Hughes v. Marshall and others (a). The action was brought by an innkeeper against the defendants, who had been supporters of a candidate at an election, to recover the amount of refreshments supplied to voters at the election, upon the request of the defendants. The defence set up was, that the proceeding was illegal by reason of the Treating Act. Patteson, J., directed the jury "that the case could not be within 7 Wm. 3, c. 4, unless they were satisfied that the defendants were proved to be the agents to, or identified with the candidate; and that if they were of opinion that the articles in question were supplied at the request, and on the personal credit of the defendants they must find a verdict for the plaintiff." The jury accordingly found a verdict for the plaintiff. A rule nisi for a new trial was afterwards obtained. During the argument, Lord Lyndhurst, C. B., remarked: "That the words on his or their behalf' must be understood to comprehend only acts resorted to at the request, or with the knowledge of the candidate." Afterwards, when the rule was discharged, Lord Lyndhurst in delivering the judgment of the Court said, "We are of opinion, that the rule in this case for a new trial should be discharged. One point was, whether the case fell within the provisions of the Treating Act, and we are of opinion on the evidence at the trial that it did not; and in that respect we agree with the learned judge who tried the cause. It is perfectly clear from the language of that statute, that no transaction falls within the provision of the act, unless the candidate or person to be elected has some share

(a) 2 C. & Jer. 118.

in the transaction. It is perfectly clear from the words of the statute, that, to bring a case within the above provision, the acts mentioned in the statute must be done by the candidate, that is, not by him only, but by him, or by some person acting for him and on his behalf. It appears to us that there is nothing in the evidence in the present case to affect the candidate; and indeed the question was put to the jury, whether the refreshments were supplied on the credit of the candidate, or on the individual credit of the defendants; and the jury found that they were supplied upon the credit of the defendants. We think, therefore, that this case is not within the provisions of the Treating Act." It will be seen that the decision in this case turned mainly upon the circumstance that there was no evidence at the trial to show that the defendants had been the agents of the candidate at the election; and further, that the articles had been supplied on their individual credit only. The expression that fell from the learned Chief Baron during the argument, that the words in the act "on his or their behalf" must be understood to comprehend only acts resorted to at the request, or with the knowledge of the candidates, is very much qualified by what is found on the same subject in the judg ment of the court pronounced after deliberation. It is there said, that acts done by a person acting for and on behalf of the candidate are within the statute, and nothing is said about such acts being done at the request of, or with the knowledge of the candidate.

The case of Thomas v. Edwards (a), which is

(a) 2 M. & W. 215.

also occasionally referred to as a judicial interpretation of the law of election agency, has really no bearing upon the question. In that case an action was brought by the executor of an innkeeper against the chairman of the committee of a candidate, in order to recover the amount of refreshments supplied by the testatrix to voters at an election, by the directions of a person named Miller. And the whole question in the case was this was Miller a principal in giving the orders, or did he only act in so doing on behalf of Mr. Edwards the chairman of the committee? No objection was ever made at the trial that the transaction was illegal by reason of the Treating Act. In the judgment, Parke, B., says, "If, indeed, the meat and drink were supplied by the testatrix, with a view to induce the electors to vote for a particular candidate, the contract made would be illegal; but of this there was no sufficient evidence in this case; and, if there had been, such a defence would not have been admissible under the plea of non assumpsit, since the new rules." It may well be questioned whether there is anything in any of these decisions, at all inconsistent with the well established rules of parliamentary law on this subject.

It has been argued (a) that a candidate ought not to be disqualified by reason of treating by his agents, unless the circumstances were such that he would have been liable in an action to the person providing the entertainment, supposing such expenses

(a) Pickering, Remarks on Treating, p. 15, and Warren's Elect. Com. 531.

had not been made illegal; that is to say, unless the candidate himself ordered the entertainment or gave authority to some one else to order it. Supposing that there were no illegality in the transaction, the only question would be, as in the case of Thomas v. Edwards, to whom was credit given, or who was the person really making the contract. But the statutes having declared that the giving entertainment to voters on behalf of a candidate shall be illegal, it may well be doubted whether a tradesman supplying provisions, by directions of a person whom he knew to be acting on behalf of the candidate at the election, could recover the amount of his bill, even though he had given credit to the agent only, and not to the candidate. However that may be, public policy requires that a candidate should suffer, in so far as his own eligibility is concerned, for the corrupt acts of those whom he has employed to secure his return, as much as if he had expressly authorised such acts to be done. The principles which have governed the decisions of committees is thus stated by Mr. Rogers: "A candidate at an election professedly seeks an office of trust for the benefit of the public; the public, therefore, is the party mainly interested; nor is it too much to require that, in seeking to obtain such office, the candidate should employ trustworthy agents. Even in the discharge of private trusts a man is generally made responsible for the honesty of the persons whom he employs, and is liable for any defalcation of which they may be guilty. In elections, when the protection of the public interest is the object to be obtained, a candidate has no right to complain if he is made to

suffer from the misconduct of others selected or allowed to act for him" (a).

The correctness of the parliamentary rule on this subject was recognised by Lord Tenterden, in the case of Felton v. Easthope, Sitt. after Trin. Term, 1822 (b). This was an action for penalties for bribery. The agent by whom the acts of bribery were committed being the principal witness, the learned Chief Justice told the jury that "it was perfectly true if an agent who may be employed for various purposes, to canvass, &c., does without the knowledge, privity, or approbation of the principal, promise a sum of money, the principal is not liable to be sued under this act for the penalty. No person is liable to be sued for that penalty unless that which was improperly done was done by his authority. If an agent bribes voters, with or without the knowledge and direction of the principal, it will void the election: the principal is to that extent liable, but not so in an action of this sort. It must be proved to be done with the knowledge and authority of the principal." This rule has long been recognised by committees as law, not only in cases of bribery, but in treating also; with this exception, that if all the treating proved was anterior to the teste of the writ, it was not illegal unless it took place by the authority, or at the expense of the candidate (c). The recent enactment has done away "with this distinction, and henceforth all acts of treating

(a) Rogers on Elect. Com. 222. The same subject is treated of very fully in Mr. Warren's recent work on Elect. Com. p. 459.

(b) Rogers on Elections, 259.

(c) 5 & 6 Vict. c. 102, s. 22.