Halifax Election Cases

W.

HlETHERING- TON (PETITIONER). ..............

APPELLANT; WILLIAM ROCHE (RESPONDENT) ....

RESPONDENT. FREDERICK

W.

HETHERING- TON (PETITIONER). ...............

APPELLANT; MICHAEL CARNEY (RESPONDENT)

... RESPONDENT. WILLIAM ROCHE (PETITIONER) ......

APPELLANT; ROBERT L. BORDEN

(RESPOND- RESPONDENT. ...................

MICHAEL CARNEY (PETITIONER).... APPELLANT; J.

.RESPONDENT. J.-We need not hear counsel in reply. We believe that it is not necessary to give lengthy reasons why we arrive at this conclusion.

We all agree that this case is governed by the St. James Election Case(1) and the Beauharnois Election Case(2), and previous decisions, more especially in view of the order made by Mr. Justice Russell extending the time for thirty days, which embraces the day on which the election trial was begun.

We hold that there was a valid extension of time and that the trial was commenced within such extension.

The appeal is, therefore, allowed with costs and in the other two cases without costs, and the trial is directed to be proceeded with.

the Hetherington v. Carney, it was admitted that the facts and questions of law were the same as in Hetherington v. Roche, and the same judgment was pronounced.

In the two other cases the appeals were allowed without costs.

Appeals by Hetherington allowed with costs; appeals by Roche and Carney allowed without costs.

*Oct. 4,5.

OF SHELBURNE QUEEN-S.

'Oct.

EDWARD A. COWIE (PETITIONER)...

.APPELLANT; WILLIAM S. FIELDING (RESPOND- RESPONDENT. .......... . . ..I

APPEAL FROM THE DECISION OF WEATHERBE C.J. RUSSELL J.

Controverted election-Trial of petition-Evidence-Corrupt acts at former election-Agency-Sys ten of corruption. A petition against the return of a member for the House of Commons at general election in contained allegations of corrupt acts by respondent at the election in which were struck out on preliminary objections.

On the trial the petition evidence payments respondents accounts in connection with the former election was offered to prove agency and a system aid was admitted on the first ground. A question as to the amount of one account so paid was objected to and rejected. Held, that such rejection was proper; that the question was not admissible to prove agency for agency was admitted or proved otherwise; nor as proof of a system which could not established evidence an isolated corrupt act.

Held, also, that where evidence is tendered on one ground other grounds cannot set up in a Court of Appeal.

Lafleur K.O. and Drysdale K.O. for the respond- J.-This is an appeal from a ruling or decision of the judges who tried this election petition refusing to allow a question to be put to the respondent Fielding as to the amount of a payment admitted by him to have been made by him to one Farrell, an agent of his, shortly after a previous election which he, Fielding, had run in the same constituency some years before for expenses incurred at such previous election.

This petition was filed to have the election of 1904 declared void for corrupt practices on the part of Fielding's agents, and the successful candidate, Fielding, personally disqualified for corrupt practices. As originally filed, the petition contained many paragraphs charging corrupt practices against Mr. Fielding and his agent at a previous election run by him in the same constituency in 1900.

These paragraphs, however, were subsequently ordered to be struck out of the petitioi by one of the justices of the Supreme Court of Nova Scotia on preliminary objections taken to them, and on an appeal to this court against such order, and also against an order allowing another preliminary objection as to the service of the petition upon the respondent Fielding, the order setting aside the service of the petition was reversed, but no judgment was rendered with respect to the order striking out the paragraphs from the petition, because, as held by this court, it had no jurisdiction under the Controverted Elections Act to hear any appeal on the point, the order appealed from CE not being one which if confirmed "would put an end J. to the petition."

The petition therefor, with the paragraphs relating to the previous election of 1900 eliminated, no appeal having been taken from the order eliminating them to the Supreme Court of Nova Scotia, was subsequently tried before the Chief Justice of Nova Scotia and Mr. Justice Russell.

The election petitioned against was voided by them on the ground of corrupt practices having been committed by respondent's agents, and the personal charges were dismissed for want of any evidence to support them.

The question for our decision is whether the learned judges who tried the petition rejected any material evidence tendered on these latter charges which should have been admitted.

Mr. Fielding was twice examined on oath. First, on an order for discovery before Mr. Justice Meagher, and secondly, on the trial of the petition.

Several times the question was repeated. and the objection was renewed and the ground on which it was tendered repeated with the same ruling by the commissioner.

Before the trial of the petition and after this examination for discovery, the petitioner delivered particulars of these personal charges, alleging substan- Davies J. tially that at the election of 1900 certain persons named and others unknown, acting for and as agents of Mr. Fielding, had been guilty of corrupt practices;

that after Fielding's return he had personally paid to them the moneys they had so expended in corrupt practices, and that such moneys had been so repaid corruptly and with full knowledge of how the money had been expended; that, at the subsequent election of 1904, the same persons acted as Fielding's agents upon the agreement understanding with the respondent

(Fielding) that they should again engage on his behalf in corrupt practices, etc., in pursuance of the system established at the former election and again reimbursed the respondent after the election, and that they did again act and were guilty of corrupt practices at the 1904 election.

At the trial, Mr. Fielding being under examination, Mr. Ritchie, petitioner's counsel, said that the witness on examination for discovery gave evidence that he paid certain bills after the election of and he now proposed to ask the names of the persons who rendered the bills and the amounts and all about them, first, as evidence of system, secondly, as clear evidence of agency.

The Chief Justice stated after consultation with his colleague that evidence would be allowed of transactions at the previous election tending to shew agency between the respondent and the persons against whom evidence has been given at this trial to shew corrupt acts or to have employed persons who did such acts.

Thereupon the examination was proceeded with as SHELBURNE follows:

Q.-Did you receive any bills from Mr. Farrell after the election 1900?

Davies J.

A.-No.

Q.-Did you pay him anything in connection with the election of after the election in connection with the election?

A.-I did.

It was for expenses incurred during the election. Some considerable time, I don't know how long after the election Mr. Farrell informed me there were unpaid expenses of the election campaign and he wanted to know if I would pay them.

I objected and told him no. further consideration I determined I would pay them.

I thought it would shabby if I allowed my friends in the county to pay these. Very reluctantly I agreed to pay the amount he mentioned.

He told me the amount. I said to him at the time I agreed to the doing this thing that I wanted to have a distinct understanding that if

I was to a candidate again for Queen's County I would pay no such bills although they might be strictly legitimate; bills should come to me in time to be paid through my agent, and I told him distinctly that under no circumstances hereafter would I pay such bills.

Q.-Tell me what these expenses were for?

A.-I can't tell you.

Q.-You were not told?

A.-I was not told.

I assumed they were legitimate expenses, I did not inquire into them.

Q.-You did not have any bills actually sent you?

A.-No. Mr. Farrell stated this amount was due and I paid it. I did not ask any questions as to what it was expended for nor whose bills were unpaid.

Q.-Give us the amount of the bills?

Objected to.

Their Lordships decided the amount not go to the proof agency.

The examination is then continued with respect to each and all of the names mentioned in the particulars, and Mr. Fielding answers that from none of them had he any claim made upon him after the election of 1900 for outstanding bills and that he had not paid any one of them anything after such election, nor had he paid any one else than Farrell any such bills. The result of the evidence, therefore, was that Mr. Fielding had not had any bills sent to him after the election of 1900 by or from any person; that Mr. Farrell alone had informed him some months after the election of 1900 there were some unpaid expenses of that election outstanding, had told him the amount, and had asked if he would pay them, and that Mr.

Fielding paid him the amount assuming they were legitimate expenses, but not inquiring into them or asking any questions about them, stating at the time

No other evidence on the point was put in or tendered, and the question for our determination is whether the single question as to the amount paid by

Fielding to Farrell, in 1901 or 1902, for expenses connected with the election of 1900 was properly refused at the trial of the petition to set aside the election of

So far as the question of agency is concerned, its admission or rejection to establish that fact did not matter, because the agency of Farrell was either'admitted or established by proof satisfactory to the court, and the election avoided for a corrupt act or acts of his, as such agent.

Then was the question admissible on the other ground on which it was tendered, as evidence of a system. We are of opinion that it clearly was not. It was a question relating to a single isolated act which happened several years before the election in contest took place, and, even admitting, for the purpose of argument, as Mr. Lovett contended he was entitled to assume, that the amount paid was a large one, such isolated payment, under the circumstances, paid not through the candidate's agent as provided for by the statute, but illegally and improperly by the candidate personally, could not in any way be held to establish Davies J. the existence of such a system as that outlined in the particulars delivered and submitted by Mr. Ritchie as the ground on which he claimed its admission. The whole subject of the admission of evidence of a previous crime or offence against a prisoner or person charged with a subsequent similar crime or offence on the ground that the first one had been committed under circumstances from which a reasonable inference might be derived of the same criminal object, has been lately exhaustively discussed in the case of Rex v. Bond (1), before the Court of Crown Cases Reserved, consisting of Alverstone C.J. and Ridley, Kennedy, Darling, Jelf, Bray and A. T. Lawrence JJ. The head note to the report reads as follows: The prisoner, a medical man, was indicted for feloniously using with intent miscarriage.

At the trial evidence was tendered on behalf of the prosecution to shew that some nine months previous the prisoner had used similar instruments upon another woman with the avowed intention of bringing about her miscarriage, and that he had then used expressions tending to shew that he was in the habit of performing similar operations for the same illegal purpose.

The evidence was admitted, and the prisoner was convicted.

Held, by Kennedy, Darling, Jelf, Bray and T. Lawrence JJ. (Lord Alverstone C.J. and Ridley J. dissenting), that the evidence was rightly admitted, and that the conviction must upheld. Even there, with the evidence shewn that at the time of the commission of the first crime the prisoner had used expressions tending to shew that he was in the habit of performing similar operations for the same illegal purpose K.B. 389.

the Lord Chief Justice and Ridley thought the evidence inadmissible.

All the previous cases are reviewed in the able and elaborate judgments of the different judges, and the conclusion from them seems to us to be irresistible J. that in the present case the bald proof of a single irregular and improper payment by the respondent, made years before the alleged statutory offence being tried, and having reference to another and a different election from the one in controversy at the trial, does not entitle a prosecutor to go into the full facts and details connected with the payment in order to shew the existence of a system, at least unless and until some evidence had been given from which the existence of some such system might be inferred.

Mr. Lovett further contended that, even if the evidence was not receivable on the ground on which it was tendered, still it was admissible as being material to the issues being tried.

During the argument the court, after carefully examining the clauses of the petition to which its attention was especially directed, were unanimously opinion that the evidence was not admissible on the ground of its pertinency to the issues joined. We are of the opinion that if a counsel at the trial of an issue of fact tenders evidence on a specific ground and the evidence is properly rejected on that ground, it is not open to him afterwards before a court of appeal to claim that the evidence should have been admitted on another and different ground never referred to at the trial.

In the result we hold that the sole question disallowed by the trial judges was properly so rejected, and that the appeal should be dismissed with costs, and the necessary certificates forwarded to the speaker.

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