No. XLIV. MORRIS v. SIR F. BURDETT. THIS was an action brought against defendant to re- 1 Campb. N. P. Rep. cover from him a portion of the expences incurred by 218. the plaintiff, as returning officer, at the general election preceding. The case came on for trial before Lord Ellenborough, at the sittings Hilary Term, 48 G. 3, under the following facts.* No liability (except at county elec in candidate tions) to pay for erection of booths, unless be so to do. The election took place in May, 1807. when five can undertakes didates were propesed, viz. Right Hon. Lord Cochrane, Right Hon. R. B. Sheridan, Sir Francis Burdett, bart. the defendant, John Elliott, esq. and James Paul, esq. This last gentleman, however, withdrew early iu the contest, and paid his share of the expences then incurred. The defendant was afterwards called upon for a fourth part of the sum which remained to be divided between himself and the other three candidates; but refused to The following were the principal items in the particular of the plaintiff's demand, to which the defendant was required to contribute : Two commissioners for administering the oaths of allegiance, Bill for erecting hustings, and surveyor's fee for valuing same garden, and incidental damages Printer's bill for tickets, &c. 1 40 O 14 3 6 pay any part of it, on the principle that a member of parliament should be elected free from all expence. It was admitted or proved, in the course of the trial, that the charges were exactly such as had been made on similar occasions, as far back as could be remembered; that the sums mentioned in the particular had been disbursed by the plaintiff; that the defendant was confined to his bed by illness during the whole election; that before the poll began, a Mr. Percy, on the part of a committee of electors in the interest of the defendant, informed the plaintiff, that no part of the expence of the election would be defrayed by the defendant, or his friends, but required him to supply them with tickets for the hustings; that the inspectors and poll-clerks acting in the interest of the defendant, had the same accommodation and privileges during the election as those of the other candidates; that a requisition was made by Lord Cochrane for administering the prescribed oaths to Roman Catholics, upon which commissioners were appointed for that purpose; that the defendant, upon the meeting of parliament, took his seat in the house of commons; and that the office of high bailiff was purchased for a considerable sum of money by the plaintiff. On the part of the plaintiff it was contended, that, under these circumstances, the plaintiff was entitled to recover Mr. Percy, at the same time, delivered to the plaintiff, as his authority, for this application, a minute of a resolution of the committee, of which the following is a copy: "At a meeting of the committee of electors of Westminster, friends of Sir Francis Burdett, bart. held at the Britannia Coffee-house, Covent-garden, on Wednesday, the 5th day of May, 1807, "Resolved, Mr. Francis Place, in the chair, "That Mr. Percy do wait upon the high bailiff, to request the necessary tickets for the hustings, and that Mr. Percy do likewise officially appoint the inspectors and check-clerks. "Francis Place." to the full extent of his demand, his case being argued to the following effect. From the antiquity and notoriety of the different charges, a promise might be inferred on the part of every candidate to submit to them. The present defendant might not have personally interfered pending the election; but by subsequently taking his seat in the house of commons, he had acceded to the character of a candidate, and adopted the acts of his committee. The items in themselves could not be considered as unreasonable. Without the attendance of the staff-men and constables, it was impossible that the peace of the metropolis should be preserved during the tumult of the election; and the whole of the clerks charged for were indispensably necessary to the taking of the poll. The hustings, if not equally necessary, at least contributed greatly to the convenience of the candidates as well as of the electors, and the tickets of admission to them had been expressly required by the defendant's agent, which likewise rendered him liable for a share of the printer's bill. The bond of indemnity to the church-wardens of the parish of St. Paul, Covent Garden, had always been required by them, before they would grant permission to erect the hustings in the usual place, near the church. As to the charge for commissioners to administer oaths to catholics, there could be no sort of doubt, it being enacted by stat. 34 G. 3. c. 73, that such commissioners shall be provided, upon the requisition of any one of the candidates, and that the expence shall be defrayed by all the candidates, in equal proportions. On the other side, it was maintained that there had been no assent on the part of the defendant, either express or implied, to be answerable for any part of these expences. Particular items he did not object to, denying his liability altogether. The defendant had himself been too ill during the whole of the election to know what was going forward; nor could he be conceived to have acceded to the acts of his committee by taking his seat in the house of commons, which he was bound, and might have been compelled to do, after being legally returned as one of the representatives of the people in parliament. The high-bailiff had received an express warning that he was to expect no contribution towards the expence of the election from Sir Francis Burdett or his friends; and thus was the idea of an implied undertaking completely negatived. The statute concerning the catholic oaths seemed to apply only to county elections; but even supposing the candidates were liable upon this score, the defendant could not be considered as a candidate within the meaning of the legislature, as his being proposed was entirely without his knowledge or consent; and this burthen might as well be thrown upon any obscure individual, started by some elector against his will, for the mere purpose of harassing and oppressing him. Lord Ellenborough summed up to the jury as follows: "A candidate at an election for members of parliament is liable to no expence except such as the statute law casts upon him, or he takes upon himself by his express or implied consent. A great number of these items may therefore be entirely laid out of consideration, as arising from acts which the plaintiff was bound to do by reason of his office, or as of such a nature that no promise to contribute to them can possibly be inferred. To proclaim the election is a duty which the law imposes upon the high-bailiff, and there is the less pretence for charging the candidates with it, as they had not then been nominated. It does not seem necessary that he should have been attended on this occasion with six under-bailiffs, the crier on horseback, &c. but if it was, he must consider the consequent expence a burthen he took upon himself along with his office, which must be a lucrative one, from the terms on which it was purchased. So the law requires him to do whatever is necessary to making the return; and if the election cannot take place without the attendance of so |