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therein the business of a cheesemonger or pork butcher; and the defendant says that the said agreement was by mistake so framed and expressed in such language as to include by general words within the scope and operation thereof the carrying on of the said business in and upon the said house and shop which is the alleged breach of agreement to which this plea is pleaded and the real and true agreement made between the plaintiff and the defendant was in all respects performed and fulfilled between the said parties thereto, and was always understood and acted upon by them respectively, as not intended to prevent the defendant from allowing the said business to be carried on, in, and upon the said house and shop.

Demurrer and joinder.

Glyn, for the plaintiff.-The plea is bad, for this court has no means of reforming the contract. A court of equity would only assist in such a case as this by adding words to the contract, and that would not be done unless on the very strongest

evidence that a mistake had been made. This is not a case in which a court of equity would grant an unconditional injunction. In Percy v. Oleaga (11 Ex. at p. 512) Alderson, B. says "If the defendants have equitable ground for reforming the contract, they should apply to a court of equity." The only exception to the application of this principle is where the agreement is wholly executed, as in Steele v. Haddock (10 Ex. 643), but that is not the case here. The Solvency Mutual Guarantee Company v. Freeman (31 L. J. 197, Ex.) is also an authority against this plea. [QUAIN, J. referred to Borrowman v. Rossel, 16 C. B., N. S., 658.] If there is anything which ought to be done by the defendant which would be a condition precedent to an injunction being granted by a court of equity, he cannot obtain equitable relief in this court: (Drain v. Harvey, 25 L. J. 81, C. P.; Mines Royal Society v. Magnay, 10 Ex. 489.) [QUAIN, J.-What terms could be imposed here ?] This is a mere omission, and not such a mistake as would induce a court of equity to grant an injunction.

Parker v. Gaswell, 2 De G. & J. 559. Lord, for the defendant, was not called on. MELLOR, J.-It is clear that a court of equity would make an end of the case, and would do what would decide the whole matter, that is, grant an unconditional injunction. There is no condition which the court could be called on to impose. The equitable plea is, therefore, a good defence to this

action.

QUAIN, J,-I am of the same opinion. The rule is well established that where a court of equity would grant an unconditional injunction an equitable defence may be pleaded at law, and I fail to see what condition could be imposed here. It is a case of a mistake like Borrowman v. Rossell (ubi sup.) and Wake v. Harrop (1 H. & C. 202; 31 L. J. 451, Ex.). If there were words in the agreement which would give it the effect stated in the plea, the defendant would be discharged absolutely. A court of equity in this case would have nothing to do but grant an unconditional injunction.

Judgment for the defendant. Attorneys for the plaintiff, Knox and Mould. Attorneys for the defendant, Bell and Crowder.

Monday, May 31.

[Q. B.

RALPH (app.) v. HURRELL (resp.). Malicious injury-Ownership of property-Variance-Jervis's Act (11 & 12 Vict. c. 43), s. 1. In an information for malicious injury to property under 24 & 25 Vict. c. 97, s. 52 where the ownership is laid in several persons, and it appears that only one of these is the legal owner, the justices ought not to dismiss the information, but ought to hear the case, or, if they think the variance likely to mislead, to adjourn the hearing.

CASE stated by justices under 20 & 21 Vict. c. 43.

An information was laid by the appellant, who was the manager of a club, against the respondent under 24 & 25 Vict. c. 97, s. 52, for wilfully and maliciously damaging a lamp fixed to the clubhouse. The property was laid in Edward Hammond Bentall, Stephen Clarke, and Frank Anderson, who were the trustees of the club. The appellant did not himself see the act done, but it was proved by other evidence to have been done by the respondent. Edward Hammond Bentall, being the lessee of the house, which he was anxious should be used as a club-house, had entered into a declaration of trust, made between himself of the one part, and Stephen Clarke and Frank Anderson (therein called the trustees) of the other part, whereby he declared that he would stand possessed of the house upon trust for the trustees for the time being. This declaration of trust was put in evidence on behalf of the prosecution. The justices were of opinion that the evidence did not sufficiently show that the appellant had the charge or custody of the lamp, and that the evidence given was not sufficient to show that the trustees were the owners of the lamp, or whether Mr. Bentall was not solely the owner thereof. They, therefore, dismissed the in

formation.

By 24 & 25 Vict. c. 97, s. 52, "Whosoever shall

wilfully or maliciously commit any damage, injury, or spoil to or upon any real or personal property whatsoever, either of a public or private nature, for which no punishment is hereinbefore provided, shall, on conviction thereof before a justice of the peace," be imprisoned with or without hard labour for not more than two months, or be fined not more than 51., and also pay a further sum as compensation, not exceeding 51.

Philbrick, Q.C., for the appellant.-This would formerly have been a fatal variance, but it is now provided for by Jervis's Act (11 & 12 Vict. c. 43), sects. 1 and 9. The justices ought not to have dismissed the information, for no injustice could have been done by proceeding with the case. If they thought this would produce injustice, they ought to have adjourned. It is immaterial whether the appellant had charge of the property or not.

BLACKBURN, J.-I think the justices have made a mistake, and the case will have to go down again. The information was for damaging a lamp, the property of three persons, who were named. The first objection was that the person who preferred the charge was a servant, and that he should have seen the act done with his own eyes, I cannot understand this objectiou. The justices seem to have thought that the person in charge of the property was the only person who could prefer the information. The other objection was that the property was laid in three persons, of whom one only was the legal owner, for the declaration of

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trust to the other two made them only equitable owners. This would be a fatal variance at common law, where everything had to be proved as laid, "secundum allegatu et probata," but by Jervis's Act (11 & 12 Vict. c. 43), sect. 1, "no objection shall be taken or allowed to any information, complaint, or summons for any alleged defect therein in substance or in form, or for any variance between such information, complaint, or summons and the evidence adduced on the part of the informant or complainant at the hearing of such information or complaint as hereinafter mentioned; but if any such variance shall appear to the justice or justices present and acting at such hearing to be such that the party so summoned and appearing has been thereby deceived or misled, it shall be lawful for such justice or justices upon such terms as he or they shall think fit to adjourn the hearing of the case to some future day.' I think this can bear no other construction, but that the justices ought not to listen to such a variance as this; if there is a variance they may and ought to go on, unless it is a case in which to do so would produce injustice, then they may adjourn. I do not find that they have done this here. They do listen to a variance, which is just such a variance as the Act says the justices should not regard. They should have proceeded as if the right person had been named instead of the right person together with two

others.

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Grant of right of way by will before the Wills Act -Words of limitation-Way of necessity-Excessive user.

Plaintiff's and defendant's lands adjoined each other, and about the middle of the boundary was a gate into defendant's land at the end of a lane or road leading to this gate from the public street, and passing some tenements and entrances to closes on plaintiff's land. On the opposite side of defendant's land from the gate was a house in a ruinous state, which was once, in 1830, a dwelling house, and between this house and the gate was a separate building, then used as a kitchen for the house. The remainder of defendant's land has been partly and at different times garden, orchard, grass, &c.

The owner of plaintiff's and defendant's premises, who died in 1830, by his will devised to his nephew, the defendant's predecessor, the said premises now the defendant's, and he directed that his nephew should have the privilege or right of the said road for loading coals, dung, and other necessary things, through the said gate, to the said kitchen and garden. This was the only approach for a horse and cart to the said garden and back building, and the only approach on foot except through

[Q. B.

the house. The defendant and his predecessors used this building as a pig-stye and as a stable, and the road for horse and cart, cattle, sheep, and pigs, and carrying hay, bricks, and mortar. Held, that this grant of a right of way, being a way of necessity, was appurtenant to the premises, and not merely a personal privilege or for the life of the grantee; also that this was not an excessive user under the circumstances.

THIS was an action of trespass brought by the plaintiff against the defendant for the alleged trespasses complained of as follows; and also for the purpose of obtaining a writ of injunction to restrain the defendant from continuing and repeating the said alleged trespasses, and by order according to the Common Law Procedure Act 1852, a special case had been stated for the opinion of the court without any pleadings, of which the following is an abstract;

The two questions in dispute were, first, the right of defendant to use a private roadway over ground occupied by plaintiff; secondly, if he had the right whether his user was excessive.

The plaintiff's and defendant's lands adjoin each other along their greatest length, and about the middle of this side of the defendant's land is a gate at the end of a lane or road, which leads to this gate from the public street, passing some tenements and entrances to closes of the plaintiff. The land and buildings on both sides, and the soil of the roadway, all belong to the plaintiff.

On the defendant's land inside the gate is a separate building, and on the other side of it towards the public street is a house, and adjoining it there are some other buildings. These premises occupy about a fourth part of the land now occupied by the defendant, the remainder being partly und at different times garden, orchard, grass, &c.

In 1786 Abraham Harrison, the elder, surrendered a messuage, bakehouse, and garden (now part of the defendant's premises) to the use of himself for life, and after his death to the use of his son Abraham Harrison the younger, and Elizabeth his wife, for their lives, and after the death of the survivor, to the use of the heirs of the body of Abraham Harrison the younger, and in default of such issue, to the use of his own right heirs.

The said Abraham Harrison the elder died in or about the year 1787.

The said Abraham Harrison the younger, in addition to the life estate in the property to which he succeeded on the death of his father Abraham Harrison the elder, was also entitled to the copyhold property, forming the plaintiff's and the remainder of the defendant's present properties.

During the life of the said Abraham Harrison the younger, the separate building on the defendant's property was used by him as a kitchen, part of defendant's land as a garden, and part as a croft. Access to the garden was obtained over the road in dispute, which was used by the said Abraham Harrison the younger soon after he acquired the plaintiff's property, and which has been used since the death of the said Abraham Harrison the younger, in manner hereinafter mentioned.

Abraham Harrison the younger, by his will dated 25th Jan. 1830, the material parts of which are set out in this paragraph, devised to his wife Elizabeth Harrison for her life, with remainder to Thos. Richardson and the heirs of his body, the dwelling house, crofts, outbuildings, and appurtenances, and piece of land therein described,

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being the premises of the plaintiff, and after making several other devises, the testator gave and devised all his other freehold and copyhold hereditaments unto his executors thereinafter named during the life of his wife, in trust to apply the rents and profits for the purposes of his will. And after the decease of his wife the testator gave and devised to his nephew John Harrison, and to his heirs and assigns for ever, all that kitchen standing behind a dwelling house wherein Thos. Herrod then lived (such kitchen and dwelling-house being now the premises of the defendant), and also the garden behind the said dwelling-house and premises occupied by the said Thos. Herrod, and so much of the upper and lower croft adjoining as would enlarge the garden so as to extend to the bottom of the lower croft, and so as to be eighteen yards in width from the top or kitchen and all the way down to the bottom. The said will then proceeds as follows:-"And I will and direct that my said nephew John Harrison shall have the privilege or right of a road for leading coals and dung, and other necessary things, through the large gate opening from Bridge-street near to the cow house in the said upper croft over the said upper croft to the said kitchen and garden."

The said testator, Abraham Harrison, died on the 6th Feb. 1830, and his will was proved in the same year.

The testator's widow, the said Elizabeth Harrison, entered into possession of the premises so devised to her, and died on the 9th Nov. 1839. Thereupon the said Thos. Richardson was admitted on the 2nd March, 1841, to hold as customary tenant in tail the lands and tenements devised to him as aforesaid (now the plaintiff's premises), according to the custom of the manor of Beaureper; and the said John Harrison entered into possession of the lands and tenements respectively devised to him in the said will.

Upon the death of Elizabeth Harrison, the tenant for life, John Harrison, became entitled as customary heir of Abraham Harrison the elder and entered into possession of the remainder of defendant's property, but was not formally admitted until the 17th July, 1852.

From the death of Elizabeth Harrison in 1839, down to the year 1860 or 1861, John Harrison, or his tenant, used the road in question in connection with their use and occupation of the building on his property as a kitchen, and of the remainder of the property as a garden and orchard in the manner hereinafter mentioned.

In 1860 or 1861 the said kitchen ceased to be used as a kitchen, and became a pig-stye, and from 1871 until the present time has been used as a stable. From and after such change of user in 1860 or 1861 down to the death of the said John Harrison, which took place on the 7th March, 1865, the said John Harrison or his tenants used the road in question in connection with their use and occupation of the said building as a pig-stye, and of the remainder of the property as a garden and orchard in the manner hereinafter mentioned.

John Harrison by his will dated 7th May, 1861, devised his property to Joseph Wright and Michael Jessop upon trust to sell the same; and the said Joseph Wright having disclaimed the property so devised to him, the said Michael Jessop was admitted alone on the 10th May, 1866.

On the same day Michael Jessop surrendered the property so devised to him in trust for sale to

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[Q. B.

Joseph Wright in fee, to whom he had sold the same. The defendant is and was at the time of the alleged trespass the tenant to Joseph Wright of this property.

From the death of John Harrison down to the sale to Joseph Wright by Michael Jessop, and from the sale to Joseph Wright down to 1871, Joseph Wright and their respective tenants used the road in question without interruption in connection with their use and occupation of the said' building as a pig-stye, and from 1871 to 12th June, 1872, as a stable; and of the said remainder of the land as a garden and orchard.

From 1839 to 1848, whilst the defendant's premises were in the occupation of one Thos. Herrod, as tenant, the road in question was constantly used by him for the purposes of driving cows, sheep, and pigs, and for carrying cabbages, manure, straw, coals, firewood, and other things of like character, in a wheelbarrow. The said road was also used by him with his horse and cart at the time of hay harvest, when he carried his hay from some other grass land in his possession, and stacked it upon the said croft.

From 1848 to 1868, whilst the defendant's pre-mises were in the occupation of one George Beresford, as tenant, the said road was constantly used by him for the purposes for which the said Thomas Herrod constantly used the same as in the last paragraph mentioned; bricks, sand, mortar, lime, and stone had also at one or more times been carried in a cart drawn by a horse along the said road, for the purpose of being worked up or used by him upon the said croft in the way of his trade as a stone mason; but such user was not shewn to be of a general or continuous character, but was of an exceptional and temporary character in connection with some temporary arrangements with regard to his said trade as a stone mason.

No interruption, interference, or dispute of any kind, had at any time arisen with respect to the said road until after the plaintiff had entered into possession in June, 1872, nor had any notice whatever been given to the owners from time to time of the premises now in the occupation of the plaintiff of any difference in, or enlargement of, the user of the said road until after the plaintiff had entered into possession in June, 1872.

Save the road in question, there is not now and and never has been any access for carts, horses, or cattle, to the said defendant's property, and save the road in question, there is not and never has been any access for persons on foot to the said property, except through the sitting-room of the house. The said house is now in a ruinous state, and can be and has occasionally been used as a passage for persons on foot passing from the high street to the said property, and cows can be and have occasionally been driven down the said passage and through the said sitting-room. The said passage is too narrow to admit of the passage of a cart.

The property so as aforesaid devised to the said Thomas Richardson, now belongs to the plaintiff's landlords, viz., the Right Hon. Lord Belper, Anthony Radford Strutt, Esq., and George Henry Strutt, Esq., as tenants in common, they or their predecessors in title having purchased it from the said Thos. Richardson, who had previously madea surrender on the 6th July, 1852, of the premises with a view to cutting off the entail created by Abraham Harrison's will.

Q. B.]

LOVERING (app.) v. DAWSON AND OTHERS (resps.) (1).

The plaintiff became tenant to Lord Belper and Messrs. Strutt of these premises in 1872, and sues for the injury done to his occupation by the use of the road in question by the defendant as hereinafter mentioned.

The defendant, who is a coal higgler and stationer, uses the building upon his property as a stable for the horse kept by him in the way of his business, and places his cart in the garden, and the defendant makes use of the said road in question, passing over the same to and from the said stable and garden with his cart and horse.

The question for the opinion of the court is, whether under the circumstances herein before stated, the defendant is entitled to use the said road in manner hereinbefore appearing, or in any other and what manner.

If the court shall be of opinion that the defendant is not entitled to use the road in question in any way, the verdict is to be entered for the plaintiff for 40s. damages.

If the court shall be of opinion that the defendant is entitled to use the road in manner hereinbefore appearing, the verdict is to be entered for the defendants.

If the court shall be of opinion that the defendant is not entitled to use the road in question in manner herein before appearing, but is entitled to use it in some other way, a stet processus shall be

entered.

Mellor (with him J. G. Kennedy) argued for plaintiff. The testator, Abraham Harrison the younger, died in 1830, so the 28th section of the Wills Act, 1837 (1 Vict., c. 26), has no application. The words directing that the nephew "shall have the privilege or right of a road," merely amount to the grant of a personal privilege, or at most of a right of way for the grantee's life. They are not sufficient to make the right of way appurtenant to the premises previously devised. In Reay v. Rawlinson (30 L. J. 330, Ch.), the Master of the Rolls held that a gift by will dated in 1838 to J.M., "of the house she lives in, and grass for a cow in G. field," part of another estate, passed an estate in fee in the house, but would not create a permanent interest in the land of the other estate. And according to Nichols v. Hawkes (10 Hare 342), even the Wills Act would not affect the extent of this mere direction. There it was held that the gift after the Wills Act of an annuity without words of limitation, out of a real estate devised to another person, did not carry more than a life interest, as it would have done before the statute. At all events this user of the right is excessive. Wills, Q.C., appeared for the defendant. BLACKBURN, J.-I think we need not trouble counsel for the defendant. The testator was the owner of all the premises now held both by plaintiff and defendant, and he left to the defendant's predecessor absolutely all the estate now enjoyed by him. He adds, "And I will and direct that my said nephew, John Harrison, shall have the privilege or right of a road for leading coals and dung, and other necessary things, through the large gate opening from Bridge-street, near to the cow-house in the said upper croft, over the said upper croft to the said kitchen and garden." This was clearly a way of necessity at the time of the devise, and it seems to be so now for the purpose of the devise. In the case cited, Reay v. Rawlinson, the Master of the Rolls based his decision upon the absence of necessity for the

[C. P.

easement. He said, "The testator gave the house absolutely to Jane Malcolmson in fee simple. The grass for a cow was not necessary for the enjoyment of the house; it passed no interest in the land, but merely gave a personal right, by way of easement, to pasture a cow on a field, given absolutely to another, as long as she thought fit." By implication, if necessary for the enjoyment, the easement would have been appurtenant to the gift of the house; and I have no doubt this gift of a right of way ought to be appurtenant to the estate devised to John Harrison. On the second point, I do not see under the circumstances that there has been any user of the right of way exceeding that intended by the words of the grant. The defendant, therefore, is entitled to the verdict. There is not the ground for a stet processus.

LUSH, J.-I am of the same opinion on both points. I think common sense and reason require us to hold that the testator meant to give this right of way as appurtenant to the devise.

Judgment for defendant. Attorney for plaintiff, H. G. Field, for J. G. Jackson, Belper.

Attorneys for defendant, Bevan and Daniel, for T. Worthington, Derby.

COURT OF COMMON PLEAS. Reported by ETHERINGTON SMITH and J. M. LELY, Esqrs. Barristers-at-Law.

Monday, May 31.

LOVERING (app.) v. DAWSON AND OTHERS (resps.) (1).
Municipal election-35 & 36 Vict. c. 60-Corrupt
Practices (Municipal Elections) Act 1872-Who
may be respondent-Unsuccessful candidate.
An unsuccessful candidate at a municipal election
cannot be made a respondent to a petition complain-
ing of the election, although he had coalesced for
the purposes of the election with two successful
candidates, so as to be responsible equally with
them for ang acts done by any of the three in
furtherance of the common purpose.

Under the Act 35 & 36 Vict. c. 60, the only person
who can be made a respondent to a petition is
one whose seat is sought, or whose election is dis-
puted.

THIS was a case under the Municipal Elections Act 1872, in which a question was raised for the opinion of the Court of Common Pleas arising out of the trial of a petition against the three respondents, who had been candidates for the office of Town Councillors for the Borough of Maidenhead, and two of whom had been returned as elected in Nov. 1874. The petitioner was also a candidate, and on the case coming on for trial before the barrister appointed under the Act to hear the petition, the respondent Poulton, who had been an unsuccessful. candidate, objected to being joined as a respondent with the two other respondents, who had been returned as elected. The barrister stated the following case for the opinion of the court upon the objection so raised.

At the last Municipal Election of Town Councillors for the town of Maidenhead, there were several candidates, of whom Poulton, Dawson, and Walker were three. Dawson and Walker were duly elected, but Poulton was not. A petition was presented, under the Municipal Election (Corrupt Practices) Act 1872, against the return of the said Dawson

C. P.]

LOVERING (app.) v. DAWSON AND OTHERS (resps.) (1).

and Walker, and Poulton was also included in that petition as respondent.

At the trial of the petition before me, a preliminary objection was taken by Mr. Biron, who appeared as counsel for Mr. Poulton, to that gentleman being joined with the other respondents in the petition, on the ground that the Act only contemplated a petition against those persons who were actually returned to office, and that the word "candidate," employed in the Act could not be said to apply to those who, although candidates for election, had not been returned to office, and relied upon several sections of the Act.

Mr. Griffiths, who appeared for the petitioner, contended that the word "candidate" extended to all persons who were candidates for election, and that wherever the word candidate was used in the Act, it must be used according to the interpretation clause of the Act.

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Dawson, Walker, and Poulton coalesced for the purpose of canvassing the burgesses.

On the trial before me, I found that Dawson had been guilty of bribery through their agents.

Upon these facts I have, at the request of Mr. Poulton's counsel, to ask this honourable court to determine whether, under the Municipal Elections (Corrupt Practices) Act 1872, the respondent Poulton was properly made a respondent in the petition.

In the event of the court being of opinion that he was so properly joined, then he is under my order, to pay his proportion of the costs in common with Dawson and Walker, to the petitioner Wm. Lovering, of and incidental to the said petition; but in the event of the court being of opinion that the said Poulton was improperly joined as respondent, then I order that he do receive his costs of and incidental to his defence.

The prayer of the petition, which charged bribery, treating, and corrupt practices generally against the three respondents, was, "That it might be determined that the said election and return of the said Robert Walker and William Dawson was null and void, and they were not duly elected, and that the said Robert Walker and Wm. Dawson and Richard Swallow Poulton were and are disqualified for being elected to and for holding any municipal office in the borough, for which the said election was held, and that each of them is subject to the disqualifications in the said statute mentioned and set forth."

H. D. Greene (J. O. Griffits with him), for the petitioner. Mr. Poulton has been properly made a respondent to the petition. The Act 35 & 36 Vict. c. 60, defines who may be a respondent. The object of the Act and of the inquiry held by the court constituted under the Act, may be seen in ss. 4 and 5. There, "candidate" must certainly include unsuccessful candidates; and there is a case in this court where an unsuccessful candidate, one who was not returned as elected, was, nevertheless, held to be properly made a respondent, and made to pay the costs: (Yates v. Leech, 30 L. T. Rep. N. S. 790; L. Rep. 9 C. P. 605.) Then in the 9th sub-section of sect. 13, there is a provision that two or more candidates may be made respondents to the same petition, and nothing is said limiting them to successful or elected candidates. [Lord COLERIDGE, C.J.-Is not the position of a respondent summed up in sect. 18: "If he dies, resigns, or otherwise ceases to hold the office to which the petition relates"? This seems to contemplate his

[C. P.

holding office. BRETT, J.-If an election is not complained of nor the seat claimed, under what part of the Act could you petition and make an unsuccessful candidate respondent?] The 13th section, sub-sect. 1, makes respondent to include a person against whose election a petition is presented. It is not, therefore, limited to it: (The Launceston Election case, Drinkwater v. Deakin, 30 L. T. Rep. N. S. 832; L. Rep. 9 C. P. 626.) There would be no means of obtaining otherwise a declaration of disqualification for a future time. By a reference to the practice of committees, it will be seen that unsuccessful candidates were sometimes made respondents: (The Beverley case, Wolferstan and Bristowe, Elec. Cas. 77.) The Taunton case (2 P. R. & D. 159.) [Lord COLERIDGE, C.J.—In that case Sir E. Colebrooke claimed the seat, and so the electors might make a recriminatory charge.] The Pontefract case (Wolf. & Dew. 68). [Lord COLERIDGE, C.J.-In The Maldon case, in 1853 (2 P. R. & D. 143), the reason of this is made plain; for there, when the original petition was withdrawn, the second recriminatory one was not allowed to proceed, because it did not affect the election.] It would manifestly be a great hardship that Mr. Poulton could be reported on and so disqualified in his absence; and yet, unless a respondent, he might be abroad and have no notice, so as to defend himself. The disqualification takes effect upon the report, and the court must report. [GROVE, J. -There seems to be no provision answering to sect. 45 in the Parliamentary Elections Act to be found in the Municipal Act.] No, that is so; and, consequently, the court cannot interpolate anything, and a man in the position of Poulton may be disqualified unheard. ` Another point is, that a man's conduct may be inquired into, and he may incur disabilities; yet if he do have notice of the charges, and appear and defend himself, and do so successfully, he still will have no means of having security for his costs, or of recovering them against those who have wrongly charged him, and he will have no means of compelling witnesses to attend. The wording of the 5th section of the Act seems to require the construction for which we contend. [BRETT, J.-That is no doubt a difficulty, but, probably, candidate there spoken of means an unsuc cessful candidate, who is a petitioner.]

Biron, contra.-Part 1 of the Act, down to the end of sect. 11, is new legislation, and is dealing with corrupt practices, and assumes that the persons spoken of are parties to the petition, and so brought before the court. Those sections apply, as is manifest upon studying them, to parties to the petition, that is, to successful candidates or unsuccessful candidates who petition and claim the scat. The claim or occupancy of the seat is the test, and if an unsuccessful candidate claim the seat, a counter case may be opened and proved against him, to prove him disqualified also, and to this case he becomes a sort of respondent. It is true that there is no section like sect. 45 of the Parliamentary Elections Act, but although by subsect. 6, the court must report the names of persons proved at the trial to have been guilty of corrupt practices, yet it is submitted that all those provi sions must be read with reference to sub-sect. 9 of sect. 15. [Lord COLERIDGE, C.J.-The 45th section in the Parliamentary Elections Act gives a description of proceedings in which the person charged has an opportunity of making his defence, and does not, as it seems to me, expressly

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