(2.) A municipal election shall not be questioned on any or those grounds except by an election petition.

As to petition alleging an illegal practice, see secs. 8 and 25 of the 47 & 48 Vict., c. 70, ante.

Presentation of Petition.

88. (1.) An election petition may be presented either by four or more persons who voted or had a right to vote at the election or by a person alleging himself to have been a candidate at the election (1).

(2.) Any person whose election is questioned by the petition, and any returning officer of whose conduct a petition complains, may be made a respondent to the petition (2). "

(3.) The petition shall be in the prescribed form and shall be signed by the petitioner, and shall be presented in the prescribed manner to the High Court in the Queen's Bench division, and the prescribed officer shall send a copy thereof to the town clerk, who shall forthwith publish it in the borough (3).

(4.) It shall be presented within twenty-one days after the day on which the election was held, except that if it complains of the election on the ground of corrupt practices, and specifically alleges that a payment of money or other reward has been made or promised since the election by a person elected at the election, or on his account or with his privity, in pursuance or furtherance of such corrupt practices, it may be presented at any time within twenty-eight days after the date of the alleged payment or promise, whether or not any other petition against that person has been previously presented or tried (4).

(1) See also sec. 25 of 47 & 48 Vict., c. 70, ante, as to petitions with respect to illegal practices.

(2) An unsuccessful candidate at a municipal election cannot properly be made a respondent to a petition complaining of the election, although he had coalesced for the purposes of the election with two successful candidates so as to be responsible equally with them for any act done by any of the three in furtherance of the common purpose. Lovering v. Dawson and others, L. R., 10 C. P., 711; 44 L. J., C. P., 321; 32 L. T., N.S., 819.

In a case in which A. and B. were candidates for the office of town councillor, A. obtained a majority of votes over B., and he was declared elected, but being disqualified by reason of his being interested in a contract he refused to serve. B. thereupon claimed to have been elected, and having made the requisite declaration, acted on several occasions. A petition was presented alleging that A. was disqualified and that B. was not elected by a majority. A. and B. thereupon gave notice declaring their intention of not opposing the petition. B., however, refused to resign. The court, on an application that the name of B. might be struck out, refused to interfere on the ground that he was properly made a respondent. Yates and others v. Leach and another, L. R., 9 C. P., 605 ; 43 L. J., C. P., 377; 30 L. T., N.S., 790. (3) As to the term "prescribed" and rules of procedure, see secs. 77 and

100.

(4) With respect to petitions alleging illegal practices, see sec. 25 of the 47 & 48 Vict., c. 70, ante.

After the expiration of the time limited for the presentation of the petition, the court have no power to allow any amendment which would substantially be the introduction of a new charge. The petition as presented alleged that burgesses were employed as canvassers for payment and reward in a certain ward, and it was proposed to add the words, "and other wards." Maude v. Lawley, L. R., 9 C. P., 165; 43 L. J., C. P., 105; 29 L. T., N.S., 924.

A petition having been filed on the grounds of treating, bribery, and intimidation, it was found, after inspection of the counterfoils and ballot papers, under an order of the county court judge, that the presiding officer had omitted to enter on the counterfoils in certain cases the number of the voter appearing on the burgess roll, and that in other cases tendered ballot papers were improperly used as ballot papers. The court allowed the petition to be amended by adding paragraphs alleging the above facts. Pickering v. Startin, 28 L. T., N.S., III.

An order having been made by a judge at chambers for the delivery by the petitioners to the respondent of particulars of all persons alleged to have been bribed, and treated, and by whom, when, and where; of all persons alleged to have been retained and employed as canvassers, and by whom, when, and where; and of all persons to whom money was paid or agreed to be paid on account of conveyance of voters to the poll, and by whom, when, and where such moneys were paid or agreed to be paid—the order was allowed by the court, with the addition of the words ". so far as known." Maude v. Lawley, L. R., 9 C. P., 165; 33 L. J., C. P., 105; 30 L. T., N.S., 168; 22 W. R., 649.

A petitioner having omitted to deliver a list of the votes objected to within the time prescribed by the general rules, he applied to the court for leave to give evidence, nunc pro tunc, against the validity of certain votes, and to file a list of objections. It was held that the court had no jurisdiction to grant the application. Neild and others and Batty, L. R., 9 C. P., 104 ; 43 L. J., C. P., 73; 29 L. T., N.S., 747; 22 W. R., 407.

Security for Costs.

89.-(1.) At the time of presenting an election petition or within. three days afterwards, the petitioner shall give security for all costs, charges, and expenses which may become payable by him to any witness summoned on his behalf, or to any respondent.

(2.) The security shall be to such amount not exceeding five hundred pounds, as the High Court, or a judge thereof, on summons, directs, and shall be given in the prescribed manner, either by a deposit of money, or by recognizance entered into by not more than four sureties, or partly in one way and partly in the other.

(3.) Within five days after the presentation of the petition the petitioner shall in the prescribed manner serve on the respondent a notice of the presentation of the petition, and of the nature of the proposed security, and a copy of the petition.

(4.) Within five days after service of the notice the respondent may object in writing to any recognizance on the ground that any surety is insufficient or is dead, or cannot be found or ascertained for want of a sufficient description in the recognizance, or that a person named in the recognizance has not duly acknowledged the

same.

(5.) An objection to a recognizance shall be decided in the prescribed manner.

(6.) If the objection is allowed, the petitioner may, within a further prescribed time not exceeding five days, remove it by a deposit in the prescribed manner of such sum of money as will, in the opinion of the court or officer having cognisance of the matter, make the security sufficient.

(7.) If no security is given, as prescribed, or any objection is allowed and is not removed, as aforesaid, no further proceedings shall be had on the petition.

In Williams v. Mayor of Tenby and others, it was held that these provisions are peremptory, and an appeal against an order of a judge at chambers that a municipal election petition should be taken off the file on the ground that these conditions had not been fulfilled, was dismissed. L. R., 5 C. P. D., 135; 49 L. J., C. P., 325.

As to respondents, see note to sec. 88.

As to the term "prescribed " and rules of procedure, see secs. 77 and 100.

Petition at Issue.

90. On the expiration of the time limited for making objections, or, after objection made, on the objection being disallowed or removed, whichever last happens, the petition shall be at issue.

Municipal Election List.

91. (1.) The prescribed officer shall as soon as may be make a list, in this Act referred to as the municipal election list, of all election petitions at issue, placing them in the order in which they were presented, and shall keep at his office a copy of this list, open to inspection in the prescribed manner.

(2.) The petitions shall, as far as conveniently may be, be tried in the order in which they stand in the list.

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

(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.

As to the term "prescribed," see secs. 77 and 100.

Constitution of Election Court.

92. (1.) An election petition shall be tried by an election court consisting of a barrister qualified and appointed as in this 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.

(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.

(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.

As to the term "prescribed," see secs. 77 and 100.

See also sec. 36 (2) of 47 & 48 Vict., c. 70, ante, as to appointment of commissioners for election petitions.

Trial of Election Petition.

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.

With reference to the term "prescribed," see secs. 77 and 100.

See sec. 27 of the 47 & 48 Vict., c. 70, ante, as to the trial of an election petition being continued de die in diem on lawful days.

As the court for the purposes of the trial of a petition has the same powers and privileges as a judge has on the trial of a parliamentary election petition, the court of a judge who tries an election petition is a court of record, and its judgment can only be proved by the record. R. v. Mayor, &c., of Maidenhead, 51 L. J., (C. A.), Q. B. D., 444.

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

(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.