Hawkins v. Smith (Bothwell Election Case)

returning officer had endorsed on each ballot paper the number of the voter on the voters' list. These votes were not included either in the count before the returning officer, the resumminng up of the votes by the learned Judge of the County Court, nor in the recount before the Judge who tried the election petition, Held,-(Affirming the decision of the court below,) that the baliots were properly rejected.

Certain ballot papers were objected to as having been imper. fectly marked with a cross, or having more than one cross, or having an inverted V, or because the cross was not directly opposite the name of the candidate, there being only two names on the ballot paper and a line drawn dividing the paper in the middle.

Held,-(Affirming the ruling of the learned Judge at the trial,) that these ballots were valid.

Per Ritchie, O.J., .Fournier, Henry, and Gwynne, JJ., concurring.: whenever the mark evidences an attempt or intention to make a cross, though the cross may be in some respects imperfect, the ballot should be counted, unless from the peculiarity of the mark made it can be reasonably inferred that there was not an honest design simply to make a cross, but that there was also an intention so to mark the paper that it could be identified, in which case the ballot should be rejected. But if the mark made indicates no design of complying with the law, but on the contrary a clear intent not to mark with a cross as the law directs, as for instance by making a straight line or round 0, then such non-oompliance with the law renders the ballot null. Division I, Sombra-During the progress of the voting, at the request of one of the agents, who thought the ballot papers were not being properly marked, the deputy returning officer, who had been putting his initials and the numbers on the counterfoil not on the ballot papers, initialled and numbered about twelve of the ballot papers, but finding he was wrong, at the close of the poll, he, in good faith and with an anxious desire to do his duty, and in such a way as not to allow any person to see the front of the ballot paper, and with the assent of the agents of both parties, took these ballots out of the box and obliterated the marks he had put upon them.

Held,-(Groynne and Henry, JJ., dissenting,) that the irregularities complained of, not having infringed upon the secrecy of the ballot, and the ballots being unquestionably those given by the deputy returning officer to the voters, these ballots should be held good, and that said irregularities came within the saving oil' BOT~BLLJenkins

Held.-That APPEAL from the judgment of Galt, J., rendered on the 12th January, 1884, declaring that the appellant (J. J. Hawkins,) was not duly elected member of the House of Commons for the electoral district of Bothwell, but that the Honorable David Mills was elected, dismissing the petition against the respondent James Stephens (the returning officer at said election.) with costs to be paid by the petitioners, and giving judgment in favor of the petitioners with costs to be paid by the appellant (J. I Hawkins), other than the costs of the said J. Stephens, which were directed to be paid by the petitioners.

The petition, pleadings, and the facts of the case fully appear in the judgments hereinafter given, and more particularly in the judgment appealed from, which is as follows:

J. :-The petition, briefly stated, charges the returning officer Stephens with having " wilfully, unlawfully, and improperly neglected and refused to include in his addition of the votes the number votes given for each candidate from the statements in the ballot boxes returned by two of the deputy returning officers, and which two statements gave the Hon. David Mills a majority of votes over those given for the said John Joseph Hawkins, the result of which was to give to the respondent Hawkins a majority of votes. "The petition further charges the returning officer with having improperly and unlawfully permitted the deputy returning officers for certain polling sub-divisions after the ballot boxes were opened to amend or put in statements as to the voting at their polling sub.

divisions, and in adding up and determining the number of votes for each candidate, which gave the respondent,

Bawkins, a majority.

That the returning officer declared the said Hawkins elected and declared his intention of making his return to the writ of election accordingly, whereupon proceedings were, within the time in that behalf limited by the 14th sec.

tion of 41 Vic., duly taken to have a final addition or summing up of said votes made by the proper judge in that behalf, and such proceedings were thereupon had before such judge that the number of votes given for each candidate, from the statements contained in the several ballot boxes returned by the deputy returning officers, was re-summed up, and the said judge duly certified to the said returning officer, that upon adding and summing up the votes given at the said election for the respective. candidates, as shewn by the said statements, he found and declared that 1,576 votes were given for the said Mills, and 1,564 for said Hawkins, and that the said Mills was elected for the said electoral district by a majority of 12 votes; that thereupon it became the duty of the said returning officer to declare the said Mills elected, and to make his return to the said writ accordingly; but that he unlawfully and improperly refused to declare the said Mills elected, but made a special return to the writ in which he declared the said Hawkins as having a majority of votes, and setting forth the foregoing certificate of the learned judge, but that he, the returning officer, had been served with no certificate of a re-count of said ballots, nor had the said ballots been re-counted. The petitioners then allege that the said Mills had a majority of the votes, and claim the seat for the said Mills. The petition then charges corrupt practices, etc., etc.

"The answer of the respondent Hawkins may be shortly stated to be that he was duly elected, that his majority had been reduced by the improper conduct certain of the deputy returning officers, that the judge of the county court had improperly refused to recount the ballots, and charging corrupt practices, etc., etc. "The answer of the respondent Stephens sets out the circumstances under which he refused to count the votes given in No. Division of Dawn, and in No. 1 Camden, but as I shall have occasion to refer to these cases at length it is unnecessary to set forth the particulars of the defence, and he denies all improper conduct on his part.

After the case was at issue an order was made for the production of all the ballots and papers, and the whole of the ballots were examined and corrected before me at the trial, so that, except in so far as the returning officer is concerned, the course pursued by the deputy returning officer, in either signing or omitting to sign the different statements of votes, is no consequence.

The result of the counting before me showed a majority in favor of Mr. Mills of 9, the totals being for Mills 1,574, and for Hawkins 1,565.

" There are three sub -divisions at which the statements of votes were in question before me, viz.: No. Dawn, No. Sombra, and No. 1. Camden. The facts as regard No. Dawn are very simple, there was no statement votes either signed or unsigned in the ballot box, and consequently the returning officer very properly refused to include them in his addition of the votes, and, singular to say, when the different parcels were opened each of the votes must have been rejected, the deputy returning officer having endorsed on each ballot paper the number of the voter on the voter's list, so that there could be no difficulty whatever in ascertaining how each elector had voted; fortunately this mistake cannot be said to have had any effect on the result, as the numbers were so close, there being a difference of only five in favor of Mr. Mills. These votes are not included, either in the count before the returning officer, the re-summing up of the votes by the learned judge of the county court, nor in the re-count before myself.

"Division 1, Sombra: The returning officer included the votes in this division in his count so that he has nothing to answer respecting it. When the packages ballots for this division were opened and examined before me it was found that none of the ballot papers were initialled by the deputy returning officer, and Mr. Cameron contended that all these votes should be disallowed.

" The gentleman who had acted as agent for Mr. Hawkins was examined as a witness; he stated that the deputy returning officer had put his initials and the numbers on the counterfoil, not on the ballot paper; this was precisely what was done in the case of Tenkins v. Brecken, reported in the current volume of Supreme Court reports, and on the authority of that case I overruled the objection. The witness, however, stated that he told the deputy returning officer he thought this was wrong, that he put no mark on the ballot; the officer looked over the Act, but found nothing to satisfy his mind-; he did, however, initial and number some of the ballot papers, about twelve, but when at the close of the day he took these ballots out of the box he carefully obliterated the mark he had put upon them. Mr. Cameron then urged that these must necessarily be rejected as the deputy returning officer had no right to interfere in any way with the ballots after they had been placed in the box, and that as it was not known for which of the candidates the votes had been given the whole should be disallowed, and therefore the election should be declared void, as it could not be said that the disallowance of these votes might not change the majority. It is quite plain that whatever the deputy returning officer did, he did in good faith and with an anxious desire to do his duty; no person was allowed to see the front of the ballot papers, and as there can be no reason for supposing they were not the very papers furnished by him and used by the voters, I see no reason why they should now be rejected. I may say I looked at the ballot papers when they were before me, and 1 could see no trace of any mark on any of them. The deputy returning officer was not examined, I presume, because, on the evidence given by the respondents' agent, I had overruled the objection.

The case of division 1, Camden, remains to be considered. This is by far the most important, as it was in conseqence of the returning officer refusing to count these votes, the respondent Hawkins appeared to have a majority and was declared elected by the respondent Stephens. It was represented to me by Meredith, Q.C., who appeared for Mr. Stephens, that that gentleman had been bitterly attacked and all sorts of improper motives imputed to him, and he was desirous of giving his evidence to exonerate himself from all such charges. The evidence on this part of the case (that is to say the re-count of the votes) had been closed when this was said. I told Mr. Meredith I could see no evidence whatever of any improper conduct on the part of the returning officer; he appeared to me to have acted with a desire to do his duty, and that it was quite unnecessary for him to refute charges which, in my opinion, had no foundation; and if he had made a mistake in rejecting the statement in question it was after he had exercised an impartial judgment. When the returning officer on the day appointed proceeded to add up the votes as set forth in the statement enclosed in the ballot boxes, it was found that in several cases the statements were unsigned; the returning officer stated that he did not feel authorized to add in the votes set forth in these statements.

On this being said, several of the deputy returning officers who were present came forward and signed their statements, which were then received and counted by the returning officer. These statements are all in the form under sec. 57. The deputy returning officer for 1 division, Camden, was not present, and he swore that he had been advised to be absent from home on that day: the consequence was that the returning officer refused to accept the statement contained in the ballot box, and virtually disfranchised all the voters in that division. It was proved that the gentleman who had acted as agent for Mr. Mills at this poll, and who had received a certificate from the deputy returning officer, under sec. 58 of 37 Vic. ch. signed by him, produced the certificate to the returning officer and desired him to accept that in lieu of the unsigned statement;

this he refused to do, and, in my opinion, acted properly in so doing, as there is nothing in the Act which authorizes him to act on anything but the statement contained in the ballot box

The simple questions then are: -Should the returning officer have acted on the unsigned statement, and if not, should he have acted on the certificate of the re-summation by the learned judge of the county court ? The answer to these questions are of no consejuence now so far as the election is concerned, as all the ballots have been re-counted, but they are of importance to the returning officer.

" By sec. 10 of 41 Vic., amending sec. 55 of 37 Vic., ch.

" Immediately after the close of the poll the deputy returning officer shall open the ballot box and proceed to count the number of votes given for each candidate.

In doing so he shall reject all ballot papers which have not been supplied by the deputy returning officer, all those by which votes have been given for more candidates than are to be elected, and all those upon which there is any writing or mark by which the vote could be identified.

The other ballot papers being counted and a list kept of the number of votes given to each candidate and of the number of rejected ballot papers, all the ballot papers indicating the votes given for each candidate respectively shall be put into separate envelopes or parcels; and those rejected, those spoiled and those unused shall each be put into a different envelope or parcel, and all those parcels being endorsed so as to indicate their contents shall be put back into the ballot box.

" By sec. 57 of 37 Vic., ch.

The deputy returning officer shall make out a statement of the accepted ballot papers, of the number of votes given to each candidate, of the rejected ballot. papers, of the spoiled and returned ballot papers, and of those unused and returned by him, and he shall make and keep by him a copy of such statement, and enclose in the ballot box the original statement, together with the voter's list, and a certified statement at the foot of each list of the total number of electors who voted on each such list, and such other lists and documents as may have been used at such election. The ballot box shall then be locked and sealed and shall be delivered to the returning officer, or to the election clerk, who shall receive or collect the same. "The deputy returning officer and the poll clerk shall respectively take the oaths in forms Q. and R. to this Act, which shall be annexed to the statement above mentioned."

"The statement found in the ballot box is as follows: 'Statement under sec. 55.

'Election for the electoral district of Bothwell, held on Tuesday, the 20th day of June, 1882.

Votes given for Hawkins,

Votes given for Mills,

Rejected,

Unused,

Spoiled,

'I certify the within statement to be correct.

'Deputy Returning Officer.'" "On this being produced, Mr. Cameron objected that there is no statement under 57, that this is a statement under see. 55, but not signed by the deputy returmung officer, and that there is no affidavit annexed.

No statement is signed under see. 55, what is required by that section is that upon opening the ballot box the deputy returning officer shall proceed to count the number of votes given for each candidate, and to reject certain votes; then the other ballot papers being counted and a list kept of the number of votes given to each candidate and of the other ballot papers, shall each be put into a separate envelope, and all these parcels shall be put back into the ballot box; nothing is said about placing the list in the ballot box. Then comes sec. 56, which has no bearing on this question; and then sec. 57, which requires a statement of the number of votes etc.; and by sec. 59 the returning officer shall ' add together the number of votes given for each candidate from the statements contained in the several ballot boxes returned by the deputy returning officers.' This, therefore, is the only mode by which the returning officer can make his return, as he has no authority to re-count or even inspect the different parcels. I have examined the forms furnished to the deputy returning officer, not only in this division, but also at the other divisions in which the returning officer allowed the statements to be signed.

In all these cases I find forms StPREME COURT OF CANADA.

[VOL. VIII. under sec. 55, and one under sec. 57, so that it appears impossible that a deputy returning officer could with the slightest attention to his duty make a mistake between them. It appears to me there were two under sec. 55 and one under sec. 57.

I have already pointed out that there is no statement required under sec. 55, but these forms are used in giving certificates to the agents of the candidates.

The certificate given to the agent of Mr. Mills was produced; it is exactly the same, the writing the same and the figures the same, as that found in the ballot box, which is unsigned. I was under the impression at the trial, not having had an opportunity of ascertaining the difference between the statements contained in the paper furnished to the deputy returning officer, that the only error was in the deputy returning officer having omitted to sign a proper statement. I find now that I was mistaken. There was no statement prepared under section 57, and moreover, as was urged by Mr. Cameron, there was no affidavit annexed to the unsigned statement.

It is true there was an affidavit in the prescribed form, but it was not annexed to any statement or other paper, and it is specially required by section 57 that it shall be annexed to the statement required by that section, and by which alone the returning officer is to be guided in adding up the votes. .I find, therefore, the returning officer was right when he refused to count the so-called statement in his recapitulation of votes.

" The question that remains is, whether the returning officer was justified in returning Mr. Hawkins after receiving the certificate of the learned judge of the County Court.

By section 14, 41 Vic., ch. 6, 'in case it is made to appear within four days after that on which the returning officer has made the final addition of the votes for the purpose of declaring the candidate elected, on the affidavit of any credible witness, to the County SUPREME COtR'I OF CANAbA.

Judge of any county in which the electoral district, or any part thereof, is situated, that such witness believes that any deputy returning officer at any election in such electoral district in counting the votes has improperly counted or rejected any ballot papers at such election, or that the returning officer has improperly summed up the votes, etc., the said judge shall appoint a time, within four days after the receipt of the said affidavit by him, to re-count the votes, or to make the final addition, as the case may be, and shall give notice in writing to the candidates, or their agents, of the time and place at which he will proceed to re-count the same, or to make such final addition, as the case may be, and shall summon and command the returning officer and his election clerk to attend then and there with the parcels containing the ballots used at the election, which command the returning officer and his election clerk shall obey.'

"It is plain from the foregoing that there are two courses open to a party interested in disputing the return, and these depend on the nature of the objection. The returning officer, having no control over'the ballots, has nothing to do with them or a recount of them, but he is responsible that his addition of the different statements is correct; if therefore the complaint is against the action of the returning officer it must necessarily be for a re-summation.

But if the objection is that the ballots themselves have been mis-counted or improperly counted by the deputy returning officers, then there must be a re-count of the ballots, and the learned judge is, by the 4th sub-section, directed to re-count the votes according to the rules set forth in section 55 of the Dominion Elections Act of 1874.

Within the time limited by the Act, application was made to the learned judge for a re-summation of the statements, not for a recount of the votes, on the ground that the returning officer had improperly refused to count the statements Dawn and 1 Camden; the learned judge thereupon made the following order, addressed to the candidates, the returning officer and the election clerk: "' You are hereby required to take notice that on the application of Matthew Wilson, Esq., solicitor for David Mills, one of the candidates at said election, and on reading the affidavit, etc., have appointed Monday, the twenty-sixth day of June, A.D. 1882, at the hour of eleven, in the forenoon, at my chambers in the town of Chatham, to make the final addition of votes taken at said election on 20th June, 1882, and that at said time and place I will proceed to make such final addition, etc."

" The parties did attend before the learned judge, upon which occasion a protest was delivered by Mr. Atkinson, as counsel for respondent Hawkins, protesting against any alteration being made in the return, unless on a general re-count of the votes. This objection was over-ruled by the learned judge, who made the following order - " Pursuant to an appointment and order made by me on 24th June, 1882, and in the presence of David Mills and John Joseph Hawkins, and of James Stephens, returning officer, and Charles Stephens, election clerk, and after hearing counsel for all parties, and adding and summing up the vote given at said election for the respective can-. didates, as shewn by the statements of the various deputy returning officers, I find and declare that fifteen hundred and seventy-six votes were given at said election for said David Mills, and fifteen hundred and sixty-four votes for said John Joseph Hawkins, and that the said David Mills is elected for said electoral district by a majority of twelve votes. To which I hereby certify, and of all of which I notify you, the said James Stephens, returning officer.'"

"This result was obtained by adding to each of the candidates the number of votes given at No. 1, Camden, there being no mistake in the original summation by the returning officer.

" The returning officer made a special return to the Clerk of the Crown in Chancery, setting out all the facts and concluding: 'I have not been served with any certificate by the Judge of the County Court of the county of Kent of the result of the re-count of votes made by him, as provided by sub-section four of section sixty-seven of said act, nor with any other certificate or document other than the paper marked B, hereto annexed.-(already set out.)

"' Having received no certificate of a re-count of ballots, or of a result of a re-count of the votes at said election, as provided in sub-section four of section sixty-seven of said Act, I have deemed it my duty under the circumstances set out in this, my report, to allow the declaration made by me to stand, and make the return accompanying this report, and which return is so made upon the grounds and for the reasons mentioned in this my report.' "

" For the reasons already given, I consider that on an application for a resummation only, the learned judge has nothing to do with the deputy returning officer; his duty is simply to reconsider the addition of the different statements as made by the returning officer. In the present case the recapitulation of votes made by that officer stated that there was no statement signed by the deputy returning officer at division 1, Camden, and therefore the learned judge should have taken some steps to ascertain the number of votes given at that division before altering the recapitulation of the returning officer; and this could only have been done by a re-count of the ballots, as there was no statement with an affidavit annexed, nor in truth any statement under section 57 of the statute; and he should have certified the result to the returning officeer,

This was not done, and I therefore think the latter was not bound, nor would he have been justified in altering his return. It is to be observed the returning officer, in his return to the clerk of the crown in chancery, set forth fully all the circumstances of the case, and it does appear to me that so far as his conduct in adhering to his original return is concerned it was quite unnecessary to make him a party to the present petition, as an application might have been made to the court to amend the return. " There were a number of charges of corrupt practices by the respondent Hawkins, but as I had declared that I found Mr. Mills had a majority of votes, they were not proceeded with. The respondent Bawkins then proceeded to call witnesses in support of charges of corrupt practices against Mills by himself and his agents. A number of witnesses were examined, but I find that none of the charges were proved.

"I give judgment declaring that John Joseph Hawkins was not duly elected, but that the Honorable David Mills was duly elected.

" I dismiss the petition against James Stephens, with costs to be paid by the petitioners.

" I give judgment in favour of the petitioners, with costs to be paid by the respondent, John Joseph Hawkins, other than the costs of the said James Stephens, which are to be paid by the petitioners.

"Thomas Galt." 12th Jan., 1884.

From this judgment, the respondent in the court below (Hawkins) appealed to the Supreme Court of Canada, limiting his appeal in his notice of appeal as follows:

" And further take notice that the said respondent, Hawkins, limits his said appeal to the following questions, viz., the learned judge should not have held the Hon. David Mills entitled to the seat, but should have held the respondent, Hawkins, entitled to retain his seat, or should have ordered a new election upon the grounds:

Hawkins, which were properly marked and should have been counted for him.

. " 2. The learned judge should have refused to count any of the ballots cast in polling division number one for the township of Sombra, said ballots not appearing to be initialled by the deputy returning officer, and no evidence having been given at the trial to identify them as the ballots supplied by the deputy returning officer.

" 3. The learned judge should have disallowed as many of the ballots cast at number one polling division in the township of Sombra, as appear by the evidence to have been initialled and numbered by the deputy returning officer, and such initialling and numbering to have been after the close of the poll obliterated by the deputy returning officer.

" 4. The learned judge should have refused to count any ballots for polling division number one for the township of Camden, there being no proper statement or verification of the ballots cast, or of the result of the poll at said polling division.

"5. The learned judge should not have declared Hon.

David Mills entitled to the seat in consequence of it appearing upon the scrutiny of the ballots at polling division number three for the township of Dawn were marked as to enable the voters to be identified. The learned judge should have held charges number two, twenty-one and twenty-three in the schedule to the objections of the respondent, Hawkins, filed, to have been proved, and should have held that David Mills was incompetent to take his seat, on the ground that the evidence upon said charges showed corrupt practices committed by the agents of said Mills, and that one vote should have been struck off from the number of votes cast for said Mills for each of the persons referred to in said charges, or proved by the evidence thereunder to have been guilty of corrupt practices and the learned judge should have admitted further evidence of agency in respect of said charges and such evidence should now be admitted.

The learned judge should have allowed the respondent, Hawkins, to give evidence upon the additional charges of corrupt practices set forth in the schedule put in at the trial, and evidence upon said charges should now be admitted.

Dated this 26th day of January, 1884."

The principal question upon which the appeal in this case was decided, was as to the validity of the votes in Division No. 1, Sombra. The rulings of the learned judge at the trial as to the ballots in the other divisions, which were objected to as being imperfectly marked, were affirmed.

Upon a scrutiny of the ballots at the trial it appeared that none of the ballots cast at polling division number one for the township of Sombra contained the initials of the deputy returning officer for that polling division, and no evidence was given to show that the ballot papers were those supplied by the deputy returning officer.

These ballots ought to have been rejected by the deputy returning officer under the provisions of sec. 55 of the Dominion Elections Act, 1874, inasmuch as primd facie they are not the ballot papers supplied by the deputy returning officer and there is no evidence contra, and if these ballots are held good and counted the secrecy of the ballot might in any polling place be evaded and the evident intent of the Act frustrated.

Sec. 80, Dominion Elections Act, does not remove the difficulty inasmuch as it cannot be said that the election at this particular polling place was conducted in accordance with the principles laid down in the Act.

These ballots, to the number of ten or twelve, were, before being deposited in the ballot box, initialled and numbered by the deputy returning officer of that polling division, and after the close of the poll, when the ballots were being counted, the deputy returning officer improperly obliterated said numbers and initials, and it was his duty, under the provisions of sec. 55 of the Dominion

Elections Act, 1874, to have rejected these ballots on account of their having upon them a writing or mark by which the voter could be identified.

Under these circumstances the petitioners cannot show that the said Mills has a majority of legal votes.

The ballots cast at number one polling division for the township of Sombra are illegal votes, or at least ten or twelve of these votes were improperly counted, and if so, the court cannot say which candidate has a majority of legal votes; therefore the election should be declared void. The case of lenkins v. Brecken relied on by the petitioners, is clearly distinguishable.

The irregularities in regard to the voting at number one polling division for the township of Sombra, and at- number three polling division for the township of

Dawn, resulted practically in open voting, and does not

come within the saving provisions of sec. 80, Dominion Elections Act 1874, and there should be a new election. I submit farther on behalf of the appellant that corrapt practices have been proved to have been committed on behalf of the Hon. David Mills, sufficient to entitle the appellant to have such a number of votes struck off from the votes polled for the said Mills, as to disentitle the said Mills to the seat and to leave the appellant with a majority of legal votes, and that corrupt practices have been shown to have been committed by agents of the said Mills, by reason whereof the said Mills is disentitled to the seat, under the provisions of the Dominion Elections Act, 1874.

[The learned counsel then reviewed the evidence this part of the case.]

The learned judge at the trial erred in refusing to permit the appellant to enter upon evideice in respect to the various corrupt practices set out in the supplementary list put in at the trial, inasmuch as no order had been made limiting any time within which the appellant should give particulars of the charges of corrupt practices upon which he intended to rely, and inasmuch as there is no provision, for obtaining such particulars from the appellant. It is submitted, therefore, that the appellant should have been allowed as a matter of right to enter upon such evidence and that at any rate, as a matter of discretion, such particulars should have been allowed at the trial, and that the appellant should now be allowed an opportunity of giving evidence thereunder.

(Rule VIII., under Dominion Elections Act, 1874.)

Upon the authority of the case of Jenkins v. Brecken in this court, it is not competent for Mr. Hawkins to affirm the validity of the election by taking his seat thereunder and claiming still to hold it, and at the same time to disaffirm the election and seek to have it avoided BoWt because of alleged irregularities by those who conducted it.

It is contended that the ballots at No. 1 Sombra should' all be rejected because not initialled by the deputy returning officer:

The case of Jenkins v. Brecken settles this question, and such ballots should be counted. Then as no objection was raised to such ballots before the deputy returning officer, the appellant cannot now raise such objection under see. 66 of the Dominion Elections Act, 1874.

Though the ballots cast at No. 1 Sombra appeared to have by the evidence borne initials and numbers.which were afterwards rubbed off, yet there are no means now of ascertaining for whom such ballots were cast, and as the appellant has not filed a petition or otherwise attacked the election on this ground he cannot now claim that it is void because of the irregularity.

secrecy of the ballots was preserved, and no objection was taken at the close of the poll.

The irregularities complained of are such as are covered by section 80 of the Act.

Then, as to the corrupt charges against Mr. Mills none of them were proven, and the judge came to a proper conclusion with respect to them. Even if any such practice had been committed the person guilty thereof was not an agent of Mr. Mills, and the evidence to prove the agency was not properly tendered.

It was in the discretion of the judge at the trial when to allow evidence as to additional charges.

RITCHIE, 0...:

This is an appeal from a decision of Mr. Justice Galt unseating the sitting member and declaring that Mr. Mills was duly elected as member for the House of Commons for the electoral district of Bothwell.

Objections were taken before us with reference to in- LLdividual ballots which have imperfect crosses or marks on them. During the argument we sustained the rulings of the learned judge as to these, with the exception of some which were retained for further consideration, but, however decided, they cannot have any effect on the result of this case.

After a good deal of consideration, I find it impossible to lay down a hard and fast rule by which it can be determined whether a mark is a good bad cross. I think that whenever the mark evidences an attempt or intention to make a cross, though the cross may be in some respects imperfect, it should be counted, unless, from the peculiarity of the mark made, it can be reasonably inferred that there was not an honest design simply to make a cross, but there was also an intention so to mark the paper that it could be identified, in which case the ballot should, in my opinion, be rejected. But, if the mark made indicates no design of complying with the law, but, on the contrary, a clear intent not to mark with a cross as the law directs, as for instance, by making a straight line or a round 0, then such noncompliance with the law, in my opinion, renders the ballot null. The irresistible presumption from such a plain and wilful departure from the terms of the statute being that it was so marked for a sinister purpose. I am aware that in coming to this conclusion I am differing from the decision in the case of Woodward v. Sarsons but I cannot bring my mind to the conclusion that a ballot should be refused when there is evidence of an honest attempt to make a cross. One ballot objected to which was marked, as may familiarly be said, by an inverted V, thus A.

I think this good as showing an intention to make a cross and no indication of an intent at identification.

There are also two ballots upon which are to be found more M00 crosses than one.

If the principle I have just referred to is a correct one, then these ballots should be received. However, as there are two ballots on the other side marked in the same way, it would make no difference in the conclusion if we ruled otherwise.

In poll No. 4, Chatham, there was a ballot good on its face found in the spoiled ballot envelope, and not among the rejected ballot papers.

This ballot could not either affect the election.

There was nothing on the ballot to show that it could have been rejected on the ground alleged, viz :

because it was marked for both parties.

Now, I have looked at it, and I cannot discover the slightest mark of any kind whatever on the ballot, except the x opposite the name of Mills. The returning officer swears " none rejected." No hypothesis has been put forward which could justify the ballot being rejected except that it is alleged it was treated as marked for both candidates. My own eye sight tells me that there is on this ballot nothing whatever to justify this allegation, on the other hand there is, in my opinion, a very reasonable hypothesis that the voter may have wrongly marked the ballot, and discovering his mistake returned it to the officer as spoiled and got another in its place.

The returns of the officers show that 139 voted at this polling place, and 139 were counted without the two, of which this is one, alleged to have been spoiled, which is conclusive that this could not have been a rejected ballot.

Then there are the statements given by the deputy returning officer under sees. 55 and 57, in which it appears that the accepted ballot papers were 139 in number, and then the sworn statement that " one hundred and thirty-nine votes were polled in polling district No. 4, Chatham. In my opinion, therefore, the judge was right in treating this ballot as a spoiled ballot and not a rejected ballot.

Then really the only point in this case which could affect the election is the one raised in reference to No. 1 Sombra. I entirely agree with the learned judge that the case of No. 1 Sombra is directly within the principle of the case of Jenkins, v Brecken

The learned judge thus summarizes the evidence as to No. 1 Sombra. [The learned Chief Justice then read from the judgment of Galt, J., (2).]

The agent of Mr. Hawkins and the deputy returning officer appear to have been equally at fault, as to the strictly correct course to be pursued, and both appear to have been acting in good faith and desirous of doing what was legal and right. The opinion of the deputy returning officer, influenced no doubt by what Mr. Hawkins's agent said, changed his mode of procedure, which was exactly that pursued in the- Brecken case, and initialled and numbered about 12 of the ballot papers when he seems to have thought he was in error in changing the course he at first adopted, and returned to his original mode of procedure; but does not meddle with the ballots so irregularly initialled.

On the close of the poll, however, having evidently, from changing his. mode of numbering and initialling, and reverting to his original practice, become satisfied that the course he had adopted was not regular and proper, he obviously endeavored, in the presence of the agents of the parties, to remedy the irregularities; and so when the poll was closed and the ballot box opened, as the learned judge expressed it: " The returning officer in good faith and with an anxious desire to do his duty," endeavored to remedy the wrong he had committed by carefully and effectually obliterating the marks he had put on these ballots so completely, the learned judge says, "that he could see no trace of any mark on any of them."

He also says that no person was allowed IUbi supra to see the front of the ballot papers, (and which I think is the fair inference from the evidence,) whereby the secrecy of the ballots was preserved and the identity of the ballots, as furnished by him and used by the voters, clearly established, because they must have been the very papers furnished by him and used by the voters, otherwise they could not have had the numbers and initials of the deputy returning officer on those which he obliterated, and all this in the presence the agents of both parties without the slightest objection on their part,,but, on the contrary, the fair inference is, with their implied, if not expressed, assent and concurrence.

And this is the fair inference from the evidence of Dawson, the respondents' agent, and I may say if they had been seen by the deputy returning officer, I should doubt whether even this would affect the question, because the secrecy in such a case would be as much preserved by the oath of the deputy returning officer as in the case of ballots he marks for illiterate It seems to me that this in' no way differs from the principle acted on in Jenkins v. Brecken, but is a much stronger case for the application of that principle. The only difference being the rectification of the error or irregularity by the officer at the close of the poll. The appellant's contention is, that this rectification made a ballot bad in the box good out of the box, but this, though on the surface plausible, is, in my opinion, by no means a legitimate or accurate way of stating the case; if literally so, it is no more nor less in effect than was done in the Brecken case.

In what respect does the present case differ substantially from that of an officer inadvertently marking a ballot and giving it to a voter and before being used he discovers that he has improperly marked it, and then and there effectually expunges the mark and hands it to the voter?

In such a case he immediately, before any harm is done, corrects his error. In the present case the officer, in the fair and legitimate discharge of his duty, innocently, but irregu- larly, marks a ballot; discovering his error at the very first moment it could be done, in the presence of the agents of the parties, he proceeds to undo what he had improperly done, and he accomplishes this in such a manner that the secrecy of the ballot is preserved, and also in such an effectual way that there is no possibility that any party could be injured thereby, and this, too, in the presence and without the slightest objection or protest on the part of the agents of the candidates. Under such circumstances I can discover no difference practically between the case of correcting the error before or after the polling, the effect being precisely the same in both cases. I am therefore by no means prepared to hold that, in the case of an accidental and innocent irregularity, honestly and bond /ide rectified on the spot before any injury has or can have resulted either to the candidates, the voters, or to the public, such rectification can be ignored and the irregularity relied on as invalidating the election.

At the same time I am free to say I think the actions of the deputy returning officers should be always watched and subjected to rigid scrutiny.

But assuming this to be an irregularity and the rectification of it equally irregular, if ever there was a case to which section 80 of the Dominion Statute is applicable it seems to me this is peculiarly that case. That section is as follows:- Now, as regards these votes,.it cannot be doubted the election was conducted in accordance with the principles laid down in the act, and I think it equally clear that any non-compliance with the rules contained in the act, as to the taking of the poll or the counting of the votes, did not affect the result of the election. The secrecy of the ballot was not infringed, the ballots are unquestionably those given by the deputy returning officer to the voters, the voters have freely marked them for the parties for whom they desired to vote, the candidates have got the benefit of the votes marked for them, the public have had the benefit of the votes so cast so far as they affect the return of one or other of the candidates.

On what principle, then, or with what object, should the election be set aside? The only reason alleged, as I understand the contention, is that as the ballots alleged to have been marked were bad ballots when put in the box and cannot now be identified, and so picked out, it cannot be told for whom the parties using them voted, and therefore all the votes polled at that polling place should be excluded from the count. But this contention answers itself, and so far from establishing the invalidity of the election furnishes, in my opinion, an overwhelming reason why the validity of the election under sec. 80 should, so far as this polling place is concerned, be sustained; this construction, while it strictly preserves the principles on which it is provided the election shall be conducted, prevents to a large extent the election from being jeopardized or defeated by the default or innocent action of the returning officers, which evidently was the intention of the legislature in enacting section 80.

Therefore, with regard to these votes also, I concur with the learned judge, who tried this case, that they should be held good.

There were some charges of corrupt practices by reason whereof the appellant claims that Mr. Mills is disentitled to the seat.

One is the Mowat-Gordon case; the second, the Bachard case, and the 3rd, the Craig case. These the learned judge who tried the case thought had not been sustained as there was not any proof of agency.

I have carefully read the reasons given by the learned judge and looked at the evidence, and I am not prepared to say that he has arrived at a wrong conclusion in any of these cases, even if -he was wrong in concluding that the loan of five dollars by Gordon to Mowat was not a bribe (a rather doubtful case) as there is clearly no evidence to show that Gordon was the agent of Mills, the most that could be done would be to strike off that vote and that would not affect the election.

There is one point which, it is alleged, was not dealt with by the learned judge, but is now relied on by Mr. Cameron, though not included in the notice of appeal, viz., the right to tender evidence of agency in the case of Craig, I think the counsel has not placed himself in a position in the lower court to claim that privilege on appeal.

As to another point, viz., the refusal to allow charges to be added, the' learned judge exercised his discretion, which he had a perfect right to do.

For these reasons, I am opinion, that the appeal should be dismissed with costs.

J.:- While agreeing that the ballots in this case were sufficiently marked, I am not prepared to lay down any general rule as to what is or is not to be deemed a sufficient marking, or whether a cross or an attempt to make a cross is indispensable.

I desire also to add that by assenting to the grounds upon which the judgment proceeds, I do not mean to preclude myself from the right to consider in any future case in which the question may arise, whether any mark strong, J. put on a ballot by mistake and in. good faith by a deputy returning officer is to be held a ground for rejecting the ballot. Subject to these observations, I concur with the Chief Justice.

Par leur p6tition les Intim6s ont r6clam6 pour l'bonorable David Mills, le sibge de la division 6lectorale de Bothwell A la Chambre des Communes, actuellement occup6 par I'Appelant.

Celui-ci a r6pondu qu'il avait t6 duement 61u pour la dite division, mais n'a pas produit de contre-p6tition attaquant la validit6 de la dite 6lection.

Cependant, comme il en avait le droit en vertu de la sec. 66 de l'acte d'61ection de 1874, il a all6gu6 des actes de corruption commis par l'Intim6 et ses agents, suffisants s'ils sont prouv6s, pour empicher son adversaire d'6tre d6clar6 duement ala.

L'honorable juge Gall, qui a proc6d6 au procas de cette p6tition, a d6clar6 que M. Mills avait obtenu une majorit6 de neuf votes sur son concurrent et d~clar6 qu'il avait droit au sidge de la dite division.

Il a en m~me temps renvoy les accusations de men6es corruptrices.

C'est de ce jugement qu'il y a appel A cette cour.

L'Appelant ayant, en vertu de la sec. 48 de 1'acte de

Cour Supreme r6glant 1'appel i cette Cour en matibre, d'61ections,-donn6 avis qu'il limitait son appel A certaines questions 6num6r6es dans son avis, la Cour est en cons6quence appelbe a ne se prononcer que sur les questions suivantes :- 1. Les bulletins trouv6s dans la boite de scrutin du

709- [VOL. VIl. poll no 1 du township Sombra ne portant pas les initiales du d6put6 officier rapporteur devaient-ils stre ELCTIN rejet6s pour cette raison ?

e J

Dans 1'examen des bulletins nous en avons trouv6 un certain nombre marqu6s d'une manibre qui n'est pas strictement conforme A la loi qui exige que le voteur fasse une croix dans la division du bulletin oii se trouve le nom du candidat pour lequel it entend voter. Pour les personnes habitudes A l'usage de la plume, le signe d'une croix est trbs facile A faire ; mais il n'en est pas de mime pour les personnes illettr~es. On sait par une exp6rience de tous les jours quelle difficult6 6prouve la plupart de ces personnes a se servir de la plume, lorsqu'elles sont appel6es dans les affaires ordinaires, A faire leur marque d'une croix comme attestation de leur VOL. VIfI.] SUPM COURT OF CAADA.

signature.

O'est tellement le cas que la plupart du temps, celui qui 6crit leurs noms au bas d'un docuinent, est le plus souvent oblig6 de tenir et m~me de diriger la plume que ces personnes se contentent de Fourir, 3. toucher pour accomplir la formalit6 voulue.

Aussi, n'est-il pas 6trange de voir sur les bulletins beaucoup de croix tris irr6gulibrement faites. S'il fallait rejeter tous les bulletins ne portant pas une croix semblable aufac simile donn6 par la loi, un grand nombre de voteurs se trouverait de cette manidre priv6 de l'exercice de leur droit de franchise.

Mlais la loi doit-elle tre interpr6t6e aussi strictement ? Son but 6tant d'assurer le secret du vote, ne doit-on pas consid6rer au contraire comme valides les bulletins faisant voir A leur face une tentative faite de bonne foi pour faire une croix ainsi que la loi le veut ?

Parmi les bulletins que nous avons examinbs, il s'en est trouv6 oil la tentative du voteur A faire une croix se rapprochait plut~t de la forme d'un V que de celle d'une croix; quelques-uns ont mis deux croix; d'autres y ont fait une seule ligne soit perpendiculaire, soit horizontale. La premibre chose A faire avant de d6cider de la validit6 du bulletin 6tait sans doute d'adopter une r~gle uniforme d'aprs laquelle ils seraient tous admis on rejet6s.

Nous avons d6ji pour nous guider dans cette op6ration les principes 6nonc6s dans la cause de Woodward vs Sarsons oil les mames difficulths au sujet de la marque des bulletins ont 6t0 soulev6es et dans laquelle la cour (0. P.) a adopt6 les rbgles suivantes qui sont d'une application 6vidente i la pr6sente cause. (2)

intitled it at

P.

to it 1)-one star centre-Held Les rbgles ci-dessus 6nonc6es ont 6t6 consid~rbes comme contenant une saine doctrine et en partie adopties par les juges. Dans le cours de la discussion de cette cause 1'honorable juge en chef ayant soumis A 1'examen de ses colligues une rbgle formul6e de manibre A couvrir A peu prbs toutes les difficult6s qui peuvent tre soulev6es A propos de la marque des bulletins, tons les membres de la Cour y ont donn6 leur adh6sion.

Cette r~gle n'est toutefois pas susceptible d'une application aussi g6n6rale que celle 6nonc6e dans la cause de Woodward et Sarsons, car on ne pourrait pas l'invoquer pour valider un bulletin, comme dans les cas ci-dessus cit6s, ne portant par exemple qu'une seule ligne perpendiculaire ou horizontale.

Dans ce cas suivant notre ragle on ne peut pas consid6rer qu'il y a eu de bonne foi une tentative de faire une croix, et les bulletins marqu6s de cette manibre seraient rejetbs. Je n'ai pas besoin de r6p6ter ici la forn ule de cette r~gle que 1'honorable juge en chef a d6jA lue tout au long dans ses notes sur cette cause.

L'examen des bulletins ayant t6 fait d'aprbs les rbgles ci-dessus 6nonc6es, le r6sultat devant cette Cour a 6t le m6me que devant I'honorable juge Galt, donnant une majorit;6 de neuf voix A M. Mills.

La question soulev6e au sujet des votes au poll no 1, Sombra, dont la nullit6 est demand6e par 1'appelant, parce que les bulletins ne portaient pas les initiales du d6put6 officier-rapporteur est d6jA venu devant cette Cour dans la cause de Jenkins et Brecken (1).

F Sur ce point la d6cision de la Cour est r6sum6 commeFournier, J. suit :

L'appelant pr6tend que cette d6cision ne saurait s'appliquer A la pr6sente cause, parce que la preuve faite dans celle-ci est insuffisante pour identifier les bulletins.

Cependant dans l'une comme dans l'autre, les initiales ont 6t6 mises sur la marge au lieu d'Atre sur le dos du bulletin. Le voteur muni d'un semblable bulletin le rapportait au d6put6 officier-rapporteur qui avait toute la facilit6 possible de s'assurer que c'6tait bien le bulletin qu'il avait donn6, en enlevant la marge por.

tant ses initiales, avant de mettre le bulletin dans la boite du scrutin. Il acqu6rait par l une connaissance positive que le bulletin d6pos6 6tait bien celui qu'il avait fourni. est vrai qu'il a manqu6 dans cette cause une preuve qui a 6t6 faite dans colle de Jenkins. Le d6put6 officier-rapporteur et le clere du poll n'ont pas

6t6 entendus comme t6moins pour confirmer par leurs t6moignages le fait de 1'identit6 des bulletins. La raison de cette omission est que 'un de ces officiers 6tait mort, (le d6put6 officier-rapporteur) et 1'autre absent aux Etats-Unis, lorsque la preuve a faite. J. P.

Dawson, 'un des agents de l'Appelant 6tait pr6sent A

1'ouverture de la boite du scrutin et A l'exception de quelques minutes il avait 6t6 present au poll toute la journ6e.

I a vu le d6put6 officier-rapporteur prendre les bulletins de la boite, les compter et les lui montrer E "sI" ainsi qu'aux autres agents qui 6taient pr6sents. vu aucune irr6gularit dans la manibre de con. duire 1'61ection A ce poll, si ce n'est colle qui forme le sujet de la deuxibme question.

Cette irr6gularit6 consiste dans le fait que dix ou douze bulletins sur le dos desquels se trouvaient les initiales du d6put6 officier-rapporteur et le no qui se trouve vis-A-vis le nom du voteur sur la liste 6lectorale ont 6t donn6s A autant de voteurs qui les ont remis au d6put6. Celui-ci les a d6pos6s ainsi marqu6s dans la boite du scrutin. La chose s'est pass6e de la manibre suivante : Dawson, 'un des agents de l'Appelant, rapporte que le d6put6 officier-rapporteur ayant mis ses initiales sur la marge des bulletins et qu'il ne les avait pas mises sur le bulletin m~me, lui en fit la remarque en lui disant que ce n'6tait pas suivant la loi,-sans toutefois lui dire comment il devait faire.

Aprbs cette observation le d6put6 officier rapporteur mit ses initiales et les nos. sur dix ou douze bulletins. Ayant ensuite examin6 la loi et n'y trouvant pas la solution qu'il cherchait, il revint A sa premibre manibre de ne mettre ses initiales que sur la marge sans aucune marque sur le bulletin.

Lorsque le d6put6 officier-rapporteur, A la cl6ture du poll, sortit les bulletins de la boite au scrutin, il les montra un par un A chacun des agents des candidats. Lorsqu'il arriva aux bulletins portant les num6ros et ses initiales, il les effa9a avecun morceau de caoutchonc, et les compta ; il n'en fut pas compt6 d'autres que ceux qu'il avait sortis de la boite. Il d~clare aussi n'avoir pas vu d'autre irr6gularit6 dans la manibre de conduire 1'61ection A ce poll que celle qui a eu lieu par rapport i ces 10 ou 12 bulletins marqu6s comme susdit I1 dit aussi que personne n'a pu voir comment avait vot6 ceux qui avaient d6pos6 des bulletins marqu6s, parce que les marques en furent effaces avant qu'ils no fus. sent compt6s et si bien effac6s que 1'honorable juge BOTELL Gait n'a pa voir la moindre trace de ces marques. Quant A l'identit6 de ces bulletins, elle est certaine, Fournier, J. puisqu'ils out pu Atre reconnus par les num6ros et les initiales comme 6tant ceux fournis par le d6put6 officierrapporteur.

La preuve 6tablit aussi positivement que le secret du vote n'a pas. 6t6 viol6 par ces irr~gularitbs.

On pout encore fortifier la preuve faite de l'identit6 de tous les bulletins, tant de ceux qui ne portaient pas originairement d'initiales que de ceux sur lesquels les initiales et les num6ros qui y avaient t mis out ensuite 6t6 effac6s, par le serment solennel que le d6put6 officier-rapportour A ce poll a prt6 pour constater la r6gularit6 de ces proc6d6s. Entre autres choses it d6clare qu'il a tenu le poll correctement, constate le nombre de votes donn6s A chaque candidat, A son poll, et d6pose de plus:

it true the at taken thereat that be,-to

Si la preuve en cette cause n'est pas aussi forte que celle faite dans la cause de Jenkins, elle est toutefois suffisante pour nous convaincre que les bulletins d6pos6s au poll no 1, Sombra, malgr6 les irr~gularit~s auxquelles il a t6 fait allusion ci-dessus, sont certainement les mirnes que ceux qui out 6t6 fournis par le d6put6 officier-rapporteur, et qu'il a compt6s A l'ouverture de la boite du scrutin dans laquelle il les avait dpos6s.

Maintenant ces irr6gularit6s ayant t6 commises de bonne foi, sans aucune intention quelconque d'61uder les dispositions de la loi, n'est-ce pas le cas de faire application du principe admis par cette cour dans la J cause Jenkins vs. Brecken au sujet du d6faut d'initiales sur les bulletins, taut A ceux qui n'ont jamais eu d'initiales qu'A ceux sur lesquels aprbs avoir t6 mises, elles ont 6t6 effac6es n'est peut-6tre pas sans danger d'admettre qu'un d6put6 officier-rapporteur ait pu changer l'6tat d'un bulletin; mais si la chose n'est jamais faite autrement qu'elle l'a t6 dans la pr6sente cause, c'est-A-dire de la meilleure foi du monde, dans l'unique but de r6parer imm~diatement et avant qu'aucun tort n'en ffit r6sult6, et du consentement de tous les agents des candidats, une erreur qui, si elle n'efit pas 6t6 r6par6e alors, auraient pu avoir de graves cons6quences ;-il est bien certain qu'il ne saurait jamais r6sulter d'inconv6nients d'un tel proc6d6 fait dans les circonstances ox l'a t celui dont il s'agit. Il en serait tout autrement, s'il y avait la moindre preuve que le d6put6 officier-rapporteur en agissant ainsi avait la plus 16gbre id6e que ce changement pouvait profiter plut6t A l'un qu'd l'autre des deux candidats, je n'h6siterais pas alors A mettre de c t toute la votation faite A ce poll. Je suis en cons6quence d'avis que la d6cision de l'honorable juge Galt sur les deux questions concernant les irr6gularit6s qui ont en lieu au poll no 1, Sombra, tant conforme A celle de Jenkins vs. Brecken et au principe de sec. 80 de l'acte des 6lections de 1874, doit ttre confirm~e. La troisibme irr6gularit6 dont se plaint I'appelant est fond6e sur ce que l'6tat du poll trouv6 dans la boite du scrutin au poll no 1 Camden ne portait pas la signature du d6put6 officier rapporteur.

Cette question a eu une grande importance dans cette cause; car l'officierrapporteur se fondant sur cette irr6gularit6 n'a pas compt6 les votes donn6s ; ce poll, ce qui a eu 1'effet de donner une majorit6 apparente h 1'appelant qu'il a d6clar6 61u.

L'officier-raporteur mis en cause pour r6pondre de sa conduite A cet 6gard, a 6t6 reconnu par Forier, J. 1'honorable juge justifiable d'en avoir agi ainsi. Comme il n'y a point d'appel de cette partie de cette d6cision, il ne reste qu'd savoir si malgr6 cette omission de la signature, suffisante pour excuser l'officier-rapporteur, les votes enregistrs A ce poll ne devaient pas tre compt6s.

Dans un d6compte de la votation ordonn6 par le juge du comt6 A la demande de 1'intim6 les votes omis a ce poll farent compt6s et l'6tat de la votation d6clar6 comme 6tant de 1576 pour 1'intim6 et 1664 pour l'appelant. Toutefois l'ordre du juge n'ayant pas 6t communiqu6 A l'officier-rapporteur, celui-ci fit son rapport conform6ment A la d6termination qu'il avait prise de ne pas accepter I'6tat non sign6 qui est dans la forme suivante:

the June,

Si, comme l'a d6clar6 l'honorable juge Gait, les pouvoirs de l'officier-rapporteur, ne lui permettent pas d'examiner les bulletins pour v6rifier- cet 6tat il n'en est pas de m~me du juge appelM A faire un d~compte de la votation.

Sans entrer dans la consid6ration des devoirs respectifs de ces deux officiers, il est indubitable que sur la contestation de 1'61ection, le juge, qui a pr~sid6 au procks de cette p6tition avait droit de so servir nonseulement des documents trouv6s dans la boite du

BI

!ME OOURT OF CANADA.

[VOL. VIII. scrutin, mais d'autres preuves secondaires qui auraient pu li Atre fournies, pour arriver au v6ritable chiffre de la votation. Sa juridiction est complte A cet 6gard. L'examen des bulletins devant la Cour en premibre instance et ici ayant constat6 le v6ritable de la votation, la question d'irr6gularit6 du certificat est ici sans importance, car il est 6vident qu'elle n'a nullement affect6 le r6sultat de la votation.

La quatri6me question est au sujet du poll no 3 de Dawn. tous les bulletins ont 6 num6rot6s et rejet6s pour cette raison, L'appelant ne s'en plaint pas pas, mais il s'appuie sur ce fait et sur celai des dix bulletins du nO 1 Sombra, sur lesquels les nos. et les initiales out 6t6 effaces, pour demander la nullit6 de 1'61ection pr6tendant que ces faits 6taient denature A affecter le r6sultat de 1'61ection.

Malheureusement il ne peut 6tablir cette cons6quence,-car il est absolument impossible de connaitre pour qui out te donn6s les dix ou 12 votes du poll no 1 de Sombra-et quant A ceux de Dawn, leur rejet n'est 6videmment pas A son d6triment, mais A celui de son adversaire qui avait une majorit6 de cinq votes sur lui, dans ce poll.

L'appelant peut-il aprbs avoir maintenu la validit6 de 1'61ection et occup6 son sidge en Chambre, en demander maintenant la nullit6, sans avoir pr6sent6 de p6tition A cet effet et sans s'8tre conform6 A toutes les formalit6s voulues par la loi pour 4tre admis A demander la nullit6 d'une election ? Cette question n'est pas nouvelle ; elle s'est pr6sent6e plusieurs fois d6jA devant les tribunaux et notamment devant cette Cour dans la cause de Jenkins et Brecken, et dans celles de Sommerville et Laflamme (1) ofa elle a t jug6e en sens contraire aux pr6tentions de l'appelant.

D'ailleurs avant de declarer nulle une 6lection pour cause d'irr6gularit6, les tribunaux exigent d'aprbs 'aulit torit6 suivante Woodward v. Sarsons (1) une preuve que l'appelant n'a pas faite great Les moyens de nullit6 fond6s sur les irr6gularit6s mentionn6es plus haut sout 6videmment insuffisants d'apres cette autorit6 et doivent stre rejetes.

Il ne reste plus que les accusations de men6es corruptrices pratiqu6es par l'Intim6 on ses agents. Aprbs avoir lu avec soin la preuve que l'Appelant a offerte A ce sujet, je me bornerai h dire que le verdict de 1'honorable juge Galt est le seul qu'il pouvait rendre en se fondant sur cette preuve, et que c'est avec raison qu'elles ont 6 renvoy6es.

Pour toutes ces raisons je suis d'avis que le pr6sent appel doit 6tre renvoy6 avec d6pens, et que l'Appelant n'a pas 6t6 diment 61u, mais que 1'honorable David Mills a 6t6 d-iment 61u.

HENRY, J.:

I concur in the conclusion arrived at in the court below by the learned judge who tried this case, and also with the learned Chief Justice of this court, with the exception of one point, and that is as regards the ballot papers which were numbered by the returning officer in No. 1 Sombra and handed to the voters and then returned to him so numbered.

The statute provides that the ballots should only have his initials and these have not. In the case of Jenkins v. Brecken I was of opinion that it was a fatal defect, but the ma- I18 jority of the court on that point were of a contrary opinion, and therefore on that point we must be EEON governed by the decision in that case. But as to the Hnumbering of the ballot papers it is a very different thing, for by numbering them the returning officer could identify the voter, although if he had only put his initials on them he would be unable to do so. The clear intention of the statute is, that no mark shall be put on the ballot which can leave that ballot open to a suspicion that it was so marked in order to identify the voter, and if such a mark is put on a ballot, it should, in my opinion, be declared illegal and bad. All these questions have been decided in the case of Woodward v. Sarsons and the head note in that case giving the result of the judgment, is as follows: Under this decision it appears to me that all the votes objected to as improperly marked and allowed by the learned judge in the court below were properly allowed, and the only question then is as to the ballots objected to as having been numbered.

Now, the object in not allowing the papers to be numbered, is to prevent anybody finding out for whom the parties who got these ballots have voted.

If we allow a ballot paper, which is numbered when handed to the voter, to be valid, then we put it in the power of the returning officer who has put the number on, with the aid of others, to be able to say for whom these persons voted. It seems to me that in every such case the law has been evaded, and there is not that secrecy which the candidates under the statute are entitled to exact. It is true that in this case it is contended that the returning officer acted in good faith, but if we are to be called to decide upon that question of good faith, it will be opening for this court, as well as for the court below, an issue which was never intended e to be tried under the statute. Under these circumstances I am justified in arriving at the conclusion that when a ballot paper has been numbered it is a ballot paper which should not be counted, because a returning officer would always be able, by referring to his notes, to ascertain for whom the voter has voted, and he can communicate his knowledge to his friends and thereby secrecy has been done away.

But in this case the appellant, although he does not claim to retain the seat on this ground, claims that the election should, in consequence of these ballots having been numbered, be declared void.

The question, it appears to me, is whether he is, as appellant in this case, in a position to ask this court to arrive at such a result. In the case of Jenkins v, Brecken, the learned Chief Justice says:- He (the respondent) accepts the return which gave him a majority of votes, takes his seat in Parliament as a duly elected member, and when his right to hold the seat is attacked, urges on this court to adjudge that at a legal election, regularly and properly held, he was elected by a majority of the electors, and that the majority being so in his favor, he is lawfully entitled to hold the seat he now occupies, but with the same breath, he says: If you cannot find the majority in my favor, then the whole election is irregular, illegal and void, and must be set aside; so that the validity or invalidity, according to his contention, is made to depend upon his having or not having a majority of votes; in other words, he says, through his counsel : If you find I have a majority of votes, it's a right good election and should not be disturbed, but if you find Mr. Brecken has the majority, its a dreadfully bad election by reason of divers illegalities and irregularities, and, forsooth, in the-public interests should not be allowed to stand. In the meantime, bad as this respondent contends the election is, great as is the public exigency, when he has not the majority, that it should be set aside, he finds it a good enough eleo- [VOL. VIn. tion to enable him to take his seat in Parliament and make laws for those unfortunate electors who have by these illegalities, mistakes, or irregularities of the returning officers, been prevented from legally electing their members.

But this contention cannot prevail.

It shocks common sense. If he wished to attack this election, he should have attacked it by petition, depositing his $1000 as security, when all the candidates at the election would be respondents, as would the returning officer whose conduet is complained of, as provided by section 64.

My brother Strong, in reference to this point also says :

The petition was filed by Mr. Brecken claiming the seat as having a majority of the legal votes. If the appellant desired to raise this question as to the validity of this election he should have presented a petition himself praying its avoidance, but this he has not done. The 66th section of the act of 1874, manifestly does not enable him to impugn the election as wholly void and irregular, without a petition; it merely enables a respondent to a petition, by which the seat is claimed, to recriminate, by shewing that even if the petitioner should prove that he has a majority, he is, by reason of the illegal conduct of himself or his agents, disentitled to have the seat awarded to him.

In that case although differing from the majority of the court on the point as to the initialling of the ballot papers, I said:- As to the other point, I think it was the duty of the sitting member, if he did not wish to allow the respondent to take the seat, to resign his own seat, and file a petition setting forth grounds to avoid the whole election. Then all parties interested would have been heard, which has not been the case here. They are not here, and this court cannot take upon itself to decide upon the rights of parties who have not been brought before it.

In reference, therefore, to these votes if the appellant had not taken his seat and the respondent was now sitting, according to the views I entertain, I think the appellant as a petitioner would have been entitled to have had the election declared void, but having taken his seat, in the face of the judgment of Jenkins v. Brecken, I cannot see how we can now at his request declare that the seat he is claiming should be declared void.

It is true that the appellant in this case could have the election declared void on account of acts of disqualification committed by the respondent or his agents, J. but as there is no evidence, in my opinion, to arrive at such a conclusion, I have come to the conclusion that in the present case the appellant is not entitled to the seat, and that the respondent is entitled to retain the seat to which he has been declared entitled by the judgment appealed from.

I have entertained--and I confess I do still entertain -grave doubts whether we should not be acting more in conformity with the spirit of the Dominion Elections Act, if we should insist upon a precise fulfilment of the terms literally prescribed by the 45th sec. of the Act, by requiring every ballot paper, in order to constitute a good vote, to be marked with a single cross. statute having piescribed a particular description of mark, and that prescribed being so easily made, it should, I think, be required as the only mode of complying with the statute. It would seem, however, that some people have a difficulty in making this so simple mark if we may judge from the very imperfect attempts to make it appearing upon some ballot papers; to avoid, therefore, as far as possible running the risk of avoiding an honest vote, I concur in adopting as the rule by which the court shall be governed in all questions to arise as to the sufficiency of a mark upon ballot papers in order to constitute a good vote, the rule as laid, down in the judgment of his lordship the Chief Justice in this case, however difficult the application of that rule may be in some cases, and however imperfect it may be in enabling us to draw with certainty the correct inference upon the question whether a particular mark was put upon the ballot with an honest or with an improper intent.

In Woodward v. Sarsons (1) the ipoe

Court of Common Pleas in England held, that there Gwne, .*being two or more crosses on a ballot paper did not invalidate the vote. Although there is this difference between the Imperial Act, upon which that case proceeded, and the Dominion Elections Act, that in the former the directions as to the manner in which a voter shall mark his ballot paper are contained in a schedule to the Act and not in the body of the Act, whereas in the Dominion Election Act they are prescribed in the body of the Act itself, still, as to the question whether two or more crosses upon a ballot paper should invalidate a vote, I cannot say that I see any difference between the two Acts; for the prohibition as to marking a ballot paper with any mark so that it could be identified is, in both cases, in the body of the Acts. Such double marking is treated in Woodward v. Sarsons as merely indicating, in an emphatic manner, the intention of voting for the one candidate. While the double marks may be, and perhaps in some cases are, put upon ballot papers merely with that intention, they may also be, I think, and perhaps in some cases are, put upon them with quite a different intention; namely, with the intention of affording means by which the voter could be identified for the purpose of procuring for him, in accordance with a promise to that effect, pecuniary recompense for his vote; and the possibility of their being used for this latter purpose seems to my mind, I confess, a sufficient reason for disallowing all ballot papers so marked.

If they are to be disallowed only upon evidence being adduced of an arrangement having been made that the voter should put such additional crosses upon his ballot paper, the difficulty of proving such pre-arrangement will be always so great, that we shall defeat, I fear, the object of the act, and render void a very material part of it which imperatively prescribes that all ballot papers having any mark upon them by which the voter could be identified shall be rejected. As, however, uniformity of decision in matters of this kind is all important, and as I cannot see any substantial difference in this particular between the Dominion Elections Act and that upon which Woodward v. Sarsons was decided, and as my learned brothers are all of opinion that such double marking should not ipso facto avoid a ballot, I concur in considering the point as settled by the judgment of the Court of Common Pleas in Woodward v. Sarsons. So doing, and adopting the rule as laid down by the Chief Justice in this case of all the contested ballot papers, there is only the one marked with an inverted V at polling division No. 6 Chatham which I am not satisfied comes within the rule as above laid down, and which, therefore, I think, should be disallowed.

The disallowance of this ballot would, however, make no difference in the result arrived at by the learned judge.

I see nothing in the case which would justify any interference with the judgment of the learned judge upon any of the cases of corrupt acts, nor, indeed, with his judgment upon the other points in the case save only in one, which, however, is, in my judgment, the one upon which the whole case turns; and with the greatest deference for the opinions of the learned judge and my learned brothers in this court, I am bound to say that I am of opinion that the deputy returning officer at polling division No. Sombra, erred in counting as good the votes contained in the ballot papers which had been marked by himself with the numbers on the voters' list opposite to the names of the voters to whom those ballot papers were given. Both tio [VOt. VIII. under the express provisions of the statute, and the judgment of the Court of Common Pleas in England in the case of Woodward v. Sarsons those ballots should not have been counted, but should have been rejected precisely the same defect as avoided all the votes cast at the polling division No. Dawn.

The duty of the deputy returning officer at the close of a poll is imperatively prescribed by the 55th sec. of the Dominion Elections Act of 187 1, as amended by the 10th sec. of the act of 1878, 41st Vic., ch. That section enacts that immediately after the close of the poll the deputy returning officer shall proceed to count the number of votes given for each candidate, and in doing so he shall reject all ballot papers upon which there is any writing or mark by which the voter could be identified. Now it cannot be questioned that a voter could be identified by his number on the voters' list being his ballot. Whether in point of fact he was, or was not, so identified at the time of the counting is a matter of no importance in the eye of the law. The statute in effect declares that a mark by which a voter could be identified is sufficient to avoid the ballot upon which such mark is.

Neither does the statute make any difference as to the persons by whom such mark may be put upon the ballot.

By whomsoever it was put upon it, the statute equally avoids the ballot and prescribes imperatively that it shall not be counted.

In the present case, as in that of Woodward v. Sarsons, the avoiding mark was put upon these ballots by the deputy returning officer himself. In that case it was not doubted that the 234 ballot papers so marked were void; they were declared to be such and that they could not be counted, but there the not counting them made no change in the result of the election because the candidate for whom 234 VOL. VIII.] SUPREME COURT OF CAlADA.

of the ballots thus rejected were cast had independently a majority of legal votes cast for him. The only difference which exists between that case and the present, is that the deputy returning officer here, when proceeding with the count, assumed to rectify, as he thought, the mistake which had been committed by himself, so that he might count the ballots so marked, and although the statute said they should not be counted, he proceeded to erase and has so successfully erased the numbers with which he had marked the ballot papers that they cannot now be identified, and so it cannot be ascertained for whom the votes in those ballot papers were given. The only question therefore is, was it competent for the returning officer to erase those marks and then to count the ballot papers. There is nothing in the statute vesting such authority in him, and, in the absence of an express provision to that effect, I am of opinion that he had no authority whatever so to do, and that we cannot sanction his act in so doing without in effect repealing the statute, the sole duty of the deputy returning officer after the ballot papers are put into the ballot box and the poll is closed, and his sole authority, is to count ballots therein as directed by the statute, and not to count but to reject, and to return as rejected, all ballot papers upon which there is any writing or mark by which the voter could be identified.

Such a mark being on the ballot paper avoids the ballot. This being so, the ballot is void from the moment it is put into the ballot box with the avoiding mark upon it; and because it is so void the statute says it shall not be counted. The statute gives no power to the deputy returning officer to make a void ballot good and then to count it. His simple duty was to reject all ballots that were in the ballot box when he opened it which the statute directed him to reject, and to count only such as the statute directed him to count.

All those being rejected which the statute said should not be counted, the rest only were to be counted. He had no authority whatever to erase any thing being on any ballot paper which he found in the box upon opening it at the close of the poll. If he might make a bad vote good, which he had himself made bad by putting the prohibited mark upon a ballot paper, I cannot see why he might not make a bad vote good in a case where such mark had been put upon it by the voter.

In this particular case I am free to admit that there is nothing in the evidence which justifies us in imputing to the deputy returning officer anything but an error of judgment, but if the imperative language of the statute should be disregarded because the officer's conduct was attributable solely to an error of judgment, it must needs be disregarded also in the case of a corrupt officer, who might do the same thing from a corrupt motive which he had the tact to conceal or to make to appear to be innocent; so to rule would be plainly to repeal the statute, and to substitute a totally different provision from that which the statute in express terms enacts.

In the present case the deputy returning officer by the mistake which he committed with intent, no doubt, to correct his first mistake, has unfortunately made the matter worse than it would have been if he had left the ballot papers with the prohibited mark upon them, for thereby he has rendered it impossible for the tribunal trying the election petition to say for which candidate those marked ballots were cast, and the result is that as the majority either way is so small, it is impossible to say which of the candidates had a majority of good, valid and countable votes. Had he suffered the marks which he had wrongly put upon the ballots to remain there unerased, we could have seen for whom the votes were given, and we could have determined as in Woodward v. Sarsons whether they had or not, and in what manner, affected the result of the election; but having erased the marks and counted the ballots, as it is now imposgible to identify the ballots which he so counted, and which the statute e, J. declared should not have been counted, we cannot say which candidate had the majority of good votes, and we have therefore, in my opinion, no alternative left to us but to say that there has been no election. It has been argued that such a decision would be at variance with our judgment in Jenkins v. Brecken, but there is really no resemblance whatever in this particular between that case and the present.

In that case the sitting member, after that the petitioner had, upon a scrutiny, succeeded in establishing that he had polled a majority of good legal votes, claimed the right of insisting under the 66th section of the Controverted Elections Act of 1874, 37 Vic. ch. 10, that the election was wholly void apart from the result arrived at on a scrutiny, and for reasons altogether unconnected with the question as to which of the candidates had polled a majority of legal votes. The contention of the sitting member was that, although his opponent had established that he had polled a majority of the legal votes, still the election should be avoided by reason of the returning officer not having properly regulated the polling districts as to the numbers of the voters, not having supplied the deputy returning officers in certain districts with a sufficient number of ballot papers, and not having in one district provided sufficient accommodation in the polling booths; and it was held that such objections could not be made by way of recrimination under the 66th sec. of 37th Vic., ch. 10, and that if they should prevail at all they should prevail wholly independently of any enquiry as to who had the majority of the votes polled. It is obvious that between that case and the present there is no parallel whatever. Here the whole matter is connected with the scrutiny, and is confined to the question-which of the candidates had the majority of legal votes polled for him ? The peti- J. tioners insist that Mr. ilils had. The respondent insists that he himself had, but, in investigating for the purpose of determining the question thus raised, it appears that at one of the polling booths certain ballot papers were marked in such a manner that the voters using those ballot papers could be identified, and that these ballot papers were counted although the statute imperatively prescribed that they should not be counted. These ballot papers, as the deputy returning officer when counting them erased the marks which he had himself put upon them, cannot be identified, and therefore it cannot be ascertained for whom the voters using them voted. The ballot papers having, however, been illegally counted by the deputy returning officer, ballot papers equal in number to those illegally counted should, in my opinion, be rejected from the votes cast at this polling division; but as it is impossible to say from which of the candidates the illegally counted ballot papers should be deducted, the result is that it is impossible by reason of the slight difference in the number polled for each to say which of the candidates had a majority of the legal votes,

Under these circumstances the tribunal upon which is cast the duty of determining which had such majority, must needs find itself incapable of determining this question, and has no alternative therefore left to it but to declare that there has been no election, and that all that has taken place must be set aside and a new election held to enable the constituency to solve the difficulty; and to this effect, in my opinion, our report to the Speaker of the House of Commons should be. Appeal dismissed with costs. Solicitors for appellant: Blake, Kerr, Lash 4 Cassels. Solicitors for respondents: Fitzgerald 8. Beck AGREEME1T-Agreement,

Construction

Evidence-Question for Jury-Contract seal.] To an action the counts brought T. and W. H. against the 0. R.

to recover money claimed to due fencing along the line of 0. railway, the

R. pleaded never indebted, and payment.

The agreement under which the fencing was made as follows of fencing tween Muskrat river, east, to Renfrew.

T and

W. A. to construct same next spring for

R. to equal to boards inches wide, and posts 7 and feet apart, for per rod, company to furnish cars for lumber.

T. # W.

.

B. F."

. controlled nine-tenths of the stock, and ublicly appeared to and was understood to e,andacte manag director manager of the company, althou h was at one time contractor for the building of the whole road.

T and A built the and the C. R.

have had the benefit thereof ever since.

The case was tried before Patterson, J., and a jury, and on the evidence, in answer to certain questions submitted the judge, the jury found that T. and W. when they contracted, considered they were contracting with the company through F., and that there was evidence that the company repudiated the contract till the action was brought, and that the payments made were as money which the company owed, not money which they were paying to charged to

F. and a general verdict was found for T. and

W. M.

Court of Canada-Held: (affirming the judgment of the Court below) that it was properly left to the jury to decide whether the work performed, of which the received the benefit, was contracted for the company through the instrumentality of F., whether they adopted and ratified the contract, and that the verdict could not set aside on the ground of being against the weight of evidence ;

[Ritchie, and Taschereau, J., dissenting, on the ground that there was no evidence that

F. had any authority to bind the company, T.

and W. M. being only sub-contractors, nor evidence ratification.]

(P.Q.)

Assessment for footpaths-Validity of-Proof error-Onue probandi-Voluntary payment- ASSESSMENT.-Conted.

Notice, want of the under the authority of Vie., (P.O.) the City Council of the city of Montreal resolution adopted a report their road committee prepared the 30th April previous, as amended by a report their committee of recommending the construetion of permanent sidewalks in the following streets (inter alia) Dorchester and St. Catherine. the adoption of these reports, with which estimate indicating the quantity of flag stone required for each street, and the approximate cost of the work made in each street, had been submitted, the city surveyor caused the sidewalks said streets to made, and assesthe cost of these sidewalks ac.ording to the front of the real estate owned the proprietors on each side of the same, and prepared a statement the same, which deposited with the treasurer for collection. D. B. possessed real estate Dorchester and St. Catherine streets, and did not object to the construction of the new sidewalk.

the 3rd December, a days after receiving a notice the city treasurer to pay within days certain in default whereof execution would D. B. paid, without protest, ; and the 29th October, paid further sum and the 14th November, without having received any notice, paid account of assessment.

an action instituted D. B.. against the city Montreal, to the said of money which she alleged to have paid in error, believing the assessment valid.

Held,-afflrming the judgment of the Court below-(Henry and Gwynne, JJ., dissenting), that D. B. had failed, both in allegation and proof, to make out case the recovery of the assessment paid her, either as a voluntary payment made in ignorance of its illegality, or as constrained payment of an illegal tax, and that mere irregularities in the mode of proceeding to the assessment, although they might, in proper proceeding, have entitled the ratepayers to have had the assessment quashed, did not now entitle her to recover the amount back a payment of a void assessment illegally extorted.

That the City Council laying pavements parts of the city only, the cost which was paid assessment according to the frontage of the respective properties, and not in proportion to the cost the part laid opposite each property, acting within the scope the power conferred upon them

nor on at the trial of the case, was irrelevant

See

2-Judgment Court of Appeal, partly final partly of fact appeal. Duty of appellate court - ---- 4-Judgment demurrer appealable, - - - - - - Banking Act,

Vic., 5, 40-Advances Real Estate.] B., on the January, transferred to the of T, (appellants) notarial deed an hypothee certain real estate in Montreal, made t, collateral security for a note which was discounted the appellants and the ceeds placed at B's credit the same day which transfer was made.

The action was brought the appellants against the insolvent estate to set aside a prior hypothee given by and to establish their priority. leldthe judgment the Court of Queen's

Bench) that the transfer B. to the Bank

T. was not given to a past debt, but to cover contemporaneous loan, and therefore null and void, being a contravention the Banking Act,

Right transfer shares under Banking

Act

---- -- STAMPS-Unstamped bill of Exchange-42

13-Knowledge-Queshon for

Judge.]

The action was brought T. al against 0. to recover the amount of a bill exchange. It appeared that the draft when made, and when received T. et al, had stamps;

that they knew then that bills and promissory notes required to stamped, but never gave it a thought, and their knowledge that the bill was not stamped was when they gave it to their attorney collection the February, and they immediately put double stamps.

The bill was received evidence, leave reserved to the defendant to move for a suit; the learned judge stating opinion that though fact plaintiffs knew the bill was not stamped they received it, and knew that stamps necessary, they accidentally and not intentionally omitted to them till their attention was called the omission in ruary,

Held, 1. That the question to whether the holder of a bill or draft has double stamps upon an unstamped bill draft soon as the state of the bill was brought to knowledge within the terms of sec. is a question the judge at the trial and not for the jury. (Gwynne, J., dissent- 2. That the " knowledge " referred to in the Act actual knowledge and not imputed presumed knowledge, and that the evidence this showed that T. acquired this knowledge the first time on the day affi#.d stamps the amout of the double duty, 26th February, That the want proper stamping due time is not a which need pleaded (Gwynne, dissenting.) ACT-Construction of-Sees.

BY-LAWS-Municipal by-law, validity of-Grant bonus to railway cnmpany municipal by-law -Remedy-Action at law lamus-34 Vic., (.), construction the Grand Junction Railway was amalgamated ivith the Grand Trunk Railway Canada. former railway not having built within the time directed, its charter pired. In an act was passed the Dominion Parliament to revive the charter of the Grand Junction Railway but gave it a slightly different name, and made changes the charter. After this, in a by-law fo aid the company was introduced into the county council of Peterborough. This law was read twice only, and, although in the by-law it was set out and declared that the ratepayers should vote said proposed by-law the 16th November, it was on the November that the ratepayers voted on a by-law to grant a bonus to the appellant company, construction the road to commenced before At the time when the voting took place-on the by-law, there was power the municipality to grant bonus.

February, the Act (0.) passed, which declared the by-law valid as it had read third time, and that it should legal and binding on all persons, if it had passed after the act. the same day the same year, was passed, giving iwer to municipalitiesto aid railways grantingbonuses. the (0.) was passed,amending and consolidating the acts relating to the pany.

In the company notified the council send the debentures to the trustees who had appointed under (0). the council served formal notice on the company, repudiating all liability under the alleged law.

Work had commenced and time for completion was extended (0). interest or sinking fund had been collected the corporation the county of Peterborough, and no demand was made for the debentures until when the company applied for mandamus to issue BY-LAWS.-Continued.

and deliver them to the trusteps.

Held,-affirming the decision of the eourt below. that the effect the statute (0.), apart any it might have of recognizing the existence of the railway company, was not to legalize the by-law favor of the company, but was merely to make the by-law valid if had read a third time, and as if the municipality had had power to give a bonus to the company, and, there being certain other defects in the said by-law not cared the said statute, the appellants could not recover the bonus the defendants. Per J., Fournier and

Taschereau, J.J., concurring : the undertaking entered into the municipal corporation contained in by-law for granting bonuses to railway companies, is in the nature of a contract entered into with the company for the delivery to it of debentures upon conditions stated the by-law, the only way in Ontario which delivery to trustees on behalf of the company can be enforced, before the company shall have acquired a right to the actual receipt and benefit of them by fulfilment of the conditions prescribed the by-law, an action under the provisions the statutes force then regulating the proceedings actions, and not summary process motion for the old prerogative writ mandawhich the writ mandamus obtainable motion without action still Per Henry, J., that if appellants had made out right to a bill to enforce the performance of a contract ratified the Legislature, they would not have the right to ask for the present writ of mandamus.

CORPORATION

PETa- CONTRACT-Petition Right-Non-liability

Crown Parlamentary Printirig Contract.]

H. in his capacity of "clerk of the Joint mittee of both Houses on Printing," advertised for tenders for the printing, furnishing the printing paper and the binding required for the Parliamentof. the Dominion of Canada. The tender of the suppliants was accepted the Joint

Committee and both Houses of Parliament adoption of the committee's report, and a contract was executed between the stppliants and H. his said capacity.

The suppliants, their petition, contended that the tender acceptance constituted contract between them and and that they were entitled to do the whole of the printing required for the

Parliament Canada, but had not given the and they claimed compensation way of damages.

Held (reversing the judgment

Henry, J., in the Exchequer Court), that the Parliamentary printing a matter connected with the internal of the Senate and of Commons over which the Executive

Government had no control; and that the Crown was no party to the contract with the suppliants and could not held responsible for a breach

2- Departmental Printing Contract-Mutuality -Liablity Crton.] tnder & Vic., 7, which provides that the printing, binding and other like work required for the Partm'nnts of the Government shall (tone an I furnished under contracts entered into under authority of the Governorin Council after advertisement tenders, the Under secretary of State advertized for tenders for the printing " required by the several departments of the Government."

The suppliants tendered such printing, the specifications annexed to tender, which were supplied the Government, con. taining various provisiuns to the manner performing the work and giving of security. The tenders accepted the Governor Council, and an indenture was executed between the suppliants and Her which the suppliants agreed to perform and execute, &c , " all or lots of printing the several partments of the Government of Canada, reports, of every description and kind coming within the denomination of Departmental printing, and all the work and services con. nected therewith and appertaining thereto, set forth the said specification hereunto annexed, in such numbers and quantities may specified in the several requisitions which may made upon them for that purpose time to time and behalf of said several respective departments."

Part of the Depaitmental printing having been given to others, the suppliants, their petition, claimed compensation way of damages, contending that they were entitled the whole said printing. Held (affirming the judgment of Henry, J., the Exchequer Court), that having regard to the whole scope and nature the transaction, the statute, the advertisement, the tender, the acceptance and the contract, there was a clear intention shown that the contractors should have all the printing that should required the several departments of the Government, and that the contract was not a unilateral contract but a binding mutual agreement.

(Taschereau and Gwynne, JJ., dissenting.)

Ta V. Not

CBOWN-Non-liability Parliamentary Contract -- --- 2- Liability Departmental Contract. Non-liabily for nonfeasance or misconiucl of its servants.

4-Not a carrier.

PETITION-Appeal Election Petition--42 ch. Supreme and Exchequer

Court Amendment of construetion of-Rule absolute Court in banc to scind a Judge in Chambers-Preliminary objection.] petition was duly and sented appellant the 5th of August, under "Dominion

Controverted Elections

Act, against the return of respondent.

Preliminary objections were respondent, and the hearing the at.

torney and agent of respondent obtained, on the from Justice Weldon, an authorizing the withdrawal of the deposit money and removal of the petition the money withdrawn, but shortly afterwards, in January, the appellant, alleging he had had no knowledge of the proceedings taken hs agent and attorney, obtained upon summons, a second order Justice rescinding his prior order of October, and directing that upon the appellant re-paying to the clerk of the court the amount of the security, the petition restored, and that the appellant at liberty to proceed. Against this order

January, the respondent appealed to the

Supreme Court of Brunswick, and the court gave judgment, rescinding it.

Thereupon petitioner appealed to the Supreme Court of Canada.

1/eld,-That the judgment appealed from is a judgment a preliminary objection within the meaning of ch. (The preme Court Amendment Act, and therefore not appealable.

(P.Q.), for the of The petition was met preliminary objections, in which the sitting member alleged, inter alia, that the petitioners were not electors, nor qualified to vote at the election in question, &c.

having the hearing of these liminary objections, evidence was given them, and they were dismissed Plamondon, J., who following the practice adopted the

Superior Court of sitting an election

Court the L'Islet case, Duval v. Casgrain, that the onus probandi was the respondent to support such objections.

appeal the

Supreme Court of Canada, Fournier, Henry and

Gwynne, JJ., were opinion that the onus probindi on the appellant, who his preliminary objections had the disqualification of the petitioner. Contra, Ritchie, J., and

Strong and Taschereau, JJ. The Court equally divided, the judgment of the Court below st without costs.

3-Dominion trovrted Election-Ontario

Judic.ture Act, efect of-Presentation petition.] The election petition against the election and return of the respondent was titled in the High Court Justice, Queen's Bench Division, and was presented to the in charge of the of the Queen's Division, and and entered in the books preliminary objection was taken that the High C'ourt of Justice had no jurisdiction.

Held, (1enry and Taschereau, JJ., senting), reversing the judgment of Cameron, J., that the Ontario Judicature Act, makes the High Court of Justice and its divisions a continuation of the former courts merged it, and that those courts still exist under new names; and that the petition had not been irregularly entitled and

Held the decision of the court below), that the ballots were properly rejected.

Certain ballot papers were jected to having imperfectly marked with a cross, or having more than one cross, having an inverted V, or because the was not directly opposite the name the candidate, there being only two names the ballot paper and a line drawn dividing the paper in the middle. Held the ruling of the learned judge at the trial), th at these ballots were valid -[per

Ritchie, O.J.]-whenever the mark dences an attempt or intention to make a cross, though the cross may respects imperfect, the ballot should counted, unless from the peculiarity of the mark made it can reasonably inferred that there was not an honest design simply to make a but that there was alo an intention mark the paper that it identified, which the ballot should rejected.

But if the mark made indicates design of complying with the law, but on the contrary clear intent not to mark with a as the law directs, for instance, making a straight line or round 0, then such non-compliance with the law renders the ballot null. Division Sombra-During rogress of the voting, at the request of one the agents, who thought the ballot papers not being properly marked. the deputy returning who had putting initials and the numbers the counterfoil,not on the ballot papers initialled and numbered about twelve the ballot papers, but' finding was wrong, at the of the poll, in good faith and with an anxious INIEX.

S. 0. R. VoL. VIII.]

PETITION.-Continued.

desire to his duty, and in such a way not to allow any person to the front of the ballot paper, and with the assent of the agents of both parties, took these ballots out of the box and obliterated the marks had put upon them.

H1eld(Gwynne and Henry, JJ., dissenting), that the irregularities complained not having infringed upon the secrecy of the ballot, and the ballots being unquestionably those given the deputy returning to the voters, these ballots should be good and that said irregularities came within the saving provisions the Dominion Elections Act,

Per Henry, J., that although the ballots should considered bad, the present appellant having acted upon the return taken his seat, was not in position to claim that the election was

ERROR-Proof of

2- In will

-- - -for Jury

-- --- -- -- 1876-Judgment demurrer appealable-3rd Supreme Court Amendment

Act, 1879-38 Construction of-Purchase of insolvent outside

Dominion Canada-Pleadings-Insolent ss.

itntra vires.] P. at., merchants carrying business England, brought an action for the courts against J. S. et and order to bring al.

within the purview of the Insolvent

Act of special count alleged their declaration that a purchase of goods was made

S. al., them the 13th and another purchase the 29th of the same year; that when al. made the said purchases they had probable cause for believing themselves to unable to meet their engagements and concealed the fact from P. al., thereby becoming their creditors with intent to defraud P. at. J. (appellant) amongst other pleas, pleaded that the contract out which the alleged cause of action arose, was made in England and not in Canada. this plea P. al. demurred.

It was agreed that the pleadings were to treated as amended alleging that the defendants were traders and

British subjects resident and domiciled in Canada at the time the purchase of the goods in tion and had subsequently became insolvents under the Insolvent Act of and amendments thereto. Beld,-(Tasehereau and JJ., dissenting) That although the judgment appealed from was decision a demurrer to part of the action only, it was a finaljudgmentin a judicial proceeding with the meaning of the 3rd ofthe upreme Court Amendment Act of Per Ritchie, J., and Fournier, J.: 1st. That of the insolvent Act of intra vires of the Parliament of Canadz. That the charge fraud the present suit merely a proceeding to payment of a debt under a law relating to bankruptcy and insolvency over which subject-matter the Parliament Canada has power to legislate.

3rd. Although the fraudulent act charged was committed another country beyond the territorial jurisdiction of the courts in Canada, the defendant was not exempt for that reason from liability under the provisions of the of the Insolvent Act, and therefore the plea demurred to was and the appeal should dismissed. Per Gwynne, J.: demurrer does not raise the question whether the of the Insolvent Act of or is not ultra vires of the Dominion Parliament, for whether itbe or not, the plea demurred bad, inasmuch as it confesses the debt for which the action is brought, 'and that such debt was incurred under circumstances of fraud, and no matter whatever of avoidance or in bar of the action; therefore if the appeal be entertained it must be dismissed. Per Strong, Henry and Taschereau, JJ. : There being nothing eitherin the language or object the sec. the Insolvent Act to warrant the implication that it was to have any out Canada, it must be held not to extend to the purchase of goods in England defendant, stated in the second count of the declaration. In this view, it unnecessary to decide as to the constitutional validity of the enactment question, and the appeal should allowed. The court being equally divided the appeal was JUDGMENT-Appeal - Judgment Court of Appeal, partly final partly interlocutory- Efect of-Experts, reference

St. L. claimed of . balance due a building contract. denied the claim, and, incidental demand, claimed for damages resulting from defective work. The Superior Court, 27th gave judgment favor of St. L. for the whole amount of his claim, and dismissing S's. incidental demand.

Thisjudgment was reversed the Court of Review, on the 29th December,

St. L. appealed to the Court of Queen's Bench, and the 24th November, that court held that St. L. was entitled to the balance claimed from which should deducted the cost of rebuilding the defectively constructed work, and in order to ascertain such cost, the case was remitted to the Superior Court, whom experts appointed to ascertain the damage, and, on their report, the I1DEX.

Superior Court, on the held that it was bound the judgment of the Court

Queen's and deducting the amount awarded the experts the balance claimed by St. L., gave judgment for the difference.

This judgment was the Court

Queen's ench, the January,

Beld,-On appeal, that the judgment of the

Court Queen's of the 24th November, judgment the merits, that the Superior Court, when the case was remitted it, rightly held that it was bound that judgment, and that St. L. was entitled the balance thereby found due to him. Per

Fournier, J.-1. That the judgment of the though interlocutory in that part of it which directed the reference to experts, was on the other points in litigation, and could therefore have properly appealed a final judgment. 2. That although an appeal judgment appellant may have the right to impugn an interlocutory judgment rendered in the cause, yet this right if voluntarily and without reserve acts upon such interlocutory judgment.

High Court Justice in

Dominion Controverted Elections

2-Of preliminary objections in Election

Petition- - - - - - PATENT-Dominion Lands Act, cap.

sub-secs. 7 and 8-Homestead Patent, validity of Bill-Equitable or stautory title- Demurrer-39 cap.

The plaintiff bill of complaint, alleged in the paragraph as follows:-" Prior the Ist the plaintiff made application to homestead the said lands in question herein, and procured proper affidavits, according to the statute, whereby proved to the satisfaction of the lands agent in that behalf (and the plaintiff charges the same true), that the said defendant Farmer had never settled or improved the said lands assumed to be steaded him the lands herein in question, but had been absent therefrom continuously since pretended homenteading and pre-emption entries, and thereupon the claim of the fendant Farmer under the said entries and forthwith and any pretended rights the defendant Farmer thereunder ceased, and the plaintiff thereunder, or about the 8th and then and there with the a-sent and the direction of the Dominion

PATENT.-CointuecL lands agent, who caused the same to prepared for the plaintiff, signed application a homestead right the lands in question this suit, according to mentioned cap- and did make and swear t3 an affidavit according to Form B, mentioned in sub-sec. 7 of the Act. and pay to the same agent the homestead of who accepted and received as the homestead and thereupon the plaintiff was informed that had done all that was necessary or required for to tinder the statute and the regulations of the Department, and that the statute said: making this affidavit and it and payment of of which shall receive a receipt from the agent), should permitted enter the lands the application; and thereupon and in pursuance thereof, and faith, the plaintiff forthwith enter upon land and take actual possession thereof, and ever since remained actual occupation thereof, and has erected house and other buildings thereon, cleared large portion of said lands and fenced and cultivated the same, and made many other valuable improvements thereon, costing in the aggregate demurrer for want of equity : Held (reversing the judgment of the court below, and allowing the murrer) that the plaintiff bad locus standi to attack the validity of the patent issued the Crown to the defendant, had not alleged a sufficient interest right to the lands therein mentioned, within the meaning of sec. of sub-sees. 7 and 8 of of cap there being no allegation that an entry of a homestead right in the lands in question made, and that plaintiff had been authorized to take possession of the land the agent, one having authority to so behalf of the Crown, or sufficient allegation that the Crown was ignorant the facts plaintiff's possession and improvements (Taschereau and JJ., dissenting.) Per Strong, J., that when the Crown has issued the letters patent in view all the facts, the grant conclusive, and party cannot up equities behind the patent.

RIGHT-Non-liabilityof Crownfor son-feasance or mis-feasance its servants- Public work-Public police-Crown not a common carrier.] McL., the suppliant, purtravel from Chirlottetown to Souris on the Prince Edward Island railway, owned the Dominion of Canaja, andoperated under the management of the Railways and Canals, and while said journey sustained serious injuries, the result of an accident to the train.

petition* of right the suppliant alleged that the railway was negligently and unskilfuUy conducted, managed and maintained Her Majesty; that Her disregarding RIGHT.-Continued.

her duty in that behalf and her promise, did not carry safely and securely suppliant said railway. and that was greatly and permanently injured body and health, and claimed

learned judge at the trial found that the road was a unsafe state from the rottenness of the ties, and that the safety of had been recklessly jeopardized running trains over it with passengers, and that there had been breach of contract to carry the suppliant safely and securely, and awarded

Court of Canada : Held (Fournier and Henry,

JJ., dissenting), that the establishment

Government railways in Canada, of which the

Minister of Railways and Canals has the management, direction and control, under statutory provisions, for the benefit and advantage of the public, branch of the publicpolice created statute purposes of public convenience, not entered upon or to treated private and mercantile speculation, and that petition of right not lie against the Crown injuries resulting the non-feasance or misfeasance, wrongs, negligences, omissions duty of the subordinate or agents employed in the public service on said railways.

That the

Crown not liable as carrier for the safety and security of passengers using said

Plea

2-Want ofproper stamps not a

Ploa confessing for which action is of-The Banking b, an I 58-Rights shareholders-Resolutions dir'ctors and sharehol iers not binfing on absent shareholders-EAquitable plea.] of L brought action against S., the appellant (defendant), as shareholder, to cover a call of per cent. twenty-five shares held that bank.

the plea, equitable grounds, the defendant said, " that before the said call notice to the defendant, the defendant made, in faith and for valid consideration in that behalf, a transfer and assignment of all the shares and stock which had held in the Bank L. to a person authorized and to receive the same, and the defendant and the transferees the said shares or stock all things were necessary for the valid and transferring of the said shares stock; but the said plaintiffs, without legal and without rearefused to record such transfer, to register

Continued.

the same in the books of the bank, to recognize the said transfer. And the defendant prays that the said of L. shall compelled and decreed to make and complete the said transfer, and to all things required its part to be done to make the said transfer valid and tual, and the said of L. enjoined from further prosecution of this suit " The plaintiffs replication this plea, but at the trial of the action, which took place James, J., without jury, they attempted to justify the refusal permit the transfer of the shares upon the ground that at a special general meeting the shareholders of the Bank of L. held the 26th June, it was resolved "that, in the opinion of the meeting, the Bank of L. should not allowed to into liquidation, but that steps should taken to obtain loan of such sum may necessary enable the bank to resume specie payments, and that the shareholders agree to hold their shares without assigning them until the principal and interest due such loan shall fully paid, and to ecute, when required, a to that The defendant was not present at the meeting when this resolution was passed, and it appeared from the evidence that the Bank of L a loan of the Bank of the security of one who, secure himself, took bonds to lesser amounts other shareholders, including the defendant, whose bond leased B. when the defendant sold shares. This did in to certain persons then good standing, and powers attorney executed defendant and the purchasers respectively, were sent to the manager the Bank of L., in whose favour they were drawn, to enable him to complete the transfer. The directors of the L. refused to permit the transfer, but the fendant was not notified of their refusal, nor did they make any claim against him any indebtedness part to the Bank; and it appeared also the evidence that subse. quently to the resolution the 26th of June, and prior to the sale defendant of his shares, large number of other shares had transferred in the books of the bank. In October, the of L. became insolvent, and the Bank of the respondents, obtained leave to intervene and carry the action. At the trial a verdict was found the judge in favour the appellant; but the Supreme Court of Nova Scotia, James dissenting, made absolute a rule nisi to set aside the verdict.

appeal to the Supreme Court Canada, it was (1), (reversing the judgment of the Supremn Court of Nova -otia) : That the resolution of the June, could not bind shareholders not present at that meeting, if it had been acted -upon, and under the facts disclosed in evidence the defendant could not deprived of legal right under the Banking Act to trans'er shares and to have the transfer recorded in the books of the bank; and the plea was theregood equitable defence to the action. BHAREROLDERS.-Contimed.

Per and Gtaynne, JJ. : It doubtful whether the strict rules applied in England to equitable pleaded under the L. Procedure Act should adopted with reference to such pleas in Nova Scotia, where both legal and equitible are administered the court and in the same forms of procedure.

STATUTES-Construction of-R. 0.

1, construction of-Non-floatable streams

-Private property.] the decree of the Court of Chancery Ontario the respondents were restrained driving logs through, or otherwise interfering with, a certain stream, where passed through the lands of the appellant which portion of said stream was artificially improved so to float saw logs, but was found the learned judge at the trial not to have navigable floatable saw logs other timber, rafts and crafts, when in a state nature.

The Court of Appeal reversed this the ground that C.S.

re-enacted R. 0. 1, made all streams, whether naturally or artificially floatable, public waterways. Held, (reversing the judgment the Court of Appeal andrestoring the decree the Court of Chancery), that the learned Vice-Chancellor who tried the having determined that upon the evidence adduced the stream at the locus in when a state of nature, was not floatable without the aid artificial improvements, and such finding being supported the evidence the the appellant had, at law, the exclusive right to property pleased, and to prevent respondents using as a highway the stream in question where it through appellant's private property.

Held,- Also(approving Boale Dickson U.

that the 0. re-enacted the 0. 1, which enacts that shall lawful all persons to float saw and other timber, rafts and crafts down all streams Upper Canada, during the spring, summer and autumn freshets, etc , extends to such streams as would, in their natural state, without improvements, during freshets, permit saw timber, to floated down them, and that the portions of the stream in question, where it passes through the appellant's land, were not within the said statute. [The Privy

Council since reversed the decision of the

Supreme Court and restored the judgment

5-34 5, and - STATUTES.-O0atnued.

6-34 sees.19 and - 7-35 (D.); (D.)

.

Righits of lumbermen

--- -Ameniment

Act, 1879-3rd section, construc- 2-Section

TAXATION-Constitutional law-Tax upon fylings in Court-Indirect tax-Jurisdiction of Provincial Le islature-43 ani 8. 9 (Que.)]-1y the Act and it enacted that " duty ten cents shall imposed, levied, and collected on each promissory note, receipt, bill of particulars, exhibit, whatsoever, produced and fyled before the Superior Court, the Circuit Court, or the Magistrates'

Court, such duties payable stamps."

The Act declared to an amendment and extension the Act and " An Act for the collection means stamps, of and duties, payable to the Crown upon law proceedings and registrations." section 2, the duties levied are to to payable the Crown." appellant obtaineI a rule nisi against the prothonotaries of the Superior Court at Montreal contempt in refusing receive and fyle an exhibit unaccompanied a stamp, as required the Act.

the return the rule the Attorney-General for the Province obtained leave intervene and cause.

Held, (Reversing the judgment of the Court of Queen's Bench Lowcr Canadq, appeal Strong and Taschereau, JJ., dissentig;, that Act the tax in question ultra vires, tax being an indirect tax and the proceeds to part the Consolidated Revenue Fund of the Province TAXATION.-Continued.

for general purposes. Per Strong and Taschereau,

JJ., dissenting: although the duty an indirect tax, yet, under and of the

Act, the Provincial Legislature had power to impose it

LICENSES-lifiunction-41 ch. 14

(P.Q.)-Sale ly Commissioner of Crown Lands of lands subject current timber of-Licensee's rights.]-Under the provisions the Act, Vic., the D. of L.

in November, alleging themselves to proprietors and possession of number lots the township of Whitton, P. obtained an exparte injunction, restraining B. H. et al.

from further prosecuting lumbering operations which they had begun on these lots.

B. H.

et al. cutting virtue of a license the Government, dated 3rd which was a renewal of a former license.

a report of the Executive Council of the Province dated Ist April, and approved the Lieutenant-Governor in Council on the

7th of the same month, the Commissioner

Crown Lands was authorized to sell the pany the lands question, and the company deposited to the credit of the Department, to applied account of the intended purchase.

the 9th of the company gave out a contract the clearing of a portion the land, and on the 19th July, the Commissioner executed of sale favor the company, subject, amongst other conditions, to the current licenses to cut timber the lots."

Upon the writ being returned, the junction was suspeade1.

B. H. et al. answered petition, and the Superior Court solved the injunction.

appeal to the Court of Queen's Bench, this judgment was reversed and the injunction applied for made perpetual.

appeal to the Supreme Court Canada was Held, (Henry and Gwynne, JJ., dissenting), that the D. of L. I had not quired any valid title the lands in question prior to the July, and that the instrument of that date their rights were subordinated all current licenses, and B. H.

al. having established their right to said lands the purpose of carrying their lumber operations under a license the Crown, dated the injunction granted ex parte to the D. of L. C. in under the provisions of 14

(P.Q.), had been properly dissolved the superior Court.

RECEIPTS-34 5 D- Right property.] -At the request of the solidated Bank, to whom the Canada Car

Company owed large sum of money,

. consented to act as warehouseman to the company for the purpose of storing certain car wheels and

RECBIPTS.-Continued. pig iron, so that they could obtain warehouse receipts upon which to raise money.

pany granted M. a lease for a year of a portion their premises, which the wheels and iron were situate, in consideration of Consolidated Bank then gave him a written guarantee that the goods should forthcoming when required, and therefore issued warehouse receipt to the company the property, which they endorsed to the Standard and obtained an advance thereon, which they paid the Consolidated Bank. It appeared that M. was a warehouseman carring on business another part of the city; that acquired the lease the purpose of giving warehouse receipts to enable the company to obtain an advance the Consolidated Bank; and that had not seen the property himself, but had sent foreman to examine it before giving the receipt

In February, an attachment in insolvency issued against the company, and K. al., as their assignees in insolvency, took possession the goods covered this receipt, claiming them as part of the assets of the estate. . then sued K. et at , in trespass and trover for the taking. Held,-per Strong, Taschereau and Gwynne, JJ. (affirming the judgment the Court of Appeal, and that of the Court Queen's Bench), that M. never had any actual possession, control over, or property in, the goods question, to make the receipt given under the circumstances this a valid warehouse receipt within the meaning the clauses in that behalf in the Banking Act. Per Ritchie, C.J., and Fournier and Henry, JJ., contra, that M. quoad these goods was a warehouseman within the meaning of D, so as to make his receipt endorsed effectual to pass the property the Standard for the security of the loan made to the company in the usual course of its banking busi- Receipts-34 ch. intra vires.] appellants discounted for a trading the understanding that a quantity purchased the should consigned them, and that they would transfer to the the bills of lading, and should receive from one of the members of the his receipt as a wharfinger and warehouseman the coal as having deposited them, which was done, and the following receipt was givea : "Received store in Coal warehouse at Toronto, Merchants Bank Canada (at Toronto), fourteen hundred and eight tons stove coal, and two hundred and sixty-one tons chestnut per schooners ' Dundee,' ' Jessie Drummond,' ' Gold Hunter,' and ' Annie to delivered to the order of the said Merchants Bank to dorsed hereon.

This to regarded as a receipt under the provisions of Statute ch. 5-value

The said coal facing esplanade separate and will RECEIPTS.-Continued.

kept separate and distinguishable fiom other coal.

Dated 10th August,

The partnership having insolvent, the assignee sought to hold the the goods of the insolvents, and a bill impeachin" the validity of the receipt. The Chancellor wo tried the found that the given a valid receipt within the provisions of the Banking Act, and was given a warehouseman, and that the was entitled to hold all the coal store of the description named in the receipt.

This judgment was versed the Court of Appeal for Ontario, and on appeal to the Supreme Court of Canada was-Held (reversing the judgment of the Court of Appeal) that it not necessary to the validity of the claim of bank under a warehouse receipt, given an owner who is a warehouseman and wharfinger and the goods his that the receipt should reach the hands the bank indorsenient, and that the receipt given I. in this was a receipt within the meaning of

(Ritchie, and Strong, dissenting), That the finding of the Chancellor to the fact

W.S. being person authorized the statute to give the receipt in question should not have reversed, as there was evidence that W.S. a wharfinger and warehouseman. Per Fyourni-r,

Henry and Taschereau, JJ., That sections and of (D) are intra- vires the Dominion Parliament.

WILL, validity of-Insanity-Legaty to

Error-False cause-Question of fact on appeal,

Duty of Appellate Court.] P.L., executor under will the late WR., sued curator the estate R. during the lunacy of the latter; to to hand the estate to him executor. After preliminary proceedings had taken, E. R. (the appellant) to intervene and have W. R.'s last will set aside, the ground that it had been executed under pressure byD. J f, W.

whose favor the will was made, while the testator of unsound mind.

The appellant claimed and proved that D. J. was the legal of R., she having another husband living at the time the second marriage was contracted.

W. R., who was a master pilot, died in having made a will two years

WILL.-Continued.

viously. His estate was valued at about$16,000 the 4th October, W. R. made a will which bequeathed 5 and all his household furniture and to his wife . M., his niece E. R., to F. charitable purposes, and the remainder of his his brothers, nephews, and nieces equal shares.

the 8th of the same month he made another will before the same nuttry, leaving to his wife.J.M., to each of nieces M. and B. R , and to brother, with reversion to the nieces if not claimed within a year, and the remainder E. R.

November, W. R. made another, will which the subject of the present litigation, and which revoked his former wills and gave to F. for the poor of the parish of St. Rochs, and the remainder of his property to "beloved wife the 10th January following R. was interdicted as maniac, and a curator appointed to his estate. remained in an asylum until December, when he was released, and lived until his death with his E. R., sister of the appellant. Chief Justice Meredith upheld the validity of the will, and decision was the Court Queen's Bench.

Court Cansda: Held (1) [reversing the judgments the courts below, Ritchie, and Strong, dissenting], that the proper inference to drawn all the evidence to the mental capacity of the testator to make the will of the November, was that the testator, at the date of the making of the will, was of unsound mind.

That, it appeared that the consideration for the testator's liberality to J was that supposed her to ' my loved Julie Morin," whilstatthattime J ff. was, in fact, lawful of another man, the universal bequest to

. if was void, through error and false cause.

That it the duty of an Appellate Court to review the conclusion arrived at courts whose judgments are appealed from upon a question of fact when such judgments not turn upon the credibility any the witnesses, but the proper inferto drawn from all the evidence in the case.

WORDS-Construction of-"All streams"