THE WAIRAU SEAT.

Marlborough Express, Volume XLVI, Issue 75, 25 March 1912, Page 3

THE WAIRAU SEAT.

(Continued; from-Bag© 2.) ker, buo of Ilealy or some other iriend of Mr Duncan's, it was open to Parker to do what ho chose with his own cars. We do not &nd reasons for treating the evidence as incredible ; oti the contrary^ we find it to bo true. If true it pioves that in this case there was neither payment nor contract for payment within section An attempt w.is made to show that Parker really received consideration for the usd of his cars. The suggestion was that respondent had lent Parker his own car, and that Parker had made money out of it. Mr Wificn, who was a candidate, stated that he had a conversation with Parker I»efore tho first ballot. Parker told him that he could not expect any 'A his (Parker's) cars, as they were all •arranged for by Mr McCallum; that Mr McCallum had made it plain that he could not pay him, but he-would lend him his car whenever he ruquiv.€d it, and that he had lent it the other day, and he (Parker) made four pounds (£4) out of it. Such a statement by*r .Parker is not evidence against the respondent. It shows, however, that respondent was' alire to the danger of making any payir.ent, and it shows that Parker at that date made the same statement about tho terms on which his cars were lent as that which lie now makes. It is hardly to be supposed that rspondent was so bimple as to fail to apprecinte the fact that such 9 transaction would amount to payment, and it is difficult to suppose that he would deliberately enter into it. Respondent says that he has on some occasions lent Parker his car; I>ol that this had nothing to do with iiis getting cars for the election. We &cc no reason to doubt this (statement, whether Parker made money out of fcho car or not. A similar allegation was made with r&i'eronce to cars supplied by' Etheibert Henry Best. Respondent's return shows £2 10s and £11; 2s. paid ior the hire of motor-cars. No.charge arises out of these hirings. Best say.s that on each polling day thero was a car running in>rospondcnt 5s interest taking voters to the - poll.;, He_" says that.no charge was "made, that thej*o, cars Svo'ro given gratuitously. In his book a charge appears to have been made. He says'that his clerk, knowing nothing of the arrangement, entered the usual charge without his instructions. ~ Assuming that the mode in which those entries are made and oblaeiated o.r altered tends to .shake his evidence; we find that these arc matter? about which respondent knew m/thing. Here, as in the case of Parka's cars, we see no reason to doubt the truth of evidence. Ho tolls us tjhat Best lent his, cars free of charge'on both these

days. "We now come to the alleged hire o vehicles from the McKenzie Carrying Company, Ltd. Tins is registered a a "private company. Thoro is a Hoar* of Direcfr.-rs consisting of three per sons, ' Messl-s i Nosworthy, Pike, an« C. W. Parker, of whom Mr Nos worthy was chairman.. The compan; held its first, ar.nual meeting on Is October 1909. Since then it has hel< annual, half-yearly, and-special meet ings, the last of" these having bee.i held on 23rd February, 1912. Be tween the date of the first annun meeting and December 19th, 1911 <.»n]y two meetings of directors appea by the minute-book to have beei l*eld. During the-greater part of tin year 191J Mr Hogan was manager o the livery stable. -His 'salary wa ■CIBO. a year, and hs has recently re Finned to better himself. ' ,It is no' tr>o nrtzsh to say that he was entrust et\ with or assumed the vrhoh management of the business of let ting veiiicles. Several of the com pany's vehicles were used on botl rolling days. Respondent and_ Ho gan bolli s-ay that there was an ai langement to supply such vehicles a; th*l company could spare gratu* toasly. The threo directors of thi •company state that they never heart of this arrangement until quitw to ctutly, and never sanctioned it. Qsv orally the 3" admit that Hogan hat very extensive powers. Rcspondeir that ho never knew or had air reason i.) know who the , director: v'tre. Rtj did business with the corn pany through-Hogan, and never say uny of fch-cse- gentlemen about th< premises. He, however, frequentl; r,aw there E. S. Parker, who hat formerly owned the business, and ; Mr Goodman, who had once nianaget it. E. S. Pai'ker held three-fourth: of the> capital of the company, namely 3000 shares of £1 each. Each direc tor held 200 or 100 shares. Goodmai was mortgagee of. the company's pre raises fur £1000, and though this gav< him no right to interfere, that ;fac *nd old association probably account ed for Iris being often about thi premises. Respondent, having sue cessfully negotiated'for the cars witl E..-S. Pnrker, not unnaturally turnei to him and endeavored to make ; similar arrangenient for the con< pany'.s vehicles. He says that Parke leferred him to ■ Hogan, and Parke: confirms this. Farker says that h< declined to interfere in any way witl Hogan, who had the full manaigomen of the stable. Respondent states ii the most positive terms that he ar ranged.with Hogan for the use of th x'ehicles for the- election, and express ly arranged that this should be with out payment or contract for payment This part of the case occupied th attention of the Court for a ver; long time Hogan was examine! with great minuteness. He sub'stan tially confirms respondent's state nxent on. this head. Much reliane was pluc«d on the fact that on Jan vary 25th. 1912, an account for £3 16s 6d wjis rendered to "W. H. Macej chairmaa of respondent's committef This'account gave details of .the vehi ■rles used on both polling days and c the charges for each. Macey at one showed it to rcspojident^ and iinmt diately afterwards, under responc t.riif-'s advice, returned it with a mem endorsed- "I know nothing of thii "William H. Macey." Hogan attempi +o accon»it for this. It is in th ■Oompany/s practice usual to enter a <rders given in advance for convej ;snces in a counter book. This wa not done* in this case. It is also xn ital for the stable foreman to ente all vehicles sent out in the stabl \<tok. All these vehicles were so er tbred agninsl Mficey.' It is usual fo liogan then to tell the foreman Avha charges are tO'be.set against, eac vehicle. Theso entries were nfl uiade. The practice is for the bool "keeper to cany these entries into regnlav book. This was done, an her© for the first time the charge jipr.ear. Hogan says that they wer entered tnero at his dictation. It i Tiot tho y.-ractico to enter the charge in a ledger, but; the account is mad out in duplicate. Oue copy is son to the customer, and^ the other \ fiied. A U tbima fln.nli.catr>!? fro evr lifmih. bound up in a book v.hie

serves as a ledger. It was objected that Hogan had no authority, actual or presumed,. to enter into such an ■ arrangement. We- are, however, sr.tisfi.ed that he did in fact enter into '' it. It is not suggested by respondent that it was expressly repeated as to the second ballot; but we are satisfied that leoth respondent and Hogan assumed.that it related to the whole election, as the reasons applicable in the one case were equally applicable in the: other. It was further contended that both bj' reason of Hogan's want; of authority and because such an arrangement made wholly without; consideration could not reasonably be hold to extend to the second ballot, respondent had in fact and in law •created such a situation tha£ apart irom tlie question of illegality he 1 could be sued by the company and ] could bei oompelied to pay for the use i <>1 the vehicles. We are satisfied that Iso long as ho acted honestly a person iri respondent's position was not ! bound to look beyond Hogan in any arrangement he might make. He did not know who the directors were, an 1 as a matter of ordinary usage no person dealing with such a company ever goes or is expected to go beyond tho manager in apparent .charge, of th«> whole business. It may be that a peison making so exceptional an arrangement involving a very substantial amount does lay himself open t<) the risk of incurring a liability if he does not go bej'ond the manager. W<? do not, however, think that any such question arises for our decision. If. apart-from the question of illegality, , theY respondent has rendered himself liable to pay the company for the use .of the vehicles-j it is because his agreei mont or arrangement such as it was ) made wholly without consideration, ; and that therefore especially as to the day of the second ballot it cannot jho set up as an answer to the liabil- ! %ty impliedly incurred. That liabil--1 ity, if it arises, sn-is-es out of what is ! commonly oallei and implied contract 'to pay for tho vehicles because respondent has used them. Such _ a i liability orises irrespective of the in- . tention to contract, and may arise against tito wish or intention of tho. party bound. What is for convenience called an implied contract . is more usually an imputed relation to which the lules as to liability applic- . able to contracts are applied. Id does not necessarily involve the niak-' ; ing of a contract. Then does the j statute) apply to such a case ? Section 220 is au'enactment creating a penal offence^ It cannot bo applied to everything that tho Court may consider to be within the mischief aimed at. It must bo interpreted in the ordinary way according to the language used by tho Legislature. Sec- , tion 220 nins: "No payment or contract for payment shall, for the purposes of promoting or procuring tho election of a candidate at any election, be mado.—(a) On account of the conveyance of electors to or from the poll whether for the hiring of ■■ special trains, steamboats, or car- ; viages', or for railway fares or otherwise." It .is then declared that any person who-, in breach of this section, either before during or after an election, makes any such payment or contract, commits an offence for which he may be pixnished. We are satistied, upon his own evidence, confirmed by Hogan's. that respondent^never intended to make a contract or in any way to render himself liable to pay for the vehicles. The term contract is used in the ordinary sense in.the section, and must be interpreted, in the ordinary way, not''as referring to an obligation arising out of circumstances such as are here in evidence, but as describing an actual contract . made^ by the party. Such a conti-act ,im not only not proved, but is liega-' tived. ■'.■•■-." In this instance, as in others, the question- under investigation was complicated by the conduct of a person other than the respondent. Ho- : gan's whole mode of doaling with the ; matter' was suspicious, and objection-" ' able. Respondent, . however, bad T-othing to do with the internal affairs of the "company or-with. Hogan's relations with his directors. The state of Hogan's records tended in part at least to contradict his evidence. His conduct may hatve be'en l irregular and incompatible with a proper dis . charge of his duty to his directors. , There is, however, nothing to cois- ! nect the respoudcut witli this.^ It i may be that the respondent; consider- -,' ing that he is a solicitor, gave altogether insufficient attention to the ' "übjeob of binding the company to : tho'arrangement. That, however, is i not the question into which we are i enquiring. That question is whether ,he made a contract for payment for ■ these vehicles, and to that question ."! our ans-ver must be in the negative. I As.the circumstances of the hiring by Hogan for the company of two sets of horses and drivers to supply two of the company's vehicles, tllese aa-e matters which Hogan thought fit ito arrange himself. We do not find I that in this. Be was acting as agent ' for the respondent*. We need not 1 decide whether such an- arrangement ■: would in itself come within section 220, as to which there may well be a doubt. Finally, we may observe that it is quite possible that Hogan, de--1 spite the explicit arrangement for the gratuitous use of the vehicles, retained in his own breast some kind of hope that in course of time he might receive a voluntary payment for i them.' We have nothing to do with such a. hope; but its existence might help to account for the way in which he kept his records, and these observations may also possibly apply, tc Parker and Best. . ! CHARGE RE EXCESSIVE j . EXPENSES. ,; , ■ The 15th a.nd 16th paragraphs oi the petition charge Mr McCallam , that his expenses of the first balloi i exceeded £200, and of the second balloi I exceeded £50. Particulars were asked for and supplied with respect tc these charges. The particulars allege that the respondent had a paid secre- ; tary, Mr Bull, to whom the responi dent paid or was liable to pay a re- ! muneration for his services, and thai i the respondent was liable to pay tc 'Mr Bull a large sum of money noi ! set out in the accounts which tthe re- !. spondent had delivered to the Re- | turning Officer.,. The petitioners i charge that the respondent has omit- : ted from his account three separate ! sums of £50 which they-allege he paid ;to the three persons named in the I particulars. Th© petitioners stat« ■ that they believe the respondent has i made or,is liable to make many other , payments in respect of the election iof which they have no knowledge, but S which they proposed to elicit from the respondent and his agents. There is absolutely no evidence in support of the allegations set out in paragraphs 15 and 16 of the petition and in the particulars. Three speci- , fie payments are mentioned in the J particulars. It might have been expected that the petitioners would have shown somo foundation for the grave and specifis charges set out in

the particulars. " Payment of ex- • penses in excess of the amount allowed, by the statute is not1 only an illegal, but a! corrupt practice. It is ■ in a high degree improper that such i charges should be made without some ■ ■ solid ground to support them. j CHARGES RE MORRISON. i I With' respect to paragraphs 17 to ' 23, which relate to the employment ! of Frank Morrison, the petition states : i that Morrison was promised money by : McCallum and Macey, the- chairman ' of McCallum's committee, to , induce i him to procure McCallum's return 'and to procure the votes of'electors ' in favor of McCallum at the f second ! ballot. The petition goes on to al!,lego that McGallum ■and-Macey either ' i directly or by an agent paid Morrison : money after the electioij in considera- '■ tion of his endeavors on McOallum's • behalf. It is also alleged that tho "•! respondent and Macey ■.jy-ere guilty jof an illegal practice "<in engaging j Morrison for payment or promise of I payment to act as canvasser. Before ! the first ballot Morrison had worked i foi* Wiffen and was chairman of his [ committee. At the first ballot Wiffen" j was lowest on the poll, and' therefore I out of the second ballot. On the : Sunday after the first :ballot Macey came to Morrison's; house' with the view of enlisting his services on behalf of McCallum, His object, of course, was to secure for McCallum at the second ballot the votes of those who had voted for Wiffen at the first ballot. Morrison agreed to work for McCallum'at the second ballot, and did work for him. McCallum, Macey, ] and Morrison all state upon their I oaths that no promise of payment was j made, that there was no understanding that there should be any payment, and ' that no payment was made. Bull, who" acted as secretary for, McCallum at the election, produced the accounts which he had. paid on behalf of McCallum, and stated that he made no other payment, beyond the payments mentioned in the accounts. These payments do not include any payment to Morrison. .Morrison, however, admits that he stated to a : number of persons that he was being j paid. Morrison has given us his rea- i sons for thus misleading people who j he says appeared unduly curious. We ! are not concerned -o consider whether \ these' z'easons were good or'bad. Wif- , fe^n says that on the Monday before the second ballot Morrison came to Kirn and asked him if he would mind i him working on behalf of McCallum. j Vv iffen said that Morrison said "that j Macey had called upoiy him (Morri-' son) on the Sunday night, and said that if he would consent to work for McCallum ho would undertake to pay him' £1 per day. Morrison said that the fund from which he was to be paid was some fighting fund. Wiffen declined to advise him. It was suggested on behalf of the petitioners that it was extremely improbable that j a laboring man,\ as Morrison was, i would w/ork for nothing. On the side of the petitioners, therefore, there is this improbability, together with the i statement made by Morrison, not on j oath, to several persons that he was i receiving payment, including - what Mr Wiffen says Morrison said to him. On the side of the respondent there is the sworn evidence- of all the persons implicated that there was no pro- j mise of payment or. payments. There > is also the improbability that Macey,, in breach of the Act would engage' for payment a»man'whb just before had been working actively in opposition to McCallum. With respect also to the improbability of a man in Morrison's position working gratuitously, it is certain that he had just before been working gratuitously for Wiffen. The petitioners' case, therefore, is supported _by unsworn and circumstances giving rise fo suspicion. The respondent's case rests upon the sworn testimony of all the persons implicated, -contradicting the unsworn statements of Morrison, and also by considerations which to some extent weaken the circumstances of suspicion. Where on the one side there is the sworn evidence of persons 1 whose characters are unimpeached, and, on the other unsworn statements ' and suspicious circumstances, the former must prevail. In our opinion the charges relating to Morrison have not been made out. PETITION FAILS. The above observation applies to ;. the bulk of the charges in the peti- , tion. It is not a question of oath against oath, but only of- circum- , | stances giving rise to suspicion against i ! the sworn testimony.of. persons whose . j character is not impeached. In such I \ circumstances, in order to override ' j the sworn testimony the circumstances . ; must give rise, not to mere suspicion, L but to certain^- That is not the I case. here. If it had been, the incvit^p.l able conclusion would have been that ' ; McCallum and Macey at any rate r i -would have been guilty of wilful and ■ (corrupt perjury. We are, satisfied- of , j the truthfulness of the- evidence of » : both these witnesses. . .. I We are of opinion that the case I ■'; for the petitioners has failed, and that p ; Mr Richard McCallum has been duly ■ ; elected. We shall report accordingly I to the Honorable the Speaker. l ! The Court orders that the peti- ; turners do pay the respondent the I ! cost of and incidental to the petition - i and the trial thereof, to be taxed by c the Registrar pursuant to the rules.