liable. The words are, "every returning officer, presiding officer, and clerk who is guilty," &c. By sect. 9, however, "If any person misconducts himself in the polling station, or fails to obey the lawful orders of the presiding officer, he may immediately, by order of the presiding officer, be removed," &c. The candidate is included in this, if he may be and is present. Having thus far considered the places prepared for, and the persons who may take part in, the polling, and the ascertaining and declaring its result, we must now consider what things may be done in such places, and in whose presence such things may be done. Rule 8 enacts what is to be done at the place of election or nomination, and in whose presence :"The candidate, &c., and his proposer and seconder, and one other person selected by the candidate, and no other person other than aforesaid, shall, except for the purpose of assisting the returning officer, be entitled to attend," &c. Here, where the candidate is to attend, he is expressly mentioned. Sect. 4 describes persons who may be present at a polling station. The candidate, as has been pointed out, is not mentioned in the section, though he may be included in some part of it. Rule 21 is an excluding rule: "The returning officer shall appoint a presiding officer to preside at each station, and the officer so appointed shall keep order at his station, shall regulate the number of electors to be admitted at a time, and shall exclude all other persons except the clerks, the agents of the candidates, and the constables on duty." This, if it stood alone, or if it did not by reason of other enactments require necessarily a limitation, would clearly exclude the candidate. But it will be seen that some words, at all events, of limitation must be introduced. The question will be what words. Turning next to what is to be done at the place of counting the votes,-by sect. 2 "the counting is to be in the presence of such agents, if any, of the candidates as may be in attendance." Those are the agents appointed under rule 31. By rule 33, "the returning officer, his assistants and clerks, and the agents of the candidates, and no other person, except with the sanction of the returning officer, may be present at the counting of the votes." This rule, again, if words of limitation were not necessary to be added to it, would clearly exclude the candidate. But here, too, it will be seen that some words of limitation must be added. Before, however, coming to the material and difficult rule which we must interpret, we must notice rule 26. By that rule (r. 26), “The presiding officer, on the application of any voter who is incapacitated by blindness or other physical cause from voting in manner prescribed, &c., or of any voter who makes such a declaration as hereinafter mentioned that he is unable to read, shall, in the presence of the agents of the candidates, cause the vote of such voter to be marked on a ballot-paper in manner directed by such voter," &c. It is obvious that, if the candidate be present during this operation, he will know whether such voter votes for or against him. It seems insufficient to say that the candidate, if he disclosed his knowledge to anyone else, as, for example, to the voter's employer, might incur a penalty under sect. 4. If the voter were under his own influence, he might act on his own knowledge without any disclosure to anyone, and therefore without any penalty. If,

[C. P.

therefore, there were not circumstances under which by clear enactment in this statute this mischief must arise by reason of the candidate's presence, the existence of this section would give strong ground for excluding a candidate from a polling station. Everything hitherto considered, indeed, seems to be against the right of the candidate to be present except at the nomination; and in that case his presence is admitted by express affirmative words. But now we come to rule 51, which deals expressly with the candidate and with his right to be present. The very question of his presence is before the Legislature. By rule 51, "A candidate may himself undertake the duties which any agent of his, if appointed, might have undertaken, or may assist his agent in the performance of such duties, and may be present at any place at which his agent may, in pursuance of this Act, attend." The duties here mentioned are the duties of the personation agent at the polling station, and of the agent appointed to attend at the counting of the votes. The candidate may, then, under certain circumstances at all events, be present in the polling station and at the place of counting. In certain circumstances, then, he may be present without making any statutory declaration. In certain circumstances, he may be present whilst the returning officer is taking the direction of a voter under rule 26. The mischiefs pointed out if the presence of the candidate be allowed, and which seemed to be reasons for disallowing his presence, do not, under certain circumstances, prevent his presence from being allowed. And it is now obvious that some words, at all events, must be added to the exceptions in rules 21 and 33; you must at least add tho words," and the candidates, if they undertake the duties, &c., or if they desire to assist their agents." Unless words be added in rule 51, the phraseology admits the candidate, as such, to the polling stations and the place of counting the votes. Unless in the last phrase of the rule you add the words "for such purposes," that last phrase of the rule admits the candidate, as such, to any place at which his agent may attend, that is to say, to the polling stations and the place for counting the votes. If the section be considered by itself, the first matter to be determined is. what is the meaning in it of the word “undertakes." "A candidate may himself undertake the duties," &c. That may mean that the candidate may engage that he will fulfil, or declare that it is his intention to fulfil the duties, that he may fulfil or begin to fulfil the duties. If it means the first, the sentence, so far, does not enable the candidate to be present in the polling station; then the last sentence of the section is required to complete the idea of enabling the candidate, not only to engage to fulfil, but also to fulfil, the duties. The second part, however, is,-" or may assist his agent in the performance of such duties." Now, the candidate cannot assist without being present. That part of the section, therefore, carries with it necessarily the presence of the candidate. But it is coupled with the former part by the conjunction or." And the third part, if it is to be read with one of the former parts so as to make it complete, should, according to ordinary rules of grammar, be read also with the other. It cannot be read with the second as part of it, without manifest tautology; and yet, if it be read with the first, it must also be read with

the second. It must be treated, if the suggested words of limitation be added to it, as tautologous, and if the suggested words be not added, it must be treated as enabling something separate and additional. If the latter, it gives to the candidate the right which is claimed for him, of being present as such in any polling station and at the place of counting the votes. Whichever way this rule be read, words must be added to rules 21 and 33. The final question then is, whether words should be also added to this rule 51. Nothing can be more difficult to determine. If the candidate has this absolute right, it is a useless and barren right to him, unless it be that it will give him the power of dealing with a servant or tenant of his own, either for not coming to vote at all, or, if the servant or tenant be illiterate, or blind, or unable from physical defect to make a mark, for voting against him. Can it be that the words are to be construed so as to give him such a barren and useless or mischievous right, when all the other provisions of the statute seem to ignore or militate against such a right? With much distrust, I come to the conclusion that, whatever the real intention may have been, our daty is to stand by the ordinary and grammatical construction of the last sentence in the rule, as there is no overwhelming ground for otherwise interpreting it. This is the rule of construction which this court has before declared must be rigidly applied to statutes of this kind. Although there are strong grounds to be collected from the consideration of other parts of the statute and its schedules, for suspecting that the intention was to give only a limited right to the candidate of being present as such, at the polling stations and at the place for counting the votes, still there is nothing to make it sufficiently certain that the words ought not to be construed according to their ordinary and grammatical signification: and then they signify that the candidate may, as such, be present at any polling station, and at the place of counting the votes. The word candidates" is the word which must be read into the exceptions in rules 21 and 33. Nothing must be read into this rule 51. All the above reasoning has been applied to a Parliamentary contested election. It was not argued that there is a difference in this matter in a municipal contest election. What is the exact effect of subsect. 6 of sect. 20, we are not at present called upon to say. I am of opinion that the rule must be made absolute. I think it right to add that Sir Henry Keating, who heard the argument, has read this judgment, and expressed his entire concurrence in it. (a)

66

DENMAN, J.-I should have been perfectly content in this case to say that I entirely agree with my brother Brett's judgment; but, inasmuch as this is a case of first impression, and also a case of some importance, and inasmuch as at the trial I ruled the other way, I think it is desirable that I should read the judgment which I have prepared, to show the way in which my mind was brought round to agree in the result at which my brothers Brett and Keating have arrived. This was an action brought by the plaintiff for an assault in causing him to be removed from a polling station during a municipal election at Ashton-under-Lyne. The plaintiff was a candidate at the election; and

(a) The learned judge had resigned at the end of Hilary Term.

[C. P.

The

the defendant was the returning officer. Several pleas were pleaded; but the only one relied upon on the argument of the rule was one added at the trial, raising a defence under the Ballot Act (35 & 36 Vict. c. 33, s. 9), which authorises the removal from the polling-station, by a constable, of any person who fails to obey the lawful orders of the presiding officer. It appeared upon the trial before me, that, on the morning in question, the plaintiff went to one of the polling booths to make certain inquiries of the presiding officer. polling booth was one of several stations placed in different parts of a school, and was called booth No. 2. While the plaintiff was inquiring for the presiding officer, the returning officer came into the booth No. 2, and inquired if he was a voter. A conversation then took place, the details of which are unimportant, inasmuch as it was admitted upon the argument that in substance it amounted to a claim on the part of the plaintiff of the right to remain in the booth at his discretion-such claim being founded upon the concluding words of the 51st clause of the schedule to the above Act; and a claim on the part of the returning officer, founded upon clause 21 of the schedule, of a right to exclude him from the booth, in the absence of any claim on his part, to remain there for any of the purposes mentioned in the earlier part of clause 51. At the trial, I entered the verdict for the defendant, with leave to the plaintiff to move to enter a verdict with 408. and certificates, if the verdict ought so to be entered. The case entirely turns upon the proper construction to be placed upon the two clauses of the schedule, 21 and 51. Clause 21 enacts as follows:-"The returning officer shall appoint a presiding officer to preside at each station, and the officer so appointed shall keep order at his station, shall regulate the number of electors to be admitted at a time, and shall exclude all other persons except the clerks, the agents of the candidates, and the constables on duty." Clause 51 is as follows:-"A candidate may himself undertake the duties which any agent of his if appointed might have undertaken, or may assist his agent in the performance of such duties, and may be present at any place at which his agent may in pursuance of this Act attend." It is important to bear in mind that by clause 57 it is provided that the expression "agents of the candidates" used in relation to a polling station means agents appointed in pursuance of sect. 85 of 6 & 7 Vict. c. 18. The agents appointed under sect. 85 of the last-mentioned Act were agents "for the more effectual detection of the personation of voters." They were to be nominated before the time fixed for the poll; and notice of their appointment was to be given to the returning officer: and the section goes on to provide that "thereupon it shall be lawful for every such agent to attend during the time of polling at the booth or booths for which he shall have been so appointed." Though the present was the case of a municipal election, I think that the agents appointed by the candidate are personation agents," having precisely the same duties as those appointed in the case of a Parliamentary election. In support of the plaintiff's right to recover, it was urged that the concluding words of clause 51 of the schedule give the candidates an absolute right to be present; that, looking at the earlier part of the clause, it would be unreasonable to

C. P.]

restrict that right to cases in which their minds have been made up to undertake the duties of agents themselves, as they ought to have an opportunity of judging how their agents are performing their duties at the several stations; that, looking to the nature of the duty of assisting an agent, which is reserved to them by clause 51 of the schedule, it consists merely of being present and observing the voters, and it would be absurd to suppose that the Legislature intended that the right of the candidate to be present should depend upon his answering the returning officer's inquiry as to whether he was there to assist his agent or not. Moreover, it was argued that, inasmuch as the candidate must necessarily be present in the station in order to discharge either of the duties expressly authorised by the earlier part of clause 51, the latter words would have been unmeaning and inoperative if only intended to give him a right to be present in those cases. On the other hand, the strong and imperative words of clause 21 were relied upon by the defendant, and it was contended that they were sufficient to entitle the defendant to a verdict; that the latter part of clause 51 must be read as merely empowering the candidate, for the purposes mentioned in the earlier part of the clause, to be present in a place from which he in common with all others was required to be excluded by the presiding officer under the words of clause 21; that the great object of the Act was to maintain secrecy of voting, which would be pro tanto impaired by allowing the candidate to enter each polling station and remain there at his discretion, and thereby to exercise more or less moral influence over the voters, especially the illiterate portion of them; that the returning officer ought at all events to have a discretionary power of removing any persons who were not present under some express provision of the Act for purposes connected with some duty or business; and that therefore, inasmuch as the plaintiff admitted that he was there claiming a discretionary right to be there, and not professing to be in the discharge of any duty or business, the defendant had a right to order him to leave the booth, and, upon his refusal, to cause him to be removed, under sect. 9 of the Act and clause 21 of the schedule. Upon a full consideration of these arguments and of the various provisions of the Act, I have come to the conclusion that the plaintiff is entitled to have the verdict entered for him according to the leave reserved. The words of clause 21 are undoubtedly strong and unqualified, except so far as they are modified by the exceptions contained in the clause itself; but one of those exceptions is "the agents of candidates," who by clause 57 are defined to be the personation agents appointed under sect. 85 of 6 & 7 Vict. c. 18. These agents are persons whose duties under the 35 & 36 Vict. c. 33 can only be discharged by means of their presence in the polling station, and by their observing there the persons who come to vote, and forming a judgment as to whether they are persons really on the register or not. Their right to be present in the booth, which was secured by the concluding words of sect. 85 of 6 & 7 Vict. c. 18, is preserved by one of the exceptions in clause 21. That right I consider to have been absolute as regards the booth to which they were appointed. Then, is the right given to the candidate by clause 51 less absolute? I cannot see that it is. The words of the clause are i

[Ex. CH.

unlimited; and it would require the insertion of other words, such as, "for that purpose," or "for either of the purposes aforesaid "-in order to restrict their application to the two special purposes mentioned in the earlier part of the clause. This I do not feel at liberty to do, from a mere suspicion, however strong, that it might have been the intention of the Legislature that the right of the candidate should be so restricted. It may be argued that in order to put this construction upon clause 51, it is necessary to import the word "candidates" into the exceptive words in clause 21. Strictly speaking, this is so; but difficulties such as these unfortunately occur daily in the construction of Acts of Parliament; and the true solution of that which exists in the present case appears to me to be, that it is far more probable that the case of the candidate, and his powers, was not present to the mind of the draughtsman when he drew the exceptions in clause 21, than that he should have used such large words as those in clause 51 intending at the time that they should be restricted, as contended for by the defendant. I think, therefore, that the very large words of clause 21 must be held to be qualified by the equally large words at the conclusion of clause 51, and that the candidate at an election has a right to be present in the polling booths, without being called upon to assign any reason as to the cause of his presence. This, of course, will not justify any misconduct on his part when in the station, for which he might be removed under sect. 9. I think that the rule should be made absolute. Rule absolute

Attorney for plaintiff: E. Worthington, for Sale, Shipman, Seddon, and Sale.

Attorneys for defendant: Johnson and Weatheralls, for George Hadfield, jun., Manchester.

EXCHEQUER CHAMBER.

APPEAL FROM THE COURT OF EXCHEQUER. Reported by H. LEIGH, Esq., Barrister-at-Law.

Dec. 1 an 12. (Before Lord COLERIDGE, C.J., and KEATING, LUSH, QUAIN, and ARCHIBALD, JJ.) BAXENDALE AND OTHERS V. THE LONDON, CHATHAM, AND DOVER RAILWAY COMPANY. Carriers-Breach of contract to carry-Damages— Measure of Plaintiffs' costs of defending an action arising out of acts of defendants-Reco- Remotenessvery of, in subsequent action Proximate and natural damage—Separate and independent contracts — Carriers' Act-Defence under.

The plaintiffs having, as carriers, contracted with

H. for the carriage of certain pictures of his from London to Paris, ffected a separate and independent contract with the defendant railway company for the carriage of the pictures by the latter as far as Calais; and, in the course of transit from London to Calais, the pictures were, by the negligence of defendants' servants, dropped into the sea at Dover and greatly injured. To recover compensation for such injury H. sued the plaintiffs, claiming 10001. damages, and therefore the plaintiffs gave notice to the defendants, and called on them to come in and defend the action, which the defendants, repudiating all liability,

Ex. CH.]

carriers are exempt from liability for the damage referred to."

9 to 12.-On the 9th Dec. 1871, an action was brought by the said Harding against Messrs. Baxendale, the now plaintiffs, to recover damages alleged by him to have been done to the pictures, whereupon the now plaintiffs gave notice thereof to the present defendants (the said company) by letter of the 12th Dec. in the following terms: A writ has now been issued. Will you kindly inform us whether you will defend by your own solicitor, or if you wish us to do so on your account? It would be a great mistake to have two actions, one against us and the other against you." To which, on the 15th Dec., the solicitor for the defendant railway company replied as follows: "I beg to say that I am unable, on the part of this company, to give you any instructions, but must leave you to deal with the case as you think fit. I am not aware whether, when the case of pictures was delivered to you for carriage, a declaration was made and insurance paid; but this company received it only as an ordinary parcel."

13. The declaration in Harding's action against Messrs. Baxendale (the now plaintiffs) was delivered on the 8th Jan. 1872 (a copy of it is set out in extenso in this paragraph of the case), and by it the plaintiff claimed 10001. damages.

14. The attorneys of Messrs. Baxendale sent a copy of this declaration to the solicitor of the defendant railway company, with a letter as follows: "We enclose a copy of the declaration in the action brought by Mr. Harding against our clients, Messrs. Pickford and Co., and we beg to repeat the offer which Messrs. Pickford and Co. have already made, to allow them to undertake the defence of the action on behalf of the company on whom the loss must fall if the plaintiffs should be held to be entitled to recover; or if the company decline to do that, we invite them, through you, to make any suggestion as to the defence which should be raised. We beg to add that the defendants (the present plaintiffs, Baxendale and Co.) will hold your clients responsible for the damages which the plaintiff" (Harding) "may be held entitled to recover, as well as for the costs which the defendants may incur to the plaintiff, and to their own solicitors, in defending the action."

15. The railway company's attorney replied to that letter on the 16th Jan. 1872, as follows: "The breach of duty on the part of your clients in their character of 'forwarding agents,' upon which it would appear the plaintiff relies, is nothing which affects this company so as to render it liable to your clients; and I cannot, therefore, undertake to offer any suggestions as to the defence of this action. The relative positions of the company and your clients in the matter are, I apprehend, clear. Your clients were, and in the consignment note are, described as the senders of the case of pictures, and the company, as carriers, will of course, if necessary, avail themselves of the provisions of the Carriers' Act."

16. Messrs. Baxendale entered an appearance in Harding's action against them, and pleaded the general issue; and an order was obtained by consent, dated the 14th Feb. 1872, making available under such plea any defences of which the particulars were delivered in a week, and accordingly the following particulars of such defences were delivered. First, that the plaintiff did not deliver nor the defendant receive the goods as carriers on

[Ex. CH.

the terms alleged; secondly, that the defendants received the goods only as forwarding agents; thirdly, that the defendants were protected by the provisions of the Carriers' Act; fourthly, that so long as the goods were in the defendants' care and possession they were safely carried; fifthly, that at the time of the alleged injury to the goods the defendants' responsibility had ceased.

17. On the 13th Jan. 1872, the plaintiffs consulted counsel as to their defence to Harding's action; they themselves being under the impression that they had a defence thereto on the ground that the pictures were not delivered to or received by them as common carriers, but merely as forwarding agents, and that they had a notice posted up at all their receiving houses that they would not be responsible for damage to goods beyond the limits of their conveyance; and also that, although the foreign consignment note contained a declaration of value, it was only for the requirements of the Customs Act and not as a declaration of value under the Carriers' Act, especially having regard to the course of dealing between Pickford and Co., and Robinson and Co., the agents for Harding in previous cases; and, further, that the accident happened from a peril of the sea which was under taken by the plaintiffs themselves.

18. On the 27th April the opinion of counsel was given to the plaintffs during the progress of Harding's action against them; and such opinion (which is set out at length in this paragraph of the Case) was, in substance, to the effect that, though the question was not free from doubt, their being only forwarding agents could not be successfully relied on as a defence by the now plaintiffs, as they had agreed with Robinson and Co. to forward the goods to, and to deliver them in Paris, for which they had made one entire charge, and as between themselves and the railway company had treated themselves as the consignors, and that, upon the facts, they had agreed to forward the goods to Paris, and had not protected themselves against any contingency whatever, and were responsible for non-delivery, even though they had not been guilty of actual negligence. But that it by no means followed that, because Harding might succeed against them, they would have any remedy against the railway company, for the reason that the bargain between them (the now plaintiffs) and Harding, was upon different terms to those of the bargain between them and the railway company; and that the railway company might probably, under their 4th special condition, escape liability upon the ground of the goods being more than usually hazardous, and no extra payment having been made for their carriage; the company being also protected by their 18th condition against liability in the absence of actual negli

gence.

The now plaintiffs, however, continued to defend Harding's action, and a part of the brief and expenses related solely to the special defences set up in the particulars. The present defendants allege, but the now plaintiffs deny, that such increase of costs was substantial. The remainder of the briefs and expenses related solely to the value of the pictures.

19 and 20. On receiving notice of trial in Harding's action, the attorneys of the plaintiffs wrote to the attorney of the railway company, on the 28th May 1872, informing them thereof, and repeating the intimation that their clients would