COURT OF QUEEN'S BENCH. Reported by J. SHORTT and M. W. MCKELLAR, Esqrs., Barristers-at-Law. Wednesday, Jan. 17, 1872. WHITE (app.) v. FEAST (resp.) Wilful damage to property-" Fair and reasonable supposition" of right-Jurisdiction of justices24 & 25 Vict. c. 97, s. 52. 24 & 25 Vict. c. 97, s. 52, enacts that "whosoever shall wilfully or maliciously commit any damage, injury or spoil to or upon any real or personal property whatever, either of a public or a private nature," may be convicted before a justice of the peace, and imprisoned or fined, "provided that nothing herein contained shall extend to any case where the party acted under a fair and reasonable supposition that he had a right to do the act complained of," &c. The express proviso in this section excludes the implication of the proviso ordinarily implied in cases of summary jurisdiction, that the jurisdiction of justices is ousted by a bona fide claim of right. In order to oust their jurisdiction the justices must be shown that there are fair and reasonable grounds for the supposition that the party complained of was acting in the assertion of a right. Appellant, with thirteen other men, acting under the orders of one D., dug a ditch from forty to fifty yards long in respondent's garden, without any previous communication being made to respondent. D. in giving these orders acted under what he considered a public right, on the ground that about fifteen years before there had been a ditch over part of this ground, which was inclosed as a garden by respondent's father. Appellant having been convicted under the above section by justices, who found that he did not act under a "fair and reasonable supposition that he had a right to do the act complained of:" Held, that the conviction was right. CASE stated by justices under 20 & 21 Vict. c. 43. This was an information, dated 3rd Aug., preferred by Joseph Feast against John White, for that the said John White, on the 1st Aug. 1871, at the parish of Walsoken, in the county of Norfolk, did unlawfully, wilfully, and maliciously commit damage, injury, and spoil to and upon certain real property of the said Joseph Feast, of a private nature, to wit, the land and soil of a certain garden of the said Joseph Feast there situate, by then and there digging and cutting a certain gripple therein, thereby then and there doing injury to the said Joseph Feast to the amount of 1., contrary to the form of the statute in such case made and provided. And after hearing the parties and the evidence adduced by them, on the 7th Aug. 1871, we, the undersigned, being three of Her Majesty's justices of the peace in and for the said county of Norfolk, did thereupon convict the said John White of the offence charged against him in the said information, and did adjudge the said John White for his said offence to forfeit and pay the sum of 18., over and above the amount of the injury so done as aforesaid, and for such injury the sum of 11., to be paid and applied according to law (and also to pay to the said Joseph Feast the sum of 158. 6d. for his costs in that behalf), and in case the said sums should not be paid forthwith, we adjudged that the said John White should be imprisoned in the house of [Q. B. correction at Swaffham, in the said county of Norfolk, and there kept to hard labour for the space of seven days, unless the said several sums should be sooner paid. And the said John White, alleging that he is dissatisfied with the said determination as being erroneous in point of law, &c., we hereby state and sign this case. The defendant having appeared upon summons before us, the undersigned, to answer to the said information, it was thereupon contended on his behalf by Mr. John Walter Watson, his attorney that we had no jurisdiction to hear and determine the said information, but the said John Walter Watson did not show to us by evidence or otherwise that the said defendant acted under a fair and reasonable supposition that he had a right to do the act complained of in the said information, nor that such act was a trespass, not being wilful or malicious, committed in hunting, fishing, or in the pursuit of game, nor that the said defendant was acting bona fide in the assertion or exercise of any right or supposed right in doing the act complained of in the said information. We thereupon determined to proceed with the hearing of the said information, and it was thereupon proved before us on the part of the said informant, and we find. 1. That the said informant lives at Walsoken, in the county of Norfolk, and is the owner and occupier of a garden there, of which his father, now deceased, was the owner at the time of his decease. 2. That the said defendant lives at Leverington, Parson Drone, about six miles distant from Walsoken aforesaid, and on the 1st Aug. he came with thirteen other men, and without any communication with the said informant, forcibly entered the said garden of the said informant, and dug and cut in the land and soil thereof a gripple (which term we find and adjudge to mean a small ditch), about four feet wide at the top, and about three feet deep, and from forty to fifty yards in length, extending from one end of the said garden to the other. 3. That the father of the said informant, and the said informant (who immediately succeeded his said father) have occupied the said garden in succession uninterruptedly for thirty-six years, and there never was during that period or at any previous time, any gripple or ditch whatever upon the site of at least from fifteen to twenty yards in length of the gripple dug and cut as aforesaid by the said defendant, to wit, at that end of such gripple which lies next the road called the Silt-road. 4. That no gripple has existed for many years, if ever, upon the site of the residue of the said gripple dug and cut as aforesaid by the defendant, until he so dug and cut the same. 5. That the damage and injury done by the said defendant to the land and soil of the said garden, and to the said informant as the owner thereof, by the digging and cutting of the said part of the said gripple of the length of from fifteen to twenty yards, where none formerly existed as aforesaid, amounts to the sum of 11. And the said John Walker Watson, on behalf of the said defendant, thereupon produced and examined the following witnesses (that is to say): 1. Adam Dawson, who deposed as follows: I live at Wisbech, and know Chapel-street, Walsoken. I purchased property there in 1839; at that time there was a gripple from Chapel-street to the Silt-road, about three feet wide and a foot and a half to two feet deep; it took the surface drainage of Chapel-street when it got to the Silt-road; I don't know where it went to; at that place it passed near the property of Mr. Feast, the informant's father; there was a cart road between the gripple and Mr. Feast's property; the gripple continued there the whole way from Chapel-street to the Silt from the time I purchased the property in 1839 for twenty-two years, when Mr. Feast's father inclosed the whole of that portion which was on the south side of the property; I cannot say whether he filled in the dike or not; the dike was there when he inclosed it; I gave directions for the dike to be cut. On cross-examination : I was exercising what I considered to be a public right. I never asked Mr. Feast to cut the gripple out; I think it was a proper thing to do; I swear the gripple ran through to the Silt-road; I can't say when I saw it open last; I swear it was open fifteen years ago; I can't say whether water went down it. Mr. Osborn, the chairman of the board of health, said if we would find a drainage the board would take the road; I submitted to the drainage being closed fifteen years ago; I don't remember the gripples being first cut; I cannot remember the common being inclosed. 2. Joseph Larmet, who deposed as follows: I live in Wisbech, and know Chapel-street, Walsoken, and South-street, and the Silt-road. South-street intervenes between Chapel-street and the Silt-road; I remember a gripple in 1855 extending from Chapel-street to the Silt-road; I should call it a small ditch, 4ft. wide at the top, and two or three feet deep; I've seen water in it the whole way; it passed the property now occupied by Mr. Feast, and there was a road between it and such property for foot passengers with a hand-cart; Mr. Feast the elder inclosed his part in about 1860 or 1861; he inclosed it with boards at both ends; I expect it was used as a drainage, and inconvenience has arisen from the inclosure to the drainage, and the road was afterwards inclosed up to Chapel-street. On cross-examination : I have nothing to do with the cutting of the ditch; I speak to the best of my knowledge; the gripple was open in 1855; I cannot say when I saw water; I came to Wisbech in 1850, and since that time I saw water at the Chapel-street end. I cannot speak to the other end. The said John Walter Watson then again contended that we, the undersigned, had no jurisdiction to entertain this case or to adjudicate thereon, but he adduced no evidence before us in support of such his contention, nor was it made to appear to us in any way that the said defendant had any reason to believe, although set to work by the witness Adam Dawson, that the said Adam Dawson so employed him in order to assert or exercise any right possessed or supposed to be possessed by the said Adam Dawson, but so far as appeared before us, the said defendant was a stranger to the said informant, and did the act complained of in the information under the mere direction of the said Adam Dawson, and without any knowledge that the said Adam Dawson asserted the claim mentioned in his evidence. We therefore, upon consideration of all the circumstances of the case found and determined that the said defendant did not act under a fair and reasonable supposition that he had a right to do the act complained of in the said information, and that such act was not a trespass, not being wilful and malicious, committed in hunting, fishing, or the pursuit of game, and that the said defendant was not acting bonâ fide in the assertion or exercise of any right or supposed right in doing such act. We also found and determined that the said Adam Dawson and Joseph Larmet were in error in deposing that the gripple or ditch to which they deposed as formerly extending from [Q. B. Chapel-street to the Silt-road, extended throughout the whole of that distance, and that in fact such gripple, if the same ever existed at all in the line deposed to by them, only extended from Chapel-street to a point short of the Silt-road and distant therefrom at least from fifteen to twenty yards, and that throughout such fifteen or twenty yards no gripple ever existed until the gripple complained of was dug and cut by the said defendant as charged in the said information. Whereupon we the undersigned did adjudge and determine that the said defendant was guilty, and should be convicted of the said offence charged in the said information in manner and form aforesaid, and did adjudge that he should forfeit and pay such penalty, and should pay such compensation for the said injury, and such costs, and in default thereof should be imprisoned and kept to hard labour as respectively hereinbefore mentioned. If the court shall be of opinion that we the undersigned justices had jurisdiction or power to hear and determine the said information, and that having such jurisdiction or power we had sufficient authority upon the evidence before us to convict the said defendant of the said offence charged against him in the said information, then the conviction shall be confirmed. But if the court shall be of a contrary opinion then the said conviction shall be quashed. CHARLES CURRIE. JOHN BRAMHALL. RICHD. YOUNG. The enactment (24 & 25 Vict. c. 97, s. 52) under which the appellant was charged was as follows: Whosoever shall wilfully or maliciously commit any damage, injury, or spoil, to or upon any real or personal property whatsoever, either of a public or private nature. for which no punishment is herein before provided, shall, on conviction thereof before a justice of the peace, at the discretion of the justice, either be committed to the common gaol or house of correction, there to be imprisoned only, or to be imprisoned and kept to hard labour for any term not exceeding two months, or else shall forfeit and pay such sum of money not exceeding £5, as to the justice shall seem meet, and also such further sum of money as shall appear to the justice to be a reasonable compensation for the damage, injury, or spoil so com mitted, not exceeding the sum of £5; provided that nothing herein contained shall extend to any case where the party acted under a fair and reasonable supposition that he had a right to do the act complained of, nor to any trespass, not being wilful and malicious, committed in hunting, fishing, or in the pursuit of game, but that every such trespass shall be punishable in the same manner as if this Act had not passed. G. Bruce, for the appellant, contended that a bona fide claim of right having been set up, the jurisdiction of the justices was ousted. In Reg. V. Stimpson (4 B. & S. 301), a conviction under 24 & 25 Vict. c. 96, s. 24, for attempting to take. otherwise than by angling, fish in a river in which the prosecutor had a private right of fishing, was quashed on the ground that a bona fide claim of title to fish in the river was made by the defendant before the justices, and that there was no reasonable evidence on which they could find that it was not made bona fide. "The general rule of law," said Blackburn, J., "applicable to justices exercising summary jurisdiction, is that they are not to convict where a real question as to the right to property is raised between the parties; then their jurisdiction ceases, and the question of right must be settled by a higher tribunal; for the justices, by convicting, would be settling a question of property, conclusively and without remedy, if their decision happened to be wrong." So in Reg. v. Pearson (L. Rep. 5 Q. B. 237; 22 L. T. Rep. N. S. 126), it was held, that if on the hearing of a complaint for an assault, under 24 & 25 Vict. c. 100, s. 42, it be shown that a bona fide question as to title to land is involved, the jurisdiction of the justices is at once ousted. [BLACKBURN, J.— The real question here is whether the justices, under the proviso at the end of the 52nd section of the Act (24 & 25 Vict. c. 97), have not got jurisdiction where they are of opinion that the supposition of right was not fair and reasonable; and (2), whether they were not justified in holding that it was not.] It is submitted that whether Mr. Dawson's supposition was or was not fair and reasonable, the appellant at any rate might reasonably believe that Mr. Dawson had a right to give the order which he gave. Quite independently of the statute, whenever a question of title arises, the Jurisdiction of the magistrates ceases by a restriction placed on their authority by common law in all cases of summary convictions. Paley on Convictions (edit. 5, p. 137) says, "It has always been held as a maxim that where the title to property is in question, the exercise of a summary jurisdiction by justices of the peace is ousted. This principle is not founded upon any legislative provision, but is a qualification which the law itself raises in the execution of penal statutes, and is always implied in their construction; and so rigid is this rule, that even where a statute allows the accused to go into the question of title, he is not obliged to do so, and may object to the jurisdiction of the justices." In Leath v. Vine (30 L. J. 207, M. C.), a person charged, under 1 & 2 Will. 4, c. 32, s. 30, with trespassing in pursuit of game in the daytime on land in the occupation of a tenant to A., set up a claim of right to shoot over the land, on the ground that he and everyone who chose had always shot there till some recent acts of interruption, and declared his readiness to try the right with A., and it was held that the mere assertion of such a general right in himself and everyone else, though he really believed it, without showing any such claim of right as would be a defence to an action of trespass, did not oust the jurisdiction of the magistrates to convict under the statute in question; but Wightman, J., who delivered the considered judgment of the court, observed, "I am disposed to think that the mere belief that he had a right is not sufficient under the terms of the statute now in question to oust the jurisdiction of the magistrate, as it might under the Malicious Trespass Act." [COCKBURN, C. J.-If the proviso of the statute is more restricted than the general qualification which exists by implication in all other cases, surely we are bound to act according to what the Legislature points out in the statute? BLACKBURN, J.-If the general qualification is to be implied here, the express proviso of the statute would be rendered useless.] Hudson v. MacRae (4 B. & S. 585) was also referred to. Finally, the word "wilfully," in the 52nd section of the Act, taken as it is, in connection with the word "maliciously," must mean something more than intentionally. Thesiger, for the respondent, was not called upon. COCKBURN, C. J.-I think we need not call on Mr. Thesiger. Our judgment must be for the respondent. Without at all questioning for a moment the truth of the general proposition, that [Q. B. in cases where summary jurisdiction is given to justices for trespasses or similar matters, there must be an implied restriction on their jurisdiction where there is a bona fide claim of right, yet it is quite competent to the Legislature to qualify that general proposition, and to cut it down within such limits as they think proper; and I think we must adjudicate on this on the terms of the statutory enactment. When we look at it we find that it comes to this-that a person shall be liable to be summarily convicted where he has committed, wilfully or maliciously, damage or injury to the property of another, and that he is not entitled to call on the magistrates to hold their hands if he has entertained, upon unreasonable grounds, the opinion that he was justified in what he was doing, although he may have honestly believed that he was justified in doing the act; because the Legislature has chosen to put only such a restriction on the jurisdiction of the magistrates. It is expressly enacted that in order to oust their jurisdiction there must have been fair and reasonable grounds for the supposition that the party was acting in the assertion of a right. That being expressly stated by the Legislature as the limit of the magistrate's jurisdiction, it is not for us to extend the limit. The general rule applies here, that that which is expressed gets rid of that which would otherwise be implied. Then comes the other question whether the magistrates were justified in finding that the appellant had no fair and reasonable ground for supposing that he had a right to dig the ditch. In my opinion there was abun dant evidence on which they might come to that conclusion. It is said that, inasmuch as the appellant was employed as a mere labourer by another person to do the act in question, he was justified in supposing that there were fair and reasonable grounds for the order given him by Dawson. But I cannot assent to that proposition. I think it cannot be a just ground for holding a person exempt from the jurisdiction of the justices. The appellant can be in no better position than the person who employed him. We will suppose, in his favour, that he inquiries, before he does what would be an act of trespass, of the person who employed him, on what grounds the act ordered would be justifiable; and let us suppose, further, that his employer states to him the grounds on which he gives the order. If the grounds alleged are not fair and reasonable grounds, then the servant can be in no better position than the master. Now, it appears here that about fifteen or sixteen years ago there was a similar ditch existing and even as to that there is some evidence to the contrary-a ditch into which the water lowed, either accidentally or of right, which latter there is no evidence to show. About fifteen or sixteen years ago it was stopped up, without any one asserting a right to have it open. After such a lapse of time the appellant comes with twelve or thirteen other men employed by Dawson-without any notice whatever being given to the respondent, or any prior assertion of right-into the private garden of the respondent and cuts cpen the ditch in derogation of the legal right of the respondent. On such a state of facts I think that the magistrates were fully justified in coming to the conclusion at which they arrived. I quite agree that the magistrates cannot give themselves jurisdiction by finding as a fact that for which there is no evidence. But where there is evidence, and the conclusion is a reasonable one, we cannot interfere. I think their decision on the point was right, and our judgment must therefore be for the respondent. BLACKBURN, J.-I am of the same opinion. It is an inaccurate phrase to speak of a common law restriction on the summary jurisdiction of magistrates, for the very excellent reason that there is no summary jurisdiction at common law. All summary jurisdiction is the creature of statute. But this principle has existed for several years; that inasmuch as questions of title to lands are questions of much difficulty, it must be considered, unless there is something to show the contrary, that where a statute gives summary jurisdiction, there is an implied restriction on that jurisdiction wherever a question of title to land is bonâ fide raised before the magistrates. They are in such a case to hold their hands, probably because they are not well fitted to decide such questions. Where it appears from an Act of Parliament, as in the case of the Highway Acts, that it was not the intention of the Legislature that such a restriction should exist, this rule does not apply. justices are not bound in such a case to hold their hands, though that will not prevent the question of title being afterwards raised. There is a series of decisions establishing another rule, that an act cannot be a crime unless there is a mens rea. If, therefore, the person doing it believes that he had a bona fide right to do it, there is to be no conviction for a crime, because of the absence of the mens rea. The If the intention is to protect property from injuries done even by innocent persons, as in the case of a trespass, as distinguished from a guilty act, this rule applies. In the present case the words of the 51st section of the Act of Parliament are "Whosoever shall unlawfully and maliciously commit any damage, injury, or spoil, to or upon any real or personal property whatsoever, either of a public or private nature, for which no punishment is hereinbefore provided, the damage, injury, or spoil being to an amount exceeding 51. shall be guilty of a misdemeanour, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labour." Then comes the 52nd section providing that "whosoever shall wilfully or maliciously commit any damage, injury, or spoil to or upon any real or personal property whatsoever, either of a public or private nature, for which no punishment is herein before provided, shall, on conviction thereof before a justice of the peace, at the discretion of the justice, either be committed to the common gaol or house of correction, there to be imprisoned only, or to be imprisoned and kept to hard labour, for any term not exceeding two months," &c. To this a proviso is added that "nothing herein contained shall extend to any case where the party acted under a fair and reasonable supposition that he had a right to do the act complained of, nor to any trespass not being wilful and malicious, committed in hunting, fishing, or the pursuit of game, but that every such trespass shall be punishable in the same manner as if this Act had not passed." It is noticeable that "wilfully and maliciously," in the 51st section, is changed to " wilfully or maliciously" in the 52nd; and also that, in the case of hunting, fishing, or the pursuit of game, any trespass not malicious is exempted from the operation of the enactment. If the "or" were to be read [Q. B. "and" the first part of the section would be most insensible, but, read as it is, the section has a very sensible meaning. It seems to me that it was purposely provided that a distinction should be made between a trespass wilful or malicious and one which is both wilful and malicious. And we must remember that many of the injuries to property, wilful, but not malicious, are done by very poor persons, against whom it would be absurd to proceed by civil actions in the Superior Courts; the remedy would be worse than the disease. It was desirable, however, to provide remedies for the protection of property in such cases; but, at the same time, it was not desirable that the poor man should not be dealt with in the manner provided by the statute, where he has a bona fide claim of right; and the Legislature has not given the magistrates jurisdiction to decide on that claim, whether it be a well-founded claim or not; but the Legislature has trusted them with the power of determining whether the supposition is a "fair and reasonable" one or not: and of convicting where any person does such an injury to property wilfully without any reasonable ground for the supposition that he has a bond fide claim of right. The real thing is the power given to the magistrates to grant compensation to a certain amount to the party injured by the wilful act of another, whether the act so done be done under a bonâ fide claim of right or not, if it is not founded on a fair and reasonable ground, the words of the proviso being, that nothing contained in the section shall extend to "any case where the party acted under a fair and reasonable supposition that he had a right to do the act complained of." I can read these words in no other way than as giving the magistrates a right to decide whether the supposition acted on is a fair and reasonable one or not. The decision of that point is to be within their jurisdiction. Taking this to be the proper view of the construction of the statute, the question next arises, were the magistrates right in determining that the appel lant in digging this trench was not acting under a fair and reasonable supposition of right? He was hired to dig the trench by Mr. Dawson, and he does not seem to have made any inquiry, but simply to have done what he was ordered to do by Mr. Dawson. I am far from saying that that might not in many cases be a fair and reasonable ground for so acting. I might put the case of a farmer ordering one of his labourers to dig up an adjoining hedge, an act which might, so far as the farmer was concerned, be a wilful injury to the property of another; but the labourer might well say, "I had a fair and reasonable ground for sup posing that the farmer for whom I was working had a right to order me to do the act," though. in fact, the farmer had no such right. But where we have to deal with the case of a man who simply says to another, "Go and dig a ditch in my neighbour's garden," we must at once see that that is not a similar case. If Mr. Daw son had shown a fair and reasonable ground for a claim of right, that would, I think. extend to those persons who acted under his directions or orders. But what he says comes simply to this, "I had a right to dig this ditch, and in doing so I was exercising only a public right; and the reason why I think I had a fair and reasonable right to do so is that about fifteen years ago there was a ditch open there. About that time the persons occupying this place stopped up the ditch and enclosed it, and turned the gripple as well as the cart road into a garden for himself; and because, more than fifteen years ago, there was a ditch de facto existing there, I have now a right to make a common sewer of the place." The justices were quite right in holding that this was an unreasonable supposition of right. At the trial of a civil action at Nisi Prius, Mr. Dawson may possibly make out such a case as he has set up; but, so far as the case came within the jurisdiction of the magistrates, we cannot say that they were not at liberty to come to a different conclusion. I fully agree with what my lord has said as to the calling in of twelve other men, and the high-handed manner of the whole procedure. MELLOR, J.-I am of the same opinion. Wherever a statute creates an offence of this description, and also enacts a proviso as to the restriction which is to be placed on the jurisdiction of the magistrates, we are not at liberty to imply any other restriction on that jurisdiction. There is no doubt that in some cases the reasonableness of the conduct of the person doing the act is involved in the words "bona fide claim of right," but there may be a bonâ fide claim of right in some cases where there is no reasonable ground for the claim. The jurisdiction of the magistrates is ousted only where there is reasonable ground for the supposition, and as to the existence of such reasonable ground in the present case I entirely concur in the observations which have fallen from the other members of the court. QUAIN, J.-I am entirely of the same opinion. I think that the appellant must show to the justices that he had a fair and reasonable ground for supposing that he was acting in the assertion of a claim of right. He can here be in no better position than Mr. Dawson himself, and I can find no evidence whatever that Mr. Dawson had a fair and reasonable ground for the supposition that he had a right to cut a ditch through the private property of the respondent. In his direct evidence he says he cannot say whether the respondent's father filled in the dike or not. In cross-examination he says he cannot say whether the water ever went down it; and his only witness says "I expect it was used as a drainage." I think such evidence shows no reasonable grounds, on the face of the case, for Mr. Dawson's supposition that it was used as a common sewer. I think, therefore, that the respondent was right and that this appeal must be dismissed. Judgment for the respondent. Attorneys for appellant, Jenkins and Abbott, for Watson, Wisbeach. Attorneys for respondent, Wing and Du Cane. Monday, Jan. 22, 1872. REG. v. HARRALD. Married woman-Right of to vote at municipal | election-32 & 33 Vict. c. 55, s. 9; 33 & 34 Vict. c. 93. Married women who are such at the time the burgess list is made, are, notwithstanding 32 & 33 Vict. c. 55, s. 9, disqualified to vote at municipal elections. Sect. 9 of 32 & 33 Vict. c. 55, which enacts that in the Municipal Corporation Acts," words importing [Q. B. the masculine gender, shall be held to include females for all purposes connected with and having reference to the right to vote in the election of councillors, auditors and assessors," removes only the disqualification previously existing on the ground of sex, and does not affect the disqualification arising from marriage. The Married Women's Property Act (33 & 34 Vict. c. 93), does not remove the latter disqualification. Semble, that a woman who is single at the time she is put on the burgess roll, but marries before the election, is disqualified to vote. In this case a rule had been obtained by Herschell calling on Charles Harrald to show cause why a quo warranto information should not issue calling on him to show by what right he exercised the office of town councillor of the borough of Sunderland. It appeared from the affidavits that at an election of town councillors for the borough of Sunderland, held on 1st Nov. 1871, Charles Harrald was elected for the Sunderland ward by a majority of one over the next candidate. Amongst those who voted for him were two married women. Mrs. Thompson and Mrs. Storey. Mrs. Thompson, at the time she was put upon the burgess roll was a married woman, but lived apart from her husband, and occupied a house and paid rates as a single woman. Mrs. Storey was a single woman at the time she was put on the burgess roll, but married about ten days before the election. Crompton showed cause against the rule.-Sect. 9 of 32 & 33 Vict. c. 55, empowers women to vote at municipal elections. That section enacts that "in this Act and the 5 & 6 Will. 4, c. 76, and the Acts amending the same, wherever words occur which import the masculine gender, the same shall be held to include females, for all purposes connected with and having reference to the right to vote in the election of councillors, auditors, and assessors." There is nothing whatever in the Act to prevent a married woman from exercising the municipal franchise: the words are quite general, applying to all women, married and unmarried alike. The first of the two women, therefore, was not disqualified to vote. As to the second, she was unmarried at the time she was put on the burgess list, and was then clearly entitled to vote. Can a marriage occurring subsequently, and before the next burgess roll is made out, deprive her of that right? The effect of marriage is simply to transfer her property to her husband; but suppose a male had transferred, after being put on the burgess roll, the property in respect of which he had been put there, would that have disqualified him to vote? It clearly would not, and why then should an act which has merely the same effect, disqualify a woman? The roll is conclusive as to those persons who are entitled to vote, and it has been decided that you cannot question by quo warranto against the person elected, the qualification of a person who has been put there: (Reg. v. Tugwell, L. Rep. 3Q. B. 704)-"I think," said Blackburn, J., in this case, the Legislature intended that the burgess roll should be conclusive. By sect. 15 of 5 & 6 Will. 4, c. 76, the overseers are to make out the burgess list which must be duly published. By sect. 17, persons omitted from the lists may claim to have their names inserted, and the names of persons not entitled to be on the list may be objected to, and the town clerk is to make out lists of claimants 66 |