0^ m^ L \%^} Cornell University Law Library The Moak Collection ^ PURCHASED POR The School of Law of Cornell University And Presented February 14, 1893 IN riEHORY OP JUDQE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS / Cornell University Library KE0 838.A47H681883 OlortiHl Earn i>rl|aal ffitbratg Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924016973251 REPORTS OF THE DECISIONS OF THE JUDGES fOK THE TRIAL OP ELECTION PETITIONS IN ONTARIO, BBLATINO TO ELECTIONS TO THE LEGISLATIVE ASSEMBLY OF ONTARIO, ' 1871-5-9 ; AND TO THE HOUSE OF COMMONS OF CANADA, 1874-8. THOMAS HODGINS, Q.C. TORONTO.: CARSWELL & COMPANY, gafo f wWisI;fra. 1883. TABLE OF CASES. PAGE. Beockville (Prov.) 129, 139 Cardwell (Prov.) 269 Cabdwell (Dom.) 644 Caeleton (Prov.) - 6 Cornwall (Prov.) - 203 Cornwall (1) (Dom.) 547 Cornwall (2) (Dom.) - 647 Cornwall (3) (Dom.) - 803 DuPFERiN (Prov.) 529, 530 DuNDAS (Prov.) 205 East Elgin (Dom.) 769 East Hastings (Dom.) 764 East Northumberland (Prov.) 387 East Northumberland (Dom.) 577 East Peterboro (Prov.) 245 East Toronto (Prov.)- - 70 Glengaeey (Prov.) - 8 Halton (Prov.) 283 Halton (Dom.) - 736 Kingston (Dom.) 625 Lincoln (1) (Prov.) 391 Lincoln (2) (Prov.) 489, 500 London (Prov.) - 214 London (Dom.) - 560 MoNCK (Prov.) 154 MoNCK (Dom.) 725 MusKOKA (Prov.) 458 Niagara (Dom.) 568 North Grey (Prov.) 362 North Middlesex (Prov.) 376 North Ontario (Prov.) 304 North Ontario (Dom.) 785 North Renfrew (Dom.) - 710 North Simcoe (Prov.) 50 North Simcoe (Dom.) 617, 624 North Victoria (Prov.) 252 PAGE, North Victoria (1) (Dom.) 584, 612 North VicT0RiA(2)(Dom.) 671 NOETHWBNTWORTH(ProV.) 3431 North York (Prov.) 62 North York (Dom.) 749 Peel (Prov.) - , 485 Prescott (Prov.) 1 Pebscott (Dom.) 780 Prince Edward (1) (Prov.) 46 Prince Edward (2) (Prov.) 160 Russell (1) (Prov.) - 199 Russell (2) (Prov.) 519 South Essex (Prov.) 235 South Grenville (Prov.) 162 South Grey (Prov.) 52 South Huron (Dom.) - 576 South Norfolk (Dom.) 660 South Ontario (Prov.) 420 South Ontario (Dom.) 751 South OxFORD(Prov.) 238, 243 South Renfrew (l)(I)om.) 556 South Renfrew (2)(Dom.) 705' SouthWentwoeth (Prov.) 531 Stoemont (1) (Prov.) 21 Stormont (2) (Prov.) 53T Welland (1) (Prov.) 47 Welland (2) (Prov.) 18T West Elgin (Prov.) 223, 227 West Hastings (1) (Prov.) 211 West Hastings (2) (Prov.) 53& West Noethumbeeland (Dom.) 562 West Peterboro (Prov,) 274 West Toronto (1) (Prov.) 97 West Toronto (2) (Prov.) 179 WbstWellington (Prov.) 231 West York (Prov.) 156 TABLE OF STATUTES AND CASES THEREUNDER. PAQE. Brookville 129, 139 Carleton 6 East Toronto 70 Glengarry 8 Monck 164 I. Provincial Elections, 1871. 32 Vic, c. 21, 0.- Election Law. 1868 (R.S.O.. o. 10, in part), 34 he, c. 3, 0.- Controverted Eleo.Act. 1871 (R.S.O., c. 11, in part) PAOB. North Simeoe 50 North York 62 Prescott 1 Prince Edward (1) 45 (2) 160 South Grenville 162 II. Provincial Elections, 1875. 32 Vic, c. 21, O., and 34 Vic, o. 3, 0. (See above). 36 Vic, c. 1, 0.— Election Act, 1873 (R.S.O., o. 10 and 11, m part) 37 Vic, c 5, 0.— Ballot Act, 1874 (R.S.O., c. 10, in part.) 38 Vic, c 3, 0.— Elections and Election Trials, 1874 (RS.O., c. and 11, in part). PAGE. Muskoka 458 North Grey 362 North Middlesex 376 North Ontario 304 North Victoria 252 North Wentworth 343 Peel 485 Russell U) 199 South Essex 235 10, O., 1876-6. III. Provincial Elections, 1879. R.S.O., c 10.— Election Act of Ontario, 1877. R.S.O., c. 11.— Controvertel Elections Act of Ontario, 1877. 41 Vic, c 21.— Voters' Lists Finality Act, 1878. 42 Vic, M. 4. — Respecting Elections of Members, 1879. TABS. Cardwell 269 Cornwall 203 Dundaa 205 East Northumherland . .387 East Peterboro 245 Halton 283 Lincoln a) 391 " (2)» 489,500 London 214 •Also 39 Vic. PAOB. South Grey 62 Stormont(l) 21 Welland(l) 47 West Toronto ;i) 97 West York 156 10 PAOK. South Ontario 420 South Oxford 238, 243 Welland(2) 187 West Elgin 223, 227 West Hastings (1) 211 West Peterboro 274 West Toronto (2) 179 West WelUugton 231 PAGE. Dufferin 529, 530 Russell(2) 619 PAGE. South Wentworth 631 Stoi-mont (2) 637 West Hastinjjfs (2) . I. Dominion Elections, 1874. 36 Vic, c 27, Can. -J Temporary Provisions for Elections, 1873. 36 Vic, c 28, C^n.— Controverted Elections Act, 1873. PAGE. Cardwell 644 Centre Wellington 679 (Cornwall (1) 547 East Northumberland . , 577 37 Vic, 0. 9, Can.— PAGE. Kingston . . 625 London 660 NiE^ara 668 North Simeoe 617, 624 PAGE. North Victoria (1)..584, 612 South Huron 676 South Renfrew (1) 656 West Northumberland.. 662 Dominion Elections Act, 1874. PAGE. Cornwall (2) 647 Halton 736 PAGE. South Norfolk 660 South Renfrew (2) 705 37 Vic, c 10, Can. — Dominion Controverted Elections Act, 1874. PAGE. Monck 725 North Renfrew 710 North Victoria (2) 671 II. Dominion Elections, 1878. 37 Vic, «. 9, Can., and 37 Vic, c in, Can. (See above). 38 Vic, u. 10, Can. — Rpspecting Controverted Elections, 1875. 39 Vic, u. 10, Can — Effectual Inquiry int') Corrupt I'ractioea, 1876. 41 Vic, u. 6, Can. — Amending Dominion Elections Act of 1874, 1878. PAGE. Cornwall (3) 803 East Elgin 769 PAGE. East Hastings 7t>4 North Ontario 785 North York 749 PAGE. Prescott 780 South Ontario^. 751 REPORTS ELECTION CASES, PROVINCIAL ELECTIONS, 1S71. PEEfSCOTT. Befoee Chief Justice Kichards. L'Oeignal, 20th to 23rd June, 1871. James Stewart McKenzie et al, Fetitioners, v. George Wellesley Hamilton, Respondent. Sespondent's right to impeach Petitioner's qualification — Alienage — Voter in respect ofioife's estate. — Notarial copy of Assignment in Insolvency, O.S.O., c. 80, s. 2. — Extensive Bribery by Agents— Calling upon parties guilty of Corrupt Practices to appear. The respondent attacked the qualification of one of the petitioners on the grounds that he was an alien, and that he had no property qualifi- cation, having made an assignment in insolvency before the election. The learned Judge admitted the evidence, but Held, (I) That the evidence as to petitioner having lived in the United States without showing that his parents were American citizens, was not sufiScient to establish the charge of alienage. (2) That the Election Act of 1868, by the term "owner," gives to a husband whose wife has an estate for life or a greater estate, the right to vote in respect-of his wife's property ; and that the petitioner having that qualification, and being in possession of his wife's estate, was held entitled to petition. ' Held, fiirther, that a notarial copy of an assignment in insolvency may . be received as evidence of such assignment under C.S.C., c. 80, s. 2. • The petitioners having given evidence of corrupt practices. Held, (1) That the election was void for bribery by agents. (2) That corrupt practices extensively prevailed at this election. Qucere — Whether the Judge presiding at the trial should not direct notice to be given to the parties who, from the evidence, were apparently guilty of corrupt practices, so that the Judge might decide upon their liability to disqualification, and report them under the statute. The petition contained the usual allegations of bribery^ etc., and that illegal votes had been received, and claimed the seat for the defeated candidate, Mr. James Boyd. The majority for the respondent was 134. 1 2 PRaVINCIAL ELECTIONS. [A.D. Mr. Bethune and Mr. J. K. Kerr, for petitioners. Mr. J. Hillyard Cameron, Q.C., for respondent. Counsel for the respondent proposed to call witnesses to prove that the petitioners had no right to vote. Coun- sel for the petitioners contended, 1st, That the objection was a preliminary one, and should hav6 been taken before a Judge, or the Court, and could not be taken now : and 2nd, That the petitioners had obtained an order for par- ticulars against the respondent, and the objection had been waived. Yoioghall case (21 L. T. N. S., 306, 308). (a) The Chief Justice said he would not preclude the party from raising this objection now, but would reserve it if necessary. Evidence was then given to show that the petitioner, J. H. Cleveland, had stated that he " had lived at Fort Covington," that he " had come from Fort Covington," in the United States. The Clerk of the Peace proved that no affidavits for the naturalization of the petitioner had been filed in his office. Counsel for the respondent then proposed to put in a notarial copy of an assignment in insolvency, made by the same petitioner on the 10th July, 1867, to John White of Montreal, official assignee. Counsel for the petitioners objected that the assign- ment is not provable by a notarial copy, and that express provision was made in the Insolvent Acts of 1864 and 1869, for proving it. The Chief Justice, under C.S.C, c. 80, s. 2, admitted _ the notarial copy of the assignment. Evidence was then given that petitioner's father, by will, dated 25th June, 1861, devised certain real estate to the petitioner and his wife. The property was assessed in petitioner's name for $600. Mr. Bethune contended that there was no evidence that the petitioner was an alien ; that as to the qualification the will gave an estate by entireties. In any event the petitioner's wife re tained one half of the estate, and the (a) See South Huron omeiD.), 29 C. P., 301 ; s. p. Dufferin oa>,e (C), 4 App. B., 420.~ 1871. J PRESCOTT. 3 husband would be entitled to vote on her qualification. As occupant, he would have a right to vote : Rogers on Elections (11th Ed.), 9, 32. Mr. Cameron contended that the effect of the will was that both parties were seized in entirety. The petitioner is not entitled to vote as occupant, for he is not an occu- pant to his own use and benefit, but merely for the benefit of his wife ; Wathins on Conveyancing, 170. Richards, C. J. — -As to the first ground of objection, I do not think the respondent has gone far enough. Tlie petitioner is said to be here, and can be called. It is not shown that the parents were American citizens, or were born before 1783, and resided in the United States since. There is nothing against the presumption that they may have been natural born subjects, and the father devises this very property. But if it becomes necessary to con- sider the question as affecting the result, I will reserve it as a point of law for the consideration of the Court, whether the evidence is such as to justify me in finding the petitioner an alien or not. As to the interest in the estate of his wife after the petitioner had assigned the interest devised to him under the will, I think the wife has the estate yet, notwith- standing the assignment by the husband. I think that the Elections Act of 1868, by the term " owner" means to give the right to vote to the husband whose wife has an estate for life, or a greater estate in the land; and that when in possession of such an estate he is proprietor in right of his wife. Here the land is assessed for $600, and the wife's one-half share will be worth $300, more than sufficient to qualify the husband. If it becomes necessary, I wiU reserve this question of qualification in right of the wife's estate, for the opinion of the Court. Evidence was then given proving bribery and treating by agents of the respondent. The evidence material to the issue was as follows : Walter Shane proved that he had received $40 from James H. Milloy and $60 from CoL Higginson, of which 4 PEOVINCIAL ELECTIONS. [A.D. he paid $2 to Daniel Harrigan for the use of his team in. taking voters to the poll on polling day; $3 to John. Franklin for a similar service; also some money to Charles Quesnel, a voter : " I gave it to him at his own place ; I just gave it to him; it was not for voting;" also to- Michael Shane $15, because he brought two voters from the shanties ; also $3 to Moses : " Moses voted for Mr. Hamilton. It was after the election I made him a present, of $3. It was not for Having voted; it was just for having gone up. I thought he had voted. I did give it to him just to pay his way. I laid out the rest of the money several ways I know about, and spent it. I did not give it to any one else. Cross-examined : " The balance I have kept ; no one ever asked me to give it back, nor have I ever asked any one to take it back. I'did vote." James H. Milloy proved that he was on the respondent's, committee, and canvassed with him ; that he received $40 from the Hon. John Hamilton to hire men in place of certain voters who were in the shanties so that such vot- ers might come to the election and vote ; that he handed the money to Walter Shane ; that he received further sums amounting to $400 or $500 from Col. Higginson, iiL the committee, and kept no record of it. " It was handed to me without "any instructions, and it was never counted. I was to use the money. No one gave me instructions, how to lay out that money. I consider the money was handed to me to, spend at the election. I gave it to parties. I gave Mr. Allan J. Grant $50". I told him he was to go and electioneer ; left it discretionary with him to use as he thought best. I gave $50 to the Kev. Mr. Phillips of the R. C. Church on the morning of the nomination ; I felt assured he would make good use of it ; it's usual to be liberal with the clergy at these times. I gave $40 or $50 to Mr. Leanch. He voted for Mr. Hamilton. I handed him the money ; I beheve I said to him that was to pay his travelling expenses, or s.omething of that kind, for election purposes. I suppose we understood each other. 1871. J PRESCOTT. 5 1 gave Mr. Linden money. He is a voter who voted for Mr. Hamilton. I gave him $15 ; did not tell him what it was for. It was after he voted he asked me for money ; he said he had been at some expense. I knew he had, and gave him the money. I gave Mr. Peter Gallagher at a meeting of our committee $100. He did not ask me for the money; I, supposed he would promote the election with it. Mr. Gallagher voted for Mr. Hamilton, I believe. Mr. Bradley got some, say $25. He said there were' only $15 ; I thought $25. Mr. Higginson handed it to me to hand to him, no doubt to promote the election. Terence O'Boyle got, I think, $25 ; I handed it to him; Col. Higgin- son handed it to me. I think all the parties understood what they were to do with it. I believe Mr. Patrick Mc- Donald got $20 or $25 of the same, and small sums of be- tween $15 and $20 paid out to other parties. I spent the rest in treating and in paying travelling expenses. I treated at Caledonia Springs' meeting with part of the election expenses." After an adjournment, Counsel for the respondent stated that, after the evidence given yesterday, he considered a sufficient case had been made to avoid the election. The respondent in his examination prior to the adjournment denied that any money in relation to the election was •expended with his knowledge and consent. Counsel for the petitioners stated they did not wish to examine the respondent further. The end which they wished to attain was the setting aside of the election, and they had no wish to proceedwith the matter further. Richards, C. J. — I determine the election was void. I -determine that no corrupt practices have been proved to have been committed by or with the knowledge and con- sent of either of the candidates at such election. I shall ■certify that there is reason to believe that corrupt prac- . tices have extensively prevailed at the election to which the petition relates. 6 PROVINCIAL ELECTIONS. [A.D. I have some doubt whether I ought not to direct that notice be given to the parties under the statute, who are apparently, from the evidence, guilty of corrupt practices, that they may have an opportunity of being heard, so that I may decide and report to the Speaker on that sub- ject under subs. h. of section 17 of the Controverted Elec- tions Act of 1871. The Act itself having been passed so recently before the elections, the practice under the Act being new, the Judges' being much pressed for 'time in carrying out the Act, the delay which must ensue if these proceedings are adjourned to give the proper notice to the parties who were apparently the most active in the corrupt acts, the inconvenience to all parties concerned' and the fact that the parties who are guilty may still be prosecuted for penalties, induce me to consent to the mat- ter not being proceeded with further, for the purpose of making the parties liable to the penalties under the statute of 1871. Petitioners are entitled to their costs, having reference to the cases of voters in which they failed to malce out a case, (a.) (5 Journal Legis. Assern., 1871-2, p. 5). CAELETON. Before Mr. Vice-Chancellor Mowat. Ottawa, 16th and 17th June, 1871. KoBERT Lyon, Petitio-mr, v. George W. Monk, BespondenL Bribery by an Agent — Admission of Counsel. The admission of Counsel in open Court, — that the giving of $2 to a voter by an agent of the respondent, after such voter had voted, such voter admitting that he did not know why the $2 was given to him, was bribery, — acted upon, and the election avoided. The petition contained the usual allegations of bribery, &c., and claimed the seat for the petitioner on a scrutiny. The votes at the election were: For respondent, 822; for petitioner, 812. Majority for the respondent, 10. (a) See as to the taxation of costs in tliis case, 82 Q. B., 303. 1871.J CAELETON. 7 Mr. J. Hillyard Cameron, Q.C, for respondent. Mr: R. A. Harrison, Q.C, for petitioner. Particulars of charges of personal bribery against the petitioner were filed ; but after the examination of one witness, they were abandoned. The evidence affecting the election was as follows : — Alexander KincTi : I know Crawford Corbett ; he lives near me, two miles from me. I am a farmer ; have a rented farm. Crawford Corbett gave me $2 after I had voted ; I dont know why he gave me the $2 ; I did not ask him ; he owed me nothing. The Counsel for the respondent admitted this vote to be bad. Five other votes for respondent were admitted to be bad. Mr. Harrison, for petitioner, then abandoned the scru- tiny and the claim to the seat. Mr. Cameron, for respondent, consented, and that the election should be declared void. He further admitted that the voter Kinch, whose name was struck off for bribery, was bribed by the agent of the sitting member, and without his knowledge or consent. The Vice-Chancellor on the foregoing evidence and on the admission of Counsel, then declared the election void; and made the following special report : "That the votes of John Craig, and Alexander Kinch, who voted at the said election, were struck off by me, on the scrutiny on the trial, on the ground of bribery ; the evidence in each case being that of the voter himself given at the trial. " That the persons who paid the money to the said voters were not produced as witnesses at the said trial ; and there was no proof before me' that they had the oppor- tunity of being heard as required by the 49th section of the Act." No costs to either party. (5 Journal Legis. Assent., 1871-2, p: 6.) PROVINCIAL ELECTIONS. [A.B. GLENGAKRY. Before Chief Justice Hagarty. Cornwall, SSnd and $3rd June, 1871. Roderick McLennan et al, Petitioners, v. James Craig, Respondent. Treatinri at Meetinr/s of Electors— Illegal and Prohibited Acts— Bribery — Gift— Excessive payments— 32 Vict., cap. 21, sees. 61,66 and 67— Costs. The respondent who was then representing the county in the Legislature, on two several occasions at the close of public meetings of electors called by him to explain his conduct as such member, treated all present to liquor at taverns. He had not at the time made up his mind to be a candidate at the then coming election, but told the electors that " if they gave him their support he would expect it." Held, under the circumstances, that such treating was not. done with a corrupt intent. QvAsre — Whether Euch treating was in any case a corrupt practice, under sec, 61, of 32 Vict., cap. 21, or other than an illegal act which sub- jected the party to a penalty of ^100 under sec. 65 — the statute point- edly omitting all mention of treating. Where a, charge of a corrupt intent in treating is made, the evidence must satisfy the Judge, beyond reasonable doubt, that the treating was intended directly to influence the election, and to produce an effect upon the electors, and was so done with a corrupt intent. The respondent after announcing himself as a candidate, gave $10 in two 15 bills to a child of a voter, then three or four years old, which had been named after him. He had two years previously intimated that he would make the child a present. Held, that the gift, under such circumstances, was not bribery. The respondent while canvassing had refreshment for his man and two horses at a tavern for part of a day and a night, for which he paid the tavern-keeper S.5, and next day |5 more, in all $10, without asking for a bill . The bill would have amounted to about |3. The respondent stated that the tavern-keeper was an old friend of his, and was just starting in business, and that he thought it right to pay him as it were a compliment on his first visit to his tavern, and that he believed he would have done the same thing if it was not election time. Held, that being an isolated case in an election contest, free from profuse expenditure, and this being a quasi-criminal trial, involving grievous results to the respondent if found a corrupt practice, such payment was not — after the explanations of the respondent — an act of bribery. The petition was dismissed, but owing to the unwise and imprudent acts of the respondent, he was allowed only one half of the taxable costs. The petition contained the usual allegations as to cor- rupt practices, etc.; but did not claim the seat. The can- didates at the election were James Craig, the respondent, who was elected, and James Maclennan. 1871.] GLENGAERY. ,9 Mr. Maclennan, Mr. Bethune, and Mr. Wilson, for petitioners. Mr. J. Hilly ard Cameron, Q.C., and Mr. D. B. McLennan for respondent. The petitioners relied upon the cases referred to in the "following evidence : Jarms Craig, respondent : I was a candidate at the last ■election; and was successful. I was rather unwilling to stand. The meetings held were to offer explanations of my conduct. The first meeting was at Somerstown. At that time I did not know the election was coming on. I had not made up my mind to be a candidate. Made up my mind at Alexandria to become a candidate At Somers- town I was the only one that spoke. The meeting was in a building or ball-room in connection with the hotel. I told the people that if they gave me their support I would expect it, and if not they might do otherwise. After I spoke I told the people to go into Somer's bar and have something to drink ; this was to be at my expense. There were from 50 to 100 there ; I can't be sure. Some went in, so did I ; I partook of the refreshment at the bar with them. My invitation was general ; perhaps 20 or 30 went in to drink. T only paid for one treat ; I paid $5 in all to the proprietor. I left, leaving several there. At Williamstown the meetings were in a public hall. I spoke ; no one else after I spoke. I said, as they all had been out late, and as they had behaved well, to go to their respective hotels and have some refreshment, and I Would call round in the morning. All that was understood was to have a glass of liquor as at Somerstown. Three hotels were there, kept by Thomas, Angus, and John Macdonald, respectively. I think, not sure, these three men were my supporters. Some of them went to the hotels ; I went to all three ; they got liquor there ; I talked with some in the bars ; I paid for this. I paid from $3 to $4 to each of the three hotels for this ; I paid it next day ; paid none since then. I paid them what they said was the cost ; the whole did not exceed $12. At the close of the Alexandria 10 PROVINCIAL ELECTIONS. [A.D. meeting I gave them a like invitation. The meeting was in a hall, part of McPhee's hotel. The Attorney-General happened to be there, and he told me it was contrary to law ; and then I said, if so, I would not treat, and I did not. He said it might cost me my election. I gave John Tobin $10 two or three weeks before the election. I stopped part of two days, and left my man and horses. It was a very dirty time. I gave him $5, saying I was sorry I had dirtied his house. Next day I gave him $5 more. He asked me should he treat the people there ; I told him no, to make them pay for their drinks. I did not eat or sleep there ; I slept with a nephew. My man must have taken two or three meals, and stayed a night. I had two horses ; they were there part of a day and a night, and got three or four meals. I understood I was paying for self, man and two horses. I did not ask what his bill was. I said, I have dirtied up your house, and I would come this way often. Twenty-five cents a meal is a common charge ; fifty cents for a feed of oats, two gallons each for a pair of horses ; not so much if staying over night. Twenty -five cents for a bed is usual. Nothing was said about elections. I was at Tobin's after the meeting at Alexandria. I went up there to attend a meeting ; a missionary meeting ; an elder was with me ; it was an independent meeting ; it was a regularly ap- pointed Presbyterian meeting. I was written to go as a representative elder. I never asked Tobin to vote for me j I believe he did poll for me. He was a very old friend of mine ; we were raised as boys together, and I had never been in his house before. I believe I would have given it to him if there were no election ; he was a young man beginning business. I was at Alexander Grant's (Junior) house after the Alexandria meeting; I went there to see a son of his who was called after me ; I saw the child ; it seemed three or four years old. Grant was not at home ;, I did not ask for him. The child could talk a little. I gave the child $10 ; I did it as an acknowledgment. I heard of his being my name-child about two years before. 1871.J GLENGAERY. 11 I had not been in that part of the country but oiice before ; I live twenty miles off. I had said when I first heard the child was called after me, that I would make him a pre- sent as an acknowledgment. I gave the money to the child ; the mother said they did not want money. I said it was not for her, it was for the- child. The child took the money ; I gave him two $5 bills. The mother knew me, and shook hands.> I said I understand you have a little boy here of mine ; she said there is one called after you. I was not there over ten minutes. Intended to do this long before. I knew Grant four years ago ; he was a strong supporter of mine at elections. I don't think I had met him since the preceding election. Our first acquaintance was at that election. I spoke to J. Mc- Kenzie that I was going to give this ; this was ten days or a fortnight before I went to Grant's. I had never called at the Grant's before this. I made no similar present before out of my own connections. I have no name-child. I have given presents to those called after me of my relations. Mr. Bethune contended that the election was void, on three grounds — 1st, The treating at the meetings ; 2nd, The gift to Grant's child ; 3rd, The payment of $10 to Tobin. As to the first point, in England the law was directed against treating of individuals with a view of changing their votes, which was a species of bribery, and this accounted for the use of the words " corrupt treating " in the English Act. Our Act was directed at the practice of giving entertainments at taverns to meetings of electors, with the view of promoting the election. Next, as to the intention of the candidate in treating. As was said in an English case, the treating may not have been done with the view of gaining the vote of A or B, but it was done to gain popularity, and that was sufiicient to meet the statute as to promoting his election. If in England this was the case, where a single voter was in question a for- tiori, must it be followed here when a large number of electors were im question. The meeting and the speeches were intended to gain popularity, and the treating after- J 2 PROVINCIAL ELECTIONS. , [A.D. .wards could have no other object. No subject was dis- cussed but the election, and the whole end of the meetings and treatings was the promotion of the elections. Here- ' ford case, 21 L. T. N. S., 121. There was not an English case where corruptly was construed to mean mala fide ; it only meant doing an illegal and forbidden action. Under the statute of 1871 the term " corrupt practice" was defined to include "bribery, undue influence and illegal and pro- hibited acts." [The Chief Justice said, if he had to decide the case merely on the ground that the act of treating was a cor- rupt practice because prohibited by the law, he would reserve the case for the Court on account of the conse- quences that would ensue.] The word corruptly did not occur in the 61st section. It had been left out advisedly, and the- statute must be read without it. .[The Chief Justice. There was nothing of course immoral in treating apart from the statute. Even under the Act the candidate might treat as much as he liked at his own house, and his agents at their own houses.] Bribes were always covered up in some way, and especi- ally would the candidate be anxious to conceal his conduct now that such serious consequences ensued. Bribes were always given under the color of some excuse, which, it was supposed, would account for the gifts if they were •called in question. As to the gift to the child ; the money went eventually to the benefit of the parents, for it saved them so much of its clothing or support. It was the only instance in which Mr. Craig had made such a gift, and it had been talked over just before the elections. It was a plain case of bribery with a view of influencing the vote. If this was held.to be an innocent gift, there was nothing to prevent gifts to all the children in Glengarry next election. [The Chief Justice. — It would be different if two or three cases had been proved against Mr. Craig.] As to Tobin's case, sub-sec. 6, sec. 67, of the Election Act, allowed the candidate to pay expenses, but it was 1871.J GLENGARRY. 13 carefully limited to "actual" expenses. Here, the real- ex- penses were about three dollars ; and ten dollars was given. And it had been said that the seven dollars was- not for treating, though treating privately under our statutes was legal enough, except as evidence of a cor- rupt bargain. It was given, no doubt, with a view of conciliating the publican. He was not in need of charity,, or else the fact of being an old neighbor might have divested the act of its corrupt appearance. The fact that he gave $5 at night, when only 75 cents were due, and followed it up with a second $5 next day, when little more was due, made the case worse. Suppose it had only been shown that he gave him $7, and that Tobin voted, the in- ference would have been that it was a bribe, and he submitted that the explanation given did not rebut that inference. Mr. Maclennan on the same side. — As to Tobin's case, he pointed out that if the plea of old acquaintanceship with Tobin was to prevail Mr. Craig might bribe all Glengarrgr next election, for they would all be pretty well known t& him then. The excuse was of the most flimsy character As to the payment to Grant's child, the gift was not of a. character suitable for a child, and was not given so as to provide for its amusement or benefit; the money was given in the shape of two $5 bills, and unless taken from the child would be torn up in five minutes, and not for the benefit of the child so much as for the parents. If it had been intended for the child's amusement it should have taken the shape of a toy, and if for his benefit some in- structions would have been left about it. As to the treat- ing, it was part and parcel of the meeting, and was intended to promote the election. It was given not to his personal friends but to the general body of voters at the meeting.. Hereford case, 21 L. T. N. S., 120 ; Limerick case, 1 O'M. & H., 260. Mr. Cameron denied that the term corrupt could meaiL everything illegal or prohibited by the Election Act. If so, then an election would be voided for infraction of the 2nd section (which declared who should not vote), 3rd 14 PROVINCIAL ELECTIONS. [A.D. section, 14th section (as to who are to be returning officers), 15th section (as to poll clerks), 23rd section (as to no show of hands), 27th (as to voting in more than one place), 46th (as to personation of voters), and the 59th, 60th, 61st, 62nd, 63rd, 64th, 66th, all of which prohibit something or another. If this view prevailed, the wearing a shamrock or ah orange lily, or a bright necktie, or the candidate's wife wearing a party colored scarf, or carrying a fowling-piece within two miles of a polling place, might void an election. The only illegal and prohibited acts^ included as corrupt, were those in the 67th and subse- quent sections, such as carrying voters, &c. The wider intention could not have been meant by the Legislature) and if it had they had not so expressed it. He contended, further, that the treating was not connected with the sitting member. He was not a candidate when either acts of treating was committed. In England, acts done before the person became an actual candidate affected him; here a candidate meant not only a person elected, but one who had been nominated, or who had declared his intention to be- come a candidate. The evidence of the sitting member was strongly in his own favor. The petitioners showed the de- pendence they placed in the respondent's evidence by call- ing no one to contradict him. His only object in calling those meetings was to give explanation as to his past conduct. He urged that entertainment did not mean a mere drink. In the 61st section the words entertainment and drink are contrasted, and a distinction is made. Treat- ing was not mentioned in the statutes, and the Court or Judges should not interpolate it. The respondent had said that he had no view of influencing the election when he treated, and that stood uncontradicted. [The Chief Justice said he had more difficulty about the Tobin case than about the name-child's case.] Mr. Craig's conduct had been injudicious. [The Chief Justice.—" And highly dangerous."] After a short adjournment, the following judgment was delivered : 1871.J GLENGARRY. 15 Hagarty, C. J. — At the close of the evidence the peti- tioners' counsel reduced their objections to three matters : First, the entertainment at the meetings ; second, the ten dollar gift to the child ; third, the ten dollars to Tobin. As to furnishing entertainment to the meeting of the electors, under the 61st section of the Act of 1868, 1 should have little doubt in deciding that the only consequences under that statute should have been the penalty of $100 provided by section 65. (a) The late Act,however, has raised a question as to whether this comes under the head of a corrupt practice as an illegal and prohibited act in refer- ence to elections. If. it comes under that description, it not .only voids the election, but renders the candidate liable to the grievous personal disabilities set forth in the Act, for a period of eight years. If the case before me turned upon the naked question, whether the matter pro- hibited by clause 61 was under the present law a cor- rupt practice, with all its heavy consequences, I should reserve the legal point for the consideration of the Court ; but for the purposes of this case I shall treat it as such, subject to this. modification, that I think by all fair rules of statute construction I am bound to hold that the evi- dence must satisfy me that what was done was done corruptly. When the statute says the candidate shall not do a thing with intent to promote his election, I think it must mean something beyond the literal meaning of the words. If he contemplates being a candidate, every step he takes, the issuing of hand-bills; canvassing of electors; the mere act of travelling to any given point ; of paying . for a conveyance for such purpose ; these and a hundred other things may literally be said to be with intent to promote his election. When, therefore, a charge like the- present is made, I think the evidence must satisfy the Judge, beyond reasonable doubt, that the giving of the (a) The clauses relating to Treating, here commented upon by the learned Chief Justice, were materially altered by subsequent legislation. In section 61, the words " with intent td promote his election," and " with intent to promote the election of any such candidate," .were struck out ; and the furnishing of drink or other entertainment to any meeting of electors assembled for the purpose of promoting an election, waa made a corrupt practice, by 36 Vict., c. 2, s. 2 ; now E. S. 0., c. 10, s. 151. See Went Wellington, 1876, post. 16 PROVINCIAL ELECTIONS. [A.D. entertainment was intended directly to influence the elec- tion, and to produce an effect upon the electors. If not so,, why were the words introduced ? They are quite useless; if it was intended to prohibit the mere giving of an enter- tainment to a meeting of electors, absolutely without, reference to the giver's intention and design iri the act of" giving. If the Legislature make it a' corrupt practice to give entertainment with intent to promote his election, it must in my judgment compel a decision that the intent to promote must be a corrupt intent in the legal sense of the term^ as hereinafter explained. I am dealing with the statute avowedly in its preamble aimed at corrupt prac- tices, which Act at the same time pointedly omits all mention of treating from its language. Whenever, there- fore, the act prohibited is not in its very nature neces- sarily corrupt, such as bribery, I feel an almost insuperab^.e difficulty in holding it to be a corrupt practice, involving such momentous consequences, unless it be done corruptly. In the statutable sense of that term, what is the meaning of "corrupt?" In the Bewdley case (1 O'M. and H., 19), Blackburn, J., says, " corrupt " means "with the object, and intention of doing what the Legislature plainly means to forbid." In the Hereford case (Ibid. 195), the same learned Judge says, that corrupt treating means, " with a, motive or intention, by means of it to produce an eft'ect upon the election." In the Lichfield case (Ibid. 25), Willes, J., says, treating is forbidden " wherever it is resorted to for the purpose of pampering people's appetites, and thereby inducing electors either to vote or to abstain from voting otherwise than they would have done if their palates had not been tickled by eat;ing and drinking, supplied by the candidates." Again he speaks of treating " as a means of being elected ... in order to influence voters." And so iji the Tamworth case (Ibid. 83), the same learned Judge suggests cases where treating may well be con- sidered and held corrupt, and he says it is always a ques- tion of intention — an intention to produce that effect, which the Legislature meant to forbid. See also the. 1871.] GLENGARRY. 17 Wallingford case (Ibid. ■ 57"), and the facts there held to shew corrupt intention. In the Coventry case (Ibid. 106), the same Judge says, " when eating and drinking- takes the form of enticing people, for the purpose of inducing them to change their minds and vote for the party to which they do not belong, then it becomes cor- rupt." In the Bradford case (Ibid. 37), Baron Martin defines " corruptly " thus : " I am satisfied it means a, thing done with an evil mind and intention. Unless there is an evil mind and intention accompanying the act it is not done corruptly. It means an act done by a man knowing that he is doing what is wrong, and doing it with an evil object. There must be an evil motive in it, and it must be done in order to be elected." In the case last mentioned, it was not done in order to be elected, because it was known how all the men would vote They were there because they were voters pledged to support respondent. It is therefore idle to suppose the meat and drink were given to induce them to vote. In the Staley- bridge case (Ibid. 73), Willes, J., says " that it must be done to influence the election by the giving of meat and drink. The question whether or no there is a corrupt giving of meat or drink must, like every other question of intention, depend upon what was done, and in a great measure the extent to which it was done, the manner and way : and therefore it is a question which must always be more or less a question of fact." AU these remarks are made under a statute speaking of corrupt treating in order to be elected, or for the purpose of corruptly in- fluencing persons to vote or refrain from voting. I may also refer to the very striking remarks of Willes, J., in the Bodmin case (Ibid. 124), where he says the Judge must satisfy his mind whether that which was done was really done in so unusual and suspicious a way that he ought to impute to the person who has done it a criminal intention in doino' it, or whether the circumstances are such that it may fairly be imputed to the man's sincerity, or his pro- fusion, or his desire to express his good will to those who 2 18 PEOVINCIAL ELECTIONS. [A.D. honestly help his cause without resorting to the illegal mode of attracting voters by means of an appeal to their appetites. On both the occasions when entertainment was given, the respondent, according to his uncontradicted evidence, was still undecided as to his becoming a candi- date. When the meetings broke up he offers, and does treat all persons there. The amount expended was, on the first occasion, $5 ; on the second, $12. I feel bound to say that the evidence given by the respondent seemed given with great candor, and favorably impressed me as to its truth, and I feel wholly unable to draw from it any honest belief that he provided this entertainment, consisting apparently of a glass of liquor all round, with an idea that he was thereby seeking to influence the election, or promote his election in any of the senses referred to in the cases. He was unaware of the state of the law on this subject, as he says. He is not to be excused on the ground of his ignorance ; but the fact (his ignorance) is not wholly unimportant as bearing on the common custom of the country — too common, as it unfor- tunately is — of making all friendly meetings the occasion or the excuse of a drink or treat. The strong impression on my mind, and I think it would be the impression of any honest jury, is that the treats in question were just given in the common course of things, as following a common custom. In the appropriate language already cited, the Judge must satisfy himself whether that which ' was done, was really done in so unusual and suspicious a way that he ought to impute to the person a criminal intention in doing it. On the second head the petitioners' counsel have rested their case wholly on the respondent's evidence, and I am asked to infer from it the existence of a corrupt intention to bribe. While telling us of his giving this money, he also swears that it was simply in pursuance of a declared purpose of his, avowed two years before. There being nothing very extraordinary in the presentation of $10 to a god-child or name-child, either in the fact or 1871.J , GLENGARRY. 19 the amount of the gift, I do not feel at liberty to refuse to believe that part of his evidence which proves his innocence, and to accept as conclusive the existence of a motive which he expressly disclaims. Thirdly, as to $10 to Tobin, I think it was aa act of singular imprudence under the circumstances ; of this I have no doubt. But I am not so clear as to its being corrupt and criminal. The explanation given by respondent is, that Tobin was a very old friend, brouglit up as a boy with him, a young man recently started in business, and he (respondent) had never been in his house before ; and as he had dirtied the house much, in paying for his actual expenses, which Mr. Bethune says could not exceed three dollars, he thought it right to pay him as it were a compliment on his first visit, and he said he would have done the same thing if it had not been election time. Had I found respondent generally resorting to gach a course in his canvass, and making payments to innkeepers and others largely in excess of the measure of fair remune- ration, or even had there been proof of several such instances, I think I should have found great difficulty in accepting the explanation. In this isolated case, in an election contest singularly and exceptionally free from any profuse expenditure, conducted, in fact, upon the most economical- principles, with no personal canvass or color- able employment of agents, I find it still harder to refuse to accept the innocent interpretation. The election for Glengarry is shown not to have cost the successful candi- date over $100 for every expense. I only refer to this fact as in some way rebutting the imputation of any general design of carrying the election by corrupt means. Had the evidence been at all evenly balanced, I should have been placed in the most painful position of deciding in a quasi-criminal case, without the aid of a jury,' a point involving such grievous results to a candidate. Such position is well described in a late English case, Stevens v. , Tillett, L. R, 6, C. P., 147, where the Judge says: " I cannot imagine to myself a jurisdiction more painful or more 20 PROVINCIAL ELECTIONS. [A.D. responsible than that of a Judge deciding, without the assistance of a jury, that a candidate has been personally guilty of so grievous an offence." I have to accept the heavy responsibility imposed upon me to decide on a man's motives and intentions ; in the words of the last case cited, " with all the questions that must operate on the mind of a Judge not assisted by a jury in pronouncing alone, and without appeal, in a criminal case, and to make the candidate subject to the grievous disabilities imposed in respect of his future status, both parliamentary and otherwise." I think the giving of refreshments to public meetings a most unsafe and dangerous proceeding on the part of the candidate. He is always exposed to imputations on his integrity, and to a possible adverse decision on a judicial inquiry. I reserve to myself to decide whenever occasion may require the broader question suggested on the construction of our statutes. My decision rests on a construction possibly more favorable to the petitioners' view of the law than may be hereafter adopted. Acting, as I am satisfied any jury desirous to act honestly would act on the facts in evidence, I acquit the respondent of the charges advanced against him. To mark, however, my sense of the unwise and imprudent matters that have most probably given rise to this petition. I direct that one-half of the gross amount of respondent's costs taxable against petitioners be disallowed, and that petitioners pay the other half to the respondent. (6 Journal Legis. Assem., 1871-2, p. 6.) 1871.] , STORMONT. 21 STOKMONT. Before Chief Justice Richards. Cornwall, mh to 17th June, and IMh September, 1871. James Bethune, Petitioner, v. William Colquhoun, Respondent. Petition — Practice — Wnt of Election — Scrutiny —Qualification — Mistake in entry of voter on the Roll — Right to Vote — Value of Property — Amendment — Aliens. Held, 1. — That the writ of Election and Return need not be produced or proved before any evidence of the election is given. 2. — On a scrutiny the practice is for the person in a minority to first place himself in a majority, and then for the person thus placed in a mi- nority to strike off his opponent's votes. 3. — The name of the voter being on the poll-book is prim,j. facie evidence of his right to vote. The party attacking the vote may either call the voter, or offer any other evidence he has on the subject. 4. — A voter being duly qualified in other respects, and having his name on the roll and list, but by mistake entered as tenant instead of owner or occupant, or vici versa : Held, not disfranchised merely because his name was entered under one head instead of another. 5. — The only question as to the qualification of a voter settled by the Court of Revision under the Assessment Act, is the one of value. — Oeorge N. jStewart's vote. ■6. — Where father and son live together on the father's farm, and the father is in fact the principal to whom money is paid, and who dis- tributes it as he thinks proper, 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, but merely receives what the father's sense of justice dictates : Held, the son has no vote. — Wm. P. Eamon's vote. 7. — 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 business, he should have a share of the profits, and the son, in fact, solely managed the business, keeping possession of the mill, and apply- ing 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 vote. — Robert BuUoc&'s vote. 8. — Where a certain occupancy was proved on the part of the son dis- tinct 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 : Held, that although the son was not merely assessed for the real but the personal property on the place (his title to the latter being on the same footing as the former), he was not entitled to vote. — John Raney's vote. 9. — Where the objection taken was, that the voter was not at the time of the final revision of the Assessment Roll the bond fide owner occu- pant or tenant of the property in respect of which he voted ; and the 22 PROVINCIAL ELECTIONS. [A.D. evidence shewed a joint occupancy on the part of the voter and his father on land rated at |240 : ffeld, that the notice given did not point to the objection that if the parties were joint occupants they were insufficiently rated, and as the objection to the vote was not properly taken, the vote was held good. — Owen Baker's vote. [The learned C. J. intimated that if the objection had been properly taken, or if the counsel for petitioner (whose interest it was to sustain the vote) had stated that he was not prejudiced by the form of the objection, he would have held the vote bad./ See as to this judgment, the case of Duncan Cahey, post, ] 10.— Where the father had made a will in his son's favor, aod told the son if he would work the place and support the family he would give it to him, and the entire management remained in the son's hands from that time, the property being assessed in both names — the profits to be applied to pay the debt due on the place : Held, that as the under- standing was that the son worked the place for the support of the family, and beyond that for the benefit of the estate, which he expected to possess under his father's will, and that he did not hold immediately to his own use and benefit, and was not entitled to vote. — Joshua WeorVs vote. 11.— Where the voter had only received a deed of the property on which he voted on the 16th August, 1870, but previous to that date had been assessed for and paid taxes on the place, but had not owned it : Held, that not possessing the qualification at the time he was assessed, or at the filial revision of the roll, he was ndt entitled to vote. — Duncan Qahey's vote. A question being raised in this case as to the sufficiency of the notice of objection that the voter was not actually and bona fide the owner, tenant or occupant of real property within the meaning of Sec. 5 of the Election Law of 1868, the learned C. J. remarked, " The respondent's counsel does not say that he is prejudiced by the way in which the objection is taken ; if he had, I would postpone the consideration of the case. It is objected that the case of Owen Baker should be subject to the same rule, and if the question had been presented to me in that view, I think I 'should have felt at liberty to go into the case, giving time to the petitioner to make further inquiries, if bethought proper." The particulars would thereupon have been amended. 12. — Where the voter had been originally, before 1865 or 1866, put upon the Assessment Roll merely to give him a vote, but by a subsequent arrangement with his father, made in 1865 or 1866, he was to support the father, and apply the rest of the proceeds to his own support : Held, that if he had been put on originally merely for the purpose of giving a vote, and that was the vote questioned, it would have been bad, but being continued several years after he really became the occupant for his own benefit, he was entitled to vote, though originally the assessment began in his name' merely to qualify him. — Benjamin Gore's vote. 13. — Where the voter was the equitable owner, the deed being taken in the father's name but the son furnishing the money, the father in occupation with the assent of his son, and the proceeds not divided : Held, that being the equitable owner, notwithstanding the deed to the father, he had the right to vote. Held, also, that being rated as tenant instead of owner did not affect his vote. — Donald Blair's vote. 14. — Where the voter and his son leased certain property, and the lease was drawn in the son's name alone, and when the crops were reaped the son claimed they belonged to him solely, the Voter owning other property, but being assessed for this only and voting on it : Held, that although he was on the roll and had the necessary qualification, but not assessed for it, he was not entitled to vote. — Samuel Hill's vote. 1871.] STOEMONT. 23 15. — Where the voter was the tenant of certain property belonging to his father-in-law, and before the expiration of his tenancy the father-in- law, with the consent of the voter (the latter being a witness to the lease),, leased the property to another, the voter's lease not expiring until November, and the new lease being made on the 28th March, 1870 : Held, that after the surrender by the lease ^o which he was a. subscribing witness, he ceased to be a tenant on the 28th of March, 1870, and that to entitle him to vote he miist have the qualification at the time of the final revision of the assessment roll, though not neces- sarily at the time he voted, so long as he was still a resident of the electoral division. — Joshua Rupert's vote. 16. — Where a verbal agreement was made between the voter and his father in January, 1870, and on this agreement the voter from that time had exercised control, and took the proceeds to his own use, although the deed was not executed imtil September following : Held, entitled to vote. — Wm. J. Qollinger's vote. 17. — Where the voter was born in the United States, his parents being British-bom subjects, his father and grandfather being U. E. Loyalists and the voter residing nearly all his life in Canada : Held, entitled to vote. — Wm. Place's vote. Special report, and observations on making the revised lists of voters final ^ except as to matters subsequent to the revision. The petition contain'ecl charges as to illegal votes, and claimed the seat on a scrutiny for the defeated candidate, James Bethune. The vote was : For respondent, 705 ; for James Bethune, 700 ; majority for respondent, 5. Mr. li. A. Harrison, Q.C., and the Petitioner in person appeared for the petitioner. Mr. J. Hillyard Cameron, Q. C, and Mr. D. B. McLennan for the respondent. Mr. Harrison in opening the case for the petitioner, stated that he intended going into the question of scrutiny firsthand proposed to follow the practice of the English cases, viz : for the person in , a minority to . first place himself in a majority, then the person thus placed in a minority to strike off his opponent's votes. Richards, C. J. — We had better follow the same practice here. Mr. Cameron took the objection, that the writ of elec- tion was necessary before any evidence of the election could be given, and that the writ and return should be produced. Mr. Harrison replied, and cited the Coventry case, 20 L. T. N. S. 406, where Willes, J., was reported to have 24 PROVINCIAL ELECTIONS. [A.D. said, " I shall not require the election to be proved in any of these cases. The poll books are here, and they tell me an election was held." Richards, C. J. — I consider the proceedings some- what analogous to an interpleader issue. The matter is sent down here now to be tried, and it seems to me that after a petition has been presented asserting an election and return, and parties have appeared demanding particu- lars, &c., and have themselves made recriminatory charges, and delivered lists of votes objected to, it would be very inconsistent now to assume that there had not been an election and return. If it were so, we should probably have had an appeal long ere this showing that fact. I think the dictum of Willes, J., ill the Coventry case reason- able, and it ought to be followed. Mr. Harrison then urged that the respondent should first dispose of the recriminatory charges of bribery. 3fr. Cameron stated that as to the recriminatory charges, there were only three which affected the petitioner's status under the statute, and as to them, he was not prepared to go on ; as to the others, that they did not charge personal knowledge of the corrupt practices by the petitioner, and in his opinion there must be personal participation in the corrupt practice by the petitioner to disqualify him. Richards, C. J.— I do not think he ought to be com- pelled to go on with the first three now. Mr. Harrison contended that the onus of proving a qualification was thrown on the voter, or on the party who wishes to sustain the vote. Richards, C. J.,— I think the voter being on the poll book is priirid facie evidence of his right to vote. If the party objecting to it resolves to attack it, he may call the voter if he please, or give any other evidence he has on the subject. 1871.] STORMONT. 25" Counsel on both sides then requested the ruling of the •Court on the question of a voter, properly qualified, but who by mistake was entered on the roll as tenant, instead ■of owner or occupant. Richards, C. J. — The rota Judges have determined to hold that when a voter is duly qualified in other re- spects, and his name is on the roll and list, but is by mis- take entered as tenant, instead of owner or occupant, or vice versa, he, really having the qualification, is not dis- franchised, merely because his name is entered under one of the heads, instead of under another. The petitioner then proceeded with the scrutiny : GEORGE N. STEWART'S VOTE. Gilbert Stewart was called on the vote of George N. ■St&wart. It appeared by the evidence that the witness was the owner of Lot 6, in the Township of Osnabruck, -and 4 or 5 acres of Lot 7, for the latter of which George N., his son, the voter, was assessed. The son had been ■assessed on this for 3 or 4 years. The taxes were paid the same as the rest of the taxes on the place. The son had no more interest in these 4 or 5 acres than in the rest of the farm. He was accustomed to use what he required for necessaries, clothing, &c., but did not own anything as of right on the farm. Mr. Cameron contended that under the Assessment Law, the voters' list is final as to qualification, and cited 32 Vic. c. 21, s. 7, subs. 10. RiCHAUDS, C. J. — The rota Judges have had this ques- tion under consideration, and have arrived at the con- clusion that under the statute the only question of quali- fication which was considered as settled by the Court of Revision, was the one of value. The others are open for investigation on a scrutiny. Vote bad. WILLIAM P. EAMON'S VOTE.. Joseph Eamon called on the vote of Wm. P. Eamon : 1 live in Osnabruck. I live on the East \ of 7 and West i of 6 in that concession, I have lived there about 26 PROVINCIAL ELECTIONS. [A.D. 23 years. I own the land. Wm. P. Eamon is my son. We have possession. He lives in the same house with me, a member of the family. He makes his living off it. I gave him a privilege of half what we raise — the bargain i& verbal. It has been going on that way for some years. There was no bargain in particular made about it. Never made division of the crop, except when sold. I gave him more than half of it. There never was any bargain made between us. He is the only son I have. I expect him to have the place after I die. He has a family. There is no distinct share agreed on between us. He, when the grain, is sold, gets better than half of the money. I give it to- him, because he does more than half the work. I allow" him to give in 50 acres of the land. He has no title of it. That is not cultivated any different from the rest. He. does the chief "part of the work. We paid the taxes and did the road work between us. I allowed him to give in the 50 acres to satisfy him. I don't know if it was to give him a vote — ^it might have been. I don't recollect its being talked over for that purpose. The house and bam on that part I gave it myself. The grain is all put in the same barn — used at the same time. My son has three children. I hav^ my son and a daughter. He has always lived with me. I told him when he was married he could bring his wife there, and remain with me. He ex- pects, of course, to get all my property. This arrangement continued since he was married. He has a part of the house considered his own, but we all eat together. When anything is sold he receives a part of it. The practice has grown up between us since he was married, to give him a share of the proceeds, and that has taken place every year since he was married. He still hands me the money, and I give him his portion. Sometimes it amounts to more^ than others, according to what he sells. He manages the whole farm for me. I have been in the habit of consider- ing him as jointly in occupation of the farm. Cross-examined : His proportion is more or less, as the grain will sell. We can't divide the grain — we divide the. 1871.J STOEMONT. 2T money. I generally give him more than half. He has. got half ever since he was married. We keep no accounts.. I just handed him what I had a mind to, and that was- the only arrangement, and he was satisfied. He had no- writing to him made out. If he was not satisfied with what I gave him, he could not compel me to give him any more. I did not intend to make any arrangement with him so that he could compel me to give him any share. If we should at any time disagree, I could turn him out at any time. He has no right to remain there. I am ■master myself. It appeared in this case that the assessment roll showed both father and son rated for the land, two quarter lots- On the voters' ligt the father was rated for one quarter, the son for the other. Mr. Cameron contended that the vote was good, and. cited the Assessment Act of 1868-9, sec. 27, Election Act 1868-9, sec. 5, sub-sec. 2, followed by the interpretation, of the term "occupant," sec. 6, sub-sec. 2. Richards, C. J. — The rule applicable to this case, and which I think is in accordance with the view of the rota judges, is that when the father and son live together on the father's farm, the father being in fact the prin- cipal, as in this case, to whom moneys are paid over^ and who distributes them as he thinks proper, and the son has no agreement or understanding binding on the father,, either to compel him to give him a share of the proceeds, of the farm, or to allow him to cultivate a share of the land, and he merely receives what he gets from the father's, sense of justice and right, that then the son has not such an interest as qualifies him to vote under the election law. EOBEET bullock's VOTE. Robert KnigM Bullock, called on the vote of Robert Jiulluck : Eobert Bullock is my son. I own Lot No. 8 in 1st Con., Osnabruck. I have owned it 30 years and upwards. I have been in possession of it, and am still in possession of it. My son Robert was born on the lai^d. '28 PROVINCIAL ELECTIONS. [A.D. He has not always been there with me. He has been with me the last four years. He occupies the mill on the west part of the lot. I own the mill. My son runs the mill for his benefit and mine. There is only a verbal agreement between us about it. It was made four years ago. The agreement was that he should have a fair proportion — whatever was considered as fair. I think the agreement was made in presence of the whole of the family. He keeps the accounts. We have never had a settlement. He had all he required. He charged himself with what he took. Cannot say what he charged himself the last four years. He handed over the proceeds every week, save what he kept for himself, to his mother or me. He is a miller — runs the mill. The business is carried on in my name and his. The invoices are generally . made out in the name of R. K. Bullock. I have seen some made out in his name. He lives at my house, with the rest of the family. The agreement was to last as long as it suited him and me. I think he has kept more than was reason- able to clothe him and furnish pocket money. We have had losses in the business. He gave no money towards them, but was more moderate in what he drew. He is not married. I cannot tell what he got in any one year. He was to have a liberal allowance, having charge of the mill — more than most young men. Cross-eosamined : It is a grist mill, with three run of stones ; he has no wages ; he runs this mill jointly with me, and has done so for four years. 1 could not put him out of the mill as I thought proper. I have had no settle- ment with my son as to our transactions. He will be 28 next birthday. I thought him entitled to a good liberal .allowance — once or twice I thought he drew more than required for the business we were doing just then. Some- times the profit was very small. He is a miller — under- .stands the trade. I presume there would be some trouble in putting him out of the mill — some time to give him notice. The understanding between us was, when we re- turned from the West, if he would stay, he would have a 1871.] STORMONT. 29' good liberal allowance for his work. There was a man employed about the mill at so much a month ; he was. paid in cash ; Robert hired him ; he took what he chose ;. sometimes I presume what he took was more than suffi- cient for his ordinary expenses. The share he took would, amount to more than £50 a year. He was differently situated from my other sons. He did all the collecting o^ the debts ; is still there on the same terms. Before he took chai-ge this was rated in my name. Immediately after he came there he made the arrangement ; there was. a change. I think he sent the money for the taxes ; I know I did not. I am not there a great deal ; he is, and. he attends to those things. He does not get $300 in cash from the mill — not much less than $200. He boards at> home. I have a first-class miller at $500 a year and the. house, and they board themselves. Re-examined : I have bought some of his clothing since he came back. I did not charge him with it ; sometimes, he pays for it, sometimes not. I have paid for a good, share of his clothing for the last four years. When he wants to go away from home, and the horses are there, he generally takes one. I am certain he took more than $100 in cash in each year for the last year or two. Richards, C. J. — I think in this case, the original agreement between the parties shows an intention to give the son something more than a mere gratuity such as the father might choose to allow him. The father says he. told him if he would stay at home and take charge of the mill, he would give him a share of the profits ; no specific share was agreed on, and the son took out of the proceeds., what he thought right ; the father sometimes thought it too much, but did not mention this to the son ; did not. close the business or the connection. I think here the son had something more than a sum of money out of the pre- mises at the will of the father ; he was entitled to a share ;, had an interest in the business, and, as such, while the business lasted, an interest in the land, and was at all events a partner in the profits, and might be considered aa so PROVINCIAL ELECTIONS. [A.D. having an interest in the land. Bullock says, I understood we were to be partners in the milling business under this .arrangement, and he was to have a fair proportion of the profits. I, therefore, think this vote good. JOHN RANET'S VOTE. John lianey, called as to his own vote : I voted in Stormont as the owner of the east half of twenty -five, in the third concession, Roxborough. My father owns it ; I have no title or lease of it ; I live on it ; have lived on it eighteen or twenty years. Father lives on it with me. We both live in the same house. I was married about two years ago. Father has told me he would give it to me. He has offered me a deed of half the lot. Mother is dead. I have a sister living ; my sister managed the household until I was married. My father is about seventy. I always remained there with him. I thought he would give it to me. No writing between us. I have remained in the ex- pectation of getting the whole when he dies. Gross-exanimed : My father is not able to work. We live together. He said he would give me a deed of half at any time, and that the whole place was for me. My brother left five years since or more ; he is younger than I. There are a hundred acres in the lot, thirty-five or forty acres cleared. I sell if I am there ; he sells if he is there. I do pretty much all the business. When he sells grain he gets all the money. I am relying on what he said to me in staying with him. It has been assessed to me eight or nine years ; sometimes my father, and some- times I myself give it in. Father pays if he is there when the assessor comes ; and when I am there, I pay. I keep the store account in my name and pay the necessaries for the house. He directs the place to be assessed in my name. I don't know who is master of the house ; we are hoth there ; he built it. I consider I ought to obey his orders as a son ought to do towards his parent. I tell him what I do with regard to the business of the place. One of the horses I bought this winter I claim. My sister and T-871.J STOEMONT. 31 sister's daughter claim most of the horned cattle. When I sell anything, I consult him if he is there ; if not there, I sell and tell him. The cattle are assessed in my name — everything. My father, when able, gets about and sees to odd things about the house, but can do no hard work. I consider it my duty to consult him about what I sell. If he was about to assist a neighbor, and consulted me about it, I don't think I would be justified in objecting to his doing so. I consider him the owner of the place. Before I was married we were living together ; I would give in he was boss of the house. My sister was also living there, and also a niece of mine, seventeen or eighteen years of age. Mr. Harrison contended that the voter had a right to enforce specific performance of the agreement with his father, and cited McDonald v. Rose; 17 Grant, 657. Richards, C. J. — This case has much in it to shew a kind of occupancy distinct from the father, and if the father had received from him a certain share, or he him- self a certain share, or there had been an agreement between them, either expressed or implied, that he should receive the profits of the place, and the father lived with him, it might have been difierent. But the case seems to me, to be really that of a man and some of his unmarried children and grand-children living together en famille, the hard work being done by the younger branches who are able to work, the old man not being able to do so, but in fact being the head of the family nevertheless. It is true the place is assessed in the name of the son, but so were the cattle and other loose property, as I understand from the witness, and he did not claim to own them. On the whole, I think this vote bad. OWEN baker's vote. Owtn BaJcer, called as to his own vote. The evidence was very similar to that in the case of Robert Bullock. It appeared on the evidence of the voter that he and his elder brother had entered into an agreement with their 32 PROVINCIAL ELECTIONS. [A.D;_ father, that they were to carry on his (the father's) mer- cantile business in the village of Aultsville for three years^. the sons to leave the business at the expiration of that time in as good condition as when they commenced — the sons to have all the profit. Shortly after the agreement , the elder brother left the country, and the voter continued to carry on the business with the aid of his father. The voter was assessed on ten acres of the farm (one hundred acres) which was managed in the same manner as the mercantile part of the concern. The books were kept and purchases made in the father's name, who could also sell what he pleased out of the concern, or the produce of the. farm. On cross-examination he stated that he thought his, father could not compel him to leave, if he was unwilling, before the expiration of the three years. When the agree- ment was entered into stock was taken. The son could sell a team if he thought fit without speaking to his father about it, could sell stock as he pleased, and appro- priate the money. The ten acres was worth about $30 an acre. Simeon Baker, the father of the voter, Owen Baker- The assessment on the roll for the son was ten acres* value $240. He was entered as freeholder. Was not certain if he gave it in as occupant. No one lived on the farm, but the son worked it. Had promised the interest of it for three years. The understanding with the son was, he . was to keep it as good as when they started. Would consider it wrong to take $20 out of the produce of the farm, but could do it if he thought proper. Could buy and sell in the store, but could not say that he could take anything without the son's leave. The ten acres was con- sidered sufficient rating to give the son a vote. There was. no agreement in writing as to the land or anything else. On cross-examination this witness stated that the object, in making -the arrangement was to benefit the son ; he was working in Matilda, and the witness wanted him and his brother at home. They thought of going West, which. 1871.] STOEMONT. ' 33 he, the father, did not desire. They took up the business on the arrangement that they were to have all 1?he profits for three years — the stock to be returned to witness as good as when they commenced — the personal expenses of the witness to be the same as the rest of the family. Mr. Cameron objected that the voter had no interest in. the land. He was not a joint occupant with the father and if he were, the assessment was not sufficient in amount to qualify for both. Election Act, 1868-9, sec. 5, sub-sec. 2. Richards, C. J. — I consider the father and the son have a substantial interest in the business and its proceeds, and in the proceeds of the farm, and in the land ; but perhaps not strictly a term. I think the interest the son has is in the nature of a joint one with the father. Mr. Harrison contended that the objection taken to this vote does not touch the point. The grounds of objection are in schedule No. 6, and are thus stated : " List of voters who voted for the petitioner at the said election, objected to on the ground that they were not, at the time of the final revision of the assessment roll in which their names appear, and on which the respective voters' lists were based, the hond fide owners, occupants, or tenants respectively of the property in respect of which they were assessed and voted." Mr. Cameron, said that the objection came fairly up, under the objection that he is not a bond fide owner, occupant, or tenant of the property in respect of which they were assessed and voted. This means that he was not assessed to the value to qualify him. See Wolferstan, p. 98. EiCHAUDS, C. J. — I do not consider that the notice, as given, points to the objection, that if the parties were joint occupants, they were insufficiently rated to qualify the voter. I therefore hold this vote good, on the ground that the objection taken does not point to the real diffi- culty, viz., the joint interest being insufficient. But if the objection had been properly taken, or if the counsel for the petitioner (whose interest it was to sustain the vote) had 34 PEOVINCIAL ELECTIONS. [A.D. stated that he was not prejudiced by the form o£ the objection, I would have held the vote bad. (See Cahey's vote, post.) JOSHUA WEOET'S vote. Joshua Weort, called as to his own vote : I live on part of 16, in 7th Concession of Osnabruck ; my father lives with me. I have no lease or deed. He made his will to me last January. Some seven years ago my father told me if I would stay and reclaiim the place and support him and my mother and my sister, and if I worked the place, he would give it to me. I did work the place, but made very little out of it. It was pretty well run down ; and so involved, that the loose property would not come near paying the demands. I worked on and made money, and redeemed the place, and father made a will in my favor in January last. I am married ; have been four years. My wife and all live together in the same house. I think my .father is about 77. Cross-examined : I was to have the use of the place in the meantime. From that time I have had the use of the place just as I liked ; used it as my own ; contracted and paid all debts as my owr — I have used the place just as if I had had a deed of it for the last four years. He then became so old that he could not assist me. He has not been able to do anything of any value. I bought and sold stock on my own responsibility. There was some stock on the place when I went on ; it was understood it was to be mine if I paid off the debts. I have paid off between four and five hundred dollars. There was a change in matters after that ; I became the master there, and he consented to it. My father used to apply to me for money within the last two or three years. I am managing this business as my own, on my own account, and for my benefit, and that is the understanding between us. I pre- sume it is so generally understood in the neighborhood. It is assessed, for four or five years last, in the name of myself and my father ; the cattle all assessed in his name. 1871.] STOEMONT. 35 Se-examined : I did this to clear off the place ; to get it in the end for myself. That was the motive with which I made the agreement. My father and the family were to have their support in the meantime, and whatever I made was to go to pay off tlie debts ; they are not wholly paid yet. I had confidence in my father that he would will it to me, and did not make any agreement as to what I would have in the event of his not willing it to me. Richards, 0. J. — The arrangement is, in fact, such as shows the use and occupation for the benefit of the estate in paying off the debt. I consider that the real understanding is, that the voter works for the benefit of the estate, and beyond what is used in supporting the family is to go to that purpose. If he had had a right to it for his own benefit, it would be possessed for his own use and benefit. What he reaUy works for, and the profit of the estate goes to, is his expected possession .of his father's estate under his will. I think this vote bad. DUNCAN CAHEY'S VOTE. Duncan Gahey, called as to his own vote : I live in Rox- borough, 1st Con., part of 17 and 18. My father's name is Edward. My father lives on the lot ; has lived there 30 years; owns part of it. I own the south part of west half of 17. I have a deed for it ; I have it with me : I got it last August, the day it was dated ; its date is the 16th August, 1870. I did not own the lot until I got the deed. I had no claim to it before that. I voted at the election ; I am called McCahey. I don't own any other property ; the property has been assessed in my name for the last 5 or 6 years. My father is over 70. I have generally paid the taxes. Mr. Harrison. — This man is not a voter within the meaning of section 5 of the Election Act 1868-9. He is not rated for the lot — if he was, he is not a voter under the section. The true meaning of the section is, that he was so possessed at the time of assessment. See the form of oath to be administered to voter under section 41 of the Act. 36 PROVINCIAL ELECTIONS. [A.D. Mr. Cameron, contra. — There is nothing to show that the roll might not have been revised after he got his deed — nothing in the 5th section o£ the Act to declare that the person should have the title, and nothing in the section referred to, to call attention to the particular objec- tion now raised, and it is only by referring to the oath that the point comes up. Mr. Harrison, in reply. — The statute only permitted appeals to 5th July, under the Assessment Act, 32 Vic, cap. 36, section 63, sub-section 6. The general form of objection was sufficient : if the parties thought it not suffipiently specified, they should have demanded better or further particulars. RicHAKDS, C. J. — I think this vote bad, because the voter did not possess the qualification at the time he was assessed, or before the final revision of the roll. The respondent's counsel does not say that he is prejudiced by the way in which the objection is taken. If he had been, I should postpone the consideration of the case. It is objected that the case of Owen Baker should be subject to the same rule, and if the question had been presented to me in that view, I think I should have felt at liberty to go into the case, giving time to the petitioner to make further in- quiries if he thought proper. BENJAMIjr gore's VOTE. Benjamin Gore, called a§ to his own vote. It appeared by the evidence of the witness, that he lived with his father, and had voted on his, the father's property. His father had made a will in his favor, but he had no title but a verbal agreement with the father. The agreement was made at the time the will was made, about 1865 or 1866. The son was to take the proceeds after supporting his father and himself ; did not account to his father for the proceeds. Witness was assessed for 10 acres, value $250. The assessment was made in his, the witness' name, before the arrangement with the father. It was done to give him a vote. The father paid the taxes before the agreement, the son pays them now. 1871.] STORMONT. 37 Mr. Cameron, contended that the arrangement was a colorable one, merely to give the son a vote. The ten acres were not specially mentioned. Richards, G. J. — If the name had been put on originally (before 1866) merely for the purpose of giving a vote, and that was the vote questioned, I should probably hold it bad ; but being continued after he reaUy became the occu- pant for his own benefit (since 1866), I cannot say that he is not now properly a voter, even though the name was continued there to enable him to vote. I think the vote good. DONALD BLAIR'S VOTE. Janies Blair, called on the vote of Donald Blair ; I live on the west | of Lot 26 in the 6th Con., Roxborough. I am the father of Donald Blair. He lives with me. He has no written agreement, lease, or instrument. When it was purchased he sent me the money to pay for it, about four years ago,' and I took the deed in my own name. He was then in the States, and came back a year after. He is living with me, as the other son. He is the oldest. He is not married. By means of that lot he has bought another last spring. He paid only $300 for the lot. We are all working the place. He has got a deed for 32 in same concession. Bought it last spring. I own my place. The N. W. J of 26 in the 6th Con. is the lot the boy voted on and which he sent me the money for. My sons and me are working and occupying it since about a year ago. He had not any interest in it beyond this, that his money bought it. Cross-examined : I bought Lot 26 more than thirty years ago. I bought 25 for Donald. I wrote him I could buy the place for him cheap. I mentioned $300, if he could send me the money. I bought the pl^ce about four years ago. Took the deed in my own name, as he was not at home (he is about 27), and when he returned he went to live with me. Neither of us live on 25 ; he works it it all comes in together, and is worked the same as my farm. By the labor and assistance of myself and his 38 PROVINCIAL ELECTIONS. [A.D. brother, we made money -which enabled him to buy another placed I consider it his, and it is his. He thought it would be too little to give his vote on the lot he bought, and he was assessed for three years for Lot 25. He was assessed the first time the assessor came round after I bought it. The other son is 20. I have three daughters unmarried and two married. My son never asked me for a deed for it, nor did we ever speak of it. Nothing separate from what was raised on 25 for my own. No building now on 25. We all worked on the three lots assisting one another. Before we bought the last lot we all worked on the two, assisting one another. .We make no shares. The young boy expects my lot ; it is so under- stood. The homestead is 130 acres with buildiags. The oldest son gets 150 acres — no buildings. The girls are to have the loose property. We are working harmoniously, assisting and aiding each other. It is understood in the neighborhood that he is the owner. . Mr. Cameron. — The father is trustee for the son. They are not rated for enough to have them, both qualified. And as to the ownership, the father is in possession, and has the profits to his own use, and therefore is literally the owner. Richards, C. J. — I think the father is in fact the owner, but not in his right as owner in fee, but as occupant with the assent of his son. I think, on this evidence, the son is the equitable owner, and rated as owner, would have a right to vote, notwithstanding the deed to his father, and I hold that the mistake in that respect, being rated as tenant instead of owner, does no harm. I therefore for the pres- ent hold the vote good, but, if necessary, may reserve it. SAMUEL hill's VOTE. Samuel Hill, called as to his own vote. It appeared, on the evidence of the witness, that he and his son had leased certain property, the lease was drawn in the son's name alone, and when he and his son reaped the crops, the son claimed that they belonged to him solely. The witness 1871.] STORMONT. 39 owned other property, but when the assessor called on him he requested him to assess this particular property to him, and on this he voted. Mr. Harrison. — As he was on the roll, and had the necessary qualification, though not assessed for it, the vote should stand. Mr. Cameron. — He voted in right of this property, and had it assessed to him in preference to the other by his own desire, and cannot in consequence now claim to vote. The Chief Justice held the vote bad. JOSHUA RUPERT'S VOTE. Joshua Rupert, called as to his own vote. It appeared on the evidence of the voter that he voted on part of Lot No. 6, 8th Concession, Osnabruck. Did not own it ; his father-in-law did. Had occupied it for five years, paying rent to his father-in-law. Lea;se expired in November last. Left it about a year ago — on first of last April. After he left, it was let by his father-in-law, with his consent, to a man named Stewart, for a larger sum than he paid, and the father-in-law paid him the extra rent. Was a witness to the lease to Stewart, which was dated 28th March, 1870. On cross-examination he said that it was agreed at the time of the lease to Stewart that the father-in-law should pay him, the voter, the increased rent, which he did. Richards, C. J. — I think after the surrender by the lease, to which he was a subscribing witness, he ceased to be a tenant. I am of opinion that the party must have the interest that qualifies him at the time of the last final revision. If he has it then, though not at the time of the - election, he could properly vote if he were still a resident of the electoral division, but not unless he had the interest at the time of the revision of the roll. The roll was com- pleted 30th March, two days after the new lease. I think the vote bad. WILLIAM J. GOLLINGER'S VOTE. George M. Gollinger, called on the vote of Wm. J. Gollinger; I made a deed to Wm. J. Gollinger of east half 31, fifth Concession, Osnabrupk. It was made on or about 12th 40 PROVINCIAL ELECTIONS. [A.D. September, 1870. There was a verbal agreement between him and me about 10th or 12th January, 1870. I was to give him the property. He left home and went to Wis- consin a few days before the holidays of 1869. About 10th January I sent him word if he would come back I would give him a deed of this lot ; he came back immedi- ately with the person by whom I sent the message. He was not then married. In September I made him the deed. We had some understanding about it before I made the deed. My son WiUiam got the proceeds of the place wholly and solely. I never got a fraction of the proceeds of this. Cross-examined: We had three farms. We worked together. It was understood he was to have the produce of this farm to himself separately. This was the under- standing between us in January, 1870. His share was put by itself, and kept separate from the rest. I worked 100 acres in the 7th Concession, and .50 acres in the 4th Concession also. Of thesQ he had no share. We lived together at that time in the dwelling on this lot, until I gave him the deed. When I gave him the deed I was to leave. It was his privilege to let me remain. I had no management of this part. I did on the others, but let him do as he liked about this. I think my son was twenty- three years old in May or June. This understanding was not varied in any way after. It was part of the under- standing that he was to have control of the place last summer. I suppose he went away because he wanted some property and I would not give it to him, but I changed my mind. Re-examined : When he came back the agreement was that if he would stay at home and work the farm, I would give him a deed at any time he chose to ask for it. He would rather I should stay with him and give him a deed, so that he could have control. I would rather have con- trol myself, and so I • would not stay there. He was anxious for the deed, and so I gave it to him. I thought he would have been willing I should stay there if I would 1871. J STORMONT. 41 give him the deed. I would prefer to stay elsewhere. I did not have any control. I never wished to stay there from the time I made the verbal bargain. His own hand worked it. I gave him a team, span of horses, for stock farming in September. I promised that in January, and transferred it in September. I told him I would give him seed to sow the place. I promised him no help. I helped him some. He did not pay me for his board, nor did I pay him for the rent of the house. The teams pastured on the place. His lot and mine remained together, not separated by fences. I could not tell how many bushels of grain I gave him that year. He did not promise to work for me. He worked as before — beginning at one field and finishing that, and then at another, and so on, as before ; but this was upon an understanding. In Sep- tember I went to a lot I had in the 7th Concession. He remained on the lot. I gave him the deed and property I promised him, and the cattle, and I went to the 7th Con- cession. Until he got the deed it was understood he was to go and work the farm — the east half of 31 — if he should think proper. I was to give him a span of horses, waggon, harrow, four cows, six sheep, four hogs, and two pigs, and he was to have one half of the house furni- ture. He was to have these at any time he wanted. This was to be done at the same time with the deed, and at the time of the deed I did give them to him ; he went on then under these terms, and went to work. He never said he wanted them until September. He took possession of them in January — of the horses and cattle, and these things. We never drove them off! I pointed out the four cows and the horses, and he took possession of them then. He was to get six sheep out of the flock. He was to have four of the hogs in the fall. He attended to these horses himself, and my son to the other team. He groomed and fed them as his own. I said to him in the spring, if he would help us to put in a crop in the other land, we would help him ; he agreed to do so, and we went and did it. There is only one barn on 31 ; it was on his part. There 42 PROVINCIAL ELECTIONS. [A.D. were no crops to mine ; the stuff was put into the bam on the place as before. He took control of it after, and used it. I had nothing to do with it after. I did not take any- thing off the place since or before. Richards, C. J. — I think this vote good, according to the rule we have acted on. WILLIAM place's VOTE. William Place, called as to his own vote. It appeared from the evidence of the witness that he was informed by his mother he was bom in Ogdensburgh, in the United States. Both father and mother were born in Canada. He left Ogdensburgh when he was nine months old, came to Canada, and had resided in Canada ever since. F. H. Shaver, called as to same vote. Witness was cousin of the voter. Knew him and his family. The voter's grandfather came originally from the United States. Drew land from Government, as did also voter's father as a U. E. Loyalist. Understood that the voter was born in Ogdensburgh. The father of the voter moved to Ogdens- burgh about three months before the voter was born. Richards, C. J., held the vote good. The Court was then adjourned; and on the reassembling of the Court (12th Sept., 1871) it was found that both parties appeared to have an equality of votes on the scrutiny. The Chief Justice thereupon declared the election void, and made the following special report on the case : " I think it my duty to make a special report in relation to the proceedings before me on the trial of this Election Petition. " The trial commenced on Monday, the 12th June, and continued during the week. A large number of witnesses was in attendance. It became necessary to adjourn the proceedings until the 12th September ; on which day the Court again met at Cornwall. " Immediately after the opening of the Court it was admitted that [three votes] were bad, and should be struck 1871.] STORMONT. 43 off from the votes polled for Mr. Bethune; making on the whole 40 votes that had to be struck off from the 700 who voted for Mr. Bethune, leaving for him 660 votes. And Mr. Colquhoun's votes numbered 705, and there have been struck off of these 45 as bad votes, showing 660 votes for him, thus leaving an equality of votes ; and the parties agreed not to proceed further with the scrutiny. " The charge of corrupt practices against the petitioner was abandoned, and no such charge was made against the respondent in the petition. The petitioner then offered himself for personal examination as to corrupt practices. I did not see any reason for examining petitioner or respondent. " Both petitioner and respondent agreed that it was best for the interest of all parties that the case should be dis- posed of by my determining the election void, as was proper to do when there was an equality of votes. (1 Roe, 804 ; 1 Peckwell, 504 ; Chambers' Dictionary of Elec- tions, 228). " The number of votes to be inquired into on either side on the objection taken to them, was great, the wit- nesses were very numerous, and the expense of their attendance such that both parties felt that it would be less burdensome to themselves, and the electors even to have a new election than' to continue that inquiry, which would likely be procrastinated for two weeks. " I was not prepared to dissent from these views, and saw no reason why the parties should not be allowed to carry them out. " Neither of the parties asked for the- costs of these pro- ceedings. " I adjudged and returned that there was an equality of vote^ as between the petitioner and the respondent. "It was agreed between the parties that a new writ might be issued by the House, and I finally determined, as already reported, that the said William Colquhoun was not duly elected, in this that it then appeared there was 44 PROVINCIAL ELECTIONS'. [A.D. an equality of votes between him and the said petitioner, and therefore the said election was void. " 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 the 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 inquired into before the Kota Judges, on a scrutiny, should be such as might arise after the filing of the Eevised List of Voters. And if it is thought the pre- sent mode of revising the list is not the best for pre- venting fraud, that some other mode should be devised by the Legislature in their wisdom for that purpose. " The present system of investigating the qualification . of voters on a scrutiny before the Court is ruinously expensive to the parties, and may be very inconvenient to the electors who are required to attend the Court for that purpose. "In consequence of the inquiry being made at one place as to all the disputed votes that have been polled at the election, it becomes necessary for a great many of the electors to attend so that the trial mav not be delayed for want of witnesses, and of course, much time is lost in con- sequence. " Whereas the Court before which the revision of the list is to be had, might avoid the inconvenience by regulating its sittings as to the season of the year, and fixing of the days on which the Voters' List of any particular town- ship, or division, was to be revised ; and in this way would require only the attendance of a few persons, and at a time and at the season most favorable for them." (5 Journal Legis. Assem., 1871-2, p. 6.) 1871.] PRINCE EDWARD. 45 PRINCE EDWARD. Before Chief Justice Richards. PiCTON, ^7th September, 1871. Wm. Anderson, Petitioner, v. Gideon Striker, Respondent. Sight to attack Candidate-Petitioner's qualification — Hiring of Teams by Agents. The respondent, on the opening of the case, charged that the petitioner was a candidate at the election, and as such candidate was guilty of corrupt practices, and therefore disqualified to be a petitioner. The Chief Justice, without deciding whether the respondent had the right to attack the qualification of the petitioner, allowed the evidence to be given, biit Held the same to be insufficient. On the admission of the respondent's counsel the election was avoided, on the ground that agents of the respondent had, during the election, hired and paid for teams to convey voters to the polls. The petition contained the usual allegations of bribery, etc. Mr. J. Hillyard Cameron, Q.C., for petitioner. Mr. Bethune, Mr. J. K. Kerr, and Mr. Allison, for re- spondent. At the opening of the case, counsel for the respondent contended that they had a right to contest the petitioner's qualification, and to show that he was disqualified from being a candidate by being guilty of corrupt practices by himself and his agents ; citing the Youghall case, 21 L. T. N. S., 306. Counsel for the petitioner contended that though a peti- tioner might be disqualified as a voter, and disqualified to be elected, yet the objection now urged cannot apply to a candidate. Leigh, and Le Ma/rchant's Election Law, 102. A bribed voter is disqualified by Common Law. A party dis- qualified by statute from being elected is not disqualified from petitioning as a candidate. If the application now made had applied to the petitioner as a voter, the peti- tioner might have asked that some one else should be allowed to petition, or be substituted. The charge is against the petitioner as a candidate, and the statute works no disqualification as such. 46 PROVINCIAL ELECTIONS. [A.D- RiCHAEDS J. C. — I do not feel disposed to decide on the narrow ground that a party may be qualified as a candidate who is incapable of being elected. I therefore prefer reserving this question to deciding it against the respondent. If the petitioner requires time to meet these charges, so suddenly brought against him, I will probably give him further time. . Evidence was then given on the charge of bribery against the petitioner, after which, The Chief Justice held that the evidence failed to establish the charge. Counsel for the petitioner then proposed to adduce evidence that the agents of the respondent had paid for conveying voters to the polls. Counsel for the respondent admitted that the hiring of teams by agents of the respondent, to convey voters to the polls, had taken place during the election without the knowledge of the respondent. The respondent was then examined, and proved that he had no personal partici- pation in such or any other illegal acts. At the conclusion of his evidence judgment was given as follows : RiCHAEDS, C. J. — I am of opinion that the corrupt practices relied on by the petitioner, as above stated, and admitted by the respondent, are corrupt practices within the meaning of the Controverted Elections Act of 1871, and that the same prevailed at this election, and that the election is therefore void ; such practices, in my judgment, being of a character to affect the result of the election. It has not been proved before me that any corrupt practices have beeii committed with the knowledge and consent of either of the candidates at such election. The names of persons who have committed corrupt practices have not been given in. I am not prepared to say that corrupt practices extensively prevailed at the said election. Costs followed the result. (5 Journal Legis. Assem., 1871-2, p. 7.) 1871.J WELLAND. 47 WELLAND. Before Mr. Vice-Chancellor Strong. Welland, 9th October, 1871. James Hugh Beatty, Petitioner, v. James George CuRRiE, Respondent. Amendment of Particulars — Evidences of Agency — Treating without Corrupt Intent — Costs. At the trial of the petition, an amendment of the particulars as to corrupt practices will be allowed ; and if the respondent is prejudiced by the surprise, terms may be imposed. To sustain the relation of agency, the petitioner must show some recogni- tion by the candidate of a voluntary agent's services. The Westminster case (1 O'M. & H., 89) as to agency followed. Treating, when done in compliance with a custom prevalent in the country and without any corrupt intent, will not avoid an election. The petition was dismissed, and, by consent of the respondent, with- out costs. The petition contained the usual charges of corrupt practices, etc. Mr. J. ^Hillyard Cameron, Q.C., a7id Mr. Baxter, for petitioner. The Respondent in person, Mr. C. E. Hamilton, and Mr. A. Q. Hill, for respondent. The evidence affecting the charges on which the Teamed Judge gave judgment, was as follows : Sylvester Neelon : I live at St. Catharines. Am a voter in Welland. I canvassed for Mr. Currie at the last elec- tion. To the best of my knowledge I received a note from Mr. Currie asking me to solicit a couple of persons to vote for him. I spent no money on account of the election I went into a tavern at Port Colborne on polling day. I cannot give the name of the tavern. ' The Respondent objected. No charge as to this witness is in the particulars. The names of persons who are charged with having treated voters are given, but this witness is not among them. 48 PROVINCIAL ELECTIONS. [A.D. Mr. Gayneron. — There is a general allegation o£ corrupt practices in the petition, and this is a corrupt practice. By the 66th section spirituous liquors are prohibited from being sold or given on polling day, and all prohibited acts are corrupt practices. The Vice-Chancellor. — The name of this witness is not in the particulars, but the petitioner is entitled to an amendment adding it. ■ If the respondent is prejudiced by the surprise, terms may be imposed. The amendment was then made. Witness continued: I treated several of Beatty's men there. I paid something for the treat. I also treated a few persons at a small shop in ^umberstone. I think also I had something to drink in a tavern in Welland on polling day. I cannot say whether I treated, or other persons treated me, on the last occasion. William 0. Cowan : I live in Thorold. I voted for Mr. Currie. There were a few of us who undertook to look up voters' lists and canvass for Mr. Currie. I never met Mr. Currie at Thorold. I saw him frequently at St. Catharines during the canvass and spoke of the election. We met at Mr. Munro's several times about the election. We spent no money that I know of, nor was there any treating. I asked one Fair to vote for Mr. Currie. I held out no inducement or promise to him. On one occasion previous to the election I treated him. I asked him, if he would not vote for Currie not to vote against him. I say positively I held out no inducement to Fair. There has not been a meeting of the committee since the election. Cross-eanmined : There was never any committee ; no organization. We did not communicate with Mr. Currie, nor make him aware of our proceedings. Hobert Eddy : I live in Thorold, and voted for respondent. I was not a member of any committee. I never spoke to Mr. Currie during the election. I canvassed only three persons. I met some others who looked over voters' lists I met them casually on the street. I canvassed Sanders, 1871. J WELLAND. • 49 Galbraith and Pew, and no others. I paid and promised no money. I said to these three men, if there was any money forthcoming they would get their share of it. Mr. Cowan met me and said if I could do anything with these parties and get them to vote, it would be all right. I said to Mr. Cowan and Mr. Bann that if stamps were not used the election would go wrong. Mr. Bann and Mr. Cowan said that Mr. Currie would not spend a cent. The way I came to offer Galbraith money was, he said he guessed he could not vote as the other side had promised him $20. I told him to come along and it would be all right. The persons named voted for Currie. V/illiam 0. Cowan, recalled : Eddy met me on the street and told me of the three men ; he said they could be got. I merely told Eddy that he might tell the three men mentioned by him that if they would vote they should have money if we got any money. I did this on my own behalf. James Munro : I live at Thorold, and voted for Mr. Currie. I was a member of the convention which brought out Mr. Currie. There wer^ evening meetings at my store of the friends of Mr. Currie, with a view to promote his election. Mr. Cowan was at these meetings. I think it very likely something was said about expenses. There was no expenditure of money to my knowledge. I saw Mr. Currrie at Thorold at a public meeting in the drill shed. I canvassed a little. I don't think there were more than two or three meetings at my store. I stood at the poll at Thorold ; I had no authority from Mr. Currie. Cross-examined : 1 never saw Mr. Currie from the time of the convention meeting until the nomination. There was a resolution of the convention pledging the member^ of it to support Mr. Currie. After the examination of other witnesses, Mr. Cameron stated that the evidence he had to offer would add nothing to what had already been given. With the exception of the evidence of Neelon and Eddy, there was nothing to affect the election. The questions 4 50 PROVINCIAL ELECTIONS. [A.D. to be considered were whether agency had been proved, and secondly, whether the acts of the supposed agents had been such as would avoid the election. He thought it would be fair and proper that the petition should be proceeded with no further. The Vice-Chancellor. — " That amounts to withdraw- ing the petition, and I see by the Act I have jurisdiction to allow that." In giving judgment, the learned Judge said there had been no sufficient proof of agency, and re- ferred to the Westminster case in England (1 O'M. & H., 89), and to the dictum of the Judge who tried the case, to the etfect that some recognition by the candidate of a voluntary agent's services must be proved. He held that here agency had not been proved. The treating by Neelon he held did not come within the Act ; it was evidently done in compliance with a custom prevalent in the country when friends meet. There must be, in cases under the Election Law, a corrupt intent shown in order to affect the election. One glass of liquor, as had been said in England, given with a view of influencing a vote, would avoid the election. The petition was dismissed, and, by consent of the respondent, without costs, as he had subpoenaed no witnesses. (5 Journcd Legis. Assem., 1871-2, p. 12.) NORTH SIMCOE. Before Mr. Yice-Chancellor Strong. Barrib, 16th October, 1871. Jonathan Sissons, Petitioner, v. William D. Ardagh, Bespondent. Hiring Bailway Train to convey Voters to the Election — Agency — Hecrimmatory Qdse. Held, that the hiring by an agent of the respondent of a rail>vay train to convey voters to and from places alons the line of railway where they could vote, was a payment of the travelling expenses of voters in going to and from the election, within the meaning of sec. 71 of 32 Vic, o. 21, and was a corrupt practice, and avoided the election. 1871.J NORTH SIMCOE. 51 "Where a charge of corrupt practices by way of a recriminatory case is alleged by a respondent against a petitioner, it may be reserved until the conclusion of the petitioner's case. The petition contained the usual allegations of bribery and corrupt practices, and the hiring of teams and of a railway train, to convey voters to and from the election. Mr. Bethune and Mr. J. K. Kerr, for petitioner. Mr. ly Alton McCarthy for respondent. Counsel for the respondent objected that petitioner was disqualified on the ground of bribery, and produced a notice served on the petitioner, calling upon him to ap- pear, in order that evidence might be given to prove him guilty of bribery. The Vige-Chancellor said he would reserve the ques- tion until the conclusion of the petitioner's case. Evidence of the payment of travelling expenses of voters going to and from the election was as follows : William Davis Ardagh, Respondent : "I was a candidate at the last election for North Simcoe. I knew that a special train on the Northern Eailway had been hired to bring voters in my interest and of the other can- didates, down the line of railway. A share of the expense of this train was paid by my partner, John Ardagh. This may have been charged to me. The amount was $200 or $180. I suppose my partner expected that I should pay it. The agreement for this train was made between Mr. McCarthy or Mr. John Ardagh, on my be- half, Mr. Morrison, for Mr. Lount, and Mr. Thomp- son, for Mr. Cook. I consider it optional with myself whether I shall repay the amount incurred for this train or not. I am satisfied the election was not in any way affected by this train. I have not yet determined whether I will repay my partner what he advanced on account of the election or not. There was a committee for my elec- tion, as I knew at the time, at Barrie. Mr. DAlton Mc- Carthy was the chairman of this committee. Mr. John 52 PEOVIJfCIAL ELECTIONS. [A.D. Ardagh was, I knew, taking an interest in my election. He went out and held one or two meetings on my behalf." The Vice-Chancellor, on this evidence, held that the election was void, on the ground that persons acting on behalf of the respondent had paid the travelling ex- penses of divers electors in going to and returning from the election. Costs were ordered to be paid by respondent, so far as the same related to the avoidance of the election. (5 Journal Legis. Assem., 1871-2, p. 12.) SOUTH GEEY. Before Me. Vice-Chancellor Mowat. Owen Sound, IZ to 14 September ; 7 to 8 November, 1871. Alexander Hunter, Petitioner, v. Abram William Lauder, Respondent. Controverted Elections Acts — Adjournment — Power of Judge to Change Place of Hearing — Evidence of Bribery — Responsihility for Acts of Agents and Sub-agents — Payment of Expenses of Voters — Treating — Destroying Election Accounts — Costs. When a Kule of Court has been issued under the Controverted Elections Act, appointing a place for the trial not within the constituency the election for which is in question, the Judge by whom the petition is being tried, has no power to adjourn, for the further hearing of the cause, from the place named in the Rule of Court to "■ place within such constituency. Reasonable refreshments furnished bond fide to committees promoting the election are not illegal. Where a charge of bribery is only the unaccepted offer of a bribe, the evidence must be more exact than that required -to prove a bribe actually given or accepted. The respondent entrusted about |700 to an agent for election purposes without having supervised the expenditure. Held, that this did not make him personally a party within 34 Vic. , cap. 3, sec. 46, to every illegal application of the money by the agent, or by those who received money from him. But if a very excessive sum had been so entrusted to the agent, the presumption of a corrupt purpose might have been reasonable. When a candidate puts money into the hands of his agent, and exercises no supervision over the. way in which the agent is spending. that money, but accredits and trusts him, and leaves him the power of spending the money, although he may have given directions that none of the money should be improperly spent, there is such an agency established that the candidate is liable to the fullest extent not only for what that agent may do, but also for what all those whom that agent employs may do. 1871.] SOUTH GREY. 53 The payment of a voter's expenses in going to the poll is illegal, as such, and a corrupt practice, even though the payment may not have been intended as a bribe. The distribution of spirituous liquor on the polling day, with the object of promoting the election of a candidate, will make his election void. When all the accounts and records of an election are intentionally de- stroyed by the respondent's agent, even if the case be stripped of all other circumstances, the strongest conclusions will be drawn against the respondent, and every presumption will be made against the legality of the acts concealed by such conduct. Where bribery by an agent is proved, costs follow the event, even though personal charges made against the respondent have not been proved, there having been no additional expense occasioned to the respondent by such personal charges. The petition contained the usual charges of corrupt practices. Mr. J. K. Kerr for the petitioner. The Respondent in person. By a rule of Court the case was tried at Owen Sound, a place not within the electoral division. Upon an ad- journment the question was raised whether the presiding judge could adjourn from Owen Sound to a place within the electoral division, for the further hearing of the case. The Vice-Chancellor held that he had no power to grant such an adjournment, as by so doing he would in eifect override a rule of Court. Offers of bribes were said to have been made to one Alexander McKeehnie and one James Black, who were ex- amined as witnesses. The evidence of both was contra- dicted by Mr. Lauder on his own oath. McKeehnie had actively supported the respondent at the previous election for the riding, and Mr. Lauder seemed to have expected a like support from him at the election now in question. In this expectation Mr. Lauder (according to McKechnie's evidence) asked him to "come into our committee to- night," and added, "we'll furnish you with plenty of means." McKeehnie did not go to the committee, and did. not give Mr. Lauder his support. He deposed that he considered Mr. Lauder's observation " in the light of brib- ing" him. 54 PROVINCIAL ELECTIONS. [A.D. James Black deposed that he had heard that Mr. Lauder had a large sum of money to spend on the election ; that he applied to Mr. Lauder for some of it ; that he oifered to WQik, if paid ; and that he (the witness) said that money would '' do good " in his section ; but he also deposed that Mr. Lauder would not give him any money; said it would be illegal to do so, and made him no offer. The witness added that Mr. Lauder told him to " go to Perry." He stated that he did go to Mr. Perry, and that Mr. Perry said he had no money. And it further appeared that the witness in fact got no money either from Mr. Lauder or from Mr. Perry, and that he in consequence voted for Mr. McFayden, the opposing candidate. As to the treating, it was proved that on various occasions Mr. Lauder expressly forbade all treating as well as everything else of an illegal kind being done to promote his election. But it appeared that on the nomination day, at an election meeting held after the nomination, in the Orange Hall in the village of Durham, refreshments were brought into the room by one Woodland, and were partaken of by the persons present. Mr. Lauder deposed that he knew nothing of these refreshments before they were brought in ; that he told the parties bringing them in to be careful, and that they might be " coming too near the law." He further deposed that he did not pay for these refreshments, and that no account for them had been rendered to him. There was no evidence to the contrary of what Mr. Lauder thus deposed. There was, however, evidence that he did pay for refreshments pro- vided for various committees at their election meetings. The central committee at Durham consisted of about nine persons ; the local committees did not seem to have respectively comprised so many. There was evidence, also, that on some other occasions there was a general treating of electors at the close of public meetings of electors which Mr. Lauder had been addressing, and while he was in the house where the treating took place. There was no other evidence of knowledge or consent. One 1871.] SOUTH GREY. 55 Thomas Smith swore that after a meeting held at a tavern in Egremont, which meeting had been addressed by Mr. Lauder, he had given a treat for which he paid f 5 ; that some time after the treat he received $20 from Mr. Lauder ; that he had paid the $5 at the time the treat was given, and before he received the $20 ; and that the treat was given on his own responsibility, and Mr. Lauder was no party to it ; that Mr. Lauder gave the $20 to pay for the use of the room in which the meeting was held, for his (Mr. Lauder's) own personal expenses at the tavern, vand for refreshments which had been furnished for a committee which held a meeting at the tavern that even- ing. It was not shown that Mr. Lauder was aware that Smith had treated when he gave him the $20. Smith also swore that he had expended more than $20 for re- freshments for committee-men, for feed for their horses, etc., in addition to the $5 paid for the treat. The corrupt practices said to have been committed by Mr. Lauder's agents were chiefly these : 1, bribery ; 2, treating meetings of electors; and 3, giving spirituous liquor during the polling day. In regard to bribery, the principal instances proved were committed by one George Privat. Privat was the principal canvasser for Mr. Lauder in that part of the township of Normanby called the " Old Survey." Privat was called on by one William Scott and one Charles Grant, and was either asked to go on the committee (for securing Mr. Lauder's election), or was told by Spott that he had been put on the committee. The former was his own re- collection, the latter was Grant's recollection of what had occurred. He sent word to Durham by these persons " that it would take $100 to work up the Old Survey."- In reply, he was told that so much could not be given. He was told also to go to one Meddaugh, whom he knew. He went to Meddaugh accordingly, and at Meddaugh 's instance Mr. Perry gave him $50. Privat " was not told what he was to do with the money," but he received it " to spend on the election." He went into the canvass. 56 PROVINCIAL ELECTIONS. [A.D. and in the course of it he committed the alleged acts of bribery. The alleged bribery was this : it appeared from his own evidence that after conversing with certain named voters severally, a day or two before the election, he dropped money for them on the ground, and then walked away ; that in each case he meant this money to be picked up by the voter ; that his chief or only purpose in this was to secure the voter's support for Mr. Lauder ; and that he dropped the money instead of handing it to the voter, be- cause he imagined that this indirect mode would enable the voter, if sworn, to say that he had received no money. Meddaugh, to whom he referred Privat as to money, was another member of the central committee. Perry, who gave Privat the money, was a distant relation of Mr. Lauder's ; he was the secretary of the central committee ; kept all accounts ; was the treasurer for the contest, and received from Mr. Lauder, and disbursed most of the funds which Mr. Lauder from time to time supplied for the pur- poses of the election. Mr. Lauder stated in his evidence that he had " refused to have anything to do with com- mittees " The only instructions which he appeared to have given with reference to the expenditure of the money were those implied in his forbidding any treating, hiring of teams, or paying for votes. Two of these voters were examined, and proved the finding of the money which Privat had dropped. Privat stated that he had some talk with the voters referred to about their doing some plough- ing for him. l^The Vice-Chancelloe considered that if this part of his evidence was correct, the suggestion about ploughing was, like the dropping of the money, a colorable pretence by which it was intended to evade the law.] William Scott, who solicited Privat to take part in the active work of the election, was a member of the central committee. He " went round to the different places and brought in returns, sometimes written and sometimes verbal, of how the other committees were getting on." i87l.] SOUTH GEEY. 57 Mr. Ferry paid out about $1,700 for the pu];poses of the ■election, and after the election he claimed credit for that amount from Mr. Lauder. Mr. Lauder allowed and settled $625 only, but objected to the balance as unnecessarily- spent (not, he said, as illegally spent), and had not yet paid it. Perry swore that he, notwithstanding, expected to be paid, though he had not yet received any promise to that effect. It appeared that the letters and accounts with reference to the election had been destroyed. Mr. Lauder stated ihat he had destroyed all the letters written to him, and Jiad kept no copies of the letters written by him, in which reference was made to money matters ; and Perry swore that he had destroyed all papers connected with the elec- tion about ten days after it took place, including a list of the members of the central committee, a record of their proceedings, and an account of moneys expended. After the argument of Counsel on the personal charges of bribery against the respondent, the following judgment was delivered : MowAT, V.-C. — I am satisfied that no case has been made out against Mr. Lauder personally. With regard to the Orange Hall meeting, the weight of ■evidence goes to show that it was a meeting of committees ; and besides, no refreshments for the meeting were ordered or furnished by Mr. Lauder, or paid for, or promised to be paid for, by him. I do not think that reasonable refresh- ments furnished hondfide to committees are illegal. As to the alleged treating at Normanby, Smith's evi- dence is unsatisfactory, but there is no ground for believ- ing that Mr. Lauder knew that Smith had treated when he gave him the money. The case . of McKechnie, as stated by himself, is not sufficient to prove Mr. Lauder guilty. McKechnie states that Mr. Lauder said, " come over to our committee to- night, and you shall be furnished with plenty of means," 58 PROVINCIAL ELECTIONS. [A.D. and McKecRnie swears that he considered this an offer of a bribe to him. He did not go to the meeting, and no other conversation on this point took place. Now, where the charge is only the unaccepted offer of a bribe, the evidence must be more exact than is required to prove a bribe actually given or accepted. A very little difference in the language employed might make a great difference in the intention of the supposed offer. Where a conversa- tion is not followed by the act spoken of, we are not, unnecessarily, to presume a bad intention. In an election, means are required for legitimate purposes ; and I am not at liberty to infer that Mr. Lauder meant " I shall furnish you with plenty of means for illegal purposes." The case of Black is weaker than that of McKechnie. He says : " I heard Mr. Lauder had a large amount of money for election purposes, and I asked him for some. He refused it, and said it was illegal, and told me to go to Perry." Black applied to Perry, and Perry neither gave him money nor the promise of any. It would be preposterous to say judicially on this evidence that Mr. Lauder or Mr. Perry offered or promised to give the money which they both refused to give. Both McKechnie and Black voted against Mr. Lauder. Next it is said that Mr Lauder entrusted large sums to Perry ; that he should have supervised the expenditure, and that his failure to do so makes him personally a party within section 46 of the Act of 1871 (34 Vic, c. 3) to every illegal application of money by Perry, or by those who received money from Perry. The sum which Mr. Lauder gave was under $700 ; there is no evidence before me that that sum was an excessive one for legitimate expenses; and a certain amount of discretion must be placed in a candidate's agents. If he had put $7,000 into Perry's hands, the argument of a corrupt purpose might have been reasonable. The facts do not suggest to my mind any idea that Mr. Lauder intended his money to be employed illegally. 1871.] SOUTH GEEY. 59 For these reasons I think the personal charges not made out. Counsel then addressed the Court as to bribery by- agents, after which judgment was given as follows : MowAT, V. C. — I may dispose of this case on the ground of the illegality of Privat's acts. He was asked by Scott to assist in the canvass, and was referred to Durham for money. He went there, and got the money from Perry, through the intervention of Meddaugh. These three per- sons were the members of, or connected with, the com- mittee at Durham. Mr. Lauder argues that it does not appear that Perry paid the money with the concurrence of the committee ; but there is no evidence that Mr. Lauder had said or done anything to create a necessity for this concurrence, and there is evidence to the contrary. Perry received no instructions as to the mode of the dis- tribution of the money. That was left to his discretion > and Mr. Lauder in his evidence distinctly repudiated all committees, and stated that he had made his payments through Perry. But even if Perry had been directed to carry out the instructions of the committee, and had dis- obeyed, he being the treasurer for the election, the secre- tary of the committee, and the confidential agent of the candidate, his acts would still bind the candidate. This is laid down in the Staleyiridge case (1 O'M. & H., 69). There Mr.. Justice Willes said : " I have already in the Bewdley case {lb. 18) had occasion to decide this much. There it appeared that the sitting member had put a sum of money into the hands of his agent, and that he exer- cised no supervision over the way in which that agent was spending that money ; that he had given him direc- tions, and I thought really intended, that none of that money should be improperly spent ; but that he had accredited and trusted his agent, and left him the power of spending the money, and I came to the conclusion upon that, that there was such an agency established as that the 60 PROVINCIAL ELECTIONS. [A.D. sitting member was responsible to the fullest extent, not only for what that agent might do, but for all the people whom that agent employed might do: in short, making that agent, as far as that matter was concerned, himself, and being responsible for his acts. I see no reason to doubt at all that that is perfectly correct." This is no new law : it has been the rule ever since there was a record of the law of Parliament ; it is founded on reason, and if another rule were adopted, a candidate might give his agent money, take the benefit of the ex- penditure, and afterwards say that he did not authorize the mode in which the money had been spent, claim freedom from responsibility in respect of the use made of it, and thus evade the whole law against corrupt practices. I cannot hold otherwise in this instance (in which there is no dispute as to the facts) than that Mr. Lauder is re- sponsible for the acts of Privat. As to these acts : Privat talked to certain voters about the election, and dropped the money for them, so (as he «xpj.ains it) that they might be able to swear that they had received no money. To constitute the offence, it is not necessary that voters should accept an offered bribe. The two voters called confirm all that was necessary in Privat's ■evidence to make out the charge against him. His pur- pose was to secure the votes by means of this money. I have no alternative but to hold that Privat has been guilty of such acts as agent as render the election void. So far the case is free from doubt. As to some other points, it may be proper that, for the information of parties concerned, I should intimate the impression I have formed. As to Ray, I do not consider the $2 given to him to have been a bribe, as distinguished from a payment for the expenses of himself and the other voters who were going with him to the polls ; but the payment would be illegal either way, according to the decision of Chief Justice Hichards at Picton, (a) and of my brother Strong at Barrie. (b). (a) Prince Edward case, ante p'. 46. ^ (b) North Simcoe case, ante p. 50. 1871.] SOUTH GREY. 61 As to the treating by agents of meetings of electors, in order to promote the election, if the validity of the elec- tion had in my view depended on that question, I would, in consequence of the decision in the Glengarry case, (a) have reserved the point for the opinion of the Court of Queen's Bench. If it had been necessary for me to decide as to the effect of distributing liquor on the polling day, I do not at pre- sent see how I could avoid holding that the object was. the promotion of the election of Mr. Lauder, and that the election was void on that ground. With regard to the destruction of the accounts and papers, I consider the matter a very grave one. If the- case were stripped of all other circumstances but the. destruction of the records of the committee and the accounts, by a person holding the position of Mr. Perry in the election, I incline at present to think that it would be my duty to draw the strongest possible conclusions; against the respondent ; and that I should make every presumption against the legality of the acts which were- concealed by such conduct. The only safe course for an honest candidate to pursue is to have all papers preserved,, and to be able to show how all the money was expended. For such a candidate, or any agent of his, to be content, with saying he does not know how the money is spent, is. very unwise. But I pronounce no decision on these points, as the con- duct of Privat has rendered it unnecessary. On the ground of Privat's acts I declare the election void, and I shall report that it was not established to my satisfaction that corrupt acts were committed by or with the knowledge of Mr. Lauder personally. The English practice is that costs follow the event where bribery by an agent is proved, and I follow that practicc The Respondent then urged that there should be an apportionment of the costs, as according to the judgment (a) Ante p. 8. 62 PROVINCIAL ELECTIONS. [A.D. of the Court, the petitioner had been successful on some only of the issues. The Vice-Chancelloe said that there did not appear to have been any increase of the costs on account of the issues on which the petitioner had failed; that his observations as to the destruction of papers were to be borne in mind, and that, under all the circumstances, he did not think there should be any apportionment. (5 Journal Legis. Assem-., 1871-2, p. 13.) NORTH YORK. Before Mr. Justice Galt. Newmarket, 14th to nth November, 1871. Nelson Gorham et al., Petitioners, v. Alfred -Botjltbee, Eespondent. "Illegal and Prohibited Acts." — Treating — Selling Liquor on Polling Day — Agency — Gosts — Special Case. Held, 1. — That " illegal and prohibited acts relatirfg to elections," in the definition of corrupt practices in the Controverted Elections Act, 1871, were confined to bribery, hiring of teams, and undue influence, as defined by sees. 67 to 74 of the Election Act of 1868. 2. — That violations of section 61 (treating at meetings) and section 66 (giving or selling liquor at taverns on polling day) are not corrupt practices within the meaning of the said Acts, unless committed in order to influence voters at the election complained of. Evidence was given to show that certain parties had attended meetings with the respondent and canvassed for him, and had performed other acts of alleged agency, as set out in the evidence. Held, that 'the acts of alleged agency relied on in the evidence were not sufiicient to constitute such parties the agents of the respondent. The petition nevertheless was dismissed without costs. A special case may be reserved for the opinion of the Court of Queen's Bench only when the Judge presiding at the election trial has a serious doubt as to what the law is ; or believed that the Court might enter- tain a different opinion from that of the election judge. The petition was in the usual form as to corrupt prac- tices, and claimed the seat for the defeated candidate. The votes at the election were : For the respondent, 1,306 ; for the Hon. John McMurrich, 1,301 ; majority for re- spondent, 5. 1871.] NOKTH YORK. 63 Mr. K. Mackenzie., Q. C, Mr. Bethune, and Mr. MoMur- rich, for petitioner. Br. Mc Michael and Mr. D'Arcy Boulton, for respondent. The evidence as to agency and treating was as follows : David C. Burke : I live- at Newmarket ; am a partner of respondent. I. took part in the last election for Mr. Boultbee ; I canvassed for him. I went with him when he was holding lAeetings ; I was not a member of his com- mittee. I know a place called Gum Swamp; I went through there the night before the election. David Wil- loughby went with me. It was dark. We met parties on the road ; they all said they were going to vote for Boultbee. I had some liquor with me, a few small bottles ; I bought them at Huggard's hotel ; I got it to treat my friends. I kf t them at the mill ; I think there was a dozen when I started. I stopped at Bellhaven ; it was a polling place, I got there about 11 or 12 p.in. Mr. Willoughby was with me; The bottles were left in the buggy ; they were in an open box. I took the liquor to drink myself, and to treat my friends. The bottles were taken from the buggy ; I missed them next day. I did not treat any person ; don't think I made any inquiry about the whiskey. Archibald Mc Venn : I was bar-keeper in Hewett's . hotel in March last. I remember the meeting of the 18th March. I heard it was a meeting of Boultbee's friends. Saw Mr. Hogaboom there. I cannot say what they were talking about. I charged $50 for the liquor; that was the value of the liquor. I guessed at it. George Hoga- boom ordered it. I did not tell him what I charged. I cannot say how often I served them with liquor. They were mostly village people ; some of them got a little drunk. I chargecl 5 cents a glass. I charged $10 for the room. I did not try to keep an account of the glasses. I think there were $40 worth of liquor drank. It was whiskey and beer and cigars ; there was drinking at the bar besides, which was not included. Mr. Hogaboom did not say who would pay for the liquor. I charged it to 64 PROVINCIAL ELECTIONS. [A.D.. him because he ordered it. Hogaboom did not engage the room. John Hartray : I reside in Newmarket. I voted at the last election for Mr. Boultbee. I was at the meeting on the 18th March. I do not know what the meeting was. for. I went to hear the result of the canvass. It was a committee meeting. They were counting up the votes of the town in favor of Boultbee. I had a glass of beer in the room. The meeting was suggested by Mr. Burke and Mr. Hogaboom. There was a number of Boultbee's friends, there. When I arrived at the meeting there was quite a number there. James Hackett, M.D. : I am a voter; I voted for Mr. Boult- bee at the last election. I canvassed for Mr. Boultbee. There was no regular committee to my knowledge. I occasionally got voters together to promote the election on my own responsibility. David Willoughby was, I suppose, one of Boultbee's committee in North Gwillim- bury. I saw a list of voters in Mr. Sheppard's possession, but I think Mr. Willoughby showed it to me. Gross-examined : I do not know that Mr. Boultbee ap- pointed any person to act as a committee-man or canvasser. I was an independent canvasser. Mr. Boultbee knew I was canvassing. David Glover : I saw Mr. Boultbee during the canvass- I supported him at the former election. I canvassed for him. George Hamilton and I were appointed a committee to canvass Gum Swamp school section; we were appointed upon the committee at the meeting at Bellhaven. David Willoughby was, I think, chairman of the committee; John Anderson was secretary. There was a large meeting ; perhaps 30 or 40 were present. There was nothing to drink. There was another meeting at which I was not present. David S-prague : There was a number of the people of North Gwillimbury met ; I was one. David Willoughby and others were there. We supported Mr. Boultbee. There were a number of other neighbors there. Mr^ 1871.] NORTH YORK. 65 Willoughby was chairman. There was no treasurer and no money. Mr Boultbee had a meeting at Bellhaven before the nomination. Cross-examined : Mr. Boultbee had nothing to do with calling the first meeting. It was called for the purpose of ascertaining the feelings of the people. James Cheney : I live in King. I voted for Mr. Boult- bee. I saw him in Newmarket after he became a candi- date. I attended a meeting at the Royal hotel. There were a good many persons there. I suppose 20 or 30 per- sons .were present. We met to arrange about the election. Mr. Boultbee was present. Persons, were appointed 'to canvass. I was to canvass on the south side of the town- ship. Mr. Boultbee was in and out. I spoke to him, not about the election. Mr. Morgan, Mr. Boultbee 's partner, was there. Edward Morgan: lam partner with Mr. Boultbee. The object of the meeting at the Royal hotel was to ascertain the views of the electors ; Hogaboom was there, but I am not positive ; Willoughby was there. I live at the hotel. I was in and out very often. I was not taking an interest in the election, except a natural desire to see Mr. Boult- bee elected. My going in and out had nothing to do with the election. I did not go to the meeting to see after the election ; it was simply curiosity. I did not know there was to be a meeting. I went to the hotel and I saw some enter, and I was told they were favorable to Mr. Boultbee. They were talking of what they had done. It seemed a jollification. I think I had some beer. I made a few remarks. I acted as scrutineer at one of the polls. Mr. Boultbee requested me to go there. I was at Street's tavern. I gave two or three persons there some liquor. I did not know them to be electors. I told the landlord it was illegal for him to keep open his bar, or to give or sell liquor, on election day. I will not swear I did not go be- hind the bar and take the liquor. I either did that or called for it. I was cold after my long drive. I think it was after this I was consulted. 5 66 PROVINCIAL ELECTIONS. [A.D. George Hogaboom: I live at Newmarket. I was anxious for Mr. Boultbee's election. I asked some men for their votes. I do not think I asked many. I went with Mr. Boultbee to Aurora. I think he had a meeting there. I spoke to people about the election. The meeting was at the Town Hall. There was a tavern about a quarter of a mile distant ; we put up our horse there. There were 50 or 60 persons present. There was no drink furnished there. I attended the meeting at Hewett's hotel, New- market ; I ordered one drink. T told the bartender to bring in a drink for the crowd. I had no partictilar ob- ject. There were probably 50 there. There were 5 or 6 drinks ordered ; I rather think Mr. Morgan ordered a drink. I did not engage the room. The meeting lasted about two hours ; we were talking about the election. I was present at the meeting at the Royal hotel ; I took no part in it. I think I talked to a good many about the election. I knew that some of them were leading sup- porters of Mr. Boultbee. I did not act as scrutineer. Cross-examined : I was not a member of any committee. I was not appointed in any way as an agent. I knew nothing of the meeting at Hewett's until I got there. Mr. Boultbee was not present. I was the first person who ordered liquor there. I said that all who were nqt Boult- bee men were requested to leave the room, that it was a meeting of the friends of Mr. Boultbee alone. We then began to discuss the prospects of the election. Patrick McCutcheon : I reside in Vaughan. I voted at Nobleton. I saw Mr. Morgan there before the poU was open at Street's tavern. Mr. Street would not sell any- thing. Mr. Morgan said he would run the machine any- way. He went in behind the bar, took down the decanters, and treated 3 or 4 persons. He paid for it. He acted as scrutineer afterwards for Mr. Boultbee. David Willoughhy : I live in North Gwillimbury. I was at a meeting at Huggard's. I made up my mind to support Mr. Boultbee. There were probably 30 persons there; Mr. Boultbee was there. There was no section 1871.J NORTH YORK. 67 given me to canvass. I did canvass ; I went through about half the township. I only wanted to know how they were going to vote. T did not keep any list ; I made no report. I don't know that I was ever on a com- mittee. There was some of us met at Bellhaven ; I was appointed chairman, and Mr. Anderson secretary. There was a conversation among ourselves to ascertain how many would support Mr. Boultbee. I was, during each day for about four days, making the tour of the township. I went principally alone ; the last day I went with Mr. Burke. I got into the buggy and went with him. He was calling on the people about the election on behalf of Mr. Boultbee. I was at the poll at Bellhaven. I think Mr. Burke was scrutineer. He had liquor with him. There may have been a dozen ; I saw about half a dozen. I saw him give some of it to others. I did not see him give any of it on the day of the election. I took a little myself on the polling day. {The witness here claimed a certificate under the statute). I gave Mr. John Morton some, also John Ryner ; it was after they had voted. I gave liquor to four in all. I do not know what became of the other bottles. I attended a meeting at Bellhaven and E,avens- hoe; Mr. Boultbee was present; it was held in a hall adjoining the tavern. There was a drink after the meeting. Alfred Boultbee, Respondent : I did not appoint any agents in this election. I had no committee appointed. David Burke was not employed by me in any way to for- ward the election. I remember him driving me through King and across to Whitchurch to address meetings I had called. I believe I stated to every meeting that I would have no agents. I did not go round canvassing. I ap- pointed meetings and addressed them. I was present at. the meeting at Huggard's. I had little or no organization for carrying on my election. I asked Mr. Morgan to go to Nobleton. I think there were 3 or 4 who offered to act as scrutineers ; they are the only persons I appointed. I appointed no persons in North Gwillimbury. 68 PROVINCIAL ELECTIONS. [A.D. Cross-examined : I may have seen drinking at some of the meetings ; I furnished none ; I did not treat. The meeting at Huggard's was, I think, called at my sugges- tion to see what my prospects were at the election. They were persons who were friendly to me. If those persons had not agreed to support me I do not think I should have come out ; I relied on their support as one of the means by which I could carry my election. I believed what Burke could do he would do. I think Willoughby was at Huggard's. After the argument of Counsel, the following judgment was delivered : Galt, J. — I would not have the slightest objection to avoid the responsibility of sending this case to the Queen's Bench ; but in that case I ought to do so only because 1 had a serious doubt as to what the law is; and I ought to be satisfied also that the Court would enter- tain a different opinion from mine ; and in neither view can I hesitate to give judgment at present. The case has resolved itself into . two points : first, the effect of the meeting at Hewitt's ; and second, the treating on the polling day, and whether there was such a violation of the 61st and 66th sections respectively as would render the election void, (a) I must say I have a strong opinion that the illegal and prohibited acts, referred to in the definition of corrupt practices in the interpretation clause, in section 3 of the Controverted Elections Act, 34 Vic, c. 3, are confined to sections 67 to 74 inclusive. (6) The fact that undue influence and carrying voters were not suffi- cient to void the election under the previous Acts, enables me to find that these sections would exactly cover the (cf) 32 Vic, b. 21, — s. 61 : No drink or other entertainment to be furnished to any meeting of electors assembled for the purpose of promoting the election ; s. 66, all hotels, taverns, etc., to be closed on the polling day, and no spirituous or fermented drinks to be sold or given to any person on such day, within the electoral district. (See B. S. 0., c. 10, ss. 151, 167). (4) 32 Vic, 0. 21,— ss. 67 and 68 define bribery ; s. 69, election of candidate guilty of bribery void ; s. 70, bribed votes void ; s. 71, hiring of teams to convey electors to the poll illegal ; s. 72, undue influence defined ; a. 73, persons must give evidence, though The answers may criminate them ; s. 74, contracts arising out of the elections void. (See R. S. C, c 10, ss. 149, 160, 164, 166, 168, 183, 170, 176). 1871.] NORTH YOEK. 69 definition. It would be impossible to hold that every violation of the Act would be a corrupt practice. The 61st section is perfectly intelligible, when read with the heading " keeping the peace and good order at elections." Bearing in mind the object that heading points out, we can easily tell why the word " agent" is omitted : -the evil is the same whether the ca ididate, or " any other person" gives the entertainment which has the effect of breaking the peace or good order at elections. The meeting at Hewitt's was a violation of that clause, and was called to promote the election of Mr. Boultbee ; I don't say who called it : according to law it was an illegal ac.t to furnish the entertainment. So with the 66th section ; every tavern, the statute says, shall be closed, and this section is con- sistent also' with the view I have expressed as to the 61st section. It is impossible to say that Morgan's treating was a corrupt practice : he was cold, and took a drink and gave it to his friends. If I held this to be a corrupt act, I would have to declare him incapable of holding office for 8 years. The words "illegal and prohibited acts " apply from the sections from 67 to 74, and to those only. But I do not wish to be misunderstood. If refresh- ments be given to influence voters, it would be bribery. It is of no consequence what shape the bribery takes. The election in that case would be void, not for a vio- lation of the 61st section, but because it came within the range of sections 67 to 74. So as to the 66th section. If there was a distribution of a large quantity of liquor, — which is not suggested here, — the election might be declared void. I may mention that thfe Judges have con- sidered this section, and they were unanimous that no violation of it would avoid the election. The majority of the rota judges was of the opinion, I believe, that no vio- lation of sections 57 to 66 would void the election. There has been some division of opinion, I believe, as to the 61st section: none as to the 66th. If the candidate gave a drink out of a flask on election day it would not avoid the election. Private persons like Morgan and Willoughby 70 PROVINCIAL ELECTIONS. [A.D. are entitled to my clear opinion that they have not been guilty of corrupt practices, according to the views I enter- tain of the statute. I cannot find Willoughby, Morgan, or Hogaboom to be agents of the respondent, as I would have to report if I reserved the case for the Queen's Bench. [The learned Judge then reviewed the evidence as to the agency of these parties.] On these and on public grounds also I think I ought not to reserve a case for the Queen's Bench. After a short adjournment, counsel for the petitioners stated they would abandon the further prosecution of the petition. Galt, J. — I think the proceeding a wise one, and the best for all parties. I therefore dismiss the petition; each party to pay his own costs. (5 Journal Legis. Assem., 1871-2, .p. 7.) EAST TOKONTO. JbSEFORE Chief Justice Richards. Toronto, 2nd to 6th September ; S7th November, 1871 . Nicholas Rennick, Petitioner, v. Matthew Crooks Cameron, Hespondent. Agents — Accounts of Expenditure by — Excessive Expenditure — Personal Ex- penses ofOandidate — Payment to Canvassers — Refreshments — Treating — Bribery — Evidence as to Offers to Bribe — Cumulative Evidence against an Agent — Costs. A candidate in good faith intended that his election should be conducted in accordance both with the letter and the spirit of the law ; and he subscribed and paid no money, except for printing. Money, however, was given by friends of the candidate to different persons for election purposes, who kept no accounts or vouchers of what they paid. Held, that bribery would not be inferred as against the candidate, who neither knew nor desired such a state of things, from the omission of these subordinate agents to keep an account of their expenditure, especially as the law was new, and contained no provision similar to the Imperial statute, which requires a detailed statement of expendi- ture to be furnished to the returning officer. But it is always more satisfactory to have the expenditure shown by proper vouchers ; and if money is paid to voters for distributing cards, or for teams, or for 1871.] EAST TORONTO. 71 refreshments, these will be open to attack, and judges will be less in- clined, as the law becomes known, to take a favorable view of conduct that may bear two constructions, one favorable to the candidate and the other unfavorable . The candidate is. not restricted to his purely personal expenses, but may (if there is no intent thereby to influence voters, or to induce others to procure his return) hire rooms for comniittees and meetings, and employ men to act as canvassers, to distribute cards and placards, and to perform similar services in connection with the election. The plain and reasonable meaning of the statute is, that when tlie pro- hibited tilings are done in order to induce another to procure, or to endeavor to procure, the return of any person to serve in Parliament, or the vote of any voter at any election, the person so doing is guilty of bribery. The difierence between the Imperial gtatixte (17 and 18 Vic, c. 102, s. 2, subs. 3, proviso) and the Ontario statute (32 Vic. , c. 21, s. 67, subs. 3, proviso), as to "legal expenses" in elections, pointed out. The friends of the candidate formed themselves into committees, and some of them voluntarily distributed cards and canvassed different localities, with books containing lists of voters, noting certain parti- culars as to promises, etc. These canvassers often met voters in public houses, and while there, according to custom treated those whom they found there, and thus spent their money as well as their time. On this being represented to those who had charge of the money for elec- tion expenses, the latter, in several cases, reimbursed the canvassers. Held, 1. That these general payments, if not exceeding what would be paid to a person for working the same time in other employments, would not be such evidence of bribery as to set aside an election, 2. That the furnishing of refreshment to voters by an agent of a candi- date, without the knowledge or consent of the candidate and against his will,, will not be sufficient ground to set aside an election, unless done corruptly or with intent to influence voters. Where the object of an agent in treating is to gain popularity for himself, and not with any view of advancing the interest of his employers, such treating is not bribery. The total expenditure proved was |610, and the number of voters on the roll was 4, 669. Held, that the expenditure was not excessive. Where the evidence as to bribery consists of offers or proposals to bribe, the evidence should be stronger than with respect to actual bribery. Where three voters swcfre to three separate offers of bribery made to each of them separately by an agent of the respondent, which such agent swore were never made by him, Hdd, that the evidence was not sufficient to justify the setting aside of the election. The language of Martin, B., in theWigancase (1 CM. & H., 192), adopted as a general rule applicable to this case . There being no grounds for charging the respondent personally with cor- rupt practices, and the scrutiny having been abandoned, the costs of those parts of the case were ordered to be paid by the petitioner. But with respect to the other costs, though the respondent -t^as successful, the matters were proper to be inquired into in the public interest, and each party was left to pay his own costs. The petition contained the usual charges of bribery, undue influence, intimidation, and other illegal and prohi- 72 PROVINCIAL ELECTIONS. ' [A.D. bited acts and corrupt practices, and claimed that Francis H. Medcalf, the defeated candidate, had the highest number of legal votes, and should have been returned. The votes were : for the respondent, 1,232 votes ; for F. H. Medcalf, 1,112 ; majority for respondent, 120. Mr. Maclennan avd Mr. Delamere appeared for petitioner. The Respondent in person, and Dr. McMichael, for the respondent. The petitioner abandoned the charge of personal com- plicity of respondent in any of the matters charged in the third and twelfth paragraphs of the petition, but not such acts by his agents as might affect his seat ; and proposed to show a large number of votes bribed by Mr. Cameron's agents, and that undue influence was practised by said agents. The scrutiny was afterwards abandoned. On the trial of this petition evidence was given to show the expenditure of various sums of money on behalf of the respondent by his friends. It was mentioned inci- dentally that Mr. McMichael, respondent's law partner, had paid some charges for printing, and this was the only sum that was expended by the respondent himself, and as to this, it was not suggested that there was anything illegal. Any other moneys that were expended were raised by the friends of the respondent, and if any was improperly or illegally expended, it was without his knowledge and contrary to his express directions. The chairman and secretary of St. James' Ward, the most populous in the division, were examined. They ex- pressly denied the payment of any moneys for any ille- gal or improper purpose ; and the secretary (Mr. Scott), through whom all the payments were made, said they were made on cheques, and proper receipts and vouchers were taken therefor, and the same could be produced if desired. F. Warwick, the secretary of the committee of St. David's Ward, was twice examined. On his first exami- nation he stated he had prepared books from the roll ; the 1871.J EAST TORONTO. 73 books were supplied by the general committee. There were fifteen or sixteen of the committee, and they did the canvassing. He used no money ; was not promised any. He saw some money paid for cards or bills by Mr. John Carruthers, chairman of the committee of that ward ; saw money paid for posting bills ; saw one Harrington paid by Carruthers ; saw some other money paid by Carruthers for something connected with that work. Several persons were paid for carrying around cards ; some fifteen or twenty dollars were thus paid. Parties were .paid for going around to give notice of committee meetings and for carrying around cards ; saw as much as $2 given to a messenger, and as many as sixteen employed to carry around cards. Half of the number may have got nothing. Was not paid for his services. He knew very well Mr. Cameron had never been in the habit of paying for such services, and he had very little hope of ever receiving any for his; never received anything from any one for his services. Mr. Cameron visited the committee room and told him to be sure and have no money promised or paid for votes, and to be very careful and do nothing wrong. He gave up his school during the whole 'canvass, about fifteen days ; no bargain about being paid ; would not say he had no hope of being paid. He was subsequently re- called, and a paper shown him containing a list of names of about 47 persons under the heads " names," " services," $, cts. Under the head of " services" opposite most of these 47 names were entered " scrutineer," " canvasser," " scrutineer," etc. Opposite a few, " meeting scrutineer," " meeting canvasser." The largest sum opposite " scru- tineer and canvasser" was $15 opposite the name of G. Morphy. Opposite the names of four persons $10 was put, and the remainder, $3, $4, $5, $2, and as high as $7, and half-a-dozen as low as $2. One name in pencil, Mitchell, had $20 opposite it. Joseph Duggan's name was put down, " use of room for committee 12 days, 2 meetings, etc., $30." Fred. WarmoU "12 day's constant attendance at committee room from 9 to 7, making out canvass books, including 74 PROVINCIAL ELECTIONS. [A.D. payment of two meals each day, $30." There was a pencil memorandum at the bottom o£ the page, $306. If that was intended to be the addition, some claims amounting to $18 were added afterwards. The three last items in the statement would make the amount. In relation to the memorandum he stated it was in his own handwriting, that the men mentioned in the list claimed those amounts as what they ought to have. He gave it to Mr. Carruthers after the election was over, with all the other papers When he made up the paper he told them he thought there was no chance of their getting anything. The parties named came to him to put their names down. They abused him about it ; said he and Carruthers had got the money . between them. When Mr. Carruthers employed men to distribute the tickets, he told them they should not get more than a common day's work, that they should do a little for the cause without pay, as others did. When he put down their names he told them they might as well put down three times as much as it was worth ; they had been engaged with the knowledge that Mr. Cameron or Mr. Carruthers would not pay for these services. They had been so warned in his presence before they went to work. The parties named came to his house, he did not go to them. He might have seen them in the committee- room ; they must have come to him. He never saw the paper since he gave it to Carruthers until then. He spoke to Carruthers about his own claim, and Carruthers said he had nothing to do with it. A. De Grassi, the secretary of the central committee, .said parties had applied to him for pay, but they were told there was no chance of their getting any. Nineteen of the persons named on the list were called as witnesses. They almost all denied any knowledge of their names being on the list, or expecting any money, or having been promised any. Among the rest, Thomas McDonald, whose name was on the list for $5. He borrowed two sums of $5 from Carruthers, who was his father-in-law, during the election. He said he received 1871.] EAST TORONTO. 75 nothing, nor gave anything to any one to vote for Mr. Cameron. Oarruthers in his evidence said he paid Mc- Donald two dollars for distributing cards, etc. John Boddy, whose name was on the list for $5, says he never made any claim to Warwick ; but Warwick told him he had heard from Oarruthers that those who acted as scrutineers were going to get something, and his name was down for $-5. He said he was never promised any money, and did not expect anything until Warwick mentioned it. He never went for any. Joseph Duggan, whose name was on the list for $30 for use of rooms, said Oarruthers asked him what his charge was. He told him he made no claim, and he had not made any claim. John Fitzgerald, whose name was down for $10, said he got $5 from Mr. Oarruthers for distributing tickets — two dollars at one time and three dollars at another — and he was about nine days and nights canvassing and distribut- ing. He asked Oarruthers at one time if anything more was to be got ? He said he did not know anything about it. He asked Mr. Warwick how he was getting along, and he said the election was protested. Oarruthers paid him the money not for his interest but his labor. He did not promise him anything more. Louis Walker, whose name was down for $2, received $2 from Oarruthers. He and some other men undertook to canvass in a certain section, and in doing so spent money for refreshments. He told Oarruthers he could not afford to lose his time and spend money in going about. Oarruthers told him he had got. money from Mr. Gooderham to pay for printing, but nothing to give away. He told him he would pay him for his time out of his own pocket, and to go on. He gp-ve him $2, and that was all he received. The rest of those who were called whose names appeared on the list denied having authorized any claim or applica- tion being made on their behalf. They did not claim any- thing and did not expect anything. 76 PROVINCIAL ELECTIONS. ' [A.D. William Gooderham, the younger, placed in Mr. Car- ruther's hands for the purposes of the election about $150, and in the hands of Mr. William Hamilton, the younger, for a similar purpose, $100. He states that when giving the money to Carruthers, it was mentioned the money was required for posting bills and other legitimate purposes of the election. He understood the payments were to be made for bill delivering, bill posting, and the proper expenses of the election. The money given to Mr. Ham- ilton was for St. Lawrence Ward, getting bills, tickets and cards printed, &c. He understood Mr. Carruthers was to do the necessary printing, the distributing tickets, and pay the other legitimate expenses. His impression was that some printing was done by the central and some by the ward committees. He supposed parties had to be paid for taking around tickets, and for rooms to hold meet- ings in, and other legitimate purposes. He told him to be careful and spend the money for legitimate purposes only. Thomas 0. Ghisholm placed in the hands of Patrick Hynes about $80, and of John Reid, $80, and he spent about $40 himself ; making his expenditure about $200. He gave the money to Messrs. Hynes and Reid to expend in printing and distributing cards, paying for committee rooms, &c. He told them he did not want Mr. Cameron defeated, and that they were not to expend the money for any purpose that was not legitimate. He believed it was so used. He thought it was to be used in the three wards. He gave it to them because he supposed they would use it to get canvassers and printing, and other legitimate purposes. Did not think the central committee printed all the cards; thinks there were other cards printed besides. John Carruthers said there might be as high as $5 a-piece paid for carrying around cards. He said he had paid all the expenses that had been paid in St. David's Ward, as far as he knew. Could not say how much he paid in these matters. It might or might not be $100. It might or might not be $50, for anything he knew. He did not get 1871. J EAST TOEONTO. 77 the funds from any one for the purpose of paying the amounts in the statement. He did liot know whose writ- ing it was in ; to the best of his knowledge he never saw it before. He gave money to McDonald — a dollar or two. He gave no man $10 ; he did not spend $200. Won't swear he did not spend $100. He got money for election purposes from Mr. Gooderham. It . was a small trifle to pay for posting up some bills. It was cash to pay some men they had going round posting bills. Mr. Gooder- ham said to him directly there was to be no money paid for votes. Thinks no one has asked him to pay for any services rendered during the election for Mr. Cameron. He might have given Louis Walker a dollar or so. He kept no accounts of the payments ; had no reason for not doing so. If he paid Walker any money it was for delivering cards. No one received money for voting, nor ' did he ever give any one money to pay them for voting or for influencing their vote. He was strictly forbidden by Mr. Cameron to pay money. Heard him say, if one dollar would secure his election, he would not give it. Was never authorized by Mr. Cameron to pay for dis- tributing cards or anything else. If he did so, it was on his own account entirely. He was sure that in any money paid for distributing cards he did not allow each one more than at the rate of a dollar a day for what he did. The canvassing and committee meetings, off" and on, lasted about two weeks. No person he employed as a canvasser or scrutineer was ever paid by him, even at the rate of a doUar a day. On his subsequent examination, he said people came themselves and volunteered to take a book and go and canvass for Mr. Cameron. There were arrangements as to certain parties taking certain districts. He would give each man a couple of streets, perhaps four or five ; for two other streets, perhaps a dozen. Sometimes they would send men over the same ground. He thought some of the men made mistakes. Only paid parties for delivering cards. Might have had notices sent out for holding meet- 78 PROVINCIAL ELECTIONS. [A.D. ings — that was most of it. The persons so employed were generally voters. He spent all the money he received for those purposes. The services they rendered were not as well paid for as if they had been laboring men employed by the day. Most of his own men got double pay for the same time as these men got who delivered these tickets. He denied that Warwick had ever handed him the list or any paper connected with the last election, except two or three scrutineers' books and some bills for printing. There might have been some small memorandum books. He had destroyed or lost all of them. William Hamilton, Jun., chairman of the committee in St. Lawrence Ward, said he paid some money for dis- tributing cards and posters, and some other legitimate expenses, and for no other legitimate expenses that he knew. There were fourteen or fifteen employed to dis- tribute cards or posters ; most of them strangers to him. He paid them $o, $6, or $10 a-piece, according to the time they rendered. They did not render any account, and he got no receipts or vouchers. He could not recollect the names of any of them. Could not say if they were electors. At the ward meetings these persons came and rendered their accounts of the time they had been occupied in dis- tributing the cards. In addition to these, there were two or three who canvassed. The persons to whom money was paid were tho'se who went about posting bills and distributing cards. He employed fourteen or fifteen men. Thinks it would take four or five days to distribute the cards. They looked as if they were persons taking an interest in the election. He could not name any man he had paid money to. He spent from $80 to $100 in the election in this way. He kept an account of it. Got the money from Mr. Gpoderham. He did not put down the names of persons to whom he paid money ; knew Mr. Gooderham had confidence in him, and he would take his word for it. The money was paid for distributing cards. The bills were posted by the printers. It was given to fourteen or fifteen persons ; thinks it was all done in a to 1871.] EAST TORONTO. 79 week or ten days. He did not suppose it could be done for less ; believes it was a reasonable sum to charge. He paid after the service was rendered. It was considered a fair sum, and he so believed it at the time, and it was not given for the purpose of inducing them to vote. He did not think any of them voted, because he did not know they voted. He did not bring any of them to vote, and did not see any of them vote. He was not aware of any one else paying any money in that ward. Patrick Hynes said he received from $75 to $100 from Mr. Chisholm. It was given to men who were distributing cards. He gave it to them with a distinct understanding and belief that they were distributing cards. To some who said they were out three or four days he gave four or five dollars a-piece. Some might have worked in St. James' Ward. He understood they were generally work- ing in St. David's Ward. Mr. Carruthers said he had got some money from Mr. Gooderham to pay for distributing cards — he mentioned $50 — that he had paid out all he had got, and people were finding fault with him that he had not paid them. He said he could not get enough to pay them all. He did not canvass any of the men ; he under- stood they were warm friends of Mr. Cameron and were anxious for his success, but were not able to spend their time in doing this work without being paid. He thought it was legitimate work. Se believed they had done the work. He did not know if they had spent all their time in canvassing ; they appeared not to be doing anything else. He saw them both in the daytime and at night. He did not keep an account of those to whom he paid it. He of course treated parties; he did not consider it as done to induce them to vote. He thought it likely he spent from $75 to $100. He knew most of the men, but could not tell their names. If the parties came to him and said they had been out two or three days canvassing, he would pay them for it. They were laboring men, or a poor class of mechanics. He did not ask when he paid them if they had worked all the day, or how many hours 80 PROVINCIAL ELECTIONS. [A.D. they had been out. He understood they had been em- ployed, and paid them accordingly. Mr. Chisholm gave him the money for legitimate purposes. He understood that distributing tickets, posting bills, and work of that kind was considered legitimate, and that was the purpose for which it was expended. Never was expended, that he was aware of, for the purpose of bribing the electors, and none used for the purpose of treating at any meeting of electors. None given for the purpose of bribing himself. None were paid a sum, he thought, equal to fair wages for what they did, supposing them to have worked as they said they did and as he believed they did. He did not think any man got over $5 ; some may have got more, others may have only got one or two dollars. He could not say if any of those mentioned in the list as entitled to money in St. David's Ward were paid by him. Could not recollect that they were. John Reid said he received money from Mr. Chisholm. He did not know how much ; did not count it. Was certain it was not $100 or $200. It was under $100 ; he did not count it. It was over $25. He could not come any nearer than that. The money was spent in distribut- ing cards through the ward. He had no idea how many were distributed. They were given to the men to dis- tribute, two or three together distributing them. Knows the names of a good many who were employed distributing. Thinks G. Morphy was so employed. Did not give him any money. Does not remember giving money to any of those mentioned in the list. Does not remember the name of any one he did pay ; is not aware that he paid any- body ; can't name a single person to whom he paid any of it. Is quite sure he has not the money still. He gave it to persons for distributing cards at promiscuous meetings. He did not remember to whom he paid it. Did not give any cards to those who would vote for Medcalf . Thinks he spent some of his own money in that way. Can't tell how much. Thinks he spent of his own money less than $] 00 and over $25. He spent all the money he got from 1871. J EAST TORONTO. 81 Mr. Chisholm. Did not think he had spent $80 of his own money. Will not swear he did not. Did not know of any but himself spending money at that election. The money that he spent of his own and Mr. Chisholm's was spent entirely in the distribution of cards. He thought the parties were friendly to Mr. Cameron. His impression was that some were electors and some were not. To most of them he paid a couple of dollars ; he gave each man what he thought he was worth. Did not know if they asked him for payment. They were men in middling circumstances. Very few of the laboring class had votes^ They seemed very anxious for their man before they got the $2. Thought there were about 1,000 voters in St. David's Ward. Did not know Mr. Hynes had any money to spend. Mr. Chisholm did not tell him so. Did not tell any of the committee he had funds for distributing cards. No particular arrangements were made by the committee for distributing cards, except that certain men had certain localities for distributing cards in. Some were paid and some not. He paid some not mentioned by the combiittee. He gave cards to men to distribute himself. The secretary of the committee in St. David's Ward generally distributed them. He was not aware that the committee knew he was distributing them promiscuously. He told the men, when he gave them the cards, the streets he wanted them distributed in. He could canvass about 300. in a day. Did not think that an unreasonable number ; thought 500 not unreasonable. Some days he could not canvass over 20. Sometimes a man would require a longer time to persuade. He said three or four hundred would be a great many to canvass in a day — to go from house to house. If it were only necessary to throw the card into the house, three or five hundred cards could be distributed in a day. Did not think he spent $75 in distributing tickets. Mr. Chisholm did not pay anything to him for the purpose of influencing him : all he was worth would not influence him. He sup- ported Mr. Cameron before Mr. Cameron gave him the money. The money was not given for the purpose of in- 82 PROVINCIAL ELECTIONS. [A.D. fluencing other voters, or bribing them. He did not use the money for the purpose of influencing the voters, or corrupting or bribing them ; he used no money for corrupt purposes. He was well aware Mr. Cameron was opposed to spending money for the purpose of the election. The case was then argued by Counsel, and the Court adjourned until the 27th September, when the following judgment was delivered : Richards, C. J. — It was conceded, and the evidence geems to establish beyond all doubt, that the respondent, in good faith, intended that the election should be con- ducted, not only according to the letter of the law, but according to its very spirit and intent. He subscribed no money, and paid none, except for some printing, the amount of which was not mentioned, and which there is no doubt it was proper for him to pay ; and it did not appear that he even knew that any considerable amount of money was being expended. When a man so situated is to be held liable for the acts of his agents, the observations of Martin, B., in the West- minsier case (1 O'M. & H., 95), seem to me to enunciate opinions that will meet with general approbation : " The law is a stringent law, a harsh law, a hard law ; it makes a man responsible who has directly forbidden a thing to be done, when that thing has been done by a subordinate agent. It is in point of fact making the relation between a candidate and his agent the relation of master and servant, and not the relation of principal and agent. But I think I am justified, when I am about to apply such a law, in requiring to be satisfied, beyond all reasonable doubt, that the act of bribery was done ; and unless the proof is strong and cogent — I should say very strong and very cogent — it ought not to afifect the seat of an honest and well-intentioned man by the act of a third person." It was urged on behalf of the petitioner, that large sums of money were expended to aid in the election of respondent, and the responsibility was cast on him to show that it was spent in a legitimate manner. 1871. J EAST TORONTO. 83 In the Bradford, case (1 O'M. & H., 30), the respondent opened an unlimited credit at his banker's in favor of his agent, who availed himself of it to the extent of up- wards of £7,200 ; and the agent sent the returning officer a mere abstract of the totals of outlay, unaccompanied by- vouchers ; and this was knowirigly done, contrary to the statute 26 & 27 Vic, cap. 29, sec. 4. It was shown that large numbers of electors were influenced by corrupt prac- tices committed by the agents of respondent. Martin, B., said as to this (p. 33 of the case), that his impression was, if petitioner's counsel had put in the account, and proved that no bills or vouchers had been delivered to the return- ing officer, he would have called on the respondent to prove the legality of every payment contained in the account from the beginning to the end of it. His impres- sion was that that alone would have made a p^ima facie case against any person, especially when he called atten- tion to the amounts contained in that paper. The Imperial statute referred to required that no elec- tion expenses should be paid except through an agent, whose name should be given to the returning officer, and it was to be published. The bills were to be sent in to the agent within a month. A detailed statement of ex penditure, with vouchers, was to be furnished by the agent to the returning officer within two months after the election. We have no such provision in our statutes, {a) and we are now for the first time called upon to carry out the pro- visions of the law, which has been characterized by Baron Martin as a harsh law, and apply its principles to the conduct and actions of men, some of whom have never been accustomed to keep accounts of any kind, and cer- tainly not accounts and vouchers relative to election expenses. I do not think I can be called upon, as against a person who neither knew nor desired this state of things, to infer bribery from the omission of these subordinate agents to keep an account of their expenditure, or to (a) See now R. S. 0., c. 10, ss. 183-187. 84 PROVINCIAL ELECTIONS. [A.D. recollect the persons to whom the money by them ex- pended was paid, as I would do if administering the law according to the enactments which prevail in England on the subject. Here the money was not furnished by the candidate, nor does it clearly appear that Jie was aware that any had been subscribed or was being expended for the purposes of the election ; but it is probable he may have thought that was the case, and it appears he impressed upon his friends the absolute necessity of obeying the law. If he had been aware that a lavish expenditure was going on, or if it was manifest that money was being recklessly used, he ought to have checked and prevented it ; and although if I were satisfied the money had been used for corrupt purposes I would be compelled to avoid the elec- tion, yet I do not feel called upon to infer that it was so used from the mere absence of a satisfactory account of its expenditure, verified by vouchers. There has been no evidence given to show that the expenditure, on the whole, was excessive, if the kind of expenditure referred to is allowable at all. Mr. Scott expended say about $300 in St. James' Ward — no objection is offered to the expenditure or its details ; Mr. Gooderham gave Carruthers say $150 ; Mr. Chisholm gave Hynes $80, and Reid for all the wards, $80 ; say, if all expended in St. David's Ward, $210 ; Mr. Gooderham gave Hamilton, for St. Lawrence Ward, say $100 ; making in all $610. The number of voters on the roll, in St. James' Ward, were 1,856 ; St. David's, 1,827 ; St. Lawrence, 986. If the expenditure in St. James be considered a fair one at $300, the others do not seem unreasonable, though the St. James' committee may have paid for more of the printing than was paid for in the other wards. From the manner in which they gave their evidence, I was under the impression that Hamilton and Hynes had spent all the money placed in their hands for the pur- poses they mention — for the bond fide object of paying 1871.J EAST TORONTO. 85 for services rendered, and not with a view of corrupting or unduly influencing votes. As to Carruthers, I am by no means satisfied that he paid out all the money he received. The list, which the petitioner's counsel in some mysterious way obtained pos- session of, showed the names of persons who had been employed in taking around tickets, some five of whom had received small sums, and the larger portion had not received anything, and never asked or expected anything. Some of them, when applying to Carruthers, were told he had no money to expend for these purposes, but only for printing ; yet he paid some small sums, as he said, out of his own pocket. If he was unwilling to pay these men for the services so rendered, and who were all friends of Mr. Cameron, out of the money he received, I do not think it likely he would pay over the money to induce others to vote for Mr. Cameron. Warwick, in his evi- dence, said that many of the parties who applied to him for their pay stated that Carruthers and he had received money to pay these expenses, but had kept it themselves. Hynes said that Carruthers told him he had received some money from Mr. Gooderham to pay for printing, etc., but he understood it was only $50. It may have been he had only received $50 then, as Mr. Gooderham said he paid the money to him at different times. The evidence of Reid was equally unsatisfactory, and did not impress me with the^ conviction that he had spent all the money he received in paying expenses connected with the election, whether legitimate or otherwise. It is contended that the decisions under the English statute are not applicable to the state of the law existing here. Reference is made to the three clauses of the second sec- tion of the Imperial statute, 17 & 18 Vic, cap. 102, which enacts "That every person who shall directly or indirectly, by himself or any other person on his behalf, make any gift, loan, offer, promise, procurement or agreement as aforesaid, to or for any person, in order to induce such 86 PROVINCIAL ELECTIONS. [A.D. person to procure, or endeavor to procure, the return of any person to serve in Parliament, or the vote of any voter at any election," shall be guilty of bribery. In the Coventry case (1 O'M & H., 106), Mr. Justice Willes, in referring to this section, says: "Therefore anything, great or small, which is given to procure a vote would be a bribe ; and if given to another to purchase his influence at the election, it unquestionably would be a bribe, and would avoid the election. Our own statute, 32 Vic, cap. 21, sec. 67, 3rd paragraph, is in the same words. At the conclusion of the second section of the Imperial statute are the words, " Provided always that the afore- said enactment shall not extend, or be construed to extend, to any money paid or agreed to be paid for or on account of any legal expenses hand fide incurred at or concerning any election." The proviso at the end of the section in our statute is, " Provided always that the actual persoTud expenses of any candidate, his expenses for actual professional services performed, and bond fide payments for the fair cost of printing and advertising, shall be held to be expenses law- fully incurred, and the payment thereof shall not be a contravention of this Act." It is argued that the effect of our statute is to restrict the candidate to the payment of his personal expenses — that is, for his own board, lodging, horse hire, travelling expenses, I suppose, and his expenses for actual profes- sional services performed, — meaning fees paid to lawyers for their services as such. In this view, he could not hire a room to meet the elec- tors in, or for his committee to meet in, unless he were then personally present ; and none of his committee could hire a room for that purpose (for that would not be for professional services), if such room belonged to a voter, and none other could be conveniently obtained. I am not inclined to put this narrow construction on a statute so highly penal as this is. The plain and reasonable mean- ing of the statute seems to me to be what its words indi- cate, that when the prohibited things are done " in order 1871.] EAST TORONTO. 87 to induce such person to procure or endeavor to procurer the return of any person to serve in parliament, or the vote of any voter at any election," — the person so doing" shall be guilty of bribery. In the Coventry case, the point was whether one candi- date offering to pay the expenses of a co-candidate was; guilty of bribery, and reference being made to the proviso- in the section of the English Act, the learned Judge (Willes) said, " It does not relate to the expenses of voters. To pay the expenses of voters on condition of their voting or abstaining from voting, is unquestionably bribery." He then proceeds, " But the candidate may pay his own ex- penses, and employ voters in a variety of ways ; for instance, he may employ voters to take around advertising boards, to act as messengers as to the state of the poll, or to keep the polling booths clear. He may also adopt the course which appears to have been adopted in this city, that is to say, the city or borough is divided into districts, and committees are formed amongst the voters themselves, of selected persons, who go about and canvass certain por- tions of the district, and for their services these persons are sometimes paid and sometimes not paid. Now, un- questionably if the third clause of the second section was to be taken in its literal terms, the payment to canvassers under such circumstances, being, as it is, a payment to induce them to procure votes by means of their canvass, would come within the terms of this clause, and would avoid the election. We have, therefore, a test supplied of the meaning of the third clause of the second section, by means of which we see that it was not intended by this section to do away with every payment made by the candidate in the course of the election." After referring to the Tamworth case, where reference is made to the cases deciding that employing voters and paying them as can- vassers was not colorable, he then refers to the Lambeth case, in which voters employed as canvassers were paid^ and it was not considered illegal. He adds : " It is hardly necessary to point out how exceedingly dangerous the 88 PROVINCIAL ELECTIONS. [A.D. adoption "of that system is, both in respect to the payment of canvassers, and also in respect of that which has been held lawful, viz. : the supply of fair refreshments to un- paid canvassers, whilst engaged actually and not colorably upon this work ; and in like manner, of refreshments to committee-men. It is proper, when this system is referred to as not being unlawful in itself, to say that it exposes members to very great danger, and when it is merely colorable it would avoid the election." He comes to the conclusion that paying the expenses of a co-candidate is not bribery, and is not prohibited by the statute. He further adds : " You must show an intention to do that which is against the law, before you bring the case within the highly penal clauses of the statute." From the evidence given, and the surrounding circum- stances, I do not feel warranted in inferring that the sums really paid to electors for putting up placards, distributing cards, and similar services, were paid colorably and to in- fluence votes. The course pursued, as I understand, was that Mr. Cameron's friends formed themselves into committees in the several wards, and persons came forward and volun- teered to distribute cards in the several localities. They were furnished with books showing the names and resi- dences of the parties they were to call on, and they returned these names and the answers they gave as to whom they would vote for, to the secretary of the com- mittee ; and in that way the information was conveyed to the scrutineers as to the parties who were on the list, whether they were in the city, whether they were dead, and for whom they were expected to vote. The parties entrusted with these books and tickets were, it may be presumed, those in whom the friends of Mr. Cameron had confidence, or they would not have had that position. When the parties commenced to distribute cards, &c., they often found the parties on whom they were to call at public houses, and when there, and speaking on the subject of the election, they, as seems to be the almost universal custom i87l.j EAST TOEONTO; 89 with the class of men whom they meet, asked them to drink, and if others were present they were also asked. The consequence was, the parties distributing tickets fre- quently spent their money, lost their time, and got no pay. When this was represented to the parties having funds to expend they considered it a legitimate purpose to pay these parties for their services a reasonable sum, not at any time exceeding what would be paid to a per- son for working the same length of time in other employ- ments. I cannot say that the evidence of these general payments shows any such bribery as would justify me in setting aside the election. On this particular feature of the case, I may as well remark that when a candidate or his friends expended large sums of ypioney during an election, it is always more satisfactory to have such expenditure shown by correct and proper vouchers ; and if any money be paid to voters, or large sums paid out for refreshments, or teams used in any way, this will be open to attack and observation, and judges will be less inclined, as the law becomes known and its provisions pointed out, to take a favorable view o acts and conduct that may bear two constructions, one favorable to the party elected, and the other against him. As to $10 paid to Mr. McDonald, the son»-in-law o Carruthers, Carruthers himself says he gave him a dollar or two. McDonald says he borrowed from him during this election, $5 at one time and $5 at another, and this had nothing to do with the election. He seemed to be a warm supporter of Mr. Cameron, and I am not inclined to think Carruthers gave him the $10 on account of his services during the election, or to bribe him. The next point is that, with intent of promoting Mr. Cameron's election, Mr. Chisholm spent money for supply- ing drink to a meeting of electors, assembled for the pur- pose of promoting such election. Mr. Chisholm gives evidence on that point, and it is the only evidence given on the subject. He says his own ex- penses were, on the whole, for cab hire and money paid 90 PROVINCIAL ELECTIONS. [A.D. at ward meetings, about $40. He was ill before the elec- tion, and hired cabs to take him from one place to another After the meetings were over he asked those present to drink, and all present drank. He said his object was to be friendly with them, and if, after that, they were friendly to his candidate, he was glad of it. His largest expendi- ture in an evening was six or seven dollars, including cab hire. When he asked the people to drink the question of voting was never mentioned. He did it on his own account. In doing so he had no desire to influence the people's votes. " The object I had in view was this : when men take an interest in these matters, as I did, and exert themselves, if they don't treat people, they think they are mean, and I do not wish to be considered mean." Without deciding that furnishing refreshment by an agent of a candidate, without his knowledge or consent, and against his will, will set aside the election, I think I may dispose of this point in the case, in deciding whether what was done was done corruptly, to influence votes. The lengthened exposition of the cases, as to furnishing refreshments, in the judgment of Chief Justice Hagarty, in the Ghngarry case, (a) makes it unnecessary for me to refer to them at length. In the Tamworth case, where men were employed to keep the peace on the polling day by an agent of one of the respondents, amongst whom were some 29 voters, at 10s. a-head, Mr. Justice Willes had to consider why the agent employed those men, and he said: "I believe he employed them because he desired to gain popularity for himself, and because he desired to make a handle of their employment to gain favor for himself amongst the class to which the men belonged Upon the whole, however, I come to the conclusion, that it was an unauthorized act, done by Baraclough for the purpose of obtaining popularity for himself, and that it was not, either in respect of the question of law, or upon the established facts, an act which I can designate as having (a) Page 16, ante. 1871.] EAST TORONTO. 91 been bribery. It is an act which, so far as I judicially can, I reprehend and condemn ; and if I thought it had been done by him with any view of advancing the inter- ests of his employers, so that I had to impute the inten- tion to do that which was the natural consequence of the act, I must have held the election to be void." Looking then at this as as an unauthorized act against the wishes of the candidate, I think the fairest and most reasonable conclusion to arrive at is what Mr. Chisholm himself says, viz. : that he treated because people would have thought him mean if he did not, and without any corrupt intent. The next class of cases to which my attention was directed was that of those to whom oifers of bribes were made to induce them to vote for respondent. The first is John Fulton. He stated that Leonard Hewit asked him to vote for Mr. Cameron. He said he could not. Hewit asked if he was not going to build a house ; he said he was. Hewit said he would give him two thousand feet of lumber if he would vote for Cameron. He said he could not do it. Hewit said he would send him some more if that was not enough. He said he voted for Medcalf. Mr. Cameron's scrutineer swore him, and that was the way his name came here. On another occasion, just to try him, he asked Hewit what he would give him to vote for Cameron. Hewit said $20, just to try him ; he said he wanted more. Hewit finally decided to give him $25, and gave his word of honor he would make it all right. Hewit asked, would he not take his word and honor until after the election. He said he. sup- posed he must, and he was to vote for Mr. Cameron. On cross-examination he said he did not promise to vote for Mr. Cameron. He said he wanted to get a hold on Hewit; he thought he was too officious, and he wanted to get hold of him. He said he never pr&mised to vote for Mr. Cameron. He would travel from here to Cooksville on his bare feet to vote for Medcalf rather than for Cam- eron. He said there were plenty of men present when the 92 PROVINCIAL ELECTIONS. [A.D. conversation about the lumber took place, but he could not name any of them. The first time he thought Hewit was in earnest, and he was so himself when he refused him. The men could not hear them. He could not tell a single man present when Hewit made the offer. Hewit was called and denied ever offering him any lumber to vote for Mr. Cameron. He said in conversation (they worked in the same shop with other men) about the candidates, that Fulton said when he last voted he got lumber enough to build a house, and he would not vote for either of the candidates unless they came down. He asked him if he thought Medcalf would come down. Fulton said he did not think he would. He (Hewit) said if that was the matter he was foolish for voting for him; that the Government had plenty of money and lumber too ; that was about the substance of his conversation. He did not offer to send up 2,000 feet, or any lumber. He did not offer him $25 to vote for Cameron. He must be laboring under a mistake ; he never offered him a copper. Hewit contradicts Fulton's statements as to offering to give $20 or anything. He never understood from begin- ning to end he was to vote for Cameron ; always under- stood he was to vote for Medcalf. He canvassed for him. He did not know Fulton had a vacant lot. He said that what he did say to Fulton was in the way of chaffing, and as a joke. He said he was foolish for voting for Medcalf ; that the Government had plenty of money and lumber too. Nothing was said from which any person could seriously infer that he intended to offer Fulton anything to vote for Mr. Cameron. He did not think 2,000 feet of lumber or $25 in cash would have induced him to vote against Medcalf. From the manner in which these men gave their evidence, I was not satisfied that any serious offer to bribe Fulton had been made by Hewit. The other persons to whom offers were made were George Smith, James Agnew, and Samuel Nisbet. George Smith said that one of the Gooderhams, he did not know which, said if he would vote for Mr. Cameron 1871.J EAST TORONTO. 93 if we all supported him down there, they would give the right to have South Park Street through. He believed they surveyed it out the day before the ' election. He believed Gooderham owned a small lawn. I understand by this that Mr. Gooderham would con- sent to a street being continued through the lawn. Whether this gentleman was an agent of Mr. Cameron's or not does not appear. I think we cannot on this vague kind of statement unseat the sitting member. George Smith also stated that Oarruthers told him he had bets on the election, and he could make more bets if he (Smith) would vote for Mr. Cameron. He said he would give him $20 if he would vote for Mr. Cameron against the old man (meaning Mr. Medcalf). Smith said he would not take $100 and vote against him. He said he could make up bets; he had one made with Victor Thomas at the same time. Carruthers said he would win the bet if he voted against the old man. This was on the nomination day the speaking was going on; it was a little damp, and he wanted to get away. John Agnew said that on the night of the meeting at the Dutch Farm, Carruthers said to him, " You always did go for me." He replied, " But I can't now." He would do all he could for Mr. Cameron only for Mr. Medcalf. Carruthers said, " You had better have a couple of dollars. You will -have your mind made up before the election comes on." He said he had his mind already made up. Samuel Nisbet was a scrutineer for Medcalf. He said he met Carruthers at Duggan's tavern ; McDermott and McDonald were there. Carruthers said if he would go with them, he had a nice inside job for him ta-morrow. Nisbet said he could not promise. Carruthers said if he went with him he would not rue it; that there was lots of money going. He (Carruthers) said before Wednesday or Thursday night at the outside, he should be recompensed. McDermott and McDonald pressed him to go with them — said there was lots of money. He asked how money could be used. They said they would make that all right, 94 PEOVINCIAL ELECTIONS. [A.D. saying, before Wednesday or Thursday night he would find out. On the day of the polling McDermott and McDonald came in ; they were surprised to see him there acting as scrutineer for Medcalf ; they began to abuse him and call him names. He threatened them if they did not keep quiet at the polling booth, he would use their own words against them. They told him if he had got the two dollars the night before, he would have been for Cameron. On cross-examination, he said he told McDonald on the day of election he would use the words against him. He first told it to the petitioner's solicitor that day. It was not known, before the conversation at Duggan's, that he was going to support Medcalf. He did say something to Mr. Cameron at Lynch's ; found fault with him, and showed a preference for Medcalf ; and that was before the' conversation at Duggan's. He fell in at the end of a meeting in favor of Medcalf at Duggan's ; was also at a meeting at Hamilton's, and said something to two of Cameron's supporters there. Mr. Carruthers was called, and said he never ofi'ered Smith a cent to vote for Mr. Cameron. Smith said no money would induce him to vote against Medcalf. He never gave or offered Agnew two dollars to vote, or make up his mind about voting. He knew very well he would vote for Medcalf, whatever might have been given to him. He denied speaking to Nesbit at Duggan's; he had observed him at Foley's tavern before that, and he would not speak to him, and did not all that night. He never hinted to him that the Government had plenty of money, and could pay election bills. Nesbit was trying to prevent Mr. Cameron from speaking at Lynch's, by making a noise and shouting, before seeing him at Duggan's. He saw Agnew at the lager beer saloon, and he was drunk. McDermott said he saw Nesbit at Duggan's, and asked him who he was going for. He said he did not know. He offered him nothing to vote for anybody, nor did McDonald. He and McDonald did not take Nesbit aside 1871.J EAST TOEONTO. 95 to speak about the election, nor offer him anything to vote. He denied having the conversation with Nesbit which Nesbit said he had had with him. The quarrel at the poll began from Nesbit swearing McDermott as to his vote ; and the latter then said if he had got two dollars the night before, he would have been for Cameron. He said he thought he wanted to be bought, coming round a committee room the night before the election, not know- ing who he was going to vote for. In the Cheltenham case (1 O'M. & H, 64-65), when the question came up as to evidence in the cake of an offer to bribe, Baron Martin said : " Where the evidence as to bribery consists merely of offers or proposals to bribe, the evidence required should be stronger than that with respect to bribery itself, . . . .it ought to be made out beyond all doubt, because when two people are talking of a thing which is not carried out, it may be that they honestly give their evidence ; but one person under- stands what is said by another differently from what he intends it." Looking at the whole evidence as applicable to the offer to bribe said to have been made by Carruthers to Smith, Agnew and Nesbit, I do not think such a clear case is made out as would justify me in setting aside this election on the ground of an offer to bribe these three persons. They received nothing, they did not alter their votes, and I fail to see clear and distinct offers to bribe, which I think the rules laid down in these cases require to justify me in finding that they were made as alleged. During the proceedings there were some other cases referred to, which at some stage of the proceedings seemed to require further explanation, but the further progress of the inquiry served to afford a satisfactory answer, and I have only referred to those cases which were specially adverted to by the petitioner's counsel, at the summing' up at the close of the case. I do not think I can better express many of the views that I entertain in relation to this case than by quoting 96 - PROVINCIAL ELECTIONS. [A.D. the language of Baron Martin, in the Wigan case (1 O'M. & H., 192), as to the principle on which a judge should act in trying a petition alleging corrupt practices. He says : " If I am satisfied that the candidates honestly intended to comply with the law and meant to obey it, and that they themselves did no act contrary to the law, and lond, fide intended that no person employed in the election should do any act contrary to the law, I will not unseat such a person upon the supposed act of an agent, unless the act is established to my entire satisfaction. Things may have been done at an election of which I do not ap- prove — ^for instance, having committees at public houses, hiring a number of carriages (which nov in borough elec- tions is prohibited), or hiring " roughs" — but which do not of themselves avoid an election. They are ingredients which may be taken into consideration, and they may tend to show what was the real quality and meaning of an ambiguous act, which may have one effect or another, according as the judge's mind is satisfied that it was honestly or dishonestly done. It may be that iu an elec- tion, certain acts have taken place which the judge disap- proves of, but which do not satisfy him that another act, on which the validity of the election depends, was cor- ruptly done. But if, upon a future petition ensuing upon another election in the same place, acts similar to those of which the judge had expressed his disapproval were proved to have been repeated, the judge who tried the second petition might well take them into considera- tion to aid his conclusion, that the act upon which the validity of the election depended was a corrupt and dis- honest act." I am satisfied that the respondent honestly intended to comply with the law, and meant to obey it, and has done no act contrary to the law, and hoTvd fide intended that no person employed in the election should do any act con- trary to the law. I have not that clear and satisfactory evidence of acts contrary to law, done by his agents, which will, in my opinion, justify me in declaring the 1871.] WEST TORONTO. 97 election o£ the respondent void, and it therefore becomes my duty to declare that the respondent was duly elected. As to costs, there were no grounds whatever for charg- ing the respondent personally with acts of bribery or other corrupt practices, and the scrutiny was abandoned after some attempts were made to go on with it. The costs as to these parts of the case I direct shall be paid by the petitioner to the respondent. As to the other parts of the case, though the respondent is successful, I think the matters were proper to be in- quired into in the interest of the public; and as to them, I give costs to neither party. (5 Journal Legis. Assem., 1871-2, p. 10). WEST TORONTO. Before Chief Justice Richards. Toronto, 7th to 9th September ; 27th November, 1871. Robert Armstrong, Petitioner, v. Adam Crooks, Respondent. Bona fides of Gandidate — Election Committee Decisions, 34 Vic, c. S, s. SO — Judge CKting as Juror — Canvassers for Special Classes of Voters — Money paid to Voters not rendering Services — Agency and Sub- Agency — Eaiificaiion of Illegal Payments — Hiring of Teams, 32 Vic, c. 21, s. 71— Costs. Where a candidate in good faith intended that his election should be con- ducted legally, and printed a synopsis of the new law as to coiTupt practices, and circulated the same throughout the constituency, and caused it to be published in a newspaper with an editorial article on it, and an abbreviated form of the synopsis to be posted in each committee room, and informed his central election committee of its provisions ; and the Judge found that he had taken a good deal of trouble to have the law explained and circulated amongst the electors, and desired to obey it : Held, — That although many of the acts done during the election created a good deal of doubt and hesitation in the mind of the Judge, yet, as the return of a member is a serious matter, and ought not to be lightly set aside, the Judge ought to be satisfied beyond all reasonable doubt that the acts so done were done with the intention of influenc- ing voters, and so done corruptly ; and this election was upheld. The effect of s. 30 of 31 Vic, c. 3, requiring the Judge to be guided by "the principles, practice and rules on which election petitions touch- ing the election of members to the House of Commons in England are dealt with," is, that the Judge is to act on the principles upon which Election Committees have acted, where he has no light from the rules 7 98 PROVINCIAL ELECTIONS. [A.D. which his own professional experience supplies him with. And he is in addition to be bound by the decisions of the Rota Judges in England trying elections under acts similar to our own, in the same way as the Courts feel bound by their judicial decisions in other legal matters. Where in ordinary cases there is evidence to go to a jury, but on which tlie Judge, if sitting as a juror, would find for the defendant ; in similar eases in election trials he ought to find against the charge of bribery. The bona fide employment and payment of a voter to canvass voters belonging to a particular religious denomination, or to the same trade or business, or to the same rank in life, or to canvass voters who only understand the French or Celtic languages, is not illegal. The fact that such a voter has skill or knowledge and capacity to can- vass would not make his employment illegal. Money was paid by an agent of the respondent ($7 each) to certain voters for canvassing, they observing that "a little money in election time was allowed for knocking around, " which observation the agent , considered "going about to solicit votes." The agent denied it was • paid with any corrupt intent, although his evidence was not satisfac- tory. The voters swore the money was paid to their wives, and the agent was not recalled to explain it. Held, — That although such payment might be open to an unfavorable interpretation, it was not, according to the evidence, inconsistent with being made without any improper motive. Where money was paid to voters for services agreed to be rendered, but such services were not rendered owing to the misconduct of the voters, such payment was not bribery. A voter who had a claim of |3 from a former election of respondent, when' canvassed to vote said he did not think he should vote, evidently putting forth the |3 that was due to him as a grievance. The clerk of an agent of the respondent promised to pay it to him, and he voted, and the money was paid after the election, and charged by the clerk in the agent's accounts as "paid J. Landy |3, " but without the knowledge of such agent Another agent of the re- pondent (McD.), who was treasurer of the ward, and was aware of the claim, and had told the voter it would be made right, paid the first agent's account, but did not then take particular notice of the pay- ment, and it was not explained to him. The clerk had been requested .by his employer (the agent first mentioned) to canvass a particular voter, but was not employed as a canvasser generally by any one. Hdd, 1. — That such clerk was not an agent or sub-agent of the respondent. 2. ^That the payment of the account by the agent (McD. ) was not under the circumstances a ratification by him after the act, so as to affect the election. Cabs and carriages were hired for the use of committee-men and can- vassers during the election and on the day of polling, with instructions to the drivers that they were not to convey voters to and from the poll. One cab was however used for that purpose for the greater part of the day, but without the assent of the agent of the respondent, who had charge of the cab. Held, — That as the evidence did not show that the cabs and carriages were colorably hired for the purpose of bribery or conveying voters to the poll, or that the one cab was so used with the assent of the agent of respondent, the hiring was not an illegal act within s. 71 of 32 Vic , c. 21. Observations on the reasons why candidates should be held liable for acts done by their agents. The TaurAon case (1 CM. & H., 184) approved. 1871.] WEST TORONTO. 99 The election was sustained, but it being in the public interest that the matters brought forward should have been inquired into, and as the respondent had not exercised supervision over the expenditures in connection with the election, the petition was dismissed without The petition contained the usual charges of corrupt practices against the respondent and his agents, and claimed the seat for the defeated candidate, John Wallis. The votes at the election were : For respondent, 1 ,487 ; for John Wallis, 1,316 ; majority for respondent, 171. Mr. Harrison, Q.C., for petitioner. Mr. Bethune, for respondent. < The evidence aifecting the acts of the respondent and his agents at the election is fully set out in the judgment. Richards, C. J. — The petitioner, Robert Armstrong, in the third paragraph of his petition, represents that Adam Crooks, who was returned duly elected to represent the said division in the Parliament of the Province of Ontario, at the general election held on the 21st March last, by himself and other persons on his behalf, was guilty of bribery, treating and undue influence, before, during and after the said election ; whereby he was and is incapa- citated from serving in the Parliament of Ontario for the West Riding of the City of Toronto; praying that the return of the said Adam Crooks should be declared void, and that John Wallis was duly elected and ought to have been returned. The evidence shows that a fund was raised by sub- scription by respondent's friends, amounting to about $450, for the purpose of defraying the expenses of the election, to which the respondent contributed in the first instance $500. It was thought that the contribution of $500 by respondent, and what would be contributed by others, would pay all the expenses of the election ; but if not, Mr. Cattana'ch (a member of the law firm of Crooks, Kingsmill, and Cattanach, of which firm respondent was a member), was authorized to apply any funds to the credit of respondent in the partnership to pay any legi- timate charges, and charge it to his account in the part- 100 PROVINCIAL ELECTIONS. [A.D. nership. Mr. Cattanach, though not at first appointed treasurer of the fund, eventually acted as such, and was at liberty to exercise his own discretion in paying the legitimate charges without applying to respondent as to each payment so to be made. A central committee was formed, and committees in each of the four wards com- posing the Western Division. Efforts were made to get vacant houses to use as committee rooms in all the wards, and when these could be obtained they were hired for that purpose. When the vacant houses could not be ob- tained, rooms for the committees were engaged at public houses. The respondent informed the central conimittee of the provisions of the new law ; made a synopsis of it, got it printed and inserted in the Qlohe, with an editorial on it; he had a large number of copies of the synopsis printed and circulated, and called attention to it, with instruction^ to have it pasted in each canvasser's book ; a more abbre- viated form was stuck up in the committee rooms. The respondent said he was convinced that by a strict observance of the law they could carry the election. He did not know of any violation of the election law on his own part, or by any one on his behalf. The chairmen of the ward committees were furnished with money to pay expenses. Mr. Hime, the chairman of St. Patrick's Ward, stated that when he gave the money to the parties he told them none of it was to be expended in treating or in influencing voters ; it was to pay their own personal expenses. He also gave written instructions that any one who received pay for his services must not vote. Those parties who did spend the money for expenses said they did so in getting refreshments for themselves when canvassing, and if any friends were present they would ask them to par- take, but that that was not done with the intention of influencing their votes. In St. George's Ward the money was disbursed by Mr. Kingsmill, another partner of the respondent ; about $30 were paid for cab and 1871.] WEST TORONTO. 101 carriage hire, of which $18 (this is in addition to those spoken of by Mr. Oattanach, and others, which have not been paid for) were for carriages referred to hereafter, messengers, use of committee room, and for distributing notices and getting up the state of the polls, and employ- ment of persons to inquire about voters whose names were on the list, and who were not known to any of the com- mittee. There was an item of personal expenses during the canvass of $19, being about three weeks, for refresh- ments, cab hire, and such like charges. Mr. Kingsmill stated that he hired two carriages for the day of election from Mr. Bond, one to be at the disposal of Mr. Jaffray;. the chairman of St. John's Ward, and Mr. Millichamp, who was looking after some of the committees ; there was another carriage and driver, and the charge was $18 for all ; directions were given to Bond, from whom they were hired, not to carry voters in those carriages. They were to use the carriages to send them to what polling places they chose to carry agents, committee-men, &c. Mr. Kingsmill said in his evidence they were discussing in St. George's Ward committee about getting voters up, and they came to the conclusion that it would be legal for Mr. Crooks' friends to bring up electors in their own vehicle^. Several persons and cabmen volunteered. He told the cabmen when they volunteered the use of their cabs it must be bond fide; that if they claimed payment for the cab after that, they would not get it. The evidence shows that several others besides cabmen volunteered their conveyances also. Mr. Kingsmill stated that there were about 32 polling places in the division ; it was very difficult to collect the state of the poll, from time to time, in each polling division. They despatched carriages from time to time. It was not done as effec- tually as he wished, as it required a good number of cabs. It was necessary to keep up connections with the different scrutineers, to inform them when a man voted in one subdivision who had a vote in another, so as to prevent him voting more than once, and they had occasion 102 PROVINCIAL ELECTIONS. [A.D. to send messengers from the central committee to see that the other committees and . scrutineers did their duty. They, in that way, required the services o£ a good many persons. The expenditure in St. George's Ward amounted to about $100. The remaining ward is St. Andrew's, the chairman of which was Dr. Howson, who was also secretary arid treasurer of the central committee. The expenditure there has amounted to about Dr. Howson stated that, in any bargain made with- any of the parties who were voters, it was not once stated to any of them how they were to vote. There was no understanding how they were to vote. He had no inten- tion of influencing any of those who were voters -by any purchases made, or by the employment of those who were employed, or of any of them. He did not in any case pay what he considered an exorbitant price for anything done or furnished at his request during or just before the elec- tion. He did not expend any part of the money received from Mr. Cattanach, or of his own money, directly or indirectly, in bribing or to influence electors. He was anxious to carry out the instructions to the committees in good faith. In addition to the printed instructions, he verbally cautioned members against using any means that might be construed into bribing electors or treating. With regard to refreshments furnished to committees, the respondent said himself that, when it was stated on the day of election that the committee in St. John's Ward were unwilling to get refreshments for those who were employed as committee-men and scrutineers, he directed that it should be procured ; he seems to have ordered a carriage for himself on the day of election, and two others for the use of the central committee. These carriages were ordered at Bond's. One of the Bonds, the father, was a voter. The respondent himself, when canvassing, stopped at some of the public houses and took some refreshments. 1871.] WEST TORONTO. 103 which were paid for either by himself or some other person who was with him. Most if not all of the parties that were owners of cabs, who had volunteered the use of their cabs on the day of the election, after the election was over sent in their bills to the central committee or to Mr. Cattanach, but pay- ment for the cab hire was invariably refused. Mr. Catta- nach, at the conclusion of his evidence, made a synopsis of the whole expenditure for the purposes of the election under diiFerent heads. Mr. Harrisop's first proposition is that the election is void by the profligate expenditure of money, for which respondent is responsible, and which had the effect of corrupting the whole constituency, so that the election was not free. On this subject Baron Martin, in the Brad- ford case (19 L. T. N. S. 725), said : " If it had been proved that there existed in this town generally bribery to a large extent, and that it came from unknown quarters, that no one could tell where it had come from, but that people were bribed generally and indiscriminately ; or if it could be proved there was treating in all directions on purpose to influence voters, that houses were thrown open where people could get drink without paying for it ; by the common law such election would be void." In reference to undue influences, he said : " Amongst these influences are what are called bribery, treating, and oppression — that is, an improper and undue pressure put upoti a man. But- if pressure is put upon a man, or a bribe is administered to him, no matter by whom, or refreshments are given to a man, no matter by whom, for the purpose of affecting his vote, the effect is to annihilate tJie man's vote, because he gives his vote upon an influence which the law says deprives him of free action ; he becomes a man incompetent ' to give a vote because he has not that freedom of will and o~f mind which the law contemplates he ought to have for • the purpose of voting." In the same case (1 O'M. & H., 33), Baron Martin, in referring to treating, said : " It is proved that there were 104 PROVINCIAL ELECTIONS. [A.D., open in this town, by persons for whom it is admitted respondent was responsible, 158 public houses, and that in 115 of these public houses refreshments were supplied. Counsel for respondent stated that these refreshments were supplied to people who had done work, but the evidence is directly to the contrary. The evidence is that persons were admitted to these committee rooms ; that the farce was gone through of putting down their names as committee-men ; and that refreshments were supplied to them whether they were voters or non-voters, or messengers. It is proved by respondent's own witnesses that directions were given, that at these public houses re- freshments were to be afforded to the persons who came there, and that they were afforded both to voters and non- voters, and to any person admitted to the room, with the caution that they should not be excessive, but reasonable;" and under the English Act that was sufficient to avoid the election. In the Bewdley case (1 O'M. & H., 16), it was proved that the respondent deposited as much as £11,000 in the hands of one Pardoe, directing him, in his letters, to apply that money honestly, but not exercising, either personally or by any one else, any control over the manner in which that money was spent ; in fact, not knowing how it was spent. Upon that Mr. Justice Blackburn said: "I can come to no other conclusion than that the respondent made Pardoe his agent for the election, to almost the fullest extent to which agency can be given. A person proved to be an agent to this extent, is not only himself an agent of the candidate, but also makes those agents whom he employs. . . . An agent employed so extensively as is shown here makes the candidate liable not only for his own acts, but also for the acts -of those whom he, the agent, did so employ, even though they are persons whom the candidate might not know or be brought in personal contact with." It is contended that I ought to set aside this election in consequence of ttie profuse expenditure of money by the respondent and^tts agents, 'X' 1871.] WEST TORONTO. 105 In the Bradford case an unlimited amount was placed at the credit of the respondent's agent for the purposes of the election, of which he spent £7,200. There were 158 public houses kept open by persons for whom the re- spondent was responsible. In the Bewdley case there was £11,000 placed in the hands of the respondent's agent. An insufficient return of the expenses by the respondent's agent was held sufficient knowledge on his part of corrupt practices. The evidence did not impress me with the conviction there was any particular recklessness of expenditure to indicate general corruption of the electors. There was no keeping of open houses during the period of the canvass, no such general treating as would, under the provisions of the English Act — which contains a special provision on the subject not contained in our own statute — be considered a violation of the law, and certainly none that at common law would be considered as evidence of bribery to avoid the election. It is said that the respondent himself, when canvassing, on three or four occasions stopped at a public house and there obtained refreshments of some kind ; at one place ginger-beer and then soda-water; a third, a cigar, a fourth, a glass of wine, for which sometimes he paid, at others those who were with him ; and that these have to be con- sidered corrupt practices within the meaning of our sta- tutes. I do not doubt but treating may be carried to such an excess as to verge on bribery or undue influence at common law, and in that way make it proper to set aside an election. I do not think such excess was shown in rela- tion to the respondent here. The treating by the parties who canvassed for respondent was also referred to. It seems to me that what they stated on that point was, that the canvassing was generally done in the evening by and amongst a class of men who usually, as a matter of courtesy, when they meet ask each other to drink, and when drinking it is usual also to ask such of their ac- quaintances as are then present to drink also. It did not 106 PROVINCIAL ELECTIONS. [A.I>, strike me that the expenditure in this way was large, or that there were the usual indications of excessive drinking exhibited in the range of this canvass ; we hear of no quarrels or unpleasant disputes which usually accompany excessive drinking. In this respect, therefore, I do not see my way clear in interfering. Another objection urged is the large amount paid for refreshments to committee-men. Furnishing refreshments to committee-men as such, whilst engaged in their work, will not "per se be considered as given for the corrupt purpose of influencing their votes ; they are employed as committee-men because they are known to be favorable to the candidate. People must eat during election time, and if men are employed in this work as committee-men, giving them refreshments under these circumstances does not im- ply that it is done in order to influence their votes. The largest amount for refreshments appears to have been dis- bursed by Dr. Howson, and that was for St. Andrew's com- mittee and for the central committee ; the whole amount was $43. The committees in organization two or three weeks before the election, say two weeks, are not gener- ally very large, and if the average attendance of committee- men in the central and St. Andrew's Ward committees united was 14 or 15 persons per night of the 12 nights of two weeks, and they all got refreshments, the $43 would not pay more than the rate of 25 cents for each person, which would not be very extravagant. Even if there were fewer persons attending, the amount would not seem unreasonably large. The amount of $23 expended in St. John's Ward included the refreshments furnished to the canvassers' agents, and committee-men, on the day of elec- tion. The refreshments during the day of the election at the polling places were distributed amongst all who were then engaged, as well the Deputy Returning oflacers and their clerks, as the scrutineers and agents on both sides. I think the decided cases show this, the furnishing of refreshments, not improper. 1871.J WEST TORONTO. 107 Another ground of objection was, that the hiring o£ cabs and carriages before the election (those hired on the day- being subject to further observation) showed a profuse expenditure, and therefore evidence of bribery. There was nothing came out in the evidence to induce me to suppose that more than the usual and proper amounts were paid for the use of these carriages. There were, I understand, 32 polling places in the elec- toral division. In order to secure. the proper organization of committees, selection of scrutineers, the printing and distribution of handbills, voters' lists, preparing and dis- tributing the books to be used by scrutineers and can- vassers -=- all of which seem to be fair and legitimate objects, and reasonably necessary to be attended to by a candidate who wishes to prevent fraud — great activity was required ; to get over the ground as speedily as pos- sible, and complete the organization with the least possible loss of time, the use of carriages and vehicles of that sort seems to have been absolutely necessary ; and I cannot say the number of persons employed for the purpose, or the amounts paid, are so extravagant as to convince me that this expense was used with a view of corrupting the parties employed or improperly influencing votes. Exception was taken to the payment of canvassers who were electors, and also for distributing, posting bills, &c. Mr. Justice Willes, in the Coventry case (1 O'M. & H., 101) uses this language : " But the candidate may pay his own expenses, and the candidate may, paying his own expenses, employ voters in a variety of ways; for instance, he may employ voters to take round advertising boards, to act as messengers as to the state of the poll, or to keep the polling booths clear. He may also adopt the course which appears to have been adopted in this city, that is to say, the city or borough is divided into districts, and committees are formed amongst the voters themselves of selected persons, who go about and canvass certain por- tions of the district ; and for these services these persons are sometimes paid, and sometimes not paid. Now, un- 108 PROVINCIAL ELECTIONS. [A.D. questionably, i£ the third clause of the second section was to be taken in its literal terms, the payment to canvassers under such circumstances, being as it is a payment to in- duce them to procure votes by means of their canvass, would come within the terms of this clause, and would avoid the election." We have therefore a test supplied Of the meaning of the third clause of the second section (the same as our own statute 32 Vic, c. 21, s. 67, subs. 6), by means of which we see that it was not intended by this section to do away with every payment made by the candidate in the course of the election. And to come more nearly to the present case, it affords a test whether this third clause was ia- tended to prevent every payment to persons for assisting the candidate in obtaining the election. He refers to the Tamworth case (1 O'M. & H., 79), when he had occasion to review the cases in which the employment of voters had come before the election committee. With respect to canvassers he referred (p. 102) to the Lanibeih case (Wol- ferstan & Dew, 129), where "it was held that the system of dividing the boroughs into wards, and forming committees amongst the voters, and employing them to send out can- vassers, was not objectionable, notwithstanding that there was a payment made to the canvassers for their services in canvassing. It is hardly necessary to point out how exceedingly dangerous the adoption of that system is both in respect of the payment of canvassers and also in respect of that which has been held lawful, viz., the supply of fair refreshments to unpaid canvassers, whilst engaged actually, and not colorably, upon work, and in like manner of refreshments to committee-men. It is proper, whenever this system is referred to as not being unlawful in itself, to say that it exposes members to very great danger, and when it is merely colorable, it would avoid the election ; I refer to these cases to show that it is not every pay- ment for the purpose of procuring a vote that can be held within the third clause of the second section. You must show an intention to do that which is against 1871.J WEST TORONTO. 109 the law before you bring the case within any of those highly penal clauses of the Act." The cases referred to by the learned judge are the Tamworth case (1 O'M. & H., 79), and the Leicester case (1 Power, Rodwell and Dew, 178), where it was laid down that the colorable employnient of voters under the pretence of giving them wages for services which were not rendered is bribery, and that the color- able employment of voters for the purpose of inducing or enticing them to vote for the candidate who employs them, is bribery. On the same side of the question is the Oxford case (Wolferstan and Dew, 109), and the Hull case (Wolferstan and Bristowe, 87). On the other side there are various cases in which the committees came to the conclusion that the employment of voters was not colorable ; in some, because the services, though not ren- dered, were expected by the candidate or his agent to be rendered, and in others because the intention to bribe was negatived by the circumstance that service was contem- plated hy the candidate or his agent, and that it was only hy reason of the miscoiiduct of the voters em/ployed that it was not rendered. The most remarkable of these cases is the Gam- hridge case (Wolferstan and Dew, 23, 41) when Mr. Deasy (now Baron Deasy) delivered a reasoned judgment. There is also the Lamhdh case (Wolferstan & Dew, 129), where the committee decided that the system of organized can- vassing proved to have existed at that election, accom- panied by the payment of the canvassers, was, under the circumstances, legitimate, though payments were made to the voters who were employed in the course of the system. In the Preston case too (Wolferstan and Bristowe, 76), the committee declined to set aside the election on the ground that the system had been resorted to. The 26th section of the English Parliamentary Elec- tions Act, 1868 (similar to section 30 of our Act 34- Vic, c. 3), provides that " the principles, practice and rules on which Committees of the House of Commons have here- tofore acted in dealing with election petitions, shall be observed so far as may be, by the Court and Judge in the 110 PROVINCIAL ELECTIONS. [A.D. case of election petitions under this Act." This directs the Jiidge to act on the principles upon which election committees have acted when he has no light from the rules which his own professional experience supplies him with. I take it the Judges here are called upon to act on the same principles ; and in addition they are bound by the decisions of the' Rota Judges in England sitting for the trial of controverted elections under acts similar to our own, in the same way as we feel bound by their deci- sions in relation to other legal matters. In reference to the sums paid by Mr. Hime to Mc- Lellan, McQuinn, McGee, McGrath and Wimberton, the last not a voter, he states that these sums were paid to them to cover their expenses in canvassing, &c. ; Wimberton got an additional $5 to pay him for acting as scruti- neer. It is said these parties were not called to show how they had expended the money. Frimd facie it was paid for what, according to the above decisions, if bona fide, was a legitimate purpose, and if the petitioner wished to show it was corrupt, the onus of calling the witnesses to show it seems to be on him. {Liclifkld case, 1 O'M. & H., 23.) The expenditure by Graham of the $40 entrusted to him, it is contended is not satisfactorily accounted for. In his evidence Graham said the $40 was given to him as chairman of a sub-committee ; he thinks there were eight or ten of the sub-committee. Mr. Hime asked him what he thought would be necessary for the usual expenditure in the east end ; he told him he thought $40 would do ; he would require the money to give to canvassers to pay their necessary expenses ; all the members of the sub- committee were canvassers : Patrick Smith and James Walsh, of Dummer Street, William Mulligan, McGaw, Mr. Gossage and Mr.. Ford, Aid. Dickey, and some man con- nected with the foundry ; he thought he gave Ford, $3 ; Mulligan, perhaps $4 ; McGaw, $2 or $3 ; Jas. Walsh, $7 ; he said in consequence of his living on Dummer Street, he would want more ; is not sure he asked for $7 ; he thought 1871.J WEST TOKdNTO. Ill that would be necessary ; could not say why his expenses were more than the man who lived on Caer Howell Street, McGaw ; he said he would vote for Mr. Crooks before he paid him any money ; believed he voted at the former election for Mr. Crooks ; gave Patrick Smith $7 for his ordinary expenses ; he did not know to whom he paid the remainder ; never kept an account ; did not know he would be called to account for it ; Mr. Himfe told him to use the money in a fair, square way, meaning, as he under- stood, without treating or bribing, or any but for expenses. On the Saturday night before the election. Smith and Ryan said they wanted to do all they could, and would do all they could. On the evening before the election they met at Mr. Gossage's house ; they said they got on well and would be down next morning. Next morning Walsh came and voted for Wallis. Before that he pretended he was doing all he could for Mr. Crooks. Smith said he had canvassed for them. He did not use a book; he knew all the voters. They both told Mr. Gossage they were doing all they could for him. He paid ordinary expenses in going about canvassing himself ; can't say how much he expended ; thinks it possible he may have spent $1.50 a night. He says he may have spent $21 in treating. When he gave Walsh and Smith the money he believed they were honestly on Mr. Crooks' committee, and in- tended voting for him. He paid them the money without the slightest intention of inducing them to vote for Mr. Crooks. They told him before he gave them the money they had been working for Crooks, and doing all they could, and wanted a little money to pay their expenses. At the meeting at Mr. Gossage's it was arranged they should bring up voters for Mr. Crooks — those that lived in that loqality; they did not discover that Walsh was against them until he voted on the morning of the elec- tion for Mr. Wallis ; Mr. Gossage on that wislied Sipith sworn, and he refused to take the oath; the others to whom he gave the money had been working a week before for Mr. Crooks, as he knew ; the money was given 112 PROVINCIAL ELECTIONS. [A.D. them without the slightest intention of influencing their votes ; he was told at the beginning not to spend any money for that purpose. On re-examination he said they never gave an account of the expenditure of the money, and he never asked them for one. Mr. Graham's account of how he disposed of the money placed in his hands is far from satisfactory ; but as already intimated in a previous case, I do not, in the present state of the law on the subject, feel at liberty to infer from that fact alone that he has spent it for the purpose of bribing electors, or other corrupt practices. The money, I have no doubt, was given him in good faith, to be expended, properly and legally, for the purposes of the election; whether he has spent it all or not, the evidence does not satisfy me. But I have to decide whether the money has been spent for bribery. As to all the persons objected to, to whom Graham paid the money, I do not think the evidence points to any, as to whom, on the principles on which I think I am to decide this case, I can say they have been bribed. The only two about whom the most serious, discussion has taken place are Walsh and Smith. The first point is, that the inoney was paid to them as representing a particular religious denomination, to influence other voters belonging to the same church as they did. That may be an argument to show why th-e money was paid to them, but if the employment of a voter bona fide to canvass is not illegal, and the cases show it is not, the mere fact that such voter has skill or knowledge and capacity to canvass, would not make his employment illegal ; nor would the fact of the canvasser being of the same trade or business, or of the same rank in life of a class of elec- tors, make such employment corrupt. If they were sub- jects of Her Majesty who only understood the French or Celtic languages, eijiploying a canvasser familiar with those languages, could not be improper. Then why, because he happens to be of the same country and religion ? In the Bradford case (1 O'M. & H., 32), it was proved that a number of persons who were known to 1871 .J WEST TORONTO. 113 have influence with the Irish voters, o£ whom there were many in the borough, were paid on behalf o£ the respond- ent to use their influence with these voters to restrain them from voting against the respondent. Baron M-^rtin said : " There were a number of voters whose support it was deemed desirous to obtain, and money was given to a few persons to exercise their influence on those per- sons to induce them to refrain from voting. That seems to me to come within the very words of the statute. It was quite different from canvassing, from paying a person for his labor, and for using such persuasions as were lawful when inducing a voter to vote." It is con- tended here that these men were employed to use such persuasions as were lawful to induce voters to vote, not to restrain them from voting. On this point I think the objection must fail. But the question still remains, was the money so paid to these parties really paid to them to canvass and otherwise exert themselves for the respond- ent by looking after votes, or to pay their expenses while doing so. If the case depended solely on Graham's evi- dence, I might have more difficulty to decide ; looking only at the evidence of Graham, Smith and Walsh, it is very manifest that they were, by their conduct and actions, giving Graham to understand that they were in favor of Mr. Crooks, and this before the money was paid them ; and the observation of one of them that a little money in election time was allowed for knocking around, and the whole nature of the evidence, satisfies me that Graham was convinced they were supporting his candidate. He undoubtedly thought they were proper persons to employ to canvass on Dummer Street, and considered the observa- tion as to money when knocking around in election times meant when going about to solicit votes. Graham says, before he gave them the money they told him they had been working for Crooks, and doing all they could, and wanted a little money to pay expenses, and he gave it to them. It is suggested the amount indicates more than would be necessary to pay the expenses ; $5 was given to 114 PROVINCIAL ELECTIONS. [A.D. other parties to pay their expenses, and $7 to each of these two. He said Walsh stated that in consequence of living on Dummer Street he would want more ; he thought that Would be necessary, but could not explain why it should be more than the men who lived on Caer Howell Street received. I cannot tell whether the canvass of the portion of the division that these two persons were expected to overlook, would necessitate a larger or less amount than was given ; if these men were laboring men and could not afford to lose any money paid out by them, and were to be paid anything for their time ; if they were con- sidered to be active members of the committee, and were to look after and bring up votes on the day of election, I cannot say that the $7 each appears to me to be so great that I will assume it was intended to bribe these men to. vote for Mr. Crooks, when the man who gave it to them positively denies any such intent, and when he had every reason to believe that they intended to support Mr. Crooks before he gave them the money. Though I am not satis- fied with Graham's account of how he disposed of the money, I certainly would be more inclined to believe his statements than I would theirs when they conflict. It does not appear very clearly how it was that the money was paid to their wives. If they were not at home at the time there would be nothing singular about that, and even if they were present, one can scarcely see any particular reason why it should be so paid unless it might be thought that payment to the wife w^ould enable them to deny it if they wished to do so. This matter came out on the, evidence of these two persons after Graham had been ex- amined. He was not recalled to explain it, and although it might have borne an unfavorable interpretation, it is not inconsistent with being done without any improper motive. The matter was not sufficiently inquired into to enable me to say, with any certainty, that there was any- thing wrong about it. When, however, the cross-examination of Walsh and Smith is referred to, and the evidence of Mr. Gossage and 1871.J WEST TORONTO. 115 Mr. Ford, the statements of the former are certainly not to be relied on, and they impressed the two last named witnesses, as well as Mr. Graham, with the conviction that they were ardent supporters of Mr. Crooks. As to Walsh and Smith, on the principles on which I feel bound to act in these matters, I do not think the evidence will warrant me in holding that Smith and Walsh were bribed, though, in fact, they may not have rendered services for the money they received. Their services were expected by Graham to be rendered when he paid the money, and they were not rendered by reason of the misconduct of the voters employed. (See reference to the decided cases on this subject already referred to in Mr. Justice Willes' judgment in the Tarit- wo-r'th case, 1 O'M. & H., 79). These observations will apply with equal force to the case of George Evans. Mr. Hime, the gentleman who gave the $10 to Evans, gave his evidence in a frank, straightforward manner, and seemed to me to be stating the truth. He said he was to take charge of the west end, and employ others to assist him. He told parties when he gave them money that none of it was to be expended in treating or influenc- ing voters, but it was to pay their own personal expenses. I do not think under these circumstances I can infer bribery. The impression on my mind is, that it was given to Mr. Evans believing him at the time to be a warm friend of Mr. Crooks, to be expended in paying proper expenses whilst he was endeavoring to secure Mr. Crooks' return. If Mr. Evans, instead of expending the money for that purpose, kept it himself; I cannot infer from his misconduct that it was given to him as a bribe, and not for the services he undertook to render. This brings me to the last case of bribery — James Landy. Landy claimed that there were three dollars due him for driving for Mr. Crooks at the former election ; that he was employed by Mr. Jaffray, and when he applied for the pay some weeks after the election, Jaffray said he 116 , PKOVINCIAL ELECTIONS. [A.D. ought to have applied before ; that the accounts were made up, and he could not pay him. At this election, when spoken to to vote, he said he did not think he should vote, and was evidently putting forth the $3 that were due him as a grievance. There was evidence that Mr. Mc- Donald, who acted as treasurer of the committee for St. John's Ward, told him that would be made right, and finally Ryan, a clerk of Jaffray's, who was the chairman of the committee of the ward, gave him his word that he would pay him; after that he voted, and some week or two after the election Eyan paid him, and the amount so paid was entered in the account which Jaflfray had against the committee for refreshments furnished to scrutineers, committee-men, etc., in St. John's Ward on the election day already spoken of ; it was an isolated entry : for James Landy, $3. The refreshments were got by Jafiray because McDonald, the secretary of the com- mittee, had some difficulty in procuring the supplies. Jaifray said he never gave Ryan any money to give to Landy, but after the election was over he believed McDonald did. Ryan was not on the committee for St. John's Ward. Ryan said that he got the $3 to pay Landy out of Mr. Jaifray 's till. He did not think Mr. Jaffray knew it. McDonald repaid the amount to Mr. Jaifray about a week after the election. He said he paid the money to Mr. L., and when the account for cheese, biscuits and other articles supplied to the committee was made up, he included the $3 in it. He was doubtful if he told Mr. McDonald of the entry of this payment, independent of the entry in the account. He said he was not on Mr. Crooks' committee, and was not instructed to take any part in the election. What he did was of his own free will, except that Mr. Jaffray asked him to drive the carriage he was entitled to as chairman of the committee that day. He thought Mr. Jaffray asked him to call on Mr. Brown and solicit his vote for Mr. Crooks, and he was the only person Mr. Jaffray asked him to solicit to vote ; he did not mention Landy 's name to him at all ; he made 1871.] WEST TORONTO. 117 a note of payment to J. Landy of $3, without mentioning what it was for ; he had no authority from Mr. Jaffray to> pay out money on account of the election. Mr. McDonald, on being recalled, said that after the conversation said to have taken place in Landy's house, when he was present, in which it was said he intimated to Landy that his claim for the prior sum would be made right, he had seen Landy and told him positively that he should not and could not give one cent of his claim to gain the election ; he said that when he was settling up the accounts about the elec- tion, he requested Mr. JafFray to have his account made up, and when he came in in the evening the account was made up ; the amount was mentioned, $26.26 ; he paid it, believing it was all right. At that time he did not know the item of " paid J. Landy $3," in the bill, was for paying the old claim Mr. Landy had ; about a week or two after he examined the bill, and saw the charge of payment of $3 to Landy in it ; he did not take particular notice of it then. I do not think Ryan can properly be considered an agent to bind the respondent by his acts. He was not employed as a canvasser generally by any one, and the only person he was asked to canvass was Mr. Brown- Mr. Jaf&ay asked him to call on Mr. Brown and solicit his vote for Mr. Crooks ; but Mr. Brown had promised Wallis, and voted for him. This appears not to bring Ryan as an agent within any of the views of agency laid down by Mr. Justice Willes in the Bodmin case (1 O'M. & H., 120) : " It might be'limited to the case of a person who was employed to canvass a particular voter or particular voters only, and then that person would be one whose authority being limited to such voter or voters, his illegal act in respect of others could not affect the member, because he would be only an agent in that particular limited capacity." He must be an agent employed by a member to canvass. There is no pretence that Ryan did in fact canvass generally. In the West- minster case (1 O'M. & H., 96), as to the conduct of the son 118 PROVINCIAL ELECTIONS. [A.D. of one Hbtton, Baron Martin said : " His may be a strong ease ; but, although young Hotton seems to have been active with regard to the election, I cannot hold that an act done by him because his father was a person for whom the respondent would be responsible, would make young Hotton also ;" I do not think respondent would be responsible for the conduct of Eyan, even if he had been more active ; the only question is whether re- spondent can be held responsible for Ryan's act because McDonald paid the money, and therefore ratified Ryan's act and agency in making the promise. In the Tamworth case, Justice Willes said : " But the rule is plain that a rati- fication after the act is equivocal to an authority given at the time. The rule is also plain as limited to the case in which the principal, the person sought to be made liable as principal, is acquainted with the character of the act. at the time when he ratifies." Was McDonald at the time he paid the money aware of the reason and purpose for which Ryan had paid it to Landy ? He says he was not ; that when he paid the account he did not observe that it was there ; and when he saw it about two weeks after- wards, it did not occur to him it was for a payment of the kind it turned out to be. There is nothing to show that he had been informed by Ryan of the nature of the services for which Landy had been paid, nor is there any- thing to show he was aware that Ryan had had any inter- course with Landy to induce him to suppose it could have been paid for any objectionable matter. It is suggested that it was strange Mr. McDonald did not inquire of Mr. Jaffray in paying the bill what all these charges were for. The answer he gives is that he had every confidence in Mr. JaflTray, that he would only put down what was right, and Mr. Jafiray he supposed, knew, being chairman of the committee, what was required, and that he had confidence he only got that, and paid for what was. got. As to this case, I do not think I can properly set aside the election. The remaining question is as to the hiring of convey- ances by the respondent to be used on the last day of the 1871.J WEST TORONTO. 119 election, and the volunteering by certain cabmen of their cabs for the carrying of voters to the polls on that day. The 71st section of our statute 32 Vic, cap. 21, after recit- ing " that doubts may arise as to whether the hiring of teams and vehicles to convey electors to and from the polls, and the paying of railway fares and other expenses of voters, be or be not according to law," declares and enacts " that the hiring or promising to pay, or paying for any horse, team, carriage, cab,, or other vehicle by any candidate, or by any person on his behalf, to convey voters to or near, or from the poll, or from the neighborhood thereof at any election, etc., etc., shall be illegal acts." [The Chief Justice then referred to Mr. Cattanach's evidence on this point, before referred to, and said] : The only case I have meti in which a circumstance at all similar is referred to, is in the Longford case (2 O'M. & H., 14). It was proved there was considerable difficulty in providing conveyances for voters living at a distance to go to the poll, and that certain voters who owned cabs were induced to lend them for the conveyance of other voters, and were paid for so doing ; it was contended that these payments to voters were colorable payments, and the reward to them for voting or to induce them to vote. The learned Judge (Fitzgerald), after stating that he had come to the conclusion that this was not a colorable pro- ceeding, said : " I think it was a step of a very dangerous character; it brought the parties to the very verge of the law, and it would have required very little, if pay- ments were actually made, to come to the corclusion that they were made to influence the vote, and so to void the election on the ground of bribery." If the money had been paid in the case before us, no doubt, the inference against the respondent would have been much stronger ; but acting on the principle before mentioned, I do not feel justified in holding the proceed- ing to have been colorable. Then as to the hiring of the carriages at Bond's for the use of the committee-men and canvassers on the day of 120 PROVINCIAL ELECTIONS. [A.D. the election. These carriages were not hired for the con- veyance of voters to the poll, and instructions were given to the drivers that they were not to be used ; but from the evidence of Ryan, the one sent to St. John's Ward was used for that purpose most of the day. He said he did not think Mr. Jaffray mentioned that they were not to take Osier in his carriage, but he did hear him say that no voters were to be taken to the polls in hired buggies, carriages, or cabs. The carriage was one of Bond's, but he understood it was the chairman's carriage. Jaffray himself was not asked anything about voters being brought up in the carriage. I cannot infer that these carriages were colorably hired for the purpose of bringing up voters ; that one was so employed more or less is evident ; but it is not clear that it was so used with the assent of Mr. Jaffray, and there- fore such an illegal act on his part as would avoid the election, as his hiring one carriage or using a hired one for that purpose would have that effect. I am not prepared to hold that the election is void on the ground of the employment of these carriages by the respondent on the morning of the election. In the Salford case (1 O'M. & H., 133) it was proved that a con- siderable number of cabs were hired for the respond- ents, not for the conveyance of voters to the poll, but for the canvassers to go into the places where the voters were at work, the canvassers then walking up to the poll with the voters. It was not proved (although it was alleged) that in many instances voters were conveyed in the cabs. The fourth allegation in the petition in that case was that the respondents did, by themselves and other persons on their behalf, hire and engage and pay money for and on account of a number of conveyances for the purpose of conveying voters to the poll, and which were used for such a purpose on the day of the election in their interest. In giving judgment, Baron Martin said : "I have already stated, if I considered the allegation proved I should reserve the point for the Court of Com- i87l.] WEST TOEONTO. 121 mon Pleas; but after the. evidence of the respondent, Mr. Cawley, and others, I could not state as a fact that the conveyances were hired for the purpose of conveying voteis to the poll." Baron Martin said, in the same case, in reference to section 36 of the English Representation of the People Act, 1867, " it showed as plainly as possible that the intention of the Legislature was that voters should either walk to the poll or go in their own carriages. The Legislature has made most stringent provisions as to having polling places in the most convenient places in boroughs for every voter. The intention is to prevent the hiring of conveyances for voters, and to provide that people should walk to the poll or go in their private car- riages, and it seems to me it is the same thing whether a man rides in a private carriage provided for him or comes in a hired carriage." Our statute is not in terms like the section to which he was referring, and I am not prepared to say that a man who has a carriage may not, if he chooses v so to do, take any of his neighbors to the poll with him, provided it is not done colorably, and with intent to charge for it, or to bribe the voter. As to the hiring of the carriages by Mr. Crooks, I cannot find, as a fact, that he intended at the time of the hiring, they should be used to convey voters to the polls, or that Mr. Jaffray so intended to use them. There are two cases, Thompson's and Halligan's, referred to. As to James Thompson, he at first seemed to be act- ing for Wallis, but afterwards changed and became a member of Mr, Crooks' committee. His own account of his reason for changing is not satisfactory, and his state- ments afterwards made to Mr. Dodds were not of a character to induce any one to suppose that his motives were purely patriotic in changing. Mr. Cattanach stated that he was not aware that Thompson had been acting on Wallis's committee until he heard him state it in his examination. The first Mr. Cattanach knew of him was as a professed supporter of Mr. Crooks. He never spoke to him about getting his vote, or getting him to canvass. He promised him nothing before the election, and when 122 PROVINCIAL ELECTIONS. [A.D. lie paid him the money he represented that he had been exclusively employed for some days canvassing. He had met him both in the daytime and at night ; in the day- time canvassing, and at night in the committee-room. He also said he knew what Thompson had done in thj way of canvassing — ^how much he had gone about — and though he charged $10 he only paid $5, which he con- sidered his legitimate expenses. As to Halligan's evidence, it is not at all satisfactory. Mr. Cattanach said he can- vassed for Mr. Crooks ; he applied for a larger sum than $10 ; said he had been working for Mr. Crooks ; spent money necessarily in what he was doing ; wanted Mr. Cattanach to pay him ; wanted more than $10 ; he said his disbursements had been $10 for necessary refreshments; Mr. Cattanach inquired immediately how he had spent the money ; was satisfied he had not spent the money for illegal purposes ; he knew he had been very active ; thought the sam not unreasonable, and paid him $10. I believe I have gone over each particular point and case made, and referred to by Mr. Harrison in the argu- ment, and if I have not expressly decided each by name I think I have in effect disposed of them all. I believe I have not expressly mentioned the amount paid for the repair of the mission house, which was injured whilst Mr. Crooks was holding a meeting there. I see no reason why in law or justice this should not be paid. In deciding under the statute, the first question I had to consider was, did the respondent really desire to obey the law and carry it out fairly, and did those for whose acts he is responsible desire to do so. I have come to the conclusion that they so intended. Mr. Crooks himself took a good deal of trouble to have the law explained and circulated amongst the electors generally, and I have no doubt desired to obey it as he understood it. Mr. Cat- tanach I have no doubt was influenced by the same motives, and I think they acted in this view, and the subordinate agents also, so far as not intending to resort to illegal practices. I cannot say but many of the things 1871.J WEST TORONTO. 123 'done during the canvass and the election, brought out in the inquiry, created a great deal of hesitation and doubt in my mind how far I ought to consider these acts color- -able or not. It would be very easy to dispose of this and other similar cases, whenever anything questionable may arise, to take the most unfavorable view of it, and at once con- sider that any act that was at all questionable was evidence of such a corrupt practice as would avoid the ■election. Take the case, for instance, of money placed in the hands of an agent to disburse for proper legitimate purposes ; when called on to explain what he has done with the money, if he fails to tell how he has spent it all, to whom he gave it, and for what purpose, then that I am to infer he spent it for bribery, and therefore set aside the election. In construing a statute of so penal a char- acter as this I do not feel at liberty to pursue such a course ; in fact, as already intimated, I consider myself, under the words of our statute, called upon to act upon the principles upon which election committees have acted in relation to these matters, and that I am bound by the decisions of the Rota Judges and the Courts, in the same way as I would be in disposing of cases of common law- In my judgment in the East 'J oronto case (a) I have cited the strong language used by Baron Martin in the Wigan <;ase, where he refers to the necessity of establishing the acts to unseat a candidate to his entire satisfaction, though much may have been done at the election of which he disapproved. The doctrine seems to be well established through most of the cases, that to upset an election a Judge ought to be satisfied that the election was void, and that the return of a member is a serious matter, and not to be lightly set aside. In the London- derry case (1 O'M. & H., 278), Mr. Justice O'Brien said : " The charge of bribery, whether by a candidate or his agent, is one which should be established by clear and satisfactory evidence. The consequences resulting (a) Page 96, ante. 124 PROVINCIAL ELECTIONS. [A.D. from such a charge being established are very serious.. In the first place it avoids the election, and in the Warrington case (1 O'M. & H., 44), Baron Martin is re- ported to have said that he agreed with what had been said by Mr. Justice Willes at Lichfield, that before a Judge upsets an election he ought to be satisfied beyond all doubt that the election was altogether void. In the next place the 46th and 49th sections of the Controverted Elections Act 1871, impose further and severe penalties for the offence, whether committed by the candidate or by his agent. Mere suspicion, therefore, will not be sufficient to estab- lish a charge of bribery, and a Judge in discharging the duty imposed upon him by the statute, acting in the double capacity of judge and juror, should not hold that charge established upon evidence which in his opinion would not be sufficient to warrant a jury in finding the charge proved. There may be cases where there is evidence to go to a jury, and on which they are to decide as to the effect it has on their minds and come to a conclusion, but in which if the Judge were sitting as a juror he would find for the defendant ; and I apprehend in such a case he ought to find against the bribery. Baron Martin in the Westminister case (1 O'M. & H., 89), laid down the doctrine that in those cases the Judge ought, to be satisfied beyond all reasonable doubt. In that case £209 were expended in paying shopkeepers at the rate of 7s. a week for allowing boards with posters to remain in front of their windows. Inquiry being sought as to that point, he said, p. 90 : " For me to decide that the respond- ent is incapable of being elected by reason of these boards, I must be satisfied that when these boards were issued there was in the mind of the respondent's agents the intention that the payment in regard to them was to be, not for the purpose of compensating the persons for exhibiting them, but to be a benefit given to these persons in order to in- duce their votes. That I am not satisfied of." I refer to these cases to show the necessity of a clear case being established before an election is set aside. 1871.] WEST TORONTO. 125 I have disposed of the question as to the employment of cabs and teams on the merits, without deciding whether, for the mere employing of a vehicle to convey voters to the poll, I should order an election to be set aside. I have no doubt there may be such an employment as would produce that effect, and Baron Martin, in the case already referred to, stated if it had become necessary to decide that point he would have referred the question to the Court of Common Pleas, though the English Act by no means in terms implies that the ' violation of it would set aside the election. The course pursued in this election, and also in the East Toronto election, of placing money in the hands of agents or committee-men, without talcing the precaution of seeing that it was all properly expended according to law, if continued, will probably induce Judges hereafter to take the view most unfavorable to those who thus place the means of bribery in the -hands of subordinate agents. The employment of electors as paid agents of any kind is always hazardous, and must often, if continued, lead to fraud. Many of the paities so employed, it is said, were paid merely their expenses. If it is expected that Judges are to decide that payments made for that purpose are to be recognized as honafide and not colorable, each person should be prepared to show and prove what his expenses are that he has paid, otherwise the Judge will be likely to infer that he is paid for his services besides. But if paid for services as canvasser, scrutineer, or other services of a similar character, he does not seem entitled to vote under sec. 3 of our statute (32 Vic, cap. 21). I should have felt very much embarrassed if I had been called on, in the event of a scrutiny, to decide how many of these voters who received pay for their expenses satisfied me that they had really expended the sums they had received. I have not felt warranted in taking an unfavor- able view of the omission to show the expenditure of all sums placed in the hands of subordinate agents, because the rule has not obtained in this country that prevails in 126 PROVIlfCIAL ELECTIONS. [A.D. England, of having all these payments made through the hands of an agent, and where parties understand that it is. necessary to show with reasonable certainty, by accounts, in detail, the amounts they have actually expended, and. what for. But hereafter it is most probable parties will be held to a more strict accountability in this respect. In my own opinion, to make these expenditures of money during elections at all satisfactory, the same rigid care and responsibility should be demanded in its expenditures, and in the production of vouchers therefor, as are required, in the ordinary business transactions between man and man ; that because a man is a candidate at an election,, he shall not be compelled to make a profuse- expenditure of money to satisfy the appetites of a few cormorants, who, under the pretence of being his friends, may be really- fleecing him under pretence of paying out his money for the legitimate purposes of his election, or others who may be feasting at his expense under the pretext of devoting- themselves to his services without pay or reward. The getting cabmen to volunteer the use of their cabs, to bring voters up to the polls on the election day is, another practice which, if followed up, will be likely to. lead to great abuse. Here I have no doubt that Mr. Cattanach and the other gentlemen who intimated that, this course might be adopted, honestly intended what they said to the owners of cabs, that they would not be paid for their use. But did the cabmen themselves believe that, was honafide ? Every one of them, I believe, sent in bills, claiming pay for these days. It is true the payment of these bills was refused ; but if the practice be persisted in it will be difiicult to justify it. The question will always be open for discussion, and the previous employment of these parties, and the rate at which they were paid, will be- inquired into to see whether what seems a free offer on their part is not in truth merely working for the pay they have received, or expect to receive-. As to the hiring of carriages for the use of committee-men, if many of these; are engaged, and they are really used {or carrying voters 1871. J WEST TORONTO. 127 though the party hiring them may not so intend, that will be open for discussion. It is of course very difficult, when carriages are standing in the vicinity of a polling booths, for canvassers to avoid taking them to go after voters,, and still more difficult to avoid using them to bring up. the voters ; and if that course should be pursued to any extent hereafter, it is probable that the inference would be- drawn that the reason why they were sent was not for- the iona fide use of the committee-men, but to facilitate; the bringing up voters, which is against the law. The amount expended at this election seems large — about $1,800, including some accounts not yet paid; a, very large portion of the expenditure — nearly $800 — appears to have been for printing, advertising and sta-. tionery; yet the remaining portion strikes one as large and demanding inquiry. It may be as well here to refer to the reason for the. rule why candidates should be made liable for acts done by their agents. Mr. Justice Blackburn refers to it in the, Taunton case (1 O'M. & H., 184) in these words : " The- rule of parliamentary election law, that a candidate is, responsible for the corrupt act of his agent, though he himself not only did not intend it or authorize it, but hoTiafide did his best to hinder it, is a rule that must at, all times fall with great hardship upon particular persons.. But I may just mention the considerations which, no. doubt, led the common law, as I may call it, of Parlia- ment to establish it. Corruption, as we all know in practice and in fact, is seldom or never done by the, hand of the candidate. The two modes in which it was found in practice that corruption was carried on were these ^ persons were put forward to do all the work of canvassing and conducting an election, and these persons acted cor- ruptly ; but the candidate purposely kept himself out of the knowledge of anything about the matter, so that he might have the full benefit of their services; and were it not. for this rule which has been established, he would not suffer for their mis4eeds. That is one of the great reasons.. 128 PROVINCIAL ELECTIONS. [a.D. Another great reason would be that no doubt people were put forward as to whom the candidate was carefully kept from knowing they were spending any money, or doing' anything, with the notion, according to the loose morality that prevailed in election matters, that when the time for petitioning was past, those persons might come to him and say, ' I did spend that £1,000 for you upon the elec- tion ; of course I did not tell you about it, or say a word about it at the time, but now you are bound in honor to repay me that £1,000 of which you had the benefit; ' and which, in point of fact, the candidates did feel themselves bound in honor to pay. This, therefore, was another reason for the parliamentary law declaring that the candidate should be responsible for the act of his agent." I think, under the decided cases and the rules applicable to these trials, that I ought to hold that the respondent was duly elected. I am of opinion, however, that it was and is for the interest of the public that the matters brought forward in this case should have been inquired into, and I shall not allow the respondent any costs. The respondent himself subscribed a large sum of money, and was aware that a considerable sum was being expended by others, and he himself directed the payment of any further amount that would be required. He was therefore cog- nizant that these expenditures were going on, and exercised no supervision over them, and I do not feel inclined to draw any distinction as to costs in relation to any of the matters contained in the petition. I direct that each side bear their own costs. (5 Journal Legis. Assem., 1871-2, p. 11.) 1871. J BROCKVILLE. 129 BROCKVILLE. Before Chief Justice Hagarty. BROCKVILLE, ^6th to 30th June, 6th and 6th July, 1871, and 9th January, 1872. Samuel Flint, Petitioner, v. William Fitzsimmons, RespoTident. Scrutiny — Property Qualification of Voters — Aliens. Where a voter, properly assessed, who was accidentally omitted from the Voters' List for polling subdivision No. 1, where his property lay, and entered in the Voters' List for sub-division No. 2, voted without question in No. 1, though not on the list, his vote was held good. — William Little's vote. A.'s name appeared on the Assessment Roll and Voters' List as owner, but no property appeared opposite his name ; just below A. 's name, the name of B. was entered as tenant, with certain property following it, but B. 's name was not bracketed with A. 's. Evidence was admitted to show that A. owned the property next below his name, for which B. his tenant was assessed as tenant, and A. 's vote was held good. — James. Baker's vote. The widow of an intestate owner continuing to live on the property with her children, who own the estate and work and manage it, should not, till her dower is assigned, be assessed jointly with the joint tenants, nor should any interest of hers be deducted from the whole assessed value. Where, therefore, four joint tenants and such doweress occupied property assessed for $900, the joint tenants were held entitled to the qualification of voters. — Jeremiah Oilroy's vote. Where a husband had possession of a lot for which he was assessed as occupant and his wife as owner, but which belonged to the wife's. daughters by a former husband, his vote was held good. — Thomcis Whahy's vote. Where the owner died intestate, and the husband of one of his daughters; leased the property and received the rents, such husband was held not entitled to vote. — Edward Leslie's vote. Where it was proved that for some time past the owner had 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 — the son's vote was held good. — Jame,-iOaldwell, John A. Moore, and Charles Smith's votes. Where it was proved that an agreement exists (verbal or otherwise) that the son should have a share in the crops as his own, and such agree- ment was bona fide acted on, the son being duly assessed, his vote was held good ; the ordinary test being : had the voter an actual existing interest in the crops growing and grown ? — Ihid. But where such crops could not be seized for the son's debt, the son was not entitled to vote. —Ross Francis' vote. Where the agreement did not show what share in the crops the son was to have with his father, and it appeared to be in the father's discretion to determine the share, such son was not entitled to vote. — John John- son's vote. Where a father was by a verbal agreement "to have his living off the place," the son being owner and in occupation with the father, the father was not entitled to vote. — Samuel Wiltse's vote. 9 130 PROVINCIAL ELECTIONS. [A.D. A tenant from year to year cannot create a sub-tenancy nor create a right to vote by giving another a share in the crops raised on the leased pro- perty. — A. D. Dunham's vote. Where a man occupied a house as toll collector, and not in any other right, he was not qualified to vote. — William McArthur's vote. An alien who came to Canada in 1850, and had taken the oath of allegi- ance in 1861, but had taken no proceedings to obtain a certificate of naturalization from the Court of Quarter Sessions, was held not qualified to vote. — Alanson Bacon's vote. Kor was an alien, whose father had taken the oath of allegiance on obtaining the patent for his land under 9 George IV., i;. 21, qualified to vote. — George Healey's vote. The evidence that the parents of a voter had stated to such voter that he was born in the United States, but that his father was bom in Canada, received, and the vote held good. — Silas Wright's vote. ■ The petition contained the usual allegations of corrupt practices, and claimed the seat for the defeated candidate Jacob D. Buell. The votes were : For the respondent, 620 ; for Jacob D. Buell, 613 ; majority for respondent, 7. Mr. Bethune, Mr. J. K. Kerr, and Mr. C. F. Fraser, for petitioner. Mr. J. Hilly ard Cameron, Q.C., and Mr. J. Deacon, for respondent. The evidence on the charge of corrupt practices is set out in the special case, p. 139, post. The following are some of the material points decided on the scrutiny of votes. William little's vote. James Jessup, Clerk of Peace : I produce Voters' List for fifth subdivision, Elizabethtown. The voter's name is not on list five. There are six lists. I produce the Voters' List for polling subdivision four. The name William Little is on that list for part of lot thirteen in the seventh concession. Stafford MoBratney : I am Reeve of Elizajbethtown. The road allowance between lots twelve and thirteen is the division line between polling subdivisions four and five. Little's land lies in polling subdivision number five. On examining the Poll 'Book, it appeared that the voter voted at polling subdivision number five. Hagarty, C. J. — It is clear the man had a good vote, and voted in the proper division, but his name was on the 1871.] BROCKVILLE. 131 list for the adjoining division, and not on the list for his own division. The vote was not questioned at the poll. I would not willingly disfranchise a man because a mistake had been made. My impression is strongly in favoi of the vote. Vote held good. JAMES baker's vote. Petitioner put in the Assessment KoU and Voters' List on which appeared the name of James Baker as owner, and a blank opposite ; but on the line immediately under was the entry, Benjamin Leviston, tenant, E. ^ 35, 10, no bracket connecting the entries. Counsel for the respondent proposed to call evidence to explain the entry, which was objected to by the petitioner. The Chief Justice ruled that evidence could be given to explain the entry, and to show that the voter owned the property next below his name. William Stafford : Am Deputy Reeve. I know the lot (35 in 10 Con.) ; the voter owns the lot. About a year ago Leviston was his tenant, but he left before the elec- tion, and Baker has since lived on the lot. Hagaety, C. J. — It seems to be all brought down to the omission of a bracket in the Assessment Roll and Voters' List. I think I cannot strike off the vote. Vote held good. JEREMIAH GILROY'S VOTE. Jeremiah Gilroy : I live on the property. It belongs to me and my two brothers. The assessors put mother's name down as owner. Father died one year iago last December, without a will. He left seven in family. Three lived at home last year ; four part of the time. My sister married, August, 1870. In spring four lived there. Last August got a deed of release from two of my sisters whom we paid off — I, William, Joshua, and my sister Mary. Three are away. No assignment of dower has been made, or anything done about dower. Mother leaves us to manage the farm. I am assessed as occupant. 132 PROVINCIAL ELECTIONS. [A.D. Hagarty, C. J. — The point in this case is that the pro- perty is assessed at $900, and that four children and their- mother are actually in possession. Their mother is entitled to dower, but her dower has not been assigned to her. I hold therefore that the mother should not be rated jointly with the children, who are the joint tenants ; and as the- property is sufficient to give a qualification to four, the-, vote is good. THOMAS WHALEY'S VOTE. Thomas Whaley ; I voted on number sixteen Elizabeth- town. I live in Yonge. I own part of sixteen in the-^ fourth concession, but can't describe the part. The south end is the front. It is the rear part I own ; about seventy- five acres. It is my wife's property. No one lives on it. We were married in September, 1869. She lived in Yonge. Never lived in Elizabethtown. She was the widow of' Toxton. He died intestate and left four daughters. I worked on the place in 1870. It is meadow and pasture. I put up some fences, picked off" stones. This was in June,, part in April. Got the hay crop off" in July. I was. assessed as occupant, she as owner. I am not sure how my wife got it. I did statute labour and paid taxes. Hagarty, C. J., held the vote good. EDWARD Leslie's vote. Edward Leslie : I live at Prescott. I voted on property on Buell Street. My wife is a part owner. Her father bought it, and died intestate five years ago ; left two chil- dren, a son and my present wife. He had a daughter, who died leaving children. I am assessed as owner. Cross-examined; I lease the place to the tenant. My brother-in-law at Owen Sound never has interfered. I married two sisters, and had issue by my first wife, I then married my second wife. Father died after death of my first wife. I receive all the rents and profits. My brother-in-law never claimed or got anything. My wife's mother is living. I sometimes gave her something. The assessed value is $700. I have received the rent for fivCi 1871.] BROCKVILLE. 133 years. During all that time my brother-in-law has never ■claimed or received any share of rent. I hand over the whole to my mother-in-law. He knows I pay all to her. She gives most of it to my wife. She does as she likes. I would not question her as to it. He has been often down and knows all about this. The eldest child by first wife is eighteen. There is one other younger ; both are alive and always live with me. Hagakty, 0. J., held the vote bad. JAMES Caldwell's vote. James Caldwell : I live with my father on number six, second concession. I am thirty ; a single man. I work the place. Father gets his share, i.e., his living. Our bargain was I should work the place, give him his living, and I have the rest. This was made nine years ago Father works at his trade in Brockville, coming home every Saturday night ; he does not do any of the farming. Mother and sister and three brothers younger than me live at home. Two of the boys work at father's trade. I have had surplus profits. There was a debt on the farm when I got it ; it is pretty nigh cleared off it ; part of the profits went to pay it. I have been seven or eight years on the roll. Sometimes I pay the taxes ; sometimes my father. He was to pay the taxes part of the time. No bargain made to any account. I occasionally worked .a few days elsewhere ; the place did not keep me in work aU the time. Last fall I told collector that father was to j)ay taxes ; 1 afterwards paid them myself. I dare say father will repay me. Cross-eximined : I' could do as I liked with all that came from the place. I was not bound to pay off the debt ; no time was fixed. I suppose father could turn me away. Hagarty, C. J. — I hold the vote good. JOHN A. MOORE'S VOTE. John A. Moore : I live on east half seventeen, in the fifth concession. I live with my father. T am twenty- 134 PROVINCIAL ELECTIONS. [A.D. nine. He owns it. I made a bargain ; I was to live with him, keep him in his lifetime, and have all the produce for my use, and he was to leave it to me at death. This was made five years ago last winter. It has been acted upon since, and I have occupied on that agreement. Father takes no part ; he is near seventy. I am married, and live with wife and children in same house with him. No others of family there. The stock belongs some to him, some to me. My wife had some cows and sheep. I Jiave raised a good many stock. Two or three of the cattle belong to father. The crops are mine ; I find the seed. Hagabty, C. J., held the vote good. CHARLES smith's VOTE. David Smith: I live on thirteen. I own twenty -five acres. Voter lives with me. He has taken charge of all the business. No agreement between us. Gross-examined : He has all the crops. I told him he could take all ; all I wanted was my living out of it. This was eight years ago. He owns all the stock ; I own nothing but the land. He can do as he likes. He is thirty ; unmarried. He has to keep me and my mother. I look to him for support whether crops or not. I let him do as he likes. He has raised all himself. I bother no more than a stranger. I have nothing to do with it. Hagarty, C. J; — I hold the vote good. ROSS FRANCIS' VOTE. Ross Francis : I live with my father on fifty acres. He owns it. My sister lives there, and a brother boards there. About four years ago I agreed to work place. I was to have all raised above what would support family. Father works when he likes. I am to have it at his death. I have had my clothes. Cross-examined : I pay taxes. I manage all. If no crop or produce, I do not understand I am bound to support them. 1871.] BROCKVILLE. 135 John Francis : The arrangement was that he was to sup- port me and my wife and a daughter ; to have all that remained after supporting us, to do as he pleased with, and have the place at my death. Crop or no crop, he was bound to support me. Cross-examined : He was to support us oif the place before he would get any of the surplus. The place has, supported us. All I wanted was that we should be sup- ported. It could not be seized for his debt, I think, until we were supported. Hagarty, 0. J, — I hold the vote bad. ■ JOHN JOHNSTON'S VOTE. John Johnston : I live on twenty-two and twenty-three. I lived with .my father when assessment made. I am twenty -four, and left father last March. I was working on shares with father when assessment made. Two years ago last fall I went back to work with father. The bargain was that I was to have a shai-e in what was raised, crop and hay. I and father to have all. No certain share mentioned. I was to have a share of what was raised. The team was mine. I expect he would have more than me. I had confidence in him. He was to give me what he thought was proper, or he thought he could bear. The family had to be supported. This bargain was made in fall of 1869. Last fall we had a good crop of grain ; hay poor, five or six tons. My team and his ate the hay up. We bought hay this spring ; I was to pay half of price. We raised wheat, oats, peas, etc; wheat was ground. I got what flour was wanted, and what I want this year. I fed my team on my share of oats. I got peas to sow this spring in my present place^four bushels ; could get more if I wanted them. Hagarty, C. J. — I hold the vote bad. SAMUEL WILTSE'S VOTE. Samuel Wiltse: I Voted on part of twenty-one and twenty-two ; I voted as occupant ; my son owns it. I said if he went on, and paid for the place, all I wanted was a 136 PROVINCIAL ELECTIONS. [A.D. liouse for myself and wife. We all live together. My son works it ; I do what little I can. He is paying for it. Cross-examined : I first bought it in my own name from one Boyd. I expect he has got the deed, but don't know. I paid a little when I first bought it, nine years ago. I told Boyd to give him a deed, and he did so. I control it as much as he does. Stephen Wiltse, his son : I got a deed of this from Boyd. The understanding was that father was to get his living off the place, also mother. He has occupied ever since. I am not always there. Father minds the place when I am away. I would have no right to turn him out. Cross-examined : I bought it subject to a mortgage of $800 ; $500 has been paid on it. Father was to have his living ofi" the place and I was to take the place. No agree- ment as to farming on shares. I do not think I could turn him out. Hagarty, C. J. — The son owns the fee, and is also occu- pier. I can see no interest in the father to support a vote. The verbal promise, even if there was a good consideration for the bargain, cannot I think avail ; I hold the vote bad. A. D. Dunham's vote. Martin Hays : I own lot twenty -three, first concession. No writing made. I made verbal arrangement with William Dunham, eleven, or twelve years ago. He pays $30 per annum; he pays every two months. Cross-examined : Three or four years ago he asked me to give the receipts in his wife's name, Jane Dunham ; I did nothing more than hand receipts in wife's name. The voter is her son, and lately has paid me rent, and I still give receipt in wife's name. 1 never agreed to alter tenancy. They all live together. One payment was made by the son, at all events, this April or May. Counsel for the petitioner proposed to give evidence that the father had agreed to the son working the place ' on shares. Hagarty, C. J. — Even if that were proved the vote would not be good. The son has no definite interest in 1871.] BEOCKVILLE. 137 the land. At present I must hold that a tenant from year to year, whose tenancy was liable to be put an end to by a, six months' notice, could not carve out a lesser interest in favor of a sub-tenant. He cannot create a vote by giving a share of the crop to his son. Vote held bad. WILLIAM MCABTHUK'S VOTE. Peter McLaren : Voter lives at the toll-gate number one. He is paid monthly for keeping it. I think he had some land rented for pasture. He gets six dollars per month and use of the house. The toll-house is on the road. The road belongs to the Lowell Eoad Company. William Mc Arthur, the voter : I was engaged at six ■dollars a month and the house. I keep the gate and collect tolls. I don't think they could turn me out during the month. Hagaett, C. J. — The man was only a servant of the company, and occupied the house only as toll collector. The company could turn him out at a moment's notice. Vote held bad. ALANSON bacon's VOTE. Alanson Bacon : I was born in the United States ; so was my father. I took the oath of allegiance ten years ago. I produce it, dated the 9th July, 1861. I have been twenty-one or twenty -two years in Canada. I think I came in 1850, about midsummer. Hagarty, C. J. — Held that as the voter had not taken the necessary proceedings to obtain a certificate of natural- ization from the Quarter Sessions, his vote was bad. GEORGE HEALEY S VOTE. George Healey : I was born in the United States ; I un- derstand I came to Canada forty -nine years ago, when a year old. My father lived at Potsdam, in the United States. He was born in the United States, as I under- stood. Father died twenty-one years ago. I never took the oath of allegiance. Grandfather came from Vermont, as I heard. 138 PROVINCIAL ELECTIONS. [A.D. Cross-examined : My father took the oath of allegiance ; he had to do so before he got the deed of his land. [The Chief Justice. — That would be before he got his patent under 9th Geo. IV., c. 21.] I suppose he took it in Prescott. The land he got was lot three in the seventh concession of Elizabethtown. Hagarty, C. J., held the vote bad. SILAS WRIGHT'S VOTE. Silas Wright: I understood from my parents I was born in Morristown, New York. I understood my father was born in Canada. I have lived here from infancy. I am 33 now. Hagarty, C. J., held the vote good. At the close of the scrutiny, and at the request of the parties, a special case, setting forth the evidence on the charge of corrupt practices, was reserved for the opinion of the Court of Queen's Bench, counsel for the petitioner stating that except as to the selling and giving liquor on the polling day, as set out in the .special case, they had no further evidence to oifer. The special case (see post p. 139) was then settled, and the Election Court adjourned until the 9th January, 1872. On the reassembling of the Court, the following consent was signed by Counsel and put in : " The Court of Queen's Bench having given judgment in favor of the respondent in the special case stated for the opinion of the said Court, it is hereby consented and admitted that there is no further evidence to be offered by either party. And it is admitted that the respondent has a majority of votes on the scrutiny, and is entitled to the -seat; and it is consented and agreed that the said respondent be declared duly elected ; and that each party do pay his own costs of the said petition and proceedings taken thereon." Hagarty, C. J. — I therefore decide that the respondent has been duly elected, and that each party do pay his own costs (as agreed). And I shall report the same to the Speaker. (5 Journal Legis. Assent., 1871-2, p. 48.) 1871.J BROCKVILLE. 139 ,BROCKVILLE. Before the Court of Queen's Bench. Samuel Flint, Petitioner, v. William Fitzsimmons, Respondent. Controverted Election — Oorrupt Practices — "Illegal and Prohibited Acts in Reference to Elections" — Selling and Oiving Liquor — Carriage of Voters — RigM to Reserve Questions of Law—3£ Vic., cap. £1 ; 3j^ Vic, cap. 3. Upon questions reserved by the Rota Judge under "The Controverted Elections Act of 1871," it appeared that H>. and B. voted for respond- ent. H. kept a saloon, which was closed on the polling day ; but upstairs, in his private residence, he gave beer and whiskey without charge to several of his friends, among whom were friends of both candidates. B., who had no license to sell liquor, sold it at a place near one of the polls to all persons indiHerently. This was not done by H. or B. in the interest of either candidate, or to influence the election, B. acting simply for the purpose of gain ; and the candidate did not know of or sanction their proceedings. Held (though with some doubt as to B.), that neither H. nor B. had committed any corrupt practice withjn sec. 47 of 34 Vic, cap. 3, and therefore had not forfeited their votes ; for they had not been guilty of bribery or undue influence, and their acts, if illegal and prohibited, were not done " in reference to " the election, which, under sec. 47 of 34 Vic. , cap. 3, is requisite in order to avoid a vote. The words ' ' illegal and prohibited acts in reference to elections, " used in sec. 3, mean such acts done in connection with, or to affect, or in reference to elections ; not all acts which are illegal and prohibited under the election law. The right to vote is not to be taken away or the vote forfeited by the act of the voter unless under a plain and express enactment, for it is a matter in which others besides the voter are interested. One M. , a carter, who voted for respondent, at the request of P. , the respondent's agent, carried a voter five or six miles to the polling place, saying that he would do so without charge. Some days after the election, P. , the agent, gave M. $2, intending it as compensation for the conveyance of such voter to the poll, but M. thought it was in payment for work which he had done for P. as a carter. The candidate knew nothing of the matter. Held, that there was properly no payment by P. to M. for any purpose, the money being given for one purpose and received for another ; but that if there had been, it was made after P.'s agency had ceased, and there was no previous hiring or promise to pay, to which it could relate back. If such payment had been established as a corrupt practice, it would have avoided P. 's vote, but not M. 's ; and it would not have defeated the election, for it was not found to have been committed with the knowledge or consent of the candidate, but the contrary. Qucere, whether, under 34 Vic, cap. 3, sec. 20, the Rdta Judge has power, before the close of the case, to reserve questions for the Court. 140 PROVINCIAL ELECTIONS. [A.D.^ This was a case stated under the Controverted Elec- tions Act of 1871, and reserved by the Judge trying the Election Petition {ante p. 129) as follows : At the above Court, holden on the 26th, 27th, 28th, 29th, and 30th days of June, and on the 5th and 6th days of July, A.D., 1871, before me, the Honorable John Hawkins Hagarty, Chief Justice of the Court of Common Pleas, and one of the Judges on the rota for the trial of election petitions, the above named petitioner charged by his petition that the said respondent was not duly elected 'or returned, and that the said election was void, by reason that the said respondent and his agents, with a view of promoting the election of the said respondent, caused certain hotels, taverns, and shops, in which spirituous or fermented liquor or drinks were, at the time of the said election, ordinarily sold, to be opened and kept open on the day of polling votes at said election, in the wards and municipalities in which said polls were held, and caused spirituous and fermented liquors and drinks to be sold and given to divers persons within the limits of the said town of Brockville and the Township of Elizabethtown during the day of polling votes at the said election ; and hired certain horses and vehicles, and promised to pay for certain other horses and vehicles, and did pay for the •same, to convey voters to or near or from the polls or polling places, or the neighborhood thereof, at the said 'election; and also by reason that divers persons who were guilty of the above practices voted at the said election for the said respondent. And the said petitioner by the said petition prayed the said seat, or a scrutiny, and that on such scrutiny the votes of the said persons who were guilty of the above corrupt practices should be struck off the poll. Upon consideration of the evidence adduced on behalf of the petitioner as to the said charges, I find as follows : 1. As to George Houston. I find that George Houston, one of respondent's voters, was a saloon-keeper in Brock- ville ; that on the polling day his saloon was closed and 1871.J BROCKVILLE. 141 locked ; that up stairs, in a room in his private residence,, he had beer and whiskey on a table ; that many of his friends, perhaps to the number of twenty to thirty, were that day, at different times, up in this room, and had liquor ; that no pay was taken or expected, nor any charge made for this ; he told any of his friends who were in the habit of coming to his saloon that they could have a drink upstairs ; that friends of both candidates were there on his invitation, and some not voters ; that he was under the impression that so giving this liquor was not violating the law ; that this was not done to influence any vote or voter by means of liquor ; that it was not done in the interest of either candidate, nor to , produce any effect on the election or its result ; and that the respondent did not know of or sanction these pro- ceedings. 2. As to Samuel Burns. I find that Samuel Burns had no license to sell liquors ; that he voted for respondent ; that he sold liquor to all persons that asked and paid for it on the polling day at a place near one of the polls in the township ; that he sold to persons, voters and others, without reference to their side or politics ; that this was not done in the' interest of either candidate, or to affect the election or its result, but simply for the sake of gain ; and that the respondent did not know of or sanction these pro- ceedings. 3. As to the charge of conveying voters to the poll. I find that WiUiam McKay, a carter in Brockville, and a voter for respondent, did, at the request of Thomas Price, an agent of respondent, carry an old man named Paul, a voter for respondent, a distance of five or six miles to the polling place ; that McKay was aware on the polling day- that it was illegal to carry voters for hire, and had ex- pressed his willingness to carry voluntarily and free of charge, being anxious to help the respondent ; that when Paul was spoken of, Price asked McKay could he, McKay, not carry him to the poll, and McKay said he would do so without charge, and that no hiring or payment was , 142 PEOVINCIAL ELECTIONS. [A.D. then contemplated between them ; that some days after the election Price gave McKay $2, considering that McKay was a poor man, and that he ought to give him something, and paid him the money intending it as a compensation for so carrying the voter ; that McKay did not receive it as such, but received it thinking it was in payment for some work he had done for Price as a carter in his ordinary business, and that there was an account between them for work in or about the amount of that sum ; that when the $2 were paid, nothing was said about carrying the voter ; that the respondent knew nothing of this matter, and never authorized or sanctioned it. The opinion of the Court of Queen's Bench is requested: 1st. What is the legal effect of the payment by Price, an agent for respondent, to McKay, as found by me ; whether it was a " corrupt practice," and, if so, did it avoid the vote of Price or McKay, or of both, as voters for respondent, or does it avoid the respondent's election? 2nd. Whether the giving or selling of liquors, as found by me, in such cases as Houston or Burns, avoided the votes of the said persons, or either of them ? (Signed), John H. Hagaety, C.J., C.P. The case was argued before the Court of Queen's Bench in Michaelmas Term, 1871. Mr. Bethune appeared for the petitioner. The question as to the votes of Houston and Burns, arises under the Ontario Act, 32 Vic, cap. 21, sec. 66, which requires all hotels, taverns, and shops in which liquors are ordinarily sold, to be closed during the polling day, and forbids any liquor to be sold or given to any per- son within the municipality during such period, under a penalty of $100. The amending Act, 34 Vic, cap. 3, had two objects^to change the mode of trial, and more effec- tually to prevent corrupt practices at elections. In it, by sec. 3, a definition of corrupt practices is for the first time given, and it could hardly have been more comprehensive- It includes all " illegal and prohibited acts in reference to elections, or any of such offences, as defined by Act of the 1871.] BROCKVILLE. 143 Legislature." The acts of both of them were clearly pro- hibited an^i contrary to the statute, and were therefore corrupt practices, Salford case (1 O'M. & H., 134). Their votes are both bad, therefore, under sec. 47 of 34 Vic, which declares th^t any corrupt practice committed by an elector voting at an election shall avoid his vote. There is no clause expressly against " treating," as in the English Act, where it is provided for specially. Sees. 61 and 66 of our Act, 32 Vic, cap. 21, provide against it in effect, and are very stringent, making no exceptions even for medical purposes, though perhaps that might be im- plied. No question as to intention can arise under sec. QQ, as under sees. 61, 63, 67, nor as to agency, as under sec. 71. As to Price's conduct, the 34 Vic, cap. 8, sec. 47, avoids his vote. His act was one of agency on behalf of. the respondent. The intent of the agent is of no conse- quence ; and the principal is affected by his act, although the agent was not employed for the purpose in which he violated the Act: Coventry case (1 O'M. & H., 107) ; Taunton case {Ibid. 184) ; Blackburn case (Ibid. 201). His act was an offence against sec. 71. The payment he made after the election was intended as compensation for carrying the voter, and although the agency had terminated, yet such payment, being connected with the precedent act of the agent, related back to the time when the service was performed, by analogy to the doctrine of ratification, Limerick case (1 O'M. & H., 261). The statute, under the Interpretation Act, 31 Vic, cap. 1, sec. 7, sub-sec. 39, should be liberally construed, so as best to ensure the attainment of its object. Votes are given on certain con- ditions, which must be observed. [Wilson, J. — Is that so ? Is it not rather a right, of which these provisions are merely safeguards ?] If a prohibited act be done by a candidate, it avoids the election ; if it be done by a voter, it avoids his vote; if done by another, it subjects the person to a penalty. Mr. J. H. Cameron, Q.O., contra. It is not pretended the election can be avoided excepting by reason of the pay- 144 PROVINCIAL ELECTIONS. [A.D. ment by Price. As to the matters relating to Houston and Burns ; the acts prohibited by sec. 66, before referred to, are not necessarily connected with elections at all. Hotels, &c., are required to be closed during the polling day, and no liquor is to be sold or given that day under a. penalty. The election may be over early in the -day ; but at whatever hour the poll is closed, the hotels, etc., must be kept closed the whole of that day, from the earliest hour in the morning till midnight. The illegal or pro- hibited act, to be a " corrupt practice," and to avoid a. vote, must be an illegal or prohibited act " in reference to elections," which these acts were not. The heading of " Prevention of Corrupt Practices at Elections," before sec. 67, cannot be held to govern all the sections down tO' sec. 74 ; for sec. 72 defines what shall be deemed to be "undue influence." There is no necessity to hold any act to be a corrupt practice unless it be expressly declared to be so, because all prohibited acts have some penalty or other attached to them. Houston and Burns may be subject to a penalty under sec. 66 ; but their votes are good, and cannot be disallowed. As to Price's case : Agency, if established at the time he employed the team, must be shown to have continued up to the time when he paid the money. There was no proof of hiring under 32 Vic.^ cap. 21, sec. 71 ; and the act of payment was a voluntary act of Price after the election was over, made not on account of the service rendered, but from charity, and not for the candidate, but for himself, and in his business. There was no agency existing then. A payment must be the act and intent of both ; such intent was absent from the minds of both, but if absent from the mind of one>. that is sufiicient to make it no payment. Price's act, if within sec. 71, merely destroys his vote, and subjects him to a penalty ; it does not defeat the election. Nothing will avoid the election unless, under the 46th sec. of 34 Vic, cap. 3, a corrupt practice be reported by the Judge to have been committed by or with the knowledge and con- sent of the candidate. An election committee has much 1871.J BROCKVILLE. 145 greater power in this respect under cap. 21, sec. 69. The argument may be thus shortly re-stated : 1 . Price was not an agent at the time of the payment. 2. If he were, the payment was not with the knowledge and consent of the candidate. The election, therefore, cannot be avoided, 3. Price did not hire any team ; his vote, therefore, cannot be struck off'. Houston's- and Burns' votes are good ; at most their acts were prohibited, and they may be subject to a penalty. Where the Legislature has declared that a vote shall be lost for a particular cause, it does not intend that it shall be forfeited for any other cause. Mr. Bethune, in reply. Selling or giving liquor does avoid, the votes. As to what is undue influence, see Hiigiienin- V. Baseley (14 Ves., 272 ; and in 2 White and Tudor, L. C, 504, 3rd ed.). It differs in its nature from an illegal or prohibited act, If the 47th section is not more extensive than the law was before, it is of no value. JSntertainment it is not said shall avoid the election ; but it does so because it is a prohibited act. The 43rd section of the Imperial Act is the one which has not been adopted in our Act. As to Price's act, it avoids the whole election ; but at any rate his vote is avoided by the 71st section. Most of the payments in such cases are made after the election. He referred to the cases already decided under this act : The Glengarry case, before Hagarty, C.J. (ante, p. 8) ; North York case, before Gait, J. , {ante, p. 62); North Simcoe cc(se, before Strong, V. C. (ante, p. 50) ; and the South Grey case, before Mowat, V.C. (ante, p. 52). Wilson, J. — The particular cases referred to us by the learned Chief Justice of the Common Pleas, are — Istly, that of George Houston. He voted for respondent ; was a saloon-keeper in Brockville. On the polling day his saloon was closed and locked. Upstairs, in a room in his private residence, he had beer and whiskey on a table. He gave it to those who came without pay or expectation of it. It was not done in the interest of either candidate, 10 146 PROVINCIAL ELECTIONS. [a.D. nor to influence any vote or voter, nor to produce any effect on the election ; nor did the respondent know of or sanction it. 2ndly. That of Samuel Burns. He had no license to sell liquors. He voted for respondent. He sold liquor on the polling day, near a poll in one of the townships, and charged for it. He sold it to persons without reference to their side or politics. In other respects, his case is similar to that of Houston. These two cases may therefore be considered together. The part of the 32 Vic, cap. 21, sec. 66, which applies to these cases, is the latter part of it : "And no spirituous or fermented liquors or drinks shall be sold or given to any person within the limits of such municipality during the said period " {i. e. during the day appointed for polling), " under a penalty of $100 in every such case." And it was argued that because they had infringed the provisions of this section, the one by giving and the other by selling liquor, they had not only incurred a penalty, but had forfeited their votes; that such giving and selling were prohibited acts, and were within the provisions as to corrupt practices. The deprivatioii of the right to vote, or the forfeiture of a vote already given, is not to be imposed as a penalty upon any one, unless under the express enactment of the Legislature. There are other persons interested in and affected by that vote beside the voter. The candidate for whom he has voted is interested in it, and so are the whole body of electors who have voted for the same candidate. One vote has and may again influence or change the result of an election, and that is not to be brought about by merely inferential or argumentative legislation, or as to what the Legislature must have intended. There must be a plain enactment declaring that the vote shall be rejected if tendered, or shall be struck off if given, to justify the •disallowance of it, and, as a consequence, to double the penalty on the voter, and so seriously to affect the rights, privileges and interests of others dependent on the vote. 1871.] BROCKVILLE. 147 What, then, has the statute said on this point ? 32 Vic, cap. 21, sec. 70, declares, that on its being proved before any election committee that any elector voting was bribed, his vote shall be null and void. What bribery is under that Act, is explained by sections 67 and 68 ; the acts stated are not acts of bribery ; the first of these sections has the caption of " Prevention of Corrupt Practices at Elections." The 34 Vic, cap. 3, sec. 3, declares that " ' corrupt prac- tices' or ' corrupt practice ' shall mean bribery aqd undue influence, and illegal and prohibited acts in reference to elections, or any of such offences, as defined by Act of the Legislature." The 47th section enacts that, " If on the trial of any election petition, it is proved that any corrupt practice has been committed by any elector voting at the election, his vote shall be null and void." It is undfer this section that the votes of Houston and Burns are said to be void. It is said they have each been guilty of a corrupt practice, not by reason of having committed bribery, but by reason /-of their having exercised undue influence, or from their having done illegal and prohibited acts, in consequence of ' the one having given liquor and the other having, sold it on the polling day. It is quite plain that undue influence and illegal and prohibited acts in reference to elections must be corrupt practices, when the Legislature has declared they shall be so. Firstly. Were the giving and selling of liquor acts of undue influence ? The meaning of that term is explained and defined by the 32 Vic, cap. 21, sec. 72, and it is quite manifest that the acts charged against Houston and Bums are not within that category. Secondly. Were the giving and selling of liquor, as before stated, " illegal and prohibited acts in reference to elections ?" It is necessary to settle what the meaning is of " illegal and prohibited acts in relation to elections." Does the 148 PROVINCIAL ELECTIONS. [A.D. expression mean generally all illegal and prohibited acts under the election law ; or does it mean illegal and pro- hibited acts when and because they are done in connec- tion with, or to affect, or in reference to, elections ? In the one case, giving and selling liquor, however dis- connected with the election they may be, will, if done within the municipality during the election, be illegal and prohibited acts, and as a consequence will be corrupt practices. In the other case, such acts will not constitute corrupt practices, unless they are shown to have been done to influence or to affect the election, or in some way to have been done in connection with it. The section in which the illegal and prohibited acts in relation to elections are named, contains the election law offences of bribery and undue influence, both of which acts have and musti necessarily have a direct and insep- arable relation to the actual electoral contest, and to the proceedings anterior to it. Bribery and undue influence in general are not prohibited, but bribery and undue in- fluence in relation to elections only. Why then should any greater effect be given to the other words of the section, " and all illegal and prohibited acts," and more especially as the words " in reference to elections," have been superadded ? It will be found also that the offences of entertaining electors, furnishing colors or badges, and carrying or wearing them, relate in like manner to the elections. The election law morality is very different from what morality is under the general law. The election law does not prohibit stealing, but it does prohibit the wearing of a party badge within the electoral division on the day of election or polling, or within eight days before such day, or during the continuance of the election. The thief may have on his person at the time he votes the watch of the returning officer, or of the candidate whom he supports, but he is an innocent man by the election law, and a good voter ; while the elector who has worn a party badge but 1871.] BROCKVILLE. 149 for five minutes anywhere in the electoral division, miles away from the polling place, within eight days before the election, is a criminal by the election law, and an illegal voter, although in fact a very honest respectable inan. The vote of the one, though not his person, will stand the strictest scrutiny. The vote of the other must fail. The thief has been guilty of no corrupt practice, but the wearer of the badge has. This cannot then be a'law to be enforced, unless the enactment be a plain and positive one- I do not think we should call every illegal and pro- hibited act by this special statute, which is intended to operate for a limited time, on a peculiar occasion, and for a particular purpose, a corrupt practice, against the pro- visions of that law, unless the act be shown to have been done in some way or other with a view to the election, or to bear upon it, or as connected with it, or in relation to it, or as calculated or intended so to operate. If any other construction be given to the statute, it will be attended wdth very oppressive and needless consequences of punish- ment and forfeiture. A general state of drinking and drunkenness at the time of the election among the electors and inhabitants of the locality, resulting from the dispensation of liquor, might well be deemed to be a dispensation of such liquor in relation to the election, although it were made without any special reference to the election. The state of mind, the influence and general condition of things it would in- duce, would tend naturally to disorder the proceedings, and to cause an untrue and improper expression to be given of the sober popular will. That was the case in the Tamworth case (1 O'M. & H., 85). But the giving or selling of liquor in consequence of a horse trade, or in payment of an old bet, or from mere friendship, or to test the quality of it as a medicine, or to be shipped abroad, or for any other purpose not " in refer- ence to the election," would not, in my opinion, be an illegal or prohibited act, so as to be a corrupt practice within the meaning of the statute. Nor do I think the 150 PROVINCIAL ELECTIONS. [A.D. giving or selling of liquor, though on the polling day, but after the poll was closed, and miles away from where the poll was held, would necessarily be an illegal and pro- hibited act in reference to the election, so as to amount to a corrupt practice {Coventry Election Petition, 20 L. T. N. S., 405). The 61st section of the 32 Vic, cap. 21, permits the can- didate and others acting for him, even with intent to pro- mote his election, to furnish entertainment to the electors, so long as it is done at the usual place of residence of the candidate, or of those who furnish it for him. Such enter- tainment, it would be dijBB.cult to say, should not include even a single glass of wine. The statutes contain many illegal and prohibitory acts besides the giving and selling of liquor on the day of the poll, and to hold them to be corrupt practices, although not done in reference to the election, would be hurtful to all parlies, and utterly unreasonable. By 32 Vic, cap. 21, sec. 57, sub-sec 3, any person dis- turbing the peace and good order may be imprisoned by the returning officer or his deputy, for a time not later than the final closing of the poll. Is the vote of that person to be rejected, or afterwards struck off, although his act had no reference to the election, but was occasioned by some great wrong done or provocation given to him ? By sec. 60 every person convicted of a battery com- mitted during any part of the election or polling day, within two miles of the place of election or poll, is to forfeit $50. Is that person also to forfeit his vote, although the battery had nothing whatever to do with the election, or happened after the election was over ? It appears to me these cases plainly answer themselves, and enable the matter with respect to the giving and selling of liquor to be as easily answered. The penalties are already quite severe enough, without increasing them against the voter, and extending them to the candidate, and to the other electors of the constituency, who suffer as well as the voter by the disallowance of his 1871.J BROCKVILLE. 151 vote, unless we are obliged by the most explicit enactment of the law to do so. In my opinion, on the case stated with respect to these persons, we are not required, and would not be justified, in avoiding their votes. The facts show that the giving and selling of the liquor were not acts done in reference to the election. On this point, I may how^ever say that I am more satis- fied with my conclusion as to the act of Houston, as to the giving of the liquor, than I am with respect to Burns, who sold the liquor in a place and under circumstances giving rise to some degree of suspicion. The other part of the case relates to the act of Price. His conduct is complained of on the ground of its having been an illegal and prohibited act in reference to the election, contrary to the 32 Vic, cap. 21, sec. 71. That section declares, so far as is applicable here, " that the hiring or promising to pay, or paying for, any horse," etc., " by any candidate, or by any person on his behalf," to convey voters at any election, shall be an illegal act, and the person offending shall incur a penalty of $100 ; and any elector who shall hire any horse, etc., for any candi- date, or for any agent of a candidate, for the purpose of conveying electors, etc., " shall ipso facto be disqualified from voting at such election, and for every such offence shall incur a penalty of .f 100." The section, it will be observed, is in two parts. The first part affects the candidate and his agent, by subjecting them to a penalty. The second part affects the electors, and besides subjecting them to a penalty, it disqualifies them from voting. Price was an agent of the candidate, and so,' as to the penalty, is within the operation of the first branch ; but he was also an elector, and so he is within the operation of the second branch, as to the loss of his right to vote. The case finds there was no hiring of McKay to carry Paul, the voter. McKay carried Paul at Price's request, but he carried him " voluntarily and free of charge." Some 152 PROVINCIAL ELECTIONS. [A.D. days after the election, Price, as compensation to McKay, gave him $2 for carrying the voter. McKay did not receive it as compensation, but in payment of work he had done for Price in his ordinary business as a carter. I do not see how McKay can be within the operation of the section at all. The hiring, or promising to pay, or paying for any horse, etc., applies to the candidate, and to any person on his behalf. That will extend to Price if he hired, or promised to pay, or paid McKay for any horse, etc. ; but it cannot extend to McKay, as he was at most the person hired, promised to be paid, or paid. Nor does the second branch apply to him, for that extends to the electors who hire others, and not to those who are hir^d. The case has to be considered, then, with regard to Price alone. At the time he voted — for I assume he did vote, as I gather so from the first question put in the case, and from the argument of counsel, though the case itself does not say he did — he was under no disqualification ; for he had not hired, promised to pay, or paid McKay, and there was no agreement or understandini; to do so, but the contrary; the service was to be, as in fact it was at the time per- formed by McKay, free of charge. In my opinion, the agency of Price terminated with the election — the occasion and the purpose for which he was employed. His subsequent payment was an unauthorized act as to his principal. It can relate back to nothing, for there was no hiring or promise to which it could attach. But as a fact it was not a payment ; that must' be the act and by the assent of both parties. When Price gave the money for one pui-pose, and McKay received it on another account and in respect of a different transaction, that was not a payment for the purpose that Price intended it for, more than it was a payment on the account for which McKay received it. It was properly not a payment to or for either one purpose or the other {Thomas v. CroHS, 7 Ex. 728). 1871.] BROCKVILLE. 153 In no view of the case, as the learned Chief Justice has found that the respondent knew nothing of the matter between Price and McKay, and never authorized or sanc- tioned it, could it be possible to avoid the election, even if Price's act had been determined to be a corrupt practice. For under the 46th section of the 34 Vic, cap. 3, the learned Chief Justice, to aifect the return, would have to "find that " the corrupt practice had been committed by or with the knowledge and consent of the candidate," whereas he has distinctly negatived that fact. I am not quite satisfied, as I stated during the argument, however convenient the practice may be, and however ■desirable it is that the law should be so, that the Eota Judge has power, until he is in a position to grant his cer- tificate, under the 34 Vic, cap. 3, sec. 20 — that is, until the close of the case — to reserve a question for the Court. Such question is to be reserved "in like manner as questions are usually reserved by a Judge, on a trial at Nisi Prius," and no Judge at Nisi Prius can stop a case in the middle, and adjourn it until he has some intermediate difficulty cleared out of his way by a reference to the Court. If there be any doubt in this respect, the Act should be amended. Assuming that the case is regularly before us, I shall answer the questions submitted as follows : 1. That there was no payment made by Price to McKay. If it were a payment, it was made by Price at a time when he was not an agent for the respondent, and with respect to a matter to which it could have no proper relation, for there was no antecedent hiring or promise to pay. The matter was, therefore, not a corrupt practice. If it had been a corrupt practice, it would have avoided Price's vote but not McKay's vote, for he was the person hired, if there'had been a hiring, and such a person is not deprived of his vote. This act, if it had been established to have been a cor- rupt practice, would not have defeated the election, because it has not been found to have been " committed by or with 154 PROVINCIAL ELECTIONS. [A.1>. the knowledge and consent of the candidate ;" on the con- trary, the very opposite fact has been found for the can- didate. 2. That the giving of liquor, as found by the case, by Houston, does not avoid his vote. I have more doubt as to the selling of liquor by Burns, but I am not so free from doubt as to find against him, on the case submitted. I am of opinion, therefore, that neither of their votes has been avoided. Morrison, J., concurred. (32 Q.B., 132). MONCK. Before Mr. Justice Galt. DuNNViLLE, $3rd- and 2Jith August, 1871, and 8th January, 187S. John W. Colliar et al, Petitioners, v. Lachlin McCallum, Eespondent Brihery — Special Case — Irregular Voters' List — Election not Affected — Amendment of Petition — Costs. An elector when aaked to vote for respondent said that it would be a day lost if he went to vote, which would cost him $1. To which the can- vasser replied, "Come out, and your $1 will be all right." Held, not sufficient to establish a charge of bribery. The Court of Queen's Bench on a special case (32 Q. B., 147), Held, 1. That the proper list of voters to be used at an election is " the last list of voters made, certified, and delivered to the Clerk of the Peace at least one month before the date of the writ to hold such election. " 2. That an irregular voters' list had been used in one of the townships in the Electoral Division ; but that the result of the election had not been afifected thereby, and that the election was not avoided. .3. That the Judge trying an election petition has power to amend the petition by allowing the insertion of any objection to the voters' list used at the election. The petitioners were ordered to pay the costs of the respondent up to the meeting of the Election Court, and the costs of the special case ; but as to the costs of the trial, each party was ordered to pay his own costs. The petition contained the usual charges as to corrupt practices, and claimed the seat on a scrutiny of votes for the defeated candidate, James D. Edgar. The vote was : For respondent, 931 ; for James D. Edgar, 926 ; majority for the respondent, 5. 1871.] MONCK. 155 Mr. Bethune, for petitioners. Br. McMichael, for respondent. The following evidence was given as to corrupt prac- tices. Adam V. Moot : I am a voter in this division. I voted for Mr. Edgar. David Winslow came to my house before the polling ; he asked me if I was coming out to vote. I said I did not know it would be worth my while, because I was a hired man. I said I would consider it a day lost if I went out to vote, which would cost me $1. He said : Come out, and your $1 will be all right. He was support- ing McCallum. Mr. Justice Galt held that the charge of bribery was not sustained. Evidence was then given to show that in one of the townships in the electoral division the list of voters was made up from the Assessment KoU of 1870, and was sworn to on the 13th August, 1870, but that it was not delivered to the Clerk of the Peace until the I7th March, 1871, during the election in question. It was also proved that the Voters' List of 1869 had been delivered to the Clerk of the Peace on the 19th August of that year ; and that there were 41 voters on the Voters' List of 1869 who were not on that of 1870. The writ to hold the election was dated the 25th February, 1871, and the election was held on the 14th and 21st March of the same year. Mr. Justice Galt thereupon reserved a special case for the opinion of the Court of Queen's Bench, setting out the above facts, and also submitting whether the Judge presiding at the trial had power to amend the petition. The Court of Queen's Bench (32 Q. B., 147) held that the Voters' List of 1869 should have been used at the election, it having been the one filed with the Clerk of the Peace " at least one month before the date of the writ to hold such election," pursuant to 32 Vic, c. 21, s. 7, subs. 156 PROVINCIAL ELECTIONS. [A.D. 10. But that as it was not shown that the vote of any one of the 41 entitled to vote by the list of 1869 had been rejected, nor that the use of the Voters' List for 1870, instead of that for 1869, had in any way affected the result of the election, the election was not avoided. The Court also held that the Judge trying the election petition had power to amend the petition by allowing the insertion of an objection to the voters' list used at the election. On the reassembling of the Election Court (January 8, 1872), counsel for the petitioners stated that in conse- quence of the decision of the Court of Queen's Bench, it was their intention to abandon the scrutiny. Mr. Justice Galt thereupon declared the respondent duly elected, and made the following order as to costs : The petitioners to pay the costs of the petition up to the meeting of the Election Court at Dunnville. Each party to pay their own costs of the trial before the Election Court. Petitioners to pay any witness fees actually paid to witnesses before the 5th January, 1872, except the witness fees of witnesses examined at the hearing at Dunnville. Costs of the special case to be paid by peti- tioners. (5 Journal Legis. Assem., 1871-2, p. 49). WEST YORK. Before Chief Justice Hagarty. Toronto, 5th and 6th September, 1871, and 8th March, 187^. Thomas Grahame, Petitioner, v. Peter Patterson, Bespondent. Notice of Disqtialification of Candidate — Postmaster — Office or Employ- ment in the Service of the Dominion of Canada — 31 Vic. , c. 10, and 3$ Vic. , c. 4, s. 1 — Special Case — Consent to Dismissal of Petition. The respondent, a postmaster in the service of the Dominion of Canada, became a candidate at an election held on the 14th and 21st March, 1871, and was elected. On the Hth March he resigned his office of postmaster, which was accepted by the Postmaster General on the 13th 1871.] WEST YOEK. 157 March. His accounts with the Post Office Department were closed and his successor appointed after the election. Evidence of the notoriety of the alleged disqualification of the respondent was given, which was that such alleged disqualification was a matter of talk, and that all the people at the meeting for the nomination of candidates were supposed to be aware of the supposed difficulty as to such disqualification. Held, that even if the respondent was disqualified for election, the Judge could not on such evidence declare that the electors voting for the respondent had voted perversely, and had therefore thrown away their votes, so as to entitle the petitioner to claim' the seat. Where a class of persons affected by the decision of a case is numerous, and the question involved is one of general importance, the Judge may reserve a special case for the opinion of the Court of Queen's Bench ; and the Judge here decided to take that course. The petitioner, after such special case had been reserved, appeared before the Judge trying the election petition, and consented to the abandon- ment of the special case and the dismissal of the petition with costs, and it was so ordered. The petition alleged that at the time of the election (14th and 21st March, 1871) the respondent was disquali- fied to be elected a member o£ the Legislative Assembly by reason of his holding the office of postmaster at Patter- son, West York, an office in the service of the Dominion of Canada, at the nomination of the Crown, to which a salary or fee, etc., was attached ; and that such was a disqualifying office under the Act to secure the Independ- ence of the Legislative Assembly, 32 Vic. c. 4, s. 1, which enacted that, " no person accepting or holding any office, commission or employment .... in the service of the Dominion of Canada, at the nomination of the Crown, to which any salary or any fee, allowance, or employment in lieu of any salary from the Crown, is attached, shall be elegible as a member of the Legislative Assembly, nor shall he sit or vote in the same during the time he holds such office, occupation, or employment." The petition claimed the seat for the petitioner on the ground that public notice of the respondent's disqualification Avas given to the electors. Dr. McMich(ul, for petitioner. Mr. R. A. Harrison, Q.C., Mr. J. K. Kerr, and, Mr. Bull, for respondent. It was admitted that the respondent was postmaster at the Village of Patterson, "West York, up to the 11th March, 158 PEOVINCIAL ELECTIONS. [a.D. 1871, that on that day he sent a telegram and letter to the Postmaster-General, resigning his office of postmaster, which was accepted by telegram on the 13th March, and by letter on the 18th March, 1871. It was further admitted that the nomination of candi- dates took place on the 14th March and the polling on the 21st March ; that the petitioner and respondent were- the only candidates ; and that the result of the polling was : For petitioner, 671 ; for respondent, 865 ; majority for respondent, 94. It was also admitted that the office of postmaster was one of emolument under the Post- master-General under the Act of Canada, 31 Vic, c. 10. The evidence of the public notoriety of the respondent's disqualification was as follows : Robert Johnston : I was at the nomination ; perhaps some three or four hundred persons were present. I showed the respondent the Post Office Regulations just before the nominations. The objection was discussed as to respondent's qualification ; and after a telegram to Toronto, an answer came from Toronto stating that the respondent was all right. The respondent and his friends then consulted as to whether another candidate should be named ; ultimately he and his friends decided it was all right. This was after respondent and others had been proposed and seconded. Then all others retired in favor of respondent. After receipt of the telegram it was a matter of talk, and I dare say all the people in the hall were aware of this supposed difficulty and deliberation. The nomination took place on a balcony in front of the hall. The body of the electors were in the open air in front of the hall. Counsel for the petitioner stated that he had no stronger evidence to support the petitioner's claims to the seat. The Chief Justice held on this evidence that the peti- tioner could not claim the seat if the respondent should be found to be disqualified (a). (o) See Essex case, 9 U. C. Law Jour., 247. 1871. J WEST YORK. 159 After the argument of counsel on the question of the disqualification of the respondent, Hagarty, C. J., said: I do not feel much difficulty in satisfying my own judgment on the question before me ; but as the class of persons affected by the decision is numerous, the question one of general importance, and there has apparently been no express decision since the change in the mode of trying election petitions, I think it better to reserve the law of the case for the Court of Queen's Bench. If I decide, my judgment is without ap- peal, and it is possible another Judge, similarly situated, might view the case differently. I think it better to have the law settled by the highest authority. I shall there- fore, under the 20th section of th6 Act, find the facts in evidence before me, and reserve for the determination of the Court of Queen's Bench two questions : 1. Is the office of postmaster (not being in or for a city or town) an office occasioning a disqualification for election ? 2. Was the respondent on the day of nomination (14th March, 1871) a person holding such office ? Subsequently it was agreed between the parties that the special case should be abandoned, and that the respond- ent should be declared" duly elected and returned, and that petitioner should pay the respondent's costs. The Chief Justice thereupon determined that the respondent was duly elected, and that the petition should be dismissed with costs. (6 Journal Legis. Assent., 1873, p. 3), 160 PROVINCIAL ELECTIONS. [a.D. PKINCE EDWARD, (2). Before Mr. Justice Morrison. PiCTON, S7th August, 187^. Joshua B. Dorland et al, Petitioners, v. James Simeon McCuAiG, Respondent. List of Voters to be used at Election — Scrutiny according to the Proper List — Seat awarded to the unsuccessful Candidate at Election. Held, following the Mpnck case (32 Q. B., 147, ante, p. 154), that the list, of voters to be used at an election must be the list made, certified and delivered to the Clerk of the Peace at least one month before the date of the writ to hold such election. The list of voters used at the election in the Township of Hillier was. not filed until the 28th November,. 1871, and the writ of election was dated 9th December, 1871. Held, that the list of voters of 1871 should not have been usedj and the Court having compared the Voters' List of 1870 with the poll books used at the election in the Township of Hillier, found that 35 persons, had voted for the respondent whose names were not on the list of 1870 ; and the names of such persons having been struck off the poU, the respondent was found to be in a minority ; and the seat was thereupon awarded to the other candidate, he having obtained on the scrutiny a. majority of the votes. An election having taken place on the avoidance of the former election (ante, p. 45), the respondent was declared elected. This petition was thereupon filed, praying for- a scrutiny of votes, and claiming the seat for the defeated candidate, Gideon Striker. • Mr. J. K. Kerr and Mr. Allison, for petitioners. Mr. Low, Q.C., for respondent. The poll books were produced, from which it appeared, that the total vote was as follows : For respondent, 1660 ■„ for Mr. Striker, 1644 ; majority for respondent, 16. The writ of election was dated the 9th December, 1871, and the election was held on the 22nd and 29th December,, 1871. Evidence was then given that the voters' list used at. the election in the Township of Hillier had not been sworn to by the clerk until the 28th November, 1871, and had not been "made, certified and delivered to the Clerk. 1872.] PRINCE tDWARD (2). 161 of the Peace at least one month before the date of the writ to hold such election," as required by 32 Vic, c. 21, s. 7, subs. 10. The voters' list for the same township was then produced and compared with the poll books used at the election, when it was found that 35 persons had voted for the respondent whose names did not appear on the Voters' List for 1870. The charges and counter charges of bribery, &c., were withdrawn on both sides. After a short ^adjournment the Court was reopened, when the following judgment was delivered : Morrison, J. [after referring to the charges in the petition, and that the petitioners claimed that Mr. Striker had a majority of the legal votes] said : The poll books show that in the Township of Hillier there were 201 votes recorded for Mr. McCuaig, and 168 for Mr. Striker ; that the voters' lists used by the Deputy Eeturning Officers in that township were taken from a list of voters for 1871, which the acting township clerk of Hillier had not certified under oath or affirmation until the 28th November, 1871, twelve days previous to the 9th December, 1871, the date of the writ of election. Under the 5th sec, and the 10th subs, of sec. 7, of 32 Vic, c 21, no persons other than those whose names are entered and appear on the last list of voters made, certified and delivered to the Clerk of the Peace at least one month before the date of the writ of election, shall be admitted to vote ; and by the 2nd subs. of the 7th sec. the clerk shall certify, by oath or affirma- tion, to the correctness of the list so by him made out, and deliver a duplicate original thereof certified by oath or affirmation to the Clerk of the Peace. Now, here it appeared clear that the township clerk did not certify, by oath or affirmation, the roll for 1871 until the 28th Novem- ber, 1871, i. e., until twelve days before the date of the writ, and it was contended that the scrutiny could only proceed on the roll for 1870, being the then last duly certified roll. 11 162 PROVINCIAL ELECTIONS. [A.D. The question was deliberately considered by the Court of Queen's Bench in the case o£ the Monck Election (32 Q. B., 147, ante p. 154), and the learned Chief Justice of Ontario then held, and I concurred with him in opinion, that in order to qualify a voter, the statute requires that his name must appear on the last certified list delivered to the Clerk of the Peace one month before the date of the writ of election. Following that decision, I am of opinion that the roll of 1870 is the one to show the names of the duly qualified voters entitled to vote at the election now in question. And as the evidence shows, of the votes recorded for Mr. McCuaig in the Township of Hillier 35 were given by persons whose names were not on the roll of 1870, and consequently not entitled to vote at the elec- tion, and being now struck ofi", Mr. McCuaig is placed in a minority of 19 ; and that gentleman and his counsel both intimating that they could not further proceed with the scrutiny so as to place Mr. Striker in a minority, and the other charges alleged in the petition, as well as the recriminatory case on the part of the respondent, being on both sides abandoned, I have only to say that the peti- tioners have proved Mr. Striker to be in a majority ; and I therefore find that Gideon Striker has a majority of votes, and that he was duly elected for the County of Prince Edward, and that the respondent is unseated, and that Mr. Striker ought to have been and should now be returned. (6 Journal Legis. Assem., 1873, p. 4). 1872.] SOUTH GRENVILLE. 163 SOUTH GRENVILLE. Before Mr. Vice-Chancellor Mowat. Prescott, Srd to 14th September, 1872. William Ellis, Petitioner, v. Christopher Finlay Eraser, Respondent. Scrutiny — Qualification of Voters — Right of Partners, Joint Owners, Trus- tees, and Vendors to Vote— Mistake in Lot — Assessed Value — Evidence — Objection to Votes. Where a son was assessed at $700 for a farm in which he and his father were partners, in the proportion of three-fourths of the profits to the father and one-fourth to the son, and the objection to the voter was non-ownership. Held, that the partnership was established by the evidence, and in view of the objection taken, the vote was sustained. — Holler Smales' vote. Where two partners in business occupied premises the freehold of which was vested in one of them, and the assessment of the premises was sufficient to give a qualification to each, both partners were held qualified to vote. — Thomas Fitzgerald's vote. Wliere a father, the owner of a lot, told his son that he might have the lot, and advised him to get a deed drawn, and the lot had been assessed to the son for 3 or 4 years, and w^-s rented to a tenant by the father with the assent of the son, who paid to the father his wages but the father collected the rent. Hold, that as there was nothing but a voluntary gift from the father to the son, without possession, the son's vote was haA.—Jameg Lundy's vote. Where a father had made a will of a lot to his son who was assessed for it, and the son took the crops except what was used by the father, who resided on the lot with his wife, the son residing and working on another farm. Held, that the son had not such a beneficial interest in the lot as would entitle him to vote. — William Mullin's vote. Where A. , who resided out of the riding, had made a contract in writing to sell to B. the property assessed to him as owner, but had not at the time of the election executed the deed, B. having been in possession of the property for several years under agreements with A. , Held, that A. was a mere trustee for the purchaser, and had therefore no right to vote. — James Holden's vote. Where a vendor before the revision of the Assessment Roll had conveyed and given possession of the property to a purchaser, and such pur- chaser had afterwards given him a license to occupy a small portion of the property, such vendor was held not entitled to vote. — Daniel Noblin's vote. Where the owner of mortgaged property died intestate, leaving a widow and sons and daughters, and the property was sold under the mortgage, and the deed made to the widow, but three of the sons furnished some of the purchase money, and all remained in possession, and the eldest son was assessed as occupant. Held, that as the eldest son did not show that the property was purchased for him, and the presumption from the evidence being that it was bought for the mother, such eldest son had no right to vote, — John Morrow's vote. 164 PEOVINCIAL ELECTIONS. [A.D. An objection that the persons objected to were not owners, tenants, or occupants within s. 5, excluded an objection as to the value of the assessed property. — Ibid. A trustee under a will, having no present beneficial interest in the real property assessed to him, was held not entitled to vote. — William H. Jones' vote. Where a voter was assessed for property which he sold on the 27th February, 1871, before the revision of the Assessment Roll, and was not assessed for other property of which he was in possession as owner or tenant, he was held not entitled to vote. — Thomas Place's vote. The mistake of the number of the lot does not come under the same rule as the mistake of a name, as the latter is provided for in the statute and the voter's oath. — Ibid. Where one of two joint owners was assessed for property at $200, neither of such joint owners was entitled to vote. — Robert Stewart's vote. Parol evidence is inadmissible on a scrutiny to alter the value assessed against property in the Assessment Roll. — Ibid. A vacancy having occurred in this constituency by the death of the member elected at the general election held in March, 1871 (see Journal Legis. Assembly, 1871-2, p. 247), a new election was held in March, 1872, when the re- spondent was declared duly elected. A petition was presented on the 25th April, 1872, by the above named petitioner, who was a candidate at the election, alleging corrupt practices against the. respondent and his agents, and claiming the seat on a scrutiny. Mr. B. A. Harrison, Q.C. for the petitioner. Mr. A. N. Richards, Q. C, Mr. Maelennan, and the Respondent in person, for the respondent. The Respondent filed recriminatory charges of corrupt practices against the petitioner and his agents.. After evidence on the charges against each of the parties had been given. The Vice-Chancellor held the evidence not sufficient. The scrutiny of votes was then proceeded with, and the following cases "were decided. HALLER SMALES' VOTE. Elijah Smales : I own 16 in 1st concession. My son voted on the east half of the lot, and I on the other half. My son and I live on the place together. We are in partnership. I have also a minor son living with me. 1872.] SOUTH GRENVILLE. 165 I have also two daughters living at home. Haller is not married ; he is about 30. I never made to him a deed of half. My son has been a partner with me in all my business ever since he came of age. We have made some- times $500 or $600 a year, and sometimes much more. He gets one-fourth of the profits and I get three-fourths. He works on the farm ; he does farm work. I work too ; both of us manage. I own other lands. Our partnership is not in writing ; we don't need a writing. We keep books. We buy and sell land ; we have between two and three hundred acres now, and have had much more. When my minor son comes of age I will probably give him one-fourth if he chooses to be a partner. Cross-examined ; There was a bargain when he came of age to the effect mentioned. We divide the proceeds of sales frequently. This has been so from the first. The Assessment Roll was put in, which showed that the voter was assessed for the E. ^, $700, and the father for the W. I $1,200. Mr. Harrison contended that the evidence showed that the son was only interested to the extent of one-fourth in the $700 lot, not sufficient to give him a vote. Mr. Fraser cited Owen Baker's case, Stormont case (ante, p. 31), to show that the objection could not be taken for deficient assessment where the objection of which notice was given was non-ownership, etc. The Vice-Chancellor held the vote good. The evi- dence of the father, which was not impeached, showed that the father and son were partners in all the property, and the son undoubtedly ought to have the right to vote. Under these circumstances, and in view of the objection taken in Owen Baker's case, he allowed the vote. THOMAS FITZGERALD'S VOTE. Thomas Fitzgerald: I voted on a property on Main Street in this town. John Dufiy owned the lot ; when I voted he was living on it. The shoemaking business is carried 166 PROVINCIAL ELECTIONS. {A.D. on in the house. I lived there when I voted. I am not a married man ; Duffy is. My father is not alive. I am an adopted son o£ John Duffy, and have lived with him since my childhood. He has children o£ his own. Four and a half years ago he agreed to give me a share — one- third of the profits in the business. I had worked with him fifteen years before that. I was not to pay for my board. He was to give me my board and one-third of the profits of the business. That agreement has continued ever since. I never had any other agreement with him. I don't recollect the date. I had a settlement with him last year. That-was the first settlement I had with him. It was in the spring. I had no settlement with him be- fore I voted. I did not ask a settlement, because I did not want it. Any money I wanted I got from him. At the settlement I got $57 as my share of the profits for six months. That was the last six months. We had no settlement for the prior period. I did receive the $57. Cross-examined : I had been intending to leave when the agreement was made four and a half years ago. I remained on the faith of the agreement. I was not very strict with the old man. He and I alone worked on the premises. He-examined : I was at the Court of Revision. They said I had a bad vote. I wasasked to swear. I don't recollect whether I refused to swear whether I was a partner of Duffy's. John Duffy: I am owner of the property Fitzgerald spoke of. I think the number is 7. I occupied the whole until about nine months ago. I rented part then to Mr. Robinson, who pays his rent to me. Fitzgerald is still working with me. Four or five years ago he had a notion of going west, and I said if he would remain with me I would give him one-third of the profits ; one-third goes for wood, taxes and other expenses of the house, and I have the remaining one-third for myself. My other boys have all left me, and I could not get on without him. Both he and I work. We arrange the profits. 1872.] SOUTH GRENVILLE. 167 Gross-eoaxmined : I was at the Court of Revision. It was a mere dodge. Fitzgerald would not swear, because he was disgusted. I make the purchases. All the invoices are in my name. My business is all custom work. Mr. Harrison contended that the voter was only entitled to one-third of the profits, and the property was only assessed for $700. The voter had no interest in the land. The Vice -Chancellor said the evidence in effect showed a partnership of one-half each, after deducting the third for expenses spoken of by Duffy ; and he would hold that where two partners were in business, and one of them owned the freehold where the business was carried on, both partners could vote if the assessment was suffi- cient. Vote held good. JAMES LUNDY'S vote. James Lundy : I voted at the election in March last. I voted on Johnstown town plots. They contain about 36 acres. There are three park lots. This property belonged to me when I voted. My father gave it to me ; he is still living. Wm. Scott lived on this property. My father gave it to me two years or more ago. He considered that I had paid for it. He did not give me a deed. My father has a deed of it. He offered me a deed, but I did not care to take it. I am not a married man. I thought he could take care of the deed better than I could. I work at different places. My father has not made a will of this property. He has asked me to get some one to write out a will of the property for him. -He said if I did not it might be too late. I was not in a hurry about his making the will ; I think he has a right to make a will of it to me. The tenant pays rent. I receive part. My father has told me he received part. I don't know, how much I received, it was under So. The tenant has but a small portion. It has not been rented more than a year. The rent was payable any time we wanted it. The rent is $17.50 a year. It commenced April or May last. It was not under rent 168 PROVINCIAL ELECTIONS. [A.D. at the time I voted. At that time it was not occupied by anybody. Crops were grown on it. I cropped it this season. I helped to crop it previously. Part of the crop I fed to the cattle, and part I lived upon. My father and brothers live upon the place. I live there too when I am at home. My father is not now living on any part of the 36 acres ; he moved off two years ago. He did not pay me rent. It was in the spring he moved off". The place was then rented to James Millar. He paid $35 a year. My father collected it. He gave me no part of it. He said he would give me this lot. This was when he bought the other. I allowed him to collect the rent as part payment. Gross-examined : I consider that I have paid for the property. I worked for my father ever since I came of age. I gave him in money $100 at one time, and $50 at another time ; also other two small sums. I considered he should have all this for the lot. It was called in the family my lot. My father had me assessed for it. I think I have been assessed for it for three or four years. I am not aware that my father was ever assessed for it I am not his eldest son. My father told me that the land was mine, and that I might have it ; have a deed of it any time I got married. My father made the bargain with Millar with my assent ; I made the bargain with Scott. This season I have done some fencing on the place, and have worked it. Re-examined : It is two lyears ago this fall that I paid the $100. I paid the $50 last summer. I did not pay these sums in pursuance of any bargain ; I considered that I ought to pay these sums. These payments were made after he said I should have the place. I understood that I was to work for him or give him iny earnings if I worked elsewhere. He said if I did this he would give me the place. I have done what I promised. He has given me the place in no other way than I have mentioned. I got no receipts for the money. My brothers have worked for him. I worked one year and six months out, 1872.] SOUTH GEENVILLE. 169 and gave him my wages. I gave all except what I spent for my clothes. I have been of age for five or six years. My brothers work out once in a while. They give him their wages ; I cannot say what for. Th6y have their own ideas as to that. Mr. Maclennan submitted that an agreement was shown by the evidence of the son that he should have the property. He contended that the father could not have voted upon the evidence. The son would have a right to file a bill for specific performance. The Vice-Chancellor : At the time of the assessment there was nothing but a voluntary gift without possession. Vote held bad. WILLIAM MULLIN'S VOTE. Patrick Mullin : I live in Augusta. William is my son. He voted on part of 6, in 2nd concession of Augusta. William owned it then. I had willed it to him ; that is his only title. I live on the place ; he does not. He is a farmer. He lives with Mr. Moran ; he works for him. William is my only child. He works the farm'. I work a little on it ; all that I am able to do. Cross-examined : I did not vote ; I am not assessed. My son alone voted on this property. William supports us^ me and. the old woman, whatever we do. The business is in William's name. I am 78. There are 6 acres of the property. If any help is required he hires it. Of the crops, what is not used he gets. He furnishes the seed- The neighbors do the ploughing ; they make a bee of it. William often comes home. He is 30 ; he is not married He has been assessed for the property for three years. I told the assessors to put it down for my son. I did so because I could not work the place, and I considered my son had the place. My son buys the groceries required, or gives me the money. My wife is three years younger than I. My son owns the crops, except what is used. I had 200 acres, but this is all that is left. 170 PROVINCIAL ELECTIONS. [A.D. Re-examined : My son gives us money when we want it. When help is needed he either turns in or hires labor. I never sell what is to spare, and have not done so since I willed the place to him. He has sold since. My other sons are all married. They used to give me money when I wanted it, and we kept no accounts. Mr. Harrison contended that there was no evidence of any agreement between the father and son, and the son was not in actual occupation. Mr. Maclennan urged that this was not a suspicious case; the father was not assessed for the lot. The father said the son, got whatever was over and above the support of the family. Actual residence was not required to make occupation. The Vice-Chancellor did not think the son had such a beneficial interest in the property as would give him a vote, and he therefore held the vote bad. .TAMES HOLDEN'S VOTE. James Holden : I voted at the election in question. I live in Morrisburg — not in this county. I voted on part of S. i 33 in .5th con., Augusta. I was the sole owner and occupant at the time I voted. I have had the title for twenty-eight years. I bargained to sell this property in January or February last. The purchaser has not ful- filled his part, and has therefore not got his deed. The purchase money was to be paid part down, and part in instalments. The down payment was not made. It was to have been made when I gave the deed, and I am not prepared to give it yet. The bargain will be carried out next week. There is a memorandum in writing of the bargain. The lot is not improved ; no house on it. To insure the bargain, he gave me $50 at the time of the con- tract, and is to give $600 when the deed is executed. I have not lived in this riding for upwards of 30 years. I have not the contract with me. The purchaser has the original and I have a copy. 1872.] SOUTH GEENVILLE. 171 Cross-examined : When I am prepared to give a deed I am to get the $600. I am not prepared immediately to give the deed. I made an assignment in 1857, and I had not got the conveyance back though the estate has been settled. I have a transfer from the assignee ; I got it two months ago. I needed this transfer to get the legal transfer. I was owner at the time of the revision. Ee-examined : For a number of years I had sold the purchaser timber off the lot before the contract I have mentioned. Walker is the purchaser ; he has the right to the possession. Walker cropped the land last year. He had a right to crop and take the standing timber, or in certain portions under the former agreements. [Produces letters from 1865 to 1868.] Walker has been in possession for several years, and cropped the land under the agree- ments contained in these letters. There was nothing said ii\ the agreement of February last about possession. Mr. JRichards contended that as the equitable owner was allowed a vote in the Stormont case (Blair's case, ante, p. 37), the legal owner could not also have a vote, Mr. Harrison contended that both could not vote as owners ; the legal owner could not take the oath, as he would have to swear that " he was actually possessed to his own use and benefit as owner." Mr. Maclennan referred to JRogers on Elections, 31, 9th ed. The Vice-Chancelloe said that he had not much doubt but that the vote was bad ; where a tenant in possession buys the premises, he is considered as being in possession under the contract of purchase, and the vendor, though he may have, as here, given no deed, is a mere trustee for the purchaser. Vote held bad. DANIEL NOBLIN'S VOTE. Thomas Gosgrave : I live in Augusta. I know Daniel Noblin. He is assessed for 25 acres of the front of rear half of 33 in 6th concession. I bought this from him iii 172 PROVINCIAL ELECTIONS. [a.D. April, 1871. I produce the deed [22nd April, 1871]. I have occupied the land since my purchase. I allowed him to take some limewood off and plant a small parcel of land in potatoes ; he planted two bushels. I took possession when I got my deed, and had it ever since. It was after I had cleared the parcel — about 15th June — that he went on the small parcel for potatoes. I gave him liberty to take some falling wood. The wood he took was taken last winter. Cross-examined : He was a mason, and asked me if I would allow him to plant two bushels of oats. His family was living with him. This occurred about 1st June. I hadn't the parcel cleared off until after May ; the pota- toes were planted. Noblin had other land, 3 acres and a house, at the time he sold to me. This land was in another concession. He lived there with his father. I would not like to give $200 for the 3 acres and bam. 'I can't say as to its value. When I bought the land there was lying about loose some wood he had cut. He had got this off befoie last May. I commenced burning 27th May. The Vice-Chancellor held that the voter had only a license to occupy a portion of the lot which he had sold to Cosgrave. Actual possession was given to, and taken by, the purchaser before the revision of the Assessment Roll, and after the voter had given Cosgrave his deed and it was after that and about the 15th June that the voter went in under the license to occupy the part in which he had planted potatoes. Vote held bad. JOHN morrow's vote. John Morrow: I voted in the west ward. The property I voted on is owned by my mother. She had a deed in 1871, at the time of assessment. I was assessed as occupant. I was living at home with my mother at the time. There are seven of us. We were all living at home with her at the time of assessment and do still, and have done so since 1872.] SOUTH GRENVILLE. 173 my father's death. I had no lease or conveyance from my mother, or any other writing up to the time of my voting. I am eldest of the boys. Gross-examined: My father died in spring, 1870. There was then a mortgage on the place. My mother bought it under the mortgage. I paid for it out of my own earn- ings. I am the head of the house. I support the family, my mother and sisters ; a younger brother and I support them. He lives with us, he does not make as much as I do. He is not quite twenty-one ; I will be twenty-three in October. I pay the taxes ; I keep the premises in repair. I have made no improvements since my father died. There was no understanding when the deed was made to my mother that I was to live there, and it was to be my home. It was to be a home for my brothers and sisters too ; that was the agreement. Mr. Patrick held the mortgage ; $600 was the purchase money. I did not see Mr. Patrick about it. It is not all paid yet. I gave $100 at the start, and have given $50 since. I agreed to pay off the amount due with the help of my brother. My father left no will. I am not sure that any deed has been made to my mother. My mother paid nothing on the mortgage. My brother paid something on it. Another brother, Charlie, paid something on it ; he is dead. The property is worth six hundred dollars at least. Be-examined : There are papers in the house. I don't know but it is a deed that was made to her. I > think it was in the spring of 1870 or fall of 1869 that I had the conversation with my mother. My mother asked me what I thought about buying the place, and I said, " Go ahead," and I would see that it would be paid. I can't remember that anything else was then said. There are four brothers of us still living. I meant that if the other brothers did not help her to pay, I would. I don't re- member that any of my sisters or brothers were present. There were five brothers when my father died. Three of us were earning at the time, and all of us paid our wages 174 PROVINCIAL ELECTIONS. [A.D. or some of them to my mother from time to time. Two sisters were also working, and I suppose they gave my mother some too ; I understood they were doing so. I gave my mother as high as $35 at a time. For the pre- sent year I have given her $30 every month. She uses part for the expenses of the house. My brother gave her some also. We have been getting $40 a month for the last three months. I have got sometimes $40, and some- times more. I think I have given her $36 or $37 at one time. I never gave her as much as $40.' My father had been away for five or six years before he died. He died in British Columbia. He used to send merely enough to pay the expenses of the house. I used to give my mother something out of my wages before my father's death. I did not for a couple of months give her more than I had been doing in my father's lifetime ; for that time she didn't need more. My sisters also gave to my mother as before my father died. The place is a frame house with eight or nine rooms. If I got married, I don't know whether I would remain there with my wife and family. My brothers were to have the same rights as I; they were all to have their home on the place. Nothing was said then as to my sisters. $300 has been paid on the place since my mother bought it ; $200 was paid down, and $100 last fall. Mr. Harri$on contended the vote was good, both as that of an owner and an occupant. The mother was trustee for the children. The boy was the head of the house, and in loco parentis. Mr. Fraser objected that the assessment was too low to qualify the voter. Mr. Harrison said that objection had not been taken. Mr. Fraser read the heading of the respondent's list of objected votes, and showed that it used' the words " that the persons objected to were not owners, tenants and occupants within section 5," which required, among other things, a sufficient rating. 1872.] SOUTH GRENVILLE. 175 The Vice-Chancelloe held the heading of the respord- ent's list excluded the question of the value of the assessed property. After further argument, The Vice-Chancellor said that he did not think in equity that the mother would be a trustee for the voter.. The witness did not say that the property was bought for him ; he said he would see it paid for. The presumption was that it was bought for the mother. For the present the vote is struck off. WILLIAM H. JONES' VOTE. William H. Jones: I reside at Brockville, out of the Riding of South Grenville. I voted on real property in Prescott, east ward, four acres. I am owner under my mother's will [copy of will produced]. My brothers and sisters have not yet come qf age. My mother was owner at her death. I have been in possession since 1864, and in receipt of the profits. I have rented it and been assessed for it. My mother died in 1862. In October, 1868, I rented the premises to one Knapp for three years. I got possession from him in the fall of 1871, his term having expired. KJuapp had not the whole four acres. I used the rent of the four acres. I have been selling por- tions of the devised property. Ten children survived my mother, and are still living. These are not yet of age. I never lived on the property on which I have voted ; all of it that I own now is vacant. No improvements have been made on the unsold lots ; they were unimproved at my mother's death. Cross-examined ; I would not take $1,500 for the whole ; I wouldn't take less than that. Some of us were of age in May, 1871 ; no more of us are of age now. I don't support any of my brothers or sisters. Very little rent has been received. If they want $5 or $10 I give it to them. Re-eoeamiiied: I am one of the parties beneficially entitled under the will. I have not been supporting the children ; 176 PROVINCIAL ELECTIONS. [A.D. they have been supported by our father. He is Registrar. There has been no necessity for subscribing for their sup- port and maintenance. They live in a house devised by my mother, and which I have since acquired. This is in Brockville. Mr. Madennan contended that the vote was bad. The voter might eventually have an interest in the land, at present he was only entitled to a contingent interest; besides, there was not suiEcient assessed value to qualify the voter. The land, though sworn to be worth $1,500, was assessed for $400, and it ought to be assessed for $3,000, so as to give a qualification to each of the parties interested. Mr. Harriion said there was nothing to prevent a trustee voting when any part of the trust was in his own favor. He referred to Rogers on Elections, 27, 9th ed., and argued . that in England a trustee could vote. The words in our statute (32 Vic, c. 21, s. 6, sub-s. 1), that a voter must be an owner, &c., "in his own right or in that of his wife," did not exclude the right of a trustee to vote. The Vice-Ohancellor said at present he would hold that a trustee could not vote. What was meant was the real, the beneficial, owner should vote. The words used in the statute, referred to by Mr. Harrison, afibrded a very strong presumption against the right of a trustee to vote; and referring to the terms of the oath, which required the voter to swear that he was " actually, truly, and in good faith possessed to his own use and benefit as^owner," &c., he thought it was so strong as to put an end to the dispute. As to the question of the voter being an occu- pant, he appeared to have no present beneficial interest in the land, and no future interest, as he was excluded by the will. Vote held bad. THOMAS place's VOTE. Thomas Place: I voted at the Town Hall, fourth subdivi- sion, Augusta. I formerly rented front half 27, in 6th (50 1872.] SOUTH GRENVILLE. 177 acres). I did sc at the time of assessment in 1871. I own no other land. I sold 100 acres to one Carpenter. I made to him a deed of rear half of 27, in 6th concession, on the 27th February, 1871. I have had nothing to do with the land since I sold to Carpenter. He has kept it and oc- cupied it ever since. I own 50 acres in all. I have no property except that described in the produced deed. Cross-examined : I live on Lot 23, in 6th concession. I have owned it for a year and three-quarters. I owned no other property last year. I had 100 acres rented from Burns. I had it for three years. I gave it up May, 1872. This property is also in the 6th concession. It is about three-quarters of a mile below where I live, west of me. The lot I sold to Carpenter is west of me. The place I rented adjoins the Carpenter lot. There is a Thomas D. Place in the township. I have had nothing to do with the lot sold to Carpenter since the time I sold it to him. I can't read. I bought the 25 acres I live on from Colville. The lot I leased from Burns is the front 100 acres of the same 27 already mentioned. I paid the taxes of this. Re-examined : I rented from John Burns. The Birkleys last summer took the crops off the land I had rented from Mr. Burns. They got possession in the spring of this year. I had a written lease from Burns. The Assessment Roll was produced, from which it appeared that the voter was assessed for the rear 100 acres of Lot 27, in 6th (sold to Carpenter, 27th February^ 1871), and that he was not assessed for the property he was in posses.sion of as owner (23, in 6th con.), or as tenant {front 100 acres, 27, in 6th con.) The Vice-Chancelloe said he would follow the decision of Chief Justice Hagarfcy in a similar case at Brockville, where a voter who was assessed for a wrong lot (No. 34 instead of No. 35) was held not qualified to vote. {Broek- ville case, 7 Can. L. J. 221 ; s.c, Brough on Elections, 11). The ruling of the Chief Justice was supported by the statute. The mistake in the number of a lot did not come 12 178 PEOVINCIAL ELECTIONS. [a.D. under the same rule as the mistake of a name, as the latter is provided for in the statute and in the voter's oath. Vote held bad. ROBERT STEWART'S VOTE. Robert Stewart : I voted on part of Lot 37, 4th eon. Augusta. The deed produced is to myself and my brother. He and I have been joint owners since our purchase some years ago. Two or three acres were under cultivation last year. Rosnald Field was cultivating it last year. He was not assessed for it. There are 40 acres more or less. I did not see the assessor. My brother had a vote on other land, and is assessed for it. Cross- exnrrdned : I did not give the value of the lot to the assessor. The property is worth $1,000. We paid $.500 for it. My interest is worth that. The Assessment Roll was produced, and showed that the lot was assessed at $200. The Vice-Chancellor held that parol evidence of value was inadmissible to alter the value assessed against the property in the Assessment Roll. The voter and his brother were joint owners of the lot, and the assessed value was not sufficient to give each a vote. Vote held bad. At the close of the scrutiny it was admitted that the votes stood equal for each of the candidates. The parties then agreed that the election should be declared void, and that each party should pay his own costs. The Vice-Chancellor thereupon declared the election void. (6 Journal Legis. Assem., 1873, p. 3). 1875.] , WEST TORONTO. ^79 PROVINCIAL ELECTIONS, 1875. WEST TORONTO (2). Before Chief Justice Draper. Toronto, 6th, 7th, and 10th May, 1875. William Adamson, Petitioner, v. Robert Bell, Itespondent. Ar/ent accepting and drinking spirituous liquor during polling hours — •/ iJorrnpt practices by a particular class — 3S Vic, c. SI, s. 66 ; 36 Vic, c a, sees. 1, 3. The 66tli section of 32 Vic, o. 21 {Election Law of 1868), provides that ' ' no spirituous or fermented liquors or drinks shall be sold or given to any person " during the day appointed for polling in the wards or municipalities in which the polls are held ; and by s. 1 of 36 Vic. , c. 2, "corrupt practice " means "any violation of the 66th section of the Election Law of 1868 during the hours appointed for polling ; " and by s. 3 of the latter Act any corrupt practice ' ' committed by any _^ candidate at an election, or by his agent, whetlier with or without the actual knowledge or consent of such candidate," avoids the election. On the day of the election in question, and during the hours appointed for polling, one M. , an agent of the respondent for the purposes of the election, was offered by a person unknown to him spirituous liquor (whiskey) in a bottle, which such agent, after remonstrating with such person, accepted and drank at the polling place where such agent then was. The unknown person also gave spirituous liquor from the same bottle to other persons then present. Held, that as the Legislature had, by the provisions as to the selling or giving of liquor during the hours of polling, provided for the punish- ment of one particular class, which was defined to be the seller or giver, it did not intend to include the other class, the purchaser or receiver, to which no reference was made, except inferentially ; and that therefore such agent, as the receiver of spirituous liquor during such polling hours, was not guilty of a corrupt practice. The petition contained the usual charges as to corrupt' practices. The election took place on the 11th and 18th January, 187?. . Mr. Bethune and Mr. N. W. FTrnjles for petitioner. Mr. Alfred BouUhee and Mr. Evatt for respondent. The evidence on the charge of corrupt practices by an agent of the respondent was as follows : John A. Macdonell : Q. — You acted as an agent for Mr. Bell ? A. — Yes ? Q. — Are you aware of any liquor 13 180 PEOVINCIAL ELECTIONS. [A.D. having been given on polling day, or sold during the hours of polling ? A. — No ; I have heard vague reports. Q. — Never mind what you have heard, except you have heard it from Mr. Bell ; were you present when any liquor was given ? A. — Yes ; there was a man at the polling place where I stood; I did not know his name ; - I never saw hira before or since ; he gave me some; it was at the polling place in Simcoe Street; it was at some hour in the morning after the poll opened ; I do not know who it was; he had only one bottle; I think he gave it to others. Q. — Do you know any one who got any ? A. — No ; when the man came up I saw he was somewhat intoxicated; I never heard him called by name. I do not know who he was. Q. — Did you remonstrate with him ? A. — Yes ; it was a very cold day ; I had been out from 9 o'clock in the morning to this hour, about 11, and it was very cold and stormy; and he was very pressing that I should take some, and at last I did take some and others took some ; I have not the slightest idea who he was. Q. — Do you happen to know where he got the liquor? A. — No. Q. — What kind of liquor was it? A. — It was, I think, whiskey. Q. — That was the only liquor you know of having been given on polling day ? A. — It was, except after the election was over. Gross-examined : Q. — This about the bottle occurred in the street ? A. — Yes. Q. — Was he particular in his attentions, or did he give the liquor to both parties ? A. — To both parties, I think. Q. — Did he come there again ? A. — I don't think he came back, and no one else tried this. Evidence was also given of treating during polling hours on the day of the election, at taverns within the electoral division, by John Ball and Kichard Duplex, referred to in the judgment. Mr. Bethune said three cases of treating had been proved — one by Mr. Ball, another, the treating of an 1875.] WEST TORONTO. 181 unknown person by Duplex, and the third, the treat- ing of Mr. Macdonell by an unknown person. It was not necessary to consider the first and second cases, as there was not sufficient proof of agency. The third case, how- ever, was one which came up for the first time under the statute. The 66th section of the Act of 1868 prohibited the keeping open of taverns and the sale or giving of spirituous liquor during the hours of polling to any per- son within the limits of the municipality. By the earlier Act of 1871, relating to the trial of controverted elections, corrupt practices were defined to be bribery, undue in- fluence, and illegal and prohibited acts in reference to elections or any of such offences. Under that Act the Brockville election trial {ante p. 139) took place, and the Court of Queen's Bench construed the law so that the word "corruptly " was held to govern the whole sectioil. In the original Ontario Act, treating at meetings was a corrupt practice when done " with intent to promote the election" of a candidate. That phrase governed the whole section; but the Legislature had omitted that phrase from the new Act (36 Vic, c. 2, s. 2) with the design of getting rid of the question of " intent " altogether. The manifest policy of the law was to stop the giving or selling of liquors on the polling day, whether the intent were iimocent or not. He referred to the Interpretation Act, 31 Vic, cap. 1, sec. 8, sub-sec. 39, to show that all statutes were to be construed in a fair, large and liberal manner, so as to ensure the attainment of the object of the Act. The object of the provision in the Election Act was to prevent the giving or selling of liquor. Two per- sons must be concerned in any such transaction or viola- tion of the law, and so the person who received the liquor was as much a violator of the law as he who gave it. Bex V. Pitt, 3 Burr. 1335 ; and Bex v. Vmtghan, 4 Burr. 2501. It had been argued that while it was an offence to receive a bribe it was none to give one ; but Lord Mansfield said that what it was a crime to take, it was a crime to give ; the two things are reciprocal. It 182 PROVINCIAL ELECTIONS. [A.D. was clear that if Mr. Macdonell had given the liquor he would have violated the section, and it would be an anomaly to say that in receiving it he was not also guilty of a violation of the law. In the Cornwall case (Dom.) («) the Chancellor had held that the old canon of a distinc- tion of construction between penal and civil statutes did not now exist. Mr. Macdonell, as agent of the respondent, had been guilty of an act in direct opposition to the spirit and intent of the law, and if it were not so held it would open the door to an easy evasion of the provision of the statute against corrupt practices. It might be said that an election should not be lightly set aside, but a Judge had declared that if only two shillings and sixpence had been spent in bribery, he would have no choice but to avoid the election (Blackburn case, 1 O'M. and H. 202) ; and in the 36 Vic, cap. 2., sec. 3, no distinction was made between giving liquor and giving money. Mr, Boultbee contended that the intention of the amended election law was to close taverns and stores, and prevent the proprietors carrying liquor to barns or other places and selling it there, and thus avoid being fined. The object of the present law was to secure purity of election. Judging from the evidence, it appeared that the intention of the Legislature had been carried out in this instance, and it would be a most unfortunate thing if, after an elec- tion had been conducted as this had been, it should be set aside because of a trifling act, such as was made the ground of avoiding it. . He contended there must be an "intent" in the giving of liquor, and that the simple giving or selling of a glass of liquor on polling day would not avoid the election. He thought the clause was put in the Act without considering the full eflfect it would have, and that the Court would construe it differ- ently from what the petitioner contended. Draper, C. J., A. — The only charge in the petition which was entered into at the trial was that the respondent was (a) Reported Dominion Elections, 1874, post. 1875.] WEST TORONTO. 183 personally and by his agents, before, during and after the election, guilty of corrupt practices, as defined by the Con- troverted Elections Act of 1871 and the Elections Act of 1873, whereby the said election had become void. Mr. Bethune opened the case very briefly, stating that it was impossible for him to explain what particular facts he expected to prove by the different witnesses he should call. They all, or nearly all, belonged to the opposite party, and it would have been useless to apply to them for information. He could only say that he hoped to prove that there were corrupt practices, as defined by the statute, and that they were committed by or under the authority of the respondent or by his agents, for whose acts, in these respects, he was answerable ; that he fully expected that he should prove that the respondent was put forward as a candidate by the Liberal-Conservative Association in the City of Toronto, on the understanding _ that he was to be put to no expense, and that he placed himself in their hands, thereby constituting all its members who took part in the election as his agents, and in support of this assertion he read a part of the respond- ent's deposition. The trial lasted part of two days, during which fifty -five witnesses were examined. I adjourned rather earlier than I had intended, as there was one witness, whose probable importance to the petitioner had only become apparent by the testimony given during the first day; and I thought it better, understanding that no witnesses would be called for the defence, that the testimony in support of the petition should be completed before Mr. Bethune summed up. At the close of this witness's examination, Mr. Bethune admitted that the charge of bribery was altogether unsus- tained, and that he must rest the case upon the allegation of treating. Three cases of treating during the election had been proved. Two of them he would not press, as the fact that the parties who gave the liquor were agents of the respondent was not established ; but he contended that the case of Mr. John A. Macdonell was different. There was no 184 PROVINCIAL ELECTIONS. [A.D. possibility of doubting that he was agent of the respond- ent. He himself admitted that he received and drank some liquor during the polling hours; and Mr. Bethune con- tended that the original Ontario Act, 32 Vic, cap. 21, sec. 61, which made treating with intent to promote the election of a candidate illegal, having been altered by omitting the words " with intent to promote the election of a candidate," it showed that the offence no longer consisted in the inient but in the act. He then argued that the person who drank liquor given him was as much an offender against the 66th sec. of 32 Vic, cap. 21, as he who gave it; and, therefore, as Mr. Macdonell had accepted and drank within the limits of the municipality some spirituous or fermented liquor during the time when the poll was open, and was an agent of the respondent, that act was sufficient to avoid the election. The point on which the petitioner's case was finally rested was not raised or brought under my notice until the last witness called to support the • petition had been examined. Not one instance of bribery had been — I will not say established ; but there was no evidence given upon which there was even a prima facie case of bribery. The evidence also did not connect the sitting member personally with any act which could sustain the charge of corrupt practices, so far as bribery is concerned. But several witnesses were examined to prove either treating or a breach of the 66th section of the 32.Vic, cap. 21, which requires that every hotel, tavern or shop in which spirituous or fermented liquors or drinks are ordinarily sold, shall be closed during the day ap- pointed for polling in the wards of municipalities in which the polls are held, and prohibits selling or giving to any person within the limits of such municipality, during the said period, any spirituous or fermented liquors, under a penalty of $100 in every such case. There was evidence which was in my judgment sufficient to prove at least two cases in which this clause of the Act was violated. But in no such case was there any evidence connecting the offenders with the successful candidate or any of his 1875.] WEST TORONTO. 185 agents ; and for this reason the petitioner's counsel gave them up. There remained one case, however, in which there was no such defect. Mr. Macdonell was examined, and unequivocally admitted himself to be • an agenj of the respondent for the purposes of his election. He gave in evidence that he was at No. 1 division, St. Patrick's Ward, during the polling. There was a man at the polling booth on Simcoe Street, upon the street, who had a bottle of liquor, and who seemed to be a little intoxicated. Mr. Macdonell did n6t know his name, and has not seen him since, nor has he any idea who he was. The day was cold, the man was very pressing, and Mr. Macdonell took some whiskey from him. It was during the hours of polling. It was contended that this avoided the election; that there was a clear violation of the statute; that liquor could not be given or sold unless there was a purchaser or a receiver ; and as by the act of receiving the giver was enabled to commit the oifence, the receiver became a particeps criminis. Reference was made to the definition of corrupt practices, in the 34 Vic, cap. 3, sec. 3, and to the repeal of that definition by 36 Vic, cap. 2, sec. 1, and the substitution of another definition in lieu thereof, which latter definition makes any violation of the 66th section during the hours of polling a corrupt practice. This change in the law does not, however, affect the question I am called upon to decide. It leaves the point untouched whe'ther the words "No spirituous liquors or fermented liquors or drinks shall be sold or given" make the purchaser or recipient in effect a seller or giver, and as such subject to a penalty of $100 in every such case, for " sell " or " give " are the only words in the Act which can be made applicable. It might have been argued on the part of the respondent with as much show of reason, that the earlier part of the section shows that the Legislature had in view a stringent pre- ventative to the dangers of having taverns and other places where liquors are usually sold kept open during 186 PROVINCIAL ELECTIONS. [A.D. the polling day, by requiriiig such places to be kept shut, and by forbidding the sale of such liquors. In the 68th section the contracting to vote for money and the receiv- ing of money on account of having voted or refrained from voting, are treated and subjected to a penalty as distinct offences, though in the preceding section the giving or lending money, or agreeing to do so, to influence a voter, is subjected to the same penalty. The Legis- lature in that instance evidently did not consider that by punishing the lender or giver of money, they had also provided for the punishment of him who borrowed or received. Upon the construction contended for by the petitioner's counsel, in making the 66th section consist of two separate parts, the first relating to the closing of hotels, &c., and the latter of a general character, it appears to me that if any person in his private way give a glass of wine or beer to a friend who happened to call upon him during polling hours, he would himself be subject to the penalty of $100, and his friend would be similarly liable. I have not now to deal with the former of these propositions, but the latter is involved on the present occasion. I cannot adopt a conclusion which appears to me unwarranted by the plain meaning of the words of the Act, aor hold that where the Legislature provides for the punishment of one particular class, which they distinctly define, they intended to include another to which they make no reference unless inf erentially, and when, by the 67th and 68th clauses of the Act", they show that they considered that by providing for the punishment of the giver of a bribe they had not provided for the punishment of the receiver of it. For these reasons I feel compelled to hold that the petition is not proved ; that the re- spondent. Robert Bell, was duly elected and returned ; and shall certify accordingly to the Speaker. I shall also report to the Speaker that no corrupt practice has been proved to have been committed at the said election ; and that there is no reason to believe that corrupt practices have extensively prevailed at the said election. Costs to follow the event. (9 Journal Legis. Assem., 1875-6, p. 20.) 1875.] WELLAND. ].S7 WELLAND (2). Before Mr. Justice Gwynne. Wklland, mh, 18th and S8th Hay, 1875. William Buchner, Petitioner, v. James G. Currie, Res'pondent. Principles guiding a Judge in deciding Election Cases — Intimidation oj Government Servants — 'Corrupt Treating — Evidence as to offer of Bribes — Delegates to a Convention, not Agents — Agency and Siib- Agency — Corrupt Practice by a taverii- keeper as a Sub- Agent — 32 Vic, c. 21, ss. 61 and 66; 36 Vic, c. 2, s. 2. Before subjecting a candidate to the penalty of disqualification, the Judge should feel well assured, beyond all possibility of mistake, that the offence charged is established. If there is an honest conflict of testi- mony as to the offence charged, or if acts or language are reason- ably susceptible of two interpretai ions, one innocent and the other culpable, the Judge is to take care tliat he does not adopt the culpable interpretation unless, after the most careful consideration, he is con- vinced that in view of all the circumstances it is the only one which the evidence warrants his adopting as the true one. The responaent was charged with intimidating Government servants, during his speech at the nomination of candidates, by threatening to procure the removal of all Government servants who should not vote for him. or who should vote against him. The evidence showed that, though in the heat of debate, and when irritated by one XJ., he used strong language, there was no foundation for the corrupt charge ; and as it should not have been made, the costs in respect of the same were given to the respondent against the petitioner. About an hour after a meeting of a few friends of the respondent at a tavern, one of their number was sent some distance to buy oysters for their own refreshment, of which the parties and others partook. The following day a friend of the respondent treated at a tavern, and not having change, the respoiident gave him 25 cents to pay for the treat. Held not to be corrupt treating, nor a violation of 36 Vic. , c. 2, s. 2. Where the evidence as to the offer of bribes was contradictory, and the parties making charges of bribery appeared to have borne indifferent characters : Held, that the offer of bribes was not satisfactorily established. The delegates to a political convention assembled for the purpose of selecting a candidate, who never had intercourse with the candidate selected, and who never canvassed in his behalf, cannot be considered as agents for such candidate. The respondent gave to one H. some canvassing books, with directions to put them into good hands to be selected by him for canvassing. H. gave one of the books to B. , a tavern-keeper, and B. canvassed for the respondent. B. was found guilty of a corrupt practice in keeping that part of his tavern wherein liquors were kept in store, so open that persons could and did enter the store-room and drink spirituous liquors there during polling hours on the day of election. Held, that H. was specially authorized by the respondent to appoint sub-agents, and had under such authority appointed B. as a sub agent, and that the corrupt practices committed by B. as such sub-agent of the respondent avoided the election. 188 PROVINCIAL ELECTIONS. [a.D The respondent was ordered to pay the costs of the petition and trial, except the costs of certain issues found in favor of respondent, part of which costs' were to be paid by petitioner to the respondent ; and as to part, each party was ordered to bear his own. The petition contained the usual charges of corrupt practices. Mr. James A. Miller and Mr. Peter McCarthy for peti- tioner. Mr. Arthur S. Hardy, and the Respondent in person, for the respondent. The evidence in support of the charges against the re- spondent and his agents is set forth in the judgment. GwYNNE, J. — At the close of the evidence taken in this matter, the counsel for the petitioner rested his case upon five points upon which the respondent should be unseated. (1) Upon the ground of intimidation by himself personally in his speech at the nomination, as to Government servants on the Welland Canal; (2) upon the ground of treating, commencing at the oyster supper at Whiteman's; (3) upon the ground of bribes offered, as is alleged, to Harper, William Brown, and one Archer, by one Hellems, who, as is contended, was an agent of the respondent ; (4) upon the ground of undue influence alleged to have been-exer- cised by one Hagar, who, as is contended, was an agent of the respondent, and as such threatened one Samuel Fraser that he would lose his employment as bridge-tender at the canal unless he should vote for the respondent ; and (6) for corrupt practices committed in violation of sees. 61 and 66 of 32 Vic, cap. 21, by one Luther Boardman, who, as is asserted, was an agent of the respondent, and for whose act the respondent is to be held responsible. Before subjecting a candidate to the penalty imposed by sub-sec. 2 of sec. 3 of 36 Vic, cap. 2, I should feel well assured, beyond all possibility of a mistake, that the offence charged, which is attended with such consequences, is established. If there be what appears to be an honest conflict of testimony as to the existence of these matters which constitute the offence charged, or if these matters 1875.] WELLAND. 189 consist of acts or language which are reasonably suscep- tible of two interpretations, one innocent and the other culpable, a very grave responsibility is imposed upon the Judge to take care that he shall not adopt the culpable interpretation unless, after the most careful considera- tion he is able to give to the matter in hand, his mind is convinced that, in view of all the circumstances, it is the only one which the evidence warrants his adopting as the true one. Now, as to the first of the above charges, namely, intimidation in the respondent's speech at the nomina- tion, it is to be observed that it is difficult to believe that it could have entered into the mind of any man of ordinary intelligence — not to say of a gentleman of the legal profession and of considerable experience in public life — at the nomination, in the presence as well of his opponent and of his friends, as in the presence of his own friends, to threaten that he would procure the removal of all the Government servants at the canal who should not vote for him or who should vote against him ; and it seems quite incredible that if such a threat had been made in such a presence, that the utterer should not have been instantly called to account flagrante delicto. But there is abundance of evidence by reason of which I have no difficulty in arriving at the conclusion that, although in the heat of debate, and under the irritation caused perhaps by the manner in which the respondent was in- terrupted by the witness Upper, he may have made use of some language which had better have been left unused, there is no foundation for the corrupt charge, namely, of intimidation, which has been made against him ; and I am of opinion that this charge should not have been made, and I shall therefore direct that so much of the costs of the petition and trial as relates to this charge shall be paid by the petitioner to the respondent. As to the second charge , involved in what is contended to be corrupt treating, by reason of the oyster supper at AVhiteman's tavern, and of the treating which took place 190 PROVINCIAL ELECTIONS. [a.D. at the same tavern on the following day, I am of opinion upon the evidence, and so find as a matter of fact, that the meeting which had been held at Whiteman's about an hour before the oyster supper was a meeting of a few friends of the respondent, and that after having transacted what business they may have had in hand, and about three- quarters of an hour to an hour after the close of the meet- ing, they for their own refreshment procured one of their number to go to Port Colbome, some little distance off, to buysome oysters, which having been procured, were at their own expense, or at the expense of some of them, served up at Whiteman's tavern ; and although one or perhaps two persons who had formerly, been and were still believed to be friends of the respondent, and to be then present as such, but who in this election afterwards proved not to be his friends, partook of thpse oysters at the expense of the others who supplied them, I can see nothing which can in this supper be properly construed to be corrupt treating, and it was not contended to be a violation of the 2nd sec. of 36 Vic, cap. 2. The complaint as to what took place on the following day consists in this : that Dr. Haney, who was going about with the respondent, visiting a few of the latter's friends, did, as he swore is his constant practice when meeting his friends, treat some of them at the tavern, and that one Gagner, a friend of the respond- ent, did in the respondent's presence treat a friend of his own, and not having any small change about him, did receive from the respondent 25 cents to pay for the treat. Now, whether or not these acts or any of them were done with the corrupt intent of influencing the election, is a question of fact to be determined according to the circum- stances disclosed in the evidence. The language of Mr. Justice Blackburn in the Bewdley case (1 O'M. and H. 20) is the most appropriate upon this point, and I hesitate not to adopt it in leading me to ray decision upon this point of the case. He says : " In considering what is corrupt treating and what is not, we must look broadly at the common sense of the thing. There is an old legal maxim 1875.] WELLAND. 191 Inter apices juris summa injuria. To go by the strict letter of the law often would produce very grave wrong. If I was to say that an election was void upon a single case of that sort, we should be going to the apices juris, and the result would be summa injuria; therefore, the inquiry must be as to the extent and amount of such cases." To hold such an amount of treating as is relied upon in this case, and given under the circumstances appearing in the evidence, to be corruptly given with the intent of influenp- ing the election, would be well calculated, as it appears to me, to bring a most wholesome law into contempt. I must therefore hold that this charge is not established. As to the charge involved in the third of the above heads of complaint : Harper, whose story has in it some particulars which appear to be improbable, and who by his own account is not a person of the most incorrupt integrity, is flatly contradicted by Hellems, the person whom he accuses of offering to him the bribe which he says was offered to him ; Brown is contradicted not only by Hellems but also by another witness ; and Archer is contradicted by Hellems and also by three or four other witnesses. In view of these contradictions, and of the in- different characters which appear to be borne by the persons making these charges, I cannot arrive at any other conclusion than that it is not established to my satisfaction that the bribes which these witnesses allege to have been offered to them respectively by Hellems were in fact ever offered to them ; so that it becomes un- necessary to inquire how far the fact of Hellems having been upon one or two occasions, or perhaps oftener, specially requested by the respondent to attend at public meetings of the electors for him and in his stead, and to address the meetings on his behalf, would constitute him an agent for all those acts done to promote the respondent's election, and would render the respondent responsible. As to the fourth charge, Samuel Eraser and his wife, who make the charge, are contradicted by Hagar, the person against whom it is made. There is no evidence 192 PROVINCIAL ELECTIONS. [a.D. whatever that Hagar ever canvassed a single vote, unless it be that he canvassed Fraser, who makes the charge against him, and he himself denies that he canvassed him or any one else. He appears to have been one of the Reform delegates sent to the convention which put forward the respondent as the candidate of the Reform party. He does not appear to have been spoken to by the respondent, or to have been directly or indirectly requested to act in any particular for him. A canvassing book containing the names of the voters in the town of Welland appears to have got into his possession, .but how it did get into his possession does not appear, and he distinctly swore that he never made any use of it. NoWj although the respondent was put forward by the Reform Association as the candidate of the party, and although he accepted the nomination, and although a candidate put forward by a political association may so deal with the members of the Association, and may so place himself in their hands with the view of availing himself of the benefits of their organization, and of the influence of the individual members of the Association, as to make them his agents, for whose acts he should be responsible, still it appears to me that it would be going altogether too far to hold that every delegate to a convention assembled for the purpose merely of selecting a candidate, although he never had any intercourse directly or indirectly with the candidate, and although he does not appear to have acted in any instance or canvassed on his behalf, unless in the sole particular case which is charged and relied upon in avoiding the election, is an agent of the candidate, so as to make him responsible for the act complained of. If it could be so held, it would make a delegate opposed to the nomination of the candidate selected by the majority, able to defeat his election by a single case of bribery com- mitted for the express purpose of invalidating the election. In short, in such case the acceptance of the nomination by the candidate selected by the majority would have the effect of constitutiing every member of the convention, 1875.] WELLAND. 193 whether a supporter or opposed to the nomination, of the candidate selected, his agent, for whose acts the can- didate would be responsible. Such a result would be repugnant to the plainest principles of justice. I cannot, therefore, upon the evidence in this case, arrive at the conclusion that Hagar was an agent of the respondent, for whose acts he should be held responsible to the avoid- ance of the election, even though it should be true that Hagar did commit the offence of which Eraser and his wife accuse him, as to which I do not, for this reason, think it necessary to express an opinion. There remains to be considered the fifth ground of complaint, for the consideration of which I reserved my judgment. That Luther Boardman has been guilty of corrupt practices, and has thereby exposed himself not only to the penalty imposed by sec. 66 of 32 Vic, cap. 2, but also to the disqualifications enacted by sec. 49 of 34 Vic, cap. 3, there can be no doubt. Upon the facts disclosed in evidence, and notwithstanding his own statement to the eiFect that he cautioned people against going into the open store-room in rear of his shop and tavern, where the liquors to supply the tavern were kept, I can come to no other conclusion than that he, being a tavern-keeper, did, at the very spot where the poll in the township of Crowland was being taken, and during the polling hours, keep that part of his tavern wherein his liquors were kept in store so open that all persons attending the poll for the purpose of voting could and did, at their free will and pleasure, enter the room and drink spirituous liquors there kept, and I have no difiiculty in determining that this store-room was kept accessible in the manner in which it was, in order that the persons attending the poll might so enter it and supply themselves with drink at their pleasure. If such conduct as is here brought home to Boardman were not pronounced to be a plain violation, of sec. 66 of 32 Vic, cap. 21, that section would be a dead letter. But it is not only as in violation of sec. 66 that the conduct of Boardman is 194 PROVINCIAL ELECTIONS. [A.D. culpable. It was in every way calculated to influence and corrupt that class of loose and undecided electors who hang around polling places, withholding their votes, un- decided until the last moment how they shall vote or whether or not they will vote at all, and who, knowing that this place was open, where their appetites for intoxi- cating drinks could be gratified during the entire day, could readily be induced, when their senses might be steeped in inebriety, to vote for the candidate known to be the friend of their liberal entertainer. The only question which remains is whether or not the respondent is to be affected by, or whether he can claim exemption from responsibility for Boardman's corrupt conduct — whether, in fact, Boardman is or is not to be regarded as an agent of the respondent so as to make the latter responsible for the acts of the former. The law of agency as applied to election petitions has been expressed by different learned judges to be quite different from that applied to the common relation of principal and agent. " A candidate," as is said by Grove, J., in the Taunton case, 30 L. T. N. S., 127, "may be, and I would add that, unless the wholesome Act passed for the purpose of preventing corrupt practices at elections be wholly frustrated, he must be responsible for the acts of one acting on his behalf, though the acts are beyond the scope of the authority given, or indeed in violation of the most express injunctions." So far as regards the present question, to establish agency in Boardman for which the respondent would be responsible, he must be proved to have, by himself or by an authorized agent, employed Boardman to act on his behalf, or he must have to some extent, either through himself or by the act of an authorized agent, put himself in Boardman's hands, or have made common cause with him, or have put faith in him, or have availed him- self of his services in doing what is currently done by a committee-man or canvasser for promoting the election, or have been aware that he was so acting for him without 1875.] WELLAND. 195 repudiation. In the Bewdley caie (1 O'M. & H. 18), Blackburn, J., has held that an agent made the candidate responsible for the acts of a sub-agent as well as the agent, even though the candidate did not know and was not brought into personal contact with the sub-agent. I proceed now to consider the evidence upon which the question in this case turns. It appears that a convention of an association called the Reform Association, was called for the purpose of nominating a candidate in the Reform interest. To the convention each municipality in the electoral division elected eight delegates, which eight delegates were in the habit of acting (with one of their number as chairman) as local branches or committees of the Reform Association in their respective municipalities. The convention of delegates so constituted nominated the respondent as the candidate to stand in the Reform interest. The respondent had been put forward in like manner upon former occa- sions. Mr. Price, Reeve of Welland, himself a member of the convention, says that the committees of the Reform As- sociation always acted for the Reform candidate ; that it Jiad always been understood that they were to act for the Reform candidate; that Mr. Currie, the present respondent, had stood for the county in former elections, and that witness never knew him to repudiate those committees, whiqh have always acted for the candidate, although he says that Mr. Ourrie never attended the committee meet- ings. In former elections a central committee of the Reform Association used to meet, but none met at this election ; but he was not aware of any reason why there was no meeting of a central committee on this election. The custom had been on former occasions for the members of the committees of the Reform Association to act as com- mittees for Mr. Currie to promote his election, and re- ports were made from the local committees to the Central Reform Committee. ^ U 196 PROVINCIAL ELECTIONS. [A.D. I John Henderson, Reeve of Crowland, a most respectable witness, who gave his testimony in a most candid manner, and who impressed me with the belief that he did not wish any corrupt practices to be adopted by any one in promotion of the respondent's election, says that he was chairman of the committee of the Reform Association for the township of Crowland. The committee, consisting of eight, including himself, were elected as delegates to the convention which nominated Mr. Currie, and he was a warm supporter of Mr. Currie on former elections. Upon this election he was an active canvasser, and worked for Mr. Currie, and that was well known. Mr. Currie wrote to him appointing a meeting of electors to be held for the township of Crowland, and requesting him to get his friends to turn out and attend the meeting. Mr. Currie himself came to the meeting, which was held in the Town Hall; but before the meeting at Boardman's tavern, where he was staying, he gave to witness 10 or 12 can- vassing books, with the names of all voters printed in each; made up by Mr. Currie himself from printed voters' lists, which he cut into slips and pasted in books. These books, Henderson says, were given to him by Mr. Currie to put " into good hands to be selected by him for canvassing." He does not know that Mr. Currie knew that he was chairman, but he knew that he (Henderson) had canvassed before for him. These books Henderson distributed among the other members of the Reform Com- mittee of the township, and one he gave to Boardman, not, however, a member of the committee. The intention was that all were to report the progress of their work to the central committee of the Reform Association on nomi- nation day ; but the business at the nomination was so protracted that the central committee did not meet. When Mr. Currie gave the books to Henderson, he said they contained the voters' lists, and " we were to see how the parties would go." Boardman was the only canvasser in the school section where he lived. On the Saturday before the polling day there was a meeting of the com- 1875.] WELLAND. 197 mittee of eight and a few others at Boardman's. Bpard- man himself was there, and he, as well as others, made a return of the result of his canvass, and stated that there would be a large majority for Mr. Ourrie in his section. He made a return showing a good majority. At this meeting arrangements were made as to bringing up voters to the poll early on the Monday, and on the Sunday, Henderson gave Mr. Currie a general return of the result of the canvass of the township. Boardman, as Mr. Henderson says, was expected to work like any other Reformer. Boardman did not say he would attend to bringing up voters, but he saw Henderson on the Saturday before polling day, and told him that all was right. Mr. Currie himself says that although lie appointed no com- mittee specially to act for him, he did ask some of his friends to work for him. He says that he sent the can- vassing books in parcels to his friends in the different municipalities. He knew that Henderson was working for him, and in that capacity he gave him the books, not as chairman of any committee. He thought the books would be of service to his friends, and he gave them to Henderson at Boardman's to enable them to advance the canvass for him, and-to let them see who the voters were. He left the election, he says, to his friends, and Henderson had been a friend of his for three years. He appointed no scrutineer but at four polling places ; the rest were appointed by the local committees in the respective muni- cipalities. The committee of which John Henderson was chairman appointed James Henderson, John's brother, scrutineer for the poll in the township of Crowland, held where Boardman resided, and on the Sunday before the poll- ing day John informed the respondent of his appointment, and he approved of it. The respondent says that he him- self despatched the posters for meetings by mail or parcel post, and Boardman says that the posters for the meeting at Crowland came to his address. Boardman, in the course of his canvass, ascertained that a Mr. Brough, although a friend of Mr. Cuxrie's, was cross about some slight, and he 198 PROVINCIAL ELECTIONS. [a.D. advised Mr. Currie that it would be advisable for him to go and see him. He says that the book which he had was handed to him for the purpose of his canvassing the school section in which he lived in Mr. Currie's behalf, and although he did not, as he says, go through the section, he canvassed all persons who came to the tavern and shop, and made, as we have seen, a return to Mr. Henderson of the result. Under this evidence it seems clear beyond a doubt that John Henderson was the agent of the respondent, and one specially- authorized to appoint other agents under him to canvass and act in the respondent's interest. It appears that he did appoint Boardman as such sub-agent, and, upon the whole, I am compelled to say that upon this evidence I can arrive at no other conclusion than that such a degree of assistance was rendered by Boardman in virtue of the selection made of him as a trustworthy person, to whom the interests of the respondent were con- fided by John Henderson in virtue of the power in that behalf vested in him by the respondent, that the re- spondent must abide the consequences and be responsible for the malpractices , of Boardman, although such mal- practices were committed without his actual knowledge or consent. The 3rd section of 36 Vic, cap. 2, in that respect is very explicit and very peremptory. My painful duty, in accordance with the view I feel compelled to take of the evidence, is therefore to declare the election of the respondent to have been and to be null and void, by reason of corrupt practices committed by Luther Board- man, an agent of the respondent, in the promotion of his election, but which corrupt practices were committed by the said Luther Boardman without the actual knowledge or consent of the respondent. I do further order that the respondent do pay to the petitioner the costs of the said petition and trial, except so much of said costs as may relate to the second, third, and fourth heads of complaint above in this my judg- ment enumerated, as to which several heads of complaint 1875.] EUSSELL. 199 I do order that each party do bear and pay his own costs, and except also so much of the said costs as relate to the first head of complaint herein above enumerated, the costs of which I do order that the petitioner do pay to the respondent. With his certificate to the Speaker of the result of the trial, the learned Judge reported that Luther Boardman was proved to have been guilty of corrupt practices, in this, that being a tavern-keeper and as such authorized to sell spirituous and fermented liquors, he the said Luther Boardman did, in violation of the provision of the statute in that behalf, keep open his said tavern during the hours of polling on the day of the election; and that he, being an agent of the said James George Currie, did give, furnish and supply, at a meeting of electors assembled for the pur- pose of voting at one of the polling places at which votes were polled in the township of Crowland, at the said election, spirituous and fermented liquors during the hours in which the poll was being taken at the said polling place, to all such persons, electors and others, as were desirous of partaking of such spirituous and fermented liquors, and many of whom did partake thereof. (9 Jmhrnal Legis. Assem., 1875-6, p. 5.) RUSSELL. Before Chancellor Spkagge. L'Orignal, 3rd and 4th June, 1875. Robert Ogilvie et al, Petitioners, v. Adam Jacob Baker, Bespondent. Corrupt practices by Agent — Admission of Counsel — Keeping tavern open and treating on Foiling Day. One F. , a tavern-keeper, was given $5 by the respondent, and requested to appoint a scrutineer to act for the respondent at the poll on polling day. . F. kept his tavern open on polling day, and various persons treated there during poUing hours. Counsel for the respondent, after the evidence of the above facts had been given, admitted that F. was an agent of the respondent, and that his acts were suflScient to avoid the election. 200 PEOVINCIAL ELECTIONS. [A.D. HeM, that although the Court did not adjudicate that the respondent, by giving the $5 and requesting F. to appoint a scrutineer, had constituted him an agent for all purposes, it was the practice of the Court to take the admission of counsel in place of proof of agency, and therefore the admission of counsel as to F.'s agency was sufficient. Held further, that F. , as such agent, had been guilty of a corrupt prac- tice in keeping his tavern open on polling day, and that such corrupt practice avoided the election. The petition contained the usual charges of corrupt practices. Mr. J. K. Kerr for petitioner. Mr. John O'GonTior, Q.C., for respondent. The evidence of the corrupt practices on which the election was avoided was as follows : Michael Fouhert : I keep a tavern. Mr. Baker was at my place on the Sunday before the election. He gave me authority to appoint an agent for him, and gave me $5 on the Sunday and told me it was to pay him. I sent for Antoine Lamotte and asked him if he would act as agent at the poll for Mr. Baker, and that I would see that it was all right. The polling place was about three or four acres from my tavern. I don't recollect Baker being at my place during the polling day. I was back and forward during the day. I think Kelly treated, Kobillard treated, and I think Toilferd treated during the day. I don't remember anybody else. I don't remember whether I treated or not, but I may have done so. Michael McArdle : Was at St. Joseph's Village on poll- ing day. Was at Foubert's in the morning ; was treated there ; this was between 9 and 10 o'clock. There were several treats. Foubert was there ; do not know that he treated ; seven or eight persons there, Mr. O'Connor stated that the facts brought out in the evidence of Michael Foubert, who he admitted was an agent of the respondent, were sufficient to avoid the elec- tion, and he offered to do so ; the respondent to be called to explain the personal charges. Mr. Kerr accepted this proposition. 1875.] EXISSELL. 201 The respondent was then called, and after denying the charges of personal bribery adduced in evidence against him, stated as to treating : " My general habit as to treat- ing is ' rather free.' I seldom have entered a tavern and left without treating. The custom of the country is to treat freely at taverns, and T followed out my usual custom." Spragge, C, said that the evidence had established cor- rupt practices by an agent, but that no personal charges against the respondent were proven. He had no reason to believe that bribery or corrupt practices had extensively prevailed throughout the constituency. With regard to the agency of the man Foubert, he held that he had acted in gross violation of the law. He did not adjudicate that the respondent, having left $5 with Foubert to engage a. scrutineer for the polling day, had constituted him an agent for all purposes, but simply as an agent for that particular purpose ; but as it was the practice of the Court to take the admissions of counsel in proof of agency, he felt warranted in taking the admission now made by the respondent's counsel. Foubert being guilty of the corrupt practice of keeping his house open on polling day was sufficient to void the election. The practice on former occasions was to manage the elections through the agency of third persons, and many instances were on record of very corrupt practices by agents. It was to meet this end that the law was made as stringent as it is, because it was manifest that unless the candidates themselves were held responsible for the acts of their agents, there would be very corrupt practices in the elections. He thought the law was a very necessary one to meet that evil. As to the treating in this case, he did not think that it' had been brought home to the respondent within the meaning of the law. He might say tha;t'a practice more demoralizing than the system of treating in vogue could scarcely exist. It was a pity, he thought, that public 202 PROVINCIAL ELECTIONS. [A.D. sentiment runs the way it does. A man goes into a tavern, and it seems to be expected of him as a matter of course that he should give ardent spirits to whatever persons were there present, and unless he does so he is considered of a mean and niggardly disposition. The con- sequence was the very widespread evil of intemperance. There was not a case which came before him in which this evil had not forced itself upon his attention, and it was one which prevailed in all parts of the country alike. He thought the personal charges had been explained, and to his mind satisfactorily explained, in an ingenuous and honest manner. Mr. Kerr had said very properly that they could not be pressed upon him after the evidence of the respondent. He could not have found in the face of the denial that these personal charges were established. He did not say that the denial of the respondent alone would have relieved the Court from the necessity of adjudicating on the personal charges, but at least as much weight was due to the respondent's evidence of the denial of the charges as to the evidence against him, and it was to himself satisfactory that Mr. Baker had purged himself so thoroughly from the personal charges that had been made against him. These personal charges the Court did not give effect to except on clear and satisfactory evidence, and certainly in this case such evidence had not been adduced. Therefore, it only remained to certify to the Speaker that the election was void. With regard to costs, they would follow the event. With his certificate to the Speaker of the result of the trial, the learned Judge reported that Michael Foubert was proved to have been guilty of corrupt practice at the said election. (9 Journal Legis. Assem., 1875-6, p. 6.) 1875.] CORNWALL. 203 CORNWALL. Before Chancellor Spragge. CoBlsrwALL, 8th June, 1875. John Goodall Snetzinger, Petitioner, v. Alexander Fraser McIntyre, Respondent. Bribery by an Agent — Admission of Counsel. A voter who had been frequently fined for drunkenness was canvassed by C. to vote for the respondent, and was asked by him " how much of that money " (paid in fines) ' ' he would take back aiid leave town until the election was over. " Counsel for the respondent admitted that C. was an agent of the respond- ent, and that the evidence was sufficient to avoid the election. Held, that the election was void on account of corrupt practices by an agent of the respondent. The petition contained the usual charges of corrupt practices. Mr. B. A. Harrison, Q.C., Mr. D. B. Maclennan, and Mr. Ghisholm, for petitioner. Mr. J. K. Kerr, and the Bespondent in 'person, for respondent. The evidence given at the trial was as follows : Michael Loo : I am an elector of the district, and voted at the late election. I was asked to vote for McIntyre by Robert Conroy the evening before the polling day. That was the first time he saw me about my vote. There was another man present at the time. He saw me in my own house. I believe Dr. Allen occupies the position of Police Magistrate^ and I know him. I had been fined several times by him. I paid my fines before the election. I did not like it at all. I paid upwards of $100 in fines, and I suppose it was well known. Conroy and I talked of it that night. I was in bed when he came, and not feeling well. I told my son to get up and see who was there. I was called to come down-stairs, and saw Conroy and another man talking to my son. Conroy produced a bottle of whiskey. I refused to drink that night, though they told me to take hold and drink some. They urged 204 PROVINCIAL ELECTIONS. [A.D. ' me to drink, but I persisted in my refusal. My son drank. He asked me if I was going to vote with the Mclntyre party. I told him I could not give an answer, as my mind was not made up. He said I must know how I was going to vote. I told him I would not know until the morning. He asked me what they had done to put me against them, and I spoke of the money taken from me by the fines. I said that that company had taken too much money out of me for me now to support them. He replied, asking me how much of that money I would take back and leave town until the election was over. I told him I never left my country yet dishonestly, and I would not do so now. He replied, Don't vote to-morrow without coming to see me, and then bid me good night and went off. I am some times too fond of whiskey. Conroy is a hotel-keeper in this town. I was fined for drinking whiskey. He did not say whether he had money to pay my fines. I did not leave town, nor did I see him "before I voted. That was the only time he was with me. Cross-examined : No money was paid to me by Conroy or by any one else. I took it that Conroy promised to return me some of the fines on condition of my leaving town. I do not belong to any particular place. I lived about twenty years in the States. I have lived here since March a year ago, and have since that time been fiiied to the extent of upwards of $100. I have been drunk without being fined. I take it whenever I can get it handily. • Mr. Kerr admitted that Conroy was an agent of the respondent, and stated that he considered this evidence sufficient to void the election, and that the respondent would agree to have the election declared void. Mr. Harrison agreed to this. Speagge, C. — The election will be declared void on account of corrupt practices by an agent, but not by the candidate, nor by any one with his knowledge and con- 1875.] DUNDAS. 205 sent. I shall report that corrupt practices were not proved before me to have extensively prevailed in the election. With his certificate to the Speaker of the result of the trial, the learned Judge reported that Robert Conroy was proved to have been guilty of corrupt practices at the said election. (9 Journal Legis. Assem., 1875-6, p. 6.) DUNDAS. Before Chancellor Spragge. MoRBiSBUKG, 14th, 15th and 16th June, 1875. Simon S. Cook, Petitioner, v. Andrew Broder, Respondent. Meeting of Electors — Treating at — Bribery— 'Evidence of corrupt offer — Treating on Nomination. Day a corrupt practice — Treating Act, 7 Wm. III., u. 4; 32 Vic., c. 21, s. 61; 36 Vic., c. 2, as may be occasioned to the petitioner by the granting of this apphcation. During the cross-examination of a witness cajled by the petitioner, on the case against the respondent, the follow- ing evidence was given : William Peters : I live at Victoria Road Cross-examined : I kept my tavern open on polling day, and sold liquor as usual. There was no polling place within 3 miles of my house, and I was told that I need not shut it. [The evidence on which Peters was held to be an agent of the petitioner is omitted]. Mr. Maclennan, on the recriminatory case, contended that the selling of liquor on polling day by William Peters, an agent of the petitioner, destroyed the petitioner's right to claim the seat. 256 PROVINCIAL ELECTIONS. [a.D. Mr. Boultbee objected, as there was no such charge in the particulars. Mr. Maclennan : The evidence on this charge was elicited from Peters, who was called as a witness for the petitioner, and he made the statement on cross-examination, to which no objection was taken. Mr. Boultbee: Peters was called as a witness on the peti- tioner's case, and this evidence bears on the recriminatory- case. The charge is not in the particulars, and the witness made the statement sua sponte. Draper, C. J. A. — It is not on the record that I can find, in any shape ; nor was any application made to put it there. The evidence affecting the result of the election was as follows : Malcolm McDoiujall : I was at Simpson's hotel at Cobo- conk about 2 or 3 p.m. on the polling day, and about 5 or 6 miles from any polling place, while I was travelling from Kirkville to Somerville. I treated about six persons in the bar-room ; some of them were strangers to me. Decanters were put down for people to help themselves. [The Chief Justice on the day on which he delivered judgment, made the following note opposite the above evidence : " Mr. Maclennan objected to this evidence, as the charge was not mentioned in the particulars. I re- ceived it subject to the objection. I did not think of noting this at the time ; but now (18th August), being reminded of it by Mr. Maclennan, I have a recollection that it was so, but not the same as if I had noted it at the moment. I did not then think it of any great import- ance."] Counsel for the petitioner contended that as it was shown decanters were put down for people to help them- selves, the presumption was, that spirituous liquors had been drunk on the occasion referred to by the witness. • 1875.] NORTH VICTORIA. 257 The Court was then adjourned until the 18th August, at Osgoode Hall, when the following judgment was delivered : Draper, C. J. A. — The unsuccessful candidate, Duncan McEae, is the petitioner, and the respondent, John David Smith, has filed recriminatory charges against the peti- tioner. The first case relied on by the petitioner is stated in the particulars thus : That James Ellis and one Mooney, agent of respondent, bribed Thomas Coulter and Thomas Hodgson by the payment of a disputed debt between Coulter and Hodgson. The facts proved were that Mooney asked him to vote for the respondent. Coulter would not promise nor did he refuse, but he said that there was a debt due to him for seven or more years by a firm of John C. Smith & Co., John C. Smith being the respondent's uncle. Mooney promised to write and get the -debt paid if he could. Afterwards Coulter saw respondent and Ellis together, and again referred to this claim. Ellis said that respondent was not a member of the firm when this claim arose (which was proved to be the case). Respondent said he would write to his uncle, and if it was right his uncle would no doubt pay it. Coulter and Hobden (not Hodgson, as stated in the par- ticulars) voted for the respondent. Hobden was not present at any of these conversations, nor interested in them, and it does not appear that anything was done in the matter. I think the evidence entirely insuificient to sustain the charge. The next charge relates to an oyster supper at Buck's hotel, in Minden. There had been an election meeting in the Town Hall — about five minutes' walk from the hotel. After this meeting was over some of the respondent's friends remained together consulting about the election, and afterwards went to Buck's, where some of them boarded. There it was proposed to have an oyster supper, which Frederick J. Shove, one of the, party, ordered. He 258 PROVINCIAL ELECTIONS. [a.D. said he had been working hard for the respondent during the day, and needed refreshment. Respondent had pre- viously gone to his own room, and Shove invited him to come down and join them. Eespondent was half undressed and declined, but at the same time he urged Shove to do nothing to prejudice the election, and Shove went down, and seven or eight persons sat down to supper. The respondent gave evidence respecting this to the following eifect : I began to undress, when Shove came in and said, " Don't you want to buy a load of oats ?" I asked him, " What do you mean ?" He said, " There are a few of us down stairs who are going to have some oysters." It must then have been 11.30 p.m. He invited me to join them. I excused myself, and he said, " Can't Jim Ellis pay for this ?" I said I thought he could. He said, " Very well," and turned down stairs. Shove swore he thought the supper should be given. It' was an under- standing it should be for the benefit of respondent, but respondent did not like the idea of giving refreshment. Shove thought there was an arrangement that it should be charged by Buck to respondent as a sale of oats. Shove said that he suggested this. Buck's charge was $13.20, which was , for the supper only. Shove made up the account a day or two after the supper. Oats were thirty- two cents a bushel, and Shove swore that he thought that was the way the amount was got at. Shove made it up with one Lott, Buck's book-keeper or bar-tender. He applied for payment, and Shove said forty- one bushels of oats would cover it. He also stated on re-examination that this supper was ordered without any thought of in- fluencing Buck, and that respondent said to him (Shove) to be very careful to do nothing to interfere with the election. He said that they were careful, that the oysters were to be charged as oats, and that it was arranged with the bar-keeper it should be charged as oats ; and he concluded his evidence by saying, " As we were working all day for respondent, I thought naturally that he ought to pay for our refreshment. I intended all along to have it charged 1875.J NORTH VICTORIA. 259 to him. I thought it necessary to forward the election." Some of those at the supper were boarders at the hotel. James Ellis spoke of this supper, and said he was one of the party. He thought $3.20 would have been ample payment for the supper. He heard a talk about oats after the supper was mentioned. Gaynor, one of theparty who had been at the meeting, produced a paper ou which was written, " Twenty bushels of oats at forty cents," and they laughed, and the paper was thrown under the table. As far as he knew, the supper had nothing to do with the election. The oysters were got from Gaynor 's, who keeps a grocery near the tavern. When Shove came down from seeing respondent, he stated that respondent had said, " Whatever Jim says." The witness understood that he was meant by " Jim." The particular to support which the foregoing evidence was given, is that one Frederick Shove, of the village of Minden, an agent of the respondent, and with his know- ledge and consent, provided and furnished drink and other entertainment to a meeting of electors assembled for the purpose of promoting the election, at the hotel of D. Buck, in the Village of Minden. I think this particular is not proved by the evidence given. I assume it to be amended so as to obviate any minor objections, but it fails in my opinion, on the essen- tial ground that Shove is not shown to be generally the respondent's agent, nor particularly to furnish this enter- tainment. Mr. Shove (whose manner appeared to me to indicate that he entertained no mean opinion of himself) desired to have an oyster supper at the respondent's ex- pense, and to evade the law against treating, which he feared might apply, proposed the absurd scheme of an imaginary purchase of oats for a sum much in excess of what the supper would have cost, and then goes to the respondent, who was just going to bed, to invite him to join them, concluding that if he accepted the invitation he would pay the bill. The respondent very prudently declined, coupling the refusal with a caution against any 18 260 PROVINCIAL ELECTIONS. [A.D. improper practice. Shove made the arrangement with the bar-keeper, and afterwards made up the account for him. I suspect the bar-keeper at first looked to Shove for payment, though scarcely for the sum of $13.20, for I cannot find that Shove ever pretended to be respond- ent's agent, or, even on Shove's own statement, that the respondent gave him actual or implied authority to act as his agent on this special occasion. Looking at Shove's conduct and his account of the matter, I think his evi- dence does not prove this charge, and the only plausible ground for sustaining it is the respondent's statement that Shove said to him, " Can't Jim Ellis pay for them ?" and the respondent answered, " He thought he could." Mr. Ellis's evidence of what Shove said when he came down, of the result of his inviting respondent to join them, does not sustain Shove's account of it, nor does Ellis appear to have said or done anything in regard to ordering or authorizing the supper to be ordered. In fact. Shove re- presents he ordered it before he went up to respondent's room. I think it would be an extreme construction to hold this supper to be a violati'on of section 61 of the Election Law of 1868. Mr. Shove's language might be held sufficient as against himself to subject him to the penalty mentioned in the 6oth section of the Act, but not to avoid the election. I find for the respondent in this part of the case. In Hicks's case the charge is that Andrew Washington (agent for respondent), on the polling day hired the teams, horses and vehicles of George Hicks and David Mitchell to convey voters to the poll, and also paid them for horse hire, furnished the keeping of two teams, and gave dinner to them to induce them to vote for respondent. The facts, as well as I can gather from the evidence, are that Hicks had a team of his own and was employed by Washington to draw^ lumber for him, Washington owning a saw mill. Hicks and Mitchell were voters, and Hicks had been canvassed by a Mr. McLaughlin for re- spondent. Washington had been written to by respondent 1875.] NORTH VICTORIA. 261 for his vote and influence, and did not answer the letter though he supported respondent. On the polling day, Washington, who was going to the poll, asked Hicks and Mitchell to go with him and vote for respondent, saying that he would take them and bring them back, and tbey could feed their horses and have dinner. Hicks said to Mitchell, " We should vote for Smith," and Washington said " Yes, vote for Smith," and they agreed to go. Washington then sent off his foreman on some business to another place in a cutter, with one of the horses of Washington's own team, with instructions, after his errand was done, to meet him at the polling-place, and hired from Hicks one of his horses to make up his team, and paid Hicks half a dollar for his hire. Washington then drove with Hicks and Mitchell to the poll. The foreman arrived, and Washington and he drove off in the cutter, and Hicks and Mitchell, with the horses and sleigh, returned to Washington's house and got dinner. On this evidence I cannot find that Washington was acting as an agent for respondent, nor that Washington was guilty of a breach of either the 61st or the 7lst sec- tions of the Election Law of 1868. The next case on which the petitioner's counsel relied was Ralph Simpson's case. The charge is that Malcolm McDougall, an agent of re- spondent, bribed, or attempted to bribe, or offered to bribe certain electors — to wit, Ralph Simpson, of Eldon, and Mrs. McDonald, of Kirkfield, and furnished and ofiered a sum of money to the said Mrs. McDonald to use in cor- rupt practices. I find that Malcolm McDougall was an agent of the re- spondent. I arrive at this conclusion upon the statements contained in his examination before the County Judge, and McDougall's evidence confirms me in it. In regard to Simpson's statement, McDougall swore that he met him on the road on the polling day. He had no doubt he asked him to vote for respondent. He (Simpson) said he was going to vote for McRae, and that he (McDougall) 262 PROVINCIAL ELECTIONS. [A.D. said nothing to him to induce him to change, by way of promise or otherwise. Simpson swears that McDougall a.sked him to vote for respondent, but offered him nothing — did not mention money to him at all, but said he would like me to vote for respondent ; if I would, he would see me another day, and things would be made right — -that he told McDougall he would vote for McRae, and it was after this that Mc- Dougall «aid he would see him again. I think the evidence falls short of what is required to bring the case within the statute. There was no gift or loan qf money, or offer or promise of money or valuable consideration. It would, I think, be a forced and un- warrantable construction of the words " he would see me another time, and things would be made right," to hold them to import an undertaking fraught with penal con- sequences ; and McDougall's assertion on oath " that he said nothing to him" (Simpson) " to induce him to change, by way of promise or otherwise," is entitled to some con- sideration. I find for respondent on this charge, as far as respects Ralph Simpson. There is another item included in the same charge — that of having bribed or attempted to bribe certain electors — namely, Mrs. McDonald, of Kirkfield, and fur- nished and offered a sum of money to the said Mrs. Mc- Donald to use in corrupt practices. It is shown that McDougall was canvassing one John McDonald in favor of respondent — not very successfully, for he said he left him quite undecided as to whether he would vote or no. They two were outside the house, and McDougall went in to take leave. Mrs. McRae, a widowed sister of John McDonald's, was there. McDougall spoke of her as an old friend of his, and it might be inferred that his acquaintance with her preceded her marriage. He said she was in reduced circumstances. He put some money— he thought $8 — in her hand, but she was un- willing to take it. She said nothing, but did not take it. 1875.] NORTH VICTORIA. 263 McDougall swore " This was not the first money I had given her. I swear I acted in this from personal feelings, and in no way connected with the election." This offer to Mrs. McRae was the only offer of money he made to any one while he was out there. He did also live in that part of the country. He was the only witness who spoke to this part of the charge, and he strenuously denied its truth, and I believe him. It escaped notice at the trial that the charge had reference to a Mrs. McDonald, and the evidence to Mrs. McRae. I find in favor of the respondent on this part of the charge. There is a further charge that McDougall, as agent for the respondent, which I have already found him to be, bribed Duncan Monro by payment of money. To. sustain this charge McDougall and Monro were both examined. McDougall swore that he hired Monro to take him with his team to the Victoria Road, to drive him round. He went to arrange for teams to carry in voters. McKay arranged to take his teams out. He made no bargain with him. Nothing was said to him that he was to be paid. " I made no bargain with any one to hire their teams. I gave them to understand I would not promise or pay for them." Monro swears, " I was out wijih a horse and cutter at Mr. McDougall's request on Saturday, and at his request on the following Monday, the polling day. I was paid upon Saturday night. Noth- ing was then said about the Monday. I took a man (one Sickles) to the polls on Monday. Mr. McDougall asked me to drive a man to the polling place, and said nothing about paying or not paying. If I was offered pay I would take it. When I returned McDougall was gone." Now the only money paid by McDougall to Monro is stated to be $2.50, and that is shown to be for the hiring on Saturday by the testimony of both witnesses, and to have been paid on Saturday night. This appears to me to disprove the charge of bribery; there is no particular charging the hiring or paying for the conveying of 'Sickles 264 PROVINCIAL ELECTIONS. [A.D. to the polls on Monday, though there is an unsupported charge of bribing one Sickles by the payment of money. It is enough to say that this other charge (if advanced) would not have been proved by the foregoing evidence. The remaining charge relied upon by the petitioner's counsel was a charge of treating by McDougall, as agent for respondent, upon the polling day. The only witness to prove it is McDougall himself. He stated that he was at Simpson's hotel, at Cohoconk, about two or three o'clock p.m. on the polling day It was about five or six miles from any polling place. He was travelling from Kirkville to Somerville. He treated about six persons in the bar-room. Some of them were strangers to him. His teamster was named Edwards. He (McDougall) did not know he was a voter. The bar-room was open. They only stopped at Coboconk to water the horses. McDougall said he did not know what the parties whom he treated drank ; that he was not in the habit of drinking anything stronger than beer or wine. The respondent's counsel objected to the admissibility of this evidence. I have already expressed my very clear opinion, which I will repeat, tha,t McDougall's agency was sufiiciently established by his own evidence, which proves also that he treated five or six persons at Simpson's hotel on the polling day and during polling hours. The question as to what the parties drank was raised, and was answered by the assertion (not denied) that the witness had stated that decanters were put down and people helped themselves. I had not noted this particular expression. In fact, it never occurred to me to doubt what was the nature of this treat in the bar-room of a country tavern. It is my unpleasant duty upon this evidence to find that respondent was guilty of a "corrupt practice" through his agent, Malcolm McDougall, but without the respond- ent's actual knowledge and consent. I come now to the recriminatory charges, of which four are relied upon by the counsel for the respondent. 1875.] NORTH VICTORIA. 265 1. That petitioner, on the 6th January, at Victoria Road Station, provided drink and other entertainment at his own expense for a meeting of electors assembled for the purpose of promoting his election, contrary to the 61st section of the Election Law qf 1868. Hector Campbell proved that he kept an inn at Victoria Road; that shortly before the polling there was an election meeting of some fifty or sixty persons at a stone building; after the meeting a number of them came to Campbell's inn, and drink was given to them by order of Dalglish, who said petitioner would pay for it. During the same afternoon Dalglish himself returned to the inn, and paid the charge, which amounted to $2. The petitioner did not speak to Campbell on this matter at all. Richard Killingsworth swore that he was present when the petitioner asked Camp- bell if there was anything in the charge relating to treating at his tavern on his (petitioner's) behalf, and Campbell said there was no treating, and that he did not see peti- tioner there. The petitioner, the last witness called by respondent, swore that the meeting at which he was nominated was held at a store-room a short distance from the hotel. He expressed a doubt as to whether Dalglish was there, and said positively that he did not make or authorize any payment to Peters (who also kept a tavern close by) or to Campbell for anything furnished that day. He said he read the charge respecting the treat at Camp- bell's to him (C), who said there was no such thing — that petitioner was not at his house at all. It was stated, and not denied, that Dalglish was the petitioner's brother-in-law. The petitioner proves that Dalglish accompanied him (driving in the sleigh) on some of his electioneering tours ; but of any acts of his — ex- cepting what Campbell swore to — I find scarcely a trace. Unfortunately, the efforts to serve him with a subpoena on (as I understand) the day this trial began, were not successful. I am not satisfied that his character as agent is proved, and must therefore decide in the petitioner's favor on this charge. 266 PEOVINCIAL ELECTIONS. [a.D. • 2. Next comes Mcllroy's case. The particulars are in these words : " John Merry and Archibald McFayden (McFad- yen), the financial agent of the petitioner, on the evening of the 15th January, 1875, before the day of polling, - bribed Francis Mcllroy, an elector, to induce him to vote for the petitioner, by the giving up of an agreement for the cutting of timber upon Lot No. 2, in the 5th con- cession of the township of Garden, to the said Francis Mcllroy." It was proved that Mcllroy had by some agreement in writing, which was not produced, sold the timber growing upon the lot named, and that under it all the pine timber and basswood had been cut down by the petitioner's workmen. Mcllroy insisted that he had sold the pine timber only, and that the word " pine " should have been inserted before " timber." This agreement was made upwards of two years before the election, and the pine \ and bass had all been cut, and under it, as Mcllroy stated, the petitioner claimed to have bought all the timber. Two days before a meeting of the petitioner's friends at Kirk- yille. Merry and Gibson, two of his supporters, asked Mcllroy who he intended to vote for, and he said he did not know that he should vote at all, and told them of the diiFerence between him and the petitioner, and Merry said he thought petitioner and witness could settle it. After the Kirkville meeting was over, McFadyen, who was one of petitioner's clerks, told Mcllroy to wait and settle this matter. Mcllroy said if petitioner would give up his claim to the rest of the timber, "we would call it square, and have no hard feelings about the matter." Mcllroy had previously told Merry and Gibson that if petitioner would give up all claim to the timber, except what he had then cut, he (Mcllroy) would not go against him ; and either then or soon after Mcllroy got from McFadyen a paper in the following terms : " Balsover, January 13th, 1875. This is to certify that I do not claim any timber of Mr. McEllroy, excepting the pine timber and the bass- wood that is already cut on west half Lot 5, on the 5th 1875.] NOBTH VICTOEIA. 267 con. in the township of Garden, county of Victoria." (Sd.) " Duncan McRae, per A. McFadyen, witness." John Merry testified that he desired to help petitioner, and went to see Mcllroy about his vote. He knew nothing then of the difficulty about the timber. Mcllroy told him he generally supported petitioner. Merry saw petitioner, and told him or McFadyen what Mcllroy had said to him. He afterwards heard that there had been a settlement. The petitioner in his evidence said as to this matter : " 1 had a transaction with Mcllroy about timber. I told him I had no claim except for the pine and basswood. Merry asked me on the night of the meeting if I. was going to claim any more of Mcllroy's timber, and I said I did not intend to cut any more of it. I do not remember that McFadyen or Gibson said anything about it. I know nothing about the paper mentioned by Mcllroy. I never heard of it until last Monday, when I got the particulars. McFadyen is not an elector." I think that the surrender of a right to cut timber on the lands of another who desires to obtain such surrender is clearly within the meaning of the term " valuable con- sideration." It was obviously so regarded by Mcllroy, and was so asked for and accepted by him. The evidence is conclusive as to McFadyen having delivered the assur- ance that Mcllroy would not in that event oppose the petitioner, and as to his having been an agent of the petitioner. I find, therefore, that the petitioner, through his agent, Archibald McFadyen, was guilty of a " corrupt practice," but without the petitioner's actual knowledge and consent. After the foregoing judgment was given, counsel for the respondent called the learned Judge's attention to a dif- ference of ruling between the treating by Malcolm Mc- Dougall, an agent of the respondent, at Coboconk on poll- ing day, and the selling of liquor on polling day by Wm. Peters, an agent of the petitioner, at Victoria Road. The evidence as to the latter is given on p. 255. 268 PROVINCIAL ELECTIONS. [a.D. On the following day (19th August) the learned Judge added the following to his judgment : Draper, C. J. A. — This conclusion appeared to me to render it unnecessary to form an opinion upon the two remaining matters advanced by way of recrimination. It is mainly in the interest of electors that this tu quoque accusation is permitted, in order to prevent a successful petitioner from obtaining the vacated seat if he also has violated any provision of the Election Law. However, in consequence of a reference made by one of the learned counsel to an apparent inconsistency be- tween my ruling in the Coboconk treating case and the keeping open on polling day of his tavern by William Peters, I enlarged the time for pronouncing my final conclusion until to-day. I must say it struck me that it would be an extreme case if I should find myself com- pelled to hold that Peters (though an election agent of petitioner), being himself the tavern-keeper and selling liquor as usual in the course of, his business, could there- by make the petitioner's return, if he had been elected, void, though no connection between the election or the petitioner and the keeping the tavern open on the polling day was shown to exist. Moreover, I noticed that Peters swore (as if justifying his acts) that there was no polling place within three miles of his house. I have been told that there is an erroneous idea abroad that the law does not render necessary the closing a tavern at that distance from the polling place ; and McDougall's evidence seems to point to a similar mistake. Having arrived at a result adverse to the petitioner upon Mcllroy's case, I can see no object in going into Peters' case, and my refusal to receive evidence to support it could be no detriment or hindrance to the respondent. On a broad view of the case, I am of opinion that the evidence in the Coboconk case was properly received, though it may be doubtful. Had an application been made to me in regular form to add a particular embracing 1875.] CAEDWELL. 269 it, I think that (always on reasonable conditions) I could not have refused ; and if so — the evidence being; conclu- sive to prove it, and given by an apparently very trust- worthy witness — the error resolves itself into one of form. I adhere to my conclusion on the charge avoiding the eilection, and also to that upon Mcllroy's case as against the petitioner. It is no prejudice to his case that the other charges are not pronounced upon. (9 Journal Legis. Assem., 1875-6, p. 13.) CARD WELL. Before Chief Justice Draper. Brampton, 7th and 13th September, 1875. Francis O'Callaghan, Petitioner, v. John Flesher, Respondent. Acta of agency — Hostility to opposing candidate — Corrupt practices. One S., who desired nomination as a candidate by a Bjeform Convention, was not nominated, and thereupon, from hostility to the convention and its nominee, opposed the candidate of the convention, which there- by had the effect of supporting the respondent. At the close of the poll, the respondent publicly thanked S. for being instrumental m bringing about his election. S. owned a shop and tavem, but the license for the latter was in his clerk's name ; and during the polling hours on polling day spirituous liquors were sold and given in the shop and tavern. Held, that what was done by S. at the election was in pursuance of a hostile feeling against the convention and its candidate, arid did not constitute him an agent of the respondent. The petition contained the usual charges of corrupt practices. Mr. Befhune for petitioner. Mr. J. Hillyard Cameron, Q.C., for respondent. The evidence affecting the election is set out in the judgment. Draper, C. J. A. — The only point of importance in this case is, whether the facts in evidence establish that Peter Small, a merchant and hotel keeper within this electoral riding, was an agent of the respondent. That his hotel 270 PROVINCIAL ELECTIONS. [A.D. was open on the polling day, and during polling hours, and that spirituous liquors and beer were freely given and sold therein, were not at all denied. The circumstances are peculiar. A convention of the electors of the riding, who belonged to the Reform party, was called together to nominate their candidate for this election. Certain delegates had been chosen or otherwise appointed to attend this convention. Peter Small had fully anticipated that he would be the nominee. He was a well-known member of the Reform party, and was a Roman Catholic. He kept a merchant's store and a hotel in the village of Ballycroy, in the township of Adjala, and had large dealings and connec- tions throughout the riding. The convention, however, disappointed his expectations and nominated Mr. Bowles, who became the opponent of the Conservative candidate, the now respondent. In his evidence Mr. Small stated, in regard to Bowles and his nomination by the convention, that " people voted for him (in the convention) who had no right to vote. I showed up the convention ; I asked people to vote against Bowles. I made it understood I wanted to defeat the nomination of the convention. I considered that Bowles had personally broken faith with me. Though I had a con- versation with the respondent after Bowles' nomination, I never spoke to him at all about the election. By opposing Bowles I was in effect supporting respondent. A large number of my friends are Roman Catholics. I suppose there are seven or eight hundred Roman Catholics in the riding. I remember telling the respondent to see young Walsh and he would give him some information." On his cross-examination he said, " It made no difference to me who was the nominee of the convention. People were allowed to vote in the convention who had no votes in the riding," and he mentioned the names of several such persons. " That was the ground of my acting pubhcly. I was never answered except by one Jones. I had nothing 1875.] CARDWELL. 271 to do with the respondent in trying to procure his election either for his party's sake or his own." Walsh was a clerk and employee of Small in the store and business, and occasionally in the bar of the hotel. He was also the telegraph operator, the telegraph office being in the store, which, with the hotel (all forming one build- ing), was burnt down in April last. The hotel license was taken out in Walsh's name. Spirituous liquors were sold in the shop as well as in the hotel. Walsh said he was a Conservative, and was from the first favorable to the respondent, and spoke to others in his favor and to get votes for him, and wrote one or two letters with the same object. He spoke to the respondent about the election, and was his scrutineering agent at the poll at Ballycroy under an appointment signed by respondent, who left three appointments in blank, signed by him, with Walsh, to be used if necessary, so that the respondent might always have an agent at the poll; but they were not used, as he (Walsh) was not absent from the poll more than five minutes. The poll was taken in a separate building very near the shop and hotel. He was at the meeting at Tottenham, in the township of Tecumseth. Small took him there, and Small made a speech to which a Mr. Jones replied. Small was showing up the convention, and accused Jones of treachery. Small was, as Walsh under- stood, desirous of defeating Bowles. Walsh told respond- ent of the dissatisfaction of the Koman Catholics at the unfair exclusion of Small, and that he thought this dis- satisfaction improved respondent's prospects. After the result of the polling was known, and late in the evening of polling day, the respondent returned thanks for his election, and said he was thankful to Small for being instrumental in bringing about his election, which remark may have been made in irony, as Small had supported Bowles at a previous election. On cross-examination he (Walsh) added, " I think Small expected the nomination, and I under- stood he was throw^n out because he was a Eoman Catholic. There was a breach of faith among the mem- 272 PROVINCIAL ELECTIONS. [a.D. bers o£ the Reform convention; there was a change between the open and the secret voting, and Mr. Small's feeling arose from this." I have set out this evidence with some particularity, because upon it is founded an argument that it maintains the assertion that Small ought to be regarded as an agent for the respondent as to this election ; that the respondent must consequently be bound by his acts, and that if he is proved to have been guilty of corrupt practices, they will attach upon the respondent as the acts of his agent, and will avoid the election. I will take the question upon the assumption that Small was guilty of corrupt practices against the election laws — a fact in reality not disputed. Small by his own evidence, as well as by circumstances appearing which indirectly but strongly lead to the same result, was a well-known member of the Reform party ; nothing transpired during the whole trial to put this in doubt, and not an expression was drawn from him in his examination to raise a doubt that his political opinions were unchanged. He admitted that he had a conversation with the respondent, but not about the election ; that he had told him to see young Walsh, who would give him some information. The respondent did see Walsh, who informed him of the dissatisfaction of some of the Roman Catholics at the treatment of Small by the convention, and that, in Walsh's opinion, this was favorable to the respond- ent's success ; but however well founded that young man's opinion, I cannot discover in it any f roof that Small had become the respondent's agent for the election, or thai respondent had so considered him. Mr. Small was dis- appointed in an object which he desired and expected to have obtained ; he was irritated because (whether rightly or not) he thought there had been treachery in the con- duct of some on whom he had relied as friends, and that unfair means had been resorted to, by which one of those friends accepted and occupied the very position which he coveted ; and he resented it not merely in words, but in the acts which he stated in evidence ; and it is to be 1875.] CARDWELL. 273 remarked that not another witness but himself proves any act on which reliance has been placed to prove his agency. It is perfectly true that everything he did under the influence of these feelings which was prejudicial to the nominee of the convention was favorable to the respond- ent ; that every obstruction placed in the path of the one was pro tanto a clearing of the way for the other ; but, for the purposes of this question, I must regard the motive which brought about the acts relied upon. I think I have the key to this whole conduct, and that I have shown what dominating influence governed him. All that he ■ is proved to have done is accounted for by his hostility towards the convention and their nominee, while there is r.eally no direct evidence of his having done anything which furnishes the ordinary proof from which agency is inferred. He did not canvass for the respondent either with the respondent or alone. He attended no meetings called by the respondent — for the meeting at Tottenham, if not a Reform -meeting, was a mixed meeting, and his speech at it was hostile to the convention and its nominee on account of their conduct towards him. He does not appear to have solicited one vote in favor of the respondent or to have taken one vote for him to the poll ; and, while fighting on purely personal grounds against the Reform candidate, he does not change his opinions as a Reformer. I freely grant that his conduct from a party stand-point was absurd ; but he was an angry man, listening to the promptings of disappointed and exciting feelings of wounded self-esteem; but I can find no proof in it of his agency in favor of the respondent ; nor can I fasten upon him a character which I feel convinced he never meant to assume. I can quite understand Small's resolve to oppose Bowles, and to do all that he could to defeat him, although in so doing he was helping the opposite party, without desiring the success of Bowles' opponent on any other ground than hostility to Bowles, and disregarding all other consequences of his gratifying that hostility ; but I cannot convert such a course into an agency which is to affect a party who 274 PROVINCIAL ELECTIONS. [a.D: is not in any way connected with the difference between Small and Bowles, or hold the respondent to be affected by anything done by Small in pursuance of a vindictive feeling against another, to which the respondent was no party. I must therefore dismiss the petition ; and can find no reason which will justify me in refusing to give the respondent his costs. (9 Journal Legis. Assem., 1875-6, p. 23.) WEST PETERBORO. Before Chief Justice Draper. Peterboro, 30th and 31st July ; Snd and 18th August, 1875. Before the Court of Appeal. Toronto, 17th September, 1875. William Hepburn Scott, Pditioner, v. George Albeetus Cox, Respondent. Bribery by offer of employmeTit — Oontradictory evidence — Treating during polling hours — Fraudulent device, enabling an unqualified person to vote — Corrupt practice — Special case — Costs. Evidence of admissions made by an agent after his agency has expired is inadmissible. Where, in evidence of offers of bribery, an assertion on one side is met by a contradiction on the other, the uncorroborated assertion is not suffi- cient to sustain the charge. A candidate's appeal to his business, or to his employment of capital in promoting the prosperity of a constituency, if honestly made, is not prohibited by law. Qtuere, Whether the word ' ' employment " used in the bribery clauses of the Act refers to an indefinite hiring, or would include a mere casual hiring. One T., who was on the roll as an elector, and had sold his property in June, 1874, before the final revision of the Assessment Roll by the County Judge, was, with the knowledge of the respondent — who was aware a doubt existed as to T.'s right to vote — given an appointment to act as scrutineer at a distant polling place, and also a certificate from the Returning Officer under 38 Vic, c. 3, s. 28, to enable T. to vote at the place where he was to act as such scrutineer, at which place T. voted without taking the voter's oath, and returned without entering upon the duties of scrutineer. On a question of law reserved on the above facts for the Court of Appeal, Meld, that the act complained of was not a corrupt practice under the statute ; but under the circumstances, the Court gave the respondent no costs in appeal. 1875.] WEST PETERBORO. 275 The petition contained the usual charges of corrupt practices. Mr. Rector Cameron, Q.C., and Mr. H. H. Smith for petitioner. Mr. Bethune and Mr. B. W. Bumble for respondent. During the examination of a witness respecting his account for Hquors supplied to voters on polling day, which he presented to one Peter Hamilton, an agent of the respondent, on the day after the election, Mr.' Cameron asked what Hamilton said to the witness when he presented the account to him the day after the election. Draper, C. J. A. — I refuse to allow the question. Ham- ilton's agency expired with the election. Even if he asserted some fact of importance bearing on the issue, his statement of that fact would not be evidence to charge the respondent. As to mere admissions, there can be no doubt ; as to matters of fact, Hamilton may be called. The evidence on the charges of corrupt practices showed that two persons, Cardinelle and La Plante, who had can- vassed among the French voters, had treated several per- sons in taverns during polling hours on polling day. The evidence on the other charges is set out in the judgment. Draper, C. J. A. — At the close of the petitioner's case, Mr. Bethune admitted that the agency of Cardinelle and . La Plante was proved, and that he could not deny that the evidence established that they, being such agents, had violated the 66th section of 32 Vic, c. 21, and conse- quently that the respondent could not retain the seat. He contended, however, that whatever was done by these agents contrary to law was done contrary to his wishes, and without his knowledge and consent. If the petitioner, however, persisted in the personal charges, he called upon the counsel on the other side to state on which of them he relied. 19 276 PROVINCIAL ELECTIONS. [a.D Mr. Cameron stated that he relied on the second parti- cular, charging that respondent oifered to one John Drake, a voter, permanent employment during the summer, if he would vote for him. Also on the third particular, charging that respondent offered to one Cole Barrett employment if he would vote for him. Also on the fourth particular, charging that respondent offered to one John 0. Wood employment during the coming summer if he would use his influence for re- spondent. Also on the twelfth particular, charging that respondent offered and agreed to pay the travelling expenses of one Jeremiah Daley, of the Town of Peterhoro, from that town to the place where the said Daley was then in- tending to work, if the said Daley would vote for re- spondent, and did pay such his expenses. Also on the thirteenth particular, charging a fraudulent device in proctiring from the Returning Officer a certificate that one Frederick Taylor was entitled to vote in the second ward of the Town of Peterboro, his name appearing on the voters' list, though he had parted with the pro- perty in respect of which his name so appeared ; and in further pursuance of the said device, in giving to the said Taylor a colorable appointment to act as agent for the respondent, on the polling day, at one of the poll- ing places for the township of North Monaghan, for the purpose of enabling the said Taylor to vote, without having the voter's oath tendered to him, whereas it was not intended that the said Taylor should, nor did he, act as agent for respondent at the said polling place in North Monaghan. I need not take up time in discussing the evidence of Drake. His statement is that when the respondent asked him for his support, he replied he had not made up his mind, and added : " I suppose if I am idle, you will give me worji," and that respondent said he would give him work for the summer. The conversation was talked of, 1875.] WEST PETERBORO. 277 and four or five weeks afterwards lie was applied to to state what he could prove, and he put his mark to a statement drawn up from his answer to this inquiry. He stated on the trial that he hoped, ais times were dull, to secure work for the ensuing summer, and that he told his then employer (Mr. Clark), a few minutes after respondent left, that the respondent had asked him for his vote, and had offered him work for next summer, which is stronger than his present statement. The respondent swore that when he asked Drake for his vote, that he promised so readily that he doubted if Drake knew him — that Drake did not even ask him " If I'm idle," etc., and that not a word passed between them on the subject of respondent's giving him work. Several witnesses were examined with reference to Drake's character for truthfulness. In answer to their unfavorable statements, a number of persons were cajled who amply sustained him. But I am quite clear that in the face of the respondent's positive denial, I cannot take Drake's uncorroborated assertion as suffi- cient to sustain this personal charge. Barrett's evidence is also relied on' to sustain another ■ personal charge. He swore that respondent asked him for his vote, and he replied that he had promised Scott. Respondent said that Scott did not give any work. He heard respondent, at a public meeting at the Town Hall, say he had lots of work on hand, and plenty of money to spend on it, and he would employ workmen as soon as the election was over. His statement of a promise of the re- spondent to give him work in return for the exercise of his influence at the election is positively denied ^by the respondent. I cannot on such a state of evidence find that this personal charge is proved. I may remark also that I am not disposed to treat what a candidate may say in public, to the assembled electors, before or during an election contest, as furnishing evidence of offers or pro- mises to corrupt individuals. An appeal to his business as being a benefit generally to the community, or to certain classes of it, or to the employment of his capital 278 PROVINCIAL ELECTIONS. [a.D. in a manner promoting the prosperity of the constituency, if honestly and truly made, is no more prohibited by the law than an appeal to distinguished public services would be, when a man is fortunate enough to have them to appeal to. It is against the personal corruption of indi- viduals that the law has been provided, and that law will be the more respected if it be administered in a spirit of wise moderation. Then comes the charge which rests upon the evidence of John C. Wood, and which may be stated in nearly his own words. Respondent " asked for my vote ; I told him I had none. He told me, if you will give me your in- fluence, I will give you the painting of what work I am carrying on ; you can do a good deal among the English people. I told him I did not think much of his promises." The respondent meets this thus : " I did not say to him that if he would use his influence for me, I would give him work." In commenting on this case the respondent's counsel suggested that what Wood swore to amounted to no more than an endeavor by respondent to get his (Wood's) services to canvass for him, for which he was willing to give him a consideration. It may be that the words are open to such an interpretation. I do not, how- ever, rest upon it ; I am not free from doubt whether the word " employment," as used in the statute, refers to the mere indefinite hiring of a mechanic or a laborer. It is connected with the words " office " and " place," and if the maxim noscif.ur a sociis be applied to its construction, it could scarcely include a casual hiring. The present case, however, does not render it necessary to decide that point. There is here an assertion on one side mpt by a contra- diction upon the other. The accuser admitted an un- friendly feeling to the respondent, and his own reputation for veracity was somewhat impeached. I treat this charge as not proven. Daley's case was given up by the counsel for the peti- tioner, and Taylor's case is the last to be disposed of 1H75.] WEST PETERBORO. 279 Frederick Taylor was put upon the roll as an elector, being owner of Lot No. 8, east of Water Street, town of Peterboro, and in the West Eiding. He had sold this pro- perty in June, 1874, having removed to Lindsay in Oct., 1873. He had also a vote in the East Riding. He was asked to vote in that riding, and went to Peterboro on Saturday, 16th January. He was at respondent's house about four hours, but, he says, had no conversation with him at any time respecting his voting. But he talked with Fairbairn, a clerk of respondent, who insisted his vote was good ; and the subject was discussed in respond- ent's committee room between Fairbairn, Taylor and Lacy, another of respondent's clerks. Taylor saw the voter's oath in the committee-room. That same night Lacy got from the Returning Officer a certificate under the 28th section of 38th Victoria, under which Taylor could vote at the election, at the polling place where he was stationed during the polling day, and Fairbairn handed to Taylor this certificate, together with an appointment in writing, signed by the respondent, authorizing Taylor to act as his agent or scrutineer at the polling place in North Mon- aghan. Taylor said that he thought these documents were given to him to enable him to vote without taking the voter's oath — it was said it was not likely he would be sworn there. He went to North Monaghan with one Robinson, who was also an agent for respondent at that polling place. They arrived at the poll before nine a.m. Taylor tendered his vote as early as he could, and the ' voter's oath was not tendered to him. He returned to Peterboro without even entering upon the duties of re- spondent's agent at North Monaghan, and voted in the East Riding. On the examination of the respondent upon a Judge's order, he said, " I signed my appointments of agents in blank, and they were filled in by the committee." And further, "I understood on the polling day that Taylor went out to North Monaghan and voted there. I may have heard, the Saturday before the polling day, that 280 PROVINCIAL ELECTIONS. [a.D. Taylor was to be sent out there. I think it is likely that I did hear it then. I understood that he was going. out there to act as agent, and that he would vote there. I think he came down from Lindsay on the Friday or Saturday. Very likely I understood from himself that he was going out to North Mpnaghan. He went with Robinson, who was my agent at North Monaghan. I understood that there was a question whether his vote was good or not. I knew that he had sold his property in Peterboro. It is possible that he may have been sent to North Monaghan as my agent, for the purpose of getting his vote in. I was under the impression that he was sent there for that purpose. I didn't suppose he was going to stay there all day to act as my agent." Robert Fairbairn, however, says that he asked Taylor to go out as agent for respondent to North Monaghan ; that he really thought Taylor had a vote ; and that he asked Taylor in good faith to go as scrutineer, and not from any thought of getting a vote — that he did not know he had sold his property — and that he knew Taylor had no know- ledge of the voters in North Monaghan. It was admitted that there were appeals to the County Judge against the voters' lists in each of the wards in the town of Peterboro for the year 1874, and that the lists which were used at the polls were the lists of 1874. Upon the evidence given before me, I find that prior to June, 1874, Taylor owned property which entitled him to vote in the "West Riding of Peterboro, and that he parted with it in June, 1874, but that his name was inserted on the roll for that year, and it is not proved that it was taken off on any revision of appeal. I find that Taylor was doubtful of his right to vote, and whether he could properly take the voter's oath if called upon to do so. I find that it was agreed that Taylor should be nomi- nated as respondent's agent at the polling place at North Monaghan, in the West Riding of the county of Peter- boro, for the day of polling, and that a certificate should 1875.] WEST PETERBORO. 281 be obtained from the Returning Officer under the 38th Vic, chap. 3, sec. 28, to enable Taylor to vote at the polling station at North Monaghan. I find that such certificate was obtained from the Re- turning Officer by one Lacy, a clerk of the respondent. I find that the respondent had signed appointments in blank, and placed them at the disposal of his committee for the election, in order that the blanks should be filled with the names of such persons as should be selected to act as agents at the several polling places. I find that Robert Fairbaim, who was a clerk of the respondent, got one of such appointments so signed by the respondent, in which the name of Taylor was inserted, though it was not proved by whom. I find that Fairbairn delivered the said certificate and the said appointment to Taylor, and that Taylor proceeded to the polling place at North Monaghan and voted soon after the poll was opened, without taking or having ten- dered to him the voter's oath. I find that immediately after having voted, Taylor left North Monaghan and returned to Peterboro, without having entered upon the duties of agent for respondent at the polling place at North Monaghan. I find that respondent knew that Taylor ,was going to North Monaghan to act as agent and to vote there. I find that respondent was aware that a doubt existed as to whether Taylor had a right to vote, and knew that Taylor had sold the property in Peterboro which was his only qualification to vote at that election. I find that Taylor was sent to North Monaghan in the expectation that his vote would be received without dis- pute, and that he would not be required to take the voter's oath. I find that Taylor's appointment as agent for respondent was merely colorable, and that the respondent did not expect that Taylor would perform the duties of agent at the polling place at North Monaghan. 282 PROVINCIAL ELECTIONS. [a.D. And I reserve for the decision of the Court of Error and Appeal the question of law whether, under these findings, I should hold and report that a corrupt practice has been committed by and with the actual knowledge and consent of the respondent, or by his agent or agents without his actual knowledge and consent ; and I reserve the final determination of this petition, and the certifying thereof to the Clerk of the Legislative Assembly of Ontario, until the said Court of Error and Appeal have expressed and given their opinion and determination upon the question reserved, or have made some other decision or order in the premises. The question of law reserved by the learned Chief Justice was argued before the Court of Appeal on the 17th September. The Court (Draper, C. J. A., Strong, Burton, and Patter- son, J J. A.) held that the act complained of was not a corrupt practice within the statute ; but under the circum- stances, gave the respondent no costs. The Chief Justice thereupon certified that the election was void, and reported that Cardinelle and La Plants were proven at the trial to have been guilty of corrupt practices. (9 Journal Legis. Assem., 1875-6, p. 17.) 1875.] HALTON. 2, so far as he was concerned, with the matter, and I think the proper conclusion from the evi- dence is that it hadinot. I have thought it well to discuss this question, as it was a prominent matter in the investigation before me, but I at least doubt whether O'Neil was an agent for whose acts the respondent was responsible. Two direct corrupt acts are charged to have been com- mitted by William Stevenson, an agent, it is alleged, of the respondent, consisting in the offer to one George Shibley of a sheepskin if he would vote for the respondent, and in the offer to one William Robson also of a sheepskin if he would stay at home on election day. Shibley and Rob- son are not called upon this charge, but William Stevenson only. The defence is that these offers, which were both made on the same day, were never seriously made, and that it was well understood by both Shibley and Robson that they were made in mere jest. Stevenson, in his evidence, says that Shibley is a man of wealth and a magistrate, and as I understand his evidence, the offer came from him that he would vote for the respondent if Stevenson would give him a sheepskin. The witness describes Robson as a storekeeper living in Carlisle. He swears that he looked upon these offers as in jest, and felt sure that they were so regarded by Shibley and Robson. 380 PROVINCIAL ELECTIONS. [A.D. A statement that an offer to bribe was made in jest should be received with great suspicion. A briber may , make an offer which he intends should be taken seriously, and then, in the event of its not being accepted, shelter himself afterwards with the plea that it was only in jest ; but looking at the position of Shibley and Robson, and the nature of the thing offered and its value — a dollar or less — it is probable that Stevenson speaks the truth when he says that it was but a jest. The case, however, is divested of all difficulty by the circumstance that Steven- son was not at the time an agent of the respondent. The matter occurred in the autumn before the snow fell — the witness thinks in October ; and it was long afterwards, and, as the witness thinks, after the public nomination, which was on the 11th of January, that he received a communication from Gilchrist, financial agent of the re- spondent, asking him to canvass a school section. There was nothing shown to constitute him an agent before that. Another point taken by the petitioner is this, that there were meetings of electors within the meaning of section 61, at which there was treating within the meaning of that section, and that the same being with the actual know- ledge and consent of the respondent, he thereby loses his seat, and is disqualified. Mr. Kerr's contention upon this point is, that it is immaterial whether the treating was by the candidate himself or by an agent, or by a stranger, and that the motive and intent are, under the section as amended, immaterial ; that all that is necessary to bring the case within the section is, that the treating is to a meeting of electors, such as is described in this sec- tion, and that it is with the actual knowledge or consent — which Mr. Kerr reads, knowledge and consent — of the candidate. I incline to agree with this interpretation of the section, and in the Dundas case (ante p. 205) I acted upon a like construction then put upon it by myself, with this differ- ence, that in that case the treating was by an agent of the candidate, not by a stranger. But I thought in the South 1875.] NORTH MIDDLESEX. 381 Essex case {ante p. 235), that a corrupt practice participated in by an agent, being by his participation a party thereto, would avoid the election. This was under the second pro- vision of section 66 ; and this construction has now, I understand, been approved by the Court of Appeal. But my difficulty in this case is upon the question whether the treatings in question were to meetings of the electors within the meaning of the section. I take the meeting on nomination day and at Elson's as examples. I take the meeting held on that occasion (the nomination) to have been a meeting within the section. The meeting at Elson's, while of a different character, was still, in my opinion, a meeting of electors, assembled for the purpose of promot- ing the election ; and if the treating had been, in any proper reasonable sense, a treating to electors so assembled, I should hold it to be a corrupt act. But there are these material circumstances to be taken into account : North Middlesex is a rural constituency ; the electors attending these meetings were for the most part from a distance ; their horses and conveyances would be put up in the stables and driving sheds of the taverns of the place ; the meetings were in January, and the weather is described to have been very cold. Then there is the custom of the country — not to be commended, but still to be taken into account — to take drink in the bar-rooms of taverns, and to do so in the shape of treating some or all of those assembled with them in the room, " the crowd," as it is so often called. Now, what was done upon the occasion in question was in substance this : After the business for which the electors had assembled was over, they left the building in which the meeting had been held, and went, some to one tavern, some to another ; generally, as I infer, to those at which their vehicles were put up, and before leaving for home took drink in the bar-rooms in the usual mode — that of treating one another. I cannot think that doing this is in any proper or reasonable sense giving drink or other entertainment to a meeting of electors assembled for the purpose of promoting an election. It 382 PBOVINCIAt ELECTIONS. [A.D. is indeed doubtful whether there was treating on any of those occasions by any agent of the respondent ; and it now appears that there was not any treating by the re- spondent himself, but the respondent himself partook of the treat on one at least of these occasions in the bar of a tavern. I am not in the least disposed to sanction any evasion of the law, or to insist upon too rigid a constniction of the provisions of the section. It would indeed be a rare case, if a possible one, that treating should be given liter- ally to a meeting of electors. It was not so in the Dundas case {ante p. 205), in which I applied the Act ; but what was done in this case is not in my judgment within the spirit and meaning of the Act. To apply it to what was done in this case would be in my opinion straining_the provisions of the sections beyond their legitimate meaning and intent. Upon another branch of the case I have entertained considerable doubt. It has been in regard to treating by the respondent at various taverns in the course of his canvass, which occupied about three weeks before the poll- ing day. The respondent is a farmer, and has for the last sixteen years followed the business of a drover. He says that it is the practice of drovers to go to taverns as the best places for meeting with farmers and hearing of cattle, and that he has always been in the habit of treating at taverns in the course of his business, and this is confirmed by the evidence of other witnesses. He states that when he became a candidate he canvassed personally through the Eiding, and went to the taverns as good places to meet with the electors ; that on these occasions he sometimes treated ; sometimes friends who were with him treated ; and the treating was sometimes by others who were not friends ; and the treating was general to all who might happen to be present. As to its extent, he says it was much less than was his habit in the course of his business, not more he says than one-fifth as much ; he denies em- phatically that he treated with any view of infiuencing 1875.] NORTH MIDDLESEX. 383 voters ; that he made no distinction as to whom he treated ; that he had taken legal advice ; that he meant to obey the law, and thought that in what he did he committed no infraction of the law. As to which last, I will merely observe that if what he did was really an infraction of the law, his being advised and his entertaining the belief that it was not so, would be no excuse in the eye of the law. The treating upon these occasions stands upon a different footing from meat, drink, &c., furnished to a meeting of electors, to which I have already adverted. The law upon this branch of the case differs from the law prevailing in England in this, that we have not in this Province any enactment equivalent to section four of the Corrupt Practices Prevention Act. The Imperial Act of 1854 makes corrupt treating a statutable offence ; treat- ing therefore — not to a meeting of electors — can only be reached by the common law, and must be of such a character as to amount to bribery. It is not contended by Mr. Kerr that the case comes within the old Treating Act, 7 William III., c. 4, which forbids treating within certain times specified, " in order to be elected or for being elected." I do not know whether it has been decided that the Act is in force in Canada, but it appears, as interpreted in Hughes v. Marshall (2 C. & J. 118), to be in affirmance of the common law, inasmuch as treating " in order to be elected " is only a species of bribery. The same may be' said, I think, of the Act of 1854, for to bring a case within that Act, the treating must be with a corrupt intent, i.e., to influence electors to give their votes to the person treating them. My doubt has been whether the treating by the defend- ant in the course of his canvass, as described by himself, and to which I have referred, does not come within the definition of corrupt treating given by Mr. Justice Black- bum in the Wallingford case (1 O'M. & H. 59), that " when- ever a candidate is, either by himself or by his agents, in any way accessory to providing meat, drink or entertain- ment for the purpose of being elected, with an intention 384 PROVINCIAL ELECTIONS. [a.D. to produce an effect upon the election, that amounts to corrupt treating. Whenever also the intention is by such means to gain popularity and thereby to affect the election ; or if it be that persons are afraid that, if they do not pro- vide entertainment and drink to secure the strong interest of the publicans, and of the persons who like drink when- ever they can get it for nothing, they will become un- popular, and they therefore provide it in order to affect the election ; when there is an intention in the mind either of the candidate or his agent to produce that effect, then I think it is corrupt treating." I think that the respondent, in doing what he did, was treading upon dangerous ground ; but before holding that his seat is thereby avoided and himself disqualified, I must be satisfied that what he did was done with a cor- rupt intent, and in judging of this, the general habit of treating in the country, and the respondent's own practice, may properly be considered. In the Kingston case (post; s.c, 11 Can. L. J. 23), the Chief Justice of Ontario observed : " The general practice which prevails here amongst classes of persons, many of whom are voters, of drinking in a friendly way when they meet, would require strong evi- dence of a very profuse expenditure of money in drinking to induce a Judge to say that it was corruptly done, so as to make it bribery, or come within the meaning of ' treating ' as a corrupt practice at the common law." In the Glengarry case {arite p. 8), Hagarty, C. J., has referred to the language of English Judges upon the question as to what, in their judgment, would amount to corrupt treating. I find the case reported in Mr. Brough's very useful little work, " A Guide to the Law of Elec- tions," at page 21. I quote from the passages given in the judgment of the Chief Justice : " In the Bewdley case (1 O'M. & H. 19), Blackburn, J., says 'corruptly' means ' with the object and intention of doing that which the Legislature plainly means to forbid.' In the Hereford case (Ibid. p. 195) the same Judge says that corrupt treating means ' with a motive or intention by means of it to pro- 1875.] NORTH MIDDLESEX. 385 duce an effect upon the election.' In the Lichfield case (p. 25) Willes, J., says treating is forbidden ' whenever it is resorted to for the purpose of pampering people's appe- tites, and thereby inducing voters either to vote or abstain from voting, otherwise than they would have done if their palates had not been tickled by eating and drinking sup- plied by candidates.' And again, that the treating must be done ' in order to influence voters ' (p. 26). And so in the same reports in the Tamworth case (p. 83)." The Chief Justice also cited the Coventry case (IMd.'p. 106), and the Wallingford case {Ibid. p. 57), in which it was said by Blackburn, J., that " the intention of the Legislature, in construing the word 'corruptly,' was to make it a ques- tion of intention;" also the Bradford case (Ibid. p. 37), where Martin, B., as to the meaning of " corruptly," says : " I am satisfied it means a thing done with an evil mind and intention, and unless there be an evil mind or an evil intention accompanying the act, it is not ' corruptly ' done. ' Corruptly ' means an act done by a man knowing that he is doing what is wrong, and doing it with an evil object. . . . There must be some evil motive in it, and it must be done in order to be elected." Without subscribing to every word contained in the passages quoted, they contain, no doubt, upon the whole a sound exposition of the law. The extent of the treating and the quantity of drink given should also be taken into account. It was said by Willes, J., in the Lichfield case : " It may be doubted whether treating in the sense of ingratiation by mere hospitality was struck at by the common law ;" but he goes on to say in effect that it is now forbidden by the Act of 1854, whenever resorted to with the corrupt intent of influencing voters. In the treating in question there was the reverse of pro- fusion ; there was not more but much less than the usual hospitality practised by the respondent, so that there is really no room for saying that the respondent was actu- ated by the intention of ingratiating himself with the 386 PROVINCIAL ELECTIONS. [a.D. electors by profuse hospitality. I will upon this head quote the language of two learned Judges not quoted in the Glengarry case. In the Wallingford case (1 O'M. & H. 59), Mr. Justice Blackburn considers that the amount of treating is an element of consideration upon the question of intention, and observes, " When we are considering as a matter of fact the evidence to see whether a sign of that intention does exist, we must, as a matter of common sense, see on what scale and to what extent it was done." So Mr. Justice Willes in the Tamworth case (lb. 83), says that it is " obvious that the Legislature did not intend that every bit of bread or sup of drink given to a voter in the course of an election should have the effect of de- feating that election." And the same learned Judge in the Westbury case (lb. 50), took occasion to explain what he had said in a previous case, desiring it not to be sup- posed " that treating by a single glass of beer would not be treating, if it were really given to induce a man to vote or not to vote. All that he had ever said was that ■there was not sufficient to bring his mind to the conclu- sion that the intention existed to influence a man's vote by so small a quantity of liquor." It seems all to come to this, treating is not per se a cor- rupt act ; the intent of the act must be judged of by all the circumstances by which it is attended. If in this case the evidence led me to the conclusion that the respondent did what he did in order to make for himself a reputation for good fellowship and hospitality, and thereby to influ- ence electors to vote for him, I should incline to think it a species of bribery which would avoid the election at common law; but, upon a careful consideration of the evidence, it does not lead me to that conclusion. There was nothing wrong, in the eye of the law, in the respond- ent making his canvass by meeting the electors at taverns, and he does not seem to have abused the occasions of so meeting them by seeking to obtain their votes by pam- pering their appetites for drink or by other undue means. I apprehend that I must be able to see with reasonable 1875.] EAST NORTHUMBERLAND. 387 certainty that he has done this before I can set aside the election. The case made of an attempt by a Dr. Saurs to bribe one Donald McDonald to vote for the respondent by the giving of a glass of liquor, fails upon the evidence ; and the case for avoiding the election by reason of Dr. Saurs treating and partaking of liquor during the hours of poll- ing, fails by the absence of proof that he was an agent of the respondent. I have not found it necessary to discuss the question of agency in this case, as, in my view of it, nothing tarns upon it except in the case of Dr. Saurs, for whose acts I do not find the respondent responsible. There is not, in my opinion, anything in this case to take it out of the general rule that the costs follow the result of the suit. (9 Journal Legis. Assem., 1875-6, p. 23.) EAST NORTHUMBERLAND. Before Mr. Justice Gwynne. CoBOCRG, -JOtli to 23rd September, and 1st October, 1875. Henry S. Casey, Petitioner, v. James Marshall Ferris, Respondent. Agency — Delegates to political association to nominate candidates and promote their return — Bribery — Fraudulent device to influence voters. By the constitution of the Reform Association for the East Riding of Northumberland, each delegate to the convention was actively to promote the election of the candidate appointed by the convention. The respondent had himself been for six years a member of the associa- tion, and was familiar with its objects and constitution. He had also as a delegate acted and canvassed for other candidates in the promotion of their elections, and expected the like assistance from the present members of the Association, and to the perfection of that system as an electioneering agency, the respondent owed his electioB. Held, that the delegates to the association, acting as such in promot- ing the election of the respondent, were his agents, for whose acts he was responsible; and that an act of bribery committed by one K., a delegate to such association, and who canvassed and otherwise acted for the respondent, avoided the election. 26 388 PROVINCIAL ELECTIONS. [A.D. Shortly before polling day the respondent's agents issued a circular, the substance of -which was that they had ascertained upon undoubted authority that W. , an independent candidate, despairing of election himself, was procuring his friends to vote for 0. , the opposition candi- date. W. denied the truth of this report. Held, that this was not a "fraudulent device," within the meaning of sec. 72 of 32 Vic, cap. 21, to interfere with the free exercise of the franchise of voters. The petition contained the usual charges of corrupt practices. Mr. U Alton McCarthy, Q.C., for petitioner. Mr. J. D. Armour, Q.C., for respondent. There were three candidates — Ferris, Webb and Coch- rane. Mr. Ferris was the nominee of the Reform Associa- tion, and was the successful candidate. A night or two before the polling some letters or circulars were sent to diiferent leading men, stating that Mr. Webb, an independ- ent candidate, had despaired of success, and wanted his friends to vote for Mr. Cochrane, the Conservative candi- date. Mr. Webb denied the truth of this report. The main p6ints disposed of at the trial were (1) as to the agency of one Richmond, a delegate to the Reform Association, and an act of bribery said to have been com- mitted by him whereby it was contended the respondent's election would be avoided ; and (2) as to the elfeet of the circular as to Webb's alleged resignation, spoken of above, which it was said was a fraudulent device to influence voters. GwYNNE, J. — The evidence establishes, beyond all doubt in my mind, that it is part of the constitution and organ- ization of the Reform Association in this Riding (whose candidate the respondent was) that the delegates to the con- vention, consisting of ten persons from each township and five from each village municipality, should, so long as they might remain in office — that is, until displaced by other delegates — act in promoting the election of the candidate adopted by the convention, in all respects and in the same manner as persons appointed agents by candidates are in the habit of doing for that purpose : that the candidate 1875.] EAST NORTHUMBERLAND. 389 looked for, expected and demanded such their assistance and agency to carry his election, and that in consequence thereof, and because of the perfection of the organization as a canvassing and general agency to conduct the election, the candidate chosen by the convention appointed no agent of his own, but used those provided by the organiza- tion. The evidence also establishes that the respondent was for six years himself a delegate — that he was well aware of the nature of the organization — that as a delegate he canvassed and acted for other candidates in the promo- tion of their election, and that he expected and demanded like services from all the delegates, to be rendered to him upon his candidature ; and that to the perfection of that system as an electioneering agency the respondent owes his election. The evidence in like manner establishes that Cyrus Richmond was a delegate— that he was a supporter of the respondent in the convention and voted for his can- didature — that, although perhaps not very active at first, he worked for the respondent to promote his election in canvassing for him, arranging for the bringing up of voters, and otherwise as is customary with nominated agents, and that the respondent, as the nominee of the convention, expected and claimed to be entitled to such his support and assistance. Under these circumstances, I must hold that Mr. Rich- mond was a person for whose acts the respondent is respon- sible. It is said that the organization is such, in express terms, that the candidate shall only receive the assistance of the delegates as committee-men on his behalf in all matters that are legal. That is precisely the authority given to all election agents. No man appoints another his agent to do an illegal act ; he appoints him only to do legal acts ; but if, instead of confining himself to such, he does illegal acts amounting to bribery and such like, the candidate is responsible. The first question then to be decided is : whether or not Cyrus Richmond did make to Arthur Lyndon the ofier of 390 PROVINCIAL ELECTIONS. [a.D. a bribe, which it is charged that he did make. [The learned Judge, after discussing at length the evidence on this point, decided that an act of bribery had been com- mitted . by Richmond, and on that ground declared the election void.] As to the other point raised, namely, the issuing of the circular on the Saturday night preceding the polling day, there is no doubt in my mind that all the parties to the issuing of that circular were persons who, equally with Richmond, who was himself one of them, must for the same reason be regarded as the respondent's agents, for whom he must be held responsible. I am, however, of opinion that, even assuming the matters stated in the circular to be false to the knowledge of the parties issuing it, it does not come within the 72nd sec. of the Act of 1868, which enacts that " everybody who shall directly or indirectly, by himself or by any other person on his be- half, by any fraudulent device or contrivance impede, prevent or otherwise interfere with the free exercise of the franchise of any voter, shall be deemed to have committed the offence of undue influence." It is, in my judgment, distinguishable from the Gloucester case (2 O'M. & H. 60), which is the only case reported having any resemblance to the present. There the act complained of was one which, if it had been designed with the intent imputed, would have been calculated to have the effect of mislead- ing persons, without any exercise of judgment, to place their mark on the ballot paper opposite the respondent's name only, and so have been calculated to make persons, by a trick and deception, vote for a candidate for whom at the time of voting they did not intend to vote. In the case before me, the most that can be said is (assuming the statement in the circular to be false to the knowledge of the parties issuing it), that they were by a falsehood appealing to the electors to exercise their judgment in voting for the friend of the parties issuing the circular. Now, I do not think that this clause of the statute was intended to cover cases where parties, although it be by 1875.] LINCOLN. 391 falsehood and slander, appeal to the electors to exercise their judgment how to vote. Election squibs, it is to be regretted, are accustomed to deal freely with the character of opposing candidates ; this, although a practice which is immoral in the extreme, and to be condemned by all honest men, has not as yet, in my judgment, been touched by legislation. (9 Journal Legis. Assem., 1875-6, p. 17.) LINCOLN. Before Mr. Justice Gwynne. St. Catharines, Wth to ^2nd May, 8th to ISth July, and 17th September, 1875. Before the Court- of Appeal. Toronto, 15th December, 1875, BSnd January, 1876. John Charles Rykert, Petitioner, v. Sylvester Neelon, Respondent. Treating in a tavern daring polling hours — Penalties on tavern-keeper and purchaser — Bribery by respondent in compensating for an injury to a voter's wife — Implied knowledge by candidate of agerU's acts of bribery — Appeal. One L. , an alleged agent of the respondent, went into the tavern of one D. during polling hours on polling day, and purchased spirituous liquor, with which he treated himself and several persons there present. Held, per Gwynne, J. , that the penalties provided by s. 66 of the Election Law of 1868 apply only to the tavern-keeper, who as such is able to control what is done on his own premises in violation of the Act, and that the treating by L. was not a corrupt practice. Per Draper, C. J. A.— 1. That section 66 of the Election Law of 1868 must be construed distributively. 2. That under the first part of the section the tavern-keeper is the only person who can incur the penalty, for not keeping his tavern closed during the prescribed time. 3. That under the second part of the section, the persons who incur the penalty are (1) the tavern-keeper who sells liquor in violation of the statute, and (2) the purchaser who gives the liquor purchased by him to persons in the tavern. The wife of one S. , a voter, had been injured some years before the elec- tion by the horses of the respondent, and in 1872 the respondent gave S. compensation for the injury partly by cancelling a debt and partly in cash, for which S. signed a receipt "in full of all accounts and claims whatsoever." The respondent canvassed S. during the election, saying, "I would like to have you with me at the election," but S. 392 PROVINCIAL ELECTIONS. [A.D. declined, expressing dissatisfaction with the compensation made for the injury to his wife, to which the respondent replied that he was able to do, and could do, what was right. Afterwards the respondent sent his salesman to the wife of S., who told her that the respondent was still able to do justice, to which she replied she would write a letter, which she did, and in which she referred to her husband's vote. After the election the respondent gave S. $30 partly by cancelling a debt and partly in cash. The respondent denied that he gave S. to understand that he would give him anything to induce him to vote for him at the election. Held by the Court of Appeal (affirming Gwynne, J. ), That the evidence showed that an indirect offer of money or othef valuable consideration was made by the respondent to S., to induce him to vote for the re- spondent. At a late hour on the day preceding the election some agents of the re- spondent determined to resort to bribery, and they carried out such determination at an early hour on the morning of the polling day. There was no evidence of the respondent's knowledge of, or consent to, this act of his agents. Held (reversing Gwynne, J.), That the shortness of the interval between the resolve and the execution of the bribery, which was carried out at a place several miles away from where the respondent lived, rendered im- probable the fact of the respondent's actxial knowledge of such bribery. Per Gwynne, J. — That if an act, made a corrupt practice by statute, is done by an agent of a candidate, but not iu pursuit of the object of the agency or the interest of the candidate, or in any way in relation to the election, but solely for the purpose, interest, or gratification of the agent, such act, not being done by such agent qua agent, is not within the penalties of s. 3 of 36 Vic. , c. 2. The petition contained the usual charges of corrupt practices, and claimed the seat for the petitioner, the un- succes.sful candidate. Mr. J. A. Miller and the Petitioner in person for peti- tioner. Mr. J. G. Gurrie and Mr. Bethune for respondent. The facts on which the election was avoided are set out in the judgments in appeal. Evidence was also given that one Patrick Larkin, an alleged agent of the respond- ent, went into the tavern of one Doyle at Niagara during ' polling hours on the polling day, and treated several persons there present. Counsel for the petitioner contended that this treating during polling hours was a violation of s. 66 of the Election Law of 1868, and a corrupt practice. The learned Judge held it was not a corrupt practice, and his judgment on that point, not being appealed by the peti- tioner, is given as follows : 1875.] LINCOLN. 393 GwYNNE, J. [After stating the facts and quoting the 66th section of the Election Law of 1868, proceeded :] I confess it does appear to me to be inconceivable that the Legislature could have contemplated the possibility of the section in question being open to the construction that whenever any person,, whether a resident in the municipality wherein the election is going on or not, and whether an elector therein or not, sells or gives any quantity of spirituous liquors, whether by wholesale or otherwise, to any person, whether an elector in the muni- cipality or not, and although the transaction, beyond all question, had no relation to, and has no effect upon, the election, the section is violated and the penalty^ incurred. If then it be, as it appears to me to be, impossible that the section should be construed literally, we must, in order to construe it in the sense intended by the Legislature, endeavor to ascertain with what object, and in order to guard against what evil this section was enacted. And I • confess that the difficulties suggested against construing the section as containing two separate and independent offences, appear to me to be so great as to involve the necessity of excluding such a construction, and of reading the section as defining one offence to the committal of which the prescribed penalty is attached. The prime object of the Act, there can be no doubt, was to secure freedom and purity in elections. The particular section in question is placed under the heading, " keeping the peace and good order at elections." The giving spirit- uous liquor directly, for the express purpose of obtaining a vote, or after a vote was given, in pursuance of a pro- mise made in order to obtain the vote, is sufficiently guarded against, independently of this section, as an act of bribery. The indirect influence which might be exer- cised by the providing any species of entertainment or drink, whether previous to or during the election, to any meeting of electors assembled for the purpose of promot- ing the election at any place except the entertainer's own private residence, where such entertainment is permitted. 394 PROVINCIAL ELECTIONS. [a.D. and the paying, or promising or engaging to pay, for any such drink or entertainment, was provided against by the prohibition contained in the 61st section. Still it remained possible, if spirituous liquors could be obtained at the hotels, taverns, and shops where they are ordinarily sold, that much drinking might be indulged in, whibh the parties partaking of should themselves pay for, and which might injuriously affect the freedom and purity of the election, and from which bloodshedding riots and other breaches of the peace might ensue. Therefore, for greater caution, and with a view to securing that the election should be uninfluenced by any cause arising from the use of spirituous liquors at any of those places during polling day, this section was passed with the intent that " every hotel, tavern and shop, in which spirituous or fer- mented liquors are ordinarily sold, shall be so closed during the day appointed for polling in the wards or municipali- ties, that no spirituous or fermented liquors shall be sold or given to any person within the limits of such ' muni- cipality under a penalty of $100 in every such case." That is to say, in every case in which any such hotel, tavern, or shop-keeper shall, in violation of .this section, sell or give such spirituous liquors or drinks, or permit such to be sold or given upon his premises. But assuming this to be the true construction, still the treating, which is assailed as in violation of the 66th sec- tion of the Act of 1868, occurred at a hotel. Doyle, the hotel-keeper, within the polling hours sold the drinks, of which McClelland, Lavelle, and Todd partook. Doyle is undoubtedly guilty of a violation of the section, and upon prosecution liable to its penalty. It may be also admitted that the act of selling by Doyle, as in violation of the sec- tion, is, under the provisions of the 1st section of 36 Vic, cap. 2, a statutory corrupt act committed by Doyle, al- though the act was never contemplated by any one to have, and although it had not in fact, any effect whatever upon the election, and that moreover by this act of sale, Doyle, upon his being proceeded against and found guilty 1875.] LINCOLN. S9S under the provisions o£ the 49th section of the Act of 1871, will be rendered incapable for a period of eight years of being elected to and of sitting in the Legislative Assembly, and of being registered as a voter, and of voting at any eleption, and of holding any office at the nomination of the Crown, or of the Lieutenant-Governor, in Ontario, or any municipal office. Still two questions remain : Firstly, is Larkin also guilty of a violation of the same 66th sec- tion within the meaning of that section ? And secondly, assuming him to be, and that he was an agent of the respondent, is the latter's election thereby avoided ? The answer to the first of these questions depends upon the construction to be put upon the 66th section referred to, and to the latter upon the construction to be put upon the 3rd section of the Act of 1873. The 66th section undoubt- edly says that no spirituous or fermented liquors or drinks shall be sold or given. Now in the case in question, certainly in one sense, Lar- kin, as the person treating McClelland, Lavelle, and Todd, may be said to be the giver to them of the drinks which Doyle sold and for which Larkin paid, but it is contended that the section is pointed against the hotel, tavern, or shop-keeper, and that it is upon him that the penalty is imposed, and that where a tavern-keeper sells a glass of liquor to A. for the purpose of treating B., who thereupon drinks it while A. pays for it, there is but one act done in violation of the statute, but one offence committed, which is committed by the tavern-keeper, and that two penalties cannot be recovered, the one against the seller and the other against the treater, for one and the same glass of liquor sold. The glass of spirits, for example, which Lavelle drank, was sold only for the purpose of being drunk by him, although Larkin paid for it. For the sale of that glass Doyle is guilty of a violation of the section, and for that glass, for the sale of which Doyle is responsible and liable to be disfranchised for eight years, it is contended that Larkin cannot also be made respon- sible and be subjected to the like penal consequences as 396 PEOVINCIAL ELECTIONS. [a.D. given within the meaning o£ the Act, merely because he pays the price instead of Lavelle. So if a shopkeeper licensed to sell liquors sells a dozen of wine to A., who buys it for the purpose of being sent, and orders the vendor to send it, to B., a poor friend of A's unable to pay for it himself, although this being done within polling hours may make the shopkeeper liable for selling in violation of the statute, it is contended that A., who bought it only that it might be sent to B., to whom the shopkeeper did send it, is not also liable to another penalty as giver. This is a point which would more satisfactorily be raised upon a prosecution for the penalty under the statute. I confess there seems to be great force in the argument. If the true view be, as it seems to me to be, that the act was intended alone to point against hotel, tavern, and shop-keepers, upon whose premises spirituous liquors and drinks are ordinarily sold, and who have it in their power to control what is done there, then the words " sold or given " must be limited to the hotel, tavern, or shop-keeper, and must mean sold or given by him ; the word "given" being added to prevent the possibility of the party proceeded against for the penalty evading the statute by setting up as a defence that he did not sell, but himself gave the drinks. That this is the true construction seems to me to be apparent, when we trace the source from which the 66th section is derived. It and the preceding sections, num- bering from 57, are taken from sections 72 to 81 inclusive, which are grouped under precisely the same heading as clauses relating to the " keeping of the peace and good order at elections," in the Con. Stats, of Canada, 22 Vic.^ cap. 6 ; the 81st sec. of which Act, corresponding with the 66th section of the Act of 1868, enacted that " every hotel, tavern and shop in which spirituous or fermented liquors or drinks are ordinarily sold shall be closed during the two days appointed for polling in the wards or munici- palities in which the polls are held, in the same manner as it should be on Sunday during divine service ; and no spirituous or fermented liquors or drinks shall be sold or 1875.] LINCOLN. 397 given during the said period under a penalty of $100 against the keeper thereof if he neglects to close it, and under a like penalty if he sells or gives any spirituous or fermented liquors or drinks as aforesaid." What was meant by the words in this section, " in the same manner as it should be on Sunday during divine service," is not very clear, for there was no law that I can find then in force in Canada prescribing the duty of hotel and tavern-keepers to keep their houses closed in any par- ticular manner during divine service on Sunday. [The learned Judge referred to various statutes on this subject, viz.. Con. Stats. L. C, c. 6, s. 27 ; Ihid. c. 22, s. 5 ; Con. Stats. U. C, c. 54, s. 264 ; Imp. Stats. 3 George IV., c. 77; 9 George IV., c. 61; 11 and 12 Victoria, c. 49; and proceeded :] But none of those statutes which have re- ference to the period of " divine service on Sunday ' had ever any force in Upper Canada, and it was drinking spirituous liquors at the places which constituted the offence, during the hours of divine service on Sunday. It is difficult, therefore, to understand what the Legisla- ture of Canada meant by the 81st sec. of 22nd Vic, cap 6, which in plain terms enacted two penalties against the innkeeper — the one for neglecting to " close his hotel or tavern in the same manner as it should be on Sunday during the hours of divine service," and the other " if he should sell or give any spirituous or fermented liquors as aforesaid." How the offence of neglecting to keep the hotel or tavern "closed in the same manner as it should be on Sunday during the hours of divine service," could be com- mitted in the absence of the sale or gift of any spirituous or fermented liquors or drinks, and in the absence of all drinking suffered or permitted at the hotel or tavern, I fail to be able to see, and it seems to me that it was most pro- bably this difficulty which induced the draughtsman of the Election Law of 1868 to strike out these ineffectual words, and so to amend the section as to do away with the double penalties, and to enact a single offence with a 398 PROVINCIAL ELECTIONS. [a.D. single penalty, which in my opinion is what is done by the 66th section, which offence consists in the selliag or giving spirituous or fermented liquors or drinks at any hotel, tavern, or shop in which spirituous or fermented liquors or drinks are ordinarily sold. The word drinks, used in the Act of 1868, and in 22 Vic, cap. 6, seems to me very plainly to indicate that what the Legislature desired to guard against was that general habit of " drink- ing spirituous liquors " so common at elections, and which was so well calculated to tend to breaches of the peace and violation of good order at elections, which it was the object of that section of the Act, from which this 66th section was taken, to maintain. But it is further to be observed that in all the above statutes in which I find any reference to the words " during the hours of divine service," and especially in the 22nd Vic, cap. 6, it was the proprietor of the hotel, tavern, or shop where the spirituous or fermented liquors or drinks are ordinarily sold, and who as such is able to control what is done on his own premises, that is made guilty of the offence, and upon whom the penalty for any violation of the statutes is imposed. In my judgment, the 66th section of the Act of 1868 was not intended to have, and has not, any difierent effect in this respect, and such person is, in my opinion, the only person who can be pronounced to be guilty of a violation of the statute, and liable to the penalties which it im- poses, and consequently he is the only person who, in the terms of section 1 of the Act of 1873, can be said to be guilty of the corrupt practice which that statute declares a violation of the 66th section of the Act of 1868, within polling hours, to be. It was the .retailing of drink, and drinking in such a manner as was calculated to affect the purity and freedom of election, which was the evil intended to be guarded against ; and the Legislature, in my opinion, have deemed that object sufficiently attained by making the proprietor of the hotel, tavern, or shop where the spirituous liquoJS 1875.] LINCOLN. 399 are ordinarily sold, answerable for what he permits to be done in violation of the Act. But assuming in the cases put of the treat at the hotel, and the purchase of the dozen of wine at a shop, that not only the seller is liable, but also the person who pays the price, and assuming the latter to be an agent for pro- moting the election of a candidate, will the candidate, if elected, forfeit his seat by reason of such act within the meaning of the 3rd section of the Act of 1873, the first sub-section of which enacts that " when it is found upon the report of a Judge upon an election petition, that any corrupt practice has been committed by any candidate at an election, or by his agent, whether with or without the actual knowledge and consent of such candidate, his elec- tion, if he has been elected, shall be void." If a person who is a candidate choose to appoint as his agent a hotel or tavern-keeper who has an independent interest of his own in violating the statute, and whose violation of it may, as it certainly might, lead to violence endangering the freedom of the election, it would be plainly proper that a candidate who appoints such a person as his agent should have his election avoided, if his agent should so conduct himself in plain contravention of the statute, and we should not stop to inquire whether the violation of the statute did or did not in fact affect the election. It is sufficient that it was well calculated to do so. And it was because it was well calculated to do so that the section prohibiting such practices, and that pronouncing them to be corrupt, were passed. But it seems to be quite another thing where an agent, not himself a tavern-keeper, and being in need of refreshment, goes to a tavern, and for that purpose buys there a glass of beer, wine, or other liquor for himself, and at the same time treats a friend or two to a glass as he would on any other occasion, such treat having no reference whatever to the election, and, it may be, being given to a person not an elector — in such case, *l*hGHgh the tavern-keeper who sells the liquor would .madoubtedly be guilty of a violation of the 66th 400 PROVINCIAL ELECTIONS. [A.D. section of the Act of 1868, and so of the statutory cor- rupt practice declared by the Act of 1873, and even though the agent may also be in like manner guilty, shall the innocent principal in such case have his election avoided by such treat ? The Legislature, no doubt, may arbitrarily enact that any act, even one in which the candidate is in no way concerned, and which is not done in his actual or supposed interest or in pursuit of the object of the election, may notwithstanding avoid the election, but in the absence of the most express words conveying such an intent, we should avoid a construction having such effect. What the Legislature has said upon the subject is con- tained now in the 3rd section of the Act of 1873, which contains two sub-sections that must be read together, and so as to be consistent with each other. The object and effect of that section was plainly, as it appears to me, to repeal wholly the 69th section of the Act of 1868, which had been in effect, though not in terms, repealed by the 46th section of the Act of 1871, and to substitute a clause in lieu of the 46th section. That 46th section of the Act of 1871 had enacted that, where it is found by the report of the Judge upon an ele'ction petition under the Act that any corrupt practice has been committed by or with the knowledge and consent of any candidate at any election, his election, if he has been elected, shall be void, and he shall during the eight years next, after the date of his being so found guilty, be " incapable of being elected to, and of sitting in the Legislative Assembly, and of being registered as a voter and voting at any election, and of holding any office at the nomination of the Crown, or of the Lieutenant-Governor, in Ontario, or any mu- nicipal office." ^ It might perhaps have been held under this section, prior to the passing of the Act of 1873, that a corrupt practice committed by any person should avoid a can- didate's election and subject him to disqualification for eight, years, if committed with his knowledge and con- 1875.] LINCOLN. 401 sent, for the only practices which were corrupt within the provisions of the Act of 1868, or the common law of Parliament, were such as were directly or indirectly done by the candidate himself, or by some person in his behalf, with a view to the promotion of his election ; but whether or not there could have been any corrupt prac- tice committed by any one, other than the candidate him- self or his agent, to which this 46th section of the Act of 1871 could be applied, it is unnecessary to inquire, for that section is repealed by the 3rd section of the Act of 1873, the 1st sub-section of which very distinctly, to my mind, expresses and declares all the cases in which an election shall be avoided, namely, in the cases only of corrupt practices committed by the candidate himself or by his agent at the election, while the 2nd sub-section declares that in addition to the avoidance so declared by the first sub-section, disqualification shall also ensue when the corrupt act which so avoids the election is done by or with the knowledge and consent of the candidate, that is, where it is done by himself personally or by his agent, with his knowledge and consent, for unless done by him- self or his agents, the election is not avoided at all. The second sub-section carefully abstains from saying that any corrupt practice committed by or with the actual knowledge and consent of any candidate shall avoid the election, as the 46th section of the Act of 1871 had done ; it simply annexes to the avoidance of the election, which the first sub-section regulates and declstres, disqualification if the act avoiding the election (which can only be the act of the candidate or his agent) be done with his know- ledge and consent; the whole section taken together enacting that any corrupt practice committed by a candi- date at an election, or by his agent, shall avoid the- elec- tion, whether done with or without his knowledge^ which words can only refer to the acts of the agent, but if done by himself personally, " or with his knowledge or consent" (which words must also be held here to refer to the act of the agent, to be consistent throughout, for no other act 402 PROVINCIAL ELECTIONS. [a.D. but that of the candidate or his agent avoids the elec- tion), disqualification also shall ensue in addition, to the avoidance. Now the avoidance of a candidate's election being con- fined to the acts of himself or his agents, what are the acts of an agent within the meaning of these words in the section, " committed by any candidate at an election, or by his agent V The first section of the Act of 1873 adds to the category of corrupt practices the violation of the 66th section of the Act of 1868. This violation can, in my judgment, be committed only, as I have said, by the keeper of the hotel, tavern, or shop where spirituous liquors or drinks are ordinarily sold, but such yiolation of the section may be committed by a person who is an agent of the candidate, in such a manner as to have no reference whatever to the promotion of the purpose for which the agency was created — in such a manner as in no possible way to be capable of having any effect what- ever on the election ; as, for example, where a candidate and a friend find it absolutely necessary to take, the re- freshment of dinner at an hotel, and at the dinner partake of their usual reasonable quantity of beer or wine — it may be one or two glasses, supplied by the hotel-keeper as part of the dinner — can it be that the Legislature con- templated not only avoiding a candidate's election, but also of disqualifying him for eight years, because (admit- ting, for the sake of argument, the hotel-keeper, within the rigid terms of the 66th section, to have been guilty of its violation) the candidate partook of the refreshments so supplied, or paid for what was supplied to his friend, and was, so far as such act could make him, a consenting party to the violation of the Act by the hotel-keeper. The 66th section does not say that any person consenting to a hotel-keeper or other person violating the 66th section, shall himself be guilty of a violation of it. I must say that, to my mind, it would be contrary to the plainest principles of common sense and justice, to attribute such an intent to the Legislature, or to put such a construction upon the Act. Such a construction would have the effect, 1875.] LINCOLN. 403 in my judgment, of enacting laws of the most penal chai' acter by judicial decision — not by legislative declaration clearly expressed, without which latter sanction, plainly expressed, no penal consequences of any description — much less of the character of those penalties here referred to — can be imposed. Every Act of Parliament should be so construed as to be consistent with common sense and justice, and not so as to do violence to common sense and to work injustice. The sensible construction then of the 3rd section of the Act of 1873, which declares the election to be avoided by the corrupt act of the candidate's agent, seems to me to be to confine its operation to such acts as are done by the agent — I do not say within the scope of, but in the course of or exercise of the agency, and in the pursuit of the object of the agency — acts done as specified in the 67th section of the Act of 1868, directly or indirectly by the candidate himself — some act done with a view to pro- moting in some way the objects of the principal, and not to extend to acts in which the principal is in no way con- cerned, and which are done not with any view to his interests, or to the object of the agency. Such acts are, it is true, the acts of the person who is agent, but they are not the acts of the agent qua agent. In some cases a question may sometimes arise whether or not the act of the agent, which is relied upon as avoiding the election, was done by him qua agent, that is to say,.in the pursuit of the object of the agency, and with a view to the in- terests of the principal; in such cases justice will be done, and the purity of election secured by determining the point in doubt in favor of avoidance, but if, beyond all question, the act complained of is not done in pursuit of the object of the agency, in view of the interest, actual or supposed, of the candidate, or in any way in relation to the election, but solely for the purpose, interest, or grati- fication of the person who is agent, and is not corrupt otherwise than as it is prohibited and made so by the statute, such an act, not being done by the agent qua^ 27 f404 ' PROVINCIAL ELECTIONS. [A.D. agent, is not an act which can, in my opinion, be within the meaning of the 3rd section of the Act of 1873. I am of opinion, therefore, for all of the above reasons, that the respondent's election cannot be avoided for the treat referred to as given by Larkin at Doyle's hotel, although Doyle undoubtedly was guilty- of a violation of the 66th section of the Act of 1868, and thereby of a cor- rupt practice within the meaning of the 1st section of the Act of 1873, and is liable to be made amenable, under that section, to all consequences of having committed a corrupt practice. The learned Judge having, on the other evidence in the case, found that the respondent personally, and by his agents, with his knowledge and consent, was guilty of corrupt practices, the respondent appealed to the Court of Appeal. Mr. Bobinson, Q.C, and Mr. Bethune for the appellant (the respondent to the petition). Mr. J. A. Miller for the respondent (the petitioner). Draper, 0. J. A. — The only reason given for the appeal in this case is as follows : " That there was not sufficient evidence of corrupt practices having been committed by any agents of respondent, or by the respondent himself, or by and with his actual knowledge and consent, to war- rant a judgment voiding the election herein." The judg-- ment was that the respondent was not duly elected — that the election was void "by reason of corrupt practices committed by himself personally, and by reason of other corrupt practices committed by his agents with his know- ledge and consent." In the outset, I must say (speaking for myself only) that I entirely concur in the introductory observations to the judgment delivered, to the effect following : " The diffi- culty which I have experienced in evolving truth from the greater part of this mass of evidence has been great beyond what can well be conceived, arising from the fact 1875.] LINCOLN, 405 that the manner in which many of the witnesses gave their evidence — who from their intimate connection with the respondent in his business relations, and in the con- nection with the canvass on his behalf, should reasonably be expected to be able to place matters in a clear light — has left an impression on my mind that their whole object was to suppress the truth." Apart from the weight to which the opinion of the learned Judge is entitled, he having heard the whole evi- dence, 'and having had the fullest opportunity to notice the demeanor of each witness, his manner of giving evidence, whether serious and considered or otherwise ; and having myself repeatedly gone over it to compare the statements of the witnesses, I feel it my duty to say that I recognize the justice of the censure thus passed upon no inconsiderable portion of the testimony ; and severe as the comment undoubtedly is which the learned Judge felt himself called upon to make in regard to the evidence of Mr. John W. King, I see much reason for thinking that it was not uncalled for. One illustration of the want of correspondence between their verbal resolves and their actions may be given. On the afternoon or evening of Saturday the 16th January (the poll was to take place on Monday following), as one witness stated, "We spoke about spending money, but it was resolved not to. It was the subject of general conversation. Spending money was talked of the same as any other election matter, but there was no way of spending it, the law was so strict." On the Sunday evening (Mr. James S. No'rris is the witness) some parties met at Mr. John W. King's house, at St. Catha- rines, Mr. King being the book-keeper and confidential clerk of the respondent. Mr. Norris says : " There was a discussion that evening which would lead to the require- ment of money. They spoke, I think, of money being used against them. The party said so The impression among us was that money was being used against us, and we spoke of using money to counteract it. We decided not to use any money." That same evening, 4(06. PROVINCIAL ELECTIONS. [A.r>. at a late hour, Robert McMaugh and Hugh Hagan left St. Catharines. They drove to Clement's, the postmaster, and with him went to several houses. The evidence as to the acts of some one or other of them is quite sufficieni as against them to sustain the charge of bribing voters. Whether the evidence, on a consideration of the whole case, will bring the respondent within the scope of sub- sec. 2, sec. 3, of 36 Vic, c. 2, on the ground of corrupt practice committed by and with his actual knowledge and consent, is a question which will be more conveniently disposed of after other cases have been stated and re- marked upon. The case of treating during polling hours in a tavern in the town of Niagara, by giving spirituous liquors which were drank in the tavern, calls for an interpretation of the 66th sec. of the Act of Ontario, 32 Vic., cap. 21. The section is placed in a division of the statute headed " keeping the peace and good order at elections," and is thus worded : " Every hotel, tavern and shop in which spirituous or fermented liquors or drinks are ordinarily sold, .shall be closed during the day appointed for polling in the wards and municipalities in which the polls are held ; and no spirituous or fermented liquors or drinks shall be sold or given to any person within the limits of such municipality during the said period, under a penalty of $100 in every such case." The law previously in force in the Province of Canada on the same subject was : "Every hotel, tavern and shop in which spirituous liquors are ordinarily sold, shall be closed during the two days appointed for polling in the wards or municipalities in which the polls are held, in the same manner as it should be on Sunday during divine service, and no spirituous or fermented liquors or drinks shall be sold or given during the said period, under a penalty of $100 against the keeper thereof if he neglects to close it, and under a like penalty if he sells or gives any spirituous or fermented liquors as aforesaid." 1875.] LINCOLN. 4.07 It is, as I understand, contended that the change of language in the latter Act, omitting the special limitation of the penalty to " the keeper thereof," makes no differ- ence in the construction, and that the offence which sub- jects to the penalty can only be committed by the hotel, tavern, or shop keeper, under the present statute, which I shall not contend would not be the true construction of the statute of Canada. It is also, as I learn, further contended that section 66 creates only one offence, consisting of two parts, viz. : (1) not keeping the tavern, &c., closed ; (2) selling or giving spirituous or fermented liquors to any person. If the latter proposition be correct, it may be that no one but the keeper can incur the penalty ; but, confining atten- tion strictly to the language of the section, I think the pro- position untenable. I will first endeavor to meet a suggestion that, unless the section is read as indivisible, the non-observance of the first part will incur no penalty. This appears to me to make the question depend upon punctuation. Put a f uU stop after the word " closed," and it may be so ; but read the whole together, without pause, or even with a comma after " closed," and give legitimate effect to the closing words, " under a penalty of $100 in every such case" and the objection disappears. In every case in which the preceding enactments are violated a penalty is in- fiicted, as well when the house is not kept closed as when a glass of wine, or of spirits, or of beer is sold or given. There is a further reason for construing this section dis- tributively, though the amount of the penalty is the same in all cases. The authority of Crepps v. Durden, Oowp. 640, has never been questioned ; it has been frequently recognized, and was the unanimous judgment of the Court of Bang's Bench, delivered by Lord Mansfield. The point decided was that where a statute iiiiposed a penalty upon a man for exercising his ordinary calling on the Lord's day, he could commit but one offence on the same day. As regards the form, it can make no dif- 408 PROVINCIAL ELECTIONS. [A.D. ference that our statute is mandatory, ordering that the house, &c., be kept closed, while in the English Act it is prohibitory — " No tradesman or other person shall do or exercise any wordly labor, business or work of their ordi- nary calling on the Lord's day." In Lord Mansfield's language, " The offence is exercising his ordinary calling on the Lord's day, and that, without any fraction of a day, hours or minutes, it is one entire oifence, whether longer or shorter in point of duration, and so whether it consist of one or a number of particular acts." In that case the act complained of was exercising his ordinary calling by selling hot rolls of bread. That was the mode in which the ordinary calling was exercised. The selling hot rolls was not prohibited, the exercise of the ordi- nary calling was. In our case the Legislature have not stopped short at commanding that the tavern should be kept closed, they have also prohibited two other distinct matters — selling and giving liquor, &c. The first is of a character which falls directly within the principle of Crepps V. Burden — only one such oifence can be commit- ted on the same day ; the second, forbidding acts which may be repeated again and again with or to difierent in- dividuals all day long — and they have imposed the pen- alty in every such case. It appears to me to follow that the keeper of the hotel, tavern or shop is the only person who can incur a penalty for not keeping the same closed during the day appointed for polling. The violation of this 66th section is made a corrupt practice by 36 Vic, cap. 2, s. 1, provided such violation occurs "during the hours appointed for polling." , The reason for a difference between the 66th section and the 1st section of 36 Vic, cap. 2, is not very obvious ; but for some -cause penalties are imposed by the one for any violation of its provisions during the day appointed for polling ; but to constitute the same violations corrupt practices, they must take place " during the AoMrs appoint- ed for polling." With that exception, the off"ences remain 1875.] LINCOLN. 40a as defined in the 66t}i section, and for the purpose of im- posing the penalty there is no change. The Legislature, however, appear to have taken a more serious view of these offences than they did when the Act of 1868 was passed. There may have been a necessity for some greater punishment than a mere pecuniary penalty to check the undiminished practice of having taverns open on polling days, or of selling liquor or treating on those days, and hence the additional provision in the 36th Victoria. But for the word "give" I might have thought the whole section 66 was confined to the keepers of hotels, taverns and shops. But lookii^g at the object, viz., " keep- ing the peace and good order at elections," and the pro- hibition to give as well as to sell, I think that would be too narrow a construction ; and I am of opinion that any person who during the day appointed for polling shall give any spirituous or fermented liquor or drink to any other person within a hotel, tavern or shop in which such liquors or drinks are ordinarily sold, in the Xvards or municipalities in which the polls are held, is as guilty of a violation of the section in question as the keeper of such establishment would be who himself should give the liquor. If it was intended to limit sec. 66 to the hotel- keepers, &c., by the provision that no spirituous or fer- mented liquors or drinks shall be sold or given, it would have been much simpler to have said within his hotel, etc., instead of within the limits of such municipality, and simpler still to have said, and no keeper, etc., of any such hotel shall sell or give^ etc. The peculiar form of expression tends to show that the Legislature intended to prescribe one thing, i.e., keeping the hotel, etc., closed ; and to forbid another, i.e., selling or giving liquor, and to impose a penalty on every person who neglected to obey the one, or who acted in defiance of the other. As the tavern-keeper, etc., who sells in violation of the statute commits an offence, so the purchaser is equally 410 PROVINCIAL ELECTIONS. [A.D. guilty with the former if he gives the liquor purchased by him to persons in the tavern. That Larkin was an active agent of respondent is suffi- ciently proved, and in my view of the law he was guilty of a corrupt practice in treating at Doyle's. The karned Judge, after a very elaborate consideration of the statute and of other authorities which he has referred to in re- lation to the question, held that the election could not be avoided for this treat, and the petitioner has not appealed against that decision. The case of W. H. Stewart (the colored man) remains to be considered. Upwards of two years before the elec- tion a pair of respondent's horses ran over Stewart's wife, and one of her legs was broken. She was laid up for eight months in consequence. At that time Stewart was indebted to the respondent, and the debt was written off in the respondent's mill book. Mr. J. W. King gave this account of the matter : " Mr. Stewart had no legal claim. It was an act of charity to pay him what we did. It is two years since we paid him, whatever it was. It was given as a little present on account of the affliction." And on the 23rd November, 1872, Stewart signed a receipt in presence of J. W. King as follows : " Received from S. Neelon the sum of fifty -four dollars and sixty-six cents, in full of all accounts or claims whatsoever." About a week before the election now' under consideration, the respondent, having apparently heard that Stewart or his wife vvere dissatisfied, sent his salesman, Sisterson, to see her. She told him she was not satisfied — she did not think respondent had done her justice. After the election she came and saw the respondent, and he told her he would give her $30, and asked if that would satisfy her. Credit was then given for $19.12 on an account against Stewart, and $18.88 was paid to her in cash, by respondent's direc- tion. But before this payment, and also about a week before this election, Stewart and the respondent met at the municipal election at the Grantham school-house, and according to Stewart's account, respondent said to him. 1875.] LINCOLN. 411 " I would like to have you witli me at the election." Stewart replied he could not very well be with him be- cause he, respondent, did not give what Stewart thought were the damages due to his wife. That he told respond- ent he had not done him justice, and that respondent said if he had not done what was right; he was able to make it right. Respondent did not say anything about his (Stewart's) vote, but he told more than one time that he would like to have Stewart with him. Daniel Stanley was sitting with Stewart at the time, and says respondent asked Stewart if he was going to do anything for him ; that Stewart said, " No, sir, I cannot." Respondent asked, " Why ?" Stewart said, " You did not do the fair thing when my wife's leg was broken." This is Stanley's account, and he goes on : Mr. Neelon said, " If you will see me in this cause or case, if I have not done the fair thing, I will do the fair thing." Stanley says he heard the conversation distinctly — he could not help hearing it particularly, and did not think there was anything wrong in what was said at the time, and did not think from the language that Mr. Neelon was trying to buy the man's vote. And Robertson, who was standing near, heard re- spondent say, " Mr. Stewart, I am willing to do it, and will do it." Stewart says respondent began the conver- sation by saying, " I would like to have you with me at the election." Then Stewart expressed his dissatisfaction as to the compensation made for the injury to his wife, and respondent said if he had not made it right, he was able to make it right. And he wound up his evidence by saying, " Mr. Neelon said to me, ' Mr. Stewart, I want to do what is right. I am able to do what is right. I can do what is right.' It was not said by way of a bargain. Mr. Neelon only told me he wanted me to support him ; he did not make the payment depending on my voting for him." Stewart told his wife what had passed, and she wrote .a letter to respondent, beginning, " You sent me word by my husband dbcmt voting, and what I had to say, and if you do what is right, he can use his own pleasure 412 PROVINCIAL ELECTIONS. [A.D. about it And now you can use your own pleasure about it, but I think you will do what is right. If you do, give me $100, and 1 don't think that will be anything out of the way.'' This letter is dated January, 1875, no day stated. Stewart says he went to the mill about dusk with the letter, and gave it to a man who attends at the mill. He saw King and Sisterson after- wards, and not hearing anything about the letter, he asked Mr. King if he had seen the letter, and he said he had read it, hung it up, and put it on file. He afterwards asked Mr. King, and he said respondent had read the letter and placed^ it on file. Then afterwards he saw respondent, who gave him $30— not all in cash. He deducted a bill Stewart owed at the mill, and gave the balance in money. Sisterson says that about a week before the election, respondent sent him to see Mrs. Stewart. He told her respondent was still able to do justice — he did not say respondent would do justice ; he was not authorized to say anything of the kind. Mrs. Stewart told him she would write a letter. It was at her own dictation that, she wrote the letter stating what her claim was, and Sisterson said, " That will be just as well." In reference to this the respondent swears : " I gave him (Stewart) to understand I would not give him a cent to go with me in the election. I used no such language as ' If I had not done the fair thing, I will do it if you will be with me,' or anything in substance the same ; nor did I say, ' If I had not made it right, I would make it right.' After the election was over, Stewart came to the mill and asked if I had received a letter he had left there. I said no. He went out and made inquiry of King or Sisterson, and they came in with the letter, which was found in a pigeon hole in my desk. I opened the letter and read it." Looking at the whole of this evidence, I cannot resist the conclusion that the respondent errs in his representa- tion — he does not say so in express words — that he knew nothing of this letter until after the election. He had 1875.] LINCOLN. 413 heard of Mrs. Stewart's dissatisfaction, and before the election he sent Sisterson to her ; she told him she would write, and his statement clearly indicates he was present when she dictated the letter ; his remark, " that will be just as well," clearly indicates that he knew of its con- tents, makes it at least highly probable that she had expressed her views to him, which, but for the letter, he would have communicated to respondent. Sent for the express purpose of asking Mrs. Stewart " what was the matter with her," Sisterson must, on his return, have given some account to respondent, and if he said what, if his present account be true, he must have said, that she was going to send a letter, it makes it unlikely that the letter, when it arrived, should have been put away in a pigeon hole unopened. King says, in reference to letters for respondent arriving when he was not at the mill, "If he was not at home I opened them. . . . He was not absent, only for meetings, and his letters always remained on his desk." Stewart swears that King told him that he had read this letter and put it on file, and afterwards told him that respondent had read it and put it on file. If King read it, and it seems to have come to his hands upon or soon after its arrival at the mill, I cannot assume that he put it in respondent's desk without mentioning it. On the whole, I deduce as a fact that respondent became aware of it before the election, and thought it as well to leave Stewart to vote without further interference, being satisfied Mrs. Stewart would not influence him adversely. But in any event the letter shows what impression the conversation with respondent produced at the time on Stewart, and I attach more value to that than to his sub- sequent assertion, which literally was no doubt true, that respondent did not make the payment depend on his voting for him. Stewart went to his wife, apparently immediately after parting with respondent, and tells her about it, and she writes, or rather dictates, a letter to respondent, beginning, " You sent me word by my hus- band about voting, and what I had to say, and if you do 414 PROVINCIAL ELECTIONS. [A.D. what is right, he can use his own pleasure about it." I cannot doubt that, whatever were the precise words used by respondent, the conversation between him and Stewart related to the election and to Stewart's vote, and that Stewart's statement that respondent said to him, " I would like to have you with me at the election," is the key-note to all that followed. Stewart understood it, though his vote was not directly mentioned, and the respondent expected it would be so interpreted though so guardedly veiled ; and the subsequent settlement and payment confirm me in this conclusion. I feel therefore constrained to hold this to have been an indirect offer, originating with the respondent, of money or valuable consideration, made to Stewart to induce him to vote for respondent at the coming election, and I there- fore agree in the judgment that the election is void by reason of this corrupt practice committed by the respond- ent himself, as well as by reason of other corrupt practices committed by James S. Clement, Eobert McMaugh, Hugh Hagan, and others his agents. Before concluding, I desire to make an observation as to the proceedings and bribery which are proved to have occurred on the Sunday night before, or in the early morning of the day of the polling. The professions of a candidate that he is entirely ignor- ant of the conduct and acts of his most zealous supporters, especially in reference to such acts as are rarely adopted except as a last resort, must unavoidably be regarded with suspicion, and cannot be accepted without scrutiny. And this the more if among these supporters are found some who for years have been and still are in his service, em- ployed and trusted by him in business relations, some of them confidential, and of frequent, perhaps daily occur- rence — the candidate, to insure immunity, to all appear- ance keeping aloof from the consultations of his friends, avoiding any apparent participation in their acts, and thus remaining ignorant of everything which might not be- come known to the most ordinary observer — ignorant, in 1875.] LINCOLN. 415 fact, because he will not use the means of information which surround him. Such ignorance brings to mind the old maxim, IgnoraTi- tia juris quod quisque tenetur scire neminem excusat, and makes Mr. Best's comment on the maxim more pertinent : " If those only should be amenable to the laws who could be proved acquainted with them •. . . persons would naturally avoid acquiring a knowledge which carried such dangerous consequences with it." And so the wilful avoidance of a knowledge also fraught with danger might, without much strain, be deemed evi- dence of approval or even of consent. But in this case I do not find any proof of a determin- ation to resort to bribery until a late hour on Sunday evening, and it was immediately acted upon and carried out by an early hour on Monday morning. As a fact, I cannot find proof of the respondent's knowledge or con- sent. The evidence of agency I think ample, so also of bribery by those agents, and this avoids the election. The shortness of the interval between the resolve and the execution renders improbable the fact of the respondent's actual knowledge, and a finding against him ought to be free from reasonable doubt. Burton, J. A. — I concur in thinking that this appeal must be dismissed, but I desire to base my decision en- tirely upon the Stewart case. I agree with the learned Chief Justice, that there is no evidence to connect the respondent with what is spoken of as the Sunday raid. That transaction was conceived and carried out only a few hours before the polling day, and there is not a scintilla of evidence to show that the respondent had knowledge of it, nor, in my opinion, that there was any arrangement to which he was a party, that he should be kept in ignorance of the particular acts of corruption, whilst having a general knowledge that such means were being employed ; and — adopting the language of the late Mr. Justice Willes — no amount of evidence 416 PROVINCIAL ELECTIONS. [A.D. ought to induce a judicial tribunal to act upon mere sus- picion, or to imagine the existence of evidence which might have been given, but which the. petitioner has not thought proper to bring fprward, and to act upon that evidence, and not upon that which really has been brought forward ; and that when circumstantial evidence is relied on, the circumstances to establish the affirmative of a proposition must be all consistent with the affirmative, and that there must be one or more circumstances believed by the tribunal, if you are dealing with a criminal case, inconsistent with any reasonable theory of innocence. There is nothing in the whole of the evidence which is not consistent with the respondent's innocence. As regards the Stewart case, there was evidence which might impress different minds differently. In dealing with the finding of the learned Judge upon that evidence, we are much in the position of Judges when a rule is moved for to set aside the verdict of a jury en the ground that the verdict is against evidence. The Judges do not consider what conclusion they would have arrived at had they been placed in the position of the jury, but whether there is sufficient evidence to warrant the verdict, and whether the presiding Judge is satisfied with it. Here the learned Judge has found upon the evi- dence adversely to the respondent, and I should not pre- sume on a question of fact to set up my opinion against his, when he had the advantage of hearing the witnesses, apart from the deference which I feel to be due to a Judge of his learning and experience. Patterson, J. A. — This is an appeal from the decision of Mr. Justice Gwynne, which sets aside the election and disqualifies the candidate for corrupt practices committed by him. The evidence on one of the charges, viz., that of bribing a colored man named Stewart, is quite sufficient to sus- tain the finding, and I see no reason for taking a diflferent view of it from that taken by the learned Judge. 1875.] LINCOLN. 417 The facts stated in evidence were, that Stewart's wife had her leg broken about two years before the election by Mr. Neelon's team, which had run away, and Mr. Neelon had paid her or her husband $55 as compensation, partly by cancellijig an account and partly by cash. It does not appear that after that settlement the Stewarts had had any open account with Mr. Neelon, or had been obtaining goods on credit, until January, 1875. The Stewarts were dissatisfied with the settlement, but nothing was' done to remove their dissatisfaction until the approach of the election, now in question. This election was on the 18th January, 1875. When the municipal election for the township of Grantham was being held, in- the beginning of the same month, Mr. Neelon spoke to Stewart in a school -house where a number of people were, and asked for his support, which Stewart declined to promise, saying that Mr. Neelon had not done the fair thing when his wife's leg was broken, and Mr. Neelon gave him to understand that he was willing to " do the fair thing." Mr. Neelon himself denies that he made any promise to Stewart, although he says that Stewart had put forward his grievance as a reason for not supporting him, both on the occasion in the school-house and on another occasion shortly before that, when Mr. Neelon had been canvassing him for his vote. After going home from the school- house, Stewart appears to have told his wife of the con- versation with Mr. Neelon, and some little time afterwards she wrote, or dictated to her daughter, a letter to Mr. Neelon, commencing thus: "Mr. Neelon, you sent me word by my husband about voting, and what I had to say, and if you do what is right, he can use his pleasure about it," and ending by asking $100 more. Mr. Neelon had asked a Mr. Sisterson, who was his salesman at the mill, and apparently a confidential agent in the election contest, to go to Mrs. Stewart to see "what was the matter with her," and Mr. Sisterson was at her house when this letter was being written, and was told of it by Mrs. Stewart. The letter was promptly sent by Stewart, 418 PROVINCIAL ELECTIONS. [A.D. and delivered to some one at Mr. Neelon's mill or office. Mr. Neelon says the contents of it did not come to his knowledge till after the election. There is quite room on the evidence ■ for a different inference, but the matter is not very important. The letter shows^ at all events, the terms on which the Stewarts understood the negotiation to be proceeding. Following Sisterson's visit and the sending of the letter, the facts next in order of time are shown by entries in Mr. Neelon's books, where Stewart is charged, under date 13th Jan., $4.44 for flour, &c., and on the 16th Jan., $11.17. The election was on the 18th January. On 10th February Stewart is charged with flour, &c., to the amount of $3.51, making in all $19.12. Afterwards, Mr. Neelon himself settled with Stewart, allowing him $30 additional compensation in respect of the accident, which he paid by giving him in cash the difference between the $19.12 and the $30. The learned Judge having been satisfied, upon evidence of this character, that Mr. Neelon had directly or indi- rectly, by himself or by some other person, given, ofiered, or promised money or valuable consideration to Stewart in order to induce him to vote, it is impossible for us to say that he ought to have come to any other conclusion. This disposes of the appeal without the necessity of discussing the other matters covered by the very careful and elaborate judgment of the learned Judge. One of these subjects, viz., the construction of section 66 of the Act of 1866, and the effect of the Act of 1873, when that section has been violated with the knowledge and consent of the candidate, we have already had occasion to notice in the judgment of this Court in the North Wentworth case (ante p. 343). And we have further to construe section 66 in the South Ontario case {post p. 420), in which judgment is now to be delivered. With respect to the charge founded on what is spoken of as the " Sunday raid," I shall merely say that I am not prepared to assent to the application to that case of 1875.] LINCOLN. 419 the principle on which the London case (a) was decided, or to hold that on that principle alone the candidate is to be fixed with knowledge of the bribery committed by his agents, however gross and deliberate that bribery may have been, and however strong may be the suspicion created in our minds that the candidate can hardly have been quite ignorant o£ what was being done on his behalf. I entirely assent to the distinction which was clearly pointed out by Mr. Eobinson in the very able argument, which he addressed to us, between the case of a city where, within a comparatively small area and for the space of two or three weeks, bribery had been going on so extensive and so flagrant as to be appropriately described as per- vading the atmosphere ; where not to ascribe knowledge of it to the candidate in whose interest it was committed, and who was on the spot, would be to forego experience and give no weight to probabilities so strong as to be almost irresistible ; and where, in the graphic language of the same learned Judge whose judgment is now on review, one could " as readily believe it possible for the respond- ent to have been immersed in the lake and to be taken out dry, as that the acts of bribery which the evidence discloses to have been committed on his behalf, almost under his eyes, in his daily path, with means ai corrup- tion proceeding from his own headquarters and from the hands of his confidential agents there, could have been committed otherwise than with his knowledge and con- sent," and the present case, where what was done was done only a few hours before the election, and though initiated in the town where the candidate lived and by agents who were in his confidence, was carried out at a place several miles away, and amongst the voters in one locality only of a county constituency. I agree that the appeal should be dismissed with costs. Moss, J. A., concurred. Appeal dismissed with costs. (9 Journal Legis. Assem., 1875-6, p. 199). (a) Reported Dominion Elections, 1874, post. 28 420 PROVINCIAL ELECTIONS. [A.D. SOUTH ONTARIO. Before Mr. Justice Wilson. Whitby, 11th to 13th May, 1876. Before the Court of Appeal. Toronto, ^2nd December, 1875, 22nd January, 1876. Abram Farwell, Petitioner, v. Nicholas W. Brown, Respondent. A gency — Po litical association — Oommittees — Om-rupt practices — Treating during polling hours — " Municipality in which polls are held" — Ee- spondent treating himself during polling hours — New charge in Appeal — Particulars. The respondent was nominated by a Conservative association, and he accepted the nomination. The delegates to the association were to do all they could to secure his election. A committee was appointed in 0. to canvass the town, and a committee-room was engaged and paid for by the association, voters' lists were procured and used as can- vassing books, and members were appointed to canvass parts of the town, and reports were made to the committee of the result of the canvassing. The respondent, who resided at W. , did not attend the meetings, but knew they were canvassing for him, and gave them blank appointments of scrutineers to fill up, which they did, but the respondent did not know who composed the committee. Held, per Wilson, J. , that the respondent, by authorizing such committee at 0. to appoint scrutineers, made them his special agents for that par- ticular matter and for that occasion only, and did not adopt them as his general agents for all the purposes of the election. One T., a member of such committee, canvassed actively for the respond- ent and to his knowledge, and on the nomination day attended a meet- ing of the respondent's friends in W. , at which the respondent was present, and at which arrangements were made about canvassing and getting out votes, and generally about the election. Meld, by the Court of Appeal ( Wilson, J. , dubitante), that T. was an agent of the respondent for the purposes of the election. One G., a member of the same committee, had a voters' list, and can- vassed for the respondent, and stated he had no doubt the respondent expected him to vote and work for him. Held, per Wilson, J., that G. was not an agent of the respondent. The committee at the town of W., having been recognized and attended by the respondent, were held to be his agents. One B. was a member of the committee at W. for the respondent's elec- tion, canvassed for him, and met him at the committee-rooms once or twice, B. was also appointed in writing by the respondent to act as scrutineer for him on the polling day, and during polling hours gave whiskey to the Deputy Returning Officer in the polling booth. Held, per Wilson, J., that B., while acting as such scrutineer, was not acting in his former capacity as committee-man or agent of the respondent, and that his appointment as scrutineer did not empower him to do an act of treating so as to make the respondent answerable for it. 1875.] SOUTH ONTAEIO. 421 One C, a member of such committee at W., partook of whiskey in the kitchen of a tavern at W. during polling hours, and also, when bring- ing a voter from the town of 0. to the town of W. (within the same electoral division) to vote at W., treated himself and the voter in 0. Held (Draper, C. J. A., dissentiente), that 0. was not guilty of corrupt practices within s. 66 of the Election Law of 1868. Held, by the Court of Appeal (Draper, C. J. A. , dissentiente), that s. 66 of the Election Law of 1868 (32 Vic, c. 21), as amended by 36 Vic, c. 2, applies only to shop, hotel and tavern keepers, who alone are liable to the penalties for keeping open the tavern, etc., and for selling or giving spirituous liquors during the prohibited hours. Held, by the Court of Appeal (reversing Wilson, J.), that the prohibition in such section (66) as to opening taverns and giving or selling liquor "in the municipalities in which the polls are held," applies to all the municipalities within the constituency, irrespective of the place where the vote is given or to be given. The respondent, on polling day and during polling hours, went to a tavern at W. and partook therein of spirituous or fermented liquor, for which he did not then pay. Held, per Wilson, J., that he did not "sell or give" spirituous liquors within the meaning of s. 66 of the Election Law of 1868. The petitioner was not allowed to urge before the Court of Appeal a charge of corrupt practices against the respondent personally, which had not been specified in the particulars, or adjudicated upon at the trial of the petition. The petition contained the usual charges of corrupt practices. Mr. Bethune and Mr. A. G. McMillan for petitioner. Mr. Hector Cameron, Q.O., and Mr. Billings for respondent. The evidence affecting the election is set out, in the judgment. Wilson, J. — -The petitioner contends he has proved cor- rupt practices to have been committed by W. H. Thomas and F. E. Gibbs, who, he says, were the general author- ized agents of the respondent, and that he has proved corrupt practices to have been committed by W. H. Billings and Francis Clark, who, he says, were the general agents o£ the respondent, but if not, he says they were his agents for the purpose of charging him with treating, and that will be sufficient for the petitioner's case. He charges also that the respondent having had liquor sold or given to himself during the polling hours at Ray's tavern, in the town of Whitby, was personally guilty of 422 PROVINCIAL ELECTIONS. [A.D. a corrupt practice within the 66th section of the Election Law of 1868. It must be considered — Firstly.: Whether Mr. Thomas and Mr. Gibbs were, or either of them, and which of them was the general agents or agent of the-jespondent ? Secondly : Whether Mr. Bil- lings and Mr. Clark were, or either of them, and which of them was the general agents or agent of the respondent, and if not the general agents or agent, whether they were, or either of l^hem was, the agents or agent of the respond- ent so far as the alleged corrupt practices charged are concerned ? Thirdly : If Thomas were the agent of the respondent, has he been guilty of corrupt practices ? Fourthly: If Gibbs were also an agent, has he been guilty of corrupt practices ? Fifthly : If Billings were an agent, has he been guilty of corrupt practices 1 Sixthly: If Clark were an agent, has he been guilty of corrupt practices ? Seventhly : If Thomas were an agent, has he been guilty of corrupt practices by having had given to him a glass of brandy by G. Hodson at the village of Columbus in polling hours? Eighthly: Whether the respondent was guilty of corrupt practices by having had sold or given to him at Ray's tavern, by the person attending the bar there, liquor during polling hours ? The first question I have to deal with is whether Thomas was the agent of the respondent for the purpose of the election ? That of course depends upon the evidence, and it is to this effect. Thomas said : " I was at the conven- tion for choosing delegates, and was chosen one of them. I think it was called by the Conservative Association for the South Riding. I am a member of the association. The meeting was at Brooklin. The delegates retired to an adjoining room and chose Mr. Brown by ballot. Brown accepted the nomination two or three days after. It was understood these delegates were to do all that they could to secure Mr. Brown's election. There was a meet- ing at the committee-room in Oshawa a few days after Brown's acceptance ; don't know who engaged or paid 1875.] SOUTH ONTARIO. 423 for the room. The committee met there nearly every evening until the election was over. It was arranged that certain members of the committee were to canvass certain parts of the town. I was to canvass generally. There were voters' lists got and put into the form of books for canvassing ; think the Conservative Association paid for the use of the room. The scrutineers were appointed by the committee. I suppose blank appointments, signed by Mr. Brown, were got and filled up by the committee. I did what I could in the riding for Mr. Brown. I had not much else to do at the time, and I went into this elec- tion to win. I met Brown at Oshawa during the canvass. He was not at our meetings. No arrangement that he was not to attend. From anything that passed between us, I do not know he knew I was canvassing for him ; I sup- pose he knew I was doing all I could for him. There were reports made to committees of the result of the canvass- ing. On nomination day, after the nomination was over, a meeting of Brown's friends was held in the room over the Chronicle office in the town of Whitby. Brown came to it ; it was to arrange about canvassing and about getting out voters and generally about the election. I was there only a few minutes There were volunteer teams from a number of people for the election, and among them from myself. I drove one Hoey as far as Cedarville to vote, drove him in the team I had hired to go to Port Perry in the North Riding to vote ; did not hire the team to take him, but to go to Port Perry. I had $50 bet on the result of the election." That is the whole of the evidence as to acts on which the agency for Brown is founded and from which it is to be inferred, excepting the acts of treating, which are the corrupt practices to be connected with the alleged agency. Do these acts establish the agency ? The Brooklin meeting was called by the Conservative Association before there was any candidate. The meeting of the delegates was also before there was a candidate. Brown's first act was two or three days after his nomination by the delegates. 424 PROVINCIAL ELECTIONS. [A.D. So far, Thomas was not his agent ; he was only a member of the party which supported Brown afterwards, and it may be an active member, too. The delegates were to do all they could for Brown. Brown resided in Whitby; Thomas resided in Oshawa. The committee meetings Thomas speaks of were held in Oshawa. The committee- room was paid for by the Conservative Association. It may be presumed that all that was done up to the time of the hiring of the committee-room in Oshawa was done by the Conservative Association, or by the voluntary con- tributions of the electors in order to secure a represen- tative on the side of that body or party. It is what took place after that which must be chiefly relied upon to con- nect or identify Brown with the acts of Thomas, although the previous conduct and position of Thomas must not be wholly lost sight of. What happened after the committee- room in Oshawa was opened was this : The committee met almost every night upon election business. They provided for canvassing the town. Thomas was to canvass generally ; he was not restricted to any particular division of it. Voters' lists were got by the committee for can- vassing. Thomas met Brown at Oshawa during the can- vassing. Thomas supposes Brown knew he (Thomas) was doing all he could for him. Brown signed blank appoint- ments of scrutineers, and delivered them in some way to the committee in Oshawa to fill up, and they did so. At the meeting held after the nomination on nomination day, at which Brown was present, it was arranged that there should be canvassing, voters brought up, and other usual means taken to forward the election. Thomas says he went in to win at this election, and he did what he could do for Brown all over the riding, and he had $50 bet on the result of the election. There can be no doubt, then, that under these circum- stances, and from his conduct on the polling day, that Thomas was a very active committee-man and partizan for Brown, and. that he was clearly an agent of the com- mittee. I was disposed to think very strongly that Thomas 1875.] SOUTH ONTARIO. 425 was shown to be an agent of the respondent during and for the purpose of the election, on the following grounds . Brown knew there was a committee sitting in Oshawa in connection with his election, because he entrusted that committee with blank appointments of scrutineers signed by him, to fill up with the names of such persons as the committee selected for that duty ; in fact, that he left such blank appointments with the committee was a dele- gation of power to that body, to that extent at all events, to act for him. Brown knew Thomas was doing all he could for him, although not from anything which was said between them, and although it does not appear Brown knew Thomas was a member of the committee, and Brown knew generally that canvassing and the other ordinary pro- ceedings as to elections were being carried on in Oshawa for him, and I thought it must be said that Brown did know that Thomas was doing all he could for him during that period of canvassing, and so that there was sufficient authority conferred on Thomas to continue so to act, and of a ratification by Brown of what Thomas had already done. If it were not that Brown gave authority to the com- mittee to appoint the scrutineers, I think it could not be said that the evidence showed that Brown was identi- . fied with the committee, but that it was a committee merely in his interest, got up either by the Conservative Association or by voluntary contributions of the people of the village favorable to that party and to the candi- date. Staleyhridge case (1 O'M. & H. QQ) ; Westminster case (1 O'M. & H. 91). Having given that authority, he did to that extent constitute the committee his agents ; but I think he thereby did not adopt them as his general agents for all purposes, and so constitute each member of it his repre- sentative to canvass or to make him responsible for the bribery or treating of the members. Empowering a per- son to act as objector-general at the revision of voters' lists does not give him authority to bind the candidate 426 PROVINCIAL ELECTIONS. [A.D. by an act of bribery : Wigan case (1 O'M. «fe H. 188). I thought that strictly agency on the part of Thomas was established by the evidence referred to, although there was no express or direct authority given by Brown to Thomas to canvass generally or to do all he could for him. I did not think it was conclusive evidence of agency ; but that it was evidence nevertheless, and it certainly is so. But I am disposed to doubt whether agency has been established either in fact or by implication, for the follow- ing reasons : The original meeting to choose delegates was called by the Conservative Association, Thomas being at the time a member of it. The delegates so chosen, of which Thomas was one, nominated Brown as their can- didate. The committee-room in Oshawa was hired by the same association. How the committee was appointed does not appear. Thomas was a member of it. Brown was never at any of its meetings. There is no evidence he knew who were the members comprising it. That committee unquestionably did canvassing, and authorized it to be done, for Brown, and managed the election matters generally for their candidate. And if Brown can be identified with it, then agency by the committee and by Thomas also will be well established against Brown. But can Brown be identified with the comitiittee ? He did not appoint it ; was never at it ; did not know who composed it ; excepting the fact that he gave it authority to appoint his scrutineers, there is no evidence which shows that he knew there was such a body at all. In the Staleybridge case (1 O'M. & H. 66), Blackburn, J., speaks of a " com- mittee not selected by the respondent, but consisting of bond fide volunteers chosen by the voters of the district as persons in whom they had confidence, to be the head of their own department, and to act together ;" and again, at p. 72, he says : " But in such a case as this, when I am convinced that they were really bond fide volunteers, voters acting for themselves, not selected by the member or chosen by him at all, but really bona fide in a business- like manner, the voters of the district choosing sober and 1875.] SOUTH ONTARIO. 427 respectable men in whom they had confidence to be the head of their own department, and acting together, a messenger who is sent by one of them is not so directly connected with the candidate or any of his recognized agents as to make him responsible for his misconduct in oiFering a bribe." So also in the Westminster case (1 O'M- & H. 91), Martin, B., said : " It was proved that one Davis was a person who canvassed for a society called ' The Working-man's Conservative Association.' This society was assumed to be formed of working-men, but next to nothing was subscribed to it by working-men ; all the rest of the funds of the society came from a subscription of £60 from the respondent himself (he withdrew from the society, however, on becoming a candidate), two sub- scriptions from his partner, and various other sums from persons who subscribed, expecting this money to be ex- pended in promoting their political views. The funds of the society were spent in canvassing persons to vote for the respondent, but the evidence was that it was an inde- pendent agency, and that this body was acting on its own behalf." And on this statement of facts, the Judge said, " he should not hold Davis to be an agent." I am not prepared, upon the evidence and upon the state- ment of the law to which I have referred, to say that it was Brown's committee appointed by him, or adopted by him (excepting as to the scrutineers), or authorized by him to canvass for or to manage the election contest gene- rally for him. I have already said that the authority by Brown to this committee to name scrutineers for him was, in my opinion, a special authority to act in that particular matter and' for that occasion only, and that it cannot be extended to the adoption by him of the committee as his general agents for all purposes, If the committee were not of Brown's nomination or adoption — were not, in fact, his general agents deriving their authority from him as all agents must do, then it will be very difficult to make out that Thomas was an agent of Brown. He had nothing personally to do with 428 PROVINCIAL ELECTIONS. [A.D. Brown excepting that during the canvassing he saw Brown in Oshawa. He did not speak to Brown of canvassing, but he says he supposed that Brown knew that he (Thomas) was doing all he could for him in the election. If these circumstances be of such a nature that it can be inferred that Brown accepted Thomas from thenceforth as his agent, it is of no consequence whether the committee was appointed by or adopted by Brown or not. The statement of Thomas shows rather that he was a volun- teer and had no authority from Brown, or if he were acting under any authority, that he was acting for and under the committee. Now a candidate is not obliged, as a rule, to repudiate all voluntary acts of service. He may accept them at times without binding himself to all that such persons may do for him. As in the Staleyhridge case (1 O'Jil. & H. 70), where Blackburn, J., said : " The effect of that would be to say that whenever there were volunteers who were acting at all, and whose voluntary acting was not repudiated by the candidate or his agents — whenever, in fact, a person came forward and said, ' I will act for you and endeavor to assist you,' and the candi- date or his agent said, ' I am very much obliged to you, sir,' — any corrupt or improper act done by that volunteer, although unconnected with the member, would render the election void. To lay down such hard and fast rules as that would at times work great injustice." But Brown did not say to Thomas that he (Brown) was very much obliged to Thomas for anything he supposed Thomas was doing. The most that can be said is that if Brown did know Thomas was doing all he could for him, he did not object to it or repudiate his acts. But a candidate by mere non- interference does not necessarily bind himself by or to what another may be doinig for him ; that alone will not make the other his authorized agent. It must be remem- bered too that Thomas did not tell Brown he was doing all he could for him. He said that nothing of the kind was mentioned ; that all he said was that he supposed Brown did know that he (Thomas) was doing all he could 1875.] SOUTH ONTARIO. 429 for him. After much hesitation, and I must say to a con- siderable extent against my own primary impression, I think the agency o£ Thomas has not been established as against the respondent. Thomas was not the direct re- presentative of Brown. He was the agent of and for the committee, and if the agency of the committee had been proved, the agency of Thomas would have been proved too. But I am not satisfied the committee are shown to have been the general authorized agents of the respondent. As to Mr. Gibbs, the evidence as to him is : "I was working in Brown's interest in Oshawa. The committee there was divided into wards. I was interested in the Son's Hall ward particularly, but (in answer to the words of Mr Bethune's question) I had a roving commission over the rest of the town. We met at the committee- rooms. Oshawa was divided into sections ; each section had a committee of its own. I canvassed where I thought it would be of use. I had a voters' list. We raised no fund to pay expenses. I did not contribute one dollar. No arrangement that I am aware of to pay expenses. I was in Oshawa on polling day. There were some public meetings held in Oshawa. Brown was there. I am not aware of Brown's convassing a single man in Oshawa. No conversation with him about our canvassing. I said to Brown I had no doubt Oshawa would do its duty again. I have not the least doubt that Brown expected me to vote and to work for him too. I spent no money at the elec- tion but my own personal expenses, and they were very trifling, a glass of beer and a cigar once in a while; I hired no teams." Upon that evidence I cannot say there is agency established. There is the fact that Gibbs was one of the committee and was canvassing generally, but not by authority from Brown unless through the committee ; but there is still the same lack of evidence to prove that the committee was appointed by Brown, although it was unquestionably acting for him and in his interest. There is also the same lack of evidence that Brown personally 430 PEOVINCIAL ELECTIONS. [A.D. adopted or authorized Gibbs' individual acts. I therefore find the first question against the petitioner — that Thomas and Gibbs were not, according to the evidence, the author- ized agents, nor was either of them the authorized agent of the respondent at the time of or during the election. As to the second question, relating to the alleged agency of Billings and Clark or of either of them. The evidence as to Mr. Billings is: "I took part in the election; was on Brown's committee in the town, held over the Chronicle office. I was not an active member. I canvassed those I met. Saw Brown every day at that time ; saw him at the committee-room once or twice ; no other committee but that one in the place. I was a scrutineer at one of the polls here for Brown. There was whiskey at the poll that day. I took it for lunch. I gave the Deputy Return- ing Officer some of it that day at lunch time ; gave it to no one else." I think on this evidence that Mr. Billings, while acting in a special character as scrutineer, and under a special written authority from the respondent, cannot be said to have been in any way acting in his former capacity of a committee-man, or agent of or for the re- spondent; and when he gave the whiskey to the Deputy Returning Officer at lunch time, and took some as part of his own lunch, was doing an act in no way as a repre- sentative of Mr. Brown. If the authority to act as an objector-general in settling the voters' lists will not make such person the agent of the candidate, to fix him with bribery committed by such person — Wigan case (1 O'M. & H. 188) — the appointment of Mr. Billings to act as scruti- neer will not empower him to do an act of treating and to make the respondent answerable for it. Upon that occa- sion Mr. Billings' authority was limited to that especial duty, and he had no power whatever to assume to act beyond it : Bod.\oi% case (1 O'M. & H. 117) ; Sereford case (1 O'M & H. 194). The fact that he gave whiskey to the Deputy Returning Officer and not to any voter, shows that he did not assume to be acting as a committee-man 1875.] SOUTH ONTARIO. 431 or as a general agent of the respondent, if he can be said even to have been one. I am of opinion Mr. Billings was not an agent of Brown's who could bind him for the act of treating, if it be one. As to Clark's alleged agency. He said : " I attended Brown's committee meetings at the last election. They were held over the Chronicle office. I attended not over three times ; went there to help on Brown's election. I would like to see Brown elected. I don't remember asking any one to vote for Brown in the Orange lodge, or out of it. I went on the polling day for Jordan, a voter, to vote for Brown. I got him and brought him to vote. I was at Bandell's tavern that day in the kitchen. I took a drink there between 9 a.m. and 5 p.m. in Whitby. I had a glass at Oshawa too. I treated myself there and Jordan also. I paid for it; think it was whiskey we had. Jordan worked in Oshawa but lived in Whitby, and had a vote here. Fothergill volunteered to drive me there for Jordan, and we brought him up. There was no par- ticular part of the town given to me to canvass. I think I saw Brown once at the committee meeting. I know of no other body organized for Brown's election but this committee. Jordan went into the polling place, and 1 suppose he voted. He does not belong to my lodge; he is a B.oman Catholic." I think the Whitby committee is shown to have been Brown's committee, at which he attended several times. The members were to canvass generally for him, and Mr. Billings did do some of it. Clark was one of the committee, and he was authorized to canvass, and was not limited as to any particular part of the town to work in. With such authority he went to Oshawa for Jordan, a voter, and brought him up to Whitby to vote for Brown, and it is believed Jordan did vote, as he went into the poll for that purpose. While Clark had Jordan in his company at Oshawa, and before they left it for Whitby, where Jordan was to vote, he treated him- self and Jordan to a glass of whiskey each, and he paid for it. 432 PROVINCIAL ELECTIONS. [A.D. The third, fourth, and fifth questions it is unnecessary to say anything of, because if Thomas, Gibbs, and Billings were not the agents of the respondent, there were no cor- rupt practices to make him answerable for the acts proved against them. The sixth question, which relates to the treating by Clark, an authorized agent of the respondent, I must now dispose of. After much aonsideration, and of doubt too, I come, with some hesitation, to the conclusion that the treating by Clark, an authorized agent of the respondent, of th,e voter Jordan, was not an act within the terms of the 66th section of the Election Law of 1868, because the liquor was not so given by Clark to Jordan within the limits of the municipality, where the poll of the town of Whitby was held. I think that is the reading of that part of the section which it was said was applicable to the case. The whole section is as follows : " Every hotel, &c., shall be closed during the day appointed for polling in the wards or municipalities in which the polls are held, and no spirit- uous or fermented liquors or drinks shall be sold or given to any person within the limits of such municipality during the said period, under a penalty of $100 in every such case." If a poll is held in a city in one of two wards into which the city is divided for electoral purposes, the hotels, &c., in such ward in which the poll is held must be closed on the day of polling. They need not be closed in the other, but no liquor is to be sold or given throughout the whole of the city, that is, in the whole municipality, during that day. If an election is going on in a town and in another municipality forming one electoral divi- sion, the hotels, &c., in all the municipalities in which the polls are held must be closed, and no liquor is to be sold or given within the limits of such municipality during the said period. It is not within the limits of such munici- palities nor within the electoral division, nor within any such municipality, but within such municipality; and the question arises when there are more municipalities than one in the electoral division in which the polls are held, 1875.] SOUTH ONTARIO. 433 what municipality is it that is referred to by such munici- pality ? Will it apply to the giving of liquor in the munici- pality of Oshawa, although a poll for that election is held there, while the poll to be voted at is in the municipality of the town of Whitby, both municipalities being in the one electoral division of South Ontario ? If , it will apply to such a case as that, it will equally apply to liquor given in North Ontario or in the city of Toronto, in which places elections are going on when the vote is to be given in South Ontario, for which division an election is also going on upon the same day. I under- stand such municipality to be the municipality "in which the polls are held." Which poll is it that is referred to ? If a person were prosecuted for the penalty of $100 for violating this enactment, I think it would have to be held that such municipality applied to the municipality " in which the polls are held," and that these words being governed by the singular term of municipality, must mean the one in which the poll to be voted at is held. I am only speaking of the 66th section, which, it is said, applies to the fact only of selling or giving liquor^ and not to the intent with which it is given, as in the ordinary cases of treating, and I feel no disposition to extend the operation of a provision for which so compre- hensive a grasp is claimed to have been given, so long as I do not see that any such meaning must necessarily be attributed to it. I do not say positively that my construc- tion of the 66th section, as it respects Clark's treating Jordan at Oshawa while the poll at which the vote was given was in Whitby, is certainly right. I give it with some degree of diffidence. But I think it is correct, and I think it is the only sensible one which can be given to it. At the present, I determine that Clark, although an agent of the respondent, did not do an act in treating Jordan in Oshawa, while he voted in Whitby, which was contrary to the 66th section of the Election Law of 1868 ; and my answer to the second question, therefore, is against the petitioner, both as regards Mr. Billings and Mr. Clark, but upon different grounds, as before stated. 434 PROVINCIAL ELECTIONS. [A.D. The seventh qtiestion, which depends on whether Thomas was guilty o£ drinking at Hodson's, it is not necessary to answer, as I have not found the agency to be proved. If it had been proved I should have been obliged to have held, as in Clark's case, that the glass of brandy which Mr. Hodson gave to Mr. Thomas at Columbus, was not liquor given in the municipality in which the poll was held, so far as Thomas was concerned, who voted in Oshawa. If Thomas had not voted at all, I understand it would still be contended by the petitioner that if he had been an agent of the respondent, and the innkeeper gave to Thomas a glass of brandy at any place within the elec. toral division, or even beyond it, if a poll happened to be held there at the time, it would invalidate the election for this South Riding. I can see a way in which definiteness can be given to the words such municipality, before mentioned, where a person is to vote, because it may mean the municipality where the vote is given or to be given. But when the agent of a candidate, who has no vote, is given liquor in such municipality, I do not know to what municipality the reference is made. Nor do I know what municipality is referred to if the agent sell or give liquor to a person who is not a voter in the electoral district. I should say also that this act of drinking by Thomas was not an act of selling or giving liquor within the 66th section, but of receiving only. As to the act of giving liquor to voters and others by Thomas at Hallett's hotel, I am of opinion it has been proved, and if the agency by Thomas had also been proved, the giving of such liquor must, I fear, by the rigid construction of the 66th section, although there was no corrupt intent, have made void the election. But the agency was not proved, in my opinion, as before stated. The eighth question is, What is the effect of the re- spondent having had liquor sold or given to him at Ray's tavern in the town during the polling hours ? I think the evidence shows, as a fact, that he did get spirituous or fermented liquor during these hours at Ray's tavern. 1875.] SOUTH ONTARIO. 435 Samuel Ray says so. He says Brown called for a treat. He drank twice that day. No one drank with him. He has not paid for it yet. It is very clear, I think, that his buying or receiving drink is not selling or giving it within the 66th section. It is said that as there can be no sale ' or gift without a purchase or receipt, there can be no complete sale or gift until the other contemporary acts take place ; but that where the sale or gift is complete, the purchaser or receiver is as much an offender against that section of the Act as the seller or giver, because the Act does not say no person shall sell or give, but no liquor shall be sold or given, and it is sold or given when there is a purchaser or receiver, and in that case the purchaser or receiver is violating the Act by joining in the transaction of sale or gift as much as the actual seller or donor. A person cannot be both seller and buyer, and if the seller is subjected to a penalty, that, by no force of lan- guage or reasoning, can be made to extend to the buyer. Both may be specially made liable as both are equally culpable. The statute does not here speak of a seller or giver, but it says no liquor shall be sold or given to any person under a penalty. I do not think that includes the person who buys or receives in the penalty even without the words to any person ; I think I may say I have no doubt that it is the seller or giver only who is liable, for he is the person who makes the sale or gift ; ±he other cannot make it, although he is a receiving party to per- fect it. I fully adopt the opinion of Draper, 0. J. A., as given in the West Toronto case {ante p. 179), decided a few days ago. If a statute declared that no promissory note should be made without a stamp being attached to it under a penalty, would the payee be liable for the penalty if the stamp were not attached 1 I think he would not be. This question I also decide against the petitioner. If this enactment as applied to Brown, the candidate himself, in taking a glass of liqilor as he did in Ray's tavern, is enforced, as it is said it must be, then, as the 29 436 PEOVINCIAL ELECTIONS. [A.D. candidate himself at his own expense drank a glass of whiskey or beer, he must be personally guilty of a cor- rupt practice, and besides the loss of his seat and a pe- cuniary penalty, he becomes incapacitated for eight years from being elected again. Such results must make me careful how a statute is expounded which leads to such highly penal consequences. The more comprehensive the provision against drink- ing and treating at such a time can be made, the better it must be for electoral purposes and for all persons con- cerned ; but it cannot be made so absolute or unqualified as it now reads, and as it is said it must be construed. So far as this case has now gone, I must decide the whole of it in favor of the respondent. I have had grave doubts, from which I cannot say I am yet relieved, with respect to the agency of Thomas and Mr. Gibbs, although with respect to Mr. Gibbs it may not be of any moment whether he was an agent or not, for I do not think his treating himself was against the Act, as I have before stated, and I have very great doubt whether his treating the two commercial travellers, strangers in the division and not voters, can be an act prohibited by the 66th sec- tion just construed ; and besides, there was no evidence given of the kind of liquor which was taken by these two strangers ; there was nothing to show it was spirituous or fermented liquor ; and I do not feel disposed to supply such a defect of evidence, even if it could be done by a fuller examination under the circumstances. With respect to Thomas, he I think did, as I have before stated, violate the law, and according to the effect of the 66th section if he were an agent of the respondent ; but I think he was not, although he was an agent of the committee, but the committee were not the agents of Brown. Upon that point, and also as to the effect of Clark (who I find was an agent of the respondent) treat- ing Jordan outside the municipality in which Jordan voted, I entertain, as I have already said, a very consider- able degree of doubt, and I shall of course be very glad if 1875.] SOUTH ONTARIO. 437 the petitioner will carry the matter, by way of review, to the Court appointed to reconsider such questions for their more deliberate judgment. The costs of this part of the case must abide the event of the triaj. I need not say that I shall be obliged to report to the Speaker, if I have to report at all, that the evidence shows there has been a common and notorious violation of the Act by the keeping open of inns, and taverns, and other places where spirituous liquors are usually sold, and selling to all persons during the prohibited hours of the elec'tion day, and during nearly the whole of that day, and that some measures should be taken against all those who have so shamefully defied the law. I feel obliged to say that I regret to find that the respondent should have been in any tavern during these hours, and that he should have drank there, or that he should have been there at a time when others were improperly drinking, and that other persons of influence and good position should have been in these places at !3uch a time, or for a purpose which they knew was against the law, and when their example was likely to be an encouragement to others of a different station from themselves. [Mr. Justice Wilson, after the delivery of judgment, added the following memorandum] : I should perhaps have stated more clearly the grounds on which committees, discharging the usual functions of election committees, should be considered to be or not to be the agents of the candidate in whose interest they are acting, because I am not sure that my first impression on the subject was not the more correct one, that a com- mittee known by the candidate to be acting for him, although neither appointed nor accepted by him, should, as a rule, be held to be the committee of the candidate, for whose acts he is responsible, because they are openly acting for him, and he is receiving the benefit of their services and exertions. The two cases to which I have specially referred in the judgment delivered, adopt the view very strongly of voluntary committees and agents 438 PROVINCIAL ELECTIONS. [A.D. being so entirely independent of the candidate that he is not in any way responsible for their conduct, and no doubt some freedom must be afForded in such cases for voluntary independent operations, and for the acts of the persons so aiding in the election, which should not be binding on the candidate. While the Tamiton case (21 L. T. N. S. 169) is a decision very much the other way: that committees and persons so forwarding the general purpose of the contest have the power of binding the candidate they are assisting, unless he, with a knowledge of their proceedings, repudiates their work. There is much force in this view, and I confess it more nearly represents my own original impression, before referred to. It may not, however, be entitled to pre- vail so absolutely, as stated in the last mentioned case. The candidate cannot be required, in every case, to sup- press all help from every voluntary association, and to repudiate every effort of individual enterprize. The fact of the candidate having left blank appointments of scruti- neers to be filled up by them for him, is a strong ground for holding a candidate to have adopted the committee as his representatives and, I might say, as his agents. Pro- bably I might have so decided with more leisure for consideration, and then the question as to Thomas' agency would have depended upon what he did at Hallett's tavern • and the effect of it, as to which I expressed an opinion at the time which I think to be correct. The petitioner appealed from the decision of Mr. Justice Wilson to the Court of Appeal — setting out among others the following ground of appeal : "That the keeper of the hotel called 'Ray's hotel,' in the town of Whitby, was guilty of a corrupt practice in giving spirituous and fermented liquors at his tavern on the day of polling, and during the hours appointed for polling, to divers persons, and that the respondent was present when liquor was so given as aforesaid, and con- sented thereto." 1875.] SOUTH ONTARIO. 439 The order for particulars o£ corrupt practices provided that the petitioner should deliver within a limited time " full particulars in writing, so far as known to the peti- tioner, of the alleged corrupt practices in the said petition referred to, with names and additions, dates and places " (and other specified particulars in detail) ; and the order concluded as follows : " And in default the petitioner shall be precluded from giving evidence of such particulars on the trial thereof." In the particulars delivered pursuant to the order, the charge was thus stated : " The respondent on the said day of polling, and during the hours appointed for polling, gave spirituous and fermented liquor, and drank with divers electors, to the petitioner unknown, at Ray's hotel in Whitby." Mr. Bethune for petitioner. Mr. Hector Cameron, Q.C, for respondent. Counsel for the respondent objected that the charge involved in the first ground of appeal was not in the par- ticulars ; that it was urged now for the first time ; and that, by the order for particulars, the petitioner was precluded from raising it. The Court declined to entertain the first ground of appeal, as the allegation therein contained differad in a material point from the charge specified against the re- spondent in the particulars ; that the particulars could not now be amended ; and because the charge had not been inquired into nor adjudicated upon by the learned Judge at the trial of the petition. Judgment in appeal was delivered on the 22nd Janu- ary, 1876, as follows : Draper, C. J. A. — I have doubted the correctness of the decision in Clark's case, and am not sorry to find that the learned Judge had also a considerable degree of doubt, as I should not, unjess upon the clearest conviction, depart from his deliberate opinion. 440 PROVINCIAL ELECTIONS. [A.D. The facts seem to be as follows : One Jordan was a voter, whose residence was in Whitby, and who was a . voter in that municipality. During the time of the election he was working in Oshawa — both places, though separate municipalities, being within the electoral division of South Ontario. Clark, whose agency appears to be suiEciently proved, went to Oshawa on the polling day to bring Jordan up to vote at Whitby, and treated him in a hotel at Oshawa to a glass of whiskey. This was held not to be a violation of the 66th section, because the liquor was not given by Clark to Jordan within the municipality in which the poll for the town of Whitby was held. No question was asked as to the hour when the treating took place — no doubt suggested as to its being within the hours appointed for polling, i.e., from nine a.m. to five p.m. Considering that to make this treating a corrupt practice, which, if committed by an agent without the actual knowledge and consent of the candidate, would avoid the election, it cannot have been overlooked at the trial ; and as the evidence shows that Clark drove from Whitby to Oshawa to get Jordan ; that Clark had told him when they got to his (Jordan's) own place that he could stop there and go down after dinner and vote ; and that no point has been suggested on either side that the treat was or was not within the hours appointed for polling, I shall assume it to have been so. I have already expressed my opinion upon this section in the Lincoln case {ante p. 391), but I avail myself of this opportunity to add a few observations. So far as keeping peace and good order at elections is concerned, it can make little difference, as between two coterminous wafds or municipalities, in which of them persons who commit a breach of the peace drank the liquor which overcame their discretion and influenced their disorderly proceedings. The distance between mu- nicipalities in which polls are being held at the same time may be such as to render quite, unnecessary any provision against dangers to arise from the prohibited 1875.] SOUTH ONTARIO. 441 cause, and ought to repel the idea that the Legislature had the prevention of any such danger in their contem- plation. But it would be little if at all less absurd to hold that treating voters in municipality A — who, being excited to lawlessness and influenced by liquor, went into the adjoining municipality B, where they created a disturbance — would not be within the mischief intended to be prevented by the Act, as if the tavern in which the liquor was given to them was in municipality B. Further ; I see nothing in sec. 66 which makes the fact that the person to whom liquor is given is or is not a voter an element in the matter prohibited, that is, selling or giving to any person within the limits of such munici- pality. There is no necessity that a man should be a voter to make selling or giving liquor to him on the polling day an offence subject to penalty. In Jordan's case, if he had not been a voter, giving liquor to him in a tavern in Oshawa would have been a violation of the law, assuming as I do that the day in question was appointed for holding the polls in the municipality in which the tavern stood. I think we surmount most of the difficulties suggested by holding that section 66 is confined to the regulation of hotels, taverns and shops in which liquors are ordinarily sold. On the day appointed for polling they must be kept closed under a penalty. No liquor must be sold or given to any person in any such hptel, &c., on the polling day. The words, "within the limits of such municipality" may perhaps be redundant, but the word such confines the construction to the municipalities mentioned in the former part of the section, which may, I think, be properly treated as part of the description of the hotels, &c., which are to be kept closed, namely, hotels, &c., situate in "the mu- nicipalities in which the polls are held." Adopting this conclusion, I am of opinion that Olark was an agent of the respqjident, and did, in violation of section 66, give spirituous liquors to one Jordan in a tavern in Oshawa, which was a municipality in which a 442 PROVINCIA.L ELECTIONS. [A.D. poll was held on that day appointed for the polling and within the polling hours, and that the election was there- fore void and should be set aside. My brothers consider section 66 of the Act of 1868 does not affect any person except the keeper of the hotel, tavern or shop, who is subjected to a penalty in three cases : 1. Not keeping the hotel, &c., closed. 2. Selling liquor in his tavern, &c., during the polling day. 3. Giving liquor in his tavern, &c., during the polling day. The whole three are made corrupt practices if com- mitted during the hours appointed for polling. I hope the Legislature will remove the doubts by a clear state- ment. Burton, J. A. — The three charges, assuming that in all or some of them the agency is established, are charges of giving liquor in a tavern by an agent within the hours appointed for polling, and involve the necessity of our placing a construction upon the language of the much- debated 66th section of the Election Law of 1868. We had occasion to consider this section before in the North Wentworth {ante p. 343) and North Grey cases {ante p. 362), and then held that there having been a clear violation of the section by the hotel-keeper, which was made a corrupt practice by the Act of 1873, and that corrupt practice having been committed with the know- ledge and consent of the candidate in each case, there was no alternative but to declare the election void and the candidates disqualified. But it is contended on the part of the petitioner that the latter part of this section is general in its terms, and is not to be restricted to the parties aimed at or intended to be referred to in the first part, viz., the keeper of any hotel, tavern or shop in which spirituous or fermented liquors or drinks are ordinarily sold, but extends to any person within the municipality. 1875.] SOUTH ONTARIO. 443 and that the penalty imposed is confined to the offence of selling or giving referred to in that portion of the section. The clause in question, with several others having for their object the preservation of peace and good order at elections, is to be found in the 22nd Vic, cap. 82. That to which this section corresponds was consolidated in the Consolidated Statutes of Canada, cap. 6, as section 81, and read thus : " Every hotel, tavern or shop in which spirit- uous or fermented liquors or drinks are sold, shall be closed during the two days appointed for polling in the wards or municipalities in which the polls are held, in the same manner as it should be on Sunday during divine service, and no spirituous or fermented liquors or drinks shall be sold or given during the said period, under a penalty of $100 against the keeper thereof if he neglects to close it, and under a like penalty if he sells or gives any spirit- uous liquors or drinks, as aforesaid." So far there would have been no room for doubt, but in re-enacting this section in the Election Law of 1868, the words relating to the period of divine service are omitted ; the words " to any person within the municipality " are added after " given," and instead of affixing a distinct pen- alty upon the keeper for neglecting to close, and another penalty upon him for selling or giving, the clause con- cludes, " under a penalty of $100 in every such case." If these words have the effect of extending the penalty to each case of omitting to close a tavern, hotel or shop, as well as to each case of selling or giving, there would be no good reason that a wider signification should be given to them when read in connection with the latter part of the section than the former. The 'party liable to the pen- alty for omitting to close must be the keeper. Why should they be construed as extending to every person when read in connection with the remainder of the section ? ' My own view is that the new enactment is in substance the same as the former one. It is impossible to believe that if the Legislature had intended to effect so sweeping a change, they would have left it to be inferred, or as a 444 PROVINCIAL ELECTIONS. [A.B question for argument, instead of making it clear by the insertion of a few words. It would be such a mistake that, in the language of Mr. Baron Bramwell, it would be ' an imputation upon that body to suppose it. It is true, that for omitting to close the hotels there could be only the one penalty— the offence being complete whether kept open for one hour or for the whole day — whilst each separate sale or gift would, I presume, con- stitute a separate offence. Brooke qui tam v. Milliken (3 T. R.'509). I can see no good reason for holding that the Legisla- ture intended to confine the penalty to a portion only of the offences enumerated in the 66th section, or for holding, as suggested by Mr. Justice Gwynne, that the whole, viz., the keeping open and the sale, should be regarded as but one . offence, complete only in the event of spirituous liquors being sold or given. In Newman v. Bendyshe (10 A. & E. 11), a conviction for keeping open the house, for selling beer, and for suffering the same to be drank and consumed in the house, was held bad, as including three several offences in one conviction, for which the defendant might have been distinctly convicted. It is said that if it had been intended to limit section 66 to hotel and shop keepers it would have been easy to have so expressed it. To my mind it is so expressed — the first part of the section overriding and being the key to the whole. But if there is any doubt or ambi- guity, I have already intimated my opinion that in the construction of statutes it is not to be presumed that the Legislature intended to make any innovation upon the common law further than the case absolutely requires. The law rather infers that our Act does not intend to make any alteration other than what is specified, and beside what has been plainly pronounced ; for if the Parliament had had that design^ it is naturally said they would have expressed it. It is f urtner argued, however, that the word " give " indicates an intention to extend the Act to other parties beyond the keepers of hotels, but it must be borne . 1875.] SOUTH ONTARIO. 445 in mind that that word is to be found in the original Act, where the penalty was unquestionably restricted to the keeper of the hotel, &c., and, as Mr. Justice Gwynne sug- gests in the Lincoln case {ante p. 391), was probably added to prevent the possibility of the party proceeded against for the penalty evading the statute by setting up as a defence that he did not sell, but gave, the drinks. But there is an additional reason for concluding that the Legislature did not intend to effect so sweeping a change under a section which purports in its introductory clauses to deal only with hotels and shops wherS spirit- uous or fermented liquors are sold. In such a case we may fairly refer to and examine other parts of the Act for the purpose of ascertaining the intent of the legis- lature. On referring, then, to the 61st section, we find that the candidate, or any other person, is authorized to furnish drink or any other entertainment to any meeting of electors, even on the polling day, at his or their usual place of residence. Here, then, we have a clause in the same statute expressly permitting what another section, in as express terms, prohibits, if the construction con- tended for by the petitioner be the correct one. Now that the elections are all held in one day, a literal compliance with the first portion of the 66th section would be impracticable, there being no such exception as is to be found in the English Acts in favor of the recep- tion of travellers, and in the amendment to the Act that has just been introduced, I see that it has been omitted ; but whatever may be meant by closing a hotel on the day of polling, it is directed, and the failure to do so is made a distinct offence. I will refer only to one other matter which confirms me in the opinion that in the construction of this clause we should give no further effect to the words than they clearly and unmistakably bear, which is this : The Legis- lature, in what is popularly known as the Dunkin Act, has declared that no prohibitory law shall be passed by any municipal council without the consent of the ratepayers. 446 PROVINCIAL ELECTIONS. [A.D. and, whilst declining to pass such a law themselves, have left it in the power of the ratepayers to make such an enactment. Are we to suppose that they intended infer- entially to pass such a law, even for a limited period, when they re-enacted a clause which, when first passed, applied only to hotel and shop keepers selling spirituous and fermented liquors ? For these reasons I am of opinion that the person, and the only person, liable to the penalties imposed by the Election Law of 1868 is the hotel or shop keeper, or person acting in that capacity ; that he, and he alone, is the per- son who is guilty of a violation of the Act, by gelling or giving liquors, and so liable under the Act of 1873 to the additional penalties imposed by it if within polling hours ; and whilst the investigation of this case has more fully confirmed me in the conviction of the correctness of the decision of the Court, which declared that a violation by the hotel-keeper of this section, with the knowledge and consent of the candidate, avoided the election and entailed the penal consequences affixed' by the statute, I am not prepared to hold that the agent of the candidate is guilty of a corrupt practice in treating at a hotel within the prohibited hours. To do so would be in efiect to hold that there could be two penalties for the same offence, when the statute has imposed only one. My conclusion, therefore, is that there has been no vio- lation of the 66th section within the meaning of the Act of 1873. Patterson, J. A. — The grounds of appeal charge as vio- lations of section 66 the giving of liquor to various persons by agents of the candidate during the hours of polling, the persons in each case being treated by the agents at a tavern; the agents not being the tavern-keepers, but merely casual guests. In this respect the three charges are precisely alike. The questions peculiar to each case are those touching the facts of the agency and the places where the drinking took place. 1875.] SOUTH ONTAEIO. 447 It is contended by the appellant that under section 66 the giving of spirituous or fermented liquors ly any person to any other person during the day appointed for polling is made penal, and, by the Act of 1873, is a corrupt prac- tice. On the other side, it is insisted that the section applies only to those who sell or give in the character of keepers of a hotel, tavern or shop in which spirituous or other fermented liquors or drinks are ordinarily sold. It seems to me that we must either construe the clause liter- ally, and give their full effect to the words " no spirituous or fermented liquors or drinks shall be sold to any person ;" or we must read the words with which the clause com- mences as indicating the class to which the whole clause applies, and read the clause as if worded to the effect that " no keeper of a hotel, tavern or shop in which spirit- uous or fermented liquors or drinks are ordinarily sold, shall open his hotel, &c., during the day appointed for polling ; nor sell or give to any person, &c." This was evidently the effect of the clause as it stood in C. S. Can., cap. 6, sec. 81, where it forms, as it does in the Act of 1868, one of the provisions for " keeping the peace and good order at elections." It is not difficult to suggest reasons why, as a matter of policy, it may be desirable to extend the prohibition agaiust distributing liquor on polling days beyond the ordinary dealer in liquors. We have, however, to inquire whether that has been done, and if so, whether this ex- tension is in any way limited, or whether it reaches all persons in the municipality without regard to the place where liquor may be given, or the purpose for which it may be required. The consequences which would follow from holding the restriction to be entirely unlimited have been well pointed out by the learned Judge below, and they are of a character so startling that it is impossible to suppose they could have been in the contemplation of the Legislature. And, besides this, the clause, so construed, would apparently be in conflict with section 61, which allows a candidate to 448 PROVINCIAL ELECTIONS. [A.D. entertain a meeting of electors at his own house on the polling day. I believe we are all agreed that this unlimited eftect cannot be given to the section ; but the learned Chief Jus- tice, while he construes the prohibition as extending to all persons, considers that the law is only violated when the liquor is sold or given in a hotel, tavern or shop in which liquors are ordinarily sold. I have not been'able to see in the clause itself or in the context anything which im- poses this limitation. I cannot find room for any middle course. I think these two alternatives only are presented : either ihe keeper of the house alone is aimed at, or the prohibition applies against all persons and to all places within the municipality. The true view of the enactment, in my judgnjent, is that it is simply a re-enactment of the former law, either without modification or with no modification that points to any more extensive operation; and I think this appears whether we closely examine the clause itself or look else- where, as we may do in vain, for indications of an inten- tion to change the law. All the other clauses in this division of the statute are verbatim re-enactments of the former statute, except that the penalties, while the old amounts are retained, are im- posed in terms adopted to avoid any appearance of legis- lating as to criminal law. Three changes are made in the section. The first change is the omission of the words which directed that the house should be closed on polling days " in the same manner as it should be on Sunday during divine service " — an omis- sion apparently made because the omitted words were not applicable to any law in Ontario, but which has no bear- ing on the argument now in hand. The second is the insertion of the words which I quote in italics in the passage, " and no spirituous or fermented liquors or drinks shall be sold or given to any person within the limits of such municipality during the said period." 1875.] SOUTH ONTARIO. 449 The clause as it stood was, in its terms, general enough to forbid the selling or giving of liquor anywhere in the municipality; but I have no idea that either the most literal or the most fanciful expounder would have so con- strued it. Where was the necessity for the words now inserted ? To my mind the reason is plain. The whole section as it stood admittedly applied only to keepers of hotels, &c. The danger was that this part of the section might be read as forbidding only selling or giving in their houses, but not the dispensing of liquor outside of their four walls. That doubt is set at rest, and the present section is either simply declaratory of the law as it stood, or modifies it only so far as to make evasion of its intention more difficult, without, by force of the insertion of the particular words I am now discussing, otherwise extend- ing its effect. The third shange is in the penal part. It formerly read, " under a penalty of $100 against the keeper thereof if he neglects to close it, and under a like penalty if he sells or gives any spirituous or fermented liquors or drinks aforesaid." It now reads, " under a penalty of $100 in every such case." The words themselves appear to be only a statement in a general and comprehensive form of what was before expressed in more detail. The argument, however, is that because " the keeper thereof" is not now mentioned, an intention is shown not to confine the pro- hibition as it was before. Let us see where this argument leads to. We have to take the section either by itself, or we have to look at it in connection with and as re-enact- ing the other. Reading it by itself, and taking two pro- visions separately, we have first this enactment : " Every hotel, &c., shall be closed during the day appointed for polling, in the wards or municipalities in which the polls are held . . under a penalty of $100." Whose duty does this make it to close the house? I apprehend there would be a serious difficulty in enforcing the penalty for neglect- ing a statutory duty, unless the statute made it the duty of some particular person. As far as the clause expresses 450 PKOVINCIAL ELECTIONS. [A.D. it, the duty may be intended to be cast upon the owner of the house, or the holder of the license, or the actual manager of the business, or the reeve or constable of the township. The answer, of course, will be that there must be a reason- able construction adopted, and that when it is said that an establishment is to be closed, that is equivalent to saying it shall not be opened, and that the person who could other- wise open it is the person intended. It is not my present object to analyse this contention minutely. It might appear on close reasoning that an enactment that a house shall "be closed" is not equivalent to one that it shall "not be opened " or shall be " kept closed;" and it might not be found so clear that if a servant opened the house in the absence of his master, the master would be liable to the penalty. My object is, in combating the contention that by the omission of the words " against the keeper thereof,'' the Legislature have relied on a strict construction of the language instead of using an express declaration, to ex- tend to other words an effect which they had not before, to point out that by strictly construing the section, the first part of it would be inoperative, and that if it could be made operative at all, it would be by applying to it a rule of construction depending partly on presumption, and liable to lead to a wrong conclusion. We get rid of all the difficulty by looking first at the law as it was, where we find there was no room for doubt. We then inquire, has the law been changed ? and we find that the Province of Ontario having become separated from Quebec, its Legislature having found it necessary or desirable to re-enact the law relating to elections, did re-enact it, making such changes as the changed constitu- tion required ; but indicating no intention to change the law except where that is done in express terms, as, e. g., , in adopting the law then in force in England. The pass- age of the Act in itself does not, under the circumstances, imply an intention to change the law, or to do more than to adapt it to the changed political circumstances of the country. No obstacle exists to prevent the section in 1875.] SOUTH ONTARIO. 451 question being regarded as meant to be and as being a re- enactment, with only such modifications as I have noticed. When we refer for explanation to the law as it was, we find no difficulty in reading the words, "under a penalty in every such case," as the same in efiect as "under a penalty against the keeper thereof, if he neglects to close , it, and under a like penalty if he sells or gives." We have either to take the new section by itself, when we find that one half of it is inoperative, or if operative at all, is only so by some nicety of construction which can never be other than doubtful, or we have to. take it as a re-enactment of the old law, when the whole is operative. I do not think the word " given " as it occurs in the phrase " sold or given " adds much weight to the conten- tion for the more extended construction, as to have prohibited selling only would have been to invite evasion by almost suggesting that the tavern-keeper should dis- tribute the liquor on the pretence of giving it. I have already said that while satisfied that the sec- tion cannot be read as forbidding the giving of the liquor iy any one, without restriction as to place or purpose, I am not able to perceive any ground, satisfactory to myself, for holding that the restriction may extend to persons, other than the keeper of the house or person acting in that capacity, who give liquor in the house itself, when it would not touch them if they gave it else- where in the municipality, as in the charges now before us, which are ordinary cases of treating, the person charged as giving did so merely by buying from the bar- keeper, and then by his own hand or the hand of the bar-keeper giving it to others. We should have to impute to the Legislature the inten- tion to convey by the one expression two separate man- dates, one of which pre-supposes disobedience to the other. As far as it affects the tavern-keeper, the enactment is that he is neither to open his house nor to sell or give liquor on the polling day. If he obeys this command, no other person can possibly give, on that day, any of 30 452 PROVINCIAL ELECTIONS. [A.D. the tavern-keeper's liquors. He is to retain his whole stock safely in his own possession. It would seem a faulty rule of construction on which we should hold that the Legislature, in contemplation of the tavern-keeper disobeying the law by parting with liquor, meant to pro- vide against such disobedience by the further command that if he did so disobey, the recipient of the liquor must not give it away again under a penalty, and particularly as no penalty is attached to the act of receiving it. If such an intention existed it should and doubtless would have been somewhat more clearly expressed. The only other case in which it can be suggested that giving at a tavern, etc., is the act intended, is the case of persons bringing liquor from elsewhere to the tavern and giving it away. This is too remote a possibility to require more than a bare mention, and no good reason can be suggested why a giving of that nature should not be an oflFence wherever committed, as well as when committed in a tavern or place where liquor is ordinarily sold. In my view, therefore, the agents, Thomas, Clark and Gibbs, did not violate sec. 66 by treating at taverns on the polling day, The same remark applies to a personal charge against the candidate for treating at Ray's tavern, which seems to have been urged below, but which was not renewed before us as one of the grounds of appeal. It is not necessary for the disposal of the case to dis- pose of the other questions discussed in the judgment before us, but on two of those questions it is proper that we should express our opinion. [The learned Judge then referred to the agency of Thomas, and agreed with the later opinion of Mr. Justice Wilson, that he was an agent. He then proceeded :] The other question relates to sec. 66 of the Act of 1868. One Clark, an agent of the candidate, had treated one Jordan, a voter whose polling place was in Whitby, at a tavern in Oshawa, during the hours of polling. The learned Judge held that this was not an illegal act within 1875.] SOUTH ONTAEIO. 453 sec. 66, " because the liquor was not given by Clark to Jordan within the limits of the municipality where the poll of the town of Whitby was held." I think this is a mistaken view of the section, and that the mistake has arisen from regarding the prohibition as aimed at the treating of voters; and with that idea, reading the words "municipalities in which the polls are held" as meaning the municipalities in which are held the polls at which the voters who are treated are entitled to vote. I think it is quite plain, not only that the object of the en- actment, viz., to preserve peace and good order at elections, would be very inefficiently attained if open house might be kept for all who were not voters of the particular ward or municipality, but that nothing in the section points to that construction. An election is proceeding for the riding : Whitby and Oshawa are two separate municipali- ties in the riding, and in each a poll is held during the same hours. A tavern-keeper who sells or gives liquor in either municipality is plainly violating sec, 66, whether he gives it to voters of that municipality or to voters of the other municipality, or to persons who are not voters. The prohibition is against selling or giving within the limits of a municipality in which a poll is being held, without any regard to the persons to whom the liquor is sold or given. The decision in Clark's case is therefore upheld — not upon the ground on which the learned Judge rested it, but upon the other ground which I have discussed, viz., that the corrupt act was committed, not by Clark, but by the person who sold him the liquor. The appeal should be dismissed with costs. . Moss, J. A. — The learned Judge below, upon a review of the evidence and an examination of the authorities, held, although with much hesitation, that neither Thomas nor Gibbs was an agent by whose treating in taverns the respondent could be affected ; but he was manifestly of opinion that if the agency had been established, their conduct in giving treats, although not shown to be for 454 PROVINCIAL ELECTIONS. [A.D. the purpose of influencing votes, would have avoided the election. On further consideration he seems to have inclined to. the view that agency had been established in the ease of Thomas ; and I must say that that appears to me to be the proper conclusion from the evidence. In the case of Clark he decided that agency had been proved, but he thought that his treating was not a corrupt practice within the meaning of section 66, for reasons to which I shall refer presently. But it is broadly argued by the learned counsel for the respondent that, even assuming these persons to have been agents, there was no corrupt practice, because section 66 of the Act of 1868 is only intended to deal with the keepers of hotels, taverns and shops in which spirituous or fermented liquors are ordin- arily sold, and to prohibit the selling or giving of liquor by persons answering that description. If that be the true interpretation of the section, it becomes immaterial to discuss the evidence of agency. On the other hand, it is contended by the counsel for the appellant that the" section is divisible ; that while the first part relates to keepers of taverns, &c., alone, the second extends to and renders penal the giving of liquor by any person to any person in the electoral division during polling day ; and that consequently, if given by an agent of the candidate during the polling hours, the election is avoided by force of sections 1 and 3 of the Act of 1873 (36 Vic, cap. 2). The words used are certainly of extreme generality. Read literally they are sufficient to support the appellant's contention. But there are numerous cases in which lan- guage quite as wide and terms quite as general have been restricted by a consideration of the previous state of the law, the express object of the statute, and other circum- stances which the Courts have held fitting to be regarded in arriving at the intent of the Legislature. [The learned Judge here cited and reviewed the following authorities : Hawkins v. Gathercole (6 D. McN. & G. 1) ; Lord Auckland V. Westminster Local Board of Works (L. R 7 Chy. 597) ; Sedgwick on Statutory and Constitutional Law, 234]. 1875.] SOUTH ONTARIO. 455 These references are authority sufficient, not only for , the proposition that we should regard the terms of the enactment for which section 66 was substituted, but that we should presume that the Legislature only intended to change the law to the extent that it has clearly and posi- tively expressed. The 66th section of the statute of 1868 was substituted for the 81st section of the Consolidated Statutes of Canada, cap. 6. In each statute the section forms one of a group collected under the heading of " keeping the peace and good order at elections." Some doubt has been expressed whether it is allowable to refer to this heading upon a question of the proper construction of one of the sections coming under it. It seems to me that it can be taken into account for the purpose of deter- mining the immediate and special object which the Legis- lature had in view while passing these sections, and there is no doubt that the nature of this object may have an important bearing upon the interpretation to be given to language of a general character. In Bryan v. Child (5 Ex. 368), Pollock, C. B., refers to the mode then " recently introduced in statutes, namely, by having certain clauses connected by a sort of preamble to each separate class of clauses, which preamble may really operate as part of the statute :" and he decides that such preamble must be read in order to ascertain the meaning of the Legislature. The so-called preamble was this : " And with respect to transactions with the bankrupt, &c., be it en- acted." Our statute may fairly be read as if expressed thus : " For the purpose of keeping the peace and good order at elections, be it enacted," &c. In BoUnson v. Gol- lingwood (17 C. B. N. S. 777), the word "trusts," used with- out any limitation in a statute, was construed in the light of the preamble to mean " trusts in favor of the grantor." It appears, then, that the object which the Legislature had in view when it passed the sections in the Consoli- dated Statute was the maintenance of peace and good order ; and that the object was still the same when the corresponding sections of the statute of 1868 were enacted. 456 PROVINCIAL ELECTIONS. [A.D. According to the principles o£ construction to which I have referred, we ought not to assume that the Legislature, which in the associate clauses was re-enacting the former statute, contemplated such a wide extension of the law as is contended for by the appellant, unless it has used language clearly expressing that purpose. How wide that extension would be is manifest from an examination of the 81st section. There is no room for doubt as to the description of persons who were affected by its provisions. It enacts that every hotel shall be closed, and no spiritu- ous or fermented liquors shall be sold or given during the said period, under a penalty of $100 against the keeper thereof, if he neglects to close it, and under a like penalty if he sells or gives liquor. This language is free from all ambiguity. The persons subjected to a penalty for giving or selling liquor are the keepers of the houses directed to be kept closed. In the statute of 1868 the phraseology is — except in some particulars immaterial to the present argument — precisely the same until the part relating to the penalty is reached. The injunction to keep closed and the prohibition against such a gift are expressed in the same terms in both statutes. If, then, the later statute, passed with the same object as the earlier, and coinciding with it in the corresponding sections directed to this object, is to be extended from the comparatively narrow circle of keepers of such houses to the general body of the public, it is simply because in the part of the section relating to the penalty there is no definition of the per- sons who are rendered liable. I entertain little doubt that the draftsman who penned the 66th section thought that in substituting the words, "under a penalty of $100 in every such case," for the definite language of the 81st section, he was expressing the same thing in a more concise form. It may be that in aiming at a little originality by this consideration, he has fallen into ob- scurity ; but such things have been known to occur in Acts prepared by skilful and experienced hands. 1875.] SOUTH ONTARIO. 457 Regarding the 66tli section as it stands, it is necessary to supply by construction the designation of persons whose duty it is to close the houses. The reasonable construc- tion is that these persons are the keepers, of the houses. If the words "by the keeper of such house " must be in- troduced into the first clause of the section, it appears to me that they should equally be introduced into the second clause. For my own part, I prefer that construction to one that virtually seeks to introduce intft the same clause the words "by any person." The inconveniences of such a construction, some of which have been graphically described by the learned Judge below, are in themselves sufficient to induce the Court to pause before adopting it. I do not repeat the other constructions which have been presented by my brothers Burton and Patterson, in con- firmation of this view, but content myself with saying that if this be the correct view to take of the section, it follows that it is only violated by the giving of liquor, when the giver is a keeper of one of the houses directed to be closed ; and that no agent of the candidate will, by giving liquor to any person within the prohibited hours, be guilty of a corrupt practice ^voiding the election, unless he is the keeper of such a house. I only desire to add that I entirely concur in the remarks of my brother Patterson upon Clark's case. If his treat- ing Jordan at Whitby, where Jordan was entitled to vote and did vote, would have avoided the election, that would have been the result of the treat he actually gave him at Oshawa. The ofience does not depend upon the character of the person treated. It does not matter whether he is or is not entitled to vote at any particular place, or whether he is entitled to vote at all. In my opinion the appeal should be dismissed with costs. Appeal dismissed with costs, (a) (a) No report of this case was sent to the Speaker. 458 PROVINCIAL ELECTIONS. [A.D. MUSKOKA. Before Mr. Justice Wilson. Braoebkidgb, 20tli to SSrd July, arid 17th September, 1875. Before the Court of Appeal. Toronto, 16th December, 1876, and 2Znd January, 1876. Andrew Starratt, Petitioner, v. John C. Miller, Sespondent. Corrupt practice — Each charge a separate indictment — Cumulative evidence — General promise by ministerial candidate — Bribery or undue in- fluence.— 32 Vic, c. 21, s. 72. t The respondent was charged with several acts of corrupt practice. Each separate charge was supported by the evidence of one witness, and was denied or explained by the respondent. The learned Judge trying the petition held, that if each case stood by itself, oath against oath, and each witness equally credible, and their being no collateral circum- stances either way, he would have found that each case was not proved ; but as each charge was proved by a credible witness, the united weight of their testimony overcame the effect of the respondent's denial ; and on the combined testimony of all the witnesses, he held the sepa- rate charges proved against the respondent. Jffeld by the Court of Appeal (reversing Wilson, J.), that in election cases, each charge constitutes in effect a separate indictment, and if a Judge on the evidence in one case dismisses the charge, the respondent cannot be placed in a worse position because a number of charges are advanced, in each of which the Judge arrives at a similar conclusion, and there- fore the separate charges above referred to were held not sustained. The respondent stated at a public meeting of the electors with reference to an alleged local grievance, that he understood it to be the consti- tutional practice, here and in England, for the Ministry to dispense as far as practicable the patronage of the constituency on the recom- mendation of the person who contested the constituency on the Gov- ernment side ; and that he, being a supporter of the Government, would have the patronage in respect to appropriations and appoint- ments whether elected or not. Held, 1. That the respondent by such words did not offer or promise directly or indirectly any place or employment, or a promise to procure place or employment, to or for any voter, or any other person to induce such voter to vote, or refrain from voting. 2. (reversing Wilson, J. ) That the respondent was not guilty of undue iniiuence as defined by s. 72 of the Election Laiv of 1868, nor as recog- nized by the common law of the Parliament of England. 3. That to sustain such a general charge of undue influence, it would be necessary to prove that the intimidation was so general and extensive in its operations that the freedom of election had ceased in consequence. The petition contained the usual charges of corrupt practices. 1875.] MUSKOKA. V 459 Mr. M. G. Cameron, Q.C., and Mr. Evatt for petitioner. Mr. B' Alton McCarthy, Q.C., and Mr. Bethune for re- spondent. The cases disposed of by the learned Judge are set out in his judgment. Wilson, J. — The case was very fully argued by the counsel for the respective parties. It will not be necessary to refer to any other of the charges than those now stand- ing for judgment.. The first of the cases relied upon by the petitioner is that which is called the Hill case. The charge as to this case is that the respondent/ promised and guaranteed the said Hill that, through the respondent's influeflce, he should never be called upon to pay certain timber dues, if the said Hill would support and vote for the respond- ent. [The learned Judge then reviewed the evidence of Hill and of the respondent, and proceeded:] There is a very plain and direct contradiction between the two accounts of these two witnesses. The fact whether Hill or the respondent first spoke of the dues so claimed by the Government may hot be material. It does not appear to be of much consequence who first introduced that subject, or at what part of the conversation it was introduced. The main question is, was it, whoever introduced by, or at whatever stage of the conversation it was introduced, held out in any form by Miller to Hill as a promise or endeavor to procure any money or valuable consideration in order to induce Hill to vote or refrain from voting? According to Hill's evidence it manifestly was ; according '%o the respondent's evidence it certainly was not. There is no other person who can speak as to the conversation. The counsel for the petitioner argued that the fact of the claim having been made by the Gavernment on the firm of which Hill was a member was somewhat extraordinary^ if it were one which was never intended to have been enforced ; and that Hill's evidence was very direct and reliable as to the fact of such claim. 460 PROVINCIAL ELECTIONS. [A.D. For the respondent it was argued that Hill in thp former sworn statement had said Miller first asked him how he was going to vote, while, in the present examination, he said that Miller first spoke to him of the dues, and that the fact of the petitioner or his friends having taken a written statement was to bind Hill to adhere to it, which showed they could not fully depend upon him, I formed no unfavorable opinion of the witness, or the manner of his giving his evidence ; I must act upon his testimony if I believe it to be true, and if I think it has not been answered or rebutted by the evidence of the respondent. The respondent is unquestionably, on the face of the inquiry, an interested witness, but there was nothing in the evidence he gave, nor in his manner of giving it, which could or did excite any suspicion whatever against his perfect truthfulness. Hill, the witness, did show he had some feeling or bias against the respondent, for he said he thought the statement in writing which he made against the respondent would operate adversely to him. If this were the only charge, and it rested only upon the evidence of Hill in support of it and that of Miller against it, I should, without disbelieving either witness, hold that as there was as much evidence against the charge as there was for it, it must be considered to have failed. It is the fact that because both witnesses are believed the case must be held to have fallen through. If one were believed and the other were not, or if more credit were given to the one than to the other, the decision would be given on a different ground. The respondent, in a case of even and fully counterbalanced testimony, is entitled to the presumption of innocency in his favor. The question is, whether the evidence can, on this record, be said to be equally balanced, so as to give him the right and benefit of all just presumptions of law and of fact ? That will depend upon the other charges which are still to be considered ; for if in the other cases I find that they are respectively balanced by the evidence of the respondent, the same witness in all of them as against 1875.] MUSKOKA. 461 several witnesses — one, however, only in each case — I should then feel obliged to rely more upon the impar- tiality and truth of the greater number who testified against the respondent, and whose evidence and characters were respectively, for reliability and veracity, as much to be depended upon as were those of the respondent. I have already stated my opinion on this point in the mat- ter of the North Benfrew ease (a), in which also I acted upon it. I shall state the conclusion I have come to on this charge when I have gone over the other charges before mentioned. I shall pass by for the present the charge respecting the speech of the respondent at Matthias' Hall, and take up the charge relating to Sufferin's case, in which the respondent is charged with offering, that if Sufferin would support him, he, the respondent, would get him the laying out of $3,000 on the Parry Sound Road. The respondent's counsel contended that it was absurd to suppose the respondent would, in the short space of two or three minutes, in a hurried interview, make a corrupt promise to a man who had already pledged his support to the respondent. There is no doubt it was not a long conversation which took place between them, but they both agree that there was mention made of Sufierin being about to run for reeve, and about the ex- penditure of the $3,000 being made. The parties differ in these respects : Sufferin says the respondent applied to him to give his support, and that the respondent said he heard Sufferin was going to run for reeve, and that he wished Sufferin to go in for it and to support him, and that he (the respondent) would get Sufferin the laying out of the $3,000, and that Sufferin said it was all right, he would support him. The respondent says he asked Sufferin how the matter was, who said that the respondent would have the ma- jority in the township; that he, Sufferin, said he was (a) Reported Dominion Elections, 1874, pout. 462 PROVINCIAL ELECTIONS. [A.D. going to run for reeve, and he hoped as reeve that re- spondent would see that the Council had the laying out of the $3,000, and that the respondent said Sufferin's claim would have to be considered at the proper time. The chief differences are that Sufferin says the respond- ent said he wanted Suiferin to support him, and he would get Sufferin the laying out of the money, and Sufferin said it was all right, he would support him ; while the re- spondent says it was Sufferin who said he hoped as reeve- the respondent would see the Council had the laying out of the money. The statement of Sufferin is distinctly coupled with the exercise of his right of voting ; the statement of the respondent is in no way connected with it. The state- ment of Sufferin shows a promise by the respondent ; the statement of the respondent shows a hope oiily ex- pressed by Sufferin. The statement by Sufferin shows a personal inducement held out by the respondent to Suf- ferin for his support ; the statement of the respondent shows a mere hope expressed by Sufferin that the Council would get whatever advantage there was in laying out the appropriation, but at the same time they would have that as distinct from the election. The one statement is a corrupt offer or promise by the candidate of personal gain to the elector, in consideration of support at the elec- tion being given ; the other statement is a mere hope dis- severed from the election, expressed by the voter to the candidate, that the respondent would see the Council were allowed to appropriate the money. And the question is, " Which account of the conversa- tion should 1 accept ?" If this stood by itself, as before stated, oath against oath, and each side equally credible, and no collateral or accompanying circumstances to aid me either way, I should hold the charge not to be proved. But the other charges, if severally sworn to by a credible witness, and the united weight of their testimonj' is to overcome the effect of the respondent's unsupported word, I may be 1875.] MUSKOKA. 463 obliged to attach such a degree of importance to the com- bined testimony o£ these witnesses, as to hold the charges to which they severally speak as sufficiently proved in law, against the opposing testimony of the respondent. I shall, before forming any opinion on this part of the case, consider the other remaining charge of the like general character, resting on the evidence, also of one witness on each side, which is contained in the next charge relating to Barker's case ; the witness for the respondent being the respondent himself as in the two preceding eases. [The learned Judge reviewed the evidence in the charge referred to, and decided it was not proved.] The remaining charge is the one relating to the respond- ent's speech at Matthias' Hall, in the township of Draper, and as it is a peculiar and a very important one, I shall have to get the language used as accurately as I can. I must make out, in the first place, what Miller really said, as well as I can extract it from the accounts of what he said. His own statement, especially when it is adverse to him, may be accepted as a genuine account of his language. The respondent says he used the words following : " I was the recognized ministerial candidate, having been nomi- nated by the Reform party. That I understood it to be the constitutional practice here, and in England, for the Ministry to dispense, as far as reasonable and practicable, the patronage of the constituency on the recommendation of the individual who had contested the constituency in favor of the Government." He said, ".I did not state I would have the patronage whether elected or not. I said I understood the constant practice was, or, as above stated, I said the patronage would be in me, and I would redress the grievance complained of, if elected." The respondent, although not now in words, in effect shows he did say or gave those at the meeting to understand that he would have, as the Government or ministerial candidate, the in- fluence or patronage of the Government in the district whether he was elected or not, because, he says, he told 464 PEOVINCIAL ELECTIONS. [A.D. them he understood the practice was " that the Ministry- should dispense the patronage of the constituency on the recommendation of the individual who had contested it in favor of the Government" — not on the recommendation of the person who had contested the constituency in favor of the Government, if that person were successful at the election, or were elected, or, in other words, on recom- mendation of the member if he were a Government sup- porter, but on the recommendation of the person who cov tested the constituency on the Government side, or, in other words, whether he was successful or not. Dill, one of the respondent's witnesses, says: "To a certain extent Miller said, as I understood him, that, being the supporter of the Government, he would have the patronage whether he was elected or not." Meyers, also one of the witnesses, says : " His speech was that, as he was the Government candidate, it was the interest of the people to support him whether he was elected or not ; that he would have the patronage and Mr. Long would not — he was not the Government candidate." Assuming, then, that the respondent did use such language and on the occasion spoken of, is it an offence within the Election Law, or is it an act or the exercise of undue influence, " recognized by the common law of the Parliament of England," according to the 36 Vic, c. 2, s. 1 ? Is such language an- ofier or promise, directly or indirectly, of any place or employment, or a promise to procure, or endeavor to procure, any place or employment to or for any voter, or any other person, in order to induce such voter to vote or refrain from voting ? The language was, in effect, " I am the Government candidate, and, be- cause I am so, I shall have the patronage and influence of the Government as to appointments and in the laying out of money appropriations in the district roads, and in the appointment of overseers for such works, and I shall have such patronage and influence whether I am elected or not, and I shall take care that no outside persons, but residents only of the district, receive such appointments." I think 1875.] MUSKOKA. 465 it is not an oflFer or promise of any place or employment, or a promise to procure, or to endeavor to procure, any place or employment to or for any voter or other person. I think it is not so, because the number of overseers in the district would be comparatively small for the ex- penditure to be made there, and the promise, if one were made, was not exclusively addressed to those present at Matthias' Hall, but to the whole constituency. If the respondent had said the district was about to be formed into a county, and a sheriff would have to be appointed at once, and he would have the disposal of that office, and he would see that a resident of the district would get it, I think it could not properly be said that the respondent had offered or promised a place or employment, or had promised to procure, or had endeavored to procure, a place or employment to or for any one within the meaning of that section of the Act. The expectation that each one of the constituency would form or might form on such language, would be of the vaguest and most indefinite kind. But if the respondent had said that 100 or 500 men would be required for a particular work at good wages and for a good while, and he would have the selection of them, and he would take care they were taken from the district, and that no outsiders should be employed, and that he would have that patronage whether he was elected or not, I am disposed to think that such a case might be brought within the operation of that section of the statute. For although there was nothing addressed to any particular 100 or 500, and the persons to be selected could not then be known, yet the great number who were to be em- ployed would afford some ground for each person sup- posing he might be one of so numerous a body; and in that way, although the offer or promise were not made to any defined body or number of persons, it being made to such a body that it might naturally operate practically in advantaging a very great number of people, and raise an expectation that the promise so made would be or might 466 PROVINCIAL ELECTIONS. [A.D. be fulfilled to each one in his own case. A promise to two to employ one, not naming which one, would, in my opinion, be within the Act ; a promise to one thousand to employ one of them would, in my opinion, not be within the Act. In this district there were at least 1,400 voters polled. Those capable of being overseers, or who might probably look for or take the office, I only conjecture. Perhaps there were several hundred, and as the expendi- ture was not very large (I am not sure whether it was named or not), the number of overseers would not be very numerous. The data are not given to me to enable me to state them accurately; but I have no reason to believe that, acting upon the rule which I have stated, the exact facts, if I knew them, would establish a case within the provision of the Act of an offer or promise of any kind, respecting place or employment, which could possibly be called an oifer or promise, having been made contrary to that enactment by the respondent. If it is a violation of the Act, or of the common law of the Parliament of Eng- land, it must be by reason of its amounting to undue in- fluence by the respondent. The 72nd section of the Act defines what is undue in- fluence under that Act: "Every person who shall directly or indirectly, by himself or by any other person on his behalf, make use of, or threaten to make use of, any force, violence or restraint, or inflict, or threaten the infliction by himself or by or through any other person, of any injury, damage, harm or loss, or in any manner practise intimi- dation upon or against any person, in order to induce or compel such person to vote or refrain from voting, &c., shall be deemed to have committed the ofience of undue influence, and shall incur the penalty of £200." Can the case be brought within the terms just quoted of that section ? If it can it must be by the following words : " Every person who shall directly or indirectly . . make use of . . any restraint . . or in any manner practise intimidation upon or against any person in order to induce or compel such person to vote or refrain 1875.] MUSKOKA. 467 from voting . . shall be deemed to have committed the offence of undue influence." The word restrained is used, it will be seen,-in connection with force or violence, and so may be said to mean some physical restraint. But menace has been held not to be confined to indicating only bodily injury. The apprehension of being excluded from the sacraments of the church, and the menace of eternal punishment, might be far more powerful than any threat of corporal punishment. County of Dublin case, 1827 (Espinasse 57, note). So restraint does not mean only cor- poral confinement or the fear of bodily harm. Taking away the will of the person by threats or by improper means of any kind not willingly assented to by the per- son, but brought about by the exercise of authority or by fear, or apprehension of loss of any kind, must be a restraint. It is said to be, to keep from action by any means ; to hold back ; to hold on ; to curb, check, repress, coerce, constrain, debar, prevent, abridge, hinder. " I have promised to restrain him hurting any man's reputation." — ^Addison. Constraint (Worcester's Dictionary) respects the movements of the body only ; restraint, those of the mind and the outward actions. The conduct is restrained by particular motives. Kestraint is an act of power ; re- strict is an act of authority. " The will or the actions of the child are restrained by the parents." — Crabbe's Syno- nyms. I refer to the leading case of Huguenin v. Baseley (2 White & Tudor's L. 0. 462) for a very full and admirable exposition of what is undue influence, and the variety of ways in which it may be exercised. I think language may be addressed to a body of electors which, by a par- ticular person, may constitute a restraint upon the free action of the electors. Now, what I have to determine is, whether the language in question can be held to have been a restraint upon or against any person in order to induce or compel such person to vote or refrain from voting ; or whether it can be said the respondent, by His language, in any manner practised intimidation upon or against any person for the 31 468 PROVINCIAL ELECTIONS. [A.D. like purpose ; or whether it can be said to be an act or the exercise of undue influence recognized by the common law of the Parliament of England, within the meaning of the statute. Too much strictness must not be imposed upon election speeches. It is said " a husting's speech has become almost a proverb for insincerity." — Freeman's Federal Government, p. 83. But that will not sanction anything being said without any check or restraint. When the respondent made the declaration he did, which is the subject of this charge, what was its nature, purpose and import ? It was to show the electors that, under any circumstances, he, the respondent, would have the influence and patronage of the Government in the electoral district, and that he would distribute them among the residents ; and that under no circumstances would his opponent have any such favor or influence. The effect of that was to draw votes to himself and to withdraw them or keep them from his opponent ; and it is a fair conclusion that the respondent intended to bring about such a result, for it is the natural tendency of the language which he used. I think that is not a fair or warrantable course of argu- ment to take; it does interfere with the free deliberation and choice of the electors of their candidates. It is made hope- less to struggle against the influence and patronage of the Grown so to be exercised, and useless to vote for a candi- date who is in no case to have any voice or influence in such matters in the constituency. Whether such language will operate upon a large body of the electors, or upon what precise number it will operate, is not so much the question. It will undoubtedly operate upon some of them, especially in this district, a newly settled, sparsely peopled, and what may be called a poor settlement ; poor because newly settled, and because the labors of the people are turned to the clearing of their land and the establishment of a home for their families. They have not received and are not receiving the return as yet of their labor. Their effort is until they can make their land remunerative; and it was designed to operate upon them prejudically 1875.] MUSKOKA. 469 and unduly as affecting their choice of a candidate ; for, of course, the candidate in dispensing his favors will prefer those who supported him to those who opposed him. I don't place any stress upon the respondent calling himself the Government candidate or the ministerial candidate; it is the common mode of speaking ; all that is meant by it is, that he is the person that the party which supports the Ministry has selected as its candidate. No one thinks that the Government or Ministry has actually selected a candidate and put him forward as its nominee in the con- test. I do not think either that the respondent saying that it was the custom, and by parliamentary practice he would have the influence and patronage whether he was elected or not, alters the character or the force or effect of the language. It is the fact that the Minister in his department has the patronage of it, and that, the contractor has the choice of his workmen. And it would not lessen the objection of their holding out what they could do, and what they meant to do in the district, and how they meant to spend their money and distribute their patronage among the electors, by telling them at the same time that they had the right and power, and it was the practice to act on these matters as they pleased — the Minister by custom- of parliamentary practice, and the contractor because he may do as he pleases with his own. I put out of consideration all those arguments 'addressed to the electors by the candidates, the one saying he is in favor of a new road, or a canal, or a railway, or some other object, and his opponent is not, and that he, the speaker, will press the performance of that work, and it will be a great advantage for the people of the constitu- ency ; because it is one of the duties of a representative to attend to matters of that kind, and he may as freely speak in that manner on such subjects as he may speak on changes in the school law, or on the tariff, or on any other matter not so peculiarly affecting the constituency. There is a difference between such a line of argument and the 470 PROVINCIAL ELECTIONS. [A.D. candidate saying he will have the patronage and influence of the Government in all the work and expenditure to be done or to be made in the constituency, and that he will have them whether he is elected or not, and that he will see that no outsiders participate in these benefits, even although he should add that he would have that power and patronage according to the custom o£ the parlia- mentary practice in such cases. I consider that, fairly interpreted, to be the exercise of undue influence, not of Government influence, but of influence in the name of the Government by the respondent, and if it be not that, or do not mean tkat, it means nothing. But I have no doubt it was meant for a purpose, and that purpose could only have been, and in his case it was, I think, unduly to in- fluence the electors in their free choice and deliberate judgment of a candidate. The conclusion I come to in reference to this charge is that I think the respondent did make use of restraint or practise intimidation upon the occasion in question upon or against the electors present at the meeting at Matthias' Hall, and perhaps upon or against those who were not present, in order to induce or compel such persons to vote, or refrain from voting, at that election. Or if the case do not come within that section of the statute, I am of opinion it must be undue influence according to the common law of the Parliament of England. New modes of undue in- fluence must or may be practised from time to time which may not be covered by the written law, but the principle of the law itself, written or unwritten, is that every elec- tion must be free (2 Co. Inst. 169 ; W. & M., sess. 2, c. 2, sees. 1, 2 ; 2 W. & M., sess. 1, c. 7) ; that the electors must be allowed freely and indifferently to exercise their fran- chise ; and it is for that cause an election is vacated by riot or other serious disturbance, or by general drunken- ness, or by general bribery, although neither the sitting member nor any one for him had anything to do with such acts : Lichfield case (1 O'M. & H. 22) ; Bradford case (1 O'M. & H. 30) ; Beverley case (1 O'M. & H. 143) ; Staf- 1875.] MUSKOKA. 471 ford case. (1 O'M. & H. 228) ; Tamworth case (1 O'M. & H. 75). However varied or novel the acts or conduct of these may be who proceed in such a manner as to violate the freedom of the election, can make no difference in the law. If the law itself be broken, if the whole election be rendered in any manner or by any persons not free, the result must be that it will be vacated as a void election. If the whole election be not so affected, but the sitting member or any of his agents is or are chargeable with certain acts of the violation of such freedom, the return of the election of that candidate will be avoided. But if the candidate is no way chargeable with any individual case of violating the principle of a free election, his seat will not be affected ; the vote or votes which may be affected by it will be deemed to be illegal. There is a resolution of the Commons of December, 1779 (37 Com- mons' Journal, 507), against the interference in elections by Ministers of the Crown : " That it is highly criminal in any Minister or Ministers or other servants under the Crown of Great Britain, directly or indirectly, to use the powers of office in the election of representatives to serve in Parliament, and an attempt at such influence will at all times be resented by this House as aimed at its own honor, dignity, and independence, as an infringement of the dearest rights of every subject throughout the em- pire, and tendiag to sap the basis of this free and happy constitution." — Kogers on Elections, 9th ed., p. 370. In Chambers' Election Law, p. 374, it is said the interference of Ministers was made a principal ground of avoiding the election in the Dublin case, 1831. That case I have not seen. The only one I have seen where a charge was made against the interference of Ministers of the Crown, is the Dover case (Wolf. & Br. 121). If it is highly criminal in a Minister of the Crown to use the powers of office in electoral contests, it must be objectionable for a candidate to assert that he has and will have those powers, although he is not in office, because he is the Government or ministerial candidate, whatever may 472 PROVINCIAL ELECTIONS. [A.D. be the result o£ the election. The powers of office are not to be used in the contest, and whether they are used by a Minister, or a friend, ally or supporter of the Minister, must be alike vicious and objectionable. Of course, in all of these cases I am assuming that such a course of proceeding is adopted with the intent mainly to influence the election : for, as I have already said, the intent is everything in such a case. These powers of office are the patronage and influence which that office confers. The exercise of that patronage and influence by delega- tion to a ministerial supporter is quite as efiectual to operate perniciously on the freedom of elections as if the powers were exercised by the principal himself. I see no difference between the Minister saying to the electors in an electoral district in which there are Crown lands to be valued for the settlers, " I have the power and patronage of the valuation of all your lands," or, " I will have the valuation of them," if said with the intent unduly to influence the election in which he is a candidate or the supporter of a candidate, and another person (not a Minis- ter, but the friend and supporter) saying the same thing by reason of his being such supporter and of his contest- ing the constituency in favor of the Government, if such person say it with the like intent ; and the same thing applies to language of the like, kind addressed to lumber- men with respect to lumber dues in their imposition, remis- sion or otherwise, and to the expenditure of Government appropriations in the opening of roads, or in the perform- ance of other public works. I am obliged to find this charge has been sustained. I must now dispose of the other charges, relating to the alleged remission of timber dues to W. J. Hill, and to the appropriation by Sufferin of the road money in his township. These charges depend not so much on the credibility as upon the weight of testimony, and I am now disposed to adopt the case of the petitioner with re- spect to them, partly because of the weight of testimony by their united force, and partly because they are to some 1875.] MUSKOKA. 473 extent of a like nature with the last charge, resting upon the influence, or upon the alleged interest and influence, of the respondent with the Government or Ministry of the day, which it is not improbable the respondent used as an argument on these occasions, as it is said he did, and as he unquestionably did on the occasion which is the subject of the last charge. I should have been glad to have been spared from pronouncing any opinion on .the other two charges. And I am not sure I should have found as I have upon them but for the conclusion to which I have come with respect to the last charge. The evidence would have warranted me in one view in finding adversely to the respondent upon them, but not necessarily so. Upon the whole, with much concern and with an earnest desire to decide fairly between the parties, I must find these charges above enumerated to have been proved by the petitioner against the respondent. And I direct that the cost shall abide the result of my finding upon the said petition. I have retained this judgment for a considerable time in order to advise with some of the Judges upon a point which has not before arisen here. I am bound to say that some of the learned Judges I have consulted do not agree with me. I have not been able to adopt their opinions. It has also been a question with me, and that too has been discussed, whether, as I desired advice, which indicated to some extent a doubt in my own mind, I should not give effect to that doubt by deciding for the respondent, and particularly in a case which is attended with such highly penal consequences. I have not been able to adopt that view, because I do not entertain such a degree of doubt as would warrant me in adopting that course. I should gladly have done' so if I could have done it from convic- tion. But I have not that conviction, and I cannot force myself to it from the opinions of others, however highly I may prize their advice and judgment. I must, after all, act on my own responsibility and judgment. The conse- quences resulting from an adverse judgment to the re- 474 PROVINCIAL ELECTIONS. [A.D. spondent I cannot help thinking of; but they are not my ^vork ; I am not answerable for them. That is the declara- tion of the written law, which is above my power. I have now only to say I desire most sincerely that this case will be appealed to another tribunal, and I for one shall in no way regret if the conclusion I have felt obliged to come to should not be the opinion of the higher Court. The respondent thereupon appealed to the Court of Appeal. Mr. B' Alton McCarthy, Q.C., and, Mr. Bethune for appel- lant (respondent in the petition). Mr. M. G. Cameron, Q.C., and Mr. BouUbee for respondent (petitioner). Draper, C. J. A. — I agree in the conclusion arrived at by my brother Burton, that the appeal should b6 allowed and the petition dismissed. But a principle as to the law of evidence was laid down in the North Renfrew case, which was referred to and acted upon in the present case, with regard to which I entertain some doubts ; and I do not wish, by passing it over in silence, to be supposed to concur in it, or to have been influenced by it in being a party to the judgment now given. I am not deciding one way or the other. It has been distinctly enough held that on a petition charging any corrupt practice, the respondent is, in a case of even and fully counterbalanced testimony, entitled to the presumption of innocency to turn the scale in his favor. Now the question presented in the present case is, whether the evidence can be said to be so equally balanced as to render it necessary for this respondent to invoke the aid of that presumption, or, on the other hand, to entitle him to it. It is put in the judgment in the following shape : " The question is, whether the evidence can, on this record, be said to be equally balanced, so as to give him the right and benefit of all just presumptions of law and fact. That will depend upon the other charges which are still 1875.] MUSKOKA. 475 to be considered ; for if in the other cases I find that they are respectively balanced by the evidence of the respond- ent, the same witness in all of them as against several witnesses — one, however, only in each case — I should then feel obliged to rely more on the impartiality and truth of the greater number who testified against the respondent, and whose evidence and characters were respectively, for reliability and veracity, as much to be depended on as those of the respondent. I have already stated my opinion on this point in the North Renfrew case." In another part of the same judgment it is said : " If this stood by itself, as before stated, oath against oath, and each side equally credible, and no collateral or accom- panying circumstances to aid me either way, I should hold the charge not to be proved. . But the other charges, if severally sworn to by a credible witness, and the united weight of their testimony is to overcome the effect of the respondent's word (second oath), I may be obliged to attach such a degree of importance to the combined testi- mony of these witnesses as to hold the charges to which they severally speak as sufficiently proved in law against the opposing testimony of the respondent." In the North Menfrew case there were nine independent charges of corrupt practices committed by Thomas Murray, the brother and agent of the respondent. Each charge was proved by one witness only, and was based upon offers or promises, not upon any act of the agent. Ad- mitting the general circumstances and much of the con- versation, and in the very words of each witness, Thomas Murray gave a different color to the language and a different turn to the expression used, which altered the meaning of the conversations detailed by the witnesses, and so constituted in effect a complete substantial denial of the character of the charge attempted to be proved, and in many respects he directly contradicted the witnesses. The learned Judge discussed at some length the question as to whose testimony he should act upon, and observed : " It is impossible to avoid seeing and feeling that the 476 PROVINCIAL ELECTIONS. [A.D. more frequently a witness is contradicted by others — although such opposing witnesses contradict him on a separate point — the more is our confidence in that single witness affected, until at length, by the number of con- tradictory witnesses, we may be induced in effect to dis- believe him altogether. It is difficult to believe that so many are wrong ; it is easier to believe that one is wrong so many times ; and the more there are who speak against him, the more we are led to believe that he is the one who is in the wrong. . . . The question of veracity does not depend only upon the strength of numbers, nor in some cases does it do so at all. Its true basis is character. It is upon the quality of the evidence, and the point is to determine that quality." In the application of these obser- vations in several cases, the determination was against the respondent, although it was expressly stated that if each case stood alone it would have been decided the other way. In one case the learned Judge said : " I rtrould, as I have already said of other charges, decide this against the petitioner if this were the only charge ; but as it is one of a series of charges, each one of which is supported by a different witness, I do not know what I can do, even in so small, I may say so trivial, a matter, unless I give effect to the accumulated weight of testimony, when I have no reason whatever to doubt the truth of the re- spective witnesses who maintain these charges." I have found no reported case which deals with this question. On an indictment for perjury, the oath of the defendant, which is charged to be false, is nevertheless, for certain purposes, assumed by the law to be true ; that is, to warrant a conviction it is held necessary to have the evidence of two witnesses, or if only one, that " there be some documentary evidence, or some admission, or some circumstances to supply the place of a second witness " {per Tindal, C. J., Beg. v. Parker, Car. & M. 639). In Reg. V. Yates (Car. & M. 132), Coleridge, J., held that one wit- ness was not sufficient to sustain an indictment for per- jury ; that this is not a mere technical rule, but a rule 1875.] MUSKOKA. 477 founded on substantial justice. The facts in lleg. v. Parker are worth noting : A debtor had made affidavit that he had paid all the debts proved under his bankruptcy except two, and in support of an indictment for perjury on that affidavit several creditors were called, each of whom proved the non-payment of a debt due by the debtor to himself, and this evidence was held insufficient. The dis- tinction between a criminal prosecution and the present case is not to be overlooked, but considering the respond- ent's position as a defendant in this proceeding, there is not only the presumption of innocence of an offence charged against him in his favor, but also the maxim, applicable in civil as in criminal cases, " semper presumitur pro negante." (See 10 CI. &. Fin. 534.) The respondent is charged with corrupt practices. There were four cases on which the learned Judge took time to consider, and three were held to be sustained, and the election was declared void. He was in the position of a defendant accused of an offence before a competent tri- bunal. The presumption of innocence, until his guilt was proved, was in his favor — having denied the charge ; the maxim above quoted was in his favor also. The case as put is one of even and fully balanced testimony ; each separate charge is supported by only one witness, and is contradicted by the respondent on oath ; and, as I under- stand from the judgment delivered, would have been found against the petitioner if it had been the sole charge, for though the proof adduced by the petitioner sustained it, it was answered and displaced by the respondent's evi- dence. It is not asserted that this evidence in rebuttal was untrue, or that the respondent was a man not worthy of belief. I cannot follow the reasoning which makes the fact that several independent charges were, prima facie, proved — each by one witness only, and were rebutted, though by the respondent alone — a ground for convicting him of all, for no distinction can be drawn between them. And yet I cannot to my own satisfaction answer the arguments on which the judgments in this and the North 478 PROVINCIAL ELECTIONS. [A.D. Renfrew case were founded, and I am relieved from the necessity of so doing, as on the other grounds taken I fully concur in the judgment of my brother Burton. Burton, J. A. — We are fortunately, in this case, not embarrassed with any difficulty arising from a conflict of testimony. The learned Judge finds expressly that there was nothing in the evidence of the respondent, nor in the manner of giving it, which could or did excite any suspi- cion whatever against its perfect truthfulness, whilst in commenting upon the evidence both of Hill and Suffering it is clear that he had not formed an equally favorable opinion of their manner of giving their testimony or of their conduct as disclosed by themselves, remarking that the behaviour of the latter, even on his own version of what occurred in conversation with another witness when going to vote, and his voting against the respondent after voluntarily engaging to support him, had not been altoge- ther creditable; whilst Hill had shown some feeling against the respondent in giving his evidence. We have before us, therefore, the learned Judge's views of the way in which the witnesses impressed him, and we have to draw, such inference from the whole evidence set out on the record as we think he should have drawn, and find accordingly. It must, in the first place, be borne in mind that no acts of bribery were established ; what is alleged in the two cases of Hill and Sufierin (assuming them for the pre- sent to constitute corrupt practices within the meaning of the statute) consisted merely of offers or proposals to bribe. In such cases it ought to be made out beyond aU doubt that the words imputed to the respondent were actually used, because, as has been remarked in one of the decided cases, when two people are talking of a thing which is not carried out, it may be that they honestly give their evidence, but one person understands what is said by another differently from what he intends it. Still more should that be the case when the adverse finding is 1875.] MUSKOKA. 479 attended with such highly penal consequences as the Legis- lature has declared shaU follow the infraction of several clauses of the Election Act. The learned Judge reports that he should have found both these charges disproved if there were no collateral or accompanying circumstances to aid him either way. He finds all the other charges, with the exception of the last (to which I shall presently refer), disproved, which should, I venture to think, have some weight. The collateral circumstance which turned the scale, and induced the learned Judge to arrive at a different conclu- sion, was what occurred at Matthias' Hall. The speech there delivered induced him to adopt the case of the petitioner with respect to these two charges also ; partly, as he says, " because of the weight of testimony by their united force, and partly because they are to some extent of a like nature with the Matthias' Hall charges, resting upon the influence or upon the alleged interest and influ- ence of the respondent with the Government or Minis- try of the day, which it is," he adds, "not improbable the respondent used as an argument on these occasions, as he unquestionably did on the occasion of the speech." I* can quite understand that a judge or a jury may find their confidence considerably shaken in a witness whom they were at first inclined to credit, by his being contra- dicted by a number of witnesses, although each witness speaks of a different subject. Still, after all, it comes back to the question of what credit is to be given to the wit- nesses on each side. The judge or jury, under such circumstances, would scru- tinize the evidence of the witness with greater care. The maxim of law is, " ponderant.ur testes non numerantur" and, as laid down by Mr. Starkie, no definite degree of pro- bability can in practice be assigned to the testimony of witnesses; their credibility usually depends upon the special circumstances attending each particular case ; upon their connection with the parties and the subject matter of litigation, and many other circumstances, by a careful 480 PROVINCIAL ELECTIONS. [A.D. consideration of which the value of their testimony is usually so well ascertained as to leave no room for mere numerical comparison. I do not understand that there is any conflict of evi- dence as to what occurred at Matthias' Hall ; the speech, as proved on both sides, is substantially the same. The weight of the evidence, then, so far as it is in- creased by what the learned Judge calls its united force, is confined to the two charges in respect of Hill and Sufferin. There is a peculiarity about these election cases, that each charge constitutes in effect a separate indictment. It seems to me, therefore, that if, in the opinion of the Judge, there is not sufficient evidence to support the charge, or, in other words, if evidence is given on both sides, and the Judge gives credit to the respondent, and so dismisses the charge, the respondent cannot be placed in a worse position because a number of charges are submitted, in each of which the Judge arrives at a similar conclusion, or that a limit could eventually be reached where, although his conclusion upon the particular charge in addition to the others would in itself be favorable to the respondent, the Judge should feel called upon, by reason of the multi- plicity of the charges in which the respondent's evidence and that of the witnesses opposed to him have been in conflict, to come to an adverse decision by reason of the cumulative testimony which he has previously discredited. To my mind, an accumulation of such acquittals should, if any weight is to be given to it at all, be thrown into the scale in favor of the respondent. The only two charges in which there is a conflict of evidence are those of Hill and Sufferin. The learned Judge, in the first of these cases — a case dependent al- together upon the witness' precise recollection of the words used and the way in which they were understood — reports his conviction of the perfect truthfulness of the respondent, and- that Hill's evidence was given with a manifest bias ; and he comes to the conclusion at first to 1875.] MUSKOKA. 481 believe the respondent — -a conclusion which, from a per- usal of the evidence, I should also have arrived at, but in the correctness of which I am further confirmed by two circumstances not referred to by the learned Judge, viz.: (1.) That Hill himself states that he did not regard it as a bribe at the time, but only awoke to the conscious- ness of there being anything cornipt in it some six weeks afterwards, when it was deemed necessary to bind him down by a statement under oath. (2.) That it was deemed necessary so to fetter him. These two circumstances, apart altogether from the explicit denial by the respond- ent, carry conviction to my mind that the learned Judge's first impression was the correct one. In the Sufferin case it is clear that when the alleged conversation occurred Sufferin had avowed his intention to support the respondent, who was aware of the fact, and any promise thus made could not have been made in order to induce him to vote or refrain from voting ; and this renders Sufferin's version of it highly improbable. He is, moreover, contradicted by two witnesses besides the respondent. Sufferin himself admits, "I was not induced to support him by this offer of $3,000 (that is, as to the laying out of $3,000 on the roads' in his township) ; it made no definite impression on my mind at the time ; " and the conduct of this witness was such as not unnatur- ally to call forth the remark from the Judge, that it was not straightforward dealing, and was calculated, and perhaps purposely so, to deceive. This also, subject to the investigation of the two other charges, he held to be not proved. " But," adds the learned Judge, " the other charges, if severally sworn to by a credible witness, and the united effect of their testimony is to overcome the effect of the respondent's unsupported word, I may be obliged to attach such a degree of importance to the combined testimony of these witnesses as to hold the charges to which they severally speak as sufficiently proved in law against the opposing testimony of the re- spondent." 482 PKOVINCIAL ELECTIONS. [A.D. The learned Judge then proceeded to investigate the re- maining charges, holding one o£ them not proved, and the other, viz., the Matthias' Hall speech, is one about which there is no conflict of evidence. We may assume, therefore, that but for the learned Judge's view of that speech, he would have disregarded the united force of the adverse testimony ; and had he taken the same view of that speech which we are inclined to do, he would not have varied his first decision upon the other charges. It would seem that both the respondent and his op- ponent claimed to be supporters of the Ministry of the day ; but that the respondent claimed to be the recognized ministerial candidate, having been nominated by the Re- form party. He claimed further, that his opponent, having originally pledged himself to support him and then coming out in opposition, could not expect to retain the confi- dence of the Government, and that according to his ideas of constitutional practice, the patronage in the consti- tuency would be in his hands, as the ministerial candidate, whether elected or not. It seems to be admitted on all sides that it was felt to be a grievance of some standing, that strangers were sent up to superintend the work on the roads, and the respond- ent is said to have stated that, whether elected or not, he would endeavor to get it remedied. Taken in the most unfavorable view for the respondent, what he did say, according to Mr. Teviotdale's evidence, was, " He would have the patronage, as he was the choice of the Govern- ment, he would have it whether elected or not elected ;" adding by way of explanation, as I understand it, " It was the laying out of money on the roads and appointment of overseers." There is a slight difference between the respondent's version of this speech and that of some of the witnesses ; but, taking them in the strongest way against him, I have been unable to convince myself that they constitute a corrupt practice, or that they differ substantially from 1875.] MUSKOKA. 483 what is constantly done by candidates, in impressing upon electors the importance to themselves of being represented by a ministerial candidate. The learned Judge holds that such language cannot amount to an offer or promise of any place or employment, or a promise to procure, or to endeavor to procure, any place or employment to or for any voter or other person, within the 1st section of 36 Vic, cap. 2, and therein we agree with him ; but he holds that it amounts to undue influence within the 72nd section of 32 Vic, cap. 21, or according to the common law. To prove an offence within that section, it must be shown either that physical force was used or threatened, or that loss or damage was caused or threatened upon or against some person in order to induce or compel such person to vote or refrain from voting. This was not a threat, nor does it come within the definition of physical force or violence, or doing any loss or harm to any one. Can it then be brought within the remaining words, " in any manner practice intimidation ?" To bring the case within this branch of the section, it would, I presume, be necessary to show that some one had been intimidated. But it appears to me to be quite impossible to. hold that it comes within this section at all. There was no attempt to work upon the fears of any one ; it was rather upon their hopes or expectations ; and would come more pro- perly, if an offence at all, within the bribery clauses, but the learned Judge has himself given the answer to that. Baron Bramwell, in reference to the evidence necessary to bring a case within this clause, is reported to have said : "When the language of the Act is examined it will be found that intimidation, to be within the statute, must be intimidation practised upon an individual. I do not mean to say upon one person only, so that it would not do if practised upon two or a dozen, but there must be an identification of some or more specific individuals affected by the intimidation, I will not say influenced by it, but to whom the intimidation was addressed, before 32 484 PROVINCIAL ELECTIONS. [A.D. it could be intimidation within the statute, otherwise it comes under the head of general intimidation." The suggestion that the otfence was one at common law was perhaps sufficiently answered by the statement that no such charge was made in the petition, and that the respondent should not be called upon to meet it. But apart from that, I apprehend it would be necessary to go much further to sustain such a charge, and to prove that the intimidation is of such a character, so general and extensive in its operation, that people were actually intimi- dated to such an extent as to satisfy the Court that freedom of election had ceased to exist in consequence ; just such evidence, in fact, as would be required to avoid an election on account of an organized system of treating or bribery. Great latitude is necessarily allowed in speeches of this kind; and to hold an election illegal because of the use of such language as is attributed to the respondent in this case would be to render a law, harsh enough admittedly in many of its provisions, intolerable. What the respond- ent is alleged to have said was an argument or reason for the electors supporting him rather than his opponent, if they believed his statement that he would be more in- fluential .with the Government in securing local benefits, and in redressing the particular grievances of which they complained ; but it would be going, in my opinion, far beyond what the Legislature ever contemplated, to hold that self -recommendation of that kind on the part of a candidate was to subject the electors to have the election avoided, and to expose him to the disgrace of disqualifica- tion for any office in the gift of the Crown, or any muni- cipal office, for eight years. I think the evidence fails to establish either of the two first charges, and that the remaining charge is not a cor- rupt practice within the Act ; and adopting the language of Mr. Justice Willes in the Lichfield case — "considering the extreme solemnity and weight which ought to be attri- buted to an election that has, so far as one can judge, in all its substantial been regularly and properly conducted 1875.] PEEL. 485 — ^looking to the amount and weight of evidence which ought justly to be required to disturb a proceeding of that description ; " and looking, I may add, to the highly penal consequences resulting to the respondent, and find- ing no evidence which, in my opinion, ought to outweigh the denial of the respondent, and justify me in finding him guilty of the offences charged, I think we ought not to arrive at a conclusion adverse to him, and that the appeal should be allowed and the petition dismissed. Patterson and Moss, JJ. A., concurred. Appeal allowed and petition dismissed. (9 Journal Legis. Assem., 1875-6, p. 198). PEEL. Before Chief Justice Draper. Brampton, Snd to 5th, and 14th June, 1875. Before the Court of Appeal. ToBONTO, 17th December, 1875, S^th January, 1876. William Hurst, Petitioner, v. Kenneth Ohisholm, Bespondent. Corrupt practices — Partial denial — Appeal — Further evidence — New trial — Withdrawal of petition — Refusal to allow substitution of petitionei: Charges of corrupt practices, consisting of promises of money and of em- Eloyment, were made against the respondent and one M. , his agent, loth the respondent and his agent denied making any promises of money, but left the promises of employment unanswered ; and the Judge trying the petition {Draper, C. J. A.) so found, and avoided the election. Thereupon the respondent appealed to the Court of Appeal, and under 38 Vic, c, 3, s. 4, offered further evidence by affidavit, specifically denying any offer or promise, directly or indirectly, of em- ployment. Draper, C. J. A., who tried the petition, having intimated to the Court that had the respondent and his agent made the explicit denial as to offers of money or employment which it appeared they had intended making, he would have found for the respondent, Held, under these circumstances, that the finding of the Election Court should be set aside, and that a new trial should be held before another Judge on the rota. Observations on the difference between an election trial and a trial at Nisi Prius. The Court recommended the petitioner to withdraw his petition in this, case ; and on an application for that purpose, another elector having applied to be substituted as petitioner. 486 PROVINCIAL ELECTIONS. [A.D. Held, per Burton, J. A., that as the Court of Appeal had been placed in possession of all the charges against the respondent, and of the evidence in support of them, and had recommended the withdrawal of the peti- tion, and no suflScient additional grounds having been shown for such substitution of petitioner, the order for the withdrawal of the petition should be granted. The petition contained the usual charges of corrupt practices. Mr. Boulthee and Mr. Evatt for petitioner. Mr. Bethune and Mr. James Fleming for respondent. The evidence showed that the respondent, in company with one Martin Maddigan, when canvassing a voter, Daniel Mullen, was given to understand that Mullen wanted money for his vote. Mullen's wife also swore — " Mr. Chisholm said, if my husband was put out of work for him, he would find him employment ; if he voted for him, and he was put out of his winter's work through his means, he would find employment if he voted for him." The respondent swore that he did not make Mullen any promise, or ofier him anything ; that he told Mrs. Mullen that it was against the law, and that it was impossible to pay for a vote; that he had to take a solemn oath if elected that he had neither paid nor promised to pay anything ; and that he would not pay one cent for a vote in any shape whatever. Another voter, Michael Hugo, and his wife swore that when canvassed by the respondent and Maddigan, money was talked of, and that the respondent said, " If he (Hugo) got out of employment, he (respondent) would give him employment if he would vote for him." The respondent swore that he did not offer any money in any form of words or in any shape, or any inducement. The respondent's evidence in each case was confirmed by Martin Maddigan. Draper, C. J. A. [in giving judgment on this part of the case, said :] " Although the respondent and Martin Maddigan meet the statements as to money, or promises 1875.] PEEL. 487 of money, by a full denial, neither they nor any other witness touch the question of employment, ■which, as far as I see, is unanswered. This conclusion makes it my duty to determine the election and return of the respond- ent void." The respondent appealed to the Court of Appeal from this decision of the learned Chief Justice, and set out amongst others the following as one of the grounds of appeal: " That the judgment of the said Chief Justice was erroneous in finding that the evidence of Daniel Mullen, Mrs. Mullen, Michael Hugo" and Mrs. Hugo, was uncon- tradicted by the evidence of the said respondent; and that on the hearing of the said appeal the respondent will ask that this Honorable Court hear the affidavits of the said respondent, Martin Maddigan and John Mad- digan, specifically denying thfe said alleged offers or pro- mises." The affidavits above referred to specifically denied any offer or promise, directly or indirectly, of employment to the voters referred to. Mr. Slake, Q.C. (Attorney-General of Canada), and Mr. BethuTve for respondent. Mr. Rector Cameron, Q.C, and Mr. Beaty, Q.C, for peti- tioner. ' Richards, C J., in delivering the judgment of the Courtj pointed out the difference that existed between an election trial and one at a Nisi Prius Court, showing that in the latter there was every facility for the analysis and comparison of evidence, and the discovery and cor- rection of error ; while at election trials, by reason of the usually large mass of evidence taken, and the fact that such trials were comparatively new, the liability to mis- take by omission or mistake was much greater. Under these circumstances, he thought it would be rather severe if rules applicable to Nisi Prius trials were strictly en- forced at the Election Courts, especially when, perhaps by 488 PROVINCIAL ELECTIONS. [X-I). an oversight on the part of counsel, parties might be visited bj very severe, penalties. He had communicated with thp learned Chief Justice by whom the present case had been tried, and he (Chief Justice Draper) had said that if the respondent and the witness Maddigan had made the explicit denial as to the alleged offers of money or employment which it appeared they had intended making, he would have found for the respondent. The Chief Justice had further stated that he was satisfied that the respondent and Maddigan had in- tended making such denial, but it not having been made, he was obliged to decide against the respondent on the evidence. Under these circumstances, this Court could not allow the finding of the Election Court to stand. They would therefore grant a new trial, to be held before an- other Judge on the rota. On account of the irksomeness attending the second trial of the same ease by a Judge, and having in view the advantage of the evidence being brought before a mind new to the case, they deemed it preferable to have the trial conducted by another Judge on the rota. The petitioner should seriously consider whether it would not be better to withdraw the petition altogether without costs to either party. The costs of the former trial and of the appeal to abide the event of the new trial. Subsequently, on an application by the petitioner to withdraw the petition, Mr. Justice Burton made the order for the withdrawal of the petition, and on the 24th January, 1876, transmitted the following report thereon to the Speaker : " I have the honor to report to you, in accordance with the requirements of the 39th section of the Controverted Elections Act of 1871, that an application made by the petitioner against the return of Kenneth Chisholm as member for the County of Peel, for leave to withdraw such petition, was heard before me on the 19th instant ; and being of opinion that the withdrawal was not the 1876.] LiNCOtN (2). 489 result of any corrupt agreement, or in consideration of the withdrawal of any other petition, I granted the application- " I beg further to report that on the hearing of such -application, one George Sharpe, an elector, applied to be -substituted for the petitioner ; but as the Court of Appeal had been placed in possession of all the charges, and of the evidence which had been adduced in support of them ; and had, with such information before them, considered it a fit case for withdrawal, and had recommended that course to the petitioner, although he had not availed him- self of the permission within the prescribed period; and as no sufficient additional grounds were in my opinion shown for such substitution, in the exercise of the discretion vested in me by the Act, I declined to allow such substi- tution." (9 Journal Leyis. Astern., 1875-6, p. 167). LINCOLN (2). Befoee Mr. Justice Patterson and Mr. Vice- Chancellor Blake. St. Cathaeines, llih to 13th September ; Jith and 5th December, 1876. Toronto, SOth September ; 6th,,S3rd and 30th December, 1876 ; Slst February, 1879. Nathan Henry Pawling et al. Petitioners, v. John Charles Eykert, Respondent. Waiver of particulars^Amendment — Cumulative acts of bribery — 39 Vic, Ci 10, 8. 37 — Affecting result of election — Bets to change votes — Interim certificate to Speakei — Stolen ballots — Costs. "The respondent was elected by a majority of 23, and on the trial of an election petition, filed to set aside his election for corrupt practices and illegal votes, evidence was given by both sides on a charge not properly set out in the petitioners' particulars of corrupt practices. At the close of the evidence the respondent objected that the charge was not in the particulars, and tha^ it was not verified by the affidavit of the peti- tioners : Held, 1. That the petitioners might amend their particulars, and that the charges in the petition were wide enough to cover the charge. S. That as to this charge, the parties had in fact gone into evidence without particulars, and that the petitioners' affidavit verifying the particulars was not necessary. 490 PROVINCIAL ELECTIONS. [A.D. Where corrupt practices by agents, and others in the interest of th© respondent, affected less votes than the majority obtained by the re- spondent at the election : Held, under 39 Vic, c. 10, s. 37, that such corrupt practices did not extend beyond the votes affected thereby, and did not avoid the election. Where, in addition to the above corrupt acts, bets were made by agents of the respondent and others, with a number of voters who were sup- porters of N., the opposing candidate, the effect of the bets being that in order to win the bets, the voters must vote for the respondent : Held, that these bets were for the purpose of getting votes for the re- spondent, and were corrupt practices ; and that in connection with the other cormpt acts proved as set out above, they affected the result of the election ; and that the election was therefore avoided. The Court cannot grant an interim certificate declaring an election void, as the statute contemplates only one certificate to the Speaker, certi- fying the result of the election trial. During the progress of a scrutiny of votes, certain ballot papers, counter- foils and a voters' list were stolen from the Court, which had the effect of rendering the proceedings in the scrutiny useless. And in disposing of the costs, the Court ordered the respondent to pay the costs up to the date the election was avoided, but that, under the circumstances, each party must bear his own costs of the scrutiny. The election of January, 1875, having been declared void {ante, p. 391), a new election was held on the 18th and 25th February, 1876, at which the respondent was declared elected by a majority of 23. The petition was thereupon filed, containing the usual charges of corrupt practices, and claiming the seat for th& unsuccessful candidate. Mr. Maclennan, Q.C., Mr. Hodgins, Q.C., and Mr. Calvin Brown, for the petitioners. Mr. M. G. Cameron, Q.C., and Mr. Peter McCarthy, for the respondent. Evidence was given on behalf of the petitioners on a charge that John Junkin, the financial agent of the re- spondent, had been guilty of corrupt practices in bribing- one Arthur Belcher. The evidence showed that the corrupt practice was an offer to the wife of Belcher to procure the husband's vote for the respondent in the manner set out in the judgment. At the close of the evidence. Counsel for the petitioners contended that the evidence sustained the charge, and asked for leave to amend the- particulars. 1876.] LINCOLN (2). 491 Counsel for the respondent contended that the charge relied upon was not in the particulars, and therefore, as laid, it failed ; and that the evidence did not sustain any charge of a corrupt act. No new particulars could now be allowed, for by the Act of 1876 the particulars must be verified by the oath of the petitioners. The amend- ment would be in effect new particulars, and the evidence would have to be given over again. Besides, the evidence of Mrs. Belcher showed that the petitioners had long been in possession of the facts relied upon. Patterson, J. A. — The amendment is opposed on the grounds, amongst others, that the charges now asked to be added are founded on facts which were stated in the affidavit made by Mrs. Belcher before the petition was filed, and which has been ever since in the hands of the solicitors for the petitioners ; and that the charges ought to have been embodied in the particulars delivered under the order in the cause, instead of the illusory statements then made, and which are neither supported by the evidence now given nor by the information which it is sworn was in the solicitors' hands. This is a serious objection, and upon it we should refuse the amendment, as we did yesterday refuse one on the same grounds ; but in this case no objection was made at the close of the petitioners' evidence, but the respondent called evidence, not to rebut the charge in the particulars which the peti- tioners' evidence had not approached, but to rebut the charge of offering inducements to the wife to procure her to persuade her husband to vote or refrain from voting. The charge has thus been brought before us by both parties; and we think that however strongly we disapprove of the practice of paying so slight regard to the order for particulars as to furnish as particulars a statement based on no grounds warranting the oath now required to accompany the particulars, and to withhold the facts embodied in the affidavit, which, by another most repre- hensible practice, had been taken as a fetter upon the 492 PROVINCIAL ELECTIONS. [A.D. conscience of the witness, yet we have to regard this application as one to state on the record what has already been investigated as if it had been there. It is further objected that under section 28 of the Act of 1876 (39 Vic, c. 10), we cannot allow these ameiided particulars without an affidavit of verification, and that if they are received the charge must be investigated afresh. We do not think this objection well founded. The peti- tion is wide enough to cover the charges in their amended shape. The parties may go on without particulars if they please, and this is in fact what they have done as to these charges. The amendment is made under the power given us by section 33 of the Act of 1870-71 (34 Vic, c 3), and by General Rule No. 6, and has the same eiFect as any amend- ment at Nisi Prius. We do not read section 28 of the new Act as restricting this power. [The learned Judge here reviewed the evidence.] On the evidence we find that John Junkin did offer Anne Belcher a valuable consideration, by offering either to procure two months' rent to be thrown off, or that time should be given for the payment of that rent ; and that this was, within the words of section 67, subsec 1, 31 Vic, c. 21, an offer or promise of valuable consideration to a person on behalf of a voter, or to a person in order to induce a voter to vote or refrain from voting. We hold that Junkin was an agent of the respondent. The acts done by him during the election contest are un- questionably sufficient evidence of agency, if they had the requisite recognition by the candidate or his agents. We think this recognition is shown both by the evidence of the respondent himself as to his calling on his friends at his nomination to work for him — not merely to vote for him ; by the fact, wbich is apparent from the evidence, that the whole of what was done in the city was left to Junkin and others to do ; and by the circumstance that Junkin was named by the respondent as his financial agent ; and Junkin's evidence that he constantly resorted 1876.] LINCOLN (2). 493 to the respondent's office to meet with the other persons who were canvassers Hke himself, and compare progress, ■and otherwise promote the election of the respondent. The respondent may not have been at any of these meet- ings, or have any personal knowledge of the persons who were there ; but his clerks were there, and he had the means of knowledge, and must be held, as the proper inference of fact, to have known of what was taking place. Blake, V.-C, concurred. An order was then made appointing the times and places for a scrutiny of votes to be taken before the Re- gistrar (Mr. C. A. Brough) in each municipality of the elec- toral division. Evidence was given that one Dexter Potter was an agent of the respondent, and that on the night preceding the election he made bets with two voters, John Jackson and Abram Hollingsworth, in consequence of which bets they voted for the respondent. After argument, the following judgment was given ^ Patterson, J. A.— We hold that the agency of Dexter Potter is established, and that, therefore, the charges of bribery by an agent are made out in the oases of Jackson and Hollingsworth; but the eifect of these acts of bribery, either by themselves or in connection with the Belcher case, do not extend beyond the votes affected. Evidence was then given of the payment of $150, in sums of $50 each, to Patrick Hennegan, John Y. Cush- man and Thomas Nihan, by one Arthur Aiken, on the 22nd or 23rd February. The money was placed in three separate parcels on a table in the tavern kept by Aiken at St. Catharines, and each of the parties above named took a $50 parcel of the money. One of the witnesses (Hennegan) swore he used the money for election pur- poses. 494 PROVINCIAL ELECTIONS, [A.D. Evidence was also given of the payment by the said Arthur Aiken of the taxes of nine income voters between the 10th and 17th February. The petitioners then applied for leave to amend charg- ing the above as corrupt practices by an agent of the respondent, and the Court, by consent of parties, then adjourned to meet in Osgoode Hall, Toronto, on the 30th September, on which day the following judgment was delivered : Patterson, J. A. — After conference, we hold that the agency of Aiken is not proved, but that the evidence is sufficient (if not rebutted) to show an illegal act by Aiken under s. 67, subs. 5 of the Election Law of 1868 ; and we allow an amendment to charge an offence by Aiken under that subsection, and also to charge an offence in respect of the payment of the income tax of the nine voters. The Court then adjourned to meet at the Court House in St. Catharines, on the 4th December. On the reassembling of the Court, Mr. Maclennan, Q.C., proposed to read to the Court evidence taken before the Registrar on the scrutiny of votes. ' Mr. M. C. Cameron, Q.C., objected. The Court ruled that the evidence taken on the scru- tiny was not admissible on the trial of the petition. The petitioners then called the following witnesses : Arthur Aiken : I went out on the night previous to the election with James Brownlee ; cannot say where I first met him; cannot say if it was before I went to Rykert's office ; had no particular business in meeting him ; if I swore I met Brownlee for election purposes I must have been crazy at the time ; we talked about the election and about making bets ; I heard some one say at Rykert's office, " We must all do our best ; " don't know who it was ; I think Rykert was in one of the rooms, but am not positive ; we were all to do our best at the elec- 1876.] LINCOLN (2). 495 tion; think there were fifty people present; have no TecoUection of scrutineers being appointed ; was at a com- mittee meeting at Cain's, for St. James' "Ward, a week or two before that ; we were looking over the voters' list. When I met Brownlee on the night before election I had about $1,000 in my pocket ; I went out to get men to bet ; I did not know whether the men were Neelon or Rykert men ; wanted to bet they would vote for Neelon, or for them to bet they would not vote for Rykert; believe Brown- lee got some men to bet that way ; do not recollect how much money I gave Brownlee to bet with ; I think Brownlee gave me back all the money except $35 ; the bets were $5 and $10 ; do not recollect how much I bet myself ; expended about $-50 or $60 in bets ; have no recollection of saying it was $60 or $70 ; I sent Brownlee to make bets ; he told me he had made two bets ; I asked Dexter Potter if he knew anyone who would bet that they would vote for Rykert ; Potter said, " Come along," and Brownlee and 1 went with him ; I suppose I had six or seven other bets; think one of the bets occurred next morning ; they were not all Neelon men I bet ' with ; nearly all of them I thought would vote for Neelon ; I thought a little money at election time would do almost . anything, and I think so still ; have great faith in money a,t election times ; thought the election would be close, and did what I could to change it ; spent $55 altogether in bets ; made other bets with supporters of each party ; bet that Neelon would be elected ; bet on majorities all over the county ; the bet on the morning of the polling day was with David Grant, a colored voter ; went to Jacob Moore's place on polling day with Dexter Potter, and oflFered to bet with him ; do not know if Moore had .any money; Moore said he did not want to bet; had nearly $1,000 in my pocket, the balance of what I had the night before ; first talked of these bets with Brownlee on the night previous to the election ; no one suggested the idea of making these bets ; think I met Brownlee at Rykert's office ; did not consult anyone beside Brownlee 496 PROVINCIAL ELECTIONS. [A.D. and Potter ; thought I was getting round the Isiw, but it seems I was not ; lost all of the bets but one ; kept no account of them in any book ; only put them down on a piece of paper in an envelope ; have had* large financial dealings with Mr. Rykert ; did not- bring a farthing of this betting account into the dealings with him ; may have discussed these bets with him ; he never mentioned bets to me ; he told me I was very foolish ; have made no claim through him for any money expended in bets j did not know Moore was a supporter of NeeJon's ; thought he would accept the bet when I made it ; think he said he would see Potter again. Cross-examined : I am not an agent of Mr. Rykert's ; was in his office on the night before the election ; did not receive any instructions from Rykert ; most of the bets were sporting bets. Dexter Potter : I supported Mr. Rykert at last election • do not recollect that there were any committee rooms for St. James' Ward ; looked over the voters' list when at Cain's house to see who were voters ; there may have been a dozen people present ; the names of two scruti- neers were agreed on ; Brownlee and Aiken asked me about several voters; mentioned the names of Wise Parker, John Jackson, Hollingsworth, and the two Tyrrells ; cannot remember how many I spoke of ; Collins' name was mentioned later in the evening ; do not think Moore's name was mentioned ; might have spoken about David Grant ; think I was out with Brownlee and Aiken about two hours ; I bet that the voter would vote for Neelon ; think Aikens suggested the bets ; my father stopped at my house, and asked me to go up to Cain's^ place ; I went there expecting to meet others and hear what was going on; went there for purposes of the election. Counsel for the petitioners contended that, in any event, Aiken was an agent of the respondent, either from his attending the respondent's committee meetings, or from 1876.] LINCOLN (2). 497 Pottfir, who had been held to be respondent's agent, re- questing him to canvass with him the night' before the election ; that the respondent's majority was 23 ; that the bets proved were with voters who had intended voting for Ndelon, and the effect of their voting for the respond- ent was to " count two on a division." Under S..37 of the Act of 1876, these acts, in connection with the illegal practices already adjudicated upon, have affected the elec- tion : Hackney case (31 L. T. N. S., 69 ; s. c, 2 O'M. & H. 81.) Counsel for the respondent contended that the agency of Aiken had not been established, and that the peti- tioners had failed to bring the case within the operation of s. 37 ; that to do so they must show that the corrupt practices and illegal acts have had a material effect on the election. Blake, V.-C, referring to the majority of 23, by which the respondent was declared the member for the county, said the question was — would the result have been that had not these corrupt practices Keen adopted ? He re- ferred to the advance of $160 by Aiken to Cushman and others, and to its having been admitted that that money effected the very object the person advancing the money had in view, and it was but reasonable to suppose it more or less affected the result of the election. Then again, this same gentleman advances money to persons to pay their income taxes, which payment gave them a vote, and it is a reasonable conclusion that the election was more or less affected by these nine voters whose income tax was paid. Then there are these three men going out and pursuing a system of betting for the purpose of getting votes, and it is out of all question to say that this did not affect the election. Aiken says he thought by doing so he would get outside of the law, for he knew he could not openly bribe any voter : that is the system of betting which was pursued on the night previous to the election, and again on the morning of the election. He goes to bet with a person more for the purpose of inducing him not to vote the way 498 PKOVINCIAL ELECTIONS. [a.D. the other intended. Had these corrupt practices not pre- vailed there is no doubt the result of the election, instead of being in favor of the respondent, would have been the other way ; and under the 37th section of the Act, it is impossible to say that the seat can be held by respondent. He did not express any opinion on the point as to Aiken being an agent of the respondent, although he strongly believed he was such agent. Patterson, J. A., agreed with the conclusion arrived at by his learned brother. It was shown that there had been a considerable expenditure of money, and that Aiken actively, and for considerable time before the polling day, was endeavoring by the expenditure of money to influence the election, and that two corrupt practices already ad- judicated upon were committed by agents of the respond- ent, with his money and in concert with Aiken. It is impossible to say that the corrupt acts were of such trifling nature or extent, that the result cannot be reasonably supposed to have been affected by those acts and illegal practices. We therefore declare the election void. It is not necessary to hold that Aiken was an agent, but I am strongly of opinion that his agency is established. The Court then adjourned to 23rd December, to allow the scrutiny of votes to proceed. On the reassembling of the Court on that day, Mr. Maclennan moved to have the statutory certificate sent to the Speaker, showing that the election of the respondent had been declared void. He also asked that the Court declare that sec. 31 of the Election Act of 1876, which prohibits the trial of an election petition during the session of the Legislative Assembly, did not apply to prevent the scrutiny of votes proceeding in this case. Mr. Cameron, for the respondent, declined to consent to the trial proceeding during the session. The Court declined to grant the interim certificate asked for, as the statute contemplated only one certificate; and held that the prohibition in the Act applied to prevent the scrutiny proceeding duringthe session of the legislature. 1876.] LINCOLN (2). 499 After the close of the then session of the Legislature, the scrutiny of votes proceeded before the Kegistrar. A case affecting the revision of the voters' lists by the County Judge of Lincoln was stated by the Eegistrar and reserved for the decision of the Judges under 36 Vic, c. 3, s. 34. (See re Lincoln Election, Borrowman's case, 2 App. R. 316.) The judgments in appeal from the Registrar are reported post, p. 500. i During 4he proceedings before the Registrar, certain ballot papers, etc., required to identify a number of votes which had been declared bad, were stolen from the Court* Both parties thereupon made admissions before the Registrar as to how the voters whose ballots had been stolen had voted, which admissions the respondent after- wards sought to withdraw. A special case was then settled by the election Judges for the opinion of the Court of Appeal : re Lincoln Election Petition, 4 App. R. 206. The Court held the admissions were not binding, and that no evidence could be given to show how the voters had voted. The proceedings were then terminated by an application to the election Judges to certify the result of the trial to the Speaker, and to dispose of the costs. After argument, the judgment as to costs was given by Patterson, J. A. — I think that there are abundantly sufficient reasons for not giving either party the costs of the scrutiny ; but the respondent should pay the costs up to the time when his seat was declared void. The certificate to the Speaker, after setting out the pro- ceedings and the result of the election trial, set forth the following special report : " And the said Judges further specially report that while the scrutiny was proceeding before the Registrar at the Court-house in the city of St. Catharines, some of the papers which had been procured from the custody of the Clerk of the Crown in Chancery for the purpose of the * The Report of the Commissioner appointed to investigate the theft of the ballots will be found in Ontario Sess. Paper," No. 3iJ, 187S. 33 500 PROVINCIAL ELECTIONS. [A.D. trial — namely^ some ballot papers, some counterfoils, and a voters' list — were stolen from the said Court-house, and were not recovered ; and that by reason of the loss of those papers, it was impossible for the Judges to deter- mine for whom the majority of good and lawful votes were polled at the said election." (12 Journal Legis. Assem., 1879, p. 209.) LINCOLN (2). SCRUTINY OF VOTES. Before Mr. Justice Patterson. Toronto, S6th November, 1877, to 31st July, 1878. Nathan Henry Pawling, PetUioner, v. John Charles Rykert, Respondent. Sdling and giving liquor duHnfj polling hours — Tavern-keepers — Aliens — Onus prubandi — Supporting vote bij other qualifications — Income Voters — Tendered Ballots — Parol declaration. By the 3rd sec. of 39 Vic, cap. 10, which is substituted for the 66th sec. of the Election Law of 1868, tavern-keepers, or persons acting in that capacity for the time, who sell or give liquor at taverns on polling day and within the hours of polling, are guilty of corrupt prac- tices ; but persons who treat or are treated at such taverns are not affected by the statute. (James Ford's vote). Where evidence was given of parol admissions made by certain voters, some years before the election, that they had been born in a foreign country, and also evidence that since the parol admission the voters had voted at Parliamentary elections, and had sworn to the voter's oath as to being British subjects by birth or naturalization : Held, 1. That tlie oath a' the polls could not be treated as testimony, not having been given in any judicial proceeding. 2. That by swearing at the polls he was a British subject by birth or naturalization, the voter only stated the legal result of certain facts. 3. That there was therefore no presumption of naturalization sufficiently strong to rebut the presumption of the continuance of the original statiis of alienage. (Jacob Hhenck's vote. ) Where a voter, in support of his own vote, swore that he was born in the United States but that his parents were British subjects, Held, that the whole statement of the voter must be taken, and that it amounted to this : 'I was born in the United States of British parents." (James Mulrennan's vote.) Certain aliens had taken the oaths of allegiance, &o., before a Justice of th>' Peace of a town, which oaths were administered to them in a town- ship, but within the same county : 1876.] LINCOLN (2). 501 Held, that under the Alien Act, 34 Vic, cap. 22, sec. 2, Can., the Justice of the Peace, in administering the oaths, was acting ministerially and not judicially ; and that the oaths were properly administered. (John Johnson's vote.) A voter whose qualification is successfully attacked may show a right to vote on income ; but in such case he must prove that he has complied with all the requirements of the Act which are essential to qualify him to vote on income. (James B. Oray's vote. ) A voter was assessed in two wards of a town ; he parted with his property qualification in one of the wards, but voted in such ward : Held, that the vote might be supported on the qualification in the other ward, which, if the voter had voted on it, would have made it neces- sary for him to vote in another polling division. ( William T. Gibson's vote. ) A person assessed for land he does not own, though receiving rent for it from a tenant, is not qualified to vote. (John Clark's vote.) Where a voter offered to vote at a poll, but did not ask for or put in a tendered ballot paper : Held, that the Ballot Act required the vote to be given secretly, and that the parol declaration of the voter as to his vote could not be received in order to add it to the poll. (Geo''ge Secord's vote.) The scrutiny of votes referred to on pp. 493, 499, having taken place before the Registrar, appeals from his decisions, were heard by consent before Mr. Justice Patterson. Mr. Hodgin.% Q.C., for petitioner. Mr. Be'.hune, Q. C, and the liespondent in person, for th« respondent. JAMES ford's vote. {Liquor cases.) A number of voters who had given or partaken of liquor at taverns during polling hours on the polling day were held disqualified for corrupt practices. The follow- ing.judgment was given on the appeals affecting this class of voters : Patterson, J. A. — Some of the cases in these appeals raise the question of the construction of section 3 of the Act ;^9 Vic, c. 10, which reads thus : " No spirituous or fermented liquor, or strong drink, shall be sold or given at any hotel, tavern, shop, or other place, within the limits of a polling district, during the polling day therein or any part thereof, under a penalty of $100 for every offence ; and the offender shall be sub- ject to imprisonment, not exceeding six months, at the discretion of the Judge or Court, in default of payment 502 PROVINCIAL ELECTIONS. [A.D. of such fine; and this provision is substituted for the 66th section of the Election Law of 1868." The votes which are claimed to be vitiated are of three classes : 1. Those of tavern-keepers who sold or gave the liquor. 2. Those of persons, who treated at taverns. 3. Those of persons who were treated. The first and general question, which applies to all the cases, is whether a violation of the section during the hours appointed for polling is a corrupt practice. The Act of 1875, 36 Vic, cap. 2, s. 3, made any violation of the 66th section of the Election Law of 1868, during the hours of polling, a corrupt practice. The present section is substituted for section 66. I see no reasonable grounds for reading the word " sub- stituted," in any narrow sense. The new section is in pari materia with the former one. It merely varies the terms in which the offence of selling or giving liquor on polling day is prohibited. It retains the same penalty, though it adds more stringent means of enforcing it. It does not, in terms, repeal sec. 66, and though it does not, in terms, enact that the new section is to be read as sec. 66 of the former Act, I think the expression used is at least as effec- tive as that form of amendment would have been to attach to the infringement of the substituted law all the consequences attendant upon the infringement of the original law. In other words, I think the new law must be substituted in the reading of the Act of 1875, as well as in reading the provisions for keeping peace and good order at elections, contained in the Act of 1868. It was argued by Mr. Bethune that as sees. 1 and 2 of the Act of 1875 dealt with acts expressly required to have been done with corrupt intent, we ought not to import into sec. 3, which says nothing of intent, the implication of corrupt practice derived from the Act of 1873. This argument, I think, is untenable for two reasons. The Act is not providing a general scheme, or dealing generally with any classes of offences. It is an amending Act only, 1876.] LINCOLN (2). 503 and makes amendments more or less isolated in their character. There is, therefore, no sound rule which makes it necessary to construe any particular amendment by the light of an association which we may discover here, but which may be absent when the new clause is read with the rest of the law which it amends. But it happens that these three sections are classed in the amending Act under the head of corrupt practices — a circumstance which, as shown by the present Chief Justice of Appeal in his judgment in the South Ontario cnse (12 Can. L. J. 223 ; s. c, ante, p. 455), may be taken into account in determining the immediate and special object the Legis- lature had in view ; and which, in the present case, cer- tainly does not dissociate the clause in question from the subject of corrupt practices, showing rather that in re-en- acting the law in its altered shape, it was in the contem- plation of the Legislature that, in the application of it, an offence against its provisions would be a corrupt practice, as it had been before. It is, therefore, in my opinion, clear that every tavern- keeper, or person acting in that capacity for the time, who sold or gave liquors at the tavern within the hours of polling, committed a corrupt practice. Then, as to persons who were not tavern-keepers. I have no hesitation in holding that it is the selling or giving only, and not the receiving, which is prohibited under the penalties attaching to the violation of this law. The words are plain and unambiguous, and cannot be extended to include accessories. The penalty is upon the offender ; and the offender is the person who sells or gives. In this respect, the statute differs from the English Act, 17 & 18 Vic, cap. 102, sec. 4, which makes accepting or taking an offence as well as giving. In considering whether the man who treats another is one who gives within the meaning of the section, it will be useful to refer to the old sec. 66. It provided that every hotel, tavern and shop, in which spirituous or fer- mented liquors or drinks are ordinarily sold, shall be closed 504 PROVINCIAL ELECTIONS. [A.D. during the day appointed for polling in the wards or muni- cipalities in which the polls are held ; and no spirituous or fermented liquors or drinks shall be sold or given to any person within the limits of such municipality during the said period, under a penalty of $100 in every such case. This section had been the subject of several judg- ments in contested election cases. In the South Essex case (11 Can. L. J., 247 ; ante, p. 235), the Chancellor avoided the election for a corrupt practice participated in by an agent of the candidate, by receiving a treat at a tavern during the polling hours. That deci- sion has not, that I am aware of, ever been followed ; and it was in effect overruled by the judgment of the Court of Appeal in the South Ontario case (ante, p. 420). In the last named case, the Court held that the person prohibited was the tavern-keeper, or the person acting in that capa- city. It has been .suggested by Hagarty, C. J., in his judgment given in the Court of Appeal in the North Went- worth case (11 Can. L. J., 296 ; S. C, ante, p. 350), that to confine the section wholly to the innkeeper would prevent its reaching the case of a private person who might, on the polling day, broach casks of ale or spirits for the public use of all comers ; and in the South Ontario cise, Draper, C. J. A. {ante, p. 439), did not take exactly the same view of the section as the other members of the Court, his opinion being that it extended to all persons who sold or gave liquor in a tavern. In this state of the law, the amending Act was passed. It prohibited the selling, &c., at any hotel, tavern, shop, or other place within the limits of a polling district. Now, hotel, tavern and shop are evidently places ejusdem generis, and the general words, " or other place," must therefore be confined to places ejusdem generis. In this particular, the Legislature has affirmed the existing law, as it had been construed by the Court in the South Ontario case, so far as the place of selling or giving, was concerned. There is no prohibition in the clause against selling or giving at any other place. It probably was considered 1876.] LINCOLN (2). 505 sufficient for the purposes of this enactment, and with the object of keeping peace and good order, so to limit its operation. A person giving under any other circumstances would apparently be in one of two positions, He would either do the act in perfect innocence, as in the case of giving a glass of beer or of wine to a friend dining at his table ; or he would do it, as in the suggested case of broaching a cask for all comers, or even in the case of carrying a bottle in order to treat an occasional tippler, in a way that would probably amount to bribery. The object of the enactment seems to be the same as in the former case, while it is so framed as to avoid the diffi- culties that attended the attempt to construe the earlier clause. The leading idea is that liquors kept for sale at hotels, taverns, shops, or other places whei'e liquor is usually sold, shall not be dispensed on polling days, either by selling or under the pretence of giving, The mandate points to that object ; and it cannot be disobeyed, except by the act or permission of the person in whose control the liquors are. That person is the offender, if the law is disobeyed. If he obeys the law and sees that none of his liquor is sold or given, he has done what the statute was passed to insure. It is only after a violation of it on his part that a second giving, such as occurs when one man treats another, can take place. I do not think such a second giving is aimed at by this statute, which attaches no penalty to the purchasing, or accepting, or drinking. I do not think it was ever intended by the woi'ds before me to make two offences — not one joint offence, but two separate offences — out of what is in reality but the one act. Giving is, in my opinion, prohibited to prevent an evasion of the prohibition to sell, and, like its companion word, points to the vendor only. If intended to have ^ more general application, we ■should not find it limited in its operation to the walls of the tavern, or counter of the drinking booth, or other place for the sale of liquor, as it is in this clause ; and we should find, what is here wanting, a penalty attached to accepting or drinking. 506 PROVINCIAL ELECTIONS. [A.D. Some observations which I made in the South Ontario case (12 Can. L. J., 222 ; ante, p. 452), seem as apposite to the present law as to the old see. 66 : " It would seem a faulty rule of construction, on which we should hold that the Legislature, in contemplation of a tavern-keeper dis- obeying the law by parting with liquor, meant to provide against such disobedience by the further command, that if he did so disobej', the recipient of the liquor must not give it away again under a penalty, and particularly as no penalty is attached to the act of receiving it. If such an intention existed, it should, and doubtless would, have been somewhat more clearly expressed. T!ie only other case in which it can be suggested that giving at a tavern^ &c., is the act intended, is the case of persons bringing liquor from elsewhere to the tavern and giving it away. This is too remote a possibility to require more than a bare mention, and no good reason can be suggested why a giving of that nature should not be an offence wherever committed, as well as when committed in a tavern or place where liquor is ordinarily sold." I think, therefore, that when a man treats another at a tavern, he does not give within the meaning of this penal law ; but that the offender is the inn-keeper or his sub- stitute. JACOB shenck's vote. {Alien cases.) The appeal in this and nine other cases were heard together, as involving the same question of law. The respondent had given evidence before the Registrar of a parol admission made by each voter, in some cases many years before the election, of his having been born in a foreign country. Against this admission evidence was given on behalf of the petitioner, that since the date of admission, the voter had voted at this or a former parlia- mentary election and had taken the voter's oath, which contained a declaration that he was a subject of Her Majesty by birth or naturalization. The Registrar con- sidered that the oath displaced the parol admission, and held the vote good. 1876.] LINCOLN. (2). 507 Mr. Bethune contended that the admission was primd facie evidence against the voter, and thai it was incorrect to allow the oath, as that was showing, in answer to an admission, that the party had at another time asserted the contrary : Tipperary case (3 O'M. & H. 34) ; Taylor on Evidence, s. 686 ; Brightly on Elections, 395 ; People v. Pease (27 N. Y. 45 ; 30 Barb. 588) ; Bex v. Twyning (2 B. & Aid. 386) ; Lapsley v. Grierson (1 H. L. Cases, 504); Beg. v. Inhabitants of Harhome (2 A. & E. 540) ; Chambers' Dic- tionary of Elections, 23 ; Montgomery v. Graham (31 U. C. R 57) ; Boe Hay v. ffunt (11 U. C. R. 367.) 3fr. Hodgins contended that as the admissions as to foreign birth were made long before the status of voter was acquired, it could not affect the after acquired .status. Admissions to affect a person in an office or ■ holding a title or status cannot bind until the office, title or status has vested. Voting at an election without qualification involves a criminal neglect of duty, and renders the voters liable to a penalty, and the presumption is in favor of innocence ; therefore the former parol admission cannot now be taken as against the oath and the voting : People V. J 'ease (supra) ; Brightly on Elections, 411, 413 ; Begina ex rel. Carroll v. Beckwith (1 Pr. R. 284); , Rex v. EdUh (8 East, 542) ; Fitch v. Weber (6 Hare, 57 ; s. c. 12 Jur. 76) ; The Arorn (2 Abbott, U. S. 434). Patterson, J. A. — In the case of nine voters objected to as being aliens, it was established that each one had been born out of the Queen's allegiance ; and it was then contended that the burden of proving naturalization was cast upon the supporters of the votes. This contention was resisted on the grounds that each voter had taken the oath prescribed by the statute when his vote was challenged at the poll, in which oath he had sworn (amongst other things) that he was a subject by birth or naturalization. In each case it has been proved that the voter was not a subject by birth ; therefore, it was argued, his oath must be understood as affirming that he was naturalized ; 5()8 PBOVINCIAi ELECTIONS. [A.D. and having thus professed to have voted as a naturalized subject, it is of no avail that he was not born a subject, but some evidence must be given to show that he was not naturalized. To accede to this suggestion would be unwarranted by any rule of evidence. The oath at the polls cannot be treated as testimony in this matter, either primary or secondary in its character. As a statement made by the voter in his own interest, it proves nothing for him. It derives no greater force from being made under oath ; for the reasons, amongst others, that it could not be received as secondary evidence unless it were out of the power of the person adducing it to produce primary evi- dence ; that it was not given in any judicial proceeding, the functions of the Returning Officer being ministerial only, and his duty compelling him to receive the vote when the oath was taken ; and that the adverse litigant had no opportunity to cross-examine the deponent- {Taylor on Evidence, s. 434, &c.) The other branch of the argument is to the effect that because the voter said he was naturalized, it must be assumed that he was naturalized until proof that he was not naturalized has been given. The foundation for this argument fails, because the man did not say he was natu- ralized. He said he was a subject by birth, just as much as he said he was a naturalized subject. He simply swore to his status, " a subject by birth or naturalization " — a legal result of certain facts — and we do not know what facts influenced his opinion, any more than we know whether he thought he was a subject by birth or a subject by naturalization. But granting, for argument's sake, that he had un- equivocally announced that he voted as a naturalized subject, he would still, in my opinion, be bound to rebut by evidence the inference of alienage arising from his foreign birth. No authority has been produced for the proposition that the fact of the voter assuming to vote as a natural- 1876.] LINCOLN (2). 509 ized subject raises a presumption of naturalization suffi- ciently strong to rebut the presumption of the continuance of his original status, except an American case, People v. Pease (27 N. Y. 45); but that case, even if satisfactory in its reasoning, was distinguished from those before us by the circumstances that the presumption was there acted on in favor of innocence in a proceeding against the individual whose conduct was in question. The well-known rule which, as applied to pleading, requires a party to plead the facts which are within his knowledge, and which throws on him the onus of proving such facts, unites in this case with the presumption that things continue in the same state till the contrary appears: Price V. Price (16 M. & W. 241-2). There is no presumption in this Province that, because a man who was once an alien owns and is assessed for land, he has become a subject, because aliens may hold land and must pay taxes on it. The assertion of the attacking party is, "You are an alien, which I show by proving that you were born abroad." The reply is, " I admit I was born abroad ; but I say I have been naturalized, and you must disprove that." The rejoinder may be in words from Pest on Evidence, p. 370 : " You assert that a certain event took place, not saying when or where, or under what circumstance ; how am I to disprove that, and to convince others that at no time, at no place, and under no circumstances has such a thing occurred." In another place the same learned author says (p. 374) : " There is a third certain circumstance which may affect the burden of proof ; namely, the capacity of parties to give evidence. ' The law,' says one of our old books, ■ will not force a man to show a thing which by intendment of law lies not within his knowledge.' Lex neminem cogit ostendere quod nescire prcesumitur. From the very nature of the question in dispute, all or nearly all the evidence that could be adduced respecting it must be in the possession of or easily attainable by one of the con- tending parties, who accordingly could at once put an end 510 PKOVINCIAL ELECTIONS. [A.D. to litigation by producing that evidence ; while the requiring his adversary to establish his case because the affirmative lay on him, or because there was a presumption of law against him, would, if not amounting to injustice, at least be productive of expense and delay. In order to prevent this, it has been established as a general rule of evidence that the burden of proof lies on the person who wishes to support his case by a particular fact which lies more peculiarly within his own knowledge, or of which he is supposed to be cognizant." Our statutes for the naturalization of aliens have, I believe, invariably provided means of preserving and furnishing to the alien the proof of his naturalization, and for the reception of that proof whenever the fact had to be established by evidence. If auy of these voters claim to have been naturalized under any one of our statutes, they cannot complain of being asked to produce the evidence provided by law. If they claim to have been naturalized by any other process, such, for instance, as a private Act of the Imperial Parliament, the wisdom of the rule I have quoted becomes very manifest. The statute of 1871, 34 Vic, c. 22, Can., supplies an illus- tration of what the effect of yielding to the contention in support of these votes would be. For the relief of persons who had taken the oaths required for the naturalization of aliens by former Acts, but had not procured the certi- ficates which those Acts authorized, it was enacted' that such persons should be entitled to the privileges of natural born British subjects, giving them power to procure a certificate from the functionary who had administered the oaths, or to make an affidavit of the fact of having taken the oaths ; and then, after providing for oaths being taken by aliens who had not theretofore done so, it was enacted that every affidavit taken under that Act should be filed with the Clerk of the Peace of the county, who should file it of record in his court ; and, upon its being so filed, the person making it should be entitled to the benefit of the Act and the privileges of British birth. And the Act 1876.] LINCOLN (2). 511 further provides for a certificate from the Clerk of the Peace, which should be prirm facie evidence of naturaliza- tion. We held in one case under the present scrutiny, that to obtain the benefit of this Act it was not suflicient to give oral evidence that the oaths had been taken under some former Act ; but that either the certificate of the func- tionary who administered the oaths must be produced, or the oath allowed by that statute must have been taken and filed of record. We may infer from the passing of the Act of 1871, even if we did not know it otherwise, that many persons took the oaths but did not complete the steps necessary to their admission to the privileges of subjects — and yet supposed they had done all that was required. This shows how little the fact of the claim to vote as a naturalized subject <5ould be relied on as raising a presumption of any force ; and how appropriate the rule is which I hold to apply here, and which requires the production of the evidence provided by law for the very purpose of being produced on such an occasion as this. I am of opinion that the objection to the nine votes on the ground of alienage must be sustained. JAMES mulrennan's VOTE. {Alien case.) In this case the voter was called, and proved that he was born in New York, in the United States, but that his parents were British subjects, and that he derived the knowledge of both facts from his parents. The Registrar held that the statement of the parents was good evidence of the voter's alienage, but not of their nationality, and disallowed the vote. Patterson, J. A. — I think the whole statement of the voter in his evidence must be read together, not as hear- say, but as his own admission ; and it amounts to this : I was bom in the United States, of British parents. Vote held good. 512 PROVINCIAL ELECTIONS. [a.D. JOHN Johnson's vote. (Alien cases.) The objections to this vote, and two others, are set out in the judgment. Patterson, J. A. — The votes of John Johnson, and of Lewis Tyrell and Nelson Tyrell, were objected to on the ground that they, having been aliens, had not been pro- perly naturalized, because the oaths required by the Act of 1871 (34 Vic, c. 22, s. 2, Can.) had been administered to them by a Justice of the Peace for the town of St. Catha- rines, appointed under commission for the town only, and not for the county, and had been administered to them in one of the townships and not within the limits of the town. I think the Justice had authority to administer the oaths. The statute requires the oaths to be taken before some Justice of the Peace or other person authorized to administer oaths under the Alien Act of 1i. Assem., 1879, p. 209.) 1879.] RUSSELL (2). 519 PROVINCTAL ELECTIONS, 1879. RUSSELL (2). Before Chief Justice Moss and Mr. Vice-Chancellor Blake. Ottawa, .^ Even two or three of these circumstances alone, perhaps even one, without the others, would establish agency clearly. There was no authority from the respond- ent to Maclennan to corrupt the constituency, but there was no necessity for this authority in order to render the respondent liable for corrupt acts done by Maclennan. The entrusting of large sums of money, as has been done in some cases in England, is only one of the modes of appointing a chief agent, and is not essential to such appointment. Henry Sandfield Macdonald must also be considered as an agent of the respondent. He canvassed the township with the approbation of the respondent. He drove the respondent through the township and introduced him to voters, and he did not on these occasions accompany the respondent as a mere driver, for the respondent on two or three occasions waited for his convenience, showing that his personal attendance was considered desirable. He took so active a part in the election that he considered himself justified in calling the meetings at St. Andrews. At the first meeting he suggested to those present what should be done to further the election ; at the second he examined the results of the canvass. The evidence of agency was very cogent. I think the general authority given to D. B. Maclennan and H. Sandfield Macdonald empowered them to employ 550 DOMINION ELECTIONS. [A.D. 8uh-agents, for whose acts the respondent would be liable in like manner as for their own acts. Besides Mr. D. B. Maclennan and Mr. Henry Sandfield Macdonald, the sub-agents appointed by them, and those who were appointed canvassers at the meetings in St. Andrews and in. town, must also be considered agents for whom the respondent is answerable. With reference to the first meeting at St. Andrews, it has been said that it was not regularly convened." Cer- tainly there was less regularity and formality about its calling than is usual in such cases. But this regularity or formality is by no means necessary. If the meeting assembles, and has the sanction of the candidate, this is sufficient to render the candidate liable for its acts, and those of agents appointed by it. The object cf the meet- ings at St. Andrews was to secure a canvass of the town- ship, not merely to discuss election matters. Where the number of those present at a meeting is very large, that is a reason why all present should not be considered as being appointed agents. It is clear in this case that the whole 150 or 200 present at the meeting were not appointed agents ; certain of them only were requested to canvass their neighborhoods, and, to use the words of a witness, " to interest themselves in the elec- tion." It is these persons alone who can be considered as agents. It is immaterial whether a committee be formally or informally appointed. It is sufficient if certain duties be assigned to its members and the candidate sanction this assignment of duties. Here the respondent drove out to the meetings with Mr. D. B. Maclennan, one of his chief agents. He was present during the meetings, and was there undoubtedly to further his own election. He cannot be considered as a mere spectator. Being present at the meetings, he must be presumed to have been cog- nizant of all that was done, and therefore must be con- sidered as having acquiesced in all that was done. Even if the respondent had not been present himself, the presence of his chief agents, Maclennan and Henry Sand- 1874.] COENWALL. 561 field Macdonald, would have rendered him liable for the action of the meeting. We must not look at the form but at the substance of what took place. And I think that the canvassers appointed at the St. Andrews meet- ings must be considered as agents for whom the respond- ent is responsible. The Westminster case (1 O'M. & H. 89) and the Wigan case (ibid. 188) do not apply. In those cases the associations were without doubt voluntary. As to the meetings at Maclennan & Macdonald's office in Cornwall, the persons who attended those meetings must be deemed agents of the respondent. These persons examined the voters' lists, appointed canvassers, and received reports of his canvass. The usual formalities, as to calling together the meetings, and the transaction of business, appear to have been observed, but this was unnecessary. The respondent acquiesced in the acts done. Taunton case (1 O'M. & H. 185-6); Coventry case (ibid. 107). As to the second branch of the case, namely, that relating to the commission of corrupt practices, these consist principally of acts of bribery. Bribery is not confined to the actual giving of money. Being an un- lawful act, it is to be expected that attempts will be made to conceal it from the light of day. The courts, therefore, have always examined the various acts con- nected with the transaction, to see whether there is a corrupt motive. Where a grossly inadequate price has been paid for work, or for an article, it is clearly bribery. An& in the present case several instances of such bribery occur. In considering the question of corrupt practices as aflTecting any particular election, we should also examine the whole evidence carefully to ascertain the mode and spirit in which the election contest has been carried on ; whether it has been on the whole pure and free from corruption, or whether there has been a general laxity of principle and evident disregard of the law. When the cprrupt acts are isolated much greater strictness of proof will be required. 552 DOMINION ELECTIONS, [A.D. One thing that strikes me in this case is the large sum expended by the two chief agents of the respondent, a sum averaging about $3 a head for the votes polled for the respondent. Large amounts were also paid without any express directions as to their application, amounts which would not be required for any legitimate use. In the case of Donald Miles McMillan, for example, the words used upon the money being handed to him were, " Here, you may require it." If this money were applied improperly, it must be considered that it was intended so to be applied. Again, when H. Sandfield Macdonald, having " heard that the north-west corner was corrupt," gave $140 or $150 to George McDonald, of Moulinette, to expend there, without any directions as to the mode of expenditure, the only inference must be that it was to be expended in order to corrupt. This inference is supported by the statement of George McDonald, who, on being asked why he accepted the money, replied that he was apprehensive " that the other side were going to bribe," which implies that he considered his side should do so as well: There were many similar cases in which considerable sums of money were paid without directions as to the application, but it is unnecessary to dwell upon these further than for the purpose of showing the general spirit in which the contest was carried on on behalf of the respondent. In the case of Gilbert Runions, bribery with the knowledge and consent of Henry Sandfield Macdonald, one of the chief agents of the respondent, is proved. Henry Sandfield Macdonald, when he handed the money to George McDonald, named Runions as a person to whom money should be given ; and the money was paid to Runions by G. McDonald, as Runions admits. This is the same as if H. S. Macdonald gave it himself. The evidence of George McDonald and that of Run- ions differs as to the amount paid, but this is immaterial — money w^as paid. 1874.J CORNWALL. 553 In other cases Henry Sandfield Macdonald left the giving of the money to George McDonald " on discretion." This was a direct appointment of George McDonald as agent. And in exercise of this discretion, George Mc- Donald bribed Cannon and the two Worleys. The payments by Donald Miles McMillan to the Clines and to Murray are other instances of bribery. In the case of the Clines, McMillan paid money to them, or, as he afterwards says, to one of them, nominally for the purchase of oats, but at the time of the alleged purchase no quantity of oats was named, no time for delivery was specified, no receipt for the money was taken, and no oats have, as a matter of fact, been delivered; the alleged purchase was undoubtedly a mere colorable proceeding. The fact that the Clines and Murray declared their in- tention to vote for the respondent does not affect the case. Again, the payment of $10 to Alguire by Henry Sand- field Macdonald falls within the rule of inordinate and excessive payment. Where $4 or $5 would have been sufficient, the excess must be considered as given for some other purpose, which purpose was " corrupt." The payment of $50 to the Rev. Mr. Smith, I think, falls within the rule as to " colorable charity," or •' color- able .liberality," referred to in the cases, and was therefore given with a corrupt motive. With reference to the loans of small sums to various persons, we must of coursp take into consideration that the firm of Maclennan & Macdonald was in the habit of lending small sums. But the lending of various sums, amounting -to $210, at 6 per cent., is certainly suspicious, since it is admitted- by Mr. Macdonald that the current rate was 8 per cent., and no reason is given why- 6 per cent, only was asked. I think the reasonable inference must be that the loans were made with a view to the election. It is not necessary, however, to lay much stress upon these transactions. 554 DOMINION ELECTIONS. [A.D. The loan of $150 to Depuis is very clearly a case of bribery by Duncan G. McDonald, a sub-agent. The loan was for two years, without interest, a note being given to secure repayment. The note was originally drawn payable with interest, but this was changed. Depuis says in his evidence that McDonald " got nothing but my vote for the money." Is not this a stipulation that Depuis should have the loan without interest if he would vote ? Was it not a present of the two years' interest ? A^fain, Morrisette was an active agent. He attended the meetings at Maclennan & Macdonald's office in Corn- wall. He examined the voters' lists. He had $140 entrusted to him. As to the disposition of this money he gives a very confused account, but the promise of $1 5 to Fitzpatrick's daughter was clearly an offer of a bribe. He said he would give the money if she got her father to vote, and the ofier of a bribe is equivalent to a bribe, although it requires clearer and stronger evidence to sup- port it. The payment of money by Wood to Aaron Walsh was also illegal. Here the note endorsed by Walsh was paid by him 25 years ago. He considered the payment a hard- ship, but he does not deny his liability. The fact that the money-paid by Wood was not furnished by the respondent or either of his chief agents, makes no difference. The endeavor by Wood to restore friendship was undoubtedly done to influence the vote. In the case of Alexander* McDonald, the exercise of forbearance in pressing the judgment in the hands of Maclennan & Macdonald was evidently with the view of influencing the vote. These cases of bribery are sufficient to render the elec- tion of the respondent void, and I shall only make a few remarks on the other circumstances disclosed in evidence. The case of Charles MuUins was a very gross case. A stratagem was used in inducing him to get into the sleigh driven by Grant, and in spite of his remonstrances he was driven into the country and thereby prevented from 1874.J CORNWALL. 555 voting. I consider the conduct of Donald McMillan — justice of the peace, who was present, and knew that an outrage was about to be committed and yet did not in- terfere^ — as deserving of the strongest censure. The case is as gross a one as can well be conceived. As to the hiring of the special train, I think there was no personal impropriety in the case. A mere hiring of a conveyance to carry voters is not an act wrong in itself, and would not be so at all but for the express provisions of the law. And I am inclined to think that the hiring in this instance does not fall within the meaning of the law, and that it is the same as the case of one sending his own carriage. I am not required in this case to say whether the cor- ruption was so general as that the election should on that account be set aside, but an election may undoubtedly be void on that ground. Bradford case (1 O'M. & H. 40). I exonerate the respondent personally from any com- plicity in the corrupt acts committed ; but I think it my duty to say that I can scarcely conceive that Mr. D. B. Maclennan and Mr. H. S. Macdonald would have acted in the manner in which they appear to have acted at this election if they had' appreciated the gravity of the acts committed by them. My judgment, therefore, is that the election is void. Costs to be paid by the respondent. I do not think that the fact that the personal charges against the respondent have failed should alter the usual rule that costs follow the event. The expense of the trial has not been increased by these personal charges, and they have not been put in wantonly, in order to wound the feelings of the respondent ; if they had been, that might have altered the case. These charges also are usual, and are excusable on the ground that the opposite party is generally ignorant of what is done by the respond- ent ; and in order that evidence aflfecting the candidate personally may be given, these charges must be made in the petition. (8 Commons Journal, 1875, p. 3). 556 DOMINION ELECTIONS. [A.D. SOUTH RENFREW. Before Chancellor Spragge. Rknfkkw, 9ih September, 1874- William Bannerman, Petitioner, v. John Lorn McDouGALL, Respondent. Costs — Preliminary inquiry — Excessive expenditure. The respondent sought to establish, on an inquiry under a preliminary objection, that the petitioner (the opposing candidate) had been guilty of bribery, and was therefore disqualified as such. The inquiry was not concluded, as during its pendency the English Election Courts held that bribery would not disqualify a petitioner ; but so far as the ' evidence went; while it disclosed such a large expenditure of money by the petitioner and his agents as to lead to the suspicion it was not all expended for the legitimate purposes of the election, it did not show bribery by the petitioner. The respondent then consented to his elec- tion being avoided on the ground of bribery by one of his agents with- . out his knowledge or consent : Held, that the general rule as to costs should preva;il, and that the respondent should pay the costs of the inquiry as well as the general costs of the cause. Semble, if evidence showed that corrupt practices had been committed by a respondent, it would be the duty of the Court so to adjudicate whether the petitioner was willing to withdraw the charge or not. The petition contained the u«ual charges of corrupt practices. The respondent set up, by way of preliminary objec- tion, that the petitioner had been guilty of bribery, and therefore had no status as a petitioner. Evidence was taken at Brockville in support of this allegation, and showed a large expenditure of money by the petitioner and his agents at the election complained of. It how- ever became unnecessary to proceed with the inquiry, as, pending the investigation, the English Court of Com- mon Pleas, in the Launceston case, Drinkwater v. Deakin (L. R., 9 C. R 626), held that even if bribery were proved against a candidate-petitioner, he was not disqualified as a petitioner. The trial was then proceeded with at the town of Ren- frew. Mr. McCarthy, Q.C., for petitioner. Mr. Bethune for respondent. 1874.] SOUTH RENFREW. 557 After the case had been partially heard, the respond- ent's counsel said after consulting with his client he had found that there was one case of corrupt practice com- mitted by an agent without the knowledge and consent of the respondent, but for which the respondent was respon- sible to the extent of his seat, and which would avoid the election ; but he did not admit any act of personal bribery. Counsel for the petitioner then stated he would not press the charges of personal bribery, and would accept the avoidance of the election. Spragge, C. — The case at present does not show any personal act of corrupt practice on the part of the re- spondent. If I thought it did, I should feel it my duty so to adjudicate, whether the petitioner was willing to withdraw his charge on that head or not. But the ques- tion of costs still remains to be settled. Mr. Bethune contended that as far as the preliminary objection is concerned, there was ground for the inquiry, as it was proved in Brockville, by petitioner's own evidence, that there had been spent of his and his partner's money about $3,600, making an average of $6 for each vote cast for petitioner. The Election Court at Toronto have acted on the rule of giving no costs to either party in interlocutory proceedings, as the law was unsettled in this respect. On these grounds he asked that each party should pay their own costs of the pre- liminary objection. Mr. McCarthy contended the inquiry at Brockville was not concluded, and it was not known whether the charges against the petitioner were true or false. It would be contrary to every principle to assume the petitioner guilty before the investigation was determined, and in effect to punish him as in the way the respondent asks, by depriv- ing him of his costs. But had the investigation closed, and petitioner's status not been affected, he would, of course, have been entitled to his costs. It was not pro- secuted, because the respondent discovered, after setting 558 DOMINION ELECTIONS. [A.D. up the preliminary objection, that as a matter of law, even if true in fact, it was insufficient. It would be an extraordinary result, that a party pleading, as it were, a special defence, which he admitted was bad in law, and which had not been proved in fact, should be relieved from the costs of the proceedings. According to the Southampton case (1 O'M. & H. 221 to 225), it appears that the successful establishment of a recriminatory case does not debar the petitioner, even when he is the can- didate, from prosecuting the petition so far as unseating the sitting member, but only prevented the unsuccessful candidate from being seated, and here the seat was not claimed. Spragge, C. — It is conceded by the learned counsel for the respondent, that as to the general costs there is nothing to take the case out of the ordinary rule, that the costs follow the event ; but he contends that an ex- ception should be made in regard to the costs of the inquiry which took place upon the preliminary objection of the respondent, that the status of the petitioner was annihilated by reason of his being guilty, as was alleged, of personal bribery. It is conceded now that this pre- liminary objection was untenable as a matter of law, but it is urged that this was an unsettled point when the exception was taken and the inquiry had, and that the evidence showed that there was probable ground for the objection. The evidence was taken before me, and having the evidence here, and having again read it over, it appears from it certainly that the expenditure of money by the petitioner and his agents was very considerable — so con- siderable as to leave room for the suspicion that it was not all expended for the legitimate purposes of the elec- tion. But what was charged went beyond this — it was a charge of personal wrong on the part of the petitioner, which, however, was not established. There have been cases where the usual rules have been departed from, but these cases, however, are few, and the 1874.] SOUTH RENFREW. 559 general rule is now rarely departed from, unless under very exceptional circumstances. In this case, at any rate, they do not appear to apply, and never have been applied to such a case as this. These costs have been incurred in an inquiry, not upon- the merits of the pe|;ition, but at the instance of the re- spondent to intercept an investigation into the merits of the petition on the ground of demerit in the individual by whom the petition was presented, and it is now con- ceded that the petitioner rightly succeeds. This is not a case, apart from the question of law, in which a party can properly claim exemption from the general rule. I do not say what might have been the case if a clear case of personal bribery had been made out against the petitioner. It might have been proper to re- fuse him costs in that case, but such a case has not been made out. The preliminary objection was wrong in point of law. Its purpose to intercept inquiry does not com- mend it as a proper proceeding,' and it was deficient in proof of the fact alleged. My opinion, therefore, is that these costs should not be excepted from the general costs to be paid by the re- spondent. (9 CoTnmons Journal, 1875, p. 4.) 560 DOMINION ELECTIONS. [A.D. LONDON. Before Chief Justice Hagarty. London, 7th to 10th September, 1874. George Pritchard, Petitioner, v. John Walker, Respondent. Excessive expenditure — Briery — Circumstantial evidence — Respondent's dis- claimer of corrupt practices — Agency — Appeal — 37 Vic., c. 10, s. 35 — Disqualification of respondent. The evidence showed that extensive bribery was practised by the agents of the respondent and by a, large number of persons in his interest, but no acts of personal bribery were proved against him, and he denied all knowledge of such acts. It was in evidence that he had warned his friends, during the canvass, not to spend money illegally. The Judge [duUtaTite) held that no corrupt practice had been committed with the respondent's knowledge or consent, and avoided the election for corrupt practices by the respondent's agents. On appeal to the Court of Common Pleas, it was Held, I. that the circumstantial evidence in this case was sufficient to show that corrupt practices had been committed by the respondent's agents with his knowledge and consent. 2. That wilf u 1 intentional ignorance is the same as actual knowledge. 3. That the assent of a candidate to the corrupt acts of his agents may be assumed from his non-interference or non-objection when he has the opportunity. And such candidate's knowledge of and assent to the corrupt acts of his agents, may be established without connecting him with any particular act of bribery. (24 0. P. 434.) The petition contained the usual charges of corrupt practices. Mr. Robinson, Q.C., and Mr. Street, for petitioner. Mr. R. A. Harrison, Q.O., and Mr. A. F. Campbell, for respondent. The evidence disclosed that about $9,000 were expended by the respondent and his agents at the election. The total vote was 2,477, of which the respondent received 1,269, and Mr. Carling 1,208. The facts of the case are set out in the judgment of Hagarty, C. J., reported in 10 Canada Law Journal (1874), p. 281 ; and in 9 Commons Journal, p. 24. At the close of the evidence, and after the argument of counsel. 1874.] LONDON. 561 The Chief Justice declared the election void on the ground of bribery by agents of the respondent, but (dnibitante) without his knowledge or consent ; and he reported that corrupt practices had extensively prevailed at the election. From the above judgment the petitioner appealed to the Court of Common Pleas under the 37 Vic, c. 10, s. 35, on the ground that upon the law and evidence the learned Judge should have declared the respondent guilty of corrupt practices, and should have found that corrupt practices had been proved to have been committed by and with the knowledge and consent of the said respondent at the said election. The respondent filed a cross appeal. The Court held that the circumstantial evidence set out in the case was sufficient to show that corrupt practices had been committed by the agents of the respondent and with his knowledge and consent, notwithstanding his dis- claimer. That wilful intentional ignorance is the same as actual knowledge. That the assent of a candidate to the corrupt acts of his agents may be assumed from his non- interference or non-objection when he has the opportunity, and that io is sufficient to establish such candidate's know- ledge of and assent to the fact that his agents used bribery to procure his election without connecting him with any particular act of bribery. The judgment of the Court is reported in 24 C. P., 434. (9 Commons Journal, 1875, p. 24.) 662 DOMINION ELECTIONS. [A.D. WEST NORTHUMBERLAND. Before Chancellor Spragge. CoBOiTEG, S5th and 26th September, 1S74. "William Lemuel Burnham et al., Petitioners, v. William Kerr, Respondent. Respondent's admission of corrupt practices by agents — Inqmsitoriai proceedings — Costs. • The respondent, a week before the trial, served a notice on the petitioner admitting bribery by one of his agents, and notifying the petitioner not to incur further costs. At the teial the respondent, pursuant to the notice, gave evidence of bribery by an agent, which the Court held sufficient to avoid the election. The petitioner then contended that he had a right to show that corrupt practices had extensively prevailed, and that the resppndent had been personally guilty of corrupt practices. Held, that the functions of the Court were judicial and not inquisitorial, and that no further evidence should be received on the issue as to the avoidance of the election on account of bribery by agents. But if incidentally it should appear, in the inquiry as to the personal charges against the respondent, that corrupt practices extensively prevailed, the same would be certified in the report to the Speaker. The petitioners then examined witnesses on the personal charges, which were not proved, and in determining the question of costs, it was Held, that as the petitioners might have come to court on the notice served by the respondent, and have asked to have the election set aside, and as they had attempted, but had failed, to establish the per- sonal charges, the respondent should only pay such costs as he would have had to pay had the petitioners accepted the notice served upon them before the trial. The petition contained the usual charges of corrupt practices. Particulars were served by petitioners of over one hundred personal charges against respondent. Prior to the trial, and on the 19th September, the respondent caused the following notice to be served on the peti- tioners' solicitors : " Take notice, that on the trial of this petition, the respondent will admit the following facts, that is to say: That a person who, according to the common law of Eng- land in reference to the election of members of Parlia- ment, would be held to be an agent of the respondent at the said election, did, before the said election, give a sum of money to a voter to induce liim to vote for the respond- ent, but that this was done without the knowledge and consent of the respondent. 1874.] ■ WEST NORTHUMBERLAND. ' 563 " And further take notice, that in so far as the peti- tioners seek to void the said election on account of the acts of agents of the respondent, the respondent will, if the petitioners incur any further expense or protract the trial of the said petition in so far as corrupt practices by agents are concerned, ask that the petitioners pay any costs which may hereafter be incurred. " And further take notice, that the respondent is ready and willing, and hereby offers, to cause to be served, at his expense, notices of countermand of the subpoenas served upon witnesses in so far as corrupt practices by agents is concerned, in order that the conduct money paid to the said witnesses may be returned by them to the peti- tioners, and in default of the petitioners countermanding the services of the said subpoenas, the respondent will claim to be relieved of the expense of the attendance of the said witnesses at the trial of the said petition. " And further take notice, that the respondent denies that he was personally guilty of any corrupt practice whatever at, before, or after the said election, or that any corrupt practice was committed at, before, or after the said election on his behalf by or with his knowledge and consent. " And take notice, that if the petitioners further insist upon the said charges of personal corrupt practices against the respondent, the respondent will at the trial claim to be relieved from the payment of the costs of the petition, which may be incurred in consequence of the petitioners further pressing the said charges." The petitioners served no counter notice, but proceeded to trial. Dr. McMickael, Q 0., for petitioners. Mr. Bethune for respondent. At the opening of the court, counsel for the respond- ent proved service of the notice, and contended that after the notice it was not necessary for the petitioners to pro- 37 564 DOMINION ELECTIONS. - [A.D. ceed further, as the Court would not act as a court o£ inquisition ; and this notice was equivalent to the with- drawal of the plea in a Wisi Prius record, or of the answer of a defendant in Chancery. He referred to the South- ampton case (1 O'M. & H. 227); Rogers on Elections, 12th Ed., p. 355; Glengarry case (ante, p. 8); Brough on Elec- tions, 20; Guilford case (1 O'M. & H. 15) ; Leigh & Le Marchant, 123. He admitted the election was void on account of bribery by an agent without the knowledge of the respondent. The Chancellor : I will require evidence of the par- ticular case of bribery by the agent. The respondent then called a witness who was admitted to be an agent of the respondent, and who proved an act of bribery. The Chancellor held that sufficient evidence had been given, and that the election must be declared void. Dr. McMichael, for the petitioners, contended that under 36 Vic, c. 28, s. 20, he should be allowed to give evidence that corrupt practices extensively prevailed at the election. The petition so states, and in the interests of public morality and public policy the petitioners should be allowed to go on and have a full inquiry. The Chancellor ruled that he would follow the decisions of Willes, J., in the Windsor case (1 O'M. & H. 6), Guilford case {ibid. 15), and Southampton case (ibid 227) ; and Grove, J., in the Taunton case (2 O'M. &. H 74), and Wakefield case (ibid. 108). The functions of the Court are judicial and not inquisitorial ; and any evidence to try the issues would be received, but not in any way contrary to the rulings of the learned Judges referred to. If incidentally, in the course of the inquiry as to the personal charges, it appeared that corrupt practices had extensively prevailed at the election, he would certify that fact in liis report to the Speaker. 1874.] WEST NORTHUMBERLAND. 565 The personal charges against the respondent were then proceeded with — the petitioners examining 36 witnesses in support of the charges. After the argument of counsel, the following judgment was delivered. "Spragge, C. — The case involved among other things serious charges against the respondent, and may be divided into three branches. 1st. A charge that there had been such bribery by agents without the knowledge of the respondent as would void the election. 2nd. Such corrupt practices as, under sec. 18 of the Act of 1873, would disqualify the respondent personally. 3rd. Exten- sive corrupt practices, which should be certified under sec. 20, sub-.«ec. c. As to this latter point I am unable to certify on the evidence before me that extensive corrupt practices had prevailed, under sub-sec. c. of sec. 20 of the Act of 1873. With reference to the first branch, I consider the notice given by the respondent on the 19th of September was suiScient to render it unnecessary for the petitioner to prove a case merely for avoiding the election. It was put in a technical form and couched in the language used by judges in similar cases. If the petitioners sought nothing more than to avoid the election, they were safe in coming into court without further evidence. When the point of going farther was raised it was a new one, but I con- sidered that the cases had decided that the Court was not one of inquisition. This was not a question between the parties — it was a question of public policy for the discre- tion of the Court. I had. asked, when the matter was pressed upon me, cui bono ? In the English cases the Judges decided whether they would or would not go further after the issue was proved. The language of the Act of 1873 showed that the Legislature here had also made a distinction. Besides, it is not apparent that it would be wise or right to go into the inquiry. There was no grievance to the petitioners ; it is no more their affair than that of the rest of the Province. 566 DOMINION ELECTIONS. [A.D. The other question remained as to the personal charges sought to be fastened upon the respondent. It was not attempted to be denied that on this ground the petition- ers had a right to go into all the facts to establish their case ; and if in doing so evidence of extensive bribery had incidentally transpired so as to require a certificate under sec. 20, sub-sec. c, I would have so certified. In the Corn- wcdl case {ante.,-Tp- 547), I decided not to certify, and I still consider that I decided rightly. The Taunton case (2 O'M. & H. 74) also supported this view. Then as to the personal charges, it was alleged that there had been such extensive bribery that the respondent either must have known of it or wilfully closed his eyes to it. About $1,600, not more than $1,700, appeared by the evidence to have been spent. This by tacit consent was placed in the hands of a gentleman, and he, wisely or unwisely, had hid the amount from the respondent. It was said that the expenditure had been legitimate. Even if the respondent had known of it, it was necessary to prove that it could not, from ^its amount or otherwise, have been used legitimately. There was not a tittle of evidence to that effect. But it was not necessary to go so far, as the respondent did not know of the amount. If it had been shown that the amount had been so large that the expenditure must have been corrupt, and that the respondent, if he had known it, must have wilfully shut his eyes to the facts, I would have been disposed to hold the respondent responsible ; but the facts did not call for that. It was not brought home to the respondent that he knew of more than his own $250 and his brother's $300, and that it was likely a further contribution would be made. This was far short of the evidence required to make the respondent personally liable. Next, as to the other personal charges. Mr. Lachlan's case would have been serious if it could have been sup- ported ; but, as Dr. McMichael frankly admitted, it could not. The demeanor of the witness, his unsatisfactory 1874.] WEST NORTHUMBERLAND. 567 replies, and the flat contradiction by others o£ material parts of his evidence, prevent his case having any weight. As to cases of this nature, 1 may remark that it would be wise in candidates to refuse to have anything to say to the voters during elections about money matters. There is a tendency during elections to press doubtful claims for settlement. The Court should be satisfied in such cases clearly. ' Logically, perhaps, if a case were proved, the con- sequences would follow as stated in the Act ; but the Courts do draw a distinction and hesitate longer where the consequences were serious. I must therefore adjudge that the personal charges have not been proved in such a way as to justify me in reporting them as established. As to what might have been proved, I can only gather that there were cases of suspicion and of bribery incidentally revealed.' The re- spondent at the beginning of the trial admitted one case of bribery by an agent. This was a law absolutely necessary to be passed. The practice of bribery prevailed throughout the country to a great extent. It was a demoralizing practice to the briber, the person bribed, the constituency, and the can- didates. The effect might be, if permitted, to place rich and dishonest men in Parliament, to the exclusion of the honest poorer men. It was a great public wrong and in derogation of the franchise, which had been termed a public trust. As to costs. The petitioners might have come to court on the notice served by the respondent, and asked to have the election set aside. They did not choose to do so; they went into evidence, but have failed to establish their personal charges against the respondent. They have established cases of suspicion or of imprudence. The costs of this attempt, which is a failure, should not fall upon the respondent. The respondent should pay the- costs which he would have had to pay if the petitioners 568 DOMINION ELECTIONS. [A.D. had taken the course indicated. There should be no costs to the respondent against the petitioners. (9 CoTTiTnons Journal, 1875, p. 7.) NIAGARA. Before Chief Justice Hagarty. NiAGAEA, SOth to SSnd October, 1874- Neil Black et al., Petitioners, v. Josiah Burr Plumb, Respondent. Excessive expenditure — Respondent's disclaimer of corrupt practices — Bribery — Agents — 8iih-Agemts — Costs. The respondent, in a constituency where 642 persons voted, received 336 votes, and his election expenses were about $2,000. The money was entriiated by the respondent to one G. , with a caution to see that it was used for lawful purposes only. About $1,200 of this money was given by G. to one W., who distributed it to several persons in sums of $40, $100, $200 and $250. No instructions as to expenditure were given by G. to W. , or by W. to the persons amongst whom he distributed the money ; and bj' the latter several acts of bribery were committed. The respondent publicly and privately disclaimed any intention of sanctioning any illegal expenditure ; but made no inquiries after the election as to how the money had been spent until a week or two before the election trial. He denied any act of bribery, direct or indirect, or any knowledge thereof ; and no proof was given of a personal knowledge on his part of any of the specific wrongful acts or_ payments proved to have been committed by the persons amongst whom his money had been distributed. Held, I. That under the peculiar circumstances of the respondent's can- vass, and on a review of the whole evidence, the respondent's emphatic denial of any corrupt motive or intention should be accepted. 2. That the persons amongst whom the respondent's moneys had been distributea by W. , and persons acting under them, were sub-agents of respondent, and that their corrupt acts avoided the election. Semble, that no limit can be placed to the number of parties through whom the sub-agency may extend. The election was set aside with costs, except as to the costs of certain charges which were unwarranted. A party, though successful, is not entitled to the costs of all the witnesses he may subpoena, nor is the fact of them being called or not called the test of such costs being tax- able. The petition contained the usual charges of corrupt practices. 1874.J NIAGARA. 569 The total vote at the election was 642, of which the respondent received 336, and Mr. John M. Currie 306. The material facts disclosed at the trial are set out in the judgment. Mr. Hodgins, Q.C., and Mr. Gurrie, for petitioner. Mr. Robinson, Q.C., and Mr. O'Brien, for respondent. Hagakty, C. J., C. P. — This constituency consists of the town and township of Niagara. Six hundred and forty- two persons voted, and the respondent had a majority of thirty. The respondent agreed to come forward on the 12th January ; the polling took place on the 29th of January, 1874. The respondent is chairman of the Steel Works Company, of which Mr. Gunn is secretary and acts as local treasurer. Gunn was appointed on the Isb of January, and only came to reside in Niagara on the loth of January last. There is no bank agency or express office in Niagara. On January 26th the respondent sent Gunn to Toronto with a letter to Mr. Gzowski, a stockholder and director of the company. The respondent told Gunn that money would be wanted for the general purposes of the election, and also for his own purposes and for the Steel Works. He had men then at work on his own premises. Gunn presented the letter to Mr. Gzowski, who went with him to the Montreal Bank and spoke to the manager, who then gave Gunn $1,992.50, and he informed respondent thereof. The latter authorized Gunn to disburse money required for the election, cautioning him distinctly to see that none of the money was used for anything but perfectly lawful purposes, and on several subsequent occasions said the same thing. The respondent was very busy about the election, and nothing whatever seems to have taken place between them as to the subsequent expenditure. Gunn knew hardly any one in Niagara, and next day, at the sugges- tion of one Burke and others, handed $1,200 of this money 570 DOMINION ELECTIONS. [A.D. to Dr. Wilson, a well-known physician here and respond- ent's medical adviser, thinking he was the proper person to deposit it with for lawful expenses, taking no receipt. Gunn says he had no idea or intention that the money should be improperly spent. " He afterwards paid several hundred dollars more for various expenses — printing, and some very heavy livery • bills. He gave $100 back to respondent, and after paying all the calls upon him, had a balance of over $100 on hand, which he applied to other matters not connected with the election. Dr. Wilson admits the receipt of this money, under- standing that it was to be used for election purposes, not unlawfully ; and he says he does not know whose money it was. The doctor sent $250 of this money to one Lowry, in the St. David's division, sending it in an envelope by one Murphy, without any letter or message, simply ad- dressed to Lowry. Murphy swears he gave it to Lowry, not knowing there was money in it. Wilson also gave $250 to Thomas Hiscott, in the division of Virgil, with- out any instructions ; and also $200 to Longhurst, in the remaining (Queenston) division. He also paid $100 to Thomas Burke, $40 to J. T. Kerby, for expenses, and small sums to others. One Kennell, a non-elector, was paid $100 for services, and Wilson returned $28 or $29 to Gunn. Dr. Wilson says he did not intend to use the money for improper purposes, as he is opposed to such. He thought the parties to whom he paid it were responsible persons. He gave no instructions to the persons to whom he gave the money how they were to use it, nor did he ask how it was used. With the money so received, Longhurst, as his evidence shows, committed several clear acts of bribery and disposed of some of the money in a most suspicious way, giving his nephew, a voter, $60 of it, telling him to do as he liked with it, meaning about the election ; and $70 to another man, much in the same way, never asking any account of it. 1874.] NIAGARA. 571 Out of this $250 given to Lowry he returns $65. He says he paid one Stuart after the election, for lawful expenses, horse hire, lights and fuel, $130, but he can tell nothing about whether the claim was real or false, or any- thing about this man Stuart. Lowry, in my judgment, committed at least one act amounting to bribery in Mrs. Hanniwell's case. In the third case, that of the money given to Hiscott, for the Virgil division, one Walter Thompson says that he found $250 in an open box in his stable. Just before he saw Hiscott standing in the road, and no doubt the latter placed it there. This money Thompson divided amojQg five or six people the night before the polling, telling them to go to work at once. He made no inquiry how it was spent, nor was any attempt made to prove that it was spent honestly. Bribery was also committed' by Robert Best to the extent of $40, but I do not consider that the respondent was in any way affected by it. The respondent was examined and gave a full account of his candidature. He said from the beginning he was determined to make or sanction no illegal expenditure, and repeatedly announced this, his resolution, both pub- licly and privately (in this he is fully corroborated) ; that this was his first experience in elections, and he had no idea of the costs. There were certain charges made against him as to transactions in Albany, which he found it absolutely necessary to refute publicly before the electors, and in the short space before the polling he spent three days in the United States getting evidence, and had to spend a great deal in printing. There was no local paper or printing office, which caused more expense. His whole expenses, he said, were between $2,00r and $2,100, $1,800 being spent through Gunn. He himself paid a St. Catha- rines paper for printing in April last $100, a shorthand reporter $50, and necessary telegraphing from $75 to $100. His personal expenses were under $5. 572 DOMINION ELECTIONS. [A.D. He denied any act of bribery, direct or indirect, or any knowledge thereof, and as to treating, he only spent 70 or 80 cents, and that I think was not for any purpose or motive connected with the election. No attempt was made to prove any personal knowledge on his part of any of the specific wrongful acts or payments. He says that until quite lately, in fact the last week or two, he did not believe the petition would be proceeded with, and never, till he found it was really coming to trial, did he make any inquiry as to the charges. He and Gunn both state that it was only within this period that he was made aware how Gunn had disposed of his money. He never suspected or knew that these sums were paid to Dr. Wilson, or dis- posed of by him as proved. Be accounts for his ignorance by stating that he had perfect confidence in Gunn's intelligence aud integrity, and having given Gunn explicit instructions not to spend any money illegally, he did not think that anything was wrong ; that his cash trans- actions were very large, and that his general habit was not to close up or balance his accounts till the end of each year, and so he had not yet examined how the cash stood with Gunn. When he discovered the amount that had actually been expended he says he was much surprised, and thought it was altogethcB too large. I think the respondent, under the peculiar circum- stances of his canvass, has satisfactorily accounted for his not having personally superintended Gunn's expenditure during the election. On a review of the whole evidence, I see no reason to doubt the respondent's very emphatic denial of any corrupt motive oi intention. I accept his declaration that he entered into the contest intending to spend no money illegally, and that he was in no way cognizant of any illegal act. It remains to be considered whether his election is to be avoided for the undoubtedly corrupt acts of some of his friends. 1874.J NIAGARA. 573 Assuming for argument's sake that neither Gunn nor Wilson actually intended to violate the law, I cannot conceive how they could have taken any course so cal- culated to arouse suspicion, and to make what they say was meant to be right appear to be wrong, as the course they did adopt. The respondent trusts Gunn with the disbursing of his moneys. The latter, on somebody's suggestion, hands $1 ,200 of it to Dr. Wilson in the vaguest manner, giving no directions, and never inquiring as to its employment. If he made Wilson the paymaster, it is not easy to see why he did not refer parties coming with claims for lawful expenses to Wilson. He paid them him- self, without inquiring whether the large sum given to Wilson was or was not exhausted. He never asked for an account from Wilson, but let him do as he pleased. I look upon the relation of both Gunn and Wilson to the respondent in the same light, and I think the latter is as clearly re.sponsible for what Wilson did as if Gunn had done the same act — when Wilson gives to Longhurst (for example) $200 to use as he might please, about the elec- tion, of course in the promotion of respondent's interests. With part of this money Longhurst commits several clear acts of bribery. My strong impression is that the agency continues under these circumstances, and the respondent's election must be affected thereby. The same might be said in Lowry's case and in Hiscott's, whom Dr. Wilson was pleased to trust with $250 for the Virgil division, to be expended as he pleased. The placing of it in Thompson's stable, to be found by the latter, can hardly be referable to a transaction intended to be honest; and the subsequent' distribution of it by Thompson raises the gravest suspicion that the whole proceeding was intended to be an evasion of the law, and resulted in an illegal expenditure. If I do not hold the agency to continue in this case, I think I would be, as far as in me lies, rendering a whole- some law inoperative, and opening a wide door to corrupt acts. 574 DOMINION ELECTIONS. [A.D. The Bewdley case (1 O'M. & H. 18), I think, strongly supports this view. Sir Colin Blackburn's judgment is very explicit. There the respondent deposited a large sum in the hands of one Pardoe, directing him in his letter to apply the money honestly, but not exercising, either personally or otherwise, any control over the manner in which this money was spent, etc.; not, in fact, knowing how it was spent. He then says: " I can come to no other conclusion than that the respondent made Pardoe his agent for the election, to almost the fullest extent to -^hich agency can be given. A person proved to be an agent to this extent is not only himself an agent for the candidate, but also makes those agents whom he employs. An agent employed so extensively as is shown here makes the candidate responsible not only for his own acts, but also for the acts of those whom he, the agent, did so employ, even though they are persons whom the can- didate might not know, or be brought into personal contact with. The analogy that I put in the course of the case is a strong one ; I mean that of the liability of the sheriff for the under-sheriff", when he is not merely responsible for the acts which he himself has done,'but also for the acts of those whom the under-sheriff employs; and not only responsible for the acts done by virtue of the mandate, but also for the acts done under color of the mandate, matters which have been carried very far indeed in relation to the sheriff." I think these principles must govern this case. I do not think that bribery prevailed extensively ; most likely large portions of the money proved to have been paid to certain individuals did not go beyond the payees. I shall report that the respondent was not duly elected and that his election is void, and that he must pay the costs of the petition ; that no corrupt practices took place with his assent or knowledge ; and that corrupt acts were committed by William Longhurst, David Lowry and Robert Best. I am inclined to look leniently on the 1874.J NIAGARA, 575 loans made by Best. He very frankly told his story, and honestly put the worst construction on what he did, although many others would probably have insisted it was all right. After much consideration, I have decided not to report Walter Thompson or Murray Fields, but I think the disposition of the money they received was most reprehensible. It was urged upon me by Mr. Robinson that I should make some special order as to the costs of certain witnesses said to have been subpcenaed to be in court, but who were not called by the petitioners. I do not see that I have any material before me to warrant my making any order now beyond directing, as I do direct, that no costs be allowed petitioners for any witnesses siimmoned or in attendance, respecting any charge of undue influence, threatening with loss of office, salary or income, or the opening or supporting houses of entertainment for the accommodation or treating of electors, as I consider that the case disclosed no such practice, and that such charges were unwarranted. In my view of the law, I think it is in the province of the taxing master, after hearing both parties, to decide what witnesses to allow or disallow. Such is his duty, I think, in ordinary cases. It does not follow because a party is successful and entitled to the general costs of the cause, that he is enticed to the costs of all the witnesses he may subpoena ; nor is the fact of their being called, or not called, the test of their being reasonably taxable. I cannot conclude without expressing my strong sense of the admirable manner in which the case has been con- ducted on both sides, and the total absence of all irrele- vant statements, and of any undue waste of the public time. (9 Commons Journal, 1875, p. 78.) 576 DOMINION ELECTIONS. [A.D. SOUTH HURON. Before Mr. Justice Galt. GoDBRiCH, ZOth and Slst October, 1874. David Hood Ritchie, Petitioner, v. Malcolm Colin Cameron, Respondent. Excessive expenditwe — Subscriptions to churches — Appeal Jrom Election Judge — Gonfiicting evidence — Costs. The respondent was charged with using means of corruption at his election (1) by giving up a promissory note and also $20 to one M., on condition of M. and his sons voting for him ; the charge depended upon the contradictory oaths of M. and the respondent ; (2) by giving a large subscription to an election fund, some of which was expended for illegal purposes ; and (3) by subscriptions to churches. The respondent denied any corrupt motive in these subscriptions. The Election Judge, on the evidence, found that the respondent was not personally guilty of corrupt practices, but he avoided the election on the ground of bribery by agents. From the judgment on the personal charges the petitioner appealed ; but the Court, on a review of the evidence, declined to set aside the find- ing of the Election Judge. The appeal was dismissed without costs, as there were strong grounds for presentmg it. Per Hagarty, C. J. — Candidates and agents should select less suspicious seasons than election times for exercising their liberality towards charitable and religious objects. (24 C. P. 488). The petition contained the usual charges of corrupt practices. Mr. R. A. Harrison, Q.C., for petitioner. Mr. Bethune for respondent. Evidence was given of bribery by agehts, and of sub- scriptions to an election fund and to churches by the respondent. The principal facts of the case are set ou in the report of the case in the appeal to the Court of Com- mon Pleas, 24 C. P. 488. At the plose of the evidence, judgment was given as follows : Galt, J. — I declare the election void on the ground of bribery by agents. I find that the respondent was not himself guilty of corrupt practices. I order the respond- ent to pay the costs of the petitioners. 1874.] EAST NORTHUMBERLAND. 577 The petitioner appealed to the Court of Common Pleas against the finding on the personal charges, on the ground that the respondent had used means of corruption, and had been guilty of corrupt practices by giving money, and making promises of same, and by subscribing money to churches and colleges with intent to corrupt or bribe electors to vote for him, or to procure his election. The Court, while intimating that had the finding of the learned Judge been otherwise it would not have in- terfered, declined to set aside the judgment of the Elec- tion Judge, and dismissed the appeal without costs, as the petitioner had strong grounds for presenting the appeal. (9 Gommons Journal, 1875, p. 30.) EAST NORTHUMBERLAND. Before Chief Justice Hagarty. CoBOUEG, S7ih October, 1874. Robert Gibson, Petitioner, v. James Lyons Biggar, Respondent. ComTnittees — Agency — Bribery — Particulars — Costa. The respondent nominated no committees to promote his election ; but he was aware that committees were acting for him in each municipality. On one occasion he went to the door of one of the committee rooms, and left some printed bills to be distributed. One P., who attended the meetings of this committee, and who said he was considered on the committee, committed'an act of bribery. Held, that the committee were agents of the respondent, that P. was a member of the committee ; and an act of bribery having been com- mitted by him, the election was avoided. ^ The particulars not having been properly prepared, the petitioner, while obtaining the costs of the proceedings, was disallowed the costs of the particulars. The petition contained the usual charges of corrupt practices. Mr. John D. Arm,ov/i\ Q.C., for petitioner. Mr. Hodgins, Q.C., and Mr. C. B. W. Biggar, for respondent. 578 DOMINION ELECTIONS. [A.D. The case turned upon the question whether self- organized committees for promoting the election of the respondent were his agents or were volunteers. Stcdey- bridge case (1 O'M. & H. 67) ; Westminster case (ibid. 21). The evidence on the point was as follows : Respondent : I nominated no committees, but I under- stood committees were nominated. I suppose there was a committee in each municipality. I once went to the door of the committee-room for Brighton village, and left some printed bills to be circulated. Phayre, of Brighton, was a supporter of mine. I cannot say i saw anyone there but John Proctor, Kemp, and, I think, Ketchum. I never attended auy committee. At former elections the com- mittees were appointed by the Reform Association. It acted on its own motion. I had no control over it. The convention that nominated the candidate took upon itself to name committees. I assume they did so. I had nothing to do with them. I paid no expenses of any committees. Ira B. Phayre : I was one of the persons who met at the Brighton committee-room. I did not see the respond- ent when he came to the committee-room. I don't know who were appointed on the committee ; I believe I was considered on the committee. I was at the room nearly every evening. We had voters' lists, and it was placarded as a committee-room working for respondent. Hagaety, 0. J. — ^I must assume from the respondent's own statement that he was aware of an organization in each municipality, acting in the character of a com- mittee for him. As to the Brighton committee, the evidence is strong. The room was placarded as a com- mittee-room. The respondent went there on one occasion. Mr. Phayre had visited it constantly ; it was known to everyone as the respondent's committee-room, and the respondent was aware of some organization working for him in Brighton. I think agency in Phayre is proved ; and an act of bribery having been committed by him, the election is void. 1874] CENTRE WELLINGTON. 579 The respondent must pay the petitioner's costs; but owing to the .cloudy manner in which the particulars have been prepared, L disallow so much of the petitioner's costs as have been incurred in obtaining, amending, brief- ing and placing the particulars on the record. (9 Commons Journal, 1875, p. 11.) CENTRE WELLINGTON. Before Chief Justice Hagarty. GuELPH, 3rd and Jfih November, 181 If. John Ironside et al., Petitioners, v. George Turner Orton, Respondent. Bribery by Agents — Charge against respondent — Conflicting evidence. The respondent was charged with corrupt practices, in that, when can vassing one C, a voter who said he would not vote unless he was paid, he said he was not in a position to pay him anything, but that if C. would support him, one of his (the respondent's) friends would come and see about it. The respondent, as he was leaving the voter's house, met one K., a supporter, who, after some conversation, went into C. 's house and gave him |5 to vote for the respondent. The charge depended upon the evidence of the voter C. and his wife. The re- spondent denied making such a promise ; and he was sustained by K. as to a conversation outside C. 's house, in which the respondent cautioned K. not to give or promise C. any money. The Election Judge on the evidence found that the respondent was not personally implicated in the bribery of the voter C. by K. Before an Election Judge finds a respondent or any other person guilty of a corrupt practice involving a personal disability, he ought to be free from reasonable doubt. The petition contained the usual charges of corrupt practices, and claimed the seat for Robert McKim, the defeated candidate, on a scrutiny of votes. Mr. Bethune and Mr. Guthrie for petitioners. Mr. Drew for respondent. Evidence was given of acts of bribery committed by the parties named in the judgment ; and at the close of the evidence on the first day, counsel for the respondent admitted that sufficient evidence had been given to avoid the election. Evidence was then given on the personal 38 680 DOMINION ELECTIONS. [A.D. charges against the respondent as set out in the judg- ment. At the commencement of the trial the claim for the seat was abandoned by consent of both parties. Hagarty, C. J. — I find that several acts of bribery- were committed beyond question, and it was properly conceded by the respondent's counsel that the election must be set aside. It remains to be seen whether the evidence brings home to the respondent a personal knowledge or assent to any corrupt practices. The only portion of evidence in this head requirihg to be considered is that given by Campbell and his wife. According to the petitioner's view the respondent can- vassed Campbell, and finding the man's vote was profess- edly for sale, he said to him that he (the respondent) was not in a position to pay him anything, but that if Camp- bell would promise to support him, he would see that one of his friends would come and see about it. His wife, who was in bed, says that she didn't hear all the conversation, but heard the man ask for the vote, and say that if Campbell supported him, some of his friends would call and see him. If I can be satisfied that this took place, I must hold that this was an offer to bribe, and such as I think would prove the respondent guilty of a corrupt practice. Camp- bell says that he saw the two sleighs on the road, and that after the re.spondent had returned, Kelly came up to his house, came in and gave him $5, telling him to be up early at the poll to vote, and to come with Dunlop. He then watched from the window, saw Kelly go down to the road and the two sleighs drive off together, the respondent's sleigh going first or in front. Now, in such a statement of facts, the case against the respondent would seem complete. A corrupt offer, a friend to come and do what the respondent could not do per- sonally, the latter going down to the road, the friend ■coming up and giving the bribe, the respondent watching 1874] CENTRE WELLINGTON. 581 till the friend returns, and the whole party — principal and agent — going away together. Against this the respondent swears very positively that he never made such an offer or promise ; that Campbdl told him in effect that his vote was for sale ; that he told him that he ought to be ashamed i to say so, and again pressed him to vote or promise to vote for him, which Campbell declined to do ; that finally respondent told him to think over it, that some of his friends would be coming that morning to the poll and could bring him with them, and that the respondent would be much obliged to him if he voted for him. I think that it is very clearly proved in the oaths of the respondent, Kelly and Snider, that the parties in the sleighs did not go away together, but that the respondent and Snider drove off before Kelly went up to Campbell's house, and that when Kelly came away the former were not on the road. I can hardly consider the discrepancy unimportant, as it negatives one serious aspect of the case, the waiting for Kelly's return and the departure together. As to what took place on the road, the respondent came down from the house, saying that Campbell wanted money and he couldn't give it. He intimates he thought that perhaps Kelly, who was an impulsive man, might go up to Campbell, and therefore he warned him not to give him any money or promise anything to Campbell, and having said this, he did not think that Kelly would have gone to the house, and he drove off, not thinking that he would do so, and not knowing that Kelly had gone there. Kelly swears that he did not go there in consequence of anything said by the respondent ; and they both say that it was only yesterday that the respondent first knew that Kelly had given money to Campbell. What took place on the road might have occurred without any corrupt practice or idea on the respondent's part. He tells his friends that Campbell's vote is offered for sale, but that he refused to promise or give anything, and told his friends to follow his example. If one of them, hearing 582 DOMINION ELECTIONS. [A.D. this, chose to go and purchase without the respondent's knowledge or assent, the latter could not be held person- ally liable. I do not see my way to holding that the transaction took place with his knowledge or assent when the only two persons who knew how it really was swear positively that it was not so. Everything must therefore turn on what took place in the house. If the respondent said what is imputed to him he certainly acted with the most startling folly, laying himself wholly in the power and at the mercy of a man of whom he previously had known nothing, and who on his first acquaintance showed himself to be utterly venal and ready to be sold to the highest bidder. Nothing has come out in evidence to induce me to think that in his general conduct of his canvass he acted with imprudence or with any indifference to the violation of the law. The little that appears as to his general conduct raises the idea that he was generally announcing his intention to spend no money. I, of course, don't place much reliance in such general declaration, but when the case, as here, rests on one transaction, I cannot avoid considering the whole aspect of the canvass as shown in the evidence. It is needless to say that the conduct of Campbell was not such as to impress one favorably. Even the man who might take money for his vote might possibly shrink from taking the course he did if his idea was to lay a trap for the respondent. In addition, the latter waiting for Kelly and the simultaneous departure would play an important part in any account of the transaction. It is urged that he is directly corroborated by his wife. The latter heard only part of the conversation of what the respondent said — and he swears he did say something — about some of his friends taking Campbell to the poll in the morning, and she might easily in good faith have accepted her husband's version of it as that which she had heard. Had the matter rested solely on Campbell's oath as opposed by the respondent's, I would act as I have already 1874. J CENTRE WELLINGTON. 583 done in similar trials, and hold the charge not proven. I am told that with the wife's statement the weight of evi- dence preponderates against the respondent. I appreciate the force of this argument, and have given it all the con- sideration in my power. I think, before I find the respondent or any other man guilty of a corrupt practice involving a personal disability, to say nothing of the effect of it on character, I ought to be free from reasonable doubt. I have the heavy task imposed on me to pronounce upon his guilt or innocence, and I am bound, both personally and judicially, not to condemn until my conviction is clear and unhesitating. I feel bound to say that I entertain the gravest doubts as to whether I can venture to place implicit truth in Camp- bell's statement. On the contrary, I think its accuracy is open to serious question. It is not necessary that I say it seems to me a mere fabrication, even if I think so. It is sufficient if I think it too doubtful to be relied upon to warrant the condemnation of another. If I err, as I have no doubt many persons who feel keenly in contests of this character may think I do, it is better that it should be on what is significantly called the safe side. I had occasion in a recent election case, when the con- clusion of personal culpability was powerfully pressed on me, to give many hours of painful consideration to the duty of a judge in such cases. I have come to the con- clusion that I best discharge the duty cast upon me by declining, on such evidence as is now before me, to find the respondent personally liable. I find that the respondent was not duly elected, and that his election was void. I order that the respondent do pay the petitioners' costs, save and except such costs as may be on taxation shown to have been properly incurred by the respondent in consequence of the allegations as to a scrutiny of votes or the polling of illegal votes, and the prayer for the seat as claimed by and stated in the peti- tion — which allegations and claims were abandoned by petitioners at the opening of the trial, and which costs are 584 DOMINION ELECTIONS. [A.D. to be paid to the respondent as an offset against peti- tioners' costs. I also find that James M. Fraser, Edward Gainor, Andrew - Forester, James Smith, Michael Kerby, Aaron Beaker, James Kerby, Jeremiah Hallett, David B. Kelly and Bernard Campbell, have been found, in my judgment, to be guilty of corrupt practices, and I shall report them accordingly. (9 Commons Journal, 1875, p. 14 ) NORTH VICTORIA. Before the Election Court.* ToKONTO, 26th June and 10th July, 1874- Hector Cameron, Petitioner, v. James Maclennan, Respondent. Dominion Elections Act, 1814, "not retrospective — Candidate u, petitioner — Preliminary objections on bribery, treating, undue influence and travel- ling expenses — Corrupt practices — Assessment roll — Qualification of voters — Scrutiny — Mistakes in voters' lists — Report of Judge to Speaker. The Dominion Elections Act of 1874 does not affect the rights of parties in pending proceedings, which must be decided according to the law as it existed before the passing of that Act ; sec. 20 of that Act referring to candidates at some future election. A candidate may be a petitioner although his property qualification be defective, if it was not demanded of him at the time of his election. If he claims the seat, his want of qualification may be urged against his being, seated, but he may still show that the respondent was not duly elected, if he so charge in his petition. The definition of "corrupt practices " in sec. 3, and the efiect of sec. 20 of Controverted Elections Act of 1873, as to the report of Election Judges to the Speaker, considered. The first principle of Parliamentary law is that elections must be free ; and therefore, without referring to statutory provisions, if treating was carried on to such an extent as to amount to bribery, and undue influence was of a character to affect the election, the election would be void. A single bribed vote brought home to a candidate would throw doubt on his whole majority, and would therefore annul his return. On a preliminary objection to a petition claiming the seat on a scrutiny, the Court declined to strike out a clause in the petition which claimed that the votes of persons guilty of bribery, treating and undue influ- ence, should be struck off the poll. Tiie giver of a bribe, as well as the receiver, may be indicted for bribery. ♦ The Judges present were ; Eichards, 0. J. ; Spragge, C. ; and Hagarty, C. J. C. P. 1874. J NORTH VICTORIA. 585 The Court declined, in the present state of the law, to exclude inquiry as to the payment of travelling expenses of persons going to and returning from the poll, inasmucft as such payment might amount to bribery. By the Dominion Elections Act of 1873, the qualification of voters to the House of Commons was regulated by the Ontario Election Acts. The assessment roll is conclusive as to the amount of the assessment ; but the mere fact of the natpe of a person being on the roll is not con- clusive as to his right to vote. The Returning Officer is bound to record the vote if the person takes the oath, but that is not conclusive. A petitioner claiming the seat on a scrutiny may show, as to votes polled for his opponent : (1) That the voter was not 21 years of age ; (2) that he was not a subject of Her Majesty by birth or naturaliza- tion ; (3) that he was otherwise by law prevented from voting ; and (4) that he was not actually and bona fide the owner, tenant, or occupant of the real property in respect of which he is assessed. Mistakes in copying the voters' lists should not deprive legally qualified voters of their votes any more than the names of unqualified voters being on the list would give them a right to vote. But the mere fact that the lists were not correct alphabetical lists, or had not the correct number of the lot, or were not properly certified, or the omitting to do some act as to which the statute is diiectory, is no ground for set- ting aside an election, unless some injustice resulted from the omission, or unless the result of the election was affected by the mistake. This petition was presented by the defeated caiididate against the respondent, and contained the usual charges of corrupt practices, and claimed the seat on a scrutiny of votes. The vote at the election was : for respondent, 564, and for petitioner, 560. The respondent filed preliminary objections to the status of the petitioner, alleging that he had not the proper qualification required by law to entitle him to be elected a member of the House of Commons, and also to the following paragraphs of the petition : " 3. That the said respondent was, by himself and other persons on his behalf, guilty of bribery, treating and undue influence before, during and after the said election, whereby he was and is incapacitated from serving in Parliament for the said electoral district, and the said election and return of the said James Maclennan were and are wholly null and void. " 4. That many persons voted at the said election, and were reckoned upon the poll for the said James Maclennan, who were guilty of bribery, treating or undue influence, 586 DOMINION ELECTIONS. [A.D. and who were bribed, treated or unduly influenced to vote thereat for the said James Maclennan, and that the votes of all such persons were null and void, and ought now to be struck off the poll. " 5. That many persons were admitted to vote and did vote at the said election for the said James Maclennan, who were not entitled to vote thereat or to have ' their names retained or inserted on the voters' lists for the said elec- toral division, by reason of their not being qualified in respect of property, occupation or value, or whose quali- fication was for other causes insufficent, or who were re- spectively subject to legal incapacity or were prohibited by law from voting, or were not subjects of Her Majesty by birth or naturalization, and such votes ought now to be struck off the poll. " 8. That many persons who had hired their horses, sleighs and carriages to the said James Maclennan and to his agents, for the purpose of carrying electors to and from the polling places at the said election, voted for the said James Maclennan at the said election, and were reckoned on the poll for him ; and that the travelling and other expenses of many persons in going to and returning from the said election, and who voted for the said James Mac- lennan, were paid by the said James Maclennan or by his agents, and that the votes of all such persons were and are void, and should be struck off the said poll. " 10. That the voters' lists used by the several deputy returning officers at the said election were not correct alphabetical lists of all persons entitled to vote at the said election, within the several municipalities, or sub- divisions, or wards thereof, together with the number of the lot, or part of a lot, or other description of the real property in respect of which each of them was so quali- fied ; nor were such voters' lists duly certified according to the statute in that behalf, but the names of divers persons not properly entitled to vote at the said election, and who voted for the said James Maclennan, were im- properly inserted in such voters' lists, and ought to be 1874.] NORTH VICTORIA. 587 struck off the poll, and the names of divers persons who were properly entitled to vote thereat, and who tendered their votes for your petitioner, were omitted from the said voters' list, and ought to be added to the poll. " 12. That the polling subdivisions or wards in the said electoral district were not the same as those used at the last preceding election of members of the Legislative Assembly, and that the polling places for each of the sub- divisions, or wards, were not provided in the most central and convenient place for the electors of such subdivisions, or wards, nor was public and suiEcient notice given, by proclamation or otherwise, of the said polling subdivi- sions, and of the places appointed for holding the said ' poll, and that the polling subdivisions at the said election were not established according to law." The preliminary objection to the third paragraph was that even if the respondent was, by himself or other per- sons on his behalf, guilty of treating and undue influence, as alleged, such acts would not incapacitate him from serving in Parliament for the said electoral district, nor render the said election and return of the respondent null and void. And as to the fourth, fifth, and latter part of the eighth paragraphs of the said petition, that even if the facts were as stated, such facts are not suflicient to render the said votes null and void, or to entitle the petitioner to have the same struck off the poll, or in any event would not prevent such persons voting at the said election, or entitle the petitioner to have the said votes declared null and void. And as to the tenth and twelfth paragraphs of the said petition, on the ground that even if the facts were as stated, such facts are not sufficient to render the election or return of the respondent null and void, or to entitle the petitioner to be declared duly elected and returned. A summons having been taken out by the petitioner to set aside the prelimiminary objections, cause was shown by 588 DOMINION ELECTIONS. [A.D. Mr. Mowat, Q.C. (Attorney-General of Ontario), and Mr. Bethune, for respondent. Mr. F. Osier, for petitioner, supported the summons. Richards, C. J. — Section 41 of the British North America Act, 1867, enacts that, until the Parliament of Canada otherwise provides, all laws in force in the several Provinces of the Union, relative (amongst other matters) to the following : The qualifications and disqualifications of persons to be elected or to sit or vote as juembers of the House of Assembly, or Legislative Assembly, in the several Provinces, the voters at elections of such members, the oaths to be taken by voters, the returning officers and their duties, the proceedings at elections, etc., shall respectively apply to elections of members to serve in the House of Commons for the same several provinces. Then, by a proviso, special provision is made that in Algoma, in addition to persons qualified by the law of the Province of Canada to vote, every male British subject, aged 21 years or upwards, being a householder, shall have a vote. Under the Imperial Statute 3 & 4 Vic, cap. 35, sec 28, it was provided that "No person shall be capable of being elected a member of the Legislative Assembly of the Province of Canada who shall not be legally or equitably seized as of freehold for his own use and benefit of lands or tenements held in free and common soccage, or seized or possessed for his own use and benefit of lands or tene- ments held in fief or in roture, within the said Province of Canada, of the value of five hundred pounds of sterling money of Great Britain, over and above all rents, charges, mortgages, and incumbrances charged upon and diie and payable out of or affecting the same ; and every candi- date, at such election, before he shall be capable of being elected, shall, if required by any other candidate, or by any elector, or by the returning officer, make the follow- ing declaration : "I, A. B., do declare and testify that I am duly seized 1874.] - NORTH VICTORIA. 589 at law or in equity as of freehold, for my own use and benefit, of lands or tenements held in free and common soccage (or duly seized or possessed for my own use and benefit of lands or tenements held in fief or in roture as the case may be), in the Province of Canada, of the value of five hundred pounds of sterling money of Great Britain, over and above all rents, mortgages, charges and incum- brances charged upon or due and payable out of or affect- ing the same, and that I have not coUusively or colqrably obtained a title to or become possessed of the said lands and tenements, or any part thereof, for the purpose of qualifying or enabling me to be returned a member of the Legislative Assembly of the Province of Canada." Sec. 36; Con. Stat, of Canada, cap. 6, recites that under the 28th section of the Union Act every candidate shall, if required, make the declaration, and then proceeds to enact that every such candidate, when personally required as aforesaid to make the declaration, shall, before he shall be elected, give and insert at the foot of the declaration required of him a correct description of the lands or tene- ments on which he claims to be qualified according to law to be elected, and their local situation, by adding imme- diately after the word " Canada," which is the last word in the said declaration, the words, "And I further declare the lands or tenements aforesaid consist of," &c. Under both the Union Act and the Consolidated Statute, wilfully false statements in relation to the qualification make the party guilty of a misdemeanor, and liable to the pains and punishment incurred by persons guilty of wilful and corrupt perjury. Sec. 37 of Con. Stat. cap. 6, enables a candidate to make the declaration voluntarily before as well as after the date of the writ of election. Sub-sec. 2. " No such declaration, when any candidate is required to make the same by any other candidate, or by any elector, or by the returning officer, above provided, need be so made by such candidate unless the same has been personally required of him on or before the day of 590 DOMINION ELECTIONS. [A.D. nomination of candidates at such election, and before a poll has been granted, and unless he has not already made the same voluntarily as he is hereinabove allowed to do, and not in any other case ; and when any such declara- tion has been so required according to law, the candidate called upon to make the same may do so at any time during such election; provided it be made before the proclamation to be made by the returning officer at the close of the election of the person or persons elected at such election." Sub-sec. 3 allows the declaration to be made before the returning officer, or a J.P., who shall attest the same by writing at the foot the words " taken and acknowledged before me," etc., or words to the like effect, and by dating and signing the attestation. Sub-sec. 4. When a candidate delivers or causes to be delivered such declaration, so made and attested, to the returning officer at any time before the proclamation made by him at the close of the election, he shall be deemed to have complied with the law to all intents and purposes. The intention of the Imperial Legislature seems to have been to make the same qualification as to property necessary to qualify a candidate for the House of Com- mons, here in Ontario (Upper Canada), as was necessary to qualify him to be elected a member of the House of Assembly of the then Province of Canada. Of course the latter part of the declaration, where it alleged that the qualification was not colorably obtained to qualify him to be returned a member of the " Legislative Assembly of the Province of Canada," could not apply in the same words ; the intention being that he should declare that he had not obtained the qualification colorably to qualify him to be elected " a member of the House of Commons of the Dominion of Canada." The intention seems plain and undoubted. There is also another difficulty in liter- ally complying with the terms of the Con. Stat., cap. 6, as to the declaration being delivered to the returning officer 1874.] NORTH VICTOEIA. 591 at any time before the proclamation made by him at the closing of the election, no such proclamation being re- quired under the election law as it then stood. By 29 & 30 Vic, cap. 13, sec. 10, no day was to be fixed for closing the election, nor any proclamation of the candi- date elected. Nevertheless, if the candidate made the declaration and delivered it to the returning oiEcer before the polling was closed, and probably before the returning ofiicer had made his return to the Clerk of the Crown in Chancery, of the total number of votes taken for each candidate, it would have been in time. Though the terms of the Consolidated Act could not be literally complied with, it could in substance. We are not, therefore, pre- pared to say that by the alteration in the law referred to there has been such a change effected that no property qualification was required by a candidate to be elected for the House of Commons at the time the election was held. If the candidate who now seeks the seat was not quali- fied under the statute to be elected, I take it for granted that the respondent will show that under the 54th section of the Controverted Elections Act of 1873. It does not follow from this, however, that he may not be a good petitioner. Before the Grenville Act, 10 Geo. III., cap. 16, there was a difficulty as to the person who could be a petitioner, and his qualification as an elector was often attacked; but that statute provided that any person claim- ing to vote, or who claimed to be returned, might present a petition complaining of an undue election. Under the Imperial Statute, 31 & 32 Vic, cap. 125 (from which our Acts are copied), it is provided by sec. 5 that a petition complaining of an undue return, or undue election of a member to serve in Parliament, may be presented to the Court by any one or more of the following persons : 1. Some person who voted, or who had a right to vote at the. election to which the petition relates; or 2. Some person claiming to have a right to be returned or elected at such election ; or 592 DOMINION ELECTIONS. [A.D. 3. Some person alleging himself to have been a candi- date at such election. Under the Dominion Act of 1873, cap. 28, sec. 10, a petition complaining of an undue return, or undue elec- tion of a member, or of no return, or a double return, may be presented to the Election Court : 1. By some person who was duly qualified to vote at the election to which the petition relates ; or 2 and 3. Are in the very words of the Imperial Act. Now, here the petitioner was a candidate, and claims to have a right to be elected and returned at the said election. We have been referred to the Honiton case (3 Lud. 163, 16.5 [1782],) where it was decided that M.'s election having been declared void by a committee, on the ground of bribery, and he stood on the vacancy, and being unsuc- cessful, petitioned against the return of his opponent, it was objected that as he could not legally be a candidate, he could not petition. The committee resolved that. the said M. was not eligible to fill the vacancy occasioned by the said resolution. He was, therefore, not permitted to proceed. It is not very clear if a new election was prayed for, or that the return of the sitting member might be declared void. There were electors who were petitioners, and their petition was tried as to the charges of bribery, which were decided in favor of the sitting member. In the Taunton case, 1831 (referred to in Wolferstan's Law of Elections at p. 8, and Perry and Knapp's Election Cases, 169, note), the objection that petitioner could not proceed, because the sitting member was prepared to prove bribery against him, was overruled. In the Penryn case (P. & K. 169, n.), the petitioner had refused to take the qualification oath when called upon. The committee held that, not having complied with the necessary provisions to give him the character of a can- didate, he had no title to petition : Sandwich case {ibid. 169); Great Orimsby case (ibid. 169); Eoe on Elections, 2nd Ed. 123; Rogers on Elections, 10th Ed. 410. 1874.J NORTH VICTORIA. 593 But a person alleging himself to be a candidate is en- titled prima facie to petition, unless his disqualification is obvious and incontestable : Londonderry case (W. & Br. 214). It is no objection to the petition of electors being pro- ceeded with, that their candidate is disqualified : Col- chester case (3 Lud. 166), unless, semble, the petition only claims the seat for the candidate on the ground that he had the majority of legal votes. In Wolferstan's book at p. 5, referring to the petitioner under the English Act, as to a person who voted, or had a right to vote at the election to which the petition relates, the author says, that this means those who rightfully voted, or whose qualification on the register, whether they voted or not, was unimpeachable at the time of the election: Lisburn case (W. & Br. 222), decided under sees. 11 & 12 Vic, cap. 98. The words of 31 & 32 Vic, cap. 125, are identical : Cheltenham case (W. & Br. 63). Under the statutes previous to 11 & 12 Vic, cap. 98, any one claiming in his petition to have had a right to vote at the election might petition. But under that state of the law, committees allowed the sitting members to show that the petitioners had not the right they claimed : North Cheshire case (1 P. R & I). 214) ; Berwick case, 30th June, 1820 ; contra, Harwich case (1 P. E. & D. 73) ; and Aylesbury case (ibid. 81) ; Rogers on Elections, 10th Ed. 40*8. In the second edition of the Law of Elections, by Leigh & LeMarchant, at p. 108, it is stated, "Although the words of the Act say one or more, it is prudent, provided the petition be presented by electors, to include some larger number as petitioners, in case an objection should be taken that though they had voted, they had no right to vote at the election. Care should also be taken that all the petitioners should, as far as possible, be voters whose votes could not be impeached. If the petition is presented by a candidate, it means by any person elected to serve in Parliament at an election, and any person who has been 594 DOMINION ELECTIONS. [A.D. nominated as, or declared himself a candidate at an elec- tion." These proceedings on election petitions are not now- considered as matters in which the parties to them are alone interested. To use the language of Bovill, C. J., in Way good v. James, Taunton case (L. R. 4 C. P. 365) : " The inquiry is one not as between party and party, but one affecting the rights of the electors, the persons who are or may be members or candidates, and the House of Commons itself." And in the Brecon case (2 O'M. & H. 34), Mr. Justice Byles said : " The petitioner being a trustee for the whole body of the voters for the borough, and for the public generally, cannot withdraw unless he complies with the provision of the statute." Under the statute, the petition is not simply served on the sitting member, but a copy of the petition is sent to the return ing officer, and he is required to publish the same, so that when a petition is presented it is known who the petitioner is, and if he is a candidate that is known" throughout the electoral district. If he represents him- self as a voter duly qualified to vote at the said election, on looking at the rolls and voters' lists, it there appears if he was duly qualified to vote as he claims. On turning to the statute, any person interested in the election sees it plainly stated that a candidate or voter, duly qualified to vote at the election, may petition. Under such circum- stances, all persons interested in the matter would assume that the petition would go on. The special provisions in the Act to guard against a collusive withdrawal of the petition would all induce an interested elector to suppose, when a petition was presented by a candidate, or a voter duly qualified to vote at the election, that nothing could be urged against the inquiry being proceeded with. It is objected against the petition that the petitioner did not possess the necessary qualification to be a candi- date. He was a candidate in fact. His right to be such is only now questioned ; and unless there is some case bind- ing on us which expressly holds that if the preliminary 1874.] NORTH VICTORIA. 595 inquiry establishes the fact that the candidate was not qualified, therefore he has no locus standi to show that the sitting member is not duly elected, we think we ought not to stay the inquiry ^s to the respondent's right to hold the seat. The decisions of committees to which we have referred are not uniform, or we might be bound by them under section 33 of the Dominion Act. There has been no case cited on this point which has been decided since the new Act came in force in England, that holds, if the peti- tioner is disqualified as a candidate, that the inquiry cannot be pursued. In the 2nd edition of Leigh & Le Marchant's Law of Elections, at page 76, referring to the practice, it is stated, " The general charges would usually be gone into first by the petitioner, and at the close of his case, the respondent's counsel proceeds not only to answer the charges against the respondent, but to open counter charges against the petitioner (that must be when he is . a candidate). If the petitioner is disqualified, a scrutiny of votes may still take place for the purpose of showing that the respondent has not really a majority of legal votes, even though the respondent is declared not to have been guilty of corrupt practices ; " and the following lan- guage of Baron Martin is quoted : "The question in the scrutiny would be which of these gentlemen had the majority of legal votes, and assuming the petitioner to have been personally incapacitated, that would not have affected the votes of the persons who gave their votes for him, they being ignorant of it. They would be perfectly good votes ; and the persons who were the supporters of the petitioner would have a right to have it determined whether or not the respondent was sent to Parliament by a legal majority:" York, West Riding, Southern Division (1 O'M. & H. 215). The language of Willes, J., as follows, is also cited : " Against any member, therefore, who is elected in the first instance, any one directly interested may petition. If the petitioner does not claim the seat, there is no re- 39 596 DOMINION ELECTIONS. [A.D. crimination allowed ; but if the petitioner does claim it, the respondent is entitled to protect himself, and, before the scrutiny, prove a recriminatory case, and show that the election of the other candidate could not stand. It is true that even if he proves it, the petitioner may still go into the scrutiny to turn out the sitting Tnemher:" Waygood v. James, Taunton case (L. E. 4 C. P. 368). In the Norwich case (19 L. T. N. S. 620) it was urged that as the sitting member had been unseated for bribery by his agents, he had no further interest, and had no locus standi. Martin, B., said : " Is not the sitting mem- ber a respondent in respect of every matter that you charge in your petition, and in respect of every claim you make in your petition, and has he not a right, as having been a candidate, though he may be unable to protect his own seat, to show that you are not entitled to it ? " We think the weight of reason and authority is in favor of allowing a candidate to be a petitioner under the statute, though his property qualification may be defective, if it was not demanded of him at the time of his election. If he claims the seat, his want of qualifica- tion may be urged against his being seated ; but he may still show that the respondent was not duly elected if he so charges in his petition. By section 20 of the Dominion Act of the last session of Parliament, respecting the election of members of the House of Commons, it is provided that from and after the passing of this Act, no qualification in real estate shall be required of any candidate for a seat in the House of Commons of Canada, any statute or law to the contrary notwithstanding ; but such candidate shall be either a natural born subject of the Queen, or a subject of the Queen naturalized by an Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Irelaad, or of the Legislature of one of the Provinces of Upper Canada, Lower Canada, Canada, Nova Scotia, New Brunswick, Manitoba, British Columbia, or Prince Edward Island, or of this Parliament. 1874.] NORTH VICTORIA. 597 By section 134, it is enacted that the Act passed by the Parliament of Canada in the 36th year of Her Majesty's reign, intituled, " An Act to make temporary provision for the election of m^emhers to serve in the House of Gomm^ons" is hereby repealed, except only as to elections held, rights acquired, or liabilities incurred before the coming into force of this Act ; and no enact- ment or provision contained in any Act of the Legislature of the late Province of Canada, or of any of the Provinces now composing the Dominion of Canada, respecting the election of members of the Elective House of the Legis- lature of any such Province, shall apply to any election of a member or members of the House of Commons held after the passing of this Act, except only such enactments and provisions as may be in force in such Province at the time of such last mentioned election, relating ■ to the qualification of electors and the formation of voters' lists, which will apply for like purposes to elections of mem- bers of the House of Commons as provided by this Act. By section 135, it was provided that the Act should come into force on the first day of July next after the passing thereof. Where proceedings have been taken before the passing of the Act referred to, to set aside the election of a member for want of the property qualification required by law, at the time the election took place, can the 20th section of the Act above quoted be successfully invoked to aid the unqualified candidate, and destroy the rights of the petitioners ? If proceedings in the Election Court are to be analo- gous to suits in other courts, then the rights of the parties ought to be decided according to the law as it stood before it was repealed. No doubt there may be cases where persons may be deprived of rights and remedies which they had when the actions were com- menced, by the effect of some Act of Parliament. But then it ought to appear that such was the intention of the Legislature in passing the Act, or that such result 598 DOMINION ELECTIONS. [A.D. was the natural and proper one to flow from the Act itself. The intention seems to be, by the 134th section, that the Act in force at the time the elections took place should not be repealed as to elections held, rights ac- quired, or liabilities incurred before the coming into force of the new Act. It also refers to certain enactments which should not apply to any election of a member of the House of Commons hdd afteT the passing of the Act. The obvious intention of the Legislature seems to have been that which would be considered reasonable, viz., that as to the elections held before the passing of the Act, the law then in force should prevail, whilst as to elections after the passing of the Act, the new law should be acted on, and govern the rights of the parties. Under the Dominion Statute, 31 Vic, cap. 1 (the Inter- pretation Act), in relation to the construction of Acts of the Parliament of Canada, it is provided by sec. 7, sub- sec. 35, that " When any Act is repealed, wholly or in part, and other provisions substituted, all officers, persons, bodies politic or corporate, acting under the old law, shall continue to act as if appointed to act under tbe new law until others are appointed in their stead; and all pro- ceedings taken under the old law shall be taken up and continued under the new law, when not inconsistent therewith ; and all penalties and forfeitures may be re- covered, and all proceedings had in relation to onatters which have happened before the repeal, in the same manner as if the law were still in force, pursuing the new provi- sions so far as they can be adapted to the old law." Sub-sec. 36. " The repeal of an Act at any time shall not affect any act done, or any right or right of action existing, accruing, accrued or established, or any pro- ceedings commenced in a civil cause before the time when such repeal shall take effect, but the proceedings in such case shall be conformable, when necessary, to the repealing Act." Sub-sec. 37. " No offence committed, and no penalty or forfeiture incurred, and no proceedings pending under 1874.] NORTH VICTORIA. 599 any Act at any time repealed, shall be affected by the repeal, except that the proceedings shall be conformable, when necessary, to the repealing Act ; and that when any penalty, forfeiture or punishment shall have been miti- gated by any of the provisions of the repealing Act, such provisions shall be extended and applied to any judgment to be pronounced after such repeal." The section as to the property qualification does not come into force by repeal of the Act of 1873, under which this election was held, but by its o"*vn affirmative power, declaring that after the passing of the Act no qualification should be required of a candidate for a seat in the House of Commons of Canada. The petitioner here became a candidate before the Act in question was passed, and the election which he is contesting was held, and the respondent was returned as a member, before the Act in question was introduced. The fair and reasonable interpretation of the meaning of the Legislature is, that the 20th section refers to candidates for a seat at some future election, not to candidates when the election had taken place, and when what is to be done in relation to them is to correct the errors and mistakes then made. The proper view to take, we think, looking at the statute itself, the Interpretation Act, and the general rules applicable to the construction of statutes, is that the Legislature did not intend to affect the rights of parties in pending proceedings, but that they should be decided as the law existed before the passage of the Act referred to. We have already stated what we think the law was on the subject of the property qualification necessary to be possessed by candidates to qualify them to be elected, when the election in question took place. As to the objection to the charge of treating and undue influence alleged in the third paragraph of the petition in connection with bribery, if the treating were to such an extent as to amount to bribery, and the undue influence was of a character to affect the whole election without 600 DOMINION ELECTIONS. [A.D. referring to any statutory provisions, it would,, by the law of Parliament, I apprehend, influence the result. The first principle of Parliamentary law, as applicable to elections, is that they must be free, and if treating and undue influence were carried to an extent to render the election not free, then the election would be void. The following observations apply generally to votes that may be influenced by treating, etc. A vote influenced by treating was bad before the statute, and is bad now. Under the statute it would seem necessary to show not only that the entertainment was corruptly received by the voter, but that it was corruptly given by the candidate ; but as proof of the former would invalidate the vote at common law, it is unnecessary to add proof of the latter. The 23rd section of the Corrupt Practices Act of 1854 (Imp.), which declares the giving of entertainments to voters on the polling and nomination days to be illegal, says nothing as to the effect upon the votes given. For this, therefore, resort must be again had to the common law of Parliament ; and the question will be, as hereto- fore, whether the vote was influenced by the result of the entertainment or not. A vote unduly influenced is a bad vote by the common law of Parliament : Rogers on Elections, 10th Ed., p. 536. It is very embarrassing to carry out the Dominion Con- troverted Election Act of 1873, owing to the fact that we have no Corrupt Practices Prevention Act applicable to Dominion elections, which contains all of the provisions of the Imperial Act of 17 & 18 Vic, cap. 102, and that the Dominion Act of 1873 omits the 43rd and 44th sec- tions, which are contained in the Parliaoientary Elections Act of 1868, Imp. Stat. 31 & 32 Vic, cap. 125, from which the Dominion Act was undoubtedly framed. These sections, with some in the Corrupt Practices Act, have a very important bearing on the questions which may come before the Election Judges. Under the 43rd section (Imp.), when it is found by the report of the Judge upon an election petition under the Act 1874.] NORTH VICTORIA. 601 that bribery has been committed by, or with the knowledge and consent of, any candidate at an election, such candi- date shall be deemed to have been personally guilty of bribery at such election, and his election, if he has been elected, shall be void, and he shall be incapable of being elected to, and of sitting in, the House of Commons during the seven years next after the date of his being found guilty, and he shall be further incapable, during the said seven years, of holding office, etc. The 44th section (Imp.) makes his election void if he employs any person as his agent who has been found guilty of any corrupt practice, or reported guilty of any corrupt practice by a committee of the House of Com- mons, or the report of a Judge on an election petition tuader the Act, or a report of commissioners appointed under cap. 57, 15 & 16 Vic. Under the 45th section (Imp.), any person other than a candidate found guilty of bribery in any proceeding in which, after notice of the charge, he has had an oppor- tunity of being heard, shall, during the next seven years after the time he has so been found guilty, be incapable of being elected or sitting in Parliament. By the 36th section of the Corrupt Practices Preven- tion Act of 1854, Imperial Statute, it is enacted : If any candidate, at any election for any county, city or borough^ shall be declared by any Election Committee guilty, by himself or agents, of bribery, treating or undue influence at such election, such candidate shall be incapable of being elected or sitting in Parliament for such county, city, or borough, during the Parliament then in existence. The law being in this state in England, the Parlia- mentary Elections Act, section 3, declares that corrupt practices shall mean bribery, treating and undue in- fluence, or any of such oflences as defined by Act of Parliament, or recognized by the common law of Parlia- ment; By the same section of the Dominion Controverted Elections Act of 1873, it is declared that "corrupt practices shall mean bribery and undue influence,' treating, per- 602 DOMINION ELECTIONS. [A.D. sonation and other illegal and prohibited acts, in reference to elections, or any of such offences, as defined by Act of the Parliament of Canada." Under section 20 of the Dominion Act of 1873, cap. 28, when any charge is made in an election petition of any corrupt practice having been committed at the election to which the petition refers, the Judge shall, in addition to the certificate (required by the 19th sec), and at the same tmie report in writing to the Speaker as follows : (a) Whether any corrupt practice has or has not been proved to have been committed by, or with the know- ' ledge and consent of, any candidate at such elections, stating the name of such candidate and the nature of such corrupt practice. (6) The names of any persons who have been proved at the trial to have been guilty of any corrupt practice. (c) Whether corrupt practices have, or whether there is reason to believe that corrupt practices have extensively prevailed at the election to which the petition relates. These provisions are similar to those contained in the Imperial Act. Taking the whole of that Act, it is very apparent that the report as to corrupt practices is consistent with it, and by it certain results are to follow the report. The want of these omitted clauses, and of the 36th section of the Corrupt Practices Act, renders it difficult to say how far the report, as to sections (b) and (c), required of the Judge, will be of use when returned to the House of Commons. The Legislature still requires the report to be made, and we do not see how we can strike out the clause of the petition complaining of the practices referred to. The 18th sec. of Dominion Elections Act, 36 Vic, cap. 27, forbids any candidate, directly or indirectly, to employ any means of corruption by giving any sum of money, office, place, or employment, gratuity or reward, or any bond, bill or note, or conveyance of land, or any promise of the same, nor shall he, either by himself or his authorized agent for that purpose, threaten any elector with losing 1874.] NORTH VICTORIA. 603 any office, salary, income or advantage, with intent to corrupt or bribe any elector to vote for such candidate, or to keep back any elector from voting for any other can- didate ; nor shall he open and support, or cause to be opened and supported at his costs and charges, any house of public entertainment for the accommodation of the electors ; and if any representative returned to the House of Commons is proved guilty, before the proper tribunal, of using any of the above means to procure his election, his election shall be thereby declared void, and he shall be incapable of being a candidate, or being elected or returned during that Parliament. The Corrupt Practices Act of 1860, passed by the Province of Canada, defines bribery in the same way as the English Act of 1854, and in the same way declares the oifence a misdemeanor, for which the parties may be punished, both the giver and receiver of the bribe. Under the 6th section of the English Act, it is provided that if a person claims to be placed on the list of voters who has been convicted of bribery or undue influence at an elec- tion, or a judgment recovered against him for any penal sum recoverable in respect of any of the oflfences of bribery, 'treating or undue influence, then the Revising Barrister shall erase the name of such person from the list of voters ; or if he claims to have his name inserte i on the list; he shall disallow such claim ; and the names of such persons so expunged from the list of voters, or refused to be placed thereon, shall be inserted in a list of persons disqualified for bribery, treating or undue in- fluence, which shall be appended to and published with the list of voters. The 36th section, already referred to, applies to the candidate, and declares him incapable of being elected or sitting in Parliament, when he shall be declared guilty by an Election Committee. The 3rd section of the Provincial Statute of 1860 makes the hiring of vehicles to convey electors to the polls, or pajdng the expenses of electors in coming to the polls. 604 DOMINION ELECTIONS. [A.t). illegal acts, and makes the person offending liable to a penalty of $30 for each offence, and costs of suit ; and any elector who shall hire his horse to any candidate, or the agent of such candidate, for the purpose of conveying electors to or from the polls, shall, ipso facto, be dis- qualified from voting at such election, and shall also for- feit $30 to any person who shall sue for the same. This section, and the 18th section of the Dominion Act, cap. 27, of 1873, seem to be the only ones which declare the effect on the voter and the candidate of the illegal and prohibited acts. In the Act of 1860, the bribery is delared to be a mis- demeanor, and the mode of recovering the penalty pointed out, but its effect on the status of the member and the voter is not declared. Whilst the Controverted Elections Act of 1873 defines what corrupt practices shall mean, and makes it necessary for the Judge, under certain circumstances, to report whether such practices have been proved to have been committed, and by whom committed, yet the statute does not declare the effect of such report. We are then left in these unprovided cases to the common law of Parliament, The bribing of an elector was always punishable at common law, independent of the statute : Rogers on Elec- tions, 10th Ed. 308, and Lord Mansfield's opinion expressed in Rex v. Pitt (3 Burr. 133.5.) In Rex V. Vaughan (4 Burr. 2501), Lord Mansfield said, " Wherever it is a crime to take it is a crime to give ; they are reciprocal. And in many cases, especially in bribery at elections to Parliament, the attempt is a crime ; it is complete on his side who offers it." It therefore appears to be a crime in the giver as well as the receiver of the bribe, and both may be indicted. In Bushby's Election Law, 4th Ed. Ill, it is stated: " Now one consequence in Parliament of common ■ law bribery, when committed by a duly qualified and success- ful candidate at an election, was to enable the House, and it exclusively, to annul his return, and that though only 1874.] NORTH VICTOBIA. 605 a single bribe was proved. All the votes so procured were void, and even after deducting them, had he still a ma- jority in his favor, the result was the same." See May's Pari. Prac. 7th Ed. 56 ; Simeon, 166 ; 2 Doug. 404, n. This was intended not so much as a penalty, as to secure to constituents a free and incorrupt choice, seeing that a single purchased vote, brought home to the candi- date, might well throw doubt on his whole majority. It is said an elector who has administered bribes is not disqualified at common law from voting afterwards at that or any other election : Bushby 114, and cases there cited. The unauthorized bribes of third persons, who are not agents of the candidate, do not affect his return, though given in his interest, unless the majority depends on votes so obtained, or unless such bribes occasion general cor- ruption: Bushby, 121. It seems a strange state of the law that the person who bribes may be indicted for a crime and punished in that way, yet his vote may stand good, whilst the person bribed loses his vote and the candidate may lose his seat. It may be that this will be the result, because of the omis- sions in our statute law ; but when the evidence in such a case is brought before me, and I am compelled to decide, I would give the question more consideration than I have been able as yet to bestow on it, before holding that the vote of the person giving the bribe would be held good. In being called on as we now are, without any evidence before us, to decide certain questions which may affect the qualification of voters or the standing of candidates, and which in truth can only apply to a limited number of cases (the law, both in the Dominion and Province of Ontario, differing now from the Imperial statute), the language of Willes, J., in Stevens v. Tillett (L. R. 6 C. P. 147), seems to me peculiarly applicable. He says : " The order in this case to strike out the clauses in the petition which were objected to must therefore be sustained, if it be sustained, upon showing that leaving those clauses 606 DOMINION ELECTIONS. [A.D. in the petition could not have any effectual end in the disposal of the prayer thereof, whatever might be the character of the evidence which was produced before the Judge at the trial. The true question, as it appears to me, upon this occasion, is whether in any reasonably con- ceivable state of the evidence a case might be made out, upon the trial of this petition before the Judge in the regular and ordinary way, which would make it the duty of the Judge to grant the prayer of the petition." We do not feel warranted, in this stage of the proceed- ings, in striking out that portion of the fourth paragraph of the petition which relates to the votes of persons who were guilty of bribery, treating, or undue influence. Under the Dominion Statute, 36 Vic, cap. 27, sec. 2, the laws in force in the several Provinces of Canada^ Nova Scotia and New Brunswick, on 1st July, 1867, relative to the qualifications, etc., of members, the voters at elections of such members, the oaths to be taken by voters . . . . and generally the proceedings at and incident to such elections, shall, as provided by the British North America Act of 1867, continue to apply respec- tively to elections of members to serve in the House of Commons for the Provinces of Ontario, Quebec, Nova Scotia and New Brunswick, subject to exceptions and provisions thereafter made. By sec. 4, subject to the provisions thereinafter made, the qualification of voters at elections in the Province of Ontario, for members of the House of Commons, shall he that established by the laws in force in that Province on 23rd January, 1869, as the qualification of voters at elec- tions of members of the Legislative Assembly ; and the voters' lists to be used at the election of members of the House of Commons shall be the same as if such elections were of members of the Legislative Assembly, on the basis of the qualification aforesaid ; and the polling subdivisions or wards shall be the same as if such elections were for members of the Legislative Assembly ; and the returning officer shall provide a polling-place for each subdivision 1874.] NORTH VICTORIA. 607 or ward in the most central or convenient place for such elections. By sec. 5, the oath or affirmation to be required of voters in the said Province shall be that prescribed by the 54th section of cap. 6 of the Consolidated Statutes of Canada, and no other, except in Algoma and Muskoka, as thereafter provided. Under sec. 41 of the British North America Act, all laws in force in the several Provinces at the time of the union relative to the voters at elections of members of the Legislative Assembly, the oaths to be taken by voters, the proceedings at elections, etc., respectively, apply to elections of members to serve in the House of Commons. The qualification of voters in Ontario referred to by sec. 4, above cited, is regulated by Provincial Statute, 32 Vic, cap. 21. By sec. 5 of that Act, the following persons, and no other persons, being of the full age of twenty-one years, and subjects of Her Majesty by birth or naturalization, and not being disqualified under the preceding sections (2, 3, 4), or otherwise by law prevented from voting, if duly registered or entered on the last revised and certified list of voters according to the provisions of that Act, shall be entitled to vote at the elections of members to serve in the Legislative Assembly, viz. : (1.) Every male person being actually and bona fide the owner, tenant, or occupant of real property of the value hereinafter next mentioned, and being entered on the then last revised assessment roll for any city, town, village, or township, as the owner, tenant, or occupant of such real property of the actual value in cities of S400, in towns of $300, in incorporated villages of $200, and in' townships of $200, shall be entitled to vote at elections of members of the Legislative Assembly. As to the fifth paragraph, we think the petitioner may show : 1. That the voter was not twenty-one years of age. 2. That he was not a subject of Her Majesty by birtli or naturalization. 608 DOMINION ELECTIONS. [A.D. 3. That he was otherwise by law prevented from voting. 4. That he was not actually and bona fide the owner, tenant, or occupant of the real property in respect of which he is assessed. We think the roll conclusive as to the amount of the assessment. The fact that the name of a person is on the assessment roll or list of voters is not conclusive as to his right to vote. If his name is on the list and he takes the oath required by the statute, the returning officer may be bound to record his vote, but that does not seem conclu- sive under the words of the Ontario Act. It is not being registered that gives the qualification ; but though he has the qualification in other respects, he cannot vote unless his name is entered on the proper list. At one time, in England, though the name was on the register and the returning officer was bound to admit the vote, yet it might be attacked on a scrutiny, and even now for some causes may still be attacked. Under the view we take of the qualification being regulated by the Ontario Act, we do not think we can properly pass over or disallow the part of the 5th para- graph of the petition objected to. Then, as to the objection to the latter part of the 8th paragraph, paying the travelling expeuse.s of persons coming and returning from the election. By the Corrupt Practices Act of Canada of 1860, sec. 3, paying the ex- penses of voters is an illegal act, and any elector who shall hire his horse to any candidate or agent for the purpose of conveying electors to and from the polling places, shall be disqualified from voting at such election. Section 71 of the Ontario Act, 32 Vic, cap. 21, is similar in etfect, and a penalty of $100 is imposed, but the latter part pro- vides that any elector who shall hire a horse, etc., for any candidate or for any agent of any candidate for the pur- pose of conveying any electors to and from the polling place, shall be disqualified from voting at such election, and under a penalty of $100. Cooper v. Slade (6 H. L. 746), seems to be to the efiect that merely paying the 1874.] NORTH VigTORIA. 609 expenses of an elector, as the law stood in England, was not a violation o£ the statute, but promising to pay might be held to be bribery. In the present state of the law we do not think we can properly exclude inquiring into these matters.* As to the objection to the 10th paragraph. If the names of persons, whose votes would not be legal in the view already expressed in the objection to the 5th para- graph of the petition, were inserted on the lists handed to the deputy returning officer, their votes for respondent would be bad, though the names were on the lists handed to the deputy returning officer, for the reasons already given. And if persons who were in other respects properly entitled to vote, and whose names were on the last revised and certified list of voters according to the provision of the statute, tendered their votes for petitioner, it may be contended with great force that they are entitled to have their votes now recorded for the petitioner. The mistake in copying their names on the list for the particular sub- division, or ward, should not deprive a legally qualified voter of his vote, though it might justify the deputy re- turning officer in refusing to receive it. But the mere fact that the lists were not correct alphabetical lists, or had not the correct number of the lot, or their not being duly certified according to the statute, would be no ground for setting aside the election, unless some injury resulted from the omission, as if some electors were deprived of their votes, or the result of the election in some way was influenced by the mistake. As to the 12th paragraph, the observation just made will apply to it. These objections to what may really be considered as omitting the doing of matters as to which the statute is considered as directory, have never been held of sufficient importance to avoid an election, unless it can be shown that some injustice has been done by the ' Hiring teams to convey voters to or from the poll was subsequently declared to be a corrupt practice by the Dominion Elections Act, 1874 (37 Vic, c. 9), ss. 96 and 98. See also Young v. Smith, 4 Sup. Ct, Can. 494. 610 DOMINION ELECTIONS. [A,D. omission — that voters who were entitled to vote have been deprived of their rights, and that if what the statute required had really been done, a different result would have followed. In the absence of this being shown, these objections would not have any weight; and this para- graph was given up on the argument. The result is that all the paragraphs in the petition stand except the 12th : that all the preliminary objections are overruled except the 1st and the 8th, and if it is shown at the trial that the petitioner had not the neces- sary property qualification, he cannot be seated, but he may still show that respondent was not duly ele cted. Spragge, C. — I have entertained some doubt whether the voters' lists under the Provincial Statute, 32 Vic, cap- 21, are not conclusive, so far as the property qualification of voters is concerned, though I confess I feel the force of the reasoning by which an opposite conclusion is arrived at. Section 5 of the Act defines the property qualification entitling a person to vote. Then follow other sections, making provision for the registration of voters and the making out by municipal officers of lists of persons en- titled to vote. Then follows sec. 7, subsec- 10, as follows: " No person shall be admitted to vote unless his name appears on the last list of voters made, certified, and delivered to the Clerk of the Peace at least one month before the date of the writ to hold such election ; and no question of qualification shall be raised at any such elec- tion, except to ascertain whether the party tendering his vote is the same party intended to be designated in the alphabetical list as aforesaid." Sec. 41 provides for an oath being administered to a voter by the deputy return- ing officer. This oath is in proof {inter alia) of property qualification in the real estate in respect of which the voter's name appears on the voters' list ; also as to his being a British subject ; as to his being of age ; and that he has not voted before at the election, and has not re- ceived or been promised anything to induce him to vote. 1874.] NORTH VICTORIA. 611 An oath being required as to the property qualification o£ the voter, is raising a question of 'qualification other thati the question of identity, so that even at the election itself the voters' list is not conclusive as to the right of a person whose name is upon it, to vote : and if not conclu- sive there, it is, a fortion, that it would not be conclusive upon a scrutiny upon the trial of an election petition. Upon subsec. 10 alone I should have felt some doubt, for the defining of the qualification in sec. 5 was necessary to the registration of voters, and preparing the lists for elec- tion ; and the provision in sec. 6 might well be introduced in the Act for that purpose only; but sec. 41 and the voters' oath show that the voters' lists were not intended to be conclusive. The voter is required to swear that at the final revision and correction of the assessment roll he was actually, truly, and in good faith possessed to his own use and benefit as owner, or tenant, of the real estate in respect of which his name is on the voters' list ; and I agree in thinking that the fact whether he was so possessed is a fact necessarily open to question upon a scrutiny. Hagarty, C.J. C.P., concurred. /to 612 DOMINION ELECTIONS. [A.D. NORTH VICTORIA. Before Mr. Justice Morrison. Lindsay, Jfii to 10th November, IS'H,. Hector Cameron, Petitioner, v. James Maclennan, Respondent. Hiring of teams — Bribery —Offers to bribe — Division Court bailiffs. Where the amounts paid for hiring teams were fair and reasonable, such hiring was not bribery under the Dominion Controverted Elections Act, 1873. Where a canvasser for the respondent received money for hiring teams, and hired from those indebted to him, and agreed with them to give them credit for the respective amounts to be paid for the teams, such an arrangement was not evidence of corrupt practices. Money given to a person to hire a team and to go round canvassing, held, on the evidence, not bribery. One L., a tavern keeper, was told by H., one of respondent's canvassers, that he thought L. could get $18 or |20 from P., if he would stay at home during the election. L. expected that the money would be spent at his tavern, and showed that he did not know what was intended. Neither H. nor P. were examined : Held, on the evidence, there was no actual offer to bribe. Observations on the impropriety of Division Court bailiffs canvassing voters during an election. The petition is set out on p. 384. The petitioner and respondent were the candidates at the election. After the decision of the Election Court on tlje preliminary- objections, the petition was brought on for trial. The Petitioner in person for petitioner. Mr. John D. Armour, Q.C., for respondent. The general facts of the case are set out in the judg. ment. Morrison, J. — I quite concur in the observations made by the petitioner, in closing his argument, that from the evidence throughout there is not the slightest suspicion of an imputation against the purity of the respondent's dealings in or about the election, or that the slightest suspicion exists that he did not honestly do his utmost to avoid any act and anything illegal or contrary to the 1874.] NORTH VICTORIA. 613 principles of the election law ; while, on the other hand, he appears to have acted with the utmost care and cau- tion, and with a true desire to avoid and prevent any- improper act. I may further aVid that in taking into account that the riding consists of thirteen townships, in many of which the voters are sparse and reside apart, and have necessarily in many cases considerable distances to go to the polls, the expenditure of money — which principally, if not all, was spent in hiring conveyances — was, in my opinion, very moderate indeed. I shall now proceed very briefly to state the conclusions I have arrived at on the charges of bribery and corrupt practices. As to the general point raised by the petitioner with respect to the hiring of the teams as being a corrupt practice, and so avoiding the election, I must follow the decision of the Election Court in this and other cases, which has decided, as I take it, that it is not a corrupt practice per se to hire vehicles, &c.; and I am of opinion that in this case the amounts paid for teams hired were only fair and reasonable, and that the hiring did not in any case amount to bribery. In the particular charges, the first I have to consider is that of James Stewart, who was a member of the respond- ent's committee. It appeared he expended a sum of money — ^not more than $40 ; $30 of which he got from Capt. Sinclair, the agent of respondent. He accounted for the expenditure in the hiring of teams (a riiemorandum of which he kept at the time and produced), and in hiring a. person to take out check-books to the polls. It is alleged that he paid $4 improperly to one Carmichael, who was also on the committee, telling him he might require it during the election; that he applied a large portion of the $30 contrary to his instructions (viz., in paying for- teams) ; and that instead of paying money to the parties, he merely gave them credit for the amounts. Mr. Car- michael testified that while he received the $4 he did not require it, did not spend it, and that he retained it for the committee, and that he did not receive it for any 614 DOMINION ELECTIONS. [A.D. improper purpose. Mr. Stewart swore that the amounts paid for the teams were reasonable, and that he had hard work to get teams for the price, as the weather was rough, and that the amounts paid or credited for the teams had nothing to do with the way in which the owners should vote, and that there was no understanding about it. I . have no reason to doubt the truth of Mr. Stewart's or Mr. Oarmichael's statements, and I see no reason for thinking that they were dealing corruptly in the matter. As to the charge against Alexander Fraser, who swears that he was neither a member of a committee nor an agent of the respondent, but that he acted as a mere supporter, it appears he received $12 from Mr. Stewart and $12 from Capt. Sinclair, which moneys it is quite clear he got for the purpose of hiring teams ; and he swears he engaged five teams. It is alleged against Fraser that although he got the moneys to pay for teams, that the persons whose teams he hired were persons indebted to him. It appears that he was a blacksmith, and that he had accounts against them, and he told them respec- tively that he would credit them with the respective amounts, and that they said it would be all the same as money. It was suggested that he only hired four teams. Fraser, however, swears that he hired five, and it is urged that in obtaining the money, and not paying the parties money for the teams, is evidence of a corrupt act, or a corrupt arrangement between the giver of the money and Fraser ; in other words, that it was not received by him for the purpose alleged-. There was nothing in evidence to support this. The conduct of Fraser may be open to observation for engaging the teams of persons who were indebted to him ; but I cannot see that this sharp practice on his part made the giving the money to him, or his mode of using it, bribery or a corrupt practice. Fraser did not appear to be prompted by a corrupt motive, but his mode of dealing was not straightforward. As to the charge against Mr. Margach. He was an active canvasser for the respondent ; he received $24 from the 1874.J NORTH VICTORIA. 615 respondent for his own personal expenses ; and it appears he made an arrangement with one Hartle to go round and canvass. Hartle had no team of his own, and Mar- gach told him to hire a team, and gave him $20 or $30 to pay for hiring and personal expenses ; and as Margach has not yet got an account of this money, it was urged that this engaging of Hartle was a corrupt act. I fail to see it in that light from the evidence adduced. Then as to Hartle's dealings with Thomas Leary. From the latter's testimony it appears that, according to his own statement. Peck and Hartle were desirous that he should stay at home during the election; that Hartle said to Leary he thought he could get $18 or $20 from Peck if he did so. Leary stated that he expected it was to spend in his bar ; and that having ascertained imme- diately after the conversation that the petitioner would be a candidate, he determined not to stay at home, and he voted for the petitioner. Hartle was not called ; Peck was, but was not examined in relation to the matter. No doubt an offer to bribe is as bad as an actual payment; and if the case made out is that of an offer to bribe, as said by Martin, B. in the GhAtenham case (1<0'M. & H. 66), '' the evidence required should be stronger than in respect to bribery itself ; it ought to be made out beyond all doubt ; because when two people are talking of a thing which is not carried out, it may be they honestly give their evidence, but one person may have understood what was said by another differently fr.om what he intended." Here we have only Leary 's evidence, and he does not prove an actual offer to bribe, but merely that Hartle said he thought he might get $18 or $20 from Peck if he would stay at home. Leary did not expect to get the money even if Peck assented, but that the money would be spent at his tavern. Leary showed in his evidence that he clearly did not understand what was intended. I do not think that I should be warranted upon such testimony to hold that there was' an actual offer to bribe, 616 DOMINION ELECTIONS. [A.D. and particularly without Peck and Hartle being examined on the subject. With reference to the McGillivrays' case. It is evident that the McGillivrays were in the hands of the bailiff from time to time, and very probably they supposed MeSwain had the Taylor execution when he called with Boadway and asked how the McGillivrays intended voting, and find- ing that McSwain and his companion were canvassing for the respondent, they thought it better not to vote, not be- cause any undue influence in fact was used, but upon the expectation that they would receive further favors from the bailiff by adopting that course. I don't hesitate to say that it is a highly improper act for the bailiff to canvass parties against whom he had an execution ; I will further add, canvassing at all. We all know that persons in the station of life of the McGillivrays, when in pecuniary difficulties, may be strongly influenced by a bailiff with- out anything being said, except how they are going to vote ; and the Legislature would do well to prohibit can- vassing by Division Court bailiffs. On the whole, I am of opinion that the petitioner has failed to prove that any bribery Or any corrupt practice was resorted to by the respondent or his agents. A scrutiny of the votes having taken place, it was found that both candidates had an equal number of votes, and it was then agreed that the election should be declare d void, which was ordered. (9 Commons Journal, 1875, p. 16.) 1874.J NOKTH SIMCOE. 617 NORTH SIMCOE. Before the Election Court.* Toronto, 26th June and 16th July, 1874. Hezekiah Edwards, Petitioner, v. Herman Henry Cook, Respondent. Preliminary objections — Whether petitioner disqualified by bribery, the party are to be, considered responsible ; yet, taking them altogether, a number of little pieces of evidence do produce an effect on my mind which leads me to say that, • according to the usual rules in parliamentary matters, this, which is certainly an act of corruption, is so closely brought home to the agents and persons in authority as to constitute them accessories to it, and for which the candidates ought to be responsible. I cannot come to any other conclusion than that this act is one which avoids the election." There is one other case to which I shall .refer for the language of the Judge — the Taunton case (30 L. T. N. S. 125). Grove, J., sa.id : " I am of opinion that to establLsh agency for which the candidate would be responsible, he must be proved to have by himself, or by his authorized agent, employed the persons whose conduct is impugned to act in his behalf, or have to some extent put himself in their hands, or to have made common cause with them — all these, or either of these — ^for the purpose of promot- ing his election. Mere non-interference with parties who, feeling an interest in the success of the candidate, may act in support of his candidature, is not sufficient in my 1874.J NORTH VICTORIA (2). 695 judgment to saddle the candidate with any unlawful acts of which the tribunal is satisfied he or his authorized agent is ignorant." In the Westbury case (20 L. T. N. S.' 24), Willes, J., said: " If I find a person's name on a committee from the beginning, that he attended meetings of it, that he also canvassed, that his canvass was recognized, I must require considerable argument to satisfy me that he was not an agent within the meaning of the Act." In the same case (1 O'M. & H. 48) it is also said, that authority to canvass certain workmen would not be an authority to canvass beyond those workmen. With respect to anything done as to voters other than those workmen, it might very well be said that was no agency, but within the scope of the authority to act as agent there was quite as strong a responsibility, on the part of the candidate, as there would be in the case of a general authority to canvass. In the Penin/n case (C. & D. 61) one Sewell, on the au- thority of resolutions passed at a meeting in the borough, went to London and brought down the sitting member as a candidate. The two attended a meeting together, going there in company. Sewell was appointed chairman by the company present. It was a meeting of the sitting- member's friends. Sewell accompanied the member gene- rally on his canvass, and he attended on the hustings. During the poll Sewell introduced a voter, saying he, Sewell, had brought him down as a candidate, and Sewell was not called on to contradict these facts. Held, that agency was established. Speaking prominently on the hustings in support of a candidate, and canvassing on his behalf, coupled with offers of money, constitute a man an agent to the extent of proving corrupt practices : Lancaster case (14 L. T. N. S. 276). The parliamentary practice of holding candidates civilly responsible for the acts of their agents, although the agents have exceeded the limits of their power, rests on a better and more satisfactory basis than is commonly 696 DOMINION ELECTIONS. [A.D. ascribed to it. It is this : It is a well known rule of law and of equity that a person cannot take the advantage of an act procured by and founded on the fraud of another, although it is committed by that other as his agent, with- out his knowledge, without being liable to lose that which he has gained by such means, or to be in some other respects liable for the fraud : Barwick v. English Joint Stock Bank (L. R. 2 Ex. 259); Udell v. Atherton (7 H. & N. 172, as explained in L. R. 2 Ex. 265) ; New Bruns- wick R. R. Go. V. Gonnybeare (9 H. L. 711). It would be manifestly unjust to the public that a candidate should secure his election by the corruption, or other improper means of his agent ; and while taking the benefit of the acts done, repudiate the exercise of those powers which the other as his general agent had used for his benefit, and in his business and interest, although the agent was not authorized to do these specific acts. The public can have no relief in such a case, and it is the public which is most concerned, but by 'the invalidation of everything which has been wrongfully accomplished by such means. The agency which I must determine to exist or not is this : Did the candidate authorize the person whose con- duct is impugned to act in his behalf ? Or, did the candidate to some extent put himself in the other's hands, or make common cause with him in the election, and for the purpose of promoting it ? And the means by which I must determine it are the evidence which was given before me, tested by the rules and instances so copiously given in the different election reports, and sufficiently referred to in the cases which I have before mentioned. The person said to have been the petitioner's agent is William Peters. It is better I should consider and dispose of this part of the case before determining whether the act charged against Peters was an act done corruptly or not, because that matter would possibly require more con- sideration than the one of agency ; and if it should appear there was no agency, it will become unnecessary to consider the nature of the act done by Peters in any way. As to 1874.J NORTH VICTORIA (2). 697 the alleged agency, Peters said in effect, that he was an inn- keeper on the Victoria Eoad, and kept the inn there before and at the time of the last election. There was a meeting at Ashby's house, in the township of Garden, before the election. It was Cameron's meeting. Witness thinks he was chairman of the meeting. He took Cameron's side at the election and at the meeting. He opened the meeting. He said Cameron was there canvassins for the election. Did not know who moved he should be chairman. He put up some notices in his house of that meeting, and he sent some by Ashby or by some of the neighbors. The notices were sent to witness to be distributed. Cameron was up at witness' inn several times when he was in that part. Cameron came from Ashby's meeting in witness' cutter, and put up at witness' inn that night. There was no understanding that witness should be at the meeting. He was at the place of polling on election dajr. He never asked a man that day to vote on one side or the other. The following is in his own words: '*Two or three days before the election I asked Ashby if he was going to get up dinners for the voters. He said he was not. He had done it before, and people did not pay him, and he was a poor man, and he could not do it for nothing. I told him he had better get up the dinners on account of the voters having to come so far to vote, and no place for them to get dinner. He said he could not unless some one would guarantee to pay for it ; that at a former time he had given dinner to about eighty, and some one went round with a hat and- gathered up $4.50, and that was all he got. I told him if he would get up the dinners I would guaranteee and see him paid for forty dinners. I asked what he would charge apiece, and he said twenty-five cents. I said I would give him t^jrenty cents apiece ; it was enough, as I had to pay it out of my own pocket. He would not agree to it for less than twenty-five cents. I told him to get up the dinners. I paid for the forty- dinners I spoke to Cameron about making such an arrangement before speaking to Ashby. 698 DOMINION ELECTIONS. [A.D. He said he could not do it unless Maclennan and he agreed to do it ; that he durst not do it ; we could not interfere in it ; that the law would not allow it. I said the law must be very strict if it would not allow a man to get his dinner. I asked him if it would hurt the election if I paid for tlie dinners out of my own pocket. He said he did not know ; he said he could not do any- thing about it unless with Maclennan's consent. I don't recollect if I told him I would give the dinners. Cameron and I did not speak of the way it was to be done. He did not seem to approve of it, in case it should interfere with his election. ... I made an arrangement with Ash by that I was to pay for forty of Mr. Cameron's voters. ... 1 took no steps to get my money back. I took three bottles of whiskey that day from my place to Ashby's — other people did so too. I left the whiskey in care of Mr. Malally, the father of Mrs. Con- nors, at Mr. S. Connors' house. I think I gave a treat as well to some of Maalennan's friends as to Cameron's. I refused to give James Sample his bitters because he had not voted. I said to go and vote ; I would not treat him till after that, in case it should be said I had bribed him. He did not get his bitters." In cross-examination he said : " I do not recollect I ever canvassed any voter ; there was no tavern nearer Ashby's than my place, a distance of five miles. I heard the people say they had to come twenty or twenty-five miles to vote there. Cameron had his own team at Ashby's the night of the meeting. I asked him to ride with me, and he did so ; it was by chance he rode with me. Cameron told me a candidate could not provide dinners j for voters for the purpose of influencing their votes .directly or indirectly; that there was no way of his getting round it only with Maclennan's consent. I never applied to Mr. Cameron for payment of the $10, and never expected it. I never got from him any money but the ordinary tavern bills while he stopped at my house. I did not know if the persons I gave some of the tickets for dinner to had votes or not; or whether they were for 1874.] NORTH VICTORIA (2). 699 Maclennan or not. I kept cautious as I was giving dinner not to ask any man for his vote, in case Mac- lennan got a claw on me. I was not a voter." The petitioner was examined on his own behalf. He said it was while driving with Peters from Ashby's meeting that Peters first spoke to him of the dinners. Peters said some arrangement should be made for dinners for those who came a long way to vote. " He asked me if I could make ^ny such arrangement. I said I could not, directly or indirectly; the law was very strict, and I would not jeopardise the election by anything of the kind. I was sorry for the people, and I would see Mac- lennan and speak to him, and we might come to some arrangement about it. When I saw Maclennan it escaped my memory. Some days after that Peters spoke to me again of the dinners. I said I had forgotten to speak of it to Maclennan, that I could make no arrangement, or be a party to it in any way. He asked me if there was any harm in his paying for the dinners out of his own pockets if he chose to do so. I said I could not prevent him if he chose to do it ; but I did: not want him to do it, as exceptions might be taken to it ; that if done by an agent it was the same as if done by myself ; and although he was not my agent, I would rather he would not do it. I never spoke to Ashby on the subject nor he to me. I did not hear or know of Peters giving dinners on that day, and 1 was at the poll there from about two p.m. till after the poll closed. I was in the polling room nearly all the time." That is all the evidence material on this part, of thgi case. Is there upon this statement any evidence of the petitioner having appointed Peters his agent, or of his allowing or authorizing him to act on his behalf ? Is there any evidence that the petitioner to some extent put himself in the hands of Peters for the purpose of the election ? I think I must say that a perusal of the evi- dence shows there is not a particle of evidence to sustain the assertion that Peters was the agent of the petitioner. 700 DOMINION ELECTIONS. [A.D. The fact of presiding by chance, as it were, at the peti- tioner's meeting at Ashby's, at which the petitioner was present, and at which Peters was present just as any one of the neighbors in that part upon both sides was present, and of his opening the meeting by speaking a few words in favor of the petitioner, are circumstances not to be wholly disregarded in trying the question of agency or no agency, but they are utterly insufficient of themselves to show that the petitioner had thereby to any extent put himself in the hands of such a person to represent him as a general agent. So also the receiving of some bills by Peters, and his putting some of them up for the intended meeting and some of them up in his own house, and forwarding others for distribution, are of no weight whatever alone to show anything like agency on his part. It was not shown the petitioner knew of the bills being so sent to and in turn sent off by Peters, and if he had known it such acts would have had force only by what they could add to other matters, but they would have been of no significance whatever of themselves. Nor do they, with the addition of the fact of the chairmanship and of the short address of Peters, amount to anything requiring any serious consideration. They do not show that the petitioner put himself in Peters' hands, or suffered Peters to act for and represent him, If an agency could be made out of these materials, it would, under the law, already severe enough in that respect, be quite intolerable. It would exclude the com- monest acts of kindness and hospitality between neigh- bors. It would ostracize the candidate by keeping him estranged from the electors, who should have every opportunity of becoming acquainted with him. It would prevent association at a time when combination was especially useful, and it would well-nigh stop social inter- course altogether. I entertain no doubt that the acts to which I have alluded are not, and cannot be deemed, sufficient to establish agency for any purpose or to any extent, and thinking so, it is right I should plainly say, so. 1874] NOETH VICTOEIA (2). 701 Then, did the conversation between the two as to the dinner constitute Peters the agent of the petitioner ? It was not contended by the respondent that the first con- versation was sufficient to establish the character o£ agent or agency. No doubt it did not do so, but repelled it altogether. The second conversation, it was contended, did, of course in connection with all the other circum- stances, and by the force and effect of their addition and accumulation, create Peters the agent of the petitioner for the purpose of providing for the dinners which were given and paid for by him. It is so contended, because the petitioner said among other things, when he was asked by Peters if there was any harm in Peters paying for the dinner out of his own pocket if he chose to do so, and he, the petitioner, answered that he could not prevent him if he chose to do it, but he did not want him to do it, and he would rather Peters would not do it ; and it was argued by the respondent that the petitioner was bound to have given a positive denial to Peters. Jhat the peti- tioner should have told him he must not do it, or that he should not have used such language as that he, the petitioner, could not allow him to do it, and that he, the petitioner, could not prevent him and did not want him to do it, and he would rather it was not done. But can it be said if such language even as that is used, and the speaker really means what he said, and is not covertly affording an approval of the act he is assuming and pre- tending to condemn — and I have not the least reason for thinking the petitioner did not really mean what he said — that agency has been established, that the petitioner had put himself into the hands of Peters for that purpose ? The language of Mr. Justice Grove, already quoted, is : " Mere non-interference with parties who, feeling an inte- rest in the success of the candidate, may act in support of his candidature, is not sufficient in my judgment to saddle the candidate with any unlawful acts of which the tribunal is satisfied he or his authorized agent is ignorant." But the petitioner said more, far more, than the respondent 702 DOMINION ELECTIONS. [A.D. has, on his argument addressed to me, assumed he did say. The petitioner plainly disclaimed having anything of the kind done, or recognising it if it were done. In my opinion the petitioner repudiated all connection with the business of the dinners, and Peters perfectly understood he did so, and that he was doing so. AVhile the numerical majority is on the side of the petitioner, I must consider him to be the person who is rightfully entitled to the seat until that right is displaced, and I must look upon the charge which is made against him as if it were in effect made against the sitting mem- ber. In the language of Martin, B., in the Warrington case (1 O'M. & H. 44), " I adhere to what Mr. Justice WiUes said at Lichfield, that a Judge to upset an election ought to be satisfied beyond all doubt that the election was void, and that the return of a member is a serious matter, and not to be lightly set aside." I refer also to what was said by the same Judge in the Wigan case (1 O'M. & H. 192) : " If I am satisfied that the candidates honestly intended to comply with the law, and meant to obey it, and that they themselves did not act contrary to the law, and bona fide intended that no person employed in the election should do any act contrary to the law, I will not unseat such. persons upon the supposed act of an agent unless the act is established to my entire satisfaction." I apply the same language to this case, and I add that I will not unseat the sitting member or prevent the per- son who has the numerical majority from having the seat upon the supposed act of an agent unless the agency is established, to my entire satisfaction, and in this case that has not been done ; on the contrary, the fact of agency has been disproved, disclaimed, and repudiated in the most explicit and emphatic manner ; and it is well that it is so, for it is the only act that has been mentioned as having . been done throughout this election of the nature attributed to it ; and no doubt, if there had been any acts of a more serious or even of the like nature, they would not have lain concealed, considering the strong personal interests 1874.] NORTH VICTORIA (2). 703 which enter into contests in this constituency, where the majorities in several of the late elections have been only- three or four for the successful candidate. I must say this election contrasts most favorably, for all parties, with some of those which have been held in other places, and which have not been creditable to the parties concerned, and which must sorely have tried the faith of those who believe in the excellency of popular representation, when they find those who were supposed to be the honest and actual choice of those who were supposed to be the free and independent electors of a constituency holding their seats by the mere force of money or undue influence ; not by an election, but by a contract of sale and purchase which was as bad on the side of the pur- chased as on that of the purchasers. From all that, and anything approaching it in any respect, this election and the candidates stand unquestionably free. I have already said that if the charge of agency were not maintained) and in my opinion it has not, it would be unnecessary to consider whether the giving of dinners by Peters was or was not bribery, or treating within the meaning of the Act. The point was argued before me very fully by the respective parties, and many cases were cited as applicable to it. I am not sure what opinion I should have formed with respect to it. It is not impro- bable, if the agency had been established, that although the electors had come from ten to twenty-five miles to the poll, and there was no inn nearer than five miles to it, I should have held it to have been a violation of the statute. I must, of course, have been satisfied that it was corruptly done ; that is, done for the purpose of influenc- ing the election either by voting or not voting, before I could have found the offence to have been committed ; and it is not so perfectly plain that a free dinner, given by a candidate to a hungry voter, who has travelled twenty miles in a Canadian winter day in January to the poll, is necessarily, and as a mere consequence, a corrupt act. I do not know any law which would prevent a candidate 704 DOMINION ELECTIONS. [A.D. from giving a voter in such ^ season, and on such an emergency, a bit of bread and cheese for himself, or a lock of hay and a drink of water for his horses. These are matters of degree : the manner in which, and the number perhaps to whom, these services were rendered, and the more or less need there was for the act, must all be con- sidered. Such questions are difficult to deal with, because of the almost inevitable tendency they have to operate upon the voter, and the difficulty there is in discovering the true motive for the candidate's liberality at such a time, and the danger there is in permitting any such thing to be done when the gain is so immediate and it is so very likely to be the leading cause for so much activi- ty and kindness. It is sufficient to say that I have not made up my mind on that part of the case, and I am glad it is not necessary I should do so. My leaning, however, at present is more against the rightfulness and lawfulness of that transaction than in support of it. I have given this case a careful consideration, and determining this matter of agency as I do, I must decide that the petitioner having the majority of votes in his favor, upon an inspection of the ballot papers only, is the person who was duly elected for the North Riding of the County of Victoria, at the last election for the Dominion Parliament, held for the said North Riding, and that he should have been returned as the person so duly elected, and that the election and return of the respondent for the said riding at the time aforesaid were and are void. I must award the general costs of the cause and pro- ceedings to the petitioner to be paid by the respondent, with the exception of the costs relating to that part of the petition which applies to the voters whose names were not upon the copies of lists furnished to the deputy returning officers, but who were entitled to vote, and should have been admitted to vote at the said election, because I have not judicially determined that part of the petition, and with the exception of the cost of the scrutiny 1874.] SOUTH RENFREW (2). 705 of the ballots, because such rejected ballots were not the fault of either party, but of the deputy returning officers. The parties must each bear his own costs with respect to these last mentioned matters* The petitioner appealed to the Court of Queen's Bench, but the Court affirmed the judgment of Mr. Justice Wilson (37 Q. B. 234). (10 Commons Journal, 1876, p. 24). SOUTH EENFREW (2). Before Mr. Justice Wilson. Renfrew, Zlst September, 1875. , William McKay et al., Petitioners, v. John Lorn McDouGALL, Respondent. Defective Nomination Papers — Returning Officer — Costs. The nomination paper of B., one of the candidates at the election com- plained of, was signed by twenty-five persons, and bad the affidavit of the attesting witness duly sworn to as required by the statute. The election clerk found that one of the twenty-five persons was not entered on the voters' lists, and thereupon the returning officer and election clerk compared the names on the nomination paper with the certified voters' lists in his possession, and on finding that only twenty-four of the persons who had so signed were duly qualified electors, he rejected B's. nomination paper, and returned the respond- ent as member elect. Held, 1. That as the policy of the law is to have no scrutiny, or as little as possible, in election cases, and to give the people a full voice in choos- ing their representatives, the defect in the nomination paper was one to which the returning officer should not have yielded. 2, That if the election had gone on the defect in the nomination paper would not, according to the 20th section of 37 Vic, c. 9, have affected the result of the election. Semhle, that the returning officer is both a ministerial and a judicial officer ; and that he might decline to receive the nomination of persons disqualified by status or office, and also nomination papers signed by unqualified persons if he had good reasons for so doing. The returning officer having acted honestly and fairly in rejecting the nomination paper, each party to the petiticjn was left to bear his own costs. The formp.r election for this constituency having been declared void {ante p. 556), a new election was held on 24th October, 1874, at which Mr. William Bannerman and the respondent were candidates. The returning * See the case as to the revision of costs, 89 Q. B. 147. 706 DOMINION ELECTIONS. [A,D. officer rejected Mr. Bannerman's nomination paper on the facts set out below, and returned the respondent as member elect. The petition was thereupon filed to set aside the election. Mr. Gockbum, Q.C., for petitioner. Mr. Bethune for respondent. The evidence showed that on the day of nomination the nomination papers of William Bannerman and of the respondent were delivered to the returning officer. The election clerk, on examining them, found that Banner- man's nomination paper had twenty-five names thereon, but that one of the twenty -five was not on the voters' lists. The returning officer then took legal advice, and on comparing the names with the official copies of the voters' lists, found that William Tierney, one of Bannerman's nominators, was not qualified as a voter. Bannerman's nomination paper had been duly sworn to by one Muir accorJing to the statute. Some negotiations then took place between the respective candidates and the return- ing officer to allow the nomination papers to be amended, although the hour for closing the nominations had passed, but the friends of the respondent would not consent, and thereupon the returning officer, acting under legal advice, rejected the defective nomination paper, and returned the respondent as member elect. The other facts appear in the judgment. Wilson, J. — The petitioners complain of the rejection of Mr. Bannerman's nomination paper. It is not said that Tierney's name was then upon the list, nor is it contended so now ; and it appean he was not on the assessment roll for 1873, in i aspect of real property, but. it is said there were the names of twenty-five persons on the nomination paper as, and purporting to be, the names of actual bona fide electors of the South Riding, and twenty-four of them are so in fact, and the twenty-fifth was honestly believed to be so too. That it was a 1874.] SOUTH KENFREW. 707 genuine paper and not a sham document, and being so, althougli as a fact William Tierney was not an elector, yet the paper being duly sworn to according to the statute, the returning officer was bound to accept it, and to act upon it as a genuine truthful document. It is said that he and the election clerk raised and took an objection which was not apparent on the face of the document, and that they discovered it by an examination of the voters' lists, and that such a proceeding was in eiFect a judicial investigation and inquisition held without authority, and determined contrary to law. For the respondent, it is said that the returning officer is not wholly and only a ministerial officer; that he is necessarily, and in fact has certain judicial functions to perforin ; that he is by section 11 of the Act to decide on the number of polling places to be appointed ; that he has to grant a poll by section 24 if more candidates than can be returned are nominated in the manner required by the Act ; and he is by section 23 to report any nomination proposed or rejected for non- compliance with the requirements of the Act ; and that in all cases when the objection to the candidate or voter or to the nomination paper is patent or notorious, he may act judicially ; and that he cannot receive a nomination paper with only twenty-four names to it, for that would be the same as if he received it with less than the number of twenty-five electors in fact upon it. I am of opinion the returning officer is both a minis- terial and a judicial officer. He has not now, as formerly, to hold an inquisition into the capacity or qualification of a candidate or voter ; but I feel assured if a person appeared and was nominated, and such candidate were a woman or a mere child, that the returning officer could decline to receive such a nomination, and in like manner he can decline to receive the nomination of a Chief Justice or the Speaker of the Senate. I think also he ■ may refuse a nomination paper signed by less than twenty-five electors, because the Act requires that the nomination shall be by twenty-five. I am disposed to 46 708 DOMINION ELECTIONS. [A.D. think, too, he can reject a paper signed by twenty-five if it were declared by the candidate that the paper was a sham ; that the names were those of persons who were not electors at all, and never had been ; or that half the names were forgeries ; and if there were good reasons for the returning officer to believe that statement, and he did believe it. It is not every paper in the form of a nomination paper, however formally it may be prepared, that is to govern a returning officer, for that would be to make a farce of the whole proceeding, and to put parties to an unneces- sary and vexatious expense, when it was known before- hand that it would be all to no purpose. I feel a great difficulty in dealing with this case. The nomination paper was formally, on its face, correct. It was prepared and intended to be a correct document. It was honestly believed to be correct, and it was used fairly and truly for the purpose of an election, and it was a surprise to Mr. Bannerman and Mr. Muir, the attestant, to discover that William Tierney, one of the twenty-five, was not entered on the voters' list. I have no doubt the returning officer acted honestly and with perfect pro- priety in all respects according to the best of his judg- ment, and he acted on the legal advice which he sought for and followed in rejecting the paper. He had the means, to some extent, by him to verify the correctness of the persons' names in the paper being electors or not — assuming that electors mean those persons who were electors on the lists to he used at that election. I think, however, with much hesitation, that the defect in this case, which I have no doubt exists, was one to which the returning officer should not have yielded, and it certainly was not accepted or yielded to by Mr. Bannerman, but was resisted by him, and the fact that the affidavit was wrong at all was denied by Mr. Muir. By reason of this one defect — one rather of form than of substance, for Tierney was in fact a real property holder who should have been on the list, and a defect not 1874.] SOUTH RENFREW. 709 appearing on the paper, but found by an examination of it with the voters' lists — the electors have been prevented from voting for and electing their own representative, when, in truth, if the election had gone on, this defect could not in any manner whatever, according to the 80th section, have affected the result of the election. The policy of the law certainly is to have no scrutiny, or as little as possible, in such cases, and to give the people a full voice in choosing their own representatives. That has not been done here, and I must hold the election, according to the best opinion I can form, to be void. I acquit the returning officer in every respect from all blame, and I am of opinion he acted honestly and fairly to all parties ; and if he erred, which, with some doubt, I think he did, he did so where many might equally have erred. He was anxious to have no difficulty raised, and his judgment was fortified by competent legal advice. I must leave each party to bear his own costs. (10 Commons Journal, 1876, p. 32.) 710 DOMINION ELECTIONS. [A.D. NORTH RENFREW. Befoee Me. Justice Wilson. Pembroke, 30th June, 1st and 2nd July, 1875. Before the Court of Queen's Bench. Toronto, 2nd and 23rd December, 1875. Peter White, Petitioner, v. William Murray, Respondent. Cumulative evidence — Offers and promises affirmed and denied — Costs. A number of separate charges of corrupt practices against an agent of the respondent, based upon offers or promises, and not upon any act of such agent, each of which depended upon the oath of a witness to the offer or promise, but each oue of which such agent directly contra- dicted, or gave a different color to the language, or a different turn to the expressions used, which quite altered the meaning of the conver- sations detailed, or constituted in effect a complete or substantial denial of the charges attempted to be proved against such agent Held, I. That although in acting on such conflicting testimony, where there was a separate opposing witness in each case to the testimony of the witness supporting the charge, the Election Judge might be obliged to hold each charge as answered and repelled by the counter evidence, he could not give the like effect to the testimony of the same witness in each of the cases where the only opposing witness is confronted by the adverse testimony of a number of witnesses, who, though they do not corroborate one another by speaking to the same matter, are con- tradicted in each case by the one witness. 2. That the more frequently a witness is contradicted by others, although each opposing witness contradicts him on a single point, the more is confidence in such witness affected, until, by a number of contradicting witnesses, he may be disbelieved altogether. 3. That acting on the above, and on a consideration whether the story told by the witness in support of the charge is reasonable or probable in itself, the charges of corrupt practices against the agent of the respondent, set out in the judgment, were proved. The petitioner was held entitled to the costs of the charges on which he succeeded, and the respondent to the costs of the charges on which the petitioner failed. The election held on the 29th January, 1874, having been avoided (9 Commons Journal, 1875, p. 6), a new election was held under the Dominion Elections Act, 1874, at which the respondent was declared elected. A petition was then presented against his return, containing the usual charges of corrupt practices. Mr. F. Osier and Mr. Thomas Beacon for petitioner. Mr. Maclennan, Q.C., for respondent. 1874.] NORTH RENFREW. 711 The evidences in support of the charges in the petition are set out in the judgment. Wilson, J. — At the close of the evidence there was nothing shown to sustain either the personal charges or those alleged to have been committed by an agent with the knowledge of the respondent ; and the case rested on the evidence given by the witnesses hereinafter named, and the counter statement of Thomas Murray, the brother and general agent of the respondent at the election in question. The petitioner's counsel also relied upon the evidence given by other witnesses, not for the purpose of proving any substantive charge in respect of the matter relating to them, but for the purpose of giving effect to the charges relied upon as connected with the persons before men- tioned, and as showing the general course of conduct pursued by the agent Thomas Murray throughout the election. I shall take up the charges seriatim and dispose of them. And here it may be proper to observe that they are all based upon offers or promises, not upon any act of or thing performed by Thomas Murray, the general agent of the respondent. And while admitting the general cir- cumstances and much of the narative, and in the very words of each one of the witnesses in his account of the particular transactions which he relates, Thomas Murray gives a different color to the language and a different turn to the expressions which were used, which quite alter the meaning of the conversations detailed by the witnesses, and so constitute in effect a complete or substantial denial of the character of the charges attempted to be proved against him. He also, however in many respects directly contradicts the witnesses. If I were to act upon his opposing testimony in all nine cases in like manner as I might probably do if there were a separate opposing witness in each case to the testimony 712 DOMINION ELECTIONS. [A.D. of the witness who supports each charge for the petitioner, I might feel justified, and, all other things being equal, I might be obliged, to treat the case proved as answered and repelled by the counter evidence. But I cannot give the like effect to the testimony of the same witness in each of the nine cases as I should, as a general rule, be required to give if there were a different witness in each case, when he, the only opposing witness, is confronted by the adverse testimony of nine persons, who, although they do not corroborate one another by speaking to the same matter, agree in this that they each and all of them contradict in material matters this one witness. The contradiction by many persons, each speaking of a separate matter, of a single witness, who testifies as to the whole of these transactions, must naturally shake if not destroy the confidence which might be placed in that witness if he were opposed by the testimony of only one or two witnesses, speaking either of the same or of separate transactions. The word of only one witness can hardly be held to coun- terbalance the testimony of many witnesses, and he be held to be alone right or truthful, and the cloud of witnesses who are against him be all deemed to be wrong, although each one of these opposing witnesses speaks only to an independent fact or circumstance not spoken to by any of the others. If an action were brought to recover the amount of six promissory notes, and the defendant pleaded a denial of the making to the first note ; that he was an accommo- dation party to the second ; the plea of payment to the third ; that he was discharged by the plaintiff as to the fourth ; that there was a failure of consideration as to the fifth ; and that there was fraud as to the sixth. And if his single testimony in maintenance of his respective defences were met by a single and different witness to each matter against it, it would be hard to say that the array of witnesses against him on these different 1874.] NORTH RENFREW. 713 matters was entitled to no more consideration than if only one of such defences wer.e on trial, and the plaintiffs sole witness was opposed by the defendant's sole testi- mony. It is impossible to avoid seeing and feeling that the more frequently a witness is contradicted by others, although each opposing witness contradicts him on a separate point, the more is our confidence in that single witness affected, until at length, by the number of con- tradicting witnesses, we may be induced in effect to disbelieve him altogether. It is difficult to believe that so many are wrong ; it is easier to believe that one is wrong so many times ; and the more there are who speak against him, the more we are led to believe that he is the one who is in the wrong. I stated this generally during and at the close of the argu- ment of counsel on the trial, and I feel it right to state it again as governing me very much, perhaps I may say altogether, in deciding upon the evidence. I do not say from this that when a witness has been contradicted by five or six credible witnesses on so many different points, that I must then believe anything which others, however extravagant or idle, may say against him. I must, notwithstanding that state of things, first «f all determine whether the story told by the witness in the first instance is reasonable or probable in itself, and if it be not, I should disregard the story, and so I should not be called upon to weigh what was said against it. If as against six different witnesses speaking each to a single fact, I believed three of them against the one, and believed the one as against the other three, I should feel a difficulty in determining how far to treat the one as discredited by the first three, when his veracity had been strengthened by the belief accorded to him as against the second three. The question of veracity does not depend only upon the strength of numbers, nor in some cases does it so at all. 714 DOMINION ELECTIONS. [A.D. Its true basis is character. It is upon the quality of the evidence, and the point is to determine that quality. And I should still have to consider the whole case both for and against the one witness before I could say whether I ought to believe him or disbelieve him as to the remain- ing three. I submit these general observations at the outset, in order that I may apply them in such a manner as I shall have to deal with the evidence upon each charge as I take it up. ] . The first case is that which rests upon the transaction which took place with Alexander Bell. The facts stated were, that at a previous election, when Thomas Murray was a candidate, William Murray, the present respondent, employed one John Robinson to canvass Bell, and to hire him to work at $20 a month. Bell voted then for Thomas Murray, and after the election he went with his clothes to go to work for William Murray, who would not employ him, and he had to hire with some one else at $15 a month, and he lost, as he believed, the difference of $5 a month. It appears that Thomas Murray did ask Bell to sign the requisition of the respondent, and, it may be, to vote for him also. Bell refused to do either one or the other in very plain terms. He said he had voted for White before, and he would do it again. Bell said that Thomas Murray said to him, " Come with us this time, and I'll make it all right, or try to make it all right ! " He is very positive of it. Thomas Murray denies very strongly having said that or anything like it. He says, " I said to Bell that, apart from elections and politics, we wished to sustain our name as business men, and if I could get Bell and my brother face to face, and if any injustice was done I would have it rectified, and that Bell should not let these matters interfere with politics anyway." Matters standing in that way between the two principal parties, the evidence of John Robinson has to be con- sidered. He says that Thomas Murray said, " If Bell had 1874.] NORTH EENFREW. 715 been at a loss by his brother previous to election matters, he, Thomas, would make it all right, or try to make it all right ; I mean by previous to election matters, that Thomas was referring to business matters." No doubt he was referring to business matters ; but the question is, was he referring to them in connection with the election contest then going on, and for the purpose of influencing Bell's vote ? Bell said he was ; Thomas Murray said he was not; Robinson is not very clear either way on the above statement. But he also said that Bell said he had lost $15 or $18 by the contract not being carried out, and that Thomas answered just as Bell had said, " he. Bell, had better come with us this time, and he, Thomas Murray, would make it all right, or try to make it all right ! " which latter statement was ex- pressly in connection with the then election proceedings. The weight of evidence is, I think, rather with the petitioner than with the respondent ; and if it were the only charge, it might be capable of being viewed some- what differently than when it is one of a greater number, and all or many of which are supported by the evidence of the persons called to prove them, while they are ex- plained or repelled by Thomas Murray in the like manner in which he has referred to this particular charge. If effect has to be given to this charge, it must be felt to be exceedingly hard upon the respondent, for all that took place, even as Bell represents it, had not the slightest effect upon his vote. He refused from the first to support the respondent, and he declared he meant to vote for the petitioner. He declared also that he desired nothing in any form. He never accepted the offer or promise he says was made to him, and he declared at the time he would not and did not do so. If, however, the ojffer of any valuable consideration is, as it is expressly declared to be, bribery by the 37th Vic, cap. 9, sec. 92, subsec. 1, it is not for the Court or Judge to interfere with the enactment otherwise than to give it effect when the penalty attaches. 716 DOMINION ELECTIONS. [A.D. 2. The second charge relates to Augustus Mphns. He said Thomas Murray, about two weeks before the polling day, met him in Pembroke. He said witness had a good vote. He asked me who I was going to vote for ; I said, nobody ; he said, I had to vote. He asked who I voted for the last time ; I said, Mr. Murray. He said, I would have to vote for him again. I said, no ; I lost time every year. He said, he would come good for my time. The promise made to me by Mr. Murray did not induce me to go to vote. Thomas Murray, for the defence, said as to the charge, " I asked Mohns for his name on my brother's requisition. He first declined ; he did not want to lose his time in going to elections. I said, his time would not be lost ; it was his duty to go. I explained to him my brother was the proper man to support ; he was the Government candidate ; and going to vote would be a day well spent. I said nothing to him of making good his time to him ; I thought of nothing of the kind." I have no reason to doubt the statement of the witness Mohns. He had no object in fabricating a story. The strong interest of Thomas' Murray for the respondent's cause would induce him to go as far as he thought he safely could go in talking with the electors ; and for that interest he might go further than he had intended to go, or thought he had gone in his conversations with them. I decide this charge solely by reason of the weight which the evidence of Mohns acquires from the concurrence, as it were, of that of the other witnesses, from their testi- mony being all adverse to that which was given by Thomas Murray. 3. The third charge is that relating to Robert Pollock. His case is that when Thomas Murray, Mr. Stone and Mr. Jackson, called upon him lately before the last elec- tion, " Thomas Murray asked me for my vote. I had not supported Mr. Murray before that. He asked me to support his brother. I called him to one side and I told him my objections. I said I was hard up then, and the 1874.J NOETH RENFREW. 717 man that would oblige me I would oblige him. I went on to tell him of some matters, and I mentioned money, and he said, don't mention about money, the law is strict. As he was coming away he said to me, ' If I don't, call me no gentleman ; and I would not that for half your farm.' No one else was present at the conversation. Murray and I then went to the front part of the house where Stone and Jackson were, and Murray said to them, ' I think Mr. Pollock is all right,' or 'Mr. Pollock is going to give my brother his support or vote.' ... It comes to my memory now that after I had said to him that I would oblige him who would oblige me, he said, 'Wait till after the election.' ... I did not see Mr. Murray after that till the following day at the polling place in Wiest- meath. He asked me then if I was going to vote for his brother. I think I told him I was all right. I referred that day to our former conversation by saying ' it was all right.' . , . After the election I asked Thomas Murray if he could lend me a little money, and I would pay him interest on it. He said he had no money. He said, ' I think I gave you to understand I did not or could not promise you money on account of voting.' He said he had bought a lot of cattle, and he had not money to pay for them. I said I would give him any interest he asked." And he said he was influenced by what passed between him and Thomas Murray before the election, for " the impression made on my mind by our conversation was that he would oblige me after the election." I can- not say I was influenced by what he said the impression made on his mind was. In cross-examination he said : " He, Thomas Murray, asked me for my vote while Stone and Jackson were by. I asked him to go apart." He recapitulated his evidence in chief. Thomas Murray's account of the matter was as follows : " I said to Pollock I was going about getting names on my brother's requisition ; that I supposed he knew my •brother was a candidate. He said he did not know. He 718 DOMINION ELECTIONS. [A.D. would be likely to be friendly to those who would be friendly with him ; that he said in presence of the other two. I said, I don't know what you exactly mean. If you mean I should hold out any inducements to you to get your vote, I wish you to understand I do not do so I want to conduct this election on legal grounds. Stone and Jackson said to Pollock he had better give me his name for my brother ; that he was the Government candi- date. Pollock then called me away from the others a little way. He made the same remark again to me. I said, I had already told him my mind upon it. He began to tell me his troubles and difficulties. I said, I did not want to hear them. He said he would like to borrow money. I said. Don't mention money ; I did not want him to do it. He got excited. I pressed him to support my brother, and that he had better give me his name, as Stone and Jackson, and others of his neighbors, had done or would do. He said. Well, he did not know but he would give me his name ; that I had the name of being a gentleman, anyway. That is all that was said. I did not say anything of the law being strict about money ; I think Jackson said it to him. I said nothing to him of ^ ' call me no gentleman;' nor did I say to him, ' If I don't, call me no gentleman.' I said nothing to him of ' half his farm' or of the whole of his farm. Nothing was then said of anything being done after the election. I did not say to him to wait till after the election. I saw him on the polling day. Did not speak to him on that day. I saw him about a month or so after the election in my store. He wanted me to lend him $100 or so. I said I had no money to lend ; we required it all for our business. He said he did not know but I might lend him the money after the election. I said I did not give him to under- stand I would do so, and he must know it ; and he said. Yes, he did know it. He said. Could he not get it from the other party ? I said I did not know. The general impression was he voted the White ticket, anyway. He was annoyed. I did not give him to understand in any- 1874. J NORTH KENFREW. 719 way, in any conversation with him, I would do anything for liim in connection with the election ; on the contrary, I tried to evade it." In cross examination he maintained his original state- ment. He added he would not believe Pollock on his oath. In this matter it was observed upon by the petitioner's counsel that Stone and Jackson, who were present, accord- ing to the evidence of Thomas Murray, at a good deal o£ the conversation spoken of by Pollock, had not been called as witnesses by the respondent. It is a fair subject of comment. If, however, they had been called, they could only have spoken to the earlier part of the conversation. It would certainly have been important to have had their testimony. Here again is another witness opposed to the same witness for the respondent, and there is no reason to dis- believe him, especially, when it is of the same nature as that spoken to by the other witnesses on the other charges. 4. The fourth charge relates to Martin Melchar. All that took place, as he says, with him was that which happened on the polling" day, when Thomas Murray asked him for his vote and if he were going to work on his side. The witness then said, " He, Murray, did not promise me anything. He said if I worked on his side or voted on his side, to go after the election was over to see him. I went to him after the election. He said I had not voted for him. I thought I was to get something. I thought I could go when I liked. I told him 1 had worked for him. He said I had not worked for him. He told me that right off on the street when I saw him." The matter is not wholly free from some slight sus- picion, but it is all so indefinite that it cannot be safely said there was a promise implied ; there was certainly no express promise to do anything for the witness after the election. " Going after the election was over to see him " does not necessarily mean that he was to go for a corrupt purpose ; it may or may not be so. It is a matter of fact 720 DOMINION ELECTIONS. [A.D. and of inference, and I think I ought not to infer it from the facts stated. .5. The fifth charge was spoken to by Antoine Ross- orski. As to this charge, it is not disputed that Thomas Murray had a bet of $400 on the result of the Wilberf orce poll, as before stated. Haase and Rossorski both say that Thomas Murray mentioned to them that he had a bet of $500 on the election. Thomas Murray denies having mentioned it to either of them. Rossorski says also that Thomas Murray told him he held such a bet, and he, Rossorski, could get some of it when he voted for the respondent, and Rossorski said, " That will do." Haase says that Thomas Murray, on the same occasion, said to him, he, Murray, had such a bet, and he said, " I'll give you ," when he was called away and did not finish his conversation with him, but began talking with Ashmore of betting the $500 with him. I think Rossorski's character is not so impeached by the evidence given against him by the Rev. Mr. Jenkyns that I must disbelieve him, considering the evidence in his favor given by Leach and Ashmore. I think also that the evidence of Haase shows a strong probability of Rossorski's account being a true one, for very nearly the same thing was, it may be inferred, being about said to Haase which it is said was said to Rossorski. Rossorski has shown a very strong desire to unseat the respondent, and therefore his conduct and evidence must be very carefully considered, for he is plainly both au adverse witness and an adverse political partizan. Thomas Murray also appears, with respect to the par- ticular poll at which Rossorski was a voter, to have had an interest of a pecuniary nature of not the most satisfac- tory kind, considering the deep personal interest he had in the contest on behalf of his brother as well as of his party. The bet was that White would not have a greater majority at that poll than 15, while it turned out he had 20. While the voting was so close in that township, it was the interest of Thomas Murray, with a bet of $400 1874.J NORTH RENFREW. 721 on the result of it, to expend some part of it by the acqui- sition of a few voters in order to gain the much larger part of it remaining. And when to that are superadded the natural desire to win the bet just for the sake of winning it, although no money is dependent upon it, and the natural desire to carry the election successfully all over, which was secured by a further bet of $400, it appears, I think, the probabilities of the case are quite in agreement with the positive testi- mony of Rossorski, and which is corroborated in part by the evidence of Haase. This charge, I think, I must find to be sustained. 6. The sixth charge refers to the dealing with John Schultz. Here again there is a direct contradiction between the two witnesses. The one, Schultz, swears he was to have $22 for the cow if he voted for the respondent ; the other, Murray, that the $22 was given upon Schiiltz's agreeing to drive the cow back to Murray's pasture if she broke from it and went back to Schultz's place. It must be admitted the consideration or inducement was one of a small amount. It is useless trying to reconcile the two statements. I should perhaps, as I have already said of the other charges decide this against the petitioner if this were the only charge, but as it is one of a series of charges, each one of which is supported by a different witness, I do not know what I can do even in so small, I may say so trivial a matter, unless I give effect to the accumulated weight of testimony, when I have no reason whatever to doubt the truth of the respective witnesses who maintain these charges. 7. The seventh charge is the one in connection with . Andrew Halliday. He said Thomas Murray asked him if he might put the witness's name upon his brother's requisi- tion. The witness said. Yes, if the other pleased, and the witness then said, Thomas Murray said that generally they did not forget their friends. He did not say it would be all right, nor anything of money. I do not attach any weight to this charge, even as it is stated, and besides, Thomas Murray denies it. 722 DOMINION ELECTIONS. [A.D. 8. The eighth charge relates to the dealing with John Douglas. Here again the story is o£ the like character against Thomas Murray, an offer or promise made in the like indirect manner as in the other cases, and spoken to by a man and in a manner which caused no suspicion of the truthfulness of the transaction he spoke of. Thomas Murray admits he tried to get Douglas's vote for his brother, and that they did talk aside for some time, and that Douglas did speak of $40 or $50 being due by him to some of White's people, and that he was afraid to act on Murray's side partly in consequence of it. He admits also that he said $40 or $50 was not a killing affair anyway, and that by the ballot the way of the voting would not be known, and that he did say at the second conversation, " Mr. Douglas, you know me well enough to know that I would not like to see any man injured." He denies any promise or offer made, or inducement held out, or stronger or different language having been used than he has mentioned, but he says he may possibly have said if Douglas voted for his brother, he, Douglas, would not be sorry. Now, Douglas's story, in a few words, is that Thomas Murray said, after a good deal of solicitation on Murray's part for Douglas's vote, and after Douglas had told his wants, position and expectations, " If you vote for my brother you will not be sorry for it, and I will do the square thing with you ; " and that he said so very soon after having said, as Douglas stated, " Hang it, $40 is not much." A very little more than Murray has admitted would convert his story into Douglas's account of the trans- action. But as they each stand, there is evidence from which an offence may be inferred in the one statement but not in the other. And the question is, which of the two accounts am I to act upon ? As I have already said, I think, as I do not disbelieve Douglas, the probabilities for what has been before said oblige me' to accept of his narrative, although, as I have said more than once, were that the only charge made, I should not consider it to 1874.] NORTH RENFREW. 723 be substantiated against the contradiction given to it by Thomas Murray. 9. The ninth charge relates to the sale of oats by John Luck, Jr. He said that Mr. Foley, the respondent's assistant bookkeeper, told him the price of oats was 40c. a bushel, but he would give the witness 43c. if he would vote for Mr. Murray, and Luck answered he was not selling his vote, but if he, Foley, would give the 43c. a bushel, he. Luck, would take him at his word, and that the oats were sold accordingly ; Foley telling Luck not to tell the other clerk who weighed the oats what price he was getting. Luck had 5 or 6 baigs of oats. Foley denied this statement. He said Luck asked 45c. a bushel, and he split the difference with him, and gave him 42^c. It is not clear that there is any agency proved on the part of Foley to bargain in the manner reprtesented, although there was a requisition in favor of the respondent left on the counter, and those in the shop were to ask persons to sign it. But if there were, Foley's denial is entitled to as much credit as Luck's assertion; and the transaction, altogether perhaps about 15 bushels oats, at 3c. per bushel extra would only be 45c., does not induce one to lay any great stress upon it. It is true that farmers and others are very particular and pertinacious about the highest cent for their produce or articles of sale, and that a very small advance of price may operate as a su^cient inducement to some persons, even on a small quantity of anything, to consider how they should vote at an election, or to change their votfe, or to make a promise to vote. And the smallness of the transaction is not a reason for disbelieving the whole story. And if the story be proved the charge is main- tained, and the offence is just as complete as if the inducement, in place of being a small one, had been a large one. I consider, as to this charge, that Mr. Foley's evidence has satisfactorily answered it. There were many other charges attempted to be proved, 47 724 DOMINION ELECTIONS. [A.D. whicli failed ; and the evidence was very long. The case must depend upon those already referred to. I am obliged, from the conclusion I have come to, to give effect to the prayer of the petitioner. And I shall certify, also, that no corrupt practice has been committed, according , to the evidence, by or with the knowledge and consent of any candidate at the said election.; that Thomas Murray, the agent of the respondent, has been proved at the trial to have been guilty of corrupt practices, for and in respect of and towards the six persons ; that I have found these charges laid against the respondent have been proved ; and that corrupt practices have not extensively prevailed at the said election. The costs of the proceedings will follow the result. The petitioner will receive from the respondent the costs of those charges on which he has succeeded ; and he will pay to the respondent the costs of those charges on which he has failed. If this election fail, it is only from the strictness, perhaps from the severity and harshness, of the provisions of the Election Law. I have no doubt that the offers and promises I have been compelled judicially to act upon, had not, assuming them all to have been made, the slightest effect upon any one of the votes or voters, with respect to which and to whom the offers or promises are said to have been made. And undoubtedly they had no effect upon the general result of the election, which was, with the exception of these mere offers, conducted, so far as I have been able to discover, upon both sides with general purity, and upon the whole, I think, with a desire to conform to and keep the law. If relief be given it must come from the Legislature ; I can only do what I am obliged to do, which in many cases is as painful to the personal feelings of the Judge, apart from the consid- eration as to which side in politics the respondent niay be upon, as any duty which could possibly be imposed upon him.* * The judgment in this case was not approved by the Court of Appeal in the Ahis- koka case, ante pp. 458 and 474. 1874.] MONCK. 725 The petitioner appealed from this judgment to the Court of Queen's Bench ; but the Court held that as the learned Judge had found that corrupt practices had been committed by an agent of the respondent, the appeal should be dismissed. (10 Commons Journal, 1876, p. 21). MONCK. / yU^ SiU Before Mr. Vige-Chancellor Blake. Toronto, 8th, 10th and 17th Jawwary, 1876. Petek Gkant et al.. Petitioners, V. Lachlin McCallum Respondent. Ballots — Scrutiny — 37 Vic, cap. 9, ss. S8, 1/5, 80. — Effect of neglect of duty by a deputy returning officer. — Marking ballot paper. The neglect or irregularities of a deputy returning otEcer in his duties under the Dominion Elections Act, 1874, will not invalidate an elec- tioD, unless they have affected the result of the election or caused some substantial injustice. Held, therefore, that the neglect of a deputy returning officer to initial the ballot papers, and to provide pen and ink instead of a pencil to mark them, would not avoid the election. The following irregularities in the mode of marking ballot papers, held to be fatal : 1. Making a single stroke instead of a cross. 2. Any mark which contains in itself a means of identifying the voter, such as his initials or some mark known as being one used by him. 3. Crosses made at left of name, or not to the right of the name. 4. Two single strokes not crossing. The following irregularities held not to be fatal : 1. An irregular mark in the figure of a cross, so long as it does not lose the form of a .cross. 2. A cross not in the proper compartment of the ballot paper, but still to the right of the candidate's name. 3. A cross with a line before it. 4. A cross rightly placed, with two additional crosses, one across the other candidate's name, and the other to the left. 5. A cross in the right place on the back of the ballot paper. 6. A double cross or two crosses. 7. Ballot paper inadvertently torn. 8. Inadvert nt marks in addition to the cross. 9. Cross made with pen and ink instead of a pencil. The election held on the 29th January, 1874, having been avoided (10 Commons Journal, 1876, p. 6.), a new election was held, at which the respondent and Mr. James 726 DOMINION ELECTIONS. [A.D. D. Edgar were candidates. The respondent was declared elected by a majority of four votes over Mr. Edgar. A petition was then filed, claiming the seat for the latter, on a scrutiny of the ballots. Mr. Hodgins, Q.C., and Mr. Edgar, for petitioner. Mr. McCarthy, Q.C., and Mr. F. Osier, for respondent. The objections taken to the ballots appear in the judg- ment. Blake, V.G. — The parties did not desire that I should state a case for the opinion of the full Court in respect of the matters raised, which seemed to me to involve ques- tions that it would have been well to have had settled by the Court on a rehearing. I proceed, therefore, at once to dispose of the petition, so as to enable the party dissatisfied, if he pleases, to appeal the case during the coming month. The considerations applicable to two of the questions raised appear to me to differ from those which should regulate the disposition of the other points discussed. I refer to those irregularities which arose from the acts of the deputy returning officers — the one, the use by the electors, |in some instances, of pen and ink, supplied by this officer in place of a pencil ; the other, the use of ballot papers in the election not marked by the deputy returning officer, as contemplated by the Act. The duty cast upon this officer is clearly defined by the statute. The 2nd clause in the " Directions for the guidance of electors in voting," in Schedule I, is as fol- lows : " The voter will go into one of the compartments, and with a pencil there provided place a cross opposite the name or names of the -candidate, or candidates, for whom he votes, thus X ; " and subsection 4 of section 28 enacts that the returning officer is to furnish each deputy returning officer " with the necessary materials for voters to mark their ballot papers." The latter portion of sec- tion 43 deals with the other point : Each elector " shall 1874J MONCK. 727 receive from the deputy returning officer a ballot paper on which such deputy returning officer shall have pre- viously put his initials." It is to be regretted that these officers, by their culpable neglect in omitting to observe these plain and simple rules, should cause the difficulties which have arisen in the present case. Having under- taken these duties, they should have fulfilled them with intelligence, care and honesty, and they may be deservedly censured for involving the candidates in the difficulties and expense connected with the present scrutiny. It does not better their position that possibly their irregularities and mistakes may be covered by a healing clause in the Act. Section 80 makes the following provision : " No electi'on shall be declared invalid by reason of a non-com- pliance with the rules contained in this Act as to the taking of the poll . . . or of any mistake in the use of the forms contained in the schedules to this Act, if it appears to the tribunal having cognizance of the question that the election was conducted in accordance with the principles laid down in this Act, and that such non-com- pliance or mistake did not aflfect the result of the election." The principles laid down by the Act seem to be secrecy in voting, and the removal of difficulties in the way of an elector exercising his franchise. There seems to be no doubt that the election in question was conducted in accordance with these principles. It cannot be said that the irregularities complained of affected' or bore upon the result of the election, nor were they calculated to do so. It was not even argued that any injury of the kind has here arisen — that any other than the provided ballot papers had been used, or that the vote of any one not entitled to vote had been received. The neglect of the officer should not be visited on the elector or candidate, unless it is apparent that it has or might have caused some substantial injustice. Of the 132 votes cast in Pelham division. No. 1, it is said 130 are open to the objection that the ballot papers were not initialed by the deputy returning officer. I do not 728 DOMINION ELECTIONS. [A.D. think I should lightly disfranchise so large a body of the electors, nor should I lightly say the irregularity is of such a nature as to disfranchise, and this disfranchise- ment being so general, the whole matter must be set at large and a new election ordered. I am of opinion that, under this clause, irregularities of the nature here relied upon in order to invalidate the election must be substantial and not mere informalities ; that the informality must be of such a nature as that it may reasonably be said to have a tendency to produce a substantial effect upon the election. I do not think the irregularities here complained of in any manner interfered with the election being a real one, nor did they in any manner affect the result, and therefore they cannot be raised as grounds for avoiding it. This view is corrobo- rated by the finding in the Hackney case (31 L. T. N. S. 72). There Mr. Justice Grove says : " An election is not to be upset for an informality or for triviality. It is not to be upset because the clock at one of the polling booths was five minutes too late, or because some of the voting papers were not delivered in a proper manner, or were not marked in a proper way. The objection must be something substantial, something calculated to affect the result of the election." It must also be borne in mind that if the Court lightly interferes with elections on account of errors of the officers employed in their conduct, a very large power may thus be placed in the hands of these men. That which arises from carelessness to-day may be from a corrupt motive to-morrow, and thus the officer is enabled, by some trivial act or omission, to serve some sinister pur- pose, and have an election avoided, and at the same time to run but little chance of the fraudulent intent being proved against him. I therefore disallow the objections taken to votes given by means of ballot papers marked with the pen and ink provided in the polling booth, and to those given on the ballot papers provided by the returning officer but not initialed by him. 1874..J MONCK. 729 There were three other points argued before me : 1. What mark sufficiently expresses the intention of the elector as to his voting ? 2. Where must this mark be placed? 3. What additional mark warrants the rejection of the ballot paper ? The following portions of section 45 and of Schedule I. deal with the first two of these questions : '- The elector ... . shall . . . mark his ballot paper, making a cross on the right-hand side, opposite the name of the candidate . . . for whom he intends to vote." " The voter will . . . place a cross opposite the name ... of the candidate . . . for whom he votes, thus X." It is also to be noted that in the form given the cross is not exactly opposite the word " Roe," or the words " Richard Roe," but appears as follows : II. ROE. RiOHAKD Roe, Town of Prescott, County of GrenviUe, Merchant. X I think that every reasonable latitude that can be given to an elector as to the form or position of his mark, with- out a direct evasion of the statute, should be given to him. The Act, however, requires that this mark should be a cross, and it also requires that this cross should be on the right-hand side, opposite the name of the candidate. I cannot say, therefore, that, so far as the mark is con- cerned, the elector has complied with the Act when in its place he puts a single line. I must rather conclude that the elector, for some purpose, desired to go merely through the form of voting, and expressed this intention by placing such a mark there as evidenced his design of not complying with the requirements necessary to allow his ballot to be counted for either of the candidates. The single stroke does not show a concluded intention of voting, for only a portion of that which is the defined figure is thus made. The voter is told that if he puts a cross in a particular place, which is well defined on his 730 DOMINION ELECTIONS. [A.D. ballot paper, his vote will be accepted ; if he does not choose to do that, he loses his vote. It may be that at first this rule will work hardly ; but soon a matter so easily comprehended will be perfectly known through- out the country. In the meantime, the price paid for obtaining secrecy in voting will be the virtual disfran- chisement of a small proportion of voters who have not learned how to vote under the present system. Until the mark loses entirely the figure of a cross, I think it should be allowed. It may be imperfectly made ; there may be additions to it from nervousness, or awk- wardness, or by way of embellishment. There may be several lines crossing another line or other lines ; the one line may lie upon the other at any angle ; the one line may cross the other but a short distance ; yet so long as it is possible to say the figure can be taken as that of a cross, it would be the duty of the Court to say the intention of the elector is sufficiently defined tq allow his bailor to stand. As with the form of the cross, so with its position. I do not think it necessary that it should be exactly opposite either the word " Eoe " or " Richard Roe." It may be above or below a line produced, from the end parallel with the end of the ballot-paper It need not be in the compartment in front of the name, but the moment it ceases to be on the right-hand side, then it is no longer in the place which indicates an inten- tion of voting, and therefore must be rejected. If it be correct that the form of the mark, such as a line or circle, vitiates the ballot, I do not think it unreasonable to say that the position of the mark may have the same effect. A man who pretends to vote puts a stroke and nothing more, and knows his ballot paper will be rejected; a man who does not want in reality to vote may just as well say, " I will place my mark or cross to the left of the name and thus, though apparently voting, vitiate my ballot paper." I think it is safer, in a case where the wording is so plain as here, to require a reasonable compliance with that which it lays down as being the requirements 1874.] MONCK, 731 of a ballot paper whicli is to be accepted, rather than enter into a minute examinati9n of the position of each cross, -and endeavor to assign some reason in each case for that which virtually is an evasion of the plain language of the Act. The third point raised depends on the true construction of section 55 and Schedule I. : The returning officer shall reject all ballot papers "upon which there is any writing or mark by which the voter could be identified." " If the voter places any mark on the ballot paper or envelope by which he can afterwards be identified, his vote will be void and will not be counted." The marks found on the ballot papers are : (a) Additions or embellishments to the figure intended to represent the cross, and by which such figures might be distinguished from other crosses, (h) Marks made inadvertently near the cross, and which have arisen evidently from nervousness or awkwardness^ (c) Distinct lines or figures made in various places on the ballot paper. The Act does not say any mark, or any mark deliber- ately made, but a writing or mark by which the voter could be identified. I think the mark must contain in itself a means of identification of the voter in order to vitiate the ballot. There must be something in the mark itself, such as the initials, or some mark known as being one the voter is in the habit of using. If there be not this restriction, then it will naturally follow that every pecu- liarity about every cross should be scanned in order to see whether some of the additions were not put there design- edly so as to mark distinctively that particular ballot paper. Any mark in addition to the cross might thus avoid the vote ; and, on the same principle, any alteration in the position of the cross from a rigid observance of what is set forth in the Act should be taken as a means of denoting the ballot as one marked so as to require its rejection. I think if the Legislature intended this result we should have found different language used from that which we have in this enactment. 732 DOMINION ELECTIONS. [A.D. I proceed on the above rules to scrutinize the votes objected to on both sides. The petitioner had 1,329 votes and the respondent 1,333, leaving a majority of four votes for the respondent. In Canboro', No. 1, there were four ballots for Mr. Edgar rejected, which rejection is objected to. This affords a fair example of the necessity of observing with exactness the rules prescribed by the Act. The deputy returning officer here employed pen and ink. The crosses in these four cases were distinctly made opposite the name Edgar, and in the proper position on the ballot paper. The voter folded the paper down at once, and accurately, which made an impression opposite the name McCallum. We have by this means a cross opposite the name Edgar, and another cross identical in form opposite the name McCallum. On a close inspection it is apparent that the upper cross is the original one, and that the lower, or Mc- Callum one, is caused merely by the paper being brought into contact with the mark, the ink of which was not dry. These four votes should therefore be allowed to Edgar. Gaistor, Wo. 1. — There was a cross to the left of the name properly rejected. Dunnville, No. 1. — There were four votes rejected for Edgar. One was improperly rejected, the mark being a cross to the right hand and opposite the name. Two were crosses to the left of the name, one being simply a stroke with a pen through the figure " 1 " of the year " 1875," which appears on the ballot paper to the left of the name, and the fourth was a single stroke. These three were properly rejected. Moulton and Sherbrooke, No. 1. — There was a miscount. The numbers returned were thirteen for Edgar and one hundred and fifteen for McCallum, whereas it should have been twelve for Edgar and one hundred and sixteen for McCallum. Wainfieet, No. 1. — There were four rejected for Mc- Callum, one of which I allow, being a well defined cross with a line running through its centre. 1874. J MONCK. 733 Wainfieet, No. ^.— There were two rejected for Mc- Callum ; one properly, as being a cross to the left of the name ; the other improperly, there being a well defined cross opposite " McCallum," and a single stroke opposite " Edgar." So that up to this point there should be added to the number of votes polled for Edgar, as being improperly rejected, five, and there should be deducted for the mis- count, one ; leaving the total addition to be made four, and thus giving the number of votes polled for him thirteen hundred and thirty-three ; and there should be added to the number of votes polled for McCallum, as being improperly rejected, two, and for the miscount, one; thus making the number of votes polled for him thirteen hundred and thirty -six. Of the votes allowed by the returning officer, I find the following : Oaistor, N^o. 1. — An inadvertent pencil mark, allowed ; a ballot paper inadvertently torn, allowed. GaistoT, No. 3. — One single stroke disallowed ; one cross with a line before it, allowed. Ganboro', No. 1. — A ballot paper inadvertently torn, allowed ; an inadvertent additional pencil mark, allowed ; four marked with pen in place of pencil, allowed ; two with single lines in place of crosses, disallowed ; one ink cross blotted, allowed. Ganboro', No. 2. — One cross not to right hand of name, disallowed ; one, not a cross — a circle with two lines underneath — disallowed ; one with a cross in the proper place and a second cross erased, allowed. Dunnville, No. 1. — A single stroke, disallowed; a double cross, allowed. Bwrvrmille, No. 2. — One single stroke, and one cross not to the right hand of the name, disallowed. Oainsboro', No. 1. — One cross not to the right hand of the name, disallowed; one with a mark on the cross, allowed ; two with single strokes, disallowed ; two with 734 DOMINION ELECTIONS. , [a!d. a cross to the left hand of the name, disallowed ; one ballot paper torn, allowed. Gainsboro', No. 2. — One cross not to the right hand of name, disallowed ; a ballot paper inadvertently torn, allowed ; two with a cross not to the right hand of name, disallowed ; one ballot paper inadvertently torn, allowed ; one with a cross properly placed, but with an obliterated mark in the McCallum column, allowed. Gainsboro', No. 3. — One single stroke, disallowed ; two single strokes, and two crosses not to the right hand of the name, disallowed. Gainsboro', No. 4.. — One ballot paper inadvertently torn, allowed ; one with an inadvertent mark under the cross, allowed. Moulton and Sherbrooke, No. 1. — A cross on the back of a ballot paper for McCallum, allowed.* Moulton and Sherbrooke, No. 2. — One with a single stroke, disallowed; one with three crosses — the one in the proper compartment, the other across the name Mc- Callum, and the third in the left compartment — allowed. These crosses were so placed, I think, because the voter was uncertain where the mark should appear. As there is a cross rightly placed, I do not think the vote should be rejected because of the additional crosses. One single stroke, disallowed. Moulton and Sherbrooke, No. 3. — One single stroke, and two with crosses not to the right hand of the name, dis- allowed ; a fourth, with the cross to the right hand of the name in small letters, allowed ; two single strokes, dis- allowed. Pelham, No. 1. — Two crosses opposite name, allowed; an erased mark opposite Edgar's name, in addition to a cross opposite McCallum's name, allowed; one single stroke, disallowed. Pelham, No. 3. — One single stroke, disallowed. * This decision was not tollowed in the South Wentwarth case, ante p. 636. See also the Berwiek-upoTi-Tvieed case (3 O'M. ft H. 182). 1874.] MONCK. 735 Wainfleet, No. 1. — Two with a cross not to the right hand of the name, and an additional mark, disallowed. Wainfleet, No. ^. — Two single strokes and one cross not to the right hand of the name, disallowed; one single stroke, disallowed. Wainfleet, No. 3. — One single stroke, disallowed ; one with a second cross, allowed, it not appearing that the mark identifies the voter. This disposes of all the objections made ; and deducting the votes disallowed Edgar (19) from the votes allowed (1,333), would leave the number of votes polled for him 1,314 ; and deducting in like manner the votes disallowed McOallum (18) from the votes allowed him (1,336), would leave the number of votes polled for him 1,318. This would give him, as the result of the investigation, a majority of 4 votes, and he is therefore entitled to retain the seat. I have therefore to declare that Mr. McCaJlum has been duly elected and returned, and' I shall certify that to the Speaker. (10 Commons Journal, 1876, p. 47). 736 ■ DOMINION ELECTIONS. [A.D. HALTON. Before Mr. Justice Patterson. Milton, 10th to 12th November, 1875. Before the Court of Appeal. Toronto, Slst December, 1875, and S2nd January, 1876. David Cross et al. Petitioners, v, William McOranby, Respondent. Unsupported Offers of Bribery — Payment of Travelling Expenses — " Wil- Jid" — "Corruptly" — Limited Agency — Agents — Appeal. A promiae to work for a voter, made without reference to the election and as a joke, not evidence of bribery. A charge that the respondent promised to give a voter certain work to do if he voted for him, was disproved by the evidence of the respondent and another, and by the admissions of the voter made to other parties. One L. , a voter, hired a horse and cutter on the day of the election, and with M., a scrutineer for the respondent, drove to the poll and voted. The day after the polling L. and M. returned to their homes, and on the way M. gave L. $4 to pay for tiie horse and cutter. ffeld, 1. That the payment of |4 having been made after the election, and not having been maile corruptly to influence the voter to vote for the respondent, was not a corrupt practice or a wilful violation of sec. 96 of 37 Vic, cap. 9. 2. That M's. agency was a limited one, and had ceased before the pay- ment in question. Semble, That the term " wilful," as used in sec. 98, cannot be construed in a narrower sense than the term ' ' corruptly" in sec. 92, snbsec. 1 ; and that the term " corruptly" does not me.m wickedly, or immorally, or dishonestly, but doing that which the Legislature plainly meant to forbid ; — as an act done by a man knowing that he is doing what is wrong, and doing it with an evil object. A year before the election the respondent paid part of the charges of a lawyer retained by one 0. to attend the revision of the assessment rolls. 0. at the time of the election attended one of the respondent's meetings at which he stated that his own mind was not made up, but he urged that the respondent ought to have the support of the voters, he being a local man ; and in three or four instances 0. asked vottrs to vote for the respondent. The respondent and his friends distrusted 0., and in no way recognized him as acting with them. Held, That 0. was not an agent of the respondent for the purposes of the election. The evidence in support of the offer of a present, or something nice, to the wife of a voter to induce the voter to refrain from voting, showing that it had reference, to a difiFerent election than the one in question, an amendment of the particulars was refused, and the charge dis- missed. The charge against the respondent and one B. , of an offer of money to, and to procure an appointment as Justice of the Peace for, a voter in con- sideration of his voting for the respondent, was supported by the evidence of the voter, who showed bitter hostility to B. ; but the charge was denied by the respondent. And the evidence showing 1874.J HALTON. 737 the statement to be improbable, and that the election contest was carried on by the respondent with a scrupulous and honest endeavor to avoid any violation of the law against corrupt practices, the charge was dismissed. The former election for this constituency having been avoided( 9 Commons Journal, 1875, p. 22), a new election was held, at which the respondeat was elected. A peti- tion a,^ainst his election was then presented, containing the usual charges of corrupt practices. Mr. Hector Cameron, Q.O., Mr. James Beaty, Q.C., and Mr. D. McOihhon, for petitioners. Mr. Bethune and Mr. John Dewar for respondent. The evidence affecting the election appears in the judg- ment. Patterson, J.A. — The particulars in this case set out about one hundred charges of bribery by the respond- ent or his agents. Evidence has been given respecting forty of these charges. At the close of the evidence the counsel. for the petitioners confined the charges to seven cases, and very properly did so, as the evidence, given did not afford a shadow of support to the other thirty-three. The seven charges insisted on were the following, viz. : 1. Bribery of John Allison by John Ramsay, an agent of respondent, " promising to work for Allison without charge." 2. Bribery of John Fluelling by the respondent, " by promise of money, or receiving money for his vote, and promise of work or employment after polling day." 3. Bribery of John Lambert by John McLeod, an agent of respondent, "by promise to pay and payment of travelling expenses from Guelph to polling place." 4. Bribery of John Peake by Wm. Caldwell, an agent of respondent, " by promise of money." 5. Bribery of John H. Campbell by Dr. E. J. Ogden, an agent of respondent, " by promise of employment for himself and son, for his vote and influ- ence." 6. Bribery of Nathan Roberts by the respondent, or by William Barber, his agent, " by promise of a present, or something nice," to Christina Robins, his wife, after elec- tion. 7. Bribery of Allan McDougall by the respondent, 738 DOMINION ELECTIONS. [A.D. " by promise of commission as Justice of the Peace ; also of money and check for money, and by threat to prevent his procurement of any office." And bribery by William Barber, the agent of the respondent, "by promise of commission as Justice of the Peace ; also of money and check for money. " I think the petitioners have failed to establish any of these charges. The evidence in support of the Allison case is that of Allison himself, and is to the effect that he met Ramsay at a sawing bee ; that Ramsay talked about the. elections in general, and about other parties to whom he was to give a day's sawing for the election ; on which Allison said he wished Ramsay would give him a day's sawing, and he would vote for the respondent ; and Ramsay said it, was a bargain, and he would do so ; and that then Allison, after thinking of the matter for two or three minutes, said he would not take it. Allison is a farmer, owning one hundred and fifty acres of land. Ramsay was called for the respondent, and so was one Joshua Norrish, who had been at the bee. Their account is not in conflict with that given by Allison, as far as his state- ment goes ; and their account of what was said is, I am satisfied, the true one. The facts were, that on the 19th of January, 1875, the day after the election for the Local House, at which Mr. Barber had been returned, a party of eight neighbors were at a sawing bee at the residence of a Mr. Marks. The eight persons there belonged, some to the Reform party and some to the Conservative. They were joking, "or talking nonsense," as one witness says, about the Barber election, and Allison said, in what, I have no doubt, was mere good-natured banter, that Ramsay was sawing a day for Marks, and would be sawing a day for Kitchen, another of the party, and a day for others, because they voted on his side ; and Ramsay, carrying on the joke, said, '' Yes, and I will go and saw a day for you." This was not said with reference to the then coming election 1874.J HALTON. 739 of the respondent ; and it is impossible to believe either that it was said as anything but a mere joke at the time, or that Allison could have for a moment supposed that Ramsay had any idea of influencing his vote, or that his vote could be influenced by the offer of a day's sawing. Fluelling lives in Oakville, and works at carpenter work wherever he gets a job. His evidence is, that about three weeks before the election he met the respondent on the street in Oakville, about one hundred and fifty yards from the respondent's office. That the respondent asked him if he was going to support him, and he told him ' he had not made up his mind what to do, when the respondent told him he would have a lot of work to do in the spring, and that if Fluelling would vote for him he would give him work to do ; and that Fluelling then said he. thought he would vote for him. He said also that he had not asked for the work, because he has had work to do. The respondent and his foreman, Mr. Conkrite, gave a very different account. Their evidence is, that after Fluellin The McDougall charge comes before me in rather un- usual circumstances. It appears that McDougall was keeping out of the way to avoid service of a subpoena, and all the efforts made had failed to reach him, or to discover where he was, until a late period of this trial. An application was made to me to postpone the trial after the other evidence for the petitioners had been given, to afford time to prosecute the search, and I granted the application so far as to allow this charge to stand until the respondent's evidence on the other charges had been given. At the last moment the petitioners succeeded in producing the witness. The evidence of McDougall was to the effect that the respondent had called at his house in December, 1874, and asked for his vote, when he told him he had promised to vote for his opponent, Mr, Chisholm, and that on that occasion McDougall had • See Halton case, Provincial Elections, p. 283 ante. 1874.] HALTON. 745 mentioned a grievance which he had against Mr. Barher, because in a recent appointment of justices of the peace by the Ontario Government the school section in which McDougall lived had been overlooked, no one in that section having been included in the commission ; and that the respondent excused Mr. Barber, and took the blame on himself, saying that he and others had made up the list of persons to be recommended for appointment in Robinson's hotel, and that list had been given to Mr. Barber ; that on Saturday, 16th January, the respondent and Mr. Barber had called together at his house ; that Mr. Barber had asked for his vote, to which he replied, that Mr. Barber must have considerable brass in his face to ask a vote from him or anyone else in the school section, when he had passed over the section in not giving it a magistrate. That then the respondent took him into a room, and said that he wanted his vote and his boys', saying that he understood that Mr. McDougall had con- siderable influence in the county, and that he wanted his vote, and wanted to know if he would not make an as- signment to him and Mr. Barber of his rights, and the right of his family of the county I understood, and was about to note the words as " the right of his family in the county," but the witness corrected me by saying of the county, or off the county. I am not sure which word he intended. The witness continued, that he told the re- snondent he could not do what he asked ; that the respondent then again asked if he could not vote for him, when Mr. McDougall said, as he had before told him, that he had promised his vote to Mr. Chisholm, and would not break his word for fifty thousand dollars. That after this the respondent put his hand in his breast pocket, and appeared to be producing from his pocket a piece of paper, and said to McDougall, " I can fetch you now. I have one check left, and only one. I will give you that for the interest of you and your boys." To which Mr. McDougall replied, " Put up your damnable corruption." That the respondent then said that the 746 DOMINION ELECTIONS. [A.D. expression, " damnable corruption," was wicked ; to which the witness replied that he could prove by the Bible that anything that was corrupt was damnable, and that the respondent said, " You can." After these statements the witness seemed to think, and said more than once on being pressed, that there was nothing more of consequence that he could think of. ■ He said also, that in the room the respondent had said that it was not Mr. Barber's fault about the magistrate matter ; that the Reeve had never sent up McDougall's name as a grand juror, and that the list was made up from the grand jurymen ; and that he had replied tliat it was no use telling him that, as on his former visit he had said it was his fault, and that he had himself made up the list. To which the re- spondent said that he had made up the list, and that it was the Reeve's fault in not sending it up. I note par- ticularly that McDougall only mentioned at a late period in his evidence, and apparently as recollecting what had not been in his mind when he was giving his direct account of what took place in the room, the fact that the magis- trate matter had been talked of, because from the whole evidence I am satisfied that it was the prominent if not the only topic talked of in the room, and this circum- stance has a material eifect on the view to be taken of the honesty of the evidence. I ma^ now also mention that from McDougall's own evidence, as well as from that of the respondent and Mr. Barber, it is* perfectly clear that McDougall was in no amiable humor that day with his visitors ; that he was or professed to be in a great hurry, and unable to give time to talk with them, and was in fact treating them with very scant courtesy or civility ; aud that it is exceedingly improbable for these reasons, apart from others which I have to mention, that he should have spent the time, or talked in the manner stated by him. So far the witness had only approached the charges in question in what he said about the clieck. Being still pressed as to whether there was not something more, and 1874. J HALTON. 747 after again saying he did not recollect anything more, he seemed suddenly to recollect something that had been forgotten, and exclaimed, " Oh, yes ! there was something more in the room. He said he would telegraph to Toronto, and have me appointed a magistrate. I said if it was for the sake of voting, or to obtain a vote, I would not accept it ; that I would not accept it in that way. He said if I did not comply with that way he would report me to the Government as being a bad character. I said if he did I would go in defence of my character." The explanation given by the respondent is that he had called, as McDougall says, not in December, but within a week before the 10th January, and that then McDougall had excited his sympathy by the story of his grievances, going back to confederation, and telling how he had been treated by the Reform party. One complaint was that Mr. Barber had been chosen to run as local member and McDougall set aside, though he was qualified for the position. But the principal complaint seems to have been that in the recent commission of the peace five magistrates had been appointed in the next school section and none in his, while he was as competent as some of those .who had been appointed. The respond- ent denies entirely what McDougall says as to his having taken the blame on himself, or having said that he made the lists, or having said anything about Robinson's hotel ; and'Tie says that in fact he had nothing to do with mak- ing the lists, further than, as Reeve of Oakville, he sent to Mr. Barber a list of names there. McDougall does not live in Oakville. The reason of the second visit to McDougall is stated by the respondent as having been solely to explain to McDougall how his name had been omitted, as the respondent had learned the reason from Mr. Barber, to whom he had mentioned the earlier inter- view ; and the respondent states further, that McDougall was so exceedingly excited, and evinced such an antipathy to Mr. Barber, that he took him aside merely to endeavor to obtain an opportunity of being heard more coolly, and 49 748 DOMINION ELECTIONS. [a.D. 1874.] that all that took place in the room was the giving of the explanation ; and he entirely denies the matters alleged in support of the present charges. I cannot say that the evidence leaves on myr^nind the slightest impression of the truth of the charges made by McDougall. I should, if necessary, apply to the charges, as also to those respecting Robins and Peake, the caution which has been on other occasions urged as necessary in dealing with evidence of an unaccepted oflFer. But there does not exist, in my view, any necessity for resorting to that rule. I am satisfied from the whole evidence which I have heard that the contest was carried on by. the respondent with a scrupulous and honest endeavor to avoid any violation of the law against corrupt practices. I regard it as improbable to so high a degree as to be incredible, except on the clearest testimony, that the respondent should have attempted what McDougall swears to ; and I find no difficulty in the conclusion that the evidence of McDougall is untrustworthy, when in addition to the circumstances to which I have already adverted, I bear in mind that he was animated by feel- ings of bitter personal hostility to . Mr. Barber, whom he connected with the personal slights and wrongs, real or fancied, under which he smarted ; and that the stoi-y he now tells was firit told for the purpose of damaging Mr. Barbej, and was now only told under circumstances which induce the belief that it would not now have been told if it had not been told before. I have not, in this state- ment, alluded particularly to the cross-examination of McDougall, and I need say no more as to it, than that it fully bears out the view which I have expressed. I dismiss the petition with costs. The petitioners appealed from the above judgment to the Court of Appeal, but the appeal was dismissed with costs. . (10 Commons Journal, 1876, p. 32.) A.D. 1878.] NORTH YORK. 749 DOMINION ELECTIONS, 1878. NORTH YORK. Before Me. Vice-Chancellor Blake. Toronto, SSrd December, 1878. William Cromwell Oliver et al.. Petitioners, v. Frederick William Strange, Respondent. Practice — Deposit of security— ^Irregularity. The security in this case was offered, in the shape of a Dominion note for $1,000, to the Registrar of the Court of Chancery, -^ho stated to the petitioners' solicitors that he could not receive it, but directed them to make payment of it through the Accountant of the Court in the same manner as moneys were usually paid into court. The solicitors then paid the money into the bank to the credit of the. matter of the petition, according to the usual practice of the Court of Chancery. Held, That the deposit of the security, as required by the Act, was pro- perly given. The petition contained the usual charges of corrupt practices, and was filed in the Court of Chancery. The respondent filed preliminary objections to the petition, as follows : That the petitioners have not, as required by the Do- minion Controverted Elections Act, 1874 (37 Vic, c. 10, s. 8, subsecs. 4-7), on the presentation of the said petition, deposited with the Clerk of the Court, in gold coin or in Dominion notes, the sum of $1,000, or any sum, as security for the respondent's costs, and the other persons in the Act referred to. The petitioners moved to set aside the preliminary ob- jections, and filed an affidavit of the petitioners' solicitors, stating that, when presenting the petition, they had offered a Dominion note for $1,000 to the Registrar of the Court of Chancery, who stated he could not receive it, but directed the solicitors to make payment through the Accountant of the court, in the same manner as moneys were usually paid into court under the practice of the Court of Chancery. The Dominion note was then paid into the bank to the credit of this matter, in the same 50 750 DOMINION ELECTIONS. [A.D. manner as moneys of ordinary suits in the Court of Chancery. The certificate of payment was as follows : " The Canadian Bank of Commerce, Toronto, 16th day of November, 1878.— $1,000. Be North Riding County of York Election, 1878. This is to certify that William C. Oliver and Abram L. Taylor have this day paid into this bank, to the credit of this account in the Court of Chancery in Ontario, the sum of one thousand dollars." Mr. U Alton McCarthy, Q.C., for the respondent. Mr. G. B'Arcy Boulton for petitioner. Blake, V.C. — This is not an objection to the petition. The main object sought by the Act is to have $1,000 deposited to answer any order that may be made as to costs or otherwise. This has been done. The money came virtually to the hands of the clerk, and he directed its deposit in the court, and it found its way there. The only irregularity then is, that the money was deposited to this particular account, but not headed with the general statement, "The Dominion Controverted Elections' Ac- count of the Court of Chancery." Here the deposit was in the shape of a Dominion note. The Act says, "the Clerk of the Court shall give a receipt for such deposit, which shall be evidence of the sufficiency thereof." I overrule the objections, but I will not do so with costs. 1878.] SOUTH ONTARIO. 7')1 SOUTH ONTARIO. Before Mr. Justice Galt. Whitet, 14th to SOth January, 1879. Daniel McKay, Petitioner, v. Francis Wayland Glen, Respondent. Gifts and Charities — Briberi/ — Offers. The respondent gave certain gifts and charities to a religious community, a church, and certaialocal associations, none of which were political : the election was never mentioned. Held, that where charitable donations are given generally, and not with a view to influence any individual voter, they will not vitiate an election. There must be such large and indiscriminate gifts as to leave no doubt on any one's mind that the effect had been to constitute general bribery ; and there was no evidence of such gifts or expenditure in this case. Semble, that s. 92 of the Dominion Elections Act, 1874, points to cases where money, or valuable consideration, is given to a voter, and not to a community generally. Charges against the respondent, that he had promised an office to the son of a voter, and a contract to the voter himself, were contradicted by other evidence, and dismissed. One P., some years before the election, c'aimed that the respondent was indebted to him, but the respondent denied all liability, and the dispute caused a coolness between them. One H., four months before the election, was employed by P. to collect another account from the respondent, and did so. H. stated to P. that as the respondent was in a good humor, it would be a good opportunity to get the old account settled, and asked P. if he would support the respondent in case the old account was settled. P. replied that he might promise what he liked. H. then took the account to the respondent, who looked it over and gave his note for it. H. and the respondent never referred to the election, nor to the settlement as affecting the election. Held, that the respondent had not been guilty of bribery in this trans- action. A charge against an agent of the respondent, that he had promised to procure the ofllce of police magistrate for one W., was denied by the agent and the respondent ; and it further appearing that W. had acted on the committee, and voted, for the opposing candidate, the charge was dismissed. The petition contained the usual charges of corrupt practices. The election took place on the 10th and 17th September, 1878. Mr. D' Alton McCarthy, Q.O., and Mr. T. 0. Blackstock, for petitioner. Mr. Robinson, Q.C., and Mr. Edgar, for respondent. 752 DOMINION ELECTIONS. [A.D. The evidence affecting the charges of corrupt practices is set out in the judgment. Galt, J. — The petition contained charges of bribery and corrupt practices by the respondent and his agents ; it did not claim the seat. There were in all fifty-three cases mentioned in the particulars, to which several others were allowed to be added during the trial. The charges first proceeded with had reference to per- sonal acts of respondent, viz. : A gift of trees to the Roman Catholic cemetery of the village of Oshawa ; dona- tions to a religious body belonging to that communion called " The Sisters ;" gifts to rifle associations ; money spent at picnics ; and a subscription of $50 to discharge the debt on a church. The respondent was the only witness examined as to these charges, and stated that in January or February previous to the election, seeing the cemetery in a very bare condition, he had offered the Roman Catholic priest trees to plant if he wished them. The ofier was accepted and the respondent ordered them, and on their arrival paid for them. The cost was $130. He stated that it was purely a voluntary offer on his part. As regards charge No. 53, respondent admitted that he had in the winter of 1877 furnished provisions to "The Sisters" to the extent of $60 ; he stated also that he had been in the habit of giving them money when applied to, and had also paid the half of the taxes on their house, the other half having been remitted by the corporation. As regards charges 48 and 49, respondent admitted that he had subscribed $50 to a Rifle Association for a special prize, to which a year or two before he had given $30. No reference was made co these latter charges, either during the case or iii the summing up of the learned ■counsel. As regards charge No. 52, respondent admitted that he had subscribed $50 in payment of a debt due on this 1878.] SOUTH ONTAEIO. 753 church. Nothing was said in reference to it during the case or in the summing up. As respects money spent at the picnics, he admitted he had spent about $30 at one held by the Eoman Catholics on 1 st July ; and on the same day he attended another held by the Sons of England Association, at which he spent the sum of $175. At this last there was, what appears to be very common now in the country, contests for prizes dependent on votes cast for particular persons. On this occasion there was one between himself and Mr. Gibbs, for a pitcher (worth some $4>0 or $50) to be given to the wife of the successful party. The persons voting paid a small sum of money for each vote ; the respondent among others voted for himself, while others voted for Mr. Gibbs, among whom was a person named Dingle, hereafter mentioned, who cast no less than one thousand votes for him. The object of these contests was to raise money for the society, and I confess I can see no impro- priety in what was done by the respondent. It is to be observed that none of those gifts or expenditures were made to any political association ; they were, particularly as respects the Rifle Association, to bodies which, in all probability, were composed of men of both political parties. The respondent has also sworn that the election was never mentioned or alluded to in the slightest degree in reference to any of these gifts or charities, and no evidence was called to contradict him. By section 92 of 37 Vic, chap. 9, every person who, directly or indirectly, by himself, or by any other person on his behalf, gives, lends, or agrees to give or lend, or offers or promises any money or valuable consideration, or promises to procure, or to endeavor to procure, any money or valuable consideration to or for any voter, or to or for any person on behalf of any voter, or to or for any person in order to induce any voter to vote or refrain from voting, or corruptly does any act as aforesaid, on account of such voter having voted or refrained from voting at any election, shall be deemed guilty of bribery. 754 DOMINION ELECTIONS. [A.D. The above enactment seems to point to any money or valuable consideration given to any voter, not to the community generally. In the Hastings case (1 O'M. & H. 218), where the charge was of lavish expenditure in anticipation of an election, Mr. Justice Blackburn said : " There is no law yet which says that any lavish expenditure in a neigh- borhood, with a view of gaining influence in the neigh- borhood and influencing an election, is illegal at all. In order to constitute anything which would be a corrupt practice in respect of expenditure of that sort, it must be made with a view of influencing a particular vote. If such an expenditure is made at a place, with a tacit under- standing of this kind, ' I will incur bills, and spend my money with you, if you will vote for me,' that not being the side on which you intended to vote ; if it is intended to produce that eflect upon the vote, it amounts to bribery." In the Windsor case (2 O'M. & H. 90), which was a charge of colorable charity, Mr. Baron Bramwell says : " It is certain that the coming election must have been present to his mind when he gave away these things. But there is no harm in it if a man has a legitimate motive for doing a thing, although in addition to that he has a motive which, if it stood alone, would be an illegitimate one. He is not to refrain from doing that which he might legitimately have done, on account of the existence of this motive, which by itself would have been an illegitimate motive. If the respondent had not been an intending candidate for the borough, and yet had done as he has done in respect to these gifts, there would have been nothing illegal in what he did ; and the fact that he did intend to represent Windsor, and thought good would be done to him, and that he would gain popularity by this, does not make that corrupt which otherwise would not be corrupt at all." In the Boston case (2 O'M. & H. 160), which was also a charge of charitable gifts for a corrupt purpose, it ap- peared that the respondent, who had formerly represented 1878.] SOUTH ONTARIO. 755 the borough, had determined to distribute a large quantity of coals among the poor in the borough, and wrote a letter to a gentleman expressing that desire. The coal was dis- tributed, but instead of the coals being distributed as the respondent Parry had intended, to the poor of the district, cards were printed without his knowledge, and bearing the signature of one Dyer (who acted subsequently at the elec- tion as the respondent's agent for the election expenses), with these words on them, " Please deliver cwt. of coals to A. D , for Thomas Parry. B. B. Dyer ;" and on the back of the cards were the words, " With Mr. Parry's compliments." Mr. Justice] Grove, in giving judgment, says : " It has been over and over again held that an unfair and improper donation with the view, motive, and intention of securing a vote, is corrupt within the mean- ing of the Corrupt Practices Act, 1854. It might be a doubtful question (and it is onp which was discussed in the Windsor case) whether, assuming two motives to exist — the one being pure, and the other with the intention to corrupt — you could exclude the corrupt intention and rely wholly upon the pure intention. I think that must be rather a question of degree. A man may wish to be chari- table in a neighborhood, but at the same time he may have an eye to his own interests ; and there must be in fact some limiting line, incapable of being defined in words, where the two things come to a nearly equal bal- ance. We know, for instance, that persons looking for- ward to be candidates for Parliament are generally pretty liberal to the charities in the district, and such liberality, as far as I am aware, has never been held to vitiate the election ; I suppose upon the grounds that such persons do not select voters, as contradistinguished from non- voters, as the objects of their charity ; that the object itself is good, and that although the donors may in so' bestowing their charity look to their personal interests and personal ambition, still a man is not to be injured in an object of personal ambition, merely because he does good which perhaps without that stimulus he might not 756 DOMINION ELECTIONS. [A.D. have been induced to do." The learned Judge acquitted the respondent of personal corruption, but held that the act of the agent, in distributing the coals in the way he did, made it an agency for securing votes for him, and was therefore corrupt within the meaning of the statute. I refer particularly to this case, as it was relied on strongly by both the learned counsel in their very able addresses ; and it appears to me to sustain the argument that so long as charitable donations are given generally, and not with a view to influence any individual voter, they will not vitiate an election. There must be such large and indiscriminate gifts as to leave no doubt on any one's mind that the effect had been to corrupt the public mind, or, in other words, to constitute general bribery. In the Guildford case (1 O'M. & H. 15) Mr. Justice Willes said : " It is unnecessary to go into any inquiry here as to general bribery. We have no evidence whatever of the prevalence of general bribery at the elec- tion. But do not be mistaken, and suppose that because these inquiries turn upon individual cases, and upon whether these cases are traced to the member or his agents, that general corruption quite apart from acts of the .mem- bers or their agents would not have the effect of vitiating an election. It clearly would, because it would show that •there was no pure or free choice in the matter, that what had occurred was a sham, and not a reality. This, however, is 'out of the question here. There may also be bribery so large in amount as in itself to furnish evidence, not indeed of general bribery, but of bribery coming from a fund with which it is impossible, as a matter of common sense, not to conclude that the member or at least an agent of his was acquainted. In that case the proper result would be the vitiation of the election, because the bribery was of such an extent as must have come to the knowledge of the member or his agent." There was no such evidence in the present case. The case of the South Huron election (24 C. P. 488, ante p. 576) was referred to by Mr. McCarthy as showing that 1878.] SOUTH ONTARIO. 757 the gifts to the churches mentioned in that case were evidence of corrupt practices on the part of the respond- ent, but the circumstances were entirely different. It was there proved that large sums of money were illegally spent, and there could be no doubt corruption had very generally prevailed, so much so that it was admitted the election was void. Moreover, in giving judgment, the learned Chief Justice says : " We have no information as to where these churches are, or anything as to the proba- ble effect of the subscriptions thereto on the electors of the riding. We would naturally have looked for some- thing enabling us more fully to understand the true position of the matter. For example, it might not have been unimportant to have ascertained if the respondent, who states that he has represented the riding since 1867, was in the habit of giving money to these churches on previous occasions, or, as we find in some of the English cases, that as a representative he was in the habit of sub- scribing liberally to charitable purposes at Christmas time." The remarks of the learned Chief Justice are completely met in the present case. The charity was to a charitable institution in his own town ; the cemetery was attached to the same place ; the Kifle Association belonged to his own county, and he had previously contri- buted to one of them ; and, as respects his general conduct in reference to churches, etc., he says, in his examination by Mr. Eobinson, " I have not given away more this year than in other years. I have given, including my own church, one thousand a year for the past ten years. Since 1st January, 1876, 1 have paid to my own church at least $2,500." That statement was uncontradicted, and as it was of such a specific nature that it could have been, I have no doubt that it was true. I therefore find that the corrupt practices here charged have not been proved. Charge No. 37, that the respondent bribed one William Thomas Dingle by promises of office for his son. There was also a further charge— No 6 of the added charges— that the respondent promised him a contract if he would support him. 758 DOMINION ELECTIONS. [A.D. These two charges may be considered together ; and if the evidence given by Dingle himself be accepted as true, they might be considered as proven ; but he is contra- dicted in every particular. He said on his re-examination, referring to a conversation which he had with the respond- ent towards the end of June, " Mr. Glen said to me that I should have the job, and he would do everything he could for me, or my son, if I would support him." In his examination he says, in reply to a question by Mr. McCarthy as to whether he had had more than one inter- view or conversation with Mr. Glen respecting his son, " No ; not about my son ; not about this." In reply to the following question by Mr. Robinson, " Do you mean to say you ha,d never asked Mr. Glen to endeavor to get an office for your son ?" he said, " / never did." Mr. Garvin, his brother-in-law, says, referring to a conversation with Mr. Glen which had taken place on the train previous to this, " Mr. Dingle asked me the Saturday previous to interest myself with Mr. Glen to endeavor to get a situa- tion for his eldest son, Frank, which I promised to do." Mr. Garvin had also written to Dingle on this very sub- ject. This letter was produced, and as it was very much commented on, I will read it : Toronto, Ont., I9th June, 1878. Deab Thomas, — I had a long interview with Mr. Glen the day I left Oshawa. He seems willing to do what he can, but he wiU do nothing which would invalidate his election, which he considers certain. He states that he has always used his influence in your favor in the matter of contracts, irrespective of politics, and will continue to do so. He says farther that the Gibbs never forgive ; and if you have offended them in any way, they will never forgive it, but will always use it to your disadvantage. I think there is no doubt of this ; and I quite agree with him that they are ready to get rid of you if possible. As to Frank, Mr. Glen will get him an appointment either in a bank or in a Govern- ment situation, whichever you desire ; but it must be understood that he does it from friendly motives and not on account of political influence. He reminded me, however, that you could not expect a youth of Frank's age — no matter how capable — to receive an appointment involving a large responsibility. This is quite plain ; and he advised a bank appoint- ment on account of the special training it would confer, which would be of advantage in any calling he might engage in in after life. If you will write me what you would prefer, I will write him or will see him if you consider it advisable ; or it might be as well if you would talk oyer the matter with him personally, when you could see how your views agree in regard to it. I have nothing to advise. You know best 1878.] SOUTH ONTARIO. 769 what you desire for Frank, but I see the difficulty of age which suggests itself at the outset. Let me hear from you by return, at Hamilton. Yours truly, (Signed), Jno. Gakvin. This was in Mr. Dingle's possession at the meeting in June, and consequently, although it maybe and probably is true that he had not personally applied to Mr. Glen for a situation for his son, he had requested Mr. Garvin to do so, and knew that it had been done. Mr. Dingle states that Mr. Glen asked him if he had received a letter from Garvin, and he replied that he had. Mr. Glen denies that he ever asked him if he had received such a letter; in fact, in his original examination, before any other evidence had been given, he. swears that to the best of his recollection no such conversation ever did take place. It is not asserted by Dingle that any but one conversation did. Then, as respects the interview with Garvin, Mr. Glen in his original examination says that, meeting Garvin on the train, " I asked him to use influ- ence with Dingle and Pedlar (who are brothers-in-law of Garvin) to keep them quiet, for I did not expect them to vote for me." Garvin has himself given us a detailed account of what took place between himself and Mr. Glen, the result being that on his return to Hamilton he writes the letter already referred to. We must therefore, so far as Mr. Garvin is concerned, consider that what he did is contained in the letter, which in no way refers to the election at all. I therefore consider charge No. 37 is not proved. Then, as regards No. 6 of the added charges, it must be borne in mind that the conversation in which this promise is said to have taken place was in June, towards the latter end of it.* Mr. Glen denies that he ever agreed to give Dingle the contract at all. Gliddon, a witness, stated that in a conversation with Dingle at Oshawa, on the night of the 3rd of August, he said to Dingle, " Glen wants you to vote for him," to which Dingle replied, "No, he never asked me to vote for him ; he knows which way I go ; only he does not want me to do anything against 760 DOMINION ELECTIONS. [A.D. him." Another witness, James Gall, said, in reference to a conversation which he had with Dingle in August, that Dingle said, " If Glen had acted the gentleman with me, and done the work as he agreed to do, he could not have expected me but to vote against him ; but I would not have done any more than that ; he could not expect but that I would vote against him ; give my silent vote against him." He added, " Now he was going to do all he could to defeat Mr. Glen." Dingle, on his previous examination, on being questioned as to his conversations with the above witnesses, had stated as respects Gliddon, " That he had never told Gliddon that Glen knew his politics, and never asked him to support him." As respects Gall, he said, " I do not know that I told him I would support Glen if I got the contract. I say most positively I never told Mr. Gall to my knowledge." We find also that at a picnic which took place on the 1st July, to which I have already referred, on a contest for a pitcher as a proof of public popularity. Dingle cast one thousand votes for Mr. Gibbs, as against Mr. Glen, which appears to me to be entirely inconsistent with his having received the promise of a contract on condition of his supporting Mr. Glen at the coming election. The contract was in reality given to another person about the end of August or beginning of September, shortly previous to the elec- tion. It is therefore plain that, so far as Dingle was concerned, the respondent acted in' a manner directly contrary to what Dingle has sworn he promised to do — and did so at a time when, if he expected to secure his support by virtue of the otter of the contract, he took the most efiectual means to arouse his active opposition, which he did. I am of opinion that this charge is not proved. Charge No. 31, George H. Pedlar bribed by Mr. Glen by settlement of a claim for money. It appears that some years before the election Mr. Pedlar had had a transaction with Mr. Glen respecting some wringers, and Mr. Pedlar contended that Mr. Glen was indebted to him 1878.] SOUTH ONTARIO. 761 for a deficiency of fifty-three wringers. Mr. Glen at that time denied all liability. This occasioned a coolness between them, and they had not spoken to each other for some time until the beginning of 1878. A person by the name of Hawthorne, who was employed both by the respondent and by Pedlar to collect accounts, as their agent respectively, was anxious to bring about a reconcili- ation between them, and this he effected in March last. In May, 1878, Hawthorne was employed by Pedlar to obtain payment of an account which he had against the respondent for copper, and did so, and obtained a note for the amount. On handing the note to Mr. Pedlar he said he thought that Mr. Glen was in good humor, and that it would be a good opportunity to get the other account settled. He stated he knew what the other account was ; it was for the wringers. He asked Mr. Pedlar whether in case the account were settled he would support Mr. Glen at the election. Pedlar said : " You can promise what you like," and, according to his own evidence, reserved to himself the right to act as he might think fit. Mr. Hawthorne took the account to the re- spondent, who looked over it and gave his note for it. Hawthorne states positively that at the time he presented the account to Mr. Glen, and Mr. Glen gave the note, nothing whatever was said about the election. The respondent, in reference to this charge, says that nothing was ever said to him about the settlement of the account in relation to the election, and that the settlement was never hinted to him as referring to his election. That statement is corroborated by the evidence of Hawthorne. I therefore find that the charge is not proved. I may add that there was no evidence that Hawthorne was an agent of the respondent as respects the election. On the morning of the last day of the trial Mr. Mc- Carthy applied to add another charge of corrupt practices by an agent, by promise of office to one Wallace, to induce him to vote for, or refrain from voting against, the re- spondent. This application was supported by an affidavit 762 DOMrNION ELECTIONS. [A.D. of the gentleman who had been engaged in preparing the evidence in support of the petition, that the evidence had come to his knowledge only that morning. The charge was allowed to be added. In the Cheltenham case (1 O'M. & H. 64), Martin, B., in reference to bribing by office, says : " Where the evidence as to bribery consists merely of offers or proposals to bribe, the evidence required should be stronger than that with respect to bribery itself ; or where the alleged brib- ing is an offer of employment it ought to be made out beyond all doubt, because when two people are talking of a thing which is not carried out, it may be that they honestly give their evidence, but one person understands what is said by another differently from what he intends it." In the Coventry case (ibid. 107) Mr. Justice Willes said, with regard to mere offers to bribe : " Although these cases have been classed below those of bribery by both the learned counsel, it cannot be supposed that any offer to bribe is not as bad as the actual payment of money. It is a legal offence, although these cases have been spoken of as being an inferior class, by reason of the difficulty of proof, from the possibility of people being mistaken in their accounts of conversations in which offers were made, whereas there can be no mistake as to the actual payment of money." Again, in the Mallow case (2 O'M. & H. 72), Mr. Justice Morris said : " I have desired to apply two rules to work out my judgment by. They are shortly these : First, that I should be sure, very sure, before I come to a decision adverse to any party where his character or credit is involved; second, that offers or conversations unaccompanied by any acts should be much more strongly proved in evidence than where some clear definite act has followed the alleged offer or conver- sation." The above observations apply with much fotce to the present case. It appeared the witness Wallace and the alleged agent, Higgins, were old friends ; that on 17th June, Wallace had made application to be appointed 1878.] SOUTH ONTARIO. 763 police magistrate of the town of Whitby, no such office being then in existence ; and the purport of his evidence is that Higgins promised him Mr. Glen's support, and asked him to refrain from voting for Mr. Gibbs himself and get others to refrain from voting for 'him. This is positively denied by Higgins, who said he was willing to support Wallace's application as an old friend ; that he did speak to Mr. Glen, but that he never asked Wallace to abstain from voting. Mr. Glen says that Higgins did speak to him in favor of Wallace ; but he thought it was a joke, and that he told Higgins he thought Wallace a very improper person for the office. Nothing was ever done ; no application was ever made by the Council for the appointment of a police magistrate ; and nothing- more was said about it. This was some considerable time before the election, and the witness not only voted, for Mr. Gibbs but acted as one of his committee. I find this charge is not proved. T find that no corrupt practices have been proved to have been committed by or with the knowledge or consent of the said Francis Wayland Glen. Petition dismissed with costs. The Supreme Court of Canada, on the appeal of the petitioner, affirmed the judgment of Mr. Justice Gait. (3 Sup. Ct. R 641.) (14 Commons Journal, 1879, p. 14.) 7(54 DOMINION ELECTIONS. [A.U. EAST HASTINGS. Before Me. Justice Armour. Belleville, B7th January, 1&79. William Robert Aylesworth, Petitioner, v. John White, Respondent. Ballots — Marks by Deputy Returning Officers — Void election. Certain deputy returning officers, before giving out ballot papers to the voters at the election in question, placed numbers on the ballots cor- responding with the numbers attached to the names of such voters on the voters' lists. Held, 1. That the deputy returning officers had acted contrary to law in numbering the ballots, and that the ballots so numbered should be rejected as tending to the identification of the voters. 2. That such conduct of the deputy returning officers having had the effect of changing the result of the election, a new election was ordered. The petition contained the usual charges of corrupt practices, and claimed the seat for the petitioner on a scrutiny of the ballots. Mr. Bethune, Q.C., and Mr. Holden, for petitioner. Mr. G. D. Dickson, and Mr. Fralick, for respondent. It appeared that the petitioner and respondent were candidates at the election held on the 10th and 17th September, 1878, the vote being: For petitioner, 1,205; for respondent, 1,188. On a recount before the Junior Judge of the County of Hastings, it appeared that the ballots for five polling divisions, Nos. 1 and 5 Hunger- ford, Nos. 3 and 5 Thurlow, and No. 2 Tyendinaga, had numbers on the back. The Junior Judge rejected the ballots in two of the divisions, No. 5 Thurlow and No. 2 Tyendinaga, and allowed the ballots in the three other divisions, thereby giving the seat to the respondent by a majority of twenty votes. The evidence as to the placing of numbers on the backs of the ballots was as follows : Benjamin Henry, deputy returning officer, No. 1, Hungerford : I put the same number on the ballots and counterfoil ; I held the counterfoil in my hand until the 1878.] EAST HASTINGS. 765 voter came back with his ballot, and then I saw that the same number and my initials were on the ballot that the voter brought back to me, and then I tore up the counter- foil and put the ballot in the box. The number was taken at random without reference to the voters' list, and was a private mark of my own. I did not in any case put the same number on the ballot as was the num- ber of that particular voter on the voters' list. I could not identify a voter by the numbers on the ballots, nor could any one else. In this division it M-as found that 35 of White's and 2 of Aylesworth's ballots corresponded with the numbers on the voters' list. Michael Lesarge, deputy returning officer, No. 5, Hun- gerford : I commenced to number the ballots from No. 1 of my own accord, when I was directed by the scrutineer of Mr. White, a namesake of his, to number them from the voters' list ; then I commenced doing so. I think I had numbered eight or ten when I was told by Mr. White that I had to number the ballots according to the voters' list. I am not certain whether the numbers I put on the ballots were the numbers from the voters' list kept by me, or from the voters' list kept by the clerk. I followed the numbering on one of the books, whichever it was ; some ballots are not numbered ; eighteen is the lowest number which is on the ballots. I put the numbers on the counterfoils at first; then I stopped and put the numbers on the ballots. In this division it was found that in the voters' list kept by the deputy returning officer, the names of the voters were numbered up to 92 ; that on the ballots 18 was the lowest, and 92 the highest number ; and that 10 of Aylesworth's and 2 of White's ballots were not num- bered. Edward Thresher, deputy returning officer, No. 3, Thurlow : I do not know -.vho put the figures on the backs of the ballots now shown me. They might have been put on when the ballots were counted. There were 51 766 DOMINION ELECTIONS. [A.D. no numbers on the ballots when they were put into the box, and there were no numbers on the ballots when they were taken out and counted. Mr. Taylor and Mr. Brentnall were scrutineers. Eleazer Brentnall : I assisted to count the ballots as Mr. Thresher took them out of the box. He said who they were for, and I put on the numbers. I numbered them from one forward, just as they came out of the box, to see if they tallied rii^ht. These numbers were not on them when they were taken out of the ballot box. Albert Loucks. deputy returning officer, No. 5, Thurlow: The numbers on the ballots are the same as those which appear on the voters' list. Edward Hollingsworth, deputy returning officer. No. 2, Tyendinaga : The numbers on the ballots are the same as those on the voters' list. The number which was opposite a voter's name on the list was the number which I always put on the ballot, except in one case where I made a mistake, and put on 8 instead of 2. At the opening of the case, counsel for the petitioner submitted that the recount by the County Judge was the only recount that could be had, and that his recount was final, and not open to revision by any other Court. Mr. Justice Armour held that the recount by the County Judge was not final, and that this Court had power to recount upon a petition like the present. Counsel for the petitioner then submitted that all the ballots ought to be allowed, and that the proper way of determining the question as to their validity was upon the ballots themselves, and that parol evidence could not be received as to the nature of a mark on the ballots, or to show with what intent the deputy returning officer put marks upon the ballots. Mr. Justice Armour held that such evidence could be admitted. At the close of the evidence the ballots were examined) and it appealed that the following had numbers upon 1878.] • EAST HASTINGS. 767 them, as explained by the evidence given above : No. 1, Hungerford, Aylesworth, 2, White, 35 ; No. 5, Hungerford, Aylesworth, 56, White, 24 ; No. 3, Thurlow, Aylesworth, 55, White, 50 ; No. 5, Thurlow, Aylesworth, 88, White, 49 ; No. 2, Tyendinaga ; Aylesworth, 77, White, 79. Mr. Bethwne, for the petitioner, thereupon admitted that if the ballots cast at No. 5, Thurlow, and No. 2, Tyendinaga, were rightly rejected, then, unless all the ballots cast at No. 1, Hungerford, were rejected, the peti- tioner could not obtain a majority ; that if all the ballots cast at No. 1, Hungerford, were not rejected, the peti- tioner would be in a minority, and he submitted that in that event it was clear that there must be a new election ; that the act which caused the ballots cast at No. 5, Thur- low, and No. 2, Tyendinaga, to be rejected, was the act of the deputy returning officer ; and that the constituency must not be disfranchised by the act of that officer. [Aemour, J. — If what was done at No. 5, Thurlow, and No. 2, Tyendinaga, affected the result of the election by causing the respondent to be returned when otherwise the petitioner would have been returned, there must be a new election]. ^ Mr. Dickson, for the respondent, admitted that such a result seemed consistent with justice and common sense. He cited Woodward v. Sarsons (L. R. 10 C. P. 753). Armour, J. — I think the ballots cast at No. 5, Thurlow, and No. 2, Tyendinaga, were rightly rejected. The statute, 37 Vic, c. 9, s. 55 (Can.), as amended by the statute, 41 Vic.,c. 6, s. 10 (Can.), provides that in counting the votes the deputy returning officer "shall reject all "ballot papers which have not been supplied by the " deputy returning officer, all those by which votes have " been given for more candidates than are to be elected, " and all those upon which there is any writing or mark " by which the voter could be identified." The provisions are imperative. The ballots cast at these two polling sub- division had marks upon them by which the voter could 768 DOMINION ELECTIONS. [A.D. be identified. By comparing the numbers upon the ballots with the numbers on the voters' lists,' it could be ascer- tained which way each voter had voted. Woodward v. Sarsons is precisely in point, and must govern this case. It is there said that the ballot paper must not be marked so as to show that the voter intended to vote for more candidates than he was entitled to vote for, nor so as to leave it uncertain whether he intended to vote at all, or for which candidate he intended to vote, nor so as to make it possible by seeing the paper itself, or by reference to other available facts, to identify the way in which he has voted. I think I cannot reject all the ballots cast at No. 1, Hungerf ord, and perhaps not any of them. All that I have any doubt about are those having upon them num- bers corresponding with numbers set opposite to the names of voters on the voters' list ; but the rejection of these would not put the petitioner in a majority, and it becomes therefore unnecessarj"^ to consider whether they ought to be rejected. The rest of the ballots cast at this polling subdivision were proved not to have had any writing or marks upon them by which the voter could be identified. They were numbered, and improperly numbered, by the deputy returning officer ; but his evidence, which is un- contradicted, shows that the voters could not be identified by the numbers or by reference to other available facts. There must therefore be a new election, and without costs. The petitioner, Mr. Aylesworth, would have had a majority of the votes of the electors, had it not been for the irregularities of the deputy returning officers, by which, and the recount before the County Judge, he has been put in a minority. The eifect of these irregularities is not to seat the minority candidate, but to avoid the election. The minority candidate was returned by reason of the ■deputy returning officers' irregular mode of conducting the poll, by which the ballots of a certain number of voters were as effectually destroyed as if they had been put in the stove. (13 Commons Journal, 1879, p. 4.) 1878.] EAST ELGIN. 769 EAST ELGIN. Befoee Mr. Vice-Chancellor Blake. St. Thomas, 27t?i~S8th January, and 7th February, 1879. Archibald Blue, Petitioner, v. Thomas Arkell, Respondent. Excessive treating by an agent—"- Common custom of the country" — Corrupt practice — Costa. One D., who had been a caudidate for various offices for tWeuty years prior to the election in question, and had freely employed treating as an element in his canvassing, became an agent of the respondent, and treated extensively, as was his common practice, during the election. The respondent was aware of D. 's practices, and once, in the early part of the canvass, cautioned D. as to his treating, but never repudi- ated him as his agent. Held, on the evidence, that as D. did no more in the way of treating during the election than he had done on former occasions, and had em- ployed treating as he ordinarily did as his argument, and had not used it as a means of corruptly influencmg the electors, he was not guilty of a corrupt practice. Semble, the treating proved in this case, if practised by one not thereto- fore given to such practice, would have been sufficient to have avoided the election. Observations on the law as it now stands, as holding out inducements to candidates to employ men who are habitual drinkers to canvass by systematic treating, and thus cause electioneering to depend upon popularity aroused by treating, rather than the merits of the candi- dates, or the measures they advocate. The petition was dismissed without costs, following the Carrichfergus case (21 L. T. N. S. 356; 1 CM. & H. 264). The petition contained the usual charges of corrupt practices. Prior to the trial, preliminary objections to certain allegations of the petition were disposed of by Mr. Vice-Chancellor Proudfoot (4 App. R. 412). Mr. Colin Macdougall and Mr. (Joyne, for petitioner. Mr. D' Alton McCarthy, Q.C., and Mr. Ermatinger, for respondent. Blake, V. C. — ^AU the charges have been disposed of in this case except those connected with Samuel Day, as to which the following is the material testimony : The respondent in his evidence says of him : " Mr. Day lives near town. He was nominated, and retired in my 770 DOMINION ELECTIONS. [A.D. favor. He asked the delegates there to support me. Mr. Day went with me. Mr. Day went with me through the Air Line and Canada Southern shops. We were canvass- ing. I suppose he was doing what he could to promote my election. He attended a meeting at Dexter and Copenhagen ; he attended the meeting at Aylmer. After the nomination he went to assist me at the Copenhagen meeting. No doubt his assistance was valuable. I knew he was actively engaged for me. I told Mr. Day in the early part of the canvass he must be careful not to treat. Mr. Day is in independent circumstances. He said he had no money on nomination day, and I loaned him ten dollars. He had come away without funds. He has borrowed money from me a hundred times, and I from him. From beginning to end I never directly or indirectly treated, or used any undue influence, through the six weeks the election lasted." Samuel Day : " I treat frequently ; I have done so ever since T became a man. People asked me to have a glass of ale and I returned it. I am very fond of company. I always ask other people when about me to drink ; this is my habit. I keep no liquor in my house. I never drank alone in my life. I never offered a man anything with the intention of influencing his vote. I treated Wooley. I don't know the occasion to which he referred. Maybe I asked him into Penwarden's. I never held out an inducement. He told me he was not going to vote. I said, ' That is right.' I never said anything about in- fluencing his vote. Mr. Arkell cautioned me about the treating. I said it was none of his business, and that T would do as I had always done. I knew the law was strict, and that I dare not treat with the intention of influencing. I might have treated Mr. Lightfoot and Mr. Mordinger. I do not think you could influence either of these men. Sinclair is much about the taverns ; he drinks a good deal and does not treat. He takes an active part in politics. He introduced the subject. I had not the election on my mind when I took the electors in to treat. 1878.] EAST ELGIN. 771 I should have liked to have seen Mr. Arkell elected. I mentioned it was necessary to have a change in the govern- ment. I do more work outside than on the platform." [The evidence o£ the other witnesses was confirmatory of Day's usual practice of indiscriminate treating.] I have perused all the cases to vv^hich 1 have been referred, and any others that I have been able to find on the subject of treating, and from them quote the follow- ing passages in the English cases bearing on the con- struction of the section in question, as to treating. Mr. Justice Willes in the Tamworth case (1 O'M. & H. 82-3) says : " Treating, to be corrupt, must be treating under circumstances and in a manner that the person who treated used meat or drink with a corrupt mind, that is, with a view to induce people, by the pampering of their appetites, to vote or to abstain from voting, and in so doing to act otherwise than they would have done with- out the inducement of meat or drink." Mr. Justice Blackburn, in the Wallingford case (1 O'M. & H. 58), says : " I think . that what the Legislature means by the word 'corruptly,' for the purpose of influencing a vote, is this : that whenever a candidate is, either by himself or by his agent, in any way accessory to providing meat, drink, or entertainment for the pur- pose of being elected, with an intention to produce an effect upon the election, that amounts to corrupt treating. Whenever also the intention is by such means to gain popularity and thereby to- effect the election, or if it be that persons are afraid that if they do not provide entertainment and drink to secure the strong interest of the publicans, and of the persons who like drink whenever they can .get it for nothing, they will become unpopular, and they therefore provide it in order to affect the election — when there is an intention in the mind, either of the candidate or his agent; to produce that effect, then I think that is corrupt treating." Again, in the Coventry case (1 O'M. & H. 106) Mr. Jus- tice Willes says : " When eating and drinking take the 772 DOMINION ELECTIONS. [A.D. form of enticing people for the purpose of inducing them to change their minds, and to vote for the party to which they do not belong, then it becomes corrupt, and is for- bidden by the statute. Until that arrives, the mere fact of eating and drinking, even with the connection which the supper had with politics, is not sufficient to make out corrupt treating." Again, in the Bodmin case (1 O'M. & H. 125): "The Judge must satisfy his mind whether that which was done was really done in so unusual and so suspicious a way that he ought to impute to the person who has done it a criminal intention in doing it, or whether the circumstances are such that it may fairly be imputed to the man's generosity, or his profusion, or his desire to express his good-will to those who honestly help his cause, without resorting to the illegal means of attracting voters by means of an appeal to their appetites." Mr. Baron Martin says {Bradford case, 1 O'M. & H. 37) r "What is the exact meaning of the word 'corruptly?' I am satisfied that it means a thing done with an evil mind and intention, and unless there be an evil mind or an evil intention accompanying the act, it is not corruptly done. ' Corruptly' means an act done by a man knowing that he is doing what is wrong, and doing it with an evil object." In the Lichfield case (1 O'M. & H. 2.5), Mr. Jus- tice Willes says : " It may be doubted whether treating in the sense of ingratiation by mere hospitality, even to the extent of profusion, was struck at by the common law. It is, however, certain that it is now forbidden under penalties by the I7th and 18th Vic, c. 102, whenever it is resorted to for the purpose of pampering people's appetites, and thereby indacing electors either to vote or to abstain from voting otherwise than they would have done if their palates had not been tickled by eating and drinking supplied by the candidates." I should have been glad if I could have found that it had been held in this country that the ordinary treating, as here practised, was a means of ingratiation, of enticing or inducing, in a way repugnant to the spirit of our 1878.] EAST ELGIN. 773 election laws, and which, if indulged in during the canvass by either the candidate or his agent, would be a reason for setting aside the election. It is true that the cases to which I shall refer were disposed of under an enact- ment differing from that on which this case depends, but the law for the guidance of electors and candidates has been there expounded, and principles have been distinctly laid down by which I am bound. In the OLengarry case (ante p. 8, s. c, Brough on Elec- tions, p. 22), Hagarty, C. J., uses the following language : "I feel bound to say that the evidence given by the respondent seemed given with great candor; and favorably impressed me as to its truth, and I feel wholly unable to draw from, it any honest belief that he provided this entertainment, consisting apparently of a glass of liquor all around, with any idea, that he was thereby seeking to influence the election or promote his election in any of the senses referred to in the cases. He was unaware of the state of the law on this subject, as he says. He is not to be excused on the ground of his ignorance ; but the fact (his ignorance) is not wholly unimportant as bearing on the common custom of the country — too common as it unfortunately is — of making all friendly meetings the occasion or the excuse of a drink or treat. The strong impression on my mind, and I think it would be the im- pression of any honest jury, is that the treats in question were just given in the common course of things as fol- lowing a common custom. In the appropriate language already cited the Judge must satisfy himself whether the thing which was done was really done in so unusual and suspicious a way that he ought to impute to the person a criminal intention in doing it." In the Kingston case (ante'p. 623, s. c. 11 Can. L. J. 23), Eichards, C. J., says : " The general practice which prevails here, amongst classes of persons many of whom are voters, of drinking in a friendly way when they meet, would require strong evidence of a very profuse expenditure of money in drinking, to induce a Judge to say that it 774 DOMINION ELECTIONS, [A.D. was corruptly done so as to make it bribery, or come within the meaning of ' treating ' as a corrupt practice at the common law." The learned Chief Justice adds : " I must confess to have been very much embarrassed in coming to a conclusion in this matter satisfactory to my- self. If it were not that I felt compelled to look upon this branch of the case in the nature of a penal proceeding, requiring that the petitioner should prove his allegations affirmatively by satisfactory evidence, and that he might have given further evidence to have repelled some of the suggestions in respondent's favor, if such suggestions were not reasonable ones, I should be bound to decide against the respondent ; but looking at the whole case, I do not think I ought to do so. If it is found from experience that the provisions contained in the present laws now in force in the Dominion and in Ontario do not eflFectually put an end to corrupt practices at elections, and that in order to do so it will be necessary to bring candidates within the highly penal provisions of declaring them, when they violate the law, incapable of being elected or holding office for several years, Eleiction Judges will probably find themselves compelled to take the same broad view of the evidence to sustain these highly penal charges that experience compelled committees of the House of Commons to take as to the evidence necessary to set aside an election." In the North Middlesex case {ante p. 376, s. c. 12 Can. L. J. 1.5), the Chancellor says : " Then there is the custom of the country — not to be commended, but still to be taken into account — -to take drink in the bar-rooms of taverns, and to do so in the shape of treating some or all of those assembled with them in the room — the ' crowd ' as it is often called. . . The respondent is a farmer, and has for the last sixteen years followed the business of a drover. He says that it is the practice of drovers to go to taverns as the best place for meeting with farmers and hearing of cattle ; that such has been his practice, and that he has always been in the habit of treating at 1878.] EAST ELGIN. 776 taverns in the course of his business, and this is con- iirmed by the evidence of other witnesses. He states that when he became a candidate he canvassed personally through the riding, and went to the taverns as good places to meet with the electors ; that on these occasions he sometimes treated ; sometimes friends who were with him treated ; and the treating was sometimes by others who were not friends, and the treating was general to all who might happen to be present. As to its extent, he says it was much less than was his habit in the course of his business — not more, he says, than one-fifth as much. He denies emphatically that he treated with any view of influencing voters ; that he made no distinction as to whom he treated ; that he had not taken legal advice ; that he meant to obey the law ; and that he thought that in what he did he committed no infraction of the law." The learned Chancellor continues : " I think that the respondent, in doing what he did, was treading upon dangerous ground ; but before holding that his seat is thereby avoided and himself disqualified, I must be satis- fied that what he did was done with a corrupt intent, and in judging of this the general habit of treating in the country, and the respondent's own practice, may properly be considered. It seems all to come to this : treating is not ^per se a corrupt act. The intent of the act must be judged by all the circumstances by which it is attended. If in this case the evidence led me to the conclusion that the respondent did what he did in order to make for himself a reputation for good fellowship and hospitality, and thereby to influence electors to vote for him, I should incline to think it a species of bribery which would avoid the election at common law ; but upon a careful consideration of the evidence it does not lead me to that conclusion. There was nothing wrong in the eye of the law in the respondent making his canvass by meeting the electors at taverns, and he does not seem to have abused the occasions of so meeting them by seek- ing to obtain their votes by pampering their appetites for drink, or by other undue means." 776 D.OMINION ELECTIONS. [A.D. By section 98 of the Dominion Elections Act, 1874, it is enacted that " The offences of bribery, treating, or undue influence, or any of such offences, as defined by this or any other Act of the Parliament of Canada, shall be corrupt practices within the meaning of the provisions of this Act;" and by section 94 of this statute the offence of treating is thus defined : " Every candidate who corruptly, by himself or by or with any person, or by any other ways or means on his behalf, at any time either before or during any election, directly or indirectly gives or provides, or causes to be given or provided, or is accessory to the giving or providing, or pays wholly or in part any expenses incurred for any meat, drink, refreshment, or provision to or for any person, in order to be elected, or for being elected, or for the purpose of corruptly influencing such person or any other person to give or refrain from giving his vote at such election, shall be deemed guilty of the offence of treating." So that to make this offence a corrupt practice there must be the corrupt giving for the purpose of corruptly influencing. Treating is not in itself illegal, and in considering whether it is a corrupt practice or not, it is under the authorities proper to look at the habits of the man accused of the offence, and endeavor to ascertain his intention in the treating complained of. It is not to be inferred that the act is corrupt simply because an election is going on. There is no doubt that with the agent Day treating was an ordinary act of everyday life. Whenever and wherever the occasion offered it was indulged in. He is described as a man who did not do much on the plat- form, but who was a powerful man outside. He appears to have thought that there was not much in himself to commend him to those he met, and at once he invariably turned to his potent friend the bar, and, by this more than questionable mode of procedure, sought to stimulate or form a friendship between himself and those he met. To this low conception of his own powers he added the view that those he met in his county were guided by a 1878.] EAST ELGIN. 777 standard no higher than his own, and he appears for over twenty years past to have successfully carried on this vile and degrading system of universal treating, which has been found to be so debauching in its effect through- out our Province. This man, who has been a candidate for various offices for the past twenty years, and has freely employed treating as an element in his canvass, becomes an agent of a candidate who no doubt uses him as a man whose influence, created by the use of liquor, will be sustained by the same means, the benefit of which will accrue to him in the election contest. This treating, if found in one not theretofore given to this vice, would have been sufficient to have avoided the election, but no doubt the respondent and his agent were informed of the decisions which sanctioned, under certain circumstances, a large amount of treating, and they acted on these cases, and I think are now entitled to shelter behind them. Al- though Arkell was apparently afraid of the consequences to himself that might arise from Day's treating, he never repudiated him as his agent. On one occasion the can- didate and another, a friend sent by him, remonstrated with Pay as to the probable consequences of his treating ; but I cannot say that Day did more in the way of treat- ing during than before the election, nor that he used this means of influence corruptly within the authorities. He employed this, as he ordinarily did, as his argument, and he did not use it more or diflferently one time from another. I think he went as far as he could go without bringing himself within the clauses of the Act which avoid elections for corrupt acts. I cannot say either .that there has been " any wilful offence " in the giving, or causing to be given, to any voter on the nomination day or day of polling, on account of such voter having voted or being about to vote, any meat, drink, or refreshment. What was done by Day at the nomination cannot be said to have been done on account of a voter having voted. The act of treating on that day in order to affect the election must, under the latter portion of section 94, 778 DOMINION ELECTIONS. [A.D. be coupled in some manner with " such voter having voted or being about to vote." In no case has it beea shown clearly to have been so. In the case of Peter Wooley, Day, to ray mind, brought himself very nearly within the penal clauses of the Act. The promise of assistance made to Wooley was too vague for me to act upon, but the question of his voting was then brought up, and liquor was introduced, and Day then obtained from him a promise in connection with his voting. If the matter was res integra, I should have found this elec- tion avoided by the acts of Day. I cannot, however, do so in view of the decisions in this country and in England. I am bound to follow these authorities, and must leave it to those who think themselves aggrieved by my finding to proceed by appeal and have the matter set aside. I feel that as the law stands at present a great induce- ment is held out to would-be candidates to look out in each constituency for men who are habitual drinkers, to win them to their side, and then to send them out to carry on the canvass by systematic treating, and thus to cause the electioneering of the country to depend to a great extent on the popularity aroused by these means rather than • on the actual merits of the candidates, or the measures they advocate. The door is thus very widely opened to the introduction of drink as a means of quietly, yet surely, affecting the election. This would be pre- vented if I could have held that the paying for liquor supplied to a voter by a canvasser when engaged in canvassing his vote was a means of ingratiation or entice- men.t, or of making himself popular, struck at by the Act, and by it made a corrupt practice. Too much stress was laid in argument on the $10 given to Day by Arkell. There was nothing unreasonable in this. It was more reasonable for Day to borrow this sum from his friend Arkell than that he should borrow from any person else when away from home, and much more reasonable to borrow $10 than to run in debt at the various taverns and other places where he might be 1878.] EAST ELGIN. 77& for the three or four days he was absent from St. Thomas canvassing for the respondent. I disposed of all the other charges on the trial of the case, and while not satisfied with the conduct of Day, I cannot, after a careful reperusal of the evidence, conclude that I would be justified in setting aside the election on account of what he had done. As to the costs of these proceedings, I think I may well follow the rule laid down in these words in the Carrick- fergus case (21 L. T, N. S. 356) : " But when drink is once given, those who give or sanction it cannot know or form an opinion of the consequences to which it may lead. I think it should be discouraged, and that not only candi- dates but their over-zealous friends and partisans should be apprised of the risks they run, and of the consequences to which they expose the candidate, by such a practice, and that it -might be attended with positive loss to him. Upon these grounds I think I should, in this case, do what I clearly have authority to do under the Act of Parlia- ment, namely, refuse to give the respondent the costs of these proceedings." (s. c. 1 O'M. & H. 264). I shall report accordingly to the Speaker. (13 Commons Journal, 1879, p. 18.) 780 DOMINION ELECTIONS. [A.D. PRESCOTT. Before Mr. Justice Armour. L'Obignal, 7th January and 19th February, 1879. Albert Hagak, Petitioner, v. Felix Routhier, Respondent. Voters entered on Voters' List in wrong capacity — Right to vote — Befasal to swear. The respondent was elected^ by four votes. At the election the names of twelve persons who were entered on the assessment roll as "free- holders" appeared on the voters' lists, owing to a printer's mistake, as "farmers' sons." Their votes were challenged at the poll, and they were required by the petitioner's scrutineers to take the farmers' sons' oath, which they refused. Subsequently they oflfered again to vote and to take the owners' oath, ami the deputy returning officer, who was also clerk of the municipality, knowing them, gave them ballot papers and allowed I hem to vote. Held, 1. That having been rightly entered on the assessment roll, the mistake as to their qualification on the voters' list did not disfranchise them. 2. That their refusal to take the farmers' sons' oath was not a refusal to take the oath required by law. A refusal to swear is where a voter refuses to take the oath appropriate to his proper description. 3. That having a right to vote, although they voted in a wrong capacity, their votes could not be struck off. Senible, That the provisions of the law as to how voters are to be entered on the voters' list in respect to their property, and as to the manner in which they are to vote, are directory. The petition contained the usual charges of corrupt practices, and asked to have the election set aside on the ground that persons had been allowed to vote without the qualifications prescribed by law. Mr. F. Osier for petitioner. Mr. Peter O'Brien and Mr. Cur ran for respondent. On the opening of the case the charges of corrupt prac- tices were abandoned, and the election was attacked on the grounds set out in the judgment. Armour, J. — I do not know that there is any necessity for my retaining the case. I have listened attentively to the arguments on both sides. The subject matter of 1878.] PEESGOTT. 781 dispute in this election case having been stated by one of the counsel on the previous occasion, I have since that time striven to make myself acquainted with the law upon the subject ; and I therefore think it is just as well that I should dispose of the case now. The facts are extremely simple. Some twelve persons were duly entered on the last revised assessment roll as assessed freeholders in respect of real property held by them, of sufficient value to entitle them to vote. From that assessment roll was taken, by the clerk of the township, a list of the voters who would be entitled according to it. In making out the copy for the purpose of having it printed, he set down correctly the names of these persons mentioned in the particulars, and described them therein as " owners," and set forth the property in respect of which they were assessed. The printer, it appears, made a mistake, entering opposite the name of each of these persons the word " do," which, referring to what went before, indicated that they should be desig- nated as " farmers' sons." That printed copy was sent to the officials to whom by law the clerk of the municipality was obliged to send them ; was the copy duly certified according to law; and was the copy deposited in the office of the clerk of the peace, from which copies were taken for the purposes of the voting 'of the various polling sub- divisions. At this election, at the polling subdivision number one, in the township of Alfred, the township clerk, the person who made out the voters' list for that township, was the deputy returning officer. These several persons came to that polling place. I do not think it is important whether they were each individually challenged, or were jointly challenged, and whether they were permitted to vote, or whether they were refused their votes, and the ground of challenge or refusal inserted. They came to vote, and they found themselves entered on the list as "farmers' sons." They were improperly entered. The only objection taken was that, as they were entered' on 52 782 DOMINION ELECTIONS. [A.D. the list as " farmers' sons," they were not entitled to vote in any other capacity ; and they must take the oath appropriate to a farmer's son, as if they were farmers' sons, as entered on the -voters' list. They refused to take that oath ; no other oath was required of them ; and sub- sequently, having become excited no doubt by the dread of losing their franchise, they came back and insisted that their votes should be taken. The deputy returning officer knew them ; knew that they were the persons named on the voters' list, and knew the mistake by reason of which they were sought to be disfranchised. They were permitted to vote. The question then comes to this : Had these persons a right to vote, entered as they were on the voters' list as farmers' sons ? My conclusion would be, that inasmuch as the majority was only four, and they were twelve, tbe election must have been affected by their voting. I do not think it is important to ascertain how they voted. Their voting must necessarily have affected the election ; and if they had no right to vote, I think I ought to set the election aside. I think they were entitled to vote, and ought to have been allowed to vote. They did vote, being given ballots by the deputy returning officer : and I am called upon to say whether a mistake, such as was made. on this list, ought to have disfranchised them : because, if they are to be disfranchised by reason of that, they had no right to vote at all, and the election ought to be set aside. I do not think the law is so absurd as to say that a man shall be disfranchised of his vote because of a mere mistake like this — because of the way in which he is &et down on the voters' list. Unless the law contained a statement, that a person being set down in his wrong capacity, although fully identified, should not be entitled to vote, I think that such person should not be dis- franchised. I cannot but think that the provisions of the law, with regard to the manner in which the persons shall be (entered on the voters' list, so far as the property is 1878.] PEESCOTT. 783 concerned, and the manner in which they vote, are to be looked upon as directory. It would be a hardship indeed if a person, after these lists had been made out — if he had been on a sufficient time to entitle him to vote, and had paid his taxes — should find himself disfranchised by a mere mistake on the voters' list, caused either by accident, clerical error, or an error of the printer — an error which it might be said tlaat the clerk of the township ought to have corrected. It would be a hard thing indeed to say that the law was so strict, that it disfranchised the person so situated, and compelled him to lose his vote. It is true that the statute requires these voters' lists to 'be published in a certain way, in order that the voters may. see that they are properly entered upon these lists ; but these men, some of them illiterate, all that they could reasonably ask to know would be whether they were on the voters' list. They find their names on the voters' list, and finding that, they would be satisfied. I think that the fact of the description " farmers' sons " being added to the names of these persons coiild not deprive them of their fran- chise. In a scrutiny, would their votes have been struck off ? I think they would not. It does not matter how they voted, if they were found on a scrutiny to have a right to vote. Although they may have voted in a wrong capacity, or although they may have been down on the assessment roll by a wrong description, their votes would not have been struck off. I do not think I could strike these votes off on a scrutiny, had it been capable of being performed, when they voted in that way. I do not think I ought to avoid the election because these persons, who had a right to vote, did vote. I think the deputy returning officer would have done wisely to have given them ballots, marking on the poll book that the voters were objected to. It is contended further on the part of the petitioner that after their having refused to swear, they were not, under the terms of the Act, entitled to come back and vote. 784 DOMINION ELECTIONS. [A.D. I do not take it that they have refused to take the oath which was the only oath that they could take. They refused to take the oath appropriate to the misdescription on the voters' list ; they refused to take that oath, and I do not consider that a refusal to swear. A refusal to swear is where a person comes, being properly named in respect of real property upon the roll, under a proper description, and refuses to take such oath as is properly appropriate to his description. These persons did not refuse to take the oath, the only oath they could take ; they refused to take the oath of farmers' sons, because they could not take it. I do not think that is a refusal to swear. I think that when they came back and voted they had a right to vote, and I do not think now that their votes can be struck oflF. I think, therefore, the petition ought to be dismissed, and dismissed with costs. (13 CoTTiTnons Journal, 1879, "p. 45.) 1878.] NORTH ONTARIO. 785 NORTH ONTARIO. Before Mr. Justice Armour. Whitby, 30th, 31st January, 1st and £6th February, 1879. William Henry Gibes, Petitioner, v. George Wheler, Respondent. Briery — Treating — Undue influence — Law of agency — Hiring orators and canvassers — Bribery of influence. The respondent canvassed a voter, who at the trial swore that after he had agreed to vote for him, the respondent promised to give the voter some work ; the respondent denied the promise. Held, although the voter appeared to be a truthful witness, and was not shaken on cross-examination, that the promise of employment was not made out beyond all reasonable doubt. The law of election agency is not capable of precise definition, but is a shifting elastic law, capable of being moulded from time to time to meet the inventions of those who in election matters seek to get rid of the consequences of their acts. A room was procured at which private meetings were held of the friends of the respoadent to promote his election — some of which meetings he attended. One W. attended these meetings, and was appointed to procure the vote of a certain voter who was absent from the riding. W. hired a vehicle to convey the voter to tlie poll. ^ Held, That W. was an agent of the respondent, and that his hiring such vehicle was a corrupt practice. The respondent owed one M. a debt; which had been due for some time. He was sued for it about the time of the election, and was informed that his opponents were using the non-payment of it against him in the election. The respondent stated he would not pay it until after the election, as it might affect his election. Held, That the promise to pay the debt was not made to procure votes, but to silence the hostile criticism, and was not therefore bribery. ■Certain voters met at a tavern on polling day, and one B. said he did not know how to mark his ballot. Dae of the voters, after showing B. how to mark his ballot, according to the candidate he desired to vote for, treated. Held, That the treating was not a violation of s. 94 of the Dominion Elections Act, 1874, nor a corrupt practice under s. 98 of the Act. •One M. canvassed a voter on polling day, aiid urged him to vote for the respondent, and, while canvassing, treated the voter four times ; the voter then went and voted. Held. That the treating was for the purpose of corruptly influencing the voter to vote or refrain from voting at the election. A scrutineer for the respondent had some whiskey with him on polling day, and treated the deputy returning officer, poll clerk, and another in the polling station. Held, not a corrupt practice. Certain supporters of the respondent met in a room over a tavern to promote the election of the respondent. Their meetings were presided 786 DOMINION ELECTIONS. [A.D. over by an agent of the respondent, and the respondent attended at ■ least one of such meetings. Held, That the persons who attended such meetings were agents of the respondent. Two agents of the respondent gave a voter M. some whiskey on poUing^ day, and took him in a boat to an island, where they stayed for some time. One of the agents then left, and the other sent M. to another part of the island for their coats. During M.'s absence the latter agent left the island with the boat, but M. got back in time to vote, being sent for by the opposite party. Held, That the two agents were guilty of undue influence. The respondent and one M. employed one H. , a lawyer and professional public speaker, to address meetings in the respondent's interest, and promised to pay H.'s travelling expenses, if it were legal to do so. Held (bv the Supreme Court, reversing Armour, J. ), that such a promise was not bribery (4 Sup. Ct. E. 430). Held, per Armour, J., That the hiring of orators and canvassers at an election is bribery. The petitioa conlained the usual charges of corrupt practices. Mr. B' Alton McCarthy, Q.C., and Mr. T. G. Blackstoch, for petitioner. Mr. J. K. Kerr, Q.C., and Mr. Spragge, for respondent. The evidence affecting the election is sufficiently set out in the judgment, except as to the Hurd case, included in charges four and five. Kurd's evidence was to the effect that he was to address public meetings in the interest of the respondent, for which he claimed to be entitled to $1,000. The respondent's evidence was that Hurd was to address such meetings if his (the respond- ent's) friends approved of him, and that he was to be paid his travelling expenses, if it was legal to do so. Armour, J. — At the close of the evidence all the charges in the particulars were abandoned, except those numbered respectively 1, 2, 4, 5, 6, 7, 10, 11, 13, 15, 18, and 20. These were more or less strenuously relied on by the petitioner's counsel, and at the close of the able arguments addressed to me by the counsel for both parties, I deemed it better, as some of the charges aflfected the respondent personally, that I should reserve my decision until I had had an opportunity of carefully perusing the shorthand 1878.] NORTH ONTAEIO. 787 notes of the evidence, and of examining and considering the authorities bearing upon the several charges relied on. Having now done so, I proceed to dispiose of the charges in the order in which they were presented to me in argu- ment. The first charge was bribery by the respondent of one Thomas Ellis by the offer of employment to him. The evidence given by Ellis, so far as material to be considered, was to the following effect : " He (the re- spondent) asked me if I would vote for him ; he asked . me ' How was my vote,' and I said, ' it was all right ;' he said, 'I heard you were such a hot-headed Tory that there would be no use in speaking to you about it ;' I said, ' I am not that hard ;' says he, ' Well, how is it ?' 1 said, ' I guess I will vote for the home man;' then he says, ' There are quite a few Conservatives around here who are going to support me ; I have done them some favors, and,' said he, ' I am going to get out some logs this winter, and I will give you a job of getting out the logs.' " Ellis swore that he placed no dependence on the offer, nor did he afterwards receive or look for a job. The respondent denied that he ever made any such offer to Ellis, and ailso denied that on the occasion of canvassing Ellis for his vote there was any conversation about his giving Ellis employment. I think that Ellis was a truthful witness, and his evidence was not in any way shaken by cross-examination, nor was it at all affected by the wit- nesses called to impeach it ; but I think it would be very dangerous to hold that a mere offer of so indefinite a character, made after the vote had been promised, and upon which the voter placed no dependence, and which might have been understood by him differently from the way in which it was intended, was, on the evidence before me, so assuredly positive as to compel me to find the respondent guilty of bribery. I think what was said by Mr. Baron Martin in the Cheltenham case (1 O'M. & H. 64) is peculiarly applicable : " Where the evidence as to bribery consists merely of offers or proposals to bribe, the 788 DOMINION ELECTIONS. [A.D. evidence required should be stronger than that with respect to bribery itself ; or where the alleged bribery is an offer of employment, it ought to be made out beyond all doubt, because when two people are talking of a thing which is not carried out, it may be that they honestly give their evidence, but one person understands what is said by another differently from what he intends it." I think that this charge was not made out beyond reason- able doubt, and I therefore determine that it was not proved. The second charge was the hiring of a vehicle by one John Coraley Widdifield, an agent of the respondent, to convey one Thomas Shean, a voter, to the poll. Shean was working at Bowmanville at the time of the election, and his wife and family were residing at TJxbridge village, where he had a vote, and Widdifield hired a vehicle from one Crawford, a livery stable keeper, and furnished it to Mrs. Shean, in order that she might go for her hus- band and bring him up to vote, which she accordingly did. It was attempted to be shown by the evidence of Widdifield that the vehicle in question was not " hired," and that the use of it was a free gift by Crawford ; but I find on the evidence that Widdifield hired it, and that it was the understanding of both Widdifield and Crawford at the time the vehicle was bespoken that it was to be paid for. It was also contended that the hiring of this vehicle was not within clause 96 of the Dominion Elec- tions Act, 1874, but I see no possible room for such a , contention. The real contention, however, was that Widdifield was not an agent of the respondent. There seemed to be in the evidence upon this charge, as well as upon many others in which the question of agency occurs, a singular want of candor on the part of some of the witnesses, and a manifest desire to conceal the truth. It seemed almost impossible to get any one to admit that there was a com- mittee-room anywhere, or that there was a committee anywhere, or that he was on the committee, or who was 1878.] NORTH ONTARIO. 789 on the committee. They seemed to think that the ques- tion of agency depended altogether upon whether there was a committee or not, or whether the person who was charged with having been an agent was one of such com- mittee. Fortunately for the purity of elections the law of agency in election matters is not a hard and fast law, capable of precise definition ; it is a shifting, elastic law, capable of being moulded from time to time to meet the shrewd and astute inventions of those who in such mat- ters seek to get rid of the consequences of their acts. In the Wakefield case (2 O'M. & H. 102), Mr. Justice Grove, after adverting to the ordinary law of principal and agent, and the construction to be put upon the au- thority of the agent according to that law, says : " But if that construction of agency were put upon acts done at elections, it would be almost impossible to prevent cor- ruption. Accordingly a wider scope has been given to the term agency in election matters, and a candidate is responsible generally, you may say, for the deeds of those who, to his knowledge, for the purpose of promoting his election, canvass and do such other acts as may tend to promote his election, provided that the candidate or his authorized agents have reasonable knowledge that these persons are so acting with that object. I think it well that I should say in this respect that here it is almost impossible for any Judge to lay down such exact defini- tions and limits as shall meet every particular case ; and it is extremely important that the public should know that, because were it otherwise — were I, for instance, on the present occasion to pretend to lay down an exact definition of what constituted agency at one election — possibly in some other case that particular definition might be evaded, although what came substantially to the same thing might have taken place. Happily there is sufficient elasticity in the law to prevent that being the case ; and here, again, those who think that they can evade the law by just creeping out of the words which learned Judges use, or even which tribunals use, upon a matter of this 790 DOMINION ELECTIONS. [A.D, sort, which is partly law and partly fact, will generally find that they are very much mistaken. It is therefore well that it should be understood that it rests with the Judge not misapplying or straining the law, but applying^ the principles 'of the law to changed states of facts, to form his opinion as to whether there has or has not been what constitutes agency in these election matters. It is well that the public should know that they cannot evade this difficulty by merely getting, as they suppose, out of the technical meaning of certain words and phrases." The conclusion of fact I draw from what has passed in this matter is that a room was procured in the village of Uxbridge, where both the respondent and Widdifield resided, with the knowledge and concurrence of the ' respondent, at which private meetings were held of the friends of the respondent, some of which he attended ; that there was no nominated committee; that these meet- ings were held to the knowledge of the respondent for the sole purpose of promoting and furthering his election ; that the persons who attended such meetings were only the well known supporters of the respondent, persons with whom he had made common cause for the purpose of securing his election, persons upon whom he relied, and by whose exertions he trusted to secure it. The fashion now adopted is to repudiate the name of committee-meet- ing for such a gathering as that described, and for each of the persons so meeting together to disclaim the name of a committee-man, but the persons who met together in this case did precisely what committee-men are appointed in such cases to do, and were just as much comtnittee-men as if they had called themselves so. Widdifield attended some of these meetings, and so attended for the like pur- pose and in the same capacity as the other persons who attended the meetings. At one of these meetings at which Widdifield attended the procuring of Shean's vote was a subject of discussion, and to Widdifield was afterwards assigned the duty of procuring it. Applying, then, the law as established by numerous authorities to the state of 1878.] NORTH ONTAKIO. 791 facts found by me upon the evidence, there can be no doubt whatever that Widdifield was an agent of the respondent, one for whose acts the respondent must be , held responsible. I determine, therefore, that the second charge was proved. The next charge was bribery in the respondent settling the claim of one Hugh Munro. Munro had a claim against the respondent for some $30, which was of long standing, and when the respondent was nominated he thought " it .was a good time to get him to pay his debts," and accordingly sued it. The claim was for timber used in the construction of a building and for the drawing of the timber — the respondent being the contractor, and one McKenzie his sub-contractor, for the construction of the building. The respondent had put oflf the payment of this claim from time to time, alleging that he wanted to see his sub-contractor, who, he said, was liable for a part of it, before settling it. After he was sued, and shortly before the election, he met one Brown, a son-in-law of Munro, who asked 'him why he did not settle Munro's claim, telling him that his enemies were making a handle of it, and that it was militating against him. The respond- ent explained to Brown why it had not been paid, and they then met Munro, when Brown said, " What about that debt; you are. both here now." Munro said, "It- is not paid yet." The respondent said, " I won't pay it till after the election, for it might affect the election." Other conversation followed not material to this inquiry.. I am of the opinion that what was said by the respond- ent was in effect a promise that he would pay the claim after the election, that it was so understood, and that he intended it to be so' understood by the persons to whom it was addressed ; but I do not think that this promise was made to induce either Brown or Munro to vote for him, but for the purpose of silencing the hostile criticism that was being made upon his conduct in not paying Munro's claim, and the making of such a promise for such a purpose is not, in my opinion, under the circum- 792 DOMINION ELECTIONS. [A.D. stances of this case, bribery. I therefore determine that the seventh charge has not been proved. The next charges were ten and eleven, the treating by James Cameron, by William Waddell, and Joseph Elliott on the polling day. Waddell and Elliott were voters at the polling subdivision which included and had its polling station in the village of Beaverton. James Cameron was a store-keeper and the postmaster at the same village. The facts were shortly these : On the morning of the polling day, and after the opening of the poll, Cameron met Waddell, who was his uncle, on the street, and asked him up to McKinnon's tavern to have a drink, where they found Joseph Elliott and one Neil Buchanan. Something was then said about voting, when Buchanan said he did not know how to mark his ballot. Cameron then took out of his pocket a blank ballot, and showed him how it ought to be marked, according as the party wished to vote for one candidate or the other. Cameron then said, " Come boys, let us have a drink, and then we will go up and burst their votes." The drink being duly disposed of, Cameron went to the poll, accom- panied by Elliott and Buchanan. It was contended that the treating in question was a wilful offence against sec. 94 of the Dominion Elections Act (1874), and was a cor- rupt practice under sec. 98 of that Act. I cannot adopt that view, but feel bound to hold that the treating in this case was neither corrupt nor was it on account of the persons treated being about to vote. I therefore determine that these charges were not proved. Charge thirteen was the treating by Archibald McKin- non of Thomas McCullough on the polling day. McKinnon was a blacksmith at Beaverton, and McCullough resided on Thorah Island, and was a voter at Beaverton. They were old friends, and whenever they met were in the habit of having a glass together. McCuUough's account of what took place between them on polling day was not controverted, and I transcribe it : "I met McKinnon in the morning when I came over; he said, 'You have got 1878.] NORTH ONTAKIO. 793 over ; did you come over to vote ? ' I said 'Yes ; ' he said, ' Who are you going to vote for?' I said, ' I do not know yet;' he said, 'Come over to McKinnon's 'and have a drink ;' we went over and had a drink ; then he asked me to vote for Wheler, that Wheler was the best man ; that was when we were having a drink ; I said I would not know either of the candidates if they were in the room at the time. We sat down and talked awhile, and I told him I always voted on the other ticket — the Conser- vative — and he said, ' Come up and have another drink.' We had another drink, and then sat down and talked awhile again ; he wanted, if I would not vote for Wheler, not to vote against him ; I told him I would not promise. We had another drink ; he still talked politics ; that was about all that was said, only that he did not want me to vote against his party ; we had four drinks altogether at this place. I went over and voted ; after that I saw McKinnon ; he said, ' You have done it ;' I said, ' Done what ?' ' Voted against me,' he said. He said, ' You voted for Mr. Gibbs ;' I said ' I did ;' said he, ' I do not want to darken your doors while you live, and I don't want you to come into mine.' " McKinnon denied that the drink was given for the purpose of influencing McCuUough. I was at first disposed to think that the drink might be looked upon as a concomitant of, rather than an ingredient in, the persuasion exerted by McKinnon upon McCullough but a careful consideration of the evidence has compelled me to the conclusion that the drink was given for the purpose of corruptly influencing McCullough to vote or refrain from voting at the election. I will dispose of McKinnon's agency when I come to the disposal of charge twenty. Charge fifteen was the treating by D. M. Card of one Thomas Fahey on polling day. Card was scrutineer for the respondent at No. 3 polling division of the township of Rama on the polling day. He took whiskey with him ipto the polling station and treated Thomas Fahey, who was the deputy returning officer there, and Edward 794 DOMINION ELECTIONS. [A.D. Fahey, who was the poll clerk, and another person named McDonald. Edward Fahey was a voter in Rama, at No- 2 polling division. I do not think this treating was corrupt, nor was it on account of the persons treated having voted or being about to vote. I therefore deter- mine that this charge was not proved. Charge eighteen is the hiring of a vehicle by Prosper A. Hurd to convey one George H. Neville, a voter, to the poll. Prosper A. Hurd was undoubtedly an agent of the respondent for the management of his election, and I find as a fact that he hired a vehicle from Charles McKenzie the day before polling day for the purpose of conveying George H. Neville to the poll ; that both Prosper A. Hurd and Charles McKenzie understood that the vehicle hired was to be paid for, and $3 was accordingly charged by McKenzie to the respondent for it. I find also that Charles McKenzie knew the purpose for which the vehicle was hired. I also find that Luther Hurd was sent by Prosper A. Hurd with the vehicle to convey Neville to the poll, which he accordingly did. McKenzie was recalled near the close of the trial, and swore that if he had known that this rig was going to be used for conveying voters he would not have charged for it, forgetting no doubt that he had previously sworn that he knew that the rig .engaged on the 16th (the rig in question) was to go after Neville to bring him to vote. I cannot find on such testi- mony as this that no charge was ever intended to be made for the vehicle in question. I determine that this charge is proved. Charge twenty was a charge of undue influence prac- tised upon William Murray by George Ross and John Cameron. As I find the facts, they were shortly these : Murray was a voter at Beaverton, as was also his brother, Angus Murray. Early on the morning of the polling day Ross and Cameron went to the house of Angus Murray, having previously provided themselves with the requisite amount of whiskey, supplied to them by Angus McKin- non. They went to see that Angus Murray was all right, 1878.] NORTH ONTARIO. 795 and having ascertained that he was all. right, and would vote for the respondent, they gave him a drink, and then proceeded to the house of William Murray, who lived near the lake. Finding that William Murray was all wrong, and was going to vote for the petitioner, they gave him a drink, and persuaded him to go with them to Thorah Island in Cameron's boat, Cameron telling him that he would be back time enough to vote^ They all went to the island in the boat, and landed first* at McCuUough's Point, where Ross looked at some saw logs. They then proceeded to Middle Point, and landed at the south side of it. There Cameron and Murray left their coats, and leaving Ross and the boat there went for a walk over the island, the object of the walk being, no doubt, the detention of Murray on the island till near to the time when they must necessarily start back in order to vote. Returning from the walk they came to the north side of the Middle Point, where they found the boat ; then •Cameron sent Murray across the point for their coats, and when he got Murray away he went off with the boat to Beaverton, leaving Murray there, and thinking no doubt that he had accomplished his purpose of preventing him from voting. Cameron says that when he started off with the boat he thought it was about four o'clock. Ross had previously gone across to Beaverton in the boat of one Warren, because, as he says, he was told that Cameron and Murray had got tired and gone back. Murray, how- ever, did get back to vote close upon five o'clock, as he says a boat had been sent from Beaverton (no doubt by the opposite party) to fetch him. Hearing the evidence given upon this charge, and seeing the bearing and demeanor of the witnesses, I could not resist the conclusion that Ross and Cameron had deliber- ately concocted the plan of getting Murray over to the island for the sole purpose of preventing him from voting. The 95th clause of the Dominion Elections Act, 1874, provides that " every person who directly or indirectly, by himself or by any other person in his behalf . . . 796 DOMINION ELECTIONS. [A.D. by abduction, duress, or any fraudulent device or contriv- ance, impedes, prevents, or otherwise interferes with the free exercise of the franchise of any voter, or thereby com- pels, induces, or prevails upon any voter either to give or refrain from giving his vote at any .election, shall be deemed to have been guilty of the offence of undue influence." I think that. Ross and Cameron did, by a fra'iidulent device and contrivance, impede, prevent, and interfere with the free exercise of the franchise of Murray, and were guilty of undue influence. It was argued that inasmuch as Murray was ultimately able to exercise his franchise, and did so, the offence struck at by the Act was not committed, but I do not yield to this contention; his being able at last to exercise his franchise made it no less an offence in Ross and Cameron, by a fraudulent device or contrivance, to impede or inter- fere with the free exercise of it. The question of the agency of Ross and Cameron and of Archibald McKinnon, remains to be considered. What I have said on the subject of agency in dealing with charge three applies with equal force to the matter in hand. What was done at Beaverton was almost precisely similar to what was done at Uxbridge village ; private meetings were held here as there ; they were held in a room in Angus McKinnon's hotel; the respondent attended at least one of these meetings ; they were presided over by one George Bruce, an admitted agent of the respondent for the management of his election at Beaverton ; they were held for the sole purpose of secur- ing the respondent's election ; the like persons in a like capacity and for a like purpose attended these meetings as the persons who attended the meetings at Uxbndge. All those who met together there were co-workers together for promoting the respondent's election, George Bruce being the chief. George Ross attended one of these meet- ings, John Cameron was at two of them, and Archibald 1878.] NORTH ONTARIO. 797 McKinnon was at one or two of them. McKinnon swore that he did not remember promising Bruce to see Mc- CuUough and try and get him to vote for Wheler, but he would not swear that that did not take place. I have little doubt that to Archibald McKinnon was assigned the duty of looking after McCullough on polling day. I have also little doubt that to Ross and Cameron was assigned the duty of looking after the two Murrays. Bruce swore that he understood on election day, not be- fore, that Ross and Cameron were taking part for Wheler, and they did so, as far as appears, with his sanction. I can come to no other conclusion on the evidence than that Archibald McKinnon, George Ross and John Cameron, were agents for the respondent. I determine, therefore, that charges thirteen and twenty were proved. The only remaining charges are four, five and six, which were argued together, and which I will dispose of as they were argued. These were charges of bribery of Prosper A. Hurd (4), by the respondent (5), Thomas Paxton and (6) Joseph McClelland respectively; and in dealing with them it will be necessary for me to refer with some detail to the law as affecting the particular kind of bribery — bribery of influence — charged to have been committed. The Dominion Elections Act, 1874, sec. 92, provides that the following persons shall be deemed guilty of bribery, and shall be punishable accordingly : " (3). Every person who, directly or indirectly, by him- self or by any other person on his behalf, makes any gift, loan, offer, promise, procurement, or agreement, as afore- said, to or for any person in order to induce such person to procure or endeavor to procure the return of any person to serve in the House of Commons, or the vote of any voter at any election." This latter subsection (under which these charges are said to come) is a condensation of the two former sub- sections ; and an application of the acts, therein referred to, to bribery or influence would, if amplified, form like them two clauses, and would read as follows : Every 53 798 DOMINION ELECTIONS. ' [A.0. person who, directly or indirectly, by himself or by any other person on his behalf, gives, lends, or agrees to give or lend, or agrees or prbmises any money or valuable con- sideration, or promises to procure, or to endeavor to procure, any money or valuable consideration to or for any person in order to induce such person to procure, or to endeavor to procure, the return of any person to serve in the House of Commons, or the vote of any voter at any election; and every person who directly or indirectly, by himself or by any other person on his behalf, gives or promises, or agrees to give or promise, or offers or promises, any office, place, or employment, or promises to procure, or to endeavor to procure, any office, place, or employment, to or for any person in order to induce such person to pro- cure, or to endeavor to procure, the return of any person to serve in the House of Commons, or the vote of any voter at any election. It will be thus seen that the bribery of influence is defined in the same way and by the very same words as the bribery of voters, and it follows that the law applic- able to the one is equally applicable to the other. Of the two modes — bribery of votes, and bribery of influence — the latter is the more effectual and the more pernicious. It is the more effectual, because the briber of the voter cannot, by reason of the ballot, know whether the voter has carried out the compact, but the briber of the influence sees and knows whether the influence bribed has been exerted. It is the more pernicious because its effects are more extensive ; the briber of the voter gets that vote alone, the briber of the influence gets, almost as a matter of course, the vote of the person whose influence is bribed, and also the votes of all those affected by his influence. The evidence in this case affords an illustration of this, if such were wanted. Luther Hurd swore that he supported the respondent through his father's influence, because he thought his father was going to be benefited by it. It also appears that the benefit to be derived by the father- in-law Hurd was placed before the son-in-law Neville as an inducement to support the respondent. 1878.] NORTH ONTARIO. 799 The amount promised, whether it be large or small, makes no difference in the offence ; it is as much bribery if one dollar was promised as it would be if a thousand were. Mr. Justice Willes, in the Coventry case (20 L. T. N. S- . 405), after quoting the same clauses in the Imperial Act as subsection 3, says : " Therefore anything, great or small, which is given to procure a vote, would be a bribe ; and if given to another to purchase his influence at the election, it unquestionably also would be a bribe, and would void" the election. It would have been bribery in the case of the person who gave, and in the case of the person who received, the benefit ; and if Mr. Eaton had agreed to give Mr. Hill £5, 1 might say a farthing in point of law ; if he agreed to give him anything, if only a pepper- corn, for the purpose of purchasing, any influence which Mr. Hill had with the electors of Coventry, and of advanc- ing Mr. Eaton's interest as a candidate at the election, it would have been bribery, and it would have avoided the election." Nor does it make any difference under what name the promised money is to be paid, whether for speeches to be made, or for influence to be exerted in any other way, and whether for loss of time and .inconvenience, or for travelling or other expenses, the law is equally violated in one case as in the others. If A says to B, " If you will come and vote for me I will pay your travelling expenses in doing so ;" or if A says to B, " If you will come and endeavor to secure my return, I will pay your expenses in doing so," there can . be no distinction in law between these proposals ; if the one is illegal so is the other. The former has been deter- mined to be bribery by the House of Lords in Cooper v. Blade (6 H. L. Gas. 746) ; .the reasoning and result of that case apply with equal force to the latter, and the latter must be bribery too. The payment of orators was likened in the argument to the payment of canvassers, and it was contended that 800 DOMINION ELECTIONS. [A.D. payment of canvassers was legal in Canada because it ' was legal in England ; but this by no means follows. In England counsel are retained, attorneys and solicitors are employed, agents, canvassers, messengers, and watchers are hired, committees are furnished with refreshments, and enough money is spent in this and similar ways at an election there to corrupt and demoralize any constituency here if spent in a like manner. I need only refer to the expenditure in the Westminster election of £9,000 sterling, which was held not illegal ; and to the Argyleshire election but the other day, reported to have cost £16,000 sterling. These expenditures, for the purposes I have above referred to, have been held in England to be authorized under the terms of the proviso appended to the enactment against bribery in the 0. P. P. Act, 185^ : " Provided always that the aforesaid enactment shall not extend or be con- strued to extend to any money paid or agreed to be paid for or on account of any legal expenses hona fide incurred at or concerning any election." And it has been there held that but for this proviso the payment, of canvassers would be illegal. The framers of our Act, no doubt with the view of preventing such enormous expenditure as had been held in England to be legal under the terms of the proviso in the Imperial Act, discarded that proviso, and adopted the following: "Provided always that the actual persona] expenses of any candidate, his expenses for actual professional services performed, and hona fide pay- ments for the fair cost of printing and advertising, shall be held to be expenses lawfully incurred, and the payment thereof shall not be a contravention of this Act ;" and in order that no illegal payments should creep in under the words " personal expenses," they were careful to define them by providing that " the words ' personal expenses,' as used in this Act, with respect to the expenditure of any candidate in relation to the election, shall include the reasonable travelling expenses of such candidate, and the 1878.] NORTH ONTARIO. 801 reasonable expenses of his living at hotels or elsewhere, for the purpose of and in relation to such election." It will thus be seen how much more limited the expen- diture must be under this proviso than under that in the Imperial Act. It may be that this proviso in our Act does not cover every expenditure that may legally be made, but if any expenditure made outside of that permitted by the pro- viso should happen to be covered by the express words of the clauses relating to bribery, such expenditure will inevitably amount to bribery. The hiring of orators and of canvassers is, in my opinion, outside of what is permitted by the proviso, and is with- in the very \ words of subsection 3, and is therefore bribery. I am told that such hiring has been permitted as legal in other Provinces. The decisions in other Provinces do not bind me, and as in my opinion it is illegal, I shall hold to that opinion until a Court whose authority I am "bound to submit to shall determine that the law may be violated in this way, and that bribery may assume this garb with impunity. Holding the view of the law which I have expressed, it is quite unnecessary for me to determine which was the true arrangement with Hurd — that deposed to by the respondent or that deposed to by Hurd. In my opinion they were both equally illegal. Mr. Paxton was in court, subpcBnaed as a witness by the petitioner, and might have been called by either party, but neither saw fit to call him. His evidence would undoubtedly have fuiyiished important materials upon which to come to a proper conclusion as to the true arrangement. Assum- ing then that the arrangement with Hurd, deposed to by the respondent, was the true arrangement, I find that such arrangement was so made by the respondent to induce Hurd to endeavor to secure the return of the respondent to serve in the House of Commons, and that the respond- ent was thereby guilty of bribery within subsection 3 of section 92 of the Dominion Elections Act of 1874. 802 DOMINION ELECTIONS. [A.D. I therefore determine that charge four was proved. I also determine that charge five was, and charge six was not, proved.* I further determine ' that the said election was void, and that the same must be set aside with costs, to be paid by the respondent to the petitioner, and shall certify the same to the Speaker of the House of Commons, and shall report to him as required by law. From Mr. Justice Armour's judgment on charges four and five, the respondent appealed to the Supreme Court of Canada, and the, appeaL was allowed with costs ; the Supreme Court holding, on the evidence, that the respond- ent only agreed to pay Hurd's travelling expenses if it was legal for him to do so, and that such a promise was not a violation of subsec. 3 of sec. 92 of the Dominion Elections Act, 1874 (4 Sup. Ct. E. 430). (15 Commons Journal, 1881, p. 2). * The learned Judge referred to the case of Wood v. Lycett, reported in the London Times of 29th January, 1879, the fa<:ts of which were as follows : Plaintiif and defend- ant were candidatee for Worcester at the then last election. Plaintiff agrreed to retire and to assist the defendant, for which he was to receive £70 for his assistance, and certain sums spent by him in payment of canvassers and other election exjienses. At the close of the evidencCj Baron Huddleston said that both parties were guilty of a misdemeanor in entering into such a transaction, which was clearly a corrupt payment. As to the other items, he held that not having been made through the election agents and the bills for the same not having been sent in within the month after the election, they were not recoverable. 1878.] CORNWALL (3). 803 CORNWALL (3). Before Mb. Justice Armour. CoBNWALL, 17th and 18th June, Sril October, 15th December, 1879. Donald Ban Maclennan, Petitioner, v. Darby Jergin, Respondent. Commission to examine witnesses in a Joreign country — Disqualification of petitionee — Agents and sub-agents — Colorable purchases — Bribery — Costs. A Commission to examine witnesses in a foreign country may be issued in the case of the trial of an election petition. In order to disqualify the petitioner acting as such, the respondent offered to prove (1) that the petitioner had been reported by the Judge trying a former election petition as guilty of corrupt practices ; (2) that the ' petitioner had in fact been guilty of corrupt practices at such election ; and (3) that he had been guilty of corrupt practices at the election in question. Held, that such evidence, if offered, would not disqualify the petitioner as such. Held, further, that as the petitioner did not claim the seat, evidence could not be gone into for the- purpose of personally disqualifying him. One C. canvassed for the respondent, and told the respondent he was going to support him, and the respondent expected and understood that he would do everything he could for him legitimately. C. did not attend any meetings of the respondent's committees, and made no returns of his canvassing. Held, on the evidence set out in the judgment, that C. was an agent of the respondent for the purposes of the election. The agent, C, employed one W. to go with him on the evening before the election to several electors, from whom both C. and W. made colorable purchases, but with the corrupt intention of inducing the persons from whom the purchases were made to vote or refrain from voting at the election. Held, that C. and W. were guilty of bribery, and that the election was avoided in consequence of their corrupt acts. The petitioner was allowed his costs, but not the costs of the charges which he failed to establish. The petition contained the usual charges of corrupt practices. During the proceedings at the trial it appeared that a necessary and material witness for the petitioner had removed to the State of Michigan, whereupon the learned Judge adjourned the trial so that an application might be made before him in Chambers for the issue of a com- mission. The learned Judge afterwards, on the authority of the Wcdlingford case (1 O'M. & H. ^7) and Staley- 804 DOMINION ELECTIONS. [A.D. bridge case (19 L. T. N. S. 703), made the order for a Commission. (See the report of the application, 8 P. R 64). Mr. Bethune. Q.C., and Mr. Riddell, for petitioner. M7\ Hector Cameron, Q.C., and Mr. Bergin, for re- spondent. Armour, J. — The counsel for the respondent at the commencement of the trial took the objection that. I had no jurisdiction to try this cause, which objection I over- ruled. He also at the same time offered to prove that the petitioner had been reported to the Speaker of the House of Commons as having been guilty of corrupt practices at the said election for the said electoral district, held on the 29th of January, 1874, by tlie Judge who tried a petition in respect of such last mentioned election, and to prove that the petitioner had in fact been guilty of corrupt piactices at that election; and had also been guilty of corrupt practices at the election for the said electoral district, held on the I7th of September, 1878 ; and contended that such proof being given, disqualified the petitioner from being a petitioner in this cause. I rejected the proof so offered, holding that if given it would not have the effect contended :^r : South Huron case (29 C. P. 301). He also at the close of the petitioner's case offered to prove the same facts for the purpose of disqualifying the petitioner ; but inasmuch as the petitioner did not claim the seat, I considered such proof irrelevant, and refused to receive it. [The learned Judge here referred to charges on which evidence had been given, but which he held not proved]. The remaining charges relied on by the petitioner's counsel must be determined by the construction to be put upon the acts of George Crites and Henry White on the night before the election, and by the responsibility of the respondent for such acts. 1878.] CORNWALL (3). 805 George Crites describes the manner of his becoming acquainted with Henry White and what transpired before his introduction to him, rendering such introduc- tion necessary, and the circumstances attending such introduction. [The learned Judge here read his notes of the evidence, the substance of which'is hereinafter referred to]. Henry White was a drover, who lived close to North- field, and happened to go down to Alguire's Hotel the, evening of the 16th of September. He did not know Crites wanted to see him. He didn't know Crites. Mr. Fulton introduced him to Crites, and he gave him a package, telling him that he got it at Ottawa Hotel. White opp.ned the .package and found $45.00 in it, but no letter. He put the money in his pocket with his other money. He didn't ask Crites who it was from, nor for any explanation about it. He was not surprised at re- ceiving it, nor did he think it strange. He made no remark about it. He had no idea who sent it to him, nor for what purpose, nor that it was to be used in the election. After White and Crites became acquainted, they got to know from each other that they were both supporters of Dr. Bergin, the respondent, and they took tea togethei- at Alguire's. Crites found out that Dr. Mattice and Henry Sandfield Macdonald were ab Northfield ; and he and White both concluded from that fact, and from the knowledge they said they had of their ways, and of the corruptibility of the voter.s in that locality, that they were there for the purpose of buying votes, and Crites said it was his busi- ness to watch them. White said that he had got a message from Mr. Moss, for whom he had been buying stock, to drive the stock into Northfield in the morning, and he would go with him. They went together. They went first to William Bender's. White paid Philip Bendei? $2.00 to help to drive stock next day, a service Bender did not perform ; and Crites bought fifty pounds of butter 806 DOMINION ELECTIONS, [A.D. from him at 16 cts. a pound, aud paid him the price, $8.00, which butter Bender afterwards delivered. They next visited Samuel Bender, from whom White bought a sheep, which Bender said was worth $3.25, for which White paid him $5.00. White swore it was worth $5.00. And Crites bought 25 lbs. of butter to be afterwards delivered, but which never was, on account of which he paid $2.00. They next visited David Loucks, from whom White bought a cow for $25.00, and paid $6.00 on account. The cow was delivered next morning, but she got away again and went home, and White never got her. They next visited George Bender. White had previously bought sheep from this Bender, for which he was to pay $10.75 ; and accord- ing to Bender's account, he told him that night that if he would vote he would give him $14.00 for them. White denied this, but admitted paying $4.00 on account of the sheep that night. They next went to William Arbuthnot's, Crites stayed on the road, and White went into the house. He gave Arbuthnot $4.00, he said, on account of stock, which he got next morning. Arbuthnot said he gave it to get him out to vote. They went to Jas. McBride's, ' after which Crites went home, leaving White to pursue his journey alone. He called on James T. Wesley, and paid him $5.00 on account of a cow he had bought from him for $20.00. White took the cow about four weeks after, and paid the balance. He visited Aaron Wesley, from whom some time previously he had bought sheep for $14.00, and had paid $4.00 on account, and according to Wesley's account, agreed to give him $2.00 more on the sheep if he would vote for the respondent. This White denied. White bought a heifer from Alpheus Runions, whom he found at a paring bee that night at Markle's, for $12.00, and paid him $4.00 on account. Bunions never got the balance, nor White the heifer. White also met James Bunions at the paring bee, and from him he bought two lambs at $4.00 each. This took place about midnight. 1878.] CORNWALL (3). 807 I have carefully considered the evidence of Crites and White above referred to, and, reading it with the other evidence adduced, I have come to the following conclu- sions of fact : That Crites went to Northfield on the evening of the 16th September, for the purpose of taking to White the package of money left at the Ottawa Hotel. That Crites knew when he got the package that it contained money that was being sent to White to be used corruptly at the election. That he delivered the money to White with the knowledge and intention that it would be so used. That White so used the whole or part of it, and that Crites was present and assenting to a part of it being so used. That the purchases, promises and payments made by White on, that night were made and paid by him with the corrupt intention of inducing the persons, from whom and to whom they were made, to vote or refrain from voting at the election, and that the said White was there- fore guilty of bribery. That the purchases and payments made by Crites on that night were made by him, and paid by him, with the corrupt intention of inducing the persons from whom and to whom they were made to vote or refrain from voting at the election, and that the said Crites was thereby guilty of bribery. The only remaining question is, was Crites a person for whose acts the respondent mr(st be held responsible 1 If he was such a person, then the respondent must be also held responsible for the acts of White — for Crites employed him. See the Bewdley case (1 CM. & H. 18). I extract the evidence bearing upon the question of Crites' agency. Crites said: " I took part in the election on the Doctor's side. ... I canvassed for about a week. I was almost in every part of the township. I had business of my own, and as I met parties I spoke in favor of the Doctor. I saw the Doctor, but did not converse with him. I cannot say whether he knew I was canvassing. He did not meet me out canvassing. I may have passed 808 ' DOMINION ELECTIONS. [A.D. him on the street ; I gave him no account of the progress I made. I may have told him so and so was going .. against him. I did not tell him to see any particular per- son." James Kirkpatrick, secretary o£ the Conservative Association, said : " I understood that Crites was a sup- porter of the Doctor's. I did not think that he was doing more than a hundred others. I had no communication with him about what he was to do. He made no returns ; we had no regular returns. He never attended a meeting, or gave any information. ... I am sure that he never attended a committee meeting at all ; I attended every meeting regularly. There would be a couple of dozen at the meeting. I knew that he had been canvassing like others. I would have noticed him had he been present. . There were a great many others who actively supported us that did not come at all. He was not canvassing regularly. We did not furnish books to anybody for that purpose. I know people who were more active than he. ... I know that Crites sup- ported the Doctor, but he was not canvassing regularly. I suppose there were about one hundred canvassing the same way as he was. He was not employed by the com- mittee to go around. Of my own knowledge I do not know of any one Crites canvassed. I suppose he was canvassing, asking people as he happened to meet them for their voles. I knew that he was always an active man in elections ; I mean that he is a man who always works hard during an election ; he did in this case as in others. He took no part so far as active co-operation at the meetings is concerned ; he never attended any of the meetings. I knew he was a Conservative, and took for granted that he was supporting the Doctor.'' The respondent said : " I was not certain till a short time before the election what course George Crites would take, knowing his warm personal friendship for Mr. Mac- lennan on the one hand, and his strong political feeling the other way. I met him, and he told me he was going to support me. I think this was after the writ issued, 1878.] CORNWALL (3). 809 but before nomination. I do not think I told him I hoped he would do all he could for me ; I did not point out any- thing he could do for me in particular. Of course, when I asked a man for his support, and he promised to give it to me, I expected and understood he would do everything he could for me legitimately — this applies to Crites in- dividually. ... I was not aware of George Crites going out to the west side of the township on the night of the 16th of September, nor do I know it now. I think I knew at the time of the nomination that Crites was a supporter of mine, and I believe he is a man who would do all that he could once that he took sides." I' had occasion in the North Ontario Election case (ante p. 785) to express my views at some length, supporting them by authority, on the question of agency as applic- able to parliamentary elections. And it is, therefore, needless for me to do more than refer to that case, and to say that, applying the views that I then expressed to the present case, I am compelled to the conclusion that I must, upon the evidence here set out, hold Crites to have been a person for whose acts, in relation to this election, the respondent must be held responsible. I find, therefore, these charges proved. And I deter- mine that the election and the return of the respondent are void. The petitioner will get his costs ; but he will tax no costs in respect of the charges which he has failed to establish. (14 Commons Journal, 1880, p. 2). DIGEST OF CASES. ADMISSIONS.— (1.) Of Bribery.— 1. The respondent, a week before the trial, served a notice on the peti- tioner admitting bribery by one of his agents, and notifying the peti- tioner not to incur further costs. At the trial the respondent, pur- suant ti> the notice, gave evidence -ot bribery by an agent, which the Court held sufficient to avoid tbe election. The petitioner then con- tended that he had a right to show that corrupt practices had exten- sively prevailed, and that the re- spondent had been personally guilty of corrupt practices. Beld, that the functions of the Court were judicial and not inquisitorial, and that no further evidence should be received on the issue as to the avoidance of the election on account of bribery by agents. But if incidentally it should appear, in the inquiry as to the personal charges against the respondent, that corrupt practices extensively prevailed, the same would be certified in the report to the Speaker. West Northumberland, 562. 2. Before the trial the respondent served a notice upon the petitioner, admitting that the election must be avoided on the ground of bribery by an agent without his knowledge or ■consent. Such admission was acted upon at the trial, and the election avoided accordingly. North Simcoe, ■624. (2.) Of Counsel.— 1. The ad- mission of counsel in open court, — that the giving of $2 to a voter by ^an apent of the respondent, after such voter had voted, such voter .admitting that he did not know why the $2 was given to him, was bribery, — acted upon, and the elec- "tion avoided. Oarteton, 6. 2. The respondent had a majority of 261 votes at the election, and at the trial his counsel admitted that there was evidence which would have the effect of avoiding the elec- tion under R. S. 0,, c. 10, s. 139 ; and the Court, on such admission, declared the election void. Dufferin. 530. See also pp. 46, 199, 203. AGENCY.— 1. To sustain the relation of agency, the petitioner must show some recognition by the candidate of a voluntary agent's services. The Westminster case (1 O'M. & H. 89) as to agency followed. Welland, 47. 2. Agency in election matters is a result of law to be drawn friim the facts of the case, and the acts of the. individuals. EaM Feterboro, 245. 3. Acts of agency and the deci- sions bearing thereon, discussed. North Ontario, 304. 4. The Parliamentary Jaw of agency is a special law, and is differ- ent from the ordinary law of agency. In Parliamentary elections the prin- cipal is liable for all acts of his agent, even where such acts are done con- trary to the express instructions of such principal. Cornwall, 547. 5. Mere canvassing of itself does not prove agency, but it tends to prove it. A number of acts, no one of which might in itself be con- clusive proof of agency, maj-, when taken together, amount to proof of such agency. Ibid. 6. If a candidate in good faith undertakes the duties which his agent might undertake, the acts of a few zealous political friends in canvassing for him, introducing aim to electors, attending public meet- ings and advocating his election, or bringing voters to the poll, would not make such candidate responsible for prohibited acts contrary to his publicly, declared will and wishes, and without his knowledge and con- sent. South Norfolk, 660. 7. Remarks on the evidence of agency. Ibid. 812 DIGEST OF CASES. 8. The law of election agency is not capable of precise definition, but is a shifting elastic law, capable of being moulded from time to time to meet the inventions of those who in election matters seek to get rid of the consequences of their acts. North Ontario, 785. AGENTS.-(1.) Generally .-1. When a candidate puts money into the hands of his agent, and exercises no supervision over the way in which the agent is spemiingthat money, but accredits and trusts him, and leaves him the power of spending the money, although he may have given directions that none of the money should be improperly spent, there is such an agency established that the candidate is liable to the fullest extent not only for what that agent may do, but also for what all those whom that agent employs may do. South Grey, 52. 2. Evidence was given to show that certain parties had attended meetings with the respondent and canvassed for him, and had per- formed other acts of alleged agency, as set out in the evidence. Held, . that the acts of alleged agency relied on in the evidence were not sufficient to constitute such parties the agents of the respondent. North York, 63. 3. Money was paid by an agent of the respondent ($7 each) to cer- tain votsrs for canvassing, they observing that "a little money in election time was allowed for knock- ing around,'' which observation the agent considered " going about to solicit votes. " The agent denied it was paid with any corrupt intent, although his evidence was not satis- factory. The voters swore the money was paid to their wives, and the agnnt was not recalled to explain it. Held, that although such pay- ment might be open to an unfavor- able interpretation, it was not, according to the evidence, incon- sistent with being made without any improper motive. West Toronto, 97. 4. Observations on the reasons why candidates should be held liable for acts done by their agents. The Taunton case (1 O'M. & H. 184). approved. Ibid. 5. A witness stated that he had asked the people in his neighborhood to vote for the respondent, had attended a meeting of the respond- ent's friends, and made arrange- ments for bringing up voters on polling day, and had a team out on polling day. HeM, that the eWdence of his being an agent of the respond- ent was not sufficient. East Peter- horo, 245. 6. One C. accompanied the re- spondent when going to a public meeting, and canvassed at some houses. On the journey, the respond- ent cautioned C. not to treat, nor do anything to compromise him or avoid the election. The respondent's election agent paid for C. 's meals at the place where the meeting was held. Held, that the evidence showed that the respondent had availed himself of C. 's services, and was therefore responsible for his acts. Ibid. 7. One S., who desired nomination as a candidate by a Reform Conven- tion, was not nominated, and there- upon, from hostility to the conven- tion and its nominee, opposed the candidate of the convention, which thereby had the eflfect of supporting the respondent. At the close of the poll, the respondent publicly thank- ed S. for being instrumental in bringing about his election. S. owned a shop and tavern, but the license ' for the latter was in his clerk's name ; and during the poll- ing hours on polling day spirituous liquors were sold and given in the shop and tavern. Held, that what was done by S. at the election was in pursuance of a hostile feeling against the convention and its can- didate.and did not constitute him an agent of the respondent. Card- well, 269. 8. One M., the reeve of a town- ship, exerted himself strongly in favor of the respondent, to whom he was politically opposed, and against the other candidate, and attended meetings where the re- spondent was, and spoke in his favor. The reason for his supporting the respondent and opposing the other (ministerial) candidate, with whom AGENTS (1) GENERALLY. 813 Tie was politically in accord, was, that the ministry of the day had separated the township of which he was reeve from the riding. The respondent asked M. to attend a public meeting, which he did ; and at another meeting which he attend- ed, M. stated (but not in the re- spondent's hearing) that he was acting there on the respofident's behalK. M, was once in the respond- ent's committee-room, and signed and circulated circulars issued by the respondent's friends. Held, that the question of agency being one of intent, therespondent, underthe cir- Ballot paper inadvertently torn. (8) Inadvertent mirks in addition. S18 DIGEST OF CASES. to the cro33. (9) Cross made with pen and ink instead of a pencil, Ibid. 6. The neglect of a Deputy Re- turning Officer to initial the ballot papers, and to provide pea and ink instead of a pencil to mark them, would not avoid the election. IVid. 7. The petitioner had received a majority of the ballots cast at the election ; but on a, recount hefore the County Judge, certain ballots, with other marks on the back than the initials of the Deputy Returning Officers, were rejected by the County Judge, thereby giving a majority to the respondent. Evidence was given on the hearing of the petition that the Deputy Returning Officers had, from a mistaken idea of their duty, placed the numbers of the voters, as marked in the voters' list, on the backs of the ballots. Held, that under 42 Vic, u. 4, s. 18, the marks so made did not avoid the ballots, and that such ballots should now be coanied. Russdl (2), 519. 8. Semble, that the County Judge, a,cting ministerially on the recount of ballots, could not have investi- gated by whom or for what motive such marks had been made on the ballots. Ibid. 9. A voter who had inadvertently torn his ballot, and whose ballot was rejected on the counting of votes, was allowed his vote, the evidence proving that no trick was intended for the purpose of showing how he intended to vote. South Wentworth, .531. 10. The Election Act in its enact- ing part requires ballots to be marked with a cross on any place within the division which contains the name of the candidate. Ballots marked with a straight line within the division, or with a cross on the back, were rejected. Ibid. 11. Observations on the diflferenee between the English and Ontario statutes in this respect. Ibid. 12. Certain Deputy Keturning OfE6ers, before giving out ballot papers to the voters at the election in question, placed numbers on the ballots corresponding with the num- bers attached to the names of such voters on the voters' lists. Held, (1) that the Deputy l^turning Offi- cers had acted contrary to law in numbering the ballots, and that the ballots so numbered should be re- jected as tending to the identifica- tion of the voters. (2) That such conduct of the Deputy Returning Officers having had the eflfeot of changing the result of the election, a new election was ordered. Bast Hastings, 764. See also p, 223. BETS.— -See pp. 489, 660, BRIBERY. — See Corrupt Prac- tices (2). CANDIDATE HIS OWN AGENT.— %pp. 211, 660. CANDIDATE NOT SUPERVISING HIS AGENT.— &e pp. 52, 560, 568. CANVASSING.— &e pp. 97, 187, 214, 245, 304, 343, 387, 420, 547, 660, 785, 803. CASE NOT IN PARTICULARS.— *ee pp. 21, 163, 243, 252, 420, 489. CHAMPERTY. — It is not a cham- pertous transaction that au associ- ation of persons, with which the petitioner was politically allied, agreed to pay the costs of the peti- tion. Even if the agreement were champertous, that would not be a sufficient reason to stay the pro- ceedings on the petition. North Simcoe, 617. CHARITY.— See pp. 214, 547, 576, 751. COLORABLE APPOINTMENT OF SCRUTINEER.— Scn ; that the new particulars only came to his knowledge three days before the application; and that he believed they were material to the issues joined. Held, that as it was not shown that the petitioner or the persons employed could not have given the attorney the information long prior to the application, and as it was not sworn that the charges were believed to be true, nor were they otherwise confirmed, and as the amendment might have been moved for earlier, the application should be refused. South Norfolk, 660. PARTIES. — The petition, besides charffing the respondent with vari- ous corrupt acts, charged one of his agents with similar acts, and claim- ed that the agent was subject to the same disqualifications and penalties as a candidate. The prayer of the petition asked that this agent might be made a party to the petition, and that he might be subjected to such disqualifications and penalties. Held, (1) That there is no authority in the Election Acts or elsewhere, for making an agent of a candidate a respondent in a petition on a charge of personal misconduct on his part. (2) There is no authority given to the Election Court or the Judge on the rota to subject a per- son "other than a candidate" to such disqualifications. (3) The Judge's report to the Speaker as to those persons " other than the can- didate," who have been proved guilty of corrupt practices, is not ' conclusive, so as to bring them within .34 Vic. , cap. 3, sec. 49, and so render them liable to penal con- sequences. South Oxford, 238. PAYMENT OF DEBT. —fee pp. 97, 205, 252, 304, 612, 751, 785. PERSONAL OBJECr OF AGENT.— See pp. 139, 262, 2C9. PERSONATION.— ..S'ee p. 274. PETITION.— (1) Bona Fides.— A charge that the petition was not signed by petitioner bona fide, but that his name was Used mala fide by other persons, is a, matter of fact to be tried, and cannot be raised by preliminary objection. North Sim- coe, 617. (2) Amendment. — The Judge trying an election petition has power to amend the petition by allowing the insertion of any objectionto the voters' lists used at the election. Monck, 154. PETITION (3) WITHDRAWAL. 843 (3) Withdrawal.— The Court recommended the petitioner to with- draw his petition in this case ; 'and on an application for that purpose, another elector having applied to be substituted as petitioner : Held, that as the Court of Appeal had been placed in possession of all the -charges against the respondent, and of the evidence in support of them, and had recommended the with- drawal of the petition, and no suffi- oient additionalgrounds having been shown for such substitution of peti- tioner, the order for the withdrawal of the petition should be granted. Peel, 485. (4) Trial of.— 1 . When a Rule of Court has been issued under the Controverted Elections Act, ap- pointing a place for the trial not within the constituency the election for which is in question, the Judge by whom the petition is being tried has no power to ailjourn, for the further hearing of the cause, from the place named in the Rule of Court to a place within such constit- uency. South Grey, 52. 2. The day appointed for the trial of an electi in petition may be al- tered to an earlier day by consent of the parties, and by an order of the Judge. West Mgin, 223. PLEADING. — The 6th General Rule in Election Cases does not pre- clude the statement of evidence in the petition ; it renders it unneces- sary, and is intended to discourage ^uch pleading. South Oxford, 238. POSTBIASTER.— -See p. 158. PRELIMINARY OBJECTIONS.— As the Ontario 4ct (K. S. O., c. U) makes no provision similar to that in the Dominion Controverted Elec- tions Act, 1874 (37 Vic, c. 10, Can.), limiting the time within which preliminary objections to an election petition should be taken, the special circumstances of each case must determine whether the preliminary objeetioils have been taken with sufficient promptitude. Duferin, 529. See also pp. 1, 529, 531, 556, 577, 584, 617, 644, 647, 749, 803. PRESENT (1) To Voter's Wife.— See pp. 97, 283, 736. (2) To Voter's Relative.- -See pp. 8, 252. PROPERTY QUALIFICATION. —1. A candidate may be a petitioner al- though his property qualiKcation be defective, if it wag not demanded of him at the time of his election. If he claims the seat, his want of qualification may be urged against his being seated, but he may still show that the respondent was not duly elected, if he so charge in his petition. North Victoria, 584. 2. Held, (1) As in the North Vic- toria case {ante p. 584), that the Dominion Elections Act of 1874 not being retrospective, the ques- tion of property qualification of can- didates, at elections for members of the House of Commons held before the passing of the Dominion Elec- tion Act of 1873, can still be raised in pending cases. (2) That it is not necessary for an elector, demanding the property qualification of a can- didate, to tender the necessary , declaration for the candidate to make ; the intention of the statute being that the candidate must pre- pare his own declaration. Card- well, 644: See now Dom. Elec. Act, 1874, s. 20. RECEIVER OF TREAT,— See pp. 179, 245, 420. RECOUNT, OF BALLOTS.— See pp. 519, 764. RECRIMINATORY CASE. -1. The respondent, on the opening of the case, charged that the petitioner was a candidate at the election, and as such candidate was guilty of cor- rupt practices, and therefore dis- qualified to be a petitioner. The Chief Justice, without deciding whether the respondent had the right to attack the qualification of the petitioner, allowed the evidence to he given, but held the same to be insu-fficient. Priiice Edward, 45. 2. Where a charge of corrupt practices by way of a recriminatory case is alleged by a respondent against a petitioner, it may be re- served until the conclusion pf the petitioner's case. North Simcoe, 50. 844 DIGEST OF CASES. 3. Where the right of the peti- tioner to claim the seat is decided adversely in one case, it is no preju- dice to the respondent's case that other charges against the petitioner are not pronounced upon. North Victoria, 252. 4. Recriminatory charges are per- mitted in the interest of electors, in order to prevent a successful peti- tioner obtaining the vacated seat if he has violated any provision of the Election Law. Ibid. See also pp. 529, 584, 617, 803. REFRESHMENTS TO VOTERS.— See pp. 52. 205, 252, 671. REFUSAL TO SWEAR. —See p. 780. RESULT OF ELECTION. — See pp. 489, 530, 539, 705. RETURNING OFFICER.— 5'cm6?e, that the returning officer is both a ministerial and a judicial oificer ; and that he might decline to receive the nomination of persons disquali- fied by status or office, and also no- mination papers signed by unquali- fied persons if he had good reasons for so doing. South Renfrew (2), 705. SCRUTINY. — 1. On a scrutiny the practice is for the person in a min- ority to place himself in a majority, and then for the person thus placed in a minority to strike off his op- ponent's votes. Stormovi, 21. 2. The Court having compared the Voters' List of 1870 with the poll books used at the election in the Township of Hillier, found that 35 persons had voted for the respondent whose names were not on the list of 1870 ; and the names of such persons having been struck ofif the poll, the respondent was found to be in a minority ; and the seat was thereupon awarded to the other candidate, he having obtained on the scrutiny a majority of the votes. Prince Edward, 160. 3. Where a petition claims the seat for the unsuccessful candidate, a scrutiny of votes may be ordered to be taken in each municipality by the Registrar acting for the Judge on the rota. West Elgin, 227. 4. During the scrutiny of votes the respondent abandoned the seat to his opponent, after his opponent had secured a majority of 8 votes, and agreed that such should stand as his opponent's majority, and that the Court should declare such opponent duly elected ; and the same was ordered by the Court. lUd. 5. During the progress of a scruti- ny of votes, certain ballot and other papers were stolen from the Court, which had the effect of rendering the scrutiny useless. Lincoln (2), 489. 6. Particulars for a scrutiny of votes were delivered by the respond- ent objecting to certain voters, as (1) aliens ; (2) minors ; (3) not owners, tenants or occupants of the property assessed to them ; and (4) farmers' sons not residing with their fathers upon the farm, as re- quired by law. On a motion to strike out such particulars : Seld, that under the " Voters' Lists Finality Act" (41) Vic, c. 21, s. 3), the legality of the votes so objected to could not be inquired into, and that the particulars should be struck out. SoiUh Wentworth, 531. 7. A petitioner claiming the seat on a scrutiny may show, as to votes polled for his opponent : (1) That the voter was not 21 years of age ; (2) that he was not a subject of Her Majesty by birth or naturalization ; (3) that he was otherwise by law prevented from voting ; and (4) that he was not actually and bona fide the owner, tenant, or occupant of the real property in respect of which he assessed. North Victoria, 584. See also p. 531, and 41 Vic, c 21, 0. 8. On a preliminary objection to a petition claiming the seat on a scrutiny, theCourt declined to strike out a clause in the petition which claimed that votes of persons guilty of bribery, treating and undue in- fluence, should be struck off the poll. The giver of a bribe, as well as the receiver, may be indicted for bribery. Ibid. 9. Evidence of corrupt practices committed by persons in the inter- est of both candidates at the pre- vious election, may be given at the SECURITY. 845 trial of the seqond petition, with the view of striking oflf the votes of any such persons who may have voted at the second election. Corn- wall (2), 647. SECURITY.— The security iu this case was offered, in the shape of a Dominion note for $1,000, to the Registrar of the Court of Chancery, who stated to the petitioners' solicitors that he could not receive it, but directed them to make pay- ment of it through the Accountant of the Court in the same manner as moneys were usually paid into court. The solicitors then paid the money into the bank to the credit of the matter of the petition, ac- cording to the usual practice of the Court of Chancery. Held, that the deposit of the security, as re- quired by the Act, was properly given. North York, 749. SPEAKER (1) Report to. — The fact of persons having been re- ported by the Judge as guilty of corrupt practices at the former elec- tion, has not the effect of disquali- fying them from voting at the se- cond election, The report of the Judge is not as to tliem an adjudi- cation, for voters are not, in a pro- per judicial sense, paities to the proceedings at an election trial. Cm-nwall (2), 647. See also pp. 2.38, 562. (2) Certificate to.— The Court cannot grant an interim certificate declaring an election void, as the statute contemplates only one cer- tificate to the Speaker, certifying the result of the election trial. Lincoln (2), 489. SPECIAL CASE. — 1. A special case may be reserved for the opinion of the Court of Queen's Bench only when the Judge presiding at the election trial has a serious doubt as to what the law is, or believes that the Court might entertain a differ- ent opinion from that of the Elec- tion Judge. North Yorh, 62. 2. Qucere, whether, under 34 Vic, cap. 3, sec. 20, the Rota Judge has power, before the close of the case, to reserve questions for the Court. Brockville, 139. 56 3. Where a class of persons affect- ed by the decision of a case is nu- merous, and the question involved is one of general importance, the Judge may reserve a special case for the opinion of the Court of Queen's Bench ; and the Judge here decided to take that course. West York, 156. See also p. 725. STOLEN BALLOT PAPERS.— i'ee p. 489. SUBSTITUTION OF PETITIONER. —See p. 485. TELEGRAMS.— The Court order- ed the agent of a telegraph com- pany to produce all telegrams sent by the respondent and his alleged agent during the election, reserving to the respondent the right to move the Court of Appeal on the point ; the responsibility as to conse- quences, if it were wrong so to order, to rest on the petitioner. South Oxfprd, 243. TENDERED VOTES.— 1. Where a voter offered to vote at a poll, but did not ask for or put in a tendered , ballot paper. Held, that the Ballot Act required the vote to be given secretly, and that the parol declara- tion of the voter as to his vote could not be received in order to add it to the poll. — Secord's vote. Lincoln (2), 500. 2. The names of certain persons who were qualified to vote at the elec- tion appeared on the last revised assessment roll of the municipality, but were omitted from the voteis' list furnished to the deputy return- ing officer and used at the election. They tendered their votes at the poll, but their votes were not re- ceived J and a majority of them stated to the deputy returning ofllcer that they desired to vote for the petitioner. The petitioner had a majority without these votes. Held, by the Court of Queen's Bench (affirming Wilson, J.), no ground for setting aside the elec- tion. North Victoria (2), 671. 3. Semble, (1) That, though the only mode of voting is by ballot, if it became necessary to decide the 846 CIGEST OF CASIiS. election by determining the right to add these votes, it should be de- termined in that manner most con- sistent with the old law, and which would have saved the disfranchise- ment of electors, and the necessity of a new election. (2) If the right of voting can only be preserved by divulging from necessity for whom the elector intended to vote, the necessity justifies the declaration the elector is forced to make, as there is nothing in the Act which prevents the elector from saying for whom he intends to vote. (3) An elector duly qualified, who has been refused a ballot paper by the deputy returning officer, cannot be deprived of his vote ; otherwise it would follow that because the deputy re- turning officer had wrongfully re- fused to give such elector a ballot paper, his vote would not be good in fact or in law. Ibid. See also p. 780. TAVERN-KEEPER.— ,See pp. 8, 139, 187, 199, 231, 252, 269, 362, 391, 420, 500, 67). TREATING.— ^'ee CoKRtrpT Prac- tices (3). UNDUE INFLUENCE,— ,See COR- RUPT Practices (4). VOTER.— 1. The Election Law of 1868, by the term " owner," gives to a husband whose wife has an estate for life or a greater estate, the right to vote in respect of his wife's property ; and that the petitioner having that qualification, and being in possession of his wife's estate, was held entitled to petition. Pres- cott, 1. 2. The name of the voter being on the poll book is prima fa.(Ae. evi- dence of his right to vote. The party attacking the vote may either call the voter, or ofier any other evidence he has on the subject. Stormont, 21. 3. A voter being duly qualified in other respects, and having his name on the roll and lists, but by mistake entered as tenant instead of owner or occupaut, or vice versa, is not disfranchised merely because his name was entered under one head and not another. Ibid. 4. Where father and son live to- gether on the father's farm, and the father is in fact the principal to whom money is paid, and who distributes it as he thinks proper, and the son has no agreement bind- ing on the father to compel him to give the sou a share of the proceeds of the farm,> or to cultivate a share of the land, but merely receives what the father's sense of justice dictates : Held, the son has no vote. — Earrum's vote. Ibid. 5. In a milling business where the agreement between the father and son was, that if the son would take charge of the miU, and manage the business, he should have a share of the profits, and the son, in fact, solely managed the business, keep- ing possession of the mill, and ap- plying 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 vote. — Bullock's vote. Ibid. 6. Where 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 : Held, that although the son was not merely assessed for the real but the personal property on the place (his title to the latter being on the same footing as the former), he was not entitled to vote. — Aaney's vote. Ibid. 7. Where the objection taken was, that the voter was not at the time of the final revision of the as- sessment roll the bona fide owner, occupant or tenant of the property in respect of which he voted ; and the evidence showed a joint occu- pancy on the part of the voter and his father on the land rated at $!240: Hdd, that the notice given did not point to the objection that if the parties were joint occupants they were insufficiently rated, and as the objection to the vote was not pro- perly taken, the vote was held good. — Baker's vote. Ibid. 8. Where the father had made a will in his son's favor, and told the VOTER. 847 son if he would work the place and support the family he would give it to him, and the entire manage- ment remained in the son's hands from that time, the property being assessed in both names — the" profits to be applied to pay the debt due on the place : Held, that as the un- derstanding was that theson worked the place for the support of the family, and beyond 'that for the benefit of the estate, which he ex- pected to possess under his father's will, that he did not hold immedi- ately to his own use and benefit, and was not entitled to vote. — Weort's vote. Ibid. 9. Where the voter had only re- ceived a deed of the property on which he voted on the 16th August, 1870, but previous to that date had been assessed for and paid taxes on the place, but had not owned it : Held, that not possessing the quali- fication at the time he was assessed, or at the final revision of the roll, he was not entitled to vote. — Gahey's vote. Ibid. 10. Where the voter had been ori- ginally, before 1865 or 1866, put upon the assessment roll merely to give him a vote, but by a subse- Cfuent arrangement with his father, made in 1865 or 1866, he was to support the father, and apply the rest of the proceeds to his own sup- port : Held, that if he had been put on originally merely for the pur- pose of giving a vote, and that was the vote questioned, it would have been bad ; but being continued sev- eral years after he really became the occupant for his own benefit, he was entitled to vote, though ori- ginally the assessment began iu his name merely to qualify him.— ©ore's vote. Ibid. 11. Where the voter was the equitable owner, the deed being taken in the father's name but the son furnishing the money, the father in occupation with the assent of his son, and the proce3d3iiot di- vided : Held,- that being the equit- able owner, notwithstanding the deed to the father, he had the right to vote. Held also, that being rated as tenant instead of owner did not afi'ect his vote. — Blair's vote. Ibid, 12. Where the voter and his son leased certain property, and the lease was drawn in the son's name alone, and when the crops were reaped the son claimed they be- longed to him solely, the voter owning other property, but being assessed for this only and voting on it : Held, that although he was on the roll and had the necessary quali- fication, but was not assessed for it, he was not entitled to vote, — Hill'a vote. Ibid. 13. Where the voterwas the ten- ant of certain property belonging to his father-in-law, and before the expiration of his tenancy the father- in-law, with the consent of the voter (the latter being a witness to the lease), leased the property to another, the voter's lease not expir- ing until November, and the new lease being made on the 28th March, 1870 : Held, that after the surren- der by the lease to which he was a subscribing witness, he ceased to be a tenant on the 28th of Miirch, 1870, and that to entitle him to vote he must have the qualification at the time of the final revision of the as- sessment roll, though not necessari- ly at the time he voted, so long as he was still a resident of the elec- toral division. — Rupert's vote. Ibid. 14. Where a verbal agreement was made between the voter and liis father in January, 1870, and on this agreement the voter from that time had exercised control, and took the proceeds to his own use, al- though the deed was not executed until September following : Held, entitled to vote. — Gollinger's vote. Ibid. 15. Where a voter properly as- sessed, who was accidentally omitted from the voters' list, for polling di- vision No. .1, where his property lay, and entered on the voters' list for polling division No. 2, voted in No. 1, though not on the list, his vote was held good. Brochville, 129. 16. A.'s name appeared on the assessment roll and voters' list as owner, but no property appeared opposite his name ; just below A.'s name, the name of B. was entered as tenant, With certain property following it, but B. 's name was not 848 DIGEST OF CASES. bracketed with A.'s. Evidence was admitted to show that A. owned the property next below his name, for which B. his tenant was assessed as tenant, and A.'s vote was held good. — Baher's vole. Ibid. 17. The widow of an intestate owner continuing to live on the pro- perty with her children, who own the estate and work and manage it, should not, till her dower is as- signed, be assessed jointly with the joint tenants, nor should any interest of hers be deducted from the whole assessed value. Where, therefore, four joint tenants and such doweress occupied property assessed for |900, the joint tenants were held entitled to the qualifica- tion of voters. — Oilroy's vote. Ibid. 18. Where a husband had posses- sion of a lot for which he was as- sessed as occupant and his wife as owner, but which belonged to the wife's daughters by a former hus- band, his vote was held good. — fVhaley's vote. Ibid. 19. Where the owner died intes- tate, and the husband of one of his daughters leased the property and received the rents, such husband was held not entitled to vote. — Leslie's vote.. Ibid. 20. Where it was proved that for some time past the owner had 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 — the son's vote was held good. — Caldwell, Moore, and Smith's votes, Ipid. 21. Where it was proved that an agreement existed (verbal or other- wise) that the son should have a share in the crops as hia own, and such agreement was bona fide acted on, the son being duly assessed, his vote was held good ; the ordinary test being ; had the voter an actual existing interest in the crops grow- ing and grown ? Ibid. 22. But where such crops could not be seized for the son's debt, the son was not entitled to vote, — Francis' vote. Ibid. 23. Where the agreement did not show what share in the crops the son was to have with his father, and it appeared to be in the father's discretion to determine the share, such son was not entitled to vote — Johnson's vote. Ibid. 24. Where a father was by a ver- bal agreement ' ' to have his living off the place, " the son being owner and in occupation with the father, the father was not entitled to vote. — Wiltse's vote. Ibid. 25. A tenant from year to year cannot create a sub-tenancy nor create a right to vote by giving another a share in the crops raised on the leased property. — Dunham's vote. Ibid. 26. Wherea man occupieda house as toll collector, and not in any other right, he was not qualified to vote. — Mc Arthur's vote. Ibid. 27. The right to vote is not to be taken away or the vote forfeited by the act of the voter unless under a plain and express enactment, for it is a matter in which others besides the voter are interested.— ^rocABiMe, 139. 28. Where two partners in busi- ness occupied premises the freehold of which was vested in one of them, and the assessment of the premises was sufficient to give a qualification to each, both partners were held qualified to vote. — Fitzgerald's vote. South Grenville, 163. 29. Where a father, the owner of a lot, told his son that he might have the lot and advised him to get a _ deed drawn, and the lot had been assessed to the son for 3 or 4 years, and was rented to a tenant by the father with the assent of the son, who paid to the father his wages but the father collected the rent. Held, that as there was nothing but a voluntary rift from the father to the son, without possession, the son's vote was bad. — Lundy's vote. Ibid. 30. Where a father had made a will of a lot to his 'son who was assessed for it, and the son took the crops except what was used by the father, who resided on the lot with his wife, the son residing and VOTER. working on another farm. Held, that the son had not such a beneficial interest in the lot as woiild entitle him to vote. — MuUin's vote. Ibid. 31. Where A., who resided out of the riding, had made a contract in writing to sell to B. the property assessed to him as owner, but had not at the time of the election exe- cuted the deed, B. having been in possession of the property for several years under agreements with A. Held, that A. was a mere trustee for the purchaser, and had there- fore no right to vote,— Holden's vote. Ibid. 32. Where a vendor before the re- vision of the assessment roll had ooriveyed and given possession of the property to a purchaser, and such purchaser had afterwards given him a license to occupy a small por- tion of the property, such vendor was held not entitled to vote. — Nohlin's vote. Ibid. 33. Where the owner of mort- gaged property died intestate, leav- ing a widow and sons and daugh- ters, and the property was sold under the mortgage, and the deed made to the widow, but three of the sons furnished some of the pur- chase money, and all remained in possession, and the eldest son was assessed as occupant. Held, that as the eldest son did not show that the property was purchased for him, and -the presumption from the evi- dence being that it was bought for the mother, such eldest sou had no right to vote. — Morrow's vote. Ibid. 34. A trustee under a will having no present beneficial interest in the real property assessed to him, was held not entitled to vote. — Jones' vote. Ibid. 35. Where a voter was assessed for property which he sold on the 27th February, 1871, before the re- vision of the Assessment Eoil, and was not assessed for other property of which he was in possession as owner or tenant, he was held not entitled to vote. — Place's vote. Ibid. 36. Tiie mistake of the number of the lot does not come under the same rule as the mistake of a name, as the latter is provided for in the statute and the voter's oath. Ibid. 37. Where one of two joint own,ers was assessed for property at |200, he was not entitled to vote. Ibid. 38. A voter whose qualification is successfully attacked may show a right to vote on income ; but in such case he must prove that he has complied with all the require- ments of the Act which are essen- tial to qualify him to vote on in- come. — Gray'svote.. Lincoln{i), 500. 39. A^voter was assessed in two wards of a town ; he parted with his property qualification in one of the wards, but voted in such ward. Held, that the vote might be sup- ported on the qualification in the other ward, which, if the voter had voted on it, would have made it necessary for him to vote in another polling division.-(?ifoora'« vote. Ibid, 40. A person assessed for land he does not own, though receiving rent for it from a tenant, is not qualified to vote. — Clark's vote. xbid. 41. By the Dominion Elections Act of 1873, the qualification of voters to the House of Commons was regulated by the Ontario Elec- tion Acts. North Victoria, 584. 42. The respondent was elected by four votes. At the election the names of twelve persons who were entered on the assessment roll as "freeholders" appeared on the voters' lists, owing to a printer's' mistake, as " farmers' sons. " Their votes were challenged at the poll, and they were required by the peti- tioner's scrutineers to take the farmers' sons' oath, which they re- fused. Subsequently they offered again to vote and to take the owner's oath, and the deputy re- turning officer, who was also clerk of the municipality, knowing them,i gave them ballot papers and allowed them to vote. Held, (1) That having been rightly entered on the assessment roll, the mistake as to their qualifications on the voters' list did not disfi;anchise them. (2) That their refusal to take the farm- , ers' sons' oath was not a refusal to take the oath required by law. A refusal to swear is when a voter refuses to take the oath appropriate to his proper description. (3) That having a right to vote, although 850 DIGEST OF CASES. they voted in a wrong capacity, their votes could not be struck off. Prescott, 780. See also p. 671. VOTERS' LISTS. — 1. Special re- port, and observations on making the revised lists of voters final, ex- cept as to matters subsequent to the revision. Stormont, 21. 2. The proper list of voters to be used at an election is " the last list of votei's made, certified, and de- livered to the Clerk of the Peace at least one month before the date of the writ to hold such election." Monck, 154. 3. An irregular voters' list had been used in one of the townships in the Electoral Division ; but that the result of the election had not been affected thereby, and that the election was not avoided. Ihid. 4. Held, following the Monck case (.32 Q. B., 147, ante p. 154), that the list of voters to be used at an election must be the list made, cer- tified and delivered to the Clerk of the Peace at least one month before the date of the writ to hold such election. Prince Edward (2), 161. 5. The list of voters used at the election in the Township of Hil- lier was not filed until the 28th No- vember, 1871, and the writ of elec- tion was dated 9th December, 1871. Held, that the list of voters of 1871 should not have been used. Ibid. 6. Held, that the effect of the Voters' Lists Finality Act, 1878, was to render the voters' lists final and conclusive of the right of all per- sons named therein to vote, except where there had been a subsequent change of position or status by the voter having parted with the inter- est which he had (or by the assess- ment roll appeared to have) in. the property, and becoming also a non- resident of the electoral division. South Wentworth, 531. 7. Mistakes in copying the voters' lists should not deprive legally qualified voters of their votes any more than the names of unqualified voters being on the list would give them a right to vote , But the mere fact that the lists were not correct alphabetical lists, or had not the correct number of the lot, or were not properly certified, or the omit- ting to do some act as to which the statute is directory, is no ground for setting aside an election, unless some injustice resulted from the omission, or unless the result of the election was affected by the mis- take. North Victoria, 584. 8. The Court will not go behind the voters' lists to inquire whether a voters' name was entered upon the assessment roll in a formal, manner or not. North Simcoe, 612. 9. Semble, That the provisions of the law as to how voters are to be entered on the voters' list in respect to their property, ;and as to the man- ner in which they are to vote, are directory. Prescott, 780. VOTING BY BALLOT.— One B., a voter who could neither read nor write, came into a, polling booth, and in the presence of the deputy returning officer asked for one not present to give him instructions how to mark his ballot. The de- puty returning officer gave the voter a ballot paper, who then stated he wished to vote for the respond- ent. One W., an agent of the re- spondent, in the polling booth, took the pencil and marked the ballot as the voter wished, and the voter then handed it to the deputy returning officer. No declaration of inability to read or write was made by the voter. Held, that no one but the deputy returning officer was authorized to mark a voter's ballot, or to interfere with or ques- tion a voter as to his vote ; and the deputy returning officer permitting the agent of a candidate to become acquainted with the name of the candidate for whom the voter de- sired to vote, violated the duty im- posed on him to conceal from all persons the mode of voting, and to maintain the secrecy of the pro- ceedings. Halton, 283. See also pp. 500, 519, 531, 671, 725, 780. WEIGHT OF EVIDENCE.— See pp. 8, 97, 187, 556, 579. WITNESSES OUT OF COURT.— ^ee p. 243.