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Dickson hi Baines, lie 100 Ballard v. Robins 128 ]iami)de v. Johnston 170 Bandon (Earl of) v, Becher. 120 Bank of Toronto v, Fannin^;. 1('»0 United States v. Dandrid{,'e 79 Barber v. Wood 53 Barclay v. Parrott 128 Barnes v. Williams 53 Barrow v. Wadkin 194 Baxter v. Newman 100 Bay ley v. Nantwich ... ,20, 66 Beal v. Ford 200 Beauchamp (Karl) v. Madres- lield 198 Beaver v. Watson 202 Bedford 180 Bcdfordsliire(Bonlield'sCase) 155 " (Brasier's " ) 149 '« (Conquest's " ) 149 •' (Joyce's Case) 149 158, 174 *• (Southwell's" ) 153, 149 lieenlen v. Hockin 40 Bennett v. Brumrttt 47 Benwell, Ex parte 20i> Beswick v. Ashworth 93 Beverley's Case 198 Bewdley 38, 72, 104, 105 (Evans' Case) 179 (Edmonds'") 179 Birkg v. Allison 17 Bishop V. Helps 20, 50 Blackstone's Commentaries. 189 Blain v. Pilkin^jton 57 blantyre v. Clyde 114 Bollen V. Southall 75 Bond V. St. George 15, 178 Boon V. Howard 181 Boustead v. Whitmore .... 151 Bradlaugh v. Clarke 94 Bradley v. Baylis 172 Brecon 78 Brewer v. McGowen 200 Bright's Husband and Wife. 147, 154 Brightly on Elections.. 190, 214 British & Am. Tel. Co. v. Colson 26 vi TAULE OP CA8KH. "IX ' I' Brockvillo 18.21, IfiO " (Hacon'H CaHo) .... I'.M) (CttlchveU'H " ).. .. ItM '• (Dunliain'B " ) ]7(t (l''riiiu!iH' ").... KiT (Ciilruy'fl " ) KiH, 'M't (IlL'Kloy'H ").... 1<»7 " (JohiiKon's " ) 1«>H (Lesli'j'H " ) 150, ir,8 (.McArtlnir'K Cusc). 20:5 (\Vlmlfv'H " ). lOH (Wiltse'*s " ), 108 Broom'H CoiiHtitutionnl Law 1112 Brooin'sLt'i^allMaxiins.. 7t), 8t» Brou;4h on Klectif)ns KJl Brown v. CJiancl Trunk K. W. Co 202 " V. Inyram 11. IHS Bro^nin*;. lU xvii Brumfitt V. IJremner (Jl Buckland, He 7^) Buhner v. Norris 100 Burj^'e'a Colonial it Forei{,'n Laws 101, It'iiS Burroughs on Taxation .... 210 Burton v. BrookK 155, 150 " V. Lant^hani 203 Butler V. Butler 152 Byrne's Case 30 C. Callin{^ton 70 Callis on Sewers lilO Calvin's Case l'J3 Cambridge (Lyon's Case) . . 178 Camidge v. AUeuby 45 Canada Gazette 105 Carroll v. lieggs 34 V. Foulkes 43 Catharine v. Surrey 180 Chambers on Elections 105, 150 154 Chapman v. Hall 102 Chase v. Miller 15, 170, 100 Chatillon v. Canada Mutual Fire Ins. Co 201 Cheltenham 103 Chitty's Archbold's Prac- tice 44, 53 Chorlton v.Linfis 11, 102, 188, 180 107 Churchill v. Crease 183 ('irenccHtcr l."-2 Clark V. J5nrv St. i:dMuindH81. 100 " V. Fuflcr 44 Cloatea V. Lisle ]nO Coke upon Littleton 70, 144, 147 148, 153, 205, 2()«; Coke's Institutes. .. .15, 188, l!),' Colchcater (Jefl'rev's Case).. 108 Collier v. Kin-i ..' 81, lOO Ct)llingwood v. Face 103 Colvill V. Lewis 4;i Conunittee on Parly. A' j\Iun. I'jlections 72, 05 Converse v. Michio 50 Cook V. Ilumber 172 Cooley's Constitutional Law. 1(<5 Cork 50 Coulter and Smith, Re 151 lie 03 Coventry 103 Cowburn v. Wearinf^ 75 Cox's Ancient Parly. Elec- tionb 143 Cox and Grady on Elections. 72 170 Cox V. Morgan 44 Crooks, lie 50 Croucher v. Brown 81 Crusoe d. dem. Blencowe v. Bugby 170 Curtis V. March 50 Cuthbertson v. Butterworth. 173 D. Dale v. Huron and Bruce . . 04 Daniel v. Camplin 17 Darley v. Darley 141^ Dashwood v. Ayles 75 Davidson v. Ross 103^ Davies v. Hopkins 47 " V. McKeeby 07 Davis on Registration 10f> " V. Waddington 155 Dean v. Green 100 DeGeer v. Stone 195 I 5 % .?« TABLE OF CASES. VU Dias V. DeLivcra 147 l)in>,'man v. Austin 151 ] 5i|iH(lalL''H Case 207 Disiiey'H CaHo '>•'» Dixon V. Olinir.H ll'.» Dubson V. Jones 203 Doo (1. Watson v. Jeffurtjon . . ii •■ l''it/.<^('ial(l V. riini .... KJl •• llay'v. Hunt VM " Patterson V. l^avis .... 101 " V. Sutton :50 " V. Thoinjjson .14 l)onet,'ani v. Doncj^ani !!>;{ Donnelly V. Doinieliy ..l.W. 170 Dorjuer v. Forteocue. ..... lOO Down 1B7 Drake q. t. v. Pri 'on !>7 Druitt, lie 111!) Dublin (Ilvland's Case) 171 Dufferin .' ',',H Duif^enan's Case 105 Dunlop V. IIij:^ins '2(5 Durant v. Carter 207 Durham 78 Dwarris on Statutes 110 E. East Nissouri v. Horseman . . 81 Kbsworth v. Fraser 10 I^kersley v. Barker 1 'i Klliott o)i Electors. .148, 1!I8, I'.t'J Ellis V. Thomijson HO, 15 Ernes V. 13arber i)l Evans & Fyiiche's Case .... 173 " V. Jones 80 Evesham 1«7 F. Ferrar's Case 109 Fields V. Adams 1S(5 Fitch V. Weber 194 Fleming v. Hill 109 Flounders v. Donner 10 Forbes v. Cochrane 193 Force v. Floud 48 Ford V. Boon 74 Ford V. Drew 207 " V. Hart 208 " V. Fyo 207 Foster, lie 93 Fowkc V. Draycott 14H Fowlo V. Trevor 204 Fox V. Dalby 20:i Freeman v. (lainsford lOO " V. Nevvnuvn 17 G. Gadsby v. Warburton ..... 17 Garnett v. Bradley 81 Gibson v. Michael's Bay Lumber Co 44 Gilchrist v. Kamsey 155 Gillies, 7.V 109 Giniuii, lie 195 Gloucester 158, 174 (2 O'M.tt H.).... 187 Gloucestershire 154, 150 Goderich Voters' List, lie . . 28, 51, 80 Godscll V. Innous 4(» Goldio V. Taylor 14«> Gorman, lie 109 G race v. Clinch 8(i " V. I<:ddy 74 Grant v. Paf^ham 38 Gray v. Pearson 77 Great Grimsby 198 Great Max'low 177 Greaves v. Ashlin 30 V. Tofield 103 Grenville v. CoUe.^'e of Physi- cians ()8 Griffin v. llisin;,' 9(> Groenvelt v. Burv.-ell <;8 G rover v. Zoutems 50 Guyer v. Smith 19U H. Hadtield's Case 105 Hall V. Brush c 43 Halton (1844) 189 Halton (1875) 104 Vlll TABLE OF CASES. Harper v. Charlesworth .... 161 Harris' Case 2(5 Harrison's Municipal Ma- nual 99 Harrison v. Williams 116 Harrop v. Hirst 87 Hartley v. Hurle 149 Hathaway v. Gumming .... 201 Haydon V. Cra\vfo"d 174 Heelis v. Blain 165 Henderson v. McLean 161 V. Weis 147 Henrette v. Booth 172 Herbert v. Ashburner 116 Hereford 103 Heydon v. Tiverton 160 Heywood on Elections 143, 154, 188, 190, 192, 198 Hicktoii V. Autrobus 45 Hinton v. Hinton 34 Hodge V. llegina 97 Hoey's Case 55 Holroyd v. Marshall 156 Holt V. Lyle 189 Hopkins v. Provincial Ins. Co 201 Horton v. Stamford 75 V. Leeds 208 Howitt V. Stephens 74 Hoyland v. Bremner 93 Huckle V. Piper Huddersfield 187 Hudson on Elections 11, 142, 145, 188, 198 Hughes V. Budd 44 V. Chatham 175, 202 V. Griffith 44 V. Marshall 198 Hunt V. Hibbs 9, 80, 85 I. Ipswich 187 J. Jackson v. Young 112 Jarman's Conveyancing .... 149 Jeffrey v. Kitchener 207 Jenkins v. Martin 162 Jennings v. Robertson 155 Johnston v. Flood 205 " V. Provincial Ins. Co 26 Jones v. Jones 17, 46, 78 Judson V, Lu^kett 17 K. Kamouraska Electoral Lists 84 205 Kearns v. Cordwainers Co . . 87 Kelynge 183 Kerr v. Stripi) 152 King V. Burrell .... 3, 89, 90, 91 " V. King , 155 Kingston's Case (Duchess of) 129 Kirton v. Dear 1(50 L. Laird v. Briggs 4 Langlois v. Baby 91 Laughtenborough v. McLean 4 Lawless v. Sullivan 210 Leather Cloth Company v. American Leather Cloth Company 44 Lee v. Priaux 149 Lees and Judge of Carlton, lie 53 Lelytfe Foulkes on Elections. 181 Lester v. Garland 59 Levy V. Lindo 155 " V. Moylan 53 Lewis V. Evans 56 " v. Toronto 80 Leynian v. Lattimer 198 Lichfield v. Simpson 89 " (Stringer's Case) . . 150 Lincoln (2 A. R.) 5, 9, 17, 36, 37,84,85, 105, 111 Lincoln (2) (Andrews ' Case). 195 (Clark's " ). 158 174 " (Johnson's " ). 197 (Mulrennan's " ). 194 Shenck's " ). 197 4 TABLE OF CASKS. IX \J,l ??• ■i 20 > 78 J- 17 ..^ 4 n 4 210 44 149 r.3 181 ry.) 155 53 56 80 198 89 150 111 195 158 174 197 194 197 ..iS, Liverpool v, \Vrif»lit 124 Llanclebig v. Llandyfryclo^'. . 8(> L'Origiual Voters' Liats, lu'. 28 31, 58, 60, 68 Luckett V. Bri^^ht 206 " V. KiHAvles 17 Ludlam v. Liullam 193 Lynch v. Clarke 19:5 M. Male on Elections 198 March, /vV 3 51 3l!xrcotte v. Paquin 9 Marshall v. IJown 9:! Mather v. Ailaiidale. .24, 25, 128 ^launsell v. Ainsworth .... 53 3Iax\vell on Statutes. .80, 82, 137 ^lay V. May 94 ]\Ierrick v. Sherwood. . . . 151, 163 Mcsiire v. Jiritten 43 :Meyler v. Metcalfe 206 Middlesex (Anstey's Case).. 206 159, 173 (Barbre's " ).. 191) '« (Chase's " ).. 145 " (Rice's " ).. 159 " (Sniith's " ).. 159 Midland II. Co. v. Amben,'ate 11. Co .'... 102 Milborn Port 76 ^littleberger v. Whitehead. . 45 :Monck 64, 121 Monmouth 187 3rontj,'oniery v. Graham.... 194 Muntreal Centre 78 Moore's Case 37 Moore v. Carisbrooke 15(5 3Ioorehouse v. Linuey 34 Morf,'an v. Parry 28, 63 Morse on Citizenship 215 ^forris v. Richards 43 Mulhcrn v. Fortune 170 Munro v. Merchant 193 Murray v. Thoruiley 165 Mc. McCann v. Waterloo Tire Ins. Co 26 McCrary on Ehctions ... .1, 197 McCiilIoch and Judi^'e of Leeds and Grenville 48, 67, 74, 90, 162, 167 McDoui,'all V. McMillan 201 Mclntyre v. Mclntyre 171 McKinnon v. Proud 43 ^IcLau<,'hlin's Case 171 McLean v, Pinkcrton 43 McNab V. McFarlane 174 McNift'e V. Tiernan 47 N. Nazer v. Wade 86 Neale, He 199 Nettleton v. Burrell 76 New .Windsor 18(5 Newton v. Crowley 94 " V. Harf^reaves 94 " V. Harland 54 V. Moberly 94 Nicholls V. Bulwer 75 V. Cumming 36, 50, 80, 84 Nickle V. Douglas 85 Nicolson on Elections ..188, 198 Nokes V. Gibbon 81 Nolan V. Fox 147 Northallerton 177, 178 187 North Victoria 2, 18, 22 Norris v. Pilcher 132 Norwich 108 Noseworthy v. Buckland. 57, 132 O. Oberlin v. McGregor 174 Oldham (Baxter's Case) 179 (Brown's " ) 34 (Harper's " ) 58 (Ilorsf all's " ).... 34 (Ogden's " ).... 62 Olive V. Ingram 16 i, 189 O'Loughlen, f!., parte 65 Onions v. Bowlder 45 Onslow V. BailitI of Ilasle- more 92 X TABLE OF CASES. Opinions on Voters' Lists Acts 39, 75, 83, 113, 12i>, 130, 1()H, 1()(», 218 Orme's Case 1<1>(3 Orme on Elections 11)8 Osborne v. JJank of United Btatea 71) O'Shea v. Meara 1G('> R Pa<^e V. Carew 54 Palf^rave's Parliamentary Writs 112 Park V. Humphrey 175 Parker v. Campion 20;i Parsons and Toms, ii'c. 32, (57, 08 Partrid^'e v. Wollbank 75 Passingham v. Pitty 81 Pater, lie 52 Pearce v. Monica Ill People V. Allen Ill " V. Cook 112 " V. Pacific Ins. Co IIG " V. Pease (Rivinot's Case) IDC) Pcfei'boro v. Hatton 121 Peterson v. Balfour 55 Petition of Minister of Edu- cation, lie 119 Pharmaceutical Society v. London itc. Supply As- sociation 77 Philpot V. Hunter 120 Phillpotts V. Phillpotts '.)2 Points V. Attwood 15 Pollard, 7.V 52 Powell V. Bradley 10, 231 " V. Guest 20t), 230 Proscott 18, 25, 150, 1!;3, 1\H\ Prince ICdward (il Pring V. ]'^>bCount 7ii Pritciuird v. Ames 1-li) Proudfoot V. Barnes 70 Pryce v. Belchers 87 Prynne's I'.rcrid J'arHitmeii- taria 142, 11)0 Putnam v. Johnsoi} 214 It it It ti B. Rawlins v. West Derby 43, 44, 50 Reading (Bavthe's Case). . . . JiM'i Reardon's Case *2U!) Reg. ex rel. Bartliffe v. O'Reilly 77 Carroll v. Beck- with 00, 190 " Chambers v.Alli- son 22, 34, 74 Cheyne v. Tilt.. 157 C'rozier v. Taylor 82 Davis V. Wilson. 82 Dundas v. Niles. 5 Ford V. Cotting- ham 22, 74 Forward v. Bat- tels 172 Felitzv.IIowland 152 Lackford v. Friz- zell 102 Lutz V. Hopkins. 00 McV'ean v. Gra- ham 194 Rollo V. Beard . . 82 Stock V. Davis. . 151) Telfer V. Allan.. 45 White V. Roach. 45 Regina v. Brighthelmstone... 177 V. Brighton 208 V. Cornwall Court of Revision ....21,50, 51 V. Derbyshire 110 V. Gamble d' Boulton. 199 V. Glamorganshire . . 08 V. Hagar I'll) V. Harrald 11, 191 V. Hartlepool 48 V. Ilolbeck 209 V. Lcfroy 52 V. Lichfield 4 V. Middlesex (Justices) 43 V. Norv/o(,'d 15, 170 V. Pearce 102 V. Poor Law Com- missioners 43 V. Pott it Shrigley . . 209 V. Robinson 30 II It II II ' .'•2 t TABLE OF CASES. XI ^.* *11 ■m la, 44, r>i) j^' ]i!i; 'i .... -JU!! i V. , v . . . . 77 ;t eck- .(',(;, lOG Alli- 2, i54, 74 ilt.. Iu7 •r' lylor 82 P son. 82 ■<» iles. o tiiig- '■^ . 22, 74 Bar- ''M; ... 172 land 152 Friz- .... 102 cins. ()0 Gra- .... 194 d . . 82 is.. 159 m.. 45 acli. 45 ne... 177 .... 208 t of , 50, 51 .... 110 ton. 190 e . . C.B .... l*'.'.* .11, 191 .... 48 ... 209 .... 52 .... 4 ices) 43 .15, 171) ... 102 om- . . . 4;$ Y . . 209 ... i!0 Rcf^ina v. Rochester 07 " V.Shropshire 59 V. Snider 90 " V. Soutliampton GO, 209 V. Stapleton 208 V. Sturdy 108 V. Wheeldon...- 183 V. Widdop 73 Reid's Intellectual Powers.. 102 Rendelsham (Lord) v. Havv- ard 198 Revell V. Dlake 73 Rex V. Aire and Caledonian Navigation Co 10 " V.Arnold 115 " V. Barker i)7 " V. Bishop of Ely 115 " V. Brown 181 " V. Corporation of Wells. 4 " V. Cumberland 59 " V. Ditcheat 100 " V. Duke of Richmond . . 177 " V. Everett 4 " V. Geddington 150 " V. Gravesend 4 " v. Great Harrington .. 115 " V. Inhabitants of Ruf- ford Ill " V.Leicester 51, 111 *' V. Llantillo Grossenny.. 150 *' V. Loxdale 110 *' V.Middlesex 49,70, 137 " V. Mitchell 208 " V. Norivich 85 " V. Robinson 97 " V. Sergeant 177 " V. Smith 181 " V. Sparrow Ill " V. Staffordshire 115 " V, Tower 110 " V. Unsworth 172 " V. Wilkoa 79 " V. Windliani 00 Richardson v. Police Com- missioners, Re 08 Riley v. Crotsley 93 Ritchie v. Putnam 195 Roberts v. Percival 159 " V. Drewett 159 Robinson v. McQuaid 51 Rogers on Elections. .29, 49, 70, 92, 145, 148, 1.50, 154, 155, 150, 100, 174, 182, 183, 198, 205. 213 Rogers v. Rajendro Dutt . . 87 " v. Harvey 200 Royal Canadian Bank v. Mitchell 102 S. Salter v. Hughes 192 Sanders' Justinian 191 Sangster v. Noys 43 Savage v. Deacon 185 Scarborough v. Bornian.... 148 Score v. Huggett 172 Scott V. Metcalf 173 Selden's Works 191 Seton V. Slade 155 Shaftesbury 49 Shannon v. Hastings Mut. Ins. Co 20 Sharpe v. Do St. Sauveiir . . 194 Sheddeu v. Patrick 193 Sheffield v. Bennett 137 Sherwin v. Whyman 75 Simeon on Elections 143 Simpson and the Judge of Lanark, Re 4(5, 48 Simpson v. Hartman 202 " V. Scottish Union Co 00, 115 *' V. Wilkinson 155 Sims V. Doughty 173 Sinclair's Division Courts Acts 54, 82 Smartle v. Penhallow 101 Smith, Kx parte 201 V. Clay 45 V. Huggott 20, 4;, *' V. HoUoway 48, ,58 " V.James 32 " V.Lancaster I37 Sone V. Ashton 153 Southampton 197 South Grenville 162 (Fitzgerald's Case) 205 (Ilolden's.. Case) 158 is] 'J I 'T xu TABLE OF CASES. r! South Grenville (Joues' Case) 145 " (Lundy's " ) 1»8 " (Morrow'H") 158 «• (Mullen's " ) 158 " (Nobliu's " ) 1«'.) (Stewart's",) 205 South Huron 38 South Wentworth, Gl, 101, 10(), 109 Spence's Orit,'in of Laws li)l Spencer V. Harrison ... 104,159 Spratt V. Spratt 195 Stamper v. Sunderland .... 172 V. St. Ives 103 Stark V. Chesapeake 195 Startup V. Macdonald 30 State V. McLean 112 " V.Newark 68 " V. Daniels 24, 90 St. Dunstan Charity Schools Re 81 St. Pancras v. Battenbury . . 03 Stephens on Elections 46, 71 91, 92, 145, 146, 148, 149, 165 Sterling v. Fredericton 210 Stockport 78 Stone v. Yeovil . , 4 Stormont 37, 101, 162, 167 (Blair's Case) 157, 173 (Braydon's Case) . . 157 (Bullock's " ).. 167 " . (Cahcy's " ).. 157 " (Eamon's '• ).. 168 (Gollinger's " ).. 157 (Gore's " ).. 168 (Hill's " ).. 171 (Place's " )157,194 •' (lianey's " ).. 168 " (Rupert's " ).. 171 (Weort's " ).. 158 Story on the Constitution., . 119 Story's Equity Jurisprudence 145 Stuart V. Baldwin 16<) Swift V. Jewsbury 83 Symonds v. Hallett 149, 152 T. Tanner v. Carter 208, 214 Tapping on Mandamus 115 Tarr v. McGahey 24, 90 Taylor on Evidence 36 Taylor v. Phillips 43 " V. St. Mary Abbott 15, 177 Theobald v. Duffoy 147 Thompson v. Ingham 67 Thorniley v. Aspland 93 Tildesley v. Harper 75 Toder v. Sansam 6 Trnis V. Cuming 46 " V. Luckett 172 Townsend v. Marylebone .. . 74 Trotter v. Walker 47 V. Watson 159 Tullett V. Armstrong 148 TuUy V. Farrell 190 Tyrrell v. Hope 149 U. United States v. Anthony . . 188 V. Elm 215 United Trust Co. v. U. S. Fire Ins. Co 112 V. Vance's Case 159 Vattel's Law of Nations 161, 193 Viner's Abridgment 161, 190, 193 W. Wadmore v. Dear 160 Wadsworth v. Marshall .... 53 Walkei v. Payne 213 Wallingham 103 Wallis V. Birks 159 Wansey v. Perkins 173 Warren on Elections. . . 193, 206 Watson V. Black 160 " V. Eales 59 " V.Pitt 4»> Watts, lie 68 Weaver v. Burgess 147 TABLE OF CASES. xin 'y • • 188 • • 21;> J. 112 AVeldon v. De Bathe ir)2 Wellinf,'ton v. Whitchurch . . 201> Wendover (Bening's Case) . . 11)8 West oil Peers loi West p]lf,'in 2, 22 " Toronto 44 Westcombe's Case 207 Whithorn v. Tlionias 178 Wif^an (Jump's Case) 204 " (Lyon's " ) idh " (Nathan's " ) 17<) Wildes V. Kussell 4 Wilkinson v. Britton 44 Williams v. East India Co. . 3(5 " V. Whiting 201 Wilson V. Marryatt 195 Wilson V. Salford 11, 188 Wood V. ( 'liajjin 112 " V. Hopper 1!>. 202 " V. Willisden 17,128 Woodward v. Sarsons 80,' 100 Workman v. Robb 175 Wright's Tenures 1<)1 Wright V. Mills r>'j '• V.Stockport 172 Y. York (U. C.) 1829 log Yorkshire lycj t it PRACTICAL SUGGESTIONS FOR THE REVISION OF VOTERS' LISTS. In an Enj^lish work of aomo repute (a) it is recommended tliat for the work of the Revision of the Voters' Lists, '"a Central Manager is essential. The one selected should be active, intelligent, and of good standing ; and to him it is the most prudent course to confide the entire business of revision, without the needless incumbrance of a committee. To each polling district an agent should be appointed, to whom the entire business of that district should be committed, under the direction of the Manager." In this country we are more favorably inclined to make use of "the needless incumbrance of Committees ;" as experience has proved that, when efficient, they are excellent workers and experienced engi- neers in practically moving and regulating the mechanics of an election contest. In many constituencies, the central organization takes the shape of a political association, with local branches in each municipality. To enable such committees or associations to deal practically with the Voters' Lists, the following suggestions are offered for the revision of the lists for elections to the Legislative Assemblv : — \ niOCEEDINOS FOR THE RKVISION OF THE LIST. L.o* several copies of the Voters' List be procured ; and also a • '•• .:ok (if about the same size, or larger, for each polling sub- divh "iu. Cut out the pages belonging to each sub-division, and paste the -nto the book on each left-hand page, leaving the right-hand page for memoranda or observations. 2. With this list, carefully examine the Assessment Roll, and ascertain and note on the right hand page of the Voters' List, the additions and omissions suggested by such examination : — First. Whether the Christian and surnames of those persons favor- ably inclined, and of those who are doubtful, are correctly entered (a) Cox and Grady's Law of Registration and Elections, Ixv. B m^ XVI PRACTICAL SUGGESTIONS. and spelled ; and whether the number of the lot, and concession, or other local description of the property is correctly ^iven. This should bo attended to carefully, otherwise there may be a loss of votes, as a person desiring to vote may hesitate and have difliculty in swearing,', at the poll, that he is the person intended to be named in the list. The qualification under which each person claims to vote, should appear opposite his name, for the purpose of idontification. Thus (1) if owner, tenant, or occupant, of real estate then it should state the fact, and describe by number or other proper desii^nation the partic- ular property ; (2) if qualified in respect of income or wa^e-earner, then the proper franchise title, and the place of residence in the Municipality, of the voter ; (3) if qualified as a landholder's son, then as such in respect of the particular farm or other property by the number of the lot or other known des'i^nation ; (1) where a voter has the requisite qualification in more than one pollinj^ sub-division his name should appear on the Voters' List for the sub-division in which he resides or is qualified. Remember that under the New Fi'anchisc Act persons can only vote in the Electoral District in which they reside. Second. Ascertain what is the date of " the final revision and cor- rection of the Assessment Roll," referred to on page 22, note (e). Third. Ascertain what persons named in the list and Assessment Roll, come within the classes of ca'-es mentioned in the notes on pages 34 and 38. Fourth. Ascertain what persons in the list will be of the age of 21 years, at any time within (50 days from the final revision and correction of the Assessment Roll. See notes {[/) page 0, and (./) page 40. Fifth. Ascertain what persons, although duly qualified and entitled to vote, have been improperly omitted from the list. See notes pages 33, 34, 37, 3<>, 40,112, 135. Sixth. If a voter has more than one qualification ; for example, if he be entitled to vote in respect of real property and is also rated in respect of income, see that he is entered on the list for both in case he should lose one of the qualifications before the election. See p. 235. In determining who are, and who are not, entitled to vote, the Assessment Roll is not conclusive as to the value of property, or the amount of income ; but evidence may be given before the County Judge to show the real value of the property, or the actual amount of the income or earnings. See pages 3/^, 3G. lion, or I should 39, as a ^rearin^, the list, should rhuB (1) tate the ! partic- i-earner, e in the ■r's son, party by /^oter has ision bis in which 'ranchisc icli they and cor- cessment on pages igo of 21 orrection 0. entitled ee notes [imple, if rated in 1 in case e p. 235. /ote, the y, or the County iiouut of RKVISION OF VOTERS* LISTS. XVll Let the cxaniinalion be conducted methodically : examine/r«/ the names of the persons entered on the list, and consider all questions atYecting them as voters : second, the property assessed, and its value, and the right to vote of any otlier persons interested in that property, as jointowners, tenants, occupants, or landholders' sons ; also as to income and wage-earner voters ; 'liird, see that the franchise titles of the various owners, tenants, occupants, landholders' sons, and income and wage jarner voters, are correctly entered on the list. 3. After luiving carefully examined the list, if it appears that corrections should be made, or that the names of certain persons Hhould bo struck off, or added; carefully prepare your lists of com- plaints, in the forms given in the schedule on page 241 ; and let them be signed at the foot of the notice by some person whose right to bo a voter cannot be questioned (see page 4(5). Where a person's right to projierty has been acquired between the making and the final revision of the Assessment Roll, the right of appeal belongs exclusively to the transferee of such property. See pages 39, 218, 222 and 227. These lists of complaints muat be given to the Clerk of the Munici- pality, or left for him at his residence, or place of business, leithin thirty daijx after the Clerk has posted up the Voters' List in his office. See pages 44 and 45. If the office of Clerk bo vacant, then give the notice to, or leave it for, the head of the Council of the Municipality, /. e., the Mayor or Ileeve at his residence or place of business. See pages 45 and 48. A notice given after that date is of no avail : lie Browning, 43 Q. B. 13. No fees are to be paid. The Judge of the County Court will then appoint a day for hearing the complaints. When you have given the notice, as mentioned above, devote your attention tc^ investigating the evidence to support the alterations and additions which you consider should be made. This should receive immediate attention ; and each committee-man's work should be properly defined for him, and promptly attended to, and should not be left to the last moment. If the persons whom you desire to give evidence before the Judge on tlie day appointed, refuse to attend ; or if you think that they will not attend to give evidence, unless compelled so to do, obtain a subpoena or order from the County Court, as mentioned on page XVlll PRACTICAL SUGGESTIONS. m ti > .•1 It M I ..i 51, and have the proper number of copies made and examined by tlio party wlio \h to serve them. Then have a copy served on each person whose attendance is requi/ed. Any number of names may bo inchided in tlie subptfina or order (page 58). By the subpoena or order, the persons named in it may be compelled to produce such papers and documents as you may think necessary (page 53). I'^ach person served with a subpaiua (with the exceptions mentioned hereafter) will be entitled to his witness fees according to the Division Court rates, which are as follows ; 75 cents a day for attendance at Court, and 10 cents per mile traveUing expenses, or railway fare actually paid. You need not, however, pay the fees if the person served is a person complaining of the lists, or is a person in respect of the insertion or omission of whose name upon the list the complaint is made, pro- vided he be resident within the municipality the list of which is tlic subject of complaint, or within the municipality in which the Court is held. See page 54. Before the day appointed by the County Judge, arrange the order in which you will call your witnesses, and note what you expect each witness to prove. "Arrangement and order" are essential to success as well as to expeditious despatch of business. On the day appointed for hearing the complaints, attend the Court with your evidence fully prepared. You should also be ready to prove the service of your subpoena, or order, (by the party who has served it) with a view to having the hearing adjourned, or the voter struck off, should the witness disobey the subpoena. See pages 52-58. If any appellant or complainant, entitled to appeal, dies, or aban- dons his appeal or complaint, or having been on the alphabetical list made and posted by the Clerk, is afterwards found not entitled to be an appellant, the Judge may, if lie thinks propw, allow any other person who might have been an appellant, or complainant, to inter- vene and prosecute such appeal or complaint upon such terms as the Judge may think just. See page 74. The County Judge has also ample power to amend all notices and other proceedings as he may think proper ; and notices should be amended so as to prevent voters from being disfranchised. See pages 73-75, 127, 129, 222, 226, and 231. "FINAL REVISION OF THE AS8B68MENT ROIJj." The date of the final revision of the Assessment Roll may be ascer- tained from the following rules. i REVISION OP VOTERS LISTS. XIX aa to 52-58. aban- cal list d to be other inter- as the ample •f think 8 from 31. .v.- ,.T,-J' '■■St 1st. In cities, towns, townships and villages, when no by-law has boon passed, altering the statutory dates for making the assessment : {a) If thort'were no appeals to the Courtoflierixion— on the day the Conrt finally passed the roll as certified by the Clerk, (b) If there u '-). (a) The Election Act (11. S. O. cap. 10) defines the pro- perty and other quaUtications essential to the possession and exercise of the electoral franchise, and adds a further rocjuisitc, — that of registration on a list of voters. This Act prescribes the procedure by which the names of all those who are entitled to that electoral fra'' Mse may be eni'olled and registered as duly ipialitied electors on such lists of voters. In elections under a law which imperatively requires registration as a qualification for voting, if the registrati(jn has been denied by the wvongful act of the Kegistoring Ot'ticer,.it has been h(ild that a voter's only reme- dy is by an action against the reg'stering ofificer for damages. Where, however, a portion of the voters of a given district ai*e unjustly deprived of or denied the privilege of registra- tion, and another portion are duly registered and permitted to vote, the entire poll may be rejected if the votes cannot be counted, and are sufficiently numerous to affect the result of the election : McCvarij on Elections, 13. (b) The system of providing a list of voters for elections has been in operation in England since the Reform Act (Imp.) of 1832 ; and in Canada since 1858. Prior to those dates electors were requireel to vote a>; the polling division nearest the property in respect of which they were qualified I i m. 3;! ir :n. lii ■I . i j i ! 1 ■ j i MANUAL ON VOTERS LIST: [R.S.O. C. 9. Clerk to mak'jlii-iti.f voters after revision of Assess- ment i'-oli. 2J. [As amended hij 48 Vic. cap. 3 (r)]. (1) The (12 Vic. cap. 27, sec. 13), and the Deputy Eeturning Officer - was required to enter all particulars respecting such electorK in the poll book (sec. 20). The lirst Act providing for the registration of voters, was passed in 1853 (1(3 Vic. cap. 153)' It provided(sec. 5, sub-sec. 2), that the Clerk of each municipal- i Ly should, after the final revision and correction of the Assess- ment Rolls, make out a correct alphabetical list of all persons entitled to vote at Parliamentary Elections within tlie municipality, according to the definitions in that Act, together with the number of the lot or part of a lot, or other description of the real property in respect of which such persons were so qualiiied. In 1854 the operation of tliis Act was temporarily suspended (18 Vic. cap. 7); and in 1854 it was repealed (18 Vic. cap. 87). In 1858 another Act was passed (22 Vic. cap. 82), which was amended in 1859 (22 Vic. cap. 10); under Vv'hich the entries on the Assess- ment Koll were declared to be final as to the qualifications of electors : IPcs/ Khjin, 9 U. C. L. J. 330. These Acts were consolidated in C. S. C, cap. B ; and were continued in operation until after Confederation by the B. N. A. Act, sec. 51. The Ontario Legislature in 18'j') re-enacted the former laws (32 Vic. cap. 21), but repealed the clause making the Assessment Roll final, except as to the value of tlie property assessed: North Vktoria, IT. E. C. 584, The A'oters' Lists Acts of 1874 (37 Vic. cap. 4) of 187G (39 Vic. cap. 11) and of 1877 (40 Vic. cc. 10, and 12) consolidated in R. S. O. cap. 9, provided for a revision of the voters' lists by a judicial authority, similar to that provided by the Imperial Registration Acts, but did not make such revision final : Lincoln (2) , H. E. C. 500. In 1877 the Legislative Assembly by a majority of one aifirnied the principle of giving finality to such judicial revision (10 Jour. Leg. Asscm. Ont. 90); and in 1878 the Voters' Lists Finality Act (41 Vic. cap, 21) was passed. Further amendments were made in 1879 (42 Vic. cap. 3) and in 1885 (48 Vic. cap, 3) which will be found in the subsequent pages of this Manual. (c) All the amendments to the original Act appear in brackets. s. 2, sru-s. 1. MANUAL ON VOTERS LISTS. Clerk of each municipality (d) shall, immediately after the [first] revision and correction of theas- (d) The Clerk, althou^li an officer of the Municipal Council, has, under this Act, public statutory duties to perform in addition to those required of liim as an executive officer of the Council. Tiie statutory duty of preparing,' a correct list of the qualified voters of his Municipality, requires him to compile a careful and alphabetical regis- ter or list of the names of the voters, together with a de- scription of their properties and their assessed values and titles. In the performance of this duty the Clerk is not in any sense tlie servant or officer of the Municipal Council, but is an ot'licer of the public, having responsible and im- portant duties to perfoi-m, the neglect of which will subject him to statutory penalties. And such penalties may be imposed not only for wilful but for inadvertant neglect : Kiuil V, Jhirri'U, 12 A. iS: E. 4()0. Mistake of duty and honest intentions will not excuse the offender : Ann/ v. Supervisors, 1 Wall. loC). The duty of the Clerk under the above section is imperative: "shall immediately after," etc., "make a correct alphabetical list." The word " sliall " is to be con- strued as imperative {Interpretation Act, R. S. O. caj). 1, sec. 8, sub-sec. 2). This list must be prepared and printed "with- in thirty [or forty] days after the final revision and correction of the Assessment Roll." The neglect of the Clerk is not to render " null, void or inoperative any of the lists in this Act mentioned " (sec. 23) ; but in case the Clerk fails to make out and publish the list, the Clerk of the Peace, or any elector, may apply summarily to the County Judge, and the Judge may make such orders as he deems neces- sary (sec. 2^). The Clerk may also be liable to a forfeiture of his office, or to an application for a writ of mandamus. " If an officer acts contrary to the nature and duty of his office, or if he refuses to act at all, in these cases, the office is forfeited:" Bacon's Abr. tit., '' OJices and Officers,'' M. " A general neglect or refusal to attend to the duty of such an office is a reason of forfeiture, a determined neglect, a 1 m I ■;•! MANUAL ON VOTERS LISTS. [r. S. 0. c. 9. 1 i:i!i sessraent roll in every year (e) make a correct alpha- wilful refusal." Per Lord Manstield, C. J., in Rex v. Cor- pomtiun of Wells, 4 Burr. '2004; see also IVildes v. Rnsnell, L. R. 1 C. P. 7'22. The writ of mandamus lies to command a public officer to discharge all the duties belonging, or annexed, to his office : Bex v. Mayor of (Jravesend, 2 B. A' C. G02 ; notwithstanding that he may be liable to a penalty for neglect : Rex v. Everet, Cas. Temp. Hard. 201. Thus where the overseers of one of several parishes in a borough omitted to make out the burgess list, and at the Revision Court of the Mayor, there was no list for the parish in which the name of the claimant appeared, a mandamus was granted: Regina v. Mayor of Liehfiehl, 1 Q. B. 453, s. c. 5 Jur. 889. A registering ofiicer may be required by mandamus to register the names of voters who are properly qualified : Davis V. McKeehy, 5 Nev. 309. (e) The words '^ first revision " are evidently incorrect, and should read ''final revision." By sec. 8 post, the list is to be made out within 40 days or 30 days " after the final re- vision and correction of the Assessment Roll." Besides it is not until after the final revision it can be said that x^ersons appear by the Assessment Roll to be entitled to vote. Where a word in a statute would make the clause in which it occurs unintelligible, the word may be eliminated, and the clause read without it: Stone v. Yeovil, 1 C. P. D. 091. A Judge may take a view that a word in a section is absurd, but that does not conclude that another may be inserted. And a Judge may take a view that there is enough in that and the following sections to enable him to insert the word : Laird V. Briyys, 19 Ch. D. 33. The Assessment Roll when completed and finally revised and corrected is the foundation of all pro- ceedings with a view to Legislative and Municipal elections, or Municipal taxation, and all copies and lists ought to corres- pond with il, for it is the primary or original Roll : Laugh- tenborough v. McLean, 14 C. P. 180. The duties of the several Municipal officers in preparing and finally revising the roll are prescribed by R. S. O. cap. 180 as follows : 8,2, SUBS. 1.1 M.YNUAL OM VoTEIls' LISTS. 5 betical list ( f) in three parts (Form 1) of all *per- [*" Male •■ - ^ ^ struck out.] (1) The assessor "shall bef*in to make his roll not later than the 15th February, and shall, before completion, serve a notice on every party assessed, and shall complete his roll before the 30th April " (sec. 42) ; and " on or before the 1st May shall deliver to the Clerk such Assessment Roll completed and added up" (sec. 13). (2) Notice of appeal by any party complaininfj of assessments shall be given before the 15th May, or witnin fourteen days after the return of the roll in case the same is not i^vurned within the statutory time (sec. 50, sub-sec. 2). (3) The Court of Revision may meet after the 20th May (sec. 52), and shall complete its final revision of the roll before the 1st of July (sec. 50, sub-sec. 19) (4) Notice of appeal to the County Judi;e, from the decision of the Court of Revision, shall be given before the 0th July (sec. 59, sub-sec. 2). (5) The County Judge shall determine all appeals before the 1st August. If cities and separate towns pass by-laws under sec. 44, then the assessment is to be made between the Ist July and the 30th September, and the roll is to be returned by the 1st October. The Court of Revision is to close its sittings on the 15th November, and the County Judge is to determine all appeals by the 31st December. County Councils may pass by-laws for taking the assessment be- tween the 1st February and the 1st July, and the dates will then be regulated by such by-laws. See R. S. O. cap. 180, sec. 40. (0 The object of the Voters' List is to furnish an official alphabetical register of all persons qualified as voters. It is also to enable all persons interested in the election to have a check at hand at the time of polling the votes : Regina ex rel. hunda^ v. Nih'^, 1 C. L. Ch. 198. And so that the voter may be easily identified when he tenders his vote at the polls : Lincoln (Berston's Case) 2 App. R. 324. " No person shall be admitted to vote unless his name appears on such list ; and no question of qualification shall be raised at any election except to ascertain whether the person tendering his vote, is m i i I i 6 MANUAL ON VOTERS LISTS. [r.S.O. c. 9. sons being of the full age of twenty-one years (f/) and subjects of Her ]\[ajesty by birth or naturali- zation (Ji), and appearing by the assessment roll i the fi.ime person intended to be desij^nated in the said list :" FAcction Act, II. S. O. cap. 10, sec. 7.3, ([)) The full n^e of twenty-one years is completed on the day preceding the anniversary of a person's birth: Anon., 1 Salk. 44. A. was born on the KJth August, 17*25, and died on the loth August, 1740 : Held, that he lived to attain the full age of twenty-one years : Toder v. StDitKUii, 1 Brown's P. C. 4(')8. If by the entry on the Assessment Koll under the heading " age of the assessed party," it appears that the person is not 21 years of age, the Clerk cannot enter his name on the Voter.->' List ; but such person, if ho will attain the age of 21, within 00 days from the final revision and cor- rection of the Assessment Roll, may apply to the Judge to have his name entered. (See sec. S, sub-sec. 4, ^)o.'-7). (//) These words, " subjects of Iler Majesty by birth or naturali.'iation," cannot bo construed to give the Assessor or the Clerk jurisdiction to determine whether a particular per- son, duly entered upon the Assessment Roll, is an alien or a subject of Her Majesty. The presumption of law is that " the resident and assessed inhabitants of this Province are liritish subjects:" Per Robinson, C. J., in Ih'diiui ex reJ. Carroll v. JU'clicith, 1 Pr. R. 284. The Clerk is bound to accept the proper entries on the Assessment Roll, and must leave to the judicial proceedings before the County Judge, the nuestion of alienage or naturalization. But lie is bound ij ^ fcucli entries on the Roll as indicate the 'Sea-," or the " ..'f/,' 'V -• assessed pa,rty," by which he can ascertain v,-ho ;'"»■ iHni.ri rr inliturn, as there is no in-esumption of law affect- iuj' vl «"i . ight. If the Clerks find the term "alien" or " loreiguer,'' or *' not a British subject," entered on the Roll, he sliould not assume to determine the question of jvliemige or naturalization by omitting the name from the Voters' List. It may be here stated as an historical fact, in (j. 2, suii s. 2. MANUAL ON AOTEUS lAHTB. to 1).) ontitled to vote in the muni(!ipalil.y (/), pi'" tliiB connection that a clause in tlio ICloction Bill of 1877, (10 Vie. cap. 10), fiirectin-,' the assessor to indicate on his roll British subjects or aliens, was struck out as giving an unwarrantable power to an assessor to determine a mixed question of l«w and fact, aj^ainst the ordinary presumption of law. See Ontario Bills of 1877, No. 122. (/) " Entitled to vote." Prior to the first I'Vanchisc Act of U'2'J, (8 Henry VI. c. 7,) the Conmion Lav/ Franchise of England gave to all the resident inhabitants of each county, whether freeholders or not, the right to vote, (see note (/;) p. 141). By that Act the " aristocratic spirits " of Parlia- ment declared that the ownership of land worth 40a. a year, should be tlie standard for electoral intelligence in counties ; but it loft the common law or local charters to regulate the qualifications of borough voters. In 18I52 the Imperial Befo'-ni Act effected a great revolution in the law affecting electors ; which was followed in 1867, 1«78 and 18S4 by Acts largely extending the franchise ; and under v/hich seven classes of voters in counties, and five classes in boroughs have now the right to voio at Parliamentary Elections in England. In Canada, iip to 1853-4, the county franchise —still keeping to a landed qualification — was limited to " owners,'* and the city and town franchise to "owners" and "tenants." Then " occupants " were added. In 1874 the electoral capa- city of persons assessed for " income " was recognized. But it was in 1877 that the first partial abandonment of the old statutory qualification was made by the admission of " Far- mers' Sons " to the franchise. In 1885 a further extension in the same direction was sanctioned, giving some additional legislative recognition to the old common law franchise. Modern political legislation is gradually repealing the Act of 1429 ; but still the people's right of suffrage depends upon their being classified under an elaborated series of titles, having a minimised and vicarious grasp on a " property " qualification, and registered under rules which in some instances are inharmonious and technical. The fol- lowing table summarises the present titles and qualificationB of voters at Legislative and Municipal elections. J'Tl r 1 1 n ¥' m : ;! W ¥i 8 MANUAL ON VOTERS LISTS. LEGISLATIVE ELECTORS. [R.S.O. C.9, Persons assessed as — (1) Owners \ (2) Tenants CA) Occupants (4) Indians— Subject to the same qualifica- tions and restric- tions as other \ persons, and who are— (a) Enfranchised... (&)Not resident with other In- dians (c) Not participat- ing in annuities*' (5) Tncotne (6) Wage-earners (7) Householders + — sole tenants or oc- cupants of dwell- ing-houses (S) Landholders' so7i8— \ (a) Sons of owner Father owner Mother owner (6) Sons of tenant Father tenant Mother tenant Residence in Electoral District. Besidents at final revision of the As- sessment Boll.and at the Election. Besidents continu- ously since final revision of the As- sessment Boll, and at the Election. Besidenco in father's dwelling for 12 months prior to Assessor's return of the Assessment Boll, and at the Election. Assessed Value of Qualification. Cities and Towns 8200 ; Villages and Townships, $100. I $2.50 taxable. je250 to $400 not ' taxable. No assessed value. / Father as owner of 20 acres, no as- sessed value; as owner or tenant of other real pro- perty: cities and towns, !^400; vil- lages and town- ships, .S200. MUNICIPAL ELECTOBS. Persons assessed as— Besidence in Municipality. Assessed Value of Qualification. (1) Freeholders (or Own- ers) (2) Householders (or Oc- cupants) (3) Tenants Besidents and Non- residents Besidents for one month before the Election Besidents continu- ously since final revision of the As- sessment Boll Besidents with father on farm owned by father for 12 months prior to Assess- or's return of the Assessment Boll (cities, $400. Towns, .'5300. ■ VillugcB, .'?200. 1 Townships ^100. (4) Income ■ I $400. (5) Farmers' Sons (a) Sons of ownersj of farm..... Father's farm assessed at an amount suffi- cient to give father Father owner Mother owner V at above ratio of qualification. ♦ This applies where there is no Assessment Boll or Voters' List. t This is additional to the quahiicatiou of a Householder as an " Occupant. s, 2, sri!-s. 1.1 MANUAL ON VOTERS LISTS. 9 lixing to tlio name of each person his number upon the roll (,/). (2) The first of the three parts shall contain !'''•«* I'^rt. the names, in alphabetical order (/.), of a11 male persons of full a^e and subjects as aforesaid, ap- pearing by the assessmeut roll to be assessed for the real property or income requisite to entitle him* to vote in the municipality at both munici- ♦.sv,-. (j) The munber on the Asessment Roll is required for the purpose of a more easy identification of the voters, especially where there may be more than one person of the same name on tlie lloll. The Clerk cannot investi<^ate the right of any person to be entered upon the Voter's List ; Ijut he is bound by what appears properly recorded upon the Assessment Roll, and he must take the Roll as his sole <,'uide : lie Liiirnhu 2 App. R. 324. (k) The list made out ou<^ht to be an alphabetical list : Hunt V. Hibbs, 5 H. tfc N. 123. The primary object of insti- tuting lists was to secure f^reater efficiency and convenience in conducting the elections, by making the lists the sole re- cord and table of reference on election day. To this end it was absolutely essential that the alphabetical list should contain the name of every person entitled to vote. It was expedient, but not essential, that it should comprise a description of his real property for the purpose of identifi- cation, which was the only question oT qualification which could be raised at the election : Per Moss, C.J., lie Lincoln {Berston'n Case), 2 App. R. '6M. The electoral list is a docu- ment of the highest importance, for upon its validity may depend the legality of the election. No element of uncer- tainty should be allowed to find its way into the proceedings affecting it ; and it is tlie duty of the Court to insist upon a strict adherence to the directions of the legislature regard- ing it: Marcotte v. Vaquin, 5 Q. L. R. 1(')8. 10 r^AMJAL ON VOTE its LI8TS. [R.S.O. c.[). Smuu!-'' P^^ tloctioiis (/j and elections for members of P'l M^\J cipRicioc- the Legislative Assembly (m). tors '■I (/) Tlio ^Muiiicipal Franchise, since 1R85, ia higher than the Lc»,;islative Franchise, and inchules three classes of voters. The qualilications of persons whose names are to be taken from tl;e Assessment Roll and entered on the Voters' List in the first part (and who are not disqualified as defined in notes (»), (o) and (q) pp. 11, 12.) are: (i) male per- sona of full age, (ii) renidcnt and non-retndent, as described in the table to note (/), and who are qualified as follows : (1) lu'dl PnijK'rtij Fr(nirlii--!c : (-() Entry of name on the Assessment l?oll as (h) Freeholder (F.) or Owner (().); Householder (II.) or Occupant (Oc.) ; or Tenant (T.), of real property ; (c) of the as-sessed value in cities, f 100 ; towns, $300 ; incorponited villages ^?200 ; townships, $100. (2) Income Franchise : {a) Entry of name on the Assessment Roll ; (b) as assessed for income of not less than $400 ; (f) residents in the municipality. (3) Farmern' Sons'' FrancJiise : (a) Entry of name on the Assessment Roll, — the provision for v.diich entry was re- pealed by 18 Vic. cap. 42, sec. 4, (O.) ; (/;) being the son of the owner and actual occupant of a farm of not less than 20 acres ; (c) assessment of such farm at an amount sufficient, if divided between such owner and his sons, to give the statutory qualification to each. (in) In the preparation of this first part, the Clerk should refer to the Election Act, sec. 4, and ascertain whether any of the persons apparently (lualified as above, appear on the Assessment Roll under the column "occupation," as holding any of the disqualifying official positions which prevent them voting at Legislative elections. The persons qualified to be entered as Municipod Electors as above defined, are also qualified to be entered as Legislative Elec- tors, unless disqualified from voting at Legislative elections by the Election ^cf,;suchas Judges of the Superior and Coun- ty Courts, Officers of Customs, Clerks of the Peace, County Attorneys, Registrars, Sheriffs, Deputy Sheriffs, Deputy H. 2, KCB-8. 3.] MANUAL ON VOTKIIS LISTS. 11 (8) Tlio second part (//) shall contain the s.H'oni names, in alphabetical order, of all other male'"' ' persons of full age and subjects as aforesaid fand of all widows and unmarried women (o) of full ago and subjects (j)) as aforesaid, and] ap- pearing on the assessment roll to be entitled to Clerks of :thc Crown, Crown Laiul Aj^euts, I'ost- mastcrs in Cities and Towns, Excise or Inland Ilevonue Onicers (II. S. O., cap, 10, soc. 1) ; and Stipendiary Ma^'ia- tratos (IH Vic. cap. 2, sec. 10). (») The qualifications of persons to be entered on the second part as Mimicipul cotcn only are : (1) Male persons of full a.^'e who are entered upon t!ic Assessnieiit Roll. (2) Farmers' sons, where the amount of the assessment of the farm of 20 acres, if equally divided between fatlier (as own- er) and son^ , won 1 1 j^ivethe municipal qualification to each, and whose namos are not entered in the first part, (.'i) Wi- dows and unmarried women who are ni their own right rated for a property or income (jualification sufVicient to qualify male voters to vote, (see 47 Vic, cap. 32, sec. 3). (()) Women are not entitled to vote at any Parliamentary election by R. S. O. cap. 10, sec. 0. Women beinj^ under legal incapacity have no common law right to vote in England: ChorUon v. /w'/(//.v, L. R. 4 C. P. 374 : Vi'il.ion v. Township of Sal/unl, L. R. 4 C. P. 398. Nor in Ireland : //».7s(»(, on Elec- tion, laO. Similarly in Scotland, " by a long and uninterrup- ted custom:"' Brown v. Imjram, 7 Sess. Cas. (3rd ser ) 281. By 32 it 33 Vic. cap. 55 (Imp.), women are entitled to vote for councillors, auditors and assessors at Municipal elections in England; but they lose that right on their marriage: Ilcii. V. Harrahi, L. R. 7 Q. B. 361. By 47 Vic, cap. 32, (Ont.), widows and unmarried v.omen may vote at Municipal elections in Ontario. See further note (c), p. 40, llodyins on titc Caiuidian Fi'anchit200 ; in incorporated villages and townships of ijflOO. (2) Incoiiw Franchise : (a) Entry of name on the Assess- ment Roll [b) as assessed for income of not less than $2.50. (3) }\'aiic-earner''s Franchise : (a) Entry of name on the As- sessment Roll ; (b) having eai'ned wages or income of not less than S'250, but (c) who is not taxable for the same. (4) Hoiiseholderti' Franchise : (a) Entry of name on the As- sessment Roll as (b) householder, (H. or Oc.) and as sole tenant and occupant of a dwelling house ; (c) no assessed value required. 9. 2,Hcn-8. 5,] MANUAL ON VOTERS LISTS. 18 in iilplmbetical order, of all other male persons of full a<5u and subjects as aforesaid, appearinf,' by the assessment roll to be entitled to vote in the municipality at elections for members of tlie Lo«iHiiitivo Lc^,Mslative Assembly only, and not at municipal oniy^'"* elections. [{')) The name of the same person shall not Namo to bo be entered more than once in any sucli part (;•)]. I'litoied once. (')) T.duilliiildcr.'i' ,S'(*(w' Fnnichhf : (u) Entry of name on the Asst'ssment lioU ; (h) us the son of the ownei- and actual occupant of a farm of not less than 20 acres (no assessed vahio rcijuired in the case of sons of owners of farms) ; or ((•) as the son of an owner (O. or F.) or tenant (T.) of real property ; ((/) of the assessed valueof '?100 in cities and towns, or S'20(J in incorporated villa^'es or townships. There is no provision, cs in the case of Municipal electors, requirinj^ tlio lunnher of sons' votes to be regulated according to the assessed value of the farm or other real property. If the assess- ed value appears as stated above ('S400 or f 200), all the sons (of full age) resident or domiciled with the father, are en- titled to be entered on the Voters' List as Legislative elec- tors. (t'l) Iiiiliitn Franchixe ; (a) Indians are subject to the same (pialitications and restrictions as other persons mentioned above; and in addition: (h) must be enfranchised, or (c) where there is a Voters' List, not be i-esiding with other Indians though participating in Indian annuities, etc. or (d), where there is no Voters' List, iv fc be residing with other Indians, and not participating in Indian annuities, etc. (/•) There is an ambiguity in this section owing to the use of the terms " municipality " and " ward " in the various clauses of this section which will create some difficulty in construing it. The Franchise and liepresentation Act, 1885, (is Vic. cap. 2), limits the right to votw at legislative elections to residents within the electoral district ; and the above clause II i i a. .Mi \ li ! j Tf I I 14 MANUAL ON VOTERS LISTS. LR.S.O. c. 9. Lists for (6) Whore a municipality is divided into poli- diviSs! ' ing sub-divisions, the list (to be made in three (5) wlieii read in connection with sub.-ss. 1, 2, 3 and 4, re- quirinfijthe Clerk to make out a list of all persons '• entitled to votoin the municipality," show that the clausos of the Voters' Act hthve been franiod in harmony witl the rules j^overnin}.' the legislative ratlier than the municipal franchiiic, viz: one entry on the \oters' List of the ]\Iimic';\iliti/, and one vote. But sub-sec. 8 evidently varies that construction, for it pro- vides that a person assessed in two or more polling sub-divis- ions in a " icardof anil 'i^!>»tcil>■) "Where the tow hip is divided into Municipal wards and also into polling sub-divioions for elections to the Legis- lative Assembly, the Clerk is bound to follow the directions of the Act, viz : to make out the Voters' Lists according to the boundaries of the polling sub-di\ isions, as well as accord- ing to the ward divisions. 16 MANUAL ON VOTERS' LISTS. [ll.S.O. c. 9. proper column of the voters' list, the number of any lot or other proper description of any par- cel of real property in respect of which eacli person is so qualified ; [t) adding thereto, where •'at i (t) It should appear on the Assessment Roll by what title the voter claims the franchise, whether for real property or income, or as a wage-earner, or land holder's, or a farmer's son. For " the number of the lot or other proper descrip- tion of the real property," the Clerk must look to the Assessment Roll alone. The Assessor in preparing his roll is required (R. S. O. c. 180, s. 12), " after diligent enquiry," to set down "according to the best information to be had," " the number of concession, name of street, or other desig- nation of the local division in which the real property lies," " number of lot, liou^e, Sic, in such division." The English Registration of Voters' Act (fi Vic. c. 18, s. 101), requires that " the person, place or thing shall be denominated in such schedulo, list, register or notice as commonly under- stood." The words " commonly understood " would seem to imply some clumsy description, which, though inaccur- ate, sufficiently points to the house or other thing described : Floinuh'rs v. Doinwr, 2 C. B. ()I3. As where a person describes a parish by a popular name, or where part of a name is omitted : 7v7;.s(co/-f// .\ Fairer, -1 C, B. d. " The Rate Roll must specify the description of property in respect of which the occupier i"-" rated, — house or land, or something by which it may be ascertained whether he is pi'ojierly rated :" Per Abbott, C. J., Rex v. Aire and Cabler Xdviiidtimi Coiiqnnnj, i D. S: R. 253, s. c, 2 B. cfe C. 243. The direction in the form appears to intend that if a house be in a street, lane, or other like place in the parish, the street or lane shall be mentioned ; and that if the houses be numbered the number also shall be given ; but that if the house and premises be not in a street or iane, or other like place, but on a road or on a common, or the like, then the name of the property shall be given, if known by any, or the name of the occupy- ing tenant : Ekerdey v. Barker, 7 M. & Gr. 76, s. c, 8 Scott s. 2,sun-s. 7. i JIANUAL ON VOTERS LISTS. 17 the person is so qualified [in respect of more than one. such lot or parcel, the words ** and N. R. 890. It is a question of fact for the Revising Barrister whether the nature or description of the qualification is sufficiently described for the purpose of being identified : Wooil V. U'illcfiih'n, 2 C. B. 15. The place of abode of a voter is no part of his qualification : Lttckett v. Knoirhs, 10 Jur. 99. A voter's i^lace of abode was described as "Greenwich." whereas his true place of abode was Queen's Square, Blooms- bury : held, an inaccurate description which the revising barrister had power to correct : Ibid. The voter was described as of " The Grove, Neasdon." It was shewn th.a " Neasdon " was not a street, lane, or like place, and that the property was not situate in any street, lane, or like place, but was known by the above name : held, a sufficient description : Ibid. So " Poplar Grove, Didsbury,' with- out stating where Didsbury was situated : Gddxbij v. War- burton, 7 M. it Gr. 11. The object is to give reasonable information where the party is to be found : Ibid. " House and shop. High street " is sufficient. Daniel v. Camplin, 7 M. A Gr. 107. So " Owner, Yate street " without further dos'jription : Tit' Lincoln (Ber.ston's ca-'^e), 2 App. R. 8'24:. " I'art of a house " is a good description of the nature of the qualification : Judxon v. Luckett, 2 C. B. 197. The property occupied by the voter consisted of a farm-house and some land at some distance from the farm in the same town- ship. The farm was known by no particular name, but the whole property v»^as entered opposite the voter's name as " Brock lane and elsewhere in Thornton : " Held, sufficient: liirkH V. Allison, {Dixon.s Case), 13 C. B. N. S. 21. Ambig- uity in the description of the qualification as "Leasehold, house and garden," will not invalidate : Jonea v. Jones, L. R. 4 C. P. 422. If a person be duly assessed for a named property on the Roll, even although there may be a clerical error in describing the property on the Voters' List, or in prroueously setting down another property on the Voters' List, if no question or difficulty arise at the poll as to : la f r 18 MANUAI ON VOTERS LISTS. [K.S.O. c. 9. I' other premises ;"' and in the case of the person or a w age -earn - Landhoid- being a [landholder'sj son {u) wat'e- ^'^'^ er (?") ! within the meaning of 71ie Election Act, earner. ^^^^ ,^^^y ^^^ amending the same, the clerk shall w i !^ 1.1:1: nil ';i:t r i taking the oath, the vote will not be struck off : Brockville, 7 C'sm. L. J. 221. The provisions of the law as to how voters are to be entered on the Voters' List in respect to their pro- perty are directory : Prescott, H. E. C. 780. Mistakes in copying the Voters' List should not deprive legally qualified voters of their votes : North Victoria, H. E. C. 584. See further, note (/c) p. 9. («) In regard to the " Son's" franchise, the Clerk in pre- paring the several parts of the voters' list must notice the difference between those qualified to vote at Legislative, as distinct from Municipal, elections. " Occupant's sons," if so entered on the Assessment Roll, have no right to vote at either " Landholders sons," may be divided into three classos : — (1) Sons of owners of farms. (2) Sons of owners of other real property ; and (.3) Sons of tenants of real property. There is no assessable value of the father's farm required in the case of the first class, to qualify them to vote at Legislative elections ; but to qualify them to vote at Munici- pal elections the father's farm must be assessed at such a value, as, if divided between father and sons, would give $100 qualification to each. The other two classes of " sons" are qualified to voto at Legislative Elections, if the father's pro- perty is assessed at f 100 in cities and towns, or $200 in villages and townships, as stated in the table appended to note (/) p. 8; but they have no right to vote at Municipal Elections. {v) See the distinction in the " income " qualifications of voters at Legislative and Municipal elections, in tlie table, note (/)p. 8. The "income" qualification is not uniform for both Legislative and Municipal electors. "Income voters" must be assessed for income $2r)0 for Legislative Elections, or $400 for Municii^al Elections. " Wage-earner voters" must S. 2, SUD-8. 8.J MANUAL ON VOTERS LISTS. 19 also, in the proper column of the voters' list, state that fact and the place at which the voter resides in the municipality {w). HS) Where a ward of any municipality is di- where vo- • iT-. ii- 1 T • • / \ I'i. ter assessed vided mto pollmg sub-aivisions(a;)ana it appears lu several by the assessment roll that any person is assess- Ifons o/ ed in each of two or more such polling sub-di- same ward, visions in tho ward for property, sufficient to entitle him to vote, (//) the clerk shall enter his name on the list of voters in one such sub-omyone division only, and shall, as required by the pre- name on ceding sub-section, insert opposite his name the*^^^^^^' m-\i be entered on the Assessment Roll, but are not to be assessed for taxable income ; and they must have earned |250 during the year. (w) Prior to the amendment of 188(3, income voters were only qualified to vote if resident in the local municipality in which they were assessed ; now they may vote if resident within the electoral district. See 49 Vic. cap. 3. (O.) (.r) This clause is new, and it may be referred to as indicating the intention of the Act, to recognize the ward divisions of cities and towns in the preparation of the voters' lists, as they must be for the purpose of voting at Municipal Elections. The clauses will some further legis- lative amendments to make them harmonious with the separate franchises for Legislative and Municipal Elections. ((/) " Entitle him to vote." To give full effect to these words the Clerk should read the clause in connection with that part of note (;•) p. 13, which refers to only one entry on the list for Legislative Elections, and multiple entries on the ward lists for Municipal Elections. The values of separate properties may be added together to give a qualifi- cation : Wood V. Hopper, 1 C. P. D. 192. See further, note [h], p. 20. i'^ •20 MANUAL ON VOTERS LISTS. [r.s.o. additional words " and other premises ;" and where, within the knowledge of the clerk, siicli person resides in one of such polUng sub-divis- ions, liis name shall be entered as aforesaid in the list of voters for that polling sub-divis- ion (^)j . whenino- (9) (a) Wherever it appears by the assessment lyhi^JiTe roll that any person is assessed for property within the mnnici .. y sufficient to entitle him to vote {h) but • • lies partly within the limits of one of such sub-divisions and partly within another c- • others, ;:be clerk shall enter his name on the list uf voters '.n Lonej of the sub-divisions [only] in which such property is How noted, situate, with the following words added: [" Partly qualified in sub- division No. ."] sub-ilivis ion niul partly in unotlior. i « I (z) This gives a Clerk the right to add to the Voters' List an entry which may not be on the Assessment Roll, of the voter's residence, and which affects uis right to vote at Lejiis- lative Elections. A landholder's son, when required at an election, must swear that ho has resided on the father's or mother's, grandfather's, or stepfather's farm for twelve months prior to the date of the Assessor's return of the Assessment Roll, and that he is still a resident of the Electoral District. Income voters, when required at the elec- tion, must swear tliat at the date of the final revision of the roll, they were, and thenceforward have been continuously, and still are, residods of the Electoral District in which they are assessed and vote. (a) This was sub-section 8 of the original Act. (/;) Where a person " is assessed within a municipality," under this sub- section, or is assessed in each of two or more polling sub-divisions in the ward, under sub-section 8, for a number of small lots, he may have the total assess- H, 2, 8tJn-s. 10. J MANUAL ON VOTERS LISTS. 21 (10) Tf the qualilication is in respect of ■taxa- income. l)lo] iiicomo, the clerk sliaU, in the proper col- umn of the voters' Hst, state that fact and the ])hice at which the voter resides in the munici- Hesiciouce pahty {(•). (11) An assessment roll shall he understood wiion.ip- to be Ihially revised and corrected (/?)> "^vhen itrou'is*^" has been so revised and corrected by the Court (■"J^,y/^'-" of Eevision for the the municipality, or by the i I mlity," two or ction 8, iiieiit of all such lots added together, and if the total asst smcnt is " sufficient to entitle him to vote," his name is to be entered on tlie list of voters. But such person is not to vote at more than one polling place under a pen; Uy of "?100 : 11. S. O. cap. 10, sec. 8G, A voter voted at polling sub-division 5, where by the Assessment Roll the property on which he voted was situated. His name v/as not entered on tlie Voters' List for No. o, but for No. 4 : Held, that his votj was good, and he should not be disfranchised because a mistake v.'as made : UrochvUle, H. E. C. 121). (c) See note (z), p. 20. (V/| This provision was lirst enacted in 1853, (10 Vic. cap. Ijo, sec. 11), but was re])caled in 18.55 by 18 Vic. cap. 87. It was re-enacted in 1858 by 22 Vic. cap. 82, with the addi- tion that the decision of the County Judge on any cases decided by him under the Assessment Act should be final and binding on Legislation Committees. In the consolida- tion of the statutes, this latter provision was altei'ed so as to make the Assessment Roll, when revised and corrected by the Court of Revision or the County Judge, final and binding on Legislati ensure pubHcity for tlie lists, so that all electors may examine them and t'lke steps to ensure a proper revision. tii^ 28 MANUAL ON VOTEI!S' LISTS. [r.S.O. c.i). Reeve. {(l) The EeevG of the Municipality. 5. [As amended by 4S Vic. rap. 3, section 9.] ^, , ^ U])on each of the copies so L3nt to each per- Clerk to ^ i n i • i •,, ' i' , certifyas SOU shall be a printed or ^v^tten certincate matters"on (Fomi 2) ovei* the name of the Clerk (n) stating onist.^*'' that such list is a correct list of all persons ap- pearing by the last revised assessment Eoll of the municipality to be entitled to vote at elec- {n) One S., tho Clerk of a Municipality, duly prepared the oJijhabetical lists, had them printed with the proper ccrci- ficate over his name, and ready for transmission at a date mentioned in the printed certificate. Before that date arrived, he died, and a new Clerk was appointed, who, find- ing the lists pi'epared and i)rinted, posted one copy in his oflice, and transmitted the copies to the official persons men- tioned in the Act. Complaints were lodged within the pre- scribed time, but objection was made that the County Judge had no jurisdiction owing to the notices not having been signed or given by the new Clerk. Tlie County Judge over- ruled the objection ; and, on an application for a writ of prohibition : held, that the provisions respecting the duties of the Clerk, were directory, and that as the object of the statute was fulfilled to all intents and purposes, the lists were properly before tho County Judge, and he had juris- diction to revise them : Rf Goih'rich I o^cr.s' L/s/.^', G Pr. R. 213. The object of having the Clerk's name to the lists is to authenticate them as coming from the Clerk's office : Ihid. The provision in the statute requiring the signature of the oi'n- c u's is only directory, and a list nut so signed is not invalid : Mori](i)i V. Pcrrij, 17 C. B. ;j;}4. The sending of the lists to the persons and officials named is di)'ectory only, and any negligent or wilful withholding oi such lists, or a false certi- ficate as to such sending, will not effect the legal revision or authentication of such lists : lie h'Oriijhud Voters' Lists, {) Pr. 11. i'25. '■$ \ \ SEC b. MANUAL ON VOTERS LISTS. 29 red th e • corci- a date ;t date o, find- in his is men- le pre- 'ud<;e been over- ■it of uties f the lists uris- r. R. is to Ihid. ecifri- alid : ts to any ^erti- n 01' ■M iioi;s for members of the Legislative Assembly, 'and at municipal elections in said municipality] ; and further, calling upon all electors to examine the said list, and, if any omissions or other er- rors are perceived therein, to take immediate Droceedings to have the said errors corrected iiccording to law {o). i*» The Sheriff shall immediately upon the shenfT, receipt of his copies cause one of them to be iSio?' ^^^'' posted up in a conspicuous place in the Court j;\';*[',',^^'.. House ; the Clerk of the Peace, upon receipt of "la'^tei to his copies, shall cause one of them to be jiosted a copy. in a conspicuous place in his office ; every Pub- lic or Separate School Head Master or Mistress shall in like manner post up one of his or her copies on the door of tlie school-house ; and every Postmaster shall post up one of his copies in liis p 'st-oftice (?)). m (o) Where a statute provides that a thin,*,' is to be done at a certain time and in a certain way, the statute ought to be slrictly followed. The notice here provided for, is to warn tiie electors interested that the lists are posted, and that the litne within which complaints are lo be made, can be ascer- t duel either at the Clerk's office, or from the nr«tice in the njwspaper, stating the date of the first posting up of the list in the Clerk's office. ip] The English Registration Act (fi Vic. cap. 18, sec. 2;}) requires the notices to be affixed in some conspicuous situa- tion on the outer door or outer wall, near the door of every church, public chapel, and town hall, and (sec. 24) to con- tinue posted thereon for at least two consecutive Sundays. In case the notice should be destroyed or mutilated, it ahould be renewed as soon as conveniently may be, by affix- ing ;in ..ther in its place : Itojurn on Electiunx, loO. > S| 'T ''H 80 ill MANUAL ON VOTERS LISTS. [R.S.O. c. 9. him Clerk to 7. The Clerk shall {q) also forthwith (r) cause Eotice'of to be inserted in some newspaper published in ?ngui3°by ^^® municipality, or in case no newspaper is published in the municipality, then in some newspaper published in the municipality next thereto, or in the County Town, a notice (Form 3), signed by him, which shall state that he has delivered or transmitted the copies of said list as directed by this Act', and shall also mention the date of the first posting up of said list in his office (s). One insertion of such notice shall be sufficient. m m =1 lii (q) The Interpretation Act, R. S. O. cap. 1, sub-sec. 8, provides that in every Act of the Legislature of Ontario, " the word ' shall,' shall be construed as imperative, and the word ' may,' as permissive." Statutes which direct a public officer to do certain acts, within a limited time are con- strued as imperative : Hunt v. Ilihbs, 5 H. & N. 126. " It is of enormous importance that these things should be done in ohe way the Legislature directs, otherwise there would be continual questions and disputes raised by certain classes of persons, who acfe in such a way as to render it very difficult to administer the law :" Per Martin, B. Ibid. (r) The terms "forthwith" and "immediately" should always receive a reasonable construction. They should, in general, be construed to mean as soon as can reasonably be done: lieyina v. Robinson, i F. & D. 391. T.'iey mean a reasonable time : Doe v. Sutton, 9 C. & P. 709. When no time is expressly mentioned for the performance of an Act, the law considers it shall take place within a reasonable time : Greaves v. Ashlin, 8 Camp. 426 ; Kllis v. Thompson, 3 M. & W. 445. A question of reasonable time for the per- formance of an Act, is a question of fact and not of law : Startup V. Macilonahl, 2 M. & Gr. 395. {») This notice is perhaps of as much importance as the printing and distribution of the Voters' Lists, for it is the s. 8, SCB-s. l.j MANUAL ON VOTERS' LISTS. 31 H. [As amended by 48 Vic. cap. o, section 4-] (1) The said list of voters shall be subject Revision of to revision by the County Judge {t), at the only public notification of the date from which the right of appeal commences to run. The neglect of the Clerk to give this notice may deprive the pai'ties concerned of their right to appeal against the lists. Where in cases of appeals to the Court of Revision, the Clerk was required by the statute to serve notices of appeals " at least six days before the sitting of the Court," which he neglected to do, and the Court of Revision refused to hear the appeals ; a mandamus to the Court of Revision to compel them to hear and deter- mine the appeals was refused : Eegina v. Court of lievision of Comically 2.5 Q. B. 286. The time for appealing against the Voters' List commences to run from the date of posting the lists in the Clerk's office, not from the date of his sending copies of the lists to the persons and officials named in the Act ; and the negligent or wilful withholding of such lists from the persons and officials named, or a false certifi- cate as to such sending, will not affect the legal revision of such lists, if such lists had been duly posted : lie UOriginal Voters' Lists, U Pr. R. 425. m 1 ;'l I ':!i 'I (t) It is essential to the validity of an election, that the parties named on the Voters' Lists, and voting at the elec- tion, should possess- the proper Electoral Franchise, in the Electoral Districts concerned ; and that result can only be arrived at by a careful and exhaustive examination of the Voters' List, after it has been published by the Clerk under this Act. Every facility is provided for obtaining printed copies of the proposed list, and sufficient time is given (30 days), after the posting of the lists, for a careful investiga- tion of every vote which may be gained, or lost, by entry on, or omission from, the list, preparatory to the election contest. And this examination is now all the more impor- tant, and will demand so much more care and investigation, for the purposes of claim or objection, as the Voters' Lists to I ' 82 MANUAL o:> VOTERS LISTS. R.S.O. c. 9. instance of any voter (u) or person entitled to be a voter (v) iu the municipality for \Yhich the list is made, or in the electoral district in whicli the municipality is situate (;r)> on the m \m be used at elections hercaftev are, by the " Voters' Lists Fi- nality Act" of 1878, to be " final and conclnsive evidence of the right of all persons named therein to vote at any elec- tion," except as to disqualifications arisinfj snb&cqiient to the revision by the County Judge, or under sees. 4, 5, and 6 of the Election Act. {») " Voter." In the English Corrupt Practices Act of 1854 the word " voter" is defined to mean " any person who has, or claims to have a right to vote in the election of a member to serve in Parliament." (v) " A person entitled to be a voter." The County Judge has the right to examine and decide whether the person making complaint of errors and omissions in the list of voters is "a voter or person entitled to be a voter," although such complainant may appear on the Roll as duly qualified, and his vote is not appealed against : I{e F, and f>lso of the special powers to amend the lists vested in the County Judge by 12 Vic. cap. '6, sees. 2 and 3, post. A statement of the grounds of complaint is given in the Appendix, Form IG. (//) The first ground of complaint — the 2^ersons omitted from the list — may include the following cases : (1) Owners, or Freeholders, Tenants, Householders or Oc- cupants, (Municipal Elections), Householders, (Legislative Election), Farmers' Sons, and Landholders' Sons, who were quahlied as to real property at the date of the revision of the Assessment Roll, but whose names were omitted by the Clerk in preparing the Voters' Licts, or were not entered on the Assessment Roll. (2) Persons (as above) omitted from the Voters' List en- titled to be assessed to a sufficient amount to give the Legis- lative (see table note (/) p. 8 ante,) or Municipal qualili- cn.tion ; (see table, note (/) p. 8 ante.) [ii) Persons (as above) who had acquired their interest in tlie real property before the date of the final revision of the Rdll; (see notes (e) and (/<) p. 3S). (1) Farmers' or Landholders' sons who had resided on the farm, or other real property, of their father, etc., for twelve months prior to the return of the Assessment Roll, and who are entitled to vote at Legislative and Muni- cipal Elections ; (see note (/) p. 8 ante.) (5) Income voters omitted from the Voters' Lists, but whose names are entered, or entitled to be entered on the Assessment Roll, and are assessed thereby for income over §100 (Municipal Elections) or |2i")0 (Legislative Elections.) (fl) Wage-earners whose names are entered on the Assess- ment Roll or are entitled to be entered on the Voters' Lists (Legislative Elections.) 3 33 ■■;(, ':| ^'^ « V, 34 :.■ 4 ill MANUAL ON VOTERS LISTS. [R.S.O. C. 9, (^), or of names of persons being inserted on the list who are not entitled to vote, {a) and upon (7) Householders who are sole tenants and occupants of dwelling-houses (Legislative Elections ) (8) Any person whose disqualification under the Election Act (sec, 4) was removed prior to the date of the final revis- ion of the roll, or of the notice of complaint. (z) The second ground of complaint of 2)erKons wronghj xlatcd, — will include misnomers in name, or misdescriptions of title or locality of property, or of the suh-division where such property is situated. Misnomers are questions of fact as whether a person, place or thing is so denominated as to be commonly understood : Ilinton v. Hinton, 7 M. ct Gr. 103. Where the surnames were correct, although the Chris- tian names were erroneous : Held, votes good : Ile()inu e.v rel. Chnmhers v. Allison, 1 Can. L. J. 2i-4. Thus Vilson Wilson for William Wilson, Simond Faulkner for Alexander Faulk- ner. Thomas Sanderson was held idem sonans with Thomas Anderson, so as to entitle the person bearing the latter name to vote : IbJd. Nathl. Beggs sulficiently identifies Nathaniel Beggs : Carroll v. Begun, 15 Ir. C. L. 370. The abbrevia- tions Frank for Fi'ancis, Fred for Frederick, Harry for Henry, Joe for Joseph, everybody of ordinai-y common sense would understand : Per Lopes, J., in Moorehoiise v. Linney, 15 Q. B. D. 279. See also Oldham Election [Br ami's Case), 1 O. & H. 152 {HorsfulVs Case,) Ibid. 153. (a) The third grouud of complaint, j;ersoHS 7iot entitled to vote, will include the following classes of cases : — (1) Persons who have died. (Form (>.) (2) Persons under the age of twenty-one years ; subject, however, to the provisions of sub-sec. 1. See note ( j ) p. 40. (3) Persons not subjects of Her Majesty by birth or naturalization. (4) Persons (as above) who had lost or parted with their interest in the assessed property prior to the date of the final revision of the Assessment Roll. See note (e,) p. 22. their t)f the 22. s. 8, scn-s. 1.1 MANUAL ON VOTERS* LISTS. such revision (h) the assessment roll shall not be 35 'ii (5) Farmers' or Landholders' sons whose father or mother, etc., was not or had ceased to be the owner, or tenant, and actual occupant of the assessed property, prior to the final revision of the Assessment Roll. (0) Farmers' or Landholders' sons, who had not resided ou the farm, or other real property, of their father, or mother, etc., for twelve months prior to the return of the As- sessment Roll ; (1st May or such other date as the Assessor has actually returned the Roll to the Clerk.) (7) Persons whose property has been assessed too hi^h, for the purpose of giving to them, or, with them, to any joint owners, tenants, or occupants, farmers' or landholders' sons, the statutory qualification. (8) Persons owning or occupying, jointly with others, the assessed property (whether the names of such others do or do not appear on the Assessment Roll), and by reason there- of, the property is not rated at an amount sufficient, if equally divided between all the parties so jointly interested, to give the statutory qualification to each. (!)) Income voters, who are not assessed, or who were not, at the date of the final revision of the roll, residents of the Electoral District. (10) Income voters or wage-earners, who were not, at the date of the final revision of the roll, and for twelve months previously, in receipt of an income from some trade, oflice, or profession of the statutory amount. .^ (11) Persons disqualified by statute (see notes (m) p. 10, (o) p. 11, (w) p. 12, and (/) p. 38.) (h) " Upon such revision, &c." These words, taken in con- nection with section 22, give the County Judge the power to assess " any person not assessed," and to increase the assess- ment of " any person not sufiiciently assessed," and to make such persons liable for the taxes on such assessments. The County Judge has also the power to reduce the assessed value '1 ■■] h ■rl w| i . i i il< W ^'f! K if ! i' til ll I' I I 86 MANUAL ON VOTERS LISTS. [R.S.O. c. 9, conclusive evidence (c) in regard to any particular, whether the matter on which the right to vote depends had or had not been brought before the Court of Revision, or had or had not been determined by that court ; ^and upon such of property which has been assessed too high, for the purposes of his decision " in rej^ardtothe right of any person to vote ;" but such reduction of the assessment does not carry with it a reduction of the liabihty to taxation. " For example, a person has procured his property to be assessed above its value in order to enable him to vote. The Judge decides that the true value is under the amount which qualifies. The decision is final as disqualifying the would-be voter, but he remains liable to pay taxes on the full amount on the roll." Per Patterson, J. A., Lincoln (Burroicman's Case), 2 App. K. 316. (c) " Shall not be conclusive evidence," infers that the assessment roll is ^^nwa /ac/e evidence. The process of as- sessment is in the nature of a judicial proceeding : Per Strong, T., in Nicholls v. CnmmiiKj, 1 S. C. R. 427. Where the law presumes the affirmative of any fact, the negative of such fact must be proved by the party averring such negative : Williams v. East India Company, 3 East 192. Dis- putable presumptions of law may always be overcome by opposing proof. The law defines the nature and amount of the evidence which is sufficient to establish a prima facie case, and to throw the burthen of proof on the other party ; and if no opposing evidence is offered, the jury are bound to find in favour of the presumption : 1 Taylor on Evidence, 115. If a disputable presumption of law is in favour of an affirmative allegation, the party who supports the negative must call witnesses to rebut the presumption : Ibid, 335. The name of a claimant appearing on the list of voters returned to the Clerk of the Peace, and on the list for poor rates, establishes a prima facie case to be registered as a voter : Byrne's Case, 6 Ir. C. L. 412. The name of the « m S. 8, SCB-S. 1.] MANUAL ON VOTERS LISTS. 37 revision any person who is a wage-earner within the meaning of The Election Act, or of an}' Act amending the same, shall not he dis- entitled to have his name entered on said list, either hy reason of his having omitted to make, sign or deliver any statement required by the provisions of The Assessment Act to be so ^^^ ^J^<^- ^^i' made, signed or delivered by him, or by reason of his name not having been entered on the assessment roll as such wage-earner (r^] ; and the decision of the judge under this Act, in regard to the right of any person to vote, shall be final so far as regards such person (c). voter being on the poll book is prima facie evidence of his right to vote. The party attacking the vote may either call the voter, or offer any other evidence on the subject : Stor- inoiit, H. E. C. 21. Prima facie evidence of qualification throws the onus on the objector to meet the same by proof of liisqualilication : Moore's Case, 7 Ir. Jur. 59. i li •I ((/) This gives "wage-earners" a second opportunity of having their names entered as voters on the Voters' List. If the County Judge finds the claim sustained he m.ay enter the name on the Voters' List, and on the Supplementary Assess- ment Roll ; for although the power of the County Judge under sec. 22 post, would appear to apply to persons liable to pay taxes, the right to make all necessary amendments to the Asserssment Roll so as to confer the right to vote, is implied. {ij " I do not read those words, 'and the decision of the Jadge under this Act in regard to the right of any i)ciauii to vote shall be final so far as regards such person,' as import- ing more than that the judgment as to the assessed pi-operty is final in its effect on the right to vote." Per Patterson, J. A. Lincoln (Borrowman's Case), 2 App. R. 31G. •I it il r 38 MANUAL ON VOTERS LISTS. [R.S.O. C. 9, Appeal in (2) A complaint or appeal (Form 4) may be sons diH-^' made on the ground of any person whose name unae?^*^ is entered on the list being one of those who are }{. s.o. disqualified or incompetent to vote under llie cup. 10 n>, .- A i / 4^\ L Inch on Act (J). Applica- tions by persons who have acquired property since as- sessment. (3) If, before the final revision and correc- tion of the assessment roll, any person named as a voter in the said list of voters has died or, having parted with the property (ff) in respect of (/) This may also be within the third ground of com- plaint referred to in note («), p. 34 aide, and will include all the official persons disqualified as Legislative electors under the Election Act, sec. 4 ; and also the following per- sons disqualified for corrupt practices ; (1) Candidates found guilty of corrupt practices by the report of the Election Judge, (R. S. O. cap. 10, sec. 161) ; (2) Electors proved on the trial of any election petition, to have been bribed (Ibid. sec. 1(33) ; (3) Persons, other than candidates, found guilty of any corrupt practice in any proceeding in which, after notice of the charge, they have had an opportunity of being heard (Ibid. sec. 104). The report of the Election Judge, that a voter was bribed, does not disqualify him : Bewdlei/, 1 O. & H. 11'), "The Act speaks of 'an opportunity of being heard,' and I think that does not merely mean that kind of opportunity which a witness has, who is called up, upon the spur of the moment, and who is subject to cross-exam- ination ; but it means an opportunity of being heard, when he has had fair warning of the charge, and is asked to meet it, and be heard by himself or his counsel :" Per Blackburn, J., Ibid. Before a voter can be found guilty of corrupt practices he must have an opportunity of being heard : South Huron, 29 C. P. 301 ; s. p. Duffcrin, H. E. C. 529. See also Grant v. Pagham, 3 C. P. D. 80. (g) This amendment first appeared on the Voters' List of 1879, 42 Vic. cap. 3, sec 4. The original sub-sec. of R. S. O. \.\ S. 8, 8CB-S. 4. J MANUAL ON VOTERS LISTS. 30 wliicli his name was entered in the voters' list, has, within the meaning of section 7 of T}ie FAection Act, ceased to be a resident of the electoral district, the person who, at the time of such linal revision and correction, was in pos- session of the said property shall, if otherwise qualilied to vote, be entitled to apply to the judge to be entered on the said list instead of the person lirst named in this section (h) ; and the proceedings to be taken in any such case shall be the same as m cases of appeals under this Act {i). (4) Any person who is rated, or entered, or liable to be rated, or entered on the assessment rovsons roll, either for real property or income of the S Srwith^ in (JO (lays . of revision. cap. 9, gave to the person who had parted with the property the right to apply to be entered on the Voters' List for other property or income, which he might do under the next sub- sec. (4). (/() This gives a personal right of appeal to the person who becomes interested in the real property since the assess- ment, and who was in possession at the date of the final re- vision of the Roll. The change can only be made on the application of the party in possession : Per Moss, C. J. A. in Case No. 7, Appendix. The application should be for the two-fold purpose of striking out the name of the former own- er, and of entering the name of the applicant in place thereof. (/) The procedure presci-ibed by sec. 9, and form 5, for making any complaint of any error or omission in the list, is a notice to the clerk or head of the municipality ; and the proceedings thereupon are the same as in the case of an appeal to the County Judge from the Municipal Court of Revision. See R. S. O., cap. 180, sees. 59-66. •^li T- .,rrp^ 40 MANUAL ON VOTERS LIhTS. [R.S.O. c. 1), m Mi' \ l!^ amount requisite to entitle him to vote, or- as a lan(]liol(Ier'H son or a wage-earner, within the meaning of 71ir AssrsHincnf Act or of The Elec- tion Act or of any Aet amenaing the same (./), and who will be of the age of twenty-ono years (A) at any time within sixty days from the final revision and correction of the assess- nient roll, shall be entitled to apply (/) to the judge to liave his name entered upon the voters' rrt III ■ H HI ij V (j ) This enables one who is near, or just over, the a{,'e of 21 years, to apply to be entered on the Assessment Roll and Voters' List ; and the County JudfJe may so enter the name, if he luids the applicant lej,'ally qualified. See notes ({}) and (/() p. G and (a) p. M. If on an application to strike off the name of a minor from the Voters' List, the evidence brings the case within the above clause, the County Judge should retain the name under 12 Vic. cap. 3, sec. 3. Where a voter is objected to as a minor, and it appears that he became of age previous to the revision of tlie lists, his name will not be struck off : PoivcU v. BraiUcj, 18 C. B., 1G5. (A") The interpretation given to section 11 of the Voters' List Act of 187-1 (sec. 22 of this Act), was that the County Judge had no power to insert on the Voters' List, the name of any person claiming to be qualified as an inconae voter, unless such person had been entered upon, and assesried for income, by the last revised Assessment Roll : Lincoln (Dor- rmciiuDi'.f Vase), 2 Ap]i. 11. 31(5. The above clause alters that interpretation, and enables persons not entered on the Assessment Roll but claiming the right to vote in respect of income, to apply to be entei'ed on the Supplementary Assessment Roll and Voters' List. (/) There is no form prescribed by the Act, but the form 5(t may be found appropriate. s. <). SUD-S. 1.] MANUAL ON VOTERS' LISTS. 41 list, or upon the assessinont roll and the vokrs' list, as the case may require (/«)• (5) Anv such landholder's son and anv wage- Appiica- • * . t ioii l)V turner entitled to he assessed (») or entered in hmdhoia- the assessment roll of any municii)ality under I'^j'^i^j^gg. Tlic AHScssmcnf Act, or anv Act amendin{:]j tln^ ^''"•i"®'"**- same, shall, in all respects an. (1) Any voter or person entitled to he a Proceed- votor (p) making any complaint of any error or I-ouuXiut of errors in the list. (m) '11: . right to apply to be entered on tlie Assessment Kdll, as well as Voters' List, infers a power in the County Ju(l,t,'e to enter the name on the Supplementary Assessment IIdH as well as on the Voters' List, if the claim is sustained by proper evidence. See note (■) "Within thirty days after the Clerk oi the munici- pality has posted up the said list in his office." The day of the posting up of the list is not included in reckoning the thirty days, as the meaning of the sentence is " thirty days after the day of posting up." No exception is made for Sun- days or other statutory holidays in the computation of time under this Act, as is made in the Election Act (R. S. O. cap. 10, sec. 190) ; Controvertett FJectioiis Act (R. S. O. cap. 11, sec. 106) ; Comiiioii Laic rrocedure Act (R. S. O. cap. 50, sec. 07), or Ontario Judicature Act, 41 \^ic, cap. 5, rule 457. Nor is any extension of time allowed where the last of the thirty days falls on a Sunday or other statutory holiday. At common if nunici- day of n« the ty days )r Snn- of time O. cap. 11, sec. 07), or is any ty days iimnoii s. 0, srn-s. 1.] MANUAL ON VOTERS* LISTS. bas posted up the said list in bis office, give law Sunday was included in the calculation of time : iL '(•//;(•>' V. West Derby, 2 C. B. 72. Where, under a statute, the last day for giving notices of appeals from the list of voters happened so be on a Sunday : Held, that such notices might legally be given on that day ; the service on Sunday is not void by statute or common law: Ibid. A notice mailed so as to be received on Sunday is well served : Col v ill v. Leiciii, Ibid. (10. Where notice of an appeal from a conviction was required to be served " within six days after " the convic- tion, the conviction being on Monday, 2nd May, a notice of appeal served on Monday, 9th May, was too late : lien. "^'• Justices of Middlesex, 7 Jur. 39f5. Where the limit of time under the Statute of Limitations expired on a Sunday, and tlie writ was not issued until the Monday : Held, that the right of action was barred by the statute : Morris v. Ixichards, 45 L. T. N. S. 210. Nomination papers were required to be sent in after the l-lth and before the 2Gth March, or if such day was a Sunday, then the day following : Held, that the delivery of a nomination paper on Sunday, 2(jth Mai ;h, might be treated as a delivery on the Monday following . Ilefj. V. Por Law Commissioners, 1 Jur. N. S. 251 ; see also 4 E. it B. ;J14. " The reason of Sunday not being a day of business is the decent observance of the Sabbath:" Per Eyre. C. J., in Mesure v. Britten, 2 H. Bl. 017. A notice to quit given on Sunday is valid : Saur/ster v. A'o//, 10 L. T. N. S. 157. By R. S. O. cap. 119, chattel mortgages are to be registered within five days after execution. A chattel mort- gage executed on the 12th was registered on the 18th, the 17th being Sunday ; Held, that Sunday counted as one of the live days, and that the registration was too late : Mc- Lemi V, Pinkerton, 7 App. R. 490. It is irregular to make an aliidavit of debt, or to issue a writ on Sunday : Hall v. lU-iisli, H. it J. Dig. ;i()H3. A writ issued on a Sunday is a nullity. Curnill V. Fonlkes, 5 D. it L. 590 ; and the date of the writ is not amendable: McKinnon v. Pmnd, 1 P. E. I. 474. Ser- vice of process on Sunday is absolutely void : T'lijlor v. 43 ■ m ; I IP H\ VC^SsM 44 MANUAL ON YOTERs' LISTS. [r.S.O. c. 9, (s) to the clerk or leave for him at his residence or rhiIU2)<^, 3 East 155. So is service of a notice to produce : Hu•) When a statute directs that a claim shall be made within a certain specified time, this right will be forfeited by au omission to assert the right within the given time : Doe dein. IVattioii v. JeJ'erson, 2 Bing. 118. "'The laws assist those who are vigilant, not those who sleep over their right.s,' is one of the maxims which we learn on our earliest atten- dance in Westminster Hall :" Per Heath, J., in Co.v v. Moryan, 2 B. & P. 412. It applies in Courts of Equity as well as in Courts of Law : Per Lord Cranworth, in Leather Cloth Company v. American Leather Cloth Company, 11 H. L. Cas. 523. And the maxim is obviously applicable whenever S.9. SUB-S. l.J :\IANUAL ON VOTERS LISTS. place of business (t), notice (Form 6) in writ- 45 w a party debars himself of a legal right or remedy, by his own iiei^ligenco or laches: Cdvndfie v. AUoiby, B. d- C. 373. The maxim also applies to a votor who has neglected to apply to correct a mistake in the overseer's list of persona (jualilied to vote: iVr Coltman, J., in Oniott.i \. Boicdler, 5 C. B. 7-1. When the Legislature has fixed the time, it would be preposterous for the Courts to countenance laches beyond the period that it had been confined by Act of Parliament : Smith V. Claij, 3 Bro. C. C. Go(i//. The complaint must ba made within the time limited : Ji'tv/. ex vcl. Telfer v. Allan, I'r. R. 211; Ecfi. ex rd. White v. lioach, 18 U. C. E. 220. (t) This allows either personal service on the Clerk, or upon a grown up person connected with his household or office. Service by post, or by registered letter, is not provided for. Tlie Imperial Act (G Vic. cap. 18, sec. 100) provided that notices should be sent by post, and that a duplicate notice stamped by the post ofiice should be evidence of a notice having been given : Held, that service made by leaving the notices at the officer's place of abode was good service, the section being entirely an enabling enactment, and not taking away any of the modes of service which were consistent with the law as it stood before the statute passed : Hicktun V. Autrobus, 2 C. B. 82 : Smith v. Ihignett, 11 C. B. N. S. 55. When the service is not personal, it may be served at the oflicer s place of abode on some grown up person connected with his household ; Mitthheryer v. Whitehead, Rob. &. Jos. Dig. 2U01. The notice must, however, be served in such a way as to come to the knowledge of the person intended to be served. Where no time is expressly mentioned for the performance of an act, the law considers it shall take place witliin a reasonable time : Ellis v. Tltuinpson, 3 M. it W. l-lo. Tliu lateness of the hour of service on the proper day does riot affect its validity. A notice served on a grown person at the residence of the proper officer at twenty minutes past eleven o'clock at night : Held, sufficient in law : rointu v. ■: i'i ' 'm 'f, H 'i ( 4 1 • ,[ i ,1 fr^ i f i I 46 MANUAL ON VOTERS' LISTS. [r.S.O. c. 9. ing {u) of bis complaint and intention to apply vi Attwood, C. B. 38. But where the Revising Barrister found as a fact that a notice left between nine and ten o'clock at night, inside the entrance door of the house, was not a reasonable notice, the Court held' it insufficient service : Ifatson V. Pitt, 5 C. B. 77. Where the notice was placed under respondent's door a short time before twelve o'clock at night, but the witness did not hear the clock strike : Held, not sufficient proof of service of the notice : 1 Stephens on Elections, 7o-l. Where a public officer receives and acts upon a notice it must be assumed, in the absence of evidence to the contrary, that he received it in proper time : Godsell V. Innoiis, 17 C. B. 2')5. ((/) There is nothing in the Act which makes a personal signature of the complainant necessary, and therefore the common law rule qui facit per aliinn facit per se applies. But the notices of complaint should be subscribed by the com- plainant or his agent : Re Simpson and the Judge of Lanark, 9 Pr. R. 358. The notice should be a completed and authoritative document, for when once validly given its prosecution ceases to be " a mere private privilege, but a matter of pablic concern." Per Osier, J., IJiid. The Imperial Act of 1843 provides that "every notice of objection shall be signed by the person object- ing ;" and it was held, under that Act, that a notice signed by another person as agent or for the objector, though in observ- ance of and by his directions, was invalid: Toms v. Cumnig, 7 M. it Gr. 88. The notice of objection need not be signed by the objector on the day it bears date, but it is sufficient if it be signed by him on any day within the period he is by law qualitied to object, and while he is qualified to give it. Therefore, a notice bearing date the l'2tli, but in fact signed on the ]8th, August, was held good : Jo)ies v. Jones, L. R. 1 C. P. 140. A notice with the date of the year left blank is bad; Beenlen v. Hockin, i C. B. 19. So a notice given in 1883, with the year written in words, but the last word " three" left out, is bad, although such notice had been pub- S. 9. SUB-S.l.J MANUAL ON VOTERS LISTS. to the judge in respect thereof ; and if the ofitice of clerk is vacant by reason of death, resigna- tion or from any other cause, such notice may 47 ■ I- HI m lished by the overseei's, and the Revisinf^ Barrister found that the claimant was not misled : Freeman v. Neicman, 12 Q. B. D. i 73. Althouf^h the claimant ought to write his si-^nature himself, nevertheless, if written by the hand of .iiiotlier pei'son, and such notice is acted upon, no third person can object to it on the ground of its not being pro- j.orly signed: Davie>i v. IIopkiii.<, :-5 C. B.N. S. 370. It is sufficient if signed with the name of the claimant in the handwriting of another person by the authority of such claimant: McS'iff'e v. Mc'L'u'rnnn, 3 Ir. Com. Law, N. S. 187 If the signature is " wholly illegible so that an ordinary person, unacquainted with the signature, could not, by perusing it with ordinary diligence and skill, arrive at any reasonable conclusion what the signature was intended to designate ;" but if guided to the entry in the register by the objector's place of abode, he might, by comparing the notice with the entry, have inferred the identity : HckU reversing the Revising Barrister, that the notice was suffi- cient, on the ground that if the object of the statute was to authenticate the document, the signature was sufficient ; and if the object was to inform the opposite party, the Re- vising Barrister had not found that it did not so notify : TrolU-y v. ]Valher {Ilalhuns C«.sy), 32 L. J. C. P. 00. Where the notice of objection was signed i)i such a way that the Clu-istian name was legible, but the surname was found not to be decipherable without recourse to the entry on the re- gister of the objector's name, or other extraneous assist- ance : Hehl, that whether the object of the statute in requir- ing a signature was to authenticate the document, or to give information to the objectee and Revising Barrister, the signature was sufficient : Trotier v. Walker, 13 C. B. N. S. 30. The usual signatui-e of the objector was engraved on a stamp, and this stamp was impressed on the notice of objections : Hehl, sufficient: Benticttw Brumtitt, L. R. Z C. mm ii 1 \ ii ^¥i \:\ i 48 :\rANUAL ON VOTERS LISTS. [R.S.O. c. 0, be given in like manner to the head of the council of the municipality (v) ; and the pro- thereafter by the clerk (w), judge ceedings ■L m. i i ii h; P. 28. It is not necessary that a separate notice of objection should be given in respect of each voter objected to in the list ; all the names of the votei's objected to may be included in a schedule to one notice: Smith v. Ilolloway, L.R. 1 C. P. 145. Where in the body of the notice, the objector, instead of usin^f the pronoun "your,"' inserted his surname before his Chris- tian name, but it was found to be " commonly understood :" Held, sufticient : Farce v. Floiid, 15 C.B. N. S. 543. A voter sent in his claim signed by his initials and surname ; it was rejected because of the signature by initials : Held, that the information was sufticient, and that a mandamus should issue to have the name inserted on the list: liej. y. Hartle- pool, 15 Jur. 1158. The validity of the notice can b? raised before the County Judge, although it has been received and entered on the list of appeals by the Clerk: lie Simpnonandlhe Jndfje of Lanark, 9 Pr. R. 858. Technical objections as to matters of form before a County Judge on the revision of tlie Voters' Lists ought not to prevail where no one can be misled or injured by the alleged errors : Per Richards, C. J., in Re McCullocli, and the Judcje of Leeda and Grenville, 35 U. C. Q. B. 451. (r) The service of the notice on the head of the council may be made " in like manner" as the service on the Clerk. See preceding note (.s.) {w) The Clerk after receiving notice from the complain- ant, is to proceed according to th"! procedure prescribed by R. S. O. cap. 180, respecting appeals from the Court of Revision., After the Judge notifies the Clerk (Form 8), of the day for the hearing of appeals, the Clerk, at least six days before the sitting of the Court, is to (1) give notice to each person complained against {R. S. O. cap. 180, sec. 59, sub- sec. 4), by causing the notice to be left at the person's resi- 9, tlic pvo- lulge jection in the Lidecl in P. Uo. )f usin^ ; Chris - stood :" A voter ; it was that the 1 should . Hartle- o? raised ived and \n(ind The Ills as to ,n of tlie i)e milled in Re [V. C. Q. council he Clerk. ^mplain- Iribed by :;ourt of |rni 8), of ; six days i to each 59, sub- jn's resi- s, i), SC15-S. 1.] MANUAL ON YOTERS' LISTS. (.r), and parties iy) respectively, and the respec- dunce or place of business : {Ihid. sec. .50, sub-sec. 10) ; or if rlie person is not Icnown, then to ba left with some t,'rown pLirson resident at the assessed premises ; or if the person is not resident in the Municipality, tlien to be addressed to such person through the post ortice : {Ibid, sub-sec. 11). (2) Post a notice in his offi'je, or in the Townhall (Form 9), containing the names of the complainant and parties com- plained against, with a brief statemc.it of the grounds of complaint, and the date at wliich the Judge will hear i;he same: (Il>id. sec. oK, sub-sec. o). (3) Act as Clerk of the Court: (////) Where such person has a known residence or place of business within said munici- was f^iven to displace his right, and the Kevising Barrister so ruled. The vote was retained : lle.hl, reversing the Revi- sing Barrister, that the resjwndent was bound to give evidence when called. Peterson v. lUilfour, 10 Ir. C. L. 553. An objector has a right by cross-examination, or by evidence, to question the validity of a person's right to be registered ; and a claimant declining to submit to examination was properly rejected: IIoe}fs Cm^e, 5 Ir. C. L. 02. Where the claimant was sworn and examined touching his right, but refused to answer, on cross-examination, questions affecting the validity of his right to be registered as a voter, his claim was rejected by the Revising Barrister, and such rejection was alhrmed on appeal : IMsneifa Case, 1 Ale. Reg. Ca. 118. (j) This is substantially the same as the procedure im- ported into this Act from the Assessment Act which pro- vides, that if the person appealed against residei' within the municipality, the notice may be left at his res'dence, or place of business ; or if not known, then it may be .'eft with a grown person at the assessed premises ; or if tlie person is a non-resident, then the notice may be sent through the post office. 55 m r^ 56 MANUAL ON VOTIVE S LI SIS. JR. S. O. c. 9. 1 It '■ 1 ' n I i I ■ I pality, if a copy of such subpa?na or order is left for him with some grown person, at such residence or place of business (A) ; or (c) Where such person has no known residence or place of business within tlie muni- cipality, if a copy of such subpti'ua or order is mailed to him through the pcst- ofiicc, with the postage thereon j^re-paid, and addressed to him at the post-ofliee address contained in any -vritten affirma- tion made by him under The Asscasmoit Act, or any Act amending the same (l) ; or {k) The pursou served must be some grown up person or resident connected with the household, and not a stranger. (l) When the objector serves the notice through the post office, and the party addressed resides at a distance from tlie office to which the notice is directed, he inust shew that such notice would, in the ordinary course of post, bo deliv- ered to the party addressed in sufticiont time : Lciris v. Evans, L. 11. 10 C. P. 2U7. A notice was sent by post to the address of a voter; but there was no postal delivery of let- ters at the place, and unless by some private accidental conveyance, the voter would not receive the notice : Held, not sufficient service : Ibid. Where notices were duly posted on such a day as was sufficient for them to have reached their destination within the time required by the statute, but from some neglect in the post office they did not reach their destination until after that time: Ilehl, that the service was sufficient: Bayleij v. Nuntuich, 2 C. B. 118. So although the notice was not delivered by the post office aathorities : J'i.sl.'op v. 7/<7;w, 2 C. B. 15, " the statute enacts that it shall le ' sufiicient' if the notice shall be sent by the post free of postage, dii'ccted to the person to whom it is sent. When these conditions are cora\)lied with, such a sendin' will be sufiicient substitute for '.jiving the notice S. 10, SUR-S. 3.1 MANUAL ON VOTERS IJSTS. 57 (.7) Where such person is a landholder's son as aforesaid, if a copy of such order or subpcjena is left for him with some grown person at the residence of the landholder whose son he is (/;/). (3) If any person, whose right to be a voter is Penalty for the subject of enquiry, does not attend in obedi- temiance. once to such subpoena or order, the judge, if lie thinks lit, in the absence of satisfactorv evidence as to the ground of such non-attendance, or as to the right of such person to be a voter, may, on ihe ground of the non-attendance of such person, strike his name off the list of voters, or refuse to place his name on the list of voters, as the case may require (»), or impose a reasonable to the person objected to, or leaving it at his place of abode:" Per Tindal, C. J., Ihid. The municipal officers have no power to alter the incorrect address of a voter on the register and to substitute the true address of such voter : Xoseworthy v. Buckland in the Moor, L. K. 9 C. P. 2m. The address on the letter must be decipherable : BailUc v. Dlch- son, 7 App. K. 759. (;/i) See notes {t) p. 45, and (A) p. 5G. (h) The name of a voter was duly objected to in the notice of objections. The objector was present in Court to sustain his objection, but the voter did not attend to sup[)ort hio right to be on the register of voters when the name in its order was called ; and the Revising Barrister, in the exercise of his discretion, struck tlie name oft the list of voters : II' hi that the name could not be restored on a subsefjueut application, and there was no proof that the objector was ready with his proofs on the second hearing: lUitin v. Pil- hiitfiton, :il L. J. C. P. 55. Where a voter's name was struck otf by the Kevising Barrister owing to the non-atteiidance 58 MANUAL ON VOTERS LISTS. [U.S.O. c, 9 fine on such person accordii:,;3 to his discretion, or do both (o). Names in (4) Any number of names may be inserted in subpaiia. ^^^ subpccua or judge's order, in any case of complaint (jj). List con- firmed if 110 com- plaint within 30 I 4 11- — In case no complaint respecting such list is received by the Clerk of the Municipality (q), of such voter: Held, to be an "express decision" of the Revising Barrister : Ohlliam {Har2)er's Case) 1 O. & H. 157. (o) When the non-attendance of the person whose right to be a voter is the subject of inquiry, is the result of mere neglect, i.e., " the absence of satisfactory evidence as to the ground of such non-attendance," or as to his right to vote, then a reasonable punishment v?ould be his temporary loss of the franchise, by the omission of his name from the Voters' List for that year ; but when such non-attendance is wilful — a fact which can only be determined on proper evi- dence — the punishment may be either loss of the vote, or a reasonable fine, or both. {p) It is not necessary to issue a subpoena or order in each case. The names of all the witnesses, in all the cases, may be included in the one subposna or order. See Smith v. Hol- loivay, note (u) to sec. 9. ((7) In case the Clerk should refuse to receive complaints properly tendered to him, and should report to tl\e Judge that no person gave him, nor did he receive, any written notice of complaint, the Clerk of the Peace, or any elector may, under sec. 24, apply summarily to the County Judge to compel the Clerk to perform his duties. But if the Judge has signed the lists on the certilicate of the Clerk, he has no power to set aside his certificate of the final revision, or to re-open the lists : lie L'Oriyinal Voters' Lists, 9 Pr. E. 425. SEC. 11. i MANUAL ON VOTERS LISTS. 59 within thirty days niter (r) he has posted up the thJctSk said list in his office, the said clerk shall forth-i'asposua up tho list. (;•) The general riilo for the comjmlation of time fixed by statute is, unit there is something in the statute to the coutrar; ^ al the first day exckuled and the last day included : Hex v. Justices of Cumberland, 4 N. & M. 378. The question whether, in computing time from an act or event, the day is to be includtd or excluded, may be thus stated : where the act done from whiJi the computation is made, is one to which the party against whom the time runs is privy, the day of the act done may reasonably be included ; but where it is .ue to which he is a stranger, it ought to bo excluded : L,\:' , Carhuul, 15 Ves. 248. "Where an act ia required by a statute to be done so many days " at least" before a given event, the time must be reckoned excluding both the day of the act and that of the event : Her), v. Jus- tices of Shropshire, 8 A. & E. 18li. Similarly where the statute prescribes so many "clear days:" ]Vatson v. Enles, 23 Beav. 21*4 ; and in computing such, Sunday is excluded : He Croolis. 1 Chy. Ch. o04. " Our law rejects fractions of a day more generally than the civil law does. The effect is to render the day a sort of indivisible point, so that any act done in the con^pass of it is no more referable to any one, than to any other portion of it ; but the act and the day are co-extensive ; and therefore the act cannot properly be said to be passed until the day is passed : " Per Sir \V. Grant, M. R. lo Ves. 257. Judicial proceedings are to be considered as taking place at the earliest period of the day on which they are done : Writjht v. Mills, 4 H. A' N. 488 : s. c. Jur. N. 8. 771. Also the Royal Assent to Acts of Par- liament : Converse v. Michie, 10 U. C. C. P. 1('>7. Time appointed for the sitting of the Court is mean time where tlie Court sits, and not Greenwich time : Curtis v. Mareh, 3 H. d- N. 8()(). Where the watch of a returning oflicer was used on the lirst day to open and close the poll, and to open it on the second day witliout objection as to its correctness, the time marked by his watch may be properly taken as the il I"! ' '1 "**•• ' ■'^■ '' g gBg^gB*'*)' 60 w: :\IANUAL ON VOTERS LISTS. lR.S.O. c. 9. with (.s) apply (Form 14), either in person or hy letter, to the judge to certify (Form 15) three copies of such list as heing the revised list of voters for the Municipality ; and the Judge shall retain one of such certified copies of the list, and de- liver or transmit by post, registered, one of such certified copies to the Clerk of the Peace for the county or union of counties within which the Municipality lies (t), and one of such certified copies to the Clerk of the Municipality, to be kept by him among the records of his office (n). correct time to close the poll : Rer). ex rel. Lutz v. Hopkins, 7U. C. L. J. 1;52. (») In the temporary provisions made for the revision of the Voters' Lists of 1878, by 41 Vic. cap. 21, the limit of five days was fixed by sub-section 2 of section 5, instead of " forthwith," for the notification by the Clerk to the County Judge of complaints aj^ainst the lists. Five days may there- fore be held to be the legislative interpretation of the rea- sonable time allowed under the above directions of " forth- with." ;') Where a municipal clerk posted the lists in his office, but withheld copies of tlie Voters' List from parties enti- tled to receive them ; and by a false certificate made with intent to deceive the Judge, obtained the Deputy Judge's certificate authenticating tlie lists ; Held, that as the time for making complaints commenced from the date of post- ing the lists, and not from the date of sending them to the parties named that the lists so certified could not be sc: aside : He L'Orininal Voters' List, •) Ont. P. R. 4*25. See further, note (/.•) p. *2;). (») And thereupon, under the Voters' List FimiUti/ Act, the list, by virtue of the certificate of the Judge, becomes " final and conclusive evidence of the right of all persons named therein to vote at any election at which sucl' list I si s. 12, sun-s. 1.] MANUAL ON VOTERS' LISTS. 61 12. — In case complaints are made as afore- After unai said, immediately after tlie list has been finally judgeTo revised and corrected by the Judge (v), the Judge "^^J^j^of^^^' siiall make or cause to be made, and shall sign, aiteratious a statement (Form IG) in triplicate, setting forth copies of the changes, if any, which he has made in the^'*^" list ; and shall certify in triplicate (Form 17) a corrected copy of the list {tc). [TJie following ! h m )ftice, tuti- with jdge's time jpost- lo the Iside ; tlier, f, the lomes Irsons list was or could have been legally used." The effect of the Voters'' Lixl FitmUty Act, H Vic. cap. 21, O., is to render the Voters' List final and conclusive of the right of all persons named therein to vote at Provincial elections, except where there has been a subsequent change of position, or status, by the voter having parted with the interest which he had, or by the assessment roll, appeared to have, in the property : South Wentwurth, H. E. C. 531. ((■) The complaints are to be " heard and deterinined, and the list finally revised, corrected, and certified under the Voters' List Act within two months of the last day for making such complaints," (41 Vic. cap. 21, sec. 8, jjost), i.e., two months after the thirty days mentioned in sees. 9 and 11. ()(•) The practice under the Imperial Registration Acts ia for the Revising Barrister, before signing the lists to read out, in open Court, the names expunged, and inserted, by him, and all corrections made by him. Until the lists are actually signed and delivered, the register of voters cannot be said to be complete, even although, in the meantime, printed copies of the register have been issued by the Clerk of the Peace, and bear his name: Brumjitt v. Bremner, 9 C. B. N. S. 1. In this case, as late as two months after the statutory period, and before the signature of the proper ofhcer, and delivery to the sheriff (he being the custodian of tlio lists), it was discovered, on the application of a voter, that his name was accidentally omitted, — the Revising Barrister not having expunged the name, but having ■ \ Sh 'J It' 62 MANUAL ON VOTERS LISTS. [R.S.O. C. 9. Statements and cor- rected copies of lists to be prepared by Clerk if Jiidf^e so directs. clause was added hy 42 Vic. cap. 3, sec. 5:] Aufl such statement in triplicate, and such corrected copies of the said Hst shall, if the Judge so order, and under his direction and supervision, be prepared by the Clerk of the Municipality, and for that purpose the Judge shall forth wi Hi, after said list has been so finally revised and corrected, transmit or deliver to said Clerk all necessary papers and directions, which said i3aper> and directions together with such statement in triplicate and such corrected copies shall within, at latest, the week next after (.r) the said list has been so finally revised and corrected as aforesaid, be re-transmitted and delivered by said Clerk to said Judge, who there- upon shall immediately sign the said statement and certify the said corrected copies as aforesaid ; but should the said statement and corrected copies not be re-transmitted and delivered by said Clerk to the Judge within the time obove mentioned, the Judge shall immediately there- after make and sign the said statement and I I i inadvertently caused the appearance of an erasure of the name : Held, that the Clerk of the Peace was justified in causin*,' the name to be interlined, and that the name was duly registered: Ihhl. Where the name of a voter was struck off the I'egister of voters, by the mistake of the Revis- ing Barrister, and the voter tendered his vote at the polls : Held, that the vote could be counted : Oldham {Onden's Case), 1 O. & H. 156. So when the voter was struck off improperly : Ibid. (x) The words " immediately after," in the first part of the clause, are apparently entitled to be interpreted in accord- ance with the words subsequently used, as : " the week next after." s. 12,SUB-S. 2.] MANUAL ON VOTERS' LISTS. 63 certify the said corrected copies of the said list iu). (2) The Judge shall retain one of such certi- J^o^ the fied copies and one statement, and shall deliver dispose of or transmit by post, registered, one of such cer- ments^Ind tified copies and one statement to the Clerk of °'^i"'^^- tiie Peace (^) for the county or union of counties (//) The clause is rather ambiguous. Tlie Clerk after receiving "all necessary papers " from the Judge, is required to re-transmit the corrected lists to the Judge, " the week next after " the final revision ; but if not sent within the time above mentioned, it is not clear how the Judge is ' imnu'diateh/ thereafter''' to u''ake and sign the said state- ment, and certify the said corrected copies of the said list. The Clerk is subject to tlie summary jurisdiction of the County Judge, only on the couiplaint of the Clerk of the Peace or an elector. See note (J:), and sec. 21. The (bounty Judge cannot be both prosecutor and Judge. Whore an obligation is created by statute, and a remedy expressly given for enforcing it, that remedy must be adopted : St. rancras v. llattenhiiry, 2 C. B. N. S. 477. The above clause however is directory, and under a tiimilar direction to over- seers to sign and publisli the lists of voters, it was held that the direction to uign was not obligatory, but directory ; and that lists unsigned, or signed by one, or a irainority, (of the overseers, were not invalid: Morgan v. Pa)ry, 17 C, B. (:) The delivery of the voters' list to the Clerk of the Peace, determines whicli is the "proper lir' " for both Legis- lative and Municipal elections. By section 72 of the Election Act. (11. S. O. cap. 10) "the first and third part;-' of the last list of voters certified by the Judge, and delivered or trans- luitted to the Clerk of the Peace, under the Voters' List Act, at least one month before the date of the writ of election, shall be the proper list to be used at an election to the ' > '^' • ?mii i ii > i I I 64 MANUAL ON VOTi:r»S LISTS. 'R.S.O. c. 0. i 1 1 11 i la within which the municipality He.s, and one of such cortiiiocl copies and one statement to the Clerk of the Municipality, to be kept by him among the records of his oliice {(t). fmlfty to '•?• -tt sl^'*^!! ^^G the duty of the ^runicipality i.rovick'a ^yfthin whicli a Court is liolden, to provide some suitable and convenient place, properly fur- nished, heated and lighted for the holding of such Court (/>), and in case the same is not done court room Le<^islativo Assembly." The exceptions to the use of such list are detined in the six subsequent sections of the Election Act. Only the persons named in such voters' list can vote at the election. When a Voters' List was used at an election, which had not been filed for a month previous to the date of the writ of election, a scrutiny of votes was held and the votes aftirmed or struck off according to the names entered on the proper list : Prince Edward (2) H. E. C. 101. Where the result of the election has not been affected by the use of an irregular Voters' List, the election will not bo avoided: 2Ioncl;, H. E. C. 154. By section l'2-4 of the Municipal Act, the proper list of voters to be used at a Municipal election is the first and second parts of the last list of voters certified by the Judge and delivered or trans- mitted to the Clerk of the Peace under the Voters' List Act. (a) By 41 Vic. cap. 21, sec. 12, the Clerk of the Munici- pality is required to furnish copies of the Voters' List to the Returning officer in four days after a written application for the same. {h) This is similar to the provisions in the Division Courts Act, making it the duty of the municipality to provide ac- commodation for the Division Court, but " not in connection with any hotel:" (R. S. O. cap. 47, sec. C). A delinquent municipality may be compelled to provide a suitable place for the Court by writ of i andamus : Dale v. Municipal Coun- cil of Huron d- Bruce, 7 U. C. C. P. 378. SIC 1-1. J MANUAL ON VOTEIIS LISTS. 65 the Judji^e may hold said Court at such other place in the County (c) as lu3 may deem proper ; and if the same is held elsewhere than in the County Court House, the i)roprietor or proprie- tors of the huilding in which it is held may recover from the Municipality which should have made such provision the sum of $5 for each and every day during which such building is used for the purposes of such Court (d). Any Court held in the County Town shall be held in the County courts in Court House, or in such other place in saidtown7 County Town as the Judge may deem proper. 14. In all proceedings before the Judge under Powers of this Act (e), the Judge shall have, with reference ''"'^^"' (c) At such other place in the County would scarcely war- rant the County Judge in holding the Kevision Court outside the Electoral District. Questions affecting his jurisdiction to order the municipal officers and documents out of the municipality ; the duty of witnesses to attend without pay- ment of witness fees, and the other powers of a County Judge under the Act, would have to be considered in deter- mining where the Revision Court should be held under the powers conferred by this section. When an Act of Parlia- ment establishes Courts for particular localities, all things which are to be done under the authority of the Court are to be done within the jurisdiction, unless the Act expressly or by necessary implication enables them to be done else- where : Ex parte O'Loghlin, L. R. G Ch. 400. ((/) The same provision exists in the Division Court Att, yec. 9, sub-s. 2. (t) The County Judge when presiding in the Voters' Lif,t Revision Court, under the jurisdiction conferred upon hi;n by this Act, has complete jurisdiction to judicially d^tor- mine wno are, and who are not, entitled to the franohisa, as 5 ;, I { l»i*| I A'i f 1 66 MANUAL ON VOTPills' LISTS. [R.S.O. C. 9. to the matters herein contained, all the powers voters at Loji^islativo and Municipal elections. There is no appeal from the decision of the Judge on any question of fact, to any higher tribunal ; and his decisions on other questions can only bo reviewed in the Superior Courts by proceedings in the nature of applications for the Writs of Mandamus, Prohibition or Certiorari. In England there is a right of appeal from every " express decision " of a llevis- ing Barrister; but under the ]''oter!i' Listn Finalitij Act (11 Vic. cap. 21, sec. 3), the Voters' List certified by the County Judge is linal and conclusive as to the right of all persona named therein to vote at any election, at whicli such list is used, except in the special cases, provided for in sub-sees. 1, 2 and 1. But as all inferior Courts, created by statute, are bound to adjudicate only on such matters as are clearly within their jurisdiction, the Superior Courts have a gene- ral superintendence over all inferior Courts, to see that their functions are restrained within, or are fulfilled according to, the laws and stated rules by which their subordinate juris- diction is confuied and circumscribed ; and they may, under their common law or statutory powers, restrain or regulate the jurisdiction of such inferior Courts. In the Voters' List Court, the County Judge has, by virtue of this Act and the Aiisesxment Act, the powers of the County and Division Courts, and the Court is therefore, by virtue of such powers, a Court of Ilecord. Whenever power is given to any infe- rior Judge or tribunal to punish by line or imprisonment, or botli, such Judge or tribunal is a Court of Ilecord. 2Ian(Uiinuti is a judicial process or remedy and extends to the control of all inferior tribunals, corporations, and public officers. It is always granted where there is no other speci- lic legal remedy : lu'x. v. IVyHilhain, Cowp. 1)77. It may be issued against a party for a matti-r in respect of which he is liable to an action, or to a suit in equity : lu'(j. v. Santhavq)- ton, 1 B. & S. 5. When a new right has been created by Act of Parliament, the proper method of enforcing it, is by man- damns at common law : Simj)xo)i v. ScottiKh Union etc., Com- SEC. 14.] MANUAL ON VOTERS LISTS. 67 which belong to or might be exercised by hira in the County Court (/). jnmii, 1 Hem. S: Mil. 618. It was introduced to prevent disorder from a failure of justice, and defect of police. Therefore it ouf^ht to be used upon all occasions where the law has established no specific remedy, and where, in justice and f^ood government, there ought to be one :i" Per Lord IMansfield, C. J., Rex.v. Ilarker, 3 Burr. 12G5. "Where an act is required to be done for the public good, and there has been a wrongful omission to do it, and a serious inconveni- ence will arise from its not being done, a Superior Court of law has the power of ordering it to be done, under the pre- rogative writ of iiumdamus : Per Lord Campbell, C.J., in l;,'!!. V. Mayor of Rochester, 7 E. & B. 1)24. The Court will grant a utdudamiis to a County Judge, directing him to inquire into and decide under the Ontario Voters' List Act, whether the name of a voter is improperly omitted from the Voters' List, or whether one person's name should be struck out, and another's inserted in lieu thereof: lie McCullocJi and the Jiuhjc of Leeds and Grenville, 35 U. C. Q. B. 449. And it will be granted, though the Judge's decision in regard to tlic right of the person to vote is, under the statute, final: Jit' Parsons and Toms, 3G U. C. Q. B. 88. A registering officer may be required by jnandamus to register the names of voters who are properly entitled to vote : Da vies v. McKeeby, 5 Nev. 309. Prohihition ; The writ of prohibition lies to an inferior Court having a limited statutory jurisdiction from which there is no appeal, or writ of error : Thompson v. Ingham, 14 Q.B, 710 ; s. c. 14 Jur. 429. It may be issued where, having jurisdiction, the Coui't has attempted to proceed by rules differing from those which ought to be observed, or where, by the exercise of its jurisdiction, the inferior Court would defeat a legal right. " It must be fully borne in mind that, in the words of the section, ' the decision of the Judge under this [Voters' List] Act in regard to the right of any person to vote, shall be final as regards such persons.' There is • III In iuli J M IMAGE EVALUATION TEST TARGET (MT.3) /. M^/ ^^ ^S':> 1.0 I.I 1.25 - Ill 2 8 IIM II -—-■■-= • lU III 2.2 m ^ 40 2.0 ^ 1-4 IIIIII.6 /a & /a A o^ -c*l "^V ?>' >..f #1 y^ i> '/ z!;^ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY )4S80 (716) 872-4503 # .•V ^q\' \\ ^9> .V A- Va. f- ^1^ 6^ <^^/^ V ^ f/j >> f 68 MANUAL ON VOTERS LISTS. lR.8.0. c. 9. Aipoint- 15, The Judge shall have power to appoint coustabic. some proper person to attend at the si' ting of the Court as a Constable or Bailiff; and the f 110 appeal from his decision provided by the statutes. All the Superior Courts can do is to see that the Judge obeys the law. They can prohibit his proceeding if such proceed- ing be against the law; ai. .-.n direct him to proceed to perform any statuable duty iir.posed on him :" Per Ilagarty, C. J., in Re Parsom mid Tovih, and V'.; Voters' Li »t of Goderich, 36 U. C. Q. B. 93. l^;ul ibit- my isbue to prevent a County Judge seti iug aride Vol ■ » .is<.s certified by a deputy Judge under a certificate of the municipal Clerk, which duly certified the posting in his office, but falsely certified the sending of copies of the lists to the persons named in the statute : lie VOritjinal Voters' Lists, 9 Pr. R. 425. Certiorari. The writ of certiorari lies to remove from the lower courts, which are created and regulated by statute merely, their proceedings for the purposes of revision ; the Queen's Bench, by reason of the great superiority of that Court, may command the inferior Court to send the pro- ceedings before it, up thither, that it may be seen whether it confines itself to its jurisdiction, which, if it exceeds, that Court may correct : Grenville v. College of Vhysicians, 12 Mod. 380, s. c. sub nam. Groeuvelt v. Ihtrwcll, 1 Ld. Raym. 454. Although an Act may provide that no certiorari, or any appeal whatsoever, shall be allowed, a certiorari may be had where there is an absence of jurisdiction, or where a conviction on its face is defective : lie Watts, 5 Ont. Pr. R. 207. Certiorari lies to remove the proceedings of any jurisdiction created by Act of Parliament : Hep. v. Glamor- ganshire, 12 Mod. 403, 8. c. 1 Ld. Raym. 580 : and to review the legislative acts of corporations : State v. Newark, 1 Dut- cher, 39(5. And to review a by-law of a niunicipal board regulating the fees to be paid for tavern licenses : lie Rich- ardson and the Police Commissioners, 38 U. C. Q. B. 631. (/) These powers are defined by Revised Statutes of Ontario, cc. 42 and 48. SEC. 15.] MANUAL ON VOTER^' LIST.S. 69 duties and powers of such person thereat shall His duties. be as nearly as may be the same as those of the Bailiff of a Division Court at a sitting of a Division Court and in reference thereto iff) ; and the expenses of the person so appointed and oxponsoa. attending shall be borne by the Municipality the list for which is the subject of investigation, and shall include such allowance for loss of time, trouble and travelling fees as may be certified by the Judge to be reasonable (/<) ; and the 1 ■ ifl ■ ;ta {(j) These powers and duties are, to exercise the authority of a constable durin^^ the actual holding of the Court, with full power to prevent breaches of the peace, riots, or distur- bances, within the court room or buildinfj in which the Court is held, or in the public streets, &c., within the hear- ing of the Court ; and with or without warrant to arrest all parties so offending, and forthwith to bring them before the nearest J. P., or any judicial officer having power to inves- tigate the matter : (ti. S. O. cap. 47, sec. 40). Officers and persons acting in their aid, have special protection under the Division Court Act. By sec. 217 of the Act, any person wilfully insulting an officer during his attendance in Court, may bo taken into custody by the order of the Judge and fined. However gross the insult to the officer, ho should not retort or give word for word, but should at once report the mnttor to the Judge ; and if the officer is assaulted in tlie execition of his duty he may take the offending party into custody with or without warrant, and bring him before the Judge, to be dealt with according to law. The law is the oflicer's protection, and the Judge will take care that the officers of his Court are not insulted with impunity. See further as to " Con- tempt of Court," note (f) p. 52. ill) This px'ovision is now altered by 41 Vic. cap. 21, sec. It), pmt. Constables are entitled to ^1.50 per day for attend- ing Court, and 10 cents per mile one way for each mile :, ! ^ i| 1 • '.I',' >\ r*- 1 ■ ' 1 '1 70 MANUAL ON VOTERS* LISTS. [R.S.O.C. 9. amount certified by the Judge shall be paid to such person by the Treasurer of the Municipality upon the production and deposit with him of the Judge's certificate (i). ciork to bo 16. The Clerk of every Municipality ( j) shall subject to , , . 11,1 • • J- 1- 1 thosum- be subject to the summary jurisdiction and con- dictK)n"of^" trol of the County Judge in respect to the per- tho Judge, formance of his duty under this Act, and in respect to every act required to be performed by actually and necessarily travelled to effect the service of any process or notice, including the service, receipt, and return, thereof. (/) This certificate would now be as to the number of days the constable attended, and the mileage allowed for servicen of process or notices ; and should state the amount of the compensation payable by the Municipality : 41 Vic. cap. 21, sec. 17. .1- .1 ■ 1 • I i (j) By sec. 9, the powers and duties of the Clerk are the same as in the case of an appeal from the Court of Revision ; and one of such duties of the Clerk, is to act as Clerk of the Judge's Revision Court. See R. S. O. cap. 180, bcc. 59, sub- sec, fi, and note (w) to sec. 9, page 29. He is thus constituted Clerk of the Judge's Court for the revision of the Voters' Lists; and this section makes him subject to the summary jurisdiction of the County Judge. Rut neither he nor the bailiff or constable has any power to adjourn the Court in case the .Judge does not arrive at the time appointed for hv^lding the Revision Court as may be done by the Clerk of the Division Court under R. S. O. cap. 47, sec. 23. The irregular holding of a Revising Barrister's Court has been held to vitiate the votes registered thereat : Rogers on Ehc- tions, (10th ed.) 541. A Court cannot be adjourned without the presence of the Judge: Rex v. Middlesex Justices, 5 B. & Ad. 1113. B£C .17.] MANUAL ON VOTERS LISTS. 71 such Clerk touching the voters' list, in the same manner as officers of the County Court are to the Court {k) ; [and the Clerk shall receive cierk-B reasonable compensation for the services per- tion?'*'"**'^" formeil (/)j . IT- If the Judge who holds a Court believes Report by or has good reason to believe that any person or '/rau'dHj'&c. persons have contravened the tv.enty-seventh (m) (k) Tliis is in addition to tlie "summary jurisdiction'' of tlie -ludj^e which may be invoked on the application of the Clerk of the Peace, or " any person entitled to be named as an elector," as provided in sec. 2-i ^>o^J^ See further, note {(>) p. ('.8. (/) The sentence in brackets was varied by 41 Vic. cap. 21, sec. lo, and was repealed by 42 Vic. cap. H, wee. 7. By the first mentioned section, the compensation of tlie Clerk was fixed at ^;? per day for attending Court, and his actual and reason- able disbursements, in cases where the by-law or contract, under which he is employed, provided no compensation for his services under the Act (t7j) This section prohibits transfers of property for the purpose of creating votes. The offence is defined to be " occasi- (Dial ill/, "I or "■uplittiiui i-oteit,'' which means a fraud on the law of Parliament, in the same manner, and upon the same ininciple, as in ordinary cases is included in the term fraud on the common law. An "occasional voter " is defined to l)e "one whose qualification, whether from estate, office, or other cause, is conferred, or taken, for the purpose of voting at an election for a particular interest :" 1 Stephenx on Law Kh'ctions, 41G. The County Judge is also, if the facts so v/ar- rant. to report any Assessor who wilfully and improperly as- sesses or omits to assess parties, so as to give, or deprive of, a right of voting, contrary to the statute. See note (v) to sec. 27. p. 91. Ji ;!^ f. I \> '^ ■ 1(1 \ . j 11 i lill f \i e. !| 72 |i:' i I 1,1; MANUAL ON VOTERS LISTS. [R.S.O. c. 9. or thirtieth (w) sections of this Act, or that frauds in respect to the assessment or the voters' lists have prevailed extensively in the Munici- pality (o), it shall be his duty to report the same (h) This section relates to Assessors wilfully assessing a person at too high an amount with intent to give such person an apparent right to vote, or at too low an amount with intent to de])rive any person of his right to vote. (o) " Electioneering consciences are very elastic. The franchise opens a boundless field for the manufacture of votes :" Per Sergeant Cox, Ex M. P. for Taunton in Cox and Grady on Jtegii^tration and Eleciiims, p. xli.) " I found that a good deal of perjury was committed in the election cases that came before me. There were a good many witnesses whom I did not believe, and who I thought were wilfully stating what was not true." Per Blackburn, J., Committee on Parliamentary and Municipal Elections (1860) r)20. If the Judge has good reasons to believe that frauds in respect of the addition or omission of names have prevailed extensively in the Municipality, it becomes his duty to report the facts to the Government. The object of this section is to enable tlie Crown, on the report of the Judge, to take prompt and effective measures for the ])rosecution of the offenders against the laws affecting the rights of electors to their Parliamentary franchises, and thus impose penal restraints upon the ingenuity of election agents and fraudulent as-^essors. A duty similar in its object, is cast upon the Election Judges by the Controverted Elections Act, sec. 58, to report to Parliament respecting corrupt practices, and the agents guilty of such corrupt practices at elections ; on which Blackburn, J., observed: "The enactment pro- vides that, on the case being finished, the evidence should bo laid before tho Attorney-General to consider whether he would prosecute or not :" Peicdley, 1 O. tt H. 170. See also the evidence of Willes, J., before the Committee on Parlia- mentary and Municipal Elections. (1809), 412. SEC. 18. j MANUAL ON VOTERS LISTS. 73 to the Provincial Secretary, with such particu- lars as to names and facts as he may think proper (/;). IS. The Judge shall have power to amend •J^'^i«»<*- any notice or other proceeding upon such terms as he may think proper {<]). {ji) It is here made the duty of the Judf,'e to report any person who has made, executed, accepted, or become a party to any lease, deed, or other instrument, or become a party to any verbal arrangement whereby a colorable interest in any land, house, or tenement is conferred in order to qualify any person to vote. (q) The legislative policy as to amendments is contained in the Administration of Justice Act, sec. 8. and the CV)H»»/i<)?i Law Procedure Act sec. 270,by which the Judge is empowered in all suits and other proceedings to make all Ruch amend- ments as may seem' necessary for the advancement of justice, the prevention and redress of fraud, the determining of the rights and interests of the respective parties, and of the real question in controversy between them, and best calculated to secure the giving of judgment according to the very right and justice of the case ; and such amendments may be made whether the necessity for the same is occasioned Ijy the defect, error, act, default, or neglect of the party iipplying to amend. By the Ontario Judicature Act, 18sl, rule 17s, the Court may allow either party such ame:ulments as may be necessary for determining the real quesvions in controversy between them. And by sec. 17 A. J. Act, (cap. 40), "iSo proceeding at law or in eciuity shall be defeated by any formal objection," — which is the same as rule Ixiii of the election rules ; and is in effect similar to sec. 82 of 32 ii • ' I, It ,1 ' i: ' ■ I h ! •!■ I Ml ^! 111 74 MANUAL ON VOTERS' LISTS. [r.S.O. c. 9. ■ I 'i ri i y Abandon- ment by Api)olIant ana inter- vention of Ronie other. m\ lO. If any appellant or complainant entitled carried on at the expense of the client whose rij^hts were pleaded into such a maze that he was often obliged to give them up : Grant v. Eddy, 21 Gr. 577. During the earlier Revision Courts under the Imperial Registration Acts, every possible technical objection appears to have been taken to the notices which the Acts prescribed should be given in respect to objections to voters, or claims to be registered. And many of the cases seem to indicate that the Revising Barristers and Courts were more astute to give effect to technicialities, — to show how blunders could be made insuperable to defeat the law, and the right to the franchise, — than to adjudicate upon the true right of the person whose vote was claimed or objected to. Fortunately for the r^^ere8ts of justice, the reported dicisionsof our Courts may be referred to as giving truer law to aid County Judges in sweeping aside technical objections, or asserted blunders, so as to get at the very ri C. P. ')74. When a statute provides that a " per- son " shall do a particular act, it is pviina fad''., natural and reasonable to understand the Le-^islature as intending such persons, as by the use of proper means, may be able to fullil the condition ; and not those who, called " persons" in law, have no capacity to do so at any time, by any means, or under any circumstances : Ibid. " Whenever you see that the object of the Act requires that the word ' person ' shall have the more extended, or the less extended, sense, then, whichever sense it requires, you should apply the wonls in that sense, and construe the Act accordingly :" Per Lord Blackburn in Pharmaceutical Society v. Loudon, etc., Supply Aiisociation, 5 App. Cas. 857. A relator in a quo wtirninto case is not necessarily bound to prove his interest, unless the respondent question it, by denying it, and show- ing, or at least alleging, some ground for his denial ; Hey. ex rel Uartliffe v. O'liielly, 8 U. C. Q. B. 617 ; s. c. Har. & Hod. Mun. R. 459. Where, on an election petition alleging that the election was held on illegal voters' lists, the election Judge found the fact as alleged, but also held that the petitioners, owing to the illegal lists, were not qualified to petition. On appeal, the judgment was reversed, and it was Held, that an election conducted on illegal voters' lists will be set aside, notwithstanding that the petitioners fail to 77 I \' \ 11' 'i! 1 1 ! 78 MANUAL ON VOTERS LISTS. [R.S.O. C. 0. !( 1 ( 1 prosecute such appeal or complaint, upon such terms as the Judge may think just (r). SoumiTy*' ^^' ^^) In case of errors heing found in the errorH inav fiuid voters' Hst ou tho Said revision thereof, ho urdorud i ii i • ii • • i» tobei.ttid whotuer such errors are m the omission of partioi?^ names, the inaccurate entry of names, or the entry of the names of persons not entitled to prove thenisolveH qualifiod to i)€tition : Montreal Centre, 18 L. C. J. H23. It is HUiTicient if the notice is f^'iven, wliilo the objector is duly fjtuilified to f,'ivo it, and within tho period allowed for f^ivin^ notice : Jones v. Jonen, L. 11. 1 C. P. 140. See further, note (»r) p. 32. (r) This is similar to tho rijjl t {^iven to parties in Elec- tion cases under the Controverted Klectiom Act, sb. 82-03. In such cases, the application for the withdrawal of the petition must be accompanied by affidavits of the petitioner and ro8iK)ndent, to the effect that it is not the result of a corrupt arrangement. Where such affidavits were filed, and the prescribed notice was given, the Judge held he was bound to allow the withdrawal, although electors had memorialized against the withdrawal, but did not ask to be substituted for the petitioners : Stockport Election, 19 L. T. N. S. 743 : see also Brecon Election, 2 O. & H. 33 ; Ditrtiam Election, 31 L. T. N. S. 321. The election rules (Nos. liii. and liv.) require five days' notice of the petitioner's intention to witiidraw his petition, so that any qualified person may intervene and apply to be admitted to prosecute the petition. No rules regulating the practice under this Act, have been prepared by tho Board of County Judges under sec. .32. By R. S. O. cap. 49, sec. 9, the Courts have the power to appoint a person to represent the estate of a deceased litigant, or to allow the action to proceed in the absence of a personal representative. Bee also 48 Vic. cap. 13, sec. 11. 8. 20,80B.8. 1.] MANUAL ON VOTERS' L1HT8. 79 vote (m"). if it appears to the Judge (x) that the Assessor was blameable for any of the said and rrupt the indto lized edfor see 31 L. quire iwhis and rules spared S. O. erson w the ative. («•) This jjivosthe County Judjjo very lar^oiMJWorH in rcHiwct of tlio coHts of i)roceo AsHCHsor or Clerk was " V)hinieablo." Hut thou^^h the word " bhimeahlo" is not nsed in roHjHJct of errorw of the Court of llovision, it may be assumed that tl>e Act moans •• wilful errors." The maxim, omnia privtminuntur ritt"* et f )lvnnitfr fssi' acta, doni'c prohetnr in ri)ntnirium, applies to the acts of a (!ourt, and to actn which reipiire the concur- rence of t)flicial persons : lianuin i nitt-d Stntrs v. Ihindridije, 12 Wheat. 70. The f^eii'-ral presumptions of law are, that a Court does nothinf? causelcH.sly and maliciously : that the • locisions of a Court of competent jurisdiction are well fi)Uiided, and their judgments re;,'ular ; anil that facts, without proof of which the verdict could not have been found, were proved at the trial ; and that the records of the Court have been correctly made accordinj^ to the rule, rea jitdicala pro veritate acci})itur : Co. Litt. lOUrt ; Broom's Li'/zai M(i.rim«, 945. (.(•) Judicial power, as contradistinguished from the power of the law, has no existence. When Courts are said to exercise a discretion, it is a mere lej^al discretion to be exer- cised in discoverinfj the course prescribed by the law ; and when that is discovered it is the duty of the Court to follow it. Judicial x)ower is never exercised for the purpose of {,'iving effect to the will of the Judj^e, but always for the purpose of givintj effect to the will of the Legisla- ture, or in other words, to the will of the law : Osborne v. lUinh of the United States, 9 Whnat. SGO. " Discretion when applied to a Court of Justice means sound discretion K'uided by law. It must be governed by rule, not by Immor ; it must not be arbitrary, vague, or fanciful, but legal and regular :" Per Lord Mansfield, C. J., in Rex v. Wilkes, 4 Burr. 2539. r ' If i\\ i'.'ii ti '..Ai T I 80 MANUAL ON VOTERS LISTS. [r.S.O. c. 9. errors (?/), the Judge shall order (Form 18) the Assessor, either alone or jointly with any other person, to pay all costs occasioned by the same (z) ; and in case of errors for which the Clerk was to blame, the Clerk, either alone or jointly with any (>ther person, shall be charged with the costs (a) ; and in case of errors of the Court of Revision, the Municipality shall, either alone or jointly with any person, pay the costs (h), :!H '11 (v) In giving judicial power to effect prejudicially the rights of person or property, a statute would be understood as silently implying, when it did not expressly provide the condition or qualification, that the power was to be exercised in accordance with the rule of natural justice, that a person liable to be prejudically affected should first have an oppor- tunity of defending himself : Maxwell on Statutes, 325. " As a general rule no man's property or liberty even in a judicial proceeding, however large the power given to the Courts, can be brought in jeopardy, so that he may be said to be bound by it unless he has had the opportunity of being heard :" Per Richards, C.J., in Nicliolls v. Gumming, 1 S. C. R. 408. (z) This liability for " costs" is in addition to the penal- ties mentioned in section 30. See also the Assessment Act, sees. 189-194 ; and the assessor's oath, sec. 42 of the same Act. (a) In addition to the liability for the costs which may be awarded against the Clerk by this section, he is also liable to the costs of the summary proceedings authorized by sec. 24 post ; and also to the penalties provided for by sees. 25 and 26 post. (6) A municipal corporation is responsible for the acts of its servants and officers upon the same principle and to the same extent a& a private individual : Lewis v. Toronto, 39 U. C. Q. B. 343. See further note, [w) p. 79. 9. s. 20, srn-s. 1.] MANUAL ON VOTERS LISTS. subject to any claim which the Municipality may justly have against the guilty parties (c) ; or the Judge may order the Assessor, Clerk or Munici- pality in any such case, to pay the costs, if any party fails to recover the same from any other party named and ordered to pay the same ; and, in all cases not herein provided for, the costs shall be in the discretion of the Judge {d). 81 !'- %. :ii the buod penal- may be liable by sec. ec9. 25 acts of to the mto, 39 (c) A municipal council may maintain an action for damages a,i,'ainst former members of such council for un- lawful conduct, or wrongful acts whereby the costs of execming a financial commission under the statute were unduly increased. Such an action lies where the damage is shown to hive resulted naturally and directly from the conduct complained of: East Nisnouri v. Horseman, 16 U. C. Q. B., 556. ((/) Costs ar.5 not recoverable by common law, but by virtue of statutes : Garnett v. Bradli'ij, 3 App. Cas. !)41. In [)rocei3dings under statutes it is the settled rule that no costs can be awarded except such as are authorized by the par- ticular Act. A proceeding under a statute is not a proceeding in an action : lie Charity Schools of St. Diinstan, L. R. 12 Eq. ')'M. No one can be ordered to pay costs en an ex parte application : Nokes v. Gibbon, 3 Jur. N. S. 282. Costs are usually given when the case is so clear that the Court does not call upon the other side : AUen v. House, 7 M. it Gr. 157 ; Pus.-sinnhnm v. Pitty, 17 C. B. 315. But where there is a reasonably tit case for argument, the Court will not give costs : Croucher v. Browne, 2 C. B. 97 ; Collier v. Kiny, 11 C. B. N. S. -478. When the decision in appeal is adverse co the claim of franchise the Court will grant or withhold costs according as there was reasonable ground for the claim ; but '.vhen the decision against a party supports the franc' 'se, cjsts will be given : Clark v. St. Mary, Bury St. Edmunds, 1 C. B. N. S. 23. Parties are not to be discouraged from bring- ing cases of disiiualification under the notice of the proper 6 t M ' 'if i-i ! li '-,i ■ " ?'::! iW r. 82 MANUAL ON VOTERS LISTS. [R.S.O. c. 9, coui^costs (^) -^^ ^^^^^ ^^^^^^ ^^ allowed on any proceed- puiyai- ing under this Act, other or higher than would be allowed in the Division Court under the lowest scale of costs in actions therein {e). lowed. Jiiability of lor costs, be ^i\ (3) The only costs to which an appellant shall liable shall be the witness fees, unless in a case of bad faith on his part {/). tribunals by the peril of having to lose the costs necessarily incurred : licg. ex rel. lloUo v. Beard, 3 Pr. R. 357. The ten- dency of modern decisions is not to compel a party to pay costs, unless it be shown that he participated in the improper conduct for which the election is set aside : lh>(j. ex rel. Davis V. Wilson, 3 U. C. L. J. 165. A relator having acted in good faith in bringing forward the matter was not amerced in costs, though unsuccessful : lleg. ex rel. Crozier v. Taylor, G U. C. L. J. 1G5. By 41 & 42 Vic. cap. 26 (Imp.), the Revising Barrister may order costs not exceeding 40s., unless where an objection is reasonably made, or unless the objection is withdrawn, or unless for sor.ie other special reason he other- wise determines, (sec. 27, sub-sec. 3). The fees for profes- sional services in Registration Courts are not taxable under the Attorneys' Act : Re Andrew, 10 Jur. 1145. (e) The costs of any action or proceeding in the Division Court are in the discretion of the Judge. (R. S. O. cap. 47, sec. 154). A form of a bill of costs on a claim of ^20 will bo found in Sinclair's Division Court Acts (1879), 329. When as in a multitude of Acts something is left to be done according to the discretion of the justices or other authorities, on whom the power of doing it is conferred, the discretion must be oxercised honestly and in the spirit of the Act, otherwise the act done would not fall within the statute : Maxwell on Statutes, 100. (/) The effect of this is to limit the discretion given to the County Judge by sub-sec. 1, as to the costs of "appellants. '" The question whether a plaintiff had "reasonable ground '" or " reasonable cause " for adding a party as a defendant, iu SEC. 22.J MANUAL ON VOTERS LISTS. 83 ? ! ni 21. The payment of any costs ordered to be <^o8ts, pay- paid by the Judge may be enforced by an exe-iufwon-' cution (Form 19) against goods and chattels, to '''^<''**^- be issued from any County Court upon filing therein the order of the Judge, and an affidavit shewing the amount at which such costs were taxed and the non-payment thereof (g). 22. If any person not assessed (/i), or not Persons sufficiently assessed (i) is found entitled touanie" vote(j), the Municipality shall be entitled to ^;',\\';^^^ii I m ■ni an action for misrepresentation, so as to affect the question of costs, is a mixed question, compounded of facts, and a doubtful point of law : Swift v. Jeivsbury, L. R. 8 Q. B. 560. {(]) As the affidavit must show " non-payment," it may be inferred that a previous demand of the costs is necessary. (/») "Person not assessed." This covers the complaint (1) under sec. 8, sub-sec. 1, " name of voter omitted from the list," note (y) ; (2) under sub-sec. 3, " person to whom he (the person originally named ou the Voters' List) has trans- ferred the property," notes (g) and {h) ; (3) under sub-sec. 4, " person liable to be rated," notes (J) and (/) ; (4) under sub- sec. 5, "a landholder's son or wage-earner entitled to be assessed," note (n). So in appeals to the Court of Revision (R. S. O. cap. 180, sec. 56) •' person wrongfully omitted from the roll." r^ • ■ -\ [ 1 1 i (i) " Person not sufficiently assessed," i.e., a person " un- dercharged by the assessor in the roll." (R. S. O. cap. 180, sec. 56). See note (6) to sec. 8, p. 35, ante. Where a tenant '••ppeals to have his assessment increased so as to give him the right to vote, his landlord as a person appealed against, should have notice served on him : Per Moss, C. J. A., Opiit- ioii:< on I'utcrs' Lists Act, Case 3. (Appendi.^.) (j) The franchise is annexed to an interest in real pro- perty, and taxation in respect thereof. Per Moss, C. J. A., ^r^ II 84 MANUAL ON VOTERS LISTS. [R.S.O. C. 9, ^,^^^°e®y^*;. recover taxes from him, and to enforce payment jonijabie thereof by the same means and in the same manner as if he had been assessed on the roll for the amount found by the Judge (k) ; and the Judge shall make an order (Form 20), setting forth the names of the persons so liable, and the sum for which each person should have been assessed, and the land or other property in respect of which the liability exists ; and such order shall be transmitted to the Clerk of the Municipality, and shall have the same effect as to pay tdxea. Jndge'8 order. I, S3 / I Re Lincoln, 2 App. R. 335. A cur6 occupying the presbytery is not qualified to be entered on the Electoral List, as the presbytery is not a taxable property ; for it is on taxable property only the voting qualification is based : Kamarouska Electoral Lists, 3 Q. L. R. 308. " An adjudication that the persons named on the list are entitled to vote is not within the jurisdiction of the County Judge. He is to revise the list by adding the names omitted, correcting those wrongly stated, or striking out those improperly there, because those omitted have assessable property, or assessed income ; or because those inserted have it to a greater or smaller amount than stated, or have none. He adjudicates as to their property, or income, and in respect of that he corrects the list. The right to vote is the legal consequence only, and not the subject, of the adjudication." Pn Patterson, J. A., in Re Lincoln (Bonownian's Case), 2 App. R. 31G. {k) The process of assessment is in thenat ire of a judicial proceeding, and it is as much the essence of the whole pro- ceeding that the party should have an opportunity to object, and he should have notice to enable him to do so, as it is in more formal proceedings, where, according to the usual and natural course of proceeding,the party to be affected is cited in the first instance : Per Strong, J., in NichoUs v. Gumming^ 1 Sup. Ct. Can. 427. 9, SEC. 23.] MANUAL ON VOTERS L18TS. 85 if the said particulars had been inserted in the roll(/). 23. The times appointed for the performance, failure of by the Clerk of the Municipality, of the duties iwfonn required of him by this Act, shall be directory '.o'viuate* only to the said Clerk (m) ; and the non-perform- ^i'^^- ance by him of any of the said duties within the times appointed, shall not render null, void or inoperative any of the lists in this Act men- tioned (u). (/) The effect of this provision is to make the Judge's order a Supplementary Assessment Roll, for the purposes of Municipal Taxation. Where the County Judge, under the same clause in the Voters' List Act of 1874 (sec. 11), added H number of names to the Voters' List, which were not found on the last revised Assessment Roll, nor upon any supplementary Assessment Roll, or Judge's order, shewing suuli persons to have been assessed for any property or value ; Ilchl, that the added list was a nullity : Lincoln (Borrow- )iiiiH\i Cane) 2 App. R. 310. Later amendments of the Act vary this ruling. See note (k) p. 40. (in) This section was first enacted in 1859, 22 Vic. cap. 10, see. 1. See also C. S. C. cap. 6, sec. 0, sub-sec. 3. So far as the public interests are concerned, the Act may be looked upon as directory : Rfx v. Xoricich, 1 B. & Ad. 310 ; Nickle v. Douijlas, 3;") Q. B. 127. But in so far as the officer, whose - 1 ■ I t • ' I : .'1 f H' r w H I \ • 80 MANUAL ON VOTERS LISTS. [R.S.O. c. 9, in clso"" 24. (1) In case the Clerk of any Municipality MuS °' ^^^^^ *^ perform any of the duties aforesaid, the paiity fails Clerk of the Peace (o) shall forthwith apply to perform duties, act of the Court, as in analogous cases at common law. It is in accordance with the principles of the common law. irrespective of the statute 17 Car. II. cap. 8, that whenever the delay is the act of the Court, and not tliat of the party, the delay shall not i^rejudice, unless it can be shown that the other party would be prejudiced : Broom's Ltgal Maxims, 87. Where the delay in amending a writ of summons, within the statutory period, is the act of the ofi&cer of the Court, the writ will be amended nunc pro tunc : Nazer v. Wade, 1 B. & S. 728 ; Evans v. Jones, 2 B. & S. 45. But see Grace v. Clinch, 5 Q. B. 606, s. c, 3 G. & D. 591 ; Llandehig V. IJandyfrydog, 15 L. J. M. C. 92. " We cannot suppose that the Legislature intended that if the Clerk omitted any of those things which he is directed to do, — such as making out the list alphabetically, or omitting to post up a copy in his office, or transmitting a less number of copies to some of the iiarties than the Act requires — that the Judge could not proceed to revise the list on complaint being made un- der the statute. All the proceedings relative to the Clerk are merely directory with a view to notifying the electors of the state of the lists ; and when, as in this case, such notiticatiou was effectually given, and the plain object and general intention of the statute has been in fact complied with, it would be the duty of the Judge to proceed with the revising." Per Morrison, J., Revision of Goderich Voters' Lists, 1874, 6 Pr. II. 215. (o) This vests a right of action for any neglect of the Clerk, in a person who has only official duties in connection with the Voters' List, and who has no personal right of action owing to his being disqualified from voting by the Elec- tion Act, sec. 4. Where a person would have at com- mon law a right of action grounded upon an interference with a given public right, where such interference has s. 24, SCB-S. 3.] MANUAL ON VOTERS' LISTS. 87 (Form 21) summarily to the County Judge or the Junior or acting Judge of the County Court for the County within which such MunicipaHty is situate, to enforce the performance of the same. f'M (2) The application may also be made by any Elector person entitled to be named as an elector on ""^^ '^^'^'^■'' the list in respect of which the application is made (p). (8) The Judge shall, on such application, re-J"JK.omay quire (Form 22) the Clerk of the Municipality, clerk m- and any other person he sees fit, to appear be- solrtVap-' fore him and produce the assessment roll, and J.',''!"',,""^^ any documents relating thereto, or to the listoxuminM- in respect to which the application is made, and ^"^"' ^^^' operated to his individual injury, if the public right is taken away by statute, and vested in an official body to be exercised and controlled for a specified object, then the rlLjht beinf^ thus resigned by the public, the individual right of action is lost also : Kearns v. Cordwainer'a Com- pany, 6 C. B. N. S. 388. (■p) \\j is essential to an action for tort, that the act com- ; ' :-.c:'. of should be legally wrongful as regards the party '■ ■ ...idning ; i. c, it must prejudicially affect him in :\)r l-igal right : Rogers v, Rajendro Dutt, 13 Moore, P.O. :ifK . Whenever one man does an act which would operate in derogation of the rights of another, he is liable to an action without particular damage at the suit of the person whose right may be affected : Harrop v. Hirst, L. R. 1 Ex. 43. On an action brought by a person on the register against a Returning Officer who on a scrutiny found him nut entitled to vote : Held, that having lost his right to vote he had no right of action : Pryce v. Belchers, 4 C. B. 807. • :' ii n n:h| u ,; : • !♦ '1 i ^■i\ ] Hi! ii! R hh 88 MANUAL ON VOTERS LISTS. [R.S.O. c. 9, I n to submit to such examination on oath as may be required of him or them, and the Judge shall thereupon make such orders and give such directions as he may deem necessary or proper for the purposes aforesaid (q). Liability of (4) The Clerk of the Municipality shall be costs. °' personally liable for and shall pay the costs of the proceedings, unless on some special grounds the Juilge shall see fit to order otherwise, and in such special case the costs shall be in the discretion of the Judge (r). ^■Ml; .' liiin (q) By Lhe Parliamentary Electors' Registration Act, (31 & iJ2 Vic. c. 58), (Imp.), the Revising Barrister has power (sec. 29), to summon the overseers or other i)ersons having the custody of the rate-roll to produce the same before him ; and by the Registration of Voters' Act, (6 Vic. c. 18,) the Revising Barrister has power (sec. 50) to impose a fine of not less than £1, nor exceeding £5, on any assessor, collec- tor, or overseer, wilfully refusing or neglecting to attend when summoned ; and also to impose a similar fine for any wilful refiisal or neglect to make out the list ; or to insert the name of any person claiming to be a voter ; or to omit the name of any person duly qualified ; or for inserting the name of any person not duly qualified ; or for neglecting to publish any notice or list, at the time and in the manner required by the Act, &c. (s. 51). This is in addition to an action for penalties. Under this Act, and the Voters^ Lists Finality Act, similar offences render the guilty oificers subject to penalties of $200 or $2,000, which may be sued for " in any Court having jurisdiction to the amount of the penalty in cases of simple contract :" (R. S. O. cap. 8, sec. 3, sub-sec. 29). And may bo tried by a Judge without a jury. (r) See notes (J) p. SI, and (e) p. 82. KUv :u. MANUAL ON VOTERS LIHTS. 89 (5) Such proceediiii^s and such order of the -T'l'^ce'R or- -^•■,1,.. -^ • , , (icr uot to •Judge shall not in anywiF-e exonerate or release leicaso the Clerk from liability to the penalty Lerein-^'iyaUy.''^' filter imposed (s). 25. If any Clerk of a Municipality omits, Penalty neglects or refuses t'> complete the voters' lists, uegiect" or to perform any of the duties hereinbefore required of him for his ^funieipality, such Clerk, for each such omission, neglect or refusal, shall incur a penalty of $200 [t). on r etc. I .t, ■' t ' I {») Where a statute pive3 a summary remedy a<,'ainst a co.'ponite officer who refuses to comply with fche provisioiib of the Act, such remedy does not take away the right of action which the corporation has against such officer for the breach of duty complained of : Maijor <>/ Lichjiehl v. Simpson, 8 Q. B. G5. When a statute inflicts a penalty for not doing an act provided for, the penalty enacted implies that there is a legal compulsion to do the act in question : lU'dputh V. AUun, L. II. 4 P. C. 511. (() The law may be severe in laying so high a penalty on an omission ; but an omission from incapacity, or inability is one thing, an omission from negligence is another. The neglect of doing a particular act is an offence ; a mere omie- sion to do it, as in the case of prevention by superior force, is not an offence : Per Lord Denman, C. J., in King v. Bttrrdl, •i Jur. Ill s. c. 12 A. & E. 407. Neglect is an omission to do that which it was in his power and within his duty to do, without having any lawful excuse for the omission. For- getf ulness or carelessness is certainly not a sufficient excuse : Per Coleridge, J., Ibid. Mistake of duty and honest inten- tions will not excuse the offender: Amy v. yn2)L'rvi.-:org, 1 Wall. 13(j. When an assessor has reasonable notice be- fore he returns his roll, that a change in occupancy has been made, and ho omits to make the necessary changes, it may properly be considered that he has wrongfully r ■lii i| '1 i li^ f {4 J ! f A ::i 90 MANUAL ON VOTERS LISTS. [R.S.O. c. 0, I'onaity 26* If any Olerk of a Municipality, or Clerk fuuy faiHi. of the Peace, or any other person, wilfully makes fyiuKiiHts. j^jjy alteration, owission or insertion, or in any way wilfully falsifies any such certified list or copy, or permits the same to be clone, every such person shall incur a penalty of $2000 («). ill i ' " y . 1 ■ 1 11 ■ refuBed to insert the proper name on tlie roll : Per Bichards, C. J., in B.e McVuUoch and the Jndije of Leeds and Grenville, H5 U. C.Q. B. 452. Before the commencement of an action for a penalty against a registration officer who is required to make out burgess lists, no previous notice of action is necessary : King v. liurrell, 12 A. & E. 460. An information against municipal officers for refusing to put a voter's name on the list ohould allege that they knew of his right to vote : State V. Danielx, 44 N. H. 383. («) In an action against a registration officer (overseer) forajpeualty for wilfully inserting the names of certain persons on the list who were not entitled to vote, it is not essential that such officer should have acted from a corrupt motive ; it is sufficient if he has disobeyed wilfully the pro- visions of the Act : Tan- v. McGahey, 7 Car. & P. 389. In charging the jury the learned Judge said ; " With respect to confusion occuring in the making out of the list, I confess I do not see the slightest occasion for any. It is like a complicated machine, which confuses at a single view, but may not be at all complex in its details. It is true that only three instances are selected out of a long list of names ; but there is distinct evidence that the defendai-t disregarded the notice given to him by the witnesses, that these three persons had no right to vote. It is the duty of the overseer to make out the list ; and he may ask such questions as he pleases of the collectors of assessed taxes, to enable him to do so. But if his notice is distinctly drawn to particular names, he has the opportunity of correcting his list at the time, and he is bound to do so. |Thename>j were introduced improperly :" Per Lord Denman, C. J., Ibid. The jury SEC. 27.J MANUAL ON VOTERS LISTS. 1)1 27. No person shall make, execute, accept coiorabu. or become a party to any lease, deed or other lu*" ony^n instrument, or become a party to any verbal confcV" arrangement, whereby a colourable interest in^ote. any land, house or tenement is conferred, in order to qualify any person to vote at an elec- tion (?•) ; and any person violating the provisions found a verdict for the plaintiffs, £50. The introduction of the term "wilful" would imply a request; for unless a person has been requested, and has refused to act, I do not see clearly how hia neglect could be wilful : Per Williams, J., in Khiff V. Burrell, 4 Jur. 1111. . I 1 1 ti^'li ti f '.11 I. Ifl (v) Conveyances made for the purpose of qualifying votes at an election, by splitting freeholds, are a fraud on the law of Parliament, on the same principle as in ordinary cases is included in the term fraud on the common law: 1 Stephens on Elections, 410. Conveyances and agreements made for the purpose of giving a temporary qualification, being against public policy, are void : Langlols v. Baby, 10 Gr. 358. Such conveyances must fall within the same category as a convey- ance to enable a man to sit in Parliament, but intended to convey no beneficial interest : Per Spragge, V. C, Ibid. What is against public law is against public policy : Per Van- Koughnet, C, Ibid, 11 Gr. 1. See also, Ernes v. Barber, 15 Gr. (57*.). Conveyances which are not meant to convey a real interest in land, but only a pretended and fictitious interest, and made only for the purpose of multiplying voices at an election, are void: Alexander v. Neivman, 2 C. B. 122; s. c. 10 Jur. 313. The Act 7 & 8 Wm. III. cap. 25, sec. 7 (Lord Somer's Act), provides that all conveyances of any messua- ges, lands, tenements, or hereditaments, in order to multi- ply voices, or to split or divide the interest in any house or lands among several persons, to enable them to vote at elec- tions to serve in Parliament, are void and of none effect. See also, 10 Anne, 23; 18 Geo. II. cap. 18, sec. 5. It was thought beneficial, where such baneful practices were daily if .' I if ! ' II I 92 MANUAL ON VOTKRS lilSTS. [r.S.O. c. '.», ?!! of tluH section, besides being liable to any otbev penalty prcKcribed in tbat behalf, shall incnr a 4 1 - 'ri I) l 31.^ practisod, to prnmulfi;ate tho doctrine of the common law to Khoriffs and other ofticers to wliom tho duty of conductinj^ an election was trusted, and to f^ive it the additional weij^ht and solenuiity of a lot,'islative declaration : J'cr Tindiil. ('..]. Ibid. 'Ali>, Before the Act Lord Soniers held that the making of votes by 8plittin«,' freeholds by fraudulent conveyances, or conveyances not made bona fide on good consideration, were void by the common law : Onslow v. I'diliJ' of Ifii.-jri. p. 508. When punishment is brought within reasonable limits, it is understood that it will be enforced ; and therefore the act is abstained from. The certainty of the penalty being incurred, tends to diminifcli the offence, p. 49. (?) This is the same as sec. 40 of the Assessment Act. And by sec. 38 particulars of tho assessed property obtained < ? \f in :| :;« M< n PI ^B:t ! ■ i li f \-]-^ m 11 if ii ) 96 MANUAL ON VOTERS LISTS. I'r.s.o. c. 0. Penalty oil 5$Oo Aiiv ussessoi' wlio wilfullv and improperly wrongfully lusGrts aiiy iiaiiie m the assessment roll, or or mni'tt'hig assesses anv person at too high an amount, with toasaesa. 'intent ill either case to give to any person not entitled thereto an apparent right of voting at any election, or who wilfully inserts any fictitious name in the assessment roll, or who wilfullv and improperly omits any name from the assessment roll, or assesses any person at too low an amount, with intent in either case to deprive any person of his right to vote {a) shall, upon conviction thereof before a court of competent jurisdiction, be l-able to a fine not exceeding $200, and to imprisonment (b) 'M\%: 1 1 f : by the assessor fro)n the person assessable is not to excuse the assessor from making due enquiry to ascertain its correctness. See also notes (») p. 00 and (r) p. 91. (a) This section applies to fraudulent assessments for the purpose of making votes, and may be read as a corrollary to sec. 104 of the Asscssiiieut Act, which imposes a penaltj- on the assessor for making fraudulent assessments, " An assessor violating this section is liable not only to an action for the penalties above prescvibed, but also to an indictment for a misdemeanor. These wilful and mala fide acts an.l omissions are evidently to be treated as indictable offences :"' I'cr Hagarty, C.J,, in liefiiua v. Snider, 23 C. P. 33(5, In an iiction against municipal officers by an individual v.ho is liable to taxation, for their omission to tax him, whereby he loses his right to vote, it must be shown that they omitted to tax him wilfully, or with design to deprive him of his vote ; or that they had such actual knowledge of his liability to taxation that a wilful omission to tax him may be rea- sonably inferred : Griffin v. Rising, 11 Mete. 339. (?>) The Legislature of Ontario has legislative authority to impose imprisonment with or without hard labor for m R. 31, SCB-S. l.j MANUAL ON VOTERS* LISTS. until the fine is paid, or to imprisonment in the common gaol of the county or city, for a period not exceeding six months, or to both such fine and imprisonment, in the discretion of the court (c). 97 31. (1) The Clerk of the Peace and the Clerk cierks of of any Municipality having the custody of the iud or^^ list of voters of any municipality or part of a-iiy ^Siesto municipality or place, shall furnish a certified funiiah copy of such list, then last revised and corrected, Srlv^ised or of any of the parts thereof, to any person who ^ o*°^'^' ^'^*- may require such copy or part, on being paid for the same by such person at the rate of four cents for every ten voters whose names are on such list or part : the said ollicers may furnish printed copies for each of which they shall be entitled to receive six cents instead of the fee aforesaid ; and the officers shall verify any alterations made therein, by writing their in- ' 'm t ■ It t i enforcing any law of the Province, and may delegate that authority to municipal bodies : Ihnhje v. Retj 'J App. Cas. 117. ((•) By 31 Vic. cap. 71, sec. 3 (D) any wilful contravention of any Act of the Legislature of any of the Provinces witliin Canada, which is not made an offence of some other kind, shall be a misdemeanor and punishable accordingly. There are some offences which must be prosecuted under the Dominion Statutes, and some which may be prosecuted under the Ontario Statutes : Drake q. t. v. Preston, 34 U. C. Q. J3. 2o7. Where an offence is punishable by a criminal prosecution, and a statute prescribes a particular remedy by a summary proceeding, the prosecutor has the option of proceeding by indictment, or by the mode pointed out by the statute : Rex v. Robinxon, 2 Burr. 799. \n m 98 MANUAL ON VOTERS LISTS. [R.S.O. c. 9, Foes to Clerk of the Peace for copy of voters' list. See Rev. Stat. cap. 10, sec. 56, or cap. 174, as. 28, 129. itials in close proximity thereto. If the altera- tions or interlineations exceed one hundred, it shall be the dutj' of the said officers to furnish written copies {d). (2) For each copy of the voters' list or of any of the parts thereof furnished to the Returning Officer, according to Form 8 in Schedule A to The Election Act, or according to Schedule C to The Municipal Act, the Clerk of the Peace furnishing the same shall be entitled to receive the sum of six cents for every ten voters whose names are on such list or part, as the case may be. Board of 32. The Board of County Judges may, if re- judges' quested so to do by the Lieutenant-Governor, Ss™^'^^ frame Rules and Forms of procedure for the pur- pose of better carrying this Act into effect ; and such Rules and Forms shall, after being approved of by the Lieutenant-Governor in Council, have the same effect and force as if they formed part of this Act (e). (d) The fees to be paid are : (1) for a certified copy of the revised and corrected list, four cents for every ten voters ; or (2) for a printed copy of list, six cents for pamphlet. Upon tender of the amount specified it is made the duty of the Clerk to furnish the copies required, — subject however to the provision as to alterations and interlineations. By 41 Vic. cap. 21, sec. 10, it is the duty of the Clerk to allow any voter, or the agent of any voter, to inspect and take copies of or extracts from the Assessment Rolls, Voters' Lists, notices, complaints, etc., in his office. See note to that sec- tion, f and the Act, 46 Vic. cap. 18, for Schedule. (e) The "Board of County Judges" was originally ap- pointed to frame rules for Division Courts: (R. S. O. cap. •15 , a^ I srx. 34. MANUAL ON VOTERS* LISTS. 99 ■ iP 33. The words Householder (H), Freeholder worde (F), and Tenant (T), appearing on the assess- hSder/-' ment roll pursuant to The Assessment Act, shall, how to be" for the purposes of this Act, be held to also mean ^"J®"^®** °° respectively Occupant (Oc), Owner (0), or Ten- ant (T), and shall be so entered in the voters' list by the Clerk of the Municipality (/). See Rev. Stat. cap. 180. sec. 18. 34. In carrying into effect the provisions oi^°^J^l^>^- this Act, the Forms set forth in the Schedule Act may be hereto may be used {g), and the same or Forms to "^ the like effect shall be deemed sufficient for the purposes mentioned in the said Schedule (h). pi i ' if 47, 88. 237, 238.) No rules or forms have been promulgated for the Revision of Voters' Lists. (/) See the table appended to note (/) p. 8. By the Assess- ment Act, 48 Vic. cap. 42, the Assessor is required to set down in his roll whether the party is a Freeholder, House- holder, Tenant, or Landholder's Son, by inserting opposite the name of the party the letters F., H., T., or L. S., as the case may be. But see note (/) p. 104. (//) The form of Voters' Lists given with thib Act was repealed by 42 Vic. cap. 3, sec. 9, and a new form provided by that Act. The forms will be found in the Appendix. I ■ i'\ (h) When a statute expressly provides that a thing is to be done in a given form, the statute ought to be followed : Harrison's Municipal Manual, 238. The forms here given, or to the like effect, shall be deemed sufficient. By the Interpretation Act, sec. 8, sub-sec. 32, it is provided that " when forms are prescribed, slight deviations therefrom not affecting the substance, or calculated to mislead shall not vitiate them." The English Ballot Act (35 & 36 Vic. cap. 33) provides that " the schedules, and notes thereto. ,, I si SP''^' 100 MANUAL ON VOTERS LISTS. [R.S.O. C. 9, and directions therein, shall be construed and have effect as part of the Act," and in the schedule it was stated that "the forms contained in the schedule, or forms as nearly resembling the same as circumstances will admit, shall be used." At an election held under this Act, the Returning Officer did not observe the forms provided : Held, that the breach by the Returning Officer of the directions in the rules to the Act, which did not affect the result of the elec- tion, did not render the election void : Woodward v. Sarsons, L. R. 10 C. P. 733. " It would be quite contrary to the recognized principles upon which Courts of Justice con- strue Acts of Parliament, to enlarge the conditions of the enactment, and thereby restrain its operation, by a reference to the words of a mere form given for convenience sake in a schedule, and still more so when that restricted operation is not favourable to the subject, but the reverse." Per Lord Penzance, in Dean v. Green, 8 P. D. at p. 89. If the enacting part of the statute and the schedule cannot be made to correspond, the latter must yield to the former ; Per Lord Cottenhara, L. C, in Ite Baines, 1 Cr. & Ph. 46. m MANUAL ON VOTEltS LISTS. 101 An Act to give finality to Voters' Lists and for other purposes. 41 VICTORIA, CHAPTER 21. '■I [Assented to 7tli March, 1878.] HEE MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — 1? 1. This Act may be cited as "The Voters' short title Lists Finality Act'' {a). r (n) " I would respectfully submit for the consideration of the Legislature, whether the law should not be so amended that the certified List of Voters after it has been finally revised, should be considered as establishing the right of tlie elector to vote at the time of the revision ; and that the only matter as to the right of the elector to vote that should be enquired into before the rota Judges on a scrutiny, should be such as might arise after the filing of the revised List of Voters :" Per Richards, C.J., (1871) in lie Stormont, H. E.G. •ii. The judicial construction placed upon the Election Act permitted great latitude of inquiry upon the right to vote upon a scrutiny being held. It'was to prevent this extrav- agant range of investigation, which reached a culminating point in one memorable instance, the Act of 1878 (41 Vic. cap. 21,) was passed : Per Moss, C.J. A., in Be South Went- north, H. E. C. 534. See further, note (h) p. 1. I ■ SB ,!l * it ; •v^f m 102 MANUAL ON VOTERS LISTS. [41 Vice. 21, interpreta- jj. In this Act, unless there is something in tion. ' J n $ the context repugnant to such a construction (6): Election;" 1. The word " Election " (c), the words " To (6) An interpretation clause should be used for the purpose of interpreting words which are ambiguous, or equivocal, and not so as to disturb the meaning of such as are plain : Reg. V. Pearse, 5 Q. B. D. 386. An interpretation clause in an Act should be understood to define the meaning of the word thereby interpreted in cases as to which there is nothing else in the Act opposed to or inconsistent with that interpretation : Midland Railway Co. v. Ambergate, drc, Raihoay Co., 10 Hare, 359. Words which are terms of art ought to be distinctly explained. Common words, there- fore, ought to be used in their common acceptation, and when they have different acceptations in common language, these, when it is necessary, ought to be distinguished. lo is sufficient to define words that are uncommon, or that are used in an uncommon meaning : Reid's Intellectual Potvers, 219. The modern legislative practice is to have an intro- ductory interpretation clause to each statute. The first general Interpretation Act was passed by the Legislature of Upper Canada in 1837 : 7 Wm. IV. cap. 14. In 1849 a similar Act was passed by the Legislature of Canada : 12 Vic. cap. 10. These Acts were consolidated in C. S. C. cap. 5, and C. S. U. C. cap. 2 ; and were made applicable to the Dominion Acts with some additions in 1867 in An Act Respecting the Statutes of Canada, 31 Vic. cap. 1 (D.). In the session of 1867-8 the Legislature of Ontario passed a similar Act, which was consolidated in 1877 as The In- terpretation Act, R. S. O. cap. 1. In 1850, a similar but shorter Act was passed by the Imperial Parliament (Lord Brougham's Act), 13 & 14 Vic. cap. 21 ; see Chorlton v. Lings, L. R. 4 C. P. 374. (c) "Election" shall mean an election of a member to serve in the Legislative Assembly : R. S. O. cap. 10, sec. 2, sub-sec. 7. m To Lings, B. 2, sUB-8. 1.] MANUAL ON VOTERS* LISTS. 108 Vote"(f^), the words "Corrupt Practices "(. S. G21. In addition to the classes of persons whose right to vote may be challenged on a scrutiny of votes, the votes of persons voting twice at the election (R. S. O. cap. 10, sec. 17B), and the votes of persons who personate voters may be struck off. But though this Act makes the Voters' List final as regards the votes of others than those specially excepted by this Act, and those last mentioned, persons wilfully votnig at an election without having all the qualifications required by law to entitle them to vote, are liable to a penalty of §200 each : (R. S. O. cap. 10, sec. 108.) And they may also be indicted at the Assizes for a misde- meanor : Reg. v. Sturdy, Goderich Autumn Assizes, 1882. (l) " Non-resident within the Municipality." This term .vas intended to pffect income voters, but under the amend- ments made in ;> 36, substituting residence within the Elec- toriU District, it should now read as " non-resident in the Electoral District." (m) " Non-resident within the Electoral District." This term applies to all classes of voters ; for by the Franchise and Representation Act, 1885 (18 Vic. cap. 2), as amended by the Act of 188G (49 Vic. cap. 3), the franchise for Legislative elec- tions is limited to persons who are " at the time of the final revision and correction of the Assessment Roll, and also at the time of the election, a re.'^ident of, and domiciled ivithin the Electoral District, for which he claims to vote." See further the notes to the Election Act, post. i\^ -;ii 8. 3, 8CB-8. 4. ] MAy^TAL ON VOTERS' LISTS. 109 which the election is being held, and who by reason thereof are under the provisions of " The Election Act of Ontario " incompetent and dis- disentitled to vote; (?z). [Subsection 3 was repealed by 48 Vic. cap. 2, sec. 4, and 48 Vic. cap. 3, sec. 5.] (4) Persons who, under sections four (o), J^^^Trs^o five (j)), and six ((?) of "The Election Act o/cap. lo. (n) " The particular portion of the Election Act to which reference is here made does not enumerate any grounds upon which a person shall be incompetent or disentitled, but merely states the necessary qualification. The particular sub-section now in question does not seem to be happily framed; it invites the discussion it has received. It does not appear possible to apply to it any rule of minute verbal criticism ; such a test it obviously will not stand. But keepinj^ in view the discernable object of the legislature, we think its effect is to render the Voters' List fina^ except where there has been a subsequent change of position by the voter havinf* parted with the interest which he had — or by the Assessment Roll appeared to have — in the property, and becoming also a non-resident of the Electoral Division :" Per Moss, C.J. A., Re Soidh Wentivorth, H. E. C. 534. (o) This section disqualifies certain officials. {in) p. 10, and notes to sec. 4 of the Election Act. See note (p) This section disqualifies Tleturning Officers, Election Clerks, and persons receiving or expecting to receive pay- ment for acting as counsel, agenta, attorneys, or clerks at the election, or in any other capacity whatever, in reference thereto. See further the notes to sec. 5 of the Election Act. {q) This section provides: "No woman shall be entitled to vote at any election." But by the Municipal Amendment Act, 1884, widows and unmarried women, if qualified as to ■'v. \- , ti t 5 U m nj 110 MANUAL ON VOTERS LISTS. [41 Vie. c. 21, ^^^ Ontario,'' are disqualified and incompetent to vote. [Sections 4, 5, 6 and 7 made temporary pro- visions respecting the Voters' List of 1877.] re^se vo- ** ^^ ^^^^^ hereafter be the duty of the County ters' lists Judge so to arrange and proceed and so to fix months* of° the sittings of the Court for the hearing of com- fofcom- plaints against or in respect of any Voters' List, plaints, that such complaiuts shall be heard and deter- mined, and said list finally revised, corrected and certified under ** The Voters' Lists Act," within two months (r) of the last day for making such complaints (s) : Provided always, that no- J' :f property or income, may vote at Municipal Elections, note (o) p. 11, and note to sec. 6 of the Election Act. See (r) This direction must be construed as subject to the statutory and other duties of the County Judge in holding the County and Division Courts. The sitting for the revi- sion of the Voters' L'sts should be held in the municipality whose list is being revised. See note (c) p. Co. («) This clauE ;> limiting the County Judge to two months for the revision of the Voters' Lists, must be read as merely directory. See notes to sec. 23, p. 85. When a statute is merely directory, a thing omitted to be done at the proper time may be allowed afterwards : Hex v. Loxdale, 1 Burr. 445. There is a known distinction between circumstauces which are of the essence of the thing required to be done by an Act of Parliament, and clauses merely directory. The pre- cise time in many cases is not of the esscnse : Per Lord Mansfield, C.J., Ibid. Where owing to the neglect of the Justices, the overseers were not appointed at the time fixed by statute, a mandamus was granted directing them to ap- poiat them, there being no negative words " and at no other SEC .8.] MANUAL ON VOTERS LISTS. Ill thing in this section contained, shall apply to Proviso. any Voters' List specially pro\ided for by the ^K^pired]. 1' time" in the Act: Eex v. Sparmv, 2 Strange 1123. So a mandamus was granted to appoint overseers in an extra- parochial place after the time had expired : Rex v. Inhabi- tants of Iluff'ord, 1 Strange 512. Where a statute directed that the Michaelmas Quarter Sessions should be holden in the week next after the 11th October : Held, merely direc- tory, and such sessions may, notwithstandingtheenactment, be legally holden at another time : Hex v. Ju>!tices of Leices- ter, 7 B. & C. 6, s. c, D. tt Ry. 772. " If there had been negative words declaring that the sessions should be holden at no other time but that specified, we might give that effect to the statute ; but the words used being only affirmative, I think the authority of Lord Hale (Hale's P. C. 50) is suffi- cient to warrant us in saying that the statute is merely directory, and that we cannot hold that the proceedings at the session in question, were all coram non judice : Per Lord l^nterden, C. J., Ibid. " The distinction between directory and imperative statutes has been long known ; an early in- stance in which it was taken, is the case of Rex v. Sparrow, 2 Stra. 1123, as to the time of choosing overseers. I under- stand the distinction to be that a clause is directory when the provisions contain mere matter of direction and nothing more, but not when they are followed by such words as that anything done contrary to such provisions shall be null and void to all intents :" Per Taunton, J., in Pcarce v. Morriee, 2 A. & E. 96. A strict and severe interpretation of the statute is to be avoided, if possible, when it leads to conse- quences which the Legislature must be presumed not to have intended : Per Moss, C. J. A., in Re Lincoln, 2 App. R. 338. A statute specifying a time within which a public officer is to perform an official act affecting the rights and duties of others, is directory merely, unless the nature of the act to be performed, or the phraseology of the statute is such that the designation of time, must be considered as a limitation of the power of the officer: People v. Allen, 6 Wend. 480; M«. M M I 112 MANUAL ON VOTERS LISTS. [41 Vic. c. 21, provisions of sections four, five and six of this Act {t). Assess- 9, To remove doubts it is hereby declared entry ou that any Farmer's Son entitled as such to be Srmer's asscsscd or to have his name entered in the ^°^- Assessment Eoll of any Municipality {u), shall be People V. Cook, 8 N. Y. 67 ; Jackson v. Young, 5 Cowen 269. A statute directing an officer, before whom proceedings were had, to make and file his report within twenty days after the appointment of trustees, and also directing the latter to cause their appointment to be recorded within thirty days, is directory merely, and an omission to comply with these requirements within the prescribed time will not vitiate the proceedings : Wood v. Chapin, 13 N. Y. 509. When there is no substantial reason why the thing to be done might as well bo one after the time prescribed as before ; no pre- sumption that allowing it to be so done, it may work an injury or wrong ; nothing in the Act itself, or in other Acts relating to the same subject matter, indicating that the Legislature did not intend that it should rather be done after the time limited than not to be done at all ; then the Courts assume that the intent was that if not done within the time prescribed, it might be done afterwards. But when any of these reasons intervene, the limit is established : State V. McLean, 9 Wis. 292. The time fixed for the per- formance of intermediate steps, after jurisdiction has been once acquired, should be regarded as directory only, and an omission to perform one or more of them in time, would not render the whole proceeding abortive : United States Trust Company v. United States Fire Insurance Covipany, 18 N. Y. 220. \t) The sections above referred to are now effete. L IT'! (i() A person residing on and working a farm, with his father, under the promise of a deed of a part of a farm, SEC .9.] MANUAL ON VOTERS LISTS. 113 ■!:fl 80 assessed and shall have his name so entered without any request in that behalf, unless he informs or notifies the assessor to the contrary (?;) ; and any person entitled to be entered in such Assessment Roll or in the Voters' List based thereon, or to vote or to be a voter in the Elec- toral District in which such municipality is situate {w), shall, in order to have the name of such Farmer's Son entered and inserted in such Assessment Roll, or List of Voters, as the case may be, have for all purposes the same right to ■ • j m should not be entered as owner jointly with his father, but as a "Farmer's Son:" Per Moss, C. J. A., Opinions on the Voters' Lists Acts, Case 8 (Appendix.) (r) There is no provision now in the Assessment Act, direct- ing the Assessor to enter names under the distinctive title of " Farmers' Sons ;" and it is not clear how the above pro- vision for " Farmers' Sons " applying to be entered on the Voters' List for Municipal Elections only, can be worked out. The Assessment Avievdment Act, 1685, 48 Vic. cap. 42, sec. 4, repeals the provisions of the Assessment Act, R. S. O. cap. 180, sec. 20, directing the assessor to enter every farmer's son bond fide resident on the farm of his father or mother, at the time of making the assessment, and makes new provisions respecting a new class of voters under the title of '• Landholders' Sons." By these new provisions the assessor is directed to " enter and insert on his roll next after any landholder named therein, the name of every son of such landholder who is 21 years of age, and who is, and for 12 months next, prior to the return by the Assessor of his Roll, has been, bond fide residing with such landholder in the resi- dence or dwelling of such landholder within the local muni- cipality," and he is also to write opposite the name of every such son the letters " L. S." (w) See note (w) p. 32. 8 W-: m 114 Right to apply. MANUAL ON VOTERS LISTS. [41 Vic. c. 21, apply, complain or appeal to any Court or to any Judge in that behalf, as such Farmer's Son would or can have personally, unless it is made to appear to the Court or Judge that such Far- mer's Son actually dissents therefrom ; and the Act passed in ihe fortieth year of the reign of Her Majesty, chaptered nine, and entituled " A7i Act to (five the rir/ht of Voting to Farmers' Sons in certain cases" (x), shall be read and construed as if this pection had been included therein at the t.iu' . uhe passing thereof (?/). Inspection lO. Any votcr, and any person entitled to be o"docii-^*^^ a voter, and any ageji.t of snch voter or person, uientB. shall have liberty at .^il 1 1 ason'^.ble times and under reasonable restriction:"., to inspect (z) and 10 Vic. cap. 9. (.r) This Act was repealed by 40 Vic. cap. C), and the pro- clamation of the Lieutenant-Governor, issued in pursuance thereof, (see R. S. O., Schedule A, vol. 2, p. 2293) ; and its provisions wci'e incorporated with and re-enacted in R. S. O. cc. 9, 10, 174 and 180. See /i/J, Appendix B, p. 2449. Where an expired or repealed statute ia afterwards revived in another statute, the law of the first is in force : Shlpvian v. Henhest, 4 T. R. 109. {y) Where an Act recited certain statutes and repealed them ; and then gave certain powers "in terms of the said recited Acts," which were the repealed statutes: Held, that such phrase revived and consolidated the provisions of the repealed statutes : JUantijre v. Clyde, (5 App. Cas. 273. It is no doubt a very extraordinary way of carrying out the announced intention of the Legislature — to repeal the former laws, consolidate their provisions, and say that the powers conferred shall be just the same as if the repealed Acts were still in force: Fcr Lord Blackburn, Ibid. [z) The common law rule is that where documents are of a public nature, and are kept for the use of the public at SEC, 10.1 MANUAL ON VOTERS LISTS. take copies of, or extracts from assessment rolls, notices, complaints, applications, and other papers and proceedings necessary or of use for 115 m large, every person affected or interested in such documents has a right to inspect them at reasonable times. Statutes prescribing such right of inspecdon are supplementary of the common law. Documents which are of a public nature, and which are public documents, cannot be withheld from inspection : liex v. Binhop of Ely, 8 B. & C. 112. The right to inspect may be enforced by mandamus : Tapping on Man- damns, 94, IGl. And when a new right has been created by Act of Parliament the proper method of enforcing it is by vmndamns at common law : Simpson v. Scottish Union dr. x^ompanij, 1 Hem. & Mil. 018, s. c. 9 Jur. N. S. 711. The writ lies to allow a burgess to inspect the voting papers deposited with a town clerk and to compare them vith a list of his own, and to permit him to mark on such list the information he finds in such papers : Eex v. Arnold, 4 A. & E. 057. An inhabitant of a parish and interested in the question of a custom as to a church rate may have liberty to inspect the parish books : Anon., 2 Chit. R. 290. A rated parishioner has an interest in seeing what has been done with the corporate funds, and whether the expenditure of the parish money is proper ; and without any statutory provision authorizing inspection, the Court will grant him a mandamus to inspect the accounts of such expenditure : Rex V. Great Farriw/ton, 9 B. it C. 541. But he must show that the purpose for which he desires the inspection is one connected with the general interest of the public and not arising out of his own personal convenience or caprice : Rex V. Clear, 7 Dow. & L. 393, and it will not be granted to ratepayers merely to gratify a rational curiosity after the accounts have been audited and published : Rex v. Stafford- shire, A. ife E. 84. " We are by no means disposed to narrow our own authority to enforce by mandamus the production of every document of a public nature in which any one of the King's subjects can prove himself to be interested. ill : n ;:f 'it; 111 • 'ii!^ ;i 11 : I I- : •Mi i 11 ',1 1 116 Duty of Clerk. MANUAL ON VOTERS LISTS. [41 VIC. c. 21. the carrying out of the provisions of " The Assessment Act,'* " The Voters' Lists Act,'* and this Act (a) ; and the Clerk of the Municipality is io afford for the said purposes all reasonable facilities which may be consistent with the safety of the said documents, and the equal rights and interests of all persons concerned (6), and shall For such persons every officer appointed by law to keep records ought to deem himself a trustee :" Per Lord Den- man, C. J., Ibid. 99. " I do not see upon what principle of justice he who is a trustee and guardian of the evidence of other's rights can lock it up from them :" Per Lord EUenborough, C.J., in Rex v. Tower, 4 Man. & Sel. 162. A resident inhabitant of a corporate town, though not a cor- porator, but who is living in a place in which he is under the rule and government of the corporation, may have an inspection of their by-laws : Harrison v. Williams, 4 Dow. & Ry. 820. The writ will be granted in the case of a private corporation to inspect a book of accounts between the com- pany and its shareholders, and which is regarded as confi- dential : People v. Pacific Mail Steaimhip Co., 50 Barb. 280. And to aid a judgment creditor of a company in ascertaining who are its shareholders and the amounts unpaid by them : Reg. V. Derbyshire, 3 E. & B. 784. Everybody has a right to inspect the books of the sessions of a corporation : Herbert V. Ashburner, 1 Wils. 297. (a) This inspection is to be allowed by the Clerk without the payment of fees. " It is a well settled rule of law that every charge upon the subject must be imposed by clear and unambiguous language :" Dioarris on Statutes, G46. Acts in order to infringe upon the legal rights of the subject, and especially to impose a charge or tax, must be expressed in language clear beyond all reasonable doubt : Shaw v. Ruddin 9 Ir. C. L. R. 214. (6) This is substantially the same as section 239 of the Municipal Act. The fees payable under that Act are ten ^ 8. 11,SUB-S.l. MANUAL ON VOTERS LISTS. 117 in regard to the matters aforesaid be subject to the directions and summary jurisdiction of the County Judge (c). 11. In order to facilitate uniformity of decision unifoimi- without the debay or expense of appeals : Jfous.'^^*^'' (1) Any County Judge may state a case on coimty any general question arising or likely to arise, offinTu^-^ or expected to arise under ** The Voters' Lists Act " f^n fmm "" or this Act, and may transmit the same to the court of Lieutenant-Governor in Council, who thereupon' ^'^^"^ ' shall immediately refer the said case to the Lieut.-Gov- Court of Appeal or a Judge thereof for the duty!'* opinion of such Court or Judge thereupon {d) ; or :f cents per 100 words for copies of documents. The fees payable for Voters' Lists are at the rate of four cents for every ten voters, or six cents for each copy of the printed hst of voters. See note {g), p. 97. (c) See note (o) p. 80. (rf) Under the Registration of Voters' Act, 6 Vic. cap. 18 (Imp.), electors have a right of appeal from the "express decision" of the Revising Barrister on the validity or in- validity of any vote, to the High Court of Justice, either by one appeal or a number of appeals consolidated, or by a special case, stated by the Revising Barrister. The juris- diction given by this section to the Court of Appeal does not oust the ordinary jurisdiction of the Superior Courts to review the decisions of County Judges as pointed out in note (e) p. 65. Nor would the "opinion" given by the Court on a case submitted under this section be binding upon the ordinary tribunals. The jurisdiction is anoma- lous. It may be noted that the section is permissive as to the proceedings of the County Judge: " may state a case on any general question arising, or likely to arise, or expected to arise," and " viay transmit," etc. But when a '■'.i-;. Hi I ' ■k ii ;,t I- 118 MANUAL ON VOTERS LISTS. [41 Vic. c. 21, ernor maj" (2) The Lieutenant-Govemor in Council may afc^Vo''^ refer a case on any such general question to said ion. Court of Appeal or a Judge thereof, for a like opinion (e). f-i li i 1. ! County Judge initiates bis proceedings under this Act, the section becomes imperative as regards the action of the Lieutenant-Governor in Council, who " thereupon nhall immediately refer the said case to the Court of Appeal ;" and also upon the Court of Appeal, for " upon the receipt of such case it shall be the duty of such Court to appoint a time and place for hearing arguments, " such Court or Judge .shall hear argument," and ^'nhall thereupon consider the said case, and certify to the Lieutenant-Governor in Council the opinion of the Court or Judge thereon." But when it authorizes a voter to apply to the Court (sub-sec. 5), the clause returns to the permissive form and enacts that the Court " may give an opinion on any such question at the instance of any voter." (e) By the Privy Council Act of 1833 (3& 4 Wm. IV. cap. 41, sec. 4), Her Majesty may refer to the Judicial Com- mittee of the Privy Council, for hearing, or consideration, any matter, as Her Majesty shall think fit ; and such Committee shall thereupon hear and consider the same, and shall advise Her Majesty thereon. But it would appear from the reported cases that this jurisdiction has been invoked only in advising the Crown to grant, or refuse, leave to appeal to the Judicial Committee, in cases where appeals do |not ordinarily lie, and in cases which are not strictly appealable grievances. By the Supreme Court Act of 1875, (38 Vic. cap. 11, sec. 52) the Governor General in Council may refer to the Supreme Court, for hearing and consideration, any matter whatever, and the Court shall thereupon hear and consider the same, and certify their opinions to the Governor. This function of the Supreme Court has been invoked only in a few instances^ By the Public Schools Act, 1885, 48 Vic. c. 49, sec. 238, the 8. ll,SUB-8.4.] MANUAL ON VOTERS* LISTR. 110 of or (3) Immediately upon the receipt of Bucljnutyof ease it shall be the duty of such Court or Judge Appeal* to appoint a time and place for hearing argu- ''"'^^"• ments (if any he offered) upon the points and matter involved in such case, of which time and place written notice shall be given by the Clerk of said Court posting up a copy of such notice i'*"ocedure. in the oftice of each one of the Superior Courts at Osgoode Hall, in Toronto, at least ten clear days before the time appointed as aforesaid. (4) At the time and place fixed therefor as court to aforesaid, such Court or Judge shall hear argu- meut^'*^^" ment upon the case by such and so many of tlie Minister of Education, whose duties indicate that tlie Legis- latui'e intended to provide a domestic forum for the settlement of school questions, (Per Burns, J., 10 U. C. K. ■475), may submit a case arising under the Public or High ,'chool Acts (-18 Vic, cc. -19 and 50) to any Judge of the Superior Courts for opinion and decision ; but although that provision has been in existence since 1800, (28 Vic. cap. 40, sec. 23) the only case presented to the Courts, under the Act, was lie Petition of tin- MiiiiKtcr of Kdiication, 28 C. P. 325. Trustees and executors may apply to a Judge of the High Court of Justice (11. S. O. cap. 107, sec. 135) for his advice or direction on certain (juestions affect- ing the trust property. In the United States, the Supreme Court shortly after its establishment was applied to by the President to advise the Government on certain questions affecting the construction of the Treaty with France, of 1778 : but the Court declined on the ground that it could only be called upon to decide controversies brought before it as a legal tribunal, and that the Judges were therefore bound to abstain from giving extra-judicial interpretations, or opinions, on treaties, or questions of law, even though solemnly requested so to do by the Executive. 2 Story on the Constitution of the United Stuten, sec. 1571. ' '*■ ' [ 4 hi- 4\ ■ u ; 5 120 MANUAL ON VOTERS* LISTS. [41 Vic. c. 21, ! i: t : i counsel present (if any) as such Court or Judge may deem reasonable, and shall thereupon con- cortifying sidcr the said case and certify to the Lieutenant- opinion. (Jovfcrnor in Council the opinion of the Court or Judge thereof (/) ; and such opinion shall there- PubiisbiDK upou be forthwith published in the Ontario same. Qazettc, and a copy thereof sent to the Judge of each County Court. vo^ter may (5) The said Court of Appeal or a Judge there- diciai opin- of, may also give an opinion on any such ques- court or tiou at the instance of any voter or voters or Judge. person or persons entitled to be voters, if said Proceed- Court or Judge sees fit ; and the proceedings "^*" with respect thereto shall be, as nearly as may be, the same as upon a case referred as afore - f:-n; (/) The "opinion" of a Judf^o under this section, upon any " general qnostion arising, or likely to arise, or expected to arise,'' will not be binding upon any of the Courts, nor upon the Judge himself. It is neither a judgment, nor a sentence, in rem, or inter partes. A judgment or sentence is a judicial determination of a cause agitated between real parties, upon which a real interest has been settled. In order to make a sentence there must be a real interest, a real argument, a real prosecution, a real defence, a real decision. Per Wedderburn, S. G., in Duchess of Kingston's Case, 20 How. State Trials 478 ; Philpot v. Hunter, 2 H. Bl. 402. The validity of a decree of a Court of competent jurisdiction may be questioned on the ground that it was not pronounced in a real suit, or if pronounced in a real substantial suit, that it was between parties who were really not in contest with each other : Per Lord Eldon, L.C., in Earl ofBandon v. Becher, 3 CI. & Fin. 510. The Judicial Opinions given by the Judges of the Court of Appeal on the quest* , ns submitted by County Judges utider this section of the Act will be found in the Appendix. SEC. 12.1 MANUAL ON VOTERS* LISTS. 121 said, but, in addition, such County or Judge may require a deposit of nu)n('y to cover the costs of bearing the (luestion argued l)y counsel, and Ay require such notice of the proceedings or any of them to be given to such person or per- sons as the Court or Judge may direct ( hi {k) The name of a voter was enteretl on the register of voters for a certain property in a parish, and with a certain post office address. The overseers knowing that he had left the property, and was then occupying another property, altered his qualification by substituting the property actually occupied by such voter. On liis name being objected to, the notice of objection was sent by post to the true address of such voter, and not to his former post office address. The voter contended before the Revising Barrister that the service of the notice of objection was insufficient, but his conten- tion was over-ruled : Held, that the action of the overseers did not release the objector from the requirements of the Act, viz., sending the notice properly directed to the voter at his place of abode as described in the register of voters ; and that as the objector had failed to prove service of the notice of objection as required by the Act, the Revising Oflicer had no jurisdiction to expunge the name of the voter : XoKeworthy v. Buckland in the Moor, L. R. 9 C. P. 233. But see Xorris v. Pt7c;jcr, L. R. 4 C. P. 417. ( ! ■ ^ 1' A ^H !fi S^ H ^!' (?) But the County Judge in correcting the voter's "place of abode," as allowed by sec. 2 of this Act, p. 128, may with- out any appeal or complaint enter opposite to such voter's name his proper post office address. SEC. 9. : MANUAL ON VOTERS' LISTS. 183 '. Instead of the form of Voters' List required New Form ection two of The Voters' Lists Act, the form Li';!!'"'^""^' by sec _ __ ^ ^^^^ ^^^ for such list hereafter to be used and' made' by the Clerk of any township municipality under the provisions of said section two and of this section, and section eight of this Act shall be as follows {m) : [See Schedule of Forms in the Appen- dix] . ^ ^ (m) See note {:,) p. ll-.i, Tne rorni vdll be found in tlie Appendix as "Form 1." fl . m I 'I I i 11 .; , u 134 MANUAL ON VOTERS LISTS. An Act to further amend the Voters' Lists Act. ; i. :.: ■I '' 1 )l 48 VICTORIA, CIUPTEn 3. [Assented to 30th March, JSS5.] HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : Short title. 1- This Act may be cited as TJie Voters' Lists Amendment Act, 1885. Newsec.for 2. Section 2 of The Voters Lists Act and its cap-^^ ^^' sub-sections, are hereby repealed, and the follow- ing is substituted therefor : [See the amended section on jmges^ 2-22 (a)] . Form of 3. The expression "Form 1," in section 2 of L?sM2Vic. ^V their municipal tax on income, according to the following dates : (1) If the collector's roll had been for over one month 111 the collector's hands, then the taxes for that year must have been paid before the date of the writ of election. (2) I *" uch collector's roll had not been for one month in the Collector's hands, or had not been delivered to the collector, then the taxes for the preceding year must have been paid on or before the Slst December of the year for which they were levied. These clauses were repealed by 48 Vic. cap. 2. (e) There is a direct repugnancy between the provisions of the Assessment Amendment Act, 1885 (48 Vic. cap. 42), and ;i ; i 136 MANUAL ON VOTERS LISTS. [48 Vic. c. 3, entered in such Assessment Koll or in the Voters' List based thereon, or to vote or to be a voter in the Electoral District in which said Municipality this Act (48 Vic. cap. 3) respecting wage-earners, both of which Acts received the Royal Assent on the 30th March, 1885. This Act (cap. 3, sec. ('») provides that " any wage- earner entitled as such to be assessed or to have I'is name entered in the Assessment EoU of any municipality, shall be so assessed, and shall have his name so entered without any request 07i that behalf, unless he informs or notifies the assessor to the contrary." But the Assessment Amendment Act, 1885 (cap. 42, sec. 5) provides that " the name of a wage- earner shall not he entered in the Assessment Roll as such wage-earner unless to the assessor, or to one of the assessors, if there is more than one, there has been first delivered by or on behalf of said watje-earner, a written affirmation made and signed by liim,'^ in the form given in the Act. And the section adds : " Such written affirmation must have been so made and signed by such wage-earner in the presence of an attesting witness within one month prior to its being so delivered as aforesaid to the assessor ; and said attesting witness shall subscribe his signature as such to said affirma- tion, and shall add thereto his place of residence and occu- pation.'' In addition to these provisions the assessor has to attach to his roll a certificate under oath, in which he states that he has entei'ed the names of all pers( ns "who have required their names to be -itered therein," and " of every person entitled to be so entered either as a landholder's son, or as a wage-earner." And sec. 10 of the Act cap. 42 re-enacts the words of the above sec. 6, prefixing to its enactment the words: ^^'iubject to the otlier provisions of tJiis Act." With such marked repugnancy between the provisions of two statutes assented to on the same day, and relating to the same right of wage-earners to the Franchise, municipal officers may find it difficult to obey both. The rules applicable to .the construction of such statutes are thus stated : " Where two Acts of Parliament repugnant to i^l SKC. G.] MANUAL ON VOI'ERS LISTS. 137 is situate, shall, iu order to have the name of such landholder's son or wage-earner entered and inserted in such Assessment Roll, or List of Voters, as the case may be, have for all purposes the same right to apply (/), complain or appeal to each other come into operation on the same day, tut. one which hist received the Royal Assent virtually repeals the other:" Ilex v. Middlesex Justices, 2 B. & Ad. 818. When the later of two enactments is couclied in terms which arc negative in form, or in effect, it is diflicult to avoid the in- ference that the earlier one is impliedly repealed by it: Maxicell cm Statutes, 131. Wlien two passaf,'es of an Act are so repnt^nant as to be mutually destructive, the earlier passage gives way to the later, which is taken as in a will, to speak the latest intention : Ibid. 40. " If two parts of the will are totally irreconcilcable, I know of no rule but by taking tlie subsequent words as an indication of a subse- quent intention. The Court is in a dilemma, and cannot act at all unless they do that : " J cr Sir II. P. Arden, M. R., in Sims v. Douijhty, 5 Vcs. 217. The question whether the negative clauses (sec. 5) of cap. 42 have I -en repealed by sec. 10 of the same Act, or by the above sec. (5 of cap. o, will have to be judicially determined. In construing the two Acts it must be borne in mind that though both were assented to on the same day, the above clauses of both Acts were not to come into operation until the 1st day of January, 188t), " except as to any Assessment Roll, or assessment, taken or made subsequent to the 1st day of July next, after the passing thei'cof, under the special provi- sions cf section 4-4 of The Assessment Act ; and with respect to any such last mentioned assessment roll or assessment* and any list of voters based thereon, this Act shall for all purposes, and as regards all matters, liabilities, duties and proceedings therein provided for, be deemed to come into force and have etttot on and after said 1st day of July." See sec. 12, post, and sec. 18 of 48 Vic. cap. 42. ( ?') See notes p. 82. jiilii i > r m 188 MANUAL ON VOTERS LISTS. [48 Vic. c. 3, any Court or to any Judge in that behalf, as such landholder's son or wage-earner would or can have personally, unless it is made to appear to the Court or Judge that such Landholder's Son or wage-earner actually dissents therefrom. R.s.o.cap. T*. Section 10 of The Voters' Lists Act and its pealed. '^^sub-sections are hereby repealed, and the follow- ing is substituted therefor : [See the amended section on pages 51-58 (g)] . Time for 8. For the purposo of complying with the sion of list provisious and requirements of sections 3 and 4 Ks.o. cap. 0^ '^'^^ Voters' Lists Act, the Clerk of any city 9, 8s.3«&4. shall hereafter have forty days instead of the thirty days in said section 3 mentioned (h). U: ^ t R.s.o.cap. O. Section 5 of The Voters' Lists Act is hereby repealed, repealed, and the following is substituted there- for : \Sec the amended section on pages 28, 29 (i)] . RS.o.cap. lO. Section Oof The Voters' List Act \?>\\eYQhY amended, amended by adding thereto the following sub- section : [See the amended section on page 51 {j)] . *'™ {g) See section 10 and tbo notes thereon, pp. 51-58. {li) This gives Clerks of Cities forty days after the final revision of the Assessment Roll, for the preparation, print- ing and posting of the Voters' Lists for such cities. See p. 23. (i) The only amendment made by this substitution is that the certificate of the Clerk shall show that the list contains the names of persons entitled to vote at elections for the Legislative Assembly, " and at municipal elections in said municipality." See p. 28. (?) See note (c) p. 51. 8. 12. SUBS. 1.] MANUAL ON VOTERS' LISTS. 139 !!:;'! 11. (1) From and after the passing of this coustruc- Act, and until the preceding sections of this Actit^s.o. are in force, section 2 of The Voters' Lists Actll^;2^' shall be read (A) : (a) As if the word "male," where it firstly occurs in said section, were omitted therefrom ; and (b) As if before the word "appearing," where it occurs in sub-section 3 of said section 2, the words " and of all widows and unmarried women of full age and subjects as aforesaid " were in- serted therein {I). (2) Said section 2 shall be read and construed as if this section had been in full force and effect on, from and after the 25th day of March, 1884. 12. The several sections and provisions of com. this Act shall come into force and have effect as meut of follows : '^'^^• : C [*7r rf! ^ ^^^ 1 1 : mi. <■ » i '< 'm ' (1) Section 11 shall come into force and have effect from and after the passing of this Act. ■ (A) The effect of this clause — which came into effect '' from and after the passing of the Act," — was to make the special amendments noted in it, operative on The Voters' Listii Act (R. S. O. cap. 9.) before the other amendments made by this Act came into effect. (/) The Municipal Amendment Act, 1884 (i7 Vic. cap. 32, sec. 3) conferred the municipal franchise on " widows and unmarried women," but made no provision for the entry of their names on the Voters' List. The above amendment was intended to remedy that defect in the legislation of ISSi. liH ' K: i i i 140 MANUAL ON VOTERS' LISTS. [48 Vic. c. 3, (2) The remaining sections and provisions of this Act shall come into force and have effect on and after the first day of January next after the passing thereof, except as to any Assessment Roll or assessment taken or made subsequent to the first day of July next after the passing there- of, under the special provisions of sections 44 of The Assessment Act; and with respect to any such last mentioned Assessment Roll or assess- ment, and any list of voters based tliereon, this Act shall for all purposes, and as regards all matters, liabilities, duties and proceedings there- in provided for, be deemed to come into force, and have effect on and after said first day of July {)ii). (m) The apparent effect of this clause is to make the Act operative in respect of the making of the Assessment Roll and of the classes of persons to be entered thereon, in municipalities where the Assessment Roll is prepared between the 1st July and 30th September under section -l-l of the Assessment Act. A similar clause appears in The Assessment Amendment Act, 1885, sec. 18, sub-sec. (2). See note (e) p. 4, and note {e) p. i;^5. i MANUAL ON VOTERS LISTS. 141 t An Act respecting Elections of INIembers of the Legislative Assembly (a). REVISED STATUTES OF ONTARIO, CHAPTER 10. HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : 1. 'J'his Act maybe cited as ''Tlte FAectionfihortritie Act,'' or " Th . Election Act of Ontario " [h). i (a) Only those sections of the Election Act and The FranchLse and Representation Act, 1885, which define the quaUfication of voters at Legislative elections, are here given, as the other sections relate almost exclusively to the procedure at elections, and the definition of and penalties for corrupt practices. {b) The theory of our political system is that the ultimate sovereignty is in the people, from whom springs all legiti- mate authority. In England, where the people do not debate in a collective body, but by representation, this sovereignty consists in the election of representatives : 1 111. Com. 170. In the election of knights, citizens, and burgesses consists the exercise of the democratical part of our Constitution ; for in a Democracy there can be no exer- cise of sovereignty except by Suffrage, which is the decla- ration of the people's will. In all Democracies, therefore, it is of the utmost importance to regulate by whom and in what manner the suffrages are to be given : Ibid. Prior to the early statutes regulating the franchise for Parliament- ary electors in England, a franchise had been sanctioned by I' ') ' ' ■s ■■ ■ Jiilj 142 MANUAL ON VOTERS LISTS. I^R.S.O. c, 10, interprota- 2, [As amended by 48 Vic. cap. 2:] Unless otherwise declared or indicated by the context, In f .; ! : J '■;,■, i ! ■ : 1 the Common Law of Parliament, which was more liberal and more nearly akin to " Manhood Suffrage" than it has been since. By that common law franchise, " every inhabi- tant and commoner in every county had a voice in tlie election of knights, whether he were a freeholder or not, or had a freehold of only one penny, sixpence, or twelve pence by the year :" Prynne's Brevia Parliamcntria (1002) 187. "The common law placed all elections in the hands of the people:" Hudson on Electioiis. And the only qualification required of Parliamentary electors was residence in the couucj'^ : ± it Henry V, cap. 1. The return by sheriffs on many Parlia- mentary Writs in 18 Edward II, is that " the election has been made by the assent and will of the 7nen of the whole county :" Pahirave's Parliamentary Writs, 319. In 1429, the Act 8 Henry VI. cap. 7, defining "what sort of men shall be choosers and who dhall be chosen Knights of Parliament," established the rule that an elector's political intelligence and qualification to vote should be guaged by the value of his property ; and it required that electors should be residents and have a property qualification as freeholders to the value of 40s. in the county. The preamble recites, with a piii'mess of speech not to be found in modern Acts, that " whereas the election of knights of shires to come to the Parliaments of our Lord the King in many counties of the rerlm of England, have now of late been made by very great, outrageous, and excess- ive number of people, dwelling within the said counties, of the which most part was of people of small substance and of no value, whereof every of them pretended a voice equivalent, as to such elections to be made, with the most worthy knights and esquires dwelling within the said counties, whereby manslaughter, riots, batteries and divisions among the gentlemen and otlier people of the same counties, shall very likely rise and be, unless convenient and due remedy be provided in this behalf." " It is not clear whether any landed or freehold qualification was requisite to entitle a s. 2, suB-3. 1.] MANUAL ON VOTERS* LISTS. 143 wherever any of the following words or expres- sions occur in this Act, they shall have the [■isvic.cap. meanings hereafter expressed (c), that is to say : '^*°" "^ 1. The word "owner" (d) shall signify and owner. y a person to vote at elections before this statute :" Simeon on Elections, 13. " This was the first statute which required a qualification of landed property, or, to speak in a manner more strictly constitutional, which deprived persons in a very low and dependent situation of the exercise of the privi- lege of voting :" Ibid. 59. " This statute first required the elec- tors to have a qualification of freehold to a certain value, there- by, as some think, restoring the aristocratic spirit of the Con- stitution, which had been lately broke in upon ; or as others assort, making an inroad upon the liberties of the people by depriving the lower class of a privilege they had always enjoyed before :" Heiwood on Elections, 23. " The statute (8 Henry VI.) presents a strong contrast to the legislation of the preceding reigns. The policy of former Parliaments had been to secure the whole body of the county population in the free and independent exercise of their electoral rights. Several reasons are assigned in the preamble for restricting the franchise. The true grievance appears to have been, not the mere number of the lower class of electors, but that their votes were of equal weight with those of persons of gentle {gentil) condition :" Cox's Ant. Parly. Elections, 113. (c) See note (6) p. 102. (d) A similar definition of " owner" is given in the Muni- cipal Act (K. S. O. cap. 174, s. 76) and in the Assessment Act (R. S. O. cap. 180, sec. 20, rep. 1885.) The word " freeholder" appearing on the Assessment Roll pursuant to the Assessment Act, shall, for the purposes cf the Voters^ Lists Act, mean "owner:" (R. S. O. cap. 9, sec. 33). In the Mechanics' Lieii Act, R. S. O. (cap. 120, sec. 2,) the term " owner shall extend to and include a person having any estate or interest, legal \ m ' ! f !i 144 MANUAL ON VOTERS' LISTS. [K.S.O. c. 10, mean proprietor, either in his own right {c) or or equitable, in the lands upon or respect of which the work is done," &c., and all persons claiming under him, whose rights have been acquired after the work, ci"C., is com- menced. In the lUtihcaii Act (11. S. O. cap. 105, sec. 3) " owner shall be understood to mean any corporation or persons wlio would, under the Act, ttc, be enabled to sell and convey the lands to the company." In the Assessment Act (II. S. C). cap. 180, sec. IBD) the words " original owner shall include and extend to any person who at the time of such sale (for taxes) was legally interested in the said land sold, and all persons claiming through or under him." In the Fuhlic Schools Act, 48 Vie. cap. 4'J, sec. "2, " owner shall includ' a mortgagee, lessee, or tenant, or other person enti- tled to a limited intei'est." The word " owner" is a modern term in titles to real estate; but it is here used as a definition of a class of voters, rather than as indicating a person having a perfect or absolute title in fee simple. In the language of the law every possessor of real property is a tenant ; as tenant in fee, tenant in tail, tenant for life, tenant for years, or tenant at will. The tendency of modern law has been to drop the theorj' of feudal service in the tenure of lands, and to provide that lands shall be held by allodial tenui'e simply. " Tenant in fee simple is he who hath lands to hold to him and his heirs for ever ; and it is c;i,lled in Latin /((vZhhi simplex, iov nedum is the same that inheritance is ; and sim2)h'x is as much as to say lawful and pure :" 1 Co. Lift. 488. Tenant signilleth the tenure or the service whereby the lands are holden ; and because such services were done with their ploughs this tenure was called tenure in soccage : Ibid. 3.31. All the lands or tene- ments in England in the hands of subjects are holden mediately or immediately of the King : for in the law of England we have not properly allodium, that is, any sub- ject's land that is not holden : Ibid. 488. (e) " Proprietor in his own right." These words in the several classes of the real property qualifications under this }, StJfl-S. 1. MANUAL ON VOTERS LISTS. 145 jne- deu of lub- the ;his Act exclude trusteGa.or persous liolding the dry lo<,'til estate iu lands without any beneficial interest therein. Trusts were unknown to th!> Vic, cap. 18, sec. 7-4 (Imp.) enacted that no mortgagee should vote unless in actual possession or receipt of the rents and profits, ijut that the mortgagor in actual possession or receipt ff the rents and profits might vote ; and that no trustee should in any case have a right to vote at any election by reason of any trust estate ; but that the centui que trust in actual pos- session, or in receipt of the rents and pr'^fits, tliough he receive them through the hands of tlio trustee, miglit vote. A trustee under a will, who has no beneficial estate or interest in the prpoerty assessed to him, is not entitled to vote: South Grenville (Jones's Case), 11. E. C. 1G3. Mort- gagor or mortgagee, if in possession, may vote : 1 Hteplien* on FJectioU'^. !57. Mortgagor out of possession, where the pro])erty was of greater value than the mortgage : Held, entitled to vote: Middlesex {Chase's Case), 2 Peck. 103. Besides trust estates which do not confer the right of voting, there is a class of trust estates in which the chief beneficial 10 ^1^ hi r b '. '•! H i ■*. li. I : .f 146 MANUAL ON VOTERb' LISTB. [R.S.O. c. 10, In right of in the right of his wife (f), of an estate for wife. *^ '' ^* interest passes to the trustee ; such aa estates conveyed to a lender in trust for the repayment of money, and which were introduced to obviate the inconvenience arising from the common law of mortgages, and with a view to tlie remedy by sale. From this two classes of securities have arisen : (1) one an absolute conveyance in fee, or for years, without any condition for re-entry for nonpayment, but with a covenant, or proviso, requiring the lender to re- convey on payment of the debt. This, for want of a more appropriate name, is called a mortgage; (2) the other, a conveyance by the borrower to the lender, or his nominee, in trust to sell if the debt is not paid after a certain period. In legal strictness both securities are merely conveyances in trust, the party to whom the legal estate is thus conveyed is properly a trustee. The enactment of 10i)6 may there- fore be thus paraphrased : No creditor will be allowed to vote by reason of any such c^onveyanco upon trust, unless such creditor, so being trustee or mortgagee, be in actual possession or receipt of the rents and profits of the estate : 1 Stephens on Elections, loO. Where land was granted by letters patent to A, her heirs and assigns for ever, to have and to hold to her the said A in trust for herself and her children M and F : Held, that A took the fee, and that no legal estate passed to the children : Goldie v. Taylor, 13 U. C. Q. B. G03. (/) " Proprietor in the right of his wife." The phrase "in the right of his wife ' ' first appeared in the Parliamentary Franchise Act of 1859, 22 Vic. cap. 82, sec. 23, and in the Municipal Act of 1849, 12 Vic. cap. 81 ; and it has been con- tinued in subsequent Acts on the same subjects, notwith- standing the legislation which under the Man-ied Women's Property Acts have divested the husband of all estate in the real property of his wife. This definition given above is based upon the rule of the common law that a husband by his marriage acquired a freehold interest jure uxoris during the joint lives of husband and wife in his wife's freehold for ?*fi 8. 2. BCD-S. 1.] MANUAL ON VOTERS* LISTS. 147 hrase ntary the con- with- Bnen's n the ■)ve is dby uring Id for life, and lier freehold of inheritance, even before the birth of issue: Dn'ijhfs II. ct IT. 112. That wliere an cHtate in fee comes to a, feme covert, tlie interest of the husband and wife in the estate is a seisin in fee in both, in right of the wife : Pohfhank v, Hawkins, Doug. H2*» And upon his having issue by lier born aUvo who could inlierit the estate, he becomes tenant by the curtesy, which entitles him to an estate in his wife's freehold for his life after the death of his wife : 1 BrighVs II. <£• IV. 11(5. But if the husband is an alien, he will take no interest in his wife's real estate : Ibid. '.). Nor will he, while an alien, be entitled to any tenancy by the curtesy thei'ein : Ibid. 125. Nor will an alien acquire any right in his wife's leaseholds : Theobald v. Dnffotj, \) Mod. 104. In a Court of Equity (though not in law) baron and feme are considered as two different persons : 'A P. Wmii. '^H n. Where a gift was made, or an estate was conveyed, to a luisband and wife and a third person, the husband and wife, being in legal fiction one person, took only one-half of the gift or estate, and the third person the other half : 1 Co. IJtt. 730 ; Dias V. DeLivera, 5 App. Cas. 185. Where a married woman obtained a grant of lands under letters patent from the Crown, her husband need not have entered upon the land in order to entitle him to tenancy by the curtesy, the letters patent nuo viyore constituting seisin in fact : Wearer v. Bur- gess, 22 U. C. C. P. 104. A grant to a married woman of a life estate in lands does not require the assent of her husband to pass the title to her ; and unless he repudiate it in some way, both will be seised in her right : Solan v. Fo.v, 1(5 U. C. C. P. 5(55. Though a man has been in possession for twenty years of lands granted to his wife for life, he does not thereby acquire a title by virtue of the Statute of Limi tations, for he is merely seised with her, by operation of law, of her estate therein : Ibid. Where it is sought to establish a marriage by repute, it is essential that such repute should be general and uniform ; a divided repute will not suffice : Henderson v. Weis, 25 Gr. G9. Where recent Ontario legislation has not altered thecorrmon law doctrines respecting the property of married women, the right of the husband to vote as " proprietor in right of his wife " will be M ;!i^ p 148 IMANTAL ON VOTKTiS LISTS. ^n.H.O. i:. lit, fi'i ' i I t III '■.*'■ Hf (?o\ eriTHl by tho old rletJiMionH. 11 v tho common law tlio Iuih- b.Mul 1j;i« tho vijjjlit to Vt)to in renpuct of liis wife's fricliohl pi'tii't/rty, iiH liriv'iii;,' ae(juirc(l tho OHliito by ti:.iiTin;^(;; lldficru on A7('c//(i«.v, 15!). tin that if ini cHtuto rdionhl deHooiul to any uuiiibor of fomaleti tho luiHband of each would havo a rifjht to vote : 1 Cn. [jitt. f)\). A Iiusbaiul, while poHsossfd in tho rif^ht of his wiff, has the Hamo n^lit of voliii^' as if potiHessed in luH own rif^'ht : I StrpJii'iis on Klci'tioni^, r)Vi\, lint in all those cases of freeholds jiirv u.rori.-^ it is tho licnrjirial free- hold, not tho mere lo^^al estate, which confers the vote on the luislmnd ; Ibid. rdO. Where the inarriaM<- bad taken ])laco before tho Married Women's Property Acts, and the hus- band's ri<.;bt had become a vested interest in his wife's real estate, liis occn[)ancy of sucli real estate woultl irive him the enjoyment of the revenues and profits tliereof Uiv Ids own use in rij^ht of his wife. " TT])on such marria,!.^e the liusband became entitled, by tho law of ]'in;,'land, t,j tho rents and profits of the wife's estate durini; tho pint lives of the two:" Per Nortli, J., in Fuirkc v. Drmjcott, 2',) Ch. J). W.V,). Prior to the changes made in the common lav/ doctrines by tho Married Woman's Property Acts, a husband excluded by a marrias^e settlement from all interest in bis wife's estate. could not vote ; Roricrx on Elections, .35. Where, by a mar- riage settlement, property is vested in trustees for tho sepa- rate usfj of the wife, or wliero property, after the marriage, is conveyed or devised to trustees for tho separate use of the wife, the husband takes no interest in such property, and can by no means vote in respect thereof ; F.IUott on I'tirh/, Kh'ctorn, 15. So wliero the intention appears that tho property bequeathed to, or settled upon, tlic wife should be to her sole and separate use, whether given to her without the intervention of trustees, or to her husband for her, a Com't of I'iquity will effectuate the intention by converting the hus- band into a trustee for the wife : Ibid. Where there is a settle- ment to a wife's sepai'ate use, the husband acquires no intei'est in her property : Scarborough v. Barman, 1 Beav. 34 ; s. c. 4 Jur. 38. And such settlement to her separate use, though made while she is discovert, is good against an after-taken husband : Tulh'tt V. Armstromi, 4 My. it Cr. ;i77 ; s. c. 4 Jur. 34. No S. 2, HIMl-S. 1. I I^lANTAli ON VMIMUS I.IS'i' 149 tochiiical word* ai'o uoocsmiry to r:iis<.« a ttiist for siioli s9[):irato UHo : '.) •lann. Cdiii'i'ij. 102. " Kiijoy the pfolita," imply ;>'|)ariito uhc : Tijrrcll v. Hopi\ 2 Atk. H('»l. Ho, " to ho at hor own dispoHa! :" Pritrlntrd v. .liiw-i, T. Yes. .')!(). Whore the property iH sepai'ato est.i.to, the wlioh; rt;ve;uie9 and prohts boion<4 to the wit'o as if sli;; were; Kale, or iniinar- ried. And should tlie husband claim jv proprietary ri^htin Huch properly of his wi'o. tliM wife is eiitiil<'d to an injunction I'e.-itr liniui; him fi-om a-.:4'jrti)i;( ii.ny Kuch ri^'ht, or from intorfuriu^ with lier property : S;/iii:ni(h v. Udllett, 2K'h. 1>. ;M<">. Whero owj (J. m irried a wiilow who was entitled to an estate tail, an 1 pi'cviom to the m.irria^o C. and his in- tended wifo joined in a deed to V. as truatoo, in which ('. covenanted with the triistee V. that the renti and profits should remain to the separate use of the wife, that tin; v/ife mi^^ht dispose of the estate, and Mi it he wonld join in all necessary acts for rendering,' Iit disposal v.ili 1 : it v.iis contended that, as C had no ri.L;ht to receive any profits from the land, it could not he said that he had ai.}- froehold which would entitle him to vote : Jleld, that C. had noriiiht to vote: Hcdfardnltirf, iCtiiiqiiext'ti (.OH'], 2 Lud. i22. As C. had no rij^ht to receive any profit from the land, it could uot be said that he had a freehold of tlie value of iOs. a year, and iip<)n this j^round tl\e vote was rejected : 1 Ste}>hciis on Elections, 51(5. Wliei'e the wife's estate was assessed in the name of the wife and of her tenant, it was held that the husband could not vote: Hetlfonlsln're, iHrasier's C(it■ 1 .IC i s i r 1 1 i 152 .MANUAL ON VOTERS LISTS. [R.S.O. c. 10, from interferiiif,' in lier busir.' ss, or removing any of her chattels ; and she may also, under ^certain circumstances, have an injunction CAcIuding her husband from the house : Doiiiii'lh/ V. DoiineUij, O. ]i. G73. And where the husband is not roally desiring to use or to enter the house as a husband to enjoy the society of his wife, or to consort with her as his wife, an injunction will bo granted to the wife restraining her husband f' mi the proprietary use of the house: Stjmninh v. HnUett, 24 Ch. 1). iMO. "The old fashioned notion that women need legislative protection, even against their husbands, is fast fading in the light of modern legislation : " Per Harrison, C.J., in Kerr v. Stripp, 40 IT. C. Q. ]3. i;)-4. " The right of possession of the property to which a wife is entitled to her separate use, is an exclu- sive riglit against her husband ; and, whatever his rights are, he cannot authorize anybol}' to intrudt) on the possession of his wife's separate property :" Per Lindley, L. J. in WeJdon V. DeBatJie, 11 Q. 13. D. 'Am. Qceiire, if the husband has himself the riglit to enter such property : Ihid. A husband is entitled to maintain an action against his wife, and to charge her separate property for money lent to her, or money paid for her, at her retjusst, after the marriage ; but not for moneys lent or paid at her request before marriage: Jtiitler V. P.utlcr, U Q. B. D. mi. Under tlie Consolidated Muni- cipal Act, 1B83, 4() Vic. cap. 18 sec. 7o (O.), providing that the persons to be elected Mayors or Aldermen of a city should have at the time of the election, " in their own right or in the riglit of their wives, as propi'iotors or tenants, a legal or equitable freehold or leasehold :" 7/(7.7, thiit this qualification as to property held in right of the wife had come down from a state of the law which was radically different from the i)resent law as to the property of married women : and that the respondent who had no estate of freehold or leasehold of his own, but whose wife hold at and subse- quent to the municipal election a leasehold property sufticieiit to give the statutory qualification, and of which the respon- dent and Ids wife were in possession, was not qualified to be elected as Mayor : Reg. e.r rel. Felitz v. Huwlditd, 11 Pr. 1'. 2('A. In 1881) the above iNIunicipal Act was amended by providing that the wife's property should qualify the husband to bo S. 2, KUI3-S. 1. ?>rANUAL ON VOTERS LISTS. 15S life (//), or any greater estate either legal or equitable (/<). elected to municipal office : 40 Vic. cap. 37, sec. 2. The result of the several cases here annotated ap})ears to establish the ;"• .lowing canons in frtaichise law: (I) That where the wife's real property has been settled upon her as " separate estate " or to her " separate use," the liasband acquires no beneficial estate in such property, " in rif_;ht of his wife," a; ! :. '^. thercfoz-e, no vote. (2) That recent On- tario legislation has made the wife's real property "separate estate," and has diA-sied the husband of all estatf^ a'ld interest in his v.-ifi/s real property ; and having ther-More );o beneficial estate or interest in such property he hati uov • no right to quaiif}' as a voter, or to vote in res. pect of such real property. (3) That such legislation affects marriages contracted, or property acquired by married wome!i, since 1K72 ; but Udt property acquired by the married woman nor the husband's right to vote as incident to his estate in such property which had become vested in the husband, prior to that date. See furtiier note (k) to tlie clause defining "occupant." (//) " An esta.te for life." Tiie most ancient of estates is an estate for life. A grant of land to A. B., without any words of limitation, is the grant of an estate for life. A tenant either for his own life or for the life of another {pur mitre r/t'), hath an estate of freehold; and lie that hath a less estate cannot have a freehold : 1 Co. Litt. (528. All estates which may by possibility last for life although they maybe determined before the life e.xpires, are freeliolds ; 1 Co. Litt. G2f^. As an estate granted to a widow during widowhood though determinable on her marrying again. Tlie follow- ing are estates for life : A grant to a man and woman during coverture. So long as the grantee dwells in such a house. So long as lie pays a ccitaiu sum. A tenancy by the curtesy. Ibid, 021. One in possession of a house by virtue of an office for life : Soiie v. Aslituii, 3 Burr. 1287. The husband of a co- parcener may vote : J}eiI/(inLiJi i re {Sout li ici'ir ^ tV/.s«'),2Lu;l. 117. 1 m ■'"■^'1 •\ ii w 154 MANUAL ON VOTERS LISTS. IR S.O. c. 10, Prior to 1780 the practice was to exclude the votes of those who had married widows entitled to dower, where the dower had not been assi^ied to them by metes and bounds : Glouces- tershire, Heywood 5(5. The 20 Geo. III., cap. 17, sec. 12 (1780), provided that when any woman, widow of a tenant in fee, and entitled to dower, married a second husband, such second husband should be entitled to vote in respect of such dower, although such dower had not been assigned by metes and bounds, provided he was in receipt of the profits of such dower, and that the estate from whence the same issued was rated, and contributed to the land tax. Whether this statute, being one relating to "civil rights," is in forra in Ontario under the Upper Canada Act, 32 Geo. Ill, cap. 1 (R. S. O.cap. i)2), has not been judicially determined. Prior to the recent Married Women's Property Acts, by the rules of the commim law a husband by his marriage acquii'ed a freeliold interest jure uxoris during the joint lives of hus- band and wife in his wife's freehold for life, and her freehold of inheritance, even before the birth of issue : Jirighfx II. tO W. 112. And upon his having issue by her born alive who could inherit the estate, he became tenant by the curtesy, which entitled him to an estate in his wife's freehold for his life after the death of his wife: 1 Brifiht's H. <(: W. IIG. Estates by the curtesy and in dower are estates for life, arising as they do out of mar- riage, and those entitled to such estates in right of their wives, may vote without occupation : Roijers on Elections, 9. Tenants by the curtesy vote as freeholders : Chnmhers on Elections, 8G8. Lands were conveyed to the father and mother of A. for life, with power of appointment. They jointly appointed to A. in fee. This was held to operate as a good appointment of the father for his own life, and so A. had a freehold and might vote : Gloucestershire, Heywood (51. The reversioner of a freehold, if the estate is let for life, cannot vote at elections ; but he may vote if the letting is for a term : Oinmhers on Elections, 50!* : Hvi/wood on Elections, (50. A father, by his will, bequeathed his estate to trustees to pay out of the profits so much per week to his son J., and the reversion to his son T., on the death of J, : Held, 10, s. 2, SUB-S. 1.] MANUAL ON VOTERS' LISTS. that J. had a right to vote, but T. had not : Ibid. (Vi. Where an annuitant was put into possession of the estate charged with the annuity : Held, entitled to vote : Bedjovshire {lion- fiehVii Case), Ibid. 440. A charge on lands for support and maintenance during life, gives in) legal estate in the lands : Gilehrist v. Jiiim.finj , 27 U. C. Q. B. 500. A minister of a congregation occupying premises, " during his life if he should so long continue minister," has an equitable estate for life: Burton v. Brooks, 11 C. B. 41. So bedesmen of an hospital appointed for life and occupying the hospital : Simpson v. IVilliinson, 7 M. tt Gr. 50. lUit not when tiie trustees have power to remove the inmates as tliey saw fit : Davis V. Waddington, 7 M. it Gr. ;J7. 155 (/() " Equitable estate." An equitable estate, but not an equitable right or interest, in lands confers the right to vote: Elliott on Electors, 53. Courts of Equity consider that which is agreed to be done as actually performed. So where a person has agreed to sell, and another has agreed to pur- chase, certain premises, the vendee being put into posses- sion of the estate by virtue of the agret-nit^'nt ; or becoming otherwise entitled to a specific performance of the contract ; or when the vendor becomes a trustee for the vendee to convey to him the estate, the vendee has such an equitable estate as gives him a right to vote : Seton v. Slade, 7 Yes. 2H5; Jenninpsv. Robertson, 3 Gr. 513. But conditions may be introduced by which the vendee will not acquire an equitable estate: Levy v. Lindo, 3 Mer. 81 ; Kinri v. Kinci, 1 My. A' K. 442. The question in the cases affecting the right of vendor or vendee, to vote, seems to be : who is to have the rents and profits of the estate, by virtue of the agreement, until the legal conveyance is made; or who must bear any loss which may happen, or be entitled to any benefit which may accrue, to the estate, between the agreement and the conveyance ? Rogers on Elections, 33. If the vendee is in a position to compel a conveyance in a Court of ]']quity ; if he has paid liis )uirchase money, or a part of it. under an arrangement with regard to the remainder, and has Ijcen let into posses- sion, which generally speaking amounts to an acceptance of ^ III i!i 156 MANUAL ON VOTERS LISTS. [R.S.O. c. 10. I:;, , the title, little donbt can exist of his ri^ht to vote : Ixixjers on Elections, 3L Beiiij^ in possession uncUu' a contract, whether it he for the fee or a term, a purchaser ih- in either iia mortj^a^'or or ccstiti ([Uf trust : Moore v. Carisbrooke, 12 C. ]i. nm. If there be any doubt as to wV.at a Court of Equitj'' would do, the vendee should bo treated as liavin;^ an inchoate ri^ht merely, but not an eiiuitable estate : Ih'x v. (rC'I'liiiiitnn, 2 ]?. Jc C. 12'.t. Or th;'>,t he has no estate, but an eijuitable right merely : lle.v v. JAantUlio (froMfn)ii/, 5 15. ct C. 401. " A contract for valuable consideration, by which it is agreed L > make a presant transfer of property, passes at once the beneficial intorest, provided the contract is one of which a Court of Ecpiity will decree specific performance. In the language of Lord Hardwicke, the vendor becomes a trustee for tho vt-ndeo :" iVrLord Westbury, L. C., inHolroyd V. Marshall, 10 II, L. C. liO;). A. made a contract in writing for the purcliase of certain lauds, and paid the whole amount of the purchase money, but the conveyance was. at his <<\vn retjuest, delayed. The land was unlet, ami lie had not ti'.ken possession of the land, nor exercised any acts of ownership thereon, he having allowed the vendor to remain in actual possession : Held, that A was not entitled to vote: Aiit'hn/ v. I.ciris, 17 C. B. Hl(5. Tiiore must be an actual possession, or receipt of the rent and profits. And it could not have been the intention of the Legislature to give to a person, who has a mere equity, a right of voting which the same person would not have had unless he had acijuiixd a complete title both at law and in equity : I'cr Jervis, C. J., Hn'd. A bare permission to receive the rents and pi'ofits of an estate unconnected with the legal interest in it, gives no right to vote; as where a voter has sold his estate to a person who at the sale executed a bond to permit him to receive the rents and profits for life : Held, that he had no right to vote : (jloKceHtersltire, 1 Stephens on Elections, -!")(). So where a father alleged that the son vir- tually owned a certain unoccupied lot, of which he had no deed ; the father collected, or at the flnal revision of tlie roll, he was not entitled to vote : I'/id. (C«/k'//'.s Citsc). Wh.ere a voter assef^sed for pr(>[)erty sold it before the revision of the Assessm.ent Roll, Ii.j was, Htdd, not entitled to vote: SoiitJi fliynrilh' (Pldce's Cane), R, E. C. 168. Where the father had made a will in liis son's favor, and told tlie son if he would work the place and sup- port the family he would give it to him ; and tlie entire management remained in the son's haiads from that time, the property being assessed in both names, the profits to be applied to pay the debts due on the place : Ilrld, that as the under .anding was that the sou worked the place for the ; n.: Iff'! ■l) III 158 [I , \i MANUAL ON VOTERS LISTS. Tr.s.o. c. 10. support of the family, and beyond that for the benefit of the estate which he expected to possess under his father's will, he did not hold immediately to his own use and benefit, and was not 'entitled to vote : StorvKDit {IVeort's Case), 11. E.C. 21. Where the owner of a lot told his son that he might have the lot, and to get a deed drawn, and the lot had been assessed in the son's name for some years, and was rented by the father to a tenant with the son's assent, the rent being paid to the father : Held, that as there was nothing but a voluntary gift from the father to the son, without possession, the son's vote was bad : South Grenvillc {Lunthfs Case), II. E. C. 103, Where a father, who resided on the lot, had made a will of the lot in favor of his son, who was assessed for it, and the son took the crops, except what was used by the father — the son residing on another farm : Held, the son had not such a beneficial interest in the lot as would entitle hiiii to vote; Ibid. {Mullins Case). Where A, who resided out of the riding, had made a contract to sell certain land to B, who was in possession of the land, but the deed had not boon executed : Held, that A was a mere trustee for B, and had no right to vote: Ibid. {IIoldeu\i Case). Where the property of an intestate was sold under a mortgage, and the deed made *o his widow, but three of the sons furnished some of the pi.vchase money, all being in possession, and the eldest son being assessed, it was Held, that, as the pre- sumption from the evidence was that the property was bought for the widow, and not for the eldest son, he had no vote : Ibid. (Morrow's Case). The receipt of rents and profits of an estate by one who is a stranger to the estate will give him no right to vote, nor will it deprive the real owner of his vote : Gloucester, 1 Stephens ou Elections 457 ; Bedford- shire (Trotmaii's Case), 2 Luders 131. Where a person assessed for land of which he had no title from the Crown, or by a tax sale, leased it to another, the fee of the land being in the Crown: Held, not entitled to vote: Lincoln (2) (Clark's Cate), H. E. C. 500. When the estate was devised to trustees to sell, for the payment of debts, and the surplus to be divided between A (the voter) B and C, and the estate had not been sold ; it was argued that the remainder men s. 2, sun-8. 1. MANUAL ON VOTERS LISTS. 15U took an equitable interest : Held, vote good : Middlesex (Rice's C(ise), 2 Peck. 100, When an estate has been devised to T in trust to pay legacies to the younger children, and T refused to take the land subject to the trust, but the younger children, with his consent, took possession of the land in satisfaction of their legacivis : Held, they were purchasers for a valuable consideration, and that they were entitled to vote: Ibid. (Smith's Case), 2 Peck. 421. "Where a grantor conveyed an estate to trustees for the payment of debts out of the rents and prolits, and to be re-conveyed when they were all paid, but at the election such debts had not been paid: Held, that the grantor was not entitled to vote: YorksJiire, Heijirood on Elections, 108. Where a testator directed his real estate to bo sold and the pro- ceeds divided amongst his children, the cliildren verbally agreed among themselves not to convert the property, but one of the childi*en was a married woman having in- fant children : Held, that no election to extinguish the converting trust could bo made, and therefore the testator's sons had not a legal or equitable estate in the land which would qualify them to vote : Spencer v. Harrisun, 5 C. P. D. 97. Where the estate is under a trust for sale, the qualifica- tion to vote remains so long as the estate can legally be kept unconverted, but no longer : Ibid. An administrator cannot qualify on real estate, assessed in his own name, but belong- ing to the estate of the intestate : Retina ex rel. Stock v. Dai'is, '6 U. C. L. J. 128. The equitable interest in a term of years confers the right to vote : Vance's Case, Ale. Reg. Ca. 269. But such equitable interest cannot arise until the time for granting the lease has arrived : Trotter v. ll'atson, L. R. 1 C. P. 431. An equitable life estate in land gives the right to vote : Roberts v. Fercival, 18 C. B. N. S. 36; Roberts v. Drewett, Ibid. 48 ; although there may be no legal convey- ance of the estate, as in the case of a freehold interest in Benchers' Chambers in Lincoln's Inn: Middlesex (Ansteifs Case), 2 Peck. 109 ; or as in the case of an equitable freehold in lands held by the perpetual curate or incumbent of a parish : JVallis v. Birks, L. R. 5 C. P. 222 ; or by a minister of a congregation under the trusts of a deed: Burton v. J(;0 MANUAL ON VOTHKS' LIHTH. [U.H.O. C lU, Occupant. 2. Tlio woi'd *' 0(.'cui)aiit " ( /) shall sii^iiify and /.'rao/M, 11 C. B. 'U, s. c. K) Jiir. '>m. Seo mittnt. Collin' v. Kill!!, 11 C. B. N. S. 11, H. c. 8 Jur. N. S. i\li). But iiuL iu respect of a cluircli or coinetery, altliouyli the fees I'eceivod th(!rofi)r may bo within tho valuo prcsc;ril;o(l, kiu'Ii foor-j not arisinji out of th'j land, but for Hervicua porfortuu:! ; Kirton V. I)etn\ L. R. r> C. P. 217. Tho mombevH of a p;utnership whoso lands were vested in trustees for tlio benefit of the partnerfihip, thouj,'li deemed and considered as persoi-.al, and not real, estate : Ilelil, that such ])artnerH had'an einitable seisin in such lands to entitle them to vote : ljii.rt<:r v, NcivvKin, 7 M. A Or. 198, s. c. i) Jur. 829. Where an asso- ciation of persons had purchased land for a Stock Kxchan^^e, and vested it by deed iu trustees upon such terms that the individual members of the association were respectively ititled only to a share iu the net prolits of the l*2xchau;,'e : //./(/, that such persons had not an eciuitablo freehold in the l.ind, only an interest iu tlie profits of the concern, and, therefore, no rij^ht to vote, although the association was not incorporated, but was a mere voluntary orj^anization with- out statutory j)owers or restrictions : jratxon v. Illnck, 10 Q. B. D. 270. Tho members of a corporation which is seised in fee simple of lands, have no such estate legal or equitable in the lands of the corporation as gives them the franchise, although the individual shares of such members in the profits realized from such lands exceeds the amount of the statutory qualification : Arhnid v. Jem's, 9 C. B. N. S. H2, s. c. 7 Jur. N. S. •421. Nor have the proprietors of a music hall-, vested in trustees who manage it for the general body, any e(iuitable interest in the realty which would entitle them 'to vote: Freeman v. (r(iiniif(1, and (I S. "J, SCI)-S. 'J 9 1 MANIAL ON VOTERS LISTS. 101 i mean a person J>oiiii jhle occupying property witli- •k, 10 seised uitablc Liicliise, }u the of the S. ?,'!. music 1 body, entitlo ). Nor :. Dear. joint Coin- 5), sv-id persoiiH clfiiiniii},' iiiider tliem by uKsii^nmcnt [Ihid. sec. 17), or by tax sale {ll>itl, sec. IH) ; or without such HceiiHcs, as squattors. " The hiw of occupancy is founded u|)on the hiw of nature. So as upon the first coniin<^ of the inhabitants to a new country, ho tliat first enters upon sncli part of it and manures it, <^ains the property ; so that it is the actual possession and nianurance of the land which was the first cause of occupancy:" V'in. .I^>r. " Occupant "' II. Occu- pancy is only to supply a freehold: SiiKtrlh' v. PchIkiUow, 1 Salk. 181). So when a nation finds a country uninhabitated, and without an owner, it may lawfully take possession of it; and after it has sufliciontly made known its will in this respect, it cannot be dejirived of it by another nation : I'attfl's Law of Nations I)U. The possession of immoveable property, when it has ori^'inatcd in and been continued under such circumstances and for such len^'th of time as the law has prescribed, may constitute a valid and iiulefeasi])le title : ii Hurtif's Col. <('• For. Lair 7. A squatter who is in possession for his own benefit, and not as a servant to any person, has a title sufficient to support his vote: liroiifiJi on Elections, 12. An intruder upon Crown lands j^ains no estate or interest by his possession ; and the Crown may f.'i'ant the land as freely as if no such intruder were upon it, and the grantee of the Crown would, by force of his grant, be seised of an estate in possession in tlie eye of tlie law : Dae Fitz- gerald V. Finn, 1 U. C. Q. B. 70. This law has been held to })revail where the occupants have been mere squatters, or where a party has gone into possession v/ith a fair ground for expecting that his title would be confirmed : Ihid. 80. The actual possession of Crown lands entitles the party in possession to maintain trespass against a wrong-doer : Harper v, Charlesworth. (5 D. cV R. f')7'2. But to m;rintain trespass, the possession must be actual and continuous: Henderson v. McLean, 8 IT. C. C. P. -12. A squatter in occu- pation of Crown lands by suffrance, but whose claim has not been recognized bv the Crown, ho 3 no estate or interest in 11 il 1 » * !l^ U IMAGE EVALUATION TEST TARGET (MT-3) / O :/ <$> 1.0 I.I 1.25 IIIM ilM iiy j||j|22 12.0 1.8 1.4 III 1.6 V] <^ /a ^/, ^ VI c). S^M ^ o ^ / /A Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER NY. 14580 (716 1 872-4503 m -b fV 'oS N> ^ €^',?5^'* o^ <^ fe my. <$> M 102 MANUAL ON VOTERS* LISTS. [R.S.O. c. 10, otherwise than as owner or tenant (./), either in his own right or in the right of his wife (A;), but the lands occupied by him which would warrant the inter- ference of the Court in partitioning such lands : Jenkins v. Martin, 21 Gr. 613. A person having the mere possession of land vested in the Crown for the benefit of the Indians deter- minable by the Cvown at any moment, has no such interest in the land as ..jvnd enable him to qualify dither as pro- prietor or tenant for election to municipal office : licfi. ex rel. Lrcir'or.i '. i<': ■ c'', h Pr. R. 12. He has no estate in such Lvnds, b-u a . ;)oseession determinable in an hour: Ibid. Persons joi:-ti^ occupying the land with the owner, and having an agreement for o. share in the crops, and who are in a position to compel the owner to carry out such agreement, may vote: Stonnont, H. E. C. 21. They must have such interest in the land at the date of the last final revision of^iue Assessment Roll : Ibid. ; lie McCuUoch and the Judge of Leedx and Grenville, 35 U. C. Q. B. 44'.>; or if such interest is parted with after such final revision, the voter must be a resident of the constituency at the time of the election: South Grenville, H. E. C. 163. (_/■) " Otherwise than as owner or tenant." nitions of these terms. See the defi- (k) " In the right of his wife." In construing the above clause, and the clause defining "owner " the separate object and history of those clauses, and of the Married Women's Property Acts must be borne in mind. None of the Impe- rial Acts use the expression " proprietor in the right of his wife." Its first appearance in Canadian Legislation is in re- lation to the Lower Canada Franchise : 22 Vic. cap. 82, sec. 23, C. S. C. cap. 6, sec. b, sub-sec. 3. The Married Women's Property Act (C. S. U. C. cap. 73), passed in 1859, while it made the wife's real property separate estate sub modo, also recognized the husband's estate and interest therein during the coverture : Royal Canadian Bank v. Mitchell, 14 Gr. 412. The Election Law of 1868, passed after this judicial inter- c. 10, 8. 2, 8UB-S. 2.] MANUAL ON VOTERS LISTS. 163 er in ),but ) inter- nkins v. Bsion of 8 deter - interest as pro- lie;!. ex state ill ,n hour : • owner, mcl who )ut such ey must ast final loch and il>-, or if sion, the time of the defi- |he above ite object kVomen's le Impe- iit of his is in re- >. 82, sec. ^Vomen's while it \iodo, also in during Gr. 412. lial inter- pretation of the Married Women's Property Act (cap. 73), imported into the Ontario Franchise, the Lower Canada expression, that "Owner" should signify " Proprietor in the right of his wife of an estate for life or any greater estate ;" tliis enactment was in 1871, held to give the right to vote to a husband whoso wife had an estate for life or a greater estate in land ; and that when in pos- session of that estii+e he was "proprietor in the right of his wife:" PrescoK, H. E. C. 1. In 1872 the Married Women's Property Act, 35 Vic. cap. 1(5, was passed, by which tlio husband was divested of all estate and interest in liis wife's real estate: Merrick v. Sherwood, 22 C. P. 477. In 1877 the Legislature re-enacted the two Acts above referred to, R. S. O. cap. 10, and cap. 125, without altering their phraseology, or adopting either of the judicial constructions separately put upon them. And in 1884 (by 47 Vic. cap. 19), and 1885 (by 48 Vic. cap. 2) the Legislature again re-aftirmed both statutes in tlie same words. The rule of construction where the Legislature uses in Acts the same language which was used in former Acts referring to the same subject, and passed with the same purpose, and for the same object, and upon which there have been well-known decisions, is that it uses that language in the sense given by such well-known decisions : Greaves v. Tofield, 14 Ch. D. 5(53. And so where such construction is from long practice or judicial interpre- tation : Davidnon v.Rotis, 24 Gr. 22. The Married Women's Property Acts repealed so much of the common law as vested in the husband on his marriage, a freehold estate in liis wife's land. The phraseology of the Franchise Act,— but for the construction which must be put upon the words whicli indi- cate the possession of a beneficial interest or estate in lands as "owner " or "occupant," — might lead to the conclusion that it was intended to give to a husband the statutory franchise on which he could vote, based upon his marital relationship to the owner. Or that he should have tlie right to vote aa representative of his wife, as has been a[)parently conceded to him in the Quebec Election Act, 38 Vic. cap. 7 (Q.), by the words that owner shall mean a person " whose wife possesses real estate," and in th^^ amended Dominion Fran- n m I V r i :]: j ■ .1 |, ... \i^ ;M'l fp r 164 MANUAL ON VOTERS' LI8TS. [R.S.O. C. 10, being in possession of such i)roperty (l) and I I i i!| Rin chise Act of 188(), 4'J Vic. cap. 3, in the words that " owner," shall mean " the person whose wife is proprietor of freehold estate." Apparently the effect of sucli legislation is to {^ive lej^islative sanction to a new principle of Parliamentary Law, — namely, that the representative of an owner of real pi >- perty may vote at elections, for or as the delegate of such owner. In support of this view it may be contended that the wife having the ownership of the property becomes entitled to that which is incident thereto, viz., the right to the fran- chise ; and that the husband, though possessing no estate or interest in her property, exercises, by virtue of his mari- tal relationship, such political right asheragent, and marks the ballot for her. The legislation referred to, may be thus said to recognize this principle of representation, or " voting by proxy," at elections; and it apparently sanctions in re- spect to married women, what appears to have been the anci- ent practice of unmarried women, of voting by attorney at Parliamentary Elections : "Whether women have not an- ciently voted for members of Parliament, either by them- selves or attorney, is a great doubt. I do not know upon inquiry, but it might be found that they have :" Per Lee, C.J., inOlifev. Imjram,! Mod. 209. But as the legislature has abandoned the old statutory rules respecting property quali- fications, and has given a statutory franchise to persons who have no estate or interest in the qualifying property, but only a relationship to the owner, that of father and son, — as in the case of " Farmers' Sons," and " Landholders' Sons,"— it may now go further and give a furtlier right to vote, based upon another and a higher relationship, that of husband and wife. Kee further note (./) p. '"•40. (/) " Bein,^ in possession of such property." By the com- mon law possession was prima facie evidence of a seisin in fee. There is no foundation in nature, or in natural law why a set of words upon parchment or paj)er, should con- vey the dominion over land, or give one tl:e right to exclude others from a certain spot of territory. Possession is defined ). c. 10, ) and jwner," freehold i to {?ive ,ryLaw, cal pi >■ of such that the entitled the fran- 10 estate Ills mari- 11 d marks y be thus r "votiiif,' jns in re- the anci- ,torney at e not an- by theni- iiow upon Per Lee, liiturehas srty quali- rsons who perty, but d son, — as 'Sons,"— ,otc, based husband y the com- a seisin in atuial law lould con- to exclude n is defined a. 2, STTB-s. 2.] MANUAL ON VOTERS' LISTS. to be the detention by a person of some incorporeal thin{» with the intention of holdin{» it for himself as owner: 3 liurffc's Col. d- For. Law 3. It is not necessary that there should be a corporeal taking of each part of the particular subject. Thus possession of a part of a farm with the in- tention of takinf» possession of the whole, is considered as possession of the whole. Possession is acquired (tiiimo et i-orpore, and is not lost nixi animo et corpore : Ibid '». The terms ''bona fide occupying," "possession," "resident," "domiciled," imply an act ual possession in fact, and not a mere rij^ht of possession. Neither a )•////(/ of possession, nor a rifiht to occupy, necessarily implies the exercise of the rif?ht in fact. " ' Actual possession,' bein*,' therefore a well-known legal phrase or expression, the Legislature cannot be taken to have used it in any other tlum in such well-known sense ; and it is contradistinguished from such possession in law or right as the bare delivery of the deed of grant would confer:" Per Tindal, C J., in Murray v. Thorniley, 2 C. B. 217 ; 8. c. 10 Jur. 270. If the conveyance be at common law, as A. to the use of A., the grantee has not possession until he has actually received part df the rent : Ibid. But if it operate by the Statute of Uses (27 Hen. VIII. c. 10), as to A. to the use of B., the person to whose use it is granted has possession as soon as the grant is executed : IFeeliit- v. Blaine 18 C. B. N. 8.90. "If the question came before me for the first time, I should have inclined to hold that ' actual possession ' meant something which was capable of demonstration, and not a mere parchment title:" Per Grove, J., in HadfiehVs Cane, L. R. 8C. P. :U!). " I think that the epithet ' actual occupation ' is to be applied to the fact of residence oroccupation.and not to the c7;<(?'«r/('/- or nature of the occupation ; the voter must be actually in occupation, but his occupation need not be a personal occupation of every room in the house:" Per Crampton, J., in Duitjenan's Case, Ale. Reg. Ca, 11(5. It is difficult to say what the meaning of the words " actual possession," as contradistinguished from " possession," is, since there can be but two modes of possessing property, viz., by actual possession, or by receipt of the rents and profits : 1 Stephem on Elections 461. In 165 ■if ,; "I I.. . \ i 1 w^ 166 MANUAL ON VOTERS LISTS. [r.S.O. c. 10, i ■ i ?! 1 ''I .•i ■',' .■I |! i'l enjoying tlie revenues and profits arising there- from to his own use (m). legal unrlerstancling a person in actual receipt of rents is said to be in possession: Ibid. 404. One who lets the eatage of his grass does not cease to occupy as a tenant : WShea v. Meara, 1 Ir. R. (R. App.) 1. See further, Hetjdenv. Tiverton, 4 C. B. 1 ; 8. c. 10 Jur. 950; Onne's Case, L. R. 8 C. P. 281. A person who occupied a lot of land, out hay on twenty acres of an adjoining lot, and stored it in a barn thereon : Held, not such an oc(;upancy of the twenty acres as exempted such twenty acres from being assessed as non-resident land : Bank of Toronto v. Fanninri, 17 Gr. 514. " The occupany contemplated by the statute [now R. S. O. c. 180] is a visible occupancy:" Per Spragge, C. Ibid. The fact of occupation is an essential ingredient in the fi'anchise, and must be substantially proved : liofiem on Klections '* J. " There is a material distinction between a holding anc xn occupation. A person may hold, though he does not occupy :" Per Littledale, J., lU-x v. Ditcheat, 2 B. &. C. 183. A man shall be said to be bona fide possessed where the person possessing is said to be ignorant of all the facts and circum- stances relating to his adversary's title: Dormer y. Forte-scue, 2 Atk. 124. A possessonjis in good faith when he possesses in virtue of a title, the defects of which, as well as the happening of the resolutory cause which puts an end to it, are unkown to him ; such good faith ceases only from the moment that these defects, or the resolutory cause, are made known to him by proceedings at law. See Stuart v. Baldwin, 41 U. C. Q. B. 440. (w) " Enjoying the i-evenues and profits arising therefrom JO his own use." The occupancy must be to the use and benefit of the party claiming the right to vote : Brockville, H. E. C. 129. Persons occupying land jointly ivith the otoner, and having an agreement with such owner for a share of the crops may vote as " occupant." But such persons must be in the position to compel such owner to carry out s. 2, scD-s. 2.] MANUAL ON VOTERS LISTS. 1G7 the agreement : Stormont, H. E. C. 21. And such agree- ment must be in forca at the date of the final revision of the Assessment Roll : lie McCitlloch and the Judpe of Leedn it Grenville, 35 Q. B. 4;12. Where it is proved that an agree- ment exists (verbal or otherwise), that the son should have one-third or one-half of the crops as his own, and such agree- ment is bo a fide acted on, the son is entitled to vote : Brock- rille {Cdldu'i'irH Cane) H. E.G. 129. So where the owner has for some years given up the whole management of the farm to his son, retaining his right to be supported from the product of the place, the son dealing with the crops as his own, and disposing of them to his own use : Ibid A clearly eBtab- lished course of dealing for years as to the management and disposition of crops, and acts done by the son in the manage- ment of the farm : Ileid, sufficient to establish an interest in the crops in the son, though the evidence of any original agreement or bargain be not clear ; Ibid. If the evidence would warrant the jury in ftndinjr the crops to be the pro- perty of the voter, the son is rightly' placed on the roll : Ibid. 7 Can. L. J. 221. But where such ciops could not be seized for such voter's debt he would not be entitled to vote : Ibid. {FranriH's Cage), H. E. C. 120. In a milling business, where the agreement between the father and the son was that if the son would take charge of the mill and manage the busi- ness he should have a share of the profits, and the son in fact solely managed the business, keeping possession of the mill, and applying a portion of the proceeds to his own use: Held, 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 be on the roll: Stormont {IhiUock'n Cane), H. E. C. 21. So, where the voter had been originally put upon the Assessment Roll merely to give him a vote, but by a subsequent arrangement with his father, made five or six years before the election, he agreed to support his father and apply the rest of the proceeds to his own support, it was held that if he had been put on originally for the purpose of giving a vote, and that was the vote now questioned, it would have been bad ; but having been continued for several years after he really became the occupant for his own bene- I :. Hi 1- ■ i)« ■tf! j! ! ;t I 168 MANUAL ON VOTERS* LISTS. [r.S.O. c. 10, M, he was eutitlotl to be on tlio roll : Ibid. (Gore'n Cane). But the rule is different where father and son live to>»ether on the father's farm, and the fatiier is in fact the principal, to whom the money is paid and wiio distributes it, and the son has no agreement binding on the father to compel him to give the son a share of the proceeds of the farm, or to cultivate a share of the land, and the son merely receives what the father's sense of justice dictates: Ibid. (Kiniioii's CdKi'). Or whore 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 the profits, and the son merely worked with the rest of the family for their common benefit : Ibid, {lianei/s Case). Where the owner died intestate, and the estate descended to several children, only the interest of the actual occupants is {generally to be considered : lirochviUe {Li-xlie's Case), H. E. C. 129. Where the occupant is shown to be receiving the rents anil profits, on account of a party interested, though not in actual pos- session, a more liability to account is not to be considered : Ibid. 7 Can. L. J. 221. The widow of an intestate owner con- tinuing to live on the property with her children, who own the estate and work and manage it, should not, till her dower be assigned, be assessed ; nor should any interest of hers be deducted from the whole assessed value, she not having the management of the estate: ////(/. (Gilmt/'s Case), II. K. C. 129. Where a husband had possession of property for vv-liich he was assessed as "occupant," and his wife as "owner," but the property belonged to his wife's daughters by a former husband, his vote was held good: Ibid. (U hale if s Case). Where, under an agreement between father and son, the sou was to share in tlie crops, but it was in the father's discre- tion to determine the son's share, such son was not entitled to vote : Ibid. {Jidtnson's Case). Where father and son were in the occupation of property, the son as owner, and the father under an agreement " to have his living off the place," the father was not entitled to vote: Ibid. {Wiltse's Case). A person residing and working on his father's farm under the promise of a deed of part of the farm, should be entered as a " Farmer's Son :" Per Moss, C. J. A., Opinions on Voters^ 8. 2, fiCB-8. 2.] MANUAL ON VOTERS* LISTS. 169 LixlH Act. Case 8 (Appendix). Where a vendor had conveyed and ^iven possession of the property to a purchaser, and such purchaser afterwards, and before the final revision of the Assessnu'iit Rull, fjave the vendor a license to occupy a small portion of the property, such vendor was not entitled to vote : South (Ireuville (Nohlin'H Cane), H. K. C. 103. A verbal agreement with an Indian to work the farm of such Indian, which was Indian lands, on shares, under which the defend- ant went into occupation, and liad sown several acres with fall wheat ; Held, that such agreement was illegal, and that the defendant vas properly found guilty of misdemeanor under the Indian Act: licfi. v. Hanar, 7 U. C. C. P.* 380. The occupancy defined by this clause excludes some occu- pations of less independence, v.'here such occupations depend upon the perform.ance of duties as a servant, such us the porter to a lodge, or the gardener occupying a dwelling in the garden : Darin on Ue(jiAtrath,n 17; or keeper of a town hall : Clark v. .S7. Mary, Bury St. Kdinumh, 1 C. B. N. S. 23. Or such an occupation that possession would have to be given up when the employment ceased : Ferrar'a Vase, Ale. Reg. Ca. 248. Where, after a hirin/, as gardener at a salary and a riglit to occupy a house, the gardener behaved inso- lently towards his master : Held, that the master could dismiss him without giving notice, and that such gardener's right to occupy the house ceased with the termination of the service: FlemiiKj v. Hill, 1 Russ. & Ches. N, S. 2(58. A clerk in a brewery occupying a house connected with the brewery in the capacity of a clerk, disqualified : lie GoriiMU, 1 Ir. L. R. 282. Likewise a bank oflicer occupying the bank premises: lie Gilliex, 3 Cr. tt Dix 374. On an appeal against t!ie right of a person to vote as "occupant," the County Judge may amend the notice of appeal, and enter him as "tenant" if so qualified : Per Patterson, J. A., Opinionn on Votern' Lixtx Act, Case (5 (Appendix). The words "enjoying the revenues and profits arising therefrom to his own use " are inapplicable to the case of a married man whose wife in the "occupant" and in possession of the real property. Under the recent statutes she would be entitled to hold such property as separate estate, and to receive to her own use T 170 Tenant. I iiii MANUAL ON VOTERS* LISTS. [U.S.O. c. 10, 3. The word "tenant" («) shall include any the revenues and profitH to the exchision of her huHbiind. And she would also bo entitled to an injunction n^^iiinHt her luisband interfering with Ijer proprietory rijihts therein : Voniu'lhf V. Donnelly, ',) Ont. II. 07iJ. Ree further note (A) p. 102, and the notes on " occupant," pout. (h) In the lanj^un{,'e of the law, every possessor of landed property is a tenant, with reference to such pro]ierty, and this whether the property is held and owned by him as *' tenant in fee ;" or as an entailed estate is held by him as •'tenant in tail ;" or is held fur his own, or another's life, as " tenant for life ;" or is held under a lease for a term of years, as "tenant for years," or is held subject to the will of another as " tenant at will." But in this Act the term is used in the popular sense of one holdin;:! the land of another, who is termed his landlord ; and for the use of which land the tenant pays rent in money or produce. The relation of landlord may be created by assignnient or lease. Whci'e the alienor conveys the whole estate to an alienee, leavin-.; no reversion to himself, the conveyance amounts to an as- signment. When he grants only a i)ortion of an estate, reserving to himself a reversion, the conveyance is a lease. Where a lessee for years demises part of his property to another for the whole of his tei"m, the demise is called an assignment j^^'o tanto. Where he disposes of his term, reserving a reversion of even one day, the transfer is, with reference to the original lease, an underlease : Cru.'^oe doe (lem lilencour v. liuphij, 2 W. Bl. 7(50. A tenant under a lease from year to year cannot create a sub-tenancy, nor a right to vote in the sub-tenant, by giving another person a share in the crops grown on the leased property : lirochviUe (Diin- hame's Cii/ie), II. E. C. 129. Where a party entered into possession of a lot which had no house or building, and sowed a crop there, upon a verbal understanding that he was to have the product, but no special time was men- tioned; Held, that a sufficient tenancy was created : Mnlhern 8. 2, 8UU-8. 8.] MANUAL ON VOTERS* LISTS. 171 V. Fortune, 8 U. C. C. P. 4H1. Where the voter and his son hiivseil certain property, and the lease was drawn in the son's niinio alone, and when the crops were reaped the son claimed thoy holon^'ed to him solely, the voter owning other property, hut heing assessed for this only ; Ili-hl, not entitled to vote : Stormotit (/////'*( Case), H. K. C. 21. Where the voter was the tenant of certain property belonging to his fatlier- in-law, and before the exi iration of his tenancv the father- in-law, with the consent of the voter leased the pi()i)erty to another, (the latter being a witness to tlie leane) the voter's lease not expiring until November, and the ui-w lease being made the March previous ; Held, that after the surrender of the lease, to which ho was a subscribing wit- ness, he ceased to be a tenant, and that to entitle him to vote he must have the qualification at the time of the final revision of the Assessment Roll, though not necessarily at the time he voted, so long as he was still a resident of the electoral division : Ibiil. (Rupert's Citxe). Where a voter, after becoming insolvent, continued in the undisturbad occupation of the premises of which he was a tenant , Ilelil, he was entitled to vote : Dublin (IlitltnuVn Case), Fal. A: Fitz. 158. Children of a deceased tenant from year to year, who remain in possession, are co-parceners or tenants in com- mon, and the tenancy continues to them until a paramount title intervenes : Melntfire v. Mclntijre, 1 P. K. I. .500. A., the former tenant of a house, died intestate, leaving a widow and infant children in possession. No administration was taken out to his estate. B. married the widow, and went into possession of the house, paid all rents and taxes, and maintained the children of the intestate ; Held, that B. waB entitled to vote: McLau(fhlin\i ('(/xf, Ale. Reg. L'a. 21!>. The occupant of a separate portion of a house, such portion having a distinct communication with a public road or street by an outer door, is a houseliolder within tlie meaning of the Municipal Act, 4tj Vic. cap. 18, sec. 87. Where a house is let out in separate portions to different tenants, and the owner or landlord does or does not reside on the premises, though there is but one outer door common to all tenants, each distinct portion so let is the house of such occupier, Mil 1 1 1\ \y i , ' i I i TT 172 MANUAL ON VOTKRS' U8TH. [R.S.O. c, 10, ifli I and each tenant is entitled to he rated, and to he registered as a voter : Jicp. t.r rel. Fonvanl v. lUirtvU, {Loutfn Case) 7 U. C. C. r. ruW) ; Score v. Hmjiiett, 7 M. & Gr. iir» ; lie.r v. Vm- worth, r, A. A' E. 201 ; Toinx v. Luchett, 5 C. H. 2H. Where rooms in a factory, in which each tenant had his own spin- ninf» macluno, worked hy a steam en>»ine helonj^in^; to and worked hy the hmdlord. hut each tenant had the exchisive use of his own roDm and kept the key of the door, which he approached hy a common staircase ; Held, that each tenant was entitled to vote : WriijUt v. Stoel;pnrt, 5 M. . A permitted B co occupy certain lands, on which, in lieu of rent, B was to make improvements, but which were not defined : Held, that by the successive improvements, such as they were, the relation of landlord and tenant was created, although the improvements were not strictly in lieu of "rent: " Workman V. Jiobb, '2H Gr. 243 ; 7 App. R. 389. Money's worth includes services rendered in some capacity connected with the premises, as where the occupation of premises is given in part remuneration for a duty or service rendered : Hughea V. Chatham, 5 M. & Gr. 54. See further the notes to " Tenant," post. {q) This definition is for the purpose of indicating tho class of persons whose sons are to be registered under the title of " Landholders' Sons." The former title of this fran- chise was "Farmers' Sons;" and it was conferred upon so many of the sons resident on the farm of the father, or their motlier, after the death of the father, as the assessed value of tho farm would qualify according to the ratio of the statutory qualification. The qualilications for this new franchise are (1) As to relationsnip, that of : (a) father ; (b) mother; (c) grandfather; (0!it. {>•) See notes on " Owner," pp. 143-lGO. ()>•) " Residin<^ and domiciled upon real i)roperty." Resi- dence is whereone habitually sleejjs. Prima facie {iiriaiV& home is where his wife lives : lU'n. v. Norwood, L. R. 2 Q. B. 457. It is where a man esfablishes his abode and makes the seat of his property : Chane v. Miller, 41 Penn. St. 403 ; witli a fixed purpose of remaining, and which cannot be referred to an occasional purpose either of pleasure or business : liampdev. Johmton, 3 Ves. 20L '• An inhabitant of any place is one who makes it his place of abode, his dwelling place ; he niust reside there, and, to qualify him as a voter, the resi- dence must have been continuous for the twelve months preceding. Any breach of residence, even for a single day, will disqualify. What is a breach of residence ? The animus revertendi then presents itself for consideration, as also do questions of absence in prison, of persons abroad on military service, and other conditions which will frequently present themselves as affecting claims and objections :" Cox (0 Grady on FAectiom xvi. The cases governing the fact of III 8. 2, 8CB-8. 4. J MANUAL ON VOTERS LISTS. 177 hundred dollars, and in townships and incorpo- rated villages of two hundred dollars, is, in the last revised Assessment Eoll of the municipality Resi- I's home •157. It •' actual residence " would seem to be applicable to some extent to the cases of "actual occupation," subject to the following limitations: A "residence" may be maintained for the statutory period by an occupation of any number of different premises within the same municipal or electoral division, by the voter himself. An " occupation " must be an actual and continuous occupation of the same premi- ses within such division for the statutory period by the voter or his family. A permanent unbroken dwelling in a partic- ular place is not required to constitute residence ; absence, if there be a power of returning, and an intention to return, will not prevent a constructive legal residence. But a per- son who has relinquished the dominion over his house for any period, however short, or has abandoned the intention to return to it, even though he does subsequently return to it, cannot be said to have a constructive occttjyatiou. See Rex V. Sergeant, 5 T. R. 466 ; liex v. Duke of Ilkhmond, 6 T. R. 560 ; Regina v. Brighthelmstone, 1 Q. B. 674. Where a voter had a house in the borough where his wife and daugh- ter always lived, but, being a plate-layer on a railway, he only occasionally came and slept at home, his residence was held sufficient, because his wife resided in the borough : Northallerton {liiltun's Case), 1 O'M. & H. 171. A, being em- ployed as attendant upon a gentleman, wlio required constant attendance in the day time, occupied premises with the gentle- man, where he usually slept, but was not bound to do so. He had also lodgings at C, where his wife and children resided, and where he could sleep at any time, and where he slept at least once a week : Field, entitled to vote at C : Taylor v. St. Mary Abbott, L. K. 6 C. P. 309. Where tlie voter's wife and children lived at his house at M, he him- self following the occupation of an omnibus conductor in London, and only having slept at M at intervals during three years: Held, vote good : Great Marlow {Clark's Case), 12 ii! 178 MANUAL ON VOTERS* LISTS. [r.S.O. C. 10, I m H m II where such property is situate, entered and assessed as owner of said property of at ieaet the number of acres or the assessed value afore- said, and Bar. & Aus. 83. And so held where the voter removed tem- porarily to London, for the purpose of passing through the Insolvent Court, his wife remaining behind : Cavihrid(je {Lyon's Case), Wol. & Br. 46. If a man dwelleth in a shire, riding, city or town, and keepeth a house and servants in another shire, riding, city or town, he is an inhabitant in each : 2 Co. Initt. 702. A voter had two residences, one at some distance from N, where he generally resided, and another at N, which he aways kept up, but where he stayed only sixteen times during the year. He kept two servants there, and often allowed persons to stay there as guests : Held, qualified in N : (Marahairt; Case) 1 O'M. & H. 171. A man who has two houses, and lives at each when he pleases, would reside atbothhouses within the meaning of the Act : iV rBovill, C. J., L. II. 6 C. P. 309. A rented premises in London as sole tenant for the requisite twelve months. He had also a house at D, where he kept an establishment of servants all the year round ; but when in London he occupied the rented premi- ses, and had done so at intervals for two months out of the twelve : Held, a sufficient residence in London to qualify : Bond V. St. George, Ibid. 312. He had no wife or family, or servants residing there in his absence, but still he was sole tenant, with a power to go there when he pleased, which he exercised from time to time: Per Bovill, C.J., lOid. The claimant who resided and carried on business elsewhere, in order to obtain a vote in T paid a friend 9d. a week for a bed-room and a closet, of which he kept the key. During the six months he slept there twelve times. The arrange- ment was made to qualify the claimant : Held, not a bona fide residence: Whithorn v. Thomas, 7 M. & Gr. 1. "Resi- dence " must mean an actual occupation, by the party being there some time by himself or his family. There must be an animus residendi : Per Tindal, C.J., Ibid. The voter at c. 10, and ieaet if ore - !cl tem- gh the nhridije 1 shire, ints in tant in jes, one ed, and 3 stayed servants i\ Held, nan who Id reside rill.C.J., e tenant ise at D, ihe year premi- t of the [qualify : mily, or as sole liich he d. The here, in (ek for a During [arrange - It a bona ♦ Besi- •ty being must be voter at 8. 2, 8UB-S. 4.] MANUAL ON VOTERS LISTS. 179 (h) Any person actually residing and domiciled Person in any dwelling house (0 as tenant thereof (u), as tenant. where such dwelling house and the land, if any, lield therewith hy such person as such tenant is of at least an actual value in cities and towns of four hundred dollars, and in townships and in- corporated villages of two hundred dollars (?•)» the time of registration occupied a house, from wliich he removed to another part of the boroutjh, leaving*, however some farniture and other goods in it, sleeping there occa- sionally and continuing to be rated and to pay rent for it. His son and daughter, who had previously lived with him continued to reside there, the son using the house as his residence for his professional business : Held, the voter did not occupy the house as required by the statute : Wigan {Xatltan's Cane), Bar. cfe Aus. 1;j2. Where a voter had been sold out and obliged to leave his house, from which he re- moved to an inn in the borough : Held, disqualified : Ik'wd- ley {Evans Case), 1 O'M. tfe H. 174. A voter wlio kept a public house in the town, where he kept a bed and slept there occasionally, but he had a house in the country where he usually slept : Held, that, as a man's residence was where he habitually slept, the voter was not . r, iv ^ 184 Election. To vote. MANUAL ON VOTERS LISTS. [R.S.O. c. 10, 10. The word " election" shall mean an elec- tion of a Uiv^mber to serve in the Legislative Assembly. 11. The expression "to vote" shall mean to vote at the election of a member of the Legis- lative Assembly. Electoral 12. The exprcssion " electoral district " shall district, jjjgg^jj Q^^y county or other place or portion of this Province, entitled to retm*n a member to the Legislative Assembly. Voters' List. 13. The expression " voters' list " shall mean tne copy of the Voters' List furnished in accor- dance with section 56 of this Act. Last re- 14. The expression " last revised Assessment Belsment Roll " shall mean the last revised Assessment i^o"- Roll of a city, town, incorporated village or township (c). Corrupt practices. (1) Bribery. (2) Treat- ing. (3) Undue influence. (4) Enter- taining voters. (5) Hiring vehicles. (6) Person- ation. (7) Selling liquor dur- ing polling hours. 15. The expression "corrupt practices" or " corrupt practice" shall mean bribery, treating and undue influence, or any of such offences as defined by this or any Act of the Legislature, or recognized by the Common Law of the Parlia- ment of England ; also any violation of sections 151, 154, or 156 of this Act, and any violation of section 157 of this Act during the hours ap- pointed for polling (d). (c) See B. S. O. cap. 9, sec. 2, sub-sec. 11 and note {e) p. 22. (d) See note (<•) p. 103. 8EC. 4.] MANUAL ON VOTERS LISTS. 185 3. No qualification in real estate shall ^e ^erf'^u^ji required of any candidate for a seat in thepaJ<''"* Legislative Assembl}' (e). on for M. P. P. 4. [As amended by 48 Vic. cap. 2, sec. 10.] The J^fi^^g*"** Chief Justice and the Justices of the Court of (Usquaii- Appeal, the Chancellor and Vice-Chancellors of JotiiIg°™ Ontario, the Chief Justices and Judges of the Courts of Queen's Bench and Common Pleas in Ontario, all County Judges, all Officers of the Customs of the Dominion of Canada, all Clerks of the Peace, County Attorneys, Registrars, Sheriffs, Deputy Sheriffs, Deputy Clerks of the Crown, and Agents f(»r the sale of Crown Lands, all Postmasters in Cities and Towns [all Stipen- vic.48,^cap. diary Magistrates] and all Officers employed in ' the collection of any duties payable to Her Majesty in the nature of duties of Excise, phall be disqualified and incompetent to vote at any election (/) ; and if any public officer or person or (e) Until 9 Anne, cap. 5 (1710) no property qualification was required of members of Parliament. The Acts 1 Henry V. cap. 1, 8 Henry VI. cap. 7 and 23 Henry VI. cap. 1-1 provided that the members elected for counties, cities and boroughs should be chosen men resident, abiding, and free in the same. The property qualification required of members of Parliament was abolished in England in IS.'jS (21 and 22 Vic. 26), in Ontario in 18G9 (33 Vic. cap. 4, sec. 2), and in Canada in 1874 (37 Vic. cap. 9, sec. 20). (/) Judges being liable to be summoned as assistants to the House of Lords, and being one of the executive parts of the Constitution are ineligible : Com. Jour. 9th Nov. 1605. Postmasters are prohibited from voting at Dominion elec- tions, not by any general election law, but by the general Post {Office Act : Savaye v. Deacon, 22 C. P. 441. But all II- p 1^1 1 186 MANUAL ON VOTERS' LI8TB. [r.s.o. C. 10, 'III' 1 il '■'m mentioned in this section votes at any such elec- renaity. tion, he shall thereby forfeit the sum of two thousand dollars {(/), and his vote at such elec- tion shall be null and void. Election f5. 1^0 Returning Officer or Election Clerk, and perBons no persou who, at any tmie, either during the iiottovote. gjggj.jQj^ or before the election, is or has been employed at the said election or in reference thereto, or for the purpose of forwarding the same by any candidate or by any person whom- soever, as counsel, agent, attorney or clerk, at any polling place at any such election, or in any other capacity whatever, and who has received or expects to receive, either before, during or after the said election, from any candidate or from any person whomsoever, for acting in any such capacity as aforesaid, any sum of money, fee, oi'tice, place of employment, or any promise, pledge or security whatever tlierefor, shall be entitled to vote at any election (/<)• the officers named, if qualified as Municipal electors, may be entered on Part 2 of the Voters' Lists. See notes pp. 11 and 12. (O) See 47 Vic. cap. 4, sec. 38. (O.) (h) Under similar provisions in the Act 7 & 8 Geo. IV. cap. 7 (Imp.) the following were disqualified : . A voter employed as a check clerk : Bedford, P. & Kn. 13G. A solici- tor who accepted and acted under a retainer at an election : New Windsor, K. & O. 175, s. p. Bedford, Falc. & Fitz. 439. An elector who was to be paid for his trouble : New Windsor, K. & 0. 173. The paid agent of one candidate cannot vote for the other candidate : Ihid. 174. A town clerk who read the proclamation and acted as assistant to the Returning Officer : Ibid. 185. A parish clerk employed 8. 5, Hun-s. 2.] MANUAL ON VOTERS* LISTS. 187 2. The preceding provision shall not apply to Not to ap- Deputy Returning Officers and Poll Clerks ap-Ofli?poii' pointed under this Act and receiving as such the ^'*^'^*'"- fees to which such officers are entitled under this Act. ft by both parties to point out the Iiouhos of voters : Ibid. 246. Two town servants, paid by the town corporation, who acted an door-keepers at the candithite's committee rooms: Ipxwicli, Ibid. 385. A voter appointed a carrier at a salary, but who employed a deputy : Krrnhain, Fa'c. & Fitz. u27. Voter employed as a messeuf^or, which was his ordinary callinj^ ; Ibiil^ The votes of the followinj^ were held ^ood : A voter employed and paid to erect the huHtinj^s : Ipswich, K. & O. H87. Corporation officers employed in keeping the peace during the election, and paid out of the corporation funds : Ibid. ol)4. A voter wlio led the band and was paid with the other performers: Monmouth, Ibid. 121. A voter employed and paid as a messenj^er : Huddenjield, Wol. & Br. 'A'i. The following were held dis<]ualilied under the Ballot Act of 1867. (Imp.) Voters whose sons were em- ployed as messengers, their wages having been paid to their fathers : Southampton, 1 O'M. & H. 223. A voter remuner- ated for expenses incurred by him in employing assistants for his own business, while he was engaged in election matters: Ibid 22^. Voters employed to keep order at the doors of the polling stations : Gloucester, 2 O'lNI. it II. 02. The votes of the following were held good : Printers who were employed in delivering messages incidental to printing : Northallertou, 1 O'M. & H. 170. A voter who was a cabman and whose cab was hired in the ordinary way on polling day, and who was only paid his legal fare : Southampton, Ibid 221. Under section 25 of the Ballot Act (Imp.) 1872, and the above Acts, a voter who was fly-driver, and was employed to convey canvassers about previous to the day of election, was held not to be dis(jualified : Down, 3 O'M. & H. 116. " The disqualifying words are very wide and it would be unsafe for any person employed for reward, in ;i. t ii ■' ir ^WP ll ■■ 188 MANUAL ON VOTERS* LISTS. [r.S.O. c. 10, No woman 6. No woman shall be entitled to vote at any to vote. 1 i.- /'s election {i). any capacity whatever, connected with ' all or any purposes of the election ' to vote at H. It is to be observed that the disqualification is absolute, and not limited to voting for the candidate by whom the elector is employed :" Nicohon on Elections (Scot.) 27 (n.) (/) A woman not being a " person " within the meaning of the Election Acts, cannot appeal to the Courts from the de- cision of the Revising Bairister : Wihon v. Sal/oril, L. R. 4 C. P. 398. All women having freehold, or no freehold, and men within the age of one and twenty years, are bound by Acts of Parliament, but are not parties to elections : 4 Coke's Inst. 5. Women, being under legal incapacity, have no com- mon law right to vote at Parliamentary elections, though possessing the requisite property qualification : Chorlton v. lAnijs, Ibid. 874. " Persons disabled from voting at elec- tions are those who, holding freehold lands and tenements, either lie under natural incapacities, and therefore cannot exercise a sound discretion ; or are so much under the influ- ence of others that they cannot have a will of their own in thechoic^of candidates; of the former are women, infants, idiots and lunatics ; of the latter, persons receiving alms and Revenue Officers;" Heyicoodon Elertions 159. Women are disqualified at common law in Ireland : Hudson on Elec- tions 159; a.id also in Scotland "by a long and uninter- rupted custom:" Brown y. Imjram, 7 Sess. Ca. (3rd. ser.) 281 In the United States, a female who possessed all the qualifications entitling a person to vote, except that sl^e was not a male, voted at an election for a member of Congress : Held, that she was rightly convicted for knowingly voting at such election without having a lawful right to vote : United States v. Anthony, 11 Blatch, 200. " I trust the unani- mous decision of the Scotch judges and our unanimous de- cision will for ever exorcise and lay this ghost of a doubt which ought never to have made its appearance :" Per SEC .6.1 MANUAL ON VOTERS LIPTS. 189 Byles, J., f^>-)rlton v. Lings, (supra). Before Lord Coke promulgated his opinion " that women having freehold " were not parties to elections, it was said to be the opinion of the judges that a feme sole, if she has a freehold, might vote for members cf Parliament : Catharine V. Surrey, cited 7 Mod. 264. Women, when sole, had a pow- er to vote for members of Parliament : Cuates v. Lisle. 14 Jac. I, cited Ibid 265. A feme sole freeholder may claim a voice for Parliament-men ; but if married, her husband must vote for her: Ilolt v. Lyle, 4 Jac. I, cited IbitK 271. " The case of Holt v. Lyle is a very strong case :" Per Probyn, J., in Olive v. Inyram, Ibid. 267. " Whether women have not anciently voted for members of Parliament, either by themselves or attorney, is a great doubt. I do not know upon enquiry but it might be found that they have : " Per Lee, C. J., Ibid. " Women who signed charters in Saxon times may have been present at the Witena Gemot, just as Judges may new be present in the House of Lords in order to advise but not to vote :" Per Willes, J., Charlton v. Linys, L. R. 4 C. P. 374. " Possibly other instances may be found in early times, not only of women having voted, but also of their having assisted in the deliberations of the Legislature :" Per Bovill, C. J., Ibid. " But these instances are of compara- tively little weight as opposed to ...e uninterrupted usage to the contrary for centuries ; and what has been commoalj^ re- ceived, and acquiesced in, as the law, raises a strong pre- sumption of what the law is :" Ibid. " Fickleness of judg- ment, and liability tj influence have sometimes been sug- gested as the ground of exclusion :" Per Willes, J., Ibid. Votes given by women at a Parliamentary election in Canada, were not struck off the poll on the mere prima facie evidence of the poll book : Halton (1844), Patrick's El. Ca.^. 59. Women, not being men at all, may be struck off the poll on a scru- tiny of votes : 1 O'M. A- H. 159. Though a woman has no common law right to vote at elections of mem- bers of Parliament, she appears to be capable of hold- ing many public offices— such as Queen : " Queen regnant is she who holds the crown in her own right :" 1 Bl. Com. 219 ; also Marshall, Great Chamberlain, and Champion of Eng- I! m .'. "k. w life ... 190 '/ 'I- ' 11 (- - - ■.'. 11 Ui MANUAL ON VOTERS LISTS. [r.s.o. C. 10, land, 2 T. E. 397 ; Constable of England, 3 Dyer, 2856. Anne Countess of Pembroke, held the office of hereditary feherj'f of Westmoreland, and exercised it in person. At the Assizes of Appleby she sat with the Judges on the Bench : 2 T. R. 307, note (a). Lucy, Countess c * Kent, was Returning Officer, and signed the indenture and return of the member for the County of York in 1412. And in 1415, Margaret, w'dow of Sir H. Vavaseur, also acted and signed a similar indenture. So Lady Elizabeth Copley made the return for the Borough of Gatton in looL, and again in 1555. Dame Dorothy Packington also acted as Returning Officer, and made the return of the two members for Ayles- bury in 1572 : Pn/ime's Brev. Pari. 152. And in 1(528 the return of a member for Gatton was made by Mrs. Copley, et omncit iuhdbitantcs : Heyicood on Eh'ctious 1(50. Wic^ows and spinsters we^e burgessess (electors) of Lyme Re';is in 1577 : 2 Lud. 13. A woman may be a commissioner of sewers, which office is judicial : Callis (1(585), 250 ; and Clerk of the Crown in the King's Bench ; 7 Mod. 270 : governor of a workhouse : 2 Ld. Ray. 1014 ; sexton of a parish church in London : 2 Stra. 1114 ; keeper of the prison of the gatehouse of the dean and chapter of Westminster : 3 Salk. 2 ; governess of a workhouse at Chelmsford : 13 Vin. Abr. 159 ; custodian of a castle : Cro. Jac. 18, 13, Vin. Abr. 159 ; constable at the Sheriff's Court : 2 Hawk. P. C. c. 10, a. 36 ; which is an office of trust and likewise in a degree judicial : 2 T. R. 406 ; gaoler : 2 T. R. 397 ; overseer of the poor : Ibid. 395. Al- though it is uncouth in our law to have women justices and commissioners and to sit in places of judicature, yet by the authorities this is a point worth insisting upon, both in hu- man and divine learning : for in the first commission ever granted (Genesis i. 28), by virtue of the word, domitiamini in the plural, God coupled the woman in the commission with man : Callis 250. "A woman cannot be a pastor by the law of God. I say more, it is against the law of the realm :" Per Hobart, C. J., Hob. R. 148. Women who were housekeepers, and paid church and poor rates, were entitled to vote for a sexton : 2 Str. 1114. Women may vote for church war- dens : Tally v. Farrell, 23 Gr. 49. " It might be more SEC. 6.] MANUAL ON VOTERS LISTS. 191 reasonable that one or more churchwardens should be wo- men than men ; one-half the congregation are likely to be women, and a female overseer would be able to watch over their conduct, to counsel and advise them better than men :" Per Proudfoot, V. C, Ibid. In municipal elections, spin- sters and widows who are rated for property are entitled to vote, but they lose that right on their marriage : lieff. v. Harrahl, L. R. 7 Q. B. 361. Marriage is at common law a total disqualification, and a married woman could not there- fore vote, her existence for such a purpose being entirely merged in that of her husband : Ibid. Nor can it be sup- posed that the statute which was passed alio intuitu has, by a side wind, given them political rights : Ibid. By the Ro- man law when the wife passed in manum viri, all that she had belonged to her husband ; but when she did not, all her property belonged exclusively to herself : Stuiders' Jw.sf. 242. Among the semi-barbaric nations of a later time, marriage was a species of partnership, in which husband and wife had each their separate rights. Any profits or purchases with their joint property were divided between them in pro- portion to their separate property : Sj^ence's Oriij. Laic. i: ■J ■; ■ •i-' i ... :, 1 w' ' ' ' r ' '1 1- ■ ■ ;i -i; ^ >.": ii the law thought women unfit to judge of public things, and placed them on a footing with infants ; by 7 & 8 Wm. III. c. 25 infants cannot vote,— and women are perpetual in- fants :" Per Strange, Sol. Gen., 7 Mod. 272. Under our present political system, the Legislative, Executive and Ju- dicial functions of the Government are carried on in the name of a woman : " Her Majesty, etc., enacts," or " com- mands," etc. ; yet women, because of their sex, are said by the learned judges and sages of the law to be " disqualified by the common law," or "by the uninterrupted usage of countries " from having any voice or representation in the process of legislation or government. {j ) See note {g) p. 6. [k) " Subjects of Her Majesty by birth." By the common law of Parliament no alien has a right to vote at elections : 12 Com, Jour. 3()7. The tests for determining who is a natural-born subject are : 1st. His parents must, at the time of his birth, have been under the actual obedience of the Crown. 2nd. The place of birth must have been within the dominions of the Crown ; and 3rd. The time of birth must be considered : Broom's Co7is. Law 41. And all children born out of the King's legiance, whose fathers or grandfathers by the father's side, were natural-born sub- jects, are also deemed natural-born subjects themselves : Heywood on Elections 156. The children and grandchildren of natural-born British subjects, though born in a foreign country, are not aliens : Salter v. Hughes, Oldr. N. S. 409. Inhabitants of a conquered country, when received under the King's protection, become subjects of the Crown : Chap- ::i\ 8, 7, SUB-S. 1.] MANUAL ON VOTERS LISTS. 193 man v. JIall, Cowp. 104. So, on the cession of Canada, when the King of England became King of Canada, the natives of Canada became his subjects : Doneiiani v. Done- (jani, 3 Knapp P. C. 84. Children of aliens, born within the dominions of the King are natural-born : Calvin's Case, 7 Co. Rep. 18. " The law doth superinduce that civil here- ditary quality upon the blood of the son of an alien, by his birth in England, though when he took it from his [alien] father and mother it was void of that quality:" Per Sir Matthew Hale, C. J., in CoUimnvoad v. Pace, 1 Vent. 427. Children born in a country of which their parents are not subjects, and while their parents are temporarily sojourning there, or in itinere, are natural-born s,...j»3ct3 of that country, and may become entitled to a double nationality : Lijnch v. Clarke, 1 Sand. Ch. 583. A child born of Canadian parents in the United States, during his mother's tempox-ary sojourn there, is a citizen of the United States : Munro v. Merchant, 26 Barb. N. Y. 383 ; and he would also be a subject of the native country of his father: Ludlam v. Ludlam, 31 Barb. N. Y. 480. An English ship, public or private, on the high seas, is deemed English territory: Broom's Cons, Lrtir, 42. There is no difference between an English ship and the soil of England ; an English ship on the high seas may be considered as a floating island : Forbes v. Cochrane, 2 B. & C. 4()4. Children born on a ship in the open ocean are considered as born in the territory of the nation to which the ship belongs: Vattel's Law of Nations, 102. A person born on board an English ship, being within the protection of our law, will owe obedience to our Sovereign : Broom's Cons, Law, 42. If any of the King's ambassadors in foreign nations have children there of their wives, being J^nglish women, by the common law of England the children are natural-born subjects, and yet they are born out of the King's dominions: Calvin's Case, 7 Rep. 18; Cro. Car. fiOl. And such were inheritable before the statute 7 Anne, c. 5, but the statute makes it clear : 2 Vin, Abr. 2().">. Such children must be legitimate : Shedden v. Patrick, 1 Macq. H. Lds. 525 ; s. p. Guyer v. Smith, 22 Md. U. S. 23!). A person born in New York in 1830, the son of a British subject, 13 194 MANUAL ON VOTERS LISTS. [r.S.O. c. 10, liS Vsl i 4:! who had emigrated from Ireland a short time previously, and who came to Canada a year or two after his birth, held to be a British subject : Reg. ex rel. McVean v. Graham, 7 U. C. L. J. 125, A natural-boru subject does not lose his rights by residing in a foreign country, or by holding office there, and his son, being within 4 Geo. II. cap. 21, is a British subject : Doe ilem. Hay v. Hunt, 11 U. C. Q. B. 367. A natural-born subject continuing to reside in the United States after the treaty of 1783 : Held, he thereby lost his status as a British subject, and he and his children became aliens : Doe dem. Patterson v. Davis, 5 U. C. O. S. 494 Where the children of a person who remained in the United States after 1783, came to Canada in 1792 and 1794, and took the oath of allegiance, the disability was held to be removed by U. C. Act, 9 Geo. IV. cap. 21 : Montgomnry v. Graham, 31 U. C. Q. B. 57. When a voter was born in the United States, of British-born subjects, his father and grandfather being U. E. Loyalists, he was held to be a British subject : Stormont (Place's Case), H. E. C. 21. Where a voter swore he was born in the United States, but that his parents were British subjects : Held, that his statement was that he was born in the United States of British parents : Lincoln (2) {Mulrennan's Case), Ibid. 500 ; 8. p. Brockville, Ibid. 129. An Englishman (A) who went to the United States after the treaty of 1783, and became a citizen of, and had taken the oath of allegiance to the United States, thereby abjuring his allegiance to the Crown of Great Britain, who held office and voted there, married an American woman, and had a son (B) born there, who resided there until his death in 1835, and who left a son (C, grandson of A), also born in the United States : Held, that t^ & grandson (C) was, by virtue of the 13 Geo. III. cap. 22, T{"-rigi^ subject : Fitch v. IVeber, 6 Hare 57; s. c. Jur. 76. S« i.jso, Barrow v. Wadkin, 24 Beav. 327 ; Sharpe v. De St. yyi :',\,-, L.R. 7 Ch. 343. The privileges conferred by the -:■• PS in question upon the children and grandchildren of British-born subjects are the privileges of such children and grandchildren, and not of the parent, conferred upon them for the benefit of the state itself : Per Wigram, V.C. s. 7, sun-8. 1. MANUAL ON VOTERS' LISTS. naturalization (l), and not being disqualified 195 12 Jur. 76. And such grandson may vote at elections : Lincoln (2) (Andrew's Cai^e). The status of British-born subjects which is conferred on children and grandchildren born abroad of natural-born British subjects is a merely personal status; and is not transmissible to their descend- ants : De Geer v. Stone, 22 Ch. D. 2i3. A natural-born subject may be a citizen of the United States for the purposes of commerce : Wilson v. Marryatt, 8 T. R. 31. A man need not be a citizen for political purposes, but he may for commercial qy business purposes : Fields v. Adums, 7 Md. 209. An alien who has served on board an English man-of-war, for four years, in time of war; Held, to be a natural-born subject under 13 Geo. II. cap. 3 : lie Giraud, 32 Beav. 385. See note {h) p. 6. (/) The statutes relating to naturalization are as follows : 9 Geo. IV. cap. 21 (U. C.); 4 & 5 Vic. cap. 7; 9 Vic. cap. 107; 12 Vic. cap. 197; 18 Vic. cap. 6; 22 Vic. cap. 1; 31 Vic. cap. 6G ; 34 Vic. cap. 22 ; 41 Vic. cap. 13 ; (See. 17 Canada Gazette, p. 2). See also 33 & 34 Vic. cap. 14 (Imp.) " Naturalization is the act by which the rights, privileges, and immunities of citizenship are conferred upon a person born an alien :" Cooley's Con. Law 77. The judgment of the Court that an alien has been admitted to citizenship is conclusive: Stark v. Chesapeake, 7Cranch U. S. 420. The act of the Court admitting a citizen is a judgment of that Court, and the Supreme Court of the United States cannot look behind it, and enquire on what testimony it was pro- nounced : Spratt v. Spratt, 4 Peters U. S. 393. The produc- tion of the certificate of naturalization is sufficient proof of naturalization, without showing compliance with all the requisites of the law. The judgment of a Court admitting an alien is final and conclusive : Ritchie v. Putnam, 13 Wend. 624. "It is not sufficient to swear that certain voters are aliens without giving particular evidence to show that they were aliens, and how they were aliens, as by having been born iMil il !h f< 7 rif ll If'* 196 MANUAL ON VOTERs' LISTS. [r.S.O. c. 10, under the preceding sections, or otherwise by in a certain place named, out of the allegiance of the British Crown :" Per Robinson, C.J. in lieci. ex rel. Carroll v. licck- icith, 1 Pr. R. 284. The declaration of alienage made by the voter is evidence : Middlesex (Barhre's Case), 2 Peck. 118. The brother of the voter proved that he was a native of Bordeaux, and ten yeai-s older than the voter; that the voter was born there; that his father's family were there; that the voter came to England twelve years previously, and had not, to th'^ knowledge of the witness, been naturalized, or received letters of denization : Held, evidence not sufficient to establish alienage against the voter : Heading (Bartlie\- Case) , Fal. & Fitz. 553. The voter testified that he was born in France, but that he had voted at the election in question. No other evidence was adduced : Held, that, as voting with- out naturalization was a criminal neglect or fraud, and con- stituted a misdemeanor, the legal presumption was that, having voted, he was naturalized : People v. Pease {Riviiwt's Case), 30 Barb. 588 ; in appeal, 27 N. Y. 45. The presump- tion of innocence, where one who is alien born has voted at an election, will prevail over the counter presumption that he is still an 1 ien : Brightly on Elections, 413. " If every naturalized citizen must always be prepared with his proofs to maintain the grounds upon which he obtained his papers in all Courts and places in which they may be brought in question, the boon of citizenship, which is so liberally bestowed, would be hardly worth possessing : " The Acorn, 2 Abbott U. S. Rep. 434. Evidence that a petitioner in an election case had lived in the United States, without showing that his parents were American citizens, was held insufficient to establish alienage: Prescott, H. E. C. 1. An alien who came to Canada in 1850, and who had taken the oath of allegiance in 1861, but who had taken no proceedings to obtain a certificate of naturalization, was held not qualified to vote : Brockville {Bacon's Case), H. E, C. 129. Nor was an alien whose father had taken the oath of allegiance on obtaining the patent for his land qualified to vote: Ibid. 8. 7,stTn-s.l.l ' MANUAL ON VOTERS* LISTS. law prevented from voting (m), shall, if duly 197 (Healet/g Case). Certain aliens took the oaths of allc','iance and residence before a J. P. of a town, but such oaths wore administered in an adjoining township within the same county: Held, that under the Naturalization Act 1871, (D) the justice was acting ministerially, and not judicially, and that the oaths were properly administered : Lincoln (2) {John- son's Case), H. E. C. 500. Where evidence was given of parol admissions made by voters some years before the elec- tion, that they had been born in a foreign country, and also evidence that since such admissions they had voted at prior elections, and had sworn to the voter's oath as being British subjects by birth or naturalization : Held, (1) that the oath at the polls could not be treated as testimony, not having been given in any judicial proceeding; (2) that such oath only stated the result of certain legal facts ; (3) there was therefore no presumption of naturalization sufficient to rebut the continuance of the original status of alienage : Ibid, (Slienck's Case). Where it was alleged that certain aliens voted illegally, parol evidence is admissible to show that their naturalization papers were fraudulently, or irregularly, issued or procured. If the act of pretended naturalization was, in fact, the act of the Clerk alone, and not, in a proper sense, the act of the Court, it would be a monstrous doc- trine to hold that the certificate, bearing the Clerk's signa- ture, was conclusive. Such a rule would permit the party committing the fraud to protect himself, by his own fraudu- lent certificate : McCrary on Elections, 24. (m) The common law disqualifications are (1) Infants. Men within the age of one and twenty years : 4 Co. Inst, o ; and also by statute 7 & 8 Wm. III. cap. 25. (2) Women, being under legal incapacity : Chorlton v. Lings, L. R. 4 C P. 374. (3) Lunatics. " There are four manners of non compos mentis : (a) Idiot or fool natural, [h) He who was of good and sound memory and, by the visitation of God, has lost it. (c)He who is sometimes of good and sound memory, and some- rtl v\ 19f^ MANUAL ON VOTERS' LISTS. fu.S.O. c.lO, s> 9 ! £1 ' 'I \ ' i! tfl "'. times not. (d) By his own act, as a drunkard :'' Beverletfs Case, 4 Co. R. 12-1. Lunatics so lon}^ as they have not under- standing ; but in lucid intervals they are entitled to vote : Hudson on Elections 100. The vote of " a melancholy man and scarce comjms mentis" was held good: Wendover {licning'x Case), 13 Com. J. 42; " being ' scarce compos meiitis ' admits that he was just in a situation to give his vote :" Ilcijwood on Elections 1(50. One deaf, and dumb, and blind, if he can signify by signs the obligation of an oath, should be allowed to vote : Ilo(jcrs on Elections, A voter, so drunk that he was incapable of knowing what he did, was allowed to vote: Wiyan {Lyon's Case), Fal, & Fitz. 095. (4) Aliens. The common law considers an alien as incapacitated to vote, because he labors under a personal incapacity in that he cannot be elected or appointed to any public office whatever: Ileywood on Elections 157. (5) Criminals. A convict felon is disqualified: Colchester {Jeffries' Case), 1 Peck. 508. The attaint of felony is a disqualifica- tion: Great Grimsby, 1 Peck. 509 n. But the Crown may grant a pardon : 32 & 33 Vic. cap. 29, sec. 120 (D). A person convicted of felony, after enduring the pun- ishment, is in law no longer a felon : Leyman v. Latimer, 3 Ex. D. 15, 352. Outlawry in criminal cases, as in treason or felony, is a disqualification : Elliott on Electors, 272. By the common law of Parliament, a person bribed to give his vote at an election is rendered incompetent to vote at that election : Orme on Elections, 111 ; but not at a subsequent election : Ibid. 112. Treating for the purpose of influencing an election was always an offence at common law : Hufjhes V. Marshall, 2 C. & J. 118. (0) Peers of Parliament are dis- qualified from votijig by common law : Earl Beauchamp v. Madresfield, L. R. 8 C. P. 245. So is an Irish Peer: Lord Itendlesham v. Haicard, L. R. 9 C. P. 252. And also a Scotch Peer : Nicolson on Elections (Scot.) 24. Being bound to serve the state in a capacity incompatible with the character of representative of the people, is a disqualification : Male on Elections 37. Legislative Councillors of Upper Canada were held not to have any legal or constitutional right to vote at elections : York, Patrick's El. Cas. 10 ; Jour. Leg. Assem. U. c. 10, B. 7, srn-8. 1. ] MANUAL ON VOTERS' LISTS. 199 entered on the list of voters («), proper to be used at the election then pending, according to the pro- visions of The Voters' Lists Act, or of this Act {o), k.s.o. be entitled to vote at elections of members to^*^*''*^" C. ls-2'.l, p. 72. The Li:r Varluniwnti is part of the law of this Province : Reij v. (laiulli' d' lioultoii, U U. C. Q. B. .051. (h) See note(«) p. 1. The J'oters' Lintn Act, sec. 2, siib-s. 5, directs tliat " the name of the same person shall not be enter- ed mox'e than once " on the Voters' List. The intention of the Acts is to limit the franchise for Legislative elections to residents of the Electoral District ; and to limit the regis- tration of such to the pollinf^ division in which they respec- tively reside, or have the qualifying property ; and thus to guard against the chances of personating or duplicating votes at an election. One already registered in an electoral divi- sion for one set of premises, cannot, while his qualification for such registration continues, be entered on the register for another set of premises a second time: lie Dntitt, 1 Cr. A Dix |Ir.) 1)2. The Legislature only contemplated a single registry for each person, and never intended that a man havmg several distinct premises, out of which he could qualify as a voter, should be allowed to register on each of such premises: lie Senle, Ibid. 2iV,). If the person objected to appears on more than one list, the party objecting should point out on which list he objects to the name being retained : Elliott on Electors, H17. When the law requires a voter to vote where he resides, place becomes an element of suffrage for a twofold purpose : outside the election district residence uo man shall vote; but having that residence, the right it confers is, to vote in that district : Cliaxe v. Miller, 41 Penn. St. 103. The law intends that the voter, in propria persona, should offer his vote in his appropriate election district in order that his neighbours might be at hand to challenge his right to vote if it were doubtful : Ibid. {o) See notes {z) p. 63, and {h) p. 121. i 'Ml :,,! 1 ;! li ' ' ' v! h ; VI \\\ til 200 Real pro- perty qual mcaciou. MANUAL ON VOTEUS LISTS. [r.S.O. c. 10, serve in the Legislative Assembly of this Pro- vince, that is to say : — Firstly. Every male person entered on the revised Assessment Boll, upon which the Voters' List to be used at the election is based, for any city, town, incorporated village or township, for real property of the value hereinafter mentioned, and being at the time of the final revision and correction of said Assessment Boll, and also at the time of the election, a resident of and domi- ciled within the Electoral District for which he claims to vote (jj). (jTj) " Resident of and domiciled within the Electoral Dis- trict." This limitation as to residence applies to all voters at Legislative elections. A similar provision existed in the first Franchise Act (1 Henry V., cap. 1) ; but after having been disregarded for centuries, was declared to be " obso- lete," by 1-4 Geo. III., cap. 58, and repealed. A permanent unbroken dwelling in a particular house is not required to constitute " residence." But it is essential to the qualifica- tion of voters who are entered as owners, tenants, occupants and landholders' sons that they should be assessed as such for a particular property, and should have the qualifying title to such assessed property, at the date of the revision of the Assessment Roll, and also at the date of the election. But if after the date of such revision of the Assessment Roll, the title to such assessed property is parted with, then the franchise qualification is not lost unless the voter removes out, and becomes a non-resident, of the electoral district. There is no condition of " continuous residence " attached to the above qualification as in the cases of income voters, wage- earners, and householders. The residence need not be an occu- pation as owner or tenant of a property, but must be an actual residence for the prescribed period within the Electoral Dis- trict : Beat V. Ford, 3 C. P. D. 73. On the 28th October a resident of R obtained an appointment in D, and from that B. 7, si'H-s. 1.] MANUAL ON VOTERS* LISTS. 201 2. Such persons must (subject to the pi'o- JjliJ®, ^o- visions hereinafter contained) have been rated iwty no- on such Assessment Roll as the owner (7), tenant''"**"''^*'' m date to the l'2th November ho passed ahnost cvltv day at D transacting,' hi« business, returninj,' every nij^lit but three to his family at R. On his appointment ho en^aj^eda house at D, but did not occupy it until the I'ith November, on wliich day he removed his family to it, and became domiciled in D : Held, that he was a resident of K until the day of his removal with his family to D : U'illitims v. U'hiliiiti, 11 IMass. 442. Plaintiff had a house and property at S, where he had a store and carried on business, and where his family resi- ded. He was a member of the ^'overnment at F, where he spent the greater portion of his time in the discharge of his official duties, and where he lodged at an hotel. A local statute authorized the assessors to assess the property of the inhabitants of F, and their income derived from any trade, profession, or calling within the Province : Held, that plain- tiff was not an " inhabitant " of F : llathaitay v. Ciiinmin(i, Allen N. B. IGl. Nor is a clerk in a public department in F, but who resided elsewhere, liable to be assessed in F : Kx 2)arte Smith, 2 Pugs. N. B. 147. " An inhabitant, in its ordinary phraseology, means a dweller, or one who dwells, or resides, permanently in a place, or who has a fixed resi- dence, as distinguished from an occasional lodger, or visitor, unless a statutory signification is given to the term, where used in a particular connection, different from its grammat- ical import, or its usual meaning in common parlance : Fer Ritchie, C.J., Ibid. See further note (s) p. 17t), and Case 9, Appendix. (q) The term " owner," having no delinite meaning in law, may refer to owners having the whole or partial interests in real estate: Hopkins v. Provincial Ins. Co., 18 C. P. 74. Owner includes a person in possession of land and claiming title as purchaser: McDougall \. McMillan, 25 C. P. 75; and that notwithstanding the land may be subject to a vendor's lien : Chatillon v. Canadian Mutual Fire Ins. Co., Li 1: im i 5 5 m\^ m ^ ii 202 MANUAL ON VOTERS* LISTS. [R.S.O. c. 10, (r), or occupant (s) of real property of the actual value of not less than the following : — *27 C. P. 450. The word " proprietor " has a less extensive meaning than owner, and may be construed as a possessor having some right in the land: Brown v. Grand Trunl; li. W. Co., 2i Q. B, 850. A deed conveying lands in fee simple to A, reserved to the grantor's "owi. use, benefit, and behoof the occupation, rents, issues, and p^'ofits of the said above granted premises,' for and durin^; tlie term of the grantor's life : Held, a conveyance in fee simple ; scd qmvre, whether the reservation was void, or whether only the reservation passed subject to the life estate: Simpson v. HarUnan, 27 Q. B. -^.'JO. A person possessed of two separate properties, in the same county, neither of which alone would give the necessary qualification to vote, but which together would be sufficient to qualify, is entitled to claim the two properties as giving him tho necessary qualification as a voter : Wood V. Hopper, 1 C. P. D. 192. But not where the properties are in separate counties : Beaver v. Watson, 1 Colt. 2(18. Nor where some are held in fee and others by lease. By clause seventhly {post), the term "owner" in places where there is no Assessment Roll, is not to apply to persons claiming lands not patented by the Crown. See p. 210. A trustee under a will, having no beneficial in- terest in the property assessed to him, cannot vote : South GrenviUe (Jones' Case) H. E. C. 103. (r) W re the tenancy of a house is annexed to an office or emplo^ ment, it depends upon whether the occupation of the house is such as to create the relation of landlord or tenant. Where v/ithout any obligation to reside in a partic- ular dwelling, an officer or servant chooses to occupy a house which is provided for him, the circumstance that he receives less salary or wages in consideration of the benefits he derives from occupying a house convenient for the dis- charge of his duty or service, or that he would have an allow- ance for rent or lodging money if he did not occupy it, will not prevent him from occupying as tenant, and having a right to vote: Hughes v. Chatham, 5 M. & Gr. 53. "There I 8. 7, SCB-S. 1.] MANUAL ON VOTERS LISTS. 203 is no inconsistency in tlie relation of master and servant and that of landlord and tenant. A master may pay his servant by conferring on him an interest in real estate, either in fee, for years, at will, or for any other estate or interest ; and if he do so tlie servant then becomes entitled to the legal incidents of the estate as much as if it were purchased for any other consideration. But it maybe that a servant may occupy a tenement of his master's, not by way of payment of his services, but for the purpose of performing them, required to occupy in the performance of his contract to serve his master : Per Tindal, C.J,, Ihid. A clerk who occupies a room in his employer's house, but is not bound to do so, and who if he resided out of the house would receive an increased salary to the value of the room, may be registered as a voter, although he would be obliged to give up possession at once if dismissed, or his employment otherwise ceased : Parker V. Campion, 5 Ir. C. L. 75. When residence in an official or other house is necessary or conducive to the official perform- ance of the duty or service required, and is either expressly or impliedly made a part of such duty or service, there the relations of landlord and tenant are not created, and such official, or servant, has no right to vote: Dobson v, Jones, 5 M. & Gr. 112. A toll collector occupying the toll house is not entitled to vote: Brockville (McArthur's Co.-e), H. E. C. 129. A sei'geant of militia occupied a house close to where the arms, etc., were stored. The house was assigned to him by the colonel to look after the stores, and if he left it with- out permission, he would be guilty of breach of discipline, and might he dismissed. A certain sum per week was deducted from his pay as occupier of the hou'ie : Held, not entitled to vote : Fox v. LktUiy, L. R. 10 C. P. 28u. A person in charge of a lunatic's estate occupied the farms vacated by tenants of the estate, and in his account, passed before the Master in '''hancery, entered his own name as tenant, and charged against himself the rent : Held, that he could not make himself tenant by his own act, and was not entitled to vote: Burton v. Lamjham, o C. B. 92. Where the voter was committed to prison, and the landlord's agent got possession of the house without the voter's consent, and let it to another Ml ja ' ,' 1 1 . ' ." ) f • i ; ' A - ; 1 'M 204 Assessed actual value. Joint own- ers. MANUAL ON VOTERS LISTS. [R.S.O. c. 10, In cities and towns, two hundred dollars ; In incorporated villages and townships, one hundred dollars (t). 3. Where any real property is owned or oc- cupied jointly by two or more persons, and is rated at an amount sufficient, if equally divided between them, to give a qualification to each, then each of them shall be deemed rated within this Act, otherwise none of them shall be deemed so rated {u). tenant whom the voter did not attempt to dispossess : Held, vote bad: Wigan {Jump's Case), "B. & Aus. 14G. It is not essential that the lessor should have a valid title to the demise ; and assuming any valid objection to exist, it would not effect the voter's qualification as "tenant" of the demised premises : Fowle v. Trevor, 1 Colt. 82. See notes («) to(i;)pp. 170-174. (s) See notes (/) to (m) pp. lGO-170. {t) See note (r) p. 179. («) By the Assessment Acts (R. S. O. cap. 180, sec. 19 and 42 Vic. cap. 32, sec. 3) the separate share of each joint owner or partner may be entered on the Assessment Roll. But when the un("'ivided joint interest is assessed, this clause disre- gards the actual value of each individual's share in the joint property, and divides the amount assessed among all the joint owners ; and if the total assessed value is sufficient to qualify all joint owners according to the statutory ratio of value, then all may be entered on the Voters' List. But if all the joint owners are not assessed, and if some of such joint owners are women, the shares of such non- assessed joint owners, and of such women, must be esti- mated together with the shares of those assessed ; and the whole assessed value divided amongst all who are actually and in law joint owners — whether resident or not — accord- s. 7, SUB-S. 2.] MANUAL ON VOTERS' LISTS. 205 Secondly. [As further amended by 49 Vic. c. 5, «. income 2 ;] — Every male person who is residing at the '^"■"*^^"^°' f ' ingto the statutory ratio of value. But this clause does not prevent each of the joint owners proving before the County Judge the actual value of his individual share in such joint property. Where four joint tenants and a doweress, whose dower had not been assigned to her, were assessed jointly, as occupants of real property, for iftOOO, the statutory value being §200 per voter : IlchI, that the interest of the widow should not be deducted from the assessed value, and that the four joint tenants were entitled to vote : Brockville {Gilroifs Case), H. E. C. 129. A widow's dower is a diminution of value : Rogers on Elec- tions 47. An estate in dowor is a freehold estate : Co. Litt. 021. The second husband of a dowress could vote im- der 20 Geo. III. cap. 17. Two partners occupied premises the title to which was vested in one of them : the assess- ment being sufficient to give a qualification to each, both partners were held qualified to vote ; South GrenviUe (Fitz- [ii'mhVs Case), H. E. C. 103. Where only one of two joint tenants was assessed to the statutory amount (S'200) for the joint property : Held, not entitled to vote : Ibid (Stew- art's Case). A and B possessed conjointly and by equal moities a property valued at $300. Neither could be put upon the electoral list, as the qualification for each was §200. Neither could they, if they had been conjointly, and by equal parts, tenants of a property for which they paid annually ^20 to $30, the qualification being $20 each. But if A owned one-third of the property, and B two-thirds, then B, as the owner of $200 of the assessed value of the property, could be put on the list and vote : lie Kamouraska Electoral Lists, 3 Q. L. K. 308. The provisions of the Im- perial Acts are similar to the above. Premises were jointly rated to two persons ; no common purpose for occupying the premises was shown, but by agreement each occupied distinct portions, paying rent and taxes for the same : Held, a joint occupation : Johnston v. Flood, 5 Jr. L. K. 49. m m 206 MANUAL ON VOTERS LISTS. [R.S.O. C.IO, 'j ; 1 [49 Vict, cap. 3.] time of the election in the [Electoral District] in which he tenders his vote and has resided therein ; i ! ;■ i; ii Premises wei-e occupied by a parish priest and seven curates ; each had seperate apartments ; the parish priest was irremovable, but the curates were liable to be removed : Held, that they were all joint occupiers as tenants at will of premises sufficient to give a qualification to each : Meyler V. Metcalfe, Ibid. 54. Premises were devised to one of four brothers, subject to charges for the other three. The four brothers continued the business under the old style of their father's firm, and except the claimant, occupied the pre- mises : Held, he was not a joint occupier: Iieard(m''s Case, 6 Ir. L. R. 420. The sole lessee of a mill took his three sons into partnership, and all resided upon the premises. The rent was charged to the partnership account, in which the four shared equally, but the receipts for the rent were pr en in the name of the lessee alone : Held, that the sons ».ere qualified : llogers v. Harvey, 5 C. B. N. S. 3. The lessees of a house, taken for the purposes of the Corn Law League and in charge of the servants of the association, were held to be occupiers, as distinguislied from the numer- ous other members of the association who subscribed to the funds (out of which the rent was paid) and who, as well as the lessees, transacted the business of the association at the house : Liickett v. Bright, 2 C. B. 193. A tenant of a dwelling house, otherwise qualified within the meaning of the Act, does not become a joint occupier by letting a por- tion of such house to a lodger : Brewer v. McGoicen, 30 L. J. C. P. 30. The essential difference between joint-tenants and tenants-in-common is, that joint-tenants have the land by one title, and in one right, and tenants-in-common by several titles, or by one title and several rights : 1 Co. Litt. 758. Coparceners, however numerous, have but one estate among them ; but, subject to the sufficiency of value, each may vote : Warren on Elections 70. J s. 7, SUB-S. 2.] MANUAL ON VOTERS' LISTS. continuously (v) since the completion of the last revised Assessment Eoll of the municipality, and 207 '■H ^ (v) " Resided therein continuously.'' Whether a per- son is a resident is a question of fact, and depends upon whether there has been such a degree of inhabitancy as to be in substance and in common sense, a residence : Wes- comh''sCase, L.B. 4 Q. B. 110. A pai'tnership carried on busi- ness in E. One partner resided more than seven miles from E, but he had the exclusive use of a bedroom and sitting- room in the business house, and he visited E every day except Sunday, to attend to business, and sometimes took his meals and slept there. Held, not an inhabitant and householder in E.: Dipstale's Cane: Ibid. 114. Where a rec- tor went to the continent for eight months, and assigned the rectory house as a residence, but retained three rooms which he locked up : Held, not a " resident" for six months, nor an "inhabitant" [or occupant] for a year : Duratit v. Carter, L. K. 9 C. P. 261. Wliere the claimant gave up the use of his house to another for three months, retaining, however, two rooms : Held, that as he had voluntarily given up the possession of his house for good consideration for such period, there was a break in his residence, and he was disqualified ; Ford v. Pye, Ibid. 2()\}, Where a house- holder, qualified as a voter in N, left it and resided in another borough for fourteen weeks, it was held, on his return to N, that his claim to vote in N was lost, as he had relinquished the franchise he possessed there, by the break of residence : Jeffren v. Kitchener, 7 M. ct Gr. 99 : s. c. 8 Jur. 138. A freeholder in E, who had a bedroom kept in his father's house there for his exclusive use, was absent during the statutoi'y period, serving as a clerk under articles to a solicitor in London : Held, that being bound by the articles of service he had neither the liberty nor intention to return whenever he liked, and therefore had not resided in E for the qualifying period : Ford v. Drew, 5 C. P. D. 59. He had not the power to leave London without breach of contract: Per Grove, J., Ibid. He must be assumed to 208 MANUAL ON VOTERS* LISTS. [R.S.O. C. 10, derives an income from some trade, occupation, liave intended to keep his contract ; and so must be as- sumed not to have had the intention to return : Per Lind- ley, J., Ibid. Undergraduates of Oxford and Cambridge who occupy rooms from which they are absent during the vacations, without the right to reside in or visit them, except by leave of tiie college authorities, cannot be held to have resired ;' .• ' Ive months in the cities named : Tanner \. Carter, ■ .'< D. 231. " The authorities as to constructive residence have no application, as soon as it is shewn that theccc jp'er cannot return to the premises during part of the year, at hih wn ^ :. jn : Per Cave, J., Ibid. Au officer of the army, serving v.'ich !us regiment in another locality, had rooms set apart for his exclusive use in his mother's house at E, and when he obtained leave of absence he resided there usually for three months in each year : Held, that being an officer subject to the will and pleasure of the Crown, he was not sui juris ; and as he could not return except on leave, he could not qualify : Ford v. Hart, L. R. 9 C. P. 272. Where a non-commissioned officer was absent from his residence on military duty for twenty-one days : Held, disqualified : Atkinson v. CoUard, 1(3 Q. B. D. 254. Four militiamen who were enrolled in the militia, and had been absent from the city on militia service from three to live years, except when they returned for a short time each year on furlough, voied at an election. Their wives and chil- dren occupied the premises rented by them in the city : Held, under a statute requiring voters to be inhabitants of the city for SIX months before the election, that they were qualified to vote : Hex v. Mitchell, 10 East 511. A militiaman is a soldier, and his absence out of a parish for the purpose of training as a militiaman, is no break in his residence : Horton v. Leeds, 5 E. & B. 595. Absence under a contract when a party has no intention of returning is a break in residence: Peg.\.Stapleton,llS,. &B.76G. Temporary absence in fulfilling a contract when there is an intention of returning, is no break in residence : Reg. v. Brighton, 4 E. & B. 286. 0. c. 10, 8. 7, 8cn-8. 2.] MANUAL ON VOTERS* LISTS. 209 )ation, t be as- L'r Lind- mbridge I during it them, be held named : ies as to 1 as it is !8 during bid. An another le in his absence ;h year ; pleasure ould not V. Hart, icer was enty-oue Q. B. D. itia, and three to me each md chil- y: Hehh the city qualified nan is a rpose of sidence : contract jreak in absence turning, I B. 236. calling, office or profession of not less than two hundred and fifty dollars annually (ic), and has But an intention to return at a remote period is a break in residence : Wellinntoa v. Whitchurch, 4 B. & S. 100. " The maxim that the husband's domicile is where his wife lives, applies only where a man is generally in one place, and occa- sionally elsewhere." Per Cockburn, C,.J., Ibid. Unmarried men who have fully severed the parental or home relation, and who have entered the world to labor for themselves, usually acquire a residence in the district where they are employed, if they are honestly pursuing their employment there with no fixed residence elsewhere : AUantown, Brightly on Elections 475. The mere fact that a person is willing to swear, and does swear, that he considers the district his home, is not sufficient to entitle him to vote, if the facts and circumstances satisfy the Court that his home in elsewhere : Ibid. A person in gaol for a portion of the qualifying period is not mi juris, and cannot be registered : Powell v. Guest, 11 L. T. N. S. 590. If a person is imprisoned he is not com- plying with the requisites of the statute. I will assume he had a house, and that he had a wife and family, and the anitnus revertendi as soon as his imprisonment might be over; but during the time he was in prison he had not the liberty to return, by reason of a wrongful act on his part leading to such a confinement as prevented his being bodily present : Per Ei'le, C.J., Ibid. Imprisonment in a place out of the parish on a conviction for felony is a break in residence : lieg. V. Pott (£• Shriiilcy, 12 Q. B. 143. But not an imprison- ment for non-payment of a tine upon a summary conviction : Itefj. V. Holbeck, 16 Q. B. 404. (w) The word "income" is ejui^dem generis with salary: Ex parte Bemcell, 14 Q. B. D. 301. Income is not that which comes in less an outgoing. In speaking of a man's income from an estate no one would deduct the interest payable on money borrowed. The income of the United Kingdom is not its revenue, less the interest on the national debt : Per Bramwell, B. in Reg. v. Southampton, L. R. 4 H. 14 ^'1 :U» 210 MANUAL ON VOTERS LISTS. TR.S.O. c. 10, been assessed for such income in and by the Assessment Roll of the municipality upon which the Voters' List used at the election is based (x). L. 472. " Income " means the total amount recoverable with- out regard to any outgoings : Per Lord Chelmsford, Ibid. 483. " Income," is the gross revenue of an individual whether it arises from rents of real estate, interest on money loaned, dividends on stocks, or compensation for personal services rendered in any trade, profession or occu- pation: Bunouijhon Taxation 159. "Income," when applied to the income ot a commercial business, in its natural and commonly accepted sense, should be construed as the balance of gain over loss : Lawless v. Sullivan, 6 App. Cas. 373, overruling s. c. 3 S. C. R. 117. The profits of a merchant in his business, including the value of his management, is not income : Sterling v. Mayor of Freilericton, 2 Pugs. N. B. 155. "Income" is derived from the trade, profession or calling, by the combined mechanical and intellectual labor of the person pursuing the trade, profession, or calling, even though such mechanical or intellectual labor is ap- plied in combination with, or directly to, real or personal property, and so tlie real and personal property may con- tribute to the production of the income, as would be the case in most trades such as cabinet-makers, coach-builders, ttc. : Per Ritchie, C. J., Ibid. The qualifying income may be derived from an office or employment held in other elec- toral districts than the one in which the income voter or wage-earner resides. (.r) The acceptance of this Income franchise by a person receiving an income under ^400 is voluntary ; for by R. S. O. caj). 180, sec. 7, such person may avail himself of the right of exemption, or " may require his name to be entered on the Assessment Roll for such income, for the purpose of being entitled to vote at elections for the Legislative As- sembly and Municipal Councils ; and such income shall in such case be liable to taxation like other assessable income or property." Ill ^1 S. 7, 8UB-8. 4.] MANUAL ON VOTEUS LISTS. 211 Thirdly. [As further amended by 49 Vic. c. 3, s. wageeam- 3:] — Every male person entered on the last chlso!^*"' revised Assessment Eoll as a wage-earner (y), who is residing at the time of the election in the [Electoral District] in which he tenders his vote, ^f^X^^-: and has resided therein continuously (z) since the completion of the last revised Assessment Roll of the municipality, and who has during the twelve months next prior to being so entered, derived or earned wages or income from some trade, occupation, calling, office, or profession, of not less than two hundred and fifty dollars (a). 2. In estimating or ascertaining the amount of how wages wages or income so earned or derived by any J^^^^^® ^^^j person so entered as a wage-earner in the As- sessment Roll of a municipality, not being a city, town or village, the fair value of any board or lodging furnished or given to or received, or had by such person as or in lieu of wages or as part thereof shall be considered or included (6). Fourthly. [As further ameiided by 49 Vic. c. 3, s. Househoid- 3 ;] — Every male person entered as a house- '" or. (y) See note {e) p. 135. (z) See note {v) p. 207, on "continuous residence." (a) This franchise is practically the same as the " Income voters' franchise." The only difference between the two franchises is in the title of the voter. By 49 Vic. cap. 38, sec. 6, "wage-earners" are exempted from taxation in re- spect of their earnings or income under 8400 ; but income voters are taxable upon $250 and over that amount. (h) See note {>•) p. 202, on the occupation of official houses or rooms in lieu of salary or wages. 212 MANUAL ON VOTERS LISTS. [k.S.O. c. 10, hi > N9 Vic. cap. 3]. Lanclhold- e,'B' Boua. [49 Vic. cap. 3j . holder (c) in the last revised Assessment Roll of the local municipality in which he tenders his vote, who is residing at the time of the election in the [Electoral District in which he tenders his vote] and has resided there continuously since the completion of the said last revised Assessment Roll {d). FiftJily. 'As further amended by Jfd Yxc. c. S, s. '2 :] Every landholder's son (c) who is resident at the time of the election in the [Electoral District"! in which he tenders his vote, and has resided therein with and in the residence or dwell- ing of the landholder whose son he is, for twelve months next prior to the return by the assessors of the Assessment Roll (/) on which (c) See note {z) p. 182. {d) See note (c) p. 207, on " continuous residence." {e) See note (h) p. 18. But the form of oath to be taken by a Landholder's son, at the election, requires him to swear that his father (or mother, &c.), was "owner, tenant or oc- cupant of the property in resjpect of which your name is so as aforesaid entered upon the said Voters' List." See 48 Vic. cap 2, form 20. The sons of " occupants " are not included in the " Landholders' sons " franchise. {f) " Twelve months next prior to the return by the assessor of the assessment Roll." This condition as to a year's residence with his father in the Electoral District prior to the date of the assessor's return of the Assessment Roll, may sometimes prevent a landholder's son from being registered as a voter ; as in cases where the father has moved from one Electoral District to another within the qualifying year. The father's title may be acquired immediately before the date of the final revision of the Assessment Roll; and as no prior period of ownership or residence is prescribed at,' s. 7, srrn-s. 5. J MANUAL ON VOTERS LISTS. 213 the Voters' Lists used at the election is based, and who has been duly entered and named in said Assessment Eoll as such landholder's son. 2. Occasional or tem])orary absence {(i) from occasional such residence or dweihng tor a tnne or times not exceedinpj in the whole six months of the twelve hereinbefore mentioned, shall not operate to disentitle a landholder's son to vote under this Act. [The following was added by 49 Vic. cap. S, sec. 2 : — The time so spent by any such land- holder's son, as a mariner or fisherman in the prosecution of his occupation, or as a student in any institution of learning, situate within the as a condition of registration in his case, his name may l)e placed on the voters' Ust at the final revision, provided a proper application for that purpose has been] made to the County Judge (see pp. 33, 39). But the sons of such land- holder, not having been resident within the Electoral Dis- trict for the statutory year as above required, cannot be entered on such Voters' List until the third year of such land- holders residence upon the assessed property. See note (e) p. 4, for the date of the " return," and note (c) p. 22, for the date of the "final revision," of the Roll. {g) The term " occasional absence " is a mixed question of fact and law. "Occasional" is defined to mean: "inci- dental, casual, occurring at times, but not regular or sys- tematic." It may be said to betheconverse of "continuous," or " permanent." See further note (r) p. 207. A physical diffi- culty, not a legal difficulty, as when a man is travelling on the continent : Atkinson v. CoUard, 10 Q. B. D. 254. Where on the Voters' List under "place of abode " a voter was stated to be " travelling abroad," his name was rightly retained on the Voters' List : Walker v. Payne, 2 C. B. 12, s. c. 9 Jnr. 1014. Otherwise persons living or travelling abroad on public business, or for pleasure, might lose their votes; Rogers on Elections 143. 1 U \' ■i >• < i> ';»! 5 214 Indians. MANUAL ON VOTERS LISTS. :.R.S.O. c. 10, Province of Ontario (/<) shall be considered as spent at home, and as having for the purposes of this Act been spent and passed with and in the residence as aforesaid of the landholder whose son he is. J ISixthly. Where there is a Voters' List, all Indians, or persons with part Indian blood (i), who (h) This is in addition to the period of " occasional absence " allowed in the precedinj^ part of this clause ; and it counts as " spent at home," an absence which is compulsory for a jiortion of the qualifying period, as in the case of Oxford and Cambridge undergraduates : Tanner v. Carter, IG Q. B. D. 231. Under the election laws of the United States a student at college, who has a house elsewhere, and resides at the institution for the sole purpose of education, does not thereby acquire the right to vote in the district in which the college is situated : lirin No. 2, property ne, 187H, me, 1878, he appeal jaessecl in . by Car SB 386 names arty, or in 16 Assess- revisecl by previously he Court lorrection. n were en- jerty. No Hunter & conceded , take the !C. 10, cap. )f the Ben- udge asks of A B, or the appli- ;es can be iwn should property ; .68 of Hun- assesssed ; ligher sum than the Bennett property, an order can be made under sec. C2 of the Act for Best to pay tlie difftronco in taxes. I am of opinion tliat these changes cannot be made upon the appli- cation of A B. The case falls precisely within the terms of sub-section 3 of section 8 of The VoUth' Lixtx Act. Having regard to whole scope of the provisions of the statute, I think that tlie intention is that such changes should be made only upon the application of the person to whom the property has been trans- ferred, or who is in possession of tlie same. The other questions proposed by the learned Judge upon the hypo- thesis that such changes could be made at the instance of any voter who may choose to apply, are very suggestive of the confusion and embarrassment which that interpretation of the statute would create. Thomas Moss, C.J. A. Osgoode Hall, 21st December, 1878. Case 8.— COUNTY OF ELGIN. Opinion of Chikf Justice Moss. Where the oivner of a farm and his sons do not reside or have their home or sleeping apartments on the farm owned by such owner, but on another farm of which he is leKnee, liis sons cannot be entered on the Voters' List as *' Farmers' Sons." In order to constitute a residence a person must jiossess a home and a sleeping apartment. Tlio County Judge of Elgin has stated a case to the following effect Ric.-.trd A. Norman and James O. Noi'man are the sons of Richard Norman, the owner in fee of 50 acres of land, which he cultivates as a farm. His sons live with him at home, but father and sons all live on another farm c'' which the father is only tenant for a term of years. The two farms dt not adjoin each other, but are divided by the farm of an adjoining proprietor. Both sons assist the father in cultivating both farms. At the time of the assessment the father occupied both farms, but the dwelling house is on the leasehold. Both sons are over 21 years oi age, and natural born subjects of Her Majesty. 230 MANUAL ON VOTERS LISTS. :.i'f-i U The father does not pay either sen wages, or give them part of the produce of either farm, and they are in all other essentials " Farmer's sons." The question is whether under the circumstances, Richard A. Norman and James O. Norman are entitled to be entered on the Voters' List as Farmer's sons. It appv'ars from this statement that the question is, whether there has been such a residence on their father's farm as to entitle them to the franchise. It may be not unimportant to observe that the right of a farmer's son to vote does not follow from, and is not co-extensive with, his right to be entered on the Assessment Roll. If he is a bona Jlde resident on the farm at the time of the making of the Assessment Roll, he is entitled to be entered, rated, and assessed on iUe Roll, in respect of such farm, in a certain prescribed manner va lying with the circumstances (Assessment Act, sec. 20). In order to entitle him to vote he must be resident at the time of the election in the District or Municipality in which he tenders his vote, and must have resided therein, on the farm of his father or mother, for twelve months next prior to the return by the assessors of the Assessment Roll on which the "Voters' List used at the election is based. Still, each of these provisions contemplates a bona fide residence on the farm as essential. The term " farm " has received a precise definition in the statute, namely : " land actually occupied by the owner thereof, and not less in quantity than twenty acres." There is no doubt that in this case the father is the owner and actual occupant of the land, in respect of which the franchise is claimed by his sons. A residence on this farm would clearly entitle them to the right, while residence upon the farm of which their father is not owner, but only tenant, would be insufficient. The proper meaning of the term " residence," as used in relation to rating or voting, has been discussed in numerous English authorities, which I have examined. No precise definition has been formulated, but rather the Courts have been anxious to point out that there may be shades of difference in the sense in which the word is used in different Acts. But in all the idea of a home and a sleeping apartment seems to be either expressed or implied. In a standard work on registration it is laid down that " in order to constitute residence, a party must possess at least a sleeping apartment," and this statement seems to have received the approval of Chief Justice Erie, in Powell v. Guest (18 C. B. N. S. 72). The opinion which I have formed is, that the applicants are not art of the Farmer's lichard A. ;d on the ther there le them to i the right -extensive 3 is a bona Assessment \e Roll, in lying with ntitle him District or ve resided jnths next I on which li of these i essential. le statute, id not less II this case in respect ice on this e upon the would be as used in IS English 1 has been it out that he word is a sleeping standard constitute iient," and ief Justice its are not OPINIONS OF THE JUDGES. 231 residents upon the farm which is owned and occupied by their father. Their residence is upon the farm of which he is lessee. It cannot be pretended that they have two residences ; nor, on the other hand, can it in my judgment be held that the two properties are one farm, so as to transfer the actual residence from the fifty acres which the father does not own, to the fifty acres which he does own. The circumstance that there is only a single farm between the two pro- perties does not improve their position. It is unnecesst.ry now to inquire whether, if they lay side by side, the exigency of the statute would be satisfied. It is sufficient to say that the intervenir.g n divides them as effectually for the purposes of this Act, as if xhey were at opposite corners of the Township. I therefore answer the question in the negative. Thomas Moss, C.J.A. Osgoode Hall, 11th January, 1879. Case 9.— COUNTY OF ELGIN. Ol'IXION OF Cli.EF JUSTICK MoSS. A person residinii and wi /•kinp on a farm witJi his fatlwr, under a promise of a deed of part of the farm, may he entered as *' owner " on the Assess- ment Roll; but he should be entered as a ^'Farmers son'' on the Voters' List. Persons sliould not be disfranchised if the n hare a right to vote; and notices of appeal should be amended, if necesxary, to j^reserve the franchise. The failure of the Assc'^sor to satiifij the incidental requirements of the AsKes!i)iient Act docs nut enable a complainant to luive names struck off the J'oters' Lint. The Assessor is not to determine u-Jietlier there has been a sufficient resi- deiwe to qualify a person as a voter. The County Judge of Elgin has, under the provisions of the Act, stated the following case for the opinion of the Court : " Matthew F. Haney, of the township of Malahide, was assessed as owner of a farm in Malahide — and was inserted as owner of the same in the Voters' List — and an appeal was made to me to strike his name off the list, because he was not owner at the time of the assessment. mv >i «' ' »■' i '1 .' n m i 1 ' 1 \ I ? i i" - i Ltk A. 232 MANUAL ON VOTERS LISTS. " Previous to July, 1877, he had lived away from home. His father on the 16th July, 1877, sent for him arid told him if he would come home and live and help him in the work of the farm, he would give him a deed and convey to him in fee simple fifty acres of the farm. Matthew F. Haney complied with the father's request, but the father had not made the conveyance at the time of the assessment, and the son had no writing from the father to bind him to the agreement. " The son is a shoemaker, and besides helping the fatheron the farm, makes boots and shoes for the family of his father without remuner- ation, and he lives at home working for his father, who derives the full benefit of all his work and earnings without wages. " It ia true he is not owner, or occupant, or tenant of the farm, and it is contended that because there is no application on his own part, or on the part of anyone else competent to make a complaint, he must be altogether struck off the list as ' owner,' and that the Judge has no right to change his designation on the list from ' owner ' to ' farmer's son.' " On the other hand it is contended, that if a case is once properly brought before the Judge, by any competent person, altliougii the notice be not technically correct, the Judge is obliged, upon hearing the facts, to decide according to the merits and justice of the case, and to change or amend the complaint and dispose of it as the facts warrant. " I therefore desire the opinion of the Court, or a Judge, as to whether I may not, in view of the object in view, in correcting and amending the Voters' List, and in view of the facts of any and every case, aim at placing or retaining every name on the Voters' List which ought to be inserted on it ai)on a complaint made, and of strik- ing off every name which ought not to have been inserted, provided the case is brought before me on appeal in a regular way, whether the notice be specifically and technically correct or not. It occurs fre- quently that a complaint is made of one case, whilst the facts devel- oped at the time of evidence being given shew that an entirely differ- ent cause of complaint might and ought to have been made ; and it also frequently occurs that a complaint is made that a certain individ- ual is not ' owner ' of a lot described in a certain way on the Voters' List, whereas the facts upon the hearing shew that he is not ' owner ' or ' tenant,^ or that he is ' occupant ' and had a right to be so inserted for that, or some other lot ; or it may be shown that although he is OPINIONS OF THE JUDGES. 233 as to ig and every List strik- ovided ler the s fre- :level- differ- and it divid- /^oters' nowr ' serted he is not ' owner ' of the land d'^scribed, but that he is owner of some lot, in the same or some other concession, or that his name is wrongly placed in a certain polling s'lb-division, whilst his name ought properly to have been placed in another polling sub-division. I i.ieret'ore desire the opinion of the Court, or a Judge, as to whether I am bound by the strict technicality of the notice given, or whetiicr I ought not in the fullest aim at carrying out the intentions of the Legislature, when a case is once brought before me, to allow any other eLctor who chooses to intervene and have a notice amended if necessary, and to give the fullest scope for the purpose of making the Voters' List as complete as it is in my power to make it, when an error is made mani- fest by a regular notice, or comes up incidentally at the hearing." If I correctly apprehend thecase of Matthew F. Haney, it is that being a farmer's son, resident upon fifty acres of land, owned and actually occupied by his father, he has been entered, rated and assessed on the roll in respect of such farm as " owner ;"' that this entry has been duly transferred to the Voters" List ; and that his right to have his name retained on that list is contested, on the ground that he has no title to the land either at law or in equity. If that be a correct statement of the case, I think that his name should remain on the list, and the Judge may add the description " farmer's s an." Haney had a perfect right to have his name entered on the roll as an owner of the land. The 1st sub-sec. of sec. 20, provides that the son may be entered jointly with the father, and as if such father and son were actually and bo)ia fide joint owners tliereof. The (Jtii sub- sec, of the same section provides that a farmer's son. entitled to be assessed under the preceding sub-sections, may require his name to be entered and rated on the roll as a johit or separate owner, occupant, or tenant of the farm, as the case may be, and in that esent he be- comes liable for the taxes as such owner, occupant, or tenant. By virtue of these tvvo sub-sections Haney had the right to be entered as owner, either jointly with his father or separately. That is the sub- stance of the direction given witli reference to his entry upon the roll. He is to be assessed as owner, and in that capacity to be liable for the taxes. It is true that in the directions given to an Assessor as to the mode of prei)aring his roll, it is prescribed that in the 1th column he shall state, according to the best information to be had, whether the party is a Freeholder, HouselK^lder, Tenant, or Farmer's Son, by in- serting opposite the name of the party the letter " F," " H," " T," or \f 234 MANUAL ON VOTERS LISTS. I t I . ft ?t ill , li :.i iT :i| I " F S ;'' and no doubt it is the intention of the Legislature that the description should be given by the Assessor. But I am of opinion that the failui-e of the Assessor to satisfy this incidental requirement of the statute, does not entitle the complainant, under the circum- stances of this case, to have Haney's name struck off the list. He was, in point of fact, assessed correctly enough, because he was assessed as owner ; and the mere assessment, while 'rendering him liable for the taxes, did not entitle him even prima facie to vote, because the Assessor is not made the judge to determine whether there had been a sufiicient residence. He now shows that he is enti- tled to vote in respect of this property for which he was entitled to be, and actually was, assessed as owner. The answer I have recently given in a case submitted by the County Judge of Halton (a), shows that under such circumstances a person should not be disfranchised, and that, if necessary, the notice may be amended, and the list corrected accordingly. I have anxiously considered the general questions which the learned Judge suggests ; but I do not think that I can venture to propound any general rule as to the spirit in which the '[irovisions of the Act are to be worked. The great principles which are kept in view have been enunciated in manj' cases, when their statement was apposite to the question under adjudication, and a repetition of these would be useless (b). A convenient summary may be found in Mr. Hodgins' very useful " Manual on the Law a{fecting Voters' Lists.''' 1 may add, in relation to tiiese "general questions," that I entirely concur with the observation made by Mr. Justice Patterson in answer- ing a question proposed by the County Judge of Peel (c), where he points out the expediency of presenting a direct statement of facts. Thomas Moss, C.J A. Osgoode Hall, lltli January, 1879. (a) See Case 0, p. 226. (b) The Revising Barrister is substituted for a discussion at the polling booth, pessimi exempli, whether the party is qualified or not. The question for the Revising Barrister is, whether at the time when the claimant claims to be put upon the registrar he would, if an elec- tion was being held, be a partv qualitied to vote : Per Erie, C. J., Powell v. Bradley, 11 L. T. N. 8^003. (c) See Case 2, p. 219. OPINIONS OF THE Jl'DGEg. 235 Case 10.— COUNTIES OF LEEDS AND GRENVILLE. Opinion of Chief Justice Moss, Personti omitted from, but entitled to be entered on, the Assessment lioU may be entered i the Voters' List. Persons entered on the Assessment Roll /or real property or income, may be entered on the Voters'' List for other property than that for which they should have been assessed. A person assessed for statute labour may be entitled to be entered on the Voters' List ; but lie is to be treated as if his name did not appear on the Assessment lioll. The Junior Judge of the County Court of the United Counties of Leeds and Grenville has submitted, for the opinion of the Court, a case of which the material facts may be thus stated : A notice is given by a voter, in accordance with the Act, com- plaining that Ormond Jones, the younger, ought to be assessed as ocfjupant or tenant of a certain lot owned by and assessed to William H. Jones. It was shown that Ormond Jones was a tenant under a demise which expired in the spring of 187S, when the term was ver- bally extended for a year. The property is of sufficient value to entitle him to vote, but his name is not entered on the Assessment Roll. The learned Judge was himself of opinion that Ormond Jones was entitled to be entered upon the Voters' List, but he notes that as there have been decisions which appear to conflict with this view,, he deemed it better to state a case. He therefore asks the following questions : 1. Is the respondent entitled to be entered upon the Voters' List, he having all the requirements except that his name is not entered upon the last revised Assessment Roll ? 2. Is a respondent similarly situated, but whose name is entered upon the latest revised Asesssment Roll, for other real property or for income, entitled to be entered upon the Voters' List for the property not assessed to him, but in respect of which he would have the right to vote had he been assessed for it, as he ought to have been ? 3. Is a respondent, similarly situated, entitled to be eiitered upon the Voters' List in respect of the property for which he ought to have been assessed when his name is entered upon the last revised Assess- wmmmmmm n 236 MANUAL ON VOTERS LISTS. ment Roll, not for property or income, but under sees. 77 and 79 of The Assessment Act for statute labour only ? I answer ths first question in the affirmative. I think that the reasonable construction to be placed upon the 8th section is, that persons in the position of Mr. Jones may be placed on the list ; but however that may be, the express language of the 22nd section puts the matter beyond doubt. No other intelligible construction can be suggested upon an enactment that *' if any person not assessed is found entitled to vote, the municipality shall be entitled to recover taxes from him and to enforce payment thereof, as if he had been assessed on the roll, for the amount found by the Judge," except that it contemplates the possession by the Judge of the power of placing a voter's name upon the list, although it does not appear upon the roll. As to the second question, I am of opinion that the appearance of a voter'" name on the list in respect of other real property or income for which he was assessed (which, as I understand the question, is the only circumstance that distinguishes it from the first), does not make any difference in the right or liability of the voter to have his name associated upon the li 3ts with the property for which he should have been assessed. The third question must also be answered in the affirmative. For the purposes of the Voters' List, such a person is to be treated as if his name did not appear on the Assessment Roll. Thomas Moss, C.J. A. Osgoode Plall, 11th January, 1879. , \„ m SCHEDULE OF FORMS. 237 SCHEDULE OF FOKMS. .4. ! Voters' List 18 FORM 1.— (Section 2, sub-sec. J, p. 5.) Form of Voters' List. Municipality of SCHEDULE OF POST OFFICES. 1. North Augusta, 3. Wright's Corners, 2. Maitland, 4. Prescott. POLLING SUB-DIVISION, No. 1. COMPRISING, Etc. -.—(Giving the limits.) Part I. — Persons entitled to vote at both Municipal Elections and Klectioiis to the Legislative Assembly. No. on Roll. Name. Lot. Con. or Street. Post Office Address. G Anderson, Henry. Andrews, John Archer, Jauies Brown, Simon Burton, Samuel ... Etc. N\V I G VV. 14 acres 8 2 W. *9 E. il7 Etc, 3 1 G 2 4 Etc. Owner 1 14 Tenant 4 1 Income 4 50 71 Landholder's Son See Suh-Diviidon, Xo. Etc, 3 2 Etc. Part II. — Persons entitled to vote at Municipal Elections only. No. on Roll. Name, Lot. Con. or Street. Post Office Address. 4 .Archer, Henry Burke, Edmund... Etc. 4 W. i 17 Etc. 3 4 Etc. Owner 2 82 Farmer's Son Etc. 3 Etc. Part III. — Persons entitled to vote at Elections to the Legislative AsSEMHLY ONLY. No. on Roll. Name. Lot. Con. or Street. Post Office Address. 43 Acroyd. James Amos, Joseph Etc. N.J 3 Etc. 4 7 Etc. Tenant 3 8 Owner 3 Etc. Etc. POLLING SUB-DIVISION No 2, COMPRISING, Etc. \—{Qimiij the limits). Etc., Etc., Etc, 42 Vie. cap, 3, sec. 9 ; 48 Vic. cap. 3. sec. 3. !t: tf w I'M •'' J :; ■ 't 238 MANUAL ON VOTERS' LISTS. FORM 2. {Section 5, p. 29.) Cebtificate to be endorsed on Voters' List. I, A B, Clerk of the Municipality of in the County of , do hereby certify that parts one and three of the within (or 'above) list constitute a correct list for the year 18 of all persons appearing by the last revised Assessment Roll of the said Municipality to be entitled to vote at Elections for Members of the Legislative Assembly ; and that parts one and two constitute a correct list for said year, of all persons appearing by the said roll to be entitled to vote at Municipal Elections in said Municipality ; and I hereby call upon all electors to examine the said list, and if any omissions or other errors are perceived therein, to take immediate procejdings to have the said errors corrected according to law. Dated this day of A B, Clerk of FORM 3. (Section 7, j). 30.) Clerk's Notice of First Posting of Voters' List. Voters^ List, 18 . — Municipality of the County of of Notice is hereby given, that I have transmitted or delivered to the persons mentioned in the third and fourth sections of " llie Voters' Lists Act,'' the copies required by said section to be so transmitted or delivered of the list, made pursuant to said Act, of all persons' appearing by the last revised Assessinent^Roll of the said Municipality to be entitled to vote in the said Municipality at Elections for Mem- bers of the Legislative Assembly and at Municipal Elections ; and that said list was first posted up at my office, at on the day of , 18 , and remains there for inspection. Electors are called upon to examine the said list, and, if any omissions or any other errors are found therein, fo take immediate proceedings to have the said errors corrected according to law. Dated, Ac. AB, Clerk of said Municipality. SCHEDULE OF FORMS. 239 FORM 4. (Section 8, Sub-sec. 2, p. 38.) Voter's Notice of Complaint on grocnd of Disqualification. («) To the Clerk of the Municipality of the Town of I, Anffus Bell, a voter {or "a person entitled to be a voter") in the said Municipality (or " for the Electoral District in which the Muni- cipality is situated"), complain that the name of John Jack is wrongly entered in the Voters' List for the said Municipality, he being a person disqualified under the section of " The Election Act :" And take notice, that I intend to apply to the Judge in respect thereof, in pursuance to the statute iu that behalf. Dated the day of 18 . Axors Bell, Residence — Township of York. FORM 5. (Section 8, Sub-sec. 3, p. 38.) Notice and Application hy Votku to whom thk peuson assessed has transeeiuied property. to the roters' tted or fsons' ^pality Mem- and I the jction. If any Mediate oality. To the Clerk of the Municipality of the Town of I, Luke Dornu, a person entitled to bo a voter in tlie said Munici- pality, complain that tlie name of Peter Short, is wrongly inserted in the Voters' List for tlie said Municipality, he luiving ])efore the final revision and correction of the Assessment Roll transferred to me the property in respect to which his name is entered on the said list (or " parted with the property in respect to which his name is entered on the Voters' List, and that T am in possession of the same') : And take notice, that I intend to apply to the Judge to have my name entered on the said list, instead of the said I'eter Short, pursuant to the provisions of the statute in that behalf. Dated the day of 18 Luke Doran. (a) This notice should point out in more explicit terms the grounds of the alleged disqualifications ; — such as naming the disqualifying office ; or stating the corrupt pi*actice cnarged against the voter. See notes (/) p. 38, and (y) p. 80. . m4 ■\4: .■■I m 'M-l: m S:5 i \t I I ^ H 240 MANUAL ON VOTERs' LISTS. FORM 5«. {Section 8, Sub-sec. 4, p. 39.) Notice and Aitlication by a i'euson uxdeu the age ok twenty-one YEAK8. To the Clerk of the Municipality of the of I, /'' A/, hereby apply to have my name entered on the Voters' List (or Assessment Roll and Voters' List, as the case may he), for the Municipality of on the ground that I will be of the full aj^je of twenty-one years, on the day of 18 , being within sixty days from the date of the final revision and correction of the Assessment Roll, in respect of the following real property ((lexer ibhifi it), or in respect of my income of | , as the case may he), pursuant to " The Voters' Lists Act.'' Dated this day of 18 (Signed by applicant.) FORM oh. {Section 8, suh-sec. 5, p. 11.) Notice and Application by a Landholdeu's Son. To the Clerk of the Municipality of the of I, F A, hereby apply to have my name entered on the Voters' List, (or Voters' List and Assessment Roll, as the case may be), for the Municipality of , on the ground that I am a landholder's son entitled to be assessed under the Assessment Amendment Act, in respect of the following real property (descrihiny it and giviny father's name), pursuant to " The Voters' Lists Act." Dated the day of 18 (Signed by applicant.) FORM 6. (Section 9, p. 45.) Voter's Notice of Co.mpl.unt. To the Clerk of the Municipality of the Town of of I, James Smith, a voter (or " person entitled to be a voter ") for the Electoral District of , in which the said Municipality is situated, complain (state the names of the persons in respect to whom co)n- plaint is made, and the yround of , complaint touchiny each person respect- ively — or set forth in lists as follows, varyiny according to circumstances), that the several persons whose names are set forth in the subjoined list No. 1, are entitled to be voters in the said Municipality, as shewn in said list, but are wrongfully omitted from the Voters' List. That SCHEDULE OF FORMS. 241 the several persona whooe names are mentioned in the first column of the subjoined list No. 2 are wront,'fully stated in the said Voters' List, as shown in said list No. 2. That the several persons whose names are set forth in the Ih'st column of the subjoined list No. ii are wrouf^fully inserted in thesaid Vc^ers'List, as shown in said list, No. 3. And tiuit then- are errors in the description of the property in respect to which the names respectively are entered on the Voters' List (or stating otlier errors), as shown in the subjoined list No. 4. And take notice, that I intend to apply to the Judj^e in respect thereof , pursuant to the statute in that behalf. Dated the day of 18 Jamks Smith, Residence — Township of Bchy. |i-s' List, for the holder's Act, in father's Lists of Complaints mentioned in the above Notice of Complaint. List No. 1 {shewing voters wrongfuUij omitted from the Voters' List.) NAMES OF PERSONS. GROUNDS ON WHICH TIIEY ARE ENTITLED TO BE ON THE voters' list. James Tupper. . . . Simon Beauclerk. Angus Blain Tenant to John Frazer, of N. J lot 1, 2nd Con. Owner in fee of N. W. J lot 0, in 8th Con. Assessed too low — property worth $ List No. 2 (sheiciug voters xcron(,fulUj named in the Voters' List.) for the bality is iom com- Irespect- \tances), [bjoined shewn That NAMES OF persons. polling SUB- DIVISION. PART OF LIST. 1 1 2 THE ERRORS IN STATEMENT UPON voters' LIST. Joshua Townsend .. John McBean S. Connell 2 4 3 Should b'^ Joseph Townsend. Should be John McBean the younger. Should be Simon O'Connell. «tc. &G. 16 242 MANUAL ON VOTERS LISTS. LiHT No. 3 {shewing personn ivroncffuUy imertcd in the Voters^ List.) Imti NAMES OF PanSONH. POMiINO HUU- DIVISION. PAIIT OK LIST. 1 2 2 STATEMENT WHY WRONOFULLY IN8EBTEB IN VOTKIIS' LIST. Peter White John May David Walters .... 4 2 Died before flnal revision of roll. Tenancy expired — left the country. Assessed too high— property worth under ^ Ac. &c. List No. 4 {ahewinri voters whose propertt/ is crroneoushj described in Voters' Li.^t, . „ ^ i ^ • ' *^"^ "^^*^ notice, that Tvhether you appla? or not! "^ determine the said complaint, CouLy of" °' ^"^ ^"^'^"^- '''' J-^g« of the County Court of the AB, Clerk of the said Municipality, and constituted Clerk of the said Court. To Entered on said Voters' List. 246 MANUAL ON VOTERS LISTS. FORM 13. {Sec: • u 10, ^j. 51.) Is m ■ SEAL. - ScBPtENA. "I ViCTOitiA, by the Grace of God, of the ITnitecI Kiii'fdoni of Great Briti Ontario : County of I- Kingdom of Great Britain and Ireland, To Wit. j Queen, Defenf'er of the Faith. To Greeting: We command you, that, all excuses being laid aside, you be and appear in your proper person before our Judge of our County Court of the County ot , at , on the day of ,18 , at o'clock in the noon, at a Court appointed, and there and then to be held, for hearing complaints of errors in the Voters' List for 18 , of the Municipality of the of , in the County of , and for revision of the said Voters' List, , then and there to testify to all and singular those things which you know in a certain matter {or matters) of complaint made and now depending before the said Judge, under " The Voters' Lints Act,'^ wherein one is complainant, and which complaint is to be tried at the said Court. Herein fail not. Witness, His Honour , Judge of our said Court at the day of , iu the year of our Lord one thousand eight hundred and . AB, Clerk. B ■ ;; FORM 14. {Section 11, p. 58.) Report of Clerk when applying for Certifica.te. To the Judge of the County Court of the County of I, , Clerk of the Municipality of . in the said County of , do hereby certify as follows : That I did, on the day of , 18 , post up, and for a period of thirty days next thereafter keep posted up, in a conspicuous place in my oflice at , a true and correct printed copy of the Voters' List for the said Municipality of for 18 , made iu pursuance of " The Voters' Li)its Act,'' with the cer- tificate required by section five of the said Act endorsed thereon. That I did also duly deliver and transmit by post, by registei'cd letter (or, "by parcel post registered," or, "by book post"), the required number of similar printed coiiies of the said Voters' List, with my certificate endorsed, to each and all of the persons entitled to the same under sections tliree and four of said Act. SCHEDULE OF FORMS. 247 That I did on the day of , 18 , cause to bo inserted in the newspaper called the " ," published in , the notice re(iuired by section seven of the said Act. That no j^)erson gave me nor did I receive any written notice of complaint and intention to apply to the Jud^e or Junior or acting Judge of the County Court of said County of in respect to the said Voters' List within tliirty days after I, the said Clerk, had (lobted up the said List in my office, as directed by the provisions of the said Act. And that to the best of my knowledge and belief, I have complied with the several i-e(]uirements of the said Act, so as to entitle me to apply for certified copif^s under the eleventh section of the said Act; auii I l. AGENT of objectors may sign notices, -10 ; may have inspection of documents, 114. AGENTS FOR ELECTION disqualified, 180. ALIENS discjualified, 147, l'J2, lil8; clerk not to adjudicate respecting, 7 ; statutes respecting, 195. ALLEGIANCE, law of, 192-195. ALPHABETICAL list of voters, 2, 5, 9. AMBIGUITY in Act, 13, 19, 03, IOC, 109, 114, 135. AMENDMENTS to be allowed, 73-75, 127, 129, 169, 219, 222, 231 ; statutory rules as to, in Provincial Courts, 73. APPEAL from Court of Revision to Judge, 5 ; to Superior Courts, 65. APPEAL, COURT of, opinions ot Judges on cases submitted by County Judges, 117-121, 218-230. APPEAL, notice of, 31, 33, 34, 41, 46, 49. APPELLANT.— .SVt'CoMl'LAI.NANT. ASSESSMENT of property, foundation of electoral proceedings, 4 ; fraud respecting, 72. ASSESSMENT IIOIjL, prima facie evidence of right to vote, 2, 4, 9, 21, 30; final revision of, 3, 5, 21-23; binding on clerk, 0, 9 ; not binding at Revision of Voters' Lists, 35 ; Supplementary, 35, 83, 85. ASSESSORS, duties of in assessing, 5, 10, 71, 72, 95, 180, 231 ; penal- ties on, 72, 79, 87, 90, 122. ASSOCIATION, members of, when qualified, 100, 206. ATTENDANCE of witnesses, 51-68 ; how enforced, 52, 54 ; fees for, 54. m n I (if n U I" ' h ! U' i t 1;': i '" 254 INDEX. BALLOTS, recount of, 122. BENEFICIAL INTEREST gives tho right to vote, U3, 145, 148, ir/2, 1(58. BRIBERY, a disqualification, 103, 108, 198. BRITISH SUBJECT, meaning of, (5, 1»2 ; clerk cannot dotormiue right of, 6. BRITISH TERRITORY, what is, 193. CERTIORARI, lies to review limited jurisdiction, 53, 68. CERTIFICATE of Judge on Voters' List, 61. CHAMBERS, or Offices, when a qualilicacion, 159, 173, 181. CLERK OF :\IUNICIPALITY, duties of, respecting Voters' Lists, 3, 23, 25, 28, 30, 12 1 ; complaints, 45, 48, 49, 58 ; MaiuhimiiH to, 4 ; vacancy in office of, 2H, 47 ; Ito be clerk of Voters' List Court, 4H, 62, 70, 85 ; neglect to perfDvm duties, 3, 24, 31, 58, (;2, 80 ; penalties for, 3, 24, 80, 88, 89, 90; subject to summary jurisdic- tion of County Judge, 02, (13, 70, 80, 8(5 ; to allow inspection of documents, 110; to furnish co))ies of list, 04, 97, 121; fees of , 71, 97, 123 ; disqualified as a ]\lunicipal voter, 12. CLERK OF THE PEACJ::, delivery of lists to, determines proper list, ()3 ; complaint against Municipal clerk by, 86 ; penalty on, 90 ; to furnish copies of list, 97. COMPLAINANT, who may be, 32, 77; death of, 75; may be examined, 54. COMPLAINTS against Voters' List, 33, 34, 38, 41, 46, 49, 127, 129, 218, 219, 222, 224, 226, 227, 231, 235 ; when to be made, 29, 31, 41-46 ; how served, 45, 48. COMPUTATION OF TIME, 22, 23, 42, 45, 59. CONTEMPT OF COURT, 52, 57. COMMON LAW, right to vote by the, 7, 141. CONSTABLE, appointment of, 68, 70 ; fees of, 69, 125. CORPORATION, members of a, not qualified to vote, 160. CORRECTION OF LISTS without appeal, 127-130. CORRUPT PRACTICES, a disqualification for Municipal Elec- tions, 12 ; for Legislative Elections, 38, 103, 107 ; notice to be given of the charge, 38, 50. COSTS, 80, 81, 88 ; execution for, 83. COUNTY COURT may issue subpojna, 52; and execution for costs, 83. COUNTY JUDGE, powers of, 35, 37, 40, 48, 49, 50, 51, 52, 61, 65, 68, 70, 71, 73, 77, 79, 80, 83, 127, 129, 109 ; to correct mis- takes in lists, 127, 129, 132, 219, 222, 231; summary juris- diction of, 62, 63, 65, 67, 70, 80, 80 ; as to costs, 80, 81, 88 ; to complete revision of Voters' List in two months, 01, 110 ; to sign and certify lists, 61, 63 ; Supplementary Assessment Roll by, 35, 37, 83, 85 ; review of his proceedings, 65-08. INDEX. 255 COURT.— ,SVr Revision of Votkus' Lists. COURT OF RECORD, powers of, 52. CRIi^DITOR, hoklint,' a couveyancc in trust, cannot vote, 145, 146. CRIME, a disqualincation, l'.)8, 209. DEATH, of complainant, 7") ; of voter, 81, H8. DESCRIPTION of qualification should appear, 10. DISQUALIFICATIONS, 10, 12, 38, 103, 107, 185, 180, 197-19'.). DOWERESS, husband of, may vote, ir>0, 1.51. DUPLICATE VOTES not allowed, 11, l'J9. DWELLING HOUSE, what, IHI ; structural severance in, 172, 181 EMPLOYMENT AT ELECTIONS disqualifies, 186-188. EQUITABLE INSTATE j^ives vote, loo, ICO, 200; not equitable rif^ht, 155. EVIDENCE, prima facie, whsLt, 15, 30, 37. EXPUNGE NAMES, only on notice, 32, 38, .50, 58, 129, 222. "FARMERS' SONS," their right to vote at Municipal elections, 8, 10, 33, 35, 104. 112, 229, 231. FATHER AND SON, agreements between, 150, 107, 200, 231. "FINAL OR FIRST REVISION" of Assessment Roll, meaning of, 4 ; proceedings respecting, 5. FINALITY OF VOTERS' LISTS on the right to vote, 2, 101, 100. FLATS in buildings, what are, 172. FORMS, schedule of, 99, 133, 134, 237 ; deviations from, not to invalidate, 99. "FORTHWITH," meaning of, 30, GO. FRANCHISE, is a Common Law right, 7, 141 ; construction of statutes regulating, 74, 129 ; modern political logislation respecting, 7 ; history of, 7 ; table of, 8. FRAUD in assessment, 72, 78, 95, 90, 122, 224 ; in Voters' List, 90. FREE AND COMMON SOCCAGE, what is, 144. "FULL AGE," what is, 0. GOOD FRIDAY, service of notices on, 44. HEAD OF MUNICIPALITY, service of complaints on, 45, 48, 51 HEARING OF COMPLAINTS, 50, 01, 127, 129. HOUSEHOLDER FRANCHISE, 8, 12, .33, 34, 182. HUSBAND, when entitled to voti- in respect of his wife's proj)erty, 147, 162 108 ; when not, 148, 152, 163, 169 ; may qualify on wife's property for municipal office, 152. IMAGE EVALUATION TEST TARGET (MT-3) // 4^0 1.0 '" lis IIIM " lii III 2.2 ■ m — I.I — II '-8 1.25 1.4 1.6 V] 256 INDEX. IDIOTS, incapacitated from votinR, 197. •'IMMEDIATELY," meaning of, 30. IMPRISONMENT OF VOTER, how far a disqualification, 176, 198, 203, 209. INCOME, definition of, 209. INCOME VOTER, qualification of, 8, 12, 18, 209, 210, 218; appeals respecting, 33, a."), 40, 218, 235. INDIANS, when qualified, 13, 211-216 ; contracts with, 169 ; enfran- chised, 215. INFANTS cr- \:\ vote, 0, 34, 192, 197. INHABITANT', who is an, 176, 182. INSPECTION of crimolaints, applications and other papers, 114 ; brJorc^jibU ' y mai'lamus, 115. INTLRPt'iK7 A' ^ of terms, 99, 102, 142. IRREGULAR PXtO FEEDINGS, 49, 70, 224 ; when amendable, 48, 222. i s JOINT OWNERS, 100, 204. JOINT TENANTS, 172, 183, 204, 206. JUDGE. — .Vc'c County Judge. JUDGES disqualified from voting, 10, 185. JUDICIAL DISCRETION, what is, 79, 82. J.URORS' NAMES to be noted on the Voters' List, 131, 136. LACHES, effect of, 44. LANDHOLDERS' SONS FRANCHISE, 8, 13, 33, 35, 113, 175-180, 212, 231 ; who included in, IH, 104, 175, 180 xix. ; residence of, 20; appeal respecting, 33, 35, 41, 55, 135, 231. LANDLORD AND LODGER, 172, 181, 183, 202, 206. LANDLORD AND TENANT, appeal affecting, 221. LEGAL INCAPACITY to vote, 6, 34, 109, 192, 197. LEGISLATIVE lOLECTIONS, qualifications of voters for , 8, 12, 33, 192 ; lists of voters for, 9. LICENCE OF OCCUPATION. 160. LIFE ESTATE, a freehold, 153, 155. LODGER, letting to, 172, 183. LUNATICS, when disqualified, ^97 ; when not, 198. MANDAMVS. Writ of, lies to inferior tribunals, 66 ; public duties en- forceable by, 4, 48, 64, 66, 115, 126. MANHOOD SUFFRAGE, a common law right, 7, 141. ion, 176, i appeals ; enfran- lers, 114 ; dable, 48, 175-180, deuce of, 8, 12, 33, luties en- INDEX. 257 MARllIAGE, Husband's estate in wife's property on, 146, 148, 152. See also, Wifb. MARRIED WOMEN'S PROPERTY ACTS, 146, 168, 150, 163; a.^srsthe husband's estat" by common law, 150, 153, 163 ; hus- band may be excluded from wife's property under, 149, 152 ; canons in Franchise law under, 153. MILITARY SERVICE, its effect on actual residence, 208. MILITIA SERVICE, its effect on actual residence, 208. MINISTER OF A CONGREGATION, when qualified, 83, 155, 159. MINORS, when they may be entered at final revision of lists, 40. MISFEASANCE, punishment for, 1, 24, 80, 87, 89, 90, 94, 122. MISNOMER, complaints respecting, 34, 127 ; will not invalidate, 34. MISTAKES, not to disqualify, 18, 24, 127, 129 ; of Printer, 25 ; of RevisinR Judge, (52 ; power to correct, 127, 129, 173, 219. MORTGAGEE in (Kissession may vote, 145. MORTGAGOR, in or out of possession, may vote, 145. MUNICIPAL ELECTIONS, qualifications of voters at, 8, 10, 11, 33 ; lists of voters for, 10, 11; distjualitications for, 12. MUNICIPAL OFFICE, wife's property may qualify for, 152. MUNICIPALITY, to provide a Court-room, 64 ; liability of, 80. NATURALIZATION, laws affecting, 195-1^7. NEGLIGENCE OF CLERK, effect of, 3, 24, 31, 58, 02, 80. NOTICE on Voters' List, 28, 238 ; effect of, 29, 59. NOTICE of objections, service of, 45. NOTICE, person affected to have, 38, 48, 50, 54, 58, 80, 83, 221, 222. NOTICE of hearing of appeal, 48, 49. 51. OBJECTIONS, to Voters' List, 29, 31, 33, 34, 41, 46, 49, 127, 129, 218, 222, 226, 227, 231, 235 ; inspection of, 114; service of, 46. OBJECTOR, withdrawal of, 75; death of, 75 ; may be examined, 54. See Complainant. '• OCCASIONALIT^ ," what constitutes, 71, 92. OCCUPANT, definition of. 160-170, 226 ; in right of wife, 162 ; objections respecting. 33, 226. " OCCUPANTS' SONS," not included in the franchise, 18, 176, 212. OCCUPATION, actual, what is, 164, 166 ; break in, 176, 201, 207, 209. OFFICES, or Chambers, 159, 173, 181. OFFICERS, certain, disqualified for legislative elections, 10, 34, 38, 109 ; may vote at Municipal Elections, 10. OFFICERS occupying premises, right to vote, 169, 181, 202. 17 1;' I i ' 1: 258 INDEX. OFFICERS, PUBLIC, to post up lists in offices, 27, 29. OWNER, defluitonof, 143; joint occupation with, 150, 167, 173, 181, 206 ; appeal by, 33, 39, 218, 222. PARLIAMENT, common law of, 7, 142, 150, 189. PARTNERS, when qualified, 100, 206, 207. PENALTIES for neglect of duty, 1, 24, 80, 87, 89, 90, 94, 122. PERSONS entitled to Voters' Lists, 27, 60. PLACE OF ABODE to be stated in list, 19, 20, 134 , may be cor- rected, 128. POLITICAL INTELLIGENCE, measure of, 7, 142, 179. POLLING SUB-DIVISION.— .SVc Voteur' List. POSSESSION, actual, 1C4-1C6, 176; break in, 176, 201, 207. 209. POST OFFICE, services of notices by, 26, 56; mistakes by, 26, 56, 57, 132. POST OFFICE LETTER, property in, 20. POSTING UP Voters' Lists, 25, 29 ; effect of, 25, 30, 60. POSTMASTERS, when disqualified, 185. PRODUCTION of papers and documents by witness, 63. PROHIBITION, writ of, lies to County Judge, 67. PROPRIETOR, in his own right, 144, 202 ; in right of his wife, 146, 152. PUBLICATION in a newspaper of por/.Ing lists. 25, 30 ; of holding Court, 50. QUALIFICATION OF VOTER, rule for determining, 234. REAL PROPERTY FRANCHISE, for Municipal elections. 8, 10 ; for Legislative elections, 8, 12. REASONABLE TIME, 30, 45, 53. REFUSAL to register voter, actionable, 1, 87, 89, 90. REGISTRATION, system of, 1, 2 ; essential to right to vote, 1, 6, 9,31. RENT, what is, 173 ; payable in money's worth, 174, 175 ; improve- ments as, 174 ; receipt of, without title, gives no vote, 158, 174. RESIDENCE, prima facie, 15 ; actual, what, 164, 176, 200, 207 ; break in, 1"6, 207 ; constructive, what is, 208 ; compulsory absence from, 207 ; for Municipal elections, 8, 20 ; for Legislative elec- tions, 8, 19, 20, 108, 164, 176, 199, 200, 207 ; two residences, 15, 178, 207. See Sleeping Apabtment. RESIDENT INHABITANT, meaning of, 176, 182, 201, 207. RETURNING OFFICER disqualified, 109, 186. INDi:X . 259 73, 181, L22. ■ be cor- )7, 209. r, 26, 56, vife, 146, holding 18. 8, 10 ; ote, 1, 5, imprdve- 158, m. )7 ; break absence tive elec- ances, 15, REVERSIONER, \vhen he may vote, 154, 170. REVISION, COURT of, 5, 3, 152. SERVANT, occupation of premises by, 202. SERVICE OF NOTICES, 26, 45; of subpoena, 53, 66. SEVERAL PROPERTIES added toRether for qualification, 20, 202. SHAREHOLDERS in companies, not qualified, 160. SIGNATURE of claimant or objector, 46. SLEEPING APARTMENT infers reaidencs, 16, 176, 178, 207, 209, 229. " SON," definition of, 180. SOVEREIGNTY of people, their right of Eullrage, 141. SPECIFIC PERFORMANCE, ri^ht to, gives vote, 166. SQUATTER on Crown Lands, his right to vote, 161 ; not qualified for Municipal office, 162. STATUTES, general, construction of, 4, 45, 61, 136, 163 ; ambiguities VI, 4, 13, 19, (»3, 106, 109, 114, 136; when imperative, 30; 118, when directory, 28, 63, 85, 86, 110. "TUDENTS, absence from residence as, 208, 214. SUBPOENA, how ibsued, 52, 58; service of, 63, 56, 50; contempt of, 62, 57. SUB-TENANTS, 170, 173. SUMMONS.— ,SVe Suup.kna. SUNDAY, service of notices on, 43. SUPPLEMENTARY ASSESSMENT ROLL, 35, 37, 83, 86. TABLE OF QUALIFICATIONS for Legislative and Municipal Electors, 8. TAXATION, an element of qualification for franchise, 83, 201, 210. TECHNICAL RULES not binding, 48, 74, 129. TENANT, definition and qualification of, 170-174, 179, 202 ; objecticna resi^ecting, 33, 39, 83, 221, 227; lodger as, 172, 181, 183. TENANT-AT-WILL, 170, 202 ; when qualified, 203, 206; when not, 155, 162, 203. 260 INDEX. TENANT-BY-THE-GURTESY, may vote, 147, 150, 153. TENANT-IN-COMMON, 206. TIME, computation of, 22, 23, 42, 45, 59. TRANBFERREE OF PROPERTY, personal right to apply, 39, 218, 222, 227. TRANSFERROR OF PROPERTY, right to apply, 39, 218, 222, 227. TRUSTEE not entitled to vote, 145, 155, 159. USE^ AND OCCUPATION, beneficial, 143, 145, 148, 152, 163. VALUE. — See Assessment Roll. VENDOR AND VENDEE, rights of, as to voting, 155. VOLUNTEERS in militia, absence from residence on service, 208. VOTER, definition of, 32, 104 ; complaints respecting, 33, 39, 127, 129, 218,227; to be registered in one polling division, 13-15; dupli- cates votes as, not allowed, 14, 199 ; rule for determining right of, 234. VOTERS' LISTS ; foundation of the right to vote, 1, 9, 31, 41, 60, 63, 224 ; posting of, 25, 27, 29, 60 ; copies * o be sent to various persons, 27, 60 ; notice on, 28, 238 ; bind' j on Election Court, 32, 37, 41, 61, 106; price of copies of, 97. VOTES, illegal multiplying of, 71, 72, 91. WAGE-EARNER FRANCHISE, 8, 12, 33, 37, 180, 211; appeal respecting, 37, 41, 55, 135, 218, 2.35. WARD OF MUNICIPALITY, ambiguity respecting, 13, 15, 19. WIFE, when her husband may vote in respect of her property, 146, 162 ; her right to possession of her property, 149, 152, 169 ; her M separate estate" not a qualification, 148, 153, 163, 169; except for Municipal office, 152. See Mabried Women's PnoPEBTt Acts. WIIiFUL REFUSAL to register voter ; reasonable notice imputes. WITNESSES, subpoena or order for, 51; compelling attendance of, 51-68 ;Bcale of fees for, 54, 82. WOMEN have now no common law right to vote, 11, 109, 188-192 ; their former right, 164, 189; marriage a disqualification, 191; offices held by, 189; a woman is not a "person" within the Election Act, 188 ; may vote at municipal elections, 11, 139. O 3. apply, 39, }9, 218, 222, 2, 163. service, 208. \, 39, 127, 129, 13-15 ; dupli- ining right of, , 9, 31, 41, 60, mt to various ection Court, 211; appeal 13, 15. 19. property, 146, 152, 169 ; her 3, 169 ; except m's Pbopkbty ttice imputes, .ttendance of, 109, 188-192; ification, 191 ; i" within the as, 11, 139.