Sect. 88.

NOTE.

Security for costs.

An unsuccessful candidate at an election cannot be made a respondent to a petition, although he coalesced for the purposes of the election with two successful candidates, so as to be responsible equally with them for any acts done by any of the three in furtherance of the common purpose. Lovering v. Dawson, L. R. 10 C. P. 726 ; 44 L. J. C. P. 321 ; 32 L. T. (N.s.) 819.

Where a mayor bonâ fide decides on an objection to a nomination paper, a complaint of such decision as erroneous is not a complaint of the conduct of the mayor within the meaning of this section, and he ought not to be made a respondent. If an election is avoided through the negligence of the returning officer, the court may order him to pay the costs of the petition. Wilson v. Ingham, 64 L. J. Q. B. 775; 72 L. T. (N.s.) 796; 43 W. R. 621; 59 J. P. 614; Harmon v. Park, 6 Q. B. D. 323; 50 L. J. Q. B. 227; 44 L. T. (N.s.) 81 ; 29 W. R. 750; 45 J. P. 436.

(b) The word "prescribed" here means prescribed by general rules. See s. 77, ante, p. 296; see also s. 100, post, and the general rules made thereunder, which are set out, post.

In applying this sub-section to county council elections, the term "town clerk must be read "clerk of the council," and "borough" as "county." The publication should evidently be made in the electoral division to which it relates.

(c) If the petition is founded on an illegal practice it must be presented within fourteen days after the date when the town clerk or clerk of the council receives the return and declaration respecting election expenses; and in the event of an illegal practice after the election within twenty-eight days thereafter: 47 & 48 Vict. c. 70, s. 25, post. By the same section it is provided that any election petition presented within the time limited by the Municipal Corporations Act, 1882, may, for the purpose of complaining of the election upon an allegation of an illegal practice, be amended, with the leave of the High Court, within the time within which a petition complaining of the election on the ground of that illegal practice can, under that section, be presented.

The court cannot after the period of twenty-one days here mentioned allow an amendment which would practically amount to a new petition, as by adding a charge of treating. Maude v. Lowley, L. R. 9 C. P. 165; 43 L. J. C. P. 105; Clark v. Wallond, 52 L. J. Q. B. 321; 48 L. T. (N.s.) 762; 31 W. R. 551; 47 J. P. 551.

As to an order for particulars of the charges, see r. 6 of the General Rules, and the notes thereto, post.

89.—(1.) At the time of presenting an election petition, or within three days afterwards, the petitioner shall give security for all costs, charges, and expenses which may become payable by him to any witness summoned on his behalf, or to any respondent.

(2.) The security shall be to such amount, not exceeding five hundred pounds, as the High Court, or a judge thereof, on summons directs, and shall be given in the prescribed manner (a), either by a deposit in money, or by recognizance entered into by not more than four sureties, or partly in one way and partly in the other.

(3.) Within five days after the presentation of the petition the petitioner shall in the prescribed manner (6) serve on the respondent

a notice of the presentation of the petition, and of the nature of Sect. 89 (3). the proposed security, and a copy of the petition.

(4.) Within five days after service of the notice the respondent may object in writing to any recognizance on the ground that any surety is insufficient or is dead, or cannot be found or ascertained for want of a sufficient description in the recognizance, or that a person named in the recognizance has not duly acknowledged the

same.

(5.) An objection to a recognizance shall be decided in the prescribed manner (c).

(6.) If the objection is allowed, the petitioner may, within a further prescribed time not exceeding five days, remove it by a deposit in the prescribed manner of such sum of money as will, in the opinion of the court or officer having cognizance of the matter, make the security sufficient.

(7.) If no security is given, as prescribed, or any objection is allowed and is not removed, as aforesaid, no further proceedings shall be had on the petition.

(a) See rr. 16 to 38, post. As to the amount of the security, see r. 26, post.

(b) See rr. 14, 15, post. By r. 36, the petitioner or his agent must file an affidavit of the time and manner of the service immediately after such service. The observance of these provisions as to service of the petition is a condition precedent to the trial of the petition. Williams v. Tenby (Mayor of ), 5 C. P. D. 135; 49 L. J. C. P. 325; 42 L. T. (N.s.) 187; 28 W. R. 616; 44 J. P. 348.

(c) See rr. 27--34, post.

issue.

90. On the expiration of the time limited for making objections, Petition at or, after objection made, on the objection being disallowed or removed, whichever last happens, the petition shall be at issue.

The objections here referred to are the objections to recognizances under the preceding section. See r. 37, post.

91.-(1.) The prescribed officer (a) shall as soon as may be make Municipal a list, in this Act referred to as the municipal election list, of all election list. election petitions at issue, placing them in the order in which they were presented, and shall keep at his office a copy of this list, open to inspection in the prescribed manner ().

(2.) The petitions shall, as far as conveniently may be, be tried in the order in which they stand in the list.

(3.) Two or more candidates may be made respondents to the same petition, and their cases may be tried at the same time, but for the purposes of this Part the petition shall be deemed to be a separate petition against each respondent (c).

(4.) Where more petitions than one are presented relating to the same election, or to elections held at the same time for different

Sect. 91 (4). wards of the same borough (d), they shall be bracketed together in the list as one petition, but shall, unless the High Court otherwise directs, stand in the list in the place where the last of them would have stood if it had been the only petition relating to that election.

Constitution of election

court.

(a) That is, the master for the time being nominated as prescribed officer. See r. 1, post.

(b) As to the making out of the lists and the inspection of such lists, see r. 39, post.

(c) See Line v. Warren, ante, p. 299.

(d) This must, in relation to county council elections, be read as "different electoral divisions of the same county."

92.-(1). An election petition shall be tried by an election court, consisting of a barrister, qualified and appointed as in this section provided, without a jury.

(2.) A barrister shall not be qualified to constitute an election court if he is of less than fifteen years' standing, or is a member of the Commons House of Parliament, or holds any office or place of profit under the Crown, other than that of recorder.

(3.) A barrister shall not be qualified to constitute an election court for trial of an election petition relating to any borough for which he is recorder, or in which he resides, or which is included in a circuit of Her Majesty's judges on which he practises as a barrister.

(4.) As soon as may be after a municipal election list is made out the prescribed officer shall send a copy thereof to each of the judges for the time being on the rota for the trial of parliamentary election petitions

*

(a).

(5.) If a commissioner to whom the trial of a petition is assigned dies, or declines or becomes incapable to act, the said judges or two of them may assign the trial to be conducted or continued by any other of the commissioners appointed under this section.

(6.) The election court shall for the purposes of the trial have the same powers and privileges as a judge on the trial of a parliamentary election petition, except that any fine or order of committal by the court may on motion by the person aggrieved be discharged or varied by the High Court, or in vacation by a judge thereof, on such terms, if any, as the High Court or judge thinks fit (b).

(a) The remainder of this sub-section was repealed by 47 & 48 Vict. c. 70, Sched. 2, post. Section 36, sub-s. (2) of that Act, post, contains the substituted provision. It provides that the judges may annually appoint a number of barristers, not exceeding five, to be commissioners for the trial of election petitions, under Part IV. of the Municipal Corporations Act and that Act, and shall from time to time assign the petitions to be tried by each commissioner.

(b) The High Court has no appellate jurisdiction over the commissioner, Sect. 92. and cannot review his decisions except upon a question of law reserved by him under s. 93 (8), post. Preece v. Harding, 24 Q. B. D. 110; 59 L. J. Q. B. 82. Ex parte Ayres, 54 L. T. (N.s.) 296. Marsland v. Hickman, 2 T. L. R. 398.

NOTE.

election

93.-(1.) An election petition shall be tried in open court, Trial of and notice of the time and place of trial shall be given in the petition. prescribed manner not less than seven days before the day of trial (a).

(2.) The place of trial shall be within the borough (b), except that the High Court may, on being satisfied that special circumstances exist rendering it desirable that the petition should be tried elsewhere, appoint some other convenient place for the trial (c).

(3.) The election court may in its discretion adjourn the trial from time to time (d), and from any one place to any other place within the borough (b) or place where it is held.

(4.) At the conclusion of the trial the election court shall determine whether the person whose election is complained of, or any and what other person, was duly elected, or whether the election was void, and shall forthwith certify in writing the determination to the High Court, and the determination so certified shall be final to all intents as to the matters at issue on the petition.

(5.) Where a charge is made in a petition of any corrupt practice or offence against this Part having been committed at the election, the court shall, in addition to the certificate, and at the same time, report in writing to the High Court as follows: (a.) Whether any corrupt practice or offence against this Part has or has not been proved to have been committed by or with the knowledge and consent of any candidate at the election, and the nature of the corrupt practice or offence;

(b.) The names of all persons (if any) proved at the trial to have been guilty of any corrupt practice or offence against this Part;

(c.) Whether any corrupt practices have, or whether there is reason to believe that any corrupt practices have, extensively prevailed at the election in the borough or in any ward thereof (e).

(6.) The election court may at the same time make a special report to the High Court as to any matters arising in the course of the trial, an account of which ought, in the judgment of the election court, to be submitted to the High Court.

(7.) If, on the application of any party to a petition made in the prescribed manner to the High Court, it appears to the High Court that the case raised by the petition can be conveniently stated as a

Sect. 93 (7). special case, the High Court may direct the same to be stated accordingly, and any such special case shall be heard before the High Court, and the decision of the High Court shall be final (ƒ). (8.) If it appears to the election court on the trial of a petition that any question of law as to the admissibility of evidence, or otherwise, requires further consideration by the High Court, the election court may postpone the granting of a certificate until the question has been determined by the High Court, and for this purpose may reserve any such question, as questions may be reserved by a judge on a trial at nisi prius.

(9.) On the trial of a petition, unless the election court otherwise directs, any charge of a corrupt practice or offence against this Part may be gone into, and evidence in relation thereto received before any proof has been given of agency on behalf of any candidate in respect of the corrupt practice or offence.

(10.) On the trial of a petition complaining of an undue election, and claiming the office for some person, the respondent may give evidence to prove that that person was not duly elected, in the same manner as if he had presented a petition against the election of that person (g).

(11.) The trial of a petition shall be proceeded with, notwithstanding that the respondent has ceased to hold the office his election to which is questioned by the petition (h).

(12.) A copy of any certificate or report made to the High Court on the trial of a petition, and, in the case of a decision by the High Court on a special case, a statement of the decision, shall be sent by the High Court to the Secretary of State.

(13.) A copy of any such certificate and a statement of any such decision shall also be certified by the High Court, under the hands of two or more judges thereof, to the town clerk of the borough (2).

(a) See rr. 40, 42, post. See also rr. 43 as to the postponement of the trial if the barrister does not arrive in time.

(b) Or county, in case of a petition against the election of a county councillor.

(c) Where the allegations of fact in a petition are not in dispute, but are specifically admitted by the respondent, so as to render it unnecessary at the trial to call witnesses from the district in which the election took place, the court may order the petition to be tried in London, on the ground that special circumstances exist which render it desirable that the petition should be tried elsewhere than in the county or division where the election took place. Arch v. Bentinck, 18 Q. B. D. 548; 56 L. J. Q. B. 458; 56 L. T. (N.s.) 360; 35 W. R. 476. Mere questions of expense or convenience do not constitute special circumstances enabling the High Court to order that the petition shall be tried elsewhere than in the borough or county. Lawson v. Chester-Master, [1893] 1 Q. B. 245; 62 L. J. Q. B. 231; 68 L. T. (N.s.) 60; 41 W. R. 221; 57 J. P. 806; 9 T. L. R. 168. Nor the absence of local accommodation for the persons engaged in the petition. Collins v. Price, 5 C. P. D. 544.