C. P.) LAUNCESTON ELECTION PETITION-DRINKWATER (pet.) v. DEAKIN (resp.). as if the persons had not voted at all." But this was upon the ground that the status of a candidate was taken away by the operation of the statute of Charles II.; for in the later case of Rex v. Parry (14 East, 549), Lord Ellenborough and the other judges held a man to be duly elected, who had been at the time of the election disqualified, for exactly the same reason as in the former case, because before his election could be questioned he had become qualified, which he was not when elected, and his subsequent qualification by retrospectively restoring his status, called into existence the votes which would otherwise have been treated as not given. These and other like cases were decided upon the Test Act, where a condition made by law a condition precedent to candidature had not been fulfilled, and where notice of its nonfulfilment was notice that the man who had not fulfilled it was not and could not be a candidate. Under the same principle may be classed cases where the disqualification was infancy, such as was Claridge v. Evelyn (5 B. & A. 81), a want of estate, as in The Belfast case (Falc. & Fitz. 595), The Tavistock case (2 P. R. & D. 5), and in some others. The cases of a woman, of an alien under the old law, of a convicted felon, stand upon the same footing. In all these cases something is wanting in the candidate himself, which cannot be supplied, the existence or nonexistence of which is not dependent on argument or decision; but which the law insists shall exist in everyone who puts himself forward as a candidate. Bribery, however, is altogether a different matter, and is subject to considerations altogether different. No doubt, as Lord Mansfield says in Rex v. Pitt (3 Burr. 1335), it was always a crime at common law punishable by indictment or information. That, however, would not by itself prevent a person who had bribed from being a candidate at an election; and there is no case in which any such consequence has been held to flow from the commission of the offence, except under circumstances which, when rightly considered and properly understood, establish, and do not vary or qualify the rule. The offence of bribery has, however, been dealt with in various statutes, and the argument to be drawn from the language appears to me, I own, to be conclusive the other way. The 17 & 18 Vict. c. 102, consolidated and amended the laws relating to bribery, treating, and undue influence at elections of members of Parliament. It begins by repealing in whole or in part many of the old statutes relating to these subjects; nor is it necessary for the present purpose to consider the provisions of those which remain in force. It enacts, in the 2nd section, in words sufficient to cover the case of Col. Deakin, that persons who do certain acts shall be deemed guilty of bribery, and punishable accordingly. It then proceeds, in the 36th section, as follows, in words which are of the utmost importance: "If any candidate at an election for any county, city, or borough, shall be declared by any election committee guilty, by himself or his agents, of bribery, treating, or undue influence at such election, such candidate shall be incapable of being elected or sitting in Parliament for such county, city, or borough, during the Parliament then in existence." The words, it will be observed, are not "shall be guilty," but "shall be declared guilty by an election committee;" and it seems clear that, but for these words, a man guilty and declared guilty might have sat even during a cur [C. P. rent Parliament for the very seat which he had lost by bribery except at the particular election rendered necessary by that avoidance, which is regarded as an adjournment only or continuance of the election so avoided. The Act of 26 & 27 Vict. c. 29, does not contain any provisions which, with reference to this particular subject, it is necessary to consider. The 31 & 32 Vict. c. 125, by which the jurisdiction of the House of Commons in matters of election petitions was transferred to the judges of Westminster Hall and to this court, contains very important provisions, especially ss. 3, 43, 45, 46, and 47. These clauses deal with the punishment to be inflicted upon candidates and other persons in respect of bribery and other corrupt practices; these punishments being greatly more severe in the case of bribery than of other corrupt practices. It seems to me to result from them all, that the disqualifications created by them are intended to be and are the result of the finding or report of the judge or other tribunal, and that they attach only on such finding or report, and from its date. In the case of the candidate, his "incapacity of being elected to and of sitting in the House of Commons during seven years," is expressly to begin "after the date of his being proved guilty.' The other severe provisions of the 43rd section are limited in like manner. Precisely the same words are to be found in the 45th section, which deals with the case of bribery in persons other than the candidate himself. The 46th section re-enacts the 36th section of 17 & 18 Vict. c. 102, substituting the words "reported by a judge on the trial of an election petition" for the words "declared by an election committee," on which I have already commented. The 47th section provides for the removal of the disqualifications created by the former sections, in cases where they are proved to have been procured by perjury; and this section also declares, in effect, that such disqualifications did not exist till they had been so proved, that is, after trial and as the result of it. The conclusion, therefore, is that neither apart from the statutes, nor created by the statutes, is there in a candidate, from the moment of his bribing, and after notice of the fact of his bribing, any such disqualification as to prevent him thereupon from being a candidate at the then election, and to make all votes given in his favour after such notice as if they had not been given at all. Invalid upon proof of his bribery for the purpose of seating him they are; thrown away for the purpose of seating his opponent they are not. I have already explained, and will not repeat why, entirely accepting and being bound by the authority of such cases as Rex v. Hawkins (10 East, 211), they seem to me to be altogether inapplicable to the present case. Cases, however, were cited to us, decided by election committees, which it was contended had established the propositions contended for by Mr. Drinkwater's counsel. Most of them, however, are clearly distinguishable; and I think there is not one which, accurately considered, is inconsistent with the conclusion at which I have arrived. I am now speaking of those cases only which have been decided by election committees on questions of bribery. In every case in which I have been able to refer to, the bribery relied upon as creating a disqualification, is bribery committed by the candidate at the election which was avoided; and it has been held, no doubt, that such bribery is a disqualifi C. P.] LAUNCESTON ELECTION PETITION-DRINKWATER (pet.) v. DEAKIN (resp.). cation for a candidate at the election rendered necessary by such avoidance. It could not be held otherwise, for the second election, under these circumstances, is but a continuation of the first, the exigency of the writ not being satisfied till there is a good return; and by supposition the return of the candidate found guilty of bribery is not a good return, and there must therefore be a return of some one else. The cases in which a man guilty of bribery in fact at an election declared void, has been held disqualified in a second election, though his bribery had not been inquired into on the first petition, fall under the same principle. On this point the decisions have been uniform, though as to the consequences to the voters of such disqualification the decisions seem to be conflicting. The principle of all the earlier cases will be found very well discussed in a note in 1 Luders 79; and there is nothing in the later cases at all to qualify the law as there laid down. There remains, however, one decision to be considered to which these remarks do not apply, which I admit to be in point, but which I am unable to follow. It is the decision of the majority of the Court of Common Pleas in Ireland, in the Galway Petition case in 1872, which I take from the Report ordered by the House of Commons to be printed in July of that year. The case was peculiar. Captain Nolan, the candidate whose election was questioned, was found guilty by Mr. Justice Keogh, of undue influence by himself and his agents, the undue influence having been practised as the result of arrangements made by the candidate and his agents previous to the election. The learned judge held that by this "the status of Captain Nolan as a candidate qualified to be elected was destroyed, and that he was disqualified to be elected for the county by such acts committed by him and his agents: and that such disqualification existed previous to the day of nomination for such election." On a case reserved for the Court of Common Pleas in Dublin, the majority of the court upheld this decision; and Mr. Justice Lawson, who delivered the opinion of the majority, uses the following language upon this part of the case: "If (says he) the earlier sections of 17 & 18 Vict. c. 102, ss. 2, 4, and 5, defining the offences of bribery, treating, and undue influence, and making them misdemeanors, do not disqualify the candidate who is guilty of them from being elected, and do not destroy his status, upon what ground is a judge to unseat him? He cannot unseat a man because he has committed a misdemeanor: and it would seem, therefore, to follow in strictness from this argument, that the judge could not unseat him unless he had already been found guilty." This might be so, no doubt, if avoiding the election of a candidate and destroying the status of a man to be a candidate, were the same thing. But I have already pointed out that they are very different things; that the common law of Parliament and the language of statutes, has always treated them as very different; and being which they are, very different, it is only by treating them as being, which they are not, the same, that any such consequence follows, as Mr. Justice Lawson supposes. He proceeds to say: "This is, however, an absurd consequence, and I think that the true construction of the statute is that the commission of any of the offences ipso facto disqualifies the candidate from being elected; or, to use the language of Baron Martin, in the Norwich [Aug. 22, 1874 [C. P. case, 6 annihilates his status as a candidate." I have already expressed the sense in which I conceive the statute is to be construed, and I am very very glad to find that I do not conflict with any view of Baron Martin. It is probable that Mr. Justice Lawson was quoting from some unauthentic and imperfect report of Baron Martin's words, for in the full report of his Norwich judgment, printed by order of the House of Commons, he is careful to disavow, in express and accurate language, the sense which Mr. Justice Lawson has affixed to his words. He explains that he uses them only in a sense in which I entirely agree with them, and gladly adopt them as my own. His words are these: "But by the 46th section, coupled with the 36th section of another Act of Parliament (the 17 & 18 Vict. c. 102), another offence is created. These two sections enact that, in the event of a candidate, by an agent, committing bribery, he becomes incapable of being elected; and where a candidate, by an agent for whom he is responsible, commits an act of bribery, by that act the capacity destroyed, and no vote given to him will be of any of the candidate to be elected ceases; his status is avail. Some misapprehension occurred with regard to what I stated the other day in reference to that matter. It is not that the vote is thrown away in the sense in which my brother Ballantine seems to have supposed. I did not mean it in bribery is done by the agent for whom the candithat sense; I meant that, the moment an act of date is responsible, from that moment the man is incapable of being elected. The law puts its hand upon him, and says it cares not if ninebribery incapacitates him from sitting in Parlia tenths of the electors voted for him. The act of ment, and the real question which is to be decided by Hardiment [the agent] about two or three in this case is, whether or not the admitted bribery Henry Stracey is responsible according to the law 'clock in the afternoon, is an act for which Sir of England, or the election law, if you think fit to call it so." I adopt these words entirely in the plain that he used them. I reject them in the sense in which Baron Martin is careful te exsense in which Baron Martin himself expressly rejected them. If this be, as I think it is not, a refined distinction, it is one not of my inventing; it is to be found in every case, whether decided in the Courts or in Parliament, with the exception only of the Horsham and the Galway cases. It was recognised and acted upon by Baron Martin in the Stracey, he expressly declined to seat the candidate Norwich case; for although he unseated Sir Henry majority were as if they had not been given. I of the minority, or to hold that the votes of the need hardly say that the judge who thus decided has as much broad sense, and was as little given to hair-splitting as any judge of our time. I do not apprehend such consequences in fact, as it has been suggested will follow from his view of the of opinion that, although Col. Deakin's conduct law. But, whatever the consequences, I am clearly has properly avoided his election, and subjected him to the consequences enacted by the 17 & 18 Vict. and the 31 & 32 Vict., he was not at the time of the election disqualified from being a candidate, in law, as if they had not been given. This being so that all votes given for him after notice were, my opinion, it is, I think, not necessary to consider have already said I think it was not, the two farwhether, if the disqualification had been such as I C. P.] LAUNCESTON ELECTION PETITION-DRINKWATER (pet.) v. DEAKIN (resp.). ther propositions for which Mr. Drinkwater's counsel had to contend, can be sustained. I content myself with saying that, as at present advised, I think they cannot. The case is, indeed, free from the objection which, for myself, I should have found insuperable (though the Court of Common Pleas in Dublin did not find it so in the Galway case), that the notice was not served upon a sufficient number of electors to turn the scale. I feel no difficulty, moreover, as to the language of the notice, which appears to me sufficiently definite and specific in its terms; and I entirely agree, as indeed I am in a special manner bound to do, in the general law laid down as to the throwing away of votes, in the judgment in Gosling v. Veley (7 Q. B. 406), a judgment which was written by Sir John Coleridge. But I do not think that this case falls within that general law; and I further think, as at present advised, that in a parliamentary election, "in order to give effect to the notice, the disqualification must be founded on some positive and definite fact existing and established at the time of the polling, so as to lead to the fair inference of wilful perverseness on the part of the electors voting for the disqualified person." These are the words of the Clitheroe committee (2 P. R. & D. 285). They go on to state that they "believe them to be in accordance with the sound construction of the law, as well as with justice and reason." I was of that opinion, and acted upon it, when, as a member of the House of Commons, I served upon the Cambridge committee in 1866, and I retain it still. I am, therefore, of opinion that the first question put by my brother Mellor should be answered in the affirmative, and the second and third in the negative. BRETT, J.-I am sorry that I have not been able to prepare a written judgment in this case, but I think it is right for me to express the view I take upon it. There were two questions reserved for the consideration of the court: First, Assuming that the bribery of which Col. Deakin was found guilty by the judge, rendered him incapable of being a candidate at that election, was the notice of the fact given to the electors sufficient? secondly, was the bribery committed by him such as to render him incapable of being a legal candidate ? First, then, what is the true function of such a notice as was given here, i.e., when does it operate so as to cause those who vote after it is received, to throw away their votes, so as to leave the poll in exactly the same state as if they did not vote at all? When there are two candidates, one of whom is qualified and one not, and there is an actual knowledge of facts as to one, and also a knowledge that such facts cause him to be disqualified, then the voter who, possessing this knowledge, yet votes for the disqualified candidate, throws away his vote. If the voter has the knowledge of the incapacity, he cannot prevent the legal consequences of the fact from following; he cannot, merely by saying that he did not know that the law would give the seat to the other candidate, prevent that from occurring if it be the law. But there is a further state of affairs upon which the consequence follows, and it is this: when there are certain circumstances existing in fact, and notice of those circumstances would tell a person of ordinary care, sense, and intelligence, that they produced incapacity in the candidate, then the voter who nevertheless votes for such candidate throws away his vote. Or it may be further stated thus: [C. P. where there is notice given of such facts as would put a person of ordinary care and intelligence upon an inquiry which would tell him of the disqualifification, then he cannot absolve himself by asserting that he had no knowledge of the consequences of the facts he was cognisant of, or of the law applicable to them. It is a rule that no one can render an invalid act valid, by asserting that he does not know the law. This seems, perhaps, to be contrary to the Tewkesbury case, but then I think that the enunciation of the law in that case went further than it had ever done before; and, as there is an undoubted conflict of authority arising upon it, I prefer to agree with that which was recognised as the law before the decision in the Tewkesbury election. And I state it thus: where by law a certain state of facts produces an incapacity in any person to be a candidate, and where notice of that is given, then the voter cannot make his vote valid which would otherwise be not valid, by saying that he did not know. Applying this to the present case, if it had been clear law that bribery made a candidate incapable, not merely of being elected but of being a candidate, then this notice would have been sufficient for the purpose for which it is given, and so I answer the first question in the affirmative. But the main question seems to me to be, whether the bribery of which Col. Deakin was found guilty did render him incapable of being a candidate. Before the passing of the Corrupt Practices Act, what would have been his position? For, as there is nothing there to disqualify him from being a candidate, we are thrown back on the common law of Parliament. Now, if the proposition which is contended for by the petitioner here be true, it must have been one that was raised at every general election that occurred. I do not say that it was necessarily decided, but the point must have been taken over and over again. But if this be so, the law must have been challenged repeatedly, and yet how is it that no case can be produced with reference to it, unless it be the Horsham case? In one case, indeed, the committee challenged the counsel to the production of a case on this very point, and he was unable to produce one; and, therefore, the result is, that unless the Horsham case be a ruling decision to the contrary, we must perforce say that the law of Parliament is against the view that has been urged upon us by the petitioner's counsel. Then, as to the Horsham case, what did it decide? There was a petition in the first instance against the sitting member, in which Mr. Fitzgerald, the defeated candidate, did not claim the seat for himself. If he had done so, the evidence showed that there would have been a counter petition. As it was then there was another election, at which Mr. Fitzgerald was elected, and then a charge was made against him of corrupt practices at the former election. Now, if the Parliamentary committee had been entitled to act on equitable principles, or on an equitable view of the circumstances, they might have considered that, as Mr. Fitzgerald had not claimed the seat previously, he might very well have been known by all the electors to be disqualified in consequence of some incapacity, which would become patent upon an inquiry. But they were not entitled to apply equitable principles, and that made their decision wrong, and accordingly it has never been accepted by the Parliamentary authorities, and it is not a binding case upon us as to what was the practice. It is, moreover, in direct oppo C. P.] PETROCOCHINO AND OTHERS v. BOTT. sition to the Clitheroe and Cheltenham judgments. 1 [C. P. theless, there are observations in the judgment of Mr. Justice Lawson, intimating that the question was still open, but it does so happen that that part of the judgment dealing with this point is not so elaborate as the other parts. Indeed, in the Galway case, the whole contest between the judges was not the incapacity of the candidate, but the notoriety of the notice. In the result then, however sorry I may be to differ from the judgment of the court deciding that case, I have in the end come to the conclusion that, if that is a decision that a corrupt practice by a candidate at the election, of which sufficient notice is given to the electors, without however there being any previous finding of the fact by a committee or by an election judge, makes that candidate incapable in the sense in which the word has been used, I cannot follow it. I quite agree that it was right to unseat Capt. Nolan, but not that it was right to seat his opponent. With great hesitation and some doubt, in consequence of the decision of the Irish Court of Common Pleas being to the contrary effect, I cannot agree with Mr. Justice Lawson's judgment on that point, and so I think here that the facts did not render Col. Deakin incapable. Therefore, although the notice issued would have been, in my opinion, sufficient, if Col. Deakin had been incapable, yet the result is that Col. Deakin's own seat is avoided, but Mr. Drinkwater cannot be seated in his stead. I have to add, that my brother Denman agrees in this judgment as to both points. He thinks that the notice would have been sufficient if an incapacity on the part of Col. Deakin had existed, but that such incapacity did not exist. Attorney for the petitioner, John Gurney. Attorneys for the respondent, Peacock and Goddard. Jan. 24 and April 30. PETROCOCHINO AND OTHERS v. BOTT. Shipping-Bill of lading-Responsibility of shipowner in respect of cargo-When terminatedDelivery of cargo on to the quay-Usage at the port as to delivery of cargo-" Delivery from the ship's deck." Goods were shipped under a bill of lading which contained these words, "to be delivered from the ship's deck, where the ship's responsibility is to cease." The usage at the port required that the unloading should be done by the dock company, at the expense of the shipowner on to a quay, and then that the consignee should send lighters into which the goods were delivered also by the dock company, and also, if within a specific time, at the expense of the shipowner. The usage was followed, but one bale of goods was lost after delivery on to the quay, and before delivery into the lighters. Held by Brett and Denman JJ. (Honyman J. dubitante) that the shipowner was not responsible for the loss to the consignee. THIS was an action tried before Brett J. at the sittings in London after Hilary Term 1873, when a verdict was directed for the defendant, leave being reserved to the plaintiffs to move to enter the verdict for them for 411. Accordingly a rule nisi was granted on 18th April, against which cause was shown on 24th Jan. 1874. The action was upon a bill of lading by the plaintiffs, who were merchants in London and Calcutta, and was brought for the non-delivery of goods by the defendants, the shipowners, in accordance with the bill of lading. The cargo of the plaintiffs consisted of hides, and one bale was lost. It appeared that the Zeno was reported as having arrived in London on 4th May 1872, and the custom of the Port of London is that when a steamer comes into the docks she has to unload on to a quay, and the goods so unloaded are subsequently fetched away by lighters of the consignee. The dock company unload by means of their own servants, but the shipowners have to pay for the work so done. Notice is sent to the consignee of goods immediately on a ship's arrival, and if he applies within twenty-four hours the cost of delivering them into his lighters, which is also done by means of the dock company's servants, is defrayed by the shipowner, but if there is any delay beyond that time, then the goods are warehoused by the dock company, and the owners of the cargo pay the expenses of their doing so. The employment of the servants of the dock company is compulsory upon the shipowners, and the freight release is delivered up before any of cargo is touched. the In this case notice was duly sent to the plaintiffs, and their agents Culverwell, Brooks and Co., employed a man called Gray, to go with lighters and bring the bales from the docks. It was proved that the cargo was in the ordinary course unloaded on to the quay on 4th May, that everything was taken out of the ship, and that all the bales were delivered on to the quay. The plaintiffs were interested in sixty-nine bales only, and it was proved that their bales were taken away by Gray's lighters on the 6th, 8th, 14th and 30th of May; one bale was lost, but there was no evidence to show how. The jury were asked: First, were 69 bales marked P. B., delivered from the ship to the dock company on the quay ?-Answer, Yes. Secondly were 69 bales marked P. B., delivered by the dock company on board the lighters, sent by Culverwell, Brooks, and Company?-Answer, No. On these answers it was contended that the second finding of the jury was equivalent to a verdict for the plaintiff, and the rule granted was in this form, "Why the verdict entered for the defendants should not be set aside and entered for the plaintiff on the ground that the second finding of the jury was equivalent to a verdict for the plaintiff, and why a new trial should not be had on the ground that the first finding was against the weight of the evidence. Cole, Q.C. and R. E. Webster showed cause.-The terms of the bill of lading are important; they are "to be delivered in like order and condition from the ship's deck, where the ship's responsibility is to cease." Now the goods were delivered from the ship's deck within the true meaning of the bill of lading. The jury have found that they were delivered on to the quay, and the custom of the port of London was that they were unloaded by the dock company's servants, and were fetched from the quay afterwards by the plaintiffs' lighters. I contend therefore that as soon as the shipowner has placed the goods on the quay, his dominion over them ceases, and the dock company are thenceforward the agents of the consignee. It is true that if application be made by the consignee within twenty-four hours, the cost of delivering into his lighters has to be defrayed by [C. P. the shipowner. This, however, does not make the dock company agents only of the shipowner; they are the agents of both parties for the purpose of delivery. For to whom does the consignee apply? Not to the shipowner, but to the dock company. [BRETT J.-The dock company insist on the shipowner employing their men as agents in unloading.] Yes, that is so, and it may be argued that immediately upon the assumption of the duty of unloading by them the dominion over the goods, and the responsibility of the shipowner is at an end. All this is proved to be in accordance with the usage of the port of london, and the charterparty must be taken to have been made by persons knowing the course of business, and recognised custom at the port of discharge. And the fact that this bill of lading is not in the ordinary form, but contains the stipulation I have read, agrees exactly with the supposition of a knowledge of the practice. The case of Gatliffe v. Bourne (Bing. N.C. 314), shows that unless delivery is controlled by special limitations, the practice usually observed at the port is sufficient; and here the practice of the port of London has been followed, and, taken together with the terms of the bill of lading, absolves the shipowner from all liability after the goods have been delivered from the ship's deck. H. Graham (Thesiger, Q.C. with him) in support of the rule. The defendant's construction of the bill of lading involves a contradiction. The bill of lading says the delivery is to be to Messrs. Petrocochino Brothers or their assigns. Now the dock company cannot be either, and at the most a delivery to them is all that is proved. It is suggested that they were agents, and this would not be enough; but it is not clear that they were even agents, for they were paid by the defendant entirely. They were not employed for the plaintiffs' convenience, but for the defendants' in order that the ship might be cleared. Then the defendants do not get any receipt from the dock company, so there cannot be a complete delivery as this is not done. [BRETT, J.-The consignees do not give a receipt.] No, but the dock company were throughout treated as the agents of the defendant, and this shows that possession by them was possession by the defendants. Then the clause which has been laid so much stress on, "to be delivered from the ship's deck, where the ship's responsibility is to cease,' applies solely, as I contend, to unloading into lighters. In Catley v. Wintringham (Peake's N.P. Ca. 202) it appears that the master of a vessel is bound to guard goods loaded into a lighter sent for them by the consignee until the loading is complete. Cur. adv. vult. April 30.-BRETT, J.-This case has stood over, owing to doubts entertained by my brother Honyman; but as he will be unable to be present in court for some time to come, we must act upon our own judgment without his assistance. The action is brought upon a bill of lading: the goods of the plaintiffs were put on board the defendant's steamer to be carried from India to the Victoria Docks in London. The case was tried before me; and it appeared from the facts as established by the finding of the jury that sixty-nine bales were put on board the steamer at Calcutta, and were discharged on the quay in London; but that only sixty-eight were loaded on board the ligthers sent to receive the sixty-nine bales on behalf of the plaintiffs. The value of the |