return his Term; it 17. The decision of the Judge shall be final, and he shall, Judge to immediately after his judgment, return the writ and judgment judgment to with all things had before him touching the same into the the Court in Court from which the writ issued, there to remain of record shall be final as a judgment of the said Court; (f) and he shall, as occasion requires, enforce such judgment by a writ in the nature of a writ of peremptory mandamus, and by writs of execution for the costs awarded. (g) to make rules, &c. 18. The Judges of the Superior Courts of Common Law, The Judges or a majority of them, may, by rules made in Term time, settle the forms of the writs of summons, certiorari, mandamus and execution, and may regulate the practice respecting the suing out, service and execution of such writs, and the punishment for disobeying the same or any other writ or order of the Court or Judge, and respecting the practice generally, in hearing and determining the validity of such elections or appointments, and respecting the costs thereon; and may from time to time rescind, alter or add to such rules: but all existing rules shall remain in force until rescinded or altered as aforesaid. (h) valent to 129. The appointment of members of Municipal Councils Appointwhen required to be made under this Act shall be deemed ments equi elections within the preceding section, and in such cases the Elections. relator may be any member of the council or any electer of the municipality or ward for which the appointment was made. (i) (ƒ) Under the old act, leave was given to appeal from the decision of the Judge, to the full Court. (See The Queen ex rel. McKeown v. Hogg, 15 U. C. Q B. 140.) That privilege was in this bill when introduced to the Assembly but was struck out in committee. The object no doubt is effectually to ensure the summary relief intended. The elections being annual, the delays caused by appeals are calculated to frustrate the objects of an application. (9) For forms of which writs, see APPENDIX. (h) It is the intention of the editor to publish the Rules as an Appendix to this work. If before its completion new rules be framed superseding those promulgated under the old law the new rules shall be so published-otherwise the old rules which by this clause are preserved "until rescinded or altered." (i) The question arose in the case of The Queen on the relation of Beatty v. O'Donoghue, et al. 3 U. C. L. J., 75, whether "appointments" came within the clauses for the summary trial of contested elections, and it was held that they did not. This section supplies the defect which was then felt to exist in the law, and as regards the trial of contested elections places appointments and elections on the same footing. The Council or an Elector may inter vene. Judge shall try summarily. And remove, admit or confirm. avoid personal service; in which case the Judge (q), upon being satisfied thereof by affidavit or otherwise, may make an order for such substitutional service as he thinks fit. (r) 8.-The Judge before whom the writ is returned may allow any person who was entitled to vote at the election to intervene and defend the election, and may grant a reasonable time for the purpose (s); and any intervening party shall be liable or entitled to costs, like any other party to the proceedings. (t) 9.-The Judge shall, in a summary manner, upon statement and answer without formal pleadings, hear and determine the validity of the election (u), and may by order cause the assessment rolls, collectors rolls, poll books, and any other records of the election, to be brought before him, and may inquire into the facts on affidavit or affirmation, or by oral testimony, or by issues framed by him and sent to be tried by jury by writ of trial directed to any court named by the Judge, or by one or more of these means, as he deems expedient. (v) 10.-In case the election complained of is adjudged invalid, the Judge shall forthwith, by writ, cause the person found not to have been duly elected to be removed; and in case the Judge determines that any other person was duly elected, the Judge shall forthwith order a writ to issue causing such other person to be admitted; and in case the Judge determines that refuse to take the copy, if the person serving it bring it away with him, the service will be defective, (Pigeon v. Bruce, 8 Taunt 410,) where the copy was thrust through the crevice of a door to defendant, who had locked himself within, the service was held to be sufficient. (Smith v. Wintle, Barnes 405.) Service upon a wife, agent, or servant, is not personal service. (Frith v. Donegal, 2 Dowl P. C. 527; Davies v. Margon, 2 C. & J. 237; Goggs v. Huntingtower, 1 D. & L. 599; Christmas v. Eicke, 6 D. & L. 156.) See further note ƒ to sec. 34 of the editor's work on the Common Law Procedure Acts. (9) i. e., the Judge before whom the writ is returnable or returned. (r) Such as sticking up the copy in the Crown Office, or office of Deputy Clerk of the Crown. (See note d to sec. 45 of the editor's work on C. L. P. Acts, 1856.) (8) No elector unless one who has either voted or tendered his vote at the election, can be a relator, (see note b to sec. 127,) but any person entitled to a vote may appear and defend the election under the clause here mentioned. The distinction deserves to be noted. (1) See note e to subsec. 16, p. 62. (u) The power is not only to hear but to determine, and the determination is final. (See note f to subsec. 17, p. 63.) (v) For form of writ of trial, see APPENDIX. Members Election to no other person was duly elected instead of the person removed, the Judge shall by the writ cause a new election to be held (u) 11. In case the election of all the members of a Council is If all the adjudged invalid, the writ for their removal and for the elec- ousted, &c., tion of new members in their place, or for the admission of writ for new others adjudged legally elected, and an election to fill up the go to the remaining seats in the Council, shall be directed to the Sheriff Sheriff. of the county in which the election took place (x); and the sheriff shall have all the powers for causing the election to be held, which a Municipal Council has in order to supply vacancies therein. (y) may dis 12. Any person whose election is complained of may, Defendant within one week after service on him of the writ (2), transmit, claim. post-paid, through the post office, directed to "The Clerk of Judge's Chambers, at Osgoode Hall, Toronto," or to "The How to proJudge of the County Court," of the County of (as the ceed. case may be); or may cause to be delivered to such Clerk or Judge a disclaimer, signed by him, to the effect following: (a) "I, A. B., upon whom a writ of summons in the nature of a quo warranto has been served, for the purpose of contesting my right to the office of Township Councillor (or as the case may be) for the township of, in the county of (or as the case may be), do hereby disclaim the said office, and all defence of any right I may have to the same. "Dated the day of 185 . A. B." (w) For forms of writ to meet these three several cases, see APPENDIX. (x) For form of writ, see APPENDIX. (y) Sections 90 and 122 of this act, taken together, show that the Sheriff is to appoint a Returning Officer when an old, has been superseded by a new Council. Where the members of the new Council have been ejected there can be no longer any councillors in possession of the office. The object therefore of this clause is to enable the Sheriff to take the steps necessary to the election or admission of new members with a view to the re-organization of the Council. (2) The writ is to be generally made returnable on the eighth day after service, computed exclusively of the day of service (subsec. 5, p. 59); and the design of this clause is, that the disclaimer, if any should be filed before the writ is returned. (a) When the writ has been issued by direction of a Judge of one of the Superior Courts and is returnable before a Judge of any such court, the disclaimer should be addressed, "To the Clerk of Judge's Chambers, at Osgoode Hall, Toronto," or if returnable before the Judge of the County Court, then to "The Judge of the County Court of the County of, &c." In either case, the disclaimer so addressed Registry of Disclaimer to be deliver 13. Such disclaimer, or the envelope containing the same, shall moreover be endorsed on the outside thereof with the word "Disclaimer," and be registered at the Post Office where mailed. (b) 14. Every person so disclaiming shall deliver a duplicate of ed to Clerk. his disclaimer to the Clerk of the Council, and the Clerk shall forthwith communicate the same to the Council. (c) Costs provided for. When discretionary. 15. No costs shall be awarded against any person disclaiming as aforesaid, unless the Judge is satisfied that such party consented to his nomination as a candidate or accepted the office, in which cases the costs shall be in the discretion of the Judge. (d) 16. In all cases, not otherwise provided for, costs shall be in the discretion of the Judge. (e) may, if preferred, be mailed or else be delivered to the proper Judge or Clerk. If mailed, the envelope must on the outside be endorsed with the word "disclaimer." The letter must also be registered in the office where mailed. (Sub-sec. 13.) (b) See preceding note. (c) This is to apprise the council that the party no longer claims a seat therein. It is made the duty of the Clerk "forthwith" to communicate, &c., as to which see note k to sec. 122. (d) The rule is that the costs of a contested election are in the discretion of the Judge. (Sub-sec. 16.) The exception is where a regular disclaimer is made within the time limited for the purpose, in which case no costs are to be awarded against the party who disclaims. If, however, the Judge be satisfied that the party "consented to his nomination as a candidate, or accepted the office," the case comes within the rule, and not the exception. (e) It was held under Statute 16 Vic. cap. 181, sec. 27, that the Judge had a discretion to withhold costs altogether from either side, if he so thought fit (The Queen ex rel. Swan v. Rowat, 13 U.C.Q.B. 340), or to distribute the costs, that is, to order each party to pay his own costs. (The Queen ex rel. Gardiner v. Perry; Chamber's; Hagarty, J.; May 12, 1857.) Where it was sworn that intending voters for an unsuccessful candidate were obstructed in the approach to the polling place by a crowd under the control of one of the successful candidates, and neither the fact of the obstruction nor the control was unequivocally denied by that candidate, the election as to him was set aside with costs. (The Queen ex rel. Gibbs v. Branighan, Chambers, Richards J. 8 U. C. L. J. 127.) It may be stated that the tendency of modern decisions is not to make a party pay costs unless it be shown that he himself participated in the improper conduct for which the election is set aside. (The Queen ex rel. Davis v. Wilson, et al., Chambers, Richards, J., 8 U. C. L. J. 165.) As to Table of Costs taxable, see APPENDIX. return his Term; it 17. The decision of the Judge shall be final, and he shall, Judge to immediately after his judgment, return the writ and judgment judgment to with all things had before him touching the same into the the Court in Court from which the writ issued, there to remain of record shall be final as a judgment of the said Court; (f) and he shall, as occasion requires, enforce such judgment by a writ in the nature of a writ of peremptory mandamus, and by writs of execution for the costs awarded. (g) rules, &c. 18. The Judges of the Superior Courts of Common Law, The Judges or a majority of them, may, by rules made in Term time, set- to make tle the forms of the writs of summons, certiorari, mandamus and execution, and may regulate the practice respecting the suing out, service and execution of such writs, and the punishment for disobeying the same or any other writ or order of the Court or Judge, and respecting the practice generally, in hearing and determining the validity of such elections or appointments, and respecting the costs thereon; and may from time to time rescind, alter or add to such rules: but all existing rules shall remain in force until rescinded or altered as aforesaid. (h) valent to 129. The appointment of members of Municipal Councils Appointwhen required to be made under this Act shall be deemed ments equi elections within the preceding section, and in such cases the Elections. relator may be any member of the council or any electer of the municipality or ward for which the appointment was made. (i) (ƒ) Under the old act, leave was given to appeal from the decision of the Judge, to the full Court. (See The Queen ex rel. McKeown v. Hogg, 15 U. C. Q B. 140.) That privilege was in this bill when introduced to the Assembly but was struck out in committee. The object no doubt is effectually to ensure the summary relief intended. The elections being annual, the delays caused by appeals are calculated to frustrate the objects of an application. (9) For forms of which writs, see APPENDIX. (h) It is the intention of the editor to publish the Rules as an Appendix to this work. If before its completion new rules be framed superseding those promulgated under the old law the new rules shall be so published-otherwise the old rules which by this clause are preserved "until rescinded or altered," (i) The question arose in the case of The Queen on the relation of Beatty v. O'Donoghue, et al. 8 U. C. L. J., 75, whether "appointments" came within the clauses for the summary trial of contested elections, and it was held that they did not. This section supplies the defect which was then felt to exist in the law, and as regards the trial of contested elections places appointments and elections on the same footing. |