« EelmineJätka »
in Smithfield, being a market overt; in the absence In a former number of this journal, (ante, p. 146, of any statement to the contrary, the inference was, Misw) we considered the question, what or whether that he believed himself possessed of a title as there was any warranty of title annexed to a against the whole world ; and, as the plaintiff contract—not under seal—for the sale of land. could not have purchased in the market-else he The result we then conceived to be deducible from also would have had good title, having purchased the cases, was, that an implied covenant or contract without notice of the infirmity in his vendor's in law was created of an ability to give that interest | title-he was bound to allege in the declaration in the land the vendor proposed to give. We now that the defendant had sold the horse fraudulently, propose to consider the analogous question, as or knowing it not to be his own horse, which the arising from the sale of specific chattels, in which plaintiff failed to prove. This is the oldest and the same rule, if not applied by the existing law, the leading case on this branch of the law, and we trust will ere long be adopted as a settled has been followed in all the subsequent cases. principle.
The practice of selling in market overt all goods In a recent case, Morley v. Attenborough, (13 adapted for ordinary purposes, having almost Jar. 282,) the question was raised, whether the wholly ceased, to follow fairly the analogy afforded law annexed to the sale of a specific chattel an im- by the former state of the law, the correct rule plied agreement on the part of the vendor, of an would appear to be, that the purchaser should, in ability in him to convey, or, as stated by Mr. Baron every instance, have an implied warranty of title Parke, “Where there is a bargain and sale of a where the subject matter of sale is purchased in its specified, ascertained chattel, which operates to known and customary place of sale, the place of transmute the property, and nothing is said about resort for those requiring the thing to be purtitle, what is the legal effect of that contract ? chase; viz., in a shop, as put by Mr. Baron Parke, Does the contract necessarily import, unless the for the sale of that particular class of goods. The contrary be expressed, that the vendor has a good indefeasible title given to the vendee amounted to title, or has it merely the effect of transferring an implied warranty; and, as the common law, when such title the vendor has ?"
did not follow up this rule, The facts on which the question arose were as by giving an absolute title out of market overt, yet follows:- The plaintiff was the purchaser of a we think in lieu thereof its principles attached an harp, sold by auction as an unredeemed pledge. implied warranty of title where the purchase was The harp had been pledged by a person who had made in the place customarily used for such transa no title, and the real owner obliged the plaintiff to actions; and, if not, then the vendee purchased on give it up, after it had been delivered to him by his own responsibility, and was remediless if his venthe defendant. Of the want of title in the pawner, dor's title was incomplete, unless he had an express the defendant was ignorant. Under these circum- warranty, or had averred and could prove fraud. stances, the Court was of opinion that there was The judgment in the principal case appears to do implied warranty of title—“that the vendor us to establish this proposition. Mr. Baron Parke, most be considered as selling merely the right to in his judgment (p. 285), after stating what apthe pledge which he himself had.”
peared to him to be the general rule,“ that there The judgment of the court is not confined to is no implied warranty of title on the sale of the application of the legal principles applicable to goods,” says, “the question on each case where the facts before them. The rule is laid down, that there is no warranty in express terms, will be, generally no such implied warranty exists ; but that whether there are such circumstances as to be an it would be inferred from the usage of the trade, equivalent to such a warranty. Usage of trade, if or where the articles were purchased in a shop proved, as a matter of fact, would, of course, be professedly carried on for the sale of goods. The sufficient to raise an inference of such an engagejudgment was principally founded on the rule of ment; and, without proof of such usage, the
very the old law-one, we think, ill adapted to the cir- nature of the trade may be enough to lead to the cumstances of the present generation, and which conclusion that the person carrying it on must be the enlightened spirit of modern law-givers has understood to engage that the purchaser shall enjoy done much to dissolve.
that which he buys as against all persons; and When all sales took place in market overt-the we do not suppose there can be any doubt, then sole recognised place of sale—the common that if articles are bought in a shop professlaw annexed to that sale a complete title against edly carried on for the sale of goods, the shopall except the crown, and, subsequently, a prose keeper must be considered as warranting that cutor to whom restitution was ordered by the those who purchase will have a good title to keep 21 Hed. 8, c. 11. This rule of the common law the goods purchased." These rules, or, rather, gave effectual protection to the vendee. The quesa exceptions to the rule of non-warranty, appear to tion we are now discussing could not arise except include every species of sale made in the place in sales in places not recognised as legitimate for customarily used for that purpose. the purposes of sale, and then the vendor gave The case of Burnet v. Rollitt, (11 Jur. 827,) no implied warranty, the vendee having notice of illustrates this question. There, one person, havthe infirmity in the place of the sale, was entitled ing purchased a carcase of pork from a proto no redress, except for the deceit, if the ven- fessed butcher, did not remove it immediately ; dor wilfully made a fraudulent representation of another person, asking the butcher to sell the same title; and this was the case of Sprigwell v. Allen meat, was referred to the first purchaser, who (Al. 91). There the defendant bought the horse! thereupon sold to the second. The meat proved to be unfit for use; and the Court held that no This decision, though not in terms, in principle implied warranty of quality was created by this establishes the rule followed in the civil law, and contract, the vendor not being a professed dealer. that of France and America,—viz, of implying a This, it will be observed, was a question of war warranty of title by the vendor of goods; the exranty of quality, not of title. But it shews the ceptions, to the general rule stated by Mr. Baron different view the law takes of a person professing Parke, appearing to include almost every species of a particular duty or business, and of a person act legitimate sale. To hold otherwise would leare ing otherwise than in their ordinary calling. every purchaser at the mercy of his vendor, and
A contemporary legal journal (13 Eng. Jur. 141, would cast a doubt on the bonâ fides of every conpart 2,) observing on this case, says :—“That so tract, highly injurious to the interests of a conzfar as the judgment of the Court proceeded on the mercial country, supposed analogy between warranty of title and of quality, the analogy is deficient, as, a shop-keeper does not warrant the quality of the goods sold by
Court Papers him, though he is now to be considered as warant. ing title.” To these observations we cannot assent. To us the analogy appears extremely close, if not
Chancery.--Easter Cerm. complete. No doubt, a shop-keeper does not, in
April 23.-The following gentlemen took the usual oaths every case, warrant the quality of goods sold by on being called to the bar. bim, because they are capable of examination by John Thomas Lloyd, Nicholas Alexander Ball, Joseph the vendee ; but so it is in the case of warranty of Neale M‘Kenna, William James Sidney, William Pendela
ther, Richard Waring Pittar, John Creighton Gray, Tho title; where it is in the power of the purchaser to
mas Perry Lynch, Edward Falconer Litton, William ko. ascertain, or the circumstances of the sale are such
bertson Jones, James Edward Jackson. as to put him upon enquiry as to the state of the title, no implied warranty will arise, Bayley v. Meril, (Cro. Jac. 386 ;) Dyer v. Hargrave, 10 Ves. 507.)
LIST OF CAUSES UNDISPOSED. On the other hand, where the purchaser has no Kirkwood v. Lloyd, report, exceptions and merits. opportunity of examining the goods, merely order. Farrell v. Fleming, pleadings and proofs. ing them from the shopkeeper, there is an implied | Twycross
v. Moore, ditto
ditto. warranty as to their fitness for the particular pur
Dimsdale v. Hemming, ditto ditto. pose they are required for, as in Burnet v. Rollitt
, Simpson v. Synge, pleadings and proofs, order pro con the Court holding that if the purchase had been Smith v. Robinson, plead. & p., bill & an., order pro. con. from a professed dealer, and under the same cir- Newport v. Scott, report, exceptions and merits. cumstances which occurred with the defendant, in Londonderry & Coleraine Railway v. Dimsdale, plead. & p.
Woodrooffe v. Grace, pleadings and proofs, order pro con. that case there would have been an implied war
Alston v. Alcock, pleadings and proofs. ranty of the quality of the meat, at least its fitness
Hillhouse v. Tyndal, ditto ditto. for use, (See Browne v. Edginton, 2 M. & Gr. 279. Baily v. Swan, ditto ditto. Chanter v. Hopkins, 4 M.&W.399; Jonesv. Bright, Lyle v. Lyle, report and merits. 5 Bing. 533.) The conclusion arrived at by the same
Plunket v. Reilly, bill and answer. Journal, -that as no implied warranty of quality Rubie v. English, pleadings and proofs, order pro confesso.
O'Grady v. Barry, pleadings and proofs. arose from the contract, when the purchaser has
Reynolds v. Kelly, reports and merits. had full opportunity himself of examining the sub- Hinds v. Same, ditto ditto. ject of the purchase, that consequently the maxim White v. White, pleadings and proofs for dismiss. careat emptor was inapplicable to the case of Mara v, Tibeaudo, report and merits. warranty of title of goods, where the purchaser has Barron v. O'Brien, ditto ditto.
ditto. not the means of exercising his own judgment, Same v. Maunsell, ditto is, we think, deficient in analogy, if the rule we
Carberry v. Cox, report, exceptions and merits. conceive deducible from the authorities be the Kelly v. Hayes, plead. & proofs, ord. pro con., bill & answer.
Molloy v. French, report and merits. true one, viz: that in cases of warranty, whether Same v, Same, ditto ditto. of title or quality, if the purchaser have the means Murphy v. Linde, report and merits. of ascertaining the true state of facts, he takes on Balfe v. Colgan, pleadings and proofs.
ditto. himself the responsibility, and no warranty is Barton v. Stewart, ditto
Bayly v. O'Connor, ditto ditto. created.
Callaghan v. Callaghan, report and merits. If, on the contrary, the vendor has the sole
Fagan v. Fagan, ditto
ditto. means of knowledge, and the subject be purchased Molony v. Scollard, pleading and proofs, order pro confesso. in the usual place of sale, under ordinary circum- Blakeney v. Blakeney, ditto ditto. stances, and there is nothing in the sale such as Marshall v. Hovendon, return of commission.
Hayden v. Hearne, pleadings and proofs, order pro con. would put a cautious purchaser on inquiry, a
Fishe v. Lawder, ort and merits. warranty of title will be implied.
Orr v. Foster, bill and answer, order pro confesso. The decision of the Court on the particular case
Balfe v. Balfe, pleadings and proofs. before them, is in direct accordance with the view Burrowes v. Attorney-general, report and merits, we have taken. The sale being notoriously of un- Clarke v. Lawder,
ditto ditto. redeemed pledges, the purchaser, in the view of white v. White, pleadings and proofs.
** ditto ditto. the law, must have been aware that he could have Bond v. Coane,
Gartland v. M'Alister, ditto ditto. no better title than his vendor had, which, neces
Murray v. Murray, pleadings and proofs, order pro con. sarily was one qualified by the laws respecting Gordon v. Mahony, pleadings and proofs. pawnbrokers.
Rowland v. Macdonnell, pleadings and proofs, ord. pro coe.
Ronan v. Dickson, pleadings and proofs.
has received from the members of the chairmen's panel the Hatehell v. O'Reilly, ditto ditto.
name of a chairman to serve, the parties in attendance shall Humpbreys v. Bowen, bill and answer.
be called in, and the names of the members so chosen and Maturin v. Wilson, pleadings and proofs.
of the chairman shall be read to them. Shuldham v. Chesney, bill and answer, order pro confesso. 61. That after hearing the said Dames the parties present Knos v. Molloy, pleadings and proofs, order pro confesso. shall be directed to withdraw, and the general committee Forbes v. Bryan, reports and merits.
may proceed to choose another committee to try the next Anderson v. Walker, pleadings and proofs.
petition appointed for that day, and so on until all the comOnge v. Jones, re-hearing.
mittees appointed to be chosen on that day are chosen, or Warnock v. Eccles, ditto ditto.
until the choosing of any committee is adjourned as aforesaid ; and after any such adjournment the general committee shall not transact any more business on that day, except
with regard to those petitions for trying which committees (Continued from p. 192.)
have been previously chosen. 55. That the parties complaining of or defending the elec- 62. That within half an hour at furthest from the time tion or return complained of in any election petition shall, when the parties to any election petition have withdrawn, except in the case herein-before provided for, by themselves or if the parties to any other election petition be then before or their agents, deliver in to the clerk of the general com- the general committee of elections, then, after such other mittee lists of the voters to be objected to, giving in the parties have withdrawn, the parties in attendance shall be said lists the several heads of objection, and distinguishing again called before the general committee in the same oriler the same against the names of the voters excepted to, not in which they were directed to withdraw ; and the petitionlater than 6 o'clock on the 6th day next before the day ap. ers and sitting member, or such party as may have been pointed for choosing the committee to try the petition ; and admitted to defend the return or election, or their agents, the said clerk shall keep the lists in his office open to the beginning on the part of the petitioners, may object to all inspection of all parties.
or any of the members chosen, or to the chairman, as being 56. That the general committee at the time and place then disqualified or excused for any of the reasons aforesaid appointed for choosing the committee, shall choose from the from serving on the committee for the trial of that election panel in service four members, not specially disqualified for petition, but not for any other reason. being appointed on the committee to try such petition, by 63. That if at the least four members then present of the reason of having voted at the election, or by reason of being general committee be satisfied that any member so objected the party on whose behalf the seat is claimed, or related to to is then disqualified or excused for any of the reasous him or to the sitting member by kindred or affinity in the aforesaid, the parties present shall be again directed to with. first or second degree according to the canon law.
draw, and the general committee shall proceed to choose 57. That if four members then present of the general from the same panel another committee to try that petition ; committee of elections do not agree in choosing a committee or if the member to whom any such objection is substantiated to try any election petition the general committee shall ad- be the chairman, they shall send back his name to the memjoorn the choosing of that committee, and of the remaining bers on the chairmen's panel, and the members on the chair. committees appointed to be chosen on the same day, to the men's panel shall proceed to choose another chairman to try following day, and the parties shall be directed to attend that petition, and shall communicate his name to the general on the following day, or if such following day happen during committee, and so as often as the case requires. an adjournment of the house, then on the day to which the 64. That in the second or any following committee the house stands adjourned, and so from day to day until all general committee may, if they think fit, include any of the such committees are chosen, or until the general committee members previously chosen by them to whom no objection of elections is dissolved, as herein-before provided; and the has been substantiated; and no party shall be allowed to general committee shall not in any case proceed to choose a object to any member included in the second or any followcommittee to try an election petition until they have chosen ing committee who was not objected to when included in a committee to try every other election petition standing the committee first chosen. higher in the list aforesaid, the order for referring which 65. That when four members and a chairman have been has not been then discharged, except where the day originally chosen, to none of whom any objection has been substan. appointed for choosing a committee has been changed under tiated, the clerk of the general committee of elections shall the provision herein-before contained.
give notice in writing to each of the members so chosen ; 58. That on the day appointed by the general committee and with every such notice shall be sent a notice of the to choose an election committee the members upon the chair- grounds of disqualification and excuse from serving, and of men's panel shall select one of such members to act as the the time and place when and where the general committee chairman of such election committee, and when they have will meet on the following day; and notice of the time and been informed by the general committee that four members place of such meeting shall be published with the votes. of such election committee have been chosen they shall com- 66. That the general committee shall meet on the followmunicate the name of the member so selected by them to ing day at the time and place mentioned ; and if any such the general committee; but no member shall be so selected member then and there prove, to the satisfaction of at least who would be disqualified from serving on such committee four members then present of the general committee, that if not upon the chairmen's panel : provided always, that if, for any of the reasons aforesaid he is disqualified or excused with reference to any petition for trying which they are from serving on the committee for which he has been so about to appoint a chairman, the members of the chairmen's chosen, or if any such member prove, to the satisfaction of papel receive notice from the Speaker, under the provision | at least four members then present of the general committee, herein-before contained, of the death or vacancy of the seat that there are any circumstances in his case which render of the sitting member petitioned against in such petition, or him ineligible to serve on such select committee, such cirthat it is not his intention to defend his seat, they shall sus. cumstances having regard solely to the impartial character pend their proceedings with regard to the appointment of a of the tribunal, the general committee shall proceed to choose chairman to try such petition until the day appointed by the a new committee to try that petition, as if that member had general committee of elections for selecting a committee to been objected to by any party to the petition ; and if within try such petition.
one quarter of an hour after the time mentioned in the notice 59. That the members upon the chairmen's panel may no member so appear, of if any member so appearing do not make such regulations as they find convenient for securing prove his disqualification or excuse, to the satisfaction of at the appointment or selection of chairman of election com- least four members then present of the general committee, mittees, and for distributing the duties of chairmen among the select committee shall be taken to be appointed. all of them.
67. That at the meeting of the House of Commons for 60. That as soon as the general committee of elections the despatch of business next after any such select committee has chosen four members to try any election petition, and has been appointed the general committee of elections shall
report to the house the names of the select committee ap- more than 24 hours, exclusive of such Sunday, Christmas pointed, and shall annex to such report all petitions referred day, or Good Friday, without leave from the house, upon to them by the house which relate to the return or election motion, and special cause assigned; and if the house be sit. of which such select committee is appointed to try the merits, ting at the time to which such select committee is adjourned, and all lists of voters which shall have been delivered to them then the business of the house shall be stayed, and a motion by either party, and such report shall be published with the shall be made for a further adjournment for any time to be votes.
fixed by the house: provided that if such select committee 68. That at or before 4 o'clock on the next day on which have occasion to apply or report to the house, and the bouse the house meets for the despatch of business after such report be then adjourned for more than 24 hours, such select com. the five members chosen to be the select committee shall mittee may also adjourn to the day appointed for the meeting attend in their places, and shall before departing the house of the house. be sworn at the table by the clerk well and truly to try the 74. That no evidence shall be given before the select commatter of the petitions referred to them, and a true judgment mittee, or before any commission issued by such committee, to give according to the evidence, and shall be taken to be against the validity of any vote not included in one of the La select committee legally appointed to try and determine lists of voters delivered to the general committee, or upon the merits of the return or election so referred to them, ány head of objection to any voter included in any such list and the legality of such appointment shall not be called in other than one of the heads specified against him in such list. question on any ground whatever ; and the member so ap- 73. That no member of any such select committee shall pointed from the chairmen's panel shall be the chairman of absent himself from the same without leave from the house, such committee ; and they shall not depart the house until or an excuse allowed by the house at the next sitting thereof, the time for the meeting of such committee is fixed by the for the cause of sickness, verified upon the oath of his medi house.
cal attendant, or for other special cause shown upon cath, 69. That if any member of the said select committee do and in every such case the member to whom such leare is not attend in his place within one hour after 4 o'clock on granted or excuse allowed shall be discharged from attend. the day appointed for swearing the said committec (provided ing, and shall not be entitled again to sit or vote on such the house sits so long, or if not, then within the like time committee: and such select committee shall never sit until on the following day of sitting,) or if, after attending, any all the members to whom such leave has not been granted, member depart the house before the said committee is sworn, nor excuse allowed, are met; and in case all such members unless the committee be discharged, or the swearing of the do not meet within an hour after the time appointed for the said committee be adjourned, he shall be ordered to be taken first meeting of such committee, or within an hour after the into the custody of the serjeant at arms for such neglect of time to which such committee has been adjourned, a further his duty, and shall be punished or censured, at the discre- adjournment shall be made, and reported to the house by tion of the house, unless it appear, by fact specially stated, their chairman, with the cause thereof. and verified upon oath, that such member was by a sudden 76. That every member whose absence without leave or accident or by necessity prevented from attending.
excuse is so reported shall be directed to attend the bonne 70. That if any such absent member be not brought into at its Dext sitting, and shall then be ordered to be taken the house within three hours after 4 o'clock on the day first into the custody of the serjeant at arms, and shall be punished appointed for swearing the said committee (provided the or censured, at the discretion of the house, unless it appear, house sits so long, or if not, then within the like time on by facts stated, and verified upon oath, that such member the following day of sitting,) and if no sufficient cause be was by a sudden accident or by necessity prevented from shown whereon the house dispenses with the attendance of attending the said select committee. such absent member, the swearing of the committee shall 77. That an election committee shall not be dissolved by be adjourned to the next meeting of the house : and all the reason of the death or necessary absence of one or two memmembers of the said committee shall be bound to attend in bers thereof only, but the remaining members shall thencetheir places, for the purpose of being sworn, on the day of forward constitute the committee; and if there ever be occathe next meeting of the house, in like manner as on the day sion for electing a new chairman on the death or necessary first appointed for that purpose.
absence of the chairman, the remaining members of the com. 71. That if on the day to which the swearing of the said mittee shall elect one of themselves to be chairman, and if committee is so adjourned all the members of the committee in that election there be an equal number of voices the memdo not attend, and be sworn, within one hour after 4 o'clock ber whose name stands foremost in the list of the committee (provided the house sits so long, or if not, then within the as reported to the house shall have a casting vote. like time of the following day of sitting,) or if on the day 78. That if the number of members able to attend any first appointed for swearing the said committee sufficient such select committee be, by death or otherwise, reduced cause be shown to the house before its rising why the atten- to less than three, and so continue for the space of three dance of any member of the committee should be dispensed days, such select committee shall be dissolved (except in the with, the said committee shall be taken to be discharged ; case herein-after provided,) and another shall be appointed and the general committee shall meet on the following day, to try the petition referred to such committee; and the genieor if such following day happen during an adjournment of ral committee and members of the chairmen's panel shall the house, then on the day to which the house stands ad.
meet for that purpose as soon as conveniently may be after journed, and shall proceed to choose a new committee from the occasion arises, at a day and hour to be appointed by the panel on service for the time being, in the manner herein the general committee, and notice of such meeting shall be before provided, and notice of such meeting shall be pub- published with the votes; and all the proceedings of such lished with the votes.
former committee shall be void and of no effect : provided, 72. That the house shall refer the petitions and lists an.
that if all the parties before the committee consent, the two nexed to the report of the general committee of elections to remaining members of the committee, or the sole remaining the select committee so appointed and sworn, and shall order member if only one, shall continue to act, and shall tbence. the said select committee to meet at a certain time, within forward constitute the committee. 24 hours of their being sworn at the table of the house, un- 79. That whenever any such select committee thinks it less a Sunday, Christmas day, or Good Friday, intervene; necessary to deliberate among themselves upon any question and the place of their meeting shall be some convenient room arising in the course of the trial, or upon the determination or place adjacent to the House of Commons.
thereof, or upon any resolution concerning the matter of the 73. That every such select committee shall meet at the petition referred to them, as soon as they have heard the time and place appointed for that purpose, and shall proceed evidence and counsel on both sides relative thereto, the room to try the merits of the election petition so referred to them, where they sit shall be cleared, if they think proper, whilst and they shall sit from day to day, Sunday, Christmas day, the mombers of the committee consider thereof. and Good Friday only excepted, and shall never adjourn 80. That all questions before the committee, if for the for a longer time than 24 hours, unless a Sunday, Christ. time being consisting of more than one member, shall be mas day, or Good Friday intervene, and in such case not decided by a majority of voices; and whenever the voices are equal the chairman shall have a casting voice; and no so prorogued ; and such committee shall meet on the day member of the committee shall be allowed to refrain from and hour to which it is so adjourned, and shall thenceforward voting on any question on which the comnittee is divided. continue to sit from day to day, until they have reported to
81. That whenever the select committee is divided upon the house their determination on the merits of such petition. any question, the names of the members voting in the affir- 89. That whenever any committee appointed to try an mative and in the negative shall be entered in the minutes election petition reports to the house that such petition was of the said committee, and shall be reported to the house, frivolous or vexatious, the parties, (if any.) who have apwith the questions on which such divisions arose, at the peared before the committee in opposition to such petition, same time with the final report of the committee.
shall be entitled to recover from the persons, or any of them 82. That every such committee shall be attended by a who signed such petition, the full costs and expenses which short-band writer, appointed by the clerk of the House of such parties have incurred in opposing the saine, such costs Commons, and sworn by the chairman truly to take down and expenses to be ascertained in the manner herein-after the evidence, and from day to day, as occasion requires, directed. to write or cause the same to be written in words at length. 90. That whenever such committee reports to the house
83. That every such select committee may send for per that the opposition made to any such petition by any party sods, papers, and records, and may examine any person who appearing before them was frivolous or vexatious, the perhas subscribed the petition which such select committee are sons who signed such petition shall be entitled to recover, appointed to try, unless it otherwise appear to such com- from the party with respect to whom such report is made mittee that such person is an interested witness, and they the full costs and expenses which such petitioners have in. shall examine all the witnesses who come before them upon curred, such costs and expenses to be ascertained in the oath, which oath the clerk attending such select committee manner herein-after directed. may administer; and if any person summoned by such select 91. That whenever no party has appeared before any such committee, or by the warrant of the Speaker, (which war- committee in opposition to such petition, and such committee rants the Speaker may issue as he thinks fit,) disobey such reports to the house that the election or return, or the omis. summons, or if any witness before such select committee sion or insufficiency of a return complained of in such petigive false evidence or prevaricate, or otherwise misbehave tion, was vexatious or corrupt, the persons who signed such in giving or refusing to give evidence, the chairman of such petition shall be entitled to recover from the sitting members select committee, may at any time during the course of their (if any) whose election or return is complained of in such petiproceedings report the same to the house for the interposi- tion (such sitting members not having given notice of their tion of the authority or censure of the house, and may, by intention not to defend the same,) or from any other persons a warrant under his hand directed to the serjeant at arms, admitted by the house to oppose such petition, the full costs or to his deputy or deputies, commit such person (not being and expenses incurred in prosecuting the petition, such costs a peer of the realm or lord of parliament) to the custody of and expenses to be ascertained in the manner herein-after the said serjeant, without bail or mainprize, for any time directed. not exceeding 24 hours, if the house be then sitting, and if 92. That if any ground of objection be stated against any not, then for a time not exceeding 24 hours after the hour voter in any list of voters intended to be objected to, and if o which the house stands adjourned.
such select committee be of opinion that such objection was 84. That where in this act anything is required to be frivolous or vexatious, they shall report the same to the verified on oath to the House of Commons, the clerk of the House of Commons, together with the other matters relat. House of Commons may administer an oath for that purpose, ing to the said petition, and the opposite party shall in such or an affidavit for such purpose may be sworn before any jus. case be entitled to recover from the party on whose behalf tice of the peace or master of the high Court of Chancery. any such objections were made the full costs and expenses
85. That every person who wilfully gives false evidence incurred by reason of such frivolous or vexatious objections, before the House of Commons, or before any election com- such costs and expenses to be ascertained in the manner mittee, or before the examiner of recognizances or taxing herein-after directed. officer of the House of Commons, under the provisions of 93. That if either party make before the said select com. this aet, or who wilfully swears falsely in any affidavit shall, mittee any specific allegation with regard to the conduct of on conviction thereof, be liable to the penalties of wilful and the other party or his agent, and either bring no evidence, corrupt perjury.
or such evidence that the committee is of opinion that such 86. That every such select committee shall try the merits allegation was made without any reasonable or probable of the return or election complained of in the election peti- ground, the committee may make such orders for the paytion referred to them, and shall determine by a majority of ment, by ihe party making such unfounded allegation, to voices, whether the sitting members or either of them, or the other party, of all costs and expenses incurred by reason any and what other person, were duly returned or elected, of such unfounded allegation, such costs and expenses to be or whether the election be void, or whether a new writ ascertained in the manner berein-after directed. ought to issue, which determination shall be final between 94. That the costs and expenses adjudged by any such the parties; and the house, on being informed thereof, shall select committee to be paid, or which otherwise may become order such report to be entered in their journals, and sball payable, under the provisions of this act or the said recited give directions for confirming or altering the return, or for act of the 8th Vic., to any party prosecuting or opposing or ordering a return to be made, or for issuing a writ for a new preparing to oppose any election petition, or to any witness election, or for carrying the said determination into execu- summoned to attend before any committee, under the protion.
visions of this or the said recited act, shall be ascertained 87. That if any such select committee come to any reso in manner following ; (that is to say,) on application made lution other than the determination above mentioned, they to the Speaker of the House of Commons by any petitioner, shall, if they think proper, report the same to the house, party, or witness, for ascertaining such costs and expenses, and the house may confirm or disagree with such resolution, not later than three calendar months after the determination and make such orders thereon as to them seems proper. of the merits of such petition, or after any order of the house
88. That if the parliament be prorogued after the appoint- for discharging the order of reference of such petition, to ment of any select committee for the trial of any election the general committee of elections, or after the withdrawal petition, and before they have reported their determination of any petition as herein-before provided, the Speaker shall thereon, such committee shall not be dissolved by such pro- direct the same to be taxed by the examiner of recognizancs rogation, but shall be thereby adjourned till 12 o'clock on or by the taxing officer of the House of Commons; and the the day immediately following that on which parliament said examiner or taxing officer shall examine and tax such meets again for the despatch of business (Sunday, Goud costs and expenses, and shall report the amount thereof, Friday, and Christmas day, always excepted ;) and all pro. together with the name of the party liable to pay the same, ceedings of such committee and of any commission to take and the name of the party entitled to receive the same, to evidence issued under the authority of such committee shall the Speaker, who shall, upon application made to him, deliver be of the same force and effect as if parliament had not been to the party a certificate, signed by himself, expressing the