The existence of intimidation in the locality would constitute "special Sect. 93. circumstances." Sligo case, 1 O'M. & H. 309.

(d) A formal adjournment is not necessary. See r. 45, post. See also 47 & 48 Vict. c. 70, s. 27, post, p. 362.

(e) The court must further report as to illegal practices in manner prescribed by 47 & 48 Vict. c. 70, s. 8, sub-s. (2), post. Before a report is made affecting any person, opportunity must be given to such person to be heard. See s. 38 of the Corrupt Practices Act, 1883, which is set out in Schedule I., Part 2, of the Municipal Elections (Corrupt Practices) Act, 1884, post.

(ƒ) Notwithstanding this sub-section, if leave be given, appeal lies from a judgment of the Queen's Bench Division to the Court of Appeal. See s. 242, post, which incorporates s. 14 of the Judicature Act, 1881 (44 & 45 Vict. c. 68); and see Line v. Warren, 14 Q. B. D. 548; 54 L. J. Q. B. 291; 49 J. P. 516; and Beresford-Hope v. Sandhurst, 23 Q. B. D. 79; 58 L. J. Q. B. 316; 61 L. T. (N.s.) 150; 37 W. R. 548; 53 J. P. 805; 5 T. L. R. 472. Without leave no appeal lies. Unwin v. McMullen, [1891] 1 Q. B. 694; 60 L. J. Q. B. 400; 39 W. R. 712; 55 J. P. 582; 7 T. L. R. 450.

(9) In this case the respondent must deliver to the master, six days before the day appointed for trial, a list of the objections to the election upon which he intends to rely, and the master is to allow inspection and office copies of such list to all parties concerned; and no evidence is to be given by the respondent of any objection not specified in the list, except by leave of the High Court. See r. 8, post.

(h) The respondent may have ceased to hold office by having resigned or become disqualified.

(i) The clerk of the county council must, in relation to county council elections, be substituted for the town clerk.

NOTE.

94. (1.) Witnesses at the trial of an election petition shall be Witnesses. summoned and sworn in the same manner, as nearly as circumstances admit, as witnesses at a trial at nisi prius, and shall be liable to the same penalties for perjury (a).

(2.) On the trial the election court may, by order in writing, require any person who appears to the court to have been concerned in the election to attend as a witness, and any person refusing to obey the order shall be guilty of contempt of court (b).

(3.) The court may examine any person so required to attend, or being in court, although he is not called and examined by any party to the petition.

(4.) A witness may, after his examination by the court, be crossexamined by or on behalf of the petitioner and respondent, or either of them (c).

(9.) The reasonable expenses incurred by any person in appearing to give evidence at the trial of an election petition, according to the scale allowed to witnesses on the trial of civil actions at the assizes, may be allowed to him by a certificate of the election court or of the prescribed officer, and if the witness was called and examined by the court, shall be deemed part of the

Sect. 94 (9). expenses of providing a court, but otherwise shall be deemed costs of the petition (d).

(a) As to the order of the court to compel the attendance of a witness, see r. 54, post.

(b) As to the procedure in a committal for contempt of court, see rr. 55, 56, post. (c) Sub-ss. (5)—(8), are repealed by the 47 & 48 Vict. c. 70, post.

(d) The prescribed officer is the registrar appointed under r. 50, post. Under r. 53 it is his duty to ascertain and certify the amount of the allowance to a witness whose expenses are allowed by the commissioner. As to the costs of providing a court, see s. 101, post; as to the costs of the petition, see s. 98, post. 95.--(1.) A petitioner shall not withdraw an election petition of petition. without the leave of the election court or High Court on special application made in the prescribed manner, and at the prescribed time and place (a).

Withdrawal

(2.) The application shall not be made until the prescribed notice of the intention to make it has been given in the borough ().

(3.) On the hearing of the application any person who might have been a petitioner in respect of the election may apply to the court to be substituted as a petitioner, and the court may, if it thinks fit, substitute him accordingly (c).

(4.) If the proposed withdrawal is, in the opinion of the court, induced by any corrupt bargain or consideration, the court may by order direct that the security given on behalf of the original petitioner shall remain as security for any costs that may be incurred by the substituted petitioner, and that, to the extent of the sum named in the security, the original petitioner and his sureties shall be liable to pay the costs of the substituted petitioner.

(5.) If the court does not so direct, then security to the same amount as would be required in the case of a new petition (d), and subject to the like conditions, shall be given on behalf of the substituted petitioner before he proceeds with his petition and within the prescribed time after the order of substitution.

(6.) Subject as aforesaid, a substituted petitioner shall, as nearly as may be, stand in the same position and be subject to the same liabilities as the original petitioner.

(7.) If a petition is withdrawn, the petitioner shall be liable to pay the costs of the respondent (e).

(8.) Where there are more petitioners than one, an application to withdraw a petition shall not be made except with the consent of all the petitioners.

(a) The form of notice of application to withdraw a petition is prescribed by r. 58, post. The notice of application is to be left at the master's office, and copies are to be served on the respondent and on the town clerk or clerk of the county council, as the case may be, and published in the borough or county to which the petition relates. See rr. 59, 60, post. As to the effect of the notice, see r. 46, post.

The petitioners, who had presented a petition and subsequently found out

that their agent's report, upon which the petition was based, was untrustworthy, were allowed by the court to withdraw the petition, the Public Prosecutor having ascertained by special inquiry that there was no reliable evidence to support it, and having received from the petitioners copies of the report and details of the subsequent inquiries. On a motion for leave to withdraw a petition, the court has a discretion as to the costs of the parties, and may order them to be paid by the petitioners on the higher scale and taxed as between solicitor and client. They cannot give costs to the Public Prosecutor. Pascoe v. Puleston, 54 L. T. (N.s.) 733; 50 J. P. 135; cf. The Lichfield Election Petition, 9 T. L. R. 92.

Where, after a recount, in which the majority of the sitting member was found to be the same as it was when announced by the returning officer, the petitioner applied for leave to withdraw, but there was no affidavit of notice to the Public Prosecutor and no affidavit of the election agent, but only of the London solicitors on each side and of the petitioner, whose affidavits showed that the parties making them did not know of any agreement nor of any terms having been entered into respecting the withdrawal, but did not state on what grounds the petition was to be withdrawn, the court refused the application. Halifax Election Petition, 9 T. L. R. 563. And see s. 26 of the Corrupt Practices Act, 1884, p. 361, post.

After a municipal election a petition was presented by an unsuccessful candidate, claiming that he was returned by a majority of lawful votes. The mayor, to save expense, induced the petitioner and the returned candidate to submit the question to the arbitration of the town clerk, who was to recount the votes. On the award being against the petitioner, he asked leave to withdraw the petition, and the court allowed him to do so on payment of the costs, the Public Prosecutor not opposing. Mallam v. Bean, 51 J. P. 230.

(b) See rr. 59, 60, post.

(c) See r. 61, post.

(d) See s. 89 and note, ante, p. 300, and r. 26, post.

(e) See Pascoe v. Puleston; Mallam v. Bean; Lichfield case, supra ; and Devonport case, 2 T. L. R. 345; Penton v. Naoroji, 4 O'M. & H. 171 ; George v. Price-Jones, 4 O'M. & H. 166; and as to the scale of costs, s. 29 (3) of the 47 & 48 Vict. c. 70, post.

Sect. 95.

NOTE.

96.—(1.) An election petition shall be abated by the death of a Abatement of sole petitioner or of the survivor of several petitioners.

(2.) The abatement of a petition shall not affect the liability of the petitioner or of any other person to the payment of costs previously incurred.

(3.) On the abatement of a petition the prescribed notice thereof shall be given in the borough, and, within the prescribed time after the notice is given, any person who might have been a petitioner in respect of the election may apply to the election court or High Court in the prescribed manner and at the prescribed time and place to be substituted as a petitioner; and the court may, if it thinks fit, substitute him accordingly.

(4.) Security shall be given on behalf of a petitioner so substituted, as in the case of a new petition.

As to notice of abatement of a petition, and the procedure on the application to be substituted as a petitioner, see r. 63, post.

As to security for costs, see s. 89, ante, p. 300.

petition.

Sect. 97 (1).

Withdrawal and substitution of respondents.

Costs on election petitions.

97.-(1.) If before the trial of an election petition a respondent other than a returning officer (a)—

(a.) Dies, resigns, or otherwise ceases to hold the office to which the petition relates (b); or

(b.) Gives the prescribed notice that he does not intend to oppose the petition (c);

the prescribed notice thereof shall be given in the borough (d), and within the prescribed time (e) after the notice is given any person who might have been a petitioner in respect of the election may apply to the election court or High Court to be admitted as a respondent to oppose the petition, and shall be admitted accordingly, except that the number of persons so admitted shall not exceed three.

(2.) A respondent who has given the prescribed notice that he does not intend to oppose the petition shall not be allowed to appear or act as a party against the petition in any proceedings thereon.

(a) The returning officer may be a respondent if the petition complains of his conduct. See s. 88, sub-s. (2), ante, p. 299. See also r. 64, post. As to the procedure after the master has received notice of the happening of any of these events, see rr. 46, 47, post.

(b) The petition does not abate merely because the respondent ceases to hold office.

(c) The notice is prescribed by r. 65, post. The name of a respondent will not be struck out of a petition merely because he has given this notice. See Yates v. Leach, ante, p. 299.

(d) See r. 66, post.

(e) The prescribed time is ten days. See r. 67, post.

98. (1.) All costs, charges, and expenses of and incidental to the presentation of an election petition, and the proceedings consequent thereon, except such as are by this Act otherwise provided for, shall be defrayed by the parties to the petition in such manner and proportions as the election court determines; and in particular any costs, charges, or expenses which, in the opinion of the court, have been caused by vexatious conduct, unfounded allegations, or unfounded objections on the part either of the petitioner or of the respondent, and any needless expense incurred or caused on the part of petitioner or respondent, may be ordered to be defrayed by the parties by whom it has been incurred or caused, whether they are or not on the whole successful (a).

(2.) The costs may be taxed in the prescribed manner, but according to the same principles as costs between solicitor and client in an action in the High Court, and may be recovered as the costs of such an action, or as otherwise prescribed (b).

(3.) If a petitioner neglects or refuses for three months after demand to pay to any person summoned as a witness on his behalf, or to the respondent, any sum certified to be due to him for his costs, charges, and expenses, and the neglect or refusal is, within

one year after the demand, proved to the satisfaction of the High Sect. 98 (3). Court, every person who has under this Act entered into a recognizance relating to the petition shall be held to have made default in the recognizance, and the prescribed officer (c) shall thereon certify the recognizance to be forfeited, and it shall be dealt with as a forfeited recognizance relating to a parliamentary election petition (d).

(a) An overloaded petition will be visited with costs, even if it is successful. Birkbeck v. Bullard, 54 L. T. (N.s.) 625. When a petition is wholly unfounded the court may order the petitioner to pay the costs of the Public Prosecutor. Crossman v. Gent-Davis, 54 L. T. (N.S.) 628. In certain cases the parties may be ordered to pay the expenses of the election court. See s. 101, post.

The barrister appointed to try the petition has an absolute discretion over the costs. In a case where the petitioners had improperly made an unsuccessful candidate a respondent, it was held that they could not object that he was not a party to the petition so as to deprive the barrister of jurisdiction to make an order upon them for his costs. Lovering v. Dawson, L. R. 10 C. P. 726; 44 L. J. C. P. 321; 32 L. T. (N.s.), 823.

(b) So much of this sub-section as relates to the principle of taxation is repealed by 47 & 48 Vict. c. 70, post. As to the mode of taxation and recovery of the costs, see ss. 29 and 32 of that Act, and r. 68, post, and Pare v. Hartshorn, 31 L. T. (N.S.) 486; 23 W. R. 138.

(c) That is, the Master. See r. 1, post.

(d) That is, in manner provided by 30 & 31 Vict. c. 125, s. 42.

and attend

ance on the

99.—(1.) The town clerk shall provide proper accommodation Reception of for holding the election court; and any expenses incurred by him for the purposes of this section shall be paid out of the borough election fund or borough rate (a).

(2.) All chief and head constables, superintendents of police, head-boroughs, gaolers, constables, and bailiffs shall give their assistance to the election court in the execution of its duties, and if any gaoler or officer of a prison makes default in receiving or detaining a prisoner committed thereto in pursuance of this Part, he shall be liable to a fine not exceeding five pounds for every day during which the default continues.

(3.) The election court may employ officers and clerks as prescribed (b).

(4.) A shorthand writer shall attend at the trial of an election petition, and shall be sworn by the election court faithfully and truly to take down the evidence given at the trial. He shall take down the evidence at length. A transcript of the notes of the evidence taken by him shall, if the election court so directs, accompany the certificate of the election court. His expenses, according to a prescribed scale, shall be treated as part of the expenses incurred in receiving the court (c).

(a) This duty will, in county council elections, devolve upon the clerk to the council (see the Local Government Act, s. 75, sub-s. (5), ante, p. 142. The expenses will be payable out of the county fund.

court.