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Full text of "Municipal manual : being a complete annotation of the Ontario Municipal Act and commentary on certain analogous section of the municipal acts of other provinces"




OJnrnriniam *rl)Dol ffitbrarg 



Cornell University Library 
KEO 869.R66 1920 
Municipal manual :bejng a c^^^^^^^^ 




3 1924 016 956 629 




Cornell University 
Library 



The original of tiiis book is in 
tine Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 



http://www.archive.org/details/cu31924016956629 



MUNICIPAL MANUAL 



BErNG 



A COMPLETE ANNOTATION 



OF THE 



ONTARIO MUNICIPAL ACT 



AND 



COMMENTARY ON CERTAIN ANALOGOUS SECTIONS OF 
THE MUNICIPAL ACTS OF THE OTHER PROVINCES 



By 

Hon. H. a. 3OBSON, K.C., 

OF THE BARS OF 

ALBERTA, SASKATCHEWAN, MANITOBA AND ONTARIO, SOMETIME 

COMMISSIONER OF PUBLIC UTILITIES FOR THE 

PROVINCE OF MANITOBA 



AND 



J. B. HUGG, K.C., 



OF THE MANITOBA BAR 
AUTHORS OF ROBSON Be HUGO'S LEADING CASES ON PUBLIC CORPORATIONS 



TORONTO; 

THE CARSWELL COMPANY, LIMITED 

1920 



/3. 



CoPTKiGHT : Canada, 1920, by the Carswell Co., Limited. 



PREFACE 




The municiipal corporation is the organism of govern- 
ment which is closest to the people. It is in local gov- 
ernment that the citizen finds his control or influence 
most direct. The growth of local power in the municipal 
farm has been little short of marvellous. It has devel- 
oped from mere maintenance of roads and market places 
to the complexities of modern highway construction and 
regulation and the operation of immense public ser- 
vices. So, accordingly has the power and responsibility 
of the citizen increased. Not only has there been this 
development of the sphere but the widening of the con- 
trolling body has proceeded apace. By the extension of 
the franchise the exercise of these much-spread municipal 
functions has almost changed hands. All this delegated 
power requires the control of some paramount authority. 
It is afforded by the Courts. The authority of the 
Courts in our municipal government can never .safely be 
withdrawn. It is vital to the orderly, as well as to the 
effective, use of the instrumentality of municipal govern- 
ment. For assurance of this lawful possession of the 
representative office reliance is placed on the Courts. 
Likewise there exists the necessary supervising jurisdic- 
tion assuring the observance of legal limitations. 

Statute law on municipal subjects in the Dominion is 
so voluminous and varied that it is impossible to repro- 
duce it or comment on it within reasonable space. There 



iv PEBFACE. 

is a vast body of municipal, jurisprudence to be found in 
our law reports. Much of this is in its principles com- 
mon to all our jurisdictions. Our people are fortunate 
in having been assisted in this ^prominent field of self- 
government by the labors of judges, in many cases, fortu- 
nately, of previous experience in municipal affairs, who 
have given their best to guide the new municipal adven- 
turer or to dispel the dou^bts of the more experienced. 
It is hoped that with a view to bringing the fruits of 
these judicial labors within the reach of interested per- 
sons this volume may be useful. 

The laborious task of reading the final proofs and of 
preparing the Table of Contents, Table of Cases and 
Index was undertaken by Mr. C. M. Colquhoun, Assistant 
City Solicitor, Toronto. 



Winnipeg. 



H. A. E. 
J. B. H. 



TABLE OF CONTENTS 



PAGES 

Preuminaby Sections. A discussion of the nature of muni- 
cipal institutions, principles of interpretation, 
etc 1- 17 

Pabt I. Formation of new corporations and alteration of 
boundaries of municipalities, including special 
notes on the adjustment of assets and liabilities 
upon annexations, etc 18- 47 

Pabt II. Municipal councils — How composed. Qualifica- 
tions and disqualifications for election to muni- 
cipal councils 48- 75 

Part III. Municipal elections — Finality of voters' lists — 
Duties of election oflBcials — ^Validity of ballots, 
etc : . 76-207 

Part IV. Proceedings to declare seat vacant 208- 239 

Pabt V. Bribery and corrupt practices 240- 255 

Pabt VI. Meetings of municipal councils — with full notes 
on the effect of irregularities of procedure by 
councils, etc 256- 286 

Part VII. Boards of Control, composition, duties and 

powers of 287- 295 

Part VIII. Officers of municipal corporations — Duties and 
liabilities of wardens, mayors, clerks, treasurers, 
assessors, auditors, etc 295- 339 

Part IX. General powers relating to all municipalities — 
Municipal jurisdiction — Extent and nature of 
the licensing and regulating power, reasonable- 
ness of municipal action, franchise agreements, 
etc 340- 366 

Part X. Voting on by-laws 367- 402 

Part XI. Quashing by-laws 403- 415 

Part XII. Money by-laws, including a very full treatment 
of the question of the borrowing power of 
municipalities 416- 477 

Pabt XIII. Yearly rates and estimates, with special notes on 

retrospective rates 478- 499 



VI TABLE OF CONTENTS. 

PAGES 

Part XIV. Respecting finances. Municipal debentures, their 

validity, negotiability, etc 500- 537 

Pakt XV. Acquisition of land and compensation — Expro- 
priation — Use of land acquired — Principles of 
valuation — Compensation — Injury to land, etc. . . 538- 568 

Paet XVI. Arbitrations — Procedure in, appeals from, etc. . . 569- 582 

Part XVII. Actions by and against municipal corporations. 
Necessity of contracting under .seal, actions by 
the Attorney-Creneral, ratepayers' actions, etc. . . 583- 594 

Part XVIII. Respecting the administration of justice — the 
principles upon which municipalities perform 
governmental duties — the relation between muni- 
cipalities and police officers — Duties respecting 
court houses and gaols, etc 595- 629 

Part XIX. Polling subdivisions and polling places 630- 634 

Part XX. Powers of municipal corporations — Bonuses and 
the bonusing power with a history of railway 
bonusing — ^Rights of wire companies on high- 
ways^ line fences, offensive trades, municipal 
regulation of building operations, markets and 
market fees — Residential restrictions, hawkers 
and pedlars, transient traders 635- 905 

Part XXI. Highways and bridges — Non-repair of highways 

and municipal liability therefor 906-1056 

Part XXII. Penalties and enforcement of by-laws 1063-1089 

Amendments in 1920. The most recent changes in the law 
giving special powers to Ontario townships ad- 
joining large cities, changing the property quali- 
fications of candidates, etc 109M098 



INDEX TO ABBREVIATIONS 



A.. & E Adolphus and Ellis (English — King's Bench) , 1834-40. 

A.. C Appeal Cases (English Law Reports) . 

A. L. R Alberta Law Reports. 

A. R Appeal Reports (Ontario), 1876-1900. 

Allen Allen (Massachusetts Supreme Court), 1861-7. 

Am. Rep American Reports. 

App. Gas Appeal Cases (English — House of Lords and Privy 

Council), 1865-75. 

Ark. .' Arkansas Supreme Court. 

Atl Atlantic Reporter (American) . 

Atl. Rep Atlantic Reporter. 

B. & Ad Barnewall and Adolphus (English — King's Bench), 

1830-34. 
B. & Aid Barnewall and Alderson (English — King's Bench), 

1817-22. 
B. & 0. Barnewall and Cresswell (English — King's Bench), 

1822-30. 

B. & S Best and Smith (English — Queen's Bench), 1861-70. 

B. C. C Lowndes and Maxwell (English) Bail Court. 

B. C. L. R British Columbia Law Reports. 

B. C. R British Columbia Reports. 

B. W. C. C Butterworth's Workmen's Compensation Cases (Eng- 

lish). 

Beav Beaven (English— Rolls Court), 1838-1866. 

Bing Bingham (English— Common Pleas), 1822-1834. 

Burr Burrows (English — King's Bench) , 1757-1771. 

C. & J Crompton and Jervis (English — Exchequer) , 1830-32. 

C. & P Carrington and Payne (English— Nisi Prius) , 1823-41. 

C. B .Common Bench (English)', 1845-1856. 

C. B. N. S Common Bench, New Series, 1856-1865. 

C. L. Ch Common Law Chamber Reports (Upper Canada), 

1851-52. 

C. L. J Canada Law Journal. 

C. L. J. N. S Canada Law Journal, New Series. 

C. L. R „. Common Law Reports (English), 1853-5. 

C. L. T Canadian Law Times. 

C. L. T. Occ. N. . . Canadian Law Times, Occasional Notes of Cases. 

C. P Upper Canada Common Pleas, 1850-1881. 

C. P. D Common Pleas Division (English Law Reports), 

1875-80. 

Cald Caldecott, Justice of the Peace Cases. 

Can Cr. Cas Canadian Criminal Cases. 

Car. & P Carrington and Payne (English — Nisi Prius). 

Cart Cartwright's Cases on the British North America 

Act. 

Carthew Carthew (English — King's Bench), 1686-1701. 

Cassels' Digest .. .Cassels' Suprem.e Court of Canada Digest. 

Ch Chancery (English Law Reports), 1891. 

Ch. Crs Chancery Chambers Reports (Upper Canada), 1852-71. 

Ch. D .Chancery Division (English Law Reports) , 1875-1890. 

Chit. R Chitty's Reports (English— Bail Court) , 1819-20. 

Colo Colorado. 



viii INDEX TO ABBREVIATIONS. 

Conn Connecticut (Supreme Court of Errors). 

Cowp Cowper (English — King's Bench), 1774-78. 

Cox C. C Cox's Criminal Cases. 

D. L. R Dominion Law Reports (Canadian) . 

DeG., M. & G De Gex, Macnaghten and Gordon (English-Chancery), 

1851-7. 
DeG., J. & S De Gex, Jones and Smith (English— ^Chancery), 

1862-6. 

Douglas Douglas (English — King's Bench) , 1778-84. 

Dowl Dowling's Practice Cases (English— Bail Court), 

1830-40. 

E. & B Ellis and Blackburn (English^Queen's Bench) , 

1852-8. 

E. G Election Cases (Canada) . 

East East's Reports (English — King's Bench), 1801-12. 

Esp Espinasse (English— Nisi Prius), 1793-1807. 

Ex Exchequer (English) , 1849-56. 

Ex. C. R ,.. Exchequer Court Reports (Canadian), 1891. 

Ex. D Exchequer Division (English Law Reports), 1875- 

1880. 
Ex. R Exchequer Reports (English), 1849-1856. 

Fed. Rep Federal Reporter (American). 

Gift Gifford (English— Chancery) , 1857-1865. 

Gr Grant (Upper Canada — Chancery), 1849-1881. 

H. & C Hurlstone and Coltman (English — Exchequer), 

1862-1866. 

H. & N Hurlstone and Norman (English) , 1856-1861. 

H. Bl Henry Blackstone (English), Common Pleas, 1788-96. 

H. L. C House of Lords Cases (English), 1847-1866. 

Hodgins Hodgins' Election Cases (Canadian), 1883. 

Holt N. P Holt, Nisi Prius Cases (English), 1815-17. 

I. R Irish Law Reports. 

I. L. T Irish Law Times. 

Ill Illinois Reports. 

111. App Illinois Appellate Court Reports. 

Ind Indiana Reports. 

Iowa Iowa (Supreme Court) , 1839. 

Ir. C. L. R Irish Common Law Reports, 1866-1878. 

Ir. R. C. L Irish Common Law Reports, 1866-1878. 

J. P Justice of the Peace. 

Jur The Jurist (English), 1837-1854. 

Jur. (N.S.) The Jurist, New Series, 1855-1866. 

K. B King's Bench (English Law Reports), 1891. 

Kan Kansas Supreme Court, 1862. 

Ky Kentucky Reports. 

L. G. R Local Government Reports (English), 1903. 

L. J Canada Law Journal, 1865. 

L. J. C. P Law Journal, Common Pleas Cases (English). 

L. J. Ch Law Journal, Chancery Cases (English). 

L. J. Ch. D Law Journal, Chancery Cases. 

L. J. Ex. Law Journal, Exchequer Cases (English). 

L. J. K. B Law Journal, King's Bench (English. 

L. J. M. C Law Journal, Magistrate's Cases (English). 

L. J. P. C Law Journal, Privy Council (English). 

El. J. Q- B Law Journal, Queen's Bench (English). 



INDEX TO ABBREVIATIONS. IX 

L. R. A. C Law Reports, Appeal Cases (Bnglls'h). 

L. R. C. P Law Reports, Common Pleas (English), 1865-1875. 

L. R. Ch Law Reports, Chancery -(English), 1865-75. 

L. R. Bq Law Reports, Equity Cases (English), 1865-1875. 

L. R. Ex Law Reports, Exchequer Cases, 1865-1875. 

L. R. Ex. D Law Reports, Exchequer Division, 1876-1880. 

L. R. H. L Law Reports, House of Lords Cases (English), 1865- 

1875. 

L. R. Ir Law Reports, Ireland, 1879-1893. 

L. R. Q. B Law Reports, Queen's Bench Cases (English), 1865- 

1875. 

L. T Law Times. 

L. T. (O.S.) Law Times, Old Series. 

L. T. R Law Times Reports (English). 

Lev Levinz's Reports (English — King's Bench), 1660-1697. 

Ld. Ken Lord Kenyon (English — King's Bench) . 

Lord Raym'd Lord Raymond (English — King's Bench), 1694-1734. 

M. & Gr Manning and Granger (English — Common Pleas), 

' 1840-50. 

M. & S Maule and Selwyn (English — King's Bench) , 1813-17. 

M. &W Meeson and Welsby (English — Exchequer), 1836-47. 

M. L. R Manitoba Law Reports. 

M. L. R. Q. B Montreal Law Reports, Queen's Bench. 

M. R V . . .Manitoba Reports. 

Macq Macqueen, House of Lords Cases (Scotch Appeals). 

Mass Massachusetts Supreme Court. 

Me Maine Reports. 

Meg Megone, Company Cases. 

Mich Michigan Supreme Court Reports, 1847. 

Mod Modern Reports (English), 1669-1732. 

Moo. P. C Moore's Privy Council Cases (English), 1886-1861. 

Myl. & C Mylne and Craig (English — Chancery), 1836-1848. 

N. & P Neville and Perry (English — King's Bench). 

N. B. Bq New Brunswick Equity. 

N. B. R New Brunswick Reports. 

N. E North-eastern Reporter. 

N. H New Hampshire Superior Court. 

N. J. Law New Jersey Law. 

N. J. R New Jersey Reports. 

N. S. R Nova Scotia Reports. 

N. W North-western Reporter. 

N. Y New York Reports. 

N. Y. App. Div. . . New York Appellate Division. 
N. Y. S New York -Supplement Reporter. 

O. A. R Ontario Appeal Reports, 1876-1900. 

0. L. R Ontario Law Reports. 

O. R Ontario Reports, 1881-1901.- 

O. S Old Series (Upper Canada), 1834-1844. 

O. W. N .Ontario Weekly Notes. 

O. W. R Ontario Weekly Reporter, 1902-1916. 

Ohio Cir. Ct. Rep..Ohio Circuit Court Reports. 

O'M. & H O'Malley and Hardcastle's Election Cases, 1869-1880. 

Ont. El. Cas Ontario Election Cases, 1884-8. 

P. & D Perry and Davison (English— King's Bench). 

P. R Practice Reports (Ontario), 1851. 

P. R. & D Power. Rodwell and Dew's Election Cases, 1847-56. 

Pa. ^ Pennsylvania Supreme Court Reports. 



X INDEX TO ABBEEVIATIONS. 

Pac. Rep Pacific Reporter (American) . 

Penn. St Pennsylvania State Reports. 

Plowd Plowd«n's . Commentaries. 

Q. B. Queen's Bench (English) . 

Q. B. D Queen's Bench Division (English), 1875-1890. 

Q. R. K. B Quebec Reports, King's Bench. 

Que. K. B Quebec King's Bench. 

Que. L. R Quebec Law Reports. 

Que. Q. B Quebec Queen's Bench. 

Que. R. Q. B Quebec Reports, Queen's Bench. 

Que. S. C Quebec Reports, Superior Court. 

R. de J Revue Critique de Legislation et de Jurisprudence, 

etc. (Quebec), 1871-3. 

R. L Revue Legale (Quebec) . 1869-18,79. 

R. R Revised Reports (English) . 

Rail. & Canal 

Traffic Cas. Railway and Canal Traffic Cases (English). 
Ramsay A. C. ...Ramsay, Appeal Cases (Quebec). 
Russ Russell's Reports (English — Chancery), 1826-9. 

S. C ....Sessions Cases (Scotch). 

S. C. R Supreme Court of Canada. 

S. L. R Saskatchewan Law Reports. 

S. W South-western Reporter (American) . 

Sask. Saskatchewan Law Reports. 

Sask. L. R Saskatchewan Law Reports. 

Sc. L. R Scottish Law Reporter. 

Sid .Siderfin (English— King's Bench), 1657-70. 

So Southern Reporter (American) . 

Sol. Jl Solicitor's Journal. 

Stark Starkie, Nisi Prius (English), 1815-23. 

Str Strange (English — King's Bench) . 

Swanst Swanston (English — Chancery), 1818-19. 

T. R Term Reports (English— King's Bench), 1785-1800. 

T. L. R Times Law Reports (English) . 

Terr. L. R Territories Law Reports (Canadian). 

Texas'. Texas Reports. 

Times L. R Times Law Reports (English). 

U. C. C. P Upper Canada Common Pleas, 1850-81. 

U. C. L. J Upper Canada Law Journal. 

U. C. L. J. N. S. . Upper Canada Law Journal, New Series. 

U. C. Q. B Upper Canada Queen's Bench. 

U- C. R Upper Canada Queen's Bench, 1844-81. 

U. S United States Supreme Court Reports. 

Ves Vesey (English — Chancery), 1789-1817. 

W. C. & I. Rep. . . Workmen's Compensation Reports (English) . 

W. L. R Western Law Reporter. 

W. N Weekly Notes (English) . 

W. R Weekly Reporter' (English) . 

W., W. & H Willpiore, Wollarton and Hodge (English — Queen's 

Bench). 
"W. W. R Western Weekly Reporter (Canadian). 

Wallace (U. S.) 1 Wallace, United States Supreme Court Reports. 
Wash Washington State Reports. 



TABLE OF CASES CITED 



A. 

PAGE 

Ackers, K. v. (1910) , 21 O. L. R. 187 601 

Acton Local Bd., Atty-Gen. v. (1882) , 22 Ch. D. 22 776 

Local Bd., Cowper-Essex v. (1889), 14 A. 0. 153 557, 558 

Local Bd. Hibbert v. (1889) 5 T. L. R. 274 810 

Local Bd., Hunt v. (1908) , 72 J. P. 345 ; 6 L. G. R. 957 586 

Adams and East Whitby, Re (1882) , 2 O. R. 473 1014 

Adamson v. Boyd, R. ex rel., 4 P. R. 204 63, 68, 91, 102 

V. Etobicoke (1892), 22 O. R. 34i 668 

Adolphustown Voters' List, Re (1908) , 17 O. L. R.' 312 79 

Agnew V. Manchester (1902) , 1 O. L. R. 9 786 

Ahuntsic v. City of Montreal (1904), 26 Que. S. C. 291 447 

Aird, Bristol Corpn. v., 1913, A. C. 241 16, 576 

Aitcheson, R. v. (1915) , 9 0. W. N. 65 860 

Akers v. Howard (1886), 16 Q. B. D. 751 ; 55 L. J. Q. B. 273 232 

Mbany, B. V. (1915) , 3 K. B. 716 ; 84 L. J. K. B. 2121 59 

Albermarle and Eastnor, Re (1879), 45 U. C. R. 133; 46 U. C. R. 183. 42 

Alderson, R. v. (1839) , 11 A. & E. 3 223, 226 

Alexander v. Howai-d. (Tp. of) , (1887) , 14 O. R. 22 521 

V. Huntsville (1894) , 24 O. R. 665 36, 341, 642 

Lewis V. (1899) ,24 S. C. R. 551 340 

Alexian v. Oshkosh, 70 N. W. 162 568 > 

Allan, R. ex rel. Telfer v., 1 P. R. 214 64 

Allen, Ellis v. (1914) , 1 Ch. 904 ; 83 L. J. Ch. 590 1028 

Hart T. (1902) , 40 N. S. R. 352 201 

Johnson v. (1895) , 26 O. R. 550 185 

and Napanee, Re (1902) , 4 O. L. R. 582 1043 

V. Tunbridge (1871) , L. R. 6 C. P. 48; 40 L. J. M. C. 197 860 

Allison, R. ex rel. Chambers v., 1 U. C. L. J. N. S. 244 66 

Alliston, Re Ryan and (1910), 21 O. L. R. 582; 22 O. L. R. 200. .80, 

84, 120, 197, 385 

and Trenton, Re (1917) , 28 O. W. R. 341, 579 404 

Almas V. Haldimand (unreported) see 10 O. R. 45 23 

Almonte, Baird and, Re, 41 U. C. R. 415 67, 4O0, 659 

Cunningham v.. In re (1871) , 21 C. P. 459 56 

Giles and. Re (1910) , 21 O. L. R. 362 114, 198, 387 

Alnwick, Re Nichol & (1887), 41 U. C. R. 577 418, 525, 1037 

Altringham, Bozson y. (190S)-, 1 L. G. R. 639; 67 J. P. 397; 72 

L. J. K. B. 271 ; 51 W. R. 337 ; 19 T. L. R. 266 586 

Amalgamated Socy. of Ry. Servants, TafiE Vale Ry. v., 1901 A. C. 

426; 70 L. J. K. B. 905 1085, 1079 

Ambrose, Cox v., 55 J. P. 23 71 

Ameliasburg, BeUeviUe Bridge Co. v. (1907), 10 O. W. B. 988; 15 

O. L. R. 174 10 

Peck and, Re (1888.) , 12 P. R. 664 407 

(1889) , 17 O. R. 54 424, 435 

Amherst v. Read, 40 N. S. R. 154 . . ._, 332, 902 

Amersham Burial Bd., Crowhurst v. (1879), 4 Ex. D. 5 ; 48 L. J. Ex. 

T09 786. 1043 

Amery, Harris v. (1865)', 35 L. J. C. P. 89 887 



XU TABLE OF CASES CITED. 

PAGE 

Amor, Wing v. (1909) , 10 W. L. R. 383 796 

Amos, CaviU v. (1900) , 64 J. P. 309 797 

Ancaster, Smith v. (1896) , 27 O. R. 276 358, 906, 907, 923 

Anderson, Long Point v.. In re (1891) , 18 A. R. 401 398 

V. South Vancouver (1911), 45 S. C. R. 425; 20 W. L. R. 

434; 1 W. W. R. 730 262-268, 479 

V. Toronto (1908), 15 O. L. R. 643; 11 O. W. R. 338 

950, 980, 984 

Andrew, Oakville v. (1905), 10 O. L. R. 709 309 

Andrews v. Ryde (1874) L. R. 9 Ex. 302; 43 L. J. Ex. 174; 23 

W. R. 58 586 

V. Wirral R. C. (1916), 1 K. B. 85S; 85 L. J. K. B. 853. . 817 

Anglin V. Kingston (1857) , 16 U. C. Q. B. 121 521 

Angus and Widdifield, Re (1911) , 24 O. L. R. 318 41, 376 

Applegarth v. Graham, 7 U. C C. P. 171 64 

Archer, Southend-on-Sea v. (1901), 70 L. J. K. B. 328 810 

Arlidge V. Islington (1909) , ,2 K. B. 127 ; 78 L. J. K. B. 553 355 

Armor v. Coste, R. ex rel., 8 U. O. L. J. 290 67 

Armour and Onondaga, Re (1907), 14 O. L.R. 608.135, 369, 390, 410, 1019 
V. Peddie, R. ex rel. (1907), 9 O. W. iR. 393; 14 O. L. R. 

339 169, 193, 220 

Armoury Board, In re, 76 N. Y. S. 766 567 

Armstrong v. Canada Atlantic (1902), 4 O. L. R. 560; 22 C. L. T. 

379 .. . 983 

V. Garratt, R. ex rel. (1907), 14 O. X,. B. 337 97, 98, 192 

Greyson and, Re (1894) , 70 L.. T. 106 577 

James Bay Ry. v. (1909) , A. C. 624 579 

and Toronto, Re (1889), 17 O. R. 766. .341, 369, 422, 423, 

425, 1019 

Arnit v. Whitby U. C. (No. 2) , 101 L. T. 14 911 

Arnold v. Blake, L. R. 6 Q. B. 433 ; 40 L. J. Q. B. 185 909 

Amott V. Marchant, R. ex rel., 2 C- L. Oh. 189 -. 231 

Arnprior v. United States Eidelity Co. (1914), 30 O. L. R. 618; 51 

S. O. R. 94 310 

Arran, Strang y. (1913), 28 O. L. R. Ill 912, 944, 975, 979, 988 

Arthur v. Arthur (1891) , 21 O. R. 60 23, 24 

V. Grand Trunk (1894) , 25 O. R. 37 ; 22 A. B,. 89 689, 784 ^ 

& Meaford, Re (1915) , 34 O. I,. R. 231 410 

Ashburn Recreation Co., Atty.-Gen. v. (1903) , 1 Ch. 101 ; 72 L. J. Ch. 

67 589, 1046, 1062 

Ashbury v. Biche (1875) , L. R. 7 H. U 653; 44 L. J. Ex. 185 351, 670 

Ashlby V. White (1703), 2 Lord' Raymd. 938; 3 Lord Raymd. 320 231 

Ashby's Cobham Brewery Co., Ex. p. (1906), '2 K. B 754- 75 

L. J. K. B. 983 555 

Ashley, Ex parte (1904) , 2 Can. Cr. Cas. 328 783. 

Ashton, Tarry v., 45 L. J. Q. B. 260 968 

Asphodel, Be Birdsall and (1879) , 45 U. C. R. 149 1019 

Asseltine v. Shibley (1905), 9 O. L. R. 327 248 

Assiuiboia, MoLellan v. (1888), 5 JM. R. 127, 265 365 

Associated Portland Cement Mfrs., Tolhurst v. (1903), A. C. 414 642 

Athenaeum Life Ins. Co. v. Pooley, 28 L. J. Ch. 119 475 

Athens H. S. Bd. v. Tp. of Rear of Yonge and EScott, Re (1913), 

29 O. L. R. 260 478, 481, 482, 484, 491 

Atherton, Marfan v. (1866), 35 L. J. Ex. 161 958, 959 

Athy Guardians v. Murphy (1896) , 1 I. R. 65 587 

Atkins V. Kilby (1840) , 11 A. & E. 777 "617 



TABLE OF CASES CITED. XIU, 

PAGE 
Atkinson v. Chatham (1898) 29 O. R. 518; 26 A. R. 521 ; 31 S. 0. R. 

61 . 951, 969, 999 

V. Newcastle, L. R. 6 Ex. 404 232 

(1877). 2 Ex. D. 441 ; 46 L. J. Ex. Ch. 775. 

690, 721, 811, 947 

Attorney-General v. Acton Local Bd. (1882) , 22 Ch. D. 22 776 

V. Ashburn Recreation Co. (1903), 1 Ch. 101; 72 ' 

L. J. Ch. 67 589, 1046, 1062 

V. Batley Corpn., 26 L. T. 392 298 

V. Blackburn Corpn. (1887), 57 L. T. 385 298 

y. Birmingham (1910), 1 Ch. 48; 79 L. J. Ch. 138. 589 

V. Bradford, L. R. 2 Eg. 71 ; 35 L. J. Ch. 619 -1047 

V : Brantford (1858) , 6 Gr. 592 590, 718 

V. Brighton (1900), 1 Ch. 276; 69' L. J. Ch. 204. 

797, 1045 

V. CampbeU (1872) , 19 Gr. 299 . , 808, 812 

V. CardifE Corpn. (1894), 2 Ch. 337; 63 L. J. Ch. 

557 297 

V. Chandos, 74 J. P. 401 910 

V. Cookermouth, L. R. 18 Eq. 176 589 

V. De Winton (1906), 2 Ch. 106; 75 U T. Ch. 612. 

307, 308-309, 482, 497, 590 

V. Garner (1907) , 2 K. B. 480 1043 

V. Gaskill (1882), 22 Ch. D. 537; 52 L. J. Ch. 163; 

47 L. T. 566 ; 31 W. R. 135 586, 587 

V. Goderich (1856), 5 Gr. 402 590, 718, 844 

V. Great Eastern (1879), 5 A. C. 473; 48 L. J. 

' Ch. 445 V 351, 352, 669 

V. Great Northern Ry., 84 L. J. Ch. 793 9S3 

V. Halifax (1903) , 36 N. S. R. 177 594" 

V. Hamilton St. Ry. (1897), 27 O. R. 49; 24 

A. R. 170 590 

V. Hanwell Urban CJI. (1900), 1 Ch. 51; 69 L. J. 

Ch. 626 ' 544-6, 718, 1029 

V. Liverpool (1835), 1 Myl. & C. 171, 210 718 

(1837), 7 L. J. Ch. 51; 2 Myl. & C. 

613 .. . 590 

V. Logan (1891) , 2 Q. B. 100 589 

V. London & S.' W. Ry., 69 J. P. 110; 3 L. G. R. 

1327 ; 21 T. L. R. 220 910, 911 

V. London County Council (1902), A. C. 165; 71 

L. J. Ch. 268 351, 590 

V. Meyrick, 19 J. P. 515 912 

V. Read (1678) , 2 Mod, 299 322 

V. Richmond Corpn., 29 L. T. 700 ; 20 T. L. R. 131. . 911 

V. Scully (1902) , 33 S. C. R. 16 655 

Sharpness v. (1915) , 84 L. J. K. B. 917 933 

V. Shrewsbury, etc., Bridge Co. (1882), 21 Ch. D. 

752 ; 51 L. J. Ch. 746 589 

V. Smith (1910) , 103 L. T. 96 ; 74 J. P. 313 1046 

V. Southampton Corpn. (1859), 29 L. J. Ch. 282.. 547 
St. Mary's Magdelan, College of, v., 6 H. L. C. 187. 589 

V. Toronto (1864) , 10 Gr. 436 591, 716 

(1892) ,■ 23 S. C. R. 514 ■ 349 

(1903) , 6 O. L. R. 159 ; 2 O. W. R. 539 

547-8, 590, 716, 844 
V. Toronto Street Ry. (1868), 14 Gr. 673 590 



XIV TABLE OP CASES CITED. 

PAGE 

Attorney-General v. Tottenham, M. D. C. (1909) , 73 J. P. 437 * 482 

V. Walford R. CI. (1912), 1 Ch. 417; 81 L. J. Oh. 

281 912 

V. West Ham Coppn. (1910) , 2 Ch. 560 482 

V. Wimbledon (1904), 2 Ch. 34; 73 L. J. Ch. 593. 

589, 1046, 1062 

V. Winnipeg Electric Ky (1912), 22 M. R. 761 589 

V. Wright (1897), 2 Q. B. 318; 16 L. J. Q. B. 834. 820' 
Attorney-General of Australia v. Colonial Sugar Refining Co. (1914), 

A. C. 237 339, 512 

Attorney-(Jeneral of Canada v. Attys.-Gen. of Ont., Que. and N. S. 

(1898) A. C. 700; 67 L. J. P. C. 

90 -. 10, 708 

V. Sydney (1914), 49 S. C. R. 148. .300, 301 

Aubertin t. Boulevard St. Paul (1909) . 33 Que. S. C. 289 680 

Aurora, Markham v. (1901) , 3 O. L. R. 609 ; 32 S. C. R. 457. .660, 661, 913 

Scrutiny, Re, 28 O. L. R. 475 89, 174, 383, .397, 398 

Austerberry v. Oldham (1885) , 28 Oh. D. 750 908, 909, 910 

Austin V. Bethnal Green (1874), L. R. 9 C. P. 1; 38 J. P. 248; 43 

L. J. 0. P. 100 ; 29 L. T. 807 ; 22 W. R. 406 586 

Auston, Brigbton v. (1892) , 19 A. R. 305 658 

Ayers v. Windsor (1887) , 14 O. U. 682 1009 

B. 

Balby, R. ex rel. Langdon v., 2 C. L. Ob. 130 . ; 63 

Backhouse v. Bright (1889) , 13 P. R. 117 410 

Bacon, Kansas City v., 57 S. W. 1045 . 568, 569 

Bacup Corpn., Macdonald v. (1911) , 130 L. T. Jo. 344 587 

Baddeley v. GranvUle (1887), 19 Q. B. D. 423; 56 L. J. Q. B. 501. . . 757 

Badgely v. Bender, 3 O. S. 221 907 

Babia and San Francisco, Re, L. R. 3 Q. B. 584 ; 37 L. J. Q. B. 176. 476 

Baine, Bank of Hamilton v. (1888) , 12 P. R. 439 410 

Baines v. Woodstock (1905) , 10 O. L. R. 694 1000 

Baird and Village of Almonte, Re, 41 U. C. R. 415 67, 400, 659 

Baker, National Telephone Co. v. (1893), 2 €h. 186; 62 L. J. Cb. 699. 734 

V. Paris, 10 U. 0. R. 621 889 

Smith V. (1891) , A. 0. 349 ; 60 L. J. Q. B. 691 6 

Baldrey v. .Fenton (1914) , 28 W. L. R. 258 772 

Baldwin v. Chaplin (1915), 8 O. W. N. 349 ; 34 O. L. R. 1 707 

Balfour, Re Green and (1890) , 63 L. T. 93, 325 576 

Ballard, In re Hawk and, 9 0. P. 241 260 

Balzer v. Gosfield (1889), 17 O. R. 70O 924, 90S 

Bangor v. Great Western Ry. (1854) , 5 H. L. C. 89 576 

, Pritchard v. (18S8), 13 A. O. 241; 57 L. J. Q. B 313 

96, 163, 213 

, R. V. (1886), 18 Q. B. D. 349 ; 56 L. J. Q. B. 326 213, 327 

Bank of Commerce v. Toronto Junction (1902) , 3 O. L. R. 311 310 

England v. Vagliano (1891), A. C. 144 ; 60 L. J. Q. B. 145. 6 

Hamilton V. Baine (1888), 12 P. R. 439 410 

Montreal, Stuart v., 41 iS. C. R. at 548 7 

Banks, K. v. (1894) , 1 Can. Or. Cas. 370 1058 

Bann Reservoir, Geddes v. (1878) , 3 A. 0. 430 947," 964 

Bannan v. Toronto (1892), 22 O. R; 274 891, 692 

Bannatyne v. Suiburban (1904) , 15 M. R. 16 1042 

Banton County, Marsh v., 39 N. W. 713 ; 75 Iowa 469 926 

Barber v. Cleave (1901) , 2 O. L. R 213 743, 771 



TABLE OF CASES CITED. XT 

PAGE 

Barber v. Mensch, 15T Pa. 390 774 

V. Penley (1893), 2 Ch. 447, 460; 62 L. J. Ch. 623 830 

, Willmott V. (1880), 15 Ch. D. 96; 49 L. J. Ch. 792 584, 585 

Barclay and Tp. of Darlington, Re (1854), 12 U. C. R.. 86 345 

Barley, Whiteley v., 57 L. J. Q. B. 143 68 

Barmouth, Williams v. (1897) , 77 I;. T. 383 340, 586 

Barnacle v. Clark, 69 L. J. Q. B. 15 71, 72 

Barnard, Loekhart v. (1843) , 14 M. & W. 674 688 

Barnes v. Ward, 9 C. B. 392 : 771 

Barnet, Mansbridge v. (1909) , 73 J. P. 255 586 

Barnett, Grand Trunk v. (1911) , A. C. 361 772 

Barnhart, R. ex rel. Hyde v., 7 L. J. 126 260 

Barns v. St. Mary Islington (1911) , 76 J. P. 11 596 

Baron v. Portslade (1900) , 2 Q. B. 688; 59 L. J. Q. B. 899 954 

Barraclough v. Johnson (1838) , 8 A. & E. 99 909 

Barrie and Diamond Coal Co., Re (1914) , 2 W. L. R. 700 987 

V. Gillies, 21 C. P. 213 1032 

, Hinds V. (1903) , 6 O. L. R. 656 lOOO 

Barrington, Edwards v. (1901) , 85 L. T. 650 548, 540 

Barrow, City Bank v. (1880) , 5 A. C. 664 6 

, Fox v., 84 L. J. K. B. 1327 986 

Bartholomew, K. v. (1908) , 1 K. B. 554 ; 77 L. J. K. B. 275 1050 

Bartliffe v. O'Reilly, R. ex rel., 8 A. R. 617 ,. . 217 

Barto, Seattle v. (1903) , 31 Wash. 141 ; 71 Pac. Rep. 735 433 

Barton, Re Carpenter and' (1887) , 15 O. R. 55 438, 1010, 1013 

v. Hamilton (1891), 18 O. R. 199; 17 A. R. 346; 20 S. 0. R. 

173 • 776. 1035 

(1908)-, 11 O. W. R. 1118, 1131 480, 776 

, Kelly V. (1895), 26 O. E. 608; 22 A. R. 522. .596, 611, 612, 

615, 617, 1059 

Bartram, London West v. (1895) , 26 O. R. 161 307 

Biartruip, Pierce v., Cowp, 269 340 

Bashford, Hamm v. (1916), 33 W. L. R. 473 ; 9 W. W. R. 1044 243 

Basker, Eaton v. (1881), 7 Q. B. D. 529; 45 J. P. 616; 50 L. J. Q. B. 

444 ; 44 L. T. 703 ; 29 W. R. 597 , 586 

Baskerville v. Ottawa (1892) , 20 A. R. 108 571, lOOO 

, Smith V. (1914) , 24 M. R. 349 175, 180, 182, 229 

Bastard, In re Quigley and (1911), 24 O., L. R. 622 115, 138, 

.145, 198, 199, 412 
Bateman v. Mid Wales' Ry. Co. (1866), L. R. 1 C. P, 510; 35 

L. J. C. P. 205 517 

Bateson v. Eddy (1874) , 38 J. P. 598 797 

Bathurst, McLeod t., R. ex rel. (1903) , 5 O. L. R. 573 212 

V. McPherson (1878), L. R. 4 A. C. 256; 48 L. J. P. C. 

61 . 962, 963 

Batley Corpn., Atty.-Gen. v., 26 L. T. 392 298 

Battersea, Papworth v. (No. 2) , (1912) , 1 K. B. 583 958 

Bawkes v. Letherby, R. ex rel. (1908) , 17 O. L. R. 304 100, 193, 

204, 205, 230 

Baxter v. Bedford Corp. (1885) , 1 T. L. R. 424 809 

V. Kerr (1876), 23Gr. 367 286 

V. Irondon Cy. Council, 63 L. T. 167 795 

Bayley v. Manchester (1873), L. K 8 C .P. 148; 42 L. J. C. P. 78. . 998 

Beal V. Exeter (1887) , 20 Q. B. D. 300 ; 57 L. J. Q. B. 128 88 

V. Ford (1877) , 3 C. P. D. 73 ; 47 L. J. C. P. 56 86 

Beamish v. Glenn (1916) , 36 O. L. R. 10 867,868, 873 



XVI TABLE OF CASES CITED. 

Beamsville, Re Robinson and, 8 O. W. R. 689; 9 O. W. R. 273. 

196, 373, 1019 

Beai'd, Carroll v. (1895) , 27 O. R. 849 6 

, Rolls v., R. ex rel., 3 P. R. 357 68, 91 

Bears v. Central Garage Co. (1912), 2 W. W. R. 283; 21 W. L. R. 

252 . . . . 738 

Beauchamp v. Great Western Ry., L. R. 3 Ch. 745 ; 38 L. J. Ch. 833. 911 

Beaumont, Nicol v. (1884) , 53 L. J. Ch. 853 1043 

Beauregard v. Roxton Falls (1904), 24 Que. S. C. 474 659, 663 

Beauvais v. Montreal (1910) , 42 S. C. R. 211 354 

Beaver, Jacobs v. (1908) , 17 O. L. R. at 496 6 

Beaverton, Re Sturmer and, 2 O. W. N. 1227; 19 O. W. R. 430; 24 
O. L. R. 65 ; 25 O. L. R. 190, 567 . .79, 87, 144, 167, 19S, 386, 411, 

413, 633 
Beehuanaland Exploration Co. v. London Trading Bank (1898), 2 

Q. B. 658 519 

Beck, Re Edward (1916), 11 W. W. R. 657; 35 W. L. R. 657 3-39, 512 

V. Sharp, R. ex rel. (1908) , 16 O. L. R. 267 225, 227 

Sharp v., R. ex rel. (1909), 13 O. W. R. 457, 539. .14, 55, 

63, 64, 212, 213 

Becker, De Balquiere v., 8 U. C. C. P. 167 64 

Beckett v. Midland By. (1866) , L. R. 1 C. P. 241 573' 

Beckwith, Carroll v., R. ex rel. (1854), 1 P. R. 276 60, 63, 64 

, Re Salter and (1902), 4 0. L. R. 51. .118, 191, 195, 368, 

375, 412, 633 

Bedford Corp., Baxter v. (1885) , 1 T. Li R. 424 809 

Bedford, Starling v., 94 Iowa 194 ; 62 N. W. 674 988 

Beemer v. Grimsby (1884), 8 O. R. 103; 13 A. R. 225. .1010, 1022, 

1053, 1054 

Beer, R. v. (1903), 2 K. B. 693 ; 72 L. J. K. B. 608 322 

V. Stroud (1888) , 19 O. R. 10 689, 784 

Begg, and Dunwich, Re (1910) , 21 O. L,. R. 94 196, 376 

Belanger v. St. Louis (1912) , 8 D. ' L. R. 601 722 

Belfort Rope Works v. Boyd, 21 L. R. Ch. 560 784 

Bell V. Bridlington (1908), 72 J. P. 453 586 

V. Burlington (1915) , 34 O. L. R. 410, 639 24, 29, 260, 1054 

& Elma, Re (1906) , 13 O. L R. 80 196, 368, 370, 389 

, Essery v. (1909) , 13 O. W. R. 395 10 

, Grayson v., R. ex rel., 1 C. L, J. N. 'S. 130 322 

V. McLean (1862) , 9 Gr. 478 498 

, Pigott v., 25 O. W. R. 265 1022 

, R. v. (1894) , 24 O. R. 274 783 

Bell Telephone €o., Bonn v. (1899) , 30 O. R. 696 732, 999 

T. Chatham (1900) , 31 S. C. R. 61 732 

, Haldimand v. (1912) , 25 O. L. R. 467 767 

V. Owen- Sound (1904), 8 O. L. R. 74 ; 4 O. W. 

R. 69 350, 733, 735, 766, 1023, 1035 

, Toronto v. (1905), 6 O. L. R. 335; 1905 A. C. 

52 ; 74 L. J. P. C. 22 .594, 733, 766 

Belle River, Taylor v. (1909) , 18 O. L. R. 330 906, 1010 

Belleisle v. Hawkesbury (1904) , 8 O. L. R. 694 S48 

Belleville, Bogart v. (1866) , 6 C. P. 425 710 

, Knox and. Re (1913), 5 O. W. 'N. 237 ; 25 O. W. R. 201. 849 

, Phillips V. (1905) , 9 O. L. R. 732 286, 637 

, Simpson v. Local Board of Health of (1917), 41 O. L. R. 

320 329, 330 

, SneU V. (1870) , 30 U. C. K. 81 1059 



TABLE OP CASES CITED. XVll 

FA6E 
Belleville Bridge Co. v. Ameliasburg (1907), 10 O. W. R. 998; 10 

O. L. E. 174 10 

BeUing v. Hamilton (1902) , S O. L. R. 322 846 

Bellringer, R. v. (1792) , 4 T. R. 811 273 

Belmont, R. v., 35 U. C. R. 298 358 

Belmore v. Kent (1901), 1 Ch. 873 ; 70 L. J. Ch. 501 911 

Bender, Badgely v., 3 O. S. 221 907 

Benjamin V. Storr (1874), L. R. 9 C. P. 400; 43 L. J. C. P. 162.991, 1046 

Bennett, Coggins v. (1877) , 2 C. P. D. 568 1049 

, Harding v., R. ex rel., 27 O. R. 314 63, 64, 71, 79, 642 

, R. V. (1882) , 1 O. R. 445 1060 

V. York, 43 U. C. R. 542 923 

Benney, R. v. (1831) , 1 B. & Aid. 684 212 

Bent V. Wakefield (1878) , 4 C. P. D. 1 . .". 688 

Beresford-Hope v. Lady Sandhurst (1889), 23 Q. B. D. 79; 58 L. J. 

Q. B. 318 62, 102 

Bergman, Manning v. (1915) , 32 W. L. R. 519 436, 437 

Berlin and Berlin & W. St. Ry., In re (1907), 19 O. L. R. 57; 42 

S. C. R. 981 361 

Berlin, Schmidt v. (1894)-, 26 O. R. 54 719 

, Waterloo and. Re (1904), 7 O. L. R. 64 ; 8 O. L. R. 335; 

3 O. W. R. 903 446, 775, 1035 

& Waterloo, Judge of, Re (1914), 33 O. L. R. 73. . .337, 338, 339, 607 

, Weber v. (1904) , 8 O. L. R. 302 695 

Berthiaume, R. ex rel. Sa'bourin v. (1913), 4 O. W. N. 1201; 24 

O. W. R. 559 ; 11 D. L. R. 68 90 

Bertie, Smith v. Tp. of (1913), 28 O. L. R. 330 1.063, 1064, 1078 

Bertrand v. Canadian Rubber Co. (1897) , 12 M. R. 27 201 

Bethnai Green, Austin v. (1874), L. R. 9 C. P. 91; 38 J. P 248; 

43 L. J. C. P. 100 ; 29 L. T. 807 ; 22 W. R. 406 586 

Beveridge v. Creelman (1877) , 42 U. C. R. 29 1009 

Bickford and Chatham, Re (1887), 14 A. R. 32 ; 16 S. C. R. 235. .426, 

670, 671 

Biggar v. Crowlaud (1906) , 13 O. L. R. 164 996, 1060 

Biggs V. Mitchell (1862) , 2 B. & S. 523 740 

Bigler, Burden v. (1911) , 1 K. B. 337 ; 80 L. J. K. B. 100 830 

Billericay, Lamprell v. (1849) , 3 Ex. 283 ; 18 L. J. Ex. 282 586 

, Lawford v. (1903), 1 K. B. 772 ; 72 L. J. K. B. 554. .330, 

585, 586 
Billings and Canadian Northern Ry. (1913), 29 O. L. R. 608; 31 

O. L. R. 329 555, 556. 566 

, Chauncey v., R. ex rel., 12 P. R. 404 217 

Binbrook and Yonge, Re (1899), 31 0. R. 108 194, 197 

Bingley U. C, Dawson v. (1911), 2 K. B. 149; 80 L. J. K. B. 842. . 722 

Bird V. Holbrook, 4 Bing. 667 ' 771 

, Jones v., 5 B. & Aid. 845; 24 R. R. 585 977 

Birdsall and Asphodel, Re (1879) 45 U. C. R. 149 1019 

Birely v. Toronto H. & B. Ry., 25 A. R. 88 913 

Birkett, R. ex rel. McGuire v., 21 O. R. 162 70, 102 

Birmingham, Atty.-Gen. v. (1910), 1 Ch. 48; 79 L. J. Ch. 138 589 

, R. v., L. R. 2 Q. B. 47 933 

Bishop Auckland, Whitfield v., Times, November 22nd, 1897 690 

Bisonnette, Hay v. (1910), 14 O. W. R. 279; 17 O. W. R. 321. .... . 913 

Black V. Campbell, R. ex rel. (1909) , 18 O. L. R. 269. .84, 118, 120, 193, 220 

V. Orillia (-1913), 5 O. W. N. 67 661 

Blackburn Corpn., Atty.-Gen. v. (1887), 57 L. T. 385i '..... 298 

, Paterson v. (1892) , 9 Times L. B. 55 1001 

M.A. — ^B 



XVlll TABLE OJF CASES CITED. 

PAGE 

Blackie v. Staples, 13 Gr. 67 - 902 

Blaine, Edmonds v. (1887) , 56 L. J. Ch. D. 815 517 

Blaker, Arnold v., L. R. 6 Q. B. 433 ; 40 L. J. Q. B. 185 909 

Blanchard, Re Dale and (1910), 21 O. L. R. 497 ; 23 O. L. R. 69. .15, 

83, 381, 382 
Bland v. Buchanan (1901) , 2 K. B. 75 ; 70 L. J. K. B. 466. . .260, 261, 271 

V. Figg, R. ex rel., 6 L. J. 44 71 

BlasMU V. Chambers (1884) , 53 L. T. 38 ; 14 Q. B. D. 479 349 

Blenheim, Re (1910) , 5 O. W. R. 186 672, 681 

Blind River, In re L'Ahbe and Corporation of (1904), 7 O. L. R. 230; 

30 O. W. R. 162 66, 239, 271, 279, 400 

Bliss, Ely V. (1852), 2 DeG., M. & G. 459 7 

V. Lilly (1862) , 3 B. & S. 128 740 

Block Iron Brewery, Gery v. (1891), 55 J. P. 711 810 

Bloomfield v. Starland (1915) , 31 W. L. R. 573 1020 

Bodmin Election Case, 1 O'M. & H. 122 244 

Bogart V. BelleviUe (1866) , 6 O. P. 425 710 

V. King (1901) , 1 O. L. R. 496 430, 485, 678 

Boles, Re Kennedy and (1905) , 6 O. W. R. 837 365 

Bolton V. Everett (1911) , 105 L. T. 830 830 

V. Lambert (1889) , 42 Ch. D. 295 587 

V. Wentworth, Re (1911) , 23 O. L. R. 394 ; 18 O. W. R. 795, 

2 O. W. N. 827 330 

Bonanza Nickel Co., Sheppard v. (1894), 25 O. R. 305 352 

Bond V. Coiimee (1889) , 16 A. R. 398 975 

, R. V. (1906) , 2 K. B. 389 ; 75 L. J. K. B. 693 245 

V. St. George's' (1870), L. R. 6 C. P. 312; 40 L. J. C. P. 47.. 86 

Bondeaux, Menard v. (1908) , 34 Que. S. C. 335 443 

Bonn V. Bell Telephone Co., (1899), 30 O. R. 696 732, 999 

Booth, R. ex rel. Brine v. (1883), 9 P. R. 452; 3 O. R. 147.. 66, 68, 212 

Borst V. iSharon, 24 N. Y. App. Div. 599 ' 987 

Boss V. Litton (1832) 5 C. & P. 407 1011 

Boswell and Toronto, Pells v. (1885) , 8 O. R. 680 350 

T. Yarmouth (1879) , 4 A. R. 353 948, 1033 

Boulevard St. Paul, Aubertin v. (1909) , 33 Que. S. C. 289 680 

Boulton V. Peterborough (1859) , 16 U. C. R. 380 368 

Bourdeaux v. Coquard, 47 111. App. 254 517 

Bourke, Sydney v. (1894) , 64 L. J. P. C. 144 '. 963 

Bourne v. Marylebone D. C. (1909), W. N. 14; 72 J. P. 306; 24 

T. L. R. 613 ; 6 L. G. R. 1141 586 

Bournesmouth v. Watts (1884), 14 Q. B. D. 87; 49 J. P. 102; 54 

L. J. Q. B. 93 ; 51 L. T. 823 ; 33 W. R. 280 585 

Boutilier, Smith v. (1907) , 42 N. S. R. 1 745 

Boving, Crowley v. (1915) , 33 O. L. R. 491 579 

Boweu, Byrnes v., 8 U. C. R. 181 .' 908 

Bowes V. Toronto (1858), 11 Moo. P. C. 463 286, 323, 324, 637 

Bowmanville, In re Brodie and (1876) , 3S U. C. R. 580 345 

Boyce, Jones v., 1 Starkie 495 : 772 

V. Paddington (1903), 1 Ch. 109; 72 L. J. Ch. 28, 685 589, 590 

V. Porter, R. ex rel. (1915) , 33 O. L. R. 575 216, 217 

Boyd, Adamson v., R. ex rel., 4 P. R. 204 63, 68, 91, 102 

, Belfort Rope Works v.. 21 L. R. Ch. 560 784 

V. Great Northern (1885) , 2 I. R. 555 .- 992 

, R. V. (1889) , 18 O. R. 485 900 

, V. Toronto (1911) 23 O. L. R. 425 947 

Boyes v. Detlor, R. ex rel. (1868) , 4 P. R. 195 67, 305 



TABLE OF CASES CITED. XIX 

PAGE 
Bozson V. Altringham (1903), 1 L. G. B. 639 ; 67 J. P. 397 ; 72 L. J. 

K. B. 271 ; 51 W. R. 337 ; ]9 T. L. R. 266 586 

Bracebridge, McNiroy v. (1905) , 10 O. L. E. 360 949 

Bradburn, R. ex rel. Harris v. (1876) , 6 P. R. 308 114 

Braden, Meriden t. (1896) , 17 P. R. 77 329 

Bradfield Union, Nicholson v. (1866) , L. R. 1 Q. B. 620 ; 30 J. P. 549 ; 

35 L. J. Q. B. 176; 14 L. T. 830; 13 W. B. 731 586 

Bradford, Atty.-Gen. v., L. R. 2 Eq. 71 ; 35 L. J. Oh. 619 1047 

Election Case (1869) , 1 O'M. & H. 66 245, 246 

, Irwin V. (1872), 22 C. P. 18, 421 923 

, Slee V. (1863) 4 Gi£f. 262 817 

Bradford-on-Avon, R. v. (1908) , 99 L. T. 89 305 

Bradley v. Coickfield R. D. C. (1895) , 64 L. J. Q. B. 571 . , 793 

, Garnett v. (1878) , 3 App. Oas. 944 15 

Bradshaw, R. v., 14 Cox C. C. 83 781 

Brampton, Re WUliamg and (1908) , 17 O. L. iR. 398. .22, 23, 882, 1003, 1075 
Brand, Hammersmith v. (1869), L. R. 4 H. L. 171; 38 L. J. Q. B. 

265 5, 227, 566, 760, 947 

Brandon, Curie v. (1905) , 15 M. R. 122 ; 24 C. L. T. 279 ; 1 W. L. R. 

76 979, 987 

, Dominion Express Co. v. (1909) , 19 M. R. 257 485 

Election, Re (1911), 20 M. R. 705 118, 181, 191, 254 

, Wishart v. (1887) , 4 M. R. 453 596 

Brandon Gas Co., Stinton v. (1912) , 5 B. W. C. C. 426 985 

Brant, Re Keeling and (1911) , 25 O. L. R. 181 ^ 23 

and Waterloo, Re (1860), 19 U. C. R. 457 943 

Brantford, Atty.-Gen. v. (1858) , 6 Gr. 592 590, 718 

, Hanley v. (1910) , 16 O. W. R. 812 1017 

. MacKenzie v. (1884), 4 O. R. 382 756 

, McGill V. License Commrs. of (1892) , 21 O. R. 665 899, 900 

, Waterous v., 2 O. W. R. 897 ; 4 O. W. R. 355 %8 

Brantford Golf Club and Lake Erie & N. Ry., Re (1914), 32 O. L. 

R. 141 551-3 

Brecken, Jenkins v. (1883) , 7 S. C. R. 247 178 

Brennan v. Hamilton (1917) , 39 O. L. B. 367 17 

Bretts, R. ex rel. Hill v., 4 P. R. 113 69 

Brewer and Toronto, Re (1909) , 19 O. L. R. 411 411 

Bridge, R. v. (1813) , 1 M. & S. 76 102 

Bridgeport v. New York & N. H. Ry., 36 Conn. 255, 262 448 

Bridlington, Bell v.' (1908) , 72 J. P. 453 586 

Brierley, Pearsall v. (1883), 11 Q. B. D. 735; (1884) 9 A. C. 595 . . 574 

Brighouse, New Westminster v. (1892), 20 S. C. R. 520 571, 947 

Bright, Re Backhouse v. (1889) , 13 P. B. 117 410 

Brighton, Atty.-Gen. v. (1900) , 1 Ch. 276 ; 69 L. J. Ch. 204 797, 1045 

V. Auston (1892) , 19 A. E. 305 658 

, Heath v. (1908) , 98 L. T. 718 ; 24'T. L. R. 414 758 

Brine v. Booth, B. ex rel. (1883), .9 P. E. 452 ; 3 O. R. 147 66, 68, 212 

Southampton v.. In re (1904) , 8 O. L. R. 106, 664 23 

Bristol V. Aird (1913), A. C. 241 . . . .'. 16, 677 

V. Fiat Motors (1910), 2 K. B. 831; 79 L.J. K. B. 1109; 

MaxweU 41 6 

Tramways, West v. (1908), 2 K. B. 14; 77 L. J. K. B. 684. 

761, 963, 964 

Bristow V. Cornwall (1875) , 36 U. C. R. 225 514 

British Canadian Securities v. Victoria (1911), 11 B. C. B. 441; 

19 W. L. R. 242 851 

Columbia Electric v. Stewart (1913) , 14 D. L. B. 8 769 



XX TABLE OP CASES CITED. 

PAGE 

British India, &c., Co. v. Comrs. of Inland Revenue (1881), 7 Q. B. 

D. 165 516 

Linen Bank, Edinburgh Corpn. v. (1913), A. O. 133; 82 L. 

J. P. C. 25 536 

Museum v. Finnis, 5 Car. & P. 460 910 

Nation Life Assce. Assn., Ex parte, 8 Ch. D. 679 1034 

Westingliouse El. Co., Hancock v. (1910), 3 B. W. C. C. 210. 987 

Britton Ferry, Nicholls v. (1915) , 8 B. W. C. C. 42 987 

Brock V. Muttlebury (1911) , 45 S. C. R. 271 1013 

V. Rohson (1914) , 25 M. R. 64 -. . .23, 415 

V. Toronto & N. Ry. (1870) , 17 Gr. 425 522, 672 

(1873) , 37 U. O. R. 372 1032 

Brockman, Folkstone Corpn. v. (1914), A C. 338; 83 L. J. K. B. 745. 911 

Brockville, Molsons Bank v., 31 C. P. 174 306 

Rink, Tomkins v. (1900) , 81 O. R. 124 780, 808, 811 

Brodie and Town of Bowmanville, In re (1876), 38 U. C. R. 580 345 

■ Brohm v. Somerville (1906), 11 O. L. R. 588 862 

Bromley Corpn., Davis v. (1908), 1 K. B. 170; 77 L. J. K. B. 51 

348, 349, 795 

Bronson and Ottawa, Re (1882) , 1 O. R. 415 544, 546 

Brooke, Hogg v. (1904) , 7 O. L. R. 273 861, 874, 946 

, Warwick v. (1901) , 2 O. L. R. 433 474 

Brooks, Clatborne v., Ill U. S. 400 517 

V. Torquay (1902), 1 K. B. 601 ; 66 J. P. 293 ; 71 L. J. K. B. 

109 ; 85 L. T. 785 586 

Broomfield, R. ex rel. O'Donnell v., 5 O. L. R. 596 68., 91, 103 

Brophy and Gananoque, Re (1876), 26 U. C. C. P. 290 191, 375, 1019 

Brown v. Bushey (1894) , 25 O. R. 616 1052 

V. Edmonton (1894) , 23 S. C. R. 308 909, 1050 

v. Forest, 62 Atl. Rep. 1078 568 

V. Hamilton (1902) , 4 O. L. R. 249 , 1060 

, Hardwick v. (1873) , L. R. 8 C. P. 406 201, i203, 204 

, Holmes v. (1908) , 18 M. R. 48 297, 796 

, Jolly V. (1914) , 2 K. B. 120 .' 979 

, Mather v. (1875), 1 C. P. D. 596; 45 L. J. C. P. 547 103 

& Owen Sound, Re (1907) , 14 O. L. R. 627 561, 566, 1020 

V. Regina (1914) , 29 W. L. R. 537 698 

, Rochford v. (1911) , 25 O. L. R. 206 286 

V. Toronto (1910) ,'21 O. L. R. 230 958 

& Toronto, Re (1916) , 86 O. L. R. 189 851 

V. Toronto General Hospital (1893) , 23 O. R 599 702 

, Upton V. (1912) , 3 W. W. R. 626 .' 726, 727 

, Wheat V. (1892) , 1 Q. B. 418 ; 61 L. J. M. C. 94 750 

Bruce, Ross v., 21 C. P. 41, 548 581 

, Young V. (1911) 24 O. L. R. 546 978 

Brunker v. Mariposa (1892) , 22 O. R. 120 370 

Brussels v. Ronald (1885) , 4 O. R. 1 ; 11 A. R. 605 658 

Bryant and Tp. of Pitts'burg, Re (1855), 13 U. C. R. 347 458 

Bryoe and Toronto, In re (1913) , 5 0. W. N. 9 ; 25 O. W. R. 67 15 

Buccleuch v. Metropolitan Bd. of Works (1872), L. R. 5 H L 418; 

41 L. J. Ex. 137 '. .40, 558, 579 

Buchanan. Bland v. (1901), 2 K. B. 75; 70 L. J. K. B. 466. .260, 261, 271 

, R. v., 8 Q. B. 883 184 

. Watterworth v., R. ex rel. (1897), 28 O. R. 352 . .163, 178, 190 

Bupke v. New Liskeard (1909) , 1 O. W. N. 123 ; 14 O. W R. 841 768 

Bugg v. Smith, R. ex rel., 1 C. L. J. 129 69 

Buist V. McCorabe (1882) , 8 A. R. 600 774 



TABLE OF CASES CITED. XXI 

PAGE 

Bull, Shoreditch v., 90 L. T. 210 956 

Bunbury, N. Vancouver Ferry & Power Co. v. (1911), 17 W. L. K. 

450 ; 16 B. C. R. 170 704-5 

Burah, R. v. (1878) , 3 A. C. 889 897 

Burbidge, Cox v. (1863), 13 C. B. N. S. 430; 32 L. J. C. P. 89. . . .771, 914 

Burden v. Bigler (1911) , 1 K. B. 337 ; 80 L. J. K. B. 100 830 

Burford, re Chambers and (1894) , 25 O. B. 276 1010 

, Daniels v. (1852) , 10 U. C. R. 478 900 

Burger, Gulf v., 45 S. W. 613 567 

Burleigh t. Campbell, 18 C. P. 467 1032 

V. Hales (1864) , 27 U. C. R. 72 1032 

Burlington, Bell v. (1915), 34 O. L. R. 410, 619 24, 29, 260, 1054 

Burnett and Durham, Re (1900) , 31 O. R. 262 571 

Bnrnham, R. ex rel. v. Hagerman, 31 O. R. 636 63, 220 

« R. ex rel. v. Sharpe, 31 O. R. 636 64 

Burrage, Carshalton U. C. v. (1911) , 2 Ch. 133; 80 L. J. Ch. 500 1033 

Bury, Be Gifford and (1888) , 20 Q. B. D. 368 ; 57 L. J. Q. B. 181 ... . 572 

, Lancashire v. (1888) , 14 A. C. 417 ; 57 L. J. Q. B. 85 921, 990 

Bushey, Brown v. (1894), 25 O. R. 616 1052 

Bushnell T. Hammond (1904) , 73 K J. K. B. 1105 975 

Butler, Marson v., R. ex rel. (1897) , 17 P. R. 382 226 

, R. V. (1892) , 22 O. R. 462 900 

V. Toronto (1907) , 10 O. W. R. 878 598 

Byrnes v. Bowen, 8 U. C. R. 181 908 

C. 

Cadman, Horner v. (1886) , 55 L. J. M. C. 110 830, 1050 

Caesar v. Cartwright (1854) , 12 U. 0. R. 341 900 

Calder v. Pilling, 14 M. & W. 76 1031 

Caldwell, Re Gait and (1898) , 30 O. R. 378 341, 418, 424 

(1900), 27 A. R. 162 » 1046, 1062 

(1905), 10 O. L..R. 619 277, 410 

, Kenny v. (1894) , 21 A. R. 110 ; 24 S. C. K. 699 907 

Caledon, Ward v. (1892), 19 A. R. 69 1000 

Caledonia, McCuUOch t. (1898) , 25 A. R. 417 594 

, Re McKinnon and (1873) , 33 U. C. R. 502 413 

Caledonian, Re (1912) , 22 O. W. R. 916 919 

Caledonian By. Co. v. Ogilvy, 2 Maeq. 229 559 

V. Walker's Trustees, 7 A. C. 259 :559, 560 

Calgary, Speaktnan v. (1908), 1 A. L. R. 454 ; 9 W. L. R. 264.330, 331, 714 

, Stephens v. (1909), 12 W. L. R. 379 330 

, Taprell v. (1913) , 3 W. W. R. 987 ; 23 W. L. R. 498 ; 5 A. L. 

R. 377 ; 10 D. L. R. 656 : 432, 433, 434 

Calloway v. Pearson (1890) , 6 M. R. 364 202 

Cambridge, Canada Atlantic v. (1883) , 3 O. R. 291 672 

, 11 O. R. 392 ; 12 A. R. 234 ; 12 S. C. 

R. 365 671 

, (1887), 14 A. R. 299; 15 iS. C. R. 

219 386, 400, 402, 426 

V. Sutherland (1914) , 6 W. W. R. 1219 6 

Cambridge University, R. v., 1 Str. 559 816 

Cameron and East Nissouri, Re (1856), 13 U. C. Q. B. 190 475 

V. Wait (1878) , 3 A. B. 175 1053, 1054 

Campbell, Atty.-Gen. ^. (1872), 19 Gr. 299 808, 812 

, Black v., R. ex rel. (1909), 18 O. L. R. 269.84, 118, 120, 193, 220 
, Burleigh v., 18 C. P. 457 1032 



XXll TABLE OF CASES CITED. 

PAGE 

Campbell v. Irwin (1914), 32 O. L. R.. 48 566 

& Kingston, Re (1864) , 14 C. P. 285 .' 710 

and Lanark, In re (1893) , 20 A. R. 372 639, 673 

. Squire v. (1836) , 6 L. J. Cli. 41 1043 

& Stratford, Re (1907) , 14 O. L. R. 184 881, 890, 891 

, St. John V. (1895), 26 S. C. R. 1 i 953 

, Tolmie v., R. ex rel. (1902), 4 O. L. R. 25. . . .126, 145, 192, 212 

Campbellford, Laidlaw and. Re (1913) , 31 O. L. R. 209 569 

& Maine, Re (1914) , 50 S. C. R. 409 569 

, Mitchell and. Re (1908), 16 O. L. R. 578 81, 381, 386 

Oampbellford, Lake Ont. & Western Ry., Re Clarkson and (1916), 35 

O. L. R. 345 579 

Campion, R. v. (1890) , 55 J. P. 21 ; 1 Sid. 14 331 

Canada Atlantic, Armstrong v. (1902), 4 O. L. R. 560; 22 C. L. T. 

379 983 

& Camlbridge, Re (1883) , 3 O. R. 291 672 

V. Cambridge, 11 O. R. 392 ; 12 A. R. 234 ; 12 S. C. 

R. 365 671 

, (1887), 14 A. R. 299; 15 S. C. R. 

219 386, 400, 402, 426 

, Gloucester v., 3 O. L. R. 91 ; 22 C. L. T. 63. .907, 1048 
V. Ottawa (1885), 8 O. R. 201; 12 A. R. 234; 12 

S. C. R. 365 365, 368, 400, 641, 671 

Canada, Atty.-Gen, of v. Attys.-Gen. of Ont, Que. & N.S. (1898), A.C. 

700; 67 L. J. P. C. 90 10 

Canada Central, Pembroke v. (1882) , 3 O. R. 503 1047 

Canada Company, Guelph v. (1853) , 4 Gr. 632 718 

V. Middlesex (1852) , 10 U. C. Q. B. 73 418, 434 

Canada Furniture Co. v. Stephenson (1910) , 19 M. R. 631 6 

Southern Ry., Windsor v. (1893) , 20 A. R. 388 36, 44, 643 

Temperance Act, Re, 9 O. R. 154 173 

I and County of Kent, In re (1884), Cassels' 

Digest 106 , 23 

Canadian Agency v. Tanner (1913), 6 Sask. 161 24, 461, 463, 464, 467 

Aluminum Works, Chambly v. (1909), 35 Que. S. C. 517 . . 643 
Electric Lighting Co. v. Tanguay (1906), 2§ Que. S'. C. 157. 707 
Niagara Power Co. v. Stamford (1914), 30 O. L. R. 384; 

50 S. C. R. 168 454, 655-6 

Canadian Norfliern Ry., Billings and. Re (1913)' 29 O- L. R. 608 566 

(1914), 31 O. L. R. 229 ... 555-6 
, Green and, Re, 30 W. L. R. 572 ; 22 D. L. 

R. 15 571 

, Holditch V. (1916) , 1 A. C. 536 557, 567 

, Ketcheson v., 29 O. L. R. 339 571 

V. Moore (1916) , 31 D. L.-R. 456 578 

, Parks V. (1911) , 21 M. R. 103 747 

, Pettit v., 23 M. R. 223 6 

Canadian Pacific Ry. v. Carlton Place (1908), 12 O. W. R. 567 653 

, Carruthers y. (1906) , 16 M. R. 323 ; 39 S. C. 

R. 251 ; 4 W. L. R. 441 747 

V. Chatham (1895) , 22 A. R. 330 481 

, Cornwallis v., 7 M. R. 1 ; 19 S. C. R. 702 36, 485 

V. Falls Power Co. (1907), 10 O. W. R. 1125. . 768 

, Forsythe v. (1905) , 10 O. L. R. 78 952 

, Giovinazzo v. (1908) , 19 O. L. R. 325 ; 13 O. W. 

R. 1200 985, 9g7 

, Higgins V. (1908) , 18 O. L. R. 12 747 



- TABLE OF CASES CITED. XXUl 

PAGE 

Canadian Pacific Ry., Jones v. (1913) , 30 O. L. R. 347 ; 83 L. J. P. C: 

13 1055 

V. (The) King (1907) , 39 S. O. R. 476 ....... . 826 

, Louise v., 14 M. R. 6 1032 

, Moggy V. (1886) , 3 M. R. 209 990 

V. Notre Damte de Bonsecourg (1899), A. C. 367. 

■ 784, 788, 826 
V, Parke (1899) , A. C. 535 ; 68 L. J. P. C. 89.698, 760 

, R. V. (1914) , 33 O. L. R. 248 825, 826 

V. Roy (1902), A. C. 220; 71 L. J. P. C. 51 760 

, Thomas v. (1906) , 14 0. L. R. 55 613 

V, Toronto (1902), 1 O. W. R. 255 797, 811 

, Windebank t. (1915) , 25 D. L. R. 225 579 

V, Winnipeg (1900), 12 M. L. R. 581; 30 S. C. 

R, 558 454, 651 

, Winnipeg School Trustees v. (1885), 2 M. L. 

R. 163 454 

, Wood V. (1899) , 30 g. C. R. 110 788 

Canadian Rubber Co., Bertrand v. (1897) , 12 M. R. 27 201 

CanniCE, Forsyth v. (1800) , 20 O. R. 478 595, 752 

Cannon v. Toronto Corn Exchange, 27 Gr. 23 ; 5 A. R. 268 282, 453 

Canterbury, Hilcoat v. Archbishop of, 10 C. B. 327 566 

, R. V. (1903) , 1 K. B. 289 330 

Cantin, Ouelette v. (1911) , 40 Que. S. C. 92 260 

Cape Town, Eastern & S. A. Telegraph Co. v. (1902), A. C. 881; 

71 L. J. P. C. 122 734 

Carden, Gilchrisit v. (1876,) , 26 U. C. C. P. 1 1060 

Cardiff, Atty.-Gen. v. (1894) , 2 Ch. 337 ; 63 L. J. Ch. 557 297 

, Harding v. (1882) , 2 O.- R. 329 1009, 1016 

Cardinal, Re DUlon and (1905) , 10 O. L. R. 371 108, 146, J.95 

Carey v. Kansas, 85 Southwestean 438 720 

, Smith V. (1903) , 5 O. L. R. 207 185, 248 

V. Toronto (1885) , 11 A. R. 416 ; 14 S. O. R. 172 913 

Carleton, Re Cummings and (1894) , 26 O. R. 1 571, 921, 936 

, Fitzroy v. (1910) , 9 D. L. R. 686 939-941, 943 

and Ottawa, Re (1897), 24 A. R. 409 ; 27 S. C. R. 606 .622, 623 

Carleton Place, Canadian Pacific Ry. v. (1908) , 12 O. W. R. 567 653 

Carleton Woolen Co. v. Woodstock (1905), 26 C. L. T. 316; 3 N. B. 

Eq. 188 659 

Carley, Holmes v., 31 N. Y. 289 • 1025 

Carlile, R. v. (1832) , 6 C. & P. 686 830 

Carlisle, R. v. (1719) , 1 Str. 385 453 

Carlyle v. Oxford (1914) , 30 O. L. R, 413 329 

Carman, Re Fisher and (1905) , 1 W. L. B. 455 ; 16 M. R. 560 345 

Carol!, Re IngersoU and (1882) , 1 O. R. 488 1085 

Carpenter and Barton, Re (1887) , 15 O. B. 55 488, 1010, 1013 

Carr v. Cuthbert, R. ex rel. (1901) , 1 O. L. B. 212 5, 227 

, Lewis v., L. R. 1 Ex. D. 484 66, 70 

T. North Bay (1913) , 28 O. L. R. 628 23, 120, 634 

Carroll v. Beard (1895) , 27 O. R. 849 6 

V. Beckwith, R. ex rel. (1854) , 1 P. R. 276: 60, 63, 64 

, Furlong v. (1882) , 7 A. R. 145 748 

, State v., 38 Conn. 499 ; 9 Am. Rep. 409 260 

Carruthers v. Canadian Pacific Ry. (1906), 16 M. R. 323; 39 S. C. R. 

251 ; 4 W. L. R. 441 747 

Carshalton U. C. v. Burrage (1911), 2 Ch. 133 ; 80 L. J. Ch. 500 .... 1033 



XXIV TABLE OF CASES CITED. 

PAGE 
Carter, Clapp v., 7 B. W. C. C. 28"; 1914, W. C. & I. Rep. 80 ; 110 L. 

T. 491 ; 58 Sol. Jl. 232 985, 986 

V. Thomas (189a) , 1 Q. B. 673 ; 62 L. J. M. C. 104 803, 804 

Cartwright, Caesar v. (1854) , 12 U. C. R. 341 900 

& Napanee, Re (1905), 11 O. L. R. 69.... 194, 195, 196, 

372, 373, 406, 412, 1019 

(1906) , 8 O. W. R. 65 407 

(1910), 1 O. W. N. 502 495 

Cartwright Public School v. Cartwright Tp. (1903), 5 O. L. U. 699. . . 1047 

Carus-Wilson and Greene, Re, 18 Q. B. D. 7 ; 55 L. T. 864 569 

Carwardine, Williams v. (1833) , 4 B. & Ad. 621 688 

Case V. Storey (1868) , L. B. 4 Ex. 319 860 

C^sey, R. v. (1914) , L. R. 2 Ir. 243 103 

Caste. R. ex rel. Armour v., 8 L. J. 290 67 

Castor V. Uxbridge (1876) , 39 U. C. R. 113 945 

Cavanagh v. Smith, R. ex rel. (1895) , 26 O. R. 632 500 

Cavers v. Kelly, R. ex rel. (1906), 7 O. W. R. 280, 600. . . .97, 193, 220, 326 

CavUl V. Amos (1900) , 64 J. P. 309 797 

Cedar Rapids V. Lacoste (1914), A. G. 569; 83 L. J. P. C. 163, 553, 563, 578 

Central Canada L. & S. Co., Patterson v. (1898) , 29 O. R. 134 787 

Central Garage Co., Bears v. (1912), 2 W. W. R. 283; 21 W. L. R. 

252 738 

Central Vermont Ry. v. St. John (1887) , 14 S. C. R. 288 485 

Centre Wellington Election, In re, 44 U. C. R. 132 173 

Chadwick v. Toronto (1914) , 32 O. L. R. Ill 761 

Chamberlain v. King (1871) , L. R. 6 C. P. 474 617 

Chambers v. Allison, R. ex rel., 1 U. C. L. J. N. S. 244 66 

, Blashill V. (1884) , 53 L. T. 38 ; 14 Q. B. D. 479 349 

& Burford, Re (1894) , 25 O. B. 276 1010 

, , Clark V. (1873) 3 Q. B. D. 327 1000 

V. Winchester (1907) , 15 O. Li»R. 316 336, 337 

Chambly v. Canadian Aluminum Works (1909), 35 Que. S. C. 517 643 

Chandos, Atty.-Gen. v., 74 J. P. 401 910 

Chapman v. Rand, 11 S. C. R. 312 173, 398 

Chaplin, Baldwin v. (1915), 8 O. W. N. 349 ; 34 O. L, R. 1 707 

V. Woodstock (1889), 16 O. R. 728 201, 203, 239 

Chappell, Piper v. (1845), 14 M. & W. 624 1059 

Oharing Cross v. London Hydraulic Power Co. (1914) ,3KB 772 ; 

83 L. J. K. B. 1352 761 

Charlesworth, Harper v., 4 B. & C. 574 912 

Charlevoix Election Case (1877) , 1 S. C. R. 222 251 

Charlton, Coverdale v. (1878), 4 Q. B. D. 104; 47 L. J. Q. B. 446. .916, 918 
, Ludlow V. (1840), 6 M. & W. 815; 10 L. J. Ex. 75; 4 Jur. 

657 586 

, O'Reilly v., R. ex rel., 10 U. C. L. J. N. S. 105 217, 218 

Chatham, Atkinson v. (1898), 29 O. R. 518; 26 A. R. 521; 31 S. C. 

R. 61 , ggi 959 999 

, Bell Telephone Co. v. (1900), 81 S. C. R. 61 ....... . .!...' 732 

, Bickford and. Re (1887), 14 A. R. 32; 16 S C. R. 235. 

426, 670, 671 

, C. P. Ry. V. Township of (1895) , 22 A. R. 330 '. . . 481 

I , Karry and, Re (1910) , 20 O. L. R. 178 ; 21 O. L. R. 566. 

749,889, 890 
, Pang Sing v. (1909), 14 O. W. R. 1161; 16 O. W. R. 338. 850 

, Simmons v., 21 U. C. R. 75 408 

, Woodforde v. (1904) , 37 N. B. R. 21 !!!!.!!!!.!!.! 613 

Chauncey v. Billings, R. ex rel., 12 P. R. 404 217 



TABLE OF CASES CITED. XXV 

- PAGE 

Chesley, Re Schumacher and (1910), 17 O. W. R. 174; 21 O. L. R. 

522. .85, 89, 128, 133, 144, 145, 197, 

306, 368, 378, 386 

, ( unreported) , 85 

Chester Corpn., R. v. (1856) , 35 L. T. ; 25 L. J. Q. B. 61 238, 322 

Chesterfield Gas & Water Bd., In re Lucas and (1909), 1 K. B. 16. 

553, 563-5, 566 

Chew, Leyton v. (1907), 2 K. B. 283 ; 76 L. J. K. B. 781 349, 354, 355 

Chicago, Martin v., 77 N. E. 86 568 

, Schuster v., 52 N. E. 855 568 

, SnoufEer v., 75 N. W. 501 568 

, West Chicago v., 50 N. B. 185 568 

Chicago and North-West Granaries, Re (1898), 1 Ch. 263; 67 L. J. 

Ch. 109 537 

Child, R. V. (1830) , 4 C. & P. 442 300 

, Tozer v., 26 L. J. Q. B. 151 231 

Ohilliwack, McKenzie v. (1912), A. C. 886; 82 L. J. P. C. 22.613, 627, 1080 

Ching V. Surrey Cy. CI. (1909) , 78 L. J. K. B. 927 597 

Chinnock v. Hartley Whitney R. C, 63 J. P. 327 910, 911 

Chippenham, Dummer v., 14 Ves.- 245 331 

Chisholm, R. v. (1907) , 14 O. L. R. 178 1059 

Chorley, D. C, Smith v. (1897) , 1 Q. B. 678 795, 796 

Ohorley Water Works, Mayor of Liverpool v. (1852), 2 DeG., M. & G. 

852 717 

Christie and Toronto Junction, Re (1895), 22 A. R. 21; 25 S. C. R. 

551 40, 571, 576 

Church V. Imperial Gas Light Co. (1838) , 6 A. & E. 846 ; 3 N. & P. 35 ; 

1 W. W. & H. 137; 7 L. J. Q. B. 118 586 

, Sullivan v., R. ex rel. (1914), 26 O. W. R. 375; 6 O. W. N. 

116, 365 12, 23, 54, 55, 212, 213 

Cirencester Election Case (1893) , 4 O'M. & H. 194 156 

Citizens, Williams v. (1883) , 4 Ark. 290 23 

Citizens' Life v. Lepitre (1898) , 29 S. C. R. 1 966 

City Bank v. Barrow (1880) , 5 A. C. 664 6 

City & iSouth London Ry. and St. Mary Woolno>th, Re (1903), 2 K. B. 

728 ; 1905, A. C. 1 ; 72 L. J. K. B. 936 ; 74 L. J. K. B. 147 566 

Clancy v. Conway, R. ex rel. (1881) , 46 U. C. R. 85 68, 322 

V. Mcintosh, R. ex rel. (1881) , 46 U. C. R. 98 63, 91, 215 

V. St. Jean C1881) , 46 U. C. R. 77 215, 258, 322 

Clapp V. Carter, 7 B. W. C. C. 28 ; 1914, W. C. & I. Rep. 80 ; 101 L. T. 

491 ; 58 Sol. Jl. 232 985, 986 

Clare Cy. CI., O'Donnell v. (1913) , 47 I. L. T. 41 997 

Claridge v. Evelyn (1821), 5 B. & Aid. 81 102 

Clark, Barnacle v., 69 L. J. Q. B. 15 71, 72 

Clark V. Chambers (1873) , 3 Q. B. D. 327 1000 

& Howard (Tp. of). Re (1889), 16 A. R. 72 521 

V. McMullen, R. ex rel., 9 U. C. R. 467 216 

, Mogg V. (1885) , 16 Q. B. D. 79 479 

, South Dumfries v. (1909) , 14 O. W. R. 158 1032 

V. Stanford (1871) , L. R. 6 Q. B. 35 ; 70 L. J. M. C. 151 860 

Clarke v. Ouckfield Union (1852), 21 L. J. Q. B. 349; 16 J. P. 257; 

16 Jur. 686 ; 1 B. C. C. 81 586 

, Maxwell v. (1879), 4 A. R. 460 '. 951, 969 

V. Palmerston (1883) , 6 O. R. 616 426, 479, 484, 485 

, Pothard v. (1879) , 5 C. P. D. 253 ; 49 L. J. C. P. 474 95 

Clarkson and Campbellford L. O. & W. Ry. (1916), 35 O. L. R. 345. . 579 
Clatborne v. Brooks, 111 U. S. 400 518 



XXVI TABLE OP CASES CITED. 

PAGE 

Cleary and Nepean, In re (1907), 14 O. L. R. 392 81 

Cleave, Barber v. (1901), 2 O. L. R. 213 743, 771 

Clementson v. Mason, L. R. 10 C. P. 209 180 

demons v. St. Andrews (1896) , 11 M. R. Ill 573 

Clergue, Perry v. (1903) , 5 O. L. R. 357 ; 2 0. W. R. 89 703 

OllfEord V. Hoare, L. R. 9 C. P. 362 ; 43 L. J. C. P. 225 912 

Climie, Roberts v. (1881) , 46 U. G. R. 264 358 

Clinton, Lister v. (1909) , 18 O. L. R. 197 1017, 1053, 1054 

, Wilkie V. (1871) , IS Gr. 557 426, 479, 492, 499, 500 

Cloutier, In re (1896) , 11 M. R. 226 756 

, R. V. (1898) , 12 M. R. 183 ; 2 Can. Cr. Cas. 43 847 

Goats V. He'refordshire Cy. CI (1909), 2 Ch. 579; 78 L. J. Ch. 568, 

781 911 / 

Cobalt, Temiscaming Tel. Co. v. (1918) , 42 O. £ . R. 385. 359 

Cobden, De Sousa v. (1891) , 1 Q. B. D. 687 ; 60 L. J. Q. B. 33 63 

Cobourg, Crawford v. (1861) , 21 U. C. R. 113 521 

, Northumberland and, In re (1860) ,-20 U. C. R. 283 41 

Cochrane v. Commonwealth, 56 N. E. 610 ; 175 Mass. 299 567 

, Re Therriault and (1914), 30 O. L. R. 367 481, 485, 488 

Cockermouth, Atty.-Gen. v., L. R. 18 Eq. 176 589 

Cocks V. Wagner (1894) , 70 L. T. 403 797 

Coe and Pickering, Re (1865) , 24 U. C. R. 439 375, 1019 

Coed Talon Colliery Co., Hughes v. (1909), 2 B. W. C. C. 159 987 

Ooggins V. Bennett (1877) , 2 C. P. D. 568 .■ 1049 

Cogswell, O'Brien v. (1890) , 17 iS. C. R. 424 479, 788 

Cohen, Webster v. (1913) , 6 B. W. C. C. 92 ; 108 L. T. 197 ; 29 T. L. 

R. 217 986 

Coleman, Gri*nt, R. ex rel. (1882), 8 P. R. 497; 7 A. R. 624. 

215, 216, 218, 228, 233 

V. O'Hare, R. ex rel., 2 P. R. 18 71, 72, 102, 215 

Coleridge, R. v.,. 2 B. & Aid. 806 757 

Collingwood, Rowland v. (1908) , 16 O. L. R. 272 ; 11 O. W. R. 804.345, 355 

Collins v. Cooper (1893) , 9 T. L. R. 250 ; 68 L. T. 450 882 

V. Middle Level Comrs. (1869) , L. R. 4 C. P. 279 1001 

, R. V. (1876) , 2 Q. B. D. 30 ; 46 L. J. Q. B. 257 232 

Colonial Bank of Australasia v. William (1874), L. R. 5 P. C 417; 43 

L. J. P. C. 39 398 

Colonial Sugar Refining Co., Atty.-Gen. of Australia v. (1914), A. C. 

237 339, 512 

Colquhoun v. DriscoU (1894) , 10 M. R. 254 480 

V. FuUerton (1913) , 28 O. L. R 102 952 

. Orr-Ewing v. (1877) , 2 A. C. 852 784 

Columbia, Hays v. (1912) , 141 S. W. 3 ' 948 

Commerce. Bank of v. Toronto Junction (1902) , 3 O. L. R. 311 310 

Commercial Rubber Co. v. St. Jerome (1908), A. C. 444; 17 Q. R. K. 

B. 244 643 

Commissioners of I. R., British India, &c., Co. v. (1881), 7 Q. B D. 

165 516 

V. Glasgow & S. W. Ry. (1887), 12 A. C. 315; 

56 L. J. P. C. 82 555 

, Rothchild v. (1894) , 2 Q. B. 145 6 

Commissioners for Railways, O'Rourke v. (1890) , 15 A. C. 371 . . 579 

Commonwealth, Cochrane v., 56 N. E. 610 ; 175 Mass. 299 567 

Compagnie de Mayville v. Whitley (1896), 1 Ch. 788; 65 L. J. Ch. 

729 ; . . ■. .281, 282 

Companies Act, Ex parte Watson, Re (1888), 21 Q. B. D. 301 481 

Oompton, Eastern Tps. Bank v. (1871) , 7 R. L. 446 521 



TABLE OF CASES CITED. XXVll 

PAGE 

Coney, R. v. (1881) , 8 Q. B. D. 534 ; 51 L. J. M. C. 66 781 

Confederation Life v. Howard (1894), 25 O. E. 197 475, 476, 521 

Conliss V. North, People ex rel, (1878) , 72 N. Y. 124 194 

Conmee, Bond v. (1889) , 16 A. R. 398 975 

Connecticut Mutual, St. Louis v., 17 S. W. R. 637 780 

Connor v. Middagh (1889) . 16 A. R. 356 401, 592, 593, 1017 

Consumers' Gas Co., Toronto v. (1897) , 27 S. C. R. 453 698 

, (1903) , 5 O. L. R. 495 594 

1 (1914)^32 O. L. R. 21, (1916) 2 A. C. 

618 698 

Conway, Clancy, v. R. ex rel., 46 U. C. R. 85 68, 322 

, Jones V. (1893) , 2 Ch. 603 ; 62 L. T. Ch. 767 '... 803 

Cook, Jamieson v., R. ex rel., 9 O. L. R. 466 68 

V. Tait (1904) , 26 O. R. 403 743 

- , Vespra v. (1876) , 26 C. P. 182 999 

Cooke, Freeman v., 2 Ex. Rep. 654 476 

V. Medland (1909) , A. C. 229 ; 78 L. J. P. C. 76 959 

& Norwich, Re (1889) , 18 O. R. 72 423 

, R. V. (1912) , 27 O. L. R. 406 630 

V. Seaforth Corpn. (1871), L. R. 10 Eq. 678; L. R. 6 Ch. 551. 586 

Cooper, Collins v. (1883) , 9 T. L. R. 250 ; 68 L. T. 450 882 

, Godfrey v. (1920) , 46 O. L. R. 565 962 

V. Slade (1856), 27 L. J. Q. B. 449 246 

V. Wandsworth D. Bd. of Works (1864), 14 C. B. N. S. 180; 

32 L. J. C. P. 185 815, 816 

V. Wooley (1867) . L. R. 2 Ex. 88 ; 36 L. T. M. C. 27 827 

doote, Mclntyre v. (1909) , 19 O. L. R. 9 ; 13 O. W. R. 1098 952 

Copeland, Haynes v. (1865) , 18 C. P. 150, 167 358 

Copp, R. V. (1888) , 17 O. R. 742 796, 814 

Coquard, Bourdeaux v., 47 111. App. 254 517 

V. Oquawke, 192 111. 355 - 517 

Corbett v. JuU, R. ex rel. (1869) . 5 P. R. 41 96, 231 

V. Taylor (1864) , 23 TJ. C. R. 454 498 

Cornfoot v. Royal Exchange (1904) , 1 K. B. 40 980 

Cornwall, Bristow v. (1875) , 36 U. C. R. 225 513 

, Durochie v. (1893), 23 O. R. 355; 21 A. R. 279; 24 S. C. 

R. 301 : 949 

, McLean and, Re (1871) , 31 U. C. R. 314 297, 497, 902 

T. West Nissouri (1875) , 25 U. €. C. P. 9 687 

, Williams v. (1900) , 32 O. R. 255 11, 551 

Cornwallis v. Canadian Pacific Ry., 7 M. R. 1 ; 19 S. C. R. 702 36, 485 

Corrie v. MacDermott (1914), A. C. 1056; 83 L. J. P. C. 370 553 

Corry, Davis v., 154 Penn. St. 598 949 

Corsellis v. London Cy. Ol. (1908), 1 Ch. 13 ; 77 L. J. Ch. 120 . .912, 1029 

Cory, Kennard v. (1892), 2 Q. B: 578 ; 67 L. J. Q. B. 809 .349 

Cotterill v. Lempriere (1890), 24 Q. B. D. 634 ; 59 L. J. M. C. 133. . . 759 

, Newington L. B. v. (1879) , 12 Ch. D. 725 ;-48 L. J. Ch. 226. 776 

Cottingham, R. ex rel. Ford v., 1 TJ. C. L. J. N. S. 214 66 

Cottman V. Morrison (1914) , 7 B. W. C. C. 194 987 

Coulter, Flett v. (1903) , 5 O. L. R. 375 771 

, McFarlane v., R. ex rel. (1902) , 4 O. L. R. 520 216, 224 

Coupland v. Webster, R. ex rel., 6 L. J. 89 -. 231 

Cousins, R. v. (1873) , L. R. 8 Q. B. 216 ; 42 L. J. Q. B. 124 215 

Coverdale v. Charlton (1878), 4 Q. B. D. 104; 47 L. J. Q. B. 446. .916, 918 

Cowan, Stephenson v. (1914), 25 M. R. 67 23, 415 

Cowley V. Newmarket (1892), A. C. 345 ; 63 L. J. Q. B. 65. .947, 953, 1011 

Cowper-Essex v. Acton Local Bd. (1888), 14 A. C. 153 557, 558 



XXVlll TABLE OJF CASES CITED. 

PAGE 

Cox V. Ambrose, 55 J. P. 23 71 

V. Burbridge (1863) , 13 C. B. N. S. 430 771 

, 32 L. J. C. P. 8S 914 

, Mitcham Common v. (1911) , 80 L. J. K. B. 1188 ; 104 L. T. 824. 345 

V. Truscott, 69 J. P. 174 69 

Coxworth and Hensall, Re (1908) , 17 O. L. K. 431 368 

Crabbe and Swan River, Re (1913) , 23 M. L. R. 14 ; 22 W. L. R. 860 ; 

23 W. L. B. 373 345, 354 

Crafter v. Metropolitan (1866), L. R. 1 C. P. 300; 35 L. J. C. P. 132. 

948, 950 

Crane v. Lawrence (1890) 25 Q. B. D. 152 ; 59 L. J. M. C. 110 750 

Cranston, Sklitzsky v. (1892) , 22 O. R. 107 912 

Crawford v. Cobourg (1861) , 21 U. C. R. 113 521 

V. St. Jobn, 34 N. B. R. 560 310 

Creaser v. Creaser (1907) , 41 N. S. R. 480 748 

Credit Fonder, Crouch v. (1873) , L. R. 8 Q. B. 381 519 

Credit VaUey By., ^St. Thomas v. (1885) , 12 A. R. 273 671 

(1888), 15 O. R. 673 672 

Crediton IT. D. C, Hill v. (1898) |78 L. T. 351 ; 80 L. T. 861 492 

Creelman, Beveridge v. (1877), 42 U. C. R. 29 1009 

Crichmore, Theobald v. (1818) , 1 B. & Aid. 227 617 

Crissey, People ex rel. Woods v. (1883) , 91 N. X. 617 194 

Croft V. Peterborough (1856) , 5 C. P. 35, 141 947, 1009 

Cromwell v. Sac. Cy. (1877), 96 U. S. 51 520 

Crook V. Seaford (1871), L. R. 6 Ch. 551; 25 L. T. 1; 19 W. R. 938. 

585, 587 

Crouch V. Credit Poncier (1873) , L. R. 8 Q. B. 381 519 

Crow, Oxford v. (1893), 3 Ch. 535; 69 L. T. 228; 42 W. B. 200 ; 8 

R. R. 279 587 

Crowder v. Tinkler, 19 Ves. 617 735 

Crowe V. Steeper (1881) , 46 U. C. R. 80 743, 771 

Crowhurst v. Amersham Burial Bd. (1879), 4 Ex. D. 5 ; 48 L. J. Ex. 

109 786, 1043 

Crowland, Biggar v. (1906) , 13 0. L. R. 164 996, 1060 

Crowley v. Boving & Co. (1915) , 33 O. L. R. 491 579 

Crown Tailoring Co. v. Toronto, 33 O. Xj. R. 92 Note 355 

Croyden v. Croyden (1908), 2 Ch. 321 ; 77 L. J. Ch. 800. .438, 479, 482, 493 

V. Postmaster-General (1910), 8 L. G. R. 1105 734, 768 

Crozier v. Taylor, R. ex rel., 6 L. J. 60 68 

Crump, Jordin v., 8 M. & W. 782 „ 772 

V. Lambert (1867), L. R. 3 Eq. 409; 15 L. T. 600; 17 L. T. 

133 827 

Cubitt V. Maxse (1873) , L. R. 8 C. P. 704 ; 42 L. J. C. P. 278 908 

Ouckfield R. D. C, Bradley v. (1895) , 64 L. J. Q. B. 571 793 

Cuckfield Union, Clarke v. (1852), 21 L. J. Q. B. 349; 16 J. P 257; 

16 Jur. 686 , 5S6 

CuUen V. Morris, 2 Stark. 577 231 

Cummings and Carleton, Re (1894) , 26 O. R. 1 571, 921, 936 

V. Dundas (1905) , 10 O L. R. 300 ; 6 O. W. R. 160 946 

(1907), 13 O. L. R. 384 944, 946 

, Vancouver v. (1912), 46 S. C. R. 457 , 947, 949 

Cunard v. The King, 43 S. C. R. 88 553, 566 

Cunningham v. Almonte, In re (1871) , 21 C. P. 459 ' 36 

V. Rober, People ex rel., 35 N. Y. 629 642 

Curie V. Brandon (1905), 15 M. R. 122; 24 C. L. T. 279; 1 W. L. R. 

■^6 '. . .979, 987 

Curtia v. Embrey (1872), L. R. 7 Ex. 369 ; 42 L. J. M. C. 39 797 



TABLE OF CASES CITED. XXIX 

PAGE 

Curtis V. Kesteven (1890), 45 Ch. D. 504 1043 

Ousac, R. ex rel. Kegis v. (1876) , 6 P. R. 303 212, 411 

Cuthbert, R. ex rel. Can- v. (1901) , 1 0. L. R. 212 5, 227 

Dale and Blanchard, Re (1910), 21 O. L. R. 497; 23 O. L. R. 69. 

15, 83, 381, 382 

, North Staffordshire v. 21 L. J. M. C. 147 990 

Dalgleish v. Garkide (1914) , 7 B. W. C. C. 535 987 

Dalhousie, Hawkeshaw v., 7 U. C. R. 590 626 

Dalllng, Winslow v., 1 N. B. Eq. 615 908 

Dalsen, R. ex rel. Forsyth v., 7 L. J. 71 71 

Daly, In re,- 45 N. Y. S. 785 567 

76 N. Z. S. 28 568 

Dalziel V. Grand Trunk (1876) , 6 P. R. 305 85 

V. Zastre (1910), "19 M. R. 353 745, 774 

Daniels v. Burford (1852) , 10 U. C. R. 478 900 

Darby v. Toronto (1869) , 17 O. R. 554 641, 699 

Darley, Smyth v. (1849) , 2 H. L. C. 789 453 

Darlington, Barclay and Tp. of. Re (1854) , 12 U. C. R. 86 345 

, Lax V. Mayor of (1897) , 5 Ex. D. 28 700 

Dartford Union v. Trickeitt (1883), 53 J. P. 277; 59 L. T. 754 ; 5 

T. L. R. 619 587 

Dauphin Dominion Election, Re (1911) , 19 W. L. R. 451 172, 173 

Davenport, Lancashire, &c., Ry. v., 4 L. G. R. 425 ; 70 J. P. 129 910 

Davidson, England v. (1840) , 11 A. & E. 856 688 

and Waterloo, In re (1864) . 24 U. C. R. 66 . . . .-. 319 

Davies v. Toronto (1877) , 15 O. R. 33 699 

Davis V. Bromley Corpn. (1908), 1 K. B. 170; 77 L. J. K. B. 51. 

348, 349, 795 

V. Corry, 154 Penn. St. 598 949 

V. Kensington (1874) , L R. 9 C. P. 723 ; 43 L. J. C. P. 370 .. . 93 

V. North Western, 48, N. E. 1058 ; 170 111. 595 567 

, R. V. (1875) , 24 0. P. 575 918 

, Stock v., R. ex rel., 3 L. J. 128 64, 71 

& Toronto, Re (1891) , 21 O. R. 243 544 

V. Winnipeg (1914), 24 M. R. 483 ; 28 W. L. R. 634 298, 903 

Dawes v. Hawkins, 8 C. B. (N. S.) 848 909, 911 

, R. v., 4 Burr. 2277 226 

Dawson v. Bingley Urban CI. (1911) , 2 K. B. 149 ; 80 L. J. K. B. 842. 722 

Day, Wilkins v., 12 Q. B. D. llO 952 

De Balquiere v. Becker, 8 U, C. C. P. 167 64 

De Lisle, R. ex rel. MoMullen v., 8 L. J. 291 67 

De Prato v. Pattick (1907) , A. C. 153 ; 96 L. T. 398 889 

De Sonas v. Cobden (1891), 1 Q. B. D. 687 ; 60 L. J. Q. B. 33 63 

De Winton, Atty.-Gen. v. {1906), 2 Ch. 106; 75 L. T. Ch. 612. .307, 

308-9, 482, 497, 590 

Dedham, Kingsbury v., 13 Allen 186 951 

Dee, Wenlock v. (1885) , 10 A. C. 354 670 

(1888), 38 Ch. D. 534 ; 57 L. J. Ch. 946. . . .24, 366, 

439, 481, 482 

Deighton, B. v. (1844) , 5 Q. B. 896 95 

Delaplante, Toronto v. (1913), 25 O. W. R. 16 ; 5 O. W. N. 69 869 

Delta Corpn., Wilson v. (1913) , A. C. 181 529 

Demers, R. v. (1900), A. C. 103 ; 69 L. J. P. C. 5 292 

Denison and Wright, Re (1909) , 19 O. L. R. 5 35, 1013 



XKX TABLE OF CASES CITED. 

PAGE 

Denne and Peterborough, Re (1886) , 10 O. R. 767 650 

Dennett, Friend v. (1858), 4 C. B. (N. S) 576; 23 J. P. 56; 27 L. J. 

C. P. 314 ; 4 Jur. (N. S.) 897 585 

Denver v. Spence, 82 Pac. Rep. 590 ; 34 Colo. 270 720 

Derby, Harrington v. (1905) , 1 Cli. 206 ; 74 L. J. Ch. 230 970, 971 

& Soutli Plantagenet, Re (1890) , 19 O. R. 51 1065 

, Winterbottom v. (1867), L. R. 2 Ex. 316; 36 L. J. Ex. 194. 

909, 991 

Derinzy v. Ottawa (1887) , 15 A. R. 712 690 

Detlor, R. ex rel. Boyes v. (1868) , 4 P. R. 195 67, 305 

, R. ex rel. Forward v. (1868), 4 P. R. 198 103, 222 

Deitroit, Holtham v., 98 N. W. 754 988 

, Lindley v., 90 N. W. 665 989 

V. Park Commissioners (1884) , 44 Mich. 602 444 

, Renackowsky v., 122 Mich. 613 ; 81 N. W. 581 989 

Devitt and O^orne, Re (1911) , 18 W. L. R. 662 407, 408 

Devlin v. Devlin (1871) , 3 Ch. Chrs. 491 410 

& HamUton, Re (1875) , 40 U. C. Q. B. 160 566 

Devon, R. v. (1825) , 4 B..& C. 670 933 

, Russell V. Men of, 2 T. R. 667 953 

Devonport, Thomas v. (1900) , 1 Q. B. 16 ; 69 L. J. Q. B. 51 318 

V. Tozer (1903), 1 Ch. 759 ; 72 L J. Ch. 411 589, 1046, 1062 

Devonshire, R. v., 1 B. & C. 611 273 

Dewar and East Williams, Re (1905), 10 O. L. R. 463 277, 278, 

400, 410, 641 

, R. ex rel. Thornton v. (1895) , 56 O. R. 512 191, 227, 244 

Dexter v. Gowan, R. ex rel., 1 P. R. 104 64, 102 

Diamond, Fraser v. (1905) , 10 O. L. R. 93 912 

Diamond Coal Co., Re Barrie and (1914), 2 W. L. R. 700 987 

Dibbins V. Dibbins (1896) , 2 Ch. 348 ; 65 L. J. Ch. 724 ; 75 L. T. 137 ; 

44 W. R. 595 587 

Dick V. Vaughan (1917) , 39 O. L. R. 187 944 

Dickenson. McDonald v. (1897) , 24 A. R. 31 . . .' 952, 996 

Dickie V. Gordon (1905), 39 N. S. R. 311 743, 744, 745, 756 

Dickinson v. Forsyth (1904) , 90 L. T. 30 817 

Dickson v. Reuter's (1877) , 2 C. P. D. 62 ; 3 C. P. D. 1 ; 47 L. J. C. 

P. 1 683 

Dillon and Cardinal, Re (1905) , 10 O. L. R. 371 108, 146, 195 

v. McNeil, R. ex rel. (1855) , 5 C. P. 137 135 

Dimes v. Grand Junction Canal Co. (1852), 3 H. L. C. 759 72, 600 

Dinner, Humberstone v. (1897), 2 Terr. L. R. 106; 26 S. 0. R. 252. . 703 
Dihnick v. McCallum (1912), 26 O. L. R. 551; 28 O. L. R. 52. . .354, 854-6 

Dionne v. Grantham (1914) , ,46 Que. S. C 3*49 487 

Dirks, Siemens v. (1913) , 23 M. R. 581 469 

Dixon V. London (1876) , 1 A. C. 632 ; 46 L. J. Q. B. 617 997 

Dodd, Foster v. (1877) , 3 Q. B. 77 757 

Dodge V. Smith (1901), 1 O. L. R. 46 970 

Doe V. Hadden, 3 Douglas 310 331 

Domestic Telegraph Co. v. Newark (1887) , 49 N. J. Law 334, 346 359 

Dominion Bank, Mutchenbacker v. (1911), 21 M. R. 320 448, 499 

Dominion Express Co. v. Brandon (1909) , 19 M. R. 257 485 

Dominion of Canada Guarantee, Johnston v. (1908), 17 O L. R. 462; 

11 O. W. R. 363 ; 12 O. W. R. 980 987 

Douglas V. Fox, 31 U. C. C P. 140 1042 

v. Rhyl (1913) , 2 Ch. 407 ; 82 L. J. Ch. 537 585, 5S6, 587 

Dovaston v. Payne, 2 H. Bl. 527 ; 3 R. R. 497 913 

Dowling, Mayor of Dublin v. (1880) , 6 L. R. Ir. 502 555 

Down Election Case (1888) , 3 O'M. & H. 123 252 



TABLE OF CASES CITED. XXXI 

PAGE 

Dowsley, R. v. (1890) , 19 O. R. 622 1058 

Doyife V. Falconer, 33 L. J. P. 0. 33 273 

, Mykel v. (1880) , 45 tJ C. R. 65 713 

Drennan, Kingston v. (1897), 23 A. R. 406; 27 S. C. R. 46 780, 

950, 971, 981, 984 
Dresden (Town of), McGlogWon v. (1909), 1 O. W. N. 74. . . .452, 453, 454 

Dresden Public School Bd., Erb v. (1909), 18 O. L. R. 295 588, 589 

Driscoll, Colquhoun v. (1894), 10 M. R. 254 480 

, Ex parte (1889) , 27 N. B. R. 216 599 

Drogheda Election Case (1874), 2 O'M. & H. 201 108, 109, 115 

Drysdale, Watt v. (1907) , 17 M. R. 15 349, 352, 774 

Dublin (Mayor of) v. Dowling (1880) , 6 L. R. Ir. 502 555 

Duck, Mytton v. (1866) , 26 U. C. R. 61 912, 917 

Dudderidge v. Rawlings (1913) , 108 L. T. 802 830 

Dudley v. North Hampton St. Ry. (1909), 202 Mass. 443; 89 N. E. 

25 961 

Dugas V. MoFarlane (1911) , 18 W. L. R. 701 480 

Dummer v. Chippenham, 14 Ves. 245 • 831 

Dumoulin, Laugtry v. (1885) , 11 A. R. 649 ; 13 S. C. R. 258 ' 413 

Duncan and Midland, Re (1907), 16 O. L. R. 132 105, 109, 

134, 136, 138, 140, 167, 196, 369, 400, 410, 633, 1019 

Dundas, Cummingg v. (1905) , 10 O. L. R. 300 ; 6 O. W. R. 169 946 

(1907) , 13 O. L. R. 384 944, 946 

, Re Pirie and (1869) , 29 U. C. R. 401 649 

Dundas Ebctric Co., )Sutton v. (1908) , 17 O. L. R. 556 965 

Dungey, R. v. (1901) , 2 O. L. R. 223 ; 5 Can. Cr. Cas. 38 750 

Dunlop v. York (1869) , 16 Gr. 216 912 

Dunn T. Holt (1904), 73 L. J. K. B. 341 830, 1050 

Dunwich, Re Begg and (1910) , 21 O. L. R. 94 196, 376 

, Stalker v. (1888) , 15 O. R. 342 1060 

Dupuis, Re (1908) , 17 M. R. 416 ; 7 W. L. R. 699 763 

Durant, Keighley v. (1901), A. C. 240; 70 L. J. K. B. 662 722 

Durham, Re Burnett and (1900) , 31 O. R. 262 571 

, Re McGrath and (1908) , 17 O. L. R. 514 81. 128, 381, 

382 393 398 405 

Durocher, R. v. (1913) , 28 O. L. R. 499 127, 163, 184, 'l085 

Durochie v. Cornwall (1893), 23 O. R. 355 ; 21 A. R. 279 ; 24 S. C. R. 

301 . 949 

Dutton, Sellars v. (1904) , 7 0. L. R. 646 1064 

Dwyer v. Ottawa (1898) , 25 A. R. 121 . , 274 

Dyte V. St. Pancras (1872) , 36 J. P. 375 ; 27 L. T. 342 586 

E. 

Earl v.-Reid (1910), 21 O. L. R. 545 779 

East Brandywine v. Ranck, 78 Pa. 454 568 

Clare Election Case (1892) , 4 O'M. & H. 162 113 

Durham Case, 1 Ont. El. Cas. 493 84 

Elamborough, Foley v. (1898) , 29 O. R. 139 .946, 951 

. Re Harper and (1914), 32 O. L. R. 490 461, 464 

Gwillimbury v. King (1910) , 20 O. L. R. 510 330, 1010 

Ham, Wood v.-(1907), 71 J. P. 128 332, 586 

Hawkesbury, In re Vashon and, 30 C. P. 194 67, 1020 

Mark Tyching. R. v., 11 Q. B. 877 ; 17 L. J. Q. B. 117 908, 909 

Newark, Rehill v., 63 Atl. 83 1025 

Nissouri, Re Cameron and (1856) , 13 U. C. Q. B. 190 475 

, Horaman (1857) , 16 U. C. R. 581 297, 512, 513, 902 



Xxxii TABLE OF OASES CITED. 

PAGE 

East Nissouri, Ross v. (1901) , 1 O. L. R. 353 917, 1043 

Northumberland Election Case, Hodgins 387 252 

Oxford, Vandecar v. (1878) , 3 A. R. 131 1016 

Saginaw Mfg. Co. v. East Saginaw, 2 Am. Rep. 82 642 

Toronto Election Case (1871) , Hodgins 70 250 

V. York (1889) , 16 O. R. 566 42 

Whitby, Re Adams and (1882), 2 O. R. 473 1014 

Williams, Re Dewar and (1905), 10 O. L. R. 468 277, 278, 

400, 410, 641 
Eastern Counties v. Marriage (1860), 9 H. L. C. 32; 31 L. J. Ex. 73. .5,-227 
Eastern & South African Telegraph Co. v. Cape Town Tramways 

(1902), A. C. 381 ; 71 L. J. P. C. 122 734 

Eastern Townships Bank v. Compton (1871) , 7 R. L. 446 521 

, Roxton V. (1882), Ramsay A. C. 240 521 

Eastnor, Re Albermarle and (1879) , 45 U. C. R. 133 ; 46 U. C. R. 183. 42 

, Parsons v. (1915) , 34 O. L. R. 110 579 

Eaton V. Basker (1881), 7 Q. B. D. 529; 45 J. P. 616; 50 I>. J. Q. B. 

444 ; 44 L. T. 703 ; 29 W. R. 597 586 

, Sangster v. (1893) , 25 O. R. 82 ; 21 A. R. 624 ; 24 S. 0. R. 489. 958 

Eddy, Bateson v. (1874) , 38 J. P. 5B8 797 

Edelstein v. Schuler (1902) , 2 K. B. 144 519 

Edgar, R. ex rel. Tinning v. (1867), 4 P. R. 86 102 

Edinljurgh v. British Linen Bank (1913), A. C. 133; 82 L. J. P. C. 

25 . . . . : . 536 

, Edinburgh St. Tramways v. (1894), A. C. 476; 63 I>. J. 

Q. B. 769 555 

, Rossi V. (1905) , A. C. 21 ; 91 L. T. 668 889 

Edinburgh Life v. St. Catharines (1864) , 10 Gr. 379 438 

Edinburgh Street Tramways Co. v. Edinburgh (1894), A. C. 476; -> 

63 L. J. Q; B. 769 555 

Edmonds v. Blaine (1887) , 56 L. J. Ch. D. 815 51< 

Edmonton, Brown v. (1894) , 23 S. C. R. 308 909, 1050 

, Pon Yin v. (1915) , 31 W. L. R. 402 609 

Edmonton, Y. & P. Ry. Wintert)urn v. (1908) , 1 A. L. R. 298 ; 8 W. L. 

R. 816 747, 7 

Edward Beck, Re (1916) , 11 W. W. R. 657 " 

Edwards v. Barrington (1901) , 85 L. T. 650 5-1 

, Hawkins v. (1901) , 2 K. B. 169 797 

, Peterborough v. (1880) , 31 C. P. 231 306 

. Sovereen v., R. ex rel. (1912), 22 M. R. 790 23, 882, 1003 

Egan V. Saltfleet (1913) , 29 O. L. R. 116 974, 980, 984 

Egremont, Melnnis v. (1903) , 5 O. L. R. 715 ' 978 

Elderslie, Re Lloyd and (1879), 44 U. C. R. 235 ,. 419 

V. Paisley (1884) , 8 O. R. 270 45, 494 

Eldon (Tp. of) and Ferguson, Re (1860), 6 U. 0. Er. J. 207 512, &13, 572 

Electrical Construction Co., Kelly v. (1907), 16 O. L. R. 232; 10 O. 

W. R. 704 293 

Electrical Development Co. and Stamford, Re (1914), 80 O. L. R. 391; 

50 S. C. R. 168 454, 656 

Elgin, In re Stanton v. (1883) , 8 O. R. 86 319 

Eliot V. Majendie (1872) , L. R. 7 Q. B. 429 740 

Elizabethtowu, Williamson v. (1904), 8 O. L. R. 181; 2 O. W. R. 977. 319 

EUice, Gall v. (1902) , 3 O. L. R. 438 1059 

, McHardy t. (1877) , 1 A. R. 628 934 

Elliott V. St. Catharines (1909), 18 O. L. R. 57; 13 O. W. R. 89. 

272, 279, 280 
Ellis V. Allen (1914) , 1 Ch. 904 ; 83 L. J. Ch. 590 1028 



TABLE OF CASES CITED. XXXIU 

PAGE 
Ellis Y. Fairfield Shipbuilding Co., 6 B. W. C. C. 308; 1813, W. C. & 

I. Kep. 88 985 

V. Loftus (1875) , L. R. 10 C. P. 10 771 

and Renfrew, Re (1910), 21 O. L. R. 74; 2 O. W. N. 27; 23 O. 

L. R. 427 . .83, 86, 139, 140-144, 145, 169, 194, 197, 198, 386, 390 

Elma, Re Bell and (1906) , 13 O. L. R. 80 196, 368, 370, 388 

Elora, Scottish Am. Invt. Co. v. (1881) , 6 A. R. 628 525, 658 

Blphick, Gosden v. (1849) , 4 Ex. 445 617 

Elston v. Rose (1868) , L. R. 4 Q. B. 4 ; 38 L. J. Q. B. 6 398 

Elves V. McCallum (1916) , 34 W. L. R. 669 877, 878 

Ely V. Bliss (1852), 2 DeG., M. & G. 459 ; ' 7 

Bmbrey, Curtis v. (1872) , L. R. 7 Ex. 369 ; 42 L. J. M. 0. 39 797 

Employers' Liability Assce. Co., Hay v. (1905), 6 O. W. R. 459 310 

England v. Davidson (1840) , 11 A. & E'. S56 688 

, (Bank of) v. Vagliano (1891), A. C. 144; 60 L. J. Q. B. 

145 6 

Erb V. Dresden P. S. Bd. (1909) , 18 O. L. R. 295 588, 589 

Erdman v. Walkerton (1892) , 15 P. R. 12 1000 

Espley V. Wilkes, L. R. 7 Ex. 298 ; 41 L. J. Ex. 241 912 

Esqnesing, Moore v. (1870) , 21 C. P. 277 1020 

Essery v. Bell (1909) , 13 O. W. R. 395 10 

Essex, Rodd v. (1910) , 19 O. L. R. 659 ; 44 S. C. R. 137 330, 620 

Btobicoke, Adamson v. (1892) , 22 O. R. 341 668 

, Mead V. (1889) , 18 O. R. 438 990 

Etter V. Saskatoon (1917) , 3 W..W. R. 1110; 39 D. L. R. 1 961 

Euphrasia v. St. Vincent (1916) , 36 O. L. R. 233 942, 943 

Evans v. Starratt, R. ex rel., 7 C. P. 19 261 

Evelyn, Claridge v. (1821), ,5 B. & Aid. 81 102 

Everett, Bolton v. (1911) , 105 L. T. 830 : 830 

Ewing v. Hewitt (1900) , 27 A. R. 296 950 

rr- v; Toronto (1898) , 29 O. R. 197 950 

~ -Exeter, Real v. (1887) , 20 Q. B. D. 300 ; 57 L. J. Q. B. 128 86 

., Stanbury v. (1906) , 75 L. J. K. B. 28 596 

, Starr v. Mayor, of, (1683) , 3 Lev. 116 322 

"aJ3ydmann v. Premier Accumulator Co. (1915), 8 B. W. C. C. 121 987 

Fairbanks v. Yarmouth (1897) , 24 A. R. 273 990 

Fairfield Shipbuilding Co., Ellis v., 6 B. W. C. C. 308 ; 1913, W. C. & 

I. Rep. 88 985 

Falconer, Doyle v., 36 L. J. P. C. 33 273 

Falle V. Tilsonburg, In re (1873) , 23 C. P. 167 906, 1010, 1020 

Fallis V. Wilson, 9 O. W. R. 418 332 

Falls Power Co., Canadian Pacific ,Ry. v. (1907) , 10 O. W. R. 1125. . . 768 

Fanning, Patterson v. (1901) , 1 O. L. R. 421 ; 2 O. L. R. 462 771 

Farlinger and Morrisburg, Re (1889), 16 O. R. 722 426, 469', 476, 477 

Farquhar v. Newbury R. CI. (1908) , 2 Oh. 586 912 

(1909) , 1 Ch. 12 ; 78 L. J .Ch. 170 911 

V. Toronto, 71 U. C. C. P. 397 844 

Farrall v. Helditch (1859) , 3 C. B. N. S. 840 670 

Farrell, R. v. (1907) , 15 O L. R. 100 601 

Faulkner v. Ottawa (1909) , 41 S. C. R. 190 695-698 

Felitz V. Howland, R. ex rel. (1886) , 11 P. R. 264 64, 215 

Fenefon Falls v. Victoria Ry. Co. (1881) , 29 Gr. 4 907, 1048 

Fennell and Guelph, Re (1865) , 24 U. C. R. 238 414, 843, 904 

Fenton, Baldrey v. (1914) , 29 W. L. R. 258 772 

M.A. C 



XXXIV TABLE OF CASES CITED. 

PAGE 

Fenton v. Simcoe, Re (1885) , 10 O. R. 27 23, 24, 408, 409, 411 

V. York County, In re (1880) , 31 C. P. 31 319 

Ferguson, Re Eldon (Tp. of) and (1860), 6 U. 0. L. J. 207 . .512, 513, 572 
. McManus v., R. ex rel. (1865), 2 U. C. L. J. N. S. 19. 

228, 258, 261 

Ferndale, Stanley v. (1892) , 56 J. P. 709 758 

Ferrier v. Trepannier (1895) , 24 S. C. R. 91 779 

Ferries, International and Interprovincial, In re (1905), 36 S. C. R. 

206 704 

, Jurisdiction as to, In re, 25 C. L. T. 106 704 

Ferris, Halsted v., R. ex rel.,' 6 C. L. J. N. S. 266 322 

V. Spect, R. ex rel., 6 O. R. 486 64 

Fertile Belt, Re Municipality of (1915) , 32 W. L. R. 265 788 

Festiniog Ry., Jones v. (1865) , 9 B. & S. 835 ; (1868) , L. R. 3 Q. B. 

733 ; 37 L. J. Q. B. 214 761, 963, 964 

Fiat Motors, Bristol v. (1910), 2 K. B. 831; 79 L. J. K. B. 1109, 

Maxwell 41 .^ 6 

Fielder, Re O'Connors and (1895) , 25 O. R. 568 .' 580 

Fieldhouse v. Toronto (1918) , 43 O. L. R. 49,1 698 

Fields, Nicholson v., 7 H. & N. 810 70 

Figg, R. ex rel. Bland v., 6 L. J. 44 71 

FincWey Electric Light Co. v. Finchley Urban CI. (1903), 1 Ch. 437; 

72 L. J. Ch. 297 916, 1010 

Finnis, British Museum v., 5 C. & P. 460 909 

Firth V. McPhail (1905) , 2 K. B. 300 ; 74 L. J. K. B. 458 872 

Fisher and Carman, Re (1905) , 1 W. L. R. 455 ; 16 M. R. 560 345 

V. Prowse, 31 L. J. Q. B. 212 908, 909 

, Unwin (1891) , 2 Q. B. 115 1042 

V. Vaughan, 10 U-C. R. 497 1017, 1020 

Fisheries, In re Provincial (1896) , 26 S. C. R. 444 .- .,. . 10 

Fishmongers' Co., Lyon v., L. R. 1 A. C. 662 ; 46 L. J. Ch. 68 991, 992 

Fitzbridges v. Windsor (1914) , 5 O. W. N. 969 641, 662 

Fitzgerald v. Molsons Bank (1898), 29 O. R. 105 438, 439, 535 

, R. V. (1912), 19 Can. Cr. Cas. 145 781 

V. Stapleford, R. ex rel. (1913), 29 O. L. R. 133 90, 246 

Fitzmartin and Newtourgh, Re (;1911) , 24 O. L. R. 102 . . . 4 87, 386 

Fitzroy v. Carleton (1910) , 9 D. L. R. 686 939-941, 943 

Flanagan v. McMahon, R. ex rel., 7 L. J. 155 68, 71 

Flater v. Von Velson, R. ex rel., 5 P. R. 319 64 

Piatt and Prescott, In re (1890) , 18 A. R. 1 14, 22 

Fleming, Mangan v., R. ex rel. (1892) , 14 P. R. 458 216, 218 

, R. V. (1895) , 27 O. R. 122 599 

, R. v., 30 D. L. R. 419 ; 36 Can. Cr. Cas. 182 781 

. Wilson V. (1901) , 1 O. L. R. 599 332 

Fletcher v. Hudson, 51 L. J. Q. B. 48 67 

, Rylands v. (1868), L. R. 3 H. L. 330; 37 L. J. Ex 161: 

734, 7'ri, 963, 965 

Flett V. Coulter (1903), 5 O. L. B. 375 771 

Fleuty V. Orr (1906) , 13 O. X. R. 69 997 

Flitton v. Stange (1913) , 24 W. L. R. 275 788 

Flood, Smith & Leis'hman v., 52 Sc. L. R. 471 ; 8 B. W.T!. C. 613. .985, 986 
Flower v. Low Leyton L. B. (1877) , 5 Ch. D. 347 ; 67 L. J. Ch. 621. . 974 

Fluett V. Gautier, R. ex rel., 5 P.R. 24 70, 71 

V. Semandier K. ex rel., 5 P. R. 19 63 

Foley V. East Flamborough (1898) , 29 O. R. 139 946, 951 

Folkestone Corpn. v. Brockman (1914), A. C. 338; 83 L. J. K. B. 745. 911 
Fonseca v. Shultz. (1891) , 7 M. R. 464 1054 



TABLE OP CASES CITED. XXXV 

PAGE 

Foote V. Lorain, 21 Ohio Cir. Ot Rep. 319 568 

Forbes v. GTimsTjy P. S. Bd. (1903), 7 O. L. R. 137. . . .282, 285, 418, 

426, 453, 454, 458 

, Price V. (1915) , 36 O. L. R. 136 ;-23. D. L. R. 532 17 

Ford, Real v. (1877), 3 C. P. D. 73 ; 47 L. J. C. P. 56 86 

V. Cottingham, R. ex rel., 1 U. G. L. J. N. S. 214 66 

V. Gaiety Theatre (1914) , 7 B. W. C. C. 197 987 

V. Hart (1873) , L. R. 9 C. P. 273 ; 43 L. J. C. P. 24 86 

, Marks v. (1881) , 45 J. P. 157 797 

V. McRae, R. ex rel.. 5 P. R. 309 71, 102 

V. Newth (1901) , 1 K. B. 683 ; 70 L. J. K. B. 459 70, 292, 587 

, Toronto v. (1913) , 4 O. W. N. 1386 ; 24 O. W. R. 717 870 

Forest, Brown v., 62 Atl. Rep. 1078 568 

Forrest v. Winnipeg (1909) , 18 M. R. 440 951 

Forsyth v. Oannifie (1890) , 20 O. R. 478 '. . .596, 752 

V. Dalsen, R. ex rel., 7 L. J. 71 71 

, Dickinson v. (1904) , 90 L. T. 30 817 

Forsythe v. Canadian Pacific Ry. (1905) , 10 O. L. R. 78 952 

Fort William, re Grand Trunk Pacific and, 43 S. C. R. 412 . . .566, 926, 993 

, Port Arthur v. (1898) 25 A. R. 522 340 

Fort WiUiam Public School Bd., Smith v. (1893) , 24 O. R. 366 454 

. Forward v. Detlor, R. ex rel. (1868) , 4 P. R. 198 103, 222 

Foster v. Dodd (1877) , 3 Q. B. 77 757 

& Hamilton, Re (1899) , 31 O. R. 292 897 

T. Hintonburg (1897) , 28 O. R. 221 492 

V. Lansdowne (1899) , 13 M R. 416 691-694 

& Raleigh, Re (1910) , 22 O. L. R. 26 346, 355 

Foulkes, HoUender v. (1895) , 26 O. R. 61 6 

Fournier, R. ex rel. Harwood v. (1892) , 14 P. R. 463N 216 

Fox V. Barrow, &c., Co.. 84 L. J. K. B. 1327 986 

, Douglas v., 31 U. C C. P. 140 1042 

., Westminster (Tp. of) v. (1860) , 19 U. C. R. 203 525 

Frankel v. Winnipeg (1913), 23 M. R. 296; 8 D. L. R. 219; 3 W. W. 

R. 405 ; 22 W. L. R. 597 796 

Fraser v. Diamond (1905) , 10 O. L. R. 93 912 

Freeborn, R. ex rel. Walton v. (1901), 2 O. L. R. 165 '. . . . .96, 216 

Freel, Mills v. (1912) , 23 O. W. R. 45 ; 3 O. W. N. 1240 1054 

Freeman v. Cooke, 2 Ex. R. 654 476 

Fremington School, Re, 10 Jur. 512 ; 11 Jur. 421 331 

Freud v. Dennett (1858), 4 C. B. (N. S.) 576; 23 J. P. 56; 27 L. J. 

C. P. 314 ; 4 Jur. (N. S.) 897 585 

Fritz V. Hobson (1880) , 14 Ch. 542 ; 49 L. J. Ch. 321 992 

Frizzell, R. ex rel. Lachford v., 6 P. R. 12 64 

Front of Escott (Tp. of) and Service, Re (1909), 13 O. W. R. 1215.145, 199 
Frontenac v. Kingston, 20 C. P. 49 ; 30 U. C. R. 584 ; 32 U. C. R. 348. 

46, 483, 494 

, Mace and, Re (1877), 42 U. C. R. 70 191, 196, 375, 

377, 412, 1019 

Fullerton, Colquhoun v. (1913) , 28 0. L. R. 102 952 

Fulton County, Marsh v. (1870) , 10 Wallace 676 521 

Ftirlong V. Carroll (1882) , 7 A. R. 145 748- 

G. 

Gage, Taylor v. (1913) , 30 O. L. R. 75 947, 1009, 1019 

Gaiety Theatre, Ford V. (1914)", 7 B. W. C. C. 197 987 

Galinski, Stiles v. (1904) , 1 K. B. 615 ; 73 L. J. K, B. 485 355 



XXXVl TABLE OF OASES CITED. 

PAGE 

Gall V, EUice (1902) , 3 O. L. R. 438 1059 

Galloway v. London (1887) , L. R. 4 Eq. 90 ; 36 L. J. Ch. 978 329 

Gait By-law, Re (1908) , 17 O. L. R. 270 905 

, Caldwell and, Re (1898) , 30 O. R. 378 341, 418, 424 

(1900) , 27 A. E. 162 1046, 1062 

(1905) , 10 O. L R. 619 :277, 410 

, Peck and. Re (1881) , 46 U. C. R. 211 411, 716, 844 

Galveston v. Galveston, 90 Texas 398 770 

Galway Election Case (1869) , 1 O'M. & H. 307 251 

Gananoque, Re Brophy and (1876). 26 U. C. C. P. 290 191, 375, 1019 

Garbufct v. Winnipeg, 18 M. R. 345 598 

Gardner, Oak Bay v. (1914) , 27 W. L. R. 360 808, 819 

Garfield v. Toronto (1894) , 22 A. R. 128 694 

Garfunkel, Toronto r. (1912) , 22 O. W. R. 374 870 

Garkide, Dalgleish v. (1914) , 7 B. W. C. C 535 987 

Garner, Atty.-Gen. v. (1907) , 2 K. B. 480 1043 

Garnett v. Bradley (1878) , 3 A. C. 944 15 

Garnham, Re (1915) , 34 O. L. R. 545 ; 85 O. L. R. 54 887 

Garratt, R. ex rel. Armstrong v. (1907), 14 O. L. R. 397 97, 98, 192 

Garrioch v. McKay (1901) , 13 M. R. 404 743, 774 

GaskiU, Atty.-Gen. v. (1882), 22 Ch. D. 537; 52 L. J. tih. 163; 47 

L. T.. 566 ; 31 VV. R. 135 586, 587 

Gautier, R. ex rel. Fluett v., 5 P. R. 24 70, 71 

Geddes t. Bann Reservoir (1878) , 3 A. C 430 947, 964 

, R. V. (1915) , 35 O. L. R. 177 . . .- 886, 887 

General Bank, Re London v. (No. 2) (1895) , 2 Ch. 673 318, 319 

General Sewage Co., Nuneaton v. (1875), L. R. 20 Eq. 127; 44 L. 

J. Ch. 561 584 

Georgetown and Stimson, In re (1892), 23 O. R. 33 426, 427, 472 

Gerhardt, State v. (1896) , 145 Ind. 439 23 

Gerlach v. Spokane (1912) , 124 Pac. Rep. 121 ; 68, Wash. 589 433 

^German v. Ottawa (1917) , 56 S. C. R. 80 972 

Gerow and Pickering, Re (1906) , 12 O. L. R. 545 -245 

Gery v. Block Iron Brewery (1891) , 55 J. P. 711 810 

Gesman v. Regina (1909) , 10 W. L. R. 136 402, 595 

Gibb, Original Hartlepool Collieries Co. v. (1877) , 5 Ch. D. 713 1046 

Gibbons v. Proctor (1891) , 64 L. T. 594 688 

Gibbs, Mersey Docks! v. (1866), L. R. 1 H. L. 93; 35 L. J. Ex. 225. 

598, 709, 803, 820, 949, 996, 1079 

, Wheler v. (1880) , 4 S. C. R. 430 212 

Gibson v. North Easthope (1894) , 21 A. R. 504 ; 24 S'. C. R. 707 23 

V. Norwalk, 13 Ohio Cir. Ct. Rep. 428 569 

& Toronto, Re (1913) , 28 O. L. R. 20 .566 567 

Giddy, Smith v. (1904), 2 K. B. 448 ; 73 L. J. K. B. 894 786, 1043 

Gifford and Bury, Re (1888) , Q. B. D. 368 ; 57 L. J. Q. B. 181 573 

Gignec v. Toronto (1906), 11 O. L. R. 616 949, '950, 951 

Gilbert, Jonas v. (ISSO) , 5 S. 0. R. 356 349 

Gilchrist v.'Carden (1876) , 26 U. 0. C. P. 1 1060 

& Sullivan, Re (1879) , 44 U. C Q. B. 855 425 

Giles' and Almonte, Re (1910) , 21 O. L. R. 362 114, 198, 387 

V. Walker (1890) , 24 Q. B. 656 ; 59 L. J. Q. B. 416 786 

Gill v. Jackson (1856) , 14 U. C. R. 119 260 

Gillespie v. Westbourne (1888) , 10 M. R. 656 533 

Gillies, Barrie v., 21 C. P. 213 1032 

Gilmour, R. ex rel. Lee v., 8 P. R. 514 ... ....[.......... ..... 71 

Giovinazzo V. Canadian Pacific Ry. (1908), 19 O. L. R. 325- 13 O. 

W. R. 1200 '. . . .985, 987 

Glasgow, Plantza v. (1910) , S. C. 786 958 



TABLE OP CASES CITED. XXXVU 

PAGE 

Glasgow, Stevenson v. (1908) , S. C. 1034 720 

Glasgow Bank, Houldsworth v. (1880) , 5 A. C. 329 994 

Glasgow & S. W. Ry. Go., Comrs. of I. R. v. (1887), 12 A. C. 315 ; 56 

L. J. P. C. 82 555 

Glen Woollen Mills, Gower v. (1913) , 28 O. L. R. 193 985 

Glenn, Beamish v. (1916) , 36 O. L. R. 10 867, 868, 873 

Gloster v. Toronto El Light Co. (1906) , 38 «. C. R. 27 965, 966 

Gloucester t. Canada Atlantic Ry., 3 O. L. R. 91 ; 22 C. L T. 63. .907, 1048 
, Hamilton Powder Co. v. (1909) , 13 O. W. R. 661.341, 344, 738 

, Traversy v., 15 0. R. 214 921 

Glover and Sam Kee, Re (1914) , 20 B. C. R. 219 ; 27 W. L. R. 886 . . 867 

Glynn v. Niagara Falls (1913) , 29 O. L. R. 521 ; 31 O. L. R. 1 953, 966 

Goddard, R. v., 11 Ad. & El. 3 223 

Godden v. Toronto (1908) , 11 O. W. R. 708 ; 844 

Goderich, Atty.-Gen. v. (1856) , 5 Gr. 402 590, 718, 844 

, Holmes v. (1902) , 5 O. L. R. 33 439, 497 

Godfrey v. Cooper (1920), 46 O. L. R. 565 962 

Godson and Toronto, Re (1888) , 16 O. R. 275 ; 16 A. R. 452 ; IS S. C. 

R. 36 334 

Godstone Rural CI., R. v. (1911) , ^ K. B. 465 ; 80 X,. J. K. B. 1184. . 303 

GofE, Phillips V. (1886) , 17 Q. B. D. 814 ; 55 L. J. Q. B. 512 173 

Goldert, Pictou v. (1893), A. C. 524 ; 63 L. J. P. C. 37 953 

Golds, Wandsworth v. (1911), 1 K. B. 60; 80 L. J. K. B; 126 913, 1029 

Goldsmith, London v. (1889) , 16 S:. C. R. 231 948 

Goldsmiths'^Co. v. West Metropolitan (1904), 1 K. B. 1; 72 L. J. K. B. 

QQ1 ^ ^ ^ Q7X 1013 

Gooderham v.' Toronto (i885)","2i'o. R. 120;' 19 A.' R.' 641; 25 S. C.' 

R. 246 912, 913, 1047, 1049 

Goodison v. McNab (1909) , 19 O. L. R. 188, 214 ; 44 S. C. R. 187. 

479, 936, 947 
Goodman. Vestry of St. Mary v. (1889), 23 Q. B. D. 154; 58 L. J. M. 

C. 122 1049, 1050 

Goodwin, lUidge v. (1831) , 5 C. & P. 190 1001 

V Roberts (1875) , L. R. 10 Ex. 337 519 

, Wood V. 1904) , 36 Wash. 31 ; 78 Pac. Rep. 36 433 

Gordon, Dickie v. (1905) , 39 N. S. R. 311 743, 744, 745, 756 

, R. V. (1888) , 16 O. R. 64 602 

Gore, R. v. (1878), 5 U. C. R. 357 297 

Gorman, Ex parte (1898) , 34 N. B. R. 397 599 

Gorrill, Martin v. (1889), 23 Q. B. D. 139 ; 58 L. J. Q. B. 329 95 

Gorris V. Scott (1874) , L. R. 9 Ex. 125 ; 43 L. J. Ex. 92 583 

Gorton L. Bd. v. Prison Comrs. (1904), 2 K. B. 165n ; 73 L. J. K. B. 

114n 340 

Gosden v. Elphiek (1849) , 4 Ex. 445 617 

Gosfield, Balzer v. (1889) , 17 O. R. 700 924, 998 

, Sweatman and, In re (1889) , 13 P. R. 293 407, 410 

Gosfield South, Wigle v. (1901) , 1 O. L. R. 519 44 

Gosling v. Veley (1847) , 7 Q. B. 406 102 

Gouin, Landerville v. (1884), 6 O. R. 455 779 

Gowan, R. ex rel. Dexter v., 1 P. R. 104 64, 102 

Gowanlock, R. ex rel. Hall v. (1898) , 29 O. R. 443 221, 222 

Gower v. Glen Woolen Mills (1913) , 28 O. L. R. 193 985 

V. Peate (1876) , 1 Q. B. D. 321 ; 45 L. J. Q. B. 446 968 

Gracey, Wallasey v. (1887) , 36 Ch. D. 593 590, 1047 

Graham, Applegarth v., 7 U. C. C. P. 171 64 

V. Huddersfield Oorpn. (1895) , 12 T. L. R. 36 585 

V. Lister (1908), 9 W. L. R. 589 784 

V. Niagara FaUs Park (1896) , 28 O. R. 1 719 



XXXTIU TABLE OF CASES CITED. 

PAGE 

Graham v. Sutton Carder (1897) , 1 Ch. 761 410 

Grand Forks, Plath v. (1904), 10 B. C. R. 301 746 

Grand Junction Canal Co., Dimes v. (1852), 3 H. L. C. 759 72, 600 

V. Petty, 21 Q. B. D. 273; 57 L. J. Q. B. 

572 909, 913 

Grand Mere, Hanson v., 11 Que. K. B. 77 ; (1904), A. C. 789 441, 663 

Grand Trunk Ry., Arthur v. (1894), 25 O. R. 37; 22 A. R. 89. . . .689, 784 

, Barnett v. (1911) , A. C. 361 771 

, Dalziel v. (1876) , 6 P. R. 305 85 

, Halton Cy. v. (1892) , 19 A. R. 252 ; 21 S. C. R. 

716 .. . ; 671, 672 

V. Hainer (1905) , 36 S. C. R. 180 788 

, Hillyard v. (1885) , 8 O. R. 583 746 

& Peterborough, Re (1882) , 8 S. C. R. 76 672 

, R. V. (1916) , 37 O. L. R. 457 826 

V. Toronto, 6 O. W. R. 27 913 

, Whitby V. (1901) , 1 O. L. R. 480 668, 670, 671 

Grand Trunk Pacific Ry. and Fort William, Re, 43 S. C. R. 412.566, 926, 998 

, White V. (1910) , 2 A. L. R. 546 788 

Grant v. Coleman, R. ex rel. (1882), 8 P. R. 497 ; 7 A. R. 624 

215, 216, 218, 228, 233 

, Lester v. (1804) , 15 Ves. 248 60 

V. Puslinch (1868) , 27 U. C. R. 154 408 

Grantham, Dionne v. (1914) , 46 Que. S. C. 349 487 

Granville, Baddeley v. (1887), 19 Q. B. D. 423 ; 56 L. J. Q. B. 501. . . 757 

Gravelle, R. v. (1886) , 10 O. R. 735 844 

Gravenhurst, Jn re Marter and, 18 O. R. 243 178 

Gray v. Hackney (1904) , 2 L. G. R. 429 586 

V. IngersoU (1888) , 16 O. R. 194 97 

V. PuUen, 34 L. J. Q. B. 265 968 

, Watson V. (1880) , 14 Ch. D. 192 ; 49 L. J. Ch. 243 819 

Grayson v. Bell, R. ex rel., 1 C. L. J. N. g. 130 322 

Great Eastern, Atty.-Gen. v. (1879), 5 A. C. 473; 48 L. J. Ch. 445. 

351, 352, 670 

, Hertfordshire Cy. CI. v. (1909), 2 K. B. 403 990, 991 

, Lambert v. (1909) , 2 K. B. 776 ; 79 L. J. K. B. 32 ... 613 

Great Northern Ry., Atty.-Gen. v., 84 L. J. Ch. 793 938 

, Boyd T. (1885), 2 I. R. 555 992 

, Harrison v. (1864) , 3 H. & C. 231 1001 

V. Witham (1874), L. R. 9 C. P. 16; 43 L. J. C. 

P. 1 292 

Great Western, Bangor v. (1854) , 5 H. L. C. 89 576 

, Beauchamp v., L. R. 3 Ch. 745 ; 38 L. J. Ch. 833 911 

, Jarvis v. (1859) , 8 C. P. 280 329, 330 

, Kent v., 3 C. B. 417 974 

, Lewis V. (1877) , 3 Q. B. D. 195 185 

V. North Cayuga (1872) , 23 C. P. 31' 241, 642 

, Sarnia v., 21 U. C. R. 59 917 

V. Solihall Rural CI., 86 L. T. 852; 66 J. P. 722.909, 910, 911 

, Wallace v. (1877) , 25 6r. 86 ; 3 A. R. 44 670, 671 

Green & Balfour, Re (1890) , 63 L. T. 93, 325 576 

& Canadian Northern, Re., 30 W. L. R. 572 ; 22 D. L. R. 15. . . 571 

V. Holt, 51 L. J. Q. B. 640 978 

, Wanamaker v. (1885), 10 O- R. 467 1020, 1054 

Greene, Re Carus- Wilson and, 18 Q. B. D. 7 ; 55 L. T. 864 569 

, Holman v. (1881) , 6 S. C. R. 707 708 

, R. ¥. (1843) , 4 Q. B. 646 414 



TABLE OF CASES CITED. XXXIX 

PAGE 
Greenfield. St. Vincent v. (1886), 12 O. R. 297; 15 A. R. 567.... 

908, 1010, 1048 

Greenwood, Smith v. (1907), 2 K. B. 385 ; 76 L. J. K. B. 1129 786 

Greig v. Merritt (1913) , 24 W. L. R. 828 ; 11 D. L. R. 852 961 

Greyson and Armstrong, Re (1894) , 70 L. T. 106 577 

Greystock v. Otonaibee (1855) , 12 U. C. R. 458 345 

Gribben v. Kirker (1873) , Ir. R. 7 C. L. 30 115, 127 

Grierson v. Ontario, 10 U. C. R. 626 408 

Griffith V. Taylor (1876) , 2 C. P. D. 194 617 

Grimsby, Beemer v. (1884) , 8 O. R. 103 ; 13 A. R. 225 1010. 

1022, 1053, 1054 

, Vandyke and. Re (1906) , 12 O. L. R. 211 203, 239, 

259, 369, 410, 1019 

, (1909) , 19 O. L. R. 402 369 

, Wolfeu'den and, Re (1914) , 5 O. W. N. 901 662 

Grimsby Public School Bd., Forbes v. (1903), 7 O. L. R. 137 282, 

285, 418, 426, 453, 454, 458 

Grimshaw and Toronto, Re (1913) , 28 O. L. R. 512 562 

Grosvenor St. Church, Re Toronto and, 41 O. L. R. 352 562, 579, 581-582 

Groves, Hubert v., 1 Esp. 148 991 

, Rose v., 5 M. & Gr. 613 991 

V. Wimborne (1898) , 2 Q. B. 402 811 

Grundy, Randell v. (1895) , 1 Q. B. 16 408 

Guelph V. Canada Co. (1853) , 4 Gr. 632 ." 718 

, Re Fennell and (1865), 24 U. C. R. 238 414, 843, 904 

, Maloney v., 43 O. L. R. 213 948 

Guelph Worsted Spinning Oo. v. Guelph (1914), 30 O. L. R. 466. .761, 948 

Guilett, Wood v. (1895) , 10 M. R. 570 7 

Gulf V. Burger, 45 S. W. 613- 567 

Gulliver, Lyons v. (1914) , 1 Ch. 631 ; 83 L. J. Ch. 281 830-832 

Gunder Bjorge v. Zellickson, R. ex rel. (1910), 13 W. L. R. 433 194 

Gundry v. Sainsbury (1910) , 1 K. B. 645 ; 79 L. J. K. B. 713 329 

Gunn, Murray v. (1916) , 26 M. R. 345 ; 34 W. L. R. 633 579 

Gurr, R. v. (1891) , 21 O. R. 499 900 

H. 

Hackney Election Case (1874) , 2 O'M. & H. 77 109 

. Gray v. (1904) , 2 L. G. R. 429 586 

Haddon, Doe v., 3 Doudas 310 331 

Hadley v. Righton (1907) , 2 K. B. 345 : 76 L. J. K. B. 891 914 

Hagerman R. ex rel. Burnham v.. 31 O. R. 636 .63, 220 

Haigh V. North Bierley Union (1858), 28 L. J. Q. B. 62 ; 23 J. P. 195 ; 

31 L. T. (O. S.) 213 ; 5 Jur. (N. S.) 511 ; 6 W. R. 679 . . 586 

V. West (1893) , 2 Q. B. 19 ; 62 L. J. Q. B. 532 918, 1043 

Hainer, Grand Trunk v. (1905) . 36 S. C. R. 180 788 

Hair v. Meaford (1914) , 31 O. L. R. 124 415 

Haldimand, Almas v. (unreported) , see 10 O. R. 27 •. 23 

V. Bell Telephone Co. (1912) , 25 O. L. R. 467 767 

Election Case (1888) , 1 E. C. 547 181 

V. Hamilton & N. W. Ry. (1887) , 27 C. P. 228 671 

, Macartney v. (1905) , 10 O. L. R. 666 .• 330 

, Re Moulton and (1885), 12 A. R. 508 933, 934, 947. 1002 

Hales, Burleigh v. (1864) , 27 U. C. R. 72 ;. . . 1032 

Halifax, Atty.-Gen. v. (1903) , 36 N. S. R. 177 594 

Election Case (18S3) . 4 O'M. & H. 205 231 

, Hart V. (1902) , 35 N. S. R. 1 484 

, Joyce v., 24 N. S. R. 133 .'. . 732 



Xl TABLE OF CASES CITED. 

PAGE 
Halifax v. Nova Scotia Car Works (1914), A. C. 992; 84 L. J. P. C. 

17 492 

, O'Brien v., 19 N. S. R. 393 979 

, Robinson v., 11 N. S. R. 375 980 

, Walker v., 4 R. & 6. 371 ; (1893) , A. C. 530 978 

Hall V. Gowanlock, R. ex rel. (1898) , 29 O. R. 443 221, 222 

V. Lees (1904) , 2 K. B. 602 ; 78 L. J. K. B. 819 905 

V. Moose Jaw (1910) , 12 W. L. R. 693 ; 3 Sask. L. R. 22 345 

, R. V. (1891) , 1 Q. B. 747 184 

V. South Norfolk (1892) , 8 M. R. 430 373 

Halladay and Ottawa, Re (1907) , 14 O. L. R. 458 ; 15 O. L. R. 65. . . .17, 23 

Halsted v. Ferris, R. ex rel., 6 0. L. J. (N. S.) 266 322 

Halton V. Grand Trunk (1892), 19 A. R. 252 ; 21 S. C. R. 716 671, 672 

Provincial Election, Re (1902) , 4 O. L. R. 345 175, 179 

Hamburg v. Waterloo (1893), 22 O. R. 198; 20 A. R. 1 ; 22 S. C. R. 

296 919 

Hamill, R. ex rel. Moore, v. (1904), 7 6. L. R. 603 212, 2!20, 439 

Hamilton, Barton v. (1891), 18 O. R. 199; 17 A. R. 346; 20 S. 0. R. 

173 776, 1035 

, Barton v. (1908) , 11 O. W. R. 1118, 1131 480, 776 

, Belling v. (1902) , 3 O. L. R. 322 946 

, Brennan v. (1917) , 39 O. L R. 367 17 

, Brown v. (1902) , 4 O. L. R. 249 '. . . . 1060 

, Devlin and. Re (1875) , 40 U. C. Q. B. 160 566 

, Foster and, Re (1899) , 31 O. R. 292 897 

, Hamilton Gas Co. v. (1910), A. C. 300; 79 L. J. P. C. 76. . 361 
V. Hamilton Street Ry. (1905), 10 O. L. R. 594; 39 S. 0. 

R. 673 585 

V. Harris, In re (1845) , 1 U. 0. R. 513 319 

, Harris and, Re (1879) , 44 U. C. R. 641 844 

, Homewood v. (1901) , 1 O. L. R. 266 966, 967 

, Kendall v., 4 A. C. 515 ; 48 L. J. C. P. 705 995 

V. Morison, 18 C. P. 228 844 

& McNichol, In re (1908) , 12 O. W. R. 1015 41 

, O'Connor v. (1904) , 8 O. L. R. 399 6, 981 

(1905), 10 O. L.-R. 536; 6 O. W. R. 227. . .983, 984 

V. Piper, R. ex rel., 8 P. R. 225 63 

, R. V. (1913) . 5 O. W. N. 58, 265 ; 25 O. W. R. 33 886 

, Reid V. (1856) , 5 C. P. 269 947 

, Sherwood v. (1875) , 37 U. 0. R. 410 951 

Trust & Loan Co. v. (1858) , 7 C. P. 98 522 

, Wentworth v. (1874) , 34 U. 0. R. 585 623 

, Wood v. (1913) , 28 O. L. R. 214 844 

Hamilton (Bank of) v. Baine (1888) , 12 P. R. 439 410 

Hamilton Gas Co. v. Hamilton (1910), A. C. 300; 79 L. J. P. C. 'Tg! '. 361 

Hamilton & N. W. Ry., Haldimand v. (1887) , 27 0. P. 228 671 

, West Gwillimbury v. (1876) , 23 Gr. 383 .... 671 

Hamilton Park Oomrs., Hope v. (1901) , 1 O. L. R. 477 546, 590, 716 

Hamilton Powder Co. v. Gloucester (1909), 13 O. W. R. 661.341, 344, ' 
„ ., , ' 738-740 

- Hamilton Street Ry., Atty.-Gen. v. (1897), 27 O. R. 49; 24 A. R 170. 590 
, Hamilton v. (1905), 10 Ot L. R. 594; 39 S. C. 

R- 673 585 

Hamm v. Bashford (1916) , 33 W. L. R. 473 ; 9 W. W. R. 1044 ...... 243 

Hammersmith v. Brand (1869) , L. R. 4 H. L. 171 ; 38 L. J. Q. B. 265. 

„ , „ 5, 227, 566, 760, 947 

Hammond, Bushnell v. (1904) , 73 L. J. K. B. 1105 975 

and Waterton, Re (1890) , 62 L. T. 808 569 

Hampshire, Masters v. (1915) , 84 I^. J. K. B. 2194 957 



TABLE OP CASES CITED. xli 

PAGE 

Hampson v. Price's Candle Co. (1876) , 45 L. J. Ch. 437 332 

Hancock v. British Westinghouse El. Co. (1910), 3 B. W. C. C. 210. . 987 

Hanley v. Brantford (1910) , 16 O. W. R. 812 1017 

Hannlngs v. Williamson, 52 L. J. Q. B. 4l6 69 

Hanson v. Grand Mere (1904), A. C. 789 ; 11 Que. K. B. 77 441, 668 

, Pointe Gatineau v. (1901), 10 Que. K. B. 346 645, 663 

Hanwell Urban CI., Atty.-Gen. v. (1900), 1 Ch. 51; 69 L. J. Ch. 626. 

544-546, 718, 1029 

Hardaker v. Idle D. C. (1896) , 1 Q. B. 335; 65 L. J. Q. B. 363 997 

Harding v. Bennett, R. ex rel., 27 O. B. 314 .63, 64, 71, 79, 642 

V. Cardiff (1882) , 2 O. E. 329 1009, 1016 

, Spencer v. (1870), L. R. 5 C. P. 561 ; 39 L. J. C. P. 332. . . 292 

Hardwick v. Brown (1873), L. R. 8 C. P. 406 '. 201, 203, 204 

, Kidderminster v. (1873), L. R. 9 Ex. 13; 43 L. J. Ex. 9 ; 

23 L. T. 611 ; 22 W. R. 160 587 

Harford v. Lynskey (1899) , 1 Q. B. 852 ; 68 L. J. Q. B. 599 91, 97 

Harmon v. Park (1881) , 7 Q. B. D. 369 97 

6 Q. B. D. 323 226 

Harold v. Smith (1860) , 29 L. J. Ex. 141 ; 5 H. & N. 381 329 

Harper v. Charlesworth, 4 B. & C. 574 912 

& East Flamborough, Re (1914) , 32 O. L. R. 490 461, 464 

, Le Boutillier t., 1 Que. L. R. 4 105 

, O'NeU V. (1913) , 28 O. L. R. 635 912, 992 

Harrington v. Derby Corpn. (1905), 1 Ch. 206; 74 L. J. Ch. 230. . .970, 971 

Harris v. Amery (1865) , 35 L. J. C. P. 89 887 

V. Bradburn, R. ex rel. (1876) , 6 P. R. 308 114 

, Hamilton y. In re (1845), 1 U. C. R. 513 319 

& Hamilton, Re (1879) , 44 U. C. R. 641 844 

, Moriarity v. (1905) , 10 O. L. R. 610 616 

Harrison v. Duke of Rutland (1883) > 1 Q. B. 142 ; 62 L. J. Q. B. 117. 914 

v.- Great Northern Ry. (1864) , 3 H. & C. 231 1001 

, Milligan v., R. ex rel (1908), 16 O. L. R. 475. . . .63, 64, 77, 

78, 98, 192, 220, 25S, 326 

V. Stickney (1847) , 2 H. L. C. 107 493 

Harrow, Phillips v., 93 Iowa 92 ; 62 N. W. 343 17 

Hart V. Allen (1902) , 40 N. S. R. 352 201 

, Ford V. (1873) , L. R. 9 C. P. 273 ; 43 L. J. C. P. 24 86 

V. Halifax (1902) , 35 N. S. R. 1 484 

, Macllreith v. (1907), 41 N. S. R. 351 ; 39 S. C. R. 657. . . .298, 

590, 591, 594, 715, 903 

Hartley Whitney U. C, Ohinnoek v., 63 J. P. 427 910, 911 

Harvey and Parkdale, Re (1888) , 16 O. R. 372 571 

V. Scott, R. ex rel., 2 C. L. Ch. 88 102 

V. Shelton, 7 Beav. 462 577 

V. Truro Rural CI. (1903) , 2 Ch. 638 ; 72 L. J. Ch. 705 911 

Harwich and Kent, Re (1914) , 31 O. L. R. 654 717 

Harwood v. Fournier, R. ex rel. (1892) , 14 P. R. 463n 216 

Hastings, O'Oarroll v. (1905) , 2 I. R. 590 69 

V. Summerfeldt (1899) , 30 O. R. 579 145 

Hatch and Oakland, Re (1910) , 19 M. R. 692 115, 191 

Hatton V. West Cork (1883) , 23 Ch. D. 654 ; 52 L. J. Oh. 689 332 

Havelock, Robinson v. (1914) , 32 O. L. R. 25 961 

Hawk and Ballard, In re, 3 C. P. 241 260 

Hawke and WeUesley, Re (1856) , 13 U. C Q. B. 631 475 

Hawker, Mill v. (1874) , 43 L. J. Ex. 129 ; 44 L. J. Ex. 49 925 

Hawkesbury, Belleisle v. (1904) , 8 O. L. R. 694 948 

, Seguin and. Re (1912), 23 O. W. R. 857; 4 O. W N. 

521 1020 



Xlll TABLE OF CASES CITED. 

PAGE 

Hawkeshaw v. Dalhousie, 7 U. C. R. 590 626 

Hawkins, Dawes v., 8 C. B. (N.S.) 848 909, 911 

V. Edwards (1901) , 2 K. B. 169 ,. . 797 

, R. V. (1808) , 10 East 211 • 102 

Hay V. Bisonnette (1910) , 14 O. W. R. 279 ; 17 O. W. R. 321 913 

V. Employers' Liability Assce. Co. (1905), 6 O. W. R. 459 310 

& Listowel, Re (1897) , 28 O. R. 332 423 

Hayes, R. v. (1904) , 5 O. L. R. 202 60 

. Strickland v. (1896), 1 Q. B. 290; 65 L. J. M. C. 55 346, 763 

T. Toronto, Ex parte (1856) , 7 U. C. 0. P. 255 475 

Hayman v. Rugby School (1874) , L. R. 18 Eq. 28 ; 43 L. J. Ch. 8S4. . 331 

Haynes v. Copeland (1865) , 18 C. P. 150, 167 358 

Hays V. Columbia (1912) , 141 S. W. 3 : . 948 

Hayward V. Westleigh Colliery Co., 8 B. W. C. C. 278; 84 L. J. K. B. 

661 ; (1915) , A. C. 545 ; 111 L. T. 1001 ; 31 T. L. R. 215 986 

Heath v. Brighton (1908) , 98 L. T. 718 ; 24 T. L. R. 414 758 

Heenan v. Murray, R. ex rel. (1864) , 3 P. R. 345' 260 

Heffernan, Macnamara v., R. ex rel., 7 O. L. R. 289 . 71 

V. Walkerton (1903), 6 O. L. R. 79 276, 298. 611, 902 

Helditch, Farrall v. (1859) , 5 C. B. (N. S.) 840 670 

Hellems v. St. Catharines (1894) , 25 O. R. 583 332 

Helm V. Port Hope (1875) , 22 Gr. 273 641, 699 

Hemming v. New Haven (1910) 82 Conn. 661 ; 74 Atl. 892 961 

, Watts V. (1907) , 71 J. P. 504 231 

Henderson v. Merthyr Tydfel (1900), 1 Q. B. 434; 69 L. J. Q. B. 335. 

329 330 

& Mono, Re, 9 O. W. R. 599 191, 196^ 369 

& Toronto, Re (1898) , 29 O. R. 699 1009 

& Wes't Nissouri, Re (1911) , 23 O. L. R. 651 413 

Hendricks, Levee Cbmrs. v., 27 So. 613 568 

Hensall, Coxworth and. Re (190S) , 17 O. L. R. 431 368 

Herefordshire Cy. CI., Coats v. (1909) , 2 Ch. 579 ; 78 L. J. Ch. 568, 781. 911 

Hermann, R. v. (1879) , 48 L. J. M. C. 106 7 

Heme Bay, Webb v. Comrs. of (1870) , L. R. 5 Q. B. 642 ; 39 L. J. Q. 

B. 221 476 

Herriman v. Pulling (190fi) , 8 O. W. R.. 149 1054 

Hertfordshire v. Great Eastern Ry. (1909) . 2 K. B. 403 990, 991 

V. New River Co. (1904), 2 Ch. 513; 74 L. J. Ch. 49. . 991 

, R. V. Justice of, 6 Q. B. 753 331 

Hesketh v. Toronto (1898) , 25 A. R. 449 597, 752, 753, 803 

H6ve, Royal Electric Co. v. (1902) , 32 S. C. R. 462 -. 966 

Hewison v. Pembroke (1884) , 6 O. R. 170 1010 

Hewitt, Ewing v. (1900) , 27 A. R. 296 950 

. Rigby V. (1850) , 5 Ex. 240 . . ; 1000 

v. Stanley, 6 B. W. C. C. 501 ; 109 L. T. 384 ; 1913, W. C. & 

I. Rep. 495 985 

Hewson v. Riddell, R. ex rel., 14 O. W. R. 49 163 

Hibbert v. Acton Local Bd. (1889) , 5 T. L. R. 274 810 

Hickey and Orillia, Re (1908), 17 O. L. R. 317 145, 164, 165, 

189, 190, 194, 197, 199, 633 

Hicklin, R. v. (1868) , L. R. 3 Q. B. 360 ; 37 L. J. M. C. 89 763 

Hickman v. Maisey (1900) , 1 Q. B. 752 ; 69 L. J. Q. B. 511 914 

V. Roberts (1913) , A. C. 229 16, 577 

Higgins V. Canadian Pacific Ry. (1908), 18 O. L. R. 12 747 

V. SeaWe (1909) , 100 L. T. 280 915 

V. Whitby (1860) , 20 U. C. R. 296 671 

High Court, In re Local Offices of (1906) , 12 O. L. R. 16 621 

Hilcoat V. Archbishop of Canterbury, 10 C. B. 327 566 



TABLE OF CASES CITED. xliii 

PAGE' 

Hill V. Bretts, H. ex rel., 4 P. R. 113 69 

V. Crediton U. D. C. (1898) , 78 L. T. 351 ; 80 L. T. 861 . . . . 7 . . 492 

, Lawrenson v., 10 Ir. C. L. R. 498 974 

V. Memphis, 134 U. S. 198 517 

, Metropolitan v. (1881), 6 A. C. 193; 50 L. J. Q. B. 353.698,734, 760 

V. Middagh (1889) , 16 A. R. 356 592, 593 

V. New River Co. (1868) , 9 B. & S. 303 1000 

, Pointon v. (1884), 12 Q. B. D. 306; 53 L. J. M. 0. 62 791 

V. .Simmonds (1913) , 14 D. L. R. 887 569 

V. South Sta£eordshire (1864) , 12 L. T. R. 63 16 

V. Taylor and Ottawa (1904) , 9 O. L. R. 643 905 

, Trimble v. (1879) ,5 A. C. 342; 49 L. J. P. C. 49 6 

V. Walsingham (1849) , 9 U. C. R. 310 408, 459, 460 

Hillyard v. Grand Trunk (1885) , 8 O. R. 583 746 

Hinds V. Barrie (1903) , 6 O. L. R. 656 1000 

Hintonburg, Foster v. (1897)-, 28 O. R. 221 492 

Hiscox, R. V. (1879) , 44 U. 0. R. 214 609 

Hislop V. McGillivray, 12 0. R. 749 ; 15 A. R. 687 ; 17 S. C. R. 479.944, 1009 

& Stratford, Re (1915) , 34 O. L. R. 97 567 

Hoare, ClifEord v., L. R. 9 C. P. 362 ; 43 L. J. 0. P. 225 912 

V. Kingsbury Urban 01. (1912), 2 Ch. 452; 81 L. J. Ch. 666. 

585, 586, 587 

Hoibbs V. Morey (1904) . 1 K. B. 74 ; 73 L. J. K. B. 47 95, 102 

& Toronto, Re (1912) , 23 O. W. K. 8 ; 4 O. W. N. 31 867 

Hoibson, Fritz v. (1880) , 14 Ch. 452 ; 49 L. J. Ch. 321 992 

Hodge V. Matlock Bath (1911), 75 J. P. 65 ; 27 L. R. 129 ; 8 L. G. R. 

1127 586 

V. The Queen (1883), 9 A. C. 117 897 

Hodgius V. Toronto (1892) , 19 A. R. 537 ;i041, 1042, 1043 

& Toronto, Re (1909) , 1 O. W. N. 31 .480, 488 

Hodgson V. Robins (1914) , 7 B. W. C. C. 232 987 

Hogan V. Jolivette, R. ex rel. (1912) , 20 W. L. R. 364 194, 204 

, Montreal v. (1900) , 31 S. C. R. 1 562 

& Tudor (Tp. of, Re (1915) , 34 O. L. R. 571 800 

Hogg V. Brooke (1904) , 7 O. L. R. 273 861, 874, 946 

Holiborn District B. of W., Saunders v. (1895), 1 Q. B. 64 ; 64 L. J. 

Q. B. 101 780 

Holbrook, Bird v., 4 Bing 667 • 772 

Holden v.'Yarmouth (1903) , 5 O. L. R. 584 990 

Holditeh v. Canadian Northern Ry. (1916) , 1 A. C. 536 557, 567 

Holland Landing, Re Sharp and (1915), 24 O. L. R. 186 187, 229, 230 

V. York (1904) , 7 O. L. R. 533 990 

Hollender v. Foulkes (1895) , 26 O. R. 61 6 

Holman v. Greene (1881) , 6 S. C. R. 707 708 

& Rea, Re (1912) , 27 O. L. R. 432 601 

Holmes v. Brown (1908) , 18 M. R. 48 297, 796 

V. Carley, 31 N. Y. 289 .'.... 1025 

V. Goderich (1902), 5 O. L. R. 33 439, 497 

V. North Eastern Ry. (1869) , L. R. 4 Ex. 254 701 

, R. V. (1907) , 14 O. L. R. 124 601 

Holmested and Seaforth, Re (1910) , 2 O. W. N. 464 645, 658-9 

Holt, Ihinn v. (1904) , 73 L. J. K. B. 341 830, 1050 

, Green v., 51 t". J. Q. B. 640 978 

Holtham v. Detroit, 98 N. W. 754 989 

Homewood v. Hamilton (1901) , 1 O. L. R. 266 966, 967 

Hood V. Toronto Harbor Comrs. (1876) ,34 U. C. R. 87; 37 U. C. R. 

72 820 

Hope V. Hamilton Park Comrs. (1901), 1 O. L. R. 477 546, 590, 716 



xliv TABLE or CASES CITED. 

PAGE 

Hopewell v. Kennedy (1904), 9 O. L. R. 43 270 

Hopkins V. Smethwick (1890) , 24 Q. B. D. 712 ; 59 L. J. Q. B. 250. . 816 

, Tough V. (1904) , 1 K. B. 804 ; 73 L. J. K. B. 628 826 

Hopper, Be, L. R. 2 Q. B. 367 ; 36 L. J. Q. B. 97 577 

Horner v. Oadman (1886) , 55 L. J. M. C.'llO 830, 1050 

Horsham, Oliver v. (1894) , 1 Q. B. 332 ; 63 L. J. Q. B. 181 998 

Horsman, East Nissouri v. (1857) , 16 U. C. R. 581 297, 512, 513, 902 

Horwich Election Case (1851), 1 P. R. & D. 314 115 

, 3 O'M. & H. 71 246 

Houldsworth v. City of Glasgow Bank (1880) , 5 A. C. 329 994 

Hounsell v. Smyth, 7 C. B. (N. S.) 731 772 

Houns'low Burial Bd., Stevens v. (1889), 54 J. P. 309; 61 L. T. 839; 

38 W. R. 236 587 

Howard, Akers v. (1886) , 16 Q. B. D. 751 ; 55 L. J. Q. B. 273 232 

, Alexander v. Tp. of (1887) , 14 O. R. 22 521 

, Clark and Tp. of. Re (1889) , 16 A. R. 72 521 

, Confederation Life v. (1894) , 25 O. R. 197 475, 476, 521 

, R. V. (1884) , 4 O. R. 377 814 ' 

v. Rowsell, 7 B. W. C. C. 552 985 

Howarth v. McGugan (1892) , 23 O. R. 396 952 

fiowes V. Turner (1876) , 1 C. P. D. 670 ; 45 L. J. C. P. 550 93 

Howland, Felitz v.,.R. ex rel. (1886) , 11 P. R. 264 64, 215 

, McLean v. (1909) , 14 O. W. R. 509 1017 

Howse v. Southwold (1912) , 27 O. L. R. 29 970 

Hoyl'e V. Putnam, 46 Conn. 56 988 

Hubert v. Groves, 1 Esp. 148 991 

V. Yarmouth (1889) , 18 O. R. 458 908, 933, 990 

Huddersfield, Corpn., Graham v. (1895), 12 T. L. R. 36 585 

Hudson, Fletcher v., 51 L. J. Q. B. 48 67 

Hughes V. Coed Talon Colliery Co. (1909) , 2 B. W. C. C. 159 987 

, St. Louis v., 73 S. W. 976 568 

Hull V. London Cy. CI. (1901) , 1 K. B. 580 ; 70 L. J. K. B. 364 854 

v. North Eastern Ry. (1915) , 84 L. J. Ch. 905 910 

. Trudel v. (1903) , 24 Que. S. C. 283 484 

Hull Electric v. Ottawa Electric (1902) , A. C. 237 ; 71 L. J. P. O. 58. 732 
Humberstone v. Dinner (1897), 2 Terr. L. R. 106; 26 S. C. R. 252 . . 703 
Humphreys, London Cy. CI. v. (1894), 2 Q. B. 755; 63 L. J. M. C. 215. 810 

Hunt V. Acton (1908), 72 J. P. 345; 6 L. G. R. 957 586 

V. Palmerston (1902) , 5 O. L. R. 76 706 

V. Wimbledon (1878), 4 C. P. D. 48; 43 J. P. 284 ; 48 L. J. C. P. 

207 ; 40 L. T. 115; 27 W. R. 123 330, 585, 586 

Hunter, Whelihan v. (1903) , 2 O. W. R. 20 484, 495 

Hunton, R. v., 9 L. G. R. 751 201 

Huntsville, Alexander v. (1894) , 24 O. R. 665 36, 341, 642 

Huron, Wright v. Synod of, 29 Gr. 348 ; 11 S. C. R. 95 642 

Huron College, Marsh v., 27 Gr. 605 282, 453 

Hurst V. Parker, 1 B. & Aid. 92 989 

Huskinson, Poole v., 11 M. & W. 827 908, 909, 910, 911 

Huson and South Norwich, Re (1892), 19 A. R. 343. .371, 372, 408, 409, 633 
Hutchings, Postmaster-General v. (1916), 1 K. B. 774 ; 85 L. J. K. B. 

1008 768 

Huth V. Windsor (1915) , 34 O. L. R. 249 ; 542 _ 950, 951 

Hyde v. Barnhart, R. ex rel., 7 L. J. 126 260 



Idle District 01., Hardaker v. (1896) , 1 Q. B. 335 ; 65 L. J. Q. B. 363. 997 
Ihde V. Starr (1910) , 21 O. L. R. 407 913 



TABLE OF CASES CITED. xlv 

PAGE 

lUidge V. Goodwin (1831) , 5 C. & P. 190 1001 

Imperial G-as Light Co., Church v. (1838), 6 A. & E. 846; 3 N. & P. 

35 ; 1 W, W. & H. 137 ; 7 L. J. Q. B. 118 586 

Imperial Timber Co., Pacific Lumher Agency v., 7 W. W. R. 260. ... 6 

Ince V. Toronto (1900) , 27 A. R. 414 948 

Industrial Exhibition, Marshall v. (1900), 1 O. L. R. 319; 2 O. L. R. 

62 701, 71S 

IngersoU v. Caroll (1882) , i G. R. 488 1035 

, Gray v. Ingersoll, Re (1888) , 16 O. R. 194 97 

, Wilson and, In re (1894) , 25 O. R. 439 274 

Ingham v. Orde, R. ex rel. (1830) , 3 A. & E. 420n 223 

, Wnson V. (1895) , 64 L. J. Q. B. 775 114, 225, 229 

Inglis and Toronto, Re (1904), 8 O. L. R. 570; 9 O. L. R. 562. .646-8, 

1012, 1013 

Ingoldsby v. Spiers, R. ex rel., 13 O. W. R. 611 64 

Ingram v. Milnes (1807) , 8 East 445 38 

Innes v. Newman (1894) , 2 Q. B. 292 ; 63 L. J. M. C. 19S 758 

Institute of Chartered Accountants, James v. (1908), 98 L. T. 225 816 

Irwin V. Bradford (1872) , 22 C. P. 18, 421 923 

, Campbell v. (1914) , 32 O. L. R. 48 566 

, Ivison v., R. ex ret (1902), 4 O. L. R. 192 163, 164, 

182, 192, 219, 224, 228, 230 

Isherwood, R. v., 2 Ld. Ken. 202 243 

Islington, Arlidge v. (1909) , 2 K. B. 127 ; 78 L. J. K. B. 553 355 

, Election Case (1901), 5 O'AI. & H. 120 115 

, Nokes V. (1904) , 1 K. B. 610 ; 73 L. J. K. B. lOO 355 

Iveson V. Winnipeg (1906), 16 M. R. 352 950, 951, 975, 976, 977 

Ivison V. Irwin, R. ex rel. (1902), 4 O. L. R. 192 163, 164. 182, 

192, 219, 224, 228, 230 



Jack V. Stevenson (1910) , 19 M. R. 717 746, 774 

Jackson, GiU v. (1856) , 14 U. C. R. 119 260 

, Linton v., R. ex rel. (1851) , 2 C. L. Ch. 18 228 

, London v. (1881) , 7 Q. B. D. 502 ; 50 L. J. M. 0. 134 7 

& North Vancouver, Re (1913) , 19 B. C. L. R. 147 573 

V. Yickers (1912) , 5 B. W. C. C. 432 987 

Jacob, Meux v. (1875) , L. R. 7 H. L. 481 ; 44 L. J. Ch. 481 7 

Jacobs V. Beaver (1908) , 17 O. L. R. 496 6 

, St. Mary Newington v. (1871), L. B. 7 Q. B. 47; 41 L. J. M. 

O. 72 909, 1050 

James V. Institute of Chartered Accountants (1908), 90 L. T. 225... 816' 

, Johns V. (1S78) , 8 Ch. D. 744 ; 47 L. J. Ch. 853 200 

V. Masters (1893) , 1 Q. B. 355 808 

, Pickering v. (1873), L. R. 8 C. P. 488; 42 L. J. C. P. 217. 

231, 232, 598 

V. Staines Urban CI. (1900) , 83 L. T. 426 805 

James Bay Ry. v. Armstrong (1909) , A. C. 624 579 

Jaroieson v. Cook, R. ex rel., 9 O. L. R. 466 68 

Janner, McCatherin v. (1912) , 41 N. B. R. 367 886 

Jarvis v. Great Western Ry. (1859) , 8 C. P. 280 329, 330 

Jefferson & L. P. Ry., Orleans, v., 26 So. 278 567 

Jenkins v. Brecken (1883) , 7 S. C. R. 247 178 

Joanisse v. iMCason, R. ex rel., 28 O. R. 495 63 

Jobarton v. Murvey, R. ex rel., 5 Ij. J. 87 231 

John Deere v. Wharton (1915) , A. O. 330 ; 84 L. J. P. C. 64 16, 344 

Johns V. James (1878) , 8 Ch. D. 744 ; 47 L. J. Ch. 853 200 

V. Stewart, R. ex rel. (1888) , 16 O. R. 583 246 



xlvi TABLE OF CASES CITED. 

PAGE 

Johnson v. Allen (1895) , 26 O. R. 550 185 

, Barraclough v. (1838) , 8 A. & E. 99 909 

Johnson, Kruse v. (1898) , 2 Q. B. 91 ; 67 L. J. Q. B. 782 345, 

349, 353, 763, 1060 

& Lambton, Re., 40 U. C. R. 297 ' 191 

, Latham v. (1913) , 1 K. B. 398 772, 961 

, Manners v. (1875) , 1 Ch. D. 673 ; 45 L. J. Ch. 404 854 

Johnston v. Dom. of Canada Guarantee (1908), 17 O. L. R. 462; 11 

O. W. R. 363 ; 12 O. W. R. 980 987 

V. Nelson (1890) , 17 A. R. 19 921 

, R. v., 38 U. 0. R. 549 849, 1060 

, Salkeld v. (1848) , 2 Ex. 256 424 

& Tilbury East, Re (1911) , 25 O. L. R. 242 24 

JolifiEe, Tompkins v., 51 J. P. 247 71 

Jolivette, R. ex rel. Hogan v. (1912), 20 W. L. R. 364 194, 204 

Jolly V. Brown (1914) , 2 K. B 120 979 

Jonas V. Gilbert (1880) , 5 S. C. R. 336 349 

Jones y. Bird, 5 B. & Aid. 845 ; 24 R. R. 585 " 977 

V. Boyce, 1 Starkie 495 772 

V. Canadian Pacific Ry. (1913), 30 O. L. R. 347; 83 L. J. P. 

C. 13 1055 

V. Conway (1893) , 2 Ch. 603 ; 62 L. T. Ch. 767 801 

V. Pestiuiog Ry. (1865), 9 B. & S. 835; (1868), I.. R. 3 Q. B. 

733 ; 37 L. J. Q. B. 214 761, 963, 964 

& London, Re (1899) , 30 O. R. 583 275, 283-5, 410 

& Ottawa, Re (1907) , 9 A. R. 323 849 

V. Port Arthur (1888) , 16 O. R. 474 358 

, Robbins t., 15 C. B. (N. S.) 221 ; 33 L. J. C. P. 1 909 

V. Short (1900) , 64 J. P. 300 797 

V. Simpson, 1 C. & J. 174 979 

V. Stephenson (1900) , 32 O. R. 226 989 

& Stribbell, Re (1909) , 10 W. L. R. 518 191 

V. Thompson (1858) , 27 L. J. Q. B. 234 38 

V. Tuckersmith, 30 O. L. R. 634 1016 

Jordan v. Provincial Provident, 27 S. C. R. 554 . ,310 

Jordin v. Crump, 8 M. & W. 782 772 

Josselsohn v. Weiler, 9 L. G. R. 1132 ; 75 J. P. 513 912 

Journal Printing Co. v. McVeity (1915) . 33 O. L. R. 166 303-5 

Jourdon, R. v. (1900) , 8 Can. Cr. Cas. 337 783 

Joyce V. Halifax, 24 N. S. R. 133 732 

Judd v. Metropolitan Asylums Bd. (1912) , 5 B. W. C. 0. 420. 986 

Julius V. Oxford (1880), 5 A. C. 214 ; 49 L. J. Q. B. 577 7, 1009 

JuU, R. ex rel. Cort)ett v. (1869). 5 P. R. 41 96, 231 

Justice of Hertfordshire, R. v., 6 Q. B. 753 331 

Justice of King's County, R. v., 2 Cart. 499 783 

Justin, R. V. (1893) , 24 O. R. 327 721 

K. 

Kansas, Carey v., 85 Southwestern 438 720 

Kansas City v. Bacon, 57 S. W. 1045 567, 568 

Karry and Chatham, Re 20 O. L. R. 178 ; 21 O. L R. 566 749, 889, 890 

Kaulbach v. McKean (1905) , 38 N. S. R. 38 227 

Keay v. Regina (1912) , 22 W. L. R. 185 415, 636 

Keefe, R. v. (1890) , 1 Terr. L. R. 280 754 

Keeling and Brant, Re (1911 ) , 25 O. L. R. 181 23 

Keen v. Millwall Dock (1882) , 8 Q. B. D. 482 979 

Keenan, R. v. (1913) , 28 O. L. R. 441 629 



TABLE OF CASES CITED. xlvii 

PAGE 

Kee^^atin v. Kenora (1908), 13 O. L. R. 237 ; 16 O. L. R. 1S4 10 

KeigWey v. Durant (1901) , A. C. 240 ; 70 L. J. K. B. 662 722 

Kellett V. Stockport Corpn. (1906) , 70 J. P. 154 587 

KeUy V. Barton (1895), 26 O. R. 608; 22 A. R. 522 595, 611, 

612, 615, 617, 1059 
Kelly, Cavers v., R. ex rel. (1906), 7 O. W. R. 280, 600. . .97, 193, 220, 326 
V. Electrical Construction Co. (1907), 16 O. L. R. 232 ; 10 O. W. 

R. 704 293 

& Macarow, Re., 14 C. P. 460 226 

V. Mathers (1915), 31 W. L. E. 931; 32 W. L. R. 33; 25 M. L. 

R. 580 339, 512, 513 

, Neville v. (1862) , 12 C. B. (N. S.) 740 688 

V. Toronto (1864) , 23 U. C. R. 426 353, 842 

& Toronto Junction, Re (1904), 8 O. L. R. 168 262, 276, 277, 410 

V. Whitchurch (1905) , 11 O. L. R. 155 ; 32 O. L. R. 83 969 

V. Winnipeg (1898) , 12 M. R. 87 355 

Kendall v. Hamilton. 4 A. C. 515 ; 48 L. J. C. P. 405 995 

Kennard v. Cory (1892) , 2 Q. B. 578 ; 67 L. J. Q. B. 809 349 

Kennedy and Boles, Re (1905) , 6 O. W. R. 837 365 

, Hopewell v. (1904) , 9 O L. R. 43 270 

V. Toronto (1887) , 12 O. R. 226 1028 

Kenny v. Caldwell (1894) . 21 A. R. 110 ; 24 S. C. R. 699 907 

Kenora, Keewatin v. (1908) , 13 O. L. R. 237 ; 16 O. L. R. 184 10 

Kensington, Davis v. (1874) , L. R. 9 C. P. 723 ; 43 L. J. C. P. 370. . 93 
Kensington Vestry, Madden v. (Ig92) , 1 Q. B. 614 ; 61 L. J. Q. B. 527. 977 

Kent, Belmore, v. (1901) , 1 Ch. 873 ; 70 L. J. Ch. 501 911 

, Canada Temperance Act and, In re (1884), Cassels' Digest 

106 23 

V. Great Western Ry., 3 C. B. 417 974 

, Harwich and. Re (1914) , 31 O. L. R. 654 717 

. Steinhoff v., (1887) , 14 A. R. 12 951 

Ker, R. ex rel. McGregor v., 7 U. C. C. P. 67 64 

Kerfoot v. Watford (1893) , 24 O. R. 235 440 

Kerr, Baxter v. (1876) , 23 Gr. 367 286 

&• Lambton, Re (1896) , 21 O. R. 33 4 450 

V. Preston Corpn. (1876) , 6 Ch. D. 464 ; 46 L. J. Ch. 409 809 

V. Smith, Re, 24 O. R. 475 71 

& Thornbury, Re (1906) , 8 O. W. R. 451 378 

Kershaw v. Shoreditch (1906) , 22 T. L. R. 302 201 

Kerth, Ohio v., 30 N. E. 298 568 

Kesteven, Curtis v. (1890) , 45 Ch. D. 504 1043 

Ketcheson v. Canadian Northern Ry., 29 O. L. R. 339 571 

Kidderminster v. Hardwick (1873) , L. R. 9 Ex. 13 ; 43 L. J. Ex. 9 ; 

29 L. T. 611 ; 22 W. R. 160 587 

Kiely, Re (1887) , 13 O. R. 451 347, 755, 814, 819, 861 

Kilby, Atkins v. (1840) , 11 A. & E. 777 617 

Kilgour, Murdock v. (1914) , 7 O. W. N. 1^ ; 33 O. L. R. 412 ; 19 D. L. 

R. 878 114, 398 

Kincardine, Re McLpod and (1876) , 38 U. 0. R. 617 710 

King, BogaFt v. (1901) , 1 O. L. R. 496 430, 485, 678 

, Chamberlain v. (1871) , L. R. 6 C. P. 474 617 

, East Gwillimbury v. (1910) , 20 O. L. R. 510 330, 1010 

, Levis v. (1900) , 9 Que. Q. B. 1 642, 658 

V. Matthews (1903) , 5 O. L. R. 228 286 

V. Toronto (1903) , 5 O. L. R. 163 641, 700 

, Yabhicom v. (1899) , 1 Q. B. 444 ; 68 L. J. Q. B. 560 80S, 809 

King (The) , Canadian Pacific Ry. v. (1907) , 39 S'. C. R. 476 826 

, Cunard v., 43 S. C. R. 88 553,. 566 



Xlviii TABLE OF CASES CITED. 

PAGE 

King (The) v. MacArthur (1904) , 34 S. C. R. 577 560, 561 

, Yeoman v. (1904) , 2 K. B. 29 980 

(See R. for other cases). 

King and Albion, Maw v. (1883) , 8 A. R. 249 935, 994 

Kingham, Metropolitan Asylum v. (1900) , 6 T. L. R. 217 587 

Kinghom and Kingston, Re (1866) , 26 U. C. R. 130 843 

King's County, Mallon, v. (1900) , 35 N. B. R. 159 310 

. R. Y. Justice of, 2 Cart. 499 783 

Kingsbury v. Dedham, 13 Allen 186 951 

Kingsbury Urban CI., Hoare v. (1912), 2 Ch. 452; 81 L. J. Ch. 666. 

585, 586, 587 

Kingston, Anglin v. (1857) , 16 U. C. Q. B. 121 521 

, Campbell and. Re (1864) , 14 C. P. 285 710 

V. Drennau (1897), 23 A. R. 406; 27 S. C. R. 46 780, 

950, 971, 981, 984 
, Frontenac v., 20 C. P. 49; 30 U. C. R. 584 ; 32 U. C. R. 348. 

46, 483, 494 

, Kinghorn and. Re (1866) , 26 U. C. R. 130 843 

, Osborne v. (1893) , 23 O. R. 383 787 

, Stevenson v. (1880) , 31 C. P. 333 329, 330 

Kingston Liglit, Heat and Power Co., In re (1902), 3 O. L. R. 637; 

5 O. L. R. 348 360, 361 

Kin'gsville, Wigle v. {1897) , 28 O. R. 378 365 

Kirk V. Toronto (1904) , 8 O. L. R. 739 952 

Kirker, Gribben v. (1873), Ir. R 7 C. L.'30 115, 127 

Kirkleatham Local Bd., Stockton and Middlesborough Water Bd. v. 

(1893) , A. C. 444 ; 63 L. J. Q. B. 56 555 

, and Stockton and Middlesborough Water Bd., 

(1893), 1 Q. B. 375 ; 62 L. J. Q. B. ISO. . . 555 

Kirkpatrick, Langford v. (1876) , 2 A. R. 513 978 

Kirty v. Paignton Urban CI. (1913) , 1 Ch. 337 ; 82 L. J. Ch. 198 909 

Kleopfer, Warnock v., 14 O. R. 288 ; 15 A. R. 324 ; 18 S. C. R. 701. . 201 

Knapp, St. Louis v., 61 S. W. 300 567 

Knight Y. Medora and Wood (1887) , 11 O. R. 138 ; 14 A. R. 112 917, 923 

Knowles, R. v. (1913) , 25 W. L. R. 294 . . '. 728 

Knox and Belleville, Re (1913) , 5 O. W. N. 237 ; 25 O. W. R. 201 849 

Knudson and St. Boniface, Re (19(K) , 15 M. R. 317 402 

Koonsky v. Quellette (1917) , 226 Mass. 474 961 , 

Krieseler v. Le Valley, 122 Mich. 576 988 

Kruse v. Johnson (1898), 2 Q. B. 91 ; 67 L. J. Q. B. 782 345, 349, 

353, 763, 1060 
V. Romanowski (1910) , 3 S. L. R. 274 ; 14 W. L. R. 696 743, 7.71 

L. 

L'Abbe and Blind River, In re (1904), 7 O. L. R. 230; 30 O. W. R. 

162 66, 239, 271, 279, 400 

Lacey v. Mowlem, 7 B. W. C. C. 28 986 

Lachford v. Frizell, R. ex rel., 6 P. R. 12 64 

Lacoste, Cedar Rapids v. (1914), A. C. 569; 83 L. J. P. C. 162 

553, 563, 578 

Lafiferty v. Wentworth, 8 U. C. R. 232 408, 1020 

Lafinson v. McCarthy, R. ex rel. (1903) , 5 0. L. R. 338 212 

Laforge, R. v. (1906) , 12 O. L. R. 308 790, 904 

Laidlaw and Campbellford, Re (1913) , 31 O. L. R. 209 569 

Lake Erie & Detroit Rv. v. Marsh (1904) , 35 S. C. R. 197 655 

Lake Erie & Northern Ry,, Re Brantford Golf Club and (1914). 32 - 

O. L. R. 141 ; 32 D. L. R. 219 551-3 



TABLE OF CASES CITED. xUx 

PAGE 

Lake Erie-& Northern Ry., Re Muir and (1914), 32 O. L. R. 150. .555, 576 

Lake S'imcoe Ice Co., McDonald v. (1898) , 24 A. R. 411 709 

LafcefleW, In re Leahy and (1906) , 8 O- W. R. 743 , . .244, 254 

Lamb v. Ottawa (1904) , 4 O. W. R. 408 645 

, Reed v. (1862), 6 H. & N. 75 248 

Lambert, Bolton v. (1889) ,41 Ch. D. 295 587 

, Crump V. (1867) , L. R. 3 Eq. 409 ; 15 L. T. 600 ; 17 L. T. 133. 827 
Y. Great Eastern (1909), 2 K. B. 776; 79 L. J. K. B. 32 .... 613 

V. Lowestoft Corpn. 1901) , 70 L. J. K. B. 333 947, 964 

Lambetli Water Works, Moore v. (1886) , 17 Q. B. D. 462 ; 55 L. J. 

Q. B. 304 998 

Lambton, tie Johnson anil, 40 U. C. B. 297 191 

, Re Kerr and (1896) , 21 O. R. 334 450 

Lamprell v. BUlericay Union (1849) , 3 Ex. 283 ; 18 L. J. Ex. 282. .. . 586 

Lanark, In re CampbeU and (1893) , 20 A. R. 372 659, 673 

Lancashire v. Bury Corpn., 14 A. C. 417 ; 59 L. J. Q. B. 85 921, 990 

Lancashire, &c., Ry. v. Davenport, 4 L. G. R. 425 ; 70 J. P. 129 910 

Lancaster v. Walsh (1837) , 4 M. & W. 16 688 

Landerville v. Gouin (1884) , 6 O. R. 455 779 

Lane v. Toronto (19t)4), 7 O. L. R. 423 334-6 

Langdon v. Baby, R. ex rel., 2 C. L. Ch. 130 63 

Langely v. Midland By., 37 L. J. Ch. 316 914 

Langford v. Kirkpatrick (1876) , 2 A. R. 513 978 

Langley, B. v. (1899) , 31 O. R. 295 897 

Langtry v. Dumoulin (1885) , 11 A. R. 549 ; 13 S. C. R. 258 413 

Lankester, Le Feuvre v., 3 E. & B. 530 66 

Lansdowne, Fositer v. (1899) , 18 M. R. 416 691-4 

Laplante and Peterborough, Re (1884) , 5 O. R. 634 1016 

Lapointe, Laren v. (1909), 36 Que. S. C. 249; 42 S. C. R. 521; 30 

C. L. T. 175 484 

Laren v. Lapointe (1909), 36 Que. S. C. 249; 42 S. C. R. 521; 30 C. 

L. T. 175 484 

Lariviere v. Richmond (1902), 21 Que. S. C. 37 643, 673 

Larwood, B. v. (1693) , Carthew 306 : 322 

Latham v. Johnson (1913) , 1 K. B. 398 772, 961 

, R. V. (1894) , 24 O. B. 616 756, 900 

Laughtenborough v. McLean, 14 U. C. C. P. 175 64 

Laughton. R. v. (1912) , 22 M. R. 520 357 

Lavoie, R. v., 6 Can. Or. Cas. 39 273 

Lawford y. Billericay (1903), 1 K. B. 772 ; 72 L. J. K. B. 554.330, 585, 586 

Lawrence, Crane v. (1890) , 25 Q. B. D. 152 ; 59 L. J. M. C. 110 750 

T. Owen Sound (1902) , 1 O. W. R. 599 688 

Lawrenson v. Hill, 10 Ir. C. L. R..498 974 

Lax V. Darlington (1897) , 5 Ex. D. 28 701 

Lazarus v. Torcmto (1859) , 19 U. C. R. 9 779 

Leahy and Lakefield, In re (1906) , 8 O. W. R. 743 244, 254 

Leak v. Toronto (1900), 31 S. C. R. 322 ..» 567, 571 

Leake, R. v., 5 B. & Ad. 469 909, 911 

Leamington, Young v- (1883) , iS A. C. 517 ; 52 L. J. Q. B. 713. .330, 585, 988 

Le Boutillier v. Harper, 1 Que. L. R. 4 105 

Lee V. GilmoUr, R. ex rel., 8 P. R. 514 71 

V Riley, 18 C. B. (N. S.) 722 771 

V. Walker (1872) , L. R. 7 C. P. 121 ; 41 L. J. 0. P. 91 808 

Leeds Corpn. v. Ryder (1907) , A. C. 420 ; 76 L. J. K. B. 1032 600 

Lees, Hall v. (1904), 2 K. B. 602 ; 73 L. J. K. B. 819 905 

Le Feuvre v. Lankester, 3 E. & B. 530 66, 71 

Legare v. Wolfe Tp. School Comrs. (1914) , 20 It. de J. 287 487 

Leicester v. TroUope (1911) , 75 J. P. 197 586 

M.A. D 



1 TABLE OF CASES CITED. 

PAGE 

Leigh Rural Dist. CI., K. v. (1898) , 2 A. G. 3811 493 

Leizert v. Matilda (1897) , 29 O. R. 98 ; 26 A. R. 1 973, 995 

Lemmon v. Webb (1891) , A. C. 1 ; 64 L. J. Ch. 205 1048 

Lempriere, GotteriU v. (1890), 24 Q. B. D. 634 ; 59 L. J. M. C. 133. . 759 

Lennox Election, Re (1903) , 6 O. L. R. 203 '. 250 

Provincial. Election Case, Re (1902), 4 O. L. R. 378. . .151, 15S, 176 

Lennox & Addington,,Sills v. (1900) , 31 O. R. 512 688 

Lepitre, Citizens' Light t. (1898) , 29 S. C. R. 1 966 

Leslie v. Malahide (1906) , 13 O. L. R. 97 ; 15 O. L. R. 4 309, 340 

Lester v. Grant (1808) , 15 Ves. 248 60 

Letherby, Bowkes v., R. ex rel. (1908) , 17 O. L. R. 304 100, 193, 

204, 205, 230 
, O'Shea v., R. ex rel. (1908) , 16 O. L. R. 581 . .63, 72, 79, 98, 

192, 220, 225, 227, 327, 652 

Le Valley, Krieseler v., 122 Mich. 576 988 

Levee Comrs. v. Hendricks, 27 So. 613 : 568 

Leresque v. New Brunswick Ry., 29 N. B. R. 588 747 

Levis V. King (1900) , 9 Que. Q. B. 1 : .642, 658 

Levy, R. v. (1899) , 30 O. R. 403 881,-898 

Lewis v. Alexander (1895) , 24 S. C. R. 551 340 

V. Carr, L. R. 1 Ex. D. 484 66, 70 

V. Great Western Ry. (1877) , 3 Q. B. D. 195 185 

V. Smith, Holt N. P. 27 978 

Leyton v. Chew (1907), 2 K. B. 283 ; 76 L. J. K. B. 781 349, 354, 356 

Lichfield Election Case- (1869) , 1 O'M. & H. 28 252 

Liebenthal, Re Montgomery and (1898) , 78 L. T. 407 578 

Lilly, Bliss v. (1862) , 3 B. & S. 128 740 

Limerick Election Case (1S33) , P. & D. 373 115 

(1S69), 1 O'M. & H. 261 246 

Lincoln Election, Re (1878) , 4 A. R. 206 .175, 229 

, Lincoln, Sheriff of v. County of. Re (1873), 34 U. C. R. 1.318, 319 

, Merritton v. (1917) , 41 O. L. R. 6 404, 924 

, PafiEord and, Re (1864) , 24 U. C. R. 16 459 

, Secord v., 24 U. C. R. 147 408 

, St. Catharines and. Re (1881), 46 U. C R. 425 38, 623 

Lindley v. Detroit, 90 N. W. 665 989 

Lindsay, Mclntyre v. (1902) , 4 O. L. R. 448 1000 

Linstead v. Whitchurch (1916), 35 O. L. R. 1 ; 36 O. L. R. 462 936 

Linton v. Jackson, R. ex rel. (1851) , 2 C. L. Ch. 18 228 

Liquor License Act, Re (1913) , 29 O. L. R. 475 414 

Lisgar Election Case (1902) , 14 M. R. 310 235 

Lister v. Clinton (1909) , 18 O. L. R. 197 1017, 1053, 1054 

, Graham v. (1908) , 9 W. L. R. 589 784 

Listowel, Re Hay and (1897) , 28 O. R. 332 423 

Little V. McCartney (1908), 9 W. L. R. 448 ; 18 M. L. R. 323 641, 1019 

v. Smith (1914) , 32 O. L. R. 518 951 

■V. WoodrirfE, 5 S. W. 792 568 

Littlejohn, R. v. (1904) , 8 Can. Cr. Cas. 213 781 

Litton, Boss v. (1832), 5 C. & P. 407 1011. 

Liverpool, Atty.-Gen. v. (1835) , 1 Myl. & C. 172, 210 718 

• ■ (1837) , 7 L. J. Ch. 51 ; 2 Myl. & C. 613 . : . . 590 

T. Chorley Waterworks (1852) , 2 D. M. & G. 852 717 

V. Liverpool (1902), 35 N. S. R. 241; 33 S. C. R. 180. 

7, 294, 340, 1009, 1043, 1049 

. Princess of Wales v. Ear! of (1818), 1 Swanst. 114 410 

, R. T. (1759), 2 Burr. 723 453 

(1872),41 L. J. Q. B. 175 436 

V. Wright (1859) , 28 L. J. Ch. 868 ' 329 



TABLE OF CASES OITBD. 11 

PAGE 

Lloyd.and Mderslie, Re (1879) , 44 U. 0. B. 235 419 

Tm&q Association v. Topeka (1874) , 20 Wall. (U. S.) 655 661 

Local Govt. 3Jd., The Queen- v. (1882) . 10 Q. B. D. 309 5 

Locke, R. V. (l9ll) , 1 K. B. 680 ; 80 L. J. K. B. 358 482 

Lockhart v. Barnard (1843) , 14 M. & W. 674 688 

Lofthouse, R. T., L. R. 1 Q. B. 440 212, 411 

Loftus, Ellis V. (1875) , L. R. 10 C. P. 10 771 

Logan, A'tty.-Gen. v. (1891) , 2 Q. B. 100 589 

, McKiUop V. (1899), 29 S. O. R. 702 : 24 

London, Baxter v., 63 L. T. 167 795 

, Board of Education of, v. City of London (1901), 1 O. L. R. 

284 .454, 487 

: , Dixon V. (1876) , 1 A. C. 632 ; 46 L. J. Q. B. 617 997 

, Galloway v. (1887) , L. R. 4 Eq. 90 ; 36 L. J. Oh. 978 329 

V. General Bank, Re (No. 2) (1895), 2 Ch. 673 318, 319 

V. Goldsmith (1889) , 16 S. C. R. 231 948 

V. Jackson (1881) , 7 Q. B. D. 502 ; 50 L. J. M. 0. 134 7 

. Jones and. Re (1899) , 30 O. R. 583 275, 283-5, 410 

V. . London, 70 L. J. Ch. 334 72 

, London, Bd. of Education of y. (1901), 1 O. L. R. 284 454, 487 

, London Street Ry. v. (1903) , 9 O. L. R. 439 905 

, . McKelvin v. (1892) , 22 O. R. 70 1000 

..Middlesex and, In re (1855) , 14 U. C. R. 334 41 

V. Morley (1911) , 2 K. B. 257 ; 80 L. J. K. B. 908 879 

T. .Newmarket (1912) , 20 O. W. R. 929 ; 3 O. W. N. 565 ; 1 D. 

L. R. 244 ; 2 D. L. R. 244 414, 641 

, Parsons v. (1911) , 25 O. L. R. 172, 442 286, 325, 326, 636 

,. Peters V. (1846), 22 U. 0. R. 543 842, 1060 

, Postmaster-General v. (1898) , 78 T. L. B. 120 768 

(1908), 10 Rail & Canal Traffic Cas. 

234 734 

, Ross v., 20 O. L. R. 578 ; 23 O. L. R. 74 '. 1065 

, Sion College v., 70 L. J. K. B. 396 ; 650 

, Smith v., 20 O. L. R. 133 1 

London and N. W. By., Metropolitan Bd. of Works v. (1881), 17 Ch. D. 

246 ; 50 L J. Ch. 409 776 

. Skelton v. (1867) , L. R. 2 C. P. 631 719 

, Westminster Corpn. v. (1904), 1 Ch. 759; 
(1905), A. C. 426; 74 L. J. Ch. 629. .347, 

348, 350, 852, 1035 
London and S. W. Ry., Atty.-Gen. v., 69 J. P. 110 ; 3 L. G. R. 1327 ; 

21T. L. R. 220 910,911 

, Wakelin v. (1886), 12 A. C. 41; 56 L. J. 

Q. B. 229 : 627 

London, Brighton & S. C. Ry. v. Truman (1885), 11 A. C. ,45 ; 55 L. 

J. Ch. 354 698, 734, 760 

London County Council, Atty.-Gen. v. (1902), A; C. 165; 71 L. J. 

Ch. 268 351,589 

, Corsellis v. (1908), 1 Ch..l3; 77 L. J. Ch. 

120 912, 1029 

, Hull V. (1901), i K. B. 580; 70 L. J. K. B. 

364 ; 854 

V.Humphreys (1894), 2 Q. B. 755; 63 

L. J. M. C. 215 810 

, Pears v. (1911) , 105 L. T. R. 525 854 

, B. V. (1892), 1 Q. B. 190; 61 L. J. M. C. 

75 .,.. .....". .280, 281 



lii TABLE OF CASES CITED. 

PAGE 
London County Council v. South Metropolitan Gas Co. (1904), 1 Ch. 

76 ; 73 L. J. Ch. 136 683 

, Warr v. (1904), 1 K. B. 713; 73 L. J. K. 

B. 362 9, 549-550 

London Electric Lighting Co., Shelfer v. (1895), 1 Ch. 287; 64 L. J. 

Ch. 216 761 

London General Omnibus, Robinson v. (1910), 74 J. P. 161; 26 T. L. 

R. 233 1046 

London Guarantee Co., London West v. (1890) , 26 O. R. 520 310 

London Hydraulic Power Co., Charing Cross v. (1914), 3 K. B. 772; 

83 L. J. K. B. 1352 761 

London Joint Stock Bank, Sheffield v. (1888) , 13 A. C. 333 519 

, Simmons v. (1891), 1 Ch. 270; (1892) 

A. C. 201 519 

London Police Comrs., Winterbottom v. (1901), 1 O. L. R. 549. 

598, 607, 608 

■London Street Ry. y. London (1903) , 9 O. L. R. 439 905 

London Trading Co., Bechuanaland Exploration Co. v. (1898), 2 Q. B. 

658 . . . , , 519 

London Water Commissioners, Saunby v. (1906) , A. C. 110 551 

London West v. Bartram (1895) , 26 O. R. 161 307 

V. London Guarantee, 26 O. R. 520 310 

Londonderry Election Case (1869) . 1 O'M. & H. 274 235 

Long, R. f. (1888) , 59 L. T. 33 830 

Lons Point v. Anders'on, In re (1891) , 18 A. R. 401 398 

Longbottom, Nell v. (1894), 1 Q. 3. 767; 63 L. J. Q. B. 490 69, 70, 260 

V. Toronto (1896) , 27 O. R. 198 975 

Longford Election Case (1870) , 2 O'M. & H. 16 251 

Longmore v. McArthur (1910) , 19 M. R. 641 994 

Lorain, Foote v., 21 Ohio Cir. Ct. R. 319 568 

Lord V. Saco-, 32 Atl. 887 ; 87 Me. 231 976, 978 

Lorsch, Toronto v., 24 0. R. 227 907, 1048 

Louise V. Can&dian Pacific Ry., 14 M. R. 6 1032 

. White V. (1891 ) , 8 M. R. 231 1016 

Love V. Machray (1912) , 20 W. L. R. 505 962 

Low, Rust v., 6 Mass. 90 774 

Low Leyton Local Bd., Flower v. (1877), 5 Ch. D. 347; 67 L. J. Ch. 

621 974 

Lowden, Pease v. (1899) , 1 Q. B. 386 ; 68 L. J. Q. B. 239 203 

Lowestoft Corpn., Lambert v (1901) , 70 L. J. K. B. 333 947, 964 

Lucas and Chesterfield Gas & Water Bd., In re (1909), 1 K. B. 16. 

553, 563-565', .566 

V. Mason, L. R. 10 Ex. 251 273 

V. Moore (1879) , 3 A. R. 602 .......!..!... 945 

V. North Vancouver (1913) , 4 W. W. R. 1381 682 

Ludlow V. Charlton (1840) , 6 M. & W. 815 ; 10 L. J. Ex. 75 ; 4 Jur. 

657 ; 8 C. & P. 242 586 

Lucknow, Roe v. (1894) , 21 A. R. 1 951, 952, 964, 965, 996 

Luther (Tp. of) v. Wood (1872) , 19 Gr. 349 .' 671 

Lynn, R. v. (1878) , 2 T. R. 733 757 

Lyns(key, Harford v. (1899) , 1 Q. B. 852 ; 68 L. J. Q. B. 599 91, 97 

Lyon V. Fishmongers' Co., L. R. 1 A. C. 662'; 46 L. J. Ch. 68 991, 992 

Lyons v. Gulliver (1914) , 1 Ch. 631 ; 83 L. J. Ch. 281 830-832 

M. 

Macarow, Re Kelly and, 14 C. P. ,460 226 

MacArthur, The King v. (1904) , 34 S. C. R. 577 560, 561 



TABLE OF CASES CITED. liii 

PASK 

Macartney v. Haldimana (1905) , 10 O. L. R. 666 330 

MacDermptt, Corrie y. (1914) , A. C. 1056 ; 83 L. J. P. 0. 370 553 

Macdonald v. Bacup Corpn. (1911), 130 L. T, Jo. 344 587 

, Municipality of, Re (1894) , 10 M. R; 294, 382 285, 

286, 453, 513 

V. Toronto (1897) , 18 P. R. 17 412 

& Toronto, Re (1912), 27 O. L. R. 179 566, 567 

, V. Yarmouth (1898) , 29 O. R. 259 948 

Mace and Frontenac, Re (1877), 42 U. C. R. 70 191, 196, 375, 

377, 412, 1019 
Macfarlane v. St. Cesaire (1886), M. L. R. 2 Q. B. 160; 14 S. C. R. 

738 : . . . .522, 671 

Machell v. Nevison(1724), 2 Ld. Rayd. 1355 453 

Machray, Love v. (1912) , 20 W. L. R. 505 962 

Macllreith v. Hart (1907), 41 N. S. R. 351 ; 39 S. C. R. 657. . . .298, 

580, 591, 594, 715, 902 
Mack and Bd. of Audit of Stormont, &c.. Re (1911), 25 O. L. R. 121. 318 
Mackay v. Toronto (1917), 39 O. L. R. 54; 43 O. L. R. 17; (1920), 

A. C. 208 711-713 

Mackell v. Ottawa Separate School Trustees (1914), 32 O. L. R. 245.. 17 

Mackenzie v. Brantford (1884) , 4 O. B. 382 756 

Maclean t. Rudd (1908) , 9 W. L. R. 283 743, 772 

MacNamara v. Hefifernan, R. ex rel., 7 O. L. R. 289 71 

MacPherson and Toronto, Re (1895) , 26 O. R. 558 567 

Madden v. Kensington Vestry (1892), 1 Q. B. 614 ; 61 L. J. Q. B. 527. 977 

V. Nelson (1899) , A. O. 626 826 

Mager, Todd v. (1912) , 22 M. R. 136 96 

Maher, R. v. (1905) , 10 O. L. R. 102 796, 1045, 1046 

, Steele v. (1901) , 6 Can. Cr. Cas. 446 780 

Maine, Re 'Camphellford and (1914) , 50 S. C. R. 409 , 569 

Mainfleet, Re Misner and (1881) , 46 U. C. R. 457" 23 

Maisey, Hickman v. (1900),' 1 Q. B. 752 ; 69 L. J. Q. B. 511 714 

Majendie, Eliot v. (1872) , L. R. 7 Q. B. 429 739 

Major Hill Taxicab Co. and Ottawa, Re (1915), 33 O. L. R. 243. 

344,608,899, 900 

Malahide, Leslie v. (1906) 13 O. L. R. 97 ; 15 O. L. R. 4 309, 340 

Mallow, Munro v. (1911) , 2 I. R. 130 ...'.....' 586 

Maloney v. Guelph, 43 O. L. R. 213 948 

Malatt V. Mersea (1895) , 9 O. R. 611 358 

Malvern Urban D. C, Pomeroy v. (1903) , 89 L. T. 555 793 

Manchester, Agnew v. (1902) , 1 O. L. R. 9 786 

, Bayley v. (1873) , L. R. 8 C. P. 148 ; 42 L. J. C P 78 996 

, McClelland v. (1912), 1 K. B. 118; 81 L. J. K. B. 98. 

953 956 957 
, Midwood V. (1905) , 2 K. B. 597 ; 74 L. J. K. B. 884 '. . . ' 761 
, Ossalinsky and. Re (appendix to Hudson on Compensa- 
tion) 577 

, R. V. (1908) , 38 N. B. R. 424 840 

, WiUiams v. (1897), 45 W. R. 421 ; 13 T. L. R. 299 305 

. Withington v. (1893), 2 Ch. 19 ; 62 L. J. Ch. 393 755 

Manes, Wilson v., 28 O. R. 419 ; 26 A. R. 398 80, 131, 133, 185, 232 

Mangan v. Atherton (1866) , 35 L. J. Ex. 161 958, 959 

V. Fleming, R. ex rel. (1892) . 14 P. R. 458 216,' 218 

Manners v. Johnson (187^ , 1 Ch. D. 673 ; 45 L. J. Oh. 404 .... 854 

Manning v. Bergman (1915) , 32 W. L. R. 519 336, 337 

V, Winnipeg (1911) , 21 M. R. 203 330, 714 

Mansbridge v. Barnet (1909) , 73 J. P. 255 586 

Manvers, Re Preston and (1862) , 21 U. C. B. 626 365 



liv TABLE OF CASES CITED. 

PAGE 

Marceau, R. v. (1915) , 30 W. L. R. 418 . . . .' -728 

March, Ke MooM and, 20 O. L. R. 67 -217 

Marcharit, R. ex rel. Arnott v., 2 C. L. Ch. 189 . . . 231 

Mariposa, Brunker v. (1892) , 22 O. R. 120 .370 

Mai-kdale, Rieketts v. (1899) , 31 O. R. 180, 610 959-961 

Markham v. Aurora. (1901) , 3 O. L. R. 609 660, 661 

, Aurora v. (1912), 32 S. C. R. 457 : 913 

Marks v. Ford (1881) , 45 J. P. 107 797 

Marlbrirough, Re Rickey and (1907) , 14 O. L. R. 587 105, 138, 

196, 372, 378, 1018 
Marriage, Eastern Counties v. (1860), 9 H. L. C. 32 ; 31 L. J. Ex. 73: 

5, 227 

Marsh, v. Banton Oy., 39 N. W. 713 ; 75 Iowa 469 ". .' 976 

V. Fulton Cy. (1870) , 10 Wallace (U. S.) 676 521 

V. Huron College, 27 Gr. 605 '.282, 453 

; Lake Erie & Detroit Ry. v. (1904) , 35 S. C. R. 197 655 

Marshall v. Industrial Exhibition (1900), 1 O. L. R. 319; 2 O. L. R. 

62 ■ . • • .701, 719. 

, R. v., 2 Chit. R. 370 226 

MTarson v. Butler, R. ex rel. (1897), 17 P. R. 382 . 226 

Marter and Gravenhurst, In re, 18 O. R. 242 . 173' 

Martin v. Chicago, 77 N. E. 86 568 

V- GorriU (1889) , 23 Q. B. D. 139 ; 58 L. J. Q. B. 329 95 

, MoKenzie v., R. ex rel., 27 O. R. 523 . 81 

- V. Middlesex (1913) , 4 O. W. N. 682, 1540 : •. 875" 

V. Moir, R ex rel., 7 O. W. R. 300 ..:...•. 64 

& Moulton, Re (1900) , 1 O. L. E. 645 : . . .1014-1016, 1019 

, R. V. (1887), 12 O. R. 800 ..;..'.. 760' 

V. Watson,, R. ex rel. (1906), 11 O. L. R. 336. . . .97; 192, 258, 322 

Martins y. Upcher, 3 Q. B. D. 622 ; 988 

Marylehone. Bourne v. (1909), W. N. 14; 72 J. P; 306; 24 T. L. R. 

613 ; 6 L. G. R. 1141 ; 586 

Mas'on, Clementson v., L. R. 10 C. P. 209 . 180' 

, Joanisse v., R. ex rel., 28 O. R. 495 • 63 

, Lucas y., L. R. 10 Ex. 251 273 

, Tenby Corph. v. (1908) , 1 Ch. 457 ; 77-L. J. Ch.' 230 .... . . . . " 272' 

V. WaUasey Local Bd. (1876) , 58 J. P. 477 ; . . 853 

, Whitaker and. Re, 18 O. R. 63 173 

Masonic Temple and Toronto, Re (1915) , 33 O. L. R. 497 854 

Masters v. Hampshire (1915) , 84 L. J. K. B. 2194 .•.:.. 957 

, James v. (1893), 1 Q. B. 355 . .-. 808 

V. Pontypool (1878) , 9 Ch. D. 677 ; 47 L. J. Ch. 797 816 

Matchedash, Re Orillia and (1904) , 7 O. L. R. 389 717 

Mather v. Brown (1875) , 1 C. P. D. 596 ; 45 L. J. C. P. 547 103 

Mathers, Kelly v. (1915) , 31 W. L. R. 931 ; 32 W. L. R. 33 ; 25 M. L. 

R. 580 339, 512, 518 

V. Penfold (1915) , 1 K. B. 84 791 

Matheson. R. v. (1883) , 4 O. R. 559 . 754 

Matilda, Leizert v. (1897) , 29 O. R. 98 ; 26 A. R. 1 , .973, 995 

Matlock Bath; Hodge v. (1911), 75 J. P. 65 ; 27 L. R. 129; 8 L. G. 

R. 1127 ; . 586 

, Sellers V. (1885) , 14 Q. B. D. 928 -852 

Matthews, King v. (1903) , 5 O. L. R. 228 286 

Maw V. King & Albion" (1883) , 8 A. R. 249 . Q35, 994 

Maxse, Cubitt v. (1873) . L. R. 8 C. P. 704 ; 42 L. J. C. P. 278 908 

Maxwell v. Clarke (1879) , 4 A. R. 460 ;951, 969 

Mayo Election Cas'e (1857) , W. & D. 1 251" 

Maysville v. Wood (1897), 102 Ky. 263 17 



TABLE OJF CASES CITED. Iv 

Mayville, Compagnie <Je, v. Whitley (1806), 1 Ch. 788; 65 L. J. Ch. 

PAGE 

■ 729 . , 281, 282. 

McAi-thur, Longmore v. (1910) , 19 M. R. 641 , ! 994 

& Southwold, Re (1878) , 3 A. R. 295 : 1014; 1016 

McAuley, Verrett v. (1884) , 5 O. R. 313 ; 975 

McAvoy V. Rannie, 25 O. W. R. 667. 60S 

McBride, Ward v. (1911) ,24 O. L. R. 555 270 

. ^. Xork, 31 U. C: R..355 ■; -945 

McCallum, Dinnick v. (1912), 26 O. L. R. 551; 28 O. L. R. 52. . 

,354,854-856 

. . - , Elves V. (1916) , 34 W. L. R. 669 ^ 877, 878 

. ,. Sceally t. (1862) , 9 Gr. 434 522 

McCann v. Toroato (1897) . 28 O. R. 650 905, lOOO 

McCartee and Mulmer. Re (1900) . 32 O. R. 69 191, 368 

McCarthy, Lafinson v., R. ex rel. (1903) , 5 O. L. R. 338 . . 212 

, Jletropolitan Bd. of Works v., L. TT. 7 H. L. 423 559 

V. Yespra (1895) , 16 P. R. 416 974 

McCartney, Little v. (1908) , 9 W. L. R. 448 : 18 M. L. R. 323. . . .641, 1019 

McCarty, R. ex rel. Robinson v., 5 O. L. R. 638 '. -. . .68, 103 

McCatherin v. Janmer (1912) , 41 N. B. R. 367 886 

McClay, R. ex rel. Whyte v. (1889), 13 P. R. 96 225 

McCleave v. Moncton (1901) . 35 N. B. R. 296 598 

McClelland v., Manchester (1912), 1 K. B. 118; 81 L. J. K. B. 98. 

953, 956, 957 

McColl and Toronto, Re (1894) , 21 A. R. 256 562 

McCombe, Buist v. (1882), 8 A. R. 600 774 

McCormack v. Pelee (1890) , 20 O. R. 288 946, 947 

McCracken, Nash and, Re (1873) , 33 U.. G. R. 181 756, 814, 819 

& Sherborne, Re (1911). 23 O. L. R. 92 346, 347, 361 

McCuUoch V. Caledonia (1888) , 25 A. R. 417 594 

McCutchepn v. Minitonas (1912) , 20 W. L. R. 729 479 

McDonald v. Dickenson (1897) , 24 A. R. 31 952, 966 

. , y. .Lake Simeoe Ice Co. (1898) , 24 A. R. 411 ............ 709 

McDovgall V, Windsor (1900) , 27 A. R. 566 623 

McFarlane v. Coulter, R. ex rel. (1902) , 4 O. L. R. 520 216, 224 

, Dugas V. (1911) , 18 W. L. R. 701 480 

, R. V. (1897) , 17 C. L. T. Occ. N. 29 790 

McGarr v, Prescott (1902) ; 4 O. L. R. 280 950 

McGee, Staight v. (1818) , 2 Stark. 445 617 

McGillV. Licence Comrs. of Brantford (1892), 21 O. R. 665 .... .899, 900 
McGiHivray, Hislop v., 12 O. R. 749 ; 15 A. R. 687 ; 17 S. C. R. 479. 

944, 1009 

McGloghlon v. Dresden (1909) , 1 O. W. N. 74 452, 453, 454 

McGrath and Durham, Re (1908), 17 O. L. R. 514 81, 128, 

... . 381, 382, 393, 398, 405 

McGregoj y, Ker, R. ex rel.. 7 U. C. C. P. 67 . . : ... 64 

,• .R, v.. (1902) , 4 Q. L. R. 198 .". . .343, 344, 736 

V. Watford (1906) , 13 O. L. R. 10 912 

McGugan, Howarth v. (1892) , 23 O. R. 396 952 

McGuire y. Birkett, R. es rel., 21 O. R. 162 .70, 102 

V. Waterloo (1806) , 29 Que. S. C. 189 . . . 480 

McHardy v. EUice (1877) , 1 A. R. 628 934 

Mcllwraith, Miles v., 52 L. J. P. C. 17 ,. . 71 

Mclnncs v. Egremont (1903) , 5 D. L. R. 715 . ; . . . 978 

Mclntpsh, Clancy v., R. ex rel., 46 U. C. R. 98 63, 91, 21& 

& Pontypridd, Re (1891), 61 L. J. Q. B. 164 347, 808 

, Smith -V. (1906), 13 O. L. R. 118 ; 8 O. W. R. 472 985' 

MclBtyre y. Coote (1909) , 19 O. L.R. 9 ; 13 O. W. R. 1098 952 



Ivi TABLE OF CASES CITED. 

PAGE 

Melntyre v. Lindsay (1902) , 4 O. L. R. 448 1000 

McKay, Garrioch v. (1901) , 13 M. R. 404 743, 774 

McKean, Kaulbach v. (1905) , 38 N. S. R. 38 '. 227 

McKelvin v. London (1892) , 22 O. R. 70 1000 

McKenzie v. Chilliwack (1912), A. C. 886; 82 L. J. P. C. 22. .613, 627, 1080 

V. Martin, R. ex rel. (1897) , 27 O. R. 523 81 

, Mitchell .., R. ex rel. (1915) , 33 O. L. R. 196 244, 252 

McKibbon, Palmatier v. (1892) , 21' A. R. 441 ■ 907 

McKillop V. Logan (1899) , 29 S. 0. R. 702 24 

McKinney v. Nashville, 52 S. W. 781 568 

McKinnon and Caledonia, Re (1873) , 33 U. C. R. 502 413 

V. McNeil (1908) , 41 N. S. R. 503 158 

McLean, Bell v. (1862) , 9 Gr. 478 498 

, & Cornwall, Re (1871), 31 TJ. C. R. 314 297, 497, 902 

V. Howland (1909) , 14 O. W. R. 509 1017 

, Laughtenborough v., 14 U. C. C. P. 175 64 

V. Pinkerton (1882) , 7 A. R. 490 971 

V. Watson, R. ex rel., 1 C. L. J. (N. S.) 71 .71, 222 

McLellan v. Assiniiboia (1888) , 5 M. R. 127, 265 365 

McLeod V. Bathurst, R. ex rel. (1903) , 5 O. L. R. 573 212 

& Kincardine, Re (1876), 38 U. C. R. 617 , 710 

MoMahon, R. ex rel. Flanagan v., 7 L. J. 155 68, 71 

McManns v. F«rguson, R. ex rel. (1865), 2 U. C. L. J. N. S, 19 

228, 258, 261 

McMichael and Townsend, Re (1872) , 33 U. C. R. 158 1010 

McMuIlen, Clark v.. R. ex rel.. 9 U. C. R. 467 216 

V. DeLisle, R. ex rel.. 8 L. J. 291 67 

McNab, Goodison v. (1909), 19 O. L. R. 188, 214; 44 S. C. R. 187. 

479, 936, 947 

and Renfrew, Re (1905). 11 O. L. R. 180 927, 928, 929 

McNeil, Dillon v., R. ex rel. (1855) , 5 C P. 137 135 

, McKinnon v. (1908) , 41 N. S. R. 503 158 

MoNichol, Hamilton and. In re (1908) . 12 O. W. R. 1015 41 

McNiroy v. Bracebridge (1905) , 10 O. L R. 360 949 

McPhail, Firth v. (1905) , 2 K. B. 300 ; 74 L, J. K. B. 458 872 

McPhalen, Vancouver v. (1911), 45 S. C. R. 194 626, 719, 

938,' 947, 953, 954-956 
McPherson, Bathurst v. (1878), L. R. 4 A. C. 256; 48 L. J. P. C.ei. 

962, 963 
V. Mehring, 23 O. L. R. 598; 25 O. L. R. 267; 26 O. L. R. 

339 ; 47 S. C. R. 451 83 

V. Toronto, 43 O. L. R. 326 715 

McQuillan v. St. Marys (1899) , 31 O. R. 401 978 

McRae, Ford v., R. ex rel., 5 P. R. 309 71, 102 

, R. V. (1897) , 28 O. R. 569 . : 601 

McSloy V. Smith, 26 O. R. 508. ,...." 771 

McSorley v. St. John (1882) , 6 S. C. R. 531 310, 598 

McVeity, Journal Printing Co. v; (1915), 33 O. L. R. 166 303-305 

Mead v. Etobicoke (1889) . 18 O. R. 438 990 

Meadow v. Taylor (1890) , 24 Q. B. D. 717 ; 59 L. J. M. 0. 99 810 

Meaford, Arthur and. Re (1915), 34 O. L. R. 231 410 

, Hair v. (1914) , 31 O. L. R. 124 415 

, Peoples' Milling Co. and. Re (1886) , 10 O. R. 405 341, 650 

, Todd T. (1903) , 6 O. L. R. 469 551 

Mearns v. Petrolia. 28 Gr. 98 201 

Medland, Cooke v. (1909) , A. C. 229 ; 78 L. J. P. C. 76 ... 959 

Medora & Wood, Knigbt v. (1887) , 11 O. R. 138 ; 14 A R. 112 917, 923 

Meehan, In re R. v. (1902), 3 0. L. R. 567 127, 183, 1085 



TABLE OF CASB8 CITED. Ivii 

PAGE 

Mehring, McPherson v., 23 O. L. R. 598 > 25 O. L. R. 267 ; 26 O. L. R. 

339 ; 47 S. C. R. 451 88 

Melancthon Bd. of Health, Rich v. (1912), 26 O. L. R. 48 1065, 1072 

Melbourne Harbour Comrs., Union Steamship Co. v. (1884), 9 A. C. 

368 : 53 L. J. P. C. 59 977, 978 

Mellis V. STiirley (1885), 16 Q. B. D. 446; 50 J. P. 214; 55 L. J. Q. B. 

143 ; 53 L. T. 810 ; 84 W. R. 187 586 

Mellon V. King's County (1900) , 35 N. B. R. 159 310 

Memphis, Hill v., 134 U. S. 198 517 

Menard v. Bondeaux (1908), 34 Que. S. C. 335 443 

Mensch, Barber v., 157 Pa. 390 ' 774 

Mercer v. Woodgate, L. R. 5 Q. B. 26 ; 39 L. J. M. C. 21 909 

Meredith v. Peer (1917) , 39 O. L. R. 271 ; 35 O. L. R. 592 779 

Meriden v. Braden (1896) , 17 P. R. 77 329 

Merritt, Greig v. (1913) , 24 W. L. R. 328 ; 11 D. L. R. 852 961 

V. Toronto (1895) , 22 A. R. 207 349, 876 

(1912) , 23 O. L. R. 365 ; 27 O. L. R. 1 ; 48 S. C. 

R. 1 10 

Merritton v. County of Lincoln (1917) , 41 O. L. R. 6 404, 924 

Merryweaither v. Nixon (1799) , 8 T. R. 18 6 994 

, Rugby Charity v.; 11 East 876 909, 910 

Mersea, Malott v. (1885) , 9 O. R. 611 358 

, Rochester and. Re (1901) , 2 O. L. R. 435 474 

Mersey Docks v. Gibbs (1866), L. R. 1 H. L. 93; 35 L. J. Ex. 225. 

598, 709, 803, 820, 949, 996, 1.079 
Mertiyr Tydfel, Henderson v. (1900), 1 Q. B. 484; 69 L. J. Q. B. 

885 329, 880 

Metcalfe v. Smart, R. ex rel., 10 U. C. R. 89 63 

Methley, Richardson v. (1893) , 3 Ch. 510 ; "52 L. J. Ch. 943 201 

Metropolitan, Crafter v. (1866), L. R. 1 C. P. 300; 85 L. J. C. P. 132. 

948, 950 
V. HiH (1881), 6 A. C. 193; 50 L. J. Q. B. 353 . .698, 734, 760 

V. Walsh, 94 S. W. 860 567 

Metropolitan Asylum, Judd v. (1912) , 5 B. W. C. C. 420 98i6_ 

V. Kingham (1900) , 6 T. L. R. 217 587 

Metropolitan Bank, Rumball v. (1877) , 2 Q. B. D. 194 579 

Metropolitan Bd. of Works, Buccleuch v. (1872), I>. R. 5 H. L. 418; 

41 L. J. Ex. 137 40, 558, 579 

V. London & N. W. Ry. (1881), 17 Ch. D. 

246 ; 50 L. J. Ch. 409 776 

V. McCarthy, L. R. 7 H. L. 423 559 

, Stebbing v. (1871), L. R. 6 Q. B. 37; 40 

L. J. Q. B. 1 566 

, Syers T. (1877) , 86 L. T. 277 550-551 

Metropolitan Ry., Rickett v., L. R. 2 H. L. 175 558, 559, 991 

Meux V. Jacob (1875) , L. R. 7 H. L. 481 ; 44 L. J. Ch. 481 7 

Meyer, R. v., 1 Q. B. D. 173 600 

& Toronto, Re (1914) , 30 O. L. R. 426 554-555 

Meyrick, Atty.-Gen. v., 19 J. >. 515 911 

Michie and Toronto, In re (1862) . 11 C. P. 379 22, 408, 421, 431 

Michigan Central, R. v. (1907) , 10 O. W. R. 660 741 

, Schwoob T. (1905) , 5 O. L. R. 86 948 

Mid Wales Ry. Co., Bateman v. (1866), L. R. 1 C. P. 510; 85 L. J. 

C. P. 205 517 

Middagh, Connor v. (1889) , 16 A. R. 856 401, 592, 593, 1017 

, Hill V. (1889), 16 A. R. 356 592, 593 

Midland, Re Duncan and (1907), 16 O. L. R. 132.... 105, 109, 134, 

136, 188, 140, 167, 196, 369, 400, 410, 633, 1019 



Iviii TABLE OF .CASES CITED. 

PAGE 

Midland v. Withinglon L. Bd., 52 L. J/Q. B. 689 988 

Midland Ry., Beckett v. (1866) , L. R. 1 C. P. 241 573 

. Langley v., 37 L. J. Ch. 316 : 9M 

Middle Level Oomrs., Collins v. (1869), L. E. 4 C. P. 279 : . 1001 

Middlesex^ Canada Co. v. (1862) , 10 U.-C. Q. B. 73 418, 434 

& London, In re (1855) , 14 U. C. R. 334 ; 41 

, Martin v. (1913) . 4 O. W. IST. 682, 1540 875 

, North Dorchester v. (1889) ; 16 O. R. 68 935 

., Weston v., (1913), 30 O. L. R. 23 . : . . . .946, 948, 1055 

. ., Wilson, y. .(1859.)., 18 U. C. R. 348 ". : .358, 1031 

ilidwood y. Manchester (1905) , 2 K. B. 597 ; 74 L. J. K. B. 884 761 

Miles y. Mcllwraith, 52 L. J. P. C. 17 . 71 

& Richmond, Re (1869) . 28- U. C. R. 333 375, 1019 

■ ,.Rasey. (1815), 4 M. & S. 101 '. . . 820 

Mill V. Hawker (1874), 43 L. J. Ex. 129; 44 L. J. Ex 49 . . . . . . ; ... 925 

Millar, Refuge Assce. Co. v., 5 B. W. C. C. 522 ^ .: . . . 985 

Miller, Moore v., R. ex rel., 11 U. C. R. 465 70 

, R. y., 6 T. R. 268 273 

Milligan v. Harrison, R. ex rel. (1908), 16 O. L. R. 475 64, 77, 78, 

63, 98, 192, 220, 258, 326 

y. Thorn (1914) , 32 O. L. R. 195 -..■.... . ; . v.'. .;: .828, 829 

Mills y.. Freel (1912) , 23 O. W. R. 45 ; 3 O. W. N. 1240 1054 

MiUwaU Dock Co., Keen t. (1882) , 8 Q. B. D. 482 979 

, Poplar y. (1904) , 68 J. P. 339 '. . .. 1010 

Milnfe, R. y. (1895), 25 C. P. 94 601 

& Thorold, Re (1911), 25 O. L. R. 420 198, 387 

Milnes, Ingram y (1807) , 8 East 445 38 

MInitonas, McCutcheon y. (1912) , 20 W. L. R. 729 ;' . 479 

Minns v. Omemee (1902) , 8 O. E. R. 508 966-968 

Minto Y. Morrice (1912) , 21 W. L. R. 255 ; 2 W. W. R. 374 479 

Mianer v. Mainfleet, Re (1881) , 46 U. C. R. 457 '. . 23 

Misse, R. y. (1908), 7 W. L. R. 934 728 

Mi'Ssouri, .SuUivan y., 68 S. .W. 745 567 

Mitcham Common v. Cox (1911), 80 L. J. K. B. 1188; 104 L. T. 824. 345 

MitcheU, Biggs v. (1862) , 2 B.' & S. 523 740 

& Campbellford, Re (1908) , 16 O. L. R. 578 .81, 381, 386 

y. McKenEie, :R. ex rel. (1915) , 33 O. L. R. 196. . . . : 244, 252 

y. Pemtrpke (1899) , 31 O. R. 348 601-606 

, Ralph v.; 6 B. W. C. C. 678 985 

■ - . ,, Rcjherts.v. (1894) , 21 A. R. 433- 779 

V. Simpson,-25 Q. B. D. 183 ; 59 L. J. Q. B. 355 6 

y.- Staveley (1812) , 16 East 58 38 

, Walker v., R. ex rel. (1868) , 4 P. R. 218 98, 114 

V. Winnipeg (1907) , 17 M. R. 166 ; 6 W. L. R. 35 976, 980 

Mogg V. Clark (1885), 16 Q. B. D. 79 479 

Moggy, y. Canadian Pacific Ry. (1886) , 3 "M. R. 209 . . . 990 

Moir, R. ex rel. Martin y„ 7 O. W. R. 300 64 

Molison.v. Woodlands (1915), 30 W. L. R. 634; 32 W. L R. 452; 

25 M. R. 634 24, 366, 461, 463, 465-7 

Molleur, St. John y. (1908) , 40 S. C. R. 629 643 

Mols'ons Bank. y. Brockville (1880) , 31 C. P. 174 306' 

. . , Fitzgerald y. (1898), 29 O: H. 105 438, 439, 535 

Monck Election Case. (1876) . Hodgins 729 152 

Mohcton, McCleaye y. (1901) , 35 N. B- R. 296 598 

S'teeyes v. (1914) , 17 D. L. R. 560 ; . 840 

Mono, Re Henderson and (1907) , 9 O. W. R. 599 191, 196, 369 

Montgomery, Jones & Co. and Liebenthal, Re (1898) , 78 L T. 407 578 

Montreal, Ahuntsic y. (1904) , 24 Que. S. C. 291 ' 447 



TABLE OF CASES CITED. lix 

PAGE 

Montreal; Beauvais v, ^1910) , 42 S. C. R. 211 353 

• V. -Hogan (1900), 31 S. C. R. 1 562 

: ; . . V, -Muieair {ISQS)-, 28 S. C. R. 458 953 

■ v.- Ottawa- (1902) , 4 O. L. R. 67 918, 927 

- .-Pillow V. (1885), Montreal L. R. 1 Q. B. 401 ". . .• 762, 783 

, Royal Ins. Co. v. (1906) , 29 Que. S. C. 161 480 

- --v.- Standard- L.&P; Co. (1897), A. C. 527; 68 L. J. P. C. 113. 733- 

• • ,• -Stuart v.- Bank -of-, -41 -S.- C. R. -548 7 

- - ,- -St-ua-rt-r.- Olty of <189-7-) , -Q. R. 6 Q: B. 555 •. 642 

, West V. (1912),' 21- Que. K. B. 289 .■. . 292- 

Montreal, Ottawa & Western Ry., Ottawa v. (1886), 14 S. C. B. 193. 522 

Moon V. Stephens (1915) , 31 W. L. R, 832 772 

Moore, Canadian Northern Ry. v. (1916) , 31 D. L. R. 456 578 

. . V. Esquesing (1870) , 21 C P. -277 1020. 

' ^ vVHamm; R. ex reK '(M04) , 7 O. L. R. 600 212, 220, 439 

. , V. Lainbeth Water Works (1886) , 17 Q. B. D. 462 ; 55 L. J. Q. 

"B. 304 . 998 

.Lucas V. (1879), 3 A. R. 602 945 

and March, Re,-20 O. L. R. 67 217 

V. Miller, R. ex rel., 11 U. O. R. 465 ;..... 70 

.North Gwillimbury v. (1865) , 15 CJ. P. 445 524 

. •Soinbra v." (1889) ,19 A. R.'144 ' , . 994 

V. Toronto (1893) . 23 O. R..69 718 

Moosomin. Pease v. (1901) , 5 Terr. L. R. 207 ; 611- 

Moose Jaw, Hall v. (1910), 12 W. L. R. 693 ; 3 Sask. L. R. 22 345 

Morey, Hobbs v. (1904) , 1 K. B. 74 ;. 73 L. J. K. B. 47 95, 102-. 

Morgan; Stradliilg v. (1571) ; Plowd. 204 15 

Moriarity y. Harris (1905) ,. 10 O. L". R. 610 616 

Morison, Hamilton v., 18 C. P„ 228 844 

Morley, London v. (1911) , 2 K. B. 257 ;. 80 L J. K. B. 908 819 

■,' White v; (1899), 2 Q. B 34 ; 68 L. J. Q. B. 702 355 

Morrice; Minto v. (1912), 21 W. L. R. 255 ; 2 W. W. R. 374 479 

Morris, Cullen v., 2 Stark 577 '. 231 

. R.' V. (1803) ,3. East 213 ; 212. 

, Robinson v. (1909) 19 O. L. R. 633 617 

Morrisburg, Re Farlinger -and (1889), 16 O. R. 722 426, 469, 476, 477 

Morrison, Cottman v. (1914) , 7 B. W. C. C. 194 987. 

-■ V.Toronto (1906), 12 O. L. R. 222 ; 7 O. W. R. 547.. 981, 983, 984 

Morton V. Roberts, R. ex rel., 3 O. W. N. 1089: 22 O. W. R. 50; 26 • 

O. L. R. 263 58, 60, 64, 200, 209, 217, 218, 260, 322 

& St. Tbojnaa, Re (1880) , 6 A R. 323 ' .350 

V. Taylor, 57 L. J. P. 0. 79 69 

Moss, R. V. (1896) , 26 S. C. R. 332 912 

Moulton and Haldimand, Be (1885), 12 A R. 503 933. 934. .947, 1002 

, Martin and, Re (1900) , 1 O. L. R. 645 1014-1016, 1019 

Mountford, R. v.- (1906) , 2 K. B. 814 566 

Mowien, Lacey v., 7 B. W. C. O. 135 986 

Mud Lake Bridge, In re (1906), 12 O. L. R. 159 927 

Muir and Lake Erie & Northern Ry. (1914). 32 O. L. R. 150 555, 576 

Mulcair; -Montreal- v. (1898) , 28 S. C. R. 458 953- 

Mulmur. Re McCartee and (1900) . 32 0. R. 69 191, 368 

Munro v. Mallcw (1911), 2 L R. 1.30 !.■... ' 586 

Murdoek v. Kilgour (1914), 7 O. W. N. 165;. 33 O. L. R. 412; 19 

D. L. R. 878 114, 398 

Murphy, Ath'y Guardians v. (1896) , 1 I. R 65 : 587 

Murray V. Gunn (1916), 26 M. R. 345 ; S4 W. L. R. 633. 579 

• - . Heenan v-., R. ex rel. (1864), 3 P. R. 345". '..... . 260 

, R. V.,- 24-0. L. T. 183 ....;.. 897 



Ix TABLE OF CASES CITED. 

PAGE 

Murray, Rutherford v. (1911), 19 O. W. R. 975; 3 0. W. N. 29 7 

, Wilton V. (1898), 12 M. R. 35 689 

Murvey, R. ex rel. Jobartou v., 5 L. J. 87 231 

Muskoka Provincial Election Case, 4 O. L. R. 253 151; 153, 157 

Mutchenbacker v. Dominion Bank (1911) , 21 M. R. 320 448, 499 

Muttlebury, Brock v. (1911), 45 S. C R. 271 1013 

Myers, R. v. (1903) , 6 O. L. R. 120 844 

, 23 C. L. T. 286 897 

Mykel v. Doyle (1880) , 45 U. 0. R. 65 713 

Mytton V. Duck (1886), 26 U. 0. R. 61 912, 917 

N. 

Napanee, Re Allen and (1902) , 4 O. L. R. 582 1043 

Re Cartwright and (1905), 11 O. L. R. 69 194, 195, 

196, 372, 373, 406, 412, 1019 

(1906) , 8 O. W. R. 65 407 

(1910) , 1 O. W. N. 502 495 

Niash and McOracken, Re (1873), 33 U. C. R. 181 756, 814, 819 

V. Rochford Rural D. O. (1916) , 1 K. B. 284 925 

Nashville, McKinney v., 52 S. W. 781 568 

National Telephone Co. v. Baker (1893), 2 Ch. 186: 82 L. J. Ch. 699. 734 
Naylor, Slattery v. (1888), 13 A. C. 446; 57 L. J. P. C. 73. . .353, 757, 861 

Neaveisou v. Peterboro (1901) , 1 Ch. 22 1043 

Nell V. Longbottom (1894) , 1 Q. B. 767 ; 63 L. J. Q. B. 490 ... .69, 70, 260 

Nelson, Johnston v. (1890) , 17 A. R. 19 921 

, Madden v. (1899) , A. C. 626 ; 826 

, Osgoode V. (1872") , L. R. 5 Q. B. 636 ; 41 L. J. Q. B. 329 877 

. West Kootenay v. (1906) , B. C. R. 34 ; 3 W. L. R. 239 .... . 784 

Nelson Coke Co. v. Pellatt (1902) , 4 O. L. R. 481 292 

Nepean, Cleary and. In re (1907) , 14 O. L. R. 392 81 

, Ottawa V. (1910), 16 O. W. R. 969; 17 O. W. R. 1051; 2 O. 

W. N. 49, 480 42, 46 

Nettleton v. Prescott, 16 O. L. R. 538 ; 21 O. L. R. 561. . .598, 619, 626, 627 

Neville v. Kelly (1862), 12 C. B. N. S. 740 688 

V. Ross (1872) , 22 U. C. C. P.-487 1060 

Nevison, Machell v. (1724) , 2 Ld. Rayd. 1355 453 

New Brunswick Ry., Levesque v., 29 N. B. R. 588 747 

Hamburg v. New Hamburg (1910), 1 O. W. N. 595 643, 658 

, Re Ritz and (1902) , 4 O. L. R. 639 412 

Haven, Hemming v. (1910) , 82 Conn. 661 ; 74 Atl. 892 961 

Lis'kearKl, Bucke v. (1909) , 1 O. W. N. 123 ; 14 O. W. R. 841 768 

River Co., Hertfordshire Cy. CI. v. (1904), 2 Ch. 513; 74 L. J. 

Ch. 49 991 

. Hill V. (1868) , 9 B. & S. 303 1000 

York & N. H. Ry., Bridgeport v., 36 Conn. 255 ... ! 448 

Westminster v. Brighouse (1892), 20 S. C. R. 520 571, 947 

Newark, Domestic Telegraph Co. v. (1887) , 49 N. J. Law 334 359 

Newburgh, Re (1907) , 10 O. W. R. 541 919 

Re Fitzmartiu and (1011), 24 O. L. R. 102 87, 386 

Newbury R. CI., Farquhar v. (1908) , 2 Oh. 586 912 

(1909) , 1 Ch. 12 ; 78 L. J. Oh. 170 .... 911 
Newcastle, Atkinson v. (1877) , 2 Ex. D. 441 ; 46 L. J. Ex. Oh. 775.690, 

721, 811, 947 

, . L. R. 6 Ex. 404 232 

v. Worksop U. 0. (1902) , 2 Ch. 145 ; 71 L. J. Ch. 487 842 

Newell V. Richmond (1905) , 28 Que. S. C. 406 646 



TABLE OF CASES CITED. Ixi 

PAGE 
Newlngton Local Bd. v. Cottingham Local Bd. (1879), 12 Ch. D. 725 ; 

48 L. J Ch. 226 776 

Newman, In re (1876) , 3 Ch. D. 494 38 

, Innes v. (1894) , 2 Q. B. 292 ; 63 L. J. M. C. 198 758 

Newmarket, Cowley v. (1892), A. C. 345; 63 L.J. Q. B. 63. .947, 963, 1011 
, London v. (1912), 20 O. W. R. 929; -3 O. W. N. 565; 1 

D. L. R. 244 ; 2 D. L. R. 244 414, 641 

Newth, Ford v. (1901), 1 K. B. 683 ; 70 L. J. IC. B. 459 70, 292, 587 

Niagara Falls, Glynn v. (1913) , 29 0. L. R. 521 ; 31 O. L. R. 1. . . .953, 966 

Niagara Falls Park, Re (1887) , 14 A. R. 65 544 

. Graham v. (1896) , 28 O. R. 1 719 

Nichol an4 Alnwick, Re (1877) , 41 U. C. R. 577 418, 525, 1037 

NichoUs V. Britton Ferry (1915) , 8 B. W. C. C. 42 987 

Nicholson v. Bradfield Union (1866), L. R. 1 Q. B. 620: 30 J. P. 459 ; 

35 L. J. Q. B. 176; 14 L. T. 830; 13 W. R. 731 586 

V. Fields, 7 H. & N. 810 70 

, Taylor v. (1915) , 8 B. W. 0. C. 114 987 

Nice) V. Beaumon't (1884) , 53 L. J. Ch. 853 1043 

Nixon, Merryweather v. (1799) , 8 T. R. 186 994 

Noakes, Pouting v. (1894) , 2 Q. B. 281 771 

Noble V. Portsmouth, 30 Atl. 419 ." 978 

V. Turtle Mountain (1905), 15 M. R. 519; 2 W. L. R. 144. .971, 979 

Nokes V. Islington (1904) , 1 K. B. 610 ; 73 L. J. K. B. 100 355 

Norfolk V. Roberts (1913) , 28 O. L. R. 593 ; 50 S. C. R. 283 286, 

326, 637-9, 644 

Norfolk County Council. Reg. v. (1891) , 60 L. T. Q. B. 379 448 

• Norfolk Voters' List, Re (1908) , 15 O. L. R. 108 79, 86 

Norris T. Smith, 10 A. & E. 188 ; 50 R. R. 374 978 

North, People ex rel. Conliss v. (1878) , 72 N. Y. 124 194 

North Bay. Carr v. (1913) , 28 O. L. R. 623 23, 120, 634 

Bierley Union, Haigh v. (1858). 2S L. J. Q. B. 62; 23 J. P. 
195; 31 L. T. (O. S.) 213; 5 Jur. (N. S.) 511; 6 W. R. 

(579 . . : 586 

Bruce Election Case (unreported) 158 

Cayuga, Great Western v. (1872) , 23 C. P. 31 341, 642 

Dorchester v. Middlesex (1889) , 16 O. R. 68 935 

Durham Election Case (1874) , 2 O'M. & H. 159 '. 252 

Easthope, Gibson v. (1894) , 21 A. R. 504 ; 24 S. C. R. 708 23 

, Robertson and. In re (1888), 15 O. R. 423; 16 A. 

R. 214 23 

Gower L. O., Re, 4 O. W. N. 1177; 24 O. W. R. 489; 25 O. W. 

R. 224 ; 5 O. W. N. 249 105, 144, 385 

Grey Provincial Election Case (1902), 4 O. L. R. 286 . .151, 152, 176 

Gwillimbury v. Moore (1865) , 15 C. P. 445 524 

Hampton St. Ry., Dudley v. (1909), 202 Mass. 443; 89 N. E. 

25 961 

Norfolk Election Case, 1 O'M. & H. 241 251, 252 

Norwich and Norwich, In re (1878) , 44 U. C. R. 34 . . : 42 

. Thomas v. (1905) , 9 O. L. R. 670 948, 951 

Ontario Election Case, Hodgins 785 252 

Shore Ry. Co. v. Pion (1889) , 14 A. C. 602 551, 571 

Staffordshire v. Dale, 21 L. J. M. C. 147 990 

Toronto, Toronto & Niagara Power C!o. v. (1912), A. C. 834; 

82 L. J. P. C. 14 ; 25 O. L. R. 475 767 

Vancouver, Jackson v. (1913) , 19 B. C. L. R. 147 573 

, Lucas V. (1913) , 4 W. W. R. 1381 682 

Ferry & Power Co. v. Buntoury (1911), 17 W. L. R. 

450 ; 16 B. C. R. 170 704-5 



Ixii TABLE QF CASES CITED. 

PAGE 

North Bay Victoria Election Case (1874) , Hodgins 702 235 

North-Eastern Ey., Holmes v. (1869) , L. R. 4 Ex. 254 701 

, Hull V. (1915), 84 L. J; Ch. 905 ., 910 

North-Western Grana;ries, Da-vis v., 48 N. E. 1058 ; 170 111. 595 567 

RaUway and Tp. of Nottawasaga (1888), 16 A. R. 62. 671 

Northallerton Election Case (1869), 1 O'M. & H. 167 235, 251, 252 

Northcote v. Pulsford (1875) , L. R. 10 C. P. 4Y6 ; _44 L. J. C. P. 217. . * 113 
Northern Counties and Vancouver City, Re (1901) , 8 B. C. R. 338; . . 573 • 

Northumberland and Cobourg, In re (1860), 20 U. C. R. 283 41 

Norwalfe, Gibson v., 13 Ohio Cir. Ot. R. 428 568 

Norwich, Re Cooke and (1889) , 18 O. R. 72 423 

,- Election Case (1870) , L. R. 6 C. P. 147 ; 40 L. J. C. P. 58. . . 234 

, North Norwich and, In re (1878) . 44 U. C. R. 34 42 

, R. V. (1882) , 30 W. R. 752 ; 46 J. P. 308n 586 

N'otre Dame de Bonsecours, Canadian Pacific Ry. v. (1899) , A. C. 367. 

. 784, 788, 826 

Nottawasaga and North-Western Ry., Re (1888) , 16 A. R. 52 . '. 671 

Nova Scotia Car Works, Halifax v. (1914), A. C. 992 ; 84 L. J. P. C. 

17 492 

Nuneaton v. General Sewage Co. (1875), L. R. 20 Eq. 127; 44 L. J. 

Ch. 561 584 

Nunn, R. v. (1884), 10 P. R. 395 759, 760, 790 

(1905') , 15 M. R. 288 352, 796 

Nuttall V. Pickering (1913) , 1 K. B. 14 ; 82 L. J. K. B. 36 830 

Nutton V. Wilson (1889) , 58 L. J. Q. B., 443 , . 70 

O. 

Oak Bay v Gardner (1914) . 27 W. L. R. 960 .'808, 818 

Oakland, Hatch and, Re (1910) , 19 M. R. 692 115, 191 

, Smith V. Township of (1874) , 24 C. P. 295 459 

Oakville v. Andrew (1905) , 10 O. L. R. 709 309 

O'Brien v. Cogswell (1890) , 17 S. C. R. 424 479, 788 

V. Halifax, 19 N. S. R. 393 979 

V. Woburn (1904) , 84 Mass. 598 950 

O'CarroU v. Hastings (1905) , 2 I. R. 590 69 

O'Connor and Fielder, Re (1895) , 25 O. R. 568 580 

V. Hamilton (1904) , 8 O. L. R. 399 .6, 981 

(1905), 10 O. L. R. 536; 6 O. W. R. 227. . . .983, 984 

O'Donnell v. Broomfield, R. ex rel., 5 O. L. R. 596 68, 91, 103 

V. Clare County CI. (1913) , 47 I. L. T. 41 997 

Ofeen V. Rochford R. C. (1906) , 1 Ch. 342 ; 75 L. J. Ch. 348 911 

Ogle, R. V. (1910) , 15 W. L. R. 325 , 897 

Ogilvy, Caledonian Ry. v., 2 Macq. 229 559 

O'Hare. R. ex rel Coleman v., 2 P. R. 18 71, 72, 102, 215 

Ohio V. Kerth, 30 N. E, 298 568 

Oldham, Austerberry v. (1885) , 28 Ch. D. 750 .908, 909, 910 

, R. v., L. R. 4 Q. B. 290 66 

Oliver v. Horsham (1894) , 1 Q. B. 332 ; 63 L. J. Q. B. 181 998 

cfe Ottawa, Re (1893), 20 A. R. 529 ....' 437 

, Pittard v. (1891) , 1 Q. B. 474 ; 60 L. J. Q. B. 219 270 

Omemee, Minus v. (1902) . 8 O. L. R. 508 966-8 

O'Neil V. Harper (1913) . 28 O. L. R. 635 912, 992 

V. Windham (1897) , 24 A. R. 341 952, 968, 969 

Onondaga. Re Armour and (1907), 14 O. L. R. 608. .135, 369, 390,410, 1019 

Ontario, Grierson v., 10 U. C. R. 626 ; 408 

Ontario Pflwef Co. and Stamford, Re (1914), 30 O. K R. 378 656 

Ontario & Quebec Ry., Toronto v. (1892) , 22 O. R. 344 671 



TABLE OF CASES CITED. IXUl 

PAGE 

Oquawke, Coquard v., 192 111. 355 517 

Orangeville Local Option By-law, Ee (1910), 20 O. L. R. 476 82, 

83, 174, 396, 398 

Ord€, R. ex rel. Ingham v. (1830) , 8 A. & E. 420n 223 

O'ReiUy, BartliJEe v., R. ex rel., 8 A. R. 617 217 

V. Charlton, 10 U. C. L. J. N. S. 105 : 217, 218 

Organ v. Toronto (1893) , 24 O. R. 318 780, 1000 

Original Hartlepool Collieries Co. v. Gibb (1877), 5 Ch. D. 713 1046 

Orillia, Black v. (1913) , 5 O. W. N. 67 661 

, Hickey and, Re (1908), 17 O. L. R. 317 145, 164, 165, 

189, 190, 194, 197, 199, 633 

& Matchedash, Re (1904) ,- 7 O. L. R. 389 717 

, Quinn v. (1897) , 28 O. R. 435 778, 814 

Orleans v. Jefferson & L. P. Ry., 26 So. 278 567 

O'Rourke v. Commissioner for Railways (1890) , 15 A. 0. 371 579 

Orr, Fleuty v. (1906) , 18,0. L. R. 59 997 

Orr-Ewing v. Colquhoun, 2 A. C. 582 784 

Orton, R. v. (1878) , 14 Cox C. C. 226 781 

Osborne, Re Devitt and (1911) , 18 W. L. R. 662 407, 408 

V. Kingston (1893) , 23 O. R. 383 787 

Osgood V. Nelson (1872) , L. R. 5 Q. B. 636 ; 41 L. J. Q. B. 329 877 

O'Shea v. Letherby, B, ex: rel. (1908), 16 O. L. R. 581,. . . 63, 72, 

79, 98, 192, 220, 225, 227, 327, 652 

Oshkosh, Alexian v., 70 N. W. 162 568 

Oslatt V. Southampton (1880) , 16 Oh. D. 143; 50 L. J. Ch. 31 239 

Osier, R. v. (1872) , 32 U. C. R. 324 340, 358 

Ossalinsky and Manchester, Re (appendix to Hudson on Compensa- 
tion) 577 

Ostrom and Sidney, Re (1888) , 15 A. R. 372 371, 1018, 1022 

Oswaldwistle, Passmore v. (1888) , A. C. 387 ; 67 L. J. Q. B. 635 947 

Otonabee, Greystock v. (1855) , 12 U. C. R. 458 345 

Ottawa, Baskerville and. Re (1892), 20 A. R. 108 .571, 1000 

, Bronson and, Re (1882), 1 O. R. 415 544, 546 

, Canada Atlantic v. (1885) , 8. O. R. 201 ; 12 A. R. 234 ; 12 

S. C. R. 365 365, 368, 400, 641, 671 

, Carleton and. Re (1897), 24 A. R. 409; 27 S. C. R. 606. .622, 623 

, Derinzy v. (1887), 15 A. R. 712 690 

, Dwyre v. (1898) , 25 A. R. 121 274 

, Faulkner v. (1909) , 41 S. C. R. 190 695-698 

, German v. (1917) , 56 S. C. R. 80 972 

, Halladay and. Re (1907), 14 O. L. R. 458; 15 O. L. R. 65 . .17, 23 

, Hill V. Taylor and (1904) ,9 O. L. R. 643 905 

, Jones and, Re. (1907) , 9' A. R. 323, 660 849 

, Lamb V. (1904) . 4 O. W. R. 408 645 

, Major Hill Taxicab Co. and, Re (1915), 33 O. L. R. 243. 

344, 608, 899, f.'OO 

, Montreal v. (1902) , 4 O. L. R. 67 918, 927 

V. Montreal, Ottawa & Western Ry. (1886), 14 S. C. R. 193 . . 522 

Municipal Election, Re (1895), 26 O R. 106. ." 159, 173, 191 

,v. Nepean (1910), 16 O. W. R. 969; 17 O. W. R. 1051; 2 O. 

,W. N. 49, 480 42, 46 

, Oliver and, Re (1893) , 20 A. R. 529 437 

, Ottawa Electric Light Co.. y. (1906), 12 O. L. R. 290 ; 8 O. . 

W. R. 204 352, 473, 474, 1076 

V. Ottawa Gas Co. (1902) , 5 O. L. R. 246 ■. 329,- 330 

, .Messier v. (1917) , .41 O, L. R. 205 1000^ 1001 

Ottawa Electric, Hull Electric v. (1902), A. C. 237 ; 71 L. J. P. 0.- 58. 732 



Ixiv TABLE OF CASES CITED. 

PAGE 
Ottawa Electric Light Co. v. Ottawa (1906), 12 O. L. R. 290; 8 O. W. 

R. 204 352, 473, 474, 1076 

Ottawa Gas Co. v. Ottawa (1902) , 5 O. L. R. 246 329, 330 

Ottawa Separate School Trustees', Mackell v. (1914), 32 O. L. R. 245. 17 

0(7to V. Roger (1917) , 40 O. L. R. 381 24, 776 

Ouellette v. Cantin (1911) , 40 Que. S. O. 92 260 

Owen Sound, Bell Telephone Co. v. (1904), 8 O. L. R. 74 ; 4 O. W. 

R. 69 350, 733, 735, 766. 1023, 1035 

, Brown and. Re (1907), 14 O. L. R. 627 561, 566, 1020 

, Lawrence v. (1902) , 1 O. W. R. 559 688 

, Local Option By-law. Re (1915) , 35 O. L. R. 48 392 

, Poison V. (1899) , 3 O. R. 6 .'. 643 

, Sinclair &, Re (1906), 8 O. W. R. 460; 12 O. L. R. 
488.; 13 O. L. R. 447 ; 39 S. C. R. 236.167, 181, 195, 196. 197 

, Stoddart v. (1913) , 27 O. L. R. 221 145, 165-7, 199 

Oxford, Carlyle v. (1914) , 30 O. L. R. 413 329 

V. Crow (1893), 3 Ch. 535; 69 L. T. 228; 42 W. R. 200; 8 R. 

R. 279 587 

, Julius V. (1880) , 5 A. C. 214 ; 49 L. J. Q B. 517 7, 1009 

, R. V. Trustees, &c., of, 12 A. & E. 427 933 

, Revell and, Re (1877) , 42 U. C. R. 337 408 

, Woodstock V. (1910) , 22 O. L. R. 151 ; 44 S. 0. R. 603 38 

, Oxfordshire, R. v. (1830) , 1 B. & Ad. 301 784 



Pacific Lumiber Agency v. Imp. Timber Co. (1914), 7 W. W. R. 260. . 6 

Paddington, Boyce v. (1903) , 1 Ch. 109; 72 L. J. Ch. 28, 685 589, 590 

Paducah, Sehauf's Admn. v., 106 Ky. 228; 50 S. W. 42 720 

Pafford and Lincoln. Re (1864) , 24 U. C. R. 16 439 

Page V. Ratlifle (1896) , 76 L. T. 68 555 

Paignton Urban CI.. Kirtv v. (1913) , 1 Ch. 337 ; 82 L. J. Ch. 198 909 

Paine v. Strand Union (1846) , 8 Q. B. 326 ; 15 L. J. M. C. 89 ; 10 

Jur. 308 586 

Paisley, Elderslie v. (1884) , 8 O. R. 270 45, 494 

Palmatier v. McKibbon (1892) , 21 A. R. 441 907 

Palmerston, Clarke v. (1882) , 6 O. R. 616 426, 479, 484, 485 

, Hunt V. (1902) , 5 O. L. R. 76 706 

, Waterous v. (1890), 20 O. R. 411; 19 A. R. 47; 21 S. 

C. R. 556 705 

Pang Sing v. Chatham (1909), 14 O. W. R. 1161; 16 O. W. R. 338. . 850 

Papworth v. Batters'ea, No. 2 (1912) , 1 K. B. 583 958 

Paradis v. The Queen (1887) . 1 Ex. C. R. 191 7 

Paris, Baker v., 10 U. C.'R. 621 889 

Park, Harmon v. (1881) , 6 Q. B. D. 323 ; 7 Q. B. D. 369 97, 226 

V. Street, R. ex rel. (1905) , 1 W. L. R. 202 212 

Park Commissioners, Mayor of Detroit v. (1884), 44 Mich. 602 444 

Parkdale, Harvey and. Re (1888) , 16 O. R. 372 571 

,v. West (1887) . 12 A. C. 602 ; 56 L. J. P. C. 66 551, 571 

Parke, Canadian Pacific Ry. v. (1899), A. C. 535; 68 L. J. P. C. 89. 

698, 760 

Parker, Hurst v., 1 B. & Aid. 92 989 

V. Pitt^urgh, 8 C. P. 517 377 

Parks V. Canadian Northern Ry. (1911) , 21 M. R. 103 747 

Parry Sound, Pirie v., 11 O. W. R. 11 1054 

Parsons v. Eastnor (1915) , 34 O. L. R. 110 579 

y. London (1911) , 25 O. L. R. 172, 442 286, 325, 326, 636 



TABLE OP OASES CITED. Ixv 

PAGK 

Parton v. WiUiams, 3 B. & Aid. 330 617 

Pasmore v. Oswaldwistie (1898) , A. C. 387 ; 67 L. J. Q. B. 635 947 

Patchell V. Baikes (1904), 7 O. L. E. 470. .286, 324, 325, 569, 570, 644, 903 

Paterson v. Blackburn Corpn. (1892) , 9 Times L. R. 55 1001 

Patterson v. Central Canada L. & S. Co. (1898) , 29 O. K. 134 787 

V. Fanning (1901) , 1 O. L. R. 421 ; 2 O. L. R. 462 771 

, Scobt V. (1908) , 17 O. L. R. 270 365 

V. Vance, E. ex reL (1871) , 5 P. R. 334 222 

. Victoria v. (1899) , A. C. 615; 68 L. J. P. 0. 128 924 

Pattick. De Prato v. (1907) , A. C. 153 ; 96 L. T. 398 889 

Payme, R. v. (1818) , 2 Ch. 369 212 

Payne. Dovaston v., 2 H. Bl. 527 ; 3 R. R. 497 913 

, R. v., 35 L. J. M. C. 170 1049 

Pears v. London County CI. (1911) , 1(« L. T. R. 525 854 

Pearsall v. Brierley (1883) , 11 Q. B. D. 735 ; 9 A. C. 595 573 

Pearson. Calloway v. (1880) , 6 M. R. 364 202 

Pease v. I^owden (1899) , 1 Q. B. 386 ; 68 L. J. Q. B. 239 203 

T. Moosomin (1901) , 5 Terr. L. R. 207 611 

, R. Y., 4 B. & Ad. 3Q 963 

Peate, Gower v. (1876) . 1 Q. B. D. 321 ; 45 L. J. Q. B. 446 968 

Peck and Amellasburg, Re (1888) , 12 P. R. 664 407 

(1889) , 17 O. R. 54 424, 435 

and Gait, Re (1881) , 46 U. C. R. 211 411, 716, 844 

and Peterborough, Re (1873) , 34 U. C. R. 129 1003 

Peddle, R. ex rel. Armour v. (1907), 9 O. W. R. 393; 14 O. L. R. 339. 

169, 193, 220 

Pedlow V. Renfrew, 27 0. R. 611 912 

Peer, Meredith v. (1917) , 39 O. L. R. 271 ; 35 O. L. R. 592 779 

Pelchat, Ex parte (1915) , 26 Can. Cr. Cas. 76 783 

Pelee, McCormaek v. (1890) , 20 O. R. 288 946, 947 

Pelkey, R. v. (1913) , 21 Can. Cr. Cas. 387 781 

PeUatt, Nelson Coke Co. v. (1902) , 4 O. L. R. 481 292 

Pells V. Boswell and Toronto (1886) , 8 O. R.'680 350 

Pember, R. v. (1912) , 2 D. L. R. 542 ; 3 D. L. R. 347 897 

Pembroke v. Canada Central (1882) , 3 O. R. 503 1047 

, Hewison v. (1884) , 6 O. R. 170 1010 

, Mitchell V. (1899) , 31 O. R. 348 601-5 

& Renfrew, Re (1910) , 21 O. L. E. 366 933, 989, 990, 1001 

Penfold, Mathers v. (1915) , 1 K. B. 84 791 

Penley, Barber t. (1S93) , 2 Ch. 447 ; 62 L. J. Ch. 623 830 

People V. Rock Island, 215 lU. 488 1047 

People ex rel. Conliss v. North (1878) , 72 N. X. 124 194 

Cunningham v. Eober, 35 N. Y. 629 642 

, Woods V. Crissey (1883), 91 N. Y. 617 194 

Peoples' Milling Co. & Meaford, Re (1886) , 10 O. R. 405 341, 650 

Peoria Water Works v. Peoria Ry. Co., 181 Fed. R€p. 990 735 

Percy v. Worth, R. ex rel. (1893), 23 O. R. 688 217, 218, 220 

Perry v. Clergue (1908) , 5 O. L. R. 357 ; 2 O. W. R. 89 703 

V. Whitby (1855) , 13 U. C. R. 567 408 

Perth, Re Stratford & Huron Ry. & (1876) , 38 U. C. R. 112 671, 672 

Peterborough, Boulton v. (1859) , 16 U. C. E. 380 368 

, Croft V. (1856) , 5 C. P. 35, 141 947, 1009 

, Denne and, Ee (1886) , 10 O. R. 767 650 

V. Edwards (1880) , 31 C. P. 231 306 

, Grand Trunk and. Re (1882) , 8 S. C. E. 76 672 

, Laplante and, Ee (1884) , 5 O. E. 634 1016 

, Neaveison v. (1901) , 1 Ch. 22 1043 

, Peck and, Ee (1873) , 34 U. C. E. 129 1003 

M.A. — E 



Ixvi TABLE OF CASES CITED. 

FA6E 
Peterborough & Peterborough Electri-c Light Co., Re (1915), 8 O. W. 

N. 564 : 579 

, Scott and, Re (1867) , 26 U. C. R. 36 857 

, Talbot and. Re (1906) , 12 O. L. R. 358 345, 355 

, Victoria v., 15 A. R. 620 935, 943 

, Woodruff V. (1862) , 22 U. C. R. 274 685 

Peters v. London (1846), 22 U. C. R. 543 842, 1060 

Petman v. Toronto (1897) , 24 A. R. 53 358 

Petrie, R. v., 4 El. & Bl. 737 ; 24 L. J. Q. B. 167 908, 909 

Petrolia, Mearns v.. 28 Gr. 98 •• 26l 

, Ray V. (1874) , 24 C. P. 73 950 

Pettigrew v. Pettigrew (1904) , 207 Pa. 313 ; 64 L. A. R. 179 757 

Pettit V. Canadian Northern Ry. (1913) , 23 M. R. 223 6 

Petty, Grand Junction Canal Co. y., 21 Q. B. D. 273 ; 57 L. J. Q. B. 

572 .' 909, 911 

Phelps V. Upton Snodsbury Highway Bd. (1885) , 49 J. P. 408 587 

Philbrick v. Smart, R. ex rel., 5 P. R. 323 64 

PhiUips V. BeUeville (1905) , 9 O. L. R. 732 286, 637 

V. GofE (1886) , 17 Q. B. D. 814 ; 56 L. J. Q. B. 512 •. . . 173 

V. Harrow, 93 Iowa 92 ; 61 N. W. 343 17 

V. Scales Mound, 63 N. E. 180 ; 195 111. 353 567 

Pickard v. Sears, 6 Ad. & E. 469 476 

V. Smith, 10 C. B. (N. S.) 470 968 

Pickering, Coe and. Re (1865) , 24 U. C. R. 439 375, 1019 

, Gerow and. Re (1906) , 12 O. L. R. 545 245 

T. James (1873), L. R. 8 C. P. 489; 42 L. J. O. P. 217. 

231, 232, 598 

. Nuttall V. (1913) , 1 K. B. 14 ; 82 L. J. Q. B. 36 830 

Pickett and Wainfleet, Re, 28 O. R. 464 191, 194, 196, 375 

Pictou v. Goldert (1S93) , A. C. 524 ; 63 L. J. P. C. 37 953 

Piddington v. Riddell, R. ex rel. (1867) , 4 P. R. 80 69, 71, 224, 228 

Pierce v. Bartrum, Cowp. 269 340" 

Pigott V. Bell, 25 O. W. R. 265 1022 

Pilkington v. Riley, 3 Ex. 739 978 

Pilliner, Scott v. (1904) , 2 K. B. 855 349, 355 

Pilling, Calder v., 14 M. & W. 76 1031 

Pillow V. Montreal (1885), Montreal L. R. 1 Q. B. 401 762, 783 

Pinkerton, McLean t. (1882) , 7 A. E. 490 971 

Pion, North Shore Ry. v. (1889) , 14 A. C. 602 551, 571 

Piper V. Chappell (1845) , 14 M. & W. 624 1059 

, Hamilton v., R. ex rel., 8 P. R. 225 63 

Pipestone, TurnbuU v. (1915) , 24 D. L. R. 281 ; 31 W. L. R. 595 573 

Pipher V. Whitchurch (1917) , 39 O. L. R. 244 981, 982 

Pirie & Dundas, Re (1869) , 29 U. C. R. 401 649 

V. Parry Sound, 11 O. W. R. 11 1054 

Pitt, :r. v., 3 Burr. 1335 243 

Pittard v. Oliver (1891) . 1 Q. B. 474 ; 60 L. J. Q. B. 219 270 

Pittsburg, Bryant & Tp. of. Re (1855) , 13 U. C. R. 347 458 

Pittsburgh, Parker v., 8 C. P. 517 377 

Plant, R. ex rel. Seymour v. (1904) , 7 O. L. R. 467 220 

Plaritza V. Glasgow Corpn. (1910) , S. C. 786 958 

Plath V. Grand Forks (1904) , 10 B. C. R. 301 746 

Playford v. United Kingdom, &c. (1869), L. R. 4 Q. B. 706; 38 L. J. 

Q. B. 249 583 

Plummer, R. v., 30 U. C. R. 41 721 

Plympton, R. v., 2 Ld. Rayd. 1377 ; 4 A. & E. 2nd fed. 909 243 

, Smith V. (1885) , 12 O. R. 20 573 

Point Edward and Tp, of Sarnia, In re (1879) , 44 U. C. R. 461 41 



TABLE OF CASES CITED. Ixvii 

PAGE 

Pointe Gatineau v. Hanson (1901) , 10 Que. K. B. 346 645, 663 

Pointon v. Hill (1884) , 12 Q. B. D. 306 ; 58 L. J. M. C. 62 791 

Pollard V. Prosser, R. ex rel. (1859) , 2 P. R. 330 11 

Poison V. Owen Sound (1899) , "S O. R. 6 643 

Pomeroy v. Malvern Urban D. C. (1903) , 89 L. T. 555 793 

Pon Yin v. Edmonton (1915) , 31 W. L. R. 402 609 

Ponsford, R. ex rel. Roberts v. (1902) , 3 O. L. R. 410 218, 219, 228 

22 C. L. T. Occ. N. 148 224 

Pontiac v. Ross (1890) , 17 S. C. R. 406 522 

Ponton V. Winnipeg (1909) , 41 S. C. U. 366 '. 330 

Pontypool, Masters v. (1878) , 9 Ch. D. 677 ; 47 L. J. Oh. 797 816 

Pontypridd, Mcintosh and, Re (1891) . 61 L. J. Q. B. 164 347, 808 

, Taff Vale Ry. v. (1905) , 93 L. T. 126 911 

Poole V. Huskinson, 11 M. & W. 827 908, 909, 910, 911 

Pooley, Athenaeum Life Ins. Oo. v., 28 L. J. Ch. 119 475 

Pope, R. V. (1906) , 4 W. L. R. 278 349, 877 

Poplar V. MillweU Dock Co. (1904), 68 J. P. 339 1010 

Port Arthur v. Fort William (1898) , 25 A. R. 522 ^ 340 

, Jones V. (1888) , 16 O. R. 474 358 

Port Oarling, Sutton v. (1902) , 3 O. L. R. 445 857 

Port Colborne, Roach v. (1913) , 29 O. L. R. 69 950 

Port Hope, Helm v. (1875) , 22 Gr. 273 641, 699 

Port Whitby v. Whitby, 18 U. 0. R. 40 928 

Portage la Prairie, Re Shaw and (1910), 20 M. R. 469; 14 W. L. R. 

' 542 115, 370, 373, 374 

Porter, R. ex rel. Boyce v. (1915) , 33 O. L. R. 575 216, 217 

Portland, Wright v., 118 Mich. 23 ; 76 N. W. 141 989 

Portslade, Baron v. (1900) , 2 Q. B. 588 ; 69 L. J. Q. B. 899 954 

Portsmouth, Noble v., 30 Atl. 419 . . .' 978 

Portugue.se Consolidated Copper Mines, In re (1890), 45 Ch. D. 16; » 

63 L. T. 423 ; 39 W. R. 25 ; 2 Meg. 249 587 

Postmaster-General, Croyden v. (1910) . 8 L. G. R. 1005 734, 768 

V. Hutchings (1916), 1 K. B. 774; 85 L. J. K. 

B. 1008 '. 768 

V. London (1898) , 78 T. L. R. 120 "; 768 

(1908), 10 Rail. & Canal Traffic Oas. 

234 734 

V. Tottenham, 8 L. G. R. 791 734 

Pothard v. Clarke (1879) , 5 C. P. D. 253 ; 49 L. J. C. P. 474 95 

Potter, R. V. (1839) , 11 A. & E. 3 223 

V. Welch & Sons (1914), 7 B. W. 0. C. 738; 83 L. J. K. B. 

1852 ; (1914) , 3 K. B. 1020 ; ll2 L. T. 7 ; 30 L. T. R. 664. 986 

Pouting V. Noakes (1894) , 2 Q. B. 281 . . .' 771 

Pow V. W. Oxford (1908) , 13 O. W. R. 162 919 

Powell V. Toronto, H. & B. Ry. (1898) , 25 A. R. 209 566 

Prangley and Strathroy, Re (1910), 21 O. L. R. 54 ; 1 O. W. N. 706; 

15 O. W. R. 890 .- 144, 197 

Pratt, R. v., 4 E. & B. 860 S14 

V. Stratford (1889), 14 O. R. 260; 16 A. R. 5. . . .571, 932, 947, 1009 

Preece, R. v. (1843) , 5 Q. B. 94 ; 12 L. J. Q. B. 335 326 

Premier Accumulator Co., Eydmann v. (1915), 8 B. W. C. C. 121 987 

Prescott Election Case, (1883) , 1 Ont. El. Cas. 88 235 

, Flatt and. In re (1890) , 18 A. R. 1 14, 22 

, McGarr v. (1902)-, 4 O. L. R. 280 950 

, Nettlp.ton v., 16 O. L. R. 538 ; 21 O. I^. R. 561. .598, 619, 626, 627 
Prest, R. V. (1851), 16 Q. B. 32; 14 J. P. 750; 10 L. J. Q. B. 17; 15 

Jur. 554 586 



Ixviii TABLE OF CASES CITED. 

PAGE 
Presteign Urban D. C, Reynolds v. (1896), 1 Q. B. 604; 65 L. J. 

Q. B. 400 1047, 1048 

Preston, Kerr v. (1876) , 6 Ch. D. 464 ; 46 L. J. Ch. 409 809 

& Manvers, Be (1862) , 21 tJ. C. R. 626 365 

, R. V. (1912) , 106 L. T. 37 795 

Price V. Forbes (1915) , 36 O. L. R. 136 ; 23 D. L. R. 532 17 

Price's' Candle Co., Hampson v. (1876) , 45 L. J. Oh. 437 332 

Prince Edward Provincial Election, Re (1900) , 4 O. L. R. 255 159, 179 

(1905), 9 O. L. R. 465.152, 161, 173 

Princess of Wales v. Earl of Liverpool (1818) , 1 Swanst. 114 410 

Priiigle v. Stratford (1910) , 20 O. L. R. 246 •. .454, 651, 653-5 

, Whyte Packing Co. v. (1910) , 42 S. C. R. 691 454 

Prison Comrs., Gorton Local Bd. v. (1904), 2 K. B. 165n ; 73 L. J. 

K. B. 114n 340 

Pritchard v. Bangor (1888), 13 A. C. 241 ; 57 L. J. Q. B. 313. .96, 163, 213 

Prittie and Toronto, Re (1892) , 19 A. R. 503 567 

Proctor, Gibbons v. (1891) , 64 L. T. 594 688 

Prohibitory Laws, Re (1895) , 24 S. 0. R. 248 343 

Prosser, R. ex rel. Pollard v. (1859) , 2 P. R. 330 11 

Prosterman, R. v. (1909) , 11 W. L. R. 141 886 

Provincial Fisheries, In re (1896) , 26 S.. C. R. 444 10 

Provincial Provident, Jordan v., 27 S. C. R. 554 310 

Prows'e, Fisher v., 31 L. J. Q. B. 212 908, 909 

Prudhomme, R. v. (1887) , 4 M. R. 259 173 

Prvce and Toronto. Re (1892), 20 A. R. 16 566 

Pugh, In re, 61 N. T. S. 1145 568 

Pullen, Gray v., 34 L. J. Q, B. 265 968 

Pulling, Herriman v. (1906) , 8 O. W. R. 149 1054 

Pulsford, Northcote v. (1875), L. R. 10 C. P. 476; 44 L. J. 0. P. 217. 113 

, R. v. (1828) , 8 B. & C. 350 281, 282 

Purcell V. Sowler (1877), L. R. 2 C. P. D. 315; 46 L. J. C. P. 308 270 

Puslinch, Grant v. (1868) , 27 U. C. R. 154 408 

Putnam, Hoyle v., 46 Conn. 56 988 

Q. 

Quartermaine, Thomas v. (1887) . 18 Q. B. D. 685 ; 55 L. J. Q. B. 340. 757 

Quayle, R. v., 9 Dowl. 548 .' 226 

Quebec Southern Ry., Sorell v. (1905), 26 C. L. T. 70; 36 S. C R. 386. 672 

Queen (The) , Hodge v. (1883) , 9 A. C. 117 897 

V. Local Govt. Bd. (1882) , 10 Q. B. D. 309 5 

, Paradis v. (1887) , 1 Ex. C. R. 191 7 

V. Vaughan (1868) , L. R. 4 Q. B. 190 573 

(See R. for other cases). 

Quellette, Koonsky v., 226 Mass. 474 : 961 

Quigley and Bastard, In re (1911) , 24 O. L. R. 622 115, 138, 145, 

198, 199, 412 
Quinn v. Orillia (1897) , 28 O. R. 435 778, 814 

R. 

R. V. Ackers (1910) , 21 O. L. R. 187 601 

V. Aitcheson (1915) . 9 O. W. N. 65 860 

V. Albany (1915) , 3 K. B. 716 ; 84 L. J. K. B. 2121 59 

V. Alderson (1839), 11 A. & E. 3 223, 226 

V. Bangor (1886) , 18 Q. B. D. 349 ; 56 L. J. Q. B 326. . . '. 213, 327 

V. Banks (1894) , 1 Can. Cr. Cas. 370 1058 



TABLE OF CASES CITED. Ixix 

PAGE 

ft. V. Bartholomew <1908) , 1 K. B. 554 ; ?? L. J. K. B. 275 1050 

V. Beer (1908) , 2 K. B. e&3 ; 72 L. J. K. B. COS . . . . : 322 

V. Bell (1894) , 24 O. R. 274 783 

V. BeUringer (17921) , 4 T. R. 811 273 

V. Belmont, 38 U. C!. E. 298 358 

V. Bennett (1882), 1 O; R. 446 ■..■. • 1060 

V. Benney (1831), 1 B. & Aid. 684 212 

V. Birmingham, L. R. 2 Q. B. 47 933 

V. Bond (1906) , 2 K. B. 389 ; 75 L. J. K. B. 693 245 

V. Boyd (1889) . 18 O. R. 485 900 

V. Sradford-on-Avon (1908) , 99 L. T. 80 305 

V. Bradshaw, 14 Cox C. C. 83 781 

V. Bridge. (1818) , 1 M. & S. 76 . . . . ; 102 

V. Buchanan, 8 Q. B. 883 184 

V. Burah. (1878) , 3 A. 0. 889 897 

V. Butler (1892) , 22 O. R. 462 900 

V. Cambridge University, 1 Str. 559 816 

v. Campion (1890)* 55 J. P. 21 ; 1 Sid. 14 331 

V. Canadian Pacific Ry. (1914) , 33 O. L. R. 248 825, 826 

V. Canterbury (1903) , 1 K. B. 289 330 

V. Carlile (1832) , 6 C. & P. 636 830 

V. Carlisle (171fl) ,1 Str. 385 453 

V. Casey (1»14) , L. R. 2 Ir. 243 103 

V. Chester Corpn. (1856) , 25 L. J. Q. B. 61 238, ^2 

V. Child (1830) , 4 C. & P. 442 300 

V. Ohisholm (1907) , 14 O. L. R. 178 1059 

V. Oloutier ^1898) , 12 M. R. 183 ; 2 Can. Or. Cas. 43 847 

V. Coleridge, 2 B. & Aid. 806 757 

V. Collins (1876) , 2 Q. B. D. 30 ; 46 L. J. Q. B. S57 232 

V. Coney (1881) , 8 Q. B. D. 534 ; 51 L. J. M. C. 66 781 

V. Cooto (1912) , 27 O. L. R. 406 629 

V. Copp (1889) , 17 O. R. 742 796, 814 

V. CJousins (1873) , L. R. 8 Q. B. 216 ; 42 L. J. Q. B. 124 215 

V. Davis (1875), 24 C. P.>575 > 918 

V. Dawes, 4 Burr. 22?7 .• 226 

V. Deighton (1844) , 5 Q. B. 896 95 

V. Demers (1900) , A. C. 103 : 69 L. J. P. C. 5 292 

V. Devon (1825) , 4 B. & C. 670 933 

V. Devonshire, 1 B. & C. 611 273 

V. Dowsley (1890) , 19 O. B. 622 1058 

V. Dungey (1901) , 2 O. L. R. 223 ; 5 Can. Cr. Cas. 38 750 

V. Durocher (1913) , 28 O. L. R. 499 127, 163^ 184, 1085 

V. East Mark Tyching, 11 Q. B. 877; 17 L. J. Q. B. 117 908, 909 

V. Farrell (1907), 15 O. L. R. 100 601 

V. E*itzg*ra"]d (1912) , 19 Can. Cr. Cas. 145 781 

V. Fleming (1895) , 27 O. R. 122 599 

30 D. L. R. 41fr; 36 Can. Cr. Cas. 182 781 

V. Geddes (1915) , 35 O. L. R. 177 886, 887 

V. Goddard (1839) , 11 A. & E. 3' 223 

V. Godstone Rural CI., (1911) , 2 K. B. 465 ; 80 L. J. K. B. 1184.. 303 

V. Gordon (1888) , 16 O. R. 64 601 

V. Gore (1878) , 5 U. C. R. 357 297 

V. Grand Trunk (1916) , 37 O. L. R. 457 826 

V. Gravelle (1886), 10 O. R. 735 844 

V. Greene (1843), 4 Q. B. 646 414 

V. Gurr (1891), 21. O. R. 499 900 

V. Hall (1891) , 1 Q. B. 747 . 184 

V. Hamilton (1913) , 5 O. W. N. 58, 265 ; 25 O. W. R. 33 886 



IXX TABLE OP CASES CITED. 

PAGE 

E. V. Hawkins (1908) , 10 East 211 102 

V. Hayes (1904) , 5 O. L. R. 202 60 

V. Herrmann (1879) , 48 L. J. M. C. 106 7 

V. Hertfordshire, Justice of, 6 Q. B. 753 331 

V. Hicklin (186S), L. R. 3 Q. B. 360; 37 L. J. M. 0. 80 763 

V. HiBcox (1879'), 44 U. C. R. 214 609 

V. Holmes (1907) , 14 O. L. R. 124 601 

V. Howard (1884) , 4 O. R. 377 814 

V. Hunton, 9 L. 6. R. 751 201 

V. Isherwood, 2 Ld. Ken. 202 243 

V. Johnston (1876) , 38 U. C. R. 549 849, 1060 

V. Jourdon (1900) , 8 Can. Cr. Cas. 337 783 

V. Justice of Hertfordshire, 6 Q. B. 753 331 

V. Justice of King's County, 2 Cart. 499 783 

T. Justin (1893) , 24 O. R. 327 721 

V. Keefe (1890) , 1 Terr. L. R. 280 754 

V. Keenan (1913) , 28 O. L. R. 441 629 

V. King's County, Justice of, 2 Cart. 499 783 

V. Knowles (1913) , 25 W. L. R. 294 728 

V. Laforge (1906), 12 O. L. R. 308 790, 804 

V. Langley (1899) , 31 O. R. 295 897 

V. Larwood (1693) , Carthew 306 322 

V. Latham (1894) , 24 O. R. 616 756, 900 

v. Laughton (1912) , 22 M. R. 520 357 

T. Lavoie, 6 Can. Cr. Cas. 39 j 273 

V. Leake, 5 B. & Ad. 469 909, 911 

V. Leigh Rural Dist. CI. (1898) , 2 A. C. 836 493 

f. Levy (1899) , 30 O. R. 403 881, 898 

V. Littlejohn (1904) , 8 Can. Cr. Cas. 213 , 781 

V. Liverpool (1759) , 2 Burr. 723 453 

(1872) , 41 L. J. Q. B. 175 436 

V. Local Govt. Bd. (1882) , 10 Q. B. D. 309 5 

V. Locke (1911) , 1 K. B. 680 ; 80 L. J. K. B. 358 482 

v. Lofthouse, L. R. 1 Q. B. 440 -. 212, 411 

V. London County Ol. (1892), 1 Q. B. 190; 61 L. J. M. C. 75;. .280, 281 

V. Long (1888) , 59 L. T. 33 830 

V. Lynn (1878) , 2 T. R. 733 757 

V. Maher (1905), 10 O. L. R. 102 797, 1045, 1046 

V. Manchester (1908) , 38 N. B. R. 424 840 

V. Marceau (1915) , 30 W. L. R. 418 ; 7 W. W. R. 1174 728 

V. Mar.shall, 2 Chit. R. 370 226 

V. Martin (1887) , 12 O. R. 800 760 

V. Matheson (1883) , 4 O. R. 559 754 

V. McFarlane (1897) , 17 C. L. T. Occ. N. 29 790 

V. McGregor (1902) , 4 O. L. R. 19S. 343, 344, 736 

V. McRae (1897) , 28 O. R. 569 601 

V. Meehan, In re (1902) . 3 O. L. R. 567 127, 183, 1085 

V. Meyer, 1 Q. B. D. 173 600 

V. Michigan Central (1907) , 10 O. W. R. 660 741 

V. Miller, 6 T. R. 268 273 

V. Milne (1895) , 25 C. P. 94 601 

V. Misse (1908) , 7 W. L. R. 934 728 

V. Morris (1803) , 3 East 213 212 

V. Moss (1896) , 26 S. C. R. 332 912 

V. Mountford (1906) , 2 K. B. 814 566 

V. Murray, 24 C. L. T. 183 897 

V. Myers (1903) , 6 O. L. R. 120 844 

, 23 C. L. T. 286 897 



TABLE OF CASES CITED. Ixxi 

PAGE 

R. V. Norfolk County €1. (1891) , 60 L. T. Q. B. 379 448 

V. Norwich (1882) , 30 W. R. 752 ; 46 J. P. 308n 586 

V. Nunn (1884) , 10 P. R. 395 759, 760, 790 

, (1905) , 15 M. R. 288 352, 796 

v. Ogle (1910) , 15 W. L. R. 325 897 

V. Oldham, L. R. 4 Q. B. 290 66 

V. Orton. (1878) , 14 Cox C. O. i226 781 

V. .Osier (1872) , 32 U. C. R. 324 340, 358 

V. Oxford, Trustees of, 11- A. & E.-427 933 

V. Oxfordshire (1830) , 1 B. & Ad. 301 784 

V. Payme (1818) , 2 Ch. 369 212 

V. Payne, 35 L. J. M. C. 170 .1049 

V. Pease, 4 B. & Ad. 30 ...;.. 963 

V. Peck and Gait (1881) , 46 U. C. Ri 211 .411, 716 

V. Pelkey (1913) , 21 Can. Gr. Cas. 387 ..: . . 781 

V. Pember (1912) , 2 D. L. R. 542 ; 3 D. L. R.;347 .897 

V. Petrie. 4 El. & Bl. 737 ; 24 L. J. Q. B. 167 . . : 908, 909 

V. Pitt, 3 Burr. 1335 243 

V. Plummer,' 30 U. C. R. 41 721 

V. Piympton, 2 Ld. Rayd. 1377 ; 4 A. & E. 2nd ed. 909 243 

' V. Pope (1906), 4 W. L. R. 278 \ 349,. 877 

V. Potter (1839) , 11 A. & E. 3 223 

V. Pratt, 4 E. & B. 860 914 

V. Preece (1843) , 5 Q. B. 94 ; 12 L. J. Q. B. 335 ; 326 

v. Prest (1851), 16 Q.,B. 32; 14 J. P. 750; 20 L. J. Q. B. 17 ; 15 

Jur. 554 586 

V. Preston Rural Dist. CI. (1912) , 106 L. T. 37 795 

V. Prosterman (1909) , 11 W. L. R. 141 . 886 

V. Prudhomme (1887) , 4 M. R. 259 173 

v..Pulsford (1828), 8 B. & C. 350 281, 282 

V. Quayle, 9 Dowl. 548 ; . . . ' 226 

V. Rand (1866), L. R. 1 Q. B. 230; 35 L. J. M. C. 158 599 

V. Reed (1880) , 49 L. J. Q. B. 600 482 

(1886) , 11 O. R. 242 , .352, 844 

V. Rejg?ite, Mayor of. Ex parte Barnes, Times, EVb. 7tti, 1893- . ..-. - 271 

' : V. Rjeynoi^s (:i906) , 11 Can. Cr. Cas. 312 . 762 

- V. Riddell (1912) , 22 6. W. R. 847 ; 3 O. Wj N. 1628 629 

. V. Riel (1885) , 55 L. J. P. C. 28 ....;.... 14 

V. Rowlands, 75 L. J. K. B.-501 67, 70 

V. Russell (1854) , 3 E. & B.' 942 820 

V. Sands (1915), ^ W. I>. R; 775 ; 9 W. W. R. 129, 436; 25 M. R. 

. ..ppip. 728 

V. Sault Ste. Marie (1910) , 16 O. W. R. 871 ; 1 O. W. N. 1144 300 

V. .Saunders (1854), 24 L. J. >I.-C.'45 ■ 497 

V. Scales (1917) , 41 O. L. R. 229 897 

V. Schofield, Cald. 397 243 

v: SeTern, 2 B. & Aid. 646 933 

■ V. Shaw (1891), 7M. R. 518 .355-7, 754, 783 

V. Sheffield (1871 ) , L. R. 6 Q. B. 652 ; 40 .L. , J. Q. B. 247 • 436 

V. Smith (1816), 5 M. & S. 133 740 

(1884), 4 O. R. 401 ; 841 

(1899) , 31 O. R. 224 790 

33 C. L. T. 119 790 

^ V. Soutbwold Coi-pn. (1907), 71 J. P. 351 . . 305 

V. Sover^en (1912) , 26 0. L. R. 16 . . . . ; '. .- 728 

. V. Spegelman (1905) , 9 O. L. R. 75 754 

V. Stacey (1785), 1 T. R. 1 .., 216 

T. Stepney Borough CI. (1902), IK. B. 317 ; 71 L. J. K. B. 238. . 332 



Ixxii TABLE OF CASES CITED. 

PAGE 

R. V. Stewart (1898) , 1 Q. B. 552 ; 67 L. J. Q. B. 421 95, 103 

V. Strauss (1897) , 1 Can. Cr. Cas. 103 790 

v. St. Pierre (1902) , 4 O. L. R. 76 897 

V. Sunderland, Justice of (1901) , 2 K. B. 357 67, 600 

V. Taylor, 2 Str. 1167 735 

V. Taylor (1895) , 59 J. P. 97 97 

V. Tewkesbury (1868) , L. R. 3 Q. B. 629 ; 37 L. J. Q. B. 288 102 

V. Tizzard,- 9 B. & C. 418 386 

V. Trevenen (1819), 2 B. & Aid. 339 212 

V. Tyler and International (1891) , 2 Q. B. 588 184 

V. Van Norman (1909) , 19 O. L. R. 447 414, 687, 904, 1059 

V. Vanghan (1769-) , 4 Burr. 2500 243 

(1868) , L. R. 4 Q. B. 190 • 573 

V. Verral (1889) , 18 O. R. 117 824 

V. Ward (1873) , L. R. 8 Q. B. 210 ; 42 L. J. Q. B. 126 216 

V. Watts (1798) , 2 Bsp. 675 820 

V. Waugh, Ex parte Crome, Times, June 2nd, 1892 271 

V. Webster (1888), 16 O. R. 187 . . / 347, 756, 814, 819. 904 

V. Wellard, 14 Q. B. D. 63 ; 54 L. J. M. C. 296 783 

V. Welshpool Corpn. (1876) , 35 L. T. 594 322 

V. Westwood (1830) , 7 Bing. 1 293 

V. White (1757) , 1 Burr. 333 827 

V. Wigan (1885) , 14 Q. B. D. 908 ; 54 L. J. Q. B. 338 203 

V. Wildfong (1911) , 17 Can. Cr. Cas. 251 781 

V. Williams. 1 Russ. 321 735 

, 3 B. & Aid. 215 497 

(1891) , 55 J. P. 406 830 

V. Wilson, 20 C. L. T. 144 897 

y. Wimbledon (1808) , 77 L. T. 599 305 

V. Woolcock (1833) , 5 C. & P. 516 300 

V. WooUatt (1906) , 11 O. L. R. 544 843, 844 

V. Worksop Local Bd. (1857) , 21 J. P. 451 494 

(1865), 5 B. & S. 951 494, 496 

V. Wycombe, L. R. 2 Q. B. 310 933 

V. Yorkshire, W. Riding of (1770) , 5 Burr. 2594 ^3 

V. Young (1866) , 10 Cox C. C. 371 781 

R. ex rel. Adamson v. Boyd, 4 P. R. 204 63, 68, 91, 102 

Armon v. Caste, 8 L. J. 290 67 

Armour v. Peddle (1907), 9 O. W. R. 393 ; 14 O. IL. R. 339. 

169,193, 220^ 

Armstrong v. Garratt (1907) , 14 O. L. R. 397 97, 98, 192 

Arnott V. Marchant, 2 C. L. Oh. 189 , 231 

Bartliffe t. O'Reilly, 8 A. R. 617 217 

Bawkes v. Letherby (1908) , 17 O. L. R. 304 100, 193, 

204 205 230 

Beck V. Sharp (1908) . 16 O. L. R. 267 ......".. .'.225! 227 

Black V. Campbell (1909), 18 O. L. R. 269 . .84, 118, 120. 193, 220 

Bland v. Figg, 6 L. J..44 71 

Boyce v. Porter (1915)", 33 O. L. R. 575 .216, 217 

Boyes v. Detlor (1868) , 4 P. R. 195 67, 305 

Brine t. Booth (1888) , 9 P. R. 452 ; 3 O. R. 147 66, 68! 212 

Bugg V. Smith, 1 C. L. J. 129 69 

Burnham v. Hagerman, 31 O. R. 636 .63, 220 

V. Sharpe, 31 O. R. 636 ..." ' 64 

Carr v. Outhbert (1001) , 1 O. L. R. 212 5, 227 

Carroll v. Beckwith (1854) , 1 P. R. 278 60, 63, 64 

Cavanagh v. Smith (1895) , 26 O. R. 632 ' 500 

Cavers v. Kelly (1906), 7 0. W. R. 280, 600 . . .97, 193, 220, 326 



TABLE OF CASES CITED. Ixxiii 

PAGE 

R. ex rel. Chambers v. Allison, 1 tJ. C. L. J. N. S. 244 66 

Chauncey v. Billings, 12 P. R. 404 .-. . 217 

Clancy v. Conway (1881) , 46 U. C. R. 85 68, 322 

V. Mcintosh, 46 U. C. R. 98 63, 91, 215 

V. St. Jean, 46 U. C. R. 77 215, 258, 322 

Clark V. McMullen, 9 U. C. R. 467 216 

Coleman v. O'Hare, 2 P. R. 18 71, 72, 102, 215 

Corbett v. JuU (1869), 5 P. R. 41 96, 231. 

Coupland v. Webster, B L. J. 89 .' 231 

Orozier v. Taylor, 6 L. J. 60 68 

Dexter v. Gowan, 1 P. R. 104 64, 102 

Dillon V. McNeil (1855) , 5 C. P. 137 135 

Eyans v. Starratt, 7 C. P. 19 261 

Felitz V. Howland, 11 P. R. 264 64, 215 

Ferris v. Spect, 28 O. R. 486 64 

Fitzgerald v. Stapleford, 29 0. L. R. 133 90, 246 

Flanagan V. McMahon, 7 L. J. 155 68, 71 

Flater v. Von Velson, 5 P. R. 319 64 

Fluett V. Gautier, 5 P. R. 24 70, 71 

V. Semandie, 5 P. R. 19 63 

Ford V. Cottingham, 1 tJ. C. L. J. N. S. 214 66 

V. McRae, 5 P. R. 309 71, 102 

Forsyth V. Dalsen, 7 L. J. 71 71 

Forward v. Detlor (1868) , 4 P. R. 197 103, 222 

Grant v. Coleman (1882) , 8 P. R. 497 ; 7 A. R. 624 215, 

216, 218, 228, 233 

Grayson v. Bell, 1 C. L. J. N. g. 130 322 

Gunder Bjorge v. ^elliekson (1910), 13 W. L. R. 433 194 

Hall V. Gowanlock (1898) , 29 O. R. 443 221, 222 

Hamilton v. Piper, 8 P. R. 225 63 

Harding v. Bennett, 27 O. R. 314 63, 64, 71, 79, 642 

Harris v. Bradburn (1876) , 6 P. R. 308 114 

Harwood v. Fournier (1892) , 14 P. "R. 463n 216 

Heenan v. Murray (1864) , 3 P. R. 345 260 

Hervey v. Seott, 2 C. L Ch. 88 102 

Hewson v. Rlddell, 14 O. W. R. 49 163 

Hill V. Bretts, 4 P. R. 113 69 

Hogan V. Jolivette (1912) , 20 W. L. R. 364 W4, 204 

Hyde v. Barnhart, 7 L. J. 126 260 

Ingham v. Orde (1830) , 8 A.'& E. 420n 223 

Ingoldsby v. Speirs, 13 O. W. R. 611 . . . ^ 64 

Ivison V. Irwin, 4 O. L. R. 192 163, 164, 182, 192, 224, 228 

Jamieson v. Cook, 9 O. L. R. 466 68 

Joanisse v. Mason, 28 O. R. 495 63 

Jobarton v. Murvey, 5 L. J. 87 231 

.Tohns V. Stewart (1888) , 16 O. R. 583 246 

Lachford v. Frizzell; 6 P. R. 12 : 64 

Lafinson v. McCarthy (1903) , 5 O. L. R. 338 212 

Langdon v. Baby, 2 C. L. Oh. 130 63 

Lee V. Gilmour, 8 P. R. 514 71 

Lenton v. Jackson (1851) , 2 C. L. Ch. 18 228 

MacNamara v. Heffernan, 7 O. L. R. 289 71 

Mangan v. Fleming (1892) , 14 P. R. 458 216, 218 

Marson' v. Butler (1897) , 17 P. R. 382 226 

Martin v. Moir, 7 O. W. R. 300 64 

V. Watsonll906), 11 O. L. R. 336 97, 192, 258, 322 

■ McFarlane v. Coulter (1902), 4 O. L. R. 520 216, 224 

McGregor v. Ker, 7 U. C. C. P. 67 64 

McGuire v. Birkett, 21 O. B. 162 70, 102 



IXXIV TABLE OF CASES CITED. 

PAGE 

■R. ex rel. MqKenzie v. Martin (1897), 1270. R. 523 ...•....•......;. ,?1 

McLean v. Watson, 1 C. L. J. N. S. 71 71, 222 

McLeod v. Bathurst (1903) , 5 O. L. R. 573 212 

McManug v. Ferguson (1865), 2 U. C. L. J. N. S. 19. 

228, 258, 261 

McMuUen v. De Lisle, 8 L. J. 281 .■ 67 

Metcalfe v. Smart, 10 U. C. R. 89 63 

Milligan v. Harrison (1908), 16 O. L. R. 475 . .63, 64, 77, 78, 

98, 192; 220, 258, 326 

Mitchell V. MeK«nzie (1915), 33 O. L. R-. 196 .". .... .244, 252 

Moore v. Hamill (1904) . 7 O. L. R. 6G0 . . . . ■. 212, 220, 439 

V. Miller, 11 U. C. R. 465- 70 

Morton v. Roberts, 3 0. W. N. 1089; 22 O. W. R..50; 26 

O. L. R. 263 58, 60. 64, 200, 209. 217, 218, 260, 322 

O'Donnell v. Broomfield, 5 O. L. R. 596 68, 91, 103 

O'Reilly v. Charlton (1874), 10 U. C. L. J. N.,S,-105. . . .217, 218 

O'Shea v. Letherby (1908), J6 O. L; R..'581 . . . . . .63, 72. 

98, 192, 220, 225, 227, 327, 652 

Park V. Street (1905), 1 W. L. R. 202 ... .'..;...... 212 

Patterson v. Vance (1871) . 5 P. R. 334 222 

Percy v. Worth (1893) , 23 O. R. 688 .■ . . ;217, 218, 220 

Philbrick v. Smart, 5 P. R. 323 . 64 

Piddington v. Riddell (1867), 4 P. R. 80 69, 71, 224, 228 

Pollard V. Prosser (1859) , 2 P. R. 330 11 

Regis f. Cusae (1876) , 6 P. R. 203 212. 411 

R:ichmond v. Tegart, 7 L. J. 128 67, 102 

Roberts v. Ponsford (1902) , 3 O. L. R. 410 218, 219, 228 

Robinson v. McCarty, 5 O. L. R. 638 . . . 68, 103 

Rolls V. Beard, 3 P. R. 357 ". 68, 91 

Ross V. Rastal, 2 C. L. J. 160 71 

V. Taylor (1&02) , 22 C. L. T. Occ. N. 183 224, 228 

Sahourin v. Berthiaume (1913), 4 O. W. N. 1201; 24 O. 

W". R. 559 ; 11 I>. L. R. 68 , 90 

Seymour V. Plant (1904), 7 O. L. R.467_^. .....:...-.... . 220 

Sharp V. Beck (1909) , 13 O. W. R. 457, 539 ..,'... . .14, 55, 

63, 64, 212, 213 

Snider v. Richardson, 3 O. W. R. 276 -. -.- 64 

Sovereen v. Edwards (1912) , 22 M. R. 790^ .23; 882, 1003 

Stewart V. Standish (1884) , 6 O. R. 408 ; .... 239 

St. Louis V. Reaume, 26 O. R. 460 ~. .... SI, 190, 220 

Stock V. Davis, 3 L. J. 128 64, 71 

Sullivan v. Church (1914) , 26 O. W. R. 375 ; 6 O. W. N. 116, 

365 12, 23, 54, 55, 212, 213 

Taberner v. Wilson (1888) , 12 P. R. 546 ... 90, 91 

Taylor v. Stevens, 7 P. R. 315 . 71 

Telfer v. Allan, 1 P. R. 214 64 

Thornton v. Dewar (1895) , 26 O. R. 512 191, 227, 244 

- I ... Tinning v. Edgar (1867) , 4 P. R. 36 , 102 

Tolmie V. Campbell (1902), 4 O. L. R. 25 126, 145, 192, 212 

Walker v. Mitchell (1868) , 4 P. R. 218 .98, 114 

Walton V. Freeborn (1901) , 2 O. L. R. 168 . .96, 216 

Warner v. Skelton (1911) , 23 O. L. R. 182 ... .209, 216, 220, 234 

Warr v. Walsh (1903) , 5 O. L. R. 268 93, 192, 216 

Watterworth v. Buchanan (1897), 28 O. R. 352 163, 178 

Whyte v. McClay (1889) , 13 P. R. 96 225 

Zimmerman v. Steele, 5 O. L. R. 565 ; 68, 91, 103 

Rae V. Trim (1880) , 27 Gr. 374 , 1010 

Raikes, Patchell v. (1904), 7 L. R. 470 '. . . .286, 324, 325, 

; ^ 569, 570, 644, 903 



TABLE OF .CASES CITED. IxXV 

PAGE 
Railway Sleepers Supply Co., Re (1885) , 29 Ch, D. 304 ; 54 L. J. Ch. 

720 .1020 

Raleigh, Foster and. Re (1910) , 22 O. L. R. 26 346, 355 

. SmithV. Tp. of (1883) , 3 O. R. 405 500 

Ralph V. Mitchell, 6 B. W. C. C. 678 985 

Ramsay v. Western Dist. 01. (1845) , 4 U. C. R. 374 306 

Jlanck,, East Bran^ywine v., 78 Pa. 454 568 

Rand, Chapman v., 11 S. C. R. 312 173, 398 

, R. V. (1866) , L. R. 1 Q. B. 230 ; 35 L. J. M. C. 158 599 

Randell v. Grundy (1895) , 1 Q. B. 16 , 408 

Rannie, McAvoy v., 5 O. W. R. 667 608 

Rastai, R. ex rel. Ross v., 2 C. L. J. 160 71 

Ratlifle, Page v. (1896) , 76 L. T. 63 555 

Rawdon Voters' List. Re (1903^ , 6 O. L. R. 613 79 

Rawlings, Dudderidge v. (1913) , 108 L. T. 802 830 

Ray V. Petrolia (1874) , 24 C. P. 73 950 

Rayson v. South London Tramways Co. (1893), 2 Q. B. D. 304; 62 

- L. J. Q. B. 593 5 

Rea, Re Holman and (1912) , 27 O. L. R. 432 601 

Read, Amherst v., 40 N. S R. 154 ". 332, 902 

Atty.-Gen. v. (1678) , 2 Mod. 299 322 

Real Estate Invt. Co. v. Richmond (1903), 23 Que. S. C. 151 636 

Rear of Yonge and Escott, Re Athens H. S. Bd. and Tp. of (1913), 29 

O. L. R. 360 478, 481. 482, 484, 491 

Reaume, R. ex rel. St. Louis v. (1895), 26 O. R. 460 81, 190, 220 

Redford v. Woburn (1900) , 176 Mass. 520 950 

Reed v. Lamb (1862) , 6 H. & N. 75 248 

, R. T. (1880), 49 L. J. Q. B. 600 482 

(1886) , 11 O. R. 242 352, 844 

, Woods V. (1877) . 6 L. J. M. C. 105 : 2 M. & W. 777 438 

Refuge Assce. Co. v. Miller, 5 B. W. C. C. 522 985 

Regina, Brown v. (1914) , 29 W. L. R. 537 698 

, Gesman v. (1909) , 10 W. L. R. 136 402, 595 

, Keay v. (1912) , 22 W. L. R. 185 415, 636 

Regis V. Cusac, R. ex rel. (1876) , 6 P. R. 303 212, 411 

Rehill V. East Newark, 63 Atl. 83 1026 

Reid, Earl v. (1910) . 21 O. L. R. 545 779 

V. Hamilton (1856) , 5 C. P. 269, 287 947 

Reigate, R. v. Mayor of, Ex parte Barnes, Times, Feb. 7th, 1893 271 

Renackowsky v Detroit, 122 Mich. 613 ; 81 N. W. 581 989 

Renfrew, Ellis and. Re (1910) . 21 O. L. R. 74 ; 2 6. W. N. 27 ; 23 O. L. 

R. 427 83, 86, 139. 140-4, 145, 169, 194, 197, 198, 386, 390 

, McNab V. (1905) , 11 O. L. R. ISO 927, 928, 929 

, Pedlow v., 27 O. R. 611 --912 

, Pembroke and, Re (1910), 21 O. L. R. 366. . . .933, 989, 990, lOOl 
Renter's, Dickson v. (1877), 2 C. P. D. 62 ; 3 C. P. D. 1; 47 L. J. C. 

P 1 58S 

Revelle and Oxford, Re (1877) , 42 U. C. R. 337 408 

Reynolds, Ex parte (1882) , 20 Oh. D. 294 255 

V. Presteign Ufban D. 0. (1896), 1 Q. B. 604 ; 65 L. J. Q. B. 

400 1047, 1048 

, R; V. (1906) , 11 Can. Cr. Cas. 312 762 

V. Toronto (1865), 15 U. C. C. P. 277 841 

Rhyl, Douglas v. (1913), 2 Ch. 407 ; 82 L. J. Oh. 537 585, 586, 587 

Rice V. Whitby (1898) , 25 A. R. 197 949, 1000 

Rich V. Melancthon Bd. of Health (1912), 26 O. L. R. 48 1065, 1072 

Richards, Ex parte (1878), 3 Q. B. D. 368; 47 L. J. Q. B. 498. . . .331, 332 

, Williams v. (1893) , 23 O. R. 651 689 

Richardson v. Methley (1893) , 3 Ch. 510 ; 62 L. J. Ch. 943 201 

, Snider v., R. ex rel., 3 O. W. R. 276 64 



Ixxvi TABLE OF CASES CITED. 

PAGE 

Riche, Ashbury v. (18?5), L. R. 7 H. L. 653 ; 44 L. J. Ei. 185. . . .351. 670 

Ricbmond, Atty.-Gen. v., 29 L. T. 700 ; 2« T. L. R. 131 911 

, Lariviere v. (1902) , 21 Que. S. 0. 37 648, 673 

, Miles and, Re (1869) , 28 U. O. R. 333 375, 1019 

, N»wen V. (1005) , 28 Que. S. 0. 406 646 

, Real Estate Invt. Co. v. (1903) , 23 Que. S. O. ISl 636 

V. Seaboard, 49 S. E. 512 SftT, 568 

V. Tegart, R. ex rel., 7 L. J. 128 67 

Riekett v. Metropolitan Ry., L. R. 2 H. L. 175 588, 559, 991 

Ricketts v. Markdale (1890) , 31 O. R. 180, 610 969.961 

Rickey and Marlborough, -Re (1907) , 14 O. L. R. 587 105, 138, 

196, 372, 378, 1018 

Riddell, Hewson v., R. ex rel., 14 O. W. R. 49 163 

, Piddington v., R. ex rel. (1867), 4 P. R. 80 69, 71, 224, 228 

, R. Y-. (1912), 22 O. W. R. 847 ; 3 O. W. N. 1628 629 

Riel. R. V. (1885) , 55 L. J. P. C. 28 14 

Rigby V. Hewitt (1850) , 5 Ex. 240 1000 

Righton, Hadley v. (1907) , 2 K. B. 345 ; 76 L. J. ^. B. 891 ". . . . 914 

Riley, Lee v., 18 C. B. N. S. 722 771 

, Pilkington v., 3 Ex. 73& 978 

Ringwood Highway Bd., Turner v. (1870) , L. R. 9 Eq. 418 1043 

Ritz and New Hamburg, Re (1902) , 4 O. L. R. 639 412 

River Dee, Wenlock v. (1888), 38 Oh. D. 534; 57 L. J. Oh. 946. 

24, 366, 439, 481, 482 

(1886) , 10 A. 0. 354 670 

Roach V. Port Oolborne (1913) , 29 O. L. R. 69 950 

Robarts, Goodwin v. (1875), L. R. 10 Ex. 337 519 

Rober, People ex rel. Ounningham v., 35 N. T. 629 642 

Roberts v. Climie (1881) , 46 U. C. R. 264 358 

. Hickman v. (1913) , A. 0. 229 16, 577 

V. Mitchell (1894) , 21 A. R. 433 779 

, Morton v., R. ex rel., 3 O. W. N. 1089; 22 O. W. B. 50; 26 

O. L. R. 263 58, 60, 64, 200, 209, 217, 218, 260, 322 

, Norfolk V. (1913), 28 O. L. R. 593; 50 S. C. R. 283. 

286, 326, 637-9, 644 

V. Ponsford, R. ex rel. (1902) , 3 O. L. R, 410 218, 219, 228 

, 22 0. L. T. Dec. N. 146 224 

Robertson and N. Easthope, In re (1888), 15 O. B. 423; 16 A. B. 214. 23 

Robins, Hodgson v. (1914) , 7 B. W. 0. C. 232 987 

Robinson, Be (1877) , 7 P. B. 239 687 

& Beamsville, Be, 8 O. W. B. 689 ; 9 O. W. B. 273. .196, 373, 1019 

, Ex parte (1876) , 16 N. B. B. 389 194 

V. Halifax, 11 N. S. B. 375 980 

V. Havelock (1914) , 32 O. L. B. 25 .- 961 

V. London General Omnibus Co. (1910), 74 J. P. 161 ; 26 

T. L. B. 233 1046 

V. McCarty, B. ex rel., 5 O. L. B. 638 68, 103 

V. Morris (1909) , 19 O. L. R. 633 . . .~. 617 

V. St. John School Trustees (1898), 34 N. S. R. 503 522 

Todd v., 54 L. J. Q. B. 47 69, 72 

Bobson, Brock v. (1914) , 25 M. R. 64 23, 415 

Roche V. Byan (1891) , 22 O. B. 107 912, 917 

Bochester and Mersea, Re (1901) , 2 O. L. R. 435 474 

Roehford v. Brown (1911) , 25 O. L. R. 206 286 

Bochford, Nash v. (1916) , 1 K. B. 284 925 

, Often V. (1906) , 1 Ch. 342 ; 75 L. J. Oh. 348 . . ., 911 

Rock Island, People v., 215 111. 488 1047 

Rockland, Veasie v., 68 Me. 511 988 

Rodd V. Essex (1910) , 19 O. L. R. 659 ; 44 S. C. R. 137 330, 620 



TABLE OP CASES CITED. Ixxvii 

PAGE 

Roe V. Lucknow (1894) , 21 A:. R. 1 951, 952, 964, 965, 996 

V. WeUesley (1918) , 43 O. L. R. 214 961 

Roger, Otto v. (1917) , 40 O. L. R. 381 24, 776 

Rogers v. Toronto (1914), 31 O. L. R. 167.809, 812, 814, 824, 829, 871, 872 

(1915), 33 0. L..R. 91 354, 355 

Rolls V. Beard, R. ex rel., 3 PT R. 357 68, 91 

V. St. George's Southwark, 14 Ch. D. 785 ; 49 L. J. Ch. 691 .... 917 
Romanowski, Kruse v. (1910), 3 Sask. L. R. 274 ; 14 W. L. R. 696.743, 771 

Romney, Sutherland-Innes Co. v. Tp. of (1898), 26 A. R. 495 .472, 474 

Ronald, Brussels v. (1885) . 4 O. R. 1 ; 11 A. R. 605 658 

Rose, Elston v. (1868) , L. R. 4 Q. B. 4 ; 38 L. J. Q. B. 6 398 

V. Groves, 5 M. & Gr. 613 991 

V. Miles (1815) , 4 M. & S. 101 820 

& Stormont, In re (1862) , 22 U. C. Q. B. 531 924 

V. West Wawanosh- (1890), 19 O. R. 294 358, 594, 775, 1035 

Ross V. Bruce, 21 C. P. 41, 548 580 

V. East Nissouri (1901) , 1 O. L. R. 353 918, 1043 

V. London, 20 O. L. R. 578 ; 23 O. L. R. 74 1065 

, Neville v. (1872) , 22 U. C. C. P.. 487 1060 

, Pontiac v. (1890), 17 S. C. R. 406 522 

V. Rastal, R. ex rel., 2 C. L. J. 160 71 

V. Taylor, R. ex rel. (1902)., 22 O. L. T. Occ. N. 183. 224, 228 

Rossi V. Edinburgh (1905), A. C. 21 ; gi'L. T. 668 889 

Roszkosz, Vienna v. (1904) , 6 Terr. L. R. 51 478, 479 

RothchUd V. Colnmissioners L. R. (1804) , 2 Q. B. 145 6 

Rowland v. Collingwood (1908) , 16 O. JL. R. 272 ; 11 O. W. Jl. 804.345, 355 

Rowlands, R. v., 75 L. J. K. B. 501 67, 70 

Rowley v. Tottenham U. C. (1914) , A. C. 95 ; 83 L. J. Ch. 411 911 

Rowsell, Howard v., 7 B. W. C. C. 552 985 

Roxton V. Eastern Tps. Bank (1882) , Ramsay A. C. 240 521 

Roxton Falls, Beauregard v. (1904), 24 Que. S. 0. 474 659, 663 

Roy, Canadian Pacific Ry. v (1902). A. 0. 220; 71 L. J. P. C. 51 760 

Royal Electric v. Hgve (1902) , 32 S. C. R. 462 966 

Royal. Exchange, Cornfoot v. (1904) . 1 K. B. 40 980 

Royal Insurance Co. v. Montreal (1906) , 29 Que. S. C. 161 480 

Roy-ston Park and Steelton, Re (1913) ,13 D. L. R. 454 913 

Ruehljn, Tewksbury v.. 7 "N. H. 518 774 

Rudd, Maclean v. (1908) , 9 W. L. R. 283 743, 772 

Rudyk V. Shandro (1915) , 30 W. L. R. 689 ; 7 W. W. R. 1321 235 

Rughy Charity v. Merryweather, 11 East 376 909, 910 

Rugby School, Hayman v. (1874), L. R. 18 E<j. 28 ; 43 L. J. Ch. 834. . 331 

Rumball v. Metropolitan Bank (1877) , 2 Q. B. D. 194 519 

Russell V. Men of Devon. 2 T. R. 667 953 

, R. V. (1854) , 3 E. & B. 942 820 

, Wadsell v. (1915) , 8 B. W. C. C. 230 987 

Russell Provincial Election, Re (1879) , Hodgins 519 176, 177 

Rust V. Low, 6 Mass. 90 774 

Rutherford v. Murray (1911), 19 O. W. R. 976 ; 3 O. W. N. 29 7 

Rutland, Harrison v. Duke 6t (1893) , 1 Q. B. 142 ; 62 L. J. Q. B. 117. 914 
Ryan & AUiston, Re (1910), 21 O. L. R. 582; 22 O. L. R. 200. 

80, 84, 120, 197, 385 

, Roche V. (1891) . 22 O. R. 107 912, 917 

, Whelan v. (1891) , 20 S. C. R. 65 491, 1013 

Ryan v. Willoughby, 27 A. R. 135 71 

Ryde, Andrews v. (1874); L. R. 9 Ex. 302 ; 43 L. J. Ex. 174 ; 23 W. R. 

58 586 

Ryder, Leeds Corpn. v. (1907) , A. C. 420 ; 76 L. J. K. B. 1032 600 

Rylands v. Fletcher (1868) , L. R. 3 H. L. 330 ; 37 L. J. Ex. 161. 

734, 771, 963, 965 



Ixxyiii table op cases cited. 

S. 

PAGE 

Sabourin v. Berthiaume, R. ex rel. (1913), 4 O. W. N. 1201; 24 O. W. 

R. 559 ; 11 D. L. R. 68 90 

^■ac Oo., Cromwell v. (18T7) , 96 U. S, 51 520 

Saco, Lord v., 32 Atl. 887 ; 87 Me. 231 976, 978 

Sainsbury, Gundry v. (1910) , 1 K. B. 645 ; 79 L. J. K. B. 713 329 

Salkeld v. Johnston (1848) , 2 Ex. 256 .' 424 

Salt V. Scott Hall (1903), 2 K. B. 245 ; 72 L. J. K. B. 627. . . .347, 355, 793 

Salter and Beckwith, Re (1902) , 4 O. L. R. 51 118, 191, 

195, 368, 375, 412, 633 

Saltfleet, Egan v. (1913) , 29 O. L. R. 116 974, 980, 984 

S'altfleet Local Option By-law, Re (1908), 16 O. L. R. 293 174, 394 

Sam Kee, Re Glover and (1914) , 20 B. C. R. 219 ; 27 W. L. R. 886 . . 867 
S;an Francisco, Re Bahia and, L. R. 3 Q. B. 584 ; 37 L. J. Q. B. 176. .' 476 
Sandhurst (Lady), Beresford-Hope v. (1889), 23 Q. B. D. 79 ; 58 L. 

J. Q. B. 318 62, 102 

Sands, R. v. (1915) , 32 W. L. R. 775 ; 9 W. W. R. 129, 436; 25 M. R. 

690 728 

Sandwich, Thompson v. (1901) , 1 O. L. R. 407 709, 710 

Sangster v. Eaton (1893) , 25 O. R. 82 ; 21 A. R. 624 ; 24 S. C. R. 708. 958 

Sarnia v. Great Western Ry., 21 U. C. R. 59 917 

■ , Point Edward and Tp. of. In re (1879), 44 U. C. R. 461 41 

& iSarnia, In re Tp. of (1882) , 1 O. R. 411 41 

Sarsons, Woodward v., L. R. 10 C. P. 733 149, 150, 152. 154-6, 158, 194 

Saskatoon, Etter v. (1917), 3 W. W. R. 1110; 39 D. L. R. 1 961 

Saugeen, In re Southampton and (1906) , 12 O. L. R. 214 40 

S'ault Ste. Marie, R. v. (1910) , 16 O. W. R. 871 ; 1 O. W. N. 1144. ... 300 

Saunby v. Water Comrs. of London (1906), A. C. 110 551 

Saunders v. Holborn Dist. B. of W. (1895), 1 Q. B. 64; 64 L. J. Q. 

B. 101 780 

, R. T. (1854) , 24 L. J. M. C. 45 497 

V. St. Neots Union (1846), 8 Q. B. 810; 15 L. J. M. C. 104; 

10 Jur. 566 586 

V. Toronto (1899) , 26 A. R. 265 996 

Sawers v. Stevenson, In re, 5 L. J. 42 67 

Sawyer, Re (1887) , 124 U. S. 200 641 

Scales, R. v. (1917) , 41 O. L. R. 229 897 

Scales Mound. Phillips v. Town of, 63 N. E. 180 ; 195 111. 353 567 

Sceally v. McCallum (1862) , 9 Gr. 434 522 

Schauf's Admn. v. Paduoah, 106 Ky. 228 ; 50 S. W. 42 720 

Schmidt v. Berlin (1894) , 26 O. R. 54 719 

Sehofield, R. v., Cald. 397 243 

Sehuler, Edelstein v. (1902) , 2 K. B. 144 519 

Schumacher & Ohesley, Re (1910) , 17 O. W. R. 174 ; 21 O. L. R. 522. 

85, 89, 128, 133, 144, 145, 197, 306, 368, 378, 386 

(unreported) 85 

Schuster v. Chicago, 52 N. E. 855 568 

Sehwoob V. Michigan Central (1905) , 5 O. L. R. 86 948 

Soott, Gorris v. (1874) , L. R. 9 Ex. 125 ; 43 L. J. Ex. 92 583 

, Hervey v., R. ex rel., 2 C. L. Ch. 88 102 

Scott V. Patterson (1898) , 17 O. L. R. 270 365 

& Peterborough, Re (1867) , 26 U. C. R. 36 857 

V. PiUiner (1904) , 2 K. B. 855 349, 355 

& Tilsonburg, Re (1885), 10 O. R. 119 ; 13 A. R. 233 350, 

351, 650, 658, 673, 680 
Scott Hall, Salt v. (1903) , 2 K. B. 245 ; 72 L. J. K. B. 627. . .347, 355, 793 

Scottish Am. Invt. Co. v. Elora (1881) , 6 A. R. 628 .525, 658 

Scottish Ont. & Man. Land Co. v. Toronto (1896) , 24 A. R. 208 974 

Scully, Atty.-Gen.' v. (1902) , 33 S. C. R. 16 655 



TABLE OF CASES CITED. Ixxix 

PAGE 

Seaboard, Richmond v., 49 S. E. 512 ;...... 568, 569 

Seaford Corpn., Crook v. (1871), L. E. 6 Oh. 551; 25 L. T. 1; 19 

W. R. 938 585, 587 

Seafortti. Re Holmsted and (1910) , 2 O. W. N. 464 645, 658-9 

Searle, Higgins v. (1909) , 100 L. T. 280 915 

Sears, Pickard v., 6 A. & E. 469 476 

Seattle V.' Barto (1903) , 31 Wash. 141 ; 71 Pac. Rep. 735 '. . 433 

V. Sylvester-Cowen In-vt. Co. (1909), 55 Wash. 659; 104 Pac. 

Rep. 1121 433 

Secord v. Lincoln, 24 U. C. R. 147 408 

Seguin and Hawkesbury, Re (1912) , 23 O. W. R. 857 ; 4 O. W. N. 521. 1020 

Sellars v. Button (1904), 7 O. L. R. 646 1064 

Sellorg V. Matlock Bath (1885) , 14 Q. B. D. 928 853 

Semandie, R. ex rel. Fluett v., 5 P. R. 19 63 

Service & Tp. of Front of Escott, Re (1909), 13 O. W. R. 1215 145, 199 

Severn, R. v.. 2 B. & Aid. 646 933 

Seymour v. Plant, R. ex rel. (1904) , 7 O. L. R. 467 220 

Shandro, Rudyk v. (1915) , 30 W. L. R. 639 ; 7 W. W. R. 1321 235 

Sharon, Borst v., 24 N. Y. App. Div. 599 987 

Sharp, Beck v. R. ex rel. (1908) , 16 O. L. R. 267 225, 227 

V, Beck, R. ex rel. (1909) , 13 O. W. R. 457, 539 14, 55, 

63 64 212 213 

& Holland Landing, Re (1915) , 24 O. L. R. 186 .187, 229, 230 

Sharpe, R. ex rel. Burnham v., 31 O. R. 636 64 

Sliarpness v. Atty.-Gen. (1915) , 84 L. J. K. B. 917 933 

Shaw & Portage la Prairie, Re (1910) , 20 M. R. 469 ; 14 W. L. R. 

542 , 115, 370, 373, 374 

, R, V. (1891) , 7 M. R. 518 355-7, 754, 783 

& St. Thomas, Re (1899) , 18 P. R. 454 410 

Shawinigan Hydro-Electric v. Shawinigan W. & P. Co. (1912), 45 

S. 0. R. 585 440,, 441, 443, 444, 446, 947 

SheflJeld v. London Joint Stock Bank (1888) , 13 A. C. 333 519 

, R. V. (1871) , L. R. 6 Q. B. 652 ; 40 L. .T. Q. B. 247 436 

Shelburne and Queen's Election Case (1906) , 37 S.'C. R. 611 245 

Shelfer v. London Electric Lighting Co. (1895), 1 Ch. 287; 64 L. J. 

Oh. 216 • , 761 

Shelton, Harvej v., 7 Beav. 462 ! 577 

Sheppard v. Bonanza Nickel Co. (1894) , 25 O. R. 305 352 

Sherborne, Re McCracken and (1911) , 23 O. L. R. 92 346, 347, 361 

Sherwood v. Hamilton (1875) , 37 U. 0. R. 410 , 951 

Shibley, Asseltine v. (1905) , 9 O. L. R. 327 248 

Shirley, Mellis v. (1885). 16 Q. B. D. 446; 50 J. P. 214^ 55 L. J. Q. 

B. 143 ; 53 L. T. 810 ; 34 W. R. 187 586 

Shoreditch v. Bull, 90 L. T. 21 956 

, Kershaw v. (1906) , 22 T. L. R. 302 201 

Short, Jones v. (1900) , 64 J. P. 309 797 

Shragge and Winnipeg, Re (1910) ,20 M. R. 13 561, 562 

Shrewsbury, &c.. Bridge Co., Atty.-Gen. v. (1882), 21 Ch. D. 752; 

51 L. J. Oh. 746 -. 589 

Shultz, Fonseca v. (1891) , 7 M. R. 464 1054 

Shuniah, Vicherg v. (1875) , 22 Gr. 410 641 

Sidney, Re Ostrom and (1888) , 15 A. R. 372 371, 1018, 1022 

Siemens v. Dirks (1913) , 23 M. R. 581 469 

Sills v. Lennox & Addington (1900) , 31 O. R. 512 688 

& St. Thomas, Re (1853) , 3 C. P. 286 425 

Simc'oe, Fenton v., Re (1885) , 10 O. R. 27 23, 24, 408, 409, 411 

, Warwick v. (1900) , 36 C. L. J. 469 310 

, West Gwillimbury v., 20 Gr. 211 118, 254 

Siamo-nds, HUl v. (1913) , 14 D. L. R. 887 569 



IXXX TABLE OF GASES CITED. 

PAGE 

Simmons v. Chatham, 21 U. C. R. 75 408 

V. London Joint Stock Bank (1891), 1 Ch. 270; (1892), 

A. C. 201 519 

Simpson v. Belleville, Local Bd. of Health of (1917), 41 O. L. K. 320. 

329, 330 

, Jones v., 1 C. & J. 174 979 

, Mitchell v., 25 Q. B. D. 183 ; 59 L. J. Q. B. 355 6 

Sinclair and Owen Sound, Re f 1906) , 8 O. W. R. 460 ; 12 O. L. R. 488 ; 

13 O. L. R. 447 ; 39 S. C. R. 236 167, 181, 195, 196, 197 

Sion College v. London Corpn., 70 L. J. K. B. 396 650 

Skelton v. London & N. W. Ry. (1867) , L. R. 2 C. P. 631 719 

V. Thompson (1883) , 3 O. R. 14 779, 790, 1000 

, Warner v., R. ex rel. (1911), 23 O. L. R. 182. .209, 216, 220, 234 

Skinner v. Usher (1872) , L. R. 7 Q. B. 423 ; 4 L. J. M. C. 158 797 

Sklitzsky v. Cranston (1892) , 22 O. R. 590 912 

Slade, Cooper v. (1856) , 27 L. J. Q. B. 449 246 

Slattery v. Nay-lor (1888), 13 A. C. 446; 57 L. J. P. C. 73 353, 757, 861 

Slee V. Bradford Corpn. (1863) , 4 GifiE. 262 817 

Smart, Metcalfe v., R. ex rel., 10 U. C. R. 89 63 

. Philbrick v., R. ex rel., 5 P. R. 323 64 

V. Sprague (1917) , 11 W. W. R. 1537 \ ... 97 

Y. West Ham Union (1855), 10 Ex. 867; 20 J. P. 596; 25 L. 

J. Ex. 210 ; 26 L. T. (O. S.) 285 ; 3 C. L. R. 696 587 

Smethwick, Hopkins v. (1890) . 24 Q. B. 712 ; 59 L. J. Q. B. 250 816 

Smith V. Ancaster (1896) , 27 O. R. 276 358, 906, 907, 923 

, Atty.-Gen. v. (1910) , 103 L. T. 96 ; 74 J. P. 313 1046 

V. Baker (1891), A. C. 349 ; 60 L. J. Q. B. 691 6 

V. Baskerville (1914) , 24 M. R. 349 175, 180, 182, 229 

V. Bertie (Tp. of) (1913), 28 O. L. B. 330 1063, 1064, 1078 

v. Boutilier (1907) , 42 N. S. R. 1 745 

, Bugg v., R. ex rel., 1 C. L. J. 129 69 

V. Carey (1903) , 5 O. L. B. 207 185, 248 

, Oavanagh v., R. ex rel. (1885) , 26 O. R. 632 500 

V. Chorley D. C. (1897) , 1 Q. B. 678 795, 796 

. Dodge V. (1901), 1 O. L. R. 46 : 970 

V. Flood, 52 Sc. L. R. 471 ; 8 B. W. C. C. 613 . ; 985, 986 

V. Fort William P. S. Bd. (1893) , 24 O. R. 266 454 

V. Giddy (1904), 2 K. B. 448; 73 L. J. K. B. 894 786, 1043 

V. Greenwood (1907), 2 K. B. 385 ; 76 L. J. K. B. 1129 ' 786 

, HaroW v. (1860) , 29 L. J. IJx. 141 ; 5 H. & N. 381 329 

, K«rr v., Re, 24 O. R. 475 71 

, Lewis v., Holt N. P. 27 978 

, Little V. (1914) , 32 O. L. R. 518 951 

V. London, 20 O. L. R. 133 1 

V. Mcintosh (1906) , 13 O. L. R. 118 ; 8 O. W. R. 472 985 

McSloy v., 26 O. R. 508 .' m 

, Norris v., 10 A. & E. 188'; 50 R. R. 374 978 

V. Oakland (Tp. of) (1874) , 24 C. P. 295 459 

, Pickard v., 10 C. B. N. S. 470 968 

V. Plympton (1885) , 12 O. R. 20 573 

, R. V. (1816) , 5 M. & S. 133 740 

(1884) , 4 O. R. 401 841 

(1899), 31 O. R. 224 790 

33 C. L. T. 119 790 

T. Raleigh ,Tp. of) (1883) , 3 O. R. 405 500 

T. South Hampton (1885) , 10 A. C. 354 ; 54 L. J. Q. B. 577 438 

r. Southampton (1902), 2 K. B. 244; 71 L. J. K. B. 639. . . .482, 494 

V. Wentworth (1894) , 23 O. R. 209 1031 

V. West Deiiby, L. R. 3 C. P. D. 423 ; 47 L. J. C. P. 607 977 



TABLE OF CASES CITED. Ixxxi 

PAGE 

Smith's Falls, Sweeny v. (1805) , 22 A. E. 429 469, 477 

, Vernon v. (1892) , 21 O. R. 331 307, 332, 614 

Smyth V. Darley (1849) , 2 H. L. C. 789 '453 

, Hounsell v„ 7 C. B. N. S. 731 772 

Snell V. BelleviUe (1870) , 30 U. C. R. 81 1059 

Snider v. Richardson, R. ex rel., 3 O. W. R. 276 64 

Snouffer v. Chicago, 75 N. W. 501 568 

SolihaU Rural Ol., Great Western Ry. v., 86 L. T. 852 ; 66 J. P. 722. 

909, 910, 911 

Sombra v. Moore (1889) , 19 A. R. 144 994 

Somerville, Brohm v. (1906) , 11 O. L. R. 588 862 

Sorel V. Quebec Southern Ry. (1905), 26 C. L. T. 70; 36 S. C. R. 386. 672 

Soulanges Election Case (1885) , 10 S. C. R. 652 251 

Soulsby V. Toronto (1907) , 15 O. L. R. 13 719 

South Dumfries v. Clark (1909) , 14 O. W. R. 158 1032 

Frederlcksburgh Voters' List, Re (1908), 15 O. L. R. 308 79 

Grey Election Case, Re (1871). Hodgins 52 235 

Hampton, Smith v. (1885), 10 A. C. 354 ; 54 L. J. Q. B. 577. . . 438 
Loudon Tramways Co.. Rayson v. (1893), 2 Q. B. 304; 62 L. 

J. Q. B. 593 5 

Metropolitan Gas Co., London Cy. CI. v. (1904) , 1 Ch. 76 ; 73 

L. J. Ch. 136 583 

Norfolk, Hall v. (1892) . 8 M. R. 430 373 

Norwich, Re Huson and (1892), 19 A. R. 343.371, 372, 408, 409, 633 

Orange v. William Wittiugham (1897), 58 N. J. R. 655 447 

Oxford Provincial Election Case (1914), 32 O. L. E. 1 150, 158 

Plantagenet, Re Derby and (1890) , 19 O. R. 51 1065 

Shelshore Place, In re (1910) , 61 Wash. 246 ; 112 Pac. Rep. 228. 433 

Staffordshire, Hill v.' (1864) , 12 L. T. R. 63 16 

Vancouver, Anderson v. (1911), 45 S. C. R. 425; 20 W. L. R. 

434 ; 1 W. W. R. 729 262-8, 479 

Wentworth Election Case (1879) , Hodgins 531 156, 159 

Southall-Norwood, Speicer v. (1905) , 3 L. G. R. 641 ; 69 J. P. 308. . . . 586 

Southampton, Atty.-Gen. v. (1859) , 29 L. J. Oh. 282 547 

V. Bruce, In re (1904) , 8 O. L. R. 106, 664 23 

, Oslatt V. (1880) , 16 Ch. D. 143 ; 50 L. J. Ch. 31 239 

& Saugeen, In re (1906) , 12 O. L. R. 214 40 

, Smith V. (1902) , 2 K. B. 244 ; 71 L. J. K. B. 639. . . .482, 494 
Southborough, Tunbridge Wells v. (1888) , 60 n T. 172 ; 5 T. L. R. 107. 586 

Southend-on-Sea v. Archer (1901) , 70 L. J. K. B. 328 810 

Southern Brazilian Ry., In re (1905), 2 Ch. 78; 74 L. J. Oh. 392. ... 537 

Southwold, Howse v. (1912), 27 O. L. R. 29 970 

, McArthur and. Re (1878) , 3 A. R. 295 1014, 1016 

, R. V. (1907) , 71 J. P. 351 305 

Sovereen v. Edwards, R. ex rel. (1912) , 22 M. R. 790 23, 882, 1003 

, R. V. (1912) , 26 0. L. R, 16 728 

Sowler, Purcen v. (1877) , L. R. 2 C. P. D. 315 ; 46 L. J. C. P. 308. . . 270 
Speakman v. Calgary (1908) , 1 A. L. R. 454 ; 9 W. L. R. 264. .330, 331, 714 

Spact, Ferris v., E. ex rel., 28 O. R. 486 64 

Spegleman, R. v. (1905) , 9 O. L. R. 75 754 

Speirs, R. ex rel. Ingoldsby v., 13 O. W. R. 611 64 

Spence, Denver v., 82 Pac. Rep. 590 ; 34 Colo. 270 i . . 720 

Spencer v. Harding (1870) , L. R. 5 C. P. 561 ; 39 L. J. C. P. 332 .... 292 
V. Southall-Norwood (1905) , 3 L. G. R. 641 ; 69 J. P. 308. ... 586 

Spokane, Gerlach v. (1912), 124 Pac. Eep. 121 ; 68 Wash. 589 433 

Sprague, Sm'art v. (1917) , 11 W. W. R. 1537 97 

Siquire v. Campbell (1836), 6 L. J. Ch. 41 : ■, 1043 

St. Andrews, demons v., 11 M. R. Ill 573 

M.A. F 



Ixxxii TABLE OF CASES CITED. 

PAGE 

St. Ann's-Eleotion Case (1906) , 37 S. C. R. 563 234, 235, 242 

St. Boniface By-law, Re (1912) , 19 W. L. R. 943 ; 1 W. W. R. 759. . . 407 

, Knudson and, Re (1905) , 15 M. R. 317 402 

, Winnipeg and, Re (1913) , 14 D. L. R. 187 ; 25 W. L. R. 

618 .. 768 

St. Catherines, Edinburgh Life v. (1864) , 10 Gr. 379. . . 438 

, Elliot T. (1909), 18 O. L. R. 57; 13 O. W. R. 89. 

272, 279, 280 

; Hellemg v. (1894) , 25 O. R. 583 332 

& Lincoln, Re Corporation of (1881), 46 U. C. R. 425.38, 623 
St. Cesaire, Macfarlane v. (1886), M. L. R. 2 Q. B. 160; 14 S. C. R. 

738 522, 671 

St. George's, Bond t. (1870) , L. R. 6 C. P. 312 ; 40 L. J. C. P. 47. . . 86 

St. George's Southwark, Rolls v., 14 Oh. D. 785 ; 49 L. J. Oh. 691 917 

St. James' Westminster, Vernon v. (1880), 16 Ch. D. 449; 50 L. J. 

Oh. 81 853 

St. .lean, R. ex rel. Clancy v. (1881) , 46 U. 0. R. 77 215, 258, 322 

St. Jerome, Commercial Rubber Co. v. (1908), A. C. 444; 17 Que. 

R. K. B. 274 643 

St. John V. Campbell (1895) , 26 S. C. R. 1 953 

, Central Vermont Ry. t. (1887) , 14 S. C. R. 288 485 

, Crawford v., 34 N. B. R. 560 v 310 

, McSorley v. (1882) , 6 S. C. R. 531 310, 598 

V. Molleur (1908) , 40 S. C. R. 629 643 

, Robinson v. (1898) , 34 N. S. R. 503 522 

St. John, &c., Ry., Turner v., 42 N. B. R. 557 574 

St. Lawrence Fire Ins. Co., Bank of Toronto- v. (1903), A. C. 59 672 

St. Louis, Belanger v. (1912) , 8 D. L. R. 601 722 

V. Connecticut Mutual, 17 S. W. 637 780 

; V. Hughes, 73 S. W. 976 ,. 568 

V. Knapp, 61 S. W. 300 567 

V. Reaume, R. ex rel. (1895) , 26 O. R. 460 81, 190, 220 

St. Mary, Goodman v. Vestry of (1889), 23 Q. B. D. 154 ; 58 L. J. M. 

C. 122 1049, 1050 

St. Mary Islington, Barns v. (1911) , 76 J. P. 11 596 

St. Mary Newington v. Jacobs (1871), L. R. 7 Q. B. 47; 41 L. J. M. 

0. 72 909, 1050 

St. Mary Woolnoth, City and South London Ry. and. Re (1903). 2 K. 

B. 728 ; (1905) , A. C. 1 ; 72 L. J. K. B. 936 ; 74 L. J. K. B. 147. . 566 

St. Mary's, McQuillan v. (1899) , 31 O. R. 401 978 

, Stewart and. Re (1915) , 34 O. L. R. 183 363, 364 

St. Mary's Magdelen (College of) , v. Atty.-Gen., 6 H. L. C. 187 590 

St. Neots Union, Saunders v. (1846), 8 Q. B. 810; 15 L. J. M. C. 104; 

10 Jur. 566 ; . 586 

St. Pancras, Dyte v. (1872) , 36 J. P. 375 ; 27 L. T. 342 oS6 

St. Pierre, R. v. (1902) , 4 O. L. R. 76 897 

St. Thomas v. Credit Valley Ry. (1885) , 12 A. R. 273 671 

V. Credit Valley Ry. (1888) , 15 O. R. 673 672 

, Morton and, Re (1880) , 6 A. R. 323 '. 350 

, Shaw and. Re (1899) , 18 P. R. 454 410 

, Sills and. Re (1853), 3 C. P. 286 425 

, Way V. (1906) , 12 O. L. R. 240 652 

St. Vincent, Euphrasia v. (1916) , 36 O. L. R. 233 942, 943 

V. Greenfield (1886), 12 O. R. 297; 15 A. R. 567 908, 

1010, 1048 

Stacey, R. v. (1785) , 1 T. R. 1 216 

Staight V. McGee (1818) , 2 Stark. 445 .- 617 

Staines Urban 01., James v. (1900) , 83 L. T. 426 805 

Stalker V. Dunwich (1888) , 15 O. R. 342 1060 



TABLE OF CASES CITED. Ixxxiii 

PAGE 
Stamford, Canadian Niagara Power Co. v. (1914), 30 0. L. R. 384; 

50 S. C. R. 168 454, 055-6 

, Electrical Development Co. and, Re (1914), 30 O. L. R. ' 

391 ; 50 S. C. R. 168 454, 656 

, Ontario Power Co. and. Re (1914) , 80 O. L. R. 378 656 

Stanbury v. Exeter Corpn. (1906) , 75 L. J. K. B. 28 596 

Standard Life Assce. Co. v. Tweed (1903) , 2 O. W. R. 731 528 

Light & Power Co., Montreal v. (1897), A. C. 527; 66 L. J. 

P. C. 113 733 

Standish, Stewart v., R. ex rel. (1884) , 6 O. R. 408- 239 

Stanford, Clark y. (1871) , L. R. 6 Q. B. 35 ; 40 L. J. M. C. 151 860 

Stange, Flitton v. (1918), 24 W. L. R. 275 788 

Stanley v. Ferndale (1892) , 56 J. P. 509 758 

, Hewitt v., 6 B. W. C. C. 501; 109 L. T. 384; 1913, W. 

C. & I. Rep. 495 985 

Stanton v. Elgin, In re (1883) , 3 O. R. 86 319 

Stapleford, R. ex rel. Fitzgerald v. (1913) , 29 O. L. R. 136 90, 246 

Staples, Blaikie v., 13 Gr. 67 902 

Starland, Bloomfield v. (1915) , 31 W. L. R. 573 1020 

Starr v. Mayor of Exeter (1683) , 3 Lev. 116 322 

, Ilide V. (1910) , 21 O. L. R. 407 '.J13 

Starratt, R. ex rel. Evans v., 7 C. P. 19 261 

Start V. West Mersea School Bd. (1899) , 63 J. P. 440 ; 15 T. L. R. 442. 586 

Starting v. Bedford, 94 Iowa 194 ; 62 N. W. 674 988 

State V. Carroll, 38 Conn. 499 ; 9 Am. Rep. 409 260 

V. Gerhardt (1896) , 145 Ind. 439 23 

Staveley, Mitchell v. (1812) , 16 East 58 , 38 

Stebbing v. Metropolitan Bd. of Wks. (1871), L. R. 6 Q. B. 37 ; 40 L. 

J. Q. B. 1 566 

Steele v. Maher (1901) , 6 Can. Cr. Cas. 446 .781 

, Zimmerman v., R. ex rel., 5 O. L. R. 565 68, 91, 103 

Steelton, Re Roystou Park and (1913) , 13 D. L. R. 454 913 

Steeper, Crowe v. (1881) , 46 U. C. R. 89 % 743, 771 

Steeves v. Moncton (1914) , 17 D. L. R. 560 840 

Steinhoff v. Kent (1887) , 14 A. R. 12. , 951 

Stephens v. Calgary (1909) , 12 W. L. R. 379 330 

, Moon V. (1915) , 31 W. L. R. 832 772 

Stephenson, Canada Furniture Co. v. (1910) , 19 M. R. 631 6 

V. Cowan (1914) , 25 M. R. 67 23, 415 

, Jones V. (1900) . 32 O. R. 226 989 

V. Yokes (1896) , 27 O. R. 691 239 

Stepney Borough Cou;Beil, R. v. (1902), 1 K. B. 317 ; 71 L. J. K. B. 

238 332 

Stepney Election Case (1886) , 4 O'M. & H. 55 252 

Stevens v. Hunslow .Burial Bd. (1889), 55 J. P. 309; 61 L. T. 839; 

38 W. R. 236 587 

, Taylor v., R. ex rel., 7 P. R. 315 71 

Stevenson v. Glasgow (1908) , S. C. 1034 720 

, Jack V. (1910) , 19 M. R. 717 746, 774 

V. Kingston (1880) , 31 C. P. 333 329, 330 

, Sawers v., In re, 5 L. J. 42 67 

Stewart, B. C. Electric v. (1913) , 14 D. L. R. 8 769 

, Johns v., R. ex rel. (1888) , 16 O. R. 583 246 

, R. V. (1898), 1 Q. B. 552; 67 L. J. Q. B. 421 95, 103 

& St Marys, Be (1915), 34 0. L. B. 183 363, 364 

V. Standish, R. ex rel. (1884) , 6 O. R. 408 239 

, Toronto v. (1913). 4 O. W. N. 1027 ; 24 O. W. R. 323 870 

Stickney, Harrison v. (1897), 2 H. L. C. 107 493 

Stiles V. Galinski (1904) , 1 K. B. 615 ; 73 L. J. K. B. 485 355 



Ixxxiv TABLE OF CASES CITED. 

PAGE 

Stilliway v. Toronto (1881) , 20 0. R. 98 1000 

Stimsoii, In re Georgetown and (1892), 23 O. R. 33 426, 427, 472 

Stinton v. Brandon Gas Co. (1912) . 5 B. W. 0. C. 426 985 

Stock y. Davis, R. ex rel., 3 L. J. 128 64, 71 

Stockport, Kellett v. (1906), 70 J. P. 154 587 

Stockton & Middlesborough Water Bd. v. Kirkleatham Local Bd. 
(1893), 1 Q. B. 375; 62 L. J. Q. B. 180; (1893), A. C. 444; 63 

L. J. Q. B. 56 555 

Stoddart v. Owen Sound (1913), 27 O. L. R. 221 145, 165-7, 199 

Storey, Case v. (1868) , L. R. 4 Ex. 319 ; 38 L. T. M. C. 113 860 

S'tormont, Mack and Bd. of Audit of, Re (1911) , 25 O. L. R. 121 318 

, Rose and. In re (1862) , 22 U. C. Q. B. 531 924 

, Williamsburg and. Re (1908) , 15 O. L. R. 586 927 

Storr, Benjamin v. (1874), L. B. 9 C. P. 400; 43 L. J. C. P. 162,. 991, 1046 

Stradling v. Morgan (1571) , Plowd. 204 15 

Strand Union, Paine v. (1846), 8 Q. B. 326; 15 L. J. M. C. 89; 10 

Jnr. 308 586 

Strang v. Arran (1913) , 28 O. L. R. Ill 912, 944, 975, 979, 989 

Stratford. Campbell and. Re (1907), 14 O. L. R. 184 881, 890, 891 

, Hislop and, Re (1915) , 34 O. U R. 97 567 

, Pratt v., 14 O. R. 260; 16 A. R. 5 571, 932, 947, 1009 

. Pringle v. (1910) . 20 O. L. R. 246 454, 651, 653-5 

. Stratford P. S. Bd. v. (1911) , 2 O. W. N. 499 656, 656-7 

Stratford & H. Ry., and Perth. Re (1876) , 38 U. C. R. 112 671, 672 

Strathroy, Re Prangley and (1910), 21 O. L. R. 54 ; 1 O. W. N. 706; 

15 O. W. R. 890 144, 197 

Strauss, R. r. (1897) , 1 Can. Cr. Cas. 193 790 

Street. Park v., R. ex rel (1905) , 1 W. L. R. 202 212 

Stribell, Re Jones and (1909) , 10 W. L. R. 51« 191 

Strickland v. Hayes (1896), 1 Q. B. 290; 65 L. J. M. O. 55 346, 763 

Stroud, Beer v. (1888) . 19 O. R. 10 689, 784 

Election Case (1874) , 2 O'M. H. 184 .' 246 

Stuart V. Bank of Montreal (1909) , 41 S. C. R. 548 "7 

V. City of Montreal (1897) , Que. R. 6 Q. B. 555 642 

Sturgeon & Sturgeon Falls, Re (1901) . 2 O. L. R. 585 577 

Sturmer and Beaverton, Re, 2 O. W. N. 227 ; 19 O. W. R. 430 ; 24 O. 

L. R. 65 ; 25 O. L. R. 190, 567. .79, 87, 144, 167, 198, 386, 411, 413, 633 

Suburban, Bannatyne v. (1904) , 15 M. R. 16 1042 

Sullivan v. Church, R. ex rel. (1914), 26 O. W. R. 375; 6 O. W. N. 

116, 365 ; 12. 23, 54, 55, 212, 213 

, Gilchrist and. Re (1879) , 44 U. C. Q B. 855 425 

V. Missouri. 68 S. W. 745 567 

Summerfeldt, Hastings v. (1899) , 30 O. R. 579 145 

Sun Life, Venner v. (1889) , 17 S. C. R. 394 310 

Sunderland, R. v. Justice of (1901) , 2 K. B. 357 67, 600 

Sunderland, White v. Mayor of (1903), 88 L. T. N S. 592 817 

Surrey, Ohing v. (1909) , 78 L. J. K. B. 927 597 

, Wiltshire v. (1891) , 2 B. C. R. 79 521 

Sutherland, Cambridge v. (1914) , 6 W. W. R. 1219 6 

Sutherland-Innes Co. v. Tp. of Romney (1898), 26 A. R. 495 472, 474 

Sutton V. Dundas Electric Co. (1908). 17 O. L. R. 556 . . 965 

V. Port Carling (1902) , 3 O. L. R. 445 857 

Sutton Carder, Graham v. (1897) , 1 Oh. 761 410 

Swan River, Crabbe and. Re (1913), 23 M. L. R. 14- 22 W "l K 

860; 23 W. L. R. 373 '...'.345, 354 

Sweeney v. Smith's Palls (1895) , 22 A. R. 429 469', 477 

Sweetman v. Gosfield, In re (1889), 13 P. R. 293 ".'..".. 407, 410 

Sydenham School Section, In re (1903), 6 O. L R. 417; 7 o! L.'r. 49 ' 24 
Sydney, Atty.-Gen. of Canada v. (1914) , 49 S. O. R. 148 300, 301 



TABLE OF CASES CITED. IxxXV 

PAGE 

Sydney v. Bourke (1894) , 64 L. J. P. C/ 144 963 

Syers v. Metropolitan Bd. (1877) , 36 L. T. 277 ^ 550-1 

SylvesteivCowan Inv. Co., Seattle v. (1909), 55 Wash. 659; 104 Pac. 

Rep. 1121 433 



Taberner v. Wilson, R. ex rel., 12 P. R. 546 90, 91 

Ta£E Vale v. Amalgamated Socy. of Ry. Servants (1901), A. C. 426; 

70 L. J. K. B. 905 1065, 1079 

V. Pontypridd U. C. (1905) , 93 L. T. 126 911 

, Vaughan v. (1860), 5 H. & N. 679; 29 L. J. Ex. 247. .760, 

963, 964 

Talbot and Peterborough, Re (1906) , 12 O. L. R. 358 345, 355 

Tanguay, Canadian Electric Lighting Co. v. (1906) , 28 Que. S. C. 157. 707 
Tanner, Canadian Agency v. (191?), 6 Sask. L. R. 161. .24, 461, 463, 

464, 467 
Taprell v. Calgary (1913) , 3 W. W. R. 987 ; 23 W. L. R. 498 ; 5 A. L. 

R. 377 ; 10 D. L. R. 656 .432, 433, 434, 441 

Tarner v. Walker (1866) , L. R. 2 Q. B. 301 687 

Tarry v. Ashton, 45 L. J. Q. B. 260 968 

Tate, Cook v. (1894), 26 O. R. 403 743 

& Toronto, Re' (1905) , 10 O. L. R. 651 ; 6 O. W. R. 670 561 

Taylor v. Belle River (1909) , 18 O. L. R. 330 906, 1010 

, Corbett v. (1864) , 23 U. C. R. 454 498 

, Crozier v., R. ex reL, 6 L. J. 60 68 

v. Gage (1913) , 30 O. L. R. 75 947, 1009, 1019 

, Griffith V. (1876) , 2 C. P. D. 194 617 

, Hill v., & Ottawa (1904) , 9 O. L. R. 643 905 

, Meadow v. (1890) , 24 Q. B. D. 717 ; 59 L. J. M. C.'99 810 

, Morton v., 57 L. J. P. C. 79 69 

V. Nicholson (1915) , 8 B. W. C. C. 114 987 

, R. v., 2 Str. 1167 735 

(1895) , 59 J. P. 97 87 

, Ross v., R. ex rel. (1902), 22 C. L. T. Occ. N. 183 224, 228 

V. Stevens, R. ex rel., 7 P. R. 315 71 

V. Winsford U. C, 76 L. J. K. B. 897 1030 

Tegart, Richmond v., R. ex rel., 5 L. J. 42 67 

Telfer v. Allan, R.- ex rel., 1 P. R. 214 64 

Temiscaming, Wallace v. .(1906) , 37 S. C. R. 696 16 

Temiscaming Telephone O). v. Cobalt (1918) , 42 O. L. R. 385 ' 359 

Tenby Corpn. v. Mason (1908) , 1 Ch. 457 ; 77 L. J. Ch. 230 272 

Tessier v. Ottawa (1917) . 41 O. L. R. 205 1000, 1001 

Tewksbury, R. v. (1868) , L. R. 3 Q. B. 629 ; 37 L. J. Q. B. 288 102 

V. Ruchlin, 7 N. H. 518 774 

Theobald v. Criehmore (1818) , 1 B. & Aid. 227 617 

Therriault and Cochrane, Re (1914), 30 O. L. R. 367 481, 485, 488 

Thomas v. Canadian Pacific Ry. (1906) , 14 O. L. R. 55 613 

, Carter v. (1893), 1 Q. B. 673; 62 L. J. M. C. 104 803, 804 

V. Devonport (1900) , 1 Q. B. 16 ; 69 L. J. Q. B. 51 318 

v. North Norwich (1905) , 9 O. L. R. 670 948, 951 

V. Quartermaine (1887), 18 Q. B. D. 685; 55 L. J. Q. B. 340. 757 

Thompson, Jones v. (1858) , 27 L. J. Q. B. 234 38 

V. Sandwich (1901), 1 O. L. R. 407 709, 710 

. Skelton v. (1883) , 3 O. R. 14 779, 780, 1000 

Thor;^, MilHgan v. (1914) . 32 O. L. R. 195 .828, 829 

Thornbury, Re Kerr and (1906) , 8 O. W. R. 451 378 

Thornton v. Dewar, R. ex rel. (1895), 26 O. R. 512 .191, 227, 244 



IXXXVl TABLE OF CASES CITED. 

PAGE 

Thorold, Re Milne and (1911) , 25 O. L. R. 520 198, 387 

Tibbs V. Watts, &c., Co. (1909) , 2 B. W. 0. C. 164 985 

Tilbury East, Re Johnston and (1911) , 25 O. L. R. 242 24 

Tilsonburg, Falle v., In re (1973), 23 C. P. 107 906, 1010, 1020 

, Scott and, Re (1885), 10 O. R. 119 ; 13 A. R. 233. . . .350, 

351, 650, 659, 673, 680 

Tinkler, Crowder v. (1816) , 19 Ves. 617 735 

V. Wandsworth <1858) , 27 L. J. Ch. 342 786 

Tinning v. Edgar, R. ex rel. (1867) , 4 P. R. 36 102 

Tizzard, R. v., 9 B. & C. 418 386 

Todd V. Mager (1912) , 22 M. R. 136 96 

T. Meaford (1903) , 6 O. L. R. 469 551 

V. Robinson, 54 L. J. Q. B. 47 69, 72 

Tolliurst V. Associated Portland Cement Mfrs. (1903) , A. C. 414 642 

Tolmie v. Campbell, R. ex rel. (1902) , 4 O. L. R. 25. . . .126, 145, 192, 212 

Tompkins v. Brockville Rink (1900), 31 O. R. 124 780, 808, 811 

V. JollfEe, 51 J. P. 247 .- 71 

Topeka, Loan Assn. v. (1874) , 20 Wallace (U.S.) 655 661 

Toronto, Anderson v. (1908), 15 O. L. R. 643; 11 O. W. R. 338. 

950, 980, 984 

, Armstrong and. Re (1889) , 17- O. R. 766 341, 369, 

422, 423, 425, 1019 

, Atty.-Gen. v. (1864) , 10 Gr. 436 590, 716 

(1892) , 23 S. C. R. 514 349 

(1903) , 6 O. L. R. 159 ; 2 O. W. R. 539. . .547-8, 

590, 716, 844 

, Bannan v. (1892) , 22 O. R. 274 : 891, 892 

V. Bell Telephone Co., 6 O. L. R. 335; (1905), A. *C. 52; 74 

L. J. P. C. 22 594, 733, 766 

, Bowes V. (1858) , 11 Moo. P. C. 463 286, 323, 324, 637 

, Boyd* V. (1911) , 23 O. L. R. 425 947 

, Boyle and, In re (1913), 5 O. W. N. 9; 25 O. W. R. 67 15 

, Brewer and, Re (1909) , 19 O. L. R. 411 411 

, Brown v. (1910) , 21 O. L. R. 230 i 953 

, Brown and. Re (1916) , 36 O. L. R. 189 851 

, Butler V. (1907) , 10 O. W. R. 878 598 

, Canadian Pacific Ry. v. (1902) , 1 O. W. R. 255 797, 811 

, Carey v. (1885) , 11 A. R. 416 ; 14 S. C. R. 172 . . 913 

, Chadwick v. (1914) , 32 O. L. R. Ill 761- 

V. Consumers' Gas Co. (1897) , 27 S. C. R. 453 .-. 698 

(1903) , 5 O. L. R. 495 594 

(1914), 32 O. L. R. 21; (1916), 2 A. 

C. 618 698 

, Crown Tailoring Co. v., 33 O. L. R. 92 note 355 

, Darby v. (1889) , 17 O. R. 554 641, 699 

, t)avies v. (1877) , 15 O. R. 33 699 

, Davis and, Re (1891) , 21 O. R. 243 544 

V. Delaplante (1913) , 25 O. W. R. 16 ; 5 O. W. N. 69 869 

, Ewing V. (1898), 29 O. R. 197 950 

, Farquhar v., 71 U. 0. O. P.' 397 844 

, Fieldhouse v. (1918) , 43 O. L. R. 491 698 

V. Ford (1913) , 4 O. W. N. 1386 ; 24 O. W R. 717 870 

, Garfield v. (1894) , 22 A. R. 128 694 

V. Garfunkel (1912) , 22 O. W. R. 374 870 

, Gibson and. Re (1913) , 28 O. L. R. 20 565, 566 

, Gignec v. (1906) , 11 O. L. R. 616 949, 960, 951 

, Godden v. (1908) , 12 O. W. R. 708 844 

, Godson and, Re (1888), 16 O. R. 275; 16 A. R. 452; IS* 

S. C. R. 36 334 



TABLE OF CASES CITED. IxXXvii 

PAGE 
Toronto, Gooderham v. (1885), 21 O. R. 120; 19 A. R. 641; 25 S. 

0. R. 246 912, 913, 1047, 1049 

, Grand Trunk Ry. v., 6 O. W. R. 27 / 913 

, Grimshaw and. Re (1913) , 28 O. L. R. 5i2 562 

& Grosvenor St. Pres. Church, Re (1917), 41 O. L. R. 352. 

562, 579, 581, 582 

, Hayes v.. Ex parte (1856) , 7 U. C. C. P. 255 475 

, Henderson and. Re (1898) . 29 O. R. 669 1009 

, Hesketh v. (1898) , '25 A. R. 449 597, 752, 753, 803 

, Hobbs and, Re (1912) , 23 O. W. R. 8 ; 4 O. W. N. 31 867 

, Hodgins v. (1892) , 19 A. R. 537 1041, 1042, 1043 

, Hodgins and, Re (1909), 1 O. W. N. 31 480, 488 

, Ince T., 27 A. R. 414 . . '. 948 

, Inglis and. Re (1904), 8 O. L. R. 570; 9 O. L. R. 562. 

646-8, 1012, 1013 

, Kelly V. (1864) , 23 U. C. R. 426 .353, 842 

, Kennedy v. (1887) , 12 O. R. 226 1028 

, King V. (1903) , 5,0. L. R. 163 641, 700 

, Kirk V. (1904) , 8 O. L. R. 739 952 

, Lane v. (1904) , 7 O. L. R. 423 334-6 

, Lazarus v. (1859) , 19 U. C. R. 9 779 

, Leak v. (1900) , 31 S. C. R. 322 567, 571 

, Longbottom v. (1896) , 27 O. R. 198 975 

V. Lorsch, 24 O. R. 227 907, 1048 

, Macdonald t. (1897) , 18 P. R. 17 412 

and, Re (1912) , 27 O. L. R. 179 566, 567 

, Mackay v. (1917), 39 O. L. R. 34 ; 43 O. L. R. 17 (1920), 

A. C. 208 ' 711-713 

, MacPherson and. Re (1895) , 26 O. R. 558 567 

, Masonic Temple and, Re (1915) , 33 O. L. R. 497 854 

, McCann v. (1897) , 28 O. R. 650 905, 1000 

, McColl and. Re (1894) , 21 A. R. 256 562 

, McPherson v., 43 O. L. R. 326 715 

, Merritt v. (1895), 22 A. R. 207 349, 876 

(1912), 23 O. L. R. 365; 27 O. L. R. 1 ; 48 S. C. 

R. 1 110 

, Meyer and. Re (1914) , 30 O. L. R. 426 454-5 

, Michie and. In re (1862) , 11 0. P. 379 22, 408, 421, 431 

, Moore v. (1893) , 23 O. R. 69 718 

, Morrison v. (1906) , 12 O; L. R. 333 ; 7 O. W. R. 547.981, 983, 984 

V. Ontario & Que. Ry. (1892) , 22 O. R. 344 '. 671 

, Organ v. (1893) , 24 O. R. 318 780, 1000 

, Pells V. Bosfwell and (1885) , 8 O. R. 680 350 

, Petman v. (1807) , 24 A. R. 53 358 

, Prittie and. Re (1892) , 19 A. R. BOS 567 

, Pryce and. Re (1892) , 20 A. R. 16 566 

, Reynolds v. (1865) , 15 U. C. C. P. 277 841 

, Rogers v. (1914) , 31 O. L. R. 167 ; 33 O. L. R. 91 354, 

355, 809, 812-14, 824, 829, 871, 872 

, Saunders v." (1899) , 26 A. R. 265 996 

, Scottis'h V. (1896) , 24 A. R. 208 974 

, Soulsby V. (1907), 15 O. L. R. 13 719 

V. Stewart (1913) , 4 O: W. N. 1027 ; 24 O, W. R. 323 870 

, Stilliway v. (1891) , 20 0. R. 98 .• 1000 

, Tate and. Re (1905) , 10 O. L. R. 651 ; 6 O. W. R. 670 561 

V. Toronto Electric Light Co. (1905), 10 O. L. R. 621; 11 O. 

L. R. 319- 359 

• V. (1915), 33 O. L. R. 267; 

(1916), A. C 350, 768 



Ixxxviii TABLE OF CASES CITED. 

PAGE 
Toronto, Toronto P. S. Bd. v., 2 O. L. R. 727 ; 4 O. L. K. 468 ; 1 O. 

W. K. 443 294, 295, 453, 486, 491 

, Toronto Railway Co. v. (1893), A. C. 511; 63 L. J. P. C. 

10 ; 20 A. R. 125 ; 22 O. R. 374.359, 360 

V. (1906) , 13 O. L. R. 532 544 

- V. Toronto Railway Co. (1906), 12 O. L. R. 534, 584 340, 1048 

, Verner v. (1912) , 3 O. W. N. 586 446 

, Virgo V. (1896), A. C. 88: 65 L. J. P. C. 4 345, 353, 

750, 778, 849, 1023, 1046 

V. Wheeler (1912) , 3 O. W. N. 1424 ; 22 O. W. R. 326 870 

V. Williams (1912) , 27 O. L. R. 186 869 

, York v., 22 C. P. 51? 622 

Toronto, Bank of, v. St. Lawrence Fire Ins. Co. (1903), A. C. 59 672 

Toronto Corn Exchange, Cannon v., 27 Gr. 23 ; 5 A. R. 268 282, 453 

Toronto Electric Light Co., Gloster v. (1906) , 38 S. C. R. 27 965, 966 

, Toronto v. (1905), 10 O. L. R. 621; 11 

O. L. R. 319 359 

V. Toronto (1915), 33 O. L. R. 267; (1916), 

A. C 350, 768 

Toronto General Hospital, Brown v. (1893) ,' 23 O. R. 599.- 702 

Toronto, Hamilton & Buffalo Ry., Birely and, Re, 25 A. R. 88 918 

, Powell V. (1898), 25 A. R. 209 566 

Toronto Harbour Comrs., Hood v. (1876), 34 U. C. R. 87; 37 U. C. 

R. 72 , 820 

, Watson V. (1918), 42 O. L. R. 65 547 

Toronto Hydro-Electric System v. Toronto Ry., 45 O. L. R. 470 1001 

Toronto Junction, Bank of Commerce v. (1902) , 3-0. L. R. 311 310 

, Christie and. Re (1895), 22 A. R. 21 ; 25 S. C. R. 

551 40, 571, 576 

, Kelly and, Re (1904), 8 O. L. R. 162.262, 276, 277, 410 
Toronto & Niagara Power Co. v. N. Toronto (1912), A. C. 834; 82 L. 

J. P. C. 14 ; 25 O. L. R. 475 767 

Toronto & Nipissing Ry., Brock v. (1870) , 17 Gr. 425 522, 672 

(1873) , 37 U. C. R. 372 1032 

Toronto Plan M. 188, Re (1913), 28 O. L. R. 41 913 

Toronto Public School Bd. v. Toronto, 2 O. L. R. 727; 4 O. L. R. 

468 ; 1 O. W. R. 443 » 294, 295, 453, 486, 491 

Toronto Railway Co. v. Toronto (1893) . A. C. 511 ; 63 L. J. P. C. 10 ; 

20 A. R. 125 ; 22 O. R. 374. .359, 360 

(1906) , JL8 O. L. R. 532 544 

, Toronto v. (1906), 12 O. L. R. 534, 584 340, 1048 

, Toronto Hydro-Electric System v., 45 O. L. R. 

470 1001 

Toronto Street Ry., Atty.-Gen. v. (1868) , 14 Gr. 673 590 

Torquay, Brooks v. (1902), 1 K. B. 601 ; 66 J. P. 293 ; 71 L. J K. B. 

109 ; 88 L. T. 785 586 

Tottenham, Atty.-Gen. v. (1909) , 73 J. P. 437 482 

, Postmaster^General v., 8 L. G. R. 791 734 

, Rowley v. (1914) , A. C. 95 ; 83 L. J. Oh. 411 911 

V. Williamson (1896) , 2 Q. B. 353 ; 56 L. J. Q. B. 591. . .590, 

594, 1047 

Tough V. Hopkins (1904) , 1 K. B. 804 ; 73 L. J. K. B. 628 826 

Townsend MoMichael and, Re (1872) , 33 U. C. R. 158 1010 

Towsey v. White, 5 B. & C. 125 71 

Tozeland v. West Ham Guardians (1907) , 76 L. J K. B. 514 597 

Tozer v. Child, 26 L. J. Q. B. 151 231 

, Devonport v. (1903), 1 Oh. 759 ; 72 L. J. Oh. 411. .589, 1046, 1062 

Traversey v. Gloucester, 15 O. R. 214 921 

Trenton, Re Alliston and, (1917) , 28 O. W. R. 341, 579 404 



TABLE OF CASES CITED. Ixxxix 

PAGE 

Trepannier, Ferrier v. (1895) , 24 S. C. K. 91 779 

Trevenen, R. v. (1819) , 2 B. & Aid. 339 212 

Trickett, Dartford Union v. (1883), 58 J. P. 277; 59 L. T. 754; 5 

T. L. R. 619 587 

Trim, Rae v. (1880) , 27 Gr. 374 1010 

Trimble v. Hill (1879) , 5 A. C. 342 ; 49 L. J. P. C. 49 6 

TroUope, Leicester v. (1911) , 75 J. P. 197 586 

Trudel V. Hull (1903) , 24 Que. S. O. 285 484 

Truman, London B. & S. C. v. (1885) , 11 A. C. 45 ; 55 L. J. Ch. 354. 

698, 734, 760 
Truro Rural CI., Harvey v. (1903), 2 Ch. 638; 72 L. J. Ch. 705 .... 911 

Truscott, Cox v., 69 J. P. 174 69 

Trust & Loan Co. v. Hamilton (1858) , 7 C. P. 98 522 

Tuckersmith, Jones v., 30 O. L. R. 634 1016 

Tudor, Hogan & Tp. of, Re (1915) , 34 O. L. R. 571 800 

Tunbridge, Allen v. (1871) , L. R. 6 C. P. 48 ; 40 L. J. M. C. 197 860 

Tunbridge Wells v. Southborough (1888), 60 L. T. 172; 5 T. L. R. 

107 586 

Turnbull v. Pipestone (1915), 24 D. L. B. 281 ; 31 W. L. B. 595 573 

V. Vickers, 7 B. W. C. C. 306 987 

Turner, Howes v. (1876) , 1 C. P. D. 670 ; 45 L. J. C. P. 550 93 

V. Ringwood Highway Bd. (1870) , L. B. 9 Eq. 418 1043 

V. St. Jo'hn, &c.. By., 42 N. B. R. 557 574 

T. Walsh (1881) , 6 A. C. 642 ; 50 L. J. P. C. 55 .909, 912 

Turtle Mountain, Noble v. (1905), 15 M. R. 519 ; 2 W. L. R. 144. .971, 979 

Tweed, Standard Life Assce. Co. v. (1903) , 2 O. W. R. 731 528 

Two Mountains Election Case (1913) , 47 S. C. R. 185 97 

Tyler and International, R. v. (1891), 2 Q. B. 588 184 

U. 

Union Steamship Co. v. Melbourne Harbour Comrs. (1884), 9 A. C. 

368 ; 53 L. J. P. C. 59 977, 978 

United Bldg. Co. v. Vancouver, 3 W. W. R. 908; 24 W. L. R. 825; 

25 W. L. R. 403 ; (1915) , A. C. 345 ; 28 W. L. R. 787 636, 

639-641, 644 
United Kingdom, &c., Playford v. (1869), L. R. 4 Q. B. 706; 38 L. J. 

Q. B. 249 . 583 

United States Fidelity Co., Arnprior v. (1914), 30 O. L. R. 618 ; 51 S. 

C. R. 94 310 

United Telephone Co., Wandsworth B. of W. v. (1884), 13 Q. B D. 

904"; 53 L. J. Q. B. 449 916, 1010 

Unwin v. Fisher (1891) , 2 Q. B. 115 1042 

Upeher, Martins v., 3 Q. B. D. 622 088 

Upton V. Brown (1912) , 3 W. W. R. 626 726, 727 

Upton Snodsbury Highway Bd., Phelps v. (1885), 49 J. P. 408 587 

Usher, Skinner v (1872) , L. R. 7 Q. B. 423 ; 4 L. J. M. C. 158 797 

Utopia (The) (1893) , A. C. 492 820, 821 

Uxbridge, Castor v. (1876) , 39 U. C. R. 113 945 



V. 

Vagliano, Bank of England v. (1891), A. C. 144 ; 60 L. J. Q. B. 145. . 6 

Van Norman, R. v. (1909) , 19 O. L. R. 447 414, 687, 904, 1059 

Vance, Patterson v., R. ex rel. (1871) , 5 P. B. 334 222 

Vancouver v. Cummings (1912) , 46 S. C. R. 457 947, 949 

V. McPhalen (1911), 45 S. C. R. 194 626, 719 

938, 947, 953, 954-6 



XC TABLE OF CASES CITED. 

PAGE 

VancoHver, Northern Counties &, Re figOl), 8 B. C. R. 338 573 

, United Bldg. Co. v., 3 W. W. R. 908 ; 24 W. L. R. 825 ; 
25 W. L. R. 403 ; (1915) , A. 0. 345 ; 28 W. L. R. 787. 

636, 639-641, 644 

Vaudecar v. East Oxford (1878), 3 A. R. 131 1016 

Vandyke and Grimsby, Re (1906) , 12 O. L. R. 211 203, 

239, 259, 369, 410, 1019 

(1909) , 19 O. L. R. 402 . . . . , 369 

Vashon and East Hawkesbury, In re, 30 C. P. 194 67, 1020 

Vaughan, Dick v. (1917) , 39 O. L. R. 187 944 

, Fisher v., 10 U. C. R. 492 1017, 1020 

, Queen (The) v. (1868) , L. R. 4 Q. B.190 573 

R. V. (1769) , 4 Burr 2500 243 

V. TafE Vale (1860), 5 H. & N. 679: 29 L. J. Ex. 247. 

760. 963. 964 

Veal, Wood v., 5 B. & Aid. 454 909 

Veasie v. Rockland, 68 Me. 511 988 

Veley, Gosling v. (1847) , 7 Q. B. 406 102 

Venner v. Sun Life (1889) , 17 S. C. R. 394 310 

Verner v. Toronto, 3 O. W. N. 583 446 

Vernon v. Smith's Falls (1892) , 21 O. R. 331 307, 332, 614 

V. St. James' (1880) , 16 Oh. D. 449 ; 50 L. J. Oh. 81 853 

Verral, R. v. (1889) , 18 O R. 117 824 

Verrett v. McAuley (1884) , 5 O. R. 313 975 

Vespra v. Ciook (1876) , 26 C. P. 182 999 

, McCarthy v. (1895) , 16 P. R. 416 974' 

Viehers v. Shuniah (1875) , 22 Gr. 410 641 

Vickers, Jackson t. (1912) , 5 B. W. C. C. 432 987 

, TurnbuU v., 7 B. W. C. C. 306 987 

Victoria, British Can. v. (1911) , 11 B. C. R. 441 ; 19 W. L. R. 242. . . 851 

V. Patterson (1899) , A. C. 615 ; 68 L. J. P. C. 128 924 

V. Peterborough, 15 A. R. 620 935, 943 

Victoria Ry. Co., Fenelon Falls v. (1881) , 29 Gr. 4 907, 1048 

Vienna v. Roszkosz (1904) , 6 Terr. L. R. 51 478, 479 

Vine V. Wenham (1915) , 84 L. J. Oh. 913 908, 910 

Virgo V. Toronto (1896), A. C. 88; 65 L. J. P. C 4 345, 353, 

750, 778, 849, 1023, 1046 

Vivian and Whitewater, Re (1902) , 14 M. R. 153 36 

Vokes. Stephenson v. (1896) , 27 O. R. 691 239 

Von Velson, R. ex rel. Flater v., 5 P. R. 319 64 



W. 

Wadsell v. Russell (1915) , 8 B. W. C. C. 535 987 

Wagner, Cocks v. (1894) , 70 L. T. 403 797 

Wainfleet, Pickett and. Re, 28 O. R. 464 191, 194, 196, 375 

. Wilson and. Re (1883) , 10 P. R. 147 1009 

Wait, Cameron v. (1878) , 3 A. R. 175 1053, 1054 

Wakefield, Bent v. (1878) , 4 C. P. D. 1 688 

, V. West Riding (1865) , L. R. 1 Q. B. 84- 600 

Wakelin v. London & S. W. Ry. (1886), 12 A. C 41; 56 L. J. Q. B. 

229 • 627 

Wald, Winnipeg Electric v. (1909) , 41 S. C. R. 439 958 

Walford Rural CI., Att.v.-Gen. v. (1912), 1 Ch. 417- 81 L. J Ch. 281.. 912 

Walker, Giles v. (1890) , 24 Q. B. 656 ; 59 L. J. Q. B. 416 786 

V. Halifax, 4 R. & G. 371 ; (1893) , A. C. 530 978 

, Lee V. (1872) , L. R. 7 C. P. 121 ; 41 L. J. C. P. 91 808 

V. Mitchell, R. ex rel. (1868) , 4 P. R. 218 98, 114 

, Tarner v. (1866) , L. R. 2 Q. B. 301 687 



TABLE OF CASES CITED. XCl 

PAGE 

Walker's Trustees, Caledonian Ry. v., 7 A. C. 259 559, 560 

Walkerton, Erdmau v. (1892) , 15 P. R. 12 1000 

, Hefferuan v. (1903) , 6 O. U R. 79 276, 298, 611, 902 

Walkerville v. Walkerville Light Co. (1913)-, 5 O. W. N. 429 768 

Wallace V. Great Western Ry. (1877), 25 Gr. 86 ; 3 A. R. 44 670, 671 

V. Temiscaming (1906) , 37 S. C. R. 696 16 

Wallasey v. Gracey (1887) , 36 Oh. D. 593 590, 1047 

, Mason v. (1876) , 58 J. P. 477 853 

Walsh, Lancaster v. (1837) , 4 M. & W. 16 688 

, Metropo'litan v., 94 S. W. 860 567 

, Turner v. (1881) , 6 A. C. 642 ; 50 L. J. P. C. 55 909, 912 

, Warr v., R. ex rel. (1903) , 5 O. L. R. 268 93, 192, 216 

Walsingham, Hill v. (1849) , 9 U. C. R. 310 408, 459, 460 

Walton V. Freeborn, R. ex rel. (1901) , 2 O. L. R. 165 96, 216 

Wanamaker-v. Green (1885 ) , 10 O. R. 457 1020, 1054 

Wandsworth v. Golds (1911), 1 K. B. 60 ; 80 L. J. K. B. 126 913, 1029 

, Tinkler v. (1858) , 27 L. J. Ch. 342 786 

Wandsworth Bd. of Works, Cooper v. (1864). 14 C. B. N. S. 180; 32 

L. J. C. P. 185 815, 816 

' V. United Telephone Co. (1884), 13 Q. B. 

D. 904 ; 53 L. J. Q. B. 449- 916, 1010 

, Warner v., 53 J. P. 471 909 

Ward, Barnes ?., 9 C. B. 392 772 

V. Caledon (1892) , 19 A. R. 69 1000 

V. McBride (1911) , 24 O. L. R. 555 270 

, R. V. (1873) , L. R. 8 Q. B. 210 ; 42 L. J. Q. B. 126 216 

V. WeUand (1899) , 31 O. B. 303 420 

Warner v. Skelton, R. ex rel. (1911), 23 O. L. R. 182. . . .209, 216, 220, 234 

V. Wandsworth Bd. of Works, 53 J. P. 471 909 

Warnock v. Kleopfer (1887) , 14 O. R. 288 ; 15 A. R. 324 ; 18 S. C. R. 

701 201 

Warr v. London County Ol. (1904) , 1 K. B. 713 ; 73 L. J. K. B. 362. 

9, 549-550 

V. Walsh, R. ex rel. (1903) , 5 O. L. R. 268 93, 192, 216 

Warrington Election Case, 1 O'M. & H. 42 235 

Warwick v. Brooke (1901) , 2 O. L .R. 433 474 

V. Simcoe (1900) , 36 C. L. J. 461 310 

Waterloo v. Berlin, Re (1904); 7 O. L. R. 64 ; 8 O. L. R. 335. . . .775, 1035 

, Berlin and Judge of, Re (1914), 33 O. L. R. 73 337, 

338 339 607 

, Berlin and Tp. of. Re (1904), 3 O. W. R. 903 '....' 446 

, Brant and, Re (1860) , 1& TJ. C. R. 457 943 

, Davidson and. In re (1864) , 24 U. C. R. 66 319 

, Hamburg t. (1893), 22 O. R. 193 ; 20 A. R. 1 ; 22 S. C. R. 

296 919 

. McGuire v. (1906); 29 Que. S. C. 18S 480 

Waterous v. Brantford, 2 O. W. R. 897 ; 4 O. W. R. 355 648 

V. Palmerston (1890), 20 O. R. 411; 19 A. R. 47; 21 S. C. 

R. 556 ! . . 705 

Waterton, Re Hammond and (1890) , 62 L. T. 808 '.. 569 

Watford, Kerfoot v. (1893) , 24 O. R. 235 : 440 

, McGregor v. (1906) , 13 O. L. R. 10 912 

Watson, Companies Acts, E!x parte. Re (1888) , 21 Q. B. D. 301 481 

V. Gray (1880) , 4 Oh. D. 192 ; 49 L. J. C. H. 243 819 

, Martin v., R. ex rel. (1906), 11 O. L. R. 336 97, 192, 258, 322 

. McLean v., R. ex rel., 1 0. L. J. (N. S.) 71 71, 222 

V. Toronto Harbor Comrs. (1918) , 42 O. L. R. 65 547 

Watt V. Drysdale (1907), 17 M. R. 15- 349, 352, 774 



XCll TABLE OF CASES CITED. 

PAGE 
Watts, Bournesmouth v. (1884), 14 Q. B. t). 87; 49 J. P. 102; 54 L. 

J. Q. B. 93 ; 51 L. T. 823 ; 33 W. R. 280. 585 

V. Hemming (1907) , 71 J. P. 504 231 

, R. V; (1798) , 2 Esp. 675 819 

, Tibbs V. (1909) , 2 B. W. a C. 164 985 

Watterworth v. Buchanan, R. ex rel. (1897), 28 O. R. 352 163, 178, 190 

Waugh, R. v., Ex parte Crome, Times, June 2nd, 1892 271 

Way V. St. Tliomas (1906) , 12 O. L. R. 240 652 

Webb V. Comrs. of Heme Bay (1870), L. R. 5 Q. B, 642 ; 39 L. J. Q. 

_ B. 221 476 

, Lemmon v, (1891) , A. C. 1 ; 64 L. J. Ch. 205 1043 

Weber v. Berlin (1904) , 8 O. L. R. 302 695 

Webley v. Woolley (1871), L. R. 7 Q. B. 61 740 

Webster v. Cohen (1913), 6 B. W. C. C. 92; 108 L. T. 197; 29 T. L. 

R. 217 986 

, Coupland v., R. ex rel., 6 L. J. 89 281 

, R. V. (1888) , 16 O. R. 187 347, 756, 814, 819, 901 

Weiler, Josselsahn v., 9 L. G. R. 1132 ; 75 J. P. 513 912 

Welch. Potter v., 7 B. W. C. 0. 738; 83 L. J. K. B. 1852; (1914), 

3 K. B. 1020 ; 112 L. T. 7 ; 30 L. T. R. 664 986 

Welland, Ward v. (1899) , 31 O. R. 303 420 

Wellard, R. v., 14 Q. B. D. 63 ; 54 L. J. M. C. 296 783 

Wellesley, Hawke and, Re (1856) , 13 U. C. Q. B. 631 475 

Wellesley, Roe v. (1918) , 43 O. L. R. 214 961 

Wellington v. Wilson (1865), 14 U. C. C. P. 300; 16 U. C. 0. P. 124. . 924 

Welshpool Corpn., R. v.. (1876) , 35 L. T. 594 322 

Wenham, Vine v. (1915) , 84 L. J. Oh. 913 908, 910 

Wenlock v. River Dee (1888), 38 Ch. D. 534; 57 L. J. Ch. 946. 

24, 366, 439, 481, 482 

(1885), 10 A. C. 354 670 

Wentworth, Bolton v., Re (1911), 23 O. L. R. 394; 18 O. W. R. 795; 

2 O. W. N. 827 330 

V. Hamilton (1874) , 34 U. C. R. 585 628 

, LafCerty v., 8 U. C. R. 232 408, 1020 

, Smith V. (1894) , 23 O. R. 209 I... 1031 

V. West Flamiborough (1911), 23 O. L. R. 583 1006, 1054 

Wentworth Dominion Election Case, 36 S. C. R. 497 157 

West V. Bristol Tramways (1908), 2 K. B. 14; 77 L. J. K. B. 684. 

761, 963, 964 

, Haigh V. (1893) , 2 Q. B. 19 ; 62 L. J. Q. B. 532 918, 1043 

V. Montreal (1917) , 21 Que. K. B. 289 '. 292 

, ParMale v. (1887), 12 A. C. 602; 56 L,. J. P. C. 66 551, 571 

West Chicago v. Chicago, 50 N. E. 185 '568 

West Cork, Hatton v. (1883) , 23 Ch. D. 655 ; 52 L. J. Oh. 689 382 

Derby, Smith v., L. R. 3 C. P. D. 423 ; 47 L. J. 0. P. 607 977 

Elgin Election Case, 2 E. C. 41 ". .158, 159 

Plamborough, Wentworth v. (1911) , 23 O. L. R. 583 1006, 1054 

Gwillimbury v. Hamilton and N. W. Ry. (1876), 23 Gr. 383 671 

T. Simcoe, 20 Gr. 211 118, 254 

Ham Corpn., Atty.-Gen. v. (1910) , 2 Ch. 560 482 

Ham Guardians, Tozeland v. (1907), 76 L. J. Q. B. 514 597 

Ham Union, Smart v. (1855), 10 Ex. 867; 20 J. P. 596; 25 

L. J. Ex. 210 ; 26 L. T. (O.S.) 285 ; 3 O. L. R. 696 587 

Hartlepool Ry., Wilson v. (1865), 2 De. G., J. & S. 475 ; 34 L. J. 

Oh. 241 ; 11 L. T. 692 ; 11 Jur. (N. S.) 124 ; 13 W. R. 351 . . 587 

Huron Election Case (1898), 2 E. C. 58 159, 177, 179 

Huron Provincial Election, In re (1905), 9 O. L. R. 602.. 158, 

159, 175, 176 
Kootenay v. Nelson (1906), B. 0. R. 34 ; 3 W. L. R. 239 784 



TABLE OF CASES CITED. XClll 

PAGE 
West Lome Scrutiny, 23 O. L. R. 598 ; 25 O. L. R. 267 ; 26 O. L. R. 

339 ; 47 S. C. R. 451 89, 120, 174, 175, 229, 382, 386, 395, 398 

Mersey School Bd., Start v. (1899), 63 J. P. 440; 15 T. L. R. 

442 586 

Metropolitan, Gk)ldsmitli Co. v. (1904), 1 K. B. 1; 72 L. J. K. 

B. 931 971, 1013 

Nissouri, Cornwall v. (1875) , 25 U. C. C. P. 9 687 

. Henderson and. Re (1911) , 23 O. L. R. 651 413 

Oxford, Pow V. (1908) , 13 O. W. R. 162 919 

Riding, Wakefield v. (1865) , L. R. 1 Q. B. 84 600 

Wawanosh, Rose v. (1890), 19 O. R. 294 358, 594, 775, 1035 

Westbourne, Gillespie v. (1888) , 10 M. R. 656 533 

Westbury Election Case (1869) , 1 O'M. & H. 50 252 

Western District Council, Ramsay v. (1845) . 4 U. C. R. 374 306 

Westleigh Colliery Co., Hayward v., 8 B. W. C. C. 278 ; 84 L. J. K. B. 

661; (1915), A. C. 545; 111 L. T. 1001; 31 T. L. R. 215 986 

Westminster Corpn. v. London & N. W. Ry. (1904), 1 Oh. 759; 

(1905) , A. 0. 426; 74 L. J. Ch. 629 347, 348, 350, 852, 1035 

Westminster (Tp. of) v. Fox (1860) , 19 U. C. R. 203 525 

Weston V. Middlesex (1913) , 30 O. L. R. 23 .946, 948, 1055 

, Wynn and. Re (1907), 15 O. L. R. 1 ; 10 O. W. R. 1115. 

167, 181, 194, 196, 383 

Westwood, R. v. (1830) , 7 Bing. 1 293 

Wharton, John Deer v. (1915) , A. C. 330 ; 84 L. J. P. 0. 64 16, 344 

Wh«at V. Brown (1892) , 1 Q. B. 418 ; 61 L. J. M. C. 94 750 

Wheeler, Toronto v. (1912), 3 O. W. N. 1424; 22 O. W. R. 326 870 

Whelan v. Ryan (1891), 20 S. C. R. 65 .' 491, 3013 

Wheler v. Gihhs (1880) , 4 S. C. R. 430 212 

Whelihan v. Hunter (1903) , 2 O. W. R. 20 484, 495 

Whitaker and Mason, Re, 18 O. R. 63- 3 73 

Whitby, Arnit v. (No. 2) , 101 L. T. 14 911 

V. Grand Trunk Ry. (1901) , 1 O. L. R. 480 668, 670, 671 

, Higgins V. (1S60) , 2D U. C. R. 296 671 

, Perry v. (1855) , 13 U. C. R. 567 108 

, Port Whitby v., 18 U. O. R. 40 923 

, Rice V. (1898) , 25 A. R. 197 949, lOCO 

Whitchurch, Kelly v., 11 O. L. R. 155 ; 12 O. L. R. 83 969 

, Linstead v. (1916) , 35 O. L. R. 1 ; 36 O. L. R. 462 936 

, Pipher v. (1917) , 39 O. L. R. 244 981, 982 

White, Ashby v. (1703) , 2 Ld. Rayd. 938 ; 3 Ld. Rayd. 320 231 

V. Grand Trunk Pacific Ry. (1910) , 2 A. L. R. 546 788 

V. Louise (1891) , 8 M. R. 231 1016 

V. Morler (1899) , 2 Q. B. 34 ; 68 L. J. Q. B. 702 355 

, R. V. (1757) , 1 Burr. 333 827 

V. Sunderland (1903) , 88 L. T. (N. S.) 592 817 

, Towsey v., 5 B. & C. 125 71 

Whitely v. Barley, 57 L. J. Q. B. 143 f;8 

Whitewater, Re Vivian and (1902) , 14 M. R. 153 36 

Whitfield V. Bishop Auckland, Times, Nov. 22nd, 1897 690 

Whitley, Compagnie de Mayville v. (1896), 1 Ch. 788; 65 L. J. Ch. 729. 

281, 282 

Whyte V. McOlay, R. ex rel. (1889) , 13 P. R. 96 225 

Whyte Packing Co. v. Pringle (1910) , 42 S. C. R. 691 655 

Wickham, Xenos v., L. E. 2 H. L. 296 292 

Widdifield, Angus and, Re (1911) ,'24 O. L. R. 318 41, 376 

Widnes Corpn., Wood v. (1898), 1 Q. B. 463; 67 L J. Q. B. 244. ... 786 

Wigan, R. v. (1885) , 14 Q. B. D. 908 ; 54 L. J Q. B. 338 203 

Wigle V. Gosfield South (1901) , 1 O. L. R. 519 44 

V. Kingsville (1897) , 28 O. R. 378 365 



XCIV TABLE OP CASES CITED. 

PAGE 

Wigtown Election Case (1874) , 2 O'M. & H. 203 114, 153 

Wildfong, R. v. (1911) , 17 Can. Cr. Cas. 251' 781 

Wilkes, Espley v., L. E. 7 Ex. 298 ; 41 L. J. Ex. 241 912 

Wilkie V. Clinton (1871) , 18 Gr. 557 426, 479, 492, 499, 500 

Wilkins v. Day, 12 Q. B. D. 110 952 

William, Colonial Bank of Australasia v. (1874), L. E. 5 P. C. 417; 43 

L. J. P. G. B& 398 

Williams v. Barmouth (1897) ,77 L. T. 3831 340, 586 

& Brampton, Ee (1908), 17 O. L. E. 398. . .22, 23, 882, 1003, 1075 

V. Carwardine (1833) , 4 B. & STd. 621 ; 688 

V. Citizens (1883) , 40 Ark. 290 23 

V. Cornwall (1900) , 32 O. E. 255 11, 551 

V. Manchester Corpn. (1897), 45 W. R. 421; 13 T. L. R. 299. 305 

, Parton v.", 3 B. & Aid. 330 617 

, E. v., 1 Euss. 321 735 

, 3 R. c& Aid. 215 497 

, (1891) , 55 J. P. 406 830 

V. Richards (1893) , 23 O. E. 651 689 

, Toronto v. (1912) , 27 O. L. E. 186 , 869 

Williamsburg and Stormont, Ee (1908) , 15 O. L. R. 586 927 

WDliamson v. Elizabethtown (1904) , 8 O. L. E. 181 ; 2 O. W. E. 977. . 319 

, Hannings v., 52 L. J. Q. B. 416 69 

, Tottenham v. (1896) , 2 Q. B. 353 ; 56 L. J. Q. B. 591. 

590, 594, 1047 

WUlis Ave., In re, 22 N. W. 871 568 

WiUmott V. Barber (1880) , 15 Oh. D. 96 ; 49 L. J. Ch. 792 584, 585 

Willougbby, Eyan v., 27 A. E. 135 71 

Willson, York and, Ee (1880) , 8 P. E. 313 580 

V. York (1881) , 46 U. C. R. 299 .'. 332 

Wilson ». Delta Corpn. (1913) , A. C. 181 529 

, Fallis v., 9 O. W. R. 418 332 

V. Fleming (1901) , 1 O. L. R. 599 332 

& Ingersoll, In re (1894) , 25 O. R. 439 274 

V. Ingham (1895), 64 L. J. Q. B. 7T5 114, 225, 229 

V. Manes, 28 O. R. 419 ; 26 A. R. 398 : .80, 131, 133. 185, 232 

V. Middlesex (1859) , 18 U. C. R. 348 358, 1031 

, Nutton V. (1889) , 58 L. J. Q. B. 443 70 

, R. v., 20 C. L. T. 144 897 

, Taberner v.,, R. ex rel., 12 P. R. 546 90, 91 

& Wainfleet, Re (1883) , 10 P. R. 147 1000 

, Wellington v. (1865), 14 U. C. C. P. 300; 16 U. C. C. P. 124. 924 
V. West Hartlepool Ry. (1865), 2 De G. J. & S 475; 34 L. J. 

Ch. 241 ; 11 L. T. 692 ; 11 Jur. (N. S.) 124 ; 13 W. R. 351. 587 

V. Winnipeg, 4 M. R. 193 613, 1060 

Wilton V. Murray (1898) , 12 M. R. 35 689 

Wiltshire v. Surrey (1891) , 2 B. C. R. 79 521 

Wimbledon, Atty.-Gen. v. (1904), 2 Oh. 34; 73 L. J. Ch. 593 589, 

1046, 1062 
, Hunt V. (1878), 4 G. P. D. 48; 43 J. P. 284; 48 L. J. C. 

P. 207 ; 40 L. T. 115 ; 27 W. R. 123 330, 585, 586 

, R. Y. (1898) , 77 L. T. 590 305 

Wimborne, Groves v. (1898) , 2 Q. B. 402 811 

Winch, Zillwood v., 7 B. W. C. 0. 60 985 

Winchester, Chambers v. (1907) , 15 O. L. R. 316 336, 337 

Windebank v. Canadian Pacific Ry. (1915) , 25 D. L. R. 225 579 

Windham, O'Neil v. (1897) , 24 A. R. 341 952, 968, 969 

Windsor, Ayers v. (1887) , 14 O. R. 682 1009 

V. Canada Southern Ry. (1893), 20 A. R. 388 36, 44, 643 

, Fitzbridges v. (1914) , 5 O. W. N. 969 641, 662 



TABLE OF CASES CITED. XCV 

PAGE 

Windsor, Huth v. (1915) , 34 O. L. R. 249. 542 950, 951 

, McDougaU V. (1900) , 27 A. R. 566 623 

Windsor Election Case (1874) , 2 O'M. & H. 91 252 

Wing V. Amor (1909) , 10 W. L. R. 383 796 

Winnipeg, Canadian Pacific Ry. v. (1900) , 12 M. L. R. 581 ; 30 S. C. 

R. 558 454, 651 

, Davis V. (1914) , 24 M. R. 483 ; 28 W. L. R. 634 298, 903 

, Forrest v. (1909), 18 M. ^l. 440 951 

, Frankel v. (1913) , 23 M. R. 296 ; 8 D. L. R. 219 ; 3 W. W. 

R. 405 ; 22 W. L. R. 597 796 

, Garbutt v., 18 M. R. 345 598 

, Iveson V. (1906) , 16 M. R. 352 950; 951, 975, 976, 977 

, Kelly T. (1898) , 12 M. R. 87 355 

, Manning v. (1911), 21 M. R. 203 330, 714 

, Mitchell V. T1907) , 17 M. R. 166 ; 6 W. L. R. 35 976, 980 

, Ponton V. (1909) , 41 S. C. R. 366 330 

, Shragge and. Re (1910) , 20 M. R. 13 561, 562 

& St. Boniface, Re (1913) , 14 D. L. R. 187 ; 25 W. L. R. 618. 768 

, Wilson V. (1887) , 4 M. R. 193 613, 1060 

, Winnipeg Electric v. (1910) , 1 A. C. 494 ; 81 L. J. P. C. 193. 767 

Winnipeg Electric, Atty.-Gen. v. (1912) , 22 M. R. 761 589 

V. Wald (1909) , 41 S. C. R. 439 958 

V. Winnipeg (1910), 1 A. O. 494 ; 81 L. J. P. C. 193. 767 
Winnipeg School Trustees m. Canadian Pacific Ry. (1885), 2 M. L. R. 

163 454 

Wlnsford U- C, Taylor v., 76 L. J. K. B. 897 ; . . . 1030 

Winslow V. Balling, 1 N. B. Eq. 615 908 

Winterbottom v. Derby (1867), I.. R. 2 Ex. 316'; 36 L. J. Ex. 194,908, 991 
V. London Police Comrs. (1901), 1 O. L. R. 549.598, 607, 608 
Winterburn v. Edmonton Ry. (1908), 1 A. L. R. 298; 8 W. L. R. 815. 

747, 788 
Wirrall Rural CI., Andrews v. (1916) , 1 K. B. 853 ; 85 L. J. K. B. 853. 817 

Wishart v. Brandon (1887) , 4 M. R. 453 596 

Witham, Great Northern Ry. v. (1874), L. R. 9 C. P. 16; 43 L. J. C. 

P_ j 292 

Withington v"? Manchester (1893) , 2 Ch. 19 ; 62 L. J. Ch. 393 '. . 755 

, Midland v., 52 L. J. Q. B. 689 I 988 

Wittingham, South Orange v. (1897) , 58 N. J. R. 655 447 

Woburn, O'Brien v. (1904) , 184 Mass. 598 . : 950 

, Bedford v. (1900) , 176 Mass. 520 950 

Wolfe Tp. School Comrs., Legare v. (1914) , 20 R. de J. 287 487 

Wolfenden and Grimsby, Re (1914) , 5 O. W. N. 901 662 

Wood y. Canadian Pacific Ry. (1899) , 30 S. C. R. 110 788 

V. East Ham (1907) , 71J. P. 128 332, 586 

V. Goodwin (1904) , 36 Wash. 31 ; 78 Pac. Rep. 36 433 

V. Guillet (1895) , 10 M. R. 570 7 

V. Hamilton (1913) , 28 O. L. R. 214 844 

, Luther (Tp. of) v. (1892) , 19 Gr. 349 671 

, Maysville v. (1897), 102 Ky. 263 17 

V. Veal, 5 B. & Aid. 454 909 

V. Widnes Corpn. (1898) , 1 Q. B. 463 ; 67 L. J. Q. B. 244 786 

Woodforde v. Chatham (1904) , 37 N. B. R. 21 613 

Woodgate, Mercer v., L. R. 5 Q. B. 26 ; 39 L. J. M. C. 21 909 

Woodlands, Molison v. (1915), 30 W. L. R. 634; 32 W. L. R. 452; 

25 M. R. 634 24, 366, 461, 463, 465-7 

Woodruff, Little v., 5 S. W. 792 568 

V. Peterborough (1862) , 22 U. C. R. 274 685 

Woods V. Cressey, People ex rel. (1883) , 91 N. Y. 617 194 

T. Reed (1877) , 6 L. J. M. C. 105 ; 2 M. & W. 777 438 



XCVi TABLE OF CASES CITED. 

PAGE 

Woodstock, Baines v. (1905) , 10 O. L. R. 694 1000 

, Carleton Woolen Co. v. (1905), 26 C. L. T. 316; 3 N. B. 

Eg. 138 659 

, Chaplin v. (1889) , 16 O. R. 728 201, 203, 239 

V. Oxford (1910) , 22 O. L. R. 151 ; 44 S. C. R. 603' 38 

V. Woodstock Auto. Mfg. Co. (1913), 5 O. W. N. 540. 

641, 642, 644 

Woodward v. Sarsons, L. R. 10 C. P. 733 149, 150, 152, 154-6, 158, 194 

Woolcock, R. V. (1833) . 5 C. & P. 516 .' 300 

Wooley, Cooper v. (1867) , L. R. 2 Es. 88 ; 36 L. T. M. O. 27 827 

Woolatt, R. V. (1906) , 11 O. L. R. 544 843, 844 

WooUey, Webley v. (1871) , L. R. 7 Q. B. 61 740 

Worksop, Newcastle v. (1902) , 2 Ch. 145 ; 71 L. J. Ch. 487 842 

, R. V. (1857) , 21J. P. 451 494 

(1865) , 5 B. & S. 951 494, 496 

Worth, Percy v., R. ex rel. (1893) , 23 O. R. 688 217, 218, 220 

Wright, Atty.-Gen. v. (1897) , 2 Q. B. 318 ; 16 L. J. Q. B. 834 820 

, Denison and. Re (1909) , 19 O. L. R. 5 .35, 1013 

, Liverpool v. (1859) , 28 L. J. Ch. 868 329 

T. Portland, 118 Mith. 23 ; 76 N. W. 141 989 

V. Synod of Huron, 29 Gr. 348 ; 11 S. C. R. 95 642 

Wycombe, R. v., L. R. 2 Q. B. 310 933 

Wynn and Weston, Re (1907), 10 O. W. R. 1115; 15 O. L. R. 1. 

167,181, 194, 196, 383 
X. 

Xenos V. Wickham, L. R. 2 H. L. 296 292 

Y. 

Yabbicom v. King (1899) , 1 Q. B. 444 ; 68 L. J. Q. B. 560 «08, 809 

Yarmouth, Boswell v. (1879) , 4 A. R. 353 948, 1033 

, Fairbanks v. (1897) , 24 A. R. 273 990 

, Holden V. (1903) , 5 O. L. R. 584 990 

, Hubert v. (1889) , 18 O. R. 458 908, 933, 990 

, Macdonald v. (1898) , 29 O. R. 259 948 

Yeoman v. The King (1904) , 2 K. B. 29 ' 980 

York, Bennett v., 43 U. C. R. 542 923 

, Dunlop V. (1869) , 16 Gr. 216 ...:... 912 

, East Toronto v. (1899) , 16 O. R. 566 42 

, Fenton v. County of. In re (1880) , 31 C. P. 31 319 

, Holland v. (1904) , 7 O. L. R. 533 990 

, McBride v., 31 U. C. R. 355 943 

V. Toronto, 22 C. P. 514 622 

& Willson, Re (1880) , 8 P. R. 313 580 

. Willson V. (1881) , 46 U. 0. R. 299 332 

Yorkshire, R. v. West Riding of (1770) , 5 Burr. 2594 933 

Young & Binbrook, Re (1899) , 31 O. R. 108 194, 197 

V. Bruce (1911) , 24 0. L. R. 546 978 

& Harston's Contracts, In re (1885) , 31 Oh. D. 168 185, 232 

V. Leamington (1883), 8 A. C. 517; 52 L. J. Q. B. 713; 47 J. 

P. 660 ; 49 L. T. 1 ; 31 W. R. 925 330, 585, 988 

, R. V. (1866) , 10 Cox C. C. 371 ; 781 

Z. 

Zastre, Dalziel v. (1910), 19 M. R. 353 . . '. 745, 774 

Zellickson, R. ex rel. Gunder Bjorge v. 1910) , 13 W. L. R. 433 194 

Zillwood V. Winch, 7 B. W. C. C. 60 985 

Zimmerman v. Steele, R. ex rel., 5 O. L. R. 565 68, 91, 103 



The Municipal Act 



REVISED STATUTES OF ONTARIO, 1914. 



CHAPTER 192. 

As amended by 4 Geo. V. c. 33; 5 Geo. V. c. 34; 6 
Geo. V. c. 24; s. 27 c. 39; 7 Geo. V. c. 42; 8 Geo. 
Y. c. 32 ; 9 Geo. V. c. 46. 

All Act respecting Municipal Institutions. 

His Majesty, by and with the advice and consent of 
the Legislative Assembly of the Province of Ontario, 
enacts as follows : — 

PRELIMINAKY. 

1. This Act may be cited as The Municipal Act, 
3 Edw. VII. c. 19, s. 1, part. 3 & 4 Geo. V. c. 43, s. 1. 

Natnre of Municipal Institutions. — In Smith v. City of London, 
1909, 20 O. Ii. R. 133, an application was made to obtain an injunction 
restraining the City of London from acting on a contract said to be 
invalid, with the Hydro-Electric Power Comm^sion, for the supply to the 
corporation of electrical power or energy for the use of the corporation and 
the inhabitants thereof. The object of the contract was to procure electri- 
cal power to sell, 'thus what is popularly called municipal trading, was 
involved. 

It was urged for the plaintiff that private business i^ outside munici- 
pal functions, and that the Legislature could not give these private func- 
tions to a municipal body. This led to a discussion of the nature of 
municipal institutions in the D. C, the unanimous judgment of the Court 
being given by Boyd, C. In the course of the judgment, the following 
account of the development and nature of municipal institutions in Ontario 
was given : — 

"These Acts (the Acts under which the City of London had 
made the contract in question) upon their face, by their very titles, 
claim to be classified under the heading of ' Municipal Institutions in 
the Province:' British North America Act, 1867, s. 92^(8). The 
main Act is intituled 'to provide for the Transmission of Electric 
Power to Municipalities,' 6 Edw. VII., c. 15 ; and the next one, to 
validate by-laws and contracts made under the former. They are all 

M.A. 1 



NATURE OF MUNICIPAL INSTITUTIONS. 

in pari materia. They deal with the transmission of electricity from 
Niagara Falls through and to various municipalities, mailing it avail- 
able for all municipal corporations who apply. The installation of 
electric plant in the City of London would be per se ' a , local work 
or undertaking,' a matter merely of local or private nature in the 
province : ih. s. 92, Nos. 10 and 16. Such legislation in England 
always falls under the heading of ' Local Acts.' 

" The ' establishment of municipal Institutions for the whole 
country ' was recommended by Lord Durham's report of 1839, and the 
term ' Municipal Institutions ' passed into statutory language and 
significance in 1858 : 22 Vict., 1st sess., c. 99, ' An Act respecting the 
Municipal Institutions of Upper Canada,' and thence it is carried into 
the C. S. U. C, 1859, c. 54, which practically codified the municipal 
law of the propince as it then was and as it continued to be till the 
date of Confederation in 1867. The term ' Municipal Institutions ' 
appears intended to give compendious expression to the state of affairs 
which exists in a defined populated area, the inhabitants of which are 
incorporated and intrusted with privileges of local self-government or 
administration responsive to the needs, the health, the safety, the com- 
fort, and the orderly government of an organized community. As put 
by Lord Herschell in ' The Liquor Prohibition Appeal of 1895 ' 
(bound volume in the Library of the Law Society of Upper Canada. 
See also S. C, sub-nom. Attorney-General for Ontario v. Attorney- 
General for the Dominion, [1896] A. C. 348) , when speaking of its 
use in the British North America Act, ' Municipal Institutions ' deals 
with two things, the constitution of municipalities or municipal bodies 
and their functions (argument at p. 35). Having created the muni- 
cipality, the province is able to confer upon that body any or every 
power which the province itself possesses under the Confederation Act. 
In the same case Lord Watson expresses the opinion : ' The province 
might give the local body new powers and functions so long as thesR 
were powers and functions which the legislature of the province could 
exercise and legislate upon, and could therefore delegate to a muni- 
cipal body: ib., p. 44. These powers, he says again (p. 45), are to 
be administered for the benefit of the public and the inhabitants of 
the municipality. In the same case, at p. 51, this is to be found : 
Lord Davey : ' Suppose you would say that municipal institutions 
. . . . would include, for instance, the creation of a market and 
municipal police.' . . . Lord Watson : ' Or a separate body of 
commissioners for the purpose of supplying the locality with water ; 
I should say all these were municipal institutions ... or institu- 
tions created for the benefit of the particular municipality.' Lord 
Davey : ' And I should suppose it might include the establishing a 
gas works.' Lord Herschell : ' I should think it included every local 
body and every power that you can confer upon that local body :' ib-, 
pp. 51, 52. Lord Morris suggests, at pp. 54, 55, that the enacting 
part of s. 92 (8) should be read in this way : ' In each province the 
legislature may exclusively make laws in relation to matters coming 
within municipal institutions in the province.' And Lord Herschell 
considers that ' Municipal Institutions ' refers not so much to the 
powers or functions as to the corporate body upon which the power 
or function is bestowed : p. 54. 

" Be that as it may, it is pertinent to look at the Municipal In- 
stitutions Act existing at Confederation to see what subjects and 
powers were embraced in it or conferred by it. In particular we find 
that before Confederation municipal bodies were empowered to supply 
gas and water for public and also for private use and consumption ; 
29 & 30 Vict. c. 51 (1866), ss. 2, 3 and 4, of which give to the muni- 
cipality the same powers as are possessed by private stock companies 
incorporated under C. S. C., 1859, c. 65, for supplying cities, towns, 
and villages with gas and water. Section 65 shews that the gas and 
water is to he supplied to private persons. When it is remembered 
that gas is available for heat and motive power, as well as for light, 
it is an easy step to say that it is equally right and proper to supply 
the new commodity, electricity, for purposes of light, heat, and power 
to the municipality and its inhabitants. The statute in hand then 
purports to confer a new power upon municipalities, and ,that power 



NATUEE OF MUNICIPAL INSTITUTIONS. 6 

relates to ,the management and administration of a local undertaking, 
i.e., the transmission of electrical energy for the common good of the 
inhabitants, in its public and private use. 

" The provincial legislation in its course and development has 
been akin to that on the subject of lighting in 'England. The sup- 
ply of gas by private companies preceded the manufacture and supply 
of gas for general use by municipal bodies. We are told by Mr. 
, Clifford that Parliament has repeatedly refused to allow even muni- 
cipal bodies to supply gas in competition with existing gas companies, 
and has always stipulated that if corporations want such a power 
they must buy the gas works : History Of Private Bill Legislation, 
vol. 1, p. 232 ra. (1886). 

" And when electricity began to come to the front, the course of 
procedure was the same in regard to electric lighting companies : first 
the private company and then the option to purchase given- to the 
municipal body. The English Electric Lighting Act of 1882 gives 
power to local authorities to supply light by license under a special 
Act (this for private as well as public purposes), and the expenses 
are to be defrayed out of local rates' (ss. 7, 8 and 27). I may quote 
a summary of the situation in the mother country from Lord Court- 
ney's book on the working constitution of the United Kingdom 
(1890). He says: 'Among the other duties of borough councils is 
that of seeing that the communities are adequately supplied with 
lighting and water. Gas and water works were, however, in most 
cases originally undertaken by private companies under local Acts of 
Parliament, and are, indeed, in many cases still so promoted. Newer 
systems of electric lighting have often, perhaps generally, been started 
under licenses from local authorities for a term of years. Most of 
the larger boroughs have, however, taken over and extended the gas 
and water works supplying their area, and some have started electric 
lighting. There is a clear tendency on the part of the municipalities 
to undertake these functions for themselves, applying at least some 
of the profits that may be realized in diminution of rates:' p. 242. 
He then speaks of tramways and concludes : ' These are examples of 
a process known as the extension of municipal trading, the policy of 
which is still in dispute :' p. 243. He says further : ' There are signs 
that the provision of electric power may, in appropriate places, come 
within the range of municipal enterprise. One ground of objection 
to the movement is found in the apprehension that popularly elected 
bodies may work these undertakings in the interest of working men 
voters rather than on commercial ■principles ; but so far it cannot be 
said that experience has proved this danger to be substantial:' p. 243. 
" Though thus referred to as municipal trading, the supply of 
light, whether by gas or other illuminant, is a proper function of 
municipal administration. So to hold does not' at all infringe upon 
the meaning of ' trade and commerce,' as used in the British North 
America Act, where exKilusive power is conferred upon the Dominion 
to legislate as to the regulation of trade and commerce (s. 91 (2)). 
■These words would point to political arrangements in regard to trade, 
rgfluiring the sanction of Parliament, regulation of trade in iuatters 
of inter-provincial concern, and the like, as indicated in Citizens' In- 
surance Co. V. Parsons, 7 App. Cas. 96, 110; but the comment of 
Lord Herschell on that case, in ' The Liquor Prohibition Appeal of 
1895,' was that it ' allowed to the Provincial Legislature a very con- 
siderable power of dealing with trade within its own limits — within 
its own borders :' p. 115. And he says again, at p. 104 : ' You may 
give a very broad construction to 'trade and commerce,' and yet it 
may be that it would still leave open a very large power of dealing 
in such a way as to incidentally affect trade without its being a part 
of the regulations made within such meaning.' 

" It appears to me that the Privy Council has passed upon this 
very point in reference to the provincial regulation of electric light 
and power in Hull Electric Co. v. Ottawa Electric Co., [1902] A. 0. 
237. A Quebec statute legalized a contract made by a municipal coun- 
cil for procuring a supply of electricity for light, heat and motive power 
for thirty-five years for the use of the municipality and its inhabitants. 
The validity of that legislation was attacked on much the same 



N^TUHE OP MUNICIPAL INSTITUTIONS. 

grounds as are advanced here, viz., that electric light was a commercial 
commodity and as such fell within the exclusive competence of the 
Dominion Parliament to regulate trade, and that a monopoly had been 
created beyond the municipal power. These points were in contro- 
versy in the Courts below, in the first or primary Court, then in 
review in the Superior Court, and lastly in the Court of Queen's 
Bench, with varied successes and reverses. But when it came before 
the Judicial Committee the attack upon the by-law and the statute 
was abandoned. Upon this abandonment Lord Macnaghten, giving 
the judgment of the Privy Council, said : ' It is obviously untenable. 
The schem'e in favour of which the by-law was passed was a purely 
local undertaking. As such it came within the exclusive jurisdiction 
of the Provincial Legislature, and not the less so because in such 
cases it is usual and probably essential for the success of the under- 
taking to exclude for a limited time the competition of rival dealers:' 
p. 247. That decision, though on a Quebec statute, is of equal force 
as to Ontario — the municipal system in both provinces being organized 
and developed on the same lines. 

' Whether or not the distribution of electricity to private per- 
sons at a fixed price can fairly be called ' trading,' it is not needful 
to consider. Neither is it in place to consider what forms of munici- 
pal trading or industrial undertakings should be encouraged by the 
Legislature or what forbidden. Nor on what te6ns the permission 
should be granted. All such matters of discretion or expedience or 
advantage rest with the law-making body, and are subject to the 
exercise of its plenary power. 

" But it is perhaps well to deal with the proposition ^advanced 
that the supply of house-light is a purely private matter, and that no 
public body can interfere with the right of a man to use any kind of 
light he pleases, and that there is no right to tax him for t\m supply 
of special light to other people. No doubt, this scheme for electrical 
light contemplates local taxation to defray the expenses of instalment 
and operation — though it is hoped that after a while the undertaking 
will carry itself, will defray the initial cost, and, it may be, yield a 
surplus for the general benefit of the inhabitants. The term of forty 
years for the subsistence of the contract is fixed between the Com- 
mission and the corporation, so that full opportunity may be given 
to work out beneficial and profitable results to both parties. I note 
in the English Electric Lighting Act of 1888 a period of forty years is 
given for the operation of a private undertaking before compulsory 
purchase can be enforced by the local authority. 

" Taxation of a given locality to meet the expense of a business 
undertaking in that place should only be imposed if it is for the 
general benefit of the community. To install or support a private 
trade or business has not been considered as of municipal cognizance 
to be undertaken by the municipality. It is to be left to private 
enterprise. In the present development of economic utilities, it may 
become a question of kind and degree and availableness whether or 
not the promotion of the interests of the large aggregation of the 
inhabitants constitutes a public service or not. In regard to electric 
light from Niagara Falls, these considerations enter into the question; 
the individual cannot procure his own supply of electricity ; it has to 
come to him by means of material conveyance over private and public 
property — streets and highways — which cannot be used without a 
right of franchise or expropriation. The transmission and storing and 
distribution of electrical energy necessitate a system of control and 
regulation for the interests of public and private safety.. If economic 
and convenient use of electricity is to be obtained, these desiderata 
exclude the undertaking from the area of private enterprise and an 
ordinary business. It is removed within the range of municipal 
institutions. The proper uses and enjoyment of such a service affects 
the citizens as a community and not merely as individuals. The self- 
interest of the few must give way to the common interests of the 
whole body of incorporated inhabitants represented by the vote of the 
majority. The general proposition, as in effect expressed by the Mas- 
sachusetts Bench, may be adopted as a good working rule on this 
head, viz., that matters which concern the welfare and convenience 



NATURE OF MUNICIPAL INSTITUTIONS. 5 

of all the inhabitants of a city or town and cannot be successfully 
dealt with apart from the aid of powers and privileges derived from 
the Legislature, may be subjected to municipal control when the 
benefits received are such that each inhabitant needs them or may 
need them and may participate in them, and it is for the interest of 
each inhabitant that others as well as himself , should possess and 
enjoy them. See opinion of the Justices of the House of Representa- 
tives, 150 Mass. at p. 597 (1890). 

" The supply of light by means of gas or electricity, with the 
incidental advantages of heat and motive power connected therewith, 
appear to be a proper municipal function. The primary need, no 
doubt, is as to public places (streets and buildings, etc.) ; yet the 
vending of the commodity to private consumers is a convenient and 
comparatively inexpensive accompaniment. Both go far to promote 
the convenience, comfort and safety of all members of the municipality. 

" I have no difficulty in deciding that as to the main and central 
question here agitated, as to the power of the City of London to 
engage in the business of acquiring and distributing electric energy, 
that it is one of the incidents of municipal government, whether or 
not in competition with private concerns is of no material significance 
in the constitutional aspect of this legislation. 

" The Provincial _ Legislature has power to establish electrical 
works as a local work or undertaking under another clause of the 
Confederation Act. s. 92 (10). Consequently, it has power to dele- 
gate this undertaking to a competent municipal body." 

The Act is a Consolidation Act. — The Municipal Act. R. S. O. 
1914, c. 192, is a Consolidation Act. This follows from 3 and 4 Geo. Y., 
c. 2, s. 9, which brings into force R. S. O. 1914, which is as follow_s : — 

" 9 (1), The Revised Statutes shall not be held to operate as new 
laws, but shall be construed and have effect as a consolidation of the 
law as contained in the Acts and parts of Acts so repealed, and for 
which the said Revised Statutes are substituted, and the Legislature 
is not to be deemed to have adopted the construction which may by 
judicial decision, or otherwise, have been placed upon the language of 
any of the statutes included amongst the Revised Statutes. 

"(2) The various provisions in the Revised Statutes corresponding 
to and substituted for the provisions of the Acts and parts of Acts 
so repealed, shall, where they are the same in effect as those of the 
Acts and parts of Acts so repealed, be held to operate retrospectively 
as well as prospectively, and to have been passed upon the days 
respectively upon which the Acts and parts of Acts so repealed came 
into effect. 

" (3) If upon any point the provisions of the Revised Statutes 
are not in effect the same as those of the repealed Acts and parts of 
Acts for which they are substituted, then as respects all transactions, 
matters and things subsequent to the tirne when the Revised Statutes 
take effect, the provisions contained in them shall prevail, but as 
respects all transactions, matters and things anterior to the said time, 
the provisions of the said repealed Acts and parts of Acts shall 
prevail. 

" (4) The marginal notes and headings in the body of the Re- 
vised Statutes and references to former enactments, and sections printed 
in bourgeois type which may appear thereon, shall be held to form 
no part of the said Statutes but to be inserted for convenience of 
reference only." 

Headings.' — ^While the headings and Marginal notes form no part of a 
Statute, a Court will, in doubtful cases, look at the headings and marginal 
notes. The Master in R. ex rel. Carr v. Cuthbert, 1901, 1 O. L. R. 212, 
read a heading into a section following Eastern Counties v. Marriage, 1860, 
9 H. L. C. 32, 31 L. J. Ex. 73; Hammersmith v. Brand, 1869, L. R. 4 
H. L. 171, 38 L. J. Q. B. 265 ; The Queen v. Local Government Board, 
1882, 10 Q. B. D. 309 at 321; Rayson v. South London Tramways Co., 
[1893] 2 Q. B. 304 ait 307, 62 L. J. Q. B. 593. 



6 INTERPRETATION OF CONSOLIDATION ACTS. 

Rules of Interpretation of Consolidation Acts. — If a Con- 
solidation Act re-enacts with a like context a word or phrase which has 
received judicial interpretation, that interpretation will generally but not 
necessarily be applicable to the same w'ord or phrase in the Consolidation 
Act. Maxwell on Statutes, 5th ed., p. 42, citing Mitchell v. Simpson. 
25 Q. B. D. 183, 59 L. J. Q. B. 355; Smith v. Baker, [1891] A. C. 349, 
60 L. J. Q. B. 691; Bank of England v. Vagliano, [1891] A. C. 144, 
60 L. J. Q. B. 145. 

The rule is different in the case of a codifying Act. In relation to the 
Sale of Goods Act, 1893, Cozens-Hardy, M.R., said: — 

" I rather deprecate the citation of the earlier decisions. The 
object and intent of the Statute was no doubt simply to codify the 
unwritten law applicable to the sale of goods ; but in so far as there 
is an express statutory enactment that alone must be looked at and 
must govern the right of the parties even though the section may 
to some extent have altered the prior Common Law." Bristol v. Fiat 
Motors, [1910], 2 K. B. 831, 79 L. J. K. B. 1109; Maxwell, 41." 

Oversight in Consolidation Act. — In Carrol v. Beard, 1895, 27 
O. R. 349, the Court had to consider a case whereby a section in a revised 
statute which was carried forward unchanged referred to a section which 
had been amended in such a manner that it appeared that there had been 
an oversight, resulting in a situation probably not intended by the Legis- 
lature. Boyd, C, said : — 

" The modern method is to leave the remedy in the hands of the 
Legislature and not to qualify the enactment according to the pre- 
sumed intention by judicial enactment." 

In Rothchild v. Commissioners L. R. 1894, 2 Q. B. at 145, Mathew, J., 
said ; — 

,, " Our limited function is not to say what the Legislature meant, 
but to ascertain what the Legislature has said that it meant." 

In O'Connor v. Hamilton, 1904, 8 O. L. R. at 410, Meredith, J., said :— 

" If the legislation be objectionable, and ought to be mitigated, 

substantial relief in a constitutional way is likely to be retarded 

rather than accelerated by concealing its deformities in ' astute ' or 
' adroit ' adjudication." ' 

Similar Imperial Acts. — In Trimble v. Hill, 1879, 5 App. Oas. 342, 
49 L. J. P. C. 49, the Judicial Committee laid down the rule that in 
colonies where an enactment had been passed which is similar to an 
English enactment, if the latter had been judicially interpreted in the 
Court of Appeal, the Colonial Courts should govern themselves by such 
interpretation when called upon to construe the colonial enactment ; and in 
City Bank v. Barrow, 1880, 5 App. Cases 664 at 679, the House of Lords 
laid down the same rule. 

See Pettit v. C. N. R., 1913, 23 M. R. 223, where Howell, C.J.M., 
speaking of R. S. M. 1902, c. 31, said : — " Our province has practically 
CDpied this Act, and we therefore take it subject to the judicial decisions 
upon it given in England." 

In Jacobs v. Beaver, 1908, 17 O. L. R. at 496, Moss, C.J.O., said:— 
" Speaking for myself, I think that a decision of the highest Court of this 
province, while it remains unreversed by a tribunal having appellate jur- 
isdiction over it, ought not to be set aside or ignored, simply for the reason 
that other Courts, not possessing appellate jurisdiction over it, and them- 
selves subject to reversal by higher Courts, have subsequently expressed 
views that may appear not to be in harmony with the decision, and I do 
not think that the suggestion of the Judicial Committee In Trimble v. Hill, 
affords warrant for any such practice." In Pacific Lumber Agency v. 
Imp. Timber Co., 1914, 7 W. W. R. 260, Clement, J., considered it 
a debatable question how far the rule in Trimble v. Hill should apply 
to our Supreme Court. 

See also Canada Furniture Co. v. Stephenson, 1910, 19 M. R. 631; 
Cambridge v. Sutherland, 1914, 6 W. W. R. 1219; Hollender v. Foulkes, 



INTERPRETATION CIvAUSES " SHALL " AND " MAY." 7 

1895, 26 O. R. 61 ; Rutherford v. Murray, 1911, 19 O. W. R. 975 ; 3 O. W. N. 
29, and Paradis v. The Queen, 1887, 1 Ex. C. R. 191; Wood v. Guillett, 
1895, 10 M. R. 570, and Anglin, J., in Stuart v. Bank of Montreal, 1909, 
41 S. C. R. at 548. 

" Shall " and ' May."— The Interpretation Act, R. S. O. 1914, 
u. 1, s. 29, provides : — 

The word " shall " shall be construed as imperative, and the 
word " may " shall be permissive. In Julius y. Oxford, 1880. 5 App. 
Cas. 214, 49 L. J. Q. B. 577, Lord Cairns discussed the phrase " it shall 
be lawful," as follows : — 

" The question has been argued and has been spoken of by some 
of the learned Judges in the Courts below as if the words ' it shall 
be lawful ' might have a . different meaning and might be differently 
interpreted in different statutes or in different parts of the same 
statute. I cannot think that this is correct. The words ' it shall 
be lawful ' are not equivocal. They are plain and unambiguous. 
They confer a faculty or power. But there may be something in 
the nature of the thing empowered to be done, something in the 
object for which it is to be done, something in the condition under 
which ■ it is to be done, something in the title of the person for 
whose benefit the power is to be exercised, which may couple the 
power with a duty, and make it the duty of the person in whom the 
power is reposed to exercise that power when called upon to do so. 
Whether the power is one coupled with a duty such as I have 
described is a question which, according to our system of law, speak- 
ing generally, it falls to the King's Bench to decide on an application 
for mandamus." 

Many of the most important questions arising under the Municipal 
Act arise in connection with duties imposed by such expressions as " shall 
be exercised by by-law," " shall igive notice," etc. In every case there arises 
the fundamental question whether an imperative duty is imposed, the neglect 
of which is fatal, or a direction as to procedure is given, the neglect of 
which results in a mere irregularity. The use Of " may " presents a similar 
alternative. Is it optional to do the act specified or is the option as to the 
mode of doing the act? Where a power is conferred, coupled with a speci- 
fication of the mode in which the power is to be exercised, there may be an 
implied exclusion of power to act except by the mode specified : Liverpool 
v. Liverpool, 1902, 35 N. S. R. 233 ; 33 S. 0. R. 180 at 192. 

Attitude of Courts with Respect to Interpretation Clauses. — 

Interpretation clauses are often inserted ew abundanti cauiela and are not 
necessarily to be construed as positive enactments. 

An interpretation clause merely defines for the purpose of the Act and 
not for other purposes and even for the purpose of the Act, the interpreta- 
tion clause does not more than say that where you find in the Act the 
words in question they shall, unless there be something: repugnant in the 
context or in the sense, have the special meaning prescribed : Lord Selborne, 
in the House of Lords, in Meux v. Jacob, 1875, L. R. 7 H. L. 481, 
44 L. J. Ch. 481 at 486. 

An interpretation clause in providing that a given term shall include 
certain things does not give an exclusive or complete definition of the 
term, and does not prevent the term being applied in its natural and 
obvious sense : Lord Coleridge, in the House of Lords, in R. v. Hermann, 
1879, 48 L. J. jM. C. 106, and London v. Jackson, 1881, 7 Q. B. D. 502, 
50 L. J. M. C. 134. 

As a rule an interpretation clause should be used for interpreting 
words which are ambiguous or equivocal only, and not so as to disturb 
the meaning of such as are plain: London v. Jackson, above. 

In Ely V. Bliss, 1852, 2 DeG. M. & G. 459, Lord St. Leonards, criti- 
cizing interpretation clauses generally, said : " They attempt to put a 
general construction on words which, in the different senses in which they 
are introduced in the various clauses of an Act, do not admit of such." 

The interpretation section of the Municipal Act extends to all Acts 
relating to municipal matters. The Interpretation Act, R. S. O. 1914. 
c. 1, s. 31. 



8 CERTAIN WORDS DEFINED. 

2. In this Act, 

(a) "Arbitration" shall mean an arbitration 
under the provisions of this Act. 

An arbitration under the Municipal Act is subject to the Municipal ' 
Arbitration Act : see s. 332 and generally Part XVI. Outside of Part XVI. 
arbitrations are directed in the following cases : — 

Sec. 36 (e) — On separation of senior and junior townships'; 

Sec. 38 (8) — On erection of village or annexation of territory ; 

Sec. 325 — Where lands are expropriated ; 

Sees. 383-4-5 — As to site and use of court house or gaol; 

Sec. 455 — As to maintenance of boundary lines ; 

Sec. 465 (2) — As to apportionment of damages for joint liability to 
repair highways ; 

Sees. 466-7 — As to joint jurisdiction over highways and bridges ; 

Sec. 473 — As to sufficiency of new road where only old highway is 
stopped up. 

2. — (h) "Bridge" shall mean a public bridge, and 
shall include a bridge forming part of a highway or on, 
over or across which a highway passes. 

Part XXI. deals with highways and bridges. 

County Bridge is defined in s. 429. Outside of Part XXI. the term 
will be found in : 

Sec. 289 (2e), authorizing debts not payable out of current year's 
estimates to construct certain bridges without reference to ratepayers; 

See. 398 giving power to regulate driving on bridges, ss. (8) and 
(9) ; to construct works to prevent damage 'to bridges by flooding, ss. 
(16) ; and to prohibit vehicular traffic on sidewalks or bridges, ss. (37). 

■What is a Bridge? — This is a most important question for the 
purposes of determining liability to erect, maintain and to pay damages 
resulting from failure to maintain. A bridge is to be distinguished from 
a mere culvert on the one hand and from an embankment on the other. 
When an embankment on both sides leads up to a bridge across water, it 
is an important question when the approaches of the bridge begin. A. 
structure over a dry ravine or over a highway is a bridge, within the 
meaning of the Act. For discussion see Part XXI. 

2.— (c) "City," "town," "village," "township," 
and "county" shall respectively mean city, town, village, 
township or county, the inhabitants of which are a body 
corporate within the meaning and for the purposes of this 

Act. 



CERTAIN WORDS DEFINED. 9 

2. — {d) "Electors," when applied to a municipal elec- 
tion, shall mean the persons entitled to vote at a muni- 
cipal election, when applied to voting on money by-law 
shall mean the persons entitled to vote on the by-law and 
when applied to voting on any other by-law or on a reso- 
lution or question unless otherwise provided by the Act, 
by-law, or other authority under which the vote is taken, 
shall mean municipal electors, 

A Municipal Election means the election of any member of a 
council by the procedure prescribed in Part III. The persons entitled to 
vote are those whose names are entered on the proper voters' list, s. 57, 
who are not subject to any of the disqualifications enumerated in the Act. 
Disqualifications are enumerated in ss. 57, 58, 59, 60, 61, 187, 188 and 189. 

Section 260 infra, defines " electors " again for the purposes of voting 
on by-laws. 

Voting on By-laws takes place under the provisions of Part X., 
and in. many respects differs from a municipal election. Electors entitled 
to vote on a money by-law are those entitled to vote at a municipal 
election, with the exception of farmers' sons, income voters and certain 
tenants, s. 265, and a list of such persons is to be prepared. Sections 266, 
267 and 268. 

2. — (e) "Highway" shall mean a common and public 
highway, and shall include a street and a bridge forming 
part of a highway, or on, over or across which a highway 
passes. 

A Common and Public Higb^ray is defined in Part XXI., s. 432. 

A public square may be a highway and part of a highway may be 
withdrawn from highway purposes by being set apart as a boulevard. 
Highway, at common law, includes street and bridge as well as lane and 
footpath or carriageway. The name is not material so long as all the 
public have the right to pass and repass and to stop as incident to the right 
of passage though the right may be limited to foot passengers or to 
vehicles: infra, P. 

Sball include infra, P. 

2. — (/) "Land" shall include lands, tenements, and 
hereditaments, and any estate or interest therein, and 
any right or easement affecting them, and land covered 
with water. 

Estate may be freehold or leasehold, legal or equitable or partly legal 
and partly equitable. For definitions see s'. 52 (le) and (If). 

Interest is to be distinguished from a mere license to use lands. It 
is synonymous with estate. The Court of Appeal in Warr v. London 
County Council, [1904] 1 K. B. 713, 73 L. J. K. B. 362 held that licensees 
under an agreement entitling them to sell refreshments in a theatre had 
" no estate or interest in land." 

Any Rigbts or Easements Tberein. — ^Rights in gross, profits a 
prendre, easements of air, easements of light and rights of way are estates 
in land. 



10 WORDS DEFINED — " LAND." 

What is included in the term " land " becomes of importance in settling 
the right to compensation where land is expropriated or is injuriously 
aflfected by the exercise of any of the powers of the corporation. For fur- 
ther discussion, see Part XV. See Belleville Bridge Co. v. Ameliasburg, 
1907, 10 O. W. K. 988 ; 15 O. h. R. 174 (bridge over navigable water) liable 
to assessment, and Essery v. Bell, 1909, 13 O. W. R. 395 (easement liable 
to assessment). 

Land Covered With Water. — "Whether a lake or river be vested 
in the Crown as represented by the Dominion, or as represented by the 
province in which it is situate, it is equally Crown property, and the rights 
of the public in respect of it, except so far as they are modiiied by legis- 
lation, are precisely the same. . . . There is no presumption that be- 
cause legislative jurisdiction was vested in the Dominion Parliament pro- 
prietary rights were transferred to it. . . . Whatever proprietary rig'hts 
were at the time of the passing of that Act (the B. N. A. Act of 1867), 
possessed by the provinces remain vested in them, except such as are by 
any of its express enactments transferred to the Dominion,'' per Lord 
Herschell, giving the judgment of the Judicial Committee : In re Provincial 
Fisheries, 1896, 26 S. C. R. 444, s.c. Att.-Gen. Canada v. Atts.-Gen. 
Ontario, Quebec and Nava Scotia, 1898, A. C. 700 ; 67 L. J. P. C. 90, where 
it was held that " public harbours," whether public work has been eisie- 
cuted on them or not, are vested in the Dominion, while lands not public 
harbours covered by, the water of rivers, whether navigable or not, and lakes, 
were not by the B. N. A. Act, 1867, vested in the Dominion : see, also, Kee- 
watin V. Kenora, 1908, 13 O. L. R. 237 ; 16 O. L. R. 184 C. A., where it 
was held that not a grant of lands bordering on a non-tidal river, whether 
navigable or not, carries the bed of the river ad medium filum aquae 
unless the grant is expressly otherwise, and in the case of a tidal river the, 
presumption is that the bed is not granted. In the case of lands borderin? on 
non-^tidal lakes, such as the great lakes, while the ad medium filum rule is 
subject to qualification. " If the whole or a great part of this province 
(Ontario), had been granted to a great company, like the Hudson's Bay- 
Companjy . . and had-been described as bounded on the south and south- 
west by the great lakes and rivers, would any one doubt that the grant would 
carry the title ad medium filum, subject to the highway over them. . . . 
But it is said, is it not absurd that, if the Crown grant a farm lot of a few 
acres, or a town lot of but a few feet frontage-upon one of the great lakes, 
it should carry with 'it a strip of land perhaps sixty miles deep? Of 
course, it is absurd, and so manifestly so as to unmistakeably indicate 
such a contrary intention as to take the case out of the rule." Meredith, 
J.A., in Keewatin v. Kenora, supra. On this subject see also Merritt v. 
Toronto. 1912, 23 O. L. R. 365 ; 27 O. -L. R. 1 ; 48 S. C. R. 1. 

The Assessment Act, R. g. O. 1914, u. 195, s. 2 (h), is as follows: 
" Land," " real property " and " real estate " shall include — 

1. Land covered with water ; 

2. All trees and underwood growing upon land; 

3. All mines, minerals, gas, oil, salt, quarries and fossils in and 

under land ; 

4. All buildings, or any part of any building, and all structures, 

machinery and fixtures erected or placed upon, in, over, 
under, or affixed to, land ; 

5. All structures and fixtures erected ' or placed upon, in, over. 

under, or affixed to any highway, lane, or other public com- 
munication _ or water ; but not the rolling stock of -any rail- 
way, electric railway, tramway or street railway. 

The Registry Act, R. g. O. 1914, c. 124, s. 2 (e), is as follows:— 
" Land " shall include lands, tenements, hereditaments and appur- 
tenances and any estate or interest therein. 

Land.— "Land in its restrained sense means soil, but in its legal 
acceptation it is a generic term comprehending every species of ground 
on earth as meadows, pastures, woods, moors, waters, marshes, furze 
and heath; it includes also houses, mills,- castles and other buildings; 



WORDS DEFINED. 11 

for with the conveyance of the land the structures upon it pass also. 
And besides an indefinite extent upwards it extends downwards to the 
globe's centre," Wharton. See, also, Williams v. Cornwall, 1909, 32 
O. R. 255, where the right to maintain a house in a position where it 
encroached on a street was held to be an " interest in lands " and to 
come within the meaning of " lands " in sec. 32. 

Tenements and Hereditaments. — " Lands, houses and im- 
moveable property — things capable of being held in the way abpve 
described (by feudal tenure) — were called tenements or things held. 
They were also denominated hereditaments because on the death of 
the owner they devolved by law to his heir. So that the phrase 
' lands, tenements and hereditaments ' was used by. the lawyers of 
those times to express all sorts of property of the first or immoveable 
class ; and the expression is in use to the present day." Williams 
R. P. 6. 

2. — (g) "Local municipality" shall mean a city, a 
town, a village and a township. 

County is not included. It has jurisdiction over the local munici- 
palities which are geographically situated within it unless' they are " sepa- 
rated " for municipal purposes. 

2. — {h) "Member" or "members," referring to a 
member or members of a council shall include the head of 
the council, and a member or members of a Board of 
Control. 

By virtue of ss. 46, 47, 48 and 50, 1;he heads of councils, deputy 
reeves and members of boards of control are members of the councils of 
the respective municipalities by which they are elected. This sub-section 
would appear to be unnecessary, or if necessary, is incomplete in not 
referring to deputy reeves and inaccurate in including a warden who is 
elected from among the members of a county council. A section similar 
to ss. 46, 47 and 50 was held, by Richards, J., in R. ex rel. Pollard v. 
Prosser, 1859, 2 P. R. 330, to shew plainly that a mayor was a member 
of a council. 

2. — (i) "Money by-law" shall mean a by-law for con- 
tracting a debt or obligation or for borrowing money. 

Part XII. deals with money by-laws. Money by-laws must contain 
certain recitals, s. 288, and in certain cases must be submitted to a vote 
of the electors, s. 289, and must be registered, s. 296. 

2. — (j) "Municipal Board" shall mean Ontario Rail- 
way and Municipal Board. 

The Ontario Railway and Municipal Board, R. S. O. 1914, c. 186, 
s. 21, confers on the Municipal Board general power ■ to make orders 
binding upon municipal corporations which are constructinn, maintaining or 
■operating any public utility in violation of any general or special act, 
regulation or order. 

Po-nrers of the Board under The Municipal Act. — The forma- 
tion of new municipal corporations and the alterations of boundaries of 
municipalities. Part I., though a new division into wards is left to the 
Lieutenant-Governor in Council, s. 44 ; 



12 WORDS DEFINED. 

The extending of time for issuing debentures beyond the time limited 
by the Act, s. 288 (9) ; 

Authorizing an increase of the rate of interest on debentures, s. 291 ; 

Cancelling unissued debentures, s. 292; 

Certifying debentures, s. 295 ; 

Authorizing diversion of sinking fund to redemption of debentures, 
s. 304 ; 

Supervision over bonuses in aid of railvpays, s. 397 ; 

Authorizing borrowing in certain cases without reference to electors, 
s. 400 (3) ; 

Approving abandonment of roads by counties, s. 448 ; 

Settling disputes over county boundary lines, s. 469. 

Prescribing forms of by-laws, notices, etc., s. 536. 

2. — {k) "Municipal electors" shall mean the persons 
entitled to vote at a municipal election. 

2. — (l) "Municipality" shall mean a locality, the 
inhabitants of which are incorporated. 3-4 Geo. V. c. 43, 
s. 2, (a-l). 

Notwithstanding this section, the term " municipality," " county," 
" city," etc., are frequently used in the Act as equivalent to " the cor- 
poration of the local municipality," or " the corporation of the county." 

2. — (m) "Population" shall mean population as de- 
termined by the last preceding census taken under the 
authority of the Parliament of Canada, or under a by-law 
of the council, or by the last preceding municipal enumer- 
ation by the assessor, whichever shall be the latest, or by 
such means as the Municipal Board may direct. 3-4 Geo. 
V. c. 43, s. 2 (m) ; 5 Geo. V. c. 34, s. 1. 

The Census is Conclusive as to Population. — Even though the 
population as shewn by a census or enumeration can be shewn to be in- 
correct, nevertheless the census or enumeration governs and must be taken 
to be correct for the purposes of the Act, and is not open to question in 
any proceeding to set aside any act based on population as shewn by 
the method designated by clause (m). R. ex rel. Sullivan v. Church, 1914, 
26 O. W. R. 375, 6 O. W. N. 116, 365. 

Census under By-law. — This is authorized in the case of any 
municipality, s. 398 (4). 

Municipal Enumeration. — This must be made by the assessor under 
the provisions of the Assessment Act, R. S. O. 1914, c. 195, s. 22. 

A Special Census of a District may be directed under s. 13 (4;. 

For the purpose of changing the method of electing aldermen or coun- 
cill'ors in cities and towns, under the provisions of ss. 46, 47 and 48, the 
last Dominion census governs, s. 49. 

2. — (n) "Prescribed" shall mean prescribed by or 
under the authority of this Act. 

Even without this limitation the term, if used in a statute, would mean 
prescribed by that statute and not prescribed by general law. 



WOEDS DEFINED. 13 

2. — (o) "Published" shall mean published in a news- 
paper in the municipality to which what is published re- 
lates or which it affects, or if there is no newspaper pub- 
lished in the municipality, in a newspaper published in 
an adjacent or neighbouring municipality; and "publica- 
tion" shall have a corresponding meaning. 

The directions in the Act as to publication of notices and of copies of 
by-laws are in many cases imperative, and non-compliance therewith may 
invalidate the whole proceedings. In other cases, omission to publish as 
directed may be an irregularity merely. Of the former may be mentioned 
the notices required under ss. 263 and 475, N.B. 

2. — {p) "Separated town" shall mean town separ- 
ated for municipal purposes from the county in which it 
is situate. 

2.- — (q) "Supreme Court" shall mean Supreme Court 
of Ontario. 

2. — (r) "Township" shall include a union of town- 
ships, and a municipality composed of two or more town- 
ships. 

Union of townships, ss. 25-30. 

Municipality composed of two or more townships, s. 18. 

2. — (s) "Two-thirds vote" shall mean the affirmative 
vote of two-thirds of the members of a council present 
at a meeting thereof. 

A Two-thirds vote is required : — 

(1) to pass a resolution as to a new division into wards: s. 44; 

(2) to override the Board of Control: s. 213 (15) ; 

(3) to authorize purchase of armoury : s. 289 (2g) ; 

(4) to establish fuel yards in cities and towns: s. 399 (39a) ; 

(5) to establish residential streets in cities and towns: s. 406 
. (10) ; . 

(o) to purchase fire apparatus for villages: s. 407 (1) ; 

(7) to regulate the location of stables in cities: s. 409 (2a). 

An affirmative three-fourths vote is required in the case of certain 
bonus by-laws : s. 278. 

2. — (t) "Unorganized territory" shall mean that 
part of Ontario without county organization. 

See the Territorial Division Act, R. S. O. 1914, c. 3. 

2. — (u) "Urban municipality" shall mean and in- 
clude a city, a town, and a village. 3 Edw. VII. c. 19, ss 2 
and 4. 3 & 4 Geo. V. c. 43, s. 2 (n-u). 



14 TAKING EVIDENCE KEGISTEATION. 

Application of s. 2. — Section 2 applies to all acts relating to 
municipal matters by s. 31 of R. S. O. 1914, c. 1 The Interpretation Act. 

3. — (1) Where under the provisions of this Act evi- 
dence is taken orally before a Special Examiner or a 
Judge he may direct that the same be taken in shorthand 
by a stenographic reporter. 

3. — (2) The fees of the stenographic reporter, includ- 
ing those for the transcribing of his notes, shall be paid by 
the party on whose behalf the evidence is taken, and the 
same shall form part of the costs of the proceedings ia 
which the evidence is taken. 3 & 4 Geo. V. c. 43, s. 3. 

Section 173 (2) provides that evidence of earrupt practices in pro- 
ceedings under Part IV. shall be taken before a Judge or before a special 
examiner. In R. v. Riel, 1885, 55 L. J. P. C. 28, where a statute directed 
a magistrate to take or cause to be taken in writing full notes of the 
evidence and other proceedings, the Judicial Committee held that the pro- 
vision was complied with where the notes were taken in shorthand. Possibly 
under s. 173 (2) it might be argued that the Judge or special .examiner 
should take the evidence down himself. 

The fees payable to Court reporters are fixed by the Judges of the 
Supreme Court. The Judicature- Act, R. S. O. 1914, c. 56, s. 109 (Id). 

4. Where registration in a registry office is prescribed 
or provided for by this Act it shall mean where The Land 
Titles Act is applicable, registration in the office of the 
Master or Local Master of Titles of the locality in which 
the land is situate. 3 & 4 Geo. V. c. 43, s. 4. 

The following must be registered : — 

Agreements as to maintenance of boundary lines: s. 444; 
Orders as to county bridges : s. 449 ; 
Money by-laws : s. 296. 

5. A person in the actual occupation of land under an 
agreement with the owner for the purchase of it shall be 
deemed to be the owner, and the unpaid purchase money 
shall be deemed to be an encumbrance on the land. 3 & 4 
Geo. V. c. 43, s. 5. 

Actual Occupation. — For discussion, see s. 51 (le) . " Actual occupa- 
tion ' means possession: residence not necessary: control is the point: R. ex 
rel. Sharpe v. Beck, 1909, 13 O. W. R. 457. . 

■Purchaser not Freeholder.— In re Flatt and Prescott, 1890, 18 
A. R. 1, the C. A. held that a purchaser under an agreement for purchase 
was not a freeholder within the meaning of s. 13 infra. Hagarty, C.J.O., 
said : — 

"A man may become, for certain purposes as between himself and 
his co-contractor, the owner of a property agreed to be conveyed to 



SAVING CLAUSB FOR SPECIAI^ ACTS. 15 

him on certain conditions, but the rule does not go further, and as 
regards the rest of the world he is not a freeholder either legal or 
equitable." 

For the purposes of qualification either as elector or candidate for 
election, the assessment roll governs. This section is therefore a direction 
to assessors to enter purchasers in actual occupation in the roll as owners. 
See Re Dale and Blanchard, 1910, 21 O. L. R. 497 ; 23 O. L. R. 69. 

6. Where power to acquire land is conferred upon a 
municipal corporation by this or any other Act, unless 
otherwise expressly provided, it shall include the power 
to acquire by purchase or otherwise and to enter on and 
expropriate. 3 & 4 Geo. V. c. 43, s. 6. 

In re Boyle and Toronto, 1913, .5 O. W. N. 9, 25 O. W. R. 67, Middle- 
ton, J., said :— 

"By s. 576 (3) the council of any city^or town may pass a 
by-law ' for acquiring any estate in landed property within or without 
the city or town, for an industrial farm.' At the time of the passing 
of this statute (1903), the word 'acquire' had not the wide signifi- 
cance now given to it by the Municipal Act of 1913, s. 6, which pro- 
vides that the power to acquire shall include the power to acquire by 
purchase or expropriation ... ; it only enabled the municipality 
to acquire by purchase." 
See ss. 321 and 331. 

7. Except where otherwise expressly provided, this 
Act shall not affect the provisions of any special Act re- 
lating to a particular municipality. 3 Edw. VII. c. 19, s. 
1, part. 3 & 4 Geo. V. c. 43, s. 7. 

This section is merely a statement of the rule of law which would 
be applied by the Courts. The rule was stated at a very early date in 
Stradling v. Morgan, 1571, Plowd. 204, as follows: — 

" From which cases it appears that the sages of the law here- 
tofore have construed statutes quite contrary to the letter in some 
appearance ; and those statutes which comprehend all things in the 
letter they have expounded to extend but to some things, and those 
which generally prohibit all people from doing such an act they have 
interpreted to permit some people to do it, and those which include 
every person in the letter they have adjudged to reach to some persons 
ojily ; which expositions have always been founded upon the intent 
of the Legislature, which they have collected sometimes by considering 
the cause and necessity of making the Act, sometimes by comparing 
one part of the Act with another, and sometimes by foreign circum- 
stances ; so that they have ever been guided by the infent of the 
Legislature, which they have always taken according to the necessity 
of the matter, and according to that which is consonant to reason and 
good discretion ;" 

and has since been uniformly applied and was cited by Lord Hatherley 
in the Hous'e of Lords with approval in Garnett v. Bradley, 1878, 3 App. 
Cas. 944 ; 48' L. J. Ex. 186. See also Maxwell, 5th Edn., p. 285. 

8. The inhabitants of every county; city, town, village, 
and township shall be a body corporate for the purposes 



16 COBPORATION HOW COMPOSED. 

of this Act. 3 Edw. VII. c. 19, s. 5, amended; 3 & 4 Geo. 
V. c. 43, s. 8. 

Shall be a body corporate. — The Interpretation Act, R. S. O. 1914, 
c. 1, s. 27, provides : — 

" In every Act, unless the contrary intention appears, words 
making any association or number of persons a corporation or body 
politic and corporate shall 

(o) vest in such corporation power to sue and be sued, to contract 
and be contracted with by their corporate name, to h£^ve a 
common seal, to alter or change the same at their pleasure, 
to have perpetual succession, to acquire and hold personal 
property or moveables for the purpose for which the corpor- 
ation is constituted, and to alienate the same at pleasure; 

(6) Vest in a majority- of the members of the corporation the 
power to bind the others by their acts; and 

(c) Exempt individual members of the corporation from personal 
liability for its debts, obligations or acts if they do not con- 
travene the provisions of the Act incorporating them." 

Sections 8, 9 and 10 with the operation of s. 27 of the Interpretation 
Act confer upon all municipal corporations the essential incidents of cor- 
porate capacity which may be enumerated as follows : — 

1. A corporate name as the principal means by which identity not- 
withstanding constantly changing members, can be manifested. 

2. A common seal by which the assent of the corporate body can 
be manifested, notwithstanding internal differences of opinion. 

3. Perpetual succession. 

4. Power to acquire and hold property for authorized purposes 
and to alienate the same. As to lands the general powers given by 
s. 27 are modified and limited. Sees. 6, 322 (1), 398 (32) and (33). 

5. Power to sue and be sued. 

6. Power to contract and be contracted with. 

7. Power of majority to bind others. 

8. Exemption of agents from liability when acting in conformity 
with the fundamental law of the corporation. 

9. A governing body, the council which is not the corporation, 
though it exercises the powers of the corporation. 

The fundamental and essential character of the corporate powers 
enumerated above will more clearly appear from a perusal of the judgm«it 
-of the Judicial Committee in John Deere v. Wharton, 1915, A. C. 330, 
84 L. J. P. 0. 64, where an interference by a province wi^h the corporate 
status of a Dominion company as conferred on it in part by s. 30 of the 
Interpretation Act, R. S. C. 1906, c. 1, in effect the same as s. 27 supra, 
was checked. 

City Engineer's Certificate as to Performance of Control. — 

A city engineer acting under contract by which all works are to" be done to 
his satisfaction must act impartially, and if his action is influenced by the 
corporation which employs him his decision will not be final and binding: 
Hickman v. Roberts, 1913, A. C. 229; Bristol Corporation v. Aird, 1913, 
A. C. 241 ; Hill v. South Staffordshire, 1864, 12 L. T. R. 63, 65. The em- 
ployer, however, has the right to direct the attention of the engineer before 
he certifies to alleged defects of performance and to ask for care and dili- 
gence in the discharge of his duty, but he has no right to dictate or impose 
his own opinion, and any attempt by the employer to do so, especially if 
yielded to by the servant, is in the nature of a fraud, or is at all events 
evidence of fraud which will, if established, relieve the plaintiff from the 
necessity of obtaining the certificate: Wallace v. Temiskaming, 1906, 37 



COUNCII, TO EXERCISE POWEES. 17 

S. C. R. 696 ; Price v. Forbes, 1915, 36 0. L. R. 136, 23 D. L. R. 532 ; 
Brennan v. Hamilton, 1917, 39 O. L. R. 367. 

Can a Municipal Corporation Accept a Gift for Charitable 
Purposes? — A corporation created hs statute has only the capacities con- 
ferred by its statute, and it has accordingly been held that railway com- 
panies cannot, without ex-press power, acquire property for their under- 
taking: 1891, 1 Q. B. 440; 60 L. J. Q. B. 438, C.A., and the same rale 
would apply to municipal corporations. A gift of lands to a municipal 
corporation, however, may be for public purposes within the scope of the 
objects for which the corporation was created, and if so, may be accepted, 
as for example, the gift of land for a public hall. In some American states 
it has been held that municipal corporations can accept the gift of a church 
or chapel ; see Maysville v. Wood, 1897, 102 Ky. 263, and Phillipps v. Har- 
row, 93 Iowa 92 ; 61 N. W. 343. 

9. The name of the body corporate shall be "The Cor- 
poration of the County [United Counties, City, Town, 
Village, Township (as the case may be)], of 

(naming the municipality)." 3 Edw. VII., c. 19, s. 7, 
amended. 3 & 4 Geo. V. c. 43, s. 9. 

10. The powers of a municipal corporation shall be 
exercised by its council. 3 Edw. VII. c. 19, s. 10, amended. 
3 & 4 Geo. V. c. 43, s. 10. 

Delegation by Board or Council of Poorer to Discharge Ser- 
vants.— In Mackell v. Ottawa Separate School Trustees, 1914, 32 O. L. R. 
245, the board delegated to the chairman power to discharge, select and 
engage teachers, but the resolutions purporting to do this were held to be 
ultra vires. 

Council cannot delegate to clerk the duty of ascertaining if the require- 
ments of The Shops Regulation Act as to petitions have been complied with : 
Re Halladay and Ottawa, 1907, 15 O. L. R. 65. 



18 HKHCTION OF VILLAGE BY COUNTY COUNCIL. 



PART I. 

FOEMATION OP New CoEPORATIONS and AliTEEATIONS OP 
BOXJNDAEIES OP MUNICIPALITIES. 

I. Powers of County Councils as to erection of villages 

or towns. 

11. In tMs Part, "district" shall mean part of a town- 
ship or parts of two or more townships which it is pro- 
posed to erect into a village or town, or part of a town- 
ship which it is proposed to add to another municipality, 
or the part so erected or added, as the case may be. New 
1913. 3 & 4 Geo. V. c. 43, s. 11 ; 5 Geo. V. c. 34, s. 2. 

12. Under and subject to the provisions and conditions 
hereinafter mentioned, a district may be erected into a 
village by the council of the county in which it is situate, 
or if the district comprises parts of two or more counties 
by the council of the county in which the larger or largest 
part of the district is situate. 3 Edw. VII., c. 19, s. 11 
(1), part amended. 3 & 4 Geo. V. c. 43, s. 12. 

13. — (1) Where a petition, signed, if the district or 
part of it lies within one mile of the limits of a city hav- 
ing a population of not less than- 100,000, by at least two- 
thirds and in other cases by at least one-half of the free- 
holders and resident tenants of the district whose names 
are entered on the last revised assessment roll of the 
municipality in which the district is situate, and in the 
case of tenants who have been resident in the district for 
at least four months next preceding the presentation of 
the petition, all of the petitioners being British subjects 
of the full age of 21 years, and at least one-half of them 
freeholders, praying for the erection of the district into a 
village, is presented to the council, the council, if the dis- 
trict has a population exceeding 750, shall, within three 



EKEOTION OF VILLAGE BY COUNTY COUNCIL. 19 

montlis after the presentation of the petition, pass a 
by-law erecting tlie district into a village, to take effect 
on and from a day to be named in the by-law, declaring 
the name which it shall bear and its boundaries. 3 & 4 
Geo. V. c. 43, s. 13 (1) ; 5 Geo. V. c. 34, s. 3. 

(2) Opposite the name of every petitioner there shall 
be shown, by reference to the number of the lot, the land 
owned or occupied by him, and where it is or forms part 
of a lot laid down on a registered plan, the reference shall 
be to the number of the lot according to the 'plan, and the 
petition shall also shew whether the petitioner is a free- 
holder or resident tenant. 3 Edw. VII. c. 19, s. 11 (1), 
part; and (2-3), redrafted. 

(3) A petition shall be deemed to be presented when 
it is lodged with the clerk, and .the sufficiency of the peti- 
tion shall be determined by him and his certificate shall 
be conclusive in reference thereto. New 1913. 

(4) The number of the inhabitants of the district shall 
be ascertained by a special census taken by direction of 
the council. 3 Edw. VII. c. 19, s. 11 (1), part. 

(5) The by-law shall not be passed before the expira- 
tion of one month after the presentation of the petition, 
or unless within two months next preceding the meeting 
of the council at which it is to be considered notice has 
been given of the intention of the council to take it into 
consideration. 

(6) The notice shall be published at least once a week 
for two successive weeks, and shall contain a description 
of the district sufficiently full to indicate the land which 
it is intended to embrace in the proposed village. 3 Edw. 
VII. c. 19, s. 11 (4), redrafted. 

(7) The council may require that the expenses of tak- 
ing the census and of publishing the notice be paid by 
the petitioners, or that a sum sufficient to defray them be 
deposited with the clerk. New 1913. 



20 REGISTRATION OF BY-LAWS. 

(8) The clerk shall forthwith, after the passing of it, 
transmit a certified copy of the by-law to the Provincial 
Secretary, who shall cause notice of it to be published in 
the Ontario Gazette. New 1913. 

(9) After the expiration of three months from the 
publication of the notice of the by-law, and after the final 
disposition of any application to quash if made within 
that period, if the application is unsuccessful, the by-law 
shall not be liable to be quashed on any ground, and the 
village thereby erected shall be deemed to have been duly 
erected in accordance with the provisions of this Act. 
New 1913. 3 & 4 Geo.. V. c. 43, s. 13. 

By-laws Cxeating New Corporations or Alterinjg Boundaries 
o£ Corporations must be Registered. — As to registration of by-laws, 
etc., erecting a village, town or city, or enlarging, diminishing or altering 
the boundaries' of a municipality, see the Registry Act, R. S. O. 1914, c. 124, 
s. 70, which, as amended by 8 Geo. V. c. 27, s. 10, is as follows : — 

" (1) Every by-law passed since the 29tii day of March, 1873, 
or hereafter passed by a municipal council under the authority of 
which any street, road or his'hway is closed or under the authority of 
which any street, road or highway is opened upon any private pro- 
perty shall, before the same becomes effectual in law, be registered in 
the registry office of the registry division in which the land is situate ; 
and the same s\all be registered without further proof by depositing 
a copy certified under the hand of the clerk and the seal of the 
municipality. 

" (2) Every by-law passed before the 29th day of March, 1873, 
and every order and resolution of the Quarter or General Sessions of 
the Peace passed before that day under the authority of which any 
street, road, or highway, has been opened upon any private property 
may at the election of any person or municipality, interested and at 
the cost and charges of such person or municipality be registered by 
depositing a certified copy of the by-law under the hand of the clerk 
and the seal of the municipality, or a certified copy of the order or 
resolution of the Quarter or General Sessions under the hand and 
seal of the Clerk of the Peace. 

" (3) Every by-law, proclamation, Order-in-Council, Order of the 
Ontario Railway and Municipal Board and other instrument of a 
public or quasi public nature whereby a village, town or city becomes 
incorporated, or the boundaries of any municipality are enlarged, 
diminished or altered, shall be registered in the proper registry office 
bj the municipality passing or procuring the same, and a copy of a 
by-law, certified under the seal of the corporation and by the head 
and the clerk of the municipality, and a copy of the proclamation, 
Order-in-Couneil, Order of the Ontario Railway and IVIunicipal Board 
or other instrument certified by the Clerk of the Executive Council 
or the Secretary of the Board, as the case may be, shall be sufificient 
proof for the purpose of registration. 

" (4) A money by-law of a municipal corporation shall be authen- 
ticated for registration by the production of a duplicate original or a 
copy of the by-law certified under the seal of the corporation and the 
signature of the head thereof, or of the person presiding at the meet- 
ing at which the by-law has been passed and that of the clerk of the 
corporation. 

(5) The by-law or copy so certified shall be open to public in- 
spection and examination at all reasonable times and hours upon pay- 
ment of the proper fees. 



I/IMITATION OF AREA. 31 

14. — (1) Subject to sub-section 2, the area of a town 
or village hereafter erected shall not exceed five hundred 
acres for the first one thousand or less, with two hundred 
acres or fraction thereof added for each additional one 
thousand or fraction thereof in excess of one thousand of 
its population. 3 Edw. VII. e. 19, s. 12 (1). Amended. 
3 & 4 Geo. V. c. 43, s. 14 (1) ; 4 Geo V. c. 33, s. 1. 

(2) In unorganized territory, the area of a town shall 
not exceed 750 acres for the first 500 of its population, 
with 300 acres or fraction thereof added for each addi- 
tional 500 of its population or fraction thereof. 2 Edw. 
VII. c. 30, s. 1, part amended. 4 Geo. V. c. 33, s. 2. 

(3) An addition shall not be made to any town or 
village which will have the effect of increasing its area 
beyond the prescribed area. 

(4) Land occupied by highways, parks, and public 
squares, and land covered by water shall be excluded in 
determining the area. 3 Edw. VII. c. 19, s. 12 (3-4), part 
amended. 3 & 4 Geo. V. c. 43, s. 14 (1-4) ; 4 Geo. V. c. 33, 
s. 3. 

15. — (1) Where a village comprises parts of two or 
more counties, it shall be annexed to, and form part of, 
that one of them which shall be agreed on by the councils, 
or which, failing an agreement within six months after 
the presentation of the petition, the Lieutenant-Gover- 
nor in Council may by proclamation direct. 

(2) If an agreement is come to, the clerk of each of 
the councils shall forthwith notify the Provincial Secre- 
tary of it, and if an agreement is not come to within the 
period mentioned in s.-s. 1, shall forthwith, after the 
expiration of that period, notify the Provincial Secre- 
tary of the fact. 3 Edw. VII. c. 19, s. 14, amended. 

(3) Where the councils agree as to the "county to 
which the village shall bje annexed, the Provincial Secre- 
tary shall forthwith, after 'notice of the agreement, cause 
to be published in the Ontario Gazette n'otice of the 



22 SUFFICIENCY OF THE PETITION. 

county to which the village has been annexed. New. 
3 & 4 Geo. V. c. 43, s. 15 (1-3). 

16. A police village may be erected into a village in 
the manner and subject to the conditions mentioned in 
s. 13. 9 Edw. Vlt c. 73, s. 1, first part. 3 & 4 Geo. V. 
c. 43, s. 16. 

Preliminary. — The provisions of ss. 11 to 16 enable the inhabitants 
of a district which meets the requirements laid down in the Act, if a 
sufficient number of them desire it, to become incorporated into a. munici- 
pal corporation. The machinery provided to effect the incorporation is to 
be operated by a county council, but the council has no discretion to refuse 
to act if all the requirements of the Act are complied with. This pro- 
cedure is to be contrasted with that prescribed by ss. 17 to 23, 30 and 31, 
where 'the Railway and Municipal Board has jurisdiction to act, and by 
ss. 24 and 27, where a Judge of the District Court has the power, and 
from s, 26, where the Lieutenant-Governor in Council has jurisdiction. 

Freeholders. — In re Flatt and Prescott, 1890, 18 A. K. 1, the C. A. 
quashed a by-law incorporating a village because the petition was not 
signed by the necessary number of freeholders, holding that while the term 
" freeholder " in the section meant an equitable freeholder, persons who 
were in possession of lands under agreements to purchase were not free- 
holders within the meaning of the section. In that case the Court con- 
sidered the sufficiency of the petition. 

Sufficiency of the Petition. — The Council and the Court on a 
motion to quash must now, by reason of s. 13 (3), accept the clerk's 
certificate as to the sufficiency of the petition. While the certificate exists 
it must be acted upon. Re Williams and Brampton, 1908, 17 O. L. R. 408, 
was decided on a statute which contained no corresponding provision for 
determining the sufficiency of a petition and in that case the Court investi- 
gated the matter. If the clerk certifies that a petition is insufficient, there 
is nothing in the statute to prevent a new petition from being lodged with 
him as soon as its execution can be procured. The numerous questions 
as to the form and execution of the petitions which have been discussed 
upon applications to quash local \ option by-laws are merely of academic 
interest in connection with petitions under s. 13. 

In re Michie and Toronto, 1862, 11 C. P. 379, Draper, O.J., refused to 
entertain an objection put forward against a by-law on motion to quash 
that the necessary originating petition had not been- signed as required, 
saying : — ■ 

_" I think the fourth objection that the petition on -which the by- 
law is based, was not signed by three-fourths in number and one-half in 
value of the owners of the real property to be .benefited, cannot 
be entertained by us. The Municipal Institutions Act, s. 300, expressly 
provides that the number of the owners and the value of the real 
property is to be ascertained and ' finally determined ' in the man- 
ner and by the means provided by by-law. There is a by-law for that 
purpose, under which the clerk of the city council has acted. It is 
not objected that he acted corruptly and fraudulently, and though, as 
I gather from the unanswered statements, in the relator's affidavits, 
the city clerk has fallen into error, an error easily accounted for, as 
his conclusions were drawn from the assessment roll only, yet I 
think we -cannot on that account annul the whole proceeding. 

" The 191st section of the Act plainly contemplates that this 
objection should be heard and disposed of by the council of the city 
before the by-law is passed. 

" I am not to be understood as determining that he should have 
confined bis enquiry to the assessment roll, when he was required to 
ascertain and finally determine the matter of number and value, but I 



COUNCIL TO ACT ON PETITION. 23 

think that having acted as we must assume, bona fide, the legislature 
intended his determination to be final, as the foundation for the by-law 
authorizing the improvement, and imposing the special rate." 

Witbdra-wals by Petitioners. — In eases where a petition amounts 
to a quasi contract, names of petitioners cannot be withdrawn. Gibson v. 
N. Easthope, 1894, 21 A. R. 504, affirmed 24 S. C. R. 707, where a 
petitioner for drainage works vainly attempted to withdraw. In Halla- 
day V. Ottawa, 1907, 14 O. L. R. 458, 15 O. L. R. 65, withdrawals from a 
petition for an early closing by-law, were allowed, and probably withdrawals 
would be allowed from a petition under s. 13 before it was acted on. See 
also In re Canada Temperance Act and the County of Kent, 1884, Oassels' 
Digest, p. 106, The cases are reviewed in Re Keeling and Brant, 1911, 25 
O. L. R. 181. 

See Re Misener v. Wainfleet, 1881, 46 U. C. R. 457 ; In re Robertson 
and N. Easthope, 1888, 15 O, R. 423, reversed, 1889, 16 A. R. 214; Wil- 
liams V. Citizens, 1883, 40 Ark. 290; State v. Gerhardt, 1896, 145 Ind. 439. 

Compelling Council to Act on. Petition. — If a council refuses 
to act upon a sufficient petition when the district has the necessary 
population, it can be compelled by mandamus. Re Williams and Bramp- 
ton, 1908, 17 O. Li. R. at 408 ; R. ex rel. Sovereign v. Edwards, 1912, 22 
M. R. 790 ; Oarr v. North. Bay, 1913, 28 O. L. R. 623. 

Restraining Council from Acting irithout Jurisdiction. — If 

the council assumes, to act when the conditions precedent to action are not 
fulfilled, it can be restrained by injunction. Brock v. Robson, 1914; 25 
M. R. 64, but see Stephenson v. Cowan, 1914, 25 M. R. 67. 

Quashing By-laws Erecting Villages. — In Almas v. Haldimand 
(unreported, see 10 O. R. p. 45), Rose, J., quashed a by-law incorporating 
a village because the petition for incorporation was not sufficiently signed, 
and in Re Fenton v. Simcoe, 1885, 10 O. R. 27, Wilson, C.J., quashed a 
by-law incorporating a village because the census was taken before the 
by-law authorizing it to be taken was posted and was in fact based on 
falsehood and fraud. In R. ex rel. Sullivan v. Church, 1914, 26 O. W. R. 
375, 6 O. W. N. 116, 365, where the right to a deputy reeve under s. 51 
was in question, Britton, J., said : — 

" Many sections of the Municipal Act refer to population. Popu- 
lation must be determined by the census or otherwise according to 
the interpretation clause. That may not be correct, but it must be 
accepted as correct for the specific purpose." 

In Arthur v. Arthur, 1891, 21 O. R. 60, an attempt to incorporate a 
separate school, Boyd, C, said : — 

" The creation of corporations is a prerogative act, and when 
the power to make is delegated to private persons to be exercised in a 
certain way, any deviation therefrom is not an exercise of the power 
delegated ; in such a case the form is of the substance and blunder in 
form means invalidity and accordingly, as the proceedings had been 
initiated by less than five qualified residents as required, he held 
that there had been a fundamental error which vitiated all the pro- 
ceedings." 

Application to quash may be made by the township affected : s. 285. 

Shall Pass a By-laiv Erecting the District into a Village and 
declaring , . . its Boundaries. — 'Can the council when put in 
motion erect a part only of the district mentioned in the petition into a 
village or can it include in the new village territory not mentioned in the 
petition? It would appear that the prayer of the petition must be granted 
if all conditions precedent have been complied with, and that only the 
district mentioned in the petition can be erected into a village. The pro- 
vision that the by-law is to declare the boundaries of the village simply is 
a direction as to what the by-law is to contain. In re Southan^pton v^ 
Bruce, 1904, 8 O. L. R. 106, 664, was decided on a very different section, 
namely, s. 18 of 3 Edw. VII., c. 19. 



24 WHEN BT-IvAW EFFECTIVE. 

On the formation of new school districts, a council must deal only 
with the lands mentioned in the petition. In re Sydenham School Section, 
1903, 6 O. L. R. 417, 7 O. L. R. 49. Exact statement of boundaries is 
essential. Re Sydenham, supra. 

Notice of Intention to Pass. — Publication must be in accordance 
with s. 2 (p), which means a seven-day period, not a calendar week. 

Failure to publish as directed would probably be fatal to the by-law 
on a motion to quash. See Quashing By-laws, infra, p. 36. 

The Village shall be Deemed to have been Dnly Erected. — 

Not only can no application to quash be made after the time limited by s.-s. 
(9) , but (s. 13) in any action in which the legality of the corporation may he 
called in question, the village shall be deemed to have been duly erected. 
This is to avoid the serious consequences which might follow if an attack 
were made after the village had been created and become a distinct body 
from the remainder of the township with representation in the county 
council. The area would not be taxed by the township, and if the village 
corporation were dissolved, much confusion would result as pointed out 
by Wilson, C.J., in Re Fenton and Simcoe, 1885, 10 O. R. 27. S.-s. (9) 
would undoubtedly cure mere irregularities in connection with the pro- 
ceedings leading up to the erection of the viHage. But would it cure " a 
fundamental error " which vitiates all proceedings based on the assumption 
that a valid corporation had been called into existence, such as was consid- 
ered in Arthur v. Arthur, supra? On the question of statutory conditions 
precedent to jurisdiction, see McKillop v. Logan, 1899, 29 S. C. R. 702 at 
705; a drainage case. See also Re Johnston and Tilbury E., 1911, 25 O. L. 
R. 242 C. A. ; and Otto v. Roger, 1917, 40 O. L. R. 381, App. Div. 

Similar validating statutory provisions will be found in s. 296 (5) as 
to money by-laws after registration, and were considered by the Court of 
Appealfor Manitoba, in Molison v. Woodlands, 1915, 25 M. R. 634, where 
a certain certificate was made conclusive evidence that the corporation had 
been legally formed. See also Canadian Agency v. Tanner, 1913', 6 Sask. 
at 161, and Wenlock v. River Dee, 1888, 38 Ch. D. 534, 57 L. J. Ch. 946. 
See also s. 20 (7) for a similar provision. 

Police Villages. — See Part XXIII. A police village is not a cor- 
poration. Smith V. Bertie, 1913, 28 O. L. R. 330. 

Area ot Town or Village.^Section 14 is a positive declaration 
forbidding the erection of any town or village of more than the prescribed 
area. If the section is not complied with, it will be a ground for quashing 
the by-law. 

II. Powers of the Municipal Board as to status and 
boundaries. 

Orders of the Ontario Railway and Municipal Board should 
be upheld. — In Bell v. Burlington, 1915, 34 O. L. R. 410, 619, where an 
order of the Board was attacked on the ground that it contained a mis- 
recital, the order was upheld, Boyd, C, saying: 

" Having regard to the statutory ■ safeguards which are thrown 
around the acts of the Board and to the fact that the Board exercises 
the administrative authority formerly delegated to the Lieutenant-Gov- 
ernor, every assumption should be made in favour of the validity of such 
orders — particularly when the Legislature has provided an easy means 
of relief by summary application to the Lieutenant-Governor : R. S. 0. 
1914, ch. 186, sec. 47 ; and also on questions of jurisdiction or of law by 
direct appeal to a Divisional Appellate Court ; ib. sec. 48." 
But DOW see section 19 (2) as amended after this decision. 

17. The Municipal Board may, upon the application 
of the council of a village, annex a district to it where 



FOKMATION OF MUNICIPALITY BY MDNIOIPAI, BOAED. 25 

from the proximity of the streets or buildings in the 
district or the probable future exigencies of the village, 
the Board deems it expedient. 3 Edw. VII. c. 19, s. 16, 
amended. 3 & 4 Geo. V. c. 43, s. 17. 

18. — (1) The Municipal Board may annex land in 
unorganized territory to an adjacent incorporated town- 
ship therein, and may also, on the application of two or 
more adjacent townships in such territory form them, 
with or Avithout additional territory, into one township 
municipality, vbearing such: iiame as the Board may 
direct. R. S. 0. 1897, c. 225, s. 64 (1), amended. 

(2) The Board, on the application of the council of a 
city or town in unorganized territory, may annex to the 
city or town the whole or any part of an adjoining un- 
organized township, on such terms and conditions as may 
be determined by the Board. 2 Geo. V. c. 17, s. 35 (2). 
3 & 4 Geo. V. c. 43, s. 18 (1-2). 

19.^(1) Subject to s.-s. 2 of s. 14 the Municipal 
Board may, upon the application of .not less than 75 male 
inhabitants of the locality, each of the full age of twenty- 
one years, incorporate as a town the inhabitants of a 
locality having a population of at least 500, and situate 
in one or more of the provisional judicial districts, 
whether or not it lies within an existing township munici- 
pality. 

(2) The order of the Board shall declare the name 
which the town shall bear, and its boundaries and the dat^i 
when the incorporaJtion shall take effect, and shall also 
provide for the apportionment, collection and payment 
over of the taxes for the current year. 2 Edw. VII. c. 30, 
ss. 1 and 2, part. 3 & 4 Geo. V. c 43, s. 19 (1-2). 5 Geo. 
V. c. 34, s. 4. 

See Bell v. Burlington,' supra. 

20. — (1) The Board may erect a town having a popu- 
lation of not less than 15,000 into a city, and a village 
having a population of not less than 2,000 into a town, 



26 FORMATION OF MUNICIPALITY BY MUNICIPAL BOARD. 

and declare the name which it is to bear; 3 Bdw. VII., e. 
19, s. 21, first part. 

(2) Where, from the proximity of streets or build- 
ings or the probable future exigencies of the newly 
erected city or town, the Board deems it desirable that 
part of one or more adjacent townships should be in- 
cluded in it, the Board may, subject to the provisions of 
s.-s. 6, detach such part from the township or townships 
and annex it to the newly erected city or town. 3 Edw. 
VII, c. 19, s. 22, amended. 

(3) The newly erected city or town shall be divided 
into wards bearing such numbers or names as the Board 
may direct. 

(4) The number of wards in the town shall not be less 
than three, and each of the wards in the city or town 
shall have a population of not less than five hundred. 3 
Edw. VII. c. 19, s. 23, amended. 

(5) Notice of the application for the erection of the 
town into a city or of a village into a town shall be pub- 
lished at least once a week for three months. 

(6) Where it is proposed that part of one or more ad- 
jacent townships shall be embraced in the newly erected 
city or town, the notice shall so state and shall designate 
the part proposed to be embraced therein. 3 Edw. VII. 
c. 19, s. 21, par. 1 amended. 

(7) The order shall be conclusive evidence that all 
conditions precedent to the making of it have been com- 
plied with, and that the city or town has been duly erected 
in accordance with the provisions of this Act. New. 
3 & 4 Geo. V. c. 43, s. 20 (1-7). 

21- — (1) Where the council of a city or town by reso- 
lution declares that it is expedient that part of an ad- 
jacent township should be annexed to the city or town, 
and the majority of the municipal electors in such part 
petition the Board to add the same to such city or town, 
and after due notice of such resolution and petition has 



ANNIEXATION TO TOWN OR OITT. 27 

been given by the conneil of such city or town to the coun- 
cil of such adjacent township, and also, where the part 
is proposed to be added to a city or to a separated town 
to the council of the county in which the township is situ- 
ate, the Board may, by order to take effect upon a day to 
be named therein, annex such part to the city or town 
upon such terms and conditions as to the adjustment of 
assets and liabilities, taxation, assessment, improve- 
ments, or otherwise as may have been agreed upon, or as 
shall be determined by the Board. Provided, however, 
that should the terms and conditions agreed upon not 
meet with the approval of the Board,the petitioners or the 
city or town may withdraw froin the proposed annexa- 
tion. 3-4 Geo. V. c. 192, s. 21 (1) ; 8 Geo. V. c. 32, s, (1). 

(2) The order may, before it takes effect, be amended 
in any respect by a further order, and may at any time 
when it does not correctly set forth the terms and condi- 
tions as to the adjustment of assets and liabilities, taxa- 
tion, assessment, improvements or otherwise agreed 
upon, be amended to conform with the agreement. 6 
Edw. VII. c. 34, s. 1 ; 8 Edw. VII. e. 48, s. 1, amended. 

(3) The Board may direct that a vote be .taken for 
determining whether or not the majority of the muni- 
cipal electors of the part proposed to be annexed are in 
favour of its being annexed, and may fix the time and 
place for the taking of the vote, name the returning of- 
ficer, and make such other provisions as may be deemed 
necessary. New. 3 & 4 Geo. V. c. 43, s. 21 (2-3). 

22. Where territory constituting or forming part of a 
local municipality becomes part of a local municipality 
in another county, it shall thereafter form part of that 
county except for the purpose of representation in the 
Assembly. 3 Edw. VII. c. 19, s. 25, amended. 3 & 4 Geo. 
V. c. 43, s. 22. 

23. — (1) The Board may annex a town or a village to 
an adjacent urban municipality, where : 



28 AJTNEXATION OF TOWN OR VILLAGE. 

(a) The councils of the town or village and of the 
adjacent urban municipality by by-law assent 
to the annexation; and 

(fe) The assent of the municipal electors of the town 
or village is given to the by-law of the council 
thereof. 

(2) Subject to the provisions of s.-s. 5, the by-law 
may provide for the annexation unconditionally, or on 
such terms as may be deemed expedient. 

(3) If the urban municipality to which the toAvn or 
village is annexed has the requisite population, it may 
be erected into a city or town bearing such name as the 
Board may direct. 

(4) Such redivision into wards of the city or town 
as the annexation renders necessary shall also be made. 

(5) If a petition, signed by at least 150 electors of a 
town or village, praying that it may be annexed to an 
adjacent urban municipality, either unconditionally or on 
such terms as may be stated in the petition, is presented 
to the council of the town or village the council shall 
within four weeks after the presentation of the petition 
submit to the electors of the town or village for their 
assent thereto, a by-law providing for its annexation on 
the terms mentioned in the petition. 3 Edw. VII. c. 19, s. 
26, redrafted. 3 & 4 Geo. V. c. 43, s. 23. 

(Note. — Section 26a struck out as contradictory to the 
Representation Act, 8 Edw. VII. c. 2, s. 2, cl. (c).) 

{Note. — 88. 27 and 28, providing for the separation 
of a town from a county, and the reunion of a separated 
toivn with a county, struch out as being more properly a 
subject of special legislation, as in the case of a 
separation of a union of counties. Under the present 
law, if the county does not approve of the separation the 
town is not to be allowed any interest in the property of 
the county, and in the case of a proposed reunion the 
by-law of the town must be confirmed by a county by-law 



EFFECT OP ANNEXATION OEDER. 39 

before the reunion can take place, even though an arbi- 
tration has been had as to the adjustment of assets and 
liabilities.) 

Changes ivith Respect to Status and Boundaries of Munici- 
palities.-— By ss. 17 to 23 the Ontario Railway and Municipal Board is 
given jurisdiction upon a proper application to effect changes in the status 
of existing municipalities by erecting a viUage into a town or a town into 
a city, with full power to constitute wards, and the Board is also given 
jurisdiction by order upon application to annex districts or municipalities 
to existing municipalities. While the Municipal Act provides for appli- 
cation being made to the Board, the Board nevertheless has jurisdiction 
to act on its own motion or upon the request of the Lieutenant-Governor 
in Council to enquire, hear and determine any matter or thing which it 
may enquire into upon application or complaint. 

While s. 20, s.-s. 7, supra, provides that an order of the Board made 
under s. 20 shall be conclusive evidence that the town or city has been 
duly erected, it should be noted that all orders of the Board are, by s. 45, 
ss. 3, of the Ontario Railway and Municipal Board Act, binding and con- 
clusive with respect to any question of fact, and by s. 48 (8) every order of 
the Board is final, except as hereinafter mentioned, and no order of the 
Board can be questioned, reviewed, restrained or removed by prohibition, 
injunction, certiorari or any other process or proceeding in any Court. 

The orders of the Board are subject to an appeal upon a question of 
jurisdiction or a question of law under s. 48 of the Ontario Railway and 
Municipal Board Act, and under s. 47 the Lieutenant-Governor in Council 
may, upon petition, vary or rescind any order of the Board. 

It wiU therefore appear that when the Board has made an order 
under any of the foregoing sections, the order must be assumed to be good 
for all purposes unless set aside on appeal or on petition to the Lieutenant- 
Governor in Council. 

Annexation of Fart of Toiirnsliip to Village. Postponement of 
Time for Taking Effect. Erection of Village Including Annexed 
Portion into Toivn before Time for Taking Effect. Assesisment 
of Lands in Annexed Territory. The Ontario Municipal Board, by 
an order dated 10th June, 1914, annexed part of a township to a village, 
and directed that the annexation should take effect from and after the 31st 
of December, 1914. On the 9th of December, 1914, the Board made a 
second order erecting a village into a town, subsequently by the advice of 
the Board a supplementary assessment of the newly annexed territory was 
made in 1915, and on the basis of this assessment taxes were levied in 1915, 
The Appellant Division held that the assessment was a nullity, and the 
municipality was not entitled to demand taxes based on it. The only assess- 
ment that could legally be made in 1915, could not be made the basis of a 
tax levy in 1915. Bell v. Burlington, 1915, 34 O. L. ,R. 410, 619. But 
note that sec. 19 (2) has been amended since this decision. 

Townships. 

24. — (1) The inhabitants of a township in unorgan- 
ised territory having a population of not less than 100, 
and the inhabitants of a locality not surveyed into town- 
ships having an area of not more than 20,000 acres and a 
population of not less than 100, may become incorporated 
as a township municipality. R. S. 0. 1897, c. 225, s. 1 (1) 

(2) Upon the receipt of a petition praying for incor- 
poration, signed by not less than 30 of the resident house- 



30 INCORPORATION OF TOWNSHIP. 

holders of the township or locality, and defining the 
limits of the proposed municipality, and a deposit being 
made of a sum sufficient to defray the expenses of the 
meeting to be held as hereinafter mentioned, a Judge of 
the District Court of the Provisional Judicial District 
in which the township or locality is situate may call a 
meeting of the inhabitants of it to consider the expedi- 
ency of becoming incorporated and to choose a reeve and 
four councillors for the proposed municipality, and he 
shall name a fit person to be the chairman of the meeting, 
and make such provisions as he may deem proper for 
the conduct of the meeting and the manner of choosing 
the reeve and councillors ; and notice of the meeting shall 
be given in such manner as the Judge shall direct. E. 
S. 0. 1897, c. 225, ss. 2, 3, 4, part. 

(3) Every resident male householder of the full age 
of 21 years and a British subject shall be entitled to vote 
or to be elected as reeve or councillor at such meeting. 
R. S. 0. 1897, c. 225, s. 6. 

(4) The chairman shall preside at the meeting and' 
shall record the votes given, and in the case of an equality 
of votes between two candidates for the office of reeve or 
councillor he shall give the casting vote, and he shall 
forthwith, after the close of the meeting, make a report 
in writing of the result of it to the Judge. R. S. 0. 1897, 
c. 225, s. 4. part. 

(5) The report shall contain a statement of the votes 
given for and against the proposed incorporation, and 
for and against each person proposed for reeve or coun- 
cillor, and shall be verified by the oath of the chairman. 
New. See R. S. 0. 1897, c. 225, s. 4. 

(6) If it appears to the Judge from the report that a 
majority of the inhabitants present at the meeting voted 
in favour of incorporation, and that those so voting num- 
ber or include not less than 30 resident householders and 
no objection to the report or to the manner in which the 
meeting- was conducted or the reeve and councillors were 
chosen has been filed with the Judge within 10 days after 



DECLARATION BY JUDGE. 31 

the receipt by him of the report, the Judge shall declare 
in writing, Form 1, the inhabitants of the township or 
locality to be incorporated in accordance with the prayer 
of the petition and state the persons who were elected as 
reeve and councillors and fix the time and place for the 
first meeting of the council, and shall forthwith transmit 
to the Minister of Lands, Forests and Mines, and to the 
Provincial Secretary, a certified copy of the declaration, 
and the Provincial Secretary shall thereupon cause notice 
of it to be published in the Ontario Gazette. New. See 
R. S. 0. 1897, c. 225, s. 5, last part, and s. 15. 

FOEM 1. 

Declakation of Incorpoeation. 

Townships in Unokganized Tekritoby. 

I, Judge of the District 

Court of the Provisional Judicial District of 
befeby certify : j 

1. That the inhabitants of the township of 

in the said district (or of that part of the said district described as 
follows [describing itj) , or of the townships of and 

in the said district ( as the case may 6e) , 
are incorporated as a township municipality (or as a union of townships 
municipality, as the case may 6e), by "the name of the Corporation of 
the township of (or of the united townships 

of , as the case may he). 

2. That was elected reeve and 

were elected councillors for the municipality. 

3. The first meeting of the council shall be held on the 

day of at . . 

Dated at this day of 

, 19 . 

(7) If such an objection is filed within the prescribed 
time the Judge shall hear and determine the matter com- 
plained of, and if he finds that the complaint is well 
founded shall call a new meeting and perform the other 
duties assigned to him by s.-ss. 2 and 6. New. 

(8) The incorporation shall be deemed to be complete 
when the Judge has signed the declaration, but shall not 
take effect until the 31st day of December following. 
New. 3 and 4 Geo. V.' c. 43, s. 24. 

Union of Townships. 

25. A uiiion of townships shall consist of two or more 
toAvnships united for municipal purposes and having in 



32 UNION dp TOWNSHIPS. 

common, as if one township, all offices and institutions 
established by law pertaining to township municipalities. 
New. 3 & 4 Geo. V. c. 43, s. 25. 

26. The Lieutenant-Governor in Council may, by pro- 
clamation, annex a township, or two or more townships 
lying adjacent to one another laid out by the Crown in 
unorganized territory, to any adjacent county, and may 
erect the same with another township of such county into 
a union of townships. 3 Edw. VII. c. 19, s. 29, amended. 
3 & 4 Geo. V. c. 43, s. 26. 

27. — (1) The inhabitants of two or more townships in 
unorganized territory, adjacent to one another, and hav- 
ing in the aggregate a population of not less than 100, 
may become incorporated as a union of townships. 

(2) The proceedings for and incidental to the incor- 
poration and the election of the members of the first 
council shall be the same as provided by s. 24. E. S. 0. 
1897, c. 225, s. 1 (2), part amended 3 & 4 Geo. V. c. 43, s. 
27, (1-2). 

28. If two-thirds of the resident freeholders and ten- 
ants of a junior township whose names are entered on 
the last revised assessment roll petition the council of 
the county to be separated from the union to which it 
belongs, and to be attached to another adjoining town- 
ship in the county, and the council considers that the 
interest and convenience of the inhabitants of the town- 
ship would be promoted thereby, such council may separ- 
ate it from the union, and may erect it with such adjoin- 
ing township into a union of townships. 3 Edw. VII. c. 
19, s. 31 (2), amended 3 & 4 Geo. V. c. 43, s. 28. 

29. The order of seniority of townships forming a 
union of townships shall be determined by the number of 
freeholders and tenants thereof whose names are entered 
on the last revised assessment roll, and the township hav-. 
ing the largest number of them shall be the senior town- 
ship, and the other or others the junior township or town- 



SEPARATION OF JUNIOE TOWNSHIPS. 33 

ships, and where there is no such assessment roll for all 
or any one or more of the townships their seniority shall 
be determined by the functionary or body by which the 
union is formed. 3 Edw. VII. c. 19, s. 35, amended 3 & 4 
Geo. V. c. 43, s. 29. 

Separation of Junior Township from Union. 

30. — (1) When a junior township of a union of town- 
ships has 100 resident freeholders and tenants whose 
names are entered on the last revised assessment roll, 
the county council, if the union is not in,unorganized ter- 
ritory may separate the township from the union. 3 Edw. 
VII. c. 19, s. 30, amended. 

(2) If the junior township is in unorganized territory 
and has a population of not less than 100, the Municipal 
Board, upon the application of not less than 15 of the 
assessed freeholders and tenants therein, may separate 
the toAvnship from the union. R. S. 0. 1897, c. 225, s.l 
(2), part amended. 

(3) If a junior township has 50, but less than 100 
resident freeholders and tenants whose names are en- 
tered on the last revised assessment roll, and two-thirds 
of such resident freeholders and tenants petition the 
council of the county to separate the township from the 
union and the council considers the township to be so 
situated with reference to natural obstructions, that its 
inhabitants cannot conveniently remain united with the 
inhabitants of the other township or townships, the coun- 
cil may separate it from the union. 3 Edw. VII. c. 19, 
s. 31 (1), amended. 

(4) Where a union of townships consisting of more 
than two townships is dissolved by the withdrawal of a 
junior township, the remaining townships shall constitute 
the union which shall be continued under its former 
name, omitting ;that of the junior township. 

(5) Where a union of townships consisting of two 
townships only is dissolved, the inhabitants of each of the 

m.aT — 3 



34 WHEK INCORPOBATION TAKES EFFECT. 

townships shall become a separate corporation bearing 
the name of the township. New. 3 & 4 Geo. V. c. 43^ 
s. 30 (1-5). 

New Townships. — The Territorial Division Act, R. S. O. 1914, c. 3, 

s. 11, provides as follows : — , ' 

" 11. Subject to the provisions of the Municipal Act the Liea- 
tenant-Governor in Council may, by proclamation, constitute, from a 
day named therein, townships and unions of townships in those parts 
of Ontario in which townships or unions thereof have not been con- 
stituted, and may fix the metes and boundaries thereof." 

Changing Names of Toivnships. — The Territorial Division" Act, 
supra, s. 12, provides as follows : — 

" (1) The Lieutenant-Governor in Councif may change the name 
of any township where no letters patent have been issued granting 
lands therein. 

" (2) The Order in Council shall forthwith be published in the 
Ontario Gazette." 

Annexation of Gores, Islands, etc., to Townships. — The Ter- 
ritorial Division Act, ss. 14 and 15, provides as follows: — 

" 14. The Lieutenant-Governor in Council may, by proclamation, 
annex any gore or tract of land not forming part of any township 
to any adjacent township or parts thereof to adjacent townships. 

" 15. Where, in the application of the provisions of this Act, there 
is doubt as to the township in which any island or other tract of land 
or land covered with water lies, the Lieutenant-Governor in Council 
may, by proclamation, declare to what township the same belongs." 

Status of Certain Officers on Alteration of Boundaries. — 

The Territorial Division Act, s. 13, provides as foUows: — 

" 13. Where a part of a county or of a provisional judicial dis- 
trict has been or shall be formed into or annexed to another district, 
the coroners, justices of the peace and commissioners for taking affi- 
davits, residing in the territory so dealt with, shall be the coroners, 
justices and commissioners for the territorial district into which the 
territory in which they reside is formed and to which it has been 
attached, by the same tenure of office, and without their again taking 
any oath.'' 

Date when new Incorporation to take Effect. 

31. — (1) Where a corporation is constituted under 
this Act the incorporation shall take effect on the 31st 
day of December next after the proclamation, Order of 
the Municipal Board, or by-law by which it is effected, 
or on such other day as the functionary or body by which 
such incorporation is effected may fix, and. the function- 
ary or body by which the new corporation is constituted 
may, and where necessary shall, fix the dates and the 
place or places for holding the first nomination meeting 
and election, appoint a returning ofiicer and otherwise 
provide for the holding of the election according to law. 
8 Geo. V. c. 32, s. 2. 



EFFECT ON EXISTING BY-LAWS. ' 35 

(2) The returning officer shall perform all the duties 
in connection with the election which in other cases are 
to be performed by the clerk of a local municipality, and 
shall act as clerk of the new municipality until a clerk is 
appointed and has taken the oath of office. New. 3-4 
Geo. V. c. 43, s. 31 (2). 

Matters Consequent upon ihe Formation of New 
Corporations. 

32. The erection of a district into a village, or town, of 
a village into a town, or of a town into a city, or the sepa- 
ration of a township from a union of townships shall not 
affect the by-laws then in force in the district or munici- 
pality but the same shall remain in force until repealed 
by the council of the newly erected municipality, but 
nothing herein shall authorize the amendment or repeal 
of a by-law which the council by which it was passed 
could not lawfull}- amend or repeal. 3-4 Geo. V. c. 43, 
s. 32;5 Geo. V. c.'34, s. 6. 

Meaning of " In Force," s. 32. — In Re Denison and Wright 1909, 
19 O. li. E. 7, a Igcal option by-law, was finally passed by a township on 
January 25th, containing a provision that it should come into operation 
and be of full force and effect on the 1st day of May foUowiug. After 
25th January and before 1st May following, a district, part of the town- 
ship, was erected into a village, and the question was, was the by-law in 
force in the village? Meredith, O.J., said: — 

" In my opinion, the by-law in question had the force of law 
from the time of its final passing, although its prohibition did not 
become operative until a later day, and it certainly was an existing 
by-law. 

" The words ' in force ' are used in various parts of the statute 
law of this province, and not always, as I think, in the same sense, 
and the meaning to be attached to them must be gathered in each 
case by a consideration of the subject matter to which they relate. 
. . Section 56 (now s. 32), which is in pari materia with s. 55 > 
(now s. 33), deals with the case of an addition to the limits of a 
municipality, and its provision is that by-laws of the municipality are 
to extend to the additional limits, and that the by-laws of the munici- 
pality from which the addition has been detached are to ' cease to 
apply to the addition, except only by by-laws relating to roads and 
streets,' and that ' these shall remain in force until repealed by the 
council of the municipality to which the addition has been made.' 

" It is plain that the words ' remain in force ' are used as the 
equivalent of 'continue to apply.' 

" The expression ' the by-laws in force therein ' in s. 55 (now 
s. 33), means, I think, the existing by-la-ws of the municipality, and 
has the same effect as if the section had provided, as is done in s. 56 
(now s. 32), that the by-laws of the municipality of which the new 
municipality formed part, or of which it was comprised, should con- 
tinue in force or continue to apply to the new municipality until 
repealed or altered by the council of the new corporation. 

" It is most improbable that the Legislature intended that an 
existing by-law was not to affect the new municipality if the time 



36 EFFECT OF ANNEXATIOIT. 

for its coming into operation had not arrived when the new munici- 
pality came into existence." 

Quashing By-law Passed hetoxe Erection of Village. — 

In Re Vivian and Whitewater, 1902, 14 M. R. 153, a local option by-law 
passed by a municipality from which a district had subsequently been 
detached, was quashed without notice being given to the municipality of 
which the district was a part. It was held that the by-law still continued 
in force in the district and the order was so limited. 

33. Where a district or a municipality is annexed to a 
municipality, its by-laws shall extend to such district or 
annexed municipality, and the by-laws in force therein 
shall cease to apply to it, except those relating to high- 
ways, which shall remain in force until repealed by the 
council of the municipality to which the district or muni- 
cipality is annexed, and except by-laws conferring rights,' 
privileges, franchises, imnuinities or exemptions which 
could not have been lawfully repealed by the council 
which passed them. 3 Edw. VII. c. 19, s. 56, amended 3-4 
Geo. V. c. 43, s. 33. 

See Windsor v. Southern Rly., 1893, 20 A. R. S88, decided under then 
sec. 54. which pi-ovided that all bj'-laws should cease to apply except only 
by-laws relating to roads and streets. 

By-laws whicb can not Ijaw^fully be Repealed: s. 33. — In 

Alexander v. Huntsville, 1894, 24 O. R. 665, Rose, J., quashed a village 
by-law which was passed to repeal a township by-law in force in the village, 
passed before the village was erected, saying : — 

" The statute gave power to exempt for ten years, but once that 
power had been exercised, it does not seem to me there was any 
power to repeal the by-law so as to destroy rights granted thereunder : 
Wright V. Incorporated Synod, etc., of Huron, 29 Gr. 348, 11 S. O. R. 
95 ; Harrison's Mun. Manual, 5th ed., p. 211, note ee. 

"There is, I think, power in the Court to entertain this motion 
and to make the order, if there was no excuse for passing the repeal- 
ing by-law ; and I do not stay to determine whether such power be 
purely statutory or at common law." 

See also In re Cunningham v. Almonte, 1871, 21 C. P. 459, and Com- 
wallis V. C. P. R., 1891, 19 S. C. R. 702. 

Assets, Debts and Liabilities. 

34. Where a junior township is separated from a 
union of townships the senior or remaining township or 
townships shall be liable to the creditors of the union for 
all the debts and obligations of the union. 3-4 Geo. V. c. 
43, s. 34. 

{Note. — Section 34 is a change in the laiv so as to con- 
form ivith the principles applicable to cases of annexation 
of territory or formation of new corporations.) 



DIVISION OP ASSKTS ON SEPARATION OP TOWNSHIPS. 37 

35. Where a junior township is separated from a 
union of townships all taxes imposed by the' council of the 
union for the year in which the separation takes place 
shall be collected and paid over to the senior or remaining 
township or townships. 3 Edw. VII. c. 19, s. 60, first part, 
3 Geo. V. c. 43, s. 35. 

36. After a junior township is separated from a union 
of townships the property of the union shall be disposed 
of as follows: — 

{a) The real estate situate in the junior township 
shall become the property of that toAvnship : 

(B) The real estate situate in the remaining town- 
ship or townships shall be the property of the 
remaining township or townships ; 

(c) The two corporations shall be jointly interested 
in the other assets of the union, and the same 
shall be retained by the one, or shall be divided 
between both, or shall be otherwise disposed of, 
as they may agree ; 

{d) The one shall pay or allow to the other, in res- 
pect of the disposition of the real and personal 
estate of the union, and in respect of its debts, 
such sum as may be just ; 

(e) If the councils of the two corporations do not, 
within three months after the first meeting of the 
council of the junior township, agree as, to the 
disposition of the personal estate, or as to the 
sum to be paid by the one to the other, or as to 
the time of payment thereof, the matters in dis- 
pute shall be determined by arbitration ; 

(/) The amount so, agreed upon or determined shall 
bear interest from the day on which the union 
was dissolved; and the same shall be provided 
for by the corporation which is to pay it, as 
in the case of other debts. 3 Edw. VII. c. 19, s. 
32, 3-4 Geo. V. c. 43, s. 36. 



38 ASSETS AND LIABILITIES UPON ANNEXATION. 

37. Where one local municipality is annexed to an- 
other the corporation of the latter shall become and be 
liable to the creditors of the corporation of the former 
for its debts and obligations and all the property and 
assets of the corporation of the annexed municipality 
shall be vested in the corporation of the municipality in 
which it is annexed, and that corporation shall have the 
same rights and pov:ers as respects the collection and re- 
covery of all unpaid taxes imposed by the council of the 
annexed municipality including those for the year in 
which the annexation takes effect, as if such taxes had 
been imposed by the council of the municipality to which 
it is annexed. 3-4 G-eo. V. c. 43, s. 37. 

Debts.— See Woodstock y. Oxford, 1910, 22 O. L. R. 151, 44 S, C. R. 
603, where it Is said. " debts " means net debts. S«e below. 

Debts. — See the use of this term in Part XII. (Money By-laws), 
also in Part XIII. (Yearly Rates and Estimates), and Part XI v. (Re- 
specting Finances) : a debt means a liquidated sum owed whether due and 
payable or not. 

An obligation includes a debt but also includes other duties in respect 
of which a municipality may become liable to creditors : e.g., an obligatioii 
to continue or abandon erpropriation or arbitration proceedings. 

Claims for unliquidated damages' are not debts or obligations before 
judgment. Jones v. Thompson, 1858, 27 L. J. Q. B. 234, and In re Newman, 
1876, 3 Ch. D. 494 C. A., but would be considered an obligation under s. 84. 

Surplus Fund Accumulated by Keeping Within Actual Esti- 
mates.— In Woodstock V. Oxford, 1910, 22 O. L. R. 151, 0. A., affirmed, 
44 S. 0. R. 603, the city of Woodstock, after separation from the county of 
Oxford by special Act and adjustment of assets and lialjilities had been made 
discovered that the county had a secret surplus fund made up of accumu- 
lated yearly surplus taxes. The city brought action to open up the settle- 
ment and for its share of the fund. By special Act, s.-s. 3 of s. 21 of the 
Municipal Act, 1903, was made applicable. This was as follows: — 

" In case the application is for the erection of a town into a city, 
the town shall also pay to the county of which it forms part, such 
portion, if any, of the debts of the county as is just ; or the council 
of the town shaU agree with the council of the county as to the amount 
to be so paid, with interest from the time of the erection of the new 
city, and as to the periods of payment; or, in case of disagreement, 
the same shall be determined by arbitration under this Act; and upon 
the council proving to the Lieutenant-Governor in Council the pay- 
ment, agreement or arbitration, the Lieutenant-Governor may, by pro- 
clamation, erect the town into a city, by a name to be given thereto 
in the proclamation." 

Maclaren, J.A., in a dissenting judgment, said : — 

" If the matter had been referred to arbitration under the Act, 
and the existence of this fund to which the town of Woodstock Md 
materially.' contributed, and in which it was interested, had been con- 
cealed from the arbitrators, relief would have been granted under the 
principles laid down as to an arbitration under a somewhat analogous 
statute in Re Corporations of St. Catharines and Lincoln, 1881; 46 
U. C. R. 425, at p. 430. See also Russell on Arbitration and Award, 
9th ed., p. 322; Ingram v. Milnes, 1807, 8 East 445; Mitchell v. 
Staveley, 1812, 16 East 58. 



DEBTS AND OBLIGATIONS. 39 

" I cannot see how the just share of the city in the debts of the 
county could be determined without taking into account this surplus 
of _ $37,000, which was at the time in the county treasury, unappro- 
priated and available for the payment of the debts of the county pro 
tanto. The language of the statute is very broad, and I do not think 
that it should, be narrowed by any technical construction that would 
work such an injustice as to divert these moneys which had been in 
part eoutribnted "by the town, and in which they were fairly and 
equitably entitled to share." 

Moss, C.J.O., in giving judgment against the claim of the city in the 
result of which the majority of the Court agreed, said : — 

" Jt is difficult, too, to understand the position which the plaintiffs 
take with reference to their right to a portion of the fund. Putting 
it at the highest for them, the legislation did no more than to place 
them in the position the town occupied with reference to the fund 
at the date of the erection of the plaintiffs into a city. What was 
that petition? 

" However, or through whatever means, the fund was permitted 
to accumulate — and they are to be assumed not to have been improper, 
or dishonest — it constituted and was a surplus fund. It represented 
rates received from the municipalities comprising the county, provided 
for and raised by the county, as prescribed by ss. 402 to 407, inclu- 
sive, of the Municipal Act, 1903. Under the provisions of the Assess- 
ment Act then in force, these rates were collected by the tax collectors 
for the various municipalities, and with this duty the councils of the 
municipalities have nothing to do ; it is a Statutory obligation which 
the clerk of the municipality owes to the county and is bound to 
perform: Mowat, V.-C, in Grier v. St. Vincent, 1867, 13 Gr. 512, at 
p. 519 ; R. S. O. 1897, c. 224, ss. 129, 130, 133, 144, 265. 

" For several years_ the sums collected appear to have exceeded 
the estimates, and so, by operation of s. 408, the balance would form 
, part of the general fund of the municipality. 

" Whether or not, by means of an information by the Attorney- 
General, at the instance of one or more of the minor municipalities, or 
of a ratepayer or ratepayers in one of them, the defendants could 
have been compelled to administer the fund in accordance with the 
terms of s. 408, need not be inquired into. No such proceedings were 
taken. It seems plain that no one of the jnunicipalities comprising 
the county had, as a distinct entity, any property in or right to an 
aliquot or even a proportionate part. 

" Any benefit that might accrue to them or any of them could 
only come through the action of the county council, and whether any 
disposition of it would benefit any particular municipality, as apart 
from the other portions of the county, would depend upon considera- 
tions which it would he the province of the county council to deal 
with. 

" If the plaintiffs had continued as a town in the county, these 
would be their sole rights, and the legislation under which they with- 
drew does not appear to have placed them in any more advantageous 
position. 

" Then it is said that this is a trust fund upon which the Court 
may fasten and direct its administration. But it is a trust fund only 
in the sense that it is in the hands of the county and under the con- 
trol of the county council, whose duty it is to deal with it in accord- 
ance with the Municipal Act. It cannot be said that it is' a trust 
fund held for the benefit of the plaintiffs, nor that they represent in 
this action the ratepayers by whom the rates were paid, for the pur- 
pose of enforcing any supposed trust in respect of it. If a trust is 
to be enforced, it can only be at the instance of some person or body 
of persons entitled as an entity to benefit by the trust, and in an 
appropriate form of action with all parties interested in the trust 
properly represented. 

" The agreement of the 10th February, 1902, was made with 
reference to matters with which the parties were competent to deal 



40 ADJUSTMENT OF ASSETS. 

as consequent upon the erection of the plaintifEs into a city, but in no 
case could it have dealt with the fund in question, unless, perhaps, by 
consent of all the municipalities. 

"From no point of view does it appear to me that the plaintiffs 
are entitled to relief in this action. And, in my opinion, the judgment 
appealed from should be affirmed, and the appeal dismissed with 
costs." 

38. — (1) Where a district is erected into a village or 
town or is detached from one and annexed to another 
local municipality, there shall be an adjustment of assets 
and liabilities between the corporations of the municipal- 
ity from which the district becomes or is detached and the 
corporation of the village or town or of the municipality 
to which the district is annexed, as the case may be, and 
if the interest of the district in the assets of the corpora- 
tion of the municipality from which it becomes or is de- 
tached exceeds its proportion of the liabilities thereof, 
that corporation shall pay to the corporation of the vil- 
lage or town or of the municipality to which the district 
is annexed, as the case may be, the amount of the excess ; 
but if the district's proportion of such liabilities exceeds 
its interest in such assets the corporation of the village 
or of the municipality to which the district is annexed, as 
the case may be, shall pay to the corporation of the muni- 
cipality from which the district becomes or is detached 
the amount of the excess. 3-4 Greo. V. c. 43, s. 38 (1) ; 5 
Geo. V. c. 34, s. 7. . 

In the valuation of assets and liabilities : — 

(a) School houses not to be allowed for as they are vested in School 
Boards, whose limits of control may or may not be the same ap 
the municipal limits. 

(6) Sidewalks are allowed for as within municipal control and liability • 

(c) Mistakes in construction (e.g. waterworks), should not reduce 
value, being common incidents- of such construction: see South- 
ampton V. Saugeen, 1906, 12 O. L. K. 214. 

Adjustments in respect of ScbDollionses, Side-nralks and Mis- 
takes in Construction of Works. — In re Southampton and Saugeen, 
1906, 12 O. L. R. 214, a district was detached from the town of South- 
ampton and added to the township of Saugeen. An arbitration was held 
and an award made. The evidence of the dissenting arbitrator was taken 
for the purpose of determining what claims were made and what admitted 
by the arbitrators, following Buccleuch-v. Metropolitan Board of Works, 
1872, L. R. 5- H. L. 418 ; 41 L. J. Ex. 137, and Re Christie and Toronto 
Junction, 1895, 22 A. R. 21. affd., 29 S. C. R. 551, and having thus dis- 
covered how the award was made up, Falconbridge, C..T., thus dealt with 
the matter: — 

"... the two arbitrators should not have included in the 
assets of Southampton, of which Saugeen was entitled to a share, the 



ADJUSTMENT OF ASSETS. 41 

value of the school houses. The school houses are vested in a separate 
board and the limits of control by the school boards may be the same 
limits or different limits from that of the municipal corporation. 

" To a certain extent, the sidewalks are in like position, inas- 
much as (s. 599 of the Consol. Municipal Act, 1903), the soil and 
freehold thereof are vested in His Majesty. But the possession and 
control of and liability for sidewalks are immediately attached to the 
municipal corporation and to no other body. I therefore find against 
the contention of Southampton as to the sidewalks. 

" The alleged mistakes in construction may reduce the value of the 
waterworks as an asset, but these mistakes are common incidents of 
such construction and have been a misfortune alike of Southampton 
and of these petitioners, and I do not see that Southampton can claim 
any relief in this regard." 

Attempt by Xownsbip to make Expenditure for Works in 
District Shortly to he Detached and Added to a Town. — In Re 

Angus and Widdifield, 1911, 24 O. L. R. 318, a district, part of the town- 
ship of Widdifield, had, by proclamation dated 7th April, 1910, been 
annexed to the town of North Bay, the annexation to take effect on 1st 
January 1911. On 2nd September, 1910, the township submitted a by-law 
to the electors and it was duly passed to spend $33,000 in carrying out 
certain improvements in the district. Meredith, C.J.C.P., upheld the 
by-law, but his order was reversed in the D. C. on the technical ground 
that the copies of the by-law were not posted up as required, and on the 
ground of gross unreasonableness. Unreasonableness is no longer a ground 
on which by-laws in Ontario can be quashed : s. 249 (2) . 

Adjustment in Respect of Drainage Works. — In re Township 
of Sarnia and Town of Sarnia, 1882, 1 O. R. 4il, the arbitrators appointed 
to make the adjustment necessary where a portion of the township has 
been added to the town, refused to consider the indebtedness of the town- 
ship in respect of the benefit to roads resulting from a drainage scheme, 
and the award was set aside and referred back with instructions to take 
this into consideration, but on the contrary such portion of the liability 
in respect of drainage scheme as has been directly assessed upon the lands 
benefited, should not be taken into consideration. In Re Point Edward and 
Township of Sarnia," 1879, 44 TJ. C. R. 461, it was held that Uability to 
assessment in respect of government drainage was not a matter to be 
adjusted in case of the erection of a village. 

Date of Adjustment, Interest on Amount Aurarded. — In re 

Middlesex and London, 1855, 14 U. C. R. 334, an award made in connec- 
tion with an arbitration to settle differences between the newly created 
city of London and county of Middlesex, was held good in so far as the 
award was made as of the date on which London was declared a city and 
not as of the date of the award, and was also held good in so far as it 
gave the city three months in which to pay the sums found to be due, 
but was set aside in so far as it assumed to make an adjustment for the 
future in connection with the maintenance of prisoners and the upkeep of 
the court house and gaol. 

Adjustment in Respect of Schools. — In re Hamilton and Mc- 
Nichol, 1908, 12 O. W. R. 1015, a part of a township was added to the 
city of Hamilton, and within the added part was an entire school section, 
having a school house and lands. The Hamilton Board used the school 
lands for educational purposes for a time, and then offered them for sale. 
It was held that the Board had a good title and could sell. 

No Adjustment in Respect of Expenditure on Roads in 
Some iClases. — In re Northumberland and Cobourg, 1860, 20 U. C. R. 
283, the arbitrators appointed to adjust matters resulting from the sepa- 
ration of the town, found that all the indebtedness of the county had been 
incurred for making roads which had been of no benefit to the town, and 
they not only ordered that the town should pay nothing in respect of such 



43 ADJUSTMENT OF ASSETS, ETC. 

indebtedness, but on the contrary, ordered the county to refund, the 
amounts paid by the town in respect of the indebtedness, and the award 
was upheld. 

Adjustment of Fund Appropriated but not Expended. — In 

East Toronto v. York, 1899, 16 0. R. 566, the Ontario Municipalities Fund 
paid to the county of York, under R. S. O. 1887, c. 184, ss. 378 and 379, 
was invested by the county, the interest being appropriated to school 
boards. When the villages of East Toronto , and West Toronto were 
erected, they claimed that the fund was divisible. Boyd, C, distinguished 
Re Albemarle and Eastnor, 1879, 45 U. C. R. 133, 46 U,. O. R. 188, where a 
fund appropriated and expended was held to be neither an asset or liability 
of the union and held that the fund, though appropriated, was not expended 
and was therefore divisible. 

Adjustment of Bonus Debentures. — In re North Norwich and 
Norwich, 1878, 44 U. C. .R. 34, the liability in respect of by-law authoriz- 
ing a bonus to a railway company was adjusted between the township and 
a newly erected village, by providing that the village should pay one- 
ninth of the indebtedness. 

No Adjustment in Bespect of Bridges in Some Cases. — In 

Ottawa V. Nepean, 1910, 16 O. W. R. 969, 17 O. W. R. 1051, 2 0. W. N. 
49, 480, where a certain portion of the township of Nepean was annexed 
to the city of Ottawa, an arbitration was held in which the arbitrators 
awarded that the city of Ottawa pay to the township of Nepean a certain , 
sum in respect of debentures' issued by Nepean to obtain money to construct 
bridges within the annexed territory and they also ordered a payment 
by Nepean to Ottawa in respect of the interest which the annexed territory 
had in the bridges, at the time of annexation. The Court of Appeal held 
that bridges erected by Nepean on original road allowances did not come 
within the words " property and assets " in s. 58 of the Cons. Mun. Act, 
1903. The bridges were devoted and dedicated to the public, and after 
the annexation the inhabitants of the added territory are as fully entitled to 
their use as they were before, i 

(2) If the corporations do not within three months 
after the separation takes effect agree as to such adjust- 
ment, the matter shall be determined by arbitration. 

On a motion to set aside an award made by two out of three arbitrators 
for the settlement of the terms of separation and annexation, the evidence 
of the dissenting arbitrator as to th€ basis of the award is admissible: Re 
Southampton v. Saugeen. 1906, 12 O. L. R. 214. 

As to arbitration generally, see Part XVI. 

(3) Where a district is detached as well from a connty 
as from the local municipality, of which it forms part, 
there shall be a similar adjustment of the assets and lia- 
bilities of the corporation of the county from which the 
district is detached between that corporation and the 
corporation of the county to which the district is annexed, 
and the provisions of s.-ss. 1 and 2 shall mutatis mutandis 
apply. 

(4) If the corporation of the county, or, of the local 
municipality, does not within three months after the 



REAL ESTATE AND TAXES. 43 

separation takes effect, notify the corporation of the 
other county or local municipality that it requires an ad- 
justment of the assets and liabilities, its right to claim an 
adjustment shall be barred. 

(5) Where a toAvn not being a separated town is erec- 
ted into a city, or a town or village is annexed to a city 
or separated town, there shall be a similar adjustment 
of the assets and liabilities of the corporation of the 
county from which the town or village is withdrawn be- 
tween that corporation and the corporation of the city or 
separated town. See 3 Edw. VII. c. 19, s. 58 (1). 

(6) Where a town is erected into a city the city shall 
not be entitled, in the adjustment of assets and liabilities 
to any allowance in respect of its interest in the court 
bouse or gaolof the county. 3 Edw. VII. c. 19, s. 510 (1), 
3-4 Geo. V. c. 43, s. 38. 

39. — (1) Where a district is erected into a village or 
town or is detached from one local municipality and an- 
nexed to another, the real estate belonging to the corpora- 
tion from which the district becomes or is detached and , 
situate therein, shall belong to and be vested in the cor- 
poration of the village or town, or of tjie municipality to 
which the district is annexed, as the case may be, but this 
shall not apply to a town hall and the land on which it is 
erected or which is used or enjoyed in connection with it, 
but the same shall remain the property of the corporation 
of the municipality from which the district becomes or is 
detached. See 3 Edw. VII. c. 19, ss. 13 and 32; 3-4 Geo. 
V. c. 43, s. 39 (1) ; 5 Geo. V. c. 34, s. 8. 

(2) Except where otherwise provided, the taxes im- 
posed by the council of the municipality from which the 
district becomes or is detached for the year in which it is 
detached shall belong to the corporation of that munici- 
pality and may be collected and recovered by it as if the 
district had not been detached but still remained part of 
the municipality. 3-4 Geo. V. c. 43, s. 39 (2) ; 5 Geo. V. 
c. 34, s. 9. 



44 COMPIvBTION OF WORK UNDEETAKEN. 

Where limits are extended to take in township lands which were 
exempted from taxation : See Windsor v. Canada Southern, 1893, 20 A. R 
388. 

Former Laiv as to Ijiabilities Incurred by United Townships: 

— The former law will be found in Wigle v. Gosfield South, 1901, 
1 O. L. R. 519 C. A. It provided that after a separation or union of 
townships, each township which formed the union should remain subject 
to the debts and liabilities of the union as if the same had been contracted 
or incurred by the respective counties or townships of the union after the 
dissolution thereof. Section 55, Consolidated Municipal Act, 1883. In 
this case a claim for damages resulting from drainage works, was under 
consideration. 

40. — (1) Where a work or service coming within the 
provisions of The Municipal Drainage Act or of The 
Local Improvement Act has been undertaken by a cor- 
poration, and after it has become liable for the carryiag 
out of the same, any land liable to be specially assessed 
becomes a new municipality or is annexed to another 
municipality, the corporation of the municipality from 
which such land becomes or is detached may complete 
such work or service, and may enter upon and acquire any 
land lying within such new or other municipality neces- 
sary for the completion of such work or service ; and may 
take all such proceedings, pass all such by-laws, make all 
such special and- other assessments, impose all such spe- 
cial and other rates, issue and sell all such debentures, 
borrow all such money, and do all such other acts and 
things as are necessary to complete such work or service, 
and to provide for the cost thereof in the same manner as 
if the land so liable had not become a new municipality 
or been annexed to another municipality. 

(2) The corporation by which the work or service was 
undertaken shall be indemnified by the corporation of the 
municipality which is constituted from such land or to 
which such land is annexed against all debts and lia- 
bilities incurred by it before the formation of the new 
corporation or the annexation of such land for or in re- 
spect of any such work or service to the extent to which 
the land lying within such new or other municipality was 
specially assessed and in adjusting the assets and lia- 
bilities consequent on the detachment of such land the 
debts incurred by the corporation of the municipahty 
from which it was detached, for its share of the cost of 



COLIvBCTION OF SPECIAL KATES. 45 

sucli work or service, shall be taken into account; see 3 
P:dw. VII. c. 19, s. 58 (2-3). 

(3) Where the land specially assessed lies wholly 
within such new or other municipality, the corporation 
thereof shall be liable for the entire debt in respect of 
such work or service, and the clerk of the municipality 
from which the land was detached shall furnish the clerk 
of such new or other mimicipality with certified copies 
of all the by-laws relating to such work or service and 
the rates imposed by such by-laws shall be collected by 
the corporation of the new or other municipality, and 
that corporation shall pay the principal and interest of 
the debentures issued in respect of such work or service 
as they become due and shall indemnify the corporation 
of the municipality from which the land was detached 
against the same. See 3 Edw. VII. c. 19, s. 58 (4). 

(4) Where part only of the land specially assessed 
lies within the -new or other municipality the clerk of the 
municipality from which it was detached shall furnish 
the clerk of such new or other municipality with a certi- 
fied copy of the by-law imposing the special assessment, 
and the corporation of such new or other municipality in 
each year in which a special rate upon such lands is pay- 
able, shall collect the same and shall pay over the sums 
collected to the treasurer of the municipality from which 
such land was detached, when and as the same is collected 
and in the adjustment of the assets and liabilities conse- 
quent upon the detachment of such land the debts incur- 
red by the corporation of the municipality from which it 
was detached for its share of the cost of such work or 
service shall be taken into account. See 3 Edw. VII. c 19, 
s. 58 (5) ; 3-4 Geo. V. c. 43, s. 40. 

Payment of Special Rates to Treasurer of Old Corporation) 

— In EWerslie v. Paisley, 1884, 8 O. R. 270, a village corporation 
whichi had 'been detached from a township collected special rates im- 
posed for school purposes, and instead of paying the sums collected to 
the treasurer of the township, paid them without express authority to the 
treasurer of the school district who converted, the money to his own use 
and died insolvent. The township sued the village for the amount and 
succeeded. It would have made no difference had the township directed 
the money to be paid as it was, because the statute imperatively directed 
to whom the rates should be paid, and neither corporation could authorize 
or excuse payment to another. It is no objection to a claim for moneys 



46 EFFECT ON OFFICIAI<S AND SUEETIES. 

lost as above, that the defendants have no power to levy and collect, as to 
which see Frontenae v. Kingston, 1871, 30 U. C. R. 584 at 595, where it is 
said : — 

" The defendants are by law liable to the demands now made. . . . 
Then why should not the plaintiffs obtain a judgment against them? 
The objection can only be because It may be said it may be of no 
use to the plaintiffs ; they will not be able to enforce it ; it would be 
illegal on the part of the defendants if they were to pay it. But the 
inability to make the judgment productive is no defence to the action, 
nor any reason why the judgment should not be obtained." 

Assets. — As to whether " bridges " are " assets " within the meaning 
of this section, see Ottavca v. Nepean, 2 O. W. N. 49, 4S0 ; 16 0. W. E. 
969 ; 17 O. W. R. 1051, and sec. 38 (1) supra. 

41. Where the land detached is subject to rates for 
the payment of a bonus or aid granted by a part of a 
township in aid of a railway, the provisions of s. 40 shall, 
mutatis mutandis, apply. 3-4 Geo. V. c. 43, s. 41. 

42. Where a district is erected into a village, or a 
village into a town, or a town into a city, or a township 
is separated from a union of townships, the council hav- 
ing authority in the district or municipality at the time 
of the erection or separation shall, until the council of the 
new corporation is organized, continue to have the same 
powers as before such erection or separation. 3 Edw. 
VII. c. 19, s. 62; 3-4 Geo. V. c. 43, s. 42. 

Officials and Sureties. 

43. — (1) The separation of a junior township from a 
union of townships shall not affect the office, duty, power 
or responsibility of any officer of the union who con- 
tinues to be an officer of the remaining township or town- 
ships after such separation, or of the sureties of such 
officer or their liability, further than by limiting such 
office, duty, power, responsibility, suretyship and liability 
to the remaining township or townships. 3 Edw. VII. c. 
19, s. 63. 

(2) Every such officer shall, after the separation, be 
the officer of the remaining township or townships as if 
he had been originally appointed an officer thereof. 3 
Edw. VII. c. 19, s. 64. 

(3) The sureties for such officer shall remain liable, as 
if they had become his sureties in respect only of the 



NEW DIVISION INTO WAUDS. 47 

remaining township or townships, and all securities shall, 
after the separation, be read as if they had been given 
only to or for the benefit of the remaining township or 
townships. 3 Edw. VII. c. 19, s. 65 ; 3-4 Geo. V. c. 43, s. 43. 

New Division into Wards. 

44. Where the council of a city or town before the 15th 
day of July in any year, by a vote of two-thirds of all the 
members, passes a resolution affirming the expediency of 
a division or a new division into wards of the city or 
town or of a part of it, the Municipal Board may divide 
or re-divide the city or town or part of it into wards as it 
may deem expedient, provided that no ward shall have a 
population of less than five hundred, and that there shall 
be at least three wards in any such city or town. 5 Geo. 
V. c. 34, s. 10. 



48 MUNICIPAL COUNCILS HOW COMPOSED. 



PART II. 

Municipal Councils — How Composed. 

Counties. 

45. The council of a county shall be composed of the 
reeves and deputy reeves of the towns, not being separ- 
ated towns, villages and townships in the county. 6 Edw. 
VII. c. 35, s. 1, part amended. 3 & 4 Geo. V. c. 43, s. 45. 

County Councils. — The number of members of a county council is 
now determined by the joint operation of ss. 45 and 51, and the number 
may fluctuate from year to year according to the number of municipal 
electors on the respective voters' lists of the towns, townships and villages 
in the county. The members of the county council now represent the 
several local municipalities within it and not artificial county council 
divisions as formerly. 

Where the right of a local municipality to a deputy-reeve is con- 
tested, the privilege of doing so is by 4 Geo. V. c. 33, s. 5, given to any 
municipal elector in the county or ( ?) where the validity of the election is 
contested. Before this amendment was made, the right of a local munici- 
pality to a deputy-reeve could only be contested by an elector of such local 
municipality. 

As to the number of deputy-reeves to which a local municipality is 
entitled, see s. 51. 

Cities. 

46. — (1) Subject to subsection 7 the council of a city 
shall be composed of a mayor, the members of the Board 
of Control, if the city has such a -board, and 

(a) Three aldermen for each ward, or 

(b) Where the council by by-law so provides two 
aldermen for each ward; 3 Edw. VII. c. 19, s. 70 
{!), part amended, ov 

(c) In the case of a city having a population of not 
more than 15,000, where the council by by-law 
so provides, one alderman for every 1,000 of the 
population. 3 Edw. VII. c. 19, s. 71a (3), part 
amended. 

(2) In the case provided for by clause (c) of subsec- 
tion 1, or where the council of a city having a population 



CHANGING NUMBER OF ALDERMEN. 49 

of more than 15,000 by by-law so provides, the aldermen 
shall be elected by general vote, and the number of alder- 
men shall be the same as if they were elected by wards. 
3 Edw. VII c. 19, s. 71a (5), amended. 

(3) A by-law for the purposes mentioned in clause 
(b) or (c) of subsection 1 shall not be repealed until at 
least two annual elections have been held under it, and a 
by-law under subsection 2 shall not be repealed until at 
least five annual elections have been held under it. 3 
Edw VII. c. 19, ss. 70 (2) and 71a (7), part, and 10 Edw. 
VII. c. 85-, s. 1, amended. 

(4) A by-law for any of the purposes mentioned in 
subsections 1 and 2 and a by-law repealing any such by- 
law shall be passed not later in the year than the first day 
of November and shall not Ibe passed unless it has 
received the assent of- the municipal electors. 3 Edw. 
VII. c. 19, s. 70 (1), part, and s. 71a (6), amended. 

(5) Every such by-law including a repealing by-law 
shall take effect at and for the purposes of the annual 
election next after the passing of it. 3 Edw. VII. c. 19, 
s. 71a(9). 

(6) Subject to subsection 3 where the petition of at 
least one-fifth of the municipal electors is presented on or 
before the first day of November in any year, praying for 
the passing of a liy-law repealing a by-law for the pur- 
pose mentioned in clause (c) of subsection 1, or where a 
petition of not less than 400 electors is presented praying 
for the passing of a by-law for the purpose mentioned 
in subsection 2, or for the repeal of a by-law passed under 
that subsection, the council shall submit the question of 
making the proposed change to a vote of the municipal 
electors at the next ensuing annual election and if the 
voting is in favour of the change shall without delay 
pass a by-law in accordance with the prayer of the peti- 
tion. 3 Edw. VII. c. 19, s. 71a (7), part amended. 

(7) Notwithstanding anything in any special Act the 
council of the City of Toronto shall consist of the mayor 

M.A. — 4 



50 SPKCIAL PROVISION FOE TORONTO. 

and four controllers to be elected by general vote, and 
three aldermen for each of the wards numbers 1 to 6 
inclusive and two aldermen for Ward Number 7 until its 
population, according to the municipal enumeration by 
the assessor, reaches 30,000, and after that three alder- 
men for that ward. In the event of a new division into 
wards of the said city under the provisions of this Act, 
this subsection shall become inoperative. 9 Edw. VII. c. 
73, s. 6, amended; 3 & 4 Geo. V. c. 43, s. 46 (7) ; 6 Geo. V. 
c. 39, s. 2. 

Dominion Census Governs. — So far as the composition of a city 
council depends on population, changes can only be made when the popu- 
lation varies as shewn by the Dominion census, s. 49, but this does not 
apply to the adoption of a Board of Control. See s. 210. 

Board of Control. — The council of a city having a population of 
less than 100,000 but more than 45,000 as determined by Dominion census, 
or under a by-law or by the assessor at the last enumeration, whichever is 
latest, s. 2 (m), may by by-law to be approved by the electors provide for 
a Board of Control or with the assent of the electors repeal any such 
by-law, s. 210. 

Aldermen are to be Elected by "WsltAs, but Election by 
General Vote is Optional. — In Toronto the election of aldermen 6y 
wards is fixed by s. 46 (7), and by s. 209, the Board of Control is a fixed 
institution, also controllers a;re really aldermen elected by general vote. 

The election of aldermen by general vote is optional in other cities* 
The system can only be adopted by a by-law which has received the 
assent of the electors, s. 46 (4), and once adopted cannot be repealed until 
at least five annual elections have been held under it, s. 46(3), except in 
the case of cities with population under 15,000, where a repealing by-law 
may be passed after two annual elections by a general vote. Repealing 
by-laws must receive the assent of the electors. 

While the council can introduce by-laws for the purpose of establish- 
ing or abolishing the system, one-fifth of the electors in cities having- a ' 
population of not more than 15,000 can by petition compel the council to 
submit a by-law to abolish the method of electing aldermen by general 
vote, and in other cities 400 electors in like manner can compel the 
council either to submit by-laws to either establish or abolish the system 
as the case may be. On receipt of any such petition the discretion of the 
council is at once taken away and it is under an imperative duty to 
submit the by-law petitioned for. The legal questions arising from the 
provisions of s. 46 (6) as to petitions and their effect, have been so 
frequently considered by the Courts in dealing with similar provisions 
respecting local option by-laws that the law is clear and well settled. 
For discussion, see Part XI., Quashing By-laws. 

Number of Aldermen. — Three for each ward, s. 46 (la) , or two 
for each ward if the council so provides by by-law, s. 46 (lb), with the 
assent of the electors, s. 46 (4). Such a by-law' cannot be repealed till 
after two annual elections. 

Where aldermen are elected by general vote in cities having a popu- 
lation of not more than 15,000, the number is one alderman for every 
thousand, s. 46 (Ic), and in other cities the same as if they were elected 
by wards, that is 3 or 2, if provided by by-law, s. 46 (la) and (lb). 



COMPOSITION 01' TOWN COUNCILS. 51 

Towns. 

47. — (1) The council of a town in unorganized terri- 
tory shall be composed of a mayor and six councillors to 
be elected by general vote. 2 Edw. VII. c. 30, s. 4. 

(2) If the town has a population of not less than 
5,000 the council may provide that the council shall be 
composed of a mayor and nine councillors to be elected 
by general vote. 9 Edw. VII. c. 73, s. 3 (1), amended; , 
3 & 4 Geo. V. c. 43, s. 47. 

48. — (1) The council of a town not in unorganized 
territory having a population of more than 5,000 shall 
be composed of a mayor, a reeve, as many deputy reeves 
as the town is entitled to and three councillors for each 
ward where there are less than five wards, or two coun- 
cillors for each ward where there are five or more wards. 
3 Edw. VII. c. 19, s. 71 (1), first part amended. 

(2) Where there are less than five wards the council 
on the petition of not less than 100 municipal electors 
shall provide that the number of councillors shall be two 
for each ward, or may without petition provide that the 
number of councillors shall be one for every 1,000 of the 
population to be elected by general vote, or if the popu- 
lation is less than 6,000 that the number of councillors 
shaU be six to be elected by general vote. 3 Edw. VII. 
c. 19, s. 71 (1), last part, and s. 71a (3), part amended. 

(3) Where the town has a population of not more 
than 5,000 the council shall be composed of a mayor, a 
reeve, as many deputy reeves as the town is entitled to 
and 

(a) Six councillors to be elected by general vote ; or 

(&) Where the council so provides one councillor for 
each ward and the remaining councillors to com- 
plete; the full number of six to be elected by gen- 
eral vote. 3 Edw. VII. c. 19, s. 71a (1-2), amended. 

(4) A by-law for any of the purposes mentioned in 
subsection 2 of section 47 or subsection 2 or clause (&) 



52 CHANGING COMPOSITION OF TOWN COUNCILS. 

of subsection 3 of this section shall not be repealed until 
two annual elections have been held under it, and a by- 
law for the purpose mentioned in clause (&) of subsection 
3 shall not be passed until two annual elections under 
clause (a) have been held. 3 Edw. VII. c. 19, s. 71a (4) 
and (7), last part amended. 

(5) A by-IaAv for any of the purposes mentioned in 
subsection 2 of section 47 or in subsections 2 and 3 of this 
section, and a by-law repealing any such by-law shall be 
passed not later in the year than the first day of Novem- 
ber and shall not be passed unless it has received the 
assent of the municipal electors. 3 Edw. VII. c. 19, s. 71a 
(6), amended. 

(6) Every such by-law, including a repealing by-law, 
shall take effect at and for the purposes of the annual 
election next after the passing of it. 3 Edw. VII. c. 19, 
s. 71a (9). 

(7) Subject to subsections 2 and 4, where a petition of 
not less than one-fifth of the municipal electors is pre- 
sented on or before the first day of November in any year 
praying for the passing of a by-law for any of the pur- 
poses mentioned in this section or for repealing any such 
by-law, except a by-law reducing the number of council- 
lors to two for each ward, the council shall submit the 
question of making the proposed change to a vote of the 
municipal electors at, the next ensuing annual election 
and if the voting is in favour of the proposed change 
shall without delay pass a by-law in accordance with the 
prayer of the petition. 3 Edw. VII. c. 19, s. 71a (7), 
part amended. 

(8) Subject to s.-s. 4, where a by-law has been passed 
for reducing the number of councillors to two for each 
ward, the council, upon the petition of not less than 100 
resident municipal electors, presented not later in the 
year than the first day of November shall submit the 
question of repealing the by-law to a vote of the electors 
at the next ensuing annual election and if the voting is in 



COUNCILS OF VILLAGES AND TOWNSHIPS. 53 

favour of the repeal shall without delay pass a by-law in 
accordance with the prayer of the petition. 3 Edw. VII. 
c. 19, s. 71 (2), amended. 3-4 Geo. V. c. 43, s. 48, 1-8. 

49. For the purposes of sections 46 to 48 the popula- 
tion shall be determined by the latest census of Canada. 
3 Edw. VII. c. 19, s. 11a (10). 

Village's and Townships. 

50. The council of a village and the council of a town- 
ship shall consist of a reeve, as many. deputy reeves as 
the municipality is entitled to, and a sufficient number 
of councillors to make" up with the deputy reeves four 
in all, and they shall all be elected by general vote. 3 
Edw. VII. c. 19, ss. 72 and 73, amended. 

(2) The council of a township in unorganized terri- 
tory shall consist of a reeve and four councillors. 3-4 
Geo. V. c. 43, s. 50; see E. S. 0. 1897, c. 225, s. 2. 

Towns, Villages and Townships. 

51. — (1) A town not being a separated town, a village 
and a township, shall each be entitled where it has more 
than 1,000 and not more than 2,000 municipal electors to 
a first deputy reeve, or where it has more than 2,000 and 
not more than 3,000 municipal electors, to a first deputy 
reeve and a second deputy reeve, and where it has more 
than 3,000 municipal electors to a first deputy reeve, a 
second deputy reeve and a third deputy reeve. 6 Edw. 
VII. c, 35, s. 2, par. 1, amended. 

2. The number of municipal electors shall be deter- 
mined by the last revised voters ' list but in counting the 
names, the name of the same person shall not be counted 
more than once. New. 3-4 Geo. V. c. 43, s. 51, 1-2. 

How Councils are Composed. — Councils of towns are composed of : 

(1) A mayor or reeve in each case, ss. 47 and 48; 

(2) As many deputy reeves as the tovsrn is entitled to under s. 51 ; 

(3) Councillors, who are to be elected as follows : — 

(a) In unorganized territory by general vote in all cases, s. 47(1) ; 



54 EIvEOTION OF COUNCILS. 

(6) 1. In organized territory by wards in towns of more than 
5,000 population, s. 48 (1), but a change from the ward 
system to election by general vote can be affected by by- 
law passed with the assent of the electors: s. 48 (2) 
and (5) ; 

2. By a general vote in towns of not more than 5,000 popu- 
lation : s. 48 (3) ; but a change to a mixed system of 
electing one councillor for each ward and the remaining 
councillors to which the town is entitled by a general 
vote may be made by by-law passed with the assent of 
electors: s. 48 (3) and (5). 

Election by General Vote. — The mayor or reeve and deputy-reeves 
so far as their respective local municipalities are concerned, are really 
councillors elected by- general vote, who have certain functions and powers 
not possessed by ordinary councillors. The tendency in recent years is to 
increase the number of members of council elected by general vote, as for 
instance, by constituting boards of control in cities, controlhsrs being in 
effect aldermen elected- by general vote, having in addition special powers 
when acting with the mayor as a board. The same tendency is indicated 
by the provisions enabling the ward system to be wholly or partly 
abolished. The purpose aimed at seems to be to secure councillors who 
will represent the general interests of a municipality rather than ward 
representatives. 

Method of Changing System of Election, — Whatever system is 
adopted must remain in force for at least two annual elections : s. 48 (5) . 
In all cases where a change is authorized, one-fifth of the electors can, by 
petition, compel the council to submit a by-law for the purpose of chang- 
ing the system of electing councillors: s. 48 (7). In view of the similarity 
between the provisions of s. 48 (7) and the provisions respecting Local 
Option By-laws, a discussion of the questions respecting petitions, their 
form, authentication, presentation, etc., the duty of councils to act on the 
same and the means of compelling councils to act in case they refuse to 
do so, will be found below. 

Number of Councillors to be Elected. — The number of coun- 
cillors is fixed at six in towns in unorganized territory, but where such 
towns have not less than 5,000 population, the number may be increased to 
nine by by-law passed with the assent of the electors : ss. 47 (2) and 48 (5). _ 
In towns in organized territory, w^here the population is more than 5,000, 
the number is three per ward, if there are less than five wards, and two 
per ward if there are five or more wards, but these numbers can be 
changed by by-law passed with the assent of the electors: s. 48 (5), as 
follows : — If there are less than five wards, the council can -be put in 
motion by a petition of not less than one hundred electors and must them 
introduce and submit a by-law that the number shall be two councillors 
per ward, or the council may, without petition, introduce a by-law making 
the number one per thousand of the population, or if the population is 
less than 6,000 the by-law shall fix: the number at six : 48 (2) . Where the 
population is under 5,000, the number of councillors is to be six: s. 48 (8). 

Last Dominion Census Governs. — By s. 49, no matter what the 
populatioln is, the changes in the constitution of councils of towns, so far 
as they are based on population, are governed by the population as shewn 
in the last Dominion census. If it were not for this provision, a special 
census could be taken: s. 2 (m). The last Dominion census must be 
accepted as correct. Britton, J.: R. ex rel. Sullivan v. Church, 1914, 
6 O. W. N. 116, 135 ; 26 O. W. R. 375. 

Deputy-Reeves. — So far as local municipalities are concerned deputy- 
reeves are really councillors elected by general vote. So far as the county 
council IS concerned, they are in effect representatives of their local muni- 
cipality. The county council contains no members elected by general vote 
throughout the county. Even the head is elected from among the repre- 
sentatives of the local municipalities which is in contrast with the method 



STATUS OF DBPUTT-EEEVE. 55 

followed in the case of other local heads of councils. The right to sit in a 
county council thus depends on the right to sit in the council of a local 
municipality. The only persons who can contest the right to sit in a 
county council are those named in s. 161, that is, electors in the local 
■ municipality which elected the mayor, reeve or deputy-reeve, whose right 
to sit is called in question, excepting only where the right to sit is Called 
in question on the ground that the local municipality has elected more 
deputy-reeves than it is entitled to, in which case any elector in the county 
can contest the right of the local municipality to such deputy-reeve. The 
principle seems to be that the right of representatives of a local munici- 
pality to sit in County Council shall only be contested by the electors they 
represent, but the question as to how many representatives a local munici- 
pality is entitled to under the Act, can be raised in proceedings under 
•Part IV. by any elector in the county. 

As no provision in that Act enables a local municipality to be repre- 
sented in proceedings under Part IV., the right of a local municipality to 
a deputy-reeve may be determined in proceedings under that part, between 
any elector in the county and the second or third deputy-reeve, as the 
case may be, and without notice to it or its being added as a party. 
This was held by Britton, J., in R. ex rel. Sullivan v. Church, 1914, 
6 O. W. N. 116, 26 O. W. R. 375. 

No Scrutiny to Determine Number under s. 51. — In R. ex rel. 
Sullivan . v. Church, supra, Britton, J., said : — 

" A scrutiny was entered upon before the Master. It seems clear 
to me that for the purpose of determining the right to a deputy-reeve, 
no .scrutiny is contemplated by the Act beyond that of seeing that 
the name of any elector is not counted more than once: s. 51 (2). 
' Determined ' in that sub-section must mean, in the first instance at 
least, determined by the council. Prima facie that determination shall 
stand. If it is wrong the onus of shewing error must be upon the 
attacking party. . 

" In the scrutiny before the Master evidence was given as to 
tenants who had moved away from town, persons who had died, and 
tenants who had changed their places of residence in the town. ' I 
reject that and come to the count, assuming that the determination of 
the council, if incorrect, must be so shewn by proper evidence, and 
that the count is subject to the limitation of s. 51 (2) . . . . 

" With J:he voters' list before the Court, verified as to the number 
of names and the not counting more than once, the onus is on the 
person attacking the list to prove his ease." 

Testing Right to Deputy-Beeve by Motion to Quash By-law 
for Holding Election. — The Master, in R. ex rel. Sharpe v. Beck, 1909, 
13 O. W. R. 457, 539, thought that the obvious course for a person who 
wished a declaration that Brampton was not entitled to a deputy-reeve 
would be to move to quash the by-law passed in November for holding the 
election, and Britton, J., in . R. ex rel. Sullivan v. Church, 1914, 26 O. 
W. R. 375, 6 O. AV. N. 116, 365, intimated that this procedure might be 
followed. These remarks were ohiter. 

In R. ex rel. Sullivan v. Church, 1914, 26 O. W. R. 375, the question 
of the right- to a deputy reeve was determined without the Municipality 
being represented. 

Qualifications. 

52. — (1) Subject to s.-s. 6, no person shall be qualified 
to be elected a member of the council of a local munici- 
pality unless he 

(a) Resides in or within two miles of the municipality 
where it is situate in a county and in or within 



56 QUALIFICATIONS OP MEMBERS OP COUNCIL. 

five miles of the municipality where it is situate 
in unorganized territory. 3-4 Geo. V. c. 43, s. 52 
(1), part; 5 Geo. V. c. 34, s. 11. 

(&) Is a British subject; 

(c) Is a male of the full age of twenty-one years; 

(d) Is not disqualified under this or any other Act, 
and 

(e) In any municipality is at the. time of the election 
in actual occupation of a freehold estate rated in 
his own name or in the name of his wife on the 
last revised assessment roll of the municipality 
for at least $2,000, whether or not the same is 
encumbered, and of which he or she is the owner ; 
or , 

(/) Is or his wife is at the time of the election the 
owner or tenant of a freehold or leasehold or 
partly freehold and partly leasehold estate, legal, 
or equitable, or partly legal and partly equitable, 
in land assessed in his or her name on the last 
revised assessment roll of the municipality, if 
not iin unorganized territory, of at least the 
value according to such assessment roll over and 
^ above, in the case of an owner, all liens, charges 

and encumbrances thereon, of 

I. In a village, if freehold, $200; or if lease- 
hold, $400; 

II. In a township, if freehold, $400 ; or if lease- 
hold, $800; 

III. In a town, if freehold, $600 ; or if leaseholcl, 
$1,200; 

IV. In. a city, if freehold, $1,000; or if lease- 
hold, $2,000; 

Or if in unorganized territory. 



QUALIFICATIONS OF MEMBEES OF COUNCIL. 57 

V. In a township (except at the first election), 
if freehold, $100; or if leasehold, $200; 

VI. In a city or town, if freehold, $400; and if 
leasehold, $800. 

(2) A person who wonld have had the qualification 
prescribed by s.-s. 1, if he or his wife had continued to 
be the owner or tenant of land in respect of which his or 
her name was entered on the • last revised assessment 
roll down to and at the time of the election, if otherwise 
qualified, shall be qualified to be elected, notwithstanding 
that he or his wife has alienated the estate in the land for 
which he or she was assessed, or, if a leasehold estate, it 
has been determined by effluxion of time, surrender or 
otherwise between the date of the return of the assess- 
ment roll and the time of the election, if at the time of 
the election he is a resident of the municipality and he 
or his wife has at the time of the election an estate in 
other land of a sufficient assessed value, according to the 
last revised assessment roll, to qualify him for election 
under s.-s. 1 if he or she had been assessed for it. 

(3) S.-ss. 4 and 5 of s. 56 shall apply to the rating 
qualifications prescribed by this section. 

(4) Where territory has been annexed to an urban 
municipality, until an assessment roll for the munici- 
pality, including such territory, has been made and re- 
vised, it shall be sufficient for the purposes of this sec- 
tion if the assessment is upon the last revised assessment 
roll of the -municipality in which the territory, before its 
annexation, was situate, and for a sufficient amount to 
qualify hhn for election to the council of that munici- 
pality. 

(5) In this section "leasehold" and "leasehold 
estate" shall mean a tenancy for one year or more, or a 
tenancy from year to year. 3 Edw. VII. c. 19, s. 76; 6 
Edw. VII. c. 35, s. 5, amended. 

(6) Where the inhabitants of a township or locality 
in unorganized territory have become incorporated as a 



58 QUALIFICATION FOR TOWNSHIP IN UNORGANIZED TERRITORY. 

township or a union of townships, the only qualification 
necessary at the first election shall be that the person is 
a male of the full age of twenty-one years, a British sub- 
ject and a householder resident in the municipality. 
New. See R. S. 0. 1897, c. 225, s. 6. 

(7) If there are not at least two persons qualified to 
be elected for each seat in the council, no qualification 
beyond that of a municipal elector shall be necessary. 3 
Edw. VII. c. 19, s. 79, amended. 3 & 4 Geo. V. c. 43, s. 
52, 1-7. 

Comment on the history of this section, see R. ex. rel. Morton v. 
Roberts, 3 O. W. N. 1089 ; 22 O. W. R. 50 ; 26 O. L. R. 263. 

Four Qualifications Required. — The qualifications which must be 
possessed by a candidate at the time of election are: (1) residence; 
(2) citizenship; (3) full 'age;. (4) property qualification, and (5) there 
must be an absence of disqualification. 

Besidence. — What constitutes residence is an important question, 
not only as affecting the right to be a candidate but also as affecting the 
right to vote in the case of tenant, income' and farmers' son voters under 
s. 57. A full discussion will be found under s. 57, infra. 

Citizenship. — The law as to British nationality and the status of 
aliens was consolidated and amended by the British Nationality and Status 
of Alien Act, 1914, 4-5 Geo. V., c. 17. At the time the Act was drawn, it 
was contemplated that similar Acts would be passed by the Dominions, 
so that uniform provisions would be in force throughout the Empire. 
Accordingly the Dominion Parliament, by c. 44 of the Statutes of 1914, 
passed the British Nationality and Status of Aliens Act, which, with the 
necessary minor changes, is identical with the Imperial Act, and this Act 
now emJBodies the law on the subject. 

Who are British Subjects? — Section 1 of the British Nationality 
and Status of Aliens Act provides that the following persons shall be 
deemed to be natural born British subjects : — 

" (o) Any person born within His Majesty's Dominions and alle- 
giance ; and i 

" (6) Any person born out of His Majesty's Dominions," whose 
father was a British subject at the time of that person's birth 
and either was ■ born within His Majesty's allegiance or was a 
person to whom a certificate of naturalization had been granted ; 
and 

" (2) Any person born on board a British ship whether in 
foreign territorial waters or not : 

" Provided that the child of a British subject, whether that 
child was born before or after the passing of this Act. shall be 
deemed to have been born within His Majesty's allegiance if born in 
a place where by treaty, capitulation, grant, usage, sufiEerance, or 
other lav?ful means, His Majesty exercises jurisdiction over British 
subjects." 

Sec. 2 provides : — 

"A person born on board a foreign ship shall not be deemed to 
be a British subject by reason only that the ship was in British 
territorial waters at the time of his birth." 



WHO ABE BRITISH SUBJECTS'. ' 59 

Marriage or Sissolntion of Marriage as Determining Status. 

— Sec. 10 provides : — 

_ " The wife of a British subject shall be deemed to be a British 
subject and the wife of an alien shall be deemed to be an alien." 
Sec. 11 provides : — 

" A woman who, having been a British subject, has by or in 
consequence of her marriage become an alien, shall not, by reason 
only of the death of her husband or the dissolution of her marriage, 
cease to be an alien, and a woman who having been an alien, has by 
or in consequence of her marriage become a British subject, shall not, 
by reason only of the death of her husband or the dissolution of her 
marriage, cease to be a British subject." 

Status of Minor Children. — Sec. 12 provides : — 

" Where a person being a British subject ceases to be a British 
subject, whether by declaration of alienage or otherwise, every child 
of that person, being a minor, shall thereupon cease to be a British 
subject unless such child on that person ceasing to be a British 
subject does not become by the law of any other country naturalized 
in that country : Provided that where a widow who is a British sub- 
ject marries an alien, any child of hers by her former husband shall 
not, by reason only of her marriage, cease to be a British subject, 
whether he is residing outside His Majesty's dominions or not. 

" (2) Any child who has so ceased to be a British subject may, 
within one year after attaining his majority, make a declaration that 
he wishes to resume British nationality and shall thereupon again 
become a British subject." 

^ British Subjects by Naturalization. — Sec. 3 provides : — 

" A person to whom a certificate of naturalization is granted by 
the Secretary of State of Canada shall, subject to the provision of 
this Act, be entitled to all political and other rights, powers and 

- privileges, and be subject to all obligations, duties arid liabilities to 
which a natural born British subject is entitled or subject, and on 
and from the date of his naturalization have to all intents and pur- 
poses the status of a natural born British subject. 

" Sec. 28 provides that a certificate of naturalization issued under 
the Act or under the Imperial Act or under the corresponding Act 
of any Dominion, may be proved in any legal proceeding by the pro- 
duction of the original certificate or a certified copy." 

lioss of British Nationality. — ^The Act provides that British 
nationality shall be lost : 

(1) By foreign naturalization; 

(2) By declaration of alienage in certain eases of dual nationality; 

(3) Naturalized subjects may divest themselves of tbeir status as 
British subjects. 

Status of Aliens. — ^Sec. 17 provides that aliens may hold pro- 
perty, and alienate it in the same manner as British subjects, but provides 
that nothing in the section shall qualify the alien for any ofiice or for any 
municipal, parliamentary or other franchise. 

Status of Aliens under Repealed Acts. — The British Nationality 
and Status of Aliens Act repeals all previous statutes, but preserves the 
status of a person acquired under the repealed Acts and states the law 
applicable in the future. Lord Reading, in R. v. Albany, [1915] 3 K. B. 
716, 84 L. J. K. B. 2121, where it was held that a child born before the 
passing of the Act, in a foreign state, of a naturalized British subject, does 
not acquire the status of a British subject. The status of British nation- 
ality is a status which must be acquired by the individual himself. It is 
not a status which can be transmitted to him by his parent. It is there- 
fore necessary in every case to see whether status has been acquired either 
by the common law or under the provisions of some statute. Lush, J., in 
R. V. Albany, supra. 



60 PROOF OF NATIONALITT. 

Proof of Alienage or Citizenship. — No difficulty arises where a 
certificate of naturalization or a certificate of birth can be produced by 

an alien, but frequently it is desired to establish that certain persons are 
not British subjects, and it then becomes a diflicult question as to what 
evidence must be adduced in order to warrant the opinion that they are 
not British subjects. 

" In K. ex rel. Carroll v. Beckwith, 1854, 1 P. R. 278, Bobinson, O.J., 
said : — 

" We must presume the resident and assessed inhabitants of this 
country to be British subjects tiU something is shewn to the con- 
trary, from which the Court can determine that they are aliens," 
and he refused to accept as satisfactory evidence an affidavit stating that 
they were aliens, which did not give particular evidence to shew that 
they were aliens and how aliens as having been born in a certain place 
named out of the allegiance of the British Crown. 

In R. V. Hayes, 1904, 5 O. L. R. 202, the evidence shewed that E. 
was born in the United States, but his parents were born in Canada. 
There is no evidence that either he or his parents were ever naturalised 
in the United States. Street, J., held that the presumption arising was 
that R.'s parents were British subjects though residing in the United 
States, and that, therefore, R. was a British subject. 

Of the Full Age of 21 Years. — A person born on the 1st day of 

January, 1900, will be of the full age of 21 years at the first moment of 
the 31st day of December, 1921. 

1 Blackstone ; Commentaries, 413. 

The law will not take note of fractions of a day. 

Lester v. Grant, 180S, 15 Vesey 248. 

Must Qualifications Continue Throughout Term of Oifice; Effect 
of Requiring Declaration of Qualification; Effect of Enum- 
eration of Acts Rendering Seat Vacant. 

In R. ex rel. Morton v. Roberts, 1912, 26 O. L. R. 263, RiddeU, J., dis- 
cussed the question whether or not the property qualification must continue 
to exist after a candidate is elected, and takes his seat as a member of 
council, as follows : — 

" It is, however, to be observed that from almost the very 
earliest times the qualification has been expressed to be that entitling 
a person ' to be elected.' 

;'The first general Act (1838), 1 Vict. c. 21, providing for the 
election of certain officers — clerk, assessor, collector, etc. — has no 
qualification for the officer to be elected, although it has for the 
voter (ss. 2, 4) . 

"The Municipal Act of 1841, 4 & 5 Vict' c. 10, s. 11, provides 
that ' every person to be elected a member of a district council . . 
shall be seized and possessed,' etc;, etc. 

"Baldwin's Act, 12 Vict. c. 81, ss. 22, 57, 65, 83, contains the 
same language; the Act of 1858, 22 Vict. (stat. 1) c. 99, which is 
the same as (1859) C. S. U. C. c. 54, s. 70, also; and the termin- 
ology appears in the various amendments and re-enactment down to 
the present Act of 1903, s. 76. Sometimes, indeed, the provision is 
negative, as at present, and sometimes positive, as was the original 
form — but, whether it be ' no person but', or ' every person who,' it is 
always ' to be elected.' 

"Language quite different was used almost from the -first in 
respect of certain cases. It is true that in the Act 4 & 5 Vict. c. 10, 
it was provided (s. 12) that 'no person ... in Holy Orders 
or . . . Minister ... of any relisious sect . . nor any 

Judge . . . shall be - qualified to be elected a councillor . .- ;' 

but the language was soon changed. In the Act of 1849, by s. 132, 
it was enacted ' that no Judge . . . and no person having . . . 
any interest ... in any contract with ... the town- 
ship . .shall be qualified to be or be elected . . . councillor 
. . . And in Baldwin's Act, C. S. U. C. c. 54, s. 73, it is pro- 
vided that such person shall not be qualified ' to be a member of the 



SHOULD QUALIFICATION CONTINUE THKOUGH TERM. 61 

council of the corporation.' The same language continues down to 
the present Act, s. 80 (1). 

" And, in like manner, the Act of 1849, s. 112, provides that, if 
any member of a municipal council ' be declared a bankrupt . . . 
or shall compound by deed with his creditors, then . . . such 
person shall . . . immediately become disqualified, and shall cease 
to be a member of such municipal corporation . . . and the 
vacancy thereby created . . . filled as in the case of the natural 
death of such member. . . ." In the C. S. U. C. c. 54, s. 121, the 
occasions for the seat becoming vacant are increased in number, 
introducing amongst others ' assigns his property for the benefit of 
creditors' — and so it has continued to the present time (Consolidated 
Municipal Act, 1903, s. 207), appearing in substantially the same 
words in the nine or. ten re-enactments and amendments. 

" The difference in the terminology affords a very cogent argu- 
ment against the view that the Legislature intended the sale of the 
qualifying property to operate as an act ipso facto disqualifying the 
member, at all events after proper declaration of qualification made — 
had that been the intention, it is difiicult to see why the provision 
that an assignment for the benefit of his creditors is made specifically 
a ground of disqualification, without the addition ' a sale or assign- 
ment of qualifying property.' 

" So in the Act of 12 Vict. c. 81, s. 110, it is provided that the 
absence of the head of the council ' vacates ' the seat. 

" On the other hand, a consideration of the form of the oath or 
declaration affords a strong argument that the ownership of the 
property qualification must continue — at all events until the outh ov 
declaration was made. . . . 

"From a very early period it has been a statutory requirement 
that a councillor, etc., should make a declaration (or take an oath). 
The Act of 1838 provides for a promissory oath, and it was to be 
made (ss. 9, 36) within twenty days of being notified of election, 
upon penalty of a fine of £5. But the Act of 1841 contained a provi- 
sion ' that no person elected a councillor . . . shall bi^ capable 
of acting as such until he shall have taken and subscribed' the 
statutory oath — and he was given (s. 16) ten days after notice of 
his election to take this oath, oth|rwise he was cleeu<ed to have 
refused the office, and was liable to a fine — his office was deemed 
vacant and a new election had. The oath is not only promissory 
(s. 15), but also 'that I am seized and possessed, to my own use, of 
lands,' etc., and that such ' lands are within the district of . . . 
and are of the real value of £300,' etc., etc. The Baldwin Act, 12 Yict. 
c. 81, provides (s. 129), 'that every person who shall be elected . . . 
to any office which requires a qualification of property . . . shall, 
before he shall enter into the duties of his office, take and subscribe 
an oath or affirmation to the effect following, that is to say : ' I, A. B., 
do swear . . . thaj; I am truly and bona fide seized tb my own 
use and benefit of such an estate (specifying it) as doth qualify me to 
act in the office of (naming it) ... according to the true 
intent and meaning of a certain Act of Parliament,' etc., etc. Note 
that in these earliest qualification oaths the present tense is used in 
speaking of the ownership, and also (in 12 Vict.) that the ownership 
of the estate doth qualify to act in the office. 

"The language in 22 Vict. (stat. 1) c. 99, s. 175, is 'before 
he . . . enters on his duties ... ;' and the declaration (a 
solemn declaration now being substit^ted for an oath) is still, ' I am 
truly and lonai fide seized . . . does qualify me to act in the 
office,' etc. 

"The statute 29 & 30 Vict. c. 51, S. 178, makes no change from 
the language of the Consolidated Statute— the Act of 1873, 36 ^'ict. 
c. 48, s. 211, brings in the form still in use — ' have and had to my own 
use and benefit ... as proprietor . . at the time of my 

election to the office of . . .' does qualify me to act . . . pre- 
cisely the same as the form in the statute of 1903, s. 311 (the word 
'proprietor' being used instead of 'owner'), but without the addition 
made by (1906), 6 Edw. VII., c. 34, s. 10. 



63 EFFECT OF DECLARATION OF QUALIPICATIOHT. 

" The statute, in my view, lays down three prerequisites to a de 
jure occupation of the office (I do not pause to inquire as to others) : 
(1) possession of property qualifications ; (2) election by acclama- 
tion or otherwise; (3) making the declaration prescribed. Absence 
of any one of these will prevent the seat being filled de jure— 
absence of one or all will not, of course, prevent it being filled de facto. 
" Where the statute requires a prescribed oath, of office before 
any person elected ' Shall act therein,' a person cannot justify as such 
officer unless he has taken an oath in substantial, not necessarily 
literal, compliance with the law :' Dillon on Municipal Corporations, 
5th ed., s. 395, and American cases cited in iiote 1, at bottom of 
p. 680. 

"In The King v. Swyer (1830), 10 B. & O. 486, the capital 
burgesses and common council of Shafton were authorized to elect 
one of the burgesses each year to be mayor. The charter provided 
that ' he who . . . shall be elected . . . mayor . . .. before he 
be admitted to execute that office, or in any way to intermeddle in 
the same office, shall . . . take ... all the oaths by the 
laws . . . appointed . . . and that after such oath so taken, 
he can and may execute the office of . . . mayor . . .' Lord 
Tenterden, C.J. (p. 491) : 'A party becomes mayor not merely by 
reason of his being elected, but of being sworn into office.' Bayley, J. 
(pp. 491, 492) : 'By the clause authorizing the election of a mayor, 
the capital burgesses are to elect and nominate one of the burgesses to 
be mayor ; and he, before he executes his office, is to be sworn in. 
He becomes the head of the corporation, not when he is elected and 
nominated, but when he is sworn in.' It will be seen that no point 
is made of the clause in the charter that ' after such oath so taken, 
he can and may execute the office of . . . mayor,' which is the 
only point of differentiation between the Shafton chartei" and our 
statute in that regard. 

" In The King v. Mayor, etc., of Winchester (1837) , 7 A. & E. 
215, the language of the statutes (9 Geo. IV., c. 17, ss. 2, 4 and 5, 
and 5 and 6 Wm. IV., c. 76, s. 50), is a little different, but not 
substantially so — and Lord Denman, O.J. (p. 221), clearly shews that 
it is the making of the declaration that constitutes the acceptance of 
the office. See also per Littledale, J., at p. 222. 

" In a case under our rfwn statute, upon language identical with 
that in the present statute, Cameron, J. (aferwards Sir Matthew 
Cameron, C.J.), said: 'I am of opinion that until a person elected a 
member of a municipal corporation has made the declaration of 
qualification prescribed by the 265th section of c. 174, K. S. O. 1877, 
he has no right to exercise or discharge the functions pertaining to the 
office:' R. ex rel. Clancy v. St. Jean (1881), 46 U. C. K. 77, at 
p. 81. On p. 81 the learned Judge continues : ' I think there can be 
no doubt that this declaration is an essential prerequisite to the dis- 
charge of the duties of the office of alderman.' In the case of K. ex 
rel. Clancy v. Conway (1881), 46 IJ. C. R. 85, at p. 86, the same 
learned Judge gave (in a certain event, which wiU be considered 
later) leave to file an information in the nature of a quo warranto, 
' on the ground that without making the declaration of qualification 
he (Conway) illegally exercises. the franchises of the office.' 

"Such cases as United States v. Bradley (1836), 10 Peters 343, 
are quite different, as they determine only that an appointment in the 
nomination of the President, upon confirmation by the Senate of the 
United States, becomes an absolute appointment, vesting the office in 
the nominee upon appointment by the President and confirmation by 
the Senate, although the nominee has not given the bond which a 
statute requires him to give for the security of the Government. Com- 
pare United States Bank v. Dundridge (1827), 12 Wheat, 64." 

Election of AVomen to Office VThere Not Specially Enabled to 

Act— The Municipal Corporations Act, 1882, 45 & 46 Vict. c. 50, s. 11, 
provides that a person is not qualified to be elected nor to be- a councillor 
unless possessed of certain qualifications. This section gave rise to the 
famous case: Beresford-Hope v. Lady Sandhurst, 1889, 23 Q. B. D. 79; 



MEANING 0]?' ACTUAL OOCTIPATION. 63 

58 L. J. Q. B. 318, in which it was held that " person " did not include 
women, and that votes given for a woman were to be held as if they had 
never been given at all, and also to the case De Sousa v. Cobden, 1891, 1 
Q. B. 687; 60 L. J. Q. B. 33 O. A., in which Lord Esher thought that 
women had such a total lack of status to be elected that the form of elect- 
ing one could not be called an election at all. 

Sub-section (d), Some Statutory Disqualifications: — 

1. Sec. 53: Numerous disqualifications on account of bias. 

2. Sec. 152 : Conviction for a criminal offence, insolvency, absence. 

3. Sec. 180 : Corrupt practices. 

4. Sec. 302 (5) : Misapplication of sinking fund. 

5. Sec. 319 (3) : Illegal borrowing. 

6. See rule Disqualification at common law, under s. 53. 

Property Qnalification. — The qualification, partly freehold and 
partly leasehold, is satisfied by half the amount being -freehold and half 
leasehold : R. ex rel. Burnham v. Hagerman, 31 O., R. 636. Title by posses- 
sion confirmed by conveyance after election is a sufficient qualification : Hid. 

As Owner or Tenant. — See R. ex rel. Harding v. Bennett, 27 O. R. 
314, see R. els rel. O'Shea v. Letherby, 16 O. L. R. 581, and notes to ss. 
395 (6) and 396 (e) below. 

At the Time of the Election. — The election commences with the 
nomination. 

The candidate must have the qualifications on that day. 
See K. ex rel. Adamson v. Boyd, 4 iP. R. 204. 

In Actual Occupation. — This does not mean exclusive occupation. 
Each of partners jointly assessed may be in actual possession. 

R. ex rel. Harding v. Bennett, 27 O. R. 314 ; R. ex rel. Joanlsse v. 
Mason, 28 O. R. 495. 

The English authorities as to what constitutes actual occupation under 
the Poor Law are not to be applied to the Ontario Act. Per Street, J., ibid. 

Having control of the freehold and right to possession is " actual oc- 
cupation " within the meaning of section : R. ex rel. Milligan v. Harrison, 
16 O. L. R. 457. 

R. ex rel. Sharpe v. Beck; 18 O. W. R. 457, 539. 

Having agreed to sell equity of redemption will not disqualify. Ibid. 

Rated on the Last Revised Assessment Roll. 

Where a list under special authority was prepared before 31st Dec. for, 
and to take effect In the next year and not before, it was not the last list 
for an election which commenced by nominations in Dec. 

R. ex rel. Clancey v. Mcintosh, 46 U. C. R. 98. 

Under a similar provision in 14 & 15 tf. C. 109 Seh. "A'' par. 11, 
Robinson, C.J., held that property owned by a candidate but not men- 
tioned in the assessment roll cannot be made available as a qualification. 

R. ex rel. Carroll v. Beckwith, 1 P. R. 276. 

See also R. ex rel. Metcalfe v. Smart, 10 U. C. R. 89, and R. ex rel. 
Langdon v. Baby, 2 C. L. Ch. 130. 

As to the binding nature of the assessment roll see the Assessment Act, 
R. S. O. 1914, c. 195, s. 70, and note remarks of Armour, J. 

In R. ex rel. Hamilton v. Piper, where P. was entered on the assess- 
ment roll in an irregular manner. The roll was held conclusive. 

The roll is conclusive as to the rating of those mentioned in it. R. ex 
rel. Fluett v. Semandie, 5 P. R. 19 ; R. ex rel. Hamilton v. Piper, 8 P. R. 
225. 

Irregularities in Assessment Roll. — There are several cases where 
the effects of deviations from the prescribed forms of the Statute in assess- 
ments are considered. 



64 WHO IS AN " OWNER." 

Applegarth v. Graham, 7 U. C. O. P. 171 ; K. ex rel. McGregor v. Ker, 
7 U. 0. L. P. 67 ; De Balquiere v. Becker, 8 U. C. O. P. 167 ; Laughten- 
borougli V. McLean, 14 U. C. 0. P. 175 ; R. ex rel. Lachford v. Frizell, 6 P. 
R. 12. 

The requirements of the Assessment Act, R. S. 0. 1914, c. 195, as to the 
roll are in some respects directory only and so long as the candidate is rated 
in the roll an error in describing his estate is not necessarily fatal to !iis 
qualifications. 

R. ex rel. Carroll v. Beckwith, 1 P. R. 276. 

Joint Assessments. — See s. 56, s.-ss. 4 & 5. 

As far back as 1861 these sections had been held to apply to the quali- 
fication to be elected. 

R. ex rel. McGregor v. Ker, 7 U. C. L. J. O. S. 67, and see R. ex rel. 
Harding v. Bennett, 27 O. R. 314. 

The rating of a husband is respect of property owned by his wife as 
provided by the Assessment Act, R. S. O. 1914, c. 195, s. 37, s.-s. 11, is not 
a joint rating, per Meredith, G.J, 

R. ex rel. Milligan v. Harrison, 16 O. L. R. at 479. 

As between themselves joint tenants may agree that the whole amount 
of the assessment may be charged to one, but this will not allow that one to 
claim the whole amount at which he stands jointly rated with his co-tenant 
in the roll. 

R. ex rel. Dexter v. Gowan, 1 P. R. 104. 

^Vhether or not the same is Encumbered. — Even before these 
words were inserted encumbrances were not considered under this, sub- 
section. 

R. ex rel. Flater v. Von Velson, 5 P. R. 319 ; R. ex rel. Philbrick v! 
Smart, 5 P. R. 323 ; R. ex rel. Ferris v. Spect, 28 O. R. 486. 

Of ivliich lie or she is the ow^ner. — ^See notes to s. 5. 

Prior to R. S. O. 1897 ( ?) c. 184, s. 73, the language of the correspondr 
iug section was " has to his own use and benefit in his own right or in the 
right of his wife.' 

R. ex rel. Felitz v. Howland, 11 P. R. 264. 

Peaceable and undisturbed possession for 14 years, paying no rent and 
giving no acknowledgment of title, held sufBcient. 

R. ex rel. Burnham v. Sharpe, 31 O. R. 636; R. ex rel. Martin v. 
Moir, 7 O. W. R. 300 ; R. ex rel. Snider v. Richardson, 3 O. W. R. 276 ; 
R. ex rel. Ingoldsby v. S'peers. 

An administrator cannot qualify even if the property is assessed in his 
own name. 

R. ex rel. Stock v. Davis, 3 L. J. 128. 

It is not enough to be assessed. The candidate or his wife must 
actually be the owner. The mere fact of being rated as owner Is not 
conclusive. See under similar provisions. 

R. ex rel. Telfer v. Allan, 1 P. R. 214. 

An Indian agent occupying a lot on the Reserve for which he is as- 
sessed has no estate whatever but a mere possession which might be de- 
termined in an hour. 

R. ex rel. Lachford v. Frizell, 6 P. R. 12. 

Having agreed to sell equity of redemption will not disqualify. Ibid. 

R. ex rel. Sharpe v. Beck, 13 O. W, R. 457. 
/f^ t™stee cannot qualify under this sub-section but might under s.-s. 

R. ex rel. Morton v. Roberts, 26 O. L. R. 263. 

Disqualification. 

53. — (1) The following shall not be eligible to be 
elected a member of a council or be entitled to sit or vote 
therein : 



PERSONS DISQUALIFIED FOE COUNCIL. 65 

(a) A judge of any court; 

(fe) A gaoler or a keeper of a lock-up; 

(c) A sheriff, deputy sheriff or sheriff's bailiff; 

{d) A'high bailiff or chief constable of a city or town ; 

(e) An assessment commissioner, assessor, a col- 
lector of taxes, a treasurer, a clerk, or any other 
officer, employee or servant of the corporation of 
a municipality ; 

(/) A clerk or bailiff of a division court; 

{g) A crown attorney or a clerk of the peace; 

(h) A registrar or a deputy registrar of deeds; 

(i) A master or a local master of titles; 

(j) A member of a public or separate school hoard or 
of a board of education, of a city, town or village, 
or a member of a high school board, unless he has 
at least ten days before the day of nomination 
filed his resignation with the Secretary of the 
Board ; 

(k) A person licensed to sell spirituous liquor by 
retail ; 

(l) A license commissioner or an inspector of 
licenses ; 

(m) A police magistrate; 

(n) A clerk of a county or district court; 

(a) A deputy clerk of the Crown or a local registrar ; 

(p) A person having himself or by or with or through 
another an interest in any contract with the cor- 
poration or with any commission or person act- 
ing for the corporation or in any contract for the 
supply of goods or materials to a contractor for 

M.A. — 5 



66 PERSONS DISQUAI<IFIED FOB COUNCIL. 

work for which the corporation pays or is liable 
directly or indirectly to pay, or which is subject 
to the control or supervision of the council or of 
an officer of the corporation, or who has an unsat- 
isfied claim for such goods or materials; 

(q) A person who either himself or by or with or 
through another has any claim, action or pro- 
ceeding against the corporation; 

(r) A person who, either himself or by or with or 
through another is counsel or solicitor in the 
prosecution of any claim, action or proceeding 
against the corporation or in opposing or de- 
fending any claim, action or proceeding by the 
corporation. 3 Edw. VII. c. 19, s. 80 (1) ; 6 Edw. 
VII. c. 34, s. 3; 8 Edw. VII. c. 48, s. 2; 10 Edw. 
VII. c. 85, s. 2, amended. 

(s) A person who at the time of the election is liable 
for any arrears of taxes to the corporation of the 
municipality. New. 

(t) A person against the land in respect of which he 
qualifies there are at the time of the election any 
arrears of taxes. New. See 9 Edw. VII. c 73; 
3 & 4 G«o. V. c 43, s. 53 (1). 

strict Construction. — ^Disqualifying clauses must be construed 
strictly and according to their very words and their qualifying effect cannot 
be extended by implication. Per Armour, J. 

E. ex rel. Brine v. Booth, 3 O. R. at 147. Citing Begina v. Oldham, 
L. E. 4 Q. B. 290 ; Lewis v. Carr, L. R. 1 Ex. D. 484 ; LeFeuvrie v. Lan-. 
kester, 3 El. & Bl. 530. (This case has been criticized). 

Doubtful Construction. — If the construction of the statute is doubt- 
ful the sitting member should not be unseated. 

B. ex rel. Chambers v. Allison, 1 U. C. L. J. N. S. 244 ; R. ex rel. Ford 
V. Cottingham, 1 U. O. L. J. N. S. 214. 

Disqualification at Common liaw — A member of a council is dis- 
qualified from voting in the council upon any subject in which he has a 
personal or pecuniary interest distinct from that which he has as a rate- 
payer in common with other ratepayers. 

In re L'Abbe and Corporation of Blind River, 7 O. L. R. 230. 

E.g., a mortgage of premises likely to be affected by a by-law to reduce 
the number of licenses, ibid. 

The interest or bias which disqualifies may be a direct monetary interest 
but may also be substantial interest' other than pecuniary and then the 



EFFECT OF DISQUALIFICATION. 67 

question arises as to whether there is a real likelihood of bias ... it ap- 
pears to be a question of fact in each instance. Ibid. p. 234, and see The 
King V. Trustees of Sunderland, 1901, 2 K. B. 357. 

See also, In re Vashon & Township of E. Hawkesbury, 30 C. P. 194 ; 
Re Baird and VUlage of Almonte, 41 U, C. R. 415. 

Effect ot Disqualification. — S. 153 infra, provides : — 

. . . If a member of a council forfeits his seat or his right to it or 
becomes disqualified to hold it and does not forthwith resign his seat pro- 
ceedings may be taken under ss. 160 to 179 to declare it vacant. 

Once the disqualification arises the result cannot be avoided by remov- 
ing the disqualification. 

By s. 46, s.-s. 1 of the Local Grovernment Act, 1894, "A person shall be 
disqualified for . ., . being a member . . . of a board of guardians if 
he ... is concerned in any bargain or contract entered into with the 
. . . board ..." and by s.-s. 7, " Where a member of a . . 
board of guardians becomes disqualified for holding oflice . . . the . . . 
board shall forthwith declare the office to be vacant . . . and the ofiice 
shall thereupon become vacant." 

A member of a board claimed a small commission for collecting rents. 

Alverstone, O.J., said : " Nothing is said in s.-s. 1 to the effect that 
during such time as he had an interest in the contract he should be dis- 
qualified. I also think that the language of s.-s. 7 is inconsistent with the 
suggestion that when the contract terminated the disqualification ceased." 

Sterling J. said : " I have been looking at the mischief aimed at ; it is 
to prevent people from benefiting by contracts which they have a certain 
amount of control in allotting. If the contention of council for the prose- 
cutor was right this might happen ; a guardian might agree to sell the 
board of which he was a member or to buy from the board or to enter into 
some other contract which might be performed in a day. If that was so 
he might become disqualified from being a member ; but before the board of 
guardians could declare his oflice vacant the contract would be at an end 
and he might repeat that operation- day by day." 

R. V. Rowlands, 75 L. J. K. B. 501. 

The statute under consideration in R. v. Rowlands provided machinery 
for declaring the ofiice vacant differing from that provided in ss. 160 to 178 
infra. This does not affect the principle for in that case the disqualification 
was at an end before the machinery provided was set in motion. 

In Fletcher v. Hudson, 51 L. J. Q. B. 48 (C.A.). " 

The language of the statute was : "Any member who is concerned in 
any . . . contract . . . shall cease to be a member and his seat 
shall become vacant." This was held to be equivalent to the language of 
the St. considered in the Rowlands case, supra, and it was held that when 
the contract was at an end the defendant could not continue to act as 
member of the council. 

Any Other Officer. — The words of the old statute Con. Stat. TJ. C. C. 
54, s. 73, are: "No officer of any municipality shall be qualified to be a 
member of the council of the corporation," that is, an officer was disqualified 
from being a member of the council of the corporation of which he was an 
officer. 

Under the present section any of the officers mentioned are disqualified 
from being members of the council of any municipal corporation. 

R. ex rel. Boyes v. Detlor, 4 P. R. 195. 

Road commissioner paid by commission some unpaid at tke time of- 
election held disqualified. 

R. ex rel. McMuUen v. DeLisle, 8 L. J. 291. 

Road commissioner for 1861 was not ineligible to be elected. 

R. ex rel. Armon v. Caste, 8 L, J. 290. 

But now see s. 53, s.-s. 2 (e). 

A mayor is not an officer within the meaning of this sub-section so 
that the mayor for 1858 was held eligible for mayor for 1859. 

In re Sawers v. Srevenson, 5 L. J. 42. 

Overseer of highways disqualified. 

R. ex rel. Richmond v. Tegart, 7 L. J. 128. 



68 MEMBEES OF SCHOOI, BOARD, ETC. 

At the Time of Election, — ^The election commences on nomination 
day. The following day is but an adjournment of the election. 

A candidate who paid the arrear of taxes for which he was liable after, 
the nomination and before the election was disqualified as a candidate. 

R. ex rel. Adamson v. Boyd, 4 P. R. at '213. 

School Board. — ^A member of a School Board whose term is immedi- 
ately about to end and will end before his term as a member of a council 
will begin, if he is elected must nevertheless resign as a member of the 
School Board before nomination as a member of a council, and if he does 
not his election will be set aside. 

R. ex rel. Jamieson v. Cook, 9 O. L. R. 466 ; Rex ex rel. Zimmerman v 
Steele, 5 O. L. R. 565 ; R. ex rel. O'Donnell v. Broomfield, 5 O. L. R. 596 ; 
R. ex rel. Robinson v. McCarty. 5 O. L. R. Q^iS. 

Note changes in the Act since the cases in 5 O. L. R. were decided. 
(These cases might be omitted). 

See s.-s. 4 as to effect of resignation of member 

R. ex rel. Adamson v. Boyd, 4 P. R. 204 ; R. ex rel. Rolls v. Beard 3 
P. R. 357. 

The term of members of Rural Districts exjire on the date of the 
annual meeting at which fheir successors are appointed. 

Pub. School Act, R. S. O. 1914, c. 266, s. 50. 

Urban School Boards. — Election may be first Wednesday or at the 
same time as municipal elections. 

R. S. O. 1914, c. 266, ss. 60 and 61. 

Separate School Boards — Board of Education — ^Member of 
High School Board. — Note when terms of members of these Boards 
expire. 

Iiicense. — Transfer bona fide on eve of election defendant entitled to 
hold seat. R. ex rel. Crozier v. Taylor, 6 L. J. 60. 

Sale of interest but no change of possession defendant disqualified. 

R. ex rel. Flanagan v. McMahon, 7 L. J. 155. 

A transfer of a license though assented to by the License Commissioners 
is a void and feeble proceeding except in the cases authorized by law (see 
Liquor License Act, R. S. O. c. 215, s. 21), and the would-be transferror 
is disqualified. 

R. ex rel. Brine v. Booth, 3 O. R. at 147. 

The Court can review the action of the commissioners in sanctioning 
the transfer for the purpose of ascertaining whether the case is within the 
disqualifying clause or not, ibid. 

See Clancy v. Conway, 46 U. O. R. 85. 

An unlicensed person may be liable to penalties for breach of the 
Liquor License Act yet he is not disqualified under this clause. 

R. ex rel. Clancy v. Conway, 46 U. O. R. 85. 

An Interest in. — ^The Public Health Act, 1875, s. 193, provides: — 

Officers or servants appointed or employed under this Act by the local 
authority shall not in any wise be governed or interested in any bargain or 
contract made with such authority. ..." 

Contracts between the local authority and contractors stipulated that 
the defendant, the town surveyor of the local authority, should take out the 
quantities for the works and that the contractors should pay him a per- 
centage. The work was not part of the ordinary duties of- the surveyor. 
Held, that the surveyor was interested in the contracts within the meaning 
of the section. 

Whitely v. Barley, 57 L. J. Q. B. 143. 

Lord Esher said : " It has been argued that an officer or servant of a 
local authority cannot be interested in a contract with the authority unless 
he can sue in his own name. 1 do not agree with that argument. I think 
the question in these cases is not whether the office- or servant can recover 
the money in his own name, but whether he is really concerned or interested 



PERSONS INTERESTED IN CONTRACTS. 69 

in the bargain or contract. The question is whether he could get anything 
Otherwise than by the existence of the contracts." Ibid. 

Interested in. — A municipal oiBcial who without concert or previous 
arrangement supplies materials to an undertaker who uses them in the 
extension of a contract with a municipal body is not " directly or indirectly 
or , . . knowingly engaged or interested in " such contract. 

Lord Loreburn said : " But their lordships do not think that he is liable 
merely for supplying materials to the contractor who chooses to buy them 
from him without any sort of understanding or arrangement that he should 
do so. 

Morton v. Taylor, 75 L. J. P. 0. 79. (Appeal from N.- S. W.) 

N.B. The word knowingly. 

Interest. — ^When does the interest cease? 

In Cox V. Truscott, supra, it was held that the mere existence of a debt 
for goods supplied does not constitute a disqualifying interest. 

This discretion has been criticized adversely. 

O'CarroU v. Hastings, 1905, 2 I. R. 590. 

This question does not arise under the Ontario Act in view of s. 53, 
s.-s. 1 (p). 

A person advanced money to a contractor and took an assignment as 
security for repayment of the advance. He was held to be interested in the 
contract within the meaning of Metropolis Local Management Act, 1855, B. 
54 (1) which provided " In case any member ... in any manner be 
concerned or interested in any contract ... he shall cease to be such 
member. . . ." 

Hannings v. Williamson, 52 L. J. Q. B. 416. 

Directly or Indirectly. — ^The insertion or omission of these words 
does not make a substantial difference. 

See Todd v. Robinson, 54 L. J. Q. B. 47. 

Contract. — ^The mayor and some councillors as members of a citizens' 
league had entered into a contract with the corporation under an indemnity 
given by the league as to part of the costs incurred in upholding the local 
option by-law of the town up to $100. The mayor was liable for $19.66 of 
the amount. He was held disqualified 

The principle " de minimis nou curat lex " has no a/pplication in supra 
case. 

Nell V. Longbottom, 1894, 1 Q. B. 767. 

A contract may be a -very small one. That however is a matter into 
which a Court cannot enter as the_ legislature has not entrusted to it any 
dispensing power and probably considered that the maxim of obsta principiis 
should apply to cases of this kind. Ibid. 

A person who is discharged in equity from a contract is not disqualified 
merely because he has not obtained a formal discharge. 

R. ex rel. Hill v. Bretts, 4 P. R. 113. 

An agent of an insurance company which , insured city buildings paid by 
salary and commissions for effecting insurance on city buildings both before 
and after the election is not disqualified. 

R. ex rel. Bugg v. Smith, 1 C. L. J. 129. 

A 'baker had a contract to supply bread to the city. After the baker 
was elected alderman his hired man obtained the contract and supplied 
bread which he purchased from the baker to the city and the bread was 
conve.ved to the city in the baker's delivery rigs. The evidence shewed 
that in fact the hired man purchased the bread as any other customer 
might. The baker was held not disqualified but neither party was allowed 

R. ex rel. Piddington v. Rlddell, 4 P. R. 80. 

A tender to supply goods to a corporation may merely be an offer 
which can be withdrawn at any time so that after withdrawal there is no 
existing contract. 

On the other hand an accepted tender may be a binding contract 
which would disqualify unless the corporation released the tenderer. In 



70 PERSONS INTEEESTBD IN CONTRACTS. 

either case if there is a balance owing by the corporation in respect of 
goods supplied the tenderer is disqualified. 

R. ex rel. MeGuire v. Birkett, 21 O. R. 162. 

Note, constitutional question raised in this case as to right of Provincial 
Legislature to create a court to try controverted municipal elections. 

Note, as affecting relators' right to seat resolutions of council re dis- 
qualification. 

The Public Health Act, 1875, Schedule ii, provides by rule 64 that any 
member of a local board who " in any manner is concerned in any bargain 
or contract entei^ed into by such board," shall cease to be such member. 

The defendant a member of a local board did part of the work for a 
contractor which the latter had contracted with the board to do: — ^Held, 
that the defendant ceased to be a member of the board. 

Lindley, L.J. said : Now the words " In any manner concerned in any 
bargain or contract " are more or less lax and cases may easily be put in 
which a person might be said to be concerned in a contract who yet was 
not " concerned " in ihe contract. Within the meaning of the enactment. 
In order to interpret words which have no very definite meaning and per- 
haps might have been employed for that very reason, we must look at the 
object of the enactment and the. object here obviously was to prevent a con- 
fiict between interest and duty in the case of members of local boards. 

Nutton V. Wilson, 1889, 58 L. J. Q. B. 443. 

Qucure. Would it be well to give the facts in this case as to the work 
actually done — the supplying of a few boards to a contractor? 

Trifling amount in value does not avail to relieve from disqualification. 

R. V. Rowlands (commission of fl), 1906, 2 K. B. 292, 75 B. J. K. B. 
501; Nell v. Longbottom (4d. worth of oil), 1894, 1 Q. B. 767, and many 
other cases, but earlier cases contra. Lewis v. Oarr. 46 L. J. Ex. 314 (a 
casual supply of candles) ; Nicholson v. Fields, 7 H. & N. 810. 

It is immaterial whether or not the contract is binding on the city and 
a disclaimer by the candidate is of no avail. 

R. ex rel. Moore v. Miller, 11 U. C. R. 465; R. ex rel. Fluett v. 
Gautier, 5 P. R. 24. 

N. was supplying goods to a corporation under an accepted tender to 
supply goods for a year. During the year and prior to nomination day he 
applied to a committee of the council to be released from his tender or 
contract and was released subject to the approval of the council. N. was 
nominated and subsequently the council ratified the resolution of its com- 
mittee. 

Held that the ratification while relating back to the time of the release 
by the committee did not put an end to the contract so as to affect the 
rights of electors and other candidates, and N. was held disqualified. 

The Statute provided, "A person shall be disqualified for being elected 
and for being a councillor if and while he . . . has directly or indirectly 
. . . any share or interest in any contract. . . . 

'Ford V. Newth, 1901, 70 L. J. K. B. 459. 

_ Tender Amonnting to Contract. — The observations of Channel, 
J., in the D. C. in Ford v. North, supra, are suggestive. 

Dealing with the question as to whether the tender and the operations 
under it amounted to a contract : 

"As to the first point whether at any time prior to the supposed deter- 
mination of it there had been a contract I entertain no doubt at all. I 
quite agree that it depends upon the words of the documents used in a par- 
ticular case and that there might be documents somewhat similar to those in 
question which would not amount to a contract, ,that there might be what 
is called a unilateral contract only ; or on the other hand the documents 
might simply shew that which becomes a contract only when an order for 
particular goods needed. All that might exist in the documents. On the 
other hand it seems to me that applying one's knowledge of business to what 
we know was the intention of the parties in such a case as this. A very 
little indeed in such documents would be quite sufficient to turn the trans- 
action into a contract." 

Contract by Agent. — When made by agent without knowledge of 
principal is principal disqualified? 



CONTRACTS BY AGENTS. 71 

If the corporation can hold the principal, yes, if not, no. 

See the Queensland case, Miles v. Mcllwraith, 52 L; J. P. C. 17. 

Assignment of benefits of a contract if a liability remains with the 
candidate will not remove disqualification. 

Cox V. Ambrose, 55 J. P. 23. 

A iby-law granting an exemption may embody a contract as a contract 
to build a mill and get exemption from taxes, in which case a pprson inter- 
ested in the contract is disqualified. 

R. ex rel. Lee v. Gilmour, 8 P. R. 514. 

Also a by-law may grant an exemption on certain conditions being com- 
plied with, there being no obligation on the grantee to comply with the con- 
ditions. A person interested in the exemption in such a case is not dis- 
qualified. 

R. ex rel. Harding v. Bennet, 27 O. R. 314. 

Arrangement to set ofE taxes against claim disqualifies. 

R. ex_ rel. Fluett v. Gautier,' 5 P. R. 24. 

Sureties for corporation officers are disqualified. 

R. ex rel. Haner v. Roberts ; R. ex rel. Taylor v. Stevens, 7 P. R. 315 ; 
R. ex rel. McLean v. Watson, 1 C. L. J. 71 ; R. ex rel. Coleman v. O'Hare, 
2 P. R. 18. 

Continuing surety. 

R. ex rel. Flanagan v. McMahon, 7 L. J. 155 ; R. ex rel. Ford v. 
McRae, 5 P. R. 309. 

Look up : R. ex rel. Forsyth v. Dalsen, 7 L. J. 71. 

A dispute as to amount due corporation by a treasurer who had resigned 
is a contract in the legal sense of the term and disqualifies. 

R. ex rel. Bland v. Figg, 6 L. J. 44. 

Contract for lease disqualifies. 

R. ex rel. Stock v. Davis, 3 L. J. 128. 

Conditional assignment of lease in attempt to remove disqualification, 
defendant disqualified. 

R. ex rel. Ross v. Rastal, 2 C. L. J. 160. 

" The word contract in this section must be construed in its widest 
sense so as to include contracts of record as well as small contracts and 
contracts under seal." 

R. ex rel. MacNamara v. Heffernan, 7 O. L. R. 289. 

Where a judgment is a final judgment the law implies a promise or 
contract by the defendant or party against whom the judgment is to pay 
the amount . . . where there is a promise or contract by implication of 
law it is of the same force as an actual promise or contract. 

Re Kerr v. Smith, 24 O. R. at 475. 

To a Contractor. — In Barnacle v. Clark, Darling, J., in the Div. 
Court said : — 

" We ought not to be hypercritical in dealing with the language of the 
section because the object of the provision is to put all persons who are 
members of a School Board beyond the suspicion of being interested in 
contracts with the Board." 

See Le Feuvre v. Lankester, 3 B. & B. 5.30 ; Tompkins v. JoUiiBEe, 61 
J. P. 247. 

The mere letting of a house at a fixed sum to a contractor for work 
under a local authority has been held to disqualify. 

Towsey v. White, 5 B. & C. 125. 

To a Contractor for Work. — A sub-contractor in the case provided 
for by the ss. becomes disqualified immediately upon the sub-contract 
taking effect. 

Ryan v. Willoughby, 27 A. R. 185. 

Supplying goods to a contractor. To supply goods does not disqualify. 

R. ex rel. Piddington v. Riddell, 4 P. R. 80. 

S. 34 of the Education Act, 1870, provides that no member of a School 
Board " shaU in any way share or be concerned in the profits of any 
bargain or contract with or any work done under the authority of such 
School Board." 



73 SHAREHOLDERS IN COMPANIES NOT APEBCTBD. 

The defendant sold sand to a contractor in the, ordinary course of 
business. Held that he was within the section. 

Barnacle t. Clark, 69 L. J. Q. B. 15. 

N.B. — ^The first part of (p) is sufficiently wide to include the latter 
part after " or." Has the addition of the words after " or " restricted the 
language of the first part of (p) V 

E.g. : — Suppose a contractor supplies material only, not work. A person 
who sells material to such contractor is interested in the contract under 
Barnacle v. Clark. 

(2) S.-s. 1 shall not apply to a person by reason only: 

{a) Of Ms being a shareholder in an incorporated 
company having dealings or a contract with the 
corporation, or 

Shareholder. — The House of Lords has held that a shareholder of a 
company "has an interest in the contracts of the company. 

Dimes v. Grand Junction Canal Company. 3 H. L. Cas. 759. 

Under the Public Health Act (J), 1875), s. 193, where there is no 
saying clause similar to this a shareholder in a gas company which sup- 
plied gas to a local board was disqualified from holding office under the 
local board. 

Todd V. Robinson, 54 L. J. Q. B. 47. 

The adding of an exemption of this kind by an amendment amounts to 
an assumption that witl^out express exemption a shareholder would be 
interested. 

Per Brett, M.R., Todd v. Robinson, supTa. 

For Ontario cases of disqualification before this ss. was enacted see 
R. ex reQ. Coleman v. O'Hare, 2 P. R. 18. 

A person becomes a shareholder : (1) on the issue of letters patent or 
certificate of incorporation or the passing of a Private Act. Refer to 
Company's Act, and (2) on allotment by directors. 

This sub-section protects persons who are merely shareholders but if 
they are officers or agents of the company they have a peculiar interest in 
its contracts. 

For discussion of nature of shai-eholders' interest in a contract of the 
company, see London v. London, 70 L. J. Ch. 334. 

(&) Of his being a lessee of the corporation for a 
term of twenty-one years or upwards of any pro- 
perty of the corporation, or 

(c) That part of his property is exempt wholly or in 
part from taxation, whether such exemption is 
founded on an agreement with the corporation or 
on a by-law of the council, or 

See R. ex rel. O'Sbea v. Letherby, 16 O. L. R. 581, and notes to ss. 
395 (f) and 396 (e) below. 

(d) Of his being the proprietor of or otherwise in- 
terested in a newspaper or other periodical publi- 
cation in which official advertisements or notices 
which appear in other newspapers or periodical 



OTHEE PBESONS KOT DISQUALIFIED. 73 

publications are published by the council or for 
which the council is a subscriber or which is fur- 
nished to any department or officer of a corpora- 
tion if the same are paid for at the usual rates, 
and he has not agreed with the corporation to do 
the whole or the principal part of its printing. 
3 Edw. VII. c. 19, s. 80 (2), part amended; 4 Edw. 
VII. c. 22, s. 37, part amended, or 

(e) Of his having been appointed and paid for his 
services as commissioner, superintendent or over- 
seer of any highway or of any work undertaken 
wholly or in part at the expense of the corpora- 
tion. 3 Edw. VII. c. 19, s. 537, part 1 (a) 
amended. 

(/) Of his being a consumer or taker of anything sup- 
plied by the corporation or any commission 
under the Public Utilities Act or of his having 
entered into a contract with the corporation or 
commission for the supply of it to him. New. 
3 & 4 Geo. V. c 43, s. 53 (2). 

(g) Of his being part owner or joint owner of vacant 
land (other than the land in respect of which he 
qualifies) in respect of which taxes are in arrears, 
where the council of the corporation has by reso- 
lution declared that clause (s) of subsection 1 
shall not apply so as to disqualify a joint owner 
or part owner of any such vacant land until after 
the first day of June, 1921. 9 Geo. V. c. 46, s. 1. 

(3) A person being such a shareholder shall not vote 
on any question affecting the company or being such a 
lessee shall not vote on any question affecting his lease 
or his rights or liabilities thereunder, or beingso exempt 
from taxation shall not vote on any question- affecting 
the property so exempt, or being such a proprietor of or 
otherwise interested in a newspaper or other periodical 
publication shall not vote on any question affecting his 
dealings with the corporation. 3 Edw. VII. c. 19, s. 80 



74 CONTEAOT 01' MEMBEES OE COUNCIL WITH OOKPOEATION. 

(2), 'part; 4 Edw. VII. c, 22, s. 37, part amended; 3 & 4 
Geo. V. c. 43, s. 53 (3). 

(4) The filing of the resignation mentioned in clause 
(j) of sub-section 1, shall render vacant the seat of the 
member. 10 Edw. VII. c. 85, s. 2, part; 3 &. 4 Geo. V. 
c. 43, s. 53 (4). 

53a. — (1) To remove doubts it is declared that the 
words "officer," "employee," or "servant" in clause 
e of sub-section 1 of section 53 of The Municipal Act, 
shall be deemed to include a commissioner or a member 
of any commissioner or other body, appointed by the 
council of a municipal corporation for the management 
and control of a public utility as defined by The Public 
Utilities Act or of an electric railway or steam railway, 
and except where otherwise expressly provided, no such 
commissioner or member shall be eligible to be elected a 
member of the council or be entitled to sit or vote therein. 

(2') Sub-section 1 shall have effect notwithstanding 
that the establishment of any such commission or other 
body is authorized by a special Act of the Legislature. 
8 Geo. V. c. 32, s. 3 ; 9 Geo. V. c. 46, s. 2. 

[N.B. — Section 53a, as given above, is effective from 
26th March, 1918.] 

54. If a member of a council in his own name or in 
that of another and alone or jointly with another enters 
into a contract with or makes a purchase from or a sale 
to the corporation, the contract, purchase or sale as 
against the corporation shall be void. 3 Edw. VII. c. 
19, s. 83, amended. 3 & 4 Geo. V. c. 43, s. 54. 

Exemptions. 

55. The following shall be exempt from being elected 
as members of a council and from being appointed to any 
municipal office : 

(a) Persons of the age of sixty years and upwards; 



PERSONS EXEMPT FROM EIvBOTION. 75 

(&) Members and officers of the Senate, or of the 
House of Commons of Canada, or of the As- 
sembly ; 

(c) Coroners; 

(d) Clergymen and ministers of every denomination ; 

(e) Members of the Law Society of Upper Canada, 
whether barristers or students ; 

(/) Officers of Courts of Justice; 

(g) Physicians and Surgeons ; 

(h) Professors, masters and teachers, "and the officers 
and servants of a university, college or school in 
Ontario ; 

(i) Millers; 

(j) Officers and members of a fire brigade or of an 
authorized fire company. 3 Edw. VII. c. 19, s. 
84, amended. 3 & 4 Geo. V. c. 43, s. 55. 



76 WHO TO BE BNTEEED ON VOTERS' LIST. 

PART III. 

Municipal, Elections. 

Who to he Entered on Voters' List. 

56. — (1) Every person shall be entitled to be entered 
on the voters' list prepared under Part I. or II. of the 
Ontario Voters ' Lists Act, who is : — 

(a) A male, a widow or an unraarried woman; 

(fe) Of the full age of twenty-one years ; 

(c) A British subject by birth or naturalization; 

(d) Not disqualified under this Act or otherwise by 
law prohibited from voting ; and 

(e) Rated, or entitled to be rated, or in the case of a 
male whose wife is or was entitled to be rated 
to the amount hereinafter mentioned on the last 
revised assessment roll of the local municipality 
for land held in his or her own right, or so rated 
or entitled to be so rated for income, or who is 
entered or was entitled to be entered on such roll 
as a farmer's son. 3 Edw. VII. c. 19, s. 86 (1) 
part amended. 

(2) The rating for land shall be in respect of a free- 
hold or leasehold, legal or equitable or partly of each to 
an amount not lesis than 

(a) In villages and townships, $100 ; 

(h) In towns having a population not exceeding 
3,000, $200; 

(c) In towns having a population exceeding 3j000, 
$200; 

(d) In cities, $400. 3 Edw. VII. c. 19, s. 87. 



RATING FOR INCOME — FARMER'S SON. 77 

(3) The rating for income shall 'be in respect of in- 
come from a trade, office, calling or profession of not 
less than $400 which has been received during the twelve 
months next preceding the final revision of the assess- 
ment roll or the twelve months next preceding the last 
day for making complaint to the Judge under the Ontario 
Voters' Lists Act. 3 Edw. VII. c. 19, s. 86 (1), part 
amended. 

(4) If both the owner and the occupant are -severally 
but not jointly rated, each shall be deemed to be rated. 
3 Edw. VII. c. 19, s. 92, amended. 

(5) Where land is owned or occupied jointly by two 
or more persons who are rated at an amount sufficient, 
if equally divided between theni, to give a qualification 
to all, each shall be deemed to be rated within the mean- 
ing of this section, otherwise none of them shall be 
deemed to be so rated. 3 Edw. VII. c. 19, s. 93, amended. 

(6) A person not entitled under the Assessment Act 
to be entered on the last' revised assessment roll as a 
farmer's son, shall be entitled to be entered on the 
voters' list if he has the other qualifications of a farmer's 
son as preseribed by that Act and has resided on the 
farm of his father or mother for the twelve months next 
preceding the date of the final revision of the assessment 
roll or for the twelve months next preceding the last day 
for making complaint to the Judge under the Ontario 
Voters' Lists Act. 

(7) Occasional or temporary absence from the farm 
for a time or times not exceeding in the whole six of the 
twelve months shall not disentitle a farmer's son to be 
entered on the voters' list. 3 Edw. VII. c. 19, s. 86 (1) 
part amended; 3 & 4 Geo. V. c. 43, s. 56. 

This section applies to the qualificfition of electors, not of candidates: 
R. ex rel. Milligan v. Harrison, 11 O. W. R. 554, 678 ; 16 O. L. R. 475. 

The Voters' List. — Part I. of the Ontario Voters' List Act, c. 6. 
R. S. O. 1914, contains directions for the preparing of municipal voters' 
lists for townships and villages, and except as varied by Part II. of the 
Act and by the Manhood Suffrage Registration Act, R. S. O. 1914, c. 7, 
applies also to cities and tovrns. 



78 PERSONS DISQUALIFIED FROM VOTING. 

Part II. of the Ontario Voters' List Act applies to every city in which 
a by-law is passed for taking the assessment prior to thirtieth day of 
September. 

Part III. of the Act provides for the preparing of municipal lists in 
territories without municipal organization. Part I. requires the clerk of 
each. municipality immediately after the final revision of the assessment 
poU to make correct alphabetical lists of all persons appearing by the 
roll to he voters. Part II. requires the list to be prepared immediately 
after the return of the roLL without waiting for its revision. 

In determining what names appearing on the assessment roll are to 
be put on the voters' list, the clerk is to be governed by s. 56. 

Questions as to the proper lists to be used in connection with any 
election or any voting on a by-law are discussed below. The remarks which 
follow deal solely with qualifications to be municipal voters enumerated 
in s. 56. 

As to S.-.S. 1 (a), (6) and (c), see notes to s. 52 (IB) and (Ic). 

Not Disqualified or FroMbited from Voting. — ^The principal 
disqualifications and prohibitions are as follows : — 
(o) The clerk, by s. 60; 

(6) Every person found guilty under ss. 187, 188 and 189 — the 
names of these persons shall not be entered on the voters' lists. 

(c) Defaulters in payment of taxes, by s. 59. 

(d) Counsel, agent, solicitor or clerk of candidate, by s. 61. 

There is apparently no provision forbidding the clerk to enter on the 
lists the name of a prisoner in gaol or patient in a hospital for the insane 
or a person maintained as an inmate in a house of refuge or house of 
industry, as is provided in s. 15 of the Ontario Elections Act, E. S. 0. 
1914, c. 8. 

Entitled to "be Rated. — ^The duty of the clerk, under s. 6 of the 
Ontario Voters' Lists Act, is to enter in the voters' lists only the names 
appearing by the assessment roll to be voters, but a person entitled to be 
rated may apply to the Judge, under s. 15 (2) of the last mentioned Act, 
and if entered by the Judge shall be entered also on the assessment roll 
without any request on his part. The same remarks apply to persons 
" entitled to be entered " as farmers' sons. 

Rated, of course, means appearing on the assessment roll. 

The rating of a husband in respect of his wife's property is not a 
joint rating in any sense. Sub-section 5 applies only to the qualification 
of electors, not to the qualification of candidates : Per Meredith, O.J., E. 
ex rel. Milligan v. Harrison, 1908, 16 O. L. R. at 479. See the Assess- 
ment Act, B. S. O. 1914, c. 195, s. 37 (11). 

Bating for I.and. — See s. 52 (1/). 

Population. — See s. 2 (m) and s. 52 (e) and (/). 

Income from a Trade, Office, Calling or Profession. — Note 

that income, as defined in the Assessment Act, R. S. O. 1914, s. 195, 
s. 1 (o), includes more than income as limited in s. 56. For example, 
profits received from money at interest or from stocks or profit or gain 
from sources other than those mentioned in s.-s. 4, while assessable, do 
not entitle a person to be entered in the voters' list. The last provision 
in s.-s. 3 enables a person entitled to vote to be entered on the voters' list 
under the provisions of s. 4 (2) of the Voters' Lists Act. 

Severally but not Jointly Rated. — ^Land owned by a resident and 
occupied by any person other than the owner must be assessed against 
both. They are severally rated. See the Assessment Act, s. 37, s.-ss. 3 
and 4. On the other hand land owned by more persons than one- must 
be assessed against all. They are jointly rated. 



EEVISION OF VOTEES' UST. 79 

Land Owned or Occupied Jointly. — Apparently the CLuestion of 
joint ownership or ownership in common is, by the language of s.-s. 5, 
involved. It would seem to have been better to have adopted similar 
language to that of s.-s. 4, thus " two or more persons jointly rated, etc." 
The Assessment Act, s. 37 (9), provides for the joint rating of "several 
owners of undivided shares." Apparently for the purpose of the Assess- 
ment Act the question of joint ownership or ownership in common is not 
materiaL Possibly the effect of the qualifying clause " who are rated " is 
to make the distinction unimportant for the purposes of s.-s. 5. 

Joint assessment; qualifica.tion considered: E.. ex rel. O'Shea v. Leth- 
erby, 11 O. W. R. 929 ; 16 O. L. R. 581. 

FariueTs' Sons. — Section 25 of the Assessment Act make the right to 
be entered as a farmer's son on the assessment roll depend on the (1) 
residence on the farm for twelve months next preceding the date fixed for 
beginning to make the roll, and (2) residence on the farm at the said 
date. Sub-section 6 gives two later dates of reference for determining the 
qualifications. See ss. 57 and 58. 

Temporary Absence. — Sub-section 7 is identical with s.-s. 6 of s. 25 
of the Assessment Act referring to the assessment roll. It is needed 
because s.-s. 6 is confined to the roll. Determination of residence; animus 
revertendi: Re Sturmer and Beaverton, 2 O. W. N. 1227; 19 O. W. R. 
430; 24 O. L. R. 65. 

" Owner " includes a locatee : Pattison v. Emo, 28 O. L. R. 228. 

Partnership. — See R. ex rel. Harding v. Bennett, 27 O. R. 314. 

BeTision of Voters' List. — See the Ontario Voters' Lists Act. 
The list when finally revised is to be certified, under ss. 21. or 22, as the 
case may be. After being certified, it may still be changed by striking 
off the names of persons who have died since the list was certified : s. 23. 
Then s. 24 provides : — 

" The certified list shall, under the Ontario Election Act, or the 
Municipal Act, be final and conclusive evidence that all persons named 
therein, and no others, were qualified to vote at any election at 
which such list was, or was the proper list to be used ; except 

1. Persons guilty of corrupt practices at or in respect of the 
election in question, or since the list was certified by the Judge; 

2. Persons who, subsequently to the list was certified, are not or 
have not been resident within the municipality to which the list 
relates, or within the electoral district for which the election is held, 
and who by reason thereof are, under the provisions of the Ontario 
Election Act, or the Municipal Act, disentitled to vote ; 

3. Persons who, under ss. 12 to 15 of the Ontario Election Act, 
are disqualified and incompetent to vote: 7 Edw. VII., c. 4, s. 24; 
2 Geo. v., c. 4, s. 3." 

As to revision of voters' lists, see Rawdon Voters' List, 1903, 6 O. L. 
R. 613; Norfolk Voters' List, 1908, 15 O. L. R. 108; South Fredericks- 
burgh Voters' List, 1908, 15 O. L. R. 308 ; Adolphustown Voters' List, 1908, 
17 O. L. R. 312. 

Bight to Vote. 

57. Subject to ss. 59, 60 and 61, every person whose 
name is entered on the proper voters' list shall he entitled 
to vote at a municipal election except that in the case of a 
tenant he shall not be entitled to vote unless he is a resi- 
dent of the municipality at the date of and has resided 
therein for one month next before the election and in the 



80 EIGHT TO VOTE. 

case of an income voter, and of a farmer's son, he is a 
resident of the municipality at the date of the election. 
3 Edw. VII. c. 19, ss. 86 (1) and 89 a, part amended; 3 & 4 
Geo. V. G. 43, s. 57. 

The decision in Re Ryan and Alliston, although dealing with a list 
tor voting on a by-law, is in reality a decision as to the effect of the 
provisions of s. 57 by reason of the provisions of s. 268. 

58. Except as to the disqualification arising from his 
not residing in the municipality at the time of the election 
in the case of an income or farmer's son voter or .from his 
not residing in the municipality for one month next be- 
fore the election and at the time of the election in the case 
of a tenant, or from the non-payment of taxes in the case 
of a voter whose name appears on the defaulters' list, 
no question as to the qualification of any person whose 
name is entered on the proper list of voters shall be 
raised at an election. Neiv. See 3 Edw. VII. c. 19, s. 89, 
last part. 3 & 4 Geo. V. c. 43, s. 58. 

A person's name was properly entered on the list as a tenant, but after 
a final revision of the list he ceased to be a tenant or occupy the property, 
but continued to reside in the municipality, and was a freeholder to an 
extent entitling him to vote. At an election he demanded a ballot and was 
willing to take the oath as a freeholder. Held, entitled, and a refusal to 
allow him to vote was a breach of duty of the returning ofBcer : Wilson v. 
Madues, 28 O. R. 419; 26 A. R. 398. 

[Note. — Old s. 89, first part covered hy s. 57, last part 
covered hy s. 58.} 

59. — (1) No person whose name appears on the de- 
faulters ' list provided for by s. 95 shall be entitled to vote 
in respect of income in any municipality, or in respect of 
real property in a municipality, the council of which has 
passed a by-law; under paragraph 9 of s. 399, unless at the 
time of tendering his vote he produces and leaves with 
the deputy returning officer a certificate from the trea- 
surer, or the collector, .shewing that the taxes, in respect 
of which the default was made, have since been paid. 

(2) The deputy-returning officer shall file the certifi- 
cate, and note the same on the defaulters' list. 3 Edw. 
VII. c. 19, s. 88, amended; 3 & 4 (3eo. V. c. 43, s. 59. 



FINALITY OF VOTBKS' LIST. 81 

Finality of Voters' Iiist. — Bearing in mind the fact that a muni- 
cipal election is a difiEerent thing from a voting on a by-law and that the 
finality of voters' lists for municipal elections depends upon different 
though similar statutory provisions, the following remarks by Clute, J., 
in Re Mitchell and Campbellford, 1908, 16 O. L. R. 578, are of value:— 

" When once the Municipal Act applies arid the voters' lists are 
brought in as the lists to be used to designate the persons who are 
entitled to vote, such lists are not to be disassociated from the quality 
of finality which the Act gives them, and which was the chief cause 
of their being. They have, so to speak, the quality of finality as an 
integral part of them. They indicate the persons entitled to vote in 
such manner that their qualification, cannot be further inquired into. 
They are not lists under the Act, if stripped of this essential quality. 
See In re Port Arthur aud Rainy River Prov. Election, Preston v. 
Kennedy, 1907, 14 O. L. R. 345; Re Saltfleet Local Option By-law, 
1908, 16 O. L. R. 293 ; R. ex rel. McKenzie v. Martin, 1897, 28 O. R. 
523 ; In re Armour and the Township of Onondaga, 19D7, 14 O. IJ. R. 
606, 608. 

" I am not able to follow Mabee. J., in Re Cleary and the Town- 
ship of Nepean, 1907, 14 O. L. R. 392." 

In re Cleary and Nepean, 1907, 14 O. L. R. 392, Mabee, J., dealing 
with the contention that the lists were final and that the Court on a 
motion to quash a by-law could not enter into the consideration of the 
question as to whether the persons voted who had a right to vote, discussed 
the cases as follows:^ 

" In Re Leahy and Village of Lakefield, 1906, 8 O. W. R. 743, it is 
said (p. 744) : ' Five" tenants voted who had no_ right to vote, because 
they had not been resident within the municipality for one month 
before polling day. That is not controverted, and, no doubt, these 
five tenants improperly voted, and if a sufficient number of such ten- 
ants to have affected the result had voted, although it is impossible 
to tell which way they voted, it would have been necessary to set 
aside the by-law. However, if all the five' votes were struck off, that 
would result only to reduce the majority to 36.' ' 

"In Re Young and Township of Binbrook, 1899, 31 0. R. 108, 
the Court went behind the voters' lists, and took into consideration 
some 80 persons entitled to vote, and whose names had been left off 
the list by .the clerk upon the assumption that they were not 
entitled to vote. 

"In Re DiUon and Village of Cardinal, 1905, 10 O. L. R. 371, 
affidavits were received as to illegal votes cast, and the same was 
done in In re Salter and Township of Beckwith, 1902, 4 O. L. R. 51. 

"In the Dillon case Mr. Justice Magee says (p. 375) : 'A ma- 
jority obtained by illegal votes does not present itself as not being 
an illegality such as the statute contemplates as a ground for quash- 
ing.' If this be right, the voters' lists are not final, and the Court 
must consider the legality of the votes that are "Questioned. See also 
Re Gerow and Township of Pickering, 1906, 12 O. L. R. 545, and 
Re Sinclair and Town of Owen Sound, 1906, ib. 488. 

" Of course, it was not argued that these ladies had the right to 
vote. 

" I am bound by the foregoing cases, and am precluded, I think, 
from holding that it is not open to an applicant to quash a by-law to 
shew that illegal votes were cast." 

Re Mitchell and Campbellford, supra, was approved by the Divi- 
sional Court in Re McGrath and Durham, 1908, 17 O. L. R. 514, _ in 
which will be found a most complete history of the legislation and review 
of the cases by Riddell, J. Among the earlier cases dealing with rnunici- 
pal elections, as distinguished from voting on by-laws, may be mentioned.; 
R. «£ rel. St. Louis v. Reaume, 1895,- 26 O. R. 460, where Boyd, C, said:' 
" The whole system is based on the finality of the voters' list as settled 
and certified by the Judge." In R. ex rel. McKenzie v. Martin, 1897, 27 
O. R. 523, Rose, J., adopted the same view. 

M.A.— 6 . 



82 MNALITT OF VOTBES' LIST. 

The whole question as to the fiijality of the lists both at a municipal 
election and at a voting on a by-law was thus discussed by Meredith, CJ 
in Ee Orangeville Local Option By-law, 1910, 20 O. L. R. 476. 

" It was held by RiddeU, J., in Re Armour and Township of 
Onondaga, 1907, 14 O. L. R. 606, following R. ex rel. McKenzie v. 
Martin, 1897, 28 O.R. 523, that he had no power upon a tnotion to 
quash to examine ' into the propriety of the various names being on 
the voters' list,' and, if there was no ppwer to do this on such a 
motion a fortiori the County Court Judge has, no such power upon 
a scrutiny of the ballot papers. 

" If there was ever any doubt upon the point, it has been removed 
by s. 24 of the, Voters' Lists Act, 1907, which makes the certified 
list final and conclusive evidence that all persons named in it, and 
no others, except such as come within the exceptions mentioned in 
the section which are applicable to a municipal election, ' were quali- 
fied to vote at any election at which such list was, or was the proper 
list to be, used.' 

" It is not open to doubt that the words ' any election ' apply to 
the taking of the vote of the electors upon a by-law which requires 
their assent before it is competent to the Council finally to pass it, 
and, as I understand the Saltfleet case, the Divisional Court was of 
that opinion. 

"What, then, are the exceptions? They are enumerated in para- 
graphs 1, 2 and 3 of s. 24, and are as follows:" See supra. 

His Lordship then read the section, which wiU be found above, and 
proceeded :— 

" The only one of these three paragraphs which, in my opinion, 
is applicable to a municipal election, is paragraph 1. 

" Paragraph 2 is applicable to voting at elections under the 
Ontario Election Act, and to that only. This is manifest from the 
concluding words, ' and who by reason thereof are, under the provi- 
sions of the Ontario Election Act, disentitled to vote.' 

" Paragraph 3 is also applicable only to elections under the 
Ontario Election Act. That I should have thought clear from the 
language used, but, if it were open to a different construction, a con- 
sideration of the effect / of treating it as applicable to a municipal 
election makes it clear that that was not intended. 

" The Ontario Election Act mentioned in the section is R. S. 0. 
1897, c. 9; and ss. 4 to 7 of it disentitle to vote: — 

(1) Judges and certain officials; 

(2) Persons not named in the proper voters' list; 

(3) Returning officers, election clerks, and certain other persons 
employed at the election, in reference to it, or for the pur- 
pose of furthering it ; 

(4) Women ; 

(5) Prisoners, patients in lunatic asylums, and persons main- 
tained wholly or in part as inmates receiving charitable 
support or care in certain institutions. 

" Many of the persons disentitled to vote under the Ontario 
Election Act are not disentitled to vote at municipal elections, as 
will be seen by referring to Part II., Title II., ' Division II. — ^Dis- 
qualification,' of the Municipal Act. 

" Many officials disentitled to vote under the Ontario Election 
. Aqt are not disentitled to vote at municipal elections; and some that 
are disentitled to vote at municipal elections may vote at elections 
under the Ontario Election Act. Some women may vote at a munici- 
pal election, but none at an election for the Legislative Assembly. 

" The persons mentioned under the fifth head, and some of those 
mentioned under the fourth head, are not disentitled to vote at muni- 
cipal elections, and there are other differences which it is not neces- 
sary to mention. ... 

" I do not wish to be understood as expressing the opinion that, 
upon a proceeding to unseat a candidate who has been declared 



FINALITY OF VOTERS' LIST. 83 

elected, or on a motion to quash a by-law, it would not be open to 
the Court to inquire whether a person whose name was entered on 
the voters' list had not, by 'something which had subsequently 
occurred, lost his right to vote, and, if that was found to Be the 
case, to disallow the vote. I reserve my opinion as to such a ease 
until it is presented for decision. 

" I am here again met with the decision in the Saltfleet case, that 
upon a scrutiny of the ballot papers, under s. 371, a ' subsequent 
change of residence, which would disqualify, may be investigated, 
under sub-clause 2, but not a subsequent change of status:' per the 
Chancellor, at p. 302. 

" I have already indicated my reasons for differing from that 
view as to the efEeet of s. 24 of the Voters' Lists Act, 1907, as 
applicable to a scrutiny of ballot papers under the Municipal Act, 
but my duty is to follow the Saltfleet case and not to give effect to my 
own opinion." 

His Xiordship then discussed the opinion of the County Court Judge 
under review on appeal in the case before him, to the effect that where a 
person whose name is entered on the voters' list, at any time subsequent 
to its having been certified, is not a resident within the municipality, the 
list as to him is not final and conclusive, but his right to be entered upon 
it may be questioned, and, if it appears that he has not that right, his 
vote may be disallowed, even in a case such as that of a freeholder where 
residence in the municipality is not required to entitle him to vote, and 
then proceeded: — 

" 'Such a view is, in my opinion, entirely opposed to the policy 
on which the Voters' Lists Act is based, which is, that the list is to 
be final and conclusive as to the right of every person whose name 
is entered on it to vote, unless, by something happening subsequently, 
such as change of residence, he has lost that right (par. 2), or 
unless he has been guilty of corrupt practices at the election at 
which he voted or since the list was certified by the Judge (par. 1), 
or unless he is a person incompetent or disqualified from voting under 
ss. 4 to 7 of the Ontario Election Act, par. 3 and par. 2 being, in 
my opinion, applicable only to elections under that Act.- 

" To attribute to the Legislature the intention of opening the 
door to an attack on the voters' list simply because a person whose 
name is entered on it, whose right to vote is challenged, may have 
ceased temporarily, it may be, to reside in the municipality, where his 
ceasing to do so did not affect his right to vote, is not, I venture to 
think, very complimentary to the good sense of that body. 

"A reference to the sections of the Ontario Election Act, R. S. O. 

1897, c. 9, which deal with residence as affecting the right to vote 

(ss. 8 to 11), shews clearly, ^I think, the cases which par. 2 was 

. intended to provide for, and that that want of good sense is not fairly 

chargeable to the Legislature." 

Finality, etc. — The question again was considered by Riddell, J., in 
Re Ellis and Renfrew, 1910, 21 O. L. R. Riddell, J., affirmed, 2 O. W. N. 

27 D. C, reaffirmed, 1911, 23 O. L. R. 427; the same conclusion being 
reached as was arrived at by Meredith, C.J., in Re Orangeville Local 
Option By-law, supra. It came up again in Re Dale and Blanchard, 1910, 
21 O. L. R.^ 497, 23 O. L. R. 69 A. C, where Mulock, C.J., followed Re 
Mitchell and Campbellford, supra. The Divisional Court held that the 
list used was hot conclusive, on the ground that it was a list prepared 
by the clerk for voting on a money by-law, and had not the finality of a 
voters' list duly certified. The Court of Appeal upheld the decision of the 
Divisional Court. 

The question of the finality of voters' lists came up again in McPher- 
son v. Mehring (referred to as the West Lome Scrutiny), reported in 

28 O. L. R. 598 ; Middleton, J., reversed, 25 O. L. R. 267 D. C, restored, 
26 O. L. R. 339 C. A., and confirmed, 1913, 47 S. C. R. 451; the final 
decision being that on a scrutiny at any rate a Judge may go behind, the 
voters' list and inquire if a tenant whose name is placed thereon has, the 
residential qualification entitling him, to Vote. 



84 PROPER voters' list. 

Summary. — The finality of the voters' list comes into consideration 
on the following occasions : — 

A (1) At a municipal election; 

(2) On a recount ; 

(3) On proceedings to unseat; 

B (1) At a voting on a by-law ; 

(2) On a scrutiny ; 

(3) On a motion to quash a by-law; 

C On prosecutions under the Act. 

Proper Voters' List. — The use of a wrong list is fatal to an elec- 
tion : R. ex rel. Black v. Campbell, 1909, 18 O. L. R. 269. The proper 
list to be used is piLseribed by s. 91 to be the last list certified by the 
•Tudge, under the Ontario Voters' Lists Act, with supplementary lists 
under ss. 93 and 94. See cases discussed under s. 91. Apparently the 
list to be used must be a list which has been certified before the time at 
which nomination takes place. The electorate should know beforehand 
who the authorized electors are : East Durham case, 1890, 1 Ont. El. 
Gas. at 493, and s. 23 of the Voters' Lists Act appears to put it beyond 
doubt. (See remarks of Anglin, J., in R. ex rel. Black v. Campbell). 

In re Ryan and AUiston, 1910, 21 O. L. R. 582; 22 0. L. R. 200, 
there was a motion to quash a by-law upon the ground amongst others that 
there was no lawful or sufficient list, because the notice of the holding of 
the Court for the revision of the list was not published as required. The 
list was certified by the Judge. Meredith, C.J., said : — 

" But in the nature of the thing it must have been intended that 
a de facto list, certified by the Judge, and especially where an elec- 
tion had been held at which it was used, should be for the purpose 
of that election the proper list to be used, and not intended that it 
should be open to some one whose industry had led to the discovery 
that a complainant who was treated as one having a right to com- 
plain had not that right, or that there was some omission as to the 
publication of the notice required by s.-s. 4 of s. 17 of the Ontario 
Voters' Lists Act, to attack the election, on that ground. 

" To give effect to the objections of the applicant would mean 
that a ministerial officer, the clerk, would be called upon, when an 
election is to be held, to enter upon an inquiry as to whether there 
had been a compliance with the law in those respects, in order to 
determine what was the proper list to be used at the election. 

" All this points to the conclusion that the last de facto certified 
voters' list filed in the office of the Clerk of the Peace is all that 
the clerk of the municipality is to concern himself with, and leads 
necessarily, I think, to the conclusion that, where an election has 
been held at which such a list has been used, it was not intended that 
the election shoul4 be open to attack because of some informality or 
omission on the part of the Judge or of any of the officers intrusted 
with duties in connection with the list in the performance of their 
duties under the Act in accordance with its provisions." 

This reasoning was followed by the Divisional Court. In the Divi- 
sional Court, Middleton, J., made the following valuable comment: — 

" The clerk, exercising his ministerial or administrative functions 
in connection with the election, is bound, by s. 148 of the Municipal 
Act, to use upon the voting the last list certified by the Judge, and 
transmitted as there required. The clerk is not to go behind the 
certificate of the Judge for the purpose of ascertaining whether he 
has duly discharged his functions. Unless and until the act of the 
Judge has been quashed or in some way annulled, it is conclusive upon 
all. Re Schumacher and Town of Ohesley determined that a certiorari 
would not lie to bring up and quash a certificate of the Judge because 



THE QUALIFICATION OF EESIDENCE. 85 

of suggested error in determining matters over wliich he had juris- 
diction. But where the Judge has no jurisdiction to -enter upon the 
inquiry at all, by reason of the failure to observe the requirements 
of the statute, his certificate can be quashed. Until this is done the 
certificate exists, and must be acted upon — any attack upon it after 
the voting is too late." 

Re Schumacher and Chesley (unreported), was a decision of a Divi- 
sional Court (Britton, Teetzel and Riddell, JJ.), on the 4th April, 1910, 
dismissing an appeal from an order of Meredith, C.J.C.P., in Chambers, 
refusing a certiorari. A motion for prohibition had been therefore made 
to Meredith, C.J.C.P., aricl dismissed. See Re Schumacher and Chesley, 
1910, 17 O. W. R. 174. 

Residence. — In Dalziel v. Grand Trunk, 1876, 6 P. R. 305, Harri- 
son, G.J., discussed the nature of residence in a characteristic judgment, 
as follows: — 

" There is no strict or definite rule for ascertaining in every case 
what is residence. The word ' residence ' may have a very different 
meaning in different statutes: per Earl, J., in Whitharn v. Thomas, 
7 M. & G. 5 ; and per Robinson, C.J., in Mellish v. Van Norman, 13 
U. C. Q. B. 451, 455. 

" In general it may be said that a man's residence is where his 
home is situate — ^where his family live : R. v. Inhabitants of North 
Curry, 4 B. & C. 959. An occasional absence from home on busi- 
ness does not make his home less his residence: Whithorn v. Thomas, 
7 M. & G. 1; R. ex rel. Taylor v. Caesar, 11 U. C. Q. B. 461. 
Where a person goes away from a parish for a temporary purpose, 
leaving a house and lodging behind, he is still in effect residing in 
the parish : per Blackburn, J., in R. v. Glossop, Ij. R. 1 Q. B. 229. 
See further, R. v. Mitchell, 10 East, 511; Re Guilford Union v. St. 
Waves' Union, 25 L. T. N. S. 803 ; R. v. Stourbridge, 34 L. J. M. C. 
179 ; Ford v. Pye, L. R. 9 C. P. 269 ; Ford v. Hart, ih. 273. Refer- 
ence may also be made to the following cases : Marsh v. Hutchinson, 
2 B. & P. 226, note ; R. v. Sargent, 5 T. R. 466 ; R. v. Duke of Rich- 
mond, 6 T. R. 560; R. v. Boycott, 14 L. T. N. S. 599; Taylor v. 
The Overseers of the Parish of St. Mary, Abbott, L. R. 6 C. P. 309 ; 
Bond v. The Overseers of the Parish of St. George, Hanover Square, 
it. 312; Fry's Election case, 10 Am. 698. 

" Although the village of Rochesterville is in the Province of 
Ontario, and the town of Aylmer in the Province of Quebec, the dis- 
tance between the two places is not great. Rochesterville is on the 
Ontario side of the Ottawa River and Aylmer. not far from the other 
side of the River on the Quebec side. The distance between the two 
is no more than a moderate walk. A man might well, therefore, 
reside in Rochesterville and attend to business in Aylmer. There 
would be nothing to prevent him, if so disposed, returning to his 
wife and family in Rochesterville daily. The fact that he only visits 
- his wife and family once a week — that is to say, on Sundays — does 
not, in my opinion, render him less a resident of Rochesterville. 

" The conclusion which I draw from thfe facts stated in the 
affidavits is, that while the defendant was, at the time of the issue 
and service of the writ, employed in Aylmer, he had his residence^ 
in other words — resided in Rochesterville — where his wife and family 
resided. His contention to the contrary does not alter the facts or 
the conclusions to be drawn from them: Manning v. Manning, h. R. 
2 P. & D. 223. 

" The enquiry being as to a matter of fact, and the learned Judge 
of the County Court having apparently found against defendant on 
the facts, I might well have left him there and refused the prohibi- 
tion on that ground alone ; but as the question is one of some general 
importance in the administration of law in the Division Courts of the 
province, I thought it better to take some trouble about it, and, if 
possible, dispose of it on the merits. 

" I agree with the learned Judge of the County Court in the 
result at which he arrived, and discharge the summons with costs." 



.86 THE QUALIFICATION OF EESIDENCE. 

Subsequent change of residence after the voters' list has been 
certified may result in - disqualification in the case of tenant, income 
and farmer's son voters. Residence for the purpose of determining 
whether or not such subsequent disqualification has resulted must be ' 
determined on the same principles as residence as a qualification was deter- 
mined in the first instance. The anomalous situation may be presented in 
eases where there has been change of residence since the voters' list was 
certified ; that the voter does not actually possess the residence qualifica- 
tion required by ss. 57 and 58. In such a case, Riddell, J., thought 
that on a motion to quash at any rate, the Act prevented an inquiry in 
the right of such persons to vote, saying : — 

" It is, of course, said that this would result in an anomaly, 
But we are not a logical people; consistency is too precious a jewel 
to be lavishly applied in legislation, and the forest of our statutes is 
full of anomalies :" Re Ellis and Renfrew, 1910, 21 0. L. R^at 83. 
In the Court of Appeal, 23 O. L. R. at 435, Garrow, J.A., said: — 

" It would be an odd and wholly illogical conclusion that the 
person who was actually disqualified when the list was certified, 
should be in a better .position than one who, properly qualified then, 
subsequently became disqualified — a result which, in my opinion, could 
not have been intended, and which is certainly not clearly within the 
language used." 

In Re Norfolk Voters' List, 1907, 15 O. L. R. 108, the Court of 
Appeal refused to determine simple questions such as whether a particular 
person was in good faith a resident of and domiciled in a particular 
municipality, which had been submitted by a County Court Judge. Mere- 
dith, J.A., referred the County Court Judge to the following among other 
cases : 

Beal V. Ford, 1877, 3 C. P. D. 73, 47 L. J. C. P.' 56, the qualification 
being residence for six months. Beal left the house he had occupied as 
tenant, and during the last two months he and his family, contrary to the 
rules, slept in an almshouse as a guest of his mother-in-law. It was con- 
tended for Beal that " no quality of residence " was required and that 
the voter would be entitled to be registered even if he slept under a liedge 
and lived- in public houses " within the required limits," and The Queen v. 
Sowton was cited as authority for the proposition that when a man came 
to a place on the first day he was regarded as a stranger, on the second as 
a guest, and on the third as an inhabitant. For the respondent in White- 
horn V. Thomas, 7 M. & G. 1, was cited as deciding that " sleeping at a 
place by no means constitutes a residence," and Powell v. Guest, 18 C. B. 
N. S. 72, and Ford v. Pye, L. R. 9 C. P. 269, 43 L. J. C. P. 21, as 
authority that residence must amount to home. The Court held that the 
section in question must be construed apart from authority, as the cases 
cited did not apply and refusing to hold that sleeping under a hedge 
would do, held that Beal was qualified. 

Ford V. Hart, 1873, L. R. 9 C. P. 273, 43 L. J. C. P. 24. Hart 
was an officer in the army, usually on duty at a distance from Exeter, of 
which city he was a freeman. When he had leave of absence he lived at 
his mother's house within Exeter. During twelve months preceding the 
date of reference, he had had leave of absence for three months, and 
during that period resided with his mother. He was held not to have 
resided within the limits for six calendar months next previous to the 
date of reference as required. 

Bond V. St. George's, 1870, L. R. 6 C. P. 312, 40 L. J. C. P. 47. Bond 
iona fide occupied as sole tenant lodgings in London for the necessary 
period; the only question being whether he had a sufficient residence 
therein, the Act requiring twelve months' residence. He had a country 
house where he lived, and he occupied the lodgings occasionally for several 
days at a time. He was held to be qualified. From ' this and similar 
cases, it would appear that a person can have a residence qualification in 
more than one municipality. 

Beal V. Exeter, 1887, 20 Q. B. D. 300, 57 L. J. Q. B. 128. This was 
an objection to the name of Robins being retained on the list on the 
ground that he had not resided within the necessary limits for six months 
as required. Coleridge, C.J., thus expressed himself : — 



THE QUALIFICATION OF RESIDENOE. 87 

" It is impossible to define exhaustively the word ' residence ' ; 
in each case the question must be decided by the rules of common 
sense. The mere power and intention to return will not by them- 
selves constitute a constructive residence, for both might be consistent 
with a three years' absence from the borough, and no one in such a 
case would say that residence was established. There may be cases 
of constructive residence by a wife and children as for instance 
where a sailor engaged on the coasting trade, having the power and 
intention of returning, leaves his wife and children in the house ; 
but I fail to see any such elements of residence in the present case. 
The voter is a single man residing in his father's house ; he goes to 
Loudon for two months, whence he is unable, consistently with his 
contract duties, to return ; he returns to Exeter, and after a short 
stay goes away again to London, with the intention, as far as one 
can see,- of remaining there. Under these circumstances, it seems to 
me impossible to say that he resided at Exeter." 

On a motion to quash a by-law, Middleton, -7., held good the vote of a 
farmer's son where the farm was partly in one and partly in another 
municipality, and the house was not in Newburgh, on the ground that 
it could not be said that the farmer and his family resided in any one 
part of the farm. The farmer's son's name appeared in the list and his 
residence had not changed. See supra. Re Fitzmartin and Newburgh, 
1911, 24 O. L. R. 102. This was upheld by the Divisional Court. (In 
the same case Karr, a married man, who was not living at home because, 
as it was rumoured, he was separated from his wife, Middleton, J., said : — 

" The thoughts or imaginations of the village clerk are not evi- 
dence upon which a vote can be disallowed. They are not evidence 
at all. The witness must state facts within his own knowledge ; and 
the tattle of a village is hearsay of the worst possible kind. The 
man's wife is there; his house is there; and it is not shewn that his 
absence is not of a temporary nature, not amounting to an abandon- 
ment of his home as a place of residence. ' UTii uxor. Hi domus,' 
may well be applied." 

On appeal, Riddell, J., said : — 

"Air that is sworn to is: (1) that Karr was a section-man; 
(2) he was not in Newburgh on the 2nd December ; (3) he voted on 
the 2nd January; (4) as a tenant; and (5) that (on the 22nd April) 
he had not been in Newburgh ' for some time ' ; (6) his family living 
in Newburgh; (7) as some time, indefinitely called 'that time,' he 
was ' HP east some place.' There are several ' thinks ' and ' I have 
beards,' but nothing else that can be dignified by the name of 
evidence. 

" The appeal should be dismissed with costs." 

And discussed the authorities in Re Sturmer and Beaverton, 1011, 24 
O. L. R. at 68, as follows : — 

"The question is, has this man Jones lost his residence? He is 
a railway employee. He was sent to relieve another employee who 
was temporarily disqualified, and left Beaverton some time before the 
lOtih December. On that date his wife and child followed him, and 
continued to live with him at Whitby, in a room rented there. Some 
few articles of furniture were taken, but he continued to maintain 
his house in Beaverton, having left the bulk of his furniture there, 
and manifestly regarded his abiding in Whitby as temporary only. 
Some poultry was left in Beaverton, and, by an arrangement with a 
friend, was cared for during his absence. 

"Re Seymour Voters' List, 1899, 2 Out. Elec. Gas. 69, a case 
upon a stLitute, requiring continuous residence, is a sufficient answer 
tQ this objection. A series of cases not there cited lead to the same 
conclusion. 

" The question is, what is the meaning of the word ' resides ' ? 
I take it that the word, when there is nothing to shew that il; is used 
in a more extended sense, denotes the place where an individual eats, 



■ 1 



88 THE QUALIFICATION OF EBSIDENCE. 

drinks, and sleeps, or where his family or his servants eat, drink, and 
sleep : Bayley, J., in The King v. Inhabitants of North Curry (1825) 
4 B. & C. 953. 

" In Powell V. Guest, 1864, 18 C. B. N. S. 72, the doctrine laid 
down in Elliott on Registration is approved : ' In order to constitute 
residence, a party must possess at the least a sleeping apartment, but 
that an interrupted abiding at such dwelling is not requisite. Ab- 
sence, no matter how long, if there be liberty of returning at any 
time, and no abandonment of the intention of returning whenever it 
may suit the party's pleasure or convenience so to do, will not pre- 
vent a constructive legal residence. But, if he has debarred himself 
of the liberty of returning to such dwelling, by letting it for a period, 
however short, or has abandoned his intention of returning, he cannot 
any longer be said to have even a legal residence there.' 

" The commis,sion of crime justifying imprisonment is held to be 
a voluntary abandonment of the residence, but imprisonment for debt 
is not, because the debtor can at any time return on paying his debt. 
Nor is imprisonment pending a trial any abandonment of residence- 
Charlton v. Morris, 1895, 2 I. R. 541 C. A. 

" A poor law case. Guardians of Holborn v. Guardians of Chert- 
sey, 1884, 54 L. J. M. C. 53, is also of value. Hawkins, J., states the 
law thus : ' Mere bodily presence or actual dwelling in a parish, 
. though prima facie, is not absolutely sufficient to satisfy the statute ; 
more is required. The evidence must be such as to satisfy the tri- 
bunal before which the question arises, that the place of it was the 
home and fixed place of abode of the person whose settlement is 
disputed. If a person having a home of his own of which he is the 
head, or being a member of his father's family and having his fixed 
home as of right at his father's house, quits it for a mere temporary 
purpose, intending on leaving and during all his absence to retdrn to 
it as soon as the object of his absence is accomplished and then to 
live in it as before — such mere temporary physical absence does not 
operate as a break in his residence . . . ; though physically absent 
his residence continues. A man who goes from his home on a journey 
or a visit, intending to return when his journey or his visit is over, 
though dwelling away from it for a time, cannot be said to be resi- 
dent at the place where he is a mere visitor. On the other hand, if a 
person having a fixed home, whether as the head of it or as being a 
member of a family, and whether emancipated or not quits it with 
the intention not to return, or to return only upon the happening of 
some particular uncertain event, he cannot during his absence be' said 
to reside in the home he has quitted. Whether the animus revertendi 
existed is always a question of fact, not of law. 

"The Northallerton Case. 1869, 1 O'M. & H. 167, 170, 171. is 
also of value, Mr. Justice Willes upholding the right to vote, based 
upon residence in these cases, upon slight evidence." 

This was upheld on appeal. Note Boyd, C.'s, discussion of Jones' 
case at p. 74. 

If a voter's name appears in the voters' list, the only questions which 
can be raised at an election as to his right to vote are those specified in 
this section. 

The right to be on the roll cannot be enquired into. That is a matter 
of status and .was a proper subject for investigation and correction before 
the final statement of the list, but a subsequent change of residence or 
other matter of disqualification may be investigated on (1) proceedings to 
unseat, (2) a scrutiny, (3) motion to quash, (4) prosecutions for penal- 
ties, and may be a ground at an election or a voting on a by-law for 
raising an objection under s. 103 and causing the person tendering the 
vote to be sworn. If he takes the oath, he must be permitted to vote. 

As to income voters, the prohibition is not dependent on the passing 
of a by-law under s. 399 (9). This is plain, from s. 95, which requires 
a list of persons entered in respect of income only who are in default 
to be provided for the purposes of this section. 

The question of the defaulters' right to vote can be raised at the 
election. This follows from s. 58. If the name is in the defaulters' list, 
the deputy returning officer should refuse the vote, unless the certificate 



PERSON EMPLOYED BY OANDIDArES. 89 

mentioned is produced. S. 103 indicates, however, that it is not the duty 
of the deputy returning officer to look in the defaulters' list unless ob- 
jection is made. If it is made he must refer to the defaulters' list. There 
is no provision for swearing with respect to this matter. The defaulters' 
list is not given any finality excepting so far as it gets this character 
from s. 59, but the deputy returning officer has no discretion and must 
refuse the vote unless the certificate is produced and left. Probably s. 59 
makes the defaulters' list Conclusive as to disqualification. 

Soratiny. — A judge holding a scrutiny under this Act may go behind 
the list to inquire if a tenant, whose name is on the list, has the residential 
qualifications entitling him to vote : West Lome Scrutiny, 23 O. L. R. 598 ; 
25 O. L. R. 267 ; 26 O. L. R. 339 : 47 S. 0. R. 451. 

There is jurisdiction under this Act to investigate the voter's qualifica- 
tion, so long as it does not conflict with the finality of the lists certified 
under the Act. The judge has jurisdiction to investigate as to whether or 
not, in a given ease, the right to vote, finally and absolutely certified by 
the list, was subsequently so exercised as to constitute the ballot deposited, 
a legal vote : Aurora Scrutiny, 28 O. L. R. 475. 

60. The Clerk of the municipality shall not be entitled 
to vote except to give a casting vote as provided by s. 127. 
3 Edw. VII. c. 19, s. 179 (2), amended; 3 & 4 Geo. V. c. 43, 
s. 60. 

For a discussion of the various changes in the law as to the right of 
the clerk to vote, see Re Schumacher and Ohesley, 1910, 21 O. L. R. 522. 

As to Tight of clerk to vote in local option contests, see notes s. 270 
below. 

Casting vote at municipal elections, s. 127. 

61. — (1) No person shall be entitled to vote who, at 
any time, before or during the election, has been em- 
ployed as oounsel, agent, solicitor or clerk or in any other 
capacity by a candidate or by any other person at or in 
reference to, or for the purpose of forwarding the elec- 
tion, and who has received or expects to receive, either 
before, during or after the election, from any candidate 
or from any other person, for acting in such capacity, 
any money, fee, office, place or employment, or any pro- 
mise, pledge or security therefor. 

(2) S.-s. 1 shall not apply to a person who performs 
any official duty in connection with the election and who 
receives the fees therefor to Which he is entitled. New. 
See 5 Edw. VII. c. 22, s. 8; 8 Edw. VII. c. 3, s. 13 (2-3) ; 
3 & 4 Geo. V. c. 43, s. 61. 

Employment of the kinds referred to is impliedly authorized by this 
section. By the provisions of s. 173 (3) a vote given by a person dis- 
qualified under this section must be deducted from the votes cast for the 
candidate on behalf of whom the voter was employed. 



90 KLUCTION AFTER CHANGE OE BOUNDARIES. 

As to paying canvassers and agents sge Part V. mfra, p. 90, and 
R. ex rel. Sabourin v. Berthiaume, 1913, 4 O. W. N. 1201, 24 O. W. R. 
559, 11 D. L. R. 68 and li. ex rel. Fitzgerald v. Stapleford, 1913, 29 0. 
L. R. at 136. 

In view of the extreme generality of s.-s. (1), it is necessary to make 
provision enabling deputy returning ofiRcers, poll clerks, constables or 
others who are within s.-s. (1) to vote. 

See Election Act- R. S. O. 1914, c. 8, s. 13, 

Paying a voter to act as scrutineer is not per se a corrupt practice: 
R. ex rel. Fitzgerald v. Stapleford,, 29 O. L. R. 133. 

62. WHere territory has been annexed to an urban 
municipality, or a toAvn with additional territory erected 
into a city, or a village with additional territory erected 
into a town, or a new town or village erected, and an 
election takes place before a voters' list including the 
names of the persons entitled to vote in such territory, 
or for the new town or village, is certified by the Judge, 
all persons who would have been qualified as municipal 
electors if such addition had not been made or the new 
town or village erected, shall be entitled to vote in the 
city, town or village at such election. 3 Edw. VII. c. i9, 
s. 91 ; 5 Edw. VII. c. 25, s. 2, amended; 3 & 4 Geo. V. c. 
43, s. 62. 

This section refers to voting at a municipal election. As to voting 
on a by-law see s. 270. 

In effect the last certified lists in which the names appear are to be 
taken as the proper lists. 

As to the preparation of a list in the cases mentioned in this sec s. 93. 

In R. ex rel. Taberner v. Wilson 1888, 12 P. R. 546, the territory 
was separated from a township after Nomination Day but before the day 
of voting in the township. It was held that the persons in the separated 
area were debarred from voting in the township under s. 89 of the then 
Act now superseded by s. 66. 

Nomination Meeting. 

63. Subject to s.-s. 4 of s. 64 and to s. 73 a meeting of 
the electors shall take place for the nomination of candi- 
dates for mayor, controllers, water commissioners, and 
seAverage commissioners, in cities and towns, and of reeve 
or reeve and deputy reeve or deputy reeves in towns, at 
the hall of the municipalit}^ annually on the last Monday 
in December, at ten 6 'clock in the forenoon. 3 Edw. VII. 
c. 19, s. 118 (1) ; 6 Edw. VII. c. 35, s. 7, amended; 3 & 4 
Geo. V. c. 43, s. 63. 

When an Election Commences. — It has been repeatedly held that 
an election commences with the day of nomination. The polling day is 



.TIME AND EliACB OF NOMINATION MEETING. 91 

but an adjournmenfof'the jaection. A candidate must therefore be quali- 
fied "to be elected" on no'mination day. R. ex rel. Rollo v. Beard, 1865, 
3 P: R; 357 ; R. ex rel. Adamson v. Boyd, 1868, 4 P. R. 204 ; R. ex rel. 
Clancy v. Mcintosh, 1881. 46 U. C. R. 105 ; R. ex rel. Taverner v. Wilson, 
1888, 12 P. R. 546; R. ex rel. Zimmerman v. Steele, 1903, 5 O. L. R. 565; 
R. ex rd. O'Donnell vl Broomfield, 1903, 5 O. L. R. 603; Harford v. 
Lynskey, 1899, 1 Q. B. 852 ; 68 L. J. Q. B. 599. 

64.— (1) Suloject to s.-ss. 3 to 6, and to s. 73, a meeting 
of the electors shall take place for the nomination of 
candidates for aldermen in cities and councillors in towns, 
to be elected by general vote, and for reeves, deputy 
reeves and councillors in villages and townships, annually 
at noon, on the last Monday in December, at the hall of 
the municipality, or at such place therein as may from 
time to time be fixed by by-law. 

(2) Where the election of aldermen or councillors is 
by wards the meeting shall be held annually at noon on 
the last Monday in December at such places in each ward 
as may from time to time be fixed by by-law, but the 
council of a town divided into wards may provide that 
the meeting for the nomination of candidates for coun- 
cillors for the wards shall foe held at the same time and 
place as the nomination for mayor. 3 Edw. VII. e. 19, 
ss. 118 (2), 119; 6 Edw. VII. c. 35, s. 8, amended. 

[Note. — Old s. 119a struck out, being covered hy s. 
73.] 

(3) The council of a city may by by-law fixing the 
places for the nomination of candidates for aldermen, 

•provide that the hour of nomination shall be half -past 
seven o 'clock in the afternoon, 

(4) The council of a town or village may by by-law 
provide that the meeting for the nomination of all candi- 
dates may be held at half -past seven o'clock in the after- 
noon, and any such by-law shall remain in force from 
year to year until it is repealed. 3 Edw. VII. c. 19, s. 120 ; 
6 Edw. VII. c. 35, s. 9, amended; 9 Geo. V. c. 46, s. 3. 

(5) The council of a township may by by-law provide 
that the meeting for the nomination of all candidates 
shall be held at one o 'clock in the afternoon. 3 Edw. VII. 
c. 19, s. 122; 6 Edw. VII. c. 35, s. 10. 



93 TIME AND PLACE OF NOMIlfATION MEETING. 

(6) Where a toAvnship adjoins an urban municipality, 
that municipality may be designated as the place oif 
meeting for the nomination of all candidates. 3 Edw. 
VII. c. 19, s. 123 ; 6 Edw. VII. c. 35, s. 11 ; 3 & 4 Geo. V. c. 
43, s. 64. 

[Note. — Old s. 125, providing that the county council 
might fix the 3rd Monday preceding the polling day as 
nomination day in townships, struck out, as the ohject of 
the section when enacted was probably to prevent nomin- 
ation for county and local councils being held on the same 
day. The section is now no longer required.] 

65. The nomination meeting shall be held on the day 
fixed for it by or under the authority of this Act, except 
where it is Christmas Day, and in that case the meettag 
shall be held on the preceding Friday. 3 Edw. VII. c. 19, 
s. 124; 6 Edw. VII. c. 35, s. 12,- amended; 3 & 4 Geo. V. c. 
43, s. 65. 

66. Where the incorporation of a new municipality 
takes effect on the 31st day of December as provided by 
section 31, the nomination and all proceedings incidental 
thereto and to the holding of the election on the 1st Mon- 
day of the January following may be had and taken as if 
the incorporation had taken effect. New. 3 & 4 Geo. V. 
c. 43, s. 66. 

Sec. 66. — ^This section in part corresponds with s. 96 of R. S. 0. 
1897, c. 223, originally s. 89 of 55 V., c. 42, discussed in R. ex rel. Taver- 
ner v. Wilson, 1888, 6 P. R. 546 on the point formerly included in the 
section of the effect of the addition of territory to a municipality so far as 
an election pending the addition is concerned. 

The annexation of territory to an urban municipality does not result 
in the incorporation of a new municipality. See s. 62. 

See notes to s. 193. The council is not the .corporation as it i^ under 
some acts. If for any reason, elections are not held or the election of all 
members is declared invalid under s. 175, then this section will apply. 

Members of Council. — ^This expression includes a Mayor, Controller, 
Reeve and Deputy Reeve as well as Aldermen and Councillors with the 
assent of the electors. See s. 263. 

This provision recognizes that the nomination meeting is part of the 
election. A township nomination meeting can be held in an adjoining 
urban municipality when designated by by-law. 

This would apply to a nomination meeting which is part of the elec- 
tion and may result in a complete election. 



PEOCEBDINGS AT NOMINATION MEETINGS 93 

67. The returning officer shall give at least six days' 
notice of the nomination meeting. 3 Edw. VII. c. 19, s. 
127;3&4Geo.V. C.43, s. 67. 



Sec. 67. — In calculating " at least six days " both terminal 
must 'be excluded. See article on " Time." 

Howes v. Turner, 1876, 1 C. P. D. 670; 45 L. J. C. P. 550 was a 
case under s.-s. 1 of 38 and 39 V. c. 40 (Imp.) dealing with notice of 
nomination, which read as follows : " Nine days at least before any such 
election, the Town Clerk shall prepare, sign and publish a notice, etc." 

The Clerk issued a notice only six days before the election. It was 
held that the notice was so defective as to mislead one of the candidates 
and probably the constituency and as consequently there could be no free 
election, the election was void. 

Ten O'clock. — Time. See the definition of Time Act, R. S. O. 
1904, c. 182. 

Etx>ots as to tbe time and place of holding nomination 
meetings.— In Jl. exi rel. Warr v. Walsh, 1903, 5 O. L. R. 268, Mere- 
dith, C.J.C.P., expressed the opinion, with the reservation that he had 
not fully considered the matter as it was jiot necessary in the view he took 
to consider it, that errors as to time and place of holding where no in- 
justice has been done to any elector are not fatal to an election Was 
that it probably could be saved under s. 204 (now 150). 

Refusal to notice a Nomination. — In Haverfordwest Election 
case, Davis V. Kensington, 1874, L. R. 9 C. P. 723, 43 L. J. C. P. 370, 
the returning oflicer refused to notice a nomination for a wrong reason 
as it turned out, and returned the names of the other candidates duly 
elected and the election was held void. 

68. — (1) At all nomination meetings, the candidates 
for each office shall be proposed and seconded seriatim, 
and every nomination shall be in writing, shall state the 
name, residence and occupation of the. candidate, and 
shall be signed by his proposer and seconder, and filed 
with the returning officer Avlthin one hour from the time 
fixed for holding the meeting. 3 Edw. VII. c. 19, s. 128. 
(1) Amended. 

(2) Failure to comply with the provisions of s.-s. 1 
shall not invalidate the nomination if it is received and 
acted on by the returning officer. New. Without obli- 
gation. 

(3) If no more candidates are nominated for an office 
than are to be elected, the returning officer, after the 
lapse of one hour from the time fixed for holding the 
meeting, shall declare such candidate duly elected. 

(4) If more' candidates are nominated for an office 
,than are to be elected, the returning officer shall adjourn 



94 DECLAEATlON' BY -CANDIDATES. 

the proceedings until the first Monday in January next 
thereafter, when, unless there is an election by reason o£ 
the resignation of any candidate or candidates nomin- 
ated, as in the next succeeding section provided, polls 
shall be opened in each ward or polling subdivision at 
such place or places as have been fixed by by-law. 3 Edw. 
VII. c 19, s. 128 (2-3), ammded; 3 & 4 Geo. V. c. 43, s. 68. 

[Note. — S. 128 (4) covered hy new s. 101.] 

69. — (1) The returning officer shall,. on the day of the 
nomination, post up in the office of the clerk the names of 
the persons nominated for the respective offices. 

(2) At the nomination meeting or at any time before 
nine o'clock in the afternoon of the following day, or, if 
that day is a holiday, before noon of the succeeding day, 
any person nominated for one or more offices may resign, 
or may elect for which office he is to remain nominated; 
and in default he shall be deemed to be nominated for the 
office for which he was first nominated. 

(3) Where he resigns after the nomination meeting 
the resignation shall be in writing, signed by him and 
attested by a witness, and shall be delivered to the clerk 
within the time hereinbefore mentioned. 3 Edw. VII. c. 
19, s. 129 (1-3), amended. 

Form of withdrawal by candidate after nomination, Biggar, p. 154'; also' 
form of election where candidate nominated for two or more offices, and 
elects for which he will Tun. 

(4) In an urban municipality every candidate for any 
municipal office, including that of water commissioner, 
and sewerage commissioner, shall on nomination day, or 
before nine o'clock in the afternoon of the following. day, 
or if that day is a holiday before noon of the succeeding 
day, file in the office of the clerk a declaration, Form 2. 
3 Edw. VII. c. 19, s. 129 (3a), first part; 4 Edw. VII. c. 22, 
S.4; 6 Edw. VII. c. 35, s. 14; 9 Edw. VII. c. 73, s. 4; 1 Geo. 
V. e. 57, s. 2, amended. 

_ Besignation or Withdrawal by Candidate. — A candidate may 
resign as such and no consent from proposer or seconder is required. 

If a candidate is nominated for more than one office he must elect' 
within the time limit or the first nomination only will stand. 



DUTY OF EETUENING OFFICER. 95 

Duty of Betupning OfiScer as to Nominations. — He should 
record all nominations shewing candidate's proposer and seconder in a 
book or record as received and the time when received, as this may become 
material, s. 69 (2), and there is no reason the electors present should not 
be allowed to inspect the record or the original nominations for the pur- 
pose of ascertaining whether or not objections can be validly made. In 
addition nominations should be announced as received. Anything which 
tended to conceal the fact of a nomination having been made or by whom 
made might bring the returning officer within the rule in R. ex rel. 
Corbett v. Jull, suprw. The recoi'd should also contain a note of any elec- 
tion made by a candidate who has been nominated for more than one 
office or who has resigned. As such election or resignation can be made 
verbally at the nomination meeting, the returning officer should be par- 
ticular with regard to them. A resignation of election if not made by a 
candidate in person or in writing signed by him, should not be accepted. 
S. 69 (3) indicates the care to be taken with resignations in order to be 
certain that they are authentic. In any event if there is any doubt, the 
returning officer will be wise to keep the name on the list until the time 
mentioned in s. 69 (4) has elapsed without the filing of a declaration. He 
certainly should do this if the resignation under s. 69 (3) is not attested 
as required. On the other hand an election by a candidate need not be in 
writing or attested but it should be made by the candidate in person, and 
the returning officer would be wise to require a writing, though he cannot 
insist on it. The record should be kept throughout the period within 
which resignation or election is permitted. After the period elapses the 
remaining names if the number exceeds the number to be elected, must be 
printed on the ballot papers, s. 86. There is no provision for resignation, 
retirement or withdrawal : s. 70 seems to contemplate a retirement by 
candidates. This must refer to a retirement after nomination and before 
the result of the polling is declared, otherwise it would not be a retirement 
by a candidate. It is significant that the word " retire" is used in s. 70 
while the word " resign " is used in s. 69. In the absence of any authority 
in the Act enabling the returning officer to take notice of retirements 
or resignations after the period mentioned in s. 69 has elapsed, it is sub- 
mitted that s. 70 refers to resignations under s. 69 which have the effect of 
leaving offices without candidates, or without candidates to the number to 
be elected. Where, therefore, a candidate retires after the period mentioned 
in s. 69 or dies, there is no provision for withdrawing his name or counter- 
manding the poll which became necessary at the termination of the period 
named in s. 69. If such candidate is elected and he persists in refusing 
to act, it is the duty of the council to declare the seat vacant, s. 152, and 
the candidate becomes liable to the penalty provided in s. 244. 

If a candidate dies before election, a difficult situation arises which is 
unprovided for. This case is provided for in the Ballot Act, 18Y2, 35 and 
36 v., c. 33 (Imp.), s. 1 which requires the returning officer to counter- 
mand a poll in such a case and if he does not do so, a peremptory mandamus 
so to do will be granted. See R. v. Stewart, [1898] 1 Q. B. 552 ; 67 L. J. 
Q. B. 421. 

In Pothard v. Clarke, 1879, 5 C. P. D. 253; 49 L. J. C. P. 474, a 
misstatement of the number of the seconder on the list Contrary to statu- 
tory provisions, was held fatal to a nomination paper. Grove, J., saying : 
" I can see many reasons why it should be intended that these require- 
ments are to be strictly followed," and Lopes, J., concurred. 

On the other hand in Martin v. Gorrill, 1889, 23 Q. B. D. 139 ; 58 L. 
J. Q. B. 329, the omission of the name of the electoral division in a nom- 
ination paper, was held not to vitiate it. 

In B. v. Deighton, 1844, 5 Q. B. 896, giving a candidate's place of 
business instead of his residence as required by the statute in that case 
was held fatal. 

In Hobbs v. Morey, [1904] 1 K. B. 74 ; 73 L. 'J. K. B. 47, a person 
was nominated who was in fact disqualified to be elected and to be a coun- 
cillor though this did not appear from the nomination paper." He obtained 
a majority of the votes. The unsuccessful candidate filed a petition claim- 
ing the seat. Kennedy, J., held this nomination a " valid nomination " 
within the English Rules " because formally valid on the face of it " and 
although it constituted a nomination of a person in fact disqualified for 



96 NOMINATION PAPERS. 

being elected, the election had to proceed and the matter could only be 
reviewed on a petition. 

Duty of Returning Officer with respect to Nomination 
Papers. — ^Th"e requirements of s.-s. 1 as to nomination papers at a time 
when there was no provision corresponding to s.-s. 2 were held by Boyd, C 
in R. ex rel. Walton v. Freeborn, 1901, 2 O. L. R. at 168 to be' directory 
but not for that reason to be wilfuUy slighted or disregarded. In that 
case the returning officer after the nomination meeting came to the con- 
clusion that all nomination papers which did not contain the full . names 
of the candidates were to be regarded as nullities and he accordingly de- 
clared certain candidates elected by acclamation. Boyd, C, ordering a new 
election, discussed the facts as follows : 

" When at the time attention is called to the omission in the par- 
ticulars required, or objection is raised by the' presiding officer to the 
reception of informal papers, — if those interested refuse to amend, 
it may well be the duty of the officer to enforce the law and not 
accept such paper, and inform the meeting that the person nominated 
was not legally a candidate. But here everything was treated as 
regular. The candidates were called forward to address the meeting, 
and the ratepayers present representing the constituency returned to 
their homes satisfied that the choice of officers for the year would be 
determined by the ballot at the poll. This state of affairs should 
therefore be restored as far as possible, and the judgment directing 
that the election be held is affirmed with costs." 

In the early case of R. ex rel. Corbett v, Jull, 1869, 5 P. R. 41, the 
presiding officer tricked the electors present into thinking they had ample 
time to make further nominations and before they made a desired nomina- 
tion suddenly declared nominations closed. A new election was ordered 
and the returning officer was ordered to pay costg. 

In Todd V. Mager, 1912, 22 M. R. 136 O. A., the returning officer 
after nomination assumed to reject a nomination because the candidate 
was as he claimed disqualified and he declared the other candidate elected: 
it was held that his action was clearly illegal and that he had no power 
whatever to decide such a question, following Pritchard v. Bangor, 1888, 13 
App. Gas. 241; 57 L. J. Q. B. 313. 

The Third Schedule Part ii. of the Municipal Corporations Act, 1882, 
45 and 46 V., c. 50 (Imp.), contains 18 rules as to the nomination of 
councillors. The decisions under these rules have been frequently applied 
in Canada. The rules provide for objections being made to the validity 
of nominations and that the mayor is to decide upon the objections, and 
any decision of his disallowing an objection is made final. Notwithstand- 
ing this provision it has been held that he cannot disallow an objection 
which it is not within his jurisdiction to entertain under 67 (2). The 
returning officer is clothed with the duty of dealing with objections, and 
question arises as under the English rules as to what objections are within 
his cognisance. 

In Pritchard v. Bangor, supra, in the House of Lords, Lord Watson 
said : — 

" The function assigned to the mayor of the borough is to receive 
nominations, and to determine which of these nominations shall be 
treated, for the purposes of municipal action, as 'valid nominations' 
— that is the statutory expression. I do not think that the Legisla- 
ture ever empowered him to deal, or intended that he should deal, 
with every kind of objection which might be raised to a nomination. 
I do not think that jurisdiction is given him to dispose of such an 
objection as is alleged in the present case. The schedule to the Act 
of 1882, which contains rules, rather points to his disposing of formal 
objections arising-upon the face of the nomination paper, the duty of 
enquiring probably as to whether the paper is in shape. If no objec- 
tion is made, or if objections are stated and repelled by the mayor, 
then- the nomination becomes a valid nomination. I do not mean to 
suggest that it is final and conclusive upon questions of disClualification, 
or other similar objections which may be taken to it, but I think it 
was intended to be conclusive to this effect, that the nomination paper 



NOMINATION PAPBES. 97 

so sustained as valid, should form the basis of the election, and that 
the nominee in that paper should be treated as a person for whom 
votes could be given for the purposes of the election before the alder- 
man of the ward." 57 L. J. Q. B. 313. 

In Harford v. Lynskey, 1899, 1 Q. B. 852, 68 L. J. Q. B. 599, 
Wright, J., said : — 

" We do not understand it to be laid down in the Bangor case 
that a nomination cannot ever be rejected except for informality in 
the form or presentation of it. If the nomination paper is on the 
face of it a mere abuse of the right of nomination, or an obvious 
unreality, as, for instance, if it purported to nominate a woman or a 
deceased sovereign, there can be no doubt that it ought to be rejected, 
and no petition could be maintained in respect of its rejection." 

The returning officer should not call the attention . of candidates gen- 
erally to objections to a nomination paper : R. v. Taylor, 1895, 59 J. P. 97. 

There is no provision requiring that a candidate for a ward shall be 
nominated by an elector of that ward. 

A nomination should specify precisely the office and term for which 
the candidate is nominated, or it may be validly objected to: See Smart 
V. Sprague, 1917, 11 W. W. R. 1537. 

Apparently if a nomination paper is rejected because a proposer or 
seconder is not qualified, a new proposer or seconder should not sign it 
except in the presence of and with the assent of the other: Harmon v. 
Park, 1881, 7 Q. B. D. 369. 

The returning officer should satisfy himself that the proposer and 
seconder are electors qualified to . nominate by reference to the proper list 
of electors, and also that in all respects the nomination complies with 
s. 68 (1), and if it does not he should at once reject- it and call the 
attention of the proposer and seconder to the rejection and the ground of it. 
He cannot reserve his objection tiU the hour is up. The hour is fixed for 
the purpose of enabling objections to be made and dealt with, and appar- 
ently in the light of s. 68 (2) any nomination, if received and acted on 
without objection during the hour, is not to be held invalid because of 
non-compliance with s. 68 (1). Without a provision such as s. 68 (2) 
the requirements of s. 68 (1) would probably be deemed imperative. In 
Two Mountains Election Case (Dom.), 1913, 47 &. C. R. 185, a nomina- 
tion paper which did not give the candidate's residence and description as 
required was held to have been validly rejected by the returning officer. 
Davies, J., considered the English municipal cases to outline principles 
which could control Courts in deciding upon statutes relating to elections. 

Dnty of Retuming Officer iiritli Respect to Declarations of 
Qualification. — The requirement as to declarations of qualification was 
first enacted in 1900. It imposes a new duty on candidates not previ- 
ously required and should therefore be strictly construed : Re IngersoU, 
Sray v. IngersoU, 1888, 16 O. B. 194, followed by B. ex rel. Armstrong v. 
Garratt, 1907, 14 O. L. E. at 397. 

In R. ex rel. Martin v. Watson, 1906, 11 O. L. R. 336, the declara- 
tion was untrue because the deponent was not qualified upon the property 
specified therein, but was qualified in respect of other property. A motion 
to unseat him was dismissed, Teetzel, J., saying: — i • 

" The first declaration being on its tace sufficient in form, and 
having in view its limited purpose, and the respondent being in fact 
duly qualified for the election and having been elected, I think it is 
too late, after the election, to contend that the missta,tement regarding 
the qualifying property mentioned in the first declaration is a_ ground 
for setting aside the election, which is otherwise free from objection." 

In B. es rel. Cavers v. Kelly, 1906, 7 O. W. R. 280, 600, the declara- 
tions of successful candidates were not made before one of the persons 

M.A, — 7 



98 DECLAEATION OF QUALIFICATION. 

specified in old s. 315 (now as amended s. 243), and the Master in Cham- 
bers held them unobjectionable, applying old s. 204 (now 150). See also 
R. ex rel. Milligan v. Harrison, 11 O. W. R. 554 ; 16 O.' L. R. 475. 

In R. ex rel. Armstrong v. Garratt, 1907, 14 O. L. R. 395, a declara- 
tion was made some time prior to nomination day by a prospective candi- 
date, and was filed by a supporter as required by the Act. On a motion 
to set aside his election, it was pointed out that the Act was silent as to 
when the declaration was to be made.' The Court refused to read the 
section so strictly as to hold that the requirement was that the declara- 
tion should be both made and filed after the nomination and within the 
time limited for filing. MacBeth, C.C.J., made the following valuable 
obsfervations which were approved on appeal : — 

" It seems to be clear that his (the presiding ofiicer's) duties 
under this section ought to be held as far as possible to be minis- 
terial rather than judicial. ... If the declaration tendered on 
behalf of a candidate be made after the final revision of the assess- 
ment roll upon which the candidate must be qualified, if it avers the 
possession of the necessary property, specifying the property, and if 
such averment be corroborated by the last revised assessment roll, I 
think the city clerk should file the declaration and place the candi- 
date's name on the ballot paper. . . . and if the city clerk has 
any doubt he should certainly decide in favour of the certificate. I 
may add that I am by no means sure that his action in this respect 
is open to question in these proceedings." 

Section 129 (3o) of Consolidated Municipal Act, 1903, required a 
statutory declaration where s. 69 (4) simply requires a declaration. For 
discussion of the supposed difference, see R. ex rel. Milligan v. Harrison, 
1908, 16 O. L. R. at 477. 

The omission from the declaration of the statements that the candi- 
date is not a citizen or subject of any foreign country, and in respect of 
the estate upon which he qualifies is fatal and cannot be cured by s. 150, 
and such candidates though elected must be deemed to have resigned : The 
Master in Chambers, R. ex rel. O'Shea v. Letherby, 1908, 16 O. L. R. 582. 

Note the power to rectify declarations required under s. 193 discussed 
in the above case. 

Sec. 69 (1). — This provision has been held to be directory only: 
R. es rel. Walker v. Mitchell, 1868, 4 P. R. 218, where a name was 
omitted from a list of candidates by accident and not inserted till after 
polling had commenced, whereby a candidate lost at least five votes, but 
not sufficient to affect the result. 



FOEM 2. 

Declaeation of Qualification by Candidate. 

I, A. B., declare xthat 

1. I am a British subject by birth {or naturalization), and not a 
citizen or subject of any foreign country. 

2. I have to my own use and benefit in my own right (or my wife 
has, as the case may 6e) as owner {or tenant, as the case may ie), 
such estate as qualifies me for the office of {naming the office) for which 
I am a candidate (a),, (d). 

3. Such estate is {state the nature of the estate as u, legal estate of 
freehold or otherwise, as the case may 6e) in 

{designate the land hy its local description or otherwise). 

4. The land is assessed in my own name {or in the name of my 
wife, as the case may he) on the last revised assessment roll of this 
municipality at the sum of ? (6) which exceeds by at least $ the 
amount of all liens, charges and encumbrances thereon (c). 

5. I am not liable for any arrears of taxes to the corporation of this 
municipality. 



FOEM OF DECLAKATION. 99 

6. There are no arrears of taxes against the land in respect of which 
I qualify. 

Declared before me at 
the day of A. B. 

19 

(o) Where the candidate qualifies under s.-s. 2 of s. 52, suhstitute 
for paragraphs 2 and 4 i'^e folloxoing : 

2. I had to my own use and benefit (or my wife had as the ease may 
5e), as owner (or tenant, as the case may 6e), at the time of the return 
of the last assessment roll of this municipality such an estate in land rated 
on that assessment roll in my own name or in the name of my wife as the 
case may he, as would have qualified me for the office of (naming it). 

4. I have (or my wife has, as the case may he), an estate in land 
(descrihing it) assessed on the last revised assessment roll of this munici- 
pality for $ , which exceeds by at least $■ the amount of all 

liens, charges and encumbrances thereof, and is sufficient to qualify me 
for. such -office if I (or my wife, as the case may he), had been assessed 
for it. ( 

(6) Where the candidate qualifies on a leasehold estate omit the 
remainder of this paragraph. 

(c) Where the candidate qualifies under clause (e) of s.-s. 1 of s. 52, 
suhstitute for paragraph 4 the following : — 

4. The land is assessed in my own name (or in the name of my wife, 
OS the case may he) on the last revised assessment roll of this municipality 
for at least $2,000, and I am in actual occupation of such land. 

(d) In the ease of a person elected as a member of a township council 
substitute for the words " for which I am a candidate " the words " to 
which I was elected" and change paragraphs 2, 5 and 6 so as to refer to 
the time of the election. 

3 & 4' Geo. V. c. 43, Form 2', amended; 7 Geo. V. c. 42, 
s. 24. 

(5) Where a candidate is unable on account of illness 
or absence from the municipality to make the declaration 
or to file it within the time prescribed by s.-s. 4, and he 
appears by the last revised assessment roll to be qualified 
to be elected, the declaration of any person who has and 
states in the declaration that he has knowledge of the 
facts, that the inability exists and the nature of it and 
that he has reason to believe and does believe that the 
candidate possesses the qualification prescribed for the 
office for which he has been nominated and that if elected 
he will accept the office may be filed in lieu of the declara- 
tion of the candidate. New. 

(6) If one or other of such declarations is not filed 
within the time mentioned in s.-s. 4, the candidate in de- 
fault shall be deemed to have resigned, and his iiame shall 
be removed from the list of candidates and shall not be 
printed on the ballot paper. 3 Edw. VII. c. 19, s. 129 
(3a), last part amended. 



100 NEW ELECTION WHERE INSUFFICIENT NUMBEE ELECTED. 

(7) If by reason of resignations the number of candi- 
dates remaining for any office does not exceed the number 
to be elected the returning officer, whether the event hap- 
pens on or after nomination day, shall declare the re- 
maining candidate or candidates duly elected. 3 Edw. 
VII. c. 19, s. 129 (4), amended. 

(8) On the day following the nomination day, the re- 
turning officer for each ward shall certify to the clerk th:) 
result of the meeting. New. 3 & 4 Geo. V. c. 43, s. 69 
(1-8). 

70. — (1) Where the candidates, or any of them, retire, 
and by reason of such retirement or where from any 
other cause the requisite number of persons is not elected, 
the members elected, if they equal or exceed one-half of 
the council when complete, or a majority of such mem- 
bers, shall order a new election to be held to fill the 
vacancies. 3 Edw. VII. c. 19, s. 180. 

(2) Where less than half the members of the coun- 
cil are elected, the clerk shall cause a new election to be 
held; and until such election is held, and the council is 
elected, the council of the preceding year shall continue 
in office. 3 Edw. VII. e. 19, s. 131. 

(3) The new election shall be held as soon as practic- 
able. 3 Edw. VII. c. 19, s. 131a; 3 & 4 Geo.V. c. 43, s. 70 
(1-3). 

Sec. 70. — A warrant to hold such an election is not expressly re- 
quired as is the case in s. 156. Nevertheless there should he some auth- 
ority to the returning officer, deputy returning officers and poll clerks to 
evidence their appointment and their authority to act and the time and 
place vphere the election is to be held. According to Meredith, C.J., in 
R. ex rel. Bawkes v. Letherby, 1808, 17 O. L. R. 309, the Act itself is 
sufficient authority for the holding of the election and it is only in the 
case of subsequent vacancies that'the electors are to be brought together 
by the issue of a warrant. 

See. 70 — From any Other Cause. — For example, where the elec- 
tion of all is adjudged invalid or all are declared to have forfeited their 
seats in proceedings under Part IV., see s. 175, and possibly in the case 
of _ death after nomination and before election. The section refers to a 
failure to elect not to vacancies arising subsequent to election. 

Sec. 70-^The Clerk stall Cause a New Election to be Held.— 

That is, he should call a new nomination meeting giving notice as 
required by s. 67. If a poll is necessary, it should be held on the 9th 
day following, or if that is a Sunday, on the 10th day following, in order 



"i.-^. 



ini. '^f 



DUTY OF ELECTION. ■ \.,^_^ IQl; 

to give at least the time which the Legislature has deemed aiaafissafy 
between nomination and polling. 

71. Except in the case of the first election provided 
for by-ss. 24 and 27 and suibject to s. 73 the electors of 
every local municipality shall elect, annually on the first 
Monday in January, although it is a holiday, the mem- 
bers of council, the water commissioners, and the sewer- 
age commissioners who are to be elected, except such as 
have been elected at the nomination. 3 Edw. VII. c. 19, 
s. 95, first part amended. 3 & 4 Geo. V. c. 43, s. 71. 

For postponement in case of epidemics : See Public Health Act, R. S. O. 
1914, c. 218, s. 116. 

72. — (1) The members of a council shall hold office 
until their successors are elected and the new council is 
organized. 3 Edw. VII. c. 19, s. 95, last part. 

(2) The members of a board of water commissioners 
and sewerage conamissioners shall hold office until their 
■ successors are elected and the new board is organized. 
New. 3 & 4 Geo. V. c. 43, s. 72 (1-2). 

73. The council of a local municipality may, by by-law 
.passed not later in the year than the 15th day of No- 
vember, provide that the meeting of electors for the 
nomination of candidates for Mayor, Controllers, Alder- 
men, Eeeves, Deputy Eeeves, Councillors, and in urban 
municipalities the Public School Board and the Board of 
Education shall be held on the 23rd day of December, 
except where that day is a Saturday or a Sunday, and in 
that case on the preceding Friday^ and that the polling 
shall take place on the 1st day of January next there- 
after, except where that day is a Sunday, and in that case 
on the following day, and the by-law shall remain in 
force from year to year until repealed. 3 Edw. VII, c. 19, 
s. 95a; 5 Edw. VII. e. 22, s. 2, amended; 3 & 4 Geo. V. 
c. 43, s. 73; 4 Geo. V- c. 33, s. 4; 5 Geo. V. c. 34, s. 12; 
9 Geo. V. c. 46, s. 4. 

74. The council of a local municipality may by by-law 
passed with the assent of the municipal electors, extend 



103 PBOCEDUEE WHEEE DISQUALIFIED PERSON NOMIITATED. 

the term of office of the members of the council to be 
thereafter elected to two years, and may with the like 
assent repeal such by-law. 6 Edw. YII. c. 34, s. 4, 
amended; 3 & 4 Geo. V. c. 43, s. 74. 

[Note. — Old s. 96 as to first election in new munici- 
pality struck out as covered by new s's. 31 and 66; old s. 
97 as to polling places struck out as covered hy new s. 79; 
old s. 98 as to place of holding first election where junior 
toivnship separated from a union, struck out as covered 
hy new s. SI}. 

75. Subject to s.-s. 6 of s. 64 the election shall be held 
in the municipality. 3 Edw. VII. c. 19, s. 104; 3 & 4 Geo. 
V. c. 43, s. 75. 

76. An election shall not be held in a tavern or in 
a house of public entertainment licensed to sell spirituous 
or fermented liquors. 3 Edw. VII. c. 19, s. 105 ; 3 & 4 Geo. 
V. c. 43, s. 76. 

Frocednre irlien Disqualified Person is Nominated. — If the dis- 
qualification is patent in that it appears by reference to the list and the 
nomination paper, objection should be made to the returning officer; if he 
disallows the objection or if the disqualification is by reason of some fact, 
such as interest in a contract with the corporation, the proper course, if a 
candidate wishes to claim the seat, is to notify publicly at the nomination 
meeting and at the election that votes given to the disqualified candidate 
will be thrown away. As to necessity for notice that votes are being 
thrown away, see Hobbs v. Morey, supra, and, among earlier cases, R. v. 
Hawkins, 1808, 10 East 211 ; R. v. Bridge, 1813, 1 M. & S. 76 ; Olaridge 
V. Evelyn, 1821, 5 Rondall 81 ; Gosling v. Veley, 1847, 7 Q. B. 406 ; R. v. 
Tewksbury, 1868, L. R. 3 Q. B. 629; 37 L. J. Q. B. 288. 

In Beresford-Hope v. Lady Sandhurst, 1889, 23 Q. B. D. 79; 58 L. J. 
Q. B. 316 (C.A.), where a woman was nominated and declared elected a 
member of a county council, Coleridge, C.J., on appeal, said: — 

" The incapacity of the candidate who received the majority of 
the votes, which was one of status, must have been known to every 
one who voted for her, because there existed a fact — namely, her 
sex — to which the law annexed that incapacity; and it has been laid 
down in the case of Drinkwater v. Deakin, 1874, L. B. 5 C. P. 626, 
43 L. J. C. P. 355, that if the fact which creates the incapacity 
exists, and is known to exist, the votes given for the candidate are 
thrown away." 

In Ontario, R. ex rel. Hervey v. Scott, 1851, 2 C. L. Oh. 88 ; R. ex rel. 
Dexter v. Gowan, 1853, 1 P. R. 104 ; R. ex rel. Coleman v. O'Hare, 1855, 
2 P. R: 18 ; R. ex rel. Tinning v. Edgar, 1867, 4 P. R. 36; R. ex rel. Adam- 
son V. Boyd, 1868, 4 P. R. 204 ; R. ex rel. Ford v. McBae, 1870, 5 P. R. 309 ; 
E. ex rel. McGuire v. Birkett, 1891, 21 O. R. 162, where the effect of the 
notice was offset by a resolution of council and the relator was not given 
the seat, it was held that by going to tihe polls after giving notice of dis- 
qualification, a candidate waives his right to the seat : R. ex rel. Forward 



NOTICE OF DISQUALIFICATION. 103 

v. Detlor, 1868, 4 P. R. 198, but the English eases cited above did not sup- 
port this view. 

Notice of Disqualification. — In R. ex rel. Zimmerman v. Steele, 
1903, 5 O. L. R. 565, notices were posted up at five out of twelve polling 
places. Falconbridge, C.J.K.B., held this not sufficient, refused to give the 
seat to the relator and ordered a new election. 

No notice was given in R. es rel. O'Donnell v. Broomfield, 1903, 
5 O. L. R. 596; in R. ex rel. Robinson v. McOarty, 1903, 5 O. L. R. 638, 
the Master seemed to think that notice of disqualification ought to have 
been given at the nomination meeting so that the electors might have an 
opportunity of nominating another candidate. 

The notice should be signed by a responsible party . and give the 
ground of disqualification and be given publicly by publication in news- 
papers and by posting up and if known at the time of nomination, notice 
should be given then. 

FORM OF NOTICE. 

City of Toronto Election of Mayor for Year 1917. 

Notice to Electoes. 

John Smith, who has been nominated as a candidate for mayor of the 
City of Toronto for the year 1917, is disqualified to be elected and to sit 
by reason of the fact that . . . (state ground). 

All electors are warned that if they vote for the said John Smith, 
as mayor, their votes will be thrown away. 

(Sgd.) A. B., 

Candidate for Mayor. 

Compelling Returning Officer to Enter Name on Iiist of 
Nominations. — If a returning officer in breach of his duty or improperly 
allows an invalid objection and omits a candidate's name from the list of 
candidates, a peremptory mandamus will be granted on motion to compel 
him. to include the name. 

If, however, he has declared a candidate elected, the election is at an 
end, and he is functus officio, and the only proceedings which can be taken 
are by s. 186, under Part IV. 

R. V. Casey, 1914, L. R. 2 Ir. 243. In the BaUot Act as applied to 
municipal elections, there is a provision that the returning officer, upon the 
death of a candidate, shall countermand the poll. A prerogative writ of 
mandamus was granted peremptorily staying the election : R. v. Stewart, 
[1898] 1 Q. B. 552; 67 L. J. Q. B. 421. 

In Mather v. Brown, 1875, C. P. D. 596, 45 L. J. C. P. 547, an 
initial was held not sufficient where the Act required " name and other 
names." Coleridge, C.J., said : — 

" The objection is a technical one, but as it ' has been properly 
taken and at a time when it could be cured, it is valid. In constru- 
ing these Acts, a duty with which this Court is entrusted, we are 
bound to keep strictly to the Acts themselves; they are a political 
compromise between the parties and the Legislature, and we who are 
entrusted with jurisdiction, feel it safer to keep strictly within them, 
and therefore, though I give this decision with reluctance, I give it 
without hesitation." 

In R. V. Casey, [1914] 2 Ir. R. 243, K. B. D., a candidate for elec-' 
tion as rural district councillor, described himself in his nominatioti paper 
as Michael B. Walsh, the name in which he appeared in the register of 
voters and which he always assumed and signed in transactions requiring 
his signature. His mother's name was Barry, and he had added the 
initial " B " to the Christian name Michael to distinguish him from others 
in the district named Michael Walsh. The deputy returning officer re- 
jected the nomination paper on the ground that it did not comply with 



104 APPOINTMENT OF ELECTION OFEIOIALB. 

the rule which required the surname and other names to Be set out in 
full. It was held that, under the circumstances, the name of the candi- 
date was properly stated in accordance with the rule, and that. a peremp- 
tory writ of mandamus should issue to the deputy returning officer direct- 
ing him to include the prosecutor's name in the list of candidates validly 
nominated. Compare with Mather v. Brown, supra. 

77. — (1) The council of every local nmnicipality iu 
which the election is by wards, or polling suh-divisions, 
shall from time to time appoint : — 

{a) The places for holding the nominations for each 
ward; 

(6) A returning officer to hold the nominations for 
each ward ; 

(c) The places at which polls shall be opened if a poU 
is required; 

{d) A deputy returning officer and a poll clerk for 
each polling sub-division. 3 Edw. VII. c. 19, s. 
106 (1), amended. 

(2) In a city having a population of not less than 
100,000 the returning officers, deputy returning officers, 
and poll clerks shall be appointed on the recommendation 
of the clerk, and such appointments shall be made at least 
one month before polling day, and as far as practicable 
the deputy returning officers and poll clerks shall be ap- 
pointed for polling places in the sub-divisions in which 
they reside. 5 Edw. VII. c. 22, s. 4 ; 6 Edw. VII. c. 34, s. 
5, amended. 

(3) If a poll clerk signifies to the returning officer in 
writing that he will not act, the returning officer shall 
appoint another person to act in his place. 

(4) If a poll clerk does not attend at the opening of 
the poll the deputy returning officer shall appoint another 
person to act in his place. 8 Edw. VII. c. 48, s. 3, 
amended. 

(5) The clerk shall be the returning officer for the 
whole municipality ; and if a poll is required, the deputy- 
returning officers shall make to him the returns for their 



CLEEK TO BE EBTUENING OFPlCEB EOE MUNICIPALITY. 105 

respective wards or polling sub-divisions. 3 Edw. VII. 
c. 19, s. 106 (2) ; 3 & 4 G-eo. V. c. 43, s. 77 (1-5). 

See. 77 (1). — Disregard of these prescribed formalities commented 
upon: Re Eickey and Marlborough, 14 O. L. R. 587, at p. 590. 

Sub-see. (Id). — That A deputy returning officer is a strong advocate 
for the passing of a by-law is not a disqualifying circumstance : Re North 
Gfower L. O., 24 O. W. R. 489 ; 25 O. W. R. 224 ; 5 O. W. N. 249, and see 
Re Duncan and Midland, 16 O. L. R. 132. 

Sub-sec. (3).— See Le Boutillier v. Harper, 1 Q. L. R. 4. 

78.— (1) In a local mnnicipality which is not divided 
into polling sub-divisions, the clerk, or such person as the 
council may appoint to act in the absence of the clerk 
through illness or otherwise, sTiall be the returning offi- 
cer for the nomination of candidates. 3 Edw. VII. c. 19, 
s. 107, amended; 9 Geo. V. c. 46, s. 5. 

(2) The council shall from time to time appoint the 
place at which the poll shall be opened if a poll is 
required. New. 3 & 4 Geo. V. c. 43, s. 78 (1-2). 

79. — (1) Where a by-law to appoint the place for 
holding any meeting required to be held for the nomina- 
tion of candidates is necessary and the council fails to 
pass it the meeting shall be held at the place at which 
the nomination for the next preceding election was held., 

(2) Where the council fails to appoint all or any of 
the places at which a poll is to be opened if a poll is re- 
quired, as to such of them as are not appointed, the polls 
shall be opened at the place or places at which the polling 
took place at the next preceding election. New. See 3 
Edw. VII. c. 19, s. 97; 3 & 4 Geo. V. c. 43, s. 79 (1-2). 

80. — (1) Where the returning officer for any ward" 
does not attend at the time and place appointed by the 
clerk to receive his instructions and nomination papers, 
or where a deputy returning officer does not attend at the 
time and place at which he is required by the clerk to 
attend to receive his voters' lists, and other election 
papers, the clerk shall appoint another person to act in 
his place. 



106 FAILDEB OF ELECTION OFFICIAL TO ACT. 

(2) If at the time and place appointed for holding a 
nomination the returning officer- does not attend to hold 
the nomination within fifteen niimites after the time ap- 
pointed or if no returning officer has been appointed, the 
electors present at the place for holding the nomination 
may choose from amongst themselves a returning of&cer 
to hold the nomination. 

(3) If at the time and place appointed for holding the 
poll the deputy returning officer does not attend within 
one hour after the time appointed, the clerk shall appoint 
another person to act in his place and shall furnish him 
with a ballot box, voters ' lists and other election papers. 

(4) In a city having a population of not less than 
100,000 the electors shall not choose a deputy returning 
officer unless a poll clerk has not been appointed or if 
appointed is not present, but the poll clerk shall act as 
deputy returning officer and he shall appoint some other 
person to be poll clerk. 3 Edw. VII. c. 19, s. 108 (l-2>; 5 
Edw. VII. c. 22, s. 5, amended. 

(5) If, during the polling, the returning officer or the 
deputy returning officer at a polling place becomes unable, 
through illness or other cause, to perform his duties, the 
poll clerk shall act in his place and shall perform all the 
duties of a returning officer or deputy returning officer, 
and may appoint some other person to act as poll clerk. 
3 Edw. VII. c. 19, ,s. 108 (3), amended; 3 & 4 Geo. V. c. 43, 
s. 80 (1-5). 

81. — (1) A returning officer and a deputy returning 
officer from the time he takes the oath of office until the 
day after the close of the election or of the voting on a 
by-law shall be a conservator of the peace and shall have 
all the powers of a Justice of the Peacte. New. See 8 
Edw. VII. c. 3, s. 153. 

(2) A returning officer, a deputy returning officer or a 
Justice of the Peace may arrest or, by a verbal ordef, 
cause to be arrested and placed in the custody of a con- 
stable or of any other person, a person who disturbs the 



PEESEETING THE PEACE AT ELECTIONS. 107 

peace and good order, and may cause such person to be 
imprisoned under an order signed by him until an hour 
not later .than the closing of the nomination, polling or 
voting as the case may be, and all constables and persons 
present when required shall assist the returning officer, 
deputy returning officer or Justice of the Peace in the per- 
formance of his duties under this sub-section. New. See 
8 Bdw. VII. c. 3, ss. 154, 156; 3 & 4 Geo. V. c. 43, s. 81 
(1-2). 

Ontario Elections Act, R. S. O. 1914, c. 8, ss. 153, 154, 156. 

82. A returning officer, a deputy returning officer, or 
a Justice of the Peace may appoint and swear in as many 
special constables to assist in the preservation of the 
peace and order as he may deem necessary ; and any per- 
~son liable to serve as constable, and required by a return- 
ing officer, a deputy returning officer, or a justice, to be 
sworn in as a special constable, if he refuses to be sworn 
in or to serve, shall incur a penalty of $20. 3 Edw. VII. 
c. 19, s. 110, amended. 3 & 4 Geo. V. c. 43, s. 82. 

Appointment of Places for Nomination Meetings, Polling 
Places and Election Officers. — Part XIX of the Act provides that 
polling subdivisions and polling places are to be provided by by-law, and in 
that connection s. 394 provides that if the building appointed cannot be 
obtained or is found unsuitable, the clerk may select the nearest suitable 
building. The provisions of Part XIX. ' cover the case mentioned in 
s. 77 (le). It would therefore appear that the power of apuointment 
given to the council by s. 77 should be exercised by by-law, although it is 
significant that in s. 64 it is expressly stated that arrangement? for the 
holding of the nomination meetings therein mentioned shall be made by 
by-law. This view is confirmed by the provisions of s. 249 (1), which 
require the powers of the council to be exercised by by-law. These re- 
marks apply also to s. 78 (2). In case the council fails to act, s. 79 
applies so far as nomination meetings are concerned. If deputy -eturning 
oflicers fail to act, the clerk must appoint substitutes under s. 80, and if 
poll clerks fail to act, the deputy returning officers under s. 77 (4) must 
appoint substitutes. The matters to be dealt with by the council under 
s. 77 (1) and s. 78 (2) are important and should not be dealt with in- 
formally or by resolution. It is of the utmost importance that experienced 
and capable persons be appointed, who are fully qualified to exercise both 
the judicial and ministerial functions which are to be exercised by elec- 
tion officers under the Act. This is probably the reason for requiring that 
appointment shall be made on the recommendation of the clerk. It should 
also be borne in mind that deputy returning officers are Conservators of 
the Peace, and have all the powers of Justices of the Peace, s. 81 (1), and 
that, in cases of emergency, they may cause persons to be arrested by 
verbal order and imprisoned, s. 81 (2), and that they may require persons 
to serve as constables, s. 82. Moreover, in cities having a population of. 
not less than 100,000, poU clerks may be required to act as deputy return- 
ing officers and have the power to appoint substitute poll clei-ks : s. 80 (4) 
and (5). 

Note, — ^There appears to be no provision to meet the case where the 
council has not appointed a place for nomination meeting and where the 



108 SECEECT OF THE POLL. 

place at which the nomination for the preceding election was held, Is not 
available. 

A Conservator of the Peace 'with all the Foirers of a Jnstice 
of the Peace. — The office of Justice of the Peace originated in the early 
office of Conservator of the Peace." The general duty of the Conservators 
of the Peace by the common law, is to employ their own, and to command 
the help of others, to arrest and pacify all such who, within their juris- 
diction and limits, shall go about to break the peace:" 3 Burn's Justice- 4. 

In England, the ancient office of Conservator of the Peace was en- 
trusted to certain persons appointed by the King, and to others elected 
by the people. The authority of such Conservators varied according to 
the nature of their office. Judges of the Common Pleas were Conserva- 
tors of the Peace within the limits of their Courts, while Judges of the 
King's Bench were Conservators of the Peace for the whole kingdom. 
It is submitted that returning officers and deputy returning officers are, by 
s. 1, not made Justices of the Peace for the time being, but are simply 
entrusted with the duty of preserving the peace within and about polling 
places, and for this specific purpose have all the powers of Justices of 
the Peace. iSections 81 (2) and 82 probably do not add to the powers 
given by s. 81 (1) . See subject " Justice of the Peace." 

Defective Arrangement of Voting Compartments. — If the 

secrecy of the poll is in fact violated by reason of the defective nature o£ 
the compartments for voting or the absence of such compartments, it will 
be a ground for voiding an election. Secrecy is one of the fundamental 
principles of the Act : The Drogheda Election Case, 1874, 2 O'M. & H. 203. 
In Ee Dillon and Cardinal, 1905, 10 O. L. R. 371, the absence of 
voting compartments was not fatal to a voting on a by-law, but there a 
constable kept all persons away from the part of the room where the 
ballots were marked. 

Ballot Boxes. 

83. — (1) Where a poll is required, the clerk shall pro- 
cure as many ballot boxes as there are polling sub-divi- 
sions. 

(2) The ballot boxes shall be made of durable ma- 
terial, provided vs^ith lock and key, and so constructed that 
the ballot papers can be deposited therein and cannot be 
v^ithdravra. vs^ithout unlocking the box. 

(3) Tvs^o days at least before polling day the clerk 
shall deliver a ballot box to every deputy returning officer. 

(4) The ballot boxes, vphen returned to the clerk after 
the election, shall be preserved by him for use at future 
elections; and he shall have ready for use, at all times, 
as many ballot boxes as there are polling sub-divisions. 

(5) If the clerk fails to provide ballot boxes he shall 
incur a penalty of $100 in respect of every ballot box 
which he fails to provide. 



BALLOT BOXES BALLOT PAPERS. 109 

(6) A deputy returning officer who has not been pro- 
vided with a ballot box within the time prescribed, shall 
forthwith procure one to be made, and he may make a 
requisition upon the treasurer for payment of the cost of 
it, and the treasurer shall pay the same to the deputy 
returning officer. 3 Edw. VII. c. 19, s. 138, amended; 3 & 
4 Geo. V. e. 43, s. 83 (1-6). 

Ballot boxes may be used for a municipal election and for voting on by- 
laws at the same time : In re Duncan and Midland, 1907, 16 O. L. E. 132 
C. A. 

In the Hackney Election Case, 1874, 2 O'M. & H. 77, an election was 
held void because certain ballot boxes were not supplied at all and others 
were supplied late in the day. See also the Drogheda Case, 1874, 2 O'M. 
& H. 201. 

Form of ballot box : Re Wilson and Wardsville, 2 O. W. N. 914. 

Ballot Papers. 

84. Where a poll is required, the clerk shall forthwith 
cause to be printed a sufficient number of ballot papers 
for the purposes of the election. 3 Edw. VII. c. 19, s. 139 
(1). 3 & 4 Geo. V. c. 43, s. 84. 

85. — (1) In cities and towns in which the aldermen or 
councillors are elected by wards, there shall be prepared 
one set of ballot papers for all the polling sub-divisions 
containing the names of the candidates for mayor, an- 
other set for all the polling sub-divisions containing the 
names of the candidates for reeve or reeve and deputy 
reeves, and another set for each ward containing the 
names of the candidates for aldermen or councillors for 
the ward. 3 Edw. VII. c. 19, s. 140 (1) ; 6 Edw. VII. c. 35, 
s. 15, amended. 

(2) In cities and towns where the aldermen or coun- 
cillors are elected by general vote, there shall be prepared 
for aU the polling sub-divisions one set of ballot papers 
containing the names of the candidates for mayor or 
mayor and reeve or mayor, reeve and deputy reeves, and 
another set containing the names of the candidates for 
aldermen or councillors. 3 Edw. VII. c. 19, s. 140 (2) ; 
6 Edw. VII. c. 35, s. 16, amended. 



110 



BALLOT PAPEE FOE CITIES AND TOWNS. 



FORM 3. 

Ballot Paper foe Cities and Towns. 



FoEM FOR Mayor. 




.S a ;= m 






o = 



V3 .a .a ^ 'S -a 



ALLAH. 

Charles Allan, of King Street, in the Oity 
of Toronto, Merchant. 



BROWN. 

William Brown, of the City of Toronto, 
Banker. 



Form for Reeve and Deputy Reeve in Towns. 



.2^ - 



S a = 
S o Sf . 

H .5 



ij o !?; o 






CLITHEROE, 

Albert Clitheroe. of the Town of Gait, 
Baker. 



HTTGHES. 

David Hughes, of the Town of Gait, Tin- 
smith. 



as 



FARQUHARSON. 

Robin Farquharson, of the Town of Gait, 
Builder. 



MacPHERSON. 

Roderick MacPherson, of the Town of 
Gait, Printer. 



6 Edw. VII. c. 35, s. 35', Sdhed. Form 1. 3 & 4 Geo. V. c. 43, Form 3. 
Form for Aldermen or Councillors. 




o 0-2.0 



M-. a !>. -1-3 

■§ 2 S o > ^ 

U X3 .C hr "^ ™ 



W 



^5~ 

i 



ARGO. 

James Argo, of the City of Toronto, 
Gentleman. 



BAKER. 

Samuel Baker, of the City of Toronto 
Baker. ', 



DUNCAN. 

Robert Duncan, of the City of Toronto, 
Printer. 



3 & 4 Geo. V. c. 43, Form 4. 

[Ib the case of cities and towns where the Aldermen or OounciUors are 
elected by general vote the form above given is to be adopted to suit the case.] 



BALLOT PAPER FOE TOWNSHIPS. 



Ill 



FORM 5. 

Ballot Paper for Townships. 




AXLSOPP. 

Albert "Allsopp, of the Township of York, 
Brewer. 



BURTON. 

Henry Burton, of the Township of York, 
Farmer. 



BANKS. 

John Banks, of the Township of York, 
Blacksmith. 



CAIDWEIL. 

Henry Caldwell, cif the Township of York, 
Market Gardener. 



CONNOR. 

Patrick Connor, of the Township of York, 
Cattle Dealer. 



DAVIDSON. 

Thomas Davidson, of the Township of 
York, Milkman. 

EDWARDS. 

Daniel Edwards, of the Township of York, 
MiUer, 



FERGUSON. 

George Ferguson, of the Township of 
York, Nurseryman. 

BRITTON. 

James Biitton, of the Township of York, 
Farmer. 

LLOYD. 

David liloyd, lof the Township of York, 
Farmer. 

MACDONALD. 

Philip Maodonald, of the Township of 
York, Agent. 

O'LEARY. 

Dennis O'J.eary, of the 'J'ownship of York, 
Farmer. 



6 Edw. VII. c. 35, s. 35, Sdied. Form 2. 3 & 4 Geo. V. c. 43, Form 5. 



113 SBPAEATE SETS OF BALLOT PAPERS. 

Note. — Where the election is to fill a vacancy, the 
ballot papers are to contain only so much of the form as is 
required; and the counterfoils shall bear, instead of the 
words appearing on the form, the words "Election of 

, to fill a vacancy in the office of , 

Ward No , Polling sub-division No.. . . ., day of , 

19...'' 

Where controllers, or commissioners, or members of 
the Board of Education are to be elected, the ballot 
papers are to be similar in form. 

(4) There shall also be separate sets of ballot papers 
for controllers, water commissioners, street railway com- 
missioners and sewerage commissioners. New. 

(3) In villages and townships there shall be prepared 
one set of ballot papers containing the names of the candi- 
dates for reeve and deputy reeves and for councillors. 3 
Edw. VII. c. 19, s. 140 (3) ; 6 Edw. VII. c. 35, s. 17, 
amended. a 

(4) There shall also be separate sets of ballot papers 
for controllers, water commissioners, street railway com- 
missioners and sewerage commissioners. New. 3 & 4 
Geo. V. c. 43, s. 85 (1-4). 



BALLOT PAPEKS POK VILLAGES. 



113 



FORM 4. 
Ballot Paper for Villages. 



^ I 3 



I ll I 



Mi 



I 



eS o 

.2" (^ 



a 



■5 o >; 

« s g 

B » "g 

2 -a 

S *= >, 

O £i c3 

^ -S 13 



^ 



o 



a; 
o 

>~) 

5 

o 



BROWN. 

John Brown, of the Village of Weston, 
Merchant. 



ROBINSON. 

George Bobinson, of the Village of Weston, 
Physician. 



BULL. 

John Bull, of the Village of Weston, 
Butcher. 



JONES. 

Morgan Jones, of the Village of Weston, 
Grocer. 



McAllister. 

AUister McAllister, of the Village of 
Weston, Tailor. 



O'CONNELL. 

Patrick O'Oonnell, of the Village of 
Weston, Milkman. 



3 Edw. VII. c. 19, Sched. A., part. 

86. The ballot papers shall be according to Forms 3, 4, 
or 5, and shall contain the names of the candidates ar 
ranged alphabetically in the order of their surnames, or if 
there are two or more candidates for the same office with 
the same sur-name, in the order of their Christian names. 
3 Edw. VII. c. 19, s. 141 (9.) ; 7 Edw. VII. c. 40, s. 3, 
amended. 3 & 4 Geo. V. c. 43, s. 86. 

[Ss. 142, M3 repealed hy 6 Edw. VII. c. 35,.s. 34.\ 

Candidate's Name Appearing T-nrice on Ballot Paper. — ^This 
occurred in Northcote v. Pulsford, 18.75, L. K. 10 C. P. 476, 44 L. J. O. P.. 
217, where Northcote was nominated twice and his name appeared twice 
on the ballot paper ; he, being described in the first instance as of Bont- 
ford Street, Barnstaple, gentleman, and in the second instance as of South 
Street, Bishop's Tawton, land agent. 71 \oters marked opposite the 
name where it first appeared, 301 voters marked opposite the name where 
it next appeared, and the remaining candidates received the following 
votes resppctivrfy : 8, 14, 339 {Pulsford) 372 and 508. The two highest 



M.A. — 8 



114 DEFECTS IN BALLOT PAPEES. 

and Pulsford were declared elected ; Northeote filing a petition, claiming 
to be entitled to be declared elected instead of Pulsford, and his con- 
tention was upheld on the ground that the mistake was in the use of the 
form and did not affect the result of the election and was accordingly cured 
by s. 13 of the Ballot Act. See notes to s. 150, supra. 

Deviations from Forms. — Deviations not affecting the substance 
are within the curative effect of provisions of s. 150, infra, if the result has 
not been affected. The word " shall," in s. 86 at any rate, is not imperative 
but directory. Section 28 (d) of the Interpretation Act provides "where 
forms are prescribed, deviations therefrom not affecting the substance or 
calculated to mislead, shall not vitiate them." For discussion, see Re 
Giles and Almonte, 1910, 21 O. L. R. 362 D. C, but note the doubts of 
Middleton, J. It may be that the papers used are not ballot papers at all, 
and that a Judge on a recount or on proceedings under Part IV. would be 
unable to recognize any of them as ballot papers. For example, if the 
papers by inadvertence omitted to state the election in connection with 
which the ballot papers were to be used, see notes to ss. 116, 129, 271 and 
279 and Part XI. 

Literal compliance with the statute is not essential, but there must be 
at least substantial compliance, and the ballot used must, be the sub- 
stantial equivalent of the one prescribed by statute It is fatal to contend 
that the one used was as good or better than the statutory form : Murdock 
V. Kilgour, 1914, 7 O. W. N. 165, 19 D. L. R. 878. 

Omission of Candidate's Name from Ballot Paper. — In R. ex 

rel. T^'^alker v. Mitchell, 1868, 4 P. R. 218, candidate's name was omitted 
from the list which was submitted to the electors at a poll, at a time 
when there was open voting. The omitted name was added at about 2 
o'clock in the afternoon. Wilson, J., upheld the election on the ground that 
it did not appear that the result would have been different if the name had 
been properly entered on the list. In R. ex rel. Harris v. Bradburn, 1876, 
6 P. R. 308, certain names were omitted from the ballot papers which 
should have been included. Harrison, O.J., found that the omission of the 
name was not shewn to have in any manner affected the result of the 
election, as the candidate whose name was omitted, had desired to have his 
name removed and the relator's application was dismissed on that and 
other grounds. 

Improper Inclusion of Name of Candidate irho has Resigned. 

—In Wilson v. Ingham, 1895, 64 L. J. Q. B. 775, the ballot paper by 
mistake included the name of " M," who had withdrawn as permitted by 
the rules. There were four councillors to be elected, and in all six names 
appeared on the ballot. The four highest candidates received 243, 235; 
132 and 129 votes respectively. The next candidate received 128 votes 
and " M " received 34 votes. The four highest were declared elected. It 
was held that the election was not protected by the curative provisions of 
s. 13 of the Ballot Act) 1872. Compare s. 150, supra. The election 
of the two lowest candidates was declared void. Wilson, J., said : " It is 
impossible to say that the result of the election was not affected by the 
name of the candidate who had withdrawn, being placed upon the ballot 
paper." The placing of the name of the person who is not a candidate 
upon the paper is a violation of the Ballot Act, and it cannot be said 
that it did not affect the result of the election, but note that s. 150, supra, 
now places the onus on a relator to shew that the result was affected by 
the mistake, and that no voter can be asked or is allowed to state for 
whom he voted, and it would be impossible, if such a mistake was made 
under the Ontario Act, to shew that the result was not affected. 

Materials Necessary to Mark. — It was held that the use of a 
pencil in marking a ballot was not essential to the validity of the vote, 
" because the use of a pencil was not positively enjoined by the statute, 
and because the only positive and direct enactment on the subject is to 
the effect merely that the clerk shall furnish materials necessary but 
which are not specified : Wigtown Election Case, 2 0''M. & H. 226. 

" A good cross with any pencil, or with any ink, not peculiar, seems 
unoihjeotionable : Wigtown Election Case, 2 O'M. & H. 226. 

Mark made with pen and ink, instead of pencil, allowed as good vote : 
H. E. C. 725. 



COMPAETMENTS FOE YOTEKS. 115 

87. Before opening the poll, the clerk shall deliver to 
every deputy returning officer the ballot papers for use in 
tl^e polling subdivision for which he has been appointed 
and shall furnish him with materials necessary to enable 
voters to mark their ballot papers, and such materials 
shall be kept at the polling place by the deputy returning 
officer for the use of voters. 3 Edw. VII. c. 19, s. 44, 
amended. 3 & 4 Geo. V. c. 43, s. 87. 

In re Shaw and Portage la Prairie, 1910, 20 M. R. 469, 14 W. L. R. 
542, a poll at a voting on a by-law was not opened until 10 o'clock and 
another until 11 o'clock, the proper hour being 9 o'clock, it not being 
shewn that the result was affected, and it appearing that the opening was 
prevented by weather conditions, Mathers, C.J.K.B., held the irregularity 
not to be fatal, but in Re Hatch and Oakland, 1910, 19 M. R. 692, the 
same Judge held the deliberate closing of a poll frpm 12.10 to 1.20 was 
fatal though there was no evidence that any person was deprived of his 
vote by reason of the closing of the poll, although there was evidence 
that a sufficient number of voters to change the result might have been 
deprived of their franchise. (Note the curative section of the Slanitoba 
Act which is to the same effect as s. 150 before amendment.) 

Irregular closing, late opening : Limerick Election Case, 1833, P. & D. 
373 ; Horwich, 1851, 1 P. R. & D. 314 ; The Drogheda Case, 1874, 2 O'M. 
& H. 201 ; East Clare, 1892, 4 O'M. & H. 162 ; Gribben. v. Kirker, 1873, 
Ir. R. 7 C. L. 30 ; Islington; 1901, 5 O'M. & H. 120. 

88. Every polling place shall be furnished with a com- 
partment in which the voters can mark their ballot papers 
screened from observation, and if it is not provided by 
the corporation the deputy returning officer shall furnish 
it, and the cost of it shall be repaid to him as provided by 
s.-s. 6 of s. 83. 3 Edw. VII. c. 19, s. 145, amended. 3 & 4 
Geo. V. c. 43, s. 88. 

Voting Compartments. — In re Quigley and Bastard, 1911, 24 O. 
Ii. R. 622 C. A. A voting compartment in a harness shop consisted of 
three horse blankets pinned together, and the owner of the shop remained 
in it all day and could hear how illiterate voters directed their ballots to 
be marked. Another voting compartment was simply a platform 10 feet 
by 40 feet and 2. feet high, part of a hall 40 feet by 60 feet. The body 
of the haU was allowed to be filled by voters without restriction, and many 
came near to the deputy returning officer's table and could hear the man- 
ner in which illiterate voters directed their ballots to be marked. Riddell, 
J., in the Court of Appeal, discussing these polling places, said : — 

" These irregularities are, in themselves, as it seems to me, suffi- 
cient to justify the judgment appealed from. 

" It is plain that ' the Act has been framed with great care to 
provide for the compulsory secrecy of the ballot and the amplest oppor- 
tunity for each voter to express his judgment:' Re Hickey and Town 
of OriUia, 17 O. L. R. 317, at p. 340 ; and that ' in an election involv- 
ing a social question, complete secrecy is of the very greatest im- 
portance:' 17 O. Ii. R. at p. 342. In the case of illiterates, it is true 
that they must disclose to certain persons how they vote, but these 
persons are oath-bound not to disclose this, and the secrecy is as great 
as is practicable — there is no justification for compelling the illiter- 
ate to disclose to any one not so bound how he desires to vote. It may 
be — ^it is not proved that it is not — the case that every one of the 
illiterates was adverse to the by-law, and voted for it because he 



116 DIRECTIONS TO VOTEES. 

knew that the manner in which he voted might become public. The 
onus of supporting a by-law under s. 204 is upon those setting up 
that section, and they must shew that the irregularity did not affect 
the result of the election : 17 O. L. R. at p. 342." 

The by-law was accordingly quashed, but now note that s. 204 
referred to has been amended, casting the onus on the applicants. It is 
submitted that secrecy is one of the principles of the Act, and its absence 
is not a mere irregularity. See notes to s. 150. 

Directions to Voters. 

89. The clerk shall cause to be printed in conspicuous 
type a sufficient number of the directions for the guidance 
of voters, Form 6, for the purposes of the election, and 
shall deliver to every deputy returning officer as many of 
the printed directions, but not less than five, as the clerk 
may deem sufficient. 3 Edw. VII. c. 19, s. 146, amended. 
3 & 4 Geo. V. c. 43, s. 89. 



FORM 6. 

Directions for the Guidance of Voters in Voting. 

The voter will go into one of the compartments, and with the pencil 
provided in the compartment, place a cross, thus X on the right hand side, 
opposite the name or names of the candidate or candidates for whom he 
votes or at any other place within the division which contains the name or 
names of such candidate or candidaites. 

The voter will fold up the ballot paper so as to show the name or 
initials of the Deputy Returning Officer (or Returning Officer, as the case 
may be) signed on the back, and leaving the compartment will, without 
showing the front of the paper to any person, deliver such ballot paper so 
folded to the Deputy Returning Officer (or Returning Officer, as the case 
may he) and forthwith quit the polling place. 

If the voter inadvertently spoils a ballot paper, he may return it to 
the Deputy Returning Officer (or Returning Officer, as the case may 6e) 
who will if satisfied of such inadvertence, give him another ballot paper. 

If the voter votes for more candidates for any office than he is 
entitled to vote for, bis ballot paper will be void as far as relates to that 
office, and will not be counted for any of the candidates for that office. 

If ithe voter places any mark on his ballot paper by whicTi he may 
afterwards be identified, or if the ballot paper has been torn, defaced, or 
otherwise dealt with by the voter so that he can thereby be identified, it 
will be void, and will not be counted. 

If the voter takes a ballot paper out of the polling place, or deposits 
in the ballot box any other paper than the one given to him by the Officer, 
he will be subject to imprisonment for any term not exceeding 6 months, 
with or without hard labour. 3 Edw. VII., c. 19, Sched. B, part. 

In the following forms of ballot paper, given for illustration, the candi- 
dates are, for Mayor, Jacob Thompson and Robert Walker; for Reeve, 
George Jones and John Smith ; tor Deputy Reeve, Thomas Brown and 
William Davis ; for Councillors, John Bull, Morgan Jones, Allister Mc- 
Allister and Patrick O'Connell ;, and the elector has marked the first ballot 
paper in favour of Jacob Thompson for Mayor, the second ballot paper in 
favour of George Jones for Reeve, the third ballot paper in favour of 
William Davis for Deputy Reeve, and the fourth ballot paper in favour of 
John Bull and Patrick O'Connell for Councillors. 



DIRECTIONS TO VOTERS. 



Ill 





ar; .•■>> 








■S 3 ^ 




THOMPSON 




a § 








C ftO OS 


i 


Jacob Thompson, of the Town of 




Barrie, Merchant, V 




u5 ■>> 


^ 








^^ l§ 


i 


WAIKER 




tion 
the 
the 
ard 
Jan 


Robert Walker, of the Town of 




j-s-s^-s 




Barrie, Physician. 


6 « *^ 


H - 



















1 a 




JONES 






So o> 










SI'S -^ 


,^ 


George Jones, of the Town of 


X 






Barrie, Barrister. 




"'3 ts 


E^ 








■^■3 g 

t< 3 d i 


SSI 












.2§^z4 


S 


SMITH 






sill's ° 


fc, 








lect 
of t 
oil ( 
Wa 
day 




John Smith, of the Tcwn of 


Barrie, 












fA 

























BROWN 






So oi 

0)^ rH 


Thomas Brown, of the Town of 






sa" t; 


Barrie, Grocer. 






"■•S § 


!^ 








^■-3 3 


s 












■2§^|4 


s 


DAVIS 






Qja-t:^ = 


<^ 








lecti 
of t 
cilc 
Wa 
day 


^ 


William Davis, of the Town of 
Barrie, Jeweller. 


X 




H 


fe. 

















a a a 
a a a 

a a a 

« « 

tt P fi 

a a a 




Election for the Menibe.s of the Municipal Coun- 
cil of the of , Ward Mo. Poll- 
ing Sub-division No. 

day of January, 19 . 


'■0 

o 


BUTT, 

John Bull, of the Town of 
Barrio, Butcher. 


X 


JONES 

Morgan Jones, of the Town of 
Barrie, (jlrooer. 


McAllister 

AUister McAllister, of the Town 
Barrie, Tailor. 


of 


O'CONNELL 

Patrick O'Connell, of the Town 
of Barrie, Milkman . 


X 



3 & 4 Geo. V. c. 43, Form 6. 



118 , DIRECTIONS TO VOTEES. 

Directions to Voters. — In Re Salter and Beckwith, 1902, 4 O. Ii. R. 

51, the failure to post up directions for the guidance of voters on a 
by-law was discussed by Britton, J., as follows : — 

" The objection that directions to voters, according to Schedule 
'.h,' as required by the Municipal Act, R. S. O. 1897, c. 223, ss, 142, 
352, were not furnished to the deputy returning officers is important. 
It is not pretended that this was done. Mr. Maclaren contends, 1st, 
that no harm was done, because if there had been, it would be evi- 
denced by spoiled ballots. I hardly think that is the test. Voters are 
entitled to the information and direction which the statute provides, 
and ballots may have been wrongly marked and counted, although in 
no way spoiled. 

" 2ud, that this is a mistake cured by s. 204. I cannot say this 
omission did not affect the result. It perhaps did not. I cannot say, 
and ought not to be called upon to say, in the absence'^ any record 
by the council of what they did or intended to do in regard to con- 
ducting the voting on this by-law in accordance with the principles 
laid down in the Act, how the result was affected." 

The by-law was quashed on the above and another ground. It is sub- 
mitted that s. 150, which has with an amendment, replaced s. 204, referred 
to by Britton J., would not lead to a different result. 

Failure to post up the directions to voters is a mere irregularity. 
See notes to s. 150. 

Sees. 89 and 90. — The provisions of these sections are directory. 
In West Gwillimbury v. Simcoe, 20 Grant 211, a by-law case, the failure 
to post up the clauses referring to bribery, was not considered a ground 
for quashing. This decision was applied to a municipal election in Re 
Brandon, 1911, 20 M. R. 705. 

For notes on form 6, see s. 106. 

90. Every deputy returning officer, before opening 
the poll, or immediately after he has received the printed 
directions from the clerk, if the same were not received 
before opening the poll, shall cause them to be placarded 
outside the polling place, and in every compartment of 
the polling place, and shall see that they remain so pla- 
carded until the close of the polling. 3 Edw. VII. c. 19, 
s. 147, amended. 

Voters' Lists, Poll Books. 

91. The pvoper list of voters to be usedat an, election 
shall be the first and second parts of the last voters' list 
certified by the Judge and delivered or transmitted to the 
Clerk of the Peace, under the Ontario Voters' Lists Act, 
with the supplementary list, if any, under h. 93 or the list 
provided for by s. 94. 3 Edw. VII. c. 19, s. 148, amended. 
3 & 4 Geo. V. c. 43, s. 91, amended. 5 Geo. V. c. 34, s. 13. 

Sec. 91— The Proper List. — See s. 57 as to the finality of the pro- 
per list. Unless a proper list is used, the whole election will be void. 
In R. ex rel. Black v. Campbell, 1909, 18 O. L. R. 269. Anglin, J., said: — 
" In my opinion, the list used was not the proper list, ■ and the 

election held upon it cannot be supported. 



PEOPEE YOTEES' LIST. 119 

" It was argued that the use of the wrong list is merely a non- 
compliance with the provisions of the Act as to the taking of the poll 
or an irregularity which should be held to be cured by the provisions 
of s. 204. In my opinion this case does not come within s. 204 (as 
amended s. 150) . The foundation of a contested election under the 
Municipal Act is the voters' list. As provided by s. 165, his right to 
vote depends upon the elector's name being entered upon the voters' 
list. If an election is held upon a list which is not a voters' list or is 
not the proper voters' list to be used, it is not, in my opinion, an 
election conducted in accordance with the principles laid down in 
the Act. 

" But if s. 204 did apply, it would be, I think, impossible to 
say that ' it appears ' to the Court ' that such non-compliance, mistake 
or irregularity did not affect the result of the election.' It was 
argued tjiat the applicant must shew that the irregularity did not 
affect the result of the election. This would involve treating the 
statute as if it read, ' if it does not appear . . . that such non- 
compliance, mistake or irregularity did affect the result of the elec- 
tion.' Although some of the cases appear to lend colour to this view 
of the provisions of s. 204, I can find no justification for so altering 
its plain language. The burden is upon the applicant to establish 
the non-compliance, mistake or irregularity; but when that is shewn 
the burden rests upon the person upholding the election to make ' it 
appear . . . that such non-compliance, mistake or irregularity did 
not affect the result of the election :' Re Hickey and Town of Orillia, 
1908, 17 O. L. r: 317, 330-1." 

Section 150 now casts on the applicant the onus of showing both the 
irregularity and that it affected the result. The last mentioned case was 
decided under s. 148, which provided that the proper list should be the 
list certified by the Judge and transmitted to the Clerk of the Peace under 
the Voters' Lists Act, and the list used had been .certified but not trans- 
mitted at the commencement of the nomination meeting though it had been 
transmitted before the polling commenced. It was argued that between 
the day of nomination and the day of election, each elector should be able 
to ascertain by enquiry at the ofBce of the Clerk of the Peace or the clerk 
of the municipality or from the County Judge, each of whom is supposed 
to have a certified copy of the voters' list in his possession, whether 
or not his name is upon the list of voters to be used at the election. In 
this connection, Anglin, J., said : — 

" I incline to think that this contention is sound, and that it is 
quite probable that the proper list to be used at the election is the 
last list of voters which has been certified by the Judge and delivered 
or transmitted to the Clerk of the Peace prior to the time of nomina- 
tion. Section 23 of the statute (Voters' Lists Act) appears to put 
it almost beyond ■ doubt that the list to be used must be completed 
before nomination day, because, even in the case of a person dying 
after revision, the Judge is permitted to .strike his name from the 
certified list only ' before the day of nomination.' It would appear 
from this provision that it was intended that the list to be used at the 
election should be complete and not subject to alteration after the time 
of nomination. 

" The statute in terms enacts that the list to be used shall be 
' the last list of voters certified by the Judge and delivered or tf ans- 
mitted to the Clerk of the Peace.' This language is plain and unequi- 
vocal. The conjunction- ' and ' may be contrasted with the conjunc- 
tion 'or ' to be found in the third line of s. 151, now as amended s. 94, 
the amendment consisted in striking out before the word ' certified,' in 
the second line, the words ' filed with the Clerk of the Peace or.' I 
think it incontrovertible that even though a list has been validly cer- 
tified by the Judge, if it has not been delivered or transmitted to the 
Clerk of the Peace, at all events before the opening of the poll on 
polling day, it cannot be ' the proper list of voters to be used at the 
election.' Section 151 (amended s^94), in my opinion, has no bear- 
ing upon the matter, because there was a list of voters certified by the 
Judge and transmitted to the Clerk of the Peace for the preceding 



120 POLL BOOK IN NEW MUNICIPALITY. • 

year, and this list was, in my opinion, the last list of voters so certi- 
fied and delivered, and, therefore, the proper list of voters to be used 
at the election." 

It is to be noted that a ministerial act, for example, the certifying of 
a list can probably be done on Sunday, but if on that day the Judge dis- 
charged judicial functions with regard to the list, what he did would be 
void : Per Anglin, J., in R. ex rel. Black v. Campbell, supra, at p. 272, ' 
also see extracts from Re Ryan and Alliston, supra. 

Carr v. North Bay, 1913, 28 O. L. R. 623, was an action for a declara- 
tion that a by-law was not legally submitted to the electors on the ground 
amongst others that as the voting was in 1912, the list for that year should 
have been used although it was not at the time of voting in existence. 
Boyd, C, reached the same conclusion as Anglin, J., in R. ex rel. Black -f. 
Campbell, supra. 

' Proper tist.'— See, also. Re West Lome, 19 O. W. R. 231, 967 ;' 
20 O. W. R. 738 ; 2 O. W. N. 1038 ; 3 O. W. N. 25, 422 ; 23 O. L. R; 598 ; 
25 O. L. R. 267, 277 ; 26 O. L. R. 339 ; 47 S. O. R. 451. 

' Proper List of Voters in Iiocal Option Contests. — See s. 268, 
below. 

92. For the first election in a new municipality for 
which there is no assessment roll, the clerk, instead of a 
voters* list, shall provide every deputy returning ofi&cer 
"with a. poll hook, Form 7, and the deputy returning officer 
or the poll clerk shall enter in it in the proper column, 
the name of every person who tenders his vote, and, at 
the request of any candidate or voter, shall note opposite 
the name of such person, the property in respect of which 
he claims to be entitled to vote. 3 Edw. VII. c. 19, s. 149. 
3 & 4 Geo. V. c. 43, s. 92. 



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123 SPECIAL AUTO SUPPLEMENTABT VOTEBS' LISX. 

93. — (1) Where a district as defined by s. 9 has been 
annexed to an urban municipality, or a town with addi- 
tional territory erected into a city, or a village with addi- 
tional territory into a town, or a new town or village is 
erected, and an election takes place before a voters' list 
including the names of the persons entitled to vote in 
such territory or for the new town or village is certified 
by the Judge, the clerk of the municipality to which the 
territory was added, and in the case of a new toAvn or 
village the returning officer shall prepare from the last 
certified voters' list of the municipality from which such 
territory, town or village was or became detached, a sup- 
plementary list of voters containing the names of and the 
other particulars relating to the persons who would have 
been entitled to vote in such territory if it had not been 
so detached. 

Duty of clerk as to the certificate of the Judge certifying list: Re Kyan 
and Alliston, 16 O. W. R. 794 ; 21 O. L. R. 582. 

(2) The supplementary list shall be signed by the 
clerk and attested by his declaration, and he shall deliver 
to every deputy returning officer a copy of so much of 
such list as relates to his polling sub-division. 3 Edw. 
VII. c. 19, s. 150, amended. 3 & 4 Geo. V. c. 43, s. 93 (1-2). 

94. In a municipality for which there is an assessment 
roll, but for which there is no voters' list certified by the 
Judge, the clerk shall, before the poll is opened, prepare 
and deliver to the deputy returning officer for every poll- 
ing sub-division, a list signed by him and attested by his 
declaration, containing the names, arranged alphabetic- 
ally, of all persons appearing by the then last revised 
assessment roll to be entitled to vote in that polling sub- 
division. 3 Edw. VII. c. 19, s. 151, amended. 3 & 4 Geo. 
V. c. 43, s. 94. 

List of Defaulters in Payment of Taxes. 

95. — (1) On or before the last Monday in December 
the treasurer of each local municipality, if the collector's 
roll has been returned to him, or the collector, if the roll 



UST OP DEPAUIilEES IN PAYMENT OF TAXES. 123 

has not been so Teturned, shall prepare and verify by his 
declaration and shall deliver to the clerk an alphabetical 
list of — 

(a) All persons entered on the first and second parts 
of the voters' list in respect of income only, who 
have not paid the taxes on such incoine on or 
before the 14th day of December next preceding 
the election; and, 

(b)^In municipalities the councils 'of which have 
passed by-laws under paragraph 9 of s. 399, all 
persons entered on the first and second parts of 
the voters' list, who have not paid all municipal 
taxes due by them on or before the 14th day of 
December next preceding the election. 

(2) Where a municipality is divided into polling sub- 
divisions, such a defaulters' list shall be made for each 
polling sub-division. 

(3) The person who prepares the defaulters ' list shalL 
furnish to all persons applying for the same, certified 
copies of it and of the declaration, in the same manner as 
and for the same compensation for which copies of the 
voters' list are to be furnished. 3 Edw. VII. c. 19, s. 137. 
3 & 4 Geo. V. c. 43, s. 95. 

96. — (1) The clerk, before the poll is opened, shall 
at a time and place appointed by him deliver to the 
deputy returning officer for every polling sub-division a 
list, either printed or written, or partly printed and' 
partly written, certified to be a correct list of voters for 
the polling sub-division, together with a blank poll book. 
Form 7, and also a copy of the proper defaulters' list 
prepared under s. 95 for the polling sub-division. 3 Edw. 
VII. e. 19, s. 152, amended. 

(2) The list of voters may be prepared by the clerk 
or may be procured from the Clerk of the Peace; and 
in the latter case the Clerk of the Peace shall be entitled 
to six cents for every ten voters whose names are on the 



124: CBBTIFICATE AS TO ASSESSMENT EOLL. 

list. 3 Edw. VII. c. 19, s. 153, amended. 3 & 4 Geo. V. c. 
43, s. 96 (1-2). 

Poll Books. — Entries in poll books are not giyen any probative 
force. See s. 103. 

Certificates as to the Assessment Roll. 

97. — (1) The clerk, before the poll is opened, shall de- 
liver to every returning officer a certificate, Form 8, of 

(a) The date of the final revision of the assessment 
roll, and 

(&) The last day for making complaints to the judge 
with respect to the voters' list to be used at the 
election. 



FORM 8. 

Cektificate as to Assessment Roll and Voteks' List. 

Election to the municipal council of the 

of 19 

I, A. B., clerk of the municipality of in the 

county of hereby certify that the assess- 

ment roll for this municipality upon which the voters' list to be used at 
this election is based was finally revised on the 

day of , 19 , and that the last day for making 

complaint to the Judge with respect to the list was the 
day of 19 

Dated this day of , 19 . 

A. B., 

[Seal.] Clerk. 

3 Edw. VII., c. 19, Sched. D. 

(2) The clerk shall also give to any person applying 
for it a like certificate upon payment of twenty-five cents. 

(3) For every contravention of s.-.s. 2 the clerk shall 
incur- a penalty of $200. 3 Edw. VII. c. 19, s. 156 (1-2), 
amended. 3 & 4 Geo. V. c. 43, s. 97 (1-3). 

Certificates to the Assessment Boll. — These are required to en- 
able the deputy returning officer to put to tenant, income and farmer's son 
voters, the oath: form 9. See is. 104. 



WHERE AND HOW OFTEN TO VOTE. 125 

In Municipalities not divided into Wards. 

98. In municipalities not divided into polling sub- 
divisions, the clerk shall perform the duties which in 
other cases are performed by deputy returning officers, 
and shall provide himself with the necessary ballot 
papers, the materials for marking ballot papers, the 
printed directions for the guidance of voters, copies 
of the voters' list, poll book and defaulters' list, and a 
certificate of the date of the final revision of the assess- 
ment roll, and the last day for making' complaints to 
the judge with respect to the voters' list; and he shall 
perform the like duties with respect to the whole munici- 
pality as are imposed upon a deputy returning officer for 
a polling sub-division. 3 Edw. VII. c. 19, s. 157, amended. 
3 & 4 Geo. V. c. 43, s. 98. ■ 

Where and how often electors may vote. 

99. — (1) An elector shall be entitled to vote, 

(a) Once only for mayor, reeve, first deputy reeve, 
second deputy reeve, third deputy reeve, water 
commissioner and sewerage commissioner; — 

(&) Where the election is by general vote once only 
for as many candidates for any office as there 
are offices to be filled and once only for each of 
them. 

(2) Where the election is by general vote and an elec- 
tor is qualified to vote in more than one ward or polling 
sub-division he shall vote only in that in which he resides 
if qualified to vote there, or if not qualified to vote there 
or if he is not a resident of the municipality, he may elect 
at which of such wards or polling sub-divisions he will 
vote and shall vote there only. > 3 Edw. VII. c. 19, s. 158 
(1). 6 Edw. VII. c. 35, S.19, amended. 

(3) Where the aldermen or councillors are elected by 
wards an elector if qualified to vote therein may vote in 
each ward for as many candidates as there are offices to 
be filled and once only for each of them. 3 Edw. VII. c. 



126 EFFECT OF VOTING TOO OFTEN". 

19, s. 158 (3) ; 6 Edw. VII. c. 35, s. 20, amended. 3 & 4 
Geo. V. c. 43, s. 99 (1-3). 

Voting Twice. — In R. ex rel. Tolmie v. Campbell, 1902, 4 O. L. R. 
25, Britton, J., said : — 

" The whole question as to the validity of election of reeve is 
narrowed to that of electors voting more than once for reeve at the 
last election. 

" 1st. As to electors other than the respondent Wmself . Appar- 
ently there was in that township a somewhat widespread impression 
that electors whose names were on the list for more than one polling 
place, could vote for reeve at each such polling place. As a matter of 
actual proof, no more than four are shewn to have voted more than 
once for reeve, but a larger number received ballot papers, and counsel 
for the relator asks me to presume, as against the respondent, that 
every elector who received a second ballot paper, after having voted, 
actually deposited it for reeve. 

"I can not do this. Section 162 of the Municipal Act pre- 
scribes a penalty for voting twice, and s.-s. 3 , of that section makes 
the act of receiving n ballot paper within the polling booth prima 
facie evidence of the elector having there and then voted. This is 
applicable in a proceeding for the penalty, and it is only prima facie 
evidence agninst the elector. It .is not evidence in a proceeding of 
this kind. Responsibility can not be faistened upon the respondent 
for it unless done' by his procurement or with his consent. Double 
voting, as complained of, is not made a corrupt practice, so that its 
commission, even by an agent of the respondent, would not ipso facto 
void the election. As the case stands, I can not say that the 
respondent has not a majority of the legal votes. I can not carry 
the case of double voting, as the law is, further than to say that 
every person who did vote more than once is liable to the penalty, and 
upon scrutiny his second vote would be struck off. Under the Eng- 
lish Corrupt Practices Act, 1883, it was sought to invalidate an 
election and the vote by attempting to make the voting twice 'per- 
sonation.' It was held in the Stepney Case, 1886, 4 O'M. & H. 44, 
by Mr. Justice Denman, that ' the first vote was not void, and that 
the voter was not guilty of any offence unless the secood vote was 
given corruptly. If the second vote was given innocently, under the 
honest belief that he was voting with a right, he could not be guilty- 
of personation.' 

" In this case, under s. 162, the voter would be liable for the 
penalty, but in other respects the argument applies. No doubt 
some of those who voted twice did so believing they had the right to 
do so. The frequent amendments to the Municipal Act may have 
caused confusion in the minds of people as to what they may or may 
not do." 

Voting in more than one ward at a municipal election by general vote 
was an indictable offence under former s. 158 (a) 1 Edw. VII. c. 26, s. 9, 
and mandamus lay to a Police Magistrate having territorial jurisdiction to 
compel him to consider and deal with an application for an information for 
such an offence: In re R. v. Meehan, 3 O. L. R. 567; see now, s. 138 (g), 
which prescribes a penalty ; see also notes s. 269, below. 

Voting more than once contrary to the provisions of s. 99, may be an 
indictable offence by reason of the fact that the section contains a prohi- 
bition, creating a new ofEence, and does not provide a particular mode of 
enforcing the prohibition which it prescribes. This consequence seems to 
follow from the prohibitions of the Criminal Code, s. 138, which declare that 

" Every man is guilty of an indictable offence, and liable to one 
year's imprisonment who, without lawful excuse, disobeys any Act of 
the Parliament of Canada, by wilfully doing any act which it forbids, 
or omitting to do any act which it requires to be done, unless some 



EFFECT OF VOTING AFTER TIME FOR CLOSING POLL. 127 

penalty is imposed or other mode of punishment is expressly provided 
by la« ;" 

and where a magistrate refused to take or receive an information for the 
offence without hearing the facts and exercising a discretion, he was com- 
pelled by mandamus to exercise his jurisdiction and compelled to consider 
and deal with an application for an information for the offence : In re 
R. V. Meehan, 1902, 3 O. L. B. 567. The application for mandamus should 
be made to a Judge sitting in single Court: In re R. v. Meehan, supra, 
p. 575. It is to be noted the consequence above mentioned was held to 
follow, notwithstanding the provisions of s. 193 (/), R. S. O. 1897, 
e. 223, but note that by s. 138 (g), which is the amended form of s. 193 (/), 
it is made an offence for a person to vote oftener than he is entitled to 
and a specific penalty is prescribed. 

Keeping Poll Open After Frescrilied Time. — The precise time 
for closing is immediately the clock has struck the first stroke of the hour. 
As to determining which course should be followed in the case of voters 
who have entered the polling station, but not voted before the hour of 
closing, in Gribbin v. Kirker, Ir. R. 7 C. L. 30, an election under the Munici- 
pal 'Oprporations Act Tvas declared void on the ground that votes were 
received after the hour for closing the poll, though the outer door of the 
house where the poll took place, was closed at the hour and no votes were 
afterwards received, except from electors who were inside before the door ' 
was closed. In this case votes were received for some time after the 
hour fixed for closing. 

Voters who have received ballot papers before the hour of closing 
ought to be permitted to mark them, even after that time, provided that 
no undue delay occurs, but ballots should not be given out after the hour 
for closing, even to voters who may have entered the polling station before 
that hour : Re Birmingham Council, L. J. R. 1883. 

No election, however, can be declared invalid by reason of non-com- 
pliance with the rules, if it appears that the election was conducted 
according to the principles of the Ballot Act, and that non-compliance has 
not affected the result. (See s. 150). 

It is probable that a deputy returning officer could be prosecuted 
criminally for wilful breach of the duties imposed on him by ss. 101-102. 
See R. V. Meehan, 1902, 3 O. L,. R. 567 ; R. v. Duroeher, 1913, 28 O. L. R. 
499. 

This section is designed to render impossible the offences enumerated 
in s. 138 (o), (/), (i) and (Ic). 

[Sec. 160 repealed by 6 Edw. VII. c. 35, s. 34.] 

100. — (1) The clerk, at the request of an elector, who 
has been appointed deputy returning officer, poll clerk, 
or agent of a candidate, for any polling place other 
than the one at which he is entitled to vote, shall give to 
such elector a certificate that he is entitled to vote at 
the polling place where he is to be stationed during, poll- 
ing day; and the certificate shall state the property or 
other qualification in respect of which he is entitled to 
vote. 

(2) On the production of the certificate such elector 
shall have-the right to vote at the polling place at which 
he is stationed instead of at the polling place at which 



128 VOTING ON CBETIFICATE. 

he would otherwise be entitled t9 vote; and the deputy 
returning officer shall attach the certificate to the voters ' 
list. 

(3) The certificate shall not entitle the elector to 
vote at such polling place unless he has been actually en- 
gaged as deputy returning officer, poll clerk, or agent 
during polling day, or to vote for aldermen in cities, or 
for councillors in municipalities divided into wards, 
except in the ward where he would otherwise be entitled 
to vote. 

(4) If a deputy returning officer votes at the polling 
place for which he has been appointed, the poll clerk, or 
in his absence any elector entitled to be present, may 
administer to the deputy returning officer the oath re- 
quired by law to be taken by voters. 3 Edw. VII. c. 19, 
s. 163, amended. 3 & 4 Geo. V. c. 43, s. 100 (1-4). 

Voting on Certificate. — In Re McGrath and Durham, 1908, 17 O. 
L. K. 514, five persons whose names were not on the voters' list, but who 
possessed the qualification entitling them to be placed on the list, obtained 
certificates from the municipal clerk as being entitled to vote because the 
clerk assumed to judge that they had been inadvertently left off the list. 
The only excuse offered by him for this was that it was in pursuance of a 
custom that had prevailed for some time, and a certain voter, though on 
the list in one division, voted in a division on the list for which his name 
did not appear, and it was conceded that the vote should be struck off 
on a motion to quash. 

In Re Schumacher and Chesley, 1910, 21 O. L. R. 522, a scrutineer 
called Durst, voted upon certificates and upon a motion to quash it was 
objected that there was no evidence that he produced his appointment at 
the opening of the poll, and that this was a condition precedent to his 
right to be present and to vote upon a certificate. Meredith, C.J.C.P., said : 

" I should have held that, in the absence of evidence to the con- 
trary, it must be assumed that, having been allowed to vote by the 
returning officer, the appointment Was presented to him at the proper 
time ; but there is the evidence, which I have allowed to be put in 
by the respondents, an affidavit of Durst, that he had possession of 
the appointment, and that it was produced to the deputy returning 
officer before the opening of the poll and left with him. I therefore 
disallow the objection to Durst's vote." 

At' the same election a deputy returning officer called Neelin, voted 
on certificate, and it was objected to his vote and the vote discussed above, 
that the certificates were not in the form prescribed by the statute in that 
they did not mention the property in respect of which the named persons 
to whom they were given, were entered upon the voters' list. Meredith, 
C.J.C.P., said:— 

" I do not think that I ought to hold that a mistake of that kind 
is sufficient to annul the vote. Both of them were undoubtedly good 
voters, and had a right to Vote upon the by-law ; and I am not pre- 
pared to hold that a mistake of the officer in the form of the certifi- 
cate . . and the failure to insert something which, perhaps, is 



WHEN POLL SHOULD BE OPEN. 129 

not of very much use in the certificate, vitiates the votes. I have', 
therefore, come to the conclusion that the objections taken to them 
are not maintainable." 

In the D. C. in the same case, Riddell, J., discussed the case as 
follows : — ■ 

" Durst lived in polling subdivision • No. 2, having property in 
both No. 1 and No. 2. An appointment was drawn up for him to act 
as scrutineer in polling subdivision No. 2, but a change was made in 
pencil to No. 1, and then the mayor signed the appointment — this 
change was made at the request of one . . . The clerk swears 
that he gave this to Durst at his request ; and Durst swears that he 
received it and a certificate from the clerk and delivered both to the 
deputy returning officer in polling booth for polling subdivision No. 1, 
on the morning of the election. This is sufficient proof. The ap- 
pointment is regular — the certificate signed by the clerk (returning 
officer) reads : ' This is to certify that W. G. Durst, a scrutineer 
in polling subdivision No. 1, is qualified to vote in polling subdivi- 
sion No. 2, on lot 16 west main, and this certificate entitles him to 
vote in polling subdivision No. 1.' This certificate contains all the 
Act requires, unless the omission of the words ' for or against the 
by-law ' after the word ' vote ' makes the certificate incomplete — and 
that could not be contended. It will be seen that the Act does not 
i-equire the interest of the voter in the property to be stated : 3 Edw. 
VII., c. 19, s. 347 (1). Upon the production of this certificate. 
Durst was entitled to vote : s. 347 (2) . In view of the express state- 
ment of Durst, it is too much to ask us to hold that the appointment 
was in fact left on file in the clerk's office, as he at one point in his 
examination thinks. 

" Neelin was the deputy returning officer in polling subdivision 
No. 2. His certificate read : ' Is a duly qualified tenant in polling 
subdivision No. 1, and is, therefore, entitled to vote in No. 2.' Here, 
not the property, but the ' other qualification,' is given in No. 2.' Here, 
Neelin is a tenant — and the rest of the certificate shews that that 
means a tenant qualified to vote. He is ' a person claiming to vote 
as a tenant,' whose case is provided for Tjy s. , 113^ — the oath does not 
specify the property, and I can see no difficulty, in case of suspi- 
cion, in requiring the voter to take an oath. I am of opinion that this 
objection fails." 

101.-— (1), The poll shall be opened at every polling 
place at nine o'clock in the forenoon and shall be kept 
open nntil five o 'clock in the afternoon of the same day. 

(2) The council of a city may by by-law passed before 
the 15th day of November in any year extend the time for 
keeping open the poll until seven o 'clock in the afternoon. 
3 Edw. VII. c. 19, s. 128 (4), amended. 

(3) The votes shall be given by ballot. 3 Edw. VII. 
c. 19, s. 136. 3&4Geo.V.c.43, s. 101 (1-3). 

102. The deputy returning officer shall, immediately 
before opening the poll, shew the ballot box to such per- 
sons as are present in the polling place, so that they 

M.A. — 9 



130 TENDEE OF YOTE. 

may see if it is empty, and he shall then lock the box and 
place his seal upon it in such a manner as to prevent its 
being opened without breaking the seal, and he shall 
keep the box on a desk, counter or table or otherwise so 
that it is raised above the floor in full view of all present, 
and shall keep the box so locked and sealed. 3 Edw. VII. 
c. 19, s. 164, amended. 3 & 4 Geo. V. c. 43, s. 102. 

103. — (1) Where a person tenders his vote, the 
deputy returning officer shall proceed as follows: 

(o) Except where there is no voters ' list he shall as- 
certain that the name of such person or a name 
apparently intended for it is entered on the 
voters' list for the polling sub-division. 

(b) He shall record, or cause to be recorded by the 
poll clerk, in the proper columns of the poll book 
the name, qualification, residence and occupation 
of such person. 

(c) "Where the vote is objected to by any candidate or 
his agent, the deputy returning officer shall enter 
or cause to be entered the objection in the poll 
book, by writing opposite the name of such per- 
son in the proper column the words "Objected 
to," and the name of the candidate by or on 
behalf of whom the objection was made. 

(d) If such person takes the prescribed oath, the 
deputy returning officer shall enter or cause to be 
entered opposite such person's name, in the 
proper column of the poll book the word 
"Sworn," or "Affirmed," according to the fact. 

(e) Where such person has been required to take the 
oath and refuses to do so, the deputy returning 
officer shall enter or cause to be entered opposite 
the name of such person, in the proper column 
of the poll book, the words, "Refused to be 
Sworn," or "Refused to Affirm," according to 
the fact. 



SWBAEING YOTEES. 



131 



(/) After the proper entries have been. made in the 
poll book the deputy returning officer shall place 
or cause to be placed a check or mark opposite 
the name of the voter in the voters' list to indi- 
cate that he has voted, and shall then put his 
initials on the back of the ballot paper. 

{g) The ballot paper shall then be delivered to such 
person. 

{h) The deputy returning officer may, and upon re- 
quest shall, either personally or through the poll 
clerk, explain to the, voter, as concisely as pos- 
sible, the mode of voting. 

(2) The vote of a person who has refused to take the 
oath shall not be received, and if the deputy returning 
officer receives such vote, or, cause it to be received, he 
shall incur a penalty of $200. 3 Edw. VII. c. 19, s. 165, 
amended. 3 & 4 Geo. V. c. 43, s. 103 (1-2). 

See WilsoB y. Manes, 28 O. R. 419 ; 26 A. R. 398. 

104. — (1) The only oath to be required of a person 
claiming to vote shall he according to Form 9. 



FORM 9. 

Oath to be Administered to a Votek. 

Xou swear (oj 

1. That you are the person named or intended -to be named by the 
name of in the list (or 
supplementary list) of voters (6) now shown to you. 

2. That you are a natural born (or naturalized) subject of His 
Majesty, and of the fuU age of twenty-one years. 

3. That you are not a citizen or subject of any foreign country. 
Repealed by 8 Geo. V. c. 32, s. 15. 

5. That (c) 

6. (In the case of a municipality not divided into wards) That you 
have not voted before at this election at this or any other polling place. 

7. (Where the municipality is divided into wards and the election vote 
is not by general vote) That you have not voted before at this election 
at this or any other polling place in this ward, (or if the election is iy 
general vote) that you reside in this polling subdivision (or are not entitled 
to vote in the polling subdivision in which you reside or are n6t resident 
within the municipality, as the case may Be), and that you have not voted 
before or elsewhere at this election, and will not vote elsewhere at this 
election (d). 



133 FORM OF OATH. 

8. That you have not directly or indirectly received any reward or 
gift, nor do you expect to receive any, for the vote which you tender. 
^ 9. That you have not received anything, nor has anything been pro- 
mised you, directly or indirectly, either to induce you to vote at this, 
election, or for loss of time, travelling expenses, hire of team, or any 
other service connected with this election. 

(a) If the voter is a person who may by law affirm in civil cases, 
substitute for " swear," " solemnly affirm." 

(6) In the case of a new municipality in which there has not been any 
assessment roll, instead of referring to the list of voters, the oath is to 
state the land in respect of which the person claims to vote. 

(c) In the case of a person claiming to vote in respect of a freehold 
estate, insert here, " At the date of this election you are in your own right, 
or your wife is, a freeholder within this polling subdivision {or, where the 
ward is not divided into polling subdivisions, "within this ward"); (or, 
in the case of a person claiming to vote in respect of a leasehold estate, 
insert here "That you were (or your wife was) actually and truly in 
good faith possessed to your (or her) own use and benefit as tenant of the 
land in respect of which your name is entered on such list. That you are 
(or your wife is) a tenant within this municipality, and that you have 
been a resident within it for one month nexit before this election;" (or, 
in the case of a new municipality for which there is no assessment roll, 
instead of the words " have been a resident within it for one month next 
before the election," insert " You are a resident of this municipality." 

(Or if the person claims to vote in respect of income, insert here) : 
That on the day of 19 

( the I day certified liy the clerk as the date of the final revision of the 
assessment roll upon which the voters' list is based, or, at the option of 
the voter, the day certified by the clerk as thd last day for making com- 
plaint to the Judge with respect to such list) You were, and thenceforth 
have been continuously, and still are, a resident of this municipality, and 
that at that date and for the twelve months previously you were in receipt 
of an income from your trade, office, calling or profession of not less than 
four hundred dollars ; ( or, in the case of a person claiming to vote as a 
farmer's son. Insert here) That on the day of 

19 , (the day certified by the clerk as the date of the final revision of the 
assessment roll upon which the voters' list is based, or, at the option of the 
voter, the day certified by the clerk as the last day for making complaint 
to the Judge with respect to such list) A- B. (naming him or her) 
was actually, truly and in good faith possessed to his 
(or her) own use and benefit as owner (or as tenant under a lease the 
term of which was not less than five years), as you verily believe, of the 
land in respect of which your name is entered on the voters' list ; that 
you are a son (or a stepson) of the said A. B., and that you resided on 
the said land for twelve months next before the said day, and were not 
absent during^ that period except temporarily, and for not more than six 
months in all, and that you are still a resident of this municipality. Where 
the voter or his wife is a leaseholder, and the voting is on a by-law under 
a. 51 of the Local Improvement Act, add 

That you have (or your wife has), by the lease under which you 
(or she) holds, contracted to pay all municipal taxes, including local im- 
provement rates. 

(d) // the by-law is for creating a debt substitute for paragraph 7. 

(In the case of the municipality divided into wards, if the by-law 
is one for creating a debt: 7. That you have not voted before on the 
by-law at this or any other polling place in this ward; (or in the case of 
any other by4aw) : 7. That you reside in this polling sub-division or are 
not entitled to vote in the polling sub-division in which you reside, or are 
not resident within the municipality (as the case may be), and that you 
have not voted before elsewhere, and will not vote elsewhere on the by-law. 

(Where the voter or his wife is a leaseholder, and the voting is on a 
bif4aw for creating a debt, add the following paragraph : — 

11. That the lease under which you hold (or your wife holds) extends 
for the period for which the debt or liability to be created by the by-law 
is to run, and you have (or your wife has) contracted by the lease to pay 



WHEN OATH IS TO BE ADMINISTERED. 133 

all municipal taxes in respect of the land other than special assessments 
for local improvements. 

Where the voting is on a by-law substitute for the words " at this 
election " the words " on the by-law " • and where the voting is on a ques- 
tion, substitute for the words " at this election " the words " on the 
question." 

3-4 Geo. V. c. 43, Form 9. 

Note. — Where the voter is the nominee of a corporation the oath 
shall state the fact, and that the voter has not voted before on the by-law 
" at this or any other polling place,'' adding if the municipality is divided 
into wards '" in this ward," and shall also contain paragraphs 1, 8, 9 and 
10. 

(2) The voter shall be entitled to select any one of 
the forms of oath, whatever may be the description either 
in the voters' list or assessment roll of the qualification 
or character in which he is entered upon it. 3 Edw. VII. 
c. 19, s. 116, amended. 

(3) The oath may be administered by the returning 
ofl&cer or deputy returning officer if he thinks fit, and 
shall be administered at the request of any candidate or 
his agent, and no inquiry shall be made of a voter, except 
with respect to the matters required to be stated in the 
oath or to ascertain if he is the person- intended to be 
designated on the voters* list, or the assessment roll, as 
the case may be. 3 Edw. VII. c. 19, s. 117, amended. 
3 & 4' Geo. V. c. 43, ,s. 104 (1-3). 

" Person Intended to be Named." — See Re Schumacher and Ches- 
ley, 21 O. L. R. 522 ; Wilson v. Manes, 28 O. R. 419 ; 26 A. R. 398. 

OATH TO BE ADMINISTERED TO A VOTER. 

Clause 1 has reference to the duty east on the deputy returning officer 
under s. 103 (la). The deputy returning officer may decide that there is 
no name in the list intended or apparently intended for the voter's, in which 
case he can decline to give a ballot. If he decides to give a ballot, an 
objection can still be made and the voter may take the oath and become 
entitled to a ballot. In case the deputy returning officer decides that 
there is no name on the list intended, or apparently intended, for the 
voter's, neither the voter nor any candidate or agent has the right to 
object. The only objections authorized are those to the vote. No objec- 
tions against the action of the deputy returning officer in refusing the 
vote are authorized, but if the voter was actually entitled to vote and was 
refused a ballot by the deputy returning officer, the latter might lay him- 
self open to certain liabilities. See infra, p. 231. This clause deals with 
the preliminary question of whether on the list or not. If not on the list 
the voter has no status. 

Clause 2 has reference to the qualifications mentioned in 56 (16) and 
(Ic). The language of s. 58 would appear to indicate that the status of 
a person whose name appeared on the voters' list could not be questioned 
except in the respects mentioned in s. 58, and the matters mentioned in 
clause 2 are not within the mentioned classes. It would therefore appear 
that the list has no finality, so far at least as the matters involved in 
clause 2 are concerned, for the question can be raised by way of objection, 



134 PROVISION'S OP OATH. 

and if the voter is in fact disqualified and refuses to take the oath, he 
cannot obtain a ballot. 

Clause 3. The finality of the list is further impaired in cases where 
British subjects by birth or naturalization, whose names appear on the 
list, have become citizens or subjects of a foreign country. 

Clause 4. The finality of the list is in like manner impaired where 
a woman appears on the list as a widow or unmarried woman when in 
fact she is married or marries after the list is certified. 

Clause 5. This clause contains four alternative provisions applicable 
to municipal elections, and referring respectively to (1) a freeholder, or 
the husband of a freeholder; (2) a tenant or the husband of a tenant; 
(3) an income voter; (4) a farmer's son. This clause enables the dis- 
qualifications arising from non-residence in the case of income, farmer's 
son and tenant voters to be raised by objection, and also enables any per- 
son whose name appears in the list whether as freeholder, tenant, farmer's 
son or income voter to be objected to, if not in fact qualified, although 
when objection is made if such person is qualified in any of the above 
characters, he will be able to take the oath and obtain a ballot. The 
voters' list is therefore not final with respect to any of the matters of 
qualifications mentioned in 56 (le) as explained by 56 (2). 

Clauses 6 and 7 are alternatives and are designed to prevent voting 
more than once contrary to the provisions of ss. 99 and 100. 

Clauses 8, 9 and 10. These clauses are intended to test whether or 
not the voter has committed a breach of ss. 187-8-9. The disqualifications 
imposed by Part V. only become effective after conviction. These clauses 
enable a corrupt voter to be prevented from voting or if he takes the oath 
and votes, he exposes himself to a charge of perjury as well as to penal- 
ties provided in Part V., and the same remarks apply to anyone cor- 
ruptly inducing persons to vote or refrain from voting. Prom the fore- 
going it would appear that the only finality that the proper voters' list 
has is as to the question of name. The presence of the name is essential 
and if the name is not there, the person is entirely finally prevented from 
voting. On the other hand notwithstanding the presence of the name on 
the voters' list, every qualification entitling it to be there can be called 
into question by objection, and if the voter is in fact disqualified, he cap ~ 
be prevented from voting. 

Section 103 does not require the deputy returning officer on the tender 
of a vote to search in the defaulters' list. It would appar that it is the duty 
of the deputy returning officer to hand out a ballot if the voter's name 
appears on the list unless objection is made by a candidate or his agent and 
it is submitted that objection may be made that the voter's name is in the 
defaulters' list, and when objection is made, the deputy returning officer 
should look at the defaulters' list, and if the name appears there, the deputy 
returning officer should refuse a ballot unless the certificate referred to in s. 
59 is produced and filed. 

Worthless Form of Oatb. — By mistake deputy returning officers 
were not furnished with the amended form of oath prescribed by the Act, 
but with the unamended form formerly used. This was made one of the 
grounds of attack upon the by-law. In re Duncan and Midland, 1907, 16 
O. L. R. 132, C. A., RiddeU, J., in the D. C, said : 

" No one can be deprived of his vote because the proper oath has 
not been administered to him. It might, be different if it were shewn 
that the voters were citizens or subjects of a foreign power." ' 

The voter shall be entitled to select any one of the forms ,of oath 
whatever may be th^e description either in the voters' list or the assess- 
ment roll of the qualification or character in which he is entered upon it. 

Ho-nr Objections Should be Made. — Section 103 (lo) provides 
for a case where a vote is objected to. It is submitted that all the 
candidate or his agent can do is to object to the vote and that when 
this is done Form 9 must be administered in to to. It is submitted that it is 
improper to specify particular objections or to enter into any discussion as 



TOTING AFTER TAKING OE KEFU8ING OATH. 135 

to qualification. Such discussion can be entered into on a motion to de- 
clare a seat vacant under Part IV., or in connection with proceedings to 
enforce penalties. 

The language of s. 103 nowhere definitely states that a person whose 
vote_ is objected to must be required to take the prescribed oath. The 
section states what the deputy returning officer is to do when such per- 
son takes the prescribed oath, s.-s. (Id), and also states what is to be 
done when such person refuses to do so. Sub-sections (le) and (2). 
Section 104 (3) gives the returning officer or deputy a discretion to 
administer the oath if he sees fit, and makes it an imperative duty for 
him to administer -the oath at the request of any candidate or his agent. 
Enquiries of the voter are to be confined to the matter stated in the 
oath, and to matters necessary to identify the voter as a person named 
or intended to be named in the list. These enquiries should be made by 
the deputy returning officer. 

Voting after Refusal of Oath. — A vote so given is an illegal vote 
as much as if cast by a personator or if inserted in the ballot box fraudu- 
lently, and has been held to be a ground for setting aside an election 
if the relator would otherwise have had a majority. R. ex rel. Dillon 
v. McNeil, 1855, 5 0. P. 137. But now see title What relator must 
establish to liave election set aside. Part V. 

Taking Oatb Entitles Person Named on List to Vote. — Once 
a voter's name is on the voters' list, he may vote if he can truly take any 
form of oath. Riddell, J., in Re Armour and On'ondaga, 1907, 14 O. L. 
R. at 608. 

All enquiries of an applicant for a ballot paper should be made by a 
deputy returning officer personally, and not by scrutineers or other persons 
rightfully present in the polling place. The latter have no right whatever 
to question the applicant. The first enquiry of the deputy returning officer 
will be for the applicant's name and other particulars necessary to enable 
the name to be quickly found in the voters' list. The deputy returning 
officer should repeat the name and particulars aloud and record or cause 
the poll clerk to record the same in the poll book as required by s. 130 (16). 
The name should be entered in the poll book whether or not the applicant's 
name is found to be on the list. It is important that the poll book should 
contain a record of all applicants for ballot papers whether entitled to 
tie same or not. The record may become material in connection with 
proceedings under s. 138 (g). 

Having ascertained the name of the applicant, the deputy returning 
officer should satisfy himself that it or a name intended for it, is in the 
Ust and if he finds it there, he should at once without making any further 
enquiries delive? a ballot paper to the applicant unless his vote is objected 
to by a candidate or his agent 103 (lo). The Act does not authorize the 
taking of objections at this' stage by the deputy returning officer. The 
only objections authorized are those by candidates or their agents and 
where such an objection is made, it should be made to the deputy return- 
ing officer who must thereupon cause the' objection to be entered as required 
l)y s. 103 (o). The deputy returning officer should then require the person 
objected to to take the prescribed oath. The objection can only be based 
on the grounds for disqualification contained in the prescribed oath, and 
no enquiry is to be made exicept with respect to the matters required to 
be stated in the oath or to ascertain if the applicant is the person whose 
name appears on the voters' list or 'the assessment roll, s. 104 (3). It 
is submitted- that these enquiries should be made by the deputy returning 
officer personally and that all a candidate or his agent can do is to state 
the ground of objection to the deputy returning officer. 

105. The deputy returning officer or the poll clerk 
shall place his initials in the appropriate column of the 
poll book opposite the name of every person who has 
voted for a candidate for the office named in that column. 



136 HOW TO MARK BALLOT. ^ 

3 Edw. VII. c. 19, s. 167 ; 6 Edw. VII. c. 35, s. 21, amended. 
3 & 4 Geo. V. c. 43, s. 105. 

106. — (1) Upon receiving the ballot paper the person 
receiving it shall — 

(a) Forthwith' proceed into the compartment pro- 
vided for the purpose, and shall then and there 
mark his ballot paper by placing a cross, on the 
right hand side, opposite the name, of a candidate 
for whom he desires to vote, or at any other place 
within the division which contains the name of 
such candidate ; 

(h) Then fold the paper so as to conceal the names 
of the candidates, and the marks upon the face » 
of it, and to expose the initials of the deputy re- 
turning officer; 

(c) Then leave the compartment without delay, and 
without showing the face of the ballot paper to 
any one, or so displaying it as to make known 
how he has marked it ; and 

(d) Then deliver the ballot paper so folded to the 
deputy returning officer. 

(2) The deputy returning officer, without unfolding 
the ballot paper, or in any way disclosing the names of 
the candidates, or the marks made by the voter, shall 
verify his own initials, and at once deposit the baUot 
paper in the ballot box in the presence of all persons en- 
titled to be present and then present in the polling 
place; and the voter shall forthwith leave the polling 
place. 3 Edw. VII. c. 19, s. 168 (1), amended. 3 & 4 Geo. 
V. c. 43, s. 106 (1-2). 

Voter Depositing Ballot Paper Himself. — In re Duncan and 
Midland, 1907, 16 O. L. R. 132, an objection was taken that a number of 
voters, instead of handing their ballots to the deputy returning officer, 
themselves, jput them in the ballot box, and section 170 (now 106) is 
appealed to. Kiddell, J., said : 

" Had the section stopped with the words ' forfeit his right to 
vote ' the argument would have had some weight, but the remainder 
of the section shews that what was being provided against was the 



VOTEK MUST HAND BALLOT TO DEPUTY E.O. 137 

voter going away without voting or declining to vote. It never could 
have been intended that a voter who, upon the direction or with the 
approval of the deputy returning officer, himself in good faith, placed 
the ballot in the box, instead of handing it to the defluty returning 
officer, thereby should disenfranchise himself. Section 204 (now 150) 
cures this defect." 

Eule 25 of the first schedule of The Ballot Act is as follows : 

" The elector, on receiving the ballot paper, shall forthwith pro- 
ceed into one of the compartments in the polling station, and there 
mark his paper, and fold it up so as to conceal his vote, and shall 
then put his ballot paper, so folded up, into the ballot box ; he shall 
vote without undue delay, and shall quit the polling station as soon 
as he has put his ballot paper into the ballot box." 

The directions for the guidance of voters from the second schedule of 
The Ballot Act, are as. follows : 

" The voter may vote for candidate. 

" The voter will go into one of the compartments, and, 

with the pencil provided in the compartment, place a <;ross on the 
right hand side, opposite the name of each candidate for whom he 
votes, thus X. 

" The voter wiU then fold up the ballot paper so as to show the 
official mark on the back, and leaving the compartment will, without 
showing the front of the paper to any person, show the official mark 
on the back to the presiding officer, and then, in the presence of 
the presiding officer, put the paper into the ballot box, and forthwith 
quit the polling station. 

" If the voter inadvertently spoils a ballot paper, he can return 
it to the officer, who will, if satisfied of such inadvertence, give him 
another paper. 

" If the voter votes for more than candidate , or places 

any mark on the paper by which he may be afterwards identified, his 
ballot paper will be void, and will not be counted. 

" If the voter takes a ballot paper out of the polling station, or 
deposits in the ballot box any other paper than the one given him by the 
officer, he will be guilty of a misdemeanour, and be subject to impri- 
sonment for any term not exceeding six months, with or without hard, 
labour." 

THE ELECTIONS ACT (DOMINION) . 

R. S. C. 1906, c. 6, s. 162. The elector on receiving the ballot paper, 
shall forthwith proceed into one of the compartments of the polling station, 
and there mark his ballot paper, making a cross with a black lead pencil 
within the white space containing the name of the candidate, or each of the 
candidates for whom he intends to vote, and shall then fold up the ballot 
paper so that the initials and stamp on the back of it and the number 
on the counterfoil can be seen without opening it, and hand it to the deputy 
returning officer, who shall, without unfolding it, ascertain by examining 
his initials and the stamp and the number on the counterfoil, that it is 
the same paper he furnished to the elector, and shall then, in full view of all 
present, including the elector, remove the counterfoil and destroy it and 
place the ballot paper in the ballot box, which box shall be placed on the 
table in full view of all i>resent. 

• ONTARIO ELECTION ACT. 

Section 102 R. S. O. 1914, c. 8. The voter on receiving the ballot 
paper shall forthwith proceed into one of the compartments of the polling 
place and shall there mark his ballot paper, making a cross with a black 
lead pencil within the white space containing the name of the candidate 
. . . . for whom he intends to vote. 



138 SBCEECT OF TOTING — ^DECLINED BALLOT. 

Ballots must be marked within the booth: Quigley v. Bastard, 2 O. 
W. N. 1047 ; 19 O. W. R. 176. 

"The irregularity of a voter putting the ballot directly in the box 
instead of handing it to the deputy returning officer is cured by s. 150: 
Ee Duncan and Midland, 16 O. L. R. 132. 

107. While a voter is in a compartment for the pur- 
pose of marking his 'ballot paper, no other person shall 
be allowed to enter the compartment, or to be in a posi- 
tion from which he can see how the voter marks his 
ballot paper. .3 Edw. VII. c. 19, s. 169. 3 & 4 Geo. V. c. 
43, s. 107. 

More than One at a Time in Voting Compartments. — In re 

Rickey and Marlborough, 1907, 14 O. L. R. at 590, Mabee J., took the 
same view, but said : 

" Persons were improperly allowed in the polling booths, and in 
the ballot compartments, and other omissions not useful to refer to. 
Personally, I think the Courts should require more strict compliance 
with the statutory requirements, where by-laws of this character are 
submitted to a popular vote. If the Legislature lays down a mode of 
procedure, intended to he followed, I am of opinion that, notwith- 
standing the saving clause in the statute, a far too lax practice has 
grown up, and the cases have gone much too far in supporting by-laws, 
where little if any attention has been given by the local officers to 
the statutory preliminaries. Of course this has only promoted and 
encouraged non-observance of the plain provisions that the Legislature 
intended should be observed. I for one shall be glad when the 
pendulum commences to swing back, and this disregard of legal 
formalities by municipal clerks and councils will cease to have the 
approval of the Court." 

In re Duncan and Midland, 1907, 16 O. L. R. 132, where a voter 
and his mother went into a compartment together, Riddell, J., in the 
•C. A., spoke of the matter as a trifling irregularity. 

On the other hand, in Re Quigley and Bastard, 1911, 24 O. L. R. 
622, a by-law was quashed for numerous irregularities in connection with 
the polling, such as, persons being allowed to enter voting compartments 
with voters. 

108. A person who has received a ballot paper shall 
not take, and the deputy returning ofifioer may prevent 
him from taking it out of the polling place and if he 
leiaves the polling place without delivering it to the 
deputy returning officer in the prescribed manner or 
returns the ballot paper declining to vote he shall thereby 
forfeit his right to vote, and the deputy returning officer 
shall make an entry in the poll book, in the column foij 
"RemarTis," to the effect that such person received a 
ballot paper, but took it out of the polling place,- or re- 
turned it, declining to vote, as the case may be, and in the 
latter case the deputy returning officer shall immediately 



MAEKING BALLOTS FOE PERSONS INCAPACITATED, ETC. 139 

write tlie word "Declined" upon the ballot paper and 
shall preserve it. 3 Edw. VII. c. 19, s. 170, amende<^. 
3 & 4 Geo. V. c. 43, s. 108. 

Declined Ballots.— In Ee Ellis and Renfrew, 1910, 21 O. L. R., 2 
O. W. N., 27 D. C 23 O. L. R. 427, C.A., it was established on a motion 
to quash that a voter coming outpof the compartment, threw the ballot 
on the_ table, saying " I wiU have nothing to do with that." The deputy 
returning officer placed it in the ballot box. There was no satisfactory 
evidence as to whether the ballot was marked or not. In the C.A., 
Magee, J.A., thought that the ballot should be disregarded (i.e., not counted 
in making upon the total of which to take three-^fths). Riddell, J., left 
the point undecided. 

If the voter declines to vote after he has marked his ballot, he is not 
■protected from disclosing how it was marked : Magee, J.A., in Re Ellis 
and Renfrew, supra. It is important to write the word " declined " on 
such a ballot. 

109. — (1) The deputy returning officer on the appli- 
cation of a voter who is incapacitated by blindness or 
other physical cause from marking his ballot paper, or 
who makes a declaration, Form 10, that he is unable to 
read, or where the voting is on a Saturday that he is of 
the Jewish persuasion and objects on religious grounds 
to mark his ballot paper in the manner prescribed by s. 
106, the deputy returning officer shall — 

{a) In the presence of the poll clerk and the agents 
of the candidates, cause the vote of such person to be 
marked on the ballot paper in the manner directed by him 
and shall place the ballot paper in the ballot box. 

~{h) Make an entry opposite the name of the voter in 
the proper column of the poll book, that his vote was 
marked in pursuance of this section, and of the reason 
why it was so marked. 

(2) Where the voter objects on religious grounds to 
mark his ballot paper, the declaration may be made 
orally. 3 Edw. VII. c. 19, s. 171, amended. 3 & 4 Geo. V. 
c. 43, s. 109 (1-2). 



140 DECLARATION OF INABILITY TO HEAD. 

FOEM 10. 

Declaration of Inability to Read. 

I, A. B., of , being numbered on the voters' list, for 

polling sub-division No. , in the City (or as the case may be) of 

, being a legally qualified elector for the City (or, as the 
case may he) of - declare that I am unable to read (or that 

I am from physical incapacity unable to mark- a ballot paper, or that I 
object on religious grounds to mark a ballot paper, as the case may 5e). 

(A. B., His X Mark.) 

Dated this day of , 19 

3 Edw. VII. c. 19, Sched. E 
3 & 4 Geo. V. c. 43, Form 9. 

Note. — // the person objects on religious grounds to marie a ballot 
paper, the declaration may be made orally and to tKe above effect. 



FORM 11. 

Certificate to be Written upon or Annexed .to the Declaration of 
Inability to Read. 

I, 0. D., deputy returning officer for sub-division No. for the 

City {or as the case may be) of , hereby certify that tlia above 

(or within) declaration, having been first read to the above (or within) 
named A. B., was signed by him in my presence with his mark. 

G. D. 

Dated this day of , 19 . 

3 Edw. VII. c. 19, Sched. F. 
3 & 4 Geo. V. c. 43, Form 11. 

Open Voting. — In Re Duncan & Midland, 1907, 16 O. L. R. 147, 
Riddell, J., thus discussed an instance of open voting : 

" Some half a dozen voters gave open votes ; and in no such case 
was a declaration of inability to read or physical incapacity for 
the marking of the ballot made by the voter. This is explained by 
the deputy returning officer as having been done by consent of scru- 
tineers for and against the by-law ; and what happened was that 
several persons who were unable to read had their ballots marked for 
them behind tlie screen, in the presence of both scrutineers. This 
was wrong ; it is only those who made a declaration that they are 
unable to read who are entitled to have their votes cast in the 
manner mentioned : s. 171. Some half a dozen are said to have voted 
in the same way in No. 3. If the number of persons thus voting 
had been large, it might be necessary to consider how far this defect 
was cured by s. 204." 

In Re Ellis and Renfrew, 1910, 21 O. L. R. 79, Riddell, J., again 
discussed the question aS follows : 

" In addition to these, Mary Tackman's vote is questioned on 
the hypothesis that she was also an illiterate ; the affidavit of Kelly 
is to this effect, but her own affidavit shews that this is an error. 
She signs the affidavit, and I see no reason for not accepting her 



OPEK VOTING. .141 

account of the matter ; her vote cannot be struck off. So also in 
polling sub-division No. 3, Mary Utrunky's vote is attacked, but 
her own afiSdavit is to be taken. 

" In respect of class 1, the fact is that they, claiming to be 
illiterates, were not required by the deputy returning ofiScer to make 
any declaration as to their incapacity, but the deputy returning oiHcer 
took a ballot and marked it for the voter, but not in the presence 
of the agents, as, it is contended, is required by s. 171 of the Act. 
The answer set up to this is that the agents of those opposing the 
by-law, shewn to be such by the production of a written appointment, 
made no objection, but acquiesced in the act of the deputy returning 
officer going into the voting compartment with the voter alone, and 
then marking for him his ballot, and this without a written declara- 
tion from the voter." 

" The. provisions of sec. 171 seem to make it quite clear that 
in the cage of one claiming to be entitled to vote, but that he is unable 
to read, the declaration is to be in writing. It will be seen that the 
section provides for (o) those incapacitated by blindness; (6) those 
unable to read ; and (where the voting is on Saturday) (c) Hebrews. 
The blind (o) need not make a declaration at all: in the case of 
the Hebrew (c) "the declaration may be made orally:" s. 171 (4) ; 
but there is no provision for the illiterate making his declaration 
orally — the declaration is ' at the time of the polling ' to he made by 
the person claiming . . . before the Vieputy returning officer, 
who shall attest the same as nearly as may be according to the form 
given in schedule F. to this Act ; and the . . . declaration shall he 
given to the deputy returning officer at the time of voting:" s. 171 (3). 
" The argument for the applicant is that the illiterate is given 
the right to vote only upon making the declaration ; that, consequently, 
a vote taken as these were is void ; and that this is not simply an 
irregularity. I do not accede to this argument ; but it is, in my 
view, not necessary to decide the question, for reasons that will 
shortly appear. 

" (2) In the case of Robert Timmons, the blind voter, I have 
pointed out that no declaration was needed ; but the irregularity 
of marking his ballot by the deputy returning officer in presence of 
the voter alone, instead of in the presence of the agents, as required by 
s. 171 (1), was committed also in his case. As, however, the right 
to vote at all cannot be considered to depend upon the manner of 
voting, this vote could not be struck off in these proceedings, the 
whole trouble being in the manner of voting. 

" We did In re Duncan and Town of Midland, 16 O. L. R. 182, 
say that in the case of those unable to read having their ballots marked 
for them without the proper declaration having been made, it might 
be necessary to consider how far this defect was cured by s. 204 
(p. 147) ; but I do not find that the same remark has ever 'been made 
in reference to a blind man. I do not think that I can or should, 
upon the present inquiry as to numbers, make anything depend upon 
this irregularity, however much effect it may have in a subsequent 
investigation of the general manner in which the election was con- 
ducted. 

" (3) Mrs. . . . and Mrs. . . . are very old women. 
The former (80 years of age) appeared at the polling booth, stated 
that she was not able to mark her ballot herself, and the deputy 
returning officer, without requiring any declaration, allowed her and 
her daughter (not sworn to secrecy) to go into the voting compart- 
ment. The deputy returning officer, before allowing this, explained 
to all the scrutineers (including the present applicant, who had 
produced to the deputy returning officer his written appointment to 
act for those opposed to the by-law) that he would not allow Mrs. 
. . . . to go into the voting compartment unless they all con- 
sented, and 'the scrutineers, including the applicant, stated that they 
were willing and consented thereto.' 

" Mrs. . . . (95 years of age) was, in some way, for the 
same reason, and upon the same explanation and consent, accompan- 
ied by her son-in-law. 



143 OPEN VOTING. 

" Mrs. . . . and Mrs. . . . both marked their ballots 
themselves, and both swear that the presence of their relative in the 
voting compartment did not affect the manner in which they marked 
their ballots. It nowhere appears that the relatives could or did see 
the way in which the ballots were marked, or the contrary ; and it 
seems manifest that perfect good faith was observed, and that it 
was simply the physical feebleness of these elderly ladies which 
occasioned the presence of their friends. 

" In this class again, it is not the right to vote hut the 
manner of voting that is objected to, and the same remarks apply to 
these cases as to that of the blind man. 

" We spoke of such cases in the Midland case, at pp. 147, 148, 
and thought the irregularities trifling in any event."' 

And in the C. A. 1911, 23 O. L. R. 433, Garrow, J.A., said : 

" Upon the argument, I was impressed with the contention of 
Mr. Douglas, counsel for the applicant, that it is a statutory con- 
dition precedent to the right of an illiterate person to vote, that he 
should take the declaration required by s. 171. Reflection, however, 
leads me to the conclusion that the omission is merely an irregularity 
in the mode of receiving the vote, and so covered by s. 204. It is 
not the same as the point this Court considered in Re Port Arthur 
Election, 1906, 12 O. L. R. 453, in which agents and others' had been 
allowed to vote, on certificates improperly obtained, at polling places 
other than their own. In such a case the agent's name is not upon 
the voters' list at all, where he proposed to vote. He is, therefore, 
not a voter there, and, to qualify him properly, it is no hardship 
upon him to say that he must come prepared with a proper certificate, 
and, if he does not, it is not the fault of anybody but himself. In the 
case of an illiterate voter, it is the duty of the deputy returning ofBcer 
to obtain the necessary declaration as a preliminary to delivering the 
ballot. And the form of declaration is one of the forms with which he 
is officially supplied for use at the polling place, and is not something 
which the voter himself is required or expected to produce. 

. " It is, of course, the policy of the Act to secure seftrecy, and 
any serious or extensive departure from such policy would undoubtedly 
not merely affect the individual vote, but would be fatal to the whole 
election. But in the present instance the violations in the cases of the 
two very elderly persons who were accompanied to the polling booth 
by their relatives, are, upon the evidence, of a very harmless nature, 
having absolutely no general effect, and are only, at the most, irre- 
gularities cured by s. 204." 

And Magee, J.A., in 23 O. L. R. 437, said: 

" Section 168 of the Municipal Act, which, with other sections, 
is made applicable by s. 351, requires an elector, upon receiving 
his ballot paper, to go into the voting compartment, mark his ballot, 
fold it up, and, without displaying to any one how it is marked, deliver 
it folded to the deputy returning officer, who deposits it in the ballot 
box; and s. 169 forbids that any one shall enter the compartment 
while the voter is there. If these sections stood alone, illiterate or 
physically incapacitated electors would be unable to exercise their 
right of voting. That right, if they can exercise it, is conferred upon 
them equally with their more fortunate, though in some cases per- 
haps not more sensible, neighbours. &o s. 171 makes provision for 
them. It declares that, ' in the case of a person claiming to be entitled 
to vote who makes a declaration that he is unable to read, the pro- 
ceedings shall be ' as therein follows. These proceedings are, that 
the deputy returning officer shall, in the presence of the agents on 
both sides, cause the vote to be marked as the voter directs on a ballot 
paper, and place it in the ballot box and make an entry of the fact 
and the reason for it in the poU-book. The section goes on to provide 
that ' the declaration . . . may be in the form of schedule E 
. . _. and shall at the time of the polling be made by the person 
claiming to be entitled to vote, before the deputy returning officer. 



OPElSr VOTING. 143 

who shall attest the same . . and the said dedaration shall be given 
to the deputy returning oiBcer at the time of voting." In the case of 
Hebrew voters objecting on religious grounds to mark a ballot on 
Saturday, the declaration of that objection may, under the same s. 
171, be made orally. In the case of a person claiming to be entitled 
to vote who is incapacitated by blindness or other physical cause for 
marking his ballot, the section does not, expressly at least require any 
declaration, but the form schedule B seems intended to be used for 
such cases also. When we turn to that form, it reads merely, ' I, 
A. B., of etc., being numbered — on the voters' list, etc., being a 
legally qualified elector, etc., do hereby declare that I am unable 
to read ' — and the illiterate voter is to make his mark to it. 

" It was argued for the appellant that, in the cases to which 
s. 171 applies, the elector is given a vote only conditionally upon 
making the declaration, and that, if the condition was not complied 
with, the Vote would be invalid. But that, I think, is manifestly not 
the intention nor the effect of the statute. Ability to read is not one 
of the qualifications of voters — any more than physical vigour, or 
vision or Christianity. The franchise is conferred absolutely, and, if 
its possessor chooses to risk making a haphazard mark on his ballot, 
no one has the right to prevent him. The section is based on the 
man being ' entitled to vote,' and the form of , declaration asserts that 
title. It does not say that he gets the right upon making the declara- 
tion, but treats the right as existing, and merely declares what the 
proceedings shall be. Apparently, under s. 165, the elector is entitled 
to have the ballot delivered to him before he need say a word about 
Ms inability. 

" No doubt, the formal declaration is not an idle ceremony, although 
it IS a mere repetition, not under oath, of that which the elector 
has already stated — and having only his mark to a paper which he 
cannot read does not stand as inherent evidence against him. It brings 
to his attention the fact that he is doing something of importance. 
Section 176 of the Criminal Code, 1906, would apply to it if untrue, 
and a deputy returning ofiicer wilfully omitting to obtain it would 
run the risk of punishment under s. 164 of the Criminal Code, and 
penalty under s. 194 of the Municipal Act. But these sanctions em- 
phasize the object of requiring a true declaration which is, that the 
procedure for the assistance of voters in the exercise of their lawful 
right shall not be made use of except in eases in. which it is honestly 
necessary. If it is so honestly necessary, the Legislature allows that 
modification of the rule of absolute secrecy. Nowhere do I find any 
indication of an intention to take away the vote because secrecy is- 
not maintained, even in cases where it directs it to be maintained. 
In the Dominion Elections Act, b. 221, the ordinary elector is for- 
bidden to shew his ballot paper, wheii marked, so as to allow his 
marking to be known, and so in the Ontario Election Act, 1908, s. 
163. The Municipal Act, s. 168, requires him to deliver the ballot 
to the ofiicer without shewing it to any one. But none of the Acts 
say that the vote shaU be invalid if he does, and no case so holding 
has been cited. Displaying the ballot may be evidence to support a 
charge of corrupt practice, or to shew improper conduct of the elec- 
tion, but that is another matter. If, then, in the case pf such a 
wilful breach of secrecy by the ordinary voter, he is not disfranchised, 
how can it be said that • the illiterate elector loses his vote because, 
without fault of his own, the ballot is, without authority, marked 
in the presence of one or three persons sworn to secrecy. Taking 
the declaration may be a condition precedent to his right to" claim 
assistance, but not to his right to vote. These men had that right. 
That they were in fact unable to read is not disputed, and there is 
no suggestion that their ballots were not marked in accordance with 
their own intention. In my view, there is no valid ground for strik- 
ing them out of the count. It is said that the ballots of all or nearly 
all of them were marked when only the deputy returning officer was in 
the compartment with the voter, and without an agent on each side 
being present. It was only at poUs Nos. 1 and 3 that they voted. 
The deputy returning officer at the former place makes affidavit that, 



144 CANCELLED BALLOTS. 

before marking any of the ballots of illiterates, he asked the agents 
on each side to be present. . The officer at No. 3 swears that the 
agents acquiesced in his not taking declarations and in his going 
in alone when the ballots were marked — and, although the agent 
for those opposing the by-law denies acquiescence as to the declara- 
tion, he does not as to the marking. There is no suggestion that any 
agent who desired was in any way prevented or discouraged from being 
present. There is nothing in the facts with regard to any of these 
10 votes to make one have regrets that the votes should not be struck 
out. It would be unfortunate if any of them were disallowed, so far as 
the facts appear, as no want of good faith anywhere is suggested." 

In Re Schumacher and Chesley, 1910, 21 O. L. R. 537, ilUterates 
voted without '■ oath of secrecy in the presence of unaut'iorized electors 
and persons, and Riddell, J., said : 

" I have in Re Ellis and Town of Renfrew considered the case 
of illiterates, and have decided that the formalities laid down for vot- 
ing by illiterates, are not conditions precedent to the right to vote — 
and that, upon such inquiries as the present, irregularities not affect- 
ing the right to vote should not be considered in determining the 
number of votes for a by-law, whatever effect such irregularities may 
have in another point of view. I think Re Ellis and Town of Ren- 
frew well decided, and adhere to the views there expressed." 

In Re Sturmer and Beaverton, 1911, 24 O. L. R. 70, two old ladies 
who had not brought their glasses, and though able to read with them, could 
not see well enough to mark their ballots unaided. Without protest, they 
were aided by the deputy returning officer in the presence of scrutineers. 
This did not invalidate the ballots; (only three votes had to be struck off 
to change the result) . 

Neglect of the deputy returning officer to, comply with the require- 
ments of this section : Re Prangley and Strathroy, 21 O. L. R. 54 ; 1 
O. W. N. 706; 15 O. W. R. 890. 

The omision of an illiterate person to make a declaration is a mere 
irregularity : Re North Gower Local Option, 4 O. W. N. 1177 ; 24 O. W. R. 
489 ; 25 O. W. R. 224 ; 5 O. W. N. 249. 

Blind Voter.— See Re Ellj.s and Renfrew, 21 O. L. R. 74; 15 
O. W. R. 880. 

110. A voter who has inadvertently dealt with his 
ballot paper in such a manner that it cannot be conveni- 
ently used, upon returning it to the deputy returning 
officer shall be entitled to obtain another ballot paper, 
and the deputy returning officer shall immediately write 
the word "Cancelled" upon the first mentioned ballot 
paper, and preserve it. 3 Edw. VII. c. 19, s. 172. 3 & 4 
Geo. V. c. 43, s. 110. 

Cancelled Ballots. — This section differs from the corresponding 
provision of the Ballot Act, 1872 (Imp.) in that in the latter Act the 
voter is required to prove the fact of the inadvertence to the satisfaction 
of the presiding officer, and the Imperial Act also requires the returned 
ballot paper after being marked cancelled to be put at the close of the 
poll in a packet with the unused ballot papers, a provision which is also 
lacking in the Ontario Act. This makes it important that a returned 
ballot shall be marked " cancelled " at once ; otherwise it may be confused 
with rejected ballots on a recount or scrutiny, with consequent difficulty in 
determining whether or not it is a ballot which should be counted for a 
candidate in case it is good on its face, and has merely been inadver- 
tently marked for a candidate for whom the voter did not intend to vote. 



WHO MAT EEMAIN IN POLLING PLACE. 145 

It is to be noted that the Act does not use the term " spoiled ballots." 
This is the term used in the Ballot Act (Imp.) where the Ontario Act 
uses the term " cancelled ballots." The term " spoiled ballot " as popularly 
used includes " rejected ballot " with resulting confusion. 

Inadvertently. — ^A voter who deliberately destroyed a ballot paper 
would not be entitled to obtain a new one. The question of the voter's 
honesty and good faith would become material in an action against the 
deputy returning officer for refusing another ballot paper: Hastings v. 
Summerfeldt, 1899, 30 O. R. 579. 

Cannot Conveniently be Used. — The voter is the judge. " Con- 
veniently " in this section means " conveniently for the voter and for 
his wish, purpose, and intention in voting " : Falconbridge, J., in Hast- 
ings V. Summerfeldt, supra. The inadvertence may be in tearing or 
making an additional mark or marking by mistake for the wrong candl- 
Jate. The ballot may on its face "be a good ballot. In Hastings v. Sum- 
merfeldt, the deputy returning officer refused a new ballot till he had 
seen the old one and when he saw it, he shewed it to the scrutineers, 
declared it was a well marked, good ballot and refused to give another 
and placed it in the ballot box. He was penalized $400 on three grounds : 
(1) Disclosing the paper; (2) Not cancelling it; (3) Refusing a new 
ballot paper. See Si 143. 

111. A person who applies for a ballot paper shall he 
deemed to have tendered his vote; and a person whose 
ballot paper has been deposited in the ballot box, or who 
has delivered it to the deputy returning officer or poll 
clerk for the purpose of having it deposited in the ballot 
box, shall be deemed tp have voted. New. See 8 Edw. 
VII. c. 3, s. 110. 3 & 4 Geo. V. c. 43, s. 111. 

The presumption is only prima facie evidence against the elector and 
does not apply in proceedings to set aside an election : R. ex rel. Tolmie v. 
Campbell, 4 O. L. R. 25. See Ontario Election Act, R. S. O. 1914, c. 8, 
s. 110. 

112. The deputy returning officer, the poll clerk, the 
constable or constables, the candidates and their agents, 
and no others, shall be permitted to remain in the polling 
place during the time the poll is open or at the counting 
of the votes. 3 Edw. VII. e. 19, s. 173, amended. 3 & 4 
Geo. V. c. 43, s. 112. 

Persons Remaining in the Polling Place. — This is a mere irre- 
gularity which however may become fatal (s. 150). Re Schumacher and 
Chesley, 1910, 21 O. L. R. 538, and Re Ellis and Renfrew, 1910, 21 O. 
L. R. 74 and 23 O. L. R. 427, where the curative section was applied, and 
Re Hiokey and Orillia; 1908, 17 O. L. R. 317, and Stoddart v. Owen 
Sound, 1913, 27 O. L. R. 221, where these irregularities combined with 
others destroyed the secrecy which is a fundamental principle. See also 
Quigley v. Bastard, 24 O. L. R. 622, and Re Service, and see also Front 
of Escott, 13 O. W. R. 1215. 

M.A. 10 



146 AGENTS FOE CANDIDATES. 

113. In cities in which the aldermen are elected by 
general vote a candidate shall be entitled to one agent 
only, arid except in such cities a candidate in any munici- 
pality shall be entitled to two agents. 3 Edw. VII. c. 19, 
s. 175, amended. 3 & 4 Greo. V. c. 43, s. 113. 

Two Agents Present. — In re Dillon v. Cardinal, 1905, 10 O. L. R. 
371, Magee, J., in the D. C, held the presence of more than one agent 
where only one is authorized to be a mere irregularity, saying : 

" The restriction as to number of agents present is manifestly 
one of convenience combined with protection of all interests and of 
the principle of secrecy, as to the actual marking of the ballots." 

114. — (1) No person on the day of the polling shall 
use or deliver to any other person any card, ticket, leaflet, 
book, circular or writing soliciting votes for or against 
any candidate, or by-law, or for an affirmative or nega- 
tive answer to any question, or having upon it the name 
of any candidate. 

(2) Every person who contravenes the provisions of 
s.-s. 1 shall incur a penalty not exceeding $20. 6 Edw. 
VII. c. 34, s. 12 ; 2 Geo. V. c. 40, s. 1. 3 & 4 Geo. V. c. 43, 
s. 114 (1-2). 

Proceedings after the Close of the Poll. {See 115-123.) 

115. Immediately after the 'close of the poll, the 
deputy returning officer shall first place all the cancelled 
and declined ballot papers in separate packets and seal 
them up, and shall then count the number of voters whose 
names appear by the poll book to have voted, and cause a 
certificate, in the following form: — "I certify that the 
number of voters who voted at the election in this polling 

place is {stating the number in words) and that 

was the last person who voted, at this polling place," to 
be entered in the poll book on the line immediately below 
the name of the voter who voted last, and such certificate 
shall be signed by the deputy returning officer, the poll 
clerk, and any candidate or agent present who desires to 
sign it ; then, in their presence and in full view he shall 
open the ballot box and count the number of votes for 
each candidate, giving full opportunity to those present 



COUNTING THE VOTES — HEJECTED BALLOTS. 147 

to examine each ballot paper. New. See 8 Edw. VII. c. 
3, s. 113. 3 & 4 Geo. V. <?. 43, s. 113. 

116. In counting the votes, the deputy returning officer 
shall reject all ballot papers^ 

(a) "Which have not been supplied by him; or 

(&) By which votes have been given for more candi- 
dates than are to be elected ; or, 

(c) Upon which there is any writing or mark by 
which the voter can be identified, or which has 
heen so torn, defaced or otherwise dealt with by 
voter that he can thereby be identified ; 

but no word, letter or mark written or made or omitted to 
be written or made by the deputy returning officer on a 
ballot paper shall avoid it or warrant its rejection. New. 
See 8 Edw. VII. c. 3, s. 114. 3 & 4 Geo. V. c. 43, s. 116. 

117. — (1) The deputy returning officer shall make a 
note of every objection taken to a ballot paper, by a can- 
didate or his agent, and shall decide the objection subject 
to review on recount or in a proceeding questioning the 
validity of the election. 

(2) Each objection shall be numbered, and a corres- 
ponding number shall be placed on the back of the ballot 
paper and initialed by the deputy returning officer. New. 
See 8 Edw. VII. e. 3, s. 115. 3 & 4 Geo. V. c. 43, s. 117 
(1-2). 

118. — (1) All the ballot papers except those rejected 
shall be counted, shall be put into a packet, and an account 
shall be kept of the number of ballots cast for each candi- 
date, and of the, number of rejected ballot papery, and 
the rejected and unused ballot papers shall be put into 
separate packets. 

(2) Every packet shall be endorsed so as to indicate 
its contents, and shall he sealed by the deputy returning 
officer, and any candidate or agent present may write his 



148 COUNTING THE VOTE. 

name on the packet and may affix to it his seal. New. 
See 8 Edw. VII. c. 3, s. 116. 3 & 4 Geo. V. c. 43, s. 118. 

Extracts from tlie Ballot Act (Imp.). — Section 2 of the Ballot 
Act, 1872, 35 and 36 V., c. 33 (Imp.), is as follows: 

" In the case of a poll at 'an election the votes shall be given by 
ballot. The ballot of each voter shall consist of a paper (in this 
Act called a ballot paper) showing the names and description of the 
candidates. Each balloj. paper shall have a number printed on the 
back, and shall have attached a counterfoil with the same number 
printed on the face. At the time of voting, . the ballot paper shall be 
marked on both sides with an official mark, and delivered to the 
voter within the polling station, and the number of such voter on 
the register of voters shall be marked on the counterfoil, and the 
voter having secretly marked his vote on the paper, and folded it 
up so as to conceal his vote, shall. place it in a closed box in the pre- 
sence of the officer presiding at the polling station (in this Act called 
'the presiding officer') after having shown to him the official mark 
at the back. 

" Any ballot paper which has not on its back the official mark, 
or on which votes are given to more candidates than the voter, is 
entitled to vote for, or on which anything, except the said number on 
the back, is written or marked by which the voter can be identified, 
shall be void and not counted. 

" After the close of the poll the ballot boxes shall be sealed up, 
so as to prevent the introduction of additional ballot papers, and 
shall be taken charge of by the returning officer, and that officer shaU, 
in the presence of such agents, if any, of the candidates as may be 
in attendance, open the ballot boxes, and ascertain the result of the 
poll by counting the votes given to each candidate, and shall forth- 
with declare to' be elected the candidates or candidate to whom the 
majority of votes have been given and return their names to the 
Clerk of the Crown in Chancery. The decision of the returning officer 
as to any question arising in respect of any ballot paper shall be 
final, subject to reversal on petition questioning the election or 
return." 

Rule 36 of the first schedule of the Ballot Act ( Imp. ) , is as follows : 

" The returning officer shall endorse ' rejected ' on any ballot 
paper which he may reject as invalid, and shall add to the endorsement 
' rejection objected to,' if an objection be in fact made by any agent 
to his decision. The returning officer shall report to the Clerk of 
the Crown in Chancery the number of ballot papers rejected and not 
counted by him under the several heads of : 
1. Want of official mark; 
m 2. Voting for more candidates than entitled to ; 

3. Writing or mark by which voter could be identified; 

4. Unmarked or void for uncertainty : 

and shall on request allow any agents of the candidates, before such 

report is sent, to copy it." 

See last part of s. 2 of the Ballot Act, supra. 

THE ELECTIONS ACT (DOMINION;. 

Section 173. In counting the votes, the deputy returning officer shall 
reject all ballot papers : 

(a) Which have not been supplied by him; or 

(6) By which votes have been given for more candidates than 
are to be elected ; or 

(c) Upon which there is any writing or mark by which the voter 
could be identified, other than the numbering by the deputy returning 
officer, in the case hereinbefore provided for. 



COUNTING THE VOTE. 149 

Ontario Elections Act. — R. S. O. 1914, c. 8, s. 114. In counting 
the votes, the deputy returning officer shall reject all ballots herein called 
" rejected ballot papers." 

(a) Which have not been supplied by him ; or 
(6) By which votes have been given for more ^candidates than 
are to be elected ; or 

(c) Upon which there is any writing or mark by which the 
voter can be identified other than the number placed thereon by 
the deputy returning officer in the case provided for by s. 108. 

But no 'word, letter or mark written or made or omitted to be written 
or made by the deputy returning officer on a ballot shall avoid the same 
or warrant its rejection. 

The leading case dealing with the directions to voters as to marking, 
and to deputy returning officers as to counting b.allots, is Woodward v. 
Sarsons, L. R. 10 C. P. 733. The following is an extract from the judg- 
ment : — 

" Ii» this case, therefore, it becomes necessary, not by way of 
scrutiny, but in order to determine whether the majority has been 
prevented from voting with effect, to determine upon the validity or 
invalidity of the votes which were given, and to which objection has 
been taken. In order to determine this part of the case it is necessary 
to consider and determine the construction of the Ballot Act. Now, 
first, the Act is divided into the principal part which contains certain 
sections and two schedules which contain certain rules and forms ; 
and by s. 28, ' The schedules and the notes thereto and directions 
therein shall be construed ~ and have effect as part of this Act.' The 
rules and forms, therefore, are to be construed as part of the Act, 
but are spoken of as" containing ' directions.' Comparing the sections 
and the rules, it will be seen that, for the most part, if nO't invariably, 
the rules point out the mode or manner of doing what the sections 
enact shall be done. And in schedule 2, the first note states : ' The 
forms contained in this schedule or forms as nearly resembling the 
same as circumstances will admit shall be used.' And in the ballot 
paper, as given in the schedule, is: 'Directions as to printing ballot 
paper,' and ' Form of diredtions for the guidance of voters in voting,' 
etc. These observations lead us to the conclusion that the enactments 
as to the rules in the first schedule, and the forms in the second, are 
directory enactments as distinguished from the absolute enactments 
in the sections in the body of the Act. And in such case, in 
order to determine the preliminary question, which is, whether 
there has been a material breach of the Act, and which must 
be determined before determining what effect such breach has 
upon a vote on the election, the general rule is that an absolute 
enactment must be obeyed or fulfilled exactly, but it is sufficient if a 
directory enactment be obeyed or fulfilled substantially. The second 
section enacts, as to what the voter shall do, that : ' The voter having 
secretly marked his vote on the paper and folded it up so as to con- 
ceal his vote, shall place it in an enclosed box.' This is all that is 
said in the body of the Act about what the voter shall do with the 
ballot paper. "That which is absolute, therefore, is that the voter 
shall mark his paper secretly. How he shall mark it, is in the 
directory part of the statute. By rule 25, ' The elector on receiving 
the ballot paper shall forthwith proceed into one of the compartments 
in the polling station, and there mark his paper, and fold it up so as 
to conceal his vote, and shall then put his ballot paper so folded up 
into the ballot box.' This rule, it will be observed, does not yet say 
how the paper is to be marked. But in schedule 2 is given the ' form 
of ballot' paper,' and appended to this form is a note, which, by the 
28th section, is to be construed and have effect as part of the Act. 
This note contains the form of directions for the giridance of the 
voter in voting : ' The voter will go into one of the compartments and 
with the pencil provided in the compartment, place a cross on the 
right hand side, opposite the name of each candidate for whom he 
votes, thus X.' This is the only enactment throughout the statute 



150 COUNTING THE VOTE. 

as to the manner and form in which the voter is to mark the ballot 
paper. And therefore, by the general rule before mentioned, it would 
be necessary that the absolute enactment that the paper should be 
marked secretly should be obeyed exactly, but it would be sufficient 
that the manner of marking the paper should be obeyed substantially. 
If these two enactments be so obeyed, there is no material breach of 
the Act. The extent of error, which is to vitiate so as to annul the 
ballot paper, is further to be gathered from the statute itself. By 
s. 2 : ' Any ballot paper which has not on its hack the offiaal vark, 
or on which votes are given to more candidates than the voter is 
entitled to vote for, or on which anything except the said number on 
the back is written or marked by which the voter can be identified, 
shall be void, and not counted.' It is not every writing or every 
mark, besides the number on the back, which is to make the paper 
void, but only such a writing or mark as is one by which the voter 
can be identified. So in Rule 36 : ' The returning officer shall report, 
etc., the number pf ballot papers rejected, and not counted by him 
under the several heads of, first, want of official mark ; secondly, 
voting for more candidates than entitled to; thirdly, writing or mark 
by which voter could be identified ; fourthly, unmarked or void for 
uncertainty.' And then in schedule 2 in the note to the form before 
referred to, we have this warning : ' If the voter votes for more than 
one candidate, or places any mark on the paper by which he may be 
afterwards identified, his ballot paper will be void, and will not be 
counted.' The result seems to be, as to writing or mark on the 
ballot paper, that if there be substantially a want of any mark, 
or a mark which leaves it uncertain whether the voter intended 
to vote at all, or for which candidate he intended to vote if there 
be marks indicating that the voter has voted for too many candi- 
dates, or a writing or a mark by which the voter can be identi- 
fied, then the ballot paper is void, and is not to be counted. 
Or, to put the matter affirmatively, the paper must be marked so as 
to shew that the voter intended to vote for some one, and so as to 
shew for which of the candidates he intended to vote. It must not 
be marked so as to shew that he intended to vote for more candidates 
than he is entitled to vote for, nor so as to leave it uncertain whether 
he intended to vote at all, or for which candidate he intended to vote, 
nor so as to make it possible, by seeing the paper itself, or by refer- 
ence to other available facts, to identify the way in which he has voted. 
" If these requirements are substantially fulfilled, then there is no 
enactment and no rule of law by which a ballot paper can be treated 
as void, though the other directions in the statute are not strictly 
obeyed. If these requirements are not substantially fulfilled, the 
ballot paper is void, and should not be counted ; and if it is counted, 
it should be struck out on a scrutiny. The decision in each case is 
upon a point of fact to be decided, first, by the returning officer, and 
afterwards, by the election tribunal on petition." 

As to Woodward v. Sarsons, in 1876, a select committee of the House 
of Commons (Imp.), appointed to enquire into the working of the Ballot 
Act, recommended to the Home Office that a copy of the report of Wood- 
ward V. Sarsons should be sent to every returning officer. Shortly after 
Woodward v. Sarsons was decided an effort was made to get an Election 
Court, consisting of Moss, C.J.O., and Gait, J., to apply the rule in 
Woodward v. Sarsons, which holds that ballots need not necessarily be 
marked with a cross, to ballots marked under the Dominion Act. The 
Court considered that the Canadian rule, holding a cross essential, was 
the necessary consequence of the differences between the two Acts. In 
other respects, however, Woodward v. Sarsons has been uniformly followed 
as a correct exposition of the rules to be applied to determine the validity 
of ballots. 

Mark by which Voter can be Identified. — South Oxford Provin- 
cial Election Case, App. Div., 1914, 32 O. L. R. 1, contains the following : 

1. That a ballot paper on which were two marks in the form of 
a T, the two lines not touching, should not be counted. 



WHAT BALLOTS SHOULD BE EEJBCTBD. 151 

2. That a ballot marked V, the rest of the cross being appar- 
ently torn ofE, should be counted. 

3. That a ballot paper marked with two strokes, the second a 
repetition of the first, but not quite covering it, not amounting to 
either a V or a cross, should not be counted. 

4. That a ballot paper marked with a straight line instead of a 
cross should not be counted. 

In the same case the following ballots having additional marks were 
held good: — 

1. Thsjt a ballot paper with the word ' for ' written after the 
cross should be counted. 

2. That a ballot paper marked with a cross to the right of the name 
of one of the candidates with some irregular pencil markings under 
his name, should be counted, none of the markings being such as to 
identify the voter. 

3. That ballot paper marked with a cross opposite the name of 
one candidate, and a line, apparently marked out, opposite the name 
of the other, should be counted for the first. 

4. That a ballot paper marked with a cross containing three 
strokes in the centre of the name of one of the candidates, should be 
counted. This paper was returned by the deputy returning oflBcer 
as a declined ballot; but the ballot is to be looked at and not the 
return : see form 21 and ss. 117 and 138 of the Act. 

5. That a ballot paper marked with a cross, but having the figures 
83 before the deputy returning officer's initials on the back, should be 
counted. 

6. That a ballot paper marked with a cross, and a further line 
making a star, should be counted. 

7. That a ballot paper marked with a cross opposite the name of 
one of the candidates, with a straight line in pencil under part of his 
name, should be counted. 

8. That a ballot paper properly marked for one of the candidates, 
but with a cross on the back opposite the deputy returning officer's 
initials, should be counted. 

In Muskoka Provincial Election Case, 4 O. L. R. 253, the following 
was held : — 

Ballots marked with a cross, one upon and the other above the 
upper" line, should not be rejected : ibid. (See amendment) . 
A cross made by three or four strokes was good. 

Mark by wliich Voter can be Identified (Fatal). — In He Len- 
nox Provincial Election Case, 1902, 4 O. L. R. 381, Maelennan, J.A., 
disallowed a ballot which had the initials " S. A." in small but legible 
capitals, saying as follows : — 

" In the West Huron Case, 1898, 2 E. C. 58, at p. 62, and the 
West Elgin Case, 1898, il. 38 at pp. 44-5, respectively, Mr. Justice 
Osier and myself decided cases of ballots having writing upon them 
differently, and I have thought it right to confer with him before 
deciding this case. The result is, that after considering all the 
reported cases on the subject, both here and in England, we are both 
of opinion that any written word or name upon a ballot, presumably 
written by the voter, ought to vitiate the vote, as being a means by 
which he could be identified. We also think that in general other 
marks ought not to have that effect, without deciding that particular 
cases may not arise In which it ought to be held otherwise." 

And the same Judge in North Grey Provincial Election Case, 1902, 4 O. 
L. R. 286, disallowed a ballot otherwise good which had the name of one 
candidate written on the back for the reason given by him in the Lennox 
case. 

Mark by ivMch Voter may be Identified (not Fatal). — In Ke 

Muskoka Provincial Election Case, supra, an obscure pencil mark which 
might be taken for the letter " C " was held not fatal. . 



152 



WHAT BALLOTS SHOULD BE REJECTED. 



In Re Prince Edward Provincial Election Case, 1905, 9 O. L. R. 465, 
Maclennan, J.A., held the following ballot good for Norman : — 



1 


CURRIE. 




2 


NORICAN. 


2 



In North Grey Provincial Election, 1902, 4 O. L. R. 286, Maclennan, 
J.A., held a ballot good for the candidate opposite 'whose name was a distinct 
cross ; an obliterated cross being in the other division. A similar ballot 
was held good in Re Prince Edward Provincial Election, 1905, 9 O. L. R. 
463. 

In the Monck Case, 1876, Hodgins 729, Blake, V.O.,' said :— 

" I think the mark must contain in itself a means of identification 
of the voter in order to vitiate the ballot. There must be something 
in the mark itself, such as initials, or some mark known as being 
one the voter is in the habit of using. If there be not this restriction, 
then it will naturally follow that every peculiarity about every cross 
should be scanned in order to see whether some of the additions were 
not put there designedly so as to mark distinctively that particular 
ballot paper. Any mark in addition to the cross might thus void the 
vote; and on the same principle, any alteration in the position of 
the cross from a rigid observance of which is set fqrth in the Act 
should be taken as a means of denoting the ballot as one marked so 
as to require its rejection. I think if the Legislature intended this 
result, we should have found different language used from that which 
we have in this enactment ;" 

and accordingly held the following ballots good : 

(1) A cross rightly placed with two additional crosses near the 
candidate's name ; 

(2) A cross with a line before it; 

(3) Inadvertent marks in addition to cross. 

Where the mark is an additional erased or obliterated cross,, the ballot 
will be good : Re Prince Edward Provincial Election, 1905, 9 O. L. R. 
463. In this case there was a well formed cross in one division but in the 
other there was -a distinct indication that a cross had been placed there, 
which was afterwards carefully erased with a knife or other sharp 
instrument. 

In Woodward v. Sarsons, the following ballots were held bad : 638 
signed by a name appearing on the list — 

638. 



1 


SAESONS. 


X 


2 


WOODWARD. 




E. Prews 

844, marked as below, was commented on as follows : 


1 


SAHSONS. 


Sanen 


2 


WOODWARD. 





WHAT BALLOTS SHOULD BE REJECTED. 



153 



1 


SAESONS. 


Sarsons 


2 


WOODWARD. 





With some hesitation the GoUrt disallowed Nos. 844 and 889, saying: 
" There is no cross at all, and we yield to the suggested rule that 
the writing by the voter of the name of the candidate may give too 
much facility by reason of the handwriting to identify the voter." 

410. 



1 


SAESONS. 




2 


WOODWAPD. 


C W 
X 



This ballot, as it contained the initials, was also disallowed. 

In Muskoka Provincial Election, 1902, 4 O. L. R. 253, the Judge on a 
recount disallowed all the votes at a certain poll on the ground that the 
deputy returning officer, whose name was Henry Cully Guy, initialed all the 
ballots at that poll "H. G." instead of " H. C. G.," and he also dis- 
allowed all the votes at another poll on the ground that the deputy return- 
ing officer, William D. McNaughton, endorsed the ballots with the initial 
" McN." instead of with the full initials of his name. Macleiinan, J. A., 
commented on this as follows : — 

" I am of the opinion that, the sole purpose of requiring the 
deputy returning officer to endorse his name or initials upon the ballot 
being the identification of the ballot brought back by the voter as 
that which was delivered out to him, the initials used- by both these 
officers were sufficient. The Legislature has shewn its intention — 
when everything else is found to be regular — not to require great 
exactness in the matter of the name or initials, by enacting that 
where the number of ballots which were used is found to be correct, 
the total absence of name or initials, or some of them, should not be a 
ground for rejection : s. 112 (2)-. There was no suggestion that the 
number of ballots found at these polls was not correct, and that being 
so, I do not think it would have been right to disallow the votes if 
none of them had been initialed. However that may be, I think they 
were sufficiently initialed within the meaning of the statute." 

In the Wigtown Case, 1874, 2 O'M. & H. 22-3, the following observa- 
tions were made.: 

" The merits of each vote may turn on questions of degree wTiich 
it is always difficult to distinguish, as the one class may run almost 
imperceptibly into the other. P. 220. 

" For anyone to put instead of a cross, a circle or an oval or any 
other geometrical anomalous figure, would not be a compliance with 
the law, independently of the consideration that such a plain and 
wilful departure from what was intended would suggest strongly the 
suspicion that some sinister purpose was intended. P. 221. 

" On the other hand, there are ballot papers in which a cross is 
made or attempted to be made, but is not very well made ; whethtr 
from unsteadiness of Hand or accidental disturbance the -^ross lines 
are not clear or steady but somewhat shaky and irregular, I am of 
opinion that said imperfections and defects are not fatal. P. 221. 



154 



WHAT BALLOTS SHOULD BE REJECTED. 



" If a voter besides his proper cross puts one or more additional 
crosses or puts circles or ovals ad libitum, he raises a strong suspicion 
against himself and has himself to blame if his ballot paper is 
rejected. 

" I think some latitude must be allowed with regard to the posi- 
tion of the cross. 

" I think it is not essential that the cross should be made with 
pencil. 

" A good cross with any pencil or with any ink not peculiar 
seems unobjectionable." 

The Election Court in the leading case of Woodward v. Sarsons, made 
the following references to the foregoing, case : 

" We are aware that in so applying the principles which we 
have deduced from the statute, we are acting apparently in opposi.- 
tion to some of the decisions in Haswell v. Stewart (The Wigton 
Case), but there may have been evidence in that case which does 
not exist in the present, and which made many of the marks there 
marks of identification, which the mere presence of the marks here 
does not do. If this was not so, we respectfully differ from the strict 
view taken by the majority of the learned Judges who decided that 
case, and adhere to the view of Lord Beenholme given in that case." 

Mark by Whicli Voter Can be Identified. — In Woodward v. 
Sarsons, 1875, 44 L. J., C. P. 293, the following will be found : 

• " We ca;nnot think that the mere fact of two crosses being placed, 
as in 433 or as in 928, ought to vitiate the ballot paper. There can 
be no doubt as to the intention to vote, and no doubt as to the inten- 
tion to vote emphatically for one candidate. If there was evidence 
of an arrangement that the voter to indicate that it was he that 
voted, who had used the ballot paper, then, by reason of such evidence, 
such double mark would be a mark by which the voter could be iden- 
tified, and then the paper, upon such proof being made, should be 
rejected. But the mere fact of there being two such crosses, is not, 
in our judgment, a substantial breach of the statute." 

Ballot 433 mentioned above, is as follows : 



1 


SAESONS. 


XX 


2 


WOODWARD. 




Ballot 928 mentioned above, is as follows : 


1 


SARSONS. 


X 


2 


WOODWAE.D. 





928 had evidently been marked with an X in ink and folded up, thereby 
making a corresponding mark on the other part of the paper. Where 
a second cross is clearly an impression of an original cross, it will be 
ignored. Woodward v. Sarsons, supra, and re North Grey Case, supra. 

The judgment then proceeds as follows: 

" Neither is the mere fact of a^ additional mark such as is found 
in 926, nor the mere fact of the peculiar form of cross in 1,364 and 
641, nor the marks on 1,726, 2,140, 3,562 or 911, though in these 
cases also extrinsic evidence of arrangement might make such pecu- 
liarities indications of identity." 



WHAT BALLOTS SHOULD BE REJECTED. 
The ballots mentioned above are as follows : 

926. 



155 



1 


SARSONS. 


X 

• 


2 


WOODWARD. 





On 926 an X in pencil had evidently been rubbed vcith a damp 
finger as above. 

1,364. 



1 


SARSONS. 
X 


X 


2 


WOODWARD. 





1,364 had evidently been marked with an X in ink and folded up, 
thereby making a corresponding mark on the other part of the paper. 

641. 



1 


SARSONS. 


« 


2 


WOODWARD. 




- 


1,726. 




1 


X X 

SARSONS. 


-X 


2 


WOODWARD. 


' 


2,140. 


1 


SARSONS. 


XI 


2 


WOODWARD. 




3,562. 


1 


SARSONS. 


xir 


2 


WOODWARD. 





156 WHAT BALLOTS SHOULD BE EEJECTBD. 

911. 



1 


SARSOi;rs. 


X 


2 


WOGB^Al?Ti, 





911. The name " Woodward " has a pencil line through it, diagonally 
across the paper. 

The following remarks of Hawkins, J., in the Cirencester Case, 1893, 
4 O'M. & H. 194, have often been quoted and followed : 

" We ought to interpret the Ballot Act liberally and subject to 
other objections to give effect to any mark on the face of the paper 
which in our opinion clearly indicated the intention of the voter, 
whether such marks were in the shape of a cross or a straight line 
or in any other form, and whether made with pen and ink, pencil 
or even an indentation made in the paper and whether on the right 
or left hand of the candidate's name or elsewhere within his compart- 
ment on the voting paper. 

" There are some marks, however, which undoubtedly gave us 
much trouble to discover what was the real meaning of them . . . 
There we're some marks and blotches of a very irregular character 
which might well be mistaken as indications of temporary unsteadiness 
if the voters who by their unsteadiness, imperilled their votes. 

" In such cases, we have done our best to discover whether 
although obscured by blots, blurs and other marks, there existed posi- 
tive indications on the part of the voter to vote without a thought of 
leaving behind a trace to enable him to be identified. 

" It has been argued before us if the marks were such as might lead 
to the identification of the voter, that would be quite sufficient to 
vitiate and render void the vote. That is not our opinion. 

" We think we ought to adhere to the language of the statute 
itself, which says that the voter can (not might possibly) be identi- 
fied ; whether the mark is such is a matter of fact." 

A Cross is Essential. — In the South Wentworth Case, 1879, Hod- 
gins 531, before Moss, C'.J.O., and Gait, J., Moss, C.J.O., discussed the 
necessity for a cross as follows : 

" The second class of cases reserved is that of voters who chose 
to mark their ballots with a straight line, instead of anything approach- 
ing to the form of a cross, opposite the name of a candidate. 

" The decisions in our Courts upon the provisions of the Dom- 
inion Act, which do not appear to be distinguishable, are against the 
validity of such votes. But it is urged that these decisions are irre- 
concilable with and should be treated as overruled by the judgment of 
the Court of Common Pleas in England in Woodward v. Sarsons, 
L. E. 10 C. P. 746. 

" We were much impressed with the force of Mr. McCarthy's 
argument upon this point ; but, upon consideration, we do not think 
it can be sustained. The judgment of the English Court proceeded 
upon the ground that the making of the cross was merely directory 
and not mandatory. There is no reference to a cross in the enacting 
part of the Imperial Statute, but it makes its appearance for the 
first time in the instructions for the guidance of voters. 

" It is in fact simply given as the appropriate mode for the 
voter indicating his choice. In our statute, it is very different. It is 
expressly enacted that the voter shall mark his ballot in the manner 
mentioned in the direction by placing a cross on the right hand side, 
opposite the name of the candidate for whom he desires to vote. 
The natural and obvious meaning of this language is that he must 
make a cross to signify his choice. The whole policy of securing 



NECESSITY OP A CROSS ON BALLOT. 



157 



secrecy precludes the suggestion that the voter is at liberty to make 
any mark he pleases ; and the Legislature has therefore prescribed 
a kind of mark _ which is the easiest and most familiar— that indeed 
which is used by the illiterate." 

" In view of the difference between the English Statute and ours, 
we do not feel at liberty to refuse to follow the decisions of our own 
Courts. 

" We may observe that this conclusion seems to be justified by 
the amending Act of 1879, which enacts that a voter may mark his 
ballot paper with a cross, either (as heretofore) on the right hand 
side opposite the name of the candidate for whom he desires to vote, 
or any other place within the division which contains the name of 
the candidate (while removing the objection as to the precise position 
of the mark in the compartment, this seems, to insist upon its form 
being retained.) 

Mark Made or Omitted by Deputy Returning Officer. — With- 
out the eixiception contained at the end of s. 116, in uniform series of cases 
it had been held that an elector who had complied with every requirement 
of the law in marking his ballot, was nevertheless liable to have his vote 
destroyed by the wrong or improper act of an election officer in dealing 
with his ballot paper. By 42 V. c. 4, s. 18 Ont., this contingency was 
provided against by enacting that ballot papers should not be rendered void 
by " words or marks corruptly or intentionally or by mistake written or 
made, or omitted to be made, by the deputy returning officer." The Domin- 
ion Act in 1905 contained no such provision. In one of the polls in 
the Wentworth Dominion Election, the deputy returning officer marked on 
the back of each ballot paper handed out by him a numbeV which corres- 
ponded with the number of the voter in the poll book. Meredith, C.J.C.P., 
after ex;amining the authoriues, reluctantly held that the ballots must be 
rejected and applied the principle of Woodward v. Sarsons and declared 
the election null and void. As the number of ballots so dealt with was 
greater than the majority of tne candidates returned, he was elected. In 
the Supreme Court, 36 S. C. K. p. 497, this judgment was affirmed although 
the Court was divided, 3 to 2. In consequence of this decision, the 
Dominion Election Act was amended. 

The proviso at the end of s. 116 has reference to marks improperly 
made. 

Peculiarities in Connection -witli Form or Position of Cross 
(Not Fatal).— In re Muskoka Provincial Election, 1902, 4 O. L. R. 253, 
a ballot marked with a cross upon the upper line was held good, thus : 



1 


BRIDGLAND. 


X 


2 


MAHAFii'y. 





In the same case, a ballot marked with a cross above the upper line, 
was held good. 

X 



1 


BRIDGT.AND. 




2 


MAHAFFY. 





A cross made with ink gopd. A cross made with coloured pencil or 
with coloured ink is probably not good. A cross made with a worn and 
defective pencil so that there is only the impression of a cross on the 



158 



POSITION OF CK08S ON" BALLOT. 



paper was held good. South Oxford Provincial Election, 1914, 32 O. L. 
R. 1. 

Section 102 of the Election Act, R. S. O., 1914, c. 8, directs that 
the voter shall mark his ballot by " making a cross with a black lead- 
pencil." This direction is not imperative. Re South Oxford Provincial 
Election Case, supra. 

In re West Huron Provincial Election, 1905, 9 O. L. R. 602, Mac- 
lennan, J.A., held the following ballots valid; the only question involved 
being as to the sufficiency of the mark as a cross : 



3189 


1 


CAMEHON. 




2 


HOLMES. 


/\\ 




4183 


1 


CAMERON. 


& 


2 


HOLMES. 




. 


9493 


1 


CAMERON. 


X y 


2 


HOLMES. 


! 
i 



Position of the Cross. — A cross outside of compartment in which a 
candidate's name appears, is good. All above the first candidate's 
, name may be regarded as Ms compartment, or all below the last candi- 
dates' names as his. Accordingly in West Elgin, 2 E. C. 41, ballots 
marked outside of the vertical line separating the candidates' numbers 
from their names were allowed. North Bruce, unreported, to the con- 
trary, was on an express provision of the Act in question directing the 
cross to be made in the white space containing the name of the candidate. 
The Full Court in McKinnon v. McNeil, 1908, 41 N. S. R. 503, followed in 
Re Lennox, 4 O. L. R. 380, holding that all the space above the -top line 
might be regarded as the space of the first candidate. Russell, J., said : — 

" I make no comment on the ruling quoted from the English case 
of Woodman v. Sarsons, L. R. 10 Q. B., at 746, that the rules as to the 
manner of marking the ballot were, except as to the requirement of 
secrecy, merely directory. That ruling was doubtless correct as ap- 
plied to the English statute, but the English statute differed in this 
respect from the Ontario statute. There was no enactment in the Eng- 
lish statute similar in terms to that of tbe Ontario statute providing 
that the voter ' shall mark his ballot in the manner mentioned in the 
directions.' The dmerence between the two statutes will be seen by 
comparing s. 25 of the English Act . . . with s. 103 of the 
Ontario Act, R. S. 0. 1897, p. 130. Yet, notwithstanding this difference, 
Mcl/ennan, J., held that the ballot was well marked above or below 
the top or bottom line. I tjiink we are safe in following the Ontario 
decisions, notwithstanding the differences, which are of form, but not 
I think of substance, between our own and the Ontario statute." 

Torn Ballots. — In Woodward v. Sarsons & Sadler, 1875, L. R. 10 
C. P. 733, the ballot was torn through the middle but was held good. 



TORN BALLOTS. 159 

1,374. 



SAESONS. 



WOODWARD. 



(Dots show where paper torn.) 

In South Wentworth, 1879, Hodgins 531, a marked half only of a 
torn ballot was placed ' in tTie box by inadvertence, a new ballot being 
rejected; the ballot was held good. In West Huron, 189S, 2 Elec. Cas. 
58 at p. 62, a substantial nart of the ballot, the part having the official 
number upon it, had been torn off and was wanting, and was disallowed. 
In re West Huron Provincial Election, 1905, 9 O. L. R. 602, a ballot 
torn in two and pinned together, no part of it being absent or wanting, 
was held to be a good ballot. ' The ballot bore evidence that it had been 
folded up in many narrow folds and the election judge inferred that it was 
torn in opening it by .the deputy returning officer in the presence of the 
agents who made no objection to the ballot. Maclennan, J.A., followed in 
Re West Elgin (No. 1) 1898, 2 Elec. Cas. 38, and held the ballot good." 

In re Prince Edward Provincial Election, 1900, 4 O. L. R. 255, the 
Deputy Returning Officer in detaching counterfoils from ballots used in 
provincial elections, tore away a part of the ballot paper in a number of 
cases so that the candidates' numbers which should have appeared on the 
ballot paper, were detached. Osier, J.A., in allowing the ballots, said : — 

" Sub-section 2 appears to be the only section which contains 
any positive enactment, as to what is required to be printed on the 
face of the ballot paper, aside from its mere form. Nothing more 
seems necessary than the names of the candidates. For the rest the 
ballot papers may be in the form given in th& schedule. That Is 
directory ; and the form, no doubt, shews a number in a compartment 
to the left of the candidate's name, indicating the order in which it 
appears on the paper. 

" I am unable to say that this number must be regarded as an 
essential part of the ballot paper. On the contrary, I feel no doubt that 
it is not. 

" It was argued that the omission of the compartment contain- 
ing the candidate's number left so much less space in which the voter 
might make his mark. I think it leaves him less room to go wrong. 

" And it was said that the voter who was unable to read might 
yet be able to recognize a number and be able to mark his ballot 
opposite the candidate's number. Perhaps in this way the number 
might be an aid to an illiterate voter ; but, in the absence of any 
positive enactment (apart from colouting), I ought not to hold that 
the error of the Deputy Returning Officer in tearing off that number 
works the destruction of the ballot, nor should we strain the Act in 
favour of the illiterate voter. Section 106 goes far enough in that 
direction. 

" I should have thought that s.-s. 4 of s. 69 required the name of 
the electoral district to be printed on the face of the ballot paper. The 
form, however, shews it printed on the back beneath the number of 
the ballot paper. 

" Sub-section 2 is the mandatory clause as to what is to be 
printed on the face of the ballot paper, and, as that says nothing 
about the number of the candidate, I conclude that such number is 
not a material part of it." 

Sealing Ballots in Packets. — In Re Ottawa Municipal Election, 
1895, 26 O. R., the. deputy returning officers in two wards failed to seal 
the ballots in packets. On a recount the County Court Judge refused 
to count the ballots. Boyd, C, refused a mandamus to compel the count- 
ing and said : 



160 STATEMENTS TO BE MADE BY DEPUTY E.O. 

" Now when the provisions of the statute have been followed the 
ballot papers come before the County Judges carrying their own 
authentication, as being those which were sealed up at the close of the 
first count ; for section 166 provides that any indorsement appear- 
ing on any package of ballot papers produced by the clerk shall 
be evidence of such papers being what they are stated to be by 
the indorsement. But without this, how can the Judges know that 
the unsealed and unsecured ballots are the same and in the same 
state and condition as when deposited by the voters? Because 
no means are given upon the recount by which he can take evidence 
to shew with what other or equivalent care and custody the ballots 
have been protected. 

" The Judges, perhaps, might have a discretion to proceed with 
the recount, assuming that all is right, as suggested by Hagarty, C.J., 
in In re Centre Wellington Election, 44 U. O. K. 132 ; but, speaking 
for myself, I think the better course was to hold their hand, as the 
plain provisions of the statute had been disregarded. No special harm 
results from this, except that the summary recount cannot be adopted 
in the present cases, and the parties complainant must resort to the 
usual quo warranto remedy, which is expressly preserved by the Act : 
section 164." 

Note. — The provision embodied in s. 166 referred to by Boyd, C, 
has been eliminated from the Act It stiU appears in the Manitoba Act, 
R. S. M. 1013, c. 133, s. 149. 

119. — (1) The deputy returning officer shall make out 
a statement in duplicate of — ' 

(a) The number of ballot papers received from the 
clerk ; 

(&) The votes given for each candidate and the re- 
jected ballot papers ; 

(c) The used ballot papers which have not been ob- 
jected to and have been counted; 

(d) The ballot papers which have been objected to, 
but which have been counted by the deputy 
returning officer ; 

(e) The rejected ballot papers; 

(/) The cancelled ballot papers ; 

(g) The declined ballot papers; 

(h) The unused ballot papers ; 

(i) The number of voters whose ballot papers have 
been marked by the deputy returning officer 
under s. 109. 



EETUENING BALLOT BOX TO CLERK. 161 

(2) One statement shall b& attached to the poll book, 
and the other shall be enclosed in a special packet and 
delivered to the clerk. 

(3) The statement shall be signed by the deputy- 
returning officer and the poll clerk and such of the candi- 
dates or their agents as are present, and desire to sign it. 

(4) The deputy returning officer shall deliver to such 
of the candidates or their agents as are present, if re- 
quested to do so, a certificate of the number of ballot 
papers counted for each candidate, and of the rejected 
ballot papers. New. See 8 Edw. VII. c. 3, s. 117. 3 & 4 
Geo. V. c. 43, s. 119 (1-4)- 

Omission to luahe Statement. — There Is nothing in the Act 
making invalid or void the votes cast at any particular poll in case the 
deputy returning officer has failed to comply with the requirements of the 
Act after the close of the poll. The Ontario Election Act, s. 127, gives 
the returning officer authority ' in such a case to examine on oath the 
deputy returning officer, poU clerk or other person respecting the matter, 
but there is no corresponding provision in the Municipal Act. See Be 
Prince Edward. Provincial Election, 1905, 9 O. L. E. 463. 

120. The poll clerk, immediately after the completion 
of the counting of the votes, shall take and subscribe an 
oath similar to that required by s.-s. 3 of s. 122, to be 
taken by the deputy returning officer. New. See 8 Edw. 
VII. c. 3, s. 119. 3 & 4 Geo. V. c. 43, s. 120. 

121. The poll book, the voters' list, the packets con- 
taining the ballot papers, and all other documents which 
served at the election, except the duplicate statement, 
shall then be placed in the ballot box. Neiv. See 8 Edw, 
VII. c. 3, s. 118. 3 & 4 Geo. V. c. 43, s. 121. 

122. — (1) The deputy returning officer shall then im- 
mediately lock and seal the box, and any candidate or 
agent present may also affix to it his seal, and the deputy 
returning officer shaU then forthwith deliver it personally 
to the clerk, or if he is unable to do so owing to illness or 
other imperative cause, he shall deliver it to the poll clerk, 
or where the poU clerk is unable to act, to some person 
chosen by the deputy returning officer for the purpose of 

M.A. 11 



162 OATHS TO BE MADE BY DEPUTY AND POLL OLEEK. 

delivering it, and shall on it or on a ticket attached to it 
write the name of the person to whom the ballot box has 
been delivered, and shall take a receipt for it, and the poll 
clerk or person so chosen shall forthwith deliver the bal- 
lot box personally to the clerk and shall take and sub- 
scribe before him, the oath, Form 12. New. See 8 Edw. 
VII. c. 3, s. 120 (1). 



FORM 12. 

Oath of Poll Clebk oe Messengek where the Deputy Retuening 
Ofpicee is Unable to Delivee the Ballot Box to the Ketuen- 
iNG Ofpicee. 

I, swear that I am the person to whom 

deputy returning oflScer for polling sub-division No. , of the 

of entrusted the ballot box for 

the said poUing sub-division to be delivered to the clerk ; that the ballot 
boa which I delivered to the clerk this day is the ballot box I so received; 
that I have not opened it and that it has not been opened by any other 
person since I received it from the deputy returning officer. 
Sworn before me at 

this 
day of 19 . 

3 & 4 Geo. V. c. 43, Form 12'. 

(2) In cities and towns, the deputy returning officer, 
or in case of his inability, as mentioned in s.-s. 1, the poU 
clerk or the person chosen, shall proceed directly from 
the polling place to the office of the clerk with the ballot 
box, and there personally on the same day, as soon as 
possible after leaving the polling place, deliver it to the 
clerk, and the poll clerk or the person chosen shall take 
and subscribe before him the oath. Form 12, and the clerk 
shall remain in his office on the evening of the polling day 
until all the ballot boxes have been returned to him. 3 
Edw. VII. c. 19, s. 177 (4), first part amended. 

(3) Forthwith thereafter the deputy returning officer 
shall take and subscribe the oath, Form 13, and shall per- 
sonally deliver it or transmit it by registered post to the 
clerk. New. See 8 Edw. VII. c. 3, s. 120 (2) ; 3 & 4 Geo. 
V. c. 43, s 122 (1-3). 



FOHM OF OATH. 163 

FOEM 13. 

Oath of Deputy Rettjkning Officee After Closing of the Poll. 

.1, A. B., Deputy Returning Officer for Polling Subdivision No. , 

of the City {or, as the case may Be) of in the County , 

swear that, to the best o( my knowledge and belief, the poll book kept for 
the said poUing place under my direction has been kept correctly, that 
the "total number of votes polled according to the said poll book is , 

and that it contains a true and exact record of the votes given at the 
said polling place, as the said votes were taken thereat ; that I have 
correctly counted the votes given for each candidate, in the manner by law 
. provided, and performed all duties required of me by law, and that the 
statement, voters' list, poll book, packets containing ballot papers, and other 
documents required by law to be returned by me to the Clerk, have been 
faithfully and truly prepared and placed in the ballot box, and are contained 
in the ballot box returned by me to the Clerk, which was locked and 
sealed by me, in accordance with the provisions of >the Municipal Act, 
and remained so locked and sealed while in my possession. 
Sworn before me at 
in the County of 
■this day of , 19 

A. B. 

3 & 4 Geo. V. c. 43, Form 13. 

Importance of the principle of the inviolability of the ballots cast: 
E. ex rel. Hewson v. Riddell, 14 O. W. R. 49. Upon a scrutiny it was 
found that the ballot papers bad been tampered with, and there was also 
a breach of the Act in that the deputy returning officer took the ballot box 
to his own house instead of to the town clerk. It was impossible to say 
that the result of the election had not been affected thereby, and the election 
was set aside : R. ex rel. Ivison v. Irwin, 4 O. L. R. 192. 

Judicial Duties of Returning Officer on Foiling Day. — In 

Pritchard v. Bangor, 1888, 13 App. Cas. 241, 57 L. J. Q. B. 313, in the . 
House of Eords, Lord Watson said:- — 

" Certain judicial duties are committed to the returning officer. 
He is to decide upon the validity of ballot papers, and his decision 
remains final, if not challenged and reversed in an election Court. But 
so far as regards the taking of their votes from the electors, and the 
reporting of the result of these, it appears to me that his duties are 
purely ministerial. He is to count the votes, and when he has done 
so, and has ascertained the number given for each of the candidates, 
he is to make a declaration of the number of the votes and of the 
persons who hav« received the greater number Having done that, 
he is functus offlcio." 

Absence of Deputy Returning Officer. — In R. ex rel. Watter- 
worth V. Buchanan, 1897, 28 O. R. 852, this was held not to be fatal, as 
the result was not affected. During one of the Deputy Returning Officer's 
absences, the Returning Officer acted and placed the Deputy Returning 
Officer's initials on the ballots which were cast. This, of course, should 
not have been done, as the Returning Officer had no more right to act 
than any other person. Interruption from illness or absence should be 
dealt with as provided in s. 128. 

In R. V. Durocher, 1913, 28 O. L. R. 499, an information was laid 
for an offence under s. 193 1 (b) of the Consolidated Municipal Act, 1903 
(now 138 (c) j and clause (3)' of s 193, provided a penalty. It was held 
that the offence was punishable by indictment, and that the magistrate 
should not be prohibited from taking the preliminary examination. 

In the Appellate Division, Meredith, C.J.O., considered that the order 
might be supported on the ground " that the act for which the appellant' 



164 SECEECT OF THE BALLOT. 

has been prosecuted is prohibited by s.-s. (1) of s. 193 of the Consolidated 
Municipal Act, 1903, and the penalty, the provision for which it is con- 
tended excludes the right to proceed by indictment, is prescribed by a 
later and substantive clause (s.-s. (3) )." 

But see other grounds assigned discussed, infra, a. 138 (c). 

Taking Ballot Box Airay. — In R. ex rel. Ivision v. Irwin, 1902, 
4 O. Ij. R. 192 at p. 197, MacMahoi, J., said : 

" Although the deputy returning officer said that when taking 
the ballot box from the poll to the office of the town clerk, he only 
called at his own house for a few moments, his taking the ballot 
box there was violating a very stringent provision of the Act. . . . 
This together with the finding by the County Court Judge that a 
large number of the ballots had been tampered with after the papers 
had been placed in the ballot box, renders it impossible to say that 
such irregularities did not affect the result of the election." 

Secrecy of the Ballot. — The Act contains many sections aimed at 
ensuring the secrecy of the ballot, viz., s. 88 requiring a screened com- 
partment for voting ; s. 106 requiring a voter to retire to the compart- 
ment to vote and to fold his ballot so as to conceal his vote; s. 107 forbid- 
ding any person to enter the compartment while a voter is in it; s. 108 for- 
bidding the taking of a ballot out qf the polling place; s. 112 forbidding 
unauthorized persons to be present in the polling place ; ss. 131, 132 and 
133 requiring secrecy on the part of election officers and voters ; s. 134 
requiring an oath of secrecy from election officers ; s. 135 requiring election 
officers to notify the Attorney-General of violations of the law as to sec- 
recy and s. 136 forbidding the disclosure by any person in Court of how 
he voted. While individual breaches of these requirements have repeatedly 
been held to be mere irregularities, general violation of secrecy has been 
held to be fatal. In Hickey v. Orillia, 1908, 17 O. L. R. 317 D. C., a by-law 
was quashed because of violations of secrecy. Riddell, J., in the D.C., said : 

" The manner in which this election was conducted seems to me 
to be a violation of the principles upon which an election under the 
Act should be conducted — that is, I conceive, the meaning of the odd 
expression ' the principles laid down in this Act.' To mention but one : 
secrecy is a great desideratum under the Act, and all the provisions 
for securing secrecy were disregarded. It is, of course, obvious that 
, in an election involving a social question, complete secrecy is of the 
very greatest importance — absolute secrecy, so .that by no means 
may a voter's decision come to be known. 

" It is unnecessary to consider if the irregularities as a fact did 
not affect the result of the election. The saving virtue of s. 204 is 
only effective if the two concur, viz. : (1) that the election was coil- 
ducted in accordance with the principles laid down in the Act; and 
(2) that the irregularity did not affect the result of the election. 
The evidence is not such as to enable us to find one way or the other." 

" As I am of opinion that there has been a disregard of the 
principles so laid down, it follows that the people have not declared 
their will in the only way in which they are authorized and empowered 
to do so." 

The following is a summary of the violations : 

At Poll No. 1 in the front part of a store, with two compartments, the 
place was not large and was full all the time. Three or four ballots were 
out at a time. Messenger boys were running in and out all the time. 
Relatives of owner of the store were passing through all day long even 
where the deputy returning officer was. They and the boys could see how 
people voted if they wished. Voters instead of waiting to get into com- 
partments marked ballots wherever they could. Voters seemed to be voting 
together "one in on top of the other as it were." 

At Poll No. 2, a fire hall, there was always a crowd of voters waiting 

to vote. Three or four ballots were out at once. Ballots were marked 

on the window sill, on the engine, on the reel and on the hose-cart." 



SBCEEOT OF THE BALLOT. 165 

Two persons were in a compartment together on two occasions. People 
who had no business came in to the polling place and " chatted around the 
engine." The people were close to the voters. Any person who wished 
to could see how " a person was voting." Boys went in and out with 
badges. One voter admitted seeing how another voted. 

At Poll No. 3 in the Council Chamber there were two compartments. 
Sometimes four sets of ballots were out at a time. As many as thirty 
people were in the polling station waiting for ballots, at one time. Boys 
were going back\vard and forward through the polling station. People 
who were not entitled tb vote, were coming in and out. 

Note. — In this case the polling sub-division contained too many voters 
contrary to the provisions of Part XIX. and this was a further ground 
for quashing the by-law as was the circumstance that many voters were 
prevented from voting by the crowds of voters ahead of them. Meredith, 
C.J., upheld the by-law by an application of the curative section, but was 
reversed by the Divisional Court. 

In Stoddart v. -Owen Sound, 1912, 27 O. L. R. 221, Lennox, J., had 
to consider numerous violations of secrecy of which the following is a 
summary : 

" Polling sub-division No. 1 : A busy poll. A room for the return- 
ing officer. An average of fifteen to twenty persons there at a time. 
Two other rooms used as voting compartments. A table in one of 
these where the voter marked his ballot. The other supplied with 
three desks for the same purpose. As to this the witness said on 
cross-examination that the desks were about seven feet apart, and if a 
man wanted to mark his ballot secretly he could do it. There was no 
division between the desks. 

" Sub-division No. 2 : A school-house. A class-room served for all 
purposes. Not more than eight or nine people in the room at one 
time. Two compartments were formed by a blackboard placed six 
feet from the waU, forming a lane, and this lane waUed across in the 
centre by a map. This formed compartments of a sort, each open 
at the end. This opening was six feet wide, and without screen. 
This was in the morning. Later, as the witness puts it, they ' made ' 
three more compartments; but the making consisted in allowing the 
voters to mark their ballots on window-sills. These windows were 
three or four feet wide. 

" Sub-division No. 3 : The officer was in a room behind a shop. 
Behind this was a kitcnen, in size about nine by twelve feet. One 
witness said it was a little larger. There were three places pro- 
vided in this kitchen for voting. One was in a corner, screened. It 
is said that the voter in this could be seen, but could avoid being 
seen. The other two voting places were a table and a stove. These 
points open from all sides. Usually — or often at all events — three 
voters voted in this kitchen at the same time. 

"Sub-division No. 4: This was in a dwelling-house. The deputy 
returning officer occupied the kitchen. There were 212 votes cast. 
Said to have been " a rush of votes." There was no attempt at 
providing screened compartments. A small room was behind the 
deputy's room. Two tables there. Voters marked their ballots at 
these. Usually two in this room at a time. There were doors leading 
from this room outside, which the voters could open. In addition, in 
the deputy's room there were many places for marking ballots: on 
the sink, on the sideboard, and the walls. There was an average of from 
eight to fourteen persons in this room during polling. It is sworn 
that at times there would be in all as many as five voting at once; 
that the way persons were voting could be seen by people in the 
polling-place standing about. 

" Sub-division No. 5 : One room used. Including officers and 
agents, about twenty persons in the room during voting. Great num- 
bers voting at once, at one time, about noon, running up to eight 
or nine. At busy fimes marked their ballots anywhere — on window 
sUls, desks, and the like. There were several witnesses as to this 
polling place. The -deputy returning oflicer swore. There were 
. three illiterate voters. It was a busy time. Difficult to keep up. 
Began with four voting-places. Three other places adopted — ' any- 



166 SBCBEOY OF THE BALLOT. 

where the voter could find a place.' ' Eight or ten at my desk at a 
time, and six- or eight voting ahout the room. Nothing to prevent 
Seeing a voter voting, but might not see how he voted.' 

" Sub-division No. 6 : No screens or compartments. Five or six 
voting, and as many waiting, at a time. Marlied their ballots any- 
where. Three illiterate voters. Deputy returning officer marked for 
one ; and Alexander Wright, a scrutineer, and the other scrutineer, 
marked for the other two. About twelve or fourteen voting and 
waiting at times. Wright swears that some parties sat down at his 
desk to mark their ballot. When rush on, not told where to go. 

" Sub-division No. 7 : The deputy returning officer swears that 
until the middle of the day from five to thirty present. As many 
as eight or nine voting at once. A great many people, perhaps as 
many as twenty or thirty, present wheii these voted. There were 
two tables where ballots were marked, and other voters had to pass 
these, and could see, if they looked down. A scrutineer swore four 
tables provided for voting. School desks also ilsed. Voters told to 
go anywhere. Possibly as many as ten voting at once. There were 
302 votes polled. Nothing to prevent seeing how ballots were marked. 
Three or four illiterate voters' ballots marked right at the desk. Crowds 
standing around could see how these ballots were marked and hear 
what was said. 

" Sub-division No. la : Two compartments, but more than one 
voter allowed into them at the same time, and the vote there was 
sworn not to have been secret (see Karn's evidence). They votpd also 
on desks, four or five at a time, and as many waiting to vote. Three 
illiterate voters. These ballots were marked at deputy's table. 
There were men standing near who could see how these ballots were 
marked. It is sworn, too, that persons passing the compartments 
could see in. They selected any desks they liked. 

" Sub-division No. 9 : Irregular. Want of secrecy, but an average 
of only eight or nine present. 

" Sub-division No. 10 : Margaret Wright was in and out a good 
deal. Her mothe'r, Mrs. Wright came to vote, but left without Voting. 
This lady came again, and her daughter Margaret says she stood by and 
saw the officer mark her mother's ballot, and that she could have seen 
how it was marked. Mr. . . . swears he voted at No. 10. Others 
voting at the same time. Voted at table, and another voter at this 
table, too. They compared ballots. Four more waiting. 

" Sub-division No. 11 : As usual, people were allowed to loiter. 
There is evidence of irregularities, but nothing serious, and I attach 
no great importance to them. ' 

" Sub-division No. 13 : No adequate provision for secrecy. One 
of the voting compartments composed of chairs piled up, I do not 
know how." 

Upon the foregoing facts, he commented as follows : 

" It is frequently said that in municipal contests and voting upon 
by-laws we must not look for literal compliance with every provision ~ 
of the statute. I quite agree. There will always be cases arising in 
which the provisions of the Act being, in the main, substantially 
complied with, the Courts will, even without reference to s. 204, 
overlook isolated and trifling irregularities. 

" Section 204, which is, by s. 351, made applicable to voting on 
by-laws as well, enacts that ' no election shall be declared invalid 
. . . by reason of any irregularity, if it appears to the tribunrl 
having cognizance of the question that the election was conducted 
in accordance with the principles laid down in this Act, and that 
such non-compliance, mistake or irregularity did not alloct the result 
of the election.' 

" This section clearly indicates the bounds beyond which I ought 
not to go. The onus of shewing that the omission, mistake, or irre- 
gularity did not affect the result is upon those who assert that it 
did not : re Hickey and Town of Orillia, 1908, 17 O. h. R. 317. There 
was no attempt made to prove that the result was not affected by 
the conditions which generally characterized this election; and, although 



SBCEECT OP THE BALLOT. 167 

there-is a considerable difference in the votes pro aiul con, I am \ery 
far from being able to say that with these conditions eliminated, and 
the statute complied with, the majority might not have been the other 
way. 

_ " But, at most, this is only a secondary consideration. The 
initial condition is, that the by-law is submitted, and the vote taken, 
in accordance with the principles of the Act. Without specific provi- 
sions at all, a ballot per se imports secrecy ; and, when voting by 
ballot was adopted, the Legislature thereby wholly abandoned ijnd 
repudiated open voting. With this, and the specific sections referred 
to secrecy is now a basic principle of our municipal voting ; and, if 
it is important in a municipal contest, it is vital in a vote upon a tense 
social question such as this. 

" It is not enough to say that the method pursued was just as 
good as, or even better than, the statutory method. It is the statutory 
method that gives meaning and validity to the vote. The vote with- 
out the statute is of no effect, is meaningless, binds nobody. 

" Almost every witness was asked, ' Could the voters not conceal 
their votes if they wanted to?' That is not enough. The dangerous 
voter, the bribed voter, is the one who does not want to conceal his 
vote. The aim of the statute is not alone that the voter can conceal, 
but that while voting he shall not disclose — shall not be in a position 
to disclose — how he votes. To ignore the observance of the latter 
requirement would be to enable the bribed voter to prove himself 
entitled to the bribe, and thus remove one of the greatest obstacles from 
the briber's path. 

" There was no evidence as to polling sub-division number 12. In 
all the others there were grave, if not gross, irregularities, and in 
eleven out of a total of fourteen sub-divisions the voting, speaking of it 
generally, was characterized throughout by a flagrant, callous, and 
wholly inexcusable disregard of the plain provisions of the statute. 

" The irregularities are somewhat of the same class, but disregard 
of the law was far more general in this case than in Re Hickey and 
Town of Orillia, 17 O. L. R. 317; Re Quigley and Township of Bastard, 
1911, 24 O. L. R. 622 ; or Re Service and Township of Front of Escot, 
1909, 13 O. W. R. 121.5. 

" It cannot be argued for a moment that the vote in this case was 
taken in accordance with the principles of the statute, or that there 
was an opportunity afforded for ' a full, fair, and untrammelled vote 
of the electorate ;' and I find that this vote was not so taken. 

" Nor can it be contended that what took place on the 1st .Janu- 
ary last was a bona fide submission of a repealing by-law, within the 
meaning of 6 Edw. VII., c. 47, s. 24, or — subject of course to the 
discretionary will of the council — that this so-called submission and 
vote stand in the way, or should be allowed to stand in the way, of the 
exercise of the people's franchise upon this question until January, 
1915 ; and I find that it was not a bona fide submission or vote, within 
the meaning or intent of s. 24." 

In Re Sinclair and Owen Sound, 1906, 12 O. L. R. 488, there was a 
failure by deputy returning oflBcers and poll clerks and agents to take the 
oath of secrecy. This was held to be a mere irregularity and to be cured 
by_s. 204 (now as amended s. 150). In the C. \. 13 O. L. R. 447, the 
point was not discussed as a serious objection. 

In Re Wynn and Weston, 1907, 15 O. L. R. 1, Meredith, C.J.C.P., held 
the provisions of old s. 368 (now 134) to be directory only, and that the 
failure of the officers to comply with its requirements did not affect the 
validity of the election. The D. C. dismissed an appeal. 

In Re Duncan and Midland, 1907, 16 O. L. R. 132 0. A., the same 
baUot boxes, poll books, lists, declarations of secrecy were used on concur- 
rent votings. It was vainly objected that there should be separate declara- 
tions of secrecy in respect of each voting. 

Violation of Oath of Secrecy. — In Re Sturmer and Beaverton, 
1911, 24 O. Ii. R. 65, Middleton, J., pointed Qut that the deputy returning 
officers and agents who made affidavits as to what had taken place in 



168 DECLARATION BY CLERK OE RESULT OF ELECTION. 

connection with the marking of the ballot of an illiterate voter, were 
acting improperly and in violation of their oath of secrecy. 

123. The clerk, upon the receipt of a ballot box, shall 
take every precaution for its safe keeping and for pre- 
venting any other person from having access to it, and 
shall immediately on the receipt of it seal it with his 
own seal in such a way that it cannot be opened without 
his seal being broken, and that any other seals affixed to 
it are not effaced or covered. New. See 8 Edw. VII. c. 
3, s. 121. 3 & 4 Geo. V. c. 43, 8.123. 

124. A deputy returning officer in a city or town shall 
not under any circumstances take, or allow to be taken, 
the ballot box to his home, house, office, or place of busi- 
ness, or to any house or place except the office of the 
clerk. 3 Edw. VII. c. 19, s. 177 (4), last part amended. 
3 & 4 Geo. V. c. 43, s. 124. 

[Note. — Old s. 177 (6), providing for clerk determin- 
ing disputes between D.B.O. and agents on day following 
the poll, struck out, as D.B.O. is required hy s. 176 to 
determine question subject to recowht, etc. The sub-sec- 
tion was enacted before any provision was made for a 
recount.] 

125. Where the holding of the election has been inter- 
rupted, as mentioned in s. 128, the deputy returning of- 
ficer shall delay making his return to the clerk until the 
polling has taken place. New. 3 & 4 Geo. V. c. 43, s. 125. 

126. The clerk, after he has received the ballot papers 
and statements of the number of votes given at each 
polling place, without opening any of the sealed packets 
of ballot papers, shall cast up from the statements the 
number of votes for each candidate ; and at the town hall, 
or if there is no town hall, at some other public place, at 
four o'clock in the afternoon in the case of a city having 
a population of not less than 100,000, and at noon in the 
case of other municipalities on the day following the 
return of the ballot papers and statements, shall -publicly 
declare to be elected the candidate or candidates having 



POSTPONEMENT OE ELECTION IN EMERGENCIES. 169 

the highest number of votes ; and he shall also put up in 
some conspicuous place a statement under his hand, shew- 
ing the number of votes for each candidate. 3 Edw. VII. 
c. 19, s. 178, amended 3 & 4 G-eo. V. c. 43, s. 126. 

at the town hall ......... shall declare 

Making declarations elsewhere may be an irregularity with the curative 
effect of s. 150: R. ex rel. Armour v. Peddle, 9 O. W. R. 393; 14 O. L. R. 
339. 

This section applies to local option contesrts : Re Ellis and Renfrew, 23 
O. li. R. 427. 

127. If, upon the casting up of the votes or upon a 
recount, two or more candidates have an equal number of 
votes, the clerk, or other person appointed by by-law to 
discharge the duties of clerk, whether otherwise qualified 
or not, shall, at the time he declares the result of the poll, 
or after receiving the certificate of the result of the re- 
count, as the case may he, give a vote for one or more of 
such candidates, so as to decide the election. 3 Edw. 
VII. c. 19, s. 179 (1), amended. 3 & 4 Geo. V. c. 43, s. 127. 

As to right of clerk to vote: see s. 60, ante. 

Case of Election not held^ at Proper Time, etc. 

128. If, by reason of a riot or other emergency, an 
election, or the voting at a polling place, is not com- 
menced on the proper day, or is interrupted after being 
commenced and before the lawful closing thereof, the 
returning officer, or deputy returning officer, as the case 
may be, shall hold or resume the election on the following 
day at the hour of nine o 'clock in the forenoon, and con- 
tinue the same from day to day until a fair opportunity 
for nominating candidates has been given or, in the case 
of polling, until the poll has been opened without inter- 
ruption and with free access to voters for eight hours in 
all. 3 Edw. VII. c. 19, s. 184, amended.— See 8 Edw. VII. 
c. 3, s. 5. 3 & 4 Geo. V. c. 43, s. 128. 

Postponement of Election in Case of Epidemic. — The Public 
Health Aot, R. S. O. 1914, c. 218, s. 116, provides. 

(1) Where the provincial board reports to the Lieutenant-Governor that 
on account of the prevalence in any municipality of any com- 
municable disease it would be dangerous to hold an election in 



170 APPLICATION" FOE EBCOUNT. 

such municipality, the Lieutenant-Governor in Council may, of his 
own motion, or upon the application of 'the council of the muni- 
cipality, issue his proclamation postponing the holding of any in- 
tended municipal or school election for a period not exceeding 
three months, and may from time to time further postpone such 
election if, in the opinion of the Board, the necessity for postpone- 
ment continues. 

(2) The Lieutenant-Governor may, by the proclamation, name the days 
for holding the nomination and polling, but, if no days are named 
therefor, the council shall as soon as practicable after the period 
named in such proclamation, or the last of such proclamations, ex- 
pires, by by-law name the days for nomination and polling. 

Recount. 

129. — (1) If within fourteen days after the declara- 
tion by the clerk of the result of' the election, upon the 
application of a candidate or voter it is made to appear 
by affidavit to a Judge of the county or district court of 
the county or district in which the municipality is situate, 
that a deputy returning officer, m counting the votes has 
improperly counted or rejected any ballot paper, or made 
an incorrect statement of the number of ballots cast for 
any candidate, and if within that time the applicant de- 
posits with the clerk $25 as security for the costs in con- 
nection with the recount of the candidate declared to be 
elected, or if at any time within four months after such 
declaration in a city having a population of not less than 
100,000, the council has by resolution declared that a 
recount is desirable in the public interest, the Judge may 
appoint a time and place to recount the votes. 3 Edw. 
VII. c. 19, s. 189 (3) ; 6 Edw. VII. c. 35, s. 22, amended. 

(2) At least two days' notice in writing of the time 
and place appointed shall be given to the candidates 
and to the clerk, and the clerk shall attend the recount 
with the ballot boxes and all documents relating to the 
election. 

[Note.— Old s. 189 (4) and {4a) as to deposit hy ap- 
plicant and as to recount on application hy council of a 
city over 100,000, struck out, being covered hy new s. 
129.] 

(3) The Judge, the clerk, and each candidate and his 
agent appointed to attend the recount, but no other 
person, except with the sanction of the Judge, shall be 
entitled to be present at the recount. 



EECOUNT BY JUDGE. 171 

(4) At the time and place appointed, the Judge shall 
recount all the ballot papers received by the clerk, and 
shall in the presence of such of the persons entitled to be 
present as attend, open the sealed packets containing 
the used ballot papers which A^ere not objected to and 
were counted; the ballot papers objected to, but which 
were counted; the rejected ballot papers; the cancelled 
ballot papers ; and the unused ballot papers. 

(5) The Judge shall, as far as practicable, proceed 
continuously, allowing only time for refreshment and 
excluding, except so far as he and the persons present 
agree, the hours between six o 'clock in the afternoon and 
nine o'clock in the succeeding forenoon, and during the 
excluded time the Judge shall place the ballot papers and 
other documents relating to the election close under his 
own seal, and the seals of such of the persons present as 
desire to affix their seals, and shall otherwise take all 
necessary precautions for the security of them. 3 Edw. 
VII. c. 19, B. 189 (5-7), amended. 

(6) Subject to s.-ss. 3 and 4 the Judge shall proceed 
according to the provisions for the counting of the ballot 
papers at the close of the poll by a deputy returning 
officer, and shall verify and" correct the statement of the 
poll. New. See 8 Edw. VII. c. 3, s. 138. 

(7) If for any reason it appears desirable to do so, 
the Judge upon the application of any party to the pro- 
ceeding may hear such evidence as he may deem neces- 
sary for the purpose of making a full and proper recount 
of the ballot papers. 3 Edw. VII. c. 19, s. 189 (8), par. 1, 
amended. 

(8) Upon the completion of the recount the Judge 
shall seal up all the ballot papers in their separate 
packets, and shall forthwith certify the result to the 
clerk, who shall then declare elected the candidate having 
the highest number of votes. 3 Edw. VII. c. 19, s. 189 
(8), par. 5, amended. 

(9) Nothing in this section shall affect any remedy 
which any person may have under the provisions here- 



172 COSTS OF THE BECOUHTT. 

inafter contained by proceedings in the nature of quo 
warranto or otherwise. 3 Edw. VII. c. 19, s. 189 (9). 
3 & 4 Geo. V. c. 43, s. 129 (1-9). 

130.— (1) The costs of the recount shall be in the dis- 
cretion of the Judge, who may order by whom, to whom, 
and in what manner the same shall be paid. 

(2) The Clerk of the County or District Court shall 
tax the costs and shall, as nearly as may be, follow the 
tariff of costs of the County Court. New. See 8 Edw. 
VII. c. 3, s. 142. 

(3) Where costs are directed to be paid by the appli- 
cant, the money deposited as security for costs shall be 
paid out to the party entitled to such costs, so far as 
necessary. New. See 8 Edw. VII. c. 3, s. 143. 

(4) Payment of the costs may be enforced by execu- 
tion, to be issued from any County or District Court, 
upon filing therein the order of the Judge and a certificate 
shewing the amount at which the costs were taxed and na 
affidavit of the non-payment of them. 3 Edw. VII. c. 19, 
s. 190 (3). 3 &4 Geo. V. c. 43, s. 130 (1-4). 

If it is made to Appear by Affidavit tbat, etc. — In Re Dauphin 
Dominion Election, 1911, 19 W. L. R. 451, the affidavit was based on 
belief only, and Robson, J., said : — 

" It would be impossible that the deponent could have personal 
knowledge to justify his swearing positively to the matters recited 
from his affidavit above. His belief must have been based on informa- 
tion. The sources of the information were evidently satisfactory to 
him, but they may not themselves have been first hand. According to 
the statute, it is to be made to appear to the Judge that wrong has 
been done. The belief of the party making the affidavit does not satisfy 
that requirement. 

" In the Nova Scotia case cited (North Cape Breton and Victoria 
Election, 6 E. L. R. 37, 532), the affidavit was similar, but stated the 
source of the information. Townshend, C.J., referring to the terms of 
s. 193 as to the affidavit, says : ' Does this mean a general statement 
such as is contained in Mr. Gunn's affidavit, or does it mean at least 
some specific instance, in which the deputy returning officer did wrong 
to the actual knowledge of the deponent, or knowledge received from 
a person who witnessed the wrong act? If the latter, there was no 
such affidavit before the Judge on which he could act. It seems to me 
necessary that an actual case of wrongdoing is contemplated by the 
statute before the Judge is justified in ordering a recount of the votes, 
and nothing of this kind was shewn when he made the appointment. 
. . . . As the matter then stands, Mr. Gunn has merely sworn that 
some persons told him that votes had been improperly rejected at the 
election, which some one else may have told them, and that he believes 
such to have been the case.' And Townshend, O.J., sums up thus : 



MANDAMUS TO COMPEL EECOUN'T DOES NOT LIE. 173 

' It is, as I have said, much to be regretted that this speedy and 
comparatively inexpensive method of determining the number of votes 
■should be defeated, for the reasons given ; but I apprehend, when a 
party invokes these provisions of the statute, he is bound to comply 
directly with its terms, otherwise he has no right to call in the County 
Court Judge to make a. recount.' And, after mentioning the importance 
of the matter, he stated that he had felt it to be his duty to adhere 
strictly to what he believed to be the true interpretation and inten- 
tion of the statute. On the ground mentioned, he declined to make 
an order under s. 206. 

" That case fits the present one. The learned Judge's reasoning 
is unquestionable." 

An order for a mandamus requiring the County Court Judge to pro- 
ceed was therefore refused, as in the Nova Scotia case. 

Death, Illness or Absence of the Judge. — In Ke Prince Edward 
Provincial Election, 1905, 9 O. L. R. 463. the jurisdiction of the Deputy 
Judge appointed under ss. 9 and 10 of the Local Courts Act, R. S. O. 
1897, c. 54, to conduct a recount, was upheld. 

Mandamns to County Court Judge.— The Ontario Election Act 
provides for an appeal from the. County Court Judge. The Dominion 
Election Act, s. 206, declares, in case of any omission of the Judge to 
comply with the provisions of the Act respecting recounts, the party 
aggrieved may apply for an order requiring him to proceed. 'There are no 
similar provisions in the IVTunieipal Act. 

In Regina v. Prudhomme. 1887, 4 M. R. 259, on a recount, the County 
Court Judge confined himself to considering the objections noted by the 
deputy returning officer, a mandamus was refused by thp full Court on 
the ground that there was another remedy provided and this principle 
would probably be applied under the Municipal Act (Ont.), for proceed- 
ings to unseat under Part IV. can be resorted to, and in them the ballots 
can be counted and evidence taken as to them which could not be taken 
on a recount. 

In Re Ottawa Municipal Election, 1895, 26 O. R. 106, two County 
Court Judges refused to proceed with two different recounts ; two applica- 
tions were made for writs of mandamus. The Judges stopped because tiie 
ballots were not sealed up in separate packets. Boyd, C, refused both 
applications. With hesitation, he held that the better course for them to 
pursue was to hold their hand. The argument was that there was no juris- 
diction to grant a writ of mandamus as there was a remedy by guo warranto 
which was not dealt with. Counsel for the applicants cited Re Whitaker 
and Mason, 18 O. R. 63 ; In re Marter and. Gravenhurst, iB. 243 ; In re 
Centre Wellington Election, 44 U. C. R. 132 ; Re Canada Temperance Act, 
9 -O. R. 154; Chapman v. Rand, 11 S. C. R. 312 ; Shortt on Information, 
Bl. ed., 252. Of these, note 'the Centre Wellington case, which Killam, J., 
in Regina v. Prudhomme, declined to follow. 

Ballots should he Held Good if Possible. — In Phillips v. Goff, 
1886, 17 Q. B. D. 814, 55 L. J. Q. B. 512, Lord Coleridge, C.J., said :— 

" All reasonable probabilities ought to be taken into consideration 
by the commissioner; and all we can say is, that upon these it is for 
him to decide whether it should be rejected or not. If, however, he is 
reasonably certain that either of the other two views I have propounded 
can be honestly supported from the facts surrounding the case, he 
ought to adopt one or the other of them, and render the vote effectual 
if he can, since the voter clearly meant to exercise his franchise 
somehow or another." 

Prohibition to County Court Judge. — While a mandamus pro- 
bably would not be granted to compel a County Court Judge to proceed, 
an order might be granted prohibiting him from giving a certificate under 
s.-s. 8. WhUe the scope of a scrutiny is wider than that of a recount, the 
conclusions of the Judge are given by certificate as on a recount. 



174 PROHIBITION" OP JUDGE PEOM PEOCEEDING. 

In Re Local Option By-law of Saltfleet, 1908, 16 O. L. R. 293, an 
order was made by Teetzel, J., prohibiting the County Court Judge in his 
certificate from making any allowance for votes illegal because of the dis- 
qualification of the voter and ordering that he be restricted to a scrutiny 
of the ballot papers only, on the ground that certifying the result was a 
judicial act and not a mere ministerial act, and that the Judge might be 
prohibited from allowing his certificate of the result to be affected by any 
matter which he should noi have considered in arriving' at the result and 
to that extent only. This judgment was upheld by the D. C. 

A preliminary objection that the motion was too late, because what 
remained to be done was only a ministerial act, the County Court Judge 
having performed all his judicial functions, and that therefore there was no 
jurisdiction to prohibit him from certifying, was overruled. 

Re Saltfleet was followed in Re Orangeville, 1910, 20 O. L. R. 476, 

In Re West Lome Scrutiny. 1911, 23 O. L. R. 598, 25 O. L. R. 267, 
26 O. L. R. 399, 47 S. C. R. 451, Middleton, J., made an order to prohibit 
the learned County Court Judge from certifying to the municipal council 
that the "by-law bad not been approved by three-fifths of the qualified 
voters voting thereon, until he had made inquiry and ascertained how the 
five spurious voters, or a sufficient number of them to enable him to 
certify, marked the ballots improperly cast and placed in the ballot box, 
and directing the learned Judge to enter upon the inquiry indicated for 
the purpose of ascertaining the facts, necessary to enable him to certify 
as a matter of fact, and not as the result of an assumption that the improper 
votes must be deducted from those cast in favour of the by-law. 

The order was finally Upheld, except in so far as it purported to 
authorize the County Court Judge to inquire how unqualified voters voted. 

In Re Aurora Scrutiny, 1913, 28 O. L. R. 475, a motion for prohibition 
was refused. 

In Re West Lome Scrutiny in the D. C, 1911, 25 O. L. R. 267, at 
281, Teetzel, J., said:— 

" Until the abolition of the numbered ballot in the Ontario Elec- 
tion Act, the Court, upon a scrutiny, could trace the ballot of an illegal 
voter for the purpose of ascertaining how it was marked. But in 
Re Lincoln Election Petition, 4 A. R. 206, the ballots of alleged illegal ' 
voters, with others, had been stolen, so it was impossible to ascertain 
how they were marked, except by evidence of the persons who had 
marked them. The learned Chief Justice of Ontario, in delivering the 
judgment of the Court, at p. 210, says : ' Again, by s. 115 it is ex- 
pressly stated that no person who has voted at an election shall, in 
any legal proceeding to question the election or return, be required to 
state for whom he has voted. Although this does not in express terms 
extend to the case of the voter voluntarily tendering himself as a wit- 
ness, it Is obvious that even in that case he must be subject to cross- 
examination. We think that this section should, in furtherance of the 
objects of the Act, be construed as absolutely exclusive of such testi- 
mony.' Again, at p. 212, the learned Chief Justice says : ' Where it 
is sought to diminish' the majority of the respondent by a vote, two 
things must be proved : firstly, that the voter had ho vote ; and secondly, 
that he assumed to vote for the respondent. In the case put, the 
second is incapable of proof, and the petitioner therefore fails to prove 
that the vote was cast for Rykert and not for Neelon.' 

" In the Haldimand Dominion Election Case, 1 Ont. Elec. Cas. 
529, which was under the Dominion Election Act, where, as in the 
present Municipal Act, the ballot was not numbered and could not be 
traced, Strong, J., at p. 547, says: 'Nothing could be made of this 
charge without admitting the evidence of voters to shew how they 
voted. This, I hold, cannot be done. To do so would, in my opinion, 
be a direct violatio^ of the Act which requires secrecy. Section 7 of 
the Dominion Elections Act enacts : No person who has voted at an 
election shall, in any legal proceeding questioning the election or 
return, be required to state for whom he voted.' It is no answer to 
this to say that secrecy is imposed for the benefit of the voter and that 
he can waive it, for I hold secrecy to be imposed as an absolute rule 
of public policy, and that it cannot be waived.' 



EYIDENOE ON A EECOUNT. 175 

' "'Following these decisions, in R. ex rel. Ivison v. Irwin, 4 D. L. 

R. 192, the late Mr. Justice MacMahon, on an appeal in a quo warranto 
proceeding und€r the Municipal Act, held that the provision of s. 200 
of the Municipal Act must be construed in furtherance of the object 
of the Act as absolutely excluding evidence to shew how the ballot 
was marked. 

" The last judicial pronouncement on the question is by the learned 
Chief Justice of the Common Pleas in Re OrangeviUe Local Option 
By-law, 20 0. L. R. 476, where, at p. 477, he says: 'It is clear, I 
think, that the Judge had no authority to require any person who 
voted to state for whom he voted. Section 200 of the Consolidated 
Municipal Act, 1903, which by s. 351 is made applicable to voting 
on by-laws, forbids that being done, and the other provisions as to 
secrecy of proceedings, sees. 198 and 199, shew how careful the Legis- 
lature has been to keep the secrecy of the ballot inviolate.' 

" It is to be observed that the language of s. 200 is, that ' no per- 
son ' who has voted, etc., not that ' no voter,' etc. ; so that it follows 
that such person, if his name was on the list, is clearly protected if 
he actually voted, although he may not have had a legal right to vote." 

And in the C. A., 26 O. I/. R. at '334, Moss, C.J.O., while agreeing with 
the majority of the Court that the judgment of the D.C. should be reversed, 
.expressly stated his agreement with the view of Teetzel, J.,, given above, 
and the Supreme Court, 47 S. C. R. 451, upheld the view that a Judge on 
a scrutiny has no power to inquire whether rejected ballots were cast for 
or against the by-law. 

In Smith v. Baskerville, 1914, 24 M. R. 349, C. A., under the Municipal 
Act (Man.) of which s. 168 is identical with s. 136, it was proved before 
the County Court Judge on an election trial that eight aliens had voted 
and evidence was given by them that they had voted for the respondent who 
had been declared elected by a majority of three. The O. A. rejected the 
evidence of the aliens as to how they had voted and upheld the election, 
following JRe Lincoln and Re West Lome, supra. 

Evidence on a Reconnt. — In Re Halton Provincial Election, 1902, 
4 O. L. R. 345, five ballots were marked with a plain cross made with 
blue or indelible, or at least not with a common black pencil, and the bal- 
lots were objected to as offending against the requirements of the Act, 
not being marked with the pencil provided by the deputy returning officer 
for the use of voters and thus shewing' marks of some common design to 
disclose the identity of the voters. Osier, J.A., in allowing the ballots, said : 

" On an enquiry of this kind evidence cannot be received by the 
Judge ; he deals with the ballots in the condition in which th?y 
come before him. It might have been just as forcibly argued by the 
counsel . . . that other ballots marked in black pencil were 
objectionable for the same reasons which are urged against these five. 
I do not know, nor do counsel know, nor does the County Judge, that 
the pencil with which these ballots were marked was not supplied 
by the deputy returning officer. Nor do we know on what ground 
that official rejected the ballots in question. 

" All this may appear upon a scrutiny, but with what result as 
affecting these ballots I cannot now say, nor have I the right to express 
an opinion." 

Sub-section 7 corresponds with s. 134 of the Election Act and indicates 
that the Judge can take evidence for the purpose of a recount. This 
probably means as to the identity of ballot papers or as to whether marks 
on them were made by a deputy returning officer or not. In Re West , 
Huron Provincial Election, 1905, 9 O. L. R. 606, the ballots at one poU 
were all numbered to correspond with the numbers of the voters in the 
poll book. Maclennan, J.A., said on appeal: 

"The contention was that all those ballots should have been 
rejected, for the reason that they were all marked on the back with 
the number in the poU book opposite to the name of each voter, and 
that by tiiat means the identity of each voter could be discovered. 



176 SCOPE OF THE RECOUNT. 

" The learned Judge came to the conclusion that the numbers 
were placed on the ballots by the deputy returning officer, and that 
the case was governed by s.-s. 3 of s. 112, and that the validity of 
the ballots was not thereby affected. 

" The learned Judge had ample evidence before him to enable 
him to judge whether the numbers had been placed by the deputy 
returning officer or his poll clerk, evidence which I have not before 
me, the appeal being a limited one, and I cannot review his decision 
on that question of fact. 

" The objection was not urged before me with much confidence ; 
nor could it be, having regard to the decision in Re Russell (2) 1879, 
H. E. C. 519, which decides the very point involved." 

Marks made by D. R. O's. — Cannot be investigated by county judse 
but such ballots should be counted when evidence shows the marks were 
made by D. R. O's. Russell (2) Provincial Elections, 1879, Hodgins, 519; 
Re West Huron, 9 O. L. R. 602. 

A Judge of tie County. — ^This includes a junior Judge. In re 
Worth Grey Provincial Election, 1902, 4 O. L. R. 286, under the Election 
Act, which authorized application to " the Judge of the County," it was 
held that an application to a junior Judge was proper and his jurisdiction 
free from doubt. 

Scope of Recount. — In Re Lennox Provincial Election, 1902, 4 O. L. 
R. 378, Maclennan, J.A., said: 

" It was argued that the learned Judge was confined on the re- 
count to the consideration of cases in respect of which an objection 
was made before the deputy returning officer when counting the votes 
at the close of the poll. This objection was probably suggested by the 
query in Jenkins v. Brecken, 7 S. C. R. 247, a decision upon the 
Ballot Act, 1874, 37 V. c. 9 (D.), which made no provision for a 
recount, otherwise than upon a scrutiny. In support of this conten- 
tion, s. 112 (4) of the Ontario Election Act, R. S. O. 1897, c. 9, was 
cited. That sub-section directs the Deputy Returning Officer to take 
a note in a prescribed form of any objection made to any ballot founrt 
in the ballot box, and to decide any question arising out of the objec- 
tion; and declares that his decision is to be final, subject only to revbr- 
sal on a recount by the County Court Judge on petition questioning 
the election or return. Section 124 was also cited as supporting that 
contention. I am, however, clearly of opinion that there is nothing 
in the contention. What s. 112 (4) says is that the decision of the 
deputy returning officer is subject to reversal, not on appeal to the 
County Judge, but on a recount. And s. 112 (4) says that the County 
Judge is to appoint a time, and give notice of a time and place at 
which he will proceed to recount the votes. This is the expression 
which is used in several other sub-sections of s. 124 ; and, finally, s. 
126 directs that at the time and place appointed, the County Judgp 
shall proceed to recount all the votes or ballot papers returned by the 
several deputy returning officers. All this makes it clear that the 
County Judge is not confined on the recount to an examination of the 
ballots to which objection was made before the deputy returning officer, 
and I therefore overrule the objection." 

Ballot Papers Sticking Together. — This apparently happened in 
Re West Huron Provincial Election, 1905, 9 O. I/. R. 602. The ballots 
were numbered as required by the Election Act (Ont.). The County 
Judge said : 

"Mr. . . ■ contende(i that as 5359 was returned as a spoiled 
ballot it must be so regarded and could not have gone into the ballot 
box. He suggests that these two ballot papers were handed out by 
the_ deputy returning officer as one ballot paper, adhering together, 
which accounts for the initials of the deputy returning officer being 
endorsed only on the back of 5359, and not on 5358; that possibly 
the voter when marking discovered the fact and returned 5358 marked 



WHAT BALLOTS SHOULD BE COUNTED. 177 

on th« face for Holmes, and it was put in the box, and the other 
paper 5359 must have been handed by him to the deputy returning 
officer, who then put it in the spoiled ballot envelope in which it 
v^as returned. In this polling division 111 persons voted, and 112 
ballot papers were returned by the deputy returning officer, including 
5358 and 5359, and Mr. . . . contends that, treating 5359 as a 
spoiled ballot, 5358 is necessary and must be counted to equal the 
number of voters. 

" In the absence of evidence, I do not find as a fact, that the 
spoiled ballot paper 5359 was in the ballot box, but from the fact 
that it bears no mark of any kind that could be said to spoil it, and 
is not mutilated, and as 5358 was undoubtedly found in the ballot 
box without the initials of the deputy returning officer, and as they 
are consecutive numbers, I infer that they must" have adhered together, 
and have been given out as one ballot, and as such went' into the 
ballot box, and were found to be two ballot papers at the close of 
the poll, which made one ballot too many, and that the deputy return- 
ing officer following s. 112, s.-s. 1, rejected 5358 as not bearing his 
initials ; and as I felt bound by the same section, I felt it my duty 
under that section to reject 5358 and to count 5359 as one of the 
ballots cast." 

On appeal, Maclennan, J.A., upheld this ruling, saying: 

" I have felt a desire, if possible to allow this ballot fairly and 
honestly marked by the voter for the candidate of his choice. 

" Even if he noticed that there were two papers, he may have 
thought that was the proper method of voting, having received them 
bdth from the deputy returning officer. He therefore complied with 
s. 103, folded them across so as to conceal the names of the candidates 
and the mark on the face of the paper, and so as to expose the initials 
of the deputy returning officer and the number on the back, and deliv- 
ered them so folded to the deputy returning officer. The folds of both 
papers correspond exactly, shewing that he- must have done all that. 

" The same s. 103 required the deputy returning officer, when the 
ballot was delivered to him, to deposit it in the ballot box, without 
unfolding it, or in any wa,y disclosing the names of the candidates, or 
the mark made by the elector. His duty is merely to verify his own 
initials and the number on the back of the paper, and he is expressly 
forbidden to unfold it, 

" I am therefore compelled to agree with the inferences of the 
learned Judge, that both papers folded together were placed in the box 
by the deputy returning officer, and that when the ballots were counted 
at the close of the poll, No, 5358, although properly marked, being 
found without initials, had to be rejected, as required by s) 112, I 
have considered whether these papers could not be treated as one 
ballot, and be allowed ; but I think I may not do that. That would be 
to condone the error of the deputy returning officer, and, to encourage 
laxity in the discharge of an important public duty. The ballot must 
be held to have been rightly rejected." 

Tom Ballot Papers. — In West Huron Election Case, 2 E. C. 58, 
the official number was torn off, but the initials of the deputy returning 
officer were on a narrow strip which had been torn off along the upper 
part from one end to the other at right angles to the division between 
the ballot and the counterfoil. Osier, J,A,, rejected the ballot, saying: 
" An integral part of the ballot having thus been removed, I am of opinipn 
that the remainder has ceased to be a ballot. Very different considerations 
would apply if merely a blank part of the ballot paper had been torn off." 

Jurisdiction of Judge on Recount. — In Re Russell, Hodgins 
619 at 521, Blake, V.C., held that the County Court Judge on a recount 
could not entertain or listen to evidence as to whether words or marks on 
ballots were made by the deputy returning officer. 

m:.a.— 12 



178 



WHAT BALLOTS SHOULD BE COUNTED. 



R«IatoT Estopped by taking seat. — See Jenkins v. Brecken, 1883, 7 
S. C. R. 247, 263, followed Regina ex rel. Watterworth v. Buchanan, 28 O. 
R. 362. 

Ballots not Initialed hy Betnmiug Officer Vriio Nevertheless 
bad Means of Identifying the Ballot Papers held Good. — See Jen- 
kins V. St. Croix Brecken, 1883, 7 S. C. R. 247. 

In Jenkins v. St. Croix Brecken, 1883, 7 S. C. R. 247, the following 
rulings were given : 



I. 



BBECKEH. 



>( 



X 



II. 



DAVIES. 



III. 



JEMIISS . 



IV. 



LAIHD. 



Ballot allowed. 



>. 



BBECKGN. 



II. 



DAVIES, 



X 



III. 



JEHKIK. 



IV. 



LAIBS. 



Krst cross allowed for Brecken ; second cross disallowed. 



I. 


BRECKEK . 


II. 


DAVIES. 


III. 


jEHKiiJs. y^ 


IV. 


LAIKD . -\ 



Allowed for Jenkins. 



WHAT BALLOTS SHOULD BE COUNTED. 



179 



I. 


BEECKEH . 


lit 


DAVIES . J/C 


III. 


JEHKIHS. c>C 


IV. 


MIED. 


Disallowed. 


I. 


BRECKEK . 


/ 


II. 


DAVIES. 


X 


III. 


JEBZIHS, 


X 


IV. 


LAISP. 





Allowed on appeal for Jenkins. 

Costs. — In the West Huron Case, 1898, 2 E. C. 5B, Osier, J.A., refused 
costs to either side, saying: 

" I do not think that any of the appeals can justly be described 
as frivolotis, and unless that were the case in a proceeding of this kind 
permitted by law in order to ascertain and determine as far as pos- 
sible the result of the election, it would be very hard measure to visit 
the unsucfeessful party in the appeals with the costs." 

And in Re Halton Election, 1902, 4 O. L. 349, he followed the same 
practice, also in Re Prince Edward Provincial Election, 1900, 4 O. L. R. 
at 257. 

Secrecy of Proceedings. 

131. — (1) Every person in attendance at a polling 
place or at the counting of the votes shall maintain and 
aid in maintaining the secrecy of the voting. 

(2) No person shall interfere or attempt to inter- 
fere with a voter when marking his ballot paper, or ob- 
tain or attempt to obtain at the polling place informa- 
tion as to how a voter is about to vote or has voted. 

(3) No person shall communicate any information 
obtained at a polling place as to how a voter at such 



180 SEOEECT OF TOTING. 

polling place is about to vote or has voted. 8 Edw. VII. 
c. 3, s. 160'; 3 & 4 Geo. V. c. 4-3, s. 131 (1-3) . 

Compare R. S. O. e. 8, s. 160. This section is apparently borrowed 
from the English Ballot Act, 35 & 36 Viet. c. 33, s. 4, as to which it was 
held in Clementson v. Mason, L. R. 10 C. P. 209, that it plainly pointed 
not only to secrecy as to the way in which an elector has voted (secrecy as 
to that is to be maintained forever), but it requires secrecy until the poll 
is closed, as to the names, not only of those who have voted, but of those 
who have not offered their vote. The intention as to these last, must be 
to prevent pressure being put upon those electors who do not wish to vote. 
The persons towards whom this secrecy should, it would seem, be most 
observed, are the candidate and his agents. This part of the section does 
not name, nor of itself include, the candidate. 

See also s. 144, which provides that : " The candidate may undertake 
the duties which his agent might undertake," but note that this is 
subject to the exception mentioned in s. 109 (1), (2), where eases of 
incapacity to mark the ballot papers are provided for : see Wentworth, 36 
S. C. R. 497. 

It should be noted that the English Ballot Act provides that ballot 
papers shall be numbered consecutively, and that the numbers of each 
voter's ballot shall be entered in the poll book opposite his name. This 
provision enables illegally cast ballots to be traced at an election proceed- 
ing, and to be deducted from the total of the candidate for whom they were 
cast. Canadian legislatures in refusing to adopt this practice have sought 
to render the secrecy of the ballot more complete. The result will be seen 
in Smith v. Baskerville, 1914, 24 M. R. 349 C. A., where the Canadian cases 
are discussed. See supra, p. 164. 

132. No person shall, directly or indirectly, induce 
or attempt to induce a voter to show his ballot paper 
after he has marked it, so as to make known to any per- 
son how he has voted. 8 Edw. VII. c. 3, s. 161 ; 3 & 4 
Geo. V. c. 43, s. 132'. 

133. Subject to section 109 a voter shall not show his 
ballot paper, when marked, to any person so as to make 
known how he voted. 8 Edw. VII. c. 3, s. 163; 3 & 4 
Geo. V. c. 43, s. 133. 

134. Every returning officer, and every officer, clerk, 
constable, agent and other person authorized to attend 
at a polling place, or at the counting of the votes, shall, 
before entering on his duties, take the oath of secrecy, 
Form 14. 8 Edw. VII. c. 3, s. 164; 3 & 4 Geo. V. c. 43, 
s. 164. 



OATH OF 8ECBE0Y. 181 



FORM 14. 

Oath of Secrecy. 

I, A. B., swear that I will not at this election disclose to any person 
the name of any person who has voted, and that I will not in any way 
unlawfully attempt to ascertain th« candidate or candidates for whom 
any elector shaU vote or has voted, and will not in any way aid in the 
unlawful discovery of the same ; and that I will keep secret all knowledge 
which may come to me of the person for whom any elector has voted. 

Sworn before me this \ A. B., 

day of 19 . i O. D., 

J. P., or as the case may be. 

Note. — When the voting is on a iy-law or question the Form is to he 
adapted to that case. 

3 Edw. VII. c. 19, Sched. I. 
3 & 4 Geo. V. c. 43, Form 14. 

The provision of the section requiring oath of secrecy, is directory only, 
and the failure of the ofScers to comply with its requirements does not in- 
validate the election: See Re Sinclair and Owen Sound, 1906, 8 O. W. R. 
460 ; 12 O. L. R. 488 ; Be Wynn and Weston, 10 O. W. R. 1115 ; 15 O. L. R., 
followed: Be Brandon Election, 1911, 17 W. L. B. 207; 20 M. R. 705; 
see also declaration. Form 17, s. 242 (4). 

135. — (1) If a 'returning officer, deputy returning 
officer or poll clerk becomes aware, or has reason to be- 
lieve or suspect, that any provision of the law as to 
secrecy has been violated, he shall forthwith communi- 
cate the particulars to the Crown Attorney. 

(2) The Crown Attorney, on receiving such inforni- 
ation from any person, shall forthwith enquire into the 
matter and, if proper, prosecute the offender. 8 Edw. 
VII. c. 3, c. 165; 3 & 4 Geo. V. c. 43, s. 315 (1-2) . 

136. No person who has Ypted at ^n election shall, in 
any legal proceeding to question the election or return, 
be required to state how or for whom, he has voted. 3 
Edw. Vn. c. 19, s. 200; 3 & 4 Geo. V. c. 43, s. 136. 

Asking Voter How He Voted.— See s. 166 Ont. El. Act, R. S. O. 
1914. c. 8, also Dom. El. Act. 

In the Haldimand Election Case, 1888, 1 E. C. at 547, the O. J. said : 
" Nothing could be made of this change without admitting evidence of votes 
to show how they voted. This, I hold, cannot be done. To dp so would 
in my opinion be a direct violation of the Act which reqAiires, secrecy . . . 
It is no answer ... to say that secrecy is imposed for the benefit of 
the voter, and that he can waive it, fur I hold secrecy to be imposed as an 
absolute rule of public policy, and that it cannot be waived." The late 



188 ELECTION OFFENCES. 

C. J. Moss in the Lincoln Election Petn., 1879, 4 A. R. 206, at 210 eaid: 
" We think that this section in furtherance of the objects of the Aot be 
construed as absolutely exclusive of such testimony." 

See also R. ex rel. Ivison v. Irwin, 1902, 4 O. L. R. 198, and ante, p. 175, 
and Smith v. Baskerville, 1914, 24 M. R. 349 C. A., and cases there cited. 

General. 

137. Every returning officer, deputy returning "offi- 
cer, or other person whose duty it is to deliver poll books 
or who has the custody of a voters' list or poll book, 
who wilfully makes any alteration or insertion in or wil- 
fully omits anything from or in any way wilfully falsi- 
fies such voters' list or poll book, shall incur a penalty 
of $2,000, and shall also be liable to imprisonment for 
any term not exceeding one year. 8 Edw. VII. c. 3, 
s. 191, amended; 3 & 4 Geo. V. c. 43, s. 137. 

138. Every person who — 

(a) Fraudulently alters, defaces or destroys a ballot 
paper or the initials of the deputy returning 
officer thereon; or 

(b) Without due authority supplies a ballot paper 
to any person; or 

(c) Fraudulently places in a ballot box a paper other 
than the ballot paper which he is authorized by 
law to place therein; or 

(d) Fraudulently delivers to the deputy returning 
officer to be placed in the ballot box any other 
paper than the ballot paper given to him by the 
deputy returning officer; or 

(e) Fraudulently takes a ballot paper out of the pol- 
ling place ; or 

^ (/) Without authority destroys, takes, opens, or 
otherwise interferes with a ballot box or book or 
packet of ballotl papers or a ballot paper or 
ballot in use or used for the purposes of an 
election; or 



ELECTION OSEENOBS. 183 

{g) Applies for a ballot paper in the name of an- 
otlier person whetlier the name be that of a 
person living or dead, or of a fictitious person, 
or having voted applies at the same election for 
a ballot paper in his own name or votes oftener 
than he is entitled to ; or 

{%) Being a deputy returning officer, contravenes 
section 124, or fraudulently puts his initials on 
the back of any paper purporting to be or cap- 
able of being used as a ballot paper at an elec- 
tion; or 

(i) With fraudulent intent, prints any ballot paper 
or what purports to be or is capable of being 
used as a ballot paper at an election; or 

ij) Being employed to print the ballot papers for 
an election, with fraudulent intent prints more 
ballot papers than he is authorized to print; or 

{h) Attempts to commit or aids, abets, counsels or 
procures the commission of any offence men- 
tioned in this section; 

if a returning officer, deputy returning officer or other 
officer engaged in the election, shall be liable to impris- 
onment for any term not exceeding two years, and, in 
the case of any other person, to imprisonment for any 
term not exceeding .six months. 8 Edw. VII. c. 3, ss. 174 
(1) and 192', amended; 3 & 4 Geo. V. c. 43, s. 138. 

Indictment for election offences. — Where a provincial legislature 
makes an act illegal and prescribes a penalty and a mode of procedure 
for exacting it, the procedure so prescribed must be followed, and indictment 
will not lie. 

If there is no penalty or mode of punishment, the case comes within 
s. 164 of the Criminal Code : R. t. Meehan, 1902, 3 O. L. R. at 572, where 
a mandamus was granted to compel a police magistrate to consider and 
deal with an application for an information where the accused was charged 
with voting in more than one ward at a. municipal election, contrary to 1 
Edw. VII. c. 26, s. 9 (o). 

Where a punishment is provided, but in a different section or sub- 
section from that which creates the offence, but no procedure is provided 
for enforcing the punishment prescribed for a violation of the provision in 
question, an indictment will lie at common law, and this procedure has 
not been superseded or repealed by the Criminal Oode. Section 164 of the 
Code does not go so far as the common law, which will be found in 'Haw- 



184 ELECTION OFFENCES. 

kin's Pl«as of the Crown, Bk. 2, c. 25, s. 4 : R, v. Buchanan, 8 Qr B. 883 ; 
R. V. Tyler and International, 1891, 2 Q. B. 588, at p. 592; H. v. Hall, 
1891, 1 Q. B. 747 ; Russell on Crimes, 7th ed., pp. 11, 12 ; Archbold's Crimi- 
nal Pleadings, 24th ed., at p. 3; Oraies' Statute Law, 2nd ed. p. 224; see 
judgment of Maclaren, J.A., R. v. Durocher, 1913, 28 O. Li. B. at 504, where 
the Court refused to prohibit a magistrate from proceeding on an informa- 
tion for having fraudulently put in a ballot box a ballot paper purporting 
to have been used by a person who did not vote at the election, contrary to 
193 (1) * of the Cons. Mun. Act of 1903. Meredith, C.J.O., based his 
concurrence on the additional ground that the act for which the appellant 
was prosecuted was prohibited by s.-s. (1) of s. 183, and the penalty, the 
provision for which it was contended excluded the remedy by indictment, 
was prescribed by a later and substantive clause, s.-s. (3). 

139. — (1) Every person who wilfully and maliciously 
destroys, injures or obliterates, or causes to be de- 
stroyed, injured or obliterated, a warrant for holding an 
election, a poll book, voters' list, certificate, afl&davit, or 
other document or paper made, prepared or drawn ac- 
cording to or for the purpose of meeting the require- 
ments of this Act or any of them, shall incur a penalty 
of $2,000, and shall also be liable to imprisonment for 
any term not exceeding one year. 

(2) Every person who aids, abets, counsels or pro- 
cures the commission of a violation of subsection 1 shall 
incur the like penalty and be subject to the like impris- 
onment. 8 Edw. VII. c. 3, s. 193, amended. 

(3) The pecuniary penalty shall be recoverable by 
action at the suit of His Majesty, and the imprisonment 
may be directed by the court in which the action is 
brought. New. 3 & 4 Geo. V. c. 43, s. 139 (1-3). 

140. — (1) Every deputy returning officer who wil- 
fully omits to put his initials on the back of a ballot 
paper in use for the purposes of an election, shall incur 
a penalty of $10 in respect of every such ballot paper. 

(2) A deputy returning officer or poll olerk who re- 
fuses or neglects to perform any of the duties imposed 
upon him by sections 115 to 123 shall, for each refusal 
or neglect, incur a penalty of $200. 8 Edw. VII. c. 3, 
s. 194, amended. 3 & 4 Geo. V. c. 43, s. 140. 

141. Every deputy returning officer or poll clerk who 
wilfully miscounts the ballots or otherwise makes up a 



EliBCTION OPE'ENOBS. 185 

false statement of the poll shall incur a penalty of $2^00. 
8 Edw. VII. c. 3, s. 195; 3 & 4 Geo. V. c. 43, s. 141. 

142. Every person who acts in contravention of sec- 
tions 131 to 133 shall be liable to imprisonment for any 
term not exceeding six months. 8 Edw. VII. c. 3, s. 198, 
amended. 

143. Every officer engaged in the election who is 
guilty of a wilfnl act or omission in contravention of 
this Act shall in addition to any other penalty or lia- 
bility to which he may be subject forfeit to any person 
who may be aggrieved thereby the sum of $400. 3 Edw. 
VII. c. 19, s. 194, amended; 3 & 4 Geo. V. c. 48, s. 143. 

Wilful. — May mean intentional, Wilson v. Manes, 1897, 28 O. R. 
419 ; or perverse or malicious, Johnson v. Allen, 1895, 26 O. R. 550 ; or 
that a man knows what he is doing, or that he intends what he is doing, or 
that he is a free agent. In re Young' & Harston's Contract, 1885, 31 C'h. D. 
168 ; Lewis v. G. Western Rw., 1877, 3 Q. B. D. 195. 

All discussed in Smith v. Carey,' 1903, 5 0. L. R. at p. 207. 

Miscellaneous Provisions. 

144. A candidate may undertake the duties which his 
agent might undertake, or he may assist his agent in the 
performance of such duties, and may be present at any 
place at which his agent is authorized to be present ; but 
no candidate shall be present at the marking of a ballot 
paper under section 109. 3 Edw. VII. c. 19, s. 201, 
amended. 3 & 4 Geo. V. c. 43, s. 144. 

145. Except where otherwise provided any oath re- 
quired to be taken in connection with an election may be 
taken before the clerk of the municipality, a returning 
officer or a deputy returning officer, as well as before any 
other person by whom under the Interpretation Act an 
oath may be administered. New. See 3 Edw. VII. c. 19, 
s. 199, last part. 

The Interpretation Act, R. S. O; 1914, c. 1, s. 23, provides as follows : 

(1) Where by an Act of this legislature or by a rule of the 
assembly, or by an order, regulation or commission made or issued by 
the Lieutenant-Governor in Council under a law authorizing him to 
require the taking of evidence under oath, an oath is authorized or dir- 



186 DESTEUCTION OF BALLOTS AFTEE ELECTION. 

ected to be made, taken or administered, the oath may be administered 
and a certificate of its having been made, taken or administered may 
be given by anyone named in the Act, rule, order, regulation or com- 
mission, or by a Judge of any Ooort, a Notary Public, Justice of the 
Peace, or Commissioner for taking affidavits, having authority or 
jurisdiction in the place where the oath is administered. 

(2) Any officer authorized to administer an oath or take an affi- 
davit may take any declaration authorized or required by an Act of 
this legislature. 

(3) Every Justice of the Peace having authority in Ontario shall 
have the same powers to take and receive affidavits and affirmations 
as a Commissioner appointed under the Commissioners for taking affi- 
davits Act. 

(4) In every case where an oath, affirmation or declaration is 
directed to be made before any persons or officer, such persons or offi- 
cer shall have full power and authority to administer the same and 
to certify to its having been made. 

146. — (1) The clerk shall retain in his possession for 
one month all the ballot papers, and, unless otherwise 
directed by an order of a Judge or ofl&cer having juris- 
diction to enquire as to the validity of the election, shall 
then destroy them in the presence of two witnesses, who 
shall make a declaration that they witnessed the destruc- 
tion of them. 

(2) The declaration shall be made before the head of 
the municipality, and filed in the office of the clerk. 3 
Edw. VII. c. 19, s. 188, amended. 

147. — (1) No person shall be allowed to inspect any 
ballot paper in the custody of the clerk except under the 
order of a Judge or an officer having jurisdiction to in- 
quire as to the validity of the election. 

(2) The order may be made on the Judge or officer 
being satisfied by affidavit or other evidence that the in- 
spection is required for the purpose of maintaining a 
prosecution for an offence in relation to ballot papers, or 
of taking proceedings for contesting the election or re- 
turn. 

(3) The order may be made subject to such conditions 
as the Judge or officer may deem proper. 3 Edw. VII. c. 
19, s. 189 (1-2), amended. 

148. Where an order is made for the production by 
the clerk of any document in his possession relating to an 



judge's ohdee foe prodtjotion of election papees. 187 

election, the production of it by him in such manner as 
may be directed by the order shall be evidence that the 
document relates to the election ; and any indorsement 
appearing on any packet of ballot papers so produced 
shall be evidence that the contents are what they are 
stated to be by the indo^isement. 3 Edw. VII. c. 19, s. 192, 
amended. 

149. "Where in this Part expressions are used, requir- 
ing or authorizing any act or thing to be done, or imply- 
ing that any act or thing is to be done in the presence of 
the agents of the candidates, they shall be deemed to 
refer to the presence of such agents of the candidates as 
are authorized to attend, and as have in fact attended, at 
the time and place where such act or thing is being done ; 
and the non-attendance of an agent at such time and 
place, if it is otherwise duly done, shall not invalidate the 
act or thing done. 3 Edw. VII. c. 19, s. 202. amended. 

Effect of Amendment Made to Old s. 204 by s. 150. — In re 

Sharp and Holland Landing, 1915, 24 O. L. K. 186, Hodgins, J.A., dis- 
cussed the effect of the amendment made to s. 204. as follows: 

" The practical difiEerence in the two enactments is seen in three 
directions. The former statutory provision applied to the taking of 
the poll ; the present one also includes ' anything preliminary thereto.' 
Then, the words ' by reason of any irregularity ' are replaced by the , 
expression ' by reason of any mistake or irregularity in the proceed- 
ings at or in relation to ' the vote. 

" The important change, however, is this. Under the previous 
clause the validity of the by-law was saved if it appeared to the 
tribunal having cognizance of the question {hat ' such non-compliance, 
mistake or irregularity did not affect the result.' This meant affirma- 
tive proof, or conviction from the proved circumstances, that the 
result was not affected. All the Judges who decided Re Hickey and 
Town of Orillia, 1908, 17 O. L. R. 317 (except Mulock, C.J., who 
expressed no opinion on the point), dwell upon the fact that the 
onus, under the provisions of the statute, was upon the respondent to 
prove two things — compliance with the principles laid down in the 
Act, and that the irregularities did not affect the result. 

" Under the present section it is sufficient to uphold the by-law that 
there is no proof that the result was affected by the non-compliance, 
mistake or irregularity. If the applicant does not prove it and it 
does not otherwise appear, then, provided the principles of the Act 
governed the conduct of the vote, the by-law stands. In other words, 
the onus upon those supporting the by-law is confined to shewing com- 
pliance with the principles laid down in the Act, while upon the 
applicant is laid the burden of shewing that the result was affected 
by the proved irregularities. 

" This seems to me to render the task of upsetting a by-law a for- 
midable one. Formerly, proof of irregularities unsettled the basis on 
which the vote rested, and the Court had to be satisfied in some way 
that the result was not affected thereby. Now, when irregularities 
are proved, the Court is not concerned with their effect, subject always 
to compliance with the principles laid down in the Act, unless and 



188 EBMEDIAL SECTION' TO CUEE IEEEGULAEITIE8. 

until it is made to appear that those irregularities did in fact affect 
the result. In my view, the legislature has at last so provided that 
the Courts will not in the future have to busy themselves annually 
in considering the mass of infinitesimal and unimportant suggested 
improprieties relied on to defeat every local option vote." 

He then proceeded to discuss the facts as follows : 

" There are 7 electors in all whose right to vote is questioned as 
being disqualified in point of residence or length of residence and 
one . . . because his description does not appear in the voters' 
list. The vote stood 63 for and 39 against, so that 5 votes have to be 
struck off those in favour of the by-law to destroy the majority. But, 
if I come to the conclusion that these 7 votes are bad, where does that 
leave the matter? I am unable to inquire how these men voted; and 
the reason underlying the rule of subtraction hitherto followed has, 
in consequence of the amendment I have mentioned, disappeared. That 
rule was to deduct them from the votes in favour of the by-law, and 
the reason was that it could not be made to appear to the Court that 
the result would not be affected : Re Leahy and Village of Lakefield, 
1906, 8 O. W. R. 743; Re Gerow and Township of Pickering, 1906, 
12 O. L. R. 545; Re Sinclair and Town of Owen Sound, 1906, 12 
O. L. R. 488 ; Re Cleary and Township of Nepean, 1907, 14 O. L. R. 
392 ; Re Ellis and Town of Renfrew, 1910, 21 O. L. R. 74. 

" Now, it must actually appear that the result was in fact affected ; 
and, if the contentions now made by the applicant are resolved in his 
favour, there still remains the question, why should they be deducted 
from those in favour of the by-law? 

" While the statute remained as it was, a reason existed, namely, 
the possibility of the majority in favour being made up of illegal votes. 
Now, while that possibility still exists, it remains a possibility only, 
and it cannot be made to appear that the result was really affected. 
I do not say that, if a class of voters is disfranchised or wrongfully 
enfranchised, the vote could be said to be conduoted according to the 
principles laid down in the Act : In re Pounder and Village of Win- 
chester, 1892, 19 A. R. 684. But, if only isolated votes here or there, 
of a class of voters properly entitled to vote, are tendered by persons 
on the- voters' list, and they are received as prescribed by the Act, 
then, although the voters are in fact unqualified, and their votes are 
subject, therefore, to scrutiny and rejection, I cannot think that the 
whole vote must be set aside as for a departure from the scheme 
laid down in the Act. 

" For this reason,, I propose to examine, following the precedent 
set by Mr. Justice Riddell in Re Ellis and Town of Renfrew, 21 O. 
li. R. 74, only three votes, leaving the others to depend on the view 
I have expressed — that, if held to be invalid, they cannot be said affirm- 
atively to have affected the result of the vote, and that the attacked 
votes, in number and circumstances, are not sufficient to satisfy me that 
the principles laid down in the Act have been departed from. 

150. No election shall be or be declared to be invalid — 

(a) For non-compliance with the provisions of this 
Act as to the taking of the poll or anything pre- 
liminary thereto, or as to the counting of the 
votes; or 

(b) By reason of niistake in the use of the prescribed 
forms; or 

(c) By reason of any mistake or irregularity in the 
proceedings at or in relation to the election; 



EBMEDIAL SECTION TO CUBE lEKEGULAEITIES. 189 

If it appears to the tribunal by which the validity of 
the election or any proceeding in relation to it is to be 
determiaed, that the election was conducted in accord- 
ance with the principles laid down in this Act, and it 
does not appear that such non-compliance, mistake or 
irregularity affected the result of the election. 3 Edw. 
VIL c. 19, s. 204, amended 3 & 4 Geo. V. c. 43, s. 150. 

The Remedial Section. — The original source of s. 150 is s. 13 of 
the Ballot Act of 1872, 35 and 36 V. c. 33 (Imp.), which is as follows:— 

" No election shall be declared invalid by reason of a non-compliance 
with the rules contained in the First Schedule to this Act, or any mis- 
take in the use of the forms in the Second Schedule to this Act, if it 
appears to the tribunal having cognizance of the question that the elec- 
tion was conducted in accordance with the principles laid down in the 
body of this Act, and that such, non-compliance or mistake did not 
affect the result of the election." 

Section 13 .with verbal changes was incorporated in s. 38 of 38 V. c. 
28 (Ont.), an Act to provide for voting by ballot at municipal elections, 
which was as follows : — 

" 38. No election shall be declared invalid by reason of a non- 
compliance with the rules contained in this Act, as to the taking of the 
poll or the counting of the votes, or by reason of any mistake in the 
use of the forms contained in the schedule to this Act, if it appear to 
the tribunal having cognizance of the question that the election was con- 
ducted in accordance with the principles laid down in this Act, and 
that such non-compliance or mistake did not affect the result of the 
election." 

The last mentioned Act provided that the elections of 1875 should 
be by the old method, and the next year by 39 V. c. 5, s. 16, it was enacted 
as follows : — 

" No election shall be declared void by reason of any irregularity 
if it appear to one tribunal havihg cognizance of the question that the 
election was conducted in substantial accordance with the intention of 
the law, and that the non-compliance or mistakes did not affect the 
result of the election." 

Sections 38 and 16 were combined and appeared in R. S'. O. 1877, c. 
174, s. 169, as follows:— 

" 169. No election shall be declared invalid by reason of a non- 
compliance with the provisions of this Act as to the taking of the poll 
or the counting of the votes, or by reason of any mistake in the use 
of the forms contained in the schedules to this Act, or by reason of 
any irregularity, if it appears to the tribunal having cognizance of the 
question that the election was conducted in accordance with the prin- 
ciples laid down in this Act, and that such non-compliance, mistake or 
irregularity did not affect the result of the election," 

The section continued in this form till by 3 and 4 Geo. V. c. 43, s. 150, 
it was altered to its present form, being successively known as : 46 V. c. 
18, s. 174; fe. S. O. 1887, e. 184, s. 175; 5(5 V. c. 42, s. 175; R. S. O. 
1897, c. 225, s. 204 ; 3 Edw. VII. c. 19, s. 204. 

The FHncipIes Laid Down in the Act. — This expression has been 
the subject of frequent comment. Anglin, J., in Ke Hickey and Orillia, 
1908, 17 O. L. R. 328: 



190 WHAT lEEEQULAEITIBS ABB CUEED. 

" The cardinal principles underlying the various provisions of the 
Act governing municipal elections appear to me to be that the electors 
shall have a fair opportunity for polling their votes and that the 
secrecy of tlie ballot shall be preserved. If a reasonable opportunity 
for voting has not been afforded, or if there has been a substantial 
disregard of the regulations prescribed to ensure the secrecy of the 
ballot, the election cannot, in my opinion, be said to have been con- 
ducted in accordance with the principles of the Act, and it is difficult 
to perceive how the respondents could satisfy the Court that the 
irregularity did not affect the result of the election." 

In the same case Riddell, J., took " principles laid down in this Act " 
to mean " the principles on which an election under the Act should be 
conducted " and he considered secrecy a great desideratum under the 
Act. In the same case it was pointed out that the Act was framed 
with great care to provide for compulsory secrecy and the amplest oppor- 
tunity for each voter to express his judgment. 

Another principle underlying the Act is that there shall be a fair, 
free and ,uninfluenced expression of the will of the electors. Part V. aims at 
securing this. 

Election cases in which the remedial section has been applied :— 

Election Upheld. — In R. ex rel. Watterworth v. Buchanan (1897), 
28 O. R. 352, the Deputy Returning Officer was absent from the poll 
several times. During one of these absences an equal number of votes 
were polled for each candidate. No voters presented themselves during 
the other absences. Rose, J., upheld the election, saying: — 

" There is no objection of bad faith. If the fact of absence for a 
few moments through illness would of itself avoid the election, a faint- 
ing fit or other uncontrollable cause might be fatal. This could not be 
so where no harm has been done. 

" Permitting the returning officer to act during the second and 
third absences was a pure mistake, and a not unnatural one. The 
' deputy might well think that his place might be supplied by the return- 
ing officer himself. The name ' deputy ' is probably misleading." 

Election Set Aside.- — In R. ex rel. St. Louis v. Reaume et al. 
(1895), 26 O. R. 460, the successful candidate participated in a trans- 
action by which some eighty names were illegally added to the list which 
was used. Only thirty-one of those whose names were added voted, and 
while .the majority of the successful candidate for reeve was sixty-six, 
Boyd, C, in setting aside the election of the guilty candidate for reeve 
and upholding the election of the councillors, said: — 

" True it is, that if you judge by the marks in the' polling books, 
only some thirty-one of those whose names were illegally added cast 
votes, yet I deprecate that arithmetical test as being the standard by 
which to judge s. 175 of the (Jonsolidated Municipal Act, 1892, 55 
V. c. 42 (O.). Having made such, changes contrary -to law, it became 
the duty of the elected candidate, who was privy to the changes, to 
demonstrate that the result of the election was not affected thereby, 
if even that peradventure would suffice to relieve from the consequence 
of this unwarrantable proceeding. But upon the present evidence no 
one can say how these names being added operated on the voting 
constituency. Even the returning officer, when questioned, cannot nega- 
tive the injurious results. This, at p. 33 : ' Q. This allowing people to 
vote must have had a material effect upon this election? A. Well, as 
far as I can see, perhaps it must have, but I don't think it would 
have much. Q. — You can't tell how much it would have? A. — No.' 

" It may be said also that the election was not conducted in ac- 
cordance with the principles of the Act, because the whole System is 
based on the finality of the voters' list ap settled and certified by the 
Judge ; but all this was disregarded by the prior addition of names 
from other sources and by the subsequent issuance of certificates to 
persons assumed to be entitled to vote, on which they were allowed 
to vote, though their names were not on the list. The Judge below 



WHAT IREEGULAEITIBS AHE CURED. 191 

has adverted to this as a grave irregularity, which has before to some 
extent been practised in this municipality, but which it is hoped will now 
not again be heard of. The other candidates for the council were 
innocent as regards the change made in the voters' lists, and their 
majorities ran from seventy-five upwards over the next candidate, and 
for this reason I agree with the result of trial before the County Judge, 
who did not disturb them in their seats, but I cannot agree that they 
should have costs against this relator, who has done right in bringing 
the violation of the law before the Court." 

Election ITplield. — In re Ottawa Municipal Election, 1895, 26 O. R. 
106, a mandamus to command a County Judge to proceed with a recount 
was refused. The Judge had stopped because on opening the ballot box 
it appeared that the ballots were not put up in separate, sealed and 
aujthenticated packages. Boyd, C, said : " The applicants cannot invoke 
tiie curing clause (s. 175), which has reference to provisions of the Act 
other than those giving the recount. . . . The proTisiou as to recount 
. . . is merely meant to give a limited supervision to the County 
Judge, but not constituting him a tribunal having cognizance of the election 
as a whole." 

Election Upheld.— In R. ex rel. Thornton v. Dewar (1895), 26 
O. R. 512, Rose, J., held that the unbending and refolding of ballot 
papers in good faith by a Deputy Returning Officer so as to exhibit his 
initial was an irregularity which in that case did not affect the result of 
the election. 

In re Brandon Election (1911), 20 M. R. 705. Cumberland, Co. Ct. 
Judge, applied the remedial section in the Manitoba Act, which is to the 
same effect as e. 204, supra, aiid upheld the election, there having been no 
wilful violation of the Act notwithstanding numerous irregularities. 

The principal irregularity was the failure of the clerk to post up 
notice of the election. The Court refused to foUow the by-law cases in 
which notice clauses have been held imperative, such as : Hatch v. Oak- 
land, 19 M. R. 692; Re Pickett and Wainfleet, 28 O. R. 464; Mace and 
Frontenac, 42 U. C. R. 70; Re Salter and Beckwith, 4 O. L. R. 51; Re 
Henderson and Mono, 9 O. W. R. 599 ; Brophy and Gananoque, 26 
U. C. C. P. 290 ; Re Johnson and Lambtoi, 40 U.-C. R. 297, and Re McCartee 
and Mulmur, 32 O. R. 69, pointing out that the giving of a notice in con- 
nection with the taking of a vote on a by-law is generally a condition 
precedent affecting the very jurisdiction of the council to take the vote, 
while the election in question was the ordinary annual election, the pur- 
pose of which is known to everybody and the date of holding which is 
fixed by Statute, and he followed a Saskatchewan case to the same effect: 
Re Jones and Stribell (1909), 10 W. L. R. 518. 

Other iregularities were that the clerk failed to furnish to deputy 
returning officers the names of the candidates, did not furnish copies of the 
sections dealing with corrupt pradtices, nor post the same in the post 
office, directions for the guidance of voters were not furnished to deputies, 
and were not posted up. The oath of secrecy was not taken by many 
deputies, poll clerks and agents. Persons were permitted to be present 
in some polling places and were even permitted to act as deputies, as in 
R. ex rel. Watterworth v. Buchanan, supra. Declarations were not taken 
from some illiterate voters and their ballots were marked in the presence 
of agents. After discussing these the learned Judge, said: — 

" Taking the election as a whole, while the formalities of the 
Statute have in many eases been omitted or departed from, the cardinal 
principle of election by baUot — the securing of a fair, free and secret 
expression of the will of the voters — ^has been, in my opinion, adhered 
to In all substantial respeots ... 

" r am satisfied on the evidence that the result of the election as 
it has been declared was the result desired by the majority of the 
voters, and that, if the provisions of the statute had been rigorously 
adhered to, the result would have been the same . . . 

" I do not for a moment wish to minimize the importance of 
complying with the provisions of the statute as closely as possible. 



192 WHAT lEEEGULAEITIES AiRE CURED. 

While, in my opinion, the election officers here should be acquitted of 
any intentional misconduct and, while the complicated character of the 
particular election and the amount of work that it entailed, and the 
unsuitable premises "where some of the polls were held, offer a rea- 
sonable explanation of a good many of the matters complained of, 
some of them were inexcusable." 

Election. Upheld. — In R. ex rel. Tolmie v. Campbell, 1902, 4 
O. L. K. 25, at an election for reeve, the successful candidate was declared 
elected by a majority of six. Many electors voted for reeve at more than 
one polling place. -Bri'ttOn, J., in holding the electiofi good, said : — 

" It is now impossible to say that the respondent has not a 
clear majority of the legal votes of the township. 

" I accept as the general principle to govern Courts, that an 
election should be Set aside if a Judge, without being able to say that 
a majority has been prevented, should "be satisfied that there was 
reasonable gtouad to believe that a majority of the electors may have 
been prevented from electing th« candidate of their choice: Woodward 
V. Sarsons (1875), L. R. 10 C. P. 733, at p. 744. 

"There is not, in my opinion, in this case reasonable ground for 
believing that the result would be different if all illegal votes could 
be struck off." 

Election Set Aside. — In R. ex rel. O'Shea v. Letherby, 1908, 16 
O. L. R. 581, the mayor and councillors failed to file declarations of quali- 
fication. The Master held that the irregularity could not be cured by s. 
204, following an unreported opinion of Meredith, C.J., in overruling the 
Master's decision in R. ex rel. Milligan v. Harrison, 1908, 11 O. W. R. 554 

Election Set Aside. — In R. ex rel. Ivison v. Irwin, 1902, 4 O. L. R. 
192, a large number of-ballots were tampered with by putting additional 
marks on the papers after -they had been placed in the box in consequence 
of a violation of duty by the Deputy Returning Officer. MacMahon, J., set 
aside the election on the ground that it was impossible to say that the 
irregularities did not affect the result. 

Election Upheld.— In R. ex rel. Warr v. Walsh (1903), 5 O. L. R. 
268, the relator sought to have the election of a mayor set aside on the 
ground that the nomination took place at 10 a.m., at the same time and 
place as the nominations of .the councillors, and not at noon. Meredith, 
C.J.C.P., held that the then Act enabled the nominations for mayor to be 
held at 10 a.m., and upheld the election, setting aside the order of the 
Master, who held that the nominations for mayor did not take place at 
the proper time, and that the remedial section (then 204), could not be 
applied. Meredith, O.J., Said that if he had found the nomination irregu- 
lar there was much to be said in favour of the view that the Master would 
have been warranted in placing a more liberal construction on the section. 

Election. Upheld. — In R. ex rel. Armstrong v. Garratt, 1907, 14 
O. I/. R. 397, the making of a declaration in November by a prospective 
candidate who expected to be away at election time,' which was later filed at 
the proper time by a friend, was held at worst to be an irregularity which 
did not affect the lesult of the election. 

Election Upheld. — In Rex ex rel. Martin v. Watson (1906), 11 
O. L. R. 336, the declaration filed by the defendant before election was 
untrue in fact; the defendatit waS not in fact qualified upon the property 
specified in his declaration ; but the municipal clerk placed the defendant's 
name on the ballot papers, and he was elected. He had other property 
. sufficient to qualify him. A motion made to unseat him, on the ground 
that his interest in the properity specified in his declaration was insufficient 
to qualify him, was dismissed by a County Court Judge, and on appeal, 
Tcetzel, J., said : — 

" The first declaration being on its face sufficient in form, and hav- 
ing in View its limited purpose, and the respondent being in fact duly 



WHAT IBEEGUIiABITIES AEE OUEED. 193 

qualified for the election, and having been elected, I think it is too 
late, after the election, to contend that the misstatemeiit regarding the 
qualifiying property mentioned in the first declaration is a ground for 
setting aside the election, which is otherwise free from objection.'' 

Election Upheld. — In Rex ex rel. Cavers v. Kelly (1906), 7 O. 
W. R. 280, 600, the declarations of the successful candidate under s. 129 
(3a), were made before a Commissioner in the High Court of Justice, 
and not before one of the persons named in s. 315. The relator con- 
tended that such declarations were mere nullities. The Master in Chambers 
upholding the election said : " Section 204 is to be liberally applied. . ." 

Election Upbeld. — In R. ex rel. Armour v. Peddle (1907), 14 O. 
L. R. 339, the clerk declared the result of the election at an unauthorized 
place. "The Master in applying, s. 204, said: — 

" Unless s. 204 can be applied here, it would be of little practical 
use. No doubt it was an irregularity to have the declaration at any 
other place than the ' town hall.' As I have said before, those hold- 
ing municipal oflices and busying themselves in these elections must 
be presumed to know the statutory requirements as to those matters ; 
and it is their plain duty to see that these are carefully and literally 
complied with." 

Election Set Aside.— In R. ex rel. Bawkes v. Letherby (1908), 17 
O. L. R. 304, a new election became necessary and the clerk did not issue 
a warrant as required by then s. 212 (now s. 156). Meredith, C.J., in 
setting aside the election said : — 

" It is contended that the curative provisions of s. 204 ought to 
save the election. I do not think so . . . 

" Here the non-compliance was not in the proceedings mentioned 
in the section or an irregularity only, but was an omission of that 
which was the very foundation for the holding of the election 
itself. .... 

" It is unfortunate that this municipality should have been sub- 
jected the second time to the inconvenience of holding an election to 
serve no practical end. No public end is to be served by these pro- 
ceedings. The only object of them must be to put to trouble those who 
have been chosen — to put them to trouble and costs — and the only 
effect of setting aside the election will be to disturb the electors." 

Election Set Aside. — In R. ex rel. Black v. Campbell, 1909, 18 
O. L. R. 269, the proper list was not used. Anglin, J., in setting aside 
the election thus dealt with the application of s. 204 : — 

" In my opinion, the list used was not the proper list, and the 
election held it cannot be supported. 

" It was argued that the use of the wrong list is merely a non- 
compliance with the provisions of the Act as to the taking of the 
poll, or an irregularity which should be held to be cured by the pro- 
visions of s. 204. In my opinion, this case does not come within s. 
204. The foundation of a contested election under the Municipal Aot 
is the voters' list. As provided by s. 165, his right to vote depends 
upon the elector's name being entered upon the voters' list. If an 
election is held upon a list which is not a voters' list, or is not the 
proper voters' list to be used, it is not, in my opinion, an election 
conducted in accordance with the principles laid down in the Act. 

" But if s. 204 did apply, it would be, I think, impossible to say 
that' it appears' to the Court 'that such non-compliance, mistake or 
irregularity did not affeot the result of the election.' It was argued 
that the applicant must shew that the irregularity did affect the 
result of the election. This would involve treating the statute as if it 
read, ' if it does not appear . . . that such non-compliance, mis- 
take or irregularity did affect the result of the election.' Although 

M.A.— 13 



194 WHAT lEREQULAfilTIES AEE CUBED. 

some of the cases appear to lend colour to this view of the provisions 
of s. 204, I can find no justification for so altering its plain language. 
The burden is upon .the applicant to establish the non-compliance, mis- 
take or irregularity ; but when that is shewn the burden rests upon the 
person upholding the election to make ' it appear . . . that such 
non-compliance, mistake or irregularity did not affect the result Of the 
election:' Re Hickey v. Town of Orillia (190S), 17 0. L. E. 317, 
330-1." 

Cases on Statutes Which do not Contain a Remedial Sec- 
tion.— Ex p. Sobinson (1876), 16 N. B. R. 389; People ex rel. Oon- 
liss V. North (1878), 72 N. Y. 124; People ex rel. Woods v. Crissey 
(1883), 91 N. Y. 617. 

Section 13 and the Ontario sections modelled on it have been said 
"merely to echo the common law." See Re Cartwright and Kapahee, 
1905, 11 O. L. E. 71. 

It has been said that this section (13), was inserted ea> abundanti 
cautela, and that the same law would be applied if the section had not 
existed : Woodward v. Sarsons, L. R. 10 O. P., at p. 751. 

In R. ex rel. Hdgan v. Jollivette (1912), 20 W. L. R. 364, Alta., 
the ordinance had no remedial section and required at least six days' 
notice of a special election, and notice had been given on the 16th for 
the 21st. Beck, J., after referring to the then Ontario s. 204, said: — 

" There is no such provision in our Ordinance . . . 

" I have considered a large number of cases with the result that 
my conclusion is this. Statutory provisions with respect to time are 
very often merely directory and not mandatory ; for instance, a pro- 
vision that an election shall be held within a certain time, where, con- 
sequently, it would be unreasonable that the office should not be filled, 
though the time limited has been allowed to pass. Again, in 'the case 
of a general election, where the day of nomination aiid the day of 
polling are fixed by statute, irregularities in or in respect of the notices 
directed by the statute may be somewhat readUy disregarded. But in the 
case of a special or casual election, where the date for nomination 
at least is necessarily brought to the knowledge of the public only by 
'the public notice directed by the statute, it seems to me that the 
statutory provision, so far at least as rela.tes to the length of such 
notice, must be treated as mandatory, though irregularities in other 
respects may be treated as merely directory : first, because that notice 
is the foundation of the election ; and, secondly, because In such a 
case, it would be scarcely possible to say that the result might not 
have been affected by a notice of less duration than that provided by the 
statute. See 15 Oyc. et seq.; Am. & Eng. Encye. df I/aw, 2nd ed.. 
Vol. 10, pp. 624, et seq. I think, therefore, the special election of the 
21st December, whereat the respondent was elected, was invalid." 

In R. ex rel. Gunder Bjorge v. Zellickson (1910), 13 W. L. R. 
433, an election of a councillor under the Local Improvement Act, Sask., 
which does not contain a remedial section, was set aside as not being an 
election under the Act. The Court applying the principles laid down in 
Woodward v. Sarsons, supra. 

APPLICATION OF THE E,EMEDIAL .SECTION TO VOTlNCJ ON 

BY-LAWS. 

Bylaw Upheld.— In re Pickett and Wainfleet, 1897, 28 O. R. 464; 
Wynn v. Weston, 1907, 15 O. L. R. 1, and Re Ellis v. Renfrew, 1910, 
21 O. L. R. 74, the clerk acted also as a Eteputy Returning Officer, and 
this was held to be only an irregularity, although indavisable aild im- 
proper. 

By-law Uiiheld.— In re Young and Binbrook, 1899, 31 O. R. 108, 
the names of eighty persons entitled to vote upon the by-'law were omit- 
ted by the clerk from the lists furnished the officers conducting the vot- 
ing, but 'this was done under a misapprehension. Street, J., in upholding 
the by-law, said : — 



KEMBDIAL SECTION APPLIED TO BY-LAWS. 195 

" I think under those circumstances we are bound to assume that 
all persons left off the list would have voted against the by-law, but 
we are not bound to go beyond this assumption or to assume that the 
error had any effect upon the minds of the persons upon the list who 
voted or abstained from voting . . . Had it been shewn that the 
result of the error had in any way affected the votes which were cast 
or that persons who would otherwise have voted, had abstained from 
doing so on account of the error, or that there was any other good 
ground for believing that the result might probably have been different, 
had the lists been properly prepared, we might have given effect to the 
objection raised. In the absence, however, of any evidence of this 
character, I do not think we should guasb the by-law upon vague sug- 
gestions that the result may have been affected." 

By-law Quashed.— In re Salter and Beckwith, 1902, 4 O. L. R. 51, 
D. C, the failure to furnish directions to voters according to schedule " 1/ " 
(now Form 22), was held fatal. Britton, J., in refusing to apply s. 
204, said: — 

" I cannot say this omission did not aff-ect the result. It per- 
haps did not. I cannot say, and ought not to be called upon to say, 
in the absence of any record by the council of what they did or 
intended to do in regard to Conducting the voting on this by-law in 
accordance with the principles laid down in the Act, how the result 
was affected." 

Bjr-law TTplield.— In re Dillon and Cardinal, 1905, 10 O. L. R. 
371, D.C., notwithstanding that no persons were appointed to attend on 
behalf of those interested, that persons were allowed to vote who were 
not entitled to, that no screened compartments were provided, that other 
persons were present in compartments and in the polling place, and were 
allowed to see how voters marked their ballots, and that, the Returning 
Officer failed to perform various duties at the close of the poll, the by-law 
was upheld by an application of s. 204, on the ground that the result of 
the voting was not affected by the irregularities. 

By-law Upheld. — In Cattwright v. Napanee, 1905, 11 O. L. R. 
71, Meredith, J., refused to apply s. 204 to cure insufficient publication, 
saying : — 

" The provisions of s. 204 of the Act made generally applicable 
to voting on by-laws by s. 351, and which seem to but echo the 
common law, see Woodward v. Sarsons, 1875, L. R. 10 C. P. 733, can 
hardly cover a substantial omission of a positive requirement of s. 
569 (5), the publication for four times only in circumstances 
,which required five, can, again, speaking generally, hardly be deemed 
unsubstantial — one of the trifles about which the law cares not." 

[Notwithstanding this substantial omission the Court refused to quash 
the by-law, and allowed it to become valid under the operation of the sec- 
tion ; as to registration for full discussion : see under ss. 282^286.] 

By-law Tlpheld.— In re Sinclair and Owen Sound, 1906, 12 O. L. R. 
4«8, CO., affirmed 13 O. L. R. 447 C. A., and 39 S. C. R. 236, the D. C. 
set aside the judgment of Maybee, J., and upheld a by-law notwithstand- 
ing numerous irregularities, namely: (a) The clerk did not prepare and 
ceritify the voters' list, furnished to the several deputies; (b) no certified 
copy of the defaulters' list was furnished; (c) the clerk did not give 
certificates to the deputies, .enabling them to vote; (d) the deputies, poll 
clerks and agents did not take the declarations ~ of secrecy; (e) the 
deputies and poll clerks did not record the names of voters in the poll 
book; (f) the deputies did not certify as to the number of persons who 
voted at their respective polls ; (g) the deputies did not make and sub- 
scribe the declaration as to the result of the poll ; (h) persons other 
than voters were allowed to enter polling compartments and to interfere 
with voters when voting; (i) the clerk did not deliver to the deputies 
directions to voters; (j) a large number of persons voted who were not 



196 EEMEDIAL SECTION APPLIED TO BT-LAWS. 

legally entitled to vote. Mulock, C.J., in giving the judgment of the D. 0., 
said : — 

" The formalities said to have not been complied with are not such 
as are required by the statute in express words to be observed as a 
condition precedeitt to the right to pass the by-law, but come within 
the curative provisions of s. 204 of the Municipal Act. 

" In the present ease there is nothing to shew, or even to sug- 
gest any intentional violation of the directions of the Act, nor is there 
any reason for believing that any disregard of the statutable formality 
called for by the Act affected the result. There is no evidence to 
shew that a single elector was prevented from recording his vote, or 
that the return was not made in strict accordance with the voting. 

"Every elector appears to have had the free and fair opportunity 
of voting for or against the by-law, and out of the total number of 
two thousand votes cast there was a majority of four hundred and 
seventy-six in its favour. It, therefore, seems to me that the elec-- 
tion was conducted in accordance with the principles laid down in 
the Act, and that the curative provision of s. 204 may be properly 
applied in respect of the matters referred to in the objections let- 
tered : (a), (b), (c), (d), (e), (f), (g), (h.), (i)." 

As to objection (j), it was pointed out that even after deducting the 
alleged illegal votes from the majority there would still remain a majority 
and this objection was also overruled. 

By-law Quashed.- — In re Rickey v. Marlborough, 1907, 14 O. L. R. 
587, D. C, the Court following Re Mace and Frontenac, 1877, 42 U. C. R. 
70, and Oartwright v. Napanee, 1905, 11 O. L. R. 69, held that non-com- 
pliance with then s. 388 (now s. 263), after publication, could not be 
treated as a mere irregularity, which might be cured under s. 204, and 
further held that this view was not inconsistent with Re Robinson and 
Beamsville, 8 O. W. R. 689, 9 O. W. R. 273. See also Re Pickett and 
Wainfleet, 1897, 20 O. R. 464 ; Re Begg and Dunwich, 1910, 21 O. L. R. 
94, in which statutory directions as to publications were held imperative. 
In re Henderson and Mono, 1907, 9 O. W. R. 599 ; also Re Bell ami Elma, 
1906, 13 O. L. R. 80, are to the same effect. 

By-law Upheld.— In re Wynn and Weston, 1907, 15 O. L. R. 1, 

failure by election oflicers to take declarations of secrecy, failure to have 
voting in one sub-division, and failure by deputies at the close of the poll 
to certify the number of voters and the presence of unauthorized persons 
at the counting of the votes were held not to affect the validity of the 
proceedings. 

By-law Upheld. — In re Duncan and Midland, 1907, 16 O. L. R. 
132, 0. A., a number of voters instead of handing their ballots to the 
deputy placed them in the ballot box themselveg. It was sought by an 
application of s. 170 (now s. 108), to have these votes disallowed. Riddell, 
J., and the D. C, said : — 

" Had the section stopped with the words ' forfeit his right to 
vote,' the argument would have had some weight ; but the remainder of 
the section shews that what was being provided against was the voter 
going away without voting or declining to vote. It never could have 
been intended that a voter who, upon the direction or with the ap- 
proval of the Deputy Returning Officer, himself in good faith placed 
the ballot in the box, instead of handing it to the Deputy Return- 
ing Officer, thereby should disenfranchise himself. Section 204 cures 
this defect." 

The failure to supply voters' lists to the deputies was excused, follow- 
ing Re Sinclair and Owen iSound, supra; also the fact that the voters' 
list for one sub-division contained more than three hundred, but not 
more than four hundred names, irregular appointments of deputies and 
poll clerks, open voting, voters going in compartments together, and the 
administration of a worthless form of oath by deputies, were held to he 
cured by s. 204. 



REMEDIAL SECTION APPLIED TO BY-LAWS. 19? 

By-law Quashed.— In re Hickey and OriUia, 1908, 17 O. L. R. 317, 

D. C, Riddell, J., thus described the question before the Court: — 

"" An election is conducted with polling sub-divisions so large, and 
with a number of voters so great, that there are — not a single voter 
alone — but 10, or 15, or 20, or 30 in the polling place at the same 
timet aiid in some cases persons other than voters also present ; the 
Deputy Returning Officer so hurried that he must initial ballots in 
advance ; the voter, instead of proceeding forthwith to the compart- 
ment, either marking his ballot where he can, on ledge or window sill, 
on engine or hose reel, and so that many might see if they wished, 
or obliged to wait until a compartment is empty, and even then in 
some instances having another come in on Mm ; sometimes ballots 
left on the counter for the t)eputy Returning Officer, who was too busy 
to receive and attend to them at the time ; sometimes ballots, for the 
same reason, placed in the ballot box by the voter — not to speak of the 
boys running in and out. All 'these are irregularities, and the sole ques- 
tion is, are they so grave that the election should be declared void?" 

The Court refused to apply s. 204, Riddell, J., saying : — ■ 

" The manner in which this election was conducted seems to me 
to be . a violation of the principles upon which an election under the 
Act should be conducted — that is, I conceive, the meaning of the odd 
expression ' the principles laid down in this Act.' " 

Anglin, J., said : — 

"The cardinal, principles underlying the various provisions of the 
Act governing municipal elections appear to me to be that the elec- 
tors shall have a fair opportunity for polling their votes, and that the 
secrecy of the ballot shall -be preserved. If a reasonable opportunity 
for voting has not been afforded, or if there has been a substantial 
disregard of the regulations prescribed to ensure the secrecy of the bal- 
lot, the election cannot, in my opinion, be' said to have been con- 
ducted iu accordance with the principles of the Act, and it is difficult 
to perceive how the respondent could satisfy the Court that the irregu- 
larity did not affect the result of the election." 

■ By-law TJpIield.— In re Prangley and Strathroy, 1910, 21 O. L. R. 
54, there was open voting in the case of illiterate persons without declara- 
tions of inability, there was no agents appointed, and proper entries were 
not made in the polls. One voter was accompanied into the polling com- 
partment by a person who saw bow the ballot was marked. Sutherland, 
J., sighted with approval the observations of Street, J., in Re Young 
and Binbrook, and Slulock, C.J., in Re Sinclair and Owen Sound, point- 
ing out that there was .no evidence to show intentional violation of the 
Act, and that the result of the poll was not in any way affected. 

By-law Upbeld. — In re Schumacher, and Chesley, 1910, 21 O. L. R. 
522, D. C, s. 204 was applied to save a by-law, notwithstanding that 
there was open voting by illiterates, that the names of persons on the voters' 
list were entered in the poll books before the day of polling, and that 
the head of the municipality did not appoint persons to attend the various 
polling places. RiddeU, J., pointed out that irregularities not affecting the 
right to vote, as in the case of the illiterates, should not be considered 
in determining the number of votes for a by-law whatever effect such 
irregularities may have at another point of view, following Re Ellis and 
Renfrew, supra. 

By-law Upheld.— In re Ryan and Alliston, 1910, 21 O. L. R. 582, 
22 O. L. R. 200, D. C, a by-law was upheld in which the last list 
certified by the Judge and transmitted by him as required was used, not- 
withstanding numerous irregularities in connection with the revision of 
the list. The applicant claimed that this was an irregularity which could 
not be cured by s. 204, citing Ex rel. Black v. Campbell, 1909, 18 
O. L. R. 269. Boyd, C, thought that the irregularities in the list which 



198 EBMEDIAL SECTION APPLIED TO BY-LAWS. 

consisted in the improper addition of two names, did not per ae vitiate 
the list, and that the error was so trifling as not to affect the result of 
the election, having regard to the votes cast. Middleton, J., thought that 
unless and until the act of the Judge had been quashed, or in some way 
annulled, it was conclusive upon all. 

By-law Upheld.— In re Ellis and Renfrew, 1910, 21 O. L. R. 74, 

Riddell, J., 2 O. W. N. 27, D. C. ; 23 O. Iv. B. 427, all Courts upheld a 
by-law and applied s. 304, The irregularities were : open voting by illiter- 
ates ; ballots exposed to the public after the closing of the polls ; 
town clerk acting as deputy in one i)oll ; no declaration of the 
result by the clerk, or at best an illegal declaration, violation of secrecy 
in the case of two voters. Garrow, J.A., thus discussed s. 204 : — 

" This section had hitherto, in cases where the general intention 
to follow the statutory provisions is apparent, been, very properly, con- 
strued liberally so as to cover all objections not fundamental or in the 
nature of statutory conditions precedent, or which have not affected 
the result ; the ld«a, no doubt, being that an honest vote should not be 
lost because of the ignorance or carelessness of those whom the law 
has appointed to receive it." 

By-law TTpheld.— In re Sturmer and Beaverton, 1911, 24 O. L. B. 
65, the by-law was upheld notwithstanding open voting by two electors. 
Failure to record two names in the poll book. 

By-law Qnasbed. — In re Quigley and Bastard, 1911, 24 O. L. B. 
622, in two polling places the compartments were not entirely screened in, 
electors remained in the polling place after voting, more than one voter 
was allowed in compartments at the same time, people were in positions 
from which they could observe the mode in which voters marked their 
ballots. BaUots were taken out of the polling place to voters who were 
unable to come into th^e booths and were marked by the voters in their 
carriages in the street, from five to thirty people, voters and non-voters, 
were allowed to be present in booths, unauthorized persons were present 
at the counting of the ballots, illiterate voters had their ballots marked 
in the presence of many persons, one married lady gave an extended ad- 
dress in the polling booth to a large number of persons there, holding her 
ballot in her hand, and speaking in favor of the by-law. While the acts 
complained of were not so - flagrant as in the case of Be Hickey and 
Orillia, 1908, 17 O. L. B. 317, Sutherland, J., held them within the scope 
of that decision, and also of Be Service and Escott, 1909, 13 O. W. N. 1215, 
and his decision was upheld by the D. C, Biddell, J., calling attention 
to the settled rule, that th* onus of supporting a by-law under s. 204 is 
upon those setting up that section, and that they must show that the 
irregularity did not affect the result of the election. 

By-law Upheld. — In re Giles and Almonte, 1910, 21 O. L. B. 362, 
D. C, the form of ballot paper used read : " For the by-law " and " Against 
the by-law." The statute provided : " Th« form . . . shall be . . 

for local option — against local option." Another by-law was voted upon 
at the same election, and it was contended that an imperative provision 
of the statute had been broken, and that mistake or confusion might have 
arisen. Britton, J., applied s. 204 ; Clute, J., applied s. 7 (35) of the 
Interpretation Act ; Middleton, J., reluctantly concurred, expressing doubt 
as to the application of s. 204. 

By-law Quashed.— In re Milne and Thorold, 1911, 25 O. L. B. 420, 
the ballot paper was : " For the by-law " and " against the by-law," in- 
stead of: "For local option" and "against local option." Sutherland, J., 
in the first instan(»e, and the D. C. on the appeal, treated the case as 
governed by Be Giles and Almonte, supra. The Court of Appeal, how- 
ever, held that the by-law ought to be quashed. Moss, C.J.O., thus dealt 
with Be Giles and Almonte : — 

" In that case the Courts seemed to consider that the onus was on 
the applicant to shew by evidence that the mistake did not mislead or 



EEMBDIAL SECTION APPLIBP TO BY-LAWS. 199 

affect the result of the election. But, where it is shewn that there was a 
~ mistake made in the use of the form, or that there was a deviation from 
the form prescribed, the rule, upon general principles, should be that it 
lies upon the party seeking to support what was done to make it appear 
that the departure was of such a nature as not to affect the substance of 
the voting or to be calculated to mislead, and did not affect the result. 

" It happened that in the Giles case there was no evidence one way 
or the other, and so 'the Courts were apparently able to see their way 
to upholding the by-law. 

" But the circumstances which appear in this case are such as to 
render it entirely different from any of the decisions upon which reliance 
is placed for supporting this by-law. 

" The applicant, accepting the view that the onus was upon him, 
adduced evidence from which it is apparent that voters were misled, and 
persons who intended to vote were unable intelligently £ind properly 
to mark their ballot papers. 

" The evidence shews that the forni of ballot paper used did lead to 
confusion and create difficulty in the minds of a number of voters as to 
the proper manper of recording tbejr vo'tes. 

" The Legislature has deemed it proper specially to provide that 
in the case of voting upon local option by-laws the ballot paper shall 
be in a form calculated to distinguish it from that to be used in vot- 
ing upon pther by-laws. Jfo doubt, the object of this provision was to 
prevent just such confusion and difficulty as has been -shewn to have 
occurred in this case. 

" In the face of the very positive provision of the statute, and in 
view of the evidence, it is beyond question that the mistake in adopt- 
ing such a widely different form to that prescribed was a substantial 
departure from the directions of the Act, and was calculated to mislead, 
and did. actually mislead." 

By-law Qiiasbe4.— In Stoddart v. Owen Sound, 1912, 27 O. L. R. 
221, an action was bi'ought for a declaration that a by-law had not been 
submitted to the vote of the electors in the manner provided by law. There 
were no screened-in Compartments, though persons could mark their ballots 
secretly if they wished to. Many persons were in the polling place, the 
voting was characterized by " flagrant, callous and wholly inexcusable dis- 
regard of the plain provisions of the statute." The irregularities were far 
more general than in Re Hickey and Orillia,~ a%ipra ; Re Qujgley and 
Bastard, supra, or Be Service and Escott, 1909, 18 O. W. R. 212. Lennox, 
J., refused to apply s. 204. 

Section 204 above mentioned was as follows : 

" No election shall be declared invalid by reason of a non-com- 
pliance with the provisions of this Act as to the taking of the poll or 
the counting of the votes, or by reason of any mistake in the use 
of the forms contained in the schedules to this Act, or by reason of 
any irregularity, if it appears to the tribunal having cognisance 
of the question that the election was conducted in accordance with 
the principles laid dowii in this Act, and that such non-compliance, 
mistake or irregularity did not affect the result of the election." 

151, The reasonable expenses incurred by a clerk or 
any other officer for printing, providing ballot boxes, 
ballot papers, materials for marking ballot papers, and 
balloting compartments, and for the transmission of 
packets, and reasonable fees and allowances for services 
rendered under this Part, shall be paid to the clerk by 
the treasurer, and shall be paid by the clerk to the per- 



200 • VA0ANCIB8 IN COUNCIL. 

sons entitled thereto. 3 Edw. VII. c. IS, s. 206;- 6 Edw. 
VII. c. 35, s. 24, amended. 

Vacancies in Council. 

152. The seat of a member of a council shall become 
vacant if he — 

(o) Is undergoing imprisonment under sentence for a 
criminal offence ; or 

', (&) Becomes insolvent, within the meaning of any In- 
solvent Act in force in Ontario ; or 

(c) Is in close custody under the Fraudulent Debtors 
Ari:est Act or is disehairged from close custody 
under s. 53 of that Act; or 

(d) Assigns his property for the benefit of his credi- 
tors ; or 

(e) Absents himself from the meetings of the council 
for three successive months without being auth- 
orized so to do by a resolution of the council 
entered upon its minutes ; 

and the council shall forthwith declare the seat to be 
vacant. 3 Edw. VII. c. 19, s. 207, amended. 

Assigns, etc. — This evidently means a general assignment for the 
benefit of creditors such as is referred to in the Assignments and Prefer- 
ences Act,. B. S. O. 1913, e. 134, s. 6. Such an assignment is to be dis- 
tinguished from a deed of trust by which property is conveyed for the 
benefit of creditors which does not of itself create a trust for any of the 
creditors and which constitutes a mere revokable mandate : Johns v. James, 
1878, 8 Ch. D. 744, 47 L. J. Ch. 853. The council would do well to wait 
until notice of such assignment appears in the Ontario Gazette under the 
provisions of s. 7 of the Assignments and Preferences Act, supra. 

A councillor apparently can transfer or assign the property in respect 
of which he was qualified to be elected after he takes the declaration 
required by s. 242 without becoming disqualified. Eiddell, J., based his 
judgment to this effect in R. ex rel. Morton v. Roberts, 1912, 26 O. L. K. 
263, in part on the provisions of s. 152, after pointing out that the pro- 
perty qualification is one entitling a person " to be elected :" see s. 52, and 
that certain disqualifications render a person ineligible " to be elected " or 
to sit or to vote in council: s. 53. He added: 

" The difEerence in the terminology affords a very cogent argu- 
ment against the view that the Legislature intended the sale of the 
qualifying property to operate as an act ipso facto disqualifying the 
member, at all events after proper declaration, of qualification made- 
had that been the intention, it is difficult to see why the provision 
that an assignment for the benefit of his creditors Is made specifically 



VACANCIES IN COUNCIL. 301 

a ground of disqualification, without the addition ' a sale or assign- 
ment of qualifying property,' " 

Becomes Insolvent. ^ In Warnock v. Kleopfer, 1887, 14 O. R. 288, 
15 A. R. 324, 18 S. 0, R. 701, the defihitJion of insolvency given by Boyd, 
C, was adopted : 

" A man may be deemed insolvent in the sense of the Act if he 
does not pay his way, and is unable to meet the current demands of 
creditors, and if he has not the means of paying them in" full out of 
his assets realized upon a sale for cash or its equivalent." 

Killam, J., in Bertrand v. Canadian Rubber Co., 1897, 12 M. R. 27, 
said of this definition: 

" I would, however, qualify the latter test a little to meet the 
case of a man whose liabilities are not wholly matured and who can 
sell on terms which will enable him to pay those which have matured 
and others as they mature. Such a man I would not deem to be in 
insolvent circumstances within the meaning of the statute. What is 
termed ' commercial' insolvency,' the inahility of a trader to' pay his 
liabilities in cash as they mature, would not seem to be an absolute 
test, though it might afEord evidence of his being in insolvent circum- 
stances." 

See also Hart v. Allen, 1902, 40 N. S. R; 352. 

Shall Become Vacant . . . and the Council shall Declare 
the Seat to he Vacant. — Section 39 of the Municipal Corporations Act, 
1882, 45 and 46 V., c. 50 (Imp.), provides that: (1) If the mayor or an 
alderman or councillor (o) is declared bankrupt, or (6) is, except in case 
of illness, continuously absent from the borough . . . for more than 
six months, he shall thereupon immediately become disqualified and shall 
cease to hold office ; (2) In any such event the council shall forthwith 
declare the. office to be vacant, and signify the same by notice signed by 
three membeTS of the council . . . and fixed on the town hall, and the 
office shall thereupon become vacant. 

Under this section and a similar provision found in s. 46 of the Local 
Government Act, infra, the seal does not become vacant untU'the notice 
has been posted : Hardwick v. Brown, [1873] L. R. 8 C. P. 40a 

Apparently in case of absence the council ought to give the member a 
chance to explain: Richardson v. Methley, [1893] 3 Ch. 510, 62 L. J. Oh. 
943, where an . injunction was granted restraining the Board from declaring 
the seat vacant, and see B. v. Hunton, 9 L. J. B. 751, decided under s. 46, 
the Local Government Aot, 1894, 55 and 56 V., c. 73 (Imp.) 

The time begins to run from the first meeting from which the member 
is absent: Kershaw v. Shoreditch, 1906, 22 T. L. R. 302, where a council 
was restrained by injunction from declaring a seat vacant. ' If the council 
refused to make the declaration, under, s. 39, supra, a mandamus could be 
obtained. 

Under a provision by which school trustees upon the happening of 
certain events ipso facto, vacated their seats, and requiring the remaining 
trustees to declare the seat vacant and forthwith order a new election, the 
Q. B. D. held that the seats did not actually become vacant until the 
declaration was made : Chaplin v. Woodstock, 1889, 16 O. R. 728. 

It is submitted that, under s. 152, a seat does not become vacant until 
the council so declares; that such a declaration should be by by-law; that 
the council on a proper case may be compelled to make the necessary 
declaration, and if threatening wrongfully to make a declaration may be 
restrained by injunction, and further, having reference to s. 153, that 
proceedings under Part IV. cannot be taken to have the seat declared 
vacant by reason of any of the grounds mentioned in s. 152. 

In Mearns v. Petrolia, 1880, 28 Gr. QS, it was held tha.t the time o£ 
absence was to be computed from the date of the first meeting from which 
the member is absent, and -the Court granted an injunction to restrain the 
other members of the council from excluding members who had not in fact 
been absent for the period mentioned in the section. 



302 HESIGNATION OF MBMBEBS OF COUNCIL. 

In Calloway v. Pearson, 1890, 6 M. B. 364, Bain, J., thought that 
before Mearns v. Petrolia could be followed, the plaintiff's right to a 
mandamus would have to be made clear beyond question and he refused 
a mandamus where a member had been unseated by a County Court Judge 
on the trial of an election petition, the respondent claiming that the County 
Court Judge had acted without jurisdiction where, in fact, the respondent 
was disqualified. 

153. Except in the cases provided for by s, 152, if a 
member of a council forfeits his seat or his right to it or 
becomes disqualified to hold it and does not forthwith 
resign his seat, proceedings may be taken under ss. 160 
to 179 to declare it vacant. 3 Edw. VII. e. 19, s. 208, 
amended. 3 & 4 Geo. V. c. 43, s. 113. 

[Sec. 209 repealed by 6 Edw, VII. c. 35, s. 34.] 

154. A member of a council, with the consent of the 
majority of the members present at a meeting, entered 
upon the.niinutes of it, may resign his office and his seat 
in the council. 3 Edw. VII. c. 19, s. 10, amended. 3 & 4 
Geo. V. c. 43, s. 154. 

See notes following, ». 156. 

155. — (1) The warden of a county may resign his of- 
fice either by verbal intimation to the county council when 
in session or by letter to the clerk when the council is not 
in session. 

(2) Where from any cause a vacancy occurs in the 
office of warden when the council is not in session, the 
clerk shall forthwith notify the members of the vacancy, 
and if required in writing, so to do by a majority of them, 
he shall call a special meeting of the council to fill the 
vacancy. 3 Edw. VII. c. 19, s. 211, amended. 3 & 4 Geo. 
V. c. 43, s. 155 (1-2). 

See notes following, s. 156. 

156. — (1) Subject to ss. 157 and 158, a new election 
shall be forthwith held where— r 

(a) A person elected has neglected or refused to 
accept office or to make the prescribed declara- 
tions within the prescribed time ; or 



NEW ELECTION ON VACANCY OOCUEEING. 303 

(&) A vacancy, except in the office of controller, 
occurs from any cause. 

(2) Where a new election is to be held the head of the 
council, or if he is absent or unable to act or there is a 
vacancy in the office, the clerk, or if they are both absent 
or unable to act or both offices are vacant, one of the mem- 
bers of the council shall forthwith issue a warrant under 
his hand for the holding of the new election. 

(3) The returning officer and the deputy returning of- 
ficers appointed to hold the next preceding election shall 
be the returning officer and the deputy returning officers 
to hold the new election, and the nomination shall be held 
and the polling shall take place at the respective places at 
which the nomination was held and the polling took place 
at such last election, unless the council appoints other 
persons to hold the election and other places at which 
the nomination shall be held and the polling take place, 
which the council may do. 3 Edw. VII. c. 19, s. 212, 
amended. 3 & 4 Geo. V. c. 43, s. 156 (1-3). 

Section 36 of the Municipal Corporations Act, 1882, 45 and 46 V., 
c. 50, provides: 

(1) A person elected to a corporate office may at any time, by writ- 
ing signed by him and delivered to the town clerk, resign the 

' office, on payment of the fine provided for non-acceptance thereof. 

(2) In any such case the council shall forthwith declare the office to 
be vacant, and signify the same by notice in writing, signed by 
three members of the council and countersigned by the town clerk, 
and fixed on the town hall, and the office shall thereupon become 
vacant. 

Under this section, in B. v. Wigan, 1885, 14 Q. B, D. 908 ; 54 L. J. Q. 
B. 338, a member forwarded his resignation and the amount of the fine, but 
the council requested him to withdraw it, which he did. It was held that, 
under s. 36, the resignation could not be withdrawn, and a rule nisi for 
mandamus to compel the council to accept it was obtained. 

In Pease v. Lowden, [1899], 1 Q. B. 386, 68 L. .1. Q. B. 239, also 
decided upon s. 36, it was held that, after tender of resignation and pay- 
ment of fine, the resigning alderman could not vote though the seat did not 
become vacant till the council made the declaration. 

In Re Vandyke and Grimsby, 1906, 12 O. L. R. 211, a motion to- 
quash ^a by-law was based upon the objection (among others) that the 
by-law was signed on tEe 3rd February by the reeve who had, on the 2ncJ 
February, gone through the form of resigning his position as reeve : 
Teetzel, J., overruling this objection, . said : 

" His resignation, however, in my opinion was not effective to 
disqualify him from signing the by-law, inasmuch as there was not a 
compliance with s. 210 of the Municipal Act, which provides for 
resignation with the consent of the majoi-ity of the members of the 
council present, to be entered upon the minutes of the council. This 
not being done, the resignation was not effective. See Chaplin v. Wood- 
stock, 1889, 16 O. R. 728; Hardwick v. Brown, 1873, L. B. 8 C. P. 
406." 



204 CONSENT OF MAJOEITT OF COUNCIL TO EESIGNATIONS. 

If a person who is in fact disqualified 'to be elected, is declared elected 
and takes his seat, he cannot, strictly speaking, resign the seat as he never 
held it: Hardwick v. Brown, 1873, L. K. 8 C. P. 406, but this refinement 
is ignored by the Act which provides for a disclaimer in such a case, 
ss. 181 and 182, and further provides that ^uoh disclaimer shall operate 
as a resignation : s. 184. See notes to ^. 184. 

Vacancy in Office of Controller. — This is to be filled by the 
council, at a meeting to be called for the purpose: s. 212 (2). 

Whole Council Unseated. — See notes to s. 175. 

A Majority of.tHe Full Number of the Council — This is- the 
quorum provided by s. 200 (1). The fact of vacancies existing does riot 
even in the absence of such a provision as is found in s.-s. 7 render meet- 
ings of the existing members illegal, if a quorum is present : See s. 200. 
If any of the persons present are disqualified and nevertheless vote on 
by-laws or resolutions, such may be quashed if carried by the votes of the 
disqualified persons, or if there is not a quorum of qualified members the 
whole proceedings may be set aside. 

In R.,ex rel. Hogan v. JoUivette, 1912, 20 W. L. R. 364, 1 W. W. R. 
829 (Alberta), P., a member of the council whose term had expired at the 
end of 1911 had been declared elected for the years 1912-13, and before the 
term for 1911 was ended he handed in his resignation as councillor for the 
remainder of the year 1911 and for the year 1912-13, and at the same meet- 
ing was appointed secretary-treasurer of the town. Section 106 of the Muni- 
cipal Ordinance (Consolidated Ordinances), 1898, s. 70, provided as follows: 

" In case of the resignation, death or removal of any member of 
a council, or in the event of a vacancy occurring in the council from 
any cause whatsoever, the council at its next meeting shall order an 
election and the member so elected shall hold oflice for the unexpired 
period of the member whose place he was elected to SO.." 

Beck, J., said : " Acceptance by the council is possibly necessary to 
make resignation effective , . . there being, as I have said, a right under 
the Ordinance to resign, I cannot see any reasonable ground for the con- 
tention that resignation can be made only after the member elect has taken 
full possession of the oflice in pursuance of his right. He can equally well, 
I think, resign his right to the oflice before the time has arrived at which 
actual possession is possible. I think, therefore, that P.'s resignation was 
effective ; and that, therefore, the council rightly proceeded to a new elec- 
tion, in pursuance of s. 106." 

R. ex rel. Bawkes v. Letherby, 1908, 17 O. L. R. 304, was decided 
upon ss. 212 and 214 above mentioned. The clerk did not issue a warrant 
for the holding of the new election, and the proclamation which he made 
did not fix the nomination within 15 days. The mayor and six councillors 
were accordingly unseated on the ground as stated by Meredith, C.J. ; 

"... the only authority for anybody assuming to put in 
motion the proceedings for electing those who are to govern the munici- 
pality is to be found in the Municipal Act. 

" The general election, which takes place in December, when 
nominations are held in most municipalities, • at- aU events, is pro- 
vided for by statute, 

" In the case of subsequent vacancies, provision is similarly made 
by statute that the electors shall be brought together for the election 
. of their representative by the issue of a warrant. That is the only 
authority for anybody to hold the election under s. 212 ; and I think, 
therefore, that the Master was right in holding that, if there was no 
warrant issued, all that took place was a mere nullity, and there was 
no election. 

. " I should have been glad if I could have come to the conclusion 
that the proclamation which was issued by the town clerk, as return- 
ing oflicer, answered the requirements of a warrant. There is no 
magic in the term ' warrant.' No particular form is given, and any 



TIME EOE NEW ELECTION. 305 

direction or any document signed as the statute requires, which con- 
tains what is required is a warrant in substantially the terms of the 
statute, would be a warrant, in my judgment, quite sufficient to 
answer all the requirements of the statute ; but in this case there is no 
direction to the deputy returning officers — nothing but a notice that 
on a particular day a meeting of the electors will be held to nominate 
a mayor and six councillors, and that, if a poll is -demanded, voting 
will take place on a named day at places that are designated ; and then 
a further statement of who the deputy returning officers and poll 
clerks are to be; 

" There is nothing in this document which, in terms or by implica- 
tion,' requires the gentlemen whose names are given as deputy return- 
ing officers to hold the poll; and it seems to me that the document does 
not contain all that is necessary to constitute what the statute speaks 
of as a warrant for holding the election. 

" It is contended that the curative provisions of s. 204 ought to 
save the election. I do. not think so. . . . 

" . . . here the non-compliance was not in the proceedings 
mentioned in the section or an irregularity only, but was an omission 
of that which was the very foundation for the holding of the election 
itself. 

"I do not think that there is anything in the objection that the 
day named for the holding of the election was not within the time 
fixed by the statute. • That provision is, in my opinion, merely direc- 
tory, and an election held at a later date would not be invalidated by 
the failure to observe this direction. If it were not so, the result 
would be that the failure o'f the returning officer to discharge his duty 
would absolutely prevent the holding of an election and the filling of 
the vacancy it was required to fill, and that is the strongest reason for 
coming to the conclusion that the provisions of the section are 
directory." 

Where the town clerk is by the Act the returning officer, he must issue 
a warrant to himself: See K. ex rel. Bawkes v. Letherby, supra. 

(4) Where a new election becomes necessary before 
the first meeting of the council in the year for which it is 
elected the duties which by s.-s. 2 are to be performed by 
the head, clerk, or. a member of the council shall be per- 
formed by the head, clerk, or a member of the council of 
the next preceding year. 3 Edw. VII. c. 19, s. 213, 
amended. 

(5) The new election shall be held at the latest within 
fifteen days after the receipt of the warrant by the person 
to whom it is directed, and the person issuing the warrant 
shall appoint a time for the nomination of candidates and 
for the polling if a poll is required, and the election shall 
be conducted in like manner as an annual election. 3 Edw. 
VII. c. 19, s. 214, amended. 

(6) The person elected shall hold office for the residue 
of the terms for which the person whose place he is 
elected to fill was elected. 3 Edw. VII. c. 19, s. 215. 

(7) Notwithstanding that a new election becomes 
necessary meetings of the council may be held if a ma- 



306 FILLING TAOANOIES WITHOUT ELECTION. 

jority of the full number of the council is present. 3 Edw. 
VII. c. 19, s. 213, last part amended. 3 & 4 Geo. V. c. 43, 
s. 156 (4-7). 

157. — (1) Where a vacancy occurs in the office of 
alderman in a city where aldermen are elected by general 
vote, the unsuccessful candidate who received the highest 
number of votes at the next preceding election shall be 
entitled to the office upon making the prescribed declara- 
tions within the prescribed time, and if he fails to do so 
or disclaims the office one of the candidates following in 
regular order according to the number of votes received 
shall, as hereinafter provided, become entitled to the 
office on making such declarations within the prescribed 
time. 

(2) Where the number of votes cast for two or more 
of such candidates is equal, their order of succession shall 
be determined by the amounts for which they are respec- 
tively rated upon the last revised assessment roll, the 
candidate having the largest assessment having the 
priority. 

(3) The clerk shall immediately after the vacancy oc- 
curs give notice in writing to the candidate who is first in 
succession that he is entitled to such vacant office if he 
makes the prescribed declarations within one week after 
the giving of the notice, and that if he fails to make the 
declarations within that time he shall be deemed to have 
disclaimed the office. 

(4) If a candidate fails to make the prescribed declar- 
ations within the prescribed time, or disclaims the office, , 
the clerk shall forthwith give notice in writing to the 
candidate next in succession in the same terms as the 
notice to the first candidate, until the vacant office has 
been filled or the list of candidates entitled to take it is 
exhausted. 

(5) The notice may be served personally or may be 
sent by registered letter addressed to the candidate, aixd 
a record of the service or of the mailing and of the ad- 
dress shall be preserved by the clerk. 



FILLING VACANCIES WITHOUT ELECTION. 207 

(6) If all the aldermen were elected by acclamation, 
or if no candidate takes the vacant office under the pre- 
ceding provisions of this section, the council shall forth- 
with elect a person to fill the vacancy for the remainder 
of the term of the member whose seat has become vacant. 
3 Edw. VII. c. 19, s. 215, amended. 3 & 4 Geo. V. c. 43, 
s. 157 (1-6). 

158. — (1) Where the office of mayor of a city becomes 
vacant after the first day of July in any year and an elec- 
tion to fill the vacancy has not been ordered in a judicial 
proceeding, the council shall elect one of their number to 
fill the office for the remainder of the term. 

(2) Where the office of mayor, reeve or deputy reeve 
of a town or of reeve or deputy reeve of a village or 
township becomes vacant after the first day of Novem- 
ber in any year, and an election to fill the vacancy has not 
been ordered in a judicial proceeding, the council may 
elect one of its number to fill the office for the remainder 
of the term. 

(3) Where a vacancy occurs in the office of alderman 
where aldermen are not elected by general vote or of 
councillor after the first day of November in any year 
and an election has not been ordered in a judicial pro- 
ceeding it shall not be necessary that the vacancy be 
filled if the council so directs. 3 Edw. VII, c. 19, s. 216, 
amended. 3 & 4 Greo. V. c. 43, s. 158. 

159. Where the electors do not elect the requisite num- 
ber of members, the members elected if they equal at 
least one-half of the council when complete or a majority 
of them or if half of such members were not elected the 
members for the next preceding year or a majority of 
them shall elect as many qualified persons as are neces- 
sary to constitute or complete the requisite number of 
members. 3 Edw. VII. c. 19, s. 218, amended. 3 & 4 Geo. 
V. c. 43, s. 159. 

This must refer to a case where there are no nominations or where all 
persons nominated resign: See s. 70, "Where elected members do not 
exceed one-half." 



208 PROCEEDINGS TO DECLAEE SEAT VACANT. 



PART IV. 

Proceedings TO Declaee Seat Vacant. 

Procedure. 
160. In this Part,— 

(a) "Judge" unless the Court is referred to by name 
shall include a Judge of the High Court and a 
Judge of a County or District Court ; 

(b) "Master in Chambers" shall include any officer 
having jurisdiction to sit and act for the Master 
in Chambers. TSlew. 3 & 4 Geo. V. c. 43, s. 160: 

161. — (1) The validity of the election of a member of 
a council or his right to hold his seat, or the right of a 
local municipality to a deputy reeve, may be tried and 
determined by a Judge of the High Court, by the Master 
in Chambers, or by a Judge of the County or District 
Court of the county or district in which the municipality 
is situate. 

(2) Where the right of a municipality to a deputy 
reeve is contested any municipal elector in the county or 
where the validity of the election is contested, any candi- 
date at the election or an elector who gave or tendered 
his vote at it, or where the election was by acclamation, 
or the right to sit is contested on the ground that the 
member has become disqualified or has forfeited his 
seat since his election, an elector entitled to vote at the 
election may be the relator. 3 Edw. VII. c. 19, s. 219 
(1-2), redrafted. 3 & 4 Geo. V. c. 43, s. 161 (1-2) ; 4 Geo. 
V. c. 53, s. 5. 

[Note.S. 219 (5) now s. 179.] 

Proceedings Civil, not Criminal. — Proceedings under this Part are 
civil _ proceedings. An information in the nature of a quo warranto is 
criminal in its nature. The proceedings under the Act being civil pro- 
ceedings, " cannot be regulated by analogy to criminal proceedings, iior do 



FOEMBE PKOOEDUEE BY QUO WAEEANTO. 309 

the special provisions found in the statute of Anne and the English Crown 
Office prfietice rules afford any guide; in fact, the absence of these provi- 
sions indicates the absence of the special powers they confer :" Middle- 
ton, J. : R. ex rel. Warner v. Skelton, 1911, 23 O. L. R. 182. 

Statute Must be Strictly and liiterally Followed.; — " The pro- 
ceedings authorized by the Municipal Act to contest the validity of elec- 
tions to municipal offices are statutory, and, as is the case with all purely 
statutory proceedings, the statute must be strictly and literally followed. 
There is no inherent jurisdiction, and considerations of convenience and 
analogy find no place in the discussion :" Middleton, J., R. ex rel. Warner 
V. Skelton, supra. 

The Former Procedure. — ^The following account of the former pro- 
cedure was given by Riddell, J., in R. ex rel. Morton v. Roberts, 191, 26 
O. L. R. at 271. 

" The common law writ of quo warranto — sometimes called quo jure — 
was used by the King to call upon any subject who exercised office or 
franchise, to shew by what authority the office or franchise was enjoyed — 
it might also be used by the King to call upon any one who held land to 
shew by what title or warrant he held. The right to such a writ rested, 
of course, upon the principles that the King has the sole power of bestow- 
ing offices and franchises, and he is lord paramount of all land within the 
kingdom. The writ,* which was an original writ out of Chancery, fell into 
disuse early, probably in the time of Richard II. (Coke, 2 Inst. 498, etc.), 
and an information in the nature of a quo warranto took its place. This 
was much abused in Stuart times, but has survived and still may be put in 
action in a proper case — it lies against persons who claim any olllce, 
franchise, or privilege of a public nature, and not merely ministerial and 
held at the will and pleasure of others: Darley v. The Queen (18-15), 12 
CI. & F. 520. 

As it was held at the common law, the King alone could have such an 
information against those usurping offices, etc., in municipal corporations, 
the statute 9 Anne c. 20 was passed, providing for the issue of such in- 
formations at the instance of private prosecutors in such cases — and this 
statute became part of our law by the Provincial Act, 32 Geo. III., c. 1. 

Both in England and in Upper Canada, the practice in such cases 
has been simplified ; the statutory provisions are, in cases covered by the 
statutes, now taken advantage of — but, if there be any casus omissus, the 
information under the statute of Anne may be still appealed to. In our 
own Courts the most recent case I know of is Regina ex rel. Moore v. 
Nagle, 1894, 24 O. R. 507; Askew v. Manning (1876), 38 U. C. R. 345, is 
another. 

By the Act of 12 Vict. c. 81, s. 146, it was provided " that at the 
instance of any relator having an interest as a candidate or voter in any 
election ... a writ of summons in the nature of a quo warranto shall 
lie to try the validity of such election, which writ shall issue out of His 
Majesty's Court of Queen's Bench . . . upon such relator shewing 
upon affidavit . . . reasonable grounds for supposing that such election 
was not conducted according to law, or that the party elected or returned 
thereat was not duly or legally elected or returned." The informant, the 
writ of summons was read instead of the information in the nature of a 
quo warranto in cases to which it was applicable. 

When the case of R. ex rel. Grayson v. Bell, 1 U. C. L. J. N. S. 130 
was decided (1865), the statute in force was C. S. U. C. 1859, c. 54. . . . 
The only matters which could be thus contested were, (s. 127), "the right 
of any municipality to a reeve or deputy reeve, or . . . the validity of 
the election or appointment of a mayor, warden, reeve, deputy reeve, alder- 
man, councilman, councillor or police trustee." It is in view of the pro- 
visions of the existing statute that Hagarty, J., says : "As Bell was properly 
qualified, and nothing is alleged against the manner of his election, I do 
not see Bow I can interfere by quo warranto, because an apparent mistake 
has been made in the description of the nature of an estate in 
property. . . ." 

M.A. — 14 



310 PRINCIPLES OF OLD LAW STILL APPLICABLE. 

In 1870 when E. ex rel. Halsted v. Ferris, 6 D. C. L. J. N. S. 266 
was decided, the Act in force was, 1866, 29 and 30 Vict. c. 51. 

The statute, 36 V., c. 48, ss. 131, 132, was the same and also E. S. 0. 
1877, c. 174, ss. 179, 180, which last contained the statutory enactments 
when the two cases of E. ex rel. Clavey v. St. Jean and E. ex rel. Clavey v. 
Conway, 46 U. C. E. 77, 85 came on. And it was due to the limited class 
of cases for the application of the statutory procedure that in these cases 
an inforipation, and not a writ of summons in the nature of a quo warranto 
was applied for. 

In 1892, by s. 18S of the Statute 55 V., c. 42, a notice of motion in 
the nature of a quo warranto was substituted for a writ of summons, and 
this practice has continued to the present time ; the statute 60 V., c. 15, 
schedule c. (44) , struck out in the beginning all reference to the right of a 
municipality to a reeve or deputy reeve ; and 3 Edw. VII. c. 18, s. 32 made 
a most important change : — " In case the validity of the election or the 
appointment or right to hold the seat of a mayor, warden, reeve, alderman, 
county councillor or councillor is contested, etc." Before that time it was 
only the validity of the election which could be challenged in the statutory 
method — thereafter the right to hold a seat could be attacked in the same 
way. . . . The Consolidation of 1903, 3 Edw. VII. c. 19, s. 219, fol- 
lowed, and that Act has been slightly amended by 6 Edw. VII. c. 35, s. 26, 
and 9 Edw. VII. c. 73, s. 5 (1)." These provisions are now embodied in 
s. 161. 

Principles of the old laiv applicable to proceedings under 
Part IV. — Under a provision similar to s. 52 (7) which stated that if at 
the time of election there were not at least two persons qualified to be 
elected for each seat in the council no qualification beyond that of a muni- 
cipal elector should be necessary the clerk stated at the nomination meeting 
that there were not two persons qualified for each office and accordingly 
persons possessing the qualifications of electors but not the other qualifica- 
tions were nominated for the vacancies and an election was held. The 
relator was present and concurred in the statement and was nominated 
but was subsequently defeated at the election. He then brought proceedings 
under the Municipal Act to set the election aside claiming that as a fact 
there were in the village at least two persons qualified to be elected for 
each seat. Harrison, C.J., dismissed the relator's summons with costs : 
Eeg. ex rel. Eegis v. Ousac et al, (1876) 6 X. E. 303, stating as follows:— 

" The summary mode prescribed by the Municipal Institutions Act for 
the trial of municipal elections is a substitute for the arduous and expensive 
proceeding by quo warranto information : E. ex rel. White v. Eoach, 18 
U. C. Q. B. 226, and the general practice is to confine parties as much as 
possible to relief under the statute: lu re Kelly and Macarow, 14 C. P. 
457. But in dealing with cases which arise under the statute, the principles 
of the old law as to the competency of the relator are still applicable, and, 
so far as applicable, ought to be followed : E. ex rel. Loyall v. Ponton, 2 
Prac. E. 18; E. ex rel. Eosebush v. Parker, 2 C. P. 15; In re Kelly and 
Macarow, 14 C. P; 457 ; E. ex rel. Grayson v. Bell, 1 C. L. J. N. S. 130. 

In Cole on Informations, p. 174, it is said "A burgess or other person 
having sufiicient interest to be a relator in a quo warranto information, may 
nevertheless have so acted as to render himself disqualified to be such rela- 
tor, and on that ground the Court will refuse an information at his in- 
stance, although a valid objection to the defendant's title be shown. 

A party ought not to be permitted to play ' fast and loose ' in these 
matters just to suit his own particular interest: per Taunton, J., in The 
King V. Parkyn, 1 B. & Ad. 694. The principle is, that a man shall not 
apply to the Court as relator if he has concurred in the irregularity of 
which he complains: per Coleridge, J., in E. v. Green, 2 Q. B. 405. It is 
very much like the case where an arbitrator has done something wrong^ but 
both parties although knowing of it, nevertheless proceed, and neither can 
afterwards take advantage of the objection : per Blackburn, J., in R. v. 
House, L. E. 1 Q. B. 440. 

A person who, at the time of an election, is aware of some irregularity, 
but lies by and consents to the election as if regular, will not afterwards be 
heard as relator to question its regularity : King v. Stacey, L. T. E. 1. 



PEINOIPLES OF OLD LAW STILL APPLICABLE. 211 

The Courts have on several occasions said, and said wisely, that they 
will not listen to a corporator who has acquiesced or perhaps concurred in 
the very act which he afterwards comes to complain of when it suits his 
purpose : Per Lord Kenyon, in R. v. Clarke, 1 East 46. 

In R. v. Mortloch, 8 T. R. 300, the Court refused to grant an informa- 
tion in the nature of a quo warranto, because the party applying for it had 
agreed not to enforce a by-law upon which he afterwards attempted to im- 
peach the defendant's title. 

An application for a quo warranto information, made on the affidavits 
of several persons, of whom all but one consented to the election proposed 
to be impeached, may be granted on the affidavit of that one, if he avow 
himself to be the relator : R. v. Symmons, 4 T. R. 223. 

It has been held that it is a valid objection to a relator applying for a 
quo warranto that he was present and concurred in the election of another 
burger, when the objection he sought by the application to avail himself of 
was taken and overruled, and he voted for the party then elected : R. v. 
Parkyn, 1 B. & Ad. 690. 

Where a corporator has attended at a meeting for the election of the 
officers of the borough, he will not be allowed to become relator in quo 
warranto, and impeach the titles of the persons there elected, on account 
of an objection to the title of the presiding officer, unless he shew that at 
the time of the election he was ignorant of the objection : R. v. Slythe, 6 B. 
& C. 240, 

A borough officer wno administers a declaration of office to a disquali- 
fied councillor, wiU not be heard as a relator to upset the election : R. v. 
Greene, 2 Q. B. 460. 

Previous to an election, voting papers were delivered duly filled up, 
except that the column for the number of votes was left blank. After the 
election, a rule for a quo warranto was obtained by one Edward Shaw, 
one of the unsuccessful candidates, against two of the persons declared 
duly elected, on the ground that the voting papers having been left blank, 
the election was void. But the Court held that as Shaw himself had voted 
with a voting paper left blank, and had also taken part at former elections 
where a similar course had been pursued, and had been himself so elected, 
that he could not be heard as relator: R. v. Lofthouse, L. R. 1 Q. B. 

In the last mentioned case, Shee, J., said: 

"The present relator has concurred in the very act he now com- 
plains of, for he has used voting papers in blank in this very election 
and in others. Therefore, in the exercise of our discretion, we ought 
not to assist him." P. 144. 

The principle of the foregoing cases is, that the acquiescence of the 
relator in the objectionable election, instead of at the time raising the ob- 
jection, precludes him from afterwards becoming relator. 

It might be different if it were shewn that the conduct of the return- 
ing officer was plainly illegal ; and that the relator was not in any manner 
instrumental in, or accessory to producing the result which he afterwards 
complained of : R. ex rel. Mitchell v. Adams, 1 Cham. B. 203. 

It is doubtful whether at the time of the election, there were in the 
village two persons qualified for each seat in the counoil. If the relator 
at the time knew or had good reason to believe that there were a sufficient 
number of qualified persons in the village to be elected, it was his duty 
to have raised the objection instead of acquiescing in thfe assertion of the 
township clerk, that there were not. But instead of doing so, he submits 
to the assertion of the township clerk, who of all men in the township, 
was best qualified to give an opinion in such a matter, and endeavours 
to gain an advantage by it by having himself elected to the council, although 
not qualified, if his present contention is well grounded. , 

When defeated in this attempt, he suddenly becomes concerned for 
the public interests, proclaims the clerk was wrong, that all the electors 
were wrong, that all the elected were wrong, and that he himself was 
wrong, for there were, in truth, ten qualified persons. 

His zeal for the public, if not simulated, comes too late. He does not 
pretend that he was ignorant of the facts which he now sets up, at the 
time of the election ; on the contrary, he desires the Court to understand 



312 CASES AS TO EELATOES. 

that he, or somebody else not named, made the objection at the time of 
the nomination ; other electors with more appearance of truth say that 
there was no such objection made. 

I do not now decide whether the objection was good or bad, and I do 
not think I am called upon to decide at the instance of the relator, who, as 
it appears to me, to serve his own purpose, and his own interests, rather 
than the interests of the electors generally, is endeavouring to play ' fast 
and loose.' " 

Miscellaneous Cases as to Relators, — In R. ex rel. Brine v. Booth, 
1883, 9 P. R. 452, affirmed 3 O. R. 144, the relator though successful was 
deprived of costs on the ground that he was auditor. See also R. ex rel. 
Lafinson v. McCarthy, 1903, 5 O. L. R. 338, where the Master refused to 
follow R. V. Booth, supra, in the absence of actual proof that the clerk 
of the township was behind the proceedings but each party was ordered 
to pay his own costs though the relator was successful. 

In R. ex rel. Sharpe v. Beck, 1909, 13 O. W. R. 457, 539, a relator 
was held incompetent to attack the right of a municipality to a deputy 
reeve, because he voted at the election. The statute removes this ground. 
It was suggested in this case, and also in R. ex rel. Sullivan v. Church, 1914, 
26 O. W. R. 375 ; 6 O. W. N. 116, 365, that the obvious course to attack 
the right of a municipality to a deputy reeve was to move to quash the 
by-law passed for the holding of the election under s. 48, see supra, p. 55. 
In the latter case a preliminary objection was taken that the right of the 
municipality to a deputy reeve could not be questioned unless due notice 
was given to the municipality that it might come in and defend. Britton, 
J., overruled the objection as the act is silent as to the giving of any such 
notice, but he pointed out that the effect might be to quash a municipal 
by-law passed under s. 48 behind the back of the municipality. 

The right to a deputy reeve is governed by s. 51, supra, p. 53. The 
mode of computing the names was discussed by Britton, J., in Re ex rel. 
Sullivan v. Church and he laid down the principle that no scrutiny was 
intended beyond that of seeing that the name of any elector is not counted 
more than once. That prima facie the determination of the council must 
stand. If it is wrong the onus of shewing error is on the attacking party. 
He rejected all evidence as to tenants who had moved away, persons who 
had died, etc. 

See also R. v. Trevenen, 1819, 2 B. and Aid. 339, where a relator who 
concurred in the election though then ignorant of the objection was held 
incompetent, and R. v. Payme, 1818, 2 Ch. 369, where the relator as legal 
adviser to the defendant had advised him that his election was valid. 

On the other hand it is no objection to a relator that he is moved 
by a strong party spirit. R. v. Benney, 1831, 1 B. and Aid. 684, and 
concurrence in an election was not held fatal in R. v. Morris, 1803, 3 East 
213. 

The motives of a relator are not material. R. ex rel. Moore v. Hamill, 
1904, 7 O. L. R. at 603, following Wheler v. GiWbs, 1880, 4 S. C. R. 
430. R. V. Lofthouse, supra, was followed by Falconbridge, O.J., in R. ex 
rel. McLeod v. Bathurst, 1903, 5 O. L. R. 573, where a relator complain- 
ing of certain irregularities by voting for a councillor who was in the 
same class with the other respondents was held to have acquiesced in and 
become a party to the irregularity complained of and therefore could not 
be heard to complain. R. v. Lofthouse was also followed in R. ex rel. 
Tolmie v. Campbell, 1902, 4 O. L. R. 25, where a relator complaining of double 
voting was held disqualified because he had encouraged voters to vote more 
than once and only complained after his unexpected defeat. The relator, 
a candidate, was present when the ballots were being counted and con- 
curred in the rejection of a certain ballot by the returning officer. Exclud- 
ing the ballot in question the vote was a tie and the returning officer cast 
his vote for the respondent. The ballot was improperly rejected but the 
relator was held not entitled to institute proceedings, following R. ex rel. 
Regis V. Cusac, supra; R. ex rel. Park v. Street, 1905, 1 W. L. R. 202. 

The Validity of an Election. — An election is not defined in . 
the Act. It has been repeatedly held that an election commences with 
nomination, see notes to s. 63 supra. It may end with the declaration of 
the returning officer made under s. 68 (3) or under s. 127 or in case of a 



WHAT MAY BE COXTESTED. 213 

recount with the declaration made under s. 129 (8) . In case of proceedings 
to contest by a Judge's order under s. 174. Several elections may com- 
mence at the same nomination meeting as where mayor and aldermen 
for different wards are to be elected. Some of these may end on nomination 
day, defers when the declarations under ss. 127 and 129 are made or the 
order under s. 174. 

Right of Member to Hold His Seat. — ^Tbe ground for bringing 
the proceedings authorized by Part IV. was first given by Edw. VII. c. 18, 
s. 32. The right to hold a seat although acquired by a valid election may 
be subsequently lost. For example s. 53 enumerates certain disqualifica- 
tions and provides that the persons so disqualified, besides being ineligible 
to be elected which would affect the validity of the election, shall not be 
entitled to sit or vote in council or members of council who vote for an im- 
proper diversion of sinking fund becomes disqualified under s. 303 (5), 
and members who vote for borrowing a sum beyond the authorized limit 
are disqualified under s. 319 (3). Members convicted of having knowingly 
committed any offence under the Liquor License Act, E. S. O. 1914, c. 
215, by s. 64, forfeit and vacate their seats and become ineligible to be 
elected or to sit or vote, under s. 64 of said Act and at common law a coun- 
cillor's seat may become vacant if he is elected to and accepts an incom- 
patible office, if for example, being an alderman, he should without resign- 
ing be elected and accept the ofiice of mayor. R. v. Bangor, 1886, 18 Q. 
B. D. 349; 56 L. J. Q. B. 326; (C.A.) on appeal Pritchard v. Bangor, 
1888, 13 App. Cas. 241; 57 L. J. Q. B. 313 (H.L.). In the Court of 
Appeal, Lord Esher said, " A long series of decisions upheld and enunciated 
the position that where two ofliices are incompatible a man is not pre- 
vented from being a candidate for one of the offices merely because he holds 
the other whether it be superior in rank or power or not. But the way the 
principle acts is, that a man on being elected and on accepting the second 
office thereupon vacates the first and can properly be said to have been 
legally elected to the second." But this common law principle may be 
modified in Ontario by the provisions of s. 154 supra; see notes to s. 154. 

Where a seat becomes vacant under the provisions of 152 because of 
the imprisonment, insolvency or absence of a councillor the proceedings 
under Part IV. do not apply ; see notes to s. 152. 

Bigbt of a Local Mnnicipality to a Deputy Reeve. — The 

number of deputy reeves is prescribed by s. 51. Acquiescence in the elec- 
tion which would otherwise disqualify a person from being a relator is by 
s.-s. 2 not a ground of disqualification. 

N.B. — Cases where right to a deputy reeve is in question : B. ex 
rel. Sharpe v. Beck, 13 O. W. R. 457, 539 ; R. ex rel. Sullivan v. Church, 
1914, 26 O. W. R. 375. 

162. — (1) If within six weeks after an election, or one 
month after the acceptance of office by a member of a 
council a person entitled to be a relator shows by affidavit 
reasonable ground for supposing that the election was 
not legal, or was not conducted according to law, or that 
the person declared elected was not duly elected, or for 
contesting the validity of the election, or if within six 
weeks after the facts come to the knowledge of a person 
entitled to be a relator he shows by affidavit reasonable 
ground for supposing that a member of a council has 
forfeited his seat or become disqualified since his elec- 



214 METHOD OF PKOCEDUEB. 

tion, the Judge or the Master in Chambers, as the case 
may be, shall give his fiat, authorizing the relaior, upon 
entering into a recognizance as hereinafter provided, and 
the same Iseing allowed as sufficient, to serve a notice of 
motion to determine the matter. 

(2) The recognizance shall be entered into before the 
Judge or Master in Chambers granting the fiat or before 
a commissioner for taking affidavits, by the relator in 
the sum of $200 and by two sureties, to be allowed as suf- 
ficient by the Judge or Master in Chambers upon affidavit 
of justification, each in the sum of $100 ; and shall be con- 
ditioned to prosecute the motion with effect and to pay to 
the person against whom it is made any costs which may 
be adjudged to him against the relator. 

(3) When the recognizance has been allowed as suffi- 
cient, the Judge or Master in Chambers by whom it is 
allowed shall note upon it and upon the fiat allowing 
service of the notice of motion, the words "Recognizance 
alloived" and shall initial the same. 

(4) Where the proceedings are taken before a Judge 
of the High Court or before the Master in Chambers 
they shall be entitled in the High Court ; and where they 
are taken before a Judge of a County or District Court 
they shall be entitled in that Court. 3 Edw. VII. c. 19, s. 
220, redrafted. 3 & 4 Geo. V. c. 43, s. 162 (1-4). 

TIME WITHIN WHICH PBOOEEDINGS CAN BE INSTITUTED. 

(a) Within Six Weeks after an Election. — The Municipal Cor- 
porations Act (Imp.), 45 and 46 Vict. e. 50, s. 88, provides "within 
twenty-one days after the day on which the election was held." This 
wording was followed in the Municipal Act, R. S. M. c. 133, s. 197, and 
the Winnipeg charter. The language of this section is to be contrasted 
with that of s. 129, providing for a recount which is " within fourteen days 
after the declaration by the clerk of the result of the election and with 
that of the Winnipeg charter in. the same connection which is " at any time 
within fourteen days from the time the ballot papers are received by the 
clerk." The question under 162 is when does an election end? It would seem 
that the summing up and declaration of the result by the returning officer on 
the day following the polling day as provided in s. 126 was a material .part 
of the election, and it certainly is the date when the summing up dis- 
closes that two or more candidates have an equal number of votes for then 
the clerk under s. 127 must give a casting vote. 

In computing the six weeks the day on which the election ends must be 
excluded and the application can be made at any time within the six 
weeks commencing on the following day. A part of a day will not be con- 
sidered. 



TIME FOK TAKING PKOCBEDINGS. 315 

(b) Within One Month, after the Acceptance of Office. — The 

Municipal Corporations Act (Imp.), 45 and 46 V. c. 50, ^, 34, requires 
every qualified person elected to " accept the office by making and sub- 
scribing the declaration " or be liable to a fine. S. 242 requires every per- 
son elected a member of council to take the declaration before acting and 
s. 244 infra provides a penalty for refusing the office or not making and 
filing the declaration. It is therefore plain that becoming a candidate and 
being declared elected do not amount to acceptance of the office. Formal 
acceptance is made by taking the prescribed declaration which indeed con- 
tains a promise to " execute thu office " and this has been expressly decided 
in R. ex rel. Clancy v. Mcintosh, 46 U. C. R. 9v8, which was followed in 
R. ex rel. Felitz v. Howland. 1886, 11 P. R. 264, where acts claimed to 
amount to informal acceptance, as declaring at a public meeting that hav- 
ing been elected he would fulfil the duties, and attending at the city hall 
after his predecessor had vacated office and being introduced as mayor and 
addressing the officials as to their duties were held not to amount to fojmal 
aceptance. The statute required formal -aeeptance by the statutory declara- 
tion and accordingly the respondent's contention that the proceedings were 
too late, not having been commenced within one mouth of the informal 
acceptance was overruled. 

Within one month after means that the application may be made 
within the calendar month commencing the day following that on which 
the declaration is made and filed : see Interpretation Act, and article on 
Computation of Time. 

While the proceedings arc to be entitled in the Supreme or County 
Court they are not proceedings in the Court, but proceedings bjefore the 
Judge as persona designata, and a judgment when given is sui generis: 
see s. 178 aid R. ex rel. Grant-v. Coleman, 1882, 7 A. R. at 624. 

■Within Six W^eehg after the Facts Come to the Knowledge 
of a Relator. — That is facts shewing reasonable ground for supposing 
that a member of council has (1) forfeited his seat, see notes to s. 53, 
swpra; or (2) Ijeeome disqualified since his election, see notes to s. 53,- 
supra. 

When Time Ends. — The relator's application may be made at any 
time up to midnight on the last day. And under " the Interpretation Act," 
R. S. O. 1914, c. 1, s. 28 (ft), it is provided: if the time limited by any 
Act, for any proceeding or for the doing of anything under its provisions 
expires or falls upon a holiday, the time so limited shall extend to, and snch 
thing may be done on the day next following which is not a holiday. 
As to "holiday," see the same. Act, s. 29 (1), and generally see article 
on Computation of Time. 

Proceedings after Time is up in Cases Within Part IV. — In 

R. ex rel. Clancy v. St. Jean, 1881, 46 D. C. R. 77, it was held that a voter 
in another ward who could not be a relator in proceedings under Part IV. 
might nevertheless apply on information for a writ of quo warranto apart 
from lart IV., to unseat a member of council; S"e also R. e.v rel. Coleman 
V. O'Hare, 2 P. R. 16, and the title quo warranto, infra, and on principle 
an eleeloi. ;n one local municipality in a county might by i/wo icarranto 
contest the light of another local municipality in the same county co a 
deputy reeve. 

Reasonable Ground for Supposing that the Election -was not 
Iiegal, etc. — ^A Judge has a wide discretion to grant or refuse a fiat. It is 
for him to decide -if the grounds set up are reasonable. A reasonable doubt 
is not sufficient. All the circumstances of the application should be con- 
sidered. In R. V. Cousins, 1873, L. R. 8 Q. B., 42 L. J. Q. B. 124, 
which was an application for leave to file an information, Blackburn, J., 
said :■ — " When the object is to turn out a person from an office, especially 
an annual office, if he is the right man to be in the place, and no one else 
can be improperly out, and no harm can be done, we cannot, in our discre- 
tion, grant leave to file an information." 

If the material discloses a mere irregularity without material result or 
where the application is merely vexatious. (See 10 Hals. 134). 



216 HEASONABLB GROUNDS FOE APPLICATION. 

The material placed before the Judge need not disclose all the grounds 
on which the relator intends to rely : R. ex rel. Clark v. McMuUen, 9 
U. C. R. 467. 

There may be two or more relators, and an information will be granted 
at the instance of any who are qualified though the others are incompetent: 
10 Hals. p. 135. 

In R. V. Ward, 1873, L. R. 8 Q. B. 210, 42 L. J. Q. B. 126, Blackburn, 
J., cited the rule laid down by Lord Mansfield in R. v. Stacey, 1785, 
1 T. R. 1, which was as follows : — " I remember when it was so much the 
practice of the Court to grant quo warranto informations as of course, that 
it was held prudent never to shew cause against the rule for fear of dis- 
closing the grounds on which the party went. But now, since these matters 
have come more under consideration, it is no longer a motion of course; 
and the Court are bound to consider aU the circumstances of the case before 
they disturb the peace and quiet of our corporations," and Blackburn, J., 
added that the principle so laid down in 1785 had been acted on ever since, 
and he proceeded to review the authorities, including R. v. Cousins, supra. 

In R. ex rel. Warr v. Walsh, 1903, 5 O. L. R. at 272, Meredith, C.J., 
apparently considered that R. v. Ward and R. v. Cousins laid down prin- 
ciples shewing that a Judge has a very wide discretion on an application 
for a fiat, though he did not find it necessary to consider whether or not that 
discretion could be- exercised on the return of the motion. 

Allow^ing Recognizance as Sufficient. — This has to be done before 
the fiat is granted, and when the usual recognizance has been entered into 
by the relator and his bail or sureties with the statutory affidavit of justi- 
fication, the security is completed and it is the Judge's duty to allow it as 
sufiicient : R. ex rel. Harwood v. Fournier, 1892, 14 P. R. 463 N., followed 
in R. ex rel. Walton v. Freeborn, 1901, 2 O, L. R. 165. Notwithstanding 
s.-s. 3, the words " recognizance allowed " may be noted at any time if by 
oversight they were not noted when it was allowed. Ih^d. 

There is no necessity for the signatures to the recognizance of the 
persons to be bound by it, and where a recognizance has been allowed as 
sufiicient there is no appeal : R. ex rel. Maugan v. (Fleming, 1892, 14 P. R. 
458. 

Where there are several respondents under s. 166 the recognizance 
may provide for " such costs as may be awarded to the said defendants 
against the relator," when they will be payable to the defendants jointly 
or the recognizance may be made in favor of the defendants " or any of 
them," but there is no clear authority for this change : R. ex rel. Warner 
V. Skelton, 1911, 23 O. L. R. 182. 

Setting Aside Proceedings after Fiat Granted. — In R. ex rel. 
McFarlane v. Coulter, 1902, 4 O. L. R. 520, Street, J., held that there 
was no appeal from any interlocutory proceedings. In that case the 
Judge, after granting a fiat, set aside the relator's whole proceedings. 
Street, J., expressed no opinion as to the merits of the order, pointing out 
as the statute then stood no power to make it was expressly given. The 
learned Judge considered that R. ex rel. 'Grant v. Coleman, 1881, 8 P. R. 
497, 7 A. R. 619, was no longer law. 

The question came up again in R. ex rel. Boyce v. Porter, 1915, 33 0. 
Ii. R. 575, where the defendants moved before the County Court Judge 
who granted the fiats to set them aside. He refused, holding that he had 
no power so to do and dismissed the defendants' motions but gave them 
leave to appeal. The appeal was based on ss. 161 (2), 162 (1) and 163. 
In the affidavit the relator did not describe his interest except by reference 
to the proposed nature of motion and said only that he had " an interest 
in the election as an elector." The fiat was not in general terms but 
ordered that the relator, upon filing the statutory recognizance, "be at 
liberty to serve the said notice of motion." In the Appellate Division, 
Riddell, J., Falconbridge, C.J.K.B., agreeing, held that assuming that the 
County Court Judge acted as persona designato), an appeal lay with his 
consent under Judges Orders Enforcement Act, R. S. O. 1914, c. 79, and 
that the appeal should be allowed with costs. Latchford and Kelly, J.J., 
held that c. 79 did not apply, the latter using the following language: — 
" To hold that c. 79 can be invoked to support the bringing on of this 
appeal would be to permit an appeal in cases where it is expressly pro- 



WHAT MATERIAL EEQUIEBD FOE APPLICATION. 217 

hibited by the Municipal Acts, especially would this be so where the pro- 
ceedings are instituted before a Judge of the Supreme Court whose deci- 
sion is, by s. 179 (1), made final, but who would have it in his power if 
e. 79 has application to defeat the express terms of s. 179 (1) as to 
finality by granting leave to appeal from his own decision. But it may 
be argued that the limitations of appeals by s. 179 (1) applies only to 
an order or decision finally disposing of the matters in issue, and not to 
decisions of matters of an interlocutory nature. If that were so, we 
should have the anomalous situation of possible appeals to a Divisional 
Court from interlocutory orders, when no such appeal lies from an order or 
decision determining the question in issue in the proceedings." The appeals 
were therefore dismissed, the Court being equally divided. As the ques- 
tion now stands, there is no appeal even by leave in interlocutory matters: 
R; ex rel. Grant v. Coleman, 7 A. R. 619, supra, and Re Moore and March, 
20 O. li. R. 67, were referred to. 

The judgment of Riddell, J., contains a valuable history of the former 
practice. If a Judge in interlocutory proceedings withdraws the fiat there 
is no appeal, and apparently no remedy however erroneous his action may 
be. Query, would a writ of prohibition lie where a persona designata was 
acting on a wrong principle? 

Material Required. — (Falconbridge, C.J.K.B., and Riddell, J., in 
the App. Div. ex rel. Boyce v. Porter, 1915, 33 O. L. R. 575, held 
that it was necessary to shew somewhere in the material before the Judge 
on granting a fiat tha't the relator had a right to interpose, though it might 
not be necessary to establish the statute by afiidavit, citing R. ex rel. 
Bartliffe v. O'Reilly, 8 A. R. 617), and the omission to do so is not an 
irregularity, but the omission of a prerequisite to the granting of a fiat 
and a ground for setting aside aU proceedings based upon it, citing R. ex 
rel. Chauncey v. Billings, 12 P. R. 404, at 407; R. ex rel. O'Reilly v. 
Charlton, 1874, 10 U. C. L. J. N. S. 105 ; R. ex rel. Percy v. Worth, 1893, 
23 O. R. 688. But apparently a Judge may grant a new fiat on new 
material. 

Autborizing the Relator to Serve a Notice of Motion. — The 

proposed notice of motion may be submitted to the Judge and the fiat may 
expressly authorize the very notice which is to be served, but apparently 
a fiat in general terms would be good. See remarks of Riddell, J., in R. 
ex rel. Boyce v. Porter, 1915, 33 O. L. R. at 577. As to the contents and 
amendment of notice of motion, see notes to s. 163. 

163. The relator in his notice of motion shall set forth 
his name in full, his occupation and place of residence, 
and the interest which he has in the election, whether 
as candidate or as an elector, and shall state specifically 
under distinct heads all the grounds of objection to the 
validity of the election complained of, and in favour of 
the validity of the election of himself or of any other 
person, where the relator claims that he or that such per- 
son was duly elected, or the grounds of forfeiture or dis- 
qualification, as the case may be. 3 Edw. VII. c. 19, s. 
221 (2), redrafted. 3 & 4 Geo. V. c. 43, s. 163. 

FORM OF NOTICE OF MOTION. 

Amending a Notice of Motion. — The form of notice of motion 
considered in R. ex rel, Morton v. Roberts, 1912, 26 O. L. R. 263, was as 
follows : — " Take notice that by leave of His Honour .Judge Monck, Junior 
Judge of the County Court of the county of Wentworth, a motion will be 



218 POEM OF NOTICE OP MOTION. 

made on behalf or the above-named John E. Morton, of the township of 
Barton, in the county of Wentworth, dairyman, and an elector entitled to 
vote at a municipal election in the said township of Barton, before the 
presiding Judge in Chambers at the Court House in the city of Hamilton, 
on the 8th day after the day of service of this notice on you (excluding 
the day of service), at the hour of eleven o'clock in the forenoon, or so 
soon thereafter as the motion can be heard, for an order declaring that 
the said Frank E. Rymol, the above-named defendant, hath lost his right 
to hold his seat as deputy-reeve of the township of Barton, and has become 
disqualified since his election to hold his said seat, he having since his 
said election sold and disposed of the property on which he qualified, and 
not being otherwise qualified or possessing the necessary property qualifi- 
cation required by the Consolidated Municipal Act, 1903, and amendments 
thereto." 

It appeared from the material filed that the respondent had not taken 
the necessary statutory declaration required under s. 242. 

Hidden, J., pointed out that s. 221 (2) of the then Act (now. 163), 
makes no reference to a ease in which the validity of the election is not 
complained of and no claim is made for the election of some one else as in 
that case, and he held that the notice of motion might be amended by 
setting up the omission to make the statutory declaration. He further 
held that s. 226 (now 168) did not apply, or if it did it was eminently 
a case where " the Judge in his discretion " should " entertain any sub- 
stantial ground of objection to the right to hold the seat." 

The Municipal Elections (Corrupt, etc.. Practices^ Act (Imp.), 1884, 
47 and 48 Vict. c. 70, s. 12, provides that an election petition may be 
amended for the purpose of complaining of an illegal practice with leave 
within the time within which a petition complaining of an election on that 
ground can be presented. 

In the absence of a similar provision as to the amendment of a notice 
of motion under Part IV., it would appear that a Judge might, within the 
time for applying under s. 162, grant- leave to serve an ainended notice. 
The course followed by Riddell, J., in R. ex rel. Morton v. Roberts, supra, 
in allowing the amendment at the trial, would indicate that he applied to 
motions under Part IV. the practice and procedure of the Supreme Court 
as to amendment of notice of motion under s. 186. 

In R. ex rel. Roberts v. Ponsford, 1902, 3 O. L. R. 410, a motion for 
" Tuesday, the 24th," Tuesday being in fact the 25th. was amended. 

In R. ex rel. Percy v. Worth, 1893, 23 O. R. 688, a notice of motion 
which did not shew any interest in the relator was allowed after an afli- 
davit was filed shewing the relator's interest. See also R. ex rel. O'Reilly 
- J!., Charlton, 1874, 6 P. R. 254. 

Appeals. — Right to refused. See R. ex rel. Grant v. Coleman, 7 A. R. 
at 625. 

164. Before serving the notice of motion, the relator 
shall file all the affidavits and material upon which he 
intends to move, except where oral evidence is to be 
taken, and in that case he shall name in the notice the 
witnesses whom he proposes to examine. 3 Edw. VII. c. 
19, s. 222, amended. 3 & 4 G-eo. V. c. 43, s. 164. 

This section is identical with Consolidated Rule 1041, which, with 
other rules, were finally made part of the Aot. In R. ex rel. Mangan v, 
Fleming, 1892, 14 P. R. 458, the relator filed a copy of an affidavit in 
support of his application for a fiat, and having obtained it served a 
notice of motion which stated that in support of the motion the testimony 
of certain named witnesses would be relied on, and that the affidavit of the 
relator would be read as well, and also stated that such affidavit was filed. 
Ferguson, J., held that it was not a fatal objection to the service of the 
notice of motion that the affidavit used in obtaining the fiat was not then 



SEEVICB OF NOTICE OF MOTION. 319 

immediately filed and that an affidavit used for the purpose of procuring 
the fiat is not necessarily an affidavit on which the relator " intends to 
move," and he added: — "The literal reading of Rule 1041 favours the 
contention of the relator that a case where viva voce evidence is to be 
taken is an exception to the rule requiring all the affidavits and material 
to be filed (that is all upon which the relator intends to move) before 
the service of the notice of motion. , But I do not think this the true 
meaning. I am of the opinion that, notwithstanding the apparent excep- 
tion, the relator must file the affidavits and material to be used in sup- 
port of his motion before serving the notice of motion. . . . The omis- 
sion to file them does not, however, I think, constitute a good reason for 
setting aside the service of the notice. The effect simply is, I think, that 
he cannot read affidavits or material not so filed in support of the motion, 
and in this case the relator says he does not want to read anything of the 
sort. Even when affidavits and material are filed they must be mentioned 
or referred to in the notice of motion or they cannot be read in support of 
the motion. Mentioning an affidavit or other material in the notice of 
motion when there is no such paper or none such filed, does not, so far as 
I can see, vitiate the motion. The mover may, nevertheless, proceed as 
best he can upon the material he has properly before the Court." 

In K. ex rel. Ivison v. Irwin, 1902, 4 O. L. R. 192, the notice of 
motion mentioned affidavits and also gave the names of witnesses. It was 
contended that the relator was precluded from supplementing his affidavit 
evidence by calling witnesses to give viva voce evidence, but this was 
overruled, following R. ex rel. Mangan v. Fleming, supra, and a witness 
whose affidavit was read was allowed to suppleinent it by parol testimony. 

165. The notice of motion shall be served within two 
weeks from the date of the fiat, unless upon a motion to 
allow substituted service the Judge or Master in Cham- 
bers otherwise orders, and not less than seven clear days 
before the day on which the motion is retufnable, and 
shall be served personally, unless the person to be served 
avoids personal service, in which case an order may be 
made for substituted service. 3 Edw. VII. c. 19, ss. 221 
(1) and 223, amended. 3 & 4 Geo. V. c. 43, s. 165. 

Where a notice of motion in quo warranto, to contest the validity of 
the election of respondents as aldermen, was allowed, by fiat of a Master, 
to be served upon the j"espondents, and was served on the 15th of Febru- 
ary (seven clear days being required) for "Tuesday, the 24th day of 
February," the 24th of February being a Monday. Afterwards the relator 
served upon the respondents a notice to the effect that the day on which 
the motion would be made was Tuesday, the 25th of February. But this 
notice was not a seven clear days' notice. Held, that the notice of motion 
was good and sufficient for Tuesday, the 25th February, and that the 
sureties upon the relator's recognizance would have no ground of objec- 
tion because of the proceedings not being properly prosecuted : R. ex rel. 
Roberts v. Ponsford, 1902, 3 O. L. R. 410. 

166. Where the relator alleges that he or some other 
person was duly elected, the motion shall be to try the 
validity of the election complained of and of the alleged 
election of the relator or other person. 3 Edw. VII. c. 
19, s. 224, amended. 3 & 4 Geo. V. c. 43, s. 166. 



220 ONE MOTION- AGAINST SEVERAL MEMBERS. 

The declaration that a person has been elected completes his election, 
and before the relator or another can be declared elected the validity of the 
election complained of must be determined, and if it is found invalid there 
must be a further determination that the election of the relator or another 
was invalid. See s. 163. 

The order in such a case may provide for the removal of the respond- 
ent and the admission of the person duly elected. See s. 174. 

This section renders it necessary for the relator to claim the seat for 
another person than the respondent or the Court has no jurisdiction to try 
the validity of the election of that other. Where the seat is claimed for 
another then the motion must be (1) to try the validity of the election of 
the respondent, and (2) if the respondent is found not to have been validly 
elected to try the validity of the election of the other person alleged in the 
notice to have been elected. 

If the notice of motion does not claim the seat for another, and it 
appears in evidence that another v?as elected, an order cannot be made for 
his admission to the seat without an amendment of the notice of motion 
made on the application of the relator. The Judge has power to grant 
such an amendment. See p. 218, supra. For authorities, see E. ex rel. 
Percy v. Worth, 23 O. R. 688. See also notes to ss. 168 and 174. 

167. Where the grouiids of objection apply to two or 
more persons elected or sitting as members of a council, 
the relator may proceed by one motion against all of 
them. 3 Edw. VII. c. 19, s. 225, amended; 3 & 4 Geo. V. 
c. 43, s. 167. 

In R. ex rel. St. Louis v. Reaume et al., 1895, 26 O. R. 460, the Chan- 
cellor said of this section, when it was urged as a reason for listening to 
no objection which was not common to all the cases, that it " is merely a 
convenient guidfe for procedure so that cases having so much in common 
that they can conveniently be tried together may be combined in- one pro- 
ceeding — with the double advantage of economy and expedition." 

In R. e.x rel. Burnham v. Hagerman & Beamish, 1900, 31 O. R. 
636, Street, J., in a case in which there was no common question, held that 
the two respondents could not be joined in one motion, basing his opinion 
upon the analogy of the proceeding under the Municipal Act to the common 
law quo warranto, which was criminal in its nature. 

Middleton, J., in R. ex rel. Warner v. Skelton et al., 1911, 23 O. L. R. 
at 185, thought that the section authorizes proceeding against more than 
one person in the one motion only when " the grounds of objection," that 
is all the grounds set out in the notice, " apply equally to two or more 
persons elected." 

See also R. ex rel. Cavers v. Kelly, 1906, 7 O. W. R. 280; R. ex rel. 
Seymour v. Plant, 1904, 7 O. L. R. 467, and R. ex rel. Moore v. Hamill, 
1904, 7 O. li. R. 600. (Motions to unseat a mayor and four councillors as 
disqualified under s. 302) R. ex rel. Armour v. Peddie, 1907, 9 O. W. R. 
393, 14 O. L. R. 339. (Unsuccessful motion to set aside election of reeve 
and council because clerk made declaration of election at the wrong place). 
R. ex rel Black v. CampbeU, 1909, 18 O. L. R. 269. (Unsuccessful motion 
to unseat mayor and councillors because of use of wrong Act at election). 
R. ex rel. Milligan v. Harrison, 1908, 16 O. L. R. 475. (Unsuccessful 
motion to unseat controllers who had all taken irregular declarations of 
qualification in the same form). 

Different orders may be made in respect of different respondents. R. 
ex rel. St. Louis v. Reaume, 1895, 26 O. R. 460. 

In R. ex rel. O'&hea v. Letherby, 1908, 16 O. L. R. 5S1, the Master 
in Chambers cpnsidered in addition to the objection common to all the 
respondents, individual objections not common, but see R. ex rel. Warner 
V. Skelton, supra. 

Costs where several respondents are joined are payable to them jointly 
and not to one only. See notes to s. 162 (2). 



SBYERAL MOTION'S AGAINST 0KB DEFENDANT. 221 

The notice of motion may include (particularizing them) claims : 

(1) That the election was invalid, and that no person was duly 
elected. S. 162. 

(2) That the respondent was not duly elected. S. 162. 

(3) That the relator or some person other than the respondent 
was duly elected. S. 166. 

(4) That the person duly elected has become disqualified or has 
forfeited his seat. S. 162. 

168. On the hearing of the motion the relator shall 
not be allowed to object to the election of the person com- 
plained of or to support the election of himself or of any 
person alleged to have been duly elected or to attack the 
right of any member to sit on any ground not specified 
in the notice of motion, but the Judge or the Master in 
Chambers may entertain any substantial ground of ob- 
jection to or in support of the validity of the election of 
either or any of the parties which may appear in evidence 
before him. 3 Edw. VII. c. 19, s. 226, amended. Cons. 
Rule 1042, 1888. 3 & 4 Geo. V. c. 43, s. 168. 

169. Where more motions than one are made to try 
the validity of the election, or the right to sit of the same 
person, all of them shall be made returnable, and unless 
otherwise directed by a Judge of the High Court, shall 
be heard and determined by the Judge or Master in 
Chambers before whom the motion, notice of which was 
first served, is returnable, and one order upon all, or a 
separate order upon one or more of them may be made, 
as he may deem proper. 3 EdAv. VII. c. 19, s. 227, 
amended. 3 & 4 Geo. V. c. 43, s. 169. 

Several Motions against One Defendant. — A Judge of the Su- 
preme Court, the Master in Chambers and the Judge of the County 
Court have equal jurisdiction and authority with the others of them and 
there would in the absence of this section be no power in a Judge of the 
Supreme Court to prohibit or enjoin either of the others from proceeding 
with a trial of the validity of an election or the right of a person to a 
seat. See remarks of Armour, C.J., in re Regina ex rel. Hall v. Gowan- 
lock, 1898, 29 O. R. at 443, which was decided before the words " unless 
otherwise directed by a Judge of the Supreme Court," were added. In 
the last mentioned case the Master in Chambers granted a flat to relator 
Winton on the 16th day of March, a County Court Judge granted a fiat 
to relator Hall in respect of the same respondent's election. The solicitor 
for Hall was present on the return of the Winton motion and the Master 
then enlarged the Winton motion and made an order that Hall be at 
liberty to appear before him on the return of the Winton motion and take 
all necessary steps to prosecute his motion in conjunction with the 
Winton motion. On the return of the motions the solicitor for Hall stated 
he had no instructions and the Master adjourned the Winton motion till 



222 SBVEKAL MOTIONS AGAINST ONE DEFENDANT. 

the 2ncl of April, the Hall motion before the County Court Judge being 
returnable on the 1st of April. On the 1st of April McMahon, J., a Judge 
■ of the Supreme Court, upon application of the defendant, made an order 
prohibiting the County Court Judge from further proceeding to try the 
validity of the election. Affidavits were then produced by relator Hall 
before the County Court Judge tending to shew that the proceedings of 
relator Winton were collusive. The County Court Judge was proceeding 
to try the case and thereupon counsel for the defendant produced and 
served him with the order of prohibition. The prohibition was continued 
by Ferguson, J., and an appeal was taken. Armour, C.J., said: "The 
proper course for the defendant to have taken was by notice of motion in 
the County Court addressed to and served on Winton and HaU calling 
upon them to shew cause why the motion before the County Court Judge 
should not be set aside or be made returnable before the Master in Cham- . 
hers, and upon this motion collusion in the first notice of motion could 
have been tried and disposed of. . . . Such course being taken and 
no collusion being shewn in the first proceedings, the learned Judge 
of the County Court will no doubt make the proceedings before him 
returnable before the Master in Chambers and we ought not to presume 
that he will not do his duty in this regard. 

" If this course had been taken, and it was in my opinion the 
proper course, the proceedings taken by way of prohibition would have 
been doubtless unnecessary, and it ought not to have been taken, the 
other course being open, and certainly not to the absolute prohibition of 
Hall proceeding with his suit. 

" No judicial knowledge of the first notice of motion was brought 
to the Judge of the County Court till the second notice of motion was 
returnable, and personal knowledge is of no effect in such a motion." 

In view of the amendment it would appear that the defendant should 
still take the course suggested by Armour, C.J., of moving before the Judge 
issuing the second fiat. If he decides that the first proceedings are col- 
lusive or for any reason declines to make the second motion returnable 
before the Judge who granted the first fiat an application on notice to 
both relators may be made before a Judge of the Supreme Court for a 
direction as to which Judge shall try the case. 

Collnsive Proceedings. — In R. ex rel. Patterson v. Vance, 1871, 
5 P. R. 334, relator Patterson obtained summons (under the former pro- 
cedure) returnable before a County Court Judge and later relator Riddel, 
the unsuccessful candidate, obtained another summons returnable before a 
Judge of the Supreme Court. Vance applied in Chambers for a summons 
to set aside Riddel's writ, or to make it returnable before the County 
Judge and Riddel obtained a summons to set aside Patterson's writ on 
the ground of collusion and for irregularities. Both summons came on 
together and the former was disposed of first by Mr. Dalton who overruled 
the objection that Riddel could not be heard to object to proceedings to 
which he was no party, saying that a voter and candidate could set up 
that the proceedings of the relator were not in good faith but really 
intended to favor the sitting member, because this shews that his inter- 
ests are unfairly prejudiced, but he cannot object to irregularities in the 
relator's proceedings. 

In R. ex rel. Forward v. Detlor, 1868, 4 P. R. 197, judgment given in 
favor of Detlor on the relation of another relator was ignored on the 
ground that there was collusion and that therefore the judgment was no 
bar to the second application. See also R. ex rel. McLean v. Watson, 
1855, 1 C. L. J. N. S. 71. 

This section may be usefully compared with rule 47 of the Crown 
Office (Eng.), under which the consolidation of several orders nisi may be 
ordered when the right to the same office is in question in quo warranto 
proceedings which is as follows : 

Rule 47. — Where several orders nisi for informations in the nature 
of quo warranto have been granted against several persons for the usurpa- 
tion of the same offices, and all upon the same grounds of objection, the 
Court may order such orders to be consolidated and only one information 



PEODUCTION OF ELECTION PAPEES. 333 

to be filed in respect of all of them, or may order all proceedings to be 
stayed upon all but one until judgment be given in that one, provided 
always that no oi-der be made to consolidate or stay any proceedings 
against any defendant unless he give an undertaking to disclaim, if judg- 
ment be given for the Crown upon the information which proceeds. 

English Iiaw and Practice. — By the 4th s. of 9 Anne l-. 25 it is 
provided that if it shall appear to the Court that the several rights of 
diverse persons to the said offices or franchises may properly be determined 
on one information, the Court may give leave to exhibit one such informa- 
tion against several persons in order to try their respective rights to such 
offices or franchises and such persons shall appear and plead or of the 
same term in which the information shall be filed unless the Court shall 
give time to plead. 

R. ex rel. Ingham v. Orde, 1830, 8 Ad. & El. 420 n., was a case 
where an order nisi against Orde on the relation of Denham was set 
aside and a second rule nisi on the relation of Ingham was granted on 
reading affidavits filed on the previous occasion and affidavits impeaching 
them and tending to shew that the qualification of Orde was merely color- 
able. The Court discharged the second rule- without hearing any answer 
to it on the merits, but gave no costs because it had been the error of the 
Court in granting the second rule nisi. 

In R. V. Alderson, R. v. Goddard, R. v. Potter, 1839, 11 Ad. & El. 3, 
three rules nisi had been obtained against three several aldermen. The 
relator was in low circumstances and in the employment of the attorney 
prosecuting the rules and that attorney had employed the same agents 
in London to instruct counsel for and against the rules. A burgess moved 
that the management of the prosecutions might be transferred to him, 
alleging that he had an interest, and collusion. Lord Denman, C'.J., said: 
" There is very imperfect evidence of collusion in this case ; and it may 
be that the parties originally applying for the informations intended hona 
fide to try the question of law. At the same time the mere circumstance 
of a person connected with a political party in the borough acting as attor- 
ney on both sides is so striking that we ought not to suffer such a state of 
things without strong proof that no improper consequence could ensue. 
Here the actual relator appears to be in bad circumstances and under the 
control of the party acting as attorney. I do not see what unfair advan- 
tage can be contemplated by these parties ; but it is so important in pro- 
ceedings of this kind that no suspicion should attach to them, that we 
think it the safest course to forbid the carrying on of the prosecutions 
by the original relator and to make the rules absolute for giving the man- 
agement of them to the party now applying. 

170. The Judge or Master in Chambers may require 
the clerk of any municipality to produce before him or to 
forward under seal to the clerk of the county or district 
court for the purpose of production, such assessment; 
rolls, collectors' rolls, ballot papers, books, voters' and 
other lists, and other records of the election and papers 
in his hands connected with or relating to it as the Judge 
or Master in Chambers may deem proper. 3 Edw. VII. 
c. 19, s. 228, amended. 3 & 4 Geo. V. c. 43, s. 170. 

Preservation of Election Papers. — It is the clerk's duty to retain 
aU ballot papers for one month and then, unless otherwise ordered, to 
destroy them, s. 146 (1). Inspection may be ordered, s. 147. Poll books, 
voters' lists, certificates and other election documents or papers must not 
be destroyed, under a penalty of $2,000 and imprisonment not exceeding 
one year: s. 189. 



224 WHEN ORAL EVIDENCE MAT BE TAKEN. 

Production of Election Papers. — When an order is made for pro- 
duction by the clerk of any document in his possession relating to an election 
the production of it by him shall be evidence that it relates to the election 
and any endorsement appearing on any packet of ballot papers so produced 
shall be evidence that the contents are as stated : s. 148. 

While the production of voters' lists, poll books, ballots, etc., in the 
manner authorized by this section combined with the provisions of s. 148 
makes it a simple matter to get before the Court the original records of an 
election, it is to be noted that the records are not made evidence of their 
contents as has been done by statute in connection with other public records. 

For example, entries in a poll book are not evidence of their con- 
tents. The production of a pall book containing a record that John Smith 
voted for mayor does not prove that John Smith voted. 

If the poll clerk who kept the book and made the record is called he 
may, if he personally knew John Smith, prove that he voted. If he did 
not know John Smith all that he can prove is that a person giving the 
name John Smith voted and that he made an entry to that effect. It may 
be that he has no recollection of the person who appeared and voted at 
the time the entry was made, in which case looking at the record he could 
say that a person who gave the name of John Smith voted on the principle 
applied where a witness proves the execution of a document when he sees 
• his name in his own handwriting as a witness, though he has absolutely 
no present recollection of the execution. 

Where there is voting for mayor, controllers and aldermen at one time 
so that each voter may receive several ballots the poll clerk's evidence as 
to the ballots handed out may be practically worthless, particularly if the 
total number of ballots shewn by the poll book disagree with the number 
of ballots found in the ballot box at the close of the poll. 

Even the oaths, statements and certificates contained in the poll book, 
or given as to the result of the election, are not evidence of the truth of 
their contents. 

Even the certificate of the Judge on a recount under s. 129 is not 

evidence of the result therein stated and the ballots may be counted again 

in proceedings under Part IV. Section 129 (9) seems expressly drawn to 

' prevent any of the proceedings on a recount from affecting proceedings 

under Part IV. 

171. Where the motion is returnable before a Judge 
of the High Court he may direct that the evidence to be 
used on the hearing of the motion be taken orally in the 
presence of counsel for or after notice to all parties in- 
terested, before a special examiner or a Judge of a County 
or District Court, who shall return the evidence so taken 
to the proper officer of the High Court. 3 Edw. VII. c. 
19, s. 229, amended. 3 & 4 Geo. V. c. 43, s. 171. 

Oral Evidence. — The defendant may cross-examine all afiiants whose 
aflidavits have been filed as the practice in the High Court is applicable 
to quo warranto proceedings. R. ex rel. Roberts v. Ponsford, 1902, 22 
C. L. T. Occ. N. 146, cited by MaeMahon, J., in R. ex rel. Ivison v. 
Irwin, 1902, 4 O. C. R. at 197. 

Where application is made at the trial to cross-examine afiiants it is 
discretionary -with the Judge to make the order; R. ex rel. Piddington v. 
Riddell, 1867, 4 P. R. 80, where Morrison, J., held he could only be 
warranted in doing so on the ground that he considered the facts sworn 
to be untrue. See also R. ex rel. Ross v. Taylor, 1902, 22 C. L. T. Occ. N. 
183, and R. ex rel. Ivison v. Irwin, supra. 

In R. ex rel. McFarlane v. Coulter, 1902, 4 O. L. R. 520, the County 
Court Judge set aside an appointment and subpoena to cross-examine affiants 
and later set aside the relator's whole proceedings. On appeal the Judge's 
decision on interlocutory matters was held to be final. 



EIGHT OF CROSS-EXAMINATION ON AFFIDAVITS. 235 

The question came up again in R. ex rel. Beck v. Sharp, 1908, 16 O. 
L. R. 267, where the provisions of s. 173 (1) were under consideration. 
Anglin, J., said, referring to s. 171, " the presence of this provision in the 
statute restricted as it is to motions returnable before a Judge of the High 
Court, indicates that where a motion is returnable before a Master in 
Chambers, or a Judge of the County Court, it was intended that all the 
oral evidence to be used on the hearing should be taken before the judicial 
officer trjing the case. Cross-examination upon affidavit is, in my opinion, 
quite as much " oral testimony ' as original evidence given by a witness 
orally examined." 

It was also held that cross-examination could only be held with leave 
and then only before the judicial oflScer to try the case. The general 
Rules of the Supreme Court as to examination on affidavits are excluded 
by the code of rules comprised in this Part IV. which are comprehensive 
and exhaustive to the extent to which they provide machinery or regulate 
procedure. . Ibid. 

Under Rule 208 of the Supreme Court, Ontario, the Master in Chambers 
has jurisdiction in quo warranto proceedings under this Part and may 
under this section direct a reference to a County Judge to take evidence. 
R. ex rel. Whyte v. McOlay, 1889, 13 P. R. 96; R. ex rel. O'Shea v. 
Letherby, 1908, 16 O. L. R. at 587. These cases were on the wording 
of s. 20.9 (2) of Cons. Man. Act, 1903, now amended; see ss. 160 (b), and 
161 (1), and it is arguable that under Part IV. a Judge of the Supreme 
Court only can direct a reference under this section. See citation from R. 
ex rel. Beck v. Sharp, supra, as to the exclusion of the general rules of 
the Supreme Court where the provisions of this part are definite and the 
jurisdiction of the Master in Chambers under this-part is definitely defined 
and therefore should not be extended by an application of Rule 208. 

172. — (1) The Judge or Master in Chambers, at any 
stage of the proceedings, may 

(a) Add the returning officer or any deputy returning 
ofl&cer or other person as a party to the proceed- 
ings. 3 Edw. Vir. c. 19, s. 230, amended. 

(&) Allow any person entitled to be a relator to inter- 
vene and prosecute, or to defend, and may grant 
a reasonable time for that purpose. 

(2) An. intervening party, shall be liable for or en- 
titled to costs like any other party to the proceedings. 3 
Edw. VII. c. 19, s. 231, amended. 3 & 4 Geo. V. c. 43, s. 
172 (1-2). 

Adding the Returning Officer or Deputy or other Person. — 

The reason for adding a party is that, by, his conduct he has or apparently 
has caused an invalid election or that it is alleged in the notice of motion 
that his conduct had such effect. 

The corresponding provision of the Municipal Corporations Act, 1882, 
45 and 46 Vict. (1) c. 50, s. 88 (2) is: "Any returning officer of whose 
conduct a petition complains may be made a . respondent to the petition." 
Under this provision it was held that a returning officer was regularly made 
a respondent where his clerk printed and caused to be used ballots con- 
taining the name of a candidate who had withdrawn: Wilson v. Ingham, 
189S, 64 L. J. Q. B. 775. The argument that the whole liability of the' 

M.A. — 15 



336 ADDING PAETIES. 

returning officer was under the penal sections corresponding to sections 
137 to 143 inclusive, was not sustained in spite of the dictum of Lord Sel- 
borne in Harmon v. Park, 1881, 6 Q. B. D. 323 ; 50 I;. J. Q. B. 227, as 
follows : " As at present advised, I am inclined to doubt whether any act 
on the part of a returning officer which did not fall within the list of 
ofEences enumerated in section 11 of the Ballot Act could be treated as 
misconduct, so as to render him liable to be made a respondent in a muni- 
cipal election petition." 

The adding of the returning officer or other person enables costs to 
be awarded against such: see s. 176 (1). The party added under par. (o) 
will of course be added as a party defendant. 

Allowing Intervening Party to Prosecute or Defend. — ^Before 
the words " prosecute or " were inserted Boyd, 0., held that an intervener 
could not have the motion transferred into his hands there being no sug- 
gestion of collusion. R. ex rel. Marson v. Butler, 1897, 17 P. R. 382. 
Under the English practice Crown Office Rules, r. 46, a new relator may 
be substituted. R. v. Alderson, 11. A. & E. 3, where the same solicitor 
instructed counsel to appear on both sides, and R. v. Quayle, 9 Dowl. 548, 
where the first relator had to go away beyond seas on business. See also 
Re Kelly v. Macarow, 14 0. P. at 460. Apparently the intervening parties 
cannot be required to enter into a recognizance or to give security for 
costs. 

The provision for the intervention of a defendant is based on the 
old law whereby, when the Court was convinced that important questions 
arose or were likely to arise which the defendant was unwilling to con- 
test, another person interested was permitted to conduct the defence at 
his own risk as to costs ; R. v. Dawes, 4 Burr. 2278 ; R. v. Marshall, 2 
Chit. R. 370, and R. ex rel. Marson v. Butler, supra. 

The intervening party must be a person entitled to be a relator. See 
s. 161 (2). 

173. — (1) The Judge or Master in Chambers shall, in 
a summary manner, without formal pleadings, hear and 
determine the questions raised by or upon the motion, 
and, subject to s.-s. 2, may inquire into the facts on affi- 
davit, by oral testimony, or by an issue framed by him 
and sent to be tried by a jury in any Court named by 
him, or by one or more of those means. 3 Edw. VII. c. 
19, s. 232 (1), amended. 

(2) Where a question is raised as to whether the 
candidate or any voter has been guilty of any violation 
of ss. 187 to 189, affidavit evidence shall not be used to 
prove the cWfence, but it shall be proved by oral evidence 
taken before the Judge or before a special examiner or a 
Judge of a County or District Court, upon an order of 
reference to him for that purpose by the Judge of the 
High Court, if the motion is returnable before a Judge 
of the High Court, or before the Master in Chambers or 
the Judge of the County or District Court if the miotioTi 
is returnable before him. 3 Edw. VII. c. 19, s. 248, 
amended. 



STRIKING OFF VOTES FOE COEEUPT PEACTICBS. 327 

(3) Where the seat is claimed for any person, if a 
candidate is proyed to have been guilty, himself or by any 
person on his behalf, of bribery or of a corrupt practice 
with respect to a voter who voted at the election, or if a 
voter, who is employed on behalf of such candidate and 
is disqualified under s.-s. 2 of s. 61, is proved to have 
voted, there shall be struck off the number of votes given 
for such candidate one vote for every siich voter. New. 
3 & 4 Geo. V. c. 43, s. 173 (1-3). 

In R. ex rel. Thornton v. Dewar, 1895, 26 O. R. 512, Rose, J., held 
that ho one can be found guilty of bribery ' under the Municipal Act unless 
the evidence discloses in him an intention to commit the offence and he 
added : " I decline to hold that a candidate desiring and intending to have 
a pure election can be made a quasi criminal by the act of an agent who 
without the knowledge or desire of the principal violates the statute to 
advance the election of such candidate. The acts which were relied upon 
here to shew bribery by the candidate were in no sense brought home to 
him personally. It was not shewn that they were done with his knowledge 
or consent, or under instructions which either expressly or impliedly Tvar- 
ranted any such misconduct even if the evidence established it against 
persons who were in a general sense agents of the candidate. It would 
shock our sense of justice to be told that where a candidate had conducted 
the election contest with every endeavour to avoid any and all acts of 
impropriety he could be' found guilty of bribery — be liiade liable to a pen- 
alty and rendered iiieligiMe as a candidate at any muni(!ipal election for 
two years because gome agent, acting to advance his interests as a candi- 
date, should without his knowledge or consent, and possibly in direct 
opposition to his express orders, have paid a man to vote for Mm. . . . 
Thus, apparently, it was not intended that in municipal elections the elec- 
tion should be declared void by reason of acts of bribery by agents where 
the candidate was not personally guilty of such acts, and had the majority 
of votes legally cast, but the agents were made liable to be punished 
for their misconduct as provided by s. 214 (now 180) . My learned brother 
Street in R. ex rel. Johns v. Stewart, 16 O. R. 583, seems to have thought 
personal misconduct on the part of the candidate essential to support a 
charge of bribery against him." , 

On the other haiid, in Kaulbach v. McKean, 1905, S8 N. S. R. 38, 
under the Municipal Cohtroverted Elections Act, K. S. N. S., 1900, c. 72, 
ss. 4, 6, 22 and 64, the full Court set aside the election of a municipal 
councillor for bribery by an ageit. R. ex rel. Thornton v. Dewar was 
criticized and the general common: law of Parliament that corrupt acts 
by agents wiU void an election was applied to municipal elections. But 
this decision was by Langley, J., based on the definition of corrupt prac- 
tices which included acts recognized as corrupt practices by the common 
law of Parliament. 

See notes to s. 171. 

Oral testimony includes cross-examination on affidavits whether taken 
on or before the return of the motion. 

Excepting where the motion is returnable before a Judge of the 
High Court all the oral evidence to be used oin the -hearing should be taken 
before the judicial officer ti'ying the case. R. ex rel. Beck v. Sharp, 1908, 
16 O. L. R. 267 ; R. ex rel. O'Shea v. Letherby, 1908, 16 O. L. R. 587. 

Answers by affidavit to oral evidence of a corrupt practice given under 
s.-s. (2) cannot be given by affidavit : R. ex rel. Carr v. Cuthbert, 1901, 1 O. 
L. R. 211. This was a decision of the master at a time when the statute 
contained a heading preceding old s. 248 as follows : " Evidence as to 
corrupt practices to be taken vivai voce." ' This was read into the section, 
applying Eastern Counties v. Marriage, 1860, 9 H. L. C. 32 ; HammersBiith 
v. Brand, 1869, L. R. 4 H. L. 171. 



228 PROVISIONS 01? OEDEE WHEN ELECTION FOUND INVALID. 

Shall Hear and Determine the Questions Raised liy or TJpon 
the Motion. — Old s. 282 (1) read instead of the above language as fol- 
lows : " Shall hear and determine the validity of the election." The change 
is rendered necessary by the amendments which extended the statutory 
procedure to cases of disqualification or forfeiture arising subsequent to 
election. 

Cross-examination of afiiants may be had as of right before the com- 
mencement of the trial, as the practice in the High Court is applicable 
to quo ivarranio proceedings, s. 185 and R. ex rel. Boberts v. Ponsford, 
1902, 3 O. L. E. 410 (CO.). But cross-examination at the trial is within 
the discretion of the trial Judge or oflBcer. R. ex rel. Ivison v. Irwin, 1902, 
4 O. L. R. at 197 following R. ex rel. Ross v. Taylor, 1902, 22 0. L. T. 
Occ. N. 183 and R. ex rel. Piddington v. Riddell, 1867, 4 P. R. 80. 

Irregularities in Proceedings. — Proceedings in quo warranto mat- 
ters under the Municipal Act are not to be held irregular and void if they 
do not interfere with the just trial of the matter on the merits. R. ex 
rel. Linton v. Jackson, 1851, 2 0. L; Oh. 18; R. ex. rel. McManus v. Fergu- 
son, 1865, 2 U. Ci L. J. N. S. 19, and R. ex rel. Grant v. Ooleman, 1882, 
7 A. R. 619, at p. 625, all discussed in R. ex rel. Roberts v. Ponsford, 
supra, at p. 415. 

Strihing off Votes. — ^The provision in s.-s. 3 is new. It is evidently 
based on s. 85 of the Municipal Oorporations Act, 1882, 45 and 46 Vict, 
c. 50 (Imp.) which provides that the votes of persons in respect of whom 
any corrupt practice is proved to have been committed at a municipal 
election shall be struck off on a scrutiny. A scrutiny under the Imperial 
Act only takes place when the seat is claimed for an unsuccessful candi- 
date. The striking off is done by ascertaining from the poll book the 
number of the ballot cast by the guilty person and the ballot is then looked 
at and the vote given by it struck off. In the Finsbury case, 1892, Day's 
El. Oases 47, the petitioner in a single session had three votes struck off 
his own total. As numbered ballots with counterfoils the number being 
entered in the poll book are not used in any Canadian municipal system 
the plan provided in s.-s. 3 is necessary if votes are to be struck ofE at all. 
Note that in contrast with the provisions of the Imperial Act votes are 
only struck off when the candidate or some one on his behalf has been 
found guilty. It is not at all certain however that the vote struck off 
was actually given to the candidate from whose total it is to be takeh. The 
s.-s. in reality provides a penalty where the candidate is guilty of a corrupt 
practice. As the striking off is only when the seat is claimed for another 
if the result is that a majority of the good votes allowed are for that other 
he may be awarded the seat. Even if the other person claiming the seat 
has not a majority the election will be void when s. 180 (1) applies. 

There is no provision by .which a candidate declared elected forfeits 
his seat by reason of votes cast in contravention of s. 61 <1). 

Under the Imperial Act although the respondent may be unseated he 
can stiU continue the scrutiny with the object of preventing the petitioner 
from obtaining the seat. Rogers Vol. III., p. 333. It is plain from s.-S. 
3 that votes may under its provisions be struck off the total of all candi- 
dates. It is therefore important where the seat is claimed for the relator 
or another for the defendant by his material in answer to set up as many 
cases as possible in which votes may be struck off his opponent. 

174. — (1) Where the election complained of is ad- 
judged to be invalid, the order shall provide that the per- 
son found not to have been duly elected be removed from 
the office, and if it is determined that any other person 
was duly elected that he be admitted forthwith to the 
office. 



ONUS IS ON THE EELATOE. 229 

(2) Where it is determined that no other person was 
duly elected, or that a person duly elected has become dis- 
qualified or has forfeited his seat, the order shall pro- 
vide for the removal from office of snch last mentioned 
person and, except as provided by s. 157, for the holding 
of a ne-<v election. 3 Edw. VII. c. 19, s. 233, amended; 
3 & 4 Geo. V. c. 43, s. 174 (1-2). 

Onus on Relator. — ^^Section 93 of the Municipal Corporations Act, 
1882, 45 and 46 Vict. c. 50 (Imp.) dealing with the trial of municipal 
election petitions provides as follows : 

(4) At the conclusion of the trial the election Court shall determine 
whether the person whose election is complained of or any or what other 
person, was duly elected, or whether the election was void. The same 
words are used in the Manitoba Municipal Act, R. S'. M. 1913, c. 133, s. 222, 
where the procedure is by election petition or under the Imperial Act. In 
construing the latter sectiori the Manitoba Court of Appeal unanimously 
held that the onus was on the petitioner and that he must aflRrmatively 
prove the charge in the petition that the respondent was not duly elected 
by a majority of the lawful votes before the Judge can make the order 
asked for in the prayer. Smith v. Baskerville, 1914, 24 M. R. 349, where 
the respondent was declared elected by a small majority and it was proven 
that there were more illegal votes cast than the majority but it could not 
be proven for whom they were cast. This was owing to the rule which 
forbids enquiry as to how a voter has voted even if he has voted illegally. 
See Re Lincoln, 1878, 4 A. R. 206; Re West Lome, 1913, 47 S. 0. R. 451. 
This difficulty does not arise under the Imperial Act where ballots can be 
traced by numbers. The situation presented in Smith v. Baskerville could 
not very well arise under the Imperial Act, but a very similar situation 
arose in Wilson v. Ingham, 1895, 64 L. J. Q. B. 775, where by mistake 
the ballot papers contained the name of a candidate Meek who had with- 
drawn. The vote was Scott, 243 ; Robson, 235 ; Ingham, 132 ; Hickeley, 
129; Wilson, 128; Meek, 34. The four highest were to be elected. The 
returning officer declared Scott, Robson, Ingham and Hickeley elected; Wil- 
son presented a petition against Ingham and Hickeley. The Court declared 
the election of the respondents void. The ground of decision was that it 
could not be said that the irregularity did not affect the result of the 
election, applying the 13th section of the Ballot Act, which reads as follows : 

13. "No election shall be declared invalid by reason of a non-compliance 
with the rules contained in the first schedule to this Act, or any mistake 
in the use of the forms in the second schedule to this Act, if it appear to the 
tribunal having cognizance of the question that the election was conducted 
in accordance with the principles laid doWn in the body of this Act, and that 
such non-compliance or mistake did not affect the result of the election," and 
which is in effect the same as s. 150, supra, before the amendment of 3 
and 4 Geo. V. c. 43, s. 150, also in effect the same as s. 176 of the Mani- 
toba Municipal Act. Section 150 now reads in such a manner vas to cast 
an onus on the plaintiff or relator similar to that stated in Smith v. 
Baskerville to affirmatively prove that the defendant was not duly elected 
or that the result was not affected by the irregularity. The effect of 
s. 150 in its present form was stated in an application to quash a by-law 
by Hedging, J.A., as follows : " Under the present section it is sufficient to 
uphold the by-law that there is no proof that the result was affected by the 
non-compliance, mistake or irregularity. If the applicant does not prove it 
and it does not otherwise appear, then, provided the principles of the Act 
governed the conduct of the vote, the by-law stands. In other words, 
the onus upon those supporting the by-law is confined to shewing com- 
pliance with the principles laid down in the Act, while upon the applicant 
is laid the burden of shewing that the result was affected by the. proved 
irregularities " : Re Sharp and Holland Landing, 1915, 34 O. L. R. at 189 



230 PEOVISIONS OF OEDEE WHEN ALL MEMBEES UNSEATED. 

App. Div. In this report there would appear to be no distinction be- 
tween the effect of iregularities at an election and at a voting on a by-law, 
whatever differences may exist between the two in other respects. 

Before the amendment of 3 and 4 Geo. V-, c. 43, while s. 204, cor- 
responding with s. 13 of the Ballot Act, was in force, it was repeatedly 
held ■ that the election must be set aside once the relator had established 
that it could not be said that the result of the election was not affected; 
for example, in R. ex rel. Ivison v. Irwin, 1902, 4 O. L. R. 192, Irwin had 
a majority of 101 votes according to the ofiScial count. It was shewn that 
a large number of the ballot papers had been tampered with. McMahon, J., 
applied s. 204, saying that it was impossible to say that the irregularities 
did not affect the result of the election, and Irwin was unseated. 

In view of the change introduced by s. 150 in its present form, the 
task of upsetting an election except for corrupt practices brought home to 
the defendant is a formidable one. The remarks of Hodgins, J.A., in 
Re Sharp v. Holland Landing, supra, although referring to the quashing 
of a local option by-law, are of general value : — " formerly proof of irregu- 
larities unsettled the basis on which the vote rested, and the Court had to 
be satisfied in some way that the result was .not affected thereby. Now, 
when irregularities are proved, the Court is not concerned with their effect, 
subject always to compliance with the principles laid down in the Act, 
unless and until it is made to appear that those irregularities did not in 
fact affect the result. In my view the Legislature has at last so provided 
that the Courts will not in the future have to busy themselves annually 
in considering the mass of unfinished and unimportant suggested impro- 
prieties relied on to defeat every local option vote." 

175. Where the election of all the jnembers of a coun- 
cil is adjudged to be invalid, or where it is determined 
that all of them have become disqualified or have for- 
feited their seats, the order for their removal, and for 
the election of new members in their places or for the 
admission of others adjudged to be legally elected, and 
for an election to fill the remaining seats in the council, 
shall be directed to the clerk of the municipality or where 
there is no clerk to the sheriff of the county or district in 
which the municipality is situate, who shall have all the 
powers for causing the election to be held which a muni- 
cipal council or any member or officer of it has in order 
to fill a vacancy in it. 3 Edw. VII. c. 19, s. 234, amended. 
3 & 4 Geo. V. c. 43, s. 175. 

All Members Unseated. — This section applies where combined mo- 
tions are brought under s. 167, with the result that all the members of 
council are unseated. It does not apply where, as a result of separate 
motions based on different grounds, all the members are unseated, as the 
section has reference to a case where a single order for removal is made. 
In case half or less than half the members are unseated the elected mem- 
bers may order a new election. If less than half are unseated the clerk 
is required to cause a new election to be held. See s. 70. Section 159 
applies where there has been no election. 

Power to Order Election. — See s. 156, supra, also Bawkes v. 
Letherby, 1908, 17 O. L. R. 304, in which it was held that a warrant must 
be issued as the very foundation for the holding of an election. 



LIABILITY OF KETTTENINQ OFriCEE FOE COSTS. 331 

176. — (1) Where an election is adjudged to be invalid 
owing to the improrper refusal of the returning officer or 
of a deputy returning officer to receive a ballot paper 
tendered by or »to give a ballot paper to an elector,_or 
owing to such officer having -put into the ballot box a 
ballot paper which was not lawfully received from an 
elector, the Judge or Master in Chambers may order 
that the costs of the proceedings to unseat the person 
declared elected, ^ or any part of them, be paid by such 
returning or deputy returning officer. 

(2) Nothing in this section shall affect any right of 
action against the returning officer or deputy returning 
officer or relieve him from any penalty to which he may 
be liable under this Act. 3 Edw. VII. c. 19, s. 235; 
5 Edw. VII. c. 22, s. 10, redrafted. 3 & 4 Geo. V. c. 43, 
s. 176 (1-2). 

Iiiability of Returning OfBlcer to Pay Costs. — ^The section speci- 
fies three cases in which the returning officer may he ordered to pay costs. 
Before this section was enacted a returning officer was ordered to pay 
costs where he improperly closed the poll and then refused a vote : K. ex 
rel. Arnott v. Marchant, 2 C. L. Ch. 189, where a similar mistake occurred 
through ignorance, costs were not awarded against the returning officer : 
R. ex rel. Coupland v. Webster, 6 L. J. 89, and R. ex rel. Corbett v. Jull, 
1869, 5 P. R. 41 ; see also R. ex rel. Joharton v. Murvey, 5 L. J. 87. 

It is submitted that as the section stands costs can only be imposed 
on the returning officer in the three cases mentioned. " May " in the 
section implies that the power is discretionary. The improper' refusal of 
a single ballot or improper reception of an illegal ballot brings the return- 
ing officer within the section and in both cases only when the election is 
adjudged invalid by reason thereof. 

Under the Ehiglish practice where the conduct of the returning officer 
has given rise to the proceedings, he may be ordered to pay costs : Halifax 
Case, 1893, 4 O'M. & H. 205. The returning officer under s. 98 Municipal 
Corporations Act, 1882, 45 and 46 V., c. 50 (1), like any other party is 
liable to costs, but to be rendered liahle must be made a party to the 
petition: Watts v. Hemming, 1907, 71 J. P. 504. 

Right of Returning Officer to Costs. — See notes to s. 172. 

Rigbt of Action Against Returning Officer at Common IJaxr. 

—The liability of the returning officer at common law depends on whether 
or not the acts or defaults in respect of which damages are claimed were done 
by him in a judicial or in a ministerial capacity. The leading case is 
Ashby v. White, 1703, 2 Lord Raymd. 938, 3 Lord Raymd. 320, where an 
elector who6e vote was maliciously rejected was held by Lord Holt to be 
entitled to an action in respect of the injury though the candidate he 
wished to vote for was elected. On the other hand, if the returning officer 
acted bona fide in an effort properly to perform his duty he would not be 
liable : Tozer v. Child, 26 L. J. Q. B. 151. Notice has been held to be an 
essential ingredient of the cause of action : CuUen v. Morris, 2 Stark 577. 
The foregping and other early cases were considered and reviewed by the 
Court of Common Pleas in the case of Pickering v. James, 1873, Iv. R. 8 
C. P. 489, 42 L. J. C. P. 217. This was an action against a presiding 
officer at an election under the Ballot Act, 1872, for damage at common 



232 EIGHT OP ACTION AGAINST RETURNING OPFlCEE. 

law, and for penalties imposed by the Act for the breach of duty on the 
part of the presiding oificer in delivering to voters ballot papers not having 
the official mark and for depositing ballot papers not having the official 
mark in the ballot box. The plaintiff succeeded. While the case depends 
on -the express provisions of the Ballot Act it reveals the principles which 
will be applied under similar Acts. It was held that the duties in ques- 
tion were ministerial, and that therefore at common law an action lies if a 
person be aggrieved unless ithe statute prevents it. It was further held 
that the returning officer was liable, though the breach of duty be not wil- 
ful or malicious. 

Pickering v. James was applied in the case Wilson v. Manes, 1896, 
28 O. R. 419, 20 O. A. R. 398, which was an action against a returning 
officer for refusing to deliver a ballot paper; the plaintiff claimed penalties 
under the Municipal Act and damages at common law. Armour, C.J., 
directed that judgment be entered for $400. to be entered generally, or if 
the ultimate judgment of the Court should be that the plaintiff was entitled- 
to recover either upon statute only or at common law only, then in respect 
of which it should be determined that the plaintiff was entitled, to recover 
with full costs of suit. This decision was upheld "by the Divisional Court, 
Meredith, C.J., considering that so far as the acts complained of were 
concerned the duties of the returning officer were merely ministerial, and 
being ministerial, the action lay for breach of duty without malice or 
negligence, and therefore held that the plaintiff was entitled to recover 
either under the Act or at common law. In the Court of Appeal the case 
was held to turn upon the proper interpretation of the word " wilful " in 
s. 168, new section. Burton, C.J.O., gave the word " wilful " the inter- 
pretation placed on it in In re Young and Harston's Contract, 1885, 31 
Ch. D. 168, where Bowen, L.J., said, as f oUows : — " That is a word of 
familiar use in every branch of law, and although in some branches of the 
law it may haye a special meaning, it generally, as used in Courts of 
law, implies nothing blameahle, but merely ■ that the person of whose 
.action or default the expression is used, is a free agent, and that what 
has been done arises from the spontaneous action of Ms wUl. It amounts 
to nothing more than this, that he knows what he is doing, and is a free 
agent." The decision of the Court, McLennan dissenting, was that the 
defendant was liable both under the Act and at common law. 

See ss. 137 to 143. 

Remedies Cumulative. — Section 11 of the Ballot Act, 1872, pro- 
vided that every returning officer should, in addition to any other penalty 
or liability, forfeit to any person aggrieved appeal sum. This section, piay 
be compared to s. 143, supra, from which it' will be apparent that the 
remedies against a. returning officer by a person aggrieved are cumulative. 

In every case, however, the whole Act will have to be looked to; 
it may be that the Act wiU disclose the intention to exclude any remedy 
except the penalties provided by it; for a discussion of the general prin- 
ciple involved, see Atkinson v. Newcastle, L. E. 6 Ex. 404. 

Judicial Acts of Betuming Officer. — In R. v. Collins, 1876, 
2 Q. B. D. 30, 46 L. J. Q. B. 257, on the trial of an issue on a quo 
warranto, it was held that the functions of the chairman in ascertain- 
ing the validity of votes was of a judicial character and could not be 
questioned in such a proceeding, but it was pointed out that if he acted 
corruptly different considerations would arise, and the same view was 
expressed in Akers v. Howard, 1886, 16 Q. B. D. 751, 55 L. J. Q. B. 273. 

177. — (1) After the adjudication an order shall be 
drawn up, stating concisely the ground and effect of the 
decision. 

(2) The order may be at any time amended by the 
Judge or Master in Chambers in any matter of form, and 



OEDEK TO BE A JUDGMEKT 01' COUET. 333 

shall have the .same force and effect as a writ of manda- 
mixs formerly had in the lilce case. 3 Edw. VII. c. 19, s. 
236, amended. 3 & 4 Geo. V. c. 43, s. 177 (1-2). 

Amendment of Order. — Compare the provisions of this section 
with Cons. Rule s. 521 of the Supreme Court of Ontario, Holmested, 
p. 1143. When an order is amended, there should be no physical change 
made in the document, but the amendment should be noted in a convenient 
place: Cons. Rule 187. It has been held that a Judge has no power to 
amend his judgment when once issued : Holmested, 1145. This, of course, 
does not prevent formal amendments. 

Shall bave Effect as a 'Writ of Mandamus in Iiike Case. — 

The writ of mandamus is now abolished : Cons. Rule S. C. O. 1913, 623. 
The order has the effect that the writ had under the old practice. The 
old writ was " in form a command issued in the King's name from the 
King's Bench Division of the High Court only and addressed to any 
person, corporation or inferior Court of Judica/ture requiring them to do 
something therein specified, which appertains to their office, and which the 
Court holds to be consonant to right and justice. It is used principally 
for public purposes, and to enforce performance of public rights or duties. 
It enforces, however, some private rights when they are withheld by pub- 
lic ofiicers :" Wharton's Law Lexicon. 

178. The Judge or Master in Chambers forthwith 
after rendering his decision shall return the same with 
all things had before him touching the proceeding, to the 
proper officer of the Court, there to remain of record as 
a judgment of the Court ; and the judgment may be en- 
forced for the costs awarded by execution and in other 
respects in the same manner as an order of mandamus. 
3 Edw. VII. c. 19, s. 237, amended. 3 & 4 Geo. V. c. 43, 
s. 178. 

Tie Proper Officer of the Court. — Section 237 read, " to the pro- 
per officer of the Court in which the proceedings are entitled." 

To Remain of Record as a Judgment of the Court. — ^Section 
237 read, " as a judgment of the High Court." It was suggested by Pat- 
terson, J.A., in R. ex rel. Grant v. Coleman, 619, 7 O. A. R. 624, that the 
judgment is sui generis, and that as the statute then stood the Court was 
not to enforce the judgment, but that was made the province of the Judge. 
While the statute as amended does not contain many of the expressions on 
which, with others still remaining, Patterson, J.A., based his reasoning, 
(which was concurred in by the rest of the Court), it seems probable that 
it still applies so far at least as Judges of the High Court ar? concerned. 

179. — (1) The decision of a Judge of the High Court 
shall be final, but an appeal shall lie from the decision or 
order of the Master in Chambers or of a Judge of a 
County or District Court to a Judge of the High Court 
whose decision shall be final. 



834 WHEN APPEAL LIBS. 

(2) The practice and procedure on and in relation to 
the appeal shall be the same, as nearly as may, he, as in 
the case of an appeal from a decision of the Master in 
Chambers in an action or proceeding in the High Court. 
3 Edw. VII. c. 19, s. 219 (3), redrafted. 3 & 4 Geo. V. c. 
43,8.179(1-2). 

The Decision slialJ be Final. — Sub-section 4 of s. 51 of the Do- 
minion Elections Act, as amended by s. 13 of 54 and 55 V. c. 20, contains a 
similar provision. 

In the St, Ann's Election Case, 1906, 37 S. C. R. 563, Idington, J., 
in the Supreme Court, commenting on this provision, referred to the Nor- 
wich Election Case, 1870, L. R. 6 0. P. 147, 40 L. J. C. P. 58, where the 
effect of similar language was discussed by Bovill, C. J., as follows : " 

" With regard to the sitting member, the determination is a 
determination necessarily as to iiis status, and Parliament has declared 
that that shall be final ; but with regard to a mere candidate or peti- 
tioner there is no such enactment, there is no decision as to his status, 
the Judge simply finds that the matter is not proved against him. 
Therefore I am at a loss to see how, so far as he is concerned, any- 
thing which it is now proposed to go into can be considered in the 
nature of matter which has been already adjudicated upon. If a 
candidate is found guilty of bribery, having had tlie opportunity of 
■ being heard, no doubt effect is given, but expressly given by statute, 
to the report of the Judge ; but there is no such enactment, nor any 
effect given to the case, where a Judge simply says by his report that 
it is not proved. If the case is declared not to be proved, it leaves 
the matter entirely open either for prosecution or to be dealt with in 
any other way, and no effect is given to the report in that form." 

It is submitted that where the seat is claimed for another than the 
person declared elected, it is open to the defendant by recrimination to 
shew that the person for whom the seat is claimed is disentitled by reason 
of disqualification, corrupt practices or otherwise, and the decision of the ' 
Judge or Master in Chambers as to the status of such person is final, and 
the report may be made respecting him under s. 180, and he will be sub- 
ject to the disqualification provided in that section. If the relator is not 
the person for whom the seat is claimed, the latter may find evidence 
being given against him though he is not a party to the proceedings : See 
Rogers, 1906, vol. III., p. 825. The Judge or Master in Chambers would 
probably add such a party to the proceedings under s. 172. See also 
Parties, supra. 

For a similar provision as to finality of decision, see ss. 4 of s. 93 
of the Municipal Corporations Act, 1882, 45 and 46 V. c. 50 (Imp.). The 
purpose of the Act Seems to be that as regards members of councils who 
are declared elected in the first instance or who are seated by reason of a 
decision under Part IV., all questions affecting the validity of the seat 
shall be tested within a certain time and under certain conditions ; and 
that after a certain time, under given circumstances, there shall be no 
further investigation as to the title to the seat, and the matter being one 
as to the status of the member, it ■ is declared that if the matter has 
been determined by a Judge of the Supreme Court that shall be final to all 
intents and purposes. See remarks of Bovill, CJ., in the Norwich 
Election case. 

Appeal from Interlocutory Order of Master. — Such an appeal 
was taken without objection in R. ex rel. Warner v. Skelton, 1911, 23 
O. L. E. 186. 

180. — (1) A candidate elected who is found to have 
been guilty of bribery, or of a corrupt practice, shall for- 



DISQUALIFICATION OP CANDIDATE FOE CORRUPT PRACTICES. 335 

feit his seat, and shall be ineligible as a candidate at any 
election for two years thereafter. 3 Edw. VII. c. 19, s. 
249. 

(2) The Judge or Master in Chambers shall report 
to the Clerk of the Municipality in which the offence was 
conxmitted the name of every candidate who has been so 
found guilty, and the clerk shall enter his name in a book 
to be kept for that purpose. 3 Edw. VII. c. 19, ss. 252, 
253, amended. 3 & 4 Geo. V. c. 43, s. 180. 

Corrnpt Practices by Candidate. — There is a distinction between 
the penalties imposed by ss. 187 to 192 and those imposed by s. 180. 
Apparently the only proceedings in which the penalties imposed by s. 180 
can be enforced are proceedings under Part IV. by a relator. 

" One Court alone, the Election Court, can make the finding, and 
that finding can only be made by it once after the trial of the petition ; 
one penalty alone, disqualification, follows from the finding. The 
candidate found guilty cannot, before any Court in any other pro- 
ceeding or at any other time be put in peril for the same offence 
"It is true he may be indicted for the crime of bribery in each specific 
case where bribery can be proved against him. But the penalties 
under the Election Act and those for the crime for which he may be 
indicted, are entirely different, and in no case could the proof of con- 
viction under the Election Act avail to defeat any indictment brought 
against him for bribery or be received as evidence of his guUt." Per 
Davies, J., St. Ann's El. Case, 1906, 37 S. C. R. at 570. 

Disqualification of Candidates. — ^A candidate the night before 
election -took a sum of over $4,000 and divided it into several parcels of 
sums ranging from $250 to $1,500. He then, after midnight, visited all 
his committee rooms and gave to the chairman of each committee per- 
sonally and secretly one of such parcels. Held, that the inference was 
irresistible that the money was intended for the corruption of the electors 
and he was properly held guilty of personal corruption and he was dis- 
qualified : St. Ann's Dom. El., 1906, 37 S. £!. R. 563. 

An unsuccessful candidate for whom a seat is claimed may be found 
guilty of bribery or a corrupt practice, but if it is found that he was not 
elected, he would not be liable to the penalty imposed by this sectiori. 
This is anomalous. Why should a candidate who is elected be subject 
to a penalty to which an unsuccessful candidate is not subject? 

A charge of corrupt practices must be established beyond a reasonable 
doubt and the failure of a candidate to act as a prudent man is not enough : 
Rudyk V. Shandro, 1915, 30 W. L. R. 689 ; 7 W. W. R. 1321; Lisgar Elec- 
tion Case, 1902, 14 M. R. 310 ; Londonderry Case, 1869, 1 O'M. & H. 274 ; 
Warrington Case, 1869, iMd. 42 ; North Victoria Case, 1874, Hodgins, 702. 
• When a charge is made of an ofEer not accepted of money to influence 
a voter, evidence is required to be particularly clear and conclusive : 
Lisgar Election Case, 1902, 14 M. R. 310 ; South Grey Case, 1871, Hodg. 
52; Prescott Case, 1883, 1 Ont. Elect. Case, 88; Northallerton Case, 1869, 
1 O'M. & H. 167. The following statements have been bold too vague and 
indefinite : " If you come with us, we have lots of money. . . . Your 
side is poor and you need money, and if you r.aiit to come with us we 
wiU give you some money." Lisgar Election Case, 1902, 14 M. R. 310. 

Disclaimer. 

181. — (1) Any person elected may at any time after 
the election, and before it is complained of, deliver to the 



236 DISCLAIMBE BY PBESON ELECTED. 

clerk of the municipality a disclaimer signed by him, to 
the effect following : 

"I, A. B., hereby disclaim all right to the office of 
for the of 

, in the county {or 
district) of , and all defence of any right I 

may have to the same. 

Dated day of , 19 . 

A.B." 

3 Edw. VII, c. 19, s. 240, amended. 
3&4Geo.V. 0.43,8.181(1). 

182. A person whose election is complained of, unless 
it is complained of on the ground of bribery or corrupt 
practices on his part, or a person whose seat is attacked 
on the ground that he has become disqualified or has for- 
feited his seat, may, within one week after service on him 
of the notice of motion, transmit by registered post, or 
deliver, if the proceedings are in the High Court, to the 
Clerk in Chambers, at Osgoode Hall, Toronto, or if the 
proceedings are in a County or District Court to the 
Judge of that Court, and to the relator or his solicitor, a 
disclaimer signed by him to the effect following : 

" I, A. B., upon whom a notice of motion in the nature 
of a quo warranto has been served for the purpose of 
contesting my right to the office of 
for the of , in the county {or 

district) of , hereby disclaim the said 

office and all defence of any right I may have to the^ same. 

Dated day of A.B. 



>! 



3 Edw. VII. c. 19, s. 238, amended. 
3 & 4 Geo. V. c. 43, s. 182. 

183. A person disclaiming sh^ll deliver a duplicate of 
his disclaimer to the clerk of the municipality, and the 
clerk shall forthwith communicate it to the council. 3 
Edw. VII. c. 19, s. 242, amended. 3 & 4 Geo. V. c. 43, s. 
183. 



EFFECT OF DISCLAIMER. 237 

184. — (1) A disclaimer in accordance with s. 181 or 
182 shall operate as a resignation. 3 Edw. VII. c. 19, s. 
241, last part. 

(2) A disclaimer in accordance with s. 181 shall 
relieve the person making it from all liability for costs. 
3 Edw. VII. c. 19, s. 241, first part. 

(3) Costs shall not be awarded against a person dis- 
claiming under s. 182, unless he consented to his nomin- 
ation or accepted the office. 3 Edw. VII. c. 19, s. 243, 
amended. 3 & 4 Geo. V. c. 43, s. 183 (1-3). 

Shall Operate as a Resignation. — ^A resignation of a member of 
council takes effect only with the consent of a majority of the members 
present. See 155 as to resignation of warden; see s. 154 (1). 

As a disclaimer has to be delivered to the clerk and by him forthwith 
communicated to council, it is arguable that the disclaimer, like a resigna- 
tion, cannot become effective without the consent of a majority of council. 

If the council refuses to consent, the Judge or Master may allow any 
person entitled to be a relator to intervene and defend under s. 172. 

Even if the council consented,, a person entitled to be a relator might 
be allowed to intervene, and defend under s. 172. There may be good 
reasons for proceeding, e.g., to have the disclaiming candidate found guilty 
of corrupt practices and disqualified under s. 180 (1), or to have the 
relator, if a candidate, disqualified. Section 180 (1). 

, It is submitted that the motion does not abate merely because the 
defendant has ceased to hold oflice even where bribery and corrupt prac- 
tices are not complained of, e.g., it may be necessary to ascertain whether 
lor not some other person was elected. 

Unless Jie Consented, to his Nomination.-^Tbere is no provision 
in the Act requiring a candidate to consent to his nomination, but under 
s. 69 (4), in an urban municipality every candidate has to file a declara- 
tion in form 2 or be deemed to have resigned. This is in effect consenting 
to nomination. No consent is required in township elections nor in elec- 
tions of wardens. 

Rules of Practice:- 

185. The Judges of the Supreme Court may make 
rules regulating the practice and procedure in relation to 
proceedings under this Part, including the costs of and 
incidental to them, and as to matters not provided for in 
it, or by Eules of Court, the practice and. procedure of 
the High Court shall be applicable. 3 Edw. VII. c. 19, 
s. 244, redrafted. 3 & 4 Geo. V. c. 43, s. 185. 

No rules have been made under the authority of this section or of 
the sections which preceded it since the repeal of all rules not embodied in 
the Act by Cons. Rule No. 2 of 1897. See also the Judicature Act, ss. 149 
and 150 of R. S. O. 1914, c. 56, and Holmested, 4th ed., p. 307. See 24 
D. L. R. 118 ; 33 0. L. R. 575. 



238 QDO WAHEANTO PEOCEEDINGS ABOLISHED FOE THIS PAET. 

186. Proceedings for the removal from office of a per- 
son whose election is alleged to have been undue or 
illegal, or who is alleged not to have been duly elected, 
whether or not the seat is claimed by or on behalf of the 
relator or any other person, and proceedings to have the 
right of a person to sit in a council determined shall be 
had and taken under the provisions of this Part and not 
by quo warranto proceedings or by an action in any 
court. 3 Edw. VII. c. 19, s. 244a, amended. 3 & 4 Geo. 
V. c. 43, s. 186. 

[Note. — Old s. 251, allowing certain penalties to he 
recovered in the Division Court, strucTc out, as it only 
applied to penalties none of which ivas over $50. Under 
the new s. 187 the penalty has been increased to $200 and 
six months' imprisonment.] 

[Note. — Old s. 256 providing that a prosecution for a 
corrupt practice must be commenced within 4 weeks after 
election, struck out so that Summary Convictions Act 
may apply, the limitation being 3 months.] 

The common law procedure, by an information in the nature of a writ 
, of quo warranto or by writ of quo warranto, which formerly might be 
instituted, is now by reason of s. 146 of the judicature Act, R. S. O. 
1914, c. 56, to be brought by notice of motion by -the Attorney-Cfeneral 
ex officio or at the instance of a relator in the name of His Majesty. 
This procedure should be followed in all municipal cases which are not 
provided for by Part IV, otf this Act. 

The prerogative writ of mandamus may bfe granted to compel a cor- 
poration to proceed to an election in a case where a seat is vacant, but a 
mandamus will not be granted where a person de facto holds the seat. 
Such a person must be ousted by proceedings under Part IV. It is said 
to be " an inflexible rule of corporation law that where an officer has been 
de faoto elected and has aceet)ted office and acted, this constitutes a case of^ 
plenarty unless the election be merely colorable. In such a case his title 
to the office is not to be tried by a mandamus. Per CSoleridge, J., in R. v. 
Chester Corporation, 25 L. J. Q. 61, and the party whose title is im- 
peached must be proceeded against by quo warranto, per Campbell, C.J., 
R. V. Chester Corporation, supra, and now in England, 587 of the Muni- 
cipal Corporations Act, 1882, 42 and 46 V. c. 50, prevldes that a mtinici- 
pal election shall not be questioned on any of certain specified grounds. 
Section 225 of the- same Act provides that an applicatiott for an iHformation 
In the nature of a quo warranto shall not be made after' twelve months 
from the time of disqualification. 

An action for an injunction to restrain a person from acting in a 
municipal office or for a declaration that he usurps the office or is dis- 
qualified, or for a mandamus requiring the corporation to hoM a new elec- 
tion on the ground that a person has forfeited his seat or was never en- 
titled to it, is not ail appropriate means of dealing with a case where a 
seat is de facto full. 

Under s. 152 a seat becomes vacant by crime, insolvency, absence, etc., 
and it is the duty of the Council f orth-Btith to declare the seat vacant, and 
s. 153 indicates that proceedings under Part IV. are not an alternate 
remedy. The cases within s. 152 are also within 186, in that they are 



INJUNCTION TO EESTRAIN FEOM ACTING DOBS NOT LIB. 239 

" proceedings to have the right of a person to sit in a council determined." 
and 186 provides that the only proceedings shall be under Part IV. This 
evidently means the only proceedings by which a seat can be declared 
vacant by a Court. Section 39 of the Municipal Corporations Act, 1882, 
45 and 46 V. c. 56 (Imp.), is similar in its terms to s. 152, supra. A 
meeting of the corporation of Southampton was called to declare vacant 
the seat of a certain alderman alleged to be bankrupt. Jessel, M.E., upon 
being satisfied that the alderman was not bankrupt, under the authority 
of s.-s. 8 of s. 25 of the Judicature Act, 1873, s.-s. 17 of the Judicature 
Act, R. S. O. 1914, c. 66, granted an injunction in an action restraining 
the persons threatening to remove the alderman : Oslatt v. Southampton, 
1880, 16 Ch. D. 143, 50 L. J. Ch. 31. The last mentioned case was con- 
sidered "by Street, J., in Chaplin v. Woodstock Public School Board, 1889, 
17 O. R. 728, in refusing an injunction restraining members from acting ; 
the board not having declared the seats vacant. Although the statute 
under consideration provided that the seat should ipso facto become vacant 
and that the remaining trustees should declare the seat vacant, the declara- 
tion not having been made the seats were held to be full, and quo war- 
ranto proceedings the only means by which they could be declared vacant by a 
Court : R. ex rel. Stewart v. Standish, 1884, 6 O. R. 408, was a case where 
the defendant was ousted where the board had declined to declare the 
seat vacant. 

An injunction restraining sitting members from acting would seem^to 
be at variance- with the authorities : Stephenson v. Yokes, 1896, 27 O. R. 
691, and the right to a seat at least on the ground that an election was 
invalid, cannot be raised properly on an application to quash a by-law : 
Re Vandyke v. Grimsby, 1906, 12 O. L. R. 211, contra, in the case of a 
disqualification arising after election : L'Abbe v. Blind River, 1904, 
7 O. L. R. 230. 

Summary. — It appears that an injunction may still be obtained in 
an action to prevent the council from declaring a seat vacant under s. 152, 
and that the right of a member of council to vote may be determined 
incidentally in an action. 



340 WHAT CONSTITUTES BBIBEET. 



PART V. 

Bribery and Corrupt Practices. 
187. — (1) Every person who : — 

(a) Directly or indirectly, himself or by any other 
person on his behalf, gives, lends or agrees to 
give or lend, or offers or promises any money or 
valuable consideration, or promises to procure, or 
to endeavour to procure any money or valuable 
consideration to or for any voter, or to or for any 
person on behalf of any voter, or to or for any 
person in order to induce any voter to vote, or 
refrain from voting or corruptly does any such 
act on account of any voter having voted or 
refrained from voting at an election; or 

(b) Directly or indirectly, himself or by any other 
person on his behalf, gives or procures, or agrees 
to give or procure, or offers or promises any 
office, place or employment, or promises to pro- 
cure or to endeavour to procure any office, place 
or employment to or for any voter, or to or for 
any other person in order to induce any voter to 
vote, or refrain from voting or corruptly does 
any such act on account of any voter having 
voted or refrained from voting at an election ; or 

(c) Directly or indirectly, himself or by any other 
person on his behalf, makes any such gift, loan, 
offer, promise, procurement or agreement, to or 
for any person, in order to induce such person to 
procure, or endeavour to procure the return of 
any candidate, or the vote of any voter, at an 
election, or — 

(d) Upon or in consequence of any such gift, loan, 
offer, promise, procurement or agreement, pro- 



WHAT CONSTITUTES BEIKBET, . 241 

cures or engages, promises or endeavours to pro- 
cure the return of any candidate, or the vote of 
any voter at an election ; or 

(e) Advances or pays, or causes to be paid, money to 
or to the use of any other person, with the intent 
that such money or any part of it shall be ex- 
pended in corrupt practices at an election, or who 
knowingly pays or causes to be paid money to 
any person in discharge or repayrnent of money 
wholly or in part expended in corrupt practices 
at an election ; or 

(/) Directly or indirectly, himself or by any other 
person on his behalf, on account of, and as pay- 
ment for voting or for having voted, or for 
illegally agreeing or having agreed to vote for 
any candidate at an election, or on account of, 
and as payment for having illegally assisted or 
agreed to assist any candidate at an election, 
applies to such candidate, or to his agent, for the 
gift or loan of any money or valuable consider- 
ation, or for the promise of the gift or loan of 
any money or valuable consideration, or for any 
office, place or employment, or the promise of any 
office, place or employment ; or 

{g) Before or during an election,, directly or in- 
directly, himself or by any other person on his 
behalf, receives, agrees or contracts for any 
money, gift, loan or valuable consideration, office, 
place or employment, for himself or any other 
person, for voting or agreeing to vote, or for re- 
fraining or agreeing to refrain from voting at 
an election ; or 

{h) After an election, directly or indirectly, himself 
or by any other person on his behalf, receives 
any money or valuable consideration for having 
voted or refrained from voting, or for having 

M.A. — 16 



242 WHAT CONSTITUTES BKIBEET. 

induced any other person to vote or refrain from 
voting at an election; or 

{i) In order to induce a person to allow himself to be 
nominated as a candidate, or to refrain from 
becoming a candidate, or to withdraw if he has 
become a candidate, gives or procures any office, 
place or employment, or agrees to give or pro- 
cure or offers or promises to procure, or endea- 
vours to procure any office, place or employment 
for such person, or for any other person, 

shall be guilty of bribery, shall be disqualified from 
voting at any election for two years, and shall incur a' 
penalty of $200, and shall also be liable to imprisonment 
for any term not exceeding six months. 8 Edw. VII. c. 3, 
s. 167, part. 3 & 4 Geo. V. e. 43, s. 187, part. 

Introduction. — The offences defined in Part V. of the Act require 
consideration for the purposes, (1) of prosecutions under s. 492, infra, 
and (2) for the purpose of imposing penalties in proceedings under Part 
IV. of the Act, and in addition, (3) the acts mentioned in the definitions 
in Part V. may expose the persons guilty of them, to criminal proceed- 
ings in certain cases. 

Prosecutions under Part V. — The offences referred to in this 
Part may expose the person guilty of them to prosecution when a charge 
is based on s. 187 or 189 before a Police Magistrate or two Justices of the 
Peace under the Ontario Summary Convictions Act. See ss. 492 (2), 
infra, and when a charge is based on s. 188, the procedure is governed 
entirely by the Ontario Summary Convictions Act. See s. 192 (1), infra. 
The penalties go to the corporation unless the charge is laid by a private 
prosecutor in which case one-half goes to him : Section 492 (3) . 

Proceedings under Part IV. — ^When the offences referred to in 
this part are committed by a candidate or by any person on his behalf, 
one vote is to be struck off the votes given for such candidate: Section 
173 (3), and a candidate elected who is found guilty forfeits his seat and 
becomes ineligible to be a candidate for two years : Section 180 (1) . 
These consequences can only arise if proof of offence is given in proceed- 
ings under Part IV. 

The same particularity in making a charge in such proceedings 
against a candidate for the purpose of disqualifying him, if elected, is not 
required as is necessary in ordinary penal actions. Particularity in in- 
formations in penal actions is required, according to Davies, J., in St. 
Ann's Election Case (Dom.), 1906, 37 S. C. R. p. 569, "to prevent a 
party sued from being put in peril twice for the same offence and 
to enable him to plead his prior conviction or acquittal or discharge, 
as the case may be, to any second action. Certainty in the particu- 
lars of the offence must therefore appear on the conviction or judg- 
ment. But in trials under ' the Controverted Elections Act ' (and it is 
submitted under Part IV. of the Municipal Act), while the party incrim- 
inated and sought to be punished is entitled on eV'cry principle of justice 
to have fuU and clear particulars given him of the offence he is charged 
with, and is also entitled to have the evidence confined to the charge so 
made, the same reason does not exist for the particular certainty in the 



BRIBERY AT COMMON LAW. 243 

statement of facts in the findings of the Election Court as does exist in a 
conviction or a judgment in a penal action. 

" There must, of course, be a reasonable certainty in the finding of 
the statutory offence and the different elements necessary to constitute 
the offence must be found by the Election Court. But in the case of the 
' Corrupt Act ' of Bribery, that fact may depend upon one proved case 
as well as upon one hundred, and the penalty of disqualification follows 
alike in the one case as the other. The offence may be proved and found, 
even though the name or names of the elector or electors bribed may not 
be able to be given. Several acts of personal bribery do not, for the 
purpose of personal disqualification, constitute different offences." In the 
St, Ann's case, the allegations in the election petition were that the 
respondent had himself given and procured to be given money and value 
to electors and others to induce them to favor his election and vote for 
him for the purpose of having such monies and value employed in corrupt 
practices, and these allegations were held to be sufiicient to cover the 
offence of personal corruption although the recipients of the monies were 
not named or known. 

Criminal Proceedings. — The Criminal Code does not deal with 
offences in respect of municipal elections, but on the other hand, offences 
under criminal law of England, as it stood respectively on the 17th day of 
September, 1792, on the 19th day of November, 1858, and on the 15th 
day of July, 1870, except as changed by proper authority, is the law in 
Ontario, British Columbia and Manitoba respectively. See Criminal Code, 
ss. 10, 11 and 12, and in Saskatchewan, Alberta and the Territories the 
date is the same as for Manitoba. 

Bribery is a misdemeanor at common law. " Wherever a person is 
bound by law to act without any view to his private emolument, and 
another by a corrupt contract engages such person, on condition of the 
payment or promise of money, or other lucrative consideration, to act 
in a manner in which he shall prescribe, both parties are by such 
contract guilty of bribery." " Wherever it is a crime to take, it is a 
crime to give. They are both reciprocal and in many cases, especially 
in bribery at elections to Parliament, the attempt is a crime ; it is 
complete on his side who offers it." (liord Mansfield in R. v. Vaughan, 
1769, 4 Burr. 2500). The offer of a bribe was always a misdemeanor on 
the principle that every attempt to commit a misdemeanor is itself a mis- 
demeanor: R. V. Schofield, Cald. 397. 

An information was granted on the deposition of two persons, for the 
offering of a bribe by the defendant at an election : R. v. Isherwood, 2 
Ld. Ken. 202. See Roscoe's Criminal Evidence, 10th ed., 343; R. v. 
Pitt, 3 Burr; R. v. Plympton, 2 Ld. fiay. 1377, and 4 A. & E., 2nd ed., 
P. 909. 

The Dominion Parliament has not made it a crime to do any of the 
acts forbidden by Part V., but the criminal character of bribery at any 
rate is clear at common law ; the common law not having proved adequate 
to check the evil of bribery, heavy penalties have been imposed by statute 
in England and other jurisdictions where the common law prevails. 

Treating. — The Ontario Municipal Act contains no provision deal- 
ing with treating such as is found in the Corrupt and Illegal Practices 
Prevention Act, 1883, 46 & 47 V. c. 51, s. 1 (Imp.), and is also to be 
found in s. 169 of the Ontario Election Act, R. S. O. 1914, c. 8, and in 
other Canadian Election Acts. The giving- by an election agent of drinks 
of whiskey to five or six persons regardless of their politics, some of 
whom were not voters and none of whom received a drink before they 
voted, was held to be not within s. 227 of the Elections Act, R. S. Sask. 
1909, c. 3 ; Hamm v. Bashford, 1916, 33 W. L. p. 473, 9 W. W. R. 1044. 
Treating not being specifically dealt with in Part V., must be done under 
circumstances which will bring the offence within s. 189 in order to make 
it illegal. 

It is doubtful if a drink of any kind could be considered valuable con- 
sideration or a gift within the meaning of the section. The same principle 
would apply to the giving of cigars or refreshments of any kind. Byfen 
if the giving of the drink or cigar is the giving of valuable consideration 



244 COKEUPT PKACTICE8 BY AGENT. 

within the meaning of s. 187, there is this fundamental difference between 
bribery and treating, that in bribery the essence of the offence is a corrupt 
contract or bargain, while in treating all the essential characteristics of a 
contract would have to be implied. Then it is to be noted that different 
considerations apply to treating because men treat as a matter of social 
custom but do not ordinarily give sums of money except pursuant to 
contract. 

Wills, J., in the Bodmin Case, 1 O'M. &, H. 122, refers to what he 
supposed was the reason for the introduction in the English Statute as to 
corrupt treating, as follows : — 

" It would seem to have been usual in former times, and no 
doubt was the practice, at least up to the year 1854, when the Cor- 
rupt Practices Act was passed, without any improper design upon the 
voters, and with a view to profusion, which some might dignify by 
the name of hospitality, to give every voter who came up pledged for 
a candidate at the election, or who voted for a candidate, refreshment, 
either by opening a common table at some inn, where the voters 
breakfasted before they went to the poll, or where they had refresh- 
ments before they left the town after polling, and before they returned 
to their homes. ... I cannot help thinking that that was the sort 
of corrupt practice with which — ^whether corrupt or hot — the Legis- 
lature was dealing in the 23rd section of the statute." > 

By any other Person on his Behalf — Agency. — Section 100, 
s.-s. 3, Municipal Corporations Act, 1882, 45 and 46 V. e. 50 (Imp.), 
provides that the rules and principles with regard to agency observed in 
the case of Parliamentary election petitions shall, subject to the pro- 
visions of the Act, be observed in the case of Municipal election petitions. 
The Parliamentary Elections Act, 1868, s. 26 (Imp.), in turn provides that 
the principles on which election committees had acted prior to the Act 
shaU be observed. There is no other express reference to agency. The 
Courts in England have therefore applied the principles of agency laid 
down by election committees. It is in the light of the principles so laid 
down that the expression " by any other person on his behalf," which also 
appears in the Imperial Acts, has been interpreted. The situation under 
the Ontario Act is somewhat different. The Act is silent as to agency, 
excepting for the phrase " by any other person on his behalf," in s. 187, 
and the phrase "by any person ,on his behalf," in s. 173. There is no 
provision making the principles laid down by Imperial election committees 
as to agency applicable and as a result it has been held in a series of cases 
ending with R. ex rel. Thornton v. Dewar, supra, but not without differ- 
ence of opinion, that a candidate must have personal knowledge of the 
corrupt acts in order to be found guilty or disqualified. In the recent 
ease of R. ex rel. Mitchell v. McKenzie, 1915, 33 O. L. R. 196, .the em- 
ployees of a company were held by the District Court Judge to have been 
the , agents of the respondent in committing illegal acts in connection with 
the election on the ground as stated, that " it is inconceivable that the 
respondent was not aware of these activities on the part of the power 
company and its . employees in his behalf, and he has not been called as a 
witness to give evidence as to any objection on his part as to their 
activities." On appeal, Sutherland, J., without discussing the authorities, 
said : " I have not been able, after a careful perusal of the evidence, to 
see that any of the alleged illegal acts were brought to the knowledge of 
the respondent. . . . I am of the opinion , that, in so far as the judgment 
disqualifies the respondent, it should be set aside." There would, therefore, 
appear to be a fundamental difference between agency under the Ontario 
Act and agency under the Imperial Act. In Ontario, the illegal acts con- 
templated must be brought to the knowledge of the candidate or other 
person who is charged with having committed them " by any other per- 
son." 

General F!romises. — In re Leahy and Lakefield, 1906, 8 O. W. B. 
743, Meredith C.J., refused to find that general promises made in con- 
nection with a local option campaign amounted to bribery within this 
section. The promises consisted in statements that a temperance hotel 
would be erected, that free stabling would be furnished, and that a free 



GENERAL TEBATING. 245 

reading room and games would be provided, saying : ' I do not know that 
it can be said even that what was done was ethically wrong, and I cer- 
tainly think it cannot be said it was bribery. There was no personal ad- 
vantage promised to any one." 

General Treating. — In re Grerow and Pickering, 1906, 12 O. 
L. R. 545, v., who termed himself a '"whiskey man," in order to " get 
even " with a local hotelkeeper and " put him out of business," attempted 
to procure the passage of a local option by-law by "treating" voters. 
Meredith, C.J., quashed the by-law, saying : 

" In dealing with this, case, I think I should apply, the same prin- 
ciple as is applied in Parliamentary election cases, where what is 
cjilled general bribery, bribery at common law, has been proved to 
have taken place. Where such bribery is proved to have taken place, 
although the candidate has had nothing to do with it, — the bribery 
may have come from unknown sources, as one of the cases says, — 
if it is of such a general character as to lead to the conclusion that 
there has not been a free expression of the will of the electors, then 
the election is to be avoided. 

" Now, I think that, having regard to the avowed purposes of this 
man, Vanstone, and the admissions which he has made, the proper 
conclusion is that he corrupted so widely that there could not have 
been a free and fair expression of the will of the electors. 

" The majority no doubt was large, but the means adopted to 
secure votes were upon a pretty large scale also, and they were used 
upon what may have been a large number of those who were entitled 
to vote." 

On appeal, the Divisional Court reversed the judgment. Falcon- 
bridge, C.J.K.B., on the ground that there was no condition of general 
drunkenness proven so as to produce obvious demoralization to an extent 
which might influence an election. Britton, J., said : 

" As to general bribery in the form of treating, it was not 
proved. 

" Treating of one man to influence his vote would affect the 
vote, but where general treating is relied upon, a very different state 
of things must be shewn. 

" Baron Martin, in the Bradford Case, 1 O'M. & H. at pp. 39, 
4 and 41, states what is necessary to establish the general charge. 
There was no such thing here as ' treating in all directions on purpose 
to influence voters.' 

"Mr. Justice Keogh, in the Drogheda Case, 1869, 1 O'M. & H. 
252, at p. 259, says : ' To put general intimidation upon a parallel 
with general bribery or general treating, it must be shewn to spread 
over such an extent of ground, and to permeate through the com- 
munity to such an extent that the tribunal considering the case is 
satisfied, if it be so, that freedom of election has ceased to exist in 
consequence." 

System of Corruption — Evidence of Previous Crime. — In Shel- 
burne and Queen's Election Case, 1906, 37 S. C. R. at 611, the bald proof 
of a single irregular and improper payment by the respondent made years 
before the alleged statutory offence being tried in that case, and having 
reference to another and a different election, and the prosecution sought 
to go into full details of the payment in order to shew a system. "This 
he was not allowed to do, the Court following and applying B. v. Bond, 
1906, 2 K. B. 389, 75 X,. J. K. B. 693. 

187 (o) and (6) make certain acts offences if done to induce a voter 
to vote or to refrain from voting, and make the same acts offences if done 
corruptly on account of a voter having voted or refrained from voting. 
This distinction does not appear in the subsequent definitions. It would 
therefore appear that if any of the acts mentioned in 187 (o) and (6) 
are done before the voter has voted, they constitute bribery, and the same 
act if done after he has voted is not bribery unless it is shewn to have been 
done corruptly : Rogers, 18th ed., vol. III., p. 368, citing Bradford, 1869, 



246 NECESSITY OE INTENTION TO COEEXJPT. 

1 O'M. & H. 36, and Limerick, 1869, iUd. 261. Ignorance or honesty of 
intention will not avail if the act is done before the voting. It is an 
element of the offence that the act must be done in order to induce the 
voter to vote or to refrain from voting. This , involves an intention on 
the part of the person offering the inducement, so that if an act does not 
proceed from such an intention to induce, the offence is not complete. 
Such an intention may be inferred v^here gifts are made by a candidate to 
one who at the time is exerting his influence on the candidate's behalf In 
the absence of any other explanation : K. ex rel. Johns v. Stewart, 1888, 
16 O. E. 583. This was a finding on a quo warranto summons and the 
defendant was held guilty of bribery and forfeited his seat. Street, J.,- 
held that the payments which had been made before the voting were 
" corruptly " made, probably meaning only that they were made to induce 
the recipients to vote. " Corruptly. " as used in s. 187 (o) and (6), which 
are identical with the provisions of the Corrupt Practices Prevention Act, 
1854, 17 and 18 V. c. 102 (Imp.), which is applicable to municipal elec- 
tions, has not been uniformly interpreted by the Courts in England. In 
Cooper- V. Slade, 1856, L. J. Q. B. at 329, Alderson, B., said: "We think 
the word ' corruptly ' has a definite meaning. If, for instance, there had 
been a previous unlawful promise conditional on the voter voting, or if 
.there had been a previous understanding to that effect, or a corrupt bar- 
gain for the future, we think the case would have been within the 
statute. But we are clearly of opinion that merely paying travelling 
expenses honestly, with no previous engagement, is not prohibited." And 
the same view was taken in Stroud Election Case, 1874, 2 O'M. & H. 
184. On the other hand, Lush, J., in the Horwich Election Cose, 3 O'M. 
& H. p. 71, held " the payment of money as a reward for having voted, 
is corrupt in itself ; it tends to destroy the independence of the voter and 
is demoralizing in its influence on all the parties concerned." If the 
former view is correct, the payment after voting pursuant to prearrange- 
ment is within the first part of the section in that it is on " agreeing to 
give," " a promising to give," and the latter part of the section is 
redundant. If on the other hand the view of Lush, J., is correct, the 
latter part of the section treats a new and substantial offence of giving, 
etc., money to a voter on account of his having voted or refrained from 
voting. The latter interpretation of the section seems to render the word 
"corruptly" almost redundant. Its use, however, in s. 187 (lo) and (16), 
is to he compared with its use in the sections of the Imperial Act dealing 
with treating, e.g. : " Every elector who corruptly accepts or takes any 
such meat, drink, entertainment or provision shall also be guilty of treat- 
ing." It has been repeatedly held that " corruptly " in the treating sec- 
tions does not mean wickedly or immorally or dishonestly, but with the 
object and intention of doing that which the law forbids. It means the 
intentional infringement of the law. 

Fayments to Scrutineers and Canvassers. — The authorities have 
been carefully reviewed by RiddeU, J., in B. ex rel. Fitzgerald v. Staple- 
ford, 1913, 29 O. L. R. 133, as foUows :— 

" The first case is that of one Bryson. He was a voter Who 
had not been taking very much interest in the election — he had on 
previous occasions acted as scrutineer for Stapleford and had been, 
paid for it. The morning of the election Stapleford asked him to act 
as scrutineer for him at No. 2, and he did so. Both parties say that 
of course he was to be paid — ^that, from the general course of dealing 
in this village, Bryson, being engaged as a scrutineer, was entitled to 
be paid. Nothing was said about payment; but this is of no im-. 
portance : R. ex- rel. Sabourin v. Berthiaume, 1913, 4 O. W. N. 1201, 
is well decided and Should be followed. Two or three days after the 
election, Stapleford paid Bryson $2 ' for scrutineer,' ' for acting as 
scrutineer.' Bryson voted at the election ; and Stapleford knew that 
he had a vote when he asked him to act as scrutineer, which was 
about the time the poll opened — close to 9 o'clock. He was not given 
a voters' list, but had to go down to the clerk's oflice afterwards and 
get one. 

" The section of the statute referred to in support of the applica- 
tion is s. 245 (2) : ' Every person who . . . makes any . . • 



PAYMENT TO SCKUTINEBRS AND CANVASSERS. 347 

promise or agreement' to pay ' any person in order to induce such 
person to . . . endeavour to procure . . . the return of any 
person to serve in any municipal council . . . shall be deemed 
guilty of bribery.' (Now 187 (Ic). 

" That the respondent did promise and agree to pay Bryson for 
acting as scrutineer is undoubted; and the only question is whether 
this was done ' in order to induce ' Bryson ' to endeavour to procure 
his return. 

" Had it not been for recent legislation, I should have held, with- 
out much hesitation, that the payments of scrutineers, or the engage- 
ment of them on an agreement,' express or implied, to pay them, is in 
itself a corrupt practice. They are put at the poll to watch; and, 
while it is said not always to be the case that an elector votes as he 
prays, it must generally be that an elector will vote as he watches. 

" In the Bewdley Case, 1869, 1 O'M. & H. 16, Mr. Justice Black- 
burn, at p. 20 considers the effect of treating 'watchers,' and says: 
' In the first place, it indirectly influences the men, whether voters or 
not; if they are not voters, it indirectly influences all their friends 
and other voters. In the second place, when it is given to voters, it 
would, in all human probability, lead to an expenditure by them in 
public houses and elsewhere, which would indirectly influence voters.' 
The learned Judge accordingly held this to be a corrupt practice. 

" The difference in customs of the two countries renders inappli- 
cable much of the learned Judge's second reason — ^it is not the custom 
in Ontario, as it seems to be thought to be in England, that a labour- 
ing man, as of course, spends in a public house money paid to him. 
But in the first reason I entirely agree ; and it would be carrying 
judicial nescience to an absurd extreme to affect not to know that 
the hiring of a man to represent one at the polls implies that man 
doing all he can for his employer, including casting his vote, if he has 
one. A scrutineer who would act otherwise would be thought a 
' mighty mean man.' 

" This case was approved in our own Supreme Court in Cimon 
v. Perrault, 1881, 5 S. C. 'R. 133; see p. 145; the Nottingham Case, 
1869, 1 O'M. & H. 246, may also be looked at. 

" Whether a payment to one as a canvasser is a corrupt prac- 
tice under the Election Acts has been the subject of many decisions. 
In R. ex rel. Johns v. Stewart, 1888, 16 O. R. 583, Mr. Justice Street 
held that the payment to members of certain committees of the level 
sum of $2 each, irrespective of the time they devoted to the work and 
without inquiry as to whether they had in fact worked at all, was a 
corrupt act under the Municipal Act, R. S. O. 1887, c. 184, s. 109 (2), 
corresponding to the present s. 245 (2) . 

" In the East Toronto Case, 1871, H. E. C. 70, the West Toronto 
Case, 1871, H. E. C. 97, the Lennox Case, 1884, 1 Ont. Elec. Cas. 41, 
it was held no violation of the Act to. employ voters as canvassers. The 
judgment of Mr. Justice Armour to the contrary in the North Ontario ' 
Case, 1879, H. E. C. 785, 801, while it was approved in the Supreme 
Court, 1880, 4 S. C. R. 430, by Taschereau and Gwynne, JJ., failed 
to obtain the approval of this majority. If I may be allowed to say 
so, this decision has ever been a matter of regret ; no one at all 
familiar with election methods can fail to know the danger of paying 
voters for services, real or alleged, as canvassers. These decisions 
prevent me from holding that a payment to a voter who is for such 
payment to endeavour to effect the election of his employer is necessarily 
corrupt. 

" The cases do not cover the position of a scrutineer, and I should 
have had no difficulty in following my own judgment in the absence of 
express authority. But it seems to me that the Legislature has indi- 
cated a different view. 

"In the Act of 1903, 3 Edw. VII., c. 19. s. 179 (2), the clerk 
of the municipality is prohibited from voting; but (3) all deputy 
returning ofiicers and poll clerks are entitled to vote. An amendment 
was passed in 1905, 5 Edw. VII., c. 22, s. 8, which adds s.-s. (4) : 
'No person employed and paid by a candid.ate to act as scrutineer, or 
for any other purpose in connection with municipal elections, shall 



348 PAYMENT OF REASONABLE ELECTION EXPENSES. 

be entitled to vote at such election.' (Now s. 61). There is no sec- 
tion invalidating the election in consequence of such a person voting — 
and it seems clear that the Legislature recognized the innocence of a 
hiring and paying by a candidate of a voter as scrutineer, but put 
him in the same category as the clerk. The Legislature has said in 
effect : ' You may hire and pay a scrutineer ; but that scrutineer shall 
not vote.' Nothing would have been ea,sier than to declare the paying 
of a voter as scrutineer, a corrupt act, but this is not done. 

" I do not find anything to indicate that Bryson was not in good 
faith paid simply as a scrutineer, and, while I may be permitted to say 
that I regret the result of the legislation, I think that it clears this 
act of the implication that it is a corrupt practice." 

Apparently corroboration is required whete the recipient of the bribe 
is directly contradicted by the giver: Carey v. Smith, 1903, 5 O. L. R. 
at 211. 

Shall Incur a Penalty^— Section 159 (2) of the Election Act, 
provided : 

" Every person so offending shall, on conviction, incur a penalty 
of $200 and shall also be imprisoned for a term of six months with 
or without hard labor." 

As this subsection stood in the Election Act of 1892, s