RESIDENT MAGISTRATE'S COURT.

PIOTON, December 18. 1 (Before 3. Allen, $*%., U.M.) 1 S\VAN Y \VICK V. STMS. j j Complaint that defendant on the ith j day of December, ISB2, at Picton, m the < Colony aforesaid, wilfully omitted to , declare Samuel Swauwick to have been ! duly elected as Mayor of the Borough of Picton, he (William Syms) being the Returning Officer for the said Borough. Counsel for complainant, Mesars Conolly and Son. The defendant conducted his own case. Mr John Conolly addressed the Court on behalf of complainant: Ho then called Thomas Younger, Who ort oath deposed that he was Town Clerk for the Borough of Aictoii. ; He knew the late Returning Officer, Mr Green. He produced a copy of the "Marlborough Press," wherein appeared a notice from Mr Green, as Returning Officer, that an election would talie place for the office of Mayor of the Borough of Picton j that the Nomination would take place at ttie \Borbugh Connoil Chamber at Picton on Wednesday, the loth day of November, at noon. On the nipruing of the lfith^of Ifoyember he attended at the Borough Council Chamber, and was there until after 12, noon. Mr Green did not come to the Chamber; he died the same morning at his residence at Pictoni about an hour before he should have attended to his duties as Returning Officer. Mr Green did not appoint him or anyone else m writing before bis death to act as his substitute. He attended at the Chamber to look after the books and papery,. Danng the morning* .and about half-past "eleven/ Mr SwaSwick'came into thiPouncil Chamber with Mesars Thomas Williams and' Thomas La vv? They "asked for a form of nomination, a blank cheque, and am ;enyelop"e.|] fle gave '.MfrfSwaiiwieW'tn'es'e"articles'; 'rind ti4 saw Mr Williams fill . dp : the \ nomination > paper and sign it. He also saw Messrs Law and Swanwiok? sign ' it# --Mr"' Swanwibk- drew out a cheque for £10 .as the deposit required on being nominated as a candidate. He -, ( \|r signed cthe- certificate at the foot of the nomination" paper that the said nomination paper had been received at 111 55 a;m'.;; and'Bighert it for the Returning Officer.,, but he had no proper authority to' do so. He signed it' Under <3 misapprehension;' i The nomination, paper and .the^cijeque for £10 were put into , an' envelope and addressed to the Returning Officer, and left at the Borough Chamber. There wa3 a meeting of the Borough Council on the 20th November, at which meeting Mr Syms was appointed Returjaing "Officer, m place of Mr Green, deceased." He wrote an official notice of this ' Appointment, and gave i^to. Mr Syn>|.A:9ejprodnced~thejninutg; book of the Borough Council,, showing L'.il appointment b{ Mr Syms'.- He was aware that Mr Syms hod canvassed for this appointment:: the Mayor. had informed him of this fact. He (Mr Younger) did not receive any other .nomination papers on the ' morning bt the 15th, ' nnd did not believe' any other person had been nominated. 'jHe'did not .open, the letter containing the nomination paper left by Messrs .Swanwiok and Williams. He had taken charga. of the letter until' Mr Syms had called and taken it away. Some short time after the 15th, Mr Swanwick came and deposited with him £10 m cash, with instructions that if the Returning Officer wonld not take Ihe obeque he was to hanc him the, cash. The cash was not brought tirhitn, until the following day 1 .; Mr.Swariwick did not take away the letter containing the nomination paper until about the 9th of-Decembcr. He produced ,ti\e.Burg^sßollf showing Mr Swanwick rf name appearing thereon. ■■'■■■■ .\ '\ . Alfred Thomas Card, on oath, deposed : He was. proprietor 1 of. the " Marlbotbush Press." He remembered publishing a notice from Mr Green, late Returning Officer, concerning au election for Mayor of the Borongh of. Picton m November last. The paper produced was a copy of the " Press" m which the notice appeared. He also produced the original' notice m writing given to him by Mr Green, and signed by Mr Green. He could swear to tlie handwriting! ' ' ' '/. Samuel Swanwick on oath, deposed : He was a bn'rgess of the Borough of Pioton, a candidate for the office of- Mayor. of Kofon, and the complainant m this •. case. , , The evidence of the^ witness at this point was merely a recapitulation 'of the 'Evidence of Mr Younger, concerning') going to the Council /Chamber, .obtaining a form of nomination, a, blank cheque, and an envelope, nnd filling m the nomination paper and cheque for £10, and ... after the _ nomination paper was signed^ by Mr Younger for the Returning J Offiter, 'placing -ithe same, together with the cheque, jn the envelope, and addressing it.to the Returning' Officer and leaving it at 'the Borough Council Chamber with Mr Younger. He had heard of Mr Green's death before he arrived at the Council Chamber, but did not consider it was* , necessary, , for ,any Returning Officer to be present personally to receive nomination papers. He went afterwards and left cash for £10 with Mr Younger, i to give the Returning Officer should he ohjebt' to' receive ttie cheque. He knew that Mr Syms was appointed as Returning Officer on the 20th November. He had seen Mr Syms several times sinoe that date, once with his solicitor, Mr John Conolly, and .they had l^ofh pressed him to declare Mr Swanwick duly elected. He promised M > consider ' the ; niatter. They had pressed for, a date to be named, lint could get nothing but evasive replies. Mr Syms would Jeither say; yes nor no to their demands, so he gave instructions to hisj solicitor^ tq : summons. Mr jSyms for neglect of duty. He (Mr.Swanwick) was the only person-nominated on the 15th, and he considered it was the duty of Mr Syms,- when appointed Returning Officer, to declare him elected. He believed Mr Byrns had not taken the required declaration until some time after the date of his appointment, but this was his own neglect, and ought not to be brought as an excuse for neglect of duty. . MrSyms had taken away the envelope containing his nomination aud hia deposit cheque of £10 some short time after his appointment. : He had not objected to the cheque or returned it, he had simply done nothing, and this action was taken m order to punish him for neglect of duty. This was the case for the complainant. Mr Syms addressed the Court, drawing attention to two or three points of law. He acknowledged having neglected to declare Mr Swanwick duly elected, but he had done so fiom a conviction that he had no pcwer to comply with Mr Swanwick's request. Seveial points of law were named, amongst others that the deposit of a cheque was not a legal deposit, and, therefore, the nomination was null and void. That he had only taken the declaration some few days ago, and not having taken the declaration required on the 4th of December, he could not have acted on that date. That the day of nomination was fixed by his predecessor on the 15th of November, and that, as only one person was nominated, the Returning Officer should, on that day, and at the place named m the advertisement, have deolared the only person nominated to be elected. The section stated that the Retnrning Officer shall do ceitain duties on such a day and at such a place. The language was not permissive, and he considered he could not lawfully perform these duties on a future date. That, as the Returning Officer, Mr Green, died on the morning of the nomination day, and had not appointed a substitute, there was no election under the circustances, for there was no one to open the nomination papers, or to net m this matter. William Syms then on oath deposed : He was defendant m this case, and now Returning Officer for the Borougli of Pic-

tOQ- His appointment had been proved. He wris appointed on the 21st November. He 1 Hid not take the declaration until after tile date on which the offence was said to havebeeu committed, tie had opened the nomination paper. There was only one person nominated, but his nomination was informal. He declined to declare Mr Swanwick dnly elected mayor of Picton, for this declaration should, if made at all, have been made on the morning of the 21st of November last. He denied having canvassed for the appointment as Returning Officer. He had no further evidence to call. Mr John Conolly addressed the Court on the points of law raised by the defendant, and claimed to have proved his case: The R,M. said> m dealing with this ease, lie wished both parties clearly to understand the position he occupied that morning. Certain powers are given to Magistrates under the provisions of Regulation of Local Elections Act, 187 G. He had not now to deal with the question of the legality of any election under section 48 to j8 of the said Act, but he had solely to deal with the complaint now before the Court. Defefendant had bean, charged ; with :a: wilful ; neglect of duty, under provisions of section 44 of the aaid Act, m not declaring Mr .Swan wick, the complainant, duly elected as Mayor. 1 From the evidence it would appear that - no such charge could be brought against • the defendant prior to the ,20th of Nov., ! for it was clearly shown that on this date i the defendant wa.B appointed .by the i Conncil as Returning Officer for the borough. With regard to the defendant's ■ plea that he could not hays acted on the < 4th of December (the date named m the 1 information), for the ; reason that he did 1 not take the necessary declarations until ■ some days ! after) this date, 1 this plea • would not hold good, duppposing that it_had had anything to do with the ' case. It really has nothing to do with the question at issue. This point was I mentioned m order to show that the law ' upon this poibii waViS'iollows :— That if ' agy [Psrßon]WJs a^poinjted^ojud^aasurned ■ tffhbld 'tiny official position, fie was oivilV ! and criminally responsible from the date ; of his appointment..- There was no donbt i m this.'os»WJ&4tlMr^.%psj\patf to all " intents and purposes "Returning Officer. > from' the dale.of nSHce'df ! nis'-'app6Tnt- ; > ment by the 'Council; the' Slat November, 1 and his plea of not having taken the ' proper, .declaration witrald. not Bave ( him • frdm^a'nyoli&rg'e'df-negiecif. Tne^ifestion ' of enclosure ortf ehM'neinipraeV'dfioiiafi 1 fbt i theuElO [deposit: might -probablyl be - Bome\yhat,in defendant's favor, supposing 3 tfiat^fljjs bad anytfcingjib do, with/.the ' question a't : issu# blithe was. lpcliriearto 1 ■ think it" had 1 very 'littltf 'bearing on the' 2 case. There is no doubt /that cheques : are not lawful tender, but the question at ; issue. mow. y w inQt l wb;ether/,the l npmin--1 gtion.' yyas . ygoodi pr'.^bad. .buVl'.has - Mr Sy iris neglected ' his J 'duty " m" pot' 1 declaring Mr Swanwick 'iluljr elected? ' It has been admttted-and proved that the i late RetlirningtOffieef jMr Greerij was'diily ' appointed. 1 -! That pfeVfdagtd -his death he - inserted the neoeesairy'.notice concerning - the election of a Mayor for the Borough of t Picton.! t TKattWdate fixed iorituetobmiW« o b.-H«?\?.P» on^he 15 l tb ?^yembe,r s last, and the placa, of nomination the Bot rough, Council, CKamSerJ, ,Pictpn, r That c nnforthn<itely about atr h6u'rbefofe J Mr i Green Bho-ulij h.ave attended jto his duties r as Returning Officer ieWd; 'and had not 1 lawfully appointed'-any Bub'stitute.' "(That!, t therefore, ,atJiooni6n the 15th November - there was, ipifaetno Boturning Officer m ■ existence to undertake tlie necessary work. • shown m evidence onlj one person ndmi--2 nated toflllj thatuvacancy. that mere was' only 'one nomination, for '• Hr younger, ptated,, that he, did not know i of any other nomination pap'erliaying'been i previously-handed in/i •Now.'bn'oarefnlly 5 reeding over the Act he found that section f 7 provides that tho Returning'Offieer 'ihall r undertake certain duties. ; But if, from I any. cai.sp ,-/jj&.< ,is ..<-; unable to do • those^ • dntiesj '■he ;" slidlV< .by <s^'osmiing i under his hand, appoint^' a substitute i and sectioii"ji3 . that if the } numbe'roF oandulates does'not 'exceed the . number of i vacancies :to i ibe filled the Re--3 turning. .Officer ihall. at Ihe^pUux .aid on i tltfffifW apptinm declare ajieh 'can,---i diflate ilaly.'eleo'ted 1 ; ands'ection li pros Vides vttia't any Returning Officer, or 3 deputy, is guilty./)?. wilful or v neligent f act of commission or. omission he is 9 li4ble,to,a.Dena)tyq£ not, morQ. than £50. f The'plea'o^dbTeWant 1 itfttiat'he^ cannot -6e changed with 'any offende of lthis. kind • ouitbe^iy fixed ; fp(,the l nomipatjion by . his predecessor, for he was not appointed c until nearly a week' after thisidate, and i that as;tHßre 'was' only only one nomina- , tion,tp;fj|j the one vacancy (supposing i that one nomination valid) he would not r have been justified m taking upon himI self to declare Mr Swanwick duly elected I on any subsequent date, for the proi visions of s«etion 13 are perfectly clear I that m the cases like the one now under ' consideration the candidate shall be de- ■ dared duly elected on the day of nomina- ; tion. He was inclined to agree with this ' part of ,019 plea, .. ..As'far as .he could dis- ■ cover 'there was no' provision made for > extending the rime at which peri sons coul.i be declared duly elected nnder these circumstances, and the section 13 i appeared to be mandatory, not permissive. ' It is true the Returning Officer might 1 probably, nave token upon himself j the responsibility, of, ; at :a subsequent Jdate, declaring the one candidate duly elected, but he did not see that he was forced m any way to take ''such a stap, or that he ' should he charged with neglect of duty i for not doiug so. I .And the Borough ' Council or the Returning Officer would -probably have haiUo validate .suoh proceeding by an application to the Governor 1 m Council under section 12 of "tne Municipal Corporations .Act, 1876. The 1 argument/Ka'd-beenf raised, Tten the Returning Officers might' do just as they like, and throw whole districts into confuswnby refusing ,to v a9t v 'He could only say that if the fear of instant dismissal and a fine of £50 would not keep them straight, there, might be something m such an argument as this.' On the other hand, he failed to. see the wisdom .of making too free a use of this section 12. If 'defendant had, on a' subsequent date, declared Mr Swanwick to be duly elected, it wou'd not have been by misadventure or accident, as provided m section 12, but a deliberate contravention of the provisions of section 13 of the Regulation of Local Elections Act, 1876. And this position he did not see he was called upon to occupy. He considered, therefore, the complainant had failed to prove any wilful or negligent aot of commission or omission contrary to the provisions of the Regulation of Local Elections Act, 1870. Complainant to pay costs, 28s.