imposing taxes, and title deeds in favor of Cameron, showing that he was the proprietor of real estate liable to taxation, also examined the secretary treasurer, to show that his taxes were unpaid at the time of the election. At the final argument, respondents contended that there was no evidence. that taxes were due, although they had been imposed by bylaw; that, under the Municipal and Road Act of 1860, sec. 59, §§ 9, 12 & 13, it was necessary, preliminary to the collection of municipal taxes, that the collection roll be made out and deposited in the office of the secretary-treasurer, and public notice of such deposit given, calling upon all persons appearing on the collection roll to be indebted for taxes to pay the amount within twenty days, and that, until these formalities have been observed, no taxes are due or exigible, and no proceedings for their collection could be adopted; that no proof had been adduced of the observance of these formalities. The respondents also contended that the petitioners, who where all present at the nomination, had acquiesced in and covered any irregularity which had been committed. As to this they cited the following authorities, Rex vs Symmons, 4 T. R. 223; Rex vs Parry, 6 Ad. & E. 810; Rex vs Osborne 4 East, 327; Rex vs Trevenen, 2 B. & A. 339; Rex vs Slyth, 9 D. & R. 181. They further contended that in any case the opposing candidate could not be declared elected, the votes given in their favor without notice of any irregularity in their nomination not being thrown away, Rex vs Bridge, 1 M. & S. 76; Reg. vs Tewkesbury, L. R. 3 Q. B. 629. It was almitted that an error was apparent on the face of the pollbook as between the candidates Griffith and Precourt, the former being credited with ten votes less than he had actually received. "By the abandonment of allegations on both sides the scope of this case was considerably narrowed at the argument, and, by the view I feel myself compelled to take of it, its limits will be still further circumscribed. The first point to which I shall advert is the alleged declaration of election of two of the respondents (Robertson and Morkill) before the expiration of one hour from the opening of the meeting. On this point, a great many witnesses were examined on both sides, and, as might be expected, the evidence is very contradictory. I am not disposed to think that any of the witnesses examined here, were in bad faith. Peop'e in a crowded meeting very rarely agree in their recollection as to what took place, even when their attention is drawn to the fact to be remembered; how much greater, then, must be the divergence when they attempt to recall circumstances which at the time appeared to them to be of no moment? It is very probable that the presiding officer said something immedia

tely after the nominations were over about there being no opposition to the election of Messrs. Robertson and Morkill, and that when he declared a poll as to the other five candidates, he formally declared them elected. This supposition accords with the rule which prefers positive to negative testimony. "I did hear," is much more conclusive as to whether a thing was said, than " I did not hear; " therefore we should be rather disposed to believe that the unopposed election of Rbertson and Morkill was twice spoken of by the presiding officer than that it was not spoken of at all, or only once. But it is hardly necessary to discuss the point. Although time in such matters is very important, the neglect of it does not seem to be a fatal irregularity, unless by the neglect, substantial injustice is done. I have not been able to find much authority on this point, but, in Warren's Parliamentary Election Law, I find that the approved doctrine is that no election shall be set aside from closing the poll too early, unless some one suffers, and so it was held in the Limerick case (Perry & Knapp, p. 373). The case of the King against Osborne (4 East, 327) has been cited in support of this view; but it is right to observe that the head note is not supported by the report. Lord Ellenboroughs reason for refusing to consider the question of time was that it was brought up as a second thought, and was not the main ground for seeking the rule. The petitioners in the present case seem to have thought it necessary to prove the importance of the time as affecting the result of the election, for they have alleged in their petition that, after the declaration, and before the expiration of an hour after the opening of the meeting, a large number of electors came for the purpose of proposing candidates in opposition to Robertson and Morkill. But nothing can be more plain than the fact that no evidence could be produced to support this allegation. Not only were none of these electors produced but the presiding officer tells us that no one came to him to propose any candidate in opposition to these gentlemen, although he remained at the poll, not only an hour, but the whole day. We also have it from witnesses who may be perfectly relied on, that a powerful party, to which two or three of the petitioners belonged, tried all in their power to get candidates to oppose Messrs. Robertson and Morkill, and, tinding it impossible to succeed, they made the best of what seemed to them a bad bargain, and put the names of these gentlemen on their own party tickets. The next point is the validity of the nomination of the respondents. It is said that Oliver Cameron, who seconded their nomination, had not paid his municipal taxes; that, therefore, he was not an elector, and consequently, that the nomination was bad, the election

of all these candidates null. To this the respondents answer that, 1 there is no evidence that Oliver Cameron's taxes were due; 2 that this was not a ground to annul the election, and 3 that the petitioners had acquiesced in the irregularity and covered it. The evidence is, first, the testimony of the secretary-treasurer who deposed to the fact that, on the 8th January, Cameron stood on the collection-roll as being indebted to the corporation in the sum $68.40 for general purposes, and $25,65 for school purposes, and that he paid on the 12th what he owed; second, the corporation by-laws levying taxes. It is contended that this is not sufficient; that the taxes do not become due by the passing of the by-law; that after that the secretary-treasurer must make his collection roll, and give public notice that it is completed and deposited in his office, and that all persons are to pay within twenty days, and that until these twenty days have elapsed the amount is not due. It was also contended that the presumption was that the taxes were paid. I think the respondents right in this, and that the taxes were not due within the meaning of the act, until after public notice was given that the collection-roll was completed and deposited. It is probable that, in the absence of the collection-roll, I might have been induced to presume that what the law ordered the secretary-treasurer to do early in June, he had done before. the month of January, but the collection-roll has been produced, and it does not appear by it that any public notice, such as is required by law, was ever made, and the secretarytreasurer was not interrogated upon that point to make up the deficiency in the evidence. It was said that, in the case of Hart vs The Corporation of Clifton, I had decided that absence of notice was of no importance. What I did decide was that the notice had been proved to have been given, and that by the statute in force at the time of the sale there was not any special form for giving notice. Under the M. & R. Act the form of notice the secretary-treasurer was obliged to give, is laid down in the form E. E. Had the evidence then been confined to the testimony of the secretary-treasurer, the inforinal collection roll and the by-laws, I should have had no hesitation in deciding that the evidence of Oliver Cameron's indebtedness was insufficient; but there remains the admission of the indebtedness of Cameron by his paying what stood against him on the books. The answer to this is, that this is not an admission of indebtedness, and that the indebtedness may have existed on the 12th of January and not on the 8th, in the absence of any proof of the public notice by the secretary-treasurer. The last part of this, answer appears to me to be conclusive. I cannot presume

TOME XXII.

24

particularly in the absence of the certificate that the public notice was ever given, and Cameron's payment on the 12th of January at most is only an admission that he owed on a day subsequent to the election. Being of this opinion I must declare Robertson, Morkill, Borlase, Archambault and Campbell to have been duly elected, applying the same rule of evidence to the alleged disqualification of Miller as an elector as has been applied to the disqualification of Cameron, and correcting the error in addition in the poll-book, I must declare Precourt's election to be null and void, and Griffith to have been duly elected. This view of the case renders it unnecessary for me to express any opinion as to the other questions which have been so fully and so ably argued at the Bar. Under all the circumstances, I think each party should pay his own costs. Petition dismissed. (16 J., p. 173; 2 R. C., p. 235)

HALL & WHITE, for petitioners.

W. L. FELTON, Q. C., counsel.

G. H. BORLASE, for respondents Robertson & Morkill. SANBORN, BROOKS & CAMIRAND, for respondents Borlase, Archambault & Campbell.

L. E. PANNETON, for respondent Precourt.

QUEBEC LICENSE ACT.-CONSTITUTIONALITY.-CERTIORARI.

SUPERIOR COURT, Sweetsburg, 29th April, 1872.

Coram DUNKIN, J.

Ex-parte DUNCAN for Certiorari.

Held: That no certiorari lies from a conviction by the District Magistrate, under the Pedler clauses of the Quebec License Act. 2nd. That the Quebec License Act is constitutional.

PER CURIAM: "This is an application for a writ of certiorari, to bring up a conviction, by the District Magistrate for this District, at the suit of the Revenue Officer, under the Pedler clauses of the Quebec Act, 34 Vic., c. 2, commonly known as the Quebec License Act. The affidavit of circumstances sets forth, that, on or about the 18th of December last, the applicant was arrested, at Sweetsburg, in this District, and brought before the District Magistrate, without summons or warrant; that he was, then and there, called upon by him "to answer a certain information, for a certain alleged offence, in a certain paper-writing, called a declaration, set forth," the greater part of which is given at length; that

applicant appeared by counsel, "and objected to the proceedings had and taken in the matter, and pleaded not guilty to the charge;" that, on the 22nd of the same month, the prosecutor put in such evidence as he saw fit, and closed his case; that the applicant, "through counsel, objected to all the proceedings had, and refused to examine any witnesses for the defense;" that "both parties then argued the case before him, and he took the same en délibéré, and ajourned his court to the 3rd of January, to render judgment; that, on that day, upon application of the prosecutor, the District Magistrate "re-opened the whole case," and fixed it for the 10th of January, for evidence generally, he, the applicant, taking exception to such order; that, on the 11th of January, the District Magistrate convicted him of the pretended offence in question, in terms set forth in the affidavit; and that the applicant holds the District Magistrate to have been without jurisdiction, and the "information, or paper-writing, or declaration, and the conviction, to be illegal, insufficient, null and void," for the following reasons: 1stly, because “all the proceedings were irregular, illegal, null and void;" and the District Magistrate "acted illegally and irregularly throughout the whole proceedings;" 2ndly, because no affidavit or affirmation, as required by law, was ever made or taken "to support the charge;" 3rdly, because no summons or warrant ever issued in the matter, as required by law, and the conviction is not according to law;" 4thly, "because no offence was set forth in the information, or in the conviction, in the terms of the law in that behalf, inasmuch as they omit to allege that the offence took place within the limits for which the prosecutor was appointed Revenue officer, and for other reasons;" 5thly, "because the Act, 34 Vic., c. 2, of the province of Quebec, known as the Quebec License Act, under which the present prosecution was brought, is unconstitutional, and was so made and framed by the Quebec Legislature, without any authority so to do, and contrary to the provisions of the British North America Act, 1867, which provides that all matters coming within the criminal law, including the procedure in criminal matters, are exclusively confined to the Parliament of Canada;" 6thly, because there was no proof, legal and sufficient, made before the District Magistrate, to support the allegations of the said paperwriting or declaration, or to support the conviction, and consequently justice has not been done, and said conviction was grossly irregular and illegal," and 7thly, because the conviction condemned the applicant, "not only to forfeit the sums of $40 fine, and $70.35 costs, but adjudged him to pay to Levi A. Perkins, the Revenue officer, in his said capacity,