASKS.
ADMISSIONS. J.) Of Bribery.
I. Till' ri'Miioiulent, a \vi!ik liefnre
tlio trial, scr\ 0(1 a iiutici' on tlic ]>t.'ti-
tioiiur adiiiittiiig liriluTy liy oiu; cif
his aiiciits, and notifyiii;,' tlie ])( ti-
tioiier not to iiiciii' liirtlier co.sts.
At tlie tiial the rL'sjxiiitleiit, pur-
suant t ' the notice, f,'avo evi(K;ncc
of lirihery hy an a^cnt, which tlic
Court hchl sutlirii-nt to avoid the
ohction. 'I'ho pt'titionuf thin i;ou-
teinlcd tlial he iiad a ri;.,'iit U> siiow
that coiiupt jiracticcs had cxtcu-
sivtdy pitvaihd, and that tlu; re-
spondent had been personally },'uilty
of )rni])t practices. J/rlil, that the
functions of the Court were judicial
and iKjt imiuisitoruil, and that no
further evidence sliouhl he nneived
on the issue as to the avoidance of
the (deetion on account of hrihery
by ai,'euts. Ihit if inciilentally it
should api'ear, in the iiniuiry as to
the personal eh.'rges against the
respondent, that corrupt practices
extensively prevailed, tlie same
would he certified in the report to
the Speaker. ITo/ Noiihinnhvrluud,
r)(;2.
2. Uefore the trial the respoiuh'ut
served a noti<;e upon the petitioner,
adndtting that the election inu.st he
avoi<led on tliegi-ound of bribery by
an agent without his knowledge lU'
consent. Such admission was acted
upon at the trial, and the election
avoided accordingly. North Simroi-,
()24.
(2.) Of Counsel. — 1. The ad-
mission of counsel in oi)en court, —
that the giving of S2 to a voter by
an agent of the respinident, after
such voter had voted, such voter
admitting that he did not know
why the .'?2 was given to him, was
bribery, — acted upon, and the elec-
tion avoided. CarMoit, (i.
2. The respondent had a majority
of 2()1 votes at the election, and at
the trial his counsel admitted that
there was evidence wdiich would
have the effect of avoiding the elec-
tion under I*. S. (»,, c. 10, s. I.")<1;
and tiie Couit, on such admission,
declared the election void, /luiiirin,
330.
.Vrr also pp. b'l, 1 !)',», 2(i:{.
AGENCY. 1. To sustain the
relation of agency, the petitioner
must show sonic recngnitioii by the
caiulidate i>f a voluntary agent's
services. The \]'< ■ihiuiisfi r ra.sf (1
O'.M. iV: II. Ml) as t.iageuey followed.
WdhuKi, 47.
■_'. Agency in election matters is a
result of law to be drawn frdn the
facts of the case, and the acts of the
individuals. AVf.^V I'll'-rhoi-n, 245.
■'!. Acts of agency and the deci-
sions bearing thereon, discussed.
^'i>,■th oii/iirio, :nn.
4. The I'ailiaiiientary law of
agency is a special lasv, and is ditl'er-
eut from the .irdiuary law of agency.
In Pal liamentary elections the prin-
cipal is liable for all acts of Ins agent,
even wheri' such acts .iie done con-
trary to the express instructions of
such principal, ('oniim/l^ 047.
,1, Mere canvassing of itstdf does
not prove agency, liut it tends to
prove it. A number of acts, no one
of which might in itself bo con-
clusive |)roof (jt au'cncy, iiiaj', when
taken together, amount to pioof of
such agency. ih'nL
I). If a candidate in good faith
undertakes the duties which his
agent might undertake, the acts of
a few zealous political friends in
canvassing for him, introducing niin
to electors, attending public meet-
ings and advocating his election, or
bringing voters to the poll, would
not make sucii e mdidate responsible
for priiliiblted acts contrary to his
publicly declared will and wishes,
and without his knowledge and con-
sent. ,'iuu//i Xiir/'oU.-, (jhO.
7. Remarks on the evidence of
agency. Ibi'L
m
H12
DKJKST OK (JASKS.
H. Till' law of ('li'itioii agdiicy i.s
not ciipiiltliMif priMMHi iloliiiitiiiii, Imt
is ii sliiftiii!,' clasiio luw, ('ipalile of
Ix'iii^ iiiiiiililcd froiii tiiiiti til time to
liici't till; inVMiitioiiHof tlioHO who in
election III itlers si!.U to get nil of
tiie uoiisei|ii(iiice.i(if tiieir acts. Xitrlli
Cn/ari'i, 78.').
AGENTS. (1.) Generally. I. When
a c.ilidlil.ite puts iiiiiii'V ilit(J tlie
liaiitl.s of iii.s agi'iit, ,iiiii e\.'rcises ;,.;
.su|ici-vi.sii)ii over the way iii v, liich
the aj,'ei)t is .sp(!ii'iiii;,' tiiat inonev,
but accredits ami trusts him, and
leaves iiiiii the power of spending
tlio ni(>ney, altiiough he may have
given directions tli it none of the
money siiould he impi'opiirly «peiit,
there is .such an agency e'.stahlished
that the candidate is ii.ihic to th<i
iiiUest extent no"^ only for what tli.it
agent may do, liiit also for wiiat all
tlio.se w hoin that agi^it <;niploys may
do. South <'/■(' I/, ;")■_'.
2. I'A'idence was given to show
that certain parties had fittended
meetings witli the respomlent and
canvassed for him. .ind liad per-
formed other acts of illegcd agency,
as set out in the eviilence. /A/-/,
that the acts ol alleged agency
relied on in tiie evidence were not
suUi'sient to coii.stitute such p.irties
the agents of the respondent, yoiih
York, <;;{.
3. Money was paid by an agent
of tiie respondent (S7 eiich) to cer-
tain vot Ts for canvassing, tlicy
observing that "a little money in
election time was allowed for knock-
ing around," which ob-iervatii^n the
agent considered " going about to
solicit votes." The agent denied it
Was paid with any corrupt intent,
although his evidence was not satis-
factory. The voters swore the
money was paid to their wives, and
the ag' lit w;is not recalled to explain
it. Ili'lil, that althoutrh such pay-
ment might be open to an unfavor-
able iiiteriiretation, it was iiof,
according to the evidence, incon-
sistent with being made witl. )ut
any improper motive. Wed Tomnto,
97.
4. Observations on the reasons
why candidates should be held liable
for acts doue by their agents. The
7'aiiiifiiii I'liH' II o'M. .V H. iis4)
approved. ////'/.
.">. A uitness stateil that he had
asked the people in his ini.'hborho(.d
to vote for the respondent, had
attended a meeting of the respond-
eiit's friends, jiikI made ariuiige-
ments tor bringing nji voters on
polling day, and iiad a team out on
polling d.iy. //, 1,1, that the evidence
of his being an agtuit of the ris| d-
e.;t was not snliicient. Kuat I'd, r-
I'lifii, ■J4."i.
(i. One 0. accompanied the re-
spondent when going to a public
meeting, and canvassed at some
hciiises. On the journey, the respond-
cut cautioned < ". not to treat, nor do
anything to roiiiproniise hini or
avoid the election. The respondent's
election ayent paid for C "s nie.als at
the plac(^ wliei(! the iiieeting was
held. //«/'/, that the evidence
showed that the respomlent hid
availed himself of C's services, and
was tlu^'efore responsible for his
acts, fl/it/.
7. Oiie.'^.. whodi.'sircd nomination
as a ciii'lidatc by a lleioini Coiucii-
tion, w.is not noiiiiiiated. and there-
upon, from hostility to the conven-
tion and its nominee, opposed the
candidate ot the convention, which
thereby hail the efl'ect of supporting
the lesponde'iit, At 'he close of the
poll, the rcsjiondeiit pul>licly thank-
ed .S. for being instrumental in
bringing about his election. S.
owned a sho)) and tavern. In ♦ the
license for the latter w.is in his
clerk's name ; and during the poll-
iiii; hours on polling day spirituous
liipioru were sold and given in the
shop and tavern. //«'/(/, that what
was done by S. at the election was
in pursuance of a hostile feeling
against the convention and its can-
didate, and did not constitute him
an agent of the respondent. Cn-,/.
8. One M., the reeve of
ship, exerted himself stn
favor of the rc^iiondent, t
he was politically opposed,
against the otluu- candidat",
attended mcetini»s where the
siiondeiit was, and spoke in his favor.
The reason for his sup))ortinu the
respondent and opposing the other
(ministerial) candidate, with whom
a
lom
and
,1,1,1
re-
I
AfJKNTS (1) (IKN'KUAI.I.Y.
s]:l
'•n
lu, "xl
It'', HllJ
the le-
lis favor,
jiinir the
Ihe other
Th whom
ho wtiH politieally in iii-i'itrd, was,
that tile iiiiiiisti'v ot the day had
s(!|iaratiMl tht; tuwnriiiip ot whidi lie
Was rci^Vf iioiii the ri(hii){. 'I'hc
rt!i|i(iii(l('iit aski:d M. to aitoiid a
pidihc iiii'ctiiiL!. wliii li ill' did ; .ind
at anotiicr intM-tiiii; wliiili iio atloiid-
I'd, M. Htatcd (iiiit not in thi; ri'-
Hpoiident's hiiarin;,') tliat he was
iictinn there on the rcsitoiidi'iit's
heliair. M . was once in thi; rrspond-
I'lit's uoiMmitti'f-riMiiii, and sinnrd
and einaihittul ciruiilai's i^stl(.'d iiy
tlie iTspondi'iit'H tiieiids. //'/•/, that
the i|iit'-^'ii>i! ot aj^cncy hciiij^ olio of
inti'iit.thc ii's|)oii(U'iit, iniddtlii' cir-
cunihtancrs, never coiiri'irc;!! ii|ion
M. till! aiitiionty, nor did M. aci'cpt
till! didc^ratioii, of an agent for tlin
|)iirposfs of the electiou. \oi(/i
(•'nil, 'MVl.
0. Persons who caiiva-^si'd and
went to iiiectintis \vith tlie ri'.spond-
cut, and attended iiicetinits to pro-
mote the election, at whieh nieetinj,'s
tile respondent attiiidfd : and per-
sons wlio eanvassed witli and intro-
t^iieud voters to tlie respoiuU'iit,
called meetings and appointed ean-
vassers, and did other acts to further
the election, and examined the
results of the (;aiivass, were lield to
he aijents of tlie respondent : and
eornijtt practices coiiiniitted hy
them, and hy sub-agents appointed
hy them, avoided the election.
('oniinill, otT.
10. The resjioudent in his evidi^nce
.stated that he ohjooted to com-
inittees ; that he kiiiw certain
persons were his siipjiorters, and
believed they did their l)est for him,
hilt he dill not personally know that
tlicy acted for iiiiii. Other evidence
•siiowed that tiiesc persons took
part in the election on helialf of the
respondent ; some spoke lor him at
one of his mcetiiij.'s : and one of
them stated that he and some of
the others canvassed for the re-
spondent, and that he j^ave the
re<|)ondent to understand he was
taking jiart in the election for him.
J/( /'/, tliat as it (lid not appear that
any one of these persons w,is autlior-
i:'ed hy the respondent to rc])ies('ut
hit" and as they did not claim to
lia any such authority from him,
but supported tiie res[)ondeiit as the
candidate of their party, tlu; said
01
peiMons were not agents of the re-
spondent for the purposes of the
elect iuu. Sniitfi \i,fhill.\ wo.
1 1. S. /iili'i', if a candidate \s ho had
appoint'iil no agents w.is aware that
some of his supporters were syste-
matically working for him, and hy
any art, .ir ferliearanee, coiiM he
taiily dcenu'd to rccoi,'ni/i'and adopt
their inoceedings, h(! woiilil make
tlium his agents. //</>/,
I'J. One 1'., a ta\'ern-k<M'per, took
the petitioner's side at the ilect'on
and at a meeting lalled hy the peti-
tioner, at which he was appointed
eli.iirman. Notieisof this meeting
Were sent hy the jietitioner to I', to
distrihute, some of which 1'. jiut up
at his house and some he sent to
other iilaces. ( (n [lolling day P.
desired to give a free diniK'r to some
of the petitioner's voters, and .-iskeil
the pi'titioner if he might do so.
'I'he petitioner ilid not ap|)rovi; of it
in CISC it should interfere with liis
I'lectioii.and w.irned I', that althou:;h
he was not his (petitioner's) agent,
he would rather he should not do
it. P., notwithstanding this, paid
for free dinners to 40 of the peti-
tioner's voters. Jfi/'/, hythcC'oiiit
of <ihieeu"s Pencil (athrming H'lNun,
.1.). that i*. was not an agent of
the iietitioner. Xorf/i ri'/iuiii (2),
(i7l.
Pi. A year before the election the
resjKiiiileiit paid part of the charges
ot a lawyer nitaiiicd hy one O. to
attend the revision of the assi^ssmcnt
rolls. O. at the time of the election
attendt^il one of tlu' respondent's
meetings, at which he stated that his
own mind was not made up, but he
urged that the res|iondeiit ought to
have the su])port of the voters, he
being a local man ; and in three or
t'our instaiii'es O. asked voters to
v(.te for the respondent. The re-
H])ondent and his friends distrusted
O., and in no way rccogni/id him as
acting with them. J/i Id, that ().
was not an agent of the respondent
for the purposes of the election.
Ilnldhi, TM\.
14. One ( ". canvassed for the le-
spoiident, ■•ind told the respomleiit
he was going to su])|)ort him, and
the respondent ex|)eeteil and under-
stood that liL; would do everything
If'
814
DKIH
OF CASKS.
he could for Iiim legitimntcly. V.
did not atttiid M\y meotin^.s of tl'.'.>
rfHpoiiik'iit's coimiiittci's, ami made
no returns of litfl L'.'mvas.siuir. 7/''/'',
on tlie (.'Videticc set out in tlio judi^-
mciit, that (-'. wa.^ an a.'j^ciit vi tlie
respondent lor the iniriio-sfs of the
oh'Ction. Corviriill ('Aj, S'l.'i
— -• {•!.) Cornraltte'ia. — 1. One
M. wa.s a nienilier of a to'.vi.<|;ip
ooininittne, (ir;ranizeil hy direction
of the convention sv'hi''h nominated
the respondent, and tiic work of tiio
eh'etion wa^ put into thi' hands of
the;<u town.siiij) committees. M.
canvassed his sehool .'le: tion, and
had a voters' li.^rt, wiiieh was takt.-n
from him h.) tiiu coniinittiM- uu tlie
a1h\!Tation that he Ava.s not doing
niueli. Tl\c respondent never a.dicd
M. to work for liiin, Ijut M. u.skod
the responch nt v. liat aueeosa he iiii't.
Tiie respondent had no oi>e aetiug
for him except theso eonnir.ii;i.e.s
antl tiOMiO voluiitocrs, and lie nt.\er
objected to tile aid tlioy «ero giving
hiai, nor did he repiuli.,to tiieir str-
V'ce.j. Ifi/il, on tlie e\ ii'ei.ee, linit
tlie I'espondeiit V.'n.i 1'v.sp. ..,;;;. le :or
these o.oinniittce^, and tai.t .*i ., a^a
meniljorof one of such coiuinittics,
WIS .nn a(,'ent of the re.STio.i'le.it.
2, Ab(uit a dozen o: tlie electors
met some time before tlie ckction
and noniinar.eil the re.spondeiiv as
tlio candidate who .shon.d. contest
thiO election ia ulie i:: 4->.st of the
pulitieal p.irty to whieh they be-
Ionised. Tlie w \ ,; accepted
aiul aetcd up.n; ., i.ii'i idon.
They 'met oee;i?iioii.i •
pose of promoting t.
election, pi-rniui-ed voCeV.-. i-
vuss-ed vutc'r-., and ^ot k
wliich tluy c:;'/i<nat..d t: i
of success. Ih-'ti. th.'t ; 1 '
not sty I'/ t' ■
they hail a.-suni.d li..
whii;h n.siially devolve
bodies. .V'-V ''' '
3. The rc.-|K'ii.l. .1.. w .. <..,,...'. ■
by a C'onscrvatise a.-,' I.ition, ri, I
he accepted tlio nuinii.aiion.
dele<;'ate.s to the association ^
ilo ail they coald to Huuiire hi> e..,-
tioii. A cuininitteo \\;;-( .'pivi.iii^o
in (). to e;\nvas.s the t: ■
comniittfe-rooin wa.i en.
paid for by the association, votcis"
" stA were procured and used as eaii-
vass^ing books, and ineni!)ers woe
appointed to canvass parts of the
tuwii, and reports were made to tin-
coniiiiittee of the result of tlie ( uii-
va.s^.illg. The respondent, who re-
sided at W., diif not attcid tlie
meetings, but knew they were raii-
vassingfor him, and gave them blank
appointments of scrntiueera to till
np, whicli tliey did, but the rcs]ioii-
dent did not know who eoniposed
the committee. Ihld, that the • ■
spoiident, by authorizing such com
mittce at 0. to appoint scrutineers,
made them his special agents for
that particnlat- matter a'ul for that
oc;asion only, and did not adopt
then as his .i:e:ior.Ml agents for all the
purposes of the elc.-tioii. Sin'lh,
Uiitiir'io. '•>^^.
4. Ouv ']"., a member of sue'i com-
mittee, cKivassed aotivcly for lie;
respfnidi lit and to his knowledge,
and o;i the noiiiination d:iy attended
ameetingof tlie rosjioiidi.'iit's friends
in W., at which the respondent' was
present, and at which arrangements
Avere made about canvassing and
getting out votes, and generally
about the election. Ifdil, by the
Court of Ap/peal { JWojii, d., dtihl-
tantc), that 'l\ w;;s an agent of the
ropponilent for the [lurposes of the
election. //'"•'.
5. On!! ( i., a member of tho same
committee, had a voters' list, and
canvassed for the respondent, and
.stated he hai! no doul.)*' the resiiond-
cut oxpcctLtl hhn to \ ote and work
fciP him. //(/,', that f !. was not an
agent of tho respondent. HwL
0. The coramittee at tiie town of
\V., h.iving been recognized and al-
tendeil by the respondent, were
held to be his agcnt.s. //;/'".
7. <hie II. was a member of the
coiniiutteo it W. for tho respond-
ent's eleeticn, canvassed for liiiii,
and met hini it tlio coimnittec-
rooms once or twice. 15. was also
app.'iiited in writing by the respond ■
lilt to ;iet as aerntiiieer for him on
the polling day, aiid during |.>olling
lioiir.s gavo widskey to the l)eputy
Iletiirning Olilcer in the polling
boo'Ji. J.'i'd, thatr>., while acting
as such .serutinet!!', wa.s not actnisi
AC;KXTS ('2) COM.V. IITLKS.
si;
ill Ilia toni;i.TOup;icity as LOiniiiittoL'-
iiKiii or agent of chc rospoi;i!(!iit, ,;iiil
tniit his apiiuintiiu'iit as siiiitiuccr
dill u( t t'lnpowt'i- him to do aiia-tof
trcatiiij^ -o as to iii.iko t)iu icspontl-
eiit iiiiswera))!'- for it. /'I'n'.
8. If a iiuetin:.' of tK-ctor-j a.-.^eIn-
ble.s ami lias tlit^ saiutioii of llic
caiididati!. .-•iicli caiiiliilate is iispoii-
silili! for its aots aii-l tho acts of the
af{oiitd app.iiiituii by it. Contii;(//,
547.
!). lint uiurc tln'nK:t;tiiut is !ary;e,
thi II all ]iii Milt c.miiot l)t; i.-onsiiiur-
ed as aL'tiii.:i ; only tiio.'^e to wiioia
ci'rtaiii diitii'S, lidufr as a foiiiiiaitee
eras iiidiviiliial raiivasscrs, are as -
sij^iifd. /'/('/.
10. Tilt! rt'spoiulent iioiiiiiiati'd no
coiiiiiiitttHS to promote hi.s olectioii ;
but li(i was aware that cojniidttces
were acting for hiia in each iinioiui-
pality. Ua one occasion ho went to
the door of o.ai of tlio conuiiittci.'-
roonis, and left some printed lulls tr*
he di-trihuted. One P., who at-
tcndc'il tlie nieetiji>;.s of tlii.s ct'm-
mittec, and said he was ccnsidiMed
on the comniittoe, conuaitted aa
act of hrihcry. //A/, that tlio
ooniiaittto wore a;^txits of th.' rc-
sroadent, that P. wiis a au'iuhor
of tho cciiiTaittce ; and an act of
bribery having' incii coraiuittcd by
hiia, the olcctioa was av^'iilcd. ,'.' '.•.,'
Ntji-lli.Hii'h' iliiiil, .')77.
1 1. A vo"ia was procured at which
private nieetin;,'s AVcro l.tdd of tho
friends oi the rysjc^udent t'> {.^a-
mote his election - .soino of which
inw'tinj^s i;o attended. One \\ . at-
tended these nitt.'ti:. :;.■•, and'wns ap-
pointed to pioctiro the vote of a
teitain voter who was ab.eut Sroin
the riiliiiL;. W. Idrfd a veliicle to
convey the Vwter t > iho poll. (/• Id,
that W . w,.s ail aL;eit of the re-
spondent, and that ids Idrin'^ such
vehicle wasacorruptprut'tiee. Si^rl/i
0,h''ir!i>, 7'Sj.
I-. Ccitain supporters of tl.i lo-
s|)(indent met in a ro.mi over a
tavern to promote the ue.-tioii 01
tho re.- poi'dcut, I'iieir nid tiny^
wcie pnvdljd over by an M._;i,nt of
tho respondent, and tho iispoiiileiit
attelidcd Ui Ica.-t laie of such nu'ct-
ings, J It'll/, that the peismis ^^ho
atLuialed t.;ich luect'ni;.^ were a-^euts
of tho roopoiulcJit. /''/''.
(3.) Political Associations. —
J. The deicgates to a poliiiea! iu;i-
veatiou asjcmlded fur the propose
of sclectin;,' a candidate, who itver
had intcrcnurse v. ith the cainiic'atc
selecteil. and who nevir can', a^.sed
in liis liehalf. i';.!aiot be coas.deictl
as agents f')r such candidate. ''■'<.'■
liii'^l rl). 1.S7.
•2. Wherea pi'litica! ui>;am/!it;oii,
after uuniinatirii,' tluir canaid.ite,
divided into committees "to hick
after V(;ters in the particular Maids
in winch they resided :'' and the
rcspondenc lad not ■.'iveii :.iithi.iity
to aiiv merd)er (>f such conanittee.-..
nor to any canvasser, to cama.ss
j;cneral]y. " // / '■ one K ., who
was a incuiber ui ■ omiaittcc for
Wiud No. •_', aail SMiO was alleged
to have committed an act of 1 lilfry
in Ward No. (i, having no authority
to canv.-iss in th.c l.itier uard, was
au ayeiit with limited authority to
2anva.ss in Ward Xo. - only, and
therefore tia; lesj^oudent con Id not
be made liable fer iiis allcgul acts.
L-Mv'v;i. •_'14.
;5. The fact (.f a political assiicia-
tion puttiia: forward .-md sni'portini.;
a partieul.Lr ctmiildj'te does not make
e\t ry ni'MMher of the afisociatloii lii>
agent: but the camlidate may si>
avail hinsedf of their services in
caevassimx for him and pioniotiiiu
his election, as t<j make tiieiii his
agcii's. Aoc'/ '//•<'//, Itii-.
4. P.y the c'oa.stitntion ot the Ue-
foriu Ai^.sociation, c.ieh delegate to
the on' ention was actively to pro-
mote tho el. i tion of the candidate
appointed liy the convention. Tin
respt .a'cnt had himself bren f.r six'
ycais a ini^ndier ot the a'-soeiation.
ami v., IS familiar v.iih its ol i'Pts
■■uid eon.-jtitution. He had also as
a deleu'ati- act' d aid cioivas'cd for
other eandidat. - in 'In p'-oni<itinn
of their <Ie..t:o:^s. ai'd expectf il the
like as«i.«itnnce iifiu the p-enent
ihcmbers nf the .\-Mieiat'on. and tt^
tlifi perfection of that .•system ns aa
eketion 'riiij.: nveiiiy, the H'spi.ed-
eilt OV.ed his »l"eti(HI. Il<!<i. rr:it
the del'.'v;at<h to the psMici.ition.
acting as such in pi' motinjr the
eiectioi, of tile lespoudeiit, Weri' liis
agents, for whose acts he was re-
f-;,onsiUc ; and that an lu.l of bvihery
81()
DIGEST OK CASES.
committed by one R., a delegate
to Huch association, and who <jan-
vas;u'd and otherwise acted for the
respondent, avoided the election.
Ei"<t Aort/iiiiiihcrl'iml, .S87.
(4. ^Sub-Agents. — 1. The re-
spondeat gave to on 3 H. .so)ne can-
vassing l)Ooks,with directions to put
them into good hands to be sekcted
by lum for canvassing. H. gave one
of the books to B., a tavern-keeper,
and ]J. canvassed for the i-espond-
ent. K was found guilty of a cor-
rupt practice in keeping that part
of his tavern wiicrein ]i(|Uors were
kept in store, so open that persons
could and did enter the store-room
and drink spirituous liipiors there
during pollintr iionrs on the day of
election. //(A/, that H. was speci-
ally authorized by the respondent to
appoint sul)-agents, and had under
such autliority appointed 15. as a sub-
agent, an<l the corrupt practices
committed by K. as such sub-agent
of the respondent avoided the elec-
tion, irdhmd (2), 187.
2. The persons amongst whom the
respondent's moneys had been dis-
tiibuted by \V.,an agent of respond-
ent, and persons acting under them,
were .sub-agents of respondent, and
that their corrupt acts avoided the
election. A'ia<i<inf, ."idS.
3. St'inhle, that no limit can be
I)laced to the number of parties
tln-ouah wliom the sub-agency may
extend. Jliid.
ALIENS. I. Tiio respondent at-
tacked the (|Ufdification of one of
the petitioners on tlie grounds tiiat
he was an alien. Tiie learned ludge
admitted the evidence, but held
that the evidence as to petitioner
having livi>,i in the United States,
without showing that his parents
were American citi/cns, was not
sutlicient to establish the charge of
alienage. Prrrtcult, 1.
'2. Where the voter was born in
the United States, his p.irents being
Mritisli-born subjects, his father and
grandl'ather being U. K. Loyalists,
and the voter residing nearly all his
life in Canada : lldil, entitle<l to
vote. Stnrinonl^ 21.
',\. An alien who name to Canada
in 18.")0, and had taken the oath of
allegiance in ISIJl, but had taken no
proceedings t.i obtain a certificate
of naturalization from the Court of
(Quarter-Sessions, was hel(i not ipiali-
fied to vote. — Baam'-i r<jl( . Brurl:-
nib; 12!).
4. Nor was an alien, whose father
had taken the oath of allegiance on
obtaining the patent for his land
under 9 (Jeorge IV., c. 21, ((ualitied
to vote. — l/iiifii/'.-i nilc. I hill.
^1. The evidence that the parents
of a voter had stated to such voter
that he was born in the L^nited
States, but that his father was born
in Canada, received, and the vote
held good. — Wrii/fit's vot<\ Ibiil.
(I. Where evidence was given of
parol admissions made by certain
voters, some years before the elec-
tion, that they had been born in a
foreign couiitrj', and also evidence
that since the parol admission the
voters had voted at Parliamentary
elections, and had sworn to the
voter's oath as to being British
subjects by birth or naturalization :
nM, (1) That the oath at the polls
couhl not be treated as tcytimony,
not having been given in any judi-
cial ])roceeding. (2) That by swear-
ing at the polls he was a British
subject by birth or naturalization,
the voter only stated tiie legal result
of certain facts. (8) That there was
therefore no presumption of natu-
ralization sulKciently strong to rebut
the presumption of the continuance
of the original stu/uf of alienage. —
SlirncL-'n role. Lincoln (2),.'J0U.
7. \Vliere a voter, in support of
bis own vote, swore that Iim was
born in the United States but that
his parents were British subjects :
Hdil, that the whole statement of
the voter must be taken, ami that it
amounted 1 1 this : " 1 was born in
tiie United States of British parents."
— Mulrcnnidi's rufc, IhhI.
8. Certain aliens had taken the
oaths of allegiance, &c., before a
Justice of the Peace of a town,
which oaths were administered to
them in a township, but within the
same county. Ifilil, that under the
Alien Act ;<4 Vic, cap. 'J2, sec. 2,
(Can.), tlie .lustice of tlu- Peace in
administering the oath.-*, was acting
miuisterially and not judicially ;
i
I
s
AP1'EI,LATE COURT.
SI 7
kitisli
itiou,
csult
e was
uatu-
clmt
V^L'.. —
pf)Vt of
was
ut tliat
jjects :
nout of
that it
born m
u'cnts."
con the
ictove a
V town,
terci
\ to
Ithin the
i.U;i' the
see. -,
Vuvc'^ in
acting
llicially ;
and that the oatlis weie propei'lv
adiniiiistercil. ffo/iiisnii's ro/r. Iliiil.
APPELLATE COURT. -1. Anappel-
hvte court will not, ex(.'t'))t under
apucial ciruuniHtancts, interftro with
the findinc of tin; court of first
instance on ijUf stionsfif fart dc]iciid-
ing on the veracity of witnesses and
contUcting evi(U,'nec. Ilitllroi, '1K\.
'2. In penal .statutes (|ne,stions of
donht are to he construed favoralily
to tlie accused, and wliere tlie court
of tir.st instance in a (luasi crindnal
trial lias ac(|uitt(>il tlie rcsiiomlent,
tlie anpellate court will not reverse
his findinj,'. A'o/VA On/nria, .S04.
.S. 'liic petitioner was not allowe<l
to urge liefoie tlie Court of Apj)cal
a charge of i mi u))t practices against
the rtspondtiit pcisonally, which
had imt lieen s|MTil;ed in tlic par-
ticulars, or adjudicated u])on at tlie
trial of the petition. .Suiilh Onffiri",
420.
ASSESSMENT ROLL. 1. 'I'lie idy
((Uestion as to tlie (|Ualilieation of a
voter settled by the ( 'ourt of lie vi-
sion, under the Assessment Act, i.s
one of value. Sfoniinii/, "J I.
'J. I'ar(d e\ ideuce is inadmissdile
to alter the value as.sesseW against
property in tiie assessment roll.
tSoii/Ji <liii'rill'\ 1»)'2.
,3. 'J'lie assessment roll is coiielu-
sive as to the amount of the assess-
ment ; hut the mere fact of the
name of a pi'rson heing on tlic roll
is not conclusive? a^ to his ri^lit to
vote. The Kcturning Oiiieer i.s
bound to record the vote if the jier-
sou takes the oath, hut that is nut
conclusive. Sorlh I'l'foric, .">84.
.bVir' l!.S.().,c. ',», .s. S, ;iiid 4! Vic,
c. -21, (J.
ATTORNEY. The attorney lurth.e
respondent may he mdered out of
court wlien a \\ ilness is luiiii.' ex-
amined on a charge of a eorrupt
l)argain for his witiidraw al from tiie
election contest, wlien tlie evideiiee
of sncii witness may refer to tiio
sayings and doings of sueli attorney
in respect of such \\ itlidraw al. Sonf/i
O.r/orJ, -Jh-i.
5ALLDTS. -1. The followinsi hal-
lota were held v.did : (1) I'.allots
with a cross to tlie rigiit just after
the candidate's name, hut in tlm
same column and not in the column
on tlie rigl'.t hand side of the name.
{'1) li.i'lots with an ill-formed cross,
or with small lines at the ends of
the cross, or m itii a line across the
centre or one of tlie limbs of the
cross, or with a curved line like the
blades of an ai ■■tier. A"/7A rirlorio,
•_'. Tlie following liallt'ts were held
invalid. (1) iiallots witli a single
stroke. (•_') Uallots witli the candi-
date's name written thereon in addi-
tion to the cr'- s. (.'{) I>ailots w ith
marks in addition to the cross,
by which the voter miylit be iilenti-
tied, although not ])ut theic by the
voter in oi'ler that he might be
idenlilitul. (4) ll.dlots marked with
a number of lines, (-'i^ liallots witli
a cross for each candidate. Ihhl.
.". <jiiiir', whether ballots with .a
cross to tlic left of the can lidate's
name .should be rejected, as the I'e-
jmty Heturning Oiiieer is not liouiul
to reje<-t such ballot-; under see. ;''>
of the Dominion ll!ections Act, 1871-
I hi, I.
1 The follo\>ing irregularities in
tlie mode ot marking ballot papers,
hel.l to be fatal ; (1) Making a
single stroke instead of a cross. (•_')
.Any mark which tont.uns in itself
a means of identifying the voter,
such as his init'ids (.r some marl':,
known as being one used by him.
(.'!) < 'ro.sses made at left of name, or
not to the right of tlie name. (I)
Tv.o single strokes not <-rossiiig.
Moiirk, 72."i.
.5. The following irregularities
held not to be fatal: (1) .An irre-
gular mark in the figure of a cross,
so long as it doi's not lose the form
of a cross, (•_') A cross not in the
]iioper compartment of the ballot
p: pin-, iiut .-till to the right of the
candidate's name. (;'>) /> cross with
a line before it. (I) \ cross rightly
placed, with two additional crossi'.'',
one across the otiur eambdate's
name, and the other to the left, (.'i)
A cross ill the- riidit jdace on the
back of the ballot paper, (tl) A
doubli' cross or two crosses. (7)
I'allot pa])er inadvertently torn.
(.*) Inadvtrtent mirks in addition
4
81 h
DKiK.vr OF c.\.s?:s.
to tlio cro<s. (0) ( 'ross luaile with
jm;ii iiiid ink in.stoail of ;i pencil.
ti, Tlift iic;,'leGh oi a Deputy lle-
tuniing Oilict^r to initial tiio hiiUot
p,\p(!tj', ;ifi(l to i)rovi.!i! pcni au'l iak
iiisteal uf a pi:iioil to mar!; them,
w'luM nor ;j\(iiil the cK'c-tioii. //'('/.
7. The ))etitinii(;f \mA fcci^ivi'il a
majority of the halhjts cii.st at tlie
election ; lai^ on a reeoinit ijeiorc
the ( 'oiintv ■lilil''(', certain l;.vlh)ts,
with othi'i' 11
larks oil tile hack
th
the initialsuf tiie Deputy Uetuiniti;,'
()(h';crs.wei'e rej' cteii hy tho('oinity
.IuiIl'c, thfi'c'hy i,'iviiiga majority to
th
(• it'.-jMii'ltMit. I'jvitlence waw given
on the hoatinj,' ot the pcuitioii that
tht; I),'j)iity lU'turiiing OHiecas luul,
from
a ini.st.iken iilea of tiieir 'iuty,
plaeeil the iiunihers of tlio voter.s,
as marl;oil in tlie voters' iiht, on the
h;i-ks of the liaUots. //./'/, tliat
(let- -i-j. y
■I, s. IS, the niari;s
t^o m ule ili'l not avoid tlic IjaHots,
ani'i tiiatsueh ballots sh>ul<l now lie
(Mmiited. Buns,;'/ {■>), :,]'.\.
8. S'-mlih\ that the( 'ounty -indce,
a(.thig ministerially on the recount
of l>ail its, could not liavo inve^ti-
gatcid by whom or tor what niotivi
suen lira
iieen maiie on
tht
ks 1-
liailots. li'iil.
!>. A vo'et who Iiad i'h-nUcvteetly
toin his hidhit, and wlioso ballot
Wi'.s rejeetcil on th;; coniiting of
vnti's, was a'low<'d his vote, the
jvid
enei
plOVi
lt''niled for t!
tnteu!
rth.
that no trick was
1''
l>urpo,i> o
f si
lowniL
h
•'. to vote. Siui/i'i,
)M Act ill its enaet-
W'inlirniili. :,:;i.
in. Th
ing part reijuires halhits to he
ina;k''d with a cross on any )ilace
\vithiii tin.' division winch eo.n ins
tl
le nanii- of tic cam
lidati
i;
iiinrked witli a stiaiu'lit lino Viithin
tliH divisi.
"I- w !th a cross on tin
back, were ti-iected. Ihhl.
1 1 . Observatioiis on tiie diMerenci'
botwcicn the iCngli-h and (>nt;irio
statates in thii respect, fln'il,.
Off
< 'ertaiii Drputy iMiniing
diot
1 'I'l's, hufore j.'i\nijr nut
baHot
s corrt" poililiiiL' W
itiitl
'ivAH attii'lied to thi! names of
10 iiiim-
VlCll
voter" on tlio voters' lists, Ifrl.l
(1) tuat the Deputy 1,'etnrning OiH-
cers had act"d contrary to law in
niiinlieriiig the ballots, and that the
ballots so numbered should be re-
jected as tending to the identifica-
tion of the vot(us, (-J) That such
eonduet of tlie Deputy Hetnriiing
Oliicers having had the eUect of
(•haii!.'ing the result of the election,
a new election was ordeidl. AVm/
//as/,:).: IS, 71)4.
S,r also p. '.':;:?.
BETS. -V"' pp. IS1\ (!'ii».
BHIBEKY. -.SV" Couuirr I'ltAC-
TICKS (2).
CANDIDATE HIS 0W;T AGENT.—
S<' pp. •Jil, (i'io.
CANDIDATE NOT SUPERVISING
HIS AGENT. .SV, pp. ,-)■_', .Mi'), .-,08.
CANVASSING. S.;- pp. <I7, 187,
■_'i-f, •_>4,). :t>'<, ;;f;>, :5s7, t.vi, .-.17,
(iiiO, 7«."), SW.
Case not in patiticulars.— .s«/'
I'p. -Jl, lr.:J. •.•!:;. Syl, -120, IS'.).
CHAMPEflTY. It i8 not a cliam-
peitous transaction that an assoei-
ati in of persons, wirh whieh the
petitioner was politically allied,
agreed to pay the costs of the peti-
tion. lOven if the agrceinout were
ciriuiportous, that would not be a
Kiiliicieiit le.isoii to stay the pro-
ceedings "11 the [letitioil. Sihih.
Silll''!"'. (i 1 V.
CHARITY. \.''pi). -Jl t, r>i:, ruC,
7.M.
COTOr.AELE APPOINTMENT OF
GcnariNESR. .-<■ p. 2; 1.
ccm:,iission to exahine v/it-
NE'jSE:.'. .\ roniiiii.s--ioii to examine
witn"s-;cs in a frnvign e mntry may
be issu.id ill the cise of the trird of
an eletiion petition. (.'<iriii<-'t.H i,.'l),
S(j:!,
pauer« to tin; voters at tin' t lection )
11 ■pie.stion, placed iiumbeiM on the
CORRUPT rRACTIcns. (I.) Gen-
erally 1. 'I''ie tot;il evp^miitiire
novel was !?()!(•. and the iuimhe>-
of voters on th'' roll w.as 4,*iti!).
l/ilil, that the exii.'iMliture was not
o\ce.ssi\e. /.'"■'' 7'ejvj/i/o, 7''.
(■oliKi'l'T 1'1!ACT1CK> d) (ilCNEUA ;.I,V.
M9
".(is.
fliam-
iissoci-
■\i the
10 "i^eti-
,t lie a
he l)i'0-
:^IE V/IT-
iti V iiii^V
1 . \ Oen-
nuim
\v:is
:.'. A caiiuiilatt'y appeal to liis
liiisiiiesH, or to liis fiuployin. iit ol
t.'a[iital ill inoniotiiiK tliu pio.sp. rity
of ;i i'Ou-titiu:iii-y, it lifiicstly iiiaik;,
is not prohiliituil \i\' law. H'. >■/
l',l.r!,oro, --'74.
:5. One 'I'., wlmwas on tli'' roll as
an I'll '<j tor, and iiuil soM iii^j jiiopuity
iii.luiie, 1S74. In'fori' tlif linal ru-
\•;^li()n of the Asne-snuMit Holl liy tlii;
< oiiiity .Imlm', was. witii tlu' know-
Ifil^'i' of liie ivspoiiik'tit wlio was
awa' a iloulit Lxistu'l as to 'I'.'s
liglit to \oto -rri\^j, ;,|) a[>poiiitiiu'nl
to act as soiutiuiur at a ilistant
polling pla'.'o, ami also a (.-rrtiticatu
fi'Oin the Hetiiiiiiiii; ( Mlioei- iniiler
:W Vic. c. :). s. •JS, to enahle T. to
vote at the iilaeu where he was to
act as such serutiiieei-, at v.liieli
])la('i T. voted without taking' tiie
\otcr"s oatii, and returned \\itli'>ut
entiM'in^u' njxm the duties of scruti-
neer. On a ()iiesti'<ii of law reseived
on the aho\e tacts for t!ie Court
of Ajipcal ; y/./f/, tiiat the a'^t eoni-
plaiii'trl of was not a uoi-rupt prac-
tice under the statuti: : hut under
the cireunr^tances, tiic Court gave
tlie re.-])oudent no co-t> in apju'al.
4. The intention o!'the Legislature
wa-^, that \ otes .should he gi\ en irouj
the eonvietion in tiie mind of the
votoi' that the eaiiilidute votcii tor
was tin; he>t pei'.-on fortiie situation,
iind that the public int''re.>ts would
he h .st ser^■•..d by electing hint :
and tliat the evil to lie eureeteil
was suj)porting a candidate for i-ai'sa
hicri, or jiersonal ww in money or
niones's ^vurtll to tlle \ oter //"/■'i'H,
■JS."..
.">. If an act. made acoriupt p'ac
lice liy statut'', is done by an agent
of 11 ciindidat''. but not in pursuit of
the object of tlie agtoicy or the
inte:e-tof tlie candida'.i', or in any
w.ay in relation to the el -ctioii. but
solely for tlic jiur]io.- ■. interest, oi'
gr.v.tiiicition I).' the a^i.-et, sueh act,
not being doin by su^h agent '/''<'
agent, i.> not witiiin th • penalties ot
H. ;{ of :\{> \"ic., <■. •_'. Li.iruh,, ;;!ti.
(1. Wliero corruiit pja •tiecsi by
a^'Mits, ami olher.^ in the inteie.-,t of
the i-o.spondcyil, afl'ectod less votc>
tli.-.n the majority (.'-■>) obt.iiuod by
the reS|)onfU'nt at the cieetion :
//•A/, under ;i!» \"ic., <:. 10, s :)7,
that.sucli corrupt practices tlid not
e>.t nd beyond the Votes allected
tliereby. ami dii not a\oid the elec-
tion. /.;„,.,/« (•_>), 4S!).
7. \\ licre, in addition to tlio
aijuve corrupt acts, bets were m.itlo
by agents ol the re.-,p(uiden^ and
others, w itli a nuni'ier of \i>U :s who
v, eie .supporters of N., the ojiposing
camlidate, the ell'ec;. oi the b.ts
being tliat in order to win the bets,
the \otcrs must \t)te for tlu: rc-
.-jioniK.nt. //'I"', tii.-it these beta
\\ ere to: the p.irpo.-,e of getting votes
ior the respondent, and were cor-
rupt pr.ietices ; and that in con-
nection with the olh r corrupt ajta
proved ,'i-i set out above, they ull'^'ct-
e<l the lesult of the elci lion ; jiud
that the cleetiinj w.is th.iet'(jrc
.■i\ijldL'd. //.■ il.
s. I'he maj irity of the rcsjiondent
u.is:..';7: but it apjicarod ineviut;n-0
that t\\ ) agi nts of the rcsponi.nl
had iuibcd Ijetwcen forty and liity
\ot'I-?: that in elo .e pro.ibnii,' to
till poll.-- spirituous liijiior v.a.> sold
and given at two taverns during
polling liouis. and t'nat one of such
.igcnts took part in fuinisliiug .sucli
liijiujr : and tluit such agent had
previous to the el'.'ctioii lurni>ijcd
>lri;ik or other entertainnicnt to a
nna'tini.' of el actors held for the puc-
po.-c of promoting the eleolioii,
//./■/. that the; i-esult of the electiou
had lierjii .-lileeted thereby, and that
tin- election w;'.-< vo;<l. W'"' 1/ < •(•
ii'.ij, (■_'), .*i;{;).
;>. /Vc .i/o.s.<, (.:. •\.--Pti,iii^ I'iicii:
corrupt practices uvoid an ehvtion ;
and tlni onu.s of prooi that tliey aro
not ^aiii'. lent to aiieet the majority
• >i the v.iies rotsiip'.ui the resp.md-
• nt. J'>i>l.
1»). Si-iir',!-, ii cvidenee >ho.vcd
t! at corrupt practices hail been com-
uiitud by a re-.poiidi lit, itwou'al lic
ini: .ini> of the t'ourt --o to ad.judl-
.,le whether tiie p. titiouer Wa3
williu'.' to wiilniruw' the eliaige or
lOt. Sc'iith 11' lii'i-'ir, .">.')lj.
11. The delinition of •■e nipt
p:.'.i ticc- " HI btu. W, and ti.i ■ ilect
ol .-'c. 'Zi\ or the < 'ontru.erttil lU';o-
tions Act of 1S7;!, i".- to tilt! 1.. port
of an Klection Ju ige to the .SpcLd.er,
c-.tisidcred. Xuilk I'lyliu-i", '\>i\.
820
DKiEST OF CASKS.
V2. Tlie fiiat priii(;i|)le of I'arlia-
nientary law is tliiit eloutions nmst
1)1' ffoo ; iii.d tlioreforo, without re-
ferriii.i^ to Htatutnry pro^'isioiis, if
trti.itiiig wixH canie<l on to such an
extiMit at to amount to Iji-ibciy, and
uiiilue iiitluonce was of a character
to aU'ert tlio election, the election
would 1)6 void. A single liriljed vote
brouglit home to a caiididati! would
tlu'ow doubt on liis " hole majority,
and Mould therefore annul his re-
turn. Jliiil.
M). Sc'inhlc, that tlic tern. " wil-
ful,' as used in sec. !tS, eaiiiot lie
construed in a tiariower sense tliau
the term "corrni)tly" in sec. !>"2,
sul>.-sei.'. 1 ; and th it the term "cor-
ruptly "' doe.snot mean wickedly, or
immorally, or dishonestly, hut di>ing
tliat v\hich the Legislature plainly
meant to forliid ; — as an act done hy
a man knowing tliat lie is doing
what is wrong, and iloiiig it with an
evil ohject. lliilliiii, ~'.'iV>.
Sec also I)isi,ir.\i.ii-iiA i ion.
(•_'.) Bribery {n) Offors of.
1. W'iiere a charge of In dieiy is only
the uiiaccc'[)ted oti'er of a linbe. the
evidence must be nujre exact tlian
that required to pro\ e a brdie actu-
ally gi\en or accepted. Sunffi dnii,
'!. Wliere the evidence as to brib-
ery consists of oll'er.s or pro]visals
to brdie, the evidence should be
stronger than with vesppct lo actual
bribery, hjust. Tunnifo, 70.
'A. Wliere tliiee \t>ters swure to
three separate oilers of bribery made
to each of them seiiarately by an
agent of the res[)ondent, which suih
agent swore WH're never made by
him ; //'-/'/, tliat the evidence was
not siiliicient to justify the setting
aside (jf the election. //li'L
4. The language of Martin, 1'.. in
the »'/;/(/;« ni..<" (I 0"M. & H. I'I'J),
ad()[)ted as a general rule applicable
to this case. //ji'iL
."). Where tlie evidence as to the
oiler of bribes was contradictory,
and the parties making ehaiges of
hriljery appeared to have buriie in-
dillerciit characters: //t/i/, tliat the
olTer of bribes was not .satisfactorily
establtslieii. l\''\'l,i,nl.[->), KS7.
(i. Where one party atlirmed and
the other party denied a corrupt
oiler between them as to voting for
the respondent: llfl'l, that the oti'er
was iiotsuHicieiitly proved. l)iiiiila'<,
'JO.'..
7. \ promise by an ag^nt of the
respondent when canvassing a voter,
that he "would see him another
time and things would be made
rii/lit, '' is not an ntFcr of bribery.
S'lrtli iiitorki, '2.')2.
8. XN'lu're, in evidence of oiler., of
bribery, an assertion on one side is
met l)y a contradiction on the other,
the uncorroborated assertion is not
suliieient to sustain the charge.
IKr.s/' Prf.r/joro, •_'74.
I). A charge of briliery against the
respondent, where the eviilenee was
unsatisfactory and repugnant in
itself, and rested more on suspicion
than on clear positive proof, was
held not proven. Xmili Onlnrio,
:{04.
10. One S., an alleged agent of
the respc^ndent.made otfcrsof sheep-
skins to two votiTs asti) their vutes
at the election, but he swore the
oilers \\ere made in jest ; but a.^i the
evideiice did not fliow that S. was
an a^ent of the res|>onilent at the
time of the alleged oilers, no ellect
was uiveii to the charge, y-ir/k
11. A statement that an oiler to
bribe \\as made in jest should be
received with great su.-picion. A
briber may make an oiler which he
intends should be taken seriously,
and then, if not accepted, he may
assert it was made in jest. Jbi'l.
I'-'. < Ml a charge that one O. bribed
a voter by pinmising to procure a
deed of his laiiil forliim if he would
procure votes for the respondent,
the evidence showed that though
the voter had so represented, the
procuring oi the deed had nothing
to do with the election, /hi'/.
]'.i. A promise to work for a \oter,
made witliout relci'ence to the elec-
tion and as a joke, not evidence of
bribery. //"Iimi, ~'M,
14. A charge that tin' respondent
promised to give a voter certaiu
work to do if be voted for him, was
dispioved by the evidence of the
Cor.ljrPT l»UACTICKS (2) ISmiiKT.Y.
821
.1 1.
\\c\\ HO
I hi- may
l-ccuve a
wouUl
tholliiU
Itcd. t'lio
1 uotiiing
'./.
a \
otcr,
lent
itaiu
was
of the
Ipon
luni
respondent and .inotlior, and Ly tlin
Oflniis.sions of tlir voter nuido to
other parties. Jliii/.
ir». Tlie (.videnco in stipiiort of
the oH'er of a present, or sonietiiinj,'
nice, til tlie wifeof a votei' to imluee
the voter to rtffraiii fmni voting;,
showing that it had referenee to a
(litteri:nt eh.'ction than tiie mw in
(lutistion, an anienchiieiit of tiie par-
tieuhirswas ivtused, and the (•liarge
dismissed, //n'l/.
l(i. The tl;arg(! .igain.st tiie re-
sponih'nt and one !'... f)f an olt'er of
nioue'V to, and to jiroiure an appoint-
ment as Justice of the I'eace for, a
voter in ecMHideration of liis voting
for thi? re.spomh'iit, was .supported
by tiie eviiUuieo of the voter, \\ lio
showed tiitter hostility to J5. ; Imt
tiie ciiarge was denied liy tlie re-
spondent. And tile evidence .simw-
ing tlie .statement to he imiirotiahUs
and tiiat, the election contest was
carried on hy the lespotnU'iit with a
scrupulous and honest endea\i)r to
avoid any vitdation of tiic law
again.st corrupt prMeliees, the charge
wa.s di.smissed. l/i/'il.
17. A charge against an au'-nt of
the respundent, that he had pro-
mised to procure tlie ollice of ]iolicc
magistrate for one \\',, was ihiiied
by the agent and the responileiit ;
and it further ai>peiri)ig that W.
had acted on the conmiittec, and
votetl, for the ojiposiiig candiiiate,
the charge was dismissed. South
Onto rill, 7'">1.
18. Charges against the respond-
ent, that he had pi'oiniscil an olhce
to the sou (;i a voter, aiul a cotitract
to the voter himself, were contra-
dicted l)y other evideni;e, and tli.s-
niissed. //*('"'.
l!l. J'hc li'siion lent canvassed a
voter, who at the trial swori' that
after he had agreed to vote fur him,
the res|iondent proniiscd to i;LVe the
voter Some wcmU ; the i'eS))oM.lent
denied the promise, //i IJ. although
the voter ajipeared to he a tiuthful
witness, and was not siiaken oa
cross-examination, that the promise
of employment was not made out
beyond ail reasonalile donlit. A'l/zVA
OnUirio, 78;"'.
-Sr'pp. ir.4, sro, 458, eiu, no.
(2.) Bribery (In Acts of.— 1.
The petitioners ha\ing given tvi-
(h;nce of ecuruot practices : Ihlit,
(\) That the election was void for
liriliery hy agents. cJi Tliat cor-
ru))t ])raetl('es extensively prevailed
at this eleetien. I'n smlt, \.
'J. (Jiiiff, whether the .ludge
]iresiding at the trial should not
direit notice to be given to the
parties who. friun the evidence, were
apparently guilty o;' eorrupt prac-
tices, so that the .ludge might decide
upon their lia'ulity to disi[u;dilica-
tion, and report them under the
statute. Ilihl.
•'!. Tl)(^ respondent, after aniuiunc-
ing himself as a candidate, gave s]0
in two s.') hills to a child of a voter,
then three or four years old. which
had lii'cn nnnied after him. fie had
two years pie\iously intimated that
he would make tlie child a (I'esent.
ll'l'l, that the gift, under such cir-
eumstaiices, was n(jt hiii.ery. dh n-
■1. The plain and rciisonable uk 'Ui-
ing of die statute is, that w hen the
prohil)it<Ml things are done in order
to induce another to [U'ocure, or t(»
endea\dr to procure, tin; return of
any per.-on to ser\e in I'arlianient,
or the Note of any xoter at any
election, the person so ihiing is
guilty of hnhery. /v's,' Ttirnitla, 7<i.
5. A'heie a candidate in g)od
faith intendiid ids election should he
conducttHl legally, ami had jirintiHl
aucl circulated througliout the coii-
stituiMicy a synopsis of the new
law as to corrupt )nactices, and had
causi;d ail e iiiorial article to l<e
jirinted in a ne\vs[iaper, and liafl
taken trouble to have the law ex-
plaiiii'd to the electors, /A-A', that
although many of the acts done
diiinig the ch'rtion cieatcd ilouht
and liesitati(Mi in the mind of the
. ludge. yet as thi' leturii of a nieiii-
her ought not to he lightly set aside,
the .ludg(; ought to he satistieil that
the acts done' were done to intluenre
the electors and so done corruptly,
and this election wa.-, upheld. \\'(st
Toroiiti), it7.
(i. Where in onlinary cast s there
is evidence to l'o t(j a j'uy. hut on
which tic- .ludge, if sitting as a
juror, would Imd for the defendant ;
> I
S:J2
DIOKST Ol' (ASLS.
in siiiiilai' uasL'.s in .loctioii tri;i!s lie
<)nj,'lit to find .igaliist tlic oliargc of
iiiviicry. Ihll,
7. WIhtc in'nicy ^\•a.^ paid to
voters for Hcrvious agrotd to hu
reiidurud, hiit siu:li wcrvicoa wwv
not ri'iidcred o\vin;j; to tiiu miscon-
duct of tlio voters, Mill ii [layiiieiit
WiiH not bribery. Ih'i'i.
8. A votor wiio bud a ehiim of ■■?:!
from a i'ornier eleeliou <;f rospoml-
<'nt, when canvassed to v<)to said lie
did not thiidi be slmuld vol';, evi-
dently puttiiij; forth the >! that v;a.<
dii'! to him as a grievance. Tbe
olerk (jf an agent of the i-csiiuiidint
piomisid to pay it to him, and he
voted, and the nur.iey was paid .iftcr
tlie election, and ohar;.^ed liy the
eh'rk in the a/ciit'.s accounts a*
" paid -1. Lindy ;>'-,"' Ijut witiiout
the iuiowledge of sneh agent. An-
other agent of the respoiiileid, .M.,
wiio v/as tieasnrcr of the wanl,
and Wiio aware of tlie claim, and had
toM tlic v.iter it woidd be made
rigiit, paid tl>e lir.st agent's account,
liut did not then take i)iiti;ju] ir
notice of the jiaxincnt, and it w:is
i\ot explained to iiini. The clerk
liad b(!en rci] 'letted by his cmployi r
(tlie agent Hrst mentioned) to can-
vass ;•. particular voter, but was not
ein[)h)yed as a canvasser generally
by anyone. Held, (1) Tiiat ^au■ll
e!<ik was ii^it an ascnt or .sub agent
of the respondent. ' [i\ That the
paymiiitof the ;v_-count Ijy the agent
M. was not, nui'ier tiiccircu!n>tances,
a ratiiicalioii by him after the ai't,
so as to alfect tiic election. Ihiil.
i). An c'e( tor, vlicn asked to vote
for respondent, Miid th:it it woid 1 be
!i day lost if he went to vote, which
Monhl cost him .'?1. To which th-'
can\asser replied, " (,'ome out, an 1
your ?! will be all right." /A/-/,
not snihcient "^o e.stabbsli a oh.arge
of bribery. .)/;;//.•/, 1 J4.
111. A Voter who had been ire-
i|U() itly tincii for drunl-.cnjiess was
o\nva~s>ed liy ('. to vote for the re-
^pondcnt, and was asked by him
'■ how nuich of thiit mon'^y" (paid
in lines) ••Jio would take biek and
iea.ve town until thi.' election was
lAc;," Counsel for the re>pondeiit
then admitted tliat C was an agent
of tiie respondent, and that the
evidence was sailicient to avuid the
electicjn. Cui-iiicn'l, 2(»:j.
II. Tiie respondent had in 1S7;{
compromised with his creditois for
Tit) cents in the .SI, nnd tjien pro-
mised to pay all ius creditor^ in full.
-About the time of tlii' election he
))aid one S. , who had at the two
previous elee.tions .supported the
oj)p'i-,ingcamiidate, a p irtion of the
pio'iiisc I anmunt. //»///, undei' the
eiicumstauces, the payment was not
bribery. I )iiii'l i.<, "Jo.'i.
I 'J. W'hcie Icdf a cii'l of wood
Was given to a votir in ]ioor lircuui-
stanci'S during theeleetion, ;iiid the
giver sw(jrc 1 hat it was given out of
ehaiity: and where a Voter Ma3
bailed t/Ut of jail o.i the day of poll-
ing by a friend, but, according to the
evuh'nec, witii uit reference to the
clectloji. 1 1, Id, not acts of br.bery
i;{. K., ao agent for W urd No. '2,
w'lile canvass-ing a voter in \Var(J
j\o. (i. gave him moiu.'y t> get boi'r,
for which the votci- paid a les.ser
sum, and as tlie vot«'r was p )or, told
him to keep tlie change. Hi hi, under
the circumstances, not an act of
bribt;ry. Ih'il.
14. Tiie e\idc;u:c rc.>|K!ctiiig a
charge ot Iniljcry, hy piynunitof a
tlisjiuted debt, \\as held insuliicient
to sustain the ciiai''.'c. Xnr-'l' I'/r;-
l.'i. An agent' of the respoiulent,
while canvassing a vot<.'r, ga\ c ^S to
the widowed sister of the voter, an
«dd friend ot his. w bo w as then in
reduced c;rcniu.staiic<'S. 'I'iie agent
.stated t'.iat tliis was not t!ic lirst
money so yi'" u. and t'lat it was in
no way C'lauected witli tlie election.
//..'■', u.idei- the eircnmst,ince!», not
an act of bribery. //"'(/.
I(i. O.ic .M., tic linaueial agent of
the petitioner, .igrecil v.ith a voter,
who ha 1 a dili'criMice v\ ilii the poti-
tiooc:' ab .ut a lioht to (uit timber
on the \ oi.er'.s Ian 1, to settle the
matti-r — the voter, when e.vnva.sscd
to vote for the petit oner, referring
to tins dillti.enee. M. .signed an
agie('nient in tiie petitioner's luime,
wlieroby be .surrendered ii'iy claim
to cut timber e.vcept as therein men-
tioned. //■•'''/. (I) That a surrender
of the riglit tu (■ it timber oa the
<'«'i{i;ii''i' rrvAcTifi^- cJ) i;';ii'.t;i;v.
M2:j
liilunt,
s8 to
ter, an
icu in
^'liUt
lir.st
Iwiis in
, nut
^ciit of
\ otor,
c pcti-
Itinibcr
Itle the
livusscil
licring
lieil an
uauu".
ly ilaim
liu ui'-n-
o:i the
Inndn of umitlit^r \\;n a '• viilunhlo
coiisjilcrntioii," w itiiiii tli(' iiuanin;.^
(if thi: Iii'iIm ly clause;-; dl' ;{•_' \'jc., c.
LM. (•-') 'I'liat the .i.L'i'nt M. \v;is -iiilty
of an act of Ixilx^y ///./.
17. ','""'''. ^^ ln'tlicr tin; word
'• cinpldviiicrit " US' (1 ill tbe liiil)' ry
cliiM'iOH of the Ai't refers to an in
(ictiiiiti^ Ih'i'jiil;, (ir would incliulc n
iiici'i; ca.-ual hiiiiiL;. W, .■<//', h r'ni-n
•J74.
IS. One il., ;i votrr. Ii.i.l n tliiiiii
aunin^t tlio !•( s|)<iii(lont, luid M., liis
a^i'iit, jiml another, f ir five ycais,
which lie IlkI liecn tjiiloavoiiiij; to
jivocuro iiayriient of. Wlicii ean-
vassed at thi' time of the elci'tion. he
Htatcil Ihat il li>' did not jict it set-
tled lu' would n<>t vote for th(> re-
spondiMit, M. indneed the re.sjiond-
eiit to tdve lii> promissory note to
II. for the debt, lait did not u'ive the
respondent to understand, directly
or ui.lirectly, that th(> note iiad any-
thin;,' to do with tile eleetioii. //./(/,
( i ) That it is alw a\s open to in<|iiirc,
under staliiti .s siniilai' to the ]]lee-
tioii Acts, wh<!thcr thedel't \\as]iaid
in aceord.uicc w ith the lci;-al ohliga-
tioii to piv it. or ill order to imliifr
the voter to vote or refrain fr'"'ni
votinir. J-) 'Atiirniiiii: If.'/v.-.. .J.. '
That on the evidence, the iiiodvc
whieh induced AI. w.is that of pro-
<;nriiii.' the vorer if. to vote at tin'
olectioii, and f!iat tlereliy an act ot
biihery %v.ia eomniitted by M. as
aueli a'L,'ent. Ac/'/' <////"/•/'', ;Utl.
l!*. I'ribery !.•» not eonlined to the
P-ctual ,i;ivinsj of money. Where a
f^ross'y iiiade(|iiate price has been
]iaid for wovk or foi' an artii'le. it is
elenrly bribery, ''fi-.tinifl, ,"il7.
-0, A larire sum (if money, avcr-
aij'iiiL' -"^.i per head, had bi en spi'ui
by two of tliH a^'entsof the icspoinl-
ent, ami money had been .L'ivcn b\
tluMn to parties without aiiv iiistrue
tions. .'/./</, that where such iituie>
bi I lien applied im)U'niiei ly, i'
niiist be eoniiderei! that it was in-
tended to be so app! ed. ///»/.
-1, (ine I,., il tavern-Kei'i)cr. was
told by H.. one f)f the r<!spoiiilent's
canvas.-er.s that, he t'ioi;-ht I.. I'onhl
that he il'd not kiiriw w hat was in-
tcndi'd. Neither H. nor 1'. wero
cv.nniiK'd. //./</, on the eviilenee,
thiM't! was no ai'tna! oH'cr to biibo,
S'oi'lh \"i-inrlii. lit''.
'-'•J. Tlie avoidance of an election
for an net of bribery lOmmitlcd by
the a'.;cnt of a candidate i- ji civil
V
■cdiii'.;, and is not bronybt about
to puni.sh the eaiidid.itc, but to
sc(
nie an uidiia-^sed eleeti
A''/)',
kIiiik ('i'J"
■J.'l. Moiny was ;;iven t i eoitain
\')tvrs to make bets with othcis on
the result of the elect ion, but as
there was no evidence of a |)r(!\iMUs
niulcrs'aiii
liii;; as to the vi'tt
■ucli
hcts were not bribciy. The prr.etice
of niak
dcmiii
bets on an uleeliiui eon
dasl
it brib.
cinj.; like a (
devi -e U
cum-
S'i"lli \iiljh!'.; iW'O.
•J I. One I'., s'lme vears liefore the
.•leeti
ion, el unied that tie- re
■I"
d-
ent was iiide'ted to him. but the
re
■ipoudi
lit deuiei
causei
I all
• ilil'
d
he-
the di>pMti
twientliem. One II., four months
befoi'e till' election, was oTnpb'yod
Kjtiier
■nut
by !'. to eolleet ai
from tlu' respondent, and liiil .so
11. s-tatcd to 1'. that as the resiioiid
ent wa-- in a ;.'ood luimor, it
'M
be a ;:i)od o|'i>oituiiity t.'!."-tll.e old
aeeoiint settleil. and asked I', if lie
would 5>u'iport the reapmid.'iit in
case tin o
1.
plied thai
i-ouul was s 'ttled. I'
he uii'.'ht pronii -e w h;it
th
d. II. then took theaccoiut
e respondent, wlto looked it
;ud u'ave hi- note for it. H.
!)on
il.ut IK ver refeirod
t'l lite vleetion. nor to the' settlc-
iH'Tit, as ;>.lVeet;ng the election. J!rh/,
that the re.spoiident lui'l not been
jruiUy of bribery in t'd- 1 i-Misaetion,
Son/li I )ii/(in'ti. 7.' 1
•'"• ■■' ■''•. lii ' _ u, the lloiii-
: I. points to
..•duablo con-
'■.V.
i.tif.!!. IS iLjivou to a vot-.^r.
d
a e uniminitVM -nera
Tl
e' re-.ii.un
oweo oi
de'bt, wl
sonr
tie
tin
tina
He .
-f the
lent
had been
A .is sue 1 fel
■•tiiiu.
I- lor
• IL .;h„llt
iind uas
fret.S'T or .i""LlO from I'., if he' woii'd iufofiueJ th.nt his opp.uK iit.s \.ere
stay at iioino dnrine tlse election.
I.. e.Npe;'tcd that the money would
be .sneiif at his tav< rn. and showed
i-ui;.' tile ii!)n-i).iyment el it ag.i
111 ill the <:lei'tii
Tl
le 11 :■[>
list
,d-
eat stated he would not pay it until
i'' I
M.
824
DKIEST OF CASKS.
after tliu election, as it inij^lit ivil'oijt
his election. Ililil, that the pi'o-
iiiise to pay Khv di'ht was not niailo
to prneiirc votes, lait to silence the
hostile eiitieisrn, ami was not theiv-
foi'c lii'ilii'i'y. yiiiili Oiifiirii), 7S.").
-7. /''/■ .Iniiiiiir, .1., that tlie liii'.
inn f'f orators ami canvassers at au
cltictiou is brihery. /hiif.
28. An ayent of the respondent
C. employed one W. to j^o with him
on tlio evening before tlie election
to several elei;tors, from whom both
Cand W. niadt^ eoloiMble pnrehases,
hilt with thu c')rru|)t intention of
indueini,' the persons from wlKJni
the |)urcliasc's were made to vote or
refrain from voting at the election.
//(/'/, that ( '. and \V. weie <,Miilty
of bribery, and tiiat the election was
avoi<hd in ciin-<e(|ueiiee of tiieii' uor-
nipt acts. > 'oniiriiH (:\), so:;.
(;{.) Treating (./) Generally.
— I. Where a cliarge of a corru[)t in-
tent in treating is made, the evidence
mnst satisfy tiie .lndi;o, beyond
reasonal)le doubt, tliat the treating;
was intended directly to injhience
the eUctiv)n, aiul to pr(jdiice an
etrei.:t upon the elector^^, ;'n(i \\as .so
done with a t'oirupt iutcnt. (I'li /i-
!/'"■'•,'/, S.
2. Treating, when done in I'lm-
plianee with a custom prevalent in
the country and witiiont any cor-
rupt intent, will not avoid an
election. Wi'lldinl, 47.
.S. Where tiie object of ,m a^ent
in treating is to gain popularity for
himself, and not with any view of
advancing the interest of his em-
ployer, such treating is not bribery.
Eoxl Toronto, 70
4. That tilt! furnishing f'f reircs'a-
nient to voters by an agent of a
candidate, without the knowledge
or consent of the candidate imd
against his w ill, will not be siiflicient
ground to set aside an election, un-
less done corruptly or witli intent
to inllueiice voters. ////(/.
5. Qtinn, whether the Treating
Act, 7 William 111., c 4, i.s in force
in thi.s Province. Diuh/h-!, *20,'i.
(i. Treating is not /nr yi- a corrupt
act, except when so made by statute;
but the intent of the party treating
may make it so, and the intent
must be judged by all the eircnni-
atanttes bv which it is attended,
No 'h Mii/ilU-^i:,; :<7(i.
7. Sfiiili!i\ when it ia done by a
candidate in order to make for hun-
self a reputation for good fellowshi))
and hospitality, and theridiy to in-
iluenco electors to vote foi' him, it
is a species of bribery, which wouhl
avoid his election at comtnon law.
S. When the respondent who, in
the eiMirscdf hisbusiiiess as a drover,
had been in the habit of treating at
taverns, tr('ated during his canvass,
but to a less extent than was his
habit, and not ajiiiarently for the
purpoe of ingratiatiiiL; hini.'^elf \\ ilh
tli(! electors. //'/'/, nmler the cii'-
euinstances, that such treating was
not corrupt, and his election was
not avoided. /////.
0, The general practice which
prevails here of persons drinking
ill a friendly way when they meet,
woulil rei|iiiie strong evidence -d' a
jirofuse e.\p 'nditure of money in
diinking, to induce a hidge to say
it w as corru|)tly done, so as to m.ake
it bribery or treating at common
law. K'tiKj.-'ioii, ()"J.'i.
10 Treating at an idcction, in or-
der to be criminal, must be done
corniptlj', ami for the purpose of
corrupily inlluencing the voter.
SoHlIt X'or/olk, (ifiO.
11. The giving of free dinners to
a number of electors w ho bad come
a long dist:ineo in severe winter
weather, in the absence of evidi-nec
that it was done for the purpose of
inlluencing the election eillu'r bv
voting or not voting, or because such
idectiirs v. ted, was not a corrupt
act. y<>rlli \"Klorio{'l),(u\.
\'l. One I)., who had been a can-
didate for various otiioes for twenty
years prior to the election in c|ues-
tion, and had freely employed treat-
ing as an element in his canv.issing,
became an agent of the respondent,
and treated extensively, as was hi.s
common practice, during the elec-
tion. The respondent was aware of
l>.'s practices, and once, in the
early part of the canvass, cautioned
T). as to his treating, i)ut never re-
pudiated him as his .agent. Held,
comu'iT I'nACTicKs (3) Tiu:.\'riN(i,
825
of
.'V.
to
11110
ltd-
lUoll
apt
on tlie evjleiice, timt ns 1). iliil uo
iiion- in tilt! way of treiitiiiir iluriii^'
the I'li.'ction tliiiii lie had done on
foi'iiior occasions, and had employed
trt'atin^j; as ho ordinarily did ms his
nri^'univnt, and had not used it as a
means of corruptly inllucncinj^ tlie
electors, he was not K'l'lty of a
corrupt practice. K<tst Elu'm, 7(iD.
in. Sonlil'', the treating proved
in this case, if practised i)y one not
theretofore j,'iveii to such practice,
would have hceu sinlicient to have
avoided the election. Ihiil.
14. Observations on the law as it
row stamls, as holding out induce-
ments to can<lidates to employ men
who are hahitnal drinkers to can-
vass by systematic treating and thus
cause electioneering to depend upon
popularity aroused by treating,
rather tlian by the merits of the
candidates, or the measures they
advocate. ///«/.
i'.i.) Treating (/<) Meetings of
Electors. -1. The respondent, who
was tlien representing the county in
the Legislature, on two several occa-
.sions at the close of public im etings
of electors called by him to explain
his conduct as such mendier, treated
all present to li(iuor at taverns. H e
liad not at the time made up his mind
to b(! a candidate at the tiicn com-
ing election, but told the electors
tliat "if they gave him their sup-
port he would expect it." //»;/'/,
under the circumstances, that such
treating was not done with a cor-
rupt intent. (Hi'iiijdrrjj, S.
•2. Qu'vre, whether sucii treating
was in any case a corrupt practice,
under sec. (il, of .S2 Vic, cap. '21,
or other tiiaii an illegal act which
subjected the party to a penalty of
.•fsiOO under sec. (i.') — the statute
pointedly omitting all mention of
treating. Jh'id.
.S. Jieasonable refreshments fur-
nished lioii'i fill' to committees pro-
moting the election are not illegal.
Sintth iiny, Ai.
4. About an hour after a meeting
of a few friends of the respondent
at a tavern, o!ie of their number
was sent some distance to l)uy
oysters for their own refreshment,
of which the parties and otlif s
partook. 'I'he following day a friend
of the respondent treated at a
tavern, and not having change, the
respondent ga\e him 'J."» cents t(»
pay for the treat. //</'/, not to be
corrupt treating, nor a violation of
;{(! \ic., c. -J, s. -', \Vill(iii<l['l), 1>S7.
5. The respondent, who was a
member of a temperance organiza-
tion, held an election ineeting in a
loc'dity within t lie electoral divi^iion,
and about an hour after the meeting
had dispersed, went to a taveiii
where he met about 10 or 1.') per-
sons in the bar-room, to whtjin he
mailu the remark, "Hoys, wid you
have something ?" Nothing was
then taken ; but one K., a supporter
of the respondent, said he would
treat, and he did treat the persons
present, and the respondent gave
liim the money to j>ay for the treat.
//'/'/, (1) That as the meeting for
promoting the election had dis-
persed an hfuir before the respond-
ent went to the tavern, this was not
a meeting of elet'tois. ('!) That the
treating not having been done with
a corrupt intent, was not an otlence
under ;VJ Vic, c. '1\, s. (il, as
amended by [M\ \ic , c. '2, a. '1, nor
at common law. Jiiinitax, 'JO').
(i. One I*'., an agent of the respond-
ent, on the day of the nomination
of canditlatcB tt) contest the election,
and while the speaking was going
on, treated a large number of per-
sons at a tavern across the street
from the place of the nomination,
for which In^ paiil S7 or .SS. Ililil, a
corrupt priictioe by an agent of the
respondent, which avoided the elec-
tion. Ihhl.
7. The treating of persons by a
candidate at a tavern during liia
canvass is not a treating of electors
witii corrupt motives. L<iii</oii,'2\4.
8. Where a mcndier of the rc-
spcuidenl's coiiiniittee, on the day
of election, inviteii some of his
friends to his house, which was
opposite the polling l)()oth, and gave
tiiem beer, itc. , during or soon after
polling hours. Held, notaeontraven-
tion of .'-i'J \'ic. , c. 'Jl, s. (iO. Unil.
!). One F. , an agent of tiic re-
spondent, brought a jar of whiskey
to a meeting of electors assembled
for the purpose of promoting the
820
DliihS'l' or CASKH.
eliictioii, luiil ;,'ivi! luiiilvs hoiii Mil'
BaiiHi ti) tin; rli'uliiis pi-.i.-iuiit. Tills
was tii'M a <(,rrupt prartico, ninl ;i
viol.lti')!! of till! I'llcrtioil l,;i\v of
iMlS, ;n aiiuiiilcd l)y llie Kiuntinu
Aotof is;:!, ami tliiit till; <!lc(;r,l()li
w,iM,ivoi<luii tluMvliy. \y, <l ))V/'//y /•
Ion, jai.
If.'. A im!<!tii|i,'()i tlici'lfctor: ua.t
li'.'ld ill a town iiall, and (.-'. iiml a
inimlxi' oi (•.\t:tt'n\-i wont, from tliu
ini'utini,' to a taviaMi, w li<rc t.iiuy
wore trcalcl liy ( ', , in aL,'i!nt of ro-
Mpoiiih lit. //. ''/, {[) Tliat tlii.-i was
a inoi:tiii'^ of (ilci'tiT.-i a.s-.i!riil)luil for
tin.' purpoMi) of ]>i(iin(>tinu,' tin? I'luc-
tion ; ;uul (2) tliat tlm truatiii.^' I»y
C. wa.s ii cornipt nr.ii titu. J'Ja'4.
Pi ((,■>„„•■>, •Jl.i.
11. Afti I" .1 Mii'i'linj,' < f cloutf'rs in
a town li.ill, Hoiiiii friciiils of the ri;-
Bpondt'iit fiMnaiiioil t()'_'''tliii- c..i[i-
KiiltiiiL' alioiit the <'lui-ti'ni. liiid
afterwards wvnt to a tavern, wlicro
sonio of tlieni Imardcil, and liad tv\
oysfcir snppor. //</«/, Hint t'le ovi-
(loiicu Wiw not fntiiciicnt to sii.stain
till! cliar^'ij tli.'vt tlii.i was imtcrtaiii-
nuiit tiiriii.''lipd to a ni"i.tiMg of
doctors. Xorih \'i,-inn,i, J.VJ.
!'.?. A I'liar:^'.! of tnatin;,' .-i ni.-ot-
in;,' of cloi'fc'W.s liy aa allcgod agi-iit of
tlio petitioner '.vri ; not H'isiaiiu'<l.
owing to tlio alli".i'd ag':injy not
liiiving buiiii satistactorily piMw 1.
Ihhl.
l.S. Uefivsliments pro- '.'ivl ,.t a
iiioctin,' of (^loctor.-f, all of ntio pcdi-
tioal p..rty, or at p iv.oft'!);,' of a
coniinittco to aid in i^ ■irniM-; a.' in-
did.vto, by and nt •■' ■ ■ • ■- r>
oik; or morn of tlifir .
in somu extroniu ci c,
do( nwil a br.-auli of tlio iv .f
tile .-tatut'j a 'tiinst trciitiiii,-. L. ■'.://,
2.s:{.
1 1. A iiiuctingof ilio f!
hi'.'d tit a tavurn, ut wliicli
ditl.it.os were prudout. .\
an-io, and tho nn;^;l;i!,^' i ic-uu n^i
and tlin partii'.i left l!u) roo'n as a
di-<ord(^rly (.Towd, ani liiv.':iii p.illiii','
oil' tin ir Wilts and tdki'd of liglit-
ing. A treat wa-< ])rop.)si;il to (piii-t
thf, ].(:opio, and oni! K. (iicld liy
f^'i/smi, .] , tn lie ail a'lMt of the
respondent) tri;at"d, atid tli-.-ir ■.d
quieted down ,ind 'Iwiudied .■
JJtld (p:r n'tho>,, ,'; , t'' •, ...
t:eaMii„'. iinder tlie eiivni,i,taiii i'h,
was not fnrnisliin^ ilrink to a ii.fi't-
llig of c.leetoiN a>M.Mnl)|.d fur the
pniposeof prcHiiotiiiL,' the rl..(.ti,,||.
.\(>r>/i ihilii,;,; ;i01.
l.">. On appeal, tho Court. wiili<jut
f.xprt'ssing any opinion as to the
treating, held, on tiiu ovidinec,
that K. wa'- not ;in agent of the n -
.spondent ,il tli" time of the ulie-i;d
treating. //.('(/.
1<!. One \\'., a nieiidii'r of a poli-
tical assouiation, iield to Ijc agtiit.s of
the respondent, treited tlie mem-
IieiM of the as.voeiation present, at a
meeting in u tavern. //-/./, that
tlu! niemhers so pr<!seiit were elee-
tors asHelldiled to plOlllOte the e|r .
tion of tile ii'sp(.indeiit uitliln . (d
of the i'llietioii (..aw of iSii.s, and
that siieh trtrating was a eoi'iupt
[iraetice by W. North Hn'ii, \M\2.
17. After the nomination of em
didates on tlie le.nunatioii das, aid
Ml another oeeasion, after a " meet
irig assembled for the purpose of
l.roiiioting the el..H:tion," and after
tll(^ imsinesH for which the elei tors
iiad asyenibled was over, the elec-
t'Hs left the building in wh'ch the
meeting was lied and dispersed to
various taverns, at which their vo-
hiclo.'i had been put np, and then
bef(n-e leaving tor lioine treatcil eacli
other ; and at one of the taverns
the re:^i. (indent himself iJ.'irtooli of
a treat. MA/, (1) Not fniiii-Uing
drink or other entert '.innient to
trieetings of electors within s. (11 of
tlio Kli'ction Law of iSfW. (-J) That
the niciiting of electors for the no-
mination of candiilates, is a '• meet-
ing assembled for tho purpose of
promoting tho elei.tion."' Norfh
Jli'ldli-se.i; .')7(>.
(3.) Treating (e) on Polling
-lay. - 1 . The distrilnition of .spirit-
uous li',U'ii nil the polling day, with
ulie oliject (if promoting the election
of a candidate, wili in.iko Ids elec-
tion void. .-,<jiif/i Ui; II, ,'r_>.
U. I'pon (|Ui stioiLs lesei'ved by tliu
Uota ludu'c under '•The Contro-
verted Kleetious A-t (d' 1S71," it
appeared that 11. aiel 1!. voted for
re:ipondent. I!, -cpt a saloon, which
was closed oii the ])(illing daj' : but
np.^tairs, in his pii\att3 residence,
I.e gave b'-er and \\ ldske\ without
CDI.l'.l IT I'I;A( TK l>; (•")) Tr.KATlNC
h-27
to
vc
then
each
ovns
of
lit to
1 of
"n:it
110-
int'ct-
sL- of
North
cliurxi' to Hcvirnl nf liis fviviuN,
aiiioiiL! ulioiii wiTi- t'rit'ii<U of Koili
(Mii'lid.itL'H. I>,, will) hail 111) I'u'i'ii.to
to si'll li(|iior, Holfl it ;ita plai'o ik iir
OHO I'f thi> I'olls to all i>i rsoiis iii-
ilil)'i'i'('iitl\ . 'I'hi.H w!iM not iloiio l)y
II. or M. ill tliii iiitcrost of citlH'.i-
cuiidiilut'-. or to inllii.'iiei' tlu; flee-
tiiiii, M. artiiii,' .-imply for tlic [nir-
poHC r)f i,Min ; ami tin' (.aiiiliil.itr diil
not know of or s;iiH;ti<in tlvir pro-
COOtlill^^H. //'Ill (tllOMLjll \\ itli SOlllO
ilonlit, asto II.), tlint, iM'itlH'r II. nor
15. Iiail coinmitttMl imy (Mrnipt prac-
tice within stM'. -47 I't 'M \ u:, in\^.
|{, and tliri'iiforo hail not forli.'itiid
tlicir \()tr;.s : for they had not Ihmui
i.'nilty of liri'ji'ry or niidnc inlhioiRX',
and tiicir acts, if ilh:^'al and pro
liihiU'd, wcri! nntdoiio '• in ri'loruiK.'c
to" tlu' (;ii rtion. wliioh, under hi;c.
■17 of ;14 \'ii'.. i;ap. ;i, is roipiisitc iii
order to a\ oid a vole. /Ji'nrLrilfi^
i;i;i.
'A. Oil tiiu chiy of tlu' I'loi'tinii ill
ipiu.'^tion, Mini diirini.' pollin;,' hoiir.s,
one M.. an n'^i'iit of tin- rc.'»[)o!ideiit,
was iitreri'd hy a ji'Tsi.n nnkiiowii
to liini spiritii'u^i limuir (w lii:-l;i-y)
in ;i, hottio, which ."uuli aj;oiit, attuv
ronionstratiiif,' witli .-iUch pin'son. ac-
cepted a'.ul <lraiik at tiio polling
iilaee whoic hucIi a;,'ent then was.
The unknoMii per;?oual,so j,'avt:.spirit-
U0U1 liquor from the .tanie b ttle
to oilier iiurson.s then present. /A ti/,
that a.s the Lpyislatin'o h.'id. liy the
provisiona .is to tiu' scllinj; or Ldvint;
of ;iipior dui'iii,"' tli<\ h 'Ur.s of pi)l''iig,
pro\idi-d for the piiiii.shnieiu r>f one
particular cla.s-<, nhieh wa.sdctlnul
to lie the seller or ttiver, it did not
intend to includi) the other elass,
the piirehasor or receiver, to which
no refcrwico was made, fixc'pt infer-
ontially ; and that therefore .such
agent, as t!ie reeiiver of spiriruou-,
licpior durin;.' sue!' jvilling hours,
Wi-s not L'uilty of a e'-vrupt pra<'tice.
11''. H T''ro„('o, 171».
4. 0;ie I'"., a, tilV< I'll-iceeper. w;is
iriveii .?!."> by the it^pnideiit, and
reiiucstod to appoint a scnitiiieer to
act for the respondent .it the pdl
on poll
ope
!av.
I-'
.■nt hi- t.iVL''
01
ler^ons tri.i
1 pollin:,' d.iy, and vHric
ted th
lere (liirinL' polling I'-ci
hours. * 'ouMsol f'T t!n! rosiiorident
th" le.Hpoiiileiit, atid that hih acts
w ri' ''iiilieient to avoid the eleetioii.
II. I.I. that althoii-h tin; Cmiit di-l
not adjiidieate llytl the respnndent,
hy ,L:ivin;.( tlm >:'\ an<l rt'ijiioliny I'",
to ajipoiiit a scrutineer, h.'iil con-
stitiit'jd iiiin an agent for a'l piir-
posiB, it Wan the prnitici! of the
Court to t.iivc^ the !idniis-ioii of coun-
sel 111 placii of proof of ;ii;ei!(;y, .'ii d
thercforu til'! udiiiission of lioiui.'icl
as to \'.\ aueiiey was siltjieir-nt.
//' .''/ fuitlier, that I", as such ai;L'nt,
had betiii guilty oi a corrupt prac-
lic'O in keeping' l.;s tavurii open on
puUin;^ day, and that sueii cor-
rupt practice avoided the oleetioii.
/.'».-..-.//, 1<J!).
.''i. On tho d:'y oi tiio election,
and (i''i;;v^ the hours of P'l'iiiu,
one \\'., an a','fnt of the ie-p'Mid(;iit,
was otlcreil a treat in a t.uTrii
within one I'f tl'.c pollin;^ divisions,
of which such atrentand others tiniii
l)art<ioU. //'■/'/, thatjjivini; a treat
in a tav(;rii ilnrini.' iioiliii;; hours
was a corrupt praetiii.. nnd Ijciiii;
an act particiiiafcd in hy nn a^'enb
of tho respondent, thu election was
avoiiled. S')iiili Es.'.'\ 'l?,Tt.
(1. One 15. WIS appointed, in writ-
iti"^, liy the rcjipondent to act as his
ngent for polliu;.; day, Uiiriii;.,' the
day ho went to a tavern and a.-ked
for ::iid was ^iveii a ;,d,is3 of lioer.
Hill, tlnit II. treated Inmself, and
neither gave nor .-old, and waa not
therefore guilty of a c(iirn[)t prac-
tice, h.'at' / ^1' '')•')'} r >, '2 \ri.
7. Where cvid-neB of an act of
keepinu; open his raverii on ]~jo!liiig
■ lay, and selling li-pior tlicrcin a..i
iisiiiil, by I'., i\a agent of tho i);^ti-
tioner, came out on cross exaini :ia-
tion, and durin;^ the ar,;;uii'ont the
evidence w.as obj(!"*--il to Ijeeauao
th" eharij'c was ik>1 in tlic p:'.rti-
einars, the cm-jo v.'n-i not considered.
Noiil, llr''>rm, •2r>->.
S Oiiu .M.. an -vjint of the re
spondent, treated at a tavpiii dur
ini; polling hoi;r,-i on polling clay.
The evidence was, that d'.e.ititers
wer" put dov. n.and j-oo)i!y 1 > Iped
tlieniselves, but there was
.0 evi-
d<.
tint
'I'll
o at the tiino.
spirituous lijuir-- were
u* evidence w.i- objeeled
the charge Wi;s
iftt r evidence of the abi.ve facts. not mentioned in tho particulars,
dmitte
w.i.j an
ag
'cut
Imitt'-Hl sntiject to the objuc-
S2S
nroEsT OK c.\sp:s.
tidll. Ih'il, (1) Tliiit tilt' ii.itliic of
the troat in tlio liar-iMfun of a
country tuvin'u laiscil tln' ])ft!.suiii]i-
tioii that the treat was of spiritiiom
lii|iior.-!, and was a corrupt jiractice,
wliicli avoided the ch-ction. ("J)
That liail an application l>ecn made
to add a particular embracing the
charj^c, it wouM have l)C('i) ^rantccl.
!l. S< iiilili', /" /• d' If II II IK , ,],, tliat
!is to tlie seller or givei' of treat on
polling; day, the only person liahle
to the penalty of .SlOO would he
tile taverndvceper, as the statute
docs not autliori/,e two pcMialties
for the same act. \'<n'lh (!ri ii,
■M\l.
10. One L., an alleged agent of
the respondeat, went into the
tavern of one I), during ))olling
hours on polling day, and purchased
spirituous liquor, with whi>,h he
ticated himself and several persons
there present. Ilihl, /i' r (•iri/mii ,
.1., that the )>eiialtics provided hy s.
(l(i of the Klection Law of ISliS aj)-
ply only to the tavern-keeper, wiio
as such is ahle to eoutrol what is
done ou his own premises in viola-
tion of the Act, and that the treat-
ing by Iv. was not a corrupt prac-
tice. Pn- Dl-iiprr, V. .1. A. (1)
'i'liat s(!ction ()() of the I'Jeotion Law
of ISCiS must he eoustrueil dis-
tributively. ('!) That un<ler the
first part of tlu^ section the tavern-
keeper is the only ]iersoii who can
incur the penalty, for not keeping
his tavern closed during the pre-
scribed time. (I!) That under the
second part of the section, the
persons wlio incnr the penalty are
('/) the tavern-keeiier wiio sells
li(|Uor in violation of tln' statute.
aiul (/') the purchaser wlio gives tiie
licj.ii ; purchased by him to iiersons
in the tavern. Liiirulu^ SlU.
11. ')iu! (."., a member of the
rosponilcnt".s eommitteo at \V.,
partook of whiskey in the l<itchen
of a tavern at \V. during poilJPL'
hours, and also, when bunging a
voter from the town of (>. to tiic
town of W. (witliin the same
electoral division) to vote at \\'.,
treated himself and the voter in ().
//( '(/, by the Court of Appeal
(I)raiu i\ V. J. A., dUfH nil iih ), that
<'. was not guilty of corrupt prac-
tices \\ ithin s. ti(i of the Llection
i/iw of bS'iS. Siiiilh >/,i/<iriii, 4'JO.
IJ. //'I'/, further, tliats. (id of the
Kle.tion Law of ISCS (.T2 Vic, c.
•Jl), as amendeil by ."iii Vic, c. 2,
applies only to .shop, hotel and
tav(!rn-keepers, who alone are liable
to tiie penalties for keeping open
the tavern, etc., and for selling or
giving spirituous li(|Uors during the
prohil)ited hours. ///('(/.
13. //</,/, by the (.'oiirt of Appeal
(reversing W'ifson, .1.), that the
proiiil;ition in sm h section (ti(i) as
to o|)eii:ng taverns and giving or
selling li |U(n- " in the municipali-
ties in w lich the polls are held,"
ajiplie.s to all thr' municipalities
witlMii the constituency, irrespec-
ti\e of th( p!;i<'(! tvhcrc tlie V(jte is
given or to lie given. //I'n/,
14. Th(^ respondent, on polling
day and during jiolling hours, went
to a tavern at W. and partook
therein of spirituous or fermented
lii|uor, for which he did not then
pay. //</(/. //' /• \Vi!-<-iii, .L, that
he did not "sell or give' spiiituous
lii|Uors within the meaiiiiig of s. (Hi
ot the llleetion l^aw of l.SiiS. /hi'/.
1."). Hythcnrd sec of :5!» Vic,
cap. 10, which is substituted for
the iKith sec. of the I'llection Law of
HilS, tavern-keepers, or ])ersons
;icting in that I'apacity for the time,
who sell or give licjuor ;it taverns
on polling day and within the liour^
of polling, are guilty of corrujit
practices ; but persons u ho treat or
are treated at au(-]i taverns are not
att'ected by the statute. --/b/vr.s
/•o/.. Liiimlii (•_'), ,-)()().
10. ('ertaiii voters met at a
tavern on polling day, inid one !>.
said he did not know how to mark
ids ballot. One of the voLers, after
showing P). how to mark his ballot,
according to tiie candidate he de-
sired to vote for, treated, Ihht,
tliat the ^reating uas not a viola-
tion of s. m of tiie noiniiiion Mlee-
tions Act, bS74, nor a corrupt
practice under s. ilS of the Act.
Xortli Oii/di'io, 7S.").
17. One ^r. canvassed a voter on
polling d.ay, and urged him to vote
for the respondent, and, while
>i 4
i^a
"^1
rolilMI'i' I'liAi-lICES I) INDII' INI'I.UKNCK,
.S2!>
ic,
fur
of
(lUS
line,
■nis
iqit
at or
not
at a
lie l'>.
luai'U
after
allot,
i\v
ll'I'l,
viola-
Klec-
ivruyit
Act.
Iter on
|o vote
I wliile
ciinvassiii),', trcati'il tlie voter four
timcis ; tlie voter tlien wiMit ami
votcil. //'/-/, that tlie ticatiii!,'
Was f'M- tlie piiriiiise of coiTU|itly
iniiueiiuiiiij; the voter to vote nr
refrain Iroiii vntini: at tlie election.
/'wl.
IJS. A seriitineer for the re.s|)oncl-
eut iiiul some wliinUey with him on
jiollini; (lay, and treateilthe llcpiity
i-ieturiiiiiL,' Olileer, i'oU f.'lerk, and
anotiier m the jiolliii;; .statiini.
J/f/i/, not a eiirril|il. piaeriee. //<('/.
(I.) Undue Influence.-- 1. 'I'hu
rcsiioluleiiL was eliar,;,'iMl with iii-
tiinidating (jovernniunt servants
durin;,' his speeeli at the nomination
of candidate.^, liy threatening to
proeure the removal ot all(!ovcrii-
ineiit servants who should not vote
for him, or who hIiouM vote against
him. 'I'he evidence showed t.iat,
thongli 111 the luNit of dehati . and
when irritateil l»y one L'., he used
strong language, there was no
fouiKlation for the corrupt charge :
and as it should not have lieiii
made, the co^ts in respoet of the
same were given to tin; respondent
aiiainst tlie iietitioner. W' l/nm/,
187.
•2. One H. ehiimed the right to
vote in respect of ids wife's pro-
perty, and was tohl hy \V., an agent
of the respondent, that he eouhl
not V(jte unless he oould swear the
property was his o\mi. The voter's
oath wa.s rtwul to him, and the
agent rejieated his statement, and
said he would look after the voter
if he t(j<ik the oath. The voter ap-
peared to lie doubtful of Ids right
to vote, and withdrew. ////(/, chat
\V. was not guilty of umlue inllii-
enco.
1^ (Jiiir>i, Whether the act of the
agent as ahove set out was undue
iuiluenee under ;?"J \ ie., e. jl, h,. 7--
II III/ 01
1K\.
■}. One \\'., a vot/r, who was in
arrears to the (.'rown for the luir-
ehase money of a lot of land, was
canvassed hy 15 , an alleged a;.'eut
of the respondent, wluj told him
that the Oovcrnment wouhi look
sharply after those in arrears tor
their land who did not vote for the
Hupportera of the (loveriimeiit.
H<1<1 (reversing W'iUon, .).). that
55
what oeeiirred was ii/irii/inii fill iH' ti.
or an e.vj'n^ssion of opinion upon a
siihjeet on which every one was
competent to form an opinion.
J\iir//i 'hi/di-K,, :i()l.
."). .'shortly hef. i< polling day the
respondent's agents issued a ciniiar,
the suiistanee of which was that
they had ascertained upon uiidoiilit-
ed authority that \\'., an inde-
pendent candidate, despairing of
election liim.seU, was procuring his
friends to vote for ('.. the opposi-
tion c.mdidute. W. denied tin-
truth of this ie])ort. //«'/</, that
this was not a " fraudulent device, "'
u ithiii the me;iiiiiig of st^c. 7- of •{-
\'ic., cap. "il, to interfere with tint
free exercise of the fr.inchise of
\iiters. J-Jiis/ Xnrliii.nili' rliiiiil. :'>.>7.
• i. The respondent. ;it a pnhlie
meeting, claimed that, whelii r
elected or not, he would have the
patriJiiage of the constituency in
reference to approje-iations aiid
appointments, //i/il (resersing 11'./-
soii, .(.I, that the respondent w a.s
not guilty of undue intliienci,' as
dilined hy s 7- of the ]'>leetioii Law
of ISdS, nor us recogni/ed hy tin:
coiiiuion law of the Parliament of
lOnglaiid. MiixkoLii, \'tS.
7. To sustain a genera! chargi; ol
nniliie inHueiice, it would lie neces-
sary to [irovi' th.it the intimidation
was so general and (txttiisive in it"
operations that the freedom ot
electiiin had ceased in consei)Uence.
Il.„l.
S. Two agent.s of the respondent
gave a voter, M,, .some whiskey on
p(dlingday, and took him in a lioat
to an island, where they stayed for
some time. One of the agents then
I'ft, an^l the other sent .\1. to an-
other part ot the island tor their
coats, huriiig M.'s absence the
latter agent left the isiaiid with the
boat, but .\!. got back in time to
vote, lieingseiit fo; by the opposite
jiarty. //./'/, that the two agents
Avcre guilty of undue inllueiiue.
..Vo/'/i ( hittir'i'i. ~^'<.
i.'> ) Hiring Teams to Convey
Voters to the Poll. -I. On the ad-
mission ol th ' respondent'^ counsel
the election w.i~ avoided, on the
gnniiid that agctnts of the respond-
ent had, during the election, hired
ll
H.'U)
D I (JEST OF CASKS.
and piiiil for ttjanis to convey voters
to tlie polls, /'rinri Lilintnl , 'I'l.
'J. Tiic hiring hy an in;(^nt of tin;
rcJiJondcnt of ii railway train to
oi'nvey vou•r^^ to and from places
along tlm lint; of railway where they
eiiuld vote, was a p;;; inent of the:
travelling expenses ot vott;rs in
uoiiig to and from the election.
\\itiiin tlm nus'ining of sec. 71 of '.VI
\'ic., c. "21, and was a eorrit|(t piae-
titx', ami iivoided the elei;tion.
yiirlli Suitfiii-, *)().
;{. The payment of a voter's ox-
pynses in gomg totiie poll is illegal,
as sm'h, ami a corrupt piMctiec;,
even tliough the ])ayMie *, may not
lia\(i lie(in intended us a hrihc.
Soaili (Iri 11, ')'2.
4. ('ahs aiul carriages were liirtnl
for the use of committee-men and
canvassers during tne eh'Ctiou and
on the day of ])oding, with instruc-
tions to the ilrivcrs that they were
not to convey voters to and trotri
the poll. One call was however
used for that purpose for the great-
er pa't of th(! day, hut without tlio
assent of the agent of the respond-
ent, who had charge of tin; eah.
//' lit, that as the evidence iliil nut
show that the I'alis ami carri iges
W(!re eolorahly hii'ed for the pur-
pose of l)rih(a'y or c<)nvcying voters
to the poll, or that oni; cal) was so
ussd with the assimt of the agc?it of
respondent, the hirnig was not an
illegal act within s. 71 of "W \'ic.,
c. 2\. Il'is/ Turunto, !)7.
f). ( >no M ., a cartel-, who voted
for respondent, at the re(|uest of
1*., the .respondinit's agent, carried
a voter live or si.\ miles to the ))oll-
ing place, saying that he would do
so without charge. Sonn- days aflin-
the election, I'., the agent, gave M,
H'l, inteiidi 'g it as eompeusati in
for the conveyance of such votei- to
the poll, hut M. thought it was in
paynu'iit for work which ho inid
done for 1*. as a cnrter. The can-
didate knew nothiuL' of tlm matter.
//'/'/, I hat there was jiroperly no
piynn'ut hy I', to .\i for any pur-
pose, the money he wj given for one
purpo.^e and received for anotlier ;
but ih.it if tliei-' had been, it was
made after P. "^ agency had ceased,
and there was n:> jirevioiis hiring or
proini.se to pay, to which it could
ndate back. HrorhnlL; i;«).
(!. If such payment had been
(istahlished as a eorruiil practice, it
<sonld have avoided I', "s vote, but
not M.'s ; and it would not have
defeated the election, for it w.'is not
found to liave been committcid with
the knowledge (U' consent ot the
candidate, but the contrary. ///(</
7. < hi polling day, one \\ . asked
two voters to go with him and v(jti!
for the re.«[ioiident, and he would
bring them back, and they <;iuld
fcrd their iiorses iind liave diniiei'.
\V. sc-nt one of his horses on some
business of his own, and hired Irom
oiic ol the voters a horse, fm- which
W. paid him 'lOc., ami then drove
with the two voters to tin: poll.
Ill hi. not a hiriiiif lif a horse, i;tc.,
to carry voters to the poll within
s. 71, nor a furnishing of eiitertain-
nu'iit to induce voters to vote for
the respondent, within s. (il of the
MIcction Lavv of ISIiS. Xortli Vir-
toihi, 'I'rl.
8. '{"he ('olirt declined, in the
state of the law jirior to the |)oin.
Mlection .Net, 1S71, to exclude iu-
cpiiry as to the payment of travelling
expenses of persons going to and
returning from the ])(dl, inasmneli
as such iiaynient might amount to
bribery. S'oitli Virtoria, oSl.
!). \Vh(!re tuc ainouuts paid for
hiring teams v/ere fair and reason-
able, such hiring was not bribery
under the Doin. Con. hUeetion .\(;t,
l.S7.'i. North Vi'foria, (il'.'.
10. Where a canvasser for the
respomlent received money for hir-
ing teams, and hired from those in-
debted to him, and agreeil with
them to give them credit for tlu; re-
spective amounts to be [laid for the
teams, such an arrangement was ii"t
evidence of corrupt practices. /Iii'l.
11. Money given to a person to
hire a t(!am. and to go round can-
vas.-^ing, held, on the evidence, not
bribery. Jhi</.
\'2. One I,., a voter, hired a horse
ami cutter on the day of the elec-
tion, and with M., a scrutineer for
the respondent, drove to the poll
and voted. The day after the poll-
ing L, and M. returned to their
COSTS.
Hin
I or the
Ifoi- hir-
lios'- '"■
.,1 with
t!u; ro-
tor tho
\v:is iii't
Ihi'l.
IIHOU to
lull oan-
|in:e, n<>t
ii horse
liu'or fur
Hie linll-
Ito tlicir
#
iioinis, ;iii(l oil tlio way M. f^avr 1,.
?4 to piy for til liorsi- and I'littcr.
//lid. (I) that tlir payiiu'iit ot 84
liaviiig ixMii niaduaftcr tiu; oicition,
ami not haviiij^ hcM'ii iiiailc corruptly
to iiilliK;ii(,f tlio votur to vote for t.ie
rcsiioiiiU'iit, was not a oornipt nrac-
tici' or a wilful violation of si'c. !M!
of :{7 Vic, cap. <l. !•_') That M.'.s
aL'riH-y was a liiiiitid oiio, ami had
<'(!aso<l Itct'orc the payiiiciit in i|1ich-
tion. Iliilliiii, ~'.\t).
COiTS. I. Thu prtitinii wasdis-
inissi 1, hut owiii^ to ili.' uuu^c
aid i npnidtiit ai.'ts of tin; nspoml-
ciit, hi; was allow(!d only onc-lialf
of till' taxalilo coHts. 'I'li ii'iitrri/, S.
'2. W'Iiii'l; hiiiioiy hy an agi'iit is
|irij\iil, costs follow the event,
iven tluMih ))('isonal cliarycs niaile
aL,'ainst the ri.'spomlent have not
Ikgii proved, anil there having lieeri
no additional (.'xpensc oceasiom-'d to
tile rospiiidi it iiy Hiuh personal
ciiarges. Soiii/i (I'ni/, "rj.
15. There heiiig no :,'rouiids for
eliarL'ing the ri'spnndent personally
wil.li eoiiiipt piaeliees, and the
scrutiny iiaving lieeii aiiaiidoned,
the costs of tliosif parts of tiie case
wen: ordered to he paid hy the peti-
tioner. IJut witli respect to the
other costs, though the respondctit
was successful, the matters were
proprr to he iiiipiired into in tile
piililic interest, and each jiarty was
left to pay lii.s own costs. L'ii.<f
Tonn,/n, 70.
4. The election was sustjiined,
liut it iieiiif.' in the puMic interest
that the matters hrouglit foi'ward
.should liavtdieen impnreil into, and
as tlie respondent had not. exercised
supervision over the ixpemlituies
in coiincetioii with the election, the
pctiliou wasdismissed without costs.
II I .■it 'J'oroiilo !.7.
.5. 'i'lii; petitioners were (u-ileied
to pay the costs of tiie respoiclent
up to the liieetiiii,' of the I'lleclion
(Joiirt, and the co>ts of the speiial
case ; hut as to tiie i^ost.s ol the
trial, I ach party was ordered to pay
his own costs. Moml:, I. '14.
'i. The petitioner, after a specia
ea-e had lieen reserved, ajuie ired
be'dre tlie.Iudgi' trying tiii' election
putiiioii, ami cou.suiitud to the aoaii-
deiiment of the special ea.■^l■ and the
di'-missal of the petiti.in with costs,
and it was so lildered. li'isl Yoric,
7. The respondent was ordered to
jiay the costs of the petition ami
trial, except th; costs of issues found
in his lavor, part of which costs
was to hi' paid hy tlii' petitiiuier to
respondent, and part w;is to lie
horiie hy each of the parties. Wil-
Idllil, |s7.
X. Tlie costs of investigating
ciiarges of hrihery against the re-
spohdiMit's election agent, though
not estahlisiied, were .•"uanled
aLrainst the respomient, owing to
the ei|uivocal conduct of his a^ent
ill the matters which led to the
charges ; also the costs of other
c'-.arges of hrihery which were not
estahlislicil..inil tiii! co:Usof jifovilig
tiiat. .several tavern ki epiTs, for
their own proiit, had vii''ate(I see.
(i(i of the Election Law of ISliS, as
the witiiess(;s who ga\e evidenci! of
these niattcu-s also gave evideiu'e of
oilier matter.-, a.s to which it was
rcason.ahle they should have !"eii
fluhpieiiaeil. W'l .-if WiUiiii.iliiii, 'S.W.
it. The petitioner was declared
entitled to the gemr.al costs of tlie
inquiry, and thecost>. of tiie evidence
inciiired in proof of the facts upon
wliici; the ejection was avoided ;
hut the eests ineurrcd in resp et of
(•barges whii'h the ]>etitioiier failed
to prove were dis.illowcd. South.
10. That a-! the Jietition had heeli
reiiih'i'ed neiH'ssary hv the mistakes
of tlie l)cputy lleturning ( )tlicers,
for w liich neither the petitioner nor
respondent was respoiisihle, each
))ait\' should hear liitj own costs.
/^/^.^'// (•_'). o I! I,
11 jturing till' progresa of a
si'iutiny of votes, certain hallot
papers, counterfoils and .1 voters'
list >vere stolen from the court,
which had the etfect of riuidering
the proceedings in tho .scrutiny use-
less ; and in disposing of thec'o-ts,
tluM 'ourt ordcri'd the respondent to
j(a\ the costs up to the date the
election was avoiiled, hut that,
under the eircuinstanees of certain
hallot pa|iers having hcen stohn
which rendered the scrutiny useless.
8:'.2
DIGEST OF CASES.
eacli party iiiust l)(>;ir his own co.sts
of the scrutiny. Liwobi (2), KSi).
I'J. VarioiH acts of ln'iheiy and fit'
'joloralilt,' cliaiity liavinu; In i^ii proved
against tlic ai,'i!iits and sul)-a;,f('iit.s
ot thf rcspoMMUit, tliu uluctioii was
set aside, with Cdst.s, including the
costs of the eviclenee on the personal
charges against tlie respondent.
ConiiraU, ."j-tT.
!.'!. The respondent sought to
establish, on an incpiiry under a pre-
liminary (>l)ieetion, tliat the peti-
tioner (the u[iposing candidate) had
heeu guilty of lirdieiy, and was
therefore di»(|ualitied as sucli. The
ini|uii'y was not eoiieluded, as dur-
ing its pendt.'iiey t\u'. i'lnglish l-]li'e-
tion Courts iield that hrihery w nuld
not iiisi|ualify a petitioner ; but so
fai' as the evidence went, wlule it
disclosed siieh a largi^ expenditure
of monpy by the petitioner and liis
iigents as to lead to the suspicion it
was not all expended for the legiti-
mate pur[)oses of the election, it did
not show ijribcry by the petitioner.
Tlic respondent then consented tohis
election being a\dided on the ground
of bi-ibcry l)y one of his agents
without his knowledge or consent.
Il<hl, tiiat tin; general rule as to
costs should prevail, and tliat the
respondent should pay tile costs of
the iiKpiiry as well as the general
costs ot the cause. Snni/i /!r/i/'n ir^
14. The petitioiu rs, after .i notice
from the respondentaduiitting brib-
ery by one of his agents, exauiined
witnesses on the personal charges,
which were not proved, and in de-
termining the »[Ue.stion of costs, it
was /i<l(l, that as the Petitioners
might have come to court on tlic
notice served by the ropundcut,
and have asUed to have the election
set aside, and .as they liad attcmjit-
ed, but had failed, to establish tlie
personal charges, the respondent
should oidy ])ay such costs as he
would ha\e iiad to pay had the pe-
titioners accepted the notice served
upon th'un ))efoie tlie trial. /(''>/
jViirt/iinnl>('rf((iii/. .")!!■_'.
1."). The eli'otion was set aside
with costs, except as to the costs of
certain charges which were unwar-
ranted. .V party, though success-
ful, is not entitled to the costs of all
the witnesses he may siibpieiia, nor
is the fact of tlieir being called or
not called the test of sucii costs be-
ing taxable. Xhiijara, .">()S.
l<i. The ])articulMis not having
been properly ])r( pared, the p(!ti-
tioner, whiU; obtaining the costs of
till' pioceediiiL's, Mas disallowed the
costs of the jiarticiilars. Kiitl Xarlli-
iiiii/)! rldiiif, .")77.
17. 'I'lu! iietitioner having been
warranted in continuing the inquiry
as to the per.'^onal complicity of the
respondent with the illegal acts of
his agents, was held entitled to the
full costs of the trial. KiiK/sfo/i,
IS. The petitioner was held en-
titled to the general costs of the pe-
tition, except as to the cases of the
voters whoso names were not on the
Voters' lists, and a-, to the scrutiny
of ballots. \ ■,■'/! I'irliiria {2), Vul.
1!). 'i'he ricturuing Otticcr having
acted f.urly in rejecting the nomi-
nation p:i]ier in tliis c'ase, each p.u ty
to the petition was left to lu'ar his
own costs Siiii/U Hi iij'n ir CD, ;(J."i.
'JO. The petitioner was held en-
titleil to the costs of the charges on
which ho sncceedKl, and the re-
spondent to the costs of tilt? charges
on which the petitioner failed.
Xorth nDiJi-fir, 710.
•J I. The petition was dismissed
without costs, following tlieC'n-;v'(7i'-
/; /•;■"•-• ccx CIX L. T. N'. 8. :?:>(): 1
"o".\l. >'t II. iJlil). I oM Eh/iiu 7()'.l.
'2'1. The petitioner was allowed
his costs, but not the costs of the
charges which he failed to establish.
CoriuraJl (.S). SOS.
.S'" also pp. 187, r>7i>.
CUSTOM OF THE COUNTRY. Sv,-
pp. 47. .'>7i>. (i'2.'), 7()4.
DELEGATES TO CONVENTION. .'^^ "
pp. 187, 387, 4-20.
DEPUTY RETURNING OFFICERS.
S'l pp. olii, 7-0, 7'il, 7S.'i.
DISQUALIFICATION. — ( 1 .) Of Can-
didate. —1. The resjioiideiit while
canvassing had refreshment for his
men and two horses at a tavern for
part of a day and a night, for which
8-v
DlsiHAIJl'KATION '1 OK < ' ANDI DATK.
,s:i:i
lie paid till' tavti'ii-kcepcr S.'i, ami
iio\t (lay '^'> iiiort', in all SIO, with-
out asking for a bill. Tiic hill
would liiivu ainountoil tf> aljoiit 8.5.
Tliu rcsponduiit stated that the
tavern-kucper was an old fritaii of
his, and was jnst .staitmi; in bv.si-
nt'ss, andtliat \u: tiinUL;ht it iiL,'htt:o
]).iy liiin as it W(;re a uoniphnniit on
his (irst visit t(^ his tavt-rn, and tiiat
hi' hiliuvi'd hu would have dune the
Homo thini; if it was not ulortiou
tunc. //' ,'J, that liciii;,' an isolated
<jasL' ill an uloction ciint(:st, fici'
from profuse exptMiditure. and 'oliis
Ix'ins,' a (|Uasi criminal trial inv<ilv-
int; L^rii vous results to the rcspouil-
cnt II found aforiiipt praitii-i;, .such
payment w.is not — after tliccxplana-
tioiis of the ri.'spniiilent -an act of
hrihery. i/li ii'jurri/, s.
"..'. The respondent entru.sted a'' lout
•STUi) to an ajjent for election pur-
poses without liavim; supervised
the expenditure. /A A/, that this
did iioL make iiim p..n'S()iiallv a jiarty
within ."U \'ic., cap. ;{., s(!c. 4(! to
every illegal applieatimi of the
UKjiiey liy the iLTt^iit, or ')V those
\\ iio r(!ccived money from him. lUit
if a Very excessive .sum had been so
entrusted to the agent, tiie presump-
tion of a corrupt purpose might
Irivc been rea.sonatple. ■^oiiili <li'< ii,
.'{. A candid:iti! in good f.aitli in-
tended tliat his eh.'ctioii slioidd lie
con lucted in aceordaiico both with
the letter and the spirit of the l.iw :
and lie sui)scribeil and paid n<i
muney, except tor printing, .\lonev.
nuwuver, was given by trieiiiis o!
the caudiilate to dill'ereiit ()ersoiis
for election purposes, who l^ept no
account or vouciiers of what they
paid. //'A/, that liribery v.ciuhl not
be inferred as ag:unst thecanditi.ite,
who neither knew nor desired sucii a
state of things, from theouiission of
tiiese subordin.'ite a ^eiits to keep an
account of tlieire.\peiiiliture. especi-
ally as tile law was new, and con-
tained no provision simil.ir to tlie
Imperial statute, which re(juiri s a
ilet, tiled statement of expenditure t(t
be furnished to the letuiiiing otlicer.
Hut it is iilways more satisfactory
to liave the expenditure shown by
proper vouchers ; and if money is
paid to voters for di.stril)utiiig cards.
or for teams, or for ri'freshimnts,
these will be open to attack, and
judges will be less inclined, as the
l.iw becomes kiKPwn, to take a lavor-
aiile view of conduct that may bear
two constructions, one favorable to
thei'andidate and the other un'.ivor
able. Eii-'l Torniil-i, 70.
4. The re-;]iondent, a postniaster
111 the service ui the l)ominii)n of
I anada, became a candidate at an
election on the 14th and 'Jlst March,
l.'STl. ami was elect'd. On the 11th
-March he resigned Ins oliice of post-
master, whicli was accepied by the
roslmaste!'-( iciieral on the Kith of
Miu-eji. Mis accounts with the Post
Oliice [lepartment were closed, and
his siiecf.-sor ap|)(iiiited after the
election I'.vidcnce of the notnnety
of the alleged disi|ualilicati'>n of the
rispoiideiit was given, which was
that such alleged dis(|iialilieation
was a matter of talk, and that all
the people at the meeting for the
nomination of candidates were sup-
posed !o lie aware ol the supposed
dilliculty ;is to suclidis(|UalilicatiMii.
//'/'/. tilt even if the respondent
w;is disiiualitied for election, the
JiuL'e could not on such evi<lence
declare that the electors vot'iig for
the respondent iiad voted perverse-
ly, and h.nl therefore tlirown away
their votes, so as to entitle the ))eti-
tioiier t<j claim tht: seat. ]l'i.-ii Yurk,
1 .".(;.
o. r.e'ore siibjectiiiir a caudiilate
to tlie penalty of rlisi|ualilicatioii,
tlie .liidge should feci well ;issured,
beyond all ])o.-,sil)ility of mistake,
that the ofl'etice charged is estah-
lislu! 1. If there is an honest eoii-
ilict of testimony as to the olFcnce
irharged, or if acts or hiiiguagt; are
reasuii.dily su>ceptib e of two inter-
pretations, one innocent and the
J thcr culpalile, the .hldge is to take
care tiiat he does not adopt the
culpable interpretalioii unless, .after
the mo^t careful consideration, held
convinced tliat in view of ali the
I'ireuinst.iiicos it is the mily one
which the evidence wari.ints his
adoptii.L' a> the true one. Wilbnid
»). On a charge th;it the respond-
ent fill'ered to brib.' the uife of a
voter by a " nict' ]M'eseiit," if she
would do what ^lie, could to prevent
k:
834
DlfiEST OF CASKS.
her liusli.iiid from votiu;,', three
witnesses testilii'il to tlie (iticr ; the
respoinleiit (leiiietl, and another wit-
iiesM who was pr> .sent lieard notliing
ot the oiler. On thi.-i evnh'nee, and
there being no proof that tlie vit-
np.sse.s in suppoitof theeiiarge were
aetiiig from nialieious motivi.s or
ciiii'U|)t exjiietatimi, nor any evi-
ihMKe iinpeaeliing their vei'aeity,
the ehar^e was lurid provrd. Ihilloii,
'J83.
7. The re.spondent ai)peale(l to the
( 'onrt '.A A[ipeal on the ah.ive rharge
of personal hrihery. Ihhl. that as
the -I uilue tryuiii tlir petition had
foiUM tiiat the re.spondent had made
the oiler to the wile of tlie V(jter in
the manner ahove .stated, siieli an
oll'pr was a promise of a " valuable
eoiiMderation," within the meaning
of the bribery clauses of '.VI Vic, e.
•Jl. Ihhl.
IS. On the polling <lay, and during
the ii lurs of polling, the i-espondent
dro\e n\ to a tavern at C., uhere
he met one S., a member of the
abfive mentioned eommittie, and
addiessing him or the assembled
peoph;, said, "Hoys, this is the first
time 1 came to V. when I dare not
treat, and soiiu' oiu' will have to
treat me."' S. replieil th.it he woiiM
tre.it, ami, with the rcspo'ideiit and
'■iO or ."(() people, went into the
tavern, where S. treated some of
tlie people, and the respondent
drank with the rest. //</</, ( 1 ) That
going into the tavern for the pur-
poses of the treat, when the law
directed that such tavern should be
kept closi'd, .and joii.ing in and
aeeeiitiiig such treat, was a literal
as well as ,1 substantial violation of
the law, and a eorri.pt practice.
('.') That the eoncurrenee of the re-
spomleiit in the commission of such
corrupt practice made him liable to
the disi|iialitication iiiqw.sed by the
statute for " a corrupt jiiaetice <;oni-
mittcd with the actual knowlcilgo
and consent ot acandidare, " Snuth
ll'oi/irorl/i, :?4.S.
it. /'' /• /iiirfon itnil J''itf-'r.soii. JJ.
A. Tfie "ind subsec. of s. .'{ of '.Mi
\'i(.. c. '2, applies e(|ually to the
elected and ilefcated i/andidates at
an election ; and, if fotiiid assenting
parties to any practice declared by
the statute to be corrupt, each of
them is liable to the dis(|ualitications
mentioned in the statute, fltid.
10. The respondent, iluring poll-
ing hours on the polling day, met
one ]'., a snppurter of the opposiiiLr
candidate, and tolil hjin he would
like a drink ; and both of them, not
thinking it illegal, went to a tavern,
and the bar being closed, I', treated
the respondent in the hall of the
tavern. /A A/, bv tl:e (.'ourt of .\p-
psal (reversing </»7/w/)«', J.), thatthe
receiving of a tnat by the re-
spondent during the hours of polling
was a corrupt pr.ntice, and avoided
the electio.i. Xnrth Criij, liti'J.
11. The wife Of one .S., a voter,
had iicen injured some years before
the election l.y the horses of the
respondent, and in IST- the lesjiond-
eut gave S. compensation for the
injury partly by cancelling a debt
and j)aitly in cash, for which .S.
signed a receipt " in full of all ac-
counts and claims whatsoever." The
respondent canvassed S. dttring the
election, saying, " I would like to
have you with nn' at the eieetion,''
but S. declined, expressing dissatis-
faction witii the coin|pensation made
for the injury to his wife, to which
the r'spondent replied that he was
able to do, and could ilo, wli.it was
rigiit. .\fterwards the respomlenr
sent his salesman to the wife of 8.,
who told her that the res]iondent
was still alile to do justice, to which
she rcj lied .^he wduld write a letter,
which she did. and in which she re-
ferred toller huslLind's vote. .After
the election the respondent gave S.
SliO partly by cancelling a debt and
Jiartly in cash. Thi' rt'spondent
denied that he gave S. to under-
stand that lie w.'uld give him any-
thing to induce l.im to vote fo'' him
at the election. lUhl , by tne Court
of Appeal (atlirniiusj <lw\jnniy .1,),
that the eviileuoe showed that an
indirect otler of money or other
valuahle cuiisidcration was made by
the rc-spondeiit to .">., to induce him
to vote for the res[)ondent. lAn-
a, In, .Sl*l.
\'2.. At a late hour (Ui the ilay
prei'eding the election some aieiits
of the respomleiit determined to
resort to bribery, and they carried
I)IS(^rALIIMCA'l'l(>N (I: OF CAN'DlHATi:.
s:3.">
out siu'li (U'termiiiiitioi) at an oiirly
honr (111 till; inoinini^ of tlii' pollinu'
(lay. 'I'lu'fc wac imcviileiicf ut tlio
resiioiiilciit's kiiii\\lc(lj,'i; of, or con-
sent to, this ait of liis agt'iits. Ililil
(rc'ViTsing (iiri/fiiir, J.), that thu
shortness of tlie interval iirtwei'ii
the iv^'olvc and the execution of the
hriliei'v, wliieli was carried out at a
place several miles away from wiiere
tlie res|iondent lived, nnidered ini-
prolialile tlii: fact of the res)><)nd-
ent's actual knowledge of such
brihury. //'('/.
]',]. The respondent stated at a
puhlic ineutiiig of tin; electors with
reference to an allegeil local griev-
ance, that he understood it to he
the ediistitutioual practice, here and
in England, for th(' Ministry to dis-
[)ense as far as jnacticahle the
patronage of the eonstitm'Ucy on
the rcconnncndation of the person
who coutested the' constituency nn
the (ioveriMuent side ; and that he,
being a supporter of the (!overn-
inent, would li ive the patronage in
respect to appropriations and ap-
pointments whether electi.il or not.
//'/'/, th it the respondent by such
words did not oiler or ])romise
directly or indirectly any place or
employinent, or a promise to pro-
cure place or einjilnynu'nt, to oi' foi-
any voter, or any other person to
induce such voter to vote, or refrain
from voting. Muxkoka, 4.")S.
14. The evidence showed that ex-
tensive l.'ibcry was practised by
the agents of the respondent and
by a huge nuinbei' of ji.rsuns in his
intert-<t, but no acts of personal
brilieiy were proved against him,
and lie denied all knowledge of
such acts. It was in evidence that
he liad warned his friends, during
the canvass, not to spend money
illegally. The .ludge (ilnhUnn/' )
held tlKit no corrupt pt.icticc bad
been i oinniilted with the respoiul-
ent's kmiwl -dge or consent, and
avoided the election for corrupt
practices by tlie re>poiidcnt"s agents.
IaiikIcii, .~)'iO.
15. 0x1 appeal to the ''ourt of
Common I'leas, it was l,i/i/. {])
that till circumstantial evidence m
this ease was sutlicient to show that
corrupt practici'S liiui been commit-
ted by the respondent's agents with
knowledge and consent. ['2)
That w ilfiil intenti
th
;aine as ai
tiial
onal Ignorance ih
enow lei Ij^'e.
(lU
That the assent of a candidate to
the eoiru[)t acts of his agents may
be assumed from Ins noii-interter-
eiiee or non-objection when he ha*
the opiiortiinity. And such candi-
date "a knowledge of and assent to
the corruiit acts of his agents, may
be established without connecting
him with any particular act of
brill
](!. Tl
10 respom
lent.
stitueiuy where ii4'J persons voted.
d ;«(
J votes, an
I his
election
,0U().
'J'
ic
th
expenses weie about •
money was entrusted
spinideiit to one <■., with u caution
to see that it was used for lawful
pur[ioses only. Alioiit .•"^1,-01) of
tlli^
s nionev was ''iveii
by ti. t(
) one
W
•ho distributed it to several
f $Ul ,SloO, .-•.'()()
persons in sums o
and .if'J.'iO. No instructions as to
expenditure were given by (i. to
\V., or by W. to the persons
amongst whom he distributed the
money ; and l)y the latter several
acts of bribery were committed.
The respondent publicly and pri-
vately disclaimed any inteiitiim of
sanctioning any illegal expt ndituvc ;
but made no iiujiuries after ttie
election as to I
low
tl
le money
had
been spent until a week or two be
fore the election trial
He denied
my
act of bribery, direct or indi-
rect, or any
k
now
led.
thereof
and no proof wasuiveuofapersoii.il
knowledge on his part ui any of the
sjiecihc wrongful acts or [laymei.t.s
tied
tlv
ed to liave been coniliii
persons amongst wiioiii
nionev
had
his
■-tribiited. //rA/,
that under the peeiil
stance:
of tl
le respom
lent'
lar circuni-
s canvass,
and on a review of the whole evi
di
tl
le respom
iilent'i
em
pliati
denial of any corrupt nioti\ e or iii-
timtion sliouli
1 b
;/"'■''.
.■)f)8.
wi
17. Tl
th us
le ri'spoudeut was charge
teil. A' I
d
ing means of corruption at
his election fli I
'.V g
iviiig
up
promissory note and also^'-'O to one
M.
Ill condition o
f M.
iiid his sons
voting fo'- liim ; the charge depended
upon the contradictory oaths of M.
and the respondent ; I'ii l)y giving
ii
.S.)()
t»I(!i:sT OF CASKS.
iv large siiliscriptioii to an flertinn
Innd, HOini; of which was cxpoiKlcil
tor illet;al jnirp<'S('s ; ami (:'.) hy anh-
scriptions tf) ciiuri'hos. The ro-
HiiDiulciit (Iciiicil any cipnu|)t motive
in tlicsi' HuhMcriiition;'. 'I'lie I'lluc-
tion .Indj^o. on the evidonce, foiuid
that the respondent was not pcrHon-
ally ^'nilty of eonujit practices, hut
ho avoiih'd the election on the
j^roiind of lirihery by a;,'cnts. Snnl//
Jfiiroii, 57'!.
IS. l''i'oni the jiidL'nie:it on tlie
jiersonal cliai-^es the pelitioncr ap-
jiealed : Imt tlic ('onrt, on a review
of the evidence, decliiu'd to set
aside the finding of the I'Mcction
•ludi,'e. The ;ip]PPal was disini.ssed
without costs, as there were strong'
t^rounds for jirescntini,' it /lii'/.
1!>. /'( r Ihiiitil II, ( '. .1. ( 'andi-
dates an I atrents .should select less
suspicious seasons than election
times for <'Xerei-.int,' their liherality
towards charitalile ;iim1 religions
objects. ////'/.
'_'(). The rcspdudciit was char^'ed
with corrupt jiraeiii'es. in tiiai.
when eanvassin;,' one ('. . a voter
who said li<! woidd not vote unless
he wa.s ))aid. he s;ud ho was not in
a position to pay him anvthini;', hut
that if ('. would support him, one
<if his (the respondent's) fiiends
would eonio and .see .iliout it. The
respondent, as he was le.iviiii,' the
voter's house, met one K., a sup-
porter, w 111), after some conversa-
tion, went int > ('.'.s house and pive
him ^-T) to vot'j for the respondent.
The eliaiije d.epended upon the evi-
dence of the voter (". .and his wife.
The respondent denied making
such a ju'omise ; and he was sustain-
ed hy K. as to a convci-sation out-
side ('."s house, in which the re-
spondent cauticined K. not to givo
or promise C any mouev. The
I'lli'ttion .luil^e on the evidence
found that the respdudent wa.s not
personally im])licated m the bribery
I'f the voter C. by K. Cmtri-
l\'<'l/h>i//oii, 'i7'.y
-1. Before an K!ecti<in .ludi,'e iind.>^
a respondent or any o'lier pers(Mi
guilty of a i!(irrupt practice invoK-
ing a personal disability, he ought
to be fret- from reas(uiable doubt.
//Ad.
•J-. It is a genet al rule that no
man can bo treated as a criminal,
or mulcted in penal acti'Mis lor
otrenees which he did not connive
at ; anil it is settleil law that enaet-
nients are not to be given a penal
elleci beyond the necessary import
of the terms used. I?ut the I.Ipo-
tion Laws arc not to be so limiteilly
<;onstrued by an Mleel imi .liidge;
and for civil purposes they are tiKU'e
comprehensive, and reach a candi-
date whose a'.'ents bribe in his be-
half, with or without his authority.
Where the disi|ualiticatiou of a can-
didate is Houiiht thes(' laws are to be
construed as any other pcii.il stit-
iites, .'ind the candidate mu.st he
proved guilty by the sanu^ kind of
• evidence as ai)|ilies to piiial proiei.'d-
ing-'. K'litijxiDii. •i'2">.
■J.'{. Money had been (■ontriliuted
by the re.-pondeiit and by his friends
fiU' the [lurposes of the election,
which had been jdaced in the hands
f)f one < '., ;i persiinal and ])olitical
friend of respundent. who gave it
without any instruct iinis or warn-
ings to such committee-inen as ap-
plied fnr it. A great deal ot this
moiiny was spent in c(U'rupt ])ur-
])Oses, in bribery, and in treating, to
till' extent of avo'ding the election.
Tiie respondent m his evidence
stated that he did not, directly or
indirectly, ,-iuthori/e or approve ot
or sanction the cNp'tnliture of any
money IT bribery, or a promisr- of
any for s'cli |iur|)ose. nor did he
sanction or author /e the keeping of
any open house, and that he was
not aware that any op<;n houses ha.d
been ke[it, and t lat hi- always im-
pressed on everybody that they
must not violate the law. There
was no allirniaiive evidence to show
that t;he money which the respond-
ent kccw lia<l been raised i'oi' the
purposes of the elc'jtioil was so lai'ge
that as ;i reaonable man he nnist
hav(> known that some portion of it
would be used f(U' corrupt purposes.
Jldd, that looking at the whole
'jase, and at this branch of it, as a
penal inoeeeding, the respondent
should not be held personally re-
sponsible for the coriupt practices
of his agents. ///('/.
•1\. \\\ election was held in
-lanuarv, IS74, under the Act of
I)IS(,»C.M.II'|('.\TI(»N
(I I' ACKNT
S.S7
IST.'t, at which the pi'titimit r and
thr rcspiiMili'iit wiTo (Miidiilati's. mill
atwliii'h the i'c^ii»)ii(lciit w,is oltH'tt-'il.
Tliis olectioii was avuiiU'i'l on tlie
irrouiid of cdiTupt jiracticcs hy
am'hts of till! rcspotidi'nt, timiinitted
without his kiiowludgc or consent
{iiii/r ]). ."il^T). A new (Icution was
hold, under the Act of lS7t, at
which tho petitioner and ihc re-
spoiiih nt Were a;.'ain candidates,
wiieii the respondent was a"aii\
eheted. Tlieroiipon another peti
tioii was pre cnt'Tl. cliari.'iii,i,' tiiat
tiiu respontlcnt ^vas <,'iiiityof corrupt
practices at tiiis last idecticui ; tliat
he was ineliu'ihl ■ hy reason of the
corrupt acts of ids au'eiits at the
foiiHir (dec:tioii : tiiat persons re-
jiortcd u'uilty of corrupt practices
!it the former elt^Jtion trial had iiii-
])!• 'iierly voted at the last (deetion ;
and idailiiiii^' the seat for the peti-
ti'iiier. //'/'/, on |)reliininaiy olijec-
tioiis, tliat the tw(j elections were
one in hiw ; and it was not material
that they had lieen held under dif-
ferent Acts of i'arliatnent Co.n-
vail (-1), Ml.
•J'». 'i'hat tiie rosofiiidont was not
ineliail)le for re-election, as the cor-
rupt practices of his aLjents at the
former election liml hi'cii committed
withiMit li!s l<nowledi,'c or coiis(,'iit.
Il:;,l.
•Jli. riic respondent gave certain
gifts and charities to a religious
community, a eluirch, and certain
lociii associations, noiie of which
were political ; the election was
never melitiiucil. Ih l<l, that wluri'
eiuii'itahle duiiations are given gen-
erally, and not witli a view to iii-
lluenco any individual voter, tliey
will not vitiate an election. There
must be such large and indiscri-
minate gifts as to leavi^ no doiiht on
any one's mind tliat the ellcct had
tieen to constitute general hrii)ery;
and there was no evidence of such
gifts or cxiieiiditnrc in this '-cii^ii.
Sinilli I hihir'ni, 7">i .
(■..*) Of Agent. The election
iiaving hei'ii declared void mi ac-
count cif the corrupt practic es of an
agent of the respondent, the .ludges
acting as a Court for the trial of
illegal acts committed at the elec-
tion, after notice to such agent,
granted an order for the punishnieiit
of such agent liy tine and di.tipialt-
tication. Mormiiiit (-J), y.il.
Sti also p. -'AS.
(;M or Petitioner. I. An
objection to tiie .<fiihi.< of a peti-
tioinr cannot he taken by preli-
minary objection. I >u (if nil, \f'l\y
•J. A petitioner in an election
petition who has lieeii guilty of cor-
rupt practices at thi^ election coni-
))lailied of, docs not tlierel)y lose liiH
siitlii< as a )ietitioner. /''((/.
:i. Kxcept whei'e there are recri-
minatory charges against the un-
successful candidate, or for the
purpose of declaring the petitioner's
vote \(iidoii ascrutiiiy, the condiuit
of a petitioner at an election can-
not. Ih! iniiuired into. .\iid in tiiis
case there is no distinction lietwien
a candiilate-lietitioiier ami a vnter-
petitioner. ///('/.
4 X. wW'. That if the petitioner
in this cas(! was proved at tlie tria'
of tin; election petition to have
lieeii guilty of c(.irriipt practices at
the eiectifJli coinplainiMl of, the ]ieti-
tion could not be dismissed. /''('/.
.'). A iluly qualified voter ts not
dis(|ualiticil from lieinga petitioner,
on" the ^'i-fiunil that he has been
guilty of bribery, treating or undue
inllueiice. diiriiigthe election. \orf/i
titimoi , (117.
(!. Disiiualilications from corrupt
practices on the part of a voter or
candidate .arise after he has i)ceii
foil ml '.'uilty. and there is no rela-
tion baek. ' Ih'i'l.
7. In order to di^fiualify tiie peti-
tioner from acting as sin li, the ri^-
spondent oHeted to prove (I) that
the petitioner !\ad been reported
by tilt ■Indue trying a former elec-
tion petition as guilty of conupt
practices ; CJ) that the jictioner
had in fact been guilty ot ciu'rupt
practices at such tdection ; and ['■'>)
that the petitioner had Ixien guilty
of corrupt practices at the election
in ijaeHtion. //(/</, that such evi-
dence, if ollered, would not disqualify
the petitioner as such. //'/'/, further,
that as the pc'titioner did not claim
the seat, esidt'iice could not begone
into for the purpost,' of personally
dis(|ualifyiiig him. 6''ov'"'"//i.'<),80H.
P!
h:]h
DUJKsr Ol' CASKS.
DIVISION COURT BAILI?FS. - ( »1).
Hcrviitions on tlw iiiiprojiricty of
Divi.-idii ('(iiirt Imilidfi rMiivasaiii}^
votiTs (luring an clectioii. Xnrtli
rirftin'fi. (11 -J.
ELECTION ACCOUNTS. Where
.•ill I 111' ariMiuits ;iMil rt'conl.s of an
ilictiiin all' iiitrutioiially lU'.stroyuiI
liy tin' rc.'siiuniicnt "m agent, ewn if
tli(^ case he utrippeil of all other
<,'ireiirnf<lance.'<, the strongest con-
eliision.s \\ill ho drawn again.st the
respomieiit, anil every iiresuinjition
will he made ai-ainst the legality of
the aet.s concealed hy sueh eondnct.
Sdiitli ii'ii If, ;")'_'.
ELECTION AGENT. The Act liii
\"ie., c. 'J. ss. ~-\'l, rei|uires that all
election expenses of lanilidate.s
shall he paid through an election
agent ; and thi? Act ;{s Vic., e. :>, s.
t!, reijuires the nieniher-elect to
swear that he had not paid and will
not pay election expenses except
through an agent, and that he " has
I'.ot heen guilty of any other I'orriipt
practice in respect of the said elec-
tion."' Certain payments were
made hy the rea|ioiideiit personally,
ami not through an election ag(nit.
1 1' Id, that such payments were not
corrupt practicis ; //< hi also, that
the words "other corrupt practices'"
in the memher's oath meant "any
corrupt practice."" 11' >V Unstiniis,
'ill.
ELECTION COMMITTEE DECISIONS.
■ -The ellect of s. MO ..f :\\ \ic., c.
13, ()., is that the .ludge i.s to act on
the principles upon which election
committees in Kiigland have acted
whei't! he has no liglit from the rules
which hi.s own professional experi-
ence supplies him with. And he is
in ad'iition to he hound hy the
decisions of the Kota Jiidge.s in
England trymg elcctioiLS under acts
similar to our own. in the -ame way
as the ( 'ourts feel hound hy their
judicial decisions in o'.her legal
matters. li'isl Ti'mn/n, i'T
ELECTION EXPENSES.— The dif-
ference between the Imperial stat-
ute (17 and 18 Vic, c. KfJ. s. -J,
suhs ;i, proviso) and the Ontario
statute (;VJ Vic, c. "21, s. il7, suhs.
H, jiroviso), as to "legal expenses"
in elections, pointed out. hti/
'/'iiriiiilii, '{).
Sir also pp. 7ii, •2)1, 7S."), 800.
ELECTION LAW, -1. The .oininon
law of I'lngland rehiting to I'ai'lia-
inentary elections is in force in
< hitario, and appli(!s to elei.'tions for
the House of ('ominous. (Juriiirnll,
r.i7.
•J. The |)iiminion l')lections .\i.t
of 1S74 dors not allect the rights of
Ii.irties in ponding proceeilings,
which must he decided at'cordiiig
to the 1 iw as it existed hefoie the
passing of that .\ct ; sec. "JO of that
Act referring to candidate's at some
future (deetion. Xorf/i ric/nrin,
r.si.
'.i. The I'llection Law is not to he
eonstnied as a penal law. A'///'/.>7(ni,
<;-2:>.
I. The Imperial and Donunion
I'llection L'iws, as to corrupt prac-
tices imd their consei|Uence3, com-
p:ired and considered. /'//'/.
,S'. - also pp. -Jll, Sim.
EMPLOYMENT OF VOTERS. 1
The friends of the candidate form
ed themsehes into committees, and
some of tiem voluntarily distri-
Ijuted cards and canvassed ditler-
ent localities, with hooks contain-
ing lists of voters, noting certain
particulars as to promises, (^tc.
Tiiese canvassers often met voters
in puhlic houses, and while there,
according to custom, treati'd tliose
whom they found there, and thus
spent their money as well as their
time. On this heiiig reinesented to
those wiio had charge of the money
for election expenses, the latter, in
several cases, reimhursed the can-
vassers. //' /'/, that these general
payments, if not exceeding what
would he ])aid to a person for work-
ing tile same time in other employ-
ments, would not he such evidence
of hrihcry as to set aside an elec-
tion. i-Vi-s/l Toronto, 70.
'2. The hciint Jhh' employment and
])ayinent of a voter to c uivass voters
l)elonging to a particular religious
denomination, or to the same trade
or busini'ss, or to the same rank in
life, or to canvass voters who only
understand the French or Celtic
KVIDKNCK.
,s:}!)
laiiKiiagi's, is not illcgiil. Wis/ To-
niitio, 'M.
3, 'I'lu! fact that siicli a votiT has
hkill or kiKAvlcd;,'!' .iml rapiicilv to
I aiivass \M)iilil iKit iiiakt' his ciiiplDV-
iiit'iit ill(j;al. /Iiii/.
4. Tlic cMiididatt' is not rcstiioti'd
to IiIh |iiiieiy p^-rsoiia! cxpiMiwt.'s, hut
may (if tluro is no intent thereby
to inlhicnee voters, of to induce
others to procure his return) idre
rooms ffir committees and meetings,
and employ mi'U to act as ciin\ asscrs,
to di.striliutc cais and phicards. and
to pert'orm sinular services in (H)n-
neetion with the ehetion. //<»/.
T). The respondent and ont^ M.
eniphiyed oni; )!., a hiwyer and pro-
fessional public speaker and a votei',
to ailiiress meetings in the respoml-
ent's interest, and promisetl to pay
H. s travelling expenses, if it were
legal to do so. //«/-/ (by thi^
Supremo Court, reversing y//-///()//r,
.1.), that such a i>ronMso was not
bribery (4 Su|). Ct. I!. 4:{ii). yorfh
Ontario, 785.
(i. Pt r Ariiiitiir, J. - The hiring of
orators or canv/issers at an election
is illegal. ////'/.
.SV' also )ip. !»7, 'J74, 4r)S, 7;{().
EVIDENCE. I. A notarial copy
of an assignment in insolvency may
bo received in evidence under C. S.
C. c. 80, H, •_'. I'rr.'^viilt, 1.
2. The writ of "lection and return
iiee<l not lie |)roduced or proved be-
fore any eviilence ot the election is
giseii. Sfiifiiioii/, 'Jl.
3. A witness called on a charge
in the particulars of giving s[)iritu-
oiis li((U()rM in a certain tavern on
polling day, during pcdling hours,
i-annot be asked if lie got lii|H(ir,
during polling Ixmrs, in other
taverns. Smil/i < Krinn/. 'lA'A.
4. l']vidence of admissions mad(^
by an agent after his agency had
expired is inadmissible. U'cxt PtU'r-
I'oro. 274.
5. A witness stated that he had
received a letter from n voter, ask-
ing for the fulfilment of an otler as
to his vote, but the letter was not
produced. Kill/, that it was not
proved that the letter in ijuestion
was written by the voter referred
to. North Midillt.s(.r, 370.
ti. '!"he res|i()iident « as charged
with several acts of corrupt prac-
tices. I'laeh separate chaige was sup-
|)orted by the evidence of one wit-
ness, and was denied or explained
by the respondent. Tlu' learni'd
.Indge trying the petition held, that
if each case st 1 by itself, I'ath
a_'aiiist oath, and each witness
e<|ually creilible, and there being no
rullateral eireuni.-'tances either way,
he would havt' found that each case
was not proved ; but as each charge
was proved by a creilible \\ itmss,
the united weight of their testimony
overcame the etlect of the respond-
ent's denial : and on the comiiineil
testimony of all the witnesses, he
held the separate charges proved
atrainst the res|)ondeiit. //'/'/, by
the ( 'oiirt of A))peal (reversing
U'i'snii, A.), that in tleetion cases,
each charge constitutes in etlect a
separate indicttnciit, and if adudge
on tin,' evidence in one case dis-
misses the chargt!, the respondent
cannot be placed in a worse |iosition
because a nundier of ehaig<'s are ad-
vanced, in eaidi of winch tin' .Indge
arrives at a similar conclusion, and
therefore the separ.ite charges ab(]VO
referred U> were held not sustaiiu<l.
Miixhokit, 4.">iS.
7. A candidate, wluMi examiiuid
as a witness at an election trial, may
be asked his ixpeuditure at former
Provincial and l)ominion elections
at which he was a candidate. Sodti
S'uncoi , ti'J4.
!S. A number of .sejiarate charges
of coi'rui)t practices against an agent
of the lespomlent, based upon otitis
or i)romises, and not u))on any act
of such agent, each of which de-
])ended ujion the oath of a witnes.^
to the oll'el' or ])ronuse, but each
one of which such agent directly
contradicted, or gave a ditlerent
color to the langnaLic, or a ditlerent
turn to the eX))ressions used, which
(|uite altered the meaning f)f the
conversations detailed, or consti-
tuted in etlect a complete or sub-
stantial denial of the charges at-
tem])ted to be proved agiJlist such
agent. Ilihl, (1) That although in
acting on such contlicting testimony,
where there was a separate oppos-
ing witness in each case to the testi-
mony of the witness supporting the
!|l
IMAGE EVALUATION
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WEBSTER, NY MS80
(716) 872-4503
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840
DKiEST OK CASKS.
charge, the Klectioii .liidge inif^lit
]ni ohligort to hold each charge us
ttiiswercd and repelled l>y tlie eoun-
tei' evidence, he coiilil not give; the
like eU'eut to the testiinoiiy of the
8!inie witness in each of the cast's
where the only op)>osine witness is
confronted hy tlie adverse testimony
of a nunihcr of witnesses, wlio,
thoiii;!) tiiey do not corrohorate one
anotiier i»y s])eakiiii; to the same
matter, are contrailicted in each
case hy the o.(tj witness. ("J) Tliat
tlie more fre(|Uently a witness is
(contradicted hy others, altiiougli
each opi)iising witness i;ontradict-;
liiin on a single point, the more is
coiilidenc<( in siseh Witney's atlected,
until, hy a 111. ic '>f coiitiadictiiig
witiies-es. he ii -y he dishelieved
altogetlier (.'5) That acting on tlie
ah "ve, iiid (,u -i 1 oiisidi'i'ation
wlittiier tliu stor, a^ ^ hy the vit-
III--- ill f;!")/!'. it ■ • cliai'L'e is
reasona! 'a Mr jirc . in ;tfelf, the
fli,ir!.,'e4 (if corniji'. p>-;.'tices against
tile agent of the lespundcnt, set out
ill tile judgment, were jiroved.
Xurr/i h'riil'iiii; 710.
EXCESSIVE EXPENDITURE. - S, >■
pp. .")•_', 70, ."i47, ooil, .KiS. .■)7<i.
FREE DINNER. S,-i p 07 1.
HIRING RAILWAY TRAIN. S,
pp. ."ill, .■>,-,.'..
HIRING TEAMS. S,f Cokki it
I'kvctk'Ks (.")).
ILLEGAL itND PROHIBITED ACTS.
- 1. '•Illegal and prohiliite 1 acts
relating to elections," in the detiiii-
tioii of corrupt ])iactices in tlio Con-
troverted Klections .\ct, 1S7], are
confined to hrili.ry, hiriiiii of tcinis,
and undue iiilliieiiee, as dctined hy
sees. 07 to 71 of the IClectioii .\ct of
1,s(kS. Xorth York-, O'J.
■J. \'ii>latioiis of section (il (treat-
ing at meetings) iuid section 00
(giving or selling liipior at taverns
on polling day) aie not corrupt
pr.'ictices within the nieaniiig of tlie
said Acts, unless committeil in or-
der to iiiilueiice voters at the elec-
tion coiiiplaiiieii of. Ih'nl.
',\. The words "illegal and pro-
hihited acts in reference to elec-
tions,' used in sec. .'1, iiieaa such
acta done in connection with, or to
afVect. or ill reference to cdections :
not all acts which iiro illegal and
prohihited under the election law .
HrorknW, VM.
S'l- now R.S.O., c. 11, s. 2, suhs. (i.
INTENT.— .SV' pp. 8, .V.'. 70, 1>7,
i.s'.t, •214, '2m, •2H:i, m-2, ;J70, :m,
.")47, 01 -2, 0-2."), 000, 071.
IRREGULARITIES. - The neglect
or irregularities of a deputy return-
ing ollicer in his duties under tiie
|)oiiiiiiioii Kh'otions A(;t, 1S74, will
not invalidate tin election, unless
they have atfectcd the result of the
election or caused some sub.stantial
injustice. Monrlc. ~2i\.
S'> also pp. .'ill', 704,
LEGAL AND PERSONAL EXPENSES.
— N' ]ip. 70, !»7, 7^.">, ^00.
MEMBER'S OATH. *'p. 211.
MEETINGS AT TAVERNS. -Meet-
ings for )iromoting tlie tespoii<leiit's
el''Ctioii were held at piihlie houses
with the object of inilueiiis,' the
owners to support tlie respondent
at the election, and h(!cau-e the
weather w.is cold and meetings
could not he li"ld in the op.ii air.
No evidence was given hy the peti-
tioner that eijiially convenieiii
jdaces, and such as were more iiro-
per to he used for that pur|iose,
could he ()l>tailled. J/i U, that as
the respondent ;itnl his friends liail
a Icgitimatfi motive lor holding
tiieir meetings at such lioiisi s, al-
though their other motives might
not he legilim.ile. no corrupt act
had heeii cominitted. Kiii<i.ilon,
(iiVi.
MEETINGS FOR PROMOTING ELEC-
TION. - A" pp. 1S7, -•ii."s '2M,'245,
•_'.")■_», -jcs:!, ;t(»i, :ni2, .S7o.
NEW TRIAL I. Charges of eor-
ruptpractice>, consisting ot promises
of inonev and of emplDyiiieiit, were
made against tlie respondent ami one
M., his agent. Moth tlie r<'ipoiid-
eiit and his at;ent deni, d making
any promises of money, hut left the
promises of eiiii>loymeiit unanswer-
ed ; anil the .ludge trying the ))eti-
tiou (Driipir, t'. .1. A.) .so found,
NoMIXATIdN I'AI'KH.
.S41
and avoidcil the <loLtioii. Thcre-
ujjon the respondent appeah'd to
the Court of Ajjim.iI, and under '.iS
Vu'.., c. li, «. 1, otlored further
evidence ])y affidavit, specifically
denying any offer or ))r(>inise, tli-
rectly or indirectly, of employment.
JJi-iip't; ('. .1. A., who tried the
petition having intimated to the
( onrt that hat! the re8|iondent and
his agent made tiie explicit denial
as to oilers of money or employnu'nt
which it aiipeart'd they hail intended
making, he would have found for
the respondent. //'/«/. under these
cireumstanees, that the tinding of
the Kleetion Court .■siiould he set
aside, -.'id that a new trial should
he held hefore another .Unlge on
the rnla. /'<</, -l^r,.
'J. Oliservations on the dillerence
hetween an election trial and a
trial at Nisi I'rins. />ii'l.
NOMINATION PAPER. The nomi-
nal ion paper of U., one of tlie tandi-
dates at the election comjilaiiied of,
was signed hy twenty-live person.s,
and had the allidavit of the attest-
ing witness duly swum to as re-
(piired hy the statute. The elec-
tion clerk found that one of the
tweiity-ti\e per-sons was not en-
tered on the voters" liscs, and there-
upon the rijfurning ollicer and elec-
tion clerk comparecl the names oil
the nomination paper with the
ccrtifietl vuli'is' lists in his posses-
sion, and on limling that only
twenty-four of the pei'sons wiio liad
so signed wei'e duly (jualified elec-
tors, lie rejected l!"s. ncimiiiation
paper, and retiirneil the res^mndent
as memhe." elect. //</'/, (1| That
as the policy of the law is to have
no scrutiny, or as little as possihle.
in election cases, and to give the
people a full voice in choosing their
represi^ntatives, the defect in the
nomination jiaper was one to >viiieh
the returning otiicer sho ild not
have yielded. (2) That it he elec-
tion had gnnc on the defect in the
nomination paper would not, ac-
cording to tlie 'JOth sertitin of .S7
Vic., c. !t, have affected the result
of the election, Son'Ji /'> nf'n ir {•2),
705.
NOTICE ADMITTING BRIBERY.-
Sff pp. "ifi-J, tl'Jl.
ORATORS AND CANVASSERS.—
Sk' p. 7f^"'.
PARTICULARS. 1. Where aques-
tion is raised as to the .sullicieiicy of
the notice of ohjeetion to voters, liie
.Indge may amend the particulars,
giving time to the party allected hy
the amendment to make in<|niries.
^/(iniiDiil, "21.
•J. At the trial of the petition, an
anicndiiieiit of the )iarticiilars as to
eoiriint practices will he allowed ;
and if the respondent is piejiidieiMl
hy the sur])rise, terms may hi- im-
posed. IVi /III nil, 17.
•■). .\ii objection that the jiersoiis
objected to were not owm is, tenants,
or occupants within s. ;'■, e\cliidc(l
an objection as to the value of the
assessed pnjperty. Smil/i I In mill'',
l'i:i.
I. Where a son was assessed ;it
.S7fl() lor a farm in w hich he and his
father were )iaitiiers, in the pro-
poition of three-fourths of the pro-
lits to the father and one-fouitli to
the son, and the objection to the
vr)ti r was non-owiiershii). llihl.
that the partnership was established
by the evideiict;, and in view of tlu'
olijection t.ikeii, the vote was sus-
tained.- — Siililli.s' iii/r. /hill.
."i. When the petition claimed the
sent f(ir the iins'',ceessful candnlate
on the gidumis ti at ( I ) illegal votes
and Ci) iiu|)ropeily marked ballots
were received in favor of the siu;-
eessful candidate ; that (:i) good
votes and (I) properly marked bal-
lots for the iinsucoessful candidate
were improperly refused : and that
(."p) the successful candidate and his
agents were guilty of coirui)t prac-
tices, anil particulars of all such
votes and bnllots and corru)it piae-
tices weri^ asked from the petitioner.
//»/'/, I I ) .\s tothe illegal votes, that
the 7th (jeneral IJide prescribed the
particulars of objected votes to be
given, and the time of liling and
delivering the same, and a special
order was not therefore necessary.
{'2) As to the improperly marked
ballots and impropi'rly rejected
ballots, the petitioner not having
information ii'spectiiig them, could
not be ordered to deliver particulars
of the same, {'i) Particulars were
ordered of the names, address.
842
DIfiEST OF CASES.
abndu an<l adilition of p(:rson8 hav-
ing j{i)o<l votes, whose votoH witu
iiniiroperly rejeL'toil at the polls ;
ami |)artii;iilars of the conunt pniu-
tices charged l)y the potitioiicr
agaiii.st the respondent and hJH
agents. Meal /•. Sniitli, I,. It. 4 '". I'.
14". { ir,.ifiniiistrr nisi), followed.
m.^f Ehjin, 'll:\.
ti. When; piirtitnliirs were d*-
livered after tlic tinui limited liy the
order for particul.irH, and not re-
tnrned, an application made at the
trial to set th''in aside was iMjfnscd :
Hiuh application shonhl have lieen
made in <'h imhers licfore tlie trial.
Sarlh I'lrtiiri", '2')'1.
7. I'articnlars of recriminatory
eliarges delivered att'-r the time
limited hy tlie order for sneh par-
feicnlars were allowed, Imt tlirf peti-
tioner was allowed to apply for time
to answer the charges therein cun-
tained, and was given such costs as
hail heen occasioned hy the granting
of the application. //'/</.
8. On the trial of an election peti-
tion, evidence was given hy l)otli
sides on a eiiarge not properly set
out in the p(!titioners' particulars of
corrupt practices. .\t the elnse of
the evidence tlie respondentobjected
that the charL'c was not in the par-
ticulars, and that it was not veritied
by the allidavit of the petitioners :
//'/'/, (1) Tliat the petitioners might
amend their particulars, and that
the charges in the petition were wide
enough to cover the charge. ("J) That
as to this charge, the parties had in
fact gone into evidence without par-
ticulars, and that the petitioners'
aflidavit verifying the particulars
was not necessary. Lincoln (2), 489.
t>. On an application by the peti-
tioner to amend the particulars by
adding chargiis of bribery against
the respondent personally, and his
agents, his attorney made allidavit
that diU'erent persons had been
ein|ili>yed to collect inforinati n ;
thai the new particulars only came
to his knowledge three days before
the.'ipplication; and that he believed
they were material to the issues
joined, ,/f'li/, tiiat as it was not
bIiiiwii that the petitioner or the
persona employea could not have
given the attorney the information
long prior to the application, and as
it was not sworn that the charges
Were believed to be true, nor were
they otherwise confirmed, and as
the Amendment might have been
moved for earlier, the ap])li(ration
shoiiltl be refused. Smil/i \ori'i)H:,
(itiO.
PARTIES. — The petition, besides
charifing the respondent wit ii vari-
ous corrupt acts, chargid one of his
agents with similar acts, and claim-
ed thiit the agent was subji'ct tn the
same disi|ualilications and penalties
as a candidate. The i)ray»;r of tlio
petition asked that this agent might
be made a party to ^I'v petition,
anil that he might be <ii.)jeoted to
such dis<|iialitications and penalties.
//(/'/, (1 ) That there is no authority
in the Klection Ai'ts or elsewhere,
for making an a.'ent of a candidate
a respondent in a petition on a
cliaruo of |H.>rsoiial misconduc^t on
his part. (-) There is no authority
given to the Ivei'tion ( 'ourt or the
Judge on the roln to subject a per-
son " otl'.er than a candidate" to
such disi|ualilicatioiis. (o) The
ludge's report to the Speaker as to
those pers(nis "other tliaii the can-
didate," who have been proved
guilty of corrupt pr.actices, is not
conclusive, so .-is to bring them
within ."U Vic, cap. 'i. sec. 4!(, and
so render them liable to penal con-
8e((ue;ice.s. South 0.r/onl, 238.
PAYMENT OF DEBT. ~Sr,' pp. 97,
20.1, '2r>'2, .•W4, (il2, 7")1, 78").
PERSONAL OBJECT OF AGENT.—
Sir pp. l:JSt, 262, 2(i!>.
PERSONATION.— .SVf' p. 274.
PETITION.— (1) Bona Fides.— A
charge that the petition was not
signed by petitioner lionn jhl<', but
that his name was n>,ed malajiile by
other persons, is a matter of fact
to be tried, and cannot be raised by
preliminary objection. North Sim-
CO'', 017.
(2) Amendment. —The .Fudge
trying an election ])etition has power
to amend the petition by allowing
the insertion of any objectionto the
voters' lists used at the election.
Monck, UA.
PETITION (3) WITHDRAWAL
H43
(:\) Withdrawal.— The Court
recoil int'iuled the petitioner to with-
draw hia petition in this caHe ; and
on an application for tliat |iurp<ise,
an()*ilier elector having applied to he
substituted as petitinner : //<7'/,
that as the < 'ourt of Appeal had
heon placed in posaessiou of all tlie
charj^es against the rispoiident. and
of the evidence in support of tliuiii,
and had recomiiiemluil the with-
drawal of tii6 petition, and no sulli-
cient additional i;rouiids liavinu hct^n
shown f()r such suhstitution of peti-
tioner, the order for the withdrawal
of the petition should he granted.
P,-r/, 4S.-).
( 1) Trial of. -1 . When a h'uh;
of Court has heen issued under the
Controverted Elections Act, ap-
pointinj^ a place for the trial not
within the constituency the elec'ion
for which is in (|uestioii, the .liidge
by whom the petition is h'^iiig tried
lias no power to ailjourn, for the
further hearing of the cause;, from
the place named in the Uule of
Court to a place within such constit-
uency. South Ort'ii, 'yl.
2. The day appointed for the trial
of an elccti n petition may be al-
tered to an earlier day by consent
of the parties, and by an order of
the .ludye. U'lM tb/tn, '12'.\.
PLEADING. — The (ith General
Hule in Klectiou Cases does not pre-
clude the statement of evidence in
the petition: it renders it unneces-
sary, an<'. is intended to discourajje
such pleading. South Ox/on f, '23S.
POSTMASTER.— SVc p. l.")8.
PRELianNARY OBJECTIONS. -Aa
the Ontario Act (K. .S. (»., c Hi
makes no provision similar to that
in the Dominion Controverted Elec-
tions Act, 1874 (:57 Vic, c. 10,
Can.), limiting the time within
which preliminary obji-i'tions to an
election petition should he Taken,
the special circumst.'inces of each
case must detcrTiiiue whether the
preliminary objections have been
taken with suHicient promptitude.
Dnfiirin, 529.
Si'i' also pp. 1, .')2!), 531, .')5ii, Ull,
584, t)I7, ti44, GI7, 74i», 803.
PRESENT (II To Voter's Wife.—
Svi' p,). <i7, 28;{, TM\.
(2) To Voter's Relative. -.SV*-
pp. s, 2.-)2.
PROPERTY QUALIFICATION. 1. A
candidate may be a petitioner al-
though his property (pialihcatioii be
defective, if it was iic)t demaiidetl of
hiiii at tlic time of his election. If
he claims the seat, his want of
i|ualitication may be urged .against
his being seated, but he may still
show tli.at tlii^ respondtMit was not
duly elected, if he so charge in his
jietitioii. \oiih I'irtoria, ."84,
J. //'■/</, (1) As in the Xorth Vir.
torin ciisc (ontr p. o84), tli;it the
Dominion Kiections .Act of 1S74
not being retrospL-ctive, tlm (pies-
tioii of property cpialitication of can-
didates, at elections for iiit'inbers of
the House of Commons lield Oetore
the passing of the Hoininioii Elec-
tion Act of I87.'i, can still he raised
in pending cases. (2) That it is not
necessary for an cleitor. demanding
the property iiu.ilitiiatiou of a can-
ili<late, to tiiider the necessary
declaration for the candidate to
make ; the intention of the statute
being that the candidate must pre-
pare his own declaration. C'dnl-
mil, (i44.
Sfc now Doni. Elcc. Act, 1874,
s. 20.
RECEIVER OF TREAT, .SV-r pp.
17!», 24.-., 420.
RECOUNT OF BALLOTS. SV^ pp.
.".lit. 7ti4.
RECRIMINATORY CASE. I. The
respondent, on the opening of the
case, charged that the petitioner
was a cantlidate at the election, and
as such candidate was gui ty of cor-
rupt jiractices, and therefore dis-
(pialitied to be a petitioner. The
Chief .lusticc, without deidiiig
whether the respond'-nt had the
riglit to attack the i|ualiticatir)ii of
the petitioner, allowed the evidence
to lie given, but hi'/il the same to
be insullicieiit. Prinri Etliranl, 4."..
2. Whi-re a charge of corrupt
practices by way of a recriminatory
cas(' is allegeil l.y a rc'spondent
against a juititiouer, it may be re-
served until tlie conclusion of the
petitioner's case, \oilh Siincoi', 50.
S44
DKJEST OF CASES.
:{. Wlioro the right of the voti-
tioiuT to olaiiii tlu; HCiit is decided
adviTMuly ill one caso, it iH no pieja-
dict; to tliu rt.'sp indent's caso tluit
other charges aj^aiiist the petitioner
arc not pronounced upon. Soft/t
Vklorkt, 'I't'l.
4. Ilecrimiriatory <liar>,'os are p(!r-
mittt'd in tlie interest ot electors, in
order to prevent a successful peti-
tioner obtaining tht; vacated seat if
ho has violated any provision of the
Election Law. Ilnd.
,SV. also pp. 5ti!t, .->84, (117, 803.
REFRESHMENTS TO VOTERS.-
,sv,. pp. .-)•_'. -iO."), •-'.■)■-•, <<7I.
REFUSAL TO SWEAR. -.S'.' p. 780.
RESULT OF ELECTION. .SV. pp.
48!t, .■i;{0, .■>:{!•, 70.-).
RETURNING OFFICER. —Seinhh,
that the returiiinfj oliiccr i.s liotli ii
ministerial ami a judicial oliiccr ;
anil that he mi ^ht decline to receive
till' nomination o!' por.sons disipiali-
lied l>y stnhi.t or otlice, and also no-
mination papers signed liy un(|uali-
tied persons if he had good rciisona
for so doing. Sitiilh /I'l n/nir ('J),7(l,-».
SCRUTINY. - 1 . On a scrutiny the
jiractice is for tlie person in a min-
ority to place himself in a inaiinity,
and'theu for the person thus placejl
in a minority to strike oil' his op-
ponent's votes. SloriHonI, 'Jl.
•J. The (,'ourt having compared
the Voterw" List of 1S70 with the
poll hooks used at the eleetioii iu
the Township of llillier, found
that ;i"> persons had voted for tho
respondent whose names were not
on tho list of 187o ; ami the names
of such persons having hecn struck
otT the poll, the respondent was
found to he in a minority ; and the
seat was thereupon awarded to the
other candidate, he having ohtained
on the scrutiny a majority of the
votes. Priiii-i Eiliiuinl, Kit).
;i. Where a petition claims the
seat for the uiisi'-cessful candidate,
a scrutiny of votes may he ordered
to he taken in each municipality hy
the Uegistrar acting for tlie Judge
on the rotd. H'r-si Elijiii, 227.
4. During the scrutiny of votes
the respondent abandoned the scat
to iiis op;ionent, after liin o)>ponent
had secured a majority of s votes,
and agreed that .inch shuiild stand
as his opponent's majority, and
that the ( 'ourt should declare siurli
opponent duly clectod ; and the
same was ordered by the Court.
//>ht.
r». During tho progress of a si'riiti
iiy of votes, certain ballot and other
papers were stolen from the Court,
which had the ellect of lendtring
the scrutiny useless. L'iu'oIii (2),
480.
•>. Particulars for a scrutiny of
votes weri! deli vereil by the risponil-
eiit objecting to certain voters, as
(1) aliens; (21 minors; VA) not
owiuirs. tenants or occup.uits of
the pro])erty assessed to them ; and
(4) farmers' sons not residing with
their fathers upon the farm, as re-
(juired by law. On a motion to
strike out such particulars ; //'•/'/,
that under the " \'i iters' I.,ists
Finality .\ct" (41) Vie., e. 21, s. .'<),
the legality of the votes so objected
to could not be iiu|iiired into, and
tliat the itarticulars should be
struck out. Soiilli iy,iit>i'i>iili, .l.'ll.
7. A petitioner claiming the seat
on a, scrutiny may show, as to votes
polled for his opp ent:(l) That
the voter w.ts not years of age ;
(2) that he was not a subject of ller
Majesty by birth or iialurali/.ation ;
(.'<) that he was otherwise by law
previ;uted from votim; ; and (1)
that he was iKjt ajtually and Ikjihi
ji'l'' the owner, tenant, or occujiant
of the real property in respect of
which he assessed. Xor/h Viflitriit,
.■)84.
!<(■( also p. y.W, and II \'ic., c.
21, O.
S. On a preliminary objection to
a petition I'laimiiiLr tlu; seat on a
scrutiny, tlieCourt declined to strike
out a clause in the petition which
claimeil that \ot''sof persons guilty
of bribery, treating ami undue iii-
lluence, should be struck oil' the
poll. The giver of a bribe, as well
as the receiver, may be indicted
for bribery. Ihiil.
0. Kvidence of corrupt practices
committed by persons in tlie inter-
est of both candidates at the pre-
vious election, may be giveu at the
SECURITY,
S4o
ago :
tioii to
I oil a
striku
whicli
guilty
liie ii?"
)li' tlie
Is well
ilictecl
ictices
intcr-
lio pro-
lat the
trial of the aecond petition, with
thf vi( w of striking oil' tht) votes of
any f^uch pcrsoiiH who may imve
voted 'it tin- scconil eluctiun. Corn-
laill (•_'), ti 47.
SECURITY.— Tho security in tliis
case was ofl'ercd, in the shape of a
dominion note for !<l,oO(t, to the
IJegibtrar of the Court of Chancery,
who stated to tho petitioners'
solicitors that ho could not receive
it, but directed them to make pay-
ment of it through tho Accountant
of the Court in the same manner ns
inontys were usually paid into
court. The solicitors then paid the
money into the hank to the credit
of the matter of the petition, ac
cnrdin(( to the usual practice of the
Court of Chancery. J/'l<l, that
the deposit of the security, as re-
i|uired by the Act, was properly
given. North York; 74!t.
SPEAKER ( 1 ) Report to. — 'I'he
fact of pennons having been re-
ported by the Judge as guilty of
corrupt practices at the former elec-
tion, lias not tin- etTect of disi(uali-
fyiiig them trnm voting at the sse-
conil election. The report of the
■ludge is not as to tlie.,. an adjuili-
cation, for voters are -lot, in a pro-
per judicial sense, jjailiis to the
proceedings at an eleotion trial.
Coriiinifl (•_>), (i.l7.
Si' also pp. 'JMN, .'>()•_'.
(•_') Certificate to — Tliel'oiut
cannot grant an interim ceititicate
declaring an election void, as the
statute contemplates only one cer-
tificate to tho Speaker, certifying
the result of the ilectioii trial.
Lincoln cJ), 4S!I,
SPECIAL CASE - - 1 . A special case
may be reservtul /or the opinion of
the Court of i,>i. ecu's I'.encli only
when the .lud',o presiding at the
election trial hut a serious iloubt as
to what the law is, or believes that
the Court might entertain a ditler-
cut opinion from that of the I'lec-
tion Judge. Xorth York, Wl.
'1. f,'"<'r(, whether, under :U N ic,
cap. S, sec. '20, the J Iota Judge has
power, before the close of the ca.se,
to reserve (juestions for the Court.
lirorkvlUi; WV.y
56
',\. Where a class of persons affect-
e<l Ity the decision of a ca.se is nu-
merous, and the <|Uestiou invoked
is one of general importance, the
Judge may reserve a tpecial case for
the opinion of tho Court of (Queen's
licnch ; and the Judge herodeinded
to take that course. />'(.<' York,
ir.ti.
So also p. 7-"
STOLEN BALLOi PAPERS. -.Vm u.
SUBSTITUTION OF PETITIONER.
—.V"' p. 48.').
TELEGRAMS.— The Court order-
ed the agent of a telegraph com-
pany to produce all telegrams sent
by the n^spondent an<l liis alleged
agent during the election, reserving
to the respondent the riglit to move
the Court of Appeal on the point ;
tho responsibility as to conse
"luences, if it were wrong so to
order, to rest on the petitioner.
Hoiilh (hfonl, ii4.S.
TENDERED VOTES.- I. Where a
vot'T oll'ered to vote at a jioll, but
did not ask for or put in a tendered
liallot paper. Ildil, that the Ballot
.Act re(juired the vote to be given
secretly, and that the parol declara-
tion oi the voter as to his voti
could not be received in order to
add it to the poll. Siroril'i rof' .
/.iiiro/n (2), .'iOO.
'J. The names of certain per>oiiKwho
were (|Ualitied to vote at tlie elec-
tion appeare<l on the last revised
assessment roll of the municipality,
but were omitted from the voteis'
list furnished to the deputy return-
ing otlicer and used at the election.
They tendered their votes at the
poll, but their votes were not re-
ceived ; and a majority of them
'^itated to the de( iity returning
ollicer that they desired to vote for
the petitioner. The petitioner had
.1 majority without these votes.
//'/-/, by the Court of (Queen's
iietich (alHniiing lli/x«,//, ,).), no
ground for setting asiile the elec-
tion. Norih I'irioriii ('Ji, t)7l.
;{. S' mill' , (l)That, though the onlv
mode of voting is by ballot, if it
became necessary to decide the
846
DIGEST OF CASES.
election by determining the right
to add these votes, it should be de-
termined in that manner most con-
sistent with the old law, and which
wuuld have saved the disfranchise-
ment of electors, and the necessity
of a new election. (2) If the right
of voting can only be preserved by
divulging from necessity for whom
the elector intended to vote, the
necessity justilies 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. (3) An
elector duly qualified, wiio has been
refused a ballot paper by tiie deputy
returning officer, cannot be deprived
of his vote ; otherwise it would
follow that because the deputy re-
turning officer had wrongfully re-
fused to give such elector a ballot
paper, his vote would not be good
in fact or in law. Ibid.
Sea also p. 780.
TAVBRN-KEEPBR.- .SVe pp.8, l.W,
187, 199, 2:J1, 252, 269, 362, .391,
420, 500, 671.
TREATING.— .S'cc CoiiRl'i-T Pr.m-
TK'KS (3).
UNDUE INFLUENCE. -,SV' CoK-
RIPT Pr.\(ticks (4).
VOTER. — 1. The Klection f.aw of
1868, by the term " owner, " gives
to a husband whose wife has an
estate for life or a greater estate, tlie
right to vote in respect of his wife's
property ; and that the petitioner
having that qualiticatio i, and being
in possession of his wife's estate,
was held entitled to petition. Pns-
cott, 1.
2. The name of the voter being
on the poll book is prima fac'n' evi-
dence of his right to vote. The
party attacking t\n'. vote may either
call the voter, or otfer any other
evidence he has on the subject.
Stormont, 21.
3. A voter being duly qualified
in other respects, and having his
name on the roll and lists, but l>y
mistake entered as tenant instead of
owm r or occupant, or rire ver.sa, is
not disfranchised merely because
his name was entered under one
head and not another. ////'/.
4. Where father and son live to-
gether on the father's farm, and the
father is in fact the principal to
whom money is paid, antl who
distributes it as he thinks proper,
and the son has no agreement bmd-
ing on the father to compel him to
give the son a sliare of the proceeds
of the farm, or to cultivate a share
of the land, but merely receives
what the father'? sense of justice
dictates ; //«/</, the son has no
vote. — Eamon'a I'Otn, N/nL
5. In a milling business where
the agreement between the father
and son was, that if the son would
take charge of the mill, and manage
the business, he should have a share
of the profits, and the son, in fact,
solely managed the business, keep-
ing possession of thaf mill, and ap-
plying a portion of tne proceeds to
his own use : Ifdd, that the son
had such an interest in the business,
and, while the business lasted, such
an interest in the land, as entitled
him to vote. — linllvcL'-i roU . /bid.
6. Wliere a certain occupancy
was proved on the part of the son
distinct from that of the father, but
no agreement to entitle the son to a
.share of tlie profits, and the son
merely worked with the rest of the
family for their common benefit :
Jf'ld, that although the son was not
merely assessed for the real but the
personal property on the place (iiis
title to tlie latter being or. tlie same
footing as the former), he Mas not
entitled to vote. — liaix-ifx voO:
Ibid.
7. Where the objection taken
was, that the voter was not at the
time of the final revision of the as-
sessment roll tiie hoHii fjl< owner,
occupant or tenant of the property
in respect of which he voted ; and
the evidence showed a joint occu-
pancy on the part of the voter and
his father on the land rated at S240:
lldd, that the notice given did not
[loint to the objection tliat if the
parties were joint occupants tliey
were insutliciently rated, anl as the
objection to the vote was not pro-
perly taken, the vote was held
good. — Baker's vote. Ibid.
8. Where the father had made a
will in his son's favor, and told the
VOTER.
847
takon
at the
the as-
owner,
loperty
~ ; and
occu-
tcr and
t 8240:
did not
if the
ts tliey
as the
3t pro-
held
■on if he would work the place and
support the family lie would give
it to him, and the entire manage-
ment remained in the son's liands
from that time, the property htint;
assessed in both names -the profits
to he applied to pay the dt^lit due
on the place : y/</</, that as the un-
derstanding' was that tht-son worked
the place for th'- support of the
family, and beyond that for the
benefit of the estate, which he ex-
pci'tcd to possess under his father's
will, that he did not hold immedi-
ately to his own use and lienefit,
and was not entitled to vote. —
ll'vort'* viiti;. Jliiil,
9. Wliere the voter had only re-
ceived a deed of the property on
which iie voted on the Kith Augu't,
187U, hut previous to tiiiit date iia(i
been assessed for and paid taxes ou
the place, but had not owned it :
ffi'ld, that not possessing; tlie (piali-
fication at the time he was iisses.seil,
or at the final revision ot tlie roll,
ho was not entitled to vote. —
(■<ilifj/'s roll . /hill.
10. Where tlie voter had been ori-
ginally, before I8(i.'> or I80(>, |)ut
upon the assessment niil merely
to give him a vote, but by asubse-
(|uent arrangement with liis father,
nj.ide in iNfJ.'i or ISIifJ, lie wan to
support the father, and apply the
rest of the proceeds to his own sup-
port ; Jftlil, that if lie had been put
on originally merely tor tlie pur-
pose of giving a vote, and that was
the vote questioned, it would have
been bad : but being continued sev-
eral years after he really became
the r)ccupaut for his own benefit.
he was entitled to vote, though ori-
ginally the assessment beg ti in his
name merely to (jualify him. -—(Jon '•<
I'otf. Ibid,
11. Where the voter was the
equitiibie owner, the deed being
taken in tlie father's name but tlic
son furnishing tlie money, tiie
father in occupation with tiie assent
of his son. and the proceeds not di-
vided : //'/'/, that being the ecpiit-
able owner, notwithstamling the
deed to the father, he had the right
to vote. Held also, that being
rated as tenant instead of owner
did not atl'ect his vote. — Blair'-:
vote. Ibid.
\'2. Wh' re the voter aiiil his mn\
leased certain propi'ity, and tiie
lease was drawn in the son's name
alone, and when tiio crops were
reaped the sou claimi-ii they be-
longed to him solely, the voter
owdiiij otlier pro|ierty, but being
assessed for this only and vo'iuiton
it: //'/(/. that although he was on
the roll and h.ul the necessary i|uali-
fieation, but was not assessed for if,
he was not entitled to voU'. — f/ill m
foil. Ibid.
1.1. Where the voter was the ten-
ant of certain property belonging
to his father-in-law, and before the
expiration of his tenancy the father-
in-law, With the consent of the
voter (the latter being a witness to
the lease), leased the property to
anotiier, the voter's leiise not expir-
ing until November, and the new
lease being made on the *JSth March,
1870: /A/,/, tliat after the surren-
der by the lease to which he was a
subscribing witness, he ceased to be a
tenant on tiie -JSth of .Much, 1870.
and tiiat to entitle him to vote he
iiiiist have the <|Ualificat>on at tiie
time of the final revision of the as-
sessment roll, tliough not necessari-
ly at the time he voted, *o long as
he was still a resident of the elec-
toral division. — /{npi ii'i< ro>r. /bid,
14. Where a verbal agreement
was made between tlu^ voter and
his father in .lanuary, LS7<\ and on
this agreement the voter from that
time had exercised control, and took
the proceeiis to his own use, al-
thoiigli the deed was not executed
until September following ; //(/(/,
entitled to vnto.—'i'idlii,'/' !■'•' rotf.
/bid.
1."). Where a voter properly as-
sessed, who was accidentally omitted
from the voters" list, for polling di-
vision No. 1, where his property
lay, and entered fui the voters' li.st
for polling division No. '2, voted in
No. 1. though not on the list, his
vote was hehl good. Ihork-riUt-, 129.
I(). A.'s name appeared on the
as.sessment roll and voters' list as
owner, but no property appeared
opposite his name ; just below A.'s
name, the name of 15. was entered
aa tenant, with certain property
following it, but B. 's name waa not
848
nrOEST OF CASES.
brifketefl with A.'n. Fvidei wim
admitted toithiiwthat A. owned tlio
property next below hiu niiinc, for
which h. hiH tenant was uHsoHged aw
tenant, and A.'.s voto wiiniit«ld ;.'ood.
— Ihihr'.'* roll'. Hiiil.
17. The widow of ui> inte«tate
owner contin.iinjj to live on th»' pro-
perty with her thililn-n, wlio own
the eHtuto and work iind niaiiaeu it,
Hhonid not, till iior dower is us-
si^'iied, lie iiNsesNed jointly witii
the joint tenants, nor should any
intert'Ht of hers he dednetod from
the whole assessed value. NVIici'e,
therefore, four joint tenants and
Huch doweress occupied ])n>perty
assessed for .St'fK), the joint ttuiants
were held entitled to tiie (jualitica-
tion of Voters. ^'i/;-o//".>( ('(1^ . Ili'ul.
IS. Whore a hiisliand h;id posses-
sion of a lot for which he was as-
tiessed as occupant and his wife as
owner, l)ut which bilonued to the
wife'.s daughters liy a former hn.«-
hanil, his vote was heM good. —
IV/iiili i/'s roti . /hilt.
19. Wliere the ownoi- died intes-
tate, and the hushand of one of his
daughters leased the property and
received the rents, such liushaml
was held not entitled to vote.—
Lis/Ic'm rii/i\ I hill,
20. Wliere it was proved that for
sorne time past the owner had gi\c'!i
up the whol(> inan.igemont of the
farm ti> his son — retaining his right
to 1)0 siip)iorted from the pioihu't of
the place, the sui dealing with the
crops as his own, ;>iid disposing of
them to his own use— the son's vote
was held good. Cnlitir/I/, Moon,
((»(/ Sinifli'-s viilfx. lliiil.
'1\. Where it was proved tiiat an
agreement existed (verbal or other-
wise) that the son should have a
share in the crops as his own, and
such afljreement was ImiKt jidi- acted
on, the son hciiig duly assessi'd. his
\otc was held good ; the ordinary
test lieing : li;id the voter an actual
cxisiing interest in the crops grow-
ing and grown '.' //"'(/.
"2- Hut where such crops could
not be seized for the son's debt, the
son was not entitled to vote. —
J'Vaiicii' coll-, /hill
•J.'l. Where the ngrocn-.ent did not
show what sliare in the crops the
son was to have with his father, and
it ap]iearod to lie in the father's
discretion to determine the share,
such son was not entitled to vote —
.Id/iII'IIIII ■■< full . /hill .
'1\. Where a father was by a ver
bal agreement " to h.ive his living
otr the place." the son being owner
and in occupation with tht^ fatluT,
the father w as not entitled to vote.
WHIsi'k roll'. I hill.
from year to year
a sub-tenancy nor
to vote by giving
n the crops raised
-/hinliiim^
'J.'l. .\ tenant
cannot create
create a right
another a share
on the leased property.
villi-, /hill.
•Jli. Wherea man occupieda house
as toll collector, and not in any
other right, he was not t|ualitied to
vote. — J/'vl /•//(///•'.< ro'i-. /hiil,
27. The right to vote is not io ho
taken away or the vote forfeited by
the act of the voter unless under a
plain and express enactment, for it
IS a matter in which tithers besides
the voter are interested, —/iroi'krillr,
139.
•_'8. Where two partners in busi-
ness occupied premises the freeholil
(if which was \ istcd in one of thtm.
and the aiisessiiient of the premises
was sudicient to give a (|ualilicatioii
to each, both partners were held
(|Ualitied to vote -Fil-.ji raUrn mli-.
S(iiit/i lirf'iiril/i-, Ki.'i.
•_'!(. Where a father, the owner of
a lot.tol 1 his son that he might have
the lot and advised him to get a
deed drawn, and the lot had been
assessed to the son for ,'{ or 4 year.s.
and was rented to a tenant by the
father with the assent of the son,
who paid to the father his wages
hut the father collected the rent.
//(■/(/, that as there wius nothing but
a voluiit;iry cift from the father to
the son, without possession, the
son's vote was bad. — Liiiilif'.t ri)/i .
Ihiil.
'AO. Where a father had made a
will of a lot to his son who was
assessed for it. and the son took
the crops except what was used by
the father, who resided on the lot
with his wife, the son residing and
VOTER.
849
in busi-
fipoholtl
' of tlitin.
premises
litigation
i-ni lichl
i/il's riih'.
OWMfT of
itjlit have
to j,'f!t a
lail been
4 years.
l>y the
thu 8(in,
wai,'es
lie n-nt.
hiiigl)ut
athcr to
ioii, the
'l/'s Vlttr.
made n
ivho was
on took
used by
the lot
iu>' and
working on another farm //< />/, that
the Hon had not muh a heneticial
interest in the lot aH wouhl entitle
nim to vote. MiiU'in'^ ntlr. Ili'xl.
'M. Whert' A , who reniiUd ovtof
the riding, hail niatle a <;i>ntract in
writing to sell to H. the iimperty
aHsesseil to hini as owner, hut had
not at the time of the elcetion exe
ciited the deed, 15. having heeii in
possession of tlie property for sevural
years under Bgr.'eineiits with A,
//</(/. that A. was a mere trustee
for the purchasir, and liad there-
fore no right to vote. — //oA/'/f'.'*
I'ltli, Ihld,
;V_». Where a vendor before the re-
vision ol the assessment roll had
conveyed and given possession of
the property to a purchaser, and
Bueh pnicha.ser had afterwards uiveu
him a license to dccupy a sniill por-
tion of the property, su'-h vendor
was held not entitled to vote.—
yiihlii '.< (•()'''. /hill.
',VA. Where the owner of mort-
gaged property died intestate, leav-
ing a widow aiiil sons and daugh-
ters, and the property was sold
under the mortgage, md the deed
made to the widow, but three of
the sons furnished some of the pur-
chase money, ami all nniaiiicd in
possession, and the eldest son was
assessed as occupant. //«/'/, that
as the eldest son did not show that
the property was purchasid for him,
and the presumption from the evi-
dence being that it was bought for
the mother, such eldest son hail no
right to vote. - J/o/vo//''.< ruh , //*(</.
.■}4. A trustee under a will having
no present beneticiai interest in the
real property assessed to him, was
held not entitled to vote.--i/o//'->'
Vuti'. llild.
35. Where a voter was assessed
for property which lu; sold on the
'JTth February, 1871, before the re
vision of tne Asse.>*smeiit Ifoll, and
was not assessed for (tther property
of which he was in possi'ssion as
owner or tenant, he was hehl not
entitled to vote. — I'lmy't I'ott. Ilihl.
,S0. Tie mistake of the number of
the lilt does not eonu^ under the
same rule as the mistake of a name,
as the latter is provitled for in tiie
statute and the voter's oath IhhI.
'.V, . Where one of two loiutownprs
was assessed for property at .'<-lK(,
he was not t'lititled to vote. Ilmt.
iSS. \ voter whose i(uahlieatiou is
sueit'ssfully attacked may show a
right to vot<! en income ; but in
such cane ho must |irove that ho
has complied v.ith all the r'.'i|uiri'-
ments of the Act which are essen-
tial to (|ualify him to vote on in-
come. Uraji'-ifoti . I.iiiriilii{'2), MX).
'.V.h ,\ voter was a.^sessed in two
wartls of a town ; he parted with
his property i|ualilicatioii in one of
the wards, but voted in such ward.
//'/'/, that the vote might he sup-
|)orted Oh the ijualilie ition in the
other ward, which, if the voter had
voted on it, would have made it
necessary for him to vote in another
polling division, fiilisoii'i' roti\ /'</>/.
4(*. A person assessed for land he
does not own, tliougii receiving rent
for it from a tenant, is not <|ualitied
to vote.- Vlark't rute. ih'nl.
41. By the Dominion Kiections
Act of I87"<. the ([iialiliciition of
\oters to the House <»f Commons
was regulated by the Ontario Klec-
tioa Acts. North \'ii-ti,rki, .'>84.
4'2. The respondent was elected
by four votes. At the election the
names of twelve persons who were
(Mitered on the assessment roll as
"freeholders" appeared on the
voters' lists, owing to a printer's
mistake, v,h "farmers' sons." Their
votes were ehalleii^'ed at the poll,
and they weri' rctiuired by the peti-
tioner's scrutineers to take the
farmers' sons' oath, which they re-
fused. Subse(|uent!y they otl'ered
again to vote and to take the
owner's oath, ami the deputy re-
turning olHeer, who was also clerk
of the municipality, knowing them,
gave them ballot [lapers and allow ed
them tf) vote. //././, tl) That
having been rightly entered on the
assessment loll, the mistake as to
their iiualilicatioiis on the voters'
list did nut disfranchise them. ('2)
That their refusal to take the farm-
ers' sons' oatli was not a refusal to
take the oath rei|iiiied by law. A
refusal to swear is when a voter
refuses to take the oath ai»piopriate
to his proper description. \.'{) That
having a right to vote, although
850
DIOEST OF CASES.
they vot«d in a wrong capacity,
their vote* oould not he Htrmk oil.
FriHcott, ',m.
Ser alio p, fin.
VOTERS' UST8. — I. Special n-
port, and ohncrvationn on making
the reviled linti of votpm Hnal, ex-
cept as to inattcrn 8uhKC(|Uont to tiic
reviMion. Stunitoiil, iM.
'J. The proper list of voters to he
URed at an election it* " the last list
of vottna made, certitied, and d«<
livered to the Clerk of the Peace at
luaot one month hefore the date of
the writ to hold such election."
X An irr«-gular voters' list hnd
been used in one of the townships
in the Klectoral Division ; but that
the result of the election had not
been affected thereby, and that
the election waH not avoided. lUi'l.
4. //(/(/, following the Moiirk ium-
(.•{2 «,». M., 147, <iiit- 1.. ir.4), tiiat
tiie list of voters to be used at an
election must be the list made, cer-
titied and delivered to the Clerk of
the I'eace at li;ast one month before
the date of the writ to iiold such
election, /'rhin' Eihrdfl ('2), UJl.
.'i. The li.st of voters n.iea ut
the election in the Townsliip of Hil-
licr was not tiled uut'l the '28th No-
vemlicr, 1871, and the writ of elec-
tion wu.i tiated 9th December, 1871.
Ji'ld, th tt the list of voters of 1871
should not have been used. //>/>/.
(i. Ihlil, that the eHect of the
^'oters' Lists Finality Act, 1878, was
to render the voters lists final and
conclusive of the right of all per-
sons named therein to vote, except
where there had been a subseijuent
change of position or status by the
voter having parted with the inter-
est which he had (or by the assess-
ment roll appeared to have) in the
property, and becoming also a non-
resident of the electoral division.
South Wtntworth, 531.
7. Mistakes in copying the voters'
lists should not deprive legally
qualified voters of their votes any
more than the names of unqualified
voters being on the list would give
them a right to vote But the mere
fact that the lists were not correct
alphabetical lists, or had not the
correct numlier of the lot, or were
not properly certified, or the orni'.-
ting to do some act us to which the
statute is directory, is no ground
for setting anide uii election, unless
some injustice r"siiltoil from the
omission, r>r unles!) the reiiult of the
flection was atlected by the mis-
take. Sorlh Virtoiin, ,'(84.
8. The Court will not go behind
the voters' lists to inijuire whether
a voters' name was entered upon the
assessment roll in a formal innnner
or not. Xorth Simrop, (i]'2.
S>. Si nihil'. That the provisions of
the law as to how voters iire to b«
entered on the voters' list in respect
to their property, and as to the man-
ner in which tiiey are to vote, are
directory. I'nsioll, 78('
VOTING BY BALLOT. One W, a
voter who could neither read nor
write, came into a polling booth,
ami in the presence of the deputy
returning ollicer asked for one not
present to give him instructions
how to mark his ballot. The de-
puty returnin;{ otticer gave the
voter a ballot paper, who then stated
he wished to vote for the respond-
ent. One VV., an agent of the re-
spondent, in the polling booth,
took the pencil and marked the
ballot as the voter wished, and the
voter then handf'd it to the deputy
returning ollicer. No declaration
of inability to road or write was
made by the voter. //cA/, that no
one but the deputy returning otHcer
was authorized to mark a voter's
ballot, or to interfere with or iiues-
tion a voter as to his vote; and the
deputy returning otlicer permitting
the agent of a candidate to become
acquainted with the name of the
candidate for whom the voter de-
sired to vote, violated the duty im-
posed on him to conceal from all
persons the mode of voting, and to
maintain the secrecy of the pro-
ceedings Ifdlton, 283.
S>r also pp. 500, 511), 531, 671,
r-'o. /
80.
WEIGHT OF EVIDENCE. — .'•Ve pp.
8, 97, 187, 55(5, 579.
WITNESSES OUT OF COVKT.—Ser
p. 243.
/