maintained in its present form of general idebitatus assumpsit. Mr. Justice Lawrence stated to the jury his opinion thereupon. "Both objections admit of the same answer; that the plaintiff does not proceed upon the statute. If the sheriff had merely been desired to erect booths in pursuance of the statute, then we should have had to have considered what remedy the statute gives him." He then observed, that there was an express undertaking on the part of both candidates to pay for the hustings; upon which he laid down, that the two were jointly liable, but he added, "However, although the action is certainly maintainable, there are several parts of the plaintiff's demand with which he has no right to charge the defendants. The first eight items, amounting to £. 40. 5s. for the indentures, &c. only concern the execution of his office of sheriff, and there is no pretence for throwing them upon the candidates. The same thing may be said of the charge for constables. The sheriff is bound to preserve the peace of the county. If he is put to any extraordinary expence in this way, let him represent the matter when he passes his accounts in the exchequer, or directly to his majesty's government. Any claims he may have for remuneration will thus be attended to; but he has no 10&11 W.3 more right to recover such charges from a candidate at the election than from any other individual in his bailiwick." There were several other items that his lordship advised the jury to disallow entirely, such as the surveyors, and printing the poll-books. For the assessor, his lordship thought the defendants liable, although this be an expence not mentioned in the statute, which was meant for the protection of the sheriff, not of the candidates; but the accompanying charges for agents fees, &c. in retaining the assessor, he considered as exorbitant. Advantage (he observed) was often taken of the situation of candidates to sit in parliament, who were afraid to resist any demand, however unreasonable, lest they should e. 7. render themselves unpopular; and thus a sort of custom was set up for the impositions practised upon them; but such charges as twenty-five guineas for leaving a retainer with a gentleman at the bar, and paying him his fees, could not be supported in a court of justice, however long established. With respect to the amount of the demand, he added in a subsequent part of his charge; that the plaintiff could only recover the original expence of erecting the hustings, not the costs of any action brought against him by the person who had erected them. Under the observations made from the bench, the jury found a verdict for the plaintiff accordingly. Damages, £. 1360. An application was made in the ensuing term, by Sir E. B. Sandys, for a new trial upon other grounds; but the direction of the judge at nisi prius was in no respect questioned. No. XLVI. MORRIS v. SIR F. BURDETT. Thursday, who is no to serve in THIS was an action (similar to the former, ante, p. lvii.) 1813, brought by the bailiff of Westminster to recover from Nov. 25th. defendant as one of the candidates at the last election of A person members, to serve for that city, in parliament, a moiety minated of the expences of the hustings, on the trial before and elected Lord Ellenborough, C. J. at the Middlesex sittings, after parliament Trinity term. It was proved that the plaintiff some days prior to the last election, made the usual preparation, by the erection of hustings, &c. in expectation of a poll taking place, that on the day of nomination, at or in Lord Cochrane and the defendant were nominated, and interfering afterwards declared duly elected, and returned to parlia- himself, or of Westminster, for the city without being present any way by his a himself out, ing any one else to hold him out as a but after his seat in not charge stat. 51G. 3. c. 126. with the expences of ment, but the defendant never made his appearance on gents, with the election the hustings, nor interfered in any way himself, or by or holding his agents, with the election, nor was there any evidence or authoriz- to shew that he held himself out, or authorized any one else, to hold him out as a candidate. It was proved, that the defendant afterwards took his seat in the house candidate, of commons, and subscribed the test-roll required by the wards takes forms of the house to be signed upon that occasion. the house of Upon this evidence, the defendant's counsel applied for commons, is a nonsuit, on the ground that it was not proved that the able under defendant was a candidate within the meaning of the 51 G. 3. c. 126, under which statute it was sought to charge him with the above expences, and his lordship upon that point was of opinion, that the proof was insufficient, inasmuch as to be a candidate, a person must do some act or be privy to some act done for him, or at least assent to the proposal of himself, as an object of the suffrages of the electors, and thereupon he directed a nonsuit, but it being suggested, that the defendant by having taken his seat in the house of commons, must be presumed to have assented to his being considered as a candidate within the meaning of the act of parliament, and the case of Morris v. Burdett being cited in support of that proposition, his lordship, although he inclined against the suggestion, gave leave to the plaintiff to move to set aside the nonsuit, and enter a verdict for £.225, the amouut of the expences claimed. the hustings. p. 212. The attorney-general accordingly obtained a rule nisi to that effect. On Thursday the 25th of November, in the ensuing term, the case came on to be argued in the court of king's bench. Brougham and E. Lawes shewed cause and premised that in order to charge the defendant in this action, he * 1 Camp. N. P. C. 218 ante. p. lvii. must be shewn to be a candidate, either in the ordinary acceptation of that word, or in the sense given to it by the legislature. And they denied that in its ordinary sense it comprehended a person who is nominated and elected by others without any knowledge or concurrence on his part. And as to its legislative sense, they referred to several statutes to shew that it was used in them, as implying something more than a person merely passive; as in the 18 G. 2. c. 18. s. 7. the sheriff is directed to appoint at the expence of the candidates, such number of booths as the candidates, or any of them, three days before the commencement of the poll, shall desire; so by 7 & 8 W. 3, c. 25. s. 5. the sheriff is prohibited from adjourning the poll to any other than the usual place, without the consent of the candidates; and it is observable, that the legislature have in the 7 & 8 W. 3. c. 4. (treating act) used the words, " persons to be elected," and not" candidate," which shews that they did not understand those terms as being synonimous. Assuming then, that a person who neither interferes himself, or by his agents at an election, could not, in any understanding of the word be said to be a candidate, they further contended that the defendant having taken his seat in the house of commons, could not make any difference. The taking his seat was a duty cast upon him, not a voluntary act, nor done for his own benefit: he could not legally refuse to come to parliament. By the 5 R. 2. stat. 2. c. 4. if any person summoned to parliament (beh e archbishop, &c. knight, citizen, or burgess) absent himself and come not, (except for reasonable excuses,) he shall be amerced, otherwise punished, according as of old times has been used. By the 6 H. 8. c. 16. none shall depart from the house of commons without licence, &c. on pain of losing his wages; he may be also fined by the commons; and the king cannot grant to any man a 4 Inst, 44. charter of exemption to be freed from election, because his attendance is for the service of the whole realm; and Ibid. 49. there is an instance in the reign of Philip and Mary of 1 Camp. N. P. C. 225. an information being filed against Mr. Plowden, for not attending in the house of commons. From all which it follows that the taking of his seat was not a voluntary act; and if it were not, neither shall it operate against the defendant to make that which before was without his consent, as if it were now adopted by him and done with his consent. And as to the former case of Morris v. Burdett, it will not be found that the court there decided that the defendant, by taking his seat, adopted the character of a candidate, but by assenting to what had been done by his committee. Here there was not any evidence of any assent whatever. The Attorney General, Park, and Richardson, contra, contended that the meaning of candidate in the popular sense of that word, was a person who has been nominated as such, and for whom a poll is going on, and votes are given; but however that might be, such at least was its meaning within the act of parliament, which otherwise would not afford a remedy co-extensive with the mischief. The mischief recited is, that there is no convenient public building wherein to hold the election, &c. and then it is enacted that upon every election the bailiff shall appoint, at the expence of the candidate or candidates, a convenient place, &c. so that it is clear that the legislature contemplated, that at every election there must "ex necessitate" be a candidate or candidates; whereas, according to the argument on the other side, there may be an election without any candidate. But if that could be, how would the act of parliament be satisfied, which directs the thing to be done at every election, at the expence of the candidate. Again, the 2nd and 3rd sections direct the bailiff to allow a check-book for each candidate, under pain of prosecution. It may be asked then, could the bailiff have refused such book to the defendant on the ground of his not being a candidate? Then, as to the defendant's adoption of the character of a candidate by a subsequent act of taking his seat, it is answered, that he |