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7
REPORTS
OP
ELECTION CASES
By THOMAS HODOINS. Q. C.
PROVINCIAL ELECTIONS, 1875,
lender "The Election Law of i878^ (32 Vic., c. 21), " Tlie
Controverted Elections Act, 1871" (24 Vic e 3) "The
f^'T'Jff ^*^^" ^^^ ^^'■' "• ^)' " Th^ ^llo't Act of
;* r" ^ l"^" '• ^>' ""^ "^" ^"^ >»•''•«• to amend
the Lam affectvng Elections of Mtmbcra of the Legislative
Assembly, and the Trial of such Elections" (38 Vie c 9
"^.AJRrc III.
PROVINCIAL ELECTIONS, 1879,
Under Revised Statutes of Ontario, chapters 10 and 11 "The
Voters' Lists Finality Act, 1878" (41 Vic, c. 21), ard
Jln^c< to makefurtlier provisions respecting Elections of
Members of the Legislative Assembly" (43 Vie., c. 4, of
TORONTO:
CARSWELL & COMPANY.
1889.
HUV
A
mmmm. umuan |
CANADA I
1
■x . ■*•
^
f ^
\
..f. ,
i
^''^^•'•J WEST TOKONTO.
I'HOVISCIAL ELK<-r/ONs, is7S.
179
WEST ToliONTO (2).
Bekohe Chief Jistke Dhai-er.
ToRoxT... i:tl,, Uh, ,„„( lull, M„,i isr;
w,„.,.„, A,u,,»,N, /.,,,„„ , ,. ,(„„„„; „^^,^ ,^^_^
The Odtli (.fctioii of 3l> ViV <• -'i ,[.'. .■ ,
t'lecti.,.,; *>'■ '"^ '-"'"'•-'"t "t "Uch caiKlulato,- avoi.lH the
''f;^';;te;'^ni-^-' ';:^;i-:tio„ a..,, ,...„«,. ho«« app«i,u..
Hie elect.".!., wa« .n",-T v .1 '-^"Poixlent fo,- the pu,Vo«eH of
Ii<J"or (whiBkev) i„ Mtle wh ^hJ ' ,""''""«" to him' 8,.l,it„o»«
'v.'th H„oh lH..r;,;„/^.JS"V .u.rdraTu'' ."*^r*' " f'"' '•e".«;.8trat.„g
J".cl.aKe..tthe,.wa8. X ,.k L .?''^ "* t'"^' I"'""'« I''»^e whe.o
">e..t of O..C pa.tioul«r XJ whi .h »^' '"'}''' P'"'V"''-'" ^''' "'« l"""-^!'.
«'veP. it ,li.l J.„t i..te,.a r ;.d le the oib"';' '" ll" *'"^^ '^^"^ ^'
receiver, to whieh i.o refe.e.."e v « , ».l T* J''" P"'-^''«»er or
that the.efo.-e such aue.it t^ fl. ? '•"'*- ';'"-'*<'* '"ferentially : a,„l
«"ch p<.ni„« hou... .t^';*;t^„;i;; 7rr,.iT;r2''''"'' '■'<-'""■•"'«
The petition containe-l the usual chai-.e- to con„„f
•l/n Bethnne and Mr. .V. fr. ffo>,ks for petitioner.
^1/n ^//..^ Bomee aad Mr. E.att for re.spon,lent.
a Jnt'oflh"" " f "' ''"''^^ ^^ '^"'•••"P*^ P'-'^tic- ''J an
agent ot the re,spon<Ient was as follows :
«/tfA>i ^. Macilonell; O— Von «oi^A „
Mr. Bell? A-Yes? O W ""^ ''"'"* ^'^''
j3 *es . y._Are you aware of any li,,uor
180
I'HOVI.NCIAL ELECTION'S.
[a.d.
having iKM-n j,'ivon on polIinK M. or soM .luring tin-
hours ot polling . a.-No ; I hnv. h.-anl vagu. ,e,M.rts.
y.-Nuver n.in.l what you havf heani. except you have
heai.! it Iron. Mr. Bell ; were you present when any
hquor was given ^ A.- Yes ; there was a nwin at thV
polhng place where I .stood; I .11,1 not know his name;
I never .saw hin, before ,„• since ; he gave n.e .some; it
wa.s at the polling place in Sin.ooe Street; it wa.s at son,.,
hour m the morning after the poll opene.l ; I .lo not
know who it was; h.. ha.l only one In^ttle ; I think he
gave It to others. g._|)o y..„ kn.,w any one wh.. got
any ? A.— No ; when the man came up I saw h.' was
somewhat intoxicate.]; I never hear.l himcalle.1 by name
I .0 not know who he was. Q._Did you remonstrate
with him I- A.-Yes ; it wa.s a very col.1 day ; I had l,een
out trom 9 o'clock in the morning t.) this hour, about 11
and It was very cold and st..rmy ; an.l he was very pressing
that I should take some, and at last I .li.l take .some and
others took some ; I have not the slightest i.lea who he
was. Q.— Do you happen to know where he got the
hquor? A.-No. Q—What kind of liquor was it? A -It
was. I think, whiskey. Q.-That was the ..nly liquor you
know of having been given on polling .lay ? A.— It was.
except after the election was over.
Cross-cmmined : Q. -This about the bottle occurred in
the .street ? A-Ye.s. Q.-Was he particular in his
attentions, or .lid 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 thi.s.
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 Richard 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
iH7.y]
W'KST TolloNTO.
181
unknown pc-rson \,y I)„,,I,x. an.l th. thir.1. tl,. tn-at-
•HK ..f Mr. Maclondl l.y an unknown poiHon. It was not
.H«,-v to consi.lor the H.-st and .socon.l cas..s. as th..,v
Mas not s„fhc>,..nt proof of ajri-ncy. The thir.| case, how-
.ver was one which can.e „p for the Hrst tin.e un-K-r the
s Htnte. The (,.Jth section of the Act of iHiiH prohil.ite.I
the keepn.g open of taverns an<I the sah, or ..ivin.r of
spu-.tuous lu.nor .h.rin^. the hours ..f polling, to any ^er-
Act ot IS71. relatn.K to the trial of controvert.-. 1 elections
corrupt practices were .leHne.l t., he hribery. un.lue in-
Huence. an.l .lie^al an.l prohil.ite.I acts in reference to
e actions or any of such ortences. Un.ler that Act the
JMunlle elect..,n trial (««/. p. l;,.,) took place, an.l the
Court ot Queens a-nch onstrne.l the law so that the
JvoH con-upt y •• >vas hel.l to govern the wh..le section.
In the ongnml Ontario Act. treating at n.eetings was a
corrupt practice when done "with intent to promote the
election of acan.li.late. That phm,segoverne.l the whole
section; hut the Legislature ha.l oinitte.! that phrase from
the new Act (3(i Vic. c. 2. .s. 2, with the design of
Ketting ml .>t the .,u.3stion of "intent" altogether.
The manifest policy .,f the law was to stop t' dvintf or
celling ot lu,uoi^ on the polling .lay, whethe. ( ie inLt
were innocent or not. He referre.1 to the Interpretation
Ac . SI V.c, cap. I, .sec. 8. sub-sec. 89. to .show that all
statutes were to be construed in a fai-. large an.l liberal
manner, so as to ensure the attainment of the object of
the Act. The object :,f the pr.,vision 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 pei-son who received the liouor
was as much a violator of the law as he who gave it
Burr. 2o01. It had been argued that while it was an
oftence to receive a bribe it was none to give one ; but
Loi-d Mansfield .said that what it was a crime to take it
was a crime to give ; the two things are recipi-ocal. ' ft
1.S2
PHOVIXCIAL ELECTIONS.
[A.D.
:^^:^rz::;:t'i^f '^?r='-
"''^'''^t:^T::T;iZ''i"''''>^
.K.lfr:;;:t':,';:' '';"''''•• "■'••■;«"■ '■""•» '>■■'
"f tl .. L , . ;,""•■ "»"'."■""■'' """ ""■ i"fnt
x-n.pi.'Mftniu. iia(| iK'vn cni-i'ii'il i>Mf ;., ii • •
«n ■■intent" ? • "' '^"'"•■"l^"! "'i^"- t l,„
AipCw^n.. ^^ L.fT''' ,'"' '.'''"'"■'""I «■«' .l.e
: — ;^___j^^»iijvvas^iat tJie re.spondeut was
(n) Reported lto>„i„ion Klec.tlong.l^TiT;:;;;;^
I
[a.d.
t' li<|Uor he
»"l<l III' ail
also j^uilty
(Ooill.) (ll)
t" a (liNtitic-
tatuto.s dill
'I'spondciit,
ion to tli<>
so lu'ld it
i'ovi.»ti()n of
f.naid that
t a Jiid^'f
|)once ]iad
!<••' J (lit to
202) ; and
vas iiiailu
aiiH'iidfd
I pll'Vl'Ilt
I'l- i»laci's
I'd. Th...
election,
ntciition
instuiicc,
■ an elee-
Id l)u set
ade tilt*
mist 1.U
lat the
ingday
clause
'ttect it
t dirter-
i M'hich
lit was
l>i7:).]
WEST ToRO.NTd.
IH.-}
IHTHonally and l.y his a^.-nts, hef,.,,. durin^r and aft.-r the
H.-ct.on un.lty ofeormpt practicvs, as .letiiied l.y the Con-
mvert^Ml Elections Act of I,S71 and the Khrtions Act of
iHJ.i. wheiehy the naid election had hecoine void Mr
Bethune opened the cane very l.,ieriy, statin^, that it w«h
nuiM.as.l,h. lor h.ni to explain what pa.tieular facts he
expected to prove l.y the diHeient «itnesses he shonid
c-all Ihey all. or nearly all, l.eloncr,.d to the opposite
party and ,t would have l„.,.„ nseless to apply t!, the,.,
tor .n on„at,on. He eonid only say that he'hoped to
pmve that there wei-e c..,Tnpt p.actices. as deHned l.v the
sU ute. and that they were co„„,.itte.l l.y or nnde'r the
authonty of the respondent or hy his a^^nts. for whoso
acts. ,„ hi.He ,vspe(.ts, I,,, was answeml.le ; that he fully
expected that he should prove that the .espi.i.dent was
put torwa,.l as a candidate hy the Liheral-Coiiservative
Assoc,at,on ,n the City of To,-onto. on the understanding,
hat he was to l,e put to no expense, and that he placed
>-».Helt in their hands, therel.y constituting all its
n.en.he,-s who took pa.t in the election as his agents and
1" suppo,-tot thisasse,tio„ he ,ead a pa.-t of the respon.l-
onts depos.t,on. The t,ial laste.l pa,-t of two days,
•luring winch Hfty-hve witn.>sses were exai.iine.l. ' I
adjounied rather earlier than I had intended, as there was
one w. ness. whose proUhle inipoi-tance to the petitioner
ad only he. .,• apparent hy the testimony given <luring
the h,>,t day; and I thought it better, undei-standing that
no witnesses would te called for the defence, thivt the
estunony m support of the petition should be completed
betore Mr. Bethune summed up.
At the close of this witness's examination. Mr. Bethune
t'aine i i r/ ?r '''"■*'" "*■ ^'''^'^'y ^'^^ ^''''g'^ther unsns-
tamed and that he -nust rest the case upon the allegation
ottreating. Three cases of treating during the election had
b en pi-oved. Two of them he would not press, as the fact
that the parties who gave the li,,uor were agents of the
respondent was not established ; but he contended that the
case of Mr. John A. Macdonell was different. There was no
1N4
PRnVI.VciAI, EI.EfTlo.VH.
fA.D.
♦'l.wl.id, „.a.l,. tivntinc with i, 1. 1 . ' 'T "• "'*^-
it hI«ow,.,| that tl H- ' "■'•'*'*"•" "» ft '•an.Ii.lah.."
•'"t in t a t ' !" r;'" '""*^7-'-^^-' i" tlu. int.. t
the mitlAec.!:; ; r::^ '7 "-;•«'-'••'• HKai...t
an.l vvasauuitt '?;;'■"''';'' ^''" '"'" "■•^'' "P-".
™.Hf cf l,ril«.,v -I ; , , ^ '"" " >""•"' /'"it
are o„li„„ri|y .,,,1, ,|,„l| ..';"";'""'. '"/'""■"'"■'lii.iks
*« ,..n» J i!ir:';s: «;;;;:;'''»"":■" ^" "■'"'"
pemm within the- lin.its of . ^ '"" ^'"''"^' *" ^"y
penalty of .s|()0 ij. every such cl^e Th ^'""'"' ""''"' *
which was in n,v iu,hL T T'. ^*"*' '^'''* evidence
But in no .such case wJ fh '^'* "^^ ^''""^^^^
fA.D.
*■ lllf H'MjIolKi-
••<! lUl.l .ll-Hiik
iv tl». flection
■ omi^tinj^ tlif
'ftcaiiili.latc,"
1 in the int.iit
\mmm wlio
'iifliT aj^'ainst
k'nvf it; ami,
«n<l drank
•tpiiitiKnis or
»ll WHS opfli,
kiiH siirtieient
' |H'titioiUM',S
'"K'l't uiulor
support the
uof hrilwry
CIV wa.s IK)
»^/<///f/ ffiric
oiiiU'ct tho
liii'li could
as •)ril>erv
aiiiiiu'd to
.section of
»tel, tav»jiji
' or drinks
' <lay ap-
< in which
If,' to any
uHnjT the
. under a
evidence
i at least
violated,
nnectin;.,'
y of his
IM7.V]
W|;sT TOH(».\T().
185
«jjv..t. ;^and for this reason the petitioners c<.unsel ^ave
There remained „„« ,^, ^owver. in which there
as „o .u . de ect, Mr. Maclon. -I was exan.ined. and
."...,u.v.H.al y adnutte.1 hi„.self to In- an a^ent o the
.-lH.r,den tor the purposes of hi. election. He ,.. e in
ev,.l..nce that he was at No. 1 division. St. Patrh-k" War.
..-.theHli..,. Therewasa at the poll' .,11::;
M Snneoe Street, upon the ...treet. w-lH, had a hottle of
lujuor. and w-.o seen.ed to he a little into.xicated. Mr.
Macdonell d,d not know his nan.e. and has not seen hi-
smce, n.,r has he any idea who he wan. The day was cold
tlu. n.an was very pressing,, and Mr. Macdon.df took .sonij
«h.skey Iron. hnn. It was during the hours of p.,||in,.
It wa. cont..nde,l that this avoi.led the election; that
e uld not iH. ,.v.n or sold unless there was a purch, ser
o. a reeeuer; and as l.y the act of receiving, the .nver
was enahled to connnit the ortence. the receiv^- hecune a
P<>rnr,;. rn.nuus. Reference was „.a.le to the dcHnition
ot corrupt practices, in the U Vic. cap. :j, .sec :} and
to the repeal of that deHnition hy m Vic., cap. 2. .s'ec
and the sul.st,tution of another deh-nition in lieu thereof'
which la ter .leHnition n.akcs any violation of the (iOtl
.^0 .on aunng the hou.. of polling a con.pt practice.
ThKs change u. the law does not. however aLt the
question I am calle.l upon to .lecide. Ifc leaves the
pomt untouched whether the wonls " No spirituous
1.MU0.-8 or fermented li,,uors or hinks .shall he .sold
or given make the purchaser or recipient in effect a
seller or g.ver. and as such subject to a penalty of i^UH)
m every such case, for ".sell- or "give" are the only
words in the Act which can he made applicable. It mi.d.'t
have been argued on the part of the respondent withes
umch .sliow ot reason, that the earlier part of the .section
.hows that the Legislature had in view a stringent pre-
ventative to the dangers of having taverns all ot'her
places where liquors are usually .sold kept open durin..
ISO
I'KOVIXCIAL ELECTIO.VS.
fc'iving or le„,n,,„ ,„„„". "'« l>i««lmg action the
■«tu.. in ti,„t i,,'::' „ :,• t™:,;,'':: ''■' ■ . r'° ,"'«"■
I'uni^liing «,„ lc.u,le,- , , Iv ■ ' """"*'' """ '>■
l..-ovi.l„,] f„,. tie 1 *" °, ,'""""•'■• ""•'•'■ """I "'-o
i«titi:i./r„,^ir::ir T. "■"'"*'' '■"'■ ''^' *»
liabli Ti ! ' ^"'^ ^"' ^"«"'J ^^'«uld be similar! V
Act. ,or M thafwti t": l1 ,"f '"' """ "■°'^'' °'' ""^
punishment of onemr Lcula,- «' ? ■V""*'''' '"■■ *<^
«ne, they intenl'^fo t „! el: r' f-y *'«-%
make no reference unle™ nt nt,aTv Z ° T""" ' ""^'
liTth and OSth clauses J , , "I""'""/' ""d wlien.by the
considered that b;;;°a*:,f;''"y *"" ""' "">>•
giverof a bribethl , ? *" P"ni«li>nent of the
of the ..te^er „ t^t ' ""' ""' "" P""'*™"'
to ->»« that th:;!etiS;t:o:~.^trr""
rita"uX^:;LTtlrr'"-*-^^^^^^
.eport to the sLaker S " ^'^'''""- ' *»" "^o
p.^vedtohave£„ tltelT;;"' "'"°'"'' '""'"'»
that there i, no Z: t ",^n it' ^t ""' ^f'""^ '""
have extensively prevailed .7 l f , '"'"P' P"*""""*'
follow the even . TXtl/it'f "'"" °", C*" '■>
' """"' '■'!'"■ --'«.», 1875-6, p. 20.)
[a.d.
be kept shut,
In the 68th
<1 the receiv-
er refrained
1 penalty as
section the
, toinHuence
The Legi's-
ider timt by
(3y had also
sorrowed or
for by the
tion consist
e closing of
»', it appears
?ive a glass
» call upon
J subject to
e similarly
er of these
he present
appears to
)i-ds of the
les for the
distinctly
hich the}-
en, by the
that they
nt of the
nishnient
!oinpelled
t the re-
•eturned ;
ihall also
has been
ion; and
practices
Costs to
3, p. 20.)
1875.]
WELLAXn.
WELLAND (2).
1N7
Before Mr. Justice Gwyxxe.
Wella.vii, 17i/i, jm awl ..'Sth Map, ISTo.
William Buchner, Petitioner, v. James G. Cirrie,
ItesjHtndeut.
Princiiilex iiuidinij a Judiif in ilmdmi Eleiiion Cnnpn—liitlmiilalinti or
QormnwHt »rraiits — Corru/)/ Triatittij — EtUhiKi- as to ojfir ,',/
BnlieH — Dili-iiatfx ton Coiirmtioii, itot A'jitit^ — Aijinii/ ami Sul'i-
Aifiiqi — Corrupt Praifirt- hi/ a tari-rii-bijifr ana liuh-Aijtnl —
3;.' Vk., t:. 31, gn. 01 and IJO ; .HI Vic, c. ;.', n. J.
Before subtenfinK a candi*' to the penalty of distiualitication, the Judge
should fcL. well assurt ;eyoiul 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 interpretations, one innocent and the other
culpable, the Judge is to toke care that 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 cnarged with intimidating Government servants,
during his speech at the nomination of candidates, by threatening to
pi-ocure the removal of all Government servants vho should not vote
for him. or who should vote against him. The evidence showed that,
though m the heat of debate, and when irritated by one U., he used
strong lanuuage, 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 re8))ondent at a
tavern, one of their number was sent some distance to buy oysters for
their own refreshment, of which the parties and othera partook. The
foUowinc day a friend of the respondent treated at a tavern, and not
having change, the respondent gave hiin 25 cents to pay for the treat.
HHd not to be corrupt treating, nor a violation of 36 Vic, c. 2, s. 2.
Where the evidence as to the offer of biil)es was contradictory, and the
parties making charges of bribery appeared to have borne indifferent
characters :
Hehl, that the offer of bribes was not satisfactorily established.
The delegates to a pcilitical convention assembled for the purpose of
selecting a candidate, who never had intercoui-se with the cwididate
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 Ins 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 appointefl B. as a sub agent,
and that the corrupt practices committed by B. as such sub-agent of
the respondent avoided the election.
IHH
PROVINCIAL ELECTIONS.
[a.d
''^^^^P^cl^fZi^i^^^^^^^^^ °^ n« petition and trial.
wlnA costs were to b^Jak by neSwolr flT' "^ ^^^Ppn^ent, pait o
part, each party was onVeredToCar Ws own '""^P^'^^^nt , and as to
Jl^e^petition contained the usual " charges of corrupt
^^r Ja.es A. Miller and Mr. Peter MeCartky for peti-
i^^:..to^nt ""''''"' ""' ''' ""'"^^^''^^ - ^--- for
spomtent and his agents is set forth in the iudcrment
avvvNNE, J.-At the close of the evidenc taCn this
matter the counsel for the petitioner rested his "s upon
a? WhT" "'f /.'^ ^^^^P«"^'-^ ^^^-'^' belL feci
n his Cch rr .'•^^'!-^l-«- by himself personally
on the w!, \n "","""^*^«"- *« '^ Government servant^
on the Uelland Canal; (2) upon the ground of treating
ommencmg at the oyster supper a! WhitemanV 1
upon the ground of bribes offered'as is alleged To Harper
IS intended, was an agent of the respondent- (4) unon
Zizi:^'''' ^f "^"^^ '''^-' ^ ^- ^ien rr
cisea by one Hagar, who, as is contended was an aapnf nf
that hB would it^ hi, employment m bridge-lendeHt
In 1 «; o '.Tv-""'"'"": """"'*'' ™ ™'"- of «-"l
r , a, 1 T , ' '^''- "• ''^ ""^ ^"""'■- Boardman, who,
whltT.t ' ™ "? '«"" "' *« '^Pondent, and for
whose act the respondent is to be held responsib e
oir^ "b" r"'"^^ • ■"'-^' ^'"
LT. A ;■ """ '"' "'"' W<*" to be an honest
eonfl,ct of testimony a, to the existence of these mZr!
wh,eh constitute the offence charged, or if ^Z "2"
^^
[a.d
a petition and trial,
resppndent, part of
spondent ; and as to
I'ges of corrupt
■arthy for peti-
U in person, for
against the re-
judgment.
e taken in this
1 his case upon
Id be unseated,
self personally
inient servants
d of treating,
liteman's; (3)
ed, to Harper,
Hems, who, as
Jnt; (4) upon
ve been exer-
is an agent of
amuel Fraser
ige-tender at
)ondent; and
on of sees. 61
irdman, who,
lent, and for
isible.
'■ imposed by-
Id feel well
ce, that the
Jnsequences,
le an honest
ese matters
lese matters
189
^875.] WELLAND.
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
tnie 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 ordinaiy 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 Im
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 Jiagrantc 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
Whiteman's tavern, and of the treating which took place
190
PHOVIXCIAL ELECTIOXS.
, ,, [a.d.
at the .same tavern nn fV... v n
upon the evuleneeVnVs fil "'"^' ''''' ' "" "^ '>P"-»
"-ti„„. which ha,i "1 hd" 1^^^^^^^ ?""• ."^ ^'^«^' *'-^ ^l-
l-efore the oyster sunn "w ^^^\*'^'"^" « ^^out an hour
tlH^ respondent, an U ' Z^ "T*'"^ '^^ ^ '"^' ^"'^"'^■^ «*'
'•usines,; they n.a, ha e h! , "'T^ '^"^"'^"^^-^ -'^^^^
quarters of an hour to In 'V""u' ""'' '^^^'^"^ *hree-
-^. the, for the^o rr j :i^^^^^^^^ ^'^ ^^ «- -et-
nun.ber to go to Port ^T "^^ P'-««»'-^^' one of their
w«on.eo;ters,:^:,^^ri:::;:^::;r^^^^^
own expense or nf ih "'^*^"P'^ocured,were at their
wo persons „.,,o |„j fo^eri" w*?"" ""' "'' I'-^'P"
to be Wen* „f the rem 1, - > "'"" """ '«^"=™l
»uol,, l,„e who in hi elS™ 'r '"^ *'" P"^'™' "
'.« Wen.,,, partook of hi" . ^™f fP™™'' ™' '» be
others who supplied the,,, r ° ""* '"'P™"» »f the
on the ro«„.^„:- a:;r rr rhi^. t: ^v-^
I"-tiee when me tint' ht frTend: TT " "' ">"""'
the tavern and th,t T ' "^* '™"* »' "l™ at
«.t. did in re respld't"''""""' ' '"""" "' *<> "'P^d-
own, and not raWn" ™ V Car,! "•™' ° '™"^ "' •""
receive from the re p°o„St 7- ! ?«" "'""' '""■■ '>''>
Now, whether or ^ot these Lf "" ' '"/'^ '"'■ *-' "«•
with the eo,Tupt "It 0, ntl.°" '"'' ."""" "'" """"^
question of facftordit '."''"«>'='"S the eleetion, is a
^tanees diseitV n the ^S Th"^7 *" *^ "™-
Justice Blackburn in the a J '""S^S" °' Mr.
is the „„st apprpre';*":?';: to,M- »^ H. ^»>
to adopt it in leadincr ^.Tf , • ' ^ hesitate not
of the'case. I^I s2 • < t' ;"'^'."""" "P^'^ *^'« P-^t
treating and whit is no/ '^'""» ^^** '« ««'™pt
commoLsenseof thrtht^Tr'-'''' ^^'^"^ ^* *'«
tiie thing. There IS an old legal maxim
1875.]
WELLAND.
191
Liter apiecs Juris mmnm uyurin. 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
thaMort, vve should be going to the npices Jnns, and the
result would be summa injuria; therefore, the inc.uiry
must be as to the extent and amount of such cases " To
hold such an amount of treating as is relied upon in this
ease, and given under the circumstances appearing in the
evidence, to bo corruptly given with the intent of inHuenc-
mg 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 l>v
his own account is not a pei-son of the most incorrupt
integrity, is Hatly 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 i"s
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 mV
satisfaction that the bribes which these witnesses allege
to have been offered to them respectively by Hellems
were m fact ever offered to them ; so that it becomes un-
necessary to inquire how far the fact of Hellems havinc.
been upon one or two occasions, or periiaps oftener
specially requested by the respondent to attend at public
mee ings ot the electors for him and in his stead, and
to address the meetings on his behalf, would constitute him
an agent tor all those acts done to promote the respondent's
election, and would render the respondent responsible.
As to the fourth charge. Samuel Fraser and his wife
who make the charge, are contradicted by Hagar, the
person against whom it is made. There is no evidence
lf)2
PROVINCIAL ELECTION'S.
[a.d.
fonvar.) *„ „„«„!!; „ ""■ ""^"'i"" "hid, p„t
i-ty. He .i«7:„"t, ' :.■ t r"t'' °'' "^ «»''-
'")ok containing the naL, nf T. ^''""' ^ canvassing
WelJand appears to^aT.l 1 '"'''" '" *^^ ^«^'" o^
'■^ ''id get into htpJsilr^"'^ ^--
.listinctly swore thit hen T "''' ^PP*^*'"' ^"^ ^^
although'the re^t ent w::;:;t '"VT '' '' ^^-'
Association as the canrLvJ t^u '^^''^ ^'•'' ^^'^ ^^^^nu
accepted the non, S^ar/ ^ t^^^^^^^^^^^
forward by a political «'« ? ^'' * candidate put
'"en.hers of the 1 ^cttf '' ^^ ""^^ '"^ ^^'*' ^'^^^ ^^e
t'-eir hands wL Z t :; ^^'r^.^^ ^^^^^^
benefits of their or Jni J . '''°^ ^""'^^'^ «f the
individual melTo trA f *'^ ^'^'"^"^^ ^^ *^«
i'is agents, for wh^e actf h/sl^uTd '^ " ^^ ^f ^ *'^'"
appears to me that it Jl,! ^''"^^.'^" ^««P«n«^'Je. still it
to hold that ever, d Igat! to a' '""^ ''*°^^'^"'' ^^'^ *'-
the purpose n^ere/of fel ct L' T" ^r '"""'^^^^ ^-
never had anv intercomt d^ .^ ''"^'^^*'' "'"^^^^^ he
candidate, and although he doT '." "'""^"^ "^^'^ ^^e
in any instance or canltdr his^bS 'T'-'"'''
sole particular case wh.VK u , "' "'"'^^'^^ »» the
avoiding the elecL • '' ^^"^''^ ""^ ''^^''^ "?«« in
to mak:hi.n spSb ZT' f ''^ ^^'^^^^^^^ ^ -
could be so held.r:o /lt\lS^^^^^^ 1 " ^^
nomination of the randid„r i , ^5**^ ^PPosed to the
to defeat his etctZ W ! T' '^ *'^ ^^^^^^^
niitted for the I.T ^ ''''^^^ '^'^ «^ hribeiy com-
InshorMntrre^hT'^l"^^^^^^^^^
by the candidat "Led bHh!" 1 *'^ '^^'"^"^^^-
effect of constitutinfeverrm r""-^'r"^'^^^«*^«
n« every member of the convention,
''''' [A.D.
a single vote, unless
makes the chai-ge
it lie canvassed Jiim
ve been one of the
k'ention vvhicJi put
ate of the Reform
>een spoken to by
ictly or indirectlj-
'iiii. A canvassing
ers in the town of
Msession, but how
5t appear, and he
y use of it. Now,
I'd by the Reform'
y, and although he
a candidate put
■ so deal with the
> place himself in
? himself of the
J influence of the
as to make them
^sponsible, still it
•together too far
5n assembled for
ate, although he
lirectly with the
ar to have acted
f. unless in the
relied upon in
tJandidate, so as
ained of. If it
' opposed to the
e majority, able
f bribery com-
ig the election,
he nomination
i^ould have the
iie convention,
1875.]
WELLAND.
19:;
whether a Mupport..r or opposed to the nomination, of
the candi.late selected, his agent, for whose acts the can-
di.late wouhl be responsible. Such a result would be
repugnant to the plainest principles of justice. I cannot
therefore, upon the evidence in this ca.se, arrive at the'
conclusion that Hagar was an agent of the respondent
tor 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 ottence of which Fra.ser and his wife
accuse him, as to which I do not, for this imson. think it
necessary to express an opinion.
There remains to be considered the fiftl- .n-ound of
complaint, for the consideration of which I res°erved my
judgment. That Luther Boardman 1ms been cruilty of
corrupt practices, and has thereby expose.1 himself not
only to the penalty imposed by sec. 66 of S'2 Vic
cap. 2, but alr.0 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 effect 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 Crowlana 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
peraons attending the poll for the purpose of votin.. could
and did, at their free will ^nd pleasure, enter the room
and drink spirituous liquors there kept, and I have no
difficulty m determining that this store-room was kept
accessible in the mannei- in which it was, in order that the
persons attending the poll might so enter it and supply
themselves with drink at their plea,sure. If .such conduct
as is here brought home to Boardman were not pronounce<l
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
1!)4
I'KoVINciAL ELECTIONS.
[a.d.
h».v „,,„„„i ,,„,ii„,, J , * I, ';'r'''"; *-°'""' »i'"
wlii.tlu.r ,„■ „„. tl„.,. „.iii ' ""J »''»" ™tf or
ti.at thi, plam „.',;■""■"' .""■""" "■!«'• k"'™i.«
'■"'.M".,.„,,n; r' . r:,: ' ,'r' "'^' ™«- ""■>•■
»t"'lH..I m i„,.l„i,.tv, t„ vojfo .1, r ''■*" '"'«'" '"
ia.«.. .■.„„..„;;■:: i":::Trt:r *- "-"" "■••
J., iu ti,„ r,„,»l„ „„, .,0 It N s " ,'; ',""' ^«"'-'
I «-.ml.l a,l,l tl.nf unless tl„. „.l, I ' '"">' '"•■' »"•!
tht.p„rp,,sc.„fpro " ," '' ^'"""'"^ Actpa«d fo,-
wopo Of the authority .-iven or l„Z T . ^•™"'' "'"
most «pre,s i,>j„„etfo;:^ " ' ' '" "°''"''"' "' *«
.-pondUe. he ,„„,t l« p™ve,I ^ha^T ,""' "■°"'" >*
an .uthorizi.,1 a-ent P,„n o ' ''^ li"i«el(orby
in B„ardn,an\ a„< s o hav ' ". "«'"'■ ""' "'"'^'^
him, or have p^ feith t , 'r"'°" """^ ""'>
»-^«- [A.D.
ttt-'fl to inHuuncean.l
widtvl electors who
ling their V(»te.s, un-
they shall vote or
and who, knowing
tlTftites for intoxi-
^g the entire day,
I- senses might be
tndidato known to
I'.
vhether or not the
'ther he can claim
•ardman's corrupt
8 or is not to he
so as to make the
i))er.
;ion petitions has
^Iges to be quite
>mon relation of
is said by Grove,
J7. "may be, and
' Act passed for
3s at elections be
e for the acts of
are beyond the
violation of the
>n, to establish
ident would be
' himself or by
to act on his
either through
It, put himself
>on cause with
availed him-
'tly done by a
'he election, or
hini without
1875.]
WELLAND.
195
repudiation. In the Bfrnllo/ erne (1 O'M & H 18^
Blackburn, J., has held that an agent made the oan.lidate
responsible for the acts of a sub-agent as well as the agent
even though the can.li.late did not know and was not-
brought into personal contact with the sub-agent.
I procee.l now to con.si.ler the evidence upo"n which the
(juestion m this ca.se turns.
I I*^PP«ars that a convention of an a.s.sociation 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 then- 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 ahvays acted for the Reform candidate; that it
had always been understood that they were to act for the
had stood for the oounty in former elections, and that
wwri ""'", '" '^'" '" ^^P"*"^*^ *^««« committee.s.
It f W M T^" ^""^'^ ^"'" '^' ^"^"^^*'^' although he
says that Mr. Cume never attended the committee meet-
ings. In former elections a central committee of the
etcZ ^.Tf ^'" "'''^ "^ '"'^*' ^"* ^«"^ -''' «t this
election ; but he was not aware of any reason why there
wa^ no meeting of a central committee on this election.
The custom had been on former occasions for the members
mittees for Mr. Cume to promote his election, and re-
ports were made from the local committees to the Cent.al
Reform Committee.
U
1U6
PROVINCIAL ELECTIONS.
fA.D.
I.A.U.
John H(.n.lor.son, Reevo of CrowUiu.) „
witnoHs, who gave his / ^ ' ' " . "^t mspectahle
'li'« not wish an7c r T '""' '''^" ''^^^''^'f "'«' he
waschainuanof tl>e n .r ' .'^ ^'i;;etio„. say.s that he
for the township o;^(;:;:;:rTht'::r'^
of eight, including, hin.self we.t «I i' '""""*'"^'
the convention which no^lLl^M r^ .t : .r^ '"
a warm .suppo.,..,- of Mr. Currie on f"''*'*
. Upon this election he was .m „, '■""-''■ ^''^'ction.s.
for Mr. Currie L.l tTat ''.r^^'''^*'''' '^"'^ forked
wrote to hi.n ;;piin a ^ i" .'"/""• ""'■ ^^""-'
for the townshlp'rcX't^^^ ''"'""•^ '"^ '"^ '-"''
l.i.s friends to Lrn oXl ^Z jr'"^' ''"" *^^ ^'^^
Currie himself ran.pV-. .) *''''' '"feting. Mr.
To.„ H.nr;irw„ : t rsT^B ' r '-" '■■ "■-
where he wa, ntayi,,. ,,„ ,"';''"»»' B<»'-'l'nanH tavern,
va.,in« book,, wit'h fhrna" : 'l- TZ '" "• " =""•
each, made up by Mr 0,„-,.:„ i • ,7. '"'''' P""'"' in
li.*, which he cuunto rrat'l':: r" f'"""'' ^■"'-•''
book,,. Henderson «„., we^-e "^ . '" ''°°'"- The»e
t" P»t "into «oo:r\'andrt!'rii:,'T*h-"-™
canvassing." He does nnf u «e'ected l,y hini for
that he wL chaiLir hrt^Xf If;; r^ ^-
had canvassed before for hin, tI . f ^««"''^'™)
distributed among the other ". ,^^''^\. '^ ^s Henderson
mitteeof the to^nshirand 7 '* *^'^' ^'^"^«''" ^'-•«-
not. however, a n.::^ X^Z^;:^' ^^^^r"'^"'
was that all were to renn.-^ f 1. """'-^- The mtention
the central commttLortleR!f"'T'' '' '''''' --k to
nation day. but the bt^tsf r'th ^""'^""'^ ^" "-"-
protracted that the centmT . *^.l"^'"'»«tion was so
When Mr. Currie give tt , r"^*t' ^^^* "«t n.eet.
they contained thefol rs iL ^^^ «^"^--' ^e said
the parties would go " L . ^ ' ""'f ^^'"^ ^^ ««« how
in the school section whe " TT 'n ^".^^' ^^™-
Wore the polli, g dav th.I * ^"^ *^^ ®^*"rdav
P " g day there was a meeting of the com'-
^N8- [A.D.
<l,aino.stro,si)t.ctal)Ii.
'» a most caiKli.l
1 tl»u la-lief that lio
be adopted I,y any
It'ction. says timt he
Rffonii Association
'iiiiiiittt'u, consistin^r
:t«"l as (hilfgates to
Curriu, and he was
' former elections.
Nasser, and worked
lown. Mr. Curi-ie
electors to be held
nesting liim to get
lie meeting. Mr.
ch was held in the
>oardman's tavern,
less 10 or 12 can-
voters printed in
>'» printed voters'
in hooks. These
im l,y Mr. Currie
ted hy him for
^1'- Currie kneM'
' he (Henderson)
'ooks Henderson
■he Reform Com-
^e to Boardman,
The intention
•f their work to
siation on nomi-
lination was so
did not meet,
iderson, he said
^'ere to see how
only canvasser
» the Saturday
g of the com*-
1875.]
WELLAND.
197
I
inittee of eight and a few others at Boanhnan'.s. Board-
...an huuHo f was there, and he. as well as others, n.ude a
.vturn of the re.sult of his canva.ss. and stated that there
woul.l l,e a large majority for Mr. Currie in his section
He ma.le a retuin showing a good majority. At this
meetmg arrangements were n.adeas 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
ot the canvass of the township. Boanlmaa. as Mr
Henderson .says, was expected to work like any other
Reformer. Boardn.an did not .say he woul.l attend to
..mgmg up voters, hut he .saw Henderson on the Satunlav
before polling day, and told him that all was right Mr
Currie him,self .says that although he appointed no com^
liuttee specially to act for him, he did ask .some of his
tnends to work for him. He .says that he sent the can-
va.ssing books in parcels to his friends in the different
municipalities. He knew that Henderson was workincr
tor him. and in that capacity he gave him the books, not
as chairman of any committee. He thought the books
would be ot service to his friends, and he gave them to
Henderson at Boardinan's to enable them to advance the
canvass tor him, and to let them see who the voters were
He lett the election, he says, to his friends, and Henderson
had been a friend of his for three yeaiu He appointed
Lit n"'.^*, "'/'"' P°"^"^' P^^«^«= *h« re't were
appointed by the local committees in the re,spective muni-
cipalities. The committee of which John Henderson was
chairman appointed James Henderson, Johns brother
•scrutineer for the poll in the township of Crowland, held
where Boardman re.sided.and on the Sunday before the poll-
mg day John informed the respondent of his appointment
and he approved of it. The respondent .says that he him-
'f despatched the posters for meetings by mail or parcel
Wst. and Boardman .says that the posters for the meeting
at Crowland came to his address. Boardman, in the course
ot his canvas.s, ascertained that a Mr. Brough, althou.rh a
fnend of Mr. Currie'.s, was cro,ss about some slight, ^d he
198
PROVINCIAL EI,EtTI,.Ns.
[a.d.
'"^"•'-' t<. hi.„ f., ,, ; 3,^ '•' '«;•«; ;vl.ieh h.. ha.| was
-'XH.I s,.cti..n in whic I :;' •" l'^ — -•>« tl...
-"' a'tl..,„,,h he ,Ii., l,e ^"^ '" ^'''' ^'"••••i"'^ '-i.alt,
section. I.C ca„vaHH...I all u' T''''' *f" **>"'"«'' tho
•^"•J «''"P. an,l „.a.lc. a TT ^''" '"'"^ *« < ''« ^'' ^ -m
Hen,U...,son of the relu,! ''^^ ""''''' '^ '"*»"> *« Air.
canvas, an, 1 act in th. .s ! " '.''"T'"^'^ ""''-• hin. to
*h«t fu. ,li,l „j •„, Boani ' '"'••'••"*^- reappears
upon the whole' I .„::;:;" r; -^'' -'-agent/an.!.
^vi.Ionee I can arrive at n *^' "-^ ''^'^^ "I"'" thi.
«"eh a ,h^ree of assistance w! "r'"'^'«" ^''an that
- virtue of the selectio: j;:/;;';;'^'-^ '^V Boanhnan
P-'-'n.towho.ntheinteressof h "'" ^'•"•^t^^'o'-tlH'
«<'-! hy John Hen,Jerson in ' '•^^P""''^->fc More con-
b^'half vest.! in hin.Tv ;;\''"" ^V''^ P-- - that
^Pon.lent n.usfcahi,le the contn "'"''"'• "^'^^ *^« '"-
for the nmlpractices of fir' '"'" ''"'' I'^' n-sponsihle
P-tice,s weL co.rn-lf 't ;r-'^'^7^t ^"^•" -'■
«r consent. The ;inl section It' "'' '"'""'^"'^'«
respect is very explicit an,] v "■■• ''"P" - in that
^'uty. in accordance with the Z^lT^T"^- ''y P'^-f"^
oi the evidence, i. therefore to!? *"'' '^^'"P^"^^' to take
'•-Pondent to have b 1 V^'r "" ^^^^"«" «^ ^^^^
reason of corrupt practiest^^.^T',''"^ ^''^^^' ^'^
man, an agent of the rP.spon.J.n. ' !u ^ '"'^"'''' ^''*'■•'-
election, but which corrunt n V ^' P'-^^^otion of his
the said Luther BoaXan wil ^l ""^ ^"""""-» V
or consent of the respondenl ''' '^'"'^ '^^^"'^^^ge
I do further order thnf tu
petitioner the e«t» „f ^ * , 2™"™' i'" W to the
»» mueh of said costs ^21 "^f "" ""'' '"«'• ««Pt
«=! fourth head, of cl2r f *" *= *»"''■ 'Wrd,
-nt e„„„,erated, a, .rSr ,*- "" ,*'» -"y J-C,-
several heads of complaint
■i
On.
wliich hi. hft.| was
i'* t'anvassin/? tl..
••• Currie's }»-],(iU.
go th/ough the
■n»f to iUetn\i'fn
» '"turn to Mr.
"nd a .loul.t that
pondt-nt, and one
Its undtT him to
^^'^t It appeal's
■snl)-a^t.nt, an.l,
that upon thi.w
>«ion than that
rl '>y Boarrhnnn
* a trustworthy
idfjit Were con-
i power in tJiat
. that the re-
l)e responsible
'fe'h «uch nial-
iftl knowledge
ftp- 2, in that
y- % painful
ipelled to take
lection of the
iind void, Uy
'dtiwr Board-
iiotion of his
onmiitted hy
d knowledfe
^ pay to the
trial, except
econd, third,
'■^ 'nyjudg-
'i' complaint
1875.]
m SHELL.
ino
I do o,der that each party do l.ar and pay his ownco.t«.
and e.xoept also so nnu-h uf the said costs as .elate V the
h rst head ot con.plan.t h.-rein above onun.erated, tl.. costs
ot wh.ch I do order that the petitioner do pay to tl c
res|x)ndent. * "^
With his certiHcate to the Speaker of the result of the
nal. the learned Judge reported that Luther Boar.ln.an
us p.oved to have bee,, guilty of co.-n.pt prartices, in
tl s. that be,..g a tave,n-keeper and as such aith.-i.ed to
.S.II .sp,r.tuous and fern.ented li.iuors, he the said .uther
Boa,dman d.d .n v.olation of the p.-ovi^ion of the statute
u tha behalt, keep open his sai.l taven. during'the ours
ot polhng on the day of the election; an.l that he. i ..i„g
an agent ot the .saulJamesUeorge Cunie, did give, fu. .ish
and supply, at a n.eeting of electo.-s assen.bled for ther.ur-
po..e ot vot,ng at one of the polling places at which votes
yre polled m the township of Crowland. at the «a.d
election spirituous and fern.ented lic,uo.-s during the houi^
m which he poll w.s being taken at the stid poll ng
place, to all such persons, electors and others, as werf
de.sirous o partaking of such spirituous and fermented
liquors, and many of who... did partake thereof.
(9 Jmmuxl Legis. Asscm., 187,5-6, p. '>.)
RUSSELL.
Before Chancellor Spkagge.
L'Orj.kval, 3rd ami 4th June, 1875
Robert Ooilvie ct al, PctitioMrs, v. Adam Jacob Baker.
Respondent.
%l^iT:::^t?Jt:ZfZ''!^ '^ ^'"^ ".^P^^^^-*- -^ requested to
fl /. kept l,rta\"er?ope;*o.r JC'^dat***IJ^P"'" °" P""^«
treated there .lurinjr DolliL {^m,« P?- ^ ??y' *"** various personi
theevidericeofS^v fall h»rIH». "•"''' ^"5 *^^ respondent, after
ajjent of the respondeat Ind that IV.T''' "^""'^^ *'"'* ^- ^»« "»>
election. ' ^ *"** "'* ^'^^ ^ere sufficient to avoid the
200
PROVINCIAL ELECTION^
giving^*^^^^^^^^^^ a^ljudicate that the resnnnH . .
film an a^ent for allSZ it V^^.T* * ^''^'t'^eer^XSjl I.''?
tice ih keeping his'L?,!^*'^ "««"*. had been truiltv of !
practice a/oi/ec!"t^h?e7e?ti„r "" P''"-« ^'^^ a^fh^tTZX^,
The petition contained tha , i ,
practices. "^ *^^ "«"al charges of corrupt
f-'^^-^^^ for petitioner
Mr. John O'Connor Or fr. '
«wr, (^.o.^ for respondent.
I he evidence of th
election was avoided wLrfX::"""^ on which the
Michael Fouhert : I keen « fa ,
-y place on the SundaX^r T™ , f " ^^'^^^ "^ ^^
authority to appoint an agent fofh 'T' ^' ^'^"^ '"^
the Sunday and told me^t 1 . ' ^""^ ^^^^ '"^ ^^^ on
Antoine Lamotte and a^ked IZ f f^ ^^'"^ ^ «^"* ^^r
at the poll for Mr. Baker and ^ 1 1 ' T^^' "^^ ^« ^^^^t
all right. The pollintpWe J """"^^^ ^^^ ^^^^^ ^t was
from .y tavern' I^' t^^^et b1^^^
place during the polling day I ^tf f ^ '">" ^' "^^
during the day I think R- J Z ^^""^ ^'^^ forward
and I think ToilferdtJtf^
remember anybody ele T \ ''"""^ *^<^ ^^>^- ^ don't
treated or not, but I may have done 7'"'" "'^^'^^^ ^
Michael McArdle: Was at 9f T t"-
ingday. Was at Fouberr n tb ^ ' ^"^"^'e «" Po""
there; this was between "nd/o'o'TT'" T '"'^'^^
several treats. Foubert tlV t"^' ^^^'^ ^^^re
he treated; seven or etbtTl^rii;:^ ^^ ^--^'^at
agent of the respondent, were s^ffi' ! T''"^"^' ^^« ^^
t^on, and he offered to dolo th. ^^ """^^' ^^^ ^lee-
to explain the personal chief "P^"'^"* *^ ^^ -"-»
^^^-..^.rr accepted this proposition.
'TIONg^
[A.D.
icate that the respondent, by
a scrutineer, had constituted
praciceoftheCourttofcakl
unguilty of a corrupt prac-
day, and that such cofrapt
il charges of corrupt
ident.
ctices on which the
Mr. Baker was at
lection. He gave me
'. and gave me $5 on
'y him. I sent for
would act as agent
■ould see that it was
fc three or four acres
^aker being at my
back and forward .
I, Robillard treated,
the day. I don't
tiember whether I
's Village on poll-
ing ; was treated
Mk. There were
' not know that
-ought out in the
admitted was an
'o avoid the elec-
lent to be called
1875.J
RUSSELL.
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-
mg 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 I followed out my usual
custom."
Spragge, G, said that the evidence had established cor-
rupt practices by an agent, but that no personal charges
agamst the respondent were proven. He had no reason to
believe that bribery or corrupt practices had extensively
prevailed throughout the constituencv. 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
scrutmeer 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 ^/ere 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 that 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 vvav it does A
tavern, and it seems to'hp pv 1 , '"*" &««« ^"^0 a
of course that he shouW^i.^Stt '' 'T " ^ '"^"-
persons were there present «n "P"'*' ^^ whatever
consideredofaxneanLd„?Crl"t" '^ '''^^ «« ^^ -
sequence was the verv vvif ^^''P'^^*^?"- ^he con-
There was not a case^ST^'r" '' ^"*-»P-a"ce.
this evil had not Wd ittjf uT r "' '"" ^'^ ^'^^^
was one which prevailed in In T •" ***'"*^«'^' ^"d it
He thought the pe 1,^ "" P^''*'^ f ^^e country alike,
a-^d to his mind satSSol T ^^'^ ^«^" ^^P^^ined,
and honest «nanner. trLr^' T'' " ^'^ ^'^^^""-"s
that they could not be p7e "sedan . ''^'^ ^ ^'7 properly
oi the respondent. He cTuW nTv" ^"^ ^^'"' *^« ^^^^ence
*he denial that thes7pe"l7 ^^^ ^'^'^^ -
H« did not .say that tlfe denkl 0^?^ ^'"^ ^■^^^'^^^^^ed.
would have relieved the Courl f " ^P^'^'^^^* ^^«««
adjudicating on th. personal chl^ T *^^ "^^^^^^^y of
weight was due to the resno ' ?''' ^' ^'''' ^^ "^"^^^
of the charges as to tl eSt '^ ^T^'^^^^^ of the denial
to himself satisfactory hattrBrr^^ ^'^^ ^* --
■so thoroughly ft.om L per^o^atcr '' ^^^^^ ^""^^^
'«ade against him. These 0^" , ?'^'' *^^* ^^d been
not give effect to except on £? , '''>^^'' *^^ ^^^^ did
and certainly in this ea^e ^^^^^
adduced. Therefore it onlv? "-"'''''' ''"^ "ot been
Speakerthattheelec^i^wt rt-th "^"^^ '^ ''^
they would follow the event '"^^^'"'^ *o costs,
-as p,.ved to have be™ X j ' " f'"''"^' ^""l*''
said election ° ■' "' "°'™P' Practice at the
"'■^''"""'''''■^«^«,1875.e,p.6.,
[A.D.
TIONS.
A man goes into a
'd of him as a matter
It spirits to whatever
iless he does so lie is
disposition. The con-
evil of intemperance,
before him in which
his attention, and it
of the country alike,
had been explained,
^ed, in an ingenuous
: '^^^'^ ^ 3ry properly
'"' after the evidence
'found in the face of
es were established.
>e respondent alone
1 the necessity of
'ut at least as much
idenee of the denial
»st him, and it was
had purged himself
ges that had been
■rges the Court did
isfactory evidence,
ice had not been
to certify to the
th regard to costs,
the result of the
Michael Foubert
?t practice at the
' 1^75.6, p. 6.)
1875.]
CORNWALL.
CORNWALL.
•203
Before Chancellor Spragge.
CoEN'VALL, 81A June, 1875.
John Goodall Snetzinger, Petitioner, v. Alexander
Fraser McIntyre, Respondent.
Briber;/ hy an A gent— A dmksion of Comsfll.
^ r °^n' Jli'' had been frequently fined for drunkenness was canvassed by
C. to vote for the respondent, and was asked by him " how much of
^°pTlfS^*v!'t?uP°"'??"' admitted that C. was an agent of the respond-
ent, and that the evidence was sufficient to avoid the election ^
^agentl tt res^ptXr ^"' "" "'"'""* °^ '^"^'•"P* P^^*-- ">' -
rSLe^^^^^^" contained the usual charges of corrupt
Mr. R A. Harrison, Q.C.. Mr. D. B. Maclennan, and Mr.
Chislwlm, for petitioner.
Mr. J. K. Kerr, and the Hespondent in lyei'son for
respondent. '
The evidence given at the trial was as follows :
Miefmel 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
i'ohce Magistrate, and I know him. I had been fined
several times by him. I paid my fines before the election.
1 did not like it at all. I paid upwards of S5100 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
ieelmg well. I told my son to get up and see who was
there. I was called to come down-staii-s, and .saw Conroy
and another man talking to my son. Conroy produced a
boitle of whiskey. I refused to drink that night, though
they told me to take hold and drink some. Thev urged
IJI
204
PROVINCIAL ELECTIONS.
[a.d.
Pa%. ItoldhirnulnZVy ""''^ '^' ^'^^'y^-
was not made up. He saidVTl T ^°''^^^' ^ "^^ >"ind
. to vote. I told him I rl n rJ "'"^ '^^^ ^^^« ^-ng
He asked me what thev T , ''"^ ""*" *^« "^o'^ing
and I spoke of thetLtv^lr ''. ^^^ "^ ^^^^^^ ^^-
I -id that that coLTyladt^ T '"^ '^ *^^ «-«'
of me for me now to suLrt th V'" '""^'^ ™«y out
fovv much of that rn?;?lt^ tVtt' ^^^^ ^
town until the election was over j toM h r '"' '''^'
rny country yet dishonestly L r u "" ^ "'^^" ^'^^
He replied, Don't vote to ^' '^''"^^ '^^'^ ^" «« now.
-e,and then bid metod 2hr"/''''"* ^^"^"^ *« -«
ti^nes too fond of whiskev ^ P "'"' ^^^ ^ ^^ «««« '
this town., I was fin d for drinT"^ '' I ^otel-keeper in
not say whether he had In . "^ '"'^''^^y- ^e did
not leave town, nor did I ^^^^7 7 «-• I did
was the only time he was with L" '''''• ^^'^
Gross-cxaminecl : No mnn^,r
-"• by any one else. I ZkVS fn '° "" ''^ °™"y
return me some of the «„„ „ """ O^nroy promised to
'o™. I do not beW tn . ™"'''"°" °* -"y '«vW
about twenty yea3e ^ '"'t'r'"- '^'^^ ' ""^
Marel. a year a^.o »d t '"'• ' ■>•"" "™<l here si,. .
wit^t bein, «ned. I ta JT./J- ,'- ^r^:
-Wa-^fred'ttt"^ T "" -- "' '->e
sufficient to void the eleet Ln .71™'' '"' ''"''ence
-Ma^reetohavethirtLtilll*:/--^-
^'■a.rmmafjreedtothis.
airtT;o™;r;v*e!:'K """ "^ **>«' ™m »»
--.,„or4.!:;r;!;rrCiX":d^--
'IONS.
[a.d.
ifusal. ,My son drank
e with the Mclntyre
rx answer, as my mind
now how l^was going
>w until the morning,
put me against them,
•om me by the fines,
too much money out
fe replied, asking me
ake back and leave
'Old him I never left
ould not do so now.
thout coming to see
^nt off. I am some
's a hotel-keeper in
whiskey. He did
y my fines. I did
ore I voted. That
1 to me by Conroy
mroy promised to
ion of my leaving
lar place. I lived
ve lived here sii. a
;irae been fined to
lave been drunk
■ver I can get it
an agent of the
ed this evidence
' the respondent
I void.
iclared void on
but not by the
ledge and con-
1875.]
DUNDAS.
205
i
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 lekrned Judge reported that Robert Conroy was
proved to have been guilty of corrupt practices at the said
election.
(9 Journal Legis. Assetn., 1875-6, p. 6.)
DUNDAS.
Before Chancellor Spragge.
MORRISBURG, 14th, loth and mh June, 1S75.
Simon S. Cook, Petitioner, v. Andrew Broder, Respondent.
Meeting 0/ Electors-Treatmj at-Bribery-Emdence 0/ corrupt offer-
he i^MO^/n ' "'^*'"^ had dispersed, went to a taveTwh re
remark ''R^v^ ^.1 ^'T"' '" the bar-room, to whom he made the
k!,? ' n y^' ^" y°" have something ?" Nothing was then taken •
he dTtreat VTr^'"" °' *^^ f^Ponlent, said he^wodd treat and
tney ^Tayt^trtrat^"""*' ^""^ '""^ ''^^P^^'^-* «-« '"^ ^^e
^hour beSt^e*!t'«rnH '"f ^"^ P?">°«"gthe election had dispersed an
of eleotore '^^'P°"'^^°* went to the tavern, this was not a meeting
'^""s'prite" *'' ^"^'"""^ ^°*' ^ ^^'"•''•» !"•• "=• 4. - i» for<=e i"^
'^t tKf a"„Wp!." 1873.compromised with his creditors for 50 cents
the thne of tL ^l!.\P''°"i!'^'^ ^<? P^^o*" ^'' '^'^^'^'^ in f""- About
elect onssuDJortdth? ^^ "^^"^ °"'f-^ *''° ^^^ ^* *^' *^° Previous
amount '"PP""*''^ ^^^ opposmg candidate, a portion of the promised
He.l, under the circumstances, the payment was not bribery.
Held, that the oflFer was not sufficiently proved.
^fid^atertoTonteft th! ""^Pr ''""*' T *}??, ^^^ "^ the nomination of can-
Wf!!i ,1 "^""t^^t the election, and while the speaking was going on
placJof theTomZr ' ^^ P«™r u^l" *'*^«^'» ""^"^^ the^'stT^tC ^h^
pmce ot the nomination, for which he paid $7 or $8.
election.™^* P™"*'"' ^^ '^ »8""* °^ *h« respondent, which avoided the
206
PROVINCIAL ELECTIONS.
fA.D.
TJie petition set forth th. , ^^'^'
Pmctices. '""'^^ *h« "«uai charges of corrupt
f ■ ^^^^""'^ for petitioner.
rj,^ ^^- ^^"^ for respondent.
^^-^^^^^^^^^^^ ^^-^ion. referred to in
t-t^rcetSaSl^tft/^^^ beena .en^ber of
; total abstainer. In jllCXlT'^y f^^^s. I arn
tJ^« Independent Order of GoTd T ,''^' ^ "^^'"^er of
^^--^ot to touch, taste, or handL 1^'"- ^^'^ ^^^^«« P^^^ge
-me, or cider. It ma/be L ofwr'\"^ ^^'^"^^^ beel-.
b»y or sell, but I don't know T rV ^ "^^'^'"'''^ "«* *«
canvass. We hp,? o " ^^^ '^ot treat durinr, fl.
-iJed by hand bm • J 1?"^ ^ ^^^^ Agricultural U',
J went to Dixoni anVTei" T.?- ^'^^^ ^^« --«ng
recollect seeing GenelljZ^;' ^^^j!^ ^^ ^-r. I donf
not treat then. I went Z V '''°" ' ^^t^l- I did
ba-roon. .as filled "^h ^ "o oT' *^ ^°^^"'«- ^he
to Powell, who was a frLnJo 1 T' '^^^«- ^ «Poke
remark: "Boys, will /oX^lr'^T^ '^^'^ ^ ^^^^ the
you better take somethL^-Sis?^^'"?'' °^' "Hadn't
-as nearly as far from the bar a^ T Z'^' '^^^-o«'"- I
-^ small. After I said thTs there '^'' ^^^ ^««'-
Genesee Empey spoke to ^e and «T/'*^'"^ «^* "P-
a"owed nie to treat-somrTM f ^^^ "^^ ^^ the law
.^h-k^thatldidnotbrv^^ 1^^^ Isaid^I :
/ " do ,t," and I handed Genesee F.'t^ '*• ^' '^'^'
the money to pay for it. iZuZ^y'l '^'^^ """^ *he„
^"' opposite the door of Zlr'"" '^' '"^^^^ ^^ the
f tempt to conceal my .h^iZ ^I'^^'^froom. I did not
^""^ - S4 bill; he gave me bad th '"^ '"'"'^- ' ^^^^
^-« spent. I thi^k oTnesee e!^' '"^^ afterwards" Si
--- He did not accomTanv m'T'Ih"" " ^"^P''^*- «f
Mr. Armstrong. This isX onC • 7' ^ ^"^^ ^^th
the election. ^^ ""^^^ time I treated during
CTIONS.
fA.D.
uaJ
1875.]
charges of corrupt
DUNDAS.
207
Read for respondent,
ction, referred to in
r® ^^^"^ a member of
•or many years. lam
' I was a member of
Mplars, wJiose pledge
pleating liquors, beer,
^he obligation not to
not treat during the
e Agricultural Hall
After the meeting
■e an hour. I don t
ixon's hotel. I did
s to Powell's. The
were there. 1 spoke
Id then I made the
lingr" or. "Hadn't
n the bar-room. I
Id get. The room
IS nothing set up
ed me if the law
t effect. I said, I
dered it. He said.
*y there and then
the money in the
■oora. I did not
™oney. J g^ve
:e afterwards; $1
^ a supporter of
3; I came with
treated during
John Suffel: I live in Mountain, and am a farmer I was
at one time a creditor of Andrew Broder ; it was for six
tubs of butter. It was between $75 and $100. I signed
the composition deed for 50 cents in the $1 This was in
1873. I got part in cash and part by note ; the note was
paici m 1873. I signed the composition deed in May 187.3
I received $10 from A. Broder some time in December, a
short time before Christmas. He paid it to me voluntarily
m full, dollar for dollar. He took a memorandum of it
He took me behind the counter, ami said he wanted to
give me a little on the old score. He was talking about
ho ding meetings in Williamsburg at this time. He did
not ask me to support him. I had not always voted on
8fi7 ; .. had supported Cook in the election of July.
1867. and that of 1871 as well. I did not tell Broder tha
I was going to support him ; I never mentioned it to him
We had not been talking of the payment in full. I am
John Suftel the younger. He owed my father something
and paid him ; so my father says, but I do not know thi^
of my own knowledge. The half of my debt was $35 or
$o0 there would be $20 due me still after the $10 This
was before Christmas. He spoke to me yestely. and
said he was not going to deny it. I voted for Broder
The respondent was also examined on this charge, and
gave explanations of the payment to Suffel and others as
set out in the judgment, and added: "These payments
were made on the understanding that I was to pay my Ha^
bihties and settle in full. These were all amount's beyond
the composition. ^
byt^d'r/''''''''" ^""'^" Morrisburg. and am a joiner
by trade I am a voter. Previous to the election I had a
conversation with Dr. Hickey ; my brother-in-law. Milan
Daley, was m the house at the time. Hickey asked me if
sDok f.Tlf ""J T *' ^""^ "^^' ^ «'^^^' ^'' He then
poke favorably ot Mr. Andrew Broder, and asked me if
1 would support him, saying that if I did they would give
II ivt'mi
208
PHOVINCIAL ELECTIOys.
[a.d.
•ne a good .summer's work H« v^
-ork would be. The converJio 'l ""' ''^ ^^^''^ ^^e
J^-re. (His agency was admitLd' h ' Tt^^ Practitioner
r-pondent). I know Bock^ r^^ ^'- ^^^^''^^^ ^ov the
- *-v days before the eSon TT'.V''''' *"«'-«'"«der
^-ng to vote, and .said that I^^o.AII '•'" ^"" ^« --
he M'ould vote for ^roder l,?} ^^^"^ '* ^' '^ ^^vor if
course in Parliament, and" I flt^^, '^^ception to Cook's
•J'-ged hin. as .strongi; L j l*7^^'^-^»*age of this, and
A. Broder. and I totl h' m h "' ''^'^^ ^« ^"^ «ot know
^- could hear him. Htj^lZT''^ '^ '^" ^'^^^^ -^
vas engaged at work on thit 1 u "'^^^^'^^"^ that if he
had been working for ?„e!>n^^ ^ "'^"^'^ '^o* vote. He
belonging to the Rose "state -Vf '' °"^ '' *^« ^^^u^es
*-ed ^othis. I swear tht 'not *'" '^ "«^ ' -
^vas said about the future woX . """'^ ^^ '"^y ^ind
">ust have invented the sto^ ' ^' '"'"' ^'"^ ^«^ him
yative Association of Dundas """f . °^ ^^' ^^^^'^r-
Morrisburg Branch. J tre " "' '"^ ^^^'^''^^'^^ ^f the
standing a couple of hours fetlin "''"'""*'«" ^ay after
George Casselman asked m'e t^ T^ ««^^' ^^^ tired,
speaking. We went to th b! '"• ^""^' '''' ^^« *hen
7« as far as across the streettZ7 "'"' "^^ ^""^ '*
about 40 or 50 feet separated /t r'"^°"""" P^^^« '
.^«|o and get something" Wnk'^ "''' '^' ^^^^^-^n
^« Farlinger, who ought to be Rp ! ""' '"^^•- " This
h- treat." I did not drink bef ''' n"^ *^" "^"^^^^ *« be
-as drunk before I gotTchan?T.t" ^^"^ »"°«^ ^^iskey
-ven or eight dolla^rf L 2 t . r"^ ' P"' ''^'"-^
^andlorct by name. He Ibll " ^ ^''^"'^ ^"«^ the
paid him just what he asked '? "T"'^ '^' ^™k«- ^
on when I got out. The ^.i ^P^aking was still going
^0- I went to the hot! U.^^^^^^^^^ ^ad go/e be'
The evidence as to 1 •^^"t thmk he returned.
iouei s (wiio was respond-
ECTIONS. r
[A.D.
> flid not say where the
m was out of doors.
^ a medical practitioner
^y Mr. Boultbee for the
tnvassedhimforBroder
asked him how he was
";' *»ke it as a favor if
3k exception to Cook's
advantage of this, and
te said he did not know
be here shortly and
understand that if he
e would not vote. He
at one of the houses
neither he nor I re-
ne word of any kind
' 0^ some one for him
fiber of the Conser-
i President of the
imination day after
^ery cold and tired.
Some one was then
. wliich was full ; it
3 nomination place ;
sked by Casselman
ne one said: "This
id this ought to be
the good whiskey
ak I paid between
1 don't know the
ed the drinks. I
»g was still going
icer had gone be-
ik he returned.
;hat the witness
''bo was respond-
1875.]
DUNDAS.
209
ent's election agent) to promote the election, and is suffi-
ciently set out in the judgment.
Upon the opening of the Court on the next morning
the followmg judgment was given :
Spragge, C.-The first point in Mr. Bethune's amu-
ment was the treating at Dixon's Corners. This trJat
although not direct by respondent, but throucrh the'
instrumentality of Empey, was in substance a tr°eat by
the respondent. This treating wa.s impeached as a corrupt
1«68 and 1873; 2nd, As against the Treating Act, 7
Wilham III., c. 4; and 3rd, As an offence at common law.
In the first place, was this a meeting of the electors
assembled fo- the purpose of promoting the election ? fThe
earned Judge reviewed the facts of the case, showing that
the meeting had dispersed one hour before the respondent
went to the hotel.] There was no adjournment of the
mee ing; no preconcerted arrangement of meeting at the
hotel, but an accidental meeting of a few persons. He
held It was not therefore a meeting of the electors In
he second place, assuming the Treating Act of William
111. to be m force here, was this treating a corrupt act
2>er seJ He referred to the authorities ° to show tL
treating m order to be elected, or for being elected "
Act oT wT ^ 't'tt*^^' ''''• ^' '^^"^*^^ whether the
dec sion oi Chief Justice Hagarty in the Glen^an-^ case
{antejp. 8) m support of his opinion. 3rd, Was ft corrupt
treating at common law.? At first treating was con-
Indl : ■''""' '' t,ribery-bribery by refreshment"
and that a corrupt motive was in the heart of the civer
and the receiver. It is laid down by Rogers (llth'^Ed..
Pli^^nj^^^^tmayb^ whether treating was ever
the part of the sittii^' member ?i^' pTol.SbJi't t^t^•;"'"'^'^> "JS"* ".'hat 'Sing ",1
mittee, a legal ground for avoidi^ the llec«o„ unrii, fi,"".'' '" '^e opinion of the com-
th. Province, heretofore Upper dnX^'l'^TtZ%VecVo7V"ec^^^^^^^^^^ '"'' °'
210
PROVINCIAL ELECTIONS.
an offence at common law Th« t. • ^^^*
-as the thin,Mlonecorn,ptTy //li wVT''"''^^''^" ^•'^•
what the Le.'i8]atur.> ;,:/ , ", " '*^ ^''^ ^'^J^ct of doinir
'"".St look broa2 rrtl. ^ ^'^ *" ^'''^'^'^ ^ The JucJ
whethe.. ie wix r :r rr if ^^^ ^'^^"^' - '«
n>-ativin,. the idea of corrupt nte^t'.T;''^''"''-^ '"
c.rcumstance,s into coasiderlttf h f T '"'^'"^ ^" ^'^^
act of treating ca,„e withinM '' ""*^ ''""«"'«'• ^^is
;rhe payment to Suf^ Tn " b:T':;^"' *'^ ■^^^*"^-
of honor, it having be n p" '.^ , f "P«" as a debt
composition was nfade Saf^^Hh/'r ''^ ^^^^^ «^
and the n.anner in which h '^^]-^'^''' appearance.
W.n above suspicion Th J ^7 " *^"'^"^'^' P^*^-'
cases in which the respondl L r^' """'^'^'' «^ «*her
'"i«es-notablytowonen-t?>. w.'"'" ""' ^^'^ P^o-
ance of ,bribeJy whil it^lt^t * ,^ ^
He ruled that in this also t),^ otherwise have worn.
A.S to the Boc. eat he TnT" T ^"^"^^ '"*-^
something was said aW bli r 1 '' '^' ^^"^^ ^^at
hi« anxiety to get wCk W T "' *'^^' ^^'^^"«' -
He could not thL Dr VeCmaT" '''" "" •"^^'•
as was implied. ' ^ '"*^" ^"^ «"ch promise
of the electors at a ineett" oft. T ? '' ^'' ' '''^'^S
• election. The We ex ef si '''"''*" P^'*^"^^^^
spondent to his brotlr \! ^''''^'' ^^^«» V the re-
largest sense, "w'^t:; r '';'"' '"" ^" ^-^'-* - the
he attached ^C 1 X"w ^'^r -^
with Farlinger as To^ tuiri"^"" ^'''''''''' connection
Matter's position in th Co? /" '^''"'' "^^" '^ '^-
common-sense view of the ev'7 ' ^^^^ciation. The
was an agent. ' '^'^'""^'^ ^«« that Farlinger
Jn conclusion, he acniiiff^ri +u
rupt acts by himself 1 h ^"cspondent of all cor-
J "iinseir, or his agents w^fii u- i ,
?
TIONS.
fA.D.
t"io consideration is
ith the object of doinc-'
^ovhu] i The Judge
^nse of the thing as to
e felt no difficulty in
t; and taking alfthe
(lid not consider this
ling of the statute,
oked upon as a debt
when the deed of
aiacter, appearance.
'»ia evidence, placed
je number of other
arried out his pro-
' act of any appear-
ervvise have worn.
> corrupt intent
to the belief that
Jt that Bo6kus, in
re than was said,
any such promise
•mination he held
it was a treatino-
rs to promote the
given by the re-
an agent in the
fc sub agents; and
>der s connection
rent, than to the
ssociation. The
1 that Farlingei'
lent of all cor-
his knowledge,
the manner in
There was an
nd few persons
1875.]
WEST HASTIN(;S.
211
had bci-n subjected to so searching an t'xaniination as the
respondent had been. He ac(|uitted him and his active
supporters of all corrupt acts. Although he believed Mr.
Fariinger was not actuated by any corrupt motives in
giving the treat at the nomination, still the act was one
which came within the meaning of the statute as a cor-
rupt pmctice, and he could not overlook it. In ccmse-
quence of that act, and that alone, he was compelled to
void the election.
The learned Judge certified to the Speaker that tlie
election was void, and reported that no person was proved
to have been guilty of coiTupt practices.
(U Jonrnal Legis. Assem., lS7.')-(i, p. 7.)
WEST HASTINGS.
Before Chancellor SpuAciGE.
Belleville, I7lh nml ISth May, 1875.
Elisha Wesley, Pditioncr, v. Thomas Wills, Respondent.
Paumut of Election Rrpnm.s h,, th. Camndate~Corru,,t Pnutkex-M-m-
bfrx Onth-~H0 Vv:, c. ..', .<,. 7-lJ ; 38 V,,:, c. S, h. li.
'^^'lti}\ •^^'i':-:,''- 2> 8s- "-12, recjuires all election expenses of candidates
shall be paid through an election agent ; and the Act .S8 Vic c 3 s 6
ro-iuires the member-elect to swear that he had not paid and will not
pay election expenses except throngh an agent, and that he "has ot
teen guilty of any otiier corrupt practice in respect of the said elecUo ''
^^T2Z:S^'''' "' therespom^ent personally. 'ivX'iot
Hf'ld, that such payments were not corrupt practices.
Held, th.-it the words "otiicr corrupt practices" in the member's oath
meant "any corrupt practice.'' -"t- mem oer s oath
The petition contained the usual allegations as to
corrupt practices.
3fr. Bcthune- and Mr. Clutc for petitioner.
Mr. Wallbridffe, Q.C., and Mr.'S.J. Bull, for respondent.
The facts of the case are .set out in the iudo'ment
15 J n •
212
J'K(»VIN(;|,u, EI,KCTlON.S.
[a.d.
Iiii
Mr yy«/W conte,ul.,l that s.,.. 7 of tlu, Act of 1H7H
3« V,c.. c. 2, ahsolutely fopf.,,!. any payn.ent of docti on
.•xp.n....s except th,-o.„I. an a,..nt. anil n.a,,. Jfc a co,^tt
act He refem..! to the Cnsl.rl ,„.■ (, o'M. & hThS
and the Pmri/n mse {llnd. VM). '
Mr. WnUWid!,e, for the respondent, conten.le.i that no
n.an couhl be ound guilty of a corrupt act un s t
Htatute expressly .leelared that the doinc. „f a cla n
act should he corrupt, and ,... statute had r^ o led! t "
As to the payn.ent to the son. the n.onev had noM.
pa.d and the n.oney therefore ...nained tl. . ^ ^If
i\n~ fa ter .n the hands of the son. and was unappr j ted
ri. other payn.ent was hefo.-e the no...inat ,n\.t tl.^
respondent as a candidate.
SnuooE. C, said that the tec-hnical points raised by
he pe ,t.o..er nar..owed then.selves into two cases Lsf
hat a hall ha.l been hired by the respondent pre Jious t o
he no..nnat.on, which had been used by hi, . an ulat
ho had paid for it without n.akin-^ the pav nf7 ,
an expense a,ent; and secondly. S.^t^H^X'^S
given su.ne .^4 to his son, a lad unde,. a.^e i,. o,!- h.Vt
hin.^ an ac^oinin, village on ..sin.:s'r:i:r:^^
the elec .on subsequent to the non.ination. The son
appeared f.-o... the evidence, harl not appropriated b
money to that object, and the agent of the es 3 " \
.sub,se,iuently paid for the horse hire in th.
quired by the Act. There was an ^^i: ^^^^^
m these ol.ections; they M-ere technical in t^^e stri te
•sense ot the ter.n. and should, considering I ^e ,cl
•stances, be met by the most technical c.'iticrsn of f a .'
Itself. The que.stion to be considered wa X tl ' f
constitute a corrupt practice ? A de«n tion of " I
Vic. c. ^^■::J'^:t:^zz:^^ ^^ -
practices were defined as n.eaning " bribe - ■ tVeT "• "^
etc.; under. 40. ..personation;- "under si; ..;:::S.
[a.d.
> Act of lH7'.i,
-'lit of election
I« it n corrupt
M. iV H. 288)
'Hfloil tliat no
ict unlcsH the
of a ctM'tniii
>t MO (leclarucl.
had not been
• property of
iippropriatefl.
ation of the
its raised by
• cases : first,
t previous to
iin, ami tliat
iiint throuirli
pondent liad
)ider to take
neeted with
Tlie son, it
priated the
)ondent liad
manner re-
Jce of merit
;lio strictest
'he circum-
of the Act
i tliese acts
of corrupt
1 Elections
by the 36
ct, corrupt
' treatinir,"
' providing
1875.]
WEST HASTINOS.
213
'iitertaininent: " under s.(J4. "hiring of teams;" and under
V <i(i. ■ k.'epin^r op,.,, of puMie ho„,s,.,s ft„,| jrjving of Ii,,u(,r
d.irin^r pollin^r |,ou,s.' The a,.<„.nent that the .ue.ubei's
oath p,uscribe.l by 38 Vic, c. .'{. s. <{. .e.iuirin^^ the successful
candidate, before taking his seat, to swear that he had not
made and would n..t make any paym.M.t in respect of the
election, because it re.pii.ed that he should also swear that
he ha.l not been guilty of "any oth.-r corrupt practice in
respect of the said election." made the payments mentione<l
<-mrupt practices under the statute, could not be suataine.l
He thought that the oath should rea.l "any," and that
the wonl "other" had crej.t into the Act through inad-
vertence. As to the last item not being in the statement
ot expenses, he di.l not consider that the Cashel case (I
OM. & H. 288) was an autho.ity on this p.nnt. There
the agent had not b.-en m.tiHed of his appointment, nor
was he aware of it until after the election. The can.lidate
had himself paid by cheque all the expeases of the elec-
tion, and some of the .sums given by him having been
approp,.iate.l to corrupt purposes, the respondent was
under the decision of Baron Fitzgerald, made to suffer the
consequences. He did not consider the objections were
sustained, an.l he would overrule them. As to the election
"self there had been an entire failure of proof to .sustain
the charges of corrupt practices; and this election, and
another which he had tried, would teach politicians that
notwithstanding the stringency of the law, it is po.s.sibIe
to have elections so pure and honest that they will stand
the test of the strictest inquiry. The petitioner having
so entirely failed, must bear the consequence in the mattet-
or costs.
(!) Journal Legis. Assem., 1875-6. p. 21.) '
214
PROVINCIAL ELECTIONS.
LONDON.
[a.d.
Before Chancellor Spragge.
London, 31»i to 33rd June, 1876
WILLIAM Jarman, PetU^oner, v. William R Meredith,
licspoiident.
""USX:? t:^, ;,s~- «- -* ...^-r.,.,, ,.„ ,
ayency. ' ^ "'O'" ^—UiarUy not Bribery— Limited
HeU not a contravention of 32 Vic , c. 21 s m
they resided ;" and the respomleS ha 1 nor'*''"'" T^"'« '« ^^ich
meinberofMmhcommittees nor to .^- °°* «"'''" authority to any
ally : ' ""'^ *° »»y canvasser, to canvass gener-
''S m.o"Z?a'lWeTt"o hr '"'^' °' "^'^ ^'-"■'""- for Ward No 2
No «. havinl^ro a^lX t'-^riftLt^^^^ °^ bribe^^ ij War'i
witli h„ute,l autliority to canvasITu Wa,v? v "^o ""'f^' '^'^ '*» ■''g«°t
the respondent coul.l not be mide I alJIf ^^"- n""'^' ""'"^ therefore
K., the agent referred to wh 1 "^ '''' ""'S^'* ''''=*«•
inm moiy to get beer' for whTch'H""^" ™*^'-, '" ^^"^"^ ^o. «. gave
the ,oj, ,.,, 5„„.,^ tol\/?Lrt'oteep thT l^aS' '^ '^^^^'^ ^""'' ^'' ^
/M^ under the circun>8tunces. not an act of bri^bery
P JctLr""^" ^""^^^"^'^ ''- "-^^ «'^-^- Of con.pt
Hr- ■>■ K Km- (or petitionei-
Mr. IMi,u„„, Q,c., an,l Mr. H. Buk„, for «,po„,Ient
ca.Xtr7e«i;uLtr "■' '"^*' *'"-« ''-
ONS.
[a.d.
PRAGGE. >
1875.
LiAM R Meredith,
upt intent— Treatinr/ in a
■tti/ not Bribenj—Limited
ern during his canvass is
s.
I, on the clay of election,
which was opposite the
ng or soon after polling
r in poor circumstances
at It was given out of
■polling by a friend, but
the election :
;heir candidate, divided
.rticular wards in which
^iven authority to any
isser, to canvass gener-
niittee for Ward No. 2,
act of bribery in Ward
ter ward, was an agent
• 2 only, and therefore
alleged acts,
r in Ward No. 6, gave
d a lesser sum, and as
larges of corrupt
for respondent.
lets affecting the
case, which was
leredith-Durand
; he is a carpen-
s?
1875.] LONDON. 215
tur by trade. He was canvassed on the Saturday evenino-
before the polling. I don't know the gentleman's name
who asked my husband's vote. I was standing at the door
when he was passing, and he asked me if my husband was
going to vote ; he said he would make it all right with me
if I would get my husband to support Mr. Meredith. I
said I would do all in my power. He returned a couple of
times that evening, pretty late ; when he came the second
time I had not then seen my husband. He went in and
talked to my husband ; I also went in and told my hus-
band to give Mr. Meredith his vote, as he had always been
on that side. He said he had not determined how he
would vote. The canvasser told me to send my husband
to his house on Monday morning, and my husband went
there ; I saw the two together. There was an ofter of
money to me by this gentleman. He took some money
out of his trousers' pocket, and said he would make it all
right if I would get my husband to vote right. I got no
money except some to pay for some beer ; he gave me a
oOc. piece. I got a quart of beer; it cost ten cents.
He asked my husband if he would not like a glass of beer.
My husband took the money and returned with the beer.
He told my husband to put the change in his pocket, and
he did so. He afterwards gave my husband 25 cents to
get another quart ; this was a couple of hours afterwards.
He told him to put the change over in his pocket. The
gentleman never " made it all right with me " after. I
told my husband that this gentleman would make it all
right with me.
Gross-examined : No sum was named ; nothing was pro-
mised definitely. I never got anything; nothing was
ever asked for.
Re-examined : The person said he " would make it all
right," and he held the money out in his hand.
Walter Woolstan : I am the husband of the last witness.
I was not canvassed for Mr. Meredith, except that I was
asked by one gentleman to vote for him, either on the
Friday or Saturday, in the evening. The person who
216
PROVINCIAL ELECTIONS.
asked me is a cab-driver Pi.. "
he lived near wher tin , ,''"^"'^*^^>^ '^ ^^^ »a,„e •
-d asked „.e ; J: 1^"^::^^ ^^^ -- to my house'
When he first asked me I told h r JT" "^ *^'« «hop.
how I would go. He offered ^o "in "'* '^^^™^-'
came several times in the n 'h" '"f T'"* '^ "'^- »-
was after supper. I had been at a ' . "' """^ ^^ ««'"«
"^ere quite a while. We had ,0, T'*'"^ ' ^' ''""'^^^^^l
f eightley, furnished the molVT -n"'' '" ' «"«* ^*' ^ut he,
to get the beer, and I .ot « T^'. ; '• P''""- ^e told me
fifteen cents ; we d antt betT ' '" "'^^^ ^ P^^ ^- o
about the election while drinl'" ""'■ ^^ ^'^^^ talkin.
*he change, and I Ztl ft " "^^ "f^ '^''' '»« to kee;
f ve me some more tne/r "^^>i ^^ ^*'*™rd!
beer. I only had to go o tie n. f. ' ''''''^''' '^"PP'^ of
fat too. , He was ther fl'^e ti"" r" '' ' "^ '^^^^
for It the second time. IrememTrfr' ^ ^"^^ *^" «^"ts
he told me to keen that Tn,,''" ^^'''^^n^e chancre-
-e a drink in the'mt w' ' H ""' '' ™^^ ^'« ^^ ^^
M-edith. He went awat ^f ! T' "^ *« ^^^ ^o^'
"•e to vote for Mr. Meredfth ,h -f ^'^ ^^ ^'^^^ a«ked
f-S to give her a p: set f I'l?' l^'' "^"*^^'"- --
there before I saw h^m the first It T ^''' «^ ^^^
a time the last time. J accom n^^ . u" '"""^"^^ ^"ite
he was leaving. He said n 2 t?' '"" /^ *^^ ^'-^ as
"ft ; I heard nothing mot f d^' 7'^' *^'^^P* -"««^-
wife money. She told meTsh. "'* '"" ^''^ ««"«»• '"y
or Mr. Meredith. On M 'nd "T" "T ^'^ """^^' -*'
house, in the morning-the noJlfn T"* '" ^eightley's
posed I would vote aH right not^^ T "^^ '''"^ ''' ^i'
to the polling-place. WetlveT"^ '"'""'"• ^^ --t
three others in the hack but ht'' " ' ^^^ ' *here were
I -agine they were ei;etors [ ""! ^''"^"'^ *° '"^ =
booth and voted. I remain T / '"* '"*« *he polling
-me time and then ;:Xi^\7;he Po«ing plfee fof
'IONS.
[a.d.
^eightleyishisname;
; he came to my house'
^he room off the shop.
i had not determined
iducement to me. He
'he first time he came
"eeting; he remained
l^eer; I got it, but he,
Oc. piece. He told mj
r which I paid ten or
s. M^e were talkinrr
He told me to keep
?b'- He afterwards
1 further supply of
ise for it ; we drank
'e ; I paid ten cents
i-e was some change;
' it would do to get
red me to vote for
-e. My M'ife asked
this gentleman was
Jiatway. He was
He remained quite
im to the door as
wife except good-
t see him offer my
le she would vote
»t to Keightley's
He said he sup-
rther. We went
cab ; there were
strangers to me ;
into the polling
polling place for
ince received no
Keightley, and
^^- We talked
I to my wife he
1875.]
LONDON.
217
He said there was a protest
would make it all right,
entered now.
Cross-cmmined : This gentleman never held out any
inducement to me, and I never saw him talking to my
wife, and -did not see him putting his hand in his pocket.
I remember his leaving the house the last time. I have
no recollection of seeing him put his hand in his pocket ;
all the money I got was what he gave me for the beer.
RoUrt Keighthjj : I remember the Meredith -Durand
election ; I took part in it. I was on the cominittee for
Ward No. 2. I attended some of the meetings. I asked
some voters to vote for Mr Meredith. I may have re-
ported some of them to the committee. I took some
voters to the poll on election day ; I also took Mr. Wool-
ston. I had asked him to vote for Mr. Meredith some few
nights before. I canvassed him in his own place. I .saw
his wife and told her what I wanted ; I asked her to try
and get her husband to vote for Mr. Meredith ; she said
she would. I did not .say I would make it all right; I
deny emphatically that I held out any inducement directly
or indirectly. We had something to drink ; I think it
was beer. I proposed we should have it, and gave the
money, 50 cents, to get it; the husband and I drank it
I takmg but little ; his wife may have taken some. I do
not recollect beer being got a second time that night ; my
impression is there was none. We were talking con-
siderable about the election. My object in going" there
was to get his vote. When I sent for the beer my object
was to talk matters over pleasantly about the election I
voted in division four in No. 2 Ward, and canvassed
there principally. He voted in No. G Ward. A canvasser
told me he did not know where Woolston lived, ani that
led me to go there. I may have canvassed in No. 3, but
I cannot recollect. I canvassed wherever I saw people.
Cross-examined: Woolston's vote was in No. 6 Ward
but he lived in No. 2 Ward, having inoved there before.'
His name was not on my book for canvassing. I got no
change for the 50 cents; they were pleading such poverty,
218
PROVWCIAL ELECTIONS.
[a.d.
'!• :'i';i
I thought it M'ould be harrJ f« . i ,
O-n't think .,e ch.„; trofcrlLt' '"^ "'■"«^- '
-At the cIo<jA r>+' +1,
>v.s delivered : ''''y *" '<'"''»'«« j-dgment
Spraqge, C said • Th
• msted by Mr.' Kerr' on th^Mlir''' '"'^ ^"^ ^^^^'^^^'^^
the treating at the Revere L ' T' ^"*«hard's case,
^, The charge of tx^atTn" a^the 7' ''' ''^^°'^'«" --
there.spondenthi,„.self h:d inbi ™ ""^"^^ ^»"^'««t
^t was not treating of the .1 r^'"'""' '^^ ^'^""^^^i"" ;
^ith corrupt motivls ''^''■•^" °°'- ^^« ^^ ^''eating
As to Mr. Mccormick's -ase ■ MnP •,
porter of the respondent atd ^f "^''"^^ was a sup-
^iw^lling* house was opp!;i;e o "'^ ^.^''"^""ttee. His
and at a late hour of poC 1^ t ''' P°"'"-^ P^-«««'
«nished, the witness sa7d hf a td " "'"''? '^^ ^-"
of his friends to go over to hirK "" ^^ ^^'"^ «»" four
«ome beer, and also e derberr. "'" ^" '^' *^W« -^s
the parties partook of Ittr^' '7^^ ""^ ^^es, which
controvention of section e6cTZ7ft'\'' *''^ ^^^ ^
that it was so; and believed th!/.. 1' ^' ^^^ ^«* ^^^^^^k
stated, that a number of Mr '^ '^t*'^* '^^ "^^--
amongst those whom he invitP.. '^ ' ^"'"^'^ ^^^e
corrupt influences were in elde'' T ^ ''T' ''''' "«
corrupt practices had been prov''in!his^^^'' that no
The next case was what w^It '^''■
case. In it there hadll ''''''' ^' ^^e Pinkham
<ience; but he tWht hrcnf.T'^^ ^^"«^«* «^ -"
of what took place ^s the on '^''' ^^"^"'« -««^ount
Brown, who was an alde^l '"''' "^^^^ *« ^e correct.
There was the evilte Tpi T? ''''^^' "^^'^ bribery,
the respondent in addition ^tr. "'"' ^^^^^^^"^ for
-te he had made of t^ :lT ^^"^^- ^^ the
active man, and was acth^l ZVlJ'''''''^^ ^^« ^n
witness Brown was an ?. "^^^^ °*" ^"^^nd. The
and appeared to be a trutS 'r^Tt ^' ^^^^^^h'
"' nian. It appeared that
CTIONs.
fA.D.
ke back the change. I
J to me.
of counsel the Court
he following judgment
r's case was yesterday
case, Pritchard's case
-nd the VVoolston case'
Severe House against
3inion, no foundation ;
'. nor was it treating
Cormick was a sup-
lis committee. His
■ the lulling places,
he polling had been
two or three or foui-
• On the table was
3 and cakes, which
ided that this was a
■ He did not think
act that the witness
md's friends were
« a proof that no
e decided that no
his cuse.
n as the Pinkham
Jle conflict of evi-
Brown's account
kely to be correct,
ged with bribery,
nd Trainham for
Jrown. Now the
'rainham was an
>f Durand. The
er of Meredith,
t appeared that
1875.]
LONDON.
219
Pinkham had always supported respondent, and this was
proved without any doubt. He had gone to vote, but
hesitated, as he said, because Alderman Brown had
promised to give him half a cord of wood if he voted for
the other side. This appeared to be the only obstacle,
and if what Trainham had deposed to were true, then it
would be a clear case of bribery. But a different version
is given to the story by Brown, who says, that when
Pinkham stated his difficulty, he said, " Go in and vote
like a man ; and if you are really in want, the city will
relieve you. If you are really in want, I will give you
sufficient to keep you from starving." Now, it had
been proved that Pinkham was in bad circumstances;
he had got wood from the city before ; and it had also
been proved that Brown had relieved him before, and
was in the habit of relieving others. Trainham "s mode
of getting information was not to be commended ; and
he obtained what information he did get at a disadvan-
tage. Mr. Justice O'Brien in the Yoicffhal cmc (1 O'M. &
H. 294), held that where it had been proven that money
was given in charity, it could not be regarded as bribery,
and this appeared to be one of a similar nature. Brown
having stated on his oath, and he had no reason to dis-
believe him, that he gave this wood to Pinkham out of
charity, he therefore decided that no bribery had taken
place.
With reference to the case of Mills, who was bailed out
of jail by Woo.,, it appeared that the witness. Mills, was
a particular friend of Woods ; and the latter, on his oath,
had stated that he did not belong to Meredith's com-
mittee, and did not even know that Mills had a vote.
He preferred to regard the case in that light, and that
Woods bailed Mills out as a friend, and not with the
view of getting him to vote for the respondent.
But the case on which Mr. Kerr mainly relied was that
known by the name of the Woolston case. As to that,
there were two questions of fact : The first i-j the ques-
tion of agency. When that question was brought before
! I
111
I
?
Ill
220
PROVINCIAL ELECTIONS.
[A.D.
him l,y Mr. Kerr, he had expressed his opiniorr on it, and
he liad not any reason to alter that opinion. As to the
contention of Mr. Kerr, that all the members of the Liberal-
Conservative Association were agents of Mr. Meredith, he
was not prepared to accede to this; it rested mainly on
that association bringing out Mr. Meredith. He was the
gentleman of their nomination, or, as it had been said
m evidence, " the standard-bearer of the party " That
party decided to bring him out at a general meeting-a
mass meeting-which was called, and Mr. Meredith ac-
cepted the .nomination. At that meeting those present
broke up into knots, the different sections choosing the
representatives for the wards in which they were voters.
As soon as that was done the functions of the Con-
servative Association were at an end, and a new arrange-
ment entered upon. He thought they mightas well say
that it a requisition to a man to become a candidate was
signed by 100 or 200 electois, the act of signing it
constituted them his agents, as that the Conservative
Association were so because they brought out Mr. Mere-
dith. It was clearly explained to the committees then
formed to promote the respondent's election, that they
were to look after voters in the particular wards in which
they resided ; they had no right to canvass in any other
ward The principle of agency might have been estab-
lished it authority from Mr. Meredith had been given to
any canvasser to canvass generally; then he would have
been canvassing under Mr. Meredith's sanction, and the
respondent would have to be responsible for the acts of
such canvasser. This authority does not appear to have
been granted in this particular case. The person charged
with having bribed Woolston is a man named Keightlev
who lived in No. 2 Ward, whilst the person Woolston
lived in No. 6 Ward. The committee for the ward in which
Woo ston lived dealt with that man, and the respondent
could not be made responsible for Keightley's act.seeing he
had no authority from the respondent to canvass out of the
ward m which he was appointed. It had been maintained
I
'• [a.d.
opinion on it, and
inion. As to the
lers of the Liberal-
f Mr. Meredith, he
rested mainly on
lith. He was the
it had been said
he party." That
neral meeting — a
Mr. Meredith ac-
ing those present
ons choosing the
they were voters,
ons of the Con-
d a new arrange-
light as well say
! a candidate was
ct of signing it
ihe Conservative
it out Mr. Mere-
committees then
Jction, that they
r wards in which
ass in any other
ave been estab-
id been given to
L he would have
inction, and the
^e for the acts of
appear to have
i person charged
med Keightley,
erson Woolston
le ward in which
the respondent
y's act, seeing he
-nvass out of the
)een maintained
1875.]
DONDON.
221
that a book had been supplied to Keightley containing all
the names of the electors in the city, but it does not
appear to Lave been such ; it was only a book with the
names in his own ward. Neither did Keightley appear to
have got any general authority from the respondent to
act for him ; the respondent appeared to regard him as a
man of zeal with little discretion, and not a man to be
altogether trusted with his confidence.
Having thus stated liis views with regard 'to agency, he
thought it was unnecessary for him to go into the acts of
bribery said to have been used on the occasion of inducing
Woolston to give his vote. There was a conflict of evidence,
and each party had given their own account. He preferred
to accept the evidence of the witness Keightley himself,
and to hold, as in the case of Pinkham, that the change re-
ceived for the beer was given as charity, and, therefore, that
Woolston was not bribed. The promise of money to Mrs.
Woolston would have been an act of bribery had it been
sufficiently proved. The act on Keightley 's part (as
stated by himself) he held to be a suspicious act— a most
dangerous act— and showed a good deal of impropriety on
his part ; but it had not, in his opinion, been sufficiently
proved to constitute an act of bribery for which a can-
didate could be made responsible.
With reference to the law as applicable to treating and
bribery, he said it had been much needed in the land, and
past experience showed it had been much needed in the
city of London. There were in all communities some
electors who were apt to be corrupted. Some we'? apt
to be corrupted by drink, and there were others— and
perhaps they were more in number— who would sell their
votes for gain; for this reason, a strict and stringent
election law was required, and he disagreed with those
judges who held otherwise. The determination of Mr.
Meredith was that he would rather stay at home than be
returned corruptly, and the result of this inquiry had
shown that he had not been returned corruptly. He was
thus enabled to form a very different opinion of the city
222
PROVINCIAL ELECTIONS.
[a.d.
ot Lotulon from that stated by his brother Hagartv at
he last trial. The present inquiry had shown him that
there could be an election conducted on honest and pure
pnnciplas. '
The i)articulars contained charges of bribery and cor-
mption against the respondent and a large number of his
supporters which there was not a tittle of evidence to
prove. There may be an excuse for this partly from the
ta.. tJ. ^t such charges had been made at a former election
anrl p^, ly because there are charges in the particulars
>^ Mch those that got them up only expected to prove
/'US cours. wa^ not justifiable, because the particulars
CG>. .. .mended at any time before the trial ; and those
who got up the bill of particulars ought to have been
much more careful in doing so ; these charges were not
only not proven, but entirely disproven. He concluded
by congratulating Mr. Meredith upon having come out of
the election with his hands clean. The result was that
the petition be dismissed and the respondent found dulv
elected ; the petitioner to pay costs.
(9 Journal Legis. Assevi., 1875-6, p. 22.)
^^S- [A.D.
brother Hagarfcy at
lad shown him that
in honest and pure
'f bribery and cor-
large number of his
ttle of evidence to
his partly from the
it a former election
in the particulars
expected to prove,
ise the particulars
he trial ; and those
ight to have been
charges were not
en. He concluded
laving come out of
e result was that
•ndent found duly
., 1875-6, p, 22.)
1875.]
WEST ELGIN.
WEST ELGIN.
223
3
Before Chief Justice Draper.
Toronto, Wth and 17th April, 1S75.
John Cascaden, Petitioner, v. Malcolm G. Munroe,
Mespondent.
Pracl'ce—Partkulars for wrtUiny—TKnilfral votm— Corrupt practki's—
BalhU and counterfoils— 7th General Rule in Election Canes.
When the petition claimed the seat for thn UDHuccejsful candidate on tha
grounds that (1) illegal votes and (2) ii .,,roperly marked ballots were
received in favor of the successful candidate ; that (3) good votes and
(4) properly marked ballots for the unsuccessful candidate were
improperly refused ; and that (5) the successful candi.late and his
agents were guilty of corrupt practices, and particulars of all such
votes and ballots and corrupt practices were asked from the petitioner.
Held, 1. As to the illegal votes, thai the 7th General Rule prescribed the
parti" ulars of objected votes to be given, and the time of tiling and
delivenng the same, and a special order was not therefore necessary.
2. As to the improperly marked ballots and improperly rejected ballots,
the petitioner not having information respecting them, could not be
ordered to deliver particulars of the same.
Particulars were ordered of the names, address, abode and addition
of persons having good votes, whose votes were improperly rejected
. at the polls ; and particulars of the corrupt practices charged by
the petitioner against the respondent and his agents.
Heal V. Smith, L. R. 4 C.P. 145 ( Westminster case), followed.
The petition in this case contained the usual charges
of corrupt practices ; and alleged that illegal votes and
improperly marked ballots had been received and counted
in favor of the respondent; and that good votes and
properly marked ballots in favor of his opponent had
been rejected ; and claimed the seat for the unsuccessful
candidate.
After the petition was at issue, a summons was taken ^
out by the respondent, calling for the particulars of the
allegations in the petition. The summons asked for
particulars (1) of the persons not qualified to vote who
had voted for the respondent, and the grounds of their dis-
qualification ; (2) of the votes tendered for his opponent
and rejected ; (3) of the counterfoils and ballots for his
opponent which had been improperly rejected ; (4) of the
counterfoils and ballots improperly received and counted
r
r
5.'
f'l
824
PROVINCIAL ELECTIONS.
[a. I).
but lie contended that a.s the 7th r;,.n,.,.oi p i • ^i^^"^^-
or .-..jectoa vote,, „„ ,p.eia, „,.":«!':» LlrA^
1» tcular, ,„,pBcting the ..allots and counterfoil, tf
pe,t,o„e,- could not «iv„ th. info„„a«n aXd ar^l he"
ballots an,l counterfoil, were in the cu,todv„f tlT «
UK .) o. P. 446, and Mmmlimj v. Ow- 21 W p
627. »howed tha. th. (.allots i„ th4 elecron eaisT^il
only ho mspected unde,' » special order.
Jtft-. ./ A .Sot,^, cimlm, contended that 'it «..» .1.
petitioner'., duty to obtain an inspection of the hi, ^
and to furnish the information asked fo" Id , if 1 1
whrfrc^L*™''''^-'--'--"*'^^^^^^^^
.u.ror.i:ichUrtL.'':™,tt:tfrt"i'''''"-'^°'"
=ra^d':i-:-:;rt:i-i£E?
Munroe,and to have it declared ih^i fi ^'^'^'"^ ^-
the party deiending. the election and the return sha
within a given time deliver to the Clerk of fhl P
and also at the addres.s (if any) Xer bv tl .^''''"'
and the re.spondent (a,s the ^f^ e) tli^^' fX
votes intended to be objected to, a/d of ' th heads o
the objection to each such vote. I .see no reason for a
\\
'"^^^■^- [A.n.
lupt practices charged
ts in the petition.
ler, showed cause, and
i to corrupt practices
oral Rule in Election
elivery of particulars
as necessary. As to
nd counteifoils, the
iiion asked, as all the
istodyof the officers
Js of Stowc V. Jolifi;
V. Oon-y, 21 W. R.
election cases could
r.
that it was the
tion of the ballots,
for; and if he did
from relief on that
ase to dispose of a
Jarticulars ; and in
ball take the sub-
linthepetitionand
f (John Cascaden)
n of Malcolm G.
the unsuccessful
elected, and ought
1 the 7th General
nplaining of, and
the return, shall
■k of the Crown,
t>y the petitioner
t»e), a list of the
of the heads of
no reason for a
1875.]
WEST ELGIN.
22.-.
special order in this case, or for vaiying from the terms
! of tliis Rule. So far I discharge the summons.
2. Particulars are asked for as to parties alleged in the
petition to have had good votes, who intended to vote for
the unsuccessful candidate, whose votes were tendered
and improperly rejected. I think the respondent is en-
titled to their names, address, abode and addition, and I
order accordingly.
3 & 4. Full particulars are asked of the number on the
counterfoil of those ballots, marked, or so marked as to
indicate votes, for the said Thomas Hodgins, improperly
rejected, ami not counted for him at the said election;
and the number on the counterfoil of those liallots which'
were void, and should have been rejected by .rea,son of
i.heir wanting the signature or initials of the Deputy
Returning Officer, and tfie name of .such returning officer-
and of the number on the counterfoil of tho.se parties
voting for more candidates than one, and as havin" a
writing or mark by which the voters could be identiHed
and as unmarked or void under the provisions of the
Ballot Act, an<l speciHc reasons for those otherwi.^se void
and the names, address, abode and addition of the parties
using .such ballots, and which ballots were improperlv
accepted and counted for the sai.l Malcolm G. Munroe as
mentioned in the fourth claase of the petition.
I am bound to a.ssume that the Returning Officer has
done his duty, and therefore has, under the 20th section
ot the Ballot Act returned to the Clerk of the Crown in
Chancery his return, an.l all the documents an.l papers
enumerated in that section, among which are the counter-
toils. It would be useless to make an order on the peti-
tioner to furnish information which I have no reason to
suppose he possesses. The same reason appears to me t..
apply to every item, or nearly so, in this branch of the
summons. A reference to Stowc v. Jo/ if c, L R 9 CP
446 which was mentioned by Mr. Hodgins, would have
probably prevented this part of this summons, which
part I also discharge.
2S6
I'HUVINCIAL ELECTrONS.
'' I
[a.d.
'Ih^ t
.5. It 1. turtlMT ask.Ml that an onier shoul.l issue tV.r full
paruculars ot (., corrupt practices chargo.l.C/,) of bribery
(.) ot treat,nK. and (./) of the nature of the un.lue inHuence.'
m.l ot the parties practising the same, all which are re-
terre.1 to in the tenth clause of the petition ; anrl of the
names, abode ami addition of parties who before, at. ami
<luring the election offered to corrupt and bribe or .nve
or procure advantage to electors to induce them to ^ote
tor respon.lent. or to refrain from voting for the un
■successful candidate; and the names. &c., of the persons
sought to be corrupte.l, and the specific nature of such
corruption, bribery an.l advantage, refer,.! to in the
seventh paragraph of the petition.
There -was a very similar application in the case of
Bad V Snut/, L. R 4 C.P.. 14:,. i„ which Will.s. J., after
consu ation with Martin, B.. a.ll Blackburn, J., o;dered
that the petitioners should, three days before the <Iav
appointed for trial, leave with the Master, and also rrive
the respondent and his agent, particulars in writin ° of
all persons alleged to have been treated, and of all per-
sons alleged to have been unduly influenced; an.l that
no evidence should h. given by the petitioners of any
objection not speeiHed in such particulars, except b'y
leave ot a Judg.., upon such terms (if any) as to amend-
ment, postponement, and payment of costs as might be
CW ;• o "'^'^'ir' ^*"""'' '^'^ application to the
Win "t uT? ^^'^' f'^r the fuller particulars which
NV lies, J had refused to order. I shall make a similar
hall' f' n :r^ '*■ '^' ■^""""«'^«' -^««Pt that I
shall following the usual practice here, make the time
tourteen days instead of three, and will in the same man-
ner di.spose of the application as to the matters char-red
m the paragraphs of the petition referred to.
'«Na [A.D.
•«houl<I ksui' for full
iHrjr('(l,(/>)„fh,.iht'ry,
tlio unduf inHuence,
le, all vvhioh aro re-
H'tition ; and of the
who lu'fojv, at, and
t and hrilif, or I'ivo
iduct' them to vote
voting for the un-
&c., of the persons
itic nature of such
refeiM'd to in the
ion in the case of
ieh Willes, J., after
ckburn, J., ordered
^s before the day
Hter, and also give
lars in writing of
d, and of all per-
uenced; and that
)etitioners of any
2ulars, except by
my) as to amend-
iosts as might be
application to the
particulars which
I make a similar
«, except that I
S make the time
in the same man-
matters charged
J to.
1875.1
WEST ELOIN.
WEST ELGIN.
227
Before Chancellor Si'raqge.
St. Thomas, :^4tk June, ms.
John Cascaden, Petitioner, v. Malcolm O. Munroe,
Bcspondent.
I'HUiiin clitimini/ thf nmt—ficfulinii of roten—Chnmie of dai) of trial—
Withdrawal 0/ rf^immli-nt ^S,(U airarded to thf UMuwi-^ii/id candidate
at election —Crrti/catff Ihi-reon to Speaker.
Where a petition claims the seat for the unsiicoesgful candidate a
scrutiny of votes may be onloreil to he taken in each municipality 'by
the Registrar acting for the .Judge on the rota. '
The Jay appninted for the trial of an election petition may be altered to
an earlier day by cont-ent of the piirties, and by an order of the Judge.
During the scrutiny of votes tiie respondent abandoned the seat to his
opponent, after his opponent had secured a majority of » votes, and
agreed that such should stand as iiis opponent's majority, and that the
Court should declare such opponent duly elected; and the same was
ordered by the Court.
The petition was as stated on p. 223.
The vote at the elfotion was: for the respondent, 1,101 ,
for Thomas PTodgins, i,0.91 ; majority for respondent, 10.
A scrutiuv of votes having been applied for on behalf
of the i»(fcitioner, the Chancellor, being the Ju<lge on
the rut- for the trial of this election petition, made an
order on the 21.st May, 1875, pursuant to the 86 Vic, c. 2,
ss. 2s-:}7, directing a scrutiny of votes in each of the muni-
cipalities of the electoral division. The scrutiny there-
upon took place before the Registrar, and was conducted
by the following couasel :
Mr. Davidson Black and Mr. J. ff. Coyne for petitioner.
Mr. John McLean for respondent.
During the scrutiny, 18 votes for the respondent were
held bad, and were struck ofF the respondent's poll, and
the vote of one of the respondent's agents was held bad
for corrupt practices. The respondent thereupon aban-
doned the defence of the seat to his opponent, the latter
having secured on the scrutiny a majority of 8 votes.
The trial had been appointed to take place at St. Thomas
on the 28th June, 1875, but on a consent signed by both
228
PROVINCIAL ELECTIONS.
[A.D.
III)
parties the day was changed to the 24th June, on which
day the Court was held in the Court House, St. Thoinas
Mr m" uT^'f ''''^ ""'• ^- ^ ^^^«« f«'- Petitioner.
Mr. John McLean for respondent. '
The Chancellor said that the trial of the election
petition had been fixed for the 2.Sth June but I bofh
parties had agreed to his taking it at an :a;itr dtv
.ere found convenient he had changed the day of trial to
to-day. He had not been able to get the report of the
scrutiny of votes from the Registrar, but he presumed
counsel knew the nature of it and could state the "sit
Mr. Macdougall, for the petitioner, said that the result of
the scrutiny was to give Mr. Hodgins a majority of eioh
v.te. The respondent had agreed to let Ihat'stidt
t^at Mr S ""^"■''^Vr'^ *^-t the Court should report
that Mr. Hodgins was duly elected.
The petition was then read by the Registrar.
The Chancellor asked if it was intended to prosecute
he charges of corrupt practices against the responden o
If there was a counter petition against Mr. HodginsT
Mr.Mncdougcdl said it was not intended to prosecute
sigi^d wtr '" *t ^T-'i-t, then read the consent
EL?L . T f '"'' P"'"^^^^' ^'^^ -^t^ted that on
theTru^nv o? vT t "' '' ''^ "^^'^^'^^^'^ ^^^-^d on
the scrutiny of votes, he was convinced that the election
of the respondent would be avoided; and not wishTn! to
incur a very large expense, he, on behalf of the rrspoXt
had proposed the settlement which was agreed fn^'
was embodied in the consent just read ^"^ ' '"^
J^ln^Z'^T^ '^'""."'^'^ '^ '''y «- ^1«« desired to
rCndent ^^"" ^'""^^ *'^ ''^''^'^' ^ P^- of the
3 24th June, on which
irt House, St. Thomas.
^. C'oywe for petitioner.
trial of the election
th June, but as both
at an earlier day if it
?ed the day of trial to
fet the report of the
ar, but he presumed
;ould state the result.
?aid that the result of
s a majority of eight
to let that stand as
Court should report
Registrar.
itended to prosecute
5t the respondent, or
•^ Mr. Hodgins ?
ended to prosecute
and there was no
n read the consent
and stated that on
lesses examined on
J that the election
and not wishing to
' of the respondent,
fas agreed to, and
one else desired to
an, in place of the
1875.]
WEST ELGIN,
229
Mr. McLean said he did not know that any one else
desired to continue the case, and he had no reason to sup-
pose that any other person would continue it.
The Chancellor then gave judgment, declaring that
the respondent was not duly elected, and ought not to
.have been returned as member for West Elgin, and that
' Mr. Hodgins was duly elected, and ought to have been
returned.
I The following certificate of the result of the trial was
I transmitted by the learned Judge to the Speaker:
In pursuance of the Controverted Elections Act of 1 871,
J I beg to certify to you, in relation to the election for the
I Electoral Division of the West Riding of the County of
I Elgin, holden on the eleventh and eighteenth days of
; January last past, that a petition was duly presented
j under the statutes against the return of Malcolm G. Mun-
j roe. Esquire, as member to represent the .said Electoral
Division in the Legislative Assembly for the Province of
Ontario, and claiming the seat for Thomas Hodgins,
Esquire, one of Her Majesty's Counsel learned in the law,'
[the unsuccessful candidate at the said election.
That in consequence of the said petition being presented,
it became necessary to enter into a scrutiny of the votes'
polled and tendered at the said election, and I thereupon,
by order bearing date the twenty-first day of May last
past (whereof a copy is hereto annexed), made provision
for holding in every local municipality in the said Elec-
toral Division a scrutiny of the votes polled and tendered
in such manicipality, and by such order appointed a day
and place within each of the said municipalities respec-
I tively for entering into the scrutiny. And I did further,
by said order, appoint my registrar, Charles Allan Brought
I barrister-at-law, to act ,in my stead in the taking of said
' scrutiny.
That, as appears by the report of the said Charles Allan
Brough, hereto annexed, the scrutiny of votes polled at
230
PROVINCIAL ELECTIONS r
he determined tkat th^said ?h "" 'J ''^ «^-*->'
majority of eight of the good and n t^^^"^ ^^^^ ^
electioa ^ " *'^'* ^^^a^ votes at the said
That the trial of the saif^ t.^*- +•
the town of St. Thorn .nih"" ""'"' ^'''^^ -« -*
tte said election. AnTr<f ^^?'"'' T"" ''"'^ "'''""''l »'
yo. pu.„a„t to t„e :lltt: tj- ™'-'- '"
'"f ■■'■ ™-^ (■) Duncan MeKilloDrr^ r™P' P™"^-
Jolin Livingstone. P' * ^ '''""*^ Kmeweli, (3)
ACTIONS.
[a.d.
> before him, as directed
elusion of the scrutiny
homas Hodgins had a
legal votes at the said
on came before me at
-county of Elgin, on
•I June last past,
lid trial, I determined
m G. Munroe was void
s was duly elected at
uch determination to
behalf.
•e me at the trial.
tes of evidence taken
' o« the said scrutiny.
'd that the following
iilty of corrupt prac-
James Timewell, (3)
'm., 1875-6. p. 18.)
1875.]
WEST WELLINGTON.
WEST WELLINGTON.
231
Before Mr. Justice Gwynne.
Ouelph, 25th and 26th June, 1876.
George Moore, Petitioner, v. John McGowan, Bespondent.
■ Agent furnishing drink at meeting of electors— 3S Vic, c 21 s 61 ■ 36 Vic
t ^',-^' ^r^°'^ occasioned by conduct of Election Agent-Corrupt
practices by tavern keepers. ^
*^'!n J'A/"iT°* ''^ the respondent, brought a jar of whiskey to a meet-
Ln^n °f «l«<=t°." "^^f-nble^ for the purpose of promoting the election,
ana gave drinks from the same to tlie electors present, which wa^
held a corrupt practice, and a violation of the Election LaW of \m,^
amended by tho Election Act of 1873. so that the election was Se^
'" "^tl I'Tl'i?''*'^^ charges of bribery against the respondent's
nnnlnf '• *\°"f^ not esteblished, were awarded against the
■ K^ u , ^^"'Tl"^ *,° ^^^ equivocal conduct of his agent in the matters
which led to the charges ; also the costs of other charges of bribe,^
which were not established, and the costs of nrovinf that sS
L^w of 1868. as the witnesses who gave evidence of these matters also
gave evidence of other matters, as to which it was reasonable thev
should have been subpcenaed. lewonaoie rney
The petition contained the usual charges of cori-upt
practices.
The candidates at the election were the Respondent and
Robert McKim.
Mr. Hodgim, Q.C., arid Mr. Outhrie for petitioner.
Mr. Robirtson, Q.C., and Mr. Drew, Q.C., for respondent.
The evidence on which the election was avoided was
as follows :
Thmms 'McAllister ; I live in the Kerry settlement. I
was at a meeting held in the school-house during the
election, called by Mr. Fahey It was a meeting of the
electors. The school-house was pretty full. It was about
a week before the polling day, or the week before. The
polhng day was on Monday Mr. Fahey addressed the
meetmg on behalf of Mr. McGowan. There was some
whiskey going at the meeting; Mr. Fahey brought it
there. He told us it was his whiskey It was served
out to the people attending the meeting I got some.
232
PROVINCIAL ELECTIONS.
[A.D.
The whiskey wa. served out before he commenced to
tne meeting. The whiskey was in a jar. It held I shoulH
lor mni^ Mr. Fahey attended meetings and snoke for
Mr. McGowan ; ate Dr. Orton ; also, ,t tWnk M?Wt
attended one meeting. I was at tl,e meeting in w'
Fahty nd Dr Orton'^k?" *" ': "'"^^^ ''^ «■•■
J- auu ijr. uiton. Ihere were two meetino-« «+ +i,„
Kerry settlement. I think Fahey was latet?; fi It
heartfm Th' W' ^"' T^^"' ^''^^ ^"^^ « '
hear h m. The last was the one at which the whiskev
He ;;rr r-J-b-ughtit. Several askelS
; ^Th, "/r ^^- ?' ™' *^ <^h^ '^^^^^ to look after
^ The cutte>- m which it was had gone. He a!ked
sent for it. I was brought back, and Fahey poureTil
out and gave it to the parties there. There were from
thirty to forty people there. Fahev keot 1^1 !
until all was drank Tf '.'^"ey Kept pounng out
»• was urank. It was immed atelv before ih^
meeting commenced that th. whiskey was hLded round
Mr Fal. T. *?"" ^"^ *^^ P"^P-« 0^ replying to
^r«s-OTm.«rf, I did not drink any wliiskev mv„lf
I have not drunk whiskey for thirty jta^ That
nT'br/thtghrMr'Va e^'y IthTh"'"^'^' ' »'"
asked him « never e^'eS^X mi J aTThe';'' '
whether he ™ an agent „, Mr^McQ^wa: „ tt""^
d.d not thmk the law was so stringent as it appea^,^ be
''IONS. [-A.D.
)re he conimenced to
^ho drank stayed for
jar. It held, I should
2. Thei-e were thirt-"
I live in the West
elector. I took Mr.
meetinefs and spoke
Jtings and spoke for
, T think, Mr. Barrett
le meeting in Kerry
1- The bills adver-
e addressed by Mr.
two meetings at the
as late for t\e first,
,s called specially to
which the whiskey
Several asked Fahey
door to look after
i gone. He asked
• Some boys were
id Fahey poured it
There were from
kept pouring out
diately before the
was handed round,
i in relation to the
3se of replying to
irhood w^as chiefly
y whiskey myself.
>y years. I have
uring the election,
whiskey. I said
lave some, and I
ind at the time
Jowan or not. I
s it appears to be.
1876.J
WEST WELLINGTON.
233
James Fahei/ : I addressed some meetings for Mr. Mc-
Gowan. I addressed a meeting in the township of Arthur.
I heard it stated here that whiskey was brought by me to
the meeting. I had nothing to do with it, but that it
came in the same sleigh with me. Mr. Charles Biggar
drove me. He had charge of the sleigh. I got out of the
cutter at the school-house. The horse and cutter were
sent up to Mr. Cornelius O'Dowd's stables. The whiskey
was in the cutter when it was sent there, about a quarter
of a mile from the school-bouse. I had no intention that
whiskey should come to the school-house. When we were
leaving Mount Forest where we were, Biggar put the
whiskey in the sleigh. I never thought more of it until
we got to the school-house ; there was quite a crowd there.
Mr. O'Callaghan and Mr. Milloy asked me if I had any
whiskey, or if we would not treat. I said, of course, you
never knew an Irishman that would not treat. I said
that there was some in the cutter, but it had gone away,
and that if they had a mind to send for it they could.
Somebody went for it ; I did not send. Biggar was pre-
sent when this was said. The whiskey was brought
down ; some boys brought it in. I said to O'Callaghan
and Milloy, now if you want a drink, here it is ; Milloy
took a drink ; I took one myself ; O'Callaghan put it to
his lips but did not drink. I thought then that it was a
trap, and I said, I hope this is not against the law.
O'Callaghan laughed, and said he thought not, and even
if it was, nothing would be said about it. If I had thought
it was against the law, I would not have had anything to
do with it, The whiskey then went round, and it went
but a short way.
Mr. BobiTison. at this stage of the case, said that he was
satisfied that upon the evidence of Mr. Fahey the election
must be avoided ; for that no doubt Mr. Fahey was an
agent, and his acts as to treating at meetings could not be
justified. He therefore asked whether the petitioners
insisted still upon the personal charges ?
234
PROVINCIAL ELECTIONS.
[A.D.
Mr. ffodffins said that so far as fhp ^.^-y
cerned he had no desire to nl V P'*'*^«»«^ ^as con-
would leave the casras toT ^^ ^
argument. ^^''^ ^'^ ^^^ Court without
that James Fahey, an tent oth^' /"'*""'" *'^^'
promoting the sa d eWf '^'^ respondeat for
section of^heVe:Llt"^,T867^^^- 1 ^ ''''
Election Act of 1873 did nl i .' f ^""""^"^ V the
-eeting of elector\teS foT . ^^"'^^ ^""^^
n>oting the said election ^' P"'P"'^^ '^^ P^^"
attltn^XchtZstr^ to the petitioner the costs
tavern keepers guilt of havin "f! l^ ^''"'^'"^ '"'^^^
liquor within polling hour,.? v''" ^^'^ ^'^^^ ««W
following reasons \w"n. f"'"^ ^^^' '^'^^ ^^^ *he
attemptell tTbe estabHsh/d . ?' '^" ^' ^^^^^^^ ^-e
«pondent's financ I a^ ;!' '^,f ^ ^^^^ ^^ ^he re-
showed that in the „X, '^^^^^^^« his evidence
just imputation of an^fa:^^^^^^^^^ «^ ^^^ -s no
very equivocal conduct of M. ''"^^^^^ J^^t^^^^y showed
butable either to !rot '''"' '" *^^ matter, attri-
gravercharge oflSt of IdeirT K ''^ P^^*' «^ *« ^
the trust he had Issumed ^^ ''"^''^'" '"^ *^
law as it at presenTstr. , ^^""^ ^''^ '""^^ that the
it does in the Z If , r^'"' ""* ^"^'^^^ the Court, as
?o make tht^rt l;S;::;f*r ^^^^^^
rn^ent, the ^^:::^.^i!:^zr'. rr--
inquiry which the ignorance and 1 "^^'^^^tal to an
agent, although not criZaj Z '"^'^""^"'^t of his own
other charge? of I berv wh ^ T^'"'^" ^ to the
-tablished'and as t^tL 1 tt atnd""^ '"^^' ^ ^^
tavern keepers to have vioC tt S^- iTf tt
J petitioner was con-
personal charges, and
' the Court without
3n of the respondent
pt prf^ctices, in this,
said respondexit for
>lation of the 6J.st
as amended by the
furnish drinks to a
»e purpose of pro-
•etitioner the costs
2h were not estab-
the proving certain
3ir own profit sold
ig day, but for the
is of bribery were
idence of the re-
ile his evidence
of there was no
, certainly showed
the matter, attri-
his part, or to a
employer and to
y much that the
ble the Court, as
ise of Commons,
3sts of this vain
I conduct gave
ler and the re-
ncidental to an
luct of his own
led. As to the
>re failed to be
ig proving the
1 section of the
1875.]
SOUTH ESSEX.
289
Act of 1868, which it was proved they did for their own
profit, with which the respondent had nothing to do, I
cannot separate these from the general costs, because,
upon a careful reperusal of the evidence, I find that the
several witnesses who spoke to these points also spoke to
other points as to which it was reasonable they should
have been subpoenaed.
In certifying the result of the trial to the Speaker, the
learned Judge also reported that the following persons,
being tavern keepers, were proved to have been guilty
respectively of corrupt practices, namely, in keeping their
taverns open, and selling therein spirituous and fermented
liquors in vyolation of the 66th section of the Election
Law of 1868, namely, Robert Ramsay, Daniel Sheehy,
Carleton Calvin Green, Theodore Zass, William Kirby ;
and further, that James Fahey was proved to have been
guilty of corrupt practices, in violation of the 61st section
of the same Act, as amended by the Election Act of 1873.
(9 Journal Legis. Assent., 1875-6, p. 9.)
SOUTH ESSEX.
Before Chancellor Spragge.
Sandwich, 6th to 10th and 13th July, 1875.
Samuel McGee, Petitioner, v. Lewis Wigle, Respondent.
Agent accepting a treat in a tavern during polling hours— Con-upt
Practice — Costs.
On the day of the election, and during the hours of polling, one W., an
agent of the respondent, was offered a treat in a tavern within one of
the polling divisions, of which such agent and others then partook.
Held, that giving a treat in a tavern during polling hours was a corrupt
practice, and being an act participated in by an agent of the respond-
ent, the election was avoided.
The petitioner was declared entitled to the general costs of the inquiry,
and the costs of the evidence incuried in proof of the facts upon which
the election was avoided ; but the costs incurred in respect of charges
which the petitioner failed to prove were disallowed.
The petition contained the usual charges of corrupt
practices.
u
236
PROVINCIAL ELECTIONS.
Mr. Alcrande,' Uanm-on for petitioner.
Mr. Home and Mr. S. White for respondent.
[a.d.
or six persons on polling day i7^" ^« ^'^^^^d five
Alfred Wi„e and A^uf^ or tZZt ^'^^'^
was while the polling vas .oin" on if ^^.^'^^^''ds ; it
sitting-roo.n. There w«. «?!?:"' '' ^ ^ '" ^«^«J^«e«
rpi ■-' o --- > '1- n-aa 111 ljOVeia<
'«tea once , I „,„ not „ ;LThe: A^, Jw^^r?'- '
at Lovelace',; he drank. There are ottfw'*''' ''^''''*
at Ruthven. I saw Alfrerf IK T ^ ' '"" ''^™™»
^vem, ,„Hn. polLf l:l'''tnrrTa'r' '"h""
9, abo t the time of fi.. • Baylors about
Lovelace's alrion ""'"« °' "'^ P°"' -"' t"
it waa pretty ,ariy Idon't rn r.."" P'>"'°«'i»y:
o.- aftertte ^openta: o, the „oU T,""*'''' " """ """■■«
Wore the opin,„g"o, 'the pSu thinT """^ '"''^' '"^
Gross-examined : When ]Wf.n.i^^^
«nt to Taylors and It ifthe LTr t'""' "'
think, the polls were not otn " 1^ f' " T°"'
the mornimr and T l,„,i ■ i '' ""« <»"''y n
Lovelace's httelt the Lid^eonr 7*'"" ' ^'^' ^
^ and McQueen tossed^pt^^^^^^^^^^ ^^ ^ ^""k.
went in and had a drink tV ^'^^^'}^ ^««t' ^nd we
I was bringing u/vot^ to luloTZ^l l^ '' "^.
used my own horse and cutter -^l . ^ ^^e day. I
poll. I took a pretty ac^^'rpartrt? w" '^ *'^
since my brother came out. We formed 1..^''''" '^"'^
at Ruthven to work up theTocaUtv T . '''"'"^'''^
and marked off names I did nnf ^' ^''^ ^ '^^*"''^' ^^'^^^
came to the store Ts^w ""*^,^^"^*««' »«less people
election, and told him 1^^^'."^'"' *^^^« ^"'•^"g "^e
pretty good suppt^iLd'Sfiir; Tl' ''^' ^^"^
i'l' loia Dr. Allworth (respondent's
'IONS.
Jner.
[a.d.
1875.]
SOUTH ESSEX.
237
esponderit.
n which the election
awing evidence :
^jgle ; I saw him in
day. He treated five
ft was at Taylor's;
■ two afterwards ; it
it was in Lovelace's
f of us together. I
Alfred Wigle treated
)nly the two ta^verns
leveral times in the
t to Taylor's about
' the poll; went to
ueen's evidence. I
m on polling day ;
ether it was before
IS pretty early, and
election agent) we could give pretty good support where
we were. I appointed Henry Smith as scrutineer for re-
spondent, and got him to act an such on the polling day.
[The other evidence as to .gency is omitted.]
Spragge, C— At the clo.se of the argument on Saturday
last I gave my views upon the several points of law and
of fact presented in the case.
One point only I did not decide finally, viz., whether
the partaking by Alfred Wigle, whom I find to be an
agent of the respondent, of a treat given by James Mc-
Queen, during polling hours, in Lovelace's tavern, was a
corrupt act within the statute, which would avoid the
^ election. I could see no escape from the conclusion that
^ this act, prohibited by the GGth sec. of the Act 32 Vic,
cap. 21, and declared to be, being within polling hours, a
corrupt act by 36 Vic, cap. 2, s. 1, and being an act partici-
pated in by one for whose acts the respondent was respon-
sible, must avoid the election.
I have since had an opportunity of conferring with
three of the other Judges, and they all concur in the view
which I expressed at the conclusion of the argument. The
result is, that I must declare the election void by reason
of the corrupt practice by an agent.
As to costs, I think the petitioner is entitled to the
general costs of the inquiry ; but the costs have been
greatly increased by the calling of witnesses on charges
which the petitioners have failed to prove ; and the costs,
so far as they have been so increased, are to be disallowed.
No costs are to be taxed in respect to the evidence, except
such as have been incurred by proof of the fact upon
which my judgment proceeds.
In the searching and protracted inquiry which has been
had before me, I find no personal wrong proved against
the respondent. The expenses of the election have been
very moderate, and the evidence leads me to believe that
the respondent desired and endeavored that the election
should be a pure one.
m
li
*"-
i,!«
288
PROVINCIAL ELECTIONS.
[a.d.
j..n., mcq::: w^'^;:r:t Lt; ^""'' ;"«'- •»''
rupt practices at the elccfor, '""■'" «"'"^ "^ «■
!| . I
SOUTH OXFORD.
Before Chief JU.STICE Draper.
ToKONTo, im April, 1876
Benjamin Hopkins, P«^^7,■.„«,,v. Adam Oliver 7?.' v
rap. S,
The petition, besides nl.ar„i„„ .u . _ . ''"^" "-^ P^Uton.
ifl
was subject to the same d.r„.uT(^Z „« «' 1'"^ "''^™'*^ *'"'* ""e agent
* ItLK^^tl °^ *'^« P"tition^ Mkla that thl^ P""* ''"". "« "^ canditfate
party to the petition, and that h« IT i,! u '*»^?* ">'«''* "je made a
quahhcations an.l penklties ^ ""«''* '^ 8ubjecte*d to such dis
^rm^l^S^S^^^/Slffi^^^S^^^^ Acts or elsewhere,
of personal misconduct on his part '^'P"'"^«n* '« » Pet.tion on a charg^
'^^^^^^''X:^4ZKtl7t^^- ^°-* or the Judge on
qualifications, ' " °*'**'^ *''»'>« candidate " to such d?8
re^dt «;rn,^^""« thClh^in ai^ c^t.^v™''"''^''' ■« »'t
Th« ft*K rf '*'''^ *° P^""' consequences ' ^P' ^' "^'^^ *»' «">d 80
to discourage such pleading. " '* unnecessary, and is intended
The petition contained the usurI ni,„
practices, and in paragraph 3 chaZ ttTS' "^ '''^"P*
was. by himself and others on htTefalf l^' ".T" ^^"*
treating and undue influence whioh „ ^" *^"^ ^"^•^^^'
and (paragraph 4) of procur „g rerpe^n^^^^^^^^^^
to personate and assume to f ote It th? 1 . ' -""^^^
names of other persons who were vote J '.^^^^^^^^ '" ''''
providing drink and entertTinln 11' ^^'/^^^^^-P^ ^)
expense at meetings of elector. L^l / (^^^Po^dent's)
keeping open dive'rs hott tv^s^aiTr^' '] ^^
spmtuous andfermented liquors weTe^inafc^td
i
?
I
4
'^«- [A.D.
of the result of the
tt Alfred Wiglo and
been guilty of cor-
n., 1875-0, p. 11.)
'RAI'EB.
tUio„~,t4 Vic., rap. 3.
-Form oj Petition.
h various corrupt acts,
claimed that the agent
inalties as a candidate.
:ent might be made a
ubjected to such dis-
>n Acts or elsewhere
'a petition on a charge
Jurt or the Judge on
'didate" to such dis-
sons "other than the
rupt practices, is not
ap- 3, sec. 49, and so
1875.] SOUTH OXFORD. 2.39
of selling and giving such liquors to divers persons cor-
ruptly to influence them. Other general charges were
also made.
The 17th paragraph stated that Peter Johnson Brown
was an agent for the respondent, before, during, at and
subsequent to the election, in furthe-ing the .same, and
was guilty by himseF of each and all of the said corrupt
practices ; anil petii xier submits that the vote of Brown
for the said respondent was therefore null and void,
and he thereby becam incapable of being elected to and
of sitting in the Legislative Assembly, and of being re-
gistered ai a voter and of voting at any election, and of
holding any office at the nomination of the Crown or the
Lieutenant-Governor, or any municipal office.
The second paragraph of the prayer of the petition
asked that Brown should be made a party to thi.s pro-
ceeding in respect of the said charges so made against him,
to the end that he might have an opportunity of beir)g
heard, and that his said vote might be declared null and
void, and he be declared incapable in the several particulars
hereinbefore mentioned.
The petition contained no direct allegation that Brown
voted at this election, though it was submitted that the
vote of Brown for the respondent was null and void.
A summons having been granted to set aside the 17th
paragrai)li of the petition and 2nd paragraph of prayer,
Mr. F. Osier showed cause.
Mr. Hoyles supported the summons.
Draper, C. J. A.— I presume Mr. Hoyles represented
the respondent, and therefore that the summon,s is to be
treated as issued on his application. He rested principally
on the absence of any authority given by the statute to
make an elector, not having been a candidate, a party
called upon to answer a petition filed and prosecuted to
avoid the election of the candidate actually returned. He
also objected to the 17th paragraph, that, as against him,
240
PHOVINCUL ELECTIONS.
niw
[a.d.
Q-.;s Bench ancU.,o;rlS!:::r" ^'''^ ^-^ 0^
heing heard in hiilw;, ,?'^ ^"" ^'^^^ opportunity of
petition, on which trial thZ in '^ *^' '''''^' «» the
t'-' charge of con^ pm , r"' Hr';'' '^ ^^'^^'"^"^ ^«
*'«vit to .show that tiw eha r'wf ^ P"* '" '^" '-^ffi'
and invited particuJa. .ttenZ IV, T"*""^^ "'*^'«-
tion alleged that Brown wl an a!, ^^e '.=Mhat the peti-
as well as an elector. ^^'""^ *°'' "'« respondent
The Act, ;J4 Vic e *? i,
...ore candidate, ^ VZe7 T "* "'"' '»'°"
PeWion ; ahd (,. 28J rec„™i», T ""'' '° ""^ "»""''
■eta™ B..t there i,„„a„aCble"'r '''"''™ »"<>
an. th,,, case. The contest to°vhl " "v l7! P™™'""'
seat ,n the Honse : whereas asLp "'"y '''-^te m tor the
a party on,,, that he ...a^rHahlet ^'n Tt ^ "^ ■■""»
I fear great inconvenience wo„I,J o ? "*!*'^^'-
a successful candi.late cou ] lel T"'!,' '/ '^*^ '^"^"*« «^
accusation of personal m sconduc " "''"*^ *« ^'^
petition, the leading object of 1 K ''''"""' "P«" ^
sitting .x^ember. Th^ WhlaM k"""' ^'^ ""^^** "^«
directly, provided for t-„f:eo7Th ' "r* ^* ^^^^
it-and this onnssion seems to m ^'"'^"^ ™^^^ '"^«*
of legislative power in ol! to ?'^""'' *^^ ^'^«™
an addition to the powen thich T^/ ' '' ""^"^^ ^
-matter of procedu.' Zlt t ''''"*^ ^^^^^' "«^ a
given. ^^^ '"^ *^« exercise of powers
«lV!S^"Z'rtS7r •■--'« a, a pro.
not the letter of the OthS"„"if ,"" ''" 'P'* "
general charge of corruDi nZ ' """"^ ""*' a
not, I apprehend, be XS^:- T'*° *'»«' "-.J
given until an order for particulars
'W
?TIONS.
[a.d.
1875.]
SOUTH OXFORD.
2e, and wu,i contrary to
""i«le in tl... Court of
court.
ed that by making tho
"1 the opportunity of
and of rebutting the
' ^^y *he i.s,sues on the
would be pertinent to
e also put in an affi-
not wantonly ,„ade,
le fact, that the peti-
t tor the respondent
^vision for thi.s par-
^ («• 27) that two or
'I'lonts to the same
fnore than one peti-
same election and
ien those provisions
i«y relate is for the
^n, he is to be made
)enalties.
^^' ^f the agents of
defendants to an
n election, upon a
ivas to unseat the
a« not, at least
reneral rules meet
quire the exercise
' it- It would be
Ltute gives, not a
ercise of powers
-unless as a pro-
on the spirit if
because under a
ific details need
' for particulars
241
IS made; hut the rule does not preclu.le the statement of
such evidence, it renders it nnnece.s.sary, and so far was no
doubt designed to discourage such a practice. If lirown
is properly made a party, 1 think he would have a light
to such an order under this nil.-. 1 l,ave looked at the
Imperial Statute '.n-li2 Vic. c. 125, from the 4.^th ,s.-ction
of which this of ours .eems to have bee,, copied, but that
Act refers toprec .wng .sMUitesin force in England, under
which proceedin, s might ! ; instituted.
i Under our st£ Jut (^4 V ... c. 3, .s 10) the Judge is re-
! ([Uired to determine ..hethe;- thememb..r whose election or
; return is complaint', of, or any and what other person
was thereby returned or elected, or ^vhether the election
was void, an.l .shall forthwith certify in writin.^ such
determination to the Speaker, api^ending thereto a copy of
h.s notes of the evidence ; and upon such certificate bein..
■riven, such detrnninatim, shall be final to „ll intents ond
j'lirjmses.
But the Judge is (s. 17), when a corrupt practice is
charged, in addition to this certiiicate. at the same time to
reimt in writing to the Speaker, among other things, " the
ndn.es of any persons who have been p,-oved at the trial
to have been guilty of any corrupt practices."
The case of Stevens v. / illett, L. R. (i C. P 147 which
was not referred to on the argument, points out very
clearly the distinction between a " determination" and a
report, and our own statute so closely resembles the
English Act 31-32 Vic, c 125, that this decision is applic-
able m many particulars to the present case. It is the
Judges duty to .-eport. but it is not said his report is to
be hnal. The 49th section of our statute enacts that
any person other than a candidate found guilty of any
. corrupt practice in any proceeding in which he has had an
opportunity of being heard," shall incur certain penal con-
sequences. Now, if the Legislature had intended that the
Judge who tried the issues raised upon the election peti-
on and reatmg to the validity of the election and
return, should at the same time hear and determine a
'242
PROVINCIAL ELECTIONS.
[a.d.
reasonable to expect that t woud ?"'.''"'' ''^"'^'
«o. It is obvious that the Act was L'. ^''""^'^^ ^^'^
ish statute. The 49th sectfon of T'^ "P"" *^« Eng"
though not in every detai " ""'/"' '^ substantially
^he English statute, wSLwTf f ''^ '•'*^ -««- o^^^^
certain effect to the reporroTTn ^'''''"" ^^-^^-^^ a
persons guilty of corrupCetLesf !."''' '' -^P-*«
prosacutioa of such patens t ^' P"''P'^^« «f the
statute (26 Vic, «. 29 bj' t ?'"= '' "'^"^'^^'- English
;epon does no't ^Zt.'^tiO^^y^^^J^J
foundation of another proceed nf rf !''"" ' '^ '« ^^e
have occurred to the framers of our a\ t'' "^'^ ^^^"^ *«
«-ry to provide for some ' IT .^'' '^"' ^* ^^« '^eces-
notice of the charge " the nl« '^'"^ ^" ^^'^h, after
-port n.»y havet "o p^r ritTt^^^^^^ ^y the Judg^I
while making use of sectirri;,-^""-^ ""'''''" ^^^
refer to section 16 of the Ent] i!' "^' remember or
appears to me. the inoLXuSt ^"^ ^^-' -
consequences of the 49th secdon K° ^^''^ ''^ '^« P^-^al
It may be as well, however tot >'' ""'' ^^^" P^^^^^ed.
that our enactment applLs to 2 '"^'^"^'^ '^ ^^e fact
rupt practices. The EnW sh loTT ^"""'^ °^ ^'^J^ «or-
to those found guilty of bribt^ "'"'^ ''^ ^^^^^^ only
in my opinion the power of «.'];., j •
than a candidate" guiL of oo T '""^ ^ P'^'^"'^ "other
iect him CO the ai^2alZT ""^'"^ ^^ ^^ ^« -h-
Wd either upon^he eL S^r'^^r"''"' ''''''' '^n-
t- ^«^«; and that the JuZsre'T T ''^^ -^"^^^ o'^
any persons who have been n ' T .° "*^' "^'"^^ of
b-a guilty of any corrupt praE'' '';.'"^^ *« '^-^
elusive, so as to bring such nl '' ^""^^ ^"'^ «on-
of the 49th section af foufd llT' "l"'^" *^« ^P^ation
to the penal consequence ^ ^' ""'^ '^^''^^^'-^ subject
-^^^^Z^J^^^- -strike out
prayer of the petition. ^""^^"ding paragraph of the
SECTIONS.
r ,''"' ^^° Jiad, as an
he election, it is, I think,
^"W have distinctly said
w trained upon the Enrr
our Aefc i, substantially
y oi the 45th section of
Jr. by section 15, gives a
the Judge as respects
' tor the purpose of the
'"= ^o another English
portion of the Jud^^e's
salification ; it is the
It does not seem to
Actthatitwasneces.
^dmg in which, after
^Ipated by the Judge's
3t being heard," and
' did not remember or
statute; and thus, as
r a party to the p^nal
'S not been provided,
attention to the fact
*^ guilty of any cor-
on 45) extends only
ing a person " other
notices so as to sub-
'erated, is not con-
■t or the Judge on
or "the names of
fc the trial to have
not final and con-
thin the operation
therefore subject
isue to strike out
paragraph of the
fA.D. J 1875.]
SOUTH OXFORD.
243
^ I understand the application is made on behalf of the
I respondent, and not of Brown. If it were on behalf of
.|. the latter, I should give him his costs, as no objection was
;; made to his being heard. If of the respondent, the point
-'- being new, I will give no costs.
SOUTH OXFORD.
Before Chief Justice Draper.
Woodstock, 13th to 15th July, . .75.
Benjamlv Hopkins, Petitioner, v. Adam OhiYi£.Vi, Respondent.
Production of tekgmnui— Evidence respectini/ chart/es not in particulars—
Excluding Reitpomlent'/i Attorney from court.
Tlie Court ordered the agent of a telegraph cninpany to produce all tele-
grams seut by the respondent and hia alleged agent during the election
reserving to the respondent the right to move the Court of Appeal on
the point ; the responsibility as to consequences, if it were wrong so to
order, to rest on the petitioner.
A witness called on a charge in the particulars of giving spirituous liquors
in a certaui tavern on polling day, during polling hours, cannot be asked
if lie got liquor during polling hours in other taverns.
Tile attorney for the respondent may be ordered out of court when a
witness 19 being examined on a charge of a corrupt bargain for his
withdrawal from the election contest, when the evidence of such
witness may refer lo the sayings and doings of such attorney in re-
spect of such withdrawal.
The statements in the petition appear on p. 238.
Mr. M. A. Harrison, Q.C., and Mr. H. B. Beard for peti-
tioner.
Mr. Bethutie and Mr. F. R. Ball for respondent.
During the trial the following points were decided :
An agent of a telegraph company was subpoenaed to
produce certain telegrams in the custody of the telegraph
company.
David Flook • I am in the Montreal Telegraph Com-
pany's employment at IngersoU. The respondent and
Peter J. Brown sent mes.sages through the office during
the election. The messages are in existence now. I object
to produce them. I am instructed not to produce them.
»p
il
244 PROVINCIAL ELECTIONS.
After the argument of counsel,
[a.d.
Draper, C. J. A., said : I admit the right to call for the
telegrams, reserving, as a question of law, whether the
petitioner has a legal right to demand them, the respon-
sibility as to any and all consequences, if it be wrong, to
rest on the petitioner. The respondent having leave
reserved to move the Court of Appeal on the point, I
direct their production.
A witness was called to prove that spirituous liquors
were given during the polling hours at Brady's tavern, in
Ingersoll. During his examination,
2Ir. Harrison asked the witness: In what taverns in
Ingersoll, other than Brady's, did you get liquor on polling
day, during polling hours ?
Mr. Bethune objected. Brady's tavern is the only tavern
in Ingersoll mentioned in the particulars, and therefore
the question should not be allowed.
Draper, C. J. A.— I sustain the objection.
A paragraph in the petition charged that one James A.
Devlin, who had been a candidate at the election, was
induced by a corrupt bargain to retire from the contest.
During his examination, Devlin stated that he had been
asked to see Mr. P. J. Brown and another as to his with-
drawal.
Mr. Harrison then applied that Mr. P. J. Brown should
be ordered to withdraw while the witness was giving his
evidence.
Mr. Betlmne objected, as Mr. Brown was the attorney
for the respondent, and his presence was necessary to
assist counsel in the proceedings.
Draper, C.J.A-I direct Mr. Brown's withdrawal
while this witness is examined as to Mr. Brown's sayings
and doings in relation to paragraph 8 of the petition
l!i -
1875.]
EAST PETERBORO.
245
After a number of witnesses had been examined, it was
agreed by the counsel for both parties that the election
should be declared void on account of corrupt practices
by one William McMurray, an agent of the respondent, in
giving spirituous and fermented liquors at his tavern, in
the town of IngersoU, on the polling day, during the hours
appointed for polling, in violation of section 66 of the
Election Law of 1868.
The Chief Justice certified accordingly, and reported
that William McMurray was proven to have been guilty
of corrupt practices at the said election.
(9 Journal Legis. Assein., 1875-6, p. 10.^
EAST PETERBORO.
Before Chief Justice Draper.
PETERBORO, 36th to 28th July, and 2nd Augmt, 1875.
James Stratton, Pdition^yr, v. John O'Sullivan,
Respondent.
Ads of agenei/— Respondent's Ayent partaHng of luiuor during polling
hours not ' a corrupt pmrtice— Meeting of electors— Treating bi/ He-
spondent's Agent— 36 Vic, c. 3, s. 3— Law of agency.
A witness stated tliat he liail asked the people in his neighborhood to
vote for the respondent, had attended a meeting of the respondent's
friends, and made arrangements for bringing up voters on polling day,
and had a team out on polling day.
Held, that the evidence of his being an agent of the respondent was not
sufficient.
One B. was appointed, in writing, by the respondent to act as his agent
for polling day. During the day he went to a tavern and asked for
and was given a glass of beer.
Held, that B. treated himself, and neither gave nor sold, and was not
therefore guilty of a corrupt practice.
One C. accompanied the respondent when going to a public meeting, and
canvassed at some houses. On the journey, the respondent cautioned
C. not to treat, nor do anything to compromise hin, or avoid the elec-
tion. 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.
Agency in election matters is a result of law to be drawn from the facts
of the case, and the acts of the individuals.
246
PROVINCIAL ELECTIONS.
[a.d.
'lITOl^M
tavern. whSl ^{JeVwer frJat" dt'c " "'"' '"'" *''^ "'^^*'"« *" *
Toi«.^Te':i:crnTrnr °' ''"'"" """''"'^ '^ ^'^^ p"^°- «>'
^'StVo"ir^T^\[^-jir,' corrupt practice and a breach of the
•J-s VIC, c. ^j, as amended by 2nd s. of 36 Vic, c. 2.
m^tLer*'^*"'' contained the usual charges of corrupt
Mr. Bethune and Mr. D. W. Dumble for petitioner
•spo'Sei^"'"' ^''''"'''''' ^■^■' "^"^ ^'- ^"'•"'^«'« f«r r^-
In addition to what is set out in the judgment the
following evidence was given : ^
Frauds Birdsall: I live in Asphodel. I asked people in
. my neighborhood to vote for D. O'SuIlivan. There wis
a meeting at Westwood-not a public meeting-o The
friends of Dr. O'SuIlivan. We talked over the election
for ol n ""'f r' ^'^^'^^ ^'«^^"y --« the agen[.
tor O Sullivan at this election. I had a team out on
Pollmg day. Treated myself and four or five others at
sIlr'Th T Sf?>^ ' ^'''- ' h^^ --dy i:a
Xold an^h r^^^^ •^'^'"'*'' ^^"^^"^^ - the liquor. I
and ie wou,/;: ;:\a™ ;o\t;r '"" '- -^ ™'^-
fe e nim any. I think Breakenridgc wis at tr.v t.1o„
about noon. He wao flio-^ • . «^. ^ ^^ ^'^ ^7 place
''^'^'i Sreakenndge : I took narf n f„ i-
I was at Norwood when Dr OS"" '' ^^^Pondent.
public meeting. IwaIalso«t« ^^""''^'^^^^ t^^^*-^ ^^ a
g. -^ was also at a private meeting at Bishop's
It J i'i I.J 1 r tv; !J.<
.' Ml*
1875.]
EA.ST PETERBORO.
247
hotel ; a meeting of respondent's central committee ; 20
or 30 persons were present; respondent was not there.
I was secretary ; I had no regular appointment. At that
meeting I was appointed as agent for the respondent for
polling day, but respondent himself appointed me. [Ap-
pointment put in.] I got this from the respondent's
brother. Mr. O'Reilly was also -laraed at my request. I
did no treating on polling day. I was in Galbraith's
tavern. I treated myself ; I got a glass of beer ; I asked
for it in the kitchen, and got it in another room, not the
bar. Francis Birdsall came with me. I paid for no drinks
for any person that day.
After the argument of counsel as to the agency ""f
Francis Birdsall, and the purchase of liquor by John
Breakenridge at Galbraith's tavern, Westwood, during
polling hours on polling day.
Draper, C. J. A., said: I think the evidence of Birdsall 's
agency insufficient. As to the purchase by Breakenridge
of liquor in Galbraith's tavern^ it waa a glass of beer to
which he treated himself; he neither gave nor sold. I
find for the responded
:r) these charges.
The facts on which the election was avoided are suffi-
ciently set out in the judgment.
Draper, C. J. A. — It is very satisfactory to me to be
able to find that there is no evidence whatever in this
case which impugns the personal conduct or character of
the respondent. I find not only that he is free from the
imputation of any forbidden practice in the mrae of this
election, but that he has endeavurud, by earnest advice and
caution, to restrain his friends and supporters f ora doing
anything which would enable his opponents to neutralize
the success to which he aspired, end render the election in
which he confidently anticipated success being open to
question through the indiscretion or reckless ss of any
of them. Unfortunately, his advice was disregarded; the
H
I- :f
248
PROVINCIAL ET.EOTtOVS.
[a.d.
identified with tW » , . ' °*°"*'' »« »" 'w
f- a-i.- illegal i;,;''""' '"*' '" ■™''- Wm re,p„„»i!„,
. 3erjc X tintt/'T, 1 ^''^' *-
advertised. The resco !n ii, '^^ '''''' ^^"'^^^^^^
Boulton a]l spoke atf tk" ^' ^'"''^""'^^ ^"^ Major
sJei,h. and one Tim Iv c! "''?'"^' '"^ ^"^^^^^ ^
aceou^panied h L ^1^^ Cav^nagh and Major Boulton
Holmes's tavern A^.h 'T ^^'^ ^'^''^^^ ^^^t *«
almost directly for the S JhT '. I r««P««de„t retired
who attended the' Tr^ ''"'"^'" «^ *h°«« electors
agh treat^fthe ;^^^^^^^^^^ -'so to Holmes's. Cavan-
the people liouor ?^' n '' '''^' ^" ^-^^^ him to give
«-s^„7tLTo„eBov?T'' T '^ *^^^*^^ --^
opposing eandida:::^rsTHSe%t^^^^^^^^^^
Cavanagh states, from 10 n m 7n9 lu "^^^''^^^d, as
The facts are reliedTnon f u *"•'"• *^' ""^* '"^^^ing.
-tion of the S:i:^zi';'Zs tr^^ -' ^ ^^^
expense of the resnonrJpn/ ! u ' ^ ^^^^nagh, at the
viding and f-X^drinl' L r"^^^P^"^^' ^'^ P™'
assembledforthenurno.Pnr ^.."^^^^^^S of electors
this be proved thenT P™"^^*^'^^ «"«h election. If
the agent for lptlnt^'T "^« ^^--^^h
is answerable fofhis act and'c T' '^^" '^^ ^^**--
'^s in this ca.e, he not nnl 1 r'"P*^ Practices, though,
actually, and in WrL td ' "^'^/"^^ori.e tl ,n, b^u
Agency does noHe Is^a "^r"' ^ f^^^^^^ --•
actual appointment. ^^^ ^^XT^'":^! '^
It IS a result of law to hf> ^ ^ *^'^ candidate.
case and from the acts of the 112) . '" 'p ''^*^ ^' *^^
'^ which, with the hnowl C '\ ^/^^y '"stance
<^-'ployed agent, say his esuC,^ .tt? ''' "' ^^'
I '*. a,i.ent, a person acts at
;i.'j
1875.]
EAST PETERBORO.
249
nd keeu'uig the
s hoen w m .tonlv
nry is v, cofcher
ices are so far
>infc of law to
lim responsible
Apslej about
tjen publicly
er and Major
lad engaged a
fajor Boulton
Irove first to
spondent and
ndent retired
those electors
es's. Cavan-
l him to give
feated many
fcratton's, the
iontinued, as
>xt morning,
of the 61,st
nagh, at the
*nce, in pro-
of electors
election. If
Cavanagh
1 the latter
•es, though,
* t' m, but
it Liiem.
)ven by an
candidate,
cts of the
y instance
te or his
on acts at
all in furthering the election for him, or in trying to get
votes for him, tends to prove that the person so acting
was authorized to act as his agent. A repetition of such
acts strengthens the conclusion. I found these conclusions
upon authorities in the mother country, using to a great
extent their very words, but not simply quoting them.
To apply them to this case. Cavanagh, at his own re-
quest, which I do not doubt, and for certain personal
motives which he asserts, — but to which (excepting his
gratitude to the doctor for his professional services) I give
but slight credit, — accompanies the candidate on a journey,
which had for one object to attend a public meeting in
reference to the election at Apsley, and for another to
canvass voters in a particular section of the county. It
was intended that Mr. Carnegie, one of the respondent's
authorized agents, should have gone with him. He did
not go, and Cavanagh 's request that he should be taken
was complied with, though Mr. Carnegie says he had no
desire to take him. Cavanagh says he was acquainted
with people on the Burleigh Road, and that he did not
canvass the whole of the Burleigh Road; that on this
journey he canvassed at some houses, and perhaps
canvassed some voters whom they met on the road, and
may have introduced some voters to respondent. The very
first witness called in this case was one of them. On
their journey, Cavanagh states, the respondent, knowing
his habits (if I remember rightly, he used some such
expression as " Jle was an awful fellow for treating"),
cautioned him to do nothing which would spoil his elec-
tion — a caution which strengthens the assumption that
the respondent counted on Cavanagh's assistance and
exertions. Major Boulton, who also went with the re-
spondent and Cavanagh, heard the former tell Cavanagh
not to treat nor do anything to compromise him or avoid
the election — a charge which points to the employment
of Cavanagh for some work or duty in which his acts
would be deemed acts done under the implied authority
of the respondent. Again, on the day after this meeting,
250
PROVINCIAL ELECTIONS.
[a.d.
together, and toTca 1. ^ ' '"^^ *'^' respondent
whether he ha, d ^^'^^^ ""^ ""^^ '"^'^ ^^^ ^^k^d him
that he had not Z7 ^"^•, ^"* ^"'^'^'^ ^'' *««"''a=^c«
years.andhadh ardof h rr ^ ''"' ^^^^"^"'^ '"-y
in treatin, ^^^:::^^^^''^^:]:^^^
charged to respondent t. ^ "' '' "^^''^'^ ^* ^^'^
Hohneshadoharreda.anu '•''=' '''' ^""'^ ^'"^^
February, I87riat fl? ? 'V "^'^'^'^"^ "^^^^^ in
Hohues'f^n th Vsth T ° '' Cavanagh's being at
cun.stances t ken sepatlTv^ ^" ^'^-^ -"
be deemed triflia" "^^ y '"*^' ^' ^^ ^^^^^ ««me may
acquire wei^^t fnd 1";"'"'"^'' '^'^^ -"^ined they
parties none;;^tn:t::L\:le:'^^^^^^^^^^
appear to me to furnish stroreviL 0^'' ' r '^'^^
ahve to the dancrer as wpII u , ^ ""^ ^-^"''y- ^ am
of fixing .he res;:;d:„rt'irM r^^^^^^^^ r '^^^P-
another as his agent, which other ii/,^ ^''' '^^"^ '^^
direcdy put to him, he wou^not h '^"''f '" ^^^^ ^'^-
character. There was 0^101; • ' '^''P^"^'^'* ^'^ ^^at
ent's part, and ar^ZltjTu ^"^'''"'^ '''' ^^' ^^^Pond-
;hink they -0^^: t^ rt^an^ T '
forma appointmpnf ^k I ' *""' without any
_^^ me election, became responsible for his
after this meeting of the Z°i" ''''''''^ ^' Holmes's
suffice as to this :''" I ^as at tM" ^ "'" ^^^^'"^^ '-^
wards went to Hohne7s tlv rn ^ T "'''""^' ^'^'^ ^f'«-
nately, turn about;/ Lea'd L T '"' ' ^-^^edalter-
^wo in the morning an tllT "' ^'" ^^ "^^'^^ ^^^
for each drink as if Ctakln " ™^' '"^^ ^ ^ P^^^
EAST PETERBORO.
9 to be a very
he respondent
nd asked Jiim
'ing parties to
his assurance
vanagh many
ig free handed
ivanagh goes
he hired, but
lether it was
lorized agent
and which
Jilt dated in
's being at
II these cir-
i some may,
ibined they
■ntiated by
ndent, they
ncy. I am
t hardship,
'H done by
n had been
'ed in that
8 respond-
?ie's, but I
thout any
self of his
tJe for his
251
1875.]
I think this is a breach of the 2nd sec. of 30 Vic, c. 2,
which repeals sec. 61 of the Election Law of 1868. ' The'
only question that can arise is whether this drink was
furnished to a "meeting of electors assembled for the
purpo.se of promoting such election previous to or during
such election." The meeting was certainly not convened
at Holmes's tavern, but at a town hall not far from it ;
and Cavanagh, Boyd, and a number of electors went from'
that meeting to Holmes's. It is not open to question that
the meeting was assembled for the purpose of promoting
such election, unless the statute is to receive t:.o narrower
construction that a meeting of the supporters of only one
candidate is meant, and the promotion of the election
means only the promotion of election of that candidate.
I do not doubt that such a case would be within the Act,
and the evidence on the present trial is by no means con-
clusive against this being precisely that case. Still I am
of opinion the wider construction is no more than what
the Legislature intended. If the meeting consists of
electors of different parties, and it is held with the view
of promoting an election, it must necessarily be an election
of a representative for the whole constituency, to what-
ever party he may belong. Unless the larger construction
prevail, a general meeting of electors, held only for the
purpose of selecting a candidate, would not be within its
provisions, and the providing and furnishing drink or
other entertainment to the electors present would not be
prohibited. I do not agree in .such an interpretation.
Another difficulty has been suggested, namely, that the
treating did not take place in the building within the
meeting assembled, and that the meeting was in fact over.
A similar question arose in the North Wentworth case (post).
I there held that where a meeting had been held for the
promotion of an election, and after the transaction of
their busiupss they had gone generally together to a
neighbor]:-^ tavern on the invitation of the candidate on
whose b. half the meeting was held, who there furnished
or provided drink or other entertainment for them, it was
2r,2
t'HOVINCIAL ELECTIONS.
[a.d.
this w.»\ °„„,! "'"""'''" "'" TT"^ "'■ ""'""K *•'
eo»^nt,.„;ujt:;:t;:i:/ri^rs^^^
(9 JmtmalLegis. Amn., 1875-6. p. 10.)
Ilr
NORTH VICTORIA.
Before Chief J,^stice Drapeh
Duncan McRae, p.,.v.w.., , John David Smith
_ ^. -Respondent. '
W eparticuL..wered«i;. . . "' '''"^''''-^"•'■''^'"<^o,t, case. '
partic^ulap. a.u? noTril^n'ed^f alt ^/-'"^ '''"'^^'^ ''^ "" order for
't'on.and .luring ■ tr^* °' *^.f ^^'^'on^"^. «»me
»raea, and had an oyster supper.
Where evirl
selling 1 1
out on .1
objected
not cons
"e of an
th<
\n
(3cai
1875.]
NORTH VICTORFA.
253
'understm I that
another cane. I
my opinion, and
• of finding that
an agent of the
knowledge and
are void.
1 the first charge
udgment on the
itliH tavern at
the particulars,
charges.
S75-6, p. 10.)
Hi.
1S75.
viD Smith,
y— Entertainment
i~^'.lent treat in;/
iminatory case.
% iio order for
' the trial to set
e been made in
time limited by
'■ pttitioner was
» ' ontained, and
granting of the
'ollii;g day, and
>etitioner, came
e esidence was
*a, the case was
Held, that the" evidence was. not Budi, i«nt to gusUin the char™ that
T^^V■.TTonr' '"7'!'r' .*;^\^.'-^"'« «f ""octorsSr s 'o
oi AZ Vic, c. .'I, as anii'Mded by ,J(i Vic, c. 2, g. 2.
On polling ,lay, one W asked two voters to go witTi him and vote for
the respondent and he would bring them back, and they could feed
heir horses and have dinner. VV^sent one of his hors/a on on,, o
Ins own business, and hired from one of the voters a horse, or which
W. paid hi.n .)0c., and then drove witli the two voters to the poll
IMil, not a hiring of ahorse, etc. to carry voters to the poll within s 71
nor a furnishing of entertainment to induce voters to^ vote for the re^
spondent, with.n s. 61 of the Klection Uw of IH(i8.
An offer by an ukv nt of tlie respondent when canvassing a voter, that he
An agent of the respondent, whil anvassing a voter, ijavo «8 to the
wKlowed sister of the voter, an ol.l friend of his. who was then in t^
duced circumstances. The a^ '..t stated that thi.s was not the first
"-.ley so given, an.l that it was in no way connected wUh the election
Hiiit, under the circumstances, not an act of bribery.
One M., an agent of the respondent, treated at a tavern du, iriK poUiiiir
hours on pollu,^ day. Tke evidence was, that decanters we'^^o put
down, and people helped themselves, but there was no evLrce t^at
Pm« r h "'.""'■' ^"''^ ""''^•- '^^'^ ''^'•'«"^« "•'«' objected to at the
sLbScTto the o"K^^"°* '"^"*"'"^'^ "'*'- P-"""-- »-*.-l-i««l
"'l'':.h 7^^^ ^^^ "''^"'■" °i *''^ ^•■''■'** '" ""' bar-room of a country tavern
rinsed the presumption tliat the treat was of spirituous h.moi-s and
was a cornipt practice, whicli avoided the election '
'• I::l^tZ:^l::SZ^'^:£l *" '"'^ ^ P-t-.lar embracing the
C Ulfrcrorily prveT'' ""■"« ^ ^'^^ ^''^^^^ •'«-^V not having
° W?*n'r«^ '''=*"«i^i aff»t "f. the petitioner, aareed with a voter who
voL'J^Un?" T "^ w? *lf Pet't'o-'e"- "bout a riglit to cut timber on the
fn. .. A*° "'"l^ *''.'' "«'"e'--the voter when canvassed to vote
mLf ? Ph*'*'°"?; '•e^e™"S to this difference. M. signed an agree-
ment in the petitioner's name, whereby he surrendered any claim to
cut timber except as therein mentioned.
Held,\ That a surrender of the right to cut timber on the In of
bntry cTause's J^xt T^''^'^'' ^''"^^ '^^ ---"« - the
2. That the agent M. was guilty of an act of bribery.
^?n*''nn!!'*'l'^'**.°- ^^^ P«''«T'' *° "^'**'" *''^' «««* i« 'I'^cided adversely
in one case it is no prejudice to the respondent's case that other
charges against the petitioner are not pronounced upon.
Recr-ninatory charges are permitted in the in'^erest of electors, in order
to pievent a successful petitioner obtaining the vacated seat if he has
violated any provision of the Election Law
The petition contained the usual chai.i^es of corrupt
practices, and clfluned the seat ftjr the petitioner.
The vote at the election was: For respondent, 724; for
petitioner, 720 ; majority for respondent, 4.
254
PnoVINCIAL ELECTIONS.
[a.d.
!i f- m
§
petm^r"''""' "'"'' ««"""»'»0- oh.rge, .gainst t.,„
„„!;.*""' '''"'""•°»' Q-C- "'.rf «•• ^. &*e for petl.
th.v were toolr 7 ''■".P"""""'-''-, on tho Rroun.l that
defective. MoreoveTthr, ■ T' "" "" "PP"""""" i»
«l»o furthe,. paZiL ''""™'"» "-^ '''"™-'. -"
aclTd'anJ nttr?'' '";*"''"^ 'PP"" '<> '»« l'^™
eptea ami m.ver returned to tlie petitioner I thi„t
should not have a ow d T' "?v ""' *' ""P°"*"'
incur costs. P.rtrcil,Wef '''°"" '° ""''"^ -'
showing why an IS T " ""^ ""^ »" "ffl^""'
not made ^ °"'"' =°'"Pl»"« with the order was
thiulfdltnl?-^"*"'^"'*™"'* "led statins
shot trTJtror.i"? '-^ "-"^^ p-'--.
rM
fA.D.
irges against the
3onUbee for peti-
Ic/nti/re for re-
i w»>re decided
olyected to tho
ho ground that
>red within thu
f^hich the par-
application is
delivered, and
^ to have been
ner. I think
ve been made
le respondent
proceed and
lave the ser-
liarges, under
an affidavit
e order was
> filed stating
or believing
particulars,
insufficient.
' 31st July,
itil the 3rd
ihe day ap-
1875.]
NORTH VICTORIA.
255
pointed for the trial. Numerous witnes.ses must be called
if the particulars are now receive.l, and the petitioner
must get up evidence to reply. Besides, the order is not
complie.1 with, as the resi.lences of the parties named are
not given, and there is no facility for in()uirin./
Mr. Maclnimm: The order requiring petitioner to de-
liver particulars to the respondent within a limited time
was not complied with ; but particulars delivered to the
respondent up to the night before the trial have been
allowed.
Draper, C. J. A.— I am embarrassed by the considera-
tion that if these new particulars, or some of them are
sustained, they would be of vital import. And on' the
other han.l, the order being made on. I must assume,
sufficient grounds, unless some sufficient reason-beyond
the delay in delivering the new particulars- be shown for
neutralizing the order, I am boun<l to give effect to it.
Ihe residences of the persons named in the new particulars
are given in the scrutiny particulars, and, in fact no
prejudice is shown. The petitioner is allowed to apply
tor time to answer, and the indulgence now asked is
granted on the terms of payment of such costs as may
be occasioned to the petitioner by the granting of thiis
application. "
During the cross-examination of a witness called by the
petitioner, on the case against the respondent, the follow-
ing evidence was given :
William Peters : I live at Victoria Road
Gross-examined : I kept my tavern open on polling day!
and sold liquor as usual. There was no polling place within
i miles of my house, and I «a^ told that I need not shut
It. [The evidence on which Pet. is was held to be an agent
ot the petitioner is omitted].
MrMaclennan, 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.
li !
PROVINCIAL ELECTIONS. ^ r^ jj
Mr BoicUhee: Peters was called as a witness on th .•
...aoe the' ts:e:;: •;:::.•'"*'■'- -^ «- "''»-
D«APER, C. J. A._It is not on the record thaf r
nnd, in anv shane ■ »«.. ...„ , letoru cnat r can
it there. ^ ' ' ''"' ""^ application nmde to put
The evidence affecting the result of f J,. ] .•
follows : * ^* *"^ election M'as as
Malcolm McDovnnll ■ T „,„ i o-
conk about 2 or 3 ; 'onTh '\f""Pr'^ ^-^^^^ ^^ ^^^o-
« miles from anv ^^ollin . ^ ^T ^'^ ' "^"' ^^^^^ ^ or
WKirkvillet^si^illfTtid^
in the bar-room • some of f h. "* ''^ P""'^*^»«
Be»„ter.,„ere,„UWnlX:r4™rLt--
evidence: "xUr Marlon 1 ,^ ! P^'^'^**' *'^^ a^«ve
«^e charge Is n^lt ^on: ^ttt^!^;^ T' ^"^^'' ^
ceived it subject to the object on Vr^f't ^ ^*^-
"oting this at the time ; bu nlViL "'' '^''^^ '''
reminded of it bv Mr IVr«.r ? August , being
that it was so but not ^ '"' ' ^^^" ^ ^ecollectioJ
the moment. I dM^: tht til Lf / '^' ^-^ ^^ ^^
ance."J "'"'^ ^* «* any great import-
»elve,, the presumption ™2t • 7 ' '° """'P *™-
^en *„„, on eheLasioT^tlTSlnL'^tr-'
1875.]
NORTH VICTORIA.
257
election was as
The Court was the-> adjourned until the 18th Auffust
as
Draper C. J. A.-The unsuccessful candidate, Duncan
McRae. xs the petitioner, and the respondent. John Davll
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 lein^tC
respondents uncle. Mooney promised to write anl o-et
I rt H ''' ''^''^- ^*"*«"vards Coulter stw
responden and Ellis together, and again referred to this
aun. Ellis said that respondent was not a member of
he firm when this claim arose (which was proved to bo
th case . Respondent said he would write to his uncle,
and f ,t ^v'a.s right his uncle would no doubt pay it
Coulter and Hobden (not Hodgson, as stated in the par-
ticulars) voted tor 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
irttcha^f'^' -"'"--"->■ '--'--
The next charge relates to an oyster supper at Buck's
the Town Hail-about five minutes' walk from the hotel
After this meeting was ovei some of the respondent's
uends remained together consulting about the election
boaided There it was proposed to have an ovster supper
which Frederick J. Shove, one of the partv. Ordered.' He
) ■
;
;
!(
1
'.1
j
I ill
r .ii
258
PROVINCIAL ELECTIONS.
"II , ■ r,
fA.D.
said he had been working hard for the respondent durini.
the day, and needed refreshment. Respondent had r*"
"ously gone to his own room, and Shovf „v," d Wm"^";
come down and join them. Eespondent was JilaZ^,
and deehned, bnt at the same time he urged Shovetodl
nolhmg to prejudice the election, an.I Shove wenrd
and seven or eight persons sat down to supper '""""■
at:: tr„s r: tjrxz ^^t 7"- -^
oystcn." It must then have been ulo * „ H '""'
me^to join them. I excused n^", f "ndC saf/ '"oS
said, Very well, 'and turned down, staii-s ><l,„
he thought the supper.,ho„ld be given t was aT"?"
standing it should be for the beL^of rer/o mtet;
respondent did not likf. th^ wUr, e ■ .i^°^^^^^^^> out
Shove thought there t.:t tZr^e^l^Trl;
be charged by Buck to respondent aCl ^^ 1"
said that he suggested this. Buck's chl wa " ^Z"
wluch was for the supper onlv ^hl f ^ ^^^'
account a day or two aShe 'ppef olT Z ^
two cents a bushel, and Shove sZTetk-^tT f7 t^'Iu^'
was the way the amount was Jtlt Sht f' • '^''
with one Lett. Buck's book-ktn , or L "f ' ^' "^
applied for payment and Shove said f ? ^"''f " ^'
of oats would cover i. HeaLostat'l '^""' ^""'^'^^
that this supper was orderpd ' ii ! "" ^'^''^^amination
HuencingBuIanTlhrXL"^^^^^^^^^^
be charged a3 oats and tW i ' ° "■''"='■'' «« '»
bar-keener it sho;ut„::i^V:::j™f=<' -* the
his evidence by savi„„ « «" ' ™'' '"^ '=™cluded
-pendent, I IlZZ^tjll Tw r*'"^ '" "^^ '"'
o.r.freshment. !i„tendedll?:„riXt^-
'*~?SI?wh?'*'"»'w
^S- fA.D.
respondent during
spondent had pre-
ve invited him to
i^as half undressed
ii-ged Shove to do
hove went down,
supper.
ting this to the
'■hen Shove came
oad of oats ?" I
said, " There are
? to have some
3-111. He invited
he said, " Can't
■ he could. He
i- Shove swore
' was an under-
espondent, but
g refreshment,
that it should
of oats. Shove
?e was $13.20,
made up the
s were thirty-
i thought that
ve made it up
f- tender. He
r-one bushels
-examination
hought of in-
im (Shove) to
the election,
jters were to
'd with the
le concluded
r all day for
t to pay for
e it charged
1875.]
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 .S3, 20 would have been ample
payment for the supper. He heard a talk about oats
after the supper was mentioned. Gaynor, one of the party
who had been at the meeting, produced a paper on 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 h-oia
seeing respondent, he stated that respondent liad said,
"Whatever Jim says." The witness understood tliat he-
was meaut by " Jim."
The particular to support which the foregoing evidence
was given, is that one Frederick Shove, of the%illag.^ 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
respondertt, who was just going to bed, to invite him to
join them, concluding that if he accepted the invitation
lie would pay the bill. The respondent very prudently
dec lined, coupUng the refusal with a caution against anV
18 o J
^^
260
1:1'
I i
n i
fit
III
PROVINCIAL ELECTIONS.
^"n- I .suspect the bar-k et t ?, ''^f ^^^""^ ^o^'
or payment, though scarcelTL th ""^'^ '"^ ^^«^«
f eannot find that^Shove ever 1^ TT °*" ^^3.20, for
ent. agent or, even on ShlvLT ^"^ '' ^' ^-^^P^^d-
-spondent gave him .cZJltZ^T'^T'' *^^* *^«
- his agent on this .special occasio7r t"'''"'^" *^ ^«*
conduct and his account of thT .. 1^'"^ ^' ^^«^«'«
^'ence does not prove this oh ^^*'''' ^ '^'"'^^^ ^is evi-
^^-uml fo. sustaining rihf''; ^^^ P^ble
that Shove said to him, "Can't J; ^T.^''"''^ '^^^'^^^^^
and the respondent answered -'Hel^.P'^^ ''' "^"^ ^"
i-ihs's evidence of what Sh. ''"^^'^ ^'« «ould." Mr
of the result of his Ztn ''" ^^''^^" '^^ ^-'"^ ^'own
-t sustain shovr:: ;;:nrt- ^r^^^- ^^-^ ^-
to have said or done anyth „. i^ '"''■ t^'^ ^^^^« appear
authorizing the supper to hp n^7 1^^''^ *" ''^^^^ing or
P-sents heordere^t :2 r'"^^ ^" ^^^t. Shove%"
;-7- J think it wouldlrln T' "P *^ ^-^Pondentl
^old this supper to be a violation T' ""^^^-"^^-^ to
Eiection Law of 1868. MrShov 1 '''*^^" '' ^^ the
hehl sufficient as a-^ainst J I 7 ' ^'"^""^'^ ""ght be
Penalt3^ mentioned if the J- f' '" '^"'^^^^ him to the
'0 avoid the election Ffitf f wr "' ''^^ ^«^' ^"t no
part of the case. ^"'^ ^''' ^^'^ respondent in this
f ^^ t;:^:;;^^^ ;;f ^ Andrew Washington
teams^ horses and vehicles of P ^ '"^ ^"^^^ ^^^'^^ the
Mitchell to convey voters to th 7^^' ^''^'^ -"^ Davie
';orsehire,furnisldth lt2 V"'''"'"'*'"^^^^^^^
'7;V«/hem to induce theTntf : t'7 '^""^' ^^ ^-
The fagts, as well as f can .!7 /°" ^'^•^Pondent.
'^^P^^pB^sriGri :
LA.D.
arrangement with
"P the account for
't looked to Shove
sum of $13.20, for
ed to be respond-
atement, that the
i authority to act
ooking at Shove's
' 1 think his evi-
he only plausible
dent's statement
» pay for them ?"
'it Jie could." Mr.
II he came down,
'join them, does'
oes Ellis appear
to ordering or
fact. Shove re-
to respondent's
construction to
tion 61 of the
lage might be
-ct him to the
'e Act, but not
'ndent in this
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 they
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 otf 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 And that Washington was
acting as an agent for respondent, nor that Washington
was guilty of a breach of either the 61st or the 71st 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 offered a
sum of money to the said Mrs. McDonald to use in cor-
rupt practices.
I find that Malcolm McDougall wp.s an agent of the re-
spondent. I airive 3^ this conclusion upon the statements
contained in his , xaiai.v.. Won before the County Judge,
and McDougall'n rvidonce confirms me in it. In regard to
Simpson's statemc^it, M-Dougall swore that he met him
on the road on iu. polling day. He had no doubt he
asked him to ^te for respondent. He (Simpson) said he
was going lu vote for McRae, and that he (McDougall)
Hi
262
PROVINCrAL ELECTIONS
■» woald ,ote for JicRa. "»"-">''' 1» toJd McDou„ai|
S:t "» ™^^ - '■"•« »* "■'" "■'■' *"' ««■
Joan of money, or offer Z ^^'""''^ '^^« "o gift or
^warrantable construction 'ontv i \^"''''^ ""^ ""'
another ti„.e, and thinrwo^M T. ^i '" "^"'^' ^^ '-
then^ to „„po,fc ,„ „„,,:, J^'j^^f ^^^ '»f e nght," to hold
«a.d nothing to hin^CsC;^^^^^^^^^^^ «-th "that he
by way of pro,„i,e or other .Tsi " '"If ^^'" *« ^^ange,
«icleration. "'^'ler^vIse, is entitled to .some eon
ekc.ors-„a„,J, t ' -'''''7'''' "o ''"•'/Sta
j^^w to „,, ,.„ e„..,.„pTp:L:;:7 "^ '^^ ^-^^ »- *-
™^.- of John MeD al^: tr,, «- «cRae. a wiSC J
""" h.s acquaintance witl ,? " "'W'" '* inferred
H» «<i -he was in reduced li 1 1' T*'' '«"■ ™™ 'e
»™ej.-he thought Jsltle, :*;T »' *« »'-
■'"""« '" '^'^^ i^ «'» «d h tlu "' *^ ^-^ ->-
"ng. but did not take it.
* ' >*m%tii^lSG^iS'^!Sm*^_^„
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 be 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
with 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. McDouf^all 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 S2..50, and that is shown to be for the hirin*^ on
Saturday by the testimony of both witnesses, and to have
been paid on Saturday night. This appears to me to
disprove the chmrge of bribery; there is no particular
charging the hiring or paying for the conveying of Sickles
264
PROVmciAL ELECTIOXS.
to the polls on Mnn.i ., lA.D,
Whom hf f roc* 11 " ' 'i<^'fc know uri, A XI ^
"™'<i"« -ni,i„;r„;„*: ,^; - not ,•„ ,„. L'to':?
The respondent '« . V " ^^^'' or wine
«P'nion, which l\yTr T^^'^'^P'^'^^^n^yZt^^^^^^
^-« «uffieientJy stlw IT*' *''"* ^^^^^^ouZllZ
Provesalsothafh . '^ ''^ ^i« own evirl ^'"'^
expression Tn f , ."^^- ^ ^ad not note,? fk- " ^^^a
It is j^ * country
'~ttt*^-''-rt."'-*°"' *^ -pond'
1875.J
NORTH ^■. iCTOUIA.
265
1 That petitioner, on tiie (3th January, at Victoria R«a.l
Station, provi.led drink an.l other entertainment at his
own expense for a meeting of electors assemble.! for the
purpose of promoting his election, contrary to the 61st
section of the Election Law of 1868. Hector Camphell
proved hat 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
.nee ing a number of them came to Campbells inn, and
drink was given to them by order of Dalglish, who said
petitioner would pay for it. During the same afternoon
Dalghsh 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. Richar,! Killingsworth
swore that he was present when the petitioner asked Camp-
bell it there was anything in the charge relating to treatincr
at his tavern on his (petitioner's) behalf, and Campbefl
said there was no treating, and that he did not see peti-
tioner there. The petitioner,. the last witness called bv
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.
lie said he read the charge respecting the treat at C.-mp-
bell s to him (C), who said there was no such thin--tliat
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
Ualghsh accompanied him (driving in the sleigh) on some
ot 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
tavor on this charge.
266
PROVINCIAL ELECTIONS.
[a.d.
2. Nextpoine.sMcIlr„v'scasf. Tl.
words : .. John M..,-..- an llrcM 7rit''."'"" '^' " '" *h«««
yen), the financial alto/^f. ^^^"•^'^^'^ (AfcFad-
f- the petitioner, b;X;ittp o;"'"^' '"" ^" -'''
the cutti.K. of tiuiher unon ^ . ?r ^"""S'^^^'^^ni for
cession of the tow h) ip of r " '' '" *^« '^'^^ <^on.
Mclhoy." ^ "^ ^'^'■•'^" - the «aid Francis
It was proved that McIIrov liad Kx,
wnting, which was n.t prodl^dtiTtr^ T""^"'
upon the lot na,ned. and that unde t^^ ""'" ''^^^^
and hasswood had been cut ^* *" t^" Pme timber
tin.ber onlv, and tifat t" L 'f^ „, "1 t\ ''^' ^^"^
inserted before "timber' %[■ ^ should have been
upwards of two years h^fn/T T'*"^'""^"* '''''' '"^de
and bass had all berneut a . '''"'^' ^"'' *'^^' P"^«
the petitioner clain^d to have " T/'n" ^^^^^^ stated,
days before a meeting of thl ' ;;f ^ ^" '}l ^^^^^ ^wo
ville, Merry and Gibson r ^.^"''' ^"^^^^'^ ^*^ Kirk-
Mellroy wlfo he intend dt'";*,'"^ '7^^'''^^^' -^ed
not know that he shou, *, f n°'' ""^' ^^'^ ''^'^ '^« ^id
difference between him and ' ' '"' ''^^'^ ^^•^■» ^^ *he
he thought petition la t^^:^^^^^ ^-y said
the Kirk ville meeting was over vTf '''"' ^' ^^*«^-
of petitioner's clerks toTMcl,: f ^■''^' ^^' "^^ ^"'^
'natter. Mcllroy slid if ^ '' ^''' "'^'^ "^^"^^ "^^^
claim to the restVhVtmb!"" "t," ^^^'^ "P h-
and have no hard feeW «?' , Tf ''""^^ '^^^ ^* ^l^are
had previously t:dMt;\;'7*;^^^ T'''" '"''''•^y
would give up all clahn to t^t u '" *''^* ^^ f^^^'tioner
then cut, he ^ellro'T wou d tt ' ^'"^^ "'^* ^« ^^^
either then or soon after m"ti ^^ ^^^^"^'^ ^im ; and
paper in the following ^1^%^ ''''\ ''^^^^^^ ^
-thatisiea^--t^n:^--t.h^
1875.]
NOHTH VICTORFA,
267
con. in the town.sbip oF Carden, county <.f Victoria " (Sd )
" Duncan Mc-Rae, per A. McFa.!ycn, witness."
John Merry testified that he desire.l to help petitioner
nnd went to see Mcliroy about his vote. Ho knew nothino'
then ot the difficulty about the timber Mellrov told him
jg he generally supported petitioner. saw petitioner,
^ and told bun or xVIcFadyen what M. . had said to him
lie afterwards heard that there had l-een a .settlement:
Ihe petitioner in his evidence .said as U, this matter- " 1
had a transaction with McIIroy about timber. I told him
had no claim except for the pine and basswood. Merry
<ed me on the night of the meeting if I was goin-^ to
.iaim any more of Mcllroy's timber, and I .said I did not
intend to cut any more of it. I do not remember that
Mcladyen or Gibson said anything about it. I know
nothing about the paper mentioned by McIlrov. I never
heard of it until last Monday, when I got the particulars,
Mcladyen 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 foi- and accepted by him. The evidence
18 conclusive as to McFa.lyen having delivered the assur-
ance that Mcliroy would not in that event oppo,se the
petitioner, and as to his having been an agent of the
petitioner. *
A \^;''^;it''^'''' *^'^* ^^' petitioner, through his agent,
Archibald McFadyen, ^vas 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-
^rence oi ruling between the treating by Malcolm Mc-
IJougall, an agent of the respondent, at Coboconk on poll-
ing day, and the selling of liquor o. polling day by Wm
Peters, an agent of the petitionee at Victoria Road The
evidence as to the latter is give., on p 2.35
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(716)«72-4S03
i'lri'i
2(]S
I'HOVIXCI.VL ELECTIONS.
[a. I).
ad.led the tollowmj,' to his juilg,„ent :
Drape., C. J. A.-This conchision appeare.l to .ne to
remler ,t «nnece,s.sP.,y to fona an opinion upon the two
.XMuaining .natters advanced hy way of recrin>ination. It
>.s n.a.nly .n the interest of electors that tins t,c .juonu.
accusation ,s pernutted, in order to prevent a successful
petitioner Iron, ohtaininj? the vacated seat if !«> also has
violated any provision of the Electif)n Law.
However, in consequence of a reference made by one
ot the learne.1 counsi'l to an apparent inconsistency l.e-
tween my ruling in the ColK,conk treating case and the
keeping open on polling day of his tavern l.y Willian,
I'etes I enlarged the time for pronouncing my Hnal
C..U usion until to.,lay. I must say it struck'me 'that ^t
Hould be an e.xtreiue case if I should rind myself cou-
pe led to hold that Peters (though oa election agent "if
petitioner), being hiu.self the tavern-keeper and sellin-.
><l»"r as usual m the cour.se 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 poUin..
day was shown to exist. Moreover, I noticed that Peters
swore (as It justifying his acts) that there was no polling
place within three miles of his hou.se. I have been told
that there is an erroneous i.lea abr(,ad that the law does
not remler nece.s.sary the closing a tavern at that distance
onoin.'7 ^"^7'"".' '"'^ ^«I^«"g'^'l"^ evidence .seems
to point to a similar mistake.
„";tri. *"■"'"' '"''^ '''"^' '^^'^''^'■•^^ *« *he petitioner
upon McIlroy,s case. I can .see no object in going into
Pete case, and my refu.sal to receive evidence to support
could be no .lotriment or hindmnce to the re.spcadent.
On a broad view of the ca,se, I am of opinion that the
evidence m the Coboconk case was properly received
^.ough It may be doubtful. Had an appliLion been
made to me in regular form to add a particular embracin-^
lilil;i,
1875.]
CAimWELL.
269
it, I think that (always on rcasonahU' conditions) I could
not have refused; and if so — the evii'.ance I )eing conclu-
sive to prove it, and given hy an appaiently very trust-
worthy witness — the error njsolves itself into one of form.
I adhere to my conclusion on the charge avoiding the
election, and also to that upon Mcllroy's case as against
the petitioner. It is no pi'eju<lice to his case that the
other charges are not pronoirnced upon.
(9 Journal Lcgis. Asscm., 1875-6, p. 13.)
CARDWELL.
Befoke Chief Justice Dhapku.
Brami'ton, 7th nnd 1311, Snihmlur imo.
Francis O'Callaghan, PctUioticr, v. Jcjhn Flesher,
lu'qmndvnt.
Acta ofmjenry — HoKliliti/ to oiiptmiin caniltilule — Corrupt )>ra-'tici'».
One S., who (leaired nomiimtimi as a, eainlidate by ii Reform Convention,
Wits not nominated, and tliereupon, from hostility to the convention
and its nom;noe, opposed the candiditte of the convention, wiiiuli there-
by hud the eti'cct of supporting the respondent. At tiie close of the
noil, the respondent publicly thiinkcd S. for beinj,' instrumental in
bringing about his electi<m. 8. owned a siiop and taveni, but tiie
license Tor the latter was in his clerk's mime ; and during the polling
hours on polling day spirituous liciuors were sold and given in the
shop and tavern.
Uilil, that what was done by .S. at the election was in pursuance of a
hostile feeling against th>. convention and its candidate, and did not
constitute him an agent of the respondent.
The petition contained the usual chaig'.'s ot corru))t
practices.
Mr. Bethune 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, wa.s an agent of the respondent. That his hotel
llllfN:
I "*'
i i
iW
270
J'llOVINCIAL ELECTIONS.
[A.n.
Tl.e c.icuiM,stancc..s are iH-cuIiar.
A convention of tho eleetoiN of f l. • r
candidate ^„. 'thi; d i '' 'l^lf *'"'; "^ "-"'"«^^ t''-'
eimseno, otherwise a,) If ^ " ''^''^"K^t- had been
pete.s.a.,,.a.;;:;n;^ :^^^
nominee. He was a u-..l IL '"" "'•'"'•' ''^' *»'"
P..... a,.,, «;:r,,::;S;;r "«:":::;?;: '':•""■■■■
St""' a,„l a hotel in the villa™ ,"fli '''"""
'.""» "-ugLout the ,.i,ii„„. Ti:_ "3 "'" ' '"■
'■"•■ lum (In the. c„„vo ,t ,) , r, ■ "™''''' ™'^-'
■■<liow..,l up n,„ c„,,,,. ' ' , '" ''f' "" "t'l" l" vote.. 1
B-vi™. '. !i r t „r ::u''r';':,'" '■''^■'«'"-»'
.ali„„ „f tlu. c.„„vl, . , , "■"'"'"' ■" *f™' M.-
: -■-""''^■'■-^™*"'"'-«'.n::L','rf°-'-
versation witli th.. respondent aff..,. R .? ''^d^con-
cinsa-exaniination he .said "If ,..o ] !.. ^-^" '"''
^'J'o was the ncnine? ^ H ' "° ^'"''''■•''"'^*^ *« •»^'
allowed to vote in r on r ^^"r^"''""" ^''"P^^ «'-^'
I was never at; "d^r^^ ''' ^ ^'^""^^ P^'^'-b".
nswced except by one Jones. I had notliinu
it
1875.]
CAR DWELL,
271
todowithth(.re.spon.lfnt in tryiufr to procu.o his election
eitlu'i for his party's salie or his oun."
Wiiish was a clerk an.! employe.- of Small in the store
an.l l.usines,s, and occasionally in the har of the hotel. H,.
wan also the telejrraph operator, tlu- tele-raph ..the.. i,,.i„,r
in the .store, which, with the hotel (all fonninjr one huil.N
nijr), was hurnt down in April last. Tl... hotel Iieen.se was
taken out in Wal.shs name. Spiritu.Kis li,,uors were sol.l
: m the shop as well as in the hotel. Walsh .sai.l he was a
Conservative, an.l was from the first fevorahle to the
resp.,n<lent, an.l sp..ke to .,th..rs in his fav..r an.l to .rot
v.)tes for him, an.l wrote ..ne or tw.. letters with the .sam.-
ohject. He .spoke t.) the re,sp..n.lent ahout the el..eti..n
an.l was his scrutineerin- a-ent at the poll at Ballycroy
nmler an appoiiitment sij^ne.l l,y ,. .p„n.lc.„t, who left
three app.Mntments in l.Iank, sijr.ie.l l.y him, with Walsh
to Ik. use.l if nece.s,sary. ,so tliat the respon. K-nt mi^rht al waAs
have an a-ent at the p..II; hut they were not u.se.l. as h,-
(Walsh) was not ih.sent fn.m the poll m.)re than five
Hunutes. The poll was taken in a separate huil.lin.r very
nmv the shop ami hotel. He was at the n.eethi^. at
lottenham, in the ^)wnship of Tecum.seth. Small took
hna there, an.l S.nall ma.K. a .spe.^ch t.. which a Mr Jones
rephe.l Small was showinjr „p the convention, an.l
accused Jones of treachery. Small was. as Walsh un.ler-
stood, desirous of defeatuig Bowles. Walsh tol.l re.spon-l-
ent of the di.s,satislaction of the Roman Catholics at the
unfan- exclusion of Small, an.l that he th..Uf,d)t this .lis-
satistactmn improve.1 respon.lent's pr.)spects. After the
result of the polling was known, an-l late in the eveuin.' of
polhng .lay.the re.spon.lent returne.l thanks f.)r hiselectl.m
an<l .said he was thankful to Snml! for hein- instrumental
m bringnig about his election, which remark may have
been made in irony, as Small ha.l supporte.l B.,wles at a
previous elMction. On cro.ss-examination h.e ( Walsh) a.l.le.l,
" I think Small expected the nomination, and I under-'
stood he was thrown out becau.se he was a Roman
Catholic. There was a breach of faith among the mem-
I
\i^
272
PKOVINurAI. ELECTIONS.
[a.u.
' iVi
J>.'is of the R«.f.)ii„ convention; there was a chan.'.
U'tween the open an.l the Heciet voting, and Mr. Sn.alls
feeliiijr arose from this."
I liave set out this evidence with some particnlaritv
l>eoause ui,.)n it is founded an ar^r,„„ent that it maintains
the assertion that Small ought to he reganle.l as an a.rent
tor the respondent as to this election ; that the respondent
mustconse<iuently he hound hy his acts, an.l that if lie is
I)r.)ved to have heen guilty of ornipt practices, they will
attach upon the respondent a.s the acts of his agent an.l
will avoid the electi.m. I will take the .piestlon upon
the assumption that Small was guilty of corrupt practices
against the election laws-a fact in reality not .lispute.l
Small hy his own evi.ler.ce,as well as hy circumstances
appearnig which indirectly hut strongly lea.l to the saint-
result, was a well-kn.)wn member of the Iletorm party :
n.>thing transpire.l .luring the whole trial to put this'i
doul>t, an.l not an expressi.m was .Irawn from him in his
examination to raise a doubt that hi.s political Opinions
were unchanged. He a.lmitted that he had a conversation
with the respon.lent, hut not about the election ; that hv
ha.l toM him to see y.)ung Walsh, who would give him
s.)me information. The respondent did see Walsh, who
iiiforme.l him of the .lissatisfaction of some of the Roman
CJatholics at the ti-eatment of Small hy the convention, an.l
that, in Walsh's opinion, this was favorable to the resp'on.l-
ent's success ; but however well founded that young man's
«)I»inion, I cannot discover in it any proof that Small ha.l
become the respon.lent's agent for the election, or that
respon.lent ha.l so consi.lered him. Mr. Small wa,s dis-
appointed in an object which he desired an.l expected t<j
have obtaine.1 ; he was ii-ritated because (whether rightly
or not) he thought there ha«l been treachery in the'^con-
<luct of some on whom he had relied a,s friends, antl that
unfair means had been re.sorted to, by which one of those
fi-ien.ls accepte.l and occupied the very po.sition which he
coveted ; and he resented it not merely in word.s, but in
the acts which he stated in evidence'; and it is to he
ii li
IONS. [A.D.
iluTo was a clian;,'(
ing, and Mr. Small's
1 HOiue particnlaiity,
unt that it niaintaiiis
•egarded a.s an a<,'i'iit
; that the respondent
cts, and that if he is
; practices, they will
ts of his agent, and
' the (juestion upon
ofcornipt practices
I'ality not dispute. I
as Uy circunistances
^dy lead to the same
the Reform party :
trial to put this i-
wn from him in his
9 political opinions
had a convei-sation
II' election ; that he
10 would give liim
id see Walsh, who
some of the Roman
;he convention, and
ible to the respond -
1 that young mans
)of that Small Imil
3 election, or that
[r. Small was dis-
!d and expected to
e (whether rightly
achery in the con-
i frientis, and that
idiich one of those
position winch he
' in words, but in
; and it is to i)e
1875.]
CAHnWELI,.
27:^
n-marked that not another witness Imt him.-i»df proves anv
net on whieli reliance has been phucd to prove his agency.
It is perfectly true that everything he did und^r the
influence of these feelings which was pivju-lieial to the
nominee of the convention was favorable to the respond-
ent ; that every obstruction placerl in the path of the one
was pro tnntn a clearing of the way for theoth.;r ; but, for
the purposes of this (jm-stion, J must rej-ard the motive
which brovight about the acts relied ui)on. I think I have
th.' key to this whole conduct, and that I have shown
what (h)minating inHuenee governed him. All that he
is proved to have done is accounted for liy his hostilitv
towards the convention and their nominee,' while there is
really no direct evidence of his having .lone anything
which furnishes the ordinary pioof fn.ni which agency i"^
inferred. He .lid not canvass for the respon.lent either with
the respondent or alone. Heattended no meetings calle.l by
the respon. lent—for the meeting at Tottenham, if not 'a
Reform meeting, wa.sa mi.xe.l meeting, ami his speech at it
was hostile to the convention an.l its nominee on acc.unt .)f
their c(mduct towards him. He d..es 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 Hghting on
purely personal grounds against the Reform candi.latt" he
does not change his opinions as a Reformer. I f i ^ely grant
that his con.luct from a party stand-point was c'^surd;
but he was an angry man, listening to the prom s of
disappointed and exciting feelings of wounde.l .self-e m ;
but I can Hn.l no proof in it of hisagencv in fav.n- ot the
re,spon.lent; nor can I fa^sten upon him a character which
I feel convinced he never meant to assume. I can .juite
ujulenstand Small's re.solve to oppose Bowles, and to .h,
all that he could to defeat him, although in .so doi„j, l,e
was helping the opposite party, without desiiing"the
success of Bowies' opponent on any other groun.l than
hostdity to Bowles, and disregarding all other con.sequences
of his gratifying that hostility ; but I cannot convert such
a course into an agency which is to affect a party who
274
i'KoVIXciAI, KI.ECTIONH. r^
h anything, .lone l,v S, , :'""•''""^^" '^ 'vfibet...!
♦^-iin^r against a„oC" wLcH;""" "' ? ""•''^^'^•"
party. ' ' "'"'''' "'^' respoiKlent was „o
I iiiiiHt tlieref.,ri. (lismiss th.. „ ^•*-
'•^•a-n which will i i^; '^- P^-t't.on ; andean H„.l „„
WEST PETEHBORo.
fo
'li
Bef.,hk Chief Ji-.stice Duapeh
Bekc.uk the Co.ht of Appeal
W,u,,,>, „,„„,„, «c,,rr, y„„ ,. „„„„^^ ^^,_^^_^^.^
'"'.--r,,,,,,,^ ,,,,,,;,,,_,,;.;;, ;;';;j~M;w » .,,,„.„-,,,,, ,;,„„;";;'
ac as He,...t,„c.er at a .Ii«tant polC plajf a J"'*;" "" "Pr'oi'.tM.ent
vot::i^^fciz;^^r^- -r r^^ ^tti -i;^ -^
"Pon tl.e duties of «cru Leer ,)?. a ' ""'. '^^""'e'l witl.out e, teri,,^;
aUe facts fo,. the Court^Ap;^",'' 'l"'^**'"" "^ J"^' reserve.! onTh?
no costs in appeal. 'swnces, the Court gave tlie .•espoiuleilt
^lONH.
[a. I),
tlio tliff,'i-enco hetwoin
^i'on.I.'i.t to b(. affect..,|
•siiaiie*! of ft vin.Jietiv,.
tl'<- rospon.lenfc was 1,0
1.S75.]
WEST PETKUHOIl ).
27ry
Id
itioii ; ftiwl can tin. I ,
refusing' to ;L,'ivu tli,.
wm.. l«7.-)-G. p. 20.)
RO.
l^KAI'EH.
W<A AuijuM, 1875,
Appeal.
^UEoiu;EALBEirrrs
lis agency lias expire.! is
'onoi, oiiesi.leiHnietl.y
"'' 'wsoi-tioii is not sulK.
I'ployniont of capital in
'lonestly made, is „„t
would include a more
^ soWliis property in
saesament Roll by tlu.
'•«spondeiit--„l,„ was
vcnan appointment to
also a certiHcate from
. to enable T. to vote
eer at which place T
"led without entering
f law reserved on the
Pt practice under the
' gave the respondent
Til.' pitition containetl the usiml cliai^eM ot* corrupt
practices.
.»//■. Hntor Cameron, Q.C., and Mr. 11. II. Smith for
; jietitionur.
% Mr. Jirf/iune and Mr. D. W. Dumhlc for respoiuli-nt.
During tlit- c.xainiiuition of a witness respecting his
I uccount for li(|uors .supplied to voters on polling day,
I which he preseiit.'il to one Peter Hamilton, an agent of
■* the resp(jndent, on the day after the election,
.^ Mr. Uimiron asked what Hamilton .sai.l to the witne.ss
;;i when lie presented the account to him the day after the
J election.
Drai'EH, C. J. A.— I retuse to allow the i|Ucstion. Hain-
,v| iltons agency e.xi)ired with the election. Kven if he
^ asserted soint; fact of importance Itearing on the issue, his
I statement of that fact would not he evidence to charge
the i'esj)on<leut. As to mere admissions, there can be no
douht ; as to mattei-s of fact, Hamilton may he called.
The evi.lence on the cliarges of corrupt pi-actices sh<jwed
that two persons, Cardinelleaiul La Plante, who ha.l car
vassed among the Fi-ench voters, had treated .several pe,
sonM in taverns during polling hours on polling day. The
evidence on thi' other chargers is .set out in the judgment.
Dk.vpeu, C. J. A.-At theclo.se of the petitioner's ca,se,
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 a.^-nts
Iiad violated tlie ({(Jth section of :i2 Vic, c. 21, and conse-
Muently that the respondent could not retain the seat.
He contended, however, that whatever was done by these
ligents 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
tlie counsel on the other side to state on which of them
ho relied.
19
176
PROVINCIAL ELEimONH.
[a.d
1
Mr. CaiiH'ion stated tUnt I.,. . i- i
cular. chur,.-,.,, that 1, ^ , h-""' ;'" ^''« ~' r>H. t,
wouM v.,t„ for |,i,„. * "' '"« *''^' •'^"""IKT, if |„
for lm„. *'"" ""'l'l"."".nt if ho «-„„l,l ,.,„,
■^"v„ to tu. pL'JL ;',:':,':;'■'; ''';■"' •
fct-'ri'liiij,' to work if th \^ , '^ ^^'^' *''•'" '"•
^ie';:i:;>:!::';;;!r;;rrr^^"''^^
that one Fre.leric.k T 1 ""'"" * '^'''- '^ ''^'••tiHc.U,.
-ondwaniof; er.: ;;;:::,r"''^'' ^ ^"^'^ - ^'^
on the votc.r.V li.st th .! ;;''"''' ''''^ "'"'''' ''Pl»'«'i''^'
I-tyin...peetof fJ:.;: '""■^^''-^'•tl.pn.
«*i'i Taylor a c> orll.k .' '"''"' '" »'^'"'^' ^<' ^'"■
Imvh., the voters .^tri'^'llXr-^"''''"^
not intended that th.- s,.i.I T i . ' '''""'^a^ it wa^
Mona^han. ' "' "'^' •^'"'' l'*'"'»^' Place in North
him for his sunnort h.. , r 7'''",^'"- '"t'spondent asktMl
minciandadS ^t,:^:f'r'"'r'"'^''^"'''"^
>"" -ork." an.l that re I", t ^7', '"'^' >'"" ^^"' ^-•..
work for the sunuuer T '" '"'"'•' ^''^« '''"'
^unuuu. ihe conve,-sati -n was talked of
K<TIf)NH.
[a.i.
'''•'•I on the Mocon.l pinti.
^^'''••••Itc.c.m. John Diak,
'"liij^ tliu .suiniiifr. if |„
'ai-jfiii^r that iv.s|,„n,I,.,„
ymont if ho woul.I v..t,
'HWiiK that iv.si,.„„|,,„
"'l>l'>ymt'nt .iuiinjr tli,
'•' 'lis iiiHut-ncf for ,,,.
""\'iii^' that rcspoM. Inn
■''lliii,ir «'xiK'iiNf.s of on,
Poti'iLoro, f,„,„ (|„„
'' l>'ilt.'y was then in.
'■y Would vote for n-
)»'11.S('8.
;'••' i!,'i.i;Lr a frau.hji.ni
iii^'OrticeraeiTtiHcat.
title.l to vote in tlic
•<».hi.H name appeal-in-
pfirttMl with the pn.- ,
«<' appeared; an.l i„ :
ice, in •,nviiig to tli.
fc to act as ajrent f(.i
Ht oil,, of tlie poll-
li Moiia^rhan, for tli.
<>'• to vote, without
'liiii, whereas it wa-
•^"I'l, noi- ,li,l I,,., ,1,.,
»"'»?,' place in Nortli
'ii»g the evidence ot'
't' resptjtident askoi!
t'l not made up his
i'lle, you will ^riw
le wouhl give him
ti->n was talked of,
WEST I'ETERIIOIiO.
277
%n<l four or five weeks afUTwanls he wan applied to to
•tite what hf! could prove, and he put hi.s mark to a
■Mtement drawn up from his answer to this impjiry. He
B(iae.| on the trial that he hoped, as times weiv <lull. to
. n>mrr work for the ensuing summer. and that he told his
^tl.en employer (Mr. (JIark), a few minutes aft..r respondent
hft, that the respondent had aske.l him for his vote and
had -;//;,vv/ him work for next smunu-r, which is stronger
tlmn his pivsent statement. The respondent swoiv that
wh..n he asked Drak.. for his voU'. that he promised so
rc.iddy that he doul.ted if Drake knew him— that Drake
did not even ask him " If I'm idle," etc., an.l that not a
word passe.l Iwtween them ,,r, the sul.j..ct of respomh-nt's
,-ivmg him work. Several witne.s.ses were e.vamined with
1. lerence to Dmk.!s character for truthfulne.s.s. In answer
to their unfavoral.le statements, a numher of persons
^ ^vviv ealle.l who amply sustained him, B«t I am .p.ite
* el.'ar that in the face of the respondent's positive denial
m I cannot tak.- Drakes uncorrohomted a.ssertion as sutH-
eient to su.stain this personal charge.
Barrett's evidence is al.so ivlied on to su.stain another
I)oi-sonal charge. He swore that resp(,ndent asked him
tor Ins vote, and he replie<l that he had promised Scott
Kespondent said that .Sett .lid not give any work. He
liear.| respon.|..nt, at ;. miblic meeting at the Town Hall
say he ha.l l..ts of w. -i. on han-l, an.l plenty of m.mev to
spend on it, an.l he would employ workmen as .soon a.s the
electujn was ovei-. His statement of a pn.mi.se of the re-
.siK)n.l..nt to give him work in return for the exercise of
li.i uiliuence at the election is po.sitively denied l.y the
:vspondent. I cann.)t on such a state of evidence find
tliat this per,soiiaI charge is proved. I may rema.-k al.so
that I am not.lispose.l to treat what a can.lidate may .say
"' puhhc, to the assembled electors, before or .lurin.. an
election contest, as furnishing evi.lence of offers or pro-
"u.ses to corrupt in.livi.lual.s. An appeal t., his business
as lieing a benefit generally to the community, or to
certain cla,s.se8 of it. or to the employment of his capital
t78
'•HOVINCAL ELKCTIONH.
fA.li
'••'• «•'"•» " .nan is forhnrnt! '"'''"" •'*"''^i«-'- vv,m,!,|
^•'■•'""'^ that tl... la; !,.'•'■'"'!':' ;'-'"l'tioM of i,.,,.
""'H citriics til,. ,.i,„,.,, 1 . ,
«•"'"<•". f will ,Mvv v.n, M. . *^"''" '"" 3<'m- in.
';••'''•'• • ^••'•1 '.in. I ,ii.i „..rt,'r
''"''•■'•-^'M''nit;lt„ /tt''^ I "lo not, 1.,...-
""i>^i"i ^"-7///. ,e .vWm. I,. a,„,M ,'""'." 1'''^^'"-" '".-1 if fl...
''o^v«vor, .lo,..s not ivn.loi- if ., '' '^'"' l""^'"^'"^ n.s,.
]:'7isi..^..anass:;;;j::r:^:,r;'7^^^
•''^•t'on upon tl>o other Tl... "'"'t L.V a contru-
tor veracity wa..son.ewJmt in ' Tl ? *""'" '-^-'Putati...
a« not proven. ""P«ached. I treat tlu,s duu .r,.
I^aley's case was L'jven un I.,r *k
*• ■;■}
'M
LKCTIONH.
[A...
1M7.V]
WKHT rKTKHIUtHO.
"•'•'t.v..ftl.,.,.,.nstit,,..„,.v
'" """■•' l""liil.it.M| l.v ,i;,
"•■' l"'''''<-Mmi,.,..s wo,,','
'""">f'' *"> l»iv." tl,..,,, ,„
^'""il .•om,,,ti„„ of in.li.
;^"''''l. aii.l that law will
'"""i>*t"'v.l in a spirit .,f
'•'••^t^ <i|«.n tl„. ,.vi,|..„,,
'••• >*tHt.M| in MCH.Iv l,is
^>r.My vot,.; Itol.M.i,,,
will ;,'iv.' III.. v,„„. i„.
'"i^'-f "'I'Ht work I „,„
"""■'"'»■ 'lis ,„.o,„i';;.„
" ' 'li'l not sny to |,i,„
■ *'•»'• "K", f wonM ^n\v
' '■"^*' til" IVSJ,o,„l,.„f,
'' >*won. to uiiioiinf,.,!
'•'"*P<»n.l(.nt to ,^ot 1,1,
""• ^■'"' «-l,ic'l, I,,. „,„
't limy l,(. that th,.
''''■'"'■ ' 'I" not, how-
"" ''""''t Nvl,..tlu.r tl„.
^tatuti;. refers to the
i" "»• a Ial.o,er. It is
"l"|>Iace,",ui,lif th,.
« its t-on.striiction. it
,'■ The l>ieserit eas,.
to 'ieoi.le that point.'
if iiu-t l.y a c^ntin-
•'■ adinittu.l an im-
liis own reputation
• I treat this cha,-re
Junsej for the peti-
''f disposed of.
27!)
Kii'i|Hri(;k Taylor was put upon the roll as an elector,
ib«' ii« owner of Lot No. H, east of VVat»'r Htreet, town of
p. trrlioro, and in tlir West Kidin;;. He had hoM tins pro-
|H ity in .Fiine, Ih7+, havin; removed to Mi Isay in Oet.,
iH7:\. He had also a vote in the Kast Hidin;,'. He was
^ked to vote in that ridinjr. and wont to Peterhoro on
BaMiiday, Ulth January. Hf was at respondent's liouse
gliout four hours, l»ul, he says, had no eonv(>rsation with
.lliiii at any time respecting his votin;;. Miit he talked
fUrith KairLairn, a clerk of ivspondent, who insisted his
Vote wiH),'ood; and the sulijeetwas discussed in respond-
• ipnt's committee room hetween Fairhairii, Taylor and Lacy,
fanother of respondents clerks. Taylor saw the voter's
•^oath in the commiltee-room. That .same nifjlit Lacy.^-^t
Wiom the Ketuininjr Officer a eertiticate under the 2v,th
section of .-{Sth Victoria, under which Taylor could vote
at the electiim, at the jxillinj,' place where he was stationed
,|<luiiii« the pollinjr.hiy, and Fairhairn handed to Taylor
this eeititieate, to^rether with an appointment in writin<j,
siu'iied hy the resp,)nilent, authorizinj,' Tnvlor to act as Ids
a'^ent or scrutineer at the pollin<,' place in N-.rth Mon-
11,'hau. Taylor .said that he thou;,dit these documents were
driven to him to enable him to vote without takin-; the
voter's oath— it was .said it was i»ot likely he wouM be
JHWorn there. He went tc; North ^rona^dum with one
'■ Robinson, who was also an a-jent for res[)ond(!nt at that
polling place. They arrived at the poll before nine a.m.
. Taylor ten<lered his vote as early as he could, and the
voter's oath was not tendered to him. I'e returned to
Peterboro without even entering upon the ti'ities of re-
spondent's agent at North Monaghan, and voted in the
East Ridintr.
On the examination of the respondent upon a Judge's
order, he said, " I signed -ny 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
it
if,
i
.Ji"'''
lliwi
I!
,nli
ill !^
• 280
PROVINCIAL ELECTIONS.
Taylor was to be snnf n.,f n
J ^''^' hear it th n I «' T. ' '^""'^ '* ^ ''kely tl..
^he-efto act as ai Jt a^ J'! 7. '''^' '^ ^^^'^ ^^^ '
Saturday. Very likLT ^^'^^ ^" *''« *"'lav or
^-- ,oi„, oJit't'LiritCT^''^^^^^^^
Kobinson, who was ...v o , "'^«"'^"- He went witi,
""derstood that Z iZ ''.''""'• ^«"'^^''--
H'as good or not. I LeTth m'I''" ^'^^*''^'- ^'^ vot
in Peterboro. It i' pj^ , f j; j-j; ^'^^ ^is proper.-
«enttoNorthMonaghanIs v„ . .? '"'^' '^^^^ i^*^^' '
getting his vote in. uCuZ'T' '"" ""^ P"'"P°- <'f
was sent there for that purpose l' TFT''''' ""^* '-
;vas going to .stay there a 1 dlv / * '"P^^^*^ ^'^^
Robert Fairbairn/howevL" 7,, ? r' T '"^ *»-^'
go out as agent for respondenUo T^^":."^''^ '^'y^'^' '^>
he really thought Taylor had'' , ^""^''^'^" > «'"'
Taylor in goocffaith to go a' scrl^ ' ' '"' '''"' ^^ ^'^'^^^
thought of getting a votelThJ ?r'' ""^ "''^ ^'■«'" «nv
-Id hisproperty^ancutTtet^^^ 7'.'"^^' '' ^-'
ie.%e of the voters in North Monrhl^^"" '"' "^ ^'-••
to;vn of Peterboro fo thetar ITu '' ^""^''^ ^ *'''
"'hich were used at the noils « '^f '^^ *^'"* *''« ^i^ts
Upon the evidence 1 ?'' *''' ^'"^'^ "^ ^^74.
to vote in the VestTdlnrpt T'"' "^"^'^^-^ ^"•'"
Parted with it in June JSrf w'''^'"°' '^"^' "'«* ''o
n-Hed on the roll fbr that ' '' / '' '"'^ "^'"^ --
--H:;S^;t^r4'-!.i-ovote,an.
upon to do so. ^ ^ ''^ ^'^^ voter's oath if called
I «nd that it was agreed th^f T i ,
nated as respondent's I^IZ at th ^r' '^'"^'^ "^^ «-"i-
Monaghan. in the Wesfuil '^7«"'»g P'ace at North
boro, for the day of pol in ' J?, ! ^ ^«""^'3^ of Peter-
^ Poilmg, and that a certificate should
ELKCTIONS.
e- I tlnnk ,fc is likely tl,.,.
o'Uhafc he was going ,„,
^t he would vote tJuuv i
■"''say on the Friday o,
erstood from himself 'tha,
onaghan. He went witi,
at North Monaglian I
uestion whether his v,.t,
;« had sohl his proj,ertv
that he may have be..„
^gent, for the purpose of
'■ *'^« ""Pression tliat h-
■■ 1 tlidn't suppose li,
y to act as my agent,
that he asked Taylor to
North Monaghan ; that
ote ; and that he askfvj
tmeer, and not from any
' did not know he hail
w Taylor had no know-
■glian.
appeals to the County
ich of the wards in the
<74, and that the lists
the lists of 1874.
ne.Iiindthatpriorto
y which entitled him
'terboro, and that he
t that his name was
flit is not proved that
ippeal.
liJs right to vote, and
voter's oath if called
■lor should be nonli-
ving place at North
le county of Peter-
a certificate should
Ut> IP75.]
WEST I'ETERBORO.
281
.•f
be ol)taine<i trom the Returning Officer under tlie 88th
Vic, chap. 3, sec. 28, to enable Taylor to vote at the
polling station at North Monaghan.
1 find that .such certificate was obtained from the Re-
timing Officer by one Lacy, a clerk of the respondent.
< I find that the respondent had signed appointments in
ttank, and placed them at the dispo,sal 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
•ct as agents at the several polling places.
I find that Robert J^airbaini, who was a clerk of the
.Respondent, got .ae of su( appointments so signed by
-%ihv respondent, in which the name of Taylor was inserted,
'ihough it was not proved by whom.
i I find that B'airbairn 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
iiaving 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
''HOVINCIAL ELECTIONS.
f.u.
And I reserve fm- fl,„ i • • ^'^'^
of the respoi,e„j:.t; :::"'^«^^'^"''^'-n.leo„,s
-ual kno.Ie.l,e and i, i:? "I VT ^"^--^''out l,,'
•'"tfnn.nation of this neh> f ^ '■*''''^*''''^'«^' t''^ fi„,,
;; *'- Clerk of t,Jl^^ ;:i 7^ t,. eertifyi.,, ,...:;
*'- -sa Court of Err.; and 1^1)''' '''"^' ''"^'^••'"' ""^"
g'ven their opi„i„„ ,„,, ,,,tlX^f '"^^e expressed a„,l
;---vc.d. or J,ave made so u X f? "^"^ ""' •'"^'■^^■■-
tJ'e preiiiises. ^ *'*'*^' decision or order i,,
'^he qtiestion of Ja,.r
f".s«ee was argued >! ^rrr '^' ""' '^'^'-"^ ^''-t
J7th Septen.ben " ^^' ^''"''^ of Appeal on tla
The CoiTHT (Draper C T A «.
-"• JJ.A.) hehl tiat^het't eo^1'^"''""''^"''P^*^-
-rruptpractieewithi„ thesla u^ i; r^^ '^ ^^^'^ "«t a
«tanees, ,ave the .uspoudtttt^s ""'^'""^^ ^"•-"-
The Chikf Justicp f h^.
-- void, and report! ?rc:f'n^ '"^"^^^^-^-"
--•e proven at the trial to live l"*^' """^ ^' ^^-^^^'
practices. '^^^e been guilty of corrupt
I I
I.
II
EI-ECTlONs.
f.VD.
- theCourtofEnwan,,
'«tl'er. under these Hn.Ii,,,.
' 7;-'-»Pt practice has U^.,
"alknowle,I..oan,lco„,s,.,„
i<^nt or agents without |„\
' . a,id I reserve the final
">'I the cerffyin. then.,
A-^o'uhly of Ontario, „„ti,
•P'^'^J imve expressed u„,|
:;;*;"'; "p'>» *'•« 'juestio,,
'"«• decision or order in
;^' by tJ,o learned C^hi,.,
Court of Appeal on t).
'•«ng. Burton, and Patter-
""Plained of was not a
'."but under the circu.i,-
)sts.
''•t'«e,l that the ejection
dmelle and La PJanto
>een guilty „f corrupt
'&V6TO., 1875-6, p. 17.)
187.-.. 1
HALTON.
HALTON.
2.SH
Before Chief Justice Drapeh.
MiU'ox, l..'th to l.ith Mill/, isr.'j.
Before the Court of Ai'I'Eal.
Toronto, 3Jiid Juni- and mh Sfjjtrmhcr, lS7o.
James M. Bussell d al, Petitioners, v. WlLll,<M BARBER,
Resiwmhnt.
M^ieahiiitnt at. a mfetum of Airtor^—Irri'tiuhintiiii hi rolhii/ hij hallot—
Uiiitni' iiijInviici—UrWenj—Primmc of a " tiio' pffseiit ''—Appeal on
i/iiin/ioiiM of fact.
lefiealiiiients piovided at a ineetiiig of electors, all of one political party,
*, or at a iiieetiiig of a committee to aid in returning a candidate, by and
i at the expense of one or more of their number, unless in some extreme
A case, cannot be deemed a breach of the provisions of the statute against
.1 treating. °
fine 15.. a voter who could neither read nor write, came into a polling
. , booth, and ni the presence of the Deputy Returning Uthcer asked for
^ (iiie not present to give him instructions how to mai'k his ballot. The
-^ Deputy Keturning Officer gave the voter a ballot paper, who then
.^ stated he wished to vote for the respondent. One W., an agent of the
icspondent, in the polling booth, took the pencil and marked the ballot
as the voter wished, and the voter then handed it to the Deputy Re-
turning Ofhcer. No declaration of inability to read or write was made
by the voter.
*«' Id that no one but the Deputy Returning Officer was authorized to
mark a voter s ballot, or to interfere with or question a voter as to his
vote ; and the Deputy Returning Officer permitting the agent of a can-
.lulato to become acquainted with the name of the candidal* for whom
the voter desired to vote, violated the duty imposed on him to conceal
tiom all persons the mode of voting, and to maintain the secrecy of the
proceedings. ■'
One B. claimed the right to vote m respect of his wife's property, and
was told by W., an agent of the respondent, that he could not vote
unless he could swear the property was his own. The voter's oath was
joad to him, and the agent repeated ids statement, and said he would
1,'ni ff . '"f V''' Y°h''.'^ ^^ ^""^ *''« °'^*h. The voter appeared to be
doubtful of his right to vote, and withdrew.
M, that the agent was not guilty of undue influence.
'Zpnr.!^f'n1''";o v-'''"*°^nJ''« agcut as abovc set out was undue in-
nuence under 32 V ic, c. 21, s. 72.
•n a charge that the respondent offered to bribe the wife of a voter by
husbLnH ?'f'"*'.-'^ '^iu "^""'.'^ ''° *""* ^'^'^ <=°"l^l to P'-«^'ent her
H,^„,W 1 ^ r*'"/' three witnesses testified to the offer; the re-
T^tJT,\ *"^.'"'°the'- witness who was present heard nothing
of the offer. On this evidence, and there being no proof that the
Tr rrnnf"* '"^^w- °^ ^^^ '='""'8« ^'^'^ ^-^ting from malicious motives
+L T P expectation, nor any evidence impeaching their veracity,
the charge was held proved. * cia-.itj',
'''^leamedThipf T??^'"*^ t? *^" ^°"!:* °' ^PP^"' °" the finding of the
learned Chief Justice on the above charge of personal bribery.
i
i
284
PROVINCIAL ELECTIONS.
[Ah
called at the house of .Vatlan S '"^ ""^ ^^G'-*^" ''
There were P-ent at th t ." el^^'^ ^'« -'^'
their son. "'"^ ^'^^ and Mrs. Robins and
Tho effect of Mr« P..1,- . . I
-1^' to her if «he woSaterWr T ,''^^^ ^^'^^^^^
^'omg to vote for Beaty he T^! / T^""*^ ^' ^ome fro„,
-d give her a nice prfs'ent Mr '^0, • ""^'.^'"-" ^^ ^e.
^0 what she could. Respondl ' . f "^'^ ^^e wouJ.l
shoulder and said, "Do 2atln ^ ^/' '^''^'^ ^'^ ^-
band from the election andT ''n'"^ ^^^^ ^^"^ hu.
present." ^"' ^"^ ^ ^^ill ,„ake you a nice
N)4han Robins .said " Mr R .
whether,shewouldtry t^ge „e2r ^'^''^ '"^ "^'«'^"«
°r to get .„e to vote for h ' f^ '" ^" '" ^^e election,
thing for her." ^''"' ^^^ he would do soine^
The son, Nathan Henrv UnW
Barber say if she would kfep It? 'f ? •" " ' ^^^'"d Mr. 1
f«r her. or ,nake her a n ce presenTo . 'r^'^'"^ "^^«
«'ee, lam not sure which • thlZ ^''^ '^''' ««'nething
It, any way." ' '^'^'^ ^^s something nice aboul
ELECTIONS. r
ition had found that f K-
of the voter in Ih ^^ ''"^P"'"'
'^ of R -vaiuaW "'"■'"«'• "'* ■
la..«esof3?v<„;^r"'"'-""""
the Legislature wa« fl.,*
" "' the mind nftt' '** '■'^'^^
Personfo™he8it„!f?' ''°*'^'' ""
3rth to the voTer ''"'''• '■
usual charges of coriuj,!
^'■- ^- ^- ^PPelbc for peti.
187o.]
HALTON.
285
fc in the judgment, it ap.
fidentancIoneMcCranev
5bins to solicit his vot;
*'■• ^'^d Mrs. Robins anj
|ce was that respondent
iiusband at home from
do something for her
Robins said she woul-i
put his hand on her
an and keep your hu«.
Ill make you a nice
^er asked my missus
■to go to the election,
1 he would do some. ,,
said: "I heard Mr.
at home or get him
'a do something nice
r get her somethino-
omething nice about
The respondent, in his examination, denied that he had
offend Mrs. Robins anything. McCraney said he was
present at the time of this conversation, but that he had
lM»rd no' " ing of any promise being made to Mrs. Robins.
DuAi'ER, C. J. A. — I am under the necessity of giving
itjl oral judgment from the notes which I have made, after
iWse examination and careful consideration of the tes-
tfanony of the various witnesses. I may .say that being
iiewhat new to the practice of deciding (juestions of
ct, I have felt this duty especially burdensome, where
|ere was contradictory evidence upon important points.
J I can, however, without difficulty dispose of several of
^e charges of treating, as I am satisfied, by looking care-
felly at the dates assigned to them, they took place at too
*l,rly a period to Justify a conclusion that they were acts
corruption designed to affect this election. There
rere cases which, having regard to the time when they
appened, were much more (juestionable. They were how-
fer, taken separately, not only in some degree doubtful,
|ut also very trivial, and were too few in number to treat
tiem as in the aggregate sufficient to establish general
lesigned or systematic corruption. Again, a meeting of
■lectors all of one way of thinking, to support a particular
andidate, or of a committee to aid in his return, at which
efreshments were provided at the expense of one or more
pf them, could not, unless in some extreme case, be deemed
. breach of the provisions against treating.
Mr John White was examined, and said he was a
lupporter of the respondent, but not a counnittee-man,
^nd attended no committee meetings, though he attended
Several public meetings. He acted as the respondent's
fcgent at the poll at Drumquin— " worked with a will for
Ihim. I saw no treating; I had a bottle of brandy; I drank
[some myself ; I gave none to any one. This bottle I left
I on a work-bench in a blacksmith's shop which had been
I converted into the polling booth ; it was left on my great-
Icoat there; I think I covered the bottle with my coat;
2>S0'
'■""VlxciAL ELECTTONS.
'i'. !
•1
llliiiil
fv:
Action, M,.. wJtL ,i^2rr° "'T''"" '"«■ "
«"■■«. w„,.„ H,^„ „,. '^"^•1 '» »«y that 1,„ t,„, ,,,
'"'■■ap.l.lc., without e X, !■ "■.I"""''""^ "'■ "'1-w-
'"^"ofc paper was place.l n R„ ?'" *" "'"^ P«'^«^"J' 'il
tor Barber; then Mr. White .it .T '''"^^^'' *<' ^''t'
t -■ I^allot paper as Cyu'f *'" '"'"'^'" «-' "'a.k.i
the ballot paper was han.lcn" by BrV''^'' '^^ ''^''■--
Office.-. .\ovv the 1 9th . ^ ''"■>' *« ^^e Returni,,.
'":; «'i« -. : ■ ;i: Lt!:;:: ::,:::'-, T' ^"' '■■"'"■
acity to mark the balh.f r„ ^l^claration of incan-
^^«eer shall, in the : l^oTir"'' '" ^^'^"^^ ^^^"""^ '
e-»«e the vote of .such pe son IT ' "f^^ ^""^''J^^^-
P-Pe»- in the n^anner di^ Kv Z"""'''^' ^" ^ '^^"'^'
^HUse the ballot paper to ben, ^ T P""'^""' ^»^' '^''all
*•-••" of .leclaration'is W^en in Sol^ J", 't '^"°^ »'-• A
-^ attestation clause i? X „ ^J". t.'' '' *'"^^t'-'
V the Deputy Returnin^^ffi :..%? ^^f ^' *« ^« ->^''l "
«f ction 10, power is given to ttn '"> •''-''^^"» »' •^"''- '
e-ther personally o^ th'u.h W^^^^^ f*"^"'""" O^-,.,
-«ter the n.ode of votin! an<i th ', *' '"^P^"'" ^o th.
""n.bers and names of iidl '' "'" ^" ^^'«h th.
Pr'-- P-vision is „ ad t;"'P""*^^«" the ballot
objections by a Candida : or ht a "nt;"^" and entering
a refusal of a voter to take th^ T. '^ ^ ''''^' ^ ^«" as
' Er-ECT(ONS.
[XI
^^'ftthe J>ottlo affcervvar„s
*"«^;.|fc ^vas nearly on,n,;
.'•^•lat,vetohvo,„e,.ti„,:;.
ave no connection witiuL'
' t« «ay that he thMu-l
on., illiterate or otherwl
'». ot .narking their l.u||,.
>»IJ neither ,-ea,l nor wri,,
3 CaarJes Connor, wlm „,
«t«'l that he shouM act f„.
«Pon.lent. The Retun.in
111 «aw all that pa,s.se.l. Tl,"
rs hamlhy the Retur„i„
'tnte,l he H'ante.1 to voj
•J^ tl'e pencil and mark,.
expre«,se.l he wishe.l „
••White says l,e helie\v>
Ban-y to the Retui^nin.
t the Ballot Act provi.lj
'■ a declaration of incm
'J the Deputy Returni,,,
agents of the candidate'
1*0 marked on a ball.t
such person, and shall
J m the ballot box i
e;JuIeCtotheAct,ani
^^f^le D. to be signd
liien by section 8, sul..
^uty Returning Officei;
'erk, to explain to the
J colors in which the
•e printed on the ballot
reiving and enterin.
It to a vote, as well a!
' or affirmation, when
take the same,
but the Deputy Re-
'nn these official acts,
1875.]
H ALTON.
2N7
<MP to interfere with the voter, or (piestion him as to his
V<rte or his riglit to vote. His name must be on the voters'
Ui|; this gives him a priind facie right to vote. The can-
(ttiato or liis agent may object, and the (hit}' of the Deputy
Siturning Officer is in tliat case |)Iainly prescribed. If the
^rflei' is ro(iuired to take the oath or affirmation and le-
*' es, his vote is not to be received. The Deputy Returniii-<-
Seer is to conceal as far as possible, from all persons
Isent, including the poll clerk and the agents of the
^didates, as well as all othei' persons, the luunlier printed
i the ballot papei- and upon the counterfoil, and not to
rmit the counterfoil to be inspected
^Uv. White spoke of himself as sci-utineor (ajid not
"leral agent for the respondent), appointed liy writing,
^e ajjpointment was not put in evidence. I do not find
term "scrutineer" in the Ballot Act; but I think the
OJtndidate iray limit the authority he gives to acting for
Sin during the polling. It would so far limit the powers
l^d authority of the agent, and consetjuently the lespon-
^ility of the principal. It is, however, the Returning
leer's duty not to permit interference by either candi-
ilte or agent with the di.scharge of his own prescribed
Ructions, to execute what the law prescribes, and not to
blegate to another that which is required of himself in
bis respect. I do not see how the Retuining Officer can
brmit the agent of any candidate to become acquainted
^ith the name of the candidate for whom the voter
esires to vote, or to mark the ballot accordingly for the
Dter, without violating the duty imposed im him to coii-
Bal from all persons, including the poll clerks and the
gents of the candidates, the matters mentioned in the 9th
ib-section of section 8 of the Ballot Act, or maintain the
ecrecy of the proceedn.gs so rigidly directed by the 30th
ection of that Act. I feel compelled to say that I think
le Deputy Returning Officer was at least guilty of great
idiscretion in his conduct in regard to the voter Barry.
There is also another case at the same polling place
vluv.'h was a subject of complaint and investigation as to
L
'2HH
PROVINCIAL ELECTIONS.
[a.d.
Which WiIIia,n Black su.n.. that he went to I)ru„K,ui„ on
Sk .^'";,^''^"™"''<^«5cersaH'-Ihada vote
rhe Retanun. Officer rea.l the oath ; I was a little afra I
to take the oath after what Mr. White .sai.l. He ^(T
cou not take it; he .said he would look after .71^: ,
take It I ha,l ...ver heard the oath read before Mr
would nT'' ' T' "'^^ ^"^^ ""'^'- ' -- --- anf I
would not .swear that, and with.lrew " IVf ,- wi,.v
|.^l.a<Uo,,,«„e,,eo.,ve,.Ba,.,,,a„,,did„otk„::;M™
>e.y difficult to<let„,„„„e that lhi,i., intimidation within
would convey to the vote, the hlea of fo 1 vi" 1' S-
™t,.a,„t, or the inHiction of injury, damage t™ o
loss, or in any manner import intimidation m hv t]Z.7
.n,ng the use of fo™, ete, the case would'" wfthnThJ
72„d section, and the offence, undue influence AM that w»
-Kl. was said in the presence of the Deputy LtumZ
Officer, whose hounden duty it was to have protected hf
voter, and that ho (White, was p,.,ent withi'n te 'oHit
1.00th only a, agent of the respomlent, and where he 3
have gone further, and have forbidden Mr Wh^*r
-e*Hng With the free exei^iseof theM-sTudg™:™
1875.]
HALTf)N.
289
and, if necessary, to liave removed him from the polling
hooth. I am not surprised, considering the sevei-al topics
embraced in this oath, that an uneducatiMl man, as Black
seems to he, should on a single leading refuse to swear in
its full terms. But if the Deputy Returning Oflicer had
referred to the 41st section of the Act, he must have
known that every person whose name was on the votei-s'
list had a right to vote, provided that, upon being pro-
perly required, he took the necessaiy oath or affirmation.
The statute does not sanction any questioning of the
voter by a candidate or his agent in order to show that
his name ought not to have been placed on the list.
But as I have come to the conclusion that Black did
not vote becau.se he really felt doulitful of his right to
vote, and therefore was, as he says, " a little afraid," and
as I have no reason to doubt that Mr. White (as he has
sworn) really thought " the man had no right to vote, and
had no intention to mislead him," I cannot find the re-
spondent through his agent (I have no doubt as to the
agency) guilty of undue influence by intimidation in this
particular ca.se, I have already .said I think an improper
course was pursued by Mr. White and the Deputy Re-
turning Officer.
[The learned Chief Justice then reviewed the evidence
as to the Robins' case {ante p. 284), and proceeded:]
I assume that the particulars gave the respijndent
notice that this charge would be advanced in order to
un.seat him. If this be so, and the conduct of the Robins'
family afforded even indirect proof that they had made
such an assertion from malicious motives or with a cornipt
expectation, why was it not brought forward ? or if the
Robins' reputation for veracity would not bear investiga-
tion, why was that not made to appear 1 These and
similar considerations, and the uncertain sound of an
unsupported negative, or of an assertion of utter oblivion
on some points and rather vague generalities upon others,
are ill calculated to reject a charge sworn to pointedly
and directly — a charge of a novel character, and attended
290
''«'>V,VCUL ELECTIOXs.
%M
^^''tl' C<)M.s..,,,i,.,„...s f.. «,l • I ^'*"-
--'^ --;;;. j;:::;!:;:';:;:r-^''»'-, .,,
•nor., r..,..„al.lv ,.,,,,„ , .^'^^ 'A."...mncv ..,,,,t ,.,
^ ;''••--';' not vc.nt„.i to an tr '""'-^^^ ^
;f^'- "f ,„o„..v „, valuai. '"""''^ '■" ""ikin.. an
r'""'";" ^''" "'^^' "^'-« Na u rr-'''^""- -"'-->.•:
.V roi t/,e county of Halton "'''''
from this .looisi,,,,*!.
ofA„,«u. ""'""""•■"■'™'»|.p™l.,|,„tl,ea„,,
Mr. Blithe Q n /*.,
HrcjfARos, C. J_v\r,. I
iiitfifere with H,. " i • ""^ ^'"■"'^- «'e eat. .
'" «.^- f«-» t,:!;u'^;,T;:;:"""™'"»' ^-"wV'St
'' 7/ "'=""« "iclfnco, „,„l tl' ; """"-■■-^^■-"•l.t.ntl.c.e
^«o„ ., to the n.aetfo^ &: '"« "' '"^' '»™e„ cS
" "■'W not u,;g„d before the lea™. 1 .>, •
IrLT"" r *» -"*sion that L ' '"^'^ »»'
^ '^ent It she M'ouJd
iinl
1X7.V]
H ALTON.
291
keep her huMl.ai..l from v.tinK HKninst him. that this was
n.,t hnW'ry within the iiH-aninK "f thu .statute of this Fro-
vincf, M2 Vic, cap. 21. hw. (i7.
The question is mis...| hefoie thi.s court for the Hrst
tune; an.l it is conten.le.l that there nmst W- something
named as the present to he ^iven. or it wiU n.it he u pro-
mise or offer of a v,d„M: mmldmilion (within the mean-
niK of the Act) to Mrs. Ilohins to in.Jnce her hushan.l to
vote or refraui from votin^r at the election.
It i8 not in terms an ..ffer of money. Does it imply that
sometlnntr of mine is to he given if the promis.- or offer
IS earned out ..' an.l if so, is that not what is meant by a
promise of money or a valual.le consideration ? Not a
promise of something which has no appreciable value
such, for instance, as to make a la.ly one of the patrone.s.ses
of .some .".xhihition, where no on.- was to receive any
pecuniary heneHt hut all were t.. pay money; or huyin.'
a ticket to admit a per.son to grounds on which a pic-nic
was being held, where each person attending paid for (jr
furnished his own lunch ; .)r to make an elector a member
of an election C(Mnmittee, where he WouM receive no
emolument, and would probably be compelled to labor,
and might be sulyect to lo.s,s.
When this offer was made was it a mere pretence ? Are
wo to presume the respondent wished Mrs. Rol)ins to
umlerstand, as she appears to have understood, that she
was to receive a present of some value, when he intended
to give her something of no value or no appreciable value ?
This would be presu.uing a certain kind of fraud on his
part, and in his favor to relieve him from what would be
the consequence of his act, which I do not think that
judges or courts usually do.
One of the earlier statutes on the subject of bribery,
7 Wm. III., c. 4 provided that no person to be elected to
serve in Parlian. it " shall directly or indirectly make any
promise to give any money, meat, drink, provision, ;wes.u/,
nward, or entertainment to and for any person having a
voice in the election, or for the use, advantage, benefit,
fl9t
PHDVINCIAI, Er,EtTIf)N.S.
fA.J
emplojpiwiwnt, proHt or i)r..ffiiia.nt nf »
Ou
• in Pailiaiiiciit.
Ill
ir ;«'" C.,i,. Stat. C'ana,l,i, •>-> \
piovi,li,,| that no can
li'latc .shoul.l .1
If.
irt'c
^ap- '{, sec. Hi.
•t'y
i(li
t-'mploy any „„.anN of conunti,,,, h.. ••
"""•«y. ofHce. place, <//>./ 'rlr J *^'''''^'"'^ """ "''
note, or conveyance .I^' la . ' " *"^ '"'"•'' ''"' '"
--'-1' he t]n.e::;;*a!:; t^^^^^^
•fcc. with intent to coiTunf .... I '''^ '"'>' ' '' '
«uch can.ii.iate, :rc;'':''''''"r '"*"'• ^^ ^^^^^ ^••"'
"ov,sl.all |.e .support ,, ^^'1 '^^''"'"'' '''■*"" ^««»K :
^'^i"-ent..t.!JacL:.::^iS'rfr'"^'^"^^-
any ••ep.-e.sentative returne.l h P • ""^•"■"' A"'' '^'
"f usin, any of the u" I::':'''"' ''^ '^'•^^^''''" ^-'''.v
hi« election .shall he .lech e. • ^m""'"'' '^''^ ^'^•^^^'•"
^•^-n.ein,acan.!-tr;'d;r^^^^
■Parl-.anjent. ^ elected tluiin^r that
■« Vic, cap. ,« . ::,',; ■^:^:y «- I-P. .St.t. .7 a„:i
other valuable eoasideration ot. t' o V """^^ "'
'noney or other valuable consi<l.rr " '^^Po^n^'ed,
In construing thi.s status " «««>nable."
tje intention of the L^^L l^'r T'^ '''^^ ^
he prunary object wa.sthat vo e^ iL 7? '^"° ^'^"''^
the conviction in the mind of fh ? '"^ ^'^^" f'-o'"
supported a candidate that he ^7.^ "' ^"^ *^'««^ ^^ho
-tuat^.., and that th ^Ib, „!?" ^^ P--n for the
PuiJUc mtere.sts would be best
HAUOX.
sHved l,y electiii^r l,,',,,. Th« evil to be
Mipportin^f a caiirlidatf, not
ptTMOii, liiit for "c/nis(l liirri"
2on
corrocttMl wa.s tin-
"liduttj IwcaiiHe of
•miti.se h,. wa,s the proper
supporting of the can -
Tl
;)ersonal benefit to himself; tl
of the franchi.se not for the pnl.iie goo.l, but
J (I Ml
le exerci.se
'or personal
• . ' ^' ■'"•i "UK lur iieixona
in money or money s worth to the voter or he per-
son m.lue.nK the elector to vote or not to vote, was v I at
the Legislature wished to guard against.
Then what vvas the n.otive presented to the mind of
M.S. Rouns, „i the case tn.der consideration, to in.luce her
Lusband not to v^,te against respondent >. It was tha" .'l
was to receive so.ue substantial advantage from it, eithe,'
- money or property-son.ething of value. She was .
have a ... ,r..na The evidence showed she consi<lere.l
would be so„,ething of value-not of n.ere fanciful >
ag„ut,.y value, but of real value that would be a,,reci.
A Vhat occurred woul.l well justify her in .supposing
a the respondent mtende.i to give her ,son>ething of
alue, and that he uxtended to give her, in the langua.^e
the statute, a valuable (not a fanciful) considemtio"
mg Uiat behei. tned to induce her husband to abstain fron,
So that, in fact, the evil which the Legislature inten.led
to prevent actually existed in thisca,se. 'xhis won.an wa
^^^PM by the otter, and she endeavored to exercise an
influence over her husband from the desire to ^ the
F..^cnt which had i ,een promised her.
I understand when a corrupt promise has not been
arned out. that the election Judges in England-to use
U,e language of Mr. Justice Willes in the Lichfield case (1
UM. & H. 27)-" rcjuire as good evidence of that promise
1 egal y „,ade. as would he required if the promiL were
t r .r'' *° ™''*'" ^" "'""'^ ^^' ^^'-'^^ (the person to
^ on. the proMuse was n.ade) against the respondent, upon
Barlow voting for him, for not procuring or rying t; pro"
cure him a place in <^^>.» i.-^.-;*..! -• ^ ^ P
hcspital.
■ :*<;
294
PROVINCIAL ELECTIONS.
[A.t).
^»t I do not understand tha^ f)i« r.,. •
for which, .e„ itnotp Jiht '4,h™ZrP '^r'"
ot the pron.ise requires tn 1„. ..f /. '^''*' ""'"•"
are concerned thatll 'h ,"""'f'«''"'3-. «n<l, as far a« „,
My bother Seln a" r "'' """ "'"P"*' ■"■
not referred to in tra^^Xt 'T: r" "' """^ --
as a matter of pleadini, it wl ''' """' ''«>"• «»!
o«cred, an., in !;hr;r , r,d :r ;c: aT' *' "'
sustainint: the vitnv n.v.c i ^'^ ** ^^"S ^^'ay in
butthe,„^,e:„ :;^::x:\r" "^ '^^^^ ^-^^p-'-t,
.the other way. '' *^^"'^ '''y ''^''^^'' ^^e, I think,
I quote at some lend-Hi th^ 7
Judge who tried th7y *^^^^"^"^g« °f the learned
which Co]. D Ik n was '"T" ^'"'^'"^ ^'■^'^-«. in
granted by Col Deakin to r V " *" *'^^ P"^-^'^'^'^'
the W.s'^^ease.I I "^'^ " *^""t f« «^-t rabbits .;
it was to those tenant a ' I. n"""' ^''^^ '^'""^"'S that
-quired by that conte i'T.W ";? "'" '''^' *^->' ''-'
bio of being represented I V . ' «-^«v.^/.m, capa-
I cannot eiinL ", It ! "" T"^' ^''^^-- ^^ eouL
that I should do si it " o!r ^''^^"^' "«'' ^« ^t neces.sar,
an-ive at the conclasi 1 J ftTr"^ ''''' ' ^'^^^'
'^^ortli, and that the resin 1 . '"""'^ ^^^ "''"'"/'v
Pa^'ting with ^onj^h^^: :r::r^^'-:'/hat he wa.
hands a source of cr,eat eni 7 ? ""^'^^ '^« "^ '"'^
wise, which he ^1 toT "' " ^^^^^•^"^^' ^^ ^tlKT-
the effect of th^Xt '^"^"' «»^' thereby destroys
wa. formerly holdirTl:!^^^^^^^^^^^^ *he tena,.
that it was a -cession rcHifin"'^"- '''''^^^^-
Imustsee C ''P'''''^^^^'«^'al„e.
Parlia„.ent intended to nu 1 '"'if """^^ ^^^ ^^t «f
and influences at an electbn i "" '" ""'"P' P'-^^tices
construction of mine the etfe t oiit r?"'^^'"^ ''^ ^'^^
Pi-oper effect to it '*' ''"t am givino- all
which I have arrived i.s. that the givin.- S'!,;«"^^"-» "^
oivmg ot this conce.ssion
1875.]
HALTON.
295
to the tenants, under the circumstances, was either a pro-
mise or a grant; it ivas not a legal grant, because that
would require something more than a parol expression •
hd when we are dealing with an eleetion question, we must
deal luith the motives wMch are apparent, and which appear
tVom the Act itself. I cannot go into any intention of
Gol. Deakm. I must be governed by what he said and
by the mferences I ought to draw from wliat he did and
what he said ; and hy the inferences drawn by those persons
who were present, and who heard what he did and what lie
said."
Here it will be observed, that even had it not been for
the Corrupt Practices Act, Col. Deakin could not have
been by law compelled to make a legal grant of the
right of killing the rabbits, and could not have been sued
for any more than the promise made in this case • but
nevertheless the promise was considered as equally cor-
rupt. Other expressions, I think, warrant the conclusion
that the apparent motives of the party, and the inference
from the Act itself, should influence our decision.
My brother Patterson has also drawn my attention to
the case of Simpson v. Ycend (L. R. 4 Q. B. 628). That
was an action to recover a penalty for bribery, and it was
virtually decided under the Imp. Stat. 17 and 18 Vic
cap. 102, sec. 2, sub-sec. 1,. as I have already mentioned'
similar to the section of the Provincial statute under which
we are called on to decide the case before us. The pro-
mise to the voter was, " I said he would he remunerated
for his loss of time." The learned Judge who gave the
judgment, Mr. Justice Mellor, said : "We delayed givin<.
our judgment at the close of the argument, not l^ecause of
any doubt existing in our minds as to the answer which
we ought to return to the question put by the Judge of
the County Court, but because we were assured by the
counsel for the defendant that the election judges had in
their decisions upon the section taken a view differing
from that which we were disposed to take. Had the fact
been as suggested, we should not have felt ourselves
s
296
PROVINCIAL ELECTIONS.
[A.D.
Jesimble to ascertain what Irn i ^"* ^' thought it
P-ssec, ,y ,he., withTeftCra V" '"* ^^^" -
.then; duties had necessarily ,^^,1' f"' ""''^ ^^"«h
'nquny, we find as wp J ,'^'^^ *hein familiar. rjpo„
J-lges have e.^^LTnTo^^J'^' *^- ^-C
elusion at which we have aS Tr" *.' *'^ ^--
upon this section, so far as i t r J . ' ^^servatioas
, -^ «-W merely expressea ! " '" '-^^ ^^^''"'"-^
caution as to the quantityTn"' ch/ ! '' ^^'^'^^^^ -»^'
by which such an offer ' or " "* ^'^^ ^^^^«»ee
a-s proved." '^'^ ''^ P^«""«« ' should be considered
»nder the circumstances anK)unf , "' ""^'^* «^'^"^' did,
procure., or to endeavor to l^ '" ^«'"' ^ P^-'-- to
consideration to a voter 'in ^7 ' '"""^>^ ^'^ valuable
at the election in ,uest o„. C-m" "'"" '''" *^ ^^^
for loss of time ' would necessL 1??'''"'' 'remuneration
hension of the voter that itZ^T^'^y *^ ^he appre-
person offering, or by his nro. ''''''">' ^^om the
consideration which iLuHoT^.f' ""'^^ ^^ ^'-hle
any assurance of that kind tlh ?' '^^^''^ ' ^"^'
«tood, ^s calculated to operate n.," "''^■" ^' '^ ""^er-
- a direct inducement'o te T V""' °' *^^ ^^-^or
After referring to r '^ candidate."
.^7-uudge;:Cd^T^;tt
nterest that electors should b irr^"' *^ ^^^P^^lic
any disturbing influence o any l '"1 ''*^ ^^*^«"t
selves bound, in construil the 5/^'* ^'' ^''^^ ^"r-
.-'ve full effect to the pla in'mt ' '" ^"^«^'«»' to
'-^ to apply the, to'tirsubs ::;^'' "^ ---^^ --'.
-^^/-^^^mm«^..,,,,rf.,.;^^^^^^^^^^ facts of the case,
'""^ '"^'^ or expression in ^Z^^"'"''''' ^" '' *'^i»-
conveyed." "^ ''"''^ t^^e promise or offer may U
1875.]
HALTON.
297
Here we have no doubt that the words used did sub-
stantially convey to the mind of Mrs. Robins that if she
used her influence, as the respondent wished her to, she
would, in the language just quoted, receive money or
valuable consideration which she would not otherwise
obtain, and this was calculated to operate on her mind as
a direct inducement to do what the respondent wished.
Our duty, then, is to give effect to this statute, though
the consequences of our judgment to the respondent \\?11
be so very serious. We are not at liberty to fritter away
by .subtle distinctions an Act of Parliament. The same
learned Judge whose language I have quoted above, Mr.
Ju.stice Mellor, in one of the recent cases decided last year,
the Bolton case (2 O'M. & H. 144), uses the following
language on this subject : " I take it to be the duty of 1
Judge to take care that he does not fritter away the
meaning of Acts of Pai-liament by any subtle construction,
but to give a bold (but at the same time cautious) decision,'
which .shall further rather than defeat the object of any
Act of Parliament of this character which he has to con-
strue."
^ We are all of opinion that the judgment of the learned
Chief Justice should be affirmed ; that the Clerk of this
Court should certify to the Clerk of the Legislative
Assembly that the said respondent was not duly elected ;
that the said^respondent was proved to have been guilty
of a corrupt practice at such election, and that such cor-
rupt practice was by promising to Christina Robins, the
wife of Nathan Robins, if she would keep her husband
from voting for Mr. Beaty at the said election, he would
give her a nice present. ,
There is no reason to believe that corrupt practices pre-
vailed extensively at said election.
We direct the respondent to pay the co.sts of the trial,
of the petition, and of this appeal.
Strong, J.— The question of fact argued on this appeal
must, I am of opinion, be held to be concluded by the de-
298
fBOVlNciAL ELECTIONS.
«'«erving the de.neanor of thfvvl ^PP^^tunities of
^ J«%.uont a.s to their tru h u n T' '"*^ '^^^ *"'^'''»^"g
cedure of appellate t'Sl n, r'"'"^'"'' ^" ^^« P^O"
oftheeu,pi.e-theHoZ:fl^^^^^
I-peiKling on the voracity oi ' tn '^"''*'""'^ ''^^^'^
^- given to then,, are concL' n T'"' ^"^ "^« ^^^^it to
^^ the court of «rst in^tc 1''" f'^ "'^''"^^ ^^'^^e Judge
'"ony is given. ^"''' '"^ ''^^'^'^ Presence the te.sti-
This rule wa.s acted on in thi. » . •
and the authorities there S;:: " t""- *« ^'-t case
cases of Pe^, ,, ^.^^^ ^ '''^i ^o I may mention the
ajso refer to the judgn nt of P f ' "^r"'' ^•^' ""^ ^ ^o^l'i
^'V. V. £ertran,l (L. Rip p S.'^.'r't'' ^•' '" '^e case of
as compare.! with oral evident f^'^^' "^ ^^'^'^tten
evidence without its sprit IVV "'^ ''''^ ^ody of
rtr---'^t4::;tde;r^,^:
discovered by the researrof't'':^ ^^.''-* ^^ ^- «^'>).
«hows that we must ho d "L t ,'^'**"-^"^' ^'•'^-"'v
offer of "valuable consid ration '.^ •'''" " ^''^'^'^^^ -'
section 1, of 32 Vict., dp 2 « ^'^ ''^'*^"" ^7' '*«''-
reasons which I do not'^th Lk Tl^''''' '' "^^^^^' f-
length, as they have been alreadv I T?'"'^' *" ^^''^ ^'
of the Chief Justice, I shoull S- "^ '^ "^^ J»dg'nent
»ot had the satisfaction orlr:,;^' '^'^'^ '' ^^' h^'
supported by the hia-h «nH ^^^^^'^^ that our view was
Q^^en's Bend. ^' '""^•^"*>' «^ the English Court 0"
-i -5 fe:t;t^2Sb"'"^»>e dismissed with
tl^e Chief Justice. ^^ ^'' ""' ^^^'^^^y indicated by
tried the petition,
• l^e given to wit-
%e in open court;
' opportunities of
5. and of forming
li this Court doet
ished in the pro-
'le highest couit
questions of fact
ind the credit to
ing of the Judge
ssence the tesS-
jhe case of Sav-
ion to that case
^y mention the
•7), and Bull v.
^•), and I would
in the case of
aks of written
dead body of
ipplied when
of those who
1875.]
HALTON.
299
Burton, J.— I fully concur in the judgments which
have just been pronounced. The only difficulty I have
felt is as to whether the words alleged to have been used
come within the (i7th .section ; but when one regards the
mischief which the Legi,slature intended to deal with, and
the words of our own Interpretation Act, which declares
that every Act shall receive such fair, large and liberal
interpretation as will best ensure the attainment of the
object of the Act according to its true intent, Tueaningand
spirit, it is impossible, I think, to come to any other con-
clusion than that this promise comes within it. To hold
otherwise would open the door to every kind of ingenious
evasion of the Act.
The Legislature has endeavored to put down an evil
which prevailed to an alarming extent throughout the
Province, and to meet every possible case of bribery or
other corrupt practices ; and we are bound, I think, to
give full effect to the meaning of the language they have
employed, without, as expressed in one of the cases, rais-
ing subtle distinctions or refinements as to the precise
words or expression in which the offer or promise may
be conveyed. A "nice pre.sent" must have been under-
stood by both parties as something of value, and would
convey to the mind of the party to whom it was made,
that 'f the elector would vote for the candidate he would
receive something, and could only be so understood.
Pattersox, J.-The finding of his lordship the Chief
Justice of this Court, that the respondent promised Chris-
tum Robins a nice present if she would procure her
husband to vote for the respondent or to refrain from
votmg, is clearly supported by the evidence. After hear-
ing the witnesses and seeing their demeanor, and testing
the value of their evidence by a consideration of the
cu-cumstances which tended to give probability to the
statement on the one .side, as against the opposing evidence
ot the respondent, his lordship arrives at the conclusion
tiiat the charge is proved.
300
PROVmciAL ELECTIONS.
[a.d.
tins does not necessarny neanTh J ""' '' ''^ ' ^^^
opinion fonned of the w tnesjs ^Th "1 '^ "^""'^^ *^^^
and hears them Tn , ^^ ^''^ "^"'^^^ ^ho sees
.lependsnot ,uc u onTh ""r /'^ '"''"^ ^^ ^ ^
statement as a,Jn Zth r^t ^^ '^'^*^^^^^^^ *--
eU to individual witnesses I; 1 .,' ''''''* *" ^^ ^^^^^^J"
w facts which ^r:::;;zXi^'o '''''''''''
•'ependmg on such consideration. ?n " ^"^^tions
•luently reverse the findTn! 7 ' ^P'"^^" '^^^'-^^ f^e-
there is eonflicti^^evidtnllrwh '^'^" ^^^" ^^^e
on the credit mven to n"? ' ' '""'^' ""^^ ^'^P^"''
--•t may, by the repC ^f th' 77"^' ^'^ ^PP^"-*«
witnesses, be enabled ortieltfil^" "'^ '^^''^ "-
I^ord O-Hagan in the case oVr ^ ^^ ' ^' '^«*'««^J by
f So. App. 124), where h 2 "rr?"'^'^-^^- (L. l[
have been fairly pressed bwi! " ^' ^"'^ q"««««n we
Ordinary, who 17*1:1^1^.3""^"'' f ''^^ ^-'
and judging of their veracity ^1^.^ "' "^^"^"^«
himself, should not have his 1? ";.''''"'*""^ before
and undoubtedly the ZleZ ^^""'^^ ''^ ^^'^e ;
much better ascertl^d L hT T 'r''"''"^ -'^ ^-
those who know it o^^ty eTorrVriV' *'^" ^^
Pecuharity i„ the present caseThat th T ^^ ^'^ '^^'
has put us somewhat in his own n I ^''''' ^^^'"^^7
fo to speak, to see with h^ oTn C:?; -;| ^^^led u^
""pression produced upon him hwt ^' '^^^'' *^^
anddescribesheras'agWo '1^*^' ^""''^"^ ^^'"^■^'^'
her testimony generallvwitbTn^^^^^
he speaks favorably of" hex aun^ 7 1 truthfulness,' and
P-t in the transaction is of gr ItT " "''"^^^^^ "^-^
we are concerned directlv nnfZ^T'^^'''''- ^^''^^^'^
Lord Ordinary, but with th!t wT . *'^' J"^^^""^»* «^ «>«
^-*ter we ought to affii ^J^' •^^^-"'-' ^t, and the
[a.d.
flecisions upon
IS of law ; but
to criticise the
iclge who sees
^'ing of a fact
ittached to one
it to be accord-
per deduction
On questions
te courts fre-
Even where
1 may depend
the appellate
ho hears tlie
IS noticed by
liwiton (L. R.
' question we
lat the Lord
he witnesses
3anor before
^ set aside;
'onycan be
it than b}-^
lere is this
1 Ordinary
enabled us,
states the
il witness,
>, who gave
Iness,' and
ess, whose
Besides,
'nt of the
t. and the
ied of its
Por arriv-
lordship
s <'amily
1875.]
HALTON.
301
after carefully balancing the reasons for preferring their
account of the transaction.
I have, however, had strong doubts whether the pro-
mise to make a " nice, present " was an offer of " money
or valuable consideration " within the meaning of section
67 of the statute. This point was taken by Mr. Blake
in his argument blifore us, though not taken before the
Chief Justice at the trial, and we were referred to a
dictum of Alderson, B., in Cooper v. Shide, which is noted
in the report of that case in 27 L. T. Rep. 13!), and 2 Jur.
N. S. 1020, though not in the report in 6 E. & B. 447.
The report in the Jurist is : "Alderson, B., added : I enter-
tain this opinion also, that the words ' money or other
valuable consideration' ought to be construed to mean
' money or other valuable consideration to be estimated
by money' "
I have not seen any case in which any Judge or court
has actually decided that any offer or promise which came
in question, was not an offer of money or valuable con-
sideration, except the decision in the Exchequer Chamber,
in Cooper v. Slade, where it was held that giving money
to a voter to pay his railway fare in going to vote was
not giving money to induce him to vote. That decision
was, however, reversed in the House of Lords (6 H. L.
C. 746.) In the Zaunceston case (2 O'M. & H. 129, 80
L. T. N. S. 823), Mr. Justice Mellor held, that an offer by
a landlord to his tenants of the privilege of shooting
rabbits on their farms was bribery, because it was a valu-
able consideration, capable of being represented by some
money value. If the question had been merely whether
an offer of a nice present was an otfer of something hav-
ing some money value, I should not have hesitated much
as to the correct decision ; because I think there can be no
doubt that such in offer would convey to the mind of the
person to whom it was addressed, that something which
was either money or money's worth was to be given. My
doubt has been not as to some vnhie being implied, but as
to whether the words " valuable consideration," which are
302
PROVIXCIAL ELECTIONS.
[A.D.
technical words shonlrl nr>f •
receive the .sa.ne' ct eti n aTtZt Jf ""^ •^*^^"*-
reference to contracts. ^ ^"^'' '"'^""''^ ^i«>
The present statute takes the nln^o ^*
re^arJ to thi hi" 'n T"T"" "' '^"^^•■' "^^'-^
fact that th woT' "J Tr '^"^' '' '''^' ^^ *« «'
recognised n.eaninT n 1 ? ' «»n«ideration " have a
as would ordinarilv support in n- ^ ««"'^'^'eration
no.' in question .Is oSeL'ite i^^^ ^'f^ ^'^^^ ^^'^'
that condition. ""^nnite in its character to fulfil
The adequacy of the consideration f... i • ,
is made, is u.suallv r^n^ . Z'*"™" ^^^ ^^'Jnch a promise
tliere is no airrppma«+ u , ■' i'^^^'^^ - out where
accepted „ffe;:;rrx:; if::: ir-f^ -■ -
by con,ent_it would seem th^t . ■ *'"'?'°''«. 'o^m
entirely indefinite i, „r ""''.'' "'»"'*n>tion which i,
able ooLiderallon « """ "''* """ >» «»«'' « " valu-
««," i. too indeflnit t? J ,;!* '•"; °- fo" ■•«
for a gn™ntv(Chittv'' Cont M . ^°°i' ~™«'c«>Won
25), which d^tVin ;p::t Jh^ z 1 1'-- '•''■ <>'
■nt- the judi,.n„,nt of hiifrm ^,t„„ B ' ^J" «"-
V. «», (S H & N •!i)qi . »"" ""atson, B„ m Oltla-sMw
che,„e/ch.; "■h;:*^ir;:"j't^r r - '"^ '^^■
«ne volume, and it loe, not" 1 to h' d "'f? "'' "'*
of the Judge, who gave aZLTi^^T'"''' '"' '"'''
Geo. II. c 24 whi,rrii i'; ''"'"ation in debt on 2
'-at the dell' i^lti: ''l T ' "' *° "^'""
held bad in arrest of ind^r? . ** °' ""^'"^'' ™
particular .speci^'jj'rfwtd «, ten"' ^''^^^ "■""*
1875.]
HALTON.
303
liwhing the position that the declaration must state the
means by which the voter was corrupted.
The rule of construction stated in Lord Hwntingtower v.
Ganlhicr (1 P & C, 297), viz., that " it is not for us to say
what might be politically desirable, but what is the pro-
vision of the Legislature, and that in order to answer that
(juestion we must resort to established rules for construing
acts of this nature," seemed to me to make it proper to
treat the section as I have indicated ; and I do not say
that that view is incorrect. But the judgment of the
English Court of Queen's Bench in Simpson v. Ycend
VL,. R. 4 Q. B. 026), is so very much in point upon the
construction of the English statute, with which ours cor-
responds, as in my opinion to govern the present case.
The promise in that case was that the voter would be re-
munerated for any loss of time in going to vote, and there
was no acceptance of the offei- on the part of the voter.
It was argued that the promise must be of something
tangible, and that there was no promise which, if accepted,
would, putting aside the illegality, have supported an
action. The judgment of the Court was given by Alellor,
J., who said : " We cannot doubt that the words admitted
to have been used by the defendant, viz., ' that the voter
would be remunerated for what loss of time might occur,'
did, under the circumstances, amount to an ' offer or pro-
mise ' to procure, or endeavor to procure, money or valu-
able consideration to a voter in order to induce him to
vote (at the election in question). The expression ' re-
muneration for loss of time ' would necessarily convey to
the apprehension of the voter, that if he would vote for a
particular candidate he should receive, either directly
from the person oft'ering, or by his procurement, money
or valuable consideration which he would not otherwise
obtain ; and any assurance of that kind, which can only
be so understood, is calculated to operate on the mind of
the elector as a direct inducement to vote for such can-
didate." If any authority were required to induce us to
adopt this view of the transaction in the present case, it
[IlL'li
304
PROVINCIAL ELECTIONS.
[a.d.
is supplio,! I)v that r.t n '^
'■™ the prc,o„tU" l" ^^''!'"8'":'>»'''" "■ principle
any .U»t,„.,,i„gi„„,.„„„^. Vlktni, ; ™"'7"''«'"
l.e conveyed *" P™"'"" <>r olfer ,„a,.
<'"^"''™"''^'i'''-^<«'».,I87o.(i,p.8.)
\\ "im%
NORTH ONTARIO.
Before Mr. Jc.stice Wilson
Before THE Court OF Appeal "
CbASKILL Af./,o«.,, V. TttO.MA,S PaxTON
,„ ,. ^fspondent.
A meeting of the electors was hGM„f * '
""« VV., a voter, who wa« i,, Z
'noiiey of a lot of xZ.T^. ^"''''"■^ *" the Crown fo,. ti.
[a.d.
> H. L. a 746),
lie in principl,.
' to tho public
> vote without
t we feel our-
i«stion, togiv,.
s used, and to
case, without
to the p'vei.se
or offer may
led.
5-6, p. 8.)
1875,]
NORTH ONTARIO.
806
'axton,
ami Lata of
nU of an old
I candidates
up and the
ing off their
the people,
espondent),
bailees, Was
he purpose •
B treating,
Hindent at
purchase
snt of the
k sliarply
the sup.
Held (rever»in({ WiUon, J.), that what oociirroil was a brutum fiilmni,
or an expreHHion of opinion upon a subject on which every one was com-
petent to form an opinion.
Acts of agency and tiiu decisions hearing thereon, digcusseil.
A ciiargo of bribery against the respondent, where the evidence was un-
satistactory and repuunant ii itself, and rested more on suspicion than
on clear positive proof, was held not proven.
One M. was a member of a townsiiip committee, organized by direction of
the convention \yhich nominatocf tile respondent, and the work of the
election was put into the liaiids of these township committees. M. can-
vassed his school section, anil had a voters' list, which was taken from
him l)y the committee on the allegation that he was not doinx much.
The respondent never asked M. to work for him, but M. asked the
respondent what success he liad. The respondent had no one acting
for him except these committees and some vohinteers, and ho never
objected to tlie aid they were giving him, nor did he repudiate their
services.
IIM, on the evidence, that the respondent was responsible for these
committees, and tiiat M., as a inemljer of one of such committees, was
an agent of tlie respondent.
One H., a voter, held a claim against the respondent, and M. alrove
named, and another, for five years, which heliad been endeavoring to
procure payment of. When canvassed at the time of tlie election: lie
sUted tliat if he did not get it settled he wouM not vote for the re-
snomlent. M. induced the respondent to give his promissory note to
H. for the debt, but did not give the respondent to understand directly
or indirectly that the note had anything to do with the election.
^^'i-b \- ''''i** '* is always open to inquire, umler statutes similar to the
Election Acts, whether the debt was paid in ac(;ordance with tlie legal
obligation to pay it, or in order to induce the voter to vote or refrain
from voting.
2. (affirming Wikon, J.,) That on the evidence, the motive which induced
M. was that of procuring the voter H. to vote at the election, and that
thereby an act of bribery was committed by M. as such agent, which
avoided the election.
In peual statutes (luestions of doubt are to be construed favorably to the
accused, and where the court of first instance in a quasi criminal trial
has acquitted the respondent, the appellate court will not revewo his
nndiiig.
The petition contaijiod the usual charges of corrupt
practices.
Mr. Hector Caincran, Q.C., and Mr. y. F. Pnterson for
petitioner.
Mr. Hochjins, Q.C., for respondent.
The evidence is fully set out in the judgment.
Wilson, J. — The petition charged the connuission of
corrupt practices by the respondent himself, and by him
through his agents.
I .shall dispose first of the charges of treating, beginnino-
with that which is contained under head of number four.
80A
■y at the outsot r iUM .1 Ij '""''^ ^^ ^^"'«^V. I ...a,
^-ti". ^oun.! t.. have Z:)^^^^'^ ''''' '-- to ,...
cent toavoi.l the eh,ctio,.. i)id ! "^ " ""'"'■^' ^»tH-
'f erente..tai„nu.nt at hi. exp t'l!:! '"-"'-''•ink o.
« ectoKs as,se.nl.le.| for the pumis , '"'' '"•'^'""- "^"
o';etion;^.tthetinK,in.,«esE "' ^"""^'"^' ■^-''
Ihe facts vveri' fluif fi,
WHS a la,..e Htten.ia,.er hot'l. " ,n- \ '""'^ ^'''' ' ^'"•••'■
li'Hny of their suppo,,,^^; A^e. T "''' ^"•^' ^''-^>- »-'
^o'ey took the llllutV^rn/tcf , /::,;rr^r '"'/■^"•^^-'
-'-• local nmtter, which he coc^v,,', '. '"'"''"^' *"
'^'-"t to his pre,iu,liee. He JscI 1 "^'" ^I^'""''
P--'n to vvhon. he ulln I , „ "''"' '' "'^""-' ^''^'
--change.! between then. ul J ''r',"'' '^'''^' '>'« was
['•• Pateraon (a supp W tj r'' '"^'^^^
MeCVae, an,| the sohdtor for\h ?''•"'"'" '^'^"'"'''^t:.,
.^aviU M. Can., the vrU^i^Jt^:'^''' ^^^'^^^^ ^'>
would not be better to close the/ .• '■'-'^P""''«nt, if
tI.ou.ht not. and the people "on ' ^ ^ ^'''' '^'^'^' ^^
Pater.son v-as speakin! DonarB.' "' "''"' *'"^^- ^s
'■-potulent, called out < tCt ' f "' ' ?''''^"'^- «*' tho
was made to turn Bruce out a„ '' '"'' ' ^''^"'^''•»' ^'^"
«'-ved down upon the I'un ri "" ''""^* ""^-"^'
t'.en jun^ped up and talked oH-d?"'' "' *^'^ •"''^«"^'
great disturbance, and a 1 .'f T'^"'"'"'^' ^^'^^ -
parties began pulling off C coat^^^' t"! '^' '''''' ^"•'
"^rf en up. Christopher Moo said\ ''' T''""^ ^'^^
n..ht when he got to the mee tin^ wLnT ""' *^" ''
^ yards of it he heanl an awfuT.. M'"' '^'^^ ^^*''i«
•n. and was told not to .« "n ! I /r'' ^' *"'^^' *« g«^
was no meetin.. there -^f J?^'' ^''''^ '^"'^J- Th^re
-ded^-IgotonltXriS'^^^^^ «^ *^- P-
to me ; that it was a shan.e to fi^h fo 'V'^: P^^P'« to con.e
^v^o-'anot«ghtforthen;A\^;^-:-^'^^^^^^^^^^^^
187.5]
NORTir ONTARIO.
307
shako han.lshav.. a .Iriak. an-l ^n ho.no. Unuov was
-...hton;I,,i.,,.,,,,^,,,i, Mr.Pat..,..son,'i;;\w
who wa« the porsr,,, nanu.l l>y M... Foley), a.ul otl.....
aul , was a ,.,o.. thing I wan there, f.,,' if I ha.l „o
l..;.m there s,„n... of the.n wo„hl have been out of the
w.M,low Sonu. of then. we,v awfully fn^hten...!
hou-^ht .t was a regular W.. an. 1 a l)unnyl„;,k. When
I began speak.ng the row cease.l. I was there an hou
or so arul when ca.ne away half of the peopio ha.1 ...
rt. ^yi'-t I 'l.'l quiete,! the .listurl.ane : f r ha,r„o
one what I . li... there w.>..l,l have h.en a l.;.eaeh o .1.
-.sun,MeRae.lrankthere;hewentuptoth,.wti
".k, r nc.yer was aske.l to pay for the drink "-the
. eo n, havng I.oen broken up. an,l the p,.,.p|.. ,, „,
which b oley took ,n it he stated as follows •
One ot M.-. McRaes f..io,.,l,s proposed that he and I
should jo.n in a treat of all hands. I .-efused ; i said if I
reated r would t.-eat all hands. I did so. The,; .nay .1
been about .;J.. or 4.) persons. I feated all alike -pl^Koa'
and McRae's ..iends all alike. [He pai.l for a,. Jys"
supper hen which he had with a few tViends.] I ^J^^l
that n.ght tor supper and for treating; that was the prin-
e.pa sun. I paid ; but I .spent so.ne smaller su.us " ^
had left the .-oon.. The row continued after the m eetin..
.over, and .t was then p.-oposed to treat all han.ls, to
<1" et the people, as is usual o,. such occasions, It was
not done to pro.note the election; both parties d,-ank
fZTf ^ r^^' '^ they would hold their tongues
Thlt t r I" ^' """'^ ''''' *'^^"" ^''' ^"d he "did.
^a IT '''-'■ ''' ---' ^i"'^^-^ ^«-. -d
I think it vvould be quite unreasonable to say that the
^^eat.„g at that ti.ne, and under the circu.nstances, by
Foley, the agent of the respondent, was a treating Jf
a mee ing oi electors assembled for the pu.-pose of
808
PROVINCIAL ELECTIONS.
[a.d.
promoting such election." It was done for a different
purpose, and participated in by both parties, to restore
harmony and to induce the people to go home quieth' •
and It fully answered the purpose, and Jrevented blood-'
shed, and it may be-for no one can tell to what ex ent
sted tr ^^"^' "^"^ "-' '' --'^'-^^ -^ ^-
It vv-as no more a violation of the statute than the im-
promptu suggestion of the successful candidate to ..ive a
glass of champagne to his supporters in place of haWn.a
public procession, which he feared might lead to a dls
turbance, and giving it to about 200 of his friends, was a
violation of Uie statute in the JIuMersJieM ease ,U L. T
^. b. .34.,). And I need scarcely say that the committee
<lid not hesitate to pronounce that the treating upon
occasion was not an act which was contrary to the statute
I have no doubt of that; I only regret that I In obi d
to explain so fully the reasons which led me to f orm t
- opinions I came to in these election cases
DonakS "^T-" 'n' ^'^'"''^ ''' ^^ intimidation by
acent o^t r '' '']''''' '"^ ^"^^ ''^^" ^^e authoriJl
wZ *' "^^ ^•'^«P»'^f»ent, towards George Wharen
I nrr/;T ^^y ^^ ^"^^ *^-- '-- ^
davl'eseoT ■;"'"'' " ''''''' ^^*"«^« ^'^^ P^^-g'
thi^k me un :Z f ""* ""^^ ''^^^ '^^f^- ''' -'^ ^h
M Rae was? f 1''' "^ ''''' ^'^ '''' «^'«* ^-^^ ^'^^^
people. On the last visit he asked Wharen if he had
".a<le up his mind who he was going to vote L ' I sa'l
ft fj::iij: r ' ' ''' -^^ ^^ ^^-^ ^
not klw thl TT • ;■ ''^'^ "* '^•^•"^- ' '^^id I did
fiom tTr^ '"'^^ '* '^'''' ^^^"^ ^^^ovs I wanted
iZfl^rrr' ""'■ ^^^^" ''^'^'''^ «- *« set them
Land'ie J " i'T' '^"' '' ^"«"^"^« ^ *''« Crown
i^and office. I said I would not vote for Paxton • if T
It to IT 71 '-: '''^''- «^ -id 1 :f ri
plters of thrr '"■ *'"" "'° ^^'^'^ -^« f- «- -P-
porters ot the Government, and are in arrears for their
for a different
rties, to restore
) home quietly ;
-evented blood-
to what extent
i — it may have
e than the im-
lidate to give a
ace of having a
lead to a dis-
friends, was a
I case (14 L. T.
the committee
ting upon that
to the statute.
; I am obliged
le to form the
timidation by
he authorized
rge Wharen.
times about
B the polling
'6 it, and the
rst visit that
lost for poor
in if he had
for. " I said,
wn and vote
said I did
)rs I wanted
to get them
I tlie Crown
'axton ; if I
me I would
or the sup-
ra for their
1875.] NORTH ONTARIO
land, the Government
309
.„ ,., , , 'look sharp after them, and they
wi 1 very hkely lose their land. I said I would go down
and vote for McRae just for that speech."
In cross-examination he said, "I could not say whether
the Government would injure me for my vote; at that
tune I had doubts about it, based upon the newspapers
I know no one m my position injured by the Government
ior his vote. I .should not think Paxton nor any man
would nyure me about the vote. I have no doubt one
way or the other about what was said, but I was vexed
at It. . . . I .suppose what Mr. Bruce said was what
he called givmg good advice to people ; he speaks rather
hasty sonietnnes. The words hardly sounded like advice
m my mmd I don't know what they sounded like to
hun. In the exammation he said he then lived on a
Crown lot and there were arrears due upon it. His wife
conhrmed her husband's statement of the conversation
Donald Bruce said as to Wharen: "I canvassed his
vote eight or en days before polling, and also on the
mormng of polhng ; the first time he had not made up his
Hund. On the morning of the polling he said he was
gomg to vote for McRae. I said he might vote asT
hked, but I thought he should vote for a^man wL up!
pored the Government when he was in arrears for h^s
land I did not say the Government would watch him
nor that the Government would come down on him "i
did not threaten him. I advised him only it was better
to support a man who supported the Government "
I am disposed to think, and the conclusion I may say
I have come to is, that Mr. Bruce, who .said "I alway^
work in elections," said what is said by Wharen and hi
ritu l^^r'^T '' *he wife was very convincing; fo
although she said no more than her husband said her
nmm.er as.sured me she was narrating an actual o cur
ence, e.d just precisely as it had taken place. The hu -
band s evidence was given also very satisfactorily in every
way ; ut I refer to the wife's manner as a wftness be
cause It was especially calculated to induce a belief in Z
310
PROVINCIAL ELECTIONS.
[a.d.
t'U'
correctness and simplicity of her storv Tl, f .
he thouffht he hnrl «n;j i n - -"^^t, .saui, or than
whose lan/hirnttCn'^rP T^^' ^''^*^^^' ^""^
Bruces own account, t^l.^d IJ ' •'^'^r'^^" ''
fact,andwastoIdhov;he,r4tb 1; .T"^'^ '^ ^''^^
if he gave his vote in a n? T ^^'"^ '" ''^"'^'^ ^ ^^■^^'
which Bruce wanttl ;:;»: ^T '''' '''''' ''' ^^^^ ^
atio '::?^.i'tf :::^;ir-^ '^^ ^^^^^^-^ *« *>- «^^"-
that he intended in "!,'""' '^'^* "?«» >"'"' ^nd
vote for Paxton ''' "" ''''''' «*' -"'^^^-S '-" to
The reference to the ffovernmenf ^r.»r
a creditor, was a most il. ^ "*' ''"'^ I^^«'*'«" '^^
Bruce, wh^ is an in ' I 'T"^^'?'' ""'' '^' P^^"* of Mr.
standing, :jof;;t'^^^^^^^^^ ™ «*■ ^-d social
was on: calculated to akl: T " ^-^^^'borhood, and
especially as Wharen tT f J '" '"^'^ ^^'^^ ^haren,
P-sed L hacfs^ra ^^r^lj^r """ '""^ ^-
persons having induencewTthh!p *^^ "^^W^^s of
Crown Lan,l debtors LI 'if '7™"'"' ^"'"^
ations and re-valuatioSTn , ! ^^ P'"'^"""^ ^^'»-
showing favor Tttm w, """^^ '^^^ *'^^"' ^^'^^«' ^-1
candidate, aJdea in rhlth,"^'?:*"' ^'^ Governn.ent
the Government nna;t[h:rn ^^ "'" °PP-^'
1«7,-.]
NORTH ONTAKIO.
311
is repugnant to every notion we have ever believed to be
the principle and only rule of action of our Government.
Fi^nding the fact of intimidation to have been practised
by Mr. Bruce upon or against George Wharen in order to
induce or compel him to vote for Mr. Paxton, or to refrain
from voting for McRae, the law declares that .such act shall
be deemed undue influence and a corrupt practice, .sub-
jecting the person guilty of it to a penalty, and avoiding
the election it the act can be charged personally a-^ain.st
the .successful candidate, or upon his duly authorized
agent. The question then is, was Mr. Bruce the duly
constituted authorized agent of Mr. Paxton, .so as to make
liim liable for this act of Mr. Bruce.
The facts, as applicable to this part of the case, are • Mr
Brace lived in Beaverton ; he worked for Mr Paxton
During the election he was at the Reform convention as
a spectator. When he was there he was appointed a
delegate for Rama, as none of the Rama delegates were
present.
Mr. Paxton was at the meeting, and he was then nomi-
nated a candidate. He continued, " It is likely I spoke to
Paxton ; I did not offer to support him ; it is likely he ex-
pected I would support him. I always work in elections •
I was not on any committee ; I attended committee meet-
ings. ... I saw Paxton during the canvass. He knew
I was working for the cause, and I was a strong supporter
of his, and that I was working for him too. Paxton did not
attend the committee meetings in Thorah; I don't know
that he knew of such a committee. At the committees
men are appointed to canvass; I was not so appointed;
1 did what I could. I made no report of what I was
doing to the committee. Paxton did not ask me, to my
knowledge, how people were going to vote. I may have
spoken to Paxton twice during the election. I was at the
meeting of Paxton's at Birney's hotel."
In cross-examination: " I was not appointed by any com-
mittee, or by any party to work at the election." What-
312
PROVINCIAL ELECTIONS.
[a.d.
ever I ,lid I volunteered, and did of my own .rood will l
never canvassed witli Paxton " ^ '• ^
t!igl>t' of us " "^ seven or
of the ,„eoti„g. mnksVz\Z7:t:\Tr
meeting,. Could not »nr if Pav(,„„ t„ .u "•'
comnnttemTlioiah nil „ , "" """■" "'"' "
l«ts, and got he vt« ,S , •' ''"'""' ''™'- ™'«"'
vote, uis^ikc^B ui wi^:r:r"','°''''" ""•''■ ™"''
not «>y he did. He would heik Iv^' r""""" ""' """"
-y of ,ueh matters. B ut ^^ '"'™ """«"''"8 '»
aetive than di.,oreet Th„ T,!! T ' '°""' ""y '"»'«
ta.y eouunittee of tj^„l""';;7'"'"- «» » voinn-
Refonnei, for their owTnr;, T "'"'<' "P ">»■ "'«
to do with appo,": „n Z^ZJT" '"' """""»
friend of the eause Pavto, "''t"*'.""' '"««"«« Ma
connnittee. He held pubH ""' ™"""S '° ""o with the
connection Bruce had w^fl, fi, /^f.®^"^'^- ^ i^now ot no
w^ a volunteer, a:rwre<St':h'e:r''«"^ '""' '"
Adam Gordon said, " Mr Pavfnn f« i li
whenever it could nr.,!) ? u ^ *" °PP«'"*""'«e«.
peo.e„ott„wottst^?-s\L^:r„i';;"
187').]
NORTH ONTARIO.
313
at the convention which cho.se him, that in governinr.
tlicirsub-coininittees they .shoul.l be careful to .see that
the election wa,s carried on properly, and that no ra,sh
trien.ls should do anything to hazard the election Mr
Paxton wa8 pre.^ent at the convention, and spoke .shortly
at It. I don't think Paxton took part in fonnin.^ com-
mittees or in attending them, there was so little time
The formation of committees was spoken of at the
convention. It was nrge«I upon the .lelegates to see that
their sub-committees were put into proper working order
The work of the election was put into the hands of the
township committees. I only knew of the formation of
the Port Perry coinmittee; Mr. Bigelow, I suppose, or-
gani,55ed it. We heard there were other committees " The
evidence shows positively there were committees in the
respondent's interest in Mara, Thorah, Reach, Port Perrv
and, as David M. Card thinks, in Uxbridge also • there
may have been committees formed in his interest in other
places, but it was not shown by evidence there were
Keeping in view that the inquiry is as to the agency of
Donald Bruce, it is to be considered what facts are relied
on by the petitioner to show that agency. Bi'uce was
a delegate, named at the convention which nominated Mr
Paxton as a candidate in the Reform interest, on which
side Bruce takes an active interest. He canvassed in this
election to some extent, and particularly the elector
George Wharen, on behalf of Paxton. He was a zealous
assistant, and, as he .said, he always works in elections
He was not, however, appointed .._, the committee to
work, and he did not report to the committee what he
did. He attended at two. at least, of the committee
meetings in Ihorah. but he was not a member of the com-
mittee. Mr. Robinson ,says Bruce would be likely to
talk of the work at the committee-room. Paxton knew
Bruce waj. working in the cause, and was a supporter
ot his. and that he was working for him too. Bruce did
not canvaas with Paxton, and he says he acted through-
out as a mere volunteer. He attended one or more of
314
PROVINCIAL ELECTIONS.
[a.d.
others, by Paxfcon at Brectin not ff "^ ^'^'^ ''^'^-^^
the election. "' "^^ *« ''« anything to avoid
Then as to the committoes. Mr P«vf..
by the Refonn Convention at m .iehl vv7'' """"'**^''
It was there nientionorl ih I f *' P'"'"''^'^"*-
committees, they should iJoZf^'' '"""^ ^^''''^ «"b.
carried on prope.Jy ti" Tf " *'^ '^^^ *''^' ^^-«on was
these sub-eonnnittees fn t to" "' "f" "''^''^'^ *° P"t
-o'-k of the election was p,r:L";, "f '"" "■^'^'•- '''-'
«hip eonnnittees. The'e wa 1 H , ^"'"'^ °^ ^'^^' *«^vn-
"^ Thorah, and a p.^J^^^T "' *'" ^■''■''«^-^■•-
Thorah for election purples ;." "'^^ '^^^P^^"^'^^ >»
to be a voluntary as.sS: •.f'^T,^ .1"'""" ^ '^^'^
then- own purposes A,.d f)^ '^^oriners there for
-ittees in thi z-id ng in'the"! "^"Z'--- o^her con^I
oneatPortPerrvbein..nw, r^""''""*'^ ^"t^'-^^t; the
P-^ner, M. B^^L:::!!':^^- ^ tl. .espond^nt'
ar, x/onaju Jiruce an atrent r>f ^u
authority direct or i.nplied i^f. .1 ^'^'^Pondent, by
' If he M^ere not, then "'' ^"e^pondent himself /
4~t^^po:r^^^^^^
a Was Bruce ar.n„f„r, '*"»'««. tllen
"y of .„e ccn'ST ^' "'■ """"« """o-- "'= autho,.
All the cases show q i
authority ft.om the i::';"""*^'; -"- ^-^res, that
be shown creating orsanct on^ ^ ' *^'' '^"^'^^^e, must
before the candidate crbrrd? '"'"^ *^ '^ ^^« ^^^^
of such person. '"^^" responsible for the acts
^^^^t'i^^^C^^^P'^^y^ontened. It may
alieged agents in the inlf ^of V"^"f ^^^ «^' ^b'
certazn circumstances, and itsl ^'^'^^^ates under
S^ves rise to all the difficultv of I 7'"'""'«t*"<^e ^^hich
n^cuity of determining whether
1875.]
NORTH ONTARIO.
315
they are or are not sufficient to raise a just presumption
that the candidate has recognized and adopted the acts
of the person assuming to repi sent him.
A large allowance is and must be made for the services
of friends and volunteers who are acting for the sake of
the cause which the candidate represents, and without
any pretence of authority from, or any recognition by
him, for, or of the performance of these services.
The candidate may know his friends and others are
workmg for him, and yet it is not clear he is answerable
for what they do, although he does not in every case re-
pudiate their acts and services.
I shall refer to some of the decisions upon the subject
They are the opinions of able, disinterested men, and I
thmk It will appear on a perusal of them, that while ad-
ministering the law in so difficult and delicate a branch
of It with the most perfect impartiality, there is a general
desire exhibited not to press the law more severely than
they are compelled to do, to require strong proofs of the
alleged illegal acts, to give the benefit of all reasonable
inferences in doubtful cases to the persons charoed to
make allowances for the acts and sayings of people durino-
such exciting times, by not putting the harshest con"
struction upon them, to require full and fair proof of
agency before accepting it as established, to allow much
latitude for the zeal of supporters of the candidate, with-
out holding him to be answerable for their conduct, al-
though he is getting the benefit of their services, and
generally to uphold the election if it can properly be
One who visited voters, and made appointments for
them to see the candidate, and who afterwards introduced
them to the candidate, was held to be an agent. Bewdky
case (19 L. T. N. S. 676). In the same case (1 O'M. & H
17), Blackburn, J., said : " Every instance in which it is
shown that, either with the knowledge of the member or
candidate himself, or to the knowled.?, of his agents who
had employment from him, a person acting at all in fur-
316
PROVINCIAL ELECTIONS.
[a.d.
thering the election for him in trying to get votes for hi,,.
IS evnience tenchng to show that the person so acting wa
authorized to act as his agent."
One who is on a co,n.uittee, who attende<l its nieetin.rs
who canvassed, and whose canvassing was recogniz^'
IS deemed an agent. IFestbury case (20 L T N S Ifi '
Askmg an e.nployer of woricmen for his vote and interest
may mean, "Go round an<l canvass your worl<..,en fo,
me, and may create «.. .agency (s. c, 1 O'M. & H 47)
A supporter of th^ canu:date gave a feast to his friends
on the pollmg day. He twxce canvassed with the candi
^late; he had a hst - the vot. -s on Lanivet, -nven bv a
agent of the candich... • Uhough given to him on^y
gioat pressure ; he brought people to the polls ; he ha^l ,
canvass book HeM, these facts were evidence of a'en
Bodmm mse (20 L. T. N. S. 98,')). "■ot.uty.
A supporter gave a public breakfast on polling day He
provided vehicles to carry voters to the poll. The candi!
date on election day, wrote and thanked him for what he
had done. Held, that went a long way to establish agenc
but It was not conclusive, ffcre/ord case (21 L. T N s'
117). It v^as aLso shown that the same supporter was
data Held tha that additional fact, with the other acts
above mentioned, was not conclu.,ive proof of agency Z
>t was further proved that the committee-men had brou^h
voters to the breakfast, and that A., the recogni .ecUgent
had spoken of the supporter, after the election, as htv !'
done much good service. Held, that all these acts to<.ether
so connected the supporter with the candidate as tolak
the^one liable for the acts of the other (s. c, 1 0'M.rH
Employing a person to act for the candidate on the
candidate putting himself to some extent in the hands ,
that person, or the candidate allowing that person to malL
common cause with him to promote%he flection iet
dence of agency. Taunton case (2 O'M. & H. 66).
187.5.]
NORTH ONTARIO.
817
A person upon a committee, but not shown how he ijot
there or what he was to do. who wrote a letter offering
to pay the voters' travelling expenses, was hel.l not to be
an agent. The d udge, Bramwell, B., said : " If we were
to hold this man to be an agent it would make the law
ot agency, as applicable to candidates, positively hateful
and ludicrous." IFindsor case (2 O'M. & H. 88, 31 L T
K S. 133). In the following case the same Judge said •
"Mr. Dawson attended the respondent's committee he
said as many as twenty times. He was also present at t!-
committee, and on the day on which he bribed the vrier
ho was busy in getting up voters who required particular
attention. I should have thought that itself was enough
; )l '"^l ^'^ "'" '^"^tl"»g. either .solicitation or persuasion,'
to them. But not if he were only to bring them up and
to use no mfluence with them. Durham case (2 O'M. & H.
134).
A candidate will not always be answerable if he accept
the services of a volunteer. Staleyhrichjc case (20 L T
N. 8. 7o). A candidate is not obliged to repudiate volun-
eer services (s. c, 1 O'M. & H. 70) , Taunton case (2 O'M.
« a., bb); Herrford case (21 L. T. N. S. 117)
A mere volunteer cannot hurt the candidate. Mellor
J., said: "You must show me various things You
must show me he was in company with one of the prin-
cipal agents, who .saw him canvassing, or was present
when he was canvassing, or that in the committee room
he was m the presence of somebody or other acting as a
man would do who was authorized to act. In puttin.. all
these things together, you satisfied me that the man was
a canvasser with the authority of the candidate's agent ;
hen I do not look with nicety at the precise step,s, but
(2 0'M."& H^lSr'*^'"^ ""^ *^^^ character." Bolton ease
In the Londonderry case (21 L. T. N. S. 709) P was
appointed by the Liberal Registration Society to'conduct
the business of the revision, which shortly preceded the
election. The candidate subscribed liberally to the funds
318
PROVINCIAL ELECTIONS.
[a.d.
Of the society, am] anprove.I nf P • ^^'^
«taff-of the .society w! P J '.-f '^ '^'r"^""''"*- ^1...
"•^'^d in pro.»oting i),e electioj n"'''^''' ^^''^'^ '^^"^--^^rcLs
«oe.efc^V directed in a -n-ea Z" ?. ''""""'ttee of tl.o
'j'-to.. and the candid^ ^r ;;;"!« --^'"^ of the
directly with P. by letter wiir r " «o""mznicated
I cannot concur in the opinion fjf ""' '^- «^'d:
«-;di.iate. .vl,o choo«e.s to a L". e "/ "7 '• "^P""^^'" '^^^ '^
'»^^k« speeches in his favor can o..'"' ''^^"'''"^' *«
candidate as an a-ent or H \ '' ^'""'^«'f "Pon the
-sponsible for the ^ o' ^ T"'"'^^' '^''""'^ '^ ^-'
-favors to dissociate hil,;- *"'" "''-' '- -tually
^«'^edbythecandidatesa.eTtttl!"l" ^""'^'«^^' ^'««
He declined, but said he would ''"' '^ ^^e connnittee.
h« «P0ke to them and reprtluh:""''u^ ^'^ *-^"*«;
- Hgent as to them. Ckbu't T -''''''' ^^ "«^
.-v-ning point was that he wa T^uf V'"'^ " '""^^ '•«'^'
sented to be the nerson . , ^^ forward and con-
those votes" Th f T P''" ^'^'■"n t^i^y relied fn .
t: votes, ihe landlord had nnf ir. *i ^"^ Sf'-''^
undue influence. ""^ ''^ ^'^'^t case used any
^hom faith and confidence t '^^"""^^^r of persons in
-nd between whom there "aTs" ' ""' '^ ^ «^»^'date.
^dea is a little differentl v ZT "f ^''^^^^- ^he same
20 L. T. N. S. 238 ^ "'^^^^^^^ '^ *he same ca,se. "n
In the Stakyhridgecase (1 Q'M ^ R '7n^ t.
7d : " As a general proposition' fh^' J ^' ^^'^"^^"••"' J-
Ployed by the candidatTr. ^* ^*-'- * Person em-
«."ent) would go a gre^ tavT"" T' ^^* ^ ^«*« -- an
-^ent; but IdfnUhirk wlltr ; "^"^"^^^'« ^« -
^d fast rule on which we ca„ at /h T "^ ''^''^"*« ^^^^d
of corruption has been brought hT . ^^''^^^^^ « «^««
"wrought home to a person who was
187.).]
NORTH ONTARIO.
819
w.thin this limit, tho seat .shonl.l be vacated. The effect
of tl.at wouM 1,0 to Hay that whenever there were
volunteers who were actin. at all. an.l whose voluntary
actmy was not repu<liate,J by the candidate or his affents-1
whenever, ,n tact, a person can.e forward and said. ' I will
act tor you and endeavor toassi.st yon.' and the eandi<iate
or h,s agent .said, ' I an, very nmch obliged to you, sir'-any
corrupt or improper act done by that volunteer, althou-h
unconnected with the nieinber, would render the election
void. To lay down such hard and fast rules as that woul.l
he whole facts taken together, an.l it must be determined
m that way whether the relation between the person
guilty oi the corrupt practice and the member was such
as make the latter fairly re.sponsible for it " " But in
Hiich aca,se, where I am convmced that they were londjule
volunteers actmg for then.selves, not selected by the
member nor chosen by him at all. but really l^oad Jide
and in a business-like manner, the voters of the district
choosing sober and luspectable men in whom they had
conhdence. to be the head of their own department and
acting together a messenger who was sent by one of them
IS not so d,rectly connected with the candidate, or any of
his recognised agents, as to make him responsible for the
misconduct m offering a bribe."
In the Westminster case (20 L. T. N. S. 238). an associ-
a ion was formed with the view of supporting certa n
da i r '?r' ": ^ ^^"'^^'^*^' ^"b.scribed to Ihe asso-
ation, and had been its president, but resigned before
hi can idature commenced. He was selected as the can-
didate to be supported by the association, and thereupon
many members of the association canvassed for hh "
These canvassers acted independently of the candidate's
anvassers, and uncontrolled by his committee. The can-
a ttr'T'-Tf ' ^^ ''^""^* "^ *^« «««-*-ry of the
hZTTlT^'^'i ^^" "^*^ «^P^«««^ the canvassing
books. And It was held by Martin. B., that the members
fw*r
820
PROVINCIAL ELECTIONS.
[a.d.
in tho ^,„,.^.i«n. case (20 L. T. N. S. 82.'}, 1 Q'M & H
1 ■•«). a circular was issud by a Tory ...oefcin J. H .
wa,s .si^mod l.v persons so.,,, nf M ^ ' "'"^'''cular
ReKistrationSo ietv '^V;;;:* t'-'-" connected with tl..
a...l that the association which issued t w T ","'''
^'•ove said: "It was n.-ov,nl fi * Ti! '' " '^"•^*''^^'
not so in the old sense of being oce. pied I a t T""
ftxed comniittee Tli„c^ . ' -^ "• certain
respondent' "a ia. ,M JT" 7"'" '""°"''"'' "''" *»
the election Ta .ll^J '^ r'T?"™""'' -'"I'
/«.« bring the ca,ewZM' ,""'"'/'^'» """"'! ;»««
puthi,„.,.,f, ,.,. „,„ J„ hInX t in ^XtS '""
tain persons or imd n,n-l„ "^^ °^ ^^^'■
I ii-', oi jiad made common cause wifK ti, _
as to make him liable if fh«,. v .7 *"®°*' «»
i"oting his elec 1 -H ? "' *^' P"''P«'^^ «*" P^o-
Tn fK \,''^'^''' '^^'nuntted acts of bribery."
-id: mt ITarb "" ^'.T ^ «• ^^>' ^^--"> B..
be issued 0. Ti^^^tV^^^^ placards may
not by the cTi^d^^a 1 h .7'"' "^ '^' '^'''^'^' ^^fe'^ed
hin.. Their ;tri^^^^^^^^^ -P-nting
canvassing." ^ oeyond the mere act of
1875.]
NORTH ONTAUIO.
321
^3, 1 O'M. & H,
'^g; the circular
lectod with the
3. or by persons
i« ii).spon(h'nt's
wa,s conductod
Justice VVillcs
tfcjn^' nieiuher,
■* tidjpted also
f the election,
3ircuhir agent
:. 270).
'. Mr. Justice
pondent was
oke at uieet-
ive partizans
Tliat there
vJiicli might,
which were
•y a certain
ed with the
^ected with
ould prima
and would
ondent had
Jids of cer-
h them, so
se of pro-
annell, B.,
cards may
n, signed,
)resenting
ii'e act of
In the Limerick am: (1 O'M. k H. 202), Mr. Baron
Fitzgerald .said ; " If the clergy make the cau.se of the
candidate their own, and give him the benetit of having
what may be equivalent, in its effect upon the election,
to a committee-room conducted by themselves in everv
pari.sh, they being the canvaHsers ; and if it then turns out
at the time of the election that the candidate represents his
cau.se as identical with that of the clergy, and publicly
gives out that the (juestion between him and his adver-
saries is whethei the clergy .shall be put down or raised
up, and is accompanied by them through the streets can-
va.s.sing; if that be ,so — although the particular clergyman
of the parish be not the party who accompanied the can-
didate in canvassing — I, for my part, will doubt long
before I say the candidate is not, as far as his .seating in
Parliament i.s concerned, responsible for the acts of those
parties in their seveial districts or parishes."
In the Tmtnton cmc (21 L. T. N. S. 169) there existed
in the town a Conservative and a Liberal Association,
each of which generally piuiaoted the return of its own
candidate, and assisted the registration of its own sup-
porters. The managers of the Conservative Association
having circulated a<ldresses and papers issued by the can-
didate, will be pi'i'sumed to have done ,so with his know-
ledge, or with that of his agents, ,so as to constitute the
association agents of such candidate, and to make him
responsibk for any illegal acts of its managers. Black-
bum, J., saitl : " We have it that the body are acting as
canva,ssers for Mr. Cox — actively acting in promoting the
election ; and that fact, I think, we must fairly take it
was known to him and his people. Now, does that , with-
out any more, raise a prima facie case which would call
for an answer ? I think it does. I think when it appeal's
that things are done openly in that way, which in the
ordinary course of things would not be done except with
the cognizance of a candidate who sanctioned them, the
fair and natural inference, in the absence of proof to the
contrary, would be that they were done by a person acting
^f^M
322
PROVINCIAL ELECTIONS.
[a.d.
were io«rf /?rf, thev wnnJ i 1 repudiation
for their acl! The oZ . T '"*''"^^ ^' ^^^P^'^^i'^'^
i acDs. ihe candidate may show thnf fL i, i
his favor-done for him nnl ., ' * '^^'^ ^^^^ i»
show the contr ry I Lk rth r "" T'^'^^^" ^'^
benefit would bederived it "h r""/^"^ '' ^^«^'^-« o^'
assistance was so impl tanT 6?!^" Tr~"^"* *'^^''''
fairly established this thatThetool.r^'"^'*'-*'^^* ^^
did not hold them off o tpud te^^ T "^"'^'^"' ^"'^
consequences, and be res^s^^'t "' "T*''^ *''^'
^ In the Taunton case 'l W LuZTt'f'''-'
Blackburn said- "I think «ll , '^' ^^"^ '^"««ee
that whenever a perfon is in '"' ''" '' '^ ""«' *° ^^^^
ea^Klidate. or has ^^^.^1:2:^:^, '' '^
on his election and to act for him tW ^ '^""^
to show that he is his agent/' '' '"'"'^ ^^^^^"^'^
Lawson said: " I think Mr. Justice Grove hf '""
admirable definition of it in « l.f ^' ^"''''" *^»
the candidate is respoL^ i:;ltan: W t!? ^^ ^^>'^
.I^WWedge. carried on t^^!:-;::::^^^
•senously opposed the one to the 0^^ '^ ''^ ""^
bi%forr ar;^tVetrf "^' '-- ^" -p-^-
does not appoint and wh? T , '=^'"'°^tt««« whom he
although Tkir tLy :: ::it;f ^ ' '^"^' ^-^
-ivestheirservices.an^.;riXtinrli:
1875.]
NORTH ONTARIO.
323
bound to repudiate them. The latter case is quite opposed
to it, because it is based upon this, that if the candidate
knows that material services are being rendered for him,
he must disclaim them and the persons giving them, if he'
wishes to be free from the consequences of their proceed-
ings.
And both cases were decided by the same able Judge,
Mr. Justice Blackburn.
The Limerick case (excepting in an important particular,
certamly, the fact of the candidate canvassing with the
clergy) agrees in one respect with the Taunton case, last
referred to, that the candidate identifying his cause with
the clergy, and taking the benefit of their services, is
bound by their acts.
It appears to me also that the Westminster OT.?f, decided
by Mr. Baron Martin, is not in accordance with the Black-
hum case, decided by Mr. Justice Willes, and the Wakefield
case, decided by Mr. Justice Grove.
I cannot do better, after reading most of the law on the
subject, than accept as my principal guide as to what will
constitute agency, the rules of Mr. Justice Grove in the
Taunton ccm, and inquire whether the candidate or his
agent did employ the person whose conduct is impugned
to act on his behalf, or did to some extent put himself in
such person's hands, or did make common cause with him
for the purpose of promoting the election ; and in the
Wakefield ease (2 O'M. & H. 200), when the sa.ne learned
Judge uses the like language of the candidate placincr
himself or allowing himself to be in the hands of certain
persons, or making common cause with them.
And I think I ought to adopt the ruling of Mr. Justice
Blackburn in the Taunton case, in determining whether
the acts of Donald Bruce, under the facts detailed, made
him the agent of the respondent, or made the Thorah
committee the agents of the respondent, and Donald Bruce
the agent of the committee. The Bewdley case (1 O'M. &
H. 17) may also be relied upon, and some of the others
before given.
22
324
PROVINCIAL ELECTIONS.
[a.d.
Looking at the facts before mentioned relating in i^
agent of the respondent within the effect and operation
oi the law, so as to subject the respondent to Tl e c n
equences of Bruce's act, in his dealing with George"
Wharen as to his vote ? I am disposed to think that Rnf
must be considered to have been such ^ent ttf^^^^^^
his conduct before stated, and the knowledge £ ,^^
spondent had of his services in promoting lieelelt
The respondent, according to the evidencrhlT
sons or bodies of persons acting r£t of """ ^'"
-curing, and bringing up voters exc "1" r'"'""^'
;::rrthr ^^^^"' ..end; z^i^z
hands Th '"r =""'"* '^ '^' '^''''^'^^ ^-sin thJr
hands The respondent was receiving and knpw h.
receiving the active aid of Mr. Bruce tnd others HkeC
He never objected to the aid they were eivinrbTn T
d;d not repudiate it, nor tell them the" wl fac^", ,f
ciously. and basying themselves whenTw ^
wanted. He knew tliere was a isMn what thT" "
doing, because he cautioned them as to7b. . ^ """''
I do not know how else to de^wir Mr 3:0^^^^^^^
^icrSi^^ri^-nr;^^^^
respondent's business. "" '" '"'' "'»'" ">'
^m.^:^tr2^JZ ""'r .^'*-'^ " *e private
the debtors ofhr^tni"'"*"™ '" '=°"'"« "P""
then, of the,, JoZS^^rthl^'Z''^ '"'^"■™' '^""'
of it, and told him toLrllfJlTd"?"??'"" """
to his, the respondents, p-^Idtewbt; T' ''" ''°^*'"""
eould it be said, aithongE Tl T ^t tZ:' ""'7:
be called a volunteer, that Mr P.v.„! '"'"''"
give credit to his debtors for 1,. "! "'" *"""<' "'
paid on his account for M, Bruce "'''' """* "'^^ "'^
."Sd :Jt:: !,;■ i~ r te"h?r -- --
^^Pondent, and after his „:„;*:; tlt:,t:J:
1875.]
NORTH ONTARIO.
325
interview with Wharen was on the morning of the polling
day. I am also of opinion that Thorah township committee
must be considered to have been the agents of the respond-
ent for the purposes of the election. The reasons I came
to that conclusion are before fully set out.
I must assume the respondent, as well as his a-ent
Mr. Card, knew of the Port Perry committee, and ofthe
others also of which Mr. Card had knowledge And I must
assume from the above facts, relating to what was said at
the convention as to the formation of these committees,
and that they were to have the general management of
Uie election, that he knew also of the organization of the
Thorah township coi .nittee, which is the one with which
Mr. Bruce is s . have been connected.
The like ra^::. n^d principles upon which I have been
obliged to hold Mr. Bruce to have been the agent of the
respondent, equally oblige me to hold that the Thorah*
ccnimttee were the duly authorized agents of the respond-
ent Holding that as proved, was Mr. Bruce also the a<.ent
or the committee ? °
I am not fully satisfied he was. He was not a member
He was not deputed by them to do anything. It is not
shown that they knew what he was doing. He never
reported to them. His attendance there twice may have
been merely to talk over matters, and to give them such
mtormation as he was possessed of. These circumstances
will not warrant any act of delegation of powers by them
to him, nor of any acceptance of his acts by them
In the South Ontario case (post), I came to a different
conclusin with respect to this question of agency of the
Oshawa committee. I gave too much effect to the services
ot committees, and of the members of them, and of others
acting for the candidate, and to his knowledge, and ap-
parently with his consent and approval, by holding them
to be volunteers, and by exempting the candidatt from
accountability f^r the acts of such bodies and of such
persons. I have since reconsidered the opinion I gave in
that case, and I think the first impression I had on it, that
n ;
326
PROVINCIAL ELECTIONS.
[a.d.
-pn^sed the opinion which I tlivetd i'ltr""' '
that I should sive it in f« J i^ .!. ''^*' '"•'l^^^''
thing, in suppor of the eltr '' '"•'""-" «*^*« «t'
■ against thenf It I it '/r r'"™' ^^*h-' *han
matter then as I do nowl 7u^ '"' ^'^'^^^ «^ ^^o
avoid the election LTe^ivi: on'" ^"/'""^^^ '^
at Halletfs tavern to v l.^d ^^ Vjr U^ '"'■ '"'""^'^
to the 66th section of the ElecrA'atm^^^^^^
it was not in anv mannAr „^ ^, Although
«tHngenc,of the'stXtr Il^sa^r ^"1- /'^ ^^'^
responsible for all volunteers but iT'^t?"'''^''*''^ '^
knows of their acts in his inte.;st and hi I' '' '"
to go on without disclaimer P^""""'*' *'>^'"
them rnralt;tf:f':f ^ ^^^ ^^^ -^. ^-wing of
escape the conseqis ^^ ^'^P-'-*-"- 'nd
them. ^ resultmg from, or connected with
If it wa? otherwise there mirrhf Ko j
and a legion of private frienSean ' "^ ««'«'«'ttees,
be, treating and bribinc; anH . '^'^^^^^'ng and. it may
election of^hei InSte an I'^-r'' """" ■'^«""»^- *'-
and he would imll^^::;^,'- '''''' !^°'"^-'
F"oved, merely because they vet ^H ^2^^^— re
candidate had never annoinf^ 3 ''''/^^""teers, and the
or openly identi J SS^tul^r'^^^^
was said they were fightinlfJ t ' ^""^ ^'^'^^"^^ ^'
candidate who represfnteSlt '^"''' "°^ ^"^ ^'' '^^^
>vas notorious the whi bul. ' ^.t'^' '^^^*^"^«' '^<' '*
— eintheha!:.^^^^--^..
■i <:
1875.]
NORTH ONTARIO.
327
ations and the township committees, and in those of
private persons, of whom Mr. Bruce was, in my opinion
an.l to the knowledge of the respondent, certainly one.'
I find t^s third charge to be sustained against the re-
spondent.
The remaining charges on personal grounds are pressed
agamst the respondent. The first one is the allecred
bnbmg by the respondent of Nichol Leppard. [The
learned Judge here reviewed the evidence, which showed
that up to the polling day Leppard was hostile to the re-
spondent on account of some difficulty he had about a lot
of land, and then proceeded :]
In every way I look upon Leppard's evidence as un-
satisfactory and unreliable. It is repugnant in itself, and
•t IS directly contradicted in some respects. I see, how-
ever, the great fact that Leppard, having pledged his vote
to McRae, changed round immediately upon the conver-
sation with Paxton, and that conversation was admittedly
about this land, and Leppard's grievance against Paxton
How was that change brought about ? In my opinion
there is strong reason to believe it was brought about by
Paxton's promise to Leppard to get another lot for him aj
good as the one he had lost, or to fetch it out all right for
him, and that the change of side from McRae to Paxton—
from the person he was pledged to support to the person
he was pledged to oppose— was effected by the promise
then made by Paxton. I am not prepared, however, to
find this charge proved against the respondent ; it rests
more on suspicion than on clear positive proof, and the
petitioner might have given more testimony on the .sub-
ject by the examination of Mrs. Leppard ; and as that has
not been done, I do not feel disposed to convict the re-
spondent and to subject him to such highly penal conse-
quences, so long as I do not feel b.^sured the offence has
been proved. Although I may beliove the transaction is
surrounded with the gieatest suspicions. lam glad to be
able to say that the charge has not been proved against
the respondent.
m
*• 'i
328
PROVINCIAL ELECTIONS.
[A.D.
lor twelve „,■ fou*e„ yl .'!™:n r' °' t^*""''
account with Paxton beCtt tt e o SnT^r
wheat h,j 3„y ^„ ^^^^^ T^nceTu A '
Paxton'smilJ ThpvnroK.; • '"""^^ ^mie they ran
the election. I SelZoZ^':', ' '''^'" '" ""^ ^""
a settlement fo/rilt"^^^^^^^^ ^^^^^^^ *«^-^
to me. I applied to Paxton and to^Ma^^^^^ Id 7^ '"^
Paxton always said he would settle T ''""''•
had paid it to Paxton. Marsh sad h ^'""r '"^^ "^^^^
it settled. ^^'^^'^ «ai<i he would see and got
"I told Marsh I would not vote fo Paxton nnl .,
account was settled, and he said h. w i J . ''' *^'^*
settled. I never talked il v V ."'^^ ^'^ ^""^ ^^^t it
of the election Marl sLr n '' ^'°"* ^^^''^^^
Paxton, and he did and T K T"^^ ^" ^^^'^ ^"^ see
Paxton for $110 1 ZiVeTf' T ^ "°^^ ^'^^^ 1^^
Perry to collect, for^wls ^t .^ .^""'^^" ^' ^^^^^
Marsh, on the Saturday before the In " ' "" '"^•
.'"e the note he had Jt for le at 'l ^'f! ?^' '^"^'^'
»t to Mr. Billings at plt Perrv Th.n . ^™ *' ^''^
(Paxton) had been a good fZnd I '';''. *''* ^"'"
bad he and I should quarrel Tin 7' T^ ^' ^'^ '°'^
the best we could frPal„ If /?' "^ ^^'^"'^ do
about hVe years ago I sold V, \' ! '*''^- '' ''^
Trounce, and I had been ' ''^'** *° ^^^^^ and
settlement. I had two" onT^Iir ^^^ ^'^^ *^ ^^^ ^
what I meant by .. wo^d:' j t ^M ' ^ V'^^ 1
had not the team out. We all voted IM J'"' ^
are $200 arrears of rent against^ bu h"" '"' ''"^
arrears. The note is not pL I Zild ! , t'' ^'' °" '"'^
Paxton if I had not rrnf tT . "''' ^^''^ ^oted for
for McRae eilhe ° ^ "'''' ""^ ^^^^^ ^ ^ave voted
1875.]
NORTH ONTARIO.
329
Cross-examinacion : "I did not tell Marsh that if I did
not get the thing settled by the Monday morning, I would
sue him on the Monday morning. I said if I did not get
it settled I would not vote for Paxton. I spoke to Marsh
about not voting for Paxton about a week before the
polling day. That conversation was in Tom Walker's
t«vern at Port Perry. I don't know that I ever said I
would sue Marsh for the claim I did not know where
to collect my claim. I threatened of course to sue the
claim at different times. I threatened Trounce to sue it.
To the best of my knowledge I never threatened to .sue
Marsh. I did not threaten Marsh at Walker's hotel to
sue him that night if I did not get the money or a note
nor to sue him on Monday after if I did not get it settled
or a note for it by Monday. There were quite a few in
the tavern at the time Marsh and I were conversing.
Mr. Shaw was there, so was Reuben King, I think als^o
James Grove. Marsh did not say, that I recollect, when
I said I would not vote for Paxton, that I must not speak .
of the election in connection with that matter, nor did he
say, that I recollect, that the election would have nothing
to do with that claim. Marsh said I need not be afraid
but I would get my pay. I don't know that Marsh said
anythmg to me about the election. 1 did to him."
He was shortly after recalled. He said, "1 look at
the note; can't read it; believe it to be the one."
Cross-examination: "I know John Phillips; did not say
to him if I got S20 I would say nothing of the matter.
I did not know I had to come here till last night. I did
not threaten to come down. 1 had a conversation with
Phillips about giving evidence of the transaction. That
was two or three weeks ago. I did not say to him if I got
$20 I would not come down and give evidence. I never
talked to Bigelow of this transaction; did so on Saturday
last; he said if I came down it would be worse for me.
I did not say it would be worse for Paxton if he did not
settle with me, for I would come down and break the
election, or anything to th:it effect. I did not say to
Ilr
380
PROVINCIAL ELECTIONS.
[a.d.
BigeJow that if Pavfon AiA .
faction I .ould ITL^Z "'"^ •'> '' "^ ^''*'^-
a few minutes after thalVr R"'",' '"'^'"''" ^' ^^^
"- with the otf-set of tt rlt TK " ""' " '"^"^ *«
^''illips of the $20 was abonf . ,,' '^'^^^''^a^on with
*- the respondeJt CltTe ll^^^^^^^ '^^^''^'^^ '-*^-■•
-id at the conversation TwlSf tlT """'"^'- ^^
Hope, the latter said to ;. :„, ^ffTdid nT"' ?u ^"^ ""' ^^
g-e my note he wouhl sue me fl ft hv^''' "^'"^'^"" «^
morning. I refused to give Tt iJn ? T' "" ^«"^^y
'"y place to pay it • if Tc ' / T ^'' ^"'^^ ^* ^*« "«*
put costs on ^<I^re^o!^ZZ^ini^^^)r' ''' ^^
who should pay it I wo„I<l i '''"'^'' «<^e Paxton
^-nHesaiJhVi'ur^^::-^^^^^
«ofc to wait ; he would have iUr ^ I?^' ^"^^^^^^ ^im
He inti„,ated that PaxtcThad h H ""'"'I ^^"' '"^ *« «««^^-
he might want his hel^t U e ^^ ^^f ^.^t elaiu, for
the election had anvthin,, ,''^- ^ «aid to Hope if
they would wait till Pavfnn ot , * • ■ ^ said if
J^in. as he was th n^l "!, "^'' '"'^ ^ ««"W see
-ttle i, and if Paxton'^c^^^V:^^ h' '^"^'^ ''' ^^'
as soon as he liked. That ^^LT ' ^^P"' '""^^ sue
-;^^t I said most diS Lrv t tr^;* "" ^^^* "-t
the election. In the fWna " of ,h f .T '^^"^ *^ ^« ^^^^
Paxton and to].' him XtuLtf"^'''^^''^^'-^
-e to costs in that matlr afdT . f^- ^^°"* P"*""^
settle i to save ,ne from bl^ '^'^ ] "'^'^''^ ^^e would
Paxton of Hope's remark ast^ ^'^^ ^ ^^^ ""^ tell
<-Jeulated to settle ratdh. ^.^ "^'^^^^ ^^^^ ^e
a-^ount. I said it w^' somewh u '' ^' ^'^^^^ '^^
then wrote out theTote anT ^'^ '^'"' ^^^^- ^^xton
■ • • ■ IdidnotCpa°lT'V'^"^^^-Ho^^^
indirectly the note hid anvth .' "f ^^^^^^^d directly or
Cross-examination -Hope din f "^'^ ^'^ ^^^^*^-"
not vote for Paxton unless C iJl T *" "^' ^^ ^^^^^
-ot say more than that Sxton .'f '^'' '^''"^ ' ^' did
the election J did nof tkT Z' "^ '^^ ^^^^ ^^out
take the election into consider-
1875.]
NORTH ONTARIO.
881
ation at al when tlie note was given. I went on purpose
to see Paxton atter the conversation in Walker's; went to
his house. ... I am sure nothing tb n took place
between me and Paxton of the election in connection with
he note. I supported Paxton at election. I was not on
the connnittee at Port Perry. I went in there one ni<.ht
I chd some canvassing. I attended two public meetings
m Reach. I think I was on a Reach committee. I can-
vassed in my own school section. I had a voter's list; one
of the committee came for it and took it. and I never saw
It after He said he thought I was not doing much, and
he would give the book to some one else. Paxton and I
married sisters. He never asked me to do anything for
him. I have asked him what success he had
Mr. Shaw was examined. He mentioned a conversation
between Hope and himself about H.pe's claim on the
same day when Hope and Marsh, in Shaw's presence, had
the conversation. He supports Mr. Marsh's view generally
of what ^v-as said between Hope and Marsh. So far as it
IS modified, It is in the following passages of his cross-
examination :
" I take an interest in all the Reform elections. I did
not want to see Marsh put to costs; my whole anxiety
was not to save Marsh the costs; it was partly to save
Hopes vote. My interest was equally to save the costs
and to save the vote. . . . I think Hope said he would
not vote for Paxton if he did not get the claim settled.
King said now was the time to have it settled, before the
stonT;. Z'^ '\*° ^^''^- ^^S ™'^»^i°«<^d more
« longly than Hope that he should get his pay befor. the
election. . Marsh told me before the polling day
he had got the note from Mr. Paxton, for Hope There
was a committtee at Port Perry for the election. I was
there every night; took any part that was handy; I
all I could: he had known how I worked; everybody in
tion m chief. Marsh said "if Hope would wait till after the
#
882
PROVINCIAL ELECTIONS.
fA.D.
Wm n. pIuI rthe „ III" /°'* "' """ "»' " ™^"
about the $20. t^^P^cify as to the conversation
He bought tho li>r..i i , ""''-'t'Sc at rort Perry,
which pixlita^ 1:^ nZrT''^ 'r '^^^'-
year. Bigelow did not IThT'i ^" T^ ^^' ^'^' «
the place^'and when he dd and T T''''" ^' '^""^'''^
Hope said he had paid $200 otil T'p'' /"' ''^ '■'^"*'
■said that would be aU ri^hf V, I . ^■^*^"- ^'^''^''^v'
the remainder, $^00 of ff^V"'^ '^ *^'^^ ««P«'« "^te for
before this trillhe mad. . ^"""" ''"*• '^^'^ ^^^^^^^^^Y
-^ ^eferred lo, ':; f lit rsfZ 'l ^f '^^^ "^
Hope, and he said he had conclul! to pul th '^""-^^
He continued: "I said T wa .T ^P"* them in suit.
could in the election surr ■,,,." """^ "'° "" •>«
whose acts he reLSl^^^.T^'"''' ™ " '""'^ *»■■
i« also a bmSat ' ': ""Y"" """ '^"*, who
a voters, lis, and be! ^eru teTh^al hS""™? '""
canvassine of or in hi Ik i j- ^ °' """■>■ "'"> 'he '
canvass. '" '"''°°' **'"'■ «"<i 'hat he did
hee'„"t^hisi*t.!^rr ^ °™"^'-^ ^ >»™
comnrittee i°„™'td oT:";, T,! " ""^ ^"" ^^'^
position as a memhpr «f /* /"«™oer or m the same
committee wL'^atwh eh f.^ ^"^ *^*^ '^^
agent, Mr. Card was plslft ^^^P^"^^"^'« recognized
' *' P'"'*^"* "P«° one occasion, and had
1875.]
NORTH ONTARIO.
833
therefore knowledge of. It was presided over by Mr.
Bigelow, the partner in l)u.sine.ss of the respondent, [t
was held in the same place where the respondent resided
and I have no doubt he had personal knowledge also of
the existence of that body. 1 find also that Mr. Sliaw
aided actively in promoting the election, and to the
personal knowledge of the responde- and that he and
Marsh were agents, or sub-agents .*t least, uf the re-
spondent, for whom and f<,r whose ac^s he was and is
responsible.
I am of opinion Hope's main story is quite true and
correct; that is, " that he did tell Marsh he would not vote
for Paxton if he did not get the claim settled." He swears
to It po.s,tively, and Mr. Shaw expressly confirms him.
Marsh denies that such language was used, but he admits
that while Hope was pressing for an immediate settle-
ment Hope did say that Paxton might want his help at
he election. I think he eaid more than that, and that
Marsh heard it, for it was said to himself.
Mr. Shaw also says that Marsh wanted Hopes claim
to he over till after the election, but that both Hope and
King said that "now was the time to have it settled,
before the election."
The meaning of that all parties fullv understood, which
was that the coming on of the election was the press ire
put on by Hope to have his claim settled, and that the
other parties, to get the benefit of Hope's vote, were to re-
move his objection to voting for Paxton before the polling
Shaw says plainly "my interest was equally to save
the costs and to save the vote," and he was also an agent
oi the respondent's, and taking a special part in the
arrangement of that matter. I find that the facts show
the .settlement of that demand at that juncture, and in so
great a hurry, with such special zeal for Hope's interest,
atter it had lain over for more than five years, neglected
or resisted by all parties, Paxton, Marsh and Trounce, who
had been repeatedly .applied to by Hope for payment, was
334
PROVINCIAL ELECTIONS.
fA.D.
_».ougI,^ about by Marsh and Shaw with th. , •
tor the express purpose of securinnh / . '"^" '^"''
his son, for the re. noiulenr„r^,t ''''*'■'' ""^ "«P« ^n.!
k"- eoui,, not beTbiL ':;i:t ot^f ^"" "'"-
substantially a.h..its that tl T \ ' *''™'^' ^'^'i"'
-nt as an answer I al^ ^r:, V^^.^ ^
':::;rUrhLis.f---^^
statement in «o„.e pa tTc "rs , J^^"'^'^^-* -^^ '-s
"f eso by any explanat! Tl pT fr";'; ^^^^^^'''^ ^e
wliat he did, and bv thp f i., , '"^ governed by
tiyet.todiseove;;r;i:'rsr.;^;;::r'^^^^-'^^"^
and circuu.stances'l have no d "u haT'r^f f "^^
purpose of Marsh in getting, that not/f m -^''^ ^"'^
ent at the time it was got'' was for b" ' ''"P°"^'-
curing and securing the v. J of H ^IJ^^"'' '^^ P'"''-
the respondent at tT.e e e tn Ld T?"' ''^ ""^ ^"•■
knew that Hope believed 7^! ' T ^^^' "'' ^'""'^^ he
-nepurpose/and:hat:;V,trs:2\'J
day. that Hope and his sons would fn, :f\*'' P'"'""
the respondent, but not otherwise ''"*' ^^''
p^iih;:tsZ;::;t^L:^i;:^been.^^^^^^^^^
which of them is telHnf he .r''''°" ^'^^ ^^« «20 ;
Hope says he wasrSfngt Iff "T '^ ^ ^"^^^•-
settlement of his deman^a!/.^ r"* '""**'^''' *h^" t^e
the rent, at the tit he ;:L ': t-n-^^"^"^^ ^"" '^^
Phillips is in that respect mote coj't S" '' "^^' ''
the conversation than Hope **'^°""* ^^
--^L.
1875.]
NORTH OXTAHIO.
885
hat he wouKl do all ho coui.l i„ the oloction suit against
Paxton; wh.ch state.nent Hope .lonies. He says it Jas
B.geIow whosaul to him if ho ca.uedown to give evidence
It would he the worse for hiui. viucnco
I do not think the contm.liction hy Phillips of Hope
nor the contradiction by Marsh and Shaw of Hop.- in
the particular referred to, destroy 'lopu. .redil.ility and
veracity as a witness. There arr other o^,..es to vvhich
these contradictions can he assi,Mai (han i. untruthful-
ness of character. Marsh is directly ..Uiad'.. ed hy Hope
and Shaw in an important matter, .: i tiie surrounoiL
tac. conhrm them, yet I do not for a moment imputt
wiltul misstatements to Mr. Marsh. '
Undoubtedly in cases of contradiction I must be more
cautious m accepting as true the statements of a witness
who has been so contradicted, but until I have lost all
taith in him, I must not disbelieve him altogether
I have so dealt with Hope, and in forming the conclu-
sions I have come to in his case, I have sougtt and found
confirmatory evulence in the testimony of Mr Shaw
partly m that of Mr. Marsh himself, and very strongh i'
the accompanying facts and circumstances. There is still
one matter of contradiction to be accounted for, that l>e-
tween Mr. Bigelow and Mr. Hope. Mr. Bigelow says that
Hope .said it his claim was not settled it would be wor.se
for Mr. Paxton-that he, Hope, would do all he couW
against h„„ at the election trial ; while Hope says that it
Z^M I'Z T'" "^' ''''' '' '''• HoP« camJdown to
the trial it would be wor.se for him.
The facts are that on the Satn nky before the trial Hope
and Bigelow had a conversation, and Bigelow made a
demand on Hope for payment of a note fof S116. wWch
IS no doubt a just claim, and also for an arrear of S200
upon a former year's rent, which latter sum Hope di.spute.l
because he said he had before that, and before he had had
any notice of Mr. Bigelow being his landlord, settled with
Paxton, his former landlord. Mr. Bigelow had long before
that time been told that very fact by Hope, and he had
336
PROVINCIAL ELECTIONS.
[A.D.
ac epted it when first told of it as true, and had allowed
It to Hope as good payment by deducting it from that
year s rent, and taking Hopes note for $300, the balance
ot that year s rent.
Hope never heard of this alleged arrear of rent bein..
ckimed until he began to press Paxton for payment ol'
the note for $110, which Marsh got for him just before the
election, and probably he thought the claim for rent waJ
set up to overreach his claim upon the note.
It was upon that Saturday before the trial that Mr
13igelow, the business partner of the respondent, declared
to Hope he had concluded to put the rent (as well as tiie
note for $116 which is not in dispute) in suit, and at that
t me MI^ Bigelow knew that Hope was required to attend
this trial as a witness.
I think it is somewhat suspicious that Mr. Bigelow the
business partner of the respondent, at such a time should
tell (I do not say threaten) Hope, a witness upon the trial
against his partner, that he would sue him for a We
claim of rent which he, Bigelow, had himself settled ftr
in tull with Hope many months before that time, and I
confess, if I am obliged to say whether it was Hope who
l^ireatened Bigelow it would be the worse for Paxton
It his Hope s, claim were not settled, or Bigelow who
threatened Hope it would be worse for Hope if he Hope
came down to give evidence against Paxton, that Vshall
hold there is quite as much, and perhaps more, reason for
beheving that Mr. Bigelow, who was advancing such a
claim at such a time, and with a knowledge of Hope's
position as a witness at that time, was the person who
made the threat as or than that Hope was the one who
^ I can see that Hope might have made it because of the
-..aim, which he believed to be an unjust one, then made
upon him, and as a mode of getting rid of it. There are
views in favor of each of these two parties; but most
.^.suredly it is not for what Mr. Bigelow has said that I
should discredit or disbelieve Mr. Hope.
1875.]
NORTH ONTARIO.
337
The result of my examination of the case is that upon all
the charges above stated, excepting the second and third,
the evidence has not been sufficient to maintain thein.
I find also that the two charges with respect to the
alleged bribery of Edward Cunningham and Joseph May,
which I disposed of on the trial, also failed.
I may say I have no hesitation in finding the second
charge fully proved against the respondent so far as the
act of bribery was committed by Charles Marsh, his agent
but I acquit the respondent of all personal participation
in it or knowledge of it. Whatever knowledge the re-
spondent may have had of the nature of Marsh's act can
rest on suspicion only, which can never, and especially in
so serious a matter as this is, form the ground of an ad-
verse judgment.
And I desire to say also, that while I determine the
third charge against the respondent, I do so with less
confidence than I dispose of the second charge, because
there are not wanting dicta of Judges which are not un-
favorable, to a considerable extent, to the view of the
respondent, that Bruce was a mere volunteer for whom
he, the respondent, is in no way liable ; but that question
in this case is of less consequence from the conclusion I
have arrived on the second charge, that the election must
be vacated; and I hereby determine that Thomas Paxton,
the respondent, the member whose election and return
fire complained of, was not duly elected or returned for
the reasons given upon and with respect to the second
and third charges above set forth, and that the said elec-
tion was and is void.
I shall give the petitioner the general costs of the cause.
I shall direct the petitioner to pay the respondent his
costs of the 4th. 6th, 7th, 8th, and 9th charges, and also
of the charges made with respect to Edward Cunninc^ham
and Joseph May. "
I. shall allow no costs to either party of the 1st and 5th
charges, and I shall direct the respondent to pay to the
petitioner his costs of the 2nd and 3rd charges ; and I
m
338
PROVINCIAL ELECTIONS.
[a.d.
Wharen, an elector of the said RirJilTi .""'»'
Wd. with respect to ik:Z!^'Z tht ChT
Marsh, of the township of Reach, was .umy of a co !
practice during the said election. Ly 7h!lZrl o.'
dehvery to Thon^as Hope, an elecL ofThe 3 Ridi"
• he projnissory note as before mentioned, wth'^^^^^^^
the said second charge. respect to
That no corrupt practice wa.s committed «f ih. ■ ,
e ectxon by or with the knowledge S^.^^ ^l^
of the candidates thereat. ^'^ ^ i either
vaitef af ^. ««rryt practices have not extensively pre-
vailed at the said election, nor at all. so far as T K
reason to believe, except as aforesaid. ^"^'
I shall report also that many of the taverns in the
Riding were open, and in many of the taverns o^ the
Ridmg,sp.r:tuousand fermented liquors were ."ven and
Court of '^ ^^Tt^°"''''' ^'"^ P^^^'«« ^PP^'^led to the
Court of Appeal ; the respondent against the decis^Cn of
^e learned Judge in (1) the Bruce-WharenTnd (
Marsh^Hope cases and the petitioner against the decJol
Mr. Hector Carmron, Q.C.. for petitioner.
Mr. Hodgins, Q.C., for respondent.
The judgment of the Court was delivered by
1875.]
NORTH ONTARIO.
339
Burton, J.— This case comes up by way of ann^a] nn-l
-s appeal from the judgment of m" jl^ce Wi L 1
On the appeal two questions are raised •
1st. Whether the respondent, through Donald Bruce
his agent, exercised undue influence on one George Whlren
a voter; and " "aien,
2nd. Whether he was guilty of bribing one Thomas Hone
tlirough Charles Marsh, an agent ^
The respondent contends that in neither case was agency
established, and that, assuming the agency to be eCb
hshed, he act complained of in the flrst'of the tlo cha t
1^8? ;l " ?' ''"' ^^^^^«" '' *'- Election La^o
1.^68, and the act complained of under the second lead
was not bribery. ^>-"'iu jieaa
The learned Judge with some hesitation held the agency
Donald Bruce to be established; but I have not tZZ
|t necessary to consider that question, inasmuch as I " e
been unable to convince myself that what is stated to Zl
occurred is a corrupt practice within the 72nd section
The evidence tends to show that Wharen was in arrears
t^ the Crown for a lot of land, and it is contended tha
Bruce endeavored either to intimidate him ortoYnfluence
IS vote by pei-suading him that the Government wo'ld
ook sharp y after those so circumstanced who did not vote
tor supporters of the Government
No doubt it is the intention of the law that voters
tliat they should use their own iudo-ments an.l ,h !
-Huenee should be brought toie:;^^^^^^;:;;^
would have the efiect of interferin-- with tlvis fvl
of iudo-ment- „n,l u- : • * ^^' ^^''^ iree exercise
■I e ■ 1 — •■xi...iieoug witn t US free pvhiy
H or aebtors to the Crnwn fn,. n„«. — i... i ^ "
of lphtnr« w.\7 n .'^""^"'^uency composed laimly
340
PROVINCIAL ELECTIONS.
[a.d.
earned on contrary to what the principle of the law is
Jiut It IS not shown in this case that any such general
pract.ee prevailed; and the question hefe is wheth '
assuming the agency to be establislied, the act was one ot'
-ndue influence, ,n its proper statutory sense, of using any
violence, or of threatening any damage, or of resorting to
any fraudulent contrivance, to restrain the liberty of a
voter and so either to compel or frighten him into votin!
or abstaining from voting otherwise than in accordanc:
with his own free will and judgment
The Act applies not only to cases when the iniury
infl.cted or threatened is wrongful or violent, but to easel
where although the party has a perfect legal right to do
the actyf not done with a view to affecting the vote) tl
doing It does inflict harm upon the other side; stil
apprehend it must be a threat of something which the
party or the person he represents would presumably have
the power to carry out. If, for instance, the CommiLoner
of Crou^ Lands had been the candidate, and his agents
had made a representation of the kind ascribed to Bruc
or If such threat had been made by a local a^ent of the
assume that such a threat might be acted on
fZT-T"7''\ ^? '^'' '''' "^-^ "* most a mere hrutum
fore n" ^?"""P"^ r '^' ^="-^ ^^^ -ny -eans of en-
toicing. It appears that as a matter of fact Wharen was
not intimidated although that might not be material if
wfttn'fh 7!/'^''"'''""''^""'^'^""*^^ ^'^ -threat
TlZn\ ' '"' '^' "^^^^' ^' '' ^^-"« *« ™e, were
at most but an expression of opinion upon a subject on
which every one was competent to form his own iuimient-
Speaking for myself only, I am of opinion th. v.is not
an act of intimidation or undue influence w.'thin +r;. 72nd
section. But It is unnecessary to decide the ^.uestion, as
we are all agi^ed that the other charge is fuLy sustained.
It was contended that as there was an actual legal debt,
Marsh was merely carrying out what he was bounS by law
to do. and that his motive could not be inquired into
1875.]
of the law is.
Y such general
■e is whether,
act was one of
e, of using any
3f resorting to
! liberty of a
m into votinc
in accordance
'n the injurj-
i, but to cases
al right to do
the vote), the
side ; still I
ig which the
uinably have
^omaiissioner
d his agents
bed to Bruce,
agent of the
unreasonably
mere brutiim
.s one which
tneans of en-
Wharen was
! material it'
to a threat
i to me, were
I subject on
R mr'gment-
was not
lin +r;3 72n(l
question, as
y sustained.
I legal debt,
)und by law
ed into.
NORTH ONTARIO.
341
I am not aware that there has been any expre.ss de-
cision upon the point, but I should say that it I always
open to inquire, under statutes of this nature, whethe
the debt was .simply paid in accordance with the IZ
obligation to pay it, or whether it was in fact paid or
zrx ''''"''''''''''''- '-'^''--'^^^
In^c.^.. V Slade (6 H. L. C. 746), on the argument in
he House of Lords. Lord Brougham put this caJe : " Su^"
pose a debtor to say to his creditor. 'If you will vr: for
the sta ute Lord Wensleydale adding: "It bein<. a
g..at advantage to have the debt paid without the ti'uWe
to bring an action tu recover it." "'"uuie
If it be open to inquire into the motive, as I think it
IS, It IS impo.ssible to say that the learned Judge was no
fullyjustified in holding that the motive whichlnfluTnced
Marsh was that of procuring Hope to vote at the election
Then, was there a gift of any money or valuable con
sideratxon m order to induce him so to vote ?
The voter had for upwards of fiv. , ears been endeavor-
ing to procure payment of this debt without success.
The learned Judge has come to the conclusion that he
did receive va uable consideration, in the shape of Mr
Paxton s promissory note, in place of a claim which his
ngma debtors insisted should be paid by Mr pfxton
butwhich he disclaimed all liability^W, aL whi^h had
remained in that unsettled pc^^'tion for nearly six 1^^^^
We cannot say that the learned Judge was wronf n
coining to the conclusion that this not^e would not W
been given unless with the view of inducing Hope lo
r::ir?'f *'^ r ^-^^ °^ agencylasTi:;!
towarian. the conclusion of the learned Jud-^e his de-
cision should be affirmed and this appeal dismissed
learned JuT '^^ '' '' "'^'^ ''''' '^' ^««i-«'^ «f the
learned Judge was erroneous in holding that the resnond
ent w no, proved ,o have been guiltj of bribL^TnTht
Leppard case, in holding that the bribery of Thomas
342
PROVINCIAL ELECTIONS.
[a.d.
Hope by the respondent himself w^i. not proved, and th*u
the treating by the respondents asrent, Ja- >3 P Foley
at a meeting o).' electors awoinbled for th- purpose of pro '
motmg the elect: ,,. of the r,.sp.>adent, had not been proved.
As to the first of these charges, Mie learaod Judcrg re
pprts the evidence of Leppar I as unsati.fact,)ry and uii-
rehabl.., repugnant ui itself and directh contr t-Ucteo ii
some H'^^pects, and he declined to convict the rt-o^ondent
and subject him to such highly pe.,al consequ^ices as
woufd toilowati adverse decision upon such evidence We
.-.ee no ground whatever for differing from that view.
■Jjon th., second point, the only evidence to show
r.txton's connection with the transaction ;,s that of Marsh
vviio, after referring to the conversation Nv.th Hope says'
" In the forepart of the following weekl ...wMr. Paxton'
«nd told him what Hope had said about j utting me to'
costs, and I said I wished he would settle it, to save me
being sued. I did not tell hini of Hopes remark as to
votmg; Paxton said he calculated to settle it, and would
It lie knew the amount.- I said it was about §110, and he
then gave the note."
I am very far from saying that the case is not one of
grave suspicion; but there is no reason, that I am aware
oi, why the general maxim should not apply, that in penal
statutes questions of doubt are to be construed favorably
to the accused; and although it may be said that the partV
charged here had an opporfcuaifcy of purging himself b^
his own oath, it he chose to take the ground that tl,;
charge was not proved, and that he was not called upon
to disprove it, it was competent f ,)r him to do .so, sub-
jecting lum,selt to the risk of having his omission to do .so
commented upon by the opposing couasel. T'o doubt, the
iao,st was made of that omission, and the i ■ d Judoe
■sitting also as a jury, has come to the conci . on that the'
evndene.^ ^as not sufficient to satisfy or. -.. .t the charge
Mn vn? TV" *''' ^'^^P""^!'^"^- ' ^ i h. has acquitted
l"m 01 all knowledge of or participation .:. ^t. It would be
1875.]
NORTH WENTWORTH.
> roved, and that
Ja i: 03 P. Foley,
purpose of pro-
lofc been proved,
iraod Judge iv-
aeti^y and uii-
cont]' idietti'-) i.i
the respondent
onsequences a.s
1 evidence. We
that view.
lence to show
that of Mansh,
th Hope, saj's .-
i\vMr. Paxton,
I utting nie to
it, to save me
remark as to
it, and would
t §110, and he
is not one of
it 1 am aware
that in penal
ued favorably
that the party
ig himself ijy
und that the
)t called upon
'O do so, sub-
ision to do so
^o doubt, the
' d Judge,
^ on that the
t the charge
i I as acquitted
It would be
84:^
too much in a quasi criminal case to ask us, under these
circumstances, to reverse his finding.
It is not necessary to offer any opinion upon the Foley
case, as the charge if established merely goes to avoid the
election, but we may say that the evidence does not satisfy
us that he was an agent at the time of the alleged treating.
(9 Journal Legis. Asseni., 1875-6, p. 14.)
NOKTH WENTWORTH.
Before Chief Justice Draper.
H.\MILT0V, 19th and mh May, lS7o.
Before the Court of Appeal.
Toronto, 16th ami ^oth Spptpmhor, 1S75.
Robert Christie, Petitioner, v. Thomas Stock, Respondent.
CommUtees-Aiiencu-TmUin,, on pollin,, day-Corrupt practice tvith Re
■^pondmt's knowMuc and consmt-3^ Vic. rap "l scc1>f mvZ
cap. 3, sees. 1 and 3. >■ "t., cap. ^i, gee. 66 ; J6 Fic,
Ui
PROVINCIAL ELECTIONS.
[a.d.
Per Burton and PrUtfrmn JJ A Thoo., i u
applies e,,ually to tCellied iiT.rl/lr^"'"''',''/ '' ^ "^ '''« ^ic, c. l'
and. if foind asaenC partie,^^ ' ^ au election
The facts of the case on which the election was avoided
?oTlo" n ?/^^•'"^'-"-*. -^1 -ere substantLZ 1
fol ows: On the polling day, and between 2 and 8 JL2
n the atternoon the respondent drove up to Davidtnt
Su hvan, who had been an active member of the or-C
candidate The respondent, addressing Sullivan or the
assembed people, said, "Boys, this is th^first time I ca^n
Carhsle when I dare not treat, and some one will .a
to trea me." Sullivan said he would treat, and w luh
respondent and a number of people went into the tavert
and while there Sullivan treated some of the people the'
respondent drank with the rest. ^ '
anflnt ofTh' ^"' ^'*^^^'"''' ^'^"''"'^^^ '^^' «"!"--" was
an agent of the respondent, and that his treati.,. on poll
mg day was a corrupt practice; and the responue^t beit
party to the infringement of the law Under the present
aw If a candidate is a consenting party to a brLch o
the law. agency need not be proved
Mr. Thos Rohertson, Q.G, for respondent, contended that
ndStTlr ' 'fr*'r= but partake 'of refreshttt
and that act is not brought within the definition of a cor
gent'oTtt ^'"!l ^'' "^ P^^^^ ^' «^"--'' blV n
agent of the respondent ; in fact, he was not an aeenf,
nor was he a member of the Conservative Associa«on bv
claret :r"'rr 'r^^^^"^= -- -^^^^^'^y
Charge in the particulars of Sullivan's beinc guiltv of a
breach of sec. QQ of the Election Law of 1868. ^
mentTfle'^'r ^~'V'^. "*^^^^^ ^^^^^ "^ adjourn-
ment of the Court yesterday evening and the meeting
^MtMu
1875.]
NORTH WENTWORTH.
34i
this morning, I carefully read and considered the whole
evidence^ The result at which I arrived in regard to the
acts of the respondent and others on the polling day, and
during the hours appointed for taking the polls at David-
son s hotel m the village of Carlisle, rendered it unneces-
sary, m my opinion, to determine any other of the charges
advanced for the purpose of avoiding the election. Mv
findmg and my report to the Speaker will be limited to
that one matter.
It will be convenient to begin by referring to the
statutory provisions on which the charge of corrupt prac-
tices IS founded. They are contained in the Ontario
Statutes, 32 Vic, cap. 21. sec. 66 ; 36 Vic, cap. 2, sees. 1
and 3, sub-sees. 1 and 2.
1st. "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 or 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 munici-
pality during the said period, under a penalty of 8100 in
every such case"
2nd "'Corrupt practices' or 'corrupt practice' shall
mean bribery, treating and undue influence, or any of such
oifences as are defined by this or any Act of the Leo-is-
iature, or recognized by the common law of the Parliament
ot l!.ngland; also any violation of the 46th, 61st and 71st
seca of the Election Law of 1868, and any violation of the
fcbth section of such last mentioned Act during the hours
appointed for polling."
3rd. "When it is fouiid,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 a^ent
whether with or withoMt, the actual knowledge and°con-
aent of such candidate ..e election of such candidate, if
he has been elected, eaall be void ;" and further, when it
hBs in like manner been found " that any corrupt practice
has been committed by or with the actual knowledge or
S4«
PROVINCIAL ELECTIOXs.
fA.n.
Us
consent of any candidate at an ,.l..„f • ,
'loction, if he has been Ic J, ""' '" "'^•''""" *« I'i
tHe eight ,ea,.s ne^^:^ ^ 'i^jf ^- '^"' ^'"^''"^
guilty, l>e incapable of b.; p! .'^''^ '^^'"fe' '^'^ *"oun'l
Tt will be seen. th,.otorP that th.fi !' •
stotc.l prohibits crtain thinl! . T' *''"''''""" '^'^"^•'''
who act contrary to prorbitT T'^"'^ '''^' ^^^"•^'-
in every such Le 117^ ^ "^ ' '"'''^ '' '^^'^^^
makes things prohibited con ;nLr"= "^'1' *'"^^'^'
in its Hrst branch avoid, fh f^' '^°^''=«'* J »"'! the thir,l,
ffuiitv of such ti^p ' !r rr* " '^"^^''••'^^^ f-'-i
The question ' I tvl to 7 '."^'^"'^"«^«ti""-
«pondont is guiltt o Ihe fu "'"7""" '•^' ^h'^*'^-' the re-
and disqualiSed. or Lt • '^X ^^^^^^^^^^^^^ ^ *« ^- '."soated
question is to be dispose | of on .h ^? »"««ated, and this
trial. ^ '''' ""^ ^" th-^ «v'^'ence taken .u oh.
David,son-s hotel 2 :o kepTlf ' /" 'l'*^' P-^-»'a,.s.
Pou^ted for polling, .Jl^^^Z^^^^-^ ^^e day ap-
and guen in that hotel within fK • • ' ^'''"' "'^''
Davidson's evidence proves hi r ""' "*' ^^'^^'^^^'
for there was no acc^s o .1. ^"''■•"'*, *^'*°^''*^- «P-^>
street i the ^^ roln i .^ *%^^"* ^''^^^^y f-.n the
into the caning-roim wa, "I T ";"' ''"" '""^ '^^'-^
-d beer were^sse'!; To^Xtt oT^f r "'^"""^
Th-i itwP. p, ,ved bySul'-.-an ,, ;"^''/'^" '^^"'"g-'-^on..
hotel, he saw respondent dri". up that""^ '"'''^^^ ^'"'^
dressing Sullivan or the peon. ^' "^^^^'^P^'^'^'^nt, ad-
to this effect: "Bov tK .r'« "'' ''^^'^ ^^'"^•^'•'"^'
Carlisle when I dare^^^' L" ,t? '"^ *'-« ' ^aau. t.!
treat me ;" ad Sulliv "''"'' """^ ^' ■' ^ave to
respondent, went into t T ". T"^'^ *''**' '*"d, wit
i^-s.va.ous;'::^:;:ti:rr^^^;7v
of thern drank, the resnondpn//, ''^' ^^^''"a'
Surely no one can do'ubt It "° !• ^■''^" ^*' ^^^^••
breach of sec. 66 and unl ! . *'*' constituted a
' ^''^ "'^^^^ "^^ subsequent Act of the
1875.]
NORTH WENTAVORTH.
847
Louislature sucli breacli was a corrupt practice. The re-
spondent's attention ha.l cvitlontly been attracts pre-
viously to the law, which occasioned him to say ho d,md
not treat, and this makes it the more remarkable that he
.should have .so entirely overlooked or forgt)tten the pro-
hibitory enactment as to having certain houses closed,
and as to the sale and <:\h of liquors, etc. In reality, he'
acted like one who did not know that the law required
that the house should be kept closis and that liquons
should not bo sold by the tavern-keeper or given away
\>y .-inllivan or any other purchaser wliile the pollini; was
in progress. I am compelled to attribute knowledge of
the law to him ; nor can I avoid the conclusion that he
was a participant in its breach. He went into that hou,se
n order to accept a treat which his own remark shows he
did not imagine would be limited to himself, and which
wt- it so iiiiiited.
The whole evi ience may bo thus summarized. About
a dozen r the electors of North Wentworth met together
some lime before the election for North Wentworth, to
consult as t< -ir eourse, they all being of similar
political view.s. By them and others the respondent
was nominated, and ultimately accepted the nomination.
James Sullivan was one of theii- body. There was but
slight evidence given of their proceedings until the poll-
ing day It appeared that they were not personallv
summoned to meet— did not keep minutes of their pro-
ceedings, appointed no chairman- but as they met one
another, they agreed to meet and adjourn their meetin-'s
from time to time; and it was argued, on these and sind-
lar ground.s, that they did not constitute a committee—
but there is no magic in that word. These parties united
together for the common purpose of procuring respond-
ent s election; they had some organization; they canv;. sed
electors, procured voters' lists, and got reports on which
they estimated their chances of succe.-.. Th.y are the
parties, so far as appears, whose nomination the respond-
ent accepted and acted upon ; and if they did not style
rl''t;t
848
PROVIVCrAL ELECTIONS.
[A,I,.
themm.lve, a committeo or conimitl... ,.
have a,Hi„„n,l U,„ f„„„.i„„. """""""O". '''"y wc.,n.,| („
Ketic ,„„,„h„,, ti", ! : :.;r"' "" !"™ '*"■ "" «■-■
sive, »pi,.ie.™, „„„,„.:::, ;: ; xtr^rr™-
who were asaeinble.l on th. ^ )v , "" '^lectors
frien,!,, the ,.,p™:,l:\ y; •■« 'l2>:.';;«».'''>"'l»"t-
«8nt a„,l u„,l™i,|,|„ icno^i^P"""""' »■'"' I"' »'l™t co„.
help H,e ™p„„,,„:,,, :rr',ri t ' r"""'^'' '»
Porte,..,, a„,J U wa, concurj ,^ '™ f ,"," ''"7" ™l-
«" r n,„ willing i„ ly . ' " '/ *» ,-«,,,o„,le„t. ,,,,1,
of tl,u law. ' '°'««""ln«« at tho „„„„„„
beer «ive„ b, .S„,ta?w \: ™| . ?r^:^' V'''--'-
he was one of those who ,no.- . ^^"^^'^^on. But
which the law directed InnuZ ^"''"' '"*^° ^^'^ house
jn accepting beer ^ a t t in otht ^'"^' ^ '^ •'^^"^''
"1 a literal as well as .uLT ^ ? '^'''''^'' *« « gi^t-
^^ ith a knowledge of tie IT I"^ ^'''""°" «^ ^'^^ l^--
not as if the nut tin , T'^ ''''"^^"»" ^h^''^*"- ^^ i
when he wa proTe uLd^ ' '"'^*^'^" «*" '^^^ 6'^.
nor given. Until tLT . ' ^^''"^^ "«'*her ,soM
practice the ele ion w« \ ""' ^''^'''^ ^ «--Pt
declaration, th eCt 7t, ^^r'^'' '"' ^^'^^ ^^at
The concur ence in the -m '^ '''*'"" ^' ^"^^^nded.
-akes the 1:1 a^tf J^^^^^^^ ^^ /^e prohibited acts
consequence. ^^^Ponsible tor the newly imposed
I must report to the Speaker accordingly.
Cou^f l^pi:;^'"^'^* ^'^^ -P-dent appealed to the
1875.]
NORTH WENTWOHTH.
349
M;. J. mil,,ard Cnmcrm, Q. C, }[,'. R. A. Haniaan,
Q.C., aiul Mr. Thus. Robertson, Q.C., for appellant.
Mr. hethune for petitioner.
Haoarty, C. J.-The facts, a.s detailed by testimony
fnen.lly to the appellant, are very clear. Davidson's
tavern was or)un for the sale of liquor durin- pollin.r
hours, although the fonn of dosing the har was observed"
This was in direct violation of the ^.tatute. Several
persons are assembled there. The appellant drives up,
declares that he cannot an.l will not treat, and that some
one must treat him. His supporter, Sullivan, accordingly
.loes so; appellant takes a glass of beer, and two or three
others join in Sullivan's treat.
It is forcibly argued for the appellant that these facts
do not show a corrupt practice committed "by or with
the actual knowledge and consent of the candidate."
First, it is urged that the violation of 32 Vic, cap. 21,
HOC. 06, can only mean an incurring of the penalty of
mo thereunder, and that the appellant cannot come
within Its provision,s-(l) in the strictest construction
of It, that it only applies to the innkeeper; and (2) on
the wider construction, that he was not either the .seller
or the giver of the liquor. Again, that sec. 3 of the
Ontario Act of 1873 is divided into two sub-.sections
which must be read together, and that th..' corrupt
practice brought home to the candidate's knowledge and
consent, in sub-sec. 2, must be read as only the corrupt
practice mentioned in the preceding sub-sec. 1, " com-
mitted by any candidate at an election or by his agent ;"
that the facts before us may show a con upt practice in
the innkeeper, but that the latter was not the appellant's
agent, or that even if a corrupt practice in Sullivan in
giving the liquor, the latter was not appellant's agent.
It is pointed out that section 46 of the Act of 1871
for which the existing enactment has been substituted,
provides that when any corrupt practice has been com-
mitted by or with the knowledge and consent of any
350
PROVINCIAL ELECTIONS.
[a.d.
can.Iidate his election, if elected, shall be void and h
40th ":«! ^ '"^ ^"'-^^^"""■^ -^«*^^"*^d for this
thJl'T' «;»«fc™ction of the existing clauses ur^ed hv
the appelant seenus to have commended itself loth^
vell-consKlered Judgment of my brother GwyLe in
very recent case(ZzV../. easc,post; s.c, 12 Ca^L J m
I feel very great difficulty in brincdn. mv n iml tn H
same conclusion. ° ° ^ ^ ^^ *'^*''
We have not much authority to guide us. It seems t.
.ne that wo n.ust simply try to satiSy ourselves as to tl
TaT" '' T ''''-'' "^^^^ '^y ^he Legislature We ,
to ask ourselves what was considered the wrono to L
J: me ofT ''.''^ ^"^ "^ ^^^ not'neceLrily to
table of anypelnVoLn" l I"" "' ''^'^ P"^'^^^
narv ^.uest miTfT ^ ^""keeper) at which an ordi-
nai> ,uest migh be present and partake of such drinl-
as the common bevera<re used hvth. f -i .r.
and the Dresence of fh "', ^7 *'''' family-fche meal
with anv election ^ '^ '''^"' ^"^'^^^^ unconnected
pa d ^0 xn """'"'""-^ '^'••'^°^- 1 ^™ auite pro-
lyl. e^;;^!; :j:!:r ^'^ ^^^^^ ^^^^^ ^^^^^^
^i^ on the polling d;:::^:rr:.rr;::;^^
oe easy to bring such conduct within the grasp of the law
ai'n7;;;:v^'^"^' ''' p^^^^" -^^^^ '^^^^
an agent, or perhaps even as an avowed supporter of anv
s Jtute 1!"" r''^'^ '^^' '^'' ^^^"«« 'appears in a
statute that makes no provision against treating, except
1875.]
NORTH WENTWORTH,
351
in the one case as to meetings called to promote the
election.
We must always, in my judgment, try to construe a
statute in the light of common sense, and always cive
full credit to the Legislature to have used wonls (not
being words of art or of technical significance) in their
oixlinary meaning, as they would be naturally understood
liy those whose conduct they are intended to regulate.
There is a celebrated passage as to the construction of
statutes in Plowden, 204: "The judges of the law in
all times past have so far pursued the intent of the
makers of statutes that they have expounded Acts which
were general in words to be but particular where the
intent was particulai-. . . . The sages of the law
heretofore have construed statutes quite contrary to the
letter in some appearance, and those statutes which com-
prehend all things in the letter, they have expounded to
extend but to some things; and those which generallv
prohibit all people from doing such an act, they have
interpreted to permit some people to do it; and those
which include every person in the letter they have
adjudged to reach to some persons only ; which exposi-
tions have always been founrled upon the intent of the
Legislature, which they have collected sometimes by con-
sidering the cause and necessity of making the Act, some-
times by comparing one part of tlie Act with another, and
sometimes by foreign circumstances. So that they have
ever been guided by the intent of the Legislature, which
they have always taken according to the necessity of the
matter, and according to that which is consonant to reason
and good discretion."
Sir George Turner, L. J., cites this passage in Hawkins
V. GriJhercolc ((J De Gex, M. & G. 21), saying, "I liave
selected these passages as containing the liest summary
with which I am acquainted of the law upon this sub-
i'-'^t We have to consider not merely the
words of the Act, but the intent of the Legislafire'to be
collected from the cause and necessity of the Act l)ein' •
352
PROVINCIAL ELECTIONS.
ZtnlZLTr^'''' '' ''' ^^^^^^» P-*'^' -d fro!
priety of reading the Ic '' wiU «' ^' ^^"^^' '* *^' P^'^'
to the naturP of /h Z ^ '^"^ '^^^^^'^ «* attention
the trorou/i :itS:? ^^^^^^ ^^-^'-^^^^ 'y ^^' *°
Act was passed to tl,-''- ^""^P™'^^'^^^ ^h«n tlu^
statutes hav by apn ov ',"""'• ^«"«^^-<^*'- that other
universal ectwcl T""' ^'^'^^^^-d' ^^d to the
tionof la^srriSLr"'^ 'y ^"-^ *h^ -terpreta-
^' "'^^"le the Lord Justices n 1858
In 1» recent «„.« ^,,,, „„„ („^,^, j^. «■
^- J- ^40, the learned Chancellor haU +i, 1 .u
ing by Alfred Wigle, whom h w V f " ^''''^'
the respondent, of\ treat givJn by J lo " T'- '''
'S'oiiitA JS-ssej,; c«.se were rUrh^Ur i • i i / ^ " ^""^
e,ua J .'"^i *4eT l^^f'^S 'he feat, it „,„,t be
has pointedly declared to h. „ f -Legislature
iinpossib e to say he i- nnf « „^ !• thereat, it is
practice. ^ ^ consenting party to a corrupt,
V.^^..,. :•,,,,;,
parts, and from
5, SO far as thfy
)on the subject.''
eaks of the pro-
free of attention
braced by it, to
(lence when tlie
tion that other
ved, and to the
the interpreta-
■• Bolierty (2 Do
L858.
';s.c., 11 Can.
at the partak-
be an agent of
Queen durino-
I corrupt act
election.
a treat under
gent. If the
lich I express
'le to uphold
!ation of the
to avoid the
it must be
addition of
t case i-aises
t before the
lows a direct
Legislature
iice— that if
^ his tavern
md the can-
"hereat, it i.s
to a corrupt.
1875.]
NORTH WENTWORTH.
353
A case was suggested in the argument. We will suppose
Davidson closing his tavern according to law, and refus-
ing to give or sell drink to any one. The candidate
appears and tells him not to act foolishly, but that it
would be better to let people have drink who might
desire it. Thereupon the tavern is opened and the can-
didate accepts a treat from a friend. It was suggested
that in such a case the candidate would be responsible,
because he would thereby make the tavern-keeper his
agent. I do not see that any question of agency would
arise. The tavern-keeper acts on the suggestion or the
reasoning of the candidate, but he does not thereby be-
come his agent in any sense intelligible to me. If the
candidate had iu like manner suggested to all the other
innkeepers in the constituency to do the same thing, I
still do not think he would thereby make them his agents,
but it would be most difficult not to hold that therefore
the corrupt practice, which is undoubtedly committed by
them, would not be so committed with his knowledge and
consent.
In short, the only escape that I can see for the appellant
from the stringent provisions of the Act, must be our
adoption of the argument that the corrupt practice com-
mitted with his knowledge and consent can only mean a
corrupt practice actually connnitted by himself or by his
agent.
I do not see what I'ght we have thus to narrow the
very clear words of sub-sec. 2. I do not consider that we
in any way infringe on the rule as to the strict construc-
tion of statutes creating penalties and disqualifications.
If we adopt the appellant's construction, I very nmchfear
that we should be defeating the clear intent of the Legis-
lature, as evidenced by the plain language used.
The sale of the liquors at the tavern during polling
hours is declared to be a corrupt practice. The tavern
keeper — the offender against the law — is not shown to
be the candidate's fgent. The latter is shown to have
known of the law being broken, but nothing is proved
854
PROVINCIAL ELECTIONS.
[a.d.
to indicate his approval or consent thereto. But tho
nioment we fin.I him drinkin- at the offending tavern-
perfectly well aware that it ought to have been closed
instead ot being open-then it is beyond my compre-
hension how I can place such a construction on the words
as to hoi. that the corrupt practice was not committed
with his kiwwledge and full privity and consent
_ It was urged on us that the Legislature could not have
.ntended to inflict such a penalty as eight years' disquali-
fication tor Parliamentary honors or municipal offices or
offices in the gift of the Crown, for this slight breach' of
the aw. We have considered the case in this aspect with
most painful attention.
When a severe punishment is made equally applicable to
a case like the present-the acceptance of a glass of beer
from a friend at a house illegally kept open-as to a case
of the most flagitious and unprincipled bribery, the ar^^u-
nient can never be unexpected tliat the Legislature could
not have so intended the law to be. It is a cardinal prin-
ciple in every good law that it should commend itself to the
approval of all well-disposed citizens. It is quite possil,le
that at the passing of this enactment-honestly desio-ned
to remedy great evils-the applicability of its severest
pena lies to a case like the present niav not have been
directly anticipated.
I agree in the conclusion of the learned Chief Justice
tha the appellant acted at least in forgetfulness of the law'
It IS tor the Legislature to deal with these cases W.'
can only strive to interpret their meaning by the ordinarv
lilies ot construction.
,, '^™^'';''/- ^^"'^""•ecl with the judgment delivered bv
tiie Chief justice of the Common Pleas.
nf wl -Tiyr^'^f^? '^^^'"'^ ^^•'^^^^^g ^^'^ conclusion
at whicli the learned Chief Justice and my brother Stron.-
have arrived. One not unnaturally f.els a repugnance to
give a decision, the result of which is to inflict, for so
slight an infraction of the law, so harsh a penalty upon
1875.]
NORTH WENTWORTH.
355
.a candidate, who, upon the evidence, appears to have been
anxious to conduct the election fairly and in accordance
with law. The Legislature probably never contemplated
the occurrence of such a case as the present, and it is not
unreasonable to assume that, had their attention been
drawn to it, they would not have visited such an infrac-
tion of the provisions of the statute with the same
penalties as are aimed at the more grave and .lisreputable
offences oi bribery, intimidation, and corrupt practices of
that nature. We have^ however, to interpret, not to make
the lavvs ; and with every anxiety to relieve the appellant
trom the penal consequences which the decision of the
earned Chief Justice of this Court has exposed him to
1 can come to no other conclusion than tliat that decision
IS a correct one.
.. Tl™^'^,'''''""''' *"'''■ *''' P^'P*'^'*^ «f ^^^ Vresent decision
that the only person who is liable to the pecuniary penalty
affixed to an infraction of the 66th section is the hotel
tavern or shop-keeper who, in violation of that section'
sells or gives to any person spirituous or fermented liquors'
or drinks within the limits of the municipality durino- the
day appointed for polling Previously to the Act of 1873
that was the only penalty provided ; but that Act in
addition makes any violation of it during the hours
appointed for polling a " corrupt practice "
Assuming still that the only person who can be said to
be acting in violation of the 66th section is the hotel or
shop-keeper, and that he alone is guiltv of the corrupt
practice, by selling or giving liquor during pollino- hours
1 do not see how it is possible to avoid th. conclusion
that this act, which is, without reference to the intent or
motive, declared to be a crii.pf ant, having been coin-
.nitted with the actual l-oo^iedge and consent of the
appellant, not only avoid.^ th- election, but in adrlition
sul^iects him to the ^emJiy of disqualification for the
period named in the statute.
It was very ingeniou,sly argued that the 1st and ^nd
•sub-sechons of section S must be read togethev ; that the
3.56
PROVINCIAL ELECTIONS.
|ii:
. i
[a.d
election is done bv nv wUK fi i 7 / avouis tlic
the candidate \!;^r;*;t„trtt ""',""■""'■''
senious than soumi ° ' ° '"' """''■ "'°« ''"-
tl« l,t ,ub..secti„„ avoids 5,f' tilf ir„ "'' ''' '"
pmctico, either by the ...ii^Z'tV'':^' ^^^^
And then the 2nd sub-section declares fh«f ,-f
practice-not ... eon-upt practice as^^^^^^^^^^
•section M^ould avoid the election b„f a» * ""'•"
has be6n connnitted bv ' f ^^ , ?? '"'™P* P^'^^*'^*^-
ledge and «: J^t^- 1^;^ ^'^ ^'^ ^'^ '""^^'-
the avoiding of the el ct oT( h W^ f '"*'- *"
shall l)e subject to H.« i 1 1. "^^ elected), ]„.
sub-section.' 'l-l"ah«-tion mentioned in that
candidate"werei^:^^;::^--;^^-<^'^^
agent " afte,- '• or," so as to > « 7 «' ' ''^^'''' " ^'^
has been connnitted by 'the candidnr' '7-'"P* P'"''^^^^
the knowledge and consent oM ,•"; ^"'^ ^-*^'^* ^^'^*'^
•should .ve C called 2^0^^ '^"'''^'^f^^- " ^^"* -'^v
the plain language of L:::^^^,!^^;^;^;^-^^
iihcation. There is mnnK i ^ """ ^'^^ <hsqua-
*cia,.i„g thatTt:.rti::'',,x:" 'i- "f^^'^'
»nd»h„l, he ..hjeet t,,, a penal^l'lV',':- '"'""'■
t ctiLj ror not doing so, and
1875.]
NORTH WENTWORTH.
357
andidatehimelfur
iiposes, in addition
it sub-section, dis-
lich so avoids thr
Ige and cons(3nt (jf
»y mind, more in-
1871, any dbmipt
r witli Jiis kiiow-
tl flisquHliHe.s the
made with retVr-
it the candidate's
3, as r read it, in
for any corrupt
' r<gmt, whetliei'
1 or without his
iatii'rt7i2/cf)rrupt
der the 1st mil,-
rrupt practice—
with the know-
'. in addition to
**n elected), Jr.
ntioned in that
' appellant, we
the words " the
the words " his
>r™pt practice
liJs agent with
ta" But why
Ij liberty with
^m the disqua-
lie Legislatii
'lis l)ar closed
iloing so, and
that a candidate who encourages him to break the law
shall thereby avoid his election.
There are many other corrupt practices, besides the
violation of the 06th section, which would not, unless
committed by an agent, avoid the election ; and yet it is
umnifest that if they were done with the knowledge and
consent of the candidate, they would— and rightly so-
have that effect, and would also have the effect of dis-
(jiialifying him.
Besides, the 2nd sub-section is not confined to the (t^n^^x-
date ?.<;/to/M-s«6eMe/avVr/, but applies equally to the defeated
candidate, who, if found to have been an assenting party
to this or any practice tleclared by the statute to be
corrupt, is rendered ineligible to be elected, and to the
other disqualifications mentioned in the statute.
The corrupt practice in this case was admittedly com-
mitted by Davidson, and was so committed with the
actual knowledge and consent of Mr. Stock ; and unless we
are to import words into the 2nd sub-section which will
entirely alter its plain and natural meaning, it is impos-
sible, in my opinion, to hold that tne decision of the
learned Chief Justice is erroneous. For my part, I think
no other rational conclusion could be arrived at, and that
the appeal should be dismissed.
Patterson, J.— The facts which, in my Judgment, are
material to the decision of this case, are not disputed.
There is no doubt that David.son, a tavern-keeper at
Carlisle, violated sec. 6fi of the Act of IStiS, S2 Vic, cap.
21, by selling and giving spirituous and fermented liquors
and drinks to persons in his tavern on the polling day.
There is no doubt that this was a corrupt practice in
Davidson, under the Act of 1«73, .'J6 Vic, cap. 2, sec. 1.
There is no doubt that this corrupt practice was committed
liy Davidson with the actual knowledge and consent of
the appellant, who was one of those who received the
liquor or drink, whether he invited the others in and
treated them, as some witm^es ^y, or was treated him-
358
PHOVINCIAL ELECTIONS.
[A.I..
self along with the others by Sullivan, as it is put l,v
Sulhvan, and by the appellant himself ^ '
The question is whether, under the.e facts, the app.l
knowledge and consent, commits a corrupt practic" ^ ^
argued that as sub-sec. 1 makes void the elect-on ^
reason of any corrupt act co„.„utte<l bv a eatlfda •
eonnmtted by his agent, either with or withrt t t-v' '
ledge of the candidate, and as sub-sec. 2 does not sav "
chrect words, as was said in sec. 46 of 34 Y e^' ^1, t'
a corrupt practice committed by o,- with thJ l i
and cons^t of the candidate s^.a^^^'^Z":^
and al^ disqualify him. but merely says that,t^:; j
to the cecLon ban, ro^d, he shall be disqualified-it n,
sha^^^f I f"^t"f "" \'' '"'"'''' -^'^-the candidate
■shall be disqualified; and that unless the election i.
avoK^d by sub-section 1, there is nothing in sub ection
iJesides hea mgthe argument addressed to us in this case
I have had he advantage of reading that part of the :
ably argued judgment of Mr. Justice Gwynne in £
Lincon case (post), in which he discusses the consCt „
o sub-section 2, and takes the same view whilll ,
been dee aredlT" '"*'"" "^" ^" ^'"^•'^*-» ^-^ ""^
Act of 1871 d « ? ''""P' ^'''''''■' ^'"^ «^^*-" 3 of the
Act ot 1871 dehned corrupt practices as including bribery
reference to elections, or any of such offences as defined
1875.]
NORTH WENTWORTH.
359
by Act of the Legislature. Under this definition nmnv
acts were included which were not necessarily committed
liy either the candidate or his agent.
Then section 4(J of that Act, which declared that where
it was found by the Judge that any corrupt practice had
oeen committed by or with the knowledge and consent of
any candidate at an election, his election should be void
and he should be disqualified, evidently applied to avoid
an election and disqualify the candidate, by reason of the
commission by any one, whether his agent or a volunteer
of any corrupt, practice with the knowledge and consent
of the candidate. What was not provided for by that Act
was the avoidance of the election in case the agent, with-
out the knowledge or consent of the candidate, committed
a corrupt practice. This omission has been supplied by
sub-section 1 of .section 3 of the Act of 1873; and the
cbjectoi pa.s.sing this .section 3 probably was to supply
tl.is omission. ^ •'
Having regard to the course of Jegislation with respect
to purity of elections, which has tended constantly to-
wards greater strictness in the provisions for rei,ressincr
every act and contrivance by which the perfect, freedon"
and honesty in the exercise of the franchise may be inter-
fered with ; and this policy being distinctly apparent in
several of the provisions of the Act of 1873, particularly
in the extension of the definition of corrupt practices by
•sec. 1 there is no reason to suppose that the Legislature
mtended that any election which would have been avoided
under the Act of 1871 should stand good under the Act
ot 187c ; or that while a new ground for avoiding an elec-
tion w^s added, viz., when an agent, without the candidate's
knowledge or consent, committed a corrupt practice, it was
intended to declare that a corrupt practice, committed
with the knowledge and consent of the candidate. Out by
one who was not his agent, should no longer either alfect
the seat or work any personal disqualification.
It would require language very clearly enacting sroh a
change to have the efiect contended for. We n>'xst uot
'"?(■
360
PROVINCIAL ELECTIONS
[A.D.
reganl the question an relating , -nly to the sellin- of lirmo,
attaveras. It extends to hrihery, undue inHu.nce. an,l
all other prohibited acts which, according to the conten
|ion of the appellant, may now be conunitted or practi.s.,1
by volunteers, with Ih, knowledge and coi.sent of the
candidate, without my further risk than th.- rv^ of
destroying the vot. that is inrtuenced, and incurrin.. the
pecuniary penalty. If it is answered, that bv the candi
dat.4s consent the volunteer beconi. s ad hoc "an agent su
<loes the tavern-keeper.
The contention is founded .,n t.ie assumpt,,,,. that the
words in sub-sec. 2, '• in ad.lition to his election, if b. has
been .dected, being void." d<. ,iot curry with then, a
declaration that the election shall be void, and that there
IS nothing eLse in the sub-section which has the effect of
:!.v\j;ding the election.
L. t us test this by reading section .3 as api-lvino- to a
:1< halted candidate. He will not be touched by sub-"sec 1
a^ he has not been .lected; and when we si.nply omit
Uym sub-sec. 2 the words which .lo not concern him vi/
"in addition to his election, if he has been elected, bein'o'
void, every word that remains is perfectly applicable to
him. There is no doubt of his dis.jualification by rea.son
of a corrupt practice being done with his knowledge an.l
consent. °
_ If it is still urged that the first sub-section, though not
in terms affecting a defeated candidate, must nevertheless
be read with the second, or tho,t the second must be read
m the light of the first, as if the words were, "by the
candidate or % his agent, with his knowledge and con-
sent, I answer that instead of importing into sub-section
A vvorcis which cannot be so introduced without doin-
some violence to the structure of the clause, it will be
much more m accordance with the spirit and object of the
Act If any change of reading is to take place, to read the
first sub-section by a slight transposition, as if worded
thus: "When it is found .... that any corrupt
practice has been committed at an election by any can-
1873.]
NOKTH WEN-nVORTH.
861
(iidatc '('/((/ hns hecn elected, or l.y his-agoiit, whether with
or without the actual ]<no\v]od<,'t) or consent of hucIi can-
didate, the election of such candidate shall he void," which
in 110 way chan<,'es the effect of the sub-.section ; whih'
as it seems to me, it removes any pretence for modif \
the reading of the .sucond sub-.section hy any referent
the first, at all events a.s far as the defeated candidate .s
conce' ued.
Th. 11, i.s a defeated candidate to be ilistjualified on
i^roiuids which dc not affect a suoeessful candidate i The
sul .-.section cannt.i he so construed. And if we read the
dis(|ualifying clau.se, we find that the candi.late is made
incapable not .mlyof "teing elected to," but '' of sitting
'/.the Legislative As.sembly" "during the eight years next
after the date of his being so found guilty "—a provision
which of itself vacates the seat without the aid of the
precedin"- part of the .^ub-scction.
I do 1 ,t, however, see any necessity for resorting to any
subtlety of construction. The plain words of the section
are, in my opinion, easily intelligible as they stand— the
natural meaning being that a candidate, if elected, shall
Io.se his seat in case a Juilge reports that any corrupt
practice has been committed liy him uv his agent: tliat if
a candidate commits or consents to the commission of any
corrupt practice, he shall be subject to the penal disquali-
fications, which, if he has been elected, include, but are not
confined to, the vacation of his seat.
Appeal dismissed with costs.
(9 Jmirnal Legis. Assem., 187.5-6, p. 12).
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362
PHOVINCIAL ELECTIONS.
[A.D.
NORTH GREY.
Before Mr. Ju.stice Gwynne.
OwKN SofNi), ,''j(h ./»„>■ a,,./ Jml July, ms.
Before the Court of Appeal.
Toronto, ISth and J-,th Hi'iUemher, ms.
THO.MAS BoARDMAV, Petitioner, v. Thomas Scoir,
Rc^'ipoiidcnt.
Political a»mriiUioii — Annirii—i'Vlf ..,.„ ii „. _
""v:^^^:;:, SSI.~t:?^.f-^*' *•- ■-• ^^^^ of t..
ana that sucl. t^.tinirw^'^rc^^^S pri' tiL^t'w *'°" ^'""^ "*«•
opposing the other ( nmiSh „. r r?P"''^"J« *''« resnondent an.l
meeting whici he attem e M .'."f' ,"",""' •»" '' '' ' ^''^ at another
l.earn>g) that he w,^ act f^tl.^rn n^ h' "'"* "".* "' *''*' ''eBpon.lenfs
once in the reiSiftt cf.n^mi'ttrv^ '' '•«"P'';"'«"t'« ''el^lf M. was
SSfe e'cZSn^' ^^ '1"« ","« "^ '"*«"*• *"« respondent.
p., a
le resnniwlm,* i • „• o— "'"'■<""= purposes 01 the elec
UDDortero ;/'''''"« ^•""'"8 '"'"'•« <»> "'« PoUing day. met one
the bar being clo" eVl P Trea^Vf ^ ^ * '\^^^^>' "T^"* *° " t«^««^. ""1
//-•W bv the C^nTfl ' , 'e-Po'xIent in the hall of the tave^,.
ofatearb?'^,^,^^^^^^^
practice and avoide'FJhe e"ect,o" ** ' ''"""' "^ P°»'"8^'« « corrupt
aa the statute does not auC£ tl^SXil^r^Kr^of ^^^•
prJc'tLr''*'''" """^^'"'^"^ *he usual charges of corrupt
1«75.]
NORTH GREV.
868
le mun'bers of tlia
Mr. J. K. Kor for petitioner.
Mr. M. G. Cameron, Q.C., for respondent.
The cases relied upon by the counsel for the petitioner
at the close of the evidence, as sufficient to invalidate the
flection of the respondent, are stated in the judgment.
OwYNNE, J.— I propose to deal with these heads of
complaint, upon which, after hearing all the evidence,
the petitioner, through hi.s counsel, rests his case, in a
different order from that in which they were taken, and I
shall deal lastly with the most serious, involving a grave
charge, affecting not only the conduct and character of
the respondent, but his civil status for a period of at least
eight years, if the charge is establirhed.
No duty can be more painful, and .sometimes more
difficult, for a Judge to di.^^'arge than that of estimating
with discrimination and with due regard to the interest
of the public on the one hand, and to that of the accused
on the other, the proper weight to be given to evidence
ill support of, or in refutation of, charges of personal
bribery. There are so many things to be considered.
We mu.st be careful not to be too hasty in rejecting the
accu.sutory evidence as coming from a tainted source, for
in cases of this kind it is frequently by the recipient of
the bribe alone that the offence can be proved. Of the
general character of the accu.ser we frequently kiiow
little. Although the recipient of a oribe, his trutliful-
ness may be as reliable as that of the accused, who always
has a strong interest to maintain his position, even at
the expense of hi.s veracity ; but again, the accuser may
be a person of such a character and habits as to make it
difficult to place implicit confidence in his statements,
although it may be impossible to adduce evidence such as
the law requires to impeach the witness as unworthy of
belief. We must, therefore, in all these ca.se3 scan with
care all the i.urrounding circumstances, for the purpose
of determining upon which side the truth lies, namely,
whether upon that of him who, while accusing another.
304
I'UOVI.VCrAL ELECTIONS.
[a. I).
acc.,.se.s hunself also, ..,■ „,..„ that of hi.n u-ho assort
; o.n encnnstances; the .uanne.- of the w t esse
. ^1 as the .natter of their evi.I-nce ,„ust I.e ..nij^nth-
>t. I; an.l atter all. all that aju.i.e can .lo is to ex s
tr?:r''^^''"V^=''<^'^'-vMe evidence anlfi::
".^ ot tae w-,tMesses have impressed upon his n.in.l
;>} iHoijre Wrijrht, ,n treatin^^ at nieotin-rs of connniff .
■n us own tavern. That a can.li.late ..^, l^^^ 7
-It ot the servjces of .nen.l.ers of a political a,sso at "
n canvas.n, f.,r hin. and pro.notin! his election as .
" Hke the.M lus agents, fo,- wh.,se acts he shall he rt-s, ,
.aet^,..ocanno,Ithink,..eany.,oul.t;bnt3 ;
eo.il.l he ..ore .-epug.iant to comnion sense an.l jnsH ^
^an to hol.| that hecause a political association pu S
^^'»' '>'• supports a particular can.li.late, theref.,re Ive v
-n.I.er of that association heco.ues .>.;/..; hT a"
bers of the respon.lent s c , ' . a '' T" '"''"■
-^.ufth:;ass.>ciat^:;.,,„;,^3nhr^^^^^^^^
>tn ul not very clea,-ly appear; it may be a.hnifcte.I
tha he .n,,„,er. of the association who assen^bl a
^^ n^'hts we..e el.-ctors asse.nblecl to pron^ote the dec io.
ot the respo„.lent within the 61st sec of the Act of IK. s
as a.nen.Ied by the Act of IHTi . V . '"^
I • 1.. .. ^ °' i«7.j, so as to make Wri.rl.f
u...»«ll,<n„l,y„f c„,-„,pt practice, i„ ,upplv ^„ dlk"
weie not, that I can my. ,„ any »»„,„ the «„ont, „f th".
x-.pon,lent, „,■ i„ any way authorised by hin^ I jL
-n tht »Ponae„:iraC.:;-tT.t;-;;«:
18V5.]
NORTH ffHEV.
865
there was no treating within the nieaniny of the filst
section, and I can tlierefore arrive at no other conclusion
ui»on this hea.1 than that it is not pi-oven. in so far as tlie
respondent is conceine.l, or so as to affect him ; aItliou<rl,,
as affects Wright himself, he lias siifHeiontly a(hnitte(l tliJ
charge to suliject him to heing reported as having been
j^'iiilty oC a violation o*" the section refei-red to.
As to the corrnpt practices chai-ged as having l)een com-
mitted hv Dr. Mc(iregor at Deshorough, Chatsworth and
Williamsford (although whether or not there was treat-
ing hy liim at Chatsworth does not appear to he clearly
establishe.1), there is, I think, sufficient estal.lishe.l to .suh-
jeet hivi to all the con.seijuences anne.xed to the violation
of the 61st section of the Act; bu.1, \^hether or not the
respondent is to he affected by liis con.luct <lepends upon
whether Dr. McGregor was or was not an agent of the
respondent, for whose conduct the latter is to be held
responsible.
It has ])een in different cases .said that no one can lay
.lown any precise rule as to what will constitute evidence
of being an agent, "^ach case must depend upon its own
circumstances. Definitions may l>e attempted, but none
can be framed applicable to all ca.ses. " It rests with the
judge," as is said in tiie Wahfichl cmr (2 O'M. & H. lO-S),
" not misapplying or straining the law, but applying the
principles of law to changed states of facts, to form hif*
opinion as to whethei there has or has not been what
constitutes agency in the.se election matters." We have,
however, the opinions and savings of some very learned
Judges to guide us in arriving at a just decision, and first
I may place the observations approved by Keogh, J., in
the Sligo case (1 O'M. & H. 301 ), as a rule of general appli-
cation, namely, "that the evidence ought to be strong,
very strong, clear and conclusive of agency before a judge
allows himself to attach the penalties of the Corrupt Prac-
tices Prevention Act to any individual."
The language of Baron Channell in the Shrnvshmj case
(2 O'M. & H. 36), and of Mr. Justice Mellor in the Bolton
366
I'HOVINCIAL ELECTIONa
[a.d.
y (2 () M. & H. 140). i. also i„.str«etivc.. The f<,ra,er savs
Canva.ss.„g will only aHbnl prcnises f...„ whicl a juX'
•I'sclmrKing the function, of a jury ,nav JnZt ^
a..nc3 is estaUished ; " an., a,a^:i':;:"rS "t
H. u„.lerstcK„J how far. i„ ,„y opinion, fmn, .^^^ 1'^
assuj^, those acts nu.st be fn.n. which you Z^' ^^
hat k,„., of agency which is to Hx the ca„,,i Z w
An,l M.. Justice Mellor .says. " The fact of a nmn havi, .
a canv,«s-l,o,^ is only a step in the evidence thlt "i
can^a.se.• .«Mo,.«.«f h, the ca,ulid„t,^s ag.nts ; if you wa„t
.> go tur her call the canvasser. ..cause the Ten. £
ot a man havang a canvass.l,ook and canvassing Ll
aH^t the principal «... J .... ,,, „,,,, ,,, J^^' ^^ ^
i %-/. There ,s nothing n.ore difficult or n.ore delicate
than the ..uestion of agency; hut if there be ev C
I ild'lha 7'^'' ''^""^'"' ^"^ •' ''^" ^' eonscientiou ,;
be held that his acts bind the principal. shou 1 ^t
of l^iienris :: ■* "";:^ *" '"^- '"^^ •- -'» ^ >- -
per on to. '^"''"''''^' ^''P"*^" and authorise tl...
person to be h.s agent, an.l di.l the pei-son so author!.,. I
accept thedeputation. U .o, to whatlxtent Ze^"'::
or the perfonnance of a special isolated act, or fl"
m vTuTlr"" "" '''' «PPointn.ent as agent ;i
ral y but With power., contine.l to a lin.ited district con
s .tutmg part only of the electoral division. ^ wt tl J
0. the authority =erj;::r^:^:^^
nature and extent of the liability of the principaT W
oy direct positive evidence, or may be inferred from th.
acts and conduct of the parties; Lt al, inWeT ex-
^**i^
1875.]
NOHTH OREV.
367
eluded If the evi.lence ignoi-es any intonti.m upon the
part of the parties either to confer or accept authority
and at the sau.e time shows with reasonahU- certainty tliat
acts which m certain events might he suffieient t<. warrant
the drawmg an inference of an authori/e.1 ageney havin.'
iK'en created, are attributable to or e.xplicahle I. y other
inHuences afleciing the mind and conduct of the party
al ege.l to be an agent in the perforn.ance of the acts
relied upon as estal,li.shing the agency. In such ca.s,. there
IS no agency, an.l the party a.ssumed to Im3 a principal
cannot be affected by the acts of the other
Now, in the case of Dr. McGregor, the facts may be
.rieHy .stated to be. that having heretofore been a n.em-
her ot the party t(, which the respondent had been always
opposed, an.l being a public man of considerable import-
ance and public influence in the town.ship of Holland
«.cently by Act of Parliament .separated from the North'
Riding of Grey, and being very much annoyed and indi..-
nant, upon public grounds or otherwi.se. with the separa-
tion oi his township~of which he ha.l been just recently
(" ected reeve-from wlmt he cnceived to be its ,m>irnl
phieal connections, he resolved to use all his influence t.,
oppose the ministerial candi.late for this Ri.lin-r He
publicly announced his intention of .so doing, as I gath.T
rom the evidence, at the close of the meeting at which
the nomination took place, or I .should .say previous' n-
some of his former friends .seem upon that occasit >
have called him a turncoat, which led to .some warm alt.
cation.
The respondent fonned a committee to act a.s his a-ents
to promote his election. Dr. McGregor was not ont^ nor
does he appear to have been ever asked to be one It is
rehed upon, that upon one occasion he was in the respond'-
ents committee-room; but the evidence shows that thi.s
was for the purpose of consulting his local knowledge a,s
to the most suitable places at which to call public meetings
of e ectors in his neighborhoml, having regard to the then
condition of the roads-the great depth of snow rendering
mn
I'noVI.VciAL ELECTIONS.
[A.„.
most places inacc.),s.sil)|,.. He hIs., «-„. . «•
l"i"l.-l «i„l i-i,i.„l„u,| l,v n,,„, „„„i„ ' ""■ '" " I'"l« '
H.ai-,..s. He took also so.ue of ih.S , ''"'
n.iKl.l.o,.|.oo,l u-he.. 1. .. : , '* aH """ 'r "'" ^''"
•l<> so, ta .se e iar<'es iiiiul.. In- ,.., i- ■ ""^ P"M'I U,
rr-'"- --•-«- -;,::;-;:;
n * '^ i'Jn\tnt'(i at i>esborouL' i Tin,, fl,
I^..ctor wa.s not an elector in the Ri.lin. tn t he 1
aske,! the Doctor to cT t t^ T T ?""" '^ '"^^•"
liis behalf H H , ">«-'«ting to speak upon
, ,:• "" *''""^,'''t IH-rhaps that it was verv lit i
hismrtv T ' '""' aJ'^'natecl bin. fron.
it may bo co„ee,k.,| tl,at l,„ wa™„ , ' -n '' "■'"■■ "'"'
" IK Jiad nonitention to dismount
1S75.]
XOHTH OHEY.
:im
unt. hoslmu .1 ...tl.erfail ..r succoe.! i„ .i\Wi\ug tl,cM.1.j..ct
for tl.o tn.H. l....„. „..H,,,t t,, l.i, i,..a,t. „auu.|^^ .la,„a.: n-
as tar a,s h. c.ul.I th- ...inisfy that I.a.l witlnlraw.ri.fs
ownslup t..on, the Ri.li,.,. l.y th. .letVat ..f th- .a.uli.hu-
^ ' 'H'l H-„ put tonvani in thdr interest ; an.l I have „..
'1. i.t-at least such .s the iu.,..e.ssion left up.m n.y n.in.I
- hat he never ente.taine.l the i.l.a of M.e.lin. llis own
.n.lepen.lent .juarrel on hehalt of the township of which
he wa.s reeve, a«<l which he re^anlclas a n.at/erof .rave
Pnl .e .non.ent. in the n.ere agency of an in.livi.luaT. nor
I .Itlnnk the respondent ha-l any i.lea that he ha-l en-
.te.l the Doctor u, the capacity of an a^ent. Such an
K I have no . loul.t, never entere.l the n.in.I of .ither
tile one or the other.
Iti.ssai.l that at the Chatsworth n.eetin. which was
.1 m the Inn.ts of the lJoct<.rs own township of Hoi-
uvl he. m the presence of the respcn.lent, stat.Il that he
uas acting there on the respondents hehalf. Now, with
«".si..ct to what actually took place there, there is n.uch
. .«erepancy o opinion. The gentlen.en opposed to the
D tor .1. not then.selves agree as to what did take
a . one tln„kn.g the Doctor's renmrks were conti-ned
. the particular act of insisting to know how n.any ot
he opposing candi.lates friends intended to speak, for
".the, and that he made this dunand on behalf of the
H-spondent; others attril.uting a wider signiHcation to his
wor s. namely, that he was there attending the meetit
te..e.spondent-s behalf. The Doctor himself .says, tha^
N hat he ,sa,d was, that the meeting was being held in his
core he had a right to interfere. The respondent
as that he was m and out of the room, and that he .lid
t hoar th.. Doctor make u.se of ftny .such expression as
that he was mtertering upon his, the respondents, behalf
or that he was there upon his behalf. All a.lnnt that
^ e was gi-eat noise and confusion ma.le upon the
Doctor.s interference, so that I can well conceive it very
870
PROVINCIAL Er.EtTIONS.
[ad.
m tmt p,.l ; h„t ansunrin,. that tl.o I).H.to ,..ak,
-i tl... lanjfua^e attribut...! t<, hin, in the «.„... st.on. .,
.j,'n.nst th.. n.spon.I..„t. I ea,. wdl conceive that in t
<t the ,K..s,t,.,„ „, which the re,sp.,„,lent f.,un.| hi. |
on nu.nU.,v. l,v th. tVien.I.s <,f his opponent, he ,
wel dcHire to avail hin.self of the pow.!.,,., ,;., ..,
Hoc o,. ,„ t .,u particular en.er,..ncy to necure an cpaah v
ut the nmnher of .speal<ers on either si.le without nlaki i!
ht acl V"; r'" ^"""■""^•' ■^" '^^ ^" '- '^«--t'"l ''V
ns acts out of .loorn in the in.h.lp.nce of a hal.it whi.
s - strong upon hin.. a.s he ««p. of treating hi.s frie
pon all oeeas.ons when he ...eets the,., away f.-on. ho
.at he coul.1 not resist .loing it. thon.^h at the pe.-i f
tjo penalties attending a plain violation of tile law
Upon the occa.sion of this ...eeting at Chatsw<„tl. t|,.:
witnesses say that the I)<,ct<,r clain.e.i to In- of more i,..-
po.-anee tha.. the res,>ondent. This view ,see...s ,! !!
c.sely to acconi with what the Doctor hin.,self give „s
t<' "...iersta,.,!, in virtue of his dignity a.s reeve in hi"
own townsh.p; and I confess that the evidence has i,„.
ihy would every one wh<. can.e in contact with ti,..
Doc or dunng the contest, that whatever he did was ,lo„..
m he ca.-.y.ng on his own independent battle, wag.l
th he nunistenal candidate for his own reasons ,t„l
ml objects m connection with the particular matter whiW,
fe^ive h.n. offence, an.l not in any sense as the agent of
the respondent, a position which I an. .satisfied the .e-
spondent never conferred upon hin.. nor did the Doctor
r:;! tllr-t'"'^"'r"" of our municipal institution;
s such tha ,t ,s not meet that public n.en should 1.
ettered „. t he expression of their political sentin.ents, o.-
m the.r nght to add.-e.ss public meetings of elector's du.i,,..
ttei 'Tnn " ;^'^' '"^ ^'"'' '''*'■ ^""^'^'-y *° '^-^^ -tent';
then publ.c sent.ments as expressed at tho.se ,..eetin..s
should be attributed to n.ere advocacy as the agent of;
1N7:..]
North fjREv.
371
i..».,. r,,„„ ti„.i, ,. ''■"" ,'""'"' T''- ""■"'>•
7"'" i'~-"""""f ""• '>-t,„.. „.i,„ i,i,„».i , „' , "
TIk- IWt« i,.|atiiijr t,, tlii, r|,„,,,,. „,_. ,., ,.
.•«t. k.twi.,.i, .-) „„,i 4 „d,»k i„ „,:„,, 1 , "''""''■
petitioiiLTs Hinet cs, nut havin-r Im.l „ ? "*^^
any n.f..sl„„ent .in e 8 o "in ^^.r'""'"^^ r^'
;inee S o'clock, an,. I .houid so I/aVh^'' . ""''""''
Mr. Patei-son very Ici mil v ^/ ".''•^ *''""'< i whereupon
version, said thll^.e ^ ^i, "r^tl^ 'V'" "^^7*'^"^'^
^is...odeof,ivin,..eJ.c:t;:'^'::^^^
■ll^-^'ul or.acconlingfcoMr. Paterson s vers on fch ,"
-t aske.1 Mr. Patorson to treat hUnl^Z^'^Tr
af,'ree.l to do, l,oth believini: this to 1« V I ^"'^''''■'^'^»
they went over to^ethcrto i. '^ .T'' /«««'-'«%'Jy
'^i^ closed a,ai.,::t: :sxj:t::;^7^^^^
get the.a each a glass of ale. for which Mrpl^ ^ ■'
-a wh^h they drank in the hallor^f ^^^^^^^^
i£^..
871
I'HOVINCIAI, Er.ErriuNs.
[.v.r.,
! liJ
Th.. font,..nti..n now \h. tluit this ,..,n.|„,.t cnustUut
I>nnW.lann.Unv..H,lH.MoS...t.,n..|l.^^^^^^^
tiMK c..nt,.„t,on. in linM.. i,. two capaoiti.. , ' "
Kuvrof Hfrlass t..S,.ott; nn.l "ml i, ,i..i... • .
n.>t .ncMvly as havi,.-, .l.-unk tlu- ,,|a.s.s wl j
J,'av.. hi,,.. I.ufc als., tor l.avi,,,. ask.-.l Z
hi...th.,i.. , n.Mn.at.^.:^l^^^^
a "I hoth ot th...... to,. |,.ni„.. „sk...l Sni.,..s t., sd
"le- A"'> - it is c.o,.t..„.|...| that to,, thi a t t H
'-;t only v..i.|,...t that Sc..tti..li.,,a,i;:!,'^^^^^^^^^^^
llH- arp.,..,.nt ,s, that it ,,s a violation of this da f
the Act to,. an3- ,,..,...,.. wl.oth..,. tav-.-n-k..,.,,,.. or
kcH,|K....or not. .Iu,i,.. ,,o|li„,, ,...,„, to soil 'or X
H|..n nous or f..r,„c.nt...| li,,„.,rs wl.at..>-er wh.^ 1. '
-a,....H^.o|.s,.l,..t.,a,.y,L,..,,,,,J;^^;^',^-^
M a imvate ho„s.. or tor t,.ans,„.,.tHtio„ a!.,.oa.l .-v,., to.
•"»n,c pa t> tak.-s a fn.n.l who does not live within tl„.
''|--e.pd,t,^a..lis...,tanelocto,■.l,o..^.toIi^^^^^:^:^^^
111,,,, and L'iv.'s )■ m nf 1,; r . ""'m wiiii
^i>ts /,,,,. at Ills ( ,n,ii'r a <r iiwM ,x „i
„ I. 1 1 ,. . '"n "JLIIHI lilt' ,liuni(.lli)i ifv
a^,s.ea.K^,,ra„dyto..t,.a,ispo..t..dal.^
I . "! '•' """'"' ""•' ^^'^ '''^^^^^ in the one cas..
or not tl,s,s the true construction of the Act I .lu „ut
am the et.„e i-eserve n.y opinion until some sue. case
t^^^^^^'^'z-^'^i Atp,.sentia...:zli;:
thaf to -'T !'•"'-• "t th,. above cases, and to declare
that to be a violation of the law which, beyond all .,ue.
IS73.]
NOHTH fiiiEv
jir.'i
.■iii,.,„e«„y li. t , u ' '•" ■■"■ "'"' '" '" '"• '■■■'"I
•Link,, v,i;r:I" ';,:::';;i:;,:;;'' 'i:™:™"':' "■ - ...•
"Hi.y...n.„„,„,,r,,:;";::;:'!;';::;x:vr;,; ■
The question tl,,.,, ,v,s.,lv,.s its.-lf int., this .
fiver if tl, .r "'■ "' """"'°'-- ""1 «l»" tlic.
Ti;;. 1": : „',:'::■:,:: ■;,:■" "-' ,"™- «"otwr ,
";■"■, «-u..m,s; t„.c.„t.v ,«,■„.„, to b„ t,,'at"a t .
mimuii 11., to riiirelias,. „„,! • .7 ""' ''y » I'l-'isou
"""•' III' Act would amount to Slii.ooo
ill .'faTZt'i,"'''"'' "; ""' "•'"'•"''""■ " "pp-'i" "= "10
.i.-.-:n;,:,:;;rr:':::r:°='':rt''r""'J"'''''^'
374
PROVINCIAL ELECTIONS.
[a.d.
W,th the ethics ot the case I anv not at present concerne.l
The same nmy be and often is said of tlie receiver of
stolen goods, yet a receiver was never Ibr that reason lial.le
to be imhcted for the larceny, nor could he have been
indicted without a special Act constituting the act of re
ceiving a distinct offence. Then again, it is said that th.
person who procures an act to be done by another is him-
self a principal and so liable. That, no doubt, is a rule uf
Jaw and a very good one in its place, but it is not of uni-
versal application. A man who procures another to .sell
his arm and to lend him the money, is not himself the
vendor, nor is the rule of universal application in the case
ot crime. A man who procures another to commit bigan.y
IS not himself guilty of bigamy. '
These and like .suggestions are all lost in the consider-
ation that it is impossible for a judge to pronounce that
to be criminal or penal which, without an Act of Parlia-
ment, IS neither the one nor the other, unless he has the
authority oi the Legislature unqualifiedly conveyed i,
expres.s terms for doing so. He cannot proceed ipon
suggestion of constructive guilt. This seems to afford a
complete answer to the point, in so far as the respondent
IS concerned. ^ ""utm-
contnt *"'' Z^l'- ^'*'''''^ "-' ' »'"^^ ^' ^«"'^^*-l' I «hal'
content myself at present with saying that I do not think
the statute authorizes two penalties in the case, and
therefore for this act of treating I shall not report hi„.
as guilty of a corrupt practice within the Act. Whether
or not the Legislature contemplated, when passing the
6Gth section, to impose a penalty upon the tavern-keeper
tor such a single act as is proved here, may perhaps
terms of the section, even though we should read the
second branch as dependent upon and connected with the
hrst I feel compelled to report him as guilty
th.^'i^^'Vlu^^' ^ ^^J"^'^^' ^^^^^'•^ ^"d determine.
hat the said Thomas Scott, the above respondent, was
cluly elected as member of the North Riding of Grey and
5NS. [A.D.
at present concerned 1,
1 of the receiver of
for that reason liable
could he have lieun
tutiiig the act of re-
n, it is said that tlu'
i by another is liim-
o doubt, is a rule uf
but it is not of uiii-
ures another to .sell
, is not himself the
alication in the case
r to coniniit bigamy
ost in the considei-
to pronounce tliut
t an Act of Pailia-
, unless he has tlie
iedly conveyed in
lot proceed upon a
! seems to afford a
as the respondent
is affected, I shall
fiat I do not think
in the case, and
all not report him
le Act. Whether
when passing the
he tavern-keeper
re, may perhaps
ithin the express
should read the
nnected with the
uilty.
i and determine,
respondent, was
ing of Grey, and
1875.]
NORTH ORKY.
375
that the peution against his return be and is hereby dis-
missed with costs to be paid by the petitioner to the
respondent; and I shall have to report as guilty o a
violation of the 61st section of the Act of 1868^he Llow-
mg persons, viz^: Dr. Duncan McGregor. George Wright
John Hill and Edmund Haynes. Some evidence was ato
given against one Button, but as he was not called him-
self, and his first name did not appear in the evidence, I
a... unable to report him. I shall have also to rep;r
Thomas Spiex-s as guilty of a violation of the 66th secLn
of the same Act. ^^f^^n
The petitioner appealed from the decision of Mr. Justice
Gwynne to the Court of Appeal.
mterson JJ. A.), following the judgment in the North
Went^orth case (ante p. 343), reversed the decision of Mr
Justice Gwynne and held that the giving of the treat by
Pa erson, and its acceptance by the respondent during
hng hours on polling day, was a corrupt practice co^
n itted by Paterson with the knowledge and consent of
the respondent, and that the election wa. avoided
The costs of and incidental to the petition and appeal
Zer '" '' P"' '^ *'^ "^P«"^-^ *« *he p'e t^-
(9 Journal Legis. Assem., 1875-6, p. 15
).
376
PROVINCIAL ELECTIONS.
NORTH MIDDLESEX.
[a.d.
Before Chancellor Spragge.
London, Uth, mh, mh ami CM September, lS7o
John Cameron. A..,.w.., v. John McDougall, Responda,
UiU, that it was not proveil that fKo i„*i •
the voter referred to * ^^^ '^*'«'' '" •^l"«'"'on was written l,y
evidence 8i.owe(l that thouKl/tlfevTerh-I- '-espondent. the
:ng of ti,e deed had nothing to do with She eTeS" "*^^- ^''^P--^"
''"^'Z^i:^ 1^ arr Sir r fr« °^ ^"-i'^^'- -
were made in jest ; but astliB nli^ elect on, but he swore the oUIms
a^'ent of the reipomlen at tt timfof'o' a l^S^'r ''"'' '^^ -""«
given to the charge. °* "'^ aXh^sA offers, no effect was
^^ctS^-SS'^St^^a^tSS^ -,S^ rf"?;!- '''^^' -'1 on
motmg the election," and after tKl?,^''','^ ^T-^'j*' P"''P''«e of P'o-
asseniEled was over the electoL loft 1 !!'/?•'' "^ '"='' **>« ^le^^tors L.l
electors within s. 61 o^f tiie Electio^ llw "f Tse^""^"* *° '"^''^"'SB «f
2. That the ineeting of elertn™ f,^.. n, ■ ■'
^eetin^asse A f^^^So^^f'^r^ £ Sf "^^ '' ^
'rt"tr„rit-f ;le^r:;-e;lrlr :r t -'X -atute >
must be judged by all the circnmaL^. '""T '"'*'?^ J*.«°.' *"'! «»-' i"ten
&mA/., wiiere it is done bv '""™'f "'^«^ ''^ «^'"ch it is attended;
repu'tatioiiTo goo "feTlo^shiraiSl?" l" ."r'^"- ^"^ '"'*''« f^^ ''""^elf a
electors to votf for him it sVsnlt^n^ '^^i; *"'' ^^^""^y to influenc
his election at common law ^ "''"y- '^'"'''' ^°"W avoid
'^^C^!^'i^J:;,i»^'!^^-;- of 'V^ business as a drove, ha.,
but to a less extent tlaifwa! his halT' an f*''"'. ^"""^ ^' ''^■^''
purpose of ingratiating himself wlttte'efecto";.' '^P''''*^"*'^ ''' *''«
nJl-rlri^a^rtrSr.!' ""* ^"^'^ ^'-^-^^-^ -- -* -rmpt, and
pltLr""^' "'^^'"^^^ "^^ "^"^^ ^h-^- Of corrupt
1875.]
NORTH MIDDLESKX.
377
question was written In
was not corrupt, and
irges of corrupt
Mr. J. K. Km- for petitioner.
Mr. R A. ffarri.mi, Q.C., and Mr. Dmcaa MacMUlan, for
respondent.
xyV^'^T':' ^^''"*'''" ^^^'''''''^''' who lm.I oflbre.l one
\ il ha.n Rohson a .sheep.skin if he would stay at home on
election day-referred to in the judgu.ent-durin-. his
exanunation .said that RoKson afterwards wrote to him
asking for the .sheei),skin, but the letter was n >roduce.l
J^or the detence a witness was called to prove the hand-
writing oi the letter sent to Stevenson,
J/n^.;T objected. The letter must be produced. Evi-
dence ot the letter having been .sent was given by the
petitioner, but no evidence of handwritin-r
SPRAriOE C -I hold that it is not proved by the peti-
tioner that the letter in .luestion was written by the
person m whose name it is .said to have been written.
The facts upon which the case was dlspo.sed of appear
m the judgment. ^^
Spragge, C.-I will consider first the alleged bribery
ot Michael bulhvan by Robert O'Neil. Sullivan was in
possession of a Canada Company lot, and there was a diffi-
culty in reganl to his getting a deed of it from the Com-
pany The charge is that O'Neil held out to him that if
he procured electors to vote for the respondent he would
aid h.m m procuring for him the deed from the Cana.la
Company, and it is repre.sented that the getting out of
the^deed was intended to be kept hangir, ; over ^he head
ot Sullivan as a spur to his exerting himself in procuring
votes ; and, though in fact obtained before the election it
was only very shortly before, and its procurement expe-
dited m consequence of the commencement of an action
ot ejectment by the Canada Company
tilUf'^rtr"? !^ P''*P^"' *^' procurement of the deed
11 after the election is not denied, but it is alleged that
It was tor a sufficient reason, viz., lest its being procured
pending the contest might be laid hold of by the opposing
878
PROVINCIAL ELECTIONS.
[a.d.
upon Sullivan by O Ne %l"''P'''' ^ «--»pt practice
to brin.. anv unle in« T '''^' "° "'"^' '^ '« ^'^i'L
iiuj, un_) unaue mtluence to boar nnnn a.,ir
'■■i'- hun by any in.lucon.ent to unpoTthe '"' 7 "
inasmuch as be was alrea.lv and ifad L '^•''P""^'""^.
a warm supporter of the pa'-'ty t i, the T'l^'^
belonged, and wouM in any event wT '^■P7''^'"t
It is agreed that the actio' of 0^^^^^^ '"■"•
"-ntof the deeds was accelerated ircnleouelr'r.r
issumg of process in ejectment slV ^"f^'l"^"^^ "* the
substance the case made by the pet ion- 1 . '' '"
opinion the facts proved do nrsuotrtT M u" '"^'
. Pathy was felt for Sullivan rbvJ.?^,' ^"^'^ ^.V"-
lived upon and impro^vt^Thf^ rid'^f :;;:/:'
r^H^-^rfd^"?^^^^^'-
election I saTt 1 . , '"^'^^"^ ^"^ ^'^ ^^'"^ ^^
Sullivan is reTort d toT "»"f' ^^^'^'^^^ «*" -^a^
his evide.ce, that O'Neil spoke oil ." ''^' ^"
good liberal man. or may ZZ^XlTltT tV
was said to Sullivan, who had not known h'm IZ n
IS contended that I must infer th^f ?^ , ''^- ^*
ino- ,-<• f^ u 1. '"** '^"1^'' was said Caqsntii
ng I to have been said at all) in order to lead Snll
to beheve that the respondent would be inJrallJ^^^^^
him in money or otherwise-I snnn^ *"^'"^
1875.]
NORTH MIDDLESEX.
379
Sulhvan exerting himself on his hehalf in the election
But this ,s not proved. Sullivan does not seem to have
supposed that his support of the respondent had anythin^r
to do with ^he getting of his deed from the Canada Com"
pany. ^ He says he a.sked only one person to vote for him
and Ned says very distinctly that his getting out the'
deed from the Canada Company -A-as purely a business
transaction, of a kind to which he was in the hal.it of
attendmg; that Sullivan and another-one Fahey-em-
ployed him for that purpose, and for himself, that he
went to Toronto on behalf of both, and that Sullivan
paid him U2 for his expenses and trouble. He denies
very explicitly that Sullivan's support of the respondent
had anything to do. so far as he was concerned, with the
matter, and I think the proper conclusion from the evi-
dence is that it had not.
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 alle<red of the
respondent, consisting in the offer to one George Shiblev
of a sheepskin if he would vote for the respondent, and
m 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
rnade 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
btevenson 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
I ' I
380
I'ROVINCIAL ELECTioXs.
fA-n.
A statement that an nrt:.,. * i •, ^'
«h<>"l.I bo received Z. !" t !„ '• "" '"^''^ '» -J-t
"mke un offer ^v\nd, he nf . ''"."""• ^^ '^'•'l*<'''- > mv
an.1 then, in the t^T^^f' ^^' taken .senous,^,
hnnself afterwards with the n f . '?^ ^''''^'''^' •'*'^«'^'^^''
'•"^ '-kin.' at the pa tt ofs n '' ""^ ""'^ ^'^ J^^t;
tl.e nature of the thLro^reT U, / '^ T' ^«'^'^"". a..,
J«««-it is prohahie tha"t sl "n ' '"'"^^-^ ^'""-'- -•
^e -ys that it wastf a • rr"^'^*'-*-th wh..„
^'--ted of all difficulty I.ytCirc^'V' u'"^^^"' '^
-n was not at the time an a ent of '^''"^'^^ '^^' «*-•-'-
-natter occurred in the autumn L'f ^'^V'^'^P'^"''^"*. The
-tness thinks in Octobe TL t?. V ^""^ *"^"-^'-'
and. as the witness thinks after . ?^ ^^t^'rwards.
-J^-h was on the l^oif^^^J^^f^ -'"-atio„,
communication from Gilchrist fi"^^^ ''" ^'"'^^i^^^l a
«Ponden, asking Un.tot:^^^^^''''' '' ''^ -
was nothing shown to constitute ] '''"°"- ^here
Another point taken ^ It 11" ^'T '^'^''^ "-^•
were meetings of electo,^ ^^^T'" •'''' ^'^^^^'^-'^
61, at which there was treatinl wU In .r^""- «^ -c«oa
section, and that the same beirt^th 7"''"^"^" ^' *^^^
ledge and consent of the resnon ^ , ' ^'^"^^ ^^o^y.
«eat. and is disqualified Mr'lS^"'' ^" ''"'^^^^ '-^« -s
point is. that it is innnaterill ^'"'1 ^^^^^ention upon this
V the candidate him e o 1 1 a " ''^ *"^""=" --
and that the motive and Lnf °'"*' "^' ''^ ^ stranger
amended. innnaterialtLt !".'?'•""'" *^^ ^^^-^ as'
the case within the se"" n .'^hV: TT' *° ''^^^
a meeting of electors, such as is 1 . ?'"""^ ^^ *«
t-on and that it is with the actual t ^^ ^" *^^« •^^«-
;::iSe"-err.ad.k:r^jrs:^^
-"i5;:^sr:rr^f--^'-ection.
construction then put upon U U- mv i""'''^ "^'^'^ ^ '^^e
ence, that in that case the treatS ^ !' ""'^^ *^^« ^"^^r-
candidate, not by a stl.! ^ 'ZTl'' Z'-'^'"' '' ''^
fe -But I thought in the ^o«^A
1875.]
NOHTH MIDDLESEX.
S81
Em,' mse {ante p. 235). tlmtaorrupt practice participate!
m by an a^'ent, Leinjr l,y his participation a party tlieret.)
would avoid the election. This was under the second pro-
vision of section ()(i ; and this construction has now, I
understand, been approve.l by the Court of Appeal. But
my difficulty in this ca.se is upon the ipiestion whether the
treatings in question were to ineetinj,^s of the eIector.s
withni the meaning of the .section. I take the nieetin*' on
nomination day and at El.son'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, a.s.sembled for the purpose of pro.aot-
mg the election; and if the treating had been, in any
proper reasonable sense, a treating to electors .si, a.s.sembled,
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 attendinc^
these meetings were foi- the most part from a distance^
their hor.ses 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 describe.l
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
30 often called. Now, what was done upon the occasion
in question was in substance this : After the business for
which the elector.s 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
(loing this is in any proper or reasonable sense giving
drink or other entertainihent to a meeting of electors
assfa.^ibled for the purpose of promoting an election. It
m li..
11;
382
I'HOVINCIAL ELECTIONS r^
now appear,, that tS ^ ! '" ''"P""'!™' ; «"■! it
tlie treat on one at lea.t „rH """ ''"'<"''' "'
a tavern. ' ""* "="*''i™» "> ">« bar „t
«« 'tw'ct^vrt '"rr "■t"™ -^ --'»■■
c«, i,a po.,„,,e one/tr r eat „ ;,: l",t"'"» ',™-
ally to a laeetm.' of electors U Zt . '*'™" '"<^^'-
« («-. p. 20,U in ;lth I appfelT, eTt "l" f "",''"
was done in this case is not l„ . , °'' '"" "I'"'
«piHta„a.eanin ^nUlr ToCi;Tj'f ? ^"^•
done in tliis case would be in ,nv ^- ''** '^"^
provisionsof the sectiorbe/ond Ij," V ''?""^' *''^'
and intent. "^ ^" ^'^Sitnnate meaning
con'^Sirbrj^uU^^^^^^^^^ ^"« ' '^^ -^-tain.,
the respondent at vaH ot^ tZZ 7^ ^^ ^^^^^^^^ ^v
canvass, which occunipr„? 71^ ^^'^ ''*'"''«« ^^ ^is
ing day The respondlf ' . '' ^'^'^'^ ^^^^''^ ^^e poll-
si xteen'^yearsf XCdtt H ^'"''""'•:^»d has for the last
+K»+ -i • .; ^°""^*^" the business of a drovpr w„
ana that he ha. S:^^^ IT 'hlu^ ^f I-™*'
taverns in the course nf hi. i • treating at
by the evidenc^fXt n^er He T. T' ™^'^
he became a candidate hJT ^ ^^ «**tes that when
theRidinc. and went ni . "^"'^ Personally through
with the deetorrthat o %r'"^^"^''^ Places to me^et
treated; so^et^e; ft'nT r '''''^'"^ ^« ^''"^"-es
and the treattrt'! '.""^^ '^•^'■^ ^^*h him treated;
friends ; and "h! leatr " '^ '^^'^^ "^« ^^^ -*
happen to be p esent IsT f'^ '^ ^" "^« -'g^*
much less than wis hs hfbit ll' "*''^*' '^ '"^^ '' "-
not more he sayTthan one fifth ^ "T f ''^ '"^•"^■^^'
P-cally that^e treats— t^--:-"^
™g
1875.]
NORTH MIDDLESEX.
383
voters ; that he made no distinction as to whom lie treated ;
that he had taken legal ailvice ; tliat he meant to ohej-
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 eciuivalent 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 Hvfjhcs v. Marshall (2 C. & J.
118), to be in affirmance of the common law, inasnmch
as treating " in order to be elected " is only a species of
bribery. The same may be said, I think, of the Act of
18.54, for to bring a ca.se 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-
burn in the Wallingford case (I 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
:lHt
PBilVI.VCIAr. Et.ECTIO.Va
tui
I tliiiik that thu ivsDoiid.Mif ;,? i • , ,
t.va.lin,, upon -lan-^oZ , "V ' "T? T^'"' '"' '"''' '''^^
his .eat is th.....; Zm r^/ \ '-^^ hol.li„. tl.a,
••upt intent, an.l in j', i^^ ^ •' T '''^"'^ ^'•''' '^ ^"'-
"« lo nmko i6 Mly^ryJT Z ""■™P"^ '''""^■' »
In tht. r/.?/"^ '"r''°" "'"'«='"""■»>■ law."
M"»tio„ a, t„ wLat,!,, t . j^ f * tdT '"'°" ""
corrupt treatin.r J «„,! fi. ^^ ' ^"''* amount to
very Lful little vo k ' lo^i^r;,' '"Z^^'- ^'-^'^''^
tions," at page 21 I ,;„„; , "'^'^ '^'' ^^^^ «*' E'ec-
(1 O'M. & H. 19), Blackburl ' !" ^''' ^'"'"'^'^'^ ^«*
•with the object and inVn ' ff ^*^'''"P%' means
Legislature pCnl IrnttZf/^^t^^ ^'''^^' *^^'
(/^'•'A p. 105) the '^J:^^^-^ f' ^7>-'^ -
•Heans ' with a motive or intent^n 1 "'"^^ ^''"^'''^
or intention by means of it to pro-
1S7.).]
NOUTU MIDDLESEX.
3sr>
.luce an ort'oot upm, th.- d.-cti.,n.' I., tl„- Lhhfidd ca.nr
'p. 2.-)) VVilluM, J., suys ticuting is f..il,i,l,l,.„ ■ wl,rn..v..r it
is rcsortfl to for thu purpose of painpnin- people's ai.pe-
tite,s.an.l thorul.yin.Iucing voters either to vote oral. stain
from voting, otherwise than they wouM liave .lone if their
l-alates Im.l not heen tickle.l l.y eating an.l .Irinkin-r sup-
I.iie.l by can.li.lates.' An.l a-jain, that the treating „n,st
Ik.' .lone ' in order to inHuisnce voters ' (p. 20). And so in
the same reports in the 7\nnvorf/i case (p. HW)."
The Chief Justice als.)cite.l the C'amjy;v/,v,.sv(/A(V/p 100)
and the Wnllin,ifoM ease (//>»/. p. :,7), in'whieh it wassni-i
hy Blackl.urn. J., that "the intention of the Le-dsJature
in construing the wor.l 'corruptly,' was to make \i a .,ues-
tion of intention;" als.) the Bnalfm-d ,v^sv■ (IhuJ ,, ;}7)
where Martin. B., n.s to the meaning of ' corruptly " says •
"I am satisfie.1 it means a thing .lone with an eVil min.l
and mtenti.m,and unless there Lean evil nun.l or an evil
mtention accompanying the act, it is not ' corruptly '
.lone. • Corruptly " means an act .lone hy a n.an knowin-
that he IS doing what is wrong, an.l doing it with an evil
•'f^^' • • • Tl'i-'''^ I'lust be some evil motive in it
an.] it must be done in order to be elected."
Without .subscribing to every wor.l c.'.ntaine.l in the
passages .juoted, they contain, no doubt, upon the whole
a sound exposition of the law.
The e.xtent of the treating and the .luantity of drink
given .shoul.l also be taken into account. It vvas sai.l by
Wdks, 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 forbiilden by the
Act oi 1854, whenever resorted to with the corrupt intent
ot influe 'cing voters.
In tht .-eating in question there was the reverse of pro-
usion; there was not more but much less than the usual
lio,spitahty practised by the re.spondent, .so that there is
• eady no room for saj-ing that the respondent was actu-
ated by the intention of ingratiating himself with the
■fe.
sho
'•KOVI.VCUr, VA.KCriOSH.
[ad.
of i"tention. um.I o.:!;;!:^; :;';^;- "'"^" ^''^' 'i'-^i-
a matter of fact the evi.len',... t. T "'" '^""••^"'^''•'""K n.
-^•■"ti.m .loes oxist;;^r "'"'''"• '"^'«" "'"'"^
-"-. -. on what sc-a e a U. 'wT T '?""' '^^ ' '•""•"'
So Mr. Justice VVilles in , . r ?'^'"* '^ ^^«'^ •^'^•"•
'■» ti.e course of an elect on ,,'■'"'' «'"^'" ^" '^ ^'"t'-
f-tin, that elect. '.;;;;''' '"^^^ ^'- ««-t of .,..-
^-' ''a.l sai.nn a , .evi ,H ^1 7^'^" .^'^ -^P'-" what
P-ed ..that treat n"r: TlfT"^J['''' '^ ^^ -I'-
^ treating, if it ^tre r . !" ''^ "^ ^'*''' ^«"'^' '" ^
vote or notto V t 'aI Srr f" '"''"" '^ "'^ *^
■ «-- - not ^"Hicient to W H : :;:;Xr:; ^'" "'"^^
■^•on that the intention exisfeJ f /. ^^'^^ '*'"'-''"-
by - ,s.nall a .uanti; of ^or ' '"" '^ '"'^"'^ ^^^^
-pt::n::"i::;r::fr''t''^"'"f^^"«^---eo'--
tHecimnnstanct itwJchrttT ^ j'"^^-^ "*' '^y aH
the evidence led n,e to tl^ J , ""'"''?'• ^*" ^'^ *'"« ease
<'id what he did i o I ' ; 21 rV'"' *'^ "'^^'^-'-^
*-• .-d fellowship L^^^^'^"^:^' r^^tation
ence electors to vote fn- ' '^'5*^' > '^'"^ thereby to ir<lu.
common law but iinr>. ,. " '^ election at
evMenee, it „ 'e'l: » m'.eT'r"" °" °'' "-
was nothing wronir in ihl . , ^'^"''^"«'on- There
entmaki„/hi.cant:t ,l^ttiT r ^'^^ "^^P^"^'-
and he doe. not seem to hive abuse "the" "' *''"'"^'
"•eeting them by seekincr fn 1. ? occasions of so
Perin. their appe'titr^r^k triVotf" ''"T '' P^'"'
Ia;>; ..Lend that I must be a^rto . .? ^' ^"'^""^•
oe abie to see with reasonable
IN7.V
"pon this hml
ft'M not .|u„te.| in
"" (I (>M. ,<(: f{
•t the amount of
'>on tliu (nu'Mtio.,
con.si(|fii„g a,-,
't«'" "^' .'run 101,
nt it was (iorif '
w (11, 8;j), ,says
'''•' not intcml
ivun to a vottr
le efil'ct of r|,..
int'd Jiidye ill
explain w|,„t
not to be Niij,.
eer would not
Jce a man to
<ai(| waH tlmt
the conehi-
a man's vott:
i i?cr 5c a cor-
[t'd of by till
f in this caso
) respondent
a reputation
by to ir [In-
to thii > if
election at
tion of the
on. There
le respond-
at tavern.s,
iions of so
s by pani-
ue means,
•easonable
«AMT NOHTHIMMKHI ,.VI).
887
.•;-^i..t.thathH.asdom.thi.l.,...^
Th.. eav, made „f «„ attempt bv a l)r Saiir. * i •.
"^ *"^'' f'" the resp<mdent bv Hi..
.UM..ota.las.ofli,,„o.,nuIsu,,o„tlJevid^l'a^
tiu' cuse tor avoiding the election by reas<,n of I w
t-.,^ and partaMn« of li.p,or duHuK ri 1!^ ;;:r
..... tads b.v the absence of p..oof that ho was ^^^t^
the respondent. "KtuDot
r l.avo not found it nece.ssary to di.scnss the ou.stion of
.iifency m this case. as. in n.y view of it nnfl
'■1- it .'xcept in the ca.se of Dr. Sau t. '^' 'T.
■I" -t find the respondent respon.sib"! "'""' "^"^'^ '
-a^r:Jtorih'''''''t"'r''"^"'''''^'"*h^^
.:^i;:;ti;:^u;;:'*'"''''''"''^^'''^^^'"^^
(9 JoHrn,/ Le,jis. Amm., l,s7:.-(>, p. 2.1)
EAST NOHTHUMBERLAM).
BkfOHE Mh. Jl-.sTicE GWYXVE
Hkxhv 8. Casev, 7..^.^.,. , J,,,,, ^^^^^^ -; ^^^^^^^^
Hy the constitution of the Hefom. / ' '"•^'"''"■'" "'""'•''•
{•■■oniote tlR. election of tl e can.l^li ^''"'^'•'"t'on «a« actively*'to
rhe ■■espou.ieut ha.I himHelfU? « " vilT"'"'' V ^''^'^o-'vention.
tion, ami w,v.s familiar with ite ohiect?a,n %T'l- '' °^ t''«.««ooia-
a.s a aelegate acted and canvassed for othir .''""f.*|*»'"'."- . "e had also
"as responsible; and that ai anV'nTT .^" "S*"'^' f*"- ^hose acts he
;lole«ate to suoh •associath n an^f who !" ""'^ "T""^**'' •'^ °»<^ R a
for the respondent, avoide.l Z ell'um ''*'' "'"^ otherwise acted
388
PROVINCIAL ELECTIONS.
[a.d.
authority that W.. an i.ulepenS caJdE T'' " ?"" "ndoubtcl
himself was procuring his frienrto vote fo^'. •'««?■*'""«."; election
date. W. denied the truth of this report "PPosition can.li.
franchise of voters. "nertere with the free exercise of tlit,
Mr. D^Alton McCarthy, Q.C., for petitioner.
Ml. J. D. Armour, Q.G. for respondent.
ranf^MrT •''" T^''^''^^''"'^' ^^^b and Coch-
rane. Mr. Ferris was the nominee of fh^ R^f^ a
Men, and was the .,„cee.f„, ^iida . Yllt :r-
Wore the polling ,„„,e ,ette„ „, cireula,, w fe ,™ I
Jitferent leading men, stating that Ml- Webb anil,,
ent candidate, had despai^d of snccer.nd wante';;:
triends to vote for Mr. Cochranp f>,« n wanted his
aata M. Webb denie.uf;S:^J t'TsTe^r ^^"^'■
The mam points disposed of at the trial were ri) as fo
the agency of one Richmond, a delegate to the^Ref , '
A.s.sociat.on, and an act of bribery said fn 'n ,
njitted by hi,n whe.-eh.v it wal ^^nl "t ^sprd::-
;;^..ch .t „as sa,d was a frandulent device to inll„e„„
rs^'tite^::;-^^^^^^^^
manLe, ^^ ' «"'™"".'>°. ™ «» -pects and inthes.,,,.
hab,t of domg for that purpose; that the candidate
■'■«*kja».,J
1875.]
EAST NORTHUMBERLAND.
389
charges of cornn
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 dele<rate
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
canvassmg 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
niatters that are legal. That is precisely the authority
given to all election agents. No man appoints anothJr
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 (juestion then to be decided is : whether or not
Cyrus Richmond did make to Arthur Lyndon the offer of
890
PROVINCIAL ELECTIONS.
[A.D.
a bribe, which it i.s ehavcr^,} +), * i
learned Judge, a^; dil ^ 111^1 '""^T f^'"
*i, point, decided that an l^f „, Xtd°7 "" "
initted by Richmond „n,l .1! f ""^> ""' been com.
election void ; """ «'°""'' ''"o'^-^'l ««■
i-uing of that circula; we^ Ison !. '' n '' ''''
Richmond, who was himself ofe of , ^''"'"^'' ^^''^''
same reason be regarded a thp 7' !""'* *"'' ^'>^'
whom he must be^hl r^ Jb^^^^^^^
opinion that, even aasunungth matters. .'"""'■ "*'
circular to be false to the know I ofthe n . ' " '"
ifc.it does not con.e within the 72nd ^Tf '''"'"=
ms, which enacts .b«f < I ? ^^''- ''^ *^'^^ ^ct of
indirLctlv. lyZ^Tor b?'"^ t "'' ^'^" ^^^-^'^^o,.
Half. by^an/,r:!: tw:rof:o^r ^^'^^'^^■
prevent or otherwise interfere vTiththeT''- ""^^"'^'
to the present TherP fh ^^ ^ny resemblance
which. 5 it i::d bltri ;eT.:^ttt i -^^^ ^-^
would have been calculated to hJv the eft^crof "T1'
ing persons, without anv exercise of 7 ""'''''^•
their nmrk on the ballo^n^n ^*.J"'^g'»ent, to place
nan,e onl,. and t W r^allCt'^ T^^"^'^"^''^
l>y a trick and deception ^01^^" v T^' ^'''''''
at the time of votin. ', ,• , ^ 'Candidate for wlio.n
the case before „'' ^' "' "'^* •"*^"^' *« vote. I„
the «fcaten:!:n.n^ '^.xt b:r,'^ r\ '- ^---^^-^
of the parties i.ssuing it) 1^ tt^t ^ ^^^^^^^^^^^^^
appealing to the elepfn... f • -^ ^ talsehood
i I o "" uiie electors to everpi^u <•),..;. • i
voting for the friend nf f I '"'^^'^'■^'^ fc^eir judgment in
."tended to cove. «e, whe. ;^t::;th':;hirt^
^^«- fA.D
lie did make. [The
igfch the evidence or,
bery had been com-
ground declared the
Y, the i.s,suing of the
ing the polling ,Jay,
1 the parties to the
who, equally with
iliem, must for the
'ndent's agents, for
I am, how M'cr, of
■ters stated u\ tlie
the parties issuing
sec. of the Act of
lio shall directly or
person on his be-
ntrivance impede,
tree exercise of the
to have committed
in my judgment,
(2 O'M. & H. 60),
any resemblance
ined of was one
i intent imputeil,
effect of mislead-
idgment, to place
the respondent's
to make persons,
didate for whuin
2nd to \'ote. In
^aid is (assumino'
'O the knowledge
e_l\V a falsehood
eir judgment in
>g the circular.
the statute was
though 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 Jmmal Legis. Asscm., 1875-6, p. 17.)
LINCOLN.
Before Mr. Justice Gwynne.
8t. Catharines, mh to ^Jnd May, Sth to mh Jidy, and mh
tSeplembei; 1S75.
Before the Court of Appeal.
Toronto, mh Dm-Tuber, 1875, 3Ud January, 1876.
JoH.v Charles Rykert, Pditioncr, v. Sylvester Neelon,
Respondent.
Treatini/hi a tawrndurln;i polUmj hours— Pmaltie^ on tavern-keeper and
purchas-r-Bnbery by responded in compensatimj for an injur)/ to a
-J*,"""f'~ '* knoiBledije by candidate ofayeiU's acts ofbnuery
One L., an alleged agent of the respondent, went into the tavern of one D
(lunng polling hours on polling day, and purchased spirituous liquor!
with which he treated himself and several persons tliere present.
IMd, per Gwynne, J. , that the penalties provided by s. 66 of the Election
Law 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
tliat the treating by L. was not a corrupt practice.
Per Draper, C. J. A.—l. That section 66 of the Election Law of 1868
must be construed distributively.
•I 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
Qunng the prescribed time.
3. That under the second part of the section, the percons 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 tlie hor.,es of the respondent, and in 1872 the respondent gave
h. compensation for the injury partly by cancelling a debt and partly
in casli, for which S signed a receipt "in full of all accounts anil
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.
letter, which shp H?!^**^' ^'^ ^J"'^'' she rep e 1 «h * *''« '5«Pon.lcnt
...4.,, i„m ,,g
8howe,l that an imlirect'offpl'*'^""'"* ^"'!/""e, J.), That tl,P « • i
At a lat I ® ''^"
fondlnl7etTJtJZ S'l'^ f''-^ «'«««on ^ome agents of th.
^;o, this act of hi/aS.' "" ""^'''''^-^'^ ''"-W o?S":='o^„S
The petition contained the usual oh.
practices, and claimed the seat fH T' "* '"^"'"P*
successful candidate. " *''" Petitioner, the un-
tiof r."^ ^- ""^'^^^ ^''' '^- P^^^tioner in person for peti-
^r. J. G. Currie aU Mr. BetJu.^ for respondent
ou^t^:c.r;rL:^^^*tr^^^^^^^-^-
that one Patrick Larkin. aTaLe^l^^^^^^^^^ ^'" ^''''^
ent, went into the tavern nf ! "^ F ""^ ^^^^ ^'espontl-
pollinghoursonthepl" i ' .?'' '^ ^^^^«^^ '^"^ing
there present. (^ouL 2 2''"^*'"'^*"' '^•^"^^^^ P---
this treating duringpotith ^^ ''^'"^^ ^^^^^^^^^^ that
of the Election Law oUsfif a^ "^'^^ ^^^^^'^ of s. 66
(earned Judge held it wlf^ra^^^^^^^^^^^^^^ /^^^
judgment on that point not hpl ^ f ''*''^' ^"'^ ^'«
tioner. is given as foCs '''^ ^^ *^^ ^''''
1875.]
LINCOLN.
393
n person for peti-
GWYNNE, J. [After stating the facts and quoting the
6()th section of the Election Law of 1868, proceedeff:]
1 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
(luestion, 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 ol"
which the prescribed penalty is attached.
The prime object of the Act, there cau be no doubt, was
to sec^ire 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 airectly, for the express purpose of obtaining
a vote, or after a vote was given, in pursuance of a pro-
raise 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.
1'
K:^
394
PROVmciAL ELECTIOXS.
[A.D.
and the pavino- nv ,...•• ^■^•'
;h eh the parties pJal^^n^T^Z ut '' ^"^"^^-' '"-
an. whach ,„ight injurious]: atfetth f T^'"^'^ P^^ ^
■ oi the election, and from whTr . f r^^"'" ^»^' PuHty
other breaches of the peTcellt ^^ ''"^''^"^ '^^^ ^n
election should be uninfluenced r^, """^ '^^' *''^'
the use of spirituous liquorrat a^/7,r"''^ ^''''''S f'-"'"
Po"m. day, this section was L ^^ "'' ^'"^^^ •^"ri„.,
"every hotel, tavern an^l ropTnttT'' ''"^ '"^^^ ^'^^
-en ed li.juors are ordinav K.^o^S inVP'"'"*^"'^ «'' ^--
the day appointed for pollin^Tn A I "" '^"'^^ ^'""»«-
ties, that no spirituous'o "fn^ted T^' ^-""-eipali!
•>^- g;ven to any person with ^tt P I""''' ''^^" ^'^ ««'d
-Pahty under a penalty o.^O '^ ^"^^ '"""i-
That ,s to say, in ever/ca iTwr T'''^ ^"^^^ «^^-"
tavern, or shop-keeper shall In 'T /''' ^"^ '^"^h hotel
-"o.give such spfritufu! il":'''"f •'' ^'^'^ «-*'-
«uch to be sold or given unon K ""' '^"''^'' ^^ Pe"nit
But assuunnc thtr^^T '' P^-^'^i^es. ^
t-ating. which\ ai l^u'^r^Vr-tion, still the
tion of the Act of 1868 I ''"'''''^ °*' the 66th sec
hotel-keeper, within hVX: f ^ ''''' ^'^^'^'- t^l
of which McClelland. Cellfa^HTTf ^^^^^ the drinks,
undoubtedly guilty of a vio atitn J ' ^''''^^- ^^^^^^ ^^
prosecution liable to its p nat It 'f'"'"' '"^' "?«»
that the act of selling by Dovle^« ' "'"^.'^^ ^^«« admitted
t-n, is, under the pr^visiS' ^L'? 1"^'"° ^'' *^« -
«ap. 2. a statutory corrunf ! ! * '""*'«» «f 36 Vie
though the act /asTve Lr'"Tf f '^ ^«3^^^' ^ l'
have,and although i., had notTn Tf ''' '^ ^"^ '-^ to
"Pon the election, and that mor 'T^ '^^^^ ^^atever
^oyle, upon his being ^::erdlS^^^^^^ 'V ^^^^
aoainst and found guilty
1875.]
LINCOLN.
895
under the provisions of the 49th section of the Act of
1«71, w,ll be rendere.1 incapable for a period of eiffht
years o bemg e ected to and of sitting in the Legislative
A.ssen.bly, and oi being registered as a voter, and of votin.
at any election, and of holding any office at the nomination
ot the Crown, or of the Lieutenant-Governor, in Ontario, or
any municipal office. Still two questions remain : First! v
.s Larkin also guilty of a violation of the .same 66th se^ -
t.on within the meaning of that section ? And secondly
assuming him to be, and that he was an agent of th^
respondent IS the latter's election thereby avoided ^ The
answer to the iirst of these questions depends upon the
and to the latter upon the construction to be put upon the
.^r section the Act of 187-1 The 66th section undoubt!
ed y 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-
km, as the person treating McClelland. Lavelle. and Todd
may be sa,d to be the giver to them of the drinks which
th°al th T ''' "'"' '-'''''^ P^"^' '^"^ it is contended
that the .section is pointed against the hotel, tavern or
shop-keeper and that it is upon him that the penalty i
Imposed, and that where a tavern-keeper sellsaglas. o
dunk. It wlnle A. pays for it. there is but one act done
ui violation of the statute, but one offence committed
:n:iti::rtf '^^ *'^ tavem-keepei, and that to
andte T" rT'''"^' '^' «"^ ^'^^'^^^ ^he .seller
and the other against the treater, for one and the same
wh^h Lavelle drank, was sold only for the purpose of
being drunk by him, although Larkin paid for it For
eti! \ir t: y^ '' ^""^^ «*• ' violation of th
section, and for that glass, for the sale of which Doyle is
responsible and liable to be disfranchised for eight yar
^ible and be subjected to the like penal consequences as
I' £'
.4
f i
Sdfl
PROVINCIAL ELECTIONS. r
given within the meaning of the Act ,,.,.,...1,. .
pays the price instead of Lavell So ^ 'u'T '"'
•censed to soil H.uors sells a clL o tiL t^A '"T"
■nake the shopkeeper liab^ CZl^^'^'Z^^r
iMsnotais;i:::i^:^i~:,^^^;^-ciH^^^
a pomt which would n.ore satisLto,% L mi'ed u. '
prosecution for the penalty under the statute ^7 "
there seems to be rrreat fo,t. in I ^ *^''"*^''*^
view be, ., i. .eelfr^ r^' K. 'tZlTTT " ''" '""
alone to point .gainst hotel tat™ LTsZT'"'
upon wl,„,e premise, spiritu™, 1 , 1" f nd dnlT'*''
o.-Jinaiily sold, and ivho have it in tV ' ""'
what is done the,., then the;'„ri"s s ir™v«°°r'°:
be Innited to the hotp) fn^o^r, i ^ " '""'^^
mean sold org venb'liimtr' *?■.'"''?'■• -"J ".mt
to prevent the Ziblivrfth .*'™ '■'*'"« "'*''
W the ^naU^eS^llttCi^rrntr:''
detence that he did not sell, but himselCe "L d' i L'
That th,s ,s the true construction seems t„„,.t
be-ing JnX're til rl'sS^ :*"'; »'""■
66th section of the Act of 8fiS TT1"'"^'''S with the
as it should be on <^,S f'^. ^'^' ^^ ^^e same manner
.i*„uso..t:rt:Xo::i.fSsXrh;:^^
1875.]
LINCOLN.
397
given during the .said period under a penalty of 3100
against the keeper thereof if he nej^lects to clase it, an.l
under a like penalty if he selLs or gives any .spirituous or
feri..rinted liquors or drink.s as aforesaid."
What was meant by the ^'ords in this section, " in the
same manner as it should be on Sunday durin-r 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 clo.se.l 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 ; Ibid. c. 22, s. 5 • Con'
Stats. U. C.,c. 54, s. 264; Imp. Stats. .'} George IV c
77; 9 George IV., c. til; 11 and 12 Victoria, c. 49- and
proceeded:] But none of those statutes which have re-
terence 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 Le<^i.sla-
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
atoresaid.
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 tennented 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
898
I'ROVINCUL ELECTIONS.
[a.d
hotel, tavc,-,,, .„. «ho„ r w K '""'" "'' ''""'" »' 'V
u-l in the Act „f ,«o,s „," „ It v- *'"'"'•
'-.v.,y ,„„i„„ ^ i„di;.t «:/!.. ,:-;i:f- «•-;■;'«
w-» wel, «.,Sj ";:':;"™ ;' «'>';;«on, an,, w,,,,
an<I violation of „o„,, orde ? , ,''""' "' ">« P™»
-tion wa, taken, to nlntta^^'slT iu,''''.!'' '' *^
observed that in all th. nk '' ^"'"^^^^ *» be
any reference to th wo Js ?? '''*"!" '" ^^^'^ ' «"<'
-iee;-anae.p:L^;::^,^-^^^'^-^^i^^^^
^^=r;e:r:r-^'r--"^^^
-Icl. and who as u h ableT "" t"'^ ""^ '^"'"-'•^Iv
hiH own pre.„ises fh„V . '""^'"'^^ "'^'^^ '« J«n« «n
fixeiiiises, that is made mnUv m' u h-
upon whom the penaltv fo, 1 ■, ^^'"^ ^^^'^^^^ ^"'1
is imposed. * ^ ^''' ^'^^ ^'°^^*i«» «*' the statutes
in this respect 1 sue ^^Lt i^ ' ^"^ ^"^^^^ ^^^^
person who can he n-n ? ' "^' "P'"'«"' the only
of the statura^utjrr h*: '' '1^' ^' ^ ^^«^^*-
poses, and consequently he s 1 7 ''" "'"'' ^* """
terms of .section^ of the At f m, '™k "'°' ^" ^'^^
guilty of the corrnnf ^ .^''^ ""] ^^^^' «an be .said to be
a vioktion of th 66thT ;" ""l']! *'^' ^^*"*« d-'^-
polling, hours, to be ' '" '' ''^ ^^^ «^ 1«««' -ithin
-^lst;2Se H '^f • ^"' ^""^-^ - -^^ a
of election, which wa 1 ^^ '""^^ ^"' '"'^^^'"
against; ancHhe Lell . '"'^ '''*'"^'^ *« ^e guarded
that object s^fficientfrlt""' T.""' '''""'^' ^^-d-"-'
of the hotel taverf o^ u^^ ""^^'"^ *^« Proprietor
' *^'^''"' ""' «'^«P ^here the spirituous liquors
^^A»Ajiii»ij,i,
187.).]
LINCOLN.
m{)
are ordinarily .sold, an.sweral.le for wluit I.t- i-enuits tu he
done in violation of the Act.
Bat assuming in tl.e ca.ses put of the treat at the hotel
ami tl.e purcha.se of the .hm-n of wine at a shop, that not
only the seller i,s liable, hut also the person who pays the
price, and a.s.suuung the latter to he an agent for pro-
moting the election of a candidate, will the can.li.late if
elected, forfeit hi.s seat by r.;a.son of such act within the
meaning of the 3rd section of the Act of iHT.i the first
.siih-section of which enacts that " when it is foun.l upon
the report of a Judge upon an election petition, that any
corrupt practice has been conunitte.l by any can.lidate at
an election, or by his agent, whether with or without the
actual knowledge and consent of such candi.late. his elec-
tion, if he has been elected, shall be void." If a person
who is a candidate choose to appoint as his agent a hotel
or tav,.rn-keeper who ha, an independent interest of his
own m violating the statute, and who,se violati.m of i*
may, as it certainly might, lead to violence en-lan-^eri,,.^
the freedom of the election, it would be plainly proper
that a candidate who appoints such a i;er,son as his a^nt
should have his election avoided, if his agent .should .so
conduct hiuLselt 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 An.l it
was because it was ^vell calculated to do so that the section
prohibiting such practices, and that pronouncing them to
te corrupt, were passed. But it seems to be cpiite another
lung where an agent, not him.self a tavern-keeper, and
"Mng in need of refreshment, goes to a tavern, and for
that purpo.se buys there a glass of beer. wine, or other
u,uor for him.self. and at the same time treats a frien.l or
wo to a glass as he would on any other occa.sion, such
neat having no reference whatever to the election, and,
It may be, being given to a person not an electo.-in such
ca,se although the tavern-keeper who .sells the liquor
would undoubtedly be guilty of a violation of the 6«th
400
PROVINCIAL ELECTIONH.
[a.d.
> 'fl
Nection of the Act of iHiiH, ft,„l so of th,- .faf„f
;;Pt Praeti. .K-elare., hy th. Aet'of' . r J.::
...u,.h tl... a,^.„t ,nay also be in like.„anne.-,J y
tlu. uuKKr,.t pnnnpal in such case have hiHcL
avoided by .such tieat ^ '''^^""'
The Legislature, no <Ioubt, n,av arbitrarily enact f 1, ,
a..y act, even one in which the candidate is in T
- .cerned. and which is not done i„ his actual o"sI,:
interest or in pursuit of the obiect of th., i / 'J"'"'
no.vithstandin, avoid the ele^^.'t:^:;^:'!::^
•» the n.ost express words conveying such an int!
.^l.ou d avoid a construction having stch le?. "'^"' '"'
What the Legislature has sai.l upon the subject is co„
tanked now m the .'h-d section of the Act of iHTi wl i 1
conta.ns two sub-sections that must be read to^ J t
so as to be consistent with each other. The obi '1
effect of that section was plainly as it at)ne!. .
repeal wholly the «9th secUon 7'Z ItTl'oH ::' '
.ad been in .^ec, though not in tent r: e ^ 'by 't',:
Act ot 1871 had enacterl that, where it is found by th.
Zttat ^'^^'^"''^'^-P-- «'-tion petition der
that any corrupt practice has been connnitted by
Mth the knowledge and consent of any candidate at an
election his election, if he has been elected, sh Ibe vo
a.ul he shall during the eight years next, after the a r f
h-s being so found guilty, be "incapable of bein" !
to. an,l ot sitting in the Legislative Assembly' ^
I.en,g registered as a voter and voting at any election n
o '„f ;"^'!">:«♦«- -t the nomination of the Cr
iplioLt:-"^^'"'^"^^^^^^^^^^ '^ ^"^-- - -^-■
Diiorln^ti* ^''^^?' 'T.'^''" ^'^'^ ""''^^ this section.
P .or to the passing ot the Act of 1873, that a corrupt
prac ice committed by any person should avoid a can-
duates election and subject him to disqualification for
eight, years, if committed with his knowledge and con-
1875.]
LINCOLN.
401
arily enact tluit
ie is in no wny
tual or.supp.is,.,]
le flection, iniiv
in tlio alisciKv
h an intent, Wf
ftect.
I Mubject is cnii-
<jf i«7:i whifi,
tl together, aii.l
'he object hip I
pears to iiie, u,
jf IHiiH, wliicli
jpealed by the
stitute a clause
section of the
found by tlif
on under the
iniiitted by or
didate at any
shall be void,
er the date (jf
being elecU'il
nbly, and nf
election, umi
' the Crown,
or any uiu-
this section,
it a corrupt
.void a can-
ification for
Ige and con-
sent, for the only practices which were corrupt within
th*. provisions of the Act of 18()«, or the con.n.on law
..t Parliunient. weie such as were .lirectly or indirectly
.lone by the candidate himself, or by ,so,ne perscm in his
iK-half, with a view to the promotion of his election • but
whether or not there could have been any corrupt prac-
tice committe.l by any one, other than the candidate him-
Htlf or his agent, to which this 4(ith .section .jf the Act
(.f 1M71 coul.l be applied, it is unnece.s.sary to inquire for
dmt section is rep.'uled by the Hrd section of the Act of
im, the 1st sub-section of which very distinctly, to my
mmd, expresses and declares all the cases in which an
election .shall be avoided, namely, in the cases only oi
corrupt practices committed by the candidate him.self or
l.y his agent at the election, while the 2nd sub-section
declares that in a.ldition to the avoidance so declared by
the Hist sub-section, dLscpialiHcation .shall also ensue when
the corrupt act whieh so avoids the election is done by or
with the knowle<lge and consent of the candidate, that is
where it is done by hinuself personally or by his u-rent'
with his knowledge and con.sent, for unless done by him-
self .n- his agents, the election is not avoided at all" The
second sub-section carefully abstains from .savin.' that
any corrupt practice committed by or with the actual
knowleflge and consent of any can.lidate shall avoid the
election, as the 40th .secti.m of the Act of l,S7l ha.l done •
It simply annexes to the avoidance of the election, which'
the first sub-section regulates and .leclares, dis<jualiHcati.»n
it the act avoiding the election (which can only be the
act of the eandi.late or his agent) be .lone with his know-
ledge and con.sent; 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
hy hiuKself 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.
avoidance. "*^ '" addition to tli,.
-t» of an agent ,vithi:rh „e „,t TT'' "'"" ""' ""•
action, "ooinmitlotl l,v,nv Zr^^l "" "■•"''» '" «"■
;■;» «.™e .•• The «.;^:i::;! : r;„" t;r',T "■'
the category of cornmf ^,.c, r ., ''^ ^'^'^'' t"
section of 1,. ZT f^^''^^ :!^!f^^ ^f the .,,,
judgment, be committed only a" I hit '" '^'1" "'^
keeper of the hotel tavern nu '*'''' ^^" 'he
%uors or drinks a e ordC-j" 1?^ "^"" '^J^'"*'"-
of the section may be cJnS, h ' "' '^"''^ ^•''^^^^■■-
agent of the candklate' " ^ ^ ^^^''^^ ^'^ - a„
reference whatever to fK ^ ^""^'" ^^ to hare no
wM... *he a^en^rr, taS-tLi: I'T ""■^' '''"
no possible way to be canabl.. .f "^''"'''" ^' '"
ever on the election as for !v ^'^"^ T'' '^'''' ^^''^t-
and a friend find iUhsolIrr ' "'"'■^^ -"^idate
freshinent of dinner at n S aXl 'r ^^'^ ^^^^^ ^■^-
ot their usual reasonable oulntitv /?''"""'" ^^^'•^^'<''
'»ay be one or two ..la.se. 'V '''' "" ^^'"'e-it
as part of the dinTeirn^^r^ '^ "" '^"^^'-^-P-
templated not only avo^i . . ! *''V* " '''''''''^'■^' -'-
also of disqualifying. W.ri^'r,?"'"''^'^ ^^'^^^•«"- '-■^
ting> for the sake oVa "u 17 ^7^' '^---e (admit-
the rigid terms of the l^^^iJ^l^^^'^'-'T''^'^^' ''''''^
'^^ violation) the candidate pa o;i^^o\;%" ^f*^ ^
«o supplied, or paid for what w. , f refreshments
and was, so far as sue' ac c >n T '?'' ''^' '" '"'^ *''«"''.
party to the violation of ^eTf I "t ""' ' ^'^"'^'^"^-^
0"6th section <loes no^sa w J^' "" ^-tel-keeper The
a hotel-keeper or other ne, Y ^'''"" consenting to
■shall himseff be g:^ ^ ^ HilLr^'V"^ '''' '^'^^'^'
that, to my mind, it would I^r '* '' ^ '""'^^ ^av
1875.]
LINCOLN.
403
m my judgment, of enacting laws of the most penal char-
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 cliaracter of those penalties here referred
to-can be imposed. Every Act of Parliament should be
so construed as to be consistent with counnon 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 bv
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 cours.^
or exercise of the agency, amf in the pursuit of the
object of the agency-acts done as specified in the 67th
.section of the Act of 1N(J8, directly or indirectlv 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 agencv. Sucli acts are
It IS true, the acts of the person who is agent, but they
are not tlie acts of the agent qm agent. In some cases a
c^uestion may sometimes arise wJiether or not the act of
the agent, wliich is relied upon as avoi.ling the election
was doneby him qua agent, that is to say, in the pursuit
ot tlie 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-
hcation 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 qim
I
404
PROVINCIAL ELECTIONS.
[a.d.
agent, is not an act which can. in my opinion be vviH.
the meamng of the 3rd section of th^ Act of I873 "
1 am of opinion, therefore, for all of thf. «].
the Mft section „, the Act of m^^^ tl Ctw .' I'" "'
rapt practice within the „,ea„i„„ot the l7l! r /',""
Act of 1873, and i, liable t„ V,! T '"' °' ""
that section to al cotell/o^t^™'^^^ ""*'
corrupt pmctice. """« """"uillcd a
The learned Judt^e havmo- «« j-u j.i
^tf™^/::isH?^F-ts:
:-^.acticcs,thcre:ir:^:;-rte^^^^^^^
(thtf*ru*?Cittr*- '- *» ""■«"-
Jlf-. ^ 4. ..«&. for the respondent (the petitic.er).
Jhir;*^st,^;;;ot' .-"'ST «'™" '- "■» ^^'-'
evidence of cor™pt P^^ices't ^^irrnSt'
-t^T;rett'tr:rcS:H::'er™.'H:°T
jnent was that the n,sponde„t was not^ e Jed- it
the election was void "by reason of „„ ™'='o<'-'«
committed by himself neZ„X f °°""P' P^''^
:^;rrob-~^^^^^^^
the greTt , part of tbr"'™°f '" ''™'""8 "■"* '-'
1875.]
LINCOLN.
40a
ne for the appellant
that the manner in which many of the witnesses ^ave
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 e.xpected to be able to place matters in a clear licrht—
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 pa.ssed upon no
inconsiderable portion of the testimony; and severe as the
comment undoubtedly is which the learned Judo-e 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, Ijut there
was no way of spending it, the law was so strict " On the
Sunday evening (Mr. James S. Norris is the witness) some
parties met at Mr. John W. King's house, at St. Catha-
rmes, 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 beinc
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
■hoe
i ;"|
-i;.
PROVINCIAL ELECTIONS.
[a.d,
. and with hi.„ .vent tl tZ^]^""^ ^^^ pos.nast,,
the acts of some one or other TZ' '"^''''""^ ^^ *°
a« against them to sustain the ol." '! '^"'^'^ ^"^^^'-•"t
Whether the evidence on a . T*"' '^ '^"^ng voters,
ease, will bring the TspLl Th"''"'^ ^' *'^^ -^^'^^
««- 2, see. 3. of 36 ViJ^ c o o "" *^^ ^^"P^ »*" ^»'>
practice committed bv and with i?- *^'' 8™""^' «*" corrupt
consent, is a question "Ih'wi ,",?"' '^"^^^^^'^^ -' 1
• S:?u;ir ^ '''- -- ^- ^rrr r :^
*^^^^?^^:^^::s"^'!-/---tave^^^
were drank in the tavern' c'uf Z """^^ '"^"'^'"'^ -^'■^''
tHe «Oth .sec. of the Act o^Cj:'^'ZT' ''
The section is placed in n i- • • P" ^'
''keeping the poLe lr:oo7:? ^?^« '^^-^"^e heade,,
thus worded: "Every hotel J'"* '^^''''^""■<' ^"^1 is
spirituous or fern.ented linlr'"^ '"^' '^^'^ '"^ ^^'"^'^
fold, shall be closed du LX df '"""^^ "'^ ^-'--'iiv
-the wards and mun cL i ' "^ ^Pfointed for pollin,
hel^i ; and no spirituou 1 f "" '"'^"'^^ '^'^ Polls ar^
shall be sold or Uen : a V^rT' /^'^'''^ ^^ ^'^^^
such numicipality durin. the sal T f '" ''^^ ^"'"*^ '^^
of 8100 in every such else/ ^ '°''' ""''^^' ^ P^^'-ilty
The law previously in forc*^ in fj u
?n the .same subject was : <Everv hof Tf " '' ^^^''^^
'" which spirituous Ihmors arlL '/^'''™ ^°^ ^'^''P
closed during the two'd"' "ZnlT^ ''''' '^^^^ ^^^
wards or municipalities in'lhfch he" T ^^'""^ ^" "'^^
same manner as it should be on ^^f ''''■' ^^^^•^' ^» ^he
service, and no spirituous or fern, T^7 ''"""^ ^«^hie
shall be sold or given durl! 2" , "'^""'^ ^^ ^^""^^
penalty of SlOO a|ainst the kip' T ^T.'' ""^^^ ^
to close it. and under a like nen!u ' ?* '^ ^^ "'^S^^ets
any spirituous or Wented 1^^ as " ""^ "' «"^-«
"*i^ IS as aforesaid."
1875.]
LINCOLN.
407
It IS, as I understand, contended that the ehan-re of
language in the latter Act, omitting the special limitation
ot the penalty to "the keeper thereof," makes no differ-
ence m 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, whicli'
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 ^ivin.^
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 att^^n-
tion strictly to the language of the section, I think the pro-
position untenable.
: 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
full stop after the word "closed," and it may be so- but
read thp whole together, without pause, or even with a
comma after "closed," and give legitimate effect to the
closing words, " under a penalty of SlOO in every such case "
and the objection disappears. In every case in whicli
the preceding enactments are violated a penalty is in-
flicted, as well when the house is not kept closed as when
a glass of wine, or of sp'---, 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 Crcjm v. Burden, Cowp
040, has never been que.stioned ; it has been frequently
recognized, and was the unanimous judgment of the
Court of King's Bench, delivered by Lord Mansfield.
Ihe point decided was that where a statute imposed 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.
rA.D,
prohibitory—" No fr«,I. ^ ^"^''^^ ^cfc it is
on the Lord's day and tlT.T u* ""''""'J' >»"i"S
clay, hour, o,. mfnute i t ■„:' r' '"^ "^«»"f'
longer or shorteHn pen rf dl^ ' °f "■"■■ "'''«'«'
consist of one or a nmnL r ?"' ""'' ™ "h^'lierit
cse the act IZl^i'Z ^ P^'™" »*" I" «».
calling by semn/hrr: ,, ofZarrj '"T"™''
in which the ordinnr.. „oir ^** ^*« *he mode
hot rolls wltr;S't"el r/---J- Tl-c -Hins
nary calline was ?'„""'• *'= o^'c'se of the ordi!
stopM short aTco.lalrthr,^"'^'™''''™ »»'
kept closed thev h^T^^ u f "■" '''™'" *<"'1J 1*
a character whieh falls diritly w tht th^l ," °'
W on the «.„,e day ; the second t h ^ r"" '"' °""""'-
.nay te repeated aga^:! and t^" n 'S o:':' «'' »'""■
prItLtyS-yf tp f*r-.;» ■"* a c„rn,p.
oecnrs "dnrinc the TI' ''.P™™!*"! such violation
-onfora^i^e^L Te^rr;:: "f"' '"'
1st section of 36 Vic canT- f ^'^''on and the
for ,on,e canse penaCare iL"pUZt™"'^ Y^
any v blation of it^ r...^ • • ""P°««^ oj ihe one for
^o/pollin,; ^uulCrretfe t!^^ ^^^^^"^^
practices, they must take place "drnLT!''' '''™P*
ed for polling." With thf/ . ^ ^^ '^"'"^ ^PP^^n*-
g. With that exception, the offences remain
'^^•'^«- fA.D.
iory, ordering that the
n the English Act it is
'ther person shall do or
1 or work of their orrji-
In Lord Mansfield's
'g his ordinary calling
lout any fraction of a
ntire offence, whether
ion, and so whether it
^icular acts." In that
:ercising his ordinary
That was the mode
cercised. The selling
'xercise of the ordi^
Legislature have not
he tavern should bo
5d two other distinct
&c. The first is of
liin the principle of
nee can be conimit-
■ bidding acts which
'h or to different in-
e imposed the pen-
keeper of the hotel,
2an incur a penalty
: the day appointed
is made a corrupt
led such violation
:or polling." The
:h section and the
^ery obvious; but
by the one for
the daij appointed
-violations corrupt
'he Ao?«rsappoint-
e offences remain
1875.]
LINCOLN.
409
a.s defined in the 66th section, and for the purpose of im-
posing the penalty *here 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 looking 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 wards 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
;l"|;-,|
410
PROVINCIAL ELECTIOXS.
[a.d
guilty with the former if he .rives ih,. i; .,
by hi.n to persons in the tavern ' '" P"'"^''"'
That Larkin was an active agent of respon.lent is surti
ciently proved, and in u,v view of the law he wl lu^^
oi a corrupt practice in treating at Dovle's The If
Judge after a very elaborate c^oasiderat n of the sTZ'
eTltnlfV"" ^^' '''' ''''^'''- «^« '^-^ 1-id up t
eight months in consequence. At that f i.n» tif T
indebted to the respoilent, J^!tt^^Z^Z
m the respondent's mill book. Mr J W K,r .,
account of the matter: " Mr. Stel' ill t TeXi^^
It was an act of charity to pay him what we did I
two years since we paid him, whatever it was It w
given as a little present on account of the afflLt on " A
on the 2:3rd November, 1872, Stewart sil^cl^frcd
jnusence of J. W. King as follows: "Receivi; S.S
Neelon the sum of fifty-four dollars and sixty-six cnts
m full ot all accounts or claims whatsoever."^ Abou a
re'Lw I ^^""^"^ "^" ""^^^ consideraUon h
respondent having apparently heard that Stewart or his
h" TtoiTh 'f ' ""* '^'^ ■^^^^■^'"^'^' ^^«*™- *« -
respondent w!5' " '"""'' ^^*"'^^-^'- ^^^^ "^^ «»»k
lespondent had done her justice. After the election slu-
gTe wVr ''rtrfT' '""'''^ tol^iher hXo
give hei $30, and asked if that would satisfv her Credit
ZnTstz '^Tf °" ^'^^^-""* agisrste'::;
Ton But Zf ^'It ^"' ^" ''^'^' by respondent's direc-
tion. But before this payment, and also about a week
the^n^r^^^^^^^^ ''^T^ ^"'*^^^ respondent mlt a
g to otewarts account, respondent said to him.
t ■ ■ ,i
]875.]
LINCOLN.
411
' 1 wouUl like to have you with niu at the election."
Stewart replied he could not very well be with him he-
cause he, respondent, did not give what Stewart thouf,'ht
were the damages due to his wife. That he told respond-
ent he had not done him justice, and that respondent saiil
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. Dan' j1 Stanley
was sitting with Stewart at the time, and sa^ s respondent
asked Stewart if he was going to do an} thing for him ;
that Stewart said, " No, sir, I cannot." Respondent asked,
" Why i'" 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 convei'sation distinctly — he could not help hearing it
particularly, and did not think there was anything \vrong
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 s&y, " 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 about voting, and what I had to say,
and if you do what is right, he can use his own pleasure
41S
PROVINCIAL ELECTIONS.
[a.d.
1^7;,, no day state.l. Stewart says he went to thr ' ,'
about dusk with the letter, and gave it o a Jn w,
attends at the null. He saw King and Sister on a '
asked Mr King it he had seen the letter, and he sai 1
-erandpl^rl^r^S-:^--
e.pondent who ^ave him S30--not all in cash H
bin? ' '" '*^^'^- ' ^"^^ ^* *^« """' - 'gave tt
etre t^ TT '^"*^"^" ">^« *^^* '^bout'a w^t
before the election, respondent sent him to see A^ ■
Justice-he hd not say respondent taould do justice • hi
was not authorized to say anything of the kind mJ
.Stewart told him she would wHteafetter It wasat!"
own dictation th.o she wrote the letter stati g wL ,
claim was, and Sisterson said. " That will be juftis i r
him (Stewart) o understand I would not give him am
t gowi h me n the election. I ased no'such ll^u
will rju're. "*';:-'^^^ ''^"^^' ' -^" ^-* C
Sh ' ^^f/ i I*""* '^"'^" '^^ right, I would make it
mn and afkTd •nlt^'^ "T"' "^^^^^^ ^^^ *« *'-
I aid no R r*^ f'''^'^ " ^^"^^ ^^« had left there.
1 said no. He went out and made inquiry of Kin. or
Siate son, and they came in with the letter, which wl
found in a pigeon hole in my desk. I openedtleti:
tion— hp f1r.o« r.r.i. ■ ^"""^""^ ®rrs m his representa-
notWn. of Th^s 7'" V^'''' words-thathe knew
nothing of this letter until after the election. He had
1875.]
LINCOLN.
413
heard of Mrs. Stewart's diHsntisfaction, and before the
election he .sent Sisterson to her; she told him she would
write, antl his statement clearly indicates he was present
when she dictated the letter ; hi.s remark, " that will bo
just as well," clearly indicates that he knew of its con-
tents, makes it at least highly probable tliat .she had
expressed her 'Mews to him, which, Vjut for the letter, he
would have communicated to respondent. Sent for the
e.xpress purpose of asking Mrs. Stewart "'what was the
matter with her," Sisterson must, on his return, have
^'iven .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, • rhen 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 tile, 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 as,sume
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
sati.stied Mrs. Stewart would not influence hira 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
'•H«)VmcfAr, ELECTIONS.
fA.D
>vhat is ri^rht. ho can us. his own nl . ' '
---t doubt that, whatov::;:r"''""^ '■'•" '
'•V .-ospondont. the conversation!/ ' """" ^'•'"''^ "-'
-'at.l to the oloetionarts^r';, '''"•«"•• «^-va,.,
;StewartVstato„uM.tthatl! no ,,e^; •'■ r T*^'' «*"•' ^•"»
like to have you with „L Jh T ^*'*^ *" ''"»• " ^ "'""M
toall that ^olloweltZ *n::^T'T" '^ "'^' ^^■>'-"'''
was not .li..eotly nu.tiori "'T,: 7' ''' ^ ""^^'^ '"'^ vot„
and th. subsequent iettelntS T ^"""'^'"^ ^^'"^"^ ^
in tl,is conchrsion ^ '^''^""''"^ «""«"" i.i^
or valuable consideration"^'.!, t St"'"; r*' ''' ""^"^•'
to vote for respondent at to,.: I / '"'^""' ''""
fore agree in the jud-nnen tthr f i' "' '"^' ^ *'^''''-
reason of this corrupt nrlnh ^' '''^'"«" '■" ^'^i'l ^v
ent hin.elf. as wellt ^ asZ^T' '' ''' '''^'^'■
committed by James S ChT . I , ''''" ''^"'"P* Practices
Ha,an. and ;the.:hifaSr' ""'''"' ^^^-^''' %^1.
Before concludin.r, j ,1,.;,.. x„ ,„ .
to the proceedings aTul I^ Xh^ ''"T^'^" "^
occurr,.d on the Sunday uilt bet ^^^'^^ *" ^>'^^"
-ornin,of thedayof .f.X^'^*'^''^'' - ^ the eaHv
ant^r^-:str:r"-'^--
especially in reference to such ^01^1 '""^""'^ ^PPo^-ter.
except as a last resort, mast una'f Jj^^^^^ f ^"P^e-I
•suspicion, and cannot be accepted w.H^ . ^^"'^"^ ^'^'''
this the more if among tC ™ ^ ''"* ■^'7*'"y- ^"^^
who for years have been Zl .T '^ *'' ^"""^ -^^'"-^
ployed an.l trusted by him "n h "'' ^'^ ^^^ ^"•^^«'^'- -"■
them confidential and of T'' '"'"*'«"^^' «-- of
rence-the cand'da'e to l '"' ' ^^"^'^^ '^'"'^ «^«"'-
ance keepin. aloof Wtr^ "?"""^*^' '° '^'^ ^PP^^"
avoidingL.y\p;:Lxti;r t^^^^^^ his .^u
remaining ignorant of eveTythit wV k^' "'''' '""^ '^"'^
come known to the most oTcJ ^ „ w"^^'' "^^ '^-
*twy ooseiver— Ignorant, in
"IONS. r.
>l<'Hsuro nhout it." |
lit' pn.'ciHt' w()i-,|.s u.s,,i
^een l.i,,, and St.nvait
vnrfH vote, and that
^aid to l.ini. " I wouM
t'on," i.M th„ kov.„ot„
>od it, though hi.svot,.
respondent e.\p,.ct,.,|
J Kuardodly veiled ;
aynient confirm „„.
this to havo been an
«pondent, of money
wart to induce him
lection, and I there
election i,s void by
ed by the respond.
ir corrupt practices
t McMaugh, Ffiuri,
an observation as
»e proved to liaw
or in the early
is entirely ignor-
Balou.s supporters,
'•e rarely adopted
be regarded witli
it .scrutiny. And
are found some
^ hi.s service, em-
ilations, some of
aps daily occur-
y, to all appear-
i of his friends,
ir acts, and thas
might not be-
r— ignorant, in
1875.]
LINCOLN.
415
tact, because he will not use the uiean.s of int'oniiation
rthich surriKind him.
SiK-h ignorance bring.s to mind the old maxim, /f/norcni-
tla jiirin quod (/uist/ue trndur scire ncminnn crctimt, and
iiiake.s Mr. Best's comment on the maxim more pertinent :
■ If tliose (miy should be amenable to the laws who could
U' proved ac(|uaintt'd with them . . . persons would
naturally avoid ae(iuiring a knowledge which carried such
dangerous conseijuences with it." •
And so the wilful avoidance of a knowledire also frau<dit
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 immeiliately acted upon and carried
ipiit by an early hour on Abiuday morning. As a fact, I
cannot rind proof of the respondent's knowledge or con-
sent. The evidence of agency I think ample, so also of
hril)ery by tho.se agents uui I is avoids the election. The
sliortness of the interval between the resolve and the
execution renders improbable the fact of the respondents
actual knowledge, ami a rinding against him ought to be
fiee from reasonable doubt.
Buhton, J. A. — I concur in thinking that this appeal
mast be disrais.sed, but I desire to ba.se 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 conceiveil
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
n'ii
416
PROVINCIAL ELECTIONS.
[a.d.
ought to induce a judicial t,.ibu„aU„„,
P'con, or to i„,agi„, j,,^ ™"^'' '» »»» upon mere s„,.
might have been given ttl^^r.'i. ™''™'» "'''W
thought prope.. JbA^gtoZtf , r"""™' '"' «
evidence, and not upon fhatSvXlLt T" "»'
forward ; and that when circom.t ? , "'" '"""S'"
°". the cire„„„tanc« to eS A t'h "« ''"°° '' '^'■'■1
proposition must be .11 „ '™* 'he affirmative ot .
and that there:L;:ir;:'„r "''* *° •«"»-»•
by the tribunal, if you ml, ' I """i"""''""™'' heiievej
inconsistent wi h Iny Zl '?« "'"■ " "">"°«l c«
There is nothing in'S!^ C To \he"'?, °' '"■'«-
not consistent with the respondel'stn^tcT '"''"" '"
-»%ht-Csrr::iXdfc:,r^*-"«
th.tet^:r;r!:ru2°:\r'^™'"---»
when a rule is moved for J . , P''"'*'''" ^^ J»Jses
on the ground that hfve^dll fs? ''T'''^' ^' ^ i"V
Judges do not consider Jwf , =*'"'*^ '^^'^^"«'^- Th
arrived at had they been nl/""'^" "^^>^ ^^^^'^^ ^^^ve
jury, but whether LreTs tm ? "" P^^^^^" «^ ^^e
the verdict, and whe hlr , e !r. '^"^" *^ ^™'
with it. Here the lea ned Jul f '"^ "^"^^^ '' '^''^^^^^
clence adverselv to the rL„on^ >' ?""^ "P^'^ ">^ --
-me on a que,;tion of flett t u^ ' '""^^ "^^ P^
his, when he had the advantL .? ^ ''P'''^^" ^g^i"«t
apart from the deferen e ttfhil T> *^*^ "^*"--'
of his learning and experience *' '^ ''"^ *« ^ '^'^^
Patterson J A Th* •
of Mr. Justic; Gvvynne wh-r T'^ ^'''" *'^^ ^^^^'^i^"
disqualifies the candSet .^ T""' '^' '^'^'^'^ -^'
by him. ''^*' *"^ ««'-"^Pt practices committed
The evidence on one of fho „i
a colored man named Stevvlrf '''^''■. '^''•' *^"* «^ ^ribin,.
tain the finding, and I se To 'a^ ^t 'f '''''' '^ «"^-
V- of it from that taken b;:he1etrrd;e.'^"^^^"
187o.]
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 Soo as compensation,
partly by cancelling 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 'ihat, 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-
veimtion with Mr. Neelon, and some Httle 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 ab 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 tlie
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., U.U for flour &c and
on the 16th Jan., ."JIM?. 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 1-^
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, offered
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 nece,ssitv of
ihscussing the other matters covered bv the very careful
and elaborate judgment of the learned Judge. One of
these subjects, viz., the construction of sectio^k 66 of the
Act of 1S66, 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 V/entivorth case
{ante p. 343). And we have further to construe section T.C
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 lam
not prepared to assent to the application to that case of
1875.]
LINCOLN.
419
on, given, offered,
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 saspicion
created in our minds that the candidate can hardly have
been quite ignorant of what was being done on his behalf.
I entirely assent to the distinction which was clearly
pointed out by Mr. Robinson 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 i' .^rant as to be appropriately described as per-
V , the atmosphere; where not to ascribe knowledge
. . .■ 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 of 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 iihe 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.
j^ppeal dismissed with costs.
(9 Journal Legis. Ascem., 1.875-6, p. 199).
(o) Keported Uominiun Elections, 1874, pout.
' "4 H^. :■
420
PROVINCIAL ELECTIONS.
[a.d.
SOUTH ONTARIO.
Before Mr. Justice Wilson.
VVhitbv, IM to mh May, 1875.
Before the Court of Appeal
TcRoxTO, ,M D.c,-ml.r, 1S75, ,,nd January, 1876
Abram Farwell, Petitioner, v. Nicholas W. Browx,
Respondent.
do all they could to secure his election 1 ^ ^focation were to
in O to canvass the tovn, and a com n^Vn co'nm'ttee was appointed
for by th« association, C;?s'irsrwerer'"''^''T«^ "
vassmg books, and memberwero annofntfrl T""""*^ ""^ "sed as uan-
town, and reports were madpfn +^t^^ • *" '"anvass parts of tlie
canvassing ^fhe respondent, who residLd'afw "'A' ''''''' "' *•>«
at Cfto appoK^ru^ L* rZrK^^ such con.mittee
t.cular matter and for th^t occasion ojXIP^A' ''«""'« for that pa,-
h.s general agents for all the ^^ '^l/CelSor '''''' "'^■" ^^
>ng of the respondent! Cnds m W T ^"".''.y ''"""'^^l ^ '"'^et.
present, anc' at which arraZments ^e'r. „^^''\"'\ ''"^P^^'^^"' ^'^
^St'th" V'°*"' '*"' «--'"" "b^uTthe So.^"* •^^"^"^^"'« -^
^ .y^S;^}^^^-iS:'of -^'f S --- ---^
vassedCSrpLtnHndTaS^^^^^^ ««»• -d can-
expected him to vote and work for him "° '•°"^* ""^ respondent
^ by the respondent'^^^^ereVeX bX« gtts ""«"^^'' '''"' '^"^l^''
f n; ~rdtrhl,*tnef S S l'""- ''''■ ^<^^P-^-''« '^'-
twice. B. was also appointed in wr ffn„ 1 ^""m'tt^e-rooms once or
scrutineer for him on tL polling dav an^H ? * • ° "-"^Poudent to act as
wluskey to the Deputy ReturnMffi.t^^ **1V""« R°"'"8 hours gave
acting in bis former capacfty as coi^Zr"*" '*'''"'''»^«''' ^^ ■«"
respondent, and that his appointinlt ."!•""*" "^ "g^nt of the
him to do an act of treatiE ^ o Lk \",'"*'"««'- ^id not empower
for it. ""« ^° ^ to make the respondent answerable
1875.]
SOUTH ONTARIO.
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-
mg a voter from the town of O. to the town of W. (within tiie sanTe
electoral division) to vote at W., treated himself and the voter in O
HM {Draper, C. J. A., dissenliente), that C. was not guilty of corruDt
practices within s. 66 of the Election Law of 1868.
^'^A,^y *^^9'*"'•'• o^ Appeal {Draper. C. J. A., dmentienle), that s. 6(5
of the Election Law of 1868 (32 Vic, c. 21), as amended by 36 Vic. c
:- *PP'"^s only to shop, hotel and tavern keepers, who alone are liable
to the penalties for keeping open the tavern, etc., and for aelliuK or
giving spmtuous liquors during the prohibited hours.
Held, by the Court of Appeal (reversing Wilson, J.), that the prohibition
111 such section (66) as to opening taverns and giving or sellinc liquor
m the municipalities in which the polls are held, ''^applies to all the
niumcipaiities within the constituency, irrespective of the place where
the vote is given or to be given. r cic
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,perWihon,3., that he did not "sell or give " spirituous liquors
within the meaning of s. 6fi of the Election Law of 1868.
The petitioner was not allowed to urge before the Court of Aopeal 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. ffpxtor Cameron, Q.C., and Mr. Billings for respondent.
The evidence affecting the election is set out in the
judgment.
WiLSOX, J.— The petitioner contends ho 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
coi rupt practices to have been committed by W. H. Billings
and Francis Clark, who, he says, were the general agents
of the respondeat, 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.
It must be considered—
Firstly : Whether Mr. Tliomas and Mr n\hh.
or ei hP. f .? ^"""'^^ *^'"*'^ "'• *S^"*' ^>^«ther they we,.
or eithe of them was, the agents or agent of the resnon J
j-iuiuiy. it ihomas were the awnf nf fi.
respondent, has he been euiltv of . !^ '
Fourthlv Tfn-iK "''^",S""*y oi corrupt practices'
* ourthlj If Gibbs were also an agent, has he been .^uiltv
of corrupt practices? Fifthly: If Billings were an a"
has he been guilty of corrupt practices ? L.hly l" ct '
were an agent, has he 'jeen iniilH- ^f /' ^
Seventhlv Tf TK ^ ^ °^ ''"''^"P*^ practices ?
seventhly. If Thoiiias were an agen^ has he been -uiltv
of corrupt practices by having had mv ,n f iT- f '
brandy by G. Hodson;t the "ma' e o Col, n ^" ' ^'T "'
hours? Eighthly Whether ,"' ''^ ^^""^^^
ifeiituiy. wnether the respondent was cniiX-Trnf
corrupt practices by having had sold or given to^m
Ray s tavern, by the person attending the b« ,- ih
during polling hours ? ^ ^^' ^^''^' ^'^l""''
.on i„. chooaing delegate, and was chosen one 071, ,"
hfi TdL? r'^ "^ 0™-™«ve A,s„eial„
tne i,outh Elding. I am a member of the Msociation
The meeting was at Brooklin. The delegates rXed to
an adjoining room and chose Mr. Brown bv ballotRl
accepted the nomination two or three 4.™ after u
understood these delegates were tl dfa' that tZ
could to secure Mr. Brown's election Th ^
ingat the eommittee..om -forwallrZX
Browns acceptance; don't know who engagedTr pS
;tions. f,^
section of the Election
-nd Mr. Gibbs were, or
was the general agents
ily : Whether Mr. Bil-
^f them, and which of
3nt of the respondent,
lit, whether they were,
agent of the respond-
practices charged are
vere the agent of the
f corrupt practices !
nt, has he been guilty
illings were an agent,
es? Sixthly: If Clark
3f corrupt practices ?
u. has he been guilty
iv.-n tohimaglassJf
' Columbus in pollinrr
londent was guilty of
1 or given to him at
: the bar there, licjuor
h is whether Thomas
the purpose of tlie
on the evidence, and
was at the conven-
shosen one of them,
•tive Association for
of the association,
ielegates retired to
^n by ballot. Brown
days after. It was
do all that they
There was a meet-
' a few days after
J 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 I'rom 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 TMide 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.
";ay be an active member oo tT^ T''""^"'''' '^^ ''
f they could for Brow„ Br '''^"'^^ ^^''^ *« ''o
Thomas resided i„ oZl re^ "tt^" ^'^^^'^^^
Thomas speaks of were held in nu ''°""'"**«« 'meetings
'•oom was paid tor by tit Con,? ^ ^^' ''«•"""■**--
•-y be pr^umed thft ^ that 1' 1" ^"^"^*'«"- ^^
of the hiring of the comm t ef "' "^ '"^ '^' *i">e
by the Cons^rvativeTsrlM ''7" '^^^^"'^ ^«« <'o„e
Jf "tions of the eLtr rrlTS^f-^^-^-yeon-
tative on the side of that horl J^ ? '"''^ * represen-
Pjace after that which xnustle "IT^' '' '' ^^'^ *«'>k
nector identify Bro:;/:Lt:sy?^ "^^^^ *« -"
the previous conduct and position o "JJ^'""^'' ^^^hough
wholly lost ight of. What hlnn , . "''' "^"^^ "«t ^'e
room in Osha^va was opentd^^^^^^
•"efc almost every ntht Z T *^"'^ ^'^^ ««'»""ttee
provided forcanvi:;;ttherwnTh'^ ^"^^ They^
generally; he wasnot restricted to !' ''"' *° ^^"^'^'^^
-^ it. Voters' lists were" bv^r^^''"'"^"'-^^^'^'^^""
v-!"g. Thomas met B o wn afosha""f '" *""• ""■
vassing. Thomas supposes Bnl t^ ''"""^ ^^^^ «a»-
doing all he could f" r wlT b" '" ''' ^^^'^'"^■^) -^^«
-nts of scrutineers. anTdeWed r^' '^^"' ^^^«^"^-
the committee in Oshawa to fillTp IZH" T' ^^^ ''
the .aeeting held after the nom naLn o ^^•^'' '"■ ^^
at wJ,ic.h Brown was present i.w "" "«""»^tion <lay,
should be canvassing, vo ers b 1",! '""'^^"' *^^* there
-eans taken to Ward t I e e jfo„"'^^^^^^
went m to win at this election In iT" v^°"'^' '^^ ''«
do for Brown all over tte r d^!" ^l^''^ ^^^* ^« '^^"'d
the result of the election ^' '"^ ^^ ^"'^ ^^^ ^«t on
r^-wtts-:t^.-.ei_
--Iwasdisposedtothltry^L™^^^^^^^^
1875.]
SOUTH ONTARIO.
425
was .shown to be an agent of the respondent during and
lor 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 sicrned
by him, to till 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 durincf
that period of canvassing, ami 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
(lone.
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. Stakyhridge case (1 O'M. & H. 66) ; 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 KLECTIOX8.
Van act of l,nl»erv J'r- ^^'^'
thought that .trict?alr' "11 ^' '''^- ^ "• ^88). i
-- no expreas or direct autotv ' T'''^'' "'-''
rho.na« to canvass goneraliro To lo "iT ^^ ^'•"""^ ^'^
I di.I not tinnk it was cone usL" V" ^'' ^""''' ^<- '""..
that U was evidence neve,t L:;:::^^ "' '^""^^' = '""
But I am di«po,sed to doub ll Tl ''^ ^'^ '"' '"•
f«tabJ.sh.d either in factor by irr"'!!' '^^'^'"'^^' ^as been
>ng reasonH : The original necti^^ t ?'"' *^'' '^^ *»"--
-"^d by theConseitativel S,:^'--^'^"'^'^^^^^^^
the tnne a member of it T] ! , > "'''' '"^' "'
which Thomas was one L ! , '^'^''''^ «« chosen of
'Jidate. The connnittr;orrot ^'■"^" ^'^ ^''-' ^-
«ame association. How 7L ""^^ ^'"'^'^ h the
<ioes not appear. ^01^1"':?"'^ "" ^P'^"^"'-'
was never at any of its 2^Zl rf "' .^*' ''■ ^™-"
he knew who were the ,l! 2 "'' '' "° '^^^^^^^^
conimittee t-nquestionably dt eanLr^^"'''^ ^*- '"'^'^
^t to be done, tor Brown and In !?^' ^"^^^ authorise.!
feneralJy fW their candTdatTrf'r^^^^^^^ "otters
identified with it, then ag ney by " ^''"" ^^" ^^
Tnomas also will be well estlw I ^«™""ttee and by
ean Brown be identified w^' 1 '^"'^^^ ^^-^ B"
.appoint it ; was never atT i^r/T" "^ ^ «« did not
Jt ^ excepting the fact that he^avet T "^" ^""P^^^'
his scrutineers, there is no evifr ''^""f "^^ to appoint
knew there wa,s such a body at "l r'"'' ^'^"'^ "^^^ ^-
^'«« (1 O'M. & H. 66) Blackh" t ' " ^^' ^'^ieylrid,,
;»ittee not selected by thetsr', ' '^^"^^ '^^ ^ "--
^-^^^rf. volunteers c'iosen by'th "!' '^"* -"«-«ng of
a« persons in whom they Lyc!„fi7'''' ^' *^^ ^'^^^^^
of their own department and r^f"''- '" '^^ *he head
-t p. 72, he says : " But in sueha" '^''^" '" ^'^^ ^^-"'
convinced that they were In T '' *'^^'' ^^^» ^ «'"
voters acting for theLres not f, ?! ^^^ ^«^""t-'«.
,«; chosen by him at all buTreri I " ^^ '^' "^^'"^^^^
i'ke manner, the voter 'of the d^^ ^^^^ ^" * husines.s-
« of the district choosing sober and
'IONS. r
[A.D.
(lO'M. &H. 188) I
' part of Thon.a,s was
^^ to, altJiough the,e
given by Br,nvn to
'all he could for hi,,,
lence of agency ;i,„e
fi It certainly i.s so,
'«'• agency Jms l.eei,
ition.forthefoJIow-
2lioose delegates was
>n. Thomas being at
gates so chosen of
irown as their tan-
'a was hired by the
ttie was appointed
berofit. Brown
ere is no evidence
'Uprising it. That
^g> and authorized
»e election matters
f -Brown can be
jmmittee and by
■inst Brown. But
tee? He did not
«v who composed
lority to appoint
h shows that he
the Stalcyhridyc
aks of a"coni-
ut consisting of
of the district
to be the head
er ;" and again,
his, when I am
'-de volunteers,
y the member
in a business-
5ing sober and
1875.]
.SOUTH ONTARIO.
427
rospectable tnen in whom th.y had confidence to be the
head of their own -lopartnient, and acting together a
iiics-senger who is sent i.y 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
otf.Tmg a bribe." So also in the Wi'^tmimfcr msc (1 O'M.
& H, 91), Martin, B, .said : . was proved that .me Davis
was a person who canvas,ied for a society called ' The
Working-man's (J.mservativr Association.' This society
was as.sumed to )>e formed of working-men, but next to
nothmg was subscribed to it by working-men ; all the rest
of the funds of the society came from a subscription of
itiOfrom the respondent himself (he withdrew from the
society, however, on liecoming a candidate), two sub-
scriptions from his partner, and various other sums from
persons who subscribed, expecting this money to be ex-
pended m promoting their political view,s. The funds ot
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."
r 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
hmi (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 .
acloption--were not, in fact, his general agents deriving
their authority from him a« 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
'Yv
418
PROVINCIAL ELECTIONS.
[a.d.
statement „f Tho.nas shows rather H,„f T ^'"
tear and had „o author,-, lo B I'^J^; r«'--
acting under any authority th«f 1. ^" ''"*
.ir y/., 70), where Blackburn, J said- "TK
effect of that would he to sav thnf v„i ? ' '''
volunteers who were actin?«/^ TT' ^^''' ^^''^
■late «. hi, agent .i„, -J a!: v^ ^ ' Tb, ' "r*
to Thomas for anything he suZseTTh7 ™"'' ''"^"'
The n.ost that can be Ld 7 hat if Br T, f""^"'
Thomas was doing all he could or Mm h Z "1 "T
to it or repudiate his acts. But a candidate •'"'
interference does not necessar it bt^L Vf'' "'^"-
ioi mm. He said that nothino- n+' +;, i • i
was mentioned; that all he said w«s fw\ ^""^
Brown did know that he\S \ ^* ^^ ''^PP'^^^*^
Know that he (Thomas) was doing all he could
^^w
1875.]
SOUTH ONTAHIO.
429
for hiin. After much liesitation, and I iiiiist Hay to a con-
siilerablo extent against my own primary impression, I
tliink the agency of 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 coinmittee, and if the agency of tlio committee had
iKit'n provt>d, the agencv >j '^homas would have been
proved too. But I am not saiL^Sed the committee are
shown to have been tht g. Meral u. t,horized agents of the
respondent.
As to Mr. Gibb.s, the r .l.r,Oo an to him is: "I waa
working in Brown's interesu 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 connni.ssion
over the rest of the town. We met at the connnittee-
rooias. Oshawa was divided into sections ; each section
had a committee of its own. I canvassed where I thouglit
it would be of use. 1 had a voters' list. We rai.sed no
fund to pay expen.se.s. I did not contribute one dollar.
No arrangement that I am aware of to pay expenses. I
was in Oslmwa on polling day. There were some public
iiie^'tings 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 tliat Brown expected me to vote
and to work for him too. 1 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 ihat 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. Tliere
is also the same lack of evidence that Brown personally
480
PROVINCIAL ELECTIONS.
[a.d.
adopted or authorized Gibbs'inrHv,M„oi . -r
and Gibbs were not, according to th^ «, i , '"'""^
as to Mr. Billings is- " T f. i! . ^^"^ ''^"^^ncT
but that one in the place iT.l' <^ommittee
the polls here for Brown Tl. ^ ««™t»n«er at one of
thatday. I ook it for L I ? "'' ^^^^'^^^^ ^* '^^ H'
in. Officer -t:^ t\X ri-t\t^^^^^^^
no one else." ""^® ' S^^ve it to
I think on this evidence that Mr BilHno-« , •,
actmg ,n a special character as scr^tLfr ? ' !
a special written authoritv from the . ""''"
such person the arent nf Ik ] f ' """ """ "•"''•
H 188^ ih^ „ • X person— ^i^^M mse (1 Q'M &
s on Mr Billing' ., .1, "'"'""' '"' ■'• Upon that occa-
duty "ndle hS n„ „"" '' ""l """"'' '" «>»* especial
(1 O'M & H. 194). The facf ,K„\ '^ ' *''>"' «"
Deputy Reteming otrLa't^ ^^ "'"'*'''' '" '''
--he.ianotai„,„etorac:i;'::rs,::::
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 nuc 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 Whitbv, 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 I
suppose he voted. He does not belong to my lodge ; he is a
Roman 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 general! v
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.
r HmJITTiw
[a.d.
were not the agents ..f ih. T' ^^' *"^ ^JlJin-'s
against them. ^^^^ ^^^ *he acts prove,!
C.a*-atlS:g:"SeHf '^^ ^'-^ '~«^" ''V
dispose of. After mS ^ «»P<>n<lent, I mo,t „„,
t-«„g by Car., an ZZT'^lZf^'' "'°' ""
of the voter Jordan was nnf .r. ° , "^ '-espondent,
;he 66th section of the^.e^: oX :/ ^8 1 ^^'"'"^ "^'
quor was not so given by Clark To tT' ^^''^"^^^ *>"■
limits of the municipalitv w^ \ "^^^ '^^^'^"^ ^he
Whitby washeld. iThbktIatLf 'l-^' *'^ *«^^''-*'
of the section which it wa,!„ ''"^'"^ '^^ ^^^^^ P^«
The whole section wX^.T ''f ?^ '' ''' --
closed during the dav ann^rriV l . '^ ^'*'^' '^^- «^^" ''^^
or .unicipaHties in whL^C^^^^^^^^^^ ^^'"^
uous or fermented liquors or drink. 1 ^fu' '^ "^ "P"''^"
to any person within LlmTts OK ""' '^"^^ «^-giv'en
the said period, unde"plX;f;rof>^"*^''""""^
case." If a poll i.s held in ? •! '^^'^ '° every such
into which the cit - i,s dfvided ;:Xr r, °' '^'^ ^^^^^
hotels, &c., in such wardT,wH "I I '*"'"*' ^'''^'''''' '^^
closed on the day o poll " 'tL ''" '^ ""''' "^"'^^ ^^
the other, but no liquor to be f u"" '•""* ^^ «^««-l i"
the whole of the cilythL is tt "' f^ *'"'^"»^''"^
<luring that day. If an el^ '^" "^"nicipalitv.
and in another'^mun cllitv fo" " ^""" "' ^"^ ^ ^-™
sion, the hotels, &c Tn all h """^ '"' '^^^^"^^^^ ^^^^'i'
Polls are held mtt Z 1^! ZZ^f^'' !" ^^^^^ the
or given within the limit, of , '^"''' '" t« be sol,]
-;i period. i^^':^^c^'z:^^^y^^^^^^^
pnhties nor within the electoral H '"'^ "^^"*"'-
J .
1875.]
SOUTH ONTARIO.
433
what municipality is it that is referred to by mch 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 municipalitiea being in the
one electoral division of South Ontario ?
If it wiil 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 f 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 municipaliti/,
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.
held, as in Clark's case ZTtlT] '^^ V^^^^d to have
Mr. Hodson gave to M^ Tl o 1 1^^^^ 'T'' '''^^'
liquor given in the municinaV ^,^ "'"^"«' ^^a« not
held,sofarasThomaswaZ'ct^^^^^^^ *^ P°" --
If Thomas had not voted at irrr"'''^ ^" ^^^'^^^•^•
still be contended by the peL ot "r^'''*'"^ ^* ^'«"'''
- agent of the ^onlnTa^uL fnnk '^ '^' '-"
Thomas a glass of brand v at anv i '""'f^^P^'" Save to
toral division, 3r even b Cd it if'' '',;?^^" *^^ ^'««-
held there at the time t " ol ' f ^^'^P^'^*^'^ *« ^^^^
for this South Riding. ' '"^^^'^**« '^'^ election
I can see a way in whioh rlnrt^v
the words ... i.4t4.tf: n^^^^ be given to
person is to vote, because i^may mean X'" ' "'"^ ^
where the vote is given ortoh municipality
agent of a candidate, who ha^ 'o fT"-' """^ '^^^ *'-
^•«c4 municipal^,, I do not knn ? ' \' ^'''''' ^'^i^^r in
the reference is tdeCdtiL*' ""' -"nicipality
is referred to if the a.<Mrs 11 or ^^ f "' '""nicipality
who is not a voter in tte ele 1 L^T! ^^"'' '" ' P^^«-'
al3o that this act of drLkt t T^^^^^^^^^^^ ' ^'^^"^d -3'
of sell,^ or ,.W„, liquor ':S'hi^L^o:,: Zt "'^ r '^^'^
receiving only. As to thp «nf *• • ^'^t'^"' hut of
"« been p,wed,.„d if r:"^; bvir' "'."P'"'™
been provod, the giving; of sach^ZV^T ''f ''"
"Pd construction of the Mth »ecHon lb \?u ' ''^ *'
no corrupt intent, ha™ ,„ade void tb . «'' """•" ™
agency was not p„ved ir,!l " ''"'"'°"- But the
The eighth queZn' rWh:rr "^■"""ed.
^pendent having had liquor ^0'!;: ft "' "■= -^■
-evented Wdnl--:V:-«^^
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
hiifing or receiving drink is not selling or giving it within
tlie 66th section. It is said that as there can be no sale
or gift without a purchase or receipt, there can he no
complete sale or gift until the other contemporary acts
take place ; but that where the sale or gift is complete,
the purcimser or receiver is as much an offender against
that section of the Act as the seller or giver, because the
Act does not say '.lo person shall sell or gi. 3, but no liquor
shall he sold or t/ivca, and it is sold or givv^n 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 Tnuor shall be sold or given to an//
person under a penalty. . 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 ; the other
cannot make it, although he is a receiving party to per-
fect it. I fully adopt the opinion of Draper, C. J. A., as
given in the West Toronto case (ante p. 179), decided a
few days ago.
If a statute declared that no pi'omissory note should
be made without a stamp being attached to it lii'der 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 c^didate
himself, in taking a glass of liquor as he did ... Ray's
tavern, is enforced, as it is said it must be, then, as the
29
436
PRoviNciv,, Ei,j.:c rto.vs.
rc" r
^1.,
[a.d.
candidate himself at his n,. n
"•i"*ey „, b.., ,,e L:: t: ,;.:r:x ''t •■■ "'* '■'
••upt practice, and b* sides ih/\'r.' JL * ^ ^'^" *'' * coi-
cuniarv penalty he h. ' "^^ ^^"^ '^^^^^ ^"^ a pe-
careful how . . atlte i , '''''^^' '""'^^^ '»»k<. ,„.
i'i^l^ly penal con:'^^!^'"'^'^''^^^^^^^'^
The more coi' -reh >n«i» fk . .
ing and treating at su-^ h!^ ^T"'"'' ^^^''''' ^'""k-
-ust be ^r el^toj' ;;.,:^:: ''!-t'^^->>etterit
eerned; but it cannot be m2 so i ^7,"" P'^'''^^"'^ ^-o"-
'•■^ it now reads and as it i? ?•? '''"'^" "'^ "»4"aliHc.,i
«o far as thiroast '"' '' '""'* ^^'^ '='^"«*'-"-l.
yhoieofit^to::j,;::-xr^;rf?^*'^^
''oubts, fron. which I cann,>. !" j am vet r '" ^""'^^
I'espect to the ao-encv of Th ^^/ '"^^'^^ed, with
with respect tollxGibbfit "T .""u ^^''^' ^^^^-^'^
whether he was an a.fn' :7Tt1 '' '"^ '"'^"'-^
treating hiu.self wasCain t t^'/T '^^ T' ^'""^ "^^'^
•stated, and I have vervCT. i f '. "' ^ ^"^^ ^'^'^"'^''^
the two eommerciallX :ttn:?^*'"f^^''^^^*^^
and not voters can be nn Tf '"^^^ngers in the division
tion just constC; ; r ^^^'^ '' ^'^ '''' -
given of the kind of houtw^^^r^ T,^^ ^« ^^'^^^'"ce
f-gers; there wasrhjgtwi^^^^
termented liquor- and T .1. , J T ''^' ■'?"''*"«"« or
-h a defect'of ^iVevL if t 'tT' ^^ '^"^P'^^'
ful Examination under ihrrclCc '^ ^'^"^ '^ '
of the 66th s;ction f he we"e an" ^""f >" *« ^^e effect
'-t I think he was not XulTw; ^ ^' ^^^"^^^"^^
committee, but the comr.ittee were „ tT'^''* «*" '''
Brown. Upon that point an,^ i ''"'''*" ^^
Clark (who I find was'l" 'X:' '^ "^ ^^-t of
mg Jordan outside the mun ^.espondent) treat-
voted, I entertain, as I h ^ aJ "*" '^ /'' "^^""^ '^'^^•^'^»
able degree of doubt and ^ h ? ^* ' ^ ''^'■^' consider-
ii. . 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 trial. 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 election 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 obli<red
to say that I regret to find that the respondent should
have been m 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 drinkincr
and that other persons of influence and good position
should have been in these places at such 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, dischargino 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'
tor 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
488
PROVINCIAL ELECTIONS.
[a.d.
heing so entirely indenendpnf nf ^u
not in any way respZy. f .t ''"'''''**^ '^^' ^e i.s
doubt some freein am t aff ''"r^°"'^-^' -"^ no
voluntary independent o'laL^f it,:: tl"' T '^ ^■""
persons so aidino- in fl.« i !• ^'^ ^'^'^ ^^^^ of the
binding on the iLat "'""' ^^'^'^'^ '^'^-'^^ -^ he
While the rawn^oM case (21 L T N S iro. • .
very much the other wav-fh^f •.. ^^ '" * ^'^'^''^i'^n
forwarding the geneill ^u pl^^^
power of binding the candi^.r """^"''^ ^*^<^ ^'^^
he, with a knowledge of St ''% '^^^ ''^'^''^S. unless
work. " * *''*'" Proceedings, repudiates their
There is much force in this view and T n v •
nearly represents my own o. ' T ""^^^^ '^ '"«''^'
referred to. It mav no , ^'"^' ""Preasion, before
vail so absolutely afstld-rr,'' ^""*'^^^' '^ P-
The candidate ca^nnot bet uTrefin f '""''^"^^' ^-'
press an help from every voCtv T'^^.T''" '^"I^"
repudiate every effort of imb-v-T,^ association, and to
of the candidat"! hav I fTw^'k "'"^""- "^'^ *'-^
neers to be filled up b^ them f i •^'^'■"""'"^•^ "^ '''^'^^
for holding a eandid'at'tlt . Td^^^^^^^^^^^ ^^^^^ .^-"d
his representatives and I mi^hV ^ , ^ committee as
hably I might have s'o de fi^/:;" ^ '^ '''''''■ ^-
consideratioii, and then the mf. '"''' ^^^'^"^^ fo''
would have depended ^n IZZZ '^ I'T^' ^»^-^^-
and the effect, of it as to wM.rr ^* ^^""^"^'^ 'avera
the time which I ICk to b^^^^^^^^^^^ - opinion at
Witr ^iXToTi:^^^^ ^' t?"^^^" '' ^^- ^-«^e
the following ground of appear" ^'' '''' ^'"^"^ ^^^^'^
giving spirituous an'd f^ue^ S i uorT ^h" T'''' ''
the day of polling, and durin- f h T ' ^^'^^^ «"
polling, to divers persons a" dMt ^k"'' ^PP^^'^^^d for
present when liquor wa sl^t ! ''^■^Pondent was
seated thereto " ^'"^'^ ^^ ^^"^^^aid, and con-
1875.]
SOUTH ONTARIO.
489
The order for particulars of 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, crave
spirituous and fermented liquor, and drank with divers
electors, to the petitioner unknown, at Ray's hotel in
Whitby."
Mr. Bethunc 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
irom raising it.
The Court declined to entertain the first ground of
appeal, as the allegation therein contained differed in a
material point from the charge specified against the re-
spondent m 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 :
Drape!?, C. J. A.-I have doubted the correctness of the
Oecisioi. ir, Clark's case, and am not sorry to find that
the lea, aed Judge had also a considerable degree of doubt
as I should not, unless upon the clearest conviction, depart
trom his deliberate opinion.
M>
^10
'•ROVINCIAL ELECTIO.VS.
fA.D.
The facts sfoin to he as follows • n r ,
voter, whoso .o.side„ee was in wliH '^'''"" "'^^ '^
v;.ter in that n.„ieipali:;;%7J /^^^^^^
election he »•»., • -i,;.;, ■ "l; , '™""S Hie tiiiu! of tl«.
«eP"mt. .,;„,.i<,„al,Je, ''*»"»-l»"ll l.laee». t|,„u,.|,
of .So„t,, OnSo CI. k''lC '"" "■"*"'™' "'vi*
™fflei..,,t,yp„,„a,wc,:t'; ::*7 "pr^ "■ '■»
not to he a violation of the (ilith 1 " i '" ""» '"'W
m which the po„ (■„,. a„ j„;'' ; -;;""■■ "n|ni,.ip„,it,
>Hie»tion «-a, a»ke,l a, to tl, I 1 ^ ""» ''»'''• ^<>
Pl.ce-n„ do„l,t ™," !'":""»', '!"■• '-«»«">,' took
W.-,r,, appointed forpo^L . V'" '"'"' "'«''" ""'
1>- . "o-Mering thft wta^' '" "T ""'■ '° "'
practice, which, it com.nii, ,]7 ""'"W " «<>'™l '
actual knowledgo all 1 f","; '*'™' "'"■™' «'«
avoid the ,..l„cti„„, it cannoTu ' "'"'^''''"''' »""H
'rial; and a, the ewCc" , l" 1"^ °™''°"l<e.l at the
Whithy to 0,hawa lo^ ^^.^un tT ""•"
Iiim when thev <»ot to l,i ,,,"■,'""' '^'n* had told
oeuM stop theri ^d ^, Tn "Jw' ? "^ "'r *»' '■«
ttat no point .as beeS «Z° iedl n" ""'' "'"' ""'I
tre-l was „ TO, not .rftl ,, "",'""'"■ »We that the
Pomng. , ,ha„ assrit"t;:t:tetr """ '"'^'' '"
■ ^^^:^:^^:z:;'^ZT -pon this s.cti„„
conl:L':',tf„/--^';^^o^ -rde. at election, i,
eolermir,. w„ -, or „ ' ' ■ ''''^"^'«'- »s betv ,.e„ two
pe«o„., . e. lit a r T °J '" ""* "^ 'l'«»
their diso,„eri;;;,r,.*r^*-7«™ %' '"""'""^
nicipalities in which Dollf, ^['".""'•"ee between mu-
thne ,nay be such as'to L Lt"? *■"" " *» -'«
P-ision against da„,e. t:tirt:rSiZ
187.-).]
SOUTH ONTARIO.
441
cau,se. and ought to repel the i.lea that the Legislature
had the prevention of any such danger in their cuntciu-
plation. But it would be little if at all less absurd to
hold that treating votei-s in municipality A— who, l)ein.»
excited to iawle.s.sne.s.s and inllueuced by li(|uor! wen"
into the adjoining luunieipality B, where they created a
.li.sturbanc -would not be witliin the mischief intended
u> be prevented by the Act, as if the tavern in which the
liquor was given to them as in municipality B.
Further; I see nothing in sec.Gll which makes the fact
that the person to whom liciuor is given is or is not a
voter an element in the matter prolubited, that is, selling
or giving to any person within the limits of such nmnici^
pality. There is no necessity that a man should be a
voter to make selling or giving li.juor to him on the
polhng day an oftence subject to penalty. In Jordan's
-iise. if he had not been a votei', giving licjuor to him in a
tavrn in Oshawa would have been a violation of the Inw
assuming as I do that tiie day in question was appointed
to' holding the polls in the municipality in which the
n stood.
1 .ink we surmount most of the difficulties suggested
by holding that section G6 is confined to the re.mlation of
hotels, taverns and .hops in which liquors are'ordinarily
sold. On the day appointed for polling they must be
kept closed under a penalty. No liquor must be - ' 1 or
given to any per.ou in any such hotel, &c., on the poUin-r
day The words, "within the limits of such municipalif v"
may perhaps be redundant, but the word sn,k 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, A:c., situate in "the mu-
nicipalities in which the polls are held."
Adopting this conclu.sion, I am of opinion that Clark
was an agent o^' the respondent, and did, in violation of
section 66, give spuituous liquors to one Jordan in a
tavern in Oshawa, w hich was a municipality in which a
■"^I'i "\
442
PROVINcrAL ELECTIONS.
[a. a
fore, voi,, and ,,,„t,l,| L" ^ ^ .iil ' "" "'"=''"" ""» ««=.-
dofL:rra„;;:;'l-«»" ;;« f *« '^"' -^
cases: "ojecteu to a pwialty in ,|,,^,,
1. Not keeping the l,„l.,|, fe., „|„,„|
4: '"'"«'■■'""'"""'«-„,<,„., .,„,n, the HIin..
„^J«i™«,i.,„„H„ his tavern, *e.,.,„™,«,„p„„i,.
The whole three Rro »,„ i
-ittocl during thfhoTrs "tir^r ^"^^'"'^ ^^ --
«'e Logi,slat,u-e will remove fT "•■ P""'"'- ^ '-!'•'
,^^^^^ remove the doubts by a clear .statl
BURTON, J A Tho fK U
or some of them' the Lencv j^'f n-T"'"'"^' ''^^^ '» ''"
^'iving li,uor i„ a tavefnbv In r''"'' "'^ ^'^^''^^^ '^^
appointed for polling all invol'"?. "^^''"'^ ^'^'^ '-"-
placing a constructio^n upl.hr ' "'^'''^"''^ '^^^ "-^^
^•ebated 6Gth section of tl F ! "f "^' "** '^^^ '""^f"
Wf. bfl,l ^ • Election Law of 18G8
>ve had occasion to consi.J^.- th- .-
North Wentworth (ante n m, *^'\f «*'«» before in the
p. 3(32), and thei hell ' ttat 2 t'' ^"'^ ^'^^^ ^'"^'^
violation of the section b/ he hot 1 ?"" '"" ^ ^^^'^^
-de a corrupt practice bV the Aetoftr."'"' ^"^
corrupt practice havincr K. ^*^^'^' *^"t' tJ'at
ledge anS consent fTh! canJidlr '"''I "^"' *^« ^"-
no alterative but to deXt 1 '1 T'' ''"' *^^^^ ^^-'^
candidates disqualified But if f '"" ^"'^ ^"^ ^'^^
of the petitioner thl^hft^^ ^^.t^t.- ^^^ P^^
general in its terms, and is not Tk . ' '''""" ''^
parties aimed at or intended to I f "T''''"^ *'^ ^^^
part, viz., the keeper of any hotel. "^ *' ''' *^^ «'«^
spirituous or fermentedTn ' ^"^'^ °'" ^^^p in which
-H but extendsTr ^s^ :,^ ^^ "f^^^^
person within the municipality.
187.-).]
SOUTH ONTARIO.
443
ami that tho penalty iii.po.sed i« contined to the offence of
selling „r giving referred to in that portion of the .section
The clause in 4uestion, with .several others havinrr for
their object the preservation of peace and good onl^r at
election,s, is to be found in the 22nd Vic, cap. 82. That
to whicli 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 rlrinks are .sold, shall be closed
.lurmg 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 Sun.lav during divine service
an.l no spirituous or fermented litjuors or drinks shall be
Hold or given during the said period, under a penalty of
mo 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
wortls relating to the period of divine service are oinitteil •
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 clo.se a tcvern, 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 omittinff to clos,'. 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 impos.sible 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.
question for argument, instead of making U „i ,
«titute a senari^P nW.r. n , ' ^ P^'^^«"">l', con-
R 509). "• ^^"^'^ ^'"' ^'"^ V. i/,7/.-^.,,, (:j T.
I can see no good reason for holdinc. that th. T • ,
ture intended to confine ih,. r. u 7" ■^^"'•'^*^-
the offences enuineia ed in he «^ !> r '"?\""^^' '^^'
as suggested bv Mr T., / n "''°"' °^ *«»' '^ol'liny,
the /.:;,.; ,2 f:, ^J^;:^ ^-3^"-. tl-t the whole, vk
offence! complete "nlv in ti ''^ """^'^^'^ ^'^ '^"^ -«
being sold oft ven V ^^ '"" "^ '^"''"'"'^ '''l"^"'^
11), : convictirjor Ic "'^ " ^^"^'^^■'^'^ ^^^ ^- & t:
^^t:i:^^^J^^' '''"^ ^^'-^^^ *« ^i-it section
We so exprled ft T" ^' "'f '^^^^ '^^^'^ ^^^^ *«
the first part of H ?• '""^ '''"''^ ^^ ^'^ «« expressed-
keyto thiol Brir,'; °^""'^"^^ ^"^^ ^^-= ^'-
guity, I have alrl.I . "' '' *""•>' '^^"bt or ambi-
consLcttnof t^^^^^^^^^^ ^^at in the
Legislature intended t \ " ^' ^^''■'"•"«** '^^' «^«
common iaw fu^^r t an t ->^ -ovation upon the
The law rather in rs that our A T^ '^'^'^'^'y mnire.
any alteration otW I \ ''"'' ""'^ '"^'^"^ <^« '"^ke
-hat has b en n lain . '" "' ^ 'P'''''''''' ^^^' '--^^^
had had that dest^ ft is"?"n' ' '"' '' *^^ P^'"^-'-'"*
1875.]
SOUTH ONTARIO.
445
in mind that that word is to be found in the original Act,
wheie 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. 159 1), 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 where 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 tind
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 tirst portion of the G6th section
would be impracticable, there being no such exception as
is to be found in the English Acts in favor of the receiJ-
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 tliat in the construction of this clause
we shoUiil 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.
Ut).
enactment. VZ „' ^tX^II *^ /"^^^ -^ -
entially to pass such a LwT t '^' '"*'"^'^^ ^^f^r-
applied only to hotel and shop ke n ' "'n" '"* P^^^''
and fermented liquors ? ^ P""' '""'"^ ^P^rituous
EleetionLawofl86Si' hehoterori^^^^^
acting in that capacity • that h! f ^^ ''P'"' ""' P^''^""
son who is -uiltv of ; ' • , . ' *"'* '^^ ^^^"e, is theper-
additional penaS ^p .^ Z^^-fl? '' '''' *«^^'^'^
and whilst the investiS of t ^''^'" P«"-ff hours:
confirmed me in the cohv ^H IV^'' ^^^ ^^^'^ ^""v
decision of the CoultZuek7 f ^^ '''"'''''''' ^' '^^
the hotel-keeper of thi^t ^ '''*^ *^"* ^ ^^^^^^^n by
-sent of thfcandidlt ^Td ^Tj'l '"^^ ^^ -''
the petial consequences affilTl.!.'^''^"^'^"*^''^''
prepared to hold'that L a t^t o^th 'T.'^' ' ^'" ^^
«f a corrupt practice in CLI t" T'/^^ '' ^""'"'y
prohibited hours To V"''^^"'^ ,f * hotel within the
that there could be two ' '' n t ^' '"^ ^^ect to hold
^^'^- the statute ht tpordt^ o^e ''' ^^"^^ '''^-'
^^^:?t1^h^^;:~
of 1873. '^''"' ^^*hin the meaning of the Act
Patterson, J a — Thp
lalioa, of section 66 the 'iS"„f l °'' '''''^''' *"'«'' «» "'-
V agent, of the candXTu j:'I '° ™''T '"™
the persons in each p««o i .""^ng the hours of pollimr,
- tavern; the agentsTot ?' T'' ""^ '"^^ ^i"^-t
^nerely casual guests ^"^ *^*^ tavern-keepers, but
Tl^Sir;:Jt:oZf^'^--P-^^ely alike.
facts of the agenrand tt r'''"'^^^*«^^^
took place. ^ ^ *^' ^^^''' -here the drinking
1875.]
SOUTH ONTARIO.
447
It is contended by the appellant that under section 66
the giving of spirituous or fermented liquors hy 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 .spirituou.s
or fermented liquors or drinks shall be sold to any per,son ;"
or we must read the word."' 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
against distributing liquor on polling days beyond the
ordinary dealer in liquors. "We have, however, to inquire
whether thaf 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
>e.striction to be entirely unlimited have been well pointed
out by the learned Judge below, and they are of a character
■so startling thai it is impossible to suppose they could
have been in the contemplation of the Legislature. And,
besides th's, the clause, so construed, would apparently
be in confiict with section 61, which allows a candidate to
,##i«'
r:^i<i,!''t
448
PROVINCIAL ELECTIONS.
r^.D.
entertain a meeting of electors nf hi". ^ i.
polling day. * ^"' ''^" ^''"^^ «" the
I believe we are all agreed that this unlimited off...
canno be g^yen to the section ; but the learned Sf J
ice, whde he construes the prohibition as extendi': oln
persons, considers that the law is only violated wh'e^f
hquor :s sold or given in a hotel, tavern or shopTn ", J'
Lquors are ordinarily sold. I have not beenTwe
m the clause itself or in the context anyth n^wMc i^
poses this hmitation. I cannot fin.l ,.-. " 4 "'
course. UhinkthesetwoXire::;^^^^^^^^^^
either the keeper of the house alone isaimed'^lr
prohibit on applies a^ain^f nil v ' ^^^^
within fl. ?? P*''"'''"'" ^»^J to all places
witnin the municipality. i-"itL.s
The true view of the enactment, in mv iudo-monf •
that It s simply a re-e«actment of the foriLf,r 2;,-
without modification or with no modification hTt p
o any more extensive operation ; and I think thi app
whether we closely examine the clause itself or look e
where, as we may do in vain, for indications o an in I
tion to change the law.
All the other clauses in this division of the statute are
erbatim re-enactments of the former statute, exc p Ul
the penalties, while the old amounts are retained T,
iating as to criminal lr„w. °
Three changes are made in the seclion. The«rstchin»
Should be closed on pollin'^ davs " in th^ co
•i. 1 1 , , r""^"» >-''vn in tne same mannpr no
It should be on Sunday during divine service "-aTo i
•sion apparently made because the omitted words were not
applicable to any law in Ontario, but which ha no be"
mg on the argument now in hand.
The second is the insertion of the words which I ouote
n Italics in the passage, "and no spirituous or fermered
t/ie Iwuts oj mch mumctpcditij during the said period."
1875.]
SOUTH ONTARIO.
449
The c ause as it stood was, in its terms, general enough
to torbid the selling or giving of liquor anywhere in the
niumcipahty; 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 givin.r in their
Miscs, 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
uiodifies 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 change 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 drink«
aforesaid." It now reads, " under a penalty of i^lOO 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 ar<mment
however, is that because " the keeper thereof" is Sot 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
wo have to look at it in connection with and as re-cnact-
ing the other. Reading it by itself, and taking two pro-
visions separately, we have first this enactment • " Every
hot.-l.&c, shall be closed during the day appointe.l fJr
polling in thr. .,,a.vi,s .:,: municipalities in which the polls
are held . . t adex a penalty of $100." Whose duty does
his make it > . -'.lose the house ? I apprehend there would
i^e a sencus difiiculty in enforcing the penalty for ne-^lect-
ing a sta'.atory duty, unie.ss the statute made it the duty
ot some particular person. As f ai as the clause expresses
450
PROVINCIAL ELECTIONS.
[A.n.
aWec»„>,l™„ti„„ adopted, and that ZnH, ,ZT7°'
eatabhshraent is to be oIosB.l th.f . V" ""<' ™" .in
it shall not be opened amHht 1 'I"'™!'-* '» saying
wi.0 open it is ?he^C i , nde^d^'Ttl "*?""" °"'"-
object to analyse this contention tlte J It T,""""'
opened " or shal b Te ' do L"". "T'' *"" ""»' "=
found so clear that if a s'™* openTd « '7"" ""' '"
absence of his master fl„. , ! '^ "'° '■o°» m the
i-aity. M;ob:*;,tcr,ia;in:Th ■'«"*'"««.=
by the omission of the word^'i „ft 1 I "'T ""'
the Legislature have relied on TT, ^'"P" ""''^"f ''
language instead of us Z an e Cf,^ 7"f ™f™ »' *«
tend to other ,vords an eJeet"JlIh:,;tarr' w"-^'
to point out that bv ^triniUr ^ . • "^ * '^^■**^''<^'
fl..t part of it „ouij; trtrits ttTr' ";;
be made operative at all. it would be bv . , °'''
■ule of construction dependin" partly or„^'°' '° ■'"
and liabl. to lead to a wrong .Zj^ " P"^'™'''?"""'
We get rid of all the difficultv Iw I^^"i • ^
law as it was, where w. tinfZt wL I = 7' '' ''''
We then inquire has thp 17 I . '■''*'™ ^'^^ ^''"bt.
find that the Rwineeoto^t^" ^""^"''^ ' ^"^ ^^-
W Quebec, Jl! il^^r,^^^^^^^^
or desirable to re-enact the law r latinAo . T'T^
re-enact it, making such changes Is tlfh! T "'' ^^''
tion re,uired; buUndicatin;!,! i^t tLnTl '"^^
law except where that is d^ne n ewes? t "'"' '^'
in adopting the law then in W in E^^^I^r'T ' ^^ '■'
age of the Act in itself does not under If ^'^''"
imply an intention to change 1 "w . T"'"'*""'^^'
1875.]
SOUTH ONTARIO.
451
question being regarded as meant to be and as being a re-
enactment, with only such modificationa as I have noticeil.
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 effect as " under a
penalty against the keeper thereof, if he neglects to close
it, and under a like penalty if ho 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
liy 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
hy anil 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 oapacity, 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 tavf i-n-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
I
452
JPROVINCIAL ELECTIONS.
[a.d.
the tavern-keeper's liquors. He is to retain his whole
stock sa ely in his own possession. It woul.l sen
auity rule ot construction on which we ..hould hokUha
the Legislature, in concemplation of the tavern-ke.,„
d|sobeying he law by parting with liquor, meant to p-
vide against such disobedience by the further comnLl
that If he did so disobey, the recipient of the liquor Z
not give It away again under a penalty, and particularly
as no penalty is attached to the act of receiving it i
such an intention existed it should and doubtless woul,
have been somewhat more clearly expres.sed
The only other case in which it can be suggested that
9mn, a a tavern, etc.. is the act intended, iffhe le
persons bringing liquor from elsewhere to the tavern
giving It away. Th: •:« too remote a po,ssibility to r^Z
more than a bare mention, and no good reafon can
suggested why a giving of that nature .should not be a
offence wherever committed, as well as when comn itte,l
in a tavern or place where liquor is ordinarily sold
Gibbsld""!' *'?:''''■ '^'' "^'"*^' T^«'"^«' Clark and
^X!'' ^^"'^'^ '-'■ '' '' '-'^'-^ ^' ^™ - the
The same remark applies to a personal charge against
the candidate tor treating at Rays tavern, which seen, to
have been urged below, but which was not renewed befo
us as one ot the grounds of appeal.
It is not necessary for the disposal of the case to dis-
pose of the other questions discus,sed in the judgment
betore u, but on two of those questions it is propef t
we should expres.g our opinion.
[The learned Judge then referred to the agency of
Wiison, that he was an agent. He then proceeded :]
The other question relates to sec. 66 of the Act of 1868
?o^ In T 'T' "^ *'" '''"^^^'''' ^'^d treated one
ivern ' 'o l' l" ^""^"^ P'"^" ''^ '" Whitby, at a
avern in 0.shawa. during tho hours of polling. The
leaxned Judge held that tWs was not an illegal ac^ within
1875.]
SOUTH ONTARIO.
or
453
sec 66, "because the liquor was not given by Clark to
Jordan within the limits of the municipality where the
poll ot the town of Whitljy was held."
I think this is a mistaken view of the section, and that
the imstako has arisen from regarding the prohibition as
aimed at the treating of voters; and with that idea, reading
the Avords "municipalities in which the polls are held" as
meaning tlie municipalities in which are hehl the polls at
which tU voters who art treated are entitled to vote I
thmk It IS quite plain, not only that the object of tlie en-
actuient, viz., to preserve peace and good order at elections,
would be very inefficiently attained if open house might
I>e kept for all who were not voters of the particular ward
or inunicipality, 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 durin-. 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 leu:ned Judo-e
rested it, but upon the other ground wJuch I havr-
discussed, viz., that the corrupt act was committed, not
by Clark, but by the person who sold him the liquo.-.
The appeal should be dismissed with costs.
Moss, J. A.— The learned Judge below, upon a review
ot 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 m giving treats, althouc^h i-ot shown to be for
%,,
J!
454
PROVINCIAL ELECTIONS.
[A.D,
Hi
the purpose of influoncin^. votes, would have avoide.l th
election. Un further c„„,si.leration he seems oL
inc.^a to th. View that agency ,,., bee:*::, ^HI
the ca e of Thomas ; and I nn.st ay that that appea,-
mo to be he proper conclusion fro.a the evidence In
case ot ci.-k he .lecided that agency had Teen n ov^I
but he thought that his treating was ,^,. , cor 3 D
within the meaning of seetion^M-orreirt'^rer;
hall refer presently. But it is broadly u-^ued b ,
earned counsel for the respondent that. evL ass „,i'.
^-persons to have heen age,,., there was noZ"
practice, because section 66 of tl.e Act of ISfi« ;
•intencl.i to deal with the keepers^nlll,"^,;:^
shops in wh,ch spintuous or fermented liquors I 'II
arily sold, and to prohibit the sellin, or givin. f l"
by persons answering that description. \t tha b
rue interpretation of the section, it b.oomes imina o
to discuss the evidence of agency. 0„ the oth r han
IS contended by the counsel for the appellant th'r h
section ,s divisible; that while the till ,j\^:^Jl
keepers of taverns. &c., alone, the second xtends t a.
^cU.s peplthe,ivingof li,.or by any pe::':^:^
person in the electoral division during pollin-. day • an I
hat consequently, if ,nven by an agent of th^ aljU
during the polling hours, the electio'n is avoided by
of sections and 3 of the Act of uS73 (36 Vic, cap.
The words u,,ed are certainly of extreme generally
contention. But there are numerous cases in which Ian
stances which the Courts have held fitting to be Xd
m arnvmg at the intent of the Legislature. [The i:a n
Judge here c ted and reviewed the'following author :e
V. B cstmmster Local Board of Works (L. R. 7 Chy .597, •
Sedgwick on Statutory and Constitutional Law, 234] '
1H75.]
SOUTH ONTARIO,
435
These roforences are autliority Hufficient, not only for
the proposition that we should regard the terms of th(i
enactment for which section 6f] was substitufod, hut that
we should presume that the Legislature onK intended to
clmnge the law to the extent that it has - y and posi-
tively expressed. The fiOth section of tl ,ute of 1«6S
was substituted for the .S 1st section of i, • Consolidated
Statutes of Canada, cap. G. In each statute the section
forms one of a giuup collected under the heading of
" k' [)ing the peace and good order at (dections." Some
dou'>^ has been expressed whether it is allowable to refer
to this heading ujion a iiuestion of the proper construction
o:' 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 tlim'e
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 charact.r. In Bri/an v. CIiiM (.') Ex.
;^08), Pollock, C. B., refers to the mode then "recently
introduced in statutes, namely, by having certain clauses
connected In 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 I)e 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 purimse :)f keeping the peace and good
order ;it (dections, be it enacted," &c. In Robinson v Col-
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 n)' peace and good
order ; and that the object was still tiie same when the
corresponding sections of the statut of 18(J8 were enacted.
IMAGE EVALUATION
TEST TARGET (MT-3)
1.0
1.1
11.25
U|21 §21
m ^^ ■■■
^ |££ 12.0
1.4 illlli.6
phic
Sdaices
Corporation
23 WIST MAIN STUET
WEBSTER, N.Y. MSM
(716) •73-4303
f
'i
456
PROVINCIAL ELECTIONS.
fAD.
Am.r.l,nK t<, the principles of construction to wl.id, I
have refern,,!. we ou.^ht not to a,ss„n.e that the Le^isl^t ,
Mnch „. the associate clauses was .v-onactin, the 2;
statute. conten,,lated such a wide extension of th
- IS contended fo.- l,y the appellant, unless it has „
language clea.y expressing that purpose. How wi.Ie I
t^'TT ' V' """''''^^ f— e.xan.inati:>n
the «l.st .section. There is no roon. for douht as to tl,
.loscnption of persons who were aHected l,y its pt v .
It enacts that every hotel shall he clo.sed'an.l n ^
ousonen„ent.Ili.p....,.a„,,,,,,, j^.^,^^,,,J^^
-..I penod under a penalty of 8100 again.st the C^,
hereout he neglects to clo.se i, and under a like penal
ambiguity The persons suhjected to a penalty for givi„.
or .selling hquor are the keepers of the hou.se.; direct ^
bekept closed. In the statute of IH.H the ^:!^^
--except in .some particulars i.u.naterial to the prein^
arguiaen -precisely the .same until the part relat^ , tJ
the ,>enalty is reached. The injunction'to k''f h^s
and the prohibition again.st .such a gift are e.x > L^^^^^^^^^^^
^r;';:i^r " "" r ^"'^^^' ''' ^"^"' *■- '^^-^
wi h t in ," "'"' "'''^'"^ *''^«^'-''-' ->•' -incidin,
with It in the corre.sponding sections directe<I to t\Z
S ' ;V' '^ '""'r'-' ''■''"' ''^ comparati; y n.-
one le of keepers of such houses to the general body of tT
pubic. 1 Ls ..imply becau.se in the part of I 's 1 1
relating to the penalty there is no deHnition o th t
sons who are rendered liable. I entertain l^Hl. 1 '
that the draftsman who penned tl.rc^rs ^ti^^
tZl suUstituting the words, -under a pendt •
tie Hist 7 '"u '^ '"''^•" '''' *''^' ^>^*«»'te language of
the 81st .section, he was expre,ssing the same tldn/i„ u
n.ore conci.se form. It may be that in aiming la 1 tt
.eunty, but such things have been known to occur in
Acts prepare.1 by skilful and experienced hands.
1875.]
SOUTH ONTARIO.
457
Regarding the fiGth section as it stands, it is necessary
t(i supply l»y constniction the designation of persons whose
duty it is to close th'i houses. The reasonal tie 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 Uie first clause of the section, it appears to
nw that they should etjually be introduce<l into the si'cond
clause. For my own part, I prefer that construction to
one that virtually .seeks to introduce into the .same clau.se
the words " by any person." The inconveniences of such
a construction, some of wliich have been graphically
described by the learned Judge below, are in themselves
sufficient to induce the Court to pau.se liefore adopting it.
I do not repeat the other constructions which have been
presented l>y my brothers Burton and Patterson, in con-
tirniaticm of this, view, but content myself with saying
that if this be the correct view to take of the .secticm, it
follows that it is only violated by the giving of licpior,
when the giver is a keeper of one of the hou.ses directed
to be clo.sed ; and that no agent of th'! candidate will, by
giving licpior to any person within the prohibited hours,
lie guilty of a corrupt practice avoiding 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 lirother Patterson upon Clark's case. If his treat-
ing Jordan at Whitby, where Jonlan 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
Oshttwa. The offence does not depentl upon the character
of the person treated. It does not matter whether he is
or is no(< 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 caie waa aent to the Speaker,
4.")X
'•HOVINCIAL ELECTIONS.
[A.n.
MUSKOKA.
BeFOKE Mh. JlSTICK WlLSO.V
BlUCKIIKIlMiE, illthto :.!,■<! .lulu „„,//>//, V. .
BeK(.HE the CoCKT vv Al'I'KA,
Anohe. Sr.u,u,-r. /v/.w. v. ./o„x a m...u«.
liixjxjiu/cnf.
The rfHpnii.lf.it wan timriru.l with
liiif nM ,.,.1 1 •" ""-"""'"' nave to
rat, ehargen prove.; a«ai...t tll^ ri;!!,Zr''''''''-'''' '"-" '"^''^ *'-' -1«'
on theeviflonce in o"e o,^^£l' ^ ''"'l-^'r """-•t;"'--"t, a.ul i*
jn each of which thHS^i^r^^^""''^''-'"' '=^''''l^'^'--
fore the seimratn ..|.„.., ' l^V..""';'' "* 'J ""'"''•r conch.sion.
f I...
■'It
I,
«eJnre«peettoapp...pri,ui;;;::;:^~;;t:
I or not
!'•"«« '"• «- >y".e.rt, to or f"?r a v v C/'r''*' "■" " P''"'"»e to 'procure
H.-ch voter to vW-. o,' refraii. f,".?. ^"t^, i""*"^ """"• I'^rnon to'inJuoe
„ . ■ •• -^......i from votiiii/
— (reversini; fVi/.iin .j i 'pii-if fi, f
i"'l..^-"ee,«.,leHne;i 1^^ fl'o thl^ErA"'" i":* ^'"^^^ "^ """'"«
■;- y the conuno„\.w of tL'lUilr .Tt ^f^l^.'^ S " ""^ ^ ■-"«•
-t«ope.Uion«U,atthefreeC^:^-ir^^KS.S-Sr
1H75.]
MI'SKOKA.
450
tlmt in election eaoes,
Mr. )f. C. Cmiirroii, Q.C, nud Mr. IJrnff for pt'titioiu'r.
Mr. D' Alton McCnrt/ii/, Q.C., and Mr. Jlthintc for ro-
spondent.
Till' cases (|ij|)ost'(l of liy the leaineil Jud^e lire set out
ill his Ju<lgiuent.
Wilson, .1. — Tlie ease was veiy fully aixiieil liy the
counsel for the respective parties. It will not he necessary
to refer to any other of the ciiarj,'es than those now staml-
i"n f»>i".i"<l,t,'"iL'nt.
The first of the c»ises relied upon hy tlu' petitioner is
that which is calleil the Hill case. The charj^e as to this
case is ihat the respondent proiiii.seil and ;;uaranteed the
said Hill that, throuj^h the respondent's intiuence, he
should never he called upon to pay certain timber dues,
if the .said Hiil would support and vote for the respoml-
eiit. [The learned Judge then reviewed the evidence of
Hill and of the respondent, and proceeded :] 1 her*! is a very
plain and direct contradiction between the two accounts
of these two witnesses. The fact whether Hill or the
respondent fir.st spoke of tho dues .so claimed by the
(iovernment may not be material. It does not appear to
iMiof much consetjuence who first introduced that subject,
or at what part of the conver.sation it was introduced.
The main question is, was it, whoever introu.'.ced by, or
at whatever stage of the conversation it was inti-oduced,
held out in any form by Miller to Hill as a promise or
endeavor to procure any money or valuaVile consideration
in order to induce Hill to vote or refrain from voting?
According to Hill's evidence it manifestly was; according
to the i-e.spondent's evidence it certainly was not. There
is no other persor. who can .sjjeak as to the conversation.
The counsel for the petitioner argued that the fact of the
claim having been made by th'^ Covernment 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
PIIOVINCFAF, ELECTIONS.
m
[ad,
For the re.sp,„„lt.„t it was ar.ruu.1 that Hill i.. M v
«l.<.w,,l ,l„.v ,„„|,| , * f ' i" ' "'",'" '""'«"^ '■> it, ->l,i,.|,
'"•■;;;n-'- "• pen:::;;;,tu:\':;:;;::''-"^'"^''"'
.ci .V I *"'' ""^' ''^'^"'^^' '-tl. Witnesses I
we i:.^'rT ''" r'"^ "^"" "^'^' - "• »-•--•
in a ca.scMrt ev^^al t^rlT";'-. '"'" '•"'^""''^"'^'
is entitle,! tn H ^ counterhaianced testinmny,
IS tnt.tie tothe presumption of innocency in his favor
^'ZTl " ^'T: r ^^'^'-^ -. on li -r,:
are still ttcl-E TZ "" ."""" ^'^^^^^'^ ^^"'•^"
thui fi C"»s<(ieie(l ; for jt ,n the other cases I fin.l
w»«- lespouuent, tile same witn»*wM i"ii oil * n
ou,u,c witness m all of them as against
1875.]
flrSKOKA.
4fil
■several witnesses — one, however, only in each case — I
mIiouM tlien feel oltliged to rely more upon the impar-
tiality an<l truth of the greater numlier who testilied
a^'ainstthe respondent, and whose eviilence and characters
were respectively, for reliahility ami veracity, as nnjch to
k' depended upon as were those of the res]>ondent. I
have already stated ni}- opinion on this point in the mat-
ter of the North Riufrew cmv {u), in which also I acted
upon it.
I shall .state the conclusion I have come to on lliis
cliai-ge wln'ij I have },'one over the other chaiges Kufore
mentioned. I shall pass l»y for the present the duuxe
ri'spictin;,' the speech of the respondent at Matthias' Hall,
and take up the charjj;e relatiiiff to Sutierin's case, in
which the respon<lent is charged with ortering, that if
Sufferin would support him, he, the respondent, woidd
•iet him the la\ ing out oi !«.S,000 on the F'airy Sor.iid
Road.
The respv >ndent'.s counsel contended that it was ahsurd
to suppose the respondent would, in the short space of
two or tln-ee minutes, in a hurri(Hl interview, makt' a
forrtipt piomise to a man who had already pledged his
support to the respondent. There is no doijlit it was
not a long conversation which took place between them,
hut they hoth agree that there wa.s mention made of
Sufferin being about to run for reeve, and about the ex-
penditure of the S:},000 being made. The jjarties difier
in these respects : Suflerin .says the respondent applied
to him to give his support, and that the respondent said
he heard Sufferin was going to i-un for reeve, and that lie
wished Sufferin to go in for it and to support him, and
that he (the respondent) would get Sutierin the laying
out of the S'J.OOO, and that Sufferin said it was all ri<rlit,
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 town.ship ; that he, Sufferin, .said he was
(a) Reported Dominion Elections, 1874, po»t.
4(J2
'!!
liiL
J'ROVrNCIAL EI.ECTfONs.
f.v„
Koin^r to mil for i-yeve An,I Iw. I. 1
-i. t ,„ " ' ;'!«■' ■",'"""■' "■''''•• "■•■ •■ ■
of tia. ,,',0,4 "'" "'"""' '*' ""• l«.V"« •«..
•Tne stnt('iiii>Mf. of w.,a
■■'■»l.on,l,,„t i, i, „ ';" ™"'«; ""■ -'"''""'■nt .,f tl„.
mf"t of S, 1 „ " • " •'"' "'"' "■ ■f'"^ »'«■■■
Pivm.,l l„- SuttM,, i'."'"""''" "l'""'" « 1.0|K. „„|y „.
iH.->„„i ;„„„e™,; . ' x:,:,''>- ■^'-t'" »-'
tlie appropriation Imt a^ fl... 1 '"'^'"- '""
' comint „Hl.,. „,. ,,,„„ ,'";"■ "'" "ni- »tatei,„.„t is
tioni,.. i °„ •,"""" ''''''"°' "''l'l'<'''"''l'^--''>'-
»«v„,.„| v„° \ ,' ,!,""'"'■ "'"""'™' i» a ■■"-■■■..■ l.o,,o ,li..
-n,li,iat., tail! •,'■■?"•""■'' ''^ "«= voter to th.
a"o«-o.: t.; a^Cn-rr :::;:;'•' -- "- «="»«" «-
oaJ!,Seri,r„;::;^,iSrat''^'°t ■«"'-'
charges, if .sev^lh ,^' . , P'"""'^^- ^"* *'^« ^th*^'"
the united Sof r,^'^' ^"'^••'''^ -'*"-•->
ertect of th ton lent ""^' '^ '^ ^^'^^'•«-"« *J-'
lespondents unsupported word, I may l,e
1875.]
MUSKOKA.
4)).'{
e convursa-
(il!lij,'('(l to attach such ndegrw of iiiipnrtuncc to the cohi-
tiined testimony of tlu-so witncsMos, as tolioM tlit- diarcfs
to wliieli tlu'y si-vorally speak as sutfioictitly piovi-d in
iiiw, aj^ainst tlu' opposinj; tcstiiiioiiy of the rt'spoiiilciit. I
■iliiill, lit'foit' foniiiii<,' any opinion on this {)art of the cast-,
oinsiih'!' the otluT loniainin^ char<,'(' of the like j,'eneral
cliaracter, restinj.' on the eviih-nce, also of one witness on
tneli side, which is contained in the next ehaij,'e relating
til Barker's ca.^e; the witness for the respondent l>einj,' the
respondent himself as in the two preceding,' cases.
[The learned Jndj^e reviewed the evidence in the char^'e
ivft'ried to, and (K'ciiled it was not pi-oved.]
The remaining charge is the one relating to the respond-
ents 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
lie said.
His own statement, especially when it is adverse to him,
limy he accepted as a genuine account of his language.
The respondent says he used the words following: " I was
the recognized ministerial candidate, having Iteen nomi-
nated by the Reform party. That I undeistofxl it to Ite
the constitution 'I practice here, and in Kngland, for the
Mini.stry to dispense, as far as reasonable and practicable,
the patronage of the constituency on the ieconniien<lation
of the individual who had contested the constituency in
favor of the Government." He .said, " I did not shite 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 nie, and I would redress
the grievance complained of, if elected." The resj)ondent,
although not now in words, in efiect shows he did say or
gave those at the meeting to understand that he wotd<l
have, as the (Jovernment or mini.sterial candidate, the in-
fluence or patronage of the Govenunent in the district
whether he was elected or not, because, he .says, he told
liteaiji
464
PROVINCIAL EI.RCTIOVS.
tt-
«•
[ad.
tli.'iM h.. nM.I..r.st<MM| tlu. niactiou wan " tlmf M. u- •
: '" "'r'- ""■ I"""''"*."' "f Tc,, t, iov ;;;;r
-:;;--"-v ^;='«M:::t;;::::':;;t;::
l'<'"t. . I.it .,n tl... rm„u.ne„.lation .,f tl... un;uu «
ot u. wonls. wlu-tluT Ih. wa.s ,s„m..s.sf„| or n„t
n.ll. one of tlu. mspon.h.Mt's witnossos. says- • Tu
;"■'• H.„ ..xt.nt Millo.. .sai.1. as I „„,,,.,., .,1 l.in. . ,'
•'•.M^' tlu. .supporU.,- of tlu. (;ov..n„„..nt. h. wou i .
t a. patronage, whothor h. was dcct...! o.- „ot." „
u- uas the (.overn,.u.„t can.li.lat.. it was tl... i„t..,...st „|
h.,.opl..to.jpporcl.in.wI.tlK.Hu.was.U.eto.I ,.l;
I at lu. wo»I.I I.av.. the patrona.. an-l Mr. Lo„. wou I
not-he was not the Uover.uuont can.Ii.hit. "
A.s,s„„u„y tlu.„. that the respondent ili.l use s.ul,
u|.ua^ a. c.n the occasion spoken ofJ.it a: :h:^^^^
^Mt un the Election Law. or is it an act or the rK.vvUr of
"nd.e „.m,enc.v. reco,ni.e.l hy tl. connnon I,^ Tt
Par luunent ot England." accor.lin^. to the 'M Vic c >
uWtb. ot any place or en>pioynu.nt. or a prouns; ,„
p.ocu e. or endeavor to procure, any place or en.piovn.ent
I vI:t T' "■ T.^"'^'' ''"•^^"' '" -^•-•' ^ ^' ''"''■
^^as, „ eftect, "I a.n the Uovernnu.nt candidate, and 1,^-
cause I an. so. I .shall have the patronage and inH::!; ' i,
the Governnu.nt as to appointnu-nts and in the layin.. o„t
of .noney appropriations in the district roads, and in tl
appon.tn.ent of overseers for such works, and I s al ha •
only o tl 1 r f T '"' "" ""'"'^ P"^«"'^' ''"' --'-t^
only of the district, receive such appointments." I think
1M7.V
MISKOKA.
4({:i
it is not iin ottW or pi-omist! of any plnco or fiupluynifiit,
or ft proniiw to procure, or to umivavor to proc-nrt', any
pliict' or «'nipl(»ynit'nt to or for any \<>trv or otlu-r pt-rsim.
1 think it is not so, hccauHf tin- nuniltcr of ovcrsfurs
ill tin- district wouM Ik* coniparativfly siiiall for tin- t-x-
|)(ii(litur»' to lie niadt; tlicn-, ami tlw promise, if one were
iiiftili', was not exclusively atlilresseil to tliose present
at Mattliias' Hn\), liut to the whole constituency. If the
respondent liad said tlie district was aliout to lie formed
into ft county, ami a sheriff would have to l>e appointed
lit once, and he would have the disposal of that oHice, and
he wouhl see that a resident of the district would <,'et it,
! think it could not properly lie said that the respomlent
had ottered or promised a place ir employment, or had
promised to procure, ttr had endeavored to procure, a
place or employment to or for any one within the nieanin;,'
of that section of the Act.
Tlu; expectation that each one of the constituency would
form or mi<,dit form on such lftii;,'ua^M', would lie of the
vayuest and most indefinite kind. But if the respondent
had .said that 100 or .'»00 men woulil lie reipiired for a
jiarticular 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 shcmld he employed, and that he would have
that patronage whether lii- wa,s elected '•? not, 1 am
di.sposed to think that such a ca.se migl' .^e hrought
within the operation of that section of the statute. For
although there was nothing a<ldressed to any particular
100 or 500, and the persons to he .selecteil could not then
he known, yet the great numlier who were to he em-
ployed would attord .some ground for each person sup-
posing he might be one of so numerous a body; and in
that way, although the otter or promise were not made to
any deHned 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 rai.se an
expectation that the promise so made would be or might
8.
4(1(1
I'U.ivivriAl, KI.EcTloNs.
(U.
lilt^-
- t..|.ill...| to ..a..l. on.. i„ hi. own vnsr. A ,,„„„i... ,
^"?' "•'•;"'•'••>• '-t MHu.in, wl.i,.!. on,.. w< .M n ,. ;:
-.p.yon..ofth...nwo„I.|.in.n, i not . ! ,'
'■•• A.-t. n tl.is .|iH„.i..t tlM..v wnv'at l.-H^t 1.4.)(,
I-'- '''7' :"'"''''^'"'»"''''''''^' •-•••--•-. •'.•«•,,>;
;••• -'-'V -k fo.. o.. tak.. ti.,. om..... I „nlv eoni.. n
-•'•haps tlu.n. w..,v .s,.v....al l.un.l,...!. an.l as'tl... ..
".e w^s not very lar«, (i «... ,.,„ ,,„.,. ,,,„.„...;
;;;; '•■• •'':j|'^Y "'''''"■"•' •'^•^'^ ->»'•' -t..;
"•'-""- ""• -lata a,v not ,Mv..n to nu. to ..nal.l.. n •
sa..thunMu.c.nra...|,.:,,tIWn., n.ason to X^^^^^^
hat, act,,.,, upon thon.!. which . hav stat...!. th. '
X^iJ. "ur:::.;;;;;'","' ^" — -i^'-i-:;.-
I I ui. Alt ot an offrinr |,r.Mni.s.. of any kin,l
■,.,.,,,„« pac,. ,„.,.„„.i.,- t, „,,!.,, ..,„„,, „,:^,, ■ ,
Ilu ,, I,,. ,,„. ,. , , ' ' "" """""'""K I" un.l..,. i„.
'nunc I (ij tIK' i*cH[i<)ti(lci)t.
Th.. 72n.I s..,.tio„ of th,. Act .Icfincs what is „n.|„.. i„.
"•••:-;: "";••• t'-Ht Act: .•Kvv.y p..,-.,, who shall .ho-
;'Y';;lnvcUy. hy hin.s.|f o.. hy any oth.... person t
;;-»;"'t ".ak.. use of. o.- th.-aton to „,akc usc'of. a v I,
;;:r'^'''^*""r''''''«-^-'-ti..vatcnthcinrii i :
"...Hclf o.. I,v or th,ou.M. any other person, of anv in nv
' a.na.e. i.arn. or loss. .,r in any nlner p..ct e S'
. «t.on upon or a,.un.st any person, in or.l r to in. ;
n.pel such pers<,„ to vote or refrain fn.n. vot .r;'
sl.ali Ik. .leen.e.1 to have connnitte.I the oft-nce of m, h u'
H.Huence. an.l shall incur the penalty of X200 •■
Can the case he l.rou^.ht within the tern.s just quotcl
ir^:: ^^•^-r'^"-^''«''yth^i^,;:r;^
• • '"ake use ot . . any restraint . . or in anv
.--K.r p..ct.se intin.i.latio„ upon or against an^ ;.
... ouler to mluce or con.pel such person to vote i .Ifrain
1«7:..]
MUHKMKA.
4(17
fro... yotn.K • • sl.all U. ,1..,.,....,| t.. l.avc c..,..,„itu..l
the ufloncc. <,t un.lu.. influ..,.n..- Tl... wor.l rr.ir„h,„/ in
ust-l, It will Ik; soon, in ,uM.».ctior. with Jhnr or riolnur
an.l H<. may Ik- .soi.l t«) inunri some physical rvstiuii.t. Hub
mninn has I...,, hrl.! n<.t t*. Ik,. conHiu-l t.. in.licHti„Konlv
iHHhiy .n.|u.y. Th.- app.vh.nsi.m ..f Ihm.,^. ..xd»,l,..| IVo.h
tl... yac-.a.,„.,.tM of tl... oh.uch, an.l th.. ..umurv .,f ,.t...„al
|.i.nisl.i...-nt,n,i^.ht Im.. fa.- n..,iv powo.fnl than any th.vat
ot cM„po.al punislnnont. Count,, of Dnhlui a,.sr ]h27
(EHpnmss,. :,7, u„f.). S., r,,(r,u,>( .hx-s not ...ran only co,-
p<Hal co«Hne...,.nt o.- the ft-ai- of ho.lilv hai.... Takin-r
away the will of the pe.-son hy thivats' or l.y in.p,„ne'i'
■*•"* "*■ '"'y •*'»•' n-'t willin^rly assente.! to l,y tl... per-
^.... I..it iM-oujrht aho.it l.y the exe.'cise of antho.ity o,
l.y fear, oi- appi-ehensi,,,, of |„s.s of any kin I. n.ust he u
n'stiamt. K is sai.l to he, to keep fn„n action l.y any
"'■.■.ms ; to hol.I hack ; to I...M on ; to curl., cheek, repress
roeic... constraii.. .lehar, piev.-nt, ahri.lge, hin.ler " I have'
I.ro....se.l to n.(r.,u, hi,,, h.irtinjr any man's reputation"
-A.Mison. Constraint ( Worcester's l)ieti...m,-y) ivspects
tl... ...ove...ents of the I,o,|y only ; lest.aint, those of the
m....l an.l the .mtwar.l acthms. The conduct is restrain,..l
l.y particular motives. Restraint is an act of power • re-
stnct is an act of authority. " The will or the actior'.s of
the chil.l aie restraine.l l.y the parents."— Crabbe's Syno-
ny.ns. I refer to the leailinjr cise of Hiu/nadn v. Basvln,
(2 White k Tu.l(.r's L C. 4(52) fo,' a very full an.l a.l,„i,al.le
exposition of what is undue inHuence, ami the variety of
ways in which it may be exercised. I think language
may be ad.lre.ssed to a body of electors which, by a par-
ticular person, may constitute a restraint upon the free
action of the electors.
N.nv, what I have to determine is, whether the languarre
m (juestion can be held to have been a restraint up'Iin or
against any person in order to induce or compel such
person to vote or refrain from voting; or whether it can
l.e said the respondent, by his language, in any manner
practised intimidation upon or against any person for the
468
PROVINCIAL ELECTIONS.
[a.d.
•ke purpose ; or whether it can be said to be an act or
^e exercse ot undue inHuence recognised by the conu .^
law ot the Parhan.ent of En^dand, within the meanin,
ot the statute. Too n.uch ,strictne.s.s n.ust not l>e inn ,1
upon election speeches. It is said "a husting's speech a
fZ:, G " ' T"'"; '"'• "---'*y'-Free.na
Bedeial Government, p. 8:]. But that will not sanction
any h.„g beuig said without any check or restraint
When the respondent made the declaration he di,]
which as the .subject of this charge, what was its natu '
purpose and nnport ? It was to show the electors thl '
under any c.rcun.stances, he, the respondent, woul.l ha •'
the influence and patronage of the Government in t
eh3ctora district, and that he would distribute them amo...
the residents; and that under no circumstances would U
opponent have any such favor or influence. The effect
that was to draw votes to himself and to withdraw them or
keep them froiii his opponent ; and it is a fair condul:
hat the respondent intended to bring about such a resu!
I think that IS not a fair or warrantable course of ai-n,-
ment to ake; i does interfere with the free deliberation and
choice ot the electors of their candidates. It is madeZ
less to struggle against the influence and patronle • :
Crown so to be exercised, and useless to vote fort In i-
date who IS m no case to have any voice or influence L
such matters m the constituency. Whether such langua. e
will operate upon a large body of the electors, or^pt
wha precise number it will operate, is not ,so much t
question. It will undoubtedly operate upon some oJ th
especially in this district, a newly .settlecUparselv peon
newly settled, and because the labors of the peonle ar.
ot a home for their iamilie.s. They have not received and
are not recemng the return a. yet of their labo Tl^^
afdlt'l : ; '""VT ""'^ *'^^"- ^-^ -munerativ
and It was designed to operate upon them prejudically
1H75.]
MrSKOKA.
400
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 supp<irts
the Ministry has selected as its candidate. No one thinks
tliat 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 hy parliamentary pra i he
would have the influence and patronage whether he was
elected or not, alters the character or the force or eft'ect of
the language.
It is the fact that the Mini.ster in his department has
the patronage of it, and that the contractor has the choice
of his workmen. And it would not les,sen the objection
of their holding out what they couhl 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 powei-, and it was the practice to act on
the.se matters as they pleased — the Minister by custom
of parliamentary practice, and tlie 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 of the parlia-
mentary practice in such cases. I consider that, fairlv
interpreted, to be the exercise of undue influence,' not o'f
Government influence, but of influence in the name of the
Government by the respondent, and if it be not that, or
do not mean that, it means nothing. But I have no doulit
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, wiitten or unwritten, is that every elec-
tion must be free (2 Co. Inst. 169 ; VV. & 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 : Lkhjuld case (1 O'M. & H. 22) ; Bradford case
(1 O'M. & H. 30) ; Beverley case (1 O'M. & H. 143) ; Stuf-
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 tending to sap the basis of this free and happy
constitution." — Rogers 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
%■
4,7%
PROVINCIAL ELECTIONS.
[a.d.
be the re.su t of the election. The powers of office are not
^ oe used in the contest, and whether they are use ,1 v
a Mmjster or a friend, ally or supporter of the AlTntt
The exerc.se of that patronage and influence by del.^
tion o a nnnisterial supporter is quite as effectu^to
operate perniciously on the freedom of electionsas it t
powers were exercised b^ the principal himself. I en,
difference between the Minister saying to the electm-I in
an electora district in which there'are' Crown lands
valued tor the settlers. "I have the power and patronage
of the valuation of all your lands." or. "I wiliwl
valuation of them," if said with the intent undul
influence the election in which he is a candidate or the
by rLson '/;''"? ""'^ '''T''''' ^y'^-S the same thing
by reason of his being such supporter and of his contest
mg the consdtuency in favor of the Government, if s^di
applies to language of the like kind addressed to lumbC"
men with respect to lumber dues in their impositionrni -
sion or otherwise, and to the expenditure of Gove;«
appropriations in the opening of roads, or in the perform
ance of other public works ""« periorm-
I am obliged to find this charge has been sustained.
th.«n i"""" 'P^'' '^ ^^' ^^h^'- charges, relating to
he alleged remission of timber dues to W. J. Hill, and to
the appropriation by Sufferin of the road mone; in h h
town^hxp. These charges depend not so much on th
credibility as upon the weight of testimony and 1 1
speTt ;Thf '^ in *'^ ""^ ^*" *^« Pe^i Wr wit Z
rthetunT'.T "^'T'^ ^'*'^ weight of testimony
by their united force, and partly because they are to some
1875.]
MUSKOKA.
473
iy are to some
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
(lay, which it is not improbable the respondent used as an
argument on these occasions, a 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 hav3 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 ari.sen here. I am bdund 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 d<J 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 thinkini? of- hnf *i,
«rl< ; I am „„. an^eLb,.,; The™ Th If r;1 '"^
way regret if the eo„el„,i„„ I J L r„r If "' ""
to should not be t.,e opinion o, trhigtrtS '" '°""
^The_ respondent thereupon appealed to the Court ef
Mr. D'Altm UcCarthy. OC mid Jf, km ,
lant (respondent in the petition) ''"'"'•
(petio* S ''"'""■°"' *''■■ """ ^'- ^-"^ '- -P««J»'
.^er^^-^E^-— 3S11
and the petition dismissed. »"owe.i
in T Xrl7 *' ''^ '^".^^ ^^^^^-« -- 1-d down
m rn. iVor/A Henfrew case, which was referred to «n i
aced upon in the present case, with regard To '^7
entertain some doubts- and I do nnf ux ""^^ ^
now ffiven T Am «<.* a -J ^ ^ *"^ judgment
« cien' dttire'tiy :tr TeX : "■' ""■"'■.
charging any corrupt pLtr'tte " ^Vin' a "°"
tte;«„rptf:"r""''^"-"^ "'^°"
tne presumption of mnocency to turn the scale in his favor
Now the question presented in tl.e present case's whX
the evidence can be said to be so equally balaLId lA '
render ,t necessary for this respondent to'^^r v ke the a d
of that presumption, or, on the other hand, to enti le hi n
o It. It IS pu in the judgment in the fo low ng "hap
The question is. whether the evidence can, on thfs ecord
a d tnet Jal^'f "^'"° " '^ ''^^ ^^ ^^
Th„. n i f •^"'*^ P'-es^'nptions of law and fact
That will depend upon the other charges which are stm
1873.]
MUSKOKA.
475
to the Court of
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 Hcnfrevj 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 ma^'- 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 Renfrew 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 hhnor
separate point-the n.ore is our conHdence in thaf ,'
tr& hetory witnesses, we may be induced in effi^nf I r
'^oheve hin. altogether. It I difficu t t ^I ete that^"^"
many are wrong; it is easier to believe thaTonll ''
HO .nany ti.nes ; and the more there are who '-^ '^
him, the more we are led to bePeve thatlJ'T '^""^'
is in the wrong ^^ Jf ' eve that he ,s the one who
vviuu^. . . . 1 he question of verftr.ifv-1.
H ;» upon *e .■ua,i:;:;::''ewir;LtL';t:tr
determine th..t (lualitv " Tn fi, i- 7- * ' ''^ *""
respondent, although it was exoresslv 27T1^T! '
case stood alone if would havrS dtl'l^r
way. In one case the learned Jud^e saiT " I l.u
I have already .said of ofh^r ..l,o f ,' ^''"''^' ^^
the pemio„e/«ti:w:r.ht:x\ ::tttn"-'
one of a sei-ios of cha^a each oT^f ■ "u '■ " " "
have no reason whatever to doubt the truth of Th^r
specfve witnesses who maintain these charges '
qu st'r 'onl "' rr'^' '''' "^^'^h deals with this
question. On an indictment for periurv the oaf h .f f
(i'^^Tindal r T '"PP^y *f ^P'^-ce »* a second witness"
M^ ^maai, o. J., i?e^. y. Parser, Car. & M fi^Q^ T« ;>
ness was not .tffl TI' ^"^*^"dg«' J- held that one wit-
iurv ^ZTL ""^ ^ '"•'***^'^ ^" indictment for per-
J-y. that th.s IS not a mere technical rule, but a rule
I.A-V*
1875.]
MU8KOKA.
477
founded on substantial justice. The facts in Rrg. v. Porhrr
are worth noting : A debtor had made atfi.lavit that lie
had paid all the debts proved under his bankruptcy except
two, and in .support of an inilictuient for peijury 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 pro.secution and tlie 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
again.st him in his favor, but also the maxim, applicable in
civil as in criminal ca.ses, " semper prestimitur pro ncgantc "
(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
47s
PRovrvcrAL elections,
[AD.
was nothing in he evTdt r'^;,;"'^ ^•^P'-^-'y that thon-
'"anner of Linl it 'tl ^ , ' '•«''P«"''^'nt. nor in tl...
eion whateto/I^ait: fpStlS ^"^' '^"^P'"
con.n.enting upo; the evid^^Xh'^'Ht'^^^
It 18 clear that he had nn^ f *"'' «ufforin,
»i.mio„ of thei.. :„.„i:f x°' ii:7''^ "™-'*
tlieir conduct a, di,clo«,i l,v tl , '<«''""°>>y <" "f
the behaviour of th ,.1X ^on hi" "'""^'°? "'«'
whatoceurrclinconver^M™ .u . "^ '""'""••f
going to vote, .ndr:* r."a'in,tT°'' "'T' *"'
voluntarily onmirin^ .„ '' ^ t. ™ ^'Pomlent after
thercrcdi^Wef.SI'^:,;Eh ■"■'■"'' "? '^■" '"'"^•■
the ^spondent^ngivl^'iittwre""'' '"""«*«""•'
have to dL suci Lf LTZrie'Se "'7 '"' "«
out on the record a, w« *K- VT . '® evidence set
find accord^^g^ "' *^"' '^ '^'^""'^ ^^^ •^-wn. an.I
two cases of HilTrdSnff?.' ""^"^ '' ""^^^'^ ^^ ^^e
sent to constiS;: 2tZf;::^zzTtCt'^ ''^ ''-
the statute) consisted merely of I. " '"'^"'"^ '^
In such cases it oughtTbe 1 f " T r^"f '^ '^"^'■'
that the words imnuf^d f. *! "* ^^^'"''^ *" ^«"bt
used, because'lsZ^ttn"^^^^^^^^^^ ^^ --" ^
cases, when two people are talkTnt 7 !, ^^'^^'^^'^
not carried out, it mrybe that th? f ' "^^ ^'^^^^ ''^
evidence, but one peLn und '^'^ }''''' fy S^ve their
another different?, C^S^^^^^^^^^^ l^' ^>'
should that be the ce when the TdvUL ^171
1875.]
MUHKOKA.
479
attended with such highly penal consefiucncos as the Legis-
lature has declared shall follow the infraction of several
clauses of the Election Act.
The learned Judge reports that he .should have fouml
both the.se charges disproved if there were no collateral or
accompanying circumstances to aid him either way. He
tinds 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 t)ie scale, and
induced the learned Judge to arrive at a. different conclu-
sion, wa.s what occurred at Matthias' Hall. The speech
there delivered imhiced him to adopt the ca.se of the
petitioner with respect to these two cliarges also ; partly,
as he says, " because of the weight of testiuiony hy their
united force, and partly becau.se 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 re.spondent 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 umy find
their confldence considerably .shaken in a witness whom
they were at fii-st inclined to credit, by his being contra-
dicted by a number of witnesses, although each witness
.speaks of a difl'erent 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, " ponderantur testes non numerantur," and,
as laid down by Mr. StarkJe, no definite degree of pro-
bability can in practice be ssigned 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 ELECTIOVS.
[A.D.
I* ;|
f'>n»i.|,.mti„n of which v„ valu,- of (,l,.,i. . .•
niimeiiml co,„|,n,i,„„, "° """" '"'■ '"m.
1 Jo not ur,.l„,-,t«n.l that th,,,,. i, „„,. ,„„„., . .
*'■""■' »» '» "hat occurmi „. Matthia" H, , "■."
o«^.;;t:t'th^ir:u:^^^^^^^^^^^^^
-™u^to,L,tho.f::;;::|f-:,:■;::|;;»j■■*-,.t
Hi«i e I, not raflicient ovMenco to sunno, I '■•■
ill other «oi-cl, if ,„•; l support the chnrge, ,„.,
thoJu.i,.egTv t'cl ittir '" "™? "" '■"* '■*»• "l
the ch.Uth: 1 ::,irr„7, :,":;,::':■ "™"'-"
lioiition because a nu,„h,.,. r T ' "' '" » "■""•'
each of which teJ^ltrittr T ™'"',''""'' '"
that a limit couhl eve°nl,mllv • '""''""""olu.sion.or
hi» conclnsion upo^the f i .r! "'' »•»■"., "'"-.sl.
tlieothe,, wouWin itTul T <:'«•■«« in a.Mition lo
the j„,,,,: i: L " Id ;, T '° '" "■" '""™''™''
Plicity ol' the a, : ta'whiJth '■ "T"' "■' """''■
aud that of the ^IZ^t^/:^^^^ "r""'^'
::;ut;i::«-r*£^^^^^^^
■■■ * . ,e" and th '" I""'" """""tion of the
-■ or ■ " "'.''"^""hich they were underalo,,!
.;,"'" ■;""?. '"" "' ""^ P"*"' trathfulne,, of
... p,..ent,ancl .-.atHiir, evidence wa, given witi
« .-.. fet Uas; anu „eco„,e, to the conclusioLtflr t
1875.]
MUHKOKA.
¥M
lit'licvo the mspomlont — a conclusion whicli, fi a pt-r-
UHul of tho evidence, I slioulil also have arrive. 1 at, hut
in the correctness of which I am further conHrnn-d hy
two circumstances not referred to hy the learniHl Judge,
viz.: (1.) That Hill iiiniself .states that he did n)t regard
it a.sa Jiiibe ut the time, hut only awoke to the coascious-
nv IS of there being anything corrupt in it some six weeks
iiM. iv/ard.s, when it was deemed necessary to hind him
flown by a statement under oath. (2.) That it was ileeined
nece.s,sary 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
tirst impre.ssion was the correct one.
In the Sutferin case it is clear that when the alleged
conversation occurred Sufterin had avowed his intention
to support the respondent, who was aware of the fact, and
any promiae thus made could not have been made in order
to induce him to vote or refrain from voting; ami this
renders Sufterin's version of it highly impiobable. He
is, moreover, contradicted by two witnesses besides the
respondent. Sufferin himself admits, "I was not induced
to support him by this otter of $3,000 (that is, as to the
laying out of S3,000 on the roads in his township) ; it
made no definite impres.sion 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
f'u investigation of the two other charges, he held to be
not proved. " But," adds the learned Ju<lge, " 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
PROVINCIAL ELECTIONS.
[a.d.
The learned Judge then proceeded to investigate tlie re
mainmg charges, hol.'lng one of 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
Judges view of that speech, he would have disregarded
he united force of the adverse testimony; and had he
taken the same view of that speech which we are inclined
ler cha:;^' "^^ '^^^ ""''''' ''' '^^ ^^^^^ "P- *'>«
It would seem that both the respondent and his od-
ponent claimed to be supporters of the Ministry of the
clay ; bu that the respondent claimed to be the recognized
ministerial candidate, having been nominated by the Re-
form party. He claimed further, that his opponent, havin.
originally pledged himself to support him and then comin^
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 cons^^!
uency 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 sav
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 wa's
oversTer!^-''"* ""^ '""""'^ '''' *^' '''*^' and appointment of
There is a slight difference between the respondent's
version of this speech and that of some of the witnesses
but, taking them m the strongest way against him, I
have been unable to convince myself that they constitute
a corrupt practice, or that they differ substantially from
'mWH-
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 oft'er 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
II
484
PROVINCIAL ELECTIONS.
[a.d.
it could be intimidation within the stafc»^P m^. ■
co.es under the head of general ^nti^^dlt n '' '""'^^ '^
Tlie suggestion that the offence was onP«f.'. , '
was perhaps sufficiently answered bvth/ T " '"^^
no such charo-e was JJ. 7u ^. statement that
respondent shin ^0?^ cTll d' ''*^"°"' '"' '^^^ '^^
the intimidation is of such a .t^!' '"^ P'"^' ^'^^^^
extensive in its opeattnTw T^""' '° ^^"^''^^ ^^'^
datecUosuchanfrtTs'trt^:;^^^^^^^
of election had ceased tn «v,-o^ • '^''^^"^"nattrecdom
evklence, in l^r^ouM be '"iL^r""": ^ ''"f ■'™''
case would be to render a law hi V "'^^^'^r^''^ >" t'"s
ent IS a eo-ed to Im^.^oo-i "'"at the respond-
candidate was to subieot ih 1 . " *^^ P^'* «^ *
^voided.and to expose h,!^ r ? ^' ^'^^ *^« ^^^^^^^"
tion for any ol^e^^tt ^^^fttSr ''^"^"'^^-
cipal office, for eight years "' ^' ^"^ °^"'^^-
rupt practice within the Act !nT^ . '^' '' °°* ^ '"'-
of Mr. Justice WilL in the /T/ .t'^ ^'' '^' ^'"^"^""^
the extreme solemn fv , ! -^'^"^ «««''-" considering
all its substantials been reiu krlvl , '''' ?" J"^'^^' ^°
oeen regularly and properly conducted
1875.]
PEEL.
485
—looking to the amount and weight of evidence which
outrht ju.stly 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-
inf 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 Lcgis. Assent., 1875-6, p. 198).
PEEL.
Before Chief Justice Draper.
Bbampton, 3nd to- 5th, and IJfth June, 1875.
Before the Court of Appeal.
Toronto, 17th December, 1S75, 24th January, 1876.
William Hurst, Petitioner, v. Kenneth Chisholm,
Respondent.
Corrupt practices— Partial dmial— Appeal— Further evidence— New trial
— Withdrawal of petition— Refusal to allow substitution of petitioner.
Charges of corrupt practices, consisting of promises of money and of em-
ployment, were made against the respondent and one M., his agent.
Both the respondent and his agent denied making any pronnses 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 attidavit,
specifically denying any offer or promise, directly or indirectly, of em-
plovment. 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 oilers of money or employment which it appeared they had
intended making, ho would have found for the respondent.
Held, under these circumstances, that the finding of the Election Court
should be set aside, and that a uew trial should be held before another
Judge on the rota.
Observations on the difference between an election trial and a tnal at
Nisi Prius.
The Court recommended the petitioner to withdraw his petition in thiB
case ; and on an application for that purpose, another elector having,
applied to be substituted as petitioner,
486
PROVINCIAL ELECTIONS.
[a.d.
in support of them, and Ld recommeXf thf w^^^^^^ T"^ °^*"? '^^''^«"«e-
tion and no sufficient additionanrunds hav^rh''^''*'?' °^ "'« P^ti-
SX^^^'^--- ^'^ -«" tL^3ditrhVS^
pltL^"^^ ""^'^^"^^ '^^ "«-' «'^-»- of corrupt
Mr. Boulthee mid Mr. Evatt for petitioner.
Mr. Bethune and Mr. James Fleming for respondent.
The evidence showed that the rpqnnnrlor,+ •
w.h one M„«„ Ma<>di«.„;trr„t iirnr
" Mr r),i.l,„i -J ^ Mullens wife also swore-
Mi Chisholm sa,d, it my husband was nut out oF wori-
for hini, he would find him employment if he vote! t
him, and he was put out ol his winter's wo k hrot, Z
means, he would find employment if he voted foHhfr
The respondent swore that he did not make mJiiL an'v
proinise, or offer him anything; that he told M^ MuS
that It was against the law, and that it was iinpoMibte e
W for a vote; that he had to take a solemn oath fee m
that he had neither paid nor promised to pay anvH ,V ■
rpe'wLtr" "" '-' - -' '°- ^-^^
-s talked of,and^tha\Xr;tt:rsa»h";(r4
e^uri7&d tt^Tht"?^ r ^T
swo„ that he did not o«er an; mly fn .nXm rf
words or in any shape, or any indueement. ^
by m:2CC"™°' '" ^"•' -^ ™ -"«™'-
of?h?L^:sl'jti;itZhf'''"'".' "" '"^ f'"
Maddisan me.. L .'.'"'«'' ""> respondent and Martin
JUaddigan meet the statements as to money, or promises
1875.]
PEEL.
487
was confirmed
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, Martiri Maddigan and John Mad-
digan, specifically denying the said alleged ofiers or pro-
mises."
The afiidavits above referred to specifically denied any
offer or promise, directly or indirectly, of employment to
the voters referred to.
Mr. Blake, Q.C. (Attorney-General of Canada), and Mr.
Bethtme for respondent.
Mr. /lector Cameron, Q.C, and Mr. Beaty, Q.C, for peti-
tioner.
Richards, C J., in delivering the judgment of the
Court, 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
u J
488
PROVINCIAL ELECTIONS.
Justice Draper) had said tli«f if fK , ^ "'^
witne.M^i>„,.-r^^
alleged offers of money or employment which it appeared
espCir ?f VvtV^ '^ -^''' ^-« founder
was satisfied that the respondent and Maddigan had in
tended makintr such dpni'ol k, <. -a ^ , . ^ "'^'^ i""
u , ,. » "°" t'eniaJ, but it not hav nsr been ma.lp
evwenoe. Under these eircuraslances, this Court could not
would th' f °"" "'■ "" "'•"''""' '^o---' *<> »'»"<"■ Thoy
would therefore grant a, new trial, to be held before an
other Judge on the ,-„,„. On account of the irk om „eL
attening the second trial of the same case by a Jud°^
brou htTf'" """ *; ''™"'»«' "' «- -M-ett
pSwetl X" T'™T '" """="-. «.ey deemed i1
"'• -i^e petitioner should seriously consid..,-
whether ,t would not be better to withdraw the pet io,^
fori triaTtd'Vr '" '""^^ P"'y- ^'» -* »' •
wifiirr^;,ir "'"'""^""'' ^^ "■» ^^-' ^
onheX^,!r„StSar;'^-;r'"T.'
the following report thereon to Zs^-ai?- "°"'°""
1 have the honor to report to you, in accordance with
f :i!rw\s^Sbi'::Lrr.;r^^^^
-d be,ng of opinion that the withdrawal wal not L'
fS- lA.D.
parties might be •
•ned Chief Justice
ied, and he (Chief
spondenfc and the
t denial • as to the
which it appeared
ive found for the
her stated that he
laddigan had in-
aving been made,
ispondent on the
s Court could not
to stand. They
held before an-
the irksomeness
!ase by a Judge,
e evidence bein"
they deemed it
Y another Judge
riously consider
"aw the petition
The costs of the
he event of the
»e petitioner to
the withdrawal
76, transmitted
ir :
ccordance with
2 Controverted
I made by the
I Chisholm as
3 to withdraw
19th instant;
1 was not che
1876.J
LINCOLN (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 sutiicient 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).
Before Mr. Justice Patterson and Mr.
Chancellor Blake.
VlCE-
St. Cathabines, 11th to 13th September; 4th and 5th
December, 1876.
Toronto, SOth September ; Gth, SSrd and 30th December, 1876 ;
3Ut February, 1879.
Nathan Henry Pawling et al, Petitioners, v. John
Charles Rykert, Respondent.
Waiver of particulars— Amendment— Cumulative artu of briher>/—39 Vic,
c. 10 s. 37— Affecting result of election— Bds to chamie votes— Interim
certificate to Speaker— 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 respond jnt objected that the charge was not in the
particulars, and that it was not verified by the affidavit of the peti-
tioners :
Held, 1. That the petitioneri might amend their particulars, and that the
charges in the petition were wide enough to cover the charge.
2. 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.
'"^XrnnCilL^^^^^^^^^^^ »*»'-,- the interest of the
spondent at the election : ' ""' '"*J°"*y °''t»in«d ^V tho r"
//e/(/, inuler 3!) Vic. c 10 a ^7 fK„* i
extend bt-yoncl the ,;otes affected thSw 'a, N'rT"''.* ^"'^^'''^' '1''' ""t
Where, in addition to the awT ! ^' "^"^ "°* "'"''^ ^^e election
the re«pon.p';„*:| o\?e5 wTtrnrberlrvT '"""l"^ ''^-^^ "'
porters of N., the opposing candi.late thnpk/f f *f.''' ."^^^ ^^'•'' '^"P-
m order to win the l/ets. tL ™8 must 'f« f "l.*''" '"='« *'«"">: tl"t
^rfrf. that these bet.s were for fU ! "'*''" respondent'.-
spondent. and wet ZVjraoticPerari tlf"'"« ^"'^^ '^ *'- -
other cornipt acts prove.f as Het n,^f „'l It^ '" £?"''ection with the
the election , and tLt tt^l^ctio^n^ltt^^et^e Sifi *"^ -"" °^
fyi..g the result of the election t^-ial '"^'^'"^^ *» "^e Speaker, certj:
o rendering the procee|[n\SThel^ty^?.^^ -'^ ''"■-*
"ti!e'"co&;';-i tteTe\ttfor^^^^^^^ ^^Tr^- - -
c.rc„.stances, each party ,n„sr£ hToXS Jf tVe'tZlr ^"^
vofd tl'p'son '^""''•^; ''''• '--"^- been declared
declared eleettn;?a!:;t;;;:f^!; "^^ respondent was
The petition was thereupon filed, containing the usual
Charge that John Jnnkm, the financial agent of the re
one Arthur Belcher. The evidence showed that the corniDt
practace was an offer to the wife of Belcher to ZZ
u ta tW ^ '°'"" *" ""P""*"' ■" «>e manC™
out m the judgment. At the close of the evidence
sustord'''tt'' 't' "'""°r"' ~"'"*<' ">»' *" -We^ce
™ta,„ed^the charge, and asked for leave to amend the
1876.]
LINCOLN (2).
491
Counsel for the respondent contended that the clmrge
relied upon was not in the particulars, and therefoie, 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 aniciid-
raent would be in eft'eut new particulars, and the evidence
would have to be given over again. Besides, the evidence
of Mrs. Belcher showed that the petitioners had long boen
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 cau.se, 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
'•"OVINC.AL KLECTION8.
conscience of th • i"^''
• •ppi.-e«eio„ ., „„: .:; r j:' - f"™ ^ n.,.., .,„
P'~ I lie parties may ,,o „„ ,„i,u ° " """' "monclcl
" mtr '■'•^'*«"« w^p":: "•' '^""™ ^« °' *'
should 1» ,„Ven ,„,. ,, "' '" '"= ""■own off or th„f t"
*(ii« , " '01- the pavmenf ^p n ^ "^'' "me
. -"'^oe a voter to vote or re J, 1 " ^T" ''" """^ to
*^<^ ho d that T„„. . ''^"^'n irom vofc ncf.
J^e acts doneX ttn^ IT:-^^ *^^ -P-^-^^
questionably sufficient eviSclt' ''" ''"*^«<^ ^^^ "n-
thmk this recognition is shotn k i' ? ^'^ "°«'^^^- ^^e
^ r««Ponde„t himself as to7i3 ca ^ ''^^ ^^^^'«"«« of
J?« nomination to work for him ?° '" ^"''^ ^^^^"^^ at
h'^n; by the fact, which 7. 7 "'^ '""'''^y *« vote for
that the whole of what w T''"* ^^""^ ^^e evidence
J-kin and others! 1 „dT 1 '''. ^'^^ -« ^^ft '
J"nkin was named by tiie r. ^ ^' «^r«"««tance that
-^-t; and Junkin'seLlteSt"' " '^'^ ^^-^^^
that he constantly resorted
[A.lJ.
^vo to regard this
J what has already
•e. ''
t'«n 28 of tJ,« Act
>w those amended
'at'on, and that if
^'estigated afresh
"''*^''- The peti."
in their umenciod
li-ticuJars if they
f'ono as to thew
^^^ given us by
=•• c. 3), and by
'' as any amend-
*'«" 28 of the
^^'■n did offer
offering either
f. or that time
'»* ; and that
lec. 1, 31 Vic.
deration to a
1 in order to
respondent,
test are un-
'^ey had the
gents. We
evidence of
friends at
to vote for
' evidence,
^as left to
tance that
financial
y resorted
187fi.]
LINCOLN (2).
4D3
to the respondent's office to meet with tlie other persona
who were canvassers like 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 havt> 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 nuinicipality 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 :
PArrEHSON, 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 cases of Jackson
and Hollingsworth; but the effect 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 S50 each, to Patrick Hennegan, John Y. Cu.sh-
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
'•HOVrNCIAL ELKCTION8,
[a.d.
Evidence was also jriven of *i
Arthur Aiken of the taxe oAnn ' ^"^'"""' '^^^ ">« ««''i
the lOfcl. ami l/th Fel.nmry '"'""*" '"'''' ''^^^e.-n
September, on which daT he t ■""'■'■ "" ^''^ '^^f''
clehvered: ^ ''''' """"^'Ug judgment wus
Patterson, J A— A ff
agency of Aiken is ZZoTTT: ^'^ '"''^^ ^''^^^ tl...
«»ffieient (if n,e rebuttedWo ' "' '^''' '^"^ -'''«"«« is
allow an a.nendn.ent to ol " ^^'' ""^ ^««« ^ and we
that subsection, and no to fl" '^"" '^^''^^"" ^-'^-'
--~ofth:tr^:s:;LSx^^^^^
^--aSi^^^rtr^::^:-^-- House
^n the reassembling of the Court
voles. '"» ««8's'rar on the soratiny „f
*--"^'^»"-»".Q.C.. objected.
J he Court ruled fJmf *u
^ne petitioners then calIprJfl,„f I. •
^r^Awr^a.^, I Tent o,^t ^,^'^'"^^^^"«■^«^«••
the election with Jales Brn T ' ^'^^' P''^^^^"'^ '^
fir«t met him; cannot savTr' ' "'^""*^' '^^^ ^^-^ ^
Rykerfs office ; had 1 n^ ' ''"' ^^^«^« ^ ^'^"^ to
him; if I swore' I ml"Bro':;t L'rr ''^ "^^^^■■"»"
must have been crazy at thTf ''*'°° P"^P««<-^'^ I
election and about Jktg b ts TLr/^''^' ^'^"^ *'-
%kert's office. " We must all ^' !" ''''°" ^"« ^^^ at.
^hoitwas; IthinkCkertl '"' ^'^*'" ^on't know
a- not positive ; we wfre " iT T ""' '' *'^ ^•^"™«' ^-*
were all to do our best at the elec-
1876.]
LIN.'OLN (2).
495
tion; think there were fifty people present; have no
recollection of scrutineerH heiiij^f appointed ; was at a com-
mittee meeting at ( 'aiirH, for St. Jame.s' Ward, a weei< or
two before that ; we were lookinj,' over the votern' list.
When I met Brownlee on the night hefore election 1 had
about Si ,000 in my pocket ; I went out to get men to bet ;
I did not know whether the men were Neelon or Rykert
nien ; 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
mucli money I gave Brownlet; to bet with; I think
Brownlee gave me back all the money except $:\r, ■ the
bets were $5 and $10 ; do not recollect how much I
bet myself ; expended about SoO oi' ${){) in bets ; have no
recollection of saying it was SfiOor $70 ; I sent Brownlee
to make bets ; he told me he had made two liots ; 1 asked
Dexter Potter if he knew anyone who WM»uld 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
at 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 ottered 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 law huf •.
seems I was not; lost all of the bets bu on. t
account of them in any book • only nut fh . "^' '''
this betting account into the dealings ;ith h m L
have discussed these bets with hin, • hi ' ^^
bets to me; he told me I was I'.; ^^^^
he would accept the bet when I made it • think h. ^
he would see Potter again. ' ^^ '^'^
Cross-examined: I am not an agent of Mr RvkerfcV
.-as ,n his office on the night before the elecSon d j
not receive any instructions from Rykert • mos of' H
bets were sporting bets ' ""^ *^'^
dor:^:thi;;r::^^L^^-t"^-^-on;
St James- Ward; looked overtZ ^Trf H^rn ^^
Cams house to see who were voters; there may have
been a dozen people present; the names of two^ruT
neers were agreed on; Brownlee and Aiken lllT
about several voters; mentioned the tmes ^f Vir
Parker, John Jackson. Hollingsworth, and the to
Tyrrells ; cannot remember how many I spoke of; Coll I'
name was mentioned later in the evening; do not th "k
Moore s name was mentioned; might have spoken a^
David Grant ; think I was out with Brownlee and likt
about two hours; I bet that the voter would vofe for
Neelon; think Aikens suggested the bets; myttW
s opped at my house, and asked me to go up to Ca nl
place; I went there expecting to meet other' and '
etction"" '"°° ''''' "^'^^ '""^'^ ^"^ P-P-- ofZ
Counsel for the petitioners contended that, in any event
attending the respondent's committee meetings, or from
d the law, but it
but one ; kept no
them down on a
id large financial
ig a farthing of
with him; may
lever mentioned
ish ; have made
:pended in bets J
3c]on's; thought
; think he said
' Mr. Rykert's ;
e election ; did
k; most of the
•t last election .
ttee rooms for
i' list when at
ere may have
of two scruti-
:en asked me
Qes of Wise^
nd the two
^eof; Collins'
do not think
spoken about
56 and Aiken
uld vote for
; my father
up to Cain's
er3 and hear
)oses of the
n any event,
er from his
igs, or from
1876.]
LINCOLN (2).
497
Potter, who had been held to be respondenf.s agent, re-
questing him tc 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 votin>r
for Neelon, and the effect of their voting for the respond'"-
ent was to " count two on a division." Under s. 37 of tlie
Act of 1876, these acts, in connection with the ille-al
practices already adjudicated upon, have affected the elec-
tion : ffackney 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 ca.se 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 been adopted ? He re-
ferred to the advance of $150 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 tlie 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
if
498
PROVINCIAL ELECTIONS.
[a.d.
the other intended. Had these corrupt practices not pre
vaded there is no doubt the result of the' election, instead
o being xn favor of the respondent, would have teen h
other way; and under the 37th section of the Act it K
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 stron.K-
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 tor considerable time before the pollin-dav
was endeavoring by the expenditure of monev to in/uence'
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 i.
impossible to say that t^e corrupt acts were of such triflin.
nature or extent, that the result cannot be reasonabh"
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 oi 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 Madcnnan 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 durin.
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
It \7:^' ^ '*^*"*' contemplated only one certificate;
and held that the prohibition in the Act applied to prevent
thescrutmyproceeding duringthe session of the legislature
1876.J
LINCOLN (2).
499
Alter the close of the then session of the Legislature
the scrutiny of votes proceeded before the Registrar A
case aftecting the revision of the voters' lists bv the
County Judge of Lincoln was stated by the Registrar and
reserved for the decision of the Judges under 36 Vic, c. 3
s. 34. (See re Lincoln Election, Borrowman'scasc, 2 App R
316.) The judgments ih appeal from the Registrar are
reported jnost, p. 500.
During the 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 Judfreg
for the opinion of the Court of Appeal : re Lincoln Election
Petitmn, 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 Judoes
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
Cler k of the Cro wn in Chancery for the purpose of the
wmK^'fl,'; o„l':?io^S:iS;i^^^?mH!" """''^^ *•"• """' «"*'"' ^»^
500
PROVINCIAL ELECTIONS.
fA.D.
(12 Journal LcgU. Assem.. 1879, p. 209.)
LINCOLN (2).
scrutiny op votes.
Before Mr. Justice Patterson
Toronto, mh November. 1877. to 31st July ms
N.THAN HENRV Paw.NO. P.. W. v. ^^hTcharlks
^'^Km-t, Respondent.
-tendered Balht.-ParoLrclST^ •^''^'°"'~^'''"'''^ ^'o'^'s
By the 3rd sec. of 39 Vic o^n in u- , ■
^ec of the Election Law of 1868 f„v'i,'^ substituted for the 66th
that capacity for the time X tTfn "''""P"™.'. "'• P^'^ons acting „
polling Jay and within t.hehou,5 of noil?, ^'''' ^T"' «* taverns^^
tjces ; but persons who tveTZJj,?' f« RU-'ty of corrupt L?
affected by the statute." UaVl ZdX^S "' "^^ **-- - ntt
Bt:;:at"a^^^ by certain vote«
country, and aUo evidence thaf.fl .t^ ^*^" ^'^^ '" * foreign
^«J«<«. of alienage, (y^^oft A7,E "L , '=°"*'""'""^« of the original
"I'lfc bat mtbin the' ™,. c™"^T "^'"'"'"""l t« th.i,, n aZlt
[a.d
ounterfoils, and
burt-house, and
1 of the loss of
udges to deter-
id lawful votes
879, p. 209.)
N.
, 1878.
HN Charles
s— Income Voters
;ecl for the 66th
)erson8 acting in
at taverns on
of corrupt p.ac-
taverns are not
' certain voters,
rn in a foreign
sion the voters
to the voter's
tion :
i testimony, not
iect by birth or
i certain facts.
iion sufficiently
of the original
I'as bom in the
"1. and that it
tea of British
re a Justice of
>eir. n a town-
1876.] LINCOLN (2). 5QI
^eW that under the Alien Act, 34 Vic, cap. 22, sec. 2, Can., the Justice
of the Peace, m administering the oaths: was acting ministSlvm.H
^oUirir"' * ''^ "''*'' "^^ ^'^"'^ adf„ir^tr"^£
A voter whose qualification is successfully attacked may show a ri^ht tn
vote on income ; but in such case he must prove that he his co nolied
with all the requirements of the Act which are essentll to m.ali y S
to vote on income. (Janu^ B. Gray's vote. ) ' ^ "'"
A voter was assessed in two wards of a town • he nartoH witi, i.;„ ,,- _i
qualification in one of the wards, but voted inCc^w^rd':""" ^^^""^
Held, tha,t the vote might be supported on the qualification in the othn.-
ward which If the voter had voted on it, would have made it neces
Zl!"" ^°*' *""*''''■ p°"'"« '^'^''^'•'"- < w'''^'«« ^- gS.;
A person assessed for land he does not own, tlnugli receiving rent for it
from a tenant, is not qualified to vote, (john QlarkU Ze^)
''ired^tllf Ser :° ^"^^ '' " P°"' '"' ^'^ "°* '^^'^ ^^ ^ P»* '" ^
HeU, that the Ballot Act required the vote to be civen secretlv an.l tl,»f
the parol declaration of tl7e voter as to his vote^could nof fc rece Jed
in order to add it to the poll. (George Secant'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. Hodgim, Q.C., for petitioner.
Mr. Be'Jmm, Q. C, and the llcspondent in pernon, for the
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 practice,s. The follow-
ing judgment was given on the appeals affecting this class
of voters :
Patterson, J. A.— Some of the ca' -" in these appeals
raise the question of the construction or 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, dui-ing 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.
[An.
c Ws "'" "'^^' "^ ^'^^'"^^ *« ^« -*-*ed are of three
1. Those of tavern-keepers who sold or gave the linuor
2. Those of persons who treated at taverns ^ '
^ Ihose of persons who were treated.
ho™ appointed W pot^t It ^p^r °« '^'
The Act of 1875, 36 Vic can 9« q ^ »'"ce.
of the 66* sec«„„ „f tie' ZLl wl^ Ss™,'"'""
the hour, of polling, a eorrup, fra,^iJZf~!ltZ'''''
IS substituted for section 6ft ^nepresentsection
stiJuM " • '■'""°""'''« S™"* for reading the word "sul,
Btituted, many narrow sense. The new wl™-
•mleria with the former one If m. 7 '" ""•'
in whieh the offenj^f LT' ^ ™™'' "■" '»""«
day i, prohibi !r It retataTthl *' ' ''"T "" '""■"'''
adds n,Le stringent'^a^ "o/ f:r„rr'^; T'" "
rt'That'r '°°- •"=• '"" "■»«" ^-i taZ:
tive as that f„ ) ^''V'<^<"'>n used is at least as eHec
atSchto*tt trinrLiTofT' r" '■'"' ^-» '»
consequence, It XT u' 1 the W "" '^" "" ">»
original law. In other wori! I thi,^k r™'",' "' ""'
be substituted in the reading o' he LTof W °" """n
as in reading the provisions f«r l ■ ' " """
order at e Jtions, L«3 in JhelTff S •"" ^^^
thelrufMrfi^ith"::?""' *"r -- ■ •"" ^ -^
been done with co „pt inttt"''""'^^"^™"'' '" '"-
into .^e. 3, whichl;:l h n„ •onnT^^r' '" "">»"
of corrupt p„ctioe JeriC'Z: th"t Xf 1r
-an^cla-fo^nTiltT-Ltl'l-SX^
1876.]
LINCOLN (2).
503
and makes amendments more or less isolated in their
character. There is, therefore, no sound rule whicnnak s
J necessary to construe any pari cular amendn,en y th"
light of an association which we may discover here bul
lhl\T J '^^''^' '^ ^'''''"^'- But it happens
that these three sections are classed in the amendin^Ic
under the head of corrupt practices-a circumlnee
whjch. as shown by the present Chief Justice of App a
m his judgment in the Soutk Ontario cose (12 Can T J
223, s c, ante, p. 455), may be taken into account in
determmmg the immediate and special object the LeU
ature had m view; and which, in the present case f
ainly does not dissociate the clause in question from th"
S ther"''-rf "^' ^'^^"•"" -'^--^h^^ - - n-
plation of the Legislature that, in the application of it an
It is, therefore, in my opinion, clear that every tavern-
keeper or person acting in that capacity for the Ihne
who s Id or gave liquors at the tavern within the h ur^
of polling, committed a corrupt practice.
1 hen as to persons who were not tavern-keepers. I have
no hesitation in holding that it is the selling or .ivL '
only and not the receiving, which is, prohibited under ^e
penalties attaching to the violation of this law The
words are plain and unambiguous, and cannot be extended
nrtto;T"".t T"-P--'^yi-Pon.A.o^..J
and the offender is the person who .ells or gives. In this
respect, the statute differs from the EnglisirAct, 17 & 18
^ ic cap. 102 sec. 4, which makes accepting or taking an
ottence as well as giving, °
In considering wheth'er the man who treats another is
one who gives within the meaning of the section, it will
be useful o refer to the old sec. 66. It provided that
every jiotel, tavern and shop, in which snirituous or fer-
mented hquors or drink3 are ordinarily sold, shall be closed
.'504
PROVINCIAL ELECTIONS.
[a.d.
or fermented li.uo. o/^Hnr^ bo^H^r^rr
any person within the li.„its of such n.uniciX uH"'
he s,.apeno under a penalty of $100 in every"2
case. This section Ud been the subject of several iu J
nients m contested election cases ^ ^'
In the Sonth E,^,cv cast (11 Can. L. J., 247 • mKe n 2T-,^
the Chance lor avoided the election for a co^t pmc i
partiapated in by an agen. :, the candidate by rec't^
wast .1; ) *''", ■ ''''' ''■• ' ''' been followed ; and
of Z al iftte^n; '^-^"^ ''^'"'"^"* '' ^he Court
oi Appeal in the South V^(„H^ case (ante. p. 420) In th<.
us roachmg the ca» of a p,iv„te pe,.,on who StTn h.
"se of all comer,; and m the SoM O.l.rio e,se. Drape,.
C. J A. ,aKlc. p. 439). did „„t take exactly the sameT, -
of the section as the other members of he olt h
It prowLS'the' "'.^"i*'' «"-«-« Act was paesed.
£prit'httt'-H^it%fa7ntrdS
M conhned to places ejuedem generis. In this nartienk,.
»e place 01 selling or giving was concerned.
gi w:^T:7ier pir rp::t:ri °=°^'"''-'""^ «
^ uiei piace. It probably was considered
1876.]
LINCOLN (2).
505
sufficient for the purposes of this enactment, and with the
Siot IT"'' p^"^ ^"^' ^"°^ '^^"-' - ^ ^-itt
wouTd .nn H T ^'"''"^ ""^''' "">' °^^^^'' Circumstances
would apparently be in one of two positions. Ho woul"
either do the act in perfect innocence, as in the case o
giving a glass of beer or of wine to a friend inTn" a
his table; or he would do it. as in the suggested cls'e o
broadung a ca.k for all comers, or even fn th 12 o
carrymg a bottle in order to treat an occasional tiplr 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 S ffi
cul les that attended the attempt to construe th ar ^
clau e. The leading idea is that liquors kept for sale 7i
hotels, taverns, shops, or other plLes where Hquo i
usual y sold, shall not be dispensed on polling da Te th
hvtVJ "^J^^.^= .^"^ >* «^»"«t be disobeyed, except
by the act or permission of the person in whose control
the hquors are That person is the offender, if the law i
disobeyed. If he obeys the law and sees that none of h
rdlTn '^ 'T: '^ ?" '^"^ ^'^' '^^ ^'^^^^^^^
pa t that T . " '"'^'^'''' ' "'^'^^-'^ °f 'fc - hi«
part that a .second giving, such as occurs when one man
treats ano her. can take place. I do not think such a
second giving is aimed at by this statute, which attache!
IdortMt P"^«^--"-- accepting, or drinking
s"p ratToff " °^^rr"°* ^"^ J"^^* ««•--• but two
separate offences-out of what is in reality but the one
act. Giving is, m my opinion, prohibited to prevent an
evasion of the prohibition to sell, and, like its comranion
word, points to the vendor only. ^
If intended to have a more general application we
ahou d not find it limited in its operation to^he Tils of
the tavern or counter of the drinking booth, or other
tZ Vl^fr' "^"°''' " '' '^ ^" *^- «J-"-; and
we should find, what is here wanting, a penalty attached
to accepting or drinking.
506
PROVINCIAL ELECTIONS.
[a. I).
faulty rule of consfcrnoHnn i ' * "^""'^^ '^^^'n »
obeying thu law l.v parting „ifl, 1 '•'''■■"'■l=e«P»r di.,.
no,«„aH,"rarur:;:ss-2:r';y'-'
been .somewhat „,„,. elearlj- expres^r T e ™K „r
case in wl„eh it can be su.r.rested tliat »,„, . \
&».. is the act intondt J irih. ""'/ ' "' " '"'''"■".
liquc- from elsewhere ti' the ta™^ :„r°"' '"•'"«'"8
This is t«, remote a pos^ibil tv!o , ' "'"^ " '"^•
bare mention, and no gS^ r 1,1 ' b " ■""'! '!"" '
a giving of that nature shou IdTot Ta, off.T't' "'■'
committed, as well as when comm ttedt ! °"""
where liquor is ordin»rily"oTd" ' ° '"™''" "' ''''"
-.^bnt that the /.enrttfrilr-li't-^
MCOB SBE»CK'S VOTE. (Ali,n ca^s.)
Che:r ntivtt "'"^ ""■"""'- "- --^
rernonrlpnf 1 , "" "^'"^ **''' ^^me question of law. The
Taritrn z: zt^:^]^^---^ °' ^
years before the election TJ T' T' """' ""ny
foreign country. A™"; thi ^i"""? "^^ '"'™ '" '
given on behalf of t?! .■! "xln-'SMon evidence wa,
admia,i„„,t"'ot W^trr;.*"'™"^ *» ^"^ "'
■nentaiy ActioTaL k J?f ' '?" "^ ° 'o™"' P"'':'-
containL a d iait tht " *" ™'"' '»*•"'""'>
Majesty by birttri iSttt™ he R^t °' ""
sidered that the oath ri;«nl! ^.u Registrar con-
held the vote good ^ *'' ^""^ "'"^^««-"' -"^
1870.]
LINCOLN (2).
507
Mr. Ikthune, contended that the admission wp,s primd
facie evidence against the voter, and tliat it was incorrect
to allow the oath, as that was sliowiny, in answer to an
admission, that the party had at another time assorted
the contrary : Tippernr], case {:i O'M. & H. 34) ; Tu>/lor on
Evidence, h. <m ; Brightl,, on Elections, 395 ; People v
Pease (27 N. Y. 45 ; 30 Barb. 588) ; Hex v. Twi/ni,u, (2 B. &
Aid. 386); Lapslei/ v. Grierson (1 H. L. Cases, 504); Het/ v.
hihahitants of Harhovne CI A. & E. 540); Chamhcrs' Die
honary of Klections, 23; Montf/ojiicr;/ v. Graham (31 U. C.
R. 57) ; Doe Hay v. Hunt (11 U. 0. R. 367.)
Mr. Hodyins 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 Lind 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. Tease (supra); Brightly on Elections, All, 413; licyina
ex rel. Carroll v. Beckwith (1 Pr. R. 284); Rex v. Edith (8
East, 542) ; Fitch v. Weber (6 Hare, 57 ; s. c. 12 Jur. 7G) ;
The Acorn (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
hi •. 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 ;
Ml ju
PROVINCIAL ELECTIONS r
«..e function, oHhric „:"o"s;«:' "'•"■"•"*
only, and l,i, ,]„.„ m,„n.ir u "« •"'"'stoml
when the oath w^ tak T "'"f .^T^" ~"'™ ">" v*
•■•J no opportoit^ !" • ""'■ """ "" "'l™™ litigant
-m.,e„ that he°;:'i:;;,r, rrs' i' ;r "^
not naturalized iia, been mv.„ tk / , "' '"' "■«
>^-..,e„t fail,, heoauITh dM not™: tf" '"' «'"
ralized. He said h« woo , • ^^-^ "^ ^^''« "atu-
- he »id he r a^ti ;::':: iSt"s^ "-'r ™"^
fact, influenced it olw™""' '"" *' '"" ''"'"'' «"""
whether he tho„girh:c.";"4r;Vrt,r "" 'r-
by naturalization '' ^ ""' ""^ * ^"bject
«,'vLTi„t:Thr,''" "'!; '-" "^ '■«' -
subject, he „, Jd ,S :„ i "■ ™'='' " » »«»"-teed
I«7<).J
LINCOLN (2).
SOD
n naturalized
»'n a subjoct,
tlmt he waa
m Would bo
ized .sul)jcct raises a presumption of naturalization suffi-
ciently strong to rebut the presumption of the continuance
of his original stafm, except an American case. People v.
Pm^e (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 whoso conduct was in question.
The well-known rule which, ns applied to plea<Hng,
requires a party to plead the facts which are within liTs
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 i.s, " I admit I was bo. a abroad ; but I say I
have been naturalized, and yoii must disprove that." The
rejoinder may be in words from £<\<if. on Evidence, p. 370 :
" You assert that a certain event took place, not saying
when or where, or utulci 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 anotL.-r 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 fojce a man to show a thing which by
intendment of law lies not within his knowledge.' lex
neminem cogit osfendere 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 i)ut an end
r<
510
PROVINCIAL ELECTIONS.
[a. I).
affirmative lav on him „,.K .1 ' ""^ '^"^ 'he
of law againsi ZtZZ^tTj'""' ™ ' 1>"=""P«""
at least be product vlnf 1 """"""""g »-> injn»tiee,
prevent this, it h« L* "STr/ *"''^- '" ""^ '"
evidence that the 1X7^^,1^:!:^' ™'^°'
wishes to snpnort hi, ™„ k ■ ™ frson who
more peenliarC with n ht '' " r"™'" '«' ^''•'^^ '■"»
heiss'npposed-rwlar ''"''*<'»-•» «' which
■-it;T„tti; Is**" ;' •»- -, I
finishing to tl/alie„"he plr:, "h' "'?"',"« ""^
and for tjie reception „f rt.f « , " "''"rah-zation,
'o he estabiishTdt evS Lr ratTt*" '"'.'"^
the evid;nty:redrr rinh™*,"'"" '" P"^"™
-tu,»,i.ed b;a„y:«S^'p"eet t^*™'".'""'^''''"
pnvate Act of the Imn«ri.l p i ' '°»'ance, as a
™|^/ ha ,uotedt^™itt^r:;^=-'*'" o^ 'he
-he statute of 1871, 34 Vic c 22 r«n ,•
tration of what the effect of ^iddL t"' 'r'^^'? ^^ ^""-
support of these votes would brZ K ^^",'7*«»'^«'^ '»
•who had taken the oatlvl /. ^' ^^^'^^ «*' Persons
of aliens by We, Acts hTH'l *'' "-totalization
ficates which those 1 .k "^ ""'^ P'"''^"''^^ *he certi-
such persons so^d be elS^^^^^^ it. was enacted that
born British su^s it t b ''P"'"^="^ ''^ "^'ural
certificate from thef L? ° T P^^"^" *« Pr««"re a
that everv affidavit taken ''' u '"' '"' '' ^^'^ ^"^^^^^
with the Clefk o7 t t^^^^^^^ ^^^/^-^d be filed
-andtheg-S^^Sriirrri^:
1876.]
LIKCOLN (2).
511
farther provides for a certiScate from the Clerk of .1,.
Pe^, wh.ch should ^,H^^^ evidenee of tt^i, *!
«.^:r4r«rzi:trrs:r"^'f"'.'°
o™l evidenee that the oaths h.dZ„ Lta un" ""'™
We may infer from the passing of the Act of l«7i
If we did not know it otherwise tha/1 ' """"^
tl;e oaths but did not com;,lTheXr:Zs!::;t th-'
little the facTofl:^erlrt: Xsl natutr^r ,'^^
and how appropriate the rule is which I hold fl ? '
here, and which requires the producMon of 1 1 7^ ^
provided bv law for fV,^ P'ouuction ot the evidence
on sn.r^ ''^ P"''?^^*^ «f being produced
on such an occasion as this. F'^uucea
I am of opinion that the obieetion fn +i,« •
on theground of alienage rJXtZl^ ""^ ^"^^^^
JAMES MULRENNAN'S VOTE. '{Alien case.)
In this case the voter was called, and proved r^nf I,
Pledge oTI^tf ;SSt,'pte: r Th^f'" '^"
held that the statement of the pa^r'. '^'"','^?'f"»'
of the voter's ali.n.„. """«/'>«">« »« good evidence
disallowed aetr'""' °' ** -«»-lity. and
-y, but as hlJotn al" l™ "1 T""' "" "^ ''*-
w..™inthe.niteas::rB:itr;tnrtti
^^"""^■■■■■■■■■■i
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, liaving 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 requii-es the oaths to be taken before
some Justice of the Peace or other person authorized to
administer oaths under the Alien Act of 1868 (31 Vic, c 66
Can.) The persons designated by that Act are a Judge of
any Court of Record in that Province of Canada in which
the alien resides; or any person authorized to administer
oaths in any of the Courts thereinafter mentioned ; or
any Commissioner to be appointed by the Government
for that purpose; or any Justice of the Peace of the
county or district within which the alien resides. The
courts named include, in Ontario, the Court of General
Sessions of the Peace, or the Recorder's Court of the
county or city within the jurisdiction of which the alien
resides.
This Act was passed on the 22nd of May, 1868. On
the 4th of March of the same year, the Legislature of
Ontario had pa.ssed an Act (31 Vic, c 18) authorizing the
Lieutenant-Governor to appoint Justices of the Peac°e for
every city, town and county in Ontario. The question is
whether a Justice of the Peace appointed for the town of
St. Catharines, under the Ontario Act. was a Justice of the
county of Lincoln within the meaning of the Dominion Act
I think he was. He was not charged by the Act of 1871 or
1868, with any judicial duty, or any duty which had any
i
1876.]
LINCOLN (2).
513
necessary reference to the authority exercised, under the
ommrssion, within the territorial limits to wLich x!
tended. He was «^nply a person designated to dLwo
a certain mn„..,eriai . uty. The Dominion statute addS
a function or power to those he already possessed as^t
dKi ,n the case of Judges of Courts of L'coTanV h
officers ot Quarter Sessions and Recorders' Courts There
IS no reason which I can perceive for reading a Justice /
he county as if it were a Justice/., the county, w ch t
he expression ordinarily used wheu territorial jurdi
Act ot 1873. The description "Justice of the Peace of the
county," IS sufficiently d<.scriptive of a Justice who is no
a Justice/., the wl.:. . .unty, but only for a part o i
r ^ ^ St. Cath.,.nos could not have effectually taken
the oath before a Justice for the town. And yet that
would be the effect of our holding the present oaths ^
have been administered without authority. No such
TtrerTheT-T*^"''' 'r ^" *^^ ^'-^"--^ oi this
mattei. The objection urged was that the Justice could
only act within the town; but the statute gives him no
nght to act within the town unless he is a Justice of the
county I have no doubt that in furthferance of the object
of the Act of 1871, which was to enable aliens to pu on
record, m the solemn form of an oath, their purpose of
transferring their allegiance to the British Crown-but
which gave no effect to the oath until a further act was
done by f.ling it of record in the designated office-it is
our duty to pve as liberal a construction to the statute
as Its language will fairiy bear : and not to hold, without
necessity, that the steps taken in good faith, and in literal
compliance with the law. are nugatory merely because
the expression "«/ the county" is capable of being read
as meaning "/or the county ;" and where the functbn in
question is not one of tho.se belonging to the officer as a
Justice, but one belonging to the individual designated
as persona: dcsujnatce for a particular purpose
i
tss^m
wmmr
514
PROVINCIAL ELECTIONS.
[A.D.
I therefore hold that these persons are entitled to vote
as i,u,turalized subjects.
JAMES B. gray's VOTE.
The voter was assessed for property sufficient to qualify
him to vote, and also for an income of $400. His name
appeared on the voters' list as a voter in respect of property,
and he so voted. Evidence was given to show that he had
parted with the assessed property prior to the revision of
the assessment roll ; and the vote was then sought to be
sustained as a vote in respect of income. The voter, at the
time of voting, did not produce to the Deputy Returning
Officer a receipt for taxes, as required by sub-sec. 2 of s. 6
of 39 Vic, c 10, although he stated he had it with him at
the time of voting.
Patterson, J. A.— I hold that the voter appearing on
the voters' list and on the poll-book for property only,
and that qualification having been successfully attacked,'
the petitioner has a right to show that the voter had a
good right to vote on income ; and that the fact of the
voter being assessed for $400 income, does not throw the
onus on the other side to show that he had no right to
vote on income, because the income qualification includes
the payment of taxes before 31st December of the previous
year, under 39 Vic , c. 10, s. 5, and in this particular case,
the production of the receipt, under s. 6, sub-sec. 2. The
evidence shows that he produced no receipt to the Deputy
Rsiturning Officer, and I hold that there is no presumption
that he had an income qualification, so as to require a
specific objection to that kind of qualification. Vote held
bad.
WILLIAM T. GIBSON'S VOTE.
The voter was assessed in St. Paul's ward and St.
George's ward, in the town of St. Catharines, for property
sufficient to qualify him to vote in either ward ; but prior
to the revision of the asse.ssment roll, he parted with his
property in St. Paul's ward. At the election he voted in
St. Paul's ward and not in St. George's ward, in which he
was then owner of the assessed property.
'%
187(i.]
MNCOLK (2).
PAmilsoN J A.-U has already been hehl that tl...
«.sten,s,ble <iu^hti«ttion bein. .successfully attacked, a vot .,•
may show that he had another qualiHcation. thin
that the vote havin. .been ,...a /h.V regulaidy ..eceive
und thereto, the Deputy Returning oScer havin- 1
.,unsd.ct.o„, there is nothing either in the letter oT th,
pn.t ot the aw to prevent the vote being .supported on
the ground o a ..ualiHcation which, if the voter had voted
on It o„g.na!ly, would have u.ade it nece,s.sarv for him t .'
vote in another polling divi.sion. Vote held good.
JOHN i;lauk',s votk.
The voter ha<l originally been a s.juatter on (^rown
and adjoimng the Welland Canal, but .some years prior
o the elecion had rented it to a tenant, who then ooc ,pied
>t and paid hun rent for the same, the voter not personallv
occupying the property. He was a,s,se.ssed as owner, and
his tenant as occupant.
Patterson, J. A-The vote of John Clark is objected
to on the ground that he is neither owner, tenant nor oc-
cupant ot the land on which he qualifies. It is a small
piece of land which belongs to the Crown. .John Clark and
hi.s brother James acquired the right to the possession of
lr"i """T P"*^!^'^'^«^' «'J''> «««veyed it by deed to
but o ,1 'T'"'t '" *''"* '^"'"^ ^^«"^'^* J^"'-^' right
Imt no release rom James appeai-s to have been execuLl.
1 he va ue would not entitle two to vote : but it is .shown
that John occupied the land exclusively of James, an.l for
•some years past had iet it to a tenant, who pays him
rent, and that he has not been personally occupying. By
• - Vie., c. 21, s. :,,th(- voter must be actually and bond M,
the owner, tenant or occupant of real property, and must
be entered on the a,s.se,ssment roll as the owner, tenant or
occupier. " Occupant" is dehned as signifying a person
'.«»>«?. occupying property otherwise. than as owner or
tenant, either in his own right or the right o^' his wife
I'ut being in possession of such property, and enjoying the'
revenues and profits arising therefrom to his" own „s,.
Olf)
PROVINCIAL ELECTIONS.
[a.d.
By the assessment law, .S2 Vic., c. 36, which received the
royal assent on the same day as the Election Act the
assessor was (s. 21) to state whether the party assessed was
a householder, freeholder or tenant, by affixing the letter
F.. H. or T. ; and (s. 26) when the land was assessed againsD
both the owner and occupant, or owner and tenant, the
assessor was to place both names within brackets on the
roll, and write opposite the name of the owner the letter
¥., and opposite the name of the occupant or tenant the
letter H. or T. The Legislature thus defines owner as
meaning f.eeholder ; and occupant and houficholder are
made convertible terms ; and the distinction between a
tenant and an (occupant, whatever that distinction may
be, is preserved. The force of these two definitions of
occupant clearly excludes this voter. He is not the house-
holder ; he does not actually occupy the land, and he does
not enjoy the revenues and profits c. it, but on'- that por-
tion of them which his tenant pays him as rc.it, the tenant
enjoying the residue. Being neither freeholder, tenant
nor occupant, he cannot vote.
GEORGE SECORD's VOTE.
The facts of this case are set out in the judgment.
Patterson, J. A.-In George Secord's case there is a
conflict of evidence between the voter and the Deputy
Returning Officer, as to what took place at f;he poll, when
the voter was required to take the statutory oath. The
voter's account of the matter is, in substance, that he was
questioned as to whether he still lived in Grantham, and
that he said he did not, but that he lived in the electoral
ilivision, and he was required to take the oath ; where-
upon the Deputy Returning Officer read the oath to
him, making it read that he was still a resident of the
towmhip of Grantham instead of this electoral division ;
that the voter refused to take this oath, but offered to
swear he was a resident of the electoral division, which
the Deputy Returning Officer would not permit; and the
voter therefore left the polling booth without having re-
1876.]
LINCOLN (2).
517
ceived a ballot papt-r. The petitioners contend that the
vote ought to be counted for Neelon, because the voter
ought to have been allowed to take the oath and to
t-Ie ■ I 7'^^ ^^tnvuing Officer contradicts the
voter and says ho read the oath Just as given in the
«^tute. and. in fact, entered the voter's "nan.e as o^
^^iag„ra ; b,it that he did not read to the voter the latter
part ot the oath, as to his being a subject, and the parts
tollowing that. The Registrar took th; vi w of the fac
presented by the voter's evidence. On this question of
tact. I do not see sufficient grounds for disturbing that
demzon, although on u.erely readin,, the evidencc^w th-
ou t seeing the witno,s.ses, it may ,:ot be that which would
at hrst .suggest itself.
I have been referred to a .lecision of Wilson, J., in the
f:^'' P"''''". -- (II ''an. L. J., 162). in which he Z
piessed an opmion that .some voters, whose names had
been ouutted f,on. the voters' list, but who were dul
assessed and entitled to vote, and who had presented them
selves tor the purpose of voting, and declared their inten-
tion ot votnig tor a particular candidate, but had been
refused the right by the Deputy Returning Officer, ought
o be counted as having voted for that candidate. The
ment H ^T"]'" ^"""f' '"^'^'' "" ^^^'^^ *"•«•" ^^^^ Judg-
ment that the learned Judge was right in refu.sing to stt
itiicat Tr '" ■''''''' *'^ '"^" *^' ^•"*«' -^- '^^-
^the f o H ' T""'^' ^^*'^""* *^^"' ' ^"^ I do not
gathei from the judgment of the Chief Justice (37 V. C
R.. 234 that the view of Wilson, J., as to counting votes!
net with approval. It would seem difficult to reconcile
tnat opmion with the principle of voting by ballot • but
to vote for the petitioner was not declared at the time
would be to extend it ,so far as to leave the principle out
ot sight. I have already had occasion, during this scru-
tiny, to refer to the rule .stated by Lord Coleridge, in Math^
V. Lrcvr^ (1 C. P. D., .596). and which commen<ls itself to
518
I'KOVINCIAL ELKCTIONS.
[a.i».
"'y.)U«'g"»«»fcatt a.souiid one, that in these election matters
we are bound to keep oui-selves within the letter of tin-
Acts and to abstain fiom any attempt to strain the law.
! find provision made (ss. Hi and 14 of 37 Vic, cap. -)) for
tendering ballot papers in certain cases, so that tht votes
may be given secretly and kept secret until the right to
vote has been determined ; but I do not lind that open
voting is in any case crmtemplated to say nothing of
receiving a vote when to the absence of secrecy is ad'de.l
the absence of some of the incidentals intendeil to se. uiv'
honesty in voting at the poll. The question of the power
of an unscrupulous Returning Officer to dishonestly affect
the result of the poll, is one to be dealt with by parlia-
mentary rather than judicial legislation. I have no doubt,
however, that I ought not to add the vote.
{I'l Jouninl L«(/>x. A.'isem., 1879, p, 20M.)
V t
1«79.]
HdHSEM. (2).
PRO VINCI An KLK(yvl(iS8, 1S7!».
510
KUSSELL (2).
HkkokkOhikk Justice Moss and Mr. Vice-C^hancki.i.ok
Blake.
C)ri'AW.\, ,;//( Dn-cmhei; IH7'-I.
Ai>AM .J. Baker, Petitioner, v. Ira Moroan, R,',,pondent
marks on the back than the initials of tt Ueputv Ctnrniir^ ()Cp«
were rejected by the County Ju.lge. thereby Sfrmaiorftv to tf^.'
respondent. Evidence was'given'^on the hearfig of thTitt^o.^tfi
in?H?h'^^'*r"'"^ Officers ha<i. from a mistaken i.lea oTthrdutv
''the balloL^*rATf ^'^l';,^' "*• ^**' ^^'^ '"arks .0 made di.l notuvoi.l
the baUots, and that such ballots should now be counted.
"' , Jl'if, ?f ^^t IS*i*'°"- ^^^ ''^«" rendered necessary by the mistakes
It .t.y^Pf"*^ Returning Officers, for which neither the petitioner nor
.espondent was responsille. each party shoal.l bear his own coTt^
'^''iv.nlV.*'"'* 1*^ ^."^"*y ^"''86, acting ministerjally on the recount o
The petition set forth that the petitionei- had receivtMl
a .r.ajority of 28 of tlie ballots cast at the election held on
the 29th May and 5th June, 1879 ; but that, on a recount
of the ballots before the Junior Judge of the county of
Carleton, certain ballots, with other marks than the initials
of the Deputy Returning Officers, had been rejected, there-
by giving the respondent a majority of 27: that such marks
had been placed on the ballots corruptly or intentionally
or by mistake, by the Deputy Returning Officers ; and
the petitioner prayed that they might be counted for him
and that he be entitled to the seat. The petition also con-
tanked the usual charges of corrupt practices.
Mr. O'Oara ami Mr. Christie, for petitioner.
Mr. A. F. Mclntjiri'. for respondent.
520
J'HOVINCIAI. KLECTIONS.
[a.d.
Thu t!vi(lence of tlie Deputy Returning OtHciis of tlie
polling suh-diviMions No. 6 Gloucester am 1 No.s. 2 and :{
rumberlami, was to the ott'ect that they hud put numbers
on'the bacKHof the ballot papers corresponding with the
numbers on the voters' list, believing it was rheir duty
so to numbei- the ballots.
The arguments of counsel aw icferred to in the judg-
ment of the (\)urt, which was delivered by
Moss, C. J. ().— My learned bint her and myself think
it quite unueces,sary to trouble Mr. ()'(}Hia with answering
the objections to the )>nmd facie ca.se advanced l>y the
petitioner.
The general objection is couched in the form that the
Iwllota have been so marked as to constitute a violation
of the principle of the Ballot Act (R. S. O., c. 10), which, it
has been correctly .said, is the 'securing of secrecy and the
non-identification of the voter ; but, in working out this
principle, we are obliged to look at the precise machinery
which the Act has devised and employed. We can only
gather the nature of that machinery from the words which
the Legi.ilature has cho,sen to use. Turning, then, to the
«Oth section, on which reliance is placed on behalf of the
petitioner, we Hud it contended that there has been a viola-
tion of the principle of secrecy, which that section was
designed to .serve. That section, in effect, requires the
Deputy Returning Officer to prefix to the names on the
voters' list numbers. Those numbers, it appears in the pre-
sent case, I think in the tnree polling sub-divisions now in
question, were consecutive. I see nothing in the section to
actually prohibit such a mode of numbering the names by
the Deputy Returning Officer, but it might not be out of
place here to remark that it is highly inexpedient for such
a cour.se to be adopted. Although the lavirhas not prohibited
it, and although the law doe.ii not intend that the election
should be avoided simply because the Deputy Returning
Offic€fr has chosen to mark the names upon the votei-s' lists
with consecutive numbers, it is quite obvious that the great
1H79.]
KIJSHEM, (2).
•■521
object <,f «ecunnff i.on-idoatiHcation will 1„, n....,noted l,v
that TI.e Deputy R«turni„K Officer shall, upon .eceivin.
he copy o the voters' list fro... the polli„,'sul.-diviH "^
for which he .s to act. prefix u nun.lJr to Tve.-y ..a,, in
Deputy Returiung OHice.." I take it it .eo- »« no con.
Jt is tWther urge,l though that would I.e inu..ate,ial
heie. m consequence of the sn.all nu.nber involved that
number to two names on the list. It appears fron. his
evidence that the Hgures are not his. He has no Zo n
pos.tuely by whon. they were ,nade. but he has : Z
that they must have been made by his poll clerk and I
to^th \ th f't"' "" ^^''^''^•^*" '"•^«-^--- ^-•<"n
cS H . T "' "P'"^°" '^''y ''''^ ""^J'^ ^'V his poll
with the law to pernnt any one else to see the nu.nbers.
and we-n.ust act on the principle oocmr. jrra.umnMnr riU.
€S8B (fCt(X.
thl fZ '" ?' "^-'^^f.'"" ""^'•''' ^"^'■^^"tions 7, H a,ul <) of
he .)Oth section. That is the section which prescribes
nLT I ? '"^""^"'^ ^'^'"'^ •^•^""'^1 '- ^^dopted by the
Deputy Returning Officer upon a vote being tenlred.
Afte. having ascertained that the name of the voter is
upon the list and after having heard and .lisposed of a..y
objection which may be made, in the manner provided by
the Act, the 7th sub-section prescribes the method of prJ-
ceeding to actually give the vote by ballot. The Deputy
back ot the ballot paper and upon the counterfoil attached
thereto, to detach the ballot paper and deliver it to the
vo er and to •' write, or otherwise mark, upon such counter-
foil, the number prefixed to the name of such per,son upon
'"■W-
."•ii
I'ltoVfNCIAI, KLKCTIONS.
[A.n.
the vok'fs' li.st;" and thi' only mark he in to iiiaki- oppo-
Mite the tmine of tlvc voter on tho liHt 'm on« which sholl
"'If'iiotc tliat lit- hiis ifceivL'd a ballot papor." Any ticik
ui mark of any kin<l. to (k'notc that, complies with the
MtatutH.and is all. inih-i-d, that it (h'sif,mc.|. Now, in theso
iiwes. it appears that tlu' Deputy Retuiiiinj,' Officei-s en-
• loisf.l upon the l)afk of the hallot paper not merely their
initials, hut the ninnhecs whicli ajjpeared upon the votei-s'
lists, and which, from th<' voters' list, had lieen |)roperly
transferred to the counterfoil. (Tnder the Act of 1874
{H. S. ()., c, IO>,that would, I appr(;hend, have Jieen n 'atal
ohjection to the validity of the vote, hut the Act of 1879
(42 Vic. c. 4) wa,s passed for the veiy purpose of remedyinjr
that ditHculty. That statute, wliile still renderinj,' thc^
l>allot paper invalid if marksare phu'ed upon it other than
the propel' maiks, namely, the official number correspond -
ino; to that upon the coiniteifoil, and thi! initials of the
Returning Officer, contains this .saving dau.se : "But words
oi' marks corruptly oi' intentionally, or by mistake, written
or made, or omitted to be written or made, by the Deputy
It.turning Officer on a balh.t pape,-, shall liot avoid the
same."
I am of opinion that this cast-, upon the evidence, comtis
clearly within the proviso that, where the mark is made
by mistake of the Dcqjuty Returning Officer, the ballot
paper is not avoided, but the vote is entitled to be counted.
I'pon the evidence here it is beyond controversy in my
Juilgment that the Deputy Returning Officers honestly,
although mistakenly, placed the numbers upon the ballot
papers. They had no intention of violating the law, I
am (piite sure. Their mistake was one which arose from
misinti^rpretation of the Act, and was precisely that kind
of mark upon thi- ballot paper which the Legislatine did
not intend to have the effect of destroying the vote. Mr.
Mclntyre has pointed out difficulties that might ari.se, and
olijoctions that might be taken to that mode of procedure
by a Deputy Returning Officer— that a Deputy Returning
Officer who is a parti.san might be enabled in this way to
IN7H.J
msMKi.r, (2i
52;J
?;iiin ail unfair adviiiitajfi'. That flittionlty in om- w« ar«
nl>lij,'('(l to cncoiiiitfr in t-ach particular case as hcst tli»"
( 'ourt can. The etf'ect, if that wen* eNtabliHhed in a par-
tiiular case, nii^jlitlu' t<i show that the inark had nut, bcon
iim<h' mistakenly, hut it would h*- hard to show that it
had not been niadt^ corruptly. But thc^ languaf,'e of the
liCgislature is plain, that, under such circumstances, it did
not intend that the act of the Deputy Heti'-ninf,' OfKcor,
l>y whatever motive animnted, should h i /e th- -Hect of
destroyinj,; the fiancliise.
Tlien, in fuitherance of that argumen . it van con i ended
on l)eha]f of the petitioner that section M>7 who.-.d that
sueh an objeelion as this sliouid he fata! t(, ,ie vote. The
HrjL^i.meut is that there has been a disroj^aid of tht; prin-
cijiles laid down l)y tlie Act. Now, we are to ondeavor to
arrive at the principles laid down by the Legislatuie
which ^fovern the election now in ,|uestion by puttinj;
to>,'ether the Act in tlie Revised Statutes, and the Act
l)assed in l«7}». The principles are, I think, what I have
indicated. P\)llowed out, they show tli'at the petitioner in
this caise had a nuijority of the votes, that he was entitled
to be returned, and that the onus is now east Ufion the
respondetit to attack the return.
The charges of eoirupt practices were then withdrawn
^»n both sides; and after evidenct^ had been i^iven on he-
lialf of till- petitioner atf'ecting the question of costs, the
following jiidoiiicnts were delivered:
Moss, C. J. (). — The (juestion of costs is one which could
not have ari.sen in this precise form previous to the Act
of I87f». Until that uniending Act which I have had
occasion already to refei' to, was passed, the effect of what
lias been shown to-day would not have been to entitle
Mr. Baker to the seat. It is only by virtue of the saving
clause contained in that statute that he is enabled, not-
withstanding the mistake of the Returning Officers, to
receive that seat to which the votes of the people entitled
liim.
-'•■a0(ii!.'-,
524
PROVINCIAL ELECTIONS.
[a.u.
Now, the first question in endeavoring to dispose of the
matter of costs, is to ascertain, if we can, with whom tJie
wrong originated. The Deputy Returning Officers had
undoubtedly made a mistake; but for that it cannot b»t
contended that the respondent was in any way liable. In
the next place, a recount was asked for ; aiul without
entering into details as to the part which the respondent
m^ have taken in setting the Judge in motion, it is quite-
sufficient to observe that, whatever was that part, the re-
spondent was acting within his legal rights, and that if
he failed in prosecuting the recount with success, the law
had already made the provision for the penalty. He did
not procure the return which the learned Judge in tht-
discharge of his duty made. He procured that return, at
least, no further than by asking the Judge to make th.^
recount, and thus exercising his strictly legal right. Thus
far, therefore, the respondent appears to have committed
no act of which the petitioner irs entitled to complain.
In the next place, we have to consider what was open
to the Junior Judge upon the recount. It is, to .say the
least of it, by no moans clear that the learned Judge could
have received any of the evidence which we liav^'e heard
to-day explanatory of the manner in which the Deputy
Returning Officers fell into this unfortunate mistake, ft
18 quite true that the Judge of the Countv Court or the
Junior Judge, in proceeding with the reoouut, is to pro-
ceed in the manner pointed out by the 105th and 106th
sections, and that the 105th section has been amended
by the Act of 1879 ; but no nrovLsioa has been made for
the learned Judge entering into an investigation of the
motives which led to the D, puty Returning Officer making
any mark upon the ballot beyond those strictly authorized
by law. If we turn for a moment to the wording of sec.
18 of the Act of 1879, I see the words are simply: "Words
or marks coi_ aptly or intentionally, or by mistake, written
or made, or omitted to be written or made, by the Deputy
Returning Officer on a ballot paper, shall not avoid the
same."
1879.]
UU8.SEI.L (2).
o'Zn
What is the tribunal which is invested with the Juiis-
«liction to determine whether " words or marks" which, in
point of fact, are not authorized by the law, have been
" corruptly or intentionally, or by mistake, written oi-
made ?" It is at least a grave (juestion, and the inclination
of my own opinion is to answer it in the negative as ti>
whether the learned Judge could entertain, could listen to,
such evidence upon an application which pointed meruly
to a recount, and while discharging the duties of a minis-
terial officer, acting under the clauses relating to re-
counting. At any rate, the learned Judge was not asked
to enter upon any such investigation.
Some question is made as to the sufficiency of the notict^
served upon Mr. Baker. The notice was quite sufficient,
at any rate, to enable him to appear with his counsel and
object to its insufficiency. It would have been the easiest
thing in the world to ask the learned Judge to adjourn
the proceedings, and enable Mr. Baker to adduce before
the Judge such evidence as this Court has heard to-day
from the Deputy Returning Officers. That coui-se was
not taken. Mr. Baker chose to rely upon his objection to
the notice. The law has not provided for the form of the
notice in such a matter, that I am aware of. Mr. Baker,
at any rate, knew this investigation was going on, 1 have
no doubt. Then, if it was desirable to adduce evidence
before the learned Judge, what cour.se was open ? I appre-
hend it to be quite clear, and indeed Mr. O'Gara conceded
that it was quite clear, that a petition was absolutely
necessary. There stood the return, declaring in due form
of law that Mr. Morgan had been elected, by the majority
of the duly qualified electors in this constituency who
hati voted, to represent them in the Legislative Assembly.
How was this to be got rid of, unless by taking pro-
ceedings under a petition ? No answer to that can be
suggested. Then what should the respondent have done
upon the petition being filed ? He was charged with per-
.sonal corruption, and therefore not in a position to have
resigned ; but supposing him to have been in a position
«
•MR
MWP
•)20
PROVINCIAL KLECTIOXS.
[a.d.
to l.avo icsigjied eitliei- before the petition was Hied or
after, what would have been the result, suppose; he ha*!
resigned before the petition was filed and the petitioner
had not ehosen to prosecute any petition. I asked th.-
learned counsel to define the exact attitude which his
elient would have occupied if Mr. Morgan had chosen to
recede froin that position. It is extremely difficult to say
•what would have occurred. Mr. Baker would not hav^
betm declared retume<l by any duly recognized authority
an.l the Legislature would have had to recognize the'
return of the Judge, or given some special directions on
the subject. It is unnecessary to say that the Legislature
ha,s contemplated the withdrawal from itself of the ^ivin-.-
of special directions in such matters, and desires them ali
to l)e dealt with according to the general law.
Then a similar observation applies to the case of a
wlthdrH^val afttn^ the petition. Supposing him to be in a
position to do so, he could only have done so a certain
tame after it had been filed, and by taking certain steps.
He does, before serious proceedings are taken, file a dis-
claimer as far as this point is concerned, though it contain.s
a ].roviso that if Mr. Baker still claims the seat his rioht
will be resisted.
That does not enter into the .piestion of the general
costs, which at present the C.'ourt is considering. In the.se
cases, as I understand the doctrine, the Courts have always
taken a wide and liberal view of the right of a person in
the interests of the public, to contest a return which was
<it all (luestioned. If there was teal substantial reason for
• luestioning the return of Mr. Baker, neither Mr. Morgan
nor any other p. r.son, supposing Mr. Baker to be returned
w..uld have been culpable-would have been doing any-
t ungbut .hscharging a duty to the public-in contesting
the return. If he had done .so and failed, he would have
had to pay the costs ; but if a petition was necessary, and
he simply stood on the defensive, and said : You, the peti-
tioner, have not been declared to be duly returned ; you
can only show that you were entitled to the .seat by show-
ing that th
ally, or by
it is in the
entitled to i
that does r
take. 1 do
It is clear tl
to receive e
turning Otfi
the.se en out
essential fo
(^ourt and e
In my o{
which I hav
that each of
costs.
Blake, V.
at. I think
fraud or ini]
tioner or th*
impeached 1
from the act
the statutes-
pendent offii
of this duti
they so deal
of 1879, the
while neithc
sible for tha
tiling they 1
that by then
Then the m
of the Cour
Justice has
lecount of tl
the matter ;
and on conn
1879.]
UUSSKfJ,
r^-n
ing that those marks were piit " corruptly or intention-
ally, or by mistake," by the Deputy Returning Officers;
it is in the interest of the public that, before you are
entitled to enjoy the scat, such proof should be given—
that does not strike one as an unreasonable course tu
take. 1 do not indeed .see what other course was open.
It is clear that if the Junior Judge was not in a position
to receive (.'vidence upon the conduct uf the l)e])uty Ke-
turning Otticers, upon the motives tiiat led them to place
the.se eri'oneous mark.s upcm the ballots, it was ali-solutoly
e.s.sentia! for the petitioner to come befoie an Electi<»n
("ourt and establish his right.
In iny opinion, the result of these considerations, to
which I have no doubt others might '^eadily be added, is
that eacli of the parti(!s should bear his own shaie of the
costs.
Bl.AKE, V^-C. — 1 agree in the conclusion that ?.« arrived
at. I think one must bear in mind that in this case no
fraud or impropriety has been brought home to the peti-
tioner or the respondent ; that the result which is being
impeached by the petitioner in this case i,s' one flowing
from the act of the officers that have been appointed undei-
the statutes. The Deputy Returning Officers are inde-
pendent officers, selected under the statute for the purpose
of this duty. Unfortunately, ignorantly but honestlj",
they so dealt with the ballots as that, except for the Act
of 1879, these votes must neces,sarily have been reject(Ml.
while neither the petitioner nor the respondent is respon-
sible for that. That was an act entirely outside of any-
tiiing they had to do in the conduct of the election. So
that by them, and by them alone, has this difficulty arisen.
Then the matter was brought before the Junior Judgi-
of the County ; and I (juite agree with what the Chief
Justice has said, that his duty began and ended with a
recount of the votes ; that he could not have investigated
the matter ; and certain ballots were produced before him .
and on counting those ballots, looking at .some of them.
-r^"'
528
PROVINCIAL ELECTIONS.
[a.d.
he saw there was a mark therq which might have iden-
tiHed the voter in such a way as to avoid the election
under the Act. He could not obtain the explanatory
evidence ; he could not set the matter right. Up, there
fore, to the period of the presenting of the petition, all
lias been a r^atter which cannot be traced to the respond-
ent or the petitioner. It has been a miscarriage, owing
to the conduct, honestly though ignorantly, of the officers
appointed under the statute.
I do not think there has been any case where, under
circumstances such as presented to us to-day, the Court
lias charged a per.son entirely innocent of any impropriety
or wrong conduct, with the costs which have been necessary
in order to set right that which these officers have done
incorrectly. It was necessary for the petitioner that these
proceedings should be taken, that he should set aside, not
a wrong the respondent had done him, but what these
<ifficers had done, in mistaken pursuance of what they
thought to be their duty.
Looking at the fact that Coui-ts have been very desirous
of investigating and examining everything which could
tend to throw discredit upon an election, we would be
closing the door to a fair investigation in many cases, if
in this one the respondent were to be charged with tlie
costs of a proceeding to set aside, not any wrong done by
him, but by the officers, with whose appointment he had
nothing to do. I think, therefore, that each party must,
mifortunately, bear his own costs of the litigation up to
the present.
(13 Journid fjCffis. Annan., I««0, p. 9).
1879.]
DUFFERIN.
)29
DUFFERIN.
Before Chief Justice Moss.
Toronto, m/i OHober, 187U.
James Sleiohtholm, Petitioner, v. John Bark, Hespondent.
Preliminary objection— Status of Petitioner, how impeachtd.
As the Ontario Act (R. S. 0., c. 11) makes no provision similar to that in
the Dominion Controverted Elections Act, 1874 (37 Vic, c. 10, Can.),
limiting the time within which preliminary o'.jections to an election
petition should be taken, the special circumstances of each case must
determine whether 'the preliminary objections have been taken with
sufficient promptitude.
An objection to the Matusoi a petitioner cannot be taken by preliminar-
objection.
A petitioner in an electio- petition who has been guilty of corrupt prac-
tices at the election complained of, does not thereby lose his stafun as a
petitioner.
Except where there are recrir-natory charges against the unsuccessful
candidate, or for tlie purpose of declaring the petitioner's vote void
on a scrutiny, the conduct of a petitioner at an election cannot be in-
(iiiired into. And in this case there is no distinction between a can-
didate-petitioner and a voter-petitioner.
Semble, That if the petitioner in this case was proved at the trial of the
election petition to have been guilty of corrupt practices at the election
complained of, the petition could not be dismissed.
The petition contained the usual charges of corrupt
practice.s.
After the petition was at issue, but before the day for
the trial was appointed, the respondent became aware of
a charge of corrupt practices against the petitionei-, who
claimed to be a voter at the election in question. There-
upon he obtained a sunnnons calling upon the petitioner
to show cause why the petition should not be taken off"
the files, on the ground that the petitioner had been guilty
of corrupt practices during the election. After the argu-
' inent of counsel the learned Chief Justice gave judgment
as set out in the head note.
The case is reported in 4 App. R. 420.
fi30
PKoVINCtAL E/,E(,Tl()NS.
[A.n,
DUFFKRIN.
Befoke (;hief Justice Moss and Mk. Justice Aimoirn.
Okanoevillk, oh, .'hci'mher, I,s;<-
James Sleujhtholm, Petitionn .John U.ut.i, RcHpomhnf.
AitmiiuiioH ofCouiMel.—Corrtpf ])r,ictic,.ii ami oth,-r ilhutU ^ /«. -
li. S. <)., c. 10, s r59.
■|'he respondent was tlectc a '.y a majority of 261, ami at the trial couaa '
for the respondent admicted that tliere was evidence capal.lc of U \\\<
^roduciM tth..;> would have the effect of avoidinir tne olect'tn Uirlcr
'V "■. " ' ,'■'' *• '''^' ""«' *he Court on such Admission deolired tiic
election \\,--<i.
The petitiofi cr.naiiKjd tlx; usual charges of corrupt
practices. Tl^- rspoiidi-nt had been declared elected by
a uiajorif.y (if 'Ti
Mr. McOtrtk'/, Q.C, and Mr. P. M. Barker, for petitioi»>-.
Mr. Hodgim, Q.C., and Mr. i). L. Scott, for respondent
After the reading of the petition, counsel for the peti-
tioner Ktated that he did not propose to offer evidence of
corrupt practices by the respondent. But he was in
po.ssession of evidence which would show that acts had
been committed by those for whom the respondent wa-s
responsible, as his agents, in the legal signification of thi'
term, both in character and number sufficient to avoid th(?
election under the Ontario Act (R S. O., c. 10, s. 159>.
Counsel for the respondent then stated that from th.>
instructions given to him, he had to say that there was
evidence capable of being produced which would have
the effect of avoiding the election.
The section of the Election Act (R. S. ()., c. 10, s. 159)
is as follows : " To prevent the expense and trouble of '
new elections when unnecessary and useless, in case of a
corrupt act or acts being committed by an agent without
the knowledge and consent of the candidate, if the corrui
act or acts was or were of such trifling nature, or was
were of such trifliiitr extent, that the result cannot hi
been affected, or l^ , osonably suppose*! to ha\ ■
18T!).]
SOUTH WENTWORTH.
631
nff^:ted by such act or acts, either alone or in connection
mih other Illegal practices at the election, such corrupt
t'A'i .;r acts shall not avoid the election."
Moss, C. J. O.-We declare the election void. We will
report to the Speaker that the election ought to be set
n.Si.J.3 but that corrupt practices have not been proved to
nave been committed by the respondent. The petitioner
i« entitled to the general costs of the cause.
(13 Journal Legis. Asscm., 1880, p. 7.)
SOUTH WENTWORTH.
Before Chief Justice Moss and Mr. Justice Galt.
Hamilton, 7<A to 10th November, 1879.
Toronto, 29th December, 1879.
Samuel Nash Olmstead et al, Petitioners, v. Franklix
Metcalf Carpenter, Respondent.
''SiJtSr'^^ ""'' ~ ^'''•"^"'«- - ^^^' ^o vote - Tom ballot -
tenants or occupants SeDronP-tvl« J <2) minors ; (3) not owners,
sons not residC^witl. th«?rTf\,^ assessed to them ; and (4) farmers-
law. On a mSritSro/t S pSnts'^™' '' -^'^""-'^ '^
//eW that under the "Voters' Lists Finality Act" (41 Vic o '21 « •!>
^ ShSeTpe^ct*'^ ''^~^ ''^*"««" '""^ E'^gl^h -d Ontario statutes
36
«
m
532
PROVINCIAL ELECTIONS.
[A.D.
The petition contained the usual charges of corrupt
practices, and claimed the seat for the defeated candidate,
Nicholas Awrey. The vote at the election, after a re-
count by the County Judge, was for respondent, 1,231 ;
for Mr. Awrey, 1,230 ; majority for respondent, 1.
Mr. B. B. Osier, Q.C, and Mr. Teetzel, for petitioners.
Mr. McCarthy, Q.C, and Mr. Robertson, Q.C, for re-
spondent.
During the proceedings application was made to strike
out the following classes of objected votes in the parti-
culars filed by the respondent : Persons objected to as
(1) aliens ; (2) minors ; (3) having no interest as owners,
tenants or occupants in the land assessed to them ; and
(4) farmers' sons not residing upon the farm, as required
by law.
The Court held, that by' the Voters' List Finality Act
of 1878 (41 Vic, c. 21), they were precluded from inquiring
into the legality of the votes included in those lists ; and
that the only votes that could be inquired into were those
specially excepted by section 3 of the Finality Act. The
particulars moved against were then struck out.
A scrutiny of votes took place before the learned Judges,
the result of which is set out in the judgment, which wat,
delivered by
Moss, C. J. 0. — Of most of the very numerous questions
raised upon the petition we disposed during the progress
of the trial, and to them it will be unnecessary now to
refer.
We reserved for consideration the case of Philip Gage,
whose vote was rejected upon the counting of the ballots.
This voter, who was a man of intelligence, accustomed to
exercise his franchise, and familiar with the mode of using
the ballot, through some curious mistake or inadvertence
tore the paper in two after putting a cross opposite the
name of Mr. Carpenter, and handed the marked half to
the Deputy Returning Officer, by whom it was deposited
1879.]
SOUTH VVENTWORTH.
533
n the ballot box. It immediately occurred to Mr. Gage
that he had made a mistake, and he so stated to the officer
at the same time giving him the other half, and demanded
a ballot paper on the ground that he had inadvertently
spoiled tha which he had received. To this request-cor
rectly, we think-the Deputy Returning Officer refused to
accede for the voter had disabled himself from complying
with the conditions prescribed by the statute of returning
the original paper. But without laying down any ruk
of general application, we are of opinion that under the
specal circumstances proved the vote should be allowed
This was the only torn ballot paper deposited, so that its
identity admits of no doubt. There is no question as
to the good faith of the voter. His political sympathies
were not doubtful ; and it would be simply absLd to
suspect him of having resorted to a trick for the purpose
ot showing tor which candidate he had cast his vote. We
think therefore without violating any sound principle,
or without opening the door to any dangerous evasion of
the .ninciple of securing secrecy, that we can allow this
\ OuG,
votes of Alva G. Jones and Geo. A. Davis, on the ground
dL r.l '"! *T'^ ^"""™ ^''y''- We decHne to
diturb their votes, because it has not been proved to our
Toilthr: *'' •^'^"'"'" '''''' ^^ ^'^^'^^"-^
The other questions are divisible into three classes •
The first and most important depends upon the con-
struction o the 2nd sub-section of the 3rd section of the
the r . fi ; 1 r'f ^'. ^^'' ^^ "^^^h '' '« ^-^-*^d that
the certified list shall, upon any scrutiny, be final and
conclusive evidence of the right to vote, except as to
persons who at any time subsequently to the list being
certified are. or have been, non-resident, either within thf
n unicipahty to which the s.icl Hst relates, or within the
electoral district for which t]. ■ lection is being held, and
who by reason thereof are, under the provisions of ' The
534
i'HO VINCI Al KLECTIONS.
[A.D.
Election Act ot' Ontario,' incompetent and disentitled to
vote." The T-articular portion of that Act to which refer-
once is nifule is containe<l in the 1st suhdivision of the
7th sectioii This does not enumerate any grounds upon
which a person shall be incompetent nv -lisentitled, but
merely states the nc^cessary qt) ..iucatiou, which For our
present purpose is that he shall be, at the time of the
election, either an actual bona fide owner, tenant or occu-
pant of real property of certain value, for which he has
been entered upon the roll, or in case he has ceased to
bt^ ",uch owner, tenant or occupant, a resident of the
electoral district. The judicial construction placed upon
this enactment permitted great latitude of inquiry upon
the right to vote upon a scrutiny being held. There can
be no question it was to prevent this extravagant range
of investigation, which reached •' culminating point in
one memorable instance, the Vet oi 1S78 was passed.
Looking at the whole enactment, the intentior of the
Legislature seems to be reasonably clear. But wr mu.st
confess that the particular sub-section now in question
does not seem to be happily framed. Indeed, it is scarcely
too much to say that it invites the discussion which it has
received. It does not appeai to us to be possible to apply
to it any rule of minute verb-il criticism ; -uch a test it
obviously will not starid ; but k( ping in view the dis-
cernible object the ' gislatui we think its effect is
to render the Voters' List tinal, except where there has
been a subsequent change of position, l>y the voter having
parted wit., the i- .oi- t which he had — or by t;.) Assess-
ment Roll appeared to have — in th': property, and be-
coming also a non-resident of the Sectoral division
Where there has been no chanre ot
room for opening an inquiry lie
is to leave the p ;,sition of c<
unaiiected.
The second class of cases reserved is that of voters »'^ ■>
chose to mark their ballot papers with a straight line,
instead of anything approaching to the form of a cross,
opposite the name of a candidate.
:is status there is no
■>ult of this decision
stants for the seat
1879.]
SOUTH WENTWORTH.
535
The decisions in our Courts upon the provisions of the
Donunion Act, which do not appear to bu dlstinguisliahlo,
are against the validity of such votes. But it is urged
that these decisions are irreconcilahle with and should be
treated as overruled by the judgment of the Court of
Connnon Pleas in England in Woodward v. Sarsons
(L K, 10 C. P. 74G).
We an much impressed with the force of Mr. McCarthy's
argument upon this point; but, upon consideration, we
do not think it can be sustained. The judgment of the
English Court proceeded upon the ground that lae making
of a cross was merely directory and not mandatory. Tliere
is no reference to a frjss in the enacting part of the Im-
perial Statute, but it makes its appearance, for the first
time, in the instructions for the guidance of voters.
It is in fact simply given as the appropriate mode for
the vote, indicating his choice. In our statute it is very
different. It is expressly enacted that the voter shall
mark his b: '; t in the manner mentioned in the direction
1 - placing a cross on tlie right hand .side, opposite the
name of the cp date for whom he desires to vote. The
natural and ol.vious m* ning of this language is, that he
must make a cross to 'fy his choice. The whole policy
of securing secrecy pit adf the suggestion that the
voter is at liberty to make any mark he pleases ; and the
Legislature has therefore prescribed a kind of mark which
IS the easie.st and most familiar— that indeed which is
used by the illiterate.
In view of the difference between the English statute
and ours, we do not feel at liberty to refuse to follow the
decisions of our own Courts.
We may observe that this conclusion seems to be jus-
tified by the amendinsr Act of 1879, which enacts that a
voter may mark his ballot paper with a cross, eithor (as
heretofore) on the right hand side opposite the name of
the candidate for whom he desires to vote, or any other
place within the division which contains the name of the
candidate.
mpi
536
PROVIN( lAL ELECTIONa
[A.D.
While removing the objection as to the prcciHe position
of the mark in tli compartment, this see ma to insist upon
its form being retained. As this was the view tak<'n by
the learned Judge of the County Court, our decision upon
this point does not affect the result of the scrutiny.
The third class is that of voters who have from some
straii '(1 perversity put a cross upon the back of the ballot
paper only. >
We are of opinion that this mode of marking is not
sanctioned by the statute, and we disallow these votes,
the effect of which is to strike off one vote from Mr.
Carpenter and two from Mr. Awrey.
The result of our judf^ment is as follows : The respond-
ent had upon the recount a majority of one ; to this we
have added the vote of Philip Gage, and from it have
struck off one vote, on thq ground that the mark was
endorsed on the ballot instead of being made on its face ;
and we disallowed on various grounds, during the progress
of the trial, twelve votes.
This would have placed respondent in a minority of
eleven. But we struck off from Mr. Awrey's total three
votes during the trial, and two are now disallowed by
reason of the marks being endorsed.
During the trial, however, we added three votes to his
number. On the whole, therefore, we give him upon the
scrutiny a majority of nine.
We find that Nicholas Awrey was duly elected ; and
that no corrupt practice was proved to have been com-
mitted by or with the knov/ledge and consent of either
of the candidates, and there is no reason to believe that
corrupt practices extensively prevailed at the election.
While unseating Mr. Carpenter, we are satisfied that
he conducted the contest with the utmost propriety and
fairness, and that there is no pretext with charging him
with the slightest violation of the law.
(13 Journal Legis. Assem., 1880, p. 9.)
Divpialyfication
1879.J
STORMONT (2),
387
STORMONT (2).
Befoue Chief Justice Moss, and Mh. Vice-
Chancellok Bi-ake.
CoriNWALL, .'»// Decemlifr, 1870.
Edwatu) Empey ft al, Pdlflonern, v. Joseph Kerr,
ReHfondent.
lH»qwil\)ication qf an ivjenl /or corrupt praclkfH, R.S.O., r. 10, ni. I114,
174, 175.
The election having been declared void 011 aouount of the corrupt pric-
ticea of an asent of the respondent, the Judges acting as a Court fur
the trial of illegal acta coinuiitted at the election, after notice to auch
agent, ^^rautud an order for the punishment of such agent by fine and
di8({ualiflcation.
The petition in this case contained the usual charges of
corrupt practices.
The majority for the respondent at the election was 1 1.
It appeared from the evidence of one John M. Campbell
and others, that a number of voters had been bribed to
vote for the respondent.
At the close of the evidence, and after the argument of
Mr. Bethune, Q.C., and Mr. A. F. Mclntyrc, for petitioner,
Mr. Hector Cameron, Q.C., Mr. Bergin and Mr. Whitney^
for respondent,
The Court held that corrupt practices had not been
established against the respondent personally ; that the
agency of Campbell had been established ; that he (Camp-
bell) had been guilty of corrupt practices, and that the
result of the election had been affected thereby. The
election was thereupon declared void.
Mr. Bethune then moved for a summons, under R.S.O.,
c. 10, 8s. 174, 175, calling upon John M.Campbell to show
cause why he should not be punished pursuant to s. 164,
by fine and disqualification.
338
PHOVINCIAL ELECTIONS.
[a.d.
ill
It
% 'M
Mr. Cameron thereupon appeared for Campbell, and
admitted that he could not deny that he had been guilty
of wilful and corrupt bribery and corrupt practices, and
that he must therefore be disqualified.
The Court thereupon granted the order.*
*The form of cob viction settled by tlio Judges in the Lincoln case (ante
p. 480) is as follows :
Be it remembered, tliat from evidence given before us, the Honorable
Christopher Salmon Patterson, and the Honorable Samuel Hume Blake,
^Y'^°^^^^ J"''?^^ *PPO'"'ed for the trial of election petitions at the city
of St. Catharines, in the county of Lincoln, on the twelfth day of Sep-
tember, in the year of our Lord one thousand eight hundred and seventy-
six, at the trial of an election petition, wherein Alexander Hutchinson
and Nathan Henry Pawling were petitioners, and John (Charles Rykert
was respondent, and whereby tlie said petitioners alleged that the said
respondent was not duly elected as a member of the Legislative Assembly
of the Province of Ontario at the election for the electoral division of the
county of Lincohi, holden on the eighteenth and twenty-lifth days of
February, in the said year of our Lord one thousand eight hundred and
seventy-six, John Junkin, a person riot a party to the said petition,
appeared to have committed a corrupt practice against the form of the
statutes in such case made and inovided, by giving or agreeing to give,
and offering or promising, a sum ur sums of money or other valuable con-
sideration, and promising or endeavoring to procure money or other valu-
able consideration, or discharge or release of rent then due by one Arthur
Belcher or one Anne Belcher, to the said Anne Belcher (wife of the said
Arthur Belcher), or on behalf of the said Arthur Belchor, in order to
induce the said Anue Belcher to procure the vote of the said Arthur
Belchor at the said election, or to procure or induce tiie said Arthur
Belchor to vote for the said respondent at the said election, or to refrain
irom voting.
And the said Jc hn Junkin was charged with the said corrupt practice
upon the said evidence before us the said Judges, whereupon we ordered
the said John Junkin to be summoned to aopear at Osgoode Hall in the
city of Toronto, on Thursday the fourteenth day of December in the said
year one thousand eight hundred and seventy-six, at noon, before the
Court for the trial of all illegal acts committed during the said election
to show cause why he should not be adjudged guilty of bribery pursuant
to the statutes in that behalf, in that he the said John Junkin had com-
mitted the said corrupt practices ; and the said John Junkin was duly
siunmoned so to appear and to show cause, ai has been made to appear to
us now sitting as sucli last mentioned Court in pursuance of the Election
Act of 1870, at the time and place aforesaid, by the affidavit in writing of
William Davia Swayze, and has neglected or refused to attend in pursu-
ance of such summons ; and thereupon proof having been duly made before
us by the said affidavit, that the said John Junkin was duly summoned
l)y the personal service upon him by the said Swayze of the summons
issued by us in that behalf, we pronounce judgment in the absence of the
said John Junkin. And it appearing to us, the said Judges sitting as such
last mentioned Court, from the said evidence, that the said John Junkin
IS guilty of a orrupt practice, namely, bribery by offering and promising
to procure vaiuaHe consideration to or for the said Anne Belcher, that is
to say, the discharge or release of rent due by her husband the said Arthur
Belcher, who was a voter at the said election, in order to induce the said
IS'D
1879.]
WEST HASTINGS (2).
V.H)
WEST HASTINGS (2).
Before Chief Justice Moss and Mr. Justice Galt.
Belleville, -^A and 5th Novemher; 16th and 18th Dvcemhcr, 1870.
Toronto, SOth December, 1879.
Thomas Holden, Petitioner, v. Alexander Robertson,
Respondent.
Corrupt acts affeelinrj the result of the election— R. S. 0., c. 10, s. loO—
Oniis of proof.
The majority of the respondent was 337 ; but it appeared in evidence that
two aeents of the respondent had bribed between forty and fifty voters ;
that in close proximity to the polls spirituous liquor was sold , id given
at two taverns during polling hoars, and that one of such agents took
part in furnishing such liquor; and that such agent had previous to the
election furnished drink or other entertainment to a meeting of electors
held for the purpose of promoting the election.
Held, that the result of the election had been affected thereby, and that
the election was void.
Per A[os,% C. J. — Prima facie corrupt practices avoid an election ; and
the onus of proof that tliey are not sufficient to affect the majority of
votes rests upon the respondent.
Anne Belcher to procure the vote of the said Arthur Belcher at the said
election.
Therefore, it is adjudged by us that the said John Junkinbe convicted,
ard he is hereby accordingly convicted by us of the said last mentioned
corrupt practice.
And V- J do further adjudge that, under and by virtue of the statutes m
that case made and provided, the said John .Tunkin hath for his said
offence incurred the penalty of two hundred dollars, and that durini; the
eight years next after the date hereof he shall be incapable of being
elected to and of sitting in the Legislative Assembly of the Province of
Ontario, and of being registered as a voter and of voting at any election,
and of holding any office at the nomination of the Crown or of the
Lieutenant-Governor in Ontario, or any municipal office.
And we do further adjudge that the said John Junkin do pay the said
penalty of two hundred dollars to the Sheriff of the county of Lincoln,
on or before the fifteenth day of January next, to be by the said Sheriff'
paid and applied according to law. And if the said sum be not paid to
the said Sheriff on or before the said fifteenth dav of January next, we
adjudge the said John Junkin to be imprisoned in the common gaol of the
county of Lincoln until he shall have paid the same.
Dated at Toronto, this fourteenth day of December, in the year of our
Lord one thousand eight hundred and seventy-six.
(Signed), C. S. PATTERSON, J. A.
S. H. BLAKE, V. C.
••nj. „
':?»•"'
540
PROVINCIAL ELECTIONS.
[A.D.
The petition contained the usual charges of corrupt
practices, and claimed that the election was void on the
ground that the corrupt acts and other illegal practices
had affected the result of the election. The candidates at
the election were the petitioner and respondent ; and the
majority for the respondent was 337.
Mr J. K. Kerr, Q.C., and the Petitioner in person, for
petitioner. *
Mr. Hector Garmron, Q.C., for respondent.
During the argument,
The Chief Justice remarked, that his reading of the
statute was that, jprim^^ fade, corrupt practices avoided the
election ; and the onus of proof that they were not suffi-
cient to affect the majority rested upon the respondent.
The Judge's notes of the evidence of the principal
agents of the respondent, whose acts were held to affect
the result of the election, are as follows :
William Sarsfield: I worked for Robertson on the day
of the election. Was outside man at the Coleman ward
poll. I told Robertson that I must get so and so, and I
suppose he understood I was working for him I was at
the poll until the close. I went and got voters, and also
took them as they came. I used all my influence for
Kobertson. I tried to gee a man named Maloney to vote
I used every inducement to get him to vote. I gave him
Jl and got it back. I suppose it was not enough money
for his vote ; he said nothing about a S4 or .^5 bill. I told
him It was a .So bill ; I showed him a ^o, and I then put a
!U1 into his p. .cket ; he went as far as the door, and bavin.,
examined th. bill, handed it back. I was three or four
times m Walsh's and McNulty's; people were in with me
each time. We went in to get something to drink There
was drinking there all day back and forwards. I under-
stood It was Mr. Holden's whiskey at Walsh's. Menzies
was a supporter of Robertson. I don't know that I .saw
(St>
1879.]
WEST HASTINGS (2).
541
any whiskey at McNulty's except Mulhem's flask. I gave
T. Harris .50c. to try to get him to vote for Robertson ;
I promised him $2 more. He got SI. 8.5 and three drinks.
I had $40 or $45 in my pocket that morning. I received
$3 from one party that day. I spent part of the money
that day ; I can't say how much. I paiii people money to
go and vote for Robertson. I may have bought five votes
more ; I will swear I did not buy ten more. I can't say
how many I paid after the election ; I paid Michael Cahill
$2 ; I don't remember the name of any other person I
paid that day. Burke handed me $3 on election day ; he
didn't say what for ; I had a small bar account against
him. He said nothing as to how the money was to be
applied. I drove Robertson's conveyance that afternoon.
Owing to the non-attendance of one of the agents of
the respondent when called on his subpoena, the Court
adjourned to the 16th December, 1879, when the following
additional evidence was given :
John Johnson : I canvassed for Mr. Robertson on the
day of the election. I was most of the time in the Murray
ward, where there are two or three divisions. I went
with some voters I had solicited ; Peter Morgan and Jolin
Daly. I drove Morgan to the poll in Ontario Struet. I
spent some money that day — about $200 ; I can't say how
much on the election. Moie than $100 ; I couldn't say
more than $1.50 ; I can't say how much. I also treated.
I couldn't say whether +here were fifty ; I suppose there
would be pretty near fifty. I only treated one man whom
I knew to be a voter — P. McNulty ; the others were young
men whom I met on the street. I didn't give more than
$7 to any one voter. I gave from that down to $1 ; $6»
$5, $4, S3, $2, $1.50. I think they would average about
$2.50. I kept no track. I can't say to how many they
were to give $1. It was my own money. I had received
money from Mr. Ashley and Mr. Robertson. I got $50
from Robertson on the morning of the election ; I sent my
brother for it to Robei tson. I got a cheque the Saturday
542
PROVINCIAL ELECTIONS.
[a.d.
before for S350. The election was on Thursday. I got
another $50, I think, on the Monday before, but I am not
sure. I was putting up a building for Mr. Ashley. There
was only one of my workmen named McHugh 'who was
paid for his day. He said he would otherwise have <^one
off to another job. The night before the election 1 .mve
some money to elector^two or three; I can't say how
many. They gave me to understand that they wanted to
spend some money the next day one way or the other I
lent Dick Burke $7 ; I let Jemmy Hughes have $1 ■ I
gave James Sheelin $7.
Cross-exami/iied ; I had no conversation with Robertson
about the election at any time. I didn't talk with Robert-
son about any vote,s, or how they were to be canvassed
The moneys I received were on the building contract. We
had no talk that any of this should be spent on the elec-
tion. I can't tell to how many persons I gave money for
the purpose of influencing their votes ; I can give no idea
I gave money to twenty, twenty-five or thirty persons. I
was present at only one committee meeting; I think
Robertson was there. I took no part at that meeting.
Moss, C. J. O.— The petition in this case contains the
usual charges of corrupt practices by the respondent him-
self and by his agents. The majority was 337. There
was no proof of corrupt acts on the part of re,spondent
himself, but there was convincing and admitted proof of
bribery by at least two persons, namely, Sarsfield and
Johnson, who were his agents. Mr. Cameron, counsel for
respondent, candidly admitted he could not deny the
agency of the former, and the respondent in his evidence
stated, "I asked Mr. Johnson to do what he could for me."
I shall have occasion to refer more at length to the evi-
dence hereafter, but for the present it is sufficient to say
the result of this petition depends upon the construction
to be placed upon the 159th sec. of chap. 10, R. S. 0. That
section is : " To prevent the expense and trouble of new
1879.]
WEST HASTINGS (2).
543
elections when unnecessary and useless, in case of a
corrupt act or acts being committed by an agent, without
the knowledge and consent of the candidate, if the corrupt
act or acts was or were of such trifling nature, or was or
were of such trifling extent, that the result cannot have
been affected, or be reasonably supposed to have been
affected, by such act or acts, either alone or in connection
with other illegal practices at the election, such corrupt
act or acts shall not avoid the election."
By Sar.sfleld's own admission he bribed at least seven
voters; he mentioned two, and stated he might have bought
five more. Johnson admitted he had spent SlaO in the
purchase of votes — for some he paid $7 and for others
SI, but he thought the average was S2.50. This would
represent sixty votes ; but I gather from his evidence the
number was not so large, but would extend to between
thirty and forty, so that we have direct proof that at least
between forty and fifty voters were bribed by these tw^o
agents alone.
It appeared also from the evidence, that in close prox-
imity to one of the polls situate in Coleman Ward, there
were two places at which spirituous liquor was given to
voters ; one of these was kept by a man named Walsh,
and the other by a woman named McNulty. It was not
satisfactorily shown that the respondent was aware that
this was being carried on during polling hours, although
shortly after the poll closed he visited McNulty's in com-
pany with a person named Mulhearn, who gave him
some whiskey out of a flask he had in his pocket. The
evidence was not clear that Mulhearn was an agent of re-
.spondent's, but it was proved that Sarsfield, Bn admitted
agent, was in both these places. He says himself, " Was
in both McNulty's aufl. Wa; .h's ou the day of election
perhaps three or four tim,;''. ; owtijs went in with me
each time." Morton, anoti^^r a'.-tive supporter of respond-
ent, although not an age^v-, said, " Was at the poll in
Coleman Ward during the ui*^ ; Mr. Robertson was there
and spcke to many people ; did not hear him solicit any
544
PROVINCIAL ELECTIONS.
[a.d.
person's vote; Sarsfield, Mulhearn, and Morris worked
actively for Mr. Robertson ; saw people going into and
out of Walsh's and McNulty's ; was once at McNulty's
with Sfersfield ; saw probably twenty or thirty people go
to the houses ; do not know whether Mr. Robertson knew
there was drinking going on ; should think that anyone
there could see that drinking was going on." There were
-several other witnesses who admitted being in those two
places during polling hours, and while the poll was open
in their close proximity.
By the 151st section, "No candidate for the represen-
tation of any electoral district shall, nor shall any other
person, either provide or furnish drink or other entertain-
ment at the expense of such candidate or other person to
any meeting of electors, aforesaid, for the purpose of pro-
moting such election, previous to or during such election
or pay, or promise or engage to p^y, for any such drink
or other entertainment, except only that nothing herein
contained shall extend to any entertainment furnished to
any such meeting of electors by or at the expense of any
person or persons at his, her or their usual place of resi-
dence." By the 11th sub-sec. of sec. 2 of the Election Act
oi Ontario, any violation of this 151st sec. is declared to
be a corrupt practice.
It is plain from the evidence that the liquor dispensed
at these two places was not provided at the expense of
either Walsh or McNulty, but by some other persoiw
consequently was a corrupt practice under the Uth sub-
sec, of sec. 2, above referred to; and as it has been shown
that Sarsfield took part in furnishing this liquor to voters
the respondent must be held responsible, so far as the re-
sult of this petition is concerned, for such acts ot his agent
It was also strongly urged by Mr. Kerr that there was a
contravention of this provision on two other occasions or
perhaps three, namely: one, or perhaps two, at the hotel
kept by Sarsfield, and another at the residence of Mr. R. S.
Young. I think, a,s respects the meeting at Mr. Young's
there was nothing objectionable; it was clearly within the
1879.]
FD
1879.]
WEST HASTINGS (2).
645
exception, being furnished at his own expense and at his
usual place of residence. I confess I did not attach much
importance during the trial to the meeting or meetings held
at SarsSeld's, for the reason that, until Mr. Kerr referred to
the interpretation clause, I considered a contravention of
the 151st section in the light rather of a forbidden than a
corrupt practice, but a consideration of his argument has
satislied me I was mistaken. Moreover, I looked upon
what took place on those occasions as of such a trifling
nature as not to have affected the result of the election ;
but I was much impressed with his contention that when
we are called upon to decide on the effect which a number
of illegal acts may have had on that result, we can ex-
clude none from our consideration. It is plain the meet-
ing in question wa;? held " for the purpose of promoting
the election previous to such election," and also that per-
sons who were agents of the respondent were present and
furnished drink and entertainment to the persons then
taking part in the proceedings ; it is therefore clear there
was an infringement of the law. There were also two
cases of personation proved, but it was not shown that
this violation of the law was done by persons for whose
actions the respondent is responsible ;- still they cannot
be overlooked when we are called upon to decide whether
" the cornipt act or acts was or were of such trifling
nature, or of such trifling extent, that the result cannot
have been affected, or be reasonably supposed to have
been affected, by such act or acts, either alone or in con-
nection with other illegal practices at the election."
We find, then, that there were between forty and fifty
cases of bribery, a large amount of indiscriminate treating
close to one of the polling places — one at a large meeting
the evening before the polling day — which treating was a
corrupt practice under the 11th sub-section of section 2 of
the Election Act, and two cases of personation.
Thus there are instances of almost every corrunt practice
forbidden by the Election Law.
We feel it impossible to say that such numerous illegal
•''46 PROVINCIAL ELECTIONS. [a.D. 1879.
practices cannot be said not to have affected the result of
the election, nor be reasonably supposed not to have done
so. If the present return can be supported, owing to the
lai-ge majority of 337, that would be to determine that in
any case in which the successful candidate has a large
majority it is useless to complain of any infringement of
the law unless corrupt practices can be brought home to
the candidate personally.
We find that the election of Alexander Robertson was
void for corrupt practices by his agents ; and we declare
the election void, and order the costs of this petition to
lie paid by him.
(13 Journal legia. Aaaem., 1880, p. 7.)
;v
^^0
CONTENTS.
PART II.-PROVINCIAL ELECTIONS, 1875,
CARDWELL-Chief JU8TICE Dbapeb, . '*"
OORNWALU-Chanckixoh 8PBA0OB, . \ . . ' '^l
DUNDAS— <• .. • • • 203
EAST NORTHUMBERr,AND-MR. Jvmc^ Qwvnne " ." ' S^
rAl^or^"^°^«'-^r^^™--%- • ■^-
LIKCOLX-MK J..eEQw™ ... Co.:Z'ZZZ^'!^-. .^
.. 'o ~w "• t""'"^ ^^"•''B.SON A Mi.. VICK-CUNCELLOB B.,AKK, 489
~Mk. J STICE PaTTEESON, ... \^
LONDON-Chanckmor Speagge. ... " " f??
PEEL— AND OoPKT OF Appeal, 343
RUSSELI^Cha.v<. . :„,.PBA0OE. ." . ". . " t^
SOUTH ESSEX " .. • ■ • 199
S oxJSRi:'?':^ T"^" ^"^'' ^^ ' co;„x J. ap;ea^ S
oUUTH OXFORL- s ijrvK Justice Dbapbr, (Practice}, . . 2.-»
WELLAND (2)-Mb. Justice G^vynne, • - " " ' ?t^
WESTELCiIN-CHiBKju..rxcEDBAPEB,rPrac««;. '• '. [ ^r.
" — ChaNCELLOB SPBACtOE, ... ool
WEST HASTINGS— " " - - 227
WEST WELLINGTON-MR. Justice Gwvnne, " .' .* ." gJJ
PART IIL-PROVINCIAL ELECTIONS. 1879.
DUFPERIN-Chief Justice Moss, fPracHce), - . 529
KUSSELL (2)-Chief Justice Moss and Mr. Vice.Chancklloe
BliAKE, ....
SOUTH^WENTWORTH-Chief Justice Moss anL Mr. Jus'tice' ''"
STORMo'nT (2)-Ch;ef Justice Moss an"d Mr. Vice-chancellor" ""'
iiLAKK, ••....
WEST HASTINGS (2)-C„,ef Justice Moss" and Mr.' Justice " ^'^
Galt, ...
6.39
mm