The next case mentioned in the papers is that of Fleurant, but nothing was said about this case at the hearing.

The case to which the greatest importance seems to be attached is that of Eusebe Laurin. This was said to be undue influence exercised by paying Laurin money to engage men to go to the poll on nomination day to "keep order" as it was called. The money was paid by Mr. Ouimet; it was employed in part at least for some such purpose, and the balance was offered back to Mr. Ouimet, who said, "restez tranquille. On réglera plus tard." There is nothing to connect Leblanc with this proceeding. There was some misapprehension as to whether this money was offered to Mr. Ouimet or to Mr. Leblanc, but must have been to Mr. Ouimet. Laurin's evidence makes this certain. He says at page 98 that the language used was as I have mentioned, adding: "Comme je vous ai dit tantôt." Looking back to what he had said before, and to which he refers, we find (p. 74) that it was Mr. Ouimet who said this, and not Leblanc. We are not called upon to say whether this money was used corruptly or not as long as Mr. Leblanc is not shown to be connected with the payment of it.

The next case is that of Camille Leclaire. This was an alleged promise of a place to Leclaire to induce him to vote for Leblanc, and also the subsequent giving of a place to him to recompense him for his work in the election of 1882. All that is proved is that Mr. Ouimet was using influence on one occasion with Mr. Mousseau to get him to fulfil the promise of a place previously made by Mr. Loranger, who had represented the county; and Mr. Leblanc, who was not even a candidate at that time, happened to be present. We therefore consider that the recriminatory demand made against Mr. Leblanc in these particulars is unfounded.

Then there is a general pretension that there was an organization to supply money for this election, and that Mr. Leblanc must have known of it. We are of that opinion also; but to that extent merely; and no further. There is no evidence of his personal knowledge of the manner of using that money, except where some of it was used lawfully. For instance, he must have known that money was supplied by Mr. Hughes. He himself got some, and paid part of his deposit with the returning officer, as he might legally do, with money he got from Mr. Hughes and Mr. Quimet; but he is not connected personally, as far as we can see, with any objectionable or corrupt expenditure of that money. We therefore acquit Mr. Leblanc of the charges in the counter-petition.

The next part of the case relates to the proceeding taken by Mr. Gaboury against Mr. Ouimet, This, too, was taken at the same time, and was produced with the answer and served upon Mr. Ouimet, who appeared under

reserve, and moved to reject the demand made against him, and which prayed for his disqualification. That motion was granted by Judge Mathieu, and we all agree it was properly granted. Another notice, with a copy of the bill of particulars against Mr. Leblanc was afterwards served upon Mr, Ouimet, and that notice was allowed to remain in the record for whatever it might be worth. There appears to have been some misapprehension as to the ruling of Mr. Justice Papineau upon Mr. Ouimet's motion to reject this second notice. However that may be, we have now to consider whether the section 270 of the Quebec election act reaches Mr. Ouimet, who is not alleged to have been a candidate at the election of 1882; but merely to have acted in the interest of the candidate who was Mr. Leblanc. The sections of the act to be looked at are from 269 to 274 inclusive. Sec. 269 disqualifies any candidate who may employ any person as a canvasser or agent, knowing that such person has, within eight years, been found guilty of any corrupt practice by any competent legal tribunal, or by the report of a judge.

Sec. 270 disqualifies any person found guilty of any corrupt practice in any proceeding in which, after notice of the charge, he has had an opportunity of being heard.

Sec. 271 merely relates to the cessation of the incapacity where such person is disqualified upon the testimony of witnesses subsequently convicted of perjury.

Sections 272, 3 and 4 supply the means to be used and the proceedings to be taken before a party can be found guilty of corrupt practices, entailing both on himself as well as on the candidate who may employ him, consequences so serious and so penal. The majority of the court think that these sections must be taken together. We find that under 272, 273 and 274 a regular summons to appear at a place, day and hour fixed, must be issued We find that if the party fails to appear, he may be condemned on evidence already adduced on the trial of the election petition; but that if he does appear, the case is to go on as an ordinary case, and judgment, after hearing, is to be given on evidence then to be adduced. We find it difficult to conceive that all these safeguards should be provided if the party could be found guilty after a mere ordinary notice. We think that the words "after notice" in this section are mere matters of course, signifying that no judgment finding a person guilty of corrupt practices could be rendered without notice. We are strengthened in this view by the fact that our sections 272-3 and 4 are not found in any of the provisions of the English Statute. The English statute, however, does contain very much the same provision as our section 270. The Parliamentary elections act of 1868, sec. 45, provides that " any person other than a can

didate found guilty of bribery in any proceeding in which after notice of the charge he has had an opportunity of being heard (the same words as our English statute) shall be disqualified; and in the Bewdly case (1 O. & H. 176) Blackburn, J., held that the mere report of a judge did not disqualify an elector under sec. 45. He said: "The report of a judge is not a determination of the case, except incidentally. He has only to make a report, and it can hardly be said that that is the same as finding a man guilty.

This decision of Blackburn, J., was referred to with approval by the select committee appointed in April, 1870. In the opinion of the committee the distinction between found guilty' and reported guilty is substantial and

not formal.

Again, the sec. 3 of the amendment of the Quebec Controverted Elections Act of 1875 provides for certain cases where agents may be condemned jointly and severally with the respondent to pay costs. Even in such cases as that, the judge is ordered to summon the agent, and if he does not appear he may be condemned on the evidence already adduced; but if he does he can only be condemned upon evidence and after hearing as in an ordinary case, and in the same way as provided in sections 272, 273 and 274. If such are the care and circumspection of the law with respect even to a condemnation for costs, we may well conclude that we do right in exacting at least the same, before we disqualify any man from sitting in Parliament or holding office under the crown.

The result, then, of our labours in this protracted case need now only to be shortly stated. We avoid this election, and to that extent grant the prayer of the petition, with costs against Dr. Gaboury up to the time of his admission of the sufficiency of the evidence to justify that decision. With respect to the proceeding of the petitioner to disqualify Dr. Gaboury, we dismiss that part of the prayer of the petition; but with respect to costs, exercising the powers conferred on us by sections 123 and 124 of the Election Act, we consider that although Dr. Gaboury is not disqualified, the proceedings against him for that object are far from being capable of being considered vexatious; but rest upon prima facie grounds. He made an illegal payment to a person other than his regularly appointed agent-a payment which has led to the principal difficulty in deciding this case; and we condemn each of the parties to that part of the case to pay his own costs. As regards the contest between Dr. Gaboury and Mr. Leblanc respecting the conduct of the latter the recriminatory demand of Dr. Gaboury is dismissed, each of the parties also paying his own costs.

Finally, as respects the charges against Mr. Quimet, a majority of the court holds that he

is not before the court at all, and being in the position of a man who has been improperly brought here, we dismiss the charges against him, and he is entitled to his costs against the party who brought those charges. We hold, (that is, Mr. Justice Buchanan and myself hold,) that there is all the difference possible between saying that a man may be found guilty after notice, and saying that the notice alone can put him upon his trial, especially when we find the precise mode of proceeding presented in the next section but one. We think with Blackburn, J., that there is a substantial difference indeed between finding a man guilty, which would subject him to the penalties of guilt, and reporting what the evidence may prima facie prove against him-upon which report a prosecution might afterwards lie in which he could defend himself. But we can report without any notice; whereas we hold we cannot find guilty upon a notice alone, and set aside the prescribed mode of procedure in the statute. We say, therefore, that Mr. Quimet has been proceeded against with a view to his disqualification illegally, and that having to appear and show the illegality of that proceeding, he is entitled to his costs against the party who took that proceeding, and we condemn Dr. Gaboury to pay those costs.

The Court desires to add one word-not of complaint, nor yet exactly of remonstranceboth of them words that are unpalatable; but we feel that some observation is called for on professional and on public grounds with respect to the useless and extraordinary complexity and confusion of these proceedings. Two heavy folio volumes of evidence, without division or classification of subjects, would seem to be too much to require as a general thing in order to reach the truth in a Provincial election petition. The hearing of this evidence, easily and advantageously reducible to one-third of its present bulk, took one judge of this court very nearly two months from the performance of his ordinary duties, while to say nothing of incidental motions and arguments requiring the services of three other judges at various times, the present members of this court have been sedulously intent, for one whole week, to the exclusion of all other business, upon the grounds of final investigation and decision of this case. If the exact measure of justice, under such circumstances, has not been awarded in every sub-detail of the endless intricacies of this case, the fault will not have been entirely ours.

Boisvert for Petitioner.

Election annulled.

Trudel & Co. for Respondent Gaboury.
Boisvert for mis en cause Leblanc.
Cornellier for Ald. Ouimet.

In the case of Choquette & Hébert (p. 178) Dorion, C.J., did not sit.

In the present issue we report the case of The Montreal City Passenger Railway Co. and Parker, in which it was held, that where a railway in a street of a city is properly constructed and operated, the company are not liable for damages caused by the wheel of a vehicle coming into collision with the rail. A similar principle was laid down by the Supreme Court of Illinois in a recent case— Chicago & Eastern Illinois Railroad Co. v. Loeb (March 26, 1884), noted in the Chicago Legal News. The ruling of the Court was that a railroad track laid upon a street of a city by authority of law, properly constructed, and operated in a skilful and careful manner, is not in law a nuisance, which is abatable. A railroad, or the operation of it, is not to be and should not be abated. It is built for the accommodation of the public: this is the object which justifies the exercise of the power of eminent domain; and the public welfare demands that there should not be a discontinuance of the operation of a railroad.

EXECUTION OF CRIMINALS.

We think, says the London Spectator, it to be demonstrable that so long as the sentence of death is retained—that is, so long as the nation retains its present creed, and feels for society more than for the individual-three conditions as to the method of inflicting it should be resolutely maintained. The mode of execution adopted should be sudden, it should visibly shatter the corpse as little as possible, and it should be held by opinion to be itself disgraceful, and no method except hanging fulfils all those conditions. Sudden death, could, of course, be inflicted in a hundred ways, many of them more rapid than the noose. Shooting, if the heart is pierced, or the brain, is probably as rapid as any. The guillotine is swifter than the hangman, despite some doubts as to the instantaneous loss of the victim's consciousness, and it

would be easily possible to employ agencies more rapid than either. There are poisons too rapid in their action for pain, and one of them could be administered, we believe, during sleep. Electricians can prove, we are told, that the electric fluid moves more rapidly than sensation does, and hold it therefore probable that an electric shock sufficient to kill instantly would never be felt by the criminal at all, death preceding sensation, a view borne out, so far as such views can be, by the usual testimony of those who have received and survived a stroke of lightning. Any one of these methods, therefore, would be as satisfactory, so far as the suddenness and the absence of any approach to torture is concerned, as hanging; but the first two diminish that respect for the body which the whole history of brutal assaults shows it so necessary to maintain, and which is, we think, the true objection to that ghastly but painless mode of execution, blowing from a cannon; and the third is liable to make an objection of its own, that it is not wise to make death for crime much more painless than natural death usually is. We should not make it painful, but we should not artificially reduce its terrors. The awe with which the punishment is regarded would be gravely diminished by the use of painless poison, such as Athenians used, while a new doubt would be begotten among the ignorant as to the reality of its infliction. They would begin talking of strong sleeping draughts, and of the drugs which could produce apparent death-that is, catalepsy-without actually killing. It is most important that no colour should be given to such stories, and important, too, not to degrade science by making it an accomplice in the executioner's task, as it would be if the electric battery were employed. Men ought not to lose the sense that there is something rough and brutal about capital punishment, that it is essentially a last appeal to force in its most direct and savage form, when every other means appear from experience to have failed. We greatly doubt, moreover, whether the multitude would believe in the painlessness of death by electricity, and whether the lightning stroke would not evoke that shudder of sympathy with the condemned which so utterly "demoralizes the guillotine," and which the idea of torture, in

this at all events, never fails to elicit in England. There would be too much the air of a scientific experiment in every execution, and a single instance of failure would, till the ra- | pid increase of murder recalled the peeple to themselves, be fatal to the punishment of death.

NOTES OF CASES.

COURT OF QUEEN'S BENCH. MONTREAL, May 27, 1884. DORION, C. J., MONK, RAMSAY, CROSS and BABY, JJ.

THE MONTREAL CITY PASSENGER RAILWAY CO. (deft. below), Appellant, and PARKER (plff. below), Respondent. Montreal City Passenger Railway CompanyObstruction authorized by law-Liability for accident.

DORION, C. J., (dissentiens) said the case appeared to him to be entirely a question of evidence, and after hearing the case twice argued he was unable to concur in the judgment of the majority of the Court.

RAMSAY, J. A very important question arises in this case, and it is the nature of the appellant's liability. It cannot be questioned, I think, that a tramway, in a street used for other vehicles, must be a source of danger; but it does not follow from that, that every accident caused by this increased peril must be put to the company's charge. They have certain powers conferred by law, and if they only exercise these powers in a lawful way, those who come in contact with them do so at their peril. We have therefore to inquire whether the construction of the railway was in conformity with the law, and whether it was in good order. It seems to me that both of these questions must be answered in favor of the company, appellant. The terms of

attempted to make some show of proof that the company, sensible of its wrong-doing, had hurriedly repaired its line. The little evidence in support of this breaks down from want of precision. The inspector of the road says it is not true, but that the road was repaired a few days before and a few days after as usual, and he tells us that it is repaired constantly in this way. The majority of the Court is to reverse with costs.

MONK, J., remarked that his first impres sion was that the case did not admit of much difficulty, and, after a very careful reading of the evidence, he came to the conclusion that the action was completely unfounded. The track of this railway might be an obstruction and inconvenience, but it was an obstruction permitted by the law. It was established that the rails were laid according to the mode of placing them in Philadelphia. There was no pretension, in fact, that the mode of laying the rails was different from that prescribed by the law. Then, again, it was proved that the road was in perfectly good order. People had been crossing the road at this place over twenty years; it was the same rail that was first laid, and no accident had ever happened. The waggon on which the plaintiff was sitting must have been going too fast. It was im

possible to suppose that he could have been precipitated twenty feet if the horse was going at a walk.

The judgment is as follows:

"Considering that on the 25th day of June, 1881, the appellants were not in default or in the wrong as regards the quality or pattern of the iron rails they had used in the construction of their railway at the south-western corner of the Place d'Armes, where the said railway makes a curve in departing from the line of Notre Dame Street, and turns in the direction of the St. James street at right angles from Notre Dame Street, but that said rails, as well as that part of the roadway which the appellants were bound to maintain, were lawful and sufficient;

"And considering that it was not by any fault, omission or neglect on the part of the appellants, that on the said 25th of June, 1881, the respondent was thrown out of the waggon in which he was being driven while crossing the track of the said railway at the said curve, whereby he sustained the injuries for which he seeks to recover damages in this

cause;

"And considering that the driver of the said waggon, while so crossing the said track at the time and place aforesaid, failed to exercise the necessary caution and prudence, to which he was bound on the occasion in question, and might by the exercise of reasonable caution and prudence have avoided the accident by which the respondent was so injured;

"Considering that there is error in the judgment rendered in this cause by the Superior Court at Montreal on the 28th June, 1882, the Court, etc., doth reverse, etc., the said judgment, and proceeding to render the judgment which ought to have been rendered, doth dismiss the action of the respondent with costs," etc.

Judgment reversed.*

Abbott, Tait & Abbotts for appellants.
Lacoste, Q.C., counsel.

Lanctot for the respondent.

De Lorimier, Q.C., and Geoffrion, counsel.

In the case of the same Company, appellant, and The Montreal Brewing Company, respondent (an action for damages to the vehicle), a similar judgment was rendered.

A

SUPERIOR COURT.

MONTREAL, May 31, 1884.

Before TORRANCE, J.

SURPRENANT V. GOBEILLE. Libel-Privileged Communication. report made by a foreman in the course of his duty, and without malice, respecting men in his gang, which caused the men to be discharged, is a privileged communication. This was an action of damages by a man dismissed from the service of the Canadian Pacific Railway Company, on the report of the foreman over him. The plaintiff complained that the report was false and malicious.

The report bore date the 2nd August, 1883, in these words: "I have four men in my gang that I do not want any longer; if you want them anywhere please let me know and I will send them to you—or give me permission to discharge them. They are: F. Suprenant, one of the regular section men: him it is for trying to make trouble with the men while on duty, and the others E. Darbin, L. Darbin, and F. Gravel, for backing him up." In consequence of this report, the plaintiff was discharged.

PER CURIAM. The facts show that the defendant made his report in the course of his

duty, and without malice; and, moreover, communication. Lawless v. Anglo-Egyptian with reason. The report was a privileged Cotton Co.; A.D. 1869, 4 L. R. Queen's Bench, 262; Dewe v. Waterbury, 6 Supreme Court R. 143, A.D. 1881.

Plea maintained and action dismissed. H. Lanctot for plaintiff. H. Abbott for defendant.

PRIVY COUNCIL.

LONDON, April 7, 1884. Before LORD BLACKBURN, SIR BARNES PEACOCK, SIR ROBERT COLLIER, SIR RICHARD COUCH, SIR ARTHUR HOBHOUSE.

CALDWELL, appellant, and MCLAREN, respondent.

Stream floatable in part-C. S. U. C., cap. 48Right of using improvements.

The intention of the legislature in enacting C. S. U. C., cap. 48, sec. 15, (12 Vict. cap. 87, sec. 5), was to give to owners of higher