App. Div. 1919 Sutherland V. R.M. of considered for we expressly found that the tax-enforcement proceedings were not valid and the mere elimination of a declaration of invalidity of assessment and taxation does nothing more than leave the formal judgment without any declaration on the point, and nothing could be deemed to be decided except what is shown by the reasons. I understand counsel for the defendant, however, to be willing to have inserted in the Harvey, C.J. formal judgment a declaration that will remove any doubt and I have no doubt that can be arranged between counsel. No. 519 (No. 2) Plaintiff's more serious objection is to the disposition of the costs. There was no argument on this with the general argument and we thought it right that we should hear and consider any objections before formal judgment is signed. See Leonard v. Whittlesea, 13 Alta. L.R. 550, [1918] 3 W.W.R. 215. We directed that the costs of the appeal should be borne by the plaintiff. He objects to this on the ground that the defendants were only partially successful. If that objection were good then it should apply to the costs of the action which were allowed to the plaintiff, though he succeeded only in part and that by no means the most substantial part of his claim. I see no reason for altering the disposition of costs in this respect. However, we directed that the costs of the appeal should be set off against the costs of the action and any excess of the latter set off against the taxes due on the land. It is contended that we have no right to order this set-off as it interferes with the solicitor's lien. Our Rule 20 as to costs provides that: "A set-off for damages or costs between parties may be allowed notwithstanding the solicitor's lien for costs in the particular cause or matter in which the set-off is allowed." The Court of Appeal in England held in Bake v. French (No. 1) [1907] 1 Ch. 428, 76 L.J. Ch. 299, 96 L.T. 496, that this Rule did not apply to different actions or proceedings. The same Court, differently constituted in Reid v. Cupper [1915] 2 K.B. 147, 84 L.J.K.B. 573, 112 L.T. 573, 59 S.J. 144, 31 T.L.R. 103, while considering itself bound by the former decision, expressed dissent. They held, however, that the right to set off, as between different proceedings, was in the Court in its discretion, regardless of the solicitor's lien, apart from the Rule. It is pointed out in that case and by Younger, J. in a later and very carefully considered judgrent in Puddephatt v. Leith (No. 2) [1916] 2 Ch. 168, 85 L.J. Ch. 543, 114 L.T. 1159, 60 S.J. 568, that the solicitor's lien, so called, is not a lien in the ordinary sense of a charge on property in possession but is a right to acquire a charge on property of the client but not on property of some one else and that, unless the costs become the costs of the client, there is nothing to which the lien may attach. It is pointed out that it might be manifestly unjust to make a solvent person pay costs owing by an insolvent where the latter is indebted to him. We are not bound by the decision in Bake v. French, supra, and are quite at liberty to accept the view of the same Court in the later case but it is unimportant to decide the real intention of the Rule because it is clearly held to be a matter of discretion. There is no doubt that the set-off of costs of the appeal against the costs of the action is authorized and in my opinion, it is proper. I feel little doubt also that if the defendants had a judgment against the plaintiff for the taxes it would be within our discretionary right to set the costs off against them, but the defendants have no such judgment and, while the action was in respect of the taxes, and their validity as being properly imposed on the land, its determination did not involve the consideration of the personal liability of the plaintiff for those taxes. This aspect did not present itself to us when making the direction we did, and inasmuch as it may be that the plaintiff is not personally liable for the taxes, to make him pay part of them by a credit of costs due him, would be to compel him to pay some one else's debt, which would be manifestly unjust. I would, therefore, on this ground and not on any consideration of solicitor's lien, modify the direction as to costs by eliminating the direction of set-off against taxes. There should be no costs of this application. Direction as to set-off of costs modified. App. Div. 1919 Sutherland V. R.M. of No. 519 Harvey, C.J. 1919 Feb. 1 [CONTROVERTED ELECTION FOR ELECTORAL DISTRICT OF BOW RIVER] RE BOW RIVER ELECTION GOUGE V. HALLIDAY Elections-Nomination of Candidate for House of Commons -Sufficiency—Dominion Elections Act, S. 40—Nomination Paper Signed Intside Electoral District-Absence of Additions of Nominators-Error in Place and Date of Signing-"Affirming to" Before Justice of the Peace, Etc.-Meaning of─Whether Evidence of Must be Given to Returning Officer-Petition to Unseat-Dominion Controverted Elections Act, S. 12-No Candidate Declared Elected within 40 Days after Polling-Effect of Impossibility of Complying with Act-Right to Raise Question at Trial-Effect of Amendments by Ch. 13, 1915 and of The Military Voters Act, Ch. 34, 1917 (Dom.). It is not necessary that the signers of the nomination paper of a candidate for election to the House of Commons should sign it within the electoral district in which he is a candidate; and the nomination paper is not defective merely because the additions of the nominators are not given or because of a clerical error in stating the place and date of signing. (Per Walsh, J.). In sec. 40 of the Dominion Elections Act, R.S.C., 1906, ch. 6, which provides that in Alberta any four or more electors "may nominate a candidate by affirming to and signing, before a justice of the peace * a nomination paper in form H," the meaning of “affirming" is a verbal corroboration of, or acquiescence in, the act of nomination evidenced by the writing. So long as the paper is so affirmed to and signed in the presence of one of the officials named in the section, the requirements in such respects are complied with, and when a nomination paper which has in fact been affirmed to and signed as required by the Act and is in other respects regular has been accepted and acted upon by the returning officer, the nomination should not be declared null and void merely because no evidence of the facts of the affirming and signing before the prescribed official appears upon or accompanies the nomination paper (Per Walsh, J.). A returning officer is wrong in receiving a nomination paper which shows on its face that it was affirmed and signed before a barrister who is not shown to be a justice of the peace, magistrate or the returning officer: Two Mountains Dominion Election; Fauteux v. Ethier, 47 S.C.R. 185 (Per Simmons, J.). A petition under the Dominion Controverted Elections Act, R.S.C. 1906, .ch. 7, to unscat a candidate must be filed within 40 days after polling day, but the Court has no jurisdiction to entertain it if at the date of filing no candidate has been declared elected. The result is that if such declaration is not made until after the 40 days, no petition can be effective (Yukon Election Case; Grant v. Thompson, 37 S.C.R. 495, followed). The amendments made to the Dominion Controverted Elections Act by ch. 13, 1915, and the enactment of The Military Voters Act, 1917, ch. 34, do not affect the law in this respect. Under the new sections, 19 and 19 (a), enacted by ch. 13, 1915, such question as to the jurisdiction of the Court may be properly raised at the trial of the issues (Per Simmons, J.). Petition to unseat the candidate declared elected to represent the electoral district of Bow River in the House of Commons of Canada. Petition dismissed with costs. The petition was heard by WALSH and SIMMONS, JJ. O. E. Culbert and J. E. Varley, for the petitioner. A. Macleod Sinclair, K.C., for the returning officer. WALSH, J.-The petitioner was a candidate at the election held on December 17, 1917, of a candidate to represent the electoral district of Bow River in the House of Commons of Canada. The respondent has been returned by the general returning officer as the candidate elected at the said election. The petitioner alleges that the respondent was never legally or properly nominated as such candidate, that the returning officer for the constituency declared him to have been so nominated, and so informed the Clerk of the Crown in Chancery and included his name as one of the candidates in the election notices posted up by him and caused his name to be printed on the ballot papers which were used in the said election and afterwards added up votes purporting to have been given for the respondent and made, signed and sealed a certificate stating that 2,996 votes had been given for the respondent at said election within the electoral district, which he afterwards transmitted to the general returning officer. All of these acts are alleged to have been done by the returning officer wrongfully and improperly and it is said that by reason thereof he has made a wrong, undue and unlawful return in connection with the said election. It is claimed that, because of this, all votes purporting to have been given for the respondent at the said election were null and void and that as the petitioner had Walsh, J. 1919 Re Bow Gouge V. Halliday Walsh, J. 1919 Re Bow Gouge V. Halliday more votes than either of the other two candidates who were in nomination he is entitled to the seat. The facts shortly are: That what purported to be nomination papers of four candidates including the petitioner and the respondent, accompanied by the necessary deposits, were delivered to and accepted by the returning officer within the prescribed time, that the names of these four candidates appeared in the election notice published and on the ballot papers prepared and distributed by him, that on January 7, 1918, he certified that there had been given within the electoral district, 2,996 votes to the respondent, 2,967 to the petitioner, 1,447 to the candidate Galbraith and 299 to the candidate Reid and immediately thereafter transmitted to the general returning officer this certificate and all the books and papers which the statute directed him to so transmit. On March 16, 1918, the general returning officer certified that of all the votes cast in this election, both within and without the constituency, the respondent had received 3,757, the petitioner, 2,996, Galbraith, 1453, and Reid, 312, and that the respondent was the member elected for the electoral district. This petition was filed on January 24, 1918. Four objections are taken to the validity of the respondent's nomination paper: (1) That it was not signed within the electoral district. This is true in fact. There are 20 signatures on the paper. Nineteen of them were made in Calgary which is not in this electoral district. There is nothing in the Act requiring the nomination paper to be signed within the electoral district and we were not referred to any authority in support of the proposition that to give it validity it must have been so signed. The statute requires it to be signed by four or more electors. A man does not lose his status as an elector simply because he is temporarily absent from the electoral district. These men were just as much electors of the Bow River district when they were in Calgary on the day and for the purpose which brought them here as they ever were and I think that their signatures as such could be just as validly appended to a nomination paper without, as within, the constituency. |