or notices respectively required by the Act to be given by him, the revising barrister shall call upon the person objected to to prove that he was entitled on the last day of July then next preceding to have his name inserted in the list of voters, in respect of the qualification described in such list. Then the 100th section, which prescribes the mode of transmitting notice by post, enacts that "it shall be sufficient in every case of notice to any person objected to in any list, &c., if the notice so required to be given as aforesaid shall on or before the 25th of August be sent by post, free of postage, &c., directed to the person to whom the same shall be sent, at his place of abode as described in the said list of voters; and, whenever any person shall be desirous of sending any such notice of objection by the post, he shall deliver the same, duly directed, open, and in duplicate, to the postmaster, &c.; and the postmaster shall compare the said notice and the duplicate, and on being satisfied that they are alike in their address and in their contents, shall forward one of them to its address by the post, and shall return the other to the party bringing the same, duly stamped with the stamp of the said post-office; and the production by the party who posted such notice of such stamped duplicate shall be evidence of the notice having been given to the person at the place mentioned in such duplicate on the day on which such notice would in the ordinary course of post have been delivered at such place." This section has no application to the service of the notice upon the overseers. That is dealt with by s. 101, which provides, "that whenever any notice is by this Act required to be given or sent to the overseers of any parish or township, it shall be sufficient if such notice shall be delivered to any one of such *overseers, or shall be left at his [*59 place of abode or at his office or other place for transacting parochial business, or shall be sent by the post, free of postage, or the postage thereof being first paid, addressed to the overseers of the particular parish or township, naming the parish or township, and the county, city, or borough respectively to which the notice to be so sent may relate, without adding any place of abode of such overseers.” Thus, two modes are prescribed for sending notices to overseers,—one by delivering the document to any one of the overseers, or leaving it at his place of abode, or at his office or other place for transacting parochial business, the other, by sending it by post addressed to "the overseers" of the particular parish, &c. [BYLES, J.-May not a service by the post be proved, where it has come to hand, without having recourse to the machinery provided by s. 100?] It is submitted that it may; and that it is quite immaterial how the document reaches the overseers, if it be proved to have actually reached them in due time. If the overseer be present, and produces the notice, and declares that he received it in due time, what more can be required? In Bishop, app., Helps, resp., 2 C. B. 45 (E. C. L. R. vol. 52), 1 Lutw. Reg. Cas. 353, it was held that sending a notice of objection to the party objected to, by the post, pursuant to the directions of the 6 & 7 Vict. c. 18, s. 100, is a sufficient substitute for giving the notice to the party, or leaving it at his place of abode, as required by s. 7; and therefore, where a notice was posted under s. 100, in sufficient time to reach the party, according to the ordinary course of post, on the 25th of August, it was held that such service was sufficient, notwithstand

ing that the actual delivery was accidentally delayed until the 27th. In Jones, app.. Innous, resp., 17 C. B. 290 (E. C. L. R. vol. 84), a notice of objection to a county vote was addressed "to the overseers of the *parish or township of B.," without adding the county, as re

*60] quired by the 6 & 7 Vict. c. 18, s. 101: the notice, however

having been found to have reached the hands of the overseers before the 25th of August, it was held that the notice and service were sufficient. And in Godsell, app., Innous, resp., 17 C. B. 295 (E. C. L. R. vol. 84), the overseers having acted upon a similar notice, by inserting the name of the party in the list of persons objected to,-although it did not appear when it reached their hands,-the court again held the notice and service to be sufficient, saying, that, in the absence of any finding to the contrary, they would assume that the overseers had done their duty. In the analogous cases, which may be referred to, of motions to set aside proceedings for want of due service of process, it is not enough for the party to swear that he has not been served with the writ: he must state further that the copy left did not come to his possession or knowledge: Phillips v. Ensell, 1 C. M. & R. 374.t

David Keane (with whom was Bridge), for the respondent.-The decision of the revising barrister in this case was perfectly correct. The question presented for his decision, was, whether or not the process for bringing the party objected to to defend his right to be upon the register was properly served. That process is provided by the 17th section of the 6 & 7 Vict. c. 18, which requires the objector, amongst other things, on or before the 25th of August, to give or cause to be given to the overseers a notice of his objection to the vote of any particular person. A notice in the required form was in this case enclosed with others in an envelope, which envelope was addressed to "the overseers of the parish of St. Anne, in the city of Westıninster." [ERLE, C. J.-And duly came to their hands.] The case so

finds: but none of the *directions for the transmitting of notices

*61] by post contained in the 100th section of the statute were followed. In many cases, the law has recognised the service of notices by post, as in the case of notice of dishonour of bills, for instance. But, with respect to these notices, the legislature has thought fit to superadd something to make the service effective: and those who choose to adopt the statutory mode of service must take care to follow all the requisitions of the statute. The legislature evidently intended that the time of service, where the notices are transmitted by post, should be placed beyond doubt, by making the post-office stamp the medium of proof, so as to have a reliable record of the transaction. It is no answer to say that the overseers have acknowledged the receipt of the notice, and have acted upon it by publishing the name of the party in the list of persons objected to. It may be that the legislature were desirous of putting it out of the power of the overseers to indulge their political feelings by making a partial selection of notices which have arrived too late.

THE COURT intimated, that, as the next case was substantially the same, they would hear the argument for the respondent in that, and then (if necessary) hear the appellant's counsel in reply upon both before pronouncing their opinion. See the next case.

*County of MIDDLESEX.

[*62

HENRY SMITH, Appellant; WILLIAM ALBERT JAMES, Respondent. Nov. 15.

Notices of objection to a voter for the county of Middlesex were sent to the overseers, by post, enclosed in one envelope, addressed "to the overseers of the parish of Acton, in the county of Middlesex," pursuant to the 101st section of the 6 & 7 Vict. c. 18, and were duly received and published by them :-Held, that this was a sufficient service; and that the objector was not bound to show that he had complied with all the requirements as to posting in s. 100.

Quere, whether the provisions of s. 100 as to service of notices by post, apply to notices to overseers?

AT a Court held at Brentford on the 28th of October, 1861, for the revision of the lists of voters for the county of Middlesex, John Anthony Cotes objected to the name of George Henry Hayward being retained on the list of voters for Brentford. The name of George Henry Hayward appeared on the list of persons claiming to vote, in the subjoined form:

Hayward, George Henry.

Acton.

Copyhold land and
building.

Church Field,
Acton.

The facts of the case were as follows:-On the objector being called upon, in conformity with the 40th section of the 6 & 7 Vict. c. 18, to prove the service of his notice of objection on the overseers of the parish of Acton, in the county of Middlesex, it appeared that his notice was enclosed in the same cover with several others intended to be served by the objector in the same parish. The cover was addressed to the overseers of the parish of Acton, in the county of Middlesex;" and the parcel of notices thus made up was despatched by post: but the regulations prescribed by the 100th section of the above-mentioned statute for the posting of notices of objection were not followed; and no duplicate stamped by any postmaster according to the provisions of that section was produced before the revising

66

barrister.

The notice of objection reached the overseers of the parish of Acton on or before the 25th of August, and was by them included in their published list of objections.

*It was contended that service of a notice of objection on [*63 overseers, by post, in the manner described, was sufficient to satisfy the 101st section of the statute; and that, if it were not suffi cient, the effects of the irregularity were removed by the publication of the objection in the overseers' list.

On the first point, the revising barrister was of opinion, that, if notices of objection were served on overseers by post at all, the mode of posting prescribed by the 100th section of the 6 & 7 Vict. c. 18 must be adopted; this mode of posting being by the 101st section made applicable to the service of notices on overseers; and that, consequently, service by post of a notice of objection on overseers could only be proved before the revising barrister by production of a dupli

cate stamped by a postmaster in conformity with the regulations provided by the 100th section of the statute.

On the second point, the revising barrister was of opinion that it was not in the power of the overseers, by the publication of the objec tion, to remove the effects of any irregularity committed by the objector in the performance of the acts required from him by the

statute.

The conclusion of the revising barrister on the case before him, therefore, was, that there had not been such a service of the notice of objection on the overseers as the Act of parliament demanded. Consequently, he retained the name of George Henry Hayward on the list of voters for the county of Middlesex; but, in view of the appeal to be brought before this Court, he called upon the said George Henry Hayward to prove his qualification, which he failed through nonappearance to do.

The cases of four hundred and thirty-nine other persons named in the lists depending on the same decision, were consolidated with the principal case.

*If the Court should be of opinion that the decision of the

*64] revising barrister was wrong, the name of George Henry Hayward as well as those of the other persons above referred to were to be expunged from the register of voters for the county of Middlesex: if they should hold the decision right, the names were to be retained upon the register.

Macnamara (with Bourke) appeared for the appellants.

Welsby, for the respondent.-The only difference between this and the last case is, that this is the case of a county vote. The 40th section of the 6 & 7 Vict. c. 18 not only requires the objector to prove that due notice of objection was given, but that he gave or caused it to be given. The mere admission of the overseer that he received the notice on the 25th of August is no proof that the objector gave the notice. [WILLIAMS, J.-He need not give the notice himself: he may do it by an agent; and the post office may be his agent for that purpose.] The statute has pointed out how a service through the post-office may be effected. Here the proof is attempted to be compounded of what was done at the post-office and the admission of the overseers. The latter, however, must be taken with the nature and the time and mode of the service. The service, it is submitted, is proved by what took place at the post-office: and, if this sort of service will suffice, all the machinery provided by the 100th section is idle and purposeless. The provision in s. 100 for sending notices to the overseers by post, evidently means to incorporate all the formalities prescribed for that mode of service by the 100th section. [WILLIAMS, J.—Your argument would deserve consideration, if the notices

had never reached the overseers.] See the *difficulty of this

*65] mode of proof. Several notices are enclosed in one envelope. It may be necessary to prove the time at which a particular notice. was served: the overseer who received it has no recollection of the time when he received it: how, under such circumstances, could recourse be had to the envelope to ascertain the fact? (a) The whole

(a) There was another appeal from the county of Middlesex,-James, app., Smith, resp.,— in which the facts were the same as in these two cases, except that there each notice was in a separate envelope. It was taken to be disposed of by the decision in the others.

difficulty is got rid of by holding that the only evidence of the transmission by post shall be the stamped duplicate received from the postmaster under the provisions of the 100th section.

Macnamara was not called upon to reply.

ERLE, C. J.-I am of opinion that the conclusion arrived at by the revising barristers in these two cases of Smith, app., Huggett, resp., and Smith, app., James, resp., was erroneous, and that the statute has been sufficiently complied with. The 17th section (a) of the statute requires the objector on or before the 25th of August to give or cause to be given a notice to the overseers. The evidence here is, that the objector placed the notices in an envelope addressed "to the overseers of the parish of St. Anne, in the city of Westminster," in the one case, and "to the overseers of the parish of Acton, in the county of Middlesex," in the other case, and that both envelopes so addressed, with their respective contents, came to the hands of the overseers in due time. If the objector had sent the notices by a private messenger, or had delivered them with his own hand, there would have been [*66 no question. He did not adopt either of these courses, but sent them by the post. Now, for many purposes, the post may be considered as the agent of the party sending the notices. Having, therefore, sent the notices by his agent, the objector was bound to go on and show that his agent duly delivered them.(b) This he has done. The objection urged is, that, under s. 100, there is a specific provision for a statutory mode of proving the sending by post of the notices to which that section applies. That clause, however, is an enabling clause, to facilitate the proof of service: it relieves the party sending the notice from the necessity of proving that it has reached its destination, provided the formalities prescribed thereby are duly complied with, viz., the delivery of the notice in duplicate to, and the comparison and stamping, &c., by the postmaster. In that case, the party who delivers the notices to the postmaster and receives from him the stamped duplicate is enabled by the production of that document before the revising barrister to prove that all has been done which the statute requires.(c) It, however, takes away none of the ordinary legal modes of effecting service. That being so, the argument founded upon the construction of the statute contended for on the part of the respondents, that, in respect of notices sent by post, the only mode of proving that they have reached their proper destination is, the duction of the stamped duplicate received from the postmaster, entirely fails. There is nothing in the language of the section to warrant it; and it is clear to my mind that the legislature had no such intention. Where the 100th section does apply, the party desirous of serving *the notice has that facility afforded to him: but there is nothing [*67 in it to prevent him from pursuing the ordinary mode of service. The objector is required to prove that he has given his notices in due time: and here I think he has sufficiently done that. The decision must be reversed.

pro

WILLIAMS, J.-I am entirely of the same opinion. It is quite. unnecessary to say what our decision would have been, if it had not

(a) The 7th section, which relates to county voters, is to the same effect.

(b) See Bishop, app., Helps, resp., 2 C. B. 45 (E. C. L. R. vol. 52), 1 Lutw. Reg. Cas. 353. (c) See Lewis, app., Roberts, resp., antè, p. 23.