observance of what is right towards his principals, the Corporation; he ought never to see them wronged, and be silent; he ought to tell them everything that might conduce to their interest; he ought always to see that the by-laws of the Corporation are not evaded. The Corporation does its work through officers, and by means of committees appointed for particular parts of the work, as the Finance Committee, the market Committee, &c. There are by-laws in relation to many of the officers. By one, the Mayor is authorized to sign, seal, and execute, on behalf of the Council, all deeds, bonds, contracts, agreements, or assurances made and entered into, or directed to be, by the said Council. By another, it is ordered that the City Clerk shall keep the common seal, and affix it to all documents which from time to time may be made or issued by order of the Council, or signed by the Mayor. By a by-law "concerning the Public Markets," it is ordered that the butchers' stalls shall be let annually, in the month of April, by public auction, for the term of a year from the 1st May following, and that the leases shall stipulate that the lessees shall, in no instance, directly or indirectly, sub-let the said stalls, or any part thereof, or otherwise dispose of any interest they may have in the same; that they shall not permit the said stalls, or any part thereof, to be occupied by any persons or persons, whatsoever, other than themselves, without the special consent of the Market Committee. Such a by-law is a standing direction to the Market Committee, Councillors, and all concerned. The language of it is very strong. It is a by-law in favor of working butchers, and against drones, who might otherwise extort from them. On stalls reverting to the City, during the twelve months' term of any lease from default of rent paid, or other causes, they fall to be disposed of by the Market Committee (this by sec. 41 of the by-law referred to). Having made these observations preliminary, I will now state the issues in this case. The plaintiff Smith commenced the proceedings by a petition or information presented on the 14th of March last, praying that the defendant should be held to show by what right he was holding the office of Councillor, in the Corporation of Montreal, for the St. Ann's Ward; that he should be declared incapable of holding the office; that he should be ousted, and the petitioner put into the office, &c. The petition cominences by alleging the February last election for Mayor, Aldermen and Councillors; that the petitioner was a candidate for the office of Councillor for the St. Ann's Ward; that defendant also was; that petitioner was fully qualified to be elected, and also was a qualified voter; that the defendant was incapacitated from being elected, not having the requisite real property qualification, and because before and

TOME XXII.

2

at time of his nomination, and during the election, he was, directly and indirectly, a party to and security for a contract and agreement to which the Corporation was and is party, and did and doth derive interest, profit and advantage from such contract and agreement, which was and is in force and existing, being a lease from the Corporation of certain stalls, and a certain stall or place in the public market, known as the St. Ann's market, to him the defendant, and to and for his profit, interest and advantage, and for the fufilment of which the defendant was and is bound and liable as security, said contract and lease passed before Devlin, notary, in 1870, that defendant not having the real property required, and being such party to and security for said contract or agreement, previous to the nomination and at the time of his election, was incapable of being elected a Councillor; that petitioner received 376 votes at the election, and he was, of all who were capable of being elected, the candidate who received the largest number of legal votes, and was, therefore, duly elected Councillor, to wit, for said St. Ann's Ward; yet the Mayor, Aldermen and citizens refuse to admit petitioner to said office, and have declared defendant entitled to it by the result of that election of February. The petitioner futher states against defendant, that he is unqualified to hold and retain the office of Councillor, as he has not the real property qualification required, and because he is a party to and security for a certain contract or agreement passed before Devlin, N. P., between the Corporation of Montreal and the defendant touching the lease of certain stalls or places, or a certain stall in St. Ann's market, from which contract or agreement, day by day defendant derives profit, &c., whereby he is now disqualified from holding said office of Councillor, &c. That petitioner is unable to state more precisely the nature of said contract or agreement, as he has been refused full information of the same, but he reserves to state more fully the same later. The defendant by his plea or answer to the information denies its allegations of his [defendant's] want of proper qualifications for the office of Councillor, and denies that defendant usurps the office. It goes on to say that, at the election for February, defendant was duly nominated and elected Councillor, having received 615 votes. Then it sets out the real property and other qualifications of defendant and his title deed, and negatives all disqualifications. Then it states that, true it is that, on the 11th of June, 1870, defendant leased stall 38 in St. Ann's market, but that the mayor and City clerk who signed the lease had no authority to make it, and the pretended contract in this lease is null, by law, and never bound the Corporation nor the defendant; and the

lease itself was annulled on 13th of March, 1871, by the same officers as made it; this by act before Devlin, N. P. ; that the lease was broken as from the 11th of March, 1871, and only after the annulation of it was defendant sworn into office on that 13th of March; that the lease, however, never did disqualify the defendant from being a cadidate and being elected, or from holding office; that as to stall 37, defendant never had any interest in it. Then the plea denies that defendant has ever been, directly or indirectly, interested in any contract to which the Corporation of Montreal was or is party, or that defendant has ever derived any profit from any such pretended contract. By his answer, the informant denies that the title deed recited by defendant evidences sufficient real property qualification; then it says that, as to stall 38, defendant cannot pretend want of authority in the officers of the Corporation to lease it to defendant, seeing that defendant has always possessed it and paid rent for it; that, as to stall 37, defendant was always interested in it, and in the contract and lease of and about it, having taken it in the name of his infant son to hide that he himself [defendant] was party thereto, as in fact he is to this day, said infant having died in July, 1870, aged 9 months; that the defendant has derived profit from said lease of stall 37; that the cancellation of the lease for stall 38 was unauthorized by the Corporation, and made by William Workman when no longer mayor of the city, and without bearing the seal of the Corporation, as was required, and it is null and void. Here are the principal things proved at the enquête, apart from what was proved about the real property qualifications of plaintiff and defendant, which is of little interest, since I announced yesterday that both parties are found to have sufficient property qualification. The defendant was Councillor for the city for the term that expired in March last. In April and May, and during the rest of 1870, and until March last defendant was also one of the Market Committee. In February, 1871, defendant was again elected Councillor for St. Ann's Ward. The butchers' stalls of St. Ann's market were leased from May 1, 1870, to May, 1871. The defendant took lease as from 1st May, 1870, of stall 38. Michael McShane and his minor son got leases of 11 and 12, and stall 37 was leased to A. J. McShane, defendant's baby. Four stalls were gotten so for defendant and his infant son, and defendant's Brother and his minor son. The defendant, as it seems to me, never meant to occupy 38, nor was it intended to do with A. J. McShane's stall 37 anything but sub-let it: and both 37 and 38 were sub-let from 1st May, 1870, and have been occupied only by the sub-tenants, Bayard in no 37, and Fisher

in 38. A. J. McShane, in the lease to him, purports to sign the lease, and is styled butcher. As to the signature, A. J. McShane, to the lease, nobody can say who signed it. “A. J. McShane," however, appears to be (sys the notary Devlin) in the same handwriting as the signature "James McShane, jr," to the lease to defendant. Bayard and Fisher, who seem two honest working butchers, have paid, besides all Corporation rents, enormous sums to the defendant as rent; for instance, Bayard for 37 has paid $260, this pays, he says, to 1st May, 1871. Fisher for 38 has paid from May last several instalments of $20 a month; he was to pay, as he understood, $20 a month besides paying the Corporation. He has paid 5, 6, 7 such payments to defendant, he says. Defendant asks nothing more or less, signed no writings, but said he would make it all right. It was as stall rent Fisher paid to defendant. It was the defendant, says Bayard, who fixed his (Bayard's) rent with him; that is for 37. The defendant says he has received nothing from Bayard, except for Ellen Dunn, living in New York, sister of defendant's step-brother. The receipt that defendant gave Bayard reads so: "J. McShane for Ellen Dunn." "I do the business for my family," says the defendant. James McShane, sen., father of the defendant, testified as follows: I bought in stall n° 17 in the name of defendant's son. I thought a live child was better than a dead man. Patrick, my son, died ten days previous, and the stall was taken for the interest of his wife, Ellen Dunn, whose father died a judge in Brooklyn. The defendant does the business for the family. As to stall 38, d fendant stood, under deed of lease, tenant of it till after his last election in February, and up to the 13th March, on which day the new Mayor and Councillors were to be sworn into office. A few hours before this ceremony defendant and the late Mayor, then holding office merely till the new Mayor should have been sworn in, make an agreement to cancel the lease of stall 38, as from the 11th of March; the parties sign, and the City Clerk does. At the same time a new lease of that stall is executed by the Mayor and City Clerk to defendant's father, for the broken term up to May, 1871. The father, examined about it, said at first that he signed the lease, himself, till defendant called him to acknowledge that it had been signed for him; that he had not signed it himself. B. McShane signed it, as attorney for defendant's father. At the argument I was pressed by plaintiff to find that defendant had been making contracts, directly and indirectly, with the Corporation; that stalls 37 and 38 were both defendant's; that the signature in the name of defendant's baby was, presumably, defendant's; that defendant had taken the stall

into his power and had gotten the rent he stipulated for it, and so was to be held to have been lessee of 37 indirectly, while of 38 he was lessee directly; that defendant had misused his office and violated his duty by trafficking in stalls and helping his family and himself to them, contrarily to his duty and to the by-laws of the Corporation; that defendant had violated the by-laws of the Corporation by sub-letting 37 and 38; that defendant, interested in the contracts of lease of 37 and 38, was incapable of being elected at the February election, and now is incapable of holding the office of Councillor, for the leases are still continuing; that the pretended cancellation of lease of 38 was a mere nullity, a piece of favoritism by the late Mayor in favor of a Councillor, unauthorized (as the City Clerk has proved) by the Council or by any Committee; that it was null for want of seal, in addition to want of authorization. The defendant has contended that plaintiff's conclusions of demand are contradictory; that leases existing by the Corporation in favor of defendant of dates long anterior to the nomination in February last could not be held to disqualify for election; that a lease at any time is not a "contract" within the meaning of the 29 & 30 Vict. that the cancellation by the Mayor of the lease of stall 38 was legal, though without seal, and that if it was null for want of seal, then the original leases of 37 and 38 were null also, being not sealed. I need not observe upon the arguments bearing upon the real property qualifications of the plaintiff and defendant; for, as I have said before, that part of the case has lost interest. I have to pass upon the rest of what the parties have put in issue. Defendant protests that he never had any interest in stall 37. The plaintiff persists that defendant was the real lessee and beneficiary under the lease of 37 to his baby son; that he was lessee of 38, and still is, and that these leases involve contracts disqualifying, not merely from being elected, but from holding office now. Was defendant lessee of 37? Defendant's father says he bought the stall in the name of defendant's son. The Corporation was deceived in believing that it had a tenant, a real one, a butcher. Among relations we presume arrangements

sometimes. Would defendant's father have used defendant's baby's name without any consent of defendant, is the argument of Mr Smith. Who signed the lease to A. J. McShane? There is some presumption of defendant having done it. O. J. Devlin's evidence leads to some presumptions, and we have defendant's ratification of what had been done by his reception of the rent from the sub-tenant, whose rent was fixed by defendant himself. As to the money that went to Helen Dunn, defendant got it firstly. Defendant ought to have