441 CHAPTER XI. EVIDENCE. 1. Committee bound by Rules of Evidence. 3. Of Examining Witnesses. 4. Evidence confined to Matters in issue. 5. Party objecting must prove his Case. 6. Best Evidence to be given. 7. On Secondary Evidence. 8. Notice to Produce. 9. Hearsay not Evidence. 10. Proof of Poll-book,-English, Irish, Scotch. 11. Proof of Tender at the Election. 12. Proof of Registers,-English, Irish, Scotch. 13. Proof of Objections, &c., at the Revision of the Lists. 1. Rules of Evidence same as in Courts of Law.] The select committee, to which an election petition is referred, is a judicial tribunal, and ought therefore to be bound by the established rules of evidence (a). It (a) In former times committees were seldom guided by any certain rules in dealing with points of evidence, in modern times, however, committees have acted in a less arbitrary manner, and have endeavoured to be guided by the strict rules of evidence. It has therefore been deemed advisable to omit the conflicting decisions contained in older works on Election Law. is not proposed to enter at large in this work, into the question of what is legal evidence, as that can be much better ascertained by referring to the treatises on that subject; but merely to point out some of the leading rules of evidence, and the mode of proving those matters, which belong peculiarly to election practice. The mode of summoning witnesses to appear before committees has been already described in the Chapter on PRACTICE. 2. Who may be Witnesses.] The recent changes in the Law of Evidence have entirely removed all those questions that used formerly to be raised concerning the competency of witnesses. By the 6 & 7 Vict. c. 85, “An Act for improving the Law of Evidence," it was enacted, "That no person offered as a witness shall hereafter be excluded by reason of incapacity from crime, or interest, from giving evidence either in person or by deposition, according to the practice of any Court on the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action or proceeding in any Court, or before any Judge. Proviso.-It was, however, provided that this act should not render competent any party to any suit, action or proceeding, individually named in the record, &c., or the husband or wife of such persons. The 11 & 12 Vict. c. 98, s. 83, empowered the committee "to examine any person who has subscribed the petition which such select committee are appointed to try, unless it otherwise appear to such committee that such person is an interested witness." In the Bewdley case, 1848, Minutes, 314, much discussion took place as to whether a person who had entered into the recognizances could be examined as a witness. See Ipswich, K. & O. 389; St. Alban's, 1851, Minutes, 59; 2nd Cheltenham, 1848, Printed Minutes, p. 2. 66 By the recent statute 14 & 15 Vict. c. 99, An Act to amend the Law of Evidence," all these questions will be obviated in future. The first section of this act repeals the proviso in sect. 1 of 6 & 7 Vict. c. 85; and it is enacted by the second section, "on the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action or other proceeding in any Court of justice, or before any person having by law, or by consent of parties, authority to hear, receive and examine evidence, the parties thereto, and the persons in whose behalf any such suit, action or other proceeding may be brought or defended, shall (except as is hereinafter excepted) be competent and compellable to give evidence, either vivá voce or by deposition, according to the practice of the Court, on behalf of either or any of the parties to the said suit, action or other proceeding." 3rd section. "But nothing herein contained shall render any person, who in any criminal proceeding is charged with the commission of any indictable offence, or any offence punishable on summary con viction, competent or compellable to give evidence for or against himself or herself, or shall render any person compellable to answer any question tending to criminate himself or herself, or shall in any crimina proceeding render any husband competent or com pellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband.” The 16 & 17 Vict. c. 83, further amends the law, and provides that husbands and wives, except in criminal proceedings and in proceedings in consequence of adultery, shall be competent and compellable to give evidence; but that no husband or wife shall be compellable to disclose any communication made by the one to the other during the marriage. Petitioners may be examined.] The effect of these enactments will be, to make any person signing the petition, although he may appear otherwise to be interested a competent witness. In like manner the competency of the sureties for the petitioner, to be examined as witnesses, cannot be questioned. Voters in support of their votes.] Though a voter was not a party named on the record, it was the general practice to consider him while his vote was under consideration as a party to the suit, and therefore an incompetent witness. The practice was by no means uniform on this subject. It is clear, however, that now no objection can be raised against the examination of a voter under such circumstances. Candidates and Sitting Members.] Since the passing of 14 & 15 Vict. c. 69, it has been the constant practice, with one exception (a), to allow candidates and sitting members to be examined. In almost every case of a controverted election during the session of 1853, the sitting members, or the candidates recrimi (a) Barnstaple, 1855, 2 P. R. & D. 337. nated upon, were called to disprove the acts of bribery and corruption imputed to them. In one case in that year, Dartmouth, 2 P. R. & D. 154, the petitioners proposed to examine Sir T. H., the sitting member, in support of their case. This was objected to by his counsel on the ground that an election committee was not within the scope of the 14 & 15 Vict. c. 99. And that if the statute did apply the committee had a discretion in the matter. It was answered that the committee had no discretion, and that it was impossible for the Legislature to have used more comprehensive words than appear in the statute. The committee decided, "That the sitting member being admissible as a witness, the petitioners cannot be denied the right to examine him." It seems impossible to contend that the trial of an election petition is not "a proceeding before persons having by law authority to hear, receive and examine evidence." In the Barnstaple case, 1855, the petition contained a charge that Mr. L., the sitting member had procured his election and return by means of a corrupt and illegal agreement. The counsel for the petitioner proposed to call Mr. L. as a witness, with reference to this alleged corrupt transaction. To this his counsel objected, on the ground that the charge, if established, would amount to a criminal offence, and that therefore the inquiry before the committee as to this matter was "a criminal proceeding." The committee after hearing the point fully argued, resolved, "That upon the distinct head of the petition now under consideration, namely, whether the said Mr. L. procured his election and return by means of a corrupt bargain or |