Page images
PDF
EPUB

Expenses may be demanded.] A witness has a right to demand the expenses necessary to enable him to come before the committee, before he gives his evidence. Southampton, Bar. & Aust. 380; Lyme Regis, ib. 460. Any other expenses he must apply for to the Speaker, under sect. 94 of 11 & 12 Vict. c. 98 (a).

Witnesses to withdraw.] As has been before observed, one of the preliminary resolutions is, “ that no person shall be examined as a witness who shall have been in the room during any of the proceedings, with the exception of the agents whose names shall be handed in without the special leave of the committee.

The number of persons who may remain as agents is sometimes limited. In the Reading case, Bar. & Aust. 413, a town agent, a country agent and a clerk were allowed on each side. In the 2nd Ipswich case, Bar. & Aust. 586, in addition to the professional agents, the committee allowed two persons, not being professional persons, to remain on each side in the capacity of agents. This was done on the ground that their local knowledge rendered their presence in the room of importance in conducting the case.

It was held in the Aylesbury case, 2 Peck. 265, that a member of the House, not being a member of the committee, has no more right to remain than any

[ocr errors]

(a) Where a witness from the country, who had been subpænaed there by the defendant, without receiving sufficient to pay his expenses to town, was afterwards when in London subpænaed by the plaintiff and was called by him on the trial, objected to give evidence because he had not been paid enough; the Judge ruled that he must give his evidence, as the plaintiff who called him was not bound to pay his expences, and that having been examined he must submit to be cross-examined for the defendant Ede monds v. Pearson, 3 C. & P. 113.

[ocr errors]

other person. In the Galway, Peck. 523, a member of the House who remained in the committee room after he had been informed that he would be called as a witness, was examined, and see Southampton case, Bar. & Aust. 393.

The practice generally adopted during the session of 1853, and to the end of the last Parliament, was to allow sitting members and petitioners to be examined notwithstanding that they had been present in the committee room during the inquiry. Taristock, Bridgenorth, Chatham, Wigton Burghs, 8c., 2 P. R. & D.

A person, not a professional man but a partner of the sitting member, was permitted to remain in the room as an agent, though he might be called as a witness. Lincoln, 1 P. R. & D. 77. The reporter for a local newspaper and the town clerk were by consent of parties permitted to remain in the room notwithstanding that it was intended to call them as witnesses, and they were examined in the case. Lei. cester, ib. 176.

The names of two non-professional men were not allowed to be retained on the list of agents of the petitioner, but were allowed to remain in the room, no objection to be taken by either side if they were called. Huddersfield, ib. 276. The same committee ordered every one served with a warrant to leave the

room,

It has been stated that an exception to the general rule of being obliged to withdraw, has been made in favour of barristers. Southwark, 2 Peck. 167. But it seems very doubtful whether any such privilege exists except for those barristers who are engaged as

[ocr errors]

counsel in the case ; if any others are present in the committee room, they come in as part of the public.

The rule is in general strictly observed. Carlow, F. & F. 62; Sudbury, Bar.& Aust. 414. Where a witness, after notice has been given to him to withdraw, came into the room to avoid being examined, the committee ordered him to be examined. O.cford, P. & K. 104. In the 1st Southwark case, Clifford, 108, a witness had been in the room for four days before he was summoned ; after that he had absented himself from the room.

The committee, after deliberation, determined that the witness, under the peculiar circumstances of the case might be examined. See 2nd Horsham, 1 P. R. & D. 253.

In the 2nd Cheltenham, 1848, ib. 228, a witness was called in consequence of something said by the preceding witness ; till then the petitioners had not intended to call him. He had been in the room during the examination of the preceding witness. The committee said they were reluctant to exclude evidence, but it was better to adhere to the rule. See also Great Marlow, Bar. & Aust. 98. - In cases of scrutiny, where assessors and collectors are frequently called, they have been allowed to remain in the room the whole day by the consent of parties. Middlesex, 2 Peck, 135; see also Reading, Bar. & Aust. 413, where a witness attending in an official capacity to prove the poll was allowed to remain in the room. Aylesbury, 1 P. R. & D. 86. A witness called to prove handwriting (a).

(a) A witness who had remained in the room after his examination was not permitted to be recalled to prove handwriting. Kidderminster, 1 P.R. & D. 265.

Witnesses are ordered to withdraw when the petition has been read; they ought not to hear the opening speech any more than the evidence. See 2nd Horsham, 1 P. R. & D. 253.

If a witness remains in court at Nisi Prius in contravention of an order to withdraw, he renders himself liable to fine and imprisonment for the contempt ; and until lately it was considered that the Judge, in the exercise of his discretion, might even exclude his testimony. But it seems to be now settled that the Judge has no right to reject the witness on this ground, however much his wilful disobedience of the order may lessen the value of his evidence. 2 Taylor on Evid. 1088; Cook v. Nethercote, 6 C. & P. 743; Thomas v. David, 7 C. & P. 350; R. v. Colley, 1 Moo. & M. 329; Cobbett v. Hudson, 1 E. & B. 14, S.C. 22 L.J. Q. B. 13; see also Doe d. Good v. Cox, 1 Clifford's Southwark case, 114, 6 C. & P. 743.

Course of Proof.] In all cases the first thing to be proved is that there was an election; Reading, Bar.& Aust. 414, and cases there cited; and this is proved by the production of the poll-books, together with the writ and return.

In English and Irish cases these are produced by a clerk from the office of the clerk of the Crown. In Scotch cases the mode of proof is different: this will be considered in the Chapter on EVIDENCE.

A witness called to produce the poll cannot be crossexamined then as to other matters. Ipswich, 1 K. & 0. 339; Weymouth, Bar. & Aust. 106; Waterford, 1 P. R. & D. 85 (a).

(a) See cases cited, Coventry, P. & K. 352.

The next step taken in general is to call upon the petitioners to prove their right to petition. The pollbook will prove that a person of the same name was the candidate or the voter. Evidence may then be given to identify them. Chester county, 1848 (a). The petitioner may now be called to shew that he is the voter. The evidence is then proceeded with according to the nature of the inquiry.

Course of Proceeding.) When the evidence on behalf of the petitioners is concluded, as to that part of the case which is at the time before the committee, the junior counsel sums up (6). The counsel for the sitting member then opens

his case; if he calls no witnesses the petitioner cannot reply. If he calls witnesses, the evidence is summed up and the petitioner replies, and the committee then decide on that part of the case which is before them. See Bodmin, 1 P. R. & D. 135; 2nd Horsham, ib. 254.

If the seat is claimed in the petition, the sitting member may then proceed to disqualify the petitioner or person on whose behalf the seat is claimed. It is always better to dispose of this part of the case before entering on the scrutiny, for much time and labour will be lost, and great expense unnecessarily incurred, if it should appear that the party for whom the seat

(a) I P. R. & D. 215; 2nd Sligo, 1 P. R. & D. 210.

(b) Committees sometimes refuse to hear more than one counsel upon a point of law which arises incidentally in a case, 2nd Sligo, 1 P. R. & D. 210; Cockermouth, 2 P. R. & D. 165; 2nd Lancaster, 1 P. R. & D. 151. In the Athlone case, 1853, Mins. p. 10, the committee refused to come to any such resolution. It cannot be laid down that there is any fixed rule upon the subject.

« EelmineJätka »