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Withdrawal of petition.
95.-(1.) A petitioner shall not withdraw an election 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.*
(After an 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 both parties to submit to arbitration. The award being against petitioner, he asked leave to withdraw his petition, and the Court assented. Mallam v. Bean, 51 J P. 231].
(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.I
(4.) If the proposed withdrawal is in the opinion of the court ioduced 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 bythe substituted petitioner,and that to the extentofthesum 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, 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 If a petition is withdrawn, the petitioner shall be liable to pay the costs of the respondent.
(8.) Where there are more petitioners than one, an application
to criminate him, and had answered all such questions or such question ; and if any
See General Rules, 47.
to withdraw a petition shall not be made except with the consent Election
Petitions, of all the petitioners.
[The effect of section 17 of 35 & 36 Vict. c. 60 (1872) is preserved in this clause).
96.-(1.) An election petition shall be abated by the death Abatement of a 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 inight 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 80 substituted, as in the case of a new petition,
[The effect of section 17 of 35 & 36 Vict. c. 60 (1872) is preserved in this clause).
and substitution of respondents.
97.-(1.) If before the trial of an election petition a Withdrawal respondent other than a returning officer(a.) Dies, resigns, or otherwise ceases to hold the office to
which the petition relates ; t or [If any of these events take place after notice of trial has been given, but before the trial has commenced, the Master is to countermand the notice of trial.—Rule 6, Additional General Rules, Jan. 1875). (6.) Gives the prescribed notice that he does not intend to
oppose the petition ; 1 [It has been held that this does not entitle him to have his name struck out of the petition: Yates v. Leach (L. R., 9 C. P., 605). As to the effect if all the respondents give this notice, see Rule 7, Additional General Rules, January, 1876). 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 to be admitted as a respondent to oppose the petition, and shall be
* See General Rules, 50.
See General Rules, 52, 53.
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.
[The effect of section 18 of 35 & 36 Vict. C. 60 (1872) is preserved by this clause).
Costs on election petitions.
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.
[To obtain the costs ordered by a commissioner to be paid under this Act, and to take proceedings under Rule 55, the order of the commissioner should first be made a rule of court. The entry of the order by the registrar is sufficient, and such order need not be endorsed on the petition by the commissioner. Pure v. Hartshorn (31 L. T., N. S., 486, S. C.). Determination of election court as to payments must be in writiug and form part of the record, otherwise invalid. Election court for the trial of petitions under Municipal Elections Act, 1872, 35 & 36 Vict. c. 60, 8. 22, a court of record. Where barrister appointed to try petition omitted to order the payment by the respondent of moneys advanced by commissioners under s. 22, limiting his order to expenses incurred by town clerk in receiving court under s. 20, held that the Queen's Bench Division could not amend the barrister's order so as to make it include the payment of such remuneration and allowances. Reg. v. Corporation of Maidenhead (2 L. R., Q. B. Div., vol. 8, p. 339.) Held also, notwithstanding such omission, that the act of the commissioners in certifying was a ministerial and not a judicial act, and that they had the power and were bound to make a second certiticate, and were entitled to a peremptory mandamus compelling the treasurer to repay to them the amount of such remuneration and allowances out of the borough fund or rate, and compelling the corporation to order such annount to be levied by a borough rate).
(2.) The costs may be taxed in the prescribed manner, but according to the same principles as costs between solicitor and t
As to costs, see Lorering v. Dauson (44 L. J. R., (n. s.) O. P. 321). The full court cannot review the decision of the commissioner. The costs of and incidental to a petition under the Corrupt Practices (Municipal Elections) Act, 1872, are in the sole and absolute discretion of the commissioner who tries the petition; and his decision cannot be reviewed by the superior court, how lagrantly wrong soever it may be. Maidenhead Election Perition (2 Q. B. D. 8, 339).
+ See footnote to next page.
client in an action in the High Court, and may be recovered as Election
Petitions. the costs of such an action, or as otherwise prescribed.*
(The court will not interfere with the discretion of the Master as to the amount allowed for counsel's fees and refreshers, unless it be manifest that he has failed to exercise it in a reasonable manner. Hargreaves v, Scott (L. R., C. P. D. 4, p. 21), Municipal Election Petition, Borough of Carlisle].
(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 Court, every person who has under this Act entered into a recognisance relating to the petition shall be held to have made default in the recognisance, and the prescribed officer shall thereon certify the recognisance to be forfeited, and it shall be dealt with as a forfeited recognisance relating to a parliamentary election petition.
[The effect of section 19 of 36 & 36 Vict. c. 60 (1872) is preserved in this clause).
99.-(1.) The town clerk shall provide proper accommoda- Reception of tion for holding the election court; and any expenses incurred on the election by him for the purposes of this section shall be paid out of the borough fund or borough rate.
(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 contiuues.
(3.) The election court may employ officers and clerks as prescribed.
(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,
* So much of this subsection as relates to the principles of taxation was repealed by 47 & 48 Vict. c. 70. (1881), which, however, practically re-enacted the provisions herein. See Appendix.
shall be treated as part of the expenses incurred in receiving the court.
[The effect of section 20 of 35 & 36 Vict. c. 60 (1872) is preserved in this clause].
Rules of procedure and jurisdiction.
100.-(1.) The judges for the time being on the rota for the trial of parliamentary election petitions, may from time to time make, revoke, and alter General Rules for the effectual execution of this part, and of the intention and object thereof, and the regulation of the practice, procedure, and costs of municipal election petitions, and the trial thereof, and the certifying and reporting thereon.
[The judges made General Rules— November 20, 1872 ; Additional General Rules, December 10, 1872, January 27, 1875, and under Part IV. of this Act on April 17, 1883. See Appendix].
(2.) All such rules shall be laid before both Houses of Parliament within three weeks after they are made, if Parliament is then sitting, and if not, within three weeks after the beginning of the then next session of Parliament, and shall, while in force, have effect as if enacted in this Act.
(3.) Subject to the provisions of this Act, and of the rules made under it, the principles, practice, and rules for the time being observed in the case of parliamentary election petitions, and in particular the principles and rules with regard to agency and evidence, and to a scrutiny, and to the declaring any person elected in the room of any other person declared to have been not duly elected, shall be observed, as far as may be, in the case of a municipal election petition.
(4.) The High Court shall, subject to this Actt have the same powers, jurisdiction and authority with respect to a municipal election petition and the proceedings thereon as if the petition were an ordinary action within its jurisdiction.
(Lord Coleridge: “The court has power under this clause to strike out the name of a person improperly made a respondent to an election petiti n.” Yates v. Leach (L. R., 9 C. P., 605-608)].
(5.) The duties to be performed by the prescribed officer under this Part shall be performed by the prescribed officer of the High Court.
(6.) The General Rules in force at the commencement of this Act with respect to matters within this Part shall, until super
• See Rule 8, Additional General Rules, December, 1872.
+ As to how the words, “subject to this Act,” limit powers of court, see Maude v. Louley (L. R., 9 C. P., 165). See also Lorering v. Dawson (2 L. R. C. P., 267).