registration and other work done during the period from January 1894 to June 1895; (third) personal expenses incurred by the respondent during the same period. The suggestion is that these were all expenses which, to use the words of the Act, were incurred "in the conduct and management of the election"; and it is said that being in that category they ought (first) to have been paid through the respondent's election agent; and (second) to have been entered in the respondent's election accounts.

The respondent does not dispute that the payments in question were made; neither does he dispute that they were made with his knowledge-at all events that he knew enough to make him responsible for their being properly dealt with. What he maintains is-(first) that the payments for the meetings and to Mr Foster, were disbursed not by him or on his behalf, but by the two Unionist Associations for their own purposes; and (second) that his personal expenses, although incurred in furtherance of his intended candidature, were yet, by reason of the period to which they applied, and the whole circumstances, outwith the category of proper election expenses.

I do not find it necessary, and I am not disposed to discuss the question, how far these three heads of expenditure were incurred and disbursed in furtherance or promotion of the respondent's candidature-I confess I am of opinion that with regard to Mr Foster's salary it is quite impossible to maintain that it was a payment of that character. I take it as the result of the evidence that Mr Foster was an official of the Unionist Associations-that at least his chief duty was that of a registration agent -that he was paid a salary at a certain rate per month-and that his salary would have been paid all the same-would probably have been paid all the same-although Mr Gordon had not appeared on the scene, or had not appeared until immediately before the election. I do not consider that in these circumstances it is possible to suggest that Mr Foster's salary comes under the category of expenses incurred in furtherance or promotion of the respondent's candidature. The other expenses, however, I mean the expenses of meetings, and the respondent's personal expenses, although not of large amount, are perhaps in a different position, and are quite sufficient to raise the question, and with regard to these I propose to assume-although I do not decide that they did represent expenditure made in furtherance or promotion of the respondent's intended candidature. In that view, the question we have to decide is a comparatively short question, and is simply this-Whether it is according to the just construction of the Act of 1883 that those expenses-expenses of meetings and personal expenses-incurred during the period from February 1894 to June 1895, were proper election expenses, that is to say, expenses incurred in the conduct and management of this election? Now, I am bound to say that, keeping in view the period covered-a period extending back eighteen months before the actual

election-the suggested construction appears to me to be at least exposed to serious difficulties. In the first place, the words of the Act-the words "on account of, or in respect of, the conduct or management of the election," do not strike me as suggestive of a period extending back indefinitely it may be for years, or to the last election. A candidature, or intended candidature, may no doubt so extend, and if it had been so meant, it would have been easy for the Legislature to have said in plain words that no expense shall be incurred in promoting or procuring the election of any candidate, except such as shall be paid through his election agent, and shall enter the statutory account. That could easily have been expressed, and there was nothing to prevent its being expressed. A phrase which would have expressed it occurs in various other clauses of the statute-I mean the phrase "promoting or procuring the election of any candidate.' But that is not the language used. For some reason, good or bad, the Legislature has confined the enactment to expenses which can be attributed to the "conduct or management of the election," and these words, it seems to me, at least suggest and contemplate an election which is not in nubibus but is reasonably imminent.

Again, what is to be said of the provision of the statute that those expenses which I have called for shortness election expenses (the expenses in question) must be paid through the election agent, while, according to another section of the statute, the election agent need not be appointed until the day of the nomination? How, it has been fairly asked, can expenses incurred eighteen months before, be paid through an agent who, according to the scheme of the Act, does not exist until eighteen months after? No doubt the election agent may be appointed earlier if the candidate chooses; the appointment is in the candidate's hands; but the difficulty is to say that the statute contemplated an appointment months or years before the date expressed, viz., the date of nomination. It is at least an observation which the respondent may well make. that if the Legislature had really meant that the whole expenses of the candidature should be paid by or through the election agent, it would have been natural to provide that the election agent should be appointed at or before the commencement of the candidature. That, however, is not provided. What is provided is, that the election agent shall be appointed "on or before the date of nomination." And that, I think, goes at least to show that in the view of the Legislature the expenses which were to be paid through the election agent were not necessarily co-extensive with the expenses of the candidature. I say nothing as to the further difficulty which has been pointed out with respect to expenses incurred (as they lawfully may be) by outsiders (that is to say, unauthorised outsiders) in supporting the candidature of some particular candidate. I confess I do not myself see how the acts of outsiders-unauthorised

outsiders-can be acts in the conduct and management of the election. If, however, the petitioners are right that the conduct and management of the election covers anything done in the promotion of the candidature of any candidate, the result then certainly is, that many persons and bodies who are accustomed to intervene in elections, and to do so quite lawfully, but have no control over the appointment of the election agent, appear to be placed in a very serious position.

These considerations, I confess, suggest very strongly to my mind that what the Legislature had in view as the period of the election-the period of the election which was to be conducted and managedwas a period not at least much anterior, I will not say to the date of nomination, but to the group or series of events which immediately precede the nomination, and which, as we all know, begin, in the case of a General Election,

with the announcement of the dissolution, and in the case of a bye-election with the announcement of the vacancy. It is then, and not till then, that, unless in exceptional circumstances, the candidates join issue, and the contest, as distinguished from the preparations for the contest, begins.

At the same time, it has certainly to be noted-what your Lordship has emphasised -that the Legislature has abstained, and we must hold deliberately abstained, from defining the period at which the election shall be held to begin. The statute might have defined that period, but it has not done so, and no doubt for this good reason, that if a hard and fast line had been fixed, a hard and fast date fixed, facilities would have been offered for evasion of the Actevasion by dishonest candidates desiring to evade it and defeat its object. Accordingly, while I think that the Act indicates plainly enough the kind of period which it contemplates, it contains nothing in the shape of hard and fast definition; and that being so, I apprehend the result is, that it is left to us as Election Judges, and it becomes our duty, to consider each case with respect to its own facts, and to say in each case whether or not special circumstances exist requiring us to hold that the election began prior to what I may call the normal period. In considering that question I apprehend we are to have regard to the whole facts-the nature of the work done, and of the expenses incurred; the extent and amount of that work, and of those expenses; the question how far the operations of the candidate were continuous up to the election, or were intermittent, taking the shape merely of periodical visits to the constituency. Above all, we are, I apprehend, to have regard to thiswhether we have before us evidence of any attempt to evade the Act-evidence, for example, of profuse expenditure purposely antedated so as to escape the Act; or whether, on the other hand, everything appears to have been done in good faith and ordinary course-the pre-election operations and pre-election expenditure being

on the whole fair and reasonable--that is to say, fair and reasonable, having regard to the position of the candidate and the character of the constituency.

Applying these principles, I have to ask myself this question, whether there is anything in the history of the respondent's three visits to this constituency-in_the spring of 1894, in October 1894, and in June 1895-anything which makes it necessary or just that we should here take the extreme course of holding that the election of July last, 1895, began eighteen months before, in February 1894. That is, I think, the question which I have to answer, and after full consideration, all I have to say is, that I have come, and come without much difficulty, to a conclusion in the negative. I do not require to consider what is the exact term which best describes Mr Gordon's position during the period in question. That position was in itself plain enough. He had been selected, not perhaps formally and finally, but yet practically, as the person who was to contest the county when the time came for a new election. On his part, again, he had resolved, barring contingencies, and if all went well, to accept and take advantage of that selection. That was his position, and being in that position, he paid periodical visits to the constituency feeling his way, making the acquaintance of the electors, and, as it seems to me, acting generally like most of those other persons who during the years between 1892 and 1895, in contemplation of a probable candidature at next election, paid visits more or less frequent to constituencies within Scotland, and addressed more or less frequent meetings within these constituencies. That, it appears to me, is the substance of all that has been proved with respect to the respondent's proceedings, and that being so, I am satisfied that we only do justice in holding that this objection to the election must be repelled.

As to

Then as to the other matter-the alleged payments to Mr M'Hardy and others the suggestion is that certain persons nominally employed and paid as polling agents were truly employed and paid as sub-agents, and that thereby the number of sub-agents authorised by law was exceeded. that suggestion, which has all along seemed to me to be somewhat difficult, I desire to reserve my opinion with respect to the duties for which it is lawful to employ and remunerate sub-agents, polling agents, and messengers respectively. It may be, as the petitioners contend (I say nothing to the contrary), that to employ and remunerate, for example, Mr M'Hardy, nominally as a polling agent, but really to canvass voters, would be illegal. I say nothing to the contrary, but such an employment is not to be presumed; it must be proved; and in my opinion it is certainly not proved, first, by proving that in point of fact the polling agent was an active partisan who as a committee man or volunteer canvassed voters or brought voters to the poll; secondly, by proving that he did so in the knowledge or even at the request of the election agent; or thirdly, by proving

that it was an element in his selection as polling agent that he was a person who was an influential elector or even an active partisan. It appears to me upon the evidence that in none of the cases before us does the petitioners' proof go beyond this, and therefore in my opinion it fails. Prima facie, I may admit that the

amount

of remuneration paid to Mr M'Hardy_and some others required explanation, but I am not prepared to say that the explanations given have been insufficient; and therefore on that matter also I concur with your Lordship.

The petitioners then proceeded to lead evidence on the charges of bribery, but after some witnesses had been examined, it was intimated by counsel that they did not propose to proceed with the charges of bribery and treating.

The Advocate-Depute, in answer to Lord M'Laren, intimated that he had no objection to offer.

On 23rd November the Court pronounced the following interlocutor:

"Find that the averments of fact in the petition are not proved: Therefore dismiss the petition, and find that the respondent John Edward Gordon was duly elected Member of Parliament for the counties of Elgin and Nairn, and decern: Find the petitioners liable to the respondent in the expenses of the cause, as the same shall be taxed as between agent and client."

Counsel for the Petitioners-Shaw, Q.C. -Ure-Dewar. Agent-James Falconer,

W.S.

Counsel for the Respondent-DicksonC. N. Johnstone-Wilson. Agents-Mackenzie, Innes, & Logan, W.S.

Counsel for the Lord Advocate-Ferguson, A.-D.

REGISTRATION APPEAL COURT.

Tuesday, November 19.

(Before Lord Kinnear, Lord Trayner, and Lord Kincairney).

CAMPBELL v. MORRIS. Election Law-Service Franchise-Representation of the People Act 1884 (48 Vict. cap. 3), sec. 3.

A claim to vote under the service franchise, in terms of section 3 of the Representation of the People Act 1884, was made by a coachman who slept and took his meals in the mansionhouse occupied by his master, but had the exclusive use and control of a room over the stable, furnished as a bedroom, which he used during the day.

Held that the dwelling-house," which he "inhabited by virtue of his service," within the meaning of the

statute, was the mansion-house, and not the room over the stable, and that consequently, as the mansion-house was also inhabited by his master, he was not entitled to the franchise.

At a Registration Court for the county of Perth (Eastern Division), held by the Sheriff of Perthshire on the 3rd day of October 1895, Andrew Morris, coachman, Ayton, claimed to be enrolled on the Register of Voters for the county of Perth (Eastern Division) as tenant and occupant of a house at Ayton. The claim was for admission to the service franchise, in virtue of the Representation of the People Act 1884, section 3, which provides, "where a man himself inhabits any dwelling-house by virtue of any office, service, or employment, and the dwelling-house is not inhabited by any person under whom such man serves in such office, service, or employment, he shall be deemed for the purposes of this Act, and of the Representation of the People Acts, to be an inhabitant occupier of such dwelling-house as a tenant.”

Hugh Campbell, solicitor, Perth, as mandatory for James Mitchell, New Scone, draper, a voter on the roll, objected to the claim being admitted. The facts found proved by the Sheriff were as follows:The said Andrew Morris is coachman to Mr William Livingston Watson of Ayton, in the parish of Abernethy, and resides there the whole year round. As such coachman he has in respect of his services the sole and exclusive use of a house over the stable which is furnished with beds, and in which he dresses and undresses, and which he also sits in during the day when he has leisure. Mr Watson is for a great part of the year absent in London, and as there are no other men-servants in the mansion-house at Ayton, the claimant has been requested to sleep in the said mansionhouse, and has a bedroom there where he has slept for the last four years, never having slept in the house in respect of which the claim is made. He keeps his box in his bedroom in the mansion-house, but keeps most of his clothes in the house over the stable. He has the custody of the keys of the said house over the stable, and full control of it. The claimant takes all his meals with the other servants in the mansion-house. He is not married.

The Sheriff admitted the claim, whereupon the said Hugh Campbell required a Special Case for the Court of Appeal, and this case was stated accordingly.

The question of law for the decision of the Court of Appeal was:-"Whether in the circumstances above set forth the claimant is entitled to be put on the said roll of voters in respect of section 3 of the Act 48 and 49 Vict. cap. 3, intituled The Representation of the People Act 1884?

Argued for the appellant-This case is ruled by the case of Adair v. Murray, 2 R. 11, see especially Lord Ardmillan's opinion at page 12. The words "inhabits any

dwelling-house" must be taken to refer to the house where he sleeps and takes his meals, not to the room which he occupies

merely in his leisure time-Rogers on Elections, vol. i. p. 93. He is therefore not entitled to the service franchise, as his master also inhabits the mansion-house.

Argued for the respondent-The claimant is really away from his home when he is in the mansion-house. He sleeps there as part of his service, because the reason of his being required to sleep there is that he may act as a watchman when his master is away. The house which he really inhabits is the room over the stable, because that is where he spends his time whenever the terms of his employment do not require him to be elsewhere. Moreover he might inhabit two houses-Sim v. Galt, 20 R. 84.

LORD KINNEAR-I think that this is a somewhat narrow case, but I am unable to agree with the learned Sheriff. The clause which we are called upon to interpret is the 3rd section of the Representation of the People Act 1884. [His Lordship here quoted the section.]

Now, the claimant is a coachman in the service of Mr Watson, and the case sets out that he sleeps in the mansion-house and takes his meals there. It also sets out that Mr Watson is absent for a great part of the year in London, and that as there are no other men-servants in the mansionhouse the claimant has been required to sleep there in the capacity of watchman. It is further stated that there is a house Over the stable furnished with beds, although these are not used, and that he has the exclusive use of it for dressing and undressing, and keeps his clothes there, although he also keeps a box, presumably for his clothes, in his bedroom in the mansion-house.

Now, it appears to me in construing the word "dwelling-house in its reasonable sense, that the house the claimant inhabits is the mansion-house, and not the house over the stable. He is in the same position as many other people who inhabit a dwelling-house and carry on their business in a shop or office elsewhere. It appears to me that the claimant's dwelling-house is the house in which he sleeps and takes his meals day by day.

Mr Blackburn says that he is required to live in the mansion-house as part of his services. In that view he inhabits a dwelling-house by virtue of his service, but the dwelling-house is occupied by the master under whom he serves. I am of opinion that the Sheriff's judgment ought to be recalled.

LORD TRAYNER concurred.

LORD KINCAIRNEY-I think this is a very narrow case, but I am not prepared to differ from your Lordships.

Their Lordships pronounced the following interlocutor:

"The Judges of the Registration Court of Appeals having heard counsel for the parties on the appeal, Sustain the same, and remit to the Sheriff to expunge the name of Andrew Morris, coachman,

Ayton, from the register of voters for the county of Perth (Eastren Division), and decern."

Counsel for the Appellant-Cullen. Agent -David Dougal, W.S.

Counsel for the Respondent--Blackburn. Agents-Russell & Dunlop, W.S.

Tuesday, November 19.

(Before Lord Kinnear, Lord Trayner, and Lord Kincairney).

STIRLING v. FLETCHER.

Election Law-Lodger Franchise-Claim and Declaration-Evidence of Qualification- Wilful Refusal of Claimant to Answer Citation as Witness-Registration Amendment (Scotland) Act 1885 (48 and 49 Vict. cap. 16), sec. 14.

The Registration Amendment (Scotland) Act 1885, by sec. 14, enacts-"In the case of a person claiming to vote as a lodger, the declaration annexed to his notice of claim shall, for the purpose of revision, be prima facie evidence of his qualification." A claim to vote as a lodger, to which a statutory declaration was annexed, was objected to upon averments of fact, which were within the claimant's knowledge, and which the objector proposed to substantiate by the claimant's own evidence. The claimant was accordingly cited as a witness, but failed, without reasonable excuse, to attend either the first or an adjourned diet of the case, and no other evidence against the claim was led by the objector. The claim was sustained by the Sheriff, on the ground that he was not entitled to take the circumstance of the claimant's failure to attend as a witness into account, and that, apart from this, there was no evidence to rebut the statutory presumption in favour of the qualification.

Held (diss. Lord Kincairney) that the claimant's wilful failure to answer the citation was admissible (but not necessarily conclusive) evidence against the claim; that the effect which ought to be given to it in any particular case was a matter for the determination of the Sheriff; but further, that as it appeared in this case that the Sheriff would have rejected the claim had he taken this circumstance into account, the claim fell to be rejected.

Opinion (per Lord Kincairney) that no inference could, as evidence for or against the claim, be drawn from the claimant's wilful failure to obey the citation, and (per cur.) that it did not entitle the Sheriff to refuse the claimant the franchise as a punishment for contempt of Court.

At a Registration Court for the Eastern Division of the county of Renfrew, held by the Sheriff of Renfrew and Bute on

v. Fletcher

19

5th October 1895, at Kinning Park, William Fletcher, druggist, claimed to be enrolled on the register of voters for the said division as a lodger, in respect of a bedroom occupied by him in his father's house at 45 Albert Road, Crosshill. declaration annexed to the claim was in the statutory terms, and was duly certified.

The

As regards this declaration, the Registration Amendment (Scotland) Act 1885 (48 Vict. cap. 16), section 14, provides

"In the case of a person claiming to vote as a lodger, the declaration annexed to his notice of claim shall for the purposes of revision be prima facie evidence of his qualification."

A special case stated by the Sheriff in regard to this claim set forth the following facts: -"Hugh Austin Stirling, writer, residing at 188 Albert Road, Pollokshields East, a voter on the roll, objected to the claim on the grounds that the claimant was not the sole tenant of the bedroom mentioned in his claim, that he had no contract with his father, and that the bedroom was not of sufficient value. He stated that he proposed to substantiate the objection by the evidence of the claimant himself, whom he had duly cited to attend the Court.

"The claimant did not appear in obedience to the citation, and Mr Robert Bird, writer, Glasgow, who attended as his mandatory, stated that he was unaware of the reason of his non-appearance.

"Thereupon the objector moved that the claim should be rejected, in respect of the claimant's non-appearance after citation. On the other hand, Mr Bird moved that the claim should be admitted, in respect the objector had led no evidence to rebut the statutory presumption.

"I continued the case to an adjourned Court to be held on 10th October 1895, stating that I would consider what course I ought to adopt if the claimant was cited to such adjourned Court, and again failed to attend.

"At the adjourned Court held on 10th October 1895, at Paisley, the objector produced letters of second diligence and execution of citation against the claimant to attend thereat, under certification of being held as confessed, but the claimant did not attend personally, and no satisfactory excuse for his absence was offered by his agent. The objector tendered no further evidence.

"I admitted the claim, stating that I did so reluctantly, and merely because, on full consideration, I thought the case of Dalgleish v. Dodds, 1894, 22 R. 198, obliged me to take that course; and that, but for the decision in that case, I would, in accordance with previous practice, have held the claimant as confessed, and rejected his claim, because of the disrespect which he had shown to the Court in disobeying the two citations given to him.

"Thereupon the objector required me to state a special case for the Court of Appeal" --and this case was stated accordingly.

The question of law for the decision of the Court of Appeal was-"Does the wilful failure of a lodger claimant to obey a cita

tion given him to appear at the Court in order to be examined as a witness in support of an objection taken to his claim entitle the Sheriff presiding at the Court to hold him as confessed, and to reject his claim?"

Argued for the appellant-The case of Dalgleish was not in point. There the only evidence which was relied on to rebut the statutory presumption was incompetent, and therefore the declaration stood uncontradicted. In Weir v. Blackwood, 8 Macph. 3, under the County Voters Registration (Scotland) Act 1861 (24 and 25 Vict. cap. 83), it was held that the failure of a claimant to appear and produce his title on a second citation justified the Sheriff in rejecting his claim. In that case it was assumed that certification would have been competent. The non-appearance of the claimant is sufficient to justify an inference in fact that his claim is unfounded, as he is not prepared to support it by his oath.

Argued for the respondent-The letters of second diligence under certification were incompetent. The statute which regulates the citation of witnesses in Registration Courts, viz., The Burgh Registration Act 1856 (19 and 20 Vict. cap. 58), applied to counties by the "Representation of the People Act 1884" (48 and 49 Vict. cap. 3), section 8 (6), empowers the Sheriff-section 24to grant warrant for the citation of witnesses and-section 38-to impose a penalty for wilful failure to obey the citation; and the Sheriff had no power to substitute refusal of the franchise for the penalty provided by the Act. Weir v. Blackwood is distinguished from this case because the County Voters Registration (Scotland) Act 1861 contains no provision like section 14 of the Registration Amendment (Scotland) Act 1885. Failure to answer a single citation is not sufficient-M'Gowan v. Mather, 7 R. 46, and there was no reason why failure to answer a second citation should be. If the claimant does not appear, and no evidence is led, the statutory presumption stands undisplaced, and the claim must be allowed-Dalgleish supra. If this question was answered in the affirmative it would bind all the Sheriffs to dismiss a claim whenever the claimant did not obey a second citation. Moreover, the question could not be answered in any way which would lead to an operative decree in this case. This Court had no power to decide anything except the answer to the question stated in the case, Maitland v. M'Credie, 7 Macph. 288. The appeal should therefore be dismissed.

LORD TRAYNER-The question of law put to us in this case is not stated in such a form as to enable us to give any definite answer to it one way or the other. It is impossible to lay down any abstract rule to the effect that if a claimant wilfully abstains from appearing before the Sheriff when his claim is under consideration, the Sheriff must always, in consideration of that fact alone, reject the claim. On the other hand, there may be circumstances in which the Sheriff would be justified in rejecting a claim in respect of the wilful absence of the claimant.