Petitions.

(3.) Two or more candidates may be made respondents to Election 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.

[That is when they have been elected -Lovering v. Dawson (1 L.R., 10 C.P., 711); or when they claim to have been elected.-Yates v. Leach (L.R., 9 C.P., 605)].

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

[The effect of section 13 of 35 & 36 Vict. c. 60 (1872) is preserved in this clause].

of election

92.-(1.) An election petition shall be tried by an election Constitution court consisting of a barrister qualified and appointed as in this court. 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; and those judges or two of them shall forthwith determine the number of barristers, not exceeding five at any one time, necessary to be appointed for the trial of the election petitions at issue, and shall appoint that number accordingly as commissioners under this Part, and shall assign the petitions to be tried by each.*

(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.

* The portion in italics was repealed by 47 & 48 Vict. c. 70 (1884). See Appendix.

Election Petitions.

Trial of election petition.

(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.

*

[The effect of section 14 of 35 & 36 Vict. c. 60 (1872) is preserved in this clause].

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

(2.) The place of trial shall be within the borough, 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.

(3.) The election court may in its discretion adjourn the trial from time to time, and from any one place to any other place within the borough 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.

[The fact of the court being empowered to make their report does not warrant "that, without any act or consent on his part, and against his will, a man can be made a r spondent, so that the petitioner may gain rights against him. The term respondent includes any one or more persons against whose election a petition is presented," per Coleridge, C.J (Lovering v. Dawson, L.R., C.P., 10 p. 718)].

(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

As to powers of election judge, see 31 & 32 Vict. c. 115, s. 29.

† See General Rules, 35, 36.

Petitions.

with the knowledge and consent of any candidate at the Election 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.

(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 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.*

[An appeal lies to decide whether a person has been properly made a respondent, Harmon v. Park (44 L.T. (N.8.) 82) J.

(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.†

* See General Rules, 37.

See General Rules, 8.

Election

Petitions

Witnesses.

(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.

(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.

[The effect of section 15 of 35 & 36 Vict. c. 60 (1872) is preserved in this clause].

94.-(1.) Witnesses at the trial of an election petition shall be 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.

[Continues provisions of 26 & 27 Vict. c. 29, sec. 7 (1863) relating to examination and indemnity of witnesses].

(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.*

(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 cross-examined by or on behalf of the petitioner and respondent or either of them.

(5.) A uitness on an election petition shall not be excused from answering any question relating to a corrupt practice or offence against this Part committed at or connected with the election on the ground that the answer thereto may criminate or tend to criminate him; but if he answers it he shall be entitled to receive from the court a certificate stating that he was on his examination required by the court to answert

* See General Rules, 41.

Repealed by 47 & 48 Vict. c. 70 (1881). See Appendix.

questions the answers whereto criminated or tended to criminate him, Election and that he answered all such questions.

(6.) If any information, indictment or action is at any time thereafter pending against the witness in any court for any corrupt practice or offence against this Part committed at or in relation to the election before the time of his giving his evidence, that court shall, on production and proof of the certificate, stay the proceedings, and may, in its discretion, award to him such costs as he has been put to therein. (7.) The giving of or refusal to give any such certificate by the election court shall be final and conclusive.

[In Reg. v. Price (L. R., 6 Q.B., 411), it was held that if a witness had in point of fact answered all such questions, he was entitled to a certificate; and that if commissioners refused to grant a certificate to the witness on the ground that they were of opinion that he had not answered the questions, their decision was to be final and conclusive, but might be reviewed by man. damus. This case dissented from in Reg. v. Hall and others, in Court of Appeal (7 Q. B. D., p. 575): Held, where the commissioners appointed to inquire into corrupt practices at a parliamentary election have, with reference to a witness before them on such inquiry, exercised their judgment as to the right of such witnesses to receive their certificate under section 7 of the Corrupt Practices Prevention Act (26 & 27 Vic. c. 29), their decision refusing such certificate is conclusive and cannot be reviewed by mandamus].

(8.) A statement made by any person in answer to a question put to him by or before an election court shall not, except in cases of indictment for perjury, be admissible in evidence in any proceeding, civil or criminal.*

(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 expenses of providing a court, but otherwise shall be deemed costs of the petition.†

[The effect of section 7 of 26 & 27 Vict. c. 29 (1863), and section 16 of 35 & 36 Vict. c. 60 (1872), is preserved in this clause].

Repealed by 47 & 48 Vict. c. 70 (1884). See Appendix.

† See Rule 5, Additional General Rules, Jan. 1875.

This section is as follows:-"No person who is called as a witness before any election committee or any commissioners appointed in pursuance of the Act of the session holden in the fifteenth and sixteenth years of the reign of her present Majesty, chapter fifty-seven, shall be excused from answering any question relating to any corrupt practice at, or connected with any election forming the subject of inquiry by such committee or commissioners, on the ground that the answer thereto may criminate or tend to criminate himself: Provided always, that where any witness shall answer every question relating to the matters aforesaid which he shall be required by such committee or commissioners (as the case may be) to answer, and the answer to which may criminate, or tend to criminate him, he shall be entitled to receive from the committee under the hand of their clerk, or from the commissioners under their hand (as the case may be), a certificate stating that such witness was, upon his examination, required by the said committee or commissioners to answer questions or a question relating to the matters aforesaid, the answers or answer to which criminated or tended

Petitions.